The opinion of the court was delivered by: COLLEEN KOLLAR-KOTELLY, District Judge
Plaintiff Dorothy Brunson brings this action against Defendants
Kalil & Company, Inc. ("Kalil") and Brunson Communications, Inc.
("BCI"). Plaintiff is seeking a declaratory judgment from this
Court that neither Plaintiff nor BCI owe Kalil any funds under a
Brokerage Agreement dated November 6, 2003, and signed by
Plaintiff on November 21, 2003. Defendant Kalil moves to dismiss
Plaintiff's Complaint (1) for lack of personal jurisdiction under
Federal Rule of Civil Procedure 12(b)(2) and (2) because
Plaintiff is the improper plaintiff before this Court, having
misused the Declaratory Judgment Act. Based on the reasoning set
forth below, this Court shall grant Defendant Kalil's motion to
dismiss for lack of personal jurisdiction. I: BACKGROUND*fn1
Plaintiff is an individual residing in Maryland, who until
October 1, 2004, was the sole shareholder of BCI. Am. Compl. ¶¶
1, 5; Pl.'s Opp'n to Def.'s Mot. to Dismiss ("Pl.'s Opp'n") at 1;
Pl.'s Opp'n, Ex. 1 (Decl. of Dorothy E. Brunson ("Brunson
Decl."), ¶¶ 1, 2. At times relevant to this suit, BCI was a New
York corporation that operated the television station WGTW and
the digital television station WGTW-DT (collectively "the
Station"). Am. Compl. ¶ 3; Brunson Decl. ¶ 3. The Federal
Communications Commission ("FCC") had licensed the Station to the
community of Burlington, New Jersey. Am. Compl. ¶ 3. The
Station's studios and operating equipment were located in
Philadelphia, Pennsylvania. Am. Compl. ¶ 3; Brunson Decl. ¶ 3.
In 2002 and 2003 several offers had been made to BCI to buy the
Station. Am. Compl. ¶ 6. In 2003, Kalil, an Arizona corporation
with its principal place of business in Tucson, Arizona, became
aware that BCI was considering a sale of the Station and sought
an exclusive brokerage agreement with BCI regarding the sale of
the Station. Am. Compl. ¶ 2, 7; Def.'s Mem. of P. & A. in Supp.
of Def.'s Mot. to Dismiss ("Def.'s Mem."), Ex. 1 ("Frank Kalil
Aff."), ¶ 2. On November 21, 2003, Plaintiff, in her capacity as BCI
President, signed the Brokerage Agreement dated November 6, 2003,
making Kalil BCI's exclusive broker in the search for a qualified
and satisfactory buyer for the Station. Frank Kalil Aff., Ex. A
(Brokerage Agreement). By its explicit terms, the Brokerage
Agreement expired on January 21, 2004, "except as to (i) any
agreement with a prospective buyer introduced to you by us that
is being negotiated or is pending closing, or (ii) any one whom
we introduce to you, and with whom you enter into an agreement on
or before June 30, 2004." Id. At this same time, Ms. Brunson
retained counsel located in the District of Columbia to represent
BCI "in all matters related to the Brokerage Agreement and sale
of BCI." Brunson Decl. ¶ 5.
Over the course of its search for a buyer, Kalil provided
Plaintiff with regular updates of its activities. Brunson Decl. ¶
7. One such update, dated April 16, 2004, listed Fox Television
Stations, Inc., as one of the prospective clients listed. Pl.'s
Opp'n, Ex. 2 (Apr. 16, 2004 Update) at 6. Kalil had contacted Fox
at its offices in Washington D.C. Id. The April 16, 2004 Update
lists only one contact with Fox. Id. The April 16, 2004 Update
also listed Trinity Christian Center of Santa, Ana, Inc.
("Trinity") as a prospective client. Id. at 7. Trinity is a
non-profit church corporation organized under the laws of
California. Am. Compl. ¶ 5. In contrast with Fox, the contacts
listed with Trinity were many, and the notes extensive;
culminating on April 16, 2004, with Kalil sending Trinity a
revised Letter of Intent. Id. However, as of June 30, 2004,
Kalil had not found an appropriate buyer for the Station. Am.
