238 F.3d 248 (3rd Cir. 2001), 99-1422, Remick v Manfredy

Docket Nº:99-1422
Citation:238 F.3d 248
Party Name:LLOYD Z. REMICK, ESQ., APPELLANT V. ANGEL MANFREDY; JOHN MANFREDY; JEFFREY H. BROWN, ESQ.; KATHLEEN H. KLAUS, ESQ.; D'ANCONA & PFLAUM
Case Date:January 25, 2001
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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238 F.3d 248 (3rd Cir. 2001)

LLOYD Z. REMICK, ESQ., APPELLANT

V.

ANGEL MANFREDY; JOHN MANFREDY; JEFFREY H. BROWN, ESQ.; KATHLEEN H. KLAUS, ESQ.; D'ANCONA & PFLAUM

No. 99-1422

United States Court of Appeals, Third Circuit

January 25, 2001

Argued September 13, 2000

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 99-cv-00025) District Judge: Hon. J. Curtis Joyner

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Attorney for Appellant: Patrick C. Campbell, Jr. (Argued) Richard G. Phillips Associates, P.C. Philadelphia, PA 19103-7596

Attorneys for Appellees: Louis C. Ricciardi Rodriguez & Richards Philadelphia, PA 19103, Lisa M. Sommer Steven L. Baron (Argued) D'Ancona & Pflaum Chicago, IL 60601

Before: Sloviter, Scirica and Alito, Circuit Judges

OPINION OF THE COURT

Sloviter, Circuit Judge.

Plaintiff Lloyd Remick, an attorney specializing in sports and entertainment law licensed to practice in the Commonwealth of Pennsylvania, filed suit in a Pennsylvania state court against Angel Manfredy ("Manfredy"), John Manfredy, Jeffrey Brown and Kathleen Klaus, as well as against the law firm D'Ancona & Pflaum with which Brown and Klaus are associated. The complaint alleges, inter alia, breach of contract, tortious interference with contract, misappropriation of image and likeness, civil conspiracy, and defamation.1 The defendants removed the action to the United States District Court for the Eastern District of Pennsylvania.

The District Court dismissed the complaint against the individual defendants under Rule 12(b)(2) of the Federal Rules of Civil Procedure for lack of personal jurisdiction and against the law firm under Rule 12(b)(6) for failure to state a claim. See Remick v. Manfredy, 52 F.Supp.2d 452 (E.D. Pa. 1999). This appeal raises a number of issues which we will consider seriatim.

I.

FACTS

According to the complaint, which we accept as true for purposes of a motion to dismiss, in late 1996 Remick and his associate, Bernard Resnick, were approached by Manfredy, a lightweight professional boxer, and his advisors, John Manfredy, his brother and agent, and Jeffrey Brown, an attorney with D'Ancona & Pflaum, about representing Angel Manfredy in negotiations, particularly with fight promoter Cedric Kushner Productions, Ltd. ("Kushner"). Eventually, Remick and Manfredy entered into a contract under which Remick would act as Manfredy's special counsel

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in the procurement and negotiation of high profile and lucrative fights, promotions and endorsements. Manfredy signed a fee agreement that entitled Remick to a specified percentage of all purses or other compensation which Manfredy received for boxing or promotions during the term of the agreement and of any endorsement contract procured by Remick on Manfredy's behalf.2 Manfredy and Brown had the right to review and approve or disapprove all contracts negotiated by Remick. On February 7, 1997, Remick was successful in negotiating for Manfredy an Exclusive Promotional Agreement between Kushner and Manfredy.

According to Remick, Manfredy quickly benefitted from his representation, and in the year following Remick's retention Remick had secured Manfredy purses up to $375,000. In early 1998, there was a disagreement between Remick and Manfredy over negotiations for an HBO-televised fight between Manfredy and Azumah Nelson, and ultimately the proposed Nelson fight fell through. On March 2, 1998, Manfredy sent Remick a letter terminating his representation, asserting that Remick had failed to adequately represent Manfredy's interests by not delivering on certain alleged promises and faltering as a negotiator. The letter concludes with the following paragraphs:

When we began working together you led me to believe that you had the ability and connections to bring in endorsements and negotiate effectively with [Kushner]. This hasn't happened. During the more than thirteen months you represented me you never delivered a single endorsement opportunity.

As a result of your failures to adequately represent my interests, I have decided to terminate your engagement. Please forward all of my files relating to my representation to my attorney, Jeffrey Brown, at D'Ancona & Pflaum.

App. at 119.

