United States District Court, D. Columbia
November 18, 2005.
DOROTHY E. BRUNSON, Plaintiff,
KALIL & COMPANY, INC., and BRUNSON COMMUNICATIONS, INC., Defendants.
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.
II: LEGAL STANDARD
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 are the actions from which
the claim arose, and therefore neither can form the basis of this
Court's specific personal jurisdiction, under § 13-423(a)(1),
First, Kalil's correspondence with Mr. Wood did not give rise
to this claim. The actions that gave rise to this claim were
Kalil's actions under the Brokerage Agreement when it was seeking
a buyer for the Station. Kalil is seeking its commission based on
the Brokerage Agreement and the actions it performed under the Brokerage
Agreement that it argues brought about the sale of the Station,
Def.'s Mem. at 2, not based on the communications with Mr. Wood
subsequent to the closing. In Plaintiff's Amended Complaint, she
asserts that she is seeking declaratory judgment based on the
rights and obligations of the parties under the Brokerage
Agreement. Am. Compl. at 1 & ¶ 30. However, in her Opposition she
states that the closing of the sale in Washington, D.C. is the
"central event in the case." Pl.'s Opp'n at 18. The closing,
however, occurred pursuant to the Purchase Agreement, not the
Brokerage Agreement. Am. Compl. ¶ 14, Def.'s Mem., Ex. 2
(Purchase Agreement). By characterizing the closing to be the
central event in this case which gave rise to this claim,
Plaintiff is requesting this Court to analyze the Purchase
Agreement, not the Brokerage Agreement. Plaintiff cannot have it
both ways. This Court refuses to find that actions related to the
Purchase Agreement gave rise to this claim, which Plaintiff
ostensibly brought pursuant to the Brokerage Agreement.
Second, it is irrelevant whether Kalil made a contact with
another communications corporation located in the District in
November 2004. Plaintiff alleges that on November 29, 2004, Fred
Kalil, a Kalil employee, left a message for Frederick J. Ryan,
Jr., President and Chief Operating Officer of Allbritton
Communications Company ("Allbritton"), regarding the sale of an
Arkansas television station. Pl.'s Opp'n at 4, 7; Id., Ex. 4
(Aff. of Jerald N. Fritz ("Fritz Aff.")). The date of the phone
call was well after this suit had been filed. Furthermore,
Plaintiff's claim does not arise from Fred Kalil's telephone
message to Mr. Ryan of Allbritton, therefore it cannot be
asserted that this contact results in this Court having personal
jurisdiction over Kalil. Based on the fact that Plaintiff's claim did not arise from
business transacted in the District of Columbia, this Court
cannot have specific personal jurisdiction over Defendant Kalil,
pursuant to D.C. Code §§ 13-423(a)(1) and 13-423(b).
B. Transacting Any Business in the District of Columbia
Although Plaintiff was unable to show that her claim actually
arose from business transactions conducted in the District of
Columbia, and therefore this Court does not have specific
personal jurisdiction pursuant to § 13-423(a)(1), the Court will
address, in this second prong of the analysis, Plaintiff's four
arguments supporting her claim that Kalil was transacting
business within the District of Columbia and, therefore, specific
jurisdiction can be maintained. First, Plaintiff asserts that
Kalil's contact with Fox Television President of Stations
Operations Tom Herwitz amounted to Kalil performing the Brokerage
Agreement in the District of Columbia. Second, Plaintiff claims
that the telephone calls and mailings Kalil made into the
District in connection with its attempt to secure its commission
qualify as a conducting business in the District. Third,
Plaintiff contends that Kalil's communication with the FCC and
the Securities and Exchange Commission ("SEC") in the District
related to Kalil's general business dealings qualify as
transacting business in the District. And fourth, Plaintiff
argues that Kalil solicits business in the District, which
qualifies as transacting business in the District.
1. Kalil Performed the Brokerage Agreement in the District
Plaintiff first argues that Kalil performed the Brokerage
Agreement in the District when it "solicited Fox Television
Stations, Inc. (a/k/a/ Fox News) in the District of Columbia as a
`prospective buyer' of BCI." Pl.'s Opp'n at 8. This contact,
Plaintiff claims, "is the only contact necessary to justify the
Court's exercise of its jurisdiction over Kalil." Id. This
argument is predicated upon two interrelated principles: (1) performance of a
contract in the District qualifies as "transacting any business"
and (2) one act of transacting business is sufficient to satisfy
§ 13-423(a)(1). Id. at 13-14.
