United States District Court, D. Maryland
RICHARD D. BENNETT, District Judge.
Plaintiff TrimGen Corporation ("TrimGen" or "Plaintiff") brings this diversity action against Defendant Iverson Genetic Diagnostics, Inc. ("Iverson" or "Defendant"), seeking damages of $1, 468, 979.98, plus pre-judgment interest, stemming from a contract dispute between the parties. TrimGen alleges that Iverson has defaulted on its contract with TrimGen by failing to pay for goods manufactured and delivered by TrimGen. Currently pending before this Court is Iverson's Motion to Dismiss (ECF No. 5) and TrimGen's Motion for Leave to File a Surreply (ECF No. 12). The parties' submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2014). For the reasons that follow, Iverson's Motion to Dismiss (ECF No. 5) is DENIED and TrimGen's Motion for Leave to File a Surreply (ECF No. 12) is GRANTED.
In a ruling on a motion to dismiss, this Court must accept the factual allegations in the plaintiff's complaint as true and construe those facts in the light most favorable to the plaintiff. See, e.g., Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).
Plaintiff TrimGen, a Maryland corporation, manufactures DNA testing kits for "genotyping of drug sensitivity and... mutation detection of various cancers." Compl. ¶¶ 1, 5, ECF No. 1. TrimGen's principal place of business is located at 34 Loveton Circle, Sparks, Maryland 21152. Id. ¶ 1. Defendant Iverson, a Nevada corporation, provides, among other services, genetic testing for drug sensitivity. Id. ¶¶ 2, 6. Iverson's executive offices are located in Seattle, Washington, and it also owns a Clinical Laboratory Improvement Amendment (CLIA)-certified laboratory in South Carolina at which it performs the genetic testing. Id. ¶¶ 2, 6.
Iverson allegedly contacted TrimGen in Maryland to establish a contract in which TrimGen would sell genotyping test kits to Iverson. Id. ¶ 7. The contract negotiations occurred over the telephone, not in person, as TrimGen had originally alleged in its Complaint. See Resp. in Opp. to Def.'s Mot. to Dismiss, 2 n.1, ECF No. 8; see also Wang Aff. ¶ 5, ECF No. 8-1. Iverson representatives, however, traveled to Maryland on two occasions to meet with TrimGen to discuss several business matters, including technical specifications for the testing kits in the subject contract dispute. Resp. in Opp. to Def.'s Mot. to Dismiss, at 2 n.1; Wang Aff. ¶¶ 6, 8.
Under the terms of the contract, TrimGen would manufacture the testing kits in Maryland, and then ship the kits to Iverson's laboratory in South Carolina. Id. Iverson would then pay TrimGen for the delivered product within ninety days from the date of the invoice. Id. ¶ 9. From April 2012 through March 2014, Iverson placed orders of $6, 755, 859.98 in total. Resp. in Opp. to Def.'s Mot. to Dismiss, at 2 (citing Wang Aff. ¶ 9). Of that sum, $1, 468, 979.98 allegedly remains outstanding. Id.; see also Compl. ¶ 10; Compl. Ex. A, ECF No. 1-1 (Invoices).
TrimGen filed the subject diversity action seeking the unpaid $1, 468, 979.98, plus prejudgment interest. See Compl. Defendant moved to dismiss the Complaint pursuant to Rules 12(b)(2) and 12(b)(3) of the Federal Rules of Civil Procedure. See Mot. to Dismiss, ECF No. 5. Iverson contends that it is not subject to the personal jurisdiction of this Court, and, in the alternative, that venue is improper. Id. After briefing was complete on the matter of Defendant's Motion to Dismiss, Plaintiff filed a Motion for Leave to File a Surreply (ECF No. 12).
STANDARD OF REVIEW
I. Motion to Dismiss Under Rules 12(b)(2) and 12(b)(3)
A motion to dismiss under Rule 12(b)(2) of the Federal Rules of Civil Procedure for lack of personal jurisdiction challenges a court's authority to exercise its jurisdiction over the moving party. Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989). The jurisdictional question is "one for the judge, with the burden on the plaintiff ultimately to prove the existence of a ground for jurisdiction by a preponderance of the evidence." Id. A court may hold an evidentiary hearing or permit discovery as to the jurisdictional issue, but it also may resolve the issue on the basis of the complaint, motion papers, affidavits, and other supporting legal memoranda. Consulting Eng'rs Corp. v. Geometric Ltd., 561 F.3d 273, 276 (4th Cir. 2009); see also Armstrong v. Nat'l Shipping Co. of Saudi Arabia, Civ. A. No. ELH-13-03702, 2015 WL 751344, *3 (D. Md. Feb. 20, 2015). In the latter situation, a plaintiff need only make "a prima facie showing of a sufficient jurisdictional basis to survive the jurisdictional challenge." Consulting Eng'rs Corp., 561 F.3d at 276. When considering whether the plaintiff has made the requisite showing, "the court must take all disputed facts and reasonable inferences in favor of the plaintiff." Carefirst of Maryland, Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003).
II. Motion to Dismiss Under Rule 12(b)(3)
A motion to dismiss pursuant to Rule 12(b)(3) for improper venue requires a similar inquiry to that of Rule 12(b)(2). See Bahn v. Chicago Motor Club Ins. Co., 634 A.2d 63, 69 (Md. Ct. Spec. App. 1993). Once again, the plaintiff bears the burden of establishing that venue is proper, although the court must draw all reasonable inferences in favor of the plaintiff. Jones v. Koons Automotive, Inc., 752 F.Supp.2d 670, 680 (D. Md. 2010) (citing Three ...