Lautman v. The Loewen Group, Inc., No. 99-75, 2000 WL 772818, 2000 U.S.
Dist. LEXIS 8241 (E.D.Pa. June 15, 2000).
Here, Defendant argues that he had no contacts with Pennsylvania except
in his corporate capacity and hence there is no basis upon which he
personally can be subject to jurisdiction as an individual. As a general
rule, individuals performing acts in a state in their corporate capacity
are not subject to the personal jurisdiction of the courts of that state
for those acts. National Precast Crypt Co. v. Dy-Core of Pennsylvania,
Inc., 785 F. Supp. 1186, 1191 (W.D.Pa. 1992). This principle is commonly
referred to as the fiduciary shield doctrine. Id., citing, inter alia,
Western Contracting Corp. v. Bechtel Corp., 885 F.2d 1196 (4th Cir. 1989)
and Retail Software Services, Inc. v. Lashlee, 854 F.2d 18 (2nd Cir.
Where, however, the corporate officer engages in tortious conduct in
his or her corporate capacity in the forum state, personal liability may
attach. United Products Corporation v. Admiral Tool & Man
Manufacturing Co., 122 F. Supp.2d 560, 562 (E.D.Pa. 2000); Huth to
Hillsboro Insurance Management, Inc., 72 F. Supp.2d 506, 511 (E.D.Pa.
1999); Elbeco, Inc. v. Estrella de Plato, Corp., 989 F. Supp. 669, 675
(E.D.Pa. 1997). Accordingly, courts have refused to permit a corporate
officer to invoke the shield when the officer was involved in tortious
conduct for which he or she could be held personally liable. Lautman,
2000 WL 772818, *5, 2000 U.S. Dist. LEXIS at *16. Using a case-by-case
approach to determine whether corporate contacts should be considered for
personal jurisdiction over an officer, courts analyze the following
factors: (1) the officer's role in the corporate structure; (2) the
quality of the officer's contacts; and (3) the nature and extent of the
officer's participation in the alleged tortious conduct. McMullen v.
European Adoption Consultants, Inc., 129 F. Supp.2d 805, 811 (W.D.Pa.
2001); United Products, 122 F. Supp.2d at 562; Elbeco, 989 F. Supp. at
In applying these principles to the case at hand, we first cannot find
that Defendant has the requisite continuous and systematic contacts with
Pennsylvania such that general personal jurisdiction has been conferred
over him. Although Plaintiff argues that the defendant has shipped
various movies into or through Pennsylvania and has sent a substantial
number of letters, faxes, federal express packages and e-mail into
Pennsylvania, it appears that Plaintiff is alleging that all of these
activities occurred in relation to the transaction underlying this
lawsuit only. Thus, despite the complete absence of any actual evidence
to support Plaintiff's argument and accepting these allegations as true,
we find that these averments are insufficient to make out a showing of
Turning now to the issue of specific jurisdiction, we likewise cannot
find that sufficient contacts exist between Mr. Ferrari and this forum
such as would permit the exercise of specific personal jurisdiction over
him. For one, in considering the three factors enunciated above under the
fiduciary shield test, we find that Mr. Ferrari is the President and
owner of A Plus Entertainment, Inc., a California corporation and that it
was he who executed the Sales Agency Agreement with Plaintiff on behalf
of the company. It is therefore clear that he has the most significant
role in A Plus' corporate structure.
However, with respect to the nature and quality of Defendant's contacts
with the forum, it appears that the only contacts which Mr. Ferrari has
had with Pennsylvania consist of several telephone conversations and
facsimile transmissions with D & S
representatives. It is unclear which party originated the telephone
calls and there is evidence that Mr. Ferrari originated only one
facsimile transmission on November 15, 2000. These contacts are, we
find, insufficient to weigh in favor of the exercise of personal
jurisdiction by this Court.
Finally, applying the third prong of the analysis, we find that while
the defendant is alleged to have been the primary tortfeasor (by
purportedly first forging the signature of Plaintiff's principal officer
to a letter dated March 15, 2000, later recording it with the U.S.
Copyright Office in Washington, D.C., by recording a Copyright Mortgage
and Assignment to Trimark Pictures in the U.S. Copyright Office in
December, 2000, and by misrepresenting his expertise and qualifications
in the field of film marketing and distribution), it does not appear that
any of these tortious actions occurred in Pennsylvania. Although it is
undisputed that the Plaintiff is a Pennsylvania corporation which filmed
and produced "Killer Instinct" here, and that arguably the harm which
Defendant is alleged to have inflicted was felt in Pennsylvania, the
record is also clear that it was the plaintiff who sought to engage
Defendant's company to represent it. There is absolutely no evidence
whatsoever that A Plus has any offices, agents or employees in
Pennsylvania, owns any real or personal property here, has any licenses,
ever distributed or produced any motion pictures here, ever advertised in
or otherwise directed its marketing activities to Pennsylvania or that it
did anything other than provide general information regarding Mr.
Ferrari's background and credentials on its Internet web site. We
therefore conclude that Mr. Ferrari remains protected by the fiduciary
Moreover, the plaintiff has produced no evidence to refute that of the
defendant that he is a resident of California who has never been to
Pennsylvania and never paid taxes to Pennsylvania, owns no real or
personal property in Pennsylvania and maintains no bank accounts or
licenses here. Accordingly, we can make no other finding but that
insufficient contacts exist to justify this Court's exercise of specific
personal jurisdiction over Defendant on any of the four claims in
For all of the reasons set forth above, we shall grant the defendant's
motion to dismiss for lack of personal jurisdiction without prejudice to
Plaintiff's right to bring this action in the appropriate forum. In light
of this holding, we see no need to address Defendant's argument with
respect to the propriety of service of process upon him or as to his
request for change of venue.
An order follows.
AND NOW, this day of November, 2001, upon consideration of Defendant's
Motion to Dismiss for Lack of Personal Jurisdiction, Insufficient Process
and Insufficient Service of Process or, in the Alternative to Quash
Subpoena and Transfer Venue, it is hereby ORDERED that the Motion is
GRANTED and Plaintiff's Complaint is DISMISSED without prejudice to
Plaintiff's right to re-file it in the appropriate forum.
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