81 F.R.D. 703 (W.D.Pa. 1979), C. A. 76-292, DiCesare-Engler Productions, Inc. v. Mainman Ltd.

Docket Nº:Civ. A. 76-292.
Citation:81 F.R.D. 703
Opinion Judge:COHILL, District Judge.
Party Name:DiCESARE-ENGLER PRODUCTIONS, INC., a corporation, Plaintiff, v. MAINMAN LTD., a corporation, and David Bowie, an Individual, Defendants.
Attorney:David Abrams, Monroeville, Pa., for plaintiff. Stanley M. Stein, Feldstein, Grinberg, Stein and McKee, Pittsburgh, Pa., for defendants.
Case Date:March 01, 1979
Court:United States District Courts, 3th Circuit

Page 703

81 F.R.D. 703 (W.D.Pa. 1979)

DiCESARE-ENGLER PRODUCTIONS, INC., a corporation, Plaintiff,

v.

MAINMAN LTD., a corporation, and David Bowie, an Individual, Defendants.

Civ. A. No. 76-292.

United States District Court, W.D. Pennsylvania.

March 1, 1979

Promoter, a Pennsylvania corporation, brought action in Pennsylvania state court against concert producer, a foreign corporation, and rock star for damages resulting from producer's cancellation of concert to be performed in Ohio. Action was removed to federal court. Rock star made motion to strike second default judgment entered against him and producer moved to dismiss complaint for lack of personal jurisdiction and for failure to state claim upon which relief can be granted. The District Court, Cohill, J., held that: (1) because service of process was not made properly on rock star and because court could not exercise jurisdiction over him under Pennsylvania long-arm statute, rock star's motion to strike default judgment would be granted and complaint would be dismissed as to him, and (2) it was fair to require producer to defend suit in Pennsylvania and promoter's complaint was not subject to dismissal for failure to state claim upon which relief could be granted.

Order accordingly.

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David Abrams, Monroeville, Pa., for plaintiff.

Stanley M. Stein, Feldstein, Grinberg, Stein and McKee, Pittsburgh, Pa., for defendants.

OPINION

COHILL, District Judge.

Plaintiff, DiCesare-Engler Productions, Inc. (" D-E" ), brought an action in four counts in the Court of Common Pleas of Allegheny County, Pennsylvania (" state court" ) against defendants Mainman Ltd. (" Mainman" ) and David Bowie (" Bowie" ) for damages allegedly resulting from Mainman's cancellation of a concert that Bowie was to have performed at the Cincinnati Gardens, Cincinnati, Ohio on June 25, 1974. The suit was removed to this court, and, on Bowie's motion, this court struck a default judgment it had entered against Bowie. See DiCesare-Engler Productions Inc. v. Mainman Ltd., 421 F.Supp. 116 (W.D.Pa.1976) (detailing procedural history). D-E again attempted to serve Bowie with process and took a second default judgment after Bowie again had failed to file an appearance in the case.

Bowie has moved to strike the second default judgment, asserting improper service of process and a lack of personal jurisdiction. Mainman has moved to dismiss the complaint for lack of personal jurisdiction and, as to Counts II and IV, for failure to state a claim upon which relief can be granted. We consider the motions separately.

I.

Bowie's Motion to Strike Default Judgment

Fed.R.Civ.P. 55(c) provides that a judgment by default may be set aside in accordance with Fed.R.Civ.P. 60(b). Rule 60(b)(4) specifies in pertinent part:

" On motion and upon such terms as are just, the court may relieve a party . . . from a final judgment (if) . . . (4) the judgment is void."

A judgment is void not if it is merely erroneous, but if the court rendering it lacked jurisdiction over the parties or the subject matter or denied a party due process. 11 C. Wright & A. Miller, Federal Practice and Procedure s 2862 (1973). We must consider, therefore, whether D-E

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served Bowie in accordance with the so-called Pennsylvania Long-Arm Statute, 42 Pa.C.S.A. s 8301 et seq. 1, as authorized by Fed.R.Civ.P. 4(d)(7), and whether this court can exercise personal jurisdiction over Bowie pursuant to that statute.

