Gunn v. Wild
| Decision Date | 09 December 2021 |
| Docket Number | Civil Action 2:20-CV-150 (WOB) |
| Parties | LEZLIE J. GUNN PLAINTIFF v. HANS-PETER WILD DEFENDANT |
| Court | U.S. District Court — Eastern District of Kentucky |
Plaintiff Lezlie Gunn (Gunn) brought this action for breach of contract against Defendant Hans-Peter Wild (Wild). Wild moved to dismiss Gunn's Amended Complaint (Doc. 32) for lack of personal jurisdiction under Fed. R. Civ. Proc. (FRCP) 12(b)(2) and forum non conveniens. (Doc. 33). Having reviewed the parties' pleadings, the Court now issues the following Memorandum Opinion and Order.
Wild previously moved to dismiss Gunn's original complaint (Doc. 1, Gunn Compl.) for lack of personal jurisdiction and forum non conveniens. (Doc. 12, Wild Mot. to Dismiss). The Court denied Wild's first motion without prejudice on June 15, 2021, but it ordered Gunn to file an amended complaint “alleging with specificity the acts that give rise to personal jurisdiction in this matter.” . Gunn filed an amended complaint and Wild moved again for dismissal. . That motion is now before the Court.
Gunn is a resident of Nevada. (Doc. 33, Gunn Am. Compl. at ¶ 2). Wild is now a citizen and resident of Switzerland, but was a citizen and resident of Germany prior. . In 1994, Wild established a significant business presence in Erlanger, Northern Kentucky by purchasing 100% of the stock in an existing company and renaming it Wild Flavors, Inc. (Doc. 32, Gunn Am. Compl. at ¶¶ 10-11). He then built corporate headquarters in Northern Kentucky in 1998 where he and Gunn maintained offices and attended business meetings. (Id. at ¶¶ 11-13). Wild also stayed in a condominium in Crestview Hills, allegedly staying there over 100 times, sometimes with Gunn, and which the parties refer to as the “Palmer Court residence.” (Id. at ¶¶ 6, 14).
Gunn alleges she benefited Wild and his business in several significant ways. (Id. at ¶¶ 7-10, 15). Gunn claims her counsel and advice was instrumental to the growth and success of Wild's multi-billion-dollar business and that she traveled all over the world with Wild as he “relied on Ms. Gunn to assist him with almost everything he did and insisted on her feedback on decisions he was considering.” (Id. at ¶ 9). These benefits and services purportedly formed the impetus for a Release and Settlement Agreement (“RSA”) between the parties, the contract central to this case. (Id. at ¶ 40).
According to Gunn's amended complaint, she is responsible for a series of services and favors to Wild, beginning in 1994 when she claims to have brokered and advised the acquisition and establishment of assets supporting Wild Flavors's permanent plant operations in Northern Kentucky. (Doc. 32, Gunn Am. Compl. at ¶¶ 10-12). Gunn thereafter played a critical role in a highly profitable supply agreement for Wild Flavors worth “$160 million to $200 million.” (Id. at ¶ 16). Gunn also more generally assisted Wild and his company in product development, provided “due diligence” in documents under Wild's consideration, gave general business advice, and recommended policies and safety measures for Wild Flavors employees. (Id. at ¶ 15).
Later in 2013, Gunn rescheduled an ophthalmologist appointment of Wild's, delaying a planned trip to Germany, which, by happenstance, averted his arrest by German tax authorities. (Id. at ¶ 20). After narrowly avoiding arrest, Wild stayed at the Palmer Court condo where, with Gunn present, he met immediately with Wild Flavors President and CEO, Michael Ponder, to discuss the liquidation of Wild Flavors. (Id. at ¶¶ 21-22). Thereafter, Gunn attended various meetings with potential buyers around the country and prepared Wild “at all relevant times.” (Id. at ¶¶ 23, 25-26). Much of these sale negotiations were conducted in Northern Kentucky as a “base of operations.” (Id. at ¶ 26). Finally, Gunn claims to have strongly advised Wild against granting an absolute power of attorney pursuant to the eventual sale agreement, and to personally attend the sale in Zurich, Switzerland. (Id. at ¶¶ 27-28). Gunn claims this advice “thwarted” the use of the POA in a “conspiracy” to divert billions in funds from the sale to German tax authorities. (Id. at 28).
For all of this, Gunn claims Wild repeatedly and emphatically praised and thanked her, orally promising her a “lifetime of unlimited spending for whatever you want to purchase, need or desire, any gifts you want to give, anyone you want to hire or contract with.” (Doc. 32, at ¶¶ 29, 31). Wild allegedly orally reiterated his promises several times to Gunn at the Palmer Court residence in Kentucky, (see Id. at ¶¶ 32-33), then publicly referred to these promises at the Metropolitan Club in Covington, Kentucky during a celebratory dinner with the board of directors of the company that purchased Wild Flavors. (Id. at ¶ 35).
