SOUTHARD et al v. SOUTHARD
| ROBERT A SOUTHARD, JR and JESSICA ANNE CECCHI |
| DAVID SOUTHARD |
| 2:2023cv00437 |
| November 29, 2023 |
| US District Court for the District of Maine |
| NANCY TORRESEN |
| KAREN FRINK WOLF |
| P.I.: Other |
| 28 U.S.C. § 1332 Diversity-Notice of Removal |
| Plaintiff |
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Filing 18
ORDER terminating 15 Order to Show Cause. By MAGISTRATE JUDGE KAREN FRINK WOLF. (WOLF, KAREN)
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Filing 17
ORDER granting #16 Motion to Extend Time. An entry of appearance by a member of the bar of this Court on behalf of Plaintiffs and any Pro Hac Vice Certificate(s) shall be filed by January 18, 2024. By MAGISTRATE JUDGE KAREN FRINK WOLF. (WOLF, KAREN)
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| Filing 16 MOTION to Extend Time for Filing Pro Hac Vice Certificate by JESSICA ANNE CECCHI, ROBERT A SOUTHARD, JR (mnd) |
| Set Deadlines/Hearings : An entry of appearance by a member of the bar of this Court on behalf of Plaintiffs and any Pro Hac Vice Certificate(s) shall be filed by (1) 1/18/2024. (cjd) |
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Filing 15
ORDER TO SHOW CAUSE. No entry of appearance by an admitted member of this Court's bar having been filed on behalf of the Plaintiffs by the deadline, see ECF No. 14, the Plaintiffs are hereby ORDERED to show cause in writing no later than January 25, 2024, why this case should not be dismissed for lack of prosecution. (Set Deadline: Show Cause Response due by 1/25/2024.) By MAGISTRATE JUDGE KAREN FRINK WOLF. (MGW)
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Filing 14
ORDER regarding appearances by counsel and ORDER granting #13 Motion to Extend Time. In this transferred matter, consistent with Local Rule 83.1(c), counsel admitted as a member of the bar of this Court shall enter an appearance on behalf of the Plaintiffs by January 8, 2024. Following appearance(s) by counsel, the Court will set a date for Defendants to answer or otherwise respond to Plaintiffs' Complaint. To the extent counsel not admitted to the bar of this Court wish to appear for any party in the future, the required Certificate(s) to Appear Pro Hac Vice shall be filed pursuant to Local Rule 83.1(c)(1). By MAGISTRATE JUDGE KAREN FRINK WOLF. (WOLF, KAREN)
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| Reset Deadlines per Order #14: Pro Hac Vice Certificate due by 1/8/2024. The Certification for Admission Pro Hac Vice form can be downloaded from our website at #http://www.med.uscourts.gov/forms. (slg) |
| Filing 13 MOTION to Extend Time to File Pro Hac Vice Certificate by DAVID SOUTHARD Responses due by 12/27/2023. (PRATT, NEAL) |
| Filing 12 DIVERSITY DISCLOSURE STATEMENT by DAVID SOUTHARD. (PRATT, NEAL) |
| Filing 11 NOTICE of Appearance by NEAL F. PRATT on behalf of DAVID SOUTHARD (PRATT, NEAL) |
| Set Deadlines: Per Local Rule 7.1 Notice of Interested Parties or Corporate Disclosure Statement due by 12/7/2023. (slg) |
| Set Deadlines:Maine has transitioned to the NextGen ECF filing system; therefore, to complete the admissions process, Attorney must register for a PACER account and/or request the appropriate e-filing rights in the District of Maine via PACER at www.pacer.uscourts.gov by 12/7/2023. NOTE: Counsel appearing Pro Hac Vice MUST click on the PRO HAC VICE link when requesting e-filing rights via PACER. For more details on NextGen/PACER go to our website at www.med.uscourts.gov. Pro Hac Vice Certificate due by 12/7/2023. The Certification for Admission Pro Hac Vice form can be downloaded from our website at #http://www.med.uscourts.gov/forms. (slg) |
| Filing 10 Case transferred in from District of South Carolina; Case Number 4:23-cv-04056. Original file certified copy of transfer order and docket sheet received. |
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Filing 8
TEXT ORDER Defendant David Southard filed a #4 motion to dismiss for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2) and for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiff #5 responded, and David Southard #6 replied. Defendant received non-probate assets from his brother, Robert A. Southard, Sr. ("Decedent"). Plaintiff(s), Decedent's children, claim this receipt was wrongful and initiated this lawsuit. Defendant's pleadings amply address the governing law as it relates to establishing personal jurisdiction and present a worthy analysis connecting the relevant law to the facts present. However, while the Court does not question the reputability of Defendant's declaration (ECF No. #4 at Exhibit 3), it does draw attention to the fact that the most pertinent factual allegations relied upon by Defendant source from this exhibit. (In summary, the exhibit proclaims that Defendant owns no property, real or personal, in South Carolina, has not been in the state for over twenty-five years, and has no connection to the state other than receiving non-probate assets from his brother's financial account in Myrtle Beach, South Carolina). Plaintiff's response fails to present any legal standards relating to establishing