InSite Platform Partners, Inc. v. OrbComm, Inc.
ORDER granting 56 : Comtech's Motion to Dismiss is GRANTED and Comtech is dismissed without prejudice from this case. Signed on 10/26/17 by District Judge Beth Phillips. (Cordell, Annette)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
INSITE PLATFORM PARTNERS, INC.,
d/b/a NORTH AMERICAN SATELLITE
CORP., and NORTH AMERICAN
ORBCOMM, INC., d/b/a
ORBCOMM SENS, LLC, and
COMTECH MOBILE DATACOM CORP.,
ORDER AND OPINION GRANTING
DEFENDANT COMTECH MOBILE DATACOM CORPORATION’S
MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
Plaintiffs InSite Platform Partners, Inc., (“InSite”), and North American Satellite Corp.,
(“NASCorp”), have sued Orbcomm SENS, LLC, (“Orbcomm”), and Comtech Mobile Datacom
Corporation, (“Comtech”). The Third Amended Complaint, (Doc. 51), added Comtech as a
defendant and asserts Comtech is liable for breach of contract, fraud, and conversion. Comtech
has filed a Motion to Dismiss, arguing that it should be dismissed because it is not subject to
personal jurisdiction in Missouri.1
The Court held a hearing on Comtech’s motion on May 12, 2017. Thereafter, the parties
engaged in additional discovery, and then filed supplemental briefs that included affidavits and
deposition testimony. The Court then directed the parties to further supplement the Record,
In its Supplemental Brief, (Doc. 88, pp. 1-3), Comtech suggests that NASCorp is not the real party in interest – and
therefore lacks standing – because it transferred all of its assets (including these claims) to InSite in 2014.
Comtech’s argument appears well-taken, but it was raised for the first time in its Supplemental Brief and, unlike the
issue of personal jurisdiction, has not been fully addressed by the parties. And, to the extent that Comtech’s
argument is related to the Court’s subject matter jurisdiction, the Court is empowered to bypass the issue and
address Comtech’s arguments regarding personal jurisdiction first. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574,
584-85 (1999). Therefore, the Court will focus on personal jurisdiction and express no view about NASCorp’s
which they did on October 5, 2017. (Doc. 100.) Having reviewed the parties’ arguments and the
evidence submitted, the Court concludes that Comtech is not subject to personal jurisdiction for
the claims asserted. Therefore, Comtech’s motion, (Doc. 56), is GRANTED and the claims
against Comtech are DISMISSED WITHOUT PREJUDICE.
NASCorp developed a system called “SkyTracker,” which allows customers to monitor
the levels in propane and other gas storage tanks. A SkyTracker unit is a piece of hardware
supplied by NASCorp that is affixed to a customer’s storage tank. SkyTracker monitors the
levels in the tank to which it is attached and sends the information to a satellite, which then
transmits the data to a station on the ground. From there, the data is sent to NASCorp’s servers
and eventually made available to the customer. NASCorp purports to retain ownership of “all of
the hardware, software, equipment, and other components of each SkyTracker unit, [as well as]
the data and transmissions sent and received by the SkyTracker units.” (Doc. 51, ¶ 15.)
In December 2009, NASCorp – a Tennessee corporation with its headquarters in that
state – contracted with Comtech – a Maryland corporation with its principal place of business in
that state – for the hardware necessary to “manufacture . . . SkyTracker units as well as
activation, messaging, monitoring and other services needed to operate the SkyTracker system.”
(Doc. 51, ¶ 20.) Comtech is not registered to conduct business in Missouri, and it did not
manufacture the SkyTracker units in Missouri. (Doc. 57-1, p. 2, ¶¶ 8-9.)
It shipped the
SkyTracker units and related engineering materials to NASCorp’s facility in Tennessee. (E.g.,
Doc. 57-1, p. 2, ¶ 12; Doc. 60-1, ¶ 4.) Comtech also sent invoices to NASCorp’s offices in
Tennessee. (Doc. 60-1, ¶ 5.)
All page numbers are those generated by the Court’s CM/ECF System.
Comtech was also responsible for providing the satellite services necessary for the system
to function, and it arranged for those satellite services to be supplied by Global Star (which is not
a party in this case). The individual SkyTracker units transmitted data to Global Star’s satellites
via radio waves, and from there the data was transmitted to Global Star’s ground station. At the
ground station, equipment owned by Global Star converted the data to a digital format so that it
could be conveyed over the internet, and then sent the data over the internet to Comtech’s
servers. Neither Global Star’s ground station nor Comtech’s servers were located in Missouri.
