Pharmabiodevice Consulting LLC v. Evans

Filing 25

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 7/28/2014. (rss, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Soutltern Division

PHARMABIODEVICE
LLC

*

CONSULTING,

*
*

Plaintiff,

Case No.: GJH-14-00732

v.

*
*

LAVERNE EVANS

*
Defendant.

*
*

*

*

*

*

*

*

*

MEMORANDUM
This Memorandum
Jurisdiction,

unnecessary in this case.

memoranda,

*

*

Motion to Dismiss for Lack of

ECF Nos. 18, 24; and Plaintiffs

Motion to Dismiss, ECF Nos. 23, 23-2.
See Local Rule 105.6.

*

OPINION

and Order addresses Defendant's

ECF No. 17, and supporting

Opposition to Defendant's

*

*

I find that a hearing is

For the reasons stated below, Defendant's

Motion to Dismiss for Lack of Jurisdiction is GRANTED.

I.

BACKGROUND
Pharmabiodevice

Evans ("Evans"),

Consulting,

LLC ("Plaintiff')

a former independent

brought this action against Laverne

contractor of Plaintiff, alleging various breach of

contract and tort claims arising from their soured business relationship.
finn that provides staffing support in the pharmaceutical,

PlaintitT is a consulting

biotechnology. and medical device

industries with its principle place of business in Gaithersburg. Maryland.

ECF No. I at ~ 5.

Evans is a resident of Florissant, Missouri, and, at all times relevant to this complaint performed
all of her work responsibilities in Lexington, Kentucky.
14: ECF No. 17 at ~ 4: ECF No. 17-1
On September

with Plaintiff.

independent

consulting

Plaintiff.

Id. at

6: see also ECF No. 23-1 at ~

'1

6, 2013. Evans entered

Agreement")

Id. at

into a consulting

agreement

(""Consultant

9. As part of that agreement, Evans agreed to provide

services to Plaintiff's

clients through staffing placements made by

See ECF No. 1-1 at ~ A. For successful placements, Evans agreed to pay Plaintiff a

$50,000 finder's
confidentiality

fee.

ECF No. 1 at ~ 9.

provision

that required

Evans' Consultant Agreement also contained a

Evans to treat information

compensation. and benefits as confidential.

relating to her salary,

Id. at ~ 19.

On September 16. 2013, Plaintiff successfully placed Evans at a company called Oxford
Global Resources, Inc. ("Oxford'").

ECF No. 23-1 at

'1

16. That placement required Evans to

work for a client of Oxford's known as Coldstream Labs ("Coldstream").
Evans' placement with Oxford/Coldstream
December 31. 2013. Id.

was to span from September

ECF No. 1-2 at ~ 1.
16, 2013 through

During that time, Evans performed all of her work for Coldstream in

Lexington, Kentucky and performed no work for Coldstream, Oxford. or Plaintiff in Maryland.
See e.g.. ECF No. 23-1 at ~ 14; ECF No. 17 at ~ 4; ECF No. 17-1 ~ 2. In fact. at the time this
lawsuit was filed, Evans had not been in Maryland for approximately three years. ECF No. 17-1
4.

Nor did Evans have any meaningful or sustained financial dealings in Maryland.

Id.

Indeed, Evans' only financial connection to Maryland involved her cashing two checks that were
sent by Plaintiff from Maryland to Evans' home in Missouri for compensation related to her
work for Coldstream.

See ECF No. 23-1 at 9-11; see also ECF No. 17-1 at

'1 4.

Aside from

receiving those checks, Evans only other contact with Maryland involved periodic telephone

2

calls and e-mails

with the owner of Pharmabiodevice,

Charity Ogunsanya

("Ogunsanya").

See

ECF No. 23-1.
PlaintifT was paid $70,000

ECF No. I at ~ 9. Sometime

to both Oxford and Coldstream.
20-21.

Oxford

then notified

2013 due to unexpected
as a direct employee

Plaintiff

promising

through

prohibited

her from working

Evans confirmed

at ~ 30.

immediately

informed

for Oxford or Coldstream.

10. 2013,

continued

Plaintiff

informed

As a result, PlaintifT sought to reduce Evans'

On January

rate reduction.

as a consultant

on November

Oxford began recruiting

Evans

ld. at

that

her

Consultant

'I~ 29.
26.

