NEAL v. BROWER

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

NEAL BOYZ FAMILY TRUCKING, )

LLC, WILBERT A. NEAL, and )

SHENIKA DAVIS, )

)

Plaintiffs, )

) 1:24-CV-78

v. )

)

DARREN BREWER and CARRIER411 )

SERVICES, INC.,1 )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, District Judge.

This is a defamation case concerning allegations that

Defendants posted false data about Plaintiffs’ trucking business

on Defendants’ internet website. Before the court are the motions

to dismiss, pursuant to Federal Rules of Civil Procedure 12(b)(2)

and (b)(6), by Defendants Darren Brewer and Carrier411 Services,

Inc. (“Carrier411”). (Docs. 7, 8.) For the reasons set forth

below, the Rule 12(b)(2) motions will be granted, and the Rule

12(b)(6) motions will be denied as moot.

I. BACKGROUND

Plaintiffs filed this action in January 2024. (Doc. 1.) On

May 9, 2024, the court stayed it for sixty days to allow Neal Boyz

Family Trucking, LLC (“Neal Boyz”) sufficient time to have retained

1 The complaint sometimes references Defendant Brewer as Brower.

counsel make an appearance because, under this court’s Local Rule

11.1(a), a “corporation or other entity may appear only through an

attorney.” (Doc. 15.) The court warned Plaintiffs that if no

counsel appeared by the end of the stay period, any of the

complaint’s claims by Neal Boyz would be dismissed without

prejudice. (Id.) The stay expired on July 9, 2024, and Neal Boyz

has not had counsel appear in the case. Accordingly, any claims

by Neal Boyz will be dismissed without prejudice. Hereinafter,

the court will refer to Plaintiffs Wilbert A. Neal and Shenika

Davis collectively as “Plaintiffs,” to the exclusion of Neal Boyz.

Plaintiffs have not responded in opposition to the motions to

dismiss, which were filed March 14, 2024. The court issued

Plaintiffs a Roseboro letter2 on March 14, 2024, advising them of

their right to respond and warning that a failure to do so may

cause the court “to conclude that the defendant’s contentions are

undisputed and/or that you no longer wish to pursue the matter.”

(Doc. 9 at 1.) The court also warned that in the absence of any

opposition filed, “it is likely your case will be dismissed.”

(Id.) Even if the court generously paused the time to respond

upon Plaintiffs’ motion to stay on April 1, 2024 (Doc. 12), which

the court did not grant until May 9, 2024 (Doc. 15), the twenty-

one days to respond has now expired. L.R. 7.3(f).

2 See Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975).

Plaintiffs appear pro se, and their pleadings “should not be

scrutinized with such technical nicety that a meritorious claim

should be defeated.” Gordon v. Leeke, 574 F.2d 1147, 1151 (4th

Cir. 1978). But the liberal construction of a pro se party’s

filing does not require the court to ignore clear defects in it,

Bustos v. Chamberlain, No. 3:09–1760, 2009 WL 2782238, at *2

(D.S.C. Aug. 27, 2009), or to become an advocate for the pro se

party, Weller v. Dep’t of Soc. Servs., 901 F.2d 387, 391 (4th Cir.

1990). See also Beaudett v. City of Hampton, 775 F.2d 1274, 1278

(4th Cir. 1985) (noting that “[d]istrict judges are not mind

readers”).

As a preliminary matter, Plaintiffs have inconsistently named

the Defendants in their filings. The complaint caption lists

“Darren Brewer” and “Known and Unknown Shareholders.” (Doc. 1 at

1.) Paragraph 5 describes the Defendant as “Darren Brewer,

(hereinafter ‘Carrier 411’ or ‘Defendant’).” (Id. ¶ 5.) The

summons lists the Defendant as “Carrier411 Servic[e] Inc. (Darren

Brewer)” in the caption and only “Darren Brewer” in the salutation.

(Doc. 4.) A number of allegations in the complaint are directed

at Carrier411, and both Brewer and Carrier411 have filed motions

to dismiss “in an abundance of caution.” (Doc. 11 at 1 n.1.)

Despite Plaintiffs’ inconsistency, the court will address the

motions of both Defendants.

The allegations in the complaint (Doc. 1), which the court

accepts as true for the purpose of these motions, show the

following:

Plaintiffs operate Neal Boyz, which is a small trucking

company operating under the authority of the Federal Motor Carrier

Safety Administration (“FMCSA”). (Id ¶ 4.) Plaintiffs are

residents of Whitsett, North Carolina. (Id. at 1.) Defendant

Darren Brewer is the chief executive officer of Defendant

Carrier411, which operates an internet platform that tracks

reviews and reputation scores of all carriers registered with the

FMCSA. (Id. ¶ 5.)

