Free Reply to Response to Motion - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR DISTRICT OF DELAWARE : TRI-STATE ENERGY SOLUTIONS, LLP a : Civil Action No. 1:08-cv-209 (JJF) Delaware Limited Liability Partnership; : : Plaintiff, : JURY TRIAL DEMANDED : vs. : : KVAR ENERGY SAVINGS, INC., : : Defendant. : : : REPLY BRIEF IN SUPPORT OF DEFENDANT KVAR ENERGY SAVINGS, INC.'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION, OR IN THE ALTERNATIVE, MOTION TO TRANSFER THIS ACTION TO THE MIDDLE DISTRICT OF FLORIDA

McCarter & English, LLP A. Richard Winchester (#2641) [email protected] Daniel M. Silver (#4758) [email protected] Renaissance Centre 405 N. King Street Wilmington, DE 19801 (302) 984-6300 McCarter & English, LLP William J. Heller [email protected] Four Gateway Center 100 Mulberry Street Newark, NJ 07102 (973) 622-4444 Attorneys for KVAR Energy Savings, Inc.

Date: May 8, 2008

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TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... ii NATURE AND STAGE OF PROCEEDINGS ...............................................................................1 ARGUMENT...................................................................................................................................2 I. KVAR IS NOT SUBJECT TO IN PERSONAM JURISDICTION IN THIS COURT ..........................................................................................................2 ASSUMING ARGUENDO THAT THIS COURT FINDS KVAR SUBJECT TO IN PERSONAM JURISDICTION, KVAR REQUESTS THAT THIS ACTION BE TRANSFERRED TO THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA PURSUANT TO 28 U.S.C. 1404(A) ...................................................................................................5

II.

CONCLUSION..............................................................................................................................10

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TABLE OF AUTHORITIES FEDERAL CASES Baker Electronics, Inc. v. Pentar Systems, Inc., 219 F. Supp. 2d 1260 (M.D. Fla. 2002).........................................................................8 Mancari v. AC & S Corp., 683 F. Supp. 91 (D. Del. 1988)......................................................................................5 MoneyGram Payment Systems, Inc. v. Consorcio Oriental, 65 Fed. Appx. 844 (3d Cir. 2003)..................................................................................8 Nida Corp. v. Ken Nida, 118 F. Supp. 2d 1223 (M.D. Fla. 2000).........................................................................8 Rogal v. Skilstaf, Inc., 446 F. Supp. 2d 334 (E.D. Pa. 2006) .............................................................................8 Schwarzkopf Tech. Corp. v. Ingersoll Cutting Tool Co., 820 F. Supp. 150 (D. Del. 1992)....................................................................................7

STATE CASES Chaplake Holdings, Ltd. v. Chrysler Corp., Civ.A. No. 94C-04-164, 1995 WL. 653510 (Del. Super. Aug. 11, 1995).....................4 Ohrstrom v. Harris Trust Co. of New York, No. CIV. A. 15709, 1998 WL. 8849 (Del. Ch. Jan. 8, 1998) ....................................3, 4 Outokumpu Engineering Enterprises, Inc. v. Kvaerner EnviroPower, Inc., 685 A.2d 724 (Del. Super. 1996)...................................................................................2 Waters v. Deutz Corp., 479 A.2d 273 (Del. 1984) ..............................................................................................3

FEDERAL STATUTES Fed. R. Civ. P. 12(b) ........................................................................................................5, 6 28 U.S.C. § 1404(a) .............................................................................................................5

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STATE STATUTES Del. C. § 3104(c)(4) .....................................................................................................2, 3, 5 Fla. Stat. § 48.193(1) ...........................................................................................................8

