Nelson v. Tozzi et al (MAG+)
ORDERED that Dfts' 4 Motion to Dismiss pursuant to FRCP 12(b)(2) is GRANTED, and this case is dismissed without prejudice for lack of personal jurisdiction over Dfts. Signed by Honorable Judge Mark E. Fuller on 3/24/2014. (Attachments: # 1 Civil Appeals Checklist)(wcl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
DOUGLAS TOZZI, et al.,
CASE NO. 2:13-cv-0147-MEF-TFM
(WO - Do Not Publish)
Before the court is Defendants Douglas Tozzi (“Tozzi”), Rainey Shane (“Shane”), and
Janet McCurry’s (“McCurry”) (collectively, “Defendants”) Motion to Dismiss (Doc. #4) the
complaint pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. Plaintiff Ruth
Nelson (“Plaintiff”) has filed a response in opposition to the motion. (Doc. #13.) For the
following reasons, the Court finds that the motion is due to be GRANTED.
Plaintiff filed her complaint on March 7, 2013. (Doc. #1.) According to the
complaint, Plaintiff is a resident of the State of Alabama. She summarizes her complaint as
Plaintiff resides in this jurisdiction and as the defendant in the case, which
stems from a case brought wrongfully in another jurisdiction, plaintiff seeks
relief for violations of federal statutes which this court has jurisdiction over as
well as correction of the original case that has caused this case and the removal
of that case to this jurisdiction. This case is in the State Courts of Georgia,
while the plaintiff has resided in the State of Alabama since prior to the case
being filed wrongly in the courts of Georgia. This case is now in the Georgia
Supreme Court . . . . Plaintiff has been continually harassed, hardshipped and
threatened with seizure of property, as well as had her contracting business
destroyed by a fraudulent claim against her and continuing legal proceedings
by an unscrupulous attorney who has wrongly filed documents, knowingly
without taking proper procedures to allow due process of law. This case ought
to have been filed in this jurisdiction originally by the defendants, should they
have had a case. They had no rights to any claim due to the subrogation of
rights and payments through a bank loan to which the contractor was also
subrogated and insured the bank against any claim. The case was illegally
brought. This case also involves criminal activity by the defendants.
(Doc. # 1.)
As best the Court can tell, the dispute described in the complaint concerns
enforcement of a construction contract that Plaintiff entered into as a builder in 2004. The
contract called for Plaintiff to construct a house on a parcel of land in Fulton County,
Georgia. Defendants Shane and McCurry were the contracting homeowners. Plaintiff
alleges that Shane and McCurry wanted her to deviate from the contract and “to violate her
contract with the bank/construction loan requirement[,]” which she refused to do. (Doc. #1.)
Shane and McCurry retained Defendant Tozzi to pursue legal remedies against Plaintiff.
Tozzi filed suit in the state courts of Georgia and, as described in the complaint, effected
notice of suit on Plaintiff by publication. Defendants obtained a default judgment against
Plaintiff in 2007. At some point, Defendants’ efforts to enforce the default judgment caused
Plaintiff to file an appeal in the Court of Appeals of Georgia. Plaintiff’s appeal was
dismissed on September 18, 2012. Her subsequent motion to reconsider was dismissed as
untimely on January 7, 2013. She then filed a petition for certiorari review in the Georgia
Supreme Court, which was pending at the time she filed the instant federal complaint.1
The complaint is mostly vague and conclusory about the causes of action alleged
against Defendants. Without citing to specific statutes, Plaintiff appears to assert the
following claims against Defendants: “Violation of Anti-Slavery laws, Lack of Due Process
of Law, Lack of Jurisdiction and deliberate wrongdoing by officers of the law and unfair
court system for Pro Se Litigants.” (Doc. #1.)
