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MCCABE v. KEVIN JENKINS & ASSOCS.

February 3, 1982

Christina McCABE
v.
KEVIN JENKINS AND ASSOCIATES, INC. and Donald L. Herron



The opinion of the court was delivered by: LORD, III

Defendant Kevin Jenkins and Associates, Inc. (KJAI) has moved for summary judgment in this libel action claiming that this court lacks personal jurisdiction over it. Service in this case was made on defendant KJAI pursuant to Pennsylvania's long-arm statute. 42 Pa.Cons.Stat.Ann. §§ 5321-5329 (Purdon 1981). Following my examination of the factual and legal presentations of the parties, both in the papers and at oral argument, I find that KJAI has insufficient contacts with this forum and therefore grant its motion for summary judgment.

I. Statement of the Law

 Under the Federal Rules of Civil Procedure, the territorial reach of a federal district court's jurisdiction is defined and limited by the applicable jurisdictional statutes of the state in which the district court sits. Fed.R.Civ.P. 4(e). Because the Pennsylvania statute extends jurisdiction to the fullest extent permitted under the Constitution, *fn1" however, the only inquiry required is whether assertion of jurisdiction over KJAI is consistent with the due process standards set forth in International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945), and its progeny. I therefore proceed immediately to the constitutional question. See Jacobs v. Lakewood Aircraft Service, Inc., 493 F. Supp. 46 (E.D.Pa.1980); Watson McDaniel Co. v. National Pump & Control, Inc., 493 F. Supp. 18 (E.D.Pa.1979).

 In International Shoe, the Supreme Court held that jurisdiction over a defendant is consistent with the due process clause of the Constitution only in a case in which the defendant has certain minimum contacts with the forum state such that "maintenance of the suit does not offend "traditional notions of fair play and substantial justice.' " 326 U.S. at 316, 66 S. Ct. at 158. This is not a mechanical or quantitative test: "(w)hether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure." Id. at 319, 66 S. Ct. at 159. Finally, "(in) determining whether a particular exercise of ... jurisdiction is consistent with due process, the inquiry must focus on "the relationship among the defendant, the forum, and the litigation.' Shaffer v. Heitner, supra, 433 U.S. (186) at 204 (97 S. Ct. 2569 at 2580, 53 L. Ed. 2d 683)." Rush v. Savchuk, 444 U.S. 320, 327, 100 S. Ct. 571, 577, 62 L. Ed. 2d 516 (1980).

 There have been a number of refinements on the basic principles espoused by the Supreme Court in International Shoe. For example, in evaluating the sufficiency of a defendant's contacts with the forum, I must determine whether the defendant has "purposefully availed itself" of the privileges of conducting activities within that particular forum, thereby invoking the benefits and protections of its laws:

 
The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant's activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.

 Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 1239, 2 L. Ed. 2d 1283 (1958). This principle was recently reiterated as a necessary predicate to jurisdiction in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980), in which the Supreme Court held that because "the defendants' conduct in connection with the forum State" was not such that they would "reasonably anticipate being haled into court" in Oklahoma, that state's courts could not assert jurisdiction over them. Id. at 297, 100 S. Ct. at 567.

 Second, constitutionally permissible jurisdiction cannot be asserted over a defendant merely because it has acquiesced in activity within the forum state initiated by another party without soliciting that business. In such a case, the defendant will not be deemed to have purposefully availed itself of the forum state's laws, even though it has engaged in some minimal deliberate activity within the forum state. See, e.g., A. M. Communications Corp. v. Eastern Connecticut Cable Vision, No. 79-95 (E.D.Pa., Apr. 9, 1980); Jacobs v. Lakewood Aircraft Service, Inc., 493 F. Supp. 46 (E.D.Pa.1980); Bean v. Winding River Camp Ground, 444 F. Supp. 141 (E.D.Pa.1978).

 Third, following a complete evaluation of the above considerations, which look to the defendant's interests, courts have also examined the interest of the forum state in adjudicating a dispute within its borders. See Empire Abrasive Equipment Corp. v. H. H. Watson, Inc., 567 F.2d 554, 557 (3d Cir. 1977). In turn, this interest of the forum must be balanced against two competing interests:

 
First, if the "minimum contacts" do not satisfy the constitutional concept of fundamental fairness, the forum interest must give way. "Thus a state may exercise its jurisdiction in a manner consistent with values of federalism, but if that exercise would nevertheless be fundamentally unfair to the defendant, the power is void." ( Empire Abrasive Equipment Corp., 567 F.2d at 557.) Second, the defendant's own state also has an interest in protecting its citizens from distant, possibly harassing litigation, especially where the alleged dereliction took place, as here, within its own borders. The rule "acts to ensure that the States, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system." ( World-Wide Volkswagen Corp., 444 U.S. at 292, 100 S. Ct. at 564.)

 Jacobs, 493 F. Supp. at 47.

 II. Statement of the Facts

 Having established the relevant principles of law, I turn now to the facts in this case. *fn2" Plaintiff, a Pennsylvania citizen, filed this diversity action alleging invasion of privacy and defamation against defendants KJAI, a California corporation with its principal place of business in California, and Donald Herron, a private individual who is a citizen of the State of New York. Plaintiff's cause of action arises from the allegedly unauthorized publication of plaintiff's photograph with an accompanying caption in "Boulevards" magazine, which is owned, published, and distributed by defendant KJAI.

 An affidavit submitted by Kevin Jenkins, president of KJAI, discloses the following uncontroverted facts. The allegedly defamatory photograph of plaintiff was taken in San Francisco by defendant Herron, a professional photographer. (Jenkins Affidavit P 27) "Boulevards" is published in San Francisco, California and presently has a monthly circulation of approximately 5,000. (Jenkins Affidavit PP 2, 24) Ninety-five percent of the advertising carried in "Boulevards" is from San Francisco and/or California sources. (Jenkins Affidavit P 14) KJAI has a total of three full-time ...


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