Civil Practice – Personal Jurisdiction – Insufficient Contacts – Labor & Employment – H-2B Workers – Traveling Carnival

Vitela v. Richardson (Lawyers Weekly No. 11-07-0574, 14 pp.) (Rick Elmore, J.) Appealed from Wake County Superior Court. (Michael R. Morgan, J.) N.C. App. Click here for the full text opinion.

Holding: Although defendant’s traveling carnival sometimes operates in North Carolina, plaintiffs failed to show a sufficient connection between North Carolina and their work for defendant; moreover, defendant lacks the contacts with North Carolina that would be necessary for a finding of general jurisdiction over him.

We affirm the trial court’s order granting defendant’s motion to dismiss for lack of personal jurisdiction.

General Jurisdiction

Plaintiffs produced evidence that defendant operated his mobile carnival in this state in 2004, 2005, 2007, 2008 and 2009. In each instance, defendant appears to have operated in North Carolina for no more than a few weeks.

Defendant also submitted to the N.C. Department of Labor’s inspections and regulations for the purposes of operating his carnival in state. Finally, defendant purchased worker’s compensation insurance in North Carolina in 2007 and 2010.

The trial court concluded that these contacts were insufficient to establish general jurisdiction, and we agree.

Defendant carries on no substantial activity in North Carolina when his carnival is not operating here, meaning that, for the vast majority of a given year, defendant’s contacts with North Carolina are virtually non-existent.

Defendant’s visits to North Carolina are brief and constitute a small part of his carnival operation during carnival season. We agree with the trial court that N.C. courts lack general jurisdiction over defendant.

Specific Jurisdiction

Plaintiffs alleged that they began work for defendant in North Carolina. Defendant, in an affidavit supporting his motion to dismiss, asserted that plaintiffs abandoned the carnival before it arrived in North Carolina. In the face of those assertions, the trial court found plaintiffs’ statements as to their work in North Carolina “too speculative” to support the exercise of jurisdiction.

In response to defendant’s motion and affidavit, plaintiffs filed a brief containing evidence concerning defendant’s contacts with North Carolina, including evidence that defendant operated the carnival in North Carolina in 2007. None of this evidence, however, contradicts defendant’s assertion that plaintiffs ceased working for him prior to the carnival’s arrival in North Carolina.

We presume that the trial court’s finding that plaintiffs’ contentions were “too speculative” amounts to a finding that plaintiffs did not work in North Carolina. This presumed finding is supported by the record.

If, as the trial court found, plaintiffs never worked in North Carolina, defendant’s alleged misbehaviors do not arise from or relate to his contacts with this state. Therefore, specific jurisdiction is lacking.

Plaintiffs rely on defendant’s application and advertisements for H2-B workers and, specifically, on the references to North Carolina contained therein as conclusive proof that the parties formed a binding employment contract with a substantial connection to this state. We cannot agree with plaintiffs’ view.

Plaintiffs are not N.C. residents, and only a small portion of the work they were employed to perform was scheduled to take place in North Carolina. We hold that specific jurisdiction has not been shown to exist in this case.

Affirmed.