Burleson v. Toback, No. 1:04CV795.

391 F.Supp.2d 401

Janet BURLESON, Plaintiff, v. Arlene TOBACK, Lynette Jacobs, Lil Beginnings International, Mary Lou Mceachern, Karen Francschini, Danielle Emond, Mona Stone, Kris Patsolic, Debi Murphy, Jennifer Jacula, Kim Bond, Kay Baxter, Defendants.

No. 1:04CV795.

United States District Court, M.D. North Carolina.

September 30, 2005.

COPYRIGHT MATERIAL OMITTED

Nicholas S. Ackerman, Greensboro, NC, for Plaintiff.

David Marshall Duke, Young Moore and Henderson, P.A., Raleigh, NC, Victoria L Thompson, Cypress, TX, Karl N. Hill, Jr., Hill Evans Duncan Jordan & Beatty, PLLC, Greensboro, NC, for Defendants.

MEMORANDUM OPINION

BEATY, District Judge.

This matter is before the Court on various Motions to Dismiss filed by several of the Defendants in this matter. For the reasons discussed below, the Court concludes that it does not have personal jurisdiction over the Defendants who have filed Motions to Dismiss in this case. Therefore, the Motions to Dismiss filed by Defendants Lil Beginnings International ("LBI"), Mary Lou McEachern ("McEachern"), Lynette Jacobs ("Jacobs"), Mona Stone ("Stone"), Debi Murphy ("Murphy"), Kim Bond ("Bond"), Kris Patsolic ("Patsolic"), Danielle Emond ("Emond"), and Jennifer Jacula ("Jacula") [Document Nos. 3, 6, 8, 10, 12, 13, 15, 42] will be GRANTED and the claims against Defendants LBI, McEachern, Jacobs, Stone, Murphy, Bond, Patsolic, Emond, and Jacula will be dismissed without prejudice. In addition, the Court concludes that Plaintiff has failed to make a prima facie allegation of jurisdiction over the remaining Defendants Arlene Toback ("Toback"), Kay Baxter ("Baxter"), and Karen Francschini ("Francschini"). However, given that these three Defendants have failed to respond in any way to Plaintiff's claims, the Court will allow Plaintiff thirty (30) days in which to file any additional evidence of jurisdiction as to these three Defendants. If Plaintiff fails to provide sufficient additional evidence or allegations to support the Court's exercise of jurisdiction over the remaining Defendants, the Court will dismiss sua sponte the claims against Defendants Toback, Baxter, and Francschini.

I. FACTUAL BACKGROUND

Plaintiff is a North Carolina resident and is involved in training miniature horses as guide animals for the vision-impaired. However, other individuals involved with training and raising miniature horses disagree with the use of horses as guide animals, and have expressed their disagreement in an internet web forum (the "Forum") operated by LilBeginnings International ("LBI"). Plaintiff in this case brings claims against LBI and against various individuals involved in postings on the LBI Forum criticizing the use of guide horses.¹ Plaintiff contends that the publishers of LBI used their editorial control to selectively encourage libelous content about Plaintiff and to remove positive information about her, and failed to retract the allegedly libelous statements. In addition to LBI, Plaintiff similarly complains of allegedly libelous information on two informational websites registered by Defendant McEachern and found at http://www.guidehorse.info (the "Info Site") and http://www.guidehorseno.com (the "No Site").²

Plaintiff also brings claims for various alleged intellectual property infringements. First, Plaintiff contends that Plaintiff (or her family) posted a web page entitled "Boycott the L'il Beginnings Miniature Horse Web Site," and that Defendant McEachern republished that page on the LBI website. Second, Plaintiff complains of cybersquatting and trademark violations. Specifically, Plaintiff contends she owns trademarks on a seeing eye horse logo ("Guide Horse Logo"), the words "Guide Horse" and "seeing eye horse," and website addresses and name derivatives of the words "Guide Horse" and "seeing eye horse." Plaintiff further notes that she has not licensed any uses of these trademarks to Defendants. Plaintiff contends that Defendant McEachern has illegally registered the names "www.guidehorse.info" and "www.guidehorseno.com", and that Defendants have published websites at those addresses.³ Additionally, Plaintiff charges that Defendants have misappropriated a likeness of the Guide Horse Logo claimed by Plaintiff.

