JPB INSTALLERS, LLC. V. DANCKER, SELLEW & DOUGLAS, INC., ET AL.
Filing
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MEMORANDUM OPINION AND ORDER signed by JUDGE N. C. TILLEY, JR on 07/06/2017. Clark Construction Group, LLCs and Fidelity and Deposit Company of Marylands Motion to Dismiss 11 is GRANTED because this Court lacks personal jurisdiction over these de fendants. FURTHER that Dancker, Sellew & Douglas, Inc.'s Motion to Dismiss 15 be GRANTED because this Court lacks personal jurisdiction over this Defendant. A judgment dismissing the casewill be entered contemporaneously with this Order. (Coyne, Michelle)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JPB INSTALLERS, LLC,
Plaintiff,
v.
DANCKER, SELLEW & DOUGLAS,
INC. d/b/a DS+D, CLARK
CONSTRUCTION GROUP, LLC, and
FIDELITY and DEPOSIT COMPANY OF
MARYLAND,
Defendants.
)
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1:17CV292
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on respective motions to dismiss for
lack of personal jurisdiction, or alternatively, to transfer the action by Defendants
Clark Construction Group, LLC (“Clark”) and Fidelity and Deposit Company of
Maryland (“Fidelity”) [Doc. #11] and Defendant Dancker, Sellew, & Douglas, Inc.
(“Dancker”) [Doc. #15]. For the reasons that follow, both motions to dismiss for
lack of personal jurisdiction are GRANTED.
I.
This case is about money allegedly owed from the provision of goods and
services at a construction site in Washington, D.C. In August 2013, Plaintiff JPB
Installers, LLC (“JPB”), a North Carolina company, began providing labor and
materials for a project at the George Washington University Science and
Engineering Hall. (Compl. ¶¶ 1, 19 [Doc. #4].) JPB served as a subcontractor for
Dancker, a New York corporation with its principal office in New Jersey, which
served as a subcontractor for Hamilton Scientific, LLC (“Hamilton”), a Delaware
company that has been dismissed from this action, which served as a
subcontractor for Clark, a Maryland company and the general contractor for the
project. (Id. ¶¶ 4, 7, 8, 22.) Fidelity, a Maryland corporation, served as a payment
and performance surety for Hamilton. (Id. ¶¶ 9, 24.) In support of its claims of
breach of contract against Dancker and unjust enrichment against all Defendants,
JPB alleges that Dancker and now-dismissed Hamilton owe JPB for work
performed and that Fidelity is financially responsible for Hamilton’s debts to JPB.
(Id. ¶¶ 33, 34, 36-69.) In response, all Defendants have moved to dismiss for lack
of personal jurisdiction and, in the alternative, if the Court were not to dismiss the
matter, to transfer the action.
II.
When a defendant asserts a Rule 12(b)(2) challenge to a court’s personal
jurisdiction, the question is one for the court and the plaintiff bears the burden to
prove the existence of a ground for personal jurisdiction. Combs v. Bakker, 886
F.2d 673, 676 (4th Cir. 1989). The burden “varies according to the posture of a
case and the evidence that has been presented to the court.” Grayson v.
Anderson, 816 F.3d 262, 268 (4th Cir. 2016). Ultimately, a plaintiff must prove
the existence of a ground for jurisdiction by a preponderance of the evidence. Id.
(citing Combs, 886 F.2d at 676). However, when, as here, the court addresses
the question of personal jurisdiction on the basis of the motion papers, supporting
legal memoranda, relevant allegations of the complaint, and, if provided, supporting
2
affidavits,1 the plaintiff has the burden of making a prima facie showing in support
of jurisdiction. Id. (citing Combs, 886 F.2d at 676); Universal Leather, LLC v. Koro
AR, S.A., 773 F.3d 553, 558 (4th Cir. 2014).
A plaintiff makes a prima facie showing in this context when it “present[s]
evidence sufficient to defeat a motion for judgment as a matter of law.” In re
Polyester Staple Antitrust Litig., No. 3:03CV1516, 2008 WL 906331, at *7
(W.D.N.C. Apr. 1, 2008) (quoting Reese Bros., Inc. v. U.S. Postal Serv., 477 F.
