Williams et al v. Romarm, S.A.

Filing 48

MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 7/17/2015. (kns, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

NORMAN WILLIAMS, DIANE HOWE,
KEVIN ATTAWAY, and
JAMEL BLAKELEY,
Plaintiffs,
Civil Action No. TDC-14-3124

v.
ROMARM SA,
Defendant.

MEMORANDUM
Plaintiffs

Norman

Williams

("Williams"),

OI'INION
Diane Howe ("Howe"),

Kevin Attaway

("Attaway"). and lame! Blakeley ("Hlakeley") (collectively, "Plaintiffs") assert various causes of
action against Defendant Remann S.A. ("Romann")

arising from two shootings, during which

the firing of an assault weapon marketed and sold by Romann resulted in the death of the son of
Williams and Howe and injuries to Attaway and Blakeley.
Romann's

Motion to Dismiss and Plaintiffs'

Pending before the Court are

Motion for Jurisdictional

Discovery.

For the

reasons stated below, the Motion to Dismiss is GRANTED, and the Motion for Jurisdictional
Discovery is DENIED.
BACKGROUND
This case arises from two shootings that occurred in Washington, D.C. in March 2010.
The Complaint alleges that., on or ahout March 22, 2010, a Romarm WASR 10 semi-automatic
assault weapon was discharged during an incident in the District of Columbia, resulting in the
death of JJI.. the son of Plaintiffs Williams and Howe. who are his legal representatives.

The

Complaint further alleges that on March 30, 2010, Plaintiffs Attaway and Blakeley were injured
by the same weapon during a second incident in the District of Columbia that was "causally
connected to the death of JJJ." Compl.

6.

Romarm is a company that is wholly owned by the Romanian government and is engaged
in the international marketing and sale of firearms. Plaintiffs allege that Romarm's gun sales and
operations have a "direct effect" in the United States because Romarm sells firearms through its
American distributor, Century Arms International ("Century") for distribution to dealers in the
United States, including in Maryland, and maintains "supervision
distribution, and after.sale" of its firearms. Jd.

and control over the sale,

8.9. According to factual allegations made by

Century in a separate, unrelated lawsuit, Romarm sold more than $55 million in firearms to
Century in the IO.year period preceding 2012. Plaintiffs allege that the "sale and purchase" of
the assault weapon at issue occurred in Maryland, and that the firearm had been "transported
from Maryland to the District of Columbia" for use in the shootings. Id. ~ 3.4, II.
On March 20, 2012, Williams and Howe filed a federal suit against Romarm in the
United States District Court for the District of Columbia,! asserting claims for wrongful death,
negligence,

public

nuisance,

and,

under

the

District

of Columbia's

Manufacturing Strict Liability Act, D.C. Code ~~ 7-2551.01-03

Assault

Weapon

(West 2014), strict liability for

manufacturing. assembling, or distributing the weapon that caused the death of J.H. On October
3, 2012, Attaway and Blakely attempted to join as plaintiffs by filing a Motion for Leave of
Court to Amend Pleadings and Join Similarly Situated Parties.

The court struck the motion

because Plaintiffs failed to attach the proposed amended complaint to the motion, as required by

I Prior to the federal suit, Williams and Howe
Superior Court of the District of Columbia.
United States District Court for the District
voluntarily dismissed after refiling their suit in

had brought a state lawsuit against Romann in the
Romarm timely removed that state case to the
of Columbia, which Williams and Howe then
federal court.
2

the court's local rules. As Plaintiffs' Counsel acknowledged at oral argument, Plaintiffs never
attempted to correct and refile their motion to amend the complaint. Thus, Attaway and Blakely
were never made parties to the suit.
On February 4, 2013, the district court granted a motion to dismiss filed by Romarm,
finding that it lacked personal jurisdiction over Romarm.

Williams and Howe appealed the

decision, but on July 1,2014, the United States Court of Appeals for the District of Columbia
Circuit ("D.C. Circuit") affirmed the district court's dismissal of the case for lack of personal
jurisdiction.
On September 2, 2014, Plaintiffs filed the present lawsuit in the Circuit Court for Prince
George's County, Maryland against Romarm, alleging, on the basis of both the March 22, 2010
and March 30, 20 I0 incidents, the following five causes of action: (I) strict liability under the
District of Columbia's Assault Weapon Manufacturing Strict Liability Act; (2) wrongful death;
(3) "personal
marketing.

injury"; (4) public and private nuisance; and (5) negligent distribution

and

Romann removed the case to this Court on October 3, 2014 and filed the present

Motion to Dismiss on October 10,2014.

