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Crum v. Estate of Mayberry

United States District Court, Eastern District of Kentucky, Southern Division, Pikeville

December 11, 2014

ESTATE OF VICKI C. MAYBERRY, et al., Defendants.


Amul R. Thapar, United States District Judge

Plaintiff Phillip Crum seeks tort damages from his late sister and former guardian, Vicki Mayberry, and her husband, Mark Mayberry. Crum alleges that the couple stole funds from his bank account while Vicki Mayberry acted as his guardian and managed his financial affairs. But Crum’s family ties are not enough to allow him to bring suit in a Kentucky court against his brother-in-law Mark Mayberry in his individual capacity.[1] Because Mayberry’s conduct does not create sufficiently strong connections to the Commonwealth of Kentucky to allow this Court to exercise jurisdiction over him, Crum must look to another forum to pursue claims against his out-of-state relation.


In 2003, the Martin County District Court adjudged Phillip Crum to be wholly disabled. R. 23 ¶ 2. The court appointed a series of guardians to manage the payments Crum received when he settled his personal injury claims. Id. ¶¶ 2, 4, 6. The last of these guardians was Crum’s sister, Vicki Mayberry. Id. ¶ 6. Although Vicki Mayberry resided in Michigan, she accepted the guardianship appointment from the Kentucky court and posted a $10, 000.00 bond. Id. ¶¶ 6, 7. Crum claims, however, that while Vicki Mayberry acted as his guardian, she and her husband Mark Mayberry withdrew funds from Crum’s bank accounts and improperly used the money to satisfy their own personal financial obligations. Id. ¶¶ 26– 50.

Crum initially filed and amended his complaint against the Mayberrys in state court. See R. 1-1, 1-2 (State court complaint). After removing the case, Mark Mayberry promptly moved to dismiss the amended complaint against him in his individual capacity for lack of personal jurisdiction. See R. 3; R. 4. The Court permitted Crum to amend his complaint in response to the motion to dismiss. The Court also explained that Crum may establish facts in support of personal jurisdiction over Mark Mayberry at an evidentiary hearing if his second amended complaint survives a motion to dismiss. R. 21; R. 22 (granting leave to file an amended complaint). The Court subsequently construed Mark Mayberry’s answer to the second amended complaint in part as a motion to dismiss and ordered Crum to respond to the defenses under Rule 12(b). See R. 26. In his briefs, Mark Mayberry only seeks to dismiss the action against him in his individual capacity for lack of personal jurisdiction, so the Court just reaches that claim. See R. 28 (referring to the arguments raised in the memorandum and reply brief in support of the original motion to dismiss for lack of personal jurisdiction).


The Court may only adjudicate claims against Mark Mayberry by exercising either general jurisdiction or specific jurisdiction over him. To exercise general jurisdiction, the Court must find that Mayberry’s contacts with Kentucky are of such a “continuous and systematic nature” that he could be sued for any conduct—not just for actions related to his contacts with Kentucky. Bird v. Parsons, 289 F.3d 865, 873 (6th Cir. 2002). To exercise specific jurisdiction over Mark Mayberry, this Court must apply a two-step test prescribed by Kentucky law. See Reynolds v. Int’l Amateur Athletic Fed’n, 23 F.3d 1110, 1115 (6th Cir. 1994) (noting that courts must apply the law of the state in which they sit in order to determine whether there is personal jurisdiction over a defendant). First, the Court must find that Mayberry’s conduct falls under the terms of Kentucky’s long-arm statute. Caesars Riverboat Casino, LLC v. Beach, 336 S.W.3d 51, 57 (Ky. 2011); see also Ky. Rev. Stat. Ann. § 454.210. Only then may the Court assure itself that exercising personal jurisdiction over the non-resident Mayberry will not offend his federal due process rights. Caesars, 336 S.W.3d at 57. As discussed below, Crum does not set forth in his complaint sufficient facts to make the required prima facie showing that this Court has jurisdiction—general or specific—over Mark Mayberry. See Air Prods. & Controls, Inc. v. Safetech Int’l, Inc., 503 F.3d 544, 549 (6th Cir. 2007) (specifying that a plaintiff must only make a prima facie showing that personal jurisdiction exists in response to a motion to dismiss for lack of personal jurisdiction).

I. Mark Mayberry Does Not Possess the Type of Extensive Contacts to Kentucky Necessary for General Jurisdiction.

The Court may exercise general jurisdiction over Mark Mayberry if he maintains the type of “pervasive” connections to Kentucky that “approximates physical presence.” See Bird, 289 F.3d at 874 (citing Bancroft & Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d 1082, 1086 (9th Cir. 2000)). To show that Mayberry has strong connections to Kentucky, Crum claims that Mayberry accompanied his wife on her trips to Kentucky to manage Crum’s estate over several years. See R. 23 ¶¶ 52–53. Crum also states that Mayberry inherited real property in Kentucky. R. 27 at 6.

