                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA
____________________________________
                                    )
RALLS CORPORATION,                  )
                                    )
                  Plaintiff,        )
                                    )
      v.                            )                Civil Action No. 13-0117 (ABJ)
                                    )
TERNA ENERGY USA HOLDING            )
CORPORATION,                        )
                                    )
                  Defendant.        )
____________________________________)


                                 MEMORANDUM OPINION


       Defendant Terna Energy USA Holding Corporation (“Terna”) moves to dismiss plaintiff

Ralls Corporation’s (“Ralls”) complaint for lack of personal jurisdiction, improper venue, and

lack of subject matter jurisdiction. 1 Upon consideration of the parties’ briefs, the record in this

case, and the applicable law, the Court will grant the motion to dismiss for lack of personal

jurisdiction and improper venue. It does not reach the question of subject matter jurisdiction.




1       Ralls filed its complaint and motion for temporary restraining order and preliminary
injunction on January 28, 2013. Compl. for Decl. and Inj. Relief (“Compl.”) [Dkt. # 1]; Mot. for
TRO and Prelim. Inj. (“Ralls’ Mot.”) [Dkt. # 4]. The court held a conference call with counsel
for the parties on January 29, 2013, in which Terna raised its concerns regarding jurisdiction and
venue. The Court requested briefs from the parties solely on those issues by 5:00 p.m. that day.
Pl.’s Br. on Juris. and Venue in Supp. of Mot. for TRO and Prelim. Inj. (“Ralls’ Br.”) [Dkt. # 5];
Mot. of Def. to Dismiss the Compl. for Lack of Pers. Juris., Improp. Venue, and Lack of Subject
Matter Juris. (“Terna’s Mot.”) [Dkt. # 7]; Mem. of Def. in Supp. of its Mot. to Dismiss.
(“Terna’s Br.”) [Dkt. # 8]; Decl. of Georgios Angeletos (“Angeletos Decl.”) [Dkt. # 9].
                                        BACKGROUND

       This dispute concerns Ralls’ purchase of wind farms located in Oregon from Terna. The

transaction was structured as a two-tier transaction involving four entities:        Terna, Ralls,

Intelligent Wind Energy, LLC (“IWE”), and Ralls Wind Farm, LLC. Decl. of Jialiang Wu, Ex.

B. to Ralls’ Mot. (“Wu Decl.”) ¶ 6–7. Terna is a Delaware corporation with its principal place of

business in California and is a subsidiary of Terna Energy SA, a publically traded company in

Greece. Angeletos Decl. ¶ 3. Terna has offices in California but maintains no offices, facilities,

employees or other business-related infrastructure in the District of Columbia, nor has it engaged

in any business transactions in the District. Id. ¶¶ 4–8. Ralls is a Delaware corporation with its

principal place of business in Georgia. Wu Decl. ¶ 3.

       On February 28, 2012, the four entities to the transaction entered into a Master Wind

Projects Memberships Interests Purchase Agreement (“MIPSA”), in which Ralls agreed to

purchase the Oregon wind farms for $6 million. Angeletos Decl. ¶¶ 9–10. Under the MIPSA,

the final payment of $4.2 million of the purchase price was due on December 21, 2012. Id. ¶ 10.

On February 28, 2012, the entities also entered into Guarantee Agreements in which they

guaranteed the obligations of IWE under the MIPSA. Id. ¶ 12. Finally, on March 16, 2012, the

parties entered into Security Agreements in which IWE, Ralls, and Ralls Wind Farm granted to

Terna a security interest in assets owned by Ralls Wind Farm as collateral for the transaction. Id.

¶ 14. These assets are located in Ralls, Texas. Wu. Decl. ¶ 11. The parties negotiated their

transaction outside the District of Columbia. Angeletos Decl. ¶ 15.

       Both the MIPSA and the Guarantee Agreements contain forum selection clauses that

identify New York, New York as the jurisdiction in which disputes concerning these agreements

would be resolved. MIPSA, Ex. C to Ralls’ Mot. at § 8.4 (d); Guarantee Agreements, Ex. D to

                                                2
Ralls’ Mot. at § 11, Ex. F to Rall’s Mot. at § 11. The Security Agreements, which secure “all

payment and performance obligations of the Purchaser now or hereafter existing under the

MIPSA,” do not contain a forum selection clause, though they expressly reference the MIPSA

and the Guarantee Agreement. Security Agreements, Ex. F to Ralls’ Mot. at 4, Ex. G to Ralls’

Mot. at 4, Ex. H to Ralls’ Mot. at 4.

