Alkanani v. Aegis Defense Services, LLC

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________
)
KHADIM ALKANANI, )
)
Plaintiff, )
)
v. ) Civil Action No. 09-CV-1607 (KBJ)(AK)
)
AEGIS DEFENSE SERVICES, LLC, )
and AEGIS DEFENCE SERVICES )
LIMITED, )
)
Defendants. )
)
_________________________________ )
MEMORANDUM OPINION
Plaintiff Khadim Alkanani (“Alkanani” or “Plaintiff”), a former United States
soldier, filed the instant tort action after an employee of a private defense contractor
shot him in the foot in Iraq. That defense contractor, Defendant Aegis Defence
Services Limited (“Aegis UK”), filed a motion to dismiss the complaint, contending
that this Court need not reach the merits of Alkanani’s claims because the court lacks
personal jurisdiction over the company. (Def.’s Mot. to Dismiss for Lack of
Jurisdiction (“Def.’s Mot.”), ECF No. 48, at 1.) On August 7, 2013, Magistrate Judge
Alan Kay filed a Report and Recommendation that concludes that this case should be
dismissed for lack of personal jurisdiction over Aegis UK. (ECF No. 62, at 1.) 1
Plaintiff has filed objections to that report (Pl.’s Mem. of P&A in Resp. to Magistrate’s
Report and Recommendation, (“Pl.’s Objections”), ECF No. 63), and those objections
1
Page numbers throughout this opinion refer to the page numbers generated by the Court’s electronic
filing system.
1
are now before this Court. Because this Court concurs with Magistrate Judge Kay’s
conclusions that it cannot exercise either specific or general personal jurisdiction over
Aegis UK, the Court will overrule Alkanani’s objections and adopt Magistrate Judge
Kay’s Report and Recommendation. Consequently, Aegis UK’s motion to dismiss for
lack of personal jurisdiction is GRANTED, and this case is DISMISSED with
prejudice. A separate order consistent with this opinion will follow.
I. BACKGROUND
A. Facts
The parties do not dispute the facts giving rise to Alkanani’s allegations. On
June 4, 2005, Alkanani, while on active duty as a U.S. soldier in Iraq, was a part of a
vehicle convoy returning from an intelligence mission in the field to a U.S. military
facility in Baghdad. (Compl., ECF No.1, ¶¶ 3-9.) Aegis UK, a private defense
contractor, employed security guards to protect that facility. (Decl. of Jeffrey Day
(“Day Decl.”), ECF No. 48-1, ¶¶ 7-8.) As Alkanani approached a guarded checkpoint
near the facility’s main gate, at least one Aegis UK security guard overseeing the
facility opened fire on Alkanani’s vehicle. (See Compl. ¶¶ 11-13 (alleging that three
Aegis UK security guards shot at the vehicle); Def.’s Mot. at 8 (maintaining that a
single Aegis UK security guard shot at the vehicle).) One bullet hit Alkanani in the
foot, rendering him permanently disabled. (Compl. ¶¶ 14-17; Def.’s Mot. at 8.)
After sustaining that injury, Alkanani brought suit against two defendants: Aegis
UK and Aegis Defense Services, LLC (“Aegis LLC”). Aegis UK is a private defense
contractor headquartered in London, England, and incorporated under the laws of
England and Wales. (Day Decl. ¶ 1.) Aegis LLC—a company that recruits and runs
2
background checks on Americans for Aegis UK to hire (Second Supp. Day Decl. ¶ 4)—
is a nearly wholly-owned subsidiary of Aegis UK that is headquartered in the state of
Virginia. (Id. ¶ 24; Second Supp. Decl. of Jeffrey Day (“Second Supp. Day Decl.”),
ECF No. 60-1, ¶ 5.) At this stage of the litigation, the events surrounding the accident
and the extent of Alkanani’s injury are not at issue. Rather, the question before this
Court pertains to whether the Court has personal jurisdiction over Aegis UK, which
depends in large part on the extent of the defendant’s business activity in the District of
Columbia, as described in further detail below.
With respect to nature and scope of Aegis UK’s business, the record evidence
demonstrates that Aegis UK security guards were stationed in Baghdad to provide
security-management and protective services to entities involved in reconstruction
efforts in Iraq pursuant to a contract that the U.S. Department of the Army—a sub-
division of the Department of Defense—had awarded to Aegis UK. (See Day Decl. ¶¶
6-8 (referencing Contract No. W911SO-04-S-003 (the “Contract”)).) . Further, the
parties negotiated and executed the Contract outside of the District of Columbia: Aegis
UK negotiated the Contract with government officials located in Virginia, and the
company signed the Contract in the United Kingdom. (Id. ¶ 8.) It is also beyond
dispute that Aegis UK does not maintain an office, base employees, or keep a bank
account in the District of Columbia. (Id. ¶¶ 10-16, 23, 31-32.) Moreover, although
Aegis UK owns approximately 99% of Virginia-based subsidiary Aegis LLC (Day Decl.
¶ 38), Aegis LLC manages its operations almost entirely separate from Aegis UK. (Day
Decl. ¶¶ 26, 29-32.) The undisputed record evidence indicates that the two companies
3
share two board members, but they do not share offices or business locations, and they
maintain separate payrolls. (Id. ¶¶ 23, 28, 30-32.)
B. Procedural Background
Alkanani filed the instant complaint on August 24, 2009, and served the
complaint on Aegis UK by having it delivered to the company’s offices in London.
(See Return of Service/Aff., ECF No. 9.) The five-count complaint alleges that Aegis
UK and Aegis LLC are liable for: (1) negligence, (2) negligence in hiring training and
supervision, (3) intentional infliction of emotional distress, (4) negligent infliction of
emotional distress, and (5) gross negligence. (Compl. ¶¶ 54-71.)
In their required joint statement to the Court submitted under Federal Rule of
Civil Procedure 16, both Defendants represented an intent to file a dispositive motion in
this matter: Aegis UK stated that it intended to seek dismissal for lack of personal
jurisdiction, while Aegis LLC stated that it intended to file a motion for summary
judgment on the grounds that it was an improper party. (Joint Report to the Court
Pursuant to Fed. R. Civ. P. 16.3(c), ECF No. 8, at 2.) The Court permitted the parties to
engage in limited discovery regarding these threshold issues. (See Scheduling Order,
ECF No. 10, ¶ 1 (allowing for discovery “limited to issues raised in” the “motions
mentioned in” the parties’ joint report).) At the close of that limited discovery period,
Aegis LLC filed a motion for summary judgment, contending that there is no basis for
holding Aegis LLC liable for the tort of its parent company, Aegis UK (Aegis LLC’s
Mot. for Summ. J., ECF No. 47), and Aegis UK filed a motion to dismiss for lack of
personal jurisdiction (see Def.’s Mot. at 1).
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The Court referred both motions directly to Magistrate Judge Kay (ECF No. 46),
who ultimately recommended that this Court grant both motions. (See Report and
Recommendation; Report and Recommendation Regarding Summ. J., ECF No. 61.)
Neither party objected to Magistrate Judge Kay’s recommendation that the Court grant
Aegis LLC’s motion for summary judgment, and this Court adopted that
recommendation, agreeing with Magistrate Judge Kay’s conclusion that Alkanani had
failed to establish that any theory—including alter ego theory, successor liability
theory, or agency theory—supported Aegis LLC’s legal liability for the acts of its
parent company, Aegis UK. Alkanani v. Aegis Def. Servs., LLC, No. 09-CV-1607, 2013
WL 5203613, at *1 (D.D.C. Sept. 16, 2013).
Alkanani did object, however, to Magistrate Judge Kay’s recommendation that
this Court grant Aegis UK’s motion to dismiss for lack of personal jurisdiction. (See
Pl.’s Objections at 5-6.) On September 4, 2013, Aegis UK filed a response to
Alkanani’s objection. (Def.’s Resp. to Pl.’s Objections, ECF No. 64.) In addition, on
January 21, 2014, Aegis UK submitted a letter notifying this Court of the Supreme
Court’s recent decision on general jurisdiction in Daimler AG v. Bauman, 134 S. Ct.
746 (2014), (see Def.’s Notice of Suppl. Auth., ECF No. 66), and Alkanani responded
to that correspondence. (Pl.’s Resp. re Notice of Suppl. Auth., ECF No. 67.) 2 Thus,
before this Court at present is Aegis UK’s motion to dismiss for lack of personal
jurisdiction, Magistrate Judge Kay’s Report recommending that this Court dismiss the
2
Notably, Defendant filed its notice of supplemental authority as a letter, and Alkanani responded in
kind. (See Def.’s Notice of Suppl. Auth., ECF No. 66; Pl.’s Resp. re Notice of Suppl. Auth., ECF No.