personal jurisdiction. Rather, Plaintiff presents that the Court should afford Plaintiff a "fair opportunity to present to the court the relevant facts" and expresses a desire "to further explore Defendant's contact with South Carolina, and any efforts he has made to retrieve any personal property that would belong to Decedent's estate from the safety deposit box at the Myrtle [B]each First Citizens Bank." ECF No. #5 at 4, 6. This Court is keenly aware of Plaintiff's prior deposition of Defendant in a separate State Court case focused on Decedent's estate, which the case before this Court similarly revolves around. ECF No. #5 at 1. Most relevant in the deposition is Defendant stating that he has possession of the safety deposit box key for Decedent's safety deposit box at the Myrtle Beach First Citizens Bank and that has he has received funds held by the Decedent at the same bank. Aside from this portion of testimony, it does not appear that the deposition at all ties Defendant David Southard to the state of South Carolina. "As with many pretrial motions, a court has broad discretion to determine the procedure that it will follow in resolving a Rule 12(b)(2) motion." Grayson v. Anderson, 816 F.3d 262, 268 (4th Cir. 2016). The plaintiffs burden in establishing jurisdiction varies according to the posture of a case and the evidence that has been presented to the court. Id. As to a "preponderance of the evidence" standard, such a standard does not demand an evidentiary hearing, it attaches once the district court has "afford[ed] the parties a fair opportunity to present both the relevant jurisdictional evidence and their legal arguments," Id., using "procedures that provide the parties with a fair opportunity to present to the court the relevant facts." Id. at 269. However, the Fourth Circuit has explained that when a district court, in its discretion, decides to look "only at the initial court filings, 'a plaintiff need only make a prima facie showing' that personal jurisdiction exists." Id. at 268. When considering a case at such a posture, "the court must construe all relevant pleading allegations in the light most favorable to the plaintiff, assume credibility, and draw the most favorable inferences for the existence of jurisdiction." Wallace v. Yamaha Motors Corp, U.S.A., No. 19-2459, 2022 WL 61430, at *1 (4th Cir. Jan. 6, 2022); In re Celotex Corp., 124 F.3d 619, 628 (4th Cir. 1997). "In a personal jurisdiction analysis, (1) a state's long-arm statute must authorize the exercise of jurisdiction under the facts presented, and (2) the statutory assertion of personal jurisdiction must comply with due process." Wallace v. Yamaha Motors Corp, U.S.A., No. 19-2459, 2022 WL 61430, at *2 (4th Cir. Jan. 6, 2022). "Because South Carolina has interpreted its long-arm statute to extend personal jurisdiction to the constitutional limits imposed by federal due process, our inquiry must focus on due process." See Foster v. Arletty 3 Sarl, 278 F.3d 409, 414 (4th Cir. 2002) (citation omitted); Sonoco Prods. Co. v. Inteplast Corp., 867 F. Supp. 352, 354 (D.S.C. 1994) ("Under South Carolina law, the first requirement [of personal jurisdiction] collapses into the second."). When conducting a due process analysis, a court may exercise personal jurisdiction "if the defendant has 'minimum contacts' with the forum, such that to require the defendant to defend its interest in that state 'does not offend traditional notions of fair play and substantial justice.'" Carefirst of Maryland, Inc. v. Carefirst Pregnancy Centers, Inc., 334 F.3d 390, 397 (4th Cir. 2003) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)); see World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 29192 (1980) (illuminating that this principle protects... defendant[s] against the burdens of litigating in a distant or inconvenient forum and "acts to ensure that the States through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system"). Personal jurisdiction may come by way of general or specific jurisdiction. General jurisdiction, for an individual, focuses primarily on the individual's domicile. Daimler AG v. Bauman, 571 U.S. 117, 137, 134 S. Ct. 746, 760, 187 L. Ed. 2d 624 (2014). Plaintiff and Defendant do not dispute that Defendant David Southard is a resident of Maine. ECF No. #1 at 7; ECF No. #4 at 5. Accordingly, Defendant's domicile certainly does not provide this Court with general jurisdiction. However, this Court may still exercise general jurisdiction if defendant's "contacts or activities" were "continuous and systematic" enough to justify the exercise of general jurisdiction over claims unrelated to those contacts. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 131 S. Ct. 2846, 2849, 180 L. Ed. 2d 796 (2011).Plaintiff has alleged that "Defendant has been unjustly enriched through the receipt of Decedent's non-probate assets, some of which were undisputedly held in a South Carolina financial institution at the time Defendant wrongfully received them." ECF No. #5 at 4. Plaintiff also provides that Defendant has "previously testified that he was in possession of Decedent's safety deposit box key for a safety deposit at the First Citizens Bank located in Myrtle Beach, South Carolina." Id. Even when viewing the presented facts "in the light most favorable to the plaintiff," this Court cannot conclude Plaintiff has met the requisite prima facie showing for this Court to claim general jurisdiction over the Defendant. Plaintiff's alleged facts do not provide any evidence of Defendant undertaking to perform any activities within the state of South Carolina. Rather, Plaintiff's negligible factual allegations stem from activities performed by Decedent. Such facts truly present almost no existing "contacts or activities," and certainly do not rise to the level of being considered "continuous and systematic." To hold otherwise would ignore "notions of fair play and substantial justice." Accordingly, this Court cannot exercise general jurisdiction over Defendant David Southard. As to specific jurisdiction, for a court to "have specific personal jurisdiction over a defendant, the defendant must have 'purposefully established minimum contacts in the forum State' such 'that [it] should reasonably anticipate being haled into court there.'" Pandit v. Pandit, 808 F. App'x 179, 184 (4th Cir. 2020) (citing Perdue Foods LLC v. BRF S.A., 814 F.3d 185, 189 (4th Cir. 2016) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985))). To determine whether specific jurisdiction lies in the forum state, "we consider (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." Perdue Foods LLC v. BRF S.A., 814 F.3d 185, 189 (4th Cir. 2016) (quoting ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 712 (4th Cir.2002) (internal quotation marks omitted). Plaintiff must meet each prong of this test, failure to meet the first prong prevents further inquiry into specific jurisdiction. Id/; Consulting Engineers Corp. v. Geometric Ltd., 561 F.3d 273, 278 (4th Cir. 2009). Plaintiff does not argue or allege in any manner that Defendant has "purposely availed" himself of any privileges or benefits of South Carolina or its laws. Rather, as discussed above, the factual allegations presented by Plaintiff stem chiefly for Decedent's actions, not Defendant's. Significant law has been dedicated to identifying factors that a court may consider when analyzing "purposeful availment." However, Plaintiff does not present any law or provide any facts which this Court can construe to be so impactful under a factor analysis that this Court may conclude Plaintiff has made the requisite prima facie showing (To determine whether a defendant purposefully availed himself of the forum state, courts look at a variety of factors, including (a) whether the defendant maintains offices or agents in a foreign state; (b) whether the defendant owns property in the forum state; (c) whether the defendant reached into the forum state to solicit or initiate business; (d) whether the defendant deliberately engaged in significant or long-term business activities in the forum state; (e) whether the parties contractually agreed that the law of the forum state would govern disputes; (f) whether the defendant made in-person contact with the resident of the forum in the forum state regarding the business relationship; (g) the nature, quality, and extent of the parties' communications about the business being transacted; and (h) whether the performance of contractual duties was to occur within the forum state. Id.). Therefore, this
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| Filing 7 Local Rule 26.01 Answers to Interrogatories by Jessica Anne Cecchi, Robert A Southard, Jr.(Powell, John) [Transferred from South Carolina on 11/29/2023.] |
| Filing 6 REPLY to Response to Motion re #4 MOTION to Dismiss Response filed by David Southard. (Frierson, Sarah) (Main Document 6 replaced on 8/31/2023 with corrected document as requested by and provided by filer) (hcic, ). [Transferred from South Carolina on 11/29/2023.] |
| Filing 5 RESPONSE in Opposition re #4 MOTION to Dismiss Response filed by Jessica Anne Cecchi, Robert A Southard, Jr.Reply to Response to Motion due by 9/5/2023 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Attachments: #1 Exhibit Deposition of David Southard)(Powell, John) [Transferred from South Carolina on 11/29/2023.] |
| Filing 4 MOTION to Dismiss by David Southard. Response to Motion due by 8/29/2023. (Attachments: #1 Exhibit A - Summons and Complaint (Southard, et al. v. Young, No. 2019-CP-26-05896) ) filed September 18, 2019, #2 Exhibit B - Order (Southard, et al. v. Young, No. 2019-CP-26-05896) filed July 28, 2023, #3 Exhibit C - Declaration of David Southard) (hcic, ) [Transferred from South Carolina on 11/29/2023.] |
| Filing 3 Local Rule 26.01 Answers to Interrogatories by David Southard.(hcic, ) [Transferred from South Carolina on 11/29/2023.] |
| Filing 1 NOTICE OF REMOVAL from Horry County Court of Common Pleas, case number 2023-CP-26-04476 (filing fee $402 receipt number ASCDC-11268035), filed by David Southard. (Attachments: #1 State Court Documents) (hcic, ) [Transferred from South Carolina on 11/29/2023.] |
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