It is true that both the United States Court of Appeals and the
District Court in this Circuit have held that negotiation,
formation, and performance of contracts constitute a business
transactions under § 13-423(a)(1). See Helmer, 393 F.3d at 206
(holding that the formation and performance of a contract in the
District and the parties contemplated future contacts with the
District as a condition of performance gave the district court
personal jurisdiction over the non-resident defendant); Ulico
Cas. Co. v. Fleet Nat'l Bank, 257 F. Supp. 2d 142, 146 (D.D.C.
2003) (finding specific personal jurisdiction over non-resident
defendant because defendant had entered into a contract with
plaintiff "requiring continuing and wide-reaching contacts with
the District of Columbia"). However, in Helmer, the parties had
negotiated and formed the contract in the District, while in
Ulico, the contract required extensive future contacts with the
District. Here, none of these additional factors are present.
Kalil did not solicit Plaintiff in the District; rather,
according to Plaintiff's own Declaration, Kalil traveled to
Philadelphia to solicit the agreement. Brunson Decl. ¶ 4.
Formation of the Brokerage Agreement did not occur in the
District; instead, formation was completed on November 21, 2003,
when Plaintiff signed the Brokerage Agreement in Philadelphia.
Frank Kalil Aff., Ex. A (Brokerage Agreement).
Arguably, however, the Brokerage Agreement contemplated
performance in the District, because it states that Kalil will
use its "best efforts" to secure a "satisfactory and qualified
buyer" for the Station. Frank Kalil Aff., Ex. A (Brokerage
Agreement). Presuming that Kalil's contact with Fox was intended
under the Brokerage Agreement to solicit a buyer for the Station,
as factual disputes must be resolved in favor of the plaintiff,
Crane, 894 F.2d at 456, Plaintiff argues that this single
contact is enough to establish that Kalil was transacting
business in the District. She relies upon three cases in support
of this argument: (1) Helmer v. Doletskaya, 290 F. Supp. 2d 61
(D.D.C. 2003); (2) Schwartz v. CDI Japan, Ltd., 938 F. Supp. 1
(D.D.C. 1996); and (3) Reiman v. First Union Real Estate Equity
& Mortgage Invs., 614 F. Supp. 255 (D.D.C. 1985). Helmer and
Reiman employ the same language, "under certain
circumstances," to limit the scope of the phrase "a single act
may be sufficient," Helmer, 290 F. Supp. 2d at 67; Reiman,
614 F. Supp. at 257, but neither court had reason to actually apply this
First, in Helmer, the plaintiff was a District resident who
had been living for some time in Russia. Helmer,
290 F. Supp. 2d at 64. The Defendant was a Russian national. Id. The two
began dating and when they returned to the District for a brief
stay in July 1993, they entered into an agreement whereby the
plaintiff agreed to support the defendant, subject to repayment
when the defendant had established her career. Id. The
plaintiff had agreed to allow the defendant the use of two of his
credit cards, the bills for which were directed to the
plaintiff's District residence. Id. at 65. The district court
found that the "sole connection" between the contract to repay
the expenses and the District was that the credit card bills were
sent to the District. Id. at 68. It concluded that this
connection with the District was "insufficient to establish the
requisite `substantial connection' with the forum." Id. This
holding was reversed by the Court of Appeals, which found there
to be more than one contact between the defendant and the
District. Helmer, 393 F.3d at 206. In particular, the Court of
Appeals held that because the contract was formed in the
District, that the corpus of the contract was the use of credit
cards issued to a District resident, the bills for which were
sent to a District address, and that the parties contemplated future contacts with the District as a condition of
performance, the defendant had purposefully availed herself of
the benefits of District law. Id. Therefore, where the district
court found only one contact, and concluded that the single
contact was insufficient to establish personal jurisdiction, the
Court of Appeals found multiple contacts, rendering personal
jurisdiction appropriate. In either instance, the holdings of
Helmer, both at the district court level and the Court of
Appeals, are not conducive to the furtherance of Plaintiff's
argument that one contact is sufficient to establish "transacting
Second, in Reiman, the court never reached a determination
as to whether the contacts between the non-resident defendant and
the resident plaintiff were sufficient to permit the court's
exercise of personal jurisdiction due to the existence of several
disputed material facts. Reiman, 614 F. Supp. at 258-59.
