Remick v. Manfredy

• Decision Date: 22 April 1999
• Docket Number: No. Civ.A. 99-CV-0025.,Civ.A. 99-CV-0025.
• Citation: 52 F.Supp.2d 452
• Parties: Lloyd Z. REMICK, Esq. v. Angel MANFREDY, John Manfredy, Jeffrey H. Brown, Esq., Kathleen H. Klaus, Esq. and D'Ancona & Pflaum
• Court: U.S. District Court — Eastern District of Pennsylvania

52 F.Supp.2d 452

Lloyd Z. REMICK, Esq. v. Angel MANFREDY, John Manfredy, Jeffrey H. Brown, Esq., Kathleen H. Klaus, Esq. and D'Ancona & Pflaum

No. Civ.A. 99-CV-0025.

United States District Court, E.D. Pennsylvania.

April 22, 1999.

COPYRIGHT MATERIAL OMITTED

Richard G. Phillips, Patrick C. Campbell, Jr., Robert J. Opalka, Richard G. Phillips Associates, Philadelphia, PA, for plaintiff.

Kenneth I. Trujillo, Louis C. Ricciardi, Trujillo Rodriguez & Richards, The Penthouse, Philadelphia, PA, Peter Petrakis, Lisa L. Marré, D'Ancona & Pflaum, LLC, Chicago, IL, for defendants.

MEMORANDUM AND ORDER

JOYNER, District Judge.

Defendants have moved to dismiss this action for lack of in personam jurisdiction and for failure to state a claim upon which relief may be granted pursuant to Fed. R.Civ.P. 12(b)(2) and (6). Alternatively, they argue that venue in this district is improper and request that this matter be transferred to the Northern District of Illinois.

History of the Case

The plaintiff, Lloyd Remick, is an attorney licensed to practice law in the Commonwealth of Pennsylvania with "a national practice specializing in sports and entertainment law." (Pl's Complaint, ¶ 13). Plaintiff contends that in the late fall of 1996, he and his colleague, Bernard Resnick, Esquire, were approached by Defendant Angel Manfredy, a lightweight boxer, and his advisers, defendants John Manfredy and Jeffrey Brown, about representing him, particularly with regard to negotiations with Cedric Kushner Promotions, Ltd. "After discussions and negotiations between Remick..., Resnick and Manfredy's team, on January 11, 1997, Angel Manfredy retained Remick to act as his special counsel in order to procure, negotiate and draft boxing and endorsement agreements." (Pl's Compl., ¶ 17). Pursuant to the fee agreement which Angel Manfredy signed, plaintiff was to receive 5% of up to $35,000 of the purse paid to Manfredy for the first bout fought after the signing of the agreement, 8% of the net amount of all purses or other compensation which Manfredy received for boxing or promotions during the term of the agreement and 15% of the gross amount which Manfredy received from any endorsement contract which the plaintiff procured for him.

Plaintiff alleges that almost immediately after he was retained, he began obtaining fight engagements for Angel Manfredy with better, more famous fighters and larger purses than those Manfredy had previously been receiving as well as lucrative promotions contracts. Manfredy and his team, however, demanded a $500,000 purse for an HBO-televised fight with Azumah Nelson which, according to the plaintiff's complaint, was unrealistic given that HBO had budgeted only $850,000 to pay both fighters' purses and all other costs and expenses. As HBO's final and best offer to Manfredy was a purse of $350,000, on March 2, 1998 Manfredy sent Remick a letter terminating his representation on the grounds that Remick had failed to represent his interests and live up to certain promises and was an ineffective negotiator and attorney.

After plaintiff's termination, the Manfredy team negotiated with Cedric Kushner Promotions for a fight with a purse of $75,000 with Isander Lacen to take place on June 16, 1998. On June 12, 1998, plaintiff sent Kushner Promotions a letter requesting that it place 8% of Manfredy's purse into escrow for him until such time as the dispute between Remick and Manfredy could be resolved. No monies were placed into escrow and on September 2, 1998, plaintiff wrote to Angel Manfredy and demanded that his 8% fee for the Lacen fight be paid to him. On September 11, 1998, Defendant Kathleen Klaus, an attorney with the defendant law firm D'Ancona & Pflaum sent plaintiff a letter in response to his threat of legal action against her client, Angel Manfredy. According to the plaintiff's complaint, in this letter, a copy of which was sent to Angel Manfredy, Klaus accused him of attempting to extort money out of the Manfredy team and of having committed professional malpractice, thereby defaming him.

By way of their motion to dismiss and/or to transfer, Defendants, all of whom are residents of the State of Illinois with the exception of Angel Manfredy who is an Indiana resident, assert that they do not have the requisite minimum contacts with Pennsylvania such as would permit this Court to exercise jurisdiction over them. Not surprisingly, Plaintiff argues that there is a sufficient basis for jurisdiction in this forum given that Angel Manfredy and D'Ancona & Pflaum advertise and otherwise conduct business in this Commonwealth via their Internet web pages.

