Hawbecker v. Hall

Decision Date19 February 2015
Docket NumberCivil Action No. SA–14–CV–1010–XR.
Citation88 F.Supp.3d 723
PartiesPaul Eric HAWBECKER, Plaintiff, v. Michelle Marie HALL, Defendant.
CourtU.S. District Court — Western District of Texas

Nicolle H. Martin, Lakewood, CO, Rebecca R. Messall, Messall Law Firm, LLC, Englewood, CO, Stephen Casey, Casey Law Office, P.C., Round Rock, TX, for Plaintiff.

ORDER

XAVIER RODRIGUEZ, District Judge.

On this day the Court considered Defendant Michelle Marie Hall's Motion to Dismiss (Docket No. 12). After careful consideration, the Court denies the motion.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Paul Eric Hawbecker filed his original complaint on November 13, 2014, alleging that Michelle Marie Hall made a series of libelous and defamatory statements about him via the Internet. (Docket No. 1). The Complaint asserts that, sometime around April 2014, Hawbecker discovered that Hall had created a Facebook page and made numerous posts to that page indicating that Hawbecker sexually abused children, including Halls's daughter. Hawbecker also alleges that Hall contacted Hawbecker's friends, family members, and employer during 2014 via Facebook messages and e-mail in an effort to publicize her allegations. (Docket no. 1 at ¶ 6).

The Complaint alleges that Hall committed libel and defamation in violation of Texas Civil Practice & Remedies Code Section 73.001. Hawbecker, a resident of Texas, asserts that Hall, a resident of Colorado, caused him damages in the amount of $250,000 in Texas. Hawbecker properly invokes this Court's diversity jurisdiction. Id.

In response to the Complaint, Hall, representing herself pro se, filed a Motion to Dismiss under Rule 12(b) on January 5, 2015 with a header asserting “Lack of Jurisdiction, Improper Venue, Insufficient Service of Process, or Failure to State a Claim.” (Docket No. 12). Under this heading, the motion specifically moves for dismissal based on (1) lack of personal jurisdiction and (2) improper venue.

Hall failed to respond to the Complaint within 21 days as required by Fed.R.Civ.P. 12(a)(1)(A). As a result, Hawbecker filed a Request for Clerk's Entry of Default on January 6, 2015. (Docket No. 10). The Clerk entered default on January 7, 2015. (Docket No. 11).

Hawbecker filed a Response to the Motion to Dismiss on January 16, 2015. (Docket No. 15). He argued Hall's motion failed to state with particularity any reason for granting the motion under Fed.R.Civ.P. 7(b)(1)(B) and Local Rule CV–7(d)(1). Hawbecker alternatively argued the factual allegations in his Complaint demonstrate personal jurisdiction over Hall and proper venue.

II. ANALYSIS
A. Inadequacy of Proof of Service on Defendant Hall

At the outset, the Court notes that [a] document filed pro se is to be liberally construed” and “must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) ; see also Haase v. Countrywide Home Loans Inc., 748 F.3d 624, 629 (5th Cir.2014) ([W]e liberally construe briefs of pro se litigants and apply less stringent standards to parties proceeding pro se than parties represented by counsel.”) (quoting Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir.1995) ). Pro se litigants, however, must still adhere to the Federal Rules of Civil Procedure and make some legal argument. Id.

Hawbecker presented an Affidavit of Service to the Court per Fed.R.Civ.P. 4(l )(1). (Docket No. 9). Hawbecker's Request for Entry of Default asserts that Defendant Michelle Marie Hall was properly served. However, the process server swore that he “Individually/Personally served by delivering a true copy of the signed summons ... to: Michelle Marie Hawbecker. ” (Docket No. 9) (emphasis added).

In Texas, strict compliance with requirements for service is required to establish personal jurisdiction over the defendant in accordance with the long-arm statute. Primate Const., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex.1994). Because the name of the individual served does not match the name of the Defendant, the return of service is defective and is insufficient to support entry of default. See, e.g., Greystar, LLC v. Adams, 426 S.W.3d 861, 867–68 (Tex.App.-Dallas, 2014, no pet.). Under Fed.R.Civ.P. 55(c), [t]he court may set aside an entry of default for good cause.” Because the return of service cannot support entry of default, good cause exists to set it aside. Accordingly, the Clerk's Entry of Default (Docket No. 11) is VACATED.

It appears that the process server did serve Hall, but wrote the incorrect name on the proof of service. “Failure to prove service does not affect the validity of service.” Fed. R. Civ. P. 4(l )(3). If this is the case, the Court will allow Hawbecker to timely amend the proof of service to correct the error under Fed.R.Civ.P. 4(l )(3). However, if Hall has not been served, Hawbecker shall notify the Court and is reminded that service must be completed within 120 days of filing the Complaint.

