Opinion
No. 1:02CV00833
February 25, 2003
MEMORANDUM OPINION
Plaintiff Mark A. Ward ("Plaintiff") brought this action pro se against Defendant WAVY Broadcasting, LLC, and LIN TELEVISION CORP. (collectively "Defendants") alleging tortious interference with Plaintiff's employment opportunities. Presently this matter is before the court on Defendants' motion to dismiss Plaintiff's complaint, Defendants' motion for a pre-filing injunction, Defendants' motion for summary judgment, and Plaintiff's motion for summary judgment.
FACTS
Defendants are Delaware corporations which own and operate WAVY-TV, a television station located in the Eastern District of Virginia. Plaintiff is a former employee of WAVY-TV. Plaintiff resided in the Eastern District of Virginia for the entire period of his employment with Defendants. Plaintiff left his employment with Defendants in 1993. Several years later Plaintiff moved to Winston-Salem, North Carolina, where he currently resides.
In 1993, Defendants settled a lawsuit brought by Plaintiff alleging race discrimination under Title VII of the Civil Rights Act of 1964. In accordance with the terms of the settlement agreement, Plaintiff resigned his employment with Defendants. Since 1993, Plaintiff and Defendants have opposed each other in no less than five actions based on allegations by Plaintiff stemming from this agreement.
On April 1, 1999, Plaintiff filed a second suit against Defendants in the United States District Court for the Eastern District of Virginia claiming that they breached the 1993 settlement agreement by allegedly failing to respond to employment reference requests. On November 9, 1999, Judge Robert G. Doumar granted Defendants' motion for summary judgment. On December 2, 1999, Plaintiff filed a motion to reopen his lawsuit, claiming that Defendants submitted false testimony. This motion was denied on January 18, 2000.
Plaintiff then filed a new lawsuit in the Circuit Court for the City of Portsmouth, Virginia, against Angelo Munoz, Business/Human Resources Manager for WAVY-TV, for allegedly lying under oath during the second suit. The Portsmouth Circuit Court sustained Munoz's demurrer and dismissed Plaintiff's action on August 14, 2000. Nearly two years later, on February 21, 2002, Plaintiff filed a new action in the Eastern District of Virginia seeking recovery against Defendants for "misrepresentation." Plaintiff voluntarily dismissed that action pursuant to Federal Rule of Civil Procedure 41(a)(1)(i). A few months later, however, Plaintiff filed a motion to vacate Judge Doumar's decision granting summary judgment to Defendants. On May 28, 2002, that court denied Plaintiff's motion on the grounds of res judicata. Furthermore, on September 30, 2002, Judge Doumar granted Defendants' motion for sanctions in part, instituting a pre-filing injunction against Plaintiff and ordering Plaintiff to "obtain leave of court prior to filing any subsequent motions or actions against Defendants." (Defs.' Mem. Supp. Mot. Dismiss or Summ. J. and Entry Pre-Filing Inj. against Pl., Ex. M at 3.)
On August 25, 2002, Plaintiff filed the present action against Defendants in the General Court of Justice, Superior Court Division, Forsyth County, North Carolina, alleging "tortious interference with Plaintiff's employment opportunities." (Compl. at ¶ 12.) On September 27, 2002, Defendants removed this action pursuant to 28 U.S.C. § 1441 and 1446, asserting diversity of citizenship under 28 U.S.C. § 1332. This case is presently before the court on Defendants' motion to dismiss, Defendants' motion for a pre-filing injunction, Defendants' motion for summary judgment, and Plaintiff's motion for summary judgment.
DISCUSSION
Defendants request that this action be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction. Plaintiff bears the ultimate burden of proof that personal jurisdiction is proper by a preponderance of the evidence. Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989). However, when the court examines this issue only on the basis of motion papers, including affidavits, legal memoranda, and the allegations of the complaint, Plaintiff need make only a prima facie showing of personal jurisdiction. Id. In deciding whether Plaintiff has made a prima facie showing, "the 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.
To determine whether personal jurisdiction is proper, the court must engage in a two-part inquiry. First, the court must determine whether the state long-arm statute authorizes the exercise of jurisdiction under the circumstances. Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir. 1993). Second, if the court finds such authorization under the long-arm statute, it must then consider whether the statutory assertion of jurisdiction is consistent with the Due Process Clause of the Fourteenth Amendment to the Constitution. Id.
