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