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NATURE AND STAGE OF PROCEEDINGS Tri-State1 filed this Action on November 19, 2007 in the Delaware Court of Chancery. KVAR did not receive service of process until March 18, 2008. Tri-State's counsel granted KVAR an extension until April 11, 2008 to file a response to the Complaint. On April 11, 2008, KVAR removed this Action to this Court, and filed a motion to dismiss for lack of personal jurisdiction, or in the alternative, a motion to transfer this action to the Middle District of Florida (the "Motion"), and an Opening Brief in support thereof. On April 28, 2008, Tri-State filed its Answering Brief in Opposition of Defendant KVAR Energy Savings, Inc.'s Motion to Dismiss for Lack of Personal Jurisdiction, or In the Alternative, Motion to Transfer this Action to the Middle District of Florida [D.I. 5] ("Answering Brief" or "AB"). Tri-State's Answering Brief, by failing to squarely address the issues raised in KVAR's Opening Brief, obfuscates the issues before the Court. For example, rather than fully addressing the arguments regarding personal jurisdiction raised in KVAR's Opening Brief (as it should have), Tri-State argues that jurisdiction over Tri-State is not proper in Florida where a parallel action is pending -- an issue that has not been raised by KVAR in this Action and is therefore not properly before this Court. Further, Tri-State's Answering Brief does not address the breadth of Third Circuit appellate and district court authority cited by KVAR in support of its motion to transfer, but instead cites Eleventh Circuit law on the issue which does nothing to aid this Court in reaching a decision on the merits of KVAR's Motion. In an effort to assist this Court in reaching a decision on the merits of KVAR's Motion, KVAR respectfully submits this Reply Brief solely in response to the issues raised by Tri-State in its Answering Brief.
1

All capitalized terms not defined herein have the same meaning as set forth in KVAR's Opening Brief in Support of Defendant KVAR Energy Savings, Inc.'s Motion to Dismiss for Lack of Personal Jurisdiction, or In the Alternative, Motion to Transfer this Action to the Middle District of Florida [D.I. 4] ("Opening Brief" or "OB").

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ARGUMENT I. KVAR IS NOT SUBJECT TO IN PERSONAM JURISDICTION IN THIS COURT KVAR respectfully refers the Court to its Opening Brief for the entirety of its arguments regarding the lack of personal jurisdiction raised therein, as well as the applicable standards of review. KVAR hereby responds to the arguments raised by Tri-State in its Answering Brief. It does so without waiver of the many valid arguments raised in the Opening Brief but not addressed by Tri-State, and therefore apparently conceded by Tri-State. It is Tri-State's burden to make a prima facie showing that KVAR is subject to personal jurisdiction under Section 3104. See, e.g., Outokumpu Engineering Enterprises, Inc. v. Kvaerner EnviroPower, Inc., 685 A.2d 724, 727 (Del. Super. 1996). Tri-State's jurisdictional argument focuses on 10 Del. C. § 3104(c)(4) -- in fact, that is the only sub-section relied upon by Tri-State -- which provides as follows:2 (c) As to cause of action brought by any person arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident, or a personal representative, who in person or through an agent: (4) Causes tortious injury in the State or outside of the State by an act or omission outside the State if the person regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from services, or things used or consumed in the State[.] 10 Del. C. § 3104(c)(4). As noted in the Opening Brief, Section 3104(c)(4) is a general jurisdiction provision. As such, Section 3104(c)(4) permits the Court to exercise jurisdiction when the defendant's contacts with the forum state are unrelated to the cause of action. OB at 16. Jurisdiction under Section 3104(c)(4) is established only when there has been tortious injury to the plaintiff and the
2

Tri-State did not cite to any of the other subsections of the Delaware long arm statute, 10 Del. C.§ 3104(c), nor argue that any other subsection conferred jurisdiction over KVAR -- Tri-State apparently concedes there is no valid basis for personal jurisdiction under those other subsections.