Instead, the court had merely noted in dicta the principle that
"under certain circumstances, even a single act may be
sufficient" to implicate § 13-423(a)(1). Id. at 257. Therefore,
Reiman is not substantively applicable to this case, and
therefore is not persuasive.
Furthermore, in neither Helmer nor Reiman did the court
cite as authority for this proposition a case in which personal
jurisdiction was actually found based on a single business
transaction. In fact, the primary authority for this proposition
in Reiman is Bueno v. La Compania Peruana de Radiodifusion,
S.A., 375 A.2d 6, 9 (D.C. 1977). Id. at 257. In Bueno, the
only contact the defendant had with the District was a delivery
of a duplicate contract, by courier, at the request and expense
of the plaintiff. Bueno, 375 A.2d at 9. While the court
recognized that "under certain circumstances, a single act may be
sufficient to constitute `transacting business,'" it refused to
extend personal jurisdiction under the facts of the case. Id.
(citing Cent. Ins. Agency, Co. v. Fin. Credit Corp., 222 F. Supp. 627 (D.D.C.
1963)). In Central Insurance Agency, the court simply noted
that a single act of transacting business is sufficient to
constitute "doing business" under the District of Columbia's
service of foreign corporations statute. Cent. Ins. Agency,
Co., 222 F. Supp. at 628. However, Central Insurance Agency
makes no mention of whether a single act qualifies as
"transacting business" under the District of Columbia's long-arm
personal jurisdiction statute.
Third, in Schwartz, the defendant was a Japanese-national
who had never set foot in the District of Columbia, and who had
no role in the negotiation, solicitation, or development of a
contract that was the subject of the suit. Schwartz,
938 F. Supp. at 5. The court in Schwartz noted that
[a]lthough a defendant's contact with a forum
resident will not automatically establish minimum
contacts sufficient to confer personal jurisdiction,
factors including "prior negotiations and
contemplated future consequences, along with the
terms of the contract and the parties' actual course
of dealing" are relevant to the determination.
Id. at 6 (quoting Reiman, 614 F. Supp. at 258). The sole
contact the defendant had with the District was that he co-signed
the assignment of the contract. Id. at 5. This act, combined
with defendant's "contemplat[ion] [of] future consequences in
addition to the parties' course of dealing constitutes
transacting business in this forum." Id. at 6.
The case at bar differs in three distinct ways from Schwartz.
First, in Schwartz, the defendant had a contract with the
Smithsonian Institution's National Museum of American Art, a
District of Columbia resident. Id. at 3. In this case, neither
Plaintiff, BCI, Trinity, nor Kalil are residents of the District.
Second, the Brokerage Agreement, unlike the contract in
Schwartz, was not negotiated or executed in the District, nor
were the laws of the District explicitly stated as being controlling. Id. at 6. The Brokerage Agreement does not
specify which state's laws would govern the agreement, but since
the Brokerage Agreement was drafted in Arizona and executed in
Pennsylvania, the laws of the District do not appear to be the
laws that would govern the agreement without being explicitly
stated. Third, while arguably the Brokerage Agreement
contemplated performance in the District as part of Kalil's "best
efforts . . . to find a satisfactory and qualified buyer" for the
Station, Frank Kalil Aff., Ex. A (Brokerage Agreement),
Plaintiff's and Kalil's course of dealing was far removed from
the District. In short, while the single contact the defendant in
Schwartz had with the District had "such a substantial
connection with the District such that the exercise of personal
jurisdiction is permissible," Schwartz, 938 F. Supp. at 6, the
same cannot be said for Kalil. See also Dooley,
786 F. Supp. at 75 n. 8 (noting that "[t]he Supreme Court has stated that even a
single act within the district can support jurisdiction when it
creates a substantial connection with the forum.") (citing
Burger King v. Rudzewicz, 471 U.S. 462, 475 n. 18,
105 S. Ct. 2174, 2184 n. 18, 85 L. Ed. 2d 528 (1985)).
Furthermore, while"[e]ven a small amount of in-jurisdiction
business activity is generally enough to permit the conclusion
that a nonresident defendant has transacted business here,"
Shoppers Food Warehouse v. Moreno, 746 A.2d 320, 331 (D.C.
2000), it is important to remember that "[t]he Court must resolve
personal jurisdiction issues `on a case-by-case basis.'"
Cellutech, Inc. v. Centennial Cellular Corp., 871 F. Supp. 46,
49 (D.D.C. 1994) (quoting Envtl. Research Int'l, Inc. v.
