Peters v. Monroe

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 10 BYRON L PETERS, CASE NO. C20-1422 MJP 11 Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION TO 12 v. DISMISS 13 WILLIAM HANES MONROE JR, KIP ANDREW HARBISON, MARK 14 CHRISTIAN GRECO, THE LAW OFFICE OF GLASSER AND 15 GLASSER PLC, 16 Defendants.

This matter comes before the Court on Defendants’ Motion to Dismiss. (Dkt. No. 24.)

Having reviewed the Motion, Plaintiff’s Opposition (Dkt. No. 35), the Reply (Dkt. No. 38), and all supporting materials, the Court GRANTS the Motion and DISMISSES this action.

BACKGROUND Plaintiff Byron Peters, acting pro se, brings breach of fiduciary duty and fraud claims against the attorneys who handled the settlements of his deceased grandfather’s asbestos-related wrongful death claims. The attorneys are defendants William Monroe, Jr., Kip Harbison, and Mark Greco, (Complaint (Dkt. No. 5)), though Peters has dismissed his claims against Defendants’ firm, Glasser & Glasser P.L.C. (Dkt. No. 29). Defendants move to dismiss Peters’ Complaint for: (1) lack of personal jurisdiction; (2) improper venue; (3) insufficient service of service; and (4) failure to state a claim. The Court reviews the relevant allegations.

5 In May 2018, Peters learned that he was a statutory beneficiary to his deceased grandfather’s estate. (Compl. at 7-8.) His aunt informed him that lawyers for the estate in Virginia (Defendants) would be sending him documents to sign so that they could “process the negotiated wrongful death settlement payments to the statutory beneficiaries.” (Id. at 8-9.) The paperwork Peters received included a proposed agreement between the statutory beneficiaries to the estate, that would split the net settlement and grant Defendants’ law firm a limited power of attorney. (Ex. 1 to Complaint.)

12 Peters initially refused to sign the paperwork and sought to challenge the settlements with Defendants’ assistance. (Compl. at 9.) Harbison refused to assist, informing Peters that only the Administrator of his grandfather’s estate had standing to challenge the settlements. (Id. at 11.)

15 Peters also demanded an accounting of the settlements, but Harbison refused, noting that he represented only the estate, not the beneficiaries. (Id. at 11-12.) But he did inform Peters that he could retain his own counsel to investigate the issue. (Id.) Peters alleges that Harbison “intentionally deceived and confused” him on these issues to convince him to sign a statutory beneficiary agreement to obtain his beneficiary interest to three settlements. Ultimately Peters signed the statutory beneficiary agreement, but claims he did so under duress. (Ex. 1 to Compl.

21 (Dkt. No. 5 at 5-1 at 1).)

22 Peters claims that Defendants actually settled the estate’s claims for more money and fraudulently diverted funds to themselves through a widespread scheme including Virginia court judges and staff. Peters filed a complaint against Defendants with the Virginia Bar Association, but it was dismissed. He then filed his Complaint in this District against Defendants, all of whom are residents of Virginia.

4 Defendants provide declarations attesting to their lack of contacts to Washington and this District. All three Defendants aver they own no property in Washington, have no bank accounts in Washington, solicit no clients in Washington, represent no Washingtonians, and possesses no professional licenses in Washington. (Declaration of Kip Harbison ¶¶ 13-14; Declaration of William Monroe, Jr. ¶¶ 10-11; Declaration of Marc Greco ¶¶ 6-7.) Greco states that he has taken six business trips to Washington over the last twenty years, and Monroe has not been in the state for the last ten years. (Greco Decl. ¶ 7; Monroe Decl. ¶ 11.)

11 ANALYSIS A. Lack of Personal Jurisdiction 13 The Court agrees with Defendants that it cannot exercise personal jurisdiction over them.

14 1. Legal Standard 15 In opposing a motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of establishing that jurisdiction is proper. Boshcetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008). Where, as here, Defendants’ motion is based on written materials rather than an evidentiary hearing, “the plaintiff need only make a prima facie showing of jurisdictional facts to withstand the motion to dismiss.” Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1127 (9th Cir. 2010) (internal quotation marks omitted). And while the plaintiff cannot “simply rest on the bare allegations of its complaint,” the uncontroverted allegations in the complaint must be taken as true. See Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004) (quotation and citation omitted). If the allegations are contested, the Court “may not assume the truth of allegations in a pleading which are contradicted by affidavit.” CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d 1066, 1073 (9th Cir. 2011) (quotation and citation omitted).

3 But the Court resolves factual disputes in the plaintiff’s favor. Pebble Beach Co. v. Caddy, 453 4 F.3d 1151, 1154 (9th Cir. 2006).

5 Whether there is personal jurisdiction over Defendants begins with an assessment of Washington’s “long-arm” statute of Washington. Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co., 284 F.3d 1114, 1123 (9th Cir. 2002). Washington’s long-arm statute, RCW 4.28.185, reaches as far as the due process clause will allow. Shute v. Carnival Cruise Lines, 113 9 Wn.2d 763, 767 (1989). To conform to due process, the plaintiff must show that the Court has either general or specific jurisdiction.

