United States District Court, D. Connecticut
RULING AND ORDER ON MOTION TO DISMISS
A. BOLDEN UNITED STATES DISTRICT JUDGE.
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.
following reasons, ISCO's motion to dismiss is
FACTUAL AND PROCEDURAL BACKGROUND
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.
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.
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. 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.
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
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
Fleming moved to remand the case to state court, ECF No. 10,
and this Court denied the motion, ECF No. 14.
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.
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.
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.