On January 22, 2015, after the Motion to Dismiss had

been fully briefed, Plaintiffs filed its Motion for Discovery in Aid of Jurisdiction.
DISCUSSION
I. Romarm's Motion to Dismiss for Lack of Personal Jurisdiction
In its Motion to Dismiss, Romarm argues that the Court should dismiss the Complaint on
multiple grounds: lack of personal jurisdiction, improper venue, insufficiency of process, and
because the claims are barred by the statute of limitations.

As jurisdiction is a threshold issue,

the Court must first consider Romarm's argument that the case should be dismissed for lack of
personal jurisdiction

under Federal Rule of Civil Procedure

3

l2(b)(2).

Because the Court

concludes

that it lacks personal jurisdiction

over Romarm, it will not address Romarm's

alternative arguments for dismissal.

A.

Le~alStandard
It is the plaintiffs

evidence.

burden to establish personal jurisdiction by a preponderance

of the

See Mylan Labs. Inc. v. Akzo. N. v., 2 F.3d 56, 59-60 (4th Cir. 1993). To carry that

burden at the pleading stage, the plaintiff need only make a prima fade
defendants are properly subject to this Court's jurisdiction.

showing that the

fd. In evaluating the plaintiff's

showing, this Court must accept the plaintiff's allegations as true and must resolve any factual
conflicts in the plaintiff's favor. ld. The court is pennitted to consider evidence outside the
pleadings in resolving a Rule l2(b)(2) motion.

Structural Pres. Sys., LLC v. Andrews, 931 F.

Supp. 2d 667, 671 (D. Md. 2013); CoSlar Realty Info., Inc. v. Meissner, 604 F. Supp. 2d. 757,
763-64 (D. Md. 2009).

8.

A~ent or Instrumentality of a Foreign State
Under the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C.

9

1330 el seq. (2012),

federal courts have subject matter jurisdiction over "'any nonjury civil action against a foreign
state" with respect to which the foreign state is not entitled to immunity.

ld. ~ 1330(a).

Although foreign states are generally immune from suit, the FSIA contains exceptions to that
immunity in cases in which the action is based upon "'a commercial activity carried on in the
United States by the foreign state" or upon an act in connection with "'commercial activity of the
foreign state elsewhere" that has a "direct effect in the United States," or in cases "in which
money damages are sought against a foreign state for personal injury or death, or damage to or
loss of property, occurring in the United States and caused by the tortious act or omission of that
foreign state or of any official or employee of that foreign state while acting within the scope of

4

his office or employment."

Id. ~ 1605(a)(2) and (5).

The FSIA provides that "[p]ersonal

jurisdiction ovec a foreign state shall exist as to every claim for relief over which the district
courts have [subject-matter] jurisdiction ... and where service has been made under ~ 1608." /d.
~ 1330(b).
The definition of a "foreign state" under the FSIA includes not only foreign sovereigns,
but also any "political subdivisions of a foreign state or an agency or instrumentality of a foreign
state," including any foreign corporation

"3

majority of whose shares ...

[are] owned by a

foreign state." Id. ~ 1603(a)-(b). Here, the parties do not dispute that Romarm, which is wholly
oYmcd by the Romanian government, is an agency or instrumentality of Romania, and therefore
qualifies as a "foreign state" under

* 1603.

For purposes of personal jurisdiction, however, government instrumentalities established
as "distinct and independent from their sovereign should normally be treated as such."

First

Nat 'I City Bank v. Banco Para EI Comercio Exterior de Cuba ("Bancec "), 462 U.S. 611, 626-27
(1983).

Typically,

a state-owned

entity "the structure and core function

of which are

commercial" is to be treated as an agency or instrumentality that is "separate and distinct from
the sovereign."
2005).

TMR Energy LId. v. Slate Prop. Fund of Ukroine, 411 F.3d 296, 300 (D.C. Cir.

Courts afford a presumption

that a foreign government's

determination

that its

instrumentality should be accorded separate legal status is to be followed, but that presumption
may be overcome

upon a showing

that the foreign

state so extensively

controls

the

instrumentality "that a relationship of principal and agent is created." Frontera Res. Azerbaijan
Corp. v. Stale Oil Co. of Ihe Azerbaijan Republic, 582 F.3d 393, 400 (2d Cir. 2009); see also

Bancec, 462 U.S. at 629.

