DAWKINS v. MALVICH

Filing 19

MEMORANDUM OPINION AND ORDER signed by JUDGE WILLIAM L. OSTEEN, JR on 06/04/2018. The Defendant's Motion to Dismiss 16 is GRANTED and this case is DISMISSED WITHOUT PREJUDICE. A judgment in accordance with this Memorandum Opinion and Order will be entered contemporaneously herewith. (Coyne, Michelle)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
BRENDA LEE DAWKINS,
Plaintiff,
v.
JAY MILOJEVICH, KEN EMILIO,1
and GOSPEL RESCUE MISSION,
Defendants.

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1:16CV1320

MEMORANDUM OPINION AND ORDER
Osteen, Jr., District Judge
Presently before this court is a Motion to Dismiss filed by
Defendants Jay Milojevich, Ken Emilio, and Gospel Rescue Mission
(“Defendants”). (Doc. 16.) Defendants have filed a brief in
support of their motion. (Doc. 17.) Plaintiff Brenda Lee Dawkins
(“Plaintiff”), proceeding pro se, was issued a Roseboro Letter
advising her of her right to respond. (Doc. 18.) Plaintiff has
not responded, the time to respond has run, and the matter is
now ripe for resolution. For the reasons stated herein, this
court will grant Defendants’ Motion to Dismiss.

The case caption is hereby amended to reflect the correct
name of Defendant Ken Emilio, (Defs.’ Br. in Supp. of Mot. to
Dismiss (“Defs.’ Br.”) (Doc. 17) at 1).
1

I.

FACTUAL BACKGROUND
The facts underlying this dispute, recited in the light

most favorable to Plaintiff, are as follows. On November 12,
2014, Oregon law enforcement officers received information that
the car of a bank robbery suspect from Washington State was
located near the Gospel Rescue Mission (“the Mission”) in Grants
Pass, Oregon.2 (Amended Complaint (“Am. Compl.”) (Doc. 12) at 1.)
Law enforcement contacted Defendant Jay Milojevich3 who informed
law enforcement that Plaintiff fit the description of the
suspect and was staying at the Mission.4 (Id. at 1-2.) Law
enforcement approached Plaintiff in the “private women’s laundry

Defendants assert, and Plaintiff does not contest, that
the Mission has its principal place of business in Oregon and
owns no property outside of the state. (Defs.’ Br., Aff. of Ken
Emilio (Doc. 17-1) ¶¶ 3-4.) Defendants also assert, and
Plaintiff does not contest, that the Mission is not registered
in North Carolina, has never applied to be registered in North
Carolina, provides no services within or for the state of North
Carolina, and has no officers, agents, or employees who reside
in North Carolina. (Id. ¶ 6.)
2

Defendants assert, and Plaintiff does not contest, that
Defendant Jay Milojevich has never lived in or traveled to North
Carolina. (Defs.’ Br., Aff. of Ken Emilio (Doc. 17-1) ¶ 9.)
3

The only factual allegation in the Amended Complaint as to
Defendant Ken Emilio is that he “is the administrator that
oversees the duties of Defendant Jay Milojevich.” (Am. Compl.
(Doc. 12) at 3.) Defendants assert, and Plaintiff does not
contest, that Defendant Ken Emilio resides in Oregon and has
never lived in North Carolina. (Defs.’ Br., Aff. of Ken Emilio
(Doc. 17-1) ¶ 8.)
4

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area” and “rushed her with guns drawn and pointed loaded guns at
[her] head while yelling for her to get on the ground or we will
shoot you.” (Id. at 2.) Plaintiff was then handcuffed, taken to
a separate building, questioned for twenty to thirty minutes,
and was eventually told that she was not under arrest. (Id. at
2-3.) Plaintiff was then permitted to leave but “was unable to
walk more than a block because her legs and body were shaking
too bad.” (Id. at 3.) Plaintiff returned to the Mission where
she experienced disapproval from both staff and other Mission
residents and was eventually asked to leave, resulting in her
homelessness. (Id.) This caused Plaintiff to become depressed
and to feel “lost” and suicidal. (Id.) Plaintiff alleges that,
pursuant to a contract she signed with the Mission, Defendants
were responsible for her safety, well-being, and privacy, and
that this incident breached said contract. (Id. at 4.)
II.