67.) The Local Rules of this Court direct that “correspondence shall not be directed by the parties or
their attorneys to a judge,” unless the judge requests otherwise, LCvR. 5.1(b), which means that the
parties’ letters constitute a technical violation of the court’s rules. This Court has considered both
filings despite this procedural error.
5
case for lack of personal jurisdiction, Alkanani’s objections to the magistrate judge’s
report, Aegis UK’s letter noting supplemental authority, and Alkanani’s response to
Aegis UK’s correspondence.
II. LEGAL FRAMEWORK
A. Motions To Dismiss For Lack Of Personal Jurisdiction Pursuant To
Rule 12(b)(2)
Aegis UK seeks to dismiss this case pursuant to Federal Rule of Civil Procedure
12(b)(2) on the grounds that the court lacks personal jurisdiction over the company.
Rule 12(b)(2) specifically “authorizes a motion to dismiss based upon the traditional
defense that the court lacks jurisdiction over the defendant’s person, which raises a
question as to whether the controversy or defendant has sufficient contact with the
forum to give the court the right to exercise judicial power over defendant.” Wiggins v.
Equifax Inc., 853 F. Supp. 500, 501 (D.D.C. 1994) (citation omitted). The question
regarding whether a defendant has sufficient forum contacts “typically implicates a
[state’s] jurisdictional statute or rule and also quite frequently the Due Process Clause
of the Constitution as well.” 5B Charles A. Wright & Arthur R. Miller, Federal
Practice And Procedure § 1351, at 266 (3d ed. 2004). Indeed, the Supreme Court
recently confirmed that “[f]ederal courts ordinarily follow state law in determining the
bounds of their jurisdiction over persons.” Daimler, 134 S.Ct. at 753 (citation
omitted)).
As relevant here, the District of Columbia has “long-arm” and service statutes
that speak to the exercise of personal jurisdiction over foreign individuals and entities.
See D.C. Code § 13-423 (long-arm statute); id. § 13-334 (service on foreign
6
corporations). In short, D.C. law authorizes personal jurisdiction over foreign
corporations in two ways:
a foreign corporation, acting directly or through an agent, is subject to
personal jurisdiction in the District if, among other things, it has
“transact[ed] any business” here. D.C. Code § 13-423(a)(2001).
When jurisdiction is based on this section, the claim for relief must
“arise[ ] from” the acts conferring jurisdiction over the defendant.
D.C. Code § 13-423(b). This is sometimes referred to as specific
jurisdiction. In the alternative, D.C. Code § 13-334(a) may confer
general jurisdiction over corporations “doing business” in the District
of Columbia.
Gonzalez v. Internacional De Elevadores, S.A., 891 A.2d 227, 232 (D.C. 2006)
(alterations in original). As explained further below, specific jurisdiction requires a
nexus between a foreign corporation’s particular contact with the forum state and the
claim that the plaintiff asserts. See Novak-Canzeri v. Saud, 864 F. Supp. 203, 206
(D.D.C. 1994) (citation omitted). General jurisdiction, on the other hand, permits the
plaintiff to bring any sort of claim against a foreign corporation in D.C.—“regardless of
whether [the defendant’s] contacts gave rise to the claim in the particular case[,]”—so
long as the defendant has “sufficiently systematic and continuous contacts with the
forum state” such that it is fair for the forum’s courts to entertain any claim against the
entity. Brooks v. Harris, 808 F. Supp. 2d 206, 208 (D.D.C. 2011). This means that, in
D.C. as elsewhere, there is a practical distinction between the exercise of personal
jurisdiction over a foreign corporation based on its “doing business when that term
signals local activity sufficient to support all-purpose (general) jurisdiction over a
defendant[,]” and the exercise of personal jurisdiction over a corporation that is
transacting business, [when] invoked as a basis for specific adjudicatory authority over
7
claims relating to the very business transacted[.]” Crane v. Carr, 814 F.2d 758, 763
(D.C. Cir. 1987) (emphasis added) (internal quotation marks and citation omitted).
With respect to constitutional requirements, an exercise of personal jurisdiction
is ordinarily considered to comply with Due Process if the defendant has sufficient
contacts with the forum such that exercising jurisdiction over the defendant would
comport with “traditional notions of fair play and substantial justice.” Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945) (citation omitted); see also Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 474 (1985) (explaining that due process requires “minimum
contacts”). District of Columbia courts have clarified that the Due Process Clause
presents no additional hurdle for a plaintiff who can demonstrate that the defendant
meets either the “transacting business” test of D.C. Code § 13-423(a)(1) or is “doing
business” in the District for the purpose of § 13-334(a). Thus, a D.C. court need only
engage in a single analysis of the defendant’s contacts with the District of Columbia
under the standards established in the long-arm and service statutes because sufficient
contacts under the D.C. Code and proper service is all that Due Process requires. See
Gorman v. Ameritrade Holding Corp., 293 F.3d 506, 513 (D.C. Cir. 2002); Shoppers
Food Warehouse v. Moreno, 746 A.2d 320, 329-30 (D.C. 2000).
When personal jurisdiction is challenged, the plaintiff must demonstrate that
each defendant is subject to personal jurisdiction in the forum. See Crane v. N.Y.
Zoological Soc’y, 894 F.2d 454, 456 (D.C. Cir. 1990) (citation omitted). The plaintiff
bears the “burden of establishing a factual basis for the [Court’s] exercise of personal
jurisdiction over the defendant[,]” Shibeshi v. United States, 932 F. Supp. 2d 1, 2
(D.D.C. 2013) (alteration in original) (quoting Crane, 894 F.2d at 456), and to meet that
8
burden, the plaintiff “must allege specific facts connecting [the] defendant with the
forum[.]” Second Amendment Found. v. U.S. Conference of Mayors, 274 F.3d 521, 524
(D.C. Cir. 2001) (first alteration in original) (citation omitted). If the plaintiff contends
that the court has specific jurisdiction—i.e., that his claim arises from a specific contact
that the defendant had with the forum—plaintiff must allege facts demonstrating that
the nonresident defendant had contact with the forum and that that contact bears a
“discernable relationship” to the plaintiff’s claim. Shoppers Food Warehouse, 746
A.2d at 333. Alternatively, where general jurisdiction is alleged, the plaintiff must
demonstrate that the defendant “purposefully avail[ed] itself of the privilege of
conducting activities with the forum state, thus invoking the benefits and protections of
its laws.” Burger King, 471 U.S. at 475.
Where, as here, the parties have engaged in jurisdictional discovery, the
plaintiff’s burden is to prove the existence of personal jurisdiction by the
preponderance of the evidence. Shapiro, Lifschitz & Schram, P.C. v. Hazard, 90 F.
Supp. 2d 15, 20 (D.D.C. 2000). The court need not confine itself to the allegations in
the complaint as with other motions to dismiss; rather, it can consider materials outside
of the pleadings, including declarations and evidence produced during the course of
jurisdictional discovery. Frost v. Catholic Univ. of Am., 960 F. Supp. 2d 226, 231
(D.D.C. 2013) (citation omitted). Moreover, the court need not treat all of the
plaintiff’s allegations as true when deciding a personal jurisdiction question. Am.
Action Network, Inc. v. Cater Am., LLC, No. 12-1972, 2013 WL 5428857, at *2 (D.D.C.
Sept. 30, 2013) (“Unlike a Rule 12(b)(6) motion to dismiss, the Court need not treat all
of a plaintiff’s allegations as true when making a personal jurisdiction determination.”).
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But the court still must resolve any factual discrepancies in the plaintiff’s favor. Id.(citing Crane, 894 F.2d at 456).
B. Standard Of Review Of A Magistrate Judge’s Report And
Recommendation
Under Local Civil Rule 72.3(a), district court judges can specifically request that
a magistrate judge prepare a report recommending findings of fact and a disposition
with respect to the case. Id.; see also 28 U.S.C. § 636(b)(1). District court judges may
choose to accept, reject, or modify the recommendations of the magistrate judge in
whole or in part. LCvR 72.3(c); 28 U.S.C. § 636(b)(1). The district court reviews any
objections the parties make to the magistrate judge’s recommendations de novo. LCvR
72.3(c); Houlahan v. Brown, No. 11-1240, 2013 WL 5548839, at *1 (D.D.C. Oct. 8,
2013) (citation omitted). “If, however, the party makes only conclusory or general
objections, or simply reiterates his original arguments, the Court reviews the Report and
Recommendation only for clear error.” Houlahan, 2013 WL 5548839, at *1 (citation
omitted).
