UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) EDWARD WALKER DEAN, ) ) Plaintiff, ) ) Civil Action No. 09-2235 (EGS) v. ) ) EDWARD WALKER, et al., ) ) Defendants. ) )

MEMORANDUM OPINION

Pending before the Court is Defendant Mark Sypniewski’s

Motion to Dismiss pursuant to Rules 12(b)(2) and 12(b)(6) of the

Federal Rules of Civil Procedure. Upon consideration of the

motion, the response, the reply and surreply thereto, the

applicable law, and for the following reasons, the Court

concludes that it lacks personal jurisdiction over Defendant

Sypniewski. At the request of plaintiff, however, the Court will

exercise its discretion to transfer plaintiff’s action against

Defendant Sypniewski to the United States District Court for the

Eastern District of Michigan.

I. FACTUAL BACKGROUND

Plaintiff Edward Walker Dean brought this diversity action

against Defendant Edward Walker, Defendant W Industries, and

Defendant Sypniewski. In his complaint, plaintiff alleges

(i) breach of contract, (ii) willful, malicious and wanton

misconduct, and (iii) tortious interference with contract. See Compl. ¶¶ 8-18. With regards to Defendant Sypniewski, plaintiff

alleges, among other things, that Sypniewski “knew that

[plaintiff] had a Consulting Agreement with W [Industries],”

“made threats with the intent of causing the termination of the

Consulting Agreement between W [Industries] and [plaintiff],” and

“in fact induced W [Industries] to breach its Consulting

Agreement with [plaintiff] and interfered with the economic [sic]

advantageous relationship between [plaintiff] and W

[Industries].” Compl. ¶¶ 17, 18.

In response, Defendant Sypniewski filed a motion to dismiss

arguing that the Court lacks personal jurisdiction over him “as

his limited contacts with the District of Columbia have been

undertaken solely at the direction of [his employer],” and that

plaintiff fails to allege the necessary facts to state a claim

for tortious interference with a contract. Def.’s Mot. at 1-2.

This motion is now ripe for determination by the Court.

II. LEGAL STANDARD

A. Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(2)

A plaintiff bears the burden of establishing a factual basis

for asserting personal jurisdiction over a defendant. See Crane

v. N.Y. Zoological Soc’y,

(D.C. Cir. 1990).

Bare allegations or conclusory statements are insufficient to

establish personal jurisdiction; instead, the plaintiff “must

allege specific facts connecting each defendant with the forum.”

2 GTE New Media Servs., Inc. v. Ameritech Corp.,

(D.D.C. 1998). When determining whether personal jurisdiction

exists over a defendant, the Court need not treat all of a

plaintiff’s allegations as true. Instead, the Court “may receive

and weigh affidavits and any other relevant matter to assist it

in determining the jurisdictional facts.” United States v.

Philip Morris, Inc.,

, 120 n.4 (D.D.C. 2000)

(internal quotation marks and citation omitted). Any factual

discrepancies with regard to the existence of personal

jurisdiction, however, must be resolved in favor of the

plaintiff. See Crane,

.

B. Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6)

A motion to dismiss under Rule 12(b)(6) tests the legal

sufficiency of a complaint. Browning v. Clinton,

(D.C. Cir. 2002). A complaint must contain “a short and

plain statement of the claim showing that the pleader is entitled

to relief, in order to give the defendant fair notice of what the

. . . claim is and the grounds upon which it rests.” Bell Atl.

Corp. v. Twombly,

(2007) (internal quotation

marks and citations omitted). “‘[W]hen ruling on a defendant’s

motion to dismiss, a judge must accept as true all of the factual

allegations contained in the complaint[,]’” Atherton v. D.C.

Office of the Mayor,

(D.C. Cir. 2009) (quoting

Erickson v. Pardus,

(2007)), and grant the

3 plaintiff “the benefit of all inferences that can be derived from

the facts alleged.” Kowal v. MCI Commc’ns Corp.,

(D.C. Cir. 1994). A court must not, however, “accept

inferences drawn by plaintiffs if such inferences are unsupported

by the facts set out in the complaint. Nor must the court accept

legal conclusions cast in the form of factual allegations.”

In addition, “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”

Ashcroft v. Iqbal,

(2009). “[O]nly a

complaint that states a plausible claim for relief survives a

motion to dismiss.”

III. ANALYSIS

This case arises under the Court’s diversity jurisdiction.

See Compl. ¶ 6 (asserting jurisdiction under

).

Accordingly, whether the Court has personal jurisdiction over

Sypniewski is a function of District of Columbia law. Crane, 814

F.2d at 762. Because plaintiff does not allege that Sypniewski

is a resident of the District of the Columbia, the Court may

exercise personal jurisdiction over the defendant only if

plaintiff had plead sufficient facts to satisfy (1) the District

of Columbia long-arm statute,

,1 and (2) the

1 Section 13-423(a) provides, in relevant part, that: “A District of Columbia court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person’s -(1) transacting any business in the District of Columbia; (2) contracting to supply

4 constitutional requirements of due process.2

In this case, plaintiff appears to base his argument that

the long-arm statute confers personal jurisdiction over

Sypniewski for his tortious interference claim on both

§§ 13-423(a)(1) and (4): i.e., “transacting any business in the

District of Columbia” and “causing tortious injury in the

District of Columbia by an act or omission outside the District

of Columbia.” See Pl.’s Opp’n ¶¶ 11-12 (citing § 13-423(a)(1));

Pl.’s Opp’n ¶ 8 (asserting that “Sypniewski[’s] acts in inducing

the breach of Dean’s Consulting Agreement which was to be

performed in Washington, D.C. produced a result in D.C.”). The

Court finds both of these arguments unpersuasive.

services in the District of Columbia; (3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia; (4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia . . . [.]” 2 To satisfy the Due Process Clause, a plaintiff must show that the defendant “purposefully avail[ed] himself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws,” Kopff v. Battaglia,

(D.D.C. 2006) (quoting Hanson v. Denckla,

(1958)), and that the defendant has “‘minimum contacts’ . . .[and] ‘conduct and connection with the forum [s]tate . . .such that he should reasonably anticipate being haled into court there.’” GTE New Media, 199 F.3d at 1347 (citing Int’l Shoe Co. v. Washington,

(1945); World-Wide Volkswagen Corp. v. Woodsen,

(1980)).

