Atkinson v. McLaughlin

• Decision Date: 04 November 2004
• Docket Number: No. A1-03-091.,A1-03-091.
• Citation: 343 F.Supp.2d 868
• Parties: Patrick ATKINSON, an individual, and The God's Child Project, a North Dakota nonprofit organization, Plaintiffs, v. James McLAUGHLIN, an individual, and Roberta McLaughlin, Defendants.
• Court: U.S. District Court — District of North Dakota

Page 868

343 F.Supp.2d 868

Patrick ATKINSON, an individual, and The God's Child Project, a North Dakota nonprofit organization, Plaintiffs, v. James McLAUGHLIN, an individual, and Roberta McLaughlin, Defendants.

No. A1-03-091.

United States District Court, D. North Dakota, Southwestern Division.

November 4, 2004.

Orell D. Schmitz, Schmitz Moench and Schmidt, Bismarck, ND, for Plaintiffs.

ORDER DENYING DEFENDANTS' MOTION TO DISMISS

HOVLAND, Chief Judge.

Before the Court is the Defendants' Motion to Dismiss filed on August 16, 2004. The Plaintiffs filed a response opposing the motion on September 24, 2004. The Plaintiffs also requested oral argument. For the reasons outlined below, the motion is denied.

I. BACKGROUND

The God's Child Project is a North Dakota nonprofit corporation with its headquarters located in Bismarck, North Dakota. The God's Child Project has an organized volunteer network that "provides health care, medical care, housing, food and education to ... children, adolescents, and young adults, and provides educational and health services for ... poor persons in nine departments across Guatemala." Complaint, ¶ 2. The plaintiff, Patrick Atkinson ("Atkinson"), is a resident of North Dakota who founded the God's Child Project in 1991 and serves as the executive director.

From July of 1997 to March of 1998, the defendants, James McLaughlin and Roberta McLaughlin ("McLaughlins"), volunteered for the God's Child Project in Guatemala through a Guatemalan-registered charity entitled Association Nuestros Ahijados which was also founded by Atkinson. In March of 1998, the McLaughlins were suspended and ultimately dismissed from their volunteer positions.¹ After their dismissal, the McLaughlins compiled a list of allegations against Atkinson and, with the help of third-party surrogates, filed them with various Guatemalan authorities.

The McLaughlins returned to the United States after March of 1998. In late November of 1998, the McLaughlins created a Web site entitled "Friends of Guatemalan Children" at the domain name www .guatemalanchildren.org. The Web site allegedly contains "both specific false statements about Atkinson and God's Child as well as innuendo, insinuations and unrelated inferences to and about various individuals that have been accused and, in some cases, convicted, of criminal and other wrongful conduct." Complaint, ¶ 24. Atkinson contends the McLaughlins have used the Web site to conduct a "smear" campaign. The smear campaign included telephone calls made to God's Child Project benefactors, regional ecclesiastical authorities, and political authorities discouraging them from supporting the God's Child Project. Complaint, ¶ 26.

On July 28, 2003, Atkinson filed an action with this Court seeking "preliminary and permanent injunctive relief to enjoin defendants' continued defamation of Plaintiffs, including through the Web site, defendants' tortious interference with Plaintiffs' business, and for damages caused by defendants' wrongful acts." Complaint, ¶ 6.

II. LEGAL DISCUSSION

The McLaughlins have filed a Motion to Dismiss for lack of personal jurisdiction, failure to prosecute and for ineffective service of process. The Court will address each in turn.

A. PERSONAL JURISDICTION

The initial inquiry is whether the Court has personal jurisdiction over the McLaughlins. The Motion to Dismiss was filed pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure for lack of jurisdiction over the party. "To defeat a motion to dismiss for lack of personal jurisdiction, the nonmoving party need only make a prima facie showing of jurisdiction." Epps v. Stewart Information Services Corp., 327 F.3d 642, 647 (8th Cir.2003) (citing Falkirk Min. Co. v. Japan Steel Works, Ltd., 906 F.2d 369, 373 (8th Cir.1990); Watlow Elec. Mfg. v. Patch Rubber Co., 838 F.2d 999, 1000 (8th Cir.1988)). "The plaintiff's prima facie showing must be tested, not by the pleadings alone, but by the affidavits and exhibits presented with the motions and in opposition thereto." Dever v. Hentzen Coatings, Inc., 380 F.3d 1070, 1072 (8th Cir.2004). The party seeking to establish the court's in personam jurisdiction carries the burden of proof, and the burden does not shift to the party challenging jurisdiction. Epps, 327 F.3d 642, 647 (citations omitted).

