2020 WL 1264177

United States District Court, M.D. Georgia, Columbus Division.
Emmett L. WILLIAMS, Plaintiff,
v.
Clay D. LAND, et al., Defendants.
CASE NO.: 4:19-CV-077 (LAG)
|
Signed 03/16/2020
Attorneys and Law Firms
Emmett L. Williams, Columbus, GA, pro se.
Jason W. Blanchard, US Attorneys Office, Augusta, GA, for Defendants Clay D. Land, Judge Gerald Bard Tjoflat, Judge Charles R. Wilson, Judge Kevin C. Newsom, Judge Peter T. Fay, Judge Julie E. Carnes.
Clayton M. Adams, Columbus, GA, for Defendant Brooks Trucking Company Inc. of Memphis.
John Thomas Sparks, Atlanta, GA, for Defendants Canal Insurance Company, Austin & Sparks PC, John T. Sparks, Sr.
Mark Lefkow, Atlanta, GA, for Defendants Richard A. Marchetti, Brown & Adams LLC, Clayton M. Adams, Nall & Miller LLP, Mark D. Lefkow.
Robert B. Shapiro, Atlanta, GA, for Defendant Judge William C. Rumer.

ORDER
LESLIE A. GARDNER, JUDGE
*1 Before the Court are the following motions:
• Defendants Brown & Adams, LLC, Clayton M. Adams, Mark D. Lefkow, and Nall & Miller, LLP’s (collectively Brown & Adams Defendants) Motion to Dismiss or, Alternatively, for Summary Judgment (Doc. 4);
• Brown & Adams Defendants’ Motion to Restrict Future Court Filings by Plaintiff (Doc. 6);
• Defendants Canal Insurance Company, Austin & Sparks, P.C., and John T. Sparks, Sr.’s (collectively Canal Insurance Defendants) Motion for Permanent Injunction to Restrict Future Court Filings (Doc. 11);
• Defendant Brooks Trucking Company Inc. of Memphis’s (Brooks Trucking) Motion to Dismiss or, Alternatively, for Summary Judgment (Doc. 13);
• Brooks Trucking’s Motion to Restrict Future Court Filings by Plaintiff (Doc. 16);
• Canal Insurance Defendants’ Motion to Dismiss (Doc. 17);
• Plaintiff Emmett L. Williams’ Motion for Summary Judgment (Doc. 27);
• Defendant Judge William C. Rumer’s Motion to Dismiss (Doc. 44); and
• Defendants U.S. Court of Appeals Judges Julie E. Carnes, Peter T. Fay, Kevin C. Newsom, Gerald B. Tjoflat, and Charles R. Wilson and U.S. District Court Judge Clay D. Land’s (collectively Federal Judicial Defendants) Motion to Dismiss (Doc. 59).
For the reasons provided below, Defendants’ Motions (Docs. 4, 6, 11, 13, 16, 17, 44, 59) are GRANTED, and Plaintiff’s Motion (Doc. 27) is DENIED as moot.

PROCEDURAL BACKGROUND
On May 14, 2019, pro se Plaintiff Emmett L. Williams initiated the instant action. (Doc. 1.) Plaintiff’s claims arise from four previous lawsuits and their respective appeals. (Id.); see generally Williams v. Brooks Trucking Co. Inc. of Memphis, 757 F. App’x 790 (11th Cir. 2018); Williams v. Brooks Trucking Co. Inc. of Memphis, No. 4:17-CV-58 (CDL), 2017 WL 2434459 (M.D. Ga. June 5, 2017), aff’d, 757 F. App’x 790. Plaintiff asserts claims against Defendants U.S. District Court Judge Clay D. Land; U.S. Court of Appeals Judges Julie E. Carnes, Peter T. Fay, Kevin C. Newsom, Gerald B. Tjoflat, and Charles R. Wilson; Brooks Trucking Company Inc. of Memphis; Canal Insurance Company; the Estate of Richard A. Marchetti; Judge William C. Rumer of the Superior Court of Muscogee County, Georgia; Brown & Adams, LLC; Clayton M. Adams; Austin & Sparks, P.C.; John T. Sparks, Sr.; Nall & Miller, LLP; Mark D. Lefkow; U.S. President Donald J. Trump; and the United States of America. (Doc. 1 at 1.)

On May 22, 2019, the Brown & Adams Defendants filed a Motion to Dismiss, or Alternatively for Summary Judgment1 and a Motion to Restrict Future Court Filings by Plaintiff. (Docs. 4, 6.) On May 31, 2019, the Canal Insurance Defendants filed a Motion for Permanent Injunction to Restrict Future Court Filings, and Brooks Trucking filed a Motion to Dismiss or, Alternatively, for Summary Judgment. (Docs. 11, 13.) On June 3, 2019, Brooks Trucking filed a Motion to Restrict Future Court Filings by Plaintiff, and the Canal Insurance Defendants filed a Motion to Dismiss. (Docs. 16, 17.) On June 10, 2019, Plaintiff filed a consolidated response to the Brown & Adams Defendants, Brooks Trucking, and Canal Insurance Defendants’ Motions. (Doc. 20.) That same day, the Brown & Adams Defendants replied. (Doc. 21.) Brooks Trucking and the Canal Insurance Defendants replied on June 12 and 13, 2019, respectively. (Docs. 25–26.)

*2 On June 17, 2019, Plaintiff moved for summary judgment. (Doc. 27.) The Brown & Adams Defendants, the Canal Insurance Defendants, and Brooks Trucking responded on June 17 and 19, 2019. (Docs. 29–31.) On July 2, 2019, Judge Rumer filed a Motion to Dismiss. (Docs. 44.) Plaintiff did not specifically respond to Judge Rumer’s Motion to Dismiss. Finally, on September 9, 2019, the Federal Judicial Defendants filed a Motion to Dismiss. (Doc. 59.) Plaintiff responded on September 17, 2019, and the Federal Judicial Defendants replied on October 4, 2019. (Doc. 60.) On October 7, 2019, Plaintiff filed an unpermitted surreply. (Doc. 64.) Thus, all the instant Motions have been fully briefed and are, therefore, ripe for review. M.D. Ga. L.R. 7.3.1(A).

Between June 10, 2019 and February 2, 2020, Plaintiff also filed various papers docketed by the Clerk of Court as a memorandum, brief, or demand. (See Docs. 23–24, 28, 32–33, 35, 37, 40, 42, 46–47, 65, 68, 70, 72–73, 76–80, 84–85, 87–92, 94–95.) In these filings, Plaintiff generally asks the Court to deny all of Defendants’ pending Motions and requests “mandatory due process of the law,” “mandatory due process constitutional federal jury trial,” “mandatory equal justice under the law,” and “mandatory default summary judgment against all of the [D]efendants for the mandatory sum of $3.6 billion.” (See, e.g., Doc. 23 at 8 (internal quotation marks omitted).) Plaintiff does not appear to raise any new factual allegations and merely restates those already contained in his Complaint. (See Doc. 1.)

LEGAL STANDARD
To survive a dismissal under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face if the complaint alleges enough facts to “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. A complaint must plead “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence” of the defendant’s liability. Twombly, 550 U.S. at 556. Although a court must “take the factual allegations in the complaint as true and construe them in the light most favorable to the plaintiffs,” it is not required “to accept the labels and legal conclusions in the complaint as true.” Edwards v. Prime, Inc., 602 F.3d 1276, 1291 (11th Cir. 2010); see also Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). At bottom, “the factual allegations in the complaint must possess enough heft to set forth a plausible entitlement to relief.” Edwards, 602 F.3d at 1291 (punctuation omitted). “[A] plaintiff armed with nothing more than conclusions” cannot “unlock the doors of discovery.” Iqbal, 556 U.S. at 678–79.