Thus, if Romarm functions as an independent

entity from the

Romanian government, for purposes of personal jurisdiction analysis, Romarm is a "'person"

5

under the Fifth Amendment of the United States Constitution, and due process requires that there
be sufficient "minimum contacts" between Romarm and Maryland. Frontera, 582 F.2d at 400;
7MR Energy Ltd., 411 F.3d at 301-02,

In this case, because the United States District Court for the District of Columbia has
already decided this issue in the parties' prior case, the doctrine of collateral estoppel (issue
preclusion) bars Plaintiffs from re-litigating this question before this Court. Collateral estoppel
"bars successive litigation of an issue of fact or law actually litigated and resolved in a valid
court determination essential to the prior judgment."

Taylor v. Sturgell, 553 U.S. 880, 892

(2008) (citation and internal quotation marks omitted). Here, the Court applies the federal
common law of collateral estoppel. Although Plaintiffs' claims are governed by state substantive
law, the Supreme Court has explained that in a FSIA case, the preliminary question of whether
an instrumentality, such as Romarm, has separate juridical status from a foreign nation is a
matter of federal law because of the "importance of developing a uniform body of law
concerning the amenability of a foreign sovereign to suit in United States courts," Bancec,462
U.S. at 622-23 & n.l1.2 Thus, for purposes of collateral estoppel, "[t]he preclusive effect of a
federal-court j udgment is determined by federal common law." Taylor, 553 U.S. at 891.
Under the federal common law of collateral estoppel, an issue is precluded when the
following conditions are met:
(I) the issue sought to be precluded is identical to one previously litigated; (2) the
issue must have been actually determined in the prior proceeding;
(3) determination of the issue must have been a critical and necessary part of the
By comparison, courts have held that, once it has been established that a foreign state may be
sued under the FSIA, the forum state's choice-of-Iaw rules apply. See Oveissi v. Islamic
Republic of Iran, 573 F.3d 835, 84\ (D.C. Cit. 2009); Barwnic v. Gen. Admin. Of Civil Aviation
of the People's Republic of China, 932 F.2d 957, 959 n.2 (2d Cit. 199\) ("Here there is no
question that [the defendant] is 'amenable to suit' under the FSIA; the only question is the extent
of [the defendant's] liability. As such, state law, rather than federal law, is controlling.").
2

6

decision in the prior proceeding; (4) the prior judgment must be final and valid;
and (5) the party against whom estoppel is asserted must have had a full and fair
opportunity to litigate the issue in the previous forum.
Sedlack v. Braswell Servs. Group, inc., 134 F.3d 219, 224 (4th Cir. 1998). These conditions are
met in this case. In the earlier case filed by Williams and Howe in the United States District
Court for the District of Columbia, the parties litigated, and that court decided, the issue of
whether Romarm is a sufficiently independent entity from the Romanian government such that
minimum contacts are required. In its February 4, 2013 opinion, the district court held that
"plaintiffs have failed to rebut the presumption of independent status between ROMARM and
Romania," imd therefore "the Court finds that 'minimum contacts' must be established between
ROMARM and this forum in order to justify the Court's exercise of personal jurisdiction over
ROMARM." Howe v. Romarm, No. 12.436(EGS), 2013 U.S. Dist. LEXIS 189153, at '12
(D.D.C. Feb. 4, 2013). Based on that ruling, the court went on to analyze the minimum contacts
issue and determined that Romarm did not have such contacts with the District of Columbia. On
July 1,2014, the D.C. Circuit affirmed the district court's decision to dismiss the case for lack of
personal jurisdiction on the grounds that Williams and Howe had failed to allege adequately a
basis for minimum contacts. See Williams v. Howe ("Williams f'), 756 F.3d 777, 784-85 (D.C.
Cir. 2014).
Thus, the first three conditions are met in that (1) the issue before this Court is the same
as that previously litigated before the United States District Court for the District of Columbia,
namely whether Romarm is an independent entity for which minimum contacts are required;
(2) the court issued a judgment on the merits of the issue; and (3) the court's judgment on the
issue, which resulted in dismissal of the case for lack of personal jurisdiction, was a critical and
necessary part of the decision.

