Pinkett v. Dr. Leonard's Healthcare Corp. ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RENE PINKETT,
Plaintiff,
v. Civil Action No. 18-1656 (JEB)
DR. LEONARD’S HEALTHCARE CORP.,
et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Rene Pinkett sustained injures from a B Yours Vibe 2 vibrator that was allegedly
manufactured by Defendant Vee International, Inc. She thus brought this suit against both Vee
International and Dr. Leonard’s Healthcare Corp., which sold her the vibrator from its mail-order
catalogue. In an Opinion dated September 28, 2018, this Court granted in part and denied in part
Dr. Leonard’s motion to dismiss for failure to state a claim. Now Vee International moves to
dismiss for lack of personal jurisdiction. Because the existence of such jurisdiction is currently
unclear, the Court will order jurisdictional discovery before deciding the Motion.
I. Background
Pinkett purchased the Vibe 2 from Dr. Leonard’s mail-order catalogue during May or
June of 2015. See ECF No. 1 (Notice of Removal), Exh. A (Superior Court Documents) at 2–21
(Compl.), ¶ 8. According to the Complaint, Vee International manufactured the Vibe 2 that was
offered by Dr. Leonard’s. Id., ¶ 19. As relevant here, Pinkett claims that Vee International —
which does business under the name Blush Novelties — “regularly conducts and solicits
business in Washington, D.C.,” by “designing, manufacturing, modifying, marketing, and selling
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sex toys and sexual aids to companies such as [Dr.] Leonard[’s].” Id., ¶¶ 6, 13. In addition to
Dr. Leonard’s, Vee International sells its products in the District “through many different online
retailers,” such as Amazon and eBay. See Sup. Ct. Docs. at 96–104 (Pl. MTD Opp.) at 2, 6 n.3.
Bereft of discovery, Plaintiff also notes the difficulty of establishing personal jurisdiction. Id. at
4.
The parties agree that Vee International is incorporated in New York and maintains its
principal place of business there. See Sup. Ct. Docs. at 89–90 (Affidavit of Eric Lee, COO, Vee
International), ¶ 2; Compl., ¶ 6. According to an affidavit from its Chief Operating Officer, that
Defendant does not have any offices, own or lease any real estate, pay any state taxes, or
maintain any bank accounts in the District. See Lee Aff., ¶¶ 5–8. Nor does Vee International
market or sell its products to any distributors who are incorporated or maintain their principal
place of business in the District. Id., ¶ 4. Dr. Leonard’s is incorporated in Delaware, for
instance, and maintains its principal place of business in New Jersey. See Sup. Ct. Docs. at 72–
85 (Def. MTD) at 6.
Vee International now moves to dismiss for lack of personal jurisdiction.
II. Legal Standard
Under Federal Rule of Civil Procedure 12(b)(2), a defendant may move to dismiss a suit
if the court lacks personal jurisdiction over him. The plaintiff bears the burden of establishing
personal jurisdiction, FC Inv. Grp. LC v. IFX Mkts., Ltd., 529 F.3d 1087, 1091 (D.C. Cir. 2008),
and its requirements “must be met as to each defendant.” Rush v. Savchuk, 444 U.S. 320, 332
(1980). In deciding whether the plaintiff has shown a factual basis for personal jurisdiction,
courts resolve factual discrepancies in her favor. See Crane v. N.Y. Zoological Soc’y, 894 F.2d
454, 456 (D.C. Cir. 1990). When personal jurisdiction is challenged, “the district judge has
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considerable procedural leeway in choosing a methodology for deciding the motion.” 5B
Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1351 (3d ed. 2004). The
court may rest on the allegations in the pleadings, collect affidavits and other evidence, or even
hold a hearing. Id.
III. Analysis
The Court may only exercise personal jurisdiction over Defendant if permitted by D.C.’s
long-arm statute and the Constitution’s Due Process Clause. See United States v. Ferrara, 54
F.3d 825, 828 (D.C. Cir. 1995); Daley v. Alpha Kappa Alpha Sorority, Inc., 26 A.3d 723, 727
(D.C. 2011); see also Fed. R. Civ. P. 4(k)(1)(A). This requirement translates into a two-step
inquiry: the Court “first examine[s] whether jurisdiction is applicable under the . . . long-arm
statute and then determine[s] whether a finding of jurisdiction satisfies the constitutional
requirements of due process.” GTE New Media Servs. Inc. v. BellSouth Corp., 199 F.3d 1343,
1347 (D.C. Cir. 2000).
