Malebranche v. Johnson
Filing
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MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 7/16/2015. (aos, Deputy Clerk)
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FILED
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LOGGED -_RECEIVED
JUL 1 6 2015
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COURT OF MARYLAND
AT GREENBELT
CLERK, U,S, DISTRICT COURT
DISTRICT OF MARYLAND
BY
DEPUTY
SOli/hem Dil'isioll
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PHILII>PE R. MALEBRANCHE,
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Plaintiff,
v.
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COLLEEN A. JOHNSON,
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Defendant.
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Case No.: G.JH-15-"52
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MEMORANDUM OPINION
This is a defamation
spouse. Defendant
letter sent by Johnson
Johnson
case brought by Plaintiff Philippe R. Malebranche
from her residence
located in New .Jersey.
has tiled a motion to dismiss for lack of personal jurisdiction
under Fed. R. Civ. P.
that follow. Johnson's
See Local R. 105.6 (Md.). For the reasons
motion is GRANTED.
BACKGROUND
Malebranche
and Johnson
resided as a married couple in Maryland
granted a divorce by the Circuit Court for St. Mary's
See EeF NO.2 at
Johnson
arises from a
in Arizona to an individual
12(b)(2). See Eel' No. 10. A hearing is unnecessary.
I.
against his fonner
See ECF No. I. The alleged defamation
Colleen A. Johnson.
~i&
I
Eel' No. II-I
County. Maryland
at 3. Malebranche
continues
now residcs in Arizona. See ECF NO.2. On Novcmber
Malebranehe's
supervisor.
Lieutenant
Colonel Timothy
until they were
on September
[to Johnson]
13.2013.
to rcside in Maryland
10. 2014. Johnson
while
sent a letter to
Ilassei. who was located in New Jersey.
See id. at ~ .• & lOCI' No. 10-1 at II. In the letter. Johnson wrote that Malebranehe
make payments
ENTERED
per court order with regard to his military pension"
"is failing to
and requested
Hasse" s assistance
in obtaining
tbe funds. See ECf' No. 10-1 at I 1-12. Sbc also wrote that
Malebranche
had violated the Uniform Code of Military Justice and demonstrated
"unbecoming
of an ofliccr:'
adultery
in a Maryland
Malebranche
court. and that Malebranchc
fllcd a defamation
mcntally and physically
of
abused her during
claim in the Circuit Court lor St. Mary's County.
letter. See ECF
on January 9. 2015 based on Johnson's
that Johnson's
opportunity
is a "scrial cheatcr" who was convicted
See hi. & ECF NO.2 at ~~ 8-11.
the marriage.
Maryland
that Malebranche
conducl
letter harmed his reputation
and prospective
Johnson
I
0.2. Malebranche
and caused him to lose a professional
alleges
advancemcnt
income. See id. at ~ 19-20.
filed a notice of removal in this Court on f'ebruary
a motion to dismiss for lack of personal jurisdiction
18. 2015. see lOCI' NO.1. and
on February 23. 2015. See lOCI'
I
o. 10. Thc
Court will now address the motion to dismiss.
II.
STANDARD OF REVIEW
When a case has been removed
to federal court. the court has pcrsonal jurisdiction
party if the state court from which that case was removcd
had personal jurisdiction
over a
over that
party. Diamond Healll1care o(Ohio. Inc. \'. Hllmilily o(All/IJ' Healll1 Parlners. 229 F.3u 448. 450
(4th Cir. 2000) (citing ESAB Grollp. Inc. \'. Cell/riclI/. Inc.. 126 F.3d 617. 622 (4th Cir. 1997)
C.[ A 1 feueral court may exercise personal jurisdiction
by state law."».
When a motion to dismiss is tiled pursuant
district court determines
jurisdiction
over a defendant
if personal jurisdiction
by a prepondcrance
of the evidence.
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in the manner provided
Fcd. R. Civ. P. 12(b)(2). the
exists. and the plaintifT must establish
Care/irsllI(Afl/lyland.
Inc.
1".
Care/irsl
Pregnancy Ors .. Inc.. 334 F.3d 390. 396 (4th Cir. 2003) (citing Mylan Lahs .. Inc.
1".
Ak~o. N. V.
