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Agundis v. Rice

United States District Court, N.D. Alabama, Southern Division

July 13, 2018

ELIA A. AGUNDIS, Plaintiff,
v.
JOHN LEON RICE, Defendant.

          MEMORANDUM OPINION

          JOHN E. OTT CHIEF UNITED STATES MAGISTRATE JUDGE

         Plaintiff Elia Agundis, acting pro s e, has sued John Leon Rice in his official and individual capacities for numerous alleged intentional torts and criminal and civil rights violations. (Doc. 68).[1] This action was originally filed in the Southern District of Alabama, but was transferred to this court due to a lack of jurisdiction over the claims. (Doc. 62). Rice has filed two motions to dismiss the second amended complaint on various grounds. (Docs. 76 & 78). Rice has also filed a motion to strike Agundis's brief filed in response to one of the motions to dismiss. (Doc. 89). For the reasons stated below, the court finds that the motion to strike is moot and the motions to dismiss are due to be granted and this case dismissed.

         I. STANDARD OF REVIEW

         To the extent Rice challenges this court's personal jurisdiction over him pursuant to Federal Rule of Civil Procedure 12(b)(2), the court must undertake a two-step inquiry. The court is required to determine whether “the exercise of jurisdiction (1) [is] appropriate under the state long-arm statute and (2) does not violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution.” United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009).

         To the extent Rice challenges whether the second amended complaint states a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure Rule 12(b)(6), the “issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Little v. City of North Miami, 805 F.2d 962, 965 (11th Cir. 1986) (quoting Scheur v. Rhodes, 416 U.S. 232, 236 (1974) (internal quotation marks omitted)). In considering a motion to dismiss, the court assumes the factual allegations in the complaint are true and gives the plaintiff the benefit of all reasonable factual inferences. Hazewood v. Foundation Financial Group, LLC, 551 F.3d 1223, 1224 (11th Cir. 2008).

         Rule 12(b)(6) is read in light of Rule 8(a)(2), which requires “a short and plain statement of the claim showing that the pleader is entitled to relief, ” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)) (internal quotation marks omitted). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citations, brackets, and internal quotation marks omitted). “Factual allegations must be enough to raise a right to relief above the speculative level....” Id. Thus, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face, '” i.e., its “factual content ... allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 557).

         II. AGUNDIS'S CLAIMS

         Agundis alleges multiple claims against Rice in both his individual and official capacities, including a conspiracy to commit assault; assault and battery; trespass; “aggravated cruelty to animals;” witness tampering; “crossing state boundaries to [a] violate protection order;” stalking, breaking and entering; rape; sexual assault; intentional infliction of emotional distress; and outrage. (Doc. 68). The events are alleged to have occurred while Rice was a police officer with the City of Columbus, Mississippi or while he was a deputy sheriff with the Oktibbeha County, Mississippi Sheriff's Department. (Id. at ¶ 1). Agundis appears to be seeking relief, at least in part, pursuant to 42 U.S.C. § 1983. (Id. at 21).

         A. Background Facts According to the Complaint

         Agundis asserts that Rice broke into her Columbus, Mississippi home between July 2012 and December 2013 on multiple occasions to see Agundis's daughter and to steal food and money. (Id. at ¶¶ 2, 6, 22-26 & 39-41). Rice allegedly grew more violent as time went on, and Agundis claims Rice killed her cat in July of 2012, assaulted her (Agundis) various times from July to December 2012, and sexually assaulted and impregnated her in December 2012. (Id. at ¶¶ 4, 7, 8, 20-21, 27-28, 42-52). According to Agundis, Rice returned to her residence in March 2013 as Agundis was going to a doctor's appointment. He pushed her into her house and told Agundis she did not need a doctor because “Africa[n] women don't use doctors to have babies.” (Id. at ¶ 9). Agundis alleges Rice came to the house in July 2013 with a bucket of plaster and forced Agundis's daughter to plaster Agundis's naked body. (Id. at ¶ 10). Agundis further asserts that Rice also attempted to “abduct” her new-born child in September 2013. (Id. at ¶ 11).

         After failing to receive help from various law enforcement agencies in Mississippi, Agundis moved to Gulf Shores, Alabama, in December 2013. (Id. at ¶ 13). Thereafter, she obtained a “Protection [From] Abuse Order” in an Alabama court against Rice. (Id.) According to Agundis, Rice actively avoided being served with the Protection Order. (Id.)

         Agundis alleges she received threatening text messages from Rice subsequent to her move to Alabama. She also states that Rice posted death threats directed at her on social media. (Id. at ¶ 13).

