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Franchini v. Bangor Publishing Co. Inc.

United States District Court, D. Maine

September 5, 2019

BANGOR PUBLISHING CO. INC. et al., Defendants.


          George Z. Singal, United States District Judge

         Before the Court is Defendant Sally Pipes' Motion to Dismiss (ECF No. 77). For the reasons explained herein, the Court GRANTS IN PART and DENIES IN PART the Motion.


         Plaintiff Thomas Franchini filed the operative Complaint (ECF No. 6) in this case on February 6, 2018. As relevant here, Franchini alleges that “[o]n or about” December 22, 2017, Investor's Business Daily (“IBD”) and Sally Pipes “caused to be published” an article entitled “VA Negligence is Killing Veterans.” (Compl. at PageID # 56.) That article (the “IBD Article”) states, among other things, that, while he was employed as a podiatrist at the VA Maine Healthcare System at Togus in Augusta, Maine (“VA Togus”), Franchini “botched 88 procedures.” (Id.) It also asserts that VA Togus later “allowed” Franchini to resign. (Id.) According to Franchini, this implies that VA Togus had initiated “some manner of formal investigation” into his care by the time he departed. (Id.) Franchini maintains that the above statements are false and defamatory because: (1) he never provided “substandard” care at VA Togus; and (2) when he resigned from VA Togus in November 2010, the VA had neither begun an investigation into his care nor accused him of substandard care. (Id. at PageID # 52.)

         Turning to procedural history, Franchini's original counsel passed away on February 23, 2018. Thereafter, the Court held a hearing on April 9, 2018, and granted Plaintiff thirty days to secure replacement counsel (ECF No. 23). Following two extensions (ECF Nos. 27 & 31), new counsel entered an appearance for Plaintiff in July 2018. (See ECF No. 34.) Franchini's new counsel (hereinafter, “Franchini's counsel”) then filed a Motion to Extend Time to file an opposition to Defendants' various dispositive motions (ECF No. 38). The Court granted that Motion, imposing a response deadline of August 31, 2018, and Franchini filed his Opposition on August 30, 2018. Therein, Franchini's counsel acknowledged that Pipes remained “unserved.” (Pl. Opp. (ECF No. 41), PageID # 217.) Four months later, on January 18, 2019, Franchini filed a Motion to Extend Time to serve Pipes (ECF No. 50), which the Court granted. In its Order, the Court noted that although Franchini had not shown “good cause” for the length of the service delay-as of January 18, 2019, it had been over 340 days since Plaintiff filed the Amended Complaint-several factors, including judicial efficiency, favored extension. (Order on Motion to Extend (ECF No. 54), PageID #s 347-48.) The Order also stated that Franchini “shall effect service” on Pipes by April 29, 2019. (Id. at PageID # 348.) Despite this, Franchini's counsel admits that Pipes did not receive proper service until June 14, 2019. (Pl.'s Resp. to Pipes' Mot. (ECF No. 81), PageID # 494; Aff. of Service (ECF No. 80), PageID # 468-69.)

         Notably, this belated service was not the first time that Franchini's counsel failed to adhere to a Court-ordered deadline. On April 16, 2019, the Court ordered expedited briefing regarding the impact of a notice of appeal filed by Co-Defendant IBD. Franchini's counsel failed to comply with that briefing schedule by filing a response at 6:25 p.m. on April 25, 2019, which was after the noon deadline and after the Court had already issued its Order (ECF No. 66). As a result, on April 26, 2019, the Court issued an Order (ECF No. 69) striking Franchini's belated response.

         On May 23, 2019, Pipes, still then awaiting proper service, filed the instant Motion to Dismiss. The Motion seeks dismissal of all claims against Pipes on the grounds that: (1) she is not subject to the Court's personal jurisdiction; (2) Plaintiff failed to properly serve her with process; and (3) the suit violates the Maine and California anti-SLAPP statutes. Fed.R.Civ.P. 12(b)(2) & (5); 14 M.R.S.A. § 556; Cal. Civ. Proc. Code § 425.16.


         “When a court's jurisdiction is contested” under Fed.R.Civ.P. 12(b)(2), “the plaintiff bears the burden of proving that jurisdiction lies in the forum state.” Sawtelle v. Farrell, 70 F.3d 1381, 1387 (1st Cir. 1995). “To establish personal jurisdiction in a diversity case, a plaintiff must satisfy both the forum state's long-arm statute and the Due Process Clause of the Fourteenth Amendment.” C.W. Downer & Co. v. Bioriginal Food & Sci. Corp., 771 F.3d 59, 65 (1st Cir. 2014). “Because the Law Court has deemed Maine's long-arm statute coextensive with the permissible exercise of personal jurisdiction under the Due Process Clause of the Fourteenth Amendment, the due process inquiry controls in the present case.” Lucerne Farms v. Baling Techs., Inc., 226 F.Supp.2d 255, 257 (D. Me. 2002).

         There are three recognized standards for determining whether the exercise of personal jurisdiction is lawful: the prima facie standard, the preponderance standard, and the likelihood standard. Rodriguez v. Fullerton Tires Corp., 115 F.3d 81, 83 (1st Cir. 1997); see Foster-Miller, Inc. v. Babcock & Wilcox Can., 46 F.3d 138, 145-47 (1st Cir. 1995) (outlining standards and circumstances under which they apply). Where, as here, the Court makes a jurisdictional ruling without holding an evidentiary hearing, the prima facie standard applies. Phillips v. Prairie Eye Ctr., 530 F.3d 22, 26 (1st Cir. 2008).

         Under that standard, the “inquiry is whether the plaintiff has proffered evidence which, if credited, is sufficient to support findings of all facts essential to personal jurisdiction.” Id. “It is not enough for [the plaintiff] to rely on unsupported allegations in [the] pleadings. Rather, [the plaintiff] must put forward evidence of specific facts to demonstrate that jurisdiction exists.” A Corp. v. All Am. Plumbing, Inc., 812 F.3d 54, 58 (1st Cir. 2016) (internal citations and quotations omitted). In assessing this showing, a court must credit all “properly documented” proffers and “construe them” in the best light for the plaintiff. Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 51 (1st Cir. 2002) (internal citations and quotations omitted).

         District courts have “broad discretion” in deciding requests for jurisdictional discovery. United States v. Swiss. Am. Bank, Ltd., 274 F.3d 610, 626 (1st Cir. 2010). To succeed in such a request, a plaintiff must demonstrate a “colorable” claim of personal jurisdiction and “present facts to the court which show why jurisdiction would be found if discovery were permitted.” Swiss Am. Bank, Ltd., 274 F.3d at 626; see Hopkins v. Yi, No. 4:18-cv-40197-TSH, 2019 WL 3547085, at *9 (D. Mass. May 31, 2019) (rec. dec., aff'd June 25, 2019) (quoting BLACK'S LAW DICTIONARY (10th ed. 2014)) (defining a “colorable claim” as one “that is legitimate and that may reasonably be asserted, given the facts presented and the current law”). “Failure to allege specific contacts, relevant to establishing personal jurisdiction, in a jurisdictional discovery request can be fatal to that request.” Swiss Am. Bank, Ltd., 274 F.3d at 626-27.


         The Court holds that dismissal of all claims against Pipes is warranted due to lack of personal jurisdiction and failure to properly serve process. See Fed.R.Civ.P. 12(b)(2) & (5). First, under Rule 12(b)(2), Plaintiff has neither met his burden of establishing the Court's personal jurisdiction over Pipes, nor demonstrated a claim of jurisdiction that would justify jurisdictional discovery. Second, under Rule 12(b)(5), Plaintiff, without “good cause, ” ...

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