cater - reply in support of mot. to dismiss

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN ACTION NETWORK, INC., ))

Plaintiff, ))

v. )) Case No. 1:12-cv-01972 (RC)

CATER AMERICA, LLC )and )ROBERT WAYNE JENNINGS, )

)Defendants. )

DEFENDANTS’ REPLY BRIEF IN SUPPORT OF THEIR MOTION TO DISMISS OR TRANSFER

Defendants Cater America, LLC and Robert Wayne Jennings, by counsel, respectfully

submit this Reply Brief in Support of their Motion to Dismiss and Alternative Motion to Transfer

(the “Motion”) and request this Court to grant their Motion for the reasons stated below and for

those reasons stated in their opening Memorandum in Support of their Motion.

INTRODUCTION

Plaintiff’s Opposition confirms that this Court lacks personal jurisdiction over

Defendants, and that venue is improper in the District of Columbia. Unable to refute

Defendants’ arguments, Plaintiff instead seeks to elude them by proposing new factual

allegations that are neither contained in the Complaint nor relevant to its claims. Many of these

new allegations are simply incorrect or mischaracterize the events as they occurred. Further,

Plaintiff’s attempted sidestep also fails because the new allegations are not relevant to the

personal jurisdiction and venue analysis at hand. Plaintiff alleges only specific personal

jurisdiction, conceding Defendants’ argument that general personal jurisdiction does not exist

here. Yet Plaintiff alleges purported contacts with the District of Columbia that have nothing to

Case 1:12-cv-01972-RC Document 10 Filed 03/25/13 of 24

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do with its actual claims even though a specific personal jurisdiction analysis considers only

contacts related to the business giving rise to those claims. Moreover, Plaintiff proffers these

misplaced allegations in a declaration that, certainly for jurisdictional and venue purposes, is

incorrect and largely based upon belief rather than personal knowledge. Indeed, the new

allegations offer no legitimate purpose and serve only to obfuscate the relevant considerations.

Plaintiff fares no better on the law. Its submission fails to offer any legal arguments

sufficient to counter Defendants’ Motion to Dismiss as to personal jurisdiction and venue.

Plaintiff does not provide this Court with any binding precedent to refute Defendants’ legal

authorities in favor of dismissal or transfer based on improper venue. Instead, its analysis relies

wholly on one secondary source despite the abundance of case law from this Court and the

District of Columbia Circuit Court addressing improper venue. Further, the Opposition confuses

the issue by injecting irrelevant factors related to transfer under a forum non conveniens analysis.

Here, however, Defendants have never argued for a discretionary transfer based on convenience.

Rather, Defendants argue for a required dismissal or transfer because venue is improper in the

District of Columbia. Whether a separate forum is convenient for this litigation has no bearing

on this analysis. As to personal jurisdiction, the Opposition is rife with over-generous readings

of the case law and misstatements of Defendants’ Memorandum in Support. Plaintiff also relies

heavily upon an incorrect understanding of the facts – most notably, its erroneous belief that

Defendants initiated contact with Plaintiff.

Last, Plaintiff concedes to dismissal of the unjust enrichment claim as to the concert

refund. This Court should dismiss that claim with prejudice. Further, this Court should dismiss

all claims as to Jennings because he had no personal involvement in this matter whatsoever.


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Although Plaintiff asks this Court to pierce the fiduciary shield and disregard the corporate

entity, Plaintiff provides no basis whatsoever that warrants such an extraordinary remedy.

SUPPLEMENTAL STATEMENT OF FACTS

Defendants provide this Supplemental Statement of Facts to respond to the new and

largely irrelevant allegations that Plaintiff raises, for the first time, in its Opposition. Contrary to

Mr. Meachum’s Declaration, neither Cater nor Jennings directed, instructed, suggested, or even

knew that Julie Conway approached Plaintiff, through Mr. Meachum until after the fact. See

Conway Decl., ¶¶ 6-8.1 Rather, after hearing that Plaintiff wanted to sponsor programs at the

2012 Republican National Convention, and knowing that Mr. Meachum worked for Plaintiff, see

Conway Decl., ¶ 6, Ms. Conway independently spoke with Mr. Meachum about such

sponsorships and mentioned Cater as a potential partner for Plaintiff. See Conway Decl., ¶¶ 7-8.

Mr. Meachum expressed great interest in this possibility and later emailed Ms. Conway to say,

“This has the potential to be great. EV knows where my head is on this. Let’s make it so the rest

of the week looks lame in comparison.” See Email from Meachum to Conway (Dec. 14, 2011

11:48 am EST); see also Conway Decl., ¶ 8. Ms. Conway responded, copying Cater on her

email to apprise him of the update. See Email from Conway to Meachum (Dec. 14, 2011 5:44

pm EST).

Further, during a December 20, 2011 meeting, Mr. Meachum stated that he had already

spoken with Jason Osborne, the then-Director of External Affairs for the Convention’s

Committee on Arrangements in Tampa, Florida, and that Mr. Osborne suggested that Plaintiff

work with Cater given the scope and nature of Plaintiff’s convention plans. See Conway Decl., ¶

14. In an email that Mr. Meachum sent to Cater and others on December 21, 2011, he wrote:

1 The Julie Conway Declaration is attached as Exhibit A.


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I think AAN brings to you enough of a financial commitment to anchor the event to give you a lot of confidence locking down talent and begin getting bids for building out the site. I also think this gives Jason [Osborne] a lot of relief in terms of additional space near the arena… We need to lock in the nights for the wrap party and what the marquis concert night will be with Jason [Osborne]. Elizabeth[Verrill], looking over our levels, I think that we don't need to re-do the whole package as opposed to add a weeklong sponsorship for exclusive pavilion space. Great work so far Rob and Julie, we owe a big thanks to Jason for connecting us.

