Powers v. Poluha

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:26-CV-00387-KDB-DCK
LAUREN POWERS,
Plaintiff,
v. MEMORANDUM AND ORDER
SARAH POLUHA,
Defendant.
THIS MATTER is before the Court on Defendant Sarah Poluha’s Motion to Dismiss for
Lack of Jurisdiction (Doc. No. 3). The Court has carefully considered this Motion and the Parties’
briefs and exhibits, including supplemental arguments following a period of jurisdictional
discovery. Because the record establishes that Defendant repeatedly communicated with Plaintiff’s
husband in North Carolina in furtherance of their admitted extramarital affair, the Court will
DENY the Motion. The Court will also direct the Parties, who have now learned much about the
strengths and weaknesses of their respective claims and defenses, to conduct an early mediation to
determine if this matter can be resolved without more litigation.
I. LEGAL STANDARD
A motion to dismiss under Rule 12(b)(2) seeks to dismiss a complaint for lack of personal
jurisdiction. Fed. R. Civ. P. 12(b)(2). See McClure v. Charlotte-Mecklenburg Bd. of Educ., No.
320-CV-00005-KDB-DCK, 2022 WL 317641, at *2 (W.D.N.C. Feb. 2, 2022). A party invoking
federal court jurisdiction has the burden of establishing by a preponderance of the evidence that
personal jurisdiction exists over the defendant. See New Wellington Fin. Corp. v. Flagship Resort
Dev. Corp., 416 F.3d 290, 294 (4th Cir. 2005); Combs v. Bakker, 886 F.2d 673, 676 (4th Cir.
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1989). “Mere allegations of in personam jurisdiction are sufficient for a party to make [a] prima
facie showing.” Barclays Leasing, Inc. v. Nat'l Bus. Sys., Inc., 750 F. Supp. 184, 186 (W.D.N.C.
1990).
The plaintiff, however, “may not rest on mere allegations where the defendant has
countered those allegations with evidence that the requisite minimum contacts do not exist.” IMO
Indus., Inc. v. SEIM S.R.L., No. 3:05-CV-420-MU, 2006 WL 3780422, at *1 (W.D.N.C. Dec. 20,
2006). “Rather, in such a case, the plaintiff must come forward with affidavits or other evidence
to counter that of the defendant.” Id. In deciding whether the plaintiff has made a prima facie
jurisdictional showing, the Court must construe all allegations and evidence available relating to
the issue of personal jurisdiction in the light most favorable to the plaintiff. See Grayson v.
Anderson, 816 F.3d 262, 268 (4th Cir. 2016); Hemphill v. Bernard, No. 3:24-CV-00286-KDB-
SCR, 2024 WL 3761274, at *1 (W.D.N.C. Aug. 12, 2024). Yet, if the Court affords the parties a
fair opportunity to present both the relevant jurisdictional evidence and their legal arguments1—
as it has done here—it must hold the plaintiff to its burden of proving facts, by a preponderance of
the evidence, that demonstrate the court’s personal jurisdiction over the defendant. See Grayson,
816 F.3d at 268.
1 Also, if a court requires the plaintiff to establish facts supporting personal jurisdiction by a
preponderance of the evidence prior to trial, it must conduct an “evidentiary hearing.” Grayson,
816 F.3d at 268 (citing New Wellington Fin. Corp. v. Flagship Resort Dev. Corp., 416 F.3d 290,
294 n. 5 (4th Cir.2005) (“[P]laintiff[s] must eventually prove the existence of personal jurisdiction
by a preponderance of the evidence, either at trial or at a pretrial evidentiary hearing.”)). However,
an “evidentiary hearing” does not automatically involve or require live testimony. Id.; see also
Fed.R.Civ.P. 43(c) (providing that courts may “hear” motions “on affidavits or . . . wholly or partly
on oral testimony or on depositions”). Accordingly, by giving the Parties the opportunity to
conduct jurisdictional discovery and present that evidence along with their legal arguments, the
Court has held the requisite “evidentiary hearing.”
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There are two types of constitutionally permissible personal jurisdiction—general and
specific. See Bristol-Myers Squibb Co. v. Superior Ct. of Cal., S.F. Cnty., 582 U.S. 255, 262 (2017)
(referring to general jurisdiction as “all-purpose” jurisdiction and specific jurisdiction as “case-
linked” jurisdiction). General jurisdiction “requires continuous and systematic contacts with the
forum state, such that a defendant may be sued in that state for any reason, regardless of where the
relevant conduct occurred.” CFA Inst. v. Inst. of Chartered Fin. Analysts of India, 551 F.3d 285,
292 n.15 (4th Cir. 2009) (internal quotations omitted).