Plaintiffs allege that they have never been involved in any

accidents and have been compliant with FMCSA rules requiring annual

inspections. (Id. ¶ 18.) Despite this, they allege that they

lost business opportunities to truck goods because Carrier411

reported data online showing that they had no inspections in the

previous two years. (Id. ¶ 22.) They allege that Carrier411’s

acts were conducted with “ill will” or were “reckless” because a

Carrier411 employee hung up the phone or blocked their number when

Plaintiffs called to inquire about the report. (Id. ¶ 26.)

Based on these allegations, Plaintiffs plead four counts: (1)

defamation per se; (2) defamation per quod; (3) intentional

infliction of emotional distress; and (4) negligent infliction of

emotional distress. (Id. ¶¶ 38-56.) They seek damages and

injunctive relief. (Id. at 8-9.) Defendants moved to dismiss on

March 13, 2024. (Docs. 7, 8.) The motions are ready for

resolution.

II. ANALYSIS

Defendants seek dismissal pursuant to Rules 12(b)(2) and

(b)(6), for lack of personal jurisdiction and failure to state a

claim, respectively. Because the court finds that it may not

exercise personal jurisdiction over them in this action, it need

not reach the Rule 12(b)(6) motions.

A. Standard of Review

“When a federal court sits in diversity, it ‘has personal

jurisdiction over a non-resident defendant if (1) an applicable

state long-arm statute confers jurisdiction and (2) the assertion

of that jurisdiction is consistent with constitutional due

process.’” Perdue Foods LLC v. BRF S.A., 814 F.3d 185, 188 (4th

Cir. 2016) (quoting Nichols v. G.D. Searle & Co., 991 F.2d 1195,

1199 (4th Cir. 1993)). North Carolina’s long-arm statute “is

construed to extend jurisdiction over nonresident defendants to

the full extent permitted by the Due Process Clause.” Christian

Sci. Bd. of Dirs. of the First Church of Christ, Scientist v.

Nolan, 259 F.3d 209, 215 (4th Cir. 2001) (citing Century Data Sys.,

Inc. v. McDonald, 428 S.E.2d 190, 191 (N.C. Ct. App. 1993)).

“Thus, the dual jurisdictional requirements collapse into a single

inquiry as to whether the defendant has such ‘minimal contacts’

with the forum state that ‘maintenance of the suit does not offend

“traditional notions of fair play and substantial justice.”’” Id.

(quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).

There are two kinds of personal jurisdiction: general and

specific. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564

U.S. 915, 919 (2011). “For an individual, the paradigm forum for

the exercise of general jurisdiction is the individual’s domicile;

for a corporation, it is an equivalent place, one in which the

corporation is fairly regarded as at home.” Id. at 924.

Specific jurisdiction “covers defendants less intimately

connected with a State, but only as to a narrower class of claims.”

Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 592 U.S. 351, 359

(2021). The three requirements for specific personal jurisdiction

are “(1) the extent to which the defendant purposefully availed

itself of the privilege of conducting activities in the State; (2)

whether the plaintiffs’ claims arise out of those activities

directed at the State; and (3) whether the exercise of personal

jurisdiction would be constitutionally reasonable.” UMG

Recordings, Inc. v. Kurbanov, 963 F.3d 344, 352 (4th Cir. 2020)

(internal quotation marks omitted).

First, for the purposeful availment inquiry, courts will

assess whether the defendant has certain “minimum contacts” with

the forum. Ford Motor Co., 592 U.S. at 359 (citing Burger King

Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)). The contacts must

show “the defendant deliberately ‘reached out beyond’ its home —

by, for example, ‘exploi[ting] a market’ in the forum State or

entering a contractual relationship centered there.” Id. (quoting

Walden v. Fiore, 571 U.S. 277, 285 (2014)); see also id. at 360

(discussing requirement that defendant fairly have “clear notice”

that it could be haled into court for its conduct and collecting

cases).

As the Supreme Court explained in International Shoe:

[T]o the extent that a corporation exercises the

privilege of conducting activities within a state, it

enjoys the benefits and protection of the laws of that

state. The exercise of that privilege may give rise to

obligations; and, so far as those obligations arise out

of or are connected with the activities within the state,

a procedure which requires the corporation to respond to

a suit brought to enforce them can, in most instances,

hardly be said to be undue.