III. ANALYSIS
In this case, Alkanani has objected to the magistrate judge’s findings and
conclusions regarding the lack of either specific or general personal jurisdiction over
Aegis UK, and this Court has conducted a de novo review of the matter. At issue is
whether Magistrate Judge Kay was correct to conclude (1) that specific jurisdiction
cannot be maintained because there was an insufficient nexus between Alkanani’s
injuries and the contacts that Aegis UK had in the District of Columbia (see Report and
Recommendation at 8); (2) that general jurisdiction is not appropriate because Aegis
10
UK did not engage in enough activity in the District of Columbia to give rise to such
jurisdiction (see id. at 5-6); and (3) that Coalition Provisional Authority Order 17—an
order that the transitional government of Iraq issued shortly after the war in Iraq began
—did not establish a basis for the exercise of personal jurisdiction over Aegis UK (see
id. at 11). 3 As explained further below, while Aegis UK did negotiate a contract with
the U.S. Department of Defense pursuant to which Aegis UK employees were stationed
in Iraq to provide security services at the base where Alkanani was shot, this Court
cannot exercise specific jurisdiction over Aegis UK on that basis for several reasons:
(1) there is no allegation that those contract negotiations took place in the District of
Columbia; (2) even so, neither negotiations nor contracts with a federal government
entity qualify as a contact in the District of Columbia for the purposes of specific
jurisdiction; and (3) even if the Contract could qualify as a contact for the purpose of
D.C.’s long-arm statute, Alkanani’s tortious injury does not bear a close enough nexus
to the Contract to give rise to specific jurisdiction. Additionally, this Court agrees with
Magistrate Judge Kay that it cannot exercise general jurisdiction over Aegis UK
because Plaintiff’s allegations regarding various contacts that Aegis UK has had in the
District of Columbia (e.g., meetings and negotiations with the U.S. government, its
website, U.S. tax filings, and trips to D.C. to meet with non-government clients), even
3
Magistrate Judge Kay also concluded that the manner in which Alkanani served Aegis UK violated
D.C. law in a manner that precludes the exercise of general jurisdiction in any event. (See Report and
Recommendation at 6-7). Because this Court concludes that Aegis UK’s contacts with the District of
Columbia are insufficient to establish that the company was “doing business” in the District of
Columbia, it declines to reach the question of whether the statutory service requirements—which by
their terms only apply when a company is “doing business” in the District—were satisfied. See D.C.
Code § 13-334; see also, e.g., Sweetgreen, Inc. v. Sweet Leaf, Inc., 882 F. Supp. 2d 1, 4 (D.D.C. 2012)
(finding the defendant’s contacts in D.C. insufficient for an exercise of general jurisdiction, and
declining to discuss service); The Urban Inst. v. FINCON Servs., 681 F. Supp. 2d 41, 46 (D.D.C. 2010)
(same); Exponential Biotherapies, Inc. v. Houthoff Buruma N.V., 638 F. Supp. 2d 1, 12 (D.D.C. 2009)
(same); Doe I v. State of Israel, 400 F. Supp. 2d 86, 108 (D.D.C. 2005) (same).
11
if true, do not establish a sufficiently extensive presence in the forum to give rise to
general jurisdiction. The Court also concludes that nothing in Coalition Provisional
Order 17 independently confers jurisdiction over Aegis UK. Consequently, this Court
agrees that it does not have personal jurisdiction over Aegis UK, as Magistrate Judge
Kay found, and therefore the complaint must be dismissed.
A. This Court Cannot Exercise Specific Jurisdiction Over Aegis UK
As noted above, “[a] plaintiff seeking to establish specific jurisdiction over a
non-resident defendant must establish that specific jurisdiction comports with the
forum’s long-arm statute, D.C. Code § 13-423(a), and does not violate due process.”
FC Inv. Grp. LC v. IFX Mkts., Ltd., 529 F.3d 1087, 1094-95 (D.C. Cir. 2008) (citing
GTE New Media Servs., Inc. v. BellSouth Corp., 199 F.3d 1343, 1347 (D.C. Cir.
2000)). 4 Of the seven bases for specific jurisdiction that are set forth in the D.C. long-
arm statute, only the “transacting business” requirement of section 13-423(a)(1) is
applicable here, and, indeed, it is the only jurisdictional prong that Alkanani advances.
4
Section 13-423(a) of the D.C. Code extends personal jurisdiction over a nonresident defendant where
the plaintiff’s claim arises from the defendant’s
(1) transacting any business in the District of Columbia;
(2) contracting to supply services in the District of Columbia;
(3) causing tortious injury in the District of Columbia by an act or omission in the
District of Columbia;
(4) causing tortious injury in the District of Columbia by an act or omission outside the
District of Columbia if [the defendant] 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;
(5) having an interest in, using, or possessing real property in the District of Columbia;
(6) contracting to insure or act as surety for or on any person, property, or risk,
contract, obligation, or agreement located, executed, or to be performed within the
District of Columbia at the time of contracting, unless the parties otherwise provide in
writing; or
(7) marital or parent and child relationship in the District of Columbia[.]
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(Pl.’s Objections at 18 (“Plaintiff has satisfied D.C. Code § 13-423(a)(1) because Aegis
UK admittedly ‘transacted business’ in the District of Columbia.”).) To meet the
requirements of personal jurisdiction under the “transacting business” prong of the D.C.
long-arm statute, a plaintiff must prove:
First, that the defendant transacted business in the District of Columbia;
second, that the claim arose from the business transacted in D.C.; and
third, that the defendant had minimum contacts with the District of
Columbia such that the Court’s exercise of personal jurisdiction would not
offend traditional notions of fair play and substantial justice.
Brunson v. Kalil & Co., 404 F. Supp. 2d 221, 227 (D.D.C. 2005) (internal quotation
marks and citation omitted). Because the reach of “transacting business” jurisdiction is
coextensive with the reach of constitutional due process, see Helmer v. Doletskaya, 393
F.3d 201, 205 (D.C. Cir. 2004); Gonzalez, 891 A.2d at 234, the first and third questions
are essentially the same. Thus, the Court must answer two questions: whether the
defendant has “transacted business,” and whether the plaintiff’s injury arises from that
business.
Neither of these questions can be answered affirmatively in this case.
1. Was The Negotiation Of The Iraq Security Services Contract A
Business Transaction In The District of Columbia?
Alkanani maintains that his injury arose from the Contract between Aegis UK
and the Army because the Contract established Aegis UK’s presence in Iraq and that the
negotiation and execution of that Contract provides a basis for the exercise of personal
jurisdiction over Aegis UK. (Pl.’s Objections at 26-27.) It is well established that the
“negotiation, formation, and performance of contracts constitute a business transaction
under § 13-423(a)(1).” Brunson, 404 F. Supp. 2d at 230 (D.D.C. 2005) (citing Helmer,
393 F.3d at 205, and Ulico Cas. Co. v. Fleet Nat’l Bank, 257 F. Supp. 2d 142, 146
13
(D.D.C. 2003)); see also Mouzavires v. Baxter, 434 A.2d 988, 992 (D.C. 1981) (“It is
now well-settled that the ‘transacting any business’ provision embraces [certain]
contractual activities of a nonresident defendant[.]” (citation omitted)). But the
Contract between Aegis UK and the Department of Defense cannot be the basis for the
exercise of personal jurisdiction in this case because it is equally well established that
contract negotiations with the federal government are excluded from the jurisdictional
analysis. Moreover, even if the Contract did count as a relevant business transaction,
there is no allegation or evidence that that the parties here negotiated or executed the
Contract in the District of Columbia.
With respect to the first point, while contract negotiations ordinarily constitute
business transactions upon which personal jurisdiction may be based for the purpose of
D.C.’s long-arm statute, there is a settled “government contacts” exception to this
general rule. Under the government contacts exception, a nonresident’s entry into the
District of Columbia for “the purpose of contacting federal governmental agencies
cannot serve as a basis for personal jurisdiction.” Savage v. Bioport, Inc., 460 F. Supp.
2d 55, 62 (D.D.C. 2006) (quoting Freiman v. Lazur, 925 F. Supp. 14, 24 (D.D.C.
1996)); United States v. Ferrara, 54 F.3d 825, 831 (D.C. Cir. 1995) (noting that the
government contacts exception provides that contacts with federal agencies within the
District of Columbia “will not give rise to personal jurisdiction”); Brunson, 404 F.
