SLOANE et al v. LALIBERTE et al
Filing
53
MEMORANDUM OPINION AND RECOMMENDED RULING - MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 7/19/11. re 47 MOTION to Dismiss for Lack of Jurisdiction filed by NEWWEST SPECIAL PROJECTS LP, NEWWEST TRAVEL LTD., be GRANTED on grounds of person al jurisdiction and DENIED AS MOOT as to the doctrine of forum non conveniens. 34 MOTION to Dismiss for Lack of Jurisdiction filed by NEWWEST TRAVEL AND CRUISES LTD., DENNIS LALIBERTE be GRANTED on grounds of lack of personal jurisdiction and DENIED AS MOOT as to the doctrine of forum non conveniens. (Wilson, JoAnne)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MICHAEL T. SLOANE, CRUISE
CONNECTIONS INC., TRACEY KELLY,
SUSAN EDWARDS, AND CRUISE
CONNECTIONS CHARTER MANAGEMENT 1,
LP,
v.
DENNIS LALIBERTE,
AND CRUISES LTD.;
LTD., AND NEWWEST
LP,
)
)
)
)
)
)
Plaintiffs,
)
)
)
)
NEWWEST TRAVEL
)
NEWWEST TRAVEL
)
SPECIAL PROJECTS )
)
)
Defendants.
)
1:08CV381
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on “Defendants’ Motion to
Dismiss Pursuant to Rule 12(b)(2) of the Federal Rules of Civil
Procedure, or in the Alternative for Forum Non Conveniens” filed by
Dennis Laliberte (“Laliberte”) and Newwest Travel and Cruises Ltd.
(“NTC”) (Docket Entry 34); and “Additional Defendants’ Motion to
Dismiss Pursuant to Rule 12(b)(2) of the Federal Rules of Civil
Procedure, or in the Alternative for Forum Non Conveniens” filed by
Newwest Travel Ltd. (“NT”) and Newwest Special Projects, L.P.
(“NSP”) (collectively Laliberte, NTC, NT and NSP are referred to as
“Defendants”)
(Docket
Entry
47).
Through
the
two
motions,
Defendants seek dismissal of this action for lack of personal
jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2);
alternatively, they request dismissal of this matter pursuant to
the doctrine of forum non conveniens.
Docket Entry 47 at 1.)
(Docket Entry 34 at 1;
For the reasons that follow, personal
jurisdiction over Defendants is lacking.
Accordingly, it is
recommended that Defendants Laliberte and NTC’s Motion to Dismiss
(Docket Entry 34), and Defendants NT and NSP’s Motion to Dismiss
(Docket Entry 47) both be granted.
I.
BACKGROUND
“Plaintiff Michael T. Sloane (“Sloane”) is a citizen and
resident of Forsyth County, North Carolina.”
2.)
(Docket Entry 28 at
“Plaintiff Cruise Connections, Inc., [(“CC”)] is a North
Carolina corporation with its principal place of business located
in Winston-Salem, North Carolina. . . . [Plaintiff] Sloane is the
president and owner of [Plaintiff CC].”
Kelly
(“Kelly”)
Washington.”
is
a
(Id.)
citizen
and
(Id.)
resident
“Plaintiff Tracey
of
King
County,
“Plaintiff Susan Edwards (“Edwards”) is a
citizen and resident of Victoria, British Columbia, Canada.” (Id.)
“[Plaintiff] Cruise Connections Charter Management 1, LP (“CCCM”)
is a North Carolina limited partnership with its principal place of
business located in Winston-Salem, North Carolina.”
(Id.)
The Amended Complaint filed by Sloane, CC, Kelly, Edwards and
CCCM (collectively “Plaintiffs”) seeks a declaratory judgment and
monetary award from Defendants arising out of a failed business
relationship to provide cruise-ship accommodations during the 2010
Winter Olympic Games.
(Docket Entry 28 at 5-9, 12-13.)
According to Defendant Laliberte’s affidavit, “[he is] a
citizen
and
resident
of
Edmonton,
-2-
Alberta,
Canada
and
[is]
President of Defendant [NT].”
(Docket Entry 35, Ex. A at 1.)
Moreover:
[Defendant Laliberte has] never been to . . . North
Carolina, do[es] not maintain offices or agents or
employees in North Carolina, do[es] not own property
there, ha[s] not engaged in long-term business
transactions there, did not solicit Plaintiffs’ business
in North Carolina, did not contractually agree to [its]
governing laws . . ., never made in-person contacts in
North Carolina with any Plaintiff, and [is] not doing
business in . . . North Carolina. . . . Further, [he
has] not consented to be sued in . . . North Carolina.
(Id., Ex. A at 2.)
Plaintiffs allege that Defendant NTC is
“organized . . . under the laws of the Province of Alberta, Canada
with [its] principal place of business located in Edmonton, Alberta
Canada” and Defendant Laliberte is its President. (Docket Entry 28
at 2-3.)1
Defendant Laliberte avers that “Defendant [NT] is a Canadian
corporation formed, existing, and doing business in the Province of
Alberta, Canada.”
(Docket Entry 35, Ex. A at 2.)
He further
swears that:
4. [Defendant NSP] is a limited partnership, of
which [he is] a partner. . . . [Defendant NSP] was formed
in Alberta, Canada, on January 15, 2009, which was after
the events complained of in the Amended Complaint.
1
Defendant Laliberte avers that he is “unaware of a legal entity known as
‘Newwest Travel and Cruises, Ltd.’” (Docket Entry 35, Ex. A at 2), but the motion
filed by Defendants Laliberte and NTC describes him as the “President of NTC,
which the motion identifies as “a Canadian corporation formed, existing, and
doing business in the Province of Alberta, Canada” (Docket Entry 34 at 2).
Defendants Laliberte and NTC have made no attempt to resolve this conflict in
their brief or reply (see Docket Entries 35, 45.) As discussed below, the Court
resolves all factual disputes in Plaintiffs’ favor (see infra at 11), therefore,
the Court finds that, for current purposes, Defendant Laliberte is the President
of NTC.
-3-
5.
Neither [Defendant NT], nor [Defendant NSP],
conduct business in the state of North Carolina, own
property or other assets in North Carolina. [Defendants
NT] and [NSP] do not maintain offices or agents in North
Carolina; did not solicit the Plaintiffs’ business in
North Carolina; did not engage in significant or longterm business in the forum; did not contractually agree
to the governing laws of North Carolina; and did not make
in-person contact in North Carolina with Plaintiffs
regarding the business relationship.
(Docket Entry 48, Ex. A at 2; accord Docket Entry 35, Ex. A at 2.)
According
Integrated
to
the
Security
Amended
Unit
Complaint,
(“V2010-ISU”)
the
was
Vancouver
2010
responsible
for
providing security for the 2010 Winter Olympic and Paralympic Games
held in Vancouver and Whistler, British Columbia, from February
12–28, 2010.