7

'Ibe fourth condition is also met because the judgment was final and valid, Plaintiffs
argue that because the D.C. Circuit did not consider on appeal the issue of whether the district
court correctly decided that Romarm was an independent entity for personal jurisdiction
purposes, they are not precluded from raising the issue again before this Court, However, the
D,C. Circuit did not consider the issue because Williams and Howe did not raise this issue in
their appellate brief and improperly sought to argue it for the first time at oral argument before
the D.C. Circuit. See Williams J, 756 F.3d at 782.83 ("Whether it was an intentional strategy or
a simple case of overlooking the record, Appellants cannot "sandbag" Romarm. Questions not
presented and argued by the parties in a sequence affording appropriate consideration are
forfeited, and we accordingly decline to rule on the issue since it was not properly raised.").
Thus, the district court's ruling constitutes a final judgment on the merits of the issue. The fifth
condition is also satisfied, as Williams and Howe had a full and fair opportunity to litigate the
Issue.
As for Attaway and Blakeley, they were not a party to the earlier case because Williams
and Howe never attempted to refile their motion to join them in the case after the district court
struck their first motion to amend, Nevertheless, Attaway and Blakeley are also barred from
rclitigating this issue because they are parties in privity with Williams and Howe. Although as a
general rule, "collateral estoppel ordinarily applies only against persons who were parties to the
prior suit," under some circumstances, "nonparties can be precluded from relitigating issues
determined in a prior suit," such as when a non-party is in privity with a party to a former
litigation. Martin v. Am. Bancorporation Retirement Plan, 407 F.3d 643, 654 0.18 (4th Cir.
2005) (internal quotation marks and citations omitted). Privity does not require "an exact
identity of parties," rather "[t]wo parties can be said to be in privity when 'the interests of one

8

party are so identificd
representation

with the interests of another that representation

of the other's legal right."

by onc party

IS

Universal Furniture Inl'I, Inc. v. Frankel, 538 F.

App'x 267, 270-71 (4th Cir. 2013) (internal quotation marks and citation omitted) (holding that a
party was collaterally estopped from re.litigating an issue that was resolved during the first trial
by his brother and business partner, because the party could not explain "how his interests could
have departed at all from his brother's or their company's").

Here, the interests of Attaway and

l3Iakeley, with respect to the issue of personal jurisdiction over Romarm, were identical to the
interests of Williams and Howe in the first action: they shared the interest of establishing that
Romarm was sufficiently controlled by the Romanian government, such that it was not a separate
and distinct entity that qualifies as a "person" with due process rights for purposes of personal
jurisdiction.

The four Plaintiffs also share an attorney in the present case-the

same attorney

who represented Williams and Howe, and attempted to represent Attaway and Blakely, in the
first action. Furthermore, Plaintiffs' Counsel acknowledged during oral argument that Williams
and Howe's interests in litigating this issue were identical to those of Attaway and Blakely.
Thus, under collateral estoppel, Attaway and Blakeley are barred from rclitigating the issue of
whether Romarm is independent from the Romanian government.

c.

3

Due Process
Because Romarm is an independent entity, and therefore a "person" under the Due

Process Clause, Plaintiffs must establish that Romarm has sufficient "minimum contacts" with
Maryland, such that "maintenance of the suit does not offend traditional notions of fair play and

Romann argues that, in the alternative, even if collateral estoppel did not apply to Attaway
and Blakeley, they would be prevented from re.litigating this issue because their claims in the
present case are barred by the statute of limitations. The Court does not reach the statute of
limitations question because, for the reasons stated in this Memorandum Opinion, it does not
have personal jurisdiction over Romarm.
3

9

substantial justice."
jurisdiction

Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

is discussed in terms of "general" or "specific" jurisdiction.

Personal

A court has general

personal jurisdiction when the defendant maintains "continuous and systematic" contacts with
the forum state.
(1984).

Helicopteros Naciona/es de Colombia, SA. v. Hall, 466 U.S. 408, 414-16

Where, as here, there is no evidence that the defendant has such continuous contacts

with the forum state, a plaintiff must show specific personal jurisdiction.

A court has specific

personal jurisdiction when the defendant has established minimum contacts with the forum state
by purposefully directing its activities at the residents of that state, and the cause of action
"results [mm alleged injuries that arise out of or relate to those activities."
Corp. v. Rudzewicz,471

See Burger King

U.S. 462, 472-73 (1985); see also Akro Corp. v. Luker, 45 F.3d 1541,

1545-46 (Fed. Cir. 1995).