In addition to Plaintiff’s Complaint, the Court “may also consider documents attached to the motion to dismiss if they are referred to in the complaint, central to the plaintiff’s claim, and of undisputed authenticity.” Hi-Tech Pharm., Inc. v. HBS Int’l Corp., 910 F.3d 1186, 1189 (11th Cir. 2018) (citing Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002) and Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997)). In particular, the Court considers the various state and federal court docket filings and orders attached to Defendants’ Motions, as Plaintiff refers to these orders throughout his Complaint, they are central to his claims, and Plaintiff does not dispute their authenticity.

FACTUAL BACKGROUND

I. Williams I
On September 13, 2006, Plaintiff initiated a personal injury action in the Superior Court of Muscogee County, Georgia (Williams I). (Doc. 13-1.) Plaintiff alleged that on September 17, 2004, an employee of Brooks Trucking collided with a third-party driver who then collided with Plaintiff. (Id. ¶¶ 6–8.) On February 2, 2011, Plaintiff voluntarily dismissed his personal injury action without prejudice. (Doc. 13-2 at 2.)

II. Williams II
*3 On August 3, 2011, Plaintiff filed a renewal action under O.C.G.A. § 9-2-61 in the Superior Court of Muscogee County (Williams II) based on the same underlying facts as Williams I. (Doc. 13-3.) The case proceeded to trial before Judge Rumer. (See Doc. 1 at 7.) Canal Insurance insured Brooks Trucking and provided defense counsel Richard A. Marchetti of Brown & Adams, LLC to represent Brooks Trucking in the matter at trial. On October 13, 2012, the jury returned a verdict in Brooks Trucking’s favor. (Doc. 13-4.) The Court entered judgment on October 15, 2012. (Doc. 13-5.)

On November 9, 2012, Plaintiff filed a motion for new trial, arguing that the verdict was contrary to law and against the weight of the evidence. (Doc. 13-6 ¶¶ 1–3.) On April 9, 2013, Plaintiff, proceeding pro se, filed a motion for an appeal alleging that defense counsel Marchetti had improper communication with jurors during their deliberative process. (Doc. 13-8 ¶¶ 5–8.) Based on this allegedly improper communication, Plaintiff also filed an amended motion for new trial seeking to set aside the jury’s verdict on July 16, 2013. (Doc. 13-9.)

On September 18, 2013, Judge Rumer denied Plaintiff’s motions for new trial. (Doc. 13-11.) Plaintiff filed a notice of appeal on October 18, 2013. (Doc. 13-12.) On October 30, 2014, the Georgia Court of Appeals dismissed Plaintiff’s appeal for failure to pay the requisite filing fees. (Doc. 13-13 at 2.)

III. Williams III
On August 4, 2015, Plaintiff, proceeding pro se, filed suit in the Superior Court of Muscogee County against Brooks Trucking and Marchetti (Williams III). (Doc. 13-14.) Plaintiff alleged that the defendants violated his constitutional rights by denying him “a Fair, Equal, Just, and Impartial Trial on October 13, 2012” when Marchetti improperly communicated with jurors in Williams II. (Doc. 13-14 at 1, 5 (underline in original).) On September 11, 2015, Brooks Trucking moved to dismiss Plaintiff’s complaint for failure to state a claim. (Doc. 13-16.)

On October 27, 2015, Judge Rumer granted Brooks Trucking’s motion to dismiss. (Doc. 4-2.) Therein, Judge Rumer found that Plaintiff’s complaint failed to state a claim because Marchetti was not a state actor subject to liability under 42 U.S.C. § 1983, Plaintiff’s claims were time-barred, and “the undisputed evidence” showed that no jury tampering had occurred. (Id. at 11–14.) In that same order, Judge Rumer also denied Plaintiff leave to amend his complaint to add Canal Insurance as a defendant. (Id. at 13.) On November 10, 2015, Plaintiff filed a notice of appeal. (Doc. 13-23.) On January 10, 2017, the Georgia Court of Appeals affirmed Judge Rumer’s dismissal order. (Doc. 4-3.) Plaintiff moved the Georgia Court of Appeals to reconsider on January 20, 2017, (Doc. 13-28), which the court denied on February 16, 2017, (Doc. 13-36).

IV. Williams IV
On March 10, 2017, Plaintiff, proceeding pro se, filed a complaint in the U.S. District Court for the Middle District of Georgia, Columbus Division against Brooks Trucking, Marchetti, Canal Insurance, Judge Rumer, Brown & Adams, Clayton Adams, Austin & Sparks, P.C., John T. Sparks, Nall & Miller, LLP, and Mark D. Lefkow (Williams IV). (Doc. 13-38); see generally Williams, 2017 WL 2434459. Plaintiff alleged that the defendants violated his constitutional due process and Thirteenth Amendment rights and violated his rights under Title VII of the Civil Rights Act of 1964. (Doc. 13-38 at 1.) Specifically, Plaintiff alleged that Marchetti violated his rights by improperly communicating with the jurors in Williams II and that Judge Rumer violated his rights by denying his motion for new trial in Williams II and dismissing his complaint in Williams III. (Id. at 5–10, 12–13, 15–17.)

*4 On March 31, 2017, Brooks Trucking moved to dismiss Plaintiff’s complaint pursuant to Rule 12(b)(6) or, alternatively, for summary judgment. (Doc. 13-39.) Each of the other defendants also filed motions to dismiss Plaintiff’s complaint. On June 5, 2017, U.S. District Court Judge Clay D. Land granted the defendants’ motions to dismiss, and judgment was entered that same day. (Docs. 4-4, 13-49, 13-50); see Williams, 2017 WL 2434459. On June 9, 2017, Plaintiff filed a notice of appeal. (Doc. 13-51.)

On August 9, 2017, U.S. Court of Appeals for the Eleventh Circuit Judges Tjoflat, Wilson, and Carnes denied Plaintiff’s “Motions … for an En Banc Session and … for Summary Judgment for a Total of Five (5) Perfect (%) of the $180 Million Relief….” (Doc. 13-56.) On August 15, 2017, Plaintiff filed a motion for reconsideration, (Doc. 13-58), which Judges Tjoflat, Wilson, and Carnes denied on October 18, 2017, (Doc. 13-62). Finally, on November 13, 2018, the Eleventh Circuit affirmed Judge Land’s dismissal of Plaintiff’s complaint in Williams IV. (Doc. 4-6); see generally Williams, 757 F. App’x at 796. The three-judge panel of Judges Newsom, Fay, and Carnes found that Plaintiff’s claims against Judge Rumer were barred by absolute judicial immunity and his claims against the remaining defendants failed to state plausible claims for relief, as none of the defendants were state actors. Williams, 757 F. App’x at 794.

V. Current Action
On May 14, 2019, Plaintiff initiated the instant action. (See Docs. 1, 1-1.) Plaintiff filed a 254-page complaint with an additional 70 pages of exhibits and asserts claims against the Brown & Adams Defendants, Brooks Trucking, the Canal Insurance Defendants, the Estate of Richard A. Marchetti, Judge Rumer, the Federal Judicial Defendants, President Trump, and the United States. (Doc. 1 at 1.) While Plaintiff’s Complaint is difficult to decipher, he appears to raise the same factual allegations as in Williams IV—namely that Marchetti improperly communicated with jurors in Williams II and that Judge Rumer violated his rights by denying his motion for new trial in Williams II and dismissing his complaint in Williams III. (See, e.g., id. at 14–19, 24–25.) Plaintiff also alleges that Judge Land violated his rights by denying his motion for appointment of counsel and dismissing his complaint in Williams IV. (Id. at 65–76.) Plaintiff further alleges that Judges Tjoflat, Wilson, and Carnes violated his rights by denying his motions for an en banc hearing and for reconsideration and that Judges Newsom, Fay, and Carnes violated his rights by dismissing his appeal in Williams IV. (Id. at 112–136.)

