Maryland Digital Copier v. Litigation Logistics, Inc. ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARYLAND DIGITAL COPIER d/b/a
SHORT TERM COPIER,
Plaintiff,
v. Civil Action No. 18-2027 (TJK)
LITIGATION LOGISTICS, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
Short Term Copier, as its name suggests, leases copiers, printers, and other office
equipment for short-term projects. It also provides support services for that equipment over the
course of the project. In later 2017 and early 2018, Short Term Copier provided equipment and
associated services to Litigation Logistics, a litigation support firm, for two law-firm clients with
trials taking place in the District of Columbia and California. After the projects were completed
and Short Term Copier sent invoices for the equipment and services, Litigation Logistics
declined to pay. Seeking what it alleges Litigation Logistics still owes it, Short Term Copier
sued, bringing claims for breach of contract and, alternatively, unjust enrichment.
Litigation Logistics moved to dismiss, arguing that this Court lacks subject-matter
jurisdiction to hear these claims in light of the District of Columbia’s “door-closing” statute, that
the Court cannot exercise personal jurisdiction over it, and that venue is improper. Finding each
argument wanting, the Court will deny Defendant’s motion, except insofar as it requests
dismissal of claims related to the California contract between the parties for lack of personal
jurisdiction.
Background
Maryland Digital Copier, Inc., d/b/a Short Term Copier (“Plaintiff”) is a rental-services
firm that provides high-speed copiers, printers, high-capacity shredders, laptops, and computers
for temporary offices, projects, and events. See ECF No. 1 (“Compl.”) ¶ 1. Plaintiff is a
Maryland corporation, with its principal place of business in Maryland. Id. But it provides its
services in nineteen states and in the District of Columbia. Id.
Litigation Logistics, Inc., (“Defendant”) is a Tennessee corporation with its principal
place of business in Tennessee. ECF No. 7-2 (“Hogan Decl.”) ¶ 2. Its “primary business
function . . . is to provide litigation support services to large law firms during their litigation
matters that occur across the United States.” Id. ¶ 3. Often, that entails setting up office
locations near courthouses “equipped with computers, monitors, printers, copiers,” and the like.
Id. ¶ 4.
According to Plaintiff’s complaint, in December 2017, Plaintiff entered into two
agreements with Defendant to “provide copiers, printers, and other support to [Defendant’s] law
firm clients” for projects in the District of Columbia and California. Compl. ¶ 5. For the project
in the District of Columbia—a trial expected to last four months—Plaintiff provided monitors,
printers, copiers, and associated hardware and software and responded to service calls and
delivered additional equipment as needed. Id. ¶¶ 6–7. Plaintiff provided similar equipment and
services for the project in California in early 2018. See id. ¶¶ 10–11. According to Plaintiff,
$80,747.27 and $6,540.00 remain outstanding on its invoices for the District of Columbia and
California projects, respectively. Id. ¶¶ 9, 12.
In August 2018, Plaintiff commenced this action, bringing a claim of common-law
breach of contract or, in the alternative, unjust enrichment to recover the unpaid amounts on the
two contracts. See id. ¶¶ 14–26. The complaint invokes this Court’s diversity jurisdiction under
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28 U.S.C. § 1332(a)(1), noting that Plaintiff seeks more than $75,000 and that the parties are
incorporated in and have their principal places of business in different states. Id. ¶ 3.
Defendant moved to dismiss the complaint, contending that subject-matter jurisdiction,
personal jurisdiction, and proper venue are all lacking, see ECF No. 7-1 (“Def.’s MTD Br.”),
which Plaintiff opposed, see ECF No. 8-1 (“Pl.’s Opp’n”).
Legal Standard
A. Subject-Matter Jurisdiction
A motion to dismiss a complaint for lack of subject-matter jurisdiction under Federal
Rule of Civil Procedure 12(b)(1) “presents a threshold challenge to the court’s jurisdiction.”
Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987). When faced with such a motion, a court
may look beyond the pleadings, but it must “accept all of the factual allegations in [the]
complaint as true,” Jerome Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253–
54 (D.C. Cir. 2005) (alteration in original) (quoting United States v. Gaubert, 499 U.S. 315, 327
(1991)), and otherwise “construe the complaint liberally, granting [the] plaintiff the benefit of all
inferences that can be derived from the facts alleged,” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d
1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)).
Still, the plaintiff “bears the burden of establishing, by a preponderance of the evidence, that the
court has jurisdiction.” Whiteru v. Wash. Metro. Area Transit Auth., 258 F. Supp. 3d 175, 182
(D.D.C. 2017) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)).
B. Personal Jurisdiction
A defendant may also, under Rule 12(b)(2), move to dismiss a complaint because the
court lacks personal jurisdiction over it. Fed. R. Civ. P. 12(b)(2). The plaintiff bears the burden
of establishing a court’s personal jurisdiction over the defendant, see FC Inv. Grp. LC v. IFX
Markets, Ltd., 529 F.3d 1087, 1091 (D.C. Cir. 2008), at this stage by making a “prima facie
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showing of the pertinent jurisdictional facts,” Livnat v. Palestinian Auth., 851 F.3d 45, 56–57
(D.C. Cir. 2017) (quoting First Chi. Int’l v. United Exch. Co., 836 F.2d 1375, 1378 (D.C. Cir.
