Opinion
No. COA11–1565.
2012-09-18
Jennifer CROCKETT, Plaintiff–Appellee, v. Shannon PRANTNER, Defendant–Appellant.
Wake Family Law Group, by Nancy L. Grace and Katie H. King, for Plaintiff–Appellee. Jonathan McGirt for Defendant–Appellant.
Appeal by Defendant from order entered 29 August 2011 by Judge Henry W. Hight in Superior Court, Wake County. Heard in the Court of Appeals 14 August 2012. Wake Family Law Group, by Nancy L. Grace and Katie H. King, for Plaintiff–Appellee. Jonathan McGirt for Defendant–Appellant.
McGEE, Judge.
Jennifer Crockett (Plaintiff) filed a complaint on 3 February 2011 against Shannon Brockmann, now Shannon Prantner (Defendant), setting forth causes of action for alienation of affections and criminal conversation. Defendant, a resident of Iowa, filed motions to dismiss on 11 May 2011, based on a lack of personal jurisdiction and subject matter jurisdiction, and for failure to state a claim upon which relief could be granted with respect to Plaintiff's criminal conversation claim. Plaintiff filed an amended complaint dated 10 August 2011, changing, inter alia, Defendant's name to read “Shannon Prantner” and expanding the allegations of the complaint. In an order entered 29 August 2011, the trial court denied Defendant's motions to dismiss. Defendant appeals.
I. Factual Background
Plaintiff's amended complaint contains the following allegations: Plaintiff and Brian Crockett (Mr. Crockett) were married on 18 June 1988. Plaintiff and Mr. Crockett lived together as husband and wife until 8 May 2010, when they separated. Plaintiff alleged that she and Mr. Crockett were happily married and that she “had the benefit of and enjoyed her husband's society, genuine love and affection, and assistance.”
Mr. Crockett was an employee of John Deere. Defendant was also an employee of John Deere, though she resided in Illinois. Plaintiff alleged that Mr. Crockett and Defendant spent time with each other during a business trip that Mr. Crockett took to Australia in March 2010. Mr. Crockett ceased sleeping in the same bedroom with Plaintiff on 23 April 2010. After Mr. Crockett's separation from Plaintiff, he began residing with Defendant. Mr. Crockett and Defendant conceived a child who was born in March 2011.
Plaintiff's complaint alleged that Defendant “caused a deterioration of Plaintiff's marriage in Wake County, North Carolina [and][t]hrough her behavior, ... caused Plaintiff's husband to withdraw his love and attention from Plaintiff.” Specifically, Plaintiff alleged that Defendant spoke with Mr. Crockett over the telephone and by email to “arrange[ ] to meet ... with [Mr. Crockett] outside of the State of North Carolina to further their relationship and to engage in sexual intercourse under the pretext of business-related travel.”
II. Issues on Appeal
Defendant raises on appeal the issues of whether: (1) “the trial court erred as a matter of fact and a matter of law in denying Defendant's motion to dismiss for lack of personal jurisdiction[;]” (2) “the trial court erred as a matter of law in denying Defendant's motion to dismiss Plaintiff's claim for criminal conversation on the grounds of lack of subject matter jurisdiction [;]” and (3) “the trial court erred as a matter of law in denying Defendant's motion to dismiss Plaintiff's claim for criminal conversation on the grounds of lack of personal jurisdiction.”
III. Interlocutory Order
“Generally, there is no right of immediate appeal from interlocutory orders and judgments.” Goldston v. American Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). However, N.C. Gen.Stat. § 1–277(b) provides: “Any interested party shall have the right of immediate appeal from an adverse ruling as to the jurisdiction of the court over the person or property of the defendant or such party may preserve his exception for determination upon any subsequent appeal in the cause.” N.C. Gen.Stat. § 1–277(b) (2011). In the present case, Defendant is appealing the denial of her motions to dismiss pursuant to both Rule 12(b)(1) and 12(b)(2).
