Coleman v. Coleman

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

RICHARD COLEMAN, )
)
Plaintiff, )
)
v. ) Civ. Action No. 13-0133 (ESH)
)
KAY SILVER aka KAY S. COLEMAN, )
)
Defendant. )
____________________________________)

MEMORANDUM OPINION

In this action brought pro se under the Court’s diversity jurisdiction, plaintiff sues his ex-

wife for “Defamation of Character, Slander, Libel, and Alienation of Affection.” (Am. Compl.

[Dkt. # 5] at 1.) Defendant, a resident of Garner, North Carolina, moves to dismiss the amended

complaint pursuant to Federal Rules of Civil Procedure 12(b)(2) for lack of personal jurisdiction

and Rule 12(b)(6) on statute of limitations grounds. (Def.’s Mot. to Dismiss the Am. Compl.

[Dkt. # 7].) Plaintiff moves to strike defendant’s motion to dismiss pursuant to Rule 12(f), which

the Court will deny but will consider the supporting arguments as his opposition to defendant’s

motion to dismiss.1 (Pl.’s Mot. to Strike [Dkt. # 9], hereafter “Pl.’s Opp’n”.) Since plaintiff has

1
On March 5, 2013, the Court directed plaintiff to respond to defendant’s motion to dismiss by
April 5, 2013, and advised him about the possible consequences if he did not respond. Order
[Dkt. # 8]. Plaintiff filed the Motion to Strike on April 1, 2013, asserting that defendant’s
grounds for dismissal are “wrongly argue[d]” and essentially disagreeing with her defenses.
Rule 12(f) authorizes the court to “strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f) (emphasis
added). A motion to dismiss is not a “pleading.” See Fed. R. Civ. P. 7(a) (listing pleadings as a
complaint and an answer). In any event, plaintiff’s nebulous arguments do not support striking
defendant’s motion in whole or in part.
not shown how this Court can exercise jurisdiction over defendant, the motion to dismiss under

Rule 12(b)(2) will be granted and the case will be dismissed.

BACKGROUND

In a seven-count complaint sparse on concrete facts, plaintiff alleges that over the course

of 28 years, defendant has falsely accused him of various abhorrent acts, including sexually

molesting his now-32-year-old daughter when she “was 2-3 years old,” attempting to kill her and

their two daughters, and stalking the children of “a previous friend” who testified against

plaintiff at a custody hearing. (Am. Compl. [Dkt. # 5] at 2-5.) In each count of the complaint,

plaintiff alleges that each statement was made “[t]o non-privileged third parties,” that defendant

made the statement knowing it to be false, and that defendant made the statement to “alienate the

affection of [his]daughter . . . in turn causing the Plaintiff to mourn for his ‘lost’ daughter for the

next 28 years.” (See id.) Plaintiff seeks “an award of [$]25,000 on each count, times 28 years . .

. .” (Id. at 5.)

ANALYSIS

Under Federal Rule of Civil Procedure 12(b)(2), a plaintiff bears the burden of

establishing a factual basis for personal jurisdiction over the defendants. Rossmann v. Chase

Home Finance, LLC, 772 F. Supp. 2d 169, 171 (D.D.C. 2011) (citing Crane v. N.Y. Zoological

Society, 894 F.2d 454, 456 (D.C. Cir. 1990)). The Court need not treat all of the plaintiff's

allegations as true when determining whether personal jurisdiction exists over the defendant.

Instead, the Court “may receive and weigh affidavits and any other relevant matter to assist it in

determining the jurisdictional facts.” United States v. Philip Morris, Inc., 116 F. Supp. 2d 116,

120 n.4 (D.D.C. 2000) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and

2
Procedure § 1351 (1990)). Any factual discrepancies with regard to the existence of personal

jurisdiction should be resolved in plaintiff’s favor. See Crane, 894 F.2d at 456.

The D.C. Court of Appeals has set forth a two-part inquiry for establishing personal

jurisdiction over a nonresident defendant. Rossmann, 772 F. Supp. 2d at 171. First, a court must

“examine whether jurisdiction is applicable under the state's long-arm statute,” and second,

“determine whether a finding of jurisdiction satisfies the constitutional requirements of due

process.” Id. (quoting GTE New Media Servs. v. BellSouth Corp., 199 F.3d 1343, 1347 (D.C.

Cir. 2000)). The applicable long-arm statute states in relevant part:

(a) A District of Columbia court may exercise personal jurisdiction
over a person, who acts directly or by an agent, as to a claim for relief
arising from the person's—
(1) transacting any business in the District of Columbia;
(2) contracting to supply services in the District of Columbia;
(3) causing tortious injury in the District of Columbia by an act or
omission in the District of Columbia;
(4) causing tortious injury in the District of Columbia by an act or
omission outside the District of Columbia if he regularly does or solicits
business, engages in any other persistent course of conduct, or derives
substantial revenue from goods used or consumed, or services rendered, in
the District of Columbia[.]

D.C. Code § 13–423(a). Section 13-423 makes clear that, where jurisdiction is predicated solely

upon the long-arm statute, “only a claim for relief arising from acts enumerated in this section

may be asserted against him.” D. C. Code § 13-423(b).

Plaintiff has not alleged any facts establishing personal jurisdiction under the long-arm

statute.2 In his opposition, plaintiff dismisses defendant’s personal jurisdiction argument as “all

2
In the Amended Complaint, plaintiff states “[h]aving established a prima facie case for
“Diversity of Citizenship,” and for personal jurisdiction, the US District Court of the District of
Columbia, has jurisdiction in this matter.” Am. Compl. at 2. This statement mistakenly
conflates two distinct jurisdictional doctrines. Compare 28 U.S.C. § 1332 (conferring original
jurisdiction in the district court over diversity actions seeking damages exceeding $75,000), with
Fed. R. Civ. P. 4 (k) (“Serving a summons . . . establishes personal jurisdiction over a defendant:

3
sound and fury signifying nothing . . . .” and seems to assert, wrongly, that the Court has

personal jurisdiction over the defendant because plaintiff “reside[d] in DC at time suit was filed.”

(Pl.’s Opp’n ¶¶ 5, 6.) Plaintiff has not disputed defendant’s detailed affidavit establishing her

“sole contact” with the District of Columbia “as a tourist and sightseer” one afternoon

“approximately 22 years ago.” (Aff. of Kay Silver [Dkt. # 7-1] ¶ 13.) Defendant states that

during her visit to the District, she “did not stay overnight . . . visit anyone who lived in the

District of Columbia,” or conduct any business in the District. (Id.) Defendant confirms that

none of the events forming the basis of the complaint could have occurred in, or has any

connection to, the District of Columbia since she lived in North Carolina during the relevant time

period and obtained both a divorce decree and a judgment terminating plaintiff’s parental rights

in North Carolina courts. Id. ¶ 16. “As plaintiff has failed to establish a valid statutory basis for

personal jurisdiction, the Court need not address whether a finding of jurisdiction satisfies the

constitutional requirements of due process.” Rossman, 772 F. Supp. 2d at 173 n.7.

CONCLUSION

For the foregoing reasons, the Court will grant defendant’s motion to dismiss for lack of

personal jurisdiction and will deny plaintiff’s motion to strike. A separate Order accompanies

this Memorandum Opinion.

___________/s/___________
ELLEN SEGAL HUVELLE
DATE: April 17, 2013 United States District Judge

(A) who is subject to the jurisdiction of a court of general jurisdiction in the state where the
district court is located.”).