Imark Mktg. Serv. Llc v. Geoplast, Civil Action No. 10–347 (CKK).

Decision Date06 December 2010
Docket NumberCivil Action No. 10–347 (CKK).
Citation753 F.Supp.2d 141
PartiesIMARK MARKETING SERVICES, LLC, Plaintiff,v.GEOPLAST, S.p.A., Defendant.
CourtU.S. District Court — District of Columbia

OPINION TEXT STARTS HERE

Bart S. Fisher, Stephen M. Seeger, Seeger, Faughnan, Mendicino, P.C., Washington, DC, for Plaintiff.John P. Coyle, Duncan & Allen, Washington, DC, Jason S. Garber, Reger Rizzo & Darnall, Towson, MD, for Defendant.

MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY, District Judge.

Plaintiff I Mark Marketing Services, LLC (“IMARK”) filed the above-captioned action against Defendant Geoplast S.p.A. (Geoplast S.p.A.) pursuant to this Court's diversity jurisdiction under 28 U.S.C. § 1332. IMARK asserts claims against Geoplast S.p.A. for breach of contract, unjust enrichment, quantum meruit, and tortious interference with an economic relationship. Presently before the Court is Geoplast S.p.A.'s [10] Motion to Dismiss Pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6) (“Def.'s Mot.”). For the reasons set forth below, the Court shall (1) DENY Geoplast S.p.A.'s motion to dismiss for lack of personal jurisdiction because IMARK has alleged sufficient facts to both confer jurisdiction under the District of Columbia's long-arm statute and comport with due process; and (2) GRANT Geoplast S.p.A.'s motion to dismiss IMARK's tortious interference claim because IMARK has failed to state a claim upon which relief can be granted.

I. BACKGROUND

Geoplast S.p.A., an Italian corporation headquartered in Padova, Italy, is a plastics manufacturer that specializes in construction-related products. Compl. ¶¶ 2, 6. IMARK is a marketing company organized as a Delaware limited liability company with its principal place of business in the District of Columbia (“District”). Id. ¶¶ 2, 5. In Italy, IMARK and Geoplast S.p.A. negotiated and, on February 5, 2009, entered into a two-year contract (“Contract”). Id. ¶¶ 7, 10; Def.'s Mot., Ex. B (Affidavit of Mirco Pegoraro (hereinafter, “Pegoraro Decl.”)), ¶¶ 4–5.1 Pursuant to the Contract, IMARK agreed to assist Geoplast S.p.A. in expanding into the U.S. market. See Compl. ¶ 7; id., Ex. A (Contract in the original Italian); id., Ex. B (Contract Translated into English).2 To accomplish Geoplast S.p.A.'s expansion, the Contract enumerates several tasks IMARK would undertake, including developing a marketing plan, establishing business relationships with U.S. entities on Geoplast S.p.A.'s behalf, and “establishing [Geoplast U.S.], subsidiary of [Geoplast S.p.A.], in Washington [D.C.], with legal business addressed at IMARK headquarters.” See id. ¶¶ 7, 16; id., Ex. B, at 2. Geoplast S.p.A., in turn, granted IMARK the exclusive right to market its goods in the United States and agreed to pay IMARK both a monthly fee of $10,000 and commissions, pursuant to a schedule set forth in the Contract, for any contracts IMARK secured on its behalf. See id. ¶¶ 8, 12–15; id., Ex. B.

As contemplated by the Contract, on February 20, 2009, Geoplast S.p.A.'s managing director, Mirco Pegoraro, directed Roberta Marcenaro, IMARK's vice president, to form a wholly-owned U.S. subsidiary of Geoplast S.p.A. (hereinafter, Geoplast U.S.) with the necessary licenses to conduct business in the District. Pl.'s Opp'n to Def.'s Mot. to Dismiss (“Pl.'s Opp'n”), Ex. 1 (Decl. of Roberta Marcenaro (hereinafter, “Marcenaro Decl.”)) ¶¶ 3, 5, 7. Geoplast U.S. was incorporated in Delaware on March 4, 2009, with Geoplast S.p.A.'s managing director, Mr. Pegoraro, as Geoplast U.S.'s president and sole director. Pl.'s Opp'n Ex. 2 (Decl. of Pietro Raugi (hereinafter, “Raugi Decl.”)) ¶¶ 15–16; see also id., Ex. B (Statement of Geoplast U.S.'s Sole Incorporator). Mr. Raugi, IMARK's president, served as Geoplast U.S.'s vice president and Ms. Marcenaro, IMARK's vice-president, served as Geoplast U.S.'s secretary and treasurer. Raugi Decl. ¶ 2; id., Ex. E (Geoplast U.S.'s Application with the D.C. Dep't of Consumer & Regulatory Affairs (hereinafter, “DCRA Application”)); Marcenaro Decl. ¶ 3. Geoplast U.S. issued a total of one hundred shares of stock, all of which were issued to Geoplast S.p.A. Raugi Decl. ¶ 18; id. Ex. C (Geoplast U.S.'s Written Consent of the Sole Director in Lieu of the Org. Meeting), at 2. On March 11, 2009, Geoplast U.S. submitted its application to the D.C. Department of Consumer and Regulatory Affairs (“DCRA”) in order to qualify to conduct business within the District. Id., Ex. E (DCRA Application). Although Geoplast U.S.'s license to do business in the District appears to have been revoked in September 2009, there is no indication that Geoplast U.S. has dissolved.3 See Def.'s Reply to Pl.'s Opp'n to the Rule 12(b) Mot. to Dismiss (“Def.'s Reply”) at 6 & 6 n. 1.