1988)). When, as here, the court determines personal jurisdiction without an evidentiary hearing,
the “court must resolve factual disputes in favor of the plaintiff.” Id. at 57 (quoting Helmer v.
Doletskaya, 393 F.3d 201, 209 (D.C. Cir. 2004)). But it “need not accept inferences drawn by
[the] plaintiff[] if such inferences are unsupported by the facts.” Id. (quoting Helmer, 393 F.3d
at 209). As is the case in determining subject-matter jurisdiction, “the Court is not limited to the
four corners of the operative complaint, [and] ‘may receive and weigh affidavits and other
relevant matter to assist in determining jurisdictional facts.’” Xie v. Sklover & Co., LLC, 260
F. Supp. 3d 30, 37 (D.D.C. 2017) (quoting Khatib v. All. Bankshares Corp., 846 F. Supp. 2d 18,
26 (D.D.C. 2012)).
C. Venue
Finally, a party may challenge venue under Rule 12(b)(3), and if the court determines that
venue is improper, it must dismiss the action or, if it is in the interest of justice, transfer it to a
proper venue. See Fed. R. Civ. P. 12(b)(3); 28 U.S.C. § 1406(a). “In considering a Rule
12(b)(3) motion, the court accepts the plaintiff’s well-pled factual allegations regarding venue as
true, draws all reasonable inferences from those allegations in the plaintiff’s favor[,] and resolves
any factual conflicts in the plaintiff’s favor.” James v. Verizon Servs. Corp., 639 F. Supp. 2d 9,
11 (D.D.C. 2009). And the court may consider materials outside the pleadings. See Williams v.
GEICO Corp., 792 F. Supp. 2d 58, 62 (D.D.C. 2011). Ultimately, “[b]ecause it is the plaintiff’s
obligation to institute the action in a permissible forum, the plaintiff usually bears the burden of
establishing that venue is proper.” Freeman v. Fallin, 254 F. Supp. 2d 52, 56 (D.D.C. 2003).
Even if a court determines that venue is proper in its district, however, it may still transfer
the case “[f]or the convenience of parties and witnesses, in the interest of justice, . . . to any other
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district or division where it might have been brought.” 28 U.S.C. § 1404(a). A party moving for
transfer under § 1404(a) must show both that the action could have been brought in the transferee
district and that the applicable factors weigh in favor of transfer. See, e.g., Treppel v. Reason,
793 F. Supp. 2d 429, 435 (D.D.C. 2011). That burden is a heavy one, particularly in light of the
strong weight a plaintiff’s choice of forum is generally afforded. See Jalloh v. Underwood, 300
F. Supp. 3d 151, 155–56 (D.D.C. 2018); see also Gross v. Owen, 221 F.2d 94, 95 (D.C. Cir.
1955). And the court has “broad discretion” in determining whether transfer is appropriate under
this standard. Rosales v. United States, 477 F. Supp. 2d 213, 215 (D.D.C. 2007) (quoting In re
Scott, 709 F.2d 717, 720 (D.C. Cir. 1983)).
Analysis
Defendant makes three arguments in support of its motion to dismiss. First, it argues that
the District of Columbia’s “door-closing” statute, D.C. Code § 29-105.02(b), deprives this Court
of subject-matter jurisdiction over Plaintiff’s claims. Second, Defendant asserts that its relevant
contacts with the District of Columbia are insufficient for this Court to exercise personal
jurisdiction over it. Third, and relatedly, it claims that venue is improper here. In the alternative,
if the Court finds that venue is proper in this district, Defendant requests that the Court transfer
the action to the Middle District of Tennessee. The Court addresses each argument in turn.
A. District of Columbia’s Door-Closing Statute
Defendant claims that the Court lacks subject-matter jurisdiction to hear any of Plaintiff’s
claims because Plaintiff is barred from bringing this action by the District of Columbia’s door-
closing statute, D.C. Code § 29-105.02(b). See Def.’s MTD Br. at 7–9; ECF No. 9 (“Def.’s
Reply”) at 1–6. That provision states that a “foreign filing entity . . . doing business in the
District may not maintain an action or proceeding in the District unless it is registered to do
business in the District.” And Defendant insists that Plaintiff, which is not registered with the
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District of Columbia, has nevertheless been “doing business” here and is therefore barred from
bringing suit.
Plaintiff points out, however, that the statute provides an exception for businesses
engaged in “interstate commerce.” See Pl.’s Opp’n at 12. Specifically, the statute states that a
foreign entity “shall not be considered to be doing business in the District . . . solely by reason of
carrying on in the District” a list of enumerated activities, including “[d]oing business in
interstate commerce.” D.C. Code § 29-105.05(a). Providing services from one state to
another—here, from Plaintiff’s offices in Maryland to the project site in the District of
Columbia—is paradigmatic interstate commerce, Plaintiff contends. See Pl.’s Opp’n at 12–13.
It thus maintains that it did not have to register with the District of Columbia in order to sue.
The D.C. Circuit has instructed that a federal court sitting in diversity “must apply the
District’s door closing statute.” Tel. & Data Sys., Inc. v. Am. Cellular Network Corp., 966 F.2d
696, 699 (D.C. Cir. 1992) (per curiam); see also Landmark Health Solutions, LLC v. Not For
Profit Hosp. Corp., 950 F. Supp. 2d 130, 134 (D.D.C. 2013). Indeed, this requirement functions
as a jurisdictional bar, depriving the court of subject-matter jurisdiction over claims made by an
entity that fails to comply. See Tel. & Data Sys., 966 F.2d at 699; see also Kennedy v. City First
Bank of D.C., N.A., 88 A.3d 142, 144–45 & n. (D.C. 2014) (describing section 29-105.02(b) as a
jurisdictional prerequisite). Accordingly, if the registration requirement applies to Plaintiff, the
Court must dismiss Plaintiff’s claims.
