IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

DELMARVA POLE BUILDING : SUPPLY , INC. , :
: Plaintiff , : C.A. No. K1 8 C

- 11

- 022 JJC

: In and for Kent County

v. :
: DAVIS RICHARDSON, :
: Defendant. :

MEMORANDUM OPINION AND ORDER

Submitted: May 7 , 2019 Decided: May 2 8 , 2019
Upon Defendant’s Motion to Dismiss: GRANTED

Nicole M. Faries , Esquire, Baird Mandalas Brockstedt, LLC , Wilmington , Delaware, Attorney for Plaintiff

.
Veronica O. Faust , Esquire, Morris James , LLP, Rehoboth Beach , Delaware, Attorney for Defendant.

Clark, J.2

Defendant Davis Richardson (hereinafter “Mr. Richardson”) is a Maryland
resident who moves to dismiss Plaintiff Delmarva Pole Building Supply, Inc.’s (hereinafter “Delmarva ’s ”) co mplaint pursuant to Superior Court Civil Rule 12(b)(2)
for l ack of personal jurisdiction. The record demonstrates that Mr. Richardson’s

co ntact with Delmarva in Delaware was limited to telephone calls and emails

. The parties met regarding the contract in Maryland, they executed the contract in Maryland, and performance by Delmarva occurred in Maryland. U nder the
circumstances of this case, the Court does not have personal jurisdiction o ver Mr.
Richardson . Accordingly, Delmarva’s motion to dismiss the matter must be
GRANTED

.

PROCEDURAL BACKGROUND, ARGUMENTS OF THE PARTIES,

AND FACTS OF RECORD
The facts of record are those alleged in the complaint and those referenced in
the documents and affida vits submitted by the parties. Mr. Richardson and Delmarva contracted for Delmarva to build a pole barn at Mr. Richardson’s property in Easton, Maryland. Mr. Richar dson is a resident of Maryla nd, and Delmarva is a Delaware corporation whose principal place of busi ness is in Wyoming, Delaware. All personal contact between the two parties occurred in Maryland, and the parties executed the contract in Maryland. Furthermore , Delmarva presented a Maryland business license number applicable to the Maryland construction job. After Delmarva constructed the building, Mr. Richardson allegedly breached the contract by ref using to pay the amount owed. Delmarva then sued Mr. Richardson in
Delaware for breac h of c ontract and unjust enrichment. Mr. Richardson next moved to dismiss the Delaware suit for lack of personal jurisdiction. In his motion to dismiss, Mr. Richardson argues that none of his alleged
actions fit within the criteria of Delaware’s Long

- Arm Statute, found at 10 Del. C. §3

3104 (hereinafter the “Statute”). He also argues that even if he engaged in an act enumerated in the Statute, his contacts with Delaware would not constitute a “substantial enough connection with this State to make exercise of jurisdiction over the defendant reasonable.” 1 Delmarva counters that Mr. Richardson’s solicitation of a Delaware company to complete the Maryland project fits several of the Statute’s criteria. It also argues that Mr. Richardson possessed the necess ary minimum contacts with Delaware to invoke jurisdiction . Namely, it argues that Delaware workers and materials were used when constructing the building, the building location in Maryland was only 23.2 miles from the Delaware state line, and Mr. Richards on caused them injury. Accordingly, Delmarva argues that subjecting Mr. Richardson to suit in Delaware would not violate notions of fair play and justice. In advancing their positions regarding jurisdiction, the parties stipulated that discovery on the i ssue of personal jurisdiction was unnecessary . However, both parties requested leave to submit affidavits to develop an evidentiary record on the
issue. T he parties also filed supplemental letter memoranda in support of their positions. 2

1 See Jackson v. McDowell , 1986 WL 6587, at *4 (Del. Super. May 30, 1986) ( discussing defendant’s direct conduct in Delaware, including meeting with two people to review direct mail material and coming to Wilmington on seven occasions to discuss campaign strategy , as “n ot of sufficient quality to justify the assumption of jurisdiction in this case.” ). 2 In a March 22, 2019 , Order, the Court notified the parties it intended to convert the motion to dismiss to one for summary judgment because the parties relied upon m atters outside the pleadings. Rather than evaluating the matter as one for summary judgment, the matter is appropriately evaluated as a motion to dismiss. See Tell v . Roman Catholic Bishops of Diocese of Allentown , 2010 WL 1691199, at *3 (Del. Super. Apr . 26, 2010) (recognizing that “[c]onsideration of affidavits on a motion to dismiss for lack of personal jurisdiction is now an accepted part of this state’s jurisprudence.”). Considering the motion to be one for summary judgment would inappropriately shi ft the burden to the defendant in a matter where the plaintiff bears the burden to establish jurisdiction. This c orrection of the record to reflect that the Court is evaluating the matter through the lens of a Rule 12(b)(2) motion does not unfairly prejud ice either party. The parties requested the Court’s decision regarding personal jurisdiction to be based upon the complaint, affidavits, and contractual documents submitted

