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 establish
general or specific jurisdiction over the Defendant.
The Defendant is not a resident of Pennsylvania and the
Plaintiffs have not shown that the Defendant's contacts with
Pennsylvania are so "continuous and substantial" that the
Defendant should reasonably expect to be haled into court here on
any cause of action. To the contrary, Plaintiffs have made
insufficient generalized statements instead of presenting
substantial evidence to show general jurisdiction. In Plaintiffs'
response to Defendant's Motion to Dismiss, Plaintiffs argue that
given the amount of commerce which takes place between the states
of New York, New Jersey, and the Commonwealth of Pennsylvania,
and the proximity and commonplace dealings among merchants of the
three states, that the Defendant should have reasonably
anticipated being haled into court in Pennsylvania. Following the
logic of the Plaintiffs' argument, Defendant would have to
anticipate the possibility of being haled into the court of any
nearby state that has a significant amount of commercial dealings
with New York. The Plaintiffs further aver "that Defendant
advertises and/or has advertised in magazine(s) regarding its
services, which magazine(s) have a circulation which includes the
Commonwealth of Pennsylvania, for the purpose of making itself
known in Pennsylvania and/or to attract business in the
Commonwealth of Pennsylvania." The Plaintiffs, however have not
shown any legal benefit or protection of the laws of Pennsylvania
related to these alleged advertisements. Without more, the
alleged advertisements do not constitute "continuous and
substantial" contacts with the forum state. Therefore, this court
lacks general jurisdiction over the Defendant.
We likewise reject the Plaintiff's argument that specific
personal jurisdiction over the Defendant exists by virtue of the
phone calls, faxes, and letters sent by the Defendant to the
Plaintiffs in the Commonwealth of Pennsylvania. In the Third
Circuit, "[i]t is well established that phone calls and letters
are not necessarily sufficient in themselves to establish minimum
contacts." IMO Industries, Inc., 155 F.3d at 260, quoting
Reynolds v. Int'l Amateur Athletic Fed., 23 F.3d 1110, 1119
(6th Cir. 1994). In the present case, not only are the
communications limited in quantity, but there is no direct act of
"entry" into Pennsylvania by anyone from Howard S. Slatkin, Inc.
in connection with this specific action or otherwise. The faxes
were not just sent to Pennsylvania but to California as well, and
the meetings between the
Plaintiffs and the Defendant related to this matter were held in
California and New York, not in Pennsylvania. Therefore, in the
absence of something more, the letters, phone calls, and faxes
exchanged between Plaintiffs and Defendant are insufficient to
establish specific personal jurisdiction.
Plaintiffs have asked that the Court order further discovery,
however the Court finds that further discovery is unnecessary and
would not amount to a different result. Even taking all of
Plaintiffs' allegations as true, the evidence would still be
insufficient to establish general or specific personal
jurisdiction in this Court over the Defendant.
Plaintiffs have requested that upon a finding of lack of
personal jurisdiction that the Court transfer venue to the U.S.
District of California. Under 28 U.S.C. § 1391, a civil action
based on diversity jurisdiction may be brought only in:
(1) a judicial district where any defendant resides, if all
defendants reside in the same State;
(2) a judicial district in which a substantial part of the
events or omissions giving rise to the claim occurred . . .;
(3) a judicial district in which any defendant is subject to
personal jurisdiction at the time the action is commenced, if
there is no district in which the action may otherwise be
brought. 28 U.S.C. § 1391.
Pursuant to 28 U.S.C. § 1406(a), the district court of a
district in which a case is filed laying venue in the wrong
division or district shall dismiss, or if it be in the interests
of justice, transfer such a case to any district or division in
which it could have been brought. A district court may transfer a
case under Section 1406(a) regardless of whether personal
jurisdiction exists over the defendants. Telesis Mergers &
Acquisitions, Inc., v. Atlis Federal SVCS, Inc., 918 F. Supp. 823
(D.N.J. 1996) citing Goldlawr, Inc. v. Heiman, 369 U.S. 463,
465-466, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962). As the Supreme Court
noted in Goldlawr, Section 1406(a) "exists to remove whatever
obstacles may impede an expeditious and orderly adjudication of
cases . . . on their merits." 399 U.S. at 466, 90 S.Ct. 2054.
With the choices being to dismiss this action for lack of
personal jurisdiction or transfer this case, the interests of
justice dictate that transfer is appropriate pursuant to Section
Clearly, venue would be proper in the Southern District of New
York where the Defendant has its principal place of business and
therefore is also subject to personal jurisdiction. In addition,
the contract at issue in this action was formed in New York and a
significant number of the events that triggered the dispute
occurred there. By the Plaintiffs' own admission, the Southern
District of New York is in close proximity to the Commonwealth of
Pennsylvania and therefore would not present a burden to the
Defendant or Plaintiffs. However, venue is also proper in the
California District Court, where the property for which the
Defendant was to provide interior design services is located. The
Defendant has also made reference to previously conducting
business in California. The Court, however, can not determine
whether a district court in California has personal jurisdiction
over the Defendant from these few facts. Therefore, under the
section 1406(a) mandate that a district court can only transfer a
case to another district if the other district has personal
jurisdiction, this court can not transfer the case to a
California District Court.
Having found that this court lacks personal jurisdiction over the
defendant in this action and that both jurisdiction and venue do
lie in the U.S. District Court for the Southern District of New
York, we now transfer this matter to that Court in accordance
with 28 U.S.C. § 1406.
An appropriate order follows.
AND NOW, this 13th day of July, 2000, upon consideration of
to Dismiss Plaintiffs' Complaint and Plaintiffs' Response
thereto, it is hereby ORDERED that the Motion is GRANTED in PART
and DENIED in PART and this case is hereby TRANSFERRED to the
U.S. District Court for the Southern District of New York
pursuant to 28 U.S.C. § 1406(a) and for the reasons set forth in
the preceding Memorandum Opinion.
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