G.R. SMITH, Magistrate Judge.
In Sumter v. Quality Project Management, LLC, CV416-108 (S.D. Ga. May 10, 2016), pro se plaintiff Craig Sumter sued Quality Project Management, LLC (QPM), claiming that QPM employee Creighton Hussey "physically attacked [him] on October 19, 2013 in Plaintiff's apartment while in Atlanta Georgia for work, under the auspices of [QPM]." Doc. 1 at 1-2. Suing only QPM (in CV416-108), Sumter alleges that QPM is vicariously liable for Hussey's actions. Id. at 1.
But in a second lawsuit, Sumter sued Hussey personally, and on pretty much the same facts. Sumpter v. Hussey, CV416-109, doc. 1 (S.D. Ga. May 10, 2016). The Court thus consolidated CV416-108 into CV416-109 — sparing him two filing fees. It also granted his motion to proceed in forma pauperis (IFP), then ordered him (since he was an inmate when he filed this case) to return the required Prison Litigation Reform Act ("PLRA") forms, 28 U.S.C. § 1915(a)(2). He has complied, (CV416-109, docs. 5 & 6) and, upon preliminary screening,
I. JURISDICTION & VENUE
Lawrence v. Wells Fargo Bank, N.A., 2016 WL 7013528 at *2 (S.D. Ga. Nov. 4, 2016); see also id. (for diversity, no defendant can be a citizen of the same state as any plaintiff and the amount in controversy must exceed $75,000); Holston Invs., Inc. B.V.I. v. LanLogistics Corp., 677 F.3d 1068, 1070 (11th Cir. 2012) ("Diversity jurisdiction is determined at the time the complaint was filed.").
A. Subject Matter Jurisdiction
Sumter has filed a consolidating, Amended Complaint in which he pleads diversity jurisdiction and adds a "John Doe" defendant. Doc. 7 at 1-2. He sues Hussey for state-law torts (assault, battery, stalking, invasion of privacy, etc.) that occurred in the Atlanta, Georgia area. Id. at 4 ("Mr. Hussey justifies his presence in Atlanta by bidding for work trips in the area but his true intent has been to stalk plaintiff."); see also id. ¶ 6 ("On two occasions Mr. Hussey attempted to persuade Plaintiff to move out of Atlanta, once threatening his life"). Plaintiff sues QPM because Hussey came to Atlanta while employed by QPM. He otherwise does not allege that Hussey was acting within the scope of QPM's employment. Id. at 3. Sumter initially sought $125,000, doc. 1 at 6, but now wants $6,125,000 from all three defendants. Id. at 14. That meets the $75,000 requirement.
That leaves the residency requirement. Sumter is incarcerated within this judicial district (Wheeler Correctional Facility in Wheeler County, Georgia). Doc. 7 at 15. Hussey is a Minnesota resident and QPM (possibly) is an Arizona resident.
B. Personal Jurisdiction
Sumter must also allege sufficient facts to establish personal jurisdiction over each defendant. United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009); Brannies v. Internet ROI, Inc., 67 F.Supp.3d 1360, 1362 (S.D. Ga. 2014). Here the case law delves in "general" versus "specific" jurisdiction distinctions. General (also known as "all-purpose") jurisdiction over a defendant is based on a forum nexus (the defendant's domicile, for example) unrelated to the conduct on which the underlying suit is premised.
Specific (case-linked) jurisdiction turns on the nexus between the forum and the underlying controversy — the action in the forum state that subjects the actor to that state's regulation: "A," a non-Georgian, commits an intentional tort or performs a certain contract in Georgia. "A" can be haled into that state when sued on that tort or contract. Specific jurisdiction thus has been recognized
Walden, 134 S.Ct. at 1122 (quotes, cites and alterations omitted).
To summarize, the exercise of specific jurisdiction over, for example, an out-of-state intentional tortfeasor, must be based on intentional conduct that creates the necessary contacts with the forum. Walden, 134 S.Ct. at 1122-23. How many is a matter of degree: "Due process requires that a defendant be haled into court in a forum State based on his own affiliation with the State, not based on the random, fortuitous, or attenuated contacts he makes by interacting with other persons affiliated with the State." Id. at 1123. But the standard is spongy: "A forum State's exercise of jurisdiction over an out-of-state intentional tortfeasor must be based on intentional conduct by the defendant that creates the necessary contacts with the forum." Id. (emphasis added). "Necessary," say lower courts, means that the defendant's conduct supplies the "but-for" cause of the tort at issue. Waite v. AII Acquisition Corp., 2016 WL 2346743 at *3 (S.D. Fla. May 4, 2016); Erwin v. Ford Motor Company, 2016 WL 7655398 at *7 (M.D. Fla. Aug. 31, 2016).