'11
18.

Evans

ld. at ~ 28.
Agreement

On December

7, 2013,

into a new contract

Evans
Oxford's

that Coldstream
contracted

ld. The following

ld. at

its

rate with Plaintiff.

Id.

3

ld. Evans

day. Evans notified
31,2013.

that Evans pay the $50,000 finders'

ld.

with

had reduced

hourly rate from $45 to $35.

hom Plaintitf effective on December

30, 2014. PlaintifT requested
Id. Evans refused.

services

to perform under the original agreement.

hourly rate with Oxford, thereby reducing

that she was resigning

Evans'

counsel that she would not be entering

and presumably

refused to accept the proposed

at Oxford.

that it would terminate

Id. at

Agreement.

to pay her at a rate of $55 per hour - ten dollars more than the

with Plaintiff's

On December

of her Consultant

her hourly rate

but still less than the rate paid by Oxford to Plaintiff.

counsel,

Oxford or Coldstream

2013, Evans communicated

in violation

by Evan at

by Plaintiff in the amount of $45 per

Id. at ~ 23. Shortly thereafter.

expenses.

Plaintiff,

in mid-November

purportedly

rate paid to Evans by Plaintiff

contracted

for the work performed

Id. at ~ 10. In turn, Evans was paid biweekly

Coldstream.
hour.

per hour by Oxford

Plaintiff

Id at ~ 15.

fee for placing her

On March 12, 2014, Plaintiff instituted this action against Evans raising various contract
and tort claims. First, Plaintiff contends Evans breached her Consultant Agreement by (I) failing
to pay Plaintiff the $50.000 finder's fee for her placement at Oxford and (2) disclosing her
confidential salary information to Oxford and Coldstream.

Id. at ~~ 4-34.

Second, Plaintiff

contends that Evans tortiously interfered with its existing business relationships with Oxford and
Coldstream by soliciting their business directly in contravention of her Consultant Agreement.
Id at ~~ 35-39. Finally, Plaintiff contends that Evans' actions amounted to common law fraud.
Id. at ~ 40-44.
Evans has moved to dismiss Plaintiffs
Court lacks personal jurisdiction
Maryland.

complaint on various grounds, including that the

over Evans given her lack of contacts with the State of

See ECF No. 17. For the reasons discussed herein, the Court agrees that it lacks

personal jurisdiction over Evans. Accordingly. Plaintiffs complaint is dismissed.l
II.

STANDARD OF REVIEW
A motion to dismiss for lack of personal jurisdiction arises under Fed.R.Civ.P. 12(b)(2).

"When a court's personal jurisdiction

is properly challenged by a Rule 12(b)(2) motion, the

jurisdictional question thus raised is one for the judge, with the burden on the plaintiff ultimately
to prove the existence of a ground for jurisdiction by a preponderance of the evidence."
V.

Combs

Bakker, 886 F.2d 673, 676 (4th Cir. 1989). Discovery and an evidentiary hearing are not

required to resolve a motion under Rule I2(b )(2). See generally 58 Wright & Miller, Federal
Practice & Procedure ~ 1351, at 274-313 (3d ed.2004, 2012 Supp.).

Rather, the district court

Because the Court grants Evans' motion to dismiss for lack of personal jurisdiction. it is not
necessary to reach the other grounds argued by Evans for dismissing Plaintitrs complaint,
namely that the Court lacks subject matter jurisdiction under Fed.R.Civ.P. I 2(b)( 1) and that
Plaintiffhas failed to state claims upon which relief can be granted under Fed.R.Civ.P. 12(b)(6).
See ECF No. 18 at 5-13.
1

4

may address the question of personal jurisdiction as a preliminary matter, ruling 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). In
that circumstance,

the plaintiff need only make "a prima facie showing of a sufficient

jurisdictional basis to survive the jurisdictional challenge." Id.
"In deciding whether the plaintiff has made the requisite showing, the court must take all
disputed facts and reasonable inferences in favor of the plaintiff."

Carefirst of Maryland, Inc. v.