(Docket Entry 28 at 3-4.)
Plaintiffs allege that
V2010-ISU planned to house security personnel on cruise ships in
Vancouver harbor and requested submission of bids for the housing
contract by May 23, 2008.
(Id. at 3.)
Plaintiffs claim that
V2010-ISU’s bidding requirements included “a letter of credit equal
to 10% of the bid[.]”
In
June
of
(Id.)
2007,
Laliberte in Louisiana
Plaintiff
Edwards
approached
Defendant
(Docket Entry 35, Ex. A at 3); Plaintiffs
Edwards and Sloane met with Defendant Laliberte regarding jointly
bidding on the V2010-ISU’s housing contract “as well as other
cruise ship contracts for accommodations during the 2010 Winter
Olympic Games” (Docket Entry 28 at 4-5).2 According to Defendant
2
Defendant Laliberte avers that Plaintiff Edwards made the approach “to
discuss bidding on the [V2010-ISU] Contract” (Docket Entry 35, Ex. A at 2), but
does not refer to any other cruise ship accommodations (see id.). As discussed
below, the Court views the facts in a light most favorable to Plaintiffs. (See
(continued...)
-4-
Laliberte, “Plaintiffs [] Kelly, [] Sloane, and [] Edwards came to
Canada to negotiate and discuss the details of the partnership at
some point during the planned business venture . . . .”
Entry 48, Ex. A at 3.)
(Docket
Allegedly, Plaintiffs Edwards and Sloane
and Defendant Laliberte agreed to work together and discussed
forming a limited partnership, “but no partnership was ever formed
in Canada or the United States.”
Plaintiffs
assert
that,
(Docket Entry 28 at 5.)
on
August
15,
2007,
Plaintiffs
Edwards, Sloane, and CC agreed with Defendants Laliberte, NT, and
NTC that Plaintiff Edwards would “manage the project in Vancouver
including negotiations with local port agents and local government
officials[,]” while Plaintiffs Sloane and CC would “provide access
to the cruise industry, to obtain contracts for cruise ships . . .
and [would] develop a reservation and logistics system for the
guests . . . .”
(Id.)
According to Plaintiffs, Defendants
“Laliberte[] and [NT and NTC’s] role in the Project was to provide
the financing from himself [sic] and another financier necessary to
bid on the [] contract as well as the other financing necessary for
the Project.”
(Id.)
Plaintiffs further state that “[Defendant]
Laliberte and [Plaintiff] Sloane retained [Plaintiff] Kelly in
October 2007 to provide assistance in acquiring cruise ships from
their
owners
.
.
.
and
to
negotiate
providers in . . . British Columbia.”
Entry 41, Ex. A at 1.)
2
(...continued)
infra at 11.)
-5-
contracts
with
service
(Id. at 6; see also Docket
In addition, Plaintiffs claim that “[Plaintiff] Sloane and
[Defendant] Laliberte made equal payments for the Project to
[Plaintiffs] Edwards and Kelly through April 2008.”
28 at 6.)
(Docket Entry
On August 8, 2007, Defendant Laliberte sent an e-mail to
Plaintiff CC stating that, “[p]ursuant to our phone call this am
[sic] confirming we will jointly pay the $10,000 fee per month due
to [Plaintiff] Edwards for the HAL 2010 project. . . . Please send
you [sic] $5000 check via fed ex payable to [Defendant NT] . . . .”
(Docket Entry 21, Ex. D at 2.)
Subsequent to that e-mail,
Plaintiff CC issued five checks each for $5,000 (see id., Ex. D at
3-7): a check dated August 10, 2007, made payable to “Newwest
Travel (Olympic Cruise)” (id., Ex. D at 3); a check dated February
12, 2008, and another dated January 24, 2008, both made payable to
“Sue Edwards (Olympic Cruise)” (id., Ex. D at 4-5); a check dated
February 8, 2008, and another dated March 17, 2008, both made
payable to “Tracey Kelly (Olympic Cruise)” (id., Ex. D at 6-7).
Plaintiffs have alleged that, “[a]t all times, [Defendant]
Laliberte represented to Plaintiffs that he had the financing
necessary for the [V2010-ISU] bid as well as the financing for the
rest of the Project[,]” and that he would “provide $5 million to
$10 million of his own money for financing.”
6.)
(Docket Entry 28 at
Allegedly, “[Defendant Laliberte] took charge of the Project
based on his representations that he had acquired the financing
.
.
.
and,
money . . . .”
was
providing
(Id. at 6-7.)
millions
of
dollars
of
his
own
Plaintiffs allege that Defendant
Laliberte agreed to pay Plaintiffs Sloane and CC a per ship fee for
-6-
their “manage[ment] of the inventory and some ground operations”
with respect to the V2010-ISU contract and a per passenger “booking
fee for the ships with private accommodations.”
(Id. at 7.)
According to Plaintiff Sloane, while Defendant Laliberte was “in
charge” of the project “[he] sent over 75 emails to [Sloane] at
[Sloane’s] office in North Carolina setting forth instructions and
discussing other issues related directly to the Winter Olympic
project.”
(Docket Entry 21 at 2 (citing id., Ex. A).)
Plaintiff Sloane further avers that he and Defendant Laliberte
“agreed that [Plaintiff CC’s] reservation team would have to
increase its size in Winston-Salem[, North Carolina,] by 5-11
employees . . .” and, “in May 2008, [Plaintiff Sloane] hired a lead
reservantionists [sic] who was fluent in French . . . who was
uniquely skilled to handle reservations from Canadians.”
Entry
21
at
3-4.)
Moreover,
Plaintiff
Sloane
(Docket
claims
that
“[Plaintiff CC’s] North Carolina based reservation system [] had to
be customized for the Winter Olympic project” and “[he] hired John
Hill [(“Hill”)] and [Hill’s company] Hil-Tec[, Inc.] in North
Carolina to make the changes . . . .”
(Id. at 4.)
More specifically, Hill swore as follows:
7. In July 2007, Michael Sloane contacted me at my
North Carolina office and requested that I work on
changes and write codes for the Reservation System for a
project he was working to place cruise ships at the 2010
Winter Olympic games.
8. Michael Sloane introduced me to Dennis Laliberte
over the telephone.
I understood Laliberte to be in
charge of the project to bring cruise ships to the 2010
Winter Olympics.
-7-
9. By the end of July 2007, Dennis Laliberte was
communicating directly with me at my North Carolina
office regarding changes I was making to the reservation
System.
10. Laliberte sent at least six emails directly to
me at my North Carolina office regarding customization to
the Reservation System as well as Power Point
presentations.
11.