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nonresident defendant: (1) regularly does or solicits business in Delaware, (2) carries on some other continuous course of activity in Delaware, or (3) derives substantial revenue from goods used or consumed or from services rendered in Delaware. Waters v. Deutz Corp., 479 A.2d 273, 275 (Del. 1984); see also OB at 16. Accordingly, to confer personal jurisdiction over KVAR under Section 3104(c)(4), Tri-State must demonstrate that one of the three enumerated jurisdictional "hooks" are met here. They are not. KVAR does not regularly do business in Delaware nor carry on any other consistent course of activity in Delaware. KVAR has no office in Delaware, and no personnel located in Delaware. Taylor Dec. ¶ 2 [D.I. 3]. KVAR makes much of Tri-State's sale of products to a Delaware entity. AB at 7. Merely selling products to a Delaware entity, however, does not satisfy the "doing business in Delaware" requirement under 3104(c)(4); rather, "[u]nder Delaware law, in order to be found to engage in a persistent course of conduct, the nonresident must have a `presence' in Delaware." See Ohrstrom v. Harris Trust Co. of New York, 1998 WL 8849, at *4 (Del. Ch. Jan. 8, 1998). In Harris Trust, Chancellor Chandler discussed the Finkbiner v. Mullins decision in which the Superior Court found that a non-Delaware car dealer which sold hundreds of cars to Delaware car dealers "did not have a presence in Delaware sufficient to establish a persistent course of conduct in Delaware." Harris Trust, 1998 WL 8849, at *4 (citing Finkbiner v. Mullins, 532 A.2d 609, 620 (Del. Super. 1987)). The decisions in Harris Trust and Finkbiner turned on the fact that "all of the elements of the sale took place" outside of Delaware. Harris Trust, 1998 WL 8849, at *4 (citing Finkbiner). Here as well, the elements of KVAR's sales to Tri-State all occurred outside of Delaware, as payment was made in Florida and title and possession changed hands in Florida (OB at 13). Such uncontradicted facts do not support -- but

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rather refute -- a finding of general jurisdiction under the Delaware long arm statute. See Harris Trust, 1998 WL 8849, at *4 (citing Finkbiner). Nor can it be said that Tri-State was KVAR's agent in Delaware, as the Distributor Agreement between the two parties expressly provides otherwise. OB at 6 (citing Exhibit C ¶ 14). Tri-State also relies heavily on KVAR representative Gregory Taylor's alleged four trips to Delaware to meet with Tri-State representatives. Giving Tri-State's assertion of four alleged trips the benefit of the doubt, these casual and isolated contacts with Delaware are in no way sufficient to rise to the level of a "presence" in Delaware. "It is generally recognized that `the casual presence of the corporate agent or even his conduct of single or isolated items [or] activities in a state in the corporation's behalf are not enough to subject it to suit on causes of action unconnected with the activities there.'" Chaplake Holdings, Ltd. v. Chrysler Corp., 1995 WL 653510, at *5 (Del. Super. Aug. 11, 1995) (citing International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)) (emphasis original). Rather, in order to be consistent with due process, a "defendant's activity in the forum must be continuous and substantial." Chaplake, 1995 WL 653510, at *5 (citations omitted). Tellingly, Tri-State's argument that KVAR is subject to personal jurisdiction in Delaware contains the statement of facts from Tri-State's motion to dismiss in the Florida Action, and a total of two (2) new paragraphs, both of which are conclusory and have no legal "argument" or supporting authority. Compare AB at 4-7 with Tri-State Partners' Motion to Dismiss filed in the Florida Action [D.I. 22] at 2-6, a copy of which is attached hereto as Exhibit A. Tri-State's failure to meaningfully respond to KVAR's specific arguments on the issue of jurisdiction constitutes a tacit admission of Tri-State's inability to meaningfully respond.

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Based on the foregoing, Tri-State has utterly and completely failed to meet its burden of making a prima facie showing that KVAR regularly does business in Delaware or carries on any other consistent course of activity in Delaware. conclusion. The objective facts actually belie that

