Burgess v. Vitola

Burgess v. Vitola, 2008 NCBC 4

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF BUNCOMBE 07 CVS 4679

CHARLES BURGESS,

Plaintiff,

v.

RALPH VITOLA, JOHN D. McMAHON,
MICHAEL HANSON, ANTHONY
McLAUGHIN, GEORGE E. FRANCISCO,
JOHN CAUDILL, EDWARD P.
SHAUGHNESSY, LARRY E. BUCHANAN, ORDER & OPINION
KIM MICHAEL CULLEN, PHILLIP
DEBERARD, DAVID P. HILL, WILLIAM
WEST, DDS, STEPHANIE McGANN,
CRAIG Q. ADAMS, EDWARD J. LEE,
NEAL VAVRA, MARVIN SONNE, JASON
MORGAN, JEFFREY INGBER, MICHAEL
SINGLETON, MONA ENTEZAM,
KATHLEEN ABATE, THOMAS D.
JACKSON, JAY AUGENSTEIN, KISHOR
KULKARNI, RICO GATTI, JR., DAVID W.
SINGER, KENNETH FORDHAM, and
KIRK WILKIE,

Defendants.

Charles Burgess, Plaintiff, pro se.

Nexsen Pruet, LLC, by Travis Wheeler for Defendants Thomas D. Jackson,
Marvin Sonne, and Jeffrey Ingber.

Templeton & Raynor, P.A. by Kenneth R. Raynor for Defendants Craig Q.
Adams, Larry E. Buchanan, Ricco Gatti, Jr., Kishor Kulkarni, Kim Michael
Cullen, Philip Deberard, Michael Hanson, Edward P. Shaughnessy, Michael
Singleton, and Ralph Vitola.

Long, Parker, Warren & Jones, P.A. by Philip S. Anderson for Defendant
Kathleen Abate.
McAngus, Goudelock & Courie, PLLC by John E. Spainhour for Defendants
Anthony McLaughin and Neal Vavra.

David P. Hill, Defendant, pro se.

Biggers & Associates, PLLC by William Biggers for Defendant William West.

Diaz, Judge.

I.
STATEMENT OF THE CASE
{1} The Court has before it several motions.
{2} Defendants Jeffrey Ingber; Larry E. Buchanan; Kim Michael Cullen;
Philip Deberard; Ricco Gatti, Jr.; Michael Hanson; Kishor Kulkarni; Edward
Shaughnessy; Michael Singleton; Ralph M. Vitola; Thomas D. Jackson; Marvin
Sonne; Kathleen Abate; Neal Vavra; David P. Hill; and William West (collectively
the “Moving Defendants”) have moved to dismiss Plaintiff Charles Burgess’
(“Burgess”) Complaint pursuant to Rule 12(b) of the North Carolina Rules of Civil
Procedure.
{3} Specifically, Moving Defendants allege that this Court lacks personal
jurisdiction over them. Some Moving Defendants also allege that Burgess has not
properly served them with process; others allege that Burgess has failed to state a
valid claim for relief.
{4} Burgess has moved to strike portions of Jeffrey Ingber’s Brief in
support of his Motion to Dismiss.
{5} Burgess has also moved to stay resolution of Moving Defendants’
Motions to Dismiss while he conducts discovery on the issue of personal jurisdiction.
{6} Finally, Defendants Jeffrey Ingber, Thomas D. Jackson, Marvin Sonne,
and David Hill have moved for sanctions pursuant to Rule 11 of the North Carolina
Rules of Civil Procedure.
{7} Pursuant to Rule 15.4 of the General Rules of Practice and Procedure
for the North Carolina Business Court, the Court decides the Motions without a
hearing.
{8} After considering the Court file, the motions, briefs, and submissions
of the parties, and for the reasons set forth below, the Court (1) GRANTS the
Motions to Dismiss because it does not have personal jurisdiction over Moving
Defendants; (2) does not address the alternative bases for dismissal set forth in the
Motions to Dismiss; (3) DENIES Burgess’ Motion to Strike as to Jeffrey Ingber; (4)
DENIES Burgess’ Motion to Stay; and (5) DENIES the Motions of Jeffrey Ingber,
Marvin Sonne, Thomas D. Jackson, and David Hill for Rule 11 sanctions.