At Laliberte’s request, I developed several
Power Point presentations that illustrated the major
features of how the Reservation System would work for the
2010 Winter Olympic project and how the system was
currently working for other projects.
I sent those
presentations from my North Carolina office to Laliberte
in Canada.
12.
I incurred approximately $10,000 worth of
charges in North Carolina providing technical support in
the planning of customizations to the Reservation System
for the 2010 Winter Olympic project and for the
preparation of Powerpoint presentations, for which I have
not been paid.
(Docket Entry 17, Ex. E at 2-3 (emphasis added).) Plaintiff Sloane
avers that, “[e]ven though [Defendant] Laliberte communicated
directly with Hill, [Plaintiff CC] was still responsible for Hill’s
bills.”
(Docket Entry 21 at 4.)
On April 3, 2008, Defendant Laliberte sent an e-mail to
Plaintiffs Sloane and Edwards which stated in relevant part:
Pursuant to the policy with all contractors we are
working with on the Vancouver 2010 project . . . we have
instituted penalties for any projects not completed by
agreed due dates.
All items contained herein on the attached document
Olympics 2010 Booking Engine Modifications must be
completed by May 15[,] 12:00 noon EDT.
Failure to
complete by the on [sic] agreed upon deadline will result
in penalties of $500 per 24 hour period. This penalty
will be assed [sic] to [CC] as they are the primary
contractor with Hil-Tec Inc.
-8-
(Docket Entry 21, Ex. C at 2.)3
April
2008,
[Defendant]
According to Plaintiffs, “[i]n
Laliberte
unilaterally
[Plaintiffs] Sloane and [CC] from the Project.”
excluded
(Docket Entry 28
at 7.)
Plaintiffs allege that, during a telephone call on May 6,
2008, between Plaintiffs Kelly and Edwards and Defendant and the
alleged additional financier, Plaintiffs “Edwards and Kelly learned
. . . that [Defendant] Laliberte did not have the financing in
place . . .” and he allegedly told them “to ‘find their own
financing.’”
(Docket Entry 28 at 7.)
Plaintiffs assert that, on
May 8 and 9, 2008, Defendant Laliberte advertised in Albertan and
British Columbian newspapers unsuccessfully seeking financing for
the project.
(Id. at 7-8.)4
In Plaintiffs’ view, they “could not
file a bid with V2010-ISU . . . or proceed with the other aspects
of the Project[,]” because of the lack of financing and, “[o]n May
15, 2008, [Plaintiffs] Edwards and Kelly informed [Defendant]
Laliberte that they were severing all ties with him . . . .”
(Id.
at 8.)
Plaintiffs state that, on May 17, 2008, Plaintiffs Sloane,
Kelly,
and
Edwards
agreed
to
form
a
partnership
“to
obtain
3
The Court refers to the exhibits to Plaintiff Sloane’s affidavit by the
Case Management/Electronic Case Filing (“CM/ECF”) system page numbers which
appear in the footer of the document, because the exhibits do not have other
pagination. (See Docket Entry 21, Exs. A-D.)
4
Plaintiffs claim that Defendant Laliberte’s advertisements “were illegal
under Canadian law and violated V2010-ISU regulations[,]” and, moreover, “[he]
tried to secure financing through unrealistic profit and cost projections to
potential investors.” (Docket Entry 28 at 8.)
-9-
financing and salvage their investments . . .” and, six days later,
they formed Plaintiff CCCM pursuant to North Carolina law.
(Id.)
In the Plaintiffs’ view, they “paid a significant premium for []
financing[,]” but they “secure[d] financing and filed a bid on May
23, 2008.”
(Id. at 8-9.)
They further claim that, “[o]n June 3,
2008, V2010-ISU announced that Plaintiff CCCM was the successful
bidder . . . .”
II.
(Id. at 9.)
DISCUSSION
Defendants have moved to dismiss under Federal Rule of Civil
Procedure
12(b)(2)
Conveniens.
and,
in
alternative,
(Docket Entries 34, 47.)
and Defendants have replied.
A.
the
for
Forum
Non
Plaintiffs have responded
(Docket Entries 41, 45, 50, 52.)
Applicable Legal Standard
On a Federal Rule of Civil Procedure 12(b)(2) motion to
dismiss for lack of personal jurisdiction, the plaintiff bears the
burden “to prove grounds for jurisdiction by a preponderance of the
evidence.”
Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 60 (4th
Cir. 1993).
“If the existence of jurisdiction turns on disputed
factual questions the court may resolve the challenge on the basis
of a separate evidentiary hearing, or may defer ruling pending
receipt
at
question.”
(emphasis
trial
of
evidence
relevant
to
the
jurisdictional
Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989)
added).
However,
when
a
court
examines
personal
jurisdiction “on the basis only of motion papers, supporting legal
memoranda and the relevant allegations of a complaint, the burden
on the plaintiff is simply to make a prima facie showing” of
-10-
personal jurisdiction. Id. Under such circumstances, a court must
“construe all relevant pleading allegations in the light most
favorable to the plaintiff, assume credibility, and draw the most
favorable inferences for the existence of jurisdiction.”
Id.
“[I]n order for a district court to validly assert personal
jurisdiction over a non-resident defendant, two conditions must be
satisfied.
First, the exercise of jurisdiction must be authorized
by the long-arm statute of the forum state, and, second, the
exercise of personal jurisdiction must also comport with Fourteenth
Amendment due process requirements.”
Christian Sci. Bd. of Dirs.
of the First Church of Christ, Scientist v. Nolan, 259 F.3d 209,
215 (4th Cir. 2001).
“[I]t is apparent that the [North Carolina]
General Assembly intended to make available to the North Carolina
courts the full jurisdictional powers permissible under federal due
process.”
Dillon v. Numismatic Funding Corp., 291 N.C. 674, 676,
231 S.E.2d 629, 630 (1977)).
“Thus, the dual jurisdictional
requirements collapse into a single inquiry as to whether the
defendant has such minimal contacts with the forum state that
maintenance of the suit does not offend traditional notions of fair
play and substantial justice.”
Christian Sci., 259 F.3d at 215
(internal quotation marks omitted) (quoting Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945)).
A court may have personal jurisdiction over a defendant
through either general or specific jurisdiction.
Helicopteros
Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 nn.8-9
(1984)).
“[I]f the defendant’s contacts with the State are not
-11-
also the basis for suit, then jurisdiction over the defendant must
arise from the defendant’s general, more persistent, but unrelated
contacts with the State.
To establish general jurisdiction over
the defendant, the defendant’s activities in the State must have
been continuous and systematic, a more demanding standard than is
necessary for establishing specific jurisdiction.”
ALS Scan, Inc.
v. Digital Serv. Consultants, Inc., 293 F.3d 707, 712 (4th Cir.
2002) (internal quotation marks omitted).
Specific jurisdiction
exists when the “suit aris[es] out of or is related to the
defendant’s contacts with the forum . . . .”
