GIRARD v. DODD et al

Filing 39

DECISION AND ORDER ON DEFENDANT STEPHEN DODD'S MOTION TO DISMISS - denying 30 Motion to Dismiss; denying 30 Motion to Join in the Pending Motions to Dismiss filed by Defendants Roger Beaupre and the City of Biddeford. By JUDGE D. BROCK HORNBY. (mnw)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
BERTRAND GIRARD,
PLAINTIFF
V.

STEPHEN DODD, in his individual
capacity; ROGER BEAUPRE, in his
official capacity as Chief of Police for
the Biddeford Police Department and in
his individual capacity; AND CITY OF
BIDDEFORD,
DEFENDANTS

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CIVIL NO. 2:16-CV-165-DBH

DECISION AND ORDER ON DEFENDANT STEPHEN DODD’S
MOTION TO DISMISS
On June 30, 2016, this court ordered service on the defendant Stephen
Dodd by publication (in two newspapers of general circulation in Florida), by
serving Dodd’s counsel of record in a related matter, and by ordering the plaintiff
to mail a copy of the summons and Amended Complaint to Dodd’s last-known
address in Crestview, Florida. See Order for Service by Publication (ECF No. 18).
On August 4, 2016, Dodd, acting pro se, moved to dismiss the plaintiff’s
Amended Complaint for lack of personal jurisdiction, insufficient process, and
insufficient service of process. Mot. to Dismiss & Incorp. Mem. of Law at 1 (ECF
No. 30); see Fed. R. Civ. P. 12(b)(2), (4) & (5). In the alternative, Dodd asked for

leave to join in the Municipal Defendants’ “pending” motion to dismiss.1 For the
reasons that follow, Dodd’s motion to dismiss is DENIED.
First I address Dodd’s claim of insufficient process under Federal Rule of
Civil Procedure 12(b)(4). A motion of insufficient process concerns the form of
the process rather than the manner or method of its service. Thus, a motion
under Rule 12(b)(4) in effect challenges the content of the summons and whether
it complied with Federal Rule of Civil Procedure 4(a) and (b). There is nothing
deficient about the summons issued in this case. It contains the information
mandated by Federal Rule of Civil Procedure 4(a) and is signed and sealed by the
Clerk of the United States District Court for the District of Maine as mandated
by Rule 4(b).
As to Dodd’s claim of insufficient service of process, Federal Rule of Civil
Procedure 4(e) provides that a defendant may be served by following state law,
and Maine law allows service by alternate means “upon a showing that service
cannot with due diligence be made by another prescribed method . . . .” M.R.
Civ. P. 4(g)(1). Girard filed a motion to serve Dodd by alternate means, which I
granted after concluding that Girard had satisfied the requirements of the
Federal and Maine Rules of Civil Procedure. Specifically, Girard demonstrated
that he had exercised due diligence in attempting to serve Dodd by personal
service, that Dodd could not reasonably be located and may have been avoiding
process of service, and that Girard’s requested manner of service (by publication

I grant Dodd’s motion to join, but I entered an order today denying the Municipal Defendants’
motion to dismiss.
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in local newspapers, service upon his counsel of record in a related matter, and
by mailing the summons and Amended Complaint to his last-known address in
Florida) was reasonably calculated to provide notice of this action in the most
practical manner. Order for Service by Publication at 1-2. It is apparent from
later filings in this court that the defendant Dodd has in fact received notice.
The Maine Rule also states that service “is complete on the twenty-first day after
the first service or as provided in the court’s order. The plaintiff shall file with
the court an affidavit demonstrating that publication or compliance with the
court’s order has occurred.” M.R. Civ. P. 4(g)(3). Girard’s affidavit, which he
submitted to the court on August 23, 2016 (in accordance with the Rule), states
that he mailed the summons and the Amended Complaint to Dodd’s counsel of
record in a related matter on July 1, 2016, that he arranged for service of Dodd
in Crestview, Florida on July 14, 2016 (with an executed proof of service filed
with the court on July 25, 2016), and that he published this court’s Order for
Service by Publication in two local newspapers for three consecutive weeks, the
most recent publication on August 1, 2016. See Aff. of Att’y Daniel G. Lilley
Attesting to Compliance with Order for Service by Publication (ECF No. 35).
Girard has complied with the Federal (and thus Maine) Rules for making proper
service of process.
Finally, I address Dodd’s claim that this court lacks personal jurisdiction
over him. The plaintiff Girard bears the burden to make a prima facie showing
that the court has personal jurisdiction over the defendant. Hannon v. Beard,
524 F.3d 275, 279 (1st Cir. 2008). “Under the prima facie standard . . . [I] accept

the plaintiff’s (properly documented) evidentiary proffers as true, and construe
those facts in the light most congenial to the plaintiff’s jurisdictional claim.” Id.
(internal quotation marks omitted).
“An exercise of jurisdiction must be authorized by state statute and must
comply with the Constitution.” Harlow v. Children’s Hosp., 432 F.3d 50, 57 (1st
Cir. 2005). The Maine long arm statute extends “to the fullest extent permitted
by the due process clause of the United States Constitution.” 14 M.R.S.A. § 704A(1) (2015).

