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January 31, 1996

PARTY U.S.A., INC.; CHRISTOPHER DOWNEY; KORD PARTY FAVOUR MFY. LTD., defendant; PARTY U.S.A., INC., counter-claimant v. BEISTLE COMPANY, THE, counter-defendant

The opinion of the court was delivered by: CALDWELL

 This action arises from an alleged copyright and trademark infringement by the Defendants upon the Plaintiff's protected materials. We are considering Defendant Christopher Downey's motion to dismiss for lack of personal jurisdiction.

 I. Background

 Plaintiff, The Beistle Company ("Beistle"), is engaged in the business of creating and selling items that have party, holiday, and seasonal motifs. These are then reproduced on or incorporated in decorations and other novelty items. Beistle has applied for and received a certificate of registration from the Register of Copyrights for a subset of its protected material.

 Beistle commenced this action on August 29, 1995 against Party U.S.A., Inc. ("Party U.S.A."), Christopher Downey, the president of Party U.S.A., and Kord Party Favor Mfy. Ltd. ("Kord"). The complaint alleges that the Defendants unlawfully copied Beistle's protected material, and sets forth claims for copyright infringement (Count I); trademark infringement and passing off (Count II); trade dress infringement (Count III); false advertising (Count IV); unfair competition (Count V); and dilution (count VI).

 On October 16, 1995, Downey filed the instant motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(2). He contends that this court lacks personal jurisdiction over him because the only contacts he had with Pennsylvania were in his capacity as an officer/employee of Party U.S.A. Beistle does not dispute that Downey's contacts with Pennsylvania were in his official capacity, but maintains that we may consider those contacts in determining whether in personam jurisdiction exists. We afforded the parties an opportunity to conduct discovery on this issue and the motion is now ripe for disposition.

 II. Law and Discussion

 The defendant bears the initial burden of raising a lack of personal jurisdiction. Fed. R. Civ. P. 12(h). However, once the issue is raised, the burden shifts to the plaintiff, as the party alleging its existence, to establish that the exercise of personal jurisdiction is proper. Carteret Sav. Bank, F.A. v. Shushan, 954 F.2d 141, 146 (3d Cir.), cert. denied, 506 U.S. 817, 113 S. Ct. 61, 121 L. Ed. 2d 29 (1992). Unlike a motion under Rule 12(b)(6), on a motion to dismiss pursuant to Rule 12(b)(2), the plaintiff must "establish[] jurisdictional facts through sworn affidavits or other competent evidence." Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 66 n.9 (3d Cir. 1984). We need not accept the allegations set forth in the complaint as true; rather, a Rule 12(b)(2) motion "requires resolution of factual issues outside the pleadings. . . ." Id.

 A federal court sitting in diversity may exercise personal jurisdiction over a non-resident defendant to the extent permissible under the law of the state in which the court sits. Mellon Bank (East) PSFS, Nat. Ass'n v. Farino, 960 F.2d 1217, 1221 (3d Cir. 1992) (citation omitted). Pennsylvania's long-arm statute provides that Pennsylvania courts may exercise jurisdiction over non-residents "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." 42 Pa.C.S.A. § 5322(b). "Thus, in Pennsylvania the statutory assessment of jurisdiction collapses into the constitutional one", Clark v. Matsushita Elec. Indus. Co., Ltd., 811 F. Supp. 1061, 1065 (M.D.Pa. 1993) (Rambo, C.J.), and the exercise of personal jurisdiction is proper as long as it does not violate due process. See Pennoyer v. Neff, 95 U.S. 714, 24 L. Ed. 565 (1877).

 The Supreme Court has recognized two forms of personal jurisdiction for non-resident defendants: general jurisdiction and specific jurisdiction. See, e.g., Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-15, 104 S. Ct. 1868, 1872, 80 L. Ed. 2d 404, 410-11 (1984). In the case at bar, Plaintiff maintains that this court has specific jurisdiction over Downey. Specific jurisdiction over a non-resident defendant exists "when the plaintiff's 'claim is related to or arises out of the defendant's contacts with the forum." Mellon Bank, 960 F.2d at 1221.

 The Due Process Clause requires that the defendant have "certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95, 102 (1945) (citations omitted). The offspring of International Shoe have further established that, to comport with due process, the "defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there", World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 567, 62 L. Ed. 2d 490, 501 (1980), and "that there be some act by which the defendant purposely avails [himself] 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, 1240, 2 L. Ed. 2d 1283, 1298 (1958).

  In addition, if the defendant has sufficient minimum contacts with the forum state the court may, in its discretion, inquire "whether the assertion of personal jurisdiction would comport with 'fair play and substantial justice.'" Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S. Ct. 2174, 2184, 85 L. Ed. 2d 528, 543 (1985) (quoting International Shoe, 326 U.S. at 320, 66 S. Ct. at 160, 90 L. Ed. at 104). The Supreme Court has identified numerous "fairness factors" that are relevant to this determination, including "the burden on the defendant, the forum State's interest in adjudicating the dispute, the plaintiff's interest in obtaining convenient and effective relief, the interstate judicial system's interest in obtaining the most efficient resolution of controversies, and the shared interest of the several States in furthering fundamental substantive social policies." 471 U.S. at 477, 105 S. Ct. at 2184, 85 L. Ed. 2d at 543 (quoting World-Wide Volkswagen, 444 U.S. at 292, 100 S. Ct. at 564, 62 L. Ed. 2d at 498) (internal quotations omitted).

 In the present case, it is undisputed that Downey had contacts with Pennsylvania, and that this action arose out of those contacts. However, Downey asserts that because his contacts with Pennsylvania were in his capacity as a corporate officer, they should not be considered in the due process analysis. Instead, Downey argues, only contacts made with Pennsylvania in his individual capacity should be considered.

 In Donner v. Tams-Witmark Music Library, Inc., 480 F. Supp. 1229 (E.D.Pa. 1979), the court held that a corporate officer's contacts in his corporate capacity may be factored into the personal jurisdiction analysis when the officer is sued in his individual capacity. The court found that because a corporate officer may be held personally liable for the torts of the corporation where he was personally involved in the tort, "it would be anomalous, and would defeat the purposes of the law creating substantive liability, to permit a corporate officer to shield himself from jurisdiction by means of the corporate entity, when he could not interpose the same shield as a defense against substantive liability." Id. at 1234; see also Hough/Loew Associates, Inc. v. CLX Realty Co., 760 F. Supp. 1141, 1143 (E.D.Pa. 1991); In re Arthur Treacher's Franchisee Litigation, 92 F.R.D. ...

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