A Love of Food I, LLC v. Maoz Vegetarian USA, Inc.

• Decision Date: 28 June 2012
• Docket Number: Civil Action No. 10–cv–02352–AW.
• Citation: 870 F.Supp.2d 415
• Parties: A LOVE OF FOOD I, LLC, Plaintiff, v. MAOZ VEGETARIAN USA, INC., Defendant.
• Court: U.S. District Court — District of Maryland

870 F.Supp.2d 415

A LOVE OF FOOD I, LLC, Plaintiff,

v.MAOZ VEGETARIAN USA, INC., Defendant.

Civil Action No. 10–cv–02352–AW.

United States District Court,

D. Maryland,

Southern Division.

June 28, 2012.

Jennifer Sutherland Lubinski, Leitess Leitess Friedberg and Fedder PC, Owings Mills, MD, Steven K. Fedder, Leitess Leitess Friedberg and Fedder PC, Baltimore, MD, for Plaintiff.

Raymond Thomas McKenzie, Jr., Law Office of Raymond T. McKenzie Esq., Gaithersburg, MD, for Defendant.

MEMORANDUM OPINION

ALEXANDER WILLIAMS, JR., District Judge.

Pending before the Court are Defendant Maoz Vegetarian USA, Inc. (“Maoz”)'s Motion for Summary Judgment, Doc. No. 41, and Plaintiff A Love of Food I, LLC (“ALOF”)'s cross-Motion for Summary Judgment, Doc. No. 43. The Court has reviewed the motions and all supporting documents and held an evidentiary hearing on June 18, 2012 to consider issues of personal jurisdiction. For the reasons articulated during that hearing and below, the Court has found that it lacks personal jurisdiction over Maoz. As a result, the Court will grant Maoz's Motion for Summary Judgment on the issue of personal jurisdiction and deny the remainder of Maoz's motion as moot, deny ALOF's cross-Motion for Summary Judgment as moot, and transfer this case to the U.S. District Court for the District of Columbia where both parties have stipulated that jurisdiction is proper.

I. FACTUAL & PROCEDURAL BACKGROUND

The following facts are gathered from evidence submitted by the parties at the close of discovery as well as the testimony received during the June 18, 2012 evidentiary hearing. While both parties have moved for summary judgment, of immediate concern to the Court is its personal jurisdiction over Defendant Maoz. Viewing the pleadings in a light most favorable to ALOF, the Court denied Maoz's Motion to Dismiss for Lack of Personal Jurisdiction, see Doc. No. 11, as well as Maoz's Motion for Reconsideration, see Doc. No. 27. Nevertheless, subsequent developments in the discovery record led Maoz to contend once again in its summary judgment motion that this Court lacks personal jurisdiction over it. See Doc. No. 41 at 42–45. Maoz's motion raised genuine concerns for the Court, which held an evidentiary hearing to evaluate the factual bases for personal jurisdiction. Accordingly, the discussion below will focus on Maoz's Maryland ties and other facts pertinent to the personal jurisdiction inquiry.

This action arises out of a franchise relationship between Plaintiff ALOF and Maoz. Maoz is a Delaware corporation with its principal place of business in New York. Maoz sells franchises for the operation of quick-service vegetarian restaurants throughout the United States that trade under the name “Maoz Vegetarian.” ALOF is a limited liability company organized under the laws of the state of Delaware, whose principal place of business is listed in the parties' Franchise Agreement as Chevy Chase, Maryland. ALOF operated a Maoz Vegetarian restaurant in Washington, DC from November 18, 2009 until the restaurant closed in January 2012. ALOF's claims relate to certain allegedly fraudulent representations made by Maoz during the franchise negotiation process, as well as Maoz's failure to properly register its franchise in either Maryland or New York.

During 2006, Maoz representative Yair Marinov (“Marinov”) began discussing with ALOF co-owners Quinn Wallis (“Q. Wallis”) and David Wallis (“D. Wallis”) the possibility of ALOF operating a Maoz franchise in Washington, DC. At the evidentiary hearing, Marinov testified that Q. Wallis first contacted him about the possibility of opening a DC franchise while Q. Wallis was studying abroad in Spain. There appears to be no dispute that Q. Wallis initiated contact with Marinov and that Marinov was not aware that Q. Wallis was planning to locate in Maryland upon returning from Spain. The parties' discussions centered around the purchasing of rights to a DC-based franchise. Although Q. Wallis asked at one point whether he might be able to later purchase rights to a Maryland franchise, the response by Maoz was an unequivocal no.

