JOHN D. BATES, District Judge.
Abdoulaye Tall, proceeding pro se, brings this suit against Comcast of Potomac, LLC, and the Credit Protection Association.
Before the Court is Comcast of Potomac's motion to dismiss for lack of personal jurisdiction. After the parties briefed that motion, the Court determined that they had failed to consider two factual issues potentially affecting the Court's jurisdiction over Comcast of Potomac. The Court therefore propounded interrogatories regarding those issues. See June 17, 2010 Order [Docket Entry 19], at 5-6. Although Tall had requested jurisdictional discovery in his opposition to Comcast of Potomac's motion to dismiss, the Court concluded that the parties' interrogatory responses might obviate the need for such discovery. The parties have now responded to the Court's inquiries by affidavit and, for the reasons set forth below, the Court will grant Comcast's motion and deny Tall's request for further jurisdictional discovery.
In 2005, Tall contracted with Comcast of Potomac to obtain cable TV and internet service to his Montgomery County, Maryland apartment. Compl. ¶ 8. He alleges that in November of that year he noticed "a disruption in his cable service," Compl. ¶ 9, which Comcast of Potomac "failed to restore" despite numerous phone calls, Compl. ¶¶ 10-11. He contends that he suffered this disruption even though he overpaid his cable bill by approximately $14, Compl. ¶ 9, and "sent receipt of payment to Comcast by fax, as directed by Comcast's agents," Compl. ¶ 11. Tall's efforts were apparently fruitless, as "Comcast's agent came to plaintiff's apartment and picked up their equipments [sic]. The agent signed a discharge confirming have recuperated the equipments [sic]." Compl. ¶ 12.
Thereafter, "defendants Comcast and Credit Protection Association claimed that plaintiff owed defendant Comcast" approximately $153 for unpaid service, unreturned equipment, and late fees and taxes. Compl. ¶ 13. Tall alleges that he "promptly disputed defendants claim [sic], by phone and in writing," Compl. ¶ 14, and that although Comcast of Potomac and the Credit Protection Agency "failed to verify [the] disputed claim," they nevertheless pursued collection actions, Compl. ¶ 15. He asserts, to this end, that they "furnished a derogatory account to Equifax, a credit reporting agency." Compl. ¶ 16. As a result, Tall contends that he was unable to obtain a loan "to pay for the medical treatment of a family member," had his credit limit reduced, and "was also requested to pay a higher interest rate on his credit card accounts." Compl. ¶ 18.
Tall states that he has continued to "dispute[ the charges] with Equifax, Comcast and [the] Credit Protection Association at several instances," the latest in September 2009. Compl. ¶¶ 17, 19-20. According to
Under Federal Rule of Civil Procedure 12(b)(2), plaintiffs bear the burden of establishing a court's personal jurisdiction over a defendant. "[P]laintiffs are not limited to evidence that meets the standards of admissibility required by the district court. Rather, they may rest their argument on their pleadings, bolstered by such affidavits and other written materials as they can otherwise obtain." Mwani v. bin Laden, 417 F.3d 1, 8 (D.C.Cir.2005). Nevertheless, plaintiffs must allege "specific facts upon which personal jurisdiction may be based," Blumenthal v. Drudge, 992 F.Supp. 44, 53 (D.D.C.1998), and they cannot rely on conclusory allegations, see Elemary v. Philipp Holzmann A.G., 533 F.Supp.2d 116, 121 (D.D.C.2008).
The Court may exercise personal jurisdiction over a non-resident defendant, such as Comcast of Potomac, either by finding general jurisdiction over the party, or by finding specific jurisdiction based on "acts of a defendant that touch and concern the forum." Steinberg v. Int'l Criminal Police Org., 672 F.2d 927, 928 (D.C.Cir.1981); accord Kopff v. Battaglia, 425 F.Supp.2d 76, 81 (D.D.C.2006). Here, Tall contends only that this Court has specific jurisdiction over Comcast of Potomac.
