RLB & Assocs., Ltd. v. Aspen Med. Pty. & Aspen Med. United States, Inc.
| Decision Date | 27 January 2016 |
| Docket Number | Case No. 2:15-cv-123 |
| Court | U.S. District Court — District of Vermont |
| Parties | RLB & ASSOCIATES, LTD., Plaintiff, v. ASPEN MEDICAL PTY. and ASPEN MEDICAL USA, INC. Defendants. |
(Doc. 10)
Plaintiff RLB & Associates, Ltd. brings this action against Defendant Aspen Medical Pty. and Defendant Aspen Medical USA, Inc. (collectively, "Defendants") for breach of contract, fraud, and tortious interference with business relationships. Pending before the court is Defendants' Motion to Dismiss Complaint for Lack of Personal Jurisdiction (Doc. 10). Plaintiff opposes the motion. After supplemental briefing by both parties, the court took the motion under advisement on December 21, 2015.
Plaintiff is represented by H. Kenneth Merritt, Jr., Esq. Defendants are represented by R. Jeffrey Behm, Esq. and Paul N. Murphy, Esq.
The facts are derived from Plaintiff's complaint, as well as the affidavits and documents submitted by the parties in relation to the pending motion. Plaintiff is a Vermont corporation with its principal place of business in Montpelier, Vermont. It provides "finder services" for companies seeking clients abroad. (Doc. 28-1 at 2, ¶ 4.) Defendant Aspen Medical Pty. is an Australian corporation that "provide[s] emergency medical services and healthcare solutions worldwide." (Doc. 10-1 at 1, ¶ 3.) Its wholly- owned subsidiary, Defendant Aspen Medical USA, Inc., is a Delaware corporation with its principal place of business in Texas. Defendants have "no office, officer, employee, [] agent[,] . . . property[,] . . . assets, investment, or security interests" in Vermont. Id. at 3, ¶¶ 19-20. None of their eight potential witnesses reside in Vermont.
Plaintiff was introduced to Defendants through a Montreal-based consultant. After communication with Defendants in mid-2011, Plaintiff sent an email to Defendants to discuss their interest in securing clients outside of Australia. Plaintiff's Vermont mailing address was displayed in this email. Plaintiff's email correspondence also contained a link to its website, which identified its place of business as Montpelier, Vermont. After this initial correspondence, Plaintiff "had a phone call" with Mr. Glenn Keys, a Director employed by both Defendants. (Doc. 28-1 at 2, ¶ 9.) During this conversation, Mr. Keys identified Latin America as a region of potential business development in which Plaintiff might be of assistance.
In October 2011, Plaintiff sent a "Draft of Proposal for Latin America" (the "Draft Proposal") to Defendants, in which Plaintiff's Vermont address is set forth on the first page.1 (Doc. 28-2 at 2.) Plaintiff contends that the Draft Proposal "largely reflected the substance" of its prior phone call with Mr. Keys. (Doc. 28-1 at 2, ¶ 10.) The Draft Proposal states that (Doc. 28-2 at 2) (emphasis omitted). The Draft Proposal further explains that because Latin American clients seek more of a "partner than only a provider of goods and services[,] [t]he use of local personnel and services is essential." Id. at 2-3 (emphasis and internal quotation marks omitted). According to Plaintiff, the Draft Proposal "indicated that potential clients would be approached and vetted through the use of phone and e-mail communication prior to in-person meetings." (Doc. 28-1 at3, ¶ 14.) Thereafter, Plaintiff would engage in a "preparatory meeting" with the potential client prior to the client's formal introduction to Defendants. (Doc. 28-2 at 3.)
"[B]ased upon [its] experience in Latin America," Plaintiff "design[ed]" the Draft Proposal in an effort to reach a final agreement with Defendants. Id. at 2 (emphasis omitted). Plaintiff proposed that a "General Agreement" should include "a mandate for a specific time, [twelve] months minimum," which upon "defined success" would be extended. Id. at 4. Plaintiff noted that it expected "to focus on several carefully selected regions and countries to start." Id. at 5. It also proposed triggers and a schedule for the payment of its fees and expenses.
In late-2011, Plaintiff sent Defendants a draft "Non-Circumvention, Non-Disclosure and Fee Agreement for Latin America[,]" (Doc. 28-3), which "memorialized" the Draft Proposal. (Doc. 13-1 at 1, ¶ 7.) Defendants revised the contract term from one-year to six-months, and sent it back to Plaintiff. On or about January 11, 2012, the parties executed their final Non-Circumvention, Non-Disclosure and Fee Agreement for Latin America (the "Agreement"). Plaintiff's location is identified on the first page of the Agreement, and Plaintiff signed the Agreement in Vermont. Defendant Aspen Medical Pty. signed the Agreement in Australia, and Defendant Aspen Medical USA, Inc. signed it in Texas. The Agreement contains no choice of law provision or forum selection clause.
