The opinion of the court was delivered by: Joyner, District Judge.
By way of the motion now pending before this Court, the defendant,
Emilio Ferrari, a/k/a Aman Bedi and Aman Ferrari Bedi, moves to dismiss
the plaintiffs complaint against him on the grounds that this Court lacks
personal jurisdiction or, alternatively to quash subpoena and transfer
venue. For the reasons set forth below, the motion to dismiss for lack of
in personam to jurisdiction shall be granted.
According to the averments contained in Plaintiff's complaint, this is
an action for copyright infringement under the Copyright Act of 1976,
17 U.S.C. § 101, et. seq. and under the common law theories of unfair
and fraudulent business practices, forgery and conversion. Specifically,
Plaintiff contends that, on March 15, 2000, it entered into a Sales
Agency Agreement with Defendant's company, A Plus Entertainment, Inc. ("A
Plus") to distribute its film "Killer Instinct" in the domestic and
international markets. Defendant, acting on behalf of A Plus signed the
Sales Agency Agreement. Plaintiff further avers that, despite the fact
that the Sales Agency Agreement (hereinafter "the Agreement") provided in
part that A Plus would not do anything to impair the plaintiffs copyright
protection, Defendant forged the handwriting of one of Plaintiff's
authorized representatives to a letter dated March 15, 2000 and then
recorded this letter with the United States Copyright Office in
Washington, D.C. Defendant also purportedly caused a Copyright Mortgage
and Assignment dated December 5, 2000 to be recorded with the U.S.
Copyright Office assigning all right, title and interest in Killer
Instinct under the copyright to Trimark Pictures, Inc. As a result,
Plaintiff contends that it has lost the ability to fully distribute
and/or sell Killer Instinct in any media.
Standards Applicable to Motions
Under Rule 12(b)(2)
Under Fed.R.Civ.P. 12(h)(1), the defendant bears the burden of raising
lack of personal jurisdiction as it is a waivable defense. National
Paintball Supply, Inc. v. Cossio, 996 F. Supp. 459, 460 (E.D.Pa. 1998).
Once the defense has been raised, the burden then shifts to the plaintiff
to prove that jurisdiction exists. The plaintiff meets this burden and
presents a prima facie case for the exercise of personal jurisdiction by
establishing with reasonable particularity sufficient contacts between
the defendant and the forum state.
Mellon Bank (East) PSFS v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992);
Carteret Savings Bank, F.A. v. Shushan, 954 F.2d 141, 146 (3d Cir.
Personal jurisdiction consists of two components, one constitutional
and the other statutory. First, the plaintiff must demonstrate that
jurisdiction is proper pursuant to the law of the forum state and
second, must show that jurisdiction comports with Due Process under the
United States constitution. Erinc v. Karavil, No. 00-5729, 2001 WL
1143314, *4 2001 U.S. Dist. LEXIS 15222, at *16 (E.D.Pa. Sept. 27,
2001). The Supreme Court has long recognized that the due process clause
protects an individual's liberty interest in not being subject to the
binding judgments of a forum with which he has established no meaningful
contacts, ties or relations. Burger King Corp. v. Rudzewicz, 471 U.S. 462,
471-472, 105 S.Ct. 2174, 2181, 85 L.Ed.2d 528 (1985); International Shoe
Co. v. Washington, 326 U.S. 310, 319, 66 S.Ct. 154, 160, 90 L.Ed. 95
(1945). Indeed, Due Process requires that the defendant have "minimum
contacts" within the forum state such that the exercise of jurisdiction
comports with "traditional notions of fair play and substantial justice."
Remick v. Manfredy, 238 F.3d 248, 255 (3d Cir. 2001), quoting
International Shoe, 326 U.S. at 316, 66 S.Ct. 154. Thus, to satisfy the
dictates of the due process clause, the defendant must have purposefully
directed his conduct toward the forum state or must have purposefully
availed himself of the protection of the laws of the forum state. See,
Burger King, 471 U.S. at 472, 105 S.Ct. 2174; IMO Industries v. Kiekert
AG, 155 F.3d 254, 259 (3d Cir. 1998).
Under Fed.R.Civ.P. 4(e), a district court may assert personal
jurisdiction over nonresident defendants to the extent permissible under
the law of the state where the district court sits. Id. Pursuant to
Pennsylvania's long-arm statute, 42 Pa.C.S. § 5322(b), the courts are
permitted to exercise personal jurisdiction over non-resident defendants
to the constitutional limits of the due process clause of the fourteenth
amendment. Mellon Bank (East) PSFS v. DiVeronica Bros., Inc., 983 F.2d 551,
554 (3rd Cir. 1993); National Paintball Supply, Inc. v. Cossio,
996 F. Supp. 459, 461 (E.D.Pa. 1998).
The exercise of jurisdiction can satisfy Due Process on one of two
distinct theories, a defendant's general or claim-specific contacts with
the forum. Remick and Erinc, both supra. A defendant is subject to
general jurisdiction when it has continuous and systematic contacts with
the forum state and exists even if the plaintiff's cause of action arises
from the defendant's non-forum related activities. Helicopteros
Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-416, 104 S.Ct.
1868, 80 L.Ed.2d 404 (1984); Vetrotex Certainteed Corp. v. Consolidated
Fiber Glass Products Co., 75 F.3d 147, 151 n. 3 (3d Cir. 1996). Specific
jurisdiction, in turn, is established when a non-resident defendant has
"purposefully directed" his activities at a resident of the forum and the
injury arises from or is related to those activities. General Electric
Company v. Deutz Ag, 270 F.3d 144, 151 (3d Cir. 2001). Questions of
specific jurisdiction are properly tied to the particular claims asserted
and thus specific jurisdiction frequently depends on physical contacts
with the forum. Id. Thus, where the plaintiff has shown that the
defendant has the requisite minimum contacts with the forum state and
that the exercise of personal jurisdiction would comport with traditional
notions of fair play and substantial justice, the constitutional due
process standards underlying specific jurisdiction are satisfied. See,
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 ...