Supp. 2d at 235 (same); Atlantigas Corp. v. Nisource, Inc., 290 F. Supp. 2d 34, 44
(D.D.C. 2003) (same). Indeed, “D.C. Courts have long carved out a ‘government
contacts’ exception” that applies when non-resident corporations “keep an office in the
District for the purpose of maintaining contact with Congress and governmental
14
agencies.” Sierra Club v. Tenn. Valley Auth., 905 F. Supp. 2d 356, 362 (D.D.C. 2012)
(collecting cases). Under the government contacts exception, any non-resident
defendant’s contacts with the government are essentially excluded from “the
jurisdictional calculus.” Savage, 460 F. Supp. 2d at 62 (holding that, under the
government contacts exception, defendant’s contacts with the Department of Defense
are excluded from the personal jurisdiction analysis); Naartex Consulting Corp. v. Watt,
722 F.2d 779, 786-87 (D.C. Cir. 1983) (same with respect to the Department of the
Interior); Freiman, 925 F. Supp. at 24 (same with respect to the U.S. Copyright Office).
Because it is the practice of this Circuit to discount contacts with the federal
government when determining whether a non-resident defendant’s contacts provide a
basis for the exercise of personal jurisdiction in D.C., the Court agrees with Magistrate
Judge Kay that the Contract for security services that Aegis UK negotiated with the
Department of Defense cannot serve as a “business transaction” upon which specific
jurisdiction may be predicated.
Significantly, even if the government contacts exception did not apply to exclude
the Contract at issue here from the Court’s assessment of specific personal jurisdiction,
the Contract still could not serve as the required “business transaction” for § 13-
423(a)(1) purposes because there is no allegation or evidence that the Contract was
negotiated or executed in the District of Columbia. The principal location of the
Department of Defense is unquestionably Arlington, Virginia—which makes the state of
Virginia the relevant forum for disputes arising from dealings with that agency. See
Jackson-Spells v. Rumsfeld, 457 F. Supp. 2d 39, 40 n.1 (“[T]he principal office of the
Department of Defense is in Arlington, Virginia, not the District of Columbia.”);
15
Spencer v. Rumsfeld, 209 F. Supp. 2d 15, 18 (D.D.C. 2002) (same). Alkanani’s
complaint does not allege otherwise, which means that there is no factual basis for any
inference that the Contract negotiations constituted a business transaction that took
place in the District of Columbia for the purpose of the long-arm statute. Similarly, the
record evidence indicates that Aegis UK actually signed the Contract in the United
Kingdom (Day Decl. ¶ 8), and Alkanani has not only failed to allege that the Contract
was executed in the District of Columbia, he has made no allegations or argument
related to the place of execution at all. (See, e.g., Pl.’s Opp’n at 9 (arguing only that
Aegis UK secured a contract with the U.S. government, “a party located in the District
of Columbia”); Pl.’s Objections at 23 (in response to “Aegis UK’s argument that the
[C]ontract was not entered in [the] District of Columbia[,]” arguing that physical
presence in the forum is not required).) As noted at the outset, it is the plaintiff’s
burden to demonstrate that the requirements of the long-arm statute have been satisfied,
and Alkanani’s failure to allege that the Contract was negotiated or signed in the
District of Columbia is fatal to his contention that the Contract can be considered a
“business transaction” for the purpose of § 13-423(a)(1).
2. Does Alkanani’s Claim “Aris[e] From” A Business Transaction That
Occurred In The District Of Columbia?
Under the D.C. long-arm statute, if a plaintiff has proven that the defendant
“transacted business” in the District of Columbia, he must also show that his claim
“aris[es] from” that business. See D.C. Code § 13-423(a); see also Mwani v. bin Laden,
417 F.3d 1, 12 (D.C. Cir. 2005) (quoting Helicopteros Nacionales de Colombia, S.A. v.
Hall, 466 U.S. 408, 414 (1984)); Brunson, 404 F. Supp. 2d at 227 (citation omitted).
This Court’s conclusion that the Contract does not constitute a relevant business
16
transaction, and that in any event there is no factual basis for concluding that the
Contract was negotiated or executed in the District of Columbia, necessarily disposes of
the “arises from” inquiry. However, Magistrate Judge Kay reached this secondary
question and concluded that there was no nexus between any business the Aegis UK
conducted in D.C. and Alkanani’s injury—a conclusion that Alkanani strenuously
rejects. (See Pl.’s Objections at 26-27.) This Court deems it worthwhile to explain its
own assessment of the nexus requirement and its application in the context of this case.
The statutory nexus requirement is essential to an exercise of specific
jurisdiction because “[t]he claim itself must have arisen from the business transacted in
the District or there is no jurisdiction[]” by the very terms of the long-arm statute.
Novak-Canzeri, 864 F. Supp. at 206 (citation omitted); see also D.C. Code § 13-423(b)
(“When jurisdiction over a person is based solely upon this section [§ 13-423(a)], only
a claim for relief arising from acts enumerated in this section may be alerted against
him.”). Notably, the operative phrase is “aris[e] from.” “Some courts have interpreted
the phrase ‘arise [from]’ as endorsing a theory of ‘but-for’ causation, while other courts
have required proximate cause to support the exercise of specific jurisdiction[.]”
Dudnikov v. Chalk & Vermillion Fine Arts, Inc., 514 F.3d 1063, 1078 (10th Cir. 2008)
(internal citations omitted); see also Shoppers Food Warehouse, 746 A.2d at 332-34(explaining courts’ various approaches to defining “arise from”). For the purpose of the
D.C. long-arm statute, it is clear that “arise from” is to be interpreted “flexibly and
synonymously with ‘relate to’ or having a ‘substantial connection with[,]’” which, at a
minimum means that the claim raised must “have a discernible relationship” to the
defendant’s business transacted in the district. Rundquist v. Vapiano SE, No. 09-1107,
17
2012 WL 5954706, at *8 (D.D.C. Nov. 9, 2012) (citation omitted); see also Shoppers
Food Warehouse, 746 A.2d at 332.
Alkanani argues that his injury bears a “discernible relationship” to Aegis UK’s
contacts in the District of Columbia because he was “injured as a result of the services
[Aegis UK] was providing pursuant to the [C]ontract.” (Pl.’s Objections at 27.) But as
Magistrate Judge Kay concluded, the fact that the Contract was for services pursuant to
which Aegis UK placed security employees in Iraq, and that those employees ultimately
acted to injure Alkanani, does not establish the necessary relationship between Contract
and claim for personal jurisdiction purposes as a matter of law. This is so primarily
because Alkanani “was neither a party nor a beneficiary of the contract” and, indeed, he
has brought a tort claim, not an action for breach of contract. (Report and
Recommendation at 10; see also Compl. ¶¶ 54-71.) Courts have appropriately
concluded that an injury sounding in tort does not “arise from” a contract for services
for the purpose of specific jurisdiction. See, e.g., Gonzalez, 891 A.2d at 232 (holding
that a personal injury claim based on an elevator falling did not arise from a
maintenance contract between her employer and the elevator manufacturer because she
sued in tort and not for a breach of contract); see also Collazo v. Enter. Holdings, Inc.,
823 F. Supp. 2d 865, 873 (N.D. Ind. 2011) (plaintiff’s personal injury claim based on an
accident aboard a trolley en route to pick up her rental car did not arise out of car rental
agreement for the purpose of Indiana’s long-arm statute); Martino-Valdez v.
Renaissance Hotel Mgmt. Co., No. 10-1278, 2011 WL 5075658, at *3 (D.P.R. Aug. 25,
2011) (plaintiff’s personal injury claim based on a slip-and-fall in a hotel room did not
arise out of the agreement to reserve the room for the purpose of Puerto Rico’s long-
18
arm statute). And this legal conclusion is clearly compelled under the circumstances
presented in this case, given that Alkanani’s injury occurred abroad and D.C.’s long-
arm statute specifically addresses tort claims in two sub-sections that are distinct from
the provision that brings the contract here within the statute’s purview. See D.C. Code
§ 13-423(a)(3), (4). The tort-related sub-sections provide for specific jurisdiction over
a nonresident defendant only when the plaintiff’s claim involves tortious injury that
occurs in the District of Columbia—not injury that occurs elsewhere, like Alkanani’s.
See D.C. Code §§ 13-423(a)(3), (a)(4) (allowing for personal jurisdiction over claims
arising from the defendant’s “causing tortious injury in the District of Columbia by an
act or omission” that took place inside or outside the District of Columbia (emphasis
added)); see also Lott v. Burning Tree Club, Inc., 516 F. Supp. 913, 916 (D.D.C. 1980)
(noting that § 13-423(a)(3) “clearly separates the act from the tortious injury and
affords personal jurisdiction over non-residents only when both act and injury occur in
the District” (citation omitted)). 5 Alkanani cannot expect this Court to interpret the
statutory nexus requirement to permit the exercise of specific personal jurisdiction over
Aegis UK under circumstances in which other provisions in that same statute would
clearly prohibit such jurisdiction. Cf. FDA v. Brown & Williamson Tobacco Corp., 529
U.S. 120, 133 (2000) (“It is a fundamental canon of statutory construction that the
words of a statute must be read in their context and with a view to their place in the
overall statutory scheme.” (internal quotation marks and citations omitted)).
