Date Submitted: December 17, 2013.
Sean T. O'Kelly, Esq. and Ryan M. Ernst, Esq., O'Kelly Ernst & Bielli, LLC. Attorneys for Plaintiff.
C. Malcolm Cochran, IV, Esq. and Travis S. Hunter, Esq., Richards, Layton & Finger, P.A., Wilmington, Delaware 19801. Attorneys for Defendant.
Calvin L. Scott, Judge
Before the Court is Defendant Christian Kostan's ("Kostan") Motion to Dismiss for lack of personal jurisdiction or, in the alternative, forum non conveniens. The Court has reviewed the parties' submissions, including the affidavits of Kostan and his counsel, and heard oral argument. For the reasons that follow, the Court finds that it lacks jurisdiction over Kostan and, thus, the motion is GRANTED.
I. The Parties
Plaintiff Capital Investment Agency ("Capital") is a citizen of Great Britain and a broker of commercial loans. Kostan resides in Germany and entered into a contract on behalf of Standard Energy, LLC. Standard Energy, LLC, at all relevant times, was and continues to be a nonexistent Delaware entity. Standard Energy Holding, LLC, a relevant nonparty, is an existing Delaware limited liability corporation with a registered agent located at 435 N. DuPont Highway, Dover, Delaware, 19901 (the "Dover, Delaware Address.") Capital Funding Investment Trust Ltd. (the "Lender") is also a relevant nonparty.
II. The Underlying Facts
In November 2009, Kostan and Capital engaged in discussions regarding Capital's procurement of a loan for Standard Energy, LLC. The loan was to be used to fund Standard Energy, LLC's construction of asbestos recycling plants in Germany, Austria and Romania. On November 13, 2009, Kostan executed an Application for Loan and a Mandate and Commission Agreement (the "Agreement") on behalf of Standard Energy, LLC. The Agreement was between Capital and Standard Energy, LLC and the address provided for Standard Energy, LLC was the Dover, Delaware Address. The Agreement provided that Capital would procure a lender to loan $173, 042, 100 for the construction of the plants and required Standard Energy, LLC to pay a commission of three-percent of the construction loan balance for Capital's procurement of a lender, which was to be paid if and when a formal offer of advance was made by the lender.
When Capital procured the Lender, the Lender made a written formal offer of advance to Standard Energy, LLC. On December 14, 2009, Kostan signed a letter agreement (the "Letter Agreement") with the Lender on behalf of Standard Energy LLC. The Letter Agreement was addressed to Kostan at the Dover, Delaware Address and it contained a choice of law provision stating that the laws of England would apply. On April 12, 2010, Kostan terminated the agreements and demanded a return of the deposit. On April 19, 2010, Capital demanded payment of the commission. Due to its failure to receive payment, Capital filed two separate law suits, one on February 8, 2011 and this lawsuit on November 7, 2012 alleging Breach of Contract, Quantum Meruit/Quantum Valebant, Unjust Enrichment, and Detrimental Reliance.
III. The First Action
A. The Original Complaint
On February 8, 2011, Capital filed its first four-count complaint (the "Original Complaint") naming only Standard Energy, LLC, naming only Standard Energy, LLC as the defendant. Capital asserted that Standard Energy, LLC was a "limited liability company formed under the laws of the State of Delaware, having a principal place of business at [the Dover, Delaware Address]." Without mentioning Kostan, Capital alleged that Standard Energy, LLC failed to pay the commission that it was guaranteed under the Agreement. A writ was issued and the sheriff served ...