Defendants filed their motion to dismiss (Doc. # 4) on April 4, 2013. They argue that
dismissal is warranted pursuant to Fed. R. Civ. P. 12(b)(1) because the court lacks subject
matter jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(2) because the court lacks personal
jurisdiction over Defendants, and pursuant to Fed. R. Civ. P. 12(b)(6) because Plaintiff has
failed to state a claim upon which relief could be granted. Plaintiff filed a response (Doc. #
13) to the motion on May 28, 2013.
II. STANDARD OF REVIEW
Because the court finds that Plaintiff has failed to establish a prima facie case of
personal jurisdiction over the non-resident Defendants, the court will address Defendants’
argument pursuant to Rule 12(b)(2) only. In considering a motion to dismiss for lack of
personal jurisdiction pursuant to Rule 12(b)(2), the district court accepts as true the
allegations of the complaint. See Stubbs v. Wyndham Nassau Resort and Crystal Palace
The Supreme Court of Georgia’s website’s publicly accessible docket files indicate that
the petition for certiorari review in Nelson v. Shane, et al., case no. S13C0768, was denied on June
3, 2013. Available at http://www.gasupreme.us/docket_search/results_one_record.php?case
Number=S13C0768 (last visited on March 17, 2014).
Casino, 447 F.3d 1357, 1360 (11th Cir. 2006). Plaintiff has the initial burden of alleging in
her complaint sufficient facts to establish a prima facie case of personal jurisdiction.
Diamond Crystal Brands, Inc. v. Food Movers Int’l, Inc., 593 F.3d 1249, 1257 (11th Cir.
2010). “‘A prima facie case is established if the plaintiff presents enough evidence to
withstand a motion for directed verdict.’” Stubbs, 447 F.3d at 1360 (quoting Meier ex rel.
Meier v. Sun Int’l Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002)). If plaintiff presents
a prima facie case of personal jurisdiction, defendants may present evidence, via affidavit
or otherwise, to contradict plaintiff’s jurisdictional allegations. In that instance, “the burden
shifts back to the plaintiff to produce evidence supporting personal jurisdiction[.]” Id.
As an initial matter, the Court finds that Plaintiff has failed to properly allege the basis
for this Court’s jurisdiction. She appears to assert both federal question jurisdiction (Doc.
#1, “This court has jurisdiction of this case, which involves questions of the United States
Constitution.”), and diversity jurisdiction (Doc. #1, “This case is in excess of $75,000 and
involves litigants who are residents of more than one state.”). In any event, whether
jurisdiction is premised on federal question or diversity, the Court must be able to exercise
personal jurisdiction over Defendants consistent with the principles of due process and, given
Plaintiff’s charge that she is a citizen of Alabama and Defendants are not, Alabama’s longarm statute.
The Eleventh Circuit has described the Court’s inquiry on questions of personal
jurisdiction in Alabama as follows:
Personal jurisdiction generally entails a two-step inquiry. First, we determine
whether the exercise of jurisdiction is appropriate under the forum state’s
long-arm statute. See Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 626
(11th Cir. 1996). Second, we examine whether exercising jurisdiction over the
defendant would violate the Due Process Clause of the Fourteenth
Amendment, which requires that the defendant have minimum contacts with
the forum state and that the exercise of jurisdiction not offend “traditional
notions of fair play and substantial justice.” Id. (quoting Int'l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945)). 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. See Ala. R. Civ.
P. 4.2(b); Sieber v. Campbell, 810 So.2d 641, 644 (Ala. 2001).
Sloss Industries Corp. v. Eurisol, 488 F.3d 922, 925 (11th Cir. 2007). Thus, the Court must
first determine whether Plaintiff has sufficiently alleged a prima facie case that Defendants
may be subject to personal jurisdiction in this Court consistent with the principles of due
At its core, due process requires that, in order to subject a non-resident to personal
it is essential in each case 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. This
purposeful availment requirement ensures that a defendant will not be haled
into a jurisdiction solely as a result of random, fortuitous, or attenuated
contacts, or of the unilateral activity of another party or a third person.
Accordingly, [e]ach defendant’s contacts with the forum State must be
assessed individually, and [t]he unilateral activity of those who claim some
relationship with a nonresident defendant cannot satisfy the requirement of
contact with the forum State.
