United States District Court, Eastern District of Pennsylvania
November 22, 2000
CHRISTOPHER POOLE AND WANDA POOLE, PLAINTIFFS,
ALBERT SASSON, DEFENDANT.
The opinion of the court was delivered by: Joyner, District Judge.
This is a breach of contract and accountant malpractice case
brought by Plaintiffs Christopher and Wanda Poole ("Plaintiffs")
against Defendant Albert Sasson ("Defendant"). Presently before
the Court is Defendant's Motion to Dismiss for Lack of In
Personam Jurisdiction. For the reasons that follow, we will grant
This case arises from Defendant's allegedly negligent
preparation of Plaintiffs' federal and state tax returns.
Defendant is a certified public accountant residing and working
in New York. Plaintiffs are a husband and wife who live in
Pennsylvania. From 1975 to 1997, Plaintiffs retained Defendant to
perform yearly accounting services, including the filing of their
state and federal tax returns. In 1997, the Internal Revenue
Service ("IRS") audited Plaintiffs' 1992 and 1993 federal tax
returns, which had been prepared by Defendant. Based on that
audit, the IRS determined that Plaintiffs owed back taxes, plus
penalties and interest, in the amount of $292,740. Plaintiffs now
allege that Defendant breached the contract the parties entered
and negligently performed his accounting services, thereby
proximately causing Plaintiffs' harm.
I. Legal Standard
A defendant bears the initial burden of raising a lack of
personal jurisdiction defense. See Fed.R.Civ.P. 12(h)(1);
National Paintball Supply, Inc. v. Cossio, 996 F. Supp. 459, 460
(E.D.Pa. 1998). Once a defendant has raised a jurisdictional
defense, the burden shifts to the plaintiff to prove that
jurisdiction exists. See Mellon Bank (East) PSFS, N.A. v.
Farino, 960 F.2d 1217, 1223 (3d Cir. 1992). Although all
allegations in the complaint are taken as true, a plaintiff may
not solely rely on bare pleadings to satisfy his jurisdictional
burden. Rather, the plaintiff must offer evidence that
establishes with reasonable particularity sufficient contact
between the defendant and the forum state to support
jurisdiction. See Carteret Savings Bank, F.A. v. Shushan,
954 F.2d 141, 146 (3d Cir. 1992); North Penn Gas Co. v. Corning
Natural Gas Corp., 897 F.2d 687, 689 (3d Cir. 1990).
II. Personal Jurisdiction
Defendant moves to dismiss the Complaint on grounds that this
Court may not exercise personal jurisdiction over him. In
deciding whether personal jurisdiction exists over an
out-of-state defendant, a court must make a two-part inquiry.
First, the court must determine whether the long-arm statute of
the forum state would allow the courts of that state to exercise
jurisdiction over the defendant. See Fed.R.Civ.P. 4(e)(1). If
the forum state would allow jurisdiction, then the court must
determine if exercising personal jurisdiction over the defendant
would be consistent with the Constitution's Due Process Clause.
IMO Indus. v. Kiekert AG, 155 F.3d 254, 259 (3d Cir. 1998).
Because Pennsylvania's long-arm statute is coextensive with the
dictates of the Constitution, see 42 Pa.C.S.A. § 5322(b);
Vetrotex Certainteed Corp. v. Consolidated Fiber Glass Prods.
Co., 75 F.3d 147, 150 (3d Cir. 1996), our jurisdictional inquiry
turns exclusively on whether the exercise of personal
jurisdiction would conform with the Due Process Clause.
There are two distinct bases upon which personal jurisdiction
can be premised — general jurisdiction and specific jurisdiction.
General jurisdiction exists when, regardless of where the
particular events giving rise to the litigation occurred, the
defendant has continuous and systematic contacts with the forum
state. See Helicopteros Nacionales de Colombia v. Hall,
466 U.S. 408, 414 n. 9 & 416, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984).
In contrast, specific jurisdiction exists when the events giving
rise to the action are related to the forum state and the
defendant has minimum contacts with the forum state. Id. at 414
n. 8, 104 S.Ct. 1868.
In this case, Plaintiffs claim that both general and specific
jurisdiction exist. With regard to general jurisdiction,
Plaintiffs offer little argument and make only vague, general
averments. For instance, Plaintiffs state that "[b]eginning
around 1975 to 1997, Defendant was hired on a yearly basis to
perform general accounting services on behalf of Plaintiffs."
(Am. Compl. at ¶ 5). Plaintiffs offer no other detail about what,
if any, contact actually occurred during this time period.
