Pharma Services Network, Inc. v. Associated Medical Group, Corp., June 26, 2009 (Diaz)(unpublished)

The Court denied a motion for "alternative service of process" on a foreign defendant, ruling that the Plaintiff had not shown it had exhausted the traditional means of service available under Rule 4(j3) by attempting service through the means specified in the Hague Convention.

The Court further stated that if Plaintiff could not with due diligence serve the foreign defendant through traditional means, that it would allow for service of process by publication.  The Court referenced an earlier order in another case in which it had done so.

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Hinson v. Trigon Healthcare, Inc., August 23, 2001 (Tennille)(unpublished)

This was a dispute between insurance agents and an insurer for which they had sold policies.

Plaintiff asserted that the Court had personal jurisdiction over a parent company with an indirect subsidiary in North Carolina based on the alter ego doctrine.  The Court held that "if [the parent] has dominated and controlled. . . a second tier subsidiary doing business in North Carolina, to the extent that the corporate veil may be pierced, such action would justify assertion of jurisdiction over the parent."  Although the Court found the allegations of dominance to be somewhat vague and ambiguous, it found that there were questions of fact whether the corporate veil could be pierced, and denied the motion, suggesting that it be renewed at a later date.  The Court observed that "it will not be sufficient for plaintiffs to establish only a parent-subsidiary relationship and some involvement in the subsidiary’s business by the parent. The burden will be much heavier."

The Court dismissed, based on lack of personal jurisdiction, claims against several officers of one of the corporate defenants.  It held "plaintiffs may not assert jurisdictionover a corporate agent without some affirmative act committed in his individual official capacity," which the Court found to be lacking.  The Court found that it did have jurisdiction over one of the officers, who had been alleged to have made misrepresentations to the Plaintiffs while at a meeting in North Carolina. 

Also dismissed was a negligence claim, because the Court found that duties of the parties to be defined by their contract.  The Court noted the narrow circumstances under which North Carolina recognizes a claim for negligent breach of contract, and held that allowing such a claim would "open this particular tort to all parties to a contract."

Claims for tortious interference with contract were also dismissed, because Defendant's conduct in notifying insurance policyholders that Defendant would be exiting the insurance business and that they should find new insurance had a legitimate business purpose. 

The Court found insufficient aggravating circumstances to make out an unfair and deceptive practices claim, and dismissed that claim as well.

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Covenant Equipment Corp. v. Forklift Pro, Inc., 2008 NCBC 10 (N.C. Super. Ct. May 1, 2008)(Tennille)

Service of process can be made by leaving the Summons and Complaint at the Defendant's residence, even though not in literal compliance with Rule 4, if the Defendant has evaded service.

The Defendant will waive an objection to service (and to jurisdiction) by filing a Notice of Designation to the North Carolina Business Court, because "the filing of a Notice of Designation in an action constitutes a general appearance for the purpose of personal jurisdiction."  To keep such objections alive, the Notice of Designation must contain an objection to personal jurisdiction. 

On a covenant not to compete issue, the Court followed the principle it set out in Better Bus. Forms & Prods., Inc. v. Craver, 2007 NCBC 34 (N.C. Super. Ct. Nov. 1, 2007) regarding the right of an asset purchaser to to enforce a non-compete entered into between the seller and an employee. The buyer has the option to enforce the noncompetition agreement or to enter into a new agreement. As the Court held: "a noncompetition agreement that has been sold as part of an asset sale, as opposed to the sale of a business, gives the buyer the right to enforce the noncompetition agreement as of the date of the sale but not to enforce the noncompetition agreement as if it had been entered into originally by the buyer."

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Brief in Support of Motion to Dismiss

Brief in Opposition to Motion to Dismiss

Reply Brief in Support of Motion to Dismiss

Deer Corp. v. Donahue, August 28, 2003 (Diaz)(unpublished)

The Court granted defendants' motion to dismiss for lack of personal jurisdiction based on their lack of minimum contacts with the State of North Carolina. The Court found that defendants had not made a general appearance in the case, and thereby waived their right to contest jurisdiction by participating in discovery, by asking the Court to set a peremptory trial date, and by asking to be excused from the mediation conference.