Gunn has since argued that these statements established an enforceable set of obligations from Wild to Gunn. In 2015, a year after Wild sold Wild Flavors, she claims these promises were finally reduced to a written RSA executed by the parties in Zug, Switzerland. (Id. at ¶ 40). Wild allegedly breached this agreement by, among other things, failing to pay Gunn's agreed-upon bills and expenses, failing to pay for her medical insurance, failing to fund an education trust account for certain children, failing to pay Gunn's yearly “gift amount, ” and failing to provide various items to emergency service departments. (Doc. 1, Gunn Original Complaint at ¶¶ 2-21; Doc. 32, Gunn Am. Compl. at ¶ 1).
Two federal district courts, one in California and one in Nevada, have already held Gunn failed to prove personal jurisdiction over Wild. Gunn v. Hans-Peter Wild & Does 1-10, No. SACV 20-00820JVS, 2020 WL 5167755 (C.D. Cal. June 11, 2020); Gunn v. Wild, No:17-cv-72 JCM-GWF, 2018 U.S. Dist. LEXIS 8042, 2018 WL 473005 (D. Nev. Jan. 18, 2018). The Ninth Circuit affirmed the Nevada decision. See Gunn v. Wild, 771 Fed.Appx. 392 (9th Cir. 2019). This is the third suit Gunn brought in the United States pertaining to the RSA. However, Gunn has apparently found some success in litigation in Switzerland, having obtained a judgment in her favor premised on Wild's breach of the same RSA. (Doc. 25-1, Translated Swiss Decision at 38).
The main issue before the Court is whether, given Gunn's allegations of Wild's connections to Kentucky, the Court may exercise personal jurisdiction over Wild, a citizen and resident of Switzerland, for breach of a contract executed in Switzerland and not otherwise connected to Kentucky in terms of contract performance. Wild argues in his motion that the connection between the RSA and his Northern Kentucky activities is too attenuated to confer jurisdiction to the Court, even taking Gunn's averments as true. (See Doc. 33, Wild MTD at 3). Further, the RSA expressly contains a merger clause rendering the written agreement the only exclusive outstanding agreement between the parties. Wild emphasizes how he has never been a Kentucky resident or United States citizen, and no term of the RSA was contemplated to be performed in Kentucky. Gunn argues to the contrary in defense of her claim that the RSA necessarily arises out of Wild's significant business activities in Kentucky which led Wild to make oral promises in Kentucky, promises that were ultimately memorialized in the written RSA between Gunn and Wild. (See Doc. 32, Gunn Am. Compl. at ¶¶ 47). This, she claims, establishes sufficient contact with Kentucky to support personal jurisdiction.
For reasons to follow, the Court finds the allegations in Gunn's amended complaint, even taken as true, are insufficient to furnish personal jurisdiction over Wild regardless, of the merits of Wild's assertion of forum non conveniens.
In the face of a 12(b)(2) motion to dismiss for lack of personal jurisdiction, a plaintiff must make a prima facie showing of the Court's personal jurisdiction over the defendant. Intera Corp. v. Henderson, 428 F.3d 605 (6th Cir. 2005) (citing Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir. 1991)). At least in a case like this where the Court has foregone an evidentiary hearing, the pleadings and affidavits form the basis of a plaintiff's assertion personal jurisdiction exists, and those filings are to be viewed in a light most favorable to her. See Dean v. Motel 6 Operating L.P., 134 F.3d 1269, 1272 (6th Cir. 1998). Personal jurisdiction may be either “general” or “specific.” Intera Corp., at 615 (citing Bird v. Parsons, 289 F.3d 865, 873 (6th Cir. 2002)). Each type of jurisdiction is discussed in turn.
General jurisdiction exists where a defendant's contacts with a state are so continuous and systematic as to render him “at home” in that jurisdiction. Bird 289 F.3d 865, 873 (6th Cir. 2002) (citing Third Nat'l Bank in Nashville v. WEDGE Group, Inc., 882 F.2d 1087, 1089 (6th Cir. 1989)). Thus, personal jurisdiction may be based purely on a defendant's more consistent, general presence in the state, even where the specific acts giving rise to the plaintiff's claim are not so specifically or directly connected to the state. See Daimler AG v. Bauman, 571 U.S. 117, 167 (2014) (citing Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)). For an individual, the paradigm forum for the exercise of general jurisdiction is the individual's domicile. Ford Motor Co. v. Montana Eight Judicial District Court, 141 S.Ct. 1017, 1024 (2021); Goodyear...
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