United States District Court, D. Maryland
K. BREDAR CHIEF JUDGE.
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.
Factual and Procedural
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
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
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).
Applicable Legal Standards
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)).
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).
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
Court will first consider Defendants' objection to
personal jurisdiction, then venue, and finally
Defendants' request that the case be dismissed under
forum non conveniens.
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 ...