Supp. 2d 31, 36 (D.D.C. 2007)); see also Mattel, Inc. v. Greiner & Hausser GmbH,
354 F.3d 857, 862 (9th Cir. 2003) cited in Universal Leather, 773 F.3d at 561
(stating that a plaintiff makes a prima facie showing of personal jurisdiction by
presenting facts that, if true, would support jurisdiction). Stated another way, a
plaintiff makes a prima facie showing when there is evidence which a reasoning
mind could accept as sufficient to support the proposition in question.
Absent an evidentiary hearing, the court “must construe all relevant pleading
allegations in the light most favorable to the plaintiff, assume credibility, and draw
the most favorable inferences for the existence of jurisdiction.” Combs, 886 F.2d
at 676; see also Universal Leather, 773 F.3d at 560 (requiring the court to assume
the plaintiff’s version of the facts is credible and to construe any conflicting facts
in the affidavits in the light most favorable to the plaintiff). However, “[t]he
allegations of the complaint are taken as true only if they are not controverted by
1
“[A] court has broad discretion to determine the procedure that it will follow in
resolving a Rule 12(b)(2) motion.” Grayson, 816 F.3d at 268.
3
evidence from the defendant.” Vision Motor Cars, Inc. v. Valor Motor Co., 981 F.
Supp. 2d 464, 468 (M.D.N.C. 2013) (citing Wolf v. Richmond Cty. Hosp. Auth.,
745 F.2d 904, 908 (4th Cir. 1984)). When a defendant presents evidence that
the court lacks personal jurisdiction, the plaintiff must present affidavits or other
evidence to the contrary. Id. (citing Clark v. Remark, 993 F.2d 228 (Table), 1993
WL 134616, *2 (4th Cir. Apr. 29, 1993)). If both sides present evidence about
personal jurisdiction, the court must resolve factual conflicts in the plaintiff’s favor
“for the limited purpose” of determining if the plaintiff has made a prima facie
showing. Id. (citing Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 62 (4th Cir.
1993)).
A federal court may exercise personal jurisdiction over a non-resident
defendant only if the forum state’s long-arm statute authorizes the exercise of
jurisdiction and the exercise of jurisdiction comports with the Fourteenth
Amendment due process requirements. Christian Sci. Bd. of Dirs. of First Church of
Christ, Scientist v. Nolan, 259 F.3d 209, 215 (4th Cir. 2001). North Carolina’s
long-arm statute, General Statute § 1-75.4, “is designed to extend jurisdiction over
nonresident defendants to the fullest limits permitted by the Fourteenth
Amendment’s due-process clause.” Church v. Carter, 380 S.E.2d 167, 169 (N.C.
Ct. App. 1989); see also Christian Sci. Bd. of Dirs., 259 F.3d at 215 (stating
same). Thus, the court’s focus becomes whether the plaintiff has made a prima
facie showing that the defendant’s contacts with North Carolina satisfy
constitutional due process. Universal Leather, 773 F.3d at 558-59.
4
Due process allows a court to exercise general or specific jurisdiction over a
defendant. General jurisdiction exists over a foreign defendant when its
“continuous corporate operations within a state [are] 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.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 318
(1945); see also Helicopteros Nactionales de Colombia, S.A. v. Hall, 466 U.S. 408,
414 n.9 (1984) (“When a State exercises personal jurisdiction over a defendant in
a suit not arising out of or related to the defendant’s contacts with the forum, the
State has been said to be exercising ‘general jurisdiction’ over the defendant.”).
General jurisdiction requires a foreign defendant’s “affiliations with the State [to
be] so ‘continuous and systematic’ as to render [it] essentially at home in the
forum State.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915,
919 (2011) (citing Int’l Shoe Co., 326 U.S. at 317). “The Supreme Court has
recently held that, aside from the ‘exceptional case,’ general personal jurisdiction
over a corporation is usually only appropriate in the corporation’s state of
incorporation or principal place of business.” Public Impact, LLC v. Boston
Consulting Grp., Inc., 117 F. Supp. 3d 732, 738 (M.D.N.C. 2015) (citing Daimler
AG v. Bauman, ___ U.S. ___, 134 S. Ct. 746, 761 n.19 (2015)).
