Smith v. Husband, CIV.A. 4:04CV101.

Citation376 F.Supp.2d 603
Decision Date07 July 2005
Docket NumberNo. CIV.A. 4:04CV101.,CIV.A. 4:04CV101.
PartiesVictoria SMITH, Plaintiff, v. Jimmy R. HUSBAND, Defendant.
CourtU.S. District Court — Eastern District of Virginia

Richard E. Garriott, Jr., Esquire, Clarke, Dolph, Rapaport, Hardy & Hull, P.L.C., Norfolk, VA, Counsel for Plaintiff.

James Cales, Jr., Esquire, Furniss, Davis, Rashkind & Saunders, P.C., Norfolk, VA, Counsel for Defendant.

MEMORANDUM OPINION AND ORDER

JACKSON, District Judge.

This matter is before the Court on Defendant, Jimmy R. Husband's Motion to Dismiss for lack of subject matter jurisdiction, lack of personal jurisdiction, and violation of the statute of limitations. For the reasons stated below, Defendant's Motion to Dismiss is DENIED.

I. FACTUAL AND PROCEDURAL HISTORY

Plaintiff brings suit pursuant to Title 18, United States Code, Section 2255 for personal injuries she suffered as a result of Defendant, Jimmy Husband's actions. Plaintiff alleges that Husband was convicted of sexual exploitation, in violation of 18 U.S.C. §§ 2251(a) and (d), and 2256(1) and (2). Defendant pleaded guilty to eight counts of sexual exploitation of a minor on April 7, 2003. On several occasions in the summer of 1995 and the spring of 1996, Defendant persuaded Plaintiff to engage in sexually explicit conduct, and did so for the purpose of producing a videotape of such conduct. Defendant was sentenced to eighty-seven months as to each count, all to be served consecutively for a total of 696 months, to be followed by three years of supervised release. Plaintiff now invokes the accompanying civil remedy for these criminal violations, stating that she has sustained and continues to sustain physical and mental damages, humiliation, and embarrassment as a result of Defendant's criminal acts.

Plaintiff first brought suit on December 9, 2003 anonymously alleging the same violations as alleged here. The Defendant moved to dismiss on several grounds including lack of personal and subject matter jurisdiction. On August 10, 2004, this Court granted Defendant's Motion to Dismiss based on Plaintiff's failure to obtain authorization to proceed anonymously. The Court did find that jurisdiction over Defendant was proper, however.

Plaintiff's instant complaint was filed on August 18, 2004. The Defendant filed a motion to dismiss on March 22, 2005 on the bases that Plaintiff's claims are barred by the statute of limitations, that the Court lacks personal jurisdiction over him, and that the Court lacks subject matter jurisdiction on the basis of a faulty criminal indictment. The Court held a hearing on the Motion to Dismiss on May 5, 2005. The Defendant was represented by a guardian ad litem.

II. LEGAL STANDARDS
A. Subject Matter Jurisdiction

Federal Rule of Civil Procedure 12(b)(1) provides for the dismissal of actions on the basis of lack of subject matter jurisdiction. A motion to dismiss for lack of subject matter jurisdiction may attack the complaint on its face or the truth of the underlying jurisdictional allegations contained in the complaint. The nonmovant has the burden to allege and prove such jurisdiction. Lane v. David P. Jacobson & Co., Ltd., 880 F.Supp. 1091, 1094 (E.D.Va.1995) (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982)). "A court asked to dismiss for lack of jurisdiction may resolve factual disputes to determine the proper disposition of the motion." Thigpen v. United States, 800 F.2d 393, 396 (4th Cir.1986).

B. Personal Jurisdiction

The Plaintiff has the burden of establishing personal jurisdiction by a preponderance of the evidence. Combs v. Bakker, 886 F.2d 673 (4th Cir.1989). A two-prong test governs an analysis of in personam jurisdiction. The first prong requires that the activity of the defendant fall within the reach of Virginia's long arm statute. The second prong requires that the defendant have minimum contacts with the state so that the exercise of jurisdiction does not offend basic notions of due process. Wolf v. Richmond County Hosp. Auth., 745 F.2d 904, 909 (4th Cir.1984), cert. denied, 474 U.S. 826, 106 S.Ct. 83, 88 L.Ed.2d 68 (1985).