“[T]he right of immediate appeal of an adverse ruling as to jurisdiction over the person, under [N.C. Gen.Stat. § 1–277(b) ], is limited to rulings on ‘minimum contacts' questions, the subject matter of Rule 12(b)(2).” Love v. Moore, 305 N.C. 575, 581, 291 S.E.2d 141, 146 (1982). Defendant therefore has a right to immediate review of the denial of her rule 12(b)(2) motion to dismiss.
“On the other hand, the denial of a motion to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction is not immediately appealable.” Data Gen. Corp. v. Cty. of Durham, 143 N.C.App. 97, 100, 545 S.E.2d 243, 246 (2001). Defendant argues that her appeal is properly before us for review of the trial court's personal jurisdiction determination and asserts that subject matter jurisdiction may be raised at any time, including on appeal. Defendant argues that her subject matter jurisdiction argument is also properly before us because “subject matter jurisdiction is a precondition to the exercise of personal jurisdiction[.]”
However, we note that our Courts has repeatedly held that the interlocutory review of the denial of a motion to dismiss is limited to personal jurisdiction grounds, and review of a subject matter jurisdiction question also decided in a trial court's ruling is untimely and improper. See, id. (“We therefore consider Durham County's first assignment of error [concerning personal jurisdiction], but decline to consider the second assignment of error [concerning subject matter jurisdiction], as it is not properly before us.”); see also Meherrin Indian Tribe v. Lewis, 197 N.C.App. 380, 384–85, 677 S.E.2d 203, 207 (2009) (“N.C.Gen.Stat. § 1–277(b) allows only for an immediate appeal of the denial of a motion to dismiss based on personal jurisdiction, not subject matter jurisdiction.... Therefore, plaintiffs' motion to dismiss defendants' appeal as interlocutory is granted with respect to defendants' appeal from the denial of their Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction.”). In the present case we conclude that Defendant's novel arguments concerning subject matter jurisdiction are unpersuasive attempts to secure review of an otherwise interlocutory determination. We therefore do not address Defendant's arguments concerning subject matter jurisdiction.
IV. Personal Jurisdiction
A. Standard of Review
Our Court discussed the standard of review for an order denying a motion to dismiss under Rule 12(b)(2) as follows:
The standard of review to be applied by a trial court in deciding a motion under Rule 12(b)(2) depends upon the procedural context confronting the court. Typically, the parties will present personal jurisdiction issues in one of three procedural postures:
(1) the defendant makes a motion to dismiss without submitting any opposing evidence;
(2) the defendant supports its motion to dismiss with affidavits, but the plaintiff does not file any opposing evidence; or (3) both the defendant and the plaintiff submit affidavits addressing the personal jurisdiction issues.
Banc of Am. Secs. LLC v. Evergreen Int'l Aviation, Inc., 169 N .C.App. 690, 693, 611 S.E.2d 179, 182 (2005). In the first situation, “[t]he trial judge must decide whether the complaint contains allegations that, if taken as true, set forth a sufficient basis for the court's exercise of personal jurisdiction.” Id. “On the other hand, if the defendant supplements his motion to dismiss with an affidavit or other supporting evidence, the ‘allegations [in the complaint] can no longer be taken as true or controlling and plaintiff[ ] cannot rest on the allegations of the complaint.’ “ Id. (citation omitted). “In that case, a plaintiff cannot rest on the complaint's allegations, even if they meet the initial burden of proving jurisdiction, ‘but must respond “by affidavit or otherwise ... set[ting] forth specific facts showing that the court has jurisdiction.” ‘ “ Bauer v. Douglas Aquatics, Inc., 207 N.C.App. 65, 69, 698 S.E.2d 757, 761 (2010) (citation omitted). If a plaintiff fails to file an affidavit responding to a defendant's affidavit, the trial court must then consider: “(1) any allegations in the complaint that are not controverted by the defendant's affidavit and (2) all facts in the affidavit (which are uncontroverted because of the plaintiff's failure to offer evidence).” Banc of Am. Secs. LLC, 169 N.C.App. at 693–94, 611 S.E.2d at 183.
