United States District Court, E.D. Pennsylvania
April 8, 2004.
WITOLD ANDREW ZIARNO, Plaintiff,
GARDNER CARTON & DOUGLAS, LLP, Defendant
The opinion of the court was delivered by: RONALD BUCKWALTER, District Judge
Presently before the Court is Defendant Gardner Carton & Douglas,
LLP's Motion to Dismiss Plaintiff Witold Ziarno's Complaint and
Plaintiff's response thereto. For the reasons explained below,
Plaintiff's complaint is dismissed.
Plaintiff is a resident of Ambler, Pennsylvania. Defendant is a law
firm with offices in Chicago, Illinois, Washington, D.C. and Milwaukee,
Wisconsin. Defendant has never maintained an office, mailing address,
telephone listing or bank account in Pennsylvania. Defendant's attorneys
have litigated cases within Pennsylvania in the course of representing
non-Pennsylvania resident clients. Defendant's attorneys have given
presentations at conferences hosted in Philadelphia.
In September 1999, Plaintiff retained Defendant to represent him in
connection with a patent infringement suit he had filed in the United
States District Court for the Northern District of Illinois. No part of
this representation took place in the Commonwealth of Pennsylvania nor did any communications between Plaintiff and
Defendant Gardner Carton attorneys take place in Pennsylvania.
II. STANDARD OF REVIEW
When a defendant raises the defense of the court's lack of personal
jurisdiction, the burden falls upon the plaintiff to come forward with
sufficient facts to establish that jurisdiction is proper. See
Mellon Bank (East) PSFS. N.A. v. Farino, 960 F.2d 1217, 1223 (3d
Cir. 1992). The plaintiff meets this burden by making a prima
facie showing of "sufficient contacts between the defendant and the
forum state." Id. (citing Provident Nat. Bank v. California Fed.
Sav. & Loan Ass'n., 819 F.2d 434 (3d Cir. 1987)).
The Court must dismiss a complaint when it lacks subject matter
jurisdiction over an action. Fed.R.Civ.P. 12(b)(1). There are two types
of Rule 12(b)(1) challenges facial and factual. Turicentro,
S.A. v. American Airlines. Inc., 303 F.3d 293, 300 (3d Cir. 2002);
Nelson v. Commw. of Pa. Dept. of Public Welfare. 244 F. Supp.2d 382,
386 (E.D.Pa. 2002). In a facial attack on subject matter
jurisdiction, the moving party challenges the Court's jurisdiction based
solely on the complaint, and "the Court must accept the complaint's
allegations as true." Turicentro, 303 F.3d at 300. "In
contrast, a trial court considering a factual attack accords plaintiff's
allegations no presumption of truth." Id. "In a factual attack,
the court must weigh the evidence relating to jurisdiction, with
discretion to allow affidavits, documents, and even limited evidentiary
In the instant action, insofar as it relates to the subject matter
jurisdiction arguments, Defendant argues that, even if all of Plaintiff's
allegations are true, this Court does not have jurisdiction over the
action. Accordingly, Defendant's challenge is facial, and the Court will accept all of Plaintiff's allegations as true when determining
whether or not the Court has subject matter jurisdiction over the case.
Defendant moves the court to dismiss Plaintiff's complaint on two
grounds. First, Defendant argues that this court lacks personal
jurisdiction over Defendant, because Defendant lacks sufficient contacts
with the forum. The Plaintiff and Defendant agree that personal
jurisdiction in this case, if there is any to be found, must be general
jurisdiction, because the specific acts giving rise to the action in this
case took place solely in Illinois.
Personal jurisdiction is a two part analysis. The court must consider
both the Constitutional basis of jurisdiction and the statutory basis. In
this case, Pennsylvania's long arm statute provides that jurisdiction may
be had over corporations that carry on a "continuous and systematic part
of [their] general business within th[e] Commonwealth." 42 Pa. Cons.
Stat. § 5301 (2004). Under the Supreme Court's holding in
International Shoe, personal jurisdiction may be had over
Defendants in a forum only when it would not "offend traditional notions
of fair play and substantial justice." International Shoe Co. v.
Washington. 326 U.S. 310, 316 (1945). This has been interpreted
further by the Supreme Court to mean that a Defendant must "purposefully
avail" him or herself of the "privilege of conducting activities within
the forum" Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475
(1985) (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)),
and should have sufficient contacts with the forum such that he or she
should "reasonably anticipate being haled into court there."
Worldwide Volkswagen Corp. v. Woodson. 444 U.S. 286, 297
(1980). In the present action, Plaintiff points to a few cases in which
Defendant's attorneys represented clients in federal court in
Pennsylvania. As far as the Court can determine, in each case the
represented clients were not Pennsylvania residents, but were instead
brought into court in Pennsylvania based on their own contacts with the
forum. Nor were the Defendant's attorneys purposefully availing
themselves of the forum, rather they utilized the forum on behalf of
their clients. This sort of involuntary activity was not what the Supreme
Court had in mind when it allowed states to exercise personal
jurisdiction over non-residents, because it lacks the voluntary and
purposeful intent described as a prerequisite to such jurisdiction.
Plaintiff also claims Defendant's attorneys' presentations at
conferences in Philadelphia represent marketing directed into
Pennsylvania sufficient to qualify as "continuous, extensive and
systematic." (Pl. Opp. at 2). The Court does not agree. The speaking
appearances Plaintiff lists are at national conferences that happen to be
hosted in Philadelphia.*fn1 None of the conferences cited by Plaintiff
are aimed at marketing legal services to the local Philadelphia region.
For this reason, the Court finds that these conferences do not constitute
the type of continuous and systematic contacts required to grant personal
jurisdiction over the Defendant. Even if there was personal jurisdiction over the Defendant, which the
Court believes there is not, the Defendant's Motion would still be
granted because this Court does not have subject matter jurisdiction over
the claim. Defendant argues that there is no subject matter jurisdiction
over the case because the contract between the parties states that "any
dispute shall be resolved in  a summary, low-cost procedure in which we
will jointly appoint a qualified and independent mediator-arbitrator who
has special expertise in such matters. If we are not able to agree on a
mediator-arbitrator who has special expertise in such matters, we will
submit the dispute to mediation, and if necessary arbitration, under the
rules of the American Arbitration Association." (Pl. Opp. at 7).
Defendant argues that this requires the parties to first submit to
arbitration prior to filing suit. Plaintiff agrees, but believes that
court mediation would satisfy this obligation. The Court finds that the
unambiguous intent expressed in the contract was for the parties to
submit to private mediation/arbitration prior to bringing suit. Therefore
the Court does not have subject matter jurisdiction over this claim at
For all the forgoing reasons, Defendant Gardner Carton & Douglas'
Motion to Dismiss is granted. An appropriate order follows. ORDER
AND NOW, on this 8th day of April, 2004, upon
consideration of Defendant's Motion to Dismiss Plaintiff's Complaint
(Docket No. 4), Plaintiff's response thereto (Docket No. 5), Defendant's
Reply (Docket No. 8), it is hereby ORDERED that Defendant's
Motion to Dismiss is GRANTED.
This case is CLOSED.