United States District Court, District of Columbia
E. Boasberg, United States District Judge
sustaining injuries from an allegedly defective B Yours Vibe
2 vibrator, Plaintiff Rene Pinkett filed suit against both
the vibrator's seller and its manufacturer. In an earlier
round of this litigation, the manufacturer - Defendant Vee
International, Inc. - moved to dismiss for lack of personal
jurisdiction. Reluctant to end Vee's involvement with
this case without granting Pinkett an opportunity to explore
possible bases for jurisdiction, the Court permitted her
discovery to investigate Defendant's contacts with the
District of Columbia. That discovery has now taken place. As
it turned up nothing that subjects Vee to personal
jurisdiction here, the Court will grant the company's
renewed Motion to Dismiss.
facts underlying this case bear little on the narrow issue at
play. The Court will thus jump over most of the setup and
focus on the case's procedural history. Pinkett lives in
Washington, D.C. See ECF No. 1, Attach. 2 (Sup. Ct.
Docs.), Exh. A (Complaint), ¶ 3. According to her
Complaint, she purchased the Vibe 2 around May or June of
2015 from a mail-order catalogue published by Dr.
Leonard's Healthcare Corporation. Id., ¶ 8.
After an alleged product defect caused her injury, Pinkett
filed suit against both the seller - Dr. Leonard's - as
well as the vibrator's manufacturer, Vee International,
which conducts business under the name Blush Novelties. Id.,
¶¶ 12-18; see also ECF No. 17 (Vee Amended
MTD) at 1 n.1. The two Defendants responded with separate
motions to dismiss. Dr. Leonard's maintained that
Plaintiffs Complaint failed to state a claim. See
ECF No. 4 (Dr. Leonard's MTD). This Court granted in part
and denied in part that motion, narrowing the counts that
could continue. See Pinkett v. Dr. Leonard's
Healthcare Corp., 2018 WL 4682022, at *1 (D.D.C. Sept.
International took a different route. It contended that the
Court lacked personal jurisdiction over it, as the Complaint
fell short of establishing either specific or general
jurisdiction. See Sup. Ct. Docs. at ECF pp. 68-70
(Vee First MTD), ¶¶ 3-5. In response, Pinkett
argued that she did not have enough information to show that
the Court could exercise general jurisdiction over Defendant.
See Sup. Ct. Docs. at ECF pp. 96-104 (Pl. Opp. First
MTD.) at 3. She maintained, however, that specific
jurisdiction existed here. Plaintiff based this conclusion on
her assertion that Vee “regularly conducts and solicits
business in Washington, D.C., ” through mail-order
catalogues, such as Dr. Leonard's, as well as through
various online retailers, such as Amazon and eBay.
See Compl., ¶¶ 6, 13; see also
Pl. Opp. First MTD at 2, 6 & n.3.
Court concluded that Vee could not be subjected to general
jurisdiction in the District of Columbia. See Pinkett v.
Dr. Leonard's Healthcare Corp., 2018 WL 5464793, at
*2-3 (D.D.C. Oct. 29, 2018). As to specific jurisdiction,
although it found insufficient bases in the existing record,
id. at *2, it nevertheless ordered jurisdictional
discovery “because [Pinkett] identifie[d] certain facts
that could, if more fully developed, support the exercise of
personal jurisdiction.” Id The Court
forewarned her that unilateral actions by distributors and
passive websites would not be sufficient to establish this
Court's jurisdiction over Vee International. Id
the completion of such jurisdictional discovery - during
which Plaintiff took the deposition of Vee
International's Chief Operating Officer, Eric Lee -
Defendant has now renewed its Motion to Dismiss for lack of
personal jurisdiction. See Vee Amended MTD at 1.
Plaintiff meanwhile holds fast to her contention that her
suit against Vee is properly in this Court. In support, she
points to two additional facts turned up during discovery.
First, Vee International participates in occasional
tradeshows, which draw participants from across the United
States. See ECF No. 18 (Pl. Opp.) at 6. Second, a
retailer in College Park, Maryland, carries Defendant's
products and can be located through Vee International's
website. Id. at 6-7. The Court's task is now to
ascertain whether these two assertions tip the balance in
Pinkett's favor as to specific jurisdiction. She concedes
that there is no general jurisdiction here. Id at 7.
Federal Rule of Civil Procedure 12(b)(2), a defendant may
move to dismiss a suit if the court lacks personal
jurisdiction over it. The plaintiff bears the burden of
establishing personal jurisdiction, see FC Inv. Grp. LC
v. IFX Mkts., Ltd., 529 F.3d 1087, 1091 (D.C. Cir.
2008), and the requirements for personal jurisdiction
“must be met as to each defendant.” Rush v.
Savchuk, 444 U.S. 320, 332 (1980). In deciding whether
the plaintiff has shown a factual basis for personal
jurisdiction over a defendant, the court resolves factual
discrepancies in favor of the plaintiff. See Crane v.
N.Y. Zoological Soc'y, 894 F.2d 454, 456 (D.C. Cir.
1990). When personal jurisdiction is challenged, “the
district judge has considerable procedural leeway in choosing
a methodology for deciding the motion.” 5B Charles A.
Wright & Arthur R. Miller, Federal Practice and
Procedure § 1351 (3d ed. 2004). The court may rest
on the allegations in the pleadings, collect affidavits and
other evidence, or even hold a hearing. Id.
