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Jia Di Feng v. See-Lee Lim

May 12, 2011


The opinion of the court was delivered by: James E. Boasberg United States District Judge


Plaintiff Jia Di Feng alleges that he paid Defendant See-Lee Lim, who worked as an Allstate Insurance Company agent, $10,000 to help him obtain a green card. Lim took the money, but did nothing to assist him with his immigration status. Unable to recover his money, Plaintiff filed suit against Lim and Allstate in D.C. Superior Court on June 8, 2010, alleging claims of fraudulent misrepresentation, breach of contract, negligent training and supervision, gross negligence, unlawful trade practices, and a violation of the D.C. Consumer Protection Procedures Act. In July 2010, Allstate removed this case to federal court and filed a Motion to Dismiss. Lim separately moved to dismiss. Now before the Court are Defendants' Motions to Dismiss for lack of personal jurisdiction and failure to state a claim.*fn1


Plaintiff is a D.C. resident and an immigrant to the United States. Compl. at ¶¶ 1, 22. He is also an Allstate client who has, since about 2005, purchased a variety of insurance policies from his Allstate agent and one-time friend, Defendant Lim. Id. at ¶¶ 4-5. Plaintiff alleges that on June 18, 2007, Lim approached him with a proposal -- in exchange for $30,000, she would help Plaintiff become a legal resident of the United States. Id. at ¶¶ 6, 8. Plaintiff met with Lim and a man he was told was an attorney. Id. at ¶ 10. Plaintiff alleges that he was told this attorney knew someone in the Baltimore Immigration Office who could expedite Plaintiff's immigration matter. Id. Plaintiff further alleges that Lim requested a $10,000 down payment, which she promised to return to him if she could not successfully help him obtain a green card. Id. at ¶¶ 8, 11. Plaintiff states that he paid Lim $5,200 in cash and $4,800 by check in exchange for her assistance. Id. at ¶ 9.

Plaintiff complains that Lim intentionally misled him about what she could and would do to help him. Id. at ¶ 20. First, Plaintiff alleges that the attorney he was told would be assisting him with his immigration matter had in fact been disbarred. Id. at ¶¶ 15, 20. Next, Plaintiff alleges that Lim misrepresented her abilities to help Plaintiff with his immigration status when she was in fact neither an attorney nor "an accredited representative [of] the INS." Id. at ¶¶ 15, 18. Finally, Plaintiff alleges that Lim took his money but never did anything to help him, and now she refuses to refund him his money. Id. at ¶¶ 12, 17.

Plaintiff states that he trusted Lim to help him in part because of their friendship, but also because she is a licensed insurance agent. Id. at ¶¶ 11, 19. Moreover, Plaintiff alleges that he trusted the name "Allstate" -- the company that Plaintiff alleges is Lim's employer. Id. at ¶¶ 3, 34. Lim's actions, Plaintiff claims, represent a failure of Allstate to properly train and supervise its agents. Id. at ¶¶ 27-28.

Plaintiff pleads each of five counts against both Lim and Allstate -- fraudulent misrepresentation, breach of contract, negligence (negligent training and supervision against Allstate and gross negligence against Lim), and two counts of unlawful trade practices in violation of the D.C. Consumer Protections Procedures Act -- and requests more than $1,010,000 in damages. Defendant Lim filed her answer in D.C. Superior Court on June 29, 2010.

On July 8, 2010, Allstate removed this case to federal court. Plaintiff is a citizen of D.C.; Lim is a citizen of Virginia; and Allstate, an Illinois Corporation with its principal place of business in Northbrook, Illinois, is a citizen of Illinois. This Court therefore has diversity jurisdiction over this case pursuant to 28 U.S.C. § 1332.

Each Defendant has now filed a Motion to Dismiss in this Court. Lim moves to dismiss under Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction and under Rule 12(b)(6) for failure to state a claim. Allstate also moves to dismiss under Rule 12(b)(6).

II.Legal Standard

A. Rule 12(b)(2) -- Personal Jurisdiction

To survive a motion to dismiss under Rule 12(b)(2), Plaintiff bears the burden of "establishing a factual basis for the [Court's] 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), overruled on other grounds by Kauffman v. Anglo-American School of Sofia, 28 F.3d 1223 (D.C. Cir. 1994)). To meet this burden, Plaintiff "must allege specific facts connecting the defendant with the forum." Capital Bank Int'l Ltd. v. Citigroup, Inc., 276 F. Supp. 2d 72, 74 (D.D.C. 2003) (citing Second Amendment Foundation v. U.S. Conference of Mayors, 274 F.3d 521, 524 (D.C. Cir. 2001)).

In determining whether a basis for personal jurisdiction exists, "factual discrepancies appearing in the record must be resolved in favor of the plaintiff." New York Zoological Society, 894 F.2d at 456 (citing Reuber, 750 F.2d at 1052). Unlike with a motion to dismiss under Rule 12(b)(6), the Court "may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction." Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).

