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Rdp Technologies, Inc v. Cambi As

August 2, 2011

RDP TECHNOLOGIES, INC., PLAINTIFF,
v.
CAMBI AS, DEFENDANT.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Plaintiff RDP Technologies, Inc. ("RDP") brings this action against Cambi AS ("Cambi") alleging breach of contract and other common law claims stemming from Cambi's alleged refusal to pay RDP the five percent commission that it was owed under the terms of the parties' agreement. Specifically, RDP maintains that it entered into a contract with Cambi, under which RDP would convince the District of Columbia Water and Sewer Authority ("DCWASA") to use Cambi's patented thermal hydrolysis process in an upgrade to one of its water treatment plants, and in return, Cambi would pay RDP five percent of the proceeds that it received from DCWASA. According to RDP, it succeeded in persuading DCWASA to use Cambi's thermal hydrolysis process, but Cambi has refused to pay RDP its share of the proceeds. Currently before the Court is Cambi's motion to dismiss for insufficient service of process and for failure to present a ripe claim, and Cambi's motion to compel arbitration. For the reasons explained below, the Court will deny the motion to dismiss and deny the motion to compel arbitration.

BACKGROUND

RDP is a corporation that designs, builds, and installs equipment for water treatment plants. Compl. ¶ 19 [Docket Entry 1]. Cambi is a Norwegian corporation that owns a patented thermal hydrolysis process used to convert wastewater into "class A biosolids." Id. ¶¶ 2, 9-10. Because class A biosolids have commercial value as fertilizer, water treatment plants often seek to convert the wastewater that they produce into these biosolids. See id. ¶¶ 11-13, 16.

The District of Columbia Water and Sewer Authority ("DCWASA") operates the Blue Plains plant, which provides water and wastewater treatment to the District. Id. ¶¶ 3-4. Cambi supposedly hired RDP as its United States agent to persuade DCWASA to install Cambi's thermal hydrolysis process as part of an upgrade to the Blue Plains treatment plant. Id. ¶¶ 20-23. In exchange for RDP's work, Cambi allegedly agreed to pay RDP a five percent commission on any payment that it ultimately received from DCWASA. Id. ¶ 41. RDP contends that after approximately seven years of effort, it succeeded in convincing DCWASA to use Cambi's technology as part of its upgrade of the Blue Plains facility. Id. ¶¶ 25-26, 62.

According to RDP, DCWASA intends to spend approximately $600 million to upgrade the plant, $60 million of which will be spent purchasing the equipment and technology needed to use Cambi's thermal hydrolysis process. Id. ¶¶ 27-28. Although DCWASA and Cambi have not yet finalized their contract, RDP alleges that DCWASA has already made some payments to Cambi. Id. ¶ 29. RDP further alleges that because of its success in convincing DCWASA to use Cambi's thermal hydrolysis process, and pursuant to the term of its agreement with Cambi, Cambi owes it an amount exceeding $75,000, exclusive of interest and costs. Id. ¶ 5.

In December 2008, Cambi e-mailed RDP a proposed agency agreement to memorialize the terms of their arrangement. Id. ¶ 40. The agreement contained a forum selection and arbitration clause, stating that "[a]ny dispute, controversy or claim arising out of or in connection with this agreement, or the breach or invalidity thereof, shall be settled by arbitration" in accordance with the Norwegian Arbitration Act. See Def.'s Mot. to Dismiss or to Compel Arbitration ("Def.'s Mot.") [Docket Entry 7], Ex. A., Agency Agreement between Cambi and RDP ("Agency Agreement"), art. 11.

