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Exponential Biotherapies, Inc. v. Buruma

July 30, 2009

EXPONENTIAL BIOTHERAPIES, INC., PLAINTIFF,
v.
HOUTHOFF BURUMA N.V., DEFENDANT.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION

Plaintiff Exponential Biotherapies, Inc. ("EBI") has sued Houthoff Buruma N.V. ("HB"), the Netherlands law firm EBI hired to handle a corporate restructuring and financing transaction. The crux of the dispute between the parties centers on HB's subsequent representation of parties that were allegedly adverse to the transaction in which HB represented EBI. HB has moved to dismiss the case based on lack of personal jurisdiction, the applicability of a forum selection clause binding EBI to bring this suit in the Netherlands, and forum non conveniens. Before the Court are HB's motion to dismiss [Dkt. No. 5], EBI's opposition [Dkt. No. 12], and HB's reply [Dkt. No. 17], as well as EBI's motions in the alternative for jurisdictional discovery or transfer [Dkt. Nos. 13, 14], HB's opposition [Dkt. No. 16] and EBI's reply [Dkt. No. 19]. For the reasons set forth herein, the Court will dismiss this case for lack of personal jurisdiction and deny plaintiff's motions.

BACKGROUND

Plaintiff EBI is a Delaware corporation which discovers and develops compounds to treat severe inflammatory disorders. (Compl. ¶ 4.) EBI maintained its corporate headquarters and principal place of business in Washington, D.C., from 2004 to 2006, but has since moved to McLean, Virginia. (Id.) Defendant HB is a Netherlands-based law firm with its principal place of business in Amsterdam (Compl. ¶ 5) and additional offices in Europe. (Def.'s Mot. to Dismiss Pl.'s Compl. Based on Jurisdictional Issues ["Mot."] [Dkt. No. 5], Attach. 2, Decl. of Dirk Knottenbelt ["Knottenbelt Decl."] at ¶ 3.) HB is not a resident of and has never had an office in the District of Columbia or any part of the United States. (Knottenbelt Decl. at ¶ 4.) HB's attorneys are not licensed to and do not practice law anywhere in the United States*fn1 (id. at ¶ 4), however, HB may represent United States clients abroad. (Def.'s Reply in Further Supp. of Its Mot. to Dismiss ["Reply"] [Dkt. No. 17], Attach. 1, Suppl. Decl. of Dirk Knottenbelt ["Suppl. Knottenbelt Decl."] at ¶ 13; see also Pl.'s Opp'n to Def.'s Mot. to Dismiss ["Opp'n"] [Dkt. No. 12] at 18-19.) HB's website describes, in both Dutch and English, its affiliation with the American Bar Association, among other organizations, and touts the "international dimension" of its work. (Opp'n at 8 n.6.) EBI claims that HB's website also boasts an "impressive list" of "many U.S. based clients." (Id. at 18-19.)

EBI alleges that in April 2004, it "engaged [HB], without a retainer agreement, to provide legal services for a transnational financing and corporate structuring."*fn2 (Compl. ¶ 7.) EBI further asserts that Biotempt, B.V., a Dutch biotechnology corporation (Berns Decl. at ¶ 2), several other Dutch entities, and a Dutch citizen (collectively, "the Adverse Parties") were all adverse parties to the transaction. (Compl. ¶ 7.) Over the course of its engagement with EBI, HB sent to EBI's D.C. office "invoices for legal services, draft and final work product and demands for payment." and "received [from EBI's D.C. office] instruction . . . on work to be undertaken and payment for that work." (Id. at ¶¶ 4, 9-12.) In 2006, EBI received several collection notices at its D.C. office from the Netherlands and Illinois offices of Atradius Collections ("Atradius"), which HB had hired to collect legal fees.*fn3 (Id. at ¶¶ 10-11; Knottenbelt Decl. at ¶ 23.)

