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Dew v. S. Columbia Terrace, LLC
JOHN W. BROOMES UNITED STATES DISTRICT JUDGE
MEMORANDUM AND ORDERThis matter comes before the court on Defendant's motion to dismiss for lack of personal jurisdiction or, in the alternative, to dismiss for improper venue or transfer venue to the District of Maine. (Doc. 5.) The motion has been fully briefed and the court is prepared to rule. (Docs. 6, 8, 9.) For the reasons stated herein, Defendant's motion is DENIED.
I. Facts
The facts set forth herein are taken from Plaintiff's complaint and the affidavits of the parties' representatives. To the extent that the affidavits are conflicting, the court will resolve any factual dispute in Plaintiff's favor. Old Republic Ins. Co. v. Continental Motors, Inc., 877 F.3d 895, 903 (10th Cir. 2017). The court has also considered the exhibits - a purchase order and invoice - that are attached to Defendant's memorandum as they are referenced in the complaint and the parties do not contest their authenticity. See GFF Corp. v. Assoc. Wholesale Grocers, Inc., 130 F.3d 1381, 1384-85 (10th Cir. 1997) (finding that the court may consider exhibits that are incorporated into the complaint by reference when deciding a motion to dismiss).
Plaintiff Rhythm Engineering, LLC, is a limited liability company with its principal place of business in Johnson County, Kansas. Defendant is a corporation with its principal place of business in Maine. Defendant is not registered to conduct business in Kansas and has no bank accounts, physical offices, or employees in Kansas. (Doc. 6-1 at 2.)
Plaintiff alleges that it entered into a contract with Defendant to furnish products and materials and provide labor for traffic installation work in Portland, Maine. (Doc. 1-1 at 2.) On May 7, 2019, Defendant executed the purchase order contract in Maine. (Doc. 6-1 at 2, 8.) Prior to the execution of the contract, the parties had exchanged written communications over a period of several months regarding the scope, pricing, and timing of the purchase of Plaintiff's products which included traffic monitoring equipment, software, and materials. (Doc. 8-1 at 2.) Plaintiff alleges that it accepted Defendant's offer in Kansas and performed its obligations under the contract. (Doc. 1-1 at 2.) The products purchased by Defendant were manufactured, assembled, and packaged in Lenexa, Kansas by Plaintiff. (Doc. 8-1 at 2.)
In its reply, Defendant argues that this allegation of fact lacks a sufficient foundation and that the court should not consider it in ruling on the motion. (Doc. 9 at 1-2.) In support of its response brief, Plaintiff submitted an affidavit of Richard Cole, Plaintiff's general manager. (Doc. 8-1.) Cole's affidavit states that he has been employed by Plaintiff since January 2019 and that he is familiar with the parties' contractual relationship and the facts and circumstances surrounding the litigation due to his position. Cole's affidavit states that the parties exchanged written and oral communications for several months beginning in September 2018. (Id. at 2.) Defendant argues that Cole would not have personal knowledge of any oral communications from September 2018 through January 2019 because he was not yet employed by Plaintiff. Defendant does not suggest that Cole's statement regarding written communications is not based on personal knowledge but only attacks the inference that certain oral communications are based on personal knowledge. In Plaintiff's role as general manager, he would have access to company records which could include records of oral communications. See Univ. of Kansas v. Sinks, 565 F. Supp. 2d 1216, 1227 (D. Kan. 2008) (considering affidavit which relied on company records). However, Cole does not explain how he became aware of any oral communications prior to his employment nor does he detail the timing of all of the communications. Therefore, the court will only rely on the affidavit in support of the fact that the parties engaged in written communications prior to the execution of the contract. --------
On August 14, 2019, Plaintiff submitted an invoice to Defendant in Maine in accordance with the contract. (Doc. 6-1 at 6.) Out of the total $429,950 contract price, $397,950 was related to equipment and materials furnished by Plaintiff. (Docs. 6-1 at 6, 8-1 at 2.) The products ordered by Defendant were delivered to Maine for installation. Defendant was to install the products on site and Plaintiff sent a representative to Maine to inspect the installation of the products for which Plaintiff charged Defendant $5,000 under the contract. (Id.) The contract also included technical support and warranty assistance for a term of five years which was to be performed remotely from Kansas. Although not specified in the contract, this support is for the benefit of the City of Portland, Maine. Plaintiff has continued to perform under the agreement by providing remote support services to the City of Portland, Maine. (Doc. 8-1 at 3.) Plaintiff alleges that Defendant breached the contract by refusing to pay Plaintiff the remaining balance due, late charges, interest, and other fees in the amount of $129,626.59. (Doc. 1-1 at 3.) The payments under the contract were to be submitted to Plaintiff's office in Kansas. (Doc. 8-1 at 3.)