A. Service of Process

42 Pa.C.S.A. s 8307 requires process to be mailed to the Department of State and to the defendant addressed to him " at his last known address." On September 6, 1977, D-E directed service to be mailed to Bowie in " Ocho Rios" (sic) Jamaica, which was an address at which Bowie resided for some time and which he designated as his permanent address on a non-resident alien income tax return Bowie filed in Ocharias, Jamaica on January 15, 1976. However, during the deposition of Attorney Stanley Diamond, held on July 6, 1976 in Los Angeles, California, in which counsel for D-E participated via a telephone hook-up, Mr. Diamond, who was Bowie's attorney in other matters, had advised counsel for D-E that, as of about May, 1976, Bowie intended to " make his permanent home" in Blonay, Switzerland. Mr. Diamond also had stated that he had, at his home, Bowie's address in Blonay. Counsel for D-E did not, however, ask Mr. Diamond to provide him with the address.

Under these circumstances, we conclude that D-E did not address process to Bowie " at his last known address." When put on notice that Bowie had moved to Blonay, Switzerland, D-E was required to make at least a minimal effort to obtain his new address. Had counsel for D-E as much as asked Mr. Diamond to provide him with the current address, we might have a different view of this matter. The fact that Bowie failed to appear at his deposition scheduled after process was mailed, judgment was entered, and the motion to strike the judgment was filed, is not relevant to D-E's efforts to obtain Bowie's last known address before attempting to serve him. Although we are inclined to allow, where necessary, the taking of the deposition of a party asserting improper service of process, plainly D-E has made an insufficient showing that it addressed process to Bowie's last known address to warrant a deposition for that purpose. See, e. g., River Plate Corp. v. Forestal Land, Timber & Ry. Co., 185 F.Supp. 832 (S.D.N.Y.1960); H. L. Moore Drug Exchange, Inc. v. Smith, Kline & French Lab., 384 F.2d 97 (2d Cir. 1967) (per curiam); 4A Moore's Federal Practice P 30.53(5) (2d ed. 1978). We find, therefore, that service of process has not been made on Bowie in compliance with 42 Pa.C.S.A. s 8307.

B. Personal Jurisdiction Over Bowie

Because this case was commenced in state court on October 28, 1975 and removed to this court on March 8, 1976, yet service has still not been made properly on Bowie, we will now consider Bowie's contentions in his motion that this court cannot exercise personal jurisdiction over him.

When a defendant appropriately challenges the existence of personal jurisdiction over him, the plaintiff has the burden of proving by a preponderance of the evidence that the court can exercise jurisdiction over the defendant. Amba Marketing Systems, Inc. v. Jobar Intern., Inc., 551 F.2d 784, 787 (9th Cir. 1977); Marshall Exports, Inc. v. Phillips, 507 F.2d 47, 49 (4th Cir. 1974); 5 C. Wright & A. Miller, Federal Rules of Civil Procedure: Civil s 1351 (1969). Rather than resting on the bare allegations of the complaint, the plaintiff is obligated to come forward with facts, by affidavit or otherwise, in support of personal jurisdiction. Amba Marketing Systems, Inc. v. Jobar Intern., Inc., supra; Wright & Miller, Supra.

Here, in response to an order of court dated September 19, 1978 in connection

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with Mainman's motion to dismiss, D-E filed affidavits detailing the events underlying its claim. According to the affidavits, Richard A. Engler, who is an officer of D-E, received a phone call from Jim Ramos, who is a representative of Creative Management Associates, Inc. (" CMA" ) inquiring whether D-E would be interested in promoting a Bowie concert in the Cincinnati Gardens on June 25, 1974. Ramos explained that one Ross Todd had arranged for the Gardens on that date but was required to withdraw from that commitment. If representatives for the Gardens would agree to substitute D-E on the lease for that date, Ramos explained, then D-E could promote the Bowie concert. After discussing the matter with Patrick J. DiCesare, another officer of D-E, who concurred with Engler that D-E should promote the concert, Ramos called Engler back, telling him that the Gardens agreed to the substitution and " the gig is yours." Ramos initiated a telephone connection between Engler and Todd to make further arrangements for the concert.

Shortly thereafter, a representative of Mainman called DiCesare to discuss the terms of " the writing which confirmed the agreement between Mainman Ltd. and (D-E) to present the David Bowie concert." DiCesare advised the representative that D-E had not yet received this writing. After a discussion about cost figures for the concert, the representative told DiCesare to send $9,595.45 as an " advance ‘ guarantee’ for the performