Samson Tug & Barge Co. v. Koziol
| Decision Date | 23 April 2012 |
| Docket Number | Case No. 3:11–cv–00247–SLG. |
| Parties | SAMSON TUG AND BARGE COMPANY, INC., an Alaska Corporation, Plaintiff, v. Timothy J. KOZIOL and Brett M. Clark, Defendants. |
| Court | U.S. District Court — District of Alaska |
OPINION TEXT STARTS HERE
William G. Royce, Law Office of William G. Royce, George T. Freeman, Anchorage, AK, for Plaintiff.
Jahna M. Lindemuth, Dorsey & Whitney, LLC, Anchorage, AK, Todd G. Friedland, Stephens Friedland LLP, Newport Beach, CA, for Defendants.
ORDER DENYING DEFENDANT CLARK'S MOTION TO DISMISS
Before the court at Docket 8 is defendant Brett Clark's Motion to Dismiss. At Docket 14, plaintiff Samson Tug and Barge (“Samson”) opposes. At Docket 18, Mr. Clark replies. At Docket 28, Samson surreplies. Oral argument on the motion was held on March 8, 2012.
The uncontroverted facts are as follows: Samson is an Alaska corporation transporting freight and other materials within Alaska and to Seattle by tug and barge.1 General Environmental Management, Inc. is a Nevada corporation (“GEM Nevada”). In 2008 and 2009, GEM Delaware was a Delaware corporation and the primary operating subsidiary of GEM Nevada.2 At all relevant times, defendant Timothy Koziol was the Chief Executive Officer (CEO) and Mr. Clark the Chief Financial Officer (CFO) of GEM Nevada. Both were and are residents of California 3 who have been to Alaska “only once or twice, and never in relation to the subject matter of this lawsuit.” 4
In the fall of 2008, GEM 5 hired Samson to transport contaminated material from Kodiak, Alaska to Seattle, Washington.6 After transporting the material in late 2008, Samson requested payment from GEM. In early 2009, Samson received some payments on the invoices, but these payments stopped in April 2009.7 By October 2009, Samson was owed $559,678.43, including interest on the unpaid balance due.8
In 2009, Samson's CFO Roslyn Dailey communicated with Mr. Clark about the outstanding balance. At least two of Ms. Dailey's communications were sent on Samson letterhead. That letterhead lists Samson's corporate headquarters address in Sitka, Alaska and includes the slogan “Alaskans Serving Alaskans.” 9 On June 30, 2009, Ms. Dailey and Mr. Clark communicated via e-mail to schedule a phone call.10 In this correspondence, which included a discussion of the time difference between Pacific Standard Time and Alaska Standard Time, Mr. Clark explicitly acknowledged that Ms. Dailey was in Sitka, Alaska.11
In September 2009, Ms. Dailey indicated that Samson intended to pursue a court action in Washington state court against GEM to recover the amount owed and sent GEM a draft complaint.12 The caption of the draft complaint identifies Samson as “an Alaskan Corporation.” Additionally, the body of that draft complaint describes Samson as “a duly licensed Alaska State Corporation” 13 and specifies that the action arises out of the contract to transport materials from Kodiak to Seattle.14
On or about November 6, 2009, GEM Nevada and Samson executed a Settlement Agreement and Release (“Settlement Agreement”), in which GEM Nevada agreed not to dispute that it owed Samson $559,678.43 through November 1, 2009 and agreed to a payment plan to pay off the entire amount due by October 2010.15 Also in the Settlement Agreement, Samson expressly released GEM Delaware from all liability for the amount due.16 The Settlement Agreement contained language acknowledging Samson's Alaskan connections.17 The Settlement Agreement also provided that “any action to interpret or enforce the terms of this Agreement shall be brought in the Superior Court of King County, Washington.” 18
Just before Samson executed the Settlement Agreement, it was provided with sworn declarations from Mr. Clark and Mr. Koziol as inducements to execute that document.19 Mr. Clark's declaration was signed on November 4, 2009 in California under penalty of perjury under California law and begins with the statement:
1. I am over the age of 18 years and am presently employed with GENERAL ENVIRONMENTAL MANAGEMENT, INC. A Nevada Corporation (“GEM”). I am the current Chief Financial Officer of GEM, and am familiar with the assets and obligations of GEM and its affiliates.20
Mr. Koziol's declaration was signed on November 5, 2009 in California, also under penalty of perjury under California law, and begins with a similar statement:
1. I am over the age of 18 years and am presently employed with GENERAL ENVIRONMENTAL MANAGEMENT, INC. A Nevada Corporation (“GEM”). I am the current Chief Executive Officer of GEM, and am familiar with the assets and obligations of GEM and its affiliates.21
Both declarations express familiarity with “the assets and obligations of GEM and its affiliates” and contain the following identical language:
2. GEM has executed an Agreement with Samson Tug and Barge Company, Inc. (“Samson”), requiring the payment over time of the sums reflected therein, (“Agreement”). The Agreement includes the release of affiliated GEM companies upon execution thereof.
