The opinion of the court was delivered by: Joyner, District Judge.
Defendant Howard S. Slatkin, Inc., moves to dismiss this action
for lack of in personam jurisdiction pursuant to Fed. R.Civ.P.
12(b)(2). Plaintiffs request that if the Court determines that it
does not have personal jurisdiction over the Defendant that the
Court, in the proper exercise of its discretion and in the
interests of justice, transfer this action to a California
Plaintiffs, Edward M. Snider and Martha Snider, are residents
of the Commonwealth of Pennsylvania. In June of 1995, Plaintiffs
purchased property at 1627 East Valley Road, Montecito, Santa
Barbara County, California. Soon after the purchase of the
property, Plaintiff sought the professional services of the
interior design firm, Defendant Howard S. Slatkin, Inc., a New
York corporation with its principal place of business in New York
City. On August 26, 1997, Plaintiffs entered into a contract with
the Defendant for interior design services to be provided by the
Defendant for the Plaintiffs' property in California. Under the
terms of the "Letter of Agreement," Plaintiffs were required to
pay the Defendant a $200,000 retainer. Plaintiffs signed the
Letter of Agreement and paid the retainer. On October 16, 1997,
Plaintiffs terminated the services of the Defendant alleging
Defendant had breached its obligations under the Letter of
Agreement, demonstrated bad faith, refused to form a reasonable
budget, and was unable to cooperate with others involved with the
project. A dispute soon arose between the Plaintiffs and the
Defendant over the assessment of costs prior to termination of
the contract and the return of the retainer.
By way of their motion to dismiss, Defendant asserts that it
does not have the requisite minimum contacts with Pennsylvania
such as to permit this Court to exercise jurisdiction over it.
Plaintiffs, however, argue that there is a sufficient basis for
jurisdiction in this forum given that the Defendant advertises in
magazines that are circulated in Pennsylvania, a significant
number of phone calls, faxes, and letters were sent by Defendant
to the Plaintiffs in Pennsylvania relating to this specific
matter, and that given the large amount of commonplace interstate
commerce between New Jersey, New York, and Pennsylvania,
Defendant should have reasonably anticipated being haled into
Standards Applicable to 12(b)(2) Motions
Lack of personal jurisdiction is a waivable defense under
Fed.R.Civ.P. 12(h)(1) and therefore the defendant must raise lack
of personal jurisdiction by filing a motion to dismiss under
Fed.R.Civ.P. 12(b)(2). See, Santana Products, Inc. v. Bobrick
Washroom Equipment, 14 F. Supp.2d 710, 712-713 (M.D.Pa. 1998).
"Once the defense is raised, however, the burden shifts to the
plaintiff to establish, by a preponderance of the evidence,
sufficient facts demonstrating the court's jurisdiction."
Carteret Savings Bank, FA v. Shushan, 954 F.2d 141, 146 (3d
Cir. 1992), cert. denied, 506 U.S. 817, 113 S.Ct. 61, 121 L.Ed.2d
29 (1992). To prove jurisdiction is proper, the plaintiff must
present a prima facie case by "establishing with reasonable
particularity sufficient contacts between the defendant and the
forum state." Mellon Bank (East) PSFS, National Association v.
Farino, 960 F.2d 1217, 1223 (3d Cir. 1992), citing Provident
Nat'l Bank, 819 F.2d 434, 437 (3d Cir. 1987). A Rule 12(b)(2)
motion "requires resolution of factual issues outside the
pleadings, i.e., whether in personam jurisdiction actually lies."
Time Share Vacation Club v. Atlantic Resorts, Ltd.,
735 F.2d 61, 66 (3d Cir. 1984). The plaintiff may not merely rely on the
bare pleadings in order to withstand a defendant's 12(b)(2)
motion to dismiss for lack of personal jurisdiction; in light of
the motion, the plaintiff must respond with actual proofs not
mere allegations. Clark v. Matsushita Electric Industrial
Co., Ltd., 811 F. Supp. 1061, 1064 (M.D.Pa. 1993).
"Whether a federal court has personal jurisdiction over an
out-of-state defendant depends upon the forum's long arm
jurisdiction and due process considerations." Pennzoil Products
Company v. Colelli & Associates, Inc., 149 F.3d 197, 200 (3d
Cir. 1998), citing Mellon Bank (East) PSFS, N.A., 960 F.2d at
1221. Rule 4(e) authorizes jurisdiction to be exercised over
non-resident defendants to the fullest extent allowed under the
law of the state where the district court sits. Mesalic v.