However, “[a] verified complaint may be treated as an affidavit if it (1) is made on personal knowledge, (2) sets forth such facts as would be admissible in evidence, and (3) shows affirmatively that the affiant is competent to testify to the matters stated therein.” Bauer, 207 N.C.App. at 69, 698 S.E.2d at 761 (citation omitted). “In either case, the plaintiff bears the burden of proving, by a preponderance of the evidence, grounds for exercising personal jurisdiction over a defendant.” Id. at 68, 698 S.E.2d at 761. “As such, upon a defendant's motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of making out a prima facie case that jurisdiction exists.” Id.
When “the trial court chooses to decide the motion based on affidavits, ‘[t]he trial judge must determine the weight and sufficiency of the evidence [presented in the affidavits] much as a juror.’ “ Banc of Am. Secs. LLC, 169 N.C.App. at 694, 611 S.E .2d at 183 (citation omitted). Upon review of a determination regarding personal jurisdiction, this Court “considers only ‘whether the findings of fact by the trial court are supported by competent evidence in the record; if so, this Court must affirm the order of the trial court.’ “ Id. (citation omitted). However, “the trial court is not required to make specific findings of fact unless requested by a party.” Id. “When the record contains no findings of fact, ‘ “[i]t is presumed ... that the court on proper evidence found facts to support its judgment.” ‘ “ Id. (citation omitted).
“It is this Court's task to review the record to determine whether it contains any evidence that would support the trial judge's conclusion that the North Carolina courts may exercise jurisdiction over defendants without violating defendants' due process rights.” Id. at 695, 611 S.E.2d at 183. “We are not free to revisit questions of credibility or weight that have already been decided by the trial court.” Id. To determine whether it is proper to exercise personal jurisdiction, a trial court must complete a two-step analysis. Cooper v. Shealy, 140 N.C.App. 729, 732, 537 S.E.2d 854, 856 (2000). “First, the court must determine if the North Carolina long-arm statute's (N.C.Gen.Stat. § 1–75.4) requirements are met.” Id. “If so, the court must then determine whether such an exercise of jurisdiction comports with due process.” Id.
B. Long–Arm Statute
N.C. Gen.Stat. § 1–75.4, North Carolina's “long-arm” statute, provides that courts of this State have personal jurisdiction:
In any action for wrongful death occurring within this State or in any action claiming injury to person or property within this State arising out of an act or omission outside this State by the defendant, provided in addition that at or about the time of the injury either:
a. Solicitation or services activities were carried on within this State by or on behalf of the defendant;
b. Products, materials or thing 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. Transmission of commercial electronic mail from an organization to its members shall not be deemed to be unsolicited bulk commercial electronic mail.
N.C. Gen.Stat. § 1–75.4(4) (2011).
In Cooper, this Court addressed the question of personal jurisdiction with respect to a South Carolina defendant facing claims similar to those in the present case. Cooper, 140 N.C.App. at 731, 537 S.E.2d at 856. The trial court in Cooper made findings of fact, including a finding that the “defendant had wrongfully contacted ‘ [p]laintiff and [p]laintiff's husband by telephone, which contacts include[d] both telephone conversations and telephone transmitted e-mail to [p]laintiff's home.’ “ Id. The trial court ultimately concluded that it could exercise personal jurisdiction over the defendant. Id. On appeal, this Court conducted the following analysis:
The trial judge found that the alleged telephone contacts (including telephone calls and telephone transmitted e-mail) were “solicitations” within the meaning of N.C. Gen.Stat. § 1–75.4(4) and we agree. [The][p]laintiff alleged that [the] defendant telephoned her husband in North Carolina in order to solicit his affections and entice him to leave his family. In addition, plaintiff claimed that she suffered injury, the destruction of her husband's love and affection, as the direct result of defendant's wrongful conduct. We conclude, therefore, that the North Carolina long-arm statute authorizes personal jurisdiction since the plaintiff's injury allegedly occurred within North Carolina and was allegedly caused by defendant's solicitation of plaintiff's husband's love and affection by telephoning plaintiff's home in North Carolina.