LEGAL STANDARD OF REVIEW
“Under Rule 12(b)(2), a defendant must affirmatively raise

a personal jurisdiction challenge, but the plaintiff bears the
burden of demonstrating personal jurisdiction at every stage
following such a challenge.” Grayson v. Anderson, 816 F.3d 262,
267 (4th Cir. 2016) (citation omitted); Combs v. Bakker, 886
F.2d 673, 676 (4th Cir. 1989). Such a challenge may be resolved

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by the court as a preliminary matter. Grayson, 816 F.3d. at 267.
While this burden varies depending on the procedural posture of
the case,
when the court addresses the personal jurisdiction
question by reviewing only the parties’ motion papers,
affidavits attached to the motion, supporting legal
memoranda, and the allegations in the complaint, a
plaintiff need only make a prima facie showing of
personal jurisdiction to survive the jurisdictional
challenge. When determining whether a plaintiff has
made the requisite prima facie showing, the court must
take the allegations and available evidence relating
to personal jurisdiction in the light most favorable
to the plaintiff.
Id. at 268 (citations omitted). “A plaintiff makes a prima facie
showing in this context when it ‘present[s] evidence sufficient
to defeat a motion for judgment as a matter of law.’” Debbie’s
Staffing Servs., Inc. v. Highpoint Risk Servs., LLC, No.
1:17CV657, 2018 WL 1918603, at *2 (M.D.N.C. Apr. 20, 2018)
(citations omitted).
A federal district court may only assert personal
jurisdiction over a nonresident defendant when two conditions
are 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 First Church of Christ, Scientist v. Nolan,

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259 F.3d 209, 215 (4th Cir. 2001) (citation omitted). North
Carolina’s long-arm statute, N.C. Gen. Stat. § 1-75.4(1)d, is
construed “to extend jurisdiction over nonresident defendants to
the full extent permitted by the Due Process Clause.” Christian
Sci. Bd. of Dirs., 259 F.3d at 215 (citing Century Data Sys.,
Inc. v. McDonald, 109 N.C. App. 425, 427, 428 S.E.2d 190, 191
(1993)). “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.’” Id. (quoting Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945)).
Minimum contacts sufficient to establish personal
jurisdiction over a nonresident defendant may exist by virtue of
either specific jurisdiction or general jurisdiction. See
Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334
F.3d 390, 397 (4th Cir. 2003). Specific jurisdiction considers
instances where the nonresident defendant’s “contacts with the
forum also provide the basis for the suit” whereas general
jurisdiction considers instances where the defendant’s contacts
with the state are not the basis of the suit but defendant’s

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contacts with the state are “continuous and systematic.” See id.
(citation omitted).
III. ANALYSIS
Mindful of its duty to liberally construe the pleadings of
pro se litigants, Erickson v. Pardus, 551 U.S. 89, 94 (2007),
this court has reviewed all of the documents before it in
considering personal jurisdiction in this case. This court does
not have specific jurisdiction over the nonresident Defendants
in this case as the basis for the suit is a dispute that
occurred entirely within the state of Oregon. Likewise, this
court does not have general jurisdiction over any of the
nonresident Defendants in this case as no Defendant has
sufficient contacts – or any apparent contacts – with the state
of North Carolina.
The only remote connection that this case has to North
Carolina is that Plaintiff appears to have moved to the state
after the dispute underlying the lawsuit occurred. (See Compl.
(Doc. 2) at 1 (listing Plaintiff’s address in Durham, North
Carolina).) The fact that a plaintiff moves to a jurisdiction
following the event giving rise to litigation is not sufficient
to establish personal jurisdiction over nonresident defendants.
See Estate of Bank v. Swiss Valley Farms Co., 286 F. Supp. 2d

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514, 520 (D. Md. 2003) (“[H]aving a plaintiff domiciled in the
forum state is neither a necessary nor a sufficient condition
for the exercise of personal jurisdiction.”); Chabot v. Kennedy,
Civil Action No. 4:14-cv-04611-RBH, 2015 WL 4726987, at *6, 9
(D.S.C. Aug. 10, 2015) (granting motion to dismiss where only
contact with South Carolina was that plaintiff moved there after
events giving rise to the litigation occurred); see also ESAB
Grp., Inc. v. Centricut, Inc., 126 F.3d 617, 625-26 (4th Cir.
1997). Accordingly, because this court lacks personal
jurisdiction over each of the nonresident Defendants in this
case, Defendants’ Motion to Dismiss will be granted.
IV.

CONCLUSION
For the reasons set forth herein,
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss,

(Doc. 16), is GRANTED and that this case is DISMISSED WITHOUT
PREJUDICE.
A judgment in accordance with this Memorandum Opinion and
Order will be entered contemporaneously herewith.
This the 4th day of June, 2018.

_____________________________________
United States District Judge

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