As noted, section 29-105.02(b) prohibits any “foreign filing entity” doing business in the
District of Columbia from maintaining an action in District of Columbia courts unless it registers
to do business here. The statute defines “‘foreign,’ with respect to an entity, [to] mean an entity
governed as to its internal affairs by the law of a jurisdiction other than the District.” D.C. Code
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§ 29-101.02(14). Plaintiff, incorporated under the laws of Maryland, undoubtedly falls within
that definition, and Plaintiff makes no representation that it is registered with the District.
All the same, the Court agrees that Plaintiff’s activity in the District of Columbia is no
more than interstate commerce. The statute does not define “interstate commerce.” And it does
not appear that the D.C. Court of Appeals has had much occasion to consider the contours of the
exception. See Hargrove Displays, Inc. v. Rohe Sci. Corp., 316 A.2d 330 (D.C. 1974) (finding,
with only brief analysis, that a similar exception in a prior iteration of the District’s door-closing
statute includes the shipment of goods from an out-of-state provider to a District of Columbia
purchaser, even if the sale was solicited and consummated within the District).
In any event, the Court finds that Plaintiff’s conduct fell within any ordinary
understanding of the term. Plaintiff operates an equipment rental and servicing business across
nineteen states from its two offices in Maryland and Florida. See Pl.’s Opp’n at 13; ECF No. 8-3
(“Miller Decl.”) ¶¶ 3–4. And the only instances in this record of its commercial activities in the
District of Columbia are those involving its performance on the District of Columbia contract—
where Plaintiff delivered equipment to the District of Columbia and provided services from its
office in Maryland. See Compl. ¶¶ 6–7; Miller Decl. ¶¶ 8–9. The provision of goods and
services across state lines is a fundamental form of interstate commerce. See Champion v. Ames,
188 U.S. 321, 345 (1903); Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196, 203 (1885); see
also Aspire Channel, LLC v. Penngood, LLC, 139 F. Supp. 3d 382, 386–87 (D.D.C. 2015)
(concluding, based on the interstate-commerce exception, that a plaintiff corporation providing a
video programming service to viewers in the District of Columbia and elsewhere from out of
state was not barred from bringing a breach of contract claim in the District to recover on unpaid
advertising spots).
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Furthermore, this conclusion inevitably follows from the origins of the interstate
commerce exception. States have long employed similar door-closing statutes as a mechanism to
better facilitate state supervision of entities conducting business within their borders. See, e.g.,
Union Brokerage Co. v. Jensen, 322 U.S. 202, 210 (1944) (discussing a similar statute in
Minnesota); see also S & H Contractors, Inc. v. A.J. Taft Coal Co., Inc., 906 F.2d 1507, 1511–13
(11th Cir. 1990) (surveying cases addressing state forum-closing statutes). But the Supreme
Court has made clear that those provisions, when applied to interstate commerce, run the risk of
being an impermissible burden under the Commerce Clause. See, e.g., Union Brokerage, 322
U.S. at 209–210; Allenberg Cotton Co. v. Pittman, 419 U.S. 20, 32–34 (1974). Indeed, the D.C.
Court of Appeals, interpreting an earlier version of the District’s door-closing statute, has
acknowledged as much and construed the statute’s interstate-commerce exception to comport
with those limitations. See Hargrove, 316 A.2d at 331. Likewise, the current door-closing
statute emphasizes that the non-exclusive list of what does not constitute “doing business” in the
District, including conducting interstate commerce, should not be read to the exclusion of “other
activities that do not have the [necessary] intra-District presence.” D.C. Code § 25-105.05(a).
And thus even though Plaintiff has not made a constitutional argument in opposing Defendant’s
motion, the Court still finds the Supreme Court’s Commerce Clause jurisprudence, set forth
below, instructive.
In assessing whether a state’s door-closing statute unduly burdens interstate commerce,
the key question is whether a foreign corporation has “localized its business” in the forum state.
Allenberg Cotton, 419 U.S. at 32–33. Relevant considerations include the “permanence and
scope of the relationships between the foreign corporation and the forum state” and “whether the
intrastate transaction is an essential element of an interstate transaction.” S & H Contractors,
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906 F.2d at 1511. Applied here, those considerations only confirm that Plaintiff’s activity in the
District of Columbia constituted “interstate commerce” as that term is employed in the District’s
door-closing statute. Plaintiffs entered the district solely for the interstate provision of rental
equipment and services. Though the project lasted for several months, nothing in the record
indicates that this was anything more than the conclusion of a “unitary interstate transaction.”
Allenberg Cotton, 419 U.S. at 33 (quoting Union Brokerage, 322 U.S. at 211). Plaintiff has no
physical office here nor any other form of continuous presence. Cf. Eli Lilly & Co. v. Sav-On-
Drugs, Inc., 366 U.S. 276, 280–81 (finding a pharmaceutical company to be engaged in intrastate
business when it employed an office in the forum state of 18 representatives regularly trying to
sell the company’s products to forum-state residents). Its activity in the District of Columbia
was, for all relevant purposes, “solely . . . [d]oing business in interstate commerce.” D.C. Code
§ 29-105.05.