A court may exercise specific jurisdiction over a nonresident defendant if doing so
comports with both the forum state’s long-arm statute and the Fourteenth Amendment Due Process
Clause. See, e.g., Mitrano v. Hawes, 377 F.3d 402, 406 (4th Cir. 2004). In North Carolina, where
the long-arm statute extends personal jurisdiction to the limits of the Fourteenth Amendment’s
Due Process Clause, “the statutory inquiry merges with the constitutional inquiry.” Christian Sci.
Bd. of Dirs. v. Nolan, 259 F.3d 209, 215 (4th Cir. 2001). Under the Due Process analysis, a court
may exercise personal jurisdiction “if the defendant has ‘minimum contacts’ with the forum, such
that to require the defendant to defend its interest in that state ‘does not offend traditional notions
of fair play and substantial justice.’” Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334
F.3d 390, 397 (4th Cir. 2003) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).
At issue in this motion is specific jurisdiction. In analyzing due process requirements for
asserting specific jurisdiction, the Court must consider, in order, “(1) the extent to which the
defendant has purposefully availed itself of the privilege of conducting activities in the state; (2)
whether the plaintiffs’ claims arise out of those activities directed at the state; and (3) whether the
exercise of personal jurisdiction would be constitutionally ‘reasonable.’” Carefirst, 334 F.3d at
396 (quoting ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 711–12 (4th Cir.
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2002)); see 1CAPAPP, LLC v. Jordan Christian, No. 3:25-CV-00993-KDB-DCK, 2026 WL
1983712, at *1–2 (W.D.N.C. July 9, 2026).
II. FACTS AND PROCEDURAL HISTORY
In this lawsuit, Plaintiff contends that Defendant is liable for the harm caused by an
extramarital affair she had with Plaintiff’s now-former husband, William Powers (“Mr. Powers”).
Specifically, Plaintiff alleges that Defendant, one of his co-workers, enticed him into a romantic
relationship that “alienated his affection” and caused her emotional distress, in part through
communications into North Carolina. See Doc. No. 1-1.
Plaintiff, in her verified Complaint, alleges the foundational elements of a North Carolina
common law cause of action for “alienation of affection”; that is, prior to the affair Plaintiff and
Mr. Powers “were happily married with a genuine love and affection existing between them,” id.
at ¶¶ 11-14, 37, and Defendant maliciously alienated that affection. Id. at 38-40; see Ammel v.
Sinema, No. 1:26-CV-38, 2026 WL 2620401, at *5 (M.D.N.C. Sept. 4, 2026) (citing Fish v.
Stetina, 297 N.C. App. 733, 739, 913 S.E.2d 236, 241, review dismissed, cert. denied, 915 S.E.2d
168 (N.C. 2025) (listing the elements of a claim for alienation of affection as “(1) there was a
marriage with love and affection existing between the husband and wife; (2) that love and affection
was alienated; and (3) the malicious acts of the defendant produced the loss of that love and
affection.”).
In response to the Complaint, which she removed to this Court, Defendant filed a Motion
to Dismiss for lack of personal jurisdiction, arguing that her sexual conduct with Mr. Powers took
place only in New York (where she resides) and on two business trips outside North Carolina. See
Doc. No. 4 at 9. Further, she asserts that it was Plaintiff’s husband who pursued the relationship,
telling her that his marriage was already broken and “open.” Id. at 5-9. And she testifies that she
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told Mr. Powers repeatedly that she did not want to be in a serious, committed relationship with
him. Id. at 8-9.
In support of her contention that there was no existing “happy marriage,” Defendant cites
Plaintiff’s divorce petition, which alleges that “[d]uring the course of the marriage, Husband
committed “indignities [other than the affair with Defendant] . . . so as to render her condition
intolerable and her life burdensome”; “Husband was emotionally abusive to Wife throughout the
marriage”; and “Husband has been financially abusive through the course of the marriage.” Doc.
No. 3-1 at ¶ 33. Defendant has also offered into evidence two texts from Plaintiff to Mr. Powers,
dated September 30, 2024 (months after the affair began in February 2024). The first purportedly
describes the “rules” of their “open” relationship, including “not involving outside relationships
with the kids,” and the second acknowledges Plaintiff’s knowledge of Defendant, to wit, “say hi
to your girlfriend for me.” Doc. No. 32-1 at 14.
On July 2, 2026, the Court entered an Order allowing Plaintiff to obtain additional
jurisdictional discovery from the Defendant. Doc. No. 16. Supplemental briefing followed in
which the Parties cited to the Court numerous sensitive texts and emails related to the affair, the
state of the marriage, etc. The jurisdictional motion is now ripe for the Court’s ruling.
III. DISCUSSION
Fairness is the touchstone of the jurisdictional inquiry. Tire Eng’g & Distribution, LLC v.