Lockwood Greene Eng'rs, Inc., 355 A.2d 808, 811 (D.C. 1976)).
Here, when considering all the facts of this case, the single
contact of a potential buyer in the District is not significant
enough for this Court to assert personal jurisdiction over Kalil.
Unlike in Shoppers Food Warehouse, where the District of
Columbia Court of Appeals found that the appellant grocery food chain's extensive and repeated
advertisement in a major District of Columbia newspaper to
solicit District residents to travel to its stores in Virginia
and Maryland qualified as transacting business in the District,
Shoppers Food Warehouse, 746 A.2d at 336, Kalil made a single
phone call to Mr. Herwitz. Pl.'s Opp'n, Ex. 2 (Apr. 16, 2004
Update) at 6. The contact was isolated and brief. Furthermore, in
Shoppers Food Warehouse, the court noted that the purpose of
the District of Columbia's long-arm statute was "to afford
District residents broad access to our courts limited only by
due process considerations." Id. at 337 (emphasis added).
Therefore, when considering all the facts, including that none of
the parties, not even Plaintiff, are District of Columbia
residents; that the contact relied upon by Plaintiff was an
isolated and brief incident; and that Kalil had no substantial
relationship with the District, this Court refuses to exert
personal jurisdiction over Kalil based on its solitary contact
with an employee of Fox Television.
2. Telephone Calls and Mailings into the District Constitute
"Transacting Any Business"
Plaintiff's second argument for why this Court should exercise
personal jurisdiction over Kalil is that telephone calls and
mailings Kalil made into the District in connection with its
attempt to receive the commission it contends it is due
constituted "transacting business" under § 13-423(a)(1). This
argument fails for three reasons. First, the principal case on
which Plaintiff relies is readily distinguishable from the case
at bar. Second, the phone calls and mailings Kalil made into the
District do not constitute transacting business under the
statute. Third, Plaintiff's unilateral actions of employing
counsel in the District of Columbia cannot confer personal
jurisdiction on Kalil. First, the primary case Plaintiff cites in support of this
argument is Dooley v. United Technologies Corp.,
786 F. Supp. 65 (D.D.C. 1992). Pl.'s Opp'n at 14; Pl.'s Surreply at 9. In
Dooley, the plaintiff was alleging that defendants were engaged
in an elaborate conspiracy to sell armed helicopters to Saudi
Arabia. Dooley, 786 F. Supp. at 69-70. To support a finding of
personal jurisdiction under the "transacting business" clause of
the District of Columbia long-arm statute over one set of the
defendants, the "UTC Corporate Defendants," the plaintiff alleged
that the UTC Corporate Defendants owned and maintained business
and residential property in the District; that representatives of
the UTC Corporate Defendants made numerous trips to the District
to further the success of the alleged conspiracy; that the UTC
Corporate Defendants sought out a Washington, D.C. corporation to
aid them in laundering the bribes passed to the Saudis; and that
the UTC Corporate Defendants "made countless phone calls and
mailings into the District" directly related to the conspiracy.
Id. at 72 (emphasis added). While the court notes "that
telephone calls and mailings to Washington, D.C. constitute
`transacting business' under section 13-423(a)(1)," id., as
noted above the court had a plethora of other contacts with the
District, aside from the phone calls and mailings allegedly made
by the UTC Corporate Defendants, on which to base its finding
that the UTC Corporate Defendants were transacting business in
the District. Id. Furthermore, the court had "countless" phone
calls and mailings on which to rely, if phone calls and mailings
had been the only business transactions the UTC Corporate
Defendants had with the District. Id.
In this case, however, unlike the UTC Corporate Defendants in
Dooley, Kalil owns no property in the District; it never went
to the District to further the transaction; and it never
contacted or used a third-party District corporation in
connection with the transaction. Def's Reply at 8. In addition, the phone calls and mailings Plaintiff
relies on are far from "countless." Plaintiff points to only
three specific contacts Kalil had with BCI lawyer Barry Wood in
the District of Columbia to establish that Kalil transacted
business. The first was the faxed invoice for $960,000; the
second was the demand letter from Mr. Ryan to Mr. Wood; and the
third was Kalil's initiation of settlement discussions with Mr.
