with traditional notions of fair play and substantial justice."
Id. (quotations omitted).
As noted above, for "minimum contacts" to be present the
defendant must have purposely availed itself of the privilege of
acting within the forum state, thus invoking the benefits and
protections of forum law, such that it could have reasonably
anticipated being haled into court there. See Burger King Corp.
v. Rudzewicz, 471 U.S. at 475, 105 S.Ct. at 2183. Rosenstein
avers that its tort cause of action arose from BBI's sales of
strawberries to Pennsylvania purchasers, and in particular from
BBI's infliction of tortious injury on a Pennsylvania-based
corporation. Since it is undisputed that BBI's only contacts with
Pennsylvania are its sales of strawberries and the business
effects of its alleged defamation, specific jurisdiction will
hinge on whether these constitute "minimum contacts."
In Calder v. Jones, the Supreme Court demonstrated how the
in-state effects of an out-of-state intentional tort are to be
treated in the minimum contacts analysis. 465 U.S. 783, 104 S.Ct.
1482, 79 L.Ed.2d 804 (1984). "Generally speaking, under Calder
an intentional tort directed at the plaintiff and having
sufficient impact on it in the forum may suffice to enhance
otherwise insufficient contacts with the forum such that the
`minimum contacts' prong of the Due Process test is satisfied."
IMO, 155 F.3d at 260. Consequently, this court must first
consider whether BBI's strawberry sales in Pennsylvania are
sufficient for minimum contacts; then, only if they do not
constitute minimum contacts must Calder be applied.
BBI's Pennsylvania strawberry sales do not provide the minimum
contacts required for due process. BBI sells just .04% — .05% of
its produce to Pennsylvania purchasers. This small amount of
business is not sufficient to put BBI on notice that it might be
haled into court in Pennsylvania. Nor does BBI have any person,
instrumentality, bank account, property or business operation
within the state of Pennsylvania. (Doc. 6.) "In judging minimum
contacts, a court properly focuses on `the relationship among the
defendant, the forum, and the litigation.'" Calder, 465 U.S. at
788, 104 S.Ct. at 1486 (quoting Shaffer v. Heitner,
433 U.S. 186, 204, 97 S.Ct. 2569, 2579, 53 L.Ed.2d 683 (1977)). While
conducting .05% of its business within Pennsylvania might allow
BBI to reasonably anticipate being haled into court there to
defend a suit based on contaminated strawberries, or one for
breach of the contract under which the strawberries were
delivered to Pennsylvania, it is not enough to put BBI on notice
that it might be compelled to answer in Pennsylvania for a
separate act of libel performed in Florida. Other courts have
held likewise on similar facts. See, e.g, Orange Products, Inc.
v. Winters, 1995 WL 118461 (E.D.Pa.) (no specific jurisdiction
in employment dispute despite fact that defendant sold 2.7% of
its precision plastic balls within Pennsylvania); Romann v.
Geissenberger Mfg. Corp., 865 F. Supp. 255 (E.D.Pa. 1994) (no
specific jurisdiction over employment dispute despite fact that
defendant GMC made 2% — 4% of its auto-related sales within
Pennsylvania); Allied Leather Corp. v. Altama Delta Corp.,
785 F. Supp. 494 (M.D.Pa. 1992) (no specific jurisdiction in suit over
breach of leather purchase contract, despite fact that defendant
sold 1% of its footwear in Pennsylvania). Because BBI's sole
contacts with Pennsylvania — its sale of .05% of its goods to
Pennsylvania purchasers — would not allow it to reasonably
anticipate being haled into a Pennsylvania court to defend a
separate action performed in Florida, such sales do not
themselves constitute minimum contacts.
This court must now apply Calder v. Jones to determine if the
Pennsylvania effect of BBI's alleged Florida tort can enhance
BBI's otherwise insufficient contacts. See IMO, 155 F.3d at
260. Calder involved facts somewhat akin to those in the
instant case. There, actress Shirley
Jones brought a libel action against the editor of The National
Inquirer after that publication ran an article alleging that
Jones suffered from an alcohol problem. Calder had made no
contact with the forum state California other than to travel
there twice on unrelated matters. Further, the reporter who
authored the article did the bulk of his research in Florida,
merely phoning California for additional information. The sum of
Calder's contacts with California were the approximately 600,000
copies of the Inquirer that were sold there weekly, and the
effects of the alleged libel on Jones, a California resident.
