Griffin Whitaker LLC v. Torres et al, No. 8:2010cv00725 - Document 20 (D. Md. 2010)
Court Description: MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 7/7/10. (sat, Chambers)
Download PDF
<![CDATA[
Griffin Whitaker LLC v. Torres et al Doc. 20 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : GRIFFIN WHITAKER, LLC : v. : Civil Action No. DKC 10-0725 : JERRY WAYNE TORRES, et al. : MEMORANDUM OPINION Presently pending and ready for resolution in this contract dispute are motions filed by Defendants Jerry Wayne Torres and Torres Advanced Enterprise Solutions, LLC, to dismiss for lack of personal jurisdiction (paper 8), and by Plaintiff Griffin Whitaker, LLC, for summary judgment (paper 4, 14).1 The issues are fully briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. follow, Defendants motion will be For the reasons that granted and Plaintiff s motions will be denied as moot. I. Background The following facts are either undisputed or construed in a light most favorable to Plaintiff. Plaintiff Griffin Whitaker, 1 Plaintiff filed a motion for summary judgment concomitantly with the filing of its complaint in state court. (Paper 4). Following removal by Defendants, Plaintiff filed a motion for entry of judgment (paper 14), citing Defendants failure to respond to its motion for summary judgment. Defendants filed papers opposing Plaintiff s motion for judgment on April 28, 2010. (Paper 18). Dockets.Justia.com LLC, a Maryland limited liability company, is a law firm located in Greenbelt, Maryland. Defendant Jerry Wayne Torres is a resident of the Commonwealth of Virginia, and Defendant Torres Advanced Enterprise Solutions, LLC ( TAES ), is a Delaware limited liability company with its principal place of business in Arlington, Virginia. Defendant Torres is the sole member of TAES. On or about August 4, 2008, Defendants executed a retainer agreement with Plaintiff to represent them in a law suit pending in the United States District Court for the Eastern District of Virginia. Plaintiff subsequently provided approximately hours of legal services related to the Virginia suit. 701 Over the course of Plaintiff s representation, Defendants never came to Plaintiff s offices in Maryland, but one deposition was conducted there and A. Jeff Ifrah, another attorney representing Defendants in the underlying matter, met with Plaintiff s attorneys in their Maryland offices on several occasions. When Plaintiff submitted invoices for services rendered in August and September 2009, Defendants refused to pay. This law suit followed. On January 7, 2010, Plaintiff filed its complaint in the Circuit Court breach of for Prince contract and George s quantum County, meruit Maryland, (paper concomitantly moved for summary judgment (paper 4). 2 alleging 2), and On March 24, 2010, Defendants removed the case to this court on the basis of diversity of citizenship (paper 1) and, one week later, filed the instant motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(2) (paper 8). II. Analysis When a court s power to exercise personal jurisdiction over a nonresident defendant Fed.R.Civ.P. 12(b)(2), resolved the by is the judge, challenged by jurisdictional with the burden a motion question on the is under to be plaintiff ultimately to prove grounds for jurisdiction by a preponderance of the evidence. Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003) (citing Mylan Labs, Inc. v. Akzo, N.V., 2 F.3d 56, 59-60 (4th Cir. 1993)). If the existence of jurisdiction turns on disputed facts, the court may resolve the challenge after a separate evidentiary hearing, or may defer ruling pending receipt relevant to the jurisdictional question. at 886 F.2d 673, 676 (4th Cir. 1989). chooses to rule without trial of evidence See Combs v. Bakker, Where, as here, the court conducting an evidentiary hearing, relying solely on the basis of the complaint, affidavits, and/or discovery materials, the plaintiff need only make a prima facie showing of personal jurisdiction. see also Mylan Labs., 2 F.3d at 60. Carefirst, 334 F.3d at 396; In determining whether the plaintiff has established a prima facie case, the court must 3 draw all reasonable inferences arising from the proof, resolve all factual disputes in the plaintiff s