Plaintiff appears to assert claims for due process violations; violations of his First Amendment, Thirteenth Amendment, and Fourteenth Amendment rights; and discrimination under Title VII of the Civil Rights Act of 1964. (Id. at 145–48.) Plaintiff also appears to assert claims for racketeering, mail fraud, theft by taking, and obstruction of justice. (See, e.g., id. at 78.) Plaintiff seeks monetary damages in the amount of $3.6 billion, a “constitutional jury’s pardon” or presidential pardon, and Judge Rumer’s resignation, termination, or impeachment. (Id. at 2.) With regard to Plaintiff’s constitutional claims, the Court construes Plaintiff’s claims as being brought pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

DISCUSSION

I. Res Judicata
Plaintiff’s claims against the Brown & Adams Defendants, Brooks Trucking, the Canal Insurance Defendants, and Judge Rumer are barred by res judicata. “The doctrine of res judicata, or claim preclusion, bars the parties to an action from litigating claims that were or could have been litigated in a prior action between the same parties.” Lobo v. Celebrity Cruises, Inc., 704 F.3d 882, 892 (11th Cir. 2013). For a plaintiff’s claims to be precluded, a defendant must establish four elements: “(1) the prior decision must have been rendered by a court of competent jurisdiction; (2) there must have been a final judgment on the merits; (3) both cases must involve the same parties or their privies; and (4) both cases must involve the same causes of action.” Id.

*5 In Williams IV, Plaintiff brought claims against all the Defendants in the instant action, except for the Federal Judicial Defendants, President Trump, and the United States. Judge Land dismissed Plaintiff’s claims against the Brown & Adams Defendants, Brooks Trucking, the Canal Insurance Defendants, and Marchetti under Rule 12(b)(6) for failure to state a claim. Williams, 2017 WL 2434459, at *4. While Judge Land dismissed Plaintiff’s claims to set aside Judge Rumer’s state court decisions under the Rooker-Feldman doctrine, Judge Land dismissed Plaintiff’s remaining claims against Judge Rumer under Rule 12(b)(6) as being barred by absolute judicial immunity.

Here, Plaintiff’s claims against the Brown & Adams Defendants, Brooks Trucking, the Canal Insurance Defendants, and Marchetti are barred by res judicata. First, the decision in Williams IV was undoubtedly rendered by a court of competent jurisdiction. Second, Judge Land’s dismissal order was a final judgment on the merits because the order was a Rule 12(b)(6) dismissal. Davis v. Davis, 551 F. App’x 991, 994 (11th Cir. 2014) (“[A]n order dismissing a claim under Rule 12(b)(6) is a final judgment on the merits for purposes of res judicata.”); see also Solis v. Glob. Acceptance Credit Co., 601 F. App’x 767, 770 (11th Cir. 2015) (“[T]he Supreme Court has flatly stated that the dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is a judgment on the merits.” (internal quotation marks omitted)); Fed. R. Civ. P. 41(b) (“Unless the dismissal order states otherwise, … any dismissal not under this rule—except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19—operates as an adjudication on the merits.”). While Plaintiff’s claims to set aside Judge Rumer’s state court decisions were dismissed for lack of subject matter jurisdiction under the Rooker-Feldman doctrine and Rule 12(b)(1), Judge Land dismissed Plaintiff’s remaining claims against Judge Rumer under Rule 12(b)(6), making that decision a final adjudication on the merits as well. Third, except for the Federal Judicial Defendants, President Trump, and the United States, both Williams IV and the instant action involve the same parties—i.e., Brooks Trucking, Marchetti, Canal Insurance, Judge Rumer, Brown & Adams, Clayton Adams, Austin & Sparks, John T. Sparks, Nall & Miller, and Mark D. Lefkow.

Finally, the causes of action in Williams IV and the present action are also the same. “A cause of action is the same for res judicata purposes if it arises out of the same nucleus of operative fact, or is based upon the same factual predicate, as a former action.” Lobo, 704 F.3d at 893 (internal quotation marks omitted). Plaintiff’s claims against the Brown & Adams Defendants, Brooks Trucking, Marchetti, the Canal Insurance Defendants, and Judge Rumer arise from the facts of Williams II and III and formed the basis for Plaintiff’s claims in Williams IV—namely, that Marchetti improperly communicated with jurors and Judge Rumer denied Plaintiff’s motion for a new trial and dismissed Plaintiff’s complaint. In the current iteration, Plaintiff does not raise any new factual allegations against the Brown & Adams Defendants, Brooks Trucking, Marchetti, the Canal Insurance Defendants, or Judge Rumer. Rather, Plaintiff’s factual allegations and claims are virtually identical to those raised in Williams IV. Thus, with the exception of the claims brought against the Federal Judicial Defendants, President Trump, and the United States, Plaintiff’s claims are barred by res judicata.2

II. Absolute Judicial Immunity
*6 Judge Rumer and the Federal Judicial Defendants also move to dismiss Plaintiff’s Complaint, arguing that Plaintiff’s claims are barred by absolute judicial immunity. (Doc. 44 at 4–5; Doc. 59 at 6–12.) “A judge is entitled to absolute judicial immunity from damages for acts taken while acting in his judicial capacity.” Shuler v. Duke, 792 F. App’x 697, 701 (11th Cir. 2019) (citing Sibley v. Lando, 437 F.3d 1067, 1070 (11th Cir. 2005)). To determine whether a judge “acted in his judicial capacity,” the Court must look “at the nature and function of [the judge’s] act, not the propriety of the act itself, and consider whether the nature and function of the particular act is judicial.” McCullough v. Finley, 907 F.3d 1324, 1330–31 (11th Cir. 2018). The Court therefore considers “(1) whether the act is one normally performed by judges, and (2) whether the complaining party was dealing with the judge in his judicial capacity.” Stevens v. Osuna, 877 F.3d 1293, 1304 (11th Cir. 2017) (citing Stump v. Sparkman, 435 U.S. 349, 362 (1978)). Because “[a] judge’s motivation is irrelevant to determining whether his act was judicial,” McCullough, 907 F.3d at 1331, “[a] judge is entitled to immunity even when his conduct ‘was in error, was done maliciously, or was in excess of his authority.’ ” Shuler, 792 F. App’x at 701 (quoting Stump, 435 U.S. at 356). Thus, “[a] judge acting within his judicial capacity is subject to liability only when he has acted in the clear absence of all jurisdiction.” Id. (internal quotation marks omitted).

With regard to Judge Rumer, in Williams IV, the Eleventh Circuit held that Judge Rumer was entitled to absolute judicial immunity as it pertained to his actions in Williams II and III. Williams, 757 F. App’x at 794 (“[T]he district court correctly concluded, absolute immunity protects Judge Rumer from liability for damages for acts committed within his judicial jurisdiction.”). Plaintiff does not raise any new factual allegations against Judge Rumer and simply restates the same allegations in his Complaint in Williams IV. Thus, Judge Rumer is entitled to absolute judicial immunity.

