The opinion of the court was delivered by: SYLVIA RAMBO, Senior District Judge
Before the court are Defendant's motions to dismiss, or in the
alternative to transfer the case. (Doc. 6.) The parties have
briefed the issues, and the matter is ripe for disposition. For
the reasons that follow, Defendant's motion will be Denied.
Plaintiff Claire Stoner is an artist domiciled in New Freedom,
Pennsylvania. (Compl. ¶ 3.) Defendant Arts Uniq, Inc., a
Tennessee corporation, represents and promotes artists and
artworks. (Id. ¶ 4.) Defendant represents many artists in the
Commonwealth of Pennsylvania; Pennsylvania artists comprise over
10% of Defendant's client base. (Def.'s Reply Br. 4.) Defendant
also enters into sales agreements with art dealers; sales to
dealers in Pennsylvania comprise about two percent of Defendant's
total sales. (Id.) Defendant advertises on its website that it
has a business relationship with nearly 600 art dealers in
Pennsylvania. (Pl.'s Br. in Opp'n 5; Doc. 15.) Plaintiff entered into an agreement with Defendant on January
30, 2003 to represent Plaintiff and her works. (Compl. ¶ 6.)
Defendant advised Plaintiff that she could terminate the
agreement unilaterally. (Id. ¶ 8.) On November 1, 2004,
Plaintiff terminated her contractual relationship with Defendant.
(Id. ¶ 7.) At that time, Plaintiff learned that Defendant had
entered into long-term contracts on her behalf, and that some of
these agreements ran for as much as two years past the date of
termination. (Id. ¶¶ 11-20.) According to Plaintiff, she had
not been informed of the length of these contracts. (Id. ¶¶ 14,
16, 18, 20.) Plaintiff asserts that Defendant continues to
collect royalties on the sales of her work. (Id. ¶ 26.)
Plaintiff believes that these royalties have amounted over
$100,000 to date, and that they could amount to $150,000 over the
life of these long-term contracts. (Id. ¶¶ 27, 30.)
Plaintiff filed a Complaint alleging breach of contract on May
2, 2005, asking the court to enjoin the Defendant from acting as
Plaintiff's agent and collecting royalties from that
representation. (Id. ¶ 30.) She also seeks damages for those
royalties that have been diverted to Defendant after the
termination of their agreement. (Id.) Defendant filed a motion
to dismiss pursuant to Rule 12(b)(2) and 12(b)(3) of the Federal
Rules of Civil Procedure on August 25, 2005. In that motion,
Defendant also moved for a change of venue pursuant to
28 U.S.C. § 1404.
Rule 12(b)(2) of the Federal Rules of Civil Procedure allows a
defendant to challenge the court's right to exercise personal
jurisdiction over him. The defendant bears the initial burden of
rasing a lack of jurisdiction. Carteret Sav. Bank, F.A. v. Shushan, 954 F.2d 141, 146 (3d Cir. 1992). The
burden then shifts to the plaintiff to establish that the
exercise of personal jurisdiction over the defendant is proper.
Id. The plaintiff must "establish jurisdictional facts through
sworn affidavits or other competent evidence." Time Share
Vacation Club v. Atl. Resorts, 735 F.2d 61, 66 n. 9 (3d Cir.
1984). "[A]t no point may a plaintiff rely on the bare pleadings
alone in order to withstand a defendant's Rule 12(b)(2) motion
for lack of in personam jurisdiction." Id. The plaintiff need
only make a prima facie showing of personal jurisdiction if there
has been limited discovery or no evidentiary hearing.*fn1
Carteret, 954 F.2d at 142. After a prima facie case has been
made, the plaintiff must still establish personal jurisdiction by
a "preponderance of the evidence." Id.
Pursuant to Rule 4(e) of the Federal Rules of Civil Procedure,
a federal court may exercise personal jurisdiction over
non-residents "to the extent permissible under the law of the
state where the district court sits." Mellon Bank (East) PSFS v.
Farino, 960 F.2d 1217, 1221 (3d Cir. 1992). Pennsylvania's long
arm statute extends personal jurisdiction to the fullest extent
allowed under the United States Constitution.
42 Pa. C.S.A. § 5322(b). Thus, the long-arm statute is limited only by the Due
A district court may assert personal jurisdiction over a
non-resident defendant when the defendant's "conduct and
connection with the forum state are such that he should
reasonably anticipate being haled into court there." World Wide
Volkswagon Corp. v. Woodson, 444 U.S. 286, 297 (1980). Where a
defendant "purposefully avails himself of the privilege of
conducting activities within the forum state," the defendant is on notice that he is subject to suit in
that state. Id.; Hanson v. Denkla, 357 U.S. 235, 253 (1958).
This analysis centers on "whether the defendant has purposefully
directed his activity toward the forum state." Burger King Corp.
v. Redzewicz, 471 U.S. 462, 472 (1985).
The court exercises specific jurisdiction over a defendant
where the suit arises out of or is related to the defendant's
contacts with the forum state. Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 8 (1984). If the
suit does not arise out of defendant's contacts with the forum
state, the court may exercise general jurisdiction if the
defendant's contacts are "continuous and systematic." Id. at
Defendant contends that because the agreement between the
parties was concluded from Defendant's place of business in
Tennessee, and because the agreement is governed by Tennessee
law, Plaintiff cannot establish that Defendant had sufficient
contact with Pennsylvania. However, Defendant admits having
continual intentional contact with Pennsylvania. From at least
2003, Defendant has earned between one and two percent of its
total annual sales income from Pennsylvania dealers. (Def.'s
Reply Br. 4.) It has represented Pennsylvania artists during that
length of time as well; over ten percent of Defendant's client
base is comprised of Pennsylvania artists. (Id.) Defendant also
advertises on its website that it has business relationships with
nearly 600 art dealers in Pennsylvania. (Pl.'s Br. in Opp'n 5;
Doc. 15.) Many of these dealers are located in the Middle
District of Pennsylvania.
Defendant has maintained continuous contact with the
Commonwealth of Pennsylvania over a period of at least three
years. Defendant purposefully directed his activities toward the Commonwealth by entering into business
relationships with artists and art dealers in Pennsylvania. By
these contacts, Defendant is on notice that it could be haled
into court by any one of these artists they represent or dealers.
Thus, it is not unfair to assert personal jurisdiction over
Defendant here. Because the court finds that general personal
jurisdiction over Defendant is proper, the court need not
determine whether ...