Fiberfloat Corp., 897 F.2d 696, 698 (3rd Cir. 1990).
Pennsylvania's long arm statute extends personal jurisdiction to
"the fullest extent allowed under the Constitution of the United
States." 42 PA.C.S. 5322(b). The Court of Appeals explained the
process of determining personal jurisdiction in IMO Industries,
Inc. v. Kiekert AG, 155 F.3d 254, 259 (3d Cir. 1998): "a federal
court sitting in diversity must undertake a two-step inquiry.
First, the court must apply the relevant state long-arm statute
to see if it permits the exercise of personal jurisdiction; then,
the court must apply the precepts of the Due Process Clause of
the Constitution. In [Pennsylvania], this inquiry is collapsed
into a single step because the . . . long-arm statute permits the
exercise of personal jurisdiction to the fullest limits of due
Pursuant to the Fourteenth Amendment's Due Process Clause,
personal jurisdiction exists where the plaintiff demonstrates
that the defendant has purposely 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). Pennsylvania's long arm
statute includes both general and specific jurisdiction over
out-of-state defendants. 42 Pa.C.S. 5301, 5322.
To assert general jurisdiction over a nonresident, a plaintiff
must establish that a defendant's contacts with the forum state
are so "continuous and substantial" with the forum state that the
defendant should reasonably expect to be haled into court there
on any cause of action. Helicopteros Nacionales de Colombia,
S.A. v. Hall, 466 U.S. 408, 414-16, 414 n. 9, 104 S.Ct. 1868, 80
L.Ed.2d 404 (1984); Provident Nat'l Bank v. California Fed. Sav.
& Loan Ass'n, 819 F.2d 434, 437 (3d Cir. 1987). For general
jurisdiction to exist, the defendant must have purposely availed
itself of the benefits and protections of the laws of the forum
in which plaintiff seeks to establish personal jurisdiction. See
Burger King Corp., 471 U.S. at 475, 105 S.Ct. 2174; World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 299, 100 S.Ct. 559,
62 L.Ed.2d 490 (1980); Hanson v. Denckla, 357 U.S. 235, 253, 78
S.Ct. 1228, 2 L.Ed.2d 1283 (1958). This Circuit has consistently
held that, without more, advertising in national publications
"does not constitute `continuous and substantial' contacts with
the forum state." See Weber v. Jolly Hotels, 977 F. Supp. 327,
333 (D.N.J. 1997), citing Gehling v. St. George's School of
Medicine, 773 F.2d 539, 542 (3d Cir. 1985) and Hearst Corp. v.
Goldberger, 1997 WL 97097 at *10; see also Giangola v. Walt
Disney World Co., 753 F. Supp. 148, 156 (D.N.J. 1990).
Specific jurisdiction may arise when particular or infrequent
contacts by the defendant with the forum state are related to
plaintiff's claim. Pennzoil Products Co., 149 F.3d at 200. For
specific jurisdiction to exist, "plaintiff must satisfy a two
part test. First, the plaintiff must show that the defendant has
constitutionally sufficient `minimum contacts' with the forum."
IMO Industries, Inc., 155 F.3d at 259 quoting Burger King
471 U.S. at 474, 105 S.Ct. 2174. "Second, for jurisdiction to be
exercised, the court must determine, in its discretion, that to
do so would comport with traditional notions of `fair play and
substantial justice.'" IMO Industries, Inc., 155 F.3d at 259,
quoting Vetrotex Certainteed Corp. v. Consolidated Fiber Glass
Products Co., 75 F.3d 147, 150-151 (3d Cir. 1996). A defendant
may be found to have purposefully established minimum contacts
with a forum state by deliberately engaging in significant
activities or by creating continuing obligations such that he has
"availed himself of the privilege of conducting business there."
Arch v. The American Tobacco Company, Inc., 984 F. Supp. 830,
835 (E.D.Pa. 1997). The use of interstate facilities such as the
telephone, mail, or fax is an ancillary factor and therefore does
not provide the minimum contacts required by due process.
Scullin Steel Co. v. National Railway Utilization Corp.,
676 F.2d 309, 314 (8th Cir. 1982). Among the factors that are
considered are the burden on the defendant, the interests of the
forum state, the plaintiff's interest in obtaining 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. Asahi Metal Industry Co., 480 U.S. at 113, 107 S.Ct.
Plaintiffs in the case at bar contend that this Court has both
general and specific jurisdiction over the Defendant. We
disagree. Plaintiffs have not met their burden to ...