Geoplast U.S.'s sole purpose, according to Mr. Raugi, is to function as a conduit for Geoplast S.p.A.'s products to enter the U.S. market. Raugi Decl. ¶ 11. Geoplast S.p.A. paid the legal costs associated with Geoplast U.S.'s incorporation. Id. ¶¶ 12–14. In addition, Geoplast U.S. does not maintain its own bank account, as Geoplast S.p.A. pays Geoplast U.S.'s expenses and provides all of Geoplast U.S.'s assets. Id. ¶¶ 19, 25.4 Geoplast U.S.'s website, which is maintained by Geoplast S.p.A. and was once simply an English translation of Geoplast S.p.A.'s website, allows customers to download brochures and pamphlets regarding Geoplast S.p.A.'s products. Id. ¶¶ 28, 31. These promotional materials group Geoplast S.p.A. and Geoplast U.S. under the heading of “Geoplast International,” with headquarters listed as Geoplast S.p.A.'s address in Italy and with a North American location listed as Geoplast U.S.'s address in the District.5 See, e.g., Marcenaro Decl., Ex. C (Tank Elevator and Modulo System Brochures), at 8, 22. According to these materials, and the business cards Geoplast S.p.A. provided Mr. Raugi and Ms. Marcenaro as officers of Geoplast U.S., Geoplast U.S.'s principal place of business is the same as IMARK's office—1054 31st Street NW, Suite 200, in Washington, D.C. See Raugi Decl. ¶¶ 21–22; id. Ex. D (Ms. Marcenaro's Geoplast U.S. business card); id. Ex. G (Freezer Warehouse Brochure); Marcenaro Decl., Ex. C, at 8, 22.

For approximately a year, Geoplast S.p.A. and IMARK operated under the Contract without incident. Geoplast S.p.A. sent monthly payments to IMARK's bank account located at 1400 G Street, N.W. in Washington D.C. ¶ 8. In addition, between March 2009 and July 2009, IMARK received at its D.C. office 127 emails from Geoplast S.p.A. employees. Id. ¶ 34; see also id. ¶ 7 (alleging that IMARK also received “numerous phone calls” from Geoplast S.p.A.'s managing director and sales manager between 2009 and early 2010).

On February 4, 2010, for reasons unclear from the present record, Geoplast S.p.A. sent IMARK what IMARK characterizes as a “new” contract to govern the parties' relationship. Compl. ¶ 25. IMARK refused to enter into this “new” contract or otherwise modify the parties' existing Contract. Id. ¶ 26. Subsequently, Geoplast S.p.A. ceased making its monthly payments to IMARK and then, on March 2, 2010, informed IMARK that Geoplast S.p.A. had canceled the Contract. Id. ¶¶ 27–28.

IMARK avers that prior to receiving Geoplast S.p.A.'s cancellation notice, it had expended significant time and incurred substantial costs to meet its contractual obligations. Id. ¶ 18. Specifically, IMARK claims it expended resources in identifying potential buyers for Geoplast S.p.A., as well as hiring and training a representative to market Geoplast S.p.A.'s products in the United States. Id. ¶¶ 19–20. IMARK further alleges that after incurring these expenses, Geoplast S.p.A. then attempted to hire “key personnel” away from IMARK in order to circumvent Geoplast S.p.A.'s contractual obligations. Id. ¶¶ 21–22. IMARK also claims that Geoplast S.p.A. violated IMARK's right under the Contract to be Geoplast S.p.A.'s exclusive supplier in the United States by directly contacting those business “IMARK had cultivated business relationships with” in order to sell its products without IMARK as an intermediary. See id. ¶¶ 23–24.

On March 4, 2010, two days after Geoplast S.p.A. informed IMARK that it had canceled the Contract, IMARK filed the Complaint in this case. IMARK asserts four claims against Geoplast S.p.A.: (1) breach of contract (Count I); (2) unjust enrichment (Count II); (3) quantum meruit (Count III); and (4) tortious interference with an economic relationship (Count IV). Compl. ¶¶ 31–51. On May 4, 2010, Geoplast S.p.A. responded by filing its [10] Motion to Dismiss Pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6) (“Def.'s Mot.”). In its motion, Geoplast S.p.A. argues that all of IMARK's claims should be dismissed because this Court lacks personal jurisdiction over Geoplast S.p.A. and, in the alternative, IMARK's tortious interference claim (Count IV) should be dismissed for failure to state a claim. In support of its motion, Geoplast S.p.A. attached a declaration from Mr. Pegoraro, Geoplast S.p.A.'s managing director. See Def.'s Mot., Ex. B. IMARK subsequently filed its [11] Opposition to Geoplast's Motion to Dismiss (Pl.'s Opp'n), which includes declarations from Mr. Raugi, IMARK's president, Pl.'s Opp'n, Ex. 2, and Ms. Marcenaro, IMARK's vice-president, id., Ex. 1, as well as numerous exhibits. Finally, Geoplast S.p.A. filed its [12] reply (“Def.'s Reply”). The parties' briefing on the pending motion is now complete, and the matter is therefore ripe for review and resolution by this Court.

II. LEGAL STANDARD
A. Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(2)

A 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). “The plaintiff, however, cannot rest on bare allegations or conclusory statements and must allege specific facts connecting each defendant with the forum.” GTE New Media...

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