U.S.
at
414
n.8.
To
determine
the
Helicopteros, 466
existence
of
specific
jurisdiction, a court considers: “(1) the extent to which the
defendant
‘purposefully
availed’
itself
of
the
privilege
of
conducting activities in the State; (2) whether the plaintiffs’
claims arise out of those activities directed at the State; and (3)
whether
the
exercise
of
personal
constitutionally ‘reasonable.’”
jurisdiction
would
be
ALS Scan, 293 F.3d at 712.
As to the first prong of this inquiry, the United States Court
of Appeals for the Fourth Circuit has identified the following
“nonexclusive factors” that courts have considered “to resolve
whether a defendant has engaged in [] purposeful availment” in the
business context:
. whether the defendant maintains offices or agents in
the forum state, see McGee v. Int’l Life Ins. Co., 355
U.S. 220, 221, 78 S. Ct. 199, 2 L. Ed. 2d 223 (1957);
. whether the defendant owns property in the forum state,
see Base Metal Trading, Ltd. v. OJSC, 283 F.3d 208, 213
(4th Cir. 2002);
-12-
. whether the defendant reached into the forum state to
solicit or initiate business, see McGee, 355 U.S. at 221;
Burger King [Corp. v. Rudzewicz], 471 U.S. [462,] 475-76
[(1985)];
. whether the defendant deliberately engaged in
significant or long-term business activities in the forum
state, see Burger King, 471 U.S. at 475-76, 481;
. whether the parties contractually agreed that the law
of the forum state would govern disputes, see Burger
King, 471 U.S. at 481-82;
. whether the defendant made in-person contact with the
resident of the forum in the forum state regarding the
business relationship, see Hirschkop & Grad, P.C. v.
Robinson, 757 F.2d 1499, 1503 (4th Cir 1985);
. the nature, quality and extent of the parties’
communications about the business being transacted, see
English & Smith [v. Metzger], 901 F.2d [36,] 39 [(4th
Cir. 1990)]; and
. whether the performance of contractual duties was to
occur within the forum, see Peanut Corp. of Am. v.
Hollywood Brands, Inc., 696 F.2d 311, 314 (4th Cir.
1982).
Consulting Eng’rs Corp. v. Geometric Ltd., 561 F.3d 273, 278 (4th
Cir. 2009) (emphasis in original except in bracket). “If, and only
if, [a court] find[s] that the plaintiff has satisfied this first
prong of the test for specific jurisdiction need [the court] move
on to a consideration of prongs two and three.”
Id.
B. Analysis of Defendants Laliberte’s and NTC’s Motion
Defendants
jurisdiction
nor
Laliberte
specific
(Docket Entry 35 at 5-13.)
and
NTC
argue
jurisdiction
that
exists
neither
in
this
general
Court.
Plaintiffs respond that their contacts
-13-
with North Carolina sufficiently establish specific jurisdiction.
(See Docket Entry 41 at 6-7.)5
According to Defendants Laliberte and NTC: (1) “they do not
have
sufficient
minimum
contacts
with
[North
Carolina][,]”
“[b]ecause [they] did not purposefully avail themselves of [its]
benefits” (Docket Entry 35 at 6-9); (2) Plaintiffs’ claims did not
“ar[ise]
out
of
[Defendants
Laliberte
and
NTC’s]
activities
directed to North Carolina” (id. at 9); and (3) the exercise of
personal jurisdiction over them “would be unreasonable and offend
traditional notions of fair play and substantial justice” (id. at
9-13).
Plaintiffs answer that Defendants Laliberte and NTC had
“contacts with North Carolina directly related to the lawsuit”
(Docket Entry 41 at 10) and “it is not unreasonable for [Defendant
Laliberte and NTC] to defend a case in North Carolina related to
the venture” (id. at 12).
1.
Purposeful Availment
Defendants Laliberte and NTC argue that Plaintiffs have failed
to establish purposeful availment because: (a) many of the relevant
5
Plaintiffs’ titled their personal jurisdiction argument, “This Court has
Personal Jurisdiction over Defendants as a result of Defendants’ Contacts with
North Carolina,” and their argument related to purposeful availment appears in
a subsection titled, “Defendants had Continuous and Purposeful Contacts with
North Carolina that Relate Directly to the Claims at Issue in this Lawsuit.”
(Docket Entry 41 at 5 (normal capitalization applied).) Plaintiffs do not make
general jurisdiction arguments (see id. at 6-11), rather their arguments focus
on specific jurisdiction (see, e.g., id. at 6 (“where the claim arises or is
related to the defendant’s contacts (specific jurisdiction) the contact required
by due process need not be systematic or continuous to support jurisdiction”),
7 (“a defendant still has sufficient minimum contacts to support specific
jurisdiction where the defendant enters into a contract with a resident of the
forum . . .”).
-14-
factors counsel against such a finding (Docket Entry 35 at 7); (b)
Plaintiff Edwards initiated the contact with Defendant Laliberte
(Docket Entry 45 at 3-4); (c) the agreement with Plaintiffs Sloane
and CC and their performance of obligations in North Carolina does
not suffice (Docket Entry 35 at 7; Docket Entry 45 at 2); and (d)
Defendant Laliberte’s electronic communications fall short of
purposeful availment (Docket Entry 35 at 7-8; Docket Entry 45 at
6).
a.
Absence of Relevant Factors
Defendants Laliberte and NTC contend that the “majority of
personal jurisdiction factors set forth in Consulting Eng’rs. Corp.
. . . weigh in [Defendants Laliberte and NTC’s] favor.”
Entry 45 at 6; see also Docket Entry 35 at 6-7.)
(Docket
The Court agrees
that nearly all of the Consulting Eng’rs factors (see supra at 1213) do not support a purposeful availment finding.
Defendant
Laliberte has never traveled to North Carolina and he does not
maintain offices or agents in the state.
at 2.)
(Docket Entry 35, Ex. A
He owns no property in North Carolina and has not solicited
or initiated business in the forum.
(Id.; Docket Entry 28 at 5.)
He has “not engaged in long-term business transactions[,]” in North
Carolina and did not agree with Plaintiffs that North Carolina law
would govern their disputes.
(Docket Entry 35, Ex. A at 2.)
He
did not make any “in person contacts in North Carolina with any
Plaintiff” and he has not “consented to be sued” in this state.
(Id.)
Additionally, he conducted his “activities . . . from [his]
office in Edmonton, Alberta, Canada” (id., Ex. A at 3), and the
-15-
project called for the provision of accommodations in British
Columbia, Canada (Docket Entry 28 at 4-5).6
b.
Defendants
Initiation of Contact
Laliberte
and
NTC
state
that
“great
weight”
attaches to the factor of “who initiated the contact” and assert
that Plaintiff Edwards initiated contact with Defendant Laliberte.