Avocent Huntsville Corp. v. Aten Intern. Co., Ltd., 552 F.3d 1324, 1329 (11th Cir. 2008)
(internal citations and quotation marks omitted).
The nature of the non-resident Defendants’ “contacts” with Alabama, then, are
essential in resolving the personal jurisdiction inquiry. There are two theories under which
a court might exercise personal jurisdiction over non-resident defendants. “Specific
jurisdiction arises out of a party’s activities in the forum that are related to the cause of action
alleged in the complaint.” Consolidated Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1291
(11th Cir. 2000). In order for a court to exercise specific personal jurisdiction, the nonresident defendant must have “‘purposefully avail[ed] itself of the privilege of conducting
activities within the forum State, thus invoking the benefits and protections of its laws.’” Id.
(quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)). “General personal jurisdiction, on
the other hand, arises from a defendant’s contacts with the forum that are unrelated to the
cause of 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.” Id. at 1292.
Defendants contend that they are not subject to personal jurisdiction in this Court.
They argue as follows:
Plaintiff has failed to plead or prove the citizenship of the Defendants as
required for diversity jurisdiction. Plaintiff has also failed to allege that
Defendants have had any contact with the State of Alabama or have ever
visited this State. Moreover, all work and contacts incidental to the underlying
state court judgment occurred in Georgia. Consequently, jurisdiction over the
Defendants would offend traditional notions of fair play and substantial justice
and Plaintiff’s Complaint is due to be dismissed for lack of personal
(Doc. # 4.)
Defendants are correct. Even under the less stringent test for specific jurisdiction,
Plaintiff’s allegations fail to state even a prima facie case of personal jurisdiction over the
non-resident Defendants, and she has not presented enough evidence to survive a directed
verdict on the issue.
The minimum-contacts test for specific jurisdiction has three elements. First,
the defendant must have contacts related to or giving rise to the plaintiff’s
cause of action. Second, the defendant must, through those contacts, have
purposefully availed itself of forum benefits. Third, the defendant’s contacts
with the forum must be such that it could reasonably anticipate being haled
into court there.
Fraser v. Smith, 594 F.3d 842, 850 (11th Cir. 2010). Plaintiff does not allege that
Defendants conducted any activities in Alabama or otherwise have established contacts in
Alabama related to or giving rise to Plaintiff’s cause of action. She does not allege that
Defendants have purposefully availed themselves of any of the protections of Alabama law
in relation to any cause of action she alleges in the complaint.2 Nor is there any allegation
in the complaint establishing that Defendants might reasonably anticipate being haled into
court in Alabama.
At one point in the complaint Plaintiff alleges that Defendants have “applied for an alias
FIFA seeking to seize property from the plaintiff[,]” which they sent “to her home address in
Alabama.” (Doc. # 1.) Assuming that Plaintiff is referring to a writ of fieri facias, by which a lien
has been levied against some personal or real property of hers, the complaint does not allege that
Defendants procured the writ in Alabama, or that they have otherwise availed themselves of the
protections of Alabama law in seeking the writ. Indeed, Plaintiff’s response to the motion to dismiss
indicates that the “FIFA” was obtained in the State Courts of Georgia while her case was “under
appeal,” which she interprets as “evidence of injustice in spite of the lack of due process of law” in
Georgia’s courts. (Doc. # 13.) As such, the complaint still fails to allege that Defendants have
purposely availed themselves of any forum benefits or protections, and the mere act of mailing a
document to Plaintiff in Alabama, assuming the “FIFA” was mailed by Defendants, does not suffice
as a minimum contact for purposes of finding jurisdiction.
At bottom, the complaint makes clear that this case involves homeowners who
contracted in Georgia for the construction of a home in Georgia, a contractor who agreed to
build the home in Georgia, an attorney practicing in Georgia who represented the
homeowners in a state court legal proceeding against the contractor in Georgia, and
plaintiff’s aggrievement with the legal procedures and rules of the State Courts of Georgia.