For these reasons, the Court finds that Plaintiff is not subject to the District of Columbia’s
door-closing statute and that it has subject-matter jurisdiction to hear Plaintiff’s claims.
B. Personal Jurisdiction
Defendant also argues that this Court lacks personal jurisdiction over it. See Def.’s MTD
Br. at 3–7. It avers that it does not have the continuous and systematic presence here necessary
for this Court, as a general matter, to subject it to its jurisdiction. See id. at 6–7. And it further
maintains that its alleged contacts with the District of Columbia specific to this action are
insufficient for this Court to exercise personal jurisdiction over it for purposes of Plaintiff’s
claims here. See id. at 3–6. Rather, Defendant insists that most of the conduct relevant to
Plaintiff’s breach of contract and unjust enrichment claims occurred outside this district,
particularly in Maryland and Tennessee, where the two businesses are located. See id. at 5–6.
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Plaintiff seeks damages based on two alleged contracts it entered into with Defendant—
one about a District of Columbia project, and the other a project in Concord, California. Though
Plaintiff combines these claims into single counts for breach of contract or, alternatively, unjust
enrichment, see Compl. ¶¶ 14–19; id. ¶¶ 20–26, for purposes of determining whether the Court
may exercise personal jurisdiction over Defendant to hear Plaintiff’s claims, the Court addresses
Plaintiff’s request for damages stemming from the two contracts separately.
1. District of Columbia Contract
Plaintiff disputes Defendant’s characterization of its contacts with the District of
Columbia, particularly with regard to Defendant’s conduct specific to the District of Columbia
contract at issue here. It points out that the very object of that contract was the provision of
equipment and services for a project “in the District of Columbia.” Pl.’s Opp’n at 9. Though it
acknowledges that some aspects of the contract negotiation and formation likely occurred in
other states, the performance of the contract, including interactions between the parties over the
course of the project, took place here. Id. at 8–10. And it specifically emphasizes that
Defendant “voluntarily and deliberately” established contacts with the District of Columbia
when it agreed to set up an office here for its client and sought Plaintiff’s assistance in equipping
it. Id. at 8. Those facts, Plaintiff insists, are sufficient for this Court to exercise jurisdiction over
Defendant for purposes of the claims here. For Plaintiff’s claims arising from the District of
Columbia contract, the Court agrees.
A federal court ordinarily must look to the law of the forum state to “determin[e] the
bounds if [its] jurisdiction over persons.” Daimler AG v. Bauman, 571 U.S. 117, 125 (2014)
(citing Fed. R. Civ. P. 4(k)(1)(A)). That entails a two-step process—namely, ensuring that the
forum state would authorize its courts to exercise jurisdiction over the defendant to hear the
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claims made against it and, if so, whether doing so comports with the limits imposed by federal
due process. See Forras v. Rauf, 812 F.3d 1102, 1105–06 (D.C. Cir. 2016).
The District of Columbia’s long-arm statute authorizes local courts to exercise
jurisdiction over a non-resident defendant “as to claims for relief arising from” certain of the
defendant’s contacts with the forum. D.C. Code § 13-423. That section of the statute addresses
what is commonly called the exercise of “specific” jurisdiction, which focuses on the conduct of
the defendant that gave rise to the claim and its relationship to the forum state. See Daimler, 571
U.S. at 127; Int’l Shoe Co. v. Washington, 326 U.S. 310, 317 (1945). Plaintiff relies exclusively
on section 13-423(a)(1), which provides that a District of Columbia court may exercise personal
jurisdiction over a defendant to hear claims arising from the defendant’s “transacting any
business in the District of Columbia.” See Pl.’s Opp’n at 5. Because that provision has been
held to be coextensive with the limits of Constitutional due process, however, the ordinary two-
step analysis collapses, and the Court need only determine whether exercising jurisdiction over
Defendant to hear the claims brought here would be consistent with the requirements of the Due
Process Clause. See Crane v. Carr, 814 F.2d 758, 762 (D.C. Cir. 1987) (citing Mouzavires v.
Baxter, 434 A.2d 988, 990–92 (D.C. 1981) (en banc)).
Due process requires that a defendant have “certain minimum contacts with [the forum
state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and
substantial justice.’” Int’l Shoe, 326 U.S. at 316 (quoting Milliken v. Meyer, 311 U.S. 457, 463
(1940)). Though physical presence in the state is not required, see Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 476 (1985), the defendant’s contacts must “have a basis in ‘some act
by which the defendant purposefully avails itself of the privilege of conducting activities within
the forum State, thus invoking the benefits and protections of its laws,’” Asahi Metal Indus. Co.,
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Ltd. v. Superior Court of Cal., 480 U.S. 102, 109 (1987) (quoting Burger King, 471 U.S. at 475).
In other words, “the defendant’s conduct and connection with the forum State [must be] such that
he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 287 (1980).
Defendant’s conduct giving rise to Plaintiff’s claims for damages stemming from the
District of Columbia project meets that standard. As Plaintiff alleges in its complaint, Defendant
contracted with Plaintiff for the provision of equipment and services for a project in the District
of Columbia. See Compl. ¶¶ 6–7; see also Miller Decl. ¶ 5. The agreement, according to
Plaintiff, specifically required Plaintiff to deliver equipment, including “monitors, printers,
copiers, and all associated hardware and software to [Defendant’s] client in Washington, D.C.”
