United States District Court, E.D. Missouri, Eastern Division
OPINION, MEMORANDUM AND ORDER
HENRY EDWARD AUTREY, District Judge.
This matter is before the Court on Defendant's Motion to Dismiss, [Doc. No. 5]. Plaintiff has failed to respond. For the reasons set forth below, Defendant's motion to dismiss is granted.
Plaintiff filed this action in the Circuit Court of St. Louis County, Missouri alleging that it is the assignee of Dr. Michael Johnson, Michele Johnson and Apple Medical Center, S.C.'s cause of action against Defendant. Plaintiff seeks damages from the Defendant alleging liable per se, defamation and copyright infringement. Defendant removed this action pursuant to the Court's diversity of citizenship jurisdiction, 28 U.S.C §1332. Defendant is a citizen of the State of North Carolina and Plaintiff is a Missouri Limited Liability Company with its principal place of business in the State of Missouri.
Facts and Background
Plaintiff makes the following allegations in the Complaint: Dr. Michael Johnson is a practitioner of Chiropractic medicine and practices out of Apple Medical Clinic, S. C. (Clinic) located in Appleton, Wisconsin. The Clinic also engages in marketing services for other chiropractors on a national level.
Based upon therapies and protocols developed for patients suffering from fibromyalgia and thyroid disorders, Plaintiff Johnson began marketing a business Method to other chiropractors via the internet.
Defendant presented a seminar in Texas, during which it is alleged that he made intentionally false statements about Dr. Michael Johnson. A video of that seminar is available for purchase on Defendant's website. Plaintiff contends Defendant has committed libel and slander against Dr. Michael Johnson, Michele Johnson and Apple Medical Clinic, S.C.
Rule 12(b)(2) of the Federal Rules of Civil Procedure authorizes a preanswer motion to dismiss, such as filed here, for "lack of personal jurisdiction." Fed.R.Civ.P. 12(b)(2).
"To allege personal jurisdiction, a plaintiff must state sufficient facts in the complaint to support a reasonable inference that the defendants can be subjected to jurisdiction within the state.'" Wells Dairy, Inc. v. Food Movers Int'l, Inc., 607 F.3d 515, 518 (8th Cir.) (quoting Dever v. Hentzen Coatings, Inc., 380 F.3d 1070, 1072 (8th Cir.2004)), cert. denied, ___ U.S. ___, 131 S.Ct. 472 (2010). "If the defendant controverts or denies jurisdiction, the plaintiff bears the burden of proving facts supporting personal jurisdiction." Id. Its "showing must be tested, not by the pleadings alone, but by the affidavits and exhibits presented with the motions and in opposition thereto." Id. (internal quotation marks omitted). Dairy Farmers, 702 F.3d at 474-75 (8th Cir.2012); Pangaea, Inc. v. Flying Burrito, L.L.C., 647 F.3d 741, 744-45 (8th Cir.2011) ("Where, as here, the district court does not hold a hearing and instead relies on pleadings and affidavits, ... the court must look at the facts in the light most favorable to the nonmoving party, and resolve all factual conflicts in favor of that party.'" (quoting Dakota Indus., Inc. v. Dakota Sportswear, Inc., 946 F.2d 1384, 1387 (8th Cir.1991), with internal citations omitted).
Although the Court may consider affidavits and other matters outside of the pleadings on a Rule 12(b)(2) motion, the pleader's burden, in the absence of an evidentiary hearing, is only to make a "minimal" prima facie showing of personal jurisdiction, and the Court "must view the evidence in the light most favorable to the [pleader] and resolve all factual conflicts in its favor in deciding whether the [pleader] has made the requisite showing." K-V Pharm. Co. v. Uriach & CIA, S.A., 648 F.3d 588, 581-82 (8th Cir.2011). Notwithstanding that facts are viewed in the light most favorable to the pleader, "[t]he party seeking to establish the court's in personam jurisdiction carries the burden of proof, and the burden does not shift to the party challenging jurisdiction." Viasystems, Inc., 646 F.3d at 592 (quoting Epps v. Stewart Info. Servs. Corp., 327 F.3d 642, 647 (8th Cir.2003)). The Eighth Circuit Court of Appeals reviews de novo orders granting dismissals pursuant to Rule 12(b)(2). Johnson v. Arden, 614 F.3d 785, 793 (8th Cir.2010).
The exercise of personal jurisdiction is also only permissible when it comports with due process. See, e.g., K-V Pharm. Co., 646 F.3d at 592.FN3 "Due process requires that a defendant have certain minimum contacts' with the forum state for personal jurisdiction to be exercised." Myers v. Casino Queen, Inc., 689 F.3d 904, 911 (8th Cir.2012) (citing International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). More specifically,
Contacts with the forum state must be sufficient that requiring a party to defend an action would not "offend traditional notions of fair play and substantial justice." [ International Shoe Co., 326 U.S.] at 316, 66 S.Ct. 154, 90 L.Ed. 95 (internal quotation marks and citation omitted). "The substantial connection' between the defendant and the forum State necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum State." Asahi Metal Indus. Co. v. Super. Ct. of Cal., 480 U.S. 102, 112, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (internal citations omitted).
We developed a five-factor test to evaluate whether a defendant's actions are sufficient to support personal jurisdiction: (1) the nature and quality of the contacts with the forum state; (2) the quantity of those contacts; (3) the relationship of those contacts with the cause of action; (4) [the state's] interest in providing a forum for its residents; and (5) the convenience or inconvenience to the parties. See, e.g., Precision Const. Co. v. J.A. Slattery Co., Inc., 765 F.2d 114, ...