(Docket Entry 45 at 3 (internal quotation marks omitted) (quoting
Worldwide Ins. Network, Inc. v. Trustway Ins. Agencies, LLC, No.
1:04CV00906, 2006 U.S. Dist. LEXIS 7234, at *16 (M.D.N.C. Feb. 6,
2006) (unpublished) (Tilley, C.J.); and citing Johansson Corp. v.
Bowness Constr. Co., 304 F. Supp. 2d 701, 705 (D. Md. 2004)).)
Indeed, this Court (per then-Chief Judge N. Carlton Tilley, Jr.)
has recognized that “the Fourth Circuit has given great weight to
the question of who initiated the contact between the parties.”
Worldwide Ins., 2006 U.S. Dist. LEXIS 7234, at *14 (citing, inter
alia, Diamond Healthcare of Ohio, Inc. v. Humility of Mary Health
Partners, 229 F.3d 448, 452 (4th Cir. 2000)).
See also Johansson,
304 F. Supp. 2d at 705 (“One of the most important factors is
whether the defendant initiated the business relationship in some
way.”)
(internal
Plaintiff
Edwards
quotation
initiated
marks
the
Defendant Laliberte in Louisiana.
6
omitted)).
business
In
this
relationship
case,
with
(Docket Entry 35, Ex. A at 3.)
To the extent the Court relies on evidence from Defendants as to these
points, it has done so because Plaintiffs failed to dispute these facts. (See
Docket Entry 41 at 5-11.)
-16-
Therefore,
this
significant
consideration
does
not
support
a
finding of purposeful availment.
c.
Defendants
Contract and Plaintiffs’ Performance
Laliberte
and
NTC
argue
that
“‘[p]ersonal
jurisdiction is not conferred by merely signing a contract with a
North Carolina resident . . . .’” (Docket Entry 35 at 7 (quoting
Boon Partners v. Advanced Fin. Concepts, No. 5:95-CV-427-BO, 1998
U.S. Dist. LEXIS 7812 (E.D.N.C. Mar. 30, 1998) (unpublished)).)
Plaintiffs respond that, “[a]s in English & Smith, the present
lawsuit
relates
directly
to
a
failed
business
venture
that
contemplated performance by [Plaintiffs Sloane and CC] in the forum
state
and
involved
significant
communication
and
an
ongoing
relationship between [Plaintiffs Sloane and CC] and [D]efendants.”
(Docket Entry 41 at 9.)
An agreement by an out-of-state defendant with a plaintiff
does not by itself establish that the defendant purposefully
availed itself of doing business in the forum.
Burger King, 471
U.S. at 478 (“If the question is whether an individual’s contract
with
an
out-of-state
party
alone
can
automatically
establish
sufficient minimum contacts in the other party’s home forum, we
believe the answer clearly is that it cannot.” (emphasis in
original)).
However, the Fourth Circuit has held that an out-of-
state defendant could become subject to personal jurisdiction
within the forum state as a result of transacting business with the
plaintiff.
See English & Smith, 901 F.2d at 39-40.
-17-
In that case, the defendant, a California attorney, associated
with a Virginia law firm on a case and, after the case settled, a
dispute arose as to whether the plaintiff Virginia law firm should
receive payment. Id. at 37-38. The district court entered summary
judgment in favor of the plaintiff and the defendant appealed based
on lack of personal jurisdiction.
Id. at 38.
The Fourth Circuit
affirmed and observed that the plaintiff’s cause of action arose
directly from the defendant’s transaction of business in Virginia
which included: initiating contact with the plaintiff; “knowing
that [the plaintiff] was a Virginia lawyer who likely would do the
requested work in Virginia[;]” the last act to execute the contract
occurred in Virginia; “[the plaintiff] performed all his duties
under the contract in Virginia[;]” and “the parties exchanged
numerous telephone calls and written communications.”
Id.
This case, however, materially differs from English & Smith
because in that case: (1) the defendant initiated contact with the
plaintiff; (2) the contract was finally executed in the forum; and
(3) “all” of the plaintiff’s duties occurred in the forum. See id.
Plaintiffs’ argument that Plaintiffs Sloane and CC’s performance
occurred only within North Carolina ignores the activities of
Plaintiffs Edwards and Kelly who directed their activities to
Canada.
(Docket Entry 28 at 5-6; Docket Entry 41, Ex. A at 1-2.)
Plaintiff
Kelly
was
“negotiat[ing]
contracts”
with
Canadian
entities as Plaintiff Sloane’s and Defendant Laliberte’s employee
(Docket Entry 28 at 6), and given that Plaintiff Sloane also paid
Plaintiff Edwards, along with Defendant Laliberte (id.; Docket
-18-
Entry
21,
activities
Ex.
D
within
at
2-7),
Canada
Plaintiff
as
Edwards
Plaintiff
Sloane’s
thus
conducted
and
Defendant
Laliberte’s employee.
Defendants
Laliberte
and
NTC
argue
that
Plaintiffs’
“unilateral activities” do not support personal jurisdiction.
(Docket Entry 45 at 2 (citing Worldwide Ins., 2006 U.S. Dist. LEXIS
7234, at *13-17).) More specifically, Defendants Laliberte and NTC
claim that Plaintiffs Sloane and CC’s location “was irrelevant” to
the parties’ arrangement (Docket Entry 35 at 8), and, as a result,
their North Carolina actions are “not relevant” (Docket Entry 45 at
2).
Moreover, Defendants Laliberte and NTC contend that the Court
should “focus on where the Defendants performed (or were to
perform) their obligations” and that Plaintiffs “directed their
activities” to Canada.
(Docket Entry 45 at 3 (citation omitted).)
Plaintiffs respond that:
[Defendant] Laliberte’s claim that he did not “consider
[Plaintiffs Sloane and CC’s] location to be at all
relevant” completely disregards the fact that [Plaintiffs
Sloane
and
CC]
were
essential
to
the
venture
notwithstanding their location. It is no different than
in English & Smith, where the Virginia attorney was hired
because he was an expert in forfeiture and his location
in Virginia was irrelevant. However, unlike in English
& Smith, where the Virginia lawyer’s final performance
was expected to occur in California, defendants here
fully intended to use the North Carolina plaintiff’s
reservation system and reservation staff in North
-19-
Carolina. Defendant Laliberte and Plaintiff Sloane even
agreed that [Plaintiffs Sloane and CC] needed to expand
their reservation staff . . . .
(Docket Entry 41 at 9-10 (italics in original).)7
The United States Supreme Court has recognized that “‘[t]he
unilateral activity of those who claim some relationship with a
nonresident defendant cannot satisfy the requirement of contact
with the forum State. . . . [I]t 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.’”
