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COLMEN FIN. SERVS. v. CHARTER EQUIP. LEASING CORP.

March 8, 1989

COLMEN FINANCIAL SERVICES
v.
CHARTER EQUIPMENT LEASING CORP., LARRY MEMEL, and RICHARD WILBUR



The opinion of the court was delivered by: LUDWIG

 LUDWIG, UNITED STATES DISTRICT JUDGE

 Defendants Charter Equipment Leasing Corp., Larry Memel, and Richard Wilbur move to dismiss the complaint for lack of personal jurisdiction and, in the alternative, for summary judgment. F.R.Civ.P. 12(b) (2); 56(c). The record consists of the pleadings, affidavits, and exhibits. Jurisdiction is diversity. 28 U.S.C. § 1332. For the following reasons, the motion to dismiss has been granted. *fn1"

 Plaintiff Colmen Financial Services is an unincorporated division of Colmen Management Company, a Pennsylvania corporation. A business broker located in Philadelphia, it provides consulting services and acts as an intermediary in corporate mergers and acquisitions. Charter was a California corporation with its principal place of business in Beverly Hills. It leased business equipment, including photocopiers, computers, and telephone systems. Memel was president, Wilbur was executive vice president, and they were Charter's sole shareholders.

 In March, 1987 as the result of a mass mailing advertising Colmen's services, Memel telephoned Colmen to inquire about a sale or merger of Charter. Thereafter, Colmen's managing director flew to California to meet Memel and Wilbur. An agreement was drafted and signed by Colmen in Pennsylvania, and sent to California where, on June 30, 1987, it was signed by Memel and Wilbur. Under its terms Colmen became Charter's "exclusive financial advisor" in a merger or acquisition, to be compensated for its consulting services and costs together with a contingent brokerage fee based on a formula. Thereafter, Charter sent payments to Colmen in Philadelphia.

 Colmen prepared sales material, made telephone calls to locate buyers, and identified Oxford First, a Pennsylvania financial institution, as a potential prospect. Negotiations took place between Charter and Oxford First, and in May, 1987 Memel and Wilbur attended two days of meetings in Philadelphia. On June 17, 1988 Charter was sold to Cencor, a Delaware corporation. Colmen originally contacted Cencor, but did not take part in the sale negotiations. The complaint claims that defendants owe Colmen in excess of $ 75,000 under the contractual formula and that Charter has offered $ 10,000.

 Asserting lack of personal jurisdiction, plaintiff Colmen bears the burden of demonstrating sufficient contacts with the forum state. Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 63 (3d Cir. 1984). Personal jurisdiction may be exercised over a nonresident to the extent permitted by state law. *fn2" F.R.Civ.P. 4(e); Provident National Bank v. California Federal Savings and Loan Ass'n, 819 F.2d 434, 436 (3d Cir. 1987).

 Colmen asserts that this court has general jurisdiction over defendants. General jurisdiction exists when a defendant has contacts with the forum irrespective of the specific claim in suit. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 fn. 9, 104 S. Ct. 1868, 1872 fn. 9, 80 L. Ed. 2d 404 (1984). It is established upon a showing that defendant was carrying on a "continuous and systematic" part of its business in the forum. Perkins v. Benguet Mining Co., 342 U.S. 437, 438, 72 S. Ct. 413, 414, 96 L. Ed. 485 (1952); Provident, 819 F.2d at 437. Required are "significantly more than mere minimum contacts." Provident, 819 F.2d at 437.

 Colmen also points to Charter's relationship with Westinghouse Credit Corporation, a Delaware company, as evidence that Charter maintained substantial and ongoing activity in Pennsylvania. Charter assigned leases to Westinghouse through a California office. These transactions occurred during the periods from 1980 through 1984 and 1986 through 1987. Charter sent the lease documents to a Westinghouse office in California. Westinghouse collected the lease payments out of a Pennsylvania office. Charter's agreement with Westinghouse obligated Charter to "cooperate" with Westinghouse in the collection of payments. *fn3" Supplemental interrogatory answers, ex. 7, para. I.

 Colmen's attempt to liken this assignment and collection relationship to that in Provident National Bank, 819 F.2d 434 (3d Cir. 1987) is not well founded. There, defendant chose to maintain an account in a Pennsylvania bank specifically for the purpose of transacting daily business here. Charter, however, could not "reasonably anticipate being haled into court" in Pennsylvania merely because Westinghouse has an office in this state. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 566, 62 L. Ed. 2d 490 (1980); Provident, 819 F.2d at 438; compare M.P.A. Inc. v. Avalon Pointe Marina, Inc., 1988 U.S. Dist. LEXIS 4091, C.A. No. 87-5370 (E.D.Pa. May 9, 1988) (sufficient contacts to establish general jurisdiction).

 There is no suggestion that Charter had any part in selecting the location of Westinghouse's collection activities. Without some connection to Charter, the Westinghouse office in Pennsylvania cannot form the basis for general jurisdiction. Helicopteros, 466 U.S. at 417, 104 S. Ct. at 1873 ("Such unilateral activity of . . . a third person is not an appropriate consideration when determining whether a defendant has sufficient contacts with a forum State to justify an assertion of jurisdiction.") The same can be said for Charter's relationship with First United Thrift Bank, a California bank that eventually became a subsidiary of a Pennsylvania institution. All of these contacts, added together, do not establish that Charter has consistently and systematically done business in Pennsylvania. Perkins, 342 U.S. at 438, 72 S. Ct. at 414; Provident, 819 F.2d at 437.

 Colmen also invokes specific jurisdiction - that the facts of the claim itself support a finding of personal jurisdiction. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980); USA Coil & Air Inc. v. Cavalier Mechanical Ltd., 1987 U.S. Dist. LEXIS 462, C.A.No. 86-3293 (E.D.Pa. January 27, 1987).

 That Charter contracted with a Pennsylvania corporation is not enough to subject it to jurisdiction in this state. Burger King, 471 U.S. at 478-79, 105 S. Ct. at 2185; USA Coil & Air, LEXIS at 4-6. Other than the initial telephone inquiry, Charter did not reach out to plaintiff. Colmen distributed advertisements, traveled to California to market its services and actively pursued the relationship with defendants. Moreover, the work performed by plaintiff in Pennsylvania in order to sell Charter was unilateral activity on its part. The telephone calls emanating from Philadelphia and the locating of prospective buyers are not ...


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