II.
THE FACTS
A.
SUMMARY OF PLAINTIFF’S CLAIMS
{9} Burgess filed his pro se Complaint on 19 September 2007.
{10} The unverified Complaint alleges that Defendants “collectively and
individually have hired or employed some Internet firm” to plant “a bug or virus or
worm” on Burgess’ computer, thus damaging the computer and invading his
property. (Compl. ¶¶ 31–32.)
{11} More accurately, however (as demonstrated by Exhibit 1 to Burgess’ 15
November 2007 Response to Ingber’s Motion to Dismiss)1 , Burgess’ chief complaint
is that the commercial websites of the various Defendants, all of whom operate law

1 Burgess’ Response also incorporates a Motion to Strike portions of Jeffrey Ingber’s Brief in support

of his Motion to Dismiss. The Court DENIES Burgess’ Motion to Strike.
or dental practices well outside of North Carolina, have found their way onto his
computer without (Burgess asserts) his authority or permission. 2

B.
THE MOVING DEFENDANTS
1.
JEFFREY INGBER
{12} Jeffrey Ingber (“Ingber”) is a dentist. (Ingber Aff. ¶ 1.) He lives in
Michigan and his practice is located in Pontiac, Michigan. (Ingber Aff. ¶ 1.)
{13} Ingber has never met, spoken with, or otherwise solicited Burgess.
(Ingber Aff. ¶ 3.)
{14} Ingber is not licensed to practice dentistry in North Carolina. (Ingber
Aff. ¶ 5.)
{15} Ingber has never advertised or solicited patients from outside of
Michigan “because such efforts would result in few, if any additional patients.”
(Ingber Aff. ¶ 4.)
{16} Ingber has never hired an “‘Internet firm’ to advertise [his] practice on-
line or for any other purpose.” (Ingber Aff. ¶ 6.)
2.
LARRY E. BUCHANAN
{17} Larry E. Buchanan (“Buchanan”) is an attorney. (Buchanan Aff. ¶ 2.)
He lives in Florida and the firm with which he practices has offices in Stuart and
Port St. Lucie, Florida. (Buchanan Aff. ¶¶ 2–3.)

2 On 25 January 2008, Burgess submitted a video purporting to show his computer browser veering

off unwillingly “to websites that whomever [sic] planted the bug, virus, or worm wants the Plaintiff
to view.” (25 Jan. 2008 Proffer 1.) Some of the Defendants have offered evidence suggesting that
Burgess may have staged this result by manipulating search terms in his computer’s Google and web
browser search windows. (Queen Aff. ¶¶ 4–5.) For purposes of these Motions, however, and even
though the video submitted by Burgess is not as compelling as he asserts, the Court accepts Burgess’
allegations as true.
{18} Buchanan has never met, spoken with, or otherwise solicited Burgess.
(Buchanan Aff. ¶ 12.)
{19} Buchanan is not licensed to practice law in North Carolina, nor has he
ever earned fees from practicing law in this state. (Buchanan Aff. ¶¶ 4– 5.)
{20} Buchanan’s firm contracts with Bell South to place local
advertisements for the firm, including a passive listing of the firm’s ad on Bell
South’s www.yellowbook.com website. (Buchanan Aff. ¶¶ 7, 9.) In addition,
Buchanan’s firm maintains two passive Internet websites, www.crarybuchanan.com
and www.protecttheinjured.com. (Buchanan Aff. ¶ 9.)
{21} Neither Buchanan nor his firm actively advertise in North Carolina,
through the Internet or otherwise. (Buchanan Aff. ¶ 9.)
3.
KIM MICHAEL CULLEN
{22} Kim Michael Cullen (“Cullen”) is an attorney. (Cullen Aff. ¶ 3.) He
lives in Florida and operates a law firm in Orlando, Florida. (Cullen Aff. ¶¶ 2–3.)
{23} Cullen does not practice law in North Carolina, nor has he ever earned
fees from practicing law in North Carolina. (Cullen Aff. ¶ 4.)
{24} Although Cullen’s firm maintains a passive Internet website, Cullen
and his firm do not actively advertise in North Carolina, through the Internet or
otherwise. (Cullen Aff. ¶¶ 4, 8.)
4.
PHILLIP DEBERARD
{25} Phillip Deberard (“Deberard”) is an attorney. (Deberard Aff. ¶ 3.) 3 He
lives in Florida and operates a two-attorney law firm with offices in Stuart and
Okeechobee, Florida. (Deberard Aff. ¶¶ 2–3.)
{26} Deberard is not licensed to practice law in North Carolina, nor has he
ever earned fees from practicing law in this state. (Deberard Aff. ¶ 4.)

