Okolie v. Future Services General Trading & Contracting Company, W.L.L.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________

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CHINYE OKOLIE and TYRONE DUCKETT, )

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Plaintiffs, )

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v. ) Civ. Action No. 13-1874 (EGS)

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FUTURE SERVICES GENERAL TRADING )

& CONTRACTING COMPANY, W.L.L., )

)

Defendant. )

__________________________________)

MEMORANDUM OPINION

Chinye Okolie and Tyrone Duckett bring this lawsuit alleging

that Future Services General Trading and Contracting Company

(“Future Services”) injured them by negligently causing a car

accident in Kuwait on December 4, 2010. Pending before the Court

is Future Services’s motion to dismiss for lack of personal

jurisdiction. Upon consideration of the motion, the response and

reply thereto, the applicable law, and the entire record, the

Court GRANTS Future Services’s motion.

I. Background

Chinye Okolie and Tyrone Duckett are residents of Texas. First

Am. Compl., ECF No. 16 ¶ 4. In 2010, they appear to have been

working with the United States in some capacity in Kuwait. See

id. ¶¶ 5–6, 9, 13–15. Future Services is a company based in

Kuwait that contracted to provide vehicles to the United States

Government for use in Kuwait. See id. ¶¶ 5–6. The contract

between Future Services and the United States contained a clause

selecting the Court of Federal Claims as the appropriate forum

for the resolution of contract-related disputes. See id. ¶ 5.

Future Services previously contracted to provide trucks to the

United States Government for use in Iraq. See Ex. A to Def.’s

Mot. to Dismiss, ECF No. 18-1. In 2009, Future Services filed a

lawsuit against the United States in the Court of Federal

Claims—as required by the contract between the two parties—

alleging that the United States had failed to return those

trucks at the end of the lease term. See First Am. Compl., ECF

No. 16 ¶ 5; Mem. in Supp. of Mot. to Dismiss, ECF No. 18 at 3.

On December 4, 2010, the plaintiffs were riding in a Future

Services vehicle and driving alongside another Future Services

vehicle. See id. ¶¶ 9, 11. The drivers of both vehicles “were

operating them as the agents, servants, employees and/or

representatives of the Defendant.” Id. ¶ 12. The drivers began

to race each other “at a high speed,” and then the vehicle in

which the plaintiffs were traveling “slammed into a vehicle

stopped in front of it.” Id. ¶ 11.

Plaintiffs filed this lawsuit on November 26, 2013, alleging

that Future Services negligently caused the accident. See

Compl., ECF No. 1. After some delay in effecting service of

process due to difficulties conducting service in Kuwait,

plaintiffs filed in July 2014 proof that the defendant had been

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served. See Service Aff., ECF No. 9. Plaintiffs subsequently

filed an amended complaint. See First Am. Compl., ECF No. 16. On

October 3, 2014, Future Services moved to dismiss the First

Amended Complaint, arguing that the Court lacks personal

jurisdiction. See Mem. in Supp. of Mot. to Dismiss (“Mem.”), ECF

No. 18. The plaintiffs oppose the motion. See Opp. to Mot. to

Dismiss (“Opp.”), ECF No. 20. Future Services filed its reply

brief on October 23, 2014. See Reply in Supp. of Mot. (“Reply”),

ECF No. 21. The motion is now ripe for adjudication.

II. Analysis

Under Federal Rule of Civil Procedure 12(b)(2), a plaintiff

bears the burden of establishing a factual basis for personal

jurisdiction. See Crane v. N.Y. Zoological Soc’y, 894 F.2d 454,

456 (D.C. Cir. 1990). To meet that burden, the plaintiff “must

allege specific acts connecting [the] defendant with the forum.”

Second Amendment Found. v. U.S. Conf. of Mayors, 274 F.3d 521,

524 (D.C. Cir. 2001) (alteration in original). The Court need

not treat all of a plaintiff’s allegations as true; rather, it

“may receive and weigh affidavits and other relevant matter to

assist it in determining the jurisdictional facts.” Buesgens v.

Brown, 567 F. Supp. 2d 26, 31 (D.D.C. 2008) (quotation marks

omitted).