There are several ways for a D.C. court to obtain personal jurisdiction over a non-resident
defendant. First, Pinkett relies on the Court’s authority to exercise “general jurisdiction” over a
non-resident defendant in certain circumstances. See Gorman v. Ameritrade Holding Corp., 293
F.3d 506, 509 (D.C. Cir. 2002); D.C. Code § 13-334(a). Second, she argues that the Court has
“specific jurisdiction” over Defendant because it “transact[ed] . . . business in the District of
Columbia.” § 13-423(a)(1). Third, she contends that the Court also has specific jurisdiction
because Vee International “caus[ed] tortious injury in the District of Columbia by an act or
omission outside the District of Columbia” and “regularly does or solicits business, engages in
any other persistent course of conduct, or derives substantial revenue from goods used or
consumed, or services rendered, in the District of Columbia.” § 13-423(a)(4). As explained
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below, the Court concludes that, on the current record, none of these three bases is sufficient
since Vee International likely lacks the “minimum contacts” with the District that the Due
Process Clause requires. The Court will nonetheless permit Pinkett to take some discovery
because she identifies certain facts that could, if more fully developed, support the exercise of
personal jurisdiction.
A. General Jurisdiction
The Due Process Clause permits general jurisdiction when a non-resident defendant
maintains sufficiently systematic and continuous contacts with the forum state, regardless of
whether those contacts gave rise to the claim in the particular suit. See Helicopteros Nacionales
de Colombia, S.A. v. Hall, 466 U.S. 408, 414–15 (1984). General jurisdiction is appropriate
based on “only a limited set of affiliations with a forum,” all of which are tantamount to
Defendant’s domicile. See Daimler AG v. Bauman, 571 U.S. 117, 137 (2014). For corporations,
general jurisdiction may be asserted if the forum is one in which the corporation is “‘fairly
regarded as at home,’” which has been defined as generally being either its “place of
incorporation” or its “principal place of business.” Id. (quoting Goodyear Dunlop Tires
Operations, S.A. v. Brown, 564 U.S. 915, 924 (2011)). D.C. law incorporates this due-process
standard. See Gorman, 293 F.3d at 510.
Vee International, however, is incorporated and maintains its principal place of business
in New York. See Lee Aff., ¶ 2; Compl., ¶ 6. Defendant is thus not “fairly regarded as at home”
in the District, and general jurisdiction does not exist. See Daimler, 571 U.S. at 137–39 (“[T]he
inquiry under Goodyear is not whether a foreign corporation’s in-forum contacts can be said to
be in some sense continuous and systematic, it is whether that corporation’s affiliations with the
State are so continuous and systematic as to render [it] essentially at home in the forum State.”)
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(internal quotations and citations omitted). Nor is this the “exceptional case” where “a corporate
defendant’s operations” beyond these two “paradigm” forums may be “so substantial and of such
a nature as to render the corporation at home in that State.” BNSF Ry. Co. v. Tyrrell, 137 S. Ct.
1549, 1552–53 (2017) (quoting Daimler, 571 U.S. at 137, 139 n.19). On the contrary, Vee
International has no offices, tax liability, bank accounts, or even distributors who are at home in
the District. See Lee Aff., ¶¶ 4–8.
Pinkett nonetheless argues that discovery may show that Vee International is somehow
subject to general jurisdiction. See Pl. Opp. at 4. Yet, “it is hard to see why much in the way of
discovery would be needed to determine where a corporation is at home.” Daimler, 571 U.S. at
139 n.20. Although she invokes the stream of commerce, see Compl., ¶ 38, the Supreme Court
has made clear that “the placement of a product into the stream of commerce . . . ‘do[es] not
warrant a determination that, based on those ties, the forum has general jurisdiction over a
defendant.’” Daimler, 571 U.S. at 132 (quoting Goodyear, 564 U.S. at 927). Pinkett’s argument
that Vee International “regularly conducts and solicits business in Washington, D.C.,” Compl., ¶
5, fares no better: The Supreme Court has likewise explained that “in-state business . . . does not
suffice to permit the assertion of general jurisdiction” because “[a] corporation that operates in
many places can scarcely be deemed at home in all of them.” BNSF Ry. Co., 137 S. Ct. at 1559
(quoting Daimler, 571 U.S. at 139 n.20). Because Plaintiff identifies no facts likely to support
Vee International’s being at home in the District, the Court does not have general jurisdiction
over Defendant. See Freedman v. Suntrust Banks, Inc., 139 F. Supp. 3d 271, 280–81 (D.D.C.