“Specific jurisdiction is very different.” Bristol-Myers Squibb Co. v. Superior
Ct. of Cal., San Francisco Cty., ___ U.S. ___, ___ S. Ct. ___, 2017 WL 2621322,
at *6 (June 19, 2017). It exists when the forum state exercises personal
jurisdiction over the defendant “in a suit arising out of or related to the defendant’s
5
contacts with the forum[.]” Helicopteros Nacionales de Colombia, S.A., 466 U.S.
at 414 n.8. “[T]here must be an ‘affiliation between the forum and the underlying
controversy, principally, [an] activity or an occurrence that takes place in the forum
State.’” Bristol-Myers Squibb Co., 2017 WL 2621322, at *7 (quoting Goodyear,
564 U.S. at 919). “When there is no such connection, specific jurisdiction is
lacking regardless of the extent of a defendant’s unconnected activities in the
State.” Id. (citing Goodyear, 564 U.S. at 931 n.6.)
To exercise specific jurisdiction over a defendant, due process requires that
the court examine “(1) the extent to which the defendant purposefully availed itself
of the privilege of conducting activities in the State; (2) whether the plaintiff[‘s]
claims arise out of those activities directed at the State; and (3) whether the
exercise of personal jurisdiction would be constitutionally reasonable.” Consulting
Eng’rs Corp. v. Geometric Ltd., 561 F.3d 273, 278 (4th Cir. 2009) (quoting ALS
Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 712 (4th Cir. 2002)).
The inquiry into “purposeful availment . . . is grounded on the traditional due
process concept of ‘minimum contacts[.]’” Universal Leather, 773 F.3d at 559.
“Jurisdiction is proper . . . where the contacts proximately result from actions by
the defendant himself that create a ‘substantial connection’ with the forum State.”
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) (quoting McGee v.
Int’l Life Ins. Co., 355 U.S. 220, 223 (1957)). It is not enough that a defendant’s
contacts with the forum state arise because the plaintiff is located there. See
Worldwide Ins. Network, Inc. v. Trustway Ins. Agencies, LLC, No. 1:04CV906,
6
2006 WL 288422, at *5 (M.D.N.C. Feb. 6. 2006). Instead, the defendant needs
to have “purposely directed [its] activities at the state of North Carolina.” See id.
At its heart, the question is “whether the defendant’s conduct and connection with
the forum [s]tate are such that he should reasonably anticipate being haled into
court there.” Universal Leather, LLC, 773 F.3d at 559 (citation omitted) (alteration
in original).
In the business context, courts analyze “various nonexclusive factors” to
determine if a defendant has purposefully availed itself of the privilege of
conducting activities in the state, including, but not limited to:
whether the defendant maintains offices or agents in the forum
state,
whether the defendant owns property in the forum state,
whether the defendant reached into the forum state to solicit or
initiate business,
whether the defendant deliberately engaged in significant or longterm business activities in the forum state,
whether the parties contractually agreed that the law of the forum
state would govern disputes,
whether the defendant made in-person contact with the resident of
the forum in the forum state regarding the business relationship,
the nature, quality and extent of the parties’ communications
about the business being transacted, [and]
whether the performance of contractual duties was to occur within
the forum[.]
Consulting Eng’rs Corp., 561 F.3d at 278 (citations omitted). Although several of
these factors involve the physical presence of a defendant in a forum state, “[s]o
long as a commercial actor’s efforts are ‘purposefully directed’ toward residents of
another State, [the Supreme Court has] consistently rejected the notion that an
absence of physical contacts can defeat personal jurisdiction there.” Burger King
7
Corp., 471 U.S. at 475. On the other hand, “the Fourth Circuit has given great
weight to the question of who initiated the contact between the parties.” Pan-Am.
Prods. & Holdings, LLC v. R.T.G. Furniture Corp., 825 F. Supp. 2d 664, 682
(M.D.N.C. 2011); see also Universal Leather, LLC, 773 F.3d at 562 (noting that
“the fact that a defendant initiated contact with the plaintiff in the forum state and
repeatedly reached into the forum state to transact business during in-person visits
there” “significantly” impacted the personal jurisdiction analysis) (internal
quotations omitted).
Also relevant here, a resident’s contract with a non-resident defendant is not
by itself sufficient to establish sufficient minimum contacts with the forum state.
Burger King Corp., 471 U.S. at 478. Because the contract is “but an intermediate
step serving to tie up prior business negotiations with future consequences which
themselves are the real object of the business transaction[,]” a court must evaluate
“prior negotiations[,] contemplated future consequences, . . . the terms of the
contract[,] and the parties’ actual course of dealing[.]” Id. at 479.