Shandong Linglong Rubber Co., 682 F.3d 292, 301 (4th Cir. 2012). In the context of specific
jurisdiction, “the relevant conduct [must] have [only] such a connection with the forum state that
it is fair for the defendant to defend itself in that state.” Id., (citing CFA Inst., 551 F.3d at 292 n.
15. “To satisfy the pleading requirements for specific jurisdiction, a plaintiff must plausibly allege
that (1) the defendant purposefully availed [themselves] of the privilege of conducting activity in
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North Carolina, (2) plaintiff's claims arise out of those activities, and (3) exercising personal
jurisdiction would be fair.” Biglow v. Speaks, No. 3:24-CV-996-KDB-SCR, 2025 WL 2417731,
at *4 (W.D.N.C June 3, 2025). Furthermore, “[t]he Supreme Court has consistently held that the
plaintiff cannot be the only link between the defendant and the forum.” Id. (citing Walden v. Fiore,
571 U.S. 277, 285 (2014)). “Rather, it is the defendant's conduct that must form the necessary
connection with the forum State that is the basis for its jurisdiction over him.” Id. (citing Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 478 (1985)).
Indeed, it is the “quality and nature” of the defendant's connections with the forum that
justify personal jurisdiction, “not merely the number of contacts between the defendant and the
forum state.” Khashoggi v. NSO Grp. Techs. Ltd., 138 F.4th 152, 161 (4th Cir. 2025) (emphasis in
original); Tire Eng'g & Distribution, 682 F.3d at 301 (“We do more than formulaically count
contacts, instead taking into account the qualitative nature of each of the defendant's connections
to the forum state.”). Emails and text messages directed at the forum can give rise to specific
jurisdiction. Ammel, 2026 WL 2620401, at *7; Lillie v. Guerra, 559 F. Supp. 3d 464, 473
(M.D.N.C. 2021). In ALS Scan, the Fourth Circuit held that “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.” ALS Scan, 293 F.3d at 714. Still, “[b]rief email
exchanges and telephone conversations ... are, alone, ‘qualitatively insufficient to show purposeful
availment.’” 1CAPAPP, LLC v. Jordan Christian, No. 3:25-CV-00993-KDB-DCK, 2026 WL
1983712, at *4 (W.D.N.C. July 9, 2026) (quoting Tire Eng’g, 682 F.3d at 302).
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Here, the Court finds that Defendant’s frequent and extensive communications into North
Carolina in furtherance of the affair are sufficient to conclude that the defendant has such “minimal
contacts” with North Carolina that “maintenance of the suit does not offend traditional notions of
fair play and substantial justice.” Int’l Shoe, 326 U.S. at 316; see Ammel, 2026 WL 2620401, at *7
(finding personal jurisdiction over a defendant accused of “alienation of affection” based on only
nine messages because the “messages, considered together, show [defendant] building and
furthering a romantic relationship with [plaintiff’s husband]—invading the marriage not just while
he was away on trips with her but while he was home with his family in North Carolina”).
A. Purposeful Availment
Plaintiff argues that Defendant purposefully availed herself of the privilege of conducting
activities in North Carolina by Defendant’s communications into the state furthering the affair that
she contends ended her marriage. “The purposeful-availment test is flexible, and [the] analysis
proceeds on a case-by-case basis.” Tire Eng’g & Distrib., 682 F.3d at 302.
Applying the ALS Scan factors to this case, the Court finds that Plaintiff has made a
sufficient showing that Defendant purposefully availed herself of North Carolina.2 Defendant
directed electronic activity into North Carolina by regularly calling and sending texts and emails
to Mr. Powers during the affair. And, without reciting the sometimes lurid details, suffice it to say
that Defendant’s communications were, at least in part, plainly aimed at continuing and furthering
2 To be clear, the Court does not decide the merits of Plaintiff’s claims in this jurisdictional motion.
The state of Plaintiff’s marriage prior to the affair (as pleaded in Plaintiff’s divorce complaint), the
“openness” of the marriage and Defendant’s role, if any, in ending the marriage are more properly
addressed at summary judgment. See Hartley v. CSX Transp., Inc., 187 F.3d 422, 425 (4th
Cir.1999) (noting the court should not “delve too far into the merits in deciding a jurisdictional
question”); Watkins v. Ashley, No. 5:13-CV-221-F, 2014 WL 496493, at *2 (E.D.N.C. Feb. 6,
2014) (citing Hartley) (same).
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the affair while Mr. Powers was in North Carolina with his family, who are sometimes referenced
in the messages. Thus, the first and second ALS Scan factors are met because Plaintiff has
sufficiently established that electronic activity was directed into North Carolina to directly further
an affair with a married North Carolina resident.
The last ALS Scan factor is also met because, as discussed below, the electronic activity
created Plaintiff’s potential cause of action for alienation of affection, which is cognizable in North
Carolina’s courts. Therefore, the Court finds Defendant purposefully availed herself of North
Carolina through her electronic activity.