Id. at 734, 537 S.E.2d at 857.
Likewise, in Brown v. Ellis, 363 N.C. 360, 678 S.E.2d 222 (2009), our Supreme Court addressed the question of personal jurisdiction over an out-of-state defendant who was alleged to have engaged in telephone and email contact within North Carolina. In Brown, the “defendant argue[d] the complaint failed to allege that plaintiff's wife was in North Carolina at the time she received defendant's telephone calls and e-mail.” Brown, 363 N.C. at 363, 678 S.E.2d at 223–24. Our Supreme Court noted that this Court had agreed with the defendant, “concluding there was no evidence that defendant solicited plaintiff's wife while she was in North Carolina.” Id. at 363, 678 S.E.2d at 224 (citation and quotation marks omitted). The Supreme Court concluded that this Court's interpretation of the complaint was “overly strict” and stated the following reasoning:
[The][p]laintiff alleged that he resided in Guilford County with his wife and daughter and that defendant “initiat[ed] frequent and inappropriate, and unnecessary telephone and e-mail conversations with [plaintiff's wife] on an almost daily basis.” According to the complaint, defendant and plaintiff's wife discussed their “sexual and romantic relationship” in the presence of plaintiff and his minor child. In his supporting affidavit, plaintiff specifically averred that defendant's alienation of his wife's affections “occurred within the jurisdiction of North Carolina.” Although the complaint does not specifically state that plaintiff's wife was physically located in North Carolina during the telephonic and e-mail communications, that fact is nevertheless apparent from the complaint.
Id. at 363–64, 678 S.E.2d at 224. Our Supreme Court further noted that “[i]n his own affidavit, defendant never denied that he telephoned or e-mailed plaintiff's spouse in North Carolina; rather, he merely characterized the conversations as work related.” Id. at 364, 678 S.E.2d at 224. Our Supreme Court concluded that the “plaintiff's complaint allege[d] sufficient facts to authorize the exercise of personal jurisdiction over defendant pursuant to N.C.G.S. § 1–75.4(4)(a).” Id.
In the present case, Plaintiff's amended complaint contains the following pertinent allegation:
Between the date Plaintiff's husband returned from Australia and the date Plaintiff and her husband separated, Defendant willfully alienated the affections of Plaintiff's husband by, among other actions, initiating frequent telephone and email conversations with Plaintiff's husband while he was physically present in Wake County, North Carolina. Some of these telephone calls were personal in nature. Through these telephone calls and emails, Defendant arranged to meet and met with Plaintiff's spouse outside of the State of North Carolina to further their relationship and to engage in sexual intercourse under the pretext of business-related travel. Specifically, on April 21, 2010, Defendant sent Plaintiff's husband an email that advertised an upcoming seminar in Rosemont, Illinois on April 26–28, 2010. Plaintiff's husband and Defendant spent at least one night together at the same hotel room during those dates.
Defendant's affidavit in support of her motion to dismiss contains the following pertinent averments:
5. I have never engaged in sexual relations with Plaintiff's husband, Brian Crockett in the State of North Carolina. Although Paragraph 17 of Plaintiff's complaint alleges that Mr. Crockett and I spent the night at Plaintiff's residence on May 2, 2010, that statement is inaccurate. I spent the night of May 2, 2010 in my former home in Illinois. Plaintiff is well aware of this fact as she had hired a private investigator to follow me and/or her husband. The investigator, Mr. Hollenbeck was present outside my home on the evening of May 2, 2010. I personally spoke to him on that occasion, although he originally denied his purpose for being outside my home. A copy of a picture taken on that date is annexed hereto as Exhibit A.
....