5
Indeed, tortious acts that occur outside of the District of Columbia do not give rise to specific
jurisdiction unless the defendant “expressly aimed its tortious conduct at the forum[,]” and the harm
caused by the defendant was primarily felt in the forum. See Price v. Socialist People’s Libyan Arab
Jamahiriya, 294 F.3d 82, 95 (D.C. Cir. 2002) (emphasis in original) (citing IMO Indus., Inc. v. Kiekert
AG, 155 F.3d 254, 255-66 (3d Cir. 1998), and Wallace v. Herron, 778 F.2d 391, 394-95 (7th Cir.
1985)).
19
Consequently, in addition to the fact that the Contract does not qualify as a
business transaction that took place in the District of Columbia for the purpose of § 13-
423(a)(1), this Court agrees with Magistrate Judge Kay that Alkanani’s injury cannot be
considered to have “aris[en] from” Aegis UK’s alleged business transaction (the
Contract) for the purpose of § 13-423(b).
B. The Court Cannot Exercise General Personal Jurisdiction Over Aegis UK
Having concluded that the D.C. long arm statute does not permit the exercise of
specific jurisdiction over Aegis UK, the Court turns to consider the alternative basis for
the exercise of personal jurisdiction: where the defendant’s contacts in the forum are so
extensive that the defendant can be haled into court in the forum for any type of claim.
District of Columbia law permits an exercise of “general jurisdiction” over a
foreign corporation if the corporation is “doing business” in the District. See D.C.
Code § 13-334(a); J. McIntyre Mach., Ltd. v. Nicastro, 131 S. Ct. 2780, 2787 (2011)
(noting that, when there is general personal jurisdiction, the court can “resolve both
matters that originate within the [forum] and those based on activities and events
elsewhere” (citing Helicopteros, 466 U.S. at 414 & 415 n.9)); see also Gorman, 293
F.3d at 509 (citations omitted); Azamar v. Stern, 662 F. Supp. 2d 166, 173 (D.D.C.
2009) (“[General jurisdiction] provides for personal jurisdiction over a nonresident
defendant even if the claim at issue does not arise from the defendant’s activities in the
District of Columbia when the defendant is ‘doing business’ in the District.” (citation
omitted)). Section 13-334(a) of the D.C. Code provides:
20
In an action against a foreign corporation doing business in the District,
process may be served on the agent of the corporation or person
conducting its business, or, where he is absent and cannot be found, by
leaving a copy of the principal place of business in the District, or, where
there is no such place of business, by leaving a copy at the place of
business or residence of the agent in the District, and that service is
effectual to bring the corporation before the court.
D.C. Code §13-334(a) (emphasis added). “Although on its face § 13-334(a) appears
only to specify proper methods of service, the District of Columbia Court of Appeals
has held that compliance with the statute gives rise to personal jurisdiction over a
foreign corporation doing business in the District.” Gorman, 293 F.3d at 509 n.1
(citing AMAF Int’l Corp. v. Ralston Purina Co., 428 A.2d 849, 850 (D.C. 1981)); El-
Fadl v. Central Bank of Jordan, 75 F.3d 668, 673 n.7 (D.C. Cir. 1996), abrogated on
other grounds by Samantar v. Yousuf, 560 U.S. 305, 310 n.4 (2010).
Unlike the statutory provision governing specific jurisdiction, which sets forth
the particular scenarios in which it may apply, the D.C. Code does not include a
definition of the phrase “doing business,” nor does it provide examples of what it may
entail. However, D.C. courts have made clear that Section 13-334(a)’s “doing
business” jurisdiction reaches as far as the limits of constitutional due process. Day v.
Cornér Bank (Overseas) Ltd., 789 F. Supp. 2d 150, 155-56 (D.D.C. 2011) (“[T]he reach
of doing business jurisdiction under § 13-334(a) is co-extensive with the reach of
constitutional due process.” (quoting FC Inv. Grp., 529 F.3d at 1092)). And it is well
settled that, under the Due Process Clause, general jurisdiction over a foreign
corporation is only proper if the defendant’s contacts in the forum are “continuous and
systematic.” Int’l Shoe, 326 U.S. at 317; Johns v. Newsmax Media, Inc., 887 F. Supp.
2d 90, 95-96 (D.D.C. 2012) (noting that due process requires a defendant’s contacts in
21
the forum to be so “continuous and systematic” that requiring the defendant to answer
any claim in the forum’s courts “does not offend traditional notions of fair play and
substantial justice”).
Applying due process principles to the D.C. general jurisdiction statute, courts
have held that in order to establish that a corporation is “doing business” in the District
of Columbia for the purposes of general jurisdiction under § 13-334(a), a plaintiff must
demonstrate that a company has a “continuing corporate presence in [D.C.] with the aim
of advancing its objectives [here]” and must conduct “substantial business” in the
forum. Khatib v. Alliance Bankshares Corp., 846 F. Supp. 2d 18, 26-27 (D.D.C. 2012)
(citations omitted)); see also El-Fadl, 75 F.3d at 675; Gonzalez, 891 A.2d at 233.
Moreover, and perhaps even more significant, the Supreme Court recently emphasized
that “engag[ing] in a substantial, continuous, and systematic course of business” in the
forum is not, in and of itself, enough for general jurisdiction to comport with due
process. Daimler, 134 S. Ct. at 757-58. Rather, the defendant’s contacts and
affiliations with the forum must be so extensive, so constant, and so prevalent that they
render the defendant “essentially at home” in the forum. Id. (holding that a company’s
maintenance of several facilities and a regional office in the forum state, coupled with
significant sales in the forum state, was not enough to make the company “essentially at
home” in the forum for the purposes of general jurisdiction).
Considering how these principles might apply to the instant case, it is undisputed
that the archetypal bases for the exercise of general jurisdiction over a corporation—
i.e., having its place of incorporation or principal place of business in the forum in
which it is sued—are not present here. Nevertheless, Alkanani maintains that Aegis
22
UK’s meetings and negotiations with the U.S. government in D.C.; its website; its U.S.
tax filings; and its executives’ trips to D.C. to meet with non-government clients are
sufficient to satisfy the general jurisdiction standard. As explained further below,
however, this Court cannot exercise general jurisdiction over Aegis UK on these bases
because Aegis UK’s contacts with the federal government are not to be included in the
jurisdictional analysis, and because the company’s other activities in the District of
Columbia are not so substantial, continuous, or systematic to render Aegis UK
“essentially at home” here. Daimler, 134 S. Ct. at 757-58.
1. Aegis UK’s Meetings And Contract Negotiations With Government
Officials
Alkanani argues, first of all, that Aegis UK’s principal client is the United States
government, which is seated in the District of Columbia, and that this single client has
provided Aegis UK with “the majority of its revenue—hundreds of millions of dollars.”
(Pl.’s Objections at 7; see also Pl.’s Opp’n at 19 (same).) In this regard, Alkanani
points out that Aegis UK executives made 48 trips to the District of Columbia area to
meet with U.S. government officials in order to negotiate the very Contract at issue here
(though the actual negotiations took place in Virginia) and/or to visit the Iraqi embassy
in the District of Columbia in connection with the Contract. (See Ex. A to White Decl.,
ECF No. 48-3 (spreadsheet of Aegis UK employees’ trips to the District); Report and
Recommendation at 3 (noting the 48 business trips made “for the purpose of meeting
government officials or the Iraqi Embassy”); see also Pl.’s Objections at 8 (focusing on
Aegis UK’s business trips to the District); id. at 23 (arguing that “Aegis has availed
itself of the privileges and protections of the District of Columbia[ ] by signing a
contract with the Department of Defense (DoD) located in DC”).) However, as
23
Magistrate Judge Kay determined, the government contacts exception thwarts this line
of argument. (Report and Recommendation at 8 n.7, 9-10.)
As explained in Part III.A.1 supra, pursuant to the government contacts
exception, a nonresident’s entry into the District of Columbia for “the purpose of
contacting federal governmental agencies cannot serve as a basis for personal
jurisdiction.” Savage, 460 F. Supp. 2d at 62 (quoting Freiman, 925 F. Supp. at 24);
Ferrara, 54 F.3d at 831 (noting that the government contacts exception provides that
contacts with federal agencies within the District of Columbia “will not give rise to
personal jurisdiction”). This means that, if the government contacts exception applies,
none of Aegis UK’s visits to the District of Columbia to meet with United States
government agencies or the Iraqi embassy enter into the jurisdictional equation. See
Savage, 460 F. Supp. 2d at 62.
