Black & Veatch Const. v. Abb Power Generation

• Decision Date: 25 September 2000
• Docket Number: No. CIV. A. 00-2120-KHV.,CIV. A. 00-2120-KHV.
• Parties: BLACK & VEATCH CONSTRUCTION, INC., Plaintiff, v. ABB POWER GENERATION, INC., Defendant.
• Court: U.S. District Court — District of Kansas

Page 569

123 F.Supp.2d 569

BLACK & VEATCH CONSTRUCTION, INC., Plaintiff, v. ABB POWER GENERATION, INC., Defendant.

No. CIV. A. 00-2120-KHV.

United States District Court, D. Kansas.

September 25, 2000.

COPYRIGHT MATERIAL OMITTED

J. Michael Grier, Christopher Snow, Darren M. Dick, Blackwell Sanders Peper Martin LLP, Overland Park, KS, for plaintiff.

James S. Kreamer, Kara Trouslot Stubbs, Anne W. Schiavone, Baker, Sterchi, Cowden & Rice, L.L.C., Kansas City, MO, for defendant.

MEMORANDUM & ORDER

VRATIL, District Judge.

Black & Veatch Construction, Inc. (Black & Veatch) brings this diversity suit against ABB Power Generation, Inc. (ABB) for breach of contract. This matter comes before the Court on Defendant ABB Power Generation Inc.'s Motion To Dismiss Or In The Alternative Motion To Transfer Venue (Doc. # 11) filed June 5, 2000. ABB first asks the Court to dismiss the Black & Veatch claims because the parties contractually selected Massachusetts as the forum for this litigation. Alternatively, ABB asks the Court to dismiss this action for lack of personal jurisdiction and improper venue under Fed.R.Civ.P. 12(b)(2) and (3). Finally, if jurisdiction and venue are proper in the District of Kansas, for the convenience of the parties and witnesses, ABB asks the Court to transfer the case to the District of Massachusetts under 28 U.S.C. § 1404(a). For the reasons set forth below the Court finds that personal jurisdiction is proper in the District of Kansas, and that the parties agreed to litigate this matter in Massachusetts. The Court therefore transfers the case to the United States District Court for the District of Massachusetts.

Legal Standards

The Court has discretion to consider a motion to dismiss for lack of personal jurisdiction under Rule 12(b)(2), Fed. R.Civ.P., based on the affidavits and other written material. See Behagen v. Amateur Basketball Ass'n, 744 F.2d 731, 733 (10th Cir.1984), cert. denied, 471 U.S. 1010, 105 S.Ct. 1879, 85 L.Ed.2d 171 (1985). If the Court so chooses, plaintiff must make only a prima facie showing of jurisdiction to avoid dismissal. See Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir.1995); Behagen, 744 F.2d at 733. Of course plaintiff eventually must establish jurisdiction by a preponderance of the evidence, either at a pretrial evidentiary hearing or at trial. Until such a hearing is held, a prima facie showing suffices, notwithstanding any contrary presentation by the moving party. See Kuenzle v. HTM Sport-Und Freizeitgerate AG, 102 F.3d 453, 456 (10th Cir.1996). Plaintiff does have "the duty to support jurisdictional allegations in a complaint by competent proof of the supporting facts if the jurisdictional allegations are challenged by an appropriate pleading." Pytlik v. Professional Resources, Ltd., 887 F.2d 1371, 1376 (10th Cir.1989). Conclusory allegations that defendant has minimum contacts are insufficient to establish personal jurisdiction. See id. All factual disputes, however, are resolved in plaintiff's favor. See id. The procedure to decide a motion to dismiss for improper venue is generally the same as for deciding a motion to dismiss for lack of personal jurisdiction. See Electronic Realty Assocs. v. Paramount Pictures Corp., 935 F.Supp. 1172, 1175 (D.Kan.1996) (citing M.K.C. Equip. Co., Inc. v. M.A.I.L. Code, Inc., 843 F.Supp. 679, 682 (D.Kan. 1994)).

Under 28 U.S.C. § 1404(a), the Court may transfer a case to any district or division where it might have been brought for "the convenience of the parties and witnesses" and "in the interest of justice." 28 U.S.C. § 1404(a). The decision whether to grant a motion to transfer is within the sound discretion of the district court. See Scheidt v. Klein, 956 F.2d 963, 965 (10th Cir.1992). The moving party has the burden of demonstrating that a suit should be transferred. Cook v. Atchison, Topeka & Santa Fe Ry. Co., 816 F.Supp. 667, 668 (D.Kan.1993). The Court must give great weight to plaintiff's choice of forum. KCJ Corp. v. Kinetic Concepts, Inc., 18 F.Supp.2d 1212, 1214 (D.Kan. 1998). "Unless the balance is strongly in favor of the movant the plaintiff's choice of forum should rarely be disturbed." Scheidt, 956 F.2d at 965 (further citations omitted).