Compl. ¶ 13. On or about August 2, 2004, Plaintiff entered into a
stock purchase agreement ("Purchase Agreement"), dated July 30,
2004, with Trinity. Am. Compl. ¶ 14. The Purchase Agreement
closing occurred on October 1, 2004, in Washington, D.C., in
accordance with a provision in the Purchase Agreement calling for the closing to occur at BCI's office in Philadelphia "or at
such other time or place as [Trinity] and [Plaintiff] shall
mutually agree in writing." Am. Compl. ¶ 15; Def.'s Mem., Ex. 2,
§ 2 (Purchase Agreement). Kalil was not a party to the Purchase
Agreement and was not invited to attend the closing. Frank Kalil
Aff., ¶ 16; Def.'s Mem., Ex. 2 (Purchase Agreement); Pl.'s Opp'n,
Ex. 3 (Decl. of Barry Wood ("Wood Decl. I")), ¶ 14.
Prior to the closing, Kelly Callan, a Kalil employee, phoned
Barry Wood, BCI's long-time attorney who handled the negotiation
and finalization of the Purchase Agreement. Wood Decl. I ¶¶ 4, 9,
11. Mr. Wood is the president of Wood, Maine & Brown, Chartered,
a District of Columbia professional corporation with its main
office located at 1827 Jefferson Place, NW, Washington, D.C. Wood
Decl. I ¶ 1. Pursuant to their conversation in which Mr. Wood
informed Mr. Callan that he had no invoice on which to determine
what Kalil might be owed as a result of the Purchase Agreement,
Mr. Callan faxed Mr. Wood an invoice for $960,000. Wood Decl. I
¶¶ 11, 12. Mr. Wood subsequently requested from Mr. Callan the
document that had formed the basis for the invoice. Wood Decl. I
¶ 13. In response, on September 29, 2004, Mr. Callan faxed Mr.
Wood the Brokerage Agreement. Wood Decl. I ¶ 13. A number of
communications between Mr. Wood, Frank Kalil, President of Kalil,
and Tim Ryan, Kalil's attorney, followed. Mr. Ryan's office was
located in Pittsburgh, Pennsylvania. Def.'s Reply, Ex. 4 (Decl.
of Timothy P. Ryan ("Ryan Decl.")), ¶ 1. Most importantly:
October 4, 2004 Mr. Kalil faxed a letter to the
Station for the Plaintiff advancing a settlement
offer that was to expire on October 5, 2004 at 5:00
p.m. Wood Decl I ¶ 20.
October 5, 2005 Mr. Ryan faxed Mr. Wood a letter
indicating Kalil's intent to sue "[u]nless the full
amount owed by Brunson is immediately paid over to
Kailil." Wood Decl. I ¶ 21; Ryan Decl. ¶ 5; Ryan
Decl., Ex. A (Letter fromMr. Ryan to Mr. Wood).
October 6, 2004 Mr. Ryan called Mr. Wood in order
to discuss the letter he had sent the previous day
and to discuss the possibility of resolving the
matter without resorting to litigation. Mr. Wood did
not take the call. Ryan Decl. ¶ 6. Later that day, at
10:30 p.m. Mr. Wood returned Mr. Ryan's phone call
and left a message indicating that Plaintiff and BCI
were interested in settling the matter fairly and
reasonably. Ryan Decl. ¶ 7; Ryan Decl., Ex. B
October 7, 2004 Mr. Ryan faxed Mr. Wood a copy of
the letter Mr. Ryan had sent to Trinity's attorney
demanding payment of Kalil's commission. Mr. Wood
attempted to contact Mr. Ryan twice to discuss the
October 7, 2004 letter, but Mr. Ryan did not take the
calls. Wood Decl. I ¶ 22.
October 13, 2004 Mr. Wood left a message for Mr.