To forestall this result, Alkanani maintains that the government contacts
exception does not apply to the government meetings at issue here because, in addition
to having contact with the government, Aegis UK also had other private business
dealings in the District of Columbia. (Pl.’s Objection at 12 (contending that the
government contacts principle “is not applicable here because, apart from contract with
the government agencies, Aegis UK has a number of contacts with the District of
Columbia[.]”); see also id. at 9 (“The discovery documents produced show that Aegis
UK has provided services to private entities/individuals in the District of Columbia,
apart from the U.S. Army.”).) Alkanani is unable to provide any authority for the
proposition that otherwise excludable government contacts are to be counted for general
personal jurisdiction purposes whenever the defendant has other non-governmental
24
contacts in the District of Columbia, and the case law in this area suggests the opposite.
See, e.g., Savage, 460 F. Supp. 2d at 59 (citation omitted) (finding no general
jurisdiction over defendant whose government contacts were excluded from
consideration despite the fact that the company had also placed advertisements in D.C.
publications). Moreover, and in any event, Alkanani has not provided enough
information about Aegis UK’s “private business dealings” to permit a conclusion that
those contacts qualify as “doing business” in the District such that his bootstrapping
theory would even be plausible in this context. See infra Part III.B.2.c.
Accordingly, Aegis UK’s contacts with the federal government, including its
executives’ trips to D.C. to meet and negotiate contracts with government agencies,
cannot form the basis of general jurisdiction, as Magistrate Judge Kay properly
concluded. (See Report and Recommendation at 8 n.7 (rejecting Alkanani’s request to
include Aegis UK’s contract with the U.S. government as a minimum contact because
the U.S. government does “not constitute contacts within the District of Columbia for
purposes of jurisdictional analysis.”).)
2. Aegis UK’s Other Contacts With The District Of Columbia
Setting aside Aegis UK’s contacts with the federal government, Alkanani
contends that general jurisdiction still can be exercised over Aegis UK on the basis of
the company’s website, tax returns, and the various trips that Aegis UK executives
made to D.C. to meet with non-governmental entities. For the following reasons, this
Court concludes otherwise.
25
a. Aegis UK’s Website
Alkanani argues that Aegis UK’s website gives rise to general jurisdiction
because the website advertises that Aegis UK has an office in the District of Columbia
and because the website states that clients have access to a “round-the-clock tailored
threat assessment system” and “various other restricted online secure services.” (Pl.’s
Objections at 13-14.) 6 Aegis UK takes issue with Alkanani’s characterization of its
website on two grounds. First, Aegis UK notes that, although its website once referred
to a D.C. office, such reference was only intended to suggest a D.C.-area office, and
the website was actually referring to subsidiary Aegis LLC’s headquarters in nearby
Virginia, not any office in the District of Columbia. (Def.’s Resp. at 20.) Second,
Aegis UK contends that its website is too passive to constitute a basis for general
jurisdiction that comports with due process because the website only offers clients the
ability to access information, not to create accounts or engage in any transactions in
D.C. (Id. at 20-21.)
Courts in this circuit have considered similar website-related arguments, and
have concluded that, in order for a defendant’s internet presence to give rise to general
jurisdiction, residents of the forum must use the website in a continuous and systematic
way. FC Inv. Grp., 529 F.3d at 1092; Atlantigas, 290 F. Supp. 2d at 52 (“The question
is not whether District of Columbia residents ‘can’ transact business in the District with
the non-resident defendant through the defendant’s website, but if they actually ‘do[.]’”
(citing Gorman, 293 F.3d at 512-13)). Moreover, even if actual use of a website by
6
The link that Alkanani provides to the page of Aegis UK’s website that purportedly advertises a D.C.
office appears to be inoperable at present. (See Pl.’s Objections at 11 n.1 (citing
http://www.aegisworld.com/index.php/about-us/global-experience).) As of the date of this opinion,
Aegis UK’s website advertises an office in the U.S., without further detail; however, Aegis UK
concedes that its website once mentioned an office in the D.C. region. (Def.’s Resp. at 20.)
26
D.C. residents is established, general jurisdiction is only appropriate if the website is
commercial in nature, and if its features are so interactive that it operates, in essence,
like a virtual business establishment—i.e., the website permits users to engage fully
with the company in a manner that suggests that it was purposefully developed in order
for the company to maintain systematic and continuous contact with residents of the
forum state. See GTE New Media Servs., 21 F. Supp. 2d at 38 (citations omitted).
The paradigmatic website that qualifies as “doing business” in the forum for the
purpose of general personal jurisdiction is a website that enables the residents of the
forum to start and complete business transactions with the defendant entirely online.
See Gorman, 293 F.3d at 513 (finding the website that defendant, an out-of-state
securities broker, operated may have been sufficient to exercise general jurisdiction
where the website enabled D.C. residents to open brokerage accounts, transmit funds
electronically, and buy and sell securities). By contrast, a website that merely provides
residents of the forum with access to information is not enough to establish jurisdiction.
See FC Inv. Grp., 529 F.3d at 1092 (“An essentially passive website through which
customers merely access information is insufficient [for jurisdiction].” (internal
quotation marks and citation omitted); GTE New Media Servs., 199 F.3d at 1349-50(“[P]ersonal jurisdiction surely cannot be based solely on the ability of District
residents to access defendants’ websites, for this does not by itself show any persistent
course of conduct by the defendants in the District.”); see, e.g., Doe I v. State of Israel,
400 F. Supp. 2d 86, 121 (D.D.C. 2005) (noting that access to information on a website
alone is not even a sufficient contact for specific jurisdiction); Lewy v. So. Poverty Law
Ctr., Inc., 723 F. Supp. 2d 116, 125 (same). When a website falls somewhere in the
27
middle—when it mostly serves as a source of information but also solicits financial
contributions in the forum—the trend within this district is to require other non-internet
contacts in the forum in order to exercise jurisdiction. See, e.g., Blumenthal v. Drudge,
992 F. Supp. 44, 55-56 (D.D.C. 1998) (exercising jurisdiction over a defendant whose
website distributed news to D.C. residents, and solicited and actually received financial
contributions from D.C. residents, where that defendant also regularly visited D.C. for
business purposes); Heroes, Inc. v. Heroes Found., 958 F. Supp. 1, 5 (D.D.C. 1998)
(exercising jurisdiction over the defendant company that solicited financial donations
on its home page as well as in advertisements in local newspapers).
In light of the relevant case law and applicable legal standards regarding when a
website is sufficient to give rise to general personal jurisdiction, this Court agrees with
Magistrate Judge Kay that Aegis UK’s website does not establish a basis for the
exercise of general jurisdiction over Aegis UK. First of all, Alkanani has failed to
adduce any evidence that D.C. residents actually used Aegis UK’s website, let alone in
a continuous and systematic way, and absent such evidence the website cannot give rise
to jurisdiction. See FC Inv. Grp., 529 F.3d at 1092; Atlantigas, 290 F. Supp. 2d at 52. 7
Moreover, although Aegis UK’s website advertises that the company’s customers
receive a “round-the-clock tailored threat assessment system” (Pl.’s Objections at 13),
there is nothing in the record to suggest that anyone, much less D.C. residents, can sign
up for Aegis UK’s services or otherwise become an Aegis UK customer through the
website, nor has Alkanani alleged that website users can enter transactions for Aegis
7
This Court need not accept as true Alkanani’s bare allegation that D.C. residents have used Aegis
UK’s website. See Am. Action Network, 2013 WL 5428857, at *2.
28
UK’s services in a way that would constitute “doing business” over the internet. Cf.
Gorman, 293 F.3d at 512-13.
Finally, the fact that Aegis UK’s website ostensibly holds itself out as having a
“D.C. Office,” when such is arguably not the case, is beside the point: whatever the
Defendant may say about its degree of contact with a forum, in order to assert general
jurisdiction over a defendant, the court still must find facts establishing the requisite
actual connection to the forum. See, e.g., Estate of Thompson ex rel. Thompson v.
Mission Essential Pers., LLC, No. 11-547, 2013 WL 6058308, at *6 (M.D.N.C. Nov.
14, 2013) (finding the defendant’s website advertisement of an office in the forum was
not sufficient to establish general jurisdiction, and noting that the Court was still
required to consider the evidence of Defendant’s business interactions within the state
to determine if those actions were enough for general jurisdiction); see also Akerblom v.