3 Deberard’s affidavit identifies him as Phillip Deberard, III.
The caption of the Complaint, however,
does not make this distinction. The Court assumes that the proper Defendant is before it.
{27} Deberard’s firm contracts with Bell South to place local advertisements
for the firm, including a passive listing of the firm’s ad on Bell South’s
“Yellowpages.com” website. (Deberard Aff. ¶ 6.) In addition, Deberard’s firm
maintains a passive Internet website, www.flainjurylawyer.com, and has hired an
outside company to help local customers more easily find its website through
directional, non-invasive procedures, meaning that the firm’s website must be
specifically searched for and clicked on. (Deberard Aff. ¶¶ 6–7.)
{28} Neither Deberard nor his firm actively advertise in North Carolina,
through the Internet or otherwise. (Deberard Aff. ¶ 4.)

5.
RICCO GATTI, JR.
{29} Ricco Gatti, Jr. (“Gatti”) is a retired attorney. (Gatti Aff. ¶ 3.) He lives
in Tennessee and was formerly a partner with a firm in Memphis, Tennessee.
(Gatti Aff. ¶¶ 2–3.) He remains of counsel to the firm, but has not visited the firm’s
office for over a year. (Gatti Aff. ¶ 3.)
{30} Gatti is not licensed to practice law in North Carolina, nor has he ever
earned fees from practicing law in this state. (Gatti Aff. ¶ 4.)
{31} Gatti’s former firm contracts with AT&T to place local advertisements
for the firm, including a passive listing of the firm’s ad on AT&T’s
“Yellowpages.com” website. (Gatti Aff. ¶ 6.) In addition, Gatti’s former firm
maintains a passive Internet website. (Gatti Aff. ¶ 7.)
{32} Neither Gatti nor his former firm actively advertise in North Carolina,
through the Internet or otherwise. (Gatti Aff. ¶ 4.)
6.
MICHAEL HANSON
{33} Michael Hanson (“Hanson”) is an attorney. (Hanson Aff. ¶ 3.) He lives
in Florida and operates a two-attorney law firm with his brother in Orlando,
Florida. (Hanson Aff. ¶¶ 2–3.)
{34} Hanson is not licensed to practice law in North Carolina, nor has he
ever earned fees from practicing law in this state. (Hanson Aff. ¶ 4.)
{35} Hanson’s firm contracts with Bell South to place local advertisements
for the firm, including a passive listing of the firm’s ad on Bell South’s
“Yellowbook.com” website. (Hanson Aff. ¶ 7.) In addition, Hanson’s firm maintains
a passive Internet website. (Hanson Aff. ¶ 8.)
{36} Neither Hanson nor his firm actively advertise in North Carolina,
through the Internet or otherwise. (Hanson Aff. ¶ 4.)

7.
KISHOR KULKARNI
{37} Kishor Kulkarni (“Kulkarni”) is a dentist. (Kulkarni Aff. ¶ 3.) He lives
in New Jersey and operates a dental clinic with offices in New Brunswick and
Edison, New Jersey. (Kulkarni Aff. ¶¶ 2–3.)
{38} Kulkarni is not licensed to practice dentistry in North Carolina.
(Kulkarni Aff. ¶ 4.) He has never performed any dental work or received any fees
from performing dental work in North Carolina. (Kulkarni Aff. ¶ 4.)
{39} Kulkarni’s firm contracts with Verizon, Yellow Book, and Yellow Pages
to place local advertisements for the firm, including a passive listing of the firm’s ad
on the Yellow Pages’ website. (Kulkarni Aff. ¶ 6.) In addition, Kulkarni’s firm
maintains a passive Internet website and has hired an outside company to help
local customers more easily find its website through directional, non-invasive
procedures, meaning that the firm’s website must be specifically searched for and
clicked on. (Kulkarni Aff. ¶¶ 6–7.)
{40} Neither Kulkarni nor his firm actively advertise in North Carolina,
through the Internet or otherwise. (Kulkarni Aff. ¶ 4.)
8.
EDWARD SHAUGHNESSY
{41} Edward Shaughnessy (“Shaughnessy”) is an attorney. (Shaughnessy
Aff. ¶ 3.) He lives in Pennsylvania and operates a law firm in Easton,
Pennsylvania. (Shaughnessy Aff. ¶¶ 2–3.)
{42} Shaughnessy does not practice law in North Carolina, nor has he ever
earned fees from practicing law in this state. (Shaughnessy Aff. ¶ 4.)
{43} Although Shaughnessy’s firm maintains a passive Internet website,
Shaughnessy and his firm do not actively advertise in North Carolina, through the
Internet or otherwise. (Shaughnessy Aff. ¶¶ 4, 7.)