2 F.3d 56. 59-60 (4th Cir. 1993». The court may resolve a motion under Rule 12(b)(2) without
2
discovery
hearing. See xenerally 513 Wright & Miller. Federal Practice
or an evidentiary
Procedure
~ 1351, at 274-313
jurisdietion
as a preliminary
memoranda.
aflidavits.
(3d ed. 2004. 2012 Supp.). The court may address
matter. ruling solely on the motion
and the allegations
in the complaint.
&
personal
papers. supporting
legal
Consllirinx Enxineers C"rp. ".
Geomerric LId.. 561 F.3d 273. 276 (4th Cir. 2009). In deciding a 12(b)(2) motion to dismiss.
the court construes
all jurisdictional
allegations
in the light most favorable to the plaintiff. Nell'
Wellinx(()n Fin. Corp. \'. FiaxsiJip Res"rr De\'. Corp .. 416 F.3d 290. 294 (4th Cir. 20(5) (internal
quotation
marks omitted).
III.
DISCUSSION
Personal jurisdiction
long-arm
over a nonresident
statute confers jurisdiction
constitutional
"In applying
due process:'
Maryland's
defendant
and (2) the assertion
is propcr when ..( I) an applicable
of that jurisdiction
long-arm
statute. federal courts olien state that .[the] statutory
inquiry:"
Inc.. 84 F.3d 132. 135 (4th Cir.1996) (additional
892 A.2d 479.493
long-arm
Sr(}\'C/'\'. () 'Connell /lssocs ..
citations omitted»).
proper under constitutional
Iloweyer.
personal
statute is also required. ,\lackey \'. Compass ,l/krx. Inc..
n. 6 (Md. 2006) (stating that it is not permissible
analysis under the long-arm
to simply dispense
\\ith
statute). Indeed. there may be cases where personal jurisdiction
due process but not under Maryland's
long-ann
will arise which will be deemed outside the scope of the Maryland
3
is
statute. See Drinx.
423 F.Supp. 2d at 545 (citing Krashes \'. Whire. 341 A.2d 798. 804 (Md. 1975) ("Perhaps
situations
inquiry
Drinx \'. SIIIIiWln. 423 F.Supp. 2d 540. 544 (D. Md.
2006) (citing Car~firsr o!,A4wyland. Inc.. 334 FJd 390. 396-97:
under Maryland's
with
Nichols \'. G.D. Searle & Co.. 991 F.2d 1195. 1199 (4th Cir. 1993).
merges with [the] constitutional
jurisdiction
is consistent
state
fact
'Iong arm' statute.
although there may he a constitutional basis for jurisdiction over the nonresident defendant.")).
Thus, this Court first looks at Maryland's long-arm statute.
A. Maryland's
Lon!:-Arm Statute
A plaintilTmust specitically identify the Maryland statutory provision that authorizes
jurisdiction. either in his complaint or in opposition to a Rule 12(b)(2) motion. See ()l/el1heill1er
Publishers.
Illc. \". 1'10)"lI1ore. Il1c ..
158 F.Supp. 2d 649, 652 (D. Md. 2001). In his opposition to
Johnson's motion. Malebranche argues personal jurisdiction is proper under Md. Code. Courts &
Jud. Procs. Article ("CJp") ~ 6-103.1. ~ 6-103(b)(3). and ~ 6-103(b)(4). The Court will look at
each provision in turn.
i.
~ 6-103.1
Malcbranche argues that Maryland has jurisdiction over Johnson under Md. Code. CJI' ~
6.103.1. Section 6-103.1 provides:
A court may exercise personal jurisdiction over a nonresident
defendant in an)' civil proceeding arising out of the marital
relationship or involving a demand for child support. spousal
support. or counsel fees if the plaintiff resides in this State at the
time suit is tiled and the nonresident defendant has been personally
served with process in accordance with the Maryland Rules and:
(I) This State was the matrimonial domicile of the parties
immediately before their separation: or
(2) The obligation to pay child support. spousal support. or counsel
fees arose under the laws of this State or under an agreement
executed by one of the parties in this State.
Generally. an action "arising out ofa marital relationship" involves a dispute over a duty or right
that the marriage created. Thus. common examples arc a claim Ii.lrdivorce, marital property. or
support payments. In essence. "arising out of' means the marriage's existence is the basis Ii.)rthe
cause of action. See A 11111011 AlllI1ol1. 282 Md. 483. 386 A.2d 766, 768 n.2 (Md. 1978)
\'.