10. I traveled to Australia in March of 2010 in connection with my employment and returned back to my then home in Illinois. According to Plaintiff's complaint, after my return from Australia up until May 8, 2010, I contacted Plaintiff's husband when he was in Wake County, North Carolina via telephone and email.
11. From March of 2010 through May 8, 2010, I had two email[ ] accounts, one personal and one business. My personal account was used for on-line financial transactions and has been closed due to hacking/virus issues. I never sent any emails to Mr. Crockett during that time frame from my personal account.
12. My work email is the property of my employer. I likely sent Mr. Crockett emails during the period March of 2010 through May 8, 2010 related to business issues. I have no knowledge if Mr. Crockett was located in North Carolina when he read those emails.
13. I most likely spoke to Mr. Crockett via telephone on several occasions between March of 2010 and May 8, 2010 on various business issues. I am aware that Mr. Crockett travels for business and I do not have any specific knowledge that he was in North Carolina when he received the telephone calls. I have never called the home where Mr. Crockett and Plaintiff resided prior to their separation. I never called Mr. Crockett's personal cell phone and only used his business numbers when I needed to contact him.
In reviewing the allegations of Plaintiff's complaint and comparing them to Defendant's affidavit, we find that portions of Plaintiff's allegation concerning Defendant's telephone conversations with Mr. Crockett remain uncontroverted. Specifically, Defendant does not challenge Plaintiff's allegation that Defendant spoke with Mr. Crockett while Mr. Crockett was within North Carolina and that, during these alleged conversations, Defendant “arranged to meet and met with [Mr. Crockett] outside of the State of North Carolina to further their relationship and to engage in sexual intercourse under the pretext of business-related travel[.]”
We note that Defendant contends this verified allegation should not be treated as an affidavit because it could not possibly be based on Plaintiff's personal knowledge. However, as discussed above, the requirement that a plaintiff support an allegation by affidavit at the 12(b)(2) stage is only triggered when that allegation is controverted by an affidavit offered by the defendant. Because we have concluded Plaintiff's allegation was uncontroverted, we find Defendant's argument irrelevant.
Further, Plaintiff's complaint alleged that Defendant initiated the phone calls to Mr. Crockett while Mr. Crockett was within North Carolina. Defendant's affidavit admits calling Mr. Crockett but denies ever calling his home telephone. Defendant's affidavit states that she does not know whether Mr. Crockett was within North Carolina when she called him. Defendant in the present case, as in Brown, “never denied that [s]he telephoned or e-mailed [P]laintiff's spouse in North Carolina; rather, [s]he merely characterized the conversations as work related.” Brown, 363 N .C. at 364, 678 S.E.2d at 224. Because Plaintiff's complaint alleged that Defendant initiated communication with Mr. Crockett while Mr. Crockett was within North Carolina in order to further their illicit relationship and plan encounters outside of North Carolina, we conclude Plaintiff's “complaint allege[d] sufficient facts to authorize the exercise of personal jurisdiction over [D]efendant pursuant to N.C.G.S. § 1–75.4(4)(a).” Brown at 364, 678 S.E.2d at 224;see also Cooper, 140 N.C.App. at 733, 537 S.E.2d at 857 (“For purposes of personal jurisdiction analysis, plaintiff's claims of injury due to defendant's telephone and e-mail solicitations are sufficient.”).
C. Due Process
Having concluded that the long-arm statute's requirements are met, we now “determine whether such an exercise of jurisdiction comports with due process.” Cooper, 140 N.C.App. at 732, 537 S.E.2d at 586. “Due process requires that the defendant have minimum contacts with the state in order to satisfy traditional notions of fair play and substantial justice.” Id. at 734, 537 S.E.2d at 857 (citation and quotation marks omitted).
The factors to consider when determining whether defendant's activities are sufficient to establish minimum contacts are: “(1) the quantity of the contacts; (2) the quality and nature of the contacts; (3) the source and connection of the cause of action to the contacts; (4) the interests of the forum state, and (5) the convenience to the parties.”