Pursuant to the Agreement, Plaintiff agreed to introduce "potential clients, or consultants and professionals in the health sector" in the "Territory"2 to Defendants "with the goal of [Defendants] establishing a long-term service provider relationship with such Introduced Parties[.]" (Doc. 28-3 at 2, ¶¶ 1-2.) The "Introduced Parties" are identified in Attachment A to the Agreement and consist of nine individuals or entities located in Brazil, Argentina, Chile, Peru, Mexico, and Venezuela. Pursuant to the Agreement, "[t]he role of [Plaintiff] [was] restricted to that of 'Finder,' and [Plaintiff] [was] not [to] provide business advice, act as an agent of [Defendants] in any manner, or provide any other services to [Defendants][.]" Id. at 3, ¶ 3.
The Agreement states that Plaintiff will receive a $2,000 retainer fee each month. In the event Plaintiff facilitated a business relationship between Defendants and an "Introduced Party[,]" the Agreement required payment to Plaintiff of a "Success Fee[,]" which would be determined by a percentage of annual fees and revenue received by Defendants from the "Introduced Party." Id. at 3, ¶ 6. Defendants agreed to compensate Plaintiff for all "pre-approved expenses[,]" and "[i]f and when [Plaintiff] [was] requested by potential clients to attend preparatory meetings, [Plaintiff] [would] review the opportunity with [Defendants], and if such a meeting [received] approv[al], [Plaintiff would] be remunerated at a rate of $500 per day for time on-site and expenses[.]" Id. at 4, ¶¶ 9, 11. The Agreement provides for a six-month term, which "[t]hereafter, [] shall be renewed for additional [three] month periods unless terminated by either [p]arty with [thirty] days written notice." Id. at 5, ¶ 14.
From January 2012 until Defendants terminated the Agreement in October 2014, Defendants paid Plaintiff the monthly retainer fee required by the Agreement via wire transfer to Plaintiff's Vermont bank account. Mr. Ronald L. Boucher, Plaintiff's President and its sole member of the Board of Directors, avers that "[t]he vast majority of the work [Plaintiff] performed under the [Agreement] took place out of [Plaintiff's] principal business address in Montpelier, Vermont." (Doc. 28-1 at 3, ¶ 24.) As part of its work, Plaintiff corresponded with Defendants "in the form of hundreds of e-mails, landline calls, and Skype calls." Id. at 3, ¶ 20. Plaintiff's email signature includes its Vermont contact information.
Mr. Keys, a Director for Defendants, avers that Defendants "never intended or agreed that [Plaintiff] would perform the [A]greement outside Latin America." (Doc. 10-1 at 3, ¶ 17.) He further avers that Defendants "understood and believed that [Plaintiff's] services under the [A]greement related solely to Latin America, and that [it] performed the contract there." Id. at 3, ¶ 18.
While the Agreement was in effect, Defendants met with Plaintiff on several occasions. These meetings took place in Latin America and in the state of Virginia. In late-March and early-April, Defendants met a prospective customer, whom Plaintiff hadintroduced to Defendants, in Latin America. That meeting did not result in a successful business relationship.
In its Complaint, Plaintiff alleges that it "introduced numerous suitable businesses to Defendants," but that Defendants never developed successful business relationships with any of them. (Doc. 1 at 3, ¶ 19.) Plaintiff claims that Defendants acted fraudulently and in breach of contract because when they signed the Agreement, "Defendants were aware . . . that no business in Latin America would be considered or approved by [one of Defendants'] principal[s]." Id. at 3, ¶ 22. Plaintiff thus never had the opportunity to earn any "Success Fees." Plaintiff further alleges that "Defendants' continued refusals to provide necessary information and meet with representatives of such potential clients interfered with and damaged Plaintiff's business and business reputation." Id. at 4, ¶ 31.
Plaintiff's Complaint alleges claims of breach of contract, fraud, and tortious interference with business relationships. In their Answer, Defendants assert the lack of personal jurisdiction as an affirmative defense. After filing their Answer, Defendants moved to dismiss the case for lack of personal jurisdiction. In support of their motion, Defendants submitted Mr. Keys's declaration. Plaintiff's opposition relied upon Mr. Boucher's declaration. After oral argument, the parties were permitted to file supplemental materials. Defendants filed a declaration from Yolanda Kuruc, Defendants' General Counsel; and copies of the Draft Proposal and the Agreement. Plaintiff filed another declaration from Mr. Boucher, as well as copies of the Draft Proposal and the Agreement.
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