5 First, with regards to § 13-423(a)(1), Defendant Sypniewski

avers that he has “no personal business contacts with the

District of Columbia,” and has “never transacted any personal

business within the District of Columbia.” Declaration of Mark

Sypniewski (“Sypniewski Decl.”) ¶ 3. As plaintiff fails to

allege any facts to the contrary, see Crane,

(discussing the plaintiff’s burden to establish a factual basis

for asserting personal jurisdiction), the Court finds that

plaintiff has failed to establish long-arm jurisdiction under

§ 13-423(a)(1).

Nor can plaintiff establish personal jurisdiction pursuant

to § 13-423(a)(4). Even assuming the truth of plaintiff’s

assertion that “Sypniewski[’s] acts in inducing the breach of

[his] Consulting Agreement . . . produced a result in D.C.,” the

Court finds that plaintiff has failed to establish that Defendant

Sypniewski “regularly does or solicits business, engages in any

other persistent course of conduct, or derives substantial

revenue from goods used or consumed, or services rendered, in the

District of Columbia[.]”

(a)(4). The extent

of Sypniewski’s contacts with the District of Columbia are (i) a

four-day trip that he took with his family as a tourist in 2002,

Sypniewski Decl. ¶ 3, and (ii) attendance at two conferences on

behalf of his employer in March 2009 and March 2010, Sypniewski

Decl. ¶ 8. As none of these contacts relate to the allegations

6 contained in this lawsuit, the Court finds that such sporadic

contact is simply insufficient to establish a “regular” or

“persistent” course of conduct in the District of Columbia as

required by § 13-423(a)(4). See, e.g., Urban Inst. v. FINCON

Servs.,

(D.D.C. 2010) (finding that

three trips to solicit business in the District of Columbia did

not create a persistent course of conduct). While plaintiff

asserts that because “Sypniewski does not eliminate phone calls,

mail, e-mail, or other forms of contact in the District of

Columbia . . . it should be accepted that [the defendant] has had

sufficient contacts with the District of Columbia for this Court

to obtain jurisdiction over him,” Pl.’s Opp’n ¶ 9, the Court

finds this argument both speculative and unpersuasive. See

generally GTE New Media Servs.,

(requiring

the plaintiff to allege “specific facts connecting each defendant

with the forum”); see also FC Inv. Group LC v. IFX Mkts., Ltd.,

, 1095 n.8, 1096 n.9 (D.C. Cir. 2008) (“regular”

telephone calls to the District of Columbia insufficient to

establish long-arm jurisdiction under either §§ 13-423(a)(1) or

(a)(4)). Finally, in light of Sypniewski’s sworn declaration

describing his minimal contacts with the District of Columbia,

the Court concludes that jurisdictional discovery would be

futile, and therefore DENIES plaintiff’s request for

jurisdictional discovery. See GTE New Media Servs., 199 F.3d at

7 1351 (explaining that jurisdictional discovery is justified only

if the plaintiff reasonably “demonstrates that it can supplement

its jurisdictional allegations through discovery”).

In conclusion, after closely considering the jurisdictional

allegations in the complaint, plaintiff’s opposition and

surreply, and Sypniewski’s declaration, the Court holds that

plaintiff has failed to allege specific, non-conclusory

allegations that establish personal jurisdiction over Sypniewski

under the District of Columbia’s long-arm statute.3 Because the

Court lacks personal jurisdiction over Defendant Sypniewski, the

Court will exercise its discretion to transfer this action to

Sypniewski’s home forum - the United States District Court for

the Eastern District of Michigan. See Naartex Consulting Corp.

v. Watt,

(D.C. Cir. 1983) (“The Court may

transfer an action even though it lacks personal jurisdiction

over the defendants.”); see also

(a) (permitting

courts, in the interest of justice, to transfer an action to any

other district where it could have been brought).4 The Court

3 As plaintiff has failed to establish this Court’s personal jurisdiction over Defendant Sypniewski pursuant to either §§ 13-423(a)(1) or (a)(4), the Court does not have to resolve “whether the exercise of personal jurisdiction is reasonable or fair [based on] [the District of Columbia’s] ‘interest in adjudicating the dispute.’” Exponential Biotherapies, Inc. v. Houthoff Buruma N.V.,

(D.D.C. 2009) (quoting World-Wide Volkswagen,

). 4 In his surreply, plaintiff states that he “has no objection to this court transferring venue to the [E]astern

8 therefore declines to consider the merits of defendant’s motion

to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).

IV. CONCLUSION

For the foregoing reasons, the Court concludes that it lacks

personal jurisdiction over Defendant Sypniewski. Accordingly,

plaintiff’s action against Defendant Sypniewski will be

transferred to the United States District Court for the Eastern

District of Michigan. A separate Order accompanies this

Memorandum Opinion.

SO ORDERED.

Signed: EMMET G. SULLIVAN United States District Judge December 23, 2010

[D]istrict of Michigan if it feels it has no jurisdiction.” Pl.’s Surreply at 3.

9