Natural Products Association v. Behrman et al

REPLY to opposition to motion re MOTION to Dismiss and Alternative Motion to Quash Service of Process MOTION to Quash

D.D.C.August 15, 2016

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) NATURAL PRODUCTS ASSOCIATION, ) ) Plaintiff, ) ) v. ) Civil Action No.: 1:16-cv-00194-RJL ) CAROLYN BEHRMAN, et al. ) ) Defendants. ) ) REPLY MEMORANDUM IN SUPPORT OF DEFENDANTS’ RENEWED MOTION TO DISMISS AND ALTERNATIVE MOTION TO QUASH SERVICE OF PROCESS In their Opening Memorandum, Defendants raised several arguments in support of their Renewed Motion to Dismiss and Alternative Motion to Quash Service of Process. Plaintiff, in opposition, does not address two of Defendants’ arguments, including that Plaintiff’s purported service of certain Defendants on July 5 failed to comply with Rule 4 and that Plaintiff is not allowed to “restart” the litigation to obtain personal jurisdiction over the Defendants by “re-serving” an amended complaint or by other post-complaint conduct. See Fed. R. Civ. P. 4(c)&(m); Allen v. Russian Fed’n, 522 F. Supp. 2d 167, 193 (D.D.C. 2007) (holding that “[w]hile the filing of a ‘complaint’ commences a lawsuit, it does not follow that the filing of an ‘amended complaint’ creates a new lawsuit,” and, therefore, “personal jurisdiction contacts are determined at the time the initial complaint is filed, and that does not change even when an amended complaint is filed”). Plaintiff also does not provide any additional authority or argument regarding Defendants’ Case 1:16-cv-00194-RJL Document 56 Filed 08/15/16 Page 1 of 4 2 contention that the Amended Complaint should be dismissed under Rules 12(b)(2) and 12(b)(6). Plaintiff purports to address Defendants’ position that service should be quashed under the exception established in the K-Mart and Coyne cases-suggesting that those cases are distinguishable and apply only where the plaintiff invites settlement discussion. Plaintiff, however, cites no authority or basis for this limited interpretation. In addition, while Plaintiff purports to address Defendants’ argument based upon the fiduciary shield doctrine, Plaintiff fails to provide any additional authority or argument not already addressed by Defendants in their May 5, 2016 Reply Memorandum in support of their Motion to Dismiss the Amended Complaint. [Doc. No. 38]. Accordingly, Defendants’ Renewed Motion to Dismiss and Alternative Motion to Quash Service of Process should be granted for the reasons set forth in their Opening Memorandum and in their April 4, 2016 Memorandum and May 5, 2016 Reply Memorandum in support of their Motion to Dismiss the Amended Complaint. [Doc. Nos. 24-1, 38, and 54-1]. Case 1:16-cv-00194-RJL Document 56 Filed 08/15/16 Page 2 of 4 3 Dated: August 15, 2016 Respectfully submitted, /s/ Constantinos G. Panagopoulos Constantinos G. Panagopoulos (Bar No. 430932) Theodore R. Flo (Bar No. 979374) Ballard Spahr LLP 1909 K Street, NW, 12th Floor Washington, DC 20006-1157 Telephone: (202) 661-2202 Facsimile: (202) 661-2299 Email: cgp@ballardspahr.com Email: flot@ballardspahr.com and David R. Marshall (MN Bar No. 0184457) Leah C. Janus (MN Bar No. 0337365) Kyle W. Ubl (MN Bar No. 0395872) Fredrikson & Byron, P.A. 200 South Sixth Street, Suite 4000 Minneapolis, MN 55402-1425 Telephone: (612) 492-7000 Email: dmarshall@fredlaw.com Email: ljanus@fredlaw.com Email: kubl@fredlaw.com Attorneys for Defendants Carolyn Behrman, Donelson Caffery, Claudia David-Roscoe, Frances Drennen, Howard Pollack, Ben Henderson, Angie O’Pry-Blades, and Stephen Distefano Case 1:16-cv-00194-RJL Document 56 Filed 08/15/16 Page 3 of 4 4 CERTIFICATE OF SERVICE I certify that a copy of the foregoing was electronically filed via CM/ECF with notice of same being electronically served by the Court on all parties. Dated: August 15, 2016 /s/ Constantinos G. Panagopoulos Constantinos G. Panagopoulos (Bar No. 430932) 59424359 Case 1:16-cv-00194-RJL Document 56 Filed 08/15/16 Page 4 of 4