.4

When vi ewed in t he light most favorable to Delmarva, the record
demonstrates that Mr. Richardson called Delmarva to inquire about a b uilding . The sales representative then travelled to Maryland and met him to discuss the potential project. By phone, Mr. Richardson then called the sales representative in Delaware and requested that she send him an architectural drawing for the building. Delmarva prepared it and emailed it to him. After several subsequent emails, Delmarva again sent a second sales representative to Maryland where the parties executed the contract. Delmarva prepared the buildin g materials in Delaware, drove them to Maryland, and then erected the building in Maryland. While Mr. Richardson never
travelled to Delaware in relation to th e contract , h e call ed and email ed Delmarva
several times. He also mailed checks to Delaware for payment. According to two
Delmarva sales representatives offering affidavits, Mr. Richardson emailed Delmarva nine to ten times, and called Delmarva three to four times. Thereafter, a ll contact between the parties during construction occurred in Maryland, and not
Delaware.

STANDARD APPLICABLE TO A RULE 12(B)(2) MOTION TO DISMISS
In Delaware, a plaintiff has no requirement to allege facts in the co mplaint to
establish pers onal jurisdiction

. 3 However, when person al jurisdiction is challenged
in a motion to dismiss, the plaintiff bears the burden of proof to establish a basis for long

- arm jurisdiction. 4 Since the plaintiff retains the evidentiary bu rden to prove his

3 Hart Holding Co., Inc. v. Drexel Burnham Lambert Inc ., 593 A.2d 535 , 538 (Del . Ch. 1991) ( citing 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1363 (3d ed. 1998) )

. 4 Jackson , 1986 WL 6587, at *1.5

or her case, the plaintiff may ordinarily undertake reasonable discovery to aid such proof. 5 A trial court has discretion to shape the procedure necessary to resolve a Rule 12(b)(2) motion to dismiss

. 6 Since the central question i s one of fact, a trial court may hold a preliminary hearing and determine the necessary facts, or it may decide
the matter on affidavits alone. 7 The trial court also has the discretion to de fer the decision until the parties complete focused discovery or full discovery. 8 Only whe n the facts alleged in the complaint clearly demonstrate that claimed personal jurisdiction over a defendant is frivolous , may the trial court preclude reasonable discovery in aid of establishing personal jurisdiction. 9
To determi ne whether the Court has jurisdiction over a defendant, it employs

a two

- prong test . F irst, it must consider whether the Statute confers jurisdiction and authorizes service of process on the defendant. 10 Second, if the Court determines that the defendant’s conduct falls within one of the enumerated categories, 11 the Court must evaluate whether the plaintiff demonstrates that subjecting the defendant to jurisdiction in Delaware do es not violate the Due Pro cess C lause of the Fourteenth
Amendment. 12 Compliance with Due Process is satisfied via “the so

- called minimum contacts requirement,” because when a non

- resident defendant has sufficient minimum contacts with Delaware, that non

- resident “should reasonably anticipate being required to defend [himself or herself] in Delaware’s courts.” 13

5 Hart , 593 A.2d at 539. 6 Id. 7 Id. 8 Id. 9 Id. 10 Eagle Force Holdings, LLC v. Campbell , 187 A.3d 1209, 1228 (Del. 2018). 11 Jackson , 1986 WL 6587, at *1. 12 Eagle Force Holdings , 187 A.3d at 1228

. 13 Id

. (internal citations omitted).6 ANALYSIS Delmarva argues that Mr. Richardson’s act of soliciting it to perform work in Maryland was sufficient to subject him to personal jurisdiction in Delaware.
Delmarva argues that Mr. Richardson’s actions fall within three categories in the Statute. Namely, it alleges that he “ (1) [t]ransact[ed] any business. . . in the State ,”

. . . (3) [c]ause[d] tortious injury in the State by an act or omission in this State”

. . . [and] (4) [c]ause[d] tortious injury in the State or outside of the State by an act or omission outside of the State [because he] solicit [ed] business. . . in the State.” 14 To satisfy the Statute’s requirements, only one of these qualifying actions is nece ssary. As a threshold matter, Delmarva ’s complaint includes a breach of contract
claim and an unjust enrichment claim

. Accordingly, the only relevant prong of the Statute, is the one that enabl es suit and service of process if Mr. Rich ardson
transacted “any business . . . in the State

. ” Paragraph (c) (3) and (c) (4) of the Statute,
describe d above, apply to persons causing “tortious injury.” Delmarva does not raise
a tort cla im