The Court may exercise one of two types of personal

jurisdiction: “general or all-purpose jurisdiction, and specific

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or case-linked jurisdiction.” Goodyear Dunlop Tires Operations,

S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011). The existence of

general jurisdiction permits the Court to hear “any and all

claims” brought against the defendant. See id. By contrast,

“specific jurisdiction is confined to adjudication of issues

deriving from, or connected with, the very controversy that

establishes jurisdiction.” Id. (quotation marks omitted).

Assessing whether the Court may exercise either type of

jurisdiction “typically implicates a state’s jurisdictional

statute or rule.” Alkanani v. Aegis Defense Servs., 976 F. Supp.

2d 13, 21 (D.D.C. 2014) (quotation marks and alteration

omitted); see also Daimler AG v. Bauman, 134 S. Ct. 746, 753

(2014) (“Federal courts ordinarily follow state law in

determining the bounds of their jurisdiction over persons.”).

The D.C. Code provides a statute that speaks to general

jurisdiction over foreign corporations, D.C. Code § 13-334, and

another that speaks to specific jurisdiction, D.C. Code § 13-

423. See Gonzalez v. Internacional de Elevadores, S.A., 891 A.2d

227, 232 (D.C. 2006).1

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Plaintiffs appear to be under the erroneous belief that a third

method of establishing personal jurisdiction exists: When

exercising jurisdiction “will not offend traditional notions of

fair play and substantial justice” by virtue of the forum being

an efficient location for resolving the dispute. See Opp. at 6–

7. This is an inaccurate statement of the law, which

contemplates the exercise of personal jurisdiction only when the

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A. The Court May Not Exercise General Jurisdiction.

The District of Columbia general-jurisdiction statute permits

the exercise of personal jurisdiction over “a foreign

corporation doing business in the District.” Id. § 13-334(a).

This jurisdiction is contingent upon that corporation having

been served through “the agent of the corporation or person

conducting its business, or, when he is absent and can not be

found, by leaving a copy at the principal place of business in

the District, or, where there is no such place of business, by

leaving a copy at the place of business or residence of the

agent in the District.” Id. If a plaintiff fails to serve the

foreign corporation in the District in this manner, she is

“foreclosed from benefiting from [the statute’s] jurisdictional

protection.” Gonzalez, 891 A.2d at 233 (quotation marks

omitted); see also Gowens v. Dyncorp, 132 F. Supp. 2d 38, 42

(D.D.C. 2001) (where plaintiff served foreign-corporation

defendant “at its headquarters in Virginia,” service did “not

meet the requirements of D.C. Code § 13-334” and personal

jurisdiction was therefore lacking). It is undisputed that

plaintiffs served the defendant in Kuwait, not the District of

Columbia, so the Court may not exercise general jurisdiction.

See Mem. at 14–15; Service Aff., ECF No. 9.

requirements of specific or general jurisdiction have been met.

See, e.g., Goodyear, 131 S. Ct. at 2851.

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In any event, plaintiffs’ allegations would not establish

general jurisdiction. The scope of the phrase “doing business”

as used in the D.C. Code has been found to be “co-extensive with

the reach of” general jurisdiction under the Due Process Clause.

Day v. Corner Bank, 789 F. Supp. 2d 150, 155–56 (D.D.C. 2011).

The Due Process Clause permits “[a] court [to] assert general

jurisdiction over foreign . . . corporations . . . when their

affiliations with the State are so ‘continuous and systematic’

as to render them essentially at home in the forum State.”

Goodyear, 131 S. Ct. at 2851. It is undisputed that Future

Services is not incorporated in the District of Columbia and

does not have its principal place of business here. See Mem. at

16; Opp. at 7–10. Indeed, the only contacts with the District

that the plaintiffs allege are: (1) a lawsuit filed by Future

Services in the Court of Federal Claims regarding an unrelated

contract; and (2) the existence of contracts with the United

States that contain a clause selecting the Court of Federal

Claims as the appropriate forum for the resolution of disputes

regarding those contracts. See First Am. Compl., ECF No. 16 ¶ 5;

Opp. at 7–12. These minimal contacts are nowhere near sufficient

to show that Future Services is “essentially at home” in the

District of Columbia. Goodyear, 131 S. Ct. at 2851.2

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To the extent that plaintiffs’ mention of Marshall v. I-Flow,

LLC, 856 F. Supp. 2d 104 (D.D.C. 2012) is intended to support a

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B. The Court May Not Exercise Specific Jurisdiction.