favor. and Mylan Labs, 2 F.3d at 60; Carefirst, 334 F.3d at 396. The nature of the claim and the defendant s contacts with the forum state determine whether a court may assert specific or general personal jurisdiction over the defendant. Johansson Corp. v. Bowness Constr. Co., 304 F.Supp.2d 701, 703 (D.Md. 2004). Specific personal jurisdiction applies where a controversy is related to or arises out of a defendant s contacts with the forum. S.A. v. Hall, Heitner, general 433 Helicopteros Nacionales de Colombia, 466 U.S. 408, U.S. 186, 204 jurisdiction, by continuous and maintains state. Helicopteros, 414 (1984) (1977)). contrast, systematic 466 U.S. at (quoting Shaffer A court may exercise only where a defendant contact 415 with (quoting the argues jurisdiction that insofar as this the court alleged may breach exercise of forum Perkins Benguet Consol. Mining Co., 342 U.S. 437, 438 (1952)). Plaintiff v. the v. Here, specific retainer agreement arises from Defendants contacts with the State of Maryland.2 2 The declaration of attorney Edward N. Griffin additionally states that Defendants have contracted for services and[/]or transacted business with individuals residing in the State of Maryland on numerous occasions, including with the plaintiffs in the underlying matter, who maintained an office in 4 A federal district court may exercise specific personal jurisdiction over a nonresident defendant if (1) an applicable state long-arm statute confers jurisdiction and (2) the assertion of that jurisdiction is consistent with constitutional due process. Nichols v. G.D. Searle & Co., 991 F.2d 1195, 1199 (4th Cir. 1993). Maryland s long-arm statute, Md. Code Ann., Cts. & Jud. Proc. § 6-103, authorizes the exercise of personal jurisdiction to the limits permitted by the Due Process Clause of the Fourteenth Amendment. See ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 710 (4th Cir. 2002), cert. denied, 537 U.S. 1105 (2003). Because it limits specific jurisdiction to cases in which the cause of action aris[es] from any act enumerated, however, a plaintiff relying upon the long-arm statute statutory Corp., 304 must provision F.Supp.2d still identify authorizing at 704 a specific jurisdiction. (quoting Ottenheimer Maryland Johansson Publishers, Rockville, Maryland. (Paper 13, Ex. 1, ¶¶ 12 13). To the extent that Plaintiff makes these assertions in support of an argument that general jurisdiction exists, they are insufficient to support such a claim. See Glynn v. EDO Corp., 641 F.Supp.2d 476, 486 (D.Md. 2009) ( Only when the continuous corporate operations within a state [are] thought 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 may a court assert general jurisdiction. (quoting Int l Shoe Co. v. Washington, 326 U.S. 310, 318 (1945)). The clear thrust of Plaintiff s opposition papers is that Defendants contacts with it pursuant to the retainer agreement give rise to specific jurisdiction in this court. The court will conduct its analysis accordingly. 5 Inc. v. Playmore, Inc., 158 F.Supp.2d 649, 652 (D.Md. 2001)). Although Plaintiff does not identify a specific statutory provision, it appears to rely on Md. Code Ann., Cts. & Jud. Proc. § 6-103(b)(1), which confers personal jurisdiction over a person that transacts any business or performs any character of work or service in the State. 3 In the constitutional whether the defendant s analysis, contacts the with crucial the forum issue state is are substantial enough that it should reasonably anticipate being haled into court there. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). A defendant has fair warning that forum s it might be subject to a jurisdiction if it purposefully directs its activities at forum residents and the litigation results from alleged injuries that arise out of or relate to those activities. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (citing Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774 Colombia, 466 U.S. at 414). (1984); Helicopteros Nacionales de Where a nonresident defendant has 3 Defendants contend that Plaintiff s failure to identify a statutory basis for jurisdiction is grounds for dismissal, citing Johansson Corp., 304 F.Supp.2d at 704 & n. 1. See also Sports Group, Inc. v. Protus IP Solutions, Inc., RDB 08-3388, 2009 WL 1921151, at *6 (D.Md. July 1, 2009); Schafler v. Euro Motor Cars, RWT-08-2334, 2009 WL 277625, at *2 n. 4 (D.Md. Feb. 5, 2009). Although Plaintiff, a law firm, certainly should be aware of this requirement, the court declines to dismiss on this ground. See Beyond Systems, Inc. v. Kennedy Western University, DKC 2005-2446, 2006 WL 1554847, at *5 (D.Md. May 31, 2006). 