Compl. ¶ 6; see also Miller Decl. ¶ 5. Defendant admits that it was physically present in the
District of Columbia over the course of that project. See Def.’s MTD Br. at 5. And over the
course of performing under the contract, Plaintiff delivered additional equipment to Defendant’s
client in the District of Columbia and responded to service calls here, all the while continuing to
communicate with Defendant “in the District of Columbia” from Plaintiff’s Maryland offices.
Miller Decl. ¶¶ 8–9 (emphasis added); see also Compl. ¶ 7.
Entering into a contract “to be performed, in whole or in part, in [the District of
Columbia],” has often been held to constitute the purposeful availment necessary to establish
“minimum contacts” with the forum. Exponential Biotherapies, Inc. v. Houthoff Buruma N.V.,
638 F. Supp. 2d 1, 7 & n.4 (D.D.C. 2009); see also Schwartz v. CDI Japan, Ltd., 938 F. Supp. 1,
6 (D.D.C. 1996) (“Where a non-resident has solicited the business relationship and the contract
calls for the performance of work within the District [of Columbia], the court may find that the
transaction has such a substantial connection with the District such that the exercise of personal
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jurisdiction is permissible.”). And that makes sense, because the touchstone of personal
jurisdiction is the reasonable expectation that a person might be sued in a particular forum. See
Burger King, 471 U.S. at 474; see also World-Wide Volkswagen, 444 U.S. at 297 (“The Due
Process Clause . . . gives a degree of predictability to the legal system that allows potential
defendants to structure their primary conduct with some minimum assurance as to where that
conduct will and will not render them liable to suit.”). When parties negotiate a contract where
performance is to occur in a particular forum, they harbor that expectation. 1
Here, the express object of Defendant’s agreement was that Plaintiff would perform—
i.e., deliver and service equipment—in the District of Columbia. And Defendant was present in
and continued to communicate with Plaintiff in the District of Columbia over the course of that
performance. See Miller Decl. ¶ 8; Def.’s MTD Br. at 5. It is hard to imagine more purposeful
contacts with this forum. Plaintiff’s claims for contract damages do not arise from some
“‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts” by Defendant with the District of Columbia.
Cellutech, Inc. v. Centennial Cellular Corp., 871 F. Supp. 46, 49 (D.D.C. 1994) (quoting Burger
King, 471 U.S. at 480). The place of performance, for example, was not indeterminate at the
1
Defendant in its reply argues that Plaintiff’s explanations for why this Court has both personal
and subject-matter jurisdiction are contradictory. See Def.’s Reply at 5–6. As an initial matter,
the doing-business requirement concerns Plaintiff’s activity within the District of Columbia,
while the bounds of this Court’s personal jurisdiction depend on Defendant’s contacts with the
District. To be sure, these two determinations will often overlap, particularly when the relevant
conduct involves a contractual relationship between the two parties. But the finding of one is not
mutually exclusive with the finding of the other. The minimum-contacts requirement is
ultimately grounded in the defendant’s reasonable expectations, and thus it tolerates a looser
association with forum state than is necessary to warrant imposing registration requirements and
still comport with the Commerce Clause. Indeed, the District’s door-closing statute implicitly
acknowledges as much, stating that the contours of the doing-business requirement should not be
used to determine, among other things, the bounds of personal jurisdiction. See D.C. Code § 29-
105.05(b).
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time of contracting, see Brunson v. Kalil & Co., Inc., 404 F. Supp. 2d 221, 232 (D.D.C. 2005),
nor was the alleged harm suffered by Plaintiff the result of some unforeseeable, downstream
effect of the contract, see, e.g., World-Wide Volkswagen, 444 U.S. at 297. The parties had every
intention for Plaintiff to perform in the District of Columbia, Plaintiff in fact did so, and Plaintiff
now seeks payment for that performance as allegedly promised under the agreement. Thus, the
Court has little trouble concluding that Defendant has the requisite “minimum contacts” with this
forum under the District of Columbia’s long-arm statute and the Due Process Clause.
In arguing otherwise, Defendant fails to grapple directly with Plaintiff’s allegations
affirmatively linking it with the District of Columbia. It points out that neither Defendant nor
Plaintiff is a resident of the District of Columbia, but that says nothing of whether any relevant
conduct occurred or effect was felt here. See Keeton v. Hustler Magazine, Inc., 465 U.S. 770,
779–80 (1984) (noting that the plaintiff need not be a resident of or have minimum contacts with
the forum state for a court to exercise personal jurisdiction over the defendant based on its
conduct there). And it emphasizes that the negotiation and formation of the contract occurred in
Maryland and Tennessee. While that conduct can be relevant to determining whether personal
jurisdiction exists, see Thompson Hine, LLP v. Smoking Everywhere Inc., 840 F. Supp. 2d 138,
142–43 (D.D.C. 2012), Defendant overlooks the parties’ agreement that Plaintiff would perform
in the District of Columbia, a crucial factor in determining whether a contract is substantially
connected to a forum, see Helmer, 393 F.3d at 206, as well as Defendant’s presence in the
District and continuing communications with Plaintiff over the course of Plaintiff’s performance.