Int’l Shoe Co., 326 U.S. at 319. “[W]ith respect to interstate

contractual obligations, [the Supreme Court] ha[s] emphasized that

parties who ‘reach out beyond one state and create continuing

relationships and obligations with citizens of another state’ are

subject to regulation and sanctions in the other State for the

consequences of their activities.” Burger King Corp., 471 U.S. at

473 (quoting Travelers Health Assn. v. Virginia, 339 U.S. 643, 647

(1950)). “[A]lthough physical presence in the forum is not a

prerequisite to jurisdiction, [] physical entry into the State —

either by the defendant in person or through an agent, goods, mail,

or some other means — is certainly a relevant contact.” Walden,

571 U.S. at 285 (internal citations omitted). By contrast,

“random, isolated, or fortuitous” contacts, Keeton v. Hustler

Magazine, Inc., 465 U.S. 770, 774 (1984), or the “unilateral

activity of another party or a third person,” Hanson v. Denckla,

357 U.S. 235, 253 (1958), do not give rise to personal

jurisdiction.

Second, a plaintiff’s claim must “must arise out of or relate

to the defendant’s contacts with the forum.” Ford Motor Co., 592

U.S. at 359 (internal quotation marks omitted). While this means

there must be an “affiliation” or a “relationship” between the

contacts and the controversy, the Supreme Court has clarified that

the plaintiff need not show that its claim “came about because of

the defendant’s in-state conduct.” Id. at 361-63 (emphasis added)

(rejecting “causation-only approach”).

Third, the court must inquire into whether the exercise of

personal jurisdiction would be “constitutionally reasonable.”

Consulting Eng’rs Corp. v. Geometric Ltd., 561 F.3d 273, 279 (4th

Cir. 2009). Relevant to this inquiry are “(1) the burden on the

defendant of litigating in the forum; (2) the interest of the forum

state in adjudicating the dispute; (3) the plaintiff’s interest in

obtaining convenient and effective relief; (4) the shared interest

of the states in obtaining efficient resolution of disputes; and

(5) the interests of the states in furthering substantive social

policies.” Id. (citing Burger King Corp., 471 U.S. at 477).

“Under Rule 12(b)(2), a defendant must affirmatively raise a

personal jurisdiction challenge, but the plaintiff bears the

burden of demonstrating personal jurisdiction at every stage

following such a challenge.” Grayson v. Anderson, 816 F.3d 262,

267 (4th Cir. 2016). A plaintiff’s burden varies “according to

the posture of a case and the evidence that has been presented to

the court.” Id. at 268. Where a court relies on “only the parties’

motion papers, affidavits attached to the motion, supporting legal

memoranda, and the allegations in the complaint, a plaintiff need

only make a prima facie showing of personal jurisdiction to survive

the jurisdictional challenge.” Id. In this posture, the court

“must take the allegations and available evidence relating to

personal jurisdiction in the light most favorable to the

plaintiff.” Id.

B. Defendants’ Rule 12(b)(2) Motions

Brewer and Carrier411 argue first that general jurisdiction

cannot apply because they are not essentially at home in the forum.

(Doc. 10 at 3; Doc. 11 at 6.) They are correct, as the complaint

does not allege that Brewer is domiciled in North Carolina or that

Carrier411 is incorporated or has its principal place of business

in the state. Daimler AG v. Bauman, 571 U.S. 117, 137 (2014).

As to specific jurisdiction, Brewer argues that he has not

purposefully availed himself of the privilege of conducting

activities within North Carolina. (Doc. 10 at 8.) He contends

that his “only tie” to the state is that his business, Carrier411,

republished data from the FMCSA that was accessed in North Carolina

by a third-party. (Id.) Moreover, he contends that contacts of

his business cannot be imputed to him. (Id. at 9.)

While a corporate officer is not “immune” from jurisdiction

where his putative contacts with the forum state were made on

behalf of his corporate entity, “the contacts of a company are not

attributed to a corporate agent for jurisdictional purposes.”

ePlus Tech., Inc. v. Aboud, 313 F.3d 166, 177 (4th Cir. 2002)

(citing Calder v. Jones, 465 U.S. 783, 790 (1984)). Here, the

complaint is devoid of any allegation that Brewer took any action

whatsoever, let alone any directed at North Carolina. Plaintiffs

haphazardly vacillate between using “Defendant” and “Carrier411,”

but they never attribute any activity to Brewer himself. See

Bryant v. Core Contents Restoration, LLC, No. 7:20-CV-40, 2021 WL

1207719, at *11 (E.D.N.C. Mar. 30, 2021) (rejecting attempt at

group pleading against defendants). Accordingly, the court may

not exercise personal jurisdiction over Brewer for Plaintiffs’

claims against him.

Carrier411 also contends that the court lacks personal

jurisdiction for the claims against it for similar reasons —

namely, that its website does not create sufficient contacts with

North Carolina to satisfy the purposeful availment prong. (Doc.

11 at 9-12.) In Fidrych, the Fourth Circuit reaffirmed its

adoption of the “sliding scale” approach for internet contacts as

set out in Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F.

