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Aozora New Zealand Ltd. v. Fru-Veg Marketing, Inc.

United States District Court, E.D. Pennsylvania

March 29, 2018

AOZORA NEW ZEALAND LTD., Plaintiff,
v.
FRU-VEG MARKETING, INC., Defendant.

          OPINION

          SLOMSKY, J.

         I. INTRODUCTION

         Plaintiff Aozora New Zealand LTD. brings this action against Defendant Fru-Veg Marketing, Inc., alleging a breach of contract and violations of the Perishable Agricultural Commodities Act (PACA)[1] all arising from a dispute regarding a consignment agreement between the parties. (Doc. No. 7.) Plaintiff is a New Zealand corporation with "its only place of business located at 18 Morgan Street, Newmarket, Auckland 1023, New Zealand." (Id. at 2 ¶ 4.) Defendant is a corporation with "its main business address located at 2300 N.W. 102nd Avenue, Miami, Florida." ( Id. ¶ 5; see Doc. No. 9, Ex. B at 2 ¶ 2.) The parties entered into the consignment contracts in 2014 and 2016, under which Plaintiff's fresh New Zealand apples were consigned to Defendant at the Port of Philadelphia, Pennsylvania for sale in the surrounding market area. (Doc. No. 7.) A dispute arose and this action followed. (Id.)

         Defendant has filed a Motion to Dismiss the Amended Complaint, asserting that this Court does not have personal jurisdiction over it and therefore this case should be dismissed or alternatively either stayed or transferred. (Doc. No. 9.) Plaintiff argues that jurisdiction arose from Defendant's targeting of Pennsylvania to ship and store its merchandise in this forum and then make its sales there, giving this Court specific jurisdiction over Defendant. (Doc. Nos. 7, 10.)

         On June 9, 2017, Plaintiff filed the Complaint (Doc. No. 1), and on July 28, 2017, Plaintiff filed the Amended Complaint (Doc. No. 7). On August 11, 2017, Defendant filed the Motion to Dismiss the Amended Complaint for Lack of Jurisdiction. (Doc. No. 9.) On August 25, 2017, Plaintiff filed a Response in Opposition. (Doc. No. 10.)

         In moving to dismiss and in the alternative either to stay or transfer this action to federal district court in Florida, Defendant relies on evidence such as a declaration of Defendant's Chief Executive Officer (CEO), Conchita Espinosa, submitted under penalty of perjury; an attorney declaration submitted under penalty of perjury; e-mail communications dating from 2016 between Conchita Espinosa and Plaintiff's Managing Director, Anthony Bruford, regarding terms of one of the parties' consignment contracts; and a Complaint in a concurrent action in state court in Florida, which it contends is based on the same claims as asserted in this action and was filed over a month before it.[2] (Doc. No. 9.) This evidence is offered to show that Defendant has sparse contact with Pennsylvania and that the dispute in this case concerns a contract that was formed outside the forum and has contractual terms that were meant to be executed also outside the forum. (See id.) For these reasons, Defendant contends that any contact with Pennsylvania is unrelated to Plaintiff's claims. (See id.) Further, the evidence is offered to show that Florida is a more appropriate forum and that since the same claims were filed first in Florida state court, a stay of this action or transfer to federal court in Florida would be more appropriate than litigating the action in Pennsylvania. (See id.)

         In its Response, Plaintiff offered evidence to show that this case should be litigated in Pennsylvania. (See Doc. No. 10.) The evidence includes a declaration of Anthony Bruford and attorney declarations, all submitted under penalty of perjury, which Plaintiff contends refute Defendant's characterization of the claims in this case; and e-mail communications from 2013 and 2016 between Anthony Bruford and Conchita Espinosa and between Bruford and Defendant's Director of Procurement and other documents relating to sales of the apple shipments at issue. (Id.) Plaintiff's evidence is offered to show that the claims in this case concern Defendant's activities in this forum because the claims are based on Defendant's sales of the apples, which Defendant chose to have shipped and stored in Pennsylvania and then sold in the surrounding market area. (See id.)

         A hearing on the Motion to Dismiss for lack of jurisdiction was held on October 4, 2017. (Doc. No. 13.) At the hearing, the Court granted the parties a period of time to engage in jurisdictional discovery and the opportunity to file supplemental briefs on the issue of the jurisdiction of this Court. (Id.) During jurisdictional discovery, Plaintiff obtained data from an association that tracks fruit and vegetable exports from Chile, including all such shipments into the United States. (Doc. No. 14.) Specifically, Plaintiff obtained data for the years of 2014 through 2016 regarding all of Defendant's shipments from Chile into the Port of Philadelphia, Pennsylvania. (Id.) Plaintiff offered this evidence as support for its position that Defendant imported Plaintiff's fruit into Pennsylvania not as an isolated contact with the forum, but as part of a large marketing enterprise that includes substantial shipments into the Philadelphia port. (See id.)