B. Personal Jurisdiction
1. Personal Jurisdiction Standard

In order to establish personal jurisdiction in a diversity case over an out-of-state defendant, the plaintiff must present prima facie evidence that (1) the long-arm statute of the forum state creates personal jurisdiction over the defendant; and (2) the exercise of personal jurisdiction is consistent with the due process guarantees of the United States Constitution.” Clemens v. McNamee, 615 F.3d 374, 378 (5th Cir.2010). The Court must accept the uncontroverted allegations in the Complaint, affidavits, or other documentation as true. Id. (citing Revell v. Lidov, 317 F.3d 467, 469 (5th Cir.2002) ). “Because Texas's long-arm statute reaches to the constitutional limits,” it is only necessary to assess if the Court's exercise of personal jurisdiction offends due process. Id. (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413–14, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) ). Due process is satisfied when (1) the defendant has purposefully availed himself of the benefits and protections of the forum state by establishing minimum contacts with the forum state and (2) the exercise of jurisdiction over that defendant does not offend traditional notions of fair play and substantial justice.” Clemens, 615 F.3d at 378 (citing Revell, 317 F.3d at 470 ). Minimum contacts are found via specific jurisdiction “when the defendant's contacts with the forum arise from, or are directly related to, the cause of action.” Revell, 317 F.3d at 470 (internal quotations omitted).

The Internet presents a unique challenge to establishing personal jurisdiction over a non-resident defendant. The Fifth Circuit applies a “sliding scale” test described in Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (W.D.Pa.1997), to decide whether a defendant has sufficient minimum contacts with the forum state via the internet. Revell, 317 F.3d at 470 ; Mink v. AAAA Dev. LLC, 190 F.3d 333, 336 (5th Cir.1999).1 The test is rooted in the effects doctrine articulated in Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984), and essentially requires an examination of “the extent of the interactivity and nature of the forum contacts.” Revell, 317 F.3d at 470. “The Zippo decision categorized Internet use into a spectrum....” Mink, 190 F.3d at 336. At one end is a “passive” website that merely allows the owner to post information; [i]t will not be sufficient to establish personal jurisdiction.” Revell, 317 F.3d at 470. Personal jurisdiction will be proper in cases at the other end of the spectrum where the site “owners engage in repeated online contacts with forum residents over the internet.” Id. “In between are those sites allow [ing] for bilateral information exchange.” Id. The middle cases require an examination of the extent of the interactivity and nature of the forum contacts. Id.

2. Analysis: Minimum Contacts

Hawbecker's Response to the Motion (Docket No. 15) asserts Fed.R.Civ.P. 7(b) and Local Rule CV–7 are not satisfied by Hall's Motion. Rule 7(b) requires that the motion “state with particularity the grounds for seeking the order” and Local Rule CV–7 requires that [l]egal authorities supporting any motion must be cited in the motion.” Hall's Motion to Dismiss declares in a one-sentence statement that “the defendant is not subject to the personal jurisdiction of this court.” (Docket No. 12). No legal authority is cited or facts presented that would contradict Hawbecker's alleged facts in the Complaint. However, considering Hall's pro se status, and in the interest of equity, the Court will apply the alleged facts presented in the Complaint to Hall's lack of personal jurisdiction claim.

Application of the Zippo and Calder tests show that Hall has sufficient minimum contacts with Texas for this Court to possess specific jurisdiction over her.

Calder v. Jones is the Supreme Court's leading defamation personal jurisdiction case. 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984). There, the plaintiff sued a reporter and a tabloid magazine editor in California, seeking relief for an allegedly defamatory story that the defendants fabricated and published. Calder, 465 U.S. at 784–85, 104 S.Ct. 1482. The individual defendants were citizens of Florida. Id. at 785–86, 104 S.Ct. 1482. The Supreme Court held that the California court had personal jurisdiction over the nonresident defendants because “California [was] the focal point of both the story and of the harm suffered.” Id. at 789, 104 S.Ct. 1482. The Court explained that [t]he allegedly libelous story concerned the California activities of a California resident,” and [t]he article was drawn from California sources, and the brunt of the harm ... was suffered in California.” Id. at 788–89, 104 S.Ct. 1482. The Court further stated that the defendants “knew that the brunt of [the] injury would be felt by [the plaintiff] in the [forum] state.” Id. at 789–90, 104 S.Ct. 1482. The defendants had “expressly aimed”...

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