Seidel v. Kirby

• Decision Date: 27 October 2017
• Docket Number: CIVIL NO. JKB–17–0292
• Citation: 296 F.Supp.3d 745
• Parties: Nicole Muench SEIDEL, et al., Plaintiffs v. Bobbie M. KIRBY, et al., Defendants
• Court: U.S. District Court — District of Maryland

296 F.Supp.3d 745

Nicole Muench SEIDEL, et al., Plaintiffs

v.Bobbie M. KIRBY, et al., Defendants

CIVIL NO. JKB–17–0292

United States District Court, D. Maryland.

Signed October 27, 2017

Brian M. Maul, The Law Office of Brian M. Maul, LLC, Frederick, MD, for Plaintiffs.

Lee Bryan Rauch, Freeman Rauch, LLC, Towson, MD, for Defendants.

James K. Bredar, Chief Judge

MEMORANDUM

Plaintiffs are Maryland residents who have brought this action against five out-of-state Defendants in response to alleged abusive behavior that Defendants engaged in online. Defendants moved to dismiss Plaintiffs' complaint for failure to state a claim (ECF No. 7) and in response Plaintiffs amended their complaint (ECF No. 8). The Defendants now bring a second motion to dismiss, this time for lack of personal jurisdiction, improper venue, or, in the alternative, dismissal under the doctrine of forum non conveniens (ECF No. 13). Plaintiffs have responded in opposition to that motion and have moved to strike Defendants' motion to dismiss and, in the alternative, have moved for jurisdictional discovery (ECF No. 16). All parties have had the opportunity to respond, the issues are fully briefed, and there is no need to have a hearing to resolve the matter. See Local Rule 105.6 (D. Md. 2016). Defendants' motion to dismiss will be denied because Defendants waived their objection to personal jurisdiction, see Fed. R. Civ. P. 12(h), venue is proper under 28 U.S.C. § 1391(b)(2), and forum non conveniens generally only applies when "the alternative forum is abroad," American Dredging Co. v. Miller , 510 U.S. 443, 449 n.2, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994) ; see also Charles A. Wright & Arthur R. Miller, 14D Fed. Prac. & Proc. Juris. § 3828 (4th ed. 2017) (doctrine applies only when superior forum is in foreign country, or in rare circumstances in a state court or territorial court). For these reasons, Defendants' motion to dismiss will be denied by accompanying order. Plaintiffs' request for jurisdictional discovery is moot, and Plaintiffs' motion to strike will be denied.

I. Factual and Procedural Background¹

Plaintiffs filed their first complaint on February 1, 2017 (Compl., ECF No. 1). This complaint was largely devoid of substance. Essentially, it alleged "upon information and belief" that Defendants were residents of various states and had "published and/or republished" defamatory statements about the Plaintiffs online. (Id. ) Plaintiffs, after some delay, effected service of this complaint on Defendants on May 9. On receipt of this original complaint, Defendants would have had notice of at least two facts: (1) Plaintiffs alleged that they had defamed them in some way and invaded the Plaintiffs' privacy in some way, and (2) Plaintiffs brought this lawsuit in Maryland.

On June 1, Defendants moved to dismiss under Rule 12(b)(6), contending that Plaintiffs' threadbare and conclusory complaint failed to state a claim upon which relief could be granted. (Defs.' Mot. Dismiss Mem. Supp., ECF No. 7–1.) In response, Plaintiffs amended their complaint to include more specifics, such that it now provided more than vague and conclusory allegations. (First Am. Compl.) Briefly, Plaintiffs' grievance arises from defamatory and harassing behavior that the Defendants engaged in online in connection with a fan fiction forum and competition, targeted towards the Plaintiffs. (See id. Exs. A–E, ECF Nos. 8–1 through 8–6.) Plaintiffs did not allege that any Defendants engaged in any actions while in or from Maryland, but that the effects of the Defendants' actions were felt by the Plaintiffs in Maryland. (See First Am. Compl. ¶ 18.)

After receiving notice of the particulars of Plaintiffs' complaint against them, Defendants again moved to dismiss (ECF No. 13), this time on the grounds that the Court lacked personal jurisdiction, and that venue in Maryland would be improper, or that the case should be dismissed under the doctrine of forum non conveniens.

Plaintiffs replied in opposition to Defendants' second motion to dismiss, and also moved the Court to strike Defendants' objections to personal jurisdiction and venue (ECF No. 16).

II. Applicable Legal Standards

A motion to dismiss under Rule 12(b)(2) is a test of the Court's personal jurisdiction over the defendant. "[W]hen, as here, the court addresses the question [of personal jurisdiction] on the basis only of motion papers, supporting legal memoranda and the relevant allegations of a complaint, the burden on the plaintiff is simply to make a prima facie showing of a sufficient jurisdictional basis to survive the jurisdictional challenge." New Wellington Fin. Corp. v. Flagship Resort Dev. Corp. , 416 F.3d 290, 294 (4th Cir. 2005) (quoting Combs v. Bakker , 886 F.2d 673, 676 (4th Cir. 1989) ).

