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Fleming v. ISCO Industries, Inc.

United States District Court, D. Connecticut

March 2, 2018

DOUGLAS FLEMING, Plaintiff,
v.
ISCO INDUSTRIES, INC., Defendant.

          RULING AND ORDER ON MOTION TO DISMISS

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE.

         Douglas Fleming (“Plaintiff”) filed a Complaint against ISCO Industries, Inc. (“Defendant”), in Connecticut Superior Court on March 17, 2017. Notice of Removal, Ex. A (“Underlying Compl.”), ECF No. 1-1. ISCO removed the case to this Court on April 19, 2017, Notice of Removal, ECF No. 1, and now moves to dismiss the Complaint for lack of standing, lack of personal jurisdiction, and improper venue, Mot. Dismiss, ECF No. 15.

         For the following reasons, ISCO's motion to dismiss is GRANTED.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Factual Allegations

         Mr. Fleming owns and operates Douglas P. Fleming, LLC (“DPF”), located in Chaplin, Connecticut. Underlying Compl. ¶ 1. ISCO is a Kentucky Corporation. Id. ¶ 2. Mr. Fleming claims that DPF assigned its interest in this cause of action to Mr. Fleming. Id. ¶ 3.

         Mr. Fleming claims that he and DPF secured a government contract through the National Park Service to install fire suppression systems at the stables and tennis courts in Rock Creek Park in Washington, D.C. Id. ¶ 4. To fulfill that contract, DPF hired ISCO to provide waterline and hydrant products for the project. Id. Mr. Fleming claims that ISCO entered into the contract with both Mr. Fleming and DPF, and that Mr. Fleming was the guarantor. Id.

         Mr. Fleming alleges that ISCO understood that the waterline and hydrant products would be used to fulfill a government contract, and that ISCO would be paid “when the Plaintiff and his business were paid by the National Park Service and upon acceptance of product.” Id. ¶ 7. Mr. Fleming also claims that “ISCO represented to the Plaintiff that it understood and would comply with Federal Acquisition Regulations (FARs).” Id. ¶ 8.[1] Furthermore, Mr. Fleming claims that ISCO agreed that, if the National Park Service terminated the contract for convenience, ISCO would comply with applicable FARs, but that when the National Park Service did terminate for convenience, “ISCO did not follow applicable FARs to reconcile accounts with the Plaintiff's business, provide testing and quality assurance data and reclaim unused inventory from the project for credit[.]” Id. ¶ 10.

         B. Procedural History

         Mr. Fleming filed the Underlying Complaint on March 17, 2017, in Connecticut Superior Court, claiming fraud, breach of contract, anticipatory repudiation, and tortious interference with a business expectancy. See generally Underlying Compl.

         On April 19, 2017, ISCO removed the case to this Court. Notice of Removal at 1. ISCO claimed that this Court has both federal-question and diversity jurisdiction over the matter. Id. at 2-5. ISCO also claimed that DPF “failed to pay ISCO at least $62, 351.07 for the materials provided” under the contract at issue, and argued that Mr. Fleming's lawsuit is an attempt “to avoid payment of at least $62, 351.07 to ISCO and unspecified compensatory damages, liquidated damages, and punitive damages exceeding $15, 000.00.” Notice of Removal ¶ 5. ISCO attached an Account Statement to its Notice of Removal, which lists the amounts that ISCO claims DPF owes ISCO. Notice of Removal, Ex. B (“Account Statement”).[2]

         Mr. Fleming moved to remand the case to state court, ECF No. 10, and this Court denied the motion, ECF No. 14.

         On July 17, 2017, ISCO filed a complaint in Kentucky, claiming that DPF breached its contract with ISCO, and seeking $69, 920.25 for the amount owed under the contract. Mot. Dismiss, Ex. 5 (“Kentucky Compl.”), ECF No. 15-6.

         On July 19, 2017, ISCO moved to dismiss the Complaint in this Court, claiming that Mr. Fleming lacks standing to bring the case, the Court lacks personal jurisdiction over ISCO, and venue is improper. Mot. Dismiss, ECF No. 15-1. Mr. Fleming filed an objection to the motion to dismiss on August 8, 2017. Obj. to Mot. Dismiss, ECF No. 22. ISCO filed a reply brief on September 1, 2017. ECF No. 29.

         Mr. Fleming also filed an amended motion for joinder, ECF No. 26, and ISCO moved to stay proceedings until the resolution of the motion to dismiss, ECF No. 31. The Court stayed all deadlines pending resolution of the motion to dismiss, including briefing on the motion for joinder. ECF No. 31.

         II. ...


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