With regard to the Federal Judicial Defendants, Judge Land and the Circuit Judges are entitled to absolute judicial immunity. Plaintiff does not allege any facts plausibly demonstrating that any of Federal Judicial Defendants acted in a clear absence of jurisdiction. Nor does Plaintiff allege sufficient facts to demonstrate that any of the Federal Judicial Defendants’ acts were outside those normally performed by judges. Plaintiff’s allegations primarily concern Judge Land’s denial of Plaintiff’s motion to appoint counsel and June 5, 2017 dismissal order; Judges Tjoflat, Wilson, and Carnes’ August 9, 2017 denial of Plaintiff’s motion for an en banc session and October 18, 2017 denial of Plaintiff’s motion for reconsideration; and Judges Newsom, Fay, and Carnes’ November 13, 2018 opinion affirming Judge Land’s dismissal. (Doc. 1 at 68, 114.) None of these acts are outside the acts normally performed by judges. Thus, as each of the Federal Judicial Defendants were acting within their judicial capacity when they performed the complained-of acts, they are entitled to absolute judicial immunity. See Shuler, 792 F. App’x at 701.

III. Remaining Claims
To the extent that Plaintiff’s claims are not barred either by res judicata or absolute judicial immunity, the claims are subject to dismissal under Rule 12(b)(6) for failure to state a claim. With regard to Plaintiff’s Thirteenth Amendment claims, Plaintiff fails to allege sufficient facts demonstrating a plausible claim to relief. The Thirteenth Amendment provides that “[n]either slavery nor involuntary servitude, except as a punishment for crime … shall exist within the United States….” Because Plaintiff’s allegations fail to demonstrate that he was enslaved or subject to involuntary servitude, his Thirteenth Amendment claims fail to state a claim for which relief can be granted.

Plaintiff’s Title VII claims also fail to state a claim, as Plaintiff fails to allege that any Defendant employed him. Williams, 757 F. App’x at 794 (affirming dismissal of Plaintiff’s Title VII claims for failing to allege facts demonstrating “an employment relationship” between Plaintiff and any defendant).

*7 Plaintiff’s claims for racketeering and theft by taking appear to be based on Plaintiff being required to pay the filing fees in his various state and federal actions, and his mail fraud claims appear to be based on Defendants serving Plaintiff with documents throughout his prior actions. In Williams IV, the Eleventh Circuit held that “[n]one of [these] actions constitute unlawful conduct on the part of any Defendant, much less extortion, racketeering, or mail fraud.” Id. at 795 (citing 18 U.S.C. § 1951 (defining extortion), 18 U.S.C. § 1341 (defining mail fraud), and 18 U.S.C. § 1961 (defining racketeering activity)). Neither would these actions constitute an unlawful taking under Georgia law or obstruction of justice under federal law. See O.C.G.A. § 16-8-2 (defining theft by taking); 18 U.S.C. §§ 1501 et seq. Thus, Plaintiff’s racketeering, mail fraud, theft by taking, and obstruction of justice claims also fail to state a claim for which relief can be granted.

Finally, Plaintiff’s claims against President Trump and the United States fail to state a claim. Other than erroneously stating that the Federal Judicial Defendants are employees of President Trump, Plaintiff does not allege that President Trump or the United States took any action in this matter. The President is in the executive branch, which is separate and co-equal with the judicial branch. Thus, the President has no supervisory authority over the Federal Judicial Defendants. Moreover, “[t]he United States is generally immune from suit; it is subject to suit only insofar as it has waived its sovereign immunity.” Compagnoni v. United States, 173 F.3d 1369, 1370 n.3 (11th Cir. 1999) (citing United States v. Sherwood, 312 U.S. 584, 586 (1941)). Plaintiff has alleged nothing showing that the United States has waived its sovereign immunity in this case. Thus, Plaintiff’s claims against President Trump and the United States fail to state a claim.

IV. Injunction
The Brown & Adams Defendants, Brooks Trucking, and the Canal Insurance Defendants also move the Court to issue an order enjoining Plaintiff from filing any future pleadings based on the facts of this case and his four previous lawsuits. (Doc. 6-1 at 6; Doc. 11-1 at 5; Doc. 16-1 at 5.) Specifically, Defendants seek an injunction
(1) prohibiting Plaintiff from filing future complaints and motions against these Defendants, either in this action or in subsequent cases, absent filing by a lawyer or prior approval by the Court, and (2) excusing all Defendants from responding to new federal complaints and motions filed by Plaintiff, either in this action or in subsequent cases, other than Plaintiff’s response to Defendants’ motions to dismiss, unless and until the Court issues an order requiring a response or answer.
(Doc. 4-1 at 6; Doc. 11-1 at 5; Doc. 16-1 at 5.)

“Federal courts have both the inherent power and the constitutional obligation to protect their jurisdiction from conduct which impairs their ability to carry out Article III functions.” Procup v. Strickland, 792 F.2d 1069, 1073 (11th Cir. 1986) (per curiam). Pursuant to 28 U.S.C. § 1651(a), a district court may “enjoin litigants who are abusing the court system by harassing their opponents.” Harrelson v. United States, 613 F.2d 114, 116 (5th Cir. 1980) (per curiam).3 Section 1651(a) provides, “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” Under this authority, the Eleventh Circuit “has upheld pre-filing screening restrictions on litigious plaintiffs.” Martin-Trigona v. Shaw, 986 F.2d 1384, 1387 (11th Cir. 1993) (citing Copeland v. Green, 949 F.2d 390, 391 (11th Cir. 1991) and Cofield v. Ala. Pub. Serv. Comm’n, 936 F.2d 512, 517–18 (11th Cir. 1991)). Such restrictions “allow[ ] courts to safeguard not only ongoing proceedings, but potential future proceedings, as well as already-issued orders and judgments.” Maid of The Mist Corp. v. Alcatraz Media, LLC, 388 F. App’x 940, 942 (11th Cir. 2010) (per curiam). Whether a district court may restrict the filing of frivolous lawsuits must be assessed on a “case by case basis.” Cofield, 936 F.2d at 518. While the district court has “[c]onsiderable discretion” in fashioning such pre-filing screening restrictions, a plaintiff “cannot be completely foreclosed from any access to the court.” Procup, 792 F.2d at 1074.

*8 In order to obtain an injunction, the moving party must show:
(1) it has a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest.
Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1097 (11th Cir. 2004).

An injunction is appropriate in this matter. First, as Plaintiff’s claims against the Brown & Adams Defendants, Brooks Trucking, and the Canal Insurance Defendants were all barred by res judicata, Defendants showed a substantial likelihood of success on the merits. See Laosebikan v. Coca-Cola Co., 415 F. App’x 211, 215 (11th Cir. 2011). Second, without an injunction restricting Plaintiff from filing future lawsuits against them, Defendants will suffer irreparable injury by having to spend time, resources, and attention responding to Plaintiff’s baseless allegations against them. Third, Plaintiff would not be harmed as a result of a pre-filing screening restriction, as the restriction would simply require Plaintiff to submit his complaints to the Court for screening before being docketed and thus would not completely foreclose Plaintiff’s access to the courts. Finally, such an injunction would not be adverse to the public interest, as only Plaintiff is enjoined from potentially bringing further frivolous actions. Rather, the injunction would “prevent [a] single litigant[ ] from unnecessarily encroaching on the judicial machinery needed by others.” Procup, 792 F.2d at 1074. Thus, Defendants have shown that an injunction is appropriate in this case.