Burger
King, 471 U.S. at 474-75 (quoting Hanson v. Denckla, 357 U.S. 235,
253 (1958)).
An agreement coupled with a plaintiff’s performance
of some contractual obligations in the forum do not show sufficient
contacts by the defendant with the forum.
See United Advertising
Agency, Inc. v. Robb, 391 F. Supp. 626, 631 (M.D.N.C. 1975)
(Gordon, C.J.); accord Cost Mgmt. Performance Grp., LLC v. Sandy
Spring Bank, No. 3:09CV340-RJC-DSC, 2009 U.S. Dist. LEXIS 93380, at
7
Elsewhere in their Response, Plaintiffs state that “[Plaintiff] Sloane
interviewed potential reservationists in North Carolina and eventually hired a
lead reservationist who spoke French” (Docket Entry 41 at 11 (citations
omitted)), and argue that such fact shows that Defendants Laliberte and NTC had
“contacts with North Carolina” (id. at 10). In the Response to Defendants NT and
NSP’s motion to dismiss, Plaintiffs argue in a conclusory manner that “many of
[their] activities in North Carolina, as set forth above, were done in
collaboration with and/or at the direct instruction of defendants, through the
person of Dennis Laliberte.” (Docket Entry 50 at 9.) Plaintiffs appear to refer
to various e-mails that Defendant Laliberte sent to Plaintiff Sloane or Hil-Tec,
charges incurred by Hil-Tec, and Plaintiff Sloane’s hiring of a new employee.
(See id.) Plaintiffs’ argument lacks merit, because Plaintiffs fail to explain
how said actions demonstrate a “collaboration” between Defendant Laliberte and
Plaintiffs Sloane and CC to manage the passenger inventory or how such conduct
amounted to direction by Defendant Laliberte on managing the passenger inventory
(see id.).
-20-
*10-12 (W.D.N.C. Sept. 9, 2009) (unpublished), recommendation
adopted, 2009 U.S. Dist. LEXIS 93376 (W.D.N.C. Oct. 5, 2009).
In addressing this consideration, Defendants Laliberte and NTC
devote a great deal of attention to the decision in Worldwide Ins.
(see Docket Entry 45 at 2-3).
In that case, the North Carolina
plaintiff, a provider of “insurance and other financial products
and services to independent insurance agencies[,]” entered into an
agreement
with
the
Georgia
corporate
defendant
through
its
president, the other defendant, whereby the corporate defendant
would
serve
Worldwide
as
Ins.,
the
plaintiff’s
managing
2006
U.S.
LEXIS
Dist.
agent
7234,
at
in
Georgia.
*2-3.
The
“[d]efendants [were] both located in Georgia and conduct[ed] their
business in Georgia[,]” and “[the plaintiff] contacted them in
Georgia[.]”
Id. at *17 & 20.
During the parties’ negotiations,
the plaintiff’s representatives visited Georgia, the individual
defendant
visited
North
Carolina,
negotiations occurred by telephone.
and
the
parties’
Id. at *3.
remaining
“The [parties’]
Agreement . . . required [the plaintiff] to perform certain
services for [the corporate defendant] including: ‘accounting
services, preparation and mailing of a magazine and promotional
materials,
negotiations
with
carriers
and
other
providers,
preparation and mailing of marketing videos and recruiting kits,
and the planning, execution, administration, and payment for sales
and training meetings.’”
Id. at *4.
The Court observed that, “although [the plaintiff] performed
some of its administrative functions under the Agreement at its
-21-
offices in North Carolina, all of the work to be performed by
[d]efendants . . . was to take place . . . [in] Georgia.”
*16-17.
Id. at
The corporate defendant’s employees attended training
meetings in North Carolina and other locations at least once a
year, and the individual defendant visited the plaintiff’s offices
eight times.
Id. at *4.
Approximately, three and a half years
after executing the agreement with the plaintiff, the defendants
sought to sell the line of business to another company.
Id.
The
plaintiff sued and the defendants filed a motion to dismiss for
lack
of
personal
jurisdiction.
Id.
at
*4-6.
Under
these
circumstances, this Court, per then-Chief Judge Tilley, held that
the
defendants’
contact
with
North
Carolina
“was
hardly
so
purposeful that litigation in North Carolina could have been
reasonably foreseen[,]” id. at *17, and granted the defendant’s
motion to dismiss for lack of personal jurisdiction, id. at *20.
In this case, Defendant Laliberte’s performance in furtherance
of the agreement occurred in Canada.
at 3.)
(See Docket Entry 35, Ex. A
Moreover, Plaintiffs Sloane and CC, through its employees,
Plaintiffs Edwards and Kelly, directed activities into Canada.
(See Docket Entry 28 at 5-6.)
Furthermore, Plaintiffs Sloane and
CC’s North Carolina operations furthered the objective of providing
accommodations in Canada.
(Docket Entry 21 at 3.)
In light of
Worldwide Ins., the Court agrees that Plaintiffs Sloane and CC’s
partial performance of work within North Carolina does not warrant
the exercise of personal jurisdiction.
-22-
As a final matter, the assertion that personal jurisdiction
exists because Plaintiffs Sloane and CC were “essential” to the
contract finds no support in English & Smith.
Instead, in said
case, the Fourth Circuit observed that the defendant knew the
plaintiff would work in the forum and said knowledge satisfied
purposeful availment in combination with other factors, see English
& Smith, 901 F.2d at 39, which, as explained above, are absent here
(see supra at 18).
d.
Electronic Communications
As evidence that Defendants Laliberte and NTC “had contacts
with
North
Carolina[,]”
Plaintiffs
observe
that
“[Defendant]
Laliberte sent over 75 emails to [Plaintiff] Sloane in North
Carolina setting forth instructions and discussing other issues
related to the Winter Olympic project.”
(Docket Entry 41 at 10.)
Defendants Laliberte and NTC assert that “the various e-mail
communications between Plaintiffs and Defendants, some of which
were merely forwarded messages sent to Plaintiffs by Defendant
Laliberte are not sufficient to show that Defendants established
the
minimum
contacts[.]”
(Docket
Entry
omitted); see also Docket Entry 45 at 6.)
the
quantity
[of
e-mails]
is
notable,
35
at
7
(citations
In other words, “even if
the
quality
of
those
communications often is not.” (Docket Entry 35 at 8 (citing Docket
Entry 21, Ex. D).)
-23-
The Fourth Circuit has recognized that: “[T]he mere fact that
emails, telephone calls, and faxes were employed does not, of
itself, alter the minimum contacts analysis.
The analysis must
focus on the nature, quality, and quantity of the contacts, as well
as their relation to the forum state.” Consulting Eng’rs, 561 F.3d
at 279 n.5 (emphasis added).
This Court similarly has declined to
find that a defendant’s electronic communications sent into the
forum generally establishes purposeful availment.
