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Johnson v. United States Postal Service

United States District Court, W.D. Tennessee, Eastern Division

December 1, 2014

KOREA WITCHER JOHNSON, Plaintiff,
v.
UNITED STATES POSTAL SERVICE, COBB COUNTY (GA.) DEPARTMENT OF FAMILY AND CHILDREN SERVICES, JOSEPH, GREENWALD, AND LAAKE, P.A. and, JAY P. HOLLAND, attorney at law, Defendants.

REPORT AND RECOMMENDATION

EDWARD G. BRYANT, Magistrate Judge.

Before the Court is the special appearance of Maryland law firm, Defendant Joseph, Greenwald & Laake, P.A. ("Defendant Firm"), and Maryland lawyer, Jay P. Holland ("Defendant Holland"), for the limited purpose of moving the Court to dismiss pro se Plaintiff Korea Witcher Johnson's Complaint, pursuant to Rule 12 of the Federal Rules of Civil Procedure, for lack of personal jurisdiction, insufficient service of process, and failure to state a claim upon which relief can be granted (D.E. 17). This matter has been referred to the Magistrate Judge for report and recommendation. For the reasons set forth below, the Magistrate Judge recommends that this Motion be granted.

Background

Defendant Firm is a law firm and a professional association whose principal office and office branches are all located in Maryland. See Defendants' Motion, Exhibit 1.1. Defendant Firm does not maintain any office outside Maryland and does not actively solicit out-of-state clients, including individuals from Tennessee. See Affidavit of Jay Holland ¶¶ 11-13 ("Holland Aff."), attached to Motion as Exhibit 2. Defendant Holland lives in Maryland and is a shareholder at Defendant Firm's primary location in Greenbelt, Maryland. See Holland Aff. ¶¶ 2-3. Defendant Holland is only admitted to the Maryland and D.C. state bars. See Holland Aff. ¶ 5. Defendant Holland does not solicit clients from Tennessee and has never visited Tennessee for any occasion. See Holland Aff. ¶¶ 4, 10.

Defendant gives the following factual background, which has been undisputed by Plaintiff: On or around November 6, 2013, Plaintiff contacted Defendant Firm through its intake personnel, seeking representation for an alleged civil rights violation that took place in Georgia. See Holland Aff. ¶ 16. Because Defendant Firm is local to Maryland and D.C., excepting its False Claims Act practice, Defendant Holland declined to represent the Plaintiff and, as per common protocol, Defendant Holland advised the intake personnel to send out a letter declining representation (a "no rep" letter) to the Plaintiff. See Holland Aff. ¶¶ 17-18. Neither defendant Holland nor Defendant Firm solicited business from Plaintiff, and Defendant Holland never had any direct contact with the Plaintiff. See Holland Aff. ¶¶ 19-21. Following the receipt of the "no rep" letter, Plaintiff called Defendant Firm several times and stated that she had never contacted Defendant Firm and the Defendants committed identity theft. See Holland Aff. ¶ 22. Defendants were later contacted by a police officer from the Leland, Mississippi Police Department, who confirmed that Plaintiff had shown him the "no rep" letter and that Plaintiff accused Defendants of identity theft. See Holland Aff. ¶ 23. Defendants were then contacted by the Greenbelt, Maryland Police Department, who similarly stated that Plaintiff contacted them alleging identity theft against the Defendants. See Holland Aff. ¶ 24. On March 18, 2014, copies of the Plaintiff's summons and Complaint were delivered to the office and signed for by the front desk receptionist. See Holland Aff. ¶ 25; Copy of Pl.'s Envelope Addressed to Def. Firm ("Firm Summons"), attached as Exhibit 4 of Motion; Copy of Pl.'s Envelope Addressed to Def. Holland ("Holland Summons"), attached as Exhibit 5 of Motion. The front desk receptionist is not authorized to receive and sign for summonses for Defendant Firm nor Defendant Holland. See Holland Aff. ¶¶ 26-27.

Plaintiff's Complaint simply alleged that "JOSEPH, GREEWALD, LAAKE, P.A. & Jay P. Holland unlawfully and wrongfully used and stolen my identity for identity theft after my mail was stolen." See Compl. ¶ 3, D.E. 1. Defendants now file this Motion respectfully requesting that this Court dismiss the Complaint as to Defendant Firm and Defendant Holland for lack of personal jurisdiction, insufficient service of process, and failure to state a claim.

Standard of Review

1. Standard of Review for a Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(2).

A federal court sitting in diversity must look to the law of the forum state, here Tennessee, to determine whether the district court's in personam jurisdiction reaches the nonresident defendant at issue. Int'l Tech. Consultants, Inc. v. Euroglas, S.A., 107 F.3d 386, 391 (6th Cir. 1997). When challenged, the burden rests on the plaintiff to establish the existence of personal jurisdiction over the defendant. Welsh v. Gibbs, 631 F.2d 436, 438 (6th Cir. 1980). In satisfying this burden, the "plaintiff may not stand on his pleadings but must, by affidavit or otherwise, set forth specific facts showing that the court has [personal] jurisdiction." Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir. 1991). However, when determining whether there have been sufficient contacts with the forum state to establish personal jurisdiction, the court must interpret the pleadings and affidavits in the light most favorable to the plaintiff. Id. at 1459.

2. Standard of Review for a Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(5).

A plaintiff must serve a summons and a copy of the complaint upon individuals within the United States as provided by Rule 4(e) and upon corporations as provided by Rule 4(h). The plaintiff "bears the burden of perfecting service of process and showing that proper service was made." Sawyer v. Lexington-Fayette Urban County Gov't, No. 00-6097, 18 Fed.Appx. 285, at *287 (6th Cir. Aug.21, 2001) (citing Byrd v. Stone, 94 F.3d 217, 219 (6th Cir.1996)). "When service of process is challenged, the burden rests with the plaintiff to establish that service is properly made." See McGath v. Hamilton Local Sch. Dist., 848 F.Supp.2d 831, 836 (S.D.Ohio 2012).

3. Standard of Review for a Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6).

When considering a Rule 12(b)(6) motion to dismiss, the trial court must accept all the allegations in the complaint as true and construe the complaint liberally in favor of the plaintiff. See Miller v. Currie, 50 F.3d 373, 377 (6th Cir. 1995). "Dismissal of a complaint for the failure to state a claim upon which relief may be granted is appropriate only if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000). With regard to allegations of fraud, the allegations must be pled with particularity in accordance with Rule 9(b). Chesbrough v. VPA, 655 F.3d 461, 466 (6th Cir. 2011). The Court must construe the complaint in the light most favorable to the plaintiff, accept factual allegations as true, and determine whether the complaint contains ...


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