6 purposefully engaged in significant activities within the forum state or has created continuing obligations with residents of the forum state, the defendant has obtained the benefits and privileges of conducting business there and it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well. Burger King Corp., 471 U.S. at 476. In Johansson, 304 F.Supp.2d at 705, Judge Blake set forth the relevant considerations for analyzing minimum contacts in the context of a contract dispute involving an out-of-state defendant: The Supreme Court has made clear that an out-of-state party s contract with a party based in the forum state cannot automatically establish sufficient minimum contacts in the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). Instead, the court must perform an individualized and pragmatic inquiry into the surrounding facts such as prior negotiations, the terms of the contract, the parties actual course of dealing, and contemplated future consequences, in order to determine whether the defendant purposefully established minimum contacts within the forum. Id. at 479, 105 S.Ct. 2174; see also Mun. Mortgage & Equity v. Southfork Apartments Ltd. P ship, 93 F.Supp.2d 622, 626 (D.Md. 2000). Among the specific facts that courts have weighed are where the parties contemplated that the work would be performed, where negotiations were conducted, and where payment was made. Mun. Mortgage & Equity, 93 F.Supp.2d at 626 (internal quotation omitted). One of the most important factors 7 is whether the defendant initiated the business relationship in some way. See id. at 626-27 (quoting Nueva Eng'g, Inc. v. Accurate Elecs., Inc., 628 F.Supp. 953, 955 (D.Md. 1986)). Ultimately, the question is whether the contract had a substantial connection to the forum state. Burger King, 471 U.S. at 479, 105 S.Ct. 2174; Diamond Healthcare of Ohio, Inc. v. Humility of Mary Health Partners, 229 F.3d 448, 451 (4th Cir. 2000). Here, affidavit the of only evidence Edward N. submitted Griffin, a by member Plaintiff of the is law the firm, averring that: (1) the retainer agreement was drafted by [him] and the offer conveyed and[/]or entered into in the [f]irm s offices in Greenbelt, Maryland (paper 13, ex. 1, at ¶ 6); (2) the firm s attorneys participated in dozens of phone calls with Defendants [d]ozens of from boxes their of offices, documents received related to and maintained the underlying litigation, and received payments from Defendants in Maryland (id. at ¶¶ 7-9); (3) one deposition was conducted in Plaintiff s offices (id. at ¶ 10); and (4) Mr. Ifrah met with the firm s members in their Maryland offices on several occasions and was often directed by Mr. Torres to assist with the [f]irm s work in the [m]atter at that location (id. at 11). Even assuming the truth of these statements, Plaintiff has failed to establish a prima facie case for this court s jurisdiction. 8 exercise of personal First, Plaintiff has not set forth any evidence regarding which party initiated the business relationship that resulted in the retainer agreement, nor has it addressed any negotiations that led to the execution of the agreement or provided detail as to its terms. See CoStar Realty Information, Inc. v. Meissner, 604 F.Supp.2d 757, 766 (D.Md. 2009) (the essential factor in determining whether business transactions give rise to specific jurisdiction is whether the defendant initiated the contact ); Nueva Eng g, Inc. v. Accurate Electronics, Inc., 628 F.Supp. 953, 955 (D.Md. 1986) (noting that the Fourth Circuit seems to have adopted the determination of whether the defendant initiated the business relationship in some way as a dispositive factor ). asserts In his affidavit on behalf of Defendants, Mr. Torres that [t]he fact that plaintiffs have an office in Maryland was irrelevant to the decision to retain them, and that the plaintiff firm was retained because its lawyers are licensed in Virginia. (Paper 8, Ex. 1, at ¶¶ 6-7).4 These averments do not address whether Defendants actually initiated the contact agreement, that and resulted the court in the execution cannot assume of that the retainer they did, particularly where the affidavit submitted by Plaintiff fails to 4 Notably, Mr. Griffin, who appears to be one of two members of the firm, is not licensed to practice law in Virginia. (Paper 13, Ex. 1, at ¶ 3). 