Email from Meachum to Cater (Dec. 21, 2011, 8:18 am EST) (emphasis added).2

Although the Opposition and Mr. Meachum’s Declaration mischaracterize Plaintiff as

having an unwitting and passive role throughout the relevant time period, see, e.g., Pl.’s Opp’n, 4

(citing to Meachum Decl. ¶¶ 4, 6, 9, 13, 22), it was actually Plaintiff, through Mr. Meachum,

who proposed a starring role for Plaintiff and who quickly escalated and expanded the scope of

the project. Indeed, at the outset, he advised Cater that, “AAN brings to you enough of a

financial commitment to anchor the event to give you a lot of confidence locking down talent

and begin getting bids for building out the site.” Email from Meachum to Cater (Dec. 21, 2011,

8:18 am EST) (emphasis added). Even at that early stage, Meachum already demanded

exclusive rights to the event space, “I think that we don’t need to re-do the whole package as

opposed to add a weeklong sponsorship for exclusive pavilion space.” Email from Meachum to

Cater (Dec. 21, 2011, 8:18 am EST). To cement exclusive rights, Plaintiff promised Cater

$100,000.00 in exchange for a right-of-first-refusal, even stating that, “I am sure it will end up

being more than that.” Email from Meachum to Cater (May 21, 2012, 2:35 pm EST). See also

Email from Meachum to Cater (May 21, 2012, 2:59 pm EST) (“We discussed and settled the

ROFR weeks ago”). Mr. Meachum continually provided Cater with assurances of financial

backing from Plaintiff and Plaintiff’s donors. See, e.g., Email from Meachum to Cater (Feb. 1,

2012, 12:12 pm EST) (“I would be willing to make a deposit on the other lot so that we have one

2 All emails are attached, in chronological order, as Exhibit B.


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for certain.”); see also Email from Meachum to Cater (Jan. 17, 2012 6:22 pm EST) (in

discussing $250,000.00 payment for an entertainment act, “I’ll have to go back to my board, but

will get the money.”); Email from Meachum to Cater (April 16, 2012, 3:34 pm EST) (“Guys,

sorry I’m out traveling trying to pay for all the fun.”); Email from Meachum to Cater (May 21,

2012, 2:59 pm EST) (“I’m determined to press forward w[ith] my commitments.”).

Plaintiff told Cater, “I have promised to keep you whole through the process even offered

a completion bonus, which is still on the table if you want it . . . .”3 Email from Meachum to

Cater (Feb. 15, 2012, 3:39 pm EST). Plaintiff’s promise to advance payments was necessary

given its directions to Cater to offer large sums of money to secure A-list entertainment. Indeed,

Plaintiff directed Cater to make offers to entertainers on its behalf and understood that such

offers would be binding unless rejected.4 See Email from Cater to Meachum (Jan. 24, 2012, 6:25

pm EST) and Email from Cater to Meachum (May 16, 2012, 12:41 pm EST). In discussing an

offer to Dolly Parton, Mr. Meachum simply writes, “offer more money if we need to.” Email

from Meachum to Cater (Feb. 17, 2012, 12:03 pm EST). Indeed, Plaintiff was so eager to secure

Dolly Parton for the Convention that it offered her the AAN jet for her personal use. See Email

from Meachum to Cater (Feb. 7, 2012, 3:50 pm EST) (“Our Chairman owns a jet. We will find a

jet.”); see also Email from Meachum to Cater (Feb. 10, 2012, 12:12 pm EST) (“I have a firm

commitment on a jet from our Chmn.”). When Dolly Parton rejected the offer, Plaintiff, through

3 Meachum also offered Cater a bonus if he could secure entertainment for the Hispanic Leadership Network at a low cost. See Email from Meachum to Cater (May 18, 2012, 9:24 am EST) (“Start the talks. If it’s close to zero, I’d like to build something for you into the contract.”). 4 Notably, Plaintiff understood, early on, that once an offer to an entertainer had been made, it could not be withdrawn. See Email from Cater to Meachum (Jan. 24, 2012, 5:34 pm EST). Thus, contrary to Plaintiff’s allegation that it did not agree on the Journey concert, Plaintiff did not direct Cater to withhold the offer to Journey despite having full opportunity to do so.


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Mr. Meachum, then directed Cater to offer Lady Gaga $1,000,000.00 to perform at an event

honoring women. See Emails from Meachum to Cater (April 21, 2012, 1:23 pm EST) and (April

21, 2012, 1:46 pm EST). Plaintiff also directed Cater to offer $250,000.00 to Pitbull to perform

for the Hispanic Leadership Network. See Email from Meachum to Cater (Jan. 17, 2012, 6:22

pm EST). Although Plaintiff suggests that Cater disregarded its direction to secure Pitbull,

allegedly causing it to make “expensive last minute arrangements” for the August 2012

Convention, Meachum Decl., ¶ 15, Plaintiff knew in January 2012 that Pitbull declined the offer

to perform. See Email from Cater to Meachum (Jan. 18, 2012, 8:12 pm EST) (“Pitbull is a no.

They passed.”). Plaintiff and Cater then moved on to other possible entertainers for the Hispanic

Leadership Network.

Plaintiff was also heavily involved in selecting and procuring event space, initially

directing Cater to obtain a lot through the Tampa Port Authority. See Email from Meachum to

Cater (Jan. 29, 2012, 10:29 pm EST). Later, when it became apparent that Plaintiff was

competing with another group for the Tampa Port Authority space, Plaintiff wrote Cater, “Feel

free [to] fight him off with our checkbook as well.” Email from Meachum to Cater (Jan 27,

2012, 10:39 am EST). Subsequently, Plaintiff emailed Richard Wainio, then-director and chief

of the Tampa Port Authority, attempting to secure the lot. Mr. Meachum wrote:

Robert Jennings is acting on our behalf and we are looking to host the highest possible caliber of events on your site. Our events will include a mix of top caliber talent, policy discussions hosted by Doug Holtz-Eakin a former CBO Director, an Hispanic themed day including a lunch with Jeb Bush Jr’s SunPac honoring Governor Bush, one of our Board members, and the only Convention evenings honoring the National Republican Congressional Committee and the Florida Congressional delegation. Please know these events are already confirmed.

***[We] would also be willing to pay fair market value for the space.


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Email from Meachum to Wainio (Feb. 1, 2012 6:28 pm EST) (emphasis added). Plaintiff then

forwarded the email to Cater, further confirming to Cater that Plaintiff was committed to

financially backing the Convention events. See Email from Meachum to Cater (Feb. 1, 2012,

6:29 pm EST). Plaintiff also offered to provide a letter to the Tampa Port Authority from

Senator Norm Coleman, Plaintiff’s Chairman of the Board. See Email from Meachum to Cater

(Feb. 1, 2012, 12:12 am EST); see also Email from Meachum to Cater (Feb. 1, 2012, 6:29 pm

EST) (“Letter from Coleman will be coming in the morning.”). Plaintiff later wrote Cater, “I’m

ready to wire for a deposit when it’s needed.” Email from Meachum to Cater (Jan. 27, 2012,

11:12 am EST). Indeed, Plaintiff paid $100,000.00 to Cater for the tent deposit. See Email from

Meachum to Cater (April 18, 2012, 3:00 pm EST) (“Deposit is good with me.”).

Plaintiff’s statement that “Ultimately, [Cater] arranged to erect a tent in a parking lot”

severely mischaracterizes Plaintiff’s involvement and knowledge. Meachum Decl., ¶ 13.

Plaintiff knew all along that the Convention events would occur in an industrial tent. In fact, the

space at the Tampa Port Authority, which was Plaintiff’s first location choice, was simply

surface space on which to erect the tent. See Emails from Meachum to Cater (Jan. 29, 2012,

10:29 pm EST) (“We have determined the ideal location for [AAN] to hose [sic] these important

events is the lot adjacent to Chennelside.”) and (Feb. 15, 2012, 3:39 pm EST) (“I’m inclined to

walk away from the Port lot.”). Cater also informed Plaintiff about possible contract provisions

with the caterer for the Tampa Port Authority lot. Among those points, “Groups or individuals

renting the tent for events will be responsible for their own catering costs . . . .” Email from

Cater to Meachum (Feb. 15, 2012, 12:17 pm EST). Thus, Plaintiff always knew that the

Convention events would occur in an industrial tent, and its inclination to “walk away from the

Port lot” forced Cater to find alternate location sites.


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Given Plaintiff’s substantial involvement and direction related to the Convention events,

Plaintiff required Cater to participate in regular telephone calls to provide status updates and

discuss next steps. These calls were set up by Zach Weaver, who worked for Plaintiff, and who

circulated a 1-866 telephone bridge number for the conference participants to call rather than

requiring Cater and others to call Plaintiff at its Washington, D.C. phone numbers. See, e.g.,

Emails from Weaver to Cater (Jan. 30, 2012, 10:53 am EST); (Feb. 6, 2012, 1:47 pm EST); (Feb.

13, 2012, 11:14 am EST); (Feb. 24, 2012, 4:33 pm EST); (Mar. 26, 2012, 2:27 pm EST); (April

2, 2012, 12:43 pm EST); (April 9, 2012, 9:14 am EST); (April 13, 2012, 4:40 pm EST)

ARGUMENT

For the reasons stated in their Memorandum in Support and for the reasons stated below,

Defendants respectfully request this Court to grant their Motion to Dismiss or Transfer for lack

of personal jurisdiction and improper venue. Or, alternatively, this Court should dismiss for

failure to state a claim. Nothing in Plaintiff’s Opposition provides any reason to the contrary.

I. Under This Court’s Prior Decisions, Venue Is Improper Here Because A Substantial Part Of The Events Or Omissions Giving Rise To Liability Did Not Occur In TheDistrict Of Columbia.

In a misplaced attempt to counter Defendants’ improper venue arguments, Plaintiff

begins its response with a sentence referencing the 1990 revision to the venue statute, 28 U.S.C.

1392, which allowed for venue in any district where a “substantial part of the events or

omissions giving rise to liability occurred.” Pl.’s Opp’n, 10 (ECF No. 8). This point, however,

does nothing to rebut Defendants’ arguments because the cases cited in the Memorandum in

Support, which establish that venue is improper here, all post-date the 1990 revision. Plaintiff

then claims that “most courts are quite lenient in finding that a substantial part . . . occurs in a

district,” but Plaintiff does not cite to even a single District of Columbia case that supports its


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contention. Pl.’s Opp’n, 10 (internal citation omitted). In fact, a comprehensive search of the

case law did not reveal any District of Columbia Circuit or District Court case that suggests the

proposition applies to either Court. Rather, although this Court has recognized that the 1990

revision of the venue statute is more lenient than the previous version, it has not read the revision

leniently, as Plaintiff contends it does. Instead, this Court has not hesitated to find venue

improper notwithstanding the 1990 revision. See Corbett v. Jennifer, No. 11-1751, 2012 U.S.

Dist. LEXIS 122770, at *9 (D.D.C. Aug. 27, 2012) (“It is also clear that the plaintiff cannot

establish venue . . . under the more lenient standard”); see also White v. Ocean Duchess, Inc.,

No. 06-1423 (RCL), 2007 U.S. Dist. LEXIS 44040, at *8 (D.D.C. June 19, 2007) (“venue is not

proper in the District of Columbia under the more lenient standard”).5

Indeed, the amount of leniency requested by Plaintiff directly conflicts with this Court’s

prior decisions. Under facts very similar to those here,6 this Court found venue to be improper.

See Abramoff v. Shake Consulting, LLC, 288 F. Supp. 2d 1, 5 (D.D.C 2003). Like here, in

Abramoff, the plaintiff sued on a breach of contract, the material terms of which were agreed

upon by the parties in Washington, D.C. See id. at 2-3. The plaintiff signed the contract in the

District of Columbia and the defendant signed it in Florida. See id. at 2. The contract

contemplated that the defendants would file an agreed-upon bankruptcy plan in Florida. See id.

at 2-3. After the defendants failed to perform in Florida, the plaintiff sued in the District of

Columbia, arguing that venue was proper here. See id. at 3.

The Abramoff court disagreed with the plaintiff and transferred the case to the Southern

District of Florida, finding that the substantial part of the events or omissions giving rise to the

5 All unpublished cases are attached as Exhibit C. 6 Even under the allegations found in Plaintiff’s Opposition and supporting declaration, venue is still improper in the District of Columbia.


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claims occurred there and not in the District of Columbia. See id. at 6. Rejecting the plaintiff’s

supporting declaration stating that “the agreement was negotiated and executed” in the District,

this Court wrote, “the ‘mere’ but-for relationship between the signing of a contract and its breach

does not transform the contract signing into a substantial part of the events giving rise to the

claim.” Id. at 5 (citing Fin. Mgmt. Servs., Inc. v. Coburn Supply Co., Inc., No. 02-C-8928, 2003

U.S. Dist. LEXIS 1631, at *2 (N.D. Ill. Feb. 3, 2003). Likewise, this Court should reject

Plaintiff’s identical argument that it should consider “where the contract was negotiated or

executed” in deciding whether venue is improper here. Pl.’s Opp’n, 10. Moreover, Plaintiff’s

argument is inconsistent with the purposes of the venue statute. Section 1391 is designed to

protect defendants; therefore, the relevant activities of the defendant, rather than the plaintiff, are

significant in determining where a substantial part of the underlying events occurred under §

1391(b)(2). See Jenkins Brick Co. v. Bremer, 321 F.3d 1366, 1371-72 (11th Cir. 2003) (citation

omitted); see also 17 MOORE’S FED. PRAC. § 110.04[1] (stating that “generally, the court must

focus on activities of the defendant, not the plaintiff”). Here, Defendant Cater executed the

contract in Florida. Defendant Jennings did not execute the contract in his personal capacity at

all.

The Abramoff court then found, “the finalized agreement was a prerequisite to the

defendants’ alleged breach, but the act of finalizing the agreement was not itself wrongful and

did not directly give rise to the plaintiff’s claims.” Abramoff, 288 F. Supp. 2d at 5 (citing

Woodke v. Dahm, 70 F.3d 983, 985 (8th Cir. 1995)) (emphasis added). Thus, even taking

Plaintiff’s allegations as true, the negotiations here are even further attenuated from the alleged

breach because they were a prerequisite to the finalized Contract. Plaintiff also does not allege

that the negotiations themselves were wrongful and does not state a claim based on them.


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Accordingly, they are not a substantial part of the events or omissions giving rise to Plaintiff’s

claims.7

The same holds true for any communications that occurred after the Parties finalized the

Contract. In narrow circumstances not present here, communications can constitute a substantial

part of the events or omissions giving rise to Plaintiff’s claim. See McQueen v. WoodStream

Corp., 244 F.R.D. 26, 31 (D.D.C 2007). This exists, however, only where the claim arises from

the communications themselves such as in a fraud claim. See id. For example, in McQueen, this

Court found communications relevant to the venue analysis because the fraud claim arose

directly from the communications:

The communications between the parties transmitted to and from the District of Columbia were critical to the defendant’s alleged fraudulent undertaking. The plaintiff claims that the defendant “falsely represented to him the material fact that it was assessing his technology for possible licensing and/or future development” with his company, while having “no intention of pursuing a license or other joint venture.” The plaintiff also claims that the defendant’s “purpose of this false representation was to obtain the samples of Mr. McQueen’s technology with the intent to convert them[.]

244 F.R.D. at 31 (internal citation omitted). Here, on the other hand, the communications

themselves have nothing to do with Plaintiff’s claims, which arose solely out of Cater’s alleged

breach that occurred in Florida. Accordingly, Plaintiff’s argument that the communications

should be considered a substantial part of the events or omissions giving rise to its claims is

simply wrong.

7 Plaintiff claims that Defendants do not challenge venue as to the loan claim, “relying instead on their denial that any loan was made.” Pl.’s Opp’n, 11. Plaintiff is only half correct. Defendants deny the existence of a loan, because any funds forwarded or advanced by Plaintiff to Cater was done pursuant to the contract. Thus, the “loan” claim is actually part of the breach of contract claim for which Defendants challenge venue. Even if there was a loan, which there was not, this Court should dismiss or transfer the loan claim for all the reasons stated inDefendants’ Memorandum in Support and this Reply. See Pl.’s Opp’n, 11 (admitting that the same operative facts apply to the purported loan claim).


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Finally, any argument by Plaintiff that the breach occurred in the District of Columbia

because Cater allegedly failed to refund money to AAN, located in Washington, D.C., is likewise

wrong. Such an argument amounts to nothing more than a backdoor way of getting around “the

fact that the plaintiff may feel damages in the District of Columbia does not create venue under

section 1391(a)(2).” Abramoff, 288 F. Supp. 2d at 5 (citing Fin. Mgmt. Servs., 2003 U.S. Dist.

LEXIS 1631, at *2 (noting that basing venue on location of economic harm would nullify venue

statute)). In an analogous context, this Court has held that where a claim is based on money

owed from employment, the substantial events or omissions giving rise to the claim occur from

where the defendant computed and made the payment. See Shay v. Sight & Sound Sys., Inc., 668

F. Supp. 2d 80, 85 (D.D.C. 2009) (finding the District of Columbia to be an improper venue

because the outstanding payments would have been computed and processed in Virginia). This

outcome is consistent with the precept that an improper venue analysis should focus on the acts

of the defendant rather than the plaintiff given that the purpose of the venue statute is to protect

defendants. See 17 MOORE’S FED. PRAC. § 110.04[1]. This Court should grant Defendants’

Motion to Dismiss.8-9

II. Defendants Do Not Have Sufficient Contacts With The District Of Columbia Related To Plaintiff’s Claims To Establish Specific Personal Jurisdiction.

