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Seidel v. Kirby

United States District Court, D. Maryland

October 26, 2017

NICOLE MUENCH SEIDEL, et al., Plaintiffs
v.
BOBBIE M. KIRBY, et al., Defendants

          MEMORANDUM

          JAMES K. BREDAR CHIEF JUDGE.

         Plaintiffs are Maryland residents who have brought this action against five out-of-state Defendants in response to alleged abusive behavior that Defendants engaged in online. Defendants moved to dismiss Plaintiffs' complaint for failure to state a claim (ECF No. 7) and in response Plaintiffs amended their complaint (ECF No. 8). The Defendants now bring a second motion to dismiss, this time for lack of personal jurisdiction, improper venue, or, in the alternative, dismissal under the doctrine of forum non conveniens (ECF No. 13). Plaintiffs have responded in opposition to that motion and have moved to strike Defendants' motion to dismiss and, in the alternative, have moved for jurisdictional discovery (ECF No. 16). All parties have had the opportunity to respond, the issues are fully briefed, and there is no need to have a hearing to resolve the matter. See Local Rule 105.6 (D. Md. 2016). Defendants' motion to dismiss will be denied because Defendants waived their objection to personal jurisdiction, see Fed. R. Civ. P. 12(h), venue is proper under 28 U.S.C. § 1391(b)(2), and forum non conveniens generally only applies when “the alternative forum is abroad, ” American Dredging Co. v. Miller, 510 U.S. 443, 449 n.2 (1994); see also Charles A. Wright & Arthur R. Miller, 14D Fed. Prac. & Proc. Juris. § 3828 (4th ed. 2017) (doctrine applies only when superior forum is in foreign country, or in rare circumstances in a state court or territorial court). For these reasons, Defendants' motion to dismiss will be denied by accompanying order. Plaintiffs' request for jurisdictional discovery is moot, and Plaintiffs' motion to strike will be denied.

         I. Factual and Procedural Background[1]

         Plaintiffs filed their first complaint on February 1, 2017 (Compl., ECF No. 1). This complaint was largely devoid of substance. Essentially, it alleged “upon information and belief” that Defendants were residents of various states and had “published and/or republished” defamatory statements about the Plaintiffs online. (Id.) Plaintiffs, after some delay, effected service of this complaint on Defendants on May 9. On receipt of this original complaint, Defendants would have had notice of at least two facts: (1) Plaintiffs alleged that they had defamed them in some way and invaded the Plaintiffs' privacy in some way, and (2) Plaintiffs brought this lawsuit in Maryland.

         On June 1, Defendants moved to dismiss under Rule 12(b)(6), contending that Plaintiffs' threadbare and conclusory complaint failed to state a claim upon which relief could be granted. (Defs.' Mot. Dismiss Mem. Supp., ECF No. 7-1.) In response, Plaintiffs amended their complaint to include more specifics, such that it now provided more than vague and conclusory allegations. (First Am. Compl.) Briefly, Plaintiffs' grievance arises from defamatory and harassing behavior that the Defendants engaged in online in connection with a fan fiction forum and competition, targeted towards the Plaintiffs. (See Id. Exs. A-E, ECF Nos. 8-1 through 8-6.) Plaintiffs did not allege that any Defendants engaged in any actions while in or from Maryland, but that the effects of the Defendants' actions were felt by the Plaintiffs in Maryland. (See First Am. Compl. ¶ 18.) After receiving notice of the particulars of Plaintiffs' complaint against them, Defendants again moved to dismiss (ECF No. 13), this time on the grounds that the Court lacked personal jurisdiction, and that venue in Maryland would be improper, or that the case should be dismissed under the doctrine of forum non conveniens.

         Plaintiffs replied in opposition to Defendants' second motion to dismiss, and also moved the Court to strike Defendants' objections to personal jurisdiction and venue (ECF No. 16).

         II. Applicable Legal Standards

         A motion to dismiss under Rule 12(b)(2) is a test of the Court's personal jurisdiction over the defendant. “[W]hen, as here, the court addresses the question [of 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 a sufficient jurisdictional basis to survive the jurisdictional challenge.” New Wellington Fin. Corp. v. Flagship Resort Dev. Corp., 416 F.3d 290, 294 (4th Cir. 2005) (quoting Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989)).

         A motion to dismiss under Rule 12(b)(3) “requires a similar inquiry to that of Rule 12(b)(2).” Trimgen Corp. v. Iverson Genetic Diagnostics, Inc., Civ. No. RDB-14-2850, 2015 WL 2165118 *2 (D. Md. May 7, 2015). The burden of establishing proper venue is on the plaintiff, id., and “all inferences must be drawn in favor of the plaintiff.” Silo Point II LLC v. Suffolk Const. Co., Inc., 578 F.Supp.2d 807, 809 (D. Md. 2008) (quoting Sun Dun, Inc. of Washington v. Coca-Cola Co., 740 F.Supp. 381, 385 (D. Md. 1990)). Objections to personal jurisdiction and venue can be waived if they were available to the defendant and not raised in the defendant's first motion to dismiss under Rule 12(b). See Fed. R. Civ. P. 12(h).

         Rule 12(f) permits a court to “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” The Fourth Circuit has stated that Rule 12(f) motions are “generally viewed with disfavor.” Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001). Plaintiffs styled their initial response to Defendants' second motion to dismiss as a motion to strike as well as simply a response in opposition to the Defendants' second motion. While the Court will consider Plaintiffs' contention that Defendants waived their right to challenge personal jurisdiction and venue as part of their general argument in opposition to Defendants' second motion to dismiss, because motions to strike are disfavored and the Plaintiffs have not pointed the Court in the direction of any redundant, immaterial, impertinent, or scandalous material in Defendants' motion, Plaintiffs' motion to strike will be denied.

         III. Analysis

         The Court will first consider Defendants' objection to personal jurisdiction, then venue, and finally Defendants' request that the case be dismissed under forum non conveniens.

         a. Personal Jurisdiction

         The crux of the question of personal jurisdiction here is not the substance of Defendants' personal jurisdiction challenge, but whether the Defendants have waived their right to make such a challenge. Plaintiffs contend that by failing to raise this challenge in their first motion to dismiss under Rule 12(b)(6), Defendants consented to personal jurisdiction in Maryland. Defendants contend that because Plaintiffs amended their complaint, Defendants' prior motion to dismiss under Rule 12(b)(6) is moot and has no bearing on whether Defendants waived any defenses. Defendants are ...


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