United States District Court, E.D. Michigan, Southern Division
AND ORDER GRANTING DEFENDANT'S MOTION FOR LEAVE TO FILE
REPLY BRIEF , DENYING PLAINTIFF'S MOTION TO STRIKE
DEFENDANT'S REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS
, AND DENYING DEFENDANT'S MOTION TO DISMISS COMPLAINT
FOR LACK OF PERSONAL JURISDICTION 
GERSHWIN A. DRAIN UNITED STATES DISTRICT JUDGE.
xLM Solutions, Inc. (“xLM”) initiated this action
in state court on December 12, 2017. Dkt. No. 1, p. 26 (Pg.
ID 26). The Defendant, Mecanica Solutions, Inc.
(“Mecanica”), removed the case to this Court on
February 7, 2018. See Id. In its amended complaint,
xLM alleges that Mecanica breached both a 2006 Finder's
Fee Agreement (Count I) and a 2014 Finder's Fee Agreement
(Count II). Additionally, xLM asserts claims for unjust
enrichment (Count III), breach of fiduciary duty (Count IV),
fraudulent misrepresentation regarding funds allegedly owed
under the 2014 Finder's Fee Agreement (Count V), and
fraudulent misrepresentation with respect to the
Defendant's intent to perform its obligations under the
Second Finder's Fee Agreement (Count VI). See
Dkt. No. 5.
March 14, 2018, Mecanica moved to dismiss the complaint for
lack of personal jurisdiction. Dkt. No. 8. xLM responded to
the motion on April 3, 2018. Dkt. No. 12. And on April 17,
2018, the Defendant replied in support of the motion. Dkt.
parties, however, vigorously dispute whether the Court should
consider Mecanica's reply brief. First, on April 18,
2018, xLM requested that the Court strike the Defendant's
reply brief, arguing that it was untimely submitted under
Eastern District of Michigan Local Rule 7.1(e). Dkt. No. 15.
Mecanica responded to the motion to strike on April 19, 2018.
Dkt. No. 16. xLM replied in support of its motion to strike
on April 24, 2018. Dkt. No. 18.
Mecanica submitted on April 20, 2018 a motion for leave to
file a reply brief. Dkt. No. 17. The Plaintiff responded on
April 24, 2018, and Mecanica replied in support on April 26,
2018. See Dkt. Nos. 19, 20.
before the Court is the Plaintiff's Motion to Strike the
Defendant's Reply Brief in Support of the Motion to
Dismiss , the Defendant's Motion for Leave to File a
Reply Brief , and the Defendant's Motion to Dismiss
the Complaint for Lack of Personal Jurisdiction . The
Court held a hearing on these motions on June 11, 2018 at
11:00 a.m. See Dkt. No. 21. At the hearing, the
Court ruled on these motions from the bench. The Court DENIED
the Plaintiff's Motion to Strike the Defendant's
Reply Brief in Support of the Motion to Dismiss  and
GRANTED the Defendant's Motion for Leave to File a Reply
Brief in Support of its Motion to Dismiss the Complaint .
The Court also DENIED the Defendant's Motion to Dismiss
the Complaint for Lack of Personal Jurisdiction . In this
Opinion, the Court will explain its rationale.
a limited liability company headquartered in Michigan. Dkt.
No. 5, pp. 1-2 (Pg. ID 74-75). It offers technological
support and assistance for the implementation of computer
programs. Dkt. No. 12-2, p. 3 (Pg. ID 963). Mecanica is a
Canadian corporation, headquartered in Quebec, Canada and it
does not have a physical presence in Michigan. Dkt. No. 8, p.
8 (Pg. ID 469). It markets software licenses, with 75% of its
business occurring outside of the United States and 25%
taking place inside the United States. Id. Although
Mecanica does not generally advertise in Michigan, it has
sent sales emails to Michigan-based customers, including the
Plaintiff. Id.; Dkt. No. 12-2, p. 13 (Pg. ID 973);
Dkt. No. 12-23. Mecanica has also attended at least two
industry conferences in Michigan. Dkt. No. 12, pp. 9, 16-17
(Pg. ID 934, 941-42); see also Dkt. No. 12-2, p. 13
(Pg. ID 973). While attending two such conferences, it
allegedly held discussions with xLM about various business
dealings. Dkt. No. 12, pp. 9, 16-17 (Pg. ID 934, 941-42);
see also Dkt. No. 12-2, p. 13 (Pg. ID 973).