In this case, the North Carolina long-arm statute defines the parameters of proper personal jurisdiction. See N.C. Gen. Stat. § 1-75.4. The provisions of this statute are to "be given a liberal construction, making available to the North Carolina courts `the full jurisdictional powers permissible under federal due process.'" Vishay Intertechnology, Inc. v. Delta Int'l Corp., 696 F.2d 1062, 1065 (4th Cir. 1982) (quoting Dillon v. Numismatic Funding Corp., 291 N.C. 674, 676, 231 S.E.2d 629, 630 (1977).
After applying the facts to the most pertinent sections of the law, the court finds that Plaintiff cannot satisfy the North Carolina long-arm statute. Plaintiff has not alleged that Defendants, Delaware corporations, have any "local presence or status." N.C. Gen. Stat. § 1-75.4(1). Plaintiff has not alleged that any special jurisdiction statutes apply to the present case. See id. at (2). Plaintiff has not alleged that Defendants solicited in, carried on activities in, or sent unsolicited bulk commercial electronic mail into North Carolina at any time. See id. at (4).
Although Plaintiff alleges to have been injured, Plaintiff has not alleged any injury "arising out of an act or omission within" North Carolina by Defendants. Id. at (3) (emphasis added). Plaintiff alleges that he was never given a copy of the "reference letter" which was supposed to have been attached to the 1993 settlement agreement with Defendants. (Compl. at ¶ 11.) Plaintiff alleges that since 1993 he has "sought employment elsewhere," but that Defendants have not responded to reference requests regarding his former employment with Defendants. (Id. at ¶¶ 6, 7, 9.) Nothing in these facts, however, indicates that Plaintiff was injured by any act or omission within North Carolina by Defendants.
Lastly, Plaintiff has not alleged that Defendants have promised to "perform services within" North Carolina. N.C. Gen. Stat. § 1-75.4(5)(a). The only promise Plaintiff has alleged that Defendants made was the promise to attach a copy of a reference letter to the 1993 settlement agreement. This promise was made in Virginia to Plaintiff, who was a Virginia resident at that time.
CONCLUSION
Plaintiff has not satisfied the North Carolina long-arm statute and, thus, has failed to make a prima facie showing of personal jurisdiction over Defendants. As a result, this court will grant Defendants' motion to dismiss, Defendants' motion for a pre-filing injunction will be dismissed as moot, Defendants' motion for summary judgment will be dismissed as moot, and Plaintiff's motion for summary judgment will be dismissed as moot. Plaintiff's motion to proceed in forma pauperis [application for leave to proceed in forma pauperis] will be granted. Plaintiff's motion for appointment of counsel will be denied as lacking a colorable claim on the merits. See Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986);see also Brown v. Ortho Diagnostic Sys., Inc., 868 F. Supp. 168, 172 n. 16 (E.D. Va. 1994).
An order in accordance with this memorandum opinion shall be entered contemporaneously herewith.
ORDER
For the reasons set forth in the memorandum opinion filed contemporaneously herewith,
IT IS ORDERED that Defendants' motion to dismiss [Doc. #5-1] is GRANTED, and this action is DISMISSED.
IT IS FURTHER ORDERED that Defendants' motion for a pre-filing injunction (Doc. #5-2] is DISMISSED as moot.
IT IS FURTHER ORDERED that Defendants' motion for summary judgment [Doc. #5-1] is DISMISSED as moot.
IT IS FURTHER ORDERED that Plaintiff's motion for summary judgment (Doc. #12-1] is DISMISSED as moot.
IT IS FURTHER ORDERED that Plaintiff's motion for production of documents [Doc. #1] is DISMISSED as moot.
IT IS FURTHER ORDERED that Plaintiff's motion to extend time [Doc. #8] is DISMISSED as moot.
IT IS FURTHER ORDERED that Plaintiff's motion to proceed in forma pauperis [application for leave to proceed in forma pauperis] [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff's motion for appointment of counsel [Doc. #3] is DENIED as lacking a colorable claim on the merits.
IT IS FURTHER ORDERED that Plaintiff's motion for appointment of counsel without oral argument [Doc. #11] is DENIED.