Walden, by the way, demonstrates what does not make the specific-jurisdiction grade. There two airline passengers brought a Bivens action against a police officer, alleging that he violated their Fourth Amendment rights by seizing their gambling cash from them in Atlanta, Georgia on their return trip to Nevada. The officer (by way of a bogus forfeiture affidavit) retained their money even after concluding that it did not come from drug-related activity. Walden, 134 S.Ct. at 1119-20. The Nevada federal court where the plaintiffs sued him dismissed him for lack of personal jurisdiction, but the Ninth Circuit reversed: The officer had "expressly aimed his submission of the allegedly false affidavit at Nevada by submitting the affidavit with knowledge that it would affect persons with a significant connection to Nevada." Id. at 1121 (quotes and cite omitted).
Reminding that "[f]ederal courts ordinarily follow state law in determining the bounds of their jurisdiction over persons,"
AMA Multimedia LLC v. Sagan Limited, 2016 WL 5946051 at *3 (D. Ariz. Oct. 13, 2016); see also Blizzard Entertainment Inc. v. Bossland GmbH et al., 2017 WL 412262 at *7 (C.D. Cal. Jan. 25, 2017) (personal jurisdiction established in California over a German company for allegedly developing and selling malicious software enabling users to cheat in some of plaintiff's computer games).
The foregoing discussion touches the general, constitutional contours guiding the personal-jurisdiction determination. But the Walden, Daimler and Goodyear cases did not disturb the obligation of federal courts to apply state law, which therefore must be consulted here:
Paws Holdings, LLC v. Daikin Industries, Ltd., 2017 WL 706624 at *8 (S.D. Ga. Feb. 22, 2017) (footnote omitted). Georgia's long-arm statute is O.C.G.A. § 9-10-91,
Paws, 2017 WL 706624 at *17 n. 14; see also Perrigo Company v. Merial Limited, ___ F. Supp. 3d ___, 2016 WL 6106744 at *7 (N.D. Ga. Oct. 6, 2016) (same). Georgia law instructs that a court in Georgia:
The Eleventh Circuit interprets and applies "Georgia's long-arm statute in the same way as would the Georgia Supreme Court." LABMD, Inc. v. Tiversa, Inc., 509 F. App'x 842, 844 (11th Cir. 2013) (quotes and cite omitted).
Sumter alleges that Hussey committed a wide variety of malicious acts against him. See doc. 7 at 2 ¶ 4 (Hussey physically attacked him while in Atlanta on business); id. at 3-4 ¶ 6 (stalked him in Atlanta, near Sumter's apartment complex); id. at 5-6 (plaintiff obtained a "Temporary Protective Order" against Hussey over the stalking, and Hussey retaliated by filing a fraudulent-statements-based, "Harassment Restraining Order in his home state of Minnesota," then later sought a misdemeanor charge for violating it — which also constitutes "an attempt to hinder Plaintiff from getting out of prison."); id. at 8-9 (in addition to assaulting Sumter, Hussey successfully triggered that Minnesota-based, misdemeanor prosecution against him); id. at 7 (on two occasions in 2014, Hussey hacked plaintiff's "Google Drive and Gmail accounts" and deleted data and documents "which were evidence of [Hussey] assaulting Plaintiff. This is invasion of privacy, stalking, and obstruction of justice. It is [also] an act of spoliation. . . ."); id. at 10 (Hussey hacked into Sumter's Facebook account and deleted his posts); id. at 10-11 (on two occasions Hussey hacked plaintiff's online airlines account and canceled his flight reservations); id. at 11 (another Facebook hack to delete a photo Sumter posted of himself — depicting his injuries from the night Hussey physically attacked him in Atlanta); id. (same re: Sumter's Twitter account); id. at 12 (telephone harassment); id. (threatened his life if he sued two individuals not named in this lawsuit); id. at 12-13 (social media stalking); id. at 13-14 (Hussey "intentionally and vindictively elicited a technical violation of [Sumter's] parole for an incorrect address."); id. at 14 (alleging that Hussey was "negligent" for failing to take his "mood stabilizer Celexa," and that preceded the assault).