See Calder, 465 U.S. at 784-86, 104 S.Ct. at 1484-85. The Court
found personal jurisdiction, noting:
The allegedly libelous story concerned the California
activities of a California resident. It impugned the
professionalism of an entertainer whose television
career was centered in California. The article was
drawn from California sources and the brunt of the
harm, in terms of both respondent's emotional
distress and the injury to her professional
reputation, was suffered in California. In sum,
California is the focal point both of the story and
of the harm suffered. Jurisdiction over petitioners
is therefore proper in California based on the
"effects" of their Florida conduct in California. . .
. [T]heir intentional, and allegedly tortious,
actions were expressly aimed at California. . . .
Under the circumstances, petitioners must "reasonably
anticipate being haled into court there."
Calder, 465 U.S. at 788-90, 104 S.Ct. at 1486-87. Based on this
language the Third Circuit has stated that a plaintiff invoking
the Calder effects test "must show the following: 1) The
defendant committed an intentional tort; 2) The plaintiff felt
the brunt of the harm in the forum such that the forum can be
said to be the focal point of the harm suffered by the plaintiff
as a result of the tort; 3) The defendant expressly aimed his
tortious conduct at the forum such that the forum can be said to
be the focal point of the tortious activity." IMO Industries,
155 F.3d at 265-66.
The present case is distinguishable from Calder, and its
differences from Calder make it impossible for Rosenstein to
satisfy the Third Circuit's three-part effects test. First,
Rosenstein has not felt the brunt of the harm in Pennsylvania
such that Pennsylvania can be said to be the focal point of that
harm, as the second prong of the effects test requires. In
Calder, it was critical that Jones' television career, indeed
the entire television industry, was centered in California.
Consequently, the bulk of the people with whom Jones was required
to work were located in California. As a result, despite the fact
that the Inquirer was distributed nation-wide, the brunt of the
harm to Jones' career was suffered in California.
In the instant case, however, BBI sent the allegedly libelous
facsimile to other strawberry sellers located in Florida. It is
clear that this facsimile would cause Rosenstein the greatest
injury in Florida, among those from whom Rosenstein must purchase
strawberries and other produce. Further, unlike in Calder,
where 600,000 copies of the allegedly libelous article were sent
to the forum state, here only one copy of the facsimile was sent
into Pennsylvania, and that one to Rosenstein itself. Therefore,
while Rosenstein may well suffer some harm within Pennsylvania,
it is not true that it "felt the brunt of the harm in the forum
such that the forum can be said to be the focal point of the
harm." IMO Industries, 155 F.3d at 265-66. The focal point of
Rosenstein's harm lies in Florida.
Rosenstein is also unable to satisfy the third prong of the
effects test, which requires that it prove that BBI "expressly
aimed" its tortious conduct at Pennsylvania such that
Pennsylvania can be said to be the focal point of the tortious
activity. The defendants in Calder sent more than twice as many
copies of the allegedly defamatory
article into California than they sent into any other state. See
Calder, 465 U.S. at 785, 104 S.Ct. at 1484. Further, they knew
that the brunt of the harm would be felt in California. See
Calder, 465 U.S. at 788-90, 104 S.Ct. at 1486-87.
This same is not true in the present case. BBI did not send the
facsimile to anyone in Pennsylvania other than Rosenstein itself.