Id. at 734, 537 S.E.2d at 857–58 (citation omitted).
With respect to the first and second factors, Plaintiff's complaint alleged “frequent telephone and email conversations[.]” In Cooper, this Court noted that, though it did “not know how many contacts defendant had with plaintiff and her husband in North Carolina[,] ... federal courts have found personal jurisdiction when the defendant had only minimal contacts with the forum state.” Id. at 734, 537 S.E.2d at 858. This Court conceded that “[t]he quantity of defendant's contacts with North Carolina may not have been extensive.” Id. at 735, 537 S.E.2d at 858. However, this Court noted that it had already determined “that the contacts were sufficient for purposes of N.C. Gen.Stat. § 1–75.4, especially considering that the alleged injury under the claim (ultimately the destruction of plaintiff's marriage) was suffered by plaintiff allegedly within this state.” Id.
We now address the third factor: the source and connection of the cause of action to the contacts. The Court in Cooper stated that the plaintiff “claim [ed] ... there [wa]s a direct relationship between the contacts and plaintiff's injuries.” Id. In the present case, as in Cooper, the alleged contacts with North Carolina are the telephone calls and emails sent to Mr. Crockett, in which Defendant is alleged to have engaged in the very conduct giving rise to Plaintiff's injuries. Therefore, there is a direct connection between the cause of action and the contacts.
With respect to the fourth factor, this Court in Cooper observed that “ ‘North Carolina has a strong interest in protecting its citizens from local injury caused by the tortious conduct of foreign citizens[.]’ “ Id. (citation omitted). The Cooper Court then stated that:
It is important to note that plaintiff cannot bring the claims for alienation of affections and criminal conversation in South Carolina (defendant's resident state) since that state has abolished those causes of actions.... Therefore, North Carolina's interest in providing a forum for plaintiff's cause of action is especially great in light of the circumstances.
Id. (citation omitted).
It is important to note in the present case, as in Cooper, that Plaintiff cannot bring her claims in Defendant's resident state. Defendant's affidavit states that she is a resident of Iowa. The Supreme Court of Iowa abrogated the tort of alienation of affections in 1981. See Fundermann v. Mickelson, 304 N.W.2d 790, 794 (1981) (stating: “we think the action should be abolished because spousal love is not property which is subject to theft. We do not abolish the action because defendants in such suits, need or deserve our protection. We certainly do not do so because of any changing views on promiscuous sexual conduct. It is merely and simply because the plaintiffs in such suits do not deserve to recover for the loss of or injury to ‘property’ which they do not, and cannot, own.”). Likewise, the Supreme Court of Iowa abrogated the tort of criminal conversation in 1978. See Bearbower v. Merry, 266 N.W.2d 128 (1978).
In addressing the causes of action for alienation of affections and criminal conversation, we are cognizant of their controversial nature. One scholar has noted that, as of 2011, “[o]nly seven states continue to recognize any form of [cause of action for] alienation of affections.” Sandi S. Varnado, Inappropriate Parental Influence: A New App for Tort Law and Upgraded Relief for Alienated Parents, 61 DePaul L.Rev. 113, 144 (2011). “These seven states are Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South Dakota, and Utah. See, e.g., Hunt v. Chang, 594 P.2d 118, 123 (Haw.1979); Schroeder v. Winyard, 873 N.E.2d 35, 40 (Ill.App.Ct.2007); Fitch v. Valentine, 959 So.2d 1012, 1025 (Miss.2007); Thompson v. Chapman, 600 P.2d 302, 304 (N.M.Ct.App.1979); Heller v. Somdahl, 696 S.E.2d 857, 860–61 (N.C.Ct.App.2010); Hershey v. Hershey, 467 N.W.2d 484, 488 (S.D.1991); Heiner v. Simpson, 23 P.3d 1041, 1043 (Utah 2001).” Id., n.197.