A defendant corporation must "purposefully

avail itself of tbe

privilege of conducting activities within the forum state, and its "conduct and connection with
the forum State" must be "such that [it] should reasonably anticipate being haled into court
there." World Wide Volkswagen Corp. v. Woodw", 444 U.S. 286, 297 (1980).
In the context of non-resident defendant companies whose only connection to a forum is
that their products have ended up there, the Supreme Court first recognized a "stream of
commerce" theory of personal jurisdiction in World-Wide Volkswagen, finding that the forum
state "does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction
over a corporation that delivers its products into the stream of commerce with the expectation
that they will be purchased by consumers in the forum state." Id. at 297-98.
Asahi Metal Industry Co., Ltd. v. Superior Court o/California,

Subsequently, in

Solano County. 480 U.S. 102

(1987), the Supreme Court provided two theories. neither of which garnered a majority of the
Court, for how personal jurisdiction

might exist in a stream of commerce

10

case.

Justice

O'Connor's

plurality opinion. joined by three other justices. concluded that it is not enough that

a corporation place its product in the stream of commerce with the awareness that it may travel
to the forum state; rather for minimum contacts to be established, there must be "an action of the
defendant purposefully directed toward the forum State. such as an act that shows "an intent or
purpose to serve the market in the forum State."

Id. at 113. Justice Brennan's concurring

opinion, joined by three others, reasoned that minimum contacts could be established if the
defendant placed its product into the stream of commerce knowing that it eventually would be
marketed and sold in the forum state and that it would benefit economically from such sales. Id.
at 121.
In Lesnick v. Hollingsworth & Vose Co., 35 F.3d 939 (4th Cir. 1994), the United States
Court of Appeals for the Fourth Circuit, echoing Justice O'Connor's

reasoning in Asahi, held

that the test is whether (1) the defendant has "created a substantial connection to the forum state
by action purposefully directed toward the forum state"; and (2) the exercise of jurisdiction
would not offend "traditional notions of fair play and substantial justice." [d. at 945-46.
Lesnick, the court found no personal jurisdiction

where the defendant corporation

In

sold its

cigarette filter material to plants in Kentucky and New Jersey, with the knowledge that the
finished cigarettes would be sold in Maryland, but none of the defendant's conduct was "directed
toward the state of Mary/and."

35 F3d at 946-47 (emphasis in original).

The Supreme Court recently decided a stream of commerce case in J Mcintyre Mach
Ltd. v. Nicastro, 131 S. Ct. 2780 (2011), where six justices agreed that there was no personal
jurisdiction over an British company that directed marketing and sales efforts at the United States
as a whole through a distributor. but whose only contact with the forum state was the sale of one
of its machines to a resident of that state. Id. at 2790. Because there was no majority opinion in

II

McIntyre, Justice Breyer's concurrence, in which he concurred in the plurality'sjudgmentbut

not

its reasoning,4 provides the only controlling guidance. See Marks v. United Stales, 430 U.S. 188,
193 (1977) ("When a fragmented Court decides a case and no single rationale explaining the
result enjoys the assent of five Justices, the holding of the Court may be viewed as that position
taken by those Members who concurred in the judgments on the narrowest grounds ....

")

(citation and internal quotation marks omitted). In his concurrence, Justice Breyer explained that
none of the Supreme Court's stream of commerce precedents would permit a "single isolated
sale" of a product to a customer in the forum to be sufficient to establish minimum contacts on
the part of the manufacturer, and that without a showing of a "regular course of sales" in the
forum state, or a showing of "something more," such as "special state-related design, advertising,
advice, marketing or anything else" that would indicate a "specific effort" by the defendant to
sell in the forum, there would be no personal jurisdiction against the manufacturer.

Id. at 2792

(Breyer, J., concurring) (internal quotation marks omitted).
The factual basis for the Court's exercise of personal jurisdiction over Romarm is even
more tenuous than the facts in McIntyre,
contacts where the manufacturer

In McIntyre, the Supreme Court found no minimum

not only encouraged

its American distributor

to sell its

machines in the United States, but the distributor had, in fact, sold and shipped at least one of the
manufacturer's
concurring).

machines to a customer in the forum state.