. Consequently , t he focus here is whether Mr. Richardson’s calls and emails from Maryland to Delaware regarding a single construction project demonstrate s that he “transacted any business . . . in the State.” 15 T he parties signed the contract in Maryland, Mr. Richardson did not tra vel to Delaware , and Delmarva built the pole
barn in Easton, Maryland. As a consequence, there are no material facts of record
other than Mr. Richardson ’ s calls and emails that support personal jurisdiction over
Mr. Richardson. Delmarva relies primarily on two c ases in support of its argument. Both have
Delaware c ontacts greater than those present in the case at hand and are distinguishable

. First, Delmarva argues that this case is similar to Mid

- Atlantic

14 10 Del. C. § 3104 (c)

. 15 See 10 Del. C. § 3104(c)(1).7

Machine & Fabric v. Chesapeake Shipbuilding, Inc

. , where the Superior Court found a defendant to be subject to Delaware personal jurisdiction. 16 In that decision, the Superior Court examined whether a Connecticut defendant that solicited business from a Delaware corporation to perform work in Maryland, con ferred jurisdiction
on Delaware courts. 17 As is relevant in the present case, the c ourt focused on
whether the d efendant’s actions amounted to “transacting any business” in
Delaware. 18 Similarly to the case at hand, the Connecticut defendant had no place

o f business in Delaware, the negotiation and execution of the contract occurred in Maryland, and all contracted

- for operations were completed in Maryland. 19 Unlike the case at hand, however, (1) the Connecticut defendant’s representatives personally appeare d in the plaintiff’s Delaware office to prese nt its plans and specifications, and (2) t he approval to commence the work also took place in the

p laintiff’s Delaware office. 20 Because the situs of execution of the contract was in
Delaware , the Court found th at it had jurisdiction over the out

- of

- state defendant pursuant to 10 Del. C. § 3104(c)(1). 21 In contrast, Mr. Richard son never appeared
in Delaware and d id not execute a contract in Delaware, which makes the Mid

Atlantic decision distinguishable. Second, Delmarva relies on the District of Delaware case , Wilmington Supply Co. v. Worth Plumbing & Heating, Inc

. 22 There , a Delaware corporation sued a Pennsylvania corporation for unpaid plumbing and heating supplies. 23 There, unlike the single transacti on at issue in this case, the out

- of

- state defendant created an open

16 492 A.2d 250 (Del. Super. 1985). 17 Mid

- Atlantic , 492 A.2d at 252. 18 See 10 Del. C. § 3104(c)(1) ; Mid

- Atlantic , 492 A.2d at 253 (“Thus, if jurisdiction lies under § 3104, it must be pursuant to paragraph (1) of subsection (c) .”). 19 Mid

- Atlantic , 492 A.2d at 252

. 20 Id. 21 Id. at 256. 22 505 F.Supp. 777 (D. Del. 1980). 23 Wilmington Supply , 505 F. Supp. at 778.8

running credit account and it telephonically placed more than five hundred orders for plumbing and heating supplies with the Delaware c ompany

. 24 The supplie s were delivered to defendant at vari ous construction sites in Pennsylvania, but the defendant visited Delaware on multiple occasions to either pick up or return some of the supplies to the plaintiff’s location in Delaware. 25 As a result, the court found
that the defendant satisfied 1 0 Del C. § 3104(c) (1) ’ s criteria , because it transacted
business in Delaware. 26 Unlike the case at hand, placing more than five hundred orders with a Delaware company and repeated physical visits to the Delaware plaintiff’s place of business constituted transac ting business in Delaware

. The facts bearing upon jurisdiction in this case align more closely with two
cases that Mr. Richardson cites . First, in Fischer v. Hilton , 27 the Delaware District Court held that it did not have personal jurisdiction over an out

- of

- stat e defendant who sold a faulty truck to a Delaware plaintiff. 28 There, a Delaware resident approached the defendant at his Ohio business and offered to buy a used truck. 29 The parties executed the contract in Ohio , and the plaintiff accepted delivery of the
truck in Ohio. 30 Like in the case at hand, t he Ohio defendant called the plaintiff in
Delaware re garding the transaction. 31 Nevertheless, the court held that the Delaware Long

- Arm Statute does not apply to a contract executed and performed substantiall y out of state. 32 The court further held that “[a]lthough isolated phone calls arguably may be related to the constitutional due process question, . . . such phone calls do

24 Id. 25 Id. at 778

- 79

. 26 Id. at 781. 27 549 F.Supp

. 389 (D. Del. 1982). 28 Fis c her , 549 F.Supp

. at 393. 29 Id. at 390. 30 Id. 31 Id. 32 Id. at 391.9

not constitute a transacting of business within the State of Delaware for purposes of subsection (c)(1) [of the Long

