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PARVIZ HAGHIGHI ABYANEH v. MERCHANTS BANK

October 21, 1986

Parviz Haghighi Abyaneh and Iran Haghighi, Plaintiffs
v.
Merchants Bank, North, successor by merger to First State Bank, Defendant and Third-Party Plaintiff v. Citizens Savings & Loan Association of Rocky Mount, North Carolina, Third-Party Defendant



The opinion of the court was delivered by: NEALON

 WILLIAM J. NEALON, Chief Judge.

 Defendant Merchants Bank, North, (Merchants) filed a third-party complaint against Citizens Savings & Loan Association of Rocky Mount, North Carolina (Citizens), on July 28, 1986. Citizens filed a Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(2) requesting that the third-party complaint against it be dismissed for a lack of in personam jurisdiction. A brief in support of the motion was filed on August 25, 1986. Merchants opposed the motion on September 11, 1986 and plaintiffs opposed on September 10, 1986. Citizens filed a reply brief on September 23, 1986. Accordingly, this matter is ripe for disposition. *fn1" For the reasons set forth below, third-party Defendant Citizens Savings & Loan Association of Rocky Mount, North Carolina's Motion to Dismiss will be granted.

 FACTUAL BACKGROUND

 Plaintiff, Parviz Haghighi Abyaneh, instituted suit against Merchants, claiming that funds from an account at Merchants owned by plaintiff and his sister, Iran Haghighi, were removed by Merchants on May 23, 1984, without authorization from either owner of the account. Parviz Haghighi Abyaneh claims that a wire transfer of funds from Merchants to Citizens on May 23, 1984, was unauthorized and, therefore, Merchants is liable to plaintiff for the amount so transferred, approximately $ 53,000.00

 In its third-party complaint, Merchants claims that Citizens is liable to it if Merchants is liable to plaintiff because the wire transfer was made pursuant to instructions given by Citizens over the telephone at the request of a person whom Citizens identified as Parviz Haghighi Abyaneh. Merchants, however, denies liability to plaintiff, claiming that plaintiff did, in fact, authorize the transfer in question.

 Merchants is a banking institution organized under the laws of the Commonwealth of Pennsylvania, with its principal place of business in Wilkes-Barre, Pennsylvania. Citizens is a savings and loan association located in Rocky Mount, North Carolina. As stated, Merchants avers that Citizens is liable to Merchants for all or part of plaintiff's claim against Merchants because Citizens wrongfully participated in the transfer in question.

 DISCUSSION

 At the outset, the court acknowledges that after a party files a motion to dismiss for lack of personal jurisdiction, the burden shifts to the opposing party to demonstrate that the defendant has contacts with Pennsylvania sufficient to give this court jurisdiction. See Stranahan Gear Co., Inc., v. NL Industries, Inc., 800 F.2d 53 (3d Cir. 1986). In determining whether plaintiffs sustain their burden, the status of the parties is not determinative. See Dollar Savings Bank v. First Security Bank of Utah, 746 F.2d 208 (3d Cir. 1984). Thus, the court must determine whether plaintiffs and Merchants have met their burden of establishing that this court has in personam jurisdiction over Citizens.

 "The central concern of a jurisdictional inquiry is the relationship among the defendant, the forum and the litigation." Max Daetwyler Corp. v. R. Meyer Corp., 762 F.2d 290, 293 (3d Cir.), cert. denied, 474 U.S. 980, 106 S. Ct. 383, 88 L. Ed. 2d 336 (1985). Fed.R.Civ.P. 4(e) permits a district court to assert personal jurisdiction over a non-resident to the extent allowed under the law of the state where the district court sits. See Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61 (3d Cir. 1984). The Pennsylvania Long Arm Statute, 42 Pa. Cons. Stat. Ann. § 5322(b), allows a district court to exercise jurisdiction over a person "to the fullest extent allowed under the Constitution of the United States and may be based on the most minimum contact with this Commonwealth allowed under the Constitution of the United States." The reach of the Pennsylvania statute is coextensive with the Due Process Clause of the United States Constitution. See Time Share Vacation Club v. Atlantic Resorts, Ltd., supra.

 Section 5322(b) represents the greatest extent to which jurisdiction can be asserted over a non-resident defendant. Accordingly, because the court finds that the assertion of jurisdiction in this case does not comport with constitutional standards, it is unnecessary to determine whether jurisdiction is proper under any of the "specific act" sections of the Pennsylvania statute. See 42 Pa. Cons. Stat. Ann. § 5322(a). That is, even if proper under Pennsylvania law, the assertion of jurisdiction over Citizens must comport with federal constitutional standards.

 Initially, the court must determine whether the claim being pursued against Citizens arises from Citizens' forum related activities or from non-forum related activities. See Reliance Steel Products Co. v. Watson, Ess, Marshall and Enggas, 675 F.2d 587 (3d Cir. 1982). In this case, it is clear that any claim against Citizens arises out of Citizens' forum related activities. That is, the claim emanates from the same activities upon which jurisdiction is based. Consequently, the court must determine whether Citizens has certain minimum contacts with this forum in order for this court to invoke specific jurisdiction over it. *fn2"

 In other words, ". . . the defendant's conduct and connection with the forum State . . . [must be] such that he should reasonably anticipate being haled into court there." See Gehling v. St. George's School of Medicine, Ltd., 773 F.2d 539, 541 (3d Cir. 1985) (citing Worldwide Volkswagen Corp. v. Woodson, 444 U.S. 286, 62 L. Ed. 2d 490, 100 S. Ct. 559 (1980)). Under this analysis the court must ask whether there are sufficient minimum contacts between the defendant and the forum state. See Worldwide Volkswagen Corp. v. Woodson, supra. The quality and nature of the defendant's activity must be such that it is reasonable and fair to require the defendant to conduct his defense in this state. Kulko v. Superior Court of California, 436 U.S. 84, 56 L. Ed. 2d 132, 98 S. Ct. 1690 (1978); International Shoe Co. v. Washington, 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154 (1945). Finally, a non-resident defendant must have purposefully availed itself of the privilege of acting within the forum state. Hanson v. Denckla, 357 U.S. 235, 2 L. Ed. 2d 1283, 78 S. Ct. 1228 (1958). In light of this analysis, the court must determine whether these constitutional standards are met in this case.

 The affidavit of Henry Hicks submitted with Citizens' motion demonstrates that Citizens has no business contacts with the Commonwealth. See Document 11 of the Record. Indeed, the affidavit clearly establishes that the only contact Citizens has with the Commonwealth is the phone calls on or about May 23, 1984, initiated in order to affect a wire transfer from Merchants to an individual identifying himself as Plaintiff Parviz Haghighi Abyaneh. These three (3) telephone calls made for the transfer of funds to another North Carolina bank, Planters National Bank, for eventual transfer to ...


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