Because the Opposition only contends that specific personal jurisdiction exists, see Pl.’s

Opp’n, 5-9, Plaintiff waives any argument that this Court has general personal jurisdiction over

either Cater or Jennings. See Pouth Phrasavang v. Deutsche Bank, 656 F. Supp. 2d 196, 201 8 This Court may transfer this case to any other district “in which [the case] could have been brought.” 28 U.S.C. § 1406(a). Plaintiff concedes that Florida is a permissible venue. See Pl.’s Opp’n, 11 (“Doubtless it is”). 9 Plaintiff confuses the venue analysis by raising factors related to a forum non conveniens transfer under 28 U.S.C. § 1404. Defendants do not seek a transfer under § 1404. They seek only to dismiss or transfer under Federal Rule of Civil Procedure 12(b)(3) and 28 U.S.C. § 1406 because the District of Columbia is an improper venue for this action.


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(D.D.C. 2009) (“arguments not addressed in an opposition brief may be treated as conceded”)

(citation omitted); see also Amore v. Accor N. Am., Inc., 529 F. Supp. 2d. 85, 90 (D.D.C. 2008)

(“[w]hen a plaintiff files a response to a motion to dismiss but fails to address certain arguments

made by the defendant, the court may treat those arguments as conceded”).

A. The Facts do not Support a Finding of Specific Personal Jurisdiction.10

1. Mr. Meachum’s “understanding” is incorrect as Defendants did not initiate contact with Plaintiff.

Plaintiff’s position relies heavily on his unsupported and incorrect contention that

Defendants directed Ms. Conway to initiate contact with Plaintiff. See Meachum Decl., ¶ 2.

Throughout the Opposition, Plaintiff aggressively contends that Defendants “targeted”

Washington, D.C., Pl.’s Opp’n, 2, 4, and “voluntarily and deliberately” sought out Plaintiff

through Ms. Conway. Pl.’s Opp’n, 2, 4. And it cites a secondary source to claim that “courts

give great weight to the fact that a defendant initiates contact.” Pl.’s Opp’n. 7 (internal citation

omitted). Plaintiff’s belief, however, comes from Mr. Meachum’s Declaration, which

acknowledges that it is based only on his “understanding” and not on any actual knowledge.

Meachum Decl., ¶ 2. Ms. Conway’s Declaration, however, completely refutes Mr. Meachum’s

“understanding,” and unequivocally declares that neither Cater nor Jennings directed, instructed,

suggested, or even knew that she approached Plaintiff at the time she did. See Conway Decl., ¶

2. Further, Ms. Conway declares:

10 Plaintiff claims that Defendants do not challenge personal jurisdiction as to the loan claim, relying instead on a “denial that a loan occurred.” Pl.’s Opp’n, 9. Plaintiff is only half correct. Defendants deny the existence of a loan, because any funds forwarded or advanced by Plaintiff to Cater was done pursuant to the Contract. Thus, the “loan” claim is actually part of the breach of contract claim for which Defendants challenge specific personal jurisdiction. Even if there was a loan, which there was not, this Court should dismiss for all the reasons stated in Defendants’ Memorandum in Support and this Reply. See Pl.’s Opp’n, 9 (admitting that the same operative facts apply to the purported loan claim).


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She is the President of Shamrock, LLC, a fundraising entity. See Conway Decl., ¶ 2;

At no time did she act as an agent to Cater or Jennings. See Conway Decl., ¶ 2;

Neither Ms. Conway nor Shamrock, LLC entered into any agreement with Cater or Jennings. See Conway Decl., ¶ 2;

Ms. Conway, through her nineteen years of working as a fundraiser, knew both Mr. Meachum and Jennings separately. See Conway Decl., ¶ 2;

Ms. Conway heard from a third-party that Plaintiff was interested in sponsoring programs at the 2012 Republican National Convention in Tampa, Florida (the “Convention”). See Conway Decl., ¶ 2;

Ms. Conway knew that Cater was organizing programs at the Convention. See Conway Decl., ¶ 2;

Acting independently and solely on behalf of Shamrock, LLC, Ms. Conway approached Mr. Meachum about Plaintiff’s interest in the Convention. See Conway Decl., ¶ 2;

Plaintiff agreed to speak with Cater to discuss programs during the Convention. See Conway Decl., ¶ 2;

Ms. Conway later informed Cater that Plaintiff expressed interest in being involved in the events that Cater was planning for the Convention. See Conway Decl., ¶ 2.

Accordingly, because Defendant did not initiate contact with Plaintiff, this Court should

find that it does not have specific personal jurisdiction over Defendants.

2. Even assuming the truth of Plaintiff’s other allegations, specific personal jurisdiction over Defendants does not exist.

Plaintiff offers additional, purported factual allegations which turn out to be only

speculation, unsupported conclusions, or simply irrelevant to the jurisdictional analysis at hand.

For example, Plaintiff claims that “there are good reasons to believe” that Cater had other

contacts in the District of Columbia. Pl.’s Opp’n, 4. Not only is this pure speculation, it is also

irrelevant because specific personal jurisdiction can only be based on those contacts related to


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the business that gives rise to the lawsuit and which occurred in the forum. See Thompson Hine

LLP v. Smoking Everywhere, Inc., 840 F. Supp. 2d 138, 142 (D.D.C. 2012) (citing Dooley v.

United Techs. Corp., 786 F. Supp. 65, 70 (D.D.C. 1992)). Thus, even if Cater had contacts with

unrelated, unidentified third-parties for separate business unrelated to Plaintiff’s claims, those

contacts are irrelevant as to whether this Court has specific personal jurisdiction in this particular

case.

