Dring v. Sullivan

• Decision Date: 30 March 2006
• Docket Number: No. CIV.A. DKC 2005-2804.,CIV.A. DKC 2005-2804.
• Citation: 423 F.Supp.2d 540
• Parties: Stephen C. DRING v. William SULLIVAN
• Court: U.S. District Court — District of Maryland

423 F.Supp.2d 540

Stephen C. DRING v. William SULLIVAN

No. CIV.A. DKC 2005-2804.

United States District Court, D. Maryland.

March 30, 2006.

COPYRIGHT MATERIAL OMITTED

Glenn M. Cooper, Patricia M. Weaver, Paley Rothman Goldstein Rosenberg and Cooper Chtd., Bethesda, MD, for Stephen C. Dring.

Jay Schine Marks, Jonathan Lawrence Katz, Marks and Katz LLC, Silver Spring, MD, for William Sullivan.

MEMORANDUM OPINION

CHASANOW, District Judge.

Presently pending and ready for resolution in this defamation case are (1) the motion of Defendant William Sullivan to dismiss for lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2) and for failure to state a claim pursuant to Fed. R.Civ.P. 12(b)(6) (paper 7), and (2) the motion of Plaintiff Stephen C. Dring for leave to file surreply (paper 13). The issues have been briefed fully and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the court finds that it lacks personal jurisdiction over Defendant. Because Plaintiff has not addressed the issue of transfer, the court will defer entering an order to allow Plaintiff to move to transfer, if he wishes. In light of the foregoing, the court will not consider Defendant's motion to dismiss based on failure to state a claim. The court will deny Plaintiffs motion for leave to file surreply.

I. Background

Plaintiff, who filed a single count complaint alleging defamation, is a resident of Montgomery County, Maryland. Defendant is a resident of New Jersey.¹ Both Plaintiff and Defendant are certified International Referees for tae kwon do events, and both are involved in national and international tae kwon do competitions. Plaintiff alleges the following. On or about August 30, 2005, Defendant circulated an e-mail attacking Plaintiff and another International Referee ("IR"), Chuong Pham, through an Internet listsery for Taekwondo Referees United for Excellence ("TRUE").² The e-mail discusses an upcoming election to the Board of Governors ("Board") for USA Taekowndo ("USAT"). In the e-mail, Defendant urges support for the candidacy of John Holloway, and accuses two other candidates, Plaintiff and Mr. Pham, of being corrupt and unethical. All three of the candidates are from Maryland.

More specifically, Plaintiff alleges that the e-mail accuses Plaintiff of lying, cheating, and participating in bribery "and other corrupt and unethical practices in connection with his activities in the sport of Tae Kwon Do as a referee and otherwise." (Paper 1, ¶ 12.) For instance, Defendant alleges that Plaintiff used bribery to obtain his position as Executive Director of the Pan American Taekwondo Union ("PATU"), and accuses Plaintiff of being in a "pay-to-play scam in PATU." Id. at ¶ 14. Defendant also accused Plaintiff of accumulating fraudulent IR credits.

Plaintiff asserts that the statements are untrue and defamatory; Defendant intended to injure Plaintiff in his professional activities as a tae kwon do referee and official at the national and international level, as well as within the various tae kwon do governing bodies; and that his reputation was injured in Maryland. Plaintiff alleges that Defendant acted with actual malice knowing that the statements were false. As a result of the e-mail, Plaintiff's name was not included on a list of Board candidates. In addition, Plaintiff is concerned that, because of the e-mail, he may not be selected to officiate at the 2008 Beijing Olympic Games.

II. Standard of Review

When a court's power to exercise personal jurisdiction over a nonresident defendant is challenged by a motion under Fed.R.Civ.P. 12(b)(2), "the jurisdictional question is to be resolved by the judge, with the burden on the plaintiff ultimately to prove grounds for jurisdiction by a preponderance of the evidence." Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir.2003) (citing Mylan Labs., Inc. v. Akzo, NV., 2 F.3d 56, 59-60 (4th Cir.1993)). If the existence of jurisdiction turns on disputed facts, the court may resolve the challenge after a separate evidentiary hearing, or may defer ruling pending receipt at trial of evidence relevant to the jurisdictional question. Combs v. Bakker, 886 F.2d 673, 676 (4th Cir.1989). If the court chooses to rule without conducting an evidentiary hearing, relying solely on the basis of the complaint, affidavits, and discovery materials, "the plaintiff need only make a prima facie showing of personal jurisdiction." Carefirst, 334 F.3d at 396; see also Mylan, 2 F.3d at 60; Combs, 886 F.2d at 676. In determining whether the plaintiff has proven a prima facie case of personal jurisdiction, the court "must draw all reasonable inferences arising from the proof, and resolve all factual disputes, in the plaintiff's favor." Mylan, 2 F.3d at 60; Carefirst, 334 F.3d at 396.