But Mark Mayberry’s property ownership and travel to the jurisdiction cannot, as a matter of law, establish the type of contacts that this Court needs to exercise general jurisdiction over him for a suit unrelated to his property or travel. See Conn v. Zakharov, 667 F.3d 705, 718–19 (6th Cir. 2012) (holding as a matter of federal due process that a defendant’s ownership of property in a state and annual non-business travel to the forum did not suffice to establish general jurisdiction); Nationwide Mut. Ins. Co. v. Tryg Int’l Ins. Co., Ltd., 91 F.3d 790, 794 (6th Cir. 1996) (citing Landoil Res. Corp. v. Alexander & Alexander Servs., Inc., 918 F.2d 1039, 1045–46 (2d Cir. 1991) (standing for the proposition that thirteen trips over the course of eighteen months did not constitute “continuous and systematic” contacts to the forum state). The Conn court further noted that a defendant’s travel is unlikely to establish the type of contact necessary for general jurisdiction where he does not engage in business in the forum. 667 F.3d at 719. And Mark Mayberry—unlike his wife— was not appointed as Crum’s guardian and therefore did not travel to Kentucky to conduct any official business related to managing Crum’s estate. Because Crum failed to set forth facts that demonstrate that Mark Mayberry had “continuous and systematic” contacts with Kentucky, he does not establish a prima facie case for general jurisdiction. Conn, 667 F.3d at 711.

II. Vicki Mayberry’s Actions Do Not Provide Grounds for Asserting Specific Jurisdiction over Mark Mayberry as an Individual.

Crum attempts to establish Mark Mayberry’s contacts with Kentucky through the acts of his spouse. Specifically, Crum claims that while Vicki Mayberry was his Court-appointed guardian, she “persistently wrote checks” drawing from Crum’s bank account to fulfill her and Mark Mayberry’s financial obligations. See R. 23 ¶¶ 26–39. But Vicki Mayberry’s conduct has no bearing on whether Mark Mayberry is subject to suit in the Commonwealth. Mark Mayberry must himself engage in actions that create a substantial connection with the forum: He cannot be subject to suit as a result of the “unilateral activity of another party or third person.” Air Prods., 503 F.3d at 551; Hanson v. Denckla, 357 U.S. 235, 253 (1958) (“The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State.”); see also Schneider v. Hardesty, 669 F.3d 693, 701 (6th Cir. 2012) (noting that a defendant should not be “haled into a jurisdiction solely as a result of . . . the unilateral activity of another party or a third person”).

Subjecting Mark Mayberry to suit in this Court on account of Vicki Mayberry’s conduct is the type of “unilateral activity” that courts have found insufficient to establish territorial jurisdiction. See Mahler v. Startari, 142 F. App’x 839, 841–42 (6th Cir. 2005) (determining that the court could not exercise jurisdiction over a director of a company based on the actions of a co-director); Air Prods., 503 F.3d at 551 (upholding the exercise of personal jurisdiction because the defendants’ contacts to the state were not “simply the result of unilateral activity” on the part of a third party). So Crum cannot rely on the facts in his complaint alleging that Vicki Mayberry “wrote checks” for her and Mark Mayberry’s benefit to “hale” Mark Mayberry into this Court. See Schneider, 669 F.3d at 701.

Crum alternatively argues that the Court should ascribe Vicki Mayberry’s tortious conduct to Mark Mayberry for the purpose of determining jurisdiction because Vicki Mayberry acted as Mark Mayberry’s “agent.” R. 27 at 4. The Sixth Circuit has not determined whether the acts of a co-defendant in furtherance of a common purpose can subject a non-resident defendant to personal jurisdiction under a long-arm statute. SeeChrysler Corp. v. Fedders Corp., 643 F.2d 1229, 1237 (6th Cir. 1981) (neither adopting nor rejecting the so-called agency or conspiracy theory of in personam jurisdiction as a general principle of law in the circuit). Yet, even if the Court embraced this theory for establishing personal jurisdiction, Crum would still not succeed in bringing his claims against Mark Mayberry. Crum does not plead any facts in his complaint tending to show that Vicki and Mark Mayberry were in a conspiracy, that Mark Mayberry agreed to join the conspiracy, or that Vicki Mayberry acted in furtherance of the conspiracy within the forum’s boundaries. See Id. at 1237 (holding that mere allegations of conspiratorial activities with tortious consequences in the forum state are insufficient to support jurisdiction under the long-arm statute in the absence of some “minimal factual showing” of the defendant’s participation in the conspiracy); Ky. Speedway, LLC v. Nat’l Ass’n of Stock Car Auto Racing, Inc., 410 F.Supp.2d 592, 599 (E.D. Ky. 2006) (quoting Jung v. Ass’n of Am. Med. Colleges, 300 F.Supp.2d 119, 140 (D.D.C. 2004) (noting that ...

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