(Doc. 88, pp. 38-55 (Johnson Deposition, pp. 13-30).)
Upon receipt of the data, Comtech transmitted it over the internet to NASCorp’s servers;
these transmissions to NASCorp occurred daily. From 2009 until January 31, 2011, NASCorp’s
servers were located in St. Louis, Missouri. (Doc. 59-1, ¶ 8; Doc. 94, p. 8; Doc. 100-1, ¶¶ 1-2;
Plaintiffs’ Response to Interrogatory No. 3 and No. 4.) After January 31, 2011, Plaintiff’s
servers were in Dallas, Texas. (Doc. 100, p. 4.)
At some point disputes arose between NASCorp and Comtech; the nature of these
disputes is not fully explained in the Record, but the details are not relevant to the issues before
the Court. In June 2013, NASCorp and Comtech entered a “Contract Settlement Modification,”
(Doc. 57-1, pp. 6-8), which is the contract that Plaintiffs allege has been breached. (Doc. 51, ¶¶
21-24, 40.) The June 2013 Agreement, inter alia, set the terms for NASCorp’s purchase of a
specified number of additional SkyTracker units, required NASCorp to purchase satellite
services from Comtech, required NASCorp to “pay a negotiated settlement amount of
$54,186.93 to settle all outstanding Comtech invoices,” and required Comtech to “release all
SkyTracker III engineering drawings and related information to NASCorp.” The June 2013
Agreement further provided that the parties “mutually release, acquit, satisfy, and forever
discharge each other . . . from any and all existing past, present or potential claims,” thereby
settling all claims that existed at that point in time. The 2013 agreement was negotiated in
Tennessee, and consistent with the parties’ prior relations all of the items were to be delivered to
NASCorp in Tennessee. (Doc. 57-1, p. 4, ¶ 20.) And, given that NASCorp’s servers were in
Texas, the satellite services contemplated by the agreement contemplated that the data would be
sent to Texas.
On October 1, 2013, Orbcomm purchased Comtech’s operations and assumed Comtech’s
obligation to provide satellite services and data transmission services. (Doc. 51, ¶¶ 25-26; Doc.
60-1, ¶¶ 2, 5.) Comtech nonetheless continued transmitting data to NASCorp’s servers in Dallas
until May 30, 2014. (Doc. 100, p. 2.) Comtech had no further involvement with SkyTracker
after that date.
In September 2014 InSite – a Missouri corporation with its headquarters in Missouri –
called a Note issued to it by NASCorp and foreclosed on NASCorp’s assets. Thereafter, InSite
continued operating NASCorp’s business under the name “NASCorp.” (Doc. 51, ¶¶ 8-11.)
However, as this occurred more than three months after Comtech stopped all involvement with
SkyTracker, Comtech and InSite did not interact.
Plaintiffs provided two Declarations from R.L. (Rick) Humphrey, (Doc. 59-1; Doc. 1001), who identifies himself as the Chairman of the Board and CEO of InSite, “the successor to”
NASCorp. (Doc. 59-1, ¶¶ 3-4; Doc. 100-1, ¶¶ 3-4.) His first Declaration states that “when
conducting business with Defendant, Plaintiff operated and maintained an office in Cape
Girardeau, Missouri” and that “Plaintiff’s employees communicated with Defendant from
Plaintiff’s office or locations in Missouri and vice versa related to . . . Skytracker.” (Doc. 59-1,
¶¶ 9-10.) However, this Declaration does not establish that Comtech had any contacts with
Missouri (much less the nature, quantity, or quality of those contacts) because it does not specify
whether the “Plaintiff” with “offices or locations in Missouri” is NASCorp or InSite, and does
not specify whether the “Defendant” communicating with people in Cape Girardeau is Comtech
The second declaration avers that Comtech mailed SkyTracker units to NASCorp for
testing in Cape Girardeau and that Comtech’s engineers were in “consistent and regular” contact
with NASCorp’s engineers in Cape Girardeau until September 2010. (Doc. 100-1, ¶¶ 8-9.)
However, Humphrey was the Chairman and CEO of InSite, not NASCorp, and his Declaration
provides no basis for his knowledge of interactions between NASCorp and Comtech that
occurred years before InSite acquired NASCorp. More importantly, other evidence – including
Plaintiffs’ responses to discovery – demonstrates that NASCorp did not have any facilities in
Cape Girardeau at the time Comtech was performing its contractual duties.
