Opinion

Cheek v. Gurstel Law Firm, P.C

Court: District Court, W.D. North Carolina
Filed: Jul 14, 2020
Cited by: 0 cases
Authority: More cited than 24.8%

The opinion

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

DOCKET NO. 3:19-cv-00590-FDW-DSC

LEGRETTA F. CHEEK, )

)

Plaintiff, )

)

vs. )

)

GURSTEL LAW FIRM, P.C., ) ORDER

SHANNON N. CRANE, WHITNEY M. )

JACOBSON, and JESSE VASSALLO )

LOPEZ, )

)

Defendants. )

)

THIS MATTER is before the Court on Defendants’ Motion to Dismiss for Lack of

Jurisdiction (Doc. No. 15). Plaintiff timely filed a pro se Memorandum in Opposition (Doc. No.

23), and the Court, in a Roseboro Order (Doc. No. 26), advised Plaintiff of her right to respond to

Defendants’ Motions and the burden of proof she carried in so responding. Accordingly, Plaintiff

filed a pro se Amended Response (Doc. No. 28), and Defendants filed a Notice of intent not to file

a reply (Doc. No. 29). The issue is now ripe for review. For the reasons below, Defendants’

Motion to Dismiss for Lack of Jurisdiction (Doc. No. 15) is GRANTED.

I. BACKGROUND

On November 4, 2019, pro se Plaintiff Legretta F. Cheek filed her Complaint (Doc. No. 1)

against Defendants Gurstel Law Firm, P.C. (“Gurstel”), Shannon N. Crane, Whitney M. Jacobson,

and Jesse Vassallo Lopez (“Individual Defendants”). In her Complaint, Plaintiff asserts

Defendants, in attempting to collect a debt that arose when Plaintiff allegedly defaulted on a Bank

of America, N.A. credit card, violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et

seq. (“FDCPA”). See generally (Doc. No. 1). Plaintiff claims Defendants’ collection

communications and civil complaint No. CV2018-056884, filed in Arizona on behalf of Bank of

America, N.A., contained false representations and utilized deceptive means in attempt to collect

an alleged consumer debt. Id. at 4-6. In support of her claim, Plaintiff seems to assert Defendants’

filing of the Complaint in Arizona was improper, and thus, constituted a false representation and

deceptive means of collecting a debt in violation of the FDCPA. Id. Plaintiff states throughout

the Complaint (Doc. No. 1, p. 1) and her Amended Response (Doc. No. 28, p. 5-10) that she is a

resident of North Carolina.

Defendants filed a Motion to Dismiss for Lack of Jurisdiction (Doc. No. 15). In response,

Plaintiff filed a pro se Memorandum in Opposition (Doc. No. 23) and an Affidavit supporting her

Memorandum (Doc. No. 25). The Court, in accordance with the principles under Roseboro v.

Garrison, 528 F.2d 309 (4th Cir. 1975), further advised Plaintiff of her right to respond to

Defendants’ Motion and the burden of proof she carried in so responding. (Doc. No. 26).

Thereafter, Plaintiff filed an Amended Response (Doc. No. 28), and Defendants filed a notice of

intent not to file a reply (Doc. No. 29).

II. DISCUSSION

“When considering a motion to dismiss involving pro se parties, the court construes the

pleadings liberally to ensure that valid claims do not fail merely for lack of legal specificity.”

Brown v. Charlotte Rentals LLC, No. 3:15-cv-0043-FDW-DCK, 2015 WL 4557368, at *2

(W.D.N.C. July 28, 2015) (citing Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978)). At the

same time, however, the Court should not “assume the role of advocate for the pro se plaintiff.”

Gordon, 574 F.2d at 1151 (quotation omitted).

A. PERSONAL JURISDICTION

1. Standard of Review

Under Rule 12(b)(2) of the Federal Rules of Civil Procedure, dismissal is proper where the

court lacks personal jurisdiction over the defendants. The issue of personal jurisdiction is to be

resolved by a judge, with the burden on the plaintiff to show beyond a preponderance of the

evidence that the court has justification for exercising jurisdiction. Combs v. Bakker, 886 F.2d

673, 676 (4th Cir. 1989) (citation omitted). In sum, “the burden on the plaintiff is simply to make

a prima facie showing of a sufficient jurisdictional basis in order to survive the jurisdictional

challenge.” Id.

2. Analysis

Defendants move to dismiss Plaintiff’s Complaint under Federal Rule of Civil Procedure

12(b)(2), contending the Court lacks personal jurisdiction over them. In support of their Motion,

Defendants argue Plaintiff failed to allege facts in her Complaint that support personal jurisdiction

over them. (Doc. No. 16, p. 8). Defendants further assert they are not subject to general personal

jurisdiction in North Carolina as none of the Defendants are domiciled in the state. (Doc. No. 16,

p. 9). In addition, Defendants claim they do not have sufficient minimum contacts with North

Carolina to be subject to specific personal jurisdiction. (Doc. No. 6, p. 10).

