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Lattanzio v. Brunacini

United States District Court, E.D. Kentucky, Central Division, Lexington

March 20, 2018

JAMES LATTANZIO, Plaintiff,
v.
MAYME BRUNACINI, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Danny C. Reeves, United States District Judge

         This matter is pending for consideration of Defendant NBCUniversal, LLC's (“NBCU”) motion to dismiss Plaintiff James Lattanzio's Amended Complaint and motion for a more definite statement. [Record No. 75] NBCU argues that the claims asserted against it by Lattanzio should be dismissed pursuant to Rule 12(b)(2) and (6) of the Federal Rules of Civil Procedure. NBCU moves in the alternative for a more definite statement pursuant to Rule 12(e) of the Federal Rules of Civil Procedure. For the reasons explained below, the defendant's motion to dismiss for lack of personal jurisdiction will be granted.[1]

         I.

         The claims against NBCU arise out of injuries allegedly caused by an October 1, 2015 news report aired by WLEX Communications, LLC (“WLEX”) on WLEX Channel 18 and a related report WLEX published on its website. [Record No. 60, ¶¶ 4, 24] Lattanzio initially filed this action against Defendants Mayme Brunacini and La Mame Kentucky, LLC, on May 31, 2016. [Record No. 1] He then filed an Amended Complaint on November 22, 2017, which added NBCU as a defendant and contained claims of defamation, gross negligence and abuse of process under Kentucky common law. [Record No. 60] NBCU then moved to dismiss Lattanzio's Amended Complaint for lack of personal jurisdiction and for failure to state a claim.

         II.

         The plaintiff has the burden of establishing personal jurisdiction. Conn v. Zakharov, 667 F.3d 705, 711 (6th Cir. 2012). He must make a two-part prima facie showing to survive a motion to dismiss under Rule 12(b)(2) of the Federal Rules of Civil Procedure. First, the plaintiff must demonstrate that “jurisdiction is proper under a long-arm statute or other jurisdictional rule of . . . the forum state.” Second, he must show that “the Due Process Clause also allows for jurisdiction under the facts of the case.” Id. The analysis ends if either part of the test is not met. See Id. at 711-12 (“[I]f jurisdiction is not proper under the Due Process Clause[, ] it is unnecessary to analyze jurisdiction under the state long-arm statute, and vice-versa.”).

         However, the prima facie burden is “‘relatively slight.'” Air Prods. & Controls, Inc. v. Safetech Int'l, Inc., 503 F.3d 544, 549 (6th Cir. 2007) (quoting Am. Greetings Corp. v. Cohn, 839 F.2d 1164, 1169 (6th Cir. 1989)). In determining whether a plaintiff has made this necessary showing, the Court views the parties' submissions “in a light most favorable to the plaintiff, ” disregarding any contrary assertions by the defendant. Id. (citing Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir. 1991)). Nevertheless, “the plaintiff may not stand on his pleadings but must, by affidavit or otherwise, set forth specific facts showing that the court has jurisdiction.” Theunissen, 935 F.2d at 1458; see also Kroger Co. v. Malease Foods Corp., 437 F.3d 506, 510 (6th Cir. 2006) (for purposes of a 12(b)(2) motion, a prima facie case consists of “specific facts that support a finding of jurisdiction”).

         III.

         “When a federal court sits in diversity, it may exercise personal jurisdiction over an out-of-state defendant only if a court of the forum state could do so.” Newberry v. Silverman, 789 F.3d 636, 641 (6th Cir. 2015) (citing Kerry Steel Inc. v. Paragon Indus., Inc., 106 F.3d 147, 148 (6th Cir. 1997)). Personal jurisdiction over a nonresident defendant under Kentucky's long-arm statute consists of a two-step process. The Court first must look to see if the cause of action arises from the type of conduct or activity enumerated in the statute. Caesars Riverboat Casino, LLC v. Beach, 336 S.W.3d 51, 57 (Ky. 2011). A claim “arises from” certain conduct when there is a “reasonable and direct nexus” between the conduct causing injury and the defendant's activities in the state. Id. at 59. If the conduct or activity does not fall under the categories enumerated in the long-arm statute, then the defendant is not subject to personal jurisdiction in Kentucky. Id. at 57. If, however, the conduct does fall under the long-arm statute, the Court must assess if exercising personal jurisdiction over the nonresident defendant offends its federal due process rights. Id.

         In relevant part, Kentucky's long-arm statute provides for personal jurisdiction over an out-of-state defendant when a claim “arises from”:

         (1) Transacting any business in this Commonwealth;

         (2) Contracting to supply services or goods in this Commonwealth; KRS § 454.210(2)(a). Lattanzio has only made conclusory allegations regarding NBCU's contacts with Kentucky.

         First, he argues that NBCU transacts business in Kentucky by relying on two declarations filed in an unrelated case from the United District Court for the Southern District of New York. [Record Nos. 82');">82, pp. 2-3; 82');">82-2, pp. 1-8] But these declarations cited in and attached to Lattanzio's Response do not provide support for the contention that NBCU transacts business in Kentucky. They contain only factual allegations involving NBC Universal Media, LLC, a wholly owned subsidiary of NBCU.[2] See Record No. 75-2, ¶ 3.

         Not only has the issue of personal jurisdiction over NBC Universal Media, LLC been decided by the Scott Circuit Court, but in the absence of an alter-ego relationship, personal jurisdiction is proper only if a parent corporation directly maintains contacts and activities with the forum. See Modern Holdings, LLC v. Corning Inc., 2015 WL 1481443, at *5 (E.D. Ky. Mar. 31, 2015); see also, e.g., Estate of Thomson ex rel. Estate of Rakestraw v. Toyota Motor Corp. Worldwide, 545 F.3d 357, 362 (6th Cir. 2008) (adopting alter-ego theory of personal jurisdiction in parent-subsidiary context). Here, Lattanzio has made no arguments that the separate NBC entities are merely NBCU's alter ego. Instead, he only makes a passing reference stating “NBC owns or directs these other Scott [Circuit Court] case ...


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