(explaining that courts have fi.llmdpersonal jurisdiction over nonresident defendants in alimony
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suits where the nonresident committed marital wrongs in the limun state): G/ading \'. Fur/J/an.
383 A.2d 398. 402-03 (Md. 1978) (tinding continuing jurisdiction over nonresident defendant
over claim for child support in forum where award was issued):
2d 725.401-04
Cf
/'m1'ers \'. /'arish('/'. 409 S.E.
(N.C. CI. ApI'. 1991) (finding personal jurisdiction over nonresident was proper
where resident brought claim for child support because statute provided li)r personal jurisdiction
when the action arose out of the marital relationship).
Malebranche contends that his defamation suit arises out of the marital relationship
because Johnson' s letter-containing
the alleged delamatory remarks-references
actions that
Malebranche took during the marriage. See ECF No. 11-1 at 6. Johnson responds that a
discussion of actions that occurred during the marriage does not cause the letter. or the resulting
defamation suit. to arise out of the marital relationship.
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See ECr No. 12 at 7. Johnson is correct.
Malebranche's action is for delamation. an action that arose Ii'om his li1l'lner spouse's
letter. not from their fonner marriage. Indeed. the alleged defamation did not even occur during
the marriage. Thus. while Johnson's allegedly delamatory letter may discuss the marriage. the
civil action of defamation did not arise from the marriage. As such. Md. Code. C.l1' ~ 6-103.\
does not provide the C01ll1with a basis for jurisdiction over Johnson.
ii.
~ 6-103(h)(3)
Malebranche also asserts that Maryland has jurisdiction over Johnson under Md. Code.
CJI' ~ 6-1 03(b )(3). This subsection provides that Maryland has personal jurisdiction over a
person who "[c]auses tortious injury in the State by an act or omission in the Statel.]" See CJI' ~
6-1 03(b )(3). Thus. both ..the injury and the ad' must occur in Maryland. Aphena /'ar/J/a
While Johnson also states that she was not "personally served" as required by Md. Code. CJI' ~
6-103.1. she was served via certified mail. and Maryland permits service of process through
certified mail. See Md. R. 2-121 (a).
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Soill/iom-Maryiand
LLC \'. BioZone Lahs. Inc.. 912 F.Supp. 2d 309, 316 (D. Md. 2(12) (citation
omitted and emphasis added). It is not enough for Malebranche to feel the injury in Maryland
when the act occurred elsewhere. See id. Although defamation occurs "wherever the oflensive
material is circulated or distributed:'
TELCO CO/ll/ll'.\'I'. An Apple A Day. 977 F.Supp. 40.t 408
(E.D. Va. 1997) (citing Kee10l11'.Hustler Maga::ine. Inc.. 465 U.S. 770, 777 (1984». there is no
allegation that the letter was circulated or distributed in Maryland. Rather. Johnson attaches the
letter to her motion and the letter is clearly addressed to Hassel in New Jersey.2 See ECF NO.1 01 at 11-12. Because the alleged tortious aet did not occur in Maryland. ~ 6-103(b)(3) does not
provide Maryland with personaljurisdietion
iii.
over Johnson.
~ 6-103(11)(4)
Malebranche also invokes subsection (b)(4) of Maryland's long-ann statute. which
provides for jurisdiction where the delendant eauses a tortious injury in or outside Maryland by
an aet outside Maryland "ifhe regularly docs or solicits business. engages in any other persistent
course of conduct in the State or derives substantial re\'enue trom goods. food. services, or
manul~lCtured products used or consumed in the state:' Md. Code. CJI' ~ 6-\ 03(b)(4).
Malebranche asserts that Johnson receives substantial revenue Irom Maryland through her
alimony payments (which come frOin Malebranehe in Maryland). See ECF No. 11-1 at 7-8.
Ilowever. alimony is not a good. I(lod. service. or manufactured product used or consumed in
2 In his opposition to Johnson's motion. Malebranehe makes a stray. unsupported reference to a
"subject email" sent to Ausley Associates in Maryland. See ECFNo. 11-1 at 10-11. There is no
allegation regarding this "subject email" in the Complaint and Malebranche docs not otherwise
mention this email in his opposition. By contrast. Johnson filed a declaration indicating that she
sent the letter to two people in New Jersey (members of the New Jersey Air National Guard) and
one person (her fanner attorney) in Virginia. See ECF No. 12-1 at 2.
