UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) EDWARD WALKER DEAN, ) ) Plaintiff, ) ) Civil Action No. 09-2235 (EGS) v. ) ) EDWARD WALKER, et al., ) ) Defendants. ) )
MEMORANDUM OPINION
Pending before the Court is Defendant Mark Sypniewski’s
Motion to Dismiss pursuant to Rules 12(b)(2) and 12(b)(6) of the
Federal Rules of Civil Procedure. Upon consideration of the
motion, the response, the reply and surreply thereto, the
applicable law, and for the following reasons, the Court
concludes that it lacks personal jurisdiction over Defendant
Sypniewski. At the request of plaintiff, however, the Court will
exercise its discretion to transfer plaintiff’s action against
Defendant Sypniewski to the United States District Court for the
Eastern District of Michigan.
I. FACTUAL BACKGROUND
Plaintiff Edward Walker Dean brought this diversity action
against Defendant Edward Walker, Defendant W Industries, and
Defendant Sypniewski. In his complaint, plaintiff alleges
(i) breach of contract, (ii) willful, malicious and wanton
misconduct, and (iii) tortious interference with contract. See Compl. ¶¶ 8-18. With regards to Defendant Sypniewski, plaintiff
alleges, among other things, that Sypniewski “knew that
[plaintiff] had a Consulting Agreement with W [Industries],”
“made threats with the intent of causing the termination of the
Consulting Agreement between W [Industries] and [plaintiff],” and
“in fact induced W [Industries] to breach its Consulting
Agreement with [plaintiff] and interfered with the economic [sic]
advantageous relationship between [plaintiff] and W
[Industries].” Compl. ¶¶ 17, 18.
In response, Defendant Sypniewski filed a motion to dismiss
arguing that the Court lacks personal jurisdiction over him “as
his limited contacts with the District of Columbia have been
undertaken solely at the direction of [his employer],” and that
plaintiff fails to allege the necessary facts to state a claim
for tortious interference with a contract. Def.’s Mot. at 1-2.
This motion is now ripe for determination by the Court.
II. LEGAL STANDARD
A 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).
Bare allegations or conclusory statements are insufficient to
establish personal jurisdiction; instead, the plaintiff “must
allege specific facts connecting each defendant with the forum.”
2 GTE New Media Servs., Inc. v. Ameritech Corp., 21 F. Supp. 2d 27,
36 (D.D.C. 1998). When determining whether personal jurisdiction
exists over a defendant, the Court need not treat all of a
plaintiff’s allegations as true. Instead, the Court “may receive
and weigh affidavits and any other relevant matter to assist it
in determining the jurisdictional facts.” United States v.
Philip Morris, Inc., 116 F. Supp. 2d 116, 120 n.4 (D.D.C. 2000)
(internal quotation marks and citation omitted). Any factual
discrepancies with regard to the existence of personal
jurisdiction, however, must be resolved in favor of the
plaintiff. See Crane, 894 F.2d at 456.
A motion to dismiss under Rule 12(b)(6) tests the legal
sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235,
242 (D.C. Cir. 2002). A complaint must contain “a short and
plain statement of the claim showing that the pleader is entitled
to relief, in order to give the defendant fair notice of what the
. . . claim is and the grounds upon which it rests.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation
marks and citations omitted). “‘[W]hen ruling on a defendant’s
motion to dismiss, a judge must accept as true all of the factual
allegations contained in the complaint[,]’” Atherton v. D.C.
Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009) (quoting
Erickson v. Pardus, 551 U.S. 89, 94 (2007)), and grant the
3 plaintiff “the benefit of all inferences that can be derived from
the facts alleged.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271,
1276 (D.C. Cir. 1994). A court must not, however, “accept
inferences drawn by plaintiffs if such inferences are unsupported
by the facts set out in the complaint. Nor must the court accept
legal conclusions cast in the form of factual allegations.” Id.
In addition, “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “[O]nly a
complaint that states a plausible claim for relief survives a
motion to dismiss.” Id.
III. ANALYSIS
This case arises under the Court’s diversity jurisdiction.