       In June of 2012, Ralls informed Terna that Ralls had been contacted by the Committee on

Foreign Investment in the United States (“CFIUS”) regarding Ralls’ purchase of the Oregon

wind farms. Angeletos Decl. ¶ 17. In response to the inquiry from CFIUS, Ralls and Terna

submitted a voluntary notice to CFIUS about the wind farm transaction on June 28, 2012. Id. ¶

17; Ex. J to Ralls’ Mot. On September 28, 2012, the President of the United States entered an

“Order Regarding the Acquisition of Four U.S. Wind Farm Project Companies by Ralls

Corporation.” Ex. N to Ralls’ Mot. The President’s Order stated that the transaction between

Ralls and Terna “is hereby prohibited” and ordered Ralls to “divest all interests” in the Oregon

wind farms within 90 days of the order. 2 Id. at 1–2.

       On October 2, 2012, Ralls informed Terna of the President’s order, asserting that as a

result of the order, the parties’ transaction was void ab initio. Compl. ¶ 43; Ex. O to Ralls’ Mot.

Ralls stated that given this, ownership of the Oregon wind farms remained with Terna, and Ralls

demanded that Terna repay the money it had paid so far under the MIPSA. Id. On December

24, 2012, Terna notified Ralls that it was in default for failing to make the final installment

payment due on December 21, 2012, stating that if Ralls did not make the payment within 14

days, it would exercise its rights under the parties’ agreements by selling the collateral that Ralls

had provided to Terna. Compl. ¶ 48; Ex. V of Ralls’ Mot. Terna rejected Ralls’ position that


2     Ralls has filed suit challenging the President’s Order as unconstitutional. Ralls
Corporation v. Obama, Case No. 1:12-cv-01513-ABJ. That case is pending before this Court.
                                                 3
their transaction was void ab initio and, on January 17, 2013, notified Ralls that it would hold a

public sale of the collateral pledged under the Security Agreements. Id. ¶¶ 51–52; Ex. AA to

Ralls’ Mot. On January 18, 2013, Terna began the process of advertising the collateral for sale.

Angeletos Decl. ¶ 22. According to Ralls, this advertising included advertisements in the Wall

Street Journal. Ralls’ Br. at 5. The public sale is scheduled for February 7, 2013. Ralls’ Mot.

at 1.

        On January 28, 2013, Ralls filed its complaint and motion for temporary restraining order

and preliminary injunction, seeking to halt the public sale. On January 29, 2013, Terna filed its

motion to dismiss for lack of personal jurisdiction, improper venue, and lack of subject matter

jurisdiction.


                                           ANALYSIS

I.      Personal Jurisdiction

        The plaintiff bears the burden of establishing personal jurisdiction over each defendant.

Crane v. N.Y. Zoological Soc’y, 894 F.2d 454, 456 (D.C. Cir. 1990). To survive a motion to

dismiss for lack of personal jurisdiction, the “plaintiff must make a prima facie showing of the

pertinent jurisdictional facts.” First Chi. Int’l v. United Exch. Co., 836 F.2d 1375, 1378 (D.C.

Cir. 1988). To establish that personal jurisdiction exists, the plaintiff must allege specific acts

connecting the defendant with the forum. In re Papst Licensing GMBH & Co. KG Litig., 590 F.

Supp. 2d 94, 97–98 (D.D.C. 2008), citing Second Amendment Found. v. U.S. Conference of

Mayors, 274 F.3d 521, 524 (D.C. Cir. 2001).           The plaintiff “cannot rely on conclusory

allegations” to establish personal jurisdiction. Atlantigas Corp. v. Nisource, Inc., 290 F. Supp.

2d 34, 42 (D.D.C. 2003).




                                                4
       “A court may consider material outside of the pleadings in ruling on a motion to dismiss

for lack of . . . personal jurisdiction[.]” Artis v. Greenspan, 223 F. Supp. 2d 149, 152 (D.D.C.

2002). However, “the plaintiff is not required to adduce evidence that meets the standards of

admissibility reserved for summary judgment and trial; rather, [the plaintiff] may rest [its]

arguments on the pleadings, ‘bolstered by such affidavits and other written materials as [it] can

otherwise obtain.’” Urban Inst. v. FINCON Servs., 681 F. Supp. 2d 41, 44 (D.D.C. 2010),

quoting Mwani v. bin Laden, 417 F.3d 1, 7 (D.C. Cir. 2005). Any factual discrepancies should

be resolved in favor of the plaintiff. Crane, 894 F.2d at 456. But the Court need not treat all

of the plaintiff’s jurisdictional allegations as true. United States v. Philip Morris Inc., 116 F.