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Maryland3 Thus.
* 6-103(b)(4)
docs not provide a basis liJr personal jurisdiction. and
Malebranche has not sufliciently alleged personal jurisdiction ovcr Johnson under Maryland's
long-ann statute. Even if he had. Malebranche would still nccd to satisfy the Court that
jurisdiction would be consistent with constitutional due proccss. See Nichols. 991 F.2d at 1199.
For the following rcasons. Malcbranche is unable to do so.
B. Constitutional
Due Process
Specilic personal jurisdiction is present when the claim is "related to or 'arises out 01- a
defendant's contacts with the fonlln."~ Helicop/eros Nacionales de Colo/llhia. S.A. \', Ilall, 466
U.S. 408. 414 (1984) (quoting Shil/Ter \'. Heimer. 433 U.S. 186. 204 (1977)). "To dccidc whcthcr
the requisites of spcci fic jurisdiction arc satisticd in this case. it is nccessary to considcr how
thcy apply to the particular circumstance in which. as here. an out-of~state dcfcndant has acted
outside of the forum in a manner that injures someone residing in thc fi.mlln." Care/irs/ or
Millyland. Inc.. 334 F.3d at 397. In such a case. courts have applied what has bccomc known as
the "efTects test." This test originated with Calder
1',
Jones. 465 U.S. 783 (1984). whcre an
actress brought suit in California claiming that a reporter and an editor from the National
Enquirer had libeled hcr in an article written and edited in Florida. Thc Supremc Court held that
a court may exercise spccitic personal jurisdiction over nonresident defendants who acted
outside of the forum state but expressly aimed their actions at thc forum state and kncw that their
Nor would one letter. that did not go to Maryland. support a finding of persistcnt course of
conduct in Maryland. See Drin~. 423 F.Supp. 2d at 546 (finding that one e-mail. standing alonc.
would not support a tinding of persistent conduct).
~ "The nature ofthc claim and the defendant's contacts with the forum state detcrmine whether a
court may assert specific or general personal jurisdiction." Johal/Sson C"ji. \'. Bml'l1ess Coos/r,
Co .. 304 F.Supp.2d 701, 703 (D. Md. 2004). General jurisdiction may be excrcised whcre a
dcfCndant maintains "continuous and systematic" contact with the fi.mlln state. lIelicop/eros. 466
U.S. at 415 (quoting Perkins \'. Ben~lIe/ Conso/. Minin~ Co.. 342 U.S. 437.438 (1952)). Hcrc.
Malebranchc's argument rclates to specific and not generaljurisdietion.
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actions would cause harm in thc forum state. Id. at 789-90. In Care/irs! oj'Mar)'/anel. Inc.. the
.
.
.
Fourth Circuit stated that:
This "effects tesC of specilic jurisdiction is typically construcd to
rcquire that the plaintiff establish that: (I) the defendant committcd
an intentional tort: (2) the plaintiff felt the brunt of the harm in the
forum. such that the forum can be said to be the focal point of the
harm; and (3) the defendant expressly aimed his tortious conduct at
the Itmnn. such that the It)rum can be said to be the f(lcal point of
the tortious activity.
See 334 FJd at 398 n.7 (citing IMO Indas .. Inc.
I'.
Kieker! AG, 155 F.3d 254.
265-66 (3d Cir. 1988)).
Malebranche relics on Calder to assert that personal jurisdiction exists in this case
because. he argues. Johnson kncw he would feel the harm of her defamation in Maryland. See
ECF No. 11-1 at 8. However. unlike in Calder. where the magazine that ran the alleged
defamation had its highest circulation in Califtlrnia. see 465 U.S. at 789-90. Malebranchc has not
alleged that Johnson's letter was sent or circulatcd in Maryland5 Thus. under Malebranchc' s
logic. a defendant in a defamation case would have minimum contacts with any state in which
the plainti ITresides. Howcver. "the effects test docs not supplant the minimum contacts analysis .