Supp. 1119 (W.D. Pa. 1997). Fidrych v. Marriott Int’l, Inc., 952

F.3d 124, 141 (4th Cir. 2020) (citing ALS Scan, Inc. v. Digital

Serv. Consultants, Inc., 293 F.3d 707, 713-14 (4th Cir. 2002)).

Under the Zippo approach, a “passive Web site that does little

more than make information available to those who are interested

in it is not grounds for the exercise [of] personal jurisdiction.”

Id. (quoting Zippo, 952 F. Supp. at 1124). Clear-cut instances of

purposeful availment are where the defendant enters into long-term

contracts with forum residents “that involve the knowing and

repeated transmission of computer files over the Internet.” Id.

(quoting Zippo, 952 F. Supp. at 1124). In the middle ground where

the user “can exchange information with the host computer,” closer

review of the “level of interactivity and commercial nature of the

exchange” is required. Id. (quoting Zippo, 952 F. Supp. at 1124).

In Fidrych, the court analyzed whether Marriott’s mere

operation of a website accessible to South Carolina residents to

book reservations for its hotels was sufficient to constitute

purposeful availment. For this “middle ground” case, the court

reasoned that the level of interactivity between the user and the

website is hardly dispositive given that “on today’s internet, it

is an extraordinarily rare website that is not interactive at some

level.” Fidrych, 952 F.3d at 141-42, 141 n.5 (internal quotation

marks and brackets omitted) (emphasis in original). Instead, the

court must evaluate whether the defendant “(1) directs electronic

activity into the State, (2) with the manifested intent of engaging

in business or other interactions within the State, and (3) that

activity creates, in a person within the State, a potential cause

of action cognizable in the State’s courts.” Id. at 142 (quoting

ALS Scan, 293 F.3d at 714) (emphasis in original).

Plaintiffs’ only allegation of Carrier411’s contacts with the

forum state is its operation of a website and third-parties’ access

to it (Doc. 1 ¶¶ 5, 7), but they fail to allege how the website

operates in any detail. Carrier411 has filed its terms of service

with its motion to dismiss. (Doc. 11-2.) The terms show that

Carrier411 posts data provided to it by the FMCSA and that users

may access this data via a “subscription.” (Id. at 1-2; Doc. 11

at 14 (Carrier411 representing that it “operates a subscription-

based website”).) This is not inconsistent with the allegations

in the complaint.

Even were the court to assume that there is enough

interactivity between Carrier411’s website and its users such that

the website is in the “middle ground,” rather than the passive

side, of the Zippo spectrum, Plaintiffs fail to demonstrate a

sufficient jurisdictional link. To be sure, a subscription website

may create a somewhat durable interaction between a user and the

website — i.e., one more interactive than the “one-off” booking in

Fidrych. Fidrych, 952 F.3d at 142. However, the level of

interaction is limited to users paying to access data reports from

the FMCSA that Carrier411 merely posts on its website. Moreover,

as the Fourth Circuit admonished, the court must not “attach too

much significance on the mere fact of interactivity” lest it lose

sight of the core purposeful availment inquiry. Id. (focusing on

extent to which Marriott directed activities at the forum).

As to this inquiry, Plaintiffs have not alleged any fact to

even permit the inference that Carrier411 directs electronic

activity into North Carolina. They do not allege how many of

Carrier411’s subscribers are North Carolina residents. Young v.

New Haven Advoc., 315 F.3d 256, 259-60 (4th Cir. 2002) (considering

number of subscribers in the forum). They also do not allege that

the website has any North Carolina-focused features. Fidrych, 952

F.3d at 142-43 (considering presence of South Carolina on drop-

down menu of Marriott website). And they do not allege that

Carrier411 knew that Plaintiffs were North Carolina residents when

it posted the FMCSA data, or that North Carolina was the “focal

point” of the data. Calder v. Jones, 465 U.S. 783, 789 (1984) (in

libel case, considering whether the “brunt” of the injury would be

felt in the forum); Young, 315 F.3d at 263 (“The newspapers must,

through the Internet postings, manifest an intent to target and

focus on Virginia readers.”).

As in Fidrych, Carrier411’s contacts with North Carolina are

simply “too tenuous and too insubstantial to constitutionally

permit the exercise of specific jurisdiction” over it. Fidrych,

952 F.3d at 143. Defendants’ motions to dismiss for lack of

personal jurisdiction will therefore be granted.

III. CONCLUSION

For the reasons stated, therefore,

IT IS ORDERED that Defendants’ motions to dismiss (Docs. 7,

8) are GRANTED as to lack of personal jurisdiction and are DENIED

AS MOOT as to Plaintiffs’ failure to state a claim upon which

relief can be granted. Accordingly, the complaint is DISMISSED

WITHOUT PREJUDICE.

/s/ Thomas D. Schroeder

United States District Judge

July 18, 2024