Supp. 2d 116, 120 n.4 (D.D.C. 2000). “Instead, the court may receive and weigh affidavits

and any other relevant matter to assist it in determining the jurisdictional facts.” In re Papst

Licensing, 590 F. Supp. 2d at 98 (internal quotation marks omitted).

       For the Court to exercise personal jurisdiction over an entity, the entity must maintain

contacts with the District of Columbia sufficient to support either general jurisdiction or specific

jurisdiction under the District of Columbia’s long-arm statute, D.C. Code § 13-423 (2001). 3 See

Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414–16 (1984). “To establish

personal jurisdiction over a non-resident, a court must engage in a two-part inquiry . . . .” GTE

New Media Servs. Inc. v. BellSouth Corp., 199 F.3d. 1343, 1347 (D.C. Cir. 2000). It first

determines “whether jurisdiction over a party is proper under the applicable local long-arm

statute.” United States v. Ferrara, 54 F.3d. 825, 828 (D.C. Cir. 1995). If so, it examines

“whether [jurisdiction] accords with the demands of due process.” Id. The D.C. long-arm

statute provides personal jurisdiction over a person, “who acts directly or by an agent, as to a


3        Because Ralls does not argue that the Court has general jurisdiction over Terna, the Court
limits its analysis of this issue under specific jurisdiction.
                                                 5
claim for relief arising from” the person “transacting any business in the District of Columbia,”

among other reasons. D.C. Code § 13-423.

       Ralls argues that the Court has personal jurisdiction over Terna (a) because Terna

submitted a joint voluntary notice with Ralls to CFIUS regarding their wind farms transaction

and met with CFIUS officials about the notice, and (b) because it advertised the sale of the Ralls

collateral in national publications, including the Wall Street Journal. Ralls’ Br. at 4–5. Neither

argument prevails. First, as Ralls acknowledges, there is a government contacts exception to

personal jurisdiction. Ralls’ Br. at 6 n.3, citing Envtl. Research Int’l v. Lockwood Greene

Eng’rs, Inc., 355 A.2d 808 (D.C. 1976). Under the District of Columbia long-arm statute,

contact with a federal instrumentality located in the District will not give rise to personal

jurisdiction. Ferrara, 54 F.3d a t 831.

               To permit our local courts to assert personal jurisdiction over nonresidents
               whose sole contact with the District consists of dealing with a federal
               instrumentality not only would pose a threat to free public participation
               in government, but also would threaten to convert the District of
               Columbia into a national judicial forum.

Id., quoting Envtl. Research, 355 A.2d at 813. “The District of Columbia’s unique character as

the home of the federal government requires this exception in order to maintain unobstructed

access to the instrumentalities of the federal government.” Brunson v. Kalil & Co., Inc., 404

F. Supp. 2d 221, 235 (D.D.C. 2005).

       It is undisputed that Terna and Ralls made a joint submission to CFIUS about the

transaction and that representatives for the parties attended a meeting with CFIUS in the District.

Angeletos Decl. ¶¶ 16–17; Ralls’ Br. at 5. 4 But submitting documents to and meeting with

government officials in the District does not establish personal jurisdiction. See Brunson v.


4      In oral argument, counsel for Terna stated that an attorney for Terna attended the
meeting.
                                                6
Kalil & Co., 404 F. Supp. 2d at 235 (finding no personal jurisdiction based on an allegation

that the defendant “often comes to the District of Columbia for meetings in the course of

its business and to access filings with the Federal Communications Commissions and

possibly the Securities and Exchanges Commission relevant to its general business”);

Atlantigas Corp. v. Nisource, Inc., 290 F. Supp. 2d 34, 44–45 (D.D.C. 2003) (finding no

personal jurisdiction based on the defendant filing documents with FERC and maintaining

an office in the District of Columbia whose “sole function is to work with the FERC and

other regulatory agencies, and with members of Congress and congressional committees, in

connection with federal regulatory and legislative matters”).

       Recognizing the government contacts exception to personal jurisdiction exists, Ralls also

argues that the Court has personal jurisdiction over Terna because Terna advertised the sale of

Ralls’ collateral in national newspapers, including the Wall Street Journal. Ralls cites a D.C.