Carefirst Pregnancy Centers, Inc., 334 F.3d 390, 396 (4th Cir. 2003). Notably, "district courts
are not required to look solely to the plaintiffs

proof in drawing those inferences." Mylan

Laboratories, Inc. v. Akzo, N. V, 2 F.3d 56, 62 (4th Cir. 1993). However, "(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) (citation omitted).
Alternatively,
jurisdictional

the Court may, in its discretion, permit limited discovery as to the

issue. See Mylan Laboratories, 2 F.3d at 64. Then, "the court may resolve the

Durisdictional] challenge on the basis of a separate evidentiary hearing, or may defer ruling
pending receipt at trial of evidence relevant to the jurisdictional question."
676.

Plaintiff, however, has not requested jurisdictional

discovery, nor is such discovery

necessary given the numerous exhibits and affidavits submitted by the parties.

5

Combs, 886 F.2d at

III.

DISCUSSION
A.

Request to Amend

Under Fed.R.Civ.P. 15(a), a party may amend its pleading as a matter of course if less
than twenty-one days have passed since service of a motion to dismiss. See Fed.R.Civ.P
I 5(a)(l )(8). Here, Plaintiff has sought to amend its complaint within the permitted twenty-one
days by attempting to add a number of allegations to its complaint by including them in the body
of its opposition to Evans' motion to dismiss. See ECF No. 23-2 at 9. Although inartful and not
technically filed as a First Amended Complaint, the Court will accept Plaintiff's purported
"amendment" and will incorporate the additional allegations into Plaintiff's complaint as if they
had originally been included therein. It should be noted, however, that none of these additional
allegations do anything to cure the jurisdictional deficiencies that plague Plaintiff's complaint
and that necessitate its dismissal.
B.

Personal Jurisdiction

Rule 4(k)(I)(A) of the Federal Rules of Civil Procedure authorizes a federal district court
to exercise personal jurisdiction over a defendant in accordance with the law of the state where
the district court is located. Carejirsl, 334 F.3d at 396; see also Fed.R.Civ.P. 4(k)(I)(A).
Therefore, "to assert personal jurisdiction over a nonresident defendant, two conditions must be
satisfied: (l) the exercise of jurisdiction must be authorized under the state's long-arm statute;
and (2) the exercise of jurisdiction must comport with the due process requirements of the
Fourteenth Amendment."

/d. It is thus appropriate to begin with an analysis of Maryland's

Long-Arm Statute. See Mackey v. Compass Mklg., Inc., 391 Md. 117,141, n. 6 (2006) (although
the "long-arm statute is coextensive with the limits of personal jurisdiction set by the due process
clause," it is not "permissible to dispense with analysis under the long-arm statute").

6

1.

Maryland Long-Arm Statute

The Maryland Long-Arm Statute provides, in relevant part, that:
(b) A court may exercise personal jurisdiction over a person, who directly or by an agent:
(l) Transacts any business or performs any character of work or service in the
State;
(2) Contracts to supply goods, food, services, or manufactured products in the
State;
(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 State;
(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 in
writing.
Md.Code Ann., Cts. & Jud. Proc.

S 6-103(b).

"To satisfy the long-arm prong of the analysis, a

plaintiff must specifically identify a statutory provision that authorizes jurisdiction, either in his
complaint or in opposition to a Rule 12(b)(2) motion." Hau.~feld v. Love Funding Corp., No. 140142,2014 WL 1573009, at *2 (D. Md. Apr. 18,2014); see also Ottenheimer Publishers, Inc. v.
Playmore, Inc., 158 F.Supp.2d 649, 652 (D. Md. 2001); Johansson Corp. v. Bowness Const. Co.,
304 F. Supp. 2d 701, 704, n.l (D. Md. 2004). Although Plaintiff fails to identify the applicable
provision(s) of the Maryland Long-Arm Statute, it argues generally that jurisdiction is proper
because "[Evans] caused tortuous [sic] injury in Maryland by an out-of-state act [and] regularly
solicits business in Maryland and derives substantial revenue from services in Maryland." ECF
No. 23 at 1. Thus, while Plaintiff does not explicitly invoke a specific provision of the Maryland
Long-Arm Statute, when the allegations are viewed in the light most favorable to Plaintiff, it is
7

clear that Plaintiff is attempting to rely on

S 6-1 03(b)( 4) as its sole

basis for personal jurisdiction

under the Maryland Long-Arm Statute. See Md.Code Ann., Cts. & Jud. Proc.