Plaintiff’s only apparent predicate for asserting jurisdiction in the courts of Alabama appears
to be her allegation that she now resides in Alabama. See Compl. (Doc. # 1) at 3 (“Plaintiff
seeks that this case be heard entirely, de novo in the circuit court of the Middle District of
Alabama where plaintiff resides and which should have had jurisdiction of this case from the
outset.”). However, even assuming the veracity of this minimal allegation, Plaintiff has not
established a prima facie case of personal jurisdiction over Defendants given her failure to
wholly allege any minimum contacts between Defendants and Alabama.
The most the complaint can be construed as having alleged about Defendants’
activities directed at Alabama is that they prosecuted a legal case in the state courts of
Georgia while plaintiff resided in Alabama.3 However, it appears indisputable that, all of
Plaintiff does not even allege that she resided in Alabama at the time she contracted with
Shane and McCurry. Documents she attached to her complaint, including the contract itself, indicate
that at the time of the contract she used a local Georgia address as her business address. Moreover,
presumably as proof of her current residency, Plaintiff attached a copy of a lease agreement for an
Alabama residence which she began leasing on February 1, 2006, more than a year after she entered
the contract with Shane and McCurry. However, even if Plaintiff had alleged that Defendants
contracted with her while she resided in Alabama, such an allegation would still be insufficient to
subject Defendants to personal jurisdiction in this court. See Burger King Corp. v. Rudzewicz, 471
U.S. 462, 478 (1985) (finding that “an individual’s contract with an out-of-state party alone” does
not “automatically establish sufficient minimum contacts in the other party’s home forum”);
Plaintiff’s hyperbole about fraud, slavery, and criminal conduct notwithstanding, the state
court suit prosecuted by Defendants in Georgia was predicated on principles of state contract
law and concerned the actions of the parties committed in Georgia. In any event, Plaintiff
cannot establish jurisdiction in the forum State through her own unilateral action by, for
instance, moving to Alabama at some point during the course of her dispute with Defendants.
See Ruiz de Molina v. Merritt & Furman Ins. Agency, Inc., 207 F.3d 1351, 1356 (11th
Cir.2000) (citing Hanson, 357 U.S. at 253) (“Furthermore, it is important to remember that
the conduct at issue is that of the defendants. No plaintiff can establish jurisdiction over a
defendant through his own actions.”).
There simply are no allegations in the complaint indicating any of the kinds of actions
by the Defendants in Alabama which have been recognized as sufficient to state a prima facie
case of personal jurisdiction. See, e.g., United Technologies Corp. v. Mazer, 556 F.3d 1260,
1276 (11th Cir. 2009) (finding complaint’s allegations that agent of corporate defendant lived
in the forum State, conducted business with plaintiff within the forum State, performed
contract duties in the forum State, and committed tortious acts within the forum State
sufficient to state a prima facie case of personal jurisdiction). By contrast, Plaintiff’s
complaint describes a contractual relationship which she entered into with Georgia residents
in the State of Georgia, a dispute about her performance under the contract in Georgia, and
Diamond Crystal Brands, Inc., 593 F.3d at 1268 (“[I]t is settled that entering a contract with a
citizen of another state, standing alone, does not automatically satisfy the minimum contacts test.”).
a resulting legal action in Georgia. Because there are no allegations in the complaint that
Defendants conducted any activities in, or purposefully directed any of their activities
toward, the State of Alabama, the complaint does not sufficiently allege even a prima facie
case of personal jurisdiction over the non-resident Defendants and is, therefore, due to be
For the reasons stated above, it is hereby ORDERED that Defendants’ Motion to
Dismiss (Doc. # 4) pursuant to Fed. R. Civ. P. 12(b)(2) is GRANTED, and this case is
dismissed without prejudice for lack of personal jurisdiction over Defendants.
DONE this the 24th day of March, 2014.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE
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