Ezra Holdings Ltd., 848 F. Supp. 2d 673, 684 (S.D. Tex. 2012), aff’d, 509 F. App’x 340
(5th Cir. 2013) (deciding that a plaintiff could not establish jurisdiction over the
defendant based on the defendant’s business presentation that mentioned an office in
the forum when the office in question did not actually exist). Here, the Court concludes
that, for the reasons already discussed, Aegis UK’s website itself is not a sufficient
connection.
b. Tax Returns That Aegis UK Filed In The District of Columbia
Alkanani next asserts that tax returns Aegis UK filed in the District of Columbia
have jurisdictional implications. (Pl.’s Objections at 8 (maintaining that Aegis UK’s
tax returns demonstrate that the company engaged in “a significant amount of business”
in the District of Columbia).) During the course of discovery, Aegis UK produced
29
federal tax returns that it filed in the District of Columbia for the years 2006 through
2009, and those returns reported nearly one million dollars of income that its
subsidiary, Aegis LLC, had earned. (Pl.’s Opp’n at 7; Pl.’s Objections at 20; Def.’s
Resp. at 22.) Magistrate Judge Kay touched on the tax returns in passing, noting that
such returns do not reflect any income derived from Aegis UK’s own business activities
in the District of Columbia (Report and Recommendation at 3), and concluding that
there was no general jurisdiction as a result of these returns in part because there was
no agency relationship through which Aegis LLC’s business activity could be imputed
to Aegis UK (id. at 6).
This Court agrees with that conclusion for two reasons. First, to the extent that
Alkanani’s argument is that Aegis UK’s act of filing is itself a contact with D.C., there
is no support in law or logic for the proposition that the simple act of forwarding tax
forms into a forum state gives rise to general personal jurisdiction in that forum. As
has already been stated repeatedly, a defendant’s contacts with a forum must be
continuous, systematic, and extensive, and it is patently obvious that the mere act of
filing a return falls far short of this rigorous standard. Second, and even more
significant, the tax returns at issue here were not indicative of the extent of Aegis UK’s
contacts with the District; indeed, it is undisputed that the forms at issue in the instant
matter reported only D.C. income that subsidiary Aegis LLC had received, rather than
any money that Aegis UK had earned in this forum. (Def.’s Resp. at 22; see Report and
Recommendation at 3.) This Court has already concluded that Aegis LLC is not
properly considered to be the alter ego of Aegis UK for jurisdiction purposes, Alkanani,
2013 WL 5203613, at *1; therefore, Aegis LLC’s D.C. earnings are irrelevant to the
30
instant personal jurisdiction analysis. Compare El–Fadl, 75 F.3d at 675–76 (“[I]f
parent and subsidiary are not really separate entities, or one acts as the agent of the
other, the local subsidiary’s contacts can be imputed to the foreign parent.” (internal
quotation marks and citations omitted)). In this same vein, the Supreme Court has
emphatically rejected the theory that foreign corporations can be subject to general
jurisdiction whenever they have an in-state subsidiary or affiliate, calling it an
inappropriately “sprawling view of general jurisdiction[.]” Daimler, 134 S. Ct. at 760(citation omitted). Therefore, under the appropriately narrow view of the proper scope
of personal jurisdiction, parent Aegis UK cannot be haled into court in the District of
Columbia solely on the basis of its relationship with subsidiary Aegis LLC, no matter
how much business Aegis LLC has done in this forum.
In short, Alkanani’s attempt to base general jurisdiction over Aegis UK as a
result of its having filed fax forms in D.C. fails because neither the fact that Aegis UK
submitted documents to D.C. tax authorities that reported Aegis LLC’s income, nor the
fact that Aegis LLC had income earned from the District of Columbia to report, serves
to establish that Aegis UK had the requisite contact with the District of Columbia for
the exercise of general personal jurisdiction over the company.
c. Aegis UK’s Private Business Dealings In D.C.
Finally, the Court also rejects Alkanani’s argument that the contacts and
communications Aegis UK employees had with non-governmental residents of the
District of Columbia when visiting this area to solicit business and attend conferences
are sufficient to establish that the exercise of general jurisdiction over Aegis UK would
be proper.
31
As noted, the key to demonstrating the propriety of general jurisdiction over a
defendant is showing that the defendant had frequent and sustained contacts with
residents of the forum state that were directed at doing business in the forum such that
the defendant was “essentially at home” there. Daimler, 134 S. Ct. at 751 (citation
omitted); see also Khatib, 846 F. Supp. 2d at 26 (citation omitted). Here, the record
establishes that in the five years between 2004 and 2009, personnel from Aegis UK
made just over 100 trips to the District of Columbia area. (White Decl. ¶ 3; Ex. A to
White Decl.) This may seem like a significant number of visits to the area, but about
one third of these trips were actually made to visit Aegis LLC’s office in Virginia (see
White Decl. ¶ 3; Ex. A to White Decl.), so they hardly qualify as “doing business” with
D.C. residents in the District of Columbia. Another 48 trips were made for the purposes
of meeting with government officials in Virginia to negotiate contracts or visiting the
Iraqi embassy in the District of Columbia in connection with those contracts (White
Decl. ¶ 3; Ex. A to White Decl.; Def.’s Mot. at 23 n.6)—these are government contacts
that are excluded from the analysis for the reasons explained above.
This means that the sum total of the relevant appearances that Aegis UK
employees made in the District of Columbia between 2004 and 2009 were (1) the
approximately 37 times that Aegis UK employees visited D.C. for conferences and to
negotiate or oversee certain nongovernmental contracts with D.C. corporate residents
regarding work performed outside the District of Columbia (White Decl. ¶ 3; Ex. A to
White Decl.), and (2) the handful of Aegis UK’s remaining trips to the District of
Columbia related to managing certain existing contracts with D.C.-based companies;
exploring potential business acquisitions in the District of Columbia; and meeting with
32
banks, attorneys, and special interest groups here. (White Decl. ¶ 3; Ex. A to White
Decl.; Report and Recommendation at 3-4.) With respect to the first category of
nongovernmental contacts, Alkanani has not shown that attending conferences and
engaging in negotiations regarding contracts for work to be performed outside the
District of Columbia qualifies as “doing business” in the District of Columbia. SEC v.
Lines Overseas Mgmt., Ltd., No. 04-302, 2005 WL 3627141, at *7 (D.D.C. Jan. 7, 2005)
(even frequent contacts in D.C. were not enough when they did not pertain to doing
business in D.C.). Regardless, it is clear that three dozen such trips over the course of
five years—less than one per month, on average—does not a “continuing corporate
presence” make. See Allen v. Russian Fed’n, 522 F. Supp. 2d 167, 196 (D.D.C. 2007)
(noting that defendant’s regular yearly meetings with U.S. officials and sporadic visits
to the forum to enter contracts with private entities were not enough for general
jurisdiction); AGS Int’l Servs. S.A. v. Newmont USA Ltd., 346 F. Supp. 2d 64, 76-77
(D.D.C. 2004) (fourteen trips to the forum over two years to discuss business funding
were not enough for general jurisdiction).
Similarly, the few trips that were specifically directed toward managing ongoing
contracts with D.C.-based businesses or acquiring additional nongovernmental business
were unquestionably infrequent, and certainly not enough to render Aegis UK
“essentially at home” in D.C., as required for personal general jurisdiction. See, e.g.,
AGS Int’l Servs., 346 F. Supp. 2d at 76 (finding that employees visiting D.C. on average
over twice per month was not systematic and continuous enough to create a continuing
corporate presence). And that is even setting aside the distinction between trips aimed
at soliciting business and those directed toward doing business, which could reduce the
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number of relevant Aegis UK contacts in the District of Columbia even further, given
that the majority of the potential business opportunities that Aegis UK employees
traveled here to solicit were never realized. (See White Decl. ¶ 3; Ex. A to White Decl.
at 2-48.)
In sum, over Alkanani’s objection, this Court agrees with Magistrate Judge
Kay’s finding that Aegis UK’s activities in the District of Columbia—e.g., its (1)
contract negotiations and meetings with the U.S. government; (2) website; (3) tax
filings; and (4) contacts with non-government clients—did not render the company
“essentially at home” here for jurisdictional purposes. None of these activities is
sufficient to establish the propriety of general jurisdiction over Aegis UK standing
alone, and even taken together, these activities fall short of the kind of “systematic and
continuous” contacts with the District of Columbia that is required in order for this
Court to exercise personal jurisdiction over Aegis UK consistent with D.C. law and the
Due Process Clause. See Daimler, 134 S. Ct. at 746; see also AGS Int’l Servs., 346 F.
Supp. 2d at 76 (noting that even when a company has a local office in D.C., receives
funding from a D.C.-based bank, is in regular contact with the U.S. government and
foreign embassies, and has employees with leadership positions in local trade
associations , the company was not “doing business” in D.C. for the purposes of general
jurisdiction). Consequently, the Court concludes that it cannot exercise general
jurisdiction over Aegis UK.