S 6-103(b)(4)

(a

court may exercise personal jurisdiction over a person who "[ c]auses 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 State").
Essentially, Plaintiff argues that jurisdiction under subsection (b)(4) is proper because
"Evans purposefully and regularly solicited Charity Ogunsanya, a Maryland resident and owner
ofPharmabiodevice,

also a Maryland company, to persuade Ogunsanya to provide an

employment opportunity to Evans" by "regularly initiat[ing] telephone calls and emails to
Plaintiff in Maryland .... " ECF No. 23-2 at 5. To support this contention, Plaintiff submitted a
five-page affidavit from Ogunsanya, as well as numerous exhibits, which purportedly reflect
Evans' contacts with Maryland. These contacts include two telephone calls and a handful of emails exchanged between Evans and Ogunsanya. See ECF No. 23-1. However, isolated
telephone calls and e-mails made from outside Maryland into the state, without more, are
insufficient to demonstrate that Evans regularly solicited business in Maryland for purposes of
establishing personal jurisdiction over an out-of-state defendant like Evans. See e.g., Stover v.
O'Connell Associates, Inc., 84 F.3d 132, 137 (4th Cir. 1996) (recognizing that "the use of a
telephone to facilitate transactions between remote locations serves as an alternative to presence
[and] [t]o conclude that such activity establishes presence in a state would upset generally held
expectations"); Ritz Camera Centers, Inc. v. Wentling Camera Shops, Inc., 982 F. Supp. 350,
354 (D. Md. 1997) (no long-arm jurisdiction where "'contacts' consist entirely of telephonic
(voice and facsimile) exchanges and mail correspondence from without the state"); Leather

8

Masters (PVT) Ltd v. Giampier Ltd, 836 F.Supp. 328, 331 (D. Md. 1993) ("without more,
communications made from outside the State to a Maryland resident are not enough to justify the
exercise of personal jurisdiction over an out-of-state defendant"); Coating Engineers. Ltd v.
Electric Motor Repair, Co., 826 F. Supp. 147, 149 (D. Md. 1993) (defendant's telephone
conversations with party in Maryland did not constitute purposeful activity within Maryland to
confer jurisdiction under the Maryland long arm statute); Craig v. General Finance Corp., 504
F.Supp. 1033, 1038-39 (D. Md. 1981) (in personam jurisdiction does not exist over person who
placed various telephone calls and mailed letters to forum state).2
Moreover, there is nothing in Ogunsanya's affidavit, the corresponding exhibits, or any
of Plaintiffs

filings that refutes the now undisputed facts that Evans (1) performed all of her

work in Lexington, Kentucky (see ECF No. 17-1 at ~ 2); (2) performed no work in Maryland
(id); (3) had no work obligations in Maryland (id at ~ 3): (4) had not been in Maryland in over
three years (id at ~ 4); and (5) had no financial dealings in Maryland, aside from receiving two
checks sent by Plaintiff from Maryland. Id; see also ECF No. 18 at 2. Under these facts and
circumstances, Evans' periodic and isolated e-mails and telephone calls into Maryland made
2 Plaintiffs reliance on CoStar Realty Info., Inc. v. Meissner, 604 F. Supp. 2d 757 (D. Md. 2009)
to support its argument that Evans' out-of-state e-mails and telephone calls directed into
Maryland are sufficient to confer personal jurisdiction is misplaced. In CoStar, the out-of-state
defendant's contacts with Maryland were far more meaningful and substantial than Evans'
periodic e-mails and telephone calls to Plaintiff. For example, in addition to e-mails and
telephone calls, the out-of-state defendant in CoStar entered into a licensing agreement with the
plaintiff that contained a forum selection clause that specifically stated that the "federal and state
courts located in the State of Maryland shall be the exclusive jurisdiction for any action brought
against [defendant]''' Id at 764. Furthermore, the out-of-state defendant also "repeatedly
accessed [p]laintiffs' Maryland-based servers" and the unauthorized sharing of that access was
the basis of plaintiffs complaint. Id at 766. These contacts with Maryland are far more
extensive than the two telephone calls and periodic e-mails relating to work done entirely outside
of Maryland that Plaintiffrelies on to establish personal jurisdiction over Evans. CoStar is
therefore unhelpful to Plaintiff.

