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RESNICK v. MANFREDY

April 29, 1999

BERNARD M. RESNICK, ESQ.
v.
ANGEL MANFREDY, JOHN MANFREDY, JEFFREY H. BROWN, ESQ., AND D'ANCONA & PFLAUM



The opinion of the court was delivered by: Joyner, District Judge.

 
                             AMENDED MEMORANDUM
                                 AND ORDER

Defendants have moved to dismiss this action for lack of in personam jurisdiction and for failure to state a claim upon which relief may be granted pursuant to Fed. R.Civ.P. 12(b)(2) and (6). Alternatively, they argue that venue in this district is improper and request that this matter be transferred to the Northern District of Illinois. For the reasons which follow, the motion is granted in part and denied in part.

History of the Case

Bernard Resnick is "a well-known and reputed attorney engaged in the practice of sports and entertainment law" who has been licensed to practice law in Pennsylvania and the District of Columbia since 1987.*fn1 This action (like the Remick matter) arises out of a now-terminated fee agreement which Angel Manfredy entered into with Plaintiff Resnick's colleague, Lloyd Remick on to act as lightweight boxer Angel Manfredy's special counsel/sports agents in the procurement, negotiation and drafting of boxing, promotions and endorsement agreements.

According to the plaintiff's complaint in this case, they were retained by Manfredy in large part because his current counsel, Defendant Brown, an associate attorney with the defendant law firm D'Ancona & Pflaum, had little experience in drafting and/or negotiating boxing agreements. (Pl's Compl., ¶ 14). Mr. Brown is alleged to have represented Angel Manfredy in negotiating the fee agreement with Remick and his then-law firm, Burditt & Radzius in an arms-length transaction. (Complaint, ¶ 16). In consideration for their services, Remick and Resnick were to receive 5% of Angel Manfredy's boxing compensation up to the first $35,000 received by Manfredy for his first boxing match under the agreement and 8% of his compensation for all matches thereafter. Additionally, Remick and Resnick were to receive 15% of the gross amount earned for any endorsements and appearances which they procured for Manfredy. Then, as between them, Remick and Resnick were to split any fees they received in working for Manfredy 75/25, with Remick receiving 75% and Resnick receiving 25% of the earned income. (Complaint, ¶ s 12, 13, 15). Any fees arising therefrom remained due and owing to Remick and Resnick upon Manfredy's receipt for the duration of any agreement which plaintiff and his colleague negotiated on Manfredy's behalf. (Complaint, ¶ 17).

Despite the fact that Remick and Resnick secured a long-term promotional agreement with Cedric Kushner Promotions and a Future Rights Agreement with Main Events Corporation for Manfredy one month after they were retained to represent him, both of which called for the payment of purses in the minimum amount of $250,000, by letter dated March 2, 1998, Angel Manfredy terminated Remick's services citing a unified lack of strategy and Resnick's allegedly ineffective negotiation skills. (Complaint, ¶ s 18-19). Plaintiff contends that defendants John Manfredy and Jeffrey Brown assisted Angel Manfredy in drafting this letter, prevented plaintiff from speaking with Manfredy directly and otherwise induced Angel Manfredy to terminate his professional relationship with he and Remick. (Complaint, ¶ s 19, 25, 32-33). Plaintiff further alleges that defendants Brown and John Manfredy have made disparaging and untrue comments about him both orally and in writing to third parties including promoter Cedric Kushner and Lou DeBella of Home Box Office for the sole purpose of harming plaintiffs business. (Complaint, ¶ s 30-31). In reliance upon these allegations, plaintiff seeks damages from the defendants for breach of contract, defamation, tortious interference with contractual relations, unfair competition/disparagement and for purported violations of his right to publicity, which claim appears to be in the nature of one for misappropriation of his likeness.

Defendants move, as they did in the Remick action, to dismiss the plaintiffs complaint for lack of personal jurisdiction and proper venue or, alternatively for transfer to the Northern District of Illinois.

                          Standards Applicable to
                              12(b)(2) Motions

Inasmuch as lack of personal jurisdiction is a waivable defense under Fed.R.Civ.P. 12(h)(1), it is incumbent upon the defendant to challenge it by filing a motion to dismiss under Rule 12(b)(2). See, e.g.: Clark v. Matsushita Electric Industrial Co., Ltd., 811 F. Supp. 1061, 1064 (M.D.Pa. 1993). Once done, the burden shifts to the plaintiff to come forward with sufficient facts to establish that jurisdiction is proper. Zippo Manufacturing Company v. Zippo Dot Com., Inc., 952 F. Supp. 1119, 1121 (W.D.Pa. 1997). The plaintiff meets this burden by making a prima facie showing of "sufficient contacts between the defendant and the forum state." Id., quoting Mellon Bank (East) PSFS, N.A. v. Farino, 960 F.2d 1217, 1223 (3rd Cir. 1992) and Carteret Savings Bank, F.A. v. Shushan, 954 F.2d 141, 146 (3rd Cir. 1992).

A Rule 12(b)(2) motion is inherently a matter which requires resolution of factual issues outside the pleadings. Once the defense has been raised, then the plaintiff must sustain its burden of proof in establishing jurisdictional facts through sworn affidavits or other competent evidence. Weber v. Jolly Hotels, 977 F. Supp. 327, 331 (D.N.J. 1997) citing, inter alia, Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 67, n. 9 (3rd Cir. 1984). At no point may a plaintiff rely on the bare pleadings alone in order to withstand, a defendant's Rule 12(b)(2) motion to dismiss for lack of in personam jurisdiction. Once the motion is made, the plaintiff must respond with actual proofs, not mere allegations. Id.

Discussion

Under Fed.R.Civ.P. 4(e), a district court is permitted to assert personal jurisdiction over a non-resident to the extent allowed under the law of the state where the district court sits. Time Share Vacation Club, 735 F.2d at 63. In Pennsylvania, the long-arm statute extends jurisdiction 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." Santana Products, Inc. v. Bobrick Washroom Equipment, 14 F. Supp.2d 710, 713 (M.D.Pa. 1998); 42 Pa.C.S. § 5322(b). In other words, the reach of jurisdiction under Pennsylvania law is coextensive with the Due Process Clause of the United States Constitution. Id.

"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) quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985) and International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945).

There are two theories under which a defendant may be subject to personal jurisdiction. If the plaintiffs 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." WorldWide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980); Santana Products, Inc., supra, at 713; Allied Leather Co. v. Altama Delta Corp., 785 F. Supp. 494, 497 (M.D.Pa. 1992). "General jurisdiction" exists when the plaintiffs 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 ...


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