See WLC, LLC v.
The Learning Co., 454 F. Supp. 2d 426, 436-37 (M.D.N.C. 2006)
(Dixon, M.J.) (“Plaintiff notes that the parties exchanged e-mails
and telephone calls in furtherance of the consulting agreement and
that some of those e-mails and telephone calls were made from
Defendants to Plaintiff in North Carolina.
Courts have held,
however, that an exchange of communications between two parties,
one of whom is located in the forum state, in furtherance of a
contract, will not generally constitute purposeful contact with the
forum state for purposes of jurisdiction.” (citations omitted)),
recommendation adopted, id. at 427 (Osteen, Sr., J.).
The Court observes that, over a one-year period, Defendant
Laliberte exchanged a number of e-mails with Plaintiffs.
Docket Entries 21-3, 21-4, 21-5, 21-6, 21-7, 21-8).)8
(See
In only five
of these e-mails, did Defendant Laliberte forward information
8
For purposes of clarity the Court refers to Exhibit A to Docket Entry 21
by the CM/ECF system docket number and page numbers incorporated in the footer
of this exhibit, because the exhibit lacks its own independent page numbers and,
due to its size, required division into several docket entries (see Docket
Entries 21-3, 21-4, 21-5, 21-6, 21-7, 21-8).
-24-
without any additional commentary.
(See Docket Entry 21-2 a 2-3,
9-18, 30; Docket Entry 21-5 at 1.)
Among the remaining e-mails,
some relate to activities in North Carolina (see, e.g., Docket
Entry 21-3 at 17 (discussing partnership agreement); Docket Entry
21-7 at 16 (commenting on Plaintiff Sloane’s ability to fund
obligations)), but others address events in other locales (see,
e.g., Docket Entry 21-2 at 24-28 (discussing employment agreement
with Plaintiff Kelly); Docket Entry 21-3 at 3 (discussing Canadian
trust account and payment for Plaintiffs Edwards and Kelly); Docket
Entry 21-6 at 31 (discussing flight arrival for Plaintiff Sloane)).
Among these e-mails, Plaintiffs have not cited any particular email in which Defendant Laliberte “instruct[ed]” Plaintiffs on how
they would perform their duties related to solely North Carolina
activities.
(See Docket Entry 41 at 10-11.)
However, examining
the facts in a light most favorable to Plaintiffs, Combs, 886 F.2d
at 676, the Court finds that some of the e-mails have a connection
with North Carolina and, thus, provide some support for the
exercise of personal jurisdiction in North Carolina.
Plaintiffs refer to specific e-mail contacts by Defendant
Laliberte to further strengthen the weight that the Court should
afford to his electronic communications with the forum.
In this
regard, Plaintiffs claim that “[Defendant] Laliberte informed
[Plaintiffs Sloane and CC] that he was going to assess a $500/day
penalty against them if they did not finish certain projects
assigned to them on time” (Docket Entry 41 at 10 (citing Docket
Entry 21 at 4-5; id., Ex. C)), and such activity constitutes
-25-
further evidence of Defendants Laliberte and NTC’s contacts with
the forum (id.).
In the e-mail in question, Defendant Laliberte
warned that he would assess daily penalties for missed “agreed upon
deadlines” in connection with the “Booking Engine Modifications.”
(Docket Entry 21, Ex. C at 2.)
According to Plaintiffs, additional evidence of Defendant
Laliberte’s contacts with North Carolina exists in that:
[Defendant] Laliberte communicated directly with the
North Carolina plaintiffs’ vendor, Hil-Tec, Inc. in order
to implement changes he wanted made to [Plaintiff CC’s]
reservation system.
Hil-Tec incurred over $10,000 in charges related
[Plaintiff CC’s] reservation system as a result
[Defendant] Laliberte’s requests. [Plaintiff CC]
responsible for the charges incurred by Hil-Tec
[Defendant] Laliberte’s request.
to
of
was
at
(Docket Entry 41 at 10 (bullet points and citations omitted).)
Defendants Laliberte and NTC argue that the Court should not
consider the contacts with Hil-Tec, because “when deciding the
existence . . . of specific jurisdiction, courts will only look to
the contacts between the parties . . . .”
(Docket Entry 45 at 3
(citing CEM Corp. v. Personal Chemistry, AB, 55 Fed. Appx. 621,
624-25 n.2 (4th Cir. 2003)).)
In the case cited by Defendants Laliberte and NTC, the Fourth
Circuit stated that “activities . . . [which] have nothing to do
with the dispute at issue in this case . . . are irrelevant in any
consideration of specific personal jurisdiction.”
CEM Corp., 55
Fed. Appx. at 624. However, the Fourth Circuit did not reject nonparty contacts connected to the “dispute at issue.”
-26-
See id.
Nevertheless, one court in the Fourth Circuit has recognized that
“telephonic and internet communication with consultants chosen by
Plaintiff after the contract was formed do not rise to the level of
purposeful activity to support specific jurisdiction.”
Cost Mgmt.
Performance Grp., 2009 U.S. Dist. LEXIS 93380, at *12 (citing Eagle
Paper Int’l, Inc. v. Expolink, Ltd., No. 2:07cv160, 2008 U.S. Dist.
LEXIS 4003 (E.D. Va. Jan. 17, 2008) (unpublished)).
Plaintiff Sloane hired Hil-Tec, but Hill and Hil-Tec decided
to accept input from Defendant Laliberte even though he had not
engaged them for services; moreover, although Hill purportedly
accepted Defendant Laliberte’s input because Plaintiff Sloane
“introduced” Defendant Laliberte over the telephone, Plaintiffs
fail to identify any agreement between Defendant Laliberte and HilTec.
(See Docket Entry 17, Ex. E at 1-3; Docket Entry 21 at 1-5.)
Furthermore, Hil-Tec’s decision to charge Plaintiffs Sloane and CC
for revisions based on Defendant Laliberte’s comments does not
alter Defendant Laliberte’s relationship with Hil-Tec.
Thus,
Defendant Laliberte’s electronic communications with Hil-Tec do not
amount to purposeful availment in this case.
Finally,
Plaintiffs
indicate
that
“[Defendant]
Laliberte
required [Plaintiffs Sloane and CC] to pay $10,000/month for
employees hired to assist the Winter Olympic project” and said
requirement constitutes another contact by Defendants Laliberte and
NTC with North Carolina.
(Docket Entry 41 at 10-11.)
Plaintiffs
fail to acknowledge that, as discussed above, Plaintiffs Edwards
and Kelly’s employment duties were directed at Canada.
-27-
Therefore,
the Court finds Defendant Laliberte’s August 8, 2007, e-mail
request that Plaintiff Sloane contribute to employee salaries
insufficient to establish purposeful availment.
2.