Further, Tri-State has not alleged any facts which show that KVAR derives

substantial revenue from goods or services rendered in Delaware. Tri-State's failure to allege facts which make a prima facie showing under Section 3104(c)(4), combined with Tri-State's concession that the other subsections of 3104(c) are inapplicable, entitles KVAR to a dismissal for lack of personal jurisdiction. II. ASSUMING ARGUENDO THAT THIS COURT FINDS KVAR SUBJECT TO IN PERSONAM JURISDICTION, KVAR REQUESTS THAT THIS ACTION BE TRANSFERRED TO THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA PURSUANT TO 28 U.S.C. § 1404(A) KVAR respectfully refers the Court to its Opening Brief for the entirety of the arguments regarding the appropriateness of a transfer to the Middle District of Florida raised therein, as well as the applicable standards of review. KVAR hereby responds to the arguments raised by TriState in its Answering Brief. It does so without waiver of the many valid arguments raised in the Opening Brief but not addressed by Tri-State and therefore apparently conceded by Tri-State. Taking Tri-State's points in turn, there can be no doubt that this case was properly removed from the Delaware Court of Chancery to this Court. The statutory prerequisites for removal were met, as outlined in the Notice of Removal [D.I. 1], and KVAR is entitled to remove this action -- as a matter of right -- unless it can be shown to have waived that right. See Mancari v. AC & S Corp., 683 F.Supp. 91, 93-94 (D. Del. 1988) (noting defendant's right to remove a case is "absolute"). KVAR has not waived that right. Next, KVAR is not required to answer the Complaint; upon filing a motion to dismiss for lack of personal jurisdiction pursuant to Rule 12(b), a defendant is relieved from filing an answer 5
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to the Complaint. See F.R.C.P. 12(b) (stating "[a] motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed"). Finally, there is no requirement that this Court wait until the Florida Court decides the motions pending in that Court before ruling on KVAR's Motion, and in fact, with the filing of this Reply Brief, the briefing on KVAR's motion in this action is complete; the Court is now free to set a date for oral argument or rule on the papers. Briefing on the motions pending in the Florida Action will not be complete until at least May 30, 2008. The remainder of Tri-State's points on the topic of transfer are not persuasive. Tri-State made no effort to squarely address the arguments made by KVAR, and instead, chose to once again "cut and paste" portions of its filing in the Florida Action into its arguments, complete with case law from the Eleventh Circuit (and none from this District or the Third Circuit). Tri-State fails to address that its principals, Gillen and Chieffo, both executed the NDA, and that copies of each executed NDA were attached as Exhibit B to KVAR's Opening Brief. OB at 5. This undercuts entirely Tri-State's misguided attempt to avoid the application of the forum selection clause by arguing "the NDA was executed from [sic] an entirely differing purpose the sale of two units to Lawrence Gillen" (AB at 9), because Chieffo had no accompanying personal purchase. While Gillen may have executed the NDA earlier in time, he remained bound by it throughout the course of dealings between the parties.3 Moreover, it is inconceivable that NDAs were signed solely for causal purchases at retail. These NDAs were pursuant to a more extensive business relationship than the Tri-State parties would have this Court believe.

3

As noted in the Opening Brief, there can be no doubt that Tri-State is bound by the forum selection clause contained in the NDA; as all of the principals of Tri-State are bound by the forum selection clause, it would belie logic and reason to allow Gillen and Chieffo to escape the application of the forum selection clause when acting through an entity within their sole control, perhaps even an alter ego of Gillen and/or Chieffo. OB at 19 n. 6.

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Rather than addressing the legal impact of the valid and binding forum selection clause contained in the NDA, Tri-State instead argues that "Tri-State and the other Defendant's [sic] are unaffected by its terms." This is incorrect. First, both Tri-State principals, Chieffo and Gillen, signed the NDA. Second, as discussed at length in the Opening Brief, even if Tri-State's allegations against KVAR do not invoke the forum selection clause contained in the NDA, it is enough that the forum selection clause is implicated by KVAR's claims and/or defenses against Tri-State. See OB at 19-20 (citing Wyeth & Brother Ltd. v. CIGNA Int'l Corp., 119 F.3d 1070, 1075 (3d Cir. 1997)). Rather than addressing this point, Tri-State elects to obscure the issues at hand by arguing that Tri-State and the Tri-State Partners are not subject to personal jurisdiction in Florida -- an issue of no relevance to KVAR's motion to transfer. Whether or not Tri-State is subject to personal jurisdiction in the Florida Action is unrelated to this Court's ability to rule on KVAR's motion to transfer. The consideration upon a motion to transfer is not whether the plaintiff would be subject to personal jurisdiction in the transferee jurisdiction as a defendant, but rather whether the action could have been properly brought by the plaintiff in the transferee jurisdiction. See Schwarzkopf Tech. Corp. v. Ingersoll Cutting Tool Co., 820 F.Supp. 150, 151 (D. Del. 1992) (stating "[a]s a threshold issue, the Court must determine if the action `might have been brought' in the transferee district."). Where, as here, Tri-State could have brought, and should have brought, this action in the Middle District of Florida, the Court's analysis on the "threshold issue" ends there. This Court need not consider Tri-State's argument that it is not subject to personal jurisdiction in Florida, as the Middle District of Florida will be addressing that issue. In addition, of the four parties sued in Florida (Tri-State and the three Tri-State Partners), the transferee jurisdiction, certainly Tri-State, as a result of its continuous dealings with KVAR in Florida, will be subject to jurisdiction there.