B. Claims Arising out of Activities Directed at the State
Second, the Court finds that Plaintiff’s claims arose out of the activities Defendant directed
at North Carolina. “The second prong of the test for specific jurisdiction — that the plaintiff’s
claims arise out of the activities directed at the forum — requires that the defendant’s contacts
with the forum state form the basis of the suit.” Consulting Engineers Corp. v. Geometric Ltd.,
561 F.3d 273, 278–79 (4th Cir. 2009) (citing Burger King, 471 U.S. at 472). For specific
jurisdiction to apply, there must be “an ‘affiliation between the forum and the underlying
controversy,’ principally, activity or an occurrence that takes place in the forum State and is
therefore subject to the State’s regulation.” Goodyear Dunlop Tires Operations, S.A. v. Brown,
564 U.S. 915, 919 (2011).
Defendant argues that the messages she sent to Mr. Powers do not supply a basis for
Plaintiff’s claims because her sexual conduct with Mr. Powers occurred outside North Carolina,
and it was Mr. Powers who was pursuing a committed relationship that she didn’t want. However,
as explained above (and emphasized by Defendant in her merits arguments), sexual conduct by
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itself is insufficient to create a cause of action for alienation of affection.3 Rather, the focus is on
the nature and effect of the alleged alienating relationship. See Ammel, 2026 WL 2620401, at *7.
Therefore, even though a significant portion of Defendant and Mr. Power’s affair occurred outside
of North Carolina, there is no dispute that she knew he was married and lived in North Carolina.
Thus, the Court finds it is fair to conclude that the claims arise out of activities directed at the state.
Id.; Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984) (“When a
controversy is related to or ‘arises out of’ a defendant’s contacts with the forum, the [Supreme]
Court has said that a ‘relationship among the defendant, the forum, and the litigation’ is the
essential foundation of in personam jurisdiction.”) (quoting Shaffer v. Heitner, 433 U.S. 186, 204
(1977)).
C. Constitutional Reasonableness
Finally, the Court holds that the exercise of personal jurisdiction over Defendant is
constitutionally reasonable. While Defendant might naturally prefer to defend against Plaintiff’s
claims in her home forum of New York, there has been no showing that it would be unduly
burdensome for Defendant to litigate in this Court (which the contest of this motion reflects). Also,
North Carolina has an interest in this action as it involves a North Carolina marriage. In Malecek
v. Williams, the North Carolina Court of Appeals explained that North Carolina has an interest in
“seek[ing] to deter and remedy the harmful effects that result from acts that cause people to break
their marriage vows, inflict personal injury on others, and damage the institution of marriage.” 255
N.C. App. 300, 306, 804 S.E.2d 592 (2017). Moreover, there is no apparent reason that this action
3 While not required for a claim of alienation of affection, sexual conduct may, as a matter of law,
supply the element of “malicious” interference. Fish, 297 N.C. App. at 739, 913 S.E.2d at
241.“Malice is conclusively presumed by a showing that the defendant engaged in sexual
intercourse with the plaintiff’s spouse.” Rodriguez v. Lemus, 257 N.C. App. 493, 495–96, 810
S.E.2d 1, 3 (2018)
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cannot be effectively and efficiently tried in this Court, as Plaintiff has requested. Therefore, the
exercise of jurisdiction in this Court will not “make litigation ‘so gravely difficult and
inconvenient’ that [Defendant] unfairly is at a ‘severe disadvantage’ in comparison to [her]
opponent.” See Burger King, 471 U.S. at 478. Defendant’s Motion to Dismiss for lack of personal
jurisdiction will, accordingly, be denied.
D. Mediation
By their very nature, Plaintiff’s claims are personal and sensitive. The inevitable course of
the litigation will require public disclosure of the most intimate details of Plaintiff’s marriage and
the relationship between Defendant and Mr. Powers. And the ultimate outcome is in doubt for all
involved. Still, a compromise resolution of the action may understandably be difficult on both
sides. Nevertheless, the Court will order the Parties to engage in an “early” mediation before
additional discovery and dispositive motions. After jurisdictional discovery, the Parties have much
of the relevant information. And counsel and the mediator can assist the Parties in carefully
evaluating the legal strengths and weaknesses of their cases. The Court stands ready to adjudicate
the dispute, but the Parties should first see if they can reach a private settlement that may well be
preferable to continuing this action to an uncertain public conclusion.
IV. ORDER
NOW THEREFORE IT IS ORDERED THAT:
1. Defendant’s Motion to Dismiss (Doc. No. 3) is DENIED; and
2. The Parties are directed to conduct a mediation of their dispute within 60 days of
the date of this Order, unless that date is further extended for good cause.
SO ORDERED ADJUDGED AND DECREED. Signed: October 13, 2026
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