The opinion of the court was delivered by: RAMBO
Before the court are motions to dismiss filed by Defendants Maktas Makarnacilik ve Ticaret T.A.S. ("Maktas") and Filiz Gida Sanayii ve Ticaret A.S. ("Filiz"). Both Defendants are Turkish corporations, and both allege that this court lacks personal jurisdiction over them. Because both motions raise similar issues, the court will consider the motions together. All briefing is complete, and the motions are ripe for disposition.
The captioned action, filed on February 15, 1995, is brought pursuant to section 43 (a) of the Lanham act, 15 U.S.C. § 1125(a).
Plaintiff alleges that Defendants have falsely labeled their pasta products as "one hundred percent durum semolina" pasta. The American Defendants, Vitelli-Elvea Co., Inc. ("Vitelli") and Fentex International Corp. ("Fentex") import and distribute pasta manufactured by the Turkish Defendants, Maktas and Filiz. On February 15, 1995, Plaintiff filed a motion for preliminary injunction seeking to enjoin sales of the allegedly mislabeled pasta. After conducting a hearing on the motion, the court denied Plaintiff's motion. Hershey Pasta Group v. Vitelli-Elvea Co., Inc., No. 1:CV-95-0231 (M.D. Pa. May 23, 1995).
The Turkish Defendants have now filed motions to dismiss claiming that this court lacks personal jurisdiction over them.
In ruling on a motion to dismiss for lack of in personam jurisdiction pursuant to Rule 12(b) (2) of the Federal Rules of Civil Procedure, this court must accept as true the allegations in the complaint, and resolve any factual disputes in favor of the plaintiff. North Penn Gas Co. v. Corning Natural Gas Corp., per curiam, 897 F.2d 687, 689 (3d Cir.), cert. denied, 498 U.S. 847, 111 S. Ct. 133, 112 L. Ed. 2d 101 (1990). Nevertheless, it is the plaintiff who bears the burden of demonstrating, by a preponderance of the evidence, facts sufficient to establish personal jurisdiction. Provident Nat. Bank v. California Fed. Sav. & Loan Ass'n., 819 F.2d 434, 436-37 (3d Cir. 1987); Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 65 (3d Cir. 1984).
Because the Lanham Act does not authorize national service of process, the court must look to the laws of the Commonwealth of Pennsylvania to determine whether it may exercise personal jurisdiction over the instant non-resident corporate Defendants. Fed. R. Civ. P. 4(e). The Pennsylvania long-arm statute permits state courts to exercise in personam jurisdiction "to the fullest extent allowed under the Constitution of the United States." 42 Pa. Cons. Stat. Ann. § 5322(b) (Purdon's 1981). "Therefore, . . . [the] inquiry is solely whether the exercise of personal jurisdiction over the defendant would be constitutional." Renner v. Lanard Toys Ltd., 33 F.3d 277, 279 (3d Cir. 1994). "'The constitutional touchstone' of the determination whether an exercise of personal jurisdiction comports with due process 'remains whether the defendant purposefully established "minimum contacts" in the forum state.'" Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 108-09, 94 L. Ed. 2d 92, 107 S. Ct. 1026 (1987) (quoting Burger King v. Rudzewicz, 471 U.S. 462, 474, 85 L. Ed. 2d 528, 105 S. Ct. 2174 (1985)). Where, as in the instant matter, the "stream of commerce" theory
is invoked to establish minimum contacts, the applicable legal precedent is somewhat murky.
Although it has confronted the issue, the Supreme Court has yet to speak decisively on the "stream of commerce" theory. In Asahi, a unanimous Supreme Court reversed the California Supreme Court's affirmance of a lower court's exercise of personal jurisdiction over a non-resident corporation. The Court, however, was divided in its discussion of the "stream of commerce" theory. Writing for the plurality, Justice O'Connor indicated that in addition to merely placing a product in the stream of commerce other conduct, demonstrating an intent to introduce a product into the market of the forum state, "is needed before personal jurisdiction can be exercised over the defendant." Renner v. Lanard Toys, Ltd, 33 F.3d 277, 281 (3d Cir. 1994) (citing Asahi, 480 U.S. at 112). The contrary, Justice Brennan, concurring on behalf of four Justices, noted that a simple awareness that a product is being marketed in the forum state would be sufficient to establish minimum contacts. Id. at 281-82 (citing Asahi, 408 U.S. at 117). Finally, in a separate concurrence, Justice Stevens claimed that the Court's determination regarding whether there was "purposeful availment" should have been influenced by the "volume, the value, and the hazardous character of the components" at issue. Id. at 282 (citing Asahi, 408 U.S. at 122).
Noting that "the distinction between Justices O'Connor's view and Justice Stevens' may be a subtle one, [perhaps] requiring another Supreme Court decision to flesh out the lines between them," the Third Circuit appears to have adopted the approach of a number of other Circuit Courts and "avoid[ed] taking a position on the current status [of the stream of commerce theory], [and] attempting when possible to decide the case on the basis of the facts on record." Renner, 33 F.3d at 282 (citing cases indicating that the Federal, Fifth, Sixth, Eighth, Ninth and Eleventh Circuits have adopted this approach). Unfortunately, with the instant matter, the court finds it impossible to avoid entirely consideration of the stream of commerce theory. To the extent possible, the court will make its decision on the basis of the facts of record. Where an evaluation of the stream of commerce theory is necessary, the court will rely heavily on dicta in the Third Circuit's opinion in Max Daetwyler Corp. v. R. Meyer, 762 F.2d 290 (3d Cir. 1985).
Defendants Maktas and Filiz are Turkish corporations with their respective principle places of business in Turkey. (Amd. Comp. at PP 4-5.) Both distribute their pasta products within the United States through American distributors. (Amd. Comp. at PP 33-35, 37-39.) Defendant Maktas distributes its pasta products through Vitelli, a New Jersey corporation with its principle place of business in New Jersey. (Amd. Comp. at P 2; Amd. Answ. of Def. Vitelli at P 2.) The imported Maktas pasta products are sold under the trade name "Luigi Vitelli." (Amd. Comp. at P 19.) Similarly, Defendant Filiz distributes its pasta products through Defendant Fentex, a New York corporation with its principle place of business in New York. (Def. Filiz's Brief in Support of Motn. to Dismiss at 4 n.1.) Filiz's pasta products are sold in the United States under the brand name "Portella." (Amd. Comp. at P 36.) Both "Luigi Vitelli" and "Portella" pasta packages indicate that the products are registered to be sold in Pennsylvania. (Amd. Comp. at Ex. 10 ("Luigi Vitelli" packaging reads "Registered Dept. of Agriculture and State of Pennsylvania MMV"); id. at Ex. 11 ("Portella" packaging reads "Reg. Penna. Dept. Agr. MMV").) The threshold issue for the court is whether Defendants Maktas and Filiz, by their distribution of pasta products through Defendants Vitelli and Fentex, have the requisite minimum contacts with the Commonwealth of Pennsylvania to justify this court's exercise of jurisdiction over them.
A. Defendants' Contacts With Pennsylvania
In reaching their ultimate decision, the Third Circuit distinguished a number of "stream of commerce" cases where lower courts had found a basis ...