9

from outside the state, without more, are wholly insufficient to establish personal jurisdiction
over Evans as an out-of-state defendant.
This Court also lacks personal jurisdiction over Evans for Plaintiffs failure to comply
with Section 6-103(a) of Maryland's Long-Arm Statute. Section 6-103(a) requires that a
plaintiffs cause of action arise from the defendant's contacts with the forum state. See Md.Code
Ann., Cts. & Jud. Proc.

S 6-103(a)

("[i]fjurisdiction

over a person is based solely upon [a]

section [in the long-arm statute], he may be sued only on a cause of action arising/rom any act
enumerated in this section") (emphasis added). This is not the case here: Pharmabiodevice's
causes of action do not arise from Evans' fleeting contacts with Maryland. To be certain, the emails attached to Ogunsanya's affidavit do not directly relate to the facts underlying Plaintiffs
complaint - namely, Evans' dealings with Oxford and Coldstream and the alleged improprieties
that tainted those dealings. Instead. the e-mails (by and large) involve discussions between
Evans and Ogunsanya concerning Evans' resume and employment goals. See generally ECF
No. 23-1 at 14-38. Moreover, the e-mails were all sent between July 25, 2013 and September 15,
2013 - before Evans was even placed as a consultant at Oxford/Coldstream on September 16.
2013.

See ECF No. 23-1 at

16.

Furthermore, far from describing "regular" telephone calls initiated by Evans into
Maryland, Ogunsanya's affidavit provides only vague details about two telephone conversations
that occurred between July 2013 and December 2013. Indeed, one of these conversations
occurred sometime in July 2013 and was largely unrelated to the events underlying this
litigation. See ECF No. 23-1 at [~4-9. Accordingly, Pharmabiodevice's

claims do not arise

from Evans' isolated telephone calls and sporadic e-mails into Maryland as required by Section
6-103(a) of Maryland's Long-Arm Statute. These contacts are therefore insufficient to establish

10

personal jurisdiction over Evans under Maryland's Long-Arm Statute. See Glynn v. EDO Corp.,
536 F. Supp. 2d 595, 605 (D. Md. 2008) ("the fact that [defendants] may have placed several
phone calls or sent several e-mails to Maryland is of little consequence because those calls were
unrelated to the events underlying this litigation"); Beyond Sys., Inc. v. Kennedy W Univ., No.
05-2446,2006

WL 1554847, at *6 (D. Md. May 31, 2006) (finding that defendants' unrelated e-

mail "contacts do not satisfy (b)(I) [] because the statute also requires that the cause of action
arise from the act enumerated in the section, i. e., the transaction of business or performance of
work or services,,).3
Finally, Plaintiff makes two additional jurisdictional arguments that must be addressed
briefly. First, Plaintiff appears to contend that jurisdiction under ~ 6-103(b)(4) is proper because
"Evans realized substantial revenue as a result of her initiation of and regular solicitation of
Plaintiff in Maryland."

ECF No. 23-2 at 5. To support this contention, Plaintiff attached to

Ogunsanya's affidavit two checks she sent to Evans for services Evans performed pursuant to her
Consultant Agreement.

For jurisdiction to lie under the "substantial revenue" portion of ~ 6-

103(b)( 4), however, Evans must have "derive[ d] substantial revenue from ... services ... used
or consumed in [Maryland]."

See Md.Code Ann., Cts. & Jud. Proc. ~ 6-103(b)(4).

Even

assuming that the revenue involved in this case ($9,427.50) amounted to "substantial revenue"

As for the second call described in Ogunsanya's affidavit, it is unclear whether Evans even
initiated this call. See ECF No. 23-1 at'126. For purposes of establishing personal jurisdiction
under Maryland' s Long-Arm Statute. the relevant focus is on the "persistent course of conduct"
of the defendant (Evans), not the plainIUT(Pharmabiodevice). See Gallman v. Sovereign Equity
Grp., Inc., No. 11-2750,2012 WL 2923170, at *6 (D. Md. July 17,2012) ("The Court reiterates
that it must focus on the 'persistent course of conduct' of the defendant, rather than the
plaintiffs."). Regardless, even assuming Evans initiated the second call and that it related to the
facts underlying this action, it would not change the Court's conclusion that, without more,
Evans' isolated e-mail and telephone communications made from outside the State to a Maryland
resident are not enough to justify the exercise of personal jurisdiction over an out-of-state
defendant like Evans. See Leather Masters (PVT) Ltd., 836 F.Supp. at 331.
3