C. Coalition Provisional Authority Order 17 Does Not Provide A Separate
Basis For Jurisdiction
Having failed to establish personal jurisdiction over Aegis UK through the
traditional routes, Alkanani tries a different tack. He contends that Coalition
34
Provisional Authority Order Number 17 (“CPA Order 17”)—an order that the
transitional government of Iraq issued shortly after the war in Iraq began—confers
personal jurisdiction over Aegis UK with respect to lawsuits filed in the District of
Columbia, and that Aegis UK should be estopped from arguing otherwise in light of its
reference to that Order in the context of prior litigation in this district. (Pl.’s Opp’n at
7, 14, 17-18; Pl.’s Objections at 6, 27-28.) Once again, this Court’s analysis is
consistent with Magistrate Judge Kay’s reasoned conclusion: CPA Order 17 does not
give rise to jurisdiction over Aegis UK.
The leader of the Coalition Provisional Authority issued CPA Order 17 “during
the early days of the U.S. occupation of Iraq.” Harris v. Kellogg, Brown & Root Servs.,
Inc., 796 F. Supp. 2d 642, 649 (W.D. Penn. 2011) (quoting Galustian v. Peter, 591 F.3d
724, 728 (4th Cir. 2010)). The order provides, in relevant part, that “[c]ontractors shall
be immune from Iraqi legal process with respect to acts performed by them pursuant to
the terms and conditions of a Contract or any sub-contract thereto.” Coal. Provisional
Auth. Order No. 17 (June 27, 2004) (“CPA Order 17”) § 3. 8 The order further states
that personal injury claims that arise from the acts or omissions of military contractors
and their personnel for activities relating to performance of their contracts
shall be submitted and dealt with by the Sending State whose personnel
(including the Contractors engaged by that State), property, activities, or
other assets are alleged to have caused the claimed damage, in a manner
consistent with the Sending State’s laws, regulations and procedures.
Id. (emphasis added). Alkanani contends that the order’s language directing that claims
“shall be subject to the exclusive jurisdiction of their Sending States” indicates that
CPA Order 17 automatically confers jurisdiction over Aegis UK in the District of
8
Available at http://www.usace.army.mil/Portals/2/docs/COALITION_PROVISIONAL.pdf (last visited
Mar. 24, 2014).
35
Columbia. (Pl.’s Objections at 28.) But Alkanani makes this argument without citing
any authority, and it is clear that the argument has no merit.
The appropriate analysis of CPA Order 17 “begins with its text.” Harris, 796 F.
Supp. 2d at 653 (quoting Abbott v. Abbott, 560 U.S. 1, 10 (2010) (internal quotation
marks omitted). As Magistrate Judge Kay observed, the plain language of CPA Order
17 does not, in and of itself, create jurisdiction in any given forum, much less in any
state or federal court in the United States. (See Report and Recommendation at 11.)
Cf. United States v. Kellogg Brown & Root Servs., Inc., 800 F. Supp. 2d 143, 156 n.5
(D.D.C. 2011) (“In a ‘suit on a statute’—that is, a suit in which the statute itself grants
the recovery, creates the jurisdiction, or permits special damages—the plaintiff must
show both that he is within the class the statute sought to protect and that the harm done
was one that the statute was meant to prevent.” (quoting Abrahams v. Young & Rubicam
Inc., 79 F.3d 234, 237 (2d Cir. 1996))). And even assuming arguendo that the District
of Columbia is the relevant “Sending State,” 9 CPA Order 17 clearly requires that the
applicable process for handling claims be one that accords with the Sending State’s law.
See CPA Order 17 § 18; see also Daimler, 134 S. Ct. at 752-53 (noting that an exercise
of personal jurisdiction must comport with the constitution and the relevant state long-
arm statute). This Court has already concluded that D.C.’s long-arm statute and
constitutional due process preclude the exercise of specific or general personal
jurisdiction over Aegis UK under the circumstances presented here. Thus, this Court
agrees with Magistrate Judge Kay that nothing in the text of CPA Order 17 authorizes
9
Notably, neither party provides authority establishing that the District of Columbia is the relevant
“Sending State” here for the purposes of CPA Order 17, which raises the question of whether CPA
Order 17 would give rise to jurisdiction in District of Columbia courts even under Alkanani’s
interpretation.
36
this Court to exercise jurisdiction over Aegis UK. (See Report and Recommendation at
11 (CPA Order 17 cannot “abrogate the U.S. Constitutional requirements of due
process” or the relevant statutory requirements, and “does not have the power to confer
jurisdiction when none would otherwise exist[.]”).)
Finally, the Court rejects Alkanani’s contention that Aegis UK’s own prior
interpretation of CPA Order 17, or the fact that the company apparently consented to
the court’s jurisdiction in this district in the context of another matter, somehow
prevents Aegis UK from objecting to the exercise of personal jurisdiction with respect
to the instant claim. (Pl’s Objections at 27 (arguing for estoppel based on Aegis UK’s
alleged attempt to “use [CPA Order 17] as both a sword and a shield”); see also id.(“Aegis UK has used this Order to obtain this Court’s jurisdiction when it was seeking
justice, but now inconsistently argues that the Order cannot confer jurisdiction over
it.”).) Alkanani attached to the instant complaint a copy of a trademark infringement
complaint that Aegis UK filed in the United States District Court for the District of
Columbia on March 6, 2008, in which Aegis UK references CPA Order 17. (Aegis
UK’s Compl. in Aegis Def. Servs. Ltd. v. Aegis Mission Essential Personnel, LLC, No.
08-cv-407, Ex. A to Compl., ECF No. 1-1.) Notably, Alkanani provides no detail
regarding Aegis UK’s alleged argument that CPA Order 17 gave rise to personal
jurisdiction over the defendant in that case. This lack of specificity, in and of itself,
undermines Alkanani’s argument. In any event, it appears that Aegis UK contended
that the court had subject-matter jurisdiction over the parties’ activities in Iraq pursuant
to CPA Order 17, not personal jurisdiction. (Id. ¶ 5.) Indeed, Aegis UK’s trademark
complaint itself belies Alkanani’s point, as Aegis UK was a plaintiff in that action, and
37
the company alleged an entirely different basis for personal jurisdiction over the
defendant in that case. (Id. ¶ 4 (alleging that the defendant “maintains an office in the
District of Columbia, does business in the District of Columbia, and is subject to suit
here”).) 10
For all of the foregoing reasons, CPA Order 17 does not create an independent
basis for personal jurisdiction over Aegis UK.
IV. CONCLUSION
Because there is no basis for exercising personal jurisdiction over Aegis UK as
explained above, this Court adopts Magistrate Judge Kay’s Report and
Recommendation with respect to its conclusions regarding personal jurisdiction. 11
Accordingly, as set forth in the accompanying order, Alkanani’s objections are
10
Notably, even if Aegis UK had alleged that CPA Order 17 provided a basis for personal
jurisdiction over the defendant in the context of its trademark infringement action, Alkanani’s argument
would still fail because neither waiver nor estoppel applies to prevent Aegis UK’s denial of personal
jurisdiction in this case. First, it is well established that consent to personal jurisdiction in one case
does not waive the right to assert lack of personal jurisdiction in another case in that same forum. See
In re Papst Licensing GMBH & Co. KG Litig., 590 F. Supp. 2d 94, 100 (D.D.C. 2008) (citing
Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44, 50 n.5 (2d Cir. 1991)). Moreover, judicial estoppel
only applies when a party prevails on the merits in earlier litigation. See Robinson v. District of
Columbia, No. 13-1297, 2014 WL 317846, at *3 (D.D.C. Jan. 29, 2014) (quoting Moses v. Howard
Univ. Hosp., 606 F.3d 789, 798 (D.C. Cir. 2010)). The docket in Aegis UK’s earlier case clearly
establishes that Aegis UK voluntarily dismissed its complaint, so Aegis UK did not have occasion to
argue, and a court certainly had no occasion to accept, that CPA Order 17 conferred personal
jurisdiction over the defendant in that case. (See Aegis Def. Servs. Ltd. v. Aegis Mission Essential
Personnel, LLC, No. 08-cv-407, Notice of Dismissal With Prejudice, ECF No. 3.) What is more, the
prior complaint relates to a trademark infringement action, so it is not at all clear that any argument or
ruling about the extent to which CPA Order 17 confers jurisdiction over such a claim in the context of
the prior action would be applicable here. Accordingly, even if Aegis UK had asserted that CPA Order
17 was the basis for personal jurisdiction over the defendant in the earlier case that Alkanani cites,
Aegis UK would not be estopped from taking a contrary position under the circumstances presented.
11
In light of this conclusion, the Court need not, and does not, address the question of venue, which
Magistrate Judge Kay raised and considered sua sponte.
38
overruled, Defendants’ motion to dismiss for lack of personal jurisdiction is
GRANTED, and this case is DISMISSED with prejudice.
Date: March 26, 2014 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
39