Plaintiff's complaint alleges claims of breach of contract and unjust enrichment. This action was originally filed in the District Court of Johnson County, Kansas. (Doc. 1-1.) Defendant removed the action to this court pursuant to 28 U.S.C. § 1441. (Doc. 1.) In the notice of removal, Defendant alleges that this court has jurisdiction over this matter as the parties are diverse and the amount in controversy exceeds $75,000. Defendant now moves for dismissal on the basis that this court lacks personal jurisdiction over it. Defendant also argues that venue is improper in this court or, alternatively, that this court should transfer venue pursuant to 28 U.S.C. § 1404(a).
II. Standard
On a Rule 12(b)(2) motion to dismiss, a plaintiff must make a prima facie showing that the court has personal jurisdiction over defendant. Old Republic Ins. Co., 877 F.3d at 903. The court must accept the allegations in the complaint as true and resolve all factual disputes in Plaintiff's favor notwithstanding contrary positions by Defendant. Id. The court may consider affidavits in deciding a motion to dismiss based on lack of personal jurisdiction. Richardson based on a statement from the organization's website. However, Dew has not explained in his complaint how he could maintain a federal discrimination claim based on his source of income. To the extent that Dew's brief allegations can be construed to allege a disparate impact claim, as explained above, plaintiffs seeking to bring such FHA claims must allege that a defendant's policy has a disparate impact on a protected class. Dew made no allegations in his complaint that the River Club's policy had a disparate impact on any group of people and cannot state a claim of FHA discrimination on his bare allegations. See Inclusive Cmtys, 576 U.S. at 543. The District Court did not abuse its discretion in denying Dew further leave to amend his complaint where he had previously been given several opportunities to clarify his allegations. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
Dew argues in his appellate brief that an investigator who was looking into housing discrimination at his former building failed to adequately investigate his claim and that the investigation was flawed. See Appellant's Br. at p. 1-6. He argues that a proper investigation could reveal the facts he needs to state a claim of discrimination. However, because Dew has not challenged the District Court's reasoning based on the facts he has alleged, these arguments do not aid his appeal.
The District Court also did not abuse its discretion in denying Dew's motion for reconsideration, which was not based on a proper ground for reconsideration, such as an intervening change in law, newly discovered evidence, or "the need to correct a clear error of law or fact or to prevent manifest injustice." See Max's Seafood Café, 176 F.3d at 677. Because all of the factual allegations in Dew's motion for reconsideration, some of which were drawn from publicly accessible websites, were available at the time he filed his amended and second amended complaints, and he cited no new federal law, the District Court properly concluded that Dew did not rely on new evidence or new law in seeking reconsideration. See Howard Hess Dental Labs. Inc. v. Dentsply Int'l, Inc., 602 F.3d 237, 252 (3d Cir. 2010) ("[N]ew evidence in [the context of a motion for reconsideration] means evidence that a party could not earlier submit to the court because that evidence was not previously available.").
We understand Dew to be alleging only federal discrimination claims. Even if we were to liberally construe Dew's allegations as seeking relief under state law, because he cannot state a federal claim, we would not consider such a claim. See 28 U.S.C. § 1367(a); Kach v. Hose, 589 F.3d 626, 650 (3d Cir. 2009). --------
Accordingly, we will affirm the judgment of the District Court
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