Wood. Pl.'s Opp'n at 15. In contrast to the "countless" phone
calls and mailings in Dooley, these contacts are minimal at
Second, Plaintiff's argument that Kalil's correspondence with
BCI's attorney in Washington, D.C. constitutes "transacting
business" is without merit. In COMSAT, where defendant's
"limited fax and telephone communication" with plaintiff's
office in Washington, D.C., COMSAT, 900 F. Supp. at 523
(emphasis added), including some communications initiated by
defendant, were determined by the court to be insufficient to
establish that defendant "purposefully availed itself of the
privilege of transacting business in the District of Columbia,"
id., the court relied on the fact that defendant "was required
to communicate with COMSAT at its offices in the District of
Columbia regarding invoices has not been shown to arise out of
any desire of [defendant] to do business with COMSAT in
Washington, D.C." Id. COMSAT is analogous to the case at bar.
Here, Kalil had limited contact with BCI's attorney in the
District of Columbia in order to secure payment it believed due
under the Brokerage Agreement. The contact arose out a desire to
be paid for services rendered, "not out of any desire . . . to do
business . . . in the District of Columbia." Id.
Similarly, in Cellutech, the court held that "[t]he
non-resident defendants' long-distance contract negotiations with
a non-resident plaintiff's attorney who happened to have offices
in the District . . . [is] not [a] significant enough contact
to have caused the defendants reasonably to anticipate being haled into court here." Cellutech,
871 F. Supp. at 50. Cellutech is particularly analogous as both
defendants and plaintiff were non-residents and negotiations were
handled though plaintiff's attorney in the District. This Court
finds persuasive the analogy of the negotiation of a contract in
Cellutech to the settlement negotiations in this case.
Furthermore, this Circuit has determined that a "single
responsive mailing cannot constitute the `meaningful' contact or
`substantial connection' between the defendant and the forum
state" that is required to satisfy due process. United States v.
Ferrara, 54 F.3d 825, 831 (D.C. Cir. 1995) (quoting Burger
King, 471 U.S. at 472, 105 S. Ct. at 2181 and McGee v. Int'l
Life Ins. Co., 355 U.S. 220, 223, 78 S. Ct. 199, 201,
2 L. Ed. 2d 223 (1957)). Therefore, Kalil's act of faxing the $960,000
invoice to Mr. Wood, which Mr. Wood affirms in his Declaration
was done in response to his indication that he had no invoice on
which to determine Kalil's commission, Wood Decl. I ¶ 12, cannot
qualify as transacting business under the statute.
Third, Kalil argues that these contacts were a result of a
request by Mr. Wood or by virtue of Plaintiff's unilateral
decision to hire counsel in Washington, D.C., neither of which,
it is contended, can confer personal jurisdiction over Kalil.
Def's Reply at 9. "The minimum contacts analysis embodies the
basic notion that the defendant's own action must be such as to
put it on notice of the possibility of defending itself in the
forum state." COMSAT, 900 F. Supp. at 520-21 (emphasis added).
Kalil did not solicit the Brokerage Agreement in Washington,
D.C., Brunson Decl. ¶ 4; the Brokerage Agreement was not
negotiated, in whole or in part, in Washington, D.C., Frank Kalil
Aff., ¶ 22; the Brokerage Agreement was not executed in
Washington, D.C., Frank Kalil Aff., Ex. A (Brokerage Agreement);
and Kalil never traveled to Washington, D.C. in order to further
the Brokerage Agreement, Frank Kalil Aff., ¶ 24. Plaintiff argues that by the terms of the Brokerage Agreement all
correspondence should have been directed to BCI at its office in
Philadelphia, Pl.'s Surreply at 9; Frank Kalil Aff., Ex. 1
(Brokerage Agreement), therefore when Kalil "unilaterally
determined to send its invoice solely" to Mr. Wood in the
District of Columbia, it removed these contacts from the realm of
Plaintiff's unilateral activity to have counsel in the District.
Pl.'s Surreply at 8, 9. However, it was a logical decision for
Kalil to direct its inquiries about payment to Mr. Wood in the
District rather than to BCI's offices in Philadelphia, as Mr.
Wood negotiated and finalized the Purchase Agreement that
resulted in the sale of BCI to Trinity. See Wood Decl. I ¶ 9
(indicating that he was involved in the development of the
Purchase Agreement and its finalization). Furthermore, Plaintiff
admits in her Declaration that she "retained counsel in the
District of Columbia to represent BCI in all matters related to
the Brokerage Agreement and sale of BCI." Brunson Decl. ¶ 5
(emphasis added). As stated above, the invoice was sent in
response to Mr. Wood's indication that he had no invoice by which
he could determine the amount due to Kalil. Wood Decl. I ¶ 12.