In May 2009, RDP president Richard Christy discussed the proposed agency agreement with Harald Kleiven, Cambi's business development manager, at a conference in Oregon. Id. ¶ 44. Christy raised several questions and concerns about the proposed agency agreement, and Kleiven allegedly assured Christy that the issues raised were open to discussion. Id. ¶¶ 45-46. Shortly thereafter, Christy signed the proposed agency agreement without making any modifications and returned it to Cambi. Id. ¶ 47. Cambi declined to countersign the agreement, and instead allegedly contacted Paul Christy, RDP's CFO and Richard Christy's brother, to ask how Cambi should proceed in its future dealings with RDP. Id. ¶¶ 51-52. Apparently, Richard and Paul Christy were, at the time, entangled in several disputes that eventually led to Paul Christy's resignation from RDP. Id. ¶¶ 54, 56. According to RDP, Paul Christy had even begun negotiating with Cambi in an attempt to replace RDP as Cambi's sole agent for the DCWASA deal. Id. ¶ 55. On September 23, 2009, following Paul Christy's departure from RDP, Cambi officially notified RDP that it was withdrawing the proposed agency agreement. Id. ¶¶ 57, 58.

RDP now claims that Cambi owes it five percent of the funds that DCWASA has paid and will continue to pay Cambi for the use of Cambi's thermal hydrolysis process. Id. ¶¶ 63-64. RDP further alleges that it has demanded payment from Cambi, but that Cambi has refused to make any such payment. Id. On November 15, 2010, RDP brought this action against Cambi, asserting common law claims for unjust enrichment (Count I), quantum meruit (Count II), breach of oral contract (Count III), conspiracy (Count IV), and breach of express contract (Count VI). See id. ¶¶ 67-97, 101-104. RDP also seeks a declaratory judgment that Cambi owes it 5% of all monies received from DCWASA (Count V). See id. ¶¶ 98-100. Three days after it filed suit, RDP attempted to effect service of process on Cambi by leaving the summons and complaint with the wife of Keith Hamilton, whom RDP allegedly believed to be an authorized agent of Cambi's. See Aff. Service [Docket Entry 4]. Cambi, however, contends that Hamilton is merely a consultant who "is not an officer or agent of Cambi AS" and "has no authority to bind the company or to accept service on its behalf." See Def.'s Mot at 4.

On December 9, 2010, Cambi filed this motion to dismiss, in part on the basis of insufficient service of process. See Def.'s Mot at 3-5. RDP responded by attempting to effect service of process upon Cambi pursuant to the Hague Convention on the Service Abroad of Judicial and Extra-judicial Documents ("Hague Convention"). Specifically, on January 18, 2011, RDP filed an affidavit stating that it had mailed a copy of the summons and complaint to the Norwegian Central Authority pursuant to the Hague Convention and that the documents had been successfully delivered. See Aff. Foreign Mailing [Docket Entry 12]. Then, on February 28, 2011, RDP provided the Clerk of Court with a certificate of service of the Chief Process Server of Asker and Baerum, Norway, attesting that RDP had, in fact, effected service of process upon Cambi on January 27, 2011, in Asker, Norway. See Aff. Service [Docket Entry 13].

Now before the Court is Cambi's motion to dismiss on the ground that RDP failed to effect sufficient service of process and that RDP's claims are not ripe for adjudication. Cambi also belatedly argues that this case should be dismissed for lack of subject-matter jurisdiction because RDP has failed to satisfy the amount in controversy requirement. See Def.'s Reply Mem. of Law in Supp. of Mot. to Dismiss Comp. or to Compel Arbitration ("Def.'s Reply") [Docket Entry 11] at 4-5. Finally, Cambi moves to compel arbitration pursuant to the arbitration provision contained in the proposed agency agreement that it sent to RDP and RDP signed, but that Cambi itself never countersigned.

STANDARD OF REVIEW

"[T]he proper approach to employ in reviewing the defendant's motion to dismiss and compel arbitration is to apply the same standard of review that governs [Federal Rules of Civil Procedure] Rule 56 motions." Brown v. Dorsey & Whitney, LLP, 267 F. Supp. 2d 61, 67 (D.D.C. 2003). Hence, it is appropriate to grant a party's motion to compel arbitration when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The party seeking to compel arbitration bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322. "'The district court, when considering a motion to compel arbitration which is opposed on the ground that no agreement to arbitrate has been made between the parties, should give the opposing party the benefit of all reasonable doubts and inferences that may arise . . . . [I]n as much as the district court's order to arbitrate is in effect a summary disposition of the issue of whether or not there had been a meeting of the minds on the agreement to arbitrate,' consideration of the motion according to the 'standard used by district courts in resolving ...


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