Standards Applicable to 12(b)(2) Motions

Inasmuch as lack of personal jurisdiction is a waivable defense under Fed. R.Civ.P. 12(h)(1), it is incumbent upon the defendant to challenge it by filing a motion to dismiss under Rule 12(b)(2). See, e.g.: Clark v. Matsushita Electric Industrial Co., Ltd., 811 F.Supp. 1061, 1064 (M.D.Pa. 1993). Once done, the burden shifts to the plaintiff to come forward with sufficient facts to establish that jurisdiction is proper. Zippo Manufacturing Company v. Zippo Dot Com, Inc., 952 F.Supp. 1119, 1121 (W.D.Pa.1997). The plaintiff meets this burden by making a prima facie showing of "sufficient contacts between the defendant and the forum state." Id., quoting Mellon Bank (East) PSFS, N.A. v. Farino, 960 F.2d 1217, 1223 (3rd Cir.1992) and Carteret Savings Bank. F.A. v. Shushan, 954 F.2d 141, 146 (3rd Cir.1992).

A Rule 12(b)(2) motion is inherently a matter which requires resolution of factual issues outside the pleadings. Once the defense has been raised, then the plaintiff must sustain its burden of proof in establishing jurisdictional facts through sworn affidavits or other competent evidence. Weber v. Jolly Hotels, 977 F.Supp. 327, 331 (D.N.J.1997) citing, inter alia, Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 67, n. 9 (3rd Cir.1984). At no point may a plaintiff rely on the bare pleadings alone in order to withstand a defendant's Rule 12(b)(2) motion to dismiss for lack of in personam jurisdiction. Once the motion is made, the plaintiff must respond with actual proofs, not mere allegations. Id.

Discussion

Under Fed.R.Civ.P. 4(e), a district court is permitted to assert personal jurisdiction over a non-resident to the extent allowed under the law of the state where the district court sits. Time Share Vacation Club, 735 F.2d at 63. In Pennsylvania, the long-arm statute extends jurisdiction to the "fullest extent allowed under the Constitution of the United States and may be based on the most minimum contact with this Commonwealth allowed under the Constitution of the United States." Santana Products, Inc. v. Bobrick Washroom Equipment, 14 F.Supp.2d 710, 713 (M.D.Pa.1998); 42 Pa.C.S. § 5322(b). In other words, the reach of jurisdiction under Pennsylvania law is coextensive with the Due Process Clause of the United States Constitution. Id.

"The constitutional touchstone" of the determination whether an exercise of personal jurisdiction comports with due process "remains whether the defendant purposefully established `minimum contacts' in or purposely directed its activities toward residents of the forum state." Asahi Metal Industry Co., Ltd. v. Superior Court of California, 480 U.S. 102, 108, 107 S.Ct. 1026, 1030, 94 L.Ed.2d 92 (1987) quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985) and International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945).

There are two theories under which a defendant may be subject to personal jurisdiction. If the plaintiff's cause of action arises out of a defendant's forum-related activities, such that the defendant should reasonably anticipate being haled into court there, that defendant may be subject to the state's jurisdiction under the concept of "specific jurisdiction." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980); Santana Products, Inc., supra, at 713; Allied Leather Corp. v. Altama Delta Corp., 785 F.Supp. 494, 497 (M.D.Pa.1992). "General jurisdiction" exists when the plaintiff's cause of action arises from the defendant's non-forum related activities. To establish general jurisdiction, the plaintiff must show that the defendant has maintained continuous and systematic contacts with the forum. Vetrotex Certainteed Corporation v. Consolidated Fiber Glass Products, Co., 75 F.3d 147, 151 (3rd Cir.1996); National Paintball Supply, Inc. v. Cossio, 996 F.Supp. 459, 461 (E.D.Pa.1998).

Plaintiff here contends that this Court has both general and specific personal jurisdiction over each of the defendants because both Angel Manfredy and D'Ancona & Pflaum solicit business in Pennsylvania through their Internet web sites and because in retaining plaintiff to represent him, Angel Manfredy consciously chose to conduct business with a Pennsylvania resident.

It is indisputable that in very recent years the Internet has drastically changed the way the world does business — it is now possible to conduct business and to provide information and products to consumers and other businesses entirely from a desktop computer. See, e.g.: American Civil Liberties Union v. Reno, 929 F.Supp. 824, 830-848 (E.D.Pa.1996). Although there is scant authority on the subject of whether offering Internet access will confer personal jurisdiction over an individual or entity in a given state, we recently had occasion to address this issue in Blackburn v. Walker Oriental Rug Galleries, Inc., 999 F.Supp. 636 (E.D.Pa.1998) and we believe our summary of the law of the area there is equally applicable in this action:

In analyzing a defendant's contacts through the use of the Internet, the probability that personal jurisdiction may be constitutionally exercised is "directly proportionate to the nature and quality of commercial activity that an entity conducts over the...