Savage v. Bioport, Inc., 1:06-CV-00081 (RCL).

• Decision Date: 27 October 2006
• Docket Number: No. 1:06-CV-00081 (RCL).,1:06-CV-00081 (RCL).
• Citation: 460 F.Supp.2d 55
• Parties: Gary SAVAGE, Plaintiff, v. BIOPORT, INC., Defendant.
• Court: U.S. District Court — District of Columbia

460 F.Supp.2d 55

Gary SAVAGE, Plaintiff, v. BIOPORT, INC., Defendant.

No. 1:06-CV-00081 (RCL).

United States District Court, District of Columbia.

October 27, 2006.

COPYRIGHT MATERIAL OMITTED

John Edward Carpenter, Washington, DC for Plaintiff.

Gerald Zingone, Thelen Reid & Priest LLC, Washington, DC, for Defendant.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, District Judge.

Pending before the Court is defendant's Motion to Dismiss, or in the alternative, to Transfer to the Western District of Michigan. The plaintiff, Gary Savage ("Savage"), filed a complaint alleging that defendant BioPort Corporation ("BioPort") is liable for negligence, breach of warranties, and strict products liability related to a product called anthrax vaccine absorbed ("AVA"). Having considered the pleadings, the motion, the opposition, the reply, the submitted exhibits, and the relevant law, the Court GRANTS BioPort's Motion to Transfer [8] the case to the Western District of Michigan pursuant to 28 U.S.C. § 1404(a).

I. BACKGROUND

Plaintiff Savage is a citizen of the District of Columbia. (Pl.'s Br. 2.) Defendant BioPort is a corporation with its principal place of business in Lansing, Michigan. (Def. Br. 2 ¶ 1.) Beginning in March 2000, BioPort's sole business was the manufacture and sale of AVA and certain research and development activities. (Id. at 2 ¶ 5.) In 2002, Savage was stationed as a sergeant in the U.S. Army at Fort Benning, Georgia. (Id. at 1.) In November and December of that year, Savage received three shots of AVA. (Pl.'s Comp. ¶ 66.) On January 4, 2003, Savage was hospitalized after he collapsed while jogging. (Id. at ¶ 67.) Approximately one week later, Savage was transferred from Fort Benning to Walter Reed Army Medical Center in Washington, D.C. (Id. at ¶ 68.) Savage alleges that he suffers serious ailments from the AVA inoculations. (Id. at ¶ 68.)

BioPort is not registered to do business in the District of Columbia. (Def. Br. p. 2 ¶ 2.) It has never maintained an office, employee, telephone, business records, mailing address, or a registered agent for the service of process in Washington, D.C. (Id.) Furthermore, BioPort does not own or lease real property in the District of Columbia. (Id.). BioPort's other contacts in the District include: (1) sales contracts with the U.S. Department of Health and Human Services ("HHS") for the purchase of AVA (Def.'s Reply Br. 3); (2) funding provided to the Partnership for Anthrax Vaccine Education at George Washington University Medical Center (Def.Br.¶ 12); (3) one marketing meeting in the District of Columbia with the District's Police, Fire, and Emergency Medical Services Chiefs (Id. ¶ 10); (4) advertisements published in Roll Call, The Hill, and The Washington Times newspapers (Id. ¶ 11); (5) contracts with the U.S. Department of Defense ("DoD") for the sale of AVA (Def.Br.6); (6) shipments of AVA to DoD facilities in the District, made at DoD's request, amounting to less than one percent of all DoD purchases (Id. ¶ 7); and (7) legal counsel hired in the District to represent BioPort (Id. ¶ 13).

II. DISCUSSION

A Personal Jurisdiction

BioPort's Motion to Dismiss states that this Court lacks personal jurisdiction, pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. To determine whether a court has jurisdiction over a defendant, it must first "determine whether jurisdiction over a party is proper under the applicable local long-arm statute and whether it accords with the demands of due process." United States v. Ferrara, 54 F.3d 825, 828 (D.C.Cir.1995). A court may find personal jurisdiction over a defendant through either general or specific jurisdiction. Midland v. F. Hoffman-Laroche, Ltd., 270 F.Supp.2d 15, 19 (D.D.C. 2003).

1. General Jurisdiction

District of Columbia courts may "exercise `general jurisdiction' over a foreign corporation as to claims not arising from the corporation's conduct in the District, if the corporation is `doing business' in the District." Gorman v. Ameritrade Holding Corp., 293 F.3d 506, 509 (D.C.Cir. 2002) (citing D.C.Code § 13-334(a)). "Under the Due Process Clause, such general jurisdiction over a foreign corporation is only permissible if the defendant's business contacts with the forum district are `continuous and systematic.'" Id. at 509-10 (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)). At issue is whether BioPort has "`purposefully availed itself of the privilege of conducting business in the forum state' and whether the defendant's conduct in connection with the forum is such that it `should reasonably anticipate being haled into court there.'" Atlantigas Corp. v. Nisource, Inc., 290 F.Supp.2d 34, 52 (D.D.C.2003) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-75, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)).