In June 2008, "by letter from [HB] on behalf of [one of the Adverse Parties]," EBI learned that HB had been retained by three of the Adverse Parties "to challenge the validity of parts of the corporate transaction that had been undertaken for [EBI] by [HB] in 2004." (Compl. ¶¶ 7, 13; Berns Decl. ¶¶ 25-28.) In July 2008, EBI was served with a writ of summons (the Dutch equivalent of a complaint) naming as defendants two of EBI's subsidiaries and, in its "Introduction of the Parties," EBI itself. (Berns Decl. ¶ 29; Knottenbelt Decl. ¶¶ 25-26.) According to HB, the writ merely "seeks payment of certain unpaid license fees and a declaratory judgment that [one of the Adverse Parties] properly terminated a patent license it had issued to [an EBI subsidiary]." (Knottenbelt Decl. ¶ 29.) Plaintiff claims that, by representing Adverse Parties on a claim allegedly related to its previous work for EBI, HB has committed legal malpractice and breached its fiduciary duty to EBI. (Compl. ¶¶ 17-19, 21-22.) EBI alleges that HB intended to and did disrupt EBI's worldwide financing, "dilute EBI equity", deprive EBI of "ownership and control" over technology licensed through the 2004 financing and structuring transaction, and divert all or most of EBI's "prospective licensing income stream" to the Adverse Parties. (Id. at ¶ 1; Opp'n at 2, 30.)

HB has moved to dismiss EBI's claims based on: 1) lack of personal jurisdiction, 2) the applicability of a forum selection clause binding EBI to bring this suit in the Netherlands (see supra note 2), and 3) forum non conveniens. EBI opposes HB's motion, claiming that the D.C. long-arm statute (§§ 13-423(a)(1) and (a)(4)) provides for personal jurisdiction, that no forum selection clause applies, and that D.C. is a convenient forum. EBI requests that, if this Court determines it lacks personal jurisdiction or that D.C. is an inconvenient forum, it either grant jurisdictional discovery (Pl.'s Mot. for Disc. in the Alternative, In Aid of Jurisdiction [Dkt. No. 14] ["Disc. Mot."]) or transfer EBI's claims to the District Court for the Eastern District of Virginia (Plaintiff's Motion to Transfer Case In the Alternative [Dkt. No. 13] ["Transfer Mot."]). This Court finds that HB's actions and contacts do not satisfy due process or the D.C. long-arm statute, so it lacks jurisdiction over HB. This Court also 1) denies EBI's request for jurisdictional discovery because EBI has not demonstrated that such discovery will cure the deficiencies in its jurisdictional allegations and 2) cannot transfer EBI's case to the Eastern District of Virginia because plaintiff has not shown that HB is subject to personal jurisdiction there. Therefore, this case will be dismissed for lack of personal jurisdiction.

STANDARD OF REVIEW

"The plaintiff has the burden of establishing a factual basis for the exercise of personal jurisdiction over the defendant." Crane v. New York Zoological Society, 894 F.2d 454, 456 (D.C. Cir. 1990) (citing Reuber v. United States, 750 F.2d 1039, 1052 (D.C. Cir. 1984)), and it "cannot rely on conclusory allegations." D'Onofrio v. SFX Sports Group, Inc., 534 F. Supp. 2d 86, 89 (D.D.C. 2008). "When considering personal jurisdiction, the [c]court need not treat all of the plaintiff's allegations as true. Instead, the court 'may receive and weigh affidavits and other relevant matter to assist in determining the jurisdictional facts.'" Id. at 90 (citations omitted); see also Land v. Dollar, 330 U.S. 731, 735 n.4 (1947). However, "factual discrepancies in the record must be resolved in favor of the plaintiff." New York Zoological, 894 F.2d at 456.

ANALYSIS

I. Personal Jurisdiction

"In a diversity case, the federal district court's personal jurisdiction over the defendant is coextensive with that of a District of Columbia court." Helmer v. Dolestskaya, 393 F.3d 201, 205 (D.C. Cir. 2004). Personal jurisdiction has two variations: "(1) general, 'all purpose' adjudicatory authority to entertain a suit against a defendant without regard to the claim's relationship vel non to the defendant's forum-linked activity, and (2) specific jurisdiction to entertain controversies based on acts of a defendant that touch and concern the forum." D'Onofrio, 534 F. Supp. 2d at 90 (quoting Kopff v. Battaglia, 425 F. Supp. 2d 76, 81 (D.D.C. 2006)). Here, EBI does not claim that HB is subject to this Court's general jurisdiction. Specific jurisdiction requires a court to find that "(1) jurisdiction over the defendant [is] authorized by the forum's long-arm statute, here D.C. Code § 13-423; and (2) the exercise of that jurisdiction [satisfies] the federal requirement of constitutional due process." Id.

EBI claims that §§ 13-423(a)(1) and (a)(4) authorize personal jurisdiction over HB. (Opp'n at 18-26.) In relevant part, the D.C. long-arm statute provides:

A District of Columbia court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for ...


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