Womack v. Moulton College et al

Filing 6

MEMORANDUM AND ORDER that this action is dismissed without prejudice for lack of personal jurisdiction. A separate judgment will be entered. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JESSICA MATTIE LEE WOMACK,
Plaintiff,

8:17CV273

vs.
MOULTON COLLEGE, ACTIVATE
LEARNING, THE OXFORD
PARTNERSHIP, and GEMS
EDUCATION SOLUTIONS,

MEMORANDUM
AND ORDER

Defendants.
Plaintiff filed her Complaint on July 27, 2017. (Filing No. 1.) She has been
granted leave to proceed in forma pauperis. (Filing No. 5.) The court now conducts
an initial review of Plaintiff’s Complaint to determine whether summary dismissal
is appropriate under 28 U.S.C. § 1915(e)(2).
I. PRIOR ACTION
In a prior action in this court,1 Plaintiff sued Activate Learning, Moulton
College, and The Oxford Partnership – all nonresident defendants – for breach of
contract and some related claims. (See Filing No. 31.) Plaintiff is an educator who
allegedly entered into an employment agreement with the defendants for Plaintiff
to teach English at a college in Saudi Arabia. (Id. at CM/ECF p. 2.) According to
Plaintiff, The Oxford Partnership is a “consortium” comprised of GEMS Education
Solutions, Moulton College, and Activate Learning. (Filing No. 28 at CM/ECF p.
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Womack v. Moulton College, Activate Learning, and The Oxford
Partnership, Case No. 8:16CV145 (D. Neb. May 8, 2017) (United States District
Judge John M. Gerrard presiding). See Stutzka v. McCarville, 420 F.3d 757, 760
n.2 (8th Cir. 2005) (court may take judicial notice of judicial opinions and public
records).

2.) She did not seek relief against GEMS Education Solutions. (Id. at CM/ECF p.
13.)
In her initial complaint, Plaintiff sued Activate Learning and Moulton
College. (Filing No. 1.) Activate Learning and Moulton College filed a motion to
dismiss for lack of personal jurisdiction. (Filing No. 11.) Before ruling on the
motion, the court allowed Plaintiff to amend her complaint to add The Oxford
Partnership as a defendant. (Filing No. 27.) Plaintiff was given the opportunity to
argue and present evidence on whether the court could exercise jurisdiction in
Nebraska over the defendants. (See Filing Nos. 16-18, 19-21, 28, 28-1.) The court
considered the motion to dismiss simultaneously with its initial review of
Plaintiff’s amended complaint adding The Oxford Partnership as a defendant. (See
Filing No. 31.) The court ultimately determined that it lacked personal jurisdiction
over all of the defendants. (Id.)
The court found that, because the negotiations and communications offering
employment to Plaintiff came directly from The Oxford Partnership, Plaintiff
failed to establish that Activate Learning or Moulton College had any minimum
contacts with Nebraska. (Id. at CM/ECF p. 6.) Accordingly, Plaintiff focused on
imputing the contacts of The Oxford Partnership to Activate Learning and Moulton
College in order to permit the court to exercise jurisdiction over Activate Learning
and Moulton College. (See id.) Plaintiff argued, and presented evidence, that The
Oxford Partnership contacted her via email about employment and ultimately, she
signed the Letter of Appointment while residing in Nebraska; payments she
received were deposited into her bank in Nebraska; and she was “mobilized” from
Nebraska. (See id. at CM/ECF pp. 7-8.) After a thorough analysis, the court found
that Plaintiff failed to establish the minimum contacts necessary – whether
individually or through the contacts of The Oxford Partnership – for the court to
exercise either general or specific jurisdiction over Activate Learning or Moulton
College. (Id. at CM/ECF pp. 6-12.) Applying the same reasoning, the court
determined that Plaintiff also could not establish personal jurisdiction over The
Oxford Partnership. (Id. at CM/ECF pp. 12-13.) The court dismissed Plaintiff’s
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claims without prejudice for lack of personal jurisdiction. (Id. at CM/ECF pp. 1314.) It informed Plaintiff “should she choose to do so, she can still pursue [her
claims] in a forum that has jurisdiction over the defendants.” (Id.) (emphasis
added)
II. CURRENT ACTION
On July 27, 2017, nearly three months after the court dismissed her prior
action, Plaintiff sues Moulton College, Activate Learning, The Oxford Partnership,
and GEMS Education Solutions – all nonresident defendants – for breach of
contract based upon the same factual circumstances alleged in her prior action.
(Filing No. 1.) She again alleges that The Oxford Partnership is a “consortium”
comprised of GEMS Education Solutions, Moulton College, and Activate
Learning. (See id. at CM/ECF p. 2.) With regard to personal jurisdiction, Plaintiff
states only, “This Court has personal jurisdiction pursuant to 28 U.S.C. § 1332,
Civil Procedures Rules and Law, 326 U.S. 310 and Sporadic or Casual Activity
Related Lawsuits: Even a defendant whose activity in the state is sporadic, or
consists only of a single act, may be subject to the personal jurisdiction of a court
in that state when the lawsuit relates to that activity or act.” (Id. at CM/ECF p. 3.)
III. APPLICABLE STANDARDS OF REVIEW
The court is required to review in forma pauperis complaints to determine
whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). The court
must dismiss a complaint or any portion of it that states a frivolous or malicious
claim, that fails to state a claim upon which relief may be granted, or that seeks
monetary relief from a defendant who is immune from such relief. 28 U.S.C. §
1915(e)(2)(B). It is appropriate for the court to dismiss a complaint on initial
review where there is an obvious lack of personal jurisdiction. See Sanders v.
United States, 760 F.2d 869, 871-72 (8th Cir. 1985); see also Trujillo v. Williams,
465 F.3d 1210, 1216 (10th Cir. 2006) (citing Neitzke v. Williams, 490 U.S. 319
(1989)).
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IV. DISCUSSION
The court finds that the current action is precluded because the court
dismissed Plaintiff’s prior action, without prejudice, for lack of personal
jurisdiction. “‘The law of the forum that rendered the first judgment controls the
res judicata2 analysis.’” Tri-Nat’l, Inc. v. Yelder, 781 F.3d 408, 413 (8th Cir. 2015)
(citations omitted). Because the first judgment here was by the United States
District Court of Nebraska, sitting in diversity, the court “must give that federal
diversity judgment the same claim-preclusive effect that [Nebraska] state courts
would give to a state court judgment.” See id. (citing Semtek Int’l, Inc. v. Lockheed
Martin Corp., 531 U.S. 497, 508 (2001)); see also Hillary v. Trans World Airlines,
Inc., 123 F.3d 1041, 1043–44 (8th Cir. 1997); Lane v. Sullivan, 900 F.2d 1247,
1249–50 (8th Cir. 1990) (state law controls the application of collateral estoppel3
when the judgment to be given preclusive effect was made by a federal district
court sitting in diversity).
In Nebraska, issue preclusion bars the relitigation of a finally determined
issue that a party had a prior opportunity to fully and fairly litigate. Issue
preclusion applies where (1) an identical issue was decided in a prior action, (2) the
prior action resulted in a final judgment on the merits, (3) the party against whom
the doctrine is to be applied was a party or was in privity with a party to the prior
action, and (4) there was an opportunity to fully and fairly litigate the issue in the
prior action. Issue preclusion applies only to issues actually litigated. Issue
preclusion protects litigants from relitigating an identical issue with a party or his
2