131 S. Ct. at 2791 (Breyer, J.,

Here, Plaintiffs' allegations to support personal jurisdiction in Maryland are limited

to the assertions that Romann engages a United States distributor, Century, to sell its fireanns to

4 Justice Kennedy's plurality opinion stated that, "as a general rule, it is not enough that the
defendant might have predicted that its goods will reach the forum state," and thus rejected
"foreseeability" of contacts with the forum state as the "touchstone of jurisdiction," Mclmyre,
131 S, Ct at 2788-89. Justice Kennedy concluded that "it is the defendant's actions, not his
expectations, that empower a State's courts to subject him to judgment." Id.

12

dealers in the United States. including in Maryland; that the weapon used in the shootings was
somehow "transported"

from Maryland into the District of Columbia; and that "the sale and

purchase" of the weapon had occurred in Maryland.

Compl. ~ 3-4.8-9,

11. At oral argument.

however. Plaintiffs' Counsel acknowledged that they had no specific information that Century
sold Romarm firearms into Maryland, and that their information relating to the specific firearm
used in the shootings was limited to Romarm's representation in a legal filing, which states only
that the firearm had been "stolen from Maryland."s

Pl.'s Post-Hr'g Supplement. Ex. E, ECF No.

43. Thus, there is no evidence that the fireann used in the shooting was ever bought or sold
within Maryland, and certainly no evidence that Romarm was a party to such a transaction.
Where PlaintilTs have not even shown that the fireann used in the shooting was sold into
Maryland, the fortuity that the firearm apparently found its way into Maryland is insufficient to
establish minimum contacts.

See World-Wide Volkswagen, 444 U.S. at 298.99 (holding that a

customer driving a car purchased from a New York dealer to Oklahoma did not establish that the
dealer had minimum contacts with Oklahoma).

Moreover, given that Plaintiffs have not

established that any Romarm fireanns were sold in Maryland, their allegations do not support a
finding that that Romarm made any "specific effort" to sell its firearms in Maryland, such as
through

a regular course of sales in Maryland,
6

marketing.

or state. specific design,

advertising.

or

131 S. C1. at 2792 (Breyer, J .• concurring); Lesnick, 35 F.3d at 945A6 ("Thus, we

At oral argument, Counsel for Romann represented that this statement was based on
information received from the police investigating the shootings, and that Romarm had no
internal company information that the firearm had been sold into, or was ever present m,
Maryland.
5

In a post-hearing submission, Plaintiffs offered printouts from two websitcs apparently hosted
by companies located in Maryland that appear to sell Century firearms made in Romania that
may be manufactured by Romarm. Because the Court did not grant leave for Plaintiffs to submit
such material in a post-hearing submission, the Court considers it untimely. Nevertheless, even

6

13

hold that the test to be applied in considering the reach of personal jurisdiction inquires whether .
. . the defendant has created a substantial connection to the forum state by action purposefully
directed toward the forum state or otherwise invoking the benefits and protections of the laws of
the stale .... "). See a/so Windsor v. Spinner Indus. Co .. Ltd., 825 F. Supp. 2d 632, 639 (D. Md.
2011) (finding insufficient
corporation.

allegations

to establish personal jurisdiction

which directly sold its bicycle components

over a Taiwanese

to United States companies

that

maintained a "web presence in Maryland" and marketed and sold their products both throughout
the United States and specifically in Maryland, because the plaintiffs "offered no details about
the particular chain of distribution that brought the allegedly defective [product)" to Maryland,
and "made no showing of any 'additional conduct' that would evince an intent to serve the
Maryland bicycle market"); AESP. Inc. v. Signamax. LLC, 29 F. Supp. 3d 683, 690-91 (E.D. Va.
2014) (finding insuflicient minimum contacts where the defendant manufacturer's

"only contact

with Virginia appear[ed] to be its sales to a nationwide distributor," which then made two sales
of the product to customers in Virginia, where there was no evidence that reflected that the
defendant otherwise marketed the products in Virginia. or specifically structured its relationship
with its United States distributor in order to facilitate the sale of the product in Virginia).
This is not a case in which there was a "regular course of sales" into Maryland from
which one could reasonably infer that that there was purposeful direction of the product into
Maryland.

