Merriweather v. Createspace

• Decision Date: 26 February 2021
• Docket Number: Case No. 2:20-CV-119-MHT-KFP
• Parties: SHELTON MERRIWEATHER, Plaintiff, v. CREATESPACE, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

SHELTON MERRIWEATHER, Plaintiff, v. CREATESPACE, et al., Defendants.

Case No. 2:20-CV-119-MHT-KFP

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

February 26, 2021

RECOMMENDATION OF THE MAGISTRATE JUDGE

Plaintiff Shelton Merriweather claims that Defendants Amazon.com, Kindle Direct Publishing ("KDP"), and CreateSpace sold copies of his book without his permission, infringed his copyright, and violated unspecified state laws. Merriweather has also asserted one or more claims against Amazon's alleged customer service representative, Brandon Wrigley. Before the Court is Defendants' motion to dismiss the individual defendant and to compel arbitration. Doc. 24. Plaintiff was given several opportunities to show cause why the motion should not be granted (Docs. 26, 35, 41); however, Plaintiff failed to respond to the Court's last show cause order. For the reasons set forth below, the undersigned recommends that Defendants' motion be GRANTED.

I. BACKGROUND

Defendant KDP is a part of Amazon.com, Inc. Doc. 24-1, ¶ 1. Amazon has historically provided third-party publishers and authors a method to upload and sell electronic books through two separate services: CreateSpace and KDP. Id. at ¶ 2. In 2018, services CreateSpace and KDP merged. Id. Plaintiff's book, "Be Ye Perfect: The New Covenant From The Word of God," was published and sold through CreateSpace. See id. at ¶ 4; see also Docs. 1-3; 1-4.

Merriweather created a CreateSpace account in 2013. Doc. 24-1, ¶ 4. In order to establish that account, he first had to accept the CreateSpace Member Agreement ("CreateSpace Agreement"). Id. That step of the account set-up process applied to all publishers and authors, like Merriweather, who utilized the service and created an account. Id. After CreateSpace and KDP merged, all CreateSpace authors who had not yet migrated to the new platform, including Plaintiff, received an electronic notice that the KDP Terms and Conditions would replace the CreateSpace Agreement (together the "Agreement"). Id. at ¶ 6.

Both the CreateSpace Agreement and the KDP Terms include an arbitration clause stating that "[a]ny dispute or claim relating in any way to this [Agreement or KDP] will be resolved by binding arbitration, rather than in court[.]" Doc. 24-1, Ex. A § 15 (CreateSpace Agreement); Ex. B § 10.1 (KDP Terms). Both agreements also provide that, with applicable federal law, the laws of the State of Washington will govern the Agreement. Id., Ex. A § 15; Ex. B § 10.2.

II. DISCUSSION

A. The Court Lacks Personal Jurisdiction Over the Individual Defendant.

Plaintiff makes one specific allegation about Wrigley, Amazon's customer service representative: that he "hold[s] residen[ce]" in Seattle, Washington. Doc. 1 at 1. It appears Plaintiff also alleges that Wrigley "knowingly released to the Alabama Attorney General false and evasive information as to book sells [sic]"; however, he doesnot specifically identify Wrigley as the actor. Id. ¶ 7. Plaintiff attaches to his Complaint a letter from Wrigley to the Alabama Attorney General's office. Doc. 1-1. He does not, however, allege that the letter itself is somehow unlawful or harmed him. See generally Doc. 1.

"A plaintiff seeking the exercise of personal jurisdiction over a nonresident defendant bears the initial burden of alleging in the complaint sufficient facts to make out a prima facie case of jurisdiction." Diamond Crystal Brands, Inc. v. Food Movers Int'l, Inc., 593 F.3d 1249, 1257 (11th Cir. 2010) (quotation and citation omitted); see also Posner v. Essex Ins. Co., Ltd., 178 F.3d 1209, 1214 (11th Cir. 1999). When the nonresident defendant challenges jurisdiction and supports the challenge with evidence, the burden shifts back to the plaintiff to produce evidence in support of jurisdiction. Diamond Crystal, 593 F.3d at 1257. "Where the plaintiff's complaint and supporting evidence conflict with the defendant's affidavits, the court must construe all reasonable inferences in favor of the plaintiff." Id. (quotation and citation omitted).