Rather, the facsimile was directed to sixteen strawberry sellers
located in the Tampa, Florida area. In addition, BBI would have
reasonably expected the resulting harm to Rosenstein to be
centered among Florida produce vendors. Thus Rosenstein cannot
show that BBI "expressly aimed" its allegedly tortious conduct at
Pennsylvania such that Pennsylvania can be said to be the focal
point of the tortious activity, as the third prong of the effects
Because Rosenstein is unable to satisfy the requirements of the
effects test, the in-state effects of BBI's out-of-state act
cannot enhance BBI's otherwise insufficient contacts. Therefore
Rosenstein has failed to show BBI's minimum contacts with
Pennsylvania, so that the exercise of specific jurisdiction over
BBI by this court would offend the Due Process Clause of the
II. General Jurisdiction
As noted above, even when the plaintiff's cause of action does
not "arise out of" the foreign defendant's activities within the
forum, general jurisdiction over that defendant is appropriate
where it has "continuous and systematic" contacts with the forum.
See Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408,
414, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 (1984). The Third
Circuit has held "that the plaintiff must show significantly more
than minimum contacts to establish general jurisdiction. The
nonresident's contacts must be continuous and substantial."
Provident Nat'l Bank v. California Federal Savings & Loan
Ass'n, 819 F.2d 434, 437 (3d Cir. 1987) (citations omitted).
See also Bancroft & Masters, Inc. v. Augusta National Inc.,
223 F.3d 1082, 1086 (9th Cir. 2000) ("The standard for establishing
general jurisdiction is `fairly high,' and requires that
defendant's contacts be of the sort that approximate physical
As BBI's lacks even "minimum contacts" with Pennsylvania, a
fortiori it lacks "continuous and substantial" contacts with the
Commonwealth. It would be patently unfair to allow any and all
plaintiffs to sue BBI in Pennsylvania, simply because BBI makes a
small part of its strawberry sales to Pennsylvania purchasers. As
the Ninth Circuit has noted, "engaging in commerce with residents
of a forum state is not in and of itself the kind of activity
that approximates physical presence within the state's borders."
Bancroft, 223 F.3d at 1086. Further, where the plaintiff may
easily secure specific jurisdiction over the defendant in the
state where the cause of action arose, general jurisdiction is
not necessary and courts should err on the side of finding no
[B]ecause specific jurisdiction has expanded
tremendously, plaintiffs now may generally bring
their claims in the forum in which they arose. As a
result, obsolescing notions of general jurisdiction,
which functioned primarily to ensure that a forum was
available for plaintiffs to bring their claims, have
been rendered largely unnecessary. Thus, broad
constructions of general jurisdiction should be
Nichols v. G.D. Searle & Company, 991 F.2d 1195, 1199 (4th Cir.
1993). Here, Rosenstein should have little trouble securing
jurisdiction over BBI in Florida. But the Due Process Clause will
not permit general jurisdiction to lie in this court, as BBI's
contacts with Pennsylvania cannot be fairly characterized as
"continuous and substantial."*fn2
Plaintiff Rosenstein has not met its burden of proving that
this court has in-personam jurisdiction, either specific or
general, over Defendant BBI. Rosenstein has placed great reliance
on the assertion that BBI "is a large shipper of strawberries"
which "sells strawberries throughout Pennsylvania." (Doc. 8 ¶ 3.)
This fact, however, will not suffice to enable this court to
assert personal jurisdiction over BBI. Plaintiff states in its
brief that "[i]f the court needs further evidence of Defendant's
ongoing Pennsylvania enterprise, Plaintiff fully believes that
two (2) depositions, five interrogatories and a document request
would establish the necessary contact by Defendant with
Pennsylvania." (Brief in Opposition to Defendant's Motion, Doc. 7
at 9.) While it is true that a plaintiff should be allowed
discovery of relevant jurisdictional facts, see Renner, 33 F.3d
at 283, Rosenstein has not made a proffer explaining what it
wishes to discover and how this would help overcome the great
weight of evidence supporting a finding that this court lacks
jurisdiction. Therefore, this court declines to permit discovery
on the issue of jurisdiction.
As Plaintiff Rosenstein has failed to carry its burden of
proving that this court may extend personal jurisdiction over
Defendant BBI consistently with the Due Process Clause of the
Fourteenth Amendment, Defendant's motion to dismiss under Rule
12(b)(2) will be granted. An appropriate order will follow.