Indeed, Defendant appears to assume that personal jurisdiction is a zero-sum game—that only
one court may have personal jurisdiction over a party in a given situation. But the key question
in determining personal jurisdiction here is not whether more of the relevant conduct occurred
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elsewhere—although the Court rejects that contention in examining venue below—but rather
whether enough of that conduct occurred in or affected the District of Columbia.
Defendant also tries to minimize its connection to the forum by asserting that its relevant
business conduct largely occurred outside the District of Columbia, because it negotiated and
formed the contract from its headquarters in Tennessee. See Def.’s MTD Br. at 5. To be sure,
“[a] plaintiff may not . . . depend upon his own activity to establish the existence of minimum
contacts.” COMAST Corp. v. Finshipyards S.A.M., 900 F. Supp. 515, 522 (D.D.C. 1995)
(omission in original) (quoting Reiman v. First Union Real Estate Equity & Mortg. Invs., 614
F. Supp. 255, 257 (D.D.C. 1985)). It is the defendant’s conduct that is relevant for purposes of
establishing personal jurisdiction over it. The D.C. Circuit has made clear, for example, that
preparatory actions by an in-state plaintiff in anticipation of performing on a contract with a
defendant in a foreign forum generally cannot, on their own, constitute the minimum contacts
necessary to hale that defendant into court in the state where that preparation took place. See
Thompson Hine, LLP v. Taieb, 734 F.3d 1187, 1194 (D.C. Cir. 2013). But Defendant contracted
with Plaintiff to provide the equipment and services in the District of Columbia and, according to
Plaintiff, promised to pay Plaintiff for that performance. And those actions by Plaintiff were not
merely ancillary or preliminary; they were the very point of the contract in the first place. 2
2
Defendant also makes the passing claim in its motion, at the end of its argument on specific
jurisdiction, that exercising personal jurisdiction over it “would not be constitutionally
reasonable.” Def.’s MTD Br. at 6. Though it is not entirely clear what Defendant means by that
statement, the Court assumes it is appealing to the Supreme Court’s instruction that even when a
defendant has established minimum contacts with a forum state, exercising jurisdiction over it
may still run afoul of traditional notions of “fair play and substantial justice.” See Burger King,
471 U.S. at 476 (quoting Int’l Shoe, 326 U.S. at 320). But Defendant appeals to none of the
relevant factors highlighted in Burger King, instead merely repeating that none of Defendant’s
actions “are substantially related to the District of Columbia.” Def.’s MTD Br. at 6. For the
reasons explained, the Court disagrees. Furthermore, to the extent Defendant is claiming that
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At bottom, the Court finds—based on Defendant’s contracting with Plaintiff to provide
equipment and services in the District of Columbia to Defendant’s client, the fact that Plaintiff
now seeks recovery for that performance, Defendant’s presence in the District of Columbia over
the course of the contract, and Plaintiff’s communications with Defendant in the District of
Columbia—that exercising jurisdiction over Defendant for Plaintiff’s claims for breach of
contract and unjust enrichment stemming from performance of the District of Columbia contract
comports with the limitations of D.C. Code § 13-423(a)(1) and the Due Process Clause.
2. Concord, California Contract
Also included in Plaintiff’s two claims for breach of contract and unjust enrichment is a
demand for recovery on a contract to provide equipment and services to one of Defendant’s
clients in Concord, California. See Compl. ¶¶ 10–12. By Plaintiff’s own account, this is a
separate contract, involving a separate project, which occurred across the country in a different
state. See id. ¶¶ 10–11. Indeed, Plaintiff sent Defendant separate invoices for the equipment and
services provided, totaling $6,540, which Plaintiff now claims as damages. Id. ¶¶ 11–12, 19, 25.
Yet Plaintiff makes no attempt to link this agreement to Defendant’s contacts with the District of
Columbia beyond the fact that it concerned similar services and was formed between the same
two parties.
Both D.C. Code § 13-423 and the Due Process Clause require that the defendant’s
contacts with the forum state have a connection to the underlying controversy. See Bristol-
Myers Squibb Co. v. Superior Court of Cal., 137 S. Ct. 1773, 1781–82 (2017); Forras, 812 F.3d
subjecting it to jurisdiction would be unreasonable due to the burden placed on it in having to
defend the suit here, that concern is adequately addressed by Defendant’s request for transfer of
venue. See Burger King, 471 U.S. at 477 (noting that a claim of substantial inconvenience can
be better addressed by a change of venue rather than a motion to dismiss for lack of personal
jurisdiction).
16
at 1106. The proper standard for determining relatedness, however, is an open question in this
Circuit. See Triple Up Ltd. v. Youku Tudou Inc., 235 F. Supp. 3d 15, 26–27 (D.D.C. 2017).
While some courts require a causal relationship between the defendant’s contacts with the forum
and the plaintiff’s claims, see id. at 26, other courts, including the D.C. Court of Appeals, take a
more forgiving, totality-of-the-circumstances approach that focuses on whether the exercise of
jurisdiction by a court in the forum state was “reasonably foreseeable,” see Shoppers Food
Warehouse v. Moreno, 746 A.2d 320, 334–36 (D.C. 2000) (en banc).
At least two judges in this district, however, have concluded that the latter approach—
often termed the “discernible relationship” test—is incompatible with existing Supreme Court
precedent interpreting the limits of the Due Process Clause. See Triple Up, 235 F. Supp. 3d at
27; Cockrum v. Donald J. Trump for President, Inc., 319 F. Supp. 3d 158, 177 (D.D.C. 2018).