Plaintiff's claims against Wrigley must be dismissed because this Court lacks personal jurisdiction over him.¹ "[A] federal court may assert jurisdiction over a nonresident defendant only to the extent permitted by the long-arm statute of the forum State, and only if the exercise of the jurisdiction comports with the requirements of the Due Process Clause of the Fourteenth Amendment." Vermeulen v. Renault U.S.A., Inc.,975 F.2d 746, 753 (11th Cir. 1992), op. modified and superseded on other grounds, 985 F.2d 1534 (11th Cir. 1993); Chambers v. Groome Transp. of Ala., Inc., 2014 WL 7151138, at *2 (M.D. Ala. Dec. 12, 2014) ("A personal-jurisdiction challenge in federal court requires a two-part analysis. The Court first must determine its jurisdiction under the forum state's long-arm statute; second, it must decide whether exercising jurisdiction comports with principles of constitutional due process."). "When the courts of the forum State have interpreted the forum's long-arm statute to confer jurisdiction to the limits allowed by federal due process, state law need not be applied: [the Court] need only ask whether the exercise of jurisdiction over the nonresident defendant comports with due process." Id. Alabama's long-arm statute is coextensive with the constitutional requirements of the Fourteenth Amendment. See, e.g., Mutual Serv. Ins. Co. v. Frit Indus., Inc., 358 F.3d 1312, 1319 (11th Cir. 2004) ("Alabama's long-arm statute authorizes Alabama courts to assert jurisdiction to the fullest extent constitutionally permissible."); Sloss Indus. Corp. v. Eurisol, 488 F.3d 922, 925 (11th Cir. 2007) (citing Ala. R. Civ. P. 4.2(b)) ("In this case, the two inquiries merge, because Alabama's long-arm statute permits the exercise of personal jurisdiction to the fullest extent constitutionally permissible."). Therefore, analysis of jurisdiction in this case is controlled by federal due process principles.

A plaintiff "bears the initial burden of alleging in the complaint sufficient facts to make out a prima facie case of jurisdiction." United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009). Here, Plaintiff does not allege that the Court has personal jurisdiction over Wrigley, and Defendant's submission makes clear he could not, asneither general nor specific jurisdiction exists.

Personal jurisdiction may be either "general or all-purpose jurisdiction, [or] specific or case-linked jurisdiction." Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011). "For an individual, the paradigm forum for the exercise of general jurisdiction is the individual's domicile[.]" Id. at 924; see also, e.g., Roche Diagnostics Corp. v. Priority Healthcare Corp., 407 F. Supp. 3d 1216, 1233 (N.D. Ala. 2019) ("General jurisdiction exists when the defendant is at home in the forum state—i.e., he is domiciled here."). Additionally,

[G]eneral personal jurisdiction derives from the defendant's contacts with the forum that are unrelated to the action being litigated. "The due process requirements for general personal jurisdiction are more stringent than for specific personal jurisdiction, and require a showing of continuous and systematic general business contacts between the defendant and the forum state."

Aeropower, Ltd. v. Matherly, 511 F. Supp. 2d 1139, 1154-55 (M.D. Ala. 2007) (quoting Consol. Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1291 (11th Cir. 2000)). Plaintiff alleges that Wrigley resides in Seattle, Washington. Doc. 1; Doc. 24-1 ¶ 3. He fails to allege any "continuous and systematic general business contacts" between Wrigley and the state of Alabama. Plaintiff has produced no evidence in response to the jurisdictional challenge to suggest otherwise. The Court, therefore, lacks general jurisdiction over Wrigley.

The Court also lacks specific jurisdiction over Wrigley. Specific jurisdiction "focuses on the relationship among the defendant, the forum, and the litigation." Walden v. Fiore, 571 U.S. 277, 283-84 (2014) (citation and internal quotation marks omitted).Exercise of specific jurisdiction requires that "the defendant's suit-related conduct . . . create a substantial connection with the forum State." Id. at 284. The "proper question is not where the plaintiff experienced a particular injury or effect but whether the defendant's conduct connects him to the forum in a meaningful way." Id. at 290. To evaluate specific jurisdiction, this Court applies a three-part test, examining:

(1) whether the plaintiff's claims "arise out of or relate to" at least one of the defendant's contacts with the forum; (2) whether the nonresident defendant "purposefully availed" himself of the privilege of conducting activities within the forum state, thus invoking the benefit of the forum state's laws; and (3) whether the exercise of personal jurisdiction comports with "traditional notions of fair play and substantial justice."

Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1355 (11th Cir. 2013) (citations omitted). The plaintiff bears the burden of establishing the first two prongs; if he does, the burden shifts to the defendant to establish the third. Id.

Plaintiff's Complaint fails to assert a jurisdictional connection under the first prong. To do so, Defendant's forum-related conduct must be, at a minimum, a "'but-for' cause of the tort." Waite v. All Acquisition Corp., 901 F.3d 1307, 1314 (11th Cir. 2018), cert. denied, 139 S. Ct. 1384 (2019); see also Fraser v. Smith, 594 F.3d 842, 851 (11th Cir. 2010) (explaining that but-for causation is required but not necessarily sufficient). On the record before the Court, Wrigley had a single contact with the forum: he sent a letter to the Alabama Attorney General. Doc. 1 ¶ 7; Doc. 1-1. Critically, however, Plaintiff's claims do not arise from the letter to Alabama's Attorney General.Although Plaintiff's precise causes of action are unclear,² the thrust of Plaintiff's Complaint relates...