Plesha v. Ferguson ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ADRIAN PLESHA,
Plaintiff,
v. Civil Action No. 09-1737 (CKK)
JAMES FERGUSON, et al.,
Defendants.
MEMORANDUM OPINION
(January 20, 2011)
Plaintiff Adrian Plesha (“Plesha”), a lobbyist, filed this action seeking compensation for
services rendered to Defendants James Ferguson, J.G. Ferguson & Associates, LLC, and Jim G.
Ferguson, Inc. Plesha’s sole remaining claim is for breach of written contract.1 Presently
pending before the Court is Defendant Jim G. Ferguson, Inc.’s [26] Motion to Dismiss for Lack
of Personal Jurisdiction. The Court set a discovery schedule on August 30, 2010. However, on
October 19, 2010, the Court granted the parties’ consent motion to stay discovery pending the
resolution of the motion to dismiss. For the reasons explained below, the Court shall deny
without prejudice Defendant Jim G. Ferguson, Inc.’s motion to dismiss for lack of personal
jurisdiction.
1
On July 27, 2010, the Court dismissed Plesha’s other three claims for relief. See Plesha
v. Ferguson, 725 F. Supp. 2d 106 (D.D.C. 2010).
I. BACKGROUND
Plaintiff Adrian Plesha is a lobbyist whose principal place of business is in Washington,
D.C. See Aff. of Adrian Plesha in Supp. of Opp’n to Mot. to Dismiss (“Plesha Aff.”) ¶ 2.
Defendant Jim G. Ferguson, Inc. (“Ferguson Inc.”) is an Illinois corporation that is wholly owned
by its president, James G. Ferguson III (“Ferguson III”). See Aff. in Supp. of Jim G. Ferguson
Inc.’s Mot. to Dismiss (“Ferguson Aff.”) ¶¶ 2-3; Plesha Aff. ¶ 5. Ferguson III’s son, Defendant
James Ferguson (“Ferguson IV”), owns and operates Defendant J.G. Ferguson & Associates,
LLC (“Ferguson LLC”). Ferguson Aff. ¶ 6; Plesha Aff. ¶ 4.
On February 28, 2007, Plesha signed a contract with Ferguson LLC2 to provide
professional services relating to the FY 2007 and FY 2008 Department of Defense
Appropriations bills. See Compl., Ex. A (“Agreement for Professional Services”). Specifically,
Plesha was engaged:
a) to continue providing services regarding the Sphericall technology program within
the Army Reserve appropriated within the FY 2007 Defense Appropriations Bill.
b) to assist with initiating a research, development, testing and evaluation program
for development of the Jim G. Ferguson, Inc. cargo airship program in the FY 2008
Defense Appropriations Bill.
Compl., Ex. A ¶ 1. Ferguson Inc. was not a party to the written contract. However, Plesha
claims that Ferguson LLC was acting as the agent of Ferguson Inc. See Compl. ¶ 40; Plesha Aff.
¶ 6.
Under the contract, Ferguson LLC agreed to pay Plesha $240,000 in fees plus
reimbursement of expenses for the first year of services beginning March 1, 2007, with an
2
The contract identifies the contracting party as “James Ferguson - Manager, J.G.
Ferguson and Associates, LLC.” See Compl., Ex. A.
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automatic renewal on a month-to-month basis for a second year ending on February 28, 2009.
See Compl., Ex. A ¶¶ 2-5; Compl. ¶¶ 10, 12. Plesha alleges that he performed the services under
the contract, securing a $1.6 million appropriation and a $2.4 million appropriation. Compl.
¶ 15. Plesha alleges that Ferguson LLC ratified the contract in writing and continued to request
Plesha’s services and incur related expenses at various times during the contractual period. Id.
¶¶ 12-13. Plesha alleges that beginning on approximately April 1, 2007, Ferguson LLC failed to
make timely payments under the contract and that the total amount of compensation owed under
the contract has not been paid in full. Id. ¶ 16. Plesha contends that this failure to pay
constituted a material breach of the contract. Id. ¶ 18. Plesha seeks $262,500 in damages, pre-
and post-judgment interest, attorney’s fees, court costs, and any additional relief.
II. LEGAL STANDARD
Defendant Jim G. Ferguson, Inc. has filed a motion to dismiss for lack of personal
jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). The plaintiff bears the burden
of establishing a factual basis for asserting personal jurisdiction over a defendant. See Crane v.
N.Y. Zoological Soc’y, 894 F.2d 454, 456 (D.C. Cir. 1990). “[T]he general rule is that a plaintiff
must make a prima facie showing of the pertinent jurisdictional facts.” First Chi. Int’l v. United
Exchange Co., 836 F.2d 1375, 1378 (D.C. Cir. 1988). “To make such a showing, the plaintiff is
not required to adduce evidence that meets the standards of admissibility reserved for summary
judgment and trial; rather, she may rest her arguments on the pleadings, ‘bolstered by such
affidavits and other written materials as [she] can otherwise obtain.’” Urban Inst. v. FINCON
Servs., 681 F. Supp. 2d 41, 44 (D.D.C. 2010) (quoting Mwani v. bin Laden, 417 F.3d 1, 7 (D.C.
Cir. 2005)) (alteration in original). However, the plaintiff “cannot rest on bare allegations or
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conclusory statements and must allege specific facts connecting each defendant with the forum.”
