The opinion of the court was delivered by: TIMOTHY K. LEWIS
Plaintiff Edward Nichols filed a three-count complaint against defendants while acting pro se. Since that time, plaintiff has retained counsel and has withdrawn two of the three theories upon which he claimed the defendants were liable. Remaining in the case is one count of fraud, alleged only against defendant Peter L. Costa, an attorney in New York.
In brief, plaintiff alleges that defendant Costa engaged in fraud by assisting two persons in a related lawsuit also pending before this court ("Civil Action No. 91-344"). In Civil Action No. 91-344, plaintiff sued, inter alia, two residents of New York (Angeline and William Fuller) who, according to the record, are representing themselves in defending that case. Plaintiff alleges that defendant Costa assisted the Fullers in that defense. He asserts that defendant Costa thus engaged in fraud, because the Fullers are shown on the record as appearing pro se despite having received assistance from an attorney.
Defendant has filed a motion to dismiss or, in the alternative, for summary judgment, asserting lack of personal jurisdiction and failure to state a claim upon which relief can be granted. This court will address the jurisdictional issue before considering whether plaintiff has stated a claim. 5A Wright & Miller, Federal Practice and Procedure § 1351 at 244 (2d ed. 1990); Season-All Industries, Inc. v. Turkiye Sise Ve Cam Fabrikalari, A.S., 425 F.2d 34, 38 n.7 (3d Cir. 1970).
In so doing, the court notes that defendant has filed an affidavit in support of his motion. Plaintiff has similarly referred the court to matters outside the pleadings. The court has considered the affidavits and other material referenced in connection with the personal jurisdiction issue. Patterson v. Federal Bureau of Investigation, 893 F.2d 595, 603-04 (3d Cir. 1990), quoting Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61 (3d Cir. 1984) (a motion to dismiss for lack of personal jurisdiction necessarily involves consideration of matters outside the pleadings). It has not, however, considered anything outside the pleadings in making its decision with regard to defendant's allegation that plaintiff has failed to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b).
I. Motion to Dismiss Based Upon Lack of Personal Jurisdiction
Defendant Costa initially asserts that this court cannot exercise personal jurisdiction over him. Fed. R. Civ. P. 12(b)(2). The court agrees.
Once a defendant raises the issue of personal jurisdiction, the plaintiff bears the burden of proving, by a preponderance of the evidence, facts sufficient to establish personal jurisdiction. Carteret Savings Bank, FA v. Shushan, No. 91-5376, slip op. at 12 (3d Cir. January 13, 1992), citing Time Share Vacation v. Atlantic Resorts, Ltd., 735 F.2d 61, 65 (3d Cir. 1985).
The record at Civil Action No. 91-344 indicates that defendant Costa notarized two affidavits and provided legal advice to the Fullers in that case. It is undisputed that all of these actions took place in the State of New York. Defendant Costa has submitted a sworn affidavit indicating that he has neither practiced nor applied to practice law in Pennsylvania, and that he did not represent the Fullers or solicit their business with respect to Civil Action No. 91-344. Defendants' brief at 5-6; affidavit of Peter L. Costa at PP 4-6, 8-10. Defendant Costa did, however, provide information on basic procedural matters and type and notarize the two affidavits in question. Affidavit of Peter L. Costa at P 11. Plaintiff has submitted no evidence of any other contact with Pennsylvania.
Pennsylvania courts may exercise personal jurisdiction over non-resident defendants to the limits of the due process clause of the Fourteenth Amendment. 42 Pa. C.S.A. § 5322(b) ); North Penn Gas Co. v. Corning Natural Gas Corp., 897 F.2d 687, 689-90 (3d Cir.) (per curiam), cert. denied, 112 L. Ed. 2d 101, 111 S. Ct. 133 (1990). Generally, personal jurisdiction over a non-resident defendant may be exercised in two situations. First, a court may assert "general jurisdiction" over a defendant when the claim does not arise out of or is unrelated to the defendant's contacts with the forum state. Dollar Savings Bank v. First Security Bank of Utah, 746 F.2d 208, 211 (3d Cir. 1984). Alternatively, "specific jurisdiction" is invoked when the claim is related to or arises out of the defendant's contacts with the forum. Id.
General jurisdiction is inappropriate when there are no ongoing and continuous forum contacts. Id. at 212. In this case, for example, plaintiffs claim arises from two documents notarized on the same date and from one alleged instance of attorney Costa providing advice. Thus, the test for specific jurisdiction is appropriate. When the plaintiff's claim arises out of a "single transaction in a forum where the defendant has no continuing presence . . . the focus must be on minimum contacts." Id., citing Paolino v. Channel Home Centers, 668 F.2d 721 (3d Cir. 1981).
Essentially, non-resident defendants may be sued if they have "minimum contacts" with the forum state. International Shoe Co. v. Washington, 326 U.S. 310, 90 L. Ed. 95 , 66 S. Ct. 154 (1945). In each case, there must be "some act by which the defendant purposely avails itself of the privilege of conducting business within the forum State, thus invoking the benefits and protections of its laws." Hanson v. Denckla, 357 U.S. 235, 253, 2 L. Ed. 2d 1283 , 78 S. Ct. 1228 (1958). The key inquiry is "whether the defendant's conduct and connection with the forum state are such that he should ...