11

for purposes of

9 6-1 03(b)( 4),

it is undisputed that the services performed by Evans were not

"used or consumed" in Maryland. See e.g., ECF No. 23-1 at ~ 14: ECF No. 17 at ~ 4; ECF No.
17-1 '12. Indeed, Ogunsanya's affidavit even confirms that Evans performed her work for
Coldstream "at her project location in Kentucky." ECF No. 23-1 at ~ 28. Accordingly, Evans
did not derive any revenue from services used or consumed in Maryland; rather, she derived
revenue from services used or consumed in Kenlucky. The "substantial revenue" portion of

9 6-

103(b)( 4) is therefore inapplicable.
Next, Plaintiff argues in passing that this Court has personal jurisdiction over Evans
because her Consultant Agreement contained a Maryland choice of law provision. See ECF No.
23 at ~ 1. The inclusion of a choice of law provision, however, is just "one factor that a court
may take into account in determining whether the exercise of personal jurisdiction is justified,
but it is no more than that." Consulling Engineers C01p., 561 F.3d at 281; see Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 482 (1985) ("[S]uch a [choice oflaw] provision standing
alone would be insufficient to confer [personal] jurisdiction.").

Given Evans' lack of relevant

contacts with Maryland, the Court is not persuaded that the inclusion of a Maryland choice of
law provision in Evans' Consultant Agreement evinces any intent on the part of Evans to submit
herself to personal jurisdiction in the state whose law governs the interpretation of her Consultant
Agreement.

See Consulling Eng'rs C01p., 561 F.3d at 281 (affirming district court's dismissal of

lawsuit because plaintiff failed to demonstrate that defendants had sufficient contacts, despite the
existence of a choice of law provision in a contract between the parties); see also Indem. Ins.
C01p. v. Jade Presenls, LLC, No, 13-2216,2013 WL 5376592, at *1 (D. Md. Sept. 24, 2013).

12

2.

Due Process

Even assuming, arguendo, the Plaintiff satisfied the first condition necessary to establish
personal jurisdiction over a nonresident defendant (i.e. applicability of the Maryland Long-Arm
Statute), the inquiry would not end there. The Court must also consider whether the exercise of
jurisdiction over Evans would violate the Due Process Clause of the Fourteenth Amendment.
The Supreme Court has drawn a distinction between "specific" jurisdiction and "general"
jurisdiction.

General jurisdiction, which permits a court to subject a non-resident defendant to a

suit in the forum wholly unrelated to any contact it has with the forum, exists only where the
foreign defendant's in-state activities amount to "continuous and systematic" contact with the
state. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-15 (1984).
Specific jurisdiction, on the other hand, permits a court to exercise jurisdiction over a defendant
when a cause of action arises out of the defendant's minimum contacts with the forum. Id. at
466 U.S. 414.
The level of "minimum contacts" necessary to confer general jurisdiction is significantly
higher than that required for specific jurisdiction.

See ESAB Group, Inc. v. Centricut, Inc., 126

F.3d 617, 623 (4th Cir. 1997). Indeed, it is only where a defendant's in-state operation is "so
substantial and of such a nature as to justify suit against it on causes of action arising from
dealings entirely distinct from those activities" that it is proper for a court to exercise general
jurisdiction over that defendant. Int 'I Shoe Co. v. State of Wash., Office of Unemployment Compo
& Placement, 326 U.S. 310,318 (1945). "Conduct of single or isolated items of activities in a
state in the corporation's behalf are not enough to subject it to [general jurisdiction]." Id. at 317.
"[B]road constructions of general jurisdiction should be generally disfavored," Nichols

13

V.

G.D.