While Kalil initiated that first call to Mr. Wood, Kalil sent Mr.
Wood additional materials, particularly the invoice, in response
to Mr. Wood's requests. Wood Decl. I ¶¶ 12, 13. Had Philadelphia
been a more appropriate place to direct correspondence regarding
Kalil's attempt to be paid, Mr. Wood, as BCI's transactional
attorney, presumably would have specified as such. Therefore,
Plaintiff's argument that the contacts with Mr. Wood constituted
transacting business in the District fails.
3. Communication and Meetings with FCC and SEC Related to
Kalil's General Business are a Basis for this Court's
Plaintiff also argues that Kalil "often comes to the District
of Columbia for meetings in the course of its business and to access filings with the Federal
Communications Commissions and possibly the Securities and
Exchanges Commission relevant to its general business." Pl.'s
Opp'n at 6, 7. Kalil argues that these alleged contacts with the
District cannot bear on the existence of personal jurisdiction
because the "government contacts exception precludes the
assertion of personal jurisdiction over a non-resident whose only
contact with the District of Columbia is with Congress or a
federal agency." Dooley, 786 F. Supp. at 75; Def's Reply at 11.
Indeed, the court in Cellutech explained that "[t]he District
of Columbia's unique character as the home of the federal
government requires this exception in order to maintain
unobstructed access to the instrumentalities of the federal
government." Cellutech, 871 F. Supp. at 50; Def's Reply at 11.
The government contact exception has also been accepted by the
Court of Appeals. See Ferrara, 54 F.3d at 831 ("[t]o permit our
local courts to assert personal jurisdiction over nonresidents
whose sole contact with the District consists of dealing with a
federal instrumentality not only would pose a threat to free
public participation in government, but also would threaten to
convert the District of Columbia into a national judicial
forum.") (quoting Envt'l Research Int'l, Inc.,
355 A.2d at 813). In addition, the allegation is merely a conclusory
statement, which cannot "constitute the prima facie showing
necessary to carry the burden of establishing personal
jurisdiction." First Chi. Int'l, 836 F.2d at 1378. Plaintiff's
reliance on Kalil's alleged contacts with the FCC and the SEC
therefore do not constitute transacting business.
4. Kalil Solicits Business in the District
Plaintiff's final argument that Kalil transacted business in
the District is that Kalil actively solicits business in the
District. This argument is made in response to an assertion made by Frank Kalil in his Affidavit stating that "Kalil does not
advertise or solicit any business in the District of Columbia."
Frank Kalil Aff. ¶ 21; Pl.'s Opp'n at 15. Plaintiff relies on a
contact made by Fred Kalil, a Kalil employee, on November 29,
2004, to Frederick J. Ryan, Jr., President and Chief Operating
Officer of Allbritton Communications Company, at his office and
Allbritton headquarters at 808 17th Street, NW, Washington, D.C.
as support for this argument. Pl.'s Opp'n at 15; Fritz Aff.
In Shoppers Food Warehouse, the business transaction in
question consisted of appellant's "extensive advertising activity
in a major District of Columbia newspaper." Shoppers Food
Warehouse, 746 A.2d at 336. The court determined that this
advertising "deliberately and directly solicited District
residents as customers for its nearby Maryland and Virginia
stores and thus [appellant] transacted business in the District."
In contrast, the contact made by Kalil to Mr. Ryan of
Allbritton consisted solely of a single voicemail message that,
incidentally, was never returned. Fritz Aff.; Def's Reply at 8.
This single voicemail is a far cry from the "extensive
advertising activity . . . deliberately solicit[ing] District
residents" that was present in Shoppers Food Warehouse. In
addition, this contact was made well after this suit was filed.
See Fritz Aff. This Court can find personal jurisdiction based
only on the acts that had occurred at the time the Complaint was
filed, not those acts occurring after Plaintiff filed her
Complaint. See McFarlane v. Esquire Magazine, 74 F.3d 1296,
1300-01 (D.C. Cir. 1996) (refusing to find personal jurisdiction
based on an article appearing in the Washington Post after
plaintiff had filed his complaint); see also Klinghoffer v.