Interrogatory No. 3 asked Plaintiffs to identify “the address of each of the [p]remises that
NASCorp has leased or owned in its own name since 2009, and describe specifically.” (Doc. 88,
p. 16.) Plaintiffs’ response lists only two locations in Missouri: the location where NASCorp
maintained its servers in St. Louis from July 2005 through January 2011, and InSite’s
headquarters in St. Charles, Missouri, which were leased in October 2014 and, therefore, after
Comtech was no longer involved with SkyTracker. (Doc. 88, p. 17.) Plaintiffs’ answer to
Interrogatory No. 3 lists no locations for NASCorp in Cape Girardeau, so Humphrey’s reference
to communications directed to Cape Girardeau cannot have been communications directed by
Plaintiffs frequently utilize “NASCorp” to refer to either or both Plaintiffs even though they are (or were) two
distinct entities: (1) the Tennessee corporation named “NASCorp” that operated until September 2014, and (2)
InSite, which continued operating the SkyTracker business under the “NASCorp” name. Thus, it is sometimes
difficult to determine to whom Plaintiffs are referring when they utilize the term “NASCorp,” and the Court has
relied on the date events occurred to ascertain whether they occurred before or after InSite took over NASCorp. The
Court also notes that Humphrey’s first Declaration is dated March 29, 2016 – more than eight months before
Comtech became a defendant in this case, which strongly suggests that Humphrey’s reference to “Defendant” could
not have been a reference to Comtech and instead refers to Orbcomm which, at the time, was the only defendant.
Comtech to NASCorp in Missouri. The only other information about offices in Cape Girardeau
is Plaintiffs’ answer to Interrogatory No. 7, which states in part that “[t]he Cape Girardeau office
provided data monitoring, information technology services, and other technical support for
Plaintiffs’ business operations,” but nothing demonstrates these were NASCorp’s (as opposed to
Plaintiffs identify no evidence of NASCorp having offices or facilities in Missouri other
than its servers in St. Louis, but as stated above Comtech stopped transmitting to the servers in
St. Louis when NASCorp moved the servers to Dallas. Plaintiffs’ answer to Interrogatory No. 3
also states that NASCorp had no employees with its servers in St. Louis, and Plaintiffs identify
no other evidence that NASCorp had employees in Missouri. InSite may have moved the servers
back to Missouri when it took over NASCorp in September 2014 – but this was after Comtech
was no longer involved with SkyTracker in any capacity. Finally, while Comtech was originally
retained to create the SkyTracker units from NASCorp’s design, (Doc. 88, pp. 57-70 (Johnson
Deposition, pp. 32-45)), there is no evidence that any communications were directed by Comtech
to Missouri and, as stated, all deliveries were made to NASCorp in Tennessee.
Therefore, the only contacts between Comtech and Missouri that Plaintiffs have
established are Comtech’s transmissions of data to Missouri from December 4, 2009 to January
29, 2011. The question is: are these contacts sufficient to support personal jurisdiction over
Comtech? The Court analyzes this question below.
“When personal jurisdiction is challenged by a defendant, the plaintiff bears the burden to
show that jurisdiction exists” and must “make a prima facie showing of personal jurisdiction
over the challenging defendant.” Fastpath, Inc. v. Arbela Tech. Corp., 760 F.3d 816, 820 (8th
Cir. 2014). “While the plaintiffs bear the ultimate burden of proof, jurisdiction need not be
proved by a preponderance of the evidence until trial or until the court holds an evidentiary
hearing.” Epps v. Stewart Info. Servs. Corp., 327 F.3d 642, 647 (8th Cir. 2003).
There are two types of personal jurisdiction: general and specific. “When a cause of
action arises out of or is related to a defendant’s contacts with the forum state, the exercise of
personal jurisdiction is one of specific jurisdiction. However, if the exercise of jurisdiction does
not depend on the relationship between the cause of action and the defendant’s contacts with the
forum state, the exercise of personal jurisdiction is one of general jurisdiction.” Id. at 648.
Plaintiffs do not specify which theory they believe applies, so the Court will consider both.
A. Specific Jurisdiction
“When assessing whether personal jurisdiction exists over a nonresident defendant,
jurisdiction must be authorized by Missouri’s long arm statute and the defendant must have
sufficient minimum contacts with the forum state to satisfy due process.” Downing v. Goldman
Phipps, PLLC, 764 F.3d 906, 911 (8th Cir. 2014). These are separate inquiries under the
Missouri long arm statute, see Myers v. Casino Queen, 689 F.3d 904, 909-10 (8th Cir. 2012), but
for the sake of argument the Court will presume that Comtech’s transmission of data to
NASCorp’s servers in Missouri constituted the transaction of business in this State. See Mo.
