Stephens v. Coleman, Civ. A. No. 1:87-cv-1785A-HTW.

• Decision Date: 04 April 1989
• Docket Number: Civ. A. No. 1:87-cv-1785A-HTW.
• Parties: James N. STEPHENS, Plaintiff, v. Terry S. COLEMAN and Isabel P. Dunst, Defendants.
• Court: U.S. District Court — Northern District of Georgia

712 F. Supp. 1571

James N. STEPHENS, Plaintiff, v. Terry S. COLEMAN and Isabel P. Dunst, Defendants.

Civ. A. No. 1:87-cv-1785A-HTW.

United States District Court, N.D. Georgia, Atlanta Division.

April 4, 1989.

COPYRIGHT MATERIAL OMITTED

Beverly B. Bates, Atlanta, Ga., for plaintiff.

Sandra R. Ganus, Office of U.S. Atty., Atlanta, Ga., for defendants.

ORDER OF COURT

HORACE T. WARD, District Judge.

This matter is before the court on defendants' motion to dismiss, pursuant to Fed. R.Civ.P. 12(b)(2), 12(b)(5) and 12(b)(6) and plaintiff's motion for leave to amend complaint filed on January 24, 1989. Both motions are opposed.

Plaintiff brought this action pursuant to the Administrative Procedure Act, 5 U.S.C. § 701, et seq.; 5 U.S.C. § 2302(b)(2), (6); 5 U.S.C. §§ 3318 and 3320; the First and Fifth Amendments of the United States Constitution and various other statutes and rules. Basically, plaintiff asserts that he was deprived of an appointment as Regional Attorney by defendants Coleman's and Dunst's failure to follow appropriate selection procedures in violation of plaintiff's constitutional rights guaranteeing free speech under the First Amendment and due process and equal protection under the Fifth Amendment.

STATEMENT OF FACTS

The facts of this case are basically undisputed. Plaintiff was employed by the Department of Health and Human Services ("HHS") as an attorney. In 1985, plaintiff applied for the position of Regional Attorney (now changed to Chief Counsel). Plaintiff was advised that he was not accepted for the position on August 13, 1985 and subsequently filed several grievances contending that the agency and various individuals "failed to follow appropriate HHS and federal regulations, rules and policies" in making the selection. The Office of General Counsel rejected plaintiff's grievances and request for an investigation and hearing.

Subsequent to the decisions on plaintiff's grievances, plaintiff filed suit against the Secretary of HHS on August 26, 1986, alleging arbitrary and capricious action in violation of the Administrative Procedure Act, 5 U.S.C. § 701, et seq., and violation of his constitutional rights to procedural due process and equal protection (Civil Action File No. 1:86-CV-1875-HTW). The Secretary filed dispositive motions to dismiss the HHS complaint asserting that plaintiff's remedies under the Civil Service Reform Act of 1978 (CSRA), Pub.L. 95-454, 92 Stat. 1111, et seq., were exclusive. Plaintiff then filed the instant action seeking substantially the same relief against defendants Coleman and Dunst individually "only in the event relief is determined to be unavailable against defendant in C86-1875A."

Defendants contend that, regardless of plaintiff's entitlement to relief in Civil Action Number 86-CV-1875, plaintiff's constitutional claims against defendants Coleman and Dunst in the present case are barred by the doctrine of Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), which precludes creating a judicial remedy for claims arising out of federal employment relations. Defendants also contend that the court lacks personal jurisdiction over the defendants and that neither defendant was properly served, thereby entitling defendants to dismissal with prejudice pursuant to Fed.R.Civ.P. 12(b)(2), 12(b)(5) and 12(b)(6).

I. PERSONAL JURISDICTION

Defendants contend that this case should be dismissed because this court lacks jurisdiction over their person and state as bases that defendants have not properly been served and that defendants are non-residents and not subject to the personal jurisdiction of this court.

In plaintiff's response to defendant's motion to dismiss, he concedes that service of process was initially ineffective. Plaintiff states in his response that he has taken steps to perfect service under the Georgia Long Arm Statute, O.C.G.A. § 9-10-94 and that defendants' motion contesting service is or will be mooted.

Plaintiff cites 28 U.S.C. § 1391(e) either in an effort to show that this court has personal jurisdiction over defendants or to establish venue. However, this section is inapplicable to a determination of personal jurisdiction. Unless personal jurisdiction can be obtained over defendants, it serves no purpose to determine whether venue could be established. Moreover, defendants have not challenged venue in this case.