When determining whether its exercise of personal jurisdiction over a given defendant is

proper, the court engages in a two-part inquiry. The first, or statutory, part requires that the

assertion of personal jurisdiction have a basis under the forum state’s (here, North Carolina) long-

arm statute; the second, or constitutional, part requires that the exercise of personal jurisdiction

comply with the due process requirements of the Fourteenth Amendment. Christian Sci. Bd. of

Dirs. of the First Church of Christ, Scientist v. Nolan, 259 F.3d 209, 215 (4th Cir. 2001). Courts

have historically construed North Carolina's long-arm statute to be coextensive with the Due

Process Clause. Id. This construction collapses the statutory and constitutional requirements into

a single inquiry whether the non-resident defendant has such “minimum contacts” with the forum

state that exercising jurisdiction over it does not offend “traditional notions of fair play and

substantial justice.” Id. (citing Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).

Jurisdiction over a defendant may be either general or specific. Helicopteros Nacionales

de Colombia, S.A. v. Hall, 466 U.S. 408, 414 nn. 8, 9 (1984). A court may exercise general

personal jurisdiction over defendants who have “continuous and systematic” contacts with the

forum state, regardless of where the relevant conduct occurs. CFA Inst. v. Inst. of Chartered Fin.

Analysts of India, 551 F.3d 285, 292 n. 15 (4th Cir. 2009). In contrast, specific personal

jurisdiction “requires only that the relevant conduct have such a connection with the forum state

that it is fair for the defendant to defend itself in that state.” Id. “A court may exercise specific

jurisdiction ‘[w]hen the cause of action arises out of the defendant's contacts with the forum.’”

Saudi v. Northrop Grumman Corp., 427 F.3d 271, 276 (4th Cir. 2005) (alteration in original)

(quoting Base Metal Trading, Ltd. v. OJSC “Novokuznetsky Aluminum Factory”, 283 F.3d 208,

213 (4th Cir. 2002)). Although the contacts which give rise to personal jurisdiction can be

relatively minimal, it is also true that casual, isolated, random, or fortuitous actions are insufficient

for a court to exercise personal jurisdiction over a non-resident defendant. CFA Inst., 551 F.3d at

293.

Despite the Court’s Roseboro Notice informing Plaintiff of her burden in responding to

Defendants’ Motion, Plaintiff completely fails to allege any facts which would make a prima facie

showing of a sufficient jurisdictional basis over Defendants in this Court. In her Complaint,

Plaintiff claims this Court has jurisdiction over this matter under 15 U.S.C. § 1692k(d)1 and 28

U.S.C. § 1331.2 (Doc. No. 1, p. 1). Plaintiff misconstrues theses federal statutes. Although

Plaintiff is correct that federal district courts have original jurisdiction of suits arising under the

FDCPA, a “law of the United States,” and the Court would have subject matter jurisdiction over

this matter, Plaintiff fails to understand her suit must be brought in an appropriate district court.

Pursuant to the Federal Rules of Civil Procedure, a district court is not appropriate if it lacks

jurisdiction over the defendants. See Fed. R. Civ. P. 12(b)(2). In contrast, Plaintiff seems to

mistakenly believe an appropriate district court is one in which the Plaintiff is subject to personal

jurisdiction. E.g., (Doc. No. 28, p. 6-7).

Based on Plaintiff’s Complaint and Defendants’ declarations, Defendants have not

subjected themselves to the reach of North Carolina’s jurisdiction. The Individual Defendants and

Defendant Gurstel have submitted declarations affirming they do not have property ownership, a

business presence, or systematic connection with North Carolina. (Doc. Nos. 17, 18, 19, 20).

Accordingly, they are not subject to general personal jurisdiction in North Carolina. Likewise,

here, the entirety of Plaintiff’s Complaint focuses on Defendants’ actions that took place in

Arizona. See generally (Doc. No. 1). As such, Defendants’ actions were not directed at North

Carolina and Defendants are not subject to specific personal jurisdiction in North Carolina. The

lone contact any Defendants have had with North Carolina occurred when Lopez, in support of the

1 15 U.S.C. § 1692k(d) states, “An action to enforce any liability created by this subchapter may be brought in any

appropriate United States district court without regard to the amount in controversy, or in any other court of competent

jurisdiction, within one year from the date on which the violation occurs.” 15 U.S.C. § 1692k(d).

2 28 U.S.C. § 1331 states, “The district courts shall have original jurisdiction of all civil actions arising under the

Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.

requirements of the ongoing Arizona lawsuit, mailed to Plaintiff's North Carolina address the

notice of motion for summary judgment and supporting documents—over five months after the

Arizona lawsuit began, and only after Plaintiff filed with the Arizona Superior Court a change of

address notice. (Doc. No. 20, p. 3, 7). Such conduct is insufficient to meet the requirements of

personal jurisdiction as it is attenuated and fortuitous—the only reason why Defendants ultimately

mailed documents to North Carolina is so they could comply with the requirements of an ongoing

lawsuit in Arizona against a party that, for the first five months of that suit, lived in Arizona. Id.;