9 address this critical issue. See Mun. Mortgage & Equity, 93 F.Supp.2d at 627 (dismissing for lack of personal jurisdiction where the record demonstrated that the plaintiff courted the defendant s business). Moreover, agreement, made the fact phone that calls, Plaintiff received drafted the retainer documents and payments from Defendants, and conducted a deposition and met with Mr. Ifrah in its Maryland offices does not justify this court s exercise of personal jurisdiction. As Judge Motz recently explained in Frieman v. Flipping for Phonics, Inc., Civ. No. JFM-09-2903, 2010 WL 817192, at *1-2 (D.Md. Mar. 4, 2010): [T]o the extent that plaintiff relies upon his own work that he did for defendant in Maryland, his position was rejected by the Maryland Court of Special Appeals in Zavian v. Foudy, 130 Md.App. 689, 747 A.2d 764 (2000). There, the court expressly stated that a person s performance of professional services in Maryland would not support the assertion of personal jurisdiction over the corporation or other person for whom plaintiff performed the work in an action between the two. Id. at 700, 747 A.2d 764. Moreover, plaintiff has alleged no facts that would support an inference or a conclusion that he was defendant s agent, as opposed to an independent contractor. To accept his argument would, in effect, subject an out of state defendant to jurisdiction in Maryland solely because of plaintiff s unilateral activities in Maryland, regardless of the nature of the relationships between the plaintiff and the defendant and the total absence of any other contacts between defendant and Maryland. 10 In Zavian, a case relied upon by Defendants, a Maryland attorney sued four non-resident former clients for breach of personal management agreements. the defendants jurisdiction, motion the to After the circuit court granted dismiss attorney for appealed. lack The of Court personal of Special Appeals of Maryland considered two discrete claims: (1) whether the attorney s appellees, activities i.e., conducting making in Maryland phone negotiations, calls, provides as agent sending sufficient for the mailings, and contacts with Maryland for the exercise of personal jurisdiction, and (2) whether the appellant agent. In found in [a]ppellees Maryland, have apart had from sufficient her contacts activities with as their appellate court Zavian, 130 Md.App. at 695. considering persuasive a the first line of question, decisions the in the United States District Court for the Southern District of New York, the United States Court of Appeals for the Seventh Circuit, and the United States District Court for the Northern District of Illinois. Copeland v. Life Science Technologies, Ltd., No. 97 In Civ. 0456(SHS), 1997 WL 716915 (S.D.N.Y. Nov. 17, 1997), the court explained that [i]n a suit between an agent and his out-ofstate principal, there is no jurisdiction over the principal where within the the plaintiff-agent State, rather is relying than 11 on on his own defendant s activities independent activities. omitted). Copeland, 1997 WL 716915, at *1 (internal marks Rather, a plaintiff must point to acts by the defendant, independent of the plaintiff-agent s acts, which are sufficient in themselves to confer jurisdiction. Kulas v. Adachi, No. Civ. (S.D.N.Y. May 16, 1997)). 