         On December 21, 2015, Agundis was in Birmingham, Alabama to attend a Protection from Abuse hearing. When she arrived at the courthouse with her daughter, Agundis saw Rice and Regina Sykes, another Oktibbeha County deputy sheriff. According to Agundis, Rice identified her to Sykes and Rice had Sykes roll up some “legal documents” and strike her “in the abdomen, causing swelling and bruising.” (Id. at ¶¶ 14 & 17). Agundis asserts that this incident occurred after Rice had been served with a copy of an “emergency protection order, forbidding him or any third-party under his direction [from] contact[ing] or communicat[ing] with [Agundis].” (Id. at ¶ 18).

         To place the foregoing in context, it also is helpful to review various proceedings in the state courts of Mississippi. After Agundis had her child in December 2013, Rice filed suit in the Chancery Court of Oktibbeha County, Mississippi against Agundis, seeking to determine paternity, visitation and custody. (Docs. 17-1; 44-1). Following a trial, the Chancery Court determined Rice was the natural father of the child. The court also awarded the parties joint legal custody of the child, with physical custody remaining with Agundis; visitation for Rice; and child support for the child. (Docs. 17-3 at 172-78; 44-3 at 172). After Agundis moved to Alabama she filed numerous motions opposing the award of visitation rights to Rice. She specifically attempted to have the findings of the Chancery Court set aside. The decision of the Chancery Court was affirmed by the Mississippi Court of Appeals on June 28, 2016. See Adams v. Rice, [2] 196 So.3d 1086 (Miss. Ct. App. 2016).[3] Rice also filed a petition for contempt and modification of child custody in November 2015, alleging that Agundis refused to allow him visitation or contact with their then two-year old child. Adams v. Rice, 2018 WL 2928703 (Miss. Ct. App. Jun. 12, 2018). The Chancery Court found Agundis in contempt for failing to allow Rice to see the child. It also ordered Rice to pay his child support arrearage. Id. at *2-3. Agundis challenged that decision in a pro se appeal. The Mississippi Court of Appeals affirmed the Chancery Court decision on June 12, 2018.

         Rice resigned from the City of Columbus Police Department on February 14, 2013. (Doc. 76-1 at 2, ¶ 5).

         This federal action was filed while the child custody proceedings were still pending in the Chancery Court. (See Docs. 17-3 at 179-245; 44-3 at 179-245). Agundis initially named numerous other Mississippi defendants, including the Chancery Court Judge. (Doc. 1 at 1). All the defendants except Rice previously were dismissed in this action.

         B. Agundis's Second Amended Complaint

         Agundis's second amended complaint is the operative pleading at this juncture. Therein, she asserts thirteen separate claims against Rice in his individual and official capacities as a former police officer for the City of Columbus, Mississippi (the “City”) and as a deputy sheriff for Oktibbeha County, Mississippi (the “County”). She asserts federal claims against Rice purportedly arising under 18 U.S.C. §§ 2261, 2262 and 2265 (doc. 68 at ¶¶ 17 & 34) and under 42 U.S.C. § 1983 (id. at 21). The claims include the following: (1) conspiracy to commit assault (Count I); (2) assault and battery (Count II); (3) trespass (Count III); (4) aggravated cruelty to animals (Count IV); (5) witness tampering (Count V); (6) crossing state boundaries to violate a protection order (Count VI); (7) stalking (Count VII); (8) breaking and entering (Count VIII); (9) rape (Count IX); (10) sexual assault (Count X); (11) invasion of privacy (Count XI); (12) intentional infliction of emotional distress (Count XII); and (13) outrage (Count XIII). (Doc. 68).

         Rice responded to the second amended complaint with two motions to dismiss. The first is advanced by Rice in his official capacity as a former police officer of the City. (Doc. 76). Therein, he alleges the amended complaint is due to be dismissed because there is a lack of personal jurisdiction and because the claims relate to the time he was a Columbus police officer and, therefore, are barred by the statute of limitations. (Id.) The second is advanced by Rice in his individual capacity and his official capacity as a County deputy sheriff. (Doc. 78). Specifically, he alleges the amended complaint is due to be dismissed because (1) Agundis has no private right of action arising under 18 U.S.C. §§ 2262, 2262 or 2265; (2) of insufficient service; (3) of the statute of limitations; (4) Agundis failed to allege that Rice was acting under color of law; (5) Agundis failed to allege that her injuries were the result of a policy, practice, or custom of the public entity employing Rice; (6) Agundis cannot bring a private action for purported criminal acts; (7) the court should not exercise supplemental jurisdiction if the federal claims are dismissed; (8) the court lacks jurisdiction over the Mississippi-based state-law claims; and (9) the court should abstain from or not exercise jurisdiction over Agundis's claims. (Doc. 79 at i-ii).[4]