Sumter has pled personal jurisdiction over Hussey. "A tortious act occurs either where the allegedly negligent act or omission was made . . . or where the damage was sustained." Exceptional Marketing Group, Inc. v. Jones, 749 F.Supp.2d 1352, 1363 (N.D. Ga. 2010) (quotes and cite omitted), cited in Paws, 2017 WL 706624 at *8; see also supra n. 6. Hussey, says Sumter, committed intentional acts both inside and outside Georgia, damaging Sumter inside the state. Too, plaintiff has alleged at least one actionable tort claim (civil assault and battery) against Hussey. See, e.g., Kohler v. Van Peteghem, 330 Ga.App. 230, 235 (2014). It is not necessary to recognize any other torts
However, Sumter has pled no claim over QPM because he has failed to allege that Hussey was acting within the scope of his employment when Hussey committed the various alleged acts against him. It is not enough to claim that Hussey simply came to town on his employer's dime. See, e.g., Corrugated Replacements, Inc. v. Johnson, ___ Ga. App. ___, 2017 WL 715963 at *2 (Feb. 23, 2017) (driver's employer was not liable for death of passenger of van arising out of collision with truck and for injuries sustained by other passengers, based on theory of respondeat superior, even though truck was owned by employer, where driver was not acting within course and scope of employment at time of accident, but was engaged in purely personal activity); Ahmed v. Air France-KLM, 165 F.Supp.3d 1302, 1310 (N.D. Ga. 2016) (employer could not be held liable on respondeat superior theory under Georgia law for employee's alleged fraud, false imprisonment, and infliction of emotional distress on airline passengers of Somali descent, as such actions were purely personal in nature, unrelated to employee's duties, and were therefore outside the scope of employment because they were not in furtherance of employer's business; employee's discrimination, demanding of bribes, and acts preventing passengers from boarding their flights to the United States were solely for his own benefit).
Hence, QPM faces dismissal from this case on the merits, if not for lack of personal jurisdiction — though for the moment the Court defers formal ruling on this point. Meanwhile, since Sumter makes no allegations of any kind against Doe, Doe also faces dismissal (and if Sumter subsequently amends to add him as a party, he would have to allege sufficient facts to establish a cause of action and jurisdiction).
"Finally, while personal jurisdiction is assessed with regard to the forum state, venue focuses on the federal districts in which litigants reside or in which events underlying the claims took place." 14D F ED. PRAC. & PROC. JURIS. § 3801 (4th ed. Jan. 2017). In that regard,
Id. (footnotes omitted).
While "federal courts generally apply state statutes in ruling on personal jurisdiction, federal law governs questions of federal-court venue." 14D FED. PRAC. & PROC. JURIS. § 3801. Also, "even when a statute indicates that venue is proper wherever the defendant is subject to personal jurisdiction, many federal courts have concluded that the defendant must have minimum contacts with the district in which venue is laid, and that venue cannot be based solely on a provision allowing national service of process." Id. The venue statute (28 U.S.C. § 1391(b)) otherwise "permits the plaintiff to lay venue in `any civil action' either in the district in which the defendant resides or the district where a substantial part of the claim arose." Id. § 3808; see also Avent v. Pirrello, 2017 WL 1062372 at *5 (N.D. Ga. Mar. 20, 2017) ("the venue analysis must focus on the Defendant's actions and omissions.").
Sumter evidently chose this Court because he is incarcerated within the Southern District of Georgia. But, apparently, all of the alleged events evidently transpired in the Northern District, which Hussey presumably would find more convenient. Hence, the Clerk is
II. FILING FEE
Sumter must pay the $350 filing fee for this case. His PLRA paperwork (doc. 6) supports a $50.00 initial partial filing fee. See 28 U.S.C. § 1915(b) (1) (requiring an initial fee assessment "when funds exist," under a specific 20 percent formula). Plaintiff's custodian (or designee) shall therefore remit the $50.00 and shall set aside 20 percent of all future deposits to his account, then forward those funds to the Northern District of Georgia's Clerk each time the set aside amount reaches $10.00, until the balance of the Court's $350.00 filing fee has been paid in full.
Also, this Court's Clerk is
The Court has subject matter and personal jurisdiction over defendant Creighton Hussey, and defendants Quality Project Management, LLC and John Doe warrant dismissal, but ruling on them is deferred to the Northern District of Georgia, to which this case is
All three statutory provisions contemplate the dismissal of non-cognizable claims prior to service of process upon any defendant. See § 1915A (requiring screening "before docketing if feasible or . . . as soon as practicable after docketing"); § 1915(e)(2) (requiring dismissal "at any time" the court determines the suit to be factually or legally insubstantial); and § 1997e(c)(1) (requiring dismissal of insubstantial claims on the court's "own motion"). But here no prison conditions or government officials are sued, so review is under 28 U.S.C. § 1915(e)(2)(B). Sumter must pay the Court's $350 filing fee under the PLRA's "installment" plan implemented below. He is not subject to the PLRA's exhaustion requirement, however, since he is not suing his jailers or any other state actors.
LABMD, 509 F. App'x at 844.