To establish specific jurisdiction over a non-resident defendant, Tall must plead facts that (1) bring the case within the scope of the District of Columbia's long-arm statute, D.C.Code § 13-423, and (2) satisfy the constitutional requirements of due process. See GTE New Media Servs. Inc. v. Bell South Corp., 199 F.3d 1343, 1347 (D.C.Cir.2000); United States v. Ferrara, 54 F.3d 825, 828 (D.C.Cir.1995). The District's long-arm statute states that courts may exercise jurisdiction over any person who, acting directly or through an agent, engages in the following conduct:
D.C.Code § 13-423(a)(1)-(4). Tall's causes of action must "aris[e] from" the acts conferring jurisdiction over the defendant. See D.C.Code. § 13-423(b); Jackson v. Loews Wash. Cinemas, Inc., 944 A.2d 1088, 1092 (D.C.2008).
Tall alleges that Comcast of Potomac acted in the District of Columbia for purposes of section 13-423(a)(4) in five ways: by "(1) maintaining an internet presence through the websites <comcast.com> and <comcast.net>; (2) engaging in federal regulatory proceedings; (3) retaining District of Columbia counsel; (4) targeting District of Columbia residents with advertisements through the websites <superpages.com> and <comcast.com>; and (5) acting through agents that themselves act in the District." Id. at 3-4.
Nevertheless, Tall sought jurisdictional discovery to substantiate his allegation that Comcast of Potomac acts in the District through several entities with which it does business: the entity that operates Comcast's websites—which Comcast of Potomac has now identified as Comcast Cable Communications Management, LLC ("Comcast Management")— Equifax, and the Credit Protection Association. Although "[o]rdinarily[ ] a defendant corporation's contacts with a forum may not be attributed . . . to other parties," an exception exists where the other party is an alter ego or agent of the defendant. Shapiro, Lifschitz & Schram, 90 F.Supp.2d at 22 (citation omitted); see also D.C.Code § 13-423(a) ("court may exercise personal jurisdiction over a person[ ] who acts directly or by an agent").
The parties did not consider Comcast of Potomac's relationship with Comcast Management, Equifax, and the Credit Protection Association in briefing Comcast of Potomac's motion to dismiss. Accordingly, the Court gave them an opportunity to answer several questions regarding those relationships, reasoning that the parties' responses could obviate the need for jurisdictional discovery. See June 17, 2010 Order at 5. Comcast of Potomac responded by filing a declaration from Mary C. Kane, senior counsel for Comcast of Potomac's parent company. See Decl. of Mary C. Kane ("Kane Decl.") [Docket Entry 20], at 1. Tall filed an "opposition" to the Kane declaration, alleging that "defendant omitted to furnish relevant information in their response to the Court's well calibrated requests." Pl.'s Response to Third Kane Aff. ("Pl.'s Response") [Docket Entry 21],
To establish that Comcast Management is an alter ego of Comcast of Potomac, Tall must show "`by affirmative evidence' that there is not only `unity of ownership and interest' between the two corporations, but also `use of the corporate form to perpetrate fraud or wrong.'" Jackson, 944 A.2d at 1095 (quoting Vuitch v. Furr, 482 A.2d 811, 815 (D.C.1984)); accord Shapiro, Lifschitz & Schram, 90 F.Supp.2d at 23 ("(1) is there such unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist?; and (2) if the acts are treated as those of the corporation alone, will an inequitable result follow?"). Relevant factors include "whether corporate formalities have been disregarded, and whether there has occurred an intermingling of corporate and personal funds, staff, property." Vuitch, 482 A.2d at 816; see also id. ("Unity of interest and ownership can also be demonstrated by showing domination and control of a corporation, as in a parent-subsidiary relationship or in a closely held corporation.").