As a preliminary matter, it should be noted that this action is in federal court based on diversity jurisdiction. See 28 U.S.C. § 1332(a). Under Rule 4(k)(1)(A) of the Federal Rules of Civil Procedure, a federal district court in a diversity action will have personal jurisdiction to the same extent as a state court of the state in which that federal district court sits. Dean v. Olibas, 129 F.3d 1001, 1003 (8th Cir.1997). Therefore, when this Court sits in diversity, the analysis for personal jurisdiction involves two steps: (1) the court must determine whether the State of North Dakota would accept jurisdiction under the facts of this case; and (2) the court must determine whether the exercise of jurisdiction comports with constitutional due process restrictions. Lakin v. Prudential Securities, Inc., 348 F.3d 704, 706-707 (8th Cir.2003) (citing Sondergard v. Miles, Inc., 985 F.2d 1389, 1392 (8th Cir.1993)). To satisfy the first step of the jurisdictional analysis, the Court will address the relevant North Dakota provisions governing personal jurisdiction over non-resident defendants.

The jurisdiction of North Dakota courts is governed by the North Dakota long-arm statute set forth in Rule 4(b)(2) of the North Dakota Rules of Civil Procedure. The North Dakota Supreme Court has held that Rule 4(b)(2) "authorizes North Dakota courts to exercise jurisdiction over nonresident defendants to the fullest extent permitted by due process...." Hansen v. Scott, 645 N.W.2d 223, 230 (N.D.2002) (citing Auction Effertz, Ltd. v. Schecher, 611 N.W.2d 173 (N.D.2000); Hust v. Northern Log, Inc., 297 N.W.2d 429, 431 (N.D.1980)). The Eighth Circuit has held that when a state construes its long-arm statute to grant jurisdiction to the fullest extent permitted by the Constitution, the two-step test collapses into a single question of whether the exercise of personal jurisdiction comports with due process. Oriental Trading Co., Inc. v. Firetti, 236 F.3d 938, 943 (8th Cir.2001); Bell Paper Box, Inc. v. U.S. Kids, Inc., 22 F.3d 816, 818 (8th Cir.1994); see Hansen v. Scott, 645 N.W.2d 223, 232 (N.D.2002) (recognizing that a federal court sitting in diversity may collapse the two step framework under North Dakota law).

"Due process requires minimum contacts between [a] non-resident defendant and the forum state such that maintenance of the suit does not offend traditional notions of fair play and substantial justice." Dever v. Hentzen Coatings, Inc., 380 F.3d 1070, 1073 (8th Cir.2004) (citing Burlington Indus., Inc. v. Maples Indus., Inc., 97 F.3d 1100, 1102 (8th Cir.1996); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291-92, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)). There are two categories of minimum contacts with a state that may subject a defendant to jurisdiction in that forum, i.e., general and specific. With respect to general jurisdiction over a defendant, "a court may hear a lawsuit against a defendant who has `continuous and systematic' contacts with the forum state, even if the injuries at issue in the lawsuit did not arise out of the defendant's activities directed at the forum." Dever, 380 F.3d 1070, 1073 (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415-16, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)). A state has specific jurisdiction over a defendant when the suit arises out of, or is related to, the defendant's contacts with the forum state.

Both categories of minimum contacts require some act by which the defendant purposely avails himself or herself of the privilege of conducting activities within the forum state, and thus invokes the benefits and protections of its laws. If a court determines that a defendant has minimum contacts with the forum state, the court must then consider "`whether the assertion of personal jurisdiction would comport with fair play and substantial justice.'" Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)).

The Eighth Circuit has established a five-part test for measuring minimum contacts for purposes of asserting personal jurisdiction over a defendant: (1) the nature and quality of [a defendant's] contacts with a forum state; (2) the quantity of such contacts; (3) the relation of the cause of action to the contacts; (4) the interest of the forum state in providing a forum for its residents; and (5)[the] convenience of the parties. Dever, 380 F.3d 1070, 1073-74 (citing Burlington Indus., Inc. v. Maples Indus., Inc., 97 F.3d 1100, 1102 (8th Cir.1996)). In determining whether a defendant has sufficient contacts with the forum state to exercise personal jurisdiction, the court must consider all of the contacts in the aggregate and examine the totality of the circumstances. Northrup King Co. v. Compania Productora Semillas Algodoneras, S.A., 51 F.3d 1383, 1388 (8th Cir.1995). The Eighth Circuit affords "significant weight" to the first three factors.

It is undisputed the McLaughlins have never visited North Dakota, do not conduct business in North Dakota, have no offices in North Dakota, have no personal or real property in North Dakota, and maintain no bank accounts in North Dakota. The Court has reviewed the pleadings in a light most favorable to the non-moving party and finds the McLaughlins fall short of the type of the minimum contacts needed to support the conclusion they have had "continuous and systematic" contact with North Dakota so as to invoke general jurisdiction. As such, the only remaining question is whether the Court can exercise specific jurisdiction over the McLaughlins based on their Internet communications.

As previously noted, specific...