See Compl. ¶ 6 (asserting jurisdiction under 28 U.S.C. § 1332).
Accordingly, whether the Court has personal jurisdiction over
Sypniewski is a function of District of Columbia law. Crane, 814
F.2d at 762. Because plaintiff does not allege that Sypniewski
is a resident of the District of the Columbia, the Court may
exercise personal jurisdiction over the defendant only if
plaintiff had plead sufficient facts to satisfy (1) the District
of Columbia long-arm statute, D.C. Code § 13-423,1 and (2) the
1 Section 13-423(a) provides, in relevant part, that: “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; (2) contracting to supply
4 constitutional requirements of due process.2
In this case, plaintiff appears to base his argument that
the long-arm statute confers personal jurisdiction over
Sypniewski for his tortious interference claim on both
§§ 13-423(a)(1) and (4): i.e., “transacting any business in the
District of Columbia” and “causing tortious injury in the
District of Columbia by an act or omission outside the District
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) EDWARD WALKER DEAN, ) ) Plaintiff, ) ) Civil Action No. 09-2235 (EGS) v. ) ) EDWARD WALKER, et al., ) ) Defendants. ) )
MEMORANDUM OPINION
Pending before the Court is Defendant Mark Sypniewski’s
Motion to Dismiss pursuant to Rules 12(b)(2) and 12(b)(6) of the
Federal Rules of Civil Procedure. Upon consideration of the
motion, the response, the reply and surreply thereto, the
applicable law, and for the following reasons, the Court
concludes that it lacks personal jurisdiction over Defendant
Sypniewski. At the request of plaintiff, however, the Court will
exercise its discretion to transfer plaintiff’s action against
Defendant Sypniewski to the United States District Court for the
Eastern District of Michigan.
I. FACTUAL BACKGROUND
Plaintiff Edward Walker Dean brought this diversity action
against Defendant Edward Walker, Defendant W Industries, and
Defendant Sypniewski. In his complaint, plaintiff alleges
(i) breach of contract, (ii) willful, malicious and wanton
misconduct, and (iii) tortious interference with contract. See Compl. ¶¶ 8-18. With regards to Defendant Sypniewski, plaintiff
alleges, among other things, that Sypniewski “knew that
[plaintiff] had a Consulting Agreement with W [Industries],”
“made threats with the intent of causing the termination of the
Consulting Agreement between W [Industries] and [plaintiff],” and
“in fact induced W [Industries] to breach its Consulting
Agreement with [plaintiff] and interfered with the economic [sic]
advantageous relationship between [plaintiff] and W
[Industries].” Compl. ¶¶ 17, 18.
In response, Defendant Sypniewski filed a motion to dismiss
arguing that the Court lacks personal jurisdiction over him “as
his limited contacts with the District of Columbia have been
undertaken solely at the direction of [his employer],” and that
plaintiff fails to allege the necessary facts to state a claim
for tortious interference with a contract. Def.’s Mot. at 1-2.
This motion is now ripe for determination by the Court.
II. LEGAL STANDARD
A 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).
Bare allegations or conclusory statements are insufficient to
establish personal jurisdiction; instead, the plaintiff “must
allege specific facts connecting each defendant with the forum.”
2 GTE New Media Servs., Inc. v. Ameritech Corp., 21 F. Supp. 2d 27,
36 (D.D.C. 1998). When determining whether personal jurisdiction
exists over a defendant, the Court need not treat all of a
plaintiff’s allegations as true. Instead, the Court “may receive
and weigh affidavits and any other relevant matter to assist it
in determining the jurisdictional facts.” United States v.
Philip Morris, Inc., 116 F. Supp. 2d 116, 120 n.4 (D.D.C. 2000)
(internal quotation marks and citation omitted). Any factual
discrepancies with regard to the existence of personal
jurisdiction, however, must be resolved in favor of the
plaintiff. See Crane, 894 F.2d at 456.
A motion to dismiss under Rule 12(b)(6) tests the legal
sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235,
242 (D.C. Cir. 2002). A complaint must contain “a short and
plain statement of the claim showing that the pleader is entitled
to relief, in order to give the defendant fair notice of what the
. . . claim is and the grounds upon which it rests.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation
marks and citations omitted). “‘[W]hen ruling on a defendant’s
motion to dismiss, a judge must accept as true all of the factual
allegations contained in the complaint[,]’” Atherton v. D.C.
Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009) (quoting
Erickson v. Pardus, 551 U.S. 89, 94 (2007)), and grant the
3 plaintiff “the benefit of all inferences that can be derived from
the facts alleged.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271,
1276 (D.C. Cir. 1994). A court must not, however, “accept
inferences drawn by plaintiffs if such inferences are unsupported
by the facts set out in the complaint. Nor must the court accept
legal conclusions cast in the form of factual allegations.” Id.
In addition, “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “[O]nly a
complaint that states a plausible claim for relief survives a
motion to dismiss.” Id.
III. ANALYSIS
This case arises under the Court’s diversity jurisdiction.
See Compl. ¶ 6 (asserting jurisdiction under 28 U.S.C. § 1332).
Accordingly, whether the Court has personal jurisdiction over
Sypniewski is a function of District of Columbia law. Crane, 814
F.2d at 762. Because plaintiff does not allege that Sypniewski
is a resident of the District of the Columbia, the Court may
exercise personal jurisdiction over the defendant only if
plaintiff had plead sufficient facts to satisfy (1) the District
of Columbia long-arm statute, D.C. Code § 13-423,1 and (2) the
1 Section 13-423(a) provides, in relevant part, that: “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; (2) contracting to supply
4 constitutional requirements of due process.2
In this case, plaintiff appears to base his argument that
the long-arm statute confers personal jurisdiction over
Sypniewski for his tortious interference claim on both
§§ 13-423(a)(1) and (4): i.e., “transacting any business in the
District of Columbia” and “causing tortious injury in the
District of Columbia by an act or omission outside the District
of Columbia.” See Pl.’s Opp’n ¶¶ 11-12 (citing § 13-423(a)(1));
Pl.’s Opp’n ¶ 8 (asserting that “Sypniewski[’s] acts in inducing
the breach of Dean’s Consulting Agreement which was to be
performed in Washington, D.C. produced a result in D.C.”). The
Court finds both of these arguments unpersuasive.
services in the District of Columbia; (3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia; (4) causing 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 . . . [.]” 2 To satisfy the Due Process Clause, a plaintiff must show that the defendant “purposefully avail[ed] himself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws,” Kopff v. Battaglia, 425 F. Supp. 2d 76, 83 (D.D.C. 2006) (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)), and that the defendant has “‘minimum contacts’ . . .[and] ‘conduct and connection with the forum [s]tate . . .such that he should reasonably anticipate being haled into court there.’” GTE New Media, 199 F.3d at 1347 (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); World-Wide Volkswagen Corp. v. Woodsen, 444 U.S. 286, 297 (1980)).
5 First, with regards to § 13-423(a)(1), Defendant Sypniewski
avers that he has “no personal business contacts with the
District of Columbia,” and has “never transacted any personal
business within the District of Columbia.” Declaration of Mark
Sypniewski (“Sypniewski Decl.”) ¶ 3. As plaintiff fails to
allege any facts to the contrary, see Crane, 894 F.2d at 456
(discussing the plaintiff’s burden to establish a factual basis
for asserting personal jurisdiction), the Court finds that
plaintiff has failed to establish long-arm jurisdiction under
§ 13-423(a)(1).
Nor can plaintiff establish personal jurisdiction pursuant
to § 13-423(a)(4). Even assuming the truth of plaintiff’s
assertion that “Sypniewski[’s] acts in inducing the breach of
[his] Consulting Agreement . . . produced a result in D.C.,” the
Court finds that plaintiff has failed to establish that Defendant
Sypniewski “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). The extent
of Sypniewski’s contacts with the District of Columbia are (i) a
four-day trip that he took with his family as a tourist in 2002,
Sypniewski Decl. ¶ 3, and (ii) attendance at two conferences on
behalf of his employer in March 2009 and March 2010, Sypniewski
Decl. ¶ 8. As none of these contacts relate to the allegations
6 contained in this lawsuit, the Court finds that such sporadic
contact is simply insufficient to establish a “regular” or
“persistent” course of conduct in the District of Columbia as
required by § 13-423(a)(4). See, e.g., Urban Inst. v. FINCON
Servs., 681 F. Supp. 2d 41, 47-48 (D.D.C. 2010) (finding that
three trips to solicit business in the District of Columbia did
not create a persistent course of conduct). While plaintiff
asserts that because “Sypniewski does not eliminate phone calls,
mail, e-mail, or other forms of contact in the District of
Columbia . . . it should be accepted that [the defendant] has had
sufficient contacts with the District of Columbia for this Court
to obtain jurisdiction over him,” Pl.’s Opp’n ¶ 9, the Court
finds this argument both speculative and unpersuasive. See
generally GTE New Media Servs., 21 F. Supp. 2d at 36 (requiring
the plaintiff to allege “specific facts connecting each defendant
with the forum”); see also FC Inv. Group LC v. IFX Mkts., Ltd.,
529 F.3d 1087, 1095 n.8, 1096 n.9 (D.C. Cir. 2008) (“regular”
telephone calls to the District of Columbia insufficient to
establish long-arm jurisdiction under either §§ 13-423(a)(1) or
(a)(4)). Finally, in light of Sypniewski’s sworn declaration
describing his minimal contacts with the District of Columbia,
the Court concludes that jurisdictional discovery would be
futile, and therefore DENIES plaintiff’s request for
jurisdictional discovery. See GTE New Media Servs., 199 F.3d at
7 1351 (explaining that jurisdictional discovery is justified only
if the plaintiff reasonably “demonstrates that it can supplement
its jurisdictional allegations through discovery”).
In conclusion, after closely considering the jurisdictional
allegations in the complaint, plaintiff’s opposition and
surreply, and Sypniewski’s declaration, the Court holds that
plaintiff has failed to allege specific, non-conclusory
allegations that establish personal jurisdiction over Sypniewski
under the District of Columbia’s long-arm statute.3 Because the
Court lacks personal jurisdiction over Defendant Sypniewski, the
Court will exercise its discretion to transfer this action to
Sypniewski’s home forum - the United States District Court for
the Eastern District of Michigan. See Naartex Consulting Corp.
v. Watt, 722 F.2d 779, 789 (D.C. Cir. 1983) (“The Court may
transfer an action even though it lacks personal jurisdiction
over the defendants.”); see also 28 U.S.C. § 1406(a) (permitting
courts, in the interest of justice, to transfer an action to any
other district where it could have been brought).4 The Court
3 As plaintiff has failed to establish this Court’s personal jurisdiction over Defendant Sypniewski pursuant to either §§ 13-423(a)(1) or (a)(4), the Court does not have to resolve “whether the exercise of personal jurisdiction is reasonable or fair [based on] [the District of Columbia’s] ‘interest in adjudicating the dispute.’” Exponential Biotherapies, Inc. v. Houthoff Buruma N.V., 638 F. Supp. 2d 1, 11 (D.D.C. 2009) (quoting World-Wide Volkswagen, 444 U.S. at 292). 4 In his surreply, plaintiff states that he “has no objection to this court transferring venue to the [E]astern
8 therefore declines to consider the merits of defendant’s motion
to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
IV. CONCLUSION
For the foregoing reasons, the Court concludes that it lacks
personal jurisdiction over Defendant Sypniewski. Accordingly,
plaintiff’s action against Defendant Sypniewski will be
transferred to the United States District Court for the Eastern
District of Michigan. A separate Order accompanies this
Memorandum Opinion.
SO ORDERED.
Signed: EMMET G. SULLIVAN United States District Judge December 23, 2010
[D]istrict of Michigan if it feels it has no jurisdiction.” Pl.’s Surreply at 3.