- Arm Statute]

. ” 33
Second , in Blue Ball Properties, Inc. v. McClain , 34 the District of Delaware
likewise found no personal jurisdiction over an out

- of

- state defendant in a breach of
contract action. 35 In Blue Ball , the court held an evidentiary hearing to decide the
issue

. 36 In doing so, it emphasized the fact

- specific nature of the inquiry

. The re, the
sole contact that defendant had with Delaware was that he signed the contract in
Delaware. 37 The parties negotiated the c ontr act in Maryland and performance
occurred in Maryland

. 38 Here, unlike the facts relevant to the court’s decision in
Blue Ball , Mr. Richardson did not sign the contract in Delaware. In fact, t he
evidence of record does not establish that he has ever visited Delaware. T he Blue
Ball decision also supports a finding of lack of jurisdiction over Mr. Richardson.
The Court finds persuasive New York’s approach to interpreting their long

arm statute’s equivalent provision

. Two federal cases a pplying New York law
examine d contacts that were limited to telephone calls from outside the State of New
York into the State of New York. T h o se cases h e ld that such solicitation s alone w ere not sufficient to constitute the transacti on of business. First, the Southern District of New York in T yco Intern. Ltd. v. Walsh , 39 recognized that

[g]enerally, telephone contacts between a nondomiciliary defendant and a New York party are insufficient by themselves to co nfer jurisdiction under [N ew York’s equivalent provision to paragraph (c)(1) in Delaware’s Statute]. A nondomiciliary defendant will be subject to jurisdiction . . ., however, if the

33 Id. (emphasis added). 34 658 F.Supp. 1310 (D. Del. 1987). 35 Blue Ball , 658 F.Supp. at 1312. 36 Id. 37 Id. at 1316. 38 Id. 39 2003 WL 553580 (S.D.NY. Feb

. 2 7 , 2003).10 defendant uses these telephone communications to deliberately “project” himself into business trans actions occ urring within the State. . . In order for these telephone contacts to sustain jurisdiction , the defendant must do more than place an order or engage in business negotiations regarding a contract whose center of gravity is outside the state. Rather, he must use the “telephone link” as a means of projecting himself into the “local commerce” of the state. 40

In the Tyco case , a New Jersey defendant negotiated a deal w ith a New Y ork plaintiff, through multiple telephone calls. 41 All other circumstances relevant to jurisdiction involved activity outside New York. 42 The court, in dismissing the matter for lack of jurisdiction , did not find telephone calls alone sufficient to warrant a finding that the defendant had transacte d business within New York. 43 Similarly, the Second Circuit Court of Appeals decision in Fiedler v. First City National Bank of Houston , 44 recognized that telephone solicitations alone regarding a single contract ar e insufficient to confer jurisdiction under New York’s long

- arm statute. 45 I n that decision, the Second Circuit cited a string of New York

cases recognizing that “New York courts have consistently refused to sustain §302(a)(1) jurisdiction solely on the basis of defendant’s communication from another locale with a party in New York.” 46 In the case at hand, there is no meaningful difference between a telephone
solicitation regarding an isolated contract a n d an email solicitation regarding one

. Notwithstanding Mr. Richardson ’ s calls and emails in this case, the center of gravity of the Maryland construction job was in Maryland. Had Mr. Richardson engaged in

40 Tyco Intern. , 2003 WL 553580, a t *4

. 41 Id. at *1. 42 Id. 43 Id. at *4. 44 807 F.2d 315 (2d Cir. 1986). 45 Fiedler , 807 F.2d at 317

- 18. 46 Id. a t 318 (citations omitted)

.11

a course of dealing with Delmarva regarding multiple contracts, or had he physically
vi sited Delmarva’s Delaware facility , the result in this case may have be en different. Likewise, t he result may have been different had he not signed the contract in Maryland, or had he not limited his meetings with Delmarva representatives to meeting si tes in Maryland. Such circumstances , however, are not present. As a consequence, the C ourt does not find that Mr. Richardson transacted business in the
State of Delaware. Since Delmarva is unable to demonstrate that its suit meets the first p rong of the two

- p rong personal jurisdiction test, the Court need not address the second prong by examining w hether extending personal jurisdiction would
otherwise satisfy Due Process

. 47

CONCLUSION For the reasons discussed, Mr. Richardson’s motion to dismiss for lack of personal jurisdiction must be GRANTED . Because the merits of Delmarva ’ s claim s have not been addressed, thi s dismissal is without prejudice to Delmarva’s ability to refile the case in an appropriate court.
IT IS SO ORDERED

. /s/Jeffrey J Clark Judge
JJC:jb Via File & Serve Xpress

47 See Eagle Force Holdings , 187 A.3d at 1228.