Zimmerman v. Great Am. Ins. Co.

• Decision Date: 27 June 2022
• Docket Number: 7:21-CY-108-D
• Parties: ROBERT ZIMMERMAN, Plaintiff, v. GREAT AMERICAN INSURANCE GROUP, et al., Defendants.
• Court: U.S. District Court — Eastern District of North Carolina

ROBERT ZIMMERMAN, Plaintiff, v. GREAT AMERICAN INSURANCE GROUP, et al., Defendants.

No. 7:21-CY-108-D

United States District Court, E.D. North Carolina, Southern Division

June 27, 2022

ORDER

JAMES C. DEVER III UNITED STATES DISTRICT JUDGE

On June 15,2021, Robert Zimmerman (“Zimmerman” or ‘‘plaintiff'), proceeding pro se, moved for leave to proceed in forma pauperis [D.E. 1] and filed, a proposed complaint [D.E. 1-2]. On July 7,2021, Zimmerman filed a proposed amended complaint [D.E. 4]. On August 17,2021, the court denied the motion without prejudice because it was incomplete and set a deadline for z Zimmerman to either particularize his motion or tender the filing fee [D.E. 5]. On September 7, 2021, the court granted Zimmerman's particularized application to proceed in forma pauperis and filed the amended complaint. See [D.E 6-8].

All defendants move to dismiss the complaint [D.E. 31, 36, 41 53]. The court notified Zimmerman about the motions to dismiss and the consequences of failing to respond [D.E 38,39, 43,55]. See Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (per curiam). Zimmerman has responded in opposition to defendants' motions [D.E 65,66,67,69]. Zimmerman moves for entry of default against several defendants [D.E. 48], and those defendants responded in opposition [D.E. 60,61,62]. Several defendants and Zimmerman have moved for sanctions [D.E. 36,41,53,70,74, 76], As explained below, the court grants in part the motions to dismiss, dismisses the action, and denies the remaining motions.

I.

Zimmerman owns and resides in a townhome in Pender County, North Carolina, in a residential development called Olde Point Villas (“OPV”). Am. Compl. [D.E. 8] ¶ 3. The OPV homeowners' association (“HOA”) “governs the 38 OPV townhomes,” and defendant Ostmann is the HOA president. Id. ¶¶ 10-12. Defendant Parker “is the registered agent for defendant HOA, and the president and sole owner of defendant Atlantic Shores Management, LLC,” (“ASM”). Id. ¶ 8. The HOA hired as counsel defendant Waters, “an attorney/partner employed by defendant Jordan Price.” Id. ¶ 6; see Id. ¶¶ 120-21. The “HOA contracted with defendant [Great American Insurance Company^[1] to insure plaintiff's townhome against storm damage,” and defendant Salafia “is a senior claims specialist for defendant [Great American].” Id. ¶¶ 2,141-42.

In September 2018, Hurricane Florence significantly damaged OPV, including Zimmerman's home. Id. ¶¶ 18-19, 46. “Plaintiff's property was insured by defendant... [Great American]'s $7,000,000.00 insurance policy for approximately $200,000.00. Immediately after Hurricane Florence, a damage report prepared by a professional damage calculation company estimated the damages to plaintiff's property from Hurricane Florence at approximately $70,000.00.” Id. ¶ 27. Defendant Danco Builders, Inc. (“Danco”) “was the primary contractor, hired to repair the damages inflicted by Hurricane Florence on the” OPV townhomes. Id. ¶ 4; cf, Id. ¶ 76. Defendant Coggins “is possibly an owner, or sole owner, of defendant Danco.” Id. ¶ 5.

“On information and belief, defendants HOA, Parker, Ostmann, ASM and OPV bad zero experience managing the remediation of damage caused [by] a large hurricane or any other disaster, yet they took it upon themselves to manage the remediation of 38 townhomes with moderate to extensive damage from Hurricane Florence without seeking expert large scale remediation project management experience or seeking expert assistance in dealing with defendant [Great American].” Id. ¶ 65. “While attempting to manage the 2+ year remediation of the 38 OPV townhomes that with zero disaster recovery experience, defendants Parker and ASM were also singlehandedly managing approximately 300 other homes and taking vacations.” Id. ¶ 62. “Danco estimated the remediation project would take approximately six months. In fact, it took over two years and is still incomplete.” Id. ¶ 66; see Id. ¶ 153. At some point, unspecified litigation resulted in a “$3,000,000.00 mediation settlement between defendant [Great American] and defendants Danco, Coggins, and... OPV.” Id. ¶ 40; see Id. ¶¶ 34 (describing legal fee paid to Waters and Jordan Price for the mediation), 149. Numerous disputes arose between Zimmerman and various defendants concerning the project, including disputes regarding HOA special assessments, liens against his townhome, threats of condemnation and foreclosure, and “important reasonable questions plaintiff has previously and repeatedly asked.”^[2] Id. ¶¶ 21-23,26,50-51,57-58,78-116,145-49.