9.
MICHAEL SINGLETON
{44} Michael Singleton (“Singleton”) is a dentist. (Singleton Aff. ¶ 3.) He
lives in Michigan and operates a dental clinic in Saline, Michigan. (Singleton Aff.
¶¶ 2–3.)
{45} Singleton is not licensed to practice dentistry in North Carolina.
(Singleton Aff. ¶ 4.) He has never performed any dental work or received any fees
from performing dental work in North Carolina. (Singleton Aff. ¶ 4.)
{46} Singleton’s clinic contracts with AT&T to place local advertisements
for the firm, including a passive listing of the firm’s ad on AT&T’s
“Yellowpages.com” website. (Singleton Aff. ¶ 6.) In addition, Singleton’s clinic
maintains a passive Internet website and uses AT&T to place banner ads and
sponsor links on search engines like Google or Yahoo. (Singleton Aff. ¶¶ 6–7.)
However, all of these Internet advertising efforts are purely directional and non-
invasive, meaning that the clinic’s website must be specifically searched for and
clicked on. (Singleton Aff. ¶ 6.)
{47} Neither Singleton nor his clinic actively advertise in North Carolina,
through the Internet or otherwise. (Singleton Aff. ¶ 4.)
10.
RALPH M. VITOLA
{48} Ralph M. Vitola (“Vitola”) is an attorney. (Vitola Aff. ¶ 3.) He lives in
Florida and operates a law firm in Brooksville, Florida. (Vitola Aff. ¶¶ 2–3.)
{49} Vitola does not practice law in North Carolina, nor has he ever earned
fees from practicing law in this state. (Vitola Aff. ¶ 4.)
{50} Vitola’s firm contracts with Bell South to place local advertisements for
the firm, including a passive listing of the firm’s ad on Bell South’s
“Yellowpages.com” website. (Vitola Aff. ¶¶ 6.) In addition, Vitola’s firm maintains
a passive Internet website and has hired an outside company to help local
customers more easily find its website through directional, non-invasive procedures,
meaning that the firm’s website must be specifically searched for and clicked on.
(Vitola Aff. ¶¶ 6–7.)
{51} Neither Vitola nor his firm actively advertise in North Carolina,
through the Internet or otherwise. (Vitola Aff. ¶ 4.)
11.
THOMAS D. JACKSON
{52} Thomas D. Jackson (“Jackson”) is a dentist. (Jackson Aff. ¶ 1.) He
lives in Michigan and his practice is located in Lapeer, Michigan. (Jackson Aff. ¶ 1.)
{53} Jackson has never met, spoken with, or otherwise solicited Burgess.
(Jackson Aff. ¶ 3.)
{54} Jackson is not licensed to practice dentistry in North Carolina.
(Jackson Aff. ¶ 5.)
{55} Jackson has never advertised or solicited patients from outside of
Michigan “because such efforts would result in few, if any additional patients.”
(Jackson Aff. ¶ 4.)
{56} Jackson has never hired an “‘Internet firm’ to advertise [his] practice
on-line or for any other purpose.” (Jackson Aff. ¶ 6.)
12.
MARVIN SONNE
{57} Marvin Sonne (“Sonne”) is a dentist. (Sonne Aff. ¶ 1.) He lives in
Michigan and his practice is located in Trenton, Michigan. (Sonne Aff. ¶ 1.)
{58} Sonne has never met, spoken with, or otherwise solicited Burgess.
(Sonne Aff. ¶ 3.)
{59} Sonne is not licensed to practice dentistry in North Carolina. (Sonne
Aff. ¶ 5.)
{60} Sonne has never advertised or solicited patients from outside of
Michigan “because such efforts would result in few, if any additional patients.”
(Sonne Aff. ¶ 4.)
{61} Sonne has never hired an “‘Internet firm’ to advertise [his] practice on-
line or for any other purpose.” (Sonne Aff. ¶ 6.)
13.
KATHLEEN ABATE
{62} Kathleen Abate (“Abate”) is a dentist. (Abate Aff. ¶ 4.) She lives in
Michigan and is employed by a dental practice located in Detroit, Michigan. (Abate
Aff. ¶¶ 2–5.)
{63} Abate is not licensed to practice dentistry in North Carolina. (Abate
Aff. ¶ 4.) She has never performed any dental work or received any fees from
performing dental work in North Carolina. (Abate Aff. ¶¶ 4, 6.)
{64} Although her employer contracts with AT&T to maintain a passive
Internet website, www.mfamilydental.com, the overwhelming majority of its clients
reside in Detroit, Michigan, and therefore neither Abate nor her employer directly
advertise in North Carolina. (Abate Aff. ¶¶ 7–8, 10–12.)
14.
NEAL VAVRA
{65} Neal Vavra (“Vavra”) is a dentist. (Vavra Aff. ¶ 4.) He lives in
California and owns and operates a dental practice located in California. (Vavra
Aff. ¶¶ 2, 4.)
{66} Vavra has never met, spoken with, or otherwise solicited Burgess.
(Vavra Aff. ¶ 11.)
{67} Neither Vavra nor any one in his office is licensed to practice dentistry
in North Carolina. (Vavra Aff. ¶ 5.)
{68} Although his office previously maintained a passive Internet website,
Vavra never expected to obtain business from North Carolina residents, and
therefore never directed his advertising efforts toward anyone living in North
Carolina. (Vavra Aff. ¶¶ 10, 12, 14.)
15.
DAVID P. HILL
{69} David P. Hill (“Hill”) is an attorney. (Hill Aff. ¶ 4.) He lives in Florida
and is the sole owner and proprietor of a law office in Florida. (Hill Aff. ¶¶ 2, 4.)
{70} Hill has never met, spoken with, or otherwise solicited Burgess. (Hill
Aff. ¶ 16.)
{71} Hill does not practice law in North Carolina, nor has he ever earned
fees from practicing law in this state. (Hill Aff. ¶ 5.)
{72} Although Hill’s firm maintains a passive Internet website, Hill and his
firm do not actively solicit “business in the state of North Carolina by mail,
telephone, commercial bulk email, or otherwise.” (Hill Aff. ¶¶ 11, 14.)
16.
WILLIAM WEST
{73} William West (“West”) is a dentist. (West Aff. ¶ 4.) He lives in New
York and is the sole owner and proprietor of a dental practice in New York City,
New York. (West Aff. ¶¶ 2, 5.)
{74} West has never met, spoken with, or otherwise solicited Burgess.
(West Aff. ¶ 16.)
{75} West is only licensed to practice dentistry in New York. (West Aff. ¶
4.) He has never received compensation for services rendered in North Carolina or
for services rendered to anyone residing in North Carolina. (West Aff. ¶ 6.)
{76} Although West does maintain a passive Internet website hosted by
Yellowpages.com, he never had any intention of doing business with a North
Carolina resident, and therefore does not actively solicit business from anyone
living in North Carolina. (West Aff. ¶¶ 9, 11.)