Under constitutional analysis, there are two types of personal

jurisdiction, general and specific. “The plaintiff need not prove the existence of
both types of jurisdiction; either one, standing alone, is sufficient.” Harlow, 432
F.3d at 57. I address only specific jurisdiction.
“For specific personal jurisdiction, the constitutional analysis has three
distinct prongs: relatedness, purposeful availment, and reasonableness.”

A

Corp. v. All Am. Plumbing, Inc., 812 F.3d 54, 59 (1st Cir. 2016). All three prongs
are satisfied here.
First, for relatedness, Girard must demonstrate a nexus between his
claims and Dodd’s Maine-based activities. Id. This is a “relaxed standard,”
although it nevertheless requires an examination of the relationship between
Dodd and Maine.

Id.

Girard has carried his burden by demonstrating (for

purposes of the personal jurisdiction analysis) that between 1977 and 1982,
Dodd was employed in Maine, Dodd sexually assaulted Girard in Maine, and, at
the time, both Dodd and Girard were residents of Maine.

The second prong is purposeful availment.

“The purposeful availment

inquiry is intended to assure that personal jurisdiction is not premised solely
upon a defendant’s random, isolated, or fortuitous contacts with the forum state.
Rather, [the focus is] on the defendant’s intentionality, and the cornerstones of
purposeful availment—voluntariness and foreseeability.” A Corp., 812 F.3d at
60. “This prong is only satisfied when the defendant purposefully and voluntarily
directs his activities toward the forum so that he should expect, by virtue of the
benefit he receives, to be subject to the court’s jurisdiction based on these
contacts.” United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 624 (1st Cir.
2001). Again, Girard carries his burden on purposeful availment for the same
reasons he carried his burden on relatedness—Girard has put forth facts that
Dodd was employed as a Biddeford, Maine police officer during the time period
when he allegedly sexually assaulted Girard. There is no persuasive argument
that Dodd did not purposefully avail himself to the jurisdiction of Maine when
he engaged in tortious conduct in Maine, against a Maine resident, while he was
living and working in Maine.
The third prong—relatedness—requires an assessment of the “extent to
which the exercise of jurisdiction over [Dodd] is fair and reasonable.” BaskinRobbins Franchising LLC v. Alpenrose Dairy, Inc., 825 F.3d 28, 40 (1st Cir.
2016). “This analysis implicates five factors,” which the First Circuit has dubbed
the “Gestalt Factors.” Id. They are:
(1) the defendant’s burden of appearing [in the forum
state], (2) the forum state’s interest in adjudicating the
dispute, (3) the plaintiff’s interest in obtaining
convenient and effective relief, (4) the judicial system’s

interest in obtaining the most effective resolution of the
controversy, and (5) the common interests of all
sovereigns in promoting substantive social policies.
Id. at 40 (internal quotation marks omitted) (alteration in original). “At this stage
of the analysis, the burden shifts to the defendant to convince the court that the
[G]estalt factors militate against the exercise of jurisdiction.” Unicomp, Inc. v.
Harcros Pigments, Inc., 994 F. Supp. 24, 33 (D. Me. 1998); see Adelson v.
Hananel, 652 F.3d 75, 83 (1st Cir. 2011).
Dodd cannot meet his burden on relatedness; the Gestalt factors weigh in
favor of litigating this case here—Dodd is already litigating a related case in this
court; Maine has an interest in adjudicating the dispute since the alleged
conduct occurred in Maine, between a Maine resident and a Maine police officer;
the plaintiff Girard lives in Maine and has an interest in obtaining convenient
and effective relief in this court; it may be a more efficient use of judicial
resources to litigate the case here because of the similarity between this case
and a related case involving the defendant Dodd; and the final factor—the
common interests of all sovereigns in promoting substantive social policies—
does not cut one way or the other. I conclude, therefore, that the plaintiff Girard
has made a prima facie showing of personal jurisdiction.
Accordingly, the defendant Dodd’s motion to dismiss is DENIED.
SO ORDERED.
DATED THIS 9TH DAY OF SEPTEMBER, 2016
S/S D. BROCK. HORNBY____________
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE