Tulkoff Food Products, Inc. v. Wm. E. Martin and Sons Co., Inc.
MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 7/7/2017. (bas, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
TULKOFF FOOD PRODUCTS, INC.,
Case No. ELH-17-350
WM. E. MARTIN AND SONS CO., INC.,
Plaintiff Tulkoff Food Products, Inc. (“Tulkoff Food”) brought suit against defendant
Wm. E. Martin and Sons Co., Inc. (“Martin and Sons” or “Martin Spices”) (ECF 1), alleging
breach of a “Sales Booking” agreement. Id. ¶¶ 23-28; see ECF 1-1 (“Agreement” or “Sales
Booking”). Under the Agreement, Martin and Sons sold thirty-six full container loads (“FCL”)
of minced Chinese garlic to Tulkoff Food, to be delivered on a particular schedule. See ECF 1-1.
Tulkoff Food claims that Martin and Sons failed to deliver nine of the 36 FCLs, as required by
the Agreement. ECF 1, ¶ 27. As a result, Tulkoff Food alleges that it has incurred more than
$564,000 in “direct, consequential, and incidental damages.” Id. ¶ 28.
Martin and Sons has moved to dismiss for lack of personal jurisdiction, pursuant to Fed.
R. Civ. P. 12(b)(2). ECF 7. The motion is supported by a memorandum of law (ECF 7-1)
(collectively, “Motion”) and an exhibit. ECF 7-2. Tulkoff Food opposes the Motion (ECF 12,
“Opposition”) and has submitted an exhibit. ECF 12-1. Martin and Sons has replied. ECF 13
The Motion has been fully briefed and no hearing is necessary to resolve it. See Local
Rule 105.6. For these reasons that follow, I shall deny the Motion.
Tulkoff Food is a Maryland corporation with its principal place of business in Baltimore.
ECF 1, ¶ 1. According to Tulkoff Food, it is a “leading manufacturer of food service goods,
supplying a variety of full-flavored, high-quality condiments, specialty sauces and ingredients
for co-pack, private label, food service, industrial and retail customers nationwide.” Id. ¶ 6.
Philip Tulkoff is the president of Tulkoff Food. ECF 12-1 (Tulkoff Affidavit), ¶ 1.
William Martin is vice president of Martin and Sons. ECF 7-2 (Martin Declaration), ¶ 1.
Martin and Sons is a New York corporation with its principal place of business in Roslyn, New
York. Id. ¶ 5. Mr. Martin describes defendant as an “importer of spices, seeds and herbs, which
it sells for its own account from a warehouse in New Jersey.” Id. ¶ 6. Martin and Sons also
“facilitates transactions between overseas shippers of spices, seeds and herbs which are delivered
directly to the purchaser of the product.” Id. ¶ 7.
Tulkoff Food and Martin and Sons entered into the Agreement on or about August 20,
2015. See ECF 1-1. As noted, under the Agreement, Martin and Sons sold to Tulkoff Food 36
FCLs of minced Chinese garlic, each containing approximately 39,500 pounds of garlic. Id. The
garlic was to be delivered over a 13-month schedule, as set forth in the Agreement. Id. Tulkoff
Food agreed to pay $1.58 per pound of garlic. Id. Notably, the Agreement provides, id.: “Proper
execution of this contract is the responsibility of the shipper.”
In its Complaint, Tulkoff Food claims that Martin and Sons handled all aspects of
shipping the garlic and entered into contracts for the transportation of the shipments. ECF 1, ¶¶
14, 15. But, in his Declaration, Mr. Martin counters that Martin and Sons did not handle any of
the aspects of shipping the garlic. ECF 7-2, ¶ 19. He also avers that Martin & Sons did not enter
into contracts for the transportation of the shipments. Id. ¶ 20. According to Mr. Martin, the
shipper for this contract was Shandong Sanxing Food Co., Ltd. (“Sanxing”), a producer and
shipper in China. Id. ¶ 17. Mr. Martin asserts: “The identity of the Chinese shipper was known
to and approved by Tulkoff [Food] at the time of the transaction.” Id.
Mr. Martin explains that the product due under the Agreement was shipped directly by
Sanxing to Tulkoff Food. Id. ¶ 18. To this end, Mr. Martin states that Martin and Sons “did not
handle . . . (1) pickup of garlic from facilities in China; (2) shipping of garlic to Chinese port(s),
including in Qingdao; (3) shipping of garlic from ports such as Qingdao to a port in Baltimore,
Maryland; or (4) shipping of garlic from Baltimore's port to Tulkoff [Food’s] facilities in
Maryland.” Id. ¶ 19. Rather, Mr. Martin maintains that defendant entered into a contract with
TRA Spice Inc. (“TRA Spice”) to “facilitat[e] the shipments between Sanxing and Tulkoff
[Food] . . . .” Id. ¶ 21. According to Mr. Martin, all of the “activities” concerning the shipment
of the garlic were handled either by Sanxing or TRA Spice. Id. ¶ 22.
In his Affidavit, Mr. Tulkoff disputes Mr. Martin’s characterization of the shipping
arrangements. ECF 12-1. According to Mr. Tulkoff, no representative of Tulkoff Food “met or
communicated with [Sanxing] in relation to the Sales Booking.” Id. ¶ 6. Moreover, Mr. Tulkoff
states that during the course of performance of the Agreement, Martin and Sons “handled all
aspects of shipping the minced garlic.” Id. ¶ 7. Specifically, Mr. Tulkoff avers, id.:
Martin Spices handled at least the following shipping activities: (1) pickup of
garlic from facilities in China; (2) shipping of garlic to Chinese port(s), including
in Qingdao; (3) shipping of garlic from ports such as Qingdao to a port in
Baltimore, Maryland; (4) shipping of garlic from Baltimore's port to Tulkoff
[Food’s] facilities in Maryland; and (5) paying all duties or tariffs due to the
United States government upon entry of any shipment.
In support of its position, Tulkoff Food submitted exhibits with Mr. Tulkoff’s Affidavit,
consisting of emails that appear to be from Martin and Sons. See id. at 7-97. The emails, sent
from the address “email@example.com”, provide information such as the date of the
shipments of the containers and estimated dates of arrival. See, e.g., id. at 7-8. Several of the
emails also provide updates regarding the shipments, including changes in the estimated dates of
arrival (e.g., id. at 23-24, 32-33, 43-44, 53-54) and information regarding customs and FDA
inspections. Id. at 16-17.
According to Tulkoff Food, in or around September 2016, Martin and Sons “fell
significantly behind” on the shipping schedule in the Agreement. ECF 1, ¶ 16. Tulkoff Food
claims that on January 18, 2017, Martin and Sons repudiated its duties under the Agreement,
“claiming that [Martin and Sons] was never responsible for delivering minced Chinese garlic to
Tulkoff [Food] in the first place.” Id. ¶ 19. Tulkoff Food alleges that it has been forced to pay
$564,060 to obtain cover and that it will continue to incur additional damages that are
“consequential to or incidental to Martin Spices’ breaches.” Id. ¶¶ 21, 22.
In the Motion, Martin and Sons claims that this Court lacks personal jurisdiction over it.
ECF 7-1 at 1. In his Declaration, Mr. Martin provides details concerning the contacts between
Martin and Sons and the State of Maryland.
In particular, Mr. Martin avers that “Martin and Sons does not own or lease any real
property in Maryland.” ECF 7-2, ¶ 8. He also claims that “Martin and Sons does not have, and
has never had, any office, phone listings, mailing address, bank account, authorized agents,
subsidiaries, or employees in Maryland.” Id. ¶ 9. Further, Mr. Martin avers that during the past
three years, Martin and Sons has had “slightly under four hundred total customers”, of which
approximately seven, including Tulkoff Food, were located in Maryland. Id. ¶ 10. And, Mr.
Martin asserts that “no officer or employee of Martin and Sons is regularly present in Maryland
on business, and the last time any officer or employee of Martin and Sons went to Maryland for
any business was approximately more than seven years ago.” Id. ¶ 11.
In addition, Mr. Martin maintains that “Martin and Sons did not initiate the contacts that
led to the transaction at issue in this lawsuit.” Id. ¶ 14. According to Mr. Martin, “neither [Mr.
Martin] nor any officer or employee of Martin and Sons traveled to Maryland in connection with
the transaction at issue in this lawsuit.” Id. ¶ 15.
As noted, Tulkoff Food has submitted Mr. Tulkoff’s Affidavit in support of its position
that this Court has personal jurisdiction over Martin and Sons. According to Mr. Tulkoff, the
relationship between Martin and Sons and Tulkoff Food dates to 1993. Mr. Tulkoff avers that
“[s]ince 1993, Martin Spices and Tulkoff [Food] have entered into at least 27 sales booking
contracts, under which Martin Spices sold and delivered several hundred container loads of
spices” to Tulkoff Food in Maryland, consisting of “significantly more than ten million pounds
of spices . . . .” Id. ¶ 11. The aggregate value of spices sold by Martin and Sons to Tulkoff Food
during the length of their relationship is more than $11.5 million. Id. ¶ 13. Mr. Tulkoff also
asserts: “Throughout the course of dealings between Tulkoff [Food] and Martin Spices, Martin
Spices represented to Tulkoff [Food] that it controlled the manner, method, and timing of
delivering spices to Tulkoff [Food] in Maryland.” Id. ¶ 15.
According to Mr. Tulkoff, the parties “have exchanged hundreds or perhaps thousands of
communications both into and out of Maryland, including phone calls, emails, letters, invoices,
sales booking, and purchase orders.” Id. ¶ 17. He also avers: “At some point in or around
October 2002, representatives from Martin Spices traveled in person to Tulkoff [Food’s]
Maryland facilities to contact Tulkoff [Food], discuss the business relationship between Tulkoff
[Food] and Martin Spices, solicit further business with Tulkoff [Food], and initiate further
business with Tulkoff [Food].” Id. ¶ 14.
Additional facts are included in the Discussion.
Standard of Review
Martin and Sons’s motion to dismiss for lack of personal jurisdiction is predicated
on Fed. R. Civ. P. 12(b)(2). “[A] Rule 12(b)(2) challenge raises an issue for the court to resolve,
generally as a preliminary matter.” Grayson v. Anderson, 816 F.3d 262, 267 (4th Cir. 2016).
Under Rule 12(b)(2), the burden is “on the plaintiff ultimately to prove the existence of a ground
for jurisdiction by a preponderance of the evidence.” Combs v. Bakker, 886 F.2d 673, 676 (4th
Cir. 1989); see Universal Leather, LLC v. Koro AR, S.A., 773 F.3d 553, 558 (4th Cir. 2014).
“If the existence of jurisdiction turns on disputed factual questions the court may resolve
the [jurisdictional] challenge on the basis of a separate evidentiary hearing, or may defer ruling
pending receipt at trial of evidence relevant to the jurisdictional question.” Combs, 886 F.2d at
A court may also, in its discretion, permit discovery as to the jurisdictional
issue. See Mylan Laboratories, Inc. v. Akzo, N.V., 2 F.3d 56, 64 (4th Cir. 1993). However,
neither discovery nor an evidentiary hearing is required in order for the court to resolve a motion
under Rule 12(b)(2). See generally 5B C. Wright & A. Miller, Federal Practice & Procedure §
1351 at 274–313 (3d ed.) (“Wright & Miller”).
“The plaintiff’s burden in establishing jurisdiction varies according to the posture of a
case and the evidence that has been presented to the court.” Grayson, 816 F.3d at 268. If the
district court addresses the question of personal jurisdiction as a preliminary matter, it may rule
solely on the basis of motion papers, supporting legal memoranda, affidavits, and the allegations
in the complaint. Consulting Engineers Corp. v. Geometric Ltd., 561 F.3d 273, 276 (4th Cir.
2009); see Grayson, 816 F.3d at 268. In that circumstance, the “plaintiff need only make ‘a
prima facie showing of personal jurisdiction to survive the jurisdictional challenge.’” Grayson,
816 F.3d at 268 (quoting Combs, 886 F.2d at 676). “When determining whether a plaintiff has
made the requisite prima facie showing, the court must take the allegations and available
evidence relating to personal jurisdiction in the light most favorable to the plaintiff.” Grayson,
816 F.3d at 268; see Carefirst of Maryland, Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390,
396 (4th Cir. 2003). But, “district courts are not required . . . to look solely to the plaintiff’s
proof in drawing those inferences.” Mylan Laboratories, 2 F.3d at 62.
Notably, “‘[a] threshold prima facie finding that personal jurisdiction is proper does not
finally settle the issue; plaintiff must eventually prove the existence of personal jurisdiction by a
preponderance of the evidence, either at trial or at a pretrial evidentiary hearing.’” New
Wellington Fin. Corp. v. Flagship Resort Dev. Corp., 416 F.3d 290, 294 n. 5 (4th Cir.
2005) (emphasis in original) (citation omitted).
Fed. R. Civ. P. 4(k)(1)(A) authorizes a federal district court to exercise personal
jurisdiction over a defendant in accordance with the law of the state in which the district court is
Carefirst of Maryland, 334 F.3d at 396.
In Maryland, “to assert personal
jurisdiction over a nonresident defendant, two conditions must be satisfied: (1) the exercise of
jurisdiction must be authorized under the state’s long-arm statute; and (2) the exercise of
Amendment.” Id.; accord Planet Aid, Inc. v. Reveal, Ctr. for Investigative Reporting, GLR-162974, 2017 WL 2778825, at *4 (D. Md. June 26, 2017).
A. The Maryland Long-arm Statute
Maryland’s long-arm statute is codified at Md. Code (2013 Repl. Vol., 2016 Supp.), § 6–
103(b) of the Courts & Judicial Proceedings Article (“C.J.”). It authorizes “personal jurisdiction
over a person, who directly or by an agent,” id.:
(1) Transacts any business or performs any character of work or service in the
(2) Contracts to supply goods, food, services, or manufactured products in the
(3) Causes tortious injury in the State by an act or omission in the State;
(4) Causes tortious injury in the State or outside of the State by an act or omission
outside the State if he regularly does or solicits business, engages in any other
persistent course of conduct in the State or derives substantial revenue from
goods, food, services, or manufactured products used or consumed in the
(5) Has an interest in, uses, or possesses real property in the State; or
(6) Contracts to insure or act as surety for, or on, any person, property, risk,
contract, obligation, or agreement located, executed, or to be performed within
the State at the time the contract is made, unless the parties otherwise provide
When interpreting the reach of Maryland’s long-arm statute, a federal district court is
bound by the interpretations of the Maryland Court of Appeals. See Carbone v. Deutsche Bank
Nat’l Trust Co., RDB-15-1963, 2016 WL 4158354, at *5 (D. Md. Aug. 5, 2016); Snyder v.
Hampton Indus., Inc., 521 F. Supp. 130, 135-36 (D. Md. 1981), aff’d, 758 F.2d 649 (4th Cir.
1985); see also Mylan Laboratories, 2 F.3d at 61.
The Maryland Court of Appeals has
“consistently held that the reach of the long arm statute is coextensive with the limits
of personal jurisdiction delineated under the due process clause of the Federal Constitution” and
that the “statutory inquiry merges with [the] constitutional examination.” Beyond Systems, Inc.
v. Realtime Gaming Holding Co., 388 Md. 1, 22, 878 A.2d 567, 580 (2005) (citing Mohamed v.
Michael, 279 Md. 653, 657, 370 A.2d 551, 553 (1977)); see also Stover v. O’Connell Assocs.,
Inc., 84 F.3d 132, 135–36 (4th Cir. 1996) (stating that “the two inquiries essentially become
one”); accord ALS Scan, Inc. v. Digital Service Consultants, Inc., 293 F.3d 707, 710 (4th Cir.
However, the Maryland Court of Appeals has clarified that the statutory analysis remains
a requirement of the personal jurisdiction analysis. In Mackey v. Compass Marketing, Inc., 391
Md. 117, 892 A.2d 479 (2006), the Maryland Court of Appeals said, id. at 141 n. 6, 892 A.2d at
493 n. 6 (citations omitted):
We stated recently in Beyond v. Realtime . . . that “the purview of the long arm
statute is coextensive with the limits of personal jurisdiction set by the due
process clause of the Federal Constitution.” We did not, of course, mean by this
that it is now permissible to simply dispense with analysis under the long-arm
statute . . . . Rather . . . we interpret the long-arm statute to the limits permitted by
the Due Process Clause when we can do so consistently with the canons of
Since Mackey, the Maryland Court of Appeals has repeatedly affirmed that “determining
whether a Maryland court may exercise personal jurisdiction over a foreign defendant requires
a two-step analysis.” Bond v. Messerman, 391 Md. 706, 721, 895 A.2d 990, 999 (2006); see
also CSR, Ltd. v. Taylor, 411 Md. 457, 472, 983 A.2d 492, 501 (2009) (stating that
personal jurisdiction analysis “entails dual considerations”). First, the court considers “whether
the requirements of Maryland’s long-arm statute are satisfied.” CSR, 411 Md. at 472, 983 A.2d
at 501 (citing Bond, 391 Md. at 721, 895 A.2d at 999; Mackey, 391 Md. at 129, 892 A.2d at
486; Beyond, 388 Md. at 14, 878 A.2d at 576). Second, it considers “whether the exercise of
personal jurisdiction comports with the requirements imposed by the Due Process Clause of the
Fourteenth Amendment.” CSR, 411 Md. at 473, 983 A.2d at 501 (citing Bond, 391 Md. at 721,
895 A.2d at 999; Beyond, 388 Md. at 15, 878 A.2d at 575).
With regard to Maryland’s long-arm statute, Tulkoff Food argues that Martin and Sons is
subject to long-arm jurisdiction in Maryland under both C.J. §§ 6-103(b)(1) and (b)(2). ECF 12
at 8, n.1. Curiously, Martin and Sons did not address long-arm jurisdiction in its submissions.
See ECF 7-1; ECF 13.
As indicated, C.J. § 6–103(b)(1) authorizes “personal jurisdiction over a person, who
directly or by an agent . . . [t]ransacts any business or performs any character of work or service
in the State.” “Although a defendant need not engage in ‘commerce or . . . transactions for
profit,’ ‘Maryland courts have construed the phrase ‘transacting business’ narrowly, requiring,
for example, significant negotiations or intentional advertising and selling in the forum state.’”
Aphena Pharma Sols.-Maryland LLC v. BioZone Labs., Inc., 912 F. Supp. 2d 309, 315 (D. Md.
2012) (citations omitted). And, the Maryland Court of Special Appeals has said that to “transact
business” within the meaning of the long-arm statute, a defendant’s action must have
“culminated in ‘purposeful activity’ within Maryland.” Swarey v. Stephenson, 222 Md. App. 65,
99–100, 112 A.3d 534, 557 (2015).
C.J. § 6–103(b)(2) authorizes “personal jurisdiction over a person, who directly or by an
agent . . . [c]ontracts to supply goods, food, services, or manufactured products in the State.” As
Judge Grimm of this Court said in Rao v. Era Alaska Airlines, 22 F. Supp. 3d 529 (D. Md. 2014),
§ 6-103(b)(2) “covers only contracts to supply goods and services in Maryland, irrespective of
where the contract was negotiated.” Id. at 535 (emphasis in Rao); see also A Love of Food I,
LLC v. Maoz Vegetarian USA, Inc., 795 F. Supp. 2d 365, 370 (D. Md. 2011) (“[Section 6103(b)(2)] covers contracts that offer ‘to supply goods, food, services, or manufactured products
in the State,’ . . . regardless of whether the contract itself was negotiated outside of Maryland.”)
Viewing the facts and allegations in the light most favorable to Tulkoff Food, both C.J.
§ 6-103(b)(1) and § 6-103(b)(2) are satisfied. Section 6-103(b)(1) is satisfied because Martin
and Sons and Tulkoff Food have been in an ongoing relationship for more than twenty years,
during which the parties have engaged in substantial business dealings worth more than $11.5
million. See ECF 12-1, ¶¶ 11, 13. Martin and Sons has not submitted evidence contesting the
nature or duration of this relationship. See ECF 7-2. This relationship, when viewed in the light
most favorable to Tulkoff Food, indicates that Martin and Sons purposefully reached out to
Maryland in conducting its business.
And, § 6-103(b)(2) is satisfied because Martin and Sons agreed to deliver 36 FCLs of
minced Chinese garlic to Tulkoff Food in Maryland. ECF 1-1. Although Martin and Sons
contests some of the circumstances surrounding the performance of the Agreement, there can be
no dispute that Martin and Sons entered into the Agreement to facilitate the delivery of garlic to
a company in Maryland. See ECF 7-2, ¶ 21.
Thus, Tulkoff Food has made a prima facie showing that Maryland’s long-arm statute is
satisfied. I turn to the due process analysis.
B. Due Process Requirements
The Supreme Court has long held that personal jurisdiction over a nonresident defendant
is constitutionally permissible so long as the defendant has “minimum contacts with [the forum
state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and
substantial justice.’” International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Courts
have separated this test into individual “prongs,” first ascertaining whether the threshold of
“minimum contacts” is met, and then considering whether the exercise of jurisdiction on the
basis of those contacts is “constitutionally reasonable.” ALS Scan, 293 F.3d at 712.
Due process jurisprudence recognizes “two types of personal jurisdiction: general and
specific.” CFA Inst. v. Inst. of Chartered Fin. Analysts of India, 551 F.3d 285, 292 n. 15 (4th
Cir. 2009). The Fourth Circuit has explained:
General personal jurisdiction, on the one hand, requires “continuous and
systematic” contacts with the forum state, such that a defendant may be sued in
that state for any reason, regardless of where the relevant conduct occurred.
Specific personal jurisdiction, on the other hand, requires only that the relevant
conduct have such a connection with the forum state that it is fair for the
defendant to defend itself in that state.
Id. (citing, inter alia, Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-15,
(1984)) (internal citations omitted).
Both parties indicate in their submissions that only specific jurisdiction is appropriate
here. See ECF 7-1 at 5; ECF 12 at 6. I agree that general jurisdiction is inapplicable. There is
no basis to conclude, from the facts presented, that defendant’s contacts with Maryland are “so
constant and pervasive ‘as to render [it] essentially at home’” in Maryland. See Daimler AG v.
Bauman, ___ U.S. ___, 134 S. Ct. 746, 751 (2014) (quoting Goodyear Dunlop Tires Operations,
S.A. v. Brown, 564 U.S. 915, 919 (2011)) (alteration in Daimler). Accordingly, I shall dispense
with consideration of general jurisdiction and shall instead determine whether plaintiff has made
a prima facie showing of specific jurisdiction.
The Fourth Circuit has formulated a three-part test for courts to use in determining
whether there is specific jurisdiction over a defendant. The three prongs are: “(1) the extent to
which the defendant purposefully availed itself of the privilege of conducting activities in the
State; (2) whether the plaintiffs’ claims arise out of those activities directed at the State; and (3)
whether the exercise of personal jurisdiction would be constitutionally reasonable.” Consulting
Engineers, 561 F.3d at 278 (citing ALS Scan, 293 F.3d at 715); accord Carefirst of Maryland,
334 F.3d at 397.
The first element of the Consulting Engineers test, 561 F.3d at 278, purposeful availment,
“articulates the minimum contacts requirement of constitutional due process that the defendant
purposefully avail himself of the privilege of conducting business under the laws of the forum
state.” Id. The Supreme Court expounded on the minimum contacts requirement in Burger
King, supra, 471 U.S. 462. There, a franchisor sued a franchisee in Florida, alleging, inter alia,
breach of franchise obligations. Id. at 464-66. The defendants claimed the court lacked personal
jurisdiction as to them. Id. at 469. In the context of specific jurisdiction, the Court explained
that minimum contacts involve “significant activities within a State” or “‘continuing obligations’
between [the defendant] and residents of the forum.” Id. at 475-76 (citations omitted). Notably,
the “benchmark” is not the “foreseeability of causing injury in another State . . . .” Id. at 474
(emphasis in Burger King). Rather, it is “‘foreseeability . . . that the defendant’s conduct and
connection with the forum State are such that he should reasonably anticipate being haled into
court there.’” Id. (quoting World-Wide Volkswagen Corp v. Woodson, 444 U.S. 286, 295
The Burger King Court stated unequivocally that entering into a contract with a citizen of
the forum state “alone” cannot “automatically establish minimum contacts” over a nonresident
defendant. Burger King, 471 U.S. at 478 (emphasis in original). Conversely, the Court made
clear that “even a single act can support jurisdiction,” so long as that act “creates a ‘substantial
connection’ with the forum.” Id. at 475 n.18 (citation omitted). The Court said: “Although
territorial presence frequently will enhance a potential defendant’s affiliation with a State and
reinforce the reasonable foreseeability of suit there,” jurisdiction cannot be “avoided merely
because the defendant did not physically enter the forum State.”
Id. at 476 (emphasis in
original). The Burger King Court also observed that “it is an inescapable fact of modern
commercial life that a substantial amount of business is transacted solely by mail and wire
communications across state lines, thus obviating the need for physical presence within a State in
which business is conducted.” Id.
Nevertheless, the Court said, 471 U.S. 474: “[T]he constitutional touchstone remains
whether the defendant purposefully established ‘minimum contacts’ in the forum State.” “Th[e]
‘purposeful availment’ requirement ensures that a defendant will not be haled into a jurisdiction
solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts, or of the ‘unilateral activity
of another party or a third person.’” Id. at 475 (internal citations omitted); see also Unspam
Techs., Inc. v. Chernuk, 716 F.3d 322, 328 (4th Cir. 2013); ESAB Grp., Inc. v. Zurich Ins. PLC,
685 F.3d 376, 392 (4th Cir. 2012). A determination that the defendant has established minimum
contacts with the forum state amounts to a conclusion that “‘it is presumptively not unreasonable
to require him to submit to the burdens of litigation in that forum as well.’” Burger King, 471
U.S. at 476.
In Consulting Engineers, 561 F.3d at 278, the Fourth Circuit enumerated several
“nonexclusive factors,” applicable in the “business context,” which may help to “resolve whether
a defendant has engaged in such purposeful availment”:
whether the defendant maintains offices or agents in the forum state;
whether the defendant owns property in the forum state;
whether the defendant reached into the forum state to solicit or initiate
whether the defendant deliberately engaged in significant or long-term
business activities in the forum state;
whether the parties contractually agreed that the law of the forum state would
whether the defendant made in-person contact with the resident of the forum
in the forum state regarding the business relationship;
the nature, quality and extent of the parties’ communications about the
business being transacted; and
whether the performance of contractual duties was to occur within the forum.
(Internal citations omitted).
The Court cautioned, however, that these factors are “not
susceptible of mechanical application.” Id. The Fourth Circuit also said, id: “[I]f a court finds
that the defendant has availed himself of the privilege of conducting business in the forum,
specific jurisdiction exists.”
As noted, Tulkoff Food has the burden of demonstrating a prima facie showing of
personal jurisdiction over Martin and Sons. Grayson, 816 F.3d at 268. Tulkoff Food argues that
Martin and Sons has engaged in “significant business activities with Tulkoff [Food] in Maryland
since 1993.” ECF 12 at 8. Among other things, Tulkoff Food points to the twenty-year business
relationship between it and Martin and Sons, worth more than $11.5 million; the ongoing
communications between the parties as part of that relationship; and performance of the
Agreement by defendant in Maryland. Id. at 7-13. In this regard, plaintiff alleges that all but
nine of the 36 FCLs of minced Chinese garlic were delivered to it in Maryland. ECF 1, ¶ 17.
Given these contacts, and others, Tulkoff Food argues, ECF 12 at 9: “Like the defendant in
Burger King, there is nothing ‘random,’ ‘fortuitous,’ or ‘attenuated’ about Martin Spices [sic]
long-term contacts with Maryland.” (Citing Burger King, 471 U.S. at 480).
Martin and Sons contends that it “does not have sufficient minimum contacts” and
therefore it “would not be fair to require Martin and Sons to defend itself in this action.” ECF 71 at 9. With respect to the issue of performance of the Agreement, Martin and Sons argues that
the Agreement “did not require any performance by Martin and Sons in Maryland.” ECF 13 at 4
(emphasis added). In support, Martin and Sons points to the language of the Agreement, which
provides: “Proper execution of this contract is the responsibility of the shipper.” ECF 1-1. In
light of this terminology, Martin and Sons notes that it was not the shipper, and that it was the
shipper that performed in Maryland. And, Martin and Sons contends that it performed all of its
duties under the Agreement in New York. ECF 13 at 3.
In addition, Martin and Sons argues that it has few other contacts with Maryland. It
points out that it did not have any in-person contacts in Maryland concerning the Agreement and
that all of its negotiations concerning the Agreement were by email. Id. at 3. And, Martin and
Sons points out that Tulkoff Food does not claim that defendant maintains offices or agents in
Maryland, that defendant owns property in Maryland, or that defendant agreed that the
Agreement would be governed by Maryland law. Id. at 2; see Consulting Engineers, 561 F.3d at
278. On these facts, Martin and Sons argues: “Plaintiff cannot establish that with respect to the
transaction at issue, Martin and Sons purposefully availed itself of the privilege of conducting
activities in Maryland.” ECF 13 at 5.
In my view, Tulkoff Food has made a prima facie showing of specific jurisdiction as to
Martin and Sons.
As an initial matter, performance of the Agreement was to occur in Maryland. See
Consulting Engineers, 561 F.3d at 278. As discussed, supra, under the Agreement, Martin and
Sons agreed to sell 36 FCLs of minced Chinese garlic to Tulkoff Food, with delivery in
Maryland. See ECF 1-1.
In arguing that a shipper, but not Martin and Sons, was to perform in Maryland, Martin
and Sons relies on the following language of the Agreement: “Proper execution of this contract is
the responsibility of the shipper.” ECF 13 at 3; see ECF 1-1. Defendant’s argument that it had
no performance obligations in Maryland belies the plain meaning of the Agreement and common
Martin and Sons cannot dispute that it agreed to sell minced Chinese garlic to Tulkoff
Food in Maryland. See ECF 1-1. And, Martin and Sons cannot dispute that it had a role in the
ultimate delivery of the minced Chinese garlic to Maryland. To be sure, it appears that Martin
and Sons did not contract directly with the shipper. Nor did it employ the drivers of the tractortrailers that transported the containers from the port or the delivery truck drivers. But, Mr.
Martin himself explained in his Declaration that Martin and Sons contracted with TRA Spice
“[i]n facilitating the shipments between Sanxing and Tulkoff [Food].” ECF 7-2, ¶ 21 (emphasis
added). And, Mr. Martin averred that TRA Spices was involved with various aspects of the
delivery of the garlic to Maryland. Id. ¶ 22; see id. ¶¶ 19-20. Moreover, defendant’s emails to
Tulkoff Food, providing shipping information as to the containers and updates on the shipments,
further indicate that Martin and Sons played a role in the deliveries to Maryland of the garlic.
See ECF 12-1 at 7-97.
Viewing the facts in the light most favorable to Tulkoff Food, Martin and Sons agreed to
deliver minced Chinese garlic to plaintiff in Maryland and took steps to provide for that delivery.
This establishes a strong contact with Maryland. See, e.g., K-V Pharm. Co. v. J. Uriach & CIA,
S.A., 648 F.3d 588, 594 (8th Cir. 2011) (“A delivery term that requires a nonresident defendant
to deliver an item to a plaintiff in the plaintiff’s forum state supports the existence of personal
jurisdiction over the nonresident defendant.”); Chloe v. Queen Bee of Beverly Hills, LLC, 616
F.3d 158, 167 (2d Cir. 2010) (finding that defendant had minimum contacts with New York
where defendant, inter alia, engaged in fifty-two transactions in which merchandise was shipped
into New York); Health Commc'ns, Inc. v. Mariner Corp., 860 F.2d 460, 464-65 (D.C. Cir.
1988) (explaining that a “seller ‘reaching out’ to a distant state in order to do business
there . . . purposefully avail itself of the forum state law”).
In addition, the long-term relationship between Martin and Son and Tulkoff Foods
provides additional evidence that Martin and Sons has contacts with Maryland sufficient to exert
Consulting Engineers, 561 F.3d at 278.
Martin and Sons has been
involved in a business relationship with Tulkoff Food that dates to 1993, spanning more than
twenty years. ECF 12-1, ¶ 11. During this relationship, the parties have agreed to at least 27
sales booking contracts, through which Martin and Sons has sold and delivered to Tulkoff Food
an aggregate of more than $11.5 million in spices. Id. ¶¶ 11, 13. The long duration and
substantial nature of Martin and Sons’s dealings with Tulkoff Food indicates that Martin and
Sons has purposefully availed itself of conducting business in Maryland; the contacts between
Martin and Sons and Maryland are neither “random” nor “fortuitous”. Consulting Engineers,
561 F.3d at 278.
The parties have also maintained extensive communications regarding their ongoing
business dealings. As noted, according to Tulkoff, Martin and Sons and Tulkoff Food have been
“in regular contact” since 1993. ECF 12-1, ¶ 17. Tulkoff asserts that this contact has led to the
exchange of “hundreds or perhaps thousands of communications both into and out of
Maryland . . . .” Id. Although representatives of Martin and Sons may have seldom – if ever –
traveled to Maryland, these communications into and out of Maryland nevertheless tend to show
that Martin and Sons purposefully reached out to Maryland in the course of conducting its
business. Consulting Engineers, 561 F.3d at 278.
The Eighth Circuit’s decision in K-V Pharm. Co. v. J. Uriach & CIA, S.A., 648 F.3d 588,
594 (8th Cir. 2011), is informative.
In that case, K-V Pharm Co., a pharmaceutical
manufacturer, brought suit against J. Uriach & CIA, S.A. (“Uriach”), a Spanish corporation, in
the United States District Court for the Eastern District of Missouri. Id. at 591. The plaintiff
alleged claims for breach of contract and misappropriation of trade secrets. Id. Uriach moved to
dismiss, inter alia, for lack of personal jurisdiction.
defendant’s motion and the plaintiff appealed. Id.
