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D&P Design, LLC v. Med-1 Partners

October 7, 2009

D&P DESIGN, LLC, PLAINTIFF,
v.
MED-1 PARTNERS, LLC, DEFENDANT.



The opinion of the court was delivered by: William Q. Hayes United States District Judge

ORDER

HAYES, Judge

The matters before the Court are the Motion to Transfer (Doc. # 6) and the Motion to Dismiss (Doc. # 9, 20).

I. Background

On May 27, 2009, Plaintiff D&P Design, LLC ("D&P") initiated this action by filing a Complaint against Defendants Med-1 Partners, LLC ("Med-1"), Jeff Fisher and Luther Schriefer. (Doc. # 1). On June 2, 2009, D&P filed a First Amended Complaint ("FAC") against Defendants Med-1, Jeff Fischer and Luther Schriefer.*fn1 (Doc. # 3).

A. Allegations of the FAC

On February 5, 2009, D&P (a California corporation with its principal place of business in San Diego County, California) and MED-1 (a Delaware corporation with its principal place of business in Bethesda, Maryland) "entered into a written agreement (the 'Agreement') providing, among other things, that D&P would be the exclusive distributor for MED-1 in India ... for the sale of MED-1's Mobile Medical Facilities ('MMFs'). The Agreement was signed by Fischer as Managing Director of MED-1. The Agreement provided that the MMFs would include mobile emergency departments, mobile cardiac facilities, mobile diagnostic facilities and mobile medical clinics." (FAC, Doc. # 3, ¶¶ 1-2, 9). "The parties agreed that the Agreement would be for two years and D&P would be paid 10% of the gross sales price from the sale of MMFs in India." (Id. ¶ 10). "The parties further agreed that they would enter into an agreement whereby MED-1 would pay D&P 10% of the gross sales price from the sale of MMFs to parties ... introduced to MED-1 by D&P." (Id. ¶ 13).

"Based on the Agreement, MED-1 caused business cards to be made for three representatives of D&P identifying them as MED-1's Lead Country Advisors in India. The business cards listed MED-1's business address and phone number in Bethesda, Maryland, and listed separate e-mail addresses on MED-1's domain address. MED-1 also set up e-mail accounts at MED-1 with passwords for D&P representatives. MED-1's representatives introduced D&P representatives as MED-1's Lead Country Advisors for India." (Id. ¶ 14).

"In reliance on MED-1's promises, and the Agreement," representatives of D&P traveled to India and introduced Med-1 representatives to a potential buyer of Med-1's MMFs. (Id. ¶¶ 15-16). Representatives of D&P also introduced Med-1 representatives "to two potential agents for the sale of MMFs in Jordan and Iraq." (Id. ¶ 17).

"On March 31, 2009, MED-1 sent D&P a draft 'Representative Agreement' that was inconsistent with the terms of the Agreement. By way of example only, it proposed a one year term, not two years, and it proposed an unspecified percentage of the net sales price, not 10% of the gross sales price as agreed in the Agreement. The draft 'Representative Agreement' also did not include any provisions regarding payments to D&P from the sales of MMFs to parties outside India introduced to MED-1 by D&P." (Id. ¶¶ 20-21).

On April 8, 2009, "Schriefer on behalf of MED-1 denied that D&P were MED-1's Lead Country Advisors for India at that time, and demanded that D&P cease holding itself out as such." (Id. ¶ 24). "On April 29, 2009, Schriefer on behalf of MED-1 sent D&P a letter unilaterally terminating the Agreement, and demanding that D&P cease holding itself out as MED-1's Lead Country Advisor in India or elsewhere." (Id. ¶ 28).

The FAC alleges claims for (1) breach of contract, (2) breach of the covenant of good faith and fair dealing, (3) intentional misrepresentation, (4) false promise, and (5) negligent misrepresentation. With respect to the first two causes of action, D&P alleges that "D&P has suffered damages in an amount to be proven at the time of trial, but not less than $75,000." (Id. ¶¶ 33, 39). D&P seeks compensatory and punitive damages. (Id. at 7-10).

B. Motion to Dismiss and Motion to Transfer

On June 19, 2009, Defendants filed the Motion to Dismiss on the following grounds:

(1) the Court lacks subject-matter jurisdiction; (2) the Court lacks personal jurisdiction over the Defendants; (3) the venue is improper; (4) the FAC fails to state a claim upon which relief can be granted.*fn2 (Doc. # 9). On June 19, 2009, Defendants filed the Motion to Transfer, moving the Court to transfer this action pursuant to 28 U.S.C. § 1404(a) to the United States District Court for the District of Columbia or to the United States District Court for the District of Maryland, Greenbelt Division. (Doc. # 6).

In support of the Motion to Transfer and the Motion to Dismiss, Defendants attached a Declaration from Jeff Fischer, Director of Business and Government Affairs for Med-1, a Declaration from Luther Schriefer, Managing Director for Med-1, and a copy of the "Agreement" referenced in the FAC.*fn3 (Fischer Decl., Doc. # 7-3, ¶ 3; Schriefer Decl., Doc. # 7-4, ¶ 3).

On July 7, 2009, D&P voluntarily dismissed Defendants Jeff Fischer and Luther Schriefer without prejudice pursuant to Federal Rule of ...


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