Ryan stating that the next day a letter would be sent
including Plaintiff's and BCI's position. Ryan Decl.
October 15, 2004 Mr. Wood faxed the settlement
letter to Mr. Ryan. The letter requested an
opportunity for Mr. Wood, Mr. Ryan, and Trinity's
lawyer to meet and try to resolve the matter. Wood
Decl. I ¶ 22; Ryan Decl. ¶ 10; Ryan Decl., Ex. C
(Letter from Mr. Wood to Mr. Ryan). Later that day,
Mr. Wood, Mr. Ryan, and Trinity's attorney had a
conversation in which Mr. Ryan renewed his October 4,
2004 offer to which Mr. Wood made a counteroffer.
Wood Decl. I ¶ 23; Ryan Decl. ¶ 11.
October 20, 2004 Mr. Wood called Mr. Ryan in
order to pursue the counteroffer he made in the
October 15, 2004 conversation. Wood Decl. I ¶ 23. Mr.
Wood and Mr. Ryan discussed the possibility of
Plaintiff and Mr. Kalil speaking directly regarding
the settlement. Ryan Decl. ¶ 12; Pl.'s Surrepy [sic]
("Pl.'s Surreply"), Ex. 1 (Decl. of Barry Wood ("Wood
Decl. II")), ¶ 7. Mr. Wood confirmed this
conversation in an email to Mr. Ryan later in the day
on October 20, 2004. Ryan Decl. ¶ 13; Ryan Decl., Ex.
D (Wood Email).
October 28, 2004 Mr. Wood called Mr. Ryan and
left a message. Wood Decl. I ¶ 25; Wood Decl. II ¶ 3;
Ryan Decl. ¶ 15.
November 1, 2004 Mr. Ryan returned Mr. Wood's
October 28 phone call and they spoke about
Plaintiff's decision not to talk directly to Mr.
Kalil. Mr. Wood also reiterated Plaintiff's
previously stated position. Ryan Decl. ¶ 16; Wood
Decl. II ¶ 4. Mr. Ryan also stated in his Declaration that he did not become
aware that Plaintiff filed suit in this Court until November 9,
2004. Ryan Decl. ¶ 18. Plaintiff had in fact filed the action on
or about October 21, 2004. Ryan Decl. ¶¶ 14, 18; Compl. at 9
(giving the date of the original Complaint as October 20, 2004).
On November 29, 2004, Kalil filed suit against BCI, Plaintiff,
and Trinity in the United States District Court for the District
of Arizona. Def.'s Mem. at 3; Frank Kalil Aff., ¶ 20.*fn2
Plaintiff's Amended Complaint sets forth one count for
declaratory judgment requesting this Court to affirm that neither
BCI nor Plaintiff owe Kalil any funds under the Brokerage
Agreement. Am. Compl. ¶ 30. Kalil, in response, posits two
defenses. First, Kalil argues that this Court has no personal
jurisdiction over it. Def.'s Mot. to Dismiss ("Def's Mot.") at 1;
Def.'s Mem. at 7. Second, Kalil argues that regardless of
personal jurisdiction, Plaintiff is the incorrect plaintiff to
bring this suit and has misused the Declaratory Judgment Act.
Def.'s Mot. at 1; Def.'s Mem. at 19. For the reasons set forth
below, Defendant Kalil's Motion to Dismiss is granted for lack of
personal jurisdiction.*fn3 Due to the fact that Kalil's
Motion can be resolved by analyzing only whether this Court has
personal jurisdiction over Kalil, there is no need for this Court
to address Kalil's second argument.
In considering a Motion to Dismiss for lack of personal
jurisdiction, pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, the plaintiff
has the burden of establishing a factual basis for the exercise
of personal jurisdiction over the defendant. "The general rule is
that a plaintiff must make a prima facie showing of the
pertinent jurisdictional facts." First Chi. Int'l v. United
Exch. Co., Ltd., 836 F.2d 1375, 1378 (D.C. Cir. 1988).
