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SDMS - ECF 57 - 2012-10-26 - HI Defendants Motion to Dismiss

SDMS - ECF 57 - 2012-10-26 - HI Defendants Motion to Dismiss

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Published by Jack Ryan
Document Number: 57
Docket Text: MOTION to Dismiss for Lack of Jurisdiction over Dr. Alvin T. Onaka and Loretta J. Fuddy, MOTION to Dismiss for Failure to State a Claim for Relief; Insufficient Process; and Insufficiency of Service of Process by Loretta Fuddy, Alvin Onaka (Attachments: # (1) Exhibit Declaration of Dr. Alvin T. Onaka, # (2) Exhibit Declaration of Loretta Fuddy, # (3) Exhibit Affidavit of Audrey Y. Gibo)(Dukes, Walter)
Document Number: 57
Docket Text: MOTION to Dismiss for Lack of Jurisdiction over Dr. Alvin T. Onaka and Loretta J. Fuddy, MOTION to Dismiss for Failure to State a Claim for Relief; Insufficient Process; and Insufficiency of Service of Process by Loretta Fuddy, Alvin Onaka (Attachments: # (1) Exhibit Declaration of Dr. Alvin T. Onaka, # (2) Exhibit Declaration of Loretta Fuddy, # (3) Exhibit Affidavit of Audrey Y. Gibo)(Dukes, Walter)

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Categories:Types, Research, Law
Published by: Jack Ryan on Oct 26, 2012
Copyright:Attribution Non-commercial

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IN THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF MISSISSIPPIJACKSON DIVISIONDR. ORLY TAITZ, ESQ., ET AL. PLAINTIFFSV. CIVIL ACTION NO. 3:12cv280-HTW-LRADEMOCRAT PARTY OF MISSISSIPPI, ET AL. DEFENDANTSDEFENDANTS DR. ALVIN ONAKA AND LORETTA FUDDY’SMOTION TO DISMISS FOR LACK OF IN PERSONAM JURISDICTION PURSUANTTO FRCP 12(B)(2) OR IN THE ALTERNATIVE FOR FAILURE TO STATE A CLAIMFOR RELIEF PURSUANT TO FRCP 12(B)(6) AND 9(B) AND INSUFFICIENTPROCESS AND SERVICE OF PROCESS PURSUANT TO FRCP 12(B)(4) AND 12(B)(5)
COME NOW the Defendants, Dr. Alvin Onaka (hereinafter “Onaka”) and Loretta Fuddy(hereinafter “Fuddy”) (hereinafter collectively “Defendants”), by and through their counsel of record, Dukes, Dukes, Keating & Faneca, P.A., and pursuant to Rules 12(b)(2), 12(b)(4),12(b)(5), 12(b)(6), and 9(b) of the Federal Rules of Civil Procedure, file this, their Motion toDismiss for Lack of In Personam Jurisdiction or in the Alternative for Failure to State a Claimfor Relief and Insufficient Process and Service of Process, and without waiving the right to pleadand be heard on any other defenses would further show unto this Honorable Court the following:1.
 
This action was commenced by the filing of a Petition for Injunctive and DeclaratoryJudgment on or about February 14, 2012, in the Circuit Court of Hinds County,Mississippi as civil action number 251-12-107CIV, captioned “DR. ORLY TAITZ, ESQV. DEMOCRAT PARTY OF MISSISSIPPI, SECRETARY OF STATE OFMISSISSIPPI[.]”2.
 
On or about April 19, 2012, Dr. Orly Taitz, Esq. filed a First Amended Complaintasserting a statutory general election challenge under Miss. Code Ann. § 23-15-963,
Case 3:12-cv-00280-HTW-LRA Document 57 Filed 10/26/12 Page 1 of 7
 
2adding several new plaintiffs (hereinafter collectively “Plaintiffs”), several newdefendants (including Onaka and Fuddy), and asserting a claim against Defendants underthe Racketeer Influenced and Corrupt Organization Act (hereinafter “RICO”).3.
 