Plaintiff has also brought claims for tortious interference with business relationships, alleging that Defendants conspired to unlawfully interfere with contractual business relationships between Plaintiff and the Guide Horse Foundation, the Guide Horse Foundation's clients, and Plaintiff's own clients. Further, Plaintiff asserts that Defendants conspired to tortiously interfere with Plaintiff's guide horse training by making false accusations, which caused one of Plaintiff's clients to return her guide horse. Plaintiff also claims that when another of her clients attempted to respond to allegedly libelous comments on the Forum, he was "banned by the moderator for attempting to stop the defamatory comments." (Compl. at ¶ 32.) Plaintiff argues that Defendants' conduct intentionally induced Plaintiff's clients to rescind their contracts with her. (Compl. at ¶ 33.) Plaintiff also brings a claim for "harassment," claiming that Defendants have attempted to force her to discontinue her work with guide horses. (Id. at ¶ 38.)⁴

In response, Defendants contend that this Court does not have personal jurisdiction over them, and that even if the Court did have jurisdiction, Plaintiff has failed to state a claim upon which relief may be granted. Plaintiff has included twelve (12) defendants in this suit, none of whom are citizens or residents of North Carolina, and many of whom are residents of Canada.⁵ Defendants have separately filed various Motions to Dismiss on these grounds. For ease of analysis, the Court will first consider the general standards for assessing personal jurisdiction, particularly where contact with the forum state is based on Internet postings, and will then consider the applicable standards separately with respect to each of the Defendants.

II. PERSONAL JURISDICTION STANDARDS

A. General Standards for Personal Jurisdiction

Federal courts may assert "personal jurisdiction over a defendant in the manner provided by state law." Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir.2003) (construing Fed.R.Civ.P. 4(k)(1)(A)). To exercise personal jurisdiction over a nonresident defendant, "the exercise of jurisdiction must be authorized under the state's long-arm statute" and "the exercise of jurisdiction must comport with the due process requirements of the Fourteenth Amendment." Id. North Carolina's long-arm statute provides for personal jurisdiction in "any action, whether the claim arises within or without this State, in which a claim is asserted against a party who when service of process is made upon such party ... is engaged in substantial activity within this State, whether such activity is wholly interstate, intrastate, or otherwise." N.C. Gen.Stat. § 1-75.4(1)(d). This statute has been interpreted as extending to the full extent permitted by the Constitution. See Christian Sci. Bd. of Dirs. of the First Church of Christ, Scientist v. Nolan, 259 F.3d 209, 215 (4th Cir.2001); Dillon v. Numismatic Funding Corp., 291 N.C. 674, 676, 231 S.E.2d 629, 630 (1977) ("By the enactment of G.S. 1-75.4(1)(d), it is apparent that the General Assembly intended to make available to the North Carolina courts the full jurisdictional powers permissible under federal due process."). To satisfy due process, the defendant must have certain "minimum contacts" with the forum state "such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (citation omitted).

Personal jurisdiction over a defendant may be either "general" relating to any course of action or "specific" and related to the particular course of action. See ALS Scan. Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 711-12 (4th Cir.2002). Specific jurisdiction can be found "[w]hen a controversy is related to or `arises out of' a defendant's contacts with the forum...." Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 (1984) (quoting Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2579, 53 L.Ed.2d 683 (1977)). In such a case, "the Court has said that a `relationship among the defendant, the forum, and the litigation' is the essential foundation of in personam jurisdiction." Id. (quoting Shaffer, 433 U.S. at 204, 97 S.Ct. at 2579). In contrast, general jurisdiction exists even if "defendant's contacts with the State are not also the basis for suit" when the defendant has "general, more persistent, but unrelated contacts with the State." ALS Scan, 293 F.3d at 712.

B. Requirements for Asserting General Jurisdiction

For a court to exercise general jurisdiction, the defendant's contacts with the forum state must be "continuous and systematic." See Helicopteros, 466 U.S. at 416, 104 S.Ct. at 1873. This is a rigorous standard. See ALS Scan, 293 F.3d at 715 ("[T]he threshold level of minimum contacts sufficient to confer general jurisdiction is significantly higher than for specific jurisdiction."); ESAB Group Inc. v. Centricut, Inc., 126 F.3d 617, 623 (4th Cir.1997). In regard to contacts based upon Internet activity, the Fourth Circuit has held that it is not ready to "recognize that a State may obtain general jurisdiction over out-of-state persons who regularly and systematically transmit electronic signals into the State via the Internet based solely on those transmissions." ALS Scan, 293 F.3d at 715. Thus, even regular and systematic contact with the State via the Internet, without "something more," is insufficient to establish general jurisdiction.⁶ Id. (stating that "[s]omething more would have to be demonstrated").

C. Requirements for...