Fidelity and Deposit Company of Maryland v. Capri Industries, Inc. et al

Filing 33

ORDER denying 19 Motion to Dismiss for Lack of Jurisdiction - Signed by Chief Judge James C. Dever III on 11/2/2015. (Tripp, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DNISION
No. 5:14-CV-455-D

)
)
)
)
Plaintiff,
)
)
v.
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CAPRI INDUSTRIES, INC.,
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JACQUELYN K. FINK, GARY W. FINK, )
)
SHAWN P. HIESTER, and
KATHLEEN M. HIESTER,
)
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Defendants.
)

FIDELITY AND DEPOSIT COMPANY
OF MARYLAND,

ORDER

On January 20,2015, defendants Shawn P. Hiester and Kathleen M. Hiester ("defendants")
moved to dismiss Fidelity and Deposit Company ofMaryland' s ("Fidelity" or "plaintiff'') complaint
for lack of personal jurisdiction. See [D.E. 19]; Fed. R. Civ. P. 12(b)(2). On February 13, 2015,
Fidelity responded in opposition. See [D.E. 26]. As explained below, the court denies defendants'
motion to dismiss.
Under Rule 12(b)(2), plaintiff must prove personal jurisdiction.

See,~, Mylan Labs ..

Inc.

v. Akzo. N.V., 2 F.3d 56, 59-60 (4th Cir. 1993); Fed. R. Civ. P. 12(b)(2). If the court resolves a
motion to dismiss for lack of personal jurisdiction without an evidentiary hearing, a plaintiff must
show only a prima facie case of personal jurisdiction. Mylan Labs. Inc. 2 F.3d at 60. In deciding
whether plaintiff has proven personal jurisdiction, the court "must draw all reasonable inferences
arising from the [plaintiff's] proof, and resolve all factual disputes, in the plaintiff's favor." Id.;
Universal Leather. LLC v. Koro AR. S.A., 773 F.3d 553, 558 (4th Cir. 2014).

On June 25, 2007, defendants signed an indemnity agreement in favor of Fidelity. See
Compl. [D.E. 1] ~ 10; [D.E. 26-1] 5. Defendants signed the indemnity agreement in consideration
of Fidelity issuing surety bonds on behalf of Capri Industries, Inc. ("Capri") (another defendant in
this case). See Compl. ~ 10. Capri is an electrical contractor based in Florida. See id. ~ 2; [D.E. 20]
8-9. When defendants executed the indemnity agreement, Shawn Hiester was Capri's Vice
President. See [D.E. 26-1] 4-5. Capri has been registered to do business in North Carolina since
2009 and has listed Shawn Hiester as its Vice President since that time. See [D.E. 26-2] 1; [D.E. 263] 1, 5. Fidelity issued bonds on Capri's behalfin 2010 concerning two North Carolina projects and
those projects and bonds are the subject of the lawsuit in this action. See Compl. ~~ 10-41; [D.E.
26-5, 26-6].
North Carolina's long-arm statute provides a basis for exercising personal jurisdiction over
defendants.

See,~.

N.C. Gen. Stat. § 1-75.4(5); Universal Leather, LLC, 773 F.3d at 558-63;

Ellison Windows & Doors. Inc. v. Vinyl Prods., Inc., No. CN. A 1:99CV689, 2000 WL 33389671,
at *3-7 (M.D.N.C. Jan. 20, 2000) (unpublished); Cornerstone Orthopedic Hosp. v. Marquez, 944
F. Supp. 451, 452-54 (W.D.N.C. 1996). Moreover, in light of the record, applying the long-arm
statute to defendants does not violate due process.

See,~.

Universal Leather. LLC, 773 F.3d at

558-63; Ellison Windows & Doors, Inc., 2000 WL 33389671, at *4-7; Cornerstone Orthopedic
Hosp., 944 F. Supp. at 453. Thus, the court has jurisdiction over Shawn and Kathleen Hiester. See,
~.Universal Leather.

LLC, 773 F.3d at 558; Hartford Casualty Ins. Co. v. Farley Assocs .. Inc., No.

0:13-547-CMC, 2013 WL 3746016, at *3-5 (D.S.C. July 15, 2013) (unpublished); RLI Ins. Co. v.
Bennett Composites. Inc., No. CN.A 04-272,2005 WL 724184, at *3-4 (E.D. Pa. Mar. 28, 2005)
(unpublished); Ellison Windows & Doors. Inc., 2000 WL 33389671, at *4-7; Cornerstone

2

Orthopedic Hosp., 944 F. Supp. at 452-54.
In sum, defendants' motion to dismiss for lack of personal jurisdiction [D.E. 19] is

DENIED.
SO ORDERED. This_!_ day ofNovember 2015.

SC.DEVERlli
J
Chief United States District Judge

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