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MANN v. TOM JAMES CO.

October 8, 1992

J. CHARLES MANN, Plaintiff,
v.
TOM JAMES COMPANY, SPENCER HAYS, JAMES MCEACHERN, ROBERT SHERRER, JOHN DOE COMPANY NO. 1 and JOHN DOE COMPANIES NOS. 2-5, Defendants. TOM JAMES COMPANY, Counterclaim Plaintiff, v. CHARLES MANN, Counterclaim Defendant. SPENCER HAYS AND JAMES MCEACHERN, Third-Party Plaintiffs, v. NISHAT AHMED, Third-Party Defendant.



The opinion of the court was delivered by: BY THE COURT; EDUARDO C. ROBRENO

MEMORANDUM

 Robreno, J.

 October 8, 1992

 Is a non-resident defendant subject to personal jurisdiction in Pennsylvania on the basis of allegedly defamatory statements he made, while outside Pennsylvania, during the course of a single unsolicited telephone conversation which emanated from Pennsylvania? I find that, under all the circumstances of this case, to do so would offend due process notions. Therefore, the third-party defendant's motion to dismiss for lack of personal jurisdiction will be granted. Fed. R. Civ. P. 12(b)(2).

 A. Background

 Third-party defendant Nishat Ahmed ("Ahmed") is a citizen and resident of California. According to the third-party complaint, Ahmed, while in California, made certain libelous and slanderous statements concerning third-party plaintiffs during the course of a telephone conversation initiated from Pennsylvania by J. Charles Mann ("Mann"). These statements made their way into the complaint filed by Mann in the main action in this case. *fn1" Third-party plaintiffs assert that Ahmed is amenable to suit in Pennsylvania pursuant to the Pennsylvania long arm statute, 42 Pa. Cons. Stat. Ann. § 5322(a). *fn2"

 Ahmed has filed an affidavit stating that he is the president of a clothing business located in California, has never lived or worked in Pennsylvania, never conducted any business in Pennsylvania, and does not own any real estate in Pennsylvania. The affidavit further states that he received a single unsolicited telephone call from Mann during the Summer of 1991 and that during the course of the telephone conversation, he did not ask and Mann did not indicate from where Mann was calling. Ahmed states further that during the call, Mann, who was also involved in the clothing industry, asked for his business advice, because Mann ". . . was leaving [his employer] to establish his own business[,]" as Ahmed had done previously.

 The third-party plaintiffs have responded by filing an excerpt of Mann's deposition. During the deposition, Mann testified that he called Ahmed to verify information concerning the complaint in the main instant action; that during the conversation he asked Ahmed whether to Ahmed's knowledge "[there were] any middleman companies . . . that were owner controlled [by third-party plaintiffs] where they would buy, for example, wool through this middle company and then sell it to Tom James for a profit"; that Ahmed said "yes that did exist"; that Ahmed did not tell him the name of any of the companies but said he believed these events had occurred during the "1970s and possibly into the early to mid '80s"; and that Ahmed said "he would testify to that fact". Deposition of Mann at 128-129, Exhibit "C" to Defendants/Third-Party Plaintiffs Brief in Opposition to Third-Party Defendant's Motion to Dismiss for Lack of Personal Jurisdiction.

 B. Discussion

 Under the Federal Rules of Civil Procedure, personal jurisdiction over a non-resident defendant may be exercised to the extent permitted under state law. Fed. R. Civ. P. 4(e). The Pennsylvania long arm statute, provides for the exercise of personal jurisdiction over a nonresident defendant that is coextensive with the due process clause of the United States Constitution. 42 Pa. Cons. Stat. Ann. § 5322(b); Time Share Vacation Club v. Atlantic Resorts Ltd., 735 F.2d 61, 63 (3d Cir. 1984); Colmen Fin. Services v. Charter Equip. Leasing Corp., 708 F. Supp. 664, 666 (E.D. Pa. 1989). Thus, whether there is personal jurisdiction over Ahmed in this case must be tested under both the Pennsylvania long arm statute and the due process clause of the Fourteenth Amendment to the United States Constitution. See, e.g., Kubik v. Letteri, No. 83 W.D. 1990, 1992 WL 232412, at *1 (Pa. Sep. 16, 1992) (concluding as an initial matter that the acts of defendant within Pennsylvania confer personal jurisdiction under the long arm statute and also that the exercise of jurisdiction comported with due process requirements). The initial question of whether the acts of the defendant provide a cognizable bases for personal jurisdiction under the Pennsylvania long arm statute is one of state law. Id. However, the issue of whether that exercise comports with the constitutional requirements of due process is one of federal law. Nolt v. Nolt, Inc. v. Rio Grande, Inc., 738 F. Supp. 163, 165 (E.D. Pa. 1990) (citing Empire Abrasive Equip. Corp. v. H. H. Watson, Inc., 567 F.2d 554, 556 n.1 (3d Cir. 1977)). The frequency with which the latter issue has been visited by the Supreme Court bespeaks plainly of its constitutional significance. See infra at pp. 5-8.

 Once the defendant raises a jurisdictional defense, the burden is on plaintiff to establish with reasonable particularity the sufficiency of defendant's contacts. Gehling v. St. George's School of Medicine, Ltd., 773 F.2d 539, 542 (3d Cir. 1985). The plaintiff may not rely upon the conclusory averments of the pleadings but must come forward with competent evidence that establishes the court's jurisdiction. "Once the motion is made, plaintiff must respond with actual proof, not mere allegations." Patterson By Patterson v. F.B.I., 893 F.2d 595, 604 (3d Cir.) (quoting Time Share, 735 F.2d at 67 n.9), cert. denied, 111 S. Ct. 48 (1990).

 To satisfy the due process clause requirements, plaintiff may show that the defendant is subject either to "general jurisdiction" or to "specific jurisdiction." Provident Nat. Bank v. California Federal Sav. & Loan Ass'n, 819 F.2d 434, 437 (3d Cir. 1987). To demonstrate the existence of general jurisdiction, the plaintiff must prove that the defendant had "continuous and systematic contacts with the forum state." Id. The facts required to support the exercise of general jurisdiction must be persuasive. See Reliance Steel Products Co. v. Watson, Ess, Marshall & Enggas, 675 F.2d 587, 589 (3d Cir. 1982). Specific jurisdiction, on the other hand, is shown by establishing that the particular cause of action arose from the defendant's activities within the forum state. Provident Nat. Bank, 819 F.2d at 437. Since the instant case turns on a single telephone call, only specific jurisdiction is at issue.

 The contours of specific jurisdiction defined in the Supreme Court jurisprudence, are not subject to precise delineation, the lines appearing to be "nicer than brighter." *fn3" See also World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980) ("defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court. . . ."; Hanson v. Denckla, 357 U.S. 235, 253 (1958) (whether the defendant committed "some act by which [he] purposefully avails [himself] of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws"). *fn4"

 These somewhat amorphous formulations bottom out on a concern for "fairness," see International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) ("traditional notions of fair play and substantial justice"), based in large part on an assessment of the volitional nature of the ...


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