parties executed two profit-sharing contracts. First, around
December 2006, the parties entered a finder's fee
agreement (the “First Finder's Fee
Agreement”). Dkt. No. 5, p. 2 (Pg. ID 75). This
agreement provided that xLM would, among other things, refer
customers or other business to Mecanica regarding the resale
of SmarTeam Annual License Charge and Product License Charge
licenses. Id.; see also Dkt. No. 12-2, p. 5
(Pg. ID 965). In return, Mecanica promised to pay 50% of the
gross profits from these referrals. Dkt. No. 5, p. 2 (Pg. ID
75). The contract contained a Michigan choice-of-law
provision, but no forum-selection clause. Id. at p.
15 (Pg. ID 88).
and xLM negotiated the contract from afar, largely by email
and phone. Dkt. No. 12, p. 11 (Pg. ID 936). xLM drafted the
contract and signed it in Michigan. Id. Conversely,
Mecanica negotiated and executed the contract from Rhode
Island. Id. This agreement yielded no Michigan
customers. Id. at p. 12 (Pg. ID 937); Dkt. No. 8, p.
12 (Pg. ID 473). Indeed, xLM referred just one company to
Mecanica and that company was based in Canada. See
Dkt. No. 8, p. 12 (Pg. ID 473); Dkt. No. 12, p. 12 (Pg. ID
937); see also Dkt. No. 12-2, p. 5 (Pg. ID 965). The
Plaintiff twice invoiced Mecanica for money obtained from
this referral, once on July 12, 2008 and again on January 25,
2010. Dkt. No. 12, p. 12 (Pg. ID 937); see Dkt. No.
the parties executed a profit-sharing agreement (the
“Second Finder's Fee Agreement”) in November
of 2014. Dkt. No. 5, p. 2 (Pg. ID 75). This agreement
involved xLM's referral of customers and business to
Mecanica regarding Dassault products. Id. at pp. 2-3
(Pg. ID 75-76). Like the first profit-sharing agreement, this
agreement was governed by Michigan law and did not contain a
forum-selection clause. Id. at 19 (Pg. ID 92).
highlights one company it referred under this agreement,
Karma Automotive. The Plaintiff contends that Mecanica
provided services to Karma Automotive under the Second
Finder's Fee Agreement and did so in Michigan. Dkt. No.
12, p. 15 (Pg. ID 940). Specifically, xLM alleges that
“Karma Automotive has offices in Michigan and its
Michigan employees are and have been utilizing the services
and/or products provided by Mecanica Solutions to
Fisker/Karma in Michigan.” Dkt. No. 12-2, p. 15 (Pg. ID
975); see also Dkt. No. 12, p. 15 (Pg. ID 940).
Based on business garnered from Karma Automotive between
March 2015 and November 2016, Mecanica informed xLM that it
owed xLM money pursuant to the Second Finder's Fee
Agreement. Dkt. No. 12, p. 14 (Pg. ID 939). Mecanica,
according to xLM, paid the amount owed for that timeframe.
Mecanica has allegedly failed to pay over $650, 000 in fees
under this second agreement, including certain fees from
business related to Karma Automotive. Dkt. No. 5, p. 4 (Pg.
ID 20); see also Dkt. No. 12-2, p. 12 (Pg. ID 972).
xLM maintains that Mecanica has made false statements
regarding the money generated from xLM's referrals under
both profit-sharing agreements. Dkt. No. 5, pp. 4-5 (Pg. ID
20-21). In particular, xLM alleges that Mecanica
representatives, while visiting Michigan, falsely represented
that Mecanica has not made any post-2016 sales to Karma
Automotive. Dkt. No. 12-2, p. 12 (Pg. ID 972). Mecanica also
never intended to comply with the Second Finder's Fee
Agreement, according to xLM. Dkt. No. 12, pp. 26-27 (Pg. ID
claims that the parties had several technical support
agreements. Id. at pp. 12-13 (Pg. ID 936-37). These
agreements, however, are separate from the profit-sharing
contracts which underlie the causes of action in this
litigation. Id. Yet like the profit-sharing
agreements, only xLM was in Michigan during the execution and
negotiation of these technical support agreements.
November of 2007, the parties purportedly entered an
agreement for technical support, whereby Mecanica would give
xLM technical support for an agreed upon price. I ...