Zavian v. Foudy

⁶⁹¹ WENNEE, Judge. This appeal arises from a Motion to Dismiss granted by the Circuit Court for Baltimore County in favor of appellees, Julie Foudy, Kristine Lilly, and Carla Overbeck. Appellant is Ellen M. Zavian. On appeal, appellant presents us with the following question: Did the trial court err in finding a lack of personal jurisdiction over the Appellees, when sufficient Maryland contacts existed?

We will answer “no,” and affirm the judgment of the circuit court. Facts Appellees are members of the United States Women’s National Soccer Team (“the Team”). Appellant is a Maryland attorney. She practices law from an office in Columbia, Maryland.

In 1995, Ms. Foudy contacted appellant on behalf of the Team, seeking appellant’s assistance in a labor dispute involving the United States Soccer Federation. 1 After the dispute was resolved, appellant continued to assist the Team with legal matters. Later, appellees individually contacted appellant. Each proposed that she act as their agent. As a result, appellant entered into personal management agreements with Foudy, Lilly, and Overbeck.

Each agreement provided for appellant to act as exclusive agent for each appellee “to negotiate a footwear/apparel agreement with a reputable company that has maintained a commitment to the soccer industry.” As a result, appellant negotiated an endorsement contract for each appellee. These negotiations were conducted by appellant from her Maryland law office. None of the appellees resided in Maryland, and the Team is headquartered in Florida. Ms. Foudy resides in California; Ms. Lilly resides in Connecticut; and ⁶⁹² Ms. Overbeck resides in North Carolina.

None of the appel-lees came to Maryland to meet with appellant. Instead, the management agreements were prepared in appellant’s Maryland law office, and were then mailed or faxed to each appellee for approval and execution. In fact, all contacts among the parties were by fax, telephone, or mail. Moreover, appellant’s negotiations with the footwear/apparel companies were also by fax, telephone, or mail.

Ms. Foudy entered into a footwear/apparel agreement with Reebok, International, Inc. Reebok is headquartered in Massachusetts. Ms. Overbeck entered into a similar agreement with FILA USA, Inc. FILA is a Delaware corporation with its principal place of business in Maryland. Ms. Lilly also entered into a similar agreement with Adidas. Adidas is also a Delaware Corporation.

Oregon is Adidas’ principal place of business. Appellant mailed invoices for her services to California, Connecticut and North Carolina, and each invoice was paid by mail. In July 1997, appellant decided to provide legal services for the Team only. She informed each appellee of her decision by mail, thus terminating each individual management agreement.

Appellant subsequently mailed each appellee an invoice to cover the balance of services, and each appellee declined to pay. In May 1998, appellant filed a complaint in the Circuit Court for Baltimore County, charging the appellees with breach of contract and seeking damages. Each appellee responded with a Motion to Dismiss on the grounds of lack of personal jurisdiction. After the motions were granted, appellant noted this appeal.

Discussion Appellant complains the circuit court committed reversible error when it granted appellees’ motions to dismiss. We do not agree. “The burden of alleging and proving the existence of a factual basis for the exercise of personal jurisdiction, once the ⁶⁹³ issue has been raised, is upon the [appellant].” McKown v. Criser’s Sales and Service, 48 Md.App. 739, 747 , 430 A.2d 91 (1981). Our appellate courts have often been called upon to determine the reach of Maryland’s long-arm statute: Md.Code Ann. (1974, 1998 RepLVol., 1999 Cumm. Supp), § 6-103 of the Cts. & Jud.

Proc. Article (CJP). Here, appellant invokes CJP § 6-103(b)(1) in support of her claim that the Circuit Court for Baltimore County may exercise personal jurisdiction over the nonresident appellees. CJP Section 6-103(b)(l) provides: (b) In general. — A court may exercise personal jurisdiction over a person, who directly or by an agent: (1) Transacts any business or performs any character of work or service in the State; In appellant’s view, the court may exercise personal jurisdiction over the nonresident appellees, because appellant transacted and performed extensive business, work, and services in Maryland for each of them.

We are not aware of any Maryland case involving the exercise of personal jurisdiction over a nonresident defendant due to a plaintiffs agency relationship with a non-resident defendant. Thus, we believe this to be a case of first impression. Appellant invites us to accept her Maryland activities on behalf of the nonresident appellees as grounds for Maryland to exercise personal jurisdiction over them. We shall decline appellant’s invitation.

I. In McGann v. Wilson, 117 Md.App. 595, 602 , 701 A.2d 873 (1997), we said: When a Maryland court determines whether it may exercise personal jurisdiction over a nonresident defendant, it must engage in a two-prong analysis. First it must determine whether jurisdiction is established under Maryland’s long-arm statute and, if so, then it must determine whether the exercise of jurisdiction comports with the Fourteenth Amendment Due Process Clause. ⁶⁹⁴ See also Bahn v. Chicago Motor Club Ins. Co., 98 Md.App. 559 , 634 A.2d 63 (1993). “The purpose of the Maryland long-arm statute was to extend the scope of jurisdiction over nonresident defendants to the limits of the Fourteenth Amendments’s Due Process Clause as declared by the United States Supreme Court.” McGann, 117 Md.App. at 601 , 701 A.2d 873 (citations omitted.) Hence, the reach of the Maryland long-arm statute depends upon whether its scope of jurisdiction comports with the Fourteenth Amendment due process clause. When called upon to determine whether Maryland may exercise personal jurisdiction over a nonresident defendant, we must determine the extent of the Fourteenth Amendment’s due process clause.