GTE New Media Servs., Inc. v. Ameritech Corp., 21 F. Supp. 2d 27, 36 (D.D.C. 1998); see also
Second Amendment Found. v. U.S. Conference of Mayors, 274 F.3d 521, 524 (D.C. Cir. 2001)
(same). The Court need not treat all of a plaintiff’s allegations as true; rather, the Court “may
receive and weigh affidavits and any other relevant matter to assist it in determining the
jurisdictional facts.” Exponential Biotherapies, Inc. v. Houthoff Buruma N.V., 638 F. Supp. 2d 1,
6 (D.D.C. 2009) (citation omitted). However, any factual discrepancies with regard to the
existence of personal jurisdiction must be resolved in favor of the plaintiff. Helmer v.
Doletskaya, 393 F.3d 201, 209 (D.C. Cir. 2004); Crane, 894 F.2d at 456.
III. DISCUSSION
Ferguson Inc. moves to dismiss the claim against it for lack of personal jurisdiction,
arguing that it has no contacts with the District of Columbia. The parties agree that jurisdiction,
if it exists, must be based on D.C. Code § 13-423(a)(1), which enables D.C. courts to “exercise
personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief
arising from the person’s . . . transacting any business in the District of Columbia.” D.C. Code
§ 13-423(a)(1). D.C. courts have held that jurisdiction exists under this section when a party
contracts with a professional to perform services in the District of Columbia. See Digital
Broadcast Corp. v. Rosenman & Colin, LLP, 847 A.2d 384, 390-91 (D.C. 2004); Fisher v.
Bander, 519 A.2d 162, 163-65 (D.C. 1986). Therefore, the parties’ dispute revolves around
whether Ferguson Inc. can be considered to have transacted business through Ferguson LLC’s
contract with Plesha.
Plesha contends that Ferguson Inc. is liable for the contract because Ferguson LLC was
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acting as Ferguson Inc.’s agent. Whether or not an agency relationship was disclosed to Plesha,
Ferguson Inc. will be liable for the contract if Ferguson LLC was authorized to enter into the
agreement on Ferguson Inc.’s behalf. See Restatement (Second) of Agency § 149 (“A disclosed
or partially disclosed principal is subject to liability upon an authorized contract in writing . . .
although it purports to be the contract of the agent, unless the principal is excluded as a party by
the terms of the instrument or by the agreement of the parties.”); Cooper v. Epstein, 308 A.2d
781, 783 (D.C. 1973) (“It is well settled that, absent some special exception, an undisclosed
principal may sue and be sued on a contract made by his agent.”).3 Because the long-arm statute
explicitly authorizes jurisdiction based on the actions of an agent, the Court may exercise
jurisdiction over Ferguson Inc. if Plesha can establish that Ferguson LLC was acting as its agent.
Plesha alleges in his complaint that Ferguson LLC was the agent, servant, and employee
of Ferguson Inc. at all times relevant to this action. See Compl. ¶ 40. In his affidavit opposing
Ferguson Inc.’s motion to dismiss, Plesha reaffirms his belief that Ferguson LLC was acting as
Ferguson Inc.’s agent. See Plesha Aff. ¶ 6. In support of these bare allegations, Plesha avers that
he was hired to secure funding for the development of military airship technology, which both
Ferguson III and Ferguson IV told him was owned by Ferguson Inc. Id. ¶¶ 3, 7. Plesha has also
produced copies of forms signed by Ferguson III (and sent to Plesha) specifically requesting
appropriations from Congress. See id. ¶¶ 8-9 & Ex. B. In addition, Plesha avers that he spoke
with Ferguson III over the phone on numerous occasions and received directions from Ferguson
III regarding what he thought needed to be done to secure funding for the airship technology. Id.
3
Although the contract contains a non-assignment clause, the existence of such a clause
merely creates a factual question about whether the parties intended to exclude the principal from
liability. Cooper, 308 A.2d at 783.
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¶ 13. Plesha has produced emails evidencing communications between himself, Ferguson III,
and Ferguson IV regarding the contract. Id. ¶ 14 & Ex. D. Ferguson III generally disputes these
assertions, averring in his own affidavit that neither Ferguson IV nor Ferguson LLC are agents,
servants, or employees of Ferguson Inc. See Ferguson Aff. ¶¶ 5-6.
Whether an agency relationship exists is a question of fact for which the person asserting
it carries the burden of proof. Railan v. Katyal, 766 A.2d 998, 1010 (D.C. 2001). There is some
degree of uncertainty within this district over exactly how much evidence a plaintiff must
produce to meet his burden of establishing personal jurisdiction. See Heller v. Nicholas
Applegate Capital Mgmt., LLC, 498 F. Supp. 2d 100, 107-08 (D.D.C. 2007) (discussing different
standards applied); In re Baan Co. Sec. Litig., 245 F. Supp. 2d 117, 123-25 (analyzing cases).
The Court need not directly address that issue, however, because Plesha has not yet had an
opportunity to take discovery to establish the existence of an agency relationship, and he has
requested such an opportunity. The Court cannot dismiss a plaintiff’s claims against a defendant
for lack of personal jurisdiction without affording him an opportunity to develop facts supporting
jurisdiction through appropriate discovery. See Crane, 814 F.2d at 760 & n.2; Diamond Chem.
Co. v. Atofina Chems., Inc., 268 F. Supp. 2d 1, 15 (D.D.C. 2003) (“This Circuit’s standard for
permitting jurisdictional discovery is quite liberal.”) Accordingly, the Court shall deny Ferguson
Inc.’s motion without prejudice and allow it to reassert its defense after discovery has been
completed.
IV. CONCLUSION
For the foregoing reasons, the Court shall DENY WITHOUT PREJUDICE Defendant
Jim G. Ferguson, Inc.’s [26] Motion to Dismiss for Lack of Personal Jurisdiction. Ferguson Inc.
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may reassert its jurisdictional objections after Plesha has had an opportunity to obtain discovery
relevant to this issue. An appropriate Order accompanies this Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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