3. GEM has sufficient assets to assure repayment of the Samson obligation. The released affiliates have less asset value and income generation.
4. I understand that Samson is relying on the veracity of the representations contained herein as an inducement to execute the Agreement.22
On November 23, 2009, GEM Nevada filed a Form 10–Q with the Securities and Exchange Commission for the quarter ending September 30, 2009.23 The Form 10–Q reflects that as of that date GEM Nevada had a total stockholders' deficiency of $13,616,790 and a net loss for the first nine months of 2009 of $12,510,521.24 On November 25, 2009, GEM Nevada finalized an agreement to sell GEM Delaware and two of its other affiliates to a third party. 25 That agreement included a provision that GEM Nevada would fully assume GEM Delaware's obligation to Samson and obtain Samson's release of GEM Delaware.26 The sale of GEM Delaware and its affiliates was completed on February 26, 2010 at a price of $14,000,000.27 GEM Nevada's Form 10–Q dated May 24, 2010 states that the net gain to GEM Nevada included a $765,000 bonus to be paid to senior management.28 By September 20, 2010, GEM Nevada had ceased doing business, according to an SEC filing dated September 20, 2010.29
In the months after the execution of the Settlement Agreement and the sworn declarations of Mr. Clark and Mr. Koziol, GEM Nevada made payments totaling $45,000 to Samson toward the amount due. No payment has been made since March 2010.
On October 25, 2011, Samson filed the Complaint that initiated this action in Anchorage Superior Court, seeking the balance then due of over $600,000, including interest.30 The Complaint alleges that Mr. Clark and Mr. Koziol's November 2009 declarations fraudulently and negligently misrepresented both GEM Nevada's ability to repay the debt owed Samson, and the asset value and income generation potential of released affiliates, including GEM Delaware, so as to induce Samson to enter into the Settlement Agreement with GEM Nevada and release GEM Delaware.31
On December 28, 2011, Mr. Clark filed a Notice of Removal to this court under 28 U.S.C. § 1441, asserting diversity of citizenship and an amount in controversy in excess of $75,000.32 Mr. Clark filed this Motion to Dismiss on January 3, 2012.33 Mr. Koziol has not entered a formal appearance in this action, and default was entered against him on April 18, 2012.34
Mr. Clark seeks dismissal of this action based on his assertion that this court lacks personal jurisdiction over both defendants. Alternatively, he asserts that Alaska is the wrong or inconvenient venue for this action, and the case should be transferred to the federal district court in California, or perhaps Washington.
A federal district court may exercise personal jurisdiction over a non-resident defendant in a diversity action if jurisdiction is proper under the long-arm statute of the forum state and consistent with federal constitutional due process principles.35 Alaska's long-arm statute, AS § 09.05.015, permits the exercise of personal jurisdiction “to the maximum extent permitted by due process under the federal constitution.” 36 Although the state statute provides several specific grounds for jurisdiction,37 it also contains a catch-all provision.38 Therefore, a court “need not determine whether [a] case fits perfectly” within the statute's enumerated grounds for jurisdiction, if the court “conclude[s] that due process permits the exercise of jurisdiction” over the defendant.39 Thus, “the statutory and constitutional requirements merge into a single due process test,” 40 such that an analysis of Mr. Clark's jurisdictional argument under the federal Due Process Clause is dispositive.
The United States Supreme Court has held that “[a] court may subject a defendant to judgment only when the defendant has sufficient contacts with the sovereign ‘such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” ’ ”41 Here, the parties agree that this court does not have general personal jurisdiction over the defendants for any and all disputes. But they disagree whether this court may exercise specific personal jurisdiction over the defendants with respect to this particular case.
In Mavrix Photo, Inc. v. Brand Technologies, Inc., the Ninth Circuit discussed the applicable quantum of proof:
In opposing a defendant's motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of establishing that jurisdiction is proper. Where, as here, the defendant's motion is based on written materials rather than an evidentiary hearing, the plaintiff need only make a prima facie showing of jurisdictional facts to withstand the motion to dismiss. The plaintiff cannot “simply rest on the bare allegations of its complaint,” but uncontroverted allegations in the complaint must be...
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