In doing so, we must determine whether we have general or specific jurisdiction or neither. “General jurisdiction exists where a defendant maintains continuous and systematic contacts with the forum, which constitute doing business in the forum.” McGann, 117 Md.App. at 602 , 701 A.2d 873 . Specific jurisdiction exists where “the cause of action arises out of the conduct which constitutes the contacts” with the forum state. Camelback Ski Corp. v. Behning, 312 Md. 330, 338 , 539 A.2d 1107 (1988). We are here faced with appellant’s claims of breach of contract by the nonresident appellees.

Because the nonresident appellees have not had “continuous and systematic” contacts with Maryland, general jurisdiction is not involved. The United States Supreme Court has described due process in International Shoe Co. v. Washington, 326 U.S. 310 , 66 S.Ct. 154 , 90 L.Ed. 95 (1945); McGee v. International Life Ins. Co., 355 U.S. 220 , 78 S.Ct. 199 , 2 L.Ed.2d 223 (1957); and Hanson v. Denckla, 357 U.S. 235 , 78 S.Ct. 1228 , 2 L.Ed.2d 1283 (1958). In International Shoe Co. v. Washington, supra, 326 U.S. at 316 , 66 S.Ct. 154 , the Supreme Court said: ... due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does ⁶⁹⁵ not offend “traditional notions of fair play and substantial justice.”(citation omitted.) In Hanson v. Denckla, supra, 857 U.S. at 253, 78 S.Ct. 1228 , the Supreme Court said: The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State.

The application of that rule will vary with the quality and nature of the defendant’s activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. McGee v. International Life Ins. Co., supra, involved an action brought in California by the beneficiary of an insurance policy. Although the insured and the beneficiary had resided in California, the defendant was a Texas company, an assignee of the initial insurer.

McGee, 355 U.S. at 221 , 78 S.Ct. 199 . The sole contact of the defendant with California was a reinsurance contract mailed to the California insured. Id. “In finding that the Texas company had sufficient contacts with California such that the exercise of jurisdiction by the California courts did not violate due process, the Court held that even a single transaction in the forum may be sufficient for the exercise of jurisdiction, in a suit based on that transaction, where the transaction ‘had substantial connection with that State.’ ” Geelhoed v. Jensen, 277 Md. 220, 228 , 352 A.2d 818 (1976) (quoting McGee v. International Life Ins. Co., 355 U.S. at 223 , 78 S.Ct. 199 ).

Appellant first contends that her activities in Maryland as agent for the appellees provides sufficient contacts with Maryland. Appellant also contends the appellees have had sufficient contacts with appellant in Maryland, apart from her activities as their agent. We shall examine each of appellant’s contentions.

II

Appellant first claims that the business efforts and services performed in Maryland as agent for the nonresident ⁶⁹⁶ appellees permits Maryland’s courts to exercise personal jurisdiction over them. According to appellant, “over one hundred telephone calls were made between appellant’s place of business and appellees as well as on behalf of the appellees to numerous nationwide footwear/apparel companies.” In addition to numerous telephone calls, multiple faxes, mailings, overnight packages and negotiations with footwear/apparel companies originated in Maryland, and constituted business efforts and services performed in Maryland for the nonresident appellees. We are not aware of, nor have we been referred by appellant to any Maryland cases addressing this issue. Several other jurisdictions have, however, addressed similar circumstances.

In Copeland v. Life Science Techs. Ltd., No. 97 Civ. 0456(SHS), 1997 U.S. Dist. LEXIS 18210 , 1997 WL 716915 (S.D.N.Y. Nov. 17, 1997), a federal district court in New York said that a nonresident defendant who had placed but a single telephone call to a New York resident was not subject to personal jurisdiction. The purpose of the telephone call to New York was to request the plaintiff to conduct services for the defendant in New York.

Id. While the plaintiff claimed this permitted New York to exercise personal jurisdiction over the nonresident defendant, the federal district court concluded: [T]hose services may not be attributed to the principal for the purpose of litigation by the agent against the principal. See Kulas v. Adachi, 1997 U.S. Dist. LEXIS 6868 , 1997 WL 256957 [³] (S.D.N.Y., May 16, 1997), at ⁸. “In a suit between an agent and his out-of-state principal, there is no jurisdiction over the principal where the plaintiff-agent ‘is relying on his own activities within the State, rather than on defendant’s independent activities.’ ” Metropolitan Air Serv.

Inc. v. Penberthy Aircraft Leasing Co., 648 F.Supp. 1153, 1157 (S.D.N.Y.1986) (quoting Haar v. Armendaris Corp., 40 A.D.2d 769, 770 , 337 N.Y.S.2d 285, 288 (1st Dep’t 1972), rev’d, 31 N.Y.2d 1040 , 342 N.Y.S.2d 70 , 294 N.E.2d 855 (1973) (adopting Appellate Division dissenting opinion)). ⁶⁹⁷ “ [A] plaintiff must point to acts by the defendant, independent of the plaintiff-agent’s acts, which are sufficient in themselves to confer jurisdiction.” Kulas at ⁸, 1997 WL 256957 at ³. Copeland, supra at ³-4, 1997 WL 716915 at ¹. In Emmet, Marvin & Martin v. Maybrook, Inc., No. 90