III.
CONTENTIONS OF THE PARTIES
{77} Moving Defendants contend the Court has no basis for asserting
personal jurisdiction over them. 4 Several Moving Defendants (Ingber, Sonne,
Jackson, and Hill) also argue that Burgess should be sanctioned pursuant to Rule
11 of the North Carolina Rules of Civil Procedure for filing a frivolous lawsuit.
{78} Burgess responds that his Complaint sufficiently alleges that Moving
Defendants “used an agent or company or business to place these ads on his
computer” and that “[t]his allegation alone, unless refuted by believable evidence,
satisfies the requirements of N.C.G.S. 1-75.4 (4)(a)” with respect to personal
jurisdiction. (Burgess’ 15 Nov. 2007 Resp. Ingber Mot. Dismiss 3.)
{79} Burgess has also requested that certain portions of Defendant Ingber’s
Brief in Support of his Motion to Dismiss be stricken and that the Court stay any
ruling on Moving Defendants’ Motions to Dismiss while he conducts discovery on
the issue of personal jurisdiction.

IV.
LEGAL PRINCIPLES
{80} North Carolina courts employ a two-step analysis to determine
whether they have personal jurisdiction over a non-resident defendant: “First, the
transaction must fall within the language of the State’s ‘long-arm’ statute. Second,
the exercise of jurisdiction must not violate the due process clause of the fourteenth
amendment to the United States Constitution.” Tom Togs, Inc. v. Ben Elias Indus.
Corp., 318 N.C. 361, 364, 348 S.E.2d 782, 785 (1986) (citation omitted).