The other potential candidate for a forum state would be Illinois, where Defendant resided during the period in which she allegedly began her relationship with Mr. Crockett. It appears that Illinois, like North Carolina, continues to recognize a cause of action for alienation of affections, but substantially limited the damages recoverable under such a claim by legislative action in 1948:
It is hereby declared, as a matter of legislative determination, that the remedy heretofore provided by law for the enforcement of the action for alienation of affections has been subjected to grave abuses and has been used as an instrument for blackmail by unscrupulous persons for their unjust enrichment, due to the indefiniteness of the damages recoverable in such actions and the consequent fear of persons threatened with such actions that exorbitant damages might be assessed against them. It is also hereby declared that the award of monetary damages in such actions is ineffective as a recompense for genuine mental or emotional distress. Accordingly, it is hereby declared as the public policy of the state that the best interests of the people of the state will be served by limiting the damages recoverable in such actions and by leaving any punishment of wrongdoers guilty of alienation of affections to proceedings under the criminal laws of the state, rather than to the imposition of punitive, exemplary, vindictive, or aggravated damages in actions for alienation of affections. Consequently, in the public interest, the necessity for the enactment of this chapter is hereby declared as a matter of legislative determination.
740 Ill. Comp. Stat. § 5/1 (2012). Illinois similarly limited recovery for claims of criminal conversation in the same year. See740 Ill. Comp. Stat. 50/1 (2012). We find that North Carolina has a substantial interest in providing the forum for this action in that one of two other potential forum states does not recognize the causes of action in this case, and the other significantly limits recovery for those claims.
Finally, we address the fifth factor: the convenience of the parties. In Cooper, the Court observed that “several possible witnesses and evidence relevant to plaintiff's marriage and the destruction thereof would more than likely be located in North Carolina.” Cooper, 140 N.C.App. at 736, 537 S.E.2d at 858. In the present case, Plaintiff alleged that:
Material evidence and crucial witnesses to this action are located in North Carolina, including witnesses that Plaintiff and her husband had a marriage with genuine love and affection, that the affection was alienated and destroyed, and the damages that Plaintiff suffered as a result of the destruction of her marriage.
Unlike in Cooper, Defendant in the present case is a resident of Iowa. In Cooper, the defendant was a resident of South Carolina and this Court found that there was only a “minimal traveling burden on defendant to defend the claims in North Carolina .” Id. There is significantly greater travel required for Defendant to defend this matter in North Carolina. However, as Defendant states in her brief, the “convenience to the parties” is a “secondary factor” in the personal jurisdiction analysis. B.F. Goodrich Co. v. Tire King and Smith v. Hill, 80 N.C.App. 129, 132, 341 S.E.2d 65, 67 (1986).
We note that the “factors are not to be applied mechanically; rather, the court must weigh the factors and determine what is fair and reasonable to both parties.” Fox v. Gibson, 176 N.C.App. 554, 560, 626 S.E.2d 841, 845 (2006). “No single factor controls; rather, all factors ‘must be weighed in light of fundamental fairness and the circumstances of the case.’ “ Id. (citation omitted). In reviewing all the above factors, the only notable distinction between the present case and Cooper is that in the present case Defendant is a resident of a state much farther away from North Carolina. The Court in Cooper concluded its analysis by stating: “For the reasons stated above, we do not believe that allowing plaintiff to bring these claims against defendant in North Carolina in any way ‘offend[s] “traditional notions of fair play and substantial justice.” ‘ “ Cooper, 140 N.C.App. at 736, 537 S.E.2d at 858 (citation omitted). Considering all of the factors in the present case, we are likewise persuaded that permitting Plaintiff in this case to file her claims against Defendant in North Carolina does not “ ‘offend[ ] “traditional notions of fair play and substantial justice.” ‘ “ Id. (citation omitted). Therefore, the trial court's interlocutory order denying Defendant's motions to dismiss is affirmed.
Affirmed. Judges STEELMAN and ERVIN, concur.
Report per Rule 30(e).