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Adrian Plesha v. James Ferguson

January 20, 2011


The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge


Plaintiff Adrian Plesha ("Plesha"), a lobbyist, filed this action seeking compensation for services rendered to Defendants James Ferguson, J.G. Ferguson & Associates, LLC, and Jim G. Ferguson, Inc. Plesha's sole remaining claim is for breach of written contract.*fn1 Presently pending before the Court is Defendant Jim G. Ferguson, Inc.'s [26] Motion to Dismiss for Lack of Personal Jurisdiction. The Court set a discovery schedule on August 30, 2010. However, on October 19, 2010, the Court granted the parties' consent motion to stay discovery pending the resolution of the motion to dismiss. For the reasons explained below, the Court shall deny without prejudice Defendant Jim G. Ferguson, Inc.'s motion to dismiss for lack of personal jurisdiction.


Plaintiff Adrian Plesha is a lobbyist whose principal place of business is in Washington, D.C. See Aff. of Adrian Plesha in Supp. of Opp'n to Mot. to Dismiss ("Plesha Aff.") ¶ 2. Defendant Jim G. Ferguson, Inc. ("Ferguson Inc.") is an Illinois corporation that is wholly owned by its president, James G. Ferguson III ("Ferguson III"). See Aff. in Supp. of Jim G. Ferguson Inc.'s Mot. to Dismiss ("Ferguson Aff.") ¶¶ 2-3; Plesha Aff. ¶ 5. Ferguson III's son, Defendant James Ferguson ("Ferguson IV"), owns and operates Defendant J.G. Ferguson & Associates, LLC ("Ferguson LLC"). Ferguson Aff. ¶ 6; Plesha Aff. ¶ 4.

On February 28, 2007, Plesha signed a contract with Ferguson LLC*fn2 to provide professional services relating to the FY 2007 and FY 2008 Department of Defense Appropriations bills. See Compl., Ex. A ("Agreement for Professional Services"). Specifically, Plesha was engaged:

a) to continue providing services regarding the Sphericall technology program within the Army Reserve appropriated within the FY 2007 Defense Appropriations Bill.

b) to assist with initiating a research, development, testing and evaluation program for development of the Jim G. Ferguson, Inc. cargo airship program in the FY 2008 Defense Appropriations Bill.

Compl., Ex. A ¶ 1. Ferguson Inc. was not a party to the written contract. However, Plesha claims that Ferguson LLC was acting as the agent of Ferguson Inc. See Compl. ¶ 40; Plesha Aff. ¶ 6.

Under the contract, Ferguson LLC agreed to pay Plesha $240,000 in fees plus reimbursement of expenses for the first year of services beginning March 1, 2007, with an automatic renewal on a month-to-month basis for a second year ending on February 28, 2009. See Compl., Ex. A ¶¶ 2-5; Compl. ¶¶ 10, 12. Plesha alleges that he performed the services under the contract, securing a $1.6 million appropriation and a $2.4 million appropriation. Compl. ¶ 15. Plesha alleges that Ferguson LLC ratified the contract in writing and continued to request Plesha's services and incur related expenses at various times during the contractual period. Id.

¶¶ 12-13. Plesha alleges that beginning on approximately April 1, 2007, Ferguson LLC failed to make timely payments under the contract and that the total amount of compensation owed under the contract has not been paid in full. Id. ¶ 16. Plesha contends that this failure to pay constituted a material breach of the contract. Id. ¶ 18. Plesha seeks $262,500 in damages, preand post-judgment interest, attorney's fees, court costs, and any additional relief.


Defendant Jim G. Ferguson, Inc. has filed a motion to dismiss for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). The plaintiff bears the burden of establishing a factual basis for asserting personal jurisdiction over a defendant. See Crane v. N.Y. Zoological Soc'y, 894 F.2d 454, 456 (D.C. Cir. 1990). "[T]he general rule is that a plaintiff must make a prima facie showing of the pertinent jurisdictional facts." First Chi. Int'l v. United Exchange Co., 836 F.2d 1375, 1378 (D.C. Cir. 1988). "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.'" Urban Inst. v. FINCON Servs., 681 F. Supp. 2d 41, 44 (D.D.C. 2010) (quoting Mwani v. bin Laden, 417 F.3d 1, 7 (D.C. Cir. 2005)) (alteration in original). However, the plaintiff "cannot rest on bare allegations or conclusory statements and must allege specific facts connecting each defendant with the forum." GTE New Media Servs., Inc. v. Ameritech Corp., 21 F. Supp. 2d 27, 36 (D.D.C. 1998); see also Second Amendment Found. v. U.S. Conference of Mayors, 274 F.3d 521, 524 (D.C. Cir. 2001) (same). The Court need not treat all of a plaintiff's allegations as true; rather, the Court "may receive and weigh affidavits and any other relevant matter to assist it in determining the jurisdictional facts." Exponential Biotherapies, Inc. v. Houthoff Buruma N.V.,638 F. Supp. 2d 1, 6 (D.D.C. 2009) (citation omitted). However, any factual discrepancies with regard to the existence of personal jurisdiction must be resolved in favor of the plaintiff. Helmer v. Doletskaya, 393 F.3d 201, 209 (D.C. Cir. 2004); Crane, 894 F.2d at 456.


Ferguson Inc. moves to dismiss the claim against it for lack of personal jurisdiction, arguing that it has no contacts with the District of Columbia. The parties agree that jurisdiction, if it exists, must be based on D.C. Code § 13-423(a)(1), which enables D.C. courts to "exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person's . . . transacting any business in the District of Columbia." D.C. Code § 13-423(a)(1). D.C. courts have held that jurisdiction exists under this section when a party contracts with a professional to perform services in the District of Columbia. See Digital Broadcast Corp. v. Rosenman & Colin, LLP, 847 A.2d 384, 390-91 (D.C. 2004); Fisher v. Bander, ...

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