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NATIONAL PAINTBALL SUPPLY v. COSSIO

March 12, 1998

NATIONAL PAINTBALL SUPPLY, INC.
v.
LARRY COSSIO and MARCELA COSSIO, d/b/a NATIONAL PAINTBALL ASSOCIATION



The opinion of the court was delivered by: JOYNER

 JOYNER, J.

 By way of the instant motion, Defendants Larry and Marcela Cossio, doing business as National Paintball Association, seek to have the complaint against them dismissed for lack of in personam jurisdiction and/or insufficient venue pursuant to Fed.R.Civ.P. 12(b)(2). Alternatively, defendants ask that this action be transferred for improper venue and convenience to the U.S. District Court for the Southern District of California. For the reasons which follow, the motions shall be denied.

 Statement of Facts

 Plaintiff, National Paintball Supply, Inc. ("NPS") is a New Jersey corporation with its principal place of business located at 670 Route 45 in Mantua, New Jersey. NPS is in the business of distributing paintball guns, gear and related accessories for use in the sport of paintball. (Pl's Complaint, Ps1, 11, 14). *fn1" Defendants Larry and Marcela Cossio are California residents who are in the business of selling insurance to paintball field owners, store owners, tournament sponsors and team members under the title of National Paintball Association ("NPA"). (Pl's Complaint, Ps3, 24-25).

 Plaintiff claims that in operating under and using the name "National Paintball Association," defendants have infringed upon its name and service mark in violation of, inter alia, the Lanham Act, 15 U.S.C. § 1125, et. seq., federal common law and Pennsylvania statutory and common law. (Pl's Complaint, Ps5, 26-31). Jurisdiction is premised upon the fact that both plaintiff and defendants, "upon information and belief, do business in Pennsylvania, including in the Eastern District of Pennsylvania."

 (Pl's Complaint, Ps 4-7).

 Standards Governing Rule 12(b)(2) Motions

 A defendant bears the initial burden of raising lack of personal jurisdiction because it is a waivable defense under Fed.R.Civ.P. 12(h)(1). Clark v. Matsushita Electric Industrial Co., Ltd., 811 F. Supp. 1061, 1064 (M.D.Pa. 1993). In deciding a motion to dismiss for lack of personal jurisdiction, the allegations of the complaint are taken as true; however, once the defense is raised, the burden shifts to the plaintiff to prove that the exercise of jurisdiction is permissible. Rose v. Granite City Police Department, 813 F. Supp. 319, 321 (E.D.Pa. 1993); Jaffe v. Julien, 754 F. Supp. 49, 51 (E.D.Pa. 1991). The plaintiff cannot rely on the bare pleadings alone, but must sustain his burden of proof by establishing with reasonable particularity sufficient contacts between the defendant and the forum state to support jurisdiction through sworn affidavits or other competent evidence. Carteret Savings Bank, FA v. Shushan, 954 F.2d 141, 146 (3rd Cir. 1992), citing, inter alia, Provident National Bank v. California Fed. Savings & Loan Ass'n, 819 F.2d 434 (3rd Cir. 1987); Rose v. Granite City, supra, at 321 citing Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61 (3rd Cir. 1984).

 Discussion

 The Supreme Court has long recognized that the due process clause protects an individual's liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful contacts, ties or relations. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-472, 105 S. Ct. 2174, 2181, 85 L. Ed. 2d 528 (1985); International Shoe Co. v. Washington, 326 U.S. 310, 319, 66 S. Ct. 154, 160, 90 L. Ed. 95 (1945). It has been said that Rule 4(e) of the Federal Rules of Civil Procedure is the appropriate starting point for jurisdictional analysis, as the rule authorizes personal jurisdiction over non-resident defendants to the extent permissible under the law of the state where the district court sits. Mellon Bank (East) National Association v. Farino, 960 F.2d 1217, 1221 (3rd Cir. 1992) citing Mesalic v. Fiberfloat Corp., 897 F.2d 696, 698 (3rd Cir. 1990). Under Pennsylvania's long-arm statute, 42 Pa.C.S. § 5322(b), the courts are permitted to exercise personal jurisdiction over non-resident defendants to the constitutional limits of the due process clause of the fourteenth amendment. Mellon Bank (East) PSFS v. DiVeronica Bros., Inc., 983 F.2d 551, 554 (3rd Cir. 1993); Farina, at 1221. 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 or purposely directed its activities toward residents of the forum state. Asahi Metal Industry Co., Ltd. v. Superior Court of California, 480 U.S. 102, 108, 107 S. Ct. 1026, 1030, 94 L. Ed. 2d 92 (1987). The determination of whether minimum contacts exist requires an examination of "the relationship among the forum, the defendant and the litigation." Vetrotex Certainteed Corporation v. Consolidated Fiber Glass Products Co., 75 F.3d 147, 150 (3rd Cir. 1995), citing Shaffer v. Heitner, 433 U.S. 186, 204, 97 S. Ct. 2569, 2580, 53 L. Ed. 2d 683 (1977). Hence, there must first be "some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws" for personal jurisdiction to attach. Id., quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 1240, 2 L. Ed. 2d 1283 (1958). Then, if sufficient "minimum contacts are shown, jurisdiction may be exercised where the court determines in its discretion that to do so would comport with traditional notions of fair play and substantial justice." Id., quoting International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945; Farino, 960 F.2d at 1222.

 Personal jurisdiction has been further categorized as either specific or general. If the plaintiff's cause of action arises out of a defendant's forum-related activities, such that the defendant should reasonably anticipate being haled into court there, that defendant may be subject to the state's jurisdiction under the concept of "specific jurisdiction." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 567, 62 L. Ed. 2d 490 (1980); Vetrotex, 75 F.3d at 151, Clark v. Matsushita, 811 F. Supp. at 1065. "General jurisdiction" is invoked when the plaintiff's cause of action arises from the defendant's non-forum related activities. To establish general jurisdiction, the plaintiff must show that the defendant has maintained continuous and systematic contacts with the forum. Vetrotex, at 151 citing, inter alia, North Penn Gas Co. v. Corning Natural Gas Corp., 897 F.2d 687, 690, n. 2 (3rd Cir. 1990), Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414, n. 9, 104 S. Ct. 1868, 1872, n. 9, 80 L. Ed. 2d 404 (1984).

 In this regard, the record reflects that defendants' contacts with the Commonwealth of Pennsylvania consist of Larry Cossio having participated in and co-sponsored the annual trade shows in Pittsburgh and Philadelphia for the last two years as the representative of National Paintball Association and the sale of an insurance policy to the Three Rivers Paintball Field in Freedom, Pennsylvania. (Exhibits "G," "H" to Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Dismiss). Although defendants have denied that Larry Cossio solicited any business on behalf of NPA at any of these trade shows, they have admitted that he gave advice concerning liability insurance and that he intends to participate in upcoming Philadelphia and Pittsburgh conferences. While this evidence is scant, insurance counseling and sales is NPA's business. We therefore find that the giving of advice regarding insurance, taken together with NPA's co-sponsorship of the Philadelphia and Pittsburgh conferences and the sale of at least one insurance policy to a Pennsylvania resident, demonstrates that defendants have purposefully directed their activities toward Pennsylvania residents so as to ...


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