Federal Rules, a district court may exercise specific
jurisdiction over a defendant when a court of the state in
which the federal court is located could exercise such
jurisdiction. See Fed. R. Civ. P. 4(k)(1)(A). This
analysis requires a “two-part inquiry.” GTE New
Media Servs. Inc. v. BellSouth, Corp., 199 F.3d
1343, 1347 (D.C. Cir. 2000). A court must first examine
whether the state's - here, the District's - long-arm
statute reaches the defendant and then ask whether
jurisdiction comports with the requirements of the
Constitution's Due Process Clause. Id In this
case, however, those two inquires merge. That is because,
although the District's long-arm statute sets forth
several possible routes for personal jurisdiction, Pinkett
only invokes one: a claim arising from Defendant's
“transacting any business in the District of
Columbia.” D.C. Code § 13-423(a)(1); see
also Pl. Opp. at 4. The D.C. Court of Appeals has
interpreted this prong to be “coextensive with the due
process clause” when the relevant contacts derive from
some type of commercial or business-related activity, as is
the case here. See Helmer v. Doletskaya, 393 F.3d
201, 205 (D.C. Cir. 2004) (quoting Mouzavires v.
Baxter, 434 A.2d 988, 992 (D.C. 1981)). The only inquiry
necessary, therefore, is the Constitutional one.
process permits a court to exercise specific jurisdiction
over a non-resident defendant where there are sufficient
minimum contacts. See Int'l Shoe, Co. v.
Washington, 326 U.S. 310, 316 (1945). More specifically,
such contacts must be extensive enough so that a defendant
could “reasonably anticipate being haled into
court.” World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 297 (1980). Minimum contacts may
be established in some situations through “a
defendant's participation in the ‘stream of
commerce,' which ‘refers to the movement of goods
from manufacturers through distributors to
consumers.'” Williams v. Romarm, SA, 756
F.3d 777, 784 (D.C. Cir. 2014) (quoting J. McIntyre
Mach., Ltd. v. Nicastro, 564 U.S. 873, 881 (2011)
(plurality opinion)). That said, “a ‘single
isolated sale' from a distributor to a customer in the
forum state has never been sufficient to establish minimum
contacts between the manufacturer and the forum.”
Id. at 785 (quoting Nicastro, 564 U.S. at 888
(Breyer, J., concurring in the judgment)). Rather,
jurisdiction over the out-of-state defendant with products in
the stream of commerce is only proper “where the
contacts proximately result from actions by the defendant
himself that create a substantial connection with
the forum State.” Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 475 (1985) (internal quotations
and citation omitted). Such contacts must show that
“the defendant purposefully availed himself of the
privilege of conducting activities within the forum State,
thus invoking the benefits and protections of its
laws.” Thompson Hine, LLP v. Taieb, 734 F.3d
1187, 1189 (D.C. Cir. 2013) (internal quotation marks,
citation, and alterations omitted). For these reasons, a
plaintiff invoking a stream-of-commerce theory must,
“at a minimum, ” be able to point to a
“‘regular course of sales' in the forum
state, or some additional efforts directed toward the forum
state, such as ‘special state-related design,
advertising, advice, [or] marketing.'”
Williams, 756 F.3d at 785 (quoting
Nicastro, 564 U.S. at 889 (Breyer, J., concurring in
the judgment)). In an attempt to clear this hurdle, Plaintiff
relies on two facts obtained during jurisdictional discovery.
she learned from the deposition of Defendant's Chief
Operating Officer, Eric Lee, that Vee International
participates in occasional nationwide tradeshows in various
large cities -notably not D.C. - at which vendors, who
“[c]ould be [from] anywhere, ” approach the
company and place orders directly at the booth. See
ECF No. 18, Attach. 1 (Deposition of Eric Lee) at 16; see
also Pl. Opp. at 6. Although Lee recounted no sale to or
contact with any vendor from the District, he also never
explicitly ruled out the possibility that such interaction
had occurred. See Lee Depo. at 16. Pinkett argues
that this activity supports a finding that Vee International
purposefully sought business in the District. See
Pl. Opp. at 6. This contention is wholly unconvincing.
Without any evidence that any D.C. vendor has ever placed
orders at such a tradeshow, this Court will not treat her
conjecture as a contact. The Supreme Court, moreover, has
already rejected the idea that a manufacturer's desire to
distribute to customers throughout the United States
establishes minimum contacts in a particular state.
See Williams, 756 F.3d at 784-85 (noting that
“six justices agreed” in Nicastro that
“the forum state could not constitutionally assert
jurisdiction over the foreign manufacturer based on . . . the
manufacturer's desire that the distributor pursue
customers throughout the United States”). Under the
logical extension of Pinkett's theory, Vee's
acknowledgment that vendors could be from
“anywhere” would suffice to establish minimum
contacts in every state, territory, and district within the
United States. Due process clearly requires more. Such an
expansive interpretation risks “shred[ding] these
constitutional assurances out of practical existence.”
GTE New Media Servs., 199 F.3d at 1350.
Plaintiff identifies a retailer in College Park, Maryland -
some miles from the District line - that carries
Defendant's products and can be located through the Store
Locator tool on Vee International's website. See
Pl. Opp. at 6-7; see also ECF No. 18, Attach. 3
(Website Store Locator Screenshot). Notably, however, the
website does not permit direct-to-consumer sales.
See Lee Depo. at 21-22. Pinkett nevertheless argues
that the existence of this store supports a finding that the
manufacturer “purposefully availed itself of the forum.
See Pl. Opp. at 6-7. She contends that, given the
proximity of ...