BioPort's contacts with the District are not sufficiently continuous and systematic to satisfy the due process requirements of general jurisdiction. As previously noted, BioPort does not maintain an office, mailing address, telephone, employee, or registered agent for service of process in the District of Columbia. (Def.'s Br. 7.) BioPort does not own or lease real property or maintain business records in the District. (Id.) Furthermore, BioPort has never marketed or sold AVA for distribution or use by the general public, and it has never sold AVA to a resident of the District of Columbia. (Id) BioPort's contacts are sporadic and insufficient to provide it notice that BioPort must defend itself in the District of Columbia for any claim arising outside of the District. See Atlantigas, 290 F.Supp.2d at 52 (holding that contacts must be so continuous and systematic that they serve as notice of general jurisdiction to the nonresident defendant). To do so would not comport with "traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Wash., 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

Savage maintains that BioPort is subject to general jurisdiction under the District's long-arm statute that reaches "foreign corporations doing business in the district." D.C.Code 13-334(a); (Pl.'s Br. 6-7, 9.) Savage asserts that BioPort's contacts in the District satisfy the "doing business" requirement of the long-arm statute. (Pl.'s Br. 9.) However, the D.C. Circuit distinguishes between "`doing business' when that term signals local activity sufficient to support all-purpose (general) jurisdiction over a defendant; [and] `transacting business,' invoked as a basis for specific adjudicatory authority over claims relating to the very business transacted...." Crane v. Carr, 814 F.2d 758, 763 (D.C.Cir.1987); see also El-Fadl v. Central Bank of Jordan, 75 F.3d 668, 675 (D.C.Cir.1996) (holding that § 13-334(a) requires a continuing corporate presence in the forum). BioPort's limited contacts fall short of satisfying the "doing business" requirement of the long-arm statute. Its contacts are only sufficient for "transacting business," thus BioPort is only subject to specific jurisdiction arising out of its contacts in the forum. BioPort is not subject to general jurisdiction in the District of Columbia. BioPort also argues that Savage's service of process was insufficient under § 13-334(a); however, this Court does not need to address that issue to find that BioPort was not "doing business" in the forum.

2. Specific Jurisdiction

A court's jurisdiction over a defendant satisfies the demands of due process when there are "certain minimum contacts with [the forum] such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'" Int'l Shoe, 326 U.S. at 316, 66 S.Ct. 154 (citations omitted). "The defendant's conduct and connection with the forum State [must be] such that he should reasonably anticipate being haled into court there." Ferrara, 54 F.3d at 828 (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)).

If a defendant does not reside within or maintain a principal place of business in the District of Columbia, then the District's long-arm statute, D.C.Code § 13-423, provides the only basis in which a court may exercise personal jurisdiction over the defendant. Deutsch v. United States Dep't of Justice, 881 F.Supp. 49, 52 (D.D.C.1995), aff'd, 93 F.3d 986 (D.C.Cir. 1996). The statute provides, in relevant part:

(a) A District of Columbia court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person's —

(1) transacting any business in the District of Columbia; ....

(b) When jurisdiction over a person is based solely upon this section, only a claim for relief arising from acts enumerated in this section may be asserted against him.

D.C.Code 13-423 (2006). The transacting any business finger of the long-arm statute "has been held by the District of Columbia Court of Appeals to be coextensive [] with the Constitution's due process limit." Crane, 814 F.2d at 763 (citing Mouzavires v. Baxter, 434 A.2d 988, 990-92 (D.C.1981) (en banc) cert. denied, 455 U.S. 1006, 102 S.Ct. 1643, 71 L.Ed.2d 875 (1982)). Thus, an out-of-state defendant may be haled into a court "if the defendant has `purposefully directed' his activities at residents of the forum, and the litigation results from alleged injuries that `arise out of or relate to' those activities." Burger King, 471 U.S. at 474, 105 S.Ct. 2174 (internal citations omitted) (citing Helicopteros, 466 U.S. at 414, 104 S.Ct. 1868).

Savage relies on Shoppers Food Warehouse v. Moreno, 746 A.2d 320 (D.C.App. 2000) (en banc) to satisfy the purposeful direction requirement of the specific jurisdiction analysis. (Pl.'s Br. 7-8.) In Shoppers, a Maryland and Virginia supermarket chain placed advertisements for its stores and products in the Washington Post newspaper. 746 A.2d at 330. The advertisements were circulated in...