11 General jurisdiction flows from a non-resident defendant’s continuous, systematic business contacts with Washington, not necessarily the acts alleged in the complaint. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984). Specific jurisdiction arises out of the defendant’s forum-related activities provided the defendant has had “fair warning” that its activities in Washington may subject it to the jurisdiction of courts in this forum. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985); Helicopteros, 466 U.S. 17 at 414 n.8. Specific jurisdiction comports with due process if the defendants have “minimum contacts [with Washington] such that jurisdiction does not offend traditional notions of fair play and substantial justice.’” Pebble Beach, 453 F.3d at 1155 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 315 (1945)). The Court conducts a three-part inquiry to determine whether “minimum contacts” with the forum exist to warrant the court’s exercise of specific jurisdiction: 22 (1) the defendant must either “purposefully direct his activities” toward the forum or “purposefully avail[ ] himself of the privileges of conducting activities in the forum”; 23 (2) “the claim must be one which arises out of or relates to the defendant's forum-related activities”; and 1 (3) “the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.”

AMA Multimedia, LLC v. Wanat, 970 F.3d 1201, 1208 (9th Cir. 2020) (quoting Axiom Foods, Inc. v. Acerchem Int’l, Inc., 874 F.3d 1064,1068 (9th Cir. 2017)). Because Peters alleges tort- based claims, the Court employs a “purposeful direction” analysis to assess the “minimum contacts” inquiry. Id. at 1208.

Given the allegations Peters makes about “tortious conduct [that] takes place outside the forum and has effects inside the forum,” the Court “examine[s] purposeful direction using an ‘effects test’ based on Calder v. Jones, 465 U.S. 783 (1984).” AMA, 970 F.3d at 1208. Under this test, “the defendant[s] allegedly must have (1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state.” Id. at 1209 (quotation omitted). As the Supreme Court has cautioned, “[t]he relationship must arise out of contacts that the defendant himself creates with the forum State,” which “must create a substantial connection with the forum State.” Walden v. Fiore, 571 U.S. 14 277, 284 (2014). “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 286.

2. No General or Specific Jurisdiction Based on the Court’s review of the Complaint and materials Defendants submitted, the Court finds a lack of general and specific jurisdiction.

As to general jurisdiction, Peters provides no argument or allegations that Defendants have systematic or continuous contacts with Washington. Defendants’ declarations demonstrate their contacts with Washington are neither systematic nor continuous. Harbison has never visited Washington and his only relevant contacts are through the letters he has exchanged with Peters, including the agreement authorizing Peters to receive benefits. Greco has visited Washington six times in the last twenty years, while Monroe has not been in the state for the last ten years.

3 (Greco Decl. ¶ 7; Monroe Decl. ¶ 11.) All three Defendants aver they own no property in Washington, have no bank accounts in Washington, solicit no clients in Washington, represent no Washingtonians, and possesses no professional licenses in Washington. (Harbison Decl. ¶¶ 13-14; Monroe Decl. ¶¶ 10-11; Greco Decl. ¶¶ 6-7.) The Court finds no general jurisdiction.

7 As to specific jurisdiction, the Court finds an absence of “minimum contacts” with Washington. Applying the “effects test,” the Court finds no purposeful direction aimed at Washington. See AMA, 970 F.3d at 1208. Peters makes no allegation that Greco or Monroe directed or conducted any act towards him in Washington. The only act that Peters identifies as directed at Washington was Harbison’s letters and the agreement he mailed to Peters in Washington. These transmissions were not expressly aimed at the forum state generally, just to Peters as the recipient who happens to live in this State. This does not show purposeful direction because, as the Supreme Court has stated, “a defendant’s relationship with a plaintiff or third party, standing alone, is an insufficient basis for jurisdiction.” Walden, 571 U.S. at 286. Instead, Harbison’s contacts with Washington are “based on the ‘random, fortuitous, or attenuated’ contacts” he made by sending correspondence to Peters who happens to reside in Washington.

18 Id. at 286. This does not show purposeful direction. The Court also notes that the other conduct about which Peters complains all appears to have occurred outside of this State, which does not justify finding personal jurisdiction over Defendants in this forum. The Court therefore finds it improper to exercise personal jurisdiction over Defendants in the absence of “minimum contacts.” The Court GRANTS Defendants’ Motion and DISMISSES the claims against Defendants for lack of personal jurisdiction.

1 CONCLUSION 2 Based on the Court’s review of the pleadings and the materials Defendants provided, it concludes that it cannot properly exercise personal jurisdiction over any of the Defendants. The Court therefore GRANTS Defendants’ Motion and DISMISSES this action. The Court does not reach any of the other issues Defendants raised because doing so was unnecessary to resolve the Motion.

7 The clerk is ordered to provide copies of this order to Plaintiff and all counsel.

8 Dated March 22, 2021.

A 10 Marsha J. Pechman United States District Judge