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When the Middle District of Florida addresses Tri-State's claim that it is not subject to personal jurisdiction in Florida, KVAR is confident that the Court will conclude jurisdiction exits. Pursuant to Fla. Stat. § 48.193(1)(a), Florida courts have jurisdiction over a person or entity when that person or entity either operates, conducts, engages in, or carries on a business or business venture in this state. While the activities of a given defendant must be "considered collectively and show a general course of business activity in the state for pecuniary benefit," see Baker Electronics, Inc. v. Pentar Systems, Inc., 219 F. Supp.2d 1260, 1263 (M.D. Fla. 2002) (citing Suffolk Federal Credit Union v. Continental Ins. Co., 664 So.2d 1153, 1154 (Fla. 3d DCA 1995)), the formation of a business relationship in Florida is enough to confer jurisdiction over a foreign defendant under the Florida long arm statute. See Baker Electronics, Inc, 219 F. Supp.2d at 1263. Under Florida law, the activities of Gillen and Chieffo on behalf of Tri-State are sufficient to establish personal jurisdiction over Tri-State. Further, Tri-State's trademark

infringement gives rise to a tortious injury in Florida, which is itself enough to confer jurisdiction over Tri-State in Florida. See generally Nida Corp. v. Ken Nida, 118 F. Supp.2d 1223, 1231 (M.D. Fla. 2000). Finally, with regard to Tri-State's analysis of the factors a Court considers in deciding whether to a transfer a case, KVAR does not believe it appropriate to apply the law of the Eleventh Circuit to a motion to transfer pending in this Court. KVAR therefore does not address those misplaced arguments herein, but instead respectfully re-asserts the points and authorities raised in the Opening Brief. Importantly, in the Third Circuit, "[f]orum selection clauses are presumptively valid and thus entitled to great and controlling weight in all but the most exceptional case." Rogal v. Skilstaf, Inc., 446 F.Supp.2d 334, 337 (E.D. Pa. 2006) (citing Wall Street Aubrey Golf, LLC v. Aubrey, 2006 WL 1525515, at *1 (3d Cir. June 5, 2006); MoneyGram

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Payment Systems, Inc. v. Consorcio Oriental, S.A., 65 Fed. Appx. 844, 847-848 (3d Cir. May 21, 2003)). And as is the case here, where a forum selection clause is implicated in the dispute, whether initially or in the context of counter-claims or defenses, the forum selection clause applies to the dispute. OB at 19-20. Therefore, assuming arguendo that this Court has

jurisdiction over KVAR, transfer of this Action to the Middle District of Florida is appropriate.

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CONCLUSION For the reasons set forth in KVAR's Opening Brief as well as herein, KVAR respectfully requests the Court dismiss this action for lack of personal jurisdiction over KVAR, or in the alternative, transfer this action to the Middle District of Florida.

McCarter & English, LLP /s/ Daniel M. Silver A. Richard Winchester (#2641) [email protected] Daniel M. Silver (#4758) [email protected] Renaissance Centre 405 N. King Street Wilmington, DE 19801 (302) 984-6300 McCarter & English, LLP William J. Heller [email protected] Four Gateway Center 100 Mulberry Street Newark, NJ 07102 (973) 622-4444 Attorneys for KVAR Energy Savings, Inc. Dated: May 8, 2008

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