Facts

Black & Veatch is a Missouri corporation with its principal place of business in Overland Park, Kansas. ABB is a Delaware corporation with its principal place of business in Virginia. ABB is registered with the Kansas Secretary of State as a foreign corporation authorized to do business in Kansas pursuant to Kan. Stat. Ann. § 17-7301. No employees, officers or directors of ABB are located in Kansas, and ABB does not own any property or bank accounts in Kansas.

On July 28, 1997, Black & Veatch and ABB entered into a Consortium Agreement to define their responsibilities and control their relationship with regard to a proposal and contract to design, supply, install and erect a turbine power plant for Berkshire Power Company, LLC. (Berkshire) in Agawam, Massachusetts. ABB agreed to design and procure equipment, some piping and the electrical system, and to configure and commission the systems for the Agawam plant. Black &amp Veatch agreed to provide engineering, procurement and management services and to install certain plant components. The consortium executed a so-called "EPC Contract" with Berkshire, a Massachusetts entity. The EPC Contract contains the following provision:

32.8 Choice of Law

The rights and remedies of the parties hereunder shall be governed by the laws of the Commonwealth of Massachusetts excluding its choice of law provisions and all actions under this contract shall be brought in the Federal District Court in Massachusetts.

Memorandum In Support Of Defendant ABB Power Generation, Inc.'s Motion To Dismiss Or In The Alternative To Transfer Venue (Doc. # 12) filed June 5, 2000, Ex. B-2 at 94 (emphasis added).

The Consortium Agreement contains the following provisions that refer to the EPC Contract:

Section 1.2 "Agreement" shall mean this document and all of its appendices. Section 1.3 "Consortium" shall mean the temporary association of the Members for the sole purpose set forth in Section 2.1 to allow each Member of the Agreement to accept that portion of the [EPC] Contract that it has sole and exclusive responsibility for and the joint performance limited to other obligations the [EPC][C]ontract may require. Except to the extent of the responsibilities and liabilities assumed by ABB and Black & Veatch as a result of signing the [EPC] Contract, under no circumstances does the execution of this Agreement by any Member intend to constitute an acceptance by that individual Member of responsibility for the entire Project or any responsibility with regard to furnishing any portion of the [EPC] Contract not covered under that individual Member's Scope of Work. * * *

1.8 "Contract" shall mean the EPC Contract with related documents executed by and between the Consortium and the Client defining the rights and obligations of the parties thereto in the supply, erection, construction and completion of the Project, as it may be amended from time to time. The [EPC] Contract is set forth and made part hereof in Appendix 5. * * *

1.19 "Scope of Work" shall mean, for each Member, the work, supplies, service, responsibilities and requirements to be undertaken or provided by such Member as set forth in the Division Of Work document included as Appendix 1 (both Members) as well as all other work, supplies, services, responsibilities, and requirements, included in the [EPC] Contract, which can be reasonably referred to such Scope of Work, as defined though Division of Work (DOW) document as an Appendix 1 to this Agreement. * * *

Id. at 1-2; 20. Article 9.8 of the Consortium Agreement provides that it is governed by the law of the Commonwealth of Massachusetts. Id., Ex. B-1 at 19.

Although work on the overall project will be completed in 2001, Berkshire has issued a Certificate of Substantial Completion to Black & Veatch. Many of the documents which relate to the project are located at the job site in Massachusetts or in Richmond, Virginia. Approximately 175 boxes of documents related to the project are stored in Black & Veatch facilities in Overland Park, Kansas. Most of the Black & Veatch employees who have knowledge of the claims in this case, and who may be called to testify, live and work in the Kansas City metropolitan area. Of the 29 key employees who worked on the project, 27 reside in the Kansas City area. No ABB employees who worked in the project reside in Kansas. Employees of subcontractors and suppliers who may be required to testify are from Canada and 24 states.

Analysis

I. Personal Jurisdiction

ABB asserts that under the Kansas long-arm statute and the Due Process Clause of the Fifth Amendment, this Court lacks personal jurisdiction over it. "Because the Kansas long-arm statute is construed liberally so as to allow jurisdiction to the full extent permitted by due process," OMI Holdings, Inc., v. Royal Insurance Company of Canada, 149 F.3d 1086, 1090 (10th Cir.1998), the Court proceeds directly to the constitutional issue. See Intercon, Inc. v. Bell Atl. Internet Solutions, Inc., 205 F.3d 1244, 1247 (10th Cir.2000) (because Oklahoma's long-arm statute permits exercise of any jurisdiction that is consistent with the U.S. constitution, personal jurisdiction inquiry collapses into single due process analysis). Due process requires "minimum contacts" between the nonresident defendant and the forum state. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). This standard may be satisfied in one of two ways. First, specific jurisdiction exists over a matter in the forum state if defendant "purposely avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws." Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d...