B. Rule 12(b)(6) -- Failure to State a Claim

Rule 12(b)(6) provides for the dismissal of an action where a complaint fails "to state a claim upon which relief can be granted." When the sufficiency of a complaint is challenged under Rule 12(b)(6), the Court must "treat the complaint's factual allegations as true . . . and must grant plaintiff 'the benefit of all inferences that can be derived from the facts alleged.'" Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)) (internal citation omitted). The notice pleading rules are "not meant to impose a great burden upon a plaintiff." Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 347 (2005). But while "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). The Court need not accept as true, however, "'a legal conclusion couched as a factual allegation,'" nor an inference unsupported by the facts set forth in the Complaint. Trudeau v. Fed. Trade Comm'n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). Plaintiff must put forth "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. Though a plaintiff may survive a 12(b)(6) motion even if "recovery is very remote and unlikely," Twombly, 550 U.S. at 556 (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)), the facts alleged in the complaint "must be enough to raise a right to relief above the speculative level." Id. at 555.


The Court will first address the issue of personal jurisdiction and then analyze each count as it relates to each Defendant.

A. Jurisdiction

Where, as here, subject matter jurisdiction "is based on diversity of citizenship, [courts in this district] look to District law to determine whether there is a basis for exercising personal jurisdiction over" the defendant. New York Zoological Society, 894 F.2d at 455 (citing Crane v. Carr, 814 F.2d 758, 762 (D.C. Cir. 1987)). Under the District of Columbia's long-arm statute, "[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).

Defendant Lim raises the defense of lack of personal jurisdiction both in her Answer and in her Motion to Dismiss. She argues, "This Court lacks Jurisdiction because none of the event[s] occurred in the District of Columbia if they occurred at all." Lim Answer at ¶ 2. In her Motion to Dismiss, Lim alleges, "All the events described in the Plaintiff's complaint occurred on June 18, 2008 in Silver Spring, Maryland." Lim Mot. at 3. Specifically, Lim alleges she "travelled to Silver Spring, Maryland at the Lees express carryout restaurant to pick up a check from Mr. Feng $4,800.00 and cash $200.00" as reimbursement for money she lent Plaintiff earlier that day. Id. at 4.

Plaintiff conversely alleges that he paid Lim in the District of Columbia. Specifically, Plaintiff states in his Opposition to Lim's Motion to Dismiss that he "rendered the check of $4,800.00 and $5,000.00 cash payment to Ms. Lim in the District of Columbia. The check was under Plaintiff's name and his address is in the District of Columbia." Plf. Opp. to Lim Mot. at 6. To survive a motion to dismiss, Plaintiff need only make a prima facie showing that the Court has jurisdiction over Defendant. See Mwani v. Bin Laden, 417 F.3d 1, 7 (D.C. Cir. 2005). In making such a showing, Plaintiff is "not limited to evidence that meets the standards of admissibility required by the district court. Rather, [he] may rest [his] argument on [his] pleadings, bolstered by such affidavits and other written materials as [he] can otherwise obtain." Id.; see also U.S. v. Smithfield Foods, Inc., 332 F. Supp. 2d 55, 59-60 (D.D.C. 2004) ("in resolving motions to dismiss brought under Rule 12(b)(2), . . . courts are free to consider relevant materials outside the pleadings.") (citation omitted).

The factual allegations contained in Plaintiff's Opposition to Lim's Motion to Dismiss do not carry the same weight as would an affidavit from Plaintiff; nevertheless, the Court finds them, at this stage of the proceedings, sufficient to support the conclusion that Lim transacted business in the District of Columbia and is thereby subject to the District's long-arm statute. Although the Court preliminarily resolves the discrepancy about the location of events in favor of Plaintiff, this decision may be revisited in the event that discovery reveals that the parties did not conduct any of their business in the District of Columbia.

Even if the events described in Plaintiff's Complaint transpired in Maryland rather than the District, this Court may nevertheless have personal jurisdiction over Lim. District of Columbia courts may assert personal jurisdiction over a person who "caus[es] tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia." D.C. CODE § 13-423(a)(4). Lim admits in her Motion to Dismiss that her "business [is] 98% conducted in Virginia and Maryland and other jurisdictions," Lim Mot. at 6, suggesting that she may regularly conduct business, if a minority of her overall practice, in the District.

B. Count I: Fraudulent Misrepresentation

To successfully plead a claim of fraudulent misrepresentation under D.C. law,*fn2 a plaintiff must establish, by clear and convincing evidence: (1) a false representation; (2) made in reference to a material fact; (3) with knowledge of its falsity; (4) with the intent to deceive; and (5) an action taken in reliance upon the representation. See Fennell v. AARP, No. 09-01976, 2011 WL 899334, at *10 (D.D.C., Mar. 16, 2011) (citing In re Estate of McKenney, 953 A.2d 336, 342 (D.C. 2008)); Nader v. Allegheny Airlines, Inc., 626 F.2d 1031, 1036 (D.C. Cir. 1980). Under Federal Rule of Evidence 9(b), a plaintiff must also "state with particularity the circumstances constituting fraud." To fulfill this requirement, Plaintiff "'must state the time, place and content of the false misrepresentations, the fact misrepresented ...

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