Moreover, the Eleventh Circuit has “expressly approved injunctions” requiring pre-screening of a plaintiff’s filings “where the district court has determined that the litigant is attempting to relitigate specific claims against specific defendants arising from the same set of factual circumstances that have been litigated and adjudicated in the past.” Higdon v. Fulton Cty., 746 F. App’x 796, 800 (11th Cir. 2018). In Traylor v. City of Atlanta, the court upheld an injunction restricting the plaintiff from filing additional complaints that attempted to relitigate specific claims arising from “the same set of factual circumstances” that had been litigated in the plaintiff’s previous three federal cases. 805 F.2d 1420, 1422 (11th Cir. 1986). In Riccard v. Prudential Insurance Co., the court upheld an injunction prohibiting the plaintiff from filing any new action against the defendant without first obtaining leave from the district court where the plaintiff, a former employee of the defendant, had brought at least three lawsuits against the defendant for the same underlying facts. 307 F.3d 1277, 1295 (11th Cir. 2002).

Here, as in Traylor and Riccard, Plaintiff raises, for the third time, the same baseless allegations against Defendants, which were dismissed in Williams III and IV and upheld on appeal. With each loss on his campaign of frivolity, Plaintiff simply repackages the same allegations as before, refiles his complaint—now totaling over 254 pages long—and adds any judge who rules against him as a new defendant. Because such abusive litigation tactics “impair[ ] [the Court’s] ability to carry out Article III functions” and impedes the “judicial machinery needed by others,” Procup, 792 F.2d at 1074, the Court is obligated to step in and stop any future abuses.

CONCLUSION
*9 For the reasons stated above, Plaintiff’s claims are either barred by res judicata, barred by absolute judicial immunity, or fail to state a claim for which relief can be granted. Therefore, Defendants’ Motions to Dismiss (Docs. 4, 13, 17, 44, 59) are GRANTED, and Plaintiff’s Complaint is DISMISSED with prejudice. Accordingly, Plaintiff’s Motion for Summary Judgment (Doc. 27) is DENIED as moot.

Furthermore, Defendants’ Motions for Injunctions (Docs. 6, 11, 16) are GRANTED. Accordingly, Plaintiff is ENJOINED from filing any new actions in the U.S. District Court for the Middle District of Georgia against Brown & Adams, LLC, Clayton M. Adams, Mark D. Lefkow, Nall & Miller, LLP, the Estate of Richard A. Marchetti, Canal Insurance Company, Austin & Sparks, P.C., John T. Sparks, Sr., and Brooks Trucking Company Inc. of Memphis or arising out of the 2006 automobile collision involving Brooks Trucking, without first receiving permission from the Court. If Plaintiff wishes to file an action, he must submit his complaint to the Clerk of Court with a copy of this Order. The Clerk will receive but will not file the complaint. The Clerk will submit the complaint to the Court for review and will file the same only if it is approved the Court.

SO ORDERED, this 16th day of March, 2020.

All Citations
Slip Copy, 2020 WL 1264177

Footnotes

1
On May 28, 2019, Defendant Estate of Richard A. Marchetti filed a Notice of Joinder in the Brown & Adams Defendants’ Motion to Dismiss (Doc. 4). As Marchetti and the Brown & Adams Defendants are represented by the same counsel and the grounds asserted in the Motion are equally applicable to Marchetti, Marchetti is considered joined as it relates to the Brown & Adams Defendants’ Motion.

2
The Brown & Adams Defendants, Brooks Trucking, Marchetti, and the Canal Insurance Defendants also alternatively argue that Plaintiff’s Complaint should be dismissed because these Defendants are not state actors under 42 U.S.C. § 1983 and because Plaintiff’s claims are barred by collateral estoppel. Because the Court has found that Plaintiff’s claims against these Defendants are barred by res judicata, the Court does not address Defendants’ alternative arguments.

3
Decisions of the former Fifth Circuit handed down prior to October 1, 1981 are binding precedent on the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1205, 1209 (11th Cir. 1981) (en banc).

2020 WL 1272116

United States District Court, S.D. West Virginia.
Clinton Eugene Gilley, as Administrator of the Estate of CARL DAVID GILLEY, Nicole Leigh Le, as Administrator of the Estate of CHRISTINE TARA WARDEN GILLEY, and Clinton Eugene Gilley and Nicole Leigh Le as Co-Administrators of the Estates of J.G. and G.G., minor children, Plaintiffs,
v.
C.H. ROBINSON WORLDWIDE, INC., J&TS TRANSPORT EXPRESS, INC., BERTRAM COPELAND, M&K TRUCK LEASING, LLC, and RIVER VALLEY CAPITAL INSURANCE, INC., Defendants.
CIVIL ACTION NO. 1:18-00536
|
Filed 03/16/2020

MEMORANDUM OPINION AND ORDER
David A. Faber Senior United States District Judge
*1 Pending before the court1 is defendant River Valley Capital Insurance, Inc.’s (“River Valley”) motion to dismiss for lack of personal jurisdiction. (ECF No. 98). For the reasons that follow, the motion to dismiss is GRANTED.

I. Procedural and Factual Background

A. The 2017 accident and plaintiffs’ claims against non-moving defendants
This lawsuit stems from an April 13, 2017 trucking accident that occurred in Mercer County, West Virginia. (See ECF No. 85 ¶ 18.) Plaintiffs allege that due to inexperience, poor training, and insufficient vehicle maintenance, defendant Bertram Copeland burned up the brakes on the tractor-trailer and failed to maintain control of the tractor-trailer. The tractor-trailer driven by defendant Copeland then crossed the median into oncoming traffic and struck the vehicle containing Carl David Gilley, Christine Gilley, and their children J.G. and G.G. (collectively referred to as the “Gilley family”). (Id.) Plaintiffs allege that defendant Copeland was employed by J&TS Transport Express, Inc. (“J&TS”) and that C.H. Robinson Worldwide, Inc. (“C.H. Robinson”) hired J&TS to transport goods in a tractor-trailer. (Id. ¶¶ 11, 13.) Plaintiffs also allege that the trailer involved in the accident was owned by M&K Leasing. (Id. ¶ 62.)

B. Plaintiffs’ claims against River Valley
Plaintiffs assert a negligence claim against River Valley (Count VII), averring that River Valley performed “services, including evaluating and screening new-hire drivers for J&TS, that River Valley knew, or should have known, were necessary for the protection of the motoring public, including plaintiffs” and that it “(a) failed to exercise reasonable care in performing those services; (b) Defendant River Valley’s performance increased the risk of harm to the Plaintiff; (c) One of the causes of the harm suffered is J&TS reliance on Defendant River Valley’s performance; and, (d) Defendant River Valley’s performance was the duty of the other to the Plaintiffs.” (Id. ¶ 67(a-d).) Plaintiffs also allege that River Valley was involved in a joint venture with some or all of the other named defendants. (Id. ¶ 68.)

C. River Valley’s motion to dismiss for lack of personal jurisdiction
On May 8, 2019, defendant River Valley filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction. (ECF No. 98.) River Valley argues that plaintiffs have not set forth allegations that would subject it to personal jurisdiction in West Virginia under the state’s long arm statute. (See ECF No. 99 (citing W. Va. Code §§ 56-3-33, 31D-15-1501(d)(1)).) It points out that plaintiffs’ claims against River Valley do not arise out of any activity that occurred within the State of West Virginia, nor do the claims arise out of activities River Valley directed at the residents of West Virginia. River Valley also submits an affidavit by its President, Tom Friedel, which avers the following:
*2 3. River Valley is a corporation which is incorporated in Iowa and has its principal place of business at 14868 West Ridge Lane, Suite 200, Dubuque, Iowa.
5. River Valley is an insurance agency that is domiciled in Iowa.
6. River Valley is the insurance agency for one of the defendants, in this lawsuit, J&TS, an Illinois corporation with its principal place of business in Chicago, Illinois.
7. River Valley is not registered or otherwise authorized by the Department of State of the State of West Virginia to do business in West Virginia.
8. River Valley does not maintain an agent for service of process in West Virginia.
9. River Valley does not direct any advertisements specifically to the citizens, residents, or businesses of West Virginia.
10. River Valley does not own or lease any real or personal property in West Virginia.
11. River Valley does not maintain any bank accounts in West Virginia.
12. River Valley does not have a mailing address in West Virginia.
13. River Valley does not maintain any telephone numbers in West Virginia.
14. River Valley does not contract with any third party in West Virginia for business purposes related to sale of insurance, nor has River Valley engaged in any joint venture with any third party located in West Virginia.
15. River Valley does not exert control over any West Virginia insurance agencies, nor does River Valley hold out any West Virginia individuals or entities as being agents or representatives of River Valley.
16. None of River Valley’s 19 employees, officers, or directors is located in West Virginia.
17. River Valley has never filed taxes or administrative reports in West Virginia.
18. River Valley’s revenue obtained through sales to businesses or individuals located in West Virginia constitutes 0.000006% of its income.
19. Information about River Valley may be accessed on the internet from anywhere in the world, including West Virginia, at http://rivervalleycapital.com/insurance/, but that website is not directed specifically at West Virginia, nor can any product sold by River Valley be purchased through the website.
20. In order to purchase insurance through River Valley, a customer must first call the River Valley telephone number, which is an Iowa telephone number, or come to the office in Dubuque, Iowa, to meet with an agent.
22. River Valley was asked by J&TS to add Bertram Copeland to J&TS’s commercial trucking policy. River Valley conducted a DMV background check on Bertram Copeland and provided the results to the company that underwrote the commercial trucking policy, National Liability & Fire Insurance Co., who then added Bertram Copeland as an approved driver on J&TS’s commercial trucking policy. River Valley did not make any recommendations as to whether or not Bertram Copeland should or should not be employed by J&TS or whether Bertram Copeland was fit or unfit to operate a motor vehicle or commercial truck.
23. The commercial trucking policy to which Bertram Copeland was added as an approved driver was written in the State of Illinois.
24. All of the activities that River Valley undertook as it relates to the requested services from J&TS took place in Iowa.
*3 (ECF No. 98, Ex. 1 ¶¶ 3, 5-20, 22-24.) River Valley argues that for these reasons it is not subject to general personal jurisdiction because it is not “at home” in West Virginia, nor have plaintiffs alleged sufficient minimum contacts to subject it to specific personal jurisdiction in West Virginia. (See ECF No. 99.)

Plaintiffs respond that there are sufficient contacts between River Valley and West Virginia for this court to exercise personal jurisdiction over River Valley. (See ECF No. 116.) Specifically, plaintiffs point to several facts that they allege create jurisdiction: River Valley’s website2 notes that River Valley has “the capability of serving Nationwide”; “River Valley added defendant truck driver Copeland to an interstate commercial motor vehicle policy”; “an agent of River Valley Capital Insurance stated Copeland ‘was eligible to be added to the [insurance] policy’ ”; and River Valley’s admission that West Virginia constitutes 0.000006% of its income shows that River Valley does in fact conduct some business in West Virginia. (Id.) Plaintiffs also argue that if the court finds plaintiffs have not yet alleged facts creating personal jurisdiction, the court should grant plaintiffs the opportunity to conduct reasonable, limited discovery to learn the full nature and extent of River Valley’s commercial contacts with this forum. (Id.)

River Valley filed a Reply, countering that its website being available in West Virginia does not constitute the kind of purposeful availment to establish sufficient minimum contacts; the fact that it performs work outside of West Virginia for an interstate trucking company which might hypothetically do business in or through West Virginia also does not show purposeful, intentional contact with West Virginia; its determination of defendant Copeland’s eligibility occurred entirely outside West Virginia; and the fact that River Valley draws a miniscule percentage of its income from business in West Virginia does not create general personal jurisdiction because it does not make River Valley “at home” in West Virginia, and does not create specific personal jurisdiction because such a miniscule percentage is insufficient to demonstrate purposeful availment. (ECF No. 117.) River Valley also argues that jurisdictional discovery should not be permitted because plaintiffs have not set forth a prima facie case of personal jurisdiction and merely want to conduct a fishing expedition to hope to find some basis of asserting personal jurisdiction. (Id.)

II. Standard of Review for Motion to Dismiss for Lack of Personal Jurisdiction
Under Federal Rule of Civil Procedure 12(b)(2), a court may dismiss claims for lack of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). “When a non-resident defendant files a motion pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure challenging the court’s power to exercise personal jurisdiction, ‘the jurisdictional question thus raised is one for the judge, with the burden on the plaintiff ultimately to prove the existence of a ground for jurisdiction by a preponderance of the evidence.’ ” Felman Prod. v. Bannai, 517 F. Supp. 2d 824, 827–28 (S.D.W. Va. 2007) (quoting Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989)). “Where, as here, the district court addresses the question of personal jurisdiction on the basis of motion papers, supporting legal memoranda, and the allegations in the complaint, the plaintiff bears the burden of making a prima facie showing of a sufficient jurisdictional basis to survive the jurisdictional challenge.” Consulting Eng’rs Corp. v. Geometric Ltd., 561 F.3d 273, 276 (4th Cir. 2009). “In considering whether the plaintiff has met this burden, the district 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.” Universal Leather, LLC v. Koro AR, S.A., 773 F.3d 553, 558 (4th Cir. 2014) (citation omitted).

III. Discussion
*4 A federal court sitting in diversity, “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)). Here, because the West Virginia long-arm statute “ ‘is coextensive with the full reach of due process,’ the court need not conduct ‘the normal two-step formula.’ ” Knisely v. Nat’l Better Living Ass’n, 2015 WL 1868819, at *8 (N.D.W. Va. Apr. 23, 2015) (quoting In re Celotex Corp., 124 F.3d 619, 627 (4th Cir. 1997)). Thus, the court’s statutory inquiry merges with the constitutional inquiry and the court need only consider whether the exercise of personal jurisdiction would be consistent with the Due Process Clause. See id. “A court’s exercise of jurisdiction over a nonresident defendant comports with due process if the defendant has ‘minimum contacts’ with the forum, such that to require the defendant to defend its interests in that state ‘does not offend traditional notions of fair play and substantial justice.’ ” Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d at 397 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).

A. General Personal Jurisdiction
There are two types of personal jurisdiction: general and specific. A court may exercise general personal jurisdiction over a non-resident, corporate defendant if the defendant’s contacts with the forum state are so “continuous and systemic” as to render the defendant “at home” in the forum state. See Daimler AG v. Bauman, 571 U.S. 117, 139 (2014). Generally, a corporation is at home only where it has its place of incorporation and its principal place of business. See id. at 137.

It is abundantly clear that River Valley is not “at home” in West Virginia. River Valley’s contacts with West Virginia are nowhere near being continuous and systematic. River Valley is incorporated in Iowa and has its principal place of business in Iowa. (ECF No. 98, Ex. 1 ¶ 3.) Plaintiffs have made no assertions and or shown any facts challenging these statements and demonstrating that River Valley is incorporated in or has its principal place of business in West Virginia. On the contrary, River Valley is not registered to do business in West Virginia, has no officers located in or employees stationed in West Virginia, and seems to scarcely do any business in West Virginia at all. (Id. Ex. 1 ¶¶ 3-24.) As such, River Valley is not subject to general personal jurisdiction in the state of West Virginia.