See McIntyre, 131 S. Cl. at 2792 (Breyer, J., concurring); see Hart v. Bed Bath &

if the Court were to consider this information, one of the printouts contains a specific disclaimer
that the Century firearm displayed is "[n]ot available" in certain states, including Maryland.
PI.'s Post.Hr'g Supplement. Ex. B, ECF No. 43. Furthermore, neither printout provides any
information on the distribution chain from Century to this on-line dealer and does not establish
whether these firearms arc actually shipped to or from a Maryland location, and what volume of
sales, if any, have been made to or from Maryland. Thus, these documents are insufficient to
show purposeful conduct by Romarm to sell into Maryland.
14

Beyond, Inc., 48 F. Supp. 3d 837, 842-43 (D. Md. 2014) (finding minimum contacts where the
defendant clearly packaged and labeled its product specifically for a "clearly defined network of
distributors" that defendant knew would sell the product in Maryland, and where a significant
volume of the product, 1,992 bottles, had actually been sold in Maryland).
There can be no doubt, however, that Romann has purposefully availed itself of the
United States market.

Romarm has stated that it "supplied military weapons for government

institutions in the United States and weapons for civilian usc for legal entities-traders based in
the U.S." Pl.'g Hearing Ex. B. It sold more than $55 million in fireanns to Century in the 10year period preceding 2012, Pl.'s Hearing Ex. A at 1, and specifically built the WASR 10, the
fireann involved in the incidents in question, for the United States market, PI.'s Hearing Ex. C at
I. The firearms flow throughout the United States: the police department in Washington, D.C.,
where assault weapons are banned, see D.C. Code ~ 7-2502.02(a)(6), has recovered at least 25
Romann firearms in a five-year period, presumably from criminal activity. See Pl.'s llearing Ex.
L.
That a plaintiff must establish that an international manufacturer specifically directed
conduct toward an individual

state, rather than the nation as a whole, in order for that

manufacturer to be subject to personal jurisdiction
modem economy.

does not square with the realities of the

Today, when a company can easily target all 50 states through national and

online advertising and thereby foresee that its products will be sold in those states, but can avoid
directing any of its own conduct toward a particular state simply by funneling its sales through a
United States distributor, it should not be able to evade jurisdiction in the states into which its
product is sold.

See Mcintyre, 131 S. Ct. at 2795 (Ginsburg, J., dissenting) (stating that the

"splintered majority today turns the clock back to the days before modem long-arm statutes

15

when a manufacturer, to avoid being haled into court where a user is injured, need only Pilatelike wash its hands of a product by having independent distributors market it." (internal
quotation marks and citations omitted». Nevertheless, because Mclntyre and Lesnick require
purposeful conduct directed at Maryland specifically, and because Plaintiffs have not even
shown that the firearm in question was sold in Maryland, much less that there is a regular course
of sales of Romarm firearms in Maryland from which such purposeful conduct could be inferred,
the Court concludes that it lacks personal jurisdiction over Romarm.
11. Motion for .Jurisdictional Iliscovery

PlaintifTshave also filed a Motion for Discovery in Aid of Jurisdiction, requesting that
the Court grant limited discovery that would permit Plaintiffs to determine: (1) the extent of the
Romanian government's control over Romarm, for purposes of determining whether Romarm is
a separate juridical entity from the government; and (2) the extent of Romarm's contacts with
Maryland, for purposes of establishing minimum contacts. As to the first of these categories, for
the reasons discussed above in Part LB, collateral estoppel bars Plaintiffs from relitigating the
issue of whether Romarm is a separate juridical entity from the Romanian government.
Therefore, the Court denies jurisdictional discovery on that question.
The Court also denies jurisdictional discovery on the second category regarding the
extent of Romarm's contacts with Maryland. "[T)he decision whether or not to permit
jurisdictional discovery is a matter committed to the sound discretion of the district court." Base
Me/al Trading, Ltd. v. DJSC "Novokuzne/sky Aluminum Fac/ory", 283 F.3d 208, 216 n.3 (4th

Cic. 2002). "When a plaintiff offers only speculation or conclusory assertions about contacts
with a forum state, a court is within its discretion in denying jurisdictional discovery." Care first
oj Md., Inc. v. Carefirs/ Pregnancy Cn/rs., Inc., 334 F.3d 390, 402 (4th Cir. 2003).

16

lIere,

Plaintiffs have acknowledged that the only connection to Maryland of the firearm used in the
shootings in Washington, D.C. is that it was apparently stolen from someone in Maryland.