Rev. Stat. § 506.500(1).
The Court nonetheless concludes that Comtech’s contacts with
Missouri are insufficient to satisfy the requirements of due process.
There is “a five-factor test to determine the sufficiency of a non-resident defendant’s
contacts with the forum state to exercise specific jurisdiction over defendants. The five factors
are: 1) the nature and quality of contacts with the forum state; 2) the quantity of the contacts; 3)
the relation of the cause of action to the contacts; 4) the interest of the forum state in providing a
forum for its residents; and 5) convenience of the parties. We give significant weight to the first
three factors.” Fastpath, 760 F.3d at 821. The third factor analyzes the connection between the
cause of action and the contacts, so “[t]he third factor distinguishes whether the jurisdiction is
specific or general.” Johnson v. Arden, 614 F.3d 785, 794 (8th Cir. 2010). The balance of these
factors does not favor a finding of personal jurisdiction.
Comtech transmitted data to Missouri from December 4, 2009 to January 29, 2011.
Plaintiffs suggest that “the contract between the parties” also called for performance in Missouri,
(e.g., Doc. 59, p. 7), but this is true only insofar as Comtech was obligated to transmit data to
NASCorp’s servers when those servers happened to be in Missouri. Comtech’s contact with
Missouri ended in January 2011 when NASCorp moved its servers to Texas – seventeen months
before the agreement that is the basis for this suit was executed.4 No other aspects of a contract
involving Comtech required performance in Missouri: Comtech manufactured hardware and sent
it to NASCorp, but as discussed in Part I none of this activity occurred in Missouri. It must also
be remembered that, given the timing of (1) Comtech’s cessation of activity related to
SkyTracker and (2) InSite taking control of NASCorp, Comtech never transacted business with
InSite, so the fact that InSite is headquartered in Missouri (and, therefore, some activity
involving InSite probably occurred in Missouri) is irrelevant.
This leads to consideration of the connection between Comtech’s Missouri contacts and
Plaintiffs’ claims against Comtech. Plaintiffs’ claims against Comtech do not arise from the
transmission of data to servers in St. Louis; Plaintiffs’ claims arise from Comtech’s failure to
deliver engineering deliverables required under the June 2013 contract, and those deliveries (like
Even if Humphrey’s second Declaration is correct it does not change this conclusion, because he describes
Comtech’s purported contacts with NASCorp’s engineers in Cape Girardeau as ending in September 2010. (Doc.
100-1, ¶¶ 8-9.)
the prior deliveries) would have been made to NASCorp’s offices in Tennessee. 5 Plaintiffs resist
this conclusion by suggesting their fraud and conversion claims “date back to early 2010,” (Doc.
94, p. 12), but this is not accurate. There are two fraud claims, only one of which is asserted
against Comtech. This fraud claim relates to Comtech’s failure to deliver the “engineering
deliverables” as required by the June 2013 agreement, (Doc. 51, pp. 6-7),6 and performance of
that agreement (1) did not date back to 2010, (2) has nothing to do with the transmission of data
to Missouri, and (3) would have required delivering hardware to Tennessee and not Missouri.
The conversion claim also relates to Comtech’s failure to produce the engineering deliverables.
(Doc. 51, pp. 7-8.) And, the breach of contract claim – to the extent that it relates to Comtech as
opposed to Orbcom7 – also arises from the failure to deliver the hardware and other items
required by the 2013 agreement. (Doc. 51, p. 5.)
Plaintiffs also point to paragraph 27 of the Third Amended Complaint, (e.g., Doc. 94, p.
12), which alleges that 10,000 SkyTracker units were pirated, stolen or reverse engineered
between 2007 and 2013. Paragraph 27 concludes by alleging that “NASCorp notified Orbcomm
and requested that all satellite services be cancelled on these units.” (Doc. 51, ¶ 27 (emphasis
supplied).) This allegation does not mention Comtech and is irrelevant to any of Plaintiffs’
claims against Comtech. Paragraph 27 relates to Plaintiffs’ fraud claim against Orbcomm, which
alleges that in March 2015 Orbcomm falsely represented that it had terminated satellite service to
the pirated SkyTracker units (Doc. 51, p. 6.) It also relates to Plaintiffs’ claim that Orbcomm
The Court also notes that Plaintiffs’ claims do not arise from the purported communications with engineers
Humphrey described in his second Declaration.
The Court refers to page numbers instead of counts from the Third Amended Complaint because there are two
counts entitled “Count III.”