2015).
In any event, even if Plaintiff could demonstrate that Defendant had such contacts with
the District, she still would not satisfy the service requirements of D.C. law. A foreign defendant
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must be served “in the District” for the exercise of general jurisdiction. See D.C. Code § 13-
334(a). “Where the basis for obtaining jurisdiction over a foreign corporation is § 13-334(a), . . .
a plaintiff who serves the corporation by mail outside the District is ‘foreclosed from benefitting
from [the statute’s] jurisdictional protection.’” Gorman, 293 F.3d at 514 (quoting Everett v.
Nissan Motor Corp., 628 A.2d 106, 108 (D.C. 1993)); see also Gowens v. Dyncorp, 132 F. Supp.
2d 38, 42 (D.D.C. 2001). Here, Plaintiff did not serve Defendant in the District. See Pl. Opp. at
3. The Court, consequently, may not exercise general jurisdiction over it via § 13-334(a).
B. Specific Jurisdiction
Specific jurisdiction, conversely, permits a court to adjudicate those “issues deriving
from, or connected with, the very controversy that establishes jurisdiction.” Goodyear, 564 U.S.
at 919 (citation omitted). In other words, specific jurisdiction exists where a claim arises out of
the non-resident defendant’s contacts with the forum state. D.C.’s long-arm statute enumerates
the kinds of contacts with the District that are sufficient to bring a non-resident defendant into a
D.C. court, two of which are at issue here: “transacting any business in the District of Columbia”
and “causing tortious injury in the District of Columbia by an act or omission outside the District
of Columbia.” D.C. Code § 13-423(a)(1), (4).
1. Transacting Business
The “transacting any business” provision of the D.C. long-arm statute has been given an
“expansive interpretation,” rendering it “coextensive with the due process clause” when the
relevant contacts derive from some type of commercial or business-related activity. Helmer v.
Doletskaya, 393 F.3d 201, 205 (D.C. Cir. 2004) (quoting Mouzavires v. Baxter, 434 A.2d 988,
992 (D.C. 1981)); see Holder v. Haarmann & Reimer Corp., 779 A.2d 264, 270–71 (D.C. 2001).
This means that if a defendant transacts business here and a dispute arises from that transaction,
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he may be sued in the District so long as doing so would not violate due process. See, e.g.,
Hardy v. N. Leasing Sys., Inc., 953 F. Supp. 2d 150, 156–57 (D.D.C. 2013); Schwartz v. CDI
Japan, Ltd., 938 F. Supp. 1, 4 (D.D.C. 1996). Put another way, § 13-423(a)(1) reaches out to
non-resident defendants engaged in business activity in the District with as long an arm as the
Constitution will allow.
Here, Pinkett’s claims arise out of Vee International’s alleged transaction of business in
the District. See Quality Air Servs., LLC v. Milwaukee Valve Co., 567 F. Supp. 2d 96, 101 n.4
(D.D.C. 2008) (holding that products-liability claim “clearly ar[ose] out of” transaction of
business in District when defendant “ma[de] sales through a regional distributor that specifically
target[ed] the District”) (citing Stabilisierungsfonds Fur Wein v. Kaiser-Stuhl, 647 F.2d 200, 205
(D.C. Cir. 1981)). All of her jurisdictional allegations fairly fall within the domain of the
“transacting any business” prong of D.C.’s long-arm statute. As a consequence, “the statutory
and constitutional jurisdictional questions, which are usually distinct, merge into a single
inquiry.” United States v. Ferrara, 54 F.3d 825, 828 (D.C. Cir. 1995). A brief flashback to 1L
Civil Procedure reveals the seminal cases that establish the appropriate standard under the Due
Process Clause.