Conclusory statements, however, "do not constitute the prima
facie showing necessary to carry the burden of establishing
personal jurisdiction." Id. (quoting Naartex Consulting Corp.
v. Watt, 722 F.2d 779, 787 (D.C. Cir. 1983)). In order to
successfully carry its burden, the plaintiff must allege
"specific facts that demonstrate purposeful activity by the
defendant in the District of Columbia invoking the benefits and
protections of its laws." Helmer v. Doletskaya,
290 F. Supp. 2d 61, 66 (D.D.C. 2003), rev'd on other grounds, Helmer v.
Doletskaya, 393 F.3d 201 (D.C. Cir. 2004). "In determining
whether such a basis exists, factual discrepancies appearing in
the record must be resolved in favor of the plaintiff." Crane v.
New York Zoological Soc'y, 894 F.2d 454, 456 (D.C. Cir. 1990)
(citing Reuber v. United States, 750 F.2d 1039, 1052 (D.C. Cir.
The issue in this case is whether this Court has personal
jurisdiction over Defendant Kalil. It is not contested that Kalil
is not a resident of the District of Columbia. Am. Compl. ¶ 2;
Frank Kalil Aff., ¶ 2. Therefore, in order for this Court to have
personal jurisdiction over Kalil, this Court "must engage in a
two-part inquiry: A court must first examine whether jurisdiction
is applicable under the state's long-arm statute and then
determine 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). While it is not specifically stated in the Amended Complaint,*fn4
Plaintiff is asserting personal
jurisdiction under the "transacting any business" clause of the
District of Columbia's long-arm statute, D.C. Code §
13-423(a)(1), which provides:
(a) A District of Columbia court may exercise
personal jurisdiction over a person, who acts
directly or by an agent, as to a claim for relief
arising from the person's
(1) transacting any business in the District of
Columbia; . . .
D.C. Code § 13-423(a)(1) (2001). This "transacting any business"
clause has generally been interpreted broadly "to be coextensive
with the Constitution's due process requirements and thus to
merge into a single inquiry." GTE New Media Servs., Inc.,
199 F.3d at 1347.
While general personal jurisdiction permits a court to hear "a
suit . . . without regard to the underlying claim's relationship
to the defendant's activity" in the forum, specific personal
jurisdiction allows only those claims "based on acts of a
defendant that touch and concern the forum." Schwartz v. CDI
Japan, Ltd., 938 F. Supp. 1, 5 (D.D.C. 1996) (citing Steinberg
v. Int'l Criminal Police Org., 672 F.2d 927, 928 (D.C. Cir.
1981)). Section 13-423(b) states that "[w]hen jurisdiction over a
person is based solely upon [§ 13-423], only a claim for relief
arising from acts enumerated in this section may be asserted
against him." D.C. Code § 13-423(b) (2001). When read as a whole,
therefore, the personal jurisdiction conferred under § 13-423(a)
is limited by § 13-423(b) to specific jurisdiction by
"disallow[ing] claims that do not relate to the acts that form
the basis for personal jurisdiction." Schwartz,
938 F. Supp at 5. Consequently, to meet the requirements of personal jurisdiction
under the "transacting any business" prong of the long-arm
statute, the 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.'" Dooley v. United Tech. Corp., 786 F. Supp. 65, 71
(D.D.C. 1992) (quoting Int'l Shoe v. State of Washington, Office
of Unemployment Compensation and Placement, 326 U.S. 310, 316,
66 S. Ct. 154, 158, 90 L. Ed. 95 (1945)). Moreover,
"`[t]ransacting any business' within the meaning of [D.C. Code §
13-423(a)(1)] embraces those contractual activities of a
nonresident defendant which cause a consequence in the District."
Overseas Partners, Inc. v. PROGEN Musavirlik ve Yonetim
Hizmetleri, Ltd. Sikerti, 15 F. Supp. 2d 47, 51 (D.D.C. 1998);
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 those contractual activities of a nonresident
defendant which cause a consequence here.").