S.N.C. Achille Lauro, 937 F.2d 44, 52 (2d Cir. 1991) (noting
that personal jurisdiction is based on "defendant's contacts with
the forum state at the time the lawsuit was filed"); Asarco,
Inc. v. Glenara, Ltd., 912 F.2d 784, 787 n. 1 (5th Cir. 1990) (stating
that the "relevant time for determining jurisdiction is the
filing of the complaint"). Therefore, whether or not Kalil was
transacting business when it left the voicemail for Mr. Ryan is
not relevant to this Court's determination of whether Kalil was
transacting business in the District at the time the Complaint
Each of Plaintiff's four bases for establishing Kalil
transacted business in the District under § 13-423(a)(1) are
without merit. As a result this Court finds that Kalil did not
transact business in the District of Columbia, and consequently
refuses to exercise personal jurisdiction over Defendant Kalil.
C. Constitutional Due Process
The final prong of the analysis this Court must address in
determining whether it has personal jurisdiction over Kalil is
whether exercising jurisdiction over Kalil will comport with due
process. While this Court has already determined that Plaintiff's
claim did not arise from Kalil's contacts with the District and
that Kalil has not transacted business in the District,
Plaintiff's arguments that an exercise of personal jurisdiction
over Kalil would comport with due process analysis will be
As noted above, the transacting business clause of the District
of Columbia long-arm statute has generally been interpreted
broadly and is considered to be "co-extensive with the
Constitutions due process limits." First Chi. Int'l,
836 F.2d at 1377. "The constitutional touchstone of the due process
determination is `whether the defendant purposefully established
minimum contacts in the forum state.'" COMSAT,
900 F. Supp. at 520 (quoting Asahi Metal Indust. Co. v. Superior Court of
California, Solano County, 480 U.S. 102, 108-09, 107 S. Ct. 1026, 1030, 94 L. Ed. 2d 92 (1987)). The due process analysis
consists of three parts: the defendant must (1) "purposefully
avail itself of the privilege of conducting activities within
the forum State, thus invoking the benefits and protections of
its laws," Hanson v. Denckla, 357 U.S. 235, 253,
78 S. Ct. 1228, 1240, 2 L. Ed. 2d 1283 (1958) and (2) "reasonably
anticipate being haled into court" in the forum state,
World-Wide Volkswagen Corp. v. Wooden, 444 U.S. 286, 297,
100 S. Ct. 559, 567, 62 L. Ed. 2d 490 (1980); finally (3) the "suit
[cannot] offend traditional notions of fair play and substantial
justice," Int'l Shoe Co., 326 U.S. at 316, 66 S. Ct. at 158. In
addition, the "minimum contacts must come about by an action of
the defendant purposefully directed toward the forum state."
Asahi, 480 U.S. at 112, 107 S. Ct. at 1032 (emphasis in
original). Each of these three aspects of the minimum contacts
test will be dealt with below.
1. Purposeful Availment and Foreseeability of Suit in the
Plaintiff states in her Opposition that "[t]here can be no
question but that Kalil `purposefully availed' itself of the
privileges of conducting business in the District." Pl.'s Opp'n
at 17. The only support for this conclusory statement is that
Kalil contacted Mr. Herwitz of Fox Television on November, 25,
2003, Pl.'s Opp'n at 17; Id., Ex. 2 at 6 (Apr. 16, 2004
Update), and that Kalil directed correspondence to Mr. Wood in
the District. Id. at 17. By virtue of these contacts, Plaintiff
contends that Kalil "should have `reasonably foreseen' the
possibility of its being haled into court" in the District. Id.
Kalil indicates that the sole purpose of the contact with Mr.
Herwitz was "to gauge the general interest of Fox in obtaining
additional properties and was not in furtherance of the sale of
the Station." Def's Reply at 13. However, given that this is a
motion to dismiss, all factual disputes must be resolved in favor of the plaintiff. Crane,
894 F.2d at 456. Therefore, this Court will accept Plaintiff's
allegation that the contact with Fox was in furtherance of the
Brokerage Agreement and constituted performance in the District.
Accepting Plaintiff's statement that the contact was made in
furtherance of the Brokerage Agreement, however, does not relieve
the Plaintiff of her duty to prove the elements of personal
jurisdiction with non-conclusory factual statements. See First
Chi. Int'l, 836 F.2d at 1378. Merely stating that "Kalil
`purposefully availed' itself" does not make it true.
