United States District Court, D. Maryland
L. HOLLANDER, UNITED STATES DISTRICT JUDGE
Tulkoff Food Products, Inc. (“Tulkoff Food”)
brought suit against defendant Wm. E. Martin and Sons Co.,
Inc. (“Martin and Sons” or “Martin
Spices”) (ECF 1), alleging breach of a “Sales
Booking” agreement. Id. ¶¶ 23-28;
see ECF 1-1 (“Agreement” or “Sales
Booking”). Under the Agreement, Martin and Sons sold
thirty-six full container loads (“FCL”) of minced
Chinese garlic to Tulkoff Food, to be delivered on a
particular schedule. See ECF 1-1. Tulkoff
Food claims that Martin and Sons failed to deliver nine of
the 36 FCLs, as required by the Agreement. ECF 1, ¶ 27.
As a result, Tulkoff Food alleges that it has incurred more
than $564, 000 in “direct, consequential, and
incidental damages.” Id. ¶ 28.
and Sons has moved to dismiss for lack of personal
jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(2). ECF 7. The
motion is supported by a memorandum of law (ECF 7-1)
(collectively, “Motion”) and an exhibit. ECF 7-2.
Tulkoff Food opposes the Motion (ECF 12,
“Opposition”) and has submitted an exhibit. ECF
12-1. Martin and Sons has replied. ECF 13
Motion has been fully briefed and no hearing is necessary to
resolve it. See Local Rule 105.6. For these reasons
that follow, I shall deny the Motion.
Food is a Maryland corporation with its principal place of
business in Baltimore. ECF 1, ¶ 1. According to Tulkoff
Food, it is a “leading manufacturer of food service
goods, supplying a variety of full-flavored, high-quality
condiments, specialty sauces and ingredients for co-pack,
private label, food service, industrial and retail customers
nationwide.” Id. ¶ 6. Philip Tulkoff is
the president of Tulkoff Food. ECF 12-1 (Tulkoff Affidavit),
Martin is vice president of Martin and Sons. ECF 7-2 (Martin
Declaration), ¶ 1. Martin and Sons is a New York
corporation with its principal place of business in Roslyn,
New York. Id. ¶ 5. Mr. Martin describes
defendant as an “importer of spices, seeds and herbs,
which it sells for its own account from a warehouse in New
Jersey.” Id. ¶ 6. Martin and Sons also
“facilitates transactions between overseas shippers of
spices, seeds and herbs which are delivered directly to the
purchaser of the product.” Id. ¶ 7.
Food and Martin and Sons entered into the Agreement on or
about August 20, 2015. See ECF 1-1. As noted, under
the Agreement, Martin and Sons sold to Tulkoff Food 36 FCLs
of minced Chinese garlic, each containing approximately 39,
500 pounds of garlic. Id. The garlic was to be
delivered over a 13-month schedule, as set forth in the
Agreement. Id. Tulkoff Food agreed to pay $1.58 per
pound of garlic. Id. Notably, the Agreement
provides, id.: “Proper execution of this
contract is the responsibility of the shipper.” In its
Complaint, Tulkoff Food claims that Martin and Sons handled
all aspects of shipping the garlic and entered into contracts
for the transportation of the shipments. ECF 1, ¶¶
14, 15. But, in his Declaration, Mr. Martin counters that
Martin and Sons did not handle any of the aspects of shipping
the garlic. ECF 7-2, ¶ 19. He also avers that Martin
& Sons did not enter into contracts for the
transportation of the shipments. Id. ¶ 20.
According to Mr. Martin, the shipper for this contract was
Shandong Sanxing Food Co., Ltd. (“Sanxing”), a
producer and shipper in China. Id. ¶ 17. Mr.
Martin asserts: “The identity of the Chinese shipper
was known to and approved by Tulkoff [Food] at the time of
the transaction.” Id.
Martin explains that the product due under the Agreement was
shipped directly by Sanxing to Tulkoff Food. Id.
¶ 18. To this end, Mr. Martin states that Martin and
Sons “did not handle . . . (1) pickup of garlic from
facilities in China; (2) shipping of garlic to Chinese
port(s), including in Qingdao; (3) shipping of garlic from
ports such as Qingdao to a port in Baltimore, Maryland; or
(4) shipping of garlic from Baltimore's port to Tulkoff
[Food's] facilities in Maryland.” Id.