Thereafter, Manfredy's team negotiated with Kushner for a bout against Isander Lacen to take place on June 16, 1998, with a $75,000 purse. Remick claimed that he was entitled to an 8% share of Manfredy's purse because he negotiated the overarching Exclusive Promotional Agreement between Manfredy and Kushner. Remick asked Kushner to place 8% of Manfredy's purse into escrow until his dispute with Manfredy could be resolved, but Kushner did not do so.

On September 2, 1998, Remick wrote to Manfredy rejecting the termination of his representation, demanding 8% of Manfredy's purse from the Lacenfight, and stating that he would "be left with no recourse than to pursue legal remedies" unless Manfredy withdrew his March 2, 1998 termination letter. App. at 59-60. On September 11, 1998, defendant Kathleen Klaus, another attorney with D'Ancona & Pflaum, sent a letter to Remick stating:

We are writing in response to your letter of September 2, 1998 threatening to take legal action against our client Angel Manfredy.

As you know, Mr. Manfredy terminated his relationship with you by letter on March 2, 1998. His letter made it very clear that, in light of your failure to perform your obligations to him, he was left with no alternative other than to sever his association with you. Your September 2, 1998 letter indicates that you received Mr. Manfredy's letter six months ago and, because you are an attorney, we assume you appreciated its import.

We are not aware of any legal principle which allows you to "reject" the termination of an attorney client relationship

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or any authority which requires one party to the contract to perform in the face of the other party's breach. If you insist on attempting to extort money from Cedric Kushner Promotions, Ltd. or any other entity with which Mr. Manfredy is engaged on the basis of your alleged contract with Mr. Manfredy, we will not hesitate to pursue our legal remedies, including a suit for damages arising from your failure to adequately represent Mr. Manfredy.

App. at 121.

Remick's complaint in this case arose out of both the failed relationship with Manfredy and the Klaus letter. Defendants filed a motion to dismiss under both Rule 12(b)(2) and Rule 12(b)(6) and an Alternative Motion to Transfer under Rule 17. The District Court granted the defendants' motion to dismiss pursuant to Rule 12(b)(2), concluding that there was no personal jurisdiction over the individual defendants. Focusing on the merits of the claims against the law firm, the District Court considered defendant's Rule 12(b)(6) motion. It dismissed with prejudice Remick's defamation claim against D'Ancona & Pflaum, and dismissed (without prejudice) his claims for interference with business and contractual relationships (variously called, inter alia, interference with contracts) and civil conspiracy. Remick filed a timely notice of appeal.

II.

APPELLATE JURISDICTION

Although the order of the District Court dated April 22, 1999, states that the complaint is dismissed without prejudice, in fact the Memorandum and Order dated the same day and filed contemporaneously holds that the complaint against the individuals is dismissed for lack of personal jurisdiction, that there is general personal jurisdiction over the law firm, and that one count of the complaint against the law firm, that for defamation, is dismissed with prejudice but that two counts against that defendant, the claims for tortious interference with contract and for civil conspiracy, are dismissed with leave given to Remick to replead. He chose not to do so, instead filing the notice of appeal.

Because of the procedural posture of the case, we asked Remick to comment at oral argument on our jurisdiction to hear this matter. In Borelli v. City of Reading, 532 F.2d 950, 951-52 (3d Cir. 1976) (per curiam), this court, noting the general rule that an order dismissing a complaint without prejudice is not appealable, stated that "[o]nly if the plaintiff cannot amend or declares his intention to stand on his complaint does the order become final and appealable."

Although generally a plaintiff who decides to stand on the complaint does so in the district court, see, e.g., In re Advanta Corp. Sec. Litig., 180 F.3d 525, 529-30 (3d Cir. 1999); In re Westinghouse Sec. Litig., 90 F.3d 696, 702 (3d Cir. 1996), we have made clear that such a course, while preferable, is not always necessary. Recently, in Semerenko v. Cendant Corp., 223 F.3d 165, 172-73 (3d Cir. 2000), the plaintiffs/appellants declared their intention to stand on their complaint in this court, and we thereafter treated the district court's order dismissing the complaint, albeit without prejudice, as a final order dismissing with prejudice and therefore appealable.

During the argument in this case, Remick's attorney stated unequivocally that Remick wished to stand on his complaint. Accordingly, we conclude that we have jurisdiction over the dismissal as a final order under 28 U.S.C. S 1291.

III.

PERSONAL JURISDICTION OVER INDIVIDUAL DEFENDANTS

Remick does not deny that individual defendants Manfredy, John Manfredy, Brown, and Klaus are not residents of Pennsylvania. Manfredy is an Indiana resident, and the other defendants are residents

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of Illinois. Under Fed. R. Civ. P. 4(e), a district court may assert personal jurisdiction...

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