Kalil also takes issue with Plaintiff's assertion that
correspondence with Mr. Wood regarding payment of Kalil
constitutes purposeful availment and reasonable foreseeablity on
the part of Kalil. As the court stated in Cellutech,
long-distance negotiations between a non-resident defendant and
the non-resident plaintiff's lawyer, who happens to be located in
the District, is "not [a] significant enough contact to have
caused defendant reasonably to anticipate being haled into
court." Cellutech, 871 F. Supp. at 50. In addition, "[i]t is
mere fortuity, over which defendant had no control and from
which defendant could derive no expectation of consequences,
that plaintiff chose Washington counsel to conduct these
negotiation." Id. at 49-50. That BCI retained Mr. Wood, a
District attorney, to conduct the negotiations and finalization
of the Purchase Agreement, and thus was the logical person to
which Kalil directed its initial inquiry into payment, was beyond
the control of Kalil. The transmittal of the invoice was in
response to Mr. Wood's indication that he had no invoice from
Kalil on which to make a determination of how much Kalil was
owed. Wood Decl. I ¶ 12. As noted above, if a single responsive
mailing cannot form the basis of a finding of "transacting
business," Ferrara, 54 F.3d at 831, then it can be inferred
that a single responsive mailing would not constitute Kalil purposefully availing itself of the laws of the District where it
would then reasonably foresee being haled into court.
2. Fair Play and Substantial Justice
In determining whether the notions of fair play and substantial
justice would be furthered by a finding of personal jurisdiction,
this Court must consider the burden to Kalil in defending the
suit in this jurisdiction; this jurisdictions interest in
adjudicating the dispute; Plaintiff's "interest in obtaining
convenient and effective relief; . . . the interstate judicial
system's interest in obtaining the most efficient resolution of
controversies; and the shared interest of the several States in
furthering fundamental substantive social policies." World-Wide
Volkswagen, 444 U.S. at 292, 100 S. Ct. at 564 (citations
Plaintiff asserts that the burden to Kalil is light, as at the
time Plaintiff filed suit Kalil's attorney, Tim Ryan, was a
member of a law firm with offices in the District and because
Kalil has subsequently "retained specific District of Columbia
counsel." Pl.'s Opp'n at 18. As Kalil states, however, Kalil's
retainer of counsel in the District does not bear on how light
the burden to Kalil is, but how heavy. Kalil contends that the
improper filing of this suit in this Court forced Kalil to hire
District counsel in order to defend itself. It is a burden Kalil
had to bear as a result of this forum choice, not one that
diminishes the burden to Kalil. Def's Reply at 16. Furthermore,
the documents, records, and witnesses Kalil would rely upon in
defending itself are all located in Arizona. Id.
Plaintiff also claims that "the central event in the case, . . .
the closing of the sale of BCI, took place in the District of
Columbia," thus resulting in this jurisdiction having an inherent
interest in the adjudication of the case. Pl.'s Opp'n at 18.
However, where the parties are both non-residents, the District's "legitimate interests in the
dispute have considerably diminished." Formica v. Cascade Candle
Co., 125 F. Supp. 2d 552, 556 (D.D.C. 2001) (quoting Asahi,
480 U.S. at 114, 107 S. Ct. at 1033). While Plaintiff asserts
that the central event of the case, the closing of the Purchase
Agreement, occurred in the District, Kalil was not a party to the
Purchase Agreement, nor was it present or invited to the closing.
Def's Reply at 16; Wood Decl. I ¶ 14; Def.'s Mem., Ex. 2
(Purchase Agreement). For this Court to assert personal
jurisdiction over Kalil based on the closing of a sale to which
it was neither a party nor present at, would hinder, not further,
the notions of fair play and substantial justice.
Plaintiff's final claim is that this Court is the only court
"capable of exercising jurisdiction over all the parties and
potential parties." Pl.'s Opp'n at 18. Thus, presumably, "the
interstate judicial system's interest in obtaining the most
efficient resolution" would be satisfied. By including the term
"potential parties" Plaintiff is referring to Trinity, a
California corporation, and SunTrust Bank, a District bank in
which money from the sale of BCI is escrowed. Pl.'s Opp'n at 18,
19. The dispute, however, arises from the Brokerage Agreement, to
which only BCI, Plaintiff, and Kalil were parties. Frank Kalil
Aff., Ex. A (Brokerage Agreement). That another court may not
have jurisdiction over SunTrust or Trinity, non-parties in this
suit, is not a concern of this Court at this juncture.*fn6
Instead, given the above-mentioned facts, the Court finds that it
would not comport with due process for it to allow Plaintiff's
suit against Kalil to progress in the District of Columbia. IV: CONCLUSION
For the reasons set forth above, Defendant Kalil's Motion to
Dismiss for lack of personal jurisdiction is granted.
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