In January2021, Zimmerman filed a lawsuit in Pender County Superior Court against Danco, Coggins, Waters and Jordan Price, Parker, the HOA, ASM, and “John and Jane Does,” asserting numerous claims, including breach of contract, wrongful interference with contract, breach of the implied covenant of good faith and fair dealing, negligence and gross negligence, fraud and fraud in the inducement, constructive fraud, unfair and deceptive trade practices, breach of duty, breach of fiduciary duty, conversion, negligent misrepresentation, invasion of privacy, private nuisance, civil conspiracy, unjust enrichment, attorney malpractice, and “Civil RICO.” See [D.E. 37] 16-50; [D.E. 42-1, 54-1] (copies of the first complaint). In this action, several of Zimmerman's claims replicate or substantially replicate several claims he asserted in his Pender County suit. All defendants moved to dismiss the action in Pender County Superior Court, and on May 20,2021, the state court dismissed with prejudice all claims and defendants, except Zimmerman's claim for unjust enrichment against defendants ASM and OPV, which the court dismissed without prejudice. See [D.E. 37] 61; [D.E. 42-2,54-2] (copies of the state court orders). Zimmerman appealed, but on September 20,2021, he withdrew the appeal. See [D.E. 37] 81; [D.E. 54-3] (copies of the notice of appeal and withdrawal).

On June 15,2021, Zimmerman commenced this action. On July 12,2021, Zimmerman filed a second complaint in Pender County Superior Court naming all of the defendants to the instant action. On September 13,2021, Zimmerman voluntarily dismissed that complaint. See [D.E. 37] 86-131,139-41; [D.E. 42-3,42-4, 54-4, 54-6] (copies of the second complaint and the notice of voluntary dismissal).

II.

Salafia moves to dismiss under Rule 12(b)(2), arguing the court lacks personal jurisdiction over her. See [D.E. 32] 3,9. Zimmerman alleges that Salafia is a citizen of Connecticut. See Am. Compl. ¶ 2. The court does not have personal jurisdiction over a nonresident defendant unless jurisdiction comports with North Carolina's long-arm statute and the Fourteenth Amendment's Due Process Clause. See, e.g. Mitrano v. Hawes, 377 F.3d 402,406 (4th Cir. 2004). North Carolina's long-arm statute extends personal jurisdiction over nonresident defendants consistent with the Fourteenth Amendment's Due Process Clause. See Christian Sci. Bd. of Dirs, v. Nolan. 259 F.3d 209,215 (4th Cir. 2001). Thus, the statutory inquiry merges with the constitutional inquiry. See id.

Due process requires a defendant to have “certain minimum contacts with the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Helicopteros Nacionales de Colom., SA., v. Hall, 466 U.S. 408, 414 (1984) (alteration and quotations omitted). The minimum contacts analysis focuses on whether a defendant “purposefully directed his activities at residents of the forum” and whether the causes of action arise out of or relate to those activities. Burger King Corp. v. Rudzewicz, 471 U.S. 462,472 (1985) (quotation omitted); see Ford Motor Co. v. Mont. Eighth Jud, Dist. Ct„ 141 S.Ct. 1017,1024-25 (2021). The analysis ensures that a defendant is not haled into a jurisdiction's court “solely as a result of random, fortuitous, or attenuated contacts.” Burger King, 471 U.S. at 475 (quotations omitted); see Ford, Motor Co., 141 S.Ct. at 1025. The analysis “focuses on the relationship among the defendant, the forum, and the litigation.” Walden v. Fiore, 571 U.S. 277,284 (2014) (quotation omitted); see Ford Motor Co., 141 S.Ct. at 1024-25; Bristol-Myers Squibb Co. v. Superior Ct., 137 S.Ct. 1773,1781 (2017).

The extent of the contacts needed for jurisdiction turns on whether the claims asserted against a defendant relate to or arise out of the defendant's contacts with the forum state. See Ford Motor Co., 141 S.Ct. at 1025; Bristol-Myers Squibb, 137 S.Ct. at 1781; ALS Scan, Inc, v. Digit. Serv. Consultants, Inc., 293 F.3d 707,712 (4th Cir. 2002); Atl. Corp, of Wilmington, Inc, v. TBG Tech Co., 565 F.Supp.3d 748,760 (E.D. N.C. 2021). If the defendant's contacts with the state are the basis for the suit, specific jurisdiction may exist. ALS Scan, 293 F.3d at 712. In determining specific jurisdiction, the court considers: “(1) the extent to which the defendant purposefully availed itself of the privilege of conducting activities in the State; (2) whether the plaintiffs' claims arise out of those activities directed at the State; and (3) whether the exercise of personal jurisdiction would be constitutionally reasonable.” Id. (alteration and quotations omitted); see Sneha Media & Ent, LLC v. Assoc. Broad. Co. P Ltd., 911 F.3d 192,' 198 (4th Cir. 2018); Atl. Corp., 565 F.Supp.3d at 760. Thus, the “constitutional touchstone” of specific personal jurisdiction “remains whether the defendant purposefully established minimum contacts in the forum State.” Burger King Corp., 471 U.S. at474 (quotation omitted); see Bristol-Myers Squibb, 137 S.Ct. at 1781-82; Walden, 571 U.S. at284-91.^[3]

First in analyzing the extent to which a defendant purposefully availed itself of the privilege of conducting activities within a state,...