Searle & Co., 991 F.2d 1195, 1200 (4th Cir. 1993), and courts will typically only assert general
jurisdiction over nonresidents "who are essentially domiciled within the forum state."
Elec. Braking Servs., LId. v. E-Bus. Solulions & Servs., 285 F. Supp. 2d 686,689 (D. Md. 2003)
(quoting Corry v. CFM Majestic. Inc., 16 F.Supp.2d 660, 663 (E.D. Va. 1998)). The question
then "is whether a defendant's contacts with the forum state are so substantial that they amount
to a surrogate for presence and thus render the exercise of sovereignty just, notwithstanding the
lack of physical presence in the state." ESAB Group, Inc., 126 F.3d at 623.
Although Plaintiff makes no speci fic reference to notions of general jurisdiction in its
pleadings, to the extent Plaintiff relies on general jurisdiction as its basis for personal jurisdiction
over Evans, such an attempt fails. It is undisputed that Evans is domiciled in Missouri and, at the
time this action was filed, had not even been to Maryland in approximately three years. Quite
simply, Evans' contact with Maryland was most assuredly not continuous or systematic, but was,
at most, isolated and sporadic. Under these circumstances, any attempt to base personal
jurisdiction on principles of general jurisdiction would be borderline frivolous. See Gallman v.
Sovereign Equity Grp., Inc., No. 11-2750,2012 WL 2923170, at *7 (D. Md. July 17,2012)
("Plaintiffs contend that general jurisdiction over Barnes is proper based on her contacts with
Plaintiffs, some of whom are Maryland residents. Given the pleadings and discovery materials
before the Court, this assertion borders on the frivolous. Other than the e-mail and phone
communications between Barnes and Gallman, Plaintiffs have provided no more than threadbare
allegations regarding Barnes's contacts with Plaintiffs in Maryland.").
Furthermore, any attempt by Plaintiff to rely on specific jurisdiction as its basis for
personal jurisdiction over Evans would fare no better. "Specific personal jurisdiction requires a
tri-partite showing that: (l) the non-forum defendant purposely directed its activities toward

14

residents of the forum state or purposely availed itself of the privilege of conducting activities
therein; (2) plaintiffs cause of action arises out of or results from the defendant's forum-related
contacts; and (3) the forum's exercise of personal jurisdiction in the case is reasonable, i.e. is
consistent with 'fair play and substantial justice.'" Cape v. von Maur, 932 F. Supp. 124, 127 (D.
Md. 1996) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477-78 (1985))
As an initial matter, aside from its threadbare recital of black letter law and its generic
summary of Inl 'I Shoe Co., 326 U.S. 310 (1945), Plaintiff makes virtually no attempt to satisfy
this showing. See e.g., ECF No. 23 at

1; ECF No. 23-2 at 5-6. But even when this Court views

Plaintiffs allegations in the light most favorable and draws all reasonable inferences in its favor,
Plaintiff still fails to make a prima facie showing that this Court has specific jurisdiction over
Evans. As discussed, it is well-settled that periodic and isolated e-mails from an out-of-state
defendant into Maryland, wit~out more, will not rise to the level of purposeful availment for
purposes of establishing specific jurisdiction under the Due Process Clause. See Cape, 932 F.
Supp. at 128 ("Generally speaking, correspondence and phone calls from out-of-state defendants
to in-state plaintiffs are insufficient as a matter of law to establish the minimum contacts that
satisfy due process."). Moreover, Plaintiffs causes of action do not arise out of or result from
the Evans' contacts with Maryland. Under these circumstances, it would be entirely
unreasonable for this Court to exercise personal jurisdiction over Evans.
In light of the evidence before this Court, Plaintiff has not made a prima facie showing
that jurisdiction

is authorized under Maryland's

Long-Arm Statute.

prima facie showing of either general or specific personal jurisdiction.

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Nor has Plaintiff made a
Finding that this Court

lacks personal jurisdiction, Defendant Evans' Motion to Dismiss for Lack of Jurisdiction (ECF
No. 17) is GRANTED.4

V.

CONCLUSION
For the reasons stated above, Defendant

Evans'

Jurisdiction (ECF No. 17) is GRANTED, and Plaintiffs

Motion to Dismiss for Lack of
claims are DISMISSED WITHOUT

PREJUDICE.

/S/
George Jarrod Hazel
United States District Judge

Dated: July 28,2014

Although the Court will dismiss the claims against Evans. that dismissal will be without
prejudice to refiling in the proper forum. See, e.g.. Russell, No. 12-2983,2013 WL 3805118, at
*4 (dismissing claims without prejudice where personal jurisdiction was lacking): 771e Cleaning
Auth., Inc. v. Neubert, 739 F.~upp.2d. 807, 817 (D. Md. 2010) (same). Therefore, to the extent
Evans seeks dismissal with prejudice, that request will be DENIED.
4

16