¶ 19. Rather, Mr. Martin maintains that defendant
entered into a contract with TRA Spice Inc. (“TRA
Spice”) to “facilitat[e] the shipments between
Sanxing and Tulkoff [Food] . . . .” Id. ¶
21. According to Mr. Martin, all of the
“activities” concerning the shipment of the
garlic were handled either by Sanxing or TRA Spice.
Id. ¶ 22.
Affidavit, Mr. Tulkoff disputes Mr. Martin's
characterization of the shipping arrangements. ECF 12-1.
According to Mr. Tulkoff, no representative of Tulkoff Food
“met or communicated with [Sanxing] in relation to the
Sales Booking.” Id. ¶ 6. Moreover, Mr.
Tulkoff states that during the course of performance of the
Agreement, Martin and Sons “handled all aspects of
shipping the minced garlic.” Id. ¶ 7.
Specifically, Mr. Tulkoff avers, id.:
Martin Spices handled at least the following shipping
activities: (1) pickup of garlic from facilities in China;
(2) shipping of garlic to Chinese port(s), including in
Qingdao; (3) shipping of garlic from ports such as Qingdao to
a port in Baltimore, Maryland; (4) shipping of garlic from
Baltimore's port to Tulkoff [Food's] facilities in
Maryland; and (5) paying all duties or tariffs due to the
United States government upon entry of any shipment.
support of its position, Tulkoff Food submitted exhibits with
Mr. Tulkoff's Affidavit, consisting of emails that appear
to be from Martin and Sons. See Id. at 7-97. The
emails, sent from the address
“firstname.lastname@example.org”, provide information
such as the date of the shipments of the containers and
estimated dates of arrival. See, e.g., id.
at 7-8. Several of the emails also provide updates regarding
the shipments, including changes in the estimated dates of
arrival (e.g., Id. at 23-24, 32-33, 43-44, 53-54)
and information regarding customs and FDA inspections.
Id. at 16-17.
to Tulkoff Food, in or around September 2016, Martin and Sons
“fell significantly behind” on the shipping
schedule in the Agreement. ECF 1, ¶ 16. Tulkoff Food
claims that on January 18, 2017, Martin and Sons repudiated
its duties under the Agreement, “claiming that [Martin
and Sons] was never responsible for delivering minced Chinese
garlic to Tulkoff [Food] in the first place.”
Id. ¶ 19. Tulkoff Food alleges that it has been
forced to pay $564, 060 to obtain cover and that it will
continue to incur additional damages that are
“consequential to or incidental to Martin Spices'
breaches.” Id. ¶¶ 21, 22.
Motion, Martin and Sons claims that this Court lacks personal
jurisdiction over it. ECF 7-1 at 1. In his Declaration, Mr.
Martin provides details concerning the contacts between
Martin and Sons and the State of Maryland.
particular, Mr. Martin avers that “Martin and Sons does
not own or lease any real property in Maryland.” ECF
7-2, ¶ 8. He also claims that “Martin and Sons
does not have, and has never had, any office, phone listings,
mailing address, bank account, authorized agents,
subsidiaries, or employees in Maryland.” Id.
¶ 9. Further, Mr. Martin avers that during the past
three years, Martin and Sons has had “slightly under
four hundred total customers”, of which approximately
seven, including Tulkoff Food, were located in Maryland.
Id. ¶ 10. And, Mr. Martin asserts that
“no officer or employee of Martin and Sons is regularly
present in Maryland on business, and the last time any
officer or employee of Martin and Sons went to Maryland for
any business was approximately more than seven years
ago.” Id. ¶ 11.
addition, Mr. Martin maintains that “Martin and Sons
did not initiate the contacts that led to the transaction at
issue in this lawsuit.” Id. ¶ 14.
According to Mr. Martin, “neither [Mr. Martin] nor any
officer or employee of Martin and Sons traveled to Maryland
in connection with the transaction at issue in this
lawsuit.” Id. ¶ 15.
noted, Tulkoff Food has submitted Mr. Tulkoff's Affidavit
in support of its position that this Court has personal
jurisdiction over Martin and Sons. According to Mr. Tulkoff,
the relationship between Martin and Sons and Tulkoff Food
dates to 1993. Mr. Tulkoff avers that “[s]ince 1993,
Martin Spices and Tulkoff [Food] have entered into at least
27 sales booking contracts, under which Martin Spices sold
and delivered several hundred container loads of
spices” to Tulkoff Food in Maryland, consisting of
“significantly more than ten million pounds of spices .