The Fourth Circuit has “generally. . . concluded that a foreign corporation
has purposefully availed itself of the privilege of conducting business in the forum
state when the defendant ‘substantially collaborated with a forum resident and
that joint enterprise constituted an integral element of the dispute.’” Universal
Leather, LLC, 773 F.3d at 560 (quoting Tire Eng’g & Distrib., LLC v. Shandong
Linglong Rubber Co., Ltd., 682 F.3d 292, 302 (4th Cir. 2012)). On the other
hand, the Fourth Circuit has “typically . . . found such purposeful availment lacking
8
in cases in which ‘the locus of the parties’ interaction was overwhelmingly
abroad.’” Id. (quoting Tire Eng’g & Distrib., LLC, 682 F.3d at 302).
Only after the plaintiff makes a prima facie showing of purposeful availment
does the court need to evaluate the two remaining prongs of the jurisdictional
analysis: whether the defendant’s contacts with the forum state form the basis of
the suit and whether other considerations confirm the appropriateness of the forum
such as the burden on the defendant, the interest of the forum state in adjudicating
the dispute, the plaintiff’s interest in obtaining convenient and effective relief, the
shared interests in obtaining efficient resolution, and the interests of the states in
furthering substantive social policies. Consulting Eng’rs, 561 F.3d 278-79.
III.
Defendants Clark and Fidelity argue that the Complaint alleges no facts to
establish either general or specific jurisdiction over them, because “[n]othing
alleged in the Complaint indicates any tie to the state of North Carolina other than
the citizenship of Plaintiff[;] [n]o events are alleged to have taken place in North
Carolina, nor are there any allegations that any Defendants are citizens of North
Carolina.” (Mem. in Supp. of Mot. to Dismiss at 3 [Doc. #12].)
Against Clark, JPB alleges that “[u]pon information and belief,” Clark
“conduct[s] a significant amount of business within the State of North Carolina”
and “[d]ue to the previously mentioned services, . . . Clark[] ha[s] established
minimum contacts necessary for the state of North Carolina to exercise personal
jurisdiction”. (Compl. ¶¶ 14, 15.) Clark has presented no evidence challenging
9
these allegations; however, these allegations are conclusory and lack any factual
support in the Complaint. There are no factual allegations to support a conclusion
that Clark, a Maryland company, maintained continuous, systematic, and
substantial operations in North Carolina such that it is essentially at home in the
state.
JPB also alleges that Clark is registered with the North Carolina Secretary of
State, (id. ¶ 12), and argues that, as a result, Clark subjected itself to the general
jurisdiction of this Court, (Mem. in Opp’n to Defs.’ Mot. to Dismiss (“Br. in Opp’n”)
at 6.) Long-standing precedent forecloses JPB’s argument that Clark’s registration
to do business in North Carolina is sufficient to subject it to the general jurisdiction
of this Court. See Public Impact, LLC, 117 F. Supp. 3d at 738. In Ratliff v. Cooper
Laboratories, Inc., 444 F.2d 745, 748 (1971), the Fourth Circuit Court of Appeals
explained,
We think the application to do business and the appointment of an
agent for service to fulfill a state law requirement is of no special
weight . . . . Applying for the privilege of doing business is one thing,
but the actual exercise of that privilege is quite another. The
principles of due process require a firmer foundation than mere
compliance with the state domestication statutes.
See also Public Impact, LLC, 117 F. Supp. 3d at 738 (citing district courts within
the Fourth Circuit applying Ratliff and finding that circuit law “forecloses Public
Impact’s argument that this court has general jurisdiction over BCG because it is
registered to do business in this State”).
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JPB offers nothing further in support of the exercise of general jurisdiction
over Clark than argument based solely upon information and belief. It argues that
“Clark [is] responsible for providing labor and materials, including subcontractors,
for construction projects that are believed to be located both inside and outside of
the State of North Carolina and which require that [Clark] engage and supervise
[its] various subcontractors.” (Br. in Opp’n at 7.) “Upon information and belief,
[Clark] repeatedly hired and supervised North Carolina individuals and entities on
numerous projects which are believed to be both inside and outside of the State of
North Carolina.” (Id.) These unsupported arguments that Clark provides labor and
materials for projects inside and outside of North Carolina and hired and supervised
North Carolinians on projects inside and outside the state, along with JPB’s
allegations, fall short of a prima facie showing that Clark’s business contacts with
North Carolina make it essentially at home here. In short, this Court lacks general
jurisdiction over Clark.