III. DISCUSSION
A. Subject Matter Jurisdiction

The Defendant first alleges that the Court lacks subject matter jurisdiction. Plaintiff sues invoking a federal statute, 18 U.S.C. § 2255, that specifically authorizes a civil suit for the victim of any of several statutes prohibiting child molestation, exploitation, and pornography. Accordingly, the Court has subject matter jurisdiction based upon the existence of a federal question. Defendant argues, however, that fatal flaws in his criminal indictment violate his rights under the Fifth Amendment and the Federal Rules of Criminal Procedure. He contends that he was denied the right to a grand jury proceeding, and that the indictment does not state all of the essential elements of the offense charged. Yet, even assuming the indictment and criminal conviction were invalid, Plaintiff can maintain a case based solely on the facts of the abuse. As discussed below, the criminal conviction is not necessary for Defendant to face civil liability for the underlying acts. See discussion infra Part III.C.1. The validity of Defendant's criminal conviction is therefore irrelevant to the question of whether the Court has subject matter jurisdiction. In addition, Defendant also fails to provide any specifics regarding his claim that the guilty plea or indictment were invalid. Defendant's motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure is DENIED.

B. Personal Jurisdiction

The Defendant argues that the Court lacks personal jurisdiction because he is not a resident of the Commonwealth, and all of the alleged acts took place in New York. The Plaintiff argues that Defendant did maintain a permanent residence in Virginia for some of the relevant time period, that he was arrested on state charges related to this offense in Virginia, and that Defendant possessed and the police confiscated the illicit videotape in Virginia. Plaintiff also argues that some of the acts of exploitation did occur in Virginia, though not the specific acts for which Defendant was convicted criminally. The Defendant raised this same motion on Plaintiff's claim brought anonymously in 2003. At that time, the Court determined that jurisdiction over Defendant was proper because he committed a tortious act within the Commonwealth. See Doe v. Husband, No. 03cv166, slip op. at 10 (E.D.Va. August 10, 2004). At the hearing, the parties provided more details regarding both Plaintiff's and Defendant's former residence within the Commonwealth that further support the Court's decision in the former case.

The Virginia long arm statute allows the Court to exercise specific jurisdiction over a cause of action arising from a defendant's "[c]ausing tortious injury by an act or omission in this Commonwealth; [c]ausing tortious injury in this Commonwealth by an act or omission outside this Commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this Commonwealth." Va.Code § 2.01-328.1 (2000). More generally, if a defendant transacts any business, or has an interest in, uses, or possesses real property in the Commonwealth, a Virginia court can exercise personal jurisdiction over such defendant. Va.Code § 2.01-328.1. Virginia courts consistently hold that the Virginia long-arm statute, Virginia Code § 8.01-328.1, extends personal jurisdiction to the limits of due process. Peanut Corp. of Am. v. Hollywood Brands, Inc., 696 F.2d 311, 313 (4th Cir.1982); Danville Plywood Corp. v. Plain & Fancy Kitchens, Inc., 218 Va. 533, 238 S.E.2d 800 (1977); John G. Kolbe, Inc. v. Chromodern Chair Co., 211 Va. 736, 180 S.E.2d 664, 667 (1971). Thus, there exists only one issue to be determined; that is, whether Defendant's activities in Virginia are such that in personam jurisdiction may be exercised without violating due process. See, e.g., Federal Ins. Co. v. Lake Shore, Inc., 886 F.2d 654, 657 n. 2 (4th Cir.1989); Superfos Invs. Ltd. v. FirstMiss, 774 F.Supp. 393, 397 (E.D.Va.1991).

The due process clause of the United States Constitution requires that a defendant have "minimum contacts" with the forum state such that "the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Minimum contacts exist when the "defendant's conduct and connection with the forum state are such that he should reasonably anticipate being haled into court here." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). In order for a court's jurisdiction to be proper, "it is essential ... that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Danville Plywood, 238 S.E.2d at 802 (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)).

The United States Supreme Court ("Supreme Court") has developed a distinction between specific jurisdiction and general jurisdiction. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). If the contacts with the forum are rare or limited but directly related to the cause of action, then the court's specific jurisdiction can be used to subject a defendant to suit in that court. Id. If a nonresident engages in some purposeful activity in the forum state, even a single act may constitute sufficient contact for a court to exercise personal jurisdiction. Darden v. Heck's, Inc., 459 F.Supp. 956 (W.D.Va.1978). On the other hand, if defendant's activities within the forum state are...

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