This matter was lawfully removed to the United States District Court of the SouthernDistrict of Mississippi, Jackson Division, on April 24, 2012, as this Court has federalquestion jurisdiction pursuant to 28 U.S.C. § 1331. [PACER Doc. 1].4.
 
Plaintiffs never effectuated service of the Summons and First Amended Complaint uponOnaka and Fuddy despite their allegation that personal service was performed on or aboutOctober 8, 2012.
1
[PACER Doc. 44].5.
 
Although this case involves at least one federal question based on the RICO claim, thePlaintiffs cannot establish through
 prima facie
evidence that this Court has personal jurisdiction over the defendants.
See Caldwell v. Palmetto State Sav. Bank 
, 811 F.2d 916,918 (5th Cir. 1987) (citing
 Burger King Corp. v. Rudzewicz
, 471 U.S. 462 (1985);
 Duplantier v. United States
, 606 F.2d 654, 663 (5th Cir. 1979),
cert. denied 
, 449 U.S.1076 (1981);
Club Assistance Program, Inc. v. Zukerman
, 594 F. Supp. 341, 344 (N.D.Ill. 1984) (personal jurisdiction must be established in RICO case)).6.
 
Under the jurisdictional provision of RICO, a civil action brought against an individualmay only be instituted “in the district court of the United States for any district in whichsuch person resides, is found, has an agent, or transacts his affairs.” 18 U.S.C. § 1965(a).7.
 
As it relates to Plaintiffs’ claims neither involving a federal statute nor involving a federalstatute that provides for service of process, this Court may “exercise personal jurisdictionover a non-resident defendant (1) as allowed under [Mississippi’s] long-arm statute;
and
 
1
 
See
¶¶ 17, 18,
supra
.
Case 3:12-cv-00280-HTW-LRA Document 57 Filed 10/26/12 Page 2 of 7
 
3(2) to the extent permitted by the Due Process Clause of the Fourteenth Amendment.”
 Mullins v. TestAmerica, Inc
., 564 F.3d 386, 398 (5th Cir. 2009) (emphasis added);
seealso Internet Doorway, Inc. v. Parks
, 138 F. Supp. 2d 773, 775 (S.D. Miss. 2001) (“[I]nfederal question cases where the federal statute in question does not provide for service of process, ‘a federal court, even in a federal question case, can use a state long-arm statuteonly to reach those parties whom a court of the state could also reach under it.’”) (quoting
 Burstein v. State Bar of Cal.
, 693 F.2d 511, 514 (5th Cir. 1982)).8.
 
Plaintiffs have not carried their burden of presenting
 prima facie
evidence in the FirstAmended Complaint to establish personal jurisdiction over the Defendant.
 Morris v. Medley,
No. 1:10cv389-LG-RHW, 2011 U.S. Dist. LEXIS 18452, at *5 (S.D. Miss. Feb.24, 2011).9.
 
Defendants do not reside in Mississippi, neither was found in Mississippi, neither hasagents in Mississippi, nor have either transacted any of their affairs in Mississippi as isrequired for personal jurisdiction based on the relevant provisions of RICO.
See
18U.S.C. § 1965(a).10.
 
Defendants do not maintain minimal contacts with the State of Mississippi to allow thisCourt to exercise personal jurisdiction over them.
See Charia v. Cigarette Racing Team, Inc.
, 583 F.2d 184, 186 (5th Cir. 1978);
Benjamin v. W. Boat Bldg. Corp.
, 472 F.2d 723,729 (5th Cir. 1973);
 R. Clinton Constr. Co. v. Bryant & Reaves, Inc.
, 442 F. Supp. 838,849-50 (N.D. Miss. 1977).11.
 
Because the facts do not establish that the Defendants have sufficient minimum contactswith the forum state, the exercise of personal jurisdiction over the Defendants would“offend traditional notions of fair play and substantial justice.”
 Asahi Metal Indus. Co. v.
Case 3:12-cv-00280-HTW-LRA Document 57 Filed 10/26/12 Page 3 of 7

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