         On November 20, 2017, Plaintiff filed a supplemental brief in further opposition of the Motion to Dismiss. (Id.) On December 4, 2017, Defendant filed a supplemental brief in support of its Motion. (Doc. No. 15.) On December 11, 2017, Plaintiff filed a supplemental reply brief. (Doc. No. 16.)

         Defendant's Motion to Dismiss the Amended Complaint for Lack of Jurisdiction (Doc. No. 9) is ripe for disposition.[3]

         II. STANDARD OF REVIEW

         A plaintiff bears the burden of establishing with reasonable particularity that personal jurisdiction exists when the defendant has made a motion to dismiss for lack of personal jurisdiction under Rule 12(b)(2) of the Federal Rules of Civil Procedure. Gen. Elec. Co. v. Deutz AG, 270 F.3d 144, 150 (3d Cir. 2001). When, as here, a court does not hold an evidentiary hearing on the motion to dismiss, "the plaintiff need only establish a prima facie case of personal jurisdiction and ... is entitled to have its allegations taken as true and all factual disputes drawn in its favor." Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 97 (3d Cir. 2004).

         When defending against a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, a plaintiff must do more than rely on the pleadings alone. Once a motion has been made, "the plaintiff must sustain its burden of proof in establishing jurisdictional facts through sworn affidavits or other competent evidence." Id. at 102 n.6 (quoting Patterson v. FBI, 893 F.3d 595, 603-04 (3d Cir. 1990)). Instead of relying on "mere allegations" to assert personal jurisdiction, the plaintiff must respond to Rule 12(b)(2) motions with "actual proofs." Id.

         Under Federal Rule of Civil Procedure 4(e), a federal court may exercise personal jurisdiction "over a nonresident of the state in which the court sits to the extent authorized by the law of that state." Provident Nat'l Bank v. Cal. Fed. Sav. & Loan Ass'n, 819 F.2d 434, 437 (3d Cir. 1987). Pennsylvania, where this Court sits, has a statute that provides for jurisdiction "to the fullest extent allowed under the Constitution of the United States" and "based on the most minimum contact with [the] Commonwealth allowed under the Constitution of the United States." 42 Pa. Cons. Stat. § 5322(b).

         The Due Process Clause of the Fourteenth Amendment requires that nonresident defendants have "certain minimum contacts within the [forum state]" so that defending the suit Washington, 326 U.S. 310, 316 (1945). This principle is based on the notion that a defendant has "fair warning" that it may be subject to a suit in a state where it has a certain level of minimum contacts. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985).

         In this regard, courts have articulated two types of personal jurisdiction: general jurisdiction and specific jurisdiction. See, e.g., Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984). General jurisdiction exists when a foreign corporation's affiliations with the forum are "so continuous and systematic as to render them essentially at home in the forum State." Daimler AG v. Bauman. 134 S.Ct. 746, 754 (2014). When, as here, "no party . . . contends that there is a basis for general jurisdiction in Pennsylvania . . . [courts] are free to consider solely whether the alternative form of personal jurisdiction is present: specific personal jurisdiction." Pennzoil Prods. Co. v. Colelli & Assocs., Inc., 149F.3d 197, 200-01 (3d Cir. 1998). Specific jurisdiction, which essentially deals with the actions of a party targeting its conduct at a specific jurisdiction, is described more fully below.

         III. ANALYSIS

         A. Defendant Is Subject to the Specific Jurisdiction of This Court

         To determine whether specific jurisdiction exists, a court must engage in a three-part inquiry:

First, the defendant must have "purposefully directed [its] activities at the forum." Second, litigation must "arise out of or relate to" at least one of those activities. And third, if the first two requirements have been met, a court may consider whether the exercise of jurisdiction otherwise "comport[s] with 'fair play and substantial justice.'"

D' Jamoos ex rel. Estate of Weingeroff v. Pilatus Aircraft Ltd.. 566 F.3d 94, 103 (3d Cir. 2009) (first quoting Burger King Corp., 471 U.S. at 476; then quoting Helicopteros Nacionales de Colombia, S.A.. 466 U.S. at 414; and then again quoting Burger King Corp., 471 U.S. at 476).

         The facts adduced by Plaintiff to establish that this Court has specific jurisdiction over Defendant are as follows. From March to June 2014, in response to Defendant's solicitations and pursuant to agreements between the parties, Plaintiff consigned and shipped eleven containers of fresh New Zealand apples to Defendant at the Port of Philadelphia, Pennsylvania. (Id. ΒΆ 6; Doc. No. 10, Ex. C at 17.) In April and May 2016, again in response to Defendant's solicitations and pursuant to agreements between the parties, Plaintiff consigned and shipped three ...


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