It appears that upon returning from Spain, Q. Wallis resided in Chevy Chase, Maryland with his father, D. Wallis. Marinov and Q. Wallis continued corresponding by e-mail, and on September 18, 2006, D. Wallis and Q. Wallis attest that they traveled to New York City to meet with Marinov. See Doc. No. 43 Exs. 1, 3. Q. Wallis attests that the purpose of the meeting was to discuss “invest[ing] in a ... franchise to be located in Washington, DC.” Doc. No. 43 Ex. 3 ¶ 2. The parties agree that several months later, D. Wallis and Q. Wallis traveled to New York City to meet with Marinov and visit a new New York City Maoz location. Other than the one or two times they met in New York City, the parties communicated primarily by e-mail during the initial stages of the negotiations. See Doc. No. 41 Exs. 8–9, 14–21. There is no evidence that Maoz was aware during this time that Q. Wallis or D. Wallis resided in Maryland.

As the negotiations progressed, the parties met several times in Washington, DC during the summer of 2007. ALOF was formed on May 25, 2007 in expectation of finalizing the franchise agreement. Doc. No. 41 Ex. 2. Although by this point the parties had met several times in both New York City, where Maoz was headquartered, and DC, where ALOF's franchise location was to open, it appears Maoz never traveled to Maryland and was as yet unaware that the Wallis co-owners resided there.

Shortly after ALOF was formed, it hired legal counsel based in Washington, DC who negotiated the franchise agreement with Maoz from June 2007 through August 2007. Doc. No. 41 Ex. 10–12. In addition to communications between the DC attorneys and Maoz, Marinov testified that he coordinated with Q. Wallis by phone on a few occasions and may have called D. Wallis as well. Q. Wallis's cell phone has a DC area code, and D. Wallis's cell phone has a Maryland area code. Q. Wallis testified that he was unsure whether Marinov had ever called him at the Wallis residence in Maryland, and Marinov denies having called Q. Wallis at home. Thus, it appears that the only time Marinov may have called a Maryland phone number was when he called D. Wallis's cell phone, but neither party has provided any information about the substance of these calls or when or how often they were made. Moreover, the Court gathers from Plaintiff that D. Wallis, the father of Q. Wallis, was only a 5% owner of ALOF who provided financial backing but played a less active role in the partnership. As a result, the Court is left with little evidence of telephonic communications by Maoz into Maryland.

Additionally, ALOF has been unable to substantiate its initial contention that certain crucial documents like the Uniform Franchise Offering Circular (“UFOC”) and Franchise Agreement were mailed by Maoz into Maryland. Although Q. Wallis testified that Marinov mailed a copy of the UFOC to his Maryland address on or around June 6, 2007, Marinov testified that he never mailed the UFOC into Maryland. Rather, Marinov testified that it was his policy to e-mail documents like the UFOC that would need to be forwarded to attorneys, and that the only material he mailed into Maryland was a glossy marketing brochure that could not be sent by e-mail. The parties' e-mails from early June, 2007 substantiate that some “materials” were indeed mailed into Maryland, but the e-mails do not reveal the nature of the materials sent. Pl's Ex. 1. Notably, June 5, 2007 appears to be the first time Marinov was made aware that Q. Wallis had a Maryland mailing address. See id. Marinov testified that rather than mail the UFOC into Maryland, he had e-mailed it to Q. Wallis on April 17, 2007, after the parties' meeting in New York City. To support this claim, Maoz has submitted an informal Maoz Activity Log in which it appears that on “4/17/2007” Marinov noted “got the UFOC” beside Q. Wallis's name. Def's Ex. 9. Q. Wallis testified that he never received the UFOC via e-mail on that date. Weighing all this evidence together, the Court does not find that ALOF has substantiated by a preponderance of the evidence its initial contention that Marinov mailed the UFOC into Maryland. It appears to the Court just as likely that the UFOC was instead e-mailed to Q. Wallis in April, prior to Marinov's receiving any indication that Q. Wallis might be a Maryland resident.

On August 27, 2007, ALOF purchased the franchise rights to the DC-based Maoz restaurant. Although Q. Wallis testified that the final draft of the franchise agreement was sent to Q. Wallis's home in Maryland, the evidence suggests that it was instead e-mailed to ALOF's attorney in DC. Maoz produced an e-mail sent from its attorney, Mitchell Shelowitz, to ALOF's attorney on August 23, 2007, four days before the franchise agreement was finalized. The e-mail is titled “Final Documents” and states that the franchise agreement and other pertinent documents are attached. Def's Ex. 8(b). The e-mail goes on to request that ALOF's attorney arrange for Q. Wallis and D. Wallis to sign the agreement. Id. It appears Maoz's attorney was still unaware of Q. Wallis and D. Wallis's address, since he notes that “[w]e are still missing the home addresses ... of Quinn and David” and asks that they provide that information upon signing. Id. The e-mail clearly expects Q. Wallis and D. Wallis to sign the attached agreement after adding their addresses and does not discuss any separate mailing of the franchise agreement to the Wallis' residence in Maryland.

Maoz has additionally produced an e-mail sent by Marinov to Q. Wallis the next day, August 24, in which Marinov forwarded the e-mail sent from Maoz's attorney the day before. Id. Marinov notes: “[l]ooks like we are ready to go. Please fed ex everything according to Mitch's instructions to our office address ...[.]” The reasonable conclusion to be drawn from these...