In support of the exercise of specific jurisdiction over Clark, JPB alleges in
its Complaint that Clark is registered to do business in North Carolina and “[u]pon
information and belief,” that Clark “conduct[s] a significant amount of business
within the State of North Carolina” and has, therefore, “established the minimum
contacts necessary” for jurisdiction. (Compl. ¶¶ 12, 14, 15.) Although Clark has
presented no evidence to the contrary, as above, there are no factual allegations to
support the conclusory allegation that Clark conducts significant business in North
Carolina, and registration to do business in the state is not, by itself, sufficient for
11
jurisdiction. JPB has not alleged that Clark reached into North Carolina to solicit or
initiate business, made in-person contact with JPB in North Carolina regarding their
business relationship, maintains offices or agents here, or owns property in the
state. The factual allegations of their relationship describe JPB as Clark’s third-tier
subcontractor whose workers were supervised at the George Washington
University work site by representatives from Clark, (id. ¶¶ 22, 26, 28), but there
are no other allegations of the nature, quality, and extent of their communications
about the business being transacted.
In its brief, JPB argues that “the solicitation, hiring and supervision of
Plaintiff, a North Carolina limited liability company, is exactly the type of business
in which [Clark is] engaged and for which [it has] become [a] domesticated foreign
entity”, and that “it is clear that [Clark has] purposefully and intentionally availed
[itself] and assented to the jurisdiction of the State of North Carolina”. (Br. in
Opp’n at 11.) However, there is no allegation (or evidence in support of JPB’s
argument) that Clark solicited JPB’s business or hired JPB (its third-tier
subcontractor), and the supervision by Clark of JPB took place in Washington, D.C.
It is not sufficient that JPB is located in North Carolina. In sum, JPB has not made
a prima facie showing that Clark purposefully availed itself of the privilege of doing
business in North Carolina, so there is no need to analyze the other specific
jurisdiction factors. The Court does not have jurisdiction – general or specific –
over Clark, and its motion to dismiss is granted.
12
In support of the exercise of general jurisdiction over Fidelity, JPB alleges
that “Fidelity conduct[s] a significant amount of business within the State of North
Carolina” and “[d]ue to the previously mentioned services, . . . Fidelity [has]
established the minimum contacts necessary for the state of North Carolina to
exercise personal jurisdiction”. (Compl. ¶¶ 14, 15.) Fidelity has presented no
contrary evidence, but, as above, these allegations are conclusory and lack any
factual support in the Complaint. There are no factual allegations that Fidelity
maintained continuous, systematic, and substantial operations in North Carolina
such that it is essentially home here.
JPB also alleges that Fidelity is registered with the North Carolina
Department of Insurance, (id. ¶ 13), and argues that, as a result, Fidelity has
subjected itself to this Court’s jurisdiction, (Br. in Opp’n at 6). However, as
explained above, registration with the state to be able to do business is, itself,
insufficient to support general jurisdiction.
In its brief, JPB argues that “Fidelity has approximately 796 agents licensed
by the North Carolina Commissioner of Insurance to provide services within the
State of North Carolina” and is itself licensed “to provide services in approximately
22 different lines of business”. (Id. at 6-7, 11 (citing apparent print-outs of
spreadsheets (Ex. D) and lines of business associated with Fidelity on the North
Carolina Department of Insurance website (Ex. C).) “As such,” JPB argues,
“Defendant Fidelity does a significant volume of business within the State of North
Carolina”. (Id. at 11.) While this information provides some support for the
13
exercise of jurisdiction, the remainder of JPB’s argument in support of general
jurisdiction over Fidelity is without any support and is based on JPB’s “belief”.
“Upon information and belief, each of these licensed agents are also physically
located within the State of North Carolina, and approximately 24 of these agents
are located within the City of Durham, North Carolina.” (Id. at 7.) This falls short
of evidencing continuous, systematic, and substantial business in North Carolina
such that Fidelity is essentially at home here. JPB has not made a prima facie
showing of general jurisdiction.