It has

no basis to conclude that the firearm was actually the subject of a legitimate, commercial
transaction in Maryland.

Even if facts are identified to support the Complaint's vague allegation

that the incident weapon was at some point "bought and sold" by some unknown parties in
Maryland and passed through Maryland, such an isolated sale or presence of a product would not
establish personal jurisdiction. Mcintyre, 131 S. Ct. at 2792 (Breyer, J., concurring).
Although the Complaint makes the conclusory allegation that Romarm sells its weapons
to Century for distribution to dealers in the United States, "including Maryland,"
Counsel acknowledged
allegations.

Plaintiffs'

at oral argument that there actually was no basis to support those

Other than a belated, post-hearing submission of a web page indicating that a

Maryland-based

dealer engages in online sales of Century firearms manufactured by Romarm,

Plaintiffs have offered no facts relating to sales in Maryland, such as identifying the actual
presence of Romarm firearms at Maryland gun stores or any advertising of Romarm firearms
directed to Maryland. Plaintiffs therefore have not offered sufficient information to convince the
Court that jurisdictional

discovery would uncover evidence of purposeful conduct by Romarm

directed to Maryland, or that there would be a sufficient volume of sales that would support an
inference of such conduct, particularly given that the transfer, possession, sale, purchase, or
receipt of assault weapons are now banned in Maryland.
303(a), 4-301; Md. Code Ann., Pub. Safety

S

5-102(r)(2).

Md. Code Ann., Crim. Law
Under these circumstances,

99

4-

and

particularly where the connection of this case to Maryland is extremely tenuous, jurisdictional
discovery would be a "fishing expedition in hopes of discovering some basis of jurisdiction."
Base Metal Trading, 283 F.2d at 216 n.3. Plaintiffs' efforts would be better spent identifying

17

another district in which personal jurisdiction exists.

The Court therefore declines to grant

jurisdictional discovery.
III.

Transfer
At oral argument, the Court discussed the possibility of transfer to another district where

personal jurisdiction

may exist.

It is unfathomable that Romarm, which has sold over $55

million of firearms into the United States, and has designed firearms specifically for the United
Slates market, is not subject to personal jurisdiction in any state. At oral argument, Romarm
represented that the firearm used in the shootings was originally sold to Century in 2006. Thus,
it stands to reason that jurisdiction is more likely to exist in the state into which Romarm's
firearms are imported, or the state whose law governs Romarm's agreement with Century, than
in Maryland.

If there is a district in which personal jurisdiction exists, in light of the rulings by

this Court and the United States District Court for the District of Columbia denying personal
jurisdiction, venue would likely be valid in that district under 28 U.S.C. ~ 1391(b)(3).
Plaintiffs have now requested that this case be transferred to the District of Vermont, the
state in which Century's principal place of business is located. Under 28 U.S.C. S 1406, a court
may, "in the interest of justice," transfer a case filed in the wrong venue to "any district or
division in which it could have been brought." 28 U.S.C. S 1406(a). The Fourth Circuit has read

9

1406(a) as also authorizing transfer "for any reason which constitutes an impediment to a

decision on the merits in the transferor district but would not be an impediment in the transferee
district." Porter v. Grout, 840 F.2d 255, 258 (4th Cir. 1988). This includes a transfer to another
district where a defendant is subject to personal jurisdiction.

See Johansson Corp. v. B()wne~'s

Consl. Cu., 304, F. Supp. 2d 701, 709 (D. Md. 2004); Estale uf Bank v. Swiss Valley Farms Co.,
286 F. Supp. 2d 514, 522 (D. Md. 2003). Although there appears to be a greater likelihood that

18

the District of Vermont has personal jurisdiction over Romarm than the District of Maryland, the
Court cannot conclude at this time, based on the allegations in the Complaint, that personal
jurisdiction

exists in Vermont such that it is a district in which this case "could have been

brought." 28 U.S.C. ~ 1406(a). Accordingly, the Court declines to transfer the case.
CONCLUSION
For the foregoing reasons, the Motion to Dismiss is GRANTED and the Motion for
Discovery in Aid of Jurisdiction is DENIED.
jurisdiction.

The case is DISMISSED for lack of personal

A separate Order follows.

Date: July 17,2015

~~

THEODORE
D.~.
G
United States District Judge

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