B. Specific Personal Jurisdiction
A court may exercise specific personal jurisdiction over the corporate defendant if the defendant has “ ‘purposefully established minimum contacts in the forum State’ such ‘that [it] should reasonably anticipate being haled into court there.’ ” Perdue Foods, 814 F.3d at 189 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985)). The Fourth Circuit has directed courts to use the following three-pronged test to determine whether specific personal jurisdiction exists: (1) the extent to which the defendant purposefully availed itself of the privilege of conducting activities in the forum state; (2) whether the plaintiff’s claims arose out of those activities; and (3) whether the exercise of personal jurisdiction is constitutionally reasonable. Universal Leather, LLC v. Koro AR, S.A., 773 F.3d 553, 559 (4th Cir. 2014).

i. No purposeful availment
When determining whether a plaintiff has met the first prong of this analysis, the Fourth Circuit directs courts to consider the following (nonexclusive) factors:
(1) whether the defendant maintains offices or agents in the forum state; (2) whether the defendant owns property in the forum state; (3) “whether the defendant reached into the forum state to solicit or initiate business; (4) whether the defendant deliberately engaged in significant or long-term business activities in the forum state; (5) “whether the parties contractually agreed that the law of the forum state would govern disputes; (6) whether the defendant made in-person contact with the resident of the forum in the forum state regarding the business relationship; (7) the nature, quality and extent of the parties’ communications about the business being transacted; and (8) whether the performance of contractual duties was to occur within the forum.
*5 Consulting Eng’rs Corp. v. Geometric Ltd., 561 F.3d 273, 278 (4th Cir. 2009) (citations omitted and formatting modified). If, and only if, a plaintiff can satisfy the first prong should a court move to consider the second and third prongs. Id.

None of these factors are met in the instant case.3 Factors (1), (2), (5), (6), and (7) can be dealt with summarily, as they have been established by a sworn affidavit and plaintiffs have not established any facts which could result in a different conclusion. River Valley (1) does not maintain offices or agents in West Virginia; (2) does not own property in West Virginia; (5) has not contractually agreed that the law of West Virginia would govern any of its disputes or potential disputes; (6) did not have contact with any resident in West Virginia regarding its insurance services; and (7) conducted all relevant services – communicating with and providing services to defendant J&TS, conducting the DMV background check on defendant Copeland, and providing the results to National Liability & Fire Insurance Co. – in Iowa and not in West Virginia. (See ECF No. 98, Ex. 1 ¶¶ 3-24.) Factors (3), (4), and (8) require greater attention, though, as these factors were the ones plaintiffs appeared to challenge in their Response. (See ECF No. 116.)

Plaintiffs assert that River Valley’s website shows River Valley’s solicitation of West Virginia business, as the website is accessible by consumers in West Virginia and states that River Valley has “the capability of serving Nationwide”. (See id.) This argument is not supported by law for two reasons.

First, plaintiffs state no facts showing that the website is specifically targeted towards persons in West Virginia, and thus River Valley cannot be considered to be reaching into or soliciting business in West Virginia on this basis. See Fidrych v. Marriott Int’l, Inc., 2020 WL 986674, at *12 (4th Cir. Mar. 2, 2020) (“[T]he mere fact that the website is accessible in a given state does not mean that [a defendant] is targeting its activities at that state.”). The website’s statement that River Valley has “the capability of serving Nationwide” is not evidence that the website specifically targets West Virginia consumers.

Second, the website appears to be a passive rather than interactive website, as the website conveys information but consumers cannot purchase any River Valley products or services through that website. (ECF No. 98, Ex. 1 ¶ 19.) This kind of passive website is insufficient to grant specific personal jurisdiction over the website operator. HSBC Bank USA, Nat. Ass’n v. Resh, 2015 WL 4772524, at *3 (S.D.W. Va. Aug. 12, 2015) (“[I]f the defendant runs a passive site that ‘merely makes information available,’ the fact that the website can be accessed by residents in a different state is insufficient to give courts in that state personal jurisdiction over the defendant.” (quoting Carefirst of Maryland, Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 399 (4th Cir. 2003))).4

*6 While plaintiffs point to the fact that West Virginia constitutes 0.000006% of River Valley’s income, this is insufficient to demonstrate the “significant or long-term business activities in the forum state” that factor (4) requires. A miniscule percentage of income such as 0.000006% cannot be considered significant. Furthermore, plaintiffs have not put forth a single example of other business River Valley has done in West Virginia, much less demonstrated a long-term pattern of West Virginia business activities. Nor have plaintiffs demonstrated how the transactions that served as the basis for River Valley’s 0.000006% of income in West Virginia have any connection to plaintiffs’ current cause of action against River Valley. And as the Supreme Court has expressed, minimal business activity is “not enough to warrant a State’s assertion of in personam jurisdiction over a nonresident corporation in a cause of action not related to those … transactions.” Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 418 (1984).

The core of factor (8) is about foreseeability: whether a defendant should find it foreseeable that, based on its contracted responsibilities, it is likely to be required to perform its duties in the forum state. Here, River Valley performed all its contractual duties in Iowa, as requested by defendant J&TS, an Illinois entity, for an insurance policy that was written in Illinois. (See ECF No. 99, at p.12.) Thus, River Valley did not perform any actions relevant to this case in West Virginia, nor does it appear remotely foreseeable that River Valley would perform any actions in or affecting West Virginia. River Valley added persons to an interstate commercial motor vehicle policy. Plaintiffs appear to make the argument that this makes it sufficiently foreseeable that River Valley’s performance of its duties would affect West Virginia. This argument, relying on the stream of commerce theory, likewise fails to create specific personal jurisdiction over River Valley.

Even if River Valley performed an act and it was aware that the effects of that action could touch West Virginia – such as its act here in certifying a truck driver for an interstate commercial insurance policy, which could then result in the driver driving in West Virginia – this awareness is itself insufficient to find the kind of purposeful availment of the forum state required before specific personal jurisdiction is properly found. As the Supreme Court explained in Asahi,
The placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State. Additional conduct of the defendant may indicate an intent or purpose to serve the market in the forum State, for example, designing the product for the market in the forum State, advertising in the forum State, establishing channels for providing regular advice to customers in the forum State, or marketing the product through a distributor who has agreed to serve as the sales agent in the forum State. But a defendant’s awareness that the stream of commerce may or will sweep the product into the forum State does not convert the mere act of placing the product into the stream into an act purposefully directed toward the forum State.
Asahi Metal Indus. Co. v. Superior Court of California, Solano Cty., 480 U.S. 102, 112 (1987). Here, plaintiffs have not demonstrated the presence of any of this additional conduct. See supra. Thus, while River Valley stated that defendant Copeland was eligible to be added to an interstate commercial motor vehicle policy, this is (at most) equivalent to merely placing a product into the stream of commerce without any purposeful direction of that product towards the forum state. The action of a third party, defendant J&TS, directed defendant Copeland to enter and drive in West Virginia, and does not subject River Valley to specific personal jurisdiction in West Virginia. See Walden v. Fiore, 571 U.S. 277, 284 (2014) (“[T]he relationship [between the defendant, the forum, and the litigation] must arise out of contacts that the “defendant himself” creates with the forum State.” (citations omitted)).