Due process permits a court to exercise specific jurisdiction over a non-resident
defendant when there are sufficient “minimum contacts” between the defendant and the forum
“such that the maintenance of the suit does not offend ‘traditional notions of fair play and
substantial justice.’” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken
v. Meyer, 311 U.S. 457, 463 (1940)). The defendant’s contacts must be extensive enough that he
“should reasonably anticipate being haled into court” in the forum state. World–Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). “Random,” “fortuitous,” or
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“attenuated” contacts are not enough; although physical presence in the forum is not necessary,
the defendant must have somehow “purposeful[ly] avail[ed]” itself of “the benefits and
protections of the forum’s laws.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475–76
(1985) (citations omitted).
This standard can be satisfied by “a defendant’s participation in the ‘stream of
commerce,’ which ‘refers to the movement of goods from manufacturers through distributors to
consumers.’” Williams v. Romarm, SA, 756 F.3d 777, 784 (D.C. Cir. 2014) (quoting J.
McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 881 (2011) (plurality)). “[A] ‘single isolated
sale’ from a distributor to a customer in the forum state,” however, “has never been sufficient to
establish minimum contacts between the manufacturer and the forum.” Id. at 785 (quoting
Nicastro, 564 U.S. at 888–89 (Breyer, J., concurring)). Instead, the Due Process Clause requires
that the defendant “target[] the District or its customers in some way.” Id. The defendant may
do so through “efforts directed toward the forum state, such as ‘special state-related design,
advertising, advice, [or] marketing.’” Id. (quoting Nicastro, 564 U.S. at 889 (Breyer, J.,
concurring)). A “‘regular flow or regular course of sales’ in the forum” may also help
demonstrate targeting. Id. at 785 & n.4 (quoting Nicastro, 564 U.S. at 889 (Breyer, J.,
concurring)).
On the current record, Plaintiff has not yet established that the exercise of specific
jurisdiction over Defendant satisfies due process. First, Pinkett claims that she is a resident of
the District and was injured while using the Vibe 2 that she purchased from Dr. Leonard’s, which
in turn obtained it from Vee International. See Compl., ¶¶ 3, 8, 13. While the Court may infer
from these facts that Plaintiff was injured in the District by the vibrator, “a ‘single isolated sale’
from a distributor to a customer in the forum state has never been sufficient to establish
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minimum contacts between the manufacturer and the forum.” Williams, 756 F.3d at 785
(quoting Nicastro, 564 U.S. at 888–89 (Breyer, J., concurring)).
Second, Pinkett’s argument that Vee International “delivered [the Vibe 2] into the stream
of commerce” through Dr. Leonard’s, Amazon, and other distributors, see Compl., ¶ 38; Pl.
MTD Opp. at 6 n.3, cannot provide a basis for personal jurisdiction without any allegation that
Vee International “targeted the District or its customers in some way.” Williams, 756 F.3d at
785. Likewise, Pinkett’s broad claim that Vee International “regularly conducts and solicits
business” in the District, see Compl., ¶ 6, fails to provide the “specific facts connecting the
defendant with the forum” that are necessary to “establish[] a factual basis for the [Court’s]
exercise of personal jurisdiction.” Marshall v. I-Flow, LLC, 856 F. Supp. 2d 104, 106 (D.D.C.
2012) (citations omitted). As the record now stands, therefore, Pinkett has not alleged sufficient
facts to warrant personal jurisdiction.
2. Causing Tortious Injury
Plaintiff also invokes one of the “tortious injury” prongs of the D.C. long-arm statute.
Specifically, the Court may exercise personal jurisdiction over a non-resident defendant who
“caus[ed] tortious injury in the District . . . by an act or omission outside the District . . . if he
regularly does or solicits business, engages in any other persistent course of conduct, or derives
substantial revenue from goods used or consumed, or services rendered, in the District.” D.C.
Code § 13-423(a)(4).
The resolution of this issue, however, follows directly from the Court’s prior
constitutional analysis conducted within the discussion of the “transacting any business” prong.