Similarly, the Court lacks specific jurisdiction over Fidelity. As it did with
Clark, JPB alleges in the Complaint that “[u]pon information and belief”, Fidelity is
registered to do business in North Carolina, and “[u]pon information and belief”,
Fidelity “conduct[s] a significant amount of business within the State of North
Carolina” and has, therefore, “established the minimum contacts necessary” for
jurisdiction. (Compl. ¶¶ 12, 14, 15.) Fidelity has presented no evidence to the
contrary, but, as above, there are no factual allegations to support the conclusory
allegation that Fidelity conducts significant business in North Carolina. However,
as previously noted, JPB has presented evidence that it claims shows 796 licensed
Fidelity agents in North Carolina and registration to provide twenty-two lines of
insurance business. (Br. in Opp’n at 11 (citing Exs. C & D).) This is some evidence
that Fidelity has agents in North Carolina, has deliberately engaged in significant
business in the state, and possibly has reached into North Carolina to solicit
business. However, other factors do not support a finding of purposeful availment.
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JPB has not alleged (or argued) that Fidelity initiated contact with JPB, reached
into North Carolina to solicit JPB’s business, made in-person contact with JPB in
North Carolina regarding their business relationship, or owns property or maintains
offices in North Carolina. There are no allegations of the nature, quality, and
extent of communications between JPB and Fidelity about the business being
transacted. Instead, the allegations of the nature, quality, and extent of the
business relationship are that Fidelity, a Maryland corporation, contracted with
Hamilton, a Delaware company, to serve as its surety for Hamilton’s work at
George Washington University where JPB worked as a subcontractor for Dancker
which was a subcontractor for Hamilton. (Compl. ¶¶ 4, 7, 9, 19, 22, 23, 24.)
These factors taken together do not support a finding that Fidelity purposefully
availed itself of the privilege of conducting business in North Carolina.
However, even if JPB had made a prima facie showing of purposeful
availment, this Court lacks specific jurisdiction over Fidelity because this suit does
not arise out of or nor is it related to Fidelity’s contacts with North Carolina. There
is no allegation that any activity or occurrence associated with the suit against
Fidelity took place in North Carolina. Instead, the unjust enrichment claim against
Fidelity arises out of Hamilton’s alleged failure to pay JPB for its work performed at
the George Washington University project – in Washington, D.C. The only
connection to North Carolina is JPB’s citizenship and location, which are
insufficient to support the exercise of jurisdiction over a foreign defendant. JPB
15
has failed to make a prima facie showing of general or specific jurisdiction over
Fidelity. Fidelity’s motion to dismiss is granted.
IV.
Just as Clark and Fidelity did, Dancker challenges the exercise of general
and specific jurisdiction over it and parrots the arguments of Clark and Fidelity,
supra at 9. (Mem. in Supp. of Mot. to Dismiss at 2-3 [Doc. #16].) In its
Complaint, JPB alleges that Dancker is registered to do business in North Carolina,
“[u]pon information and belief . . . conduct[s] a significant amount of business
within the State of North Carolina”, and “[d]ue to the previously mentioned
services, . . . [Dancker has] established the minimum contacts necessary for”
jurisdiction. (Compl. ¶¶ 10, 14, 15.) Not only is JPB’s conclusory allegation that
Dancker conducts a significant amount of business in North Carolina unsupported
by facts, but, as explained above, registration to do business in North Carolina is
also insufficient. Furthermore, the facts alleged about Dancker are about its
business at the George Washington University site, not about continuous,
systematic, and substantial operations in North Carolina. JPB alleges that it
entered into two contracts with Dancker to provide labor and materials for a
construction project at George Washington University. (Id. ¶ 19.) In turn, Dancker
operated as a subcontractor for Hamilton, which was a subcontractor for Clark –
all for work at the George Washington University site. (Id. ¶ 22.) Dancker, among
others, has allegedly failed to pay JPB in full for the work completed at the George
Washington University project. (Id. ¶¶ 33, 37-69.)
16
In its brief, JPB argues that Dancker is “responsible for providing labor and
materials, including subcontractors, for construction projects that are believed to
be located both inside and outside of the State of North Carolina and which require
that [Dancker] engage and supervise [its] various subcontractors.” (Br. in Opp’n at
7.) “Upon information and belief, [Dancker] repeatedly hired and supervised North
Carolina individuals and entities on numerous projects which are believed to be
both inside and outside of the State of North Carolina.” (Id.) These unsupported
arguments that Dancker provides labor and materials for projects inside and outside
of North Carolina and hired and supervised North Carolinians on projects inside and
outside the state, along with JPB’s allegations, fall short of a prima facie showing
that Dancker’s business contacts with North Carolina are continuous, systematic,
and substantial such that it is essentially at home here. The Court cannot exercise
general jurisdiction over Dancker.