Full Opinion

Burgess v. Vitola, 2008 NCBC 4 (N.C. Super. Ct. Feb. 26, 2008)(Diaz)

The Court found that it lacked personal jurisdiction over out-of-state doctors and dentists who had allegedly sent internet advertising to plaintiff, a North Carolina resident.  The Court rejected plaintiff's argument that there was jurisdiction under N.C.G.S. §1-75.4(4)(a), which allows for the assertion of jurisdiction when “solicitation or services activities were carried on within this State or by or on behalf of the defendant.”

The Court stated that “it makes absolutely no sense that Moving Defendants, all of whom operate law or dental practices in states far removed from North Carolina, would have any interest in soliciting [plaintiff], or any other North Carolina resident.” The defendants, via affidavits, in fact denied such interest.

The Court relied on the North Carolina Court of Appeals decision in Havey v. Valentine, 172 N.C. App. 812, 616 S.E.2d 642 (2005), in which the appellate court held that “a person who simply places information on the Internet does not subject himself to jurisdiction in each State into which the electronic signal is transmitted and received.”

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Mascaro v. Mountaineer Land Group, LLC, 2006 NCBC 18 (N.C. Super. Ct. Nov. 14, 2006)(Diaz)

The out of state defendant, who had received payments from the plaintiff on a promissory note, was subject to personal jurisdiction in North Carolina. Money was a "thing of value" within the meaning of the North Carolina long arm statute. The Court further found that it had specific jurisdiction over the defendant with regard to the matters at issue, which involved the same development project on which he had received payment pursuant to the promissory note.

The Court granted defendant's motion to dismiss, however, finding that plaintiff had failed to state a claim under the North Carolina Uniform Fraudulent Transfer Act because its claims were barred by the one year statute of limitation of N.C.G.S. §39-23.9, and also because the plaintiff had failed to plead the debtor's intent to defraud its creditors. The Court also rejected plaintiff's claims that it was entitled to a constructive trust.

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Coker v. DaimlerChrysler Corp., 2004 NCBC 1 (N.C. Super. Ct. Jan. 6, 2004)(Tennille), aff'd, 172 N.C. App. 386, 617 S.E.2d 306 (2005), aff'd per curiam, 360 N.C. 398, 627 S.E.2d 461 (2006)

In this class action against an automobile manufacturer, plaintiffs claimed that the manufacturer had committed fraud by advertising the safety of its vehicles even though they did not have a brake shift interlock system. Plaintiff sought damages -- even though they had suffered no injury as yet -- and an injunction ordering a recall of the vehicles.

The Court granted summary judgment because the only loss suffered by plaintiffs was theoretical loss in the value of their vehicles, and such a claim was barred by the economic loss doctrine. Allowing such a claim would have circumvented the contract warranty frameork.

The injunctive claim for a recall was preempted by the federal scheme of the National Traffic and Motor Vehicle Safety Act of 1966. The Court further ruled that the doctrine of primary jurisdiction, which required it to defer to the administrative agency responsible for claims involving design defects in automobiles, barred it from considering this claim.

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Springer-Eubank Co. v. Four County Electric Membership Corp., 1999 NCBC 8 (N.C. Super. Ct. Oct. 13, 1999)(Tennille), aff'd, 142 N.C.App. 496, 543 S.E.2d 197 (2001)

Action by plaintiff alleging that defendants had engaged in action in violation of statute was rendered moot by amendment of statute. The Court lacked subject matter jurisdiction as a result of the amendment.

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Peterson v. Robertson, 1999 NCBC 2 (N.C. Super. Ct. May 25, 1999)(Tennille), rev'd and remanded, 140 N.C.App. 386, 540 S.E.2d 79 (2000)

An alleged threat made over the telephone by was sufficient for the court to exercise personal jurisdiction over the defendant.

Full Opinion