United States District Court, E.D. Arkansas, Western Division
PRIMO C. NOVERO PLAINTIFF
DUKE ENERGY FLORIDA, LLC; URS ENERGY AND CONSTRUCTION, INC.; and CDI CORPORATION DEFENDANTS
OPINION AND ORDER
LEON HOLMES UNITED STATES DISTRICT JUDGE.
pro se action arises out of a previous case involving the
same parties in the United States District Court Middle
District of Florida. Primo C. Novero alleges that in
connection with the case, Duke Energy Florida, LLC, URS
Energy and Construction, Inc., and CDI Corporation threatened
him, defrauded him, and then wrongfully took his personal
property in order to pay the costs of defending themselves.
Duke Energy has filed a motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(2)(3), & (6). Document #14.
URS and CDI have filed motions to dismiss pursuant to Rule
12(b)(3) & (6). Documents #7 & #16. For the following
reasons, the motions are granted.
alleges the following facts in the complaint. He, Duke
Energy, URS, and CDI participated in a court-ordered
mediation in Jacksonville, Florida, on May 9, 2017. The
defendants encouraged Novero to settle and communicated to
Novero the benefits he would gain from a settlement. Novero
disagreed. Then, the defendants began to discourage Novero
and explained to him why he could not win. Novero says the
defendants threatened him and told him he would end up with
nothing. The mediation failed. The court entered an order
dismissing Novero's complaint with prejudice on August
30, 2017. Document #1 at 16. The defendants then filed a
joint motion for final judgment. Document #1 at 12. Counsel
for CDI and URS authorized counsel for Duke Energy to submit
the joint motion and to mail the a copy via certified mail to
Novero at his Arkansas mailing address, which counsel did.
Id. at 13. The court entered a final judgment
dismissing the case on September 13, 2017. Id. at
16. The court awarded the defendants taxable costs.
Energy maintains that pursuant to Rule 12(b)(2), Novero's
claims must be dismissed for lack of personal jurisdiction.
Document #14. In order for Novero to survive this motion, the
complaint must contain sufficient facts “‘to
support a reasonable inference that [the defendants] can be
subjected to jurisdiction within the state. Once jurisdiction
ha[s] been controverted or denied, [Novero] ha[s] the burden
of proving such facts.'” Dever v. Hentzen
Coatings, Inc., 380 F.3d 1070, 1072 (8th Cir. 2004)
(quoting Block Indus. v. DHJ Indus., Inc., 495 F.2d
256, 259 (8th Cir. 1974)). Novero may meet his burden to
prove that personal jurisdiction exists through the
presentation of affidavits and exhibits in opposition to Duke
Energy's motion, but he cannot rely on the pleadings
alone. See id. at 1072-73 (collecting cases).
action is before the Court on the basis of diversity. 28
U.S.C. § 1332; Document #1 at 2, ¶4. Novero alleges
that Duke Energy is a citizen of Florida, URS is a citizen of
South Carolina, CDI is a citizen of Ohio. Id. at
2-3, ¶ 4. “A federal court in a diversity action
may assume jurisdiction over nonresident defendants only to
the extent permitted by the long-arm statute of the forum
state and by the Due Process Clause.” Morris v.
Barkbuster, Inc., 923 F.2d 1277, 1280 (8th Cir. 1991).
Arkansas's long-arm statute confers jurisdiction to the
fullest constitution extent. Ark. Code Ann. § 16-4-101.
Therefore, the pertinent inquiry is whether the exercise of
personal jurisdiction over Duke Energy comports with due
process; the crux of this inquiry is to ensure that a
court's assertion of personal jurisdiction over a
non-resident does not offend “traditional notions of
fair play and substantial justice.” See Dever,
380 F.3d at 1073; Int'l Shoe co. v. Washington,
326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945).
notions of fair play and substantial justice dictate that a
defendant must have some warning that he may be haled into
court in a particular jurisdiction. A defendant has such a
warning when he purposefully avails himself of the benefits
and protections of its laws; in other words, one should be
aware that he could be sued in a state if he has a
substantial connection-minimum contacts-with that state.
See Burger King Corp. v. Rudzewicz, 471 U.S. 462,
475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). The Eighth
Circuit has provided five factors for the courts to use in
analyzing whether this standard is met:
(1) the nature and quality of the contacts with the forum
state; (2) the quantity of the contacts with the forum state;
(3) the relation of the cause of action to the contacts; (4)
the interest of the forum state in providing a forum for its
residents; and (5) the convenience of the parties.
Downing v. Goldman Phipps, PLLC, 764 F.3d 906, 912
(8th Cir. 2014). The last two factors “carry less
weight and are not dispositive.” Johnson v.
Woodcock, 444 F.3d 953, 956 (8th Cir. 2006). There is
only one contact with Arkansas alleged in the complaint:
Counsel for Duke Energy mailed to Novero's Arkansas
address a copy of the defendants' joint motion for a
final judgment in the Florida case. Document #1 at 4,
¶8. The motion is attached to the complaint.
Id. at 12-13. The contact arose out of litigation in
another state about events occurring in another state.
Id. The first three factors, therefore, support the
finding that the complaint does not contain sufficient facts
to support a reasonable inference that Duke Energy is subject
to this Court's jurisdiction. See Porter, 293
F.3d at 1076 (concluding that plaintiffs failed to satisfy
first two factors even though numerous phone calls and
letters were exchanged between the parties).
opposition to Duke Energy's assertion that the complaint
is facially insufficient to support the exercise of personal
jurisdiction, Novero has presented no evidence. He continues
to rely on the mailing of the joint motion to his Arkansas
address. Document #18 at 1, ¶¶ 2-3. As explained,
this single contact by mail in regards to litigation in
another state does not justify exercise of personal
jurisdiction under the Due Process Clause. Therefore, the
claims against Duke Energy are dismissed for lack of personal
CDI maintains that pursuant to Rule 12(b)(3), Novero's
claims must be dismissed for improper venue. Documents #7
& #16. Venue is governed by 28 U.S.C. § 1391, which
action may be brought in-
(1) a judicial district in which any defendants resides, if
all defendants are residents of the State in which the
district is located;
(2) a judicial district in which a substantial part of the
events or omissions giving rise to the claim occurred, or a
substantial part of the property that is the subject of the
action is situated; or
(3) if there is no district in which an action may otherwise
be brought as provided in this section, any jurisdiction in
which any defendant is subject to the court's personal