Before a federal court may exercise personal jurisdiction over a defendant, there must exist both a constitutionally sufficient relationship between the defendant and the forum, i.e. minimum contacts, and a basis for the defendant's amenability to service of summons. Omni Capital International Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, ___, 108 S.Ct. 404, 409, 98 L.Ed.2d 415 (1987); DeLong Equipment Company v. Washington Mills Abrasive Co., 840 F.2d 843, 847 (11th Cir.1988).

The plaintiff has the burden of proof to establish jurisdiction in this court. Morris v. SSE, Inc., 843 F.2d 489, 492 (11th Cir.1988); Brown v. Flowers Industries, Inc., 688 F.2d 328, 329 (5th Cir.1982) cert. denied, 460 U.S. 1023, 103 S.Ct. 1275, 75 L.Ed.2d 496 (1983). However, at this state in the proceedings when the motion is to be decided on affidavits and other evidentiary materials without a hearing, the plaintiff need only show a prima facie case. DeLong Equipment, 840 F.2d at 843. The court is obligated to deny the motion if the plaintiff alleges sufficient facts to support a reasonable inference that the defendant can be subjected to jurisdiction of this court. Jackam v. Hospital Corporation of America Mideast, Ltd., 800 F.2d 1577 (11th Cir.1986). Allegations which are not controverted by defendants' evidence must be accepted as true. DeLong Equipment, 840 F.2d at 843; Morris, 843 F.2d at 492. Conflicts in the facts are to be resolved in the plaintiff's favor for determining if a prima facie case exists. Morris, 843 F.2d at 492; DeLong, 840 F.2d at 843; Brown, 688 F.2d at 332. The court will first address the service of process issue, then the minimum contacts issue.

A. Service of Process

Fed.R.Civ.P. 4(e) prescribes how process can be served on an out-of-state defendant in a federal civil case. Under this rule, if a federal statute containing a service of process provision is applicable to the case, service on an out-of-state defendant is made according to its terms. Fed. R.Civ.P. 4(e). Absent such a provision, service is made under the circumstances and in the manner prescribed by the law of the state in which the district court sits. DeLong Equipment, 840 F.2d at 847; Fed.R. Civ.P. 4(e).

As plaintiff has not asserted any statute which allows service of process under the facts alleged in the complaint, service must be pursuant to the Long Arm Statute of the State of Georgia. Service of process is perfected under that statute in the same manner as upon residents of the state. O.C.G.A. §§ 9-10-91 and 9-10-94. Plaintiff apparently alleges that defendants committed a tort. Section 9-10-91 permits the exercise of jurisdiction over a non-resident defendant for commission of a tort if he or she:

(2) commits a tortious act or omission within this state, except as to a cause of action for defamation of character arising from the act;

(3) commits a tortious injury in this state caused by an act or omission outside this state if the tort-feasor 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 state;

. . . . .

O.C.G.A. § 9-10-91(2), (3). Plaintiff merely alleges in response to the motion to dismiss that defendant Dunst visited Georgia to interview him and that defendant Coleman made a telephone call to notify him that he did not receive the position for which he had applied. No further facts or details of activity or conduct are stated. Plaintiff has not shown or even alleged that defendants purposefully did some act with or in the forum, that the legal injury he received arises out of or results from defendants' purposeful activity and that with the existence of these two factors, the exercise of jurisdiction would be reasonable. See DeLong Equipment, 840 F.2d at 849; Schellenberger v. Tanner, 138 Ga. App. 399, 404-05, 227 S.E.2d 266 (1976).

As plaintiff has not alleged facts in his complaint or in subsequent pleadings sufficient to make a proper determination, the court is unable to find that service of process met with the statutory requirements. The statute indicates that service of process cannot properly be made until it can be shown that personal jurisdiction may be obtained pursuant to O.C.G.A. § 9-10-91. Accordingly, the court determines that plaintiff has not demonstrated that the first part of the jurisdictional requirement has been satisfied. Conducting an interview and making a telephone call alone are not sufficiently significant to satisfy the terms of the long arm statute and to simultaneously allow service of process.

The record indicates that the individual defendants were personally served on February 12, 1988. Although process may have been personally delivered to the individual defendants, there is no evidence that such process was properly served in light of the above discussion. The court finds that plaintiff has not presented a prima facie case that defendants' activities permit the assertion of jurisdiction under the Georgia long arm statute or that service of process was proper and, therefore, has not met his burden.

B. Minimum Contacts

As previously mentioned, the court has been unable to locate facts in the complaint which relate to personal jurisdiction. In paragraph four plaintiff alleges jurisdiction under the First and Fifth Amendment of the Constitution of the United States, 28 U.S.C. § 1331 giving the district court original jurisdiction over all civil actions arising under the laws and Constitution of the United States; and 28 U.S.C. § 1332 under diversity of...