Opinion
8:02CV78
August 30, 2002
MEMORANDUM AND ORDER
This matter is before the court on defendants' motions to dismiss for lack of jurisdiction and for improper venue pursuant to Fed.R.Civ. p. 12(b)(2) and (3) and 28 U.S.C. § 1391(a)(3). Filing Nos. 14, 15, 17, and 18. I have carefully reviewed the record, briefs, and relevant law, and I conclude that defendant's motions shall be granted.
Facts
Plaintiff was a citizen of the State of Nebraska, and in July 1965, when plaintiff was 14 years of age, he was sent by his parents to Sky Ranch for Boys in South Dakota. Plaintiff alleges that on three occasions in 1965 and 1966 he was molested by Father Donald Murray, now deceased, who was the Director of Sky Ranch. Two of these alleged actions took place in South Dakota and one occurred in Illinois. Thereafter, Sky Ranch was closed due to financial considerations and plaintiff returned to Nebraska. Plaintiff was caught by police in a stolen car and sentenced to time at the Nebraska State Training School. Father Murray intervened and stated that Sky Ranch was again open and asked for custody of the plaintiff. Plaintiff was then allegedly taken by Father Murray to Wyoming, not Sky Ranch, and then he was later taken to Belle Fourche, South Dakota. Plaintiff contends that Father Murray then tried to force him to enlist for service in Viet Nam. As a result of these experiences, plaintiff contends that he has been left with serious psychological damage and other injuries. Plaintiff has sued these three South Dakota defendants: Sky Ranch for Boys, Sky Ranch Foundation, and The Diocese of Rapid City.
Standard of Review
The plaintiff has the burden of establishing a court's personal jurisdiction over a defendant if the defendant challenges that jurisdiction. Moog World Trade Corp. v. Bancomer, S.A., 90 F.3d 1382, 1384 (8th Cir. 1996). However, a plaintiff only needs to make a prima facie showing of jurisdictional facts to survive the defendant's challenge. Digi-Tel Holdings, Inc. v. Proteq Telecommunications, Ltd., 89 F.3d 519, 522 (8th Cir. 1996). To determine if the plaintiff has made this showing, the court views the evidence in the light most favorable to the plaintiff and resolves factual conflicts in the plaintiff's favor. Enterprise Rent-A-Car Co. v. Stowell, 137 F. Supp.2d 1151, 1154 (E.D.Mo. 2001).
"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) (emphasis added). Under Nebraska's long-arm statute, a court may exercise personal jurisdiction over one "(a) [t]ransacting any business in th[e] state; (b) [c]ontracting to supply services or things in th[e] state; (c) [c]ausing tortious injury by an act or omission in th[e] state . . . . [or] (d) [c]ausing tortious injury in this state by an act or omission outside this state if the person regularly does or solicits business . . . or derives substantial revenue. . . ." Neb. Rev. Stat. § 25-536. "When a state construes its long arm statute to grant jurisdiction to the fullest extent permitted by the Constitution as Nebraska has, the key question becomes whether the exercise of personal jurisdiction would comport with the due process clause." Oriental Trading Co. v. Firetti, 236 F.3d 938, 943 (8th Cir. 2001).
In reviewing a motion to dismiss, I must "assume all facts alleged in the complaint are true, construe the complaint liberally in the light most favorable to the plaintiff, and affirm the dismissal only if `it appears beyond a doubt that the plaintiff can prove no set of facts which would entitle plaintiff to relief.'" Doe v. Norwest Bank Minnesota, 107 F.3d 1297, 1304 (8th Cir. 1997) (citing Coleman v. Watt, 40 F.3d 255, 258 (8th Cir. 1994)). Dismissal is appropriate "only in the unusual case in which a plaintiff includes allegations that show, on the face of the complaint, that there is some insuperable bar to relief." Schmedding v. Tnemec Co., Inc., 187 F.3d 862, 864 (8th Cir. 1999). The court does not determine whether the plaintiff will ultimately prevail, but rather whether the plaintiff is entitled to present evidence in support of the claim. Swartzbaugh v. State Farm Ins. Cos., 924 F. Supp. 932, 934 (E.D.Mo. 1995).
Jurisdiction and Venue
Defendants contend that there is no personal jurisdiction over them in Nebraska. The plaintiff must show that due process has been satisfied. International Shoe Co. v. Washington, 326 U.S. 310 (1945). There must be "certain minimum contacts" before jurisdiction will be found. Id. at 316. Sufficient minimum contacts must exist to give this court jurisdiction over the defendants. World-Wide Volkswagon Corp. v. Woodson, 444 U.S. 286, 297 (1980); Gray v. Lewis Clark Expeditions, 12 F. Supp.2d 993, 995 (D.Neb. 1998); Richards v. Aramark Services, Inc., 108 F.3d 925, 928 (8th Cir. 1997). The test is whether a reasonable person could be expected to be haled into court, whether traditional notions of fair play will be violated if the suit is maintained, and the extent that the defendant conducted activities in the state. Soo Line R.R. Co. v. Hawker Siddeley Canada, Inc., 950 F.2d 526, 528-29 (8th Cir. 1991).
Plaintiff relies on the Calder case which permitted a defendant in Florida to be sued by plaintiffs in California. Calder v. Jones, 465 U.S. 783 (1984). The court determined in Calder that the defendants had written libelous articles about the plaintiff which were designed to hurt and injure the plaintiff in the State of California. The court concluded that such purposeful and intentional activity was expressly aimed at another state. This is not the case at hand. The action of the defendants, as hereinafter set forth, was not intentionally directed in the State of Nebraska.
My review of the record reveals that none of the three defendants had sufficient contacts with Nebraska. Plaintiff has not alleged or argued that there is any purposeful contact with the State of Nebraska that relates to this case. Plaintiff has not alleged that any sexual assault occurred in Nebraska. Defendants did not purposely avail themselves of the privileges of acting within the state. At the time in question there was only one resident from Nebraska in the South Dakota facility. Defendants were not residents, were not incorporated in Nebraska, and did not advertise in Nebraska. Sky Ranch did not recruit the plaintiff, but, in fact, plaintiff's parents voluntarily sent him to South Dakota. The Archdiocese has virtually no contact with the State of Nebraska. At most, the Sky Ranch Foundation sent letters nationwide and 31 were sent to Nebraska residents. More significantly, these minor contacts have nothing to do with the sex abuse claim made by the plaintiff. None of the alleged tortious activity took place in Nebraska. All of the claims of sexual abuse took place in South Dakota and Illinois. There simply is no real relationship between the dispute in this case and the State of Nebraska. The contacts with the State of Nebraska are attenuated at best and are not sufficient to meet the minimum requirements of due process. I conclude that personal jurisdiction does not exist against any of the defendants in this case.
Defendants also argue that venue does not exist and the case should be dismissed on that basis alone. For the reasons set forth herein, I conclude in the alternative that venue is not appropriate pursuant to 28 U.S.C. § 1391(a)(3). The defendants are in South Dakota, none of the sexual assaults took place in Nebraska but occurred in South Dakota or Illinois, and the alleged kidnapping occurred in Wyoming and South Dakota. Venue is proper where the corporations reside and where the claims arose. Richards v. Aramark Services, Inc., 108 F.3d 925, 928 (8th Cir. 1997).
THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that:
1. Defendants' motions to dismiss, Filing Nos. 14, 15, 17 and 18, are hereby granted; and
2. This case is hereby dismissed.