6674(MBM), 1997 WL Id. (quoting 256957 at *3 Similarly, in Emmet, Marvin & Martin v. Maybrook, Inc., No. 90 Civ. 3105, 1990 WL 209440, at *2 (S.D.N.Y. Dec. 12, 1990), the court found that the New York Court of Appeals had made clear that where an attorney sues an out-of-state client, the personal jurisdiction inquiry must focus on the client s purposeful activities in the state, not on the attorney s activities on behalf of the client. See also Orton v. Woods Oil & Gas Co., 249 F.2d 198, 202-03 (7th Cir. 1957) ( the plaintiffs for performance the benefit of of the professional defendant as services herein by outlined, standing alone, [is] insufficient to bring defendant within any reasonable construction of the [Illinois long-arm statute]. ); Jacobson v. Stram, No. 80 C 1228, 1980 U.S. Dist. LEXIS 15437 at *5 (N.D.Ill. Oct. 29, 1980) ( An attorney s mere performance of professional services in Illinois on behalf of an out-of-state client is not sufficient to subject the foreign party to in personam jurisdiction in Illinois. ); Geldermann Dussault, 384 F.Supp. 566, 573 (N.D.Ill. 1974) (same). 12 & Co. v. Based on those decisions, the Zavian court concluded, in response to the first question, that the attorney s Maryland activities as agent for the nonresident appellees subject them to Maryland s long arm statute. 699. The attorney s court added services on that it behalf also of did her does not 130 Md.App. at not former consider the clients to constitute transacting business in Maryland: The professional services rendered by appellant in Maryland for the nonresident appellees could best be termed as business from Maryland, or as the Supreme Court put it, unilateral activity, rather than business within Maryland. These services could have been conducted from [anywhere]. Zavian, 130 Md.App. at 700 (citing Hanson v. Denckla, 357 U.S. 235, 253 (1958) (footnote omitted) (emphasis in original)). In addressing the second question, i.e., whether the nonresident appellees had sufficient contacts with Maryland to enable Maryland s courts to exercise personal jurisdiction over them, the appellate court focused on the appellees contacts with the State. Id. The court found: Although the appellees contacted appellant to obtain her professional services, it was because her name appeared on a list of lawyers willing to perform such services for female athletes and not because she was a Maryland lawyer. . . . In fact, appellees had little or no negotiations with appellant. She simply prepared, mailed, or faxed proposed personal management agreements to each appellee, and each appellee executed and mailed or faxed the 13 agreement to appellant. The appellees did not visit Maryland for purposes of receiving appellant s services. Although appellant s suit claims unpaid invoices, this means only that appellant has not received a check from California, North Carolina, or Connecticut [the states in which the appellees resided]. Id. at 701. that the Under those circumstances, the court determined appellees did not purposefully engage in adequate activities in Maryland to avail them either of the benefits or the protection of Maryland law. Plaintiff arguing that makes it a weak appears, Id. at 702. attempt to contrary distinguish to the Zavian, [d]efendant s assertion, that the attorney was merely making phone calls as part of a marketing relationship, and that one of the decisions upon which the court relied appears similarly to reflect factual situations in which there are sparse contacts with the forum. (Paper 13, ¶¶ 8, 9). These arguments misconstrue the critical point of the decision, namely, that unilateral in-state activities on behalf of a non-resident client are insufficient to establish personal jurisdiction over the client. legal argument opposition is advanced that Mr. by Plaintiff Griffin s in affidavit support is The only of sufficient its to rebut the allegation of lack of personal jurisdiction, thus the burden to refute that evidence shifts to the [d]efendants, citing Burger King Corp., 471 U.S. at 477, and that granting Defendant s motion would unfairly increase the collection costs 14 to Plaintiff defense, in convenient matter making thus a it and in which difficult effective there for no legitimate Plaintiff relief, to quoting Volkswagen Corp., et al., 444 U.S. at 292. 