The District of Columbia specific-jurisdiction statute

authorizes the exercise of personal jurisdiction under certain

enumerated circumstances, including when the defendant has

“transact[ed] any business in the District of Columbia.” D.C.

Code § 13-423(a)(1). The D.C. Court of Appeals has indicated

that the “transacting business” test is “coextensive with the

Due Process Clause of the Fifth Amendment.” Gonzalez, 891 A.2d

at 234. Accordingly “the defendant must have minimum contacts

with the forum so that exercising personal jurisdiction over it

would not offend traditional notions of fair play and

substantial justice.” Id. (quotation marks omitted). “When

jurisdiction over a person is based solely upon this section,

only a claim for relief arising from acts enumerated in this

section may be asserted against him.” Id. § 13-423(b).

Plaintiffs raise two actions—the existence of contracts with the

finding that general jurisdiction exists in this case, Opp. at

5, plaintiffs are mistaken. Marshall found general jurisdiction

on the basis of allegations, not present here, that:

Defendant has established and benefits from a

partnership with the George Washington University

Hospital, devotes an entire sales region to sales in

Washington, D.C., profits from sales . . . to every

major Washington, D.C. Hospital, and has obtained

expert medical consulting services of prominent

Washington, D.C. medical facilities and physicians.

Marshall, 856 F. Supp. 2d at 108 (quotation marks and alteration

omitted).

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United States that include forum-selection clauses designating

the Court of Federal Claims as the appropriate forum for the

resolution of contract disputes and Future Services’s lawsuit

against the United States in the Court of Federal Claims—as

bases for specific jurisdiction. See First Am. Compl., ECF No.

16 ¶ 5; Opp. at 7–12.

The contract-related contacts may not be considered due to the

“‘government contacts’ exception” to the specific-jurisdiction

rule, which provides that “a nonresident’s entry into the

District of Columbia for ‘the purpose of contacting federal

governmental agencies cannot serve as a basis for personal

jurisdiction.’” Alkanani, 976 F. Supp. 2d at 25 (quoting Savage

v. Bioport, Inc., 460 F. Supp. 2d 55, 62 (D.D.C. 2006)). Such

contacts are “excluded from ‘the jurisdictional calculus.’” Id.

(quoting Savage, 460 F. Supp. 2d at 62); see also United States

v. Ferrara, 54 F.3d 825, 831 (D.C. Cir. 1995) (contacts with

federal agencies within the District of Columbia “will not give

rise to personal jurisdiction”).3

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Plaintiffs appear to argue that the Court may exercise personal

jurisdiction because the contract between Future Services and

the United States regarding the vehicles in which plaintiffs

were riding is covered by 48 C.F.R. § 52.228-8, which makes a

federal-government contractor “liable for . . . all actions or

claims for loss of or damage to property or the injury or death

of persons, resulting from the fault, negligence, or wrongful

act or omission of the Contractor.” Plaintiffs’ argument is far

from clear, but to the extent they intend to argue that this

provision constitutes a waiver of personal jurisdiction or

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Even if both sets of contacts could be considered, they fail

to satisfy the requirement that the facts giving rise to the

cause of action “aris[e] from” the minimum contacts that form

the basis for personal jurisdiction. See D.C. Code § 13-423(b);

see also Novak-Canzeri v. Saud, 864 F. Supp. 203, 206 (D.D.C.

1994) (“The claim itself must have arisen from the business

transacted in the District or there is no jurisdiction.”).

The alleged negligent operation of vehicles by Future Services

in Kuwait and resulting injuries to the plaintiffs are extremely

attenuated from Future Services’s negotiation of contracts with

the United States. Indeed, “an injury sounding in tort does not

‘arise from’ a contract for services for the purpose of specific

jurisdiction.” Alkanani, 976 F. Supp. 2d at 27. Plaintiffs’

argument to the contrary borders on the absurd:

It can be said “but for” [sic] the agreement by Future

Services to consent to the jurisdiction of Courts in

the District of Columbia, it would not have received

the contract with the U.S. Government, and the

Plaintiffs would not have been injured by Defendant’s

automobiles in which they were riding in [sic] at the

time of their injures [sic].

Opp. at 11. “The critical test is whether the nonresident’s

conduct and connection with the forum state are such that he or

she should reasonably anticipate being haled into court there.”

consent thereto, the Court agrees with the Eleventh Circuit that

“[t]his section . . . makes no mention of a waiver of personal

jurisdiction and does not alter the required constitutional

analysis that the court must consider.” Baragona v. Kuwait Gulf

Link Transport Co., 594 F.3d 852, 855 (11th Cir. 2010).

