United States District Court, D. Arizona
ORDER
Dominic W. Lanza United Slates District Judge
INTRODUCTION
Pending
before the Court are motions to dismiss, or, in the
alternative, transfer venue filed by Defendants Rite-Kem
Incorporated (“Rite-Kem”) and Mark C. Lovil
(“Lovil”) (together, “Defendants”).
(Docs. 12, 14.) Both Defendants contend the Court lacks
personal jurisdiction over them. For the following reasons,
the Court agrees and grants both motions to dismiss.
BACKGROUND
Plaintiff
Wegbreit Group LLC (“Wegbreit”) is a distributor
of “personal amenity items packaged in small sized
containers (i.e. mouthwash, toothpaste, shampoo,
antibacterial wipes, etc.) generally designed to meet the
needs of anyone who is away from home such as guests in the
hospitality industry, patients in the health care industry
and disaster victims.” (Doc. 1 ¶ 21.) Rite-Kem is
“a vendor of emergency supply kits to the General
Services Administration . . . which kits were to be provided
to the Federal Emergency Management Agency . . . .”
(Id. ¶ 22.)
The
complaint alleges that Rite-Kem failed to pay for certain
goods it received after submitting purchase orders to
Wegbreit. (Id. ¶¶ 28-31, 33.) The
complaint further alleges that, although Lovil,
Rite-Kem's president, agreed to be personally liable for
Rite-Kem's debts, he also has not paid for the goods.
(Id. ¶¶ 23-26, 32)
Wegbreit
and Defendants have submitted declarations/affidavits in
support of their personal jurisdiction arguments. Wegbreit
attached a declaration from Susan Wegbreit
(“Susan”), its vice president of sales, to its
response to Rite-Kem's motion (Doc. 17-1) and its
response to Lovil's motion (Doc. 20-1). Lovil filed an
affidavit in support of Rite-Kem's motion (Doc. 12-1) and
another in support of his own motion (Doc. 14-1). The
relevant facts from those declarations/affidavits are as
follows:
Rite-Kem
is a Mississippi corporation with its principal place of
business in Mississippi. (Doc. 12-1 ¶ 2; Doc. 14-1
¶ 3.) Lovil is also a Mississippi “resident
citizen.” (Doc. 14-1 ¶ 2.)
Wegbreit
is an Arizona LLC with its principal place of business and
headquarters in Arizona. (Doc. 17-1 ¶¶
3-4.)[1] Wegbreit's two employees both reside
in Arizona. (Id. ¶¶ 5, 27.)
Rite-Kem
is not licensed to do business in Arizona, does not maintain
an office in Arizona, and does not own any real estate in
Arizona. (Doc. 12-1 ¶¶ 4-6.) Furthermore, Rite-Kem
does not have an Arizona telephone number or statutory agent
and does not advertise or otherwise solicit business in
Arizona. (Id. ¶¶ 6-8.) Similarly, Lovil
also does not own any property in Arizona or have an Arizona
number. (Doc. 14-1 ¶¶ 6-7.)
On May
14, 2018, Lovil, on behalf of Rite-Kem, sent an email to
Susan stating that he “was given [her] contact
information as a possible source for various personal care
(hygiene) items.” (Doc. 17-1 at 3 ¶ 11, 8.)
The
next day, Lovil and Susan spoke by phone. (Id. at 3
¶ 13.) They also exchanged emails in which Susan
indicated Wegbreit's address was in Arizona and Lovil
requested pricing for certain products. (Id. at 3
¶ 13, 10-11.)
After
May 15, 2018, Rite-Kem and Wegbreit began exchanging
“serial and ongoing” emails and telephone calls.
(Id. ¶ 14.) Rite-Kem's calls and emails
were “directed from Mississippi to [Wegbreit] in
Arizona.” (Id.)
“As
a result of” these emails and calls, Rite-Kem and
Wegbreit entered into a Credit Application on or about July
2, 2018, which was “entered into and delivered . . . to
[Wegbreit] in Arizona.” (Id. ¶ 15.) This
Credit Application lists an Arizona address for Wegbreit.
(Doc. 1-2 at 2-3.) Lovil “electronically signed”
that form, as well as another form allowing Wegbreit to
obtain credit information about Rite-Kem from a bank in
Mississippi. (Doc. 12-1 ¶ 16.)
Susan
states in her declaration that Rite-Kem and Lovil
“jointly entered into” the Credit Application.
(Doc. 17-1 ¶ 15.) She further states that “Lovil
was ‘unconditionally' obligated to pay”
Rite-Kem's debts to Wegbreit. (Doc. 20-1 ¶ 18.) In
contrast, Lovil states that he executed the Credit
Application in his capacity as president of Rite-Kem,
“did not sign the Credit Application in [his]
individual capacity, ” and “did not personally
guarantee Rite-Kem's payment obligations to
Wegbreit.” (Doc. 14-1 ¶¶ 3-5.)[2]
Rite-Kem
emailed its purchase orders from its office in Mississippi to
Wegbreit in Arizona. (Doc. 12-1 ¶ 18; Doc. 17-1 ¶
17 [“All of [Rite-Kem's] Purchase Orders were
directed from Mississippi to [Wegbreit] in Arizona . . .
.”].) These purchase orders listed Wegbreit's
Arizona address. (Doc. 1-2 at 6-15.) After Rite-Kem would
receive a shipment, Wegbreit would email an invoice to
Rite-Kem seeking payment for the products included in the
shipment. (Doc. 12-1 ¶ 19.) Rite-Kem would mail the
resulting payment to Wegbreit's Arizona address.
(Id. ¶ 20.)
The
products from the purchase orders at issue were shipped from
Tennessee, Mississippi, and New York to Rite-Kem in
Mississippi. (Id. ¶¶ 23-26.)
Neither
Lovil nor any other Rite-Kem representative traveled to
Arizona for the purpose of transacting business with
Wegbreit. (Id. ¶ 28.)
ANALYSIS
I.
Moti ...