         III. ANALYSIS

         A. Personal Jurisdiction

         Rice asserts that the claims against him in his official capacity are due to be dismissed because the court lacks jurisdiction over him in his official capacity. (Docs. 77 at 2-3 & 79 at 19- 24). The United States Supreme Court recently has reiterated that “[a] court must have the power to decide the claim before it (subject-matter jurisdiction) and power over the parties before it (personal jurisdiction) before it can resolve a case.” Lightfoot v. Cendant Mortg. Corp., __ U.S. __, 137 S.Ct. 553, 562 (2017). It also is well-settled in the Eleventh Circuit that a court should address issues involving personal jurisdiction before considering the merits of the remaining matters. See Madara v. Hall, 916 F.2d 1501, 1513-14 (11th Cir. 1990). In examining the issue of personal jurisdiction, the following principles apply:

The plaintiff bears the burden of establishing personal jurisdiction over a non-resident defendant. See S & Davis Intern., Inc. v. The Republic of Yemen, 218 F.3d 1292, 1303 (11th Cir. 2000). When the issue of personal jurisdiction is decided on the briefs and accompanying evidence, but without a discretionary evidentiary hearing, a plaintiff satisfies his or her burden by demonstrating a “prima facie case of jurisdiction.” Francosteel Corp, . Unimetal-Normandy v. M/V Charm, Tiki, Mortensen & Lange, 19 F.3d 624, 626 (11th Cir. 1994); Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990). A plaintiff establishes a prima facie case by submitting evidence sufficient to defeat a motion for judgment notwithstanding the verdict. See DeLong Equip. Co. v. Washington Mills Abrasive Co., 840 F.2d 843, 845 (11th Cir. 1988). [Consistent] with that standard of review, the court construes the allegations in the complaint as true if they are uncontroverted by affidavits or deposition testimony. See Bracewell v. Nicholson Air Serv., Inc., 748 F.2d 1499, 1504 (11th Cir. 1984). The Eleventh Circuit has explained on more than one occasion that, “[i]f a plaintiff pleads sufficient material facts to establish a basis for personal jurisdiction and a defendant then submits affidavits controverting those allegations, ‘the burden traditionally shifts back to the plaintiff to produce evidence supporting jurisdiction[, ] unless those affidavits contain only conclusory assertions that the defendant is not subject to jurisdiction.' ” Whitney Information Network, Inc. v. Xcentric Venture, LLC, Slip No. 06-11888, 2006 WL 2243041, *3 (11th Cir. Aug.1, 2006) (quoting Meier v. Sun Int'l Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002)). If the evidence conflicts, the court makes reasonable inferences in favor of the plaintiff, particularly when the jurisdictional questions are seemingly intertwined with the merits of the case. See DeLong, 840 F.2d at 845.

Ashton v. Florala Memorial Hosp., 2006 WL 2864413, *2 (M.D. Ala. Oct 5, 2006). Additionally, as previously noted in this action by United States Magistrate Judge Sojna Bivens:

In an action such as this, the court “undertakes a two-step inquiry to determine whether personal jurisdiction exists: the exercise of jurisdiction must (1) be appropriate under the state long-arm statute, and (2) not violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution.” United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (2009). As noted supra, because Alabama's long-arm provision, Rule 4.2(a) of the Alabama Rules of Civil Procedure, is coextensive with due process requirements, see Waterproofing Co. v. Hanby, 431 So.2d 141, 145 (Ala. 1983), the court need only consider whether the exercise of jurisdiction satisfies the requirements of due process. Oliver v. Merritt Dredging Co., 979 F.2d 827, 830 (11th Cir. 1992). Due process requires both that the defendant have “certain minimum contacts” with the forum state, and if such minimum contacts exist, that the exercise of jurisdiction over the defendant “does not offend traditional notions of fair play and substantial justice.” Burnham v. Superior Court of Calif., 495 U.S. 604, 618, 110 S.Ct. 2105, 109 L.Ed.2d 631 (1990) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). “This two-part test embodies the controlling due process principle that a defendant must have ‘fair warning' that a particular activity may subject it to the jurisdiction of a foreign sovereign." Vermeulen v. Renault, U.S.A., Inc., 985 F.2d 1534, 1545 (11th Cir. 1993).
There are two types of personal jurisdiction: “general” and “specific.” There is general personal jurisdiction over a party when” the cause of action does not arise out of ... the [party's] activities in the forum State, ” but there are “continuous and systematic” business contacts with the forum state. See Consolidated Development Corp. v. Sherritt, Inc., 216 F.3d 1286, 1291 (11th Cir. 2000); see also Sloss Indus. Corp. v. Eurisol, 488 F.3d 922, 925 n.3 (11th Cir. 2007)(“general jurisdiction ... can only be exercised if the defendant has ‘continuous and systematic' contacts with the forum”); Stubbs v. Wyndham Nassau Resort & Crystal Palace Casino, 447 F.3d 1357, 1360 n.3 (11th Cir. 2006) (“General jurisdiction arises from the defendant's contacts with the forum that are not directly related to the cause of action being litigated.”). The due process requirements for general personal jurisdiction are more stringent than for specific personal jurisdiction. Consolidated Development Corp., 216 F.3d at 1292. On the other hand, specific jurisdiction “arises out of a party's activities in the forum that are related to the cause of action alleged in the complaint.” Id. at 1291; Helicopteros Nacionales De Colombia v. Hall, 466 U.S. 408, 414 at n.8, 80 L.Ed.2d 404 (1983). For specific personal jurisdiction, the contacts at issue must satisfy the minimum-contacts test. “Minimum contacts involve three criteria: First, the contacts must be related to the plaintiff's cause of action or have given rise to it. Second, the contacts must involve some purposeful availment of the privilege of conducting activities within the forum, thereby invoking the benefits and protections of its laws. Third, the defendant's contacts within the forum state must be such that [it] reasonably anticipate[s] being haled into court there.” Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 631 (11th Cir. 1996) (citation omitted).

(Doc. 60 at 12-14). Finally, in Seiferth v. Helicopteros Atuneros, Inc., the Fifth Circuit Court of Appeals held that personal jurisdiction is claim specific, but where there are “multiple claims that arise out of different forum contacts, [the party asserting jurisdiction] must establish specific jurisdiction for each claim.” 472 F.3d 266, 274 (5th Cir. 2006) (citing 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 3d § 1351, at 299 n.30 (2004) (“There is no such thing as supplemental specific personal jurisdiction; if separate claims are pled, specific personal jurisdiction must independently exist for each claim and the existence of personal jurisdiction for one claim will not provide the basis for another claim.”)).

         To the extent that Agundis's complaint alleges claims against Rice in his official capacity while he was employed by the City, the court finds there is insufficient contact within the State of Alabama for the Court to exercise personal jurisdiction over those claims. There is no allegation in Agundis's pleadings that while acting as a Columbus police officer Rice traveled to Alabama or interacted with her while she was in Alabama. To the contrary, the record demonstrates Rice left the Columbus Police Department in March 2013[5] and Agundis did not move to Alabama until December 2013. Accordingly, any claim premised on Rice's official capacity as a police officer with the City is due to be dismissed for lack of personal jurisdiction. This would include all the claims advanced by Agundis in the Second Amended Complaint.[6]

         To the extent that Agundis alleges claims against Rice in his official capacity while he was employed by the County, the only contact Rice purportedly had with Agundis after she moved to Alabama was occasional texts and personal interaction with Rice and Sykes in Birmingham on December 21, 2015. Accordingly, any claims alleging liability premised on Rice's conduct in an official capacity as an County deputy sheriff for events that occurred in Columbus, Mississippi are due to be dismissed for lack of personal jurisdiction. This would include the assault and battery claim (Count II); the trespass claim (Count III); the aggravated cruelty to animals claim (Count IV); the stalking claim (Count VII); the breaking and entering claim (Count VIII); the rape claim (Count IX); the sexual assault claim (Count X); and the invasion of privacy claim (Count XI). It would also include the intentional infliction of emotional distress (Count XII) and the outrage claims (Count XIII) to the extent they are premised on conduct occurring in Mississippi. Each of these claims involves actions in Mississippi before Agundis moved to Alabama. Specifically, the assault and battery is alleged to have occurred during July 2012 and October 2013 at Agundis's home; the trespass is alleged to have occurred from June 7, 2012, until December 2013 at her residence; the aggravated cruelty to animals is alleged to have occurred in September 2013; the stalking is alleged to have occurred in Columbus from July 2012 until December 2013; the breaking and entering is alleged to have occurred from July 2012 to December 2013 at Agundis's residence; the rape is alleged to have occurred on December 12, 2012; the sexual assault is alleged to have occurred July 2013; the invasion of privacy is alleged to have occurred while Rice was with the City; and the intentional infliction ...


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