Further, Plaintiff claims that specific personal jurisdiction exists over Cater and Jennings

because Cater met with Plaintiff in the District of Columbia and because Cater engaged in

negotiations with Plaintiff over the course of nine months. See Pl.’s Opp’n, 4-5, 7. These facts,

even if true, which they are not, are insufficient to establish specific personal jurisdiction over

Defendants because they do not amount to minimum substantial contacts with the forum such

that the Court’s exercise of personal jurisdiction would not offend “traditional notions of fair

play and substantial justice.” Thompson Hine, 840 F. Supp. 2d at 142 (quoting Int’l Shoe Co. v.

Washington, 326 U.S. 310, 316 (1945)). In Thompson Hine, this Court found that it lacked

specific personal jurisdiction over a company despite the fact that: (1) it retained Washington,

D.C. lawyers for two engagements, see 840 F. Supp. 2d at 143-44; (2) two company executives

traveled to the District of Columbia on a total of three occasions, see id. at 145; (3) the

executives exchanged numerous emails and had weekly phone calls with its lawyers in

Washington, D.C., see id.; and (4) one engagement lasted over a year and the other for less than

a year. See id. at 147.


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Here, Cater’s contacts with the District of Columbia are even less than those that

occurred in Thompson Hine. For example, Cater met with Plaintiff on just one occasion.11 See

Defs.’ Mem., Cater Decl., ¶ 7; (ECF No. 6); Meachum Decl., ¶ 5. This Court previously held

that a single meeting in the District of Columbia to negotiate a contract is ‘insignificant in the

scheme of the parties’ dealings” because the contract was executed and performed outside the

District of Columbia.12 See Freiman v. Lazur, 925 F. Supp. 14, 25 (D.D.C. 1996) (citation

omitted) (also noting that the contract at issue was executed and performed outside of the District

of Columbia). Second, contrary to Plaintiff’s allegation, the communications between the Parties

lasted only eight months and not nine. Indeed, the Parties first met on December 20, 2011 and

the Convention occurred during the week of August 27, 2012. In ruling that specific personal

jurisdiction did not exist, this Court found that a defendant’s “relatively short” relationship, of

less than one year, with a District of Columbia plaintiff was “significant” in its decision. See

Thompson Hine, 840 F. Supp. 2d at 147. Third, the majority of phone calls with Plaintiff was

required and initiated by Plaintiff, who, through Zach Weaver, set-up and circulated 1-866 dial-

in numbers for the participants rather than requiring participants to call Plaintiff’s phone lines in

Washington, D.C. Thus, Cater did not reach into the District of Columbia on any of the

conference calls in which it participated.

11 While in the District of Columbia on an unrelated matter, Cater agreed to meet with Elizabeth Verrill, a contractor for Plaintiff. For specific personal jurisdiction purposes, this contact is not substantial because it was fortuitous rather than a deliberate attempt by Cater to reach into the forum for specific personal jurisdiction purposes. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, n.18 (1985) (“a defendant will not be haled into a jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts”)12 Cater executed the Contract in Florida. See Cater Decl., ¶ 12. Although Plaintiff executed the Contract in Washington, D.C., “a plaintiff may not rely only on his own activity within the forum to establish the existence of the defendant’s minimum contacts.” NAWA USA, Inc. v. Hans-Georg Bottler, 533 F. Supp. 2d 52, 57 (D.D.C. 2008).


17

Plaintiff’s contention that specific personal jurisdiction exists because Cater retained a

Washington, D.C. lawyer is incorrect. This fact is insufficient, even in combination with the

other allegations, to find specific personal jurisdiction over Defendants. In Thompson Hine, this

Court granted the defendants’ motion to dismiss for lack of personal jurisdiction despite the fact

that the Court found that defendants “knowingly reach[ed] into the District” to retain a law firm

to represent them on two separate engagements, both of which were related to the plaintiff’s

claims for non-payment of fees.13 See Thompson Hine, 840 F. Supp. 2d at 144. Notably, the

Thompson Hine defendant “knowingly reach[ed] into the District” to initiate contact with the law

firm who later became the plaintiff in that litigation. And notwithstanding that fact, this Court

still found that personal jurisdiction did not exist as to that defendant. Even more so than in

Thompson Hine, the facts here require a finding that personal jurisdiction does not exist – Cater

did not “knowingly reach into the District” to initiate contact with Plaintiff, and the Plaintiff is

not the lawyer that Cater retained.

Further, the Thompson Hine court found that it did not have personal jurisdiction over the

defendants notwithstanding the fact that the defendants had weekly telephone conversations with

the plaintiff, located in Washington, D.C., regarding the engagement occurring in the District of

Columbia, and exchanged emails with the plaintiff regarding both engagements. See id. at 145.

This Court found that even though the defendants knew that the plaintiff would perform most if

not all of the related work in the District of Columbia, see id., the engagement did not constitute

a “substantial connection” with the District for personal jurisdiction purposes because inter alia

the defendants retained the plaintiff in connection with an Oregon, and not a District of

13 The first engagement concerned litigation filed in federal court in the District of Columbia. The second engagement concerned litigation pending in Oregon with “the worknecessary to carry out this engagement [occurring] in the District of Columbia.” Thompson Hine, 840 F. Supp. 2d at 144.


18

Columbia, matter. Id. at 147. As in Thompson Hine, here, Cater retained legal representation in

the District in connection with an issue outside of this forum, specifically, in Florida. See Ex. A;

see also infra at p. 10. Like it did in Thompson Hine, this Court should find that it lacks specific

personal jurisdiction over Defendants.

B. The Case law Establishes that Specific Personal Jurisdiction does not Exist over Defendants.

The two cases cited by Plaintiff are inapposite, and do not support the Opposition except

under Plaintiff’s generous and selective reading of them. Plaintiff first cites to Thompson Hine

and claims that specific personal jurisdiction exists where the defendant “knowingly seeks out

and contracts with” a District of Columbia business and causes harm in the District due to its

failure to pay. Pl.’s Opp’n, 7. A straightforward reading of that excerpt from the case, however,

reveals a far more limited proposition. In full, it states:

The courts have been particularly attentive to the final factor, generally finding that it did not offend due process to bring a party who hired, but then failed to pay, a local lawyer into the local courts in a suit for non-payment.