For the reasons they articulate, this Court agrees. Relaxing the requisite connection between the
defendant’s conduct giving rise to the suit and the forum state because of the defendant’s
repeated but unrelated contacts with that forum would impermissibly “blur[] the distinction
between specific and general jurisdiction.” See Triple Up, 235 F. Supp. 3d at 27. The Supreme
Court’s recent decision in Bristol-Myers, in which it rejects California’s “sliding scale” approach
to specific jurisdiction, only reinforces this point. See 137 S. Ct. at 1781. Moreover, hinging the
exercise of jurisdiction on a loose and indefinite combination of factors runs contrary to the very
purpose of the Due Process Clause—namely, to provide defendants adequate notice of where
they might be sued. See Triple Up, 235 F. Supp. 3d at 27.3
3
Even though the discernible relationship test appears to still be the operative test in District of
Columbia courts, for purpose of interpreting the limits imposed by the Due Process Clause, as
opposed to the District of Columbia’s long-arm statute, that case law is not controlling.
17
That leaves the approaches, adopted by many federal courts, that require at least some
causal connection between the defendant’s contacts with the district and the plaintiff’s injury.
See Triple Up, 235 F. Supp. 3d at 26 (collecting cases). Whether that relationship must amount
to proximate causation or merely resemble but-for causation is also unsettled, id., but the Court
need not answer that question for purposes of this case. Plaintiff has alleged no causal
relationship between Defendant’s contacts with the District of Columbia and its failure to pay
Plaintiff for the work it performed in California. According to the complaint, the California
contract was a separate agreement, negotiated and formed apart from the District of Columbia
contract, governing the provision of equipment and services in California. See Compl. ¶¶ 10–11;
see also Pl.’s Opp’n at 3. None of the contacts linking Defendant to the District of Columbia—
the formation of the District of Columbia contract, Defendant’s presence here connected to that
contract, Plaintiff’s communications with Defendant here about that contract, and Defendant’s
failure to pay Plaintiff for the work it performed in the District of Columbia—appear to have any
causal relationship to Defendant’s alleged breach of the California contract.
The Court therefore concludes that it cannot exercise personal jurisdiction over
Defendant to hear Plaintiff’s claims for damages arising from its agreement with Defendant
regarding the Concord, California client, and that claim will thus be dismissed.
C. Venue
Defendant also challenges venue, resting on similar arguments underlying its claim that
the Court lacks personal jurisdiction. But the applicable venue statute, 28 U.S.C. § 1391,
provides that venue is appropriate for a suit against a corporate defendant in any district in which
that defendant is subject to the court’s personal jurisdiction. See 28 U.S.C. § 1391(b)(1), (c)(2);
see also Aguilar v. Michael & Son Servs., Inc., 292 F. Supp. 3d 5, 10 (D.D.C. 2017).
Accordingly, because the Court has already concluded that it may exercise jurisdiction over
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Defendant to hear Plaintiff’s claims stemming from the District of Columbia contract, venue is
proper here for those claims as well.
Even if venue is proper, however, Defendant requests transfer to the Middle District of
Tennessee. See Def.’s MTD Br. at 11–13. It argues that having to defend against this lawsuit in
this district would be unduly burdensome given its headquarters in Tennessee, contending that
Plaintiff could travel more easily because it does business across nineteen states. Id. at 12. And
it reiterates that it has “minimal contact with the District of Columbia,” and none beyond the
“specific litigation trial work project” at issue here. Id. at 12–13.
“For the convenience of the parties and witnesses, in the interest of justice, a district court
may transfer any civil action to any other district or division where it might have been
brought . . . .” 28 U.S.C. § 1404(a). In considering whether transfer is appropriate, courts take
into account a collection of private and public interests: (1) the plaintiff’s choice of forum; (2)
the defendant’s choice of forum; (3) where the claim arose; (4) the convenience of the parties;
(5) the convenience of the witnesses; (6) the ease of access to the sources of proof; (7) the local
interest in making local decisions regarding local controversies; (8) the relative congestion of the
transferee and transferor courts; and (9) the potential transferee court’s familiarity with the
governing law. W. Watersheds Project v. Tidwell, 306 F. Supp. 3d 350, 356 (D.D.C. 2017).
Upon review of these considerations, the Court concludes that Defendant has not met its burden
to demonstrate that the Court should transfer the case.
To begin with, there is no doubt this case could have been brought in the Middle District
of Tennessee. Defendant is a Tennessee corporation with its principal place of business in that
district, see Hogan Decl. ¶ 2, and thus venue is proper there under 28 U.S.C. § 1391(b).
19
Turning to the applicable factors, however, Defendant’s insistence that transfer is
warranted rests again on its mischaracterization of the relevant conduct. It contends that the
parties’ dispute arises from a business transaction largely conducted between Tennessee and
Maryland, and between a Tennessee company and a Maryland company. See Def.’s MTD Br. at
4–5, 10; Def.’s Reply at 6–7. But as the Court made clear in assessing personal jurisdiction,
Plaintiff’s claims have strong ties to the District of Columbia. The contract governed work to be
done here, both Defendant and Plaintiff entered the District of Columbia in relation to the
contract during the relevant period, and, crucially, the performance for which Plaintiff now seeks
compensation was in fact performed here.