. . ,'. Consul!ing Engineers Corp .. 561 F.3d at 280. Indeed. if it did then ':iurisdiction would
depend on aplaimiff's
decision about where to establish residence," ESAB Group. Ine.. 126 F.3d
at 625-26 (emphasis in original). While plaintiff-s residence. and thereftlre his place of injury.
Malebranche docs assert in his opposition that Johnson's statement that the letter was sent to
New Jersey and Virginia and not Maryland is a fillse representation of the filctS. See ECF No. III at 11. However. he docs not provide any counter representation of lilcts other than the stray.
unsupported comment noted earlier. Instead. he asserts that "rt jhere can be no dispute that the
economic effects resulting from the defamatory communication experienced by the plaintifTha\'e
taken placc and will continue to take place in Maryland," See iel. But that is not the same as
alleging that the letter was sent to Maryland or that Maryland was otherwise the Itlcal point of
the alleged tortious activity.
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may affect the minimum contacts test. "it must ultimatcly be accompanicd by the defendant's
own contacts with the state if jurisdiction over the defendant is to be upheld."' Id at 626.
Malebranche cannot show that Johnson aimed her conduct at Maryland simply because
Malebranche lives in Maryland. Johnson sent the letter to the commander of the I 19th Fighter
Squadron of the New Jersey Air National Guard in New Jersey. with a copy sent to another
offieer in New Jersey and to Johnson's lawyer in Virginia. See ECF No. 12-1 at 2 & 5. In it. she
explains that Malebranche was recently hired as a pilot !4Jrthe 1I9th Fighter Squadron
(presumably in New Jersey). See it!. While she discusses events that occurred in Maryland. she
requests that the commander. who is located in New Jersey. aid her in receiving her alleged share
of pension funds from Malebranche. See ill. at 5-6. Thus. Maryland is not the focal point of the
alleged defamation. Johnson' s knowledge of Malebranehe' s residence in Maryland is not enough
for the Court to inter that Johnson expressly aimed the alleged tortious conduct at Maryland. See.
e.g .. Clell/ells
I'.
McNall/ee. 608 F. Supp. 2d 811 (S.D. Tex. 2009). (!fl"d. 615 F.3d 374 (5th Cir.
20 I0) (finding the knowledge of likely harm insufficient to make a prima I~leieshowing that
Texas was the focal point of the statements in a defamation case).
C. Diseove'1' Request
Malebranehe contends that discovery should be conducted to determine if personal
jurisdiction is proper. See ECF No. 11-1 at 12. "When a plaintilTolTers only speculation or
eonclusory assertions about contacts with a forum state. a court is within its discretion in denying
jurisdictional discovery."' Car~/irsl (JOvlwylaml. 1111'334 F.3d at 402-03 (citing ,l/cLallghlill ".
..
McPhail, 707 F.2d 800. 806 (4th Cir.1983) (holding that district court did not abuse its discretion
in denying jurisdictional discovery when. "[ajgainst the defendants' aftidavits:'
nothing beyond his bare allegations that the defendants had
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II
plaintiff"ot'lered
signilicant contacts with the
[forum] state of Maryland")) (internal quotation marks omitted) (additional citations omitted).
Here. Malebranche does not offer anything more than speculation or conclusory assertions nor
does Malebranche indicatc what additional information would be needed to establish that
personal jurisdiction would be proper. Indeed. Malebranche simply states that jurisdictional
discovery is necessary without reference to the purpose that such discovery would serve. See
ECF No. 11-1 at 12. Discovery on the issuc of personal jurisdiction will not be permitted.
IV.
CONCLUSION
Malebranche has tailed to properly allege personal jurisdiction under Maryland's long-
arm statute or under constitutional due process. Johnson' s contacts with Maryland arc not
sufficient for personal jurisdiction in this casco See Dring. 423 F.Supp. 2d 540 ("When the facts
present even a close question. '[iJt would not be in the interests of the parties ... to litigatc this
case in Maryland. only to have a ruling upholding the assertion of jurisdiction over [Defendant!
reverscd on appeaL ... ) (citation omitted). Accordingly. this case is DISMISSED for lack of
personal jurisdiction.
A separate Order follows.
Dated: July
I y . 2015
GEORGE J. HAZEL
UNITED STATES DISTRICT JUDGE
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