Similarly, Plaintiffs' bald statement that "the unlawful
practices complained of took place in . . . Pennsylvania" appears
wholly unsupported. (Am. Compl. at ¶ 4). Plaintiffs also claim
that the IRS examiner who was overseeing their audit "maintained
continuous contact with Defendant for one year," (Resp. at 4),
but they fail to explain how that fact relates to Defendant's
contact with Pennsylvania. These types of broad generalities by
Plaintiffs fall well short of demonstrating that Defendant has
"continuous and systematic contacts" with the forum state. As a
result, we find that no general jurisdiction exists over
Next, we examine specific jurisdiction and the two-part test
used to determine if this type of personal jurisdiction may be
asserted. To establish specific jurisdiction, a plaintiff first
must demonstrate that the defendant has sufficient "minimum
contacts" with Pennsylvania. See IMO Indus., 155 F.3d at 259
(citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105
S.Ct. 2174, 85 L.Ed.2d 528 (1985)). Minimum contacts exist when
the defendant has "purposefully directed" its activities toward
the forum state. See Burger King Corp., 471 U.S. at 472, 105
S.Ct. 2174. More specifically, the defendant must "purposefully
avail itself of the privilege of conducting activities within
the forum State, thus invoking the benefits and protections of
its laws." Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228,
2 L.Ed.2d 1283 (1958). Second, if minimum contacts exist, the
court must determine if exercising jurisdiction over the
defendant would comport with "traditional notions of fair play
and substantial justice." Vetrotex, 75 F.3d at 150-51 (quoting
Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed.
Here, the contacts between Plaintiffs and Defendant are
undisputed. Plaintiffs initiated the contact with Defendant in
New York. Defendant performed his accounting services in New York
and then mailed the completed forms to Plaintiffs in
Pennsylvania. Beyond that, Defendant's only contact with
Pennsylvania was several phone calls to Plaintiffs regarding
their tax returns and several telephone discussions with IRS
agents. Plaintiffs argue that Defendant, by preparing tax returns
filed in Pennsylvania, transacted business in the Commonwealth
and should have expected potential audits to occur in
Pennsylvania. (Resp. at 3-4). In addition, Plaintiffs assert that
Defendant "intended to act for Plaintiffs" during the audit by
the Pennsylvania-branch of the IRS and that the harm stemming
from Defendant's negligence was felt in Pennsylvania (Resp. at
Based on the above facts, we find that Plaintiffs have failed
to establish Defendant's minimum contacts with Pennsylvania.
Defendant's telephone calls and letters to the forum, even if
transmitting negligent advice, do not suffice to confer
jurisdiction over Defendant. See Vetrotex, 75 F.3d at 152
(defendant's several informational telephone calls and letters to
Pennsylvania do not support assertion of personal jurisdiction);
Mellon Bank (East) PSFS, N.A., v. DiVeronica Bros., Inc.,
983 F.2d 551, 556 (3d Cir. 1993) (defendant's telephone calls of
inquiry to Pennsylvania do not show purposeful availment
sufficient for personal jurisdiction); Reliance Steel Prods. Co.
v. Watson, Ess, Marshall & Enggas, 675 F.2d 587, 589 (3d Cir.
1982) (defendant's giving of negligent legal advice over phone
and submitting bills to Pennsylvania resident insufficient
contacts for personal jurisdiction); see also Sawtelle v.
Farrell, 70 F.3d 1381, 1390-91 (1st Cir. 1995) (no personal
jurisdiction over Florida attorneys representing New Hampshire
residents based on alleged negligence and malpractice where harm
felt in New Hampshire but negligent conduct performed elsewhere;
communication of negligent advice by telephone and letter not
sufficient contact). Nor does the mere existence of a contract
between Defendant and Plaintiffs, standing alone, support the
finding of specific jurisdiction. See Vetrotex, 75 F.3d at 151;
Grand Entertainment Group, Ltd. v. Star Media Sales, Inc.,
988 F.2d 476, 482 (3d Cir. 1993); DiVeronica, 983 F.2d at 557.
Similarly, the bare existence of a professional-client
relationship, even when the client alleges negligence by the
professional, does not support specific jurisdiction without
further contact. See Trinity Indus., Inc. v. Myers & Assocs.,
Ltd., 41 F.3d 229, 230-31 (5th Cir. 1995) (noting that existence
of attorney-client relationship not enough to establish personal
jurisdiction); FDIC v. Malmo, 939 F.2d 535, 536-37 (8th Cir.
1991) (effects of attorney's negligence inside forum not
sufficient to establish personal jurisdiction); see also Calder
v. Jones, 465 U.S. 783, 789, 104 S.Ct. 1482, 79 L.Ed.2d 804
(1984) (distinguishing between effect of negligence and
intentional torts on minimum contacts analysis); Henshell Corp.
v. Childerston, Civ. A. No. 99-2972, 1999 WL 549027, at *4 & n.
2 (E.D.Pa. July 28, 1999) (listing cases in which minimum
contacts not found on basis of attorney-client communications
In view of the absence of any actual conduct by Defendant in
Pennsylvania, and the limited communications sent by Defendant
into the Commonwealth, we find that there are insufficient
contacts on which to base personal jurisdiction.*fn1
Accordingly, we will grant Defendant's Motion.
For the foregoing reasons, we will grant Defendant's Motion to
Dismiss for Lack of
In Personam Jurisdiction. An appropriate order follows.
AND NOW, this 22nd day of November, 2000, upon consideration of
Defendant's Motion to dismiss for Lack of In Personam
Jurisdiction (Document No. 8), and Plaintiffs' Response thereto,
it is herebey ORDERED that Defendant's Motion is GRANTED. This
case is DISMISSED WITHOUT PREJUDICE.