Here, there is no evidence of a "unity of ownership and interest" between Comcast Management and Comcast of Potomac. Neither owns any part of the other entity. See Kane Decl. at 2. Moreover, "[t]he staff and funding of Comcast of Potomac are utilized for the business of providing and supporting cable service and other services to subscribers in Montgomery County, Maryland and Arlington and Alexandria, Virginia"—"[n]o other Comcast entity shares that business purpose." Id. And only Comcast Management, as the entity that operates the Comcast websites, "is responsible for inputting and maintaining all of the content on the website[s]." Id. "The only information that Comcast of Potomac provides for the website is the particular channel lineups and pricing information that Comcast of Potomac offers in its local service areas." Id. at 4. That Comcast of Potomac and Comcast Management may provide related services does not demonstrate a unity of ownership and interest. See Jackson, 944 A.2d at 1096. Nor is there evidence that Comcast Management and Comcast of Potomac disregard corporate formalities. Comcast of Potomac does not "share staff or property" with Comcast Management, and "each entity has separate budgets and separate funds." Kane Decl. at 2. The evidence does not show, for example, that either entity commingles its funds and assets with the other entity's funds and asserts, or diverts the other entity's funds for its own uses. See Shapiro, Lifschitz & Schram, 90 F.Supp.2d at 23 (citing Labadie Coal Co. v. Black, 672 F.2d 92, 97 (D.C.Cir.1982)).
To be sure, Comcast of Potomac indicates that thirty-three of its officers also serve as officers of Comcast Management. See Kane Decl. at 2. But the mere fact that the entities share officers is insufficient, by itself, to demonstrate that Comcast of Potomac and Comcast Management are alter egos. See Diamond Chem. Co., Inc. v. Atofina Chems., Inc., 268 F.Supp.2d 1, 9 (D.D.C.2003) ("The Supreme Court has recognized that `it is entirely appropriate for directors of a parent corporation to serve as directors of its subsidiary, and that fact alone may not serve to expose the parent corporation to liability for its subsidiary acts.'" (quoting United States v. Bestfoods, 524 U.S. 51, 69, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998))).
Accordingly, the evidence demonstrates that there is no unity of ownership and
"`[A]n agency relationship results when one person authorizes another to act on his [or her] behalf subject to his [or her] control, and the other consents to do so.'" Henderson v. Charles E. Smith Mgmt., Inc., 567 A.2d 59, 62 (D.C.1989) (quoting Smith v. Jenkins, 452 A.2d 333, 335 (D.C.1982)) (second and third alterations in Smith). In other words, "the court must look for evidence of the parties' consent to establish a principal-agent relationship," and "for evidence that the activities of the agent are subject to the principal's control." Id. "Relevant factors `include (1) the selection and engagement of the servant, (2) the payment of wages, (3) the power to discharge, (4) the power to control the servant's conduct, (5) and whether the work is part of the regular business of the employer.'" Jackson, 944 A.2d at 1097 (quoting Judah v. Reiner, 744 A.2d 1037, 1040 (D.C.2000)).
Here, the undisputed evidence in the record demonstrates that Comcast of Potomac has no ability to control Comcast Management, especially with regard to advertising decisions. Comcast Management "controls the purposes for which <comcast.com> is used, as well as the content, format, style, and overall design of the website." Kane Decl. at 1-2. And "[t]he only information that Comcast of Potomac provides for the website is the particular channel lineups and pricing information that Comcast of Potomac offers in its local service areas." Id. at 4. Moreover, it is Comcast Management that "create[s] national advertising campaigns." Id. "[L]ocal operating entities such as Comcast of Potomac [may only decide] whether or not to participate in those campaigns." Id. In other words, Comcast of Potomac is a passive participant in Comcast Management's advertising decisions. Although Comcast of Potomac and Comcast Management appear to be "engaged in a common enterprise," mutuality of interest "does not establish that either was an agent of the other." Jackson, 944 A.2d at 1098.
Without any evidence that Comcast of Potomac and Comcast Management are
Tall also suggests that Equifax and the Credit Protection Association act in the District of Columbia as Comcast of Potomac's agents, and therefore provide the persistent course of conduct necessary for the Court to exercise personal jurisdiction over Comcast of Potomac pursuant to section 13-423(a)(4). This is incorrect. The undisputed evidence in the record demonstrates that both Equifax and the Credit Protection Association "ha[ve] authority over, and responsibility, for [their] actions in the District of Columbia." Kane Decl. at 7, 8; see also id. at 6, 7 (Equifax and the Credit Protection Association are "national vendor[s] that provide[ ] services to Comcast Cable Communications Management LLC affiliates, including Comcast of the Potomac").
For the foregoing reasons, the Court will grant Comcast of Potomac's motion to dismiss for lack of personal jurisdiction, and will deny Tall's request for jurisdictional discovery.