4Some Moving Defendants also allege that Burgess did not properly serve them with process; others

allege that Burgess has failed to allege a valid claim against them. Because the Court concludes
that it lacks personal jurisdiction over Moving Defendants, it does not address these alternative
arguments for dismissal.
{81} Our long-arm statute extends to North Carolina courts “the full
jurisdictional powers permissible under federal due process.” Dillon v. Numismatic
Funding Corp., 291 N.C. 674, 676, 231 S.E.2d 629, 630 (1977). In most cases then,
the personal jurisdiction inquiry collapses into an analysis of due process. Brown v.
Refuel Am., Inc., 652 S.E.2d 389, 391 (N.C. Ct. App. 2007).
{82} Once a defendant challenges personal jurisdiction, the plaintiff has the
burden of proving prima facie that a basis for jurisdiction exists. Wyatt v. Walt
Disney World, Co., 151 N.C. App. 158, 162, 565 S.E.2d 705, 708 (2002) (citation
omitted). Where the allegations of a plaintiff's complaint meet his initial burden of
proving the existence of jurisdiction, and where the defendant does not contradict
such allegations, they are accepted as true and deemed controlling. Id. at 163, 565
S.E.2d at 708.
{83} However, when a defendant supplements his motion with affidavits or
other supporting evidence, the allegations of the plaintiff's complaint “‘can no longer
be taken as true or controlling and [the plaintiff] cannot rest on the allegations of
the complaint,’ but must respond ‘by affidavit or otherwise . . . setting forth specific
facts showing that the court has jurisdiction.’” Id. (quoting Bruggeman v.
Meditrust Acquisition Co., 138 N.C. App. 612, 615–16, 532 S.E.2d 215, 218 (2000)).
{84} To comply with due process, a plaintiff must show minimum contacts
between the non-resident defendant and the forum such that allowing the suit does
not offend “traditional notions of fair play and substantial justice.” Tom Togs, 318
N.C. at 365, 348 S.E.2d at 786 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310,
316 (1945)).
{85} “When a controversy is related to or ‘arises out of' a defendant’s
contacts with the forum, [which courts characterize as ‘specific jurisdiction’] . . . a
‘relationship among the defendant, the forum, and the litigation’ is the essential
foundation of in personam jurisdiction.” 5 Helicopteros Nacionales de Colombia, S.A.

5 Courts may also exercise “general jurisdiction” over a defendant, meaning that a defendant may be

required to appear and defend lawsuits that are unrelated to his activities in a state, so long as there
are sufficient “‘continuous and systematic contacts’ between defendant and the forum state.”
v. Hall, 466 U.S. 408, 414 (1984) (quoting Shaffer v. Heitner, 433 U.S. 186, 204
(1977)).
{86} A plaintiff meets his burden on this issue if he proves that a
“defendant has taken deliberate action within the forum state or if he has created
continuing obligations to forum residents.” Havey v. Valentine, 172 N.C. App. 812,
815, 616 S.E.2d 642, 647 (2005) (quoting Ballard v. Savage, 65 F.3d 1495, 1498 (9th
Cir. 1995)). Put another way, “there must be some act by which the defendant
purposefully avails himself of the privilege of conducting activities within the forum
state, thus invoking the benefits and protections of its laws.” Tom Togs, 318 N.C. at
365, 348 S.E.2d at 786.
{87} Although contacts that are “isolated” or “sporadic” may support
personal jurisdiction if they create a “substantial connection” with the forum, the
contacts must be more than random, fortuitous, or attenuated. Burger King Corp.
v. Rudzewicz, 471 U.S. 462, 472–75 (1985). Moreover, while a defendant need not
be physically present within the forum, the evidence must show that his efforts
were purposefully directed toward forum residents. Id. at 476.

V.
ANALYSIS
A.
PERSONAL JURISDICTION
{88} Moving Defendants have challenged personal jurisdiction by motion
and filed supporting affidavits specifically denying any contacts or activity involving
Burgess or North Carolina that would subject them to this Court’s jurisdiction.
{89} In response to this evidence, Burgess points to the unsworn allegations
of his Complaint 6 wherein he asserts that Moving Defendants employed an agent to