. . .” Id. ¶ 11. The aggregate value of
spices sold by Martin and Sons to Tulkoff Food during the
length of their relationship is more than $11.5 million.
Id. ¶ 13. Mr. Tulkoff also asserts:
“Throughout the course of dealings between Tulkoff
[Food] and Martin Spices, Martin Spices represented to
Tulkoff [Food] that it controlled the manner, method, and
timing of delivering spices to Tulkoff [Food] in
Maryland.” Id. ¶ 15.
to Mr. Tulkoff, the parties “have exchanged hundreds or
perhaps thousands of communications both into and out of
Maryland, including phone calls, emails, letters, invoices,
sales booking, and purchase orders.” Id.
¶ 17. He also avers: “At some point in or around
October 2002, representatives from Martin Spices traveled in
person to Tulkoff [Food's] Maryland facilities to contact
Tulkoff [Food], discuss the business relationship between
Tulkoff [Food] and Martin Spices, solicit further business
with Tulkoff [Food], and initiate further business with
Tulkoff [Food].” Id. ¶ 14.
facts are included in the Discussion.
Standard of Review
and Sons's motion to dismiss for lack of personal
jurisdiction is predicated on Fed.R.Civ.P. 12(b)(2).
“[A] Rule 12(b)(2) challenge raises an issue for the
court to resolve, generally as a preliminary matter.”
Grayson v. Anderson, 816 F.3d 262, 267 (4th Cir.
2016). Under Rule 12(b)(2), the burden is “on the
plaintiff ultimately to prove the existence of a ground for
jurisdiction by a preponderance of the evidence.”
Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989);
see Universal Leather, LLC v. Koro AR, S.A., 773
F.3d 553, 558 (4th Cir. 2014).
the existence of jurisdiction turns on disputed factual
questions the court may resolve the [jurisdictional]
challenge on the basis of a separate evidentiary hearing, or
may defer ruling pending receipt at trial of evidence
relevant to the jurisdictional question.”
Combs, 886 F.2d at 676. A court may also, in its
discretion, permit discovery as to the jurisdictional issue.
See Mylan Laboratories, Inc. v. Akzo, N.V., 2 F.3d
56, 64 (4th Cir. 1993). However, neither discovery nor an
evidentiary hearing is required in order for the court to
resolve a motion under Rule 12(b)(2). See generally
5B C. Wright & A. Miller, Federal Practice &
Procedure § 1351 at 274-313 (3d ed.) (“Wright
plaintiff's burden in establishing jurisdiction varies
according to the posture of a case and the evidence that has
been presented to the court.” Grayson, 816
F.3d at 268. If the district court addresses the question of
personal jurisdiction as a preliminary matter, it may rule
solely on the basis of motion papers, supporting legal
memoranda, affidavits, and the allegations in the complaint.
Consulting Engineers Corp. v. Geometric Ltd., 561
F.3d 273, 276 (4th Cir. 2009); see Grayson, 816 F.3d
at 268. In that circumstance, the “plaintiff need only
make ‘a prima facie showing of personal
jurisdiction to survive the jurisdictional
challenge.'” Grayson, 816 F.3d at 268
(quoting Combs, 886 F.2d at 676). “When
determining whether a plaintiff has made the requisite
prima facie showing, the court must take the
allegations and available evidence relating to personal
jurisdiction in the light most favorable to the
plaintiff.” Grayson, 816 F.3d at 268; see
Carefirst of Maryland, Inc. v. Carefirst Pregnancy Ctrs.,
Inc., 334 F.3d 390, 396 (4th Cir. 2003). But,
“district courts are not required . . . to look solely
to the plaintiff's proof in drawing those
inferences.” Mylan Laboratories, 2 F.3d at 62.
“‘[a] threshold prima facie finding that
personal jurisdiction is proper does not finally settle the
issue; plaintiff must eventually prove the existence of
personal jurisdiction by a preponderance of the evidence,
either at trial or at a pretrial evidentiary
hearing.'” New Wellington Fin. Corp. v.