United States District Court, D. Maryland
For Perdue Holdings, Inc., Plaintiff: Damon W D Wright, LEAD ATTORNEY, Venable LLP, Washington, DC; Elissa Brockbank Reese, PRO HAC VICE, Venable LLP, Washington, DC.
For BRF S.A., Defendant: Brandon Cody Martin, Jeffrey Eric Ostrow, LEAD ATTORNEYS, PRO HAC VICE, Simpson Thacher and Bartlett LLP, Palo Alto, CA; Lori Ellen Lesser, LEAD ATTORNEY, PRO HAC VICE, Simpson Thacher and Bartlett LLP, New York, NY; Geoffrey H Genth, Patrice Meredith Clarke, Kramon and Graham PA, Baltimore, MD.
James K. Bredar, United States District Judge.
Perdue Holdings, Inc. (" Plaintiff" ) brought this suit against BRF S.A. (" Defendant" )
for alleged breach of contract. Now pending before the Court is Defendant's motion to dismiss for lack of personal jurisdiction (ECF No. 28), and Plaintiff's motion requesting a hearing on this issue, (ECF No. 34). The issues have been briefed (ECF Nos. 28, 32, 33), and no hearing is required, Local Rule 105.6. For the reasons explained below, Defendant's motion to dismiss is GRANTED.
Plaintiff is a wholly-owned subsidiary of an international food producer, headquartered in Maryland. (ECF No. 32 at 9.) Defendant is an international food company and exporter of poultry meats ( id.), headquartered in Brazil, (ECF No. 29 at 8). To sell their respective poultry products, Plaintiff uses the mark " PERDUE," and Defendant uses the mark " PERDIX." (ECF No. 32 at 7.)
In 2002, Plaintiff became concerned that consumers might confuse the competing marks. ( Id. at 10.) This concern prompted negotiations between the parties, which culminated in the formation of their " 2003 Worldwide Coexistence Agreement" and a later 2005 addendum, collectively referred to as " the Agreement." ( Id.) The Agreement includes promises by both parties not to use and/or register their respective marks in competing territories. Plaintiff agreed not to use and/or register its mark in Brazil, and Defendant agreed not to use and/or register its mark anywhere else in the world. ( Id. at 11.) The Agreement selects Maryland law in its choice-of-law provision ( id.), but does not contain a forum selection clause, ( id. at 18). Plaintiff executed the Agreement from Maryland ( id. at 10), and Defendant executed the Agreement from Brazil (ECF No. 29 at 16).
Plaintiff filed its Complaint against Defendant on April 1, 2014, alleging that Defendant breached the Agreement by pursuing applications for trademark registrations in Argentina, Morocco, Sao Tome & Principe, and Uruguay. (ECF No. 1 at 5.) Plaintiff also alleges that Defendant breached by refusing to abandon trademark registrations in Canada, China, Hong Kong, Kuwait, Lebanon, Argentina, Bolivia, Paraguay, and Uruguay. ( Id.) Defendant filed this motion to dismiss for lack of personal jurisdiction on July 19, 2014. (ECF No. 28.)
II. LEGAL STANDARD
A motion to dismiss under Fed.R.Civ.P. 12(b)(2) is a test of the court's personal jurisdiction over the defendant. " [W]hen, as here, the court addresses the question [of personal jurisdiction] on the basis only of motion papers, supporting legal memoranda and the relevant allegations of a complaint, the burden on the plaintiff is simply to make a prima facie showing of a sufficient jurisdictional basis to survive the jurisdictional challenge." New Wellington Fin. Corp. v. Flagship Resort Dev. Corp., 416 F.3d 290, 294 (4th Cir. 2005).
Defendant moves to dismiss Plaintiff's claims for lack of ...