Summary
In light of the foregoing considerations, an insufficient
basis exists to find that Defendants Laliberte and NTC purposely
availed themselves of the forum.
The relevant facts include: (1)
Defendants Laliberte and NTC are not located in North Carolina and
neither Defendant Laliberte nor any agent of Defendant NTC traveled
to North Carolina; (2) Plaintiff Edwards initiated the contact with
Defendant Laliberte in Louisiana; (3) the parties did not reach an
agreement in North Carolina; (4) the parties’ agreement concerned
the provision of accommodations in Canada; (5) Plaintiffs Sloane
and CC partially performed their obligations in North Carolina, but
paid
other
individuals
Plaintiffs
Edwards
Carolina,
directed
and
to
conduct
Kelly,
their
both
activities
activities
located
to
in
Canada;
outside
of
Canada;
(7)
(6)
North
Defendant
Laliberte and NTC performed their obligations in Canada; and (8)
Defendant Laliberte sent e-mails to Plaintiffs Sloane and CC in
North Carolina, but not of such a character as to establish
purposeful availment.
In light of these facts, virtually all of the factors cited in
Consulting Eng’rs (see supra at 12-13) weigh against a finding of
purposeful availment. Moreover, in Worldwide Ins., the defendants’
contacts with North Carolina were much more extensive than the
contacts Defendants Laliberte and NTC had with the forum in that
-28-
the defendants in Worldwide Ins. made in-person visits to this
state over a much longer period of time; nonetheless, this Court
(per then-Chief Judge Tilley) found purposeful availment lacking.
Because Plaintiffs failed to show that Defendants Laliberte
and
NTC
purposefully
availed
themselves
of
the
privilege
of
conducting business in North Carolina, the Court need proceed no
further.
See Consulting Eng’rs, 561 F.3d at 278.
In sum,
Plaintiffs have not made “a prima facie showing” of personal
jurisdiction, Combs, 886 F.2d at 676.
Thus, Defendants Laliberte
and NTC’s motion to dismiss for lack of personal jurisdiction
should be granted, without regard to the alternative issue of forum
non conveniens.
C.
Analysis of Defendants NT and NSP’s Motion to Dismiss
Defendants NT and NSP request dismissal of this action for
lack of personal jurisdiction, or, alternatively, pursuant to the
doctrine of forum non conveniens.
(Docket Entry 47 at 1.)
The
parties’ briefs are substantially similar to the briefs filed with
respect
to
Entries
48,
particular,
the
50,
previously-discussed
52;
Plaintiffs
with
Docket
contend
Entries
that
9
motion.
(Compare
35,
Defendants
41,
NT
Docket
45.)9
and
In
NSP’s
In the Response to Defendants NT and NSP’s motion to dismiss, Plaintiffs
claim that Worldwide Ins. is distinguishable on its facts, because the
plaintiff’s activities in the forum amounted to “administrative functions” and
that, “[b]y contrast, the activities of [P]laintiffs . . . formed the very
foundation of the Winter Olympic project.”
(Docket Entry 50 at 10.)
This
distinction lacks significance in that the “administrative functions” as
described in Worldwide Ins., see Worldwide Ins., 2006 U.S. Dist. LEXIS 7234, at
*4, are not materially distinguishable from Plaintiffs Sloane and CC’s
“manage[ment] [of] passenger inventory” (see Docket Entry 21 at 3).
-29-
contacts with North Carolina are sufficient to establish specific
jurisdiction.
(See Docket Entry 50 at 3-11.)
Moreover, Plaintiffs’ purposeful availment arguments are based
on the same conduct by Defendant Laliberte discussed in the
preceding subsection.
(See id.)
Accordingly, for the reasons
previously discussed (see supra at 14-29), Plaintiffs have failed
to show that Defendants NT and NSP purposely availed themselves of
the forum.
In
addition,
Defendants
NT
and
NSP
argue
that,
“since
[Defendant NSP] was not formed until after the events complained of
in the Amended Complaint, any contacts that occurred between
Defendant Laliberte and Plaintiffs prior to that time could only
have been made by [Defendant] Laliberte individually or in his
capacity of President of [Defendant NT].”
(Docket Entry 48 at 3.)
Plaintiffs argue that:
[E]ven if [the assertion that Defendant NSP was created
subsequent to the occurrence of the allegations in the
Amended Complaint] is true, [Defendants NT and NSP]
ignore the fact that [Defendant] Laliberte, a partner and
agent of [Defendant NSP] did indeed have significant
contacts with Plaintiffs, including contacts in North
Carolina.
As a result of these contacts, [Defendant
NSP], through its agent [Defendant] Laliberte, in turn
used [P]laintiffs’ efforts, expertise, and capital
investments to obtain an agreement to provide cruise
ships for the Vancouver Olympics, while improperly
failing to compensate [P]laintiffs.
(Docket Entry 50 at 11 n.4.)
Plaintiffs have not identified any
purposeful availment by Defendant Laliberte after the formation of
Defendant NSP on January 15, 2009, and they have not identified any
activity by Defendant NSP in North Carolina after its formation.
-30-
(See Docket Entry 50 at 1-11.)
Nor have Plaintiffs cited any
authority for the proposition that a partnership would become
subject to personal jurisdiction in a forum based upon actions
taken by a partner in that entity prior to the formation of the
partnership.
(See Docket Entry 50 at 11 n.4.)
Under these circumstances, Plaintiffs have failed to show that
Defendants NT and NSP purposefully availed themselves of the
privilege of conducting business in North Carolina.
As a result,
the Court need not address the second and third prongs of the
specific jurisdiction test, see Consulting Eng’rs, 561 F.3d t 278.
Defendants NT and NSP’s motion to dismiss for lack of personal
jurisdiction should be granted, irrespective of their arguments
regarding the doctrine of forum non conveniens.
III.
CONCLUSION
Plaintiffs have failed to make “a prima facie showing” of
personal jurisdiction over Defendants, Combs, 886 F.2d at 676.
Therefore, Defendants’ motions to dismiss for lack of personal
jurisdiction should both be granted.
IT
IS
THEREFORE
RECOMMENDED
that
the
Motion
to
Dismiss
Pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure,
or in the Alternative for Forum Non Conveniens (Docket Entry 34)
filed by Defendants Laliberte and NTC be GRANTED on grounds of lack
of personal jurisdiction and DENIED AS MOOT as to the doctrine of
forum non conveniens.
IT IS FURTHER RECOMMENDED that the Motion to Dismiss Pursuant
to Rule 12(b)(2) of the Federal Rules of Civil Procedure, or in the
-31-
Alternative for Forum Non Conveniens (Docket Entry 47) filed by
Defendants
NT
and
NSP
be
GRANTED
on
grounds
of
personal
jurisdiction and DENIED AS MOOT as to the doctrine of forum non
conveniens.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
July 19, 2011
-32-
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