Court of Appeals case, Shoppers Food Warehouse v. Moreno, 746 A.2d 320 (D.C. 2000) in

support of its argument. But that case involved a nonresident grocery store company hailed into

the courts of the District after one it is customers, a D.C. resident, slipped and fell at one of the

defendant’s stores in Takoma Park, Maryland. The D.C. Court of Appeals found that the grocery

store had minimum contacts with the District, in part because it placed advertisements in the

Washington Post, “the District’s major circulation newspaper.” Id. at 331. The defendant’s

“extensive advertising activity in a major District of Columbia newspaper, purposefully solicited

District residents as customers for its nearby Maryland and Virginia stores and thus transacted

business in the District.” Id. at 322. That is not what happened here.

       The Wall Street Journal – although circulated nationwide and, indeed, globally – is not a

newspaper of the District of Columbia. Terna’s advertisement of the public sale in a national



                                                 7
newspaper is not an advertisement placed specifically in the forum’s local paper, but an

advertisement placed in a national newspaper that happens to circulate in the forum. Given this,

Terna’s advertisement did not purposefully solicit the interest of District residents or businesses,

as the defendant did in Shoppers Food Warehouse. Placing an advertisement in a national paper

that circulates in the District of Columbia does not target District residents or businesses and

does not give this Court personal jurisdiction over Terna. See Rundquist v. Vapiano SE, 798 F.

Supp. 2d 102, 117 (D.D.C. 2011) (holding that the court had no personal jurisdiction over a

German corporation because, even if it issued press releases in the District of Columbia, “it did

not actively advertise in the District of Columbia, either on its website or through local

newspapers, nor did the press releases specifically target District of Columbia residents as

opposed to potential customers located elsewhere in the United States and around the world.”).

       The Court holds Terna’s communications with CFIUS and its advertisement in

national newspapers to sell Ralls’ collateral does not establish the required minimum

contacts with the District to give this Court personal jurisdiction over Terna.

II.    Venue

       Terna also contends that venue in this Court is improper because the parties agreed that

the jurisdiction of disputes under their agreements would be in New York, New York. Terna’s

Br. at 12–14. The MIPSA and the Guarantee Agreements expressly state that New York would

be the jurisdiction for disputes under those agreements, and the Security Agreements, which

have no venue provision, nonetheless reference both the MIPSA and Guarantee Agreements.

Ralls argues that venue is proper in this jurisdiction regardless of the venue provisions in the

MIPSA and Guarantee Agreements because a substantial part of the events giving rise to its

claim occurred in the District and because the Security Agreements do not specify a particular

venue. Ralls’ Br. at 7–8.

                                                 8
       The D.C. Circuit has held that “forum-selection clauses are prima facie valid and

should be enforced unless enforcement is shown by the resisting party to be unreasonable under

the circumstances.” Commerce Consultants Int’l, Inc. v. Vetrerie Riunite, S.p.A., 867 F.2d 699,

(D.C. Cir. 1989) (internal punctuation omitted). Although the Security Agreements do not

themselves contain a forum selection clause like the MIPSA and Guarantee Agreements, the

express purpose of the Security Agreements is to secure “all payment and performance

obligations of the Purchaser now or hereafter existing under the MIPSA.” Ex. F to Ralls’ Mot. at

4; Ex. G to Ralls’ Mot. at 4; Ex. H to Ralls’ Mot. at 4. Without the MIPSA, there would be no

need for the Security Agreements. Further, Ralls’ own complaint seeks a declaration that the

entire transaction, not just the Security Agreements, is void ab initio. Compl. at 1. Accordingly,

it would be unreasonable to recognize the parties’ forum selection clauses in the MIPSA and the

Guarantee Agreements but ignore them in applying the Security Agreements, which only exist

because of and are integral to the transaction.

       Further, Ralls’ argum ent t hat a substantial part of the events giving rise to its claim

occurred in the District is not persuasive. The parties to this transaction are not located in the

District, they did not negotiate their transaction in the District, nor are any of the assets at issue

located in the District. It is true that the President, who is located in the District, issued an order

affecting their contract. But the issuance of that order does not constitute a substantial part of the

events giving rise to Ralls’ claim, which involves the rights and responsibilities of the parties

under their contracts. Accordingly, the Court holds that it is reasonable to apply the parties’

forum selection clauses to the Security Agreements and that venue in this jurisdiction is

improper.




                                                  9
                                          CONCLUSION

      For the foregoing reasons, Terna’s motion to dismiss will be GRANTED and the case

will be DISMISSED without prejudice.

      An Order shall issue with this opinion.

      Signed by Royce C. Lamberth, Chief Judge, on January 31, 2013.




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