Because, as the Court just explained, the exercise of personal jurisdiction over Defendant in this
forum would violate due process, and because Plaintiff alleges no additional contacts relevant to
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the “tortious injury” prong, due process still stands as an obstacle to jurisdiction. Regardless of
the prong at issue, “[a] personal jurisdiction analysis requires that a court determine whether
jurisdiction over a party is proper under the applicable local long-arm statute and whether it
accords with the demands of due process.” Ferrara, 54 F.3d at 828 (emphasis added).
3. Jurisdictional Discovery
The Court is nonetheless wary of an unjust result if a “defendant defeat[s] the jurisdiction
of a federal court by withholding information on its contacts with the forum.” Rundquist v.
Vapiano SE, 798 F. Supp. 2d 102, 120 (D.D.C. 2011) (quoting El-Fadl, 75 F.3d at 676,
abrogated on other grounds by Samantar, 560 U.S. 305). One way to clarify whether Vee
International may be haled into court here is via jurisdictional discovery. In fact, the Court “has
broad discretion in its resolution of [jurisdictional] discovery problems,” and “[t]he standard for
permitting jurisdictional discovery is quite liberal.” App Dynamic ehf v. Vignisson, 87 F. Supp.
3d 322, 329 (D.D.C. 2015) (internal quotations and citations omitted). Plaintiff’s allegations
satisfy that liberal standard as to specific jurisdiction: they demonstrate “a good faith belief that
such discovery will enable it to show that the court has personal jurisdiction over the defendant.”
Id. (citation omitted).
Specifically, Pinkett manifests a good-faith belief that she can demonstrate purposeful
availment by discovering the nature and extent of the business that Vee International “regularly
conducts and solicits” in the District through its distributors. See Compl., ¶¶ 6, 38; see also
Rundquist, 798 F. Supp. 2d at 120–21 (ordering discovery when evidence of defendant’s
“licensing, franchising, or similar agreements” with other defendants could establish personal
jurisdiction); Delta Sigma Theta Sorority, Inc. v. LaMith Designs, Inc., 275 F.R.D. 20, 30
(D.D.C. 2011) (ordering discovery when evidence of defendant’s “selling merchandise via
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websites and catalogues” could establish personal jurisdiction). Discovery may reveal that, by
placing its products into the stream of commerce with distributors like Dr. Leonard’s, Amazon,
and eBay, Vee International “targeted the District or its customers in some way.” Williams, 756
F.3d at 785; see id. (“Nicastro makes clear that a manufacturer’s broad desire to target the United
States through a distributor will not suffice.”).
Such targeting may possibly be demonstrated, e.g., through a “regular flow or regular
course of sales” in the District or through “additional efforts” directed at the District, “such as
‘special state-related design, advice, [or] marketing.’” Id. at 785 & n.4 (quoting Nicastro, 564
U.S. at 889 (Breyer, J., concurring)). The “mere accessibility” of passive websites in the District
that sell the Vibe 2, however, is not enough. See Triple Up Ltd. v. Youku Tudou Inc., 235 F.
Supp. 3d 15, 23 (D.D.C. 2017) (quoting GTE New Media Servs., 199 F.3d at 1350), aff’d, 2018
WL 4440459 (D.C. Cir. July 17, 2018). Plaintiff is also advised that focusing solely on the
characteristics of the websites through which the Vibe 2 is sold, see Pl. Opp. at 5–7, will not help
her establish personal jurisdiction over Vee International if those characteristics represent the
“mere unilateral” activity of distributors. Williams, 756 F.3d at 785 (quoting World-Wide
Volkswagen, 444 U.S. at 298). She must demonstrate purposeful availment by Vee
International, not its distributors.
In sum, perhaps Defendant is a relative stranger to the District, broadly targeting the
United States through distributors like Dr. Leonard’s. Or perhaps Defendant regularly and
specifically targets the District with particular products, distribution agreements, marketing
campaigns, and the like. Without the benefit of discovery on specific jurisdiction, the Court
cannot say whether Vee International’s contacts in the District satisfy due process.
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IV. Conclusion
The Court will accordingly put Defendant’s Motion on ice until Plaintiff completes some
jurisdictional discovery. A separate Order consistent with this Opinion will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: October 29, 2018
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