*7 Therefore, plaintiffs have not met their burden of making a prima facie case that River Valley purposefully availed itself of the privilege of conducting activities in West Virginia. See Universal Leather, LLC v. Koro AR, S.A., 773 F.3d 553, 559 (4th Cir. 2014). As plaintiffs have failed to satisfy this first prong of the Universal Leather test, this court need not analyze the second and third prongs of the specific personal jurisdiction analysis before concluding that River Valley is not subject to the personal jurisdiction of this court. See Consulting Eng’rs Corp., 561 F.3d at 278 (“If, and only if, we find that the plaintiff has satisfied this first prong of the test for specific jurisdiction need we move on to a consideration of prongs two and three.”).

IV. Jurisdictional Discovery
Plaintiffs request that, if this court concludes that plaintiffs have not established a prima facie case of personal jurisdiction over River Valley, plaintiffs be afforded the opportunity to conduct jurisdictional discovery “to learn the full nature and extent of River Valley’s commercial contacts” with West Virginia. (ECF No. 116, at p.2.) The court DENIES that request for the following reasons.

A. Standard for Granting Jurisdiction Discovery
“A federal district court uncertain about its personal jurisdiction over a defendant may, in its discretion, grant discovery for the limited purpose of determining whether exercising personal jurisdiction is proper.” Estate of Alford v. Fuji Heavy Indus., Ltd., 2016 WL 756489, at *1 (S.D.W. Va. Feb. 25, 2018) (citing Carefirst of Maryland, Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 402 (4th Cir. 2003)). “ ‘If a plaintiff presents factual allegations that suggest with reasonable particularity the possible existence of the requisite contacts between the party and the forum state, the plaintiff’s right to conduct jurisdictional discovery should be sustained.’ ” Estate of Alford v. Fuji Heavy Indus., Ltd, 2016 WL 756489, at *1 (S.D.W. Va. Feb. 25, 2016) (quoting ; Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d 446, 456 (3d Cir. 2003)). However, “the decision of whether or not to permit jurisdictional discovery is a matter committed to the sound discretion of the district court,” and “where … the plaintiff simply wants to conduct a fishing expedition in the hopes of discovering some basis of jurisdiction,” the district court is well within its discretion to deny jurisdictional discovery. Base Metal Trading v. Ojsc Novokuznetsky Aluminum Factory, 283 F.3d 208, 216 n.3 (4th Cir. 2002). Thus, “[w]hen a plaintiff offers only speculation or conclusory assertions about contacts with a forum state, a court is within its discretion in denying jurisdictional discovery.” Carefirst, 334 F.3d at 402.

B. Analysis
Even after construing all inferences in plaintiffs’ favor, plaintiffs have offered merely speculative and/or conclusory assertions that River Valley has sufficient contacts with West Virginia for this court to assert personal jurisdiction over River Valley. Plaintiffs have done no more than simply state that River Valley has contacts with West Virginia, and have offered no concrete examples of River Valley’s contacts with the forum state.5 Compare Brighter Sky Prods., LLC v. Marriott Int’l, Inc., 2018 WL 2248601, at *7 (S.D.W. Va. May 16, 2018) (finding that the plaintiff’s claims regarding personal jurisdiction were merely conclusory where the plaintiff offered no concrete, meaningful contacts with the forum outside of the defendant’s website, and that plaintiffs’ claims do not arise out of any asserted contacts in any event), with Farrar v. Cessna Aircraft Co., 2018 WL 5891751, at *4 (S.D.W. Va. Nov. 9, 2018) (granting jurisdictional discovery where plaintiffs offered “concrete examples” of contacts with the forum state, such as defendants making “millions of dollars in revenue in West Virginia … [being] registered with the State of West Virginia for the purpose of conducting business … and advertis[ing] in and solicit[ing] business from West Virginia”).6 Moreover, allowing jurisdictional discovery would largely amount to a wasteful fishing expedition, as plaintiffs do not articulate any specific facts they anticipate to uncover; in fact, plaintiffs do not even suggest any general lines of inquiry they might pursue beyond getting to “jurisdictional issues” and questioning Mr. Friedel about his affidavit. (ECF No. 116, at p.3.) Plaintiffs merely hope to uncover some information that would aid them in asserting jurisdiction. In such a case, the court declines to authorize such a fishing expedition, and so DENIES plaintiffs’ request to conduct jurisdictional discovery.

V. Conclusion
*8 Based on the foregoing analysis, the court finds that plaintiffs have not met their burden of making a prima facie showing that River Valley purposefully directed activities at West Virginia or purposefully availed itself of the privilege of doing business here such that the exercise of jurisdiction would be reasonable. Nor have plaintiffs shown that granting jurisdictional discovery is appropriate here. It is therefore necessary to dismiss River Valley from this action for want of personal jurisdiction. As such, and for the reasons expressed above, defendant River Valley’s motion to dismiss, (ECF No. 98), is GRANTED. Defendant River Valley is further DISMISSED from this case with prejudice.

The Clerk is directed to send copies of this Memorandum Opinion and Order to all counsel of record.

IT IS SO ORDERED this 16th day of March, 2020.

All Citations
Slip Copy, 2020 WL 1272116

Footnotes

1
Also pending before the court is defendant M & K Truck Leasing, LLC’s motion to vacate Scheduling Order and Other Orders. (ECF No. 105.) That motion was filed on May 22, 2019. (See id.) On July 3, 2019, the court entered a Stipulated Amended Scheduling Order, (ECF No. 115), based on a joint proposed amended scheduling order submitted by all parties, including defendant M&K Truck Leasing. (See ECF No. 113.) Because the court entered the Stipulated Amended Scheduling Order, (ECF No. 115), the court DENIES AS MOOT defendant M&K Truck Leasing, LLC’s motion to vacate Scheduling Order and Other Orders. (ECF No. 105.)

2
https://rivervalleycapitalinsurance.com/

3
But even if one of these factors were met and prong (1) satisfied, prong (2) would not be satisfied because plaintiffs’ claims do not arise or relate to River Valley’s minimum, purposeful contacts with West Virginia.

4
Additionally, even if the website was targeted towards West Virginia such that it is sufficient to satisfy factor (3) of prong (1), the website would fail prong (2). See Universal Leather, 773 F.3d at 559. This is because plaintiffs do not allege that River Valley’s website is related in any way to the actions at issue in this case. Accordingly, the court cannot exercise specific personal jurisdiction over River Valley in this case based upon its website. See Pomeroy, Inc. v. GHL Int’l, Inc., 2009 WL 10688836, at *8 (S.D.W. Va. Feb. 18, 2009) (“Unique Balance does not allege GHL International’s website served any function in the formation or performance of the contracts at issue in this litigation. Accordingly, “the cause of action does not ‘arise out of’ [GHL International’s] website and the court cannot properly exercise specific personal jurisdiction over [GHL International] on this basis” (quoting Reynolds & Reynolds Holdings, Inc. v. Data Supplies, Inc., 301 F. Supp. 2d 545, 553 (E.D. Va. 2004))).

5
Other than the website and the 0.000006% of revenue, which this court addressed earlier, see supra Part III.B, and were also first mentioned not by plaintiffs, but by River Valley itself. See supra Part I.C.

6
It also appears that in other cases where courts have granted jurisdictional discovery, plaintiffs have met prong (1) of the Universal Leather test by showing some sufficient minimum contacts between defendant and the forum state, but are struggling to meet prongs (2) and (3) by showing how the particular cause of action in the case is connected to the defendant’s contacts with the forum state. The decisions cited here, Farrar and Brighter Sky, demonstrate this distinction.