Replacements, Ltd. v. Midwesterling, 133 N.C. App. 139, 145, 515 S.E.2d 46, 51 (1999) (quoting
Fraser v. Littlejohn, 96 N.C. App. 377, 383, 386 S.E.2d 230, 234 (1989)).
6 Burgess asserts that his Complaint is sworn, but the copy e-filed with the Court shows otherwise.
place unsolicited advertisements on his computer. (Burgess’ 15 Nov. 2007 Resp.
Ingber Mot. Dismiss 3.)
{90} Burgess has not met his burden of responding to Moving Defendants’
affidavits with competent evidence setting forth facts supporting the Court’s
exercise of personal jurisdiction. Even considering the unsworn allegations of
Burgess’ Complaint, however, they are insufficient to require Moving Defendants to
defend this lawsuit in North Carolina.
{91} Burgess’ statutory basis for haling Moving Defendants before this
Court is section 1-75.4(4) of the North Carolina General Statutes, which allows the
Court to assert jurisdiction over a party who commits an act outside of North
Carolina that damages a plaintiff in this state. To satisfy this ground for personal
jurisdiction, however, Burgess also would need to show that:
(a) Solicitation or services activities were carried on within this
State by or on behalf of the defendant;

(b) Products, materials or thing [sic] processed, serviced or
manufactured by the defendant were used or consumed, within
this State in the ordinary course of trade; or

(c) Unsolicited bulk commercial electronic mail was sent into or
within this State by the defendant using a computer, computer
network, or the computer services of an electronic mail service
provider in contravention of the authority granted by or in
violation of the policies set by the electronic mail service
provider.

N.C. Gen. Stat. § 1-75.4(4) (2007).
{92} Burgess apparently concedes that the last two sub-sections of this
provision do not apply (Burgess’ 15 Nov. 2007 Resp. Ingber Mot. Dismiss 3), and the
facts of record do not show otherwise.
{93} As to subsection (a), the only evidence regarding solicitation is Moving
Defendants’ affidavits wherein they deny soliciting North Carolina residents.
Indeed, it makes absolutely no sense that Moving Defendants, all of whom operate
law or dental practices in states far removed from North Carolina, would have any
interest in soliciting Burgess, or any other North Carolina resident. Thus, Burgess
has failed to show a statutory ground for asserting personal jurisdiction in this case.
{94} Even if Burgess’ allegations were sufficient to satisfy North Carolina’s
long-arm statute (and they are not), subjecting Moving Defendants to jurisdiction in
this state would violate due process.
{95} Burgess’ claims in this case spring from Moving Defendants’ Internet-
based marketing activities of their law or dental practices.
{96} The North Carolina Court of Appeals has quoted with approval the
following standard for determining whether the existence and maintenance of an
Internet website supports a trial court’s exercise of personal jurisdiction:
[A] State may, consistent with due process, exercise judicial power
over a person outside of the State when that person (1) directs
electronic activity into the State, (2) with the manifested intent of
engaging in business or other interactions within the State, and (3)
that activity creates, in a person within the State, a potential
cause of action cognizable in the State’s courts. Under this
standard, a person who simply places information on the Internet
does not subject himself to jurisdiction in each State into which the
electronic signal is transmitted and received. Such passive Internet
activity does not generally include directing electronic activity into
the State with the manifested intent of engaging business or other
interactions in the State thus creating in a person within the State
a potential cause of action cognizable in courts located in the State.