Likewise, the Court cannot exercise specific jurisdiction over Dancker. JPB
alleges in its Complaint that Dancker is registered to do business in North Carolina,
“conduct[s] a significant amount of business within the State of North Carolina”,
and “[d]ue to the previously mentioned services” has “established minimum
contacts necessary for” jurisdiction. (Compl. ¶ 10, 14, 15.) As above, JPB’s
conclusory allegation that Dancker conducts significant business in North Carolina
lacks any factual support, and registration to do business in the state is not, by
itself, sufficient. Unfortunately for JPB, its other factual allegations do not lead to
a finding of purposeful availment. As previously noted, JPB alleges that it entered
17
into two contracts with Dancker to provide labor and materials at the George
Washington University project, but Dancker failed to pay JPB in full for its work.
(Id. ¶¶ 19, 33.) Dancker operated as a subcontractor for Hamilton, which was a
subcontractor for Clark, and, as a result, JPB took direction from Hamilton and
Clark representatives on site. (Id. ¶¶ 22, 26, 28.) As explained earlier, these
allegations show a connection between Dancker and Washington, D.C., not
between Dancker and North Carolina. There are no allegations that Dancker
reached into North Carolina to solicit or initiate business, deliberately engaged in
significant or long-term business activities in the state, made in-person contact
with JPB in North Carolina regarding their business relationship, contracted with
JPB that North Carolina law would apply, or owns property or maintains offices or
agents in the state. The allegations of the nature, quality, and extent of JPB’s and
Dancker’s communications about the business being transacted include the
existence of two contracts and Dancker’s instruction to JPB that representatives
from Hamilton and Clark would be supervising JPB on site. None of these
allegations support a finding of purposeful availment.
In its brief, JPB argues that “the solicitation, hiring and supervision of
Plaintiff, a North Carolina limited liability company, is exactly the type of business
in which [Dancker is] engaged and for which [it has] become [a] domesticated
foreign [entity].” (Br. in Opp’n at 11.) In addition, JPB argues that “[u]pon
18
information and belief, the agreements with [Dancker2] were accepted and became
valid and binding within the boundaries of [sic] State of North Carolina because
Plaintiff was physically within the boundaries of the State of North Carolina when
it accepted the proposed terms and communicated such acceptance to
[Dancker3].” (Id. at 11-12.) However, there is no support for these arguments that
Dancker solicited JPB’s business or, to the extent this is even argued, that it did so
by reaching into North Carolina. Neither JPB’s presence in North Carolina nor the
existence of a contract between JPB and Dancker is sufficient. JPB has failed to
make a prima facie showing that Dancker purposefully availed itself of the privilege
of conducting business in North Carolina, and the Court need not analyze the other
specific jurisdiction factors. Because this Court lacks both general and specific
jurisdiction over Dancker, its motion to dismiss is granted.
V.
For the reasons stated herein, IT IS HEREBY ORDERED that Clark
Construction Group, LLC’s and Fidelity and Deposit Company of Maryland’s Motion
to Dismiss [Doc. #11] is GRANTED because this Court lacks personal jurisdiction
2
In its Brief, JPB refers to having entered into agreements with “Defendants”,
referring to Dancker and Clark. (See Br. in Opp’n at 7-8.) However, JPB alleges
breach of contract only against Dancker and has specifically alleged the existence
of only two contracts – “Subcontract 14-00256” and “Subcontract 14-00127” –
according to which it was employed by Dancker. (Compl. ¶¶ 20, 20.a., 20.b., 3758.) As for Clark, JPB alleges that Dancker informed JPB that it “would be taking
on-site direction from representatives of Defendant Hamilton and Defendant Clark”,
(id. ¶ 26), but there is no allegation of a contract between JPB and Clark.
3
See supra n.2.
19
over these Defendants. IT IS FURTHER ORDERED that Dancker, Sellew &
Douglas, Inc.’s Motion to Dismiss [Doc. #15] be GRANTED because this Court
lacks personal jurisdiction over this Defendant. A judgment dismissing the case
will be entered contemporaneously with this Order.
This the 6th day of July, 2017.
/s/ N. Carlton Tilley, Jr.
Senior United States District Judge
20
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