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United States District Court, E.D. Pennsylvania

April 8, 2004.


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.


  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 hearings." Id.

  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 this time.


  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.

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