Thompson Hine, 840 F. Supp. 2d at 143. That proposition, therefore, is limited to specific

personal jurisdiction in cases where the defendant hired a local attorney and then the local

attorney sued the defendant for non-payment of fees. Indeed, Thompson Hine cites to Fisher v.

Bander, 519 A.2d 162 (D.C. 1986), which finds, “where an out-of-state client employs a District

of Columbia attorney to perform services in the District of Columbia, it can hardly be said that

litigation of a fee dispute with that same attorney in the same forum poses any undue burden

upon the client.” Id. at 165 (reversing trial court’s dismissal for lack of personal jurisdiction).

Because the facts here do not fit that scenario, the Thompson Hine proposition cited by Plaintiff

does not apply to this case.


19

Plaintiff’s selective cite to Thompson Hine is also misplaced for two other reasons. First,

even if the proposition did apply here, which it does not, neither Cater nor Jennings “knowingly

[sought] out” Plaintiff. Pl.’s Opp’n, 7. Contrary to Mr. Meachum’s “understanding,” Ms.

Conway independently spoke with Plaintiff regarding the Convention, and was not directed to do

so by either Cater or Jennings. See Conway Decl., ¶ 7. Second, Plaintiff concludes, without any

support, that it experienced the harm in the District of Columbia. Squarely addressing this issue,

the District of Columbia Circuit Court acknowledged that “District of Columbia law does not

establish where economic injury occurs,” but that “case law of other circuits is instructive.”

Helmer v. Doletskaya, 393 F.3d 201, 208 (D.C. 2004). The Circuit Court favorably quoted the

Second Circuit as holding:

An injury . . . does not occur within the state simply because the plaintiff is a resident. “The situs of the injury is the location of the original event which caused the injury, not the location where the resultant damages are subsequently felt by the plaintiff.”

Id. (quoting Mareno v. Rowe, 910 F.2d 1043, 1046 (2d Cir. 1990)). The Circuit Court also

quoted the Tenth Circuit as holding, “[t]hat [the plaintiff] may be economically impacted in

Colorado, simply because he lives there, is insufficient to establish personal jurisdiction . . . .”

Helmer, 393 F.3d at 209 (quoting Wenz v. Memery Crystal, 55 F.3d 1503, 1508 (10th Cir.

1995)). Although the Circuit Court did not ultimately decide the issue of where economic harm

occurs, the Helmer dicta and favorable citations to the Second and Tenth Circuit suggest that

Plaintiff’s alleged economic harm occurred in Florida and not the District of Columbia.

Next, in a misplaced attempt to distinguish Defendants’ authorities, Plaintiff cites to

Fasolyak v. Cradle Soc’y, No. 06-01126 (TFH), 2007 U.S. Dist. LEXIS 52041 (D.D.C. July, 19,

2007), which Defendants raised in their Memorandum in Support. Plaintiff mistakes the purpose

of the case, Pl.’s Opp’n, 8, which Defendants raised solely for the point that the choice-of-law


20

provision in the Contract designating Wyoming law demonstrates Defendants “did not purposely

avail itself of the privilege of conducting activities in the District of Columbia such that it could

anticipate being haled into court here.”14 Defs.’ Mem., 12 (quoting Fasolyak, 2007 U.S. Dist.

LEXIS 52041, at *7). Further, Plaintiff expansively construes a single parenthetical from a

single case cite in Fasolyak to be “collected authority showing that a contracting plaintiff’s

residence in the forum strongly favors personal jurisdiction . . . .” Pl.’s Opp’n, 8 (emphasis

added). Meanwhile, however, the parenthetical actually states, in relevant part, “a plaintiff’s

residence ‘may well play an important role in determining the propriety of entertaining a suit

against the defendant in the forum . . . .’” Fasolyak, 2007 U.S. Dist. LEXIS 52041, at *24

(citation omitted) (emphasis added). The Opposition neither provides this Court with any case

law in support of a finding for specific personal jurisdiction, nor does it rebut Defendants’

authorities establishing the lack of specific personal jurisdiction.15, 16 This Court should grant

Defendants’ Motion and dismiss this action for lack of personal jurisdiction over Defendants.

14 Indeed, the Supreme Court has found that a choice-of-law provision in a contract is indicative on whether a defendant “‘purposefully invoked the benefits and protections of a State’s laws’ for jurisdictional purposes.” Burger King Corp., 471 U.S. at 481-82 (internal quotations omitted). 15 The Opposition includes a short discussion about the place of contracting, but a non-resident’s mere act of entering into a contract with a resident of the forum state is not enough to confer jurisdiction over the non-resident. See NAWA USA, 533 F. Supp. 2d at 56. And anyallegation that the Parties entered into the Contract in the District of Columbia is not only incorrect, it is insufficient to establish minimum contacts. See Burger King, 471 U.S. at 478. Further, in its discussion, Plaintiff misstates Defendants as claiming it is “unclear” where the Contract was entered into. Pl.’s Opp’n, 8. Defendants, however, actually state that it is unclear where Plaintiff alleges the Contract was entered into. Defs.’ Mem., 9. 16 Plaintiff seems to argue that the intended place of performance is Washington, D.C., because any repayment of money, in the event that the performance did not occur, was supposed to be sent to Plaintiff who is located in the District of Columbia. This, however, is obviously not the intended performance as it is not the purpose why Plaintiff entered into the Contract.


21

III. The Choice Of Law Provision In The Contract Provides That Defendants’ LiabilityUnder The Contract Should Be Determined Under Wyoming Law.