A motion to dismiss under Rule 12(b)(3)"requires a similar inquiry to that of Rule 12(b)(2)." Trimgen Corp. v. Iverson Genetic Diagnostics, Inc. , Civ. No. RDB-14-2850, 2015 WL 2165118 *2 (D. Md. May 7, 2015). The burden of establishing proper venue is on the plaintiff, id. , and "all inferences must be drawn in favor of the plaintiff." Silo Point II LLC v. Suffolk Const. Co., Inc. , 578 F.Supp.2d 807, 809 (D. Md. 2008) (quoting Sun Dun, Inc. of Washington v. Coca–Cola Co. , 740 F.Supp. 381, 385 (D. Md. 1990) ). Objections to personal jurisdiction and venue can be waived if they were available to the defendant and not raised in the defendant's first motion to dismiss under Rule 12(b). See Fed. R. Civ. P. 12(h).

Rule 12(f) permits a court to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." The Fourth Circuit has stated that Rule 12(f) motions are "generally viewed with disfavor." Waste Mgmt. Holdings, Inc. v. Gilmore , 252 F.3d 316, 347 (4th Cir. 2001). Plaintiffs styled their initial response to Defendants' second motion to dismiss as a motion to strike as well as simply a response in opposition to the Defendants' second motion. While the Court will consider Plaintiffs' contention that Defendants waived their right to challenge personal jurisdiction and venue as part of their general argument in opposition to Defendants' second motion to dismiss, because motions to strike are disfavored and the Plaintiffs have not pointed the Court in the direction of any redundant, immaterial, impertinent, or scandalous material in Defendants' motion, Plaintiffs' motion to strike will be denied.

III. Analysis

The Court will first consider Defendants' objection to personal jurisdiction, then venue, and finally Defendants' request that the case be dismissed under forum non conveniens.

a. Personal Jurisdiction

The crux of the question of personal jurisdiction here is not the substance of Defendants' personal jurisdiction challenge, but whether the Defendants have waived their right to make such a challenge. Plaintiffs contend that by failing to raise this challenge in their first motion to dismiss under Rule 12(b)(6), Defendants consented to personal jurisdiction in Maryland. Defendants contend that because Plaintiffs amended their complaint, Defendants' prior motion to dismiss under Rule 12(b)(6) is moot and has no bearing on whether Defendants waived any defenses. Defendants are half right, but Plaintiffs are completely right, and because the Defendants consented to personal jurisdiction, the Court has jurisdiction over the Defendants.

Rule 12(g) provides that "a party that makes a motion under [ Rule 12 ] must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion." Rule 12(h) further clarifies that a "party waives any defense listed in Rule 12(b)(2)–(5) [including defenses of lack of personal jurisdiction and improper venue] by ... omitting it from a motion in the circumstances described in Rule 12(g)." Rule 12(h) thus provides a "strict waiver policy" that gives way to one limited exception: defendants do not waive an objection if that objection was not available to them when they first brought a motion under Rule 12(b). Lanehart v. Devine , 102 F.R.D. 592, 594 (D. Md. 1984). The dispositive question, then, is whether the defense of lack of personal jurisdiction was "available" to Defendants when they first filed a motion to dismiss under Rule 12(b)(6).

Defendants argue that the Plaintiffs' amended complaint renders their previous motion to dismiss moot, and they are correct. See Young v. City of Mount Ranier , 238 F.3d 567, 573 (4th Cir. 2001). "[A]n amended pleading ordinarily supersedes the original and renders it of no legal effect." Id. at 572 (quoting Crysen/Montenay Energy Co. v. Shell Oil Co. , 226 F.3d 160, 162 (2d Cir. 2000) ). The original pleading in this case therefore has no legal effect, but it may have some factual effect. This is because regardless of how many times a complaint is amended, the standard of Rule 12(g) is the same. If a defense was "available" to Defendants when they brought an earlier motion to dismiss, they have waived that defense. See Rowley v. McMillan , 502 F.2d 1326, 1333 (4th Cir. 1974) ("An unasserted defense available at the time of response to an initial pleading may not be asserted when the initial pleading is amended." (emphasis added)). The amendment of a complaint may permit a defendant to present a second (or third, or fourth…) defense under Rule 12(b) that the defendant had not previously raised, but if it did it would not be because the complaint was amended. It would be because there were new facts or legal claims in the new complaint that made a previously unavailable defense available. All that matters is what the Defendants knew and when. Or, put into the language of Rule 12, when Defendants filed their first motion under Rule 12(b), did they know enough about this case such that an objection to personal jurisdiction was "available" to them?

The Defendants are correct that the original complaint was so devoid of concrete allegations that it would be...