Comtech’s and Orbcomm’s contacts with Missouri must be distinguished because “[e]ach defendant’s contacts
with the forum State must be assessed individually.” Calder v. Jones, 465 U.S. 783, 790 (1984); see also Keeton v.
Hustler Magazine, Inc., 465 U.S. 770, 781 n.13 (1984).
breached the agreement by failing to discontinue services to those SkyTracker units. (Doc. 51, p.
5.) These theories are not asserted against Comtech, so the allegations about piracy of the
SkyTracker units will not establish personal jurisdiction over Comtech.
Finally, Plaintiffs compare this case to one in which InSite sued one of its customers in
the Eastern District of Missouri, alleging that the customer reactivated more than 2,100
deactivated SkyTracker units instead of returning them to InSite. Plaintiffs insist that the case
stands for the proposition that transmitting data to Plaintiffs’ servers in Missouri is sufficient to
establish personal jurisdiction. However, this is an over-generalization of the decision in that
InSite was the sole plaintiff, which suggests that all of the customer’s interactions
regarding SkyTracker – not just the transmission of data – were connected to Missouri. This
suggestion is confirmed by that court’s explanation for finding the customer was subject to
jurisdiction in Missouri: the customer’s data had been transmitted to Missouri for decoding and
then transmitted from Missouri to the customer in California; the customer took possession of the
more than 2,100 SkyTracker units “F.O.B. Cape Girardeau, Missouri;” the customer received
technical support and training from InSite’s staff in Missouri, and the customer entered a series
of agreements with InSite, a Missouri corporation with its principal place of business in
Missouri. InSite Platform Partners, Inc. v. Pacific LPG Corp., 2016 WL 62777195, *4 (E.D.
Mo. 2016.) Thus, the two cases are factually distinguishable.
The last two factors for specific jurisdiction are less important; nonetheless, they do not
favor a finding of personal jurisdiction. InSite – a Missouri corporation – has asserted claims
against Comtech, but Comtech did not contract with, or conduct business with, InSite. Comtech
transacted business with a Tennessee corporation (NASCorp); thus, Missouri does not have a
strong interest in providing a forum for the claims against Comtech, and whatever interest it has
is further diminished by the fact that the claims against Comtech are not related to any activity
that occurred in this state. Finally, it may be convenient for InSite to litigate in Missouri, but it is
not convenient for Comtech, so this factor does not play a significant role in the case. For these
reasons, the Court concludes that Comtech is not subject to specific jurisdiction.
B. General Jurisdiction
As discussed above, Plaintiffs’ claims do not arise from Comtech’s contacts with
Missouri, so general jurisdiction would appear to be the only possible basis for personal
jurisdiction. However, “[b]ecause it extends to causes of action unrelated to the defendant’s
contacts with the forum state, general jurisdiction over a defendant is subject to a higher dueprocess threshold.” Viasystems, Inc. v. EBM-Papst St. Georgen GmbH & Co., 646 F.3d 589, 595
(8th Cir. 2011). “A court may assert general jurisdiction over foreign (sister-state or foreigncountry) corporations to hear any and all claims against them when their affiliations with the
State are so continuous and systematic as to render them essentially at home in the forum State.”
Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011) (quotation
omitted); see also Viasystems, Inc., 646 F.3d at 595. “General jurisdiction . . . calls for an
appraisal of a corporation’s activities in their entirety, nationwide and worldwide. A corporation
that operates in many places can scarcely be deemed at home in all of them.” Daimler AG v.
Bauman, 134 S. Ct. 746, 762 n.20 (2014).
Here, only one contact by Comtech with Missouri has been identified: from
approximately December 2009 until January 31, 2011, Comtech transmitted data over the
internet into Missouri. This contact with the state (which ended before the contract that forms
the basis for Plaintiffs’ claims against Comtech was executed) is not enough to make Comtech –
a Maryland corporation with its principal place of business in that state and who conducted no
other activity in Missouri – “at home” in this state. The Court therefore concludes that it does
not have general jurisdiction over Comtech.
Comtech is not subject to general jurisdiction in Missouri because it is not “at home” in
Moreover, after analyzing the requirements for specific jurisdiction, the Court
concludes that Comtech lacks the minimum contacts with Missouri necessary to satisfy the Due
Therefore, Comtech’s motion to dismiss, (Doc. 56), is GRANTED and
Comtech is DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED.
/s/ Beth Phillips
BETH PHILLIPS, JUDGE
UNITED STATES DISTRICT COURT
DATE: October 26, 2017
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?