14). is obtain World-Wide (Paper 13, ¶¶ 13, The only burden referred to in the citation to Burger King, however, refers to the burden placed upon a defendant in defending a suit in the plaintiff s chosen forum, a factor to be considered [o]nce purposefully State[.] interest it has established been decided minimum contacts Burger King, 471 U.S. at 476. in obtaining convenient that and a within defendant the forum While the plaintiff s effective relief is a countervailing factor to be weighed against the burden to the defendant, World-Wide Volkswagen Corp., et al., 444 U.S. at 292, this analysis only becomes relevant once the plaintiff has met its initial burden of demonstrating that personal jurisdiction in its chosen forum is proper. That showing is precisely what is lacking here. Although appears that, Mr. Griffin s like the affidavit attorney in is somewhat Zavian, he vague, drafted it the retainer agreement in Plaintiff s office and submitted it to Defendants, who then signed and returned it. It is undisputed that Defendants never set foot in Plaintiff s Maryland offices and that Plaintiff s performance of the agreement was to occur in Virginia. To the extent that the attorneys of the plaintiff 15 firm cite behalf of work they performed Defendants, that in work their was Maryland clearly offices on unilateral in nature, and those activities alone are insufficient to establish personal jurisdiction over Defendants. Plaintiff has put forth no evidence of Defendants independent contacts with Maryland sufficient to confer personal jurisdiction upon them. Plaintiff additionally requests that the court consider granting jurisdictional discovery to permit it to probe the veracity of Defendants claim of an absence of contacts with the State of Maryland. (Paper 13, ¶ 15). Plaintiff claims to know of at least one business relationship with an entity with an office in Maryland besides the Plaintiff on the part of the Defendant, and asserts that discovery will show that there are a multitude of business contacts with persons and entities in this State. (Id.). Defendants argue that this request should be denied as speculative. The discovery Federal Rules of that broad in is Civil scope Procedure and grant freely permit district courts broad discretion in [their] resolution of discovery problems that arise in cases pending before [them]. Mylan Labs, Inc., 2 F.3d at 64 (quoting In re Multi-Piece Rim Prods. Liab. Litig., 653 F.2d 671, 679 (D.C. Cir. 1981)) (alterations in original). When a plaintiff offers only speculation or conclusory assertions about [a defendant s] contacts with a forum state in 16 the face of specific denials by the defendant, the court is within its discretion to jurisdictional discovery. also Rich v. KIS deny the plaintiff s request for Carefirst, 334 F.3d at 402-03; see Cal., Inc., 121 F.R.D. 254, 259 (M.D.N.C. 1988). Here, having devoted the vast majority of its opposition papers to its claim that Defendants are subject to specific personal jurisdiction, Plaintiff appears to request jurisdictional discovery in the hope that it may find a basis for asserting general jurisdiction. Mr. Torres affidavit clearly states, however, that TAES does not maintain an office in the State of Maryland, nor has it ever done any business or provided services to any customers in the State of Maryland. (Paper 8, Ex. 2, at ¶ 14). In rebuttal, Plaintiff contends that the plaintiff in the underlying litigation, which arose out of a business dispute with Rockville, Maryland. Defendants, maintains an (Paper 13, Ex. 1, at ¶ 13). office in Defendants attach to their reply papers a copy of the underlying complaint in which the plaintiffs in that case assert citizens and residents of the State of Florida. that they are (Paper 19, Ex. 1, at ¶¶ 4-5). Under these jurisdictional nothing more circumstances, discovery than will conclusory be Plaintiff s denied, assertions 17 as request Plaintiff about for offers [Defendants ] contacts with a forum state, Carefirst, 334 F.3d at 402-03, which Defendants have specifically denied. [T]he [c]ourt need not permit even limited discovery confined to issues of personal jurisdiction should it conclude that such discovery will be a fishing expedition, Rich, 121 F.R.D. at 259, and that appears to be the case here. III. Conclusion For the foregoing reasons, Defendants motion to dismiss will be granted and Plaintiff s motions for summary judgment and for entry of judgment will be denied as moot. A separate order will follow. ________/s/_________________ DEBORAH K. CHASANOW United States District Judge 18
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