Accordingly, under the three-prong analysis set forth in
Dooley, the Court will consider first whether Plaintiff's
claim arose from Kalil's alleged business transactions in the
District, assuming arguendo that Kalil had been transacting
business in the District, thus indicating whether jurisdiction
can be found under § 13-423(a)(1); second, whether Defendant
was, in fact, "transacting any business" in the District; and
third, whether Kalil had the requisite minimum contacts to
satisfy due process. See Dooley, 786 F. Supp. at 71.
A. The Claim Must Arise from Business Transacted in the
In order for this Court to have personal jurisdiction over
Kalil, the actions giving rise to the claim must have occurred in the District. Id.; see also
COMSAT Corp. v. Finshipyards S.A.M., 900 F. Supp. 515, 521
(D.D.C. 1995) (stating that part of what a plaintiff needs to
show is that "the claim arose from the business transacted in the
District (so-called specific jurisdiction)"). As such, the Court
will now address this first prong of the analysis.
The Brokerage Agreement was between BCI and Kalil. Am. Compl. ¶
7; Def.'s Mem. at 1; Frank Kalil Aff., Ex. A (Brokerage
Agreement). The Brokerage Agreement is dated November 6, 2003,
and signed by the Plaintiff on November 21, 2003. Frank Kalil
Aff., Ex. A (Brokerage Agreement). It is alleged in Plaintiff's
Surreply that Kalil traveled to Philadelphia, the principal place
of business of BCI, in order to solicit the Brokerage Agreement.
Pl.'s Surreply at 4. It is further alleged that the Brokerage
Agreement "was formed in Philadelphia where Ms. Brunson signed it
on behalf of BCI." Id. Neither party alleges that any of the
solicitation, negotiation, or formation of the Brokerage
Agreement occurred in the District, nor that Plaintiff is a
resident of the District of Columbia. Contra Overseas Partners,
15 F. Supp. 2d at 51 (listed as reasons for why defendant
transacted business in the District are the fact that
District-resident plaintiff was actively sought out by
non-resident defendant; that some of the terms of the contract
were negotiated in the District; that defendant's agents traveled
to the District to discuss the contract; and that the negotiated
contract contemplated extensive performance of the contract in
the District). Contradicting Frank Kalil's sworn affidavit that
"[n]o part of the Agreement was to be performed in the District
of Columbia," Frank Kalil Aff. ¶ 23, Plaintiff alleges that the
Brokerage Agreement "was to be performed nation wide, wherever a
`prospective buyer' might be located." Pl.'s Opp'n at 5.
Furthermore, Plaintiff alleges that the Brokerage Agreement was
in fact performed in the District when on November 25, 2003,
Kalil contacted Fox Television President of Station Operations Tom
Herwitz. Id. at 5, 6, 11, 12, 15, 17 (referring repeatedly to
Kalil's solicitation of "prospective buyers," when in fact
Plaintiff refers only to the one contact made to Mr. Herwitz);
Id., Ex. 2 (Apr. 16, 2004 Update) at 6.
While Kalil attempts to clarify this contact with Mr. Herwitz
as merely "gaug[ing] the general interest of Fox in obtaining or
selling any of its holdings at the time," Def's Reply at 6, Kalil
also notes that this contact with the District was not related to
the sale of the Station. Def's Reply at 8. That the contact with
Mr. Herwitz was not related to the sale of the Station
necessarily precludes this contact from being the basis from
which Plaintiff's claim arose.
Plaintiff notes two other sets of contacts with the District
regarding Kalil's alleged business transactions in the District
of Columbia. First, she argues that Kalil's correspondence with
BCI's lawyer, Mr. Wood, in the District of Columbia regarding
Kalil's commission after the closing with Trinity were business
transactions in the District. Second, she argues that Kalil's
contacts with another communications corporation located in the
District of Columbia on November 29, 2004, was a business
transaction in the District. Assuming, arguendo, that both of
these actions qualify as "transacting any business" in the
District of Columbia,*fn5 neither ...