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Urban Institute v. FINCON Services

February 1, 2010

THE URBAN INSTITUTE, PLAINTIFF,
v.
FINCON SERVICES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge

MEMORANDUM OPINION

The Urban Institute ("Institute") brings this action against FINCON Services, Shahid Yusaf, and Global Investment Advisors d/b/a FINCON Service Inc. (collectively "defendants"). The case arises out of FINCON's accusation, made in a suit brought in Pakistan, that the Institute infringed on FINCON's copyright in creating its Financial Management Information System ("FMIS") software. The Institute seeks a declaration that it owns all right, title, and interest in the FMIS copyright and brings claims of violation of the Federal Trademark Act, 15 U.S.C. § 1125(a) ("Lanham Act"), tortious interference with contractual relations, abuse of process, trade libel, and unfair competition. Before the Court is defendants' motion to dismiss [#5], in which defendants primarily argue that this Court does not have personal jurisdiction over them. Upon consideration of the motion, the opposition thereto, and the record of this case, the Court concludes that the motion shall be granted.

I. BACKGROUND

FINCON Services ("FINCON") is a corporation that does business in several countries, including the United States, Canada, and Pakistan. FINCON's office in the United States is located in California. Shahid Yusaf is the President of FINCON. According to defendants, Global Investment Advisors, Inc. ("GIA") is a "capital markets advisory firm" with its headquarters in California, and its President is Roger Nye. Defs.' Mot. to Dismiss at 5-6. The Institute's complaint alleges that "the acts and omissions forming the basis of this Complaint have . . . been committed, authorized, directed, and/or approved by each of the Defendants, acting as agents, alter egos and proxies of one another." Compl. ¶ 18.*fn1

The Institute is a nonprofit research organization headquartered in Washington, D.C. In 2006, the U.S. Agency for International Development ("USAID") awarded a contract to the Institute for a project called "Districts That Work" ("DTW project"). This project involved "the development of skills and tools for effective governance in thirty selected districts in Pakistan." Id. ¶ 30. In order to complete the DTW project, it was necessary to develop "management information software" that is "used to facilitate the collection, processing, storage, and dissemination of data." Id. ¶ 22.

According to the complaint, the Institute engaged in discussion with defendants about the possibility of contracting with them for the creation of management information software for the DTW project. On May 5, 2008, however, the Institute instead hired an individual, Ghulam Mustafa Kahn, to develop software for the DTW project as an independent consultant. Kahn, an expert in management information systems, had previously worked for FINCON and was again employed by FINCON just before agreeing to assist the Institute with the DTW project.

Kahn and two assistants, working in Pakistan, created software for the Institute referred to by the parties as the Financial Management Information System ("FMIS"). The Institute registered FMIS with the U.S. Copyright Office as United States Copyright Registration No. TX-6-907-252.*fn2

In February 2009, FINCON sent a letter to the Institute maintaining that Khan copied features of its software in creating FMIS, demanding that the Institute stop using FMIS, and seeking five million dollars in damages for "contravention of the Intellectual Property Rights" of defendants. Id. ¶ 50. Later that month, FINCON filed a copyright infringement lawsuit against the Institute and Kahn in the District Court of Islamabad, Pakistan. The Institute asserts that FMIS "contains new and original features developed independently and exclusively by Kahn" and his two assistants. Id. ¶ 41. The Institute contends that FINCON's allegations are "fabricated, frivolous and, on information and belief, leveled against [the Institute] for the ulterior purpose of coercing [the Institute] and USAID into contractual relationships with Defendants, damaging the reputation of [the Institute] and USAID, and harming the image of USAID in the United States and Pakistan." Id. ¶ 53.

The Institute also alleges that defendants anonymously provided false information regarding the alleged copyright infringement to a Pakistani newspaper and that they "instigated a baseless criminal investigation against Khan for the purpose of punishing Khan" for working for the Institute. Id. ¶ 64.*fn3

The Institute's complaint seeks a declaration that it is the "sole and exclusive owner of U.S. Copyright Registration No. TX 6-907-252" (Count I). Id. ¶ 70. It also brings claims of false representation and false designation of origin under the Lanham Act (Count II), tortious interference with contractual relations (Count III), abuse of process (Count IV), trade libel (Count V), and common law unfair competition (Count VI).

II. ANALYSIS

Defendants seek dismissal of this action because, they argue, the Court may not exercise personal jurisdiction over them.*fn4 Rule 12(b)(2) of the Federal Rules of Civil Procedure provides that a court may dismiss a complaint on this ground.

A. Law of Personal Jurisdiction

The plaintiff bears the burden of making a prima facie showing that a court has personal jurisdiction over the defendant. Naegele v. Albers, 355 F. Supp. 2d 129, 136 (D.D.C. 2005) (citing Second Amendment Found. v. U.S. Conference of Mayors, 274 F.3d 521, 524 (D.C. Cir. 2001)). To make such a showing, the plaintiff is not required to adduce evidence that meets the standards of admissibility reserved for summary judgment and trial; rather, she may rest her arguments on the pleadings, "bolstered by such affidavits and other written materials as [she] can otherwise obtain." Mwani v. bin Laden, 417 F.3d 1, 7 (D.C. Cir. 2005).*fn5 In determining whether personal jurisdiction exists, the court should resolve factual disputes in the plaintiff's favor, Helmer v. Doletskaya, 393 F.3d 201, 209 (D.C. Cir. 2004) (citing Reuber v. United ...


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