The preclusive effect of a judgment is defined by claim preclusion and
issue preclusion, which are collectively referred to as “res judicata.” Taylor v.
Sturgell, 553 U.S. 880, 892 (2008).
3

Collateral estoppel is also referred to as issue preclusion. Estrada–
Rodriguez v. Lynch, 825 F.3d 397, 402 (8th Cir.), cert. denied sub nom. EstradaRodriguez v. Lynch, 137 S. Ct. 388, 196 L. Ed. 2d 295 (2016).
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privy and promotes judicial economy by preventing needless litigation. Hara v.
Reichert, 843 N.W.2d 812, 816 (Neb. 2014). Many cases have given preclusive
effect to rulings on personal jurisdiction. See Pohlmann v. Bil-Jax, Inc., 176 F.3d
1110, 1112 (8th Cir. 1999) (citing examples and authority). However, plaintiffs can
establish that “critical jurisdictional facts have changed in the interim,” which
would not prohibit relitigation of the issue. Id. at 1113. The Nebraska Supreme
Court has come to the same conclusion. See Stewart v. Hechtman, 581 N.W.2d
416, 418-19 (Neb. 1998).
The court concluded in Plaintiff’s prior action that it did not have personal
jurisdiction over Activate Learning, Moulton College, or The Oxford Partnership.
Plaintiff did not appeal that decision. Now, she fails to allege any “critical
jurisdictional facts have changed . . .” in the mere three months since that decision.
Instead, she apparently seeks to relitigate the question of personal jurisdiction in
the current action. But, the court preclusively determined the question of personal
jurisdiction in the prior action. Accordingly, the court will again dismiss Plaintiff’s
claims without prejudice for lack of personal jurisdiction. This finding applies
equally to GEMS Education Solutions, as based upon Plaintiff’s allegations, it is in
the same position as Activate Learning and Moulton College – a nonresident
defendant that is part of the “consortium” of The Oxford Partnership - and the
court already determined that it lacked personal jurisdiction over The Oxford
Partnership. Issue preclusion may be used by a nonparty in a later action, either
offensively or defensively. Hara, 843 N.W.2d at 817. Alternatively, should issue
preclusion not apply, Plaintiff fails to allege contacts with Nebraska sufficient to
establish personal jurisdiction over any defendant in this case for the same reasons
set forth in the court’s decision in the prior action. Because of the prior action,
Plaintiff was on clear notice of such a requirement.
The court once again reminds Plaintiff that she can still pursue her claims in
a forum that has jurisdiction over the defendants. The court warns Plaintiff that,
unless she alleges “critical jurisdictional facts have changed,” she risks sanctions
pursuant to Federal Rule of Civil Procedure 11 should she bring a third action in
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this court against the defendants for breach of contract based upon the same factual
circumstances.
IT IS THEREFORE ORDERED that:
1.
This action is dismissed without prejudice for lack of personal
jurisdiction.
2.

A separate judgment will be entered.

Dated this 16th day of August, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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