The binding choice-of-law provision in the Contract identifies Wyoming as the governing

law of the Contract. See Defs.’ Mem, Ex. A, 2. The District of Columbia Court of Appeals “has

adopted the general rule that parties to a contract may specify the law they wish to govern, as

part of their freedom to contract, as long as there is some reasonable relationship with the state

specified.” Ekstrom v. Value Health, Inc., 68 F.3d 1391, 1394, (D.C. Cir. 1995) (citation and

internal quotations omitted). Such a reasonable relationship exists where one of the parties to the

contract is based in the specified state. See Whiting v. AARP, 637 F.3d 355, 361 (D.C. Cir.

2011). Here, as acknowledged by Plaintiff, Cater’s principal place of business is Wyoming. See

Compl., ¶ 2. Thus, the Contract’s choice-of-law provision is valid and governs Defendants’

liability in this case.

A. Because Jennings is not the Alter Ego of Cater, he must be Dismissed from this Litigation.

It is undisputed that Jennings is not a party to the Contract nor the recipient of the

purported loan. See Defs.’ Mem., Jennings Aff., ¶¶ 6, 11. Under Wyoming law, Jennings is not

the alter ego of Cater. See WYO. STAT. 17-29-304; see also Defs.’ Mem., 18-19. Even under

District of Columbia law, Jennings is not the alter ego of Cater. In the District of Columbia,

piercing the corporate veil represents an extraordinary remedy justified only by an affirmative

showing of unity of interest and abuse of the corporate form. See Schattner v. Girard, Inc., 668

F.2d 1366, 1370 (D.C. Cir. 1981) (“Veil-piercing is an extraordinary procedure that is not to be

used lightly”); see also Vuitch v. Furr, 482 A.2d 811, 815 (D.C. 1984). The “extreme

circumstances that call for disregard of the corporate form” are simply not present here.

Schattner, 668 F.2d at 1370. Plaintiff has provided no evidence of any substance indicating a


22

“substantial disregard of the formalities of the corporate form,” “extensive commingling of

personal and corporate funds,” or the fraudulent use of the corporate form to perpetrate a wrong.

Vuitch, 482 A.2d at 816. On the contrary, all funds related to the business dealings between

Plaintiff and Cater were deposited in a Cater account with an escrow company and for which the

bookkeeping is performed by Cater’s accounting firm. See Defs.’ Mem., Cater Aff., ¶ 17. And

Cater’s funds were never comingled with Jennings’s personal funds. See Defs.’ Mem., Jennings

Aff., ¶ 12. Further, the Complaint contains no allegation that Cater’s corporate form was

fraudulently used to perpetrate a wrong.17 Thus, Jennings is no more the alter ego of Cater than

Mr. Meachum is of Plaintiff.

Moreover, Plaintiff is a sophisticated party that dealt with Cater through highly

sophisticated counsel with full knowledge of Cater’s ownership and organization. Although

Plaintiff could have demanded that Jennings sign the Contracts in his personal capacity or

personally guarantee the purported loan, it did not. Accordingly, the facts of this case do not

warrant the extraordinary step of disregarding the corporate form. This Court should dismiss

Jennings from this litigation with prejudice.18

B. Because Jennings is not the Alter Ego of Cater, Plaintiff must Establish Jennings’s Personal, Substantial Minimum Contacts with the District of Columbia to Establish Specific Personal Jurisdiction.

Under Wyoming law, unless it is found that an individual is the alter ego of a company, a

plaintiff must demonstrate the court’s personal jurisdiction over the individual established

through the individual’s personal contacts with the forum independent of any acts and contacts

carried out in the individual’s capacity as an employee of the company. See PanAmerican 17 Indeed, Cater only cancelled the Lynyrd Skynyrd show after Governor Rick Scott of Florida declared a state of emergency due to Hurricane Isaac. 18 Because Plaintiff does not oppose it, this Court should also dismiss Plaintiff’s unjust enrichment claim as to the concert. See Pl.’s Opp’n, 14.


23

Mineral Servs., Inc. v. KLS Enviro Res., Inc., 916 P.2d 986, 990-91 (Wyo. 1996); see also

D'Onofrio v. SFX Sports Grp., Inc., 534 F. Supp. 2d 86, 90-91 (D.D.C. 2008)). Plaintiff fails to

do so. Indeed, under Wyoming law, Jennings is not the alter ego of Cater, see WYO. STAT. 17-

29-304, yet Plaintiff fails to provide any factual allegations regarding Jennings’s individual

contacts with the District of Columbia apart from those taken on behalf of Cater. This Court

should grant Defendants’ Motion and dismiss Jennings for lack of personal jurisdiction.

CONCLUSION

For the reasons set forth above and in the Memorandum in Support,, this Court should

dismiss or transfer Plaintiff’s Complaint in its entirety because this Court lacks personal

jurisdiction over Cater and Jennings, and because venue is improper in this Court. In the

alternative, this Court should dismiss, with prejudice, each of the claims against Jennings.

Date: March 25, 2013 CATER AMERICA, LLC

ROBERT WAYNE JENNINGS

By Counsel

/s/ Phillip C. ChangPhillip C. Chang (DC Bar No. 998320)MCGUIREWOODS LLP2001 K Street, NWSuite 400Washington, D.C. 20006Tel: (202) 857-1725Fax: (202) [email protected] for Cater America, LLC and Robert Wayne Jennings


CERTIFICATE OF SERVICE

I hereby certify that on March 25, 2013, I caused the foregoing document to be electronically filed with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to:

Thomas W. KirbyWILEY REIN LLP1776 K Street, NWWashington, D.C. 20006Attorney for American Action Network, Inc.

/s/ Phillip C. ChangPhillip C. Chang (DC Bar No. 998320)MCGUIREWOODS LLP2001 K Street, NWSuite 400Washington, D.C. 20006Tel: (202) 857-1725Fax: (202) [email protected] for Cater America, LLC and Robert Wayne Jennings


cater - reply in support of mot. to dismiss

Documents

hispanic leadership network

omissions giving rise

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courts prior decisions

tampa port authority

exclusive pavilion space

specific personal jurisdiction

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