As to each court’s familiarity with the applicable law, it is not clear yet which state’s law
should govern Plaintiff’s breach of contract and unjust enrichment claims. Indeed, if the parties
dispute which state’s law should govern, either this Court or the transferee court would need to
employ their forum state’s choice-of-law framework, a task for which both are equally equipped.
See, e.g., PCH Mut. Ins. Co., Inc. v. Cas. & Sur., Inc., 569 F. Supp. 2d 67, 72–73 (D.D.C. 2008).
And thus this factor, at least at this time, is of little help in deciding whether to transfer.
Moreover, at this preliminary stage, the record suggests that the District of Columbia may have a
stronger stake in the controversy. The parties’ dispute is largely interstate in nature, but, as
noted, it has strong ties to the District of Columbia. On the other hand, Defendant has made no
specific representations, beyond the fact that it is headquartered in Tennessee, showing that the
Middle District of Tennessee would have an equally strong interest in resolving Plaintiff’s
claims.
Defendant does point to the burden it will face if it must defend this suit in the District of
Columbia, as opposed to the Middle District of Tennessee where it is located. Def.’s MTD Br. at
20
12. The Court does not dispute that Defendant will face additional expense if required to litigate
this case here. But Plaintiff would face comparable burden if forced to pursue its claims in
Tennessee, where it represents that it has no offices or personnel. See Miller Decl. ¶ 11.
Defendant suggests that, given Plaintiff’s interstate business, it would be relatively less
inconvenienced. See Def.’s MTD Br. at 12. The Court is somewhat skeptical of this assertion,
especially given that Defendant too appeared to be serving clients as far away as California and
Oregon. See Hogan Decl. ¶¶ 3, 7. But even assuming Defendant faces a greater relative burden
in having to litigate the case here, that consideration would only marginally weigh in favor of
transfer. Indeed, beyond its general protestations about the expense of having to travel to the
District of Columbia, Defendant provides no detail about the projected expenses it expects to
incur and the impact those expenses would have on it as a business. Nor does it identify any
particular witnesses or proof that would be harder to present in this district than in the proposed
transferee district.
With only Defendant’s claim of inconvenience and desire to litigate in its home state
weighing slightly in favor of transfer, the Court declines to exercise its discretion to transfer this
case. The rest of the factors are either indeterminate or weigh against transfer. 4 And Defendant
must make a strong showing to overcome the significant weight the Court must afford Plaintiff’s
choice to file its lawsuit here. See Jalloh, 300 F. Supp. 3d at 155–56. To be sure, the Court
4
It is also worth noting that the civil caseload per active judge in the Middle District of
Tennessee appears to be higher than the caseload per active judge in this district according to the
most recent statistics. See United States Courts, Federal Judicial Caseload Statistics 2018
Tables, https://www.uscourts.gov/federal-judicial-caseload-statistics-2018-tables. While the
Court does not find this factor particularly compelling or useful, see United States v. H & R
Block, Inc., 789 F. Supp. 2d 74, 84 (D.D.C. 2011) (noting that general statistics provide little
insight into the caseload of individual judges and do not account for the differences in the types
of cases tried in different districts), if anything, it weighs slightly against transfer.
21
gives Plaintiff’s choice of forum less deference than usual given that Plaintiff is not a District of
Columbia resident. See Thayer/Patricof Educ. Funding, L.L.C. v. Pryor Res., Inc., 196
F. Supp. 2d 21, 31 (D.D.C. 2002). But even then, the Court finds that Defendant has fallen short
of its burden. For these reasons, Defendant’s motion in the alternative to transfer the case will be
denied.
D. Motion to Withdraw
As a final matter, the Court briefly addresses Defendant’s counsel’s pending motion to
withdraw. See ECF No. 13. The Court previously advised Defendant that, as a corporation, it
cannot proceed pro se and instructed Defendant and Defendant’s counsel to file a status report
addressing, among other things, Defendant’s efforts to secure new counsel. See Minute Order of
April 18, 2019. Defendant indicated that it had made no efforts to do so. See ECF No. 14 at 4.
Because this litigation will continue in light of the Court’s resolution of Defendant’s
motion to dismiss or to transfer, and further because the Court is inclined to grant counsel’s
motion to withdraw, the Court will order Defendant to submit a further status report in three
weeks apprising the Court of its efforts to secure new counsel. Defendant is hereby advised that
if, at that time, Defendant has not secured new counsel and makes no indication that it promptly
will, and the Court then permits Defendant’s current counsel to withdraw, Defendant may be
found in default. See Lennon v. McClory, 3 F. Supp. 2d 1461, 1462 n.1 (D.D.C. 1998).
Conclusion & Order
For the above reasons, it is hereby ORDERED that Defendant’s Motion to Dismiss or to
Transfer Venue, ECF No. 7, is GRANTED IN PART and DENIED IN PART. Plaintiff’s
claim for $6,540 in damages for breach of contract or, in the alternative, unjust enrichment based
on the Concord, California agreement with Defendant is DISMISSED for lack of personal
jurisdiction. Defendant’s motion is DENIED as to all other claims for relief.
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It is further ORDERED that Defendant shall, unless new counsel has entered his or her
appearance before then, submit a status report by September 12, 2019, addressing its efforts to
secure new counsel.
SO ORDERED.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: August 22, 2019
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