The district court granted the
The Eighth Circuit determined that there was personal jurisdiction over Uriach in
Missouri, finding that there were sufficient contacts between defendant and Missouri. Id. at 59697. Those contacts included that the parties entered into “a long-term product-development
contract that would require Uriach to have a continuing relationship with Missouri”; the parties
had “engaged in a face-to-face meeting in Missouri to negotiate an amendment to their contract”;
and the contract at issue required defendant to ship a product to Missouri. Id. at 595-96.
Similarly, the parties have maintained a business relationship dating to 1993, involving a
substantial sum of money; they have engaged in ongoing communications regarding their
business relationship since 1993; and, most recently, Martin and Sons agreed to sell 36 FCLs of
garlic to Tulkoff, with delivery in Maryland.
To be sure, Martin and Sons correctly points out that Tulkoff Food has not argued the
existence of several of the factors articulated by the Fourth Circuit in Consulting Engineers.
And, Martin and Sons is also correct that the weight of some of the arguments advanced by
Tulkoff Food is not as persuasive as others in demonstrating sufficient contacts between Martin
and Sons and Maryland. But, defendant’s conclusion that this counsels against finding that
Martin and Sons is subject to personal jurisdiction in Maryland fundamentally misapprehends the
personal jurisdiction inquiry.
As the Court expressly stated in Consulting Engineers, the factors are “not susceptible to
mechanical application.” Id. at 278. And, as stated by the Supreme Court in Burger King, “even
a single act can support jurisdiction.” Id. at 475 n. 18.
Tulkoff Food has made a prima facie showing that Martin and Sons is subject to specific
jurisdiction in Maryland. See Grayson, 816 F.3d at 268. In the light most favorable to plaintiff,
the facts presented by Tulkoff Food warrant the conclusion that Martin and Sons has “availed
[itself] of the privilege of conducting business in” Maryland. Consulting Engineers, 561 F.3d at
278. In other words, the totality of the contacts between Martin and Sons and Maryland make it
such that it was foreseeable to Martin and Sons that it could “reasonably anticipate being haled
into court” in Maryland. Burger King, 471 U.S. at 474 (quoting World Wide Volkswagen, 444
U.S. at 295).
The second prong of the Consulting Engineers test provides that the defendant’s contacts
with the forum state must form the basis of the suit. Consulting Engineers, 561 F.3d at 278–79.
As the Supreme Court reiterated in Goodyear, a corporation’s “‘continuous activity of some sorts
within a state . . . is not enough to support the demand that the corporation be amenable to suits
unrelated to that activity.’” 564 U.S. at 927 (quoting International Shoe, 326 U.S. at 318). And,
in Helicopteros, supra, 466 U.S. at 415-16, the Supreme Court determined that, because the
parties had conceded that the cause of action in the case did not arise out of the defendant’s
activity in the state, the only avenue for personal jurisdiction was general jurisdiction.
Defendant did not address the second prong of the Consulting Engineers test in either of
its submissions. See ECF 7-1; ECF 13. But, as Tulkoff Food contends, it is clear that the dispute
in this case concerning the Agreement is directly related to Martin and Sons’s contacts with
Maryland. ECF 12 at 13-14.
The Agreement specifically requires the delivery of garlic to Tulkoff Food in Maryland.
It underlies the dispute before the Court. Thus, the second prong is satisfied.
Finally, the third prong’s constitutional reasonableness inquiry permits a defendant “who
purposefully has directed his activities at forum residents” to defeat jurisdiction, if he can
“present a compelling case that the presence of some other considerations would render
jurisdiction unreasonable.” Burger King, 471 U.S. at 477. “This prong of the analysis ‘ensures
that litigation is not so gravely difficult and inconvenient as to place the defendant at a severe
disadvantage in comparison to his opponent.’” Tire Engineering & Distribution, LLC v.
Shandong Linglong Rubber Co., Ltd., 682 F.3d 292, 303 (4th Cir. 2012) (quoting CFA Inst., 551
F.3d at 296) (internal quotation marks omitted), cert. denied, ___ U.S. ___, 133 S.Ct. 846
Defendant did not assert in either of its submissions that it would be difficult or
inconvenient for it to litigate in Maryland. See ECF 7-1; ECF 13. Accordingly, because
defendant must present a compelling case that the maintenance of jurisdiction in this district
would be unreasonable to it, and it did not do so, the third prong is satisfied. See Burger King,
471 U.S. at 477.
In sum, I am satisfied that Tulkoff Food has made the requisite prima facie showing of
personal jurisdiction over Martin and Sons in Maryland. Accordingly, I shall DENY the Motion
(ECF 7), without prejudice. At trial, Tulkoff Food will bear the burden of proof as to this issue.
An Order follows, consistent with this Memorandum Opinion.
Date: July 7, 2017
Ellen L. Hollander
United States District Judge
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