III. Analysis

Defendant has moved to dismiss Plaintiff's complaint on the ground that his contact with Maryland—the August 30, 2005, e-mail message distributed via a listserv—is insufficient to subject him to personal jurisdiction. Plaintiff responds that specific jurisdiction over Defendant is proper because the brunt of the injury Plaintiff suffered was in Maryland, where Plaintiff is involved in tae kwon do activities, and because Defendant purposefully directed his e-mail statement to Maryland.³ Plaintiff does not address whether Defendant's contacts are sufficient to satisfy Maryland's long-arm statute.

The listsery has 69 members and is operated by TRUE.⁴ The listsery disseminates e-mails of interest to other referees and members of the tae kwon do community who subscribe. Plaintiff does not state exactly how many subscribers are in Maryland, although Plaintiff alleges that the e-mail reached at least three recipients in Maryland: Plaintiff, Mr. Pham, and Mr. Holloway. The e-mail appears to have reached other members of the Maryland tae kwon do community, including the Maryland State Tae Kwon Do Executive Committee and the Maryland State Vice-Chalrman of the Referee Committee, although it is unclear whether they learned of the e-mail as listsery members or from another source.

A federal district court may exercise personal jurisdiction over a nonresident defendant "if (1) an applicable state long-arm statute confers jurisdiction and (2) the assertion of that jurisdiction is consistent with constitutional due process." Nichols v. G.D. Searle & Co., 991 F.2d 1195, 1199 (4th Cir.1993). Many courts have concluded that Maryland's long-arm statute, Md.Code Ann., Cts. Jud. Proc. § 6-103, authorizes the exercise of personal jurisdiction to the limits permitted by the Due Process Clause of the Fourteenth Amendment. See ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 710 (4th Cir.2002), cert. denied, 537 U.S. 1105, 123 S.Ct. 868, 154 L.Ed.2d 773 (2003); Base Metal Trading, Ltd. v. OJSC "Novokuznetsky Aluminum Factory," 283 F.3d 208, 212-13 (4th Cir.2002).

In applying Maryland's long-arm statute, federal courts often state that "[the] statutory inquiry merges with [the] constitutional inquiry." Carefirst, 334 F.3d 390, 396-97 (citing Stover v. O'Connell Assocs., Inc., 84 F.3d 132, 135 (4th Cir.1996), cert denied, 519 U.S. 983, 117 S.Ct. 437, 136 L.Ed.2d 334 (1996)); see also ALS Scan, 293 F.3d at 710; Joseph M. Coleman & Assocs., Ltd. v. Colonial Metals, 887 F.Supp. 116, 119 n. 2 (D.Md.1995)(stating that the federal courts use the "merged into one" language). The Court of Appeals of Maryland recently included this "merged into one" language in Beyond Systems, Inc. v. Realtime Gaming Holding Co., LLC, 388 Md. 1, 2, 878 A.2d 567 (2005), in which the court stated: "Because we have consistently held that the reach of the long arm statute is coextensive with the limits of personal jurisdiction delineated under the due process clause of the Federal Constitution, our statutory inquiry merges with our constitutional examination."⁵ Courts that cite this "merged into one" language typically do not discuss the long-arm statute, and instead proceed directly to the constitutional analysis. See, e.g., Carefirst, 334 F.3d at 397; ALS Scan, 293 F.3d at 711; Realtime Gaming, 388 Md. at 22, 878 A.2d 567.

The Court of Appeals more recently clarified that analysis under the long-arm statute remains a requirement of the personal jurisdiction analysis. Mackey v. Compass Mktg, Inc., 391 Md. 117, 892 A.2d 479, 493 n. 6 (2006)(stating that in Realtime Gaming, "[w]e did not, of course, mean ... that it is now permissible to simply dispense with analysis under the long-arm statute"). Moreover, the Court of Appeals has recognized that there may be cases in which the facts satisfy constitutional due process but do not satisfy Maryland's long-arm statute. See Krashes v. White, 275 Md. 549, 559, 341 A.2d 798 (1975)("Perhaps fact situations will arise which will be deemed outside the scope of the Maryland `long arm' statute, although there may be a constitutional basis for jurisdiction over the nonresident defendant."). In Coleman & Associates, Chief Judge Motz offered the following insight about the intersection between the longarm statute and the constitutional inquiry:

In my view it does not follow from the principle that the General Assembly intended to "expand the exercise of personal jurisdiction to the limits of the due process clause" that the language of the long arm statute should be ignored; rather, a more correct understanding of the first principle is that to the extent that a defendant's activities are covered by the statutory language, the reach of the statute extends to the outermost boundaries of the due process clause.

887 F.Supp. at 118-19 n. 2.

It is appropriate, then, to begin with analysis of the long-arm statute. Maryland's statute provides in part:

(b) A court may exercise personal jurisdiction over a person, who directly or by an agent:

(1) Transacts any business or performs any character of work or service in the State;

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