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Trerotola v. Cotter, 601 A.2d 60, 64 (D.C. 1991) (quotation

marks and alteration omitted). Future Services could not have

anticipated being haled into a District of Columbia court in

connection with an accident that occurred in Kuwait, based

solely upon Future Services’s consent to the Court of Federal

Claims adjudicating potential contract disputes with a third

party.

Nor is there any reasonable connection between a lawsuit by

Future Services against the United States seeking recovery for

the alleged breach of an unrelated contract (involving the

provision of different vehicles at a different time for use in a

different country) and the tort claims the plaintiffs bring.

Accordingly, none of the potential minimum contacts raised by

the plaintiffs are sufficiently related to the actions

underlying this lawsuit, leaving no support for the exercise of

specific jurisdiction.

C. Plaintiffs Are Not Entitled to Jurisdictional Discovery.

In the alternative, plaintiffs request that they be permitted

to conduct jurisdictional discovery to “include at [a] minimum

obtaining all contracts between Defendant and the United States

Government.” Opp. at 12. Plaintiffs’ goal appears to be to learn

“of all the relationships and transactions taken by Future

Services in relation to the District of Columbia, the

Plaintiffs, [and] the automobiles that they were riding in on

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the date of their injury.” Id. at 12–13. The defendant opposes

this request. See Reply at 10–12.

“Whether to permit jurisdictional discovery rests in the

discretion of the district court.” In re Papst Licensing GMBH &

Co. KG Litig., 590 F. Supp. 2d 94, 101 (D.D.C. 2008); see also

FC Inv. Grp. v. IFX Markets, Ltd., 529 F.3d 1087, 1093 (D.C.

Cir. 2008). Discovery is not warranted “where a plaintiff

‘simply wants to conduct a fishing expedition in the hopes of

discovering some basis of jurisdiction.’” In re Papst, 590 F.

Supp. 2d at 101 (quoting Base Metal Trading, Ltd. v. OJSC

Novokuznetsky Aluminum Factory, 283 F.3d 208, 215 n.3 (4th Cir.

2002)). “In order to engage in jurisdictional discovery, the

plaintiff ‘must have at least a good faith belief that such

discovery will enable it to show that the court has personal

jurisdiction over the defendant.’” FC Inv. Grp., 529 F.3d at

1093–94 (quoting Caribbean Broad. Sys. v. Cable & Wireless PLC,

148 F.3d 1080, 1090 (D.C. Cir. 1998)).

For that reason, plaintiffs’ desire to learn “of all the

relationships and transactions taken by Future Services in

relation to the District of Columbia” cannot support

jurisdictional discovery without a clear articulation of the

jurisdictional basis plaintiffs intend to prove. Plaintiffs

failed to provide such a justification. Their existing

jurisdictional allegations fall far short of the standards for

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specific and general jurisdiction, and they have not described

any fact that could be obtained in discovery to alter this

conclusion. Indeed, plaintiffs seek merely to double down on

their theory that the existence of contracts with the United

States that contain a clause selecting the Court of Federal

Claims as the forum for the resolution of any contract disputes

somehow provides personal jurisdiction over this tort action.

Jurisdictional discovery would not render this argument any more

successful. See supra Part II.A–B.

D. The Case Will Be Dismissed Without Prejudice.

Future Services asks the Court to dismiss this case with

prejudice. See Mem. at 18. Plaintiffs oppose this request,

citing Intera Corp. v. Henderson, 428 F.3d 605 (6th Cir. 2005),

Opp. at 13, and defendant did not address this citation. See

Reply at 12. The Court follows the general rule described in the

decision cited by the plaintiffs that “dismissals for lack of

personal jurisdiction should be made without prejudice,” because

a lack of jurisdiction in one court does not preclude a court of

the appropriate forum from exercising jurisdiction. See Intera

Corp., 428 F.3d at 620–21.

III. Conclusion

For the foregoing reasons, the Court GRANTS Future Services’s

motion to dismiss this case. An appropriate Order accompanies

this Memorandum Opinion.

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SO ORDERED.

Signed: Emmet G. Sullivan

United States District Judge

April 21, 2015

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