Havey, 172 N.C. App. at 816–17, 616 S.E.2d at 647–48 (quoting ALS Scan, Inc. v.
Digital Serv. Consultants, Inc., 293 F.3d 707, 714 (4th Cir. 2002)).
{97} In Havey, the plaintiffs (both North Carolina residents) purchased
furniture from Stahler Furniture Company (“Stahler”) while in Vermont. Id. at
813, 616 S.E.2d at 645. Stahler, in turn, contracted with the defendant trucking
company to ship the furniture to plaintiffs’ home in Raleigh, North Carolina. Id.
{98} During delivery of the shipment in Raleigh, a piece of furniture fell
from the truck and injured one of the plaintiffs. Id. at 813, 616 S.E.2d 645–46.
Plaintiffs sued the trucking company, who sought to join Stahler as a third-party
defendant. Id. at 813, 616 S.E.2d at 646.
{99} Stahler moved to dismiss for lack of personal jurisdiction. Id. The
defendant trucking company responded that Stahler was amenable to personal
jurisdiction, in part because “through the use of its website and catalog, [Stahler]
holds itself out as a seller of furniture to residents of North Carolina [and has]
deliberately availed itself of the privilege of conducting business in North Carolina.”
Id. at 816, 616 S.E.2d at 647.
{100} The trial court denied Stahler’s motion to dismiss, but the Court of
Appeals reversed. Id. at 813, 616 S.E.2d at 645. Noting that (1) Stahler’s website
was merely informational and passive; (2) Stahler had not specifically targeted
North Carolina residents; and (3) Stahler had not otherwise purposefully availed
itself of the privilege of conducting activities in North Carolina, the Court of
Appeals concluded that Stahler’s website, standing alone, could not “provide a basis
for an exercise of personal jurisdiction by North Carolina courts.” Id. at 817, 616
S.E.2d at 648.
{101} Here, the evidence of record shows that Moving Defendants’ electronic
activity (in the form of their websites and other Internet advertising efforts) was
largely passive and certainly was not specifically targeted at North Carolina
residents.
{102} Moreover, that Burgess allegedly suffered injury in North Carolina is
alone insufficient to confer personal jurisdiction over Moving Defendants,
particularly where there is no evidence that Moving Defendants “aimed or directed”
their conduct toward North Carolina. Woods Int’l, Inc. v. McRoy, 436 F. Supp. 2d
744, 749–50 (M.D.N.C. 2006); see also ESAB Group, Inc., v. Centricut, Inc., 126
F.3d 617, 626 (4th Cir. 1997) (“Although the place that the plaintiff feels the alleged
injury is plainly relevant to the inquiry, it must ultimately be accompanied by the
defendant’s own contacts with the state if jurisdiction over the defendant is to be
upheld.”).
{103} In sum, because Burgess has not demonstrated that Moving
Defendants purposefully directed their commercial activities toward him or any
other North Carolina resident, there is no statutory or constitutional basis for
haling them into this Court to address Burgess’ claims.
{104} Accordingly, the Court GRANTS Moving Defendants’ Motions to
Dismiss for lack of personal jurisdiction.
B.
MOTION TO STAY PENDING DISCOVERY
{105} On 15 January 2008, Burgess renewed an earlier request that the
Court stay resolution of the pending motions to dismiss while he conducted
discovery on the issue of personal jurisdiction. More specifically, Burgess sought a
stay of the Court’s ruling to “cement the agent’s names and addresses that are
working for these various Defendants.” (Burgess’ 15 Jan. 2008 Reply Den. Disc. 1.)
{106} The Court DENIES the Motion to Stay.
{107} In the first place, Burgess does not specify what, if any, discovery has
been served on Moving Defendants that relates to personal jurisdiction, nor has he
attached any discovery materials to his papers in opposition to Moving Defendants’
Motions to Dismiss.
{108} To the extent Burgess is referring to a “First Set of Interrogatories”
purportedly served on all Defendants on or about 19 October 2007 (Hanson Defs.’ 21
Nov. 2007 Mot. Protective Order Ex. 1), Burgess has not asserted that Moving
Defendants failed to respond to this discovery, nor does the Court file show that
Burgess has moved to compel.
{109} To the extent Burgess is referring to a request for documents served on
all Defendants on 23 January 2008, the Court concludes that a stay of discovery for
the purpose of “cementing” the names, addresses, and related financial information
of the agents providing Internet services to Moving Defendants is unnecessary.
{110} Even assuming such agents exist (and indeed, some Moving
Defendants admit they retained third-parties to assist them with their Internet
marketing activities), the evidence (and common sense) make it clear that Moving
Defendants, all of whom operate law or dental practices in states far removed from
North Carolina, had no intention of targeting North Carolina residents as part of
their Internet activities.
{111} Accordingly, even if (as Burgess alleges) Moving Defendants’ Internet
web sites have managed to infiltrate his computer without his consent, requiring
these parties to appear in North Carolina to defend claims resulting from such an
incident would violate due process.

VI.
CONCLUSION
{112} The Court GRANTS Moving Defendants’ Motions to Dismiss for lack of
personal jurisdiction, without prejudice to Burgess’ right to pursue his claims
elsewhere.
{113} The Court does not address Moving Defendants’ other bases for
dismissal.
{114} The Court DENIES Burgess’ Motion to Strike as to Defendant Ingber.
{115} The Court DENIES Burgess’ Motion to Stay.
{116} The Court DENIES the Motions of Defendants Ingber, Sonne, Jackson,
and Hill for Rule 11 sanctions. 7

SO ORDERED, this the 26th day of February, 2008.

7 Defendants’ Rule 11 Motion asserts that Plaintiff’s claim is frivolous and fails to state a cognizable

claim for relief under North Carolina law. In Burgess v. Am. Express Co., 2007 NCBC 15 ¶¶ 13–17
(N.C. Super. Ct. May 21, 2007), http://www.ncbusinesscourt.net/opinions/2007%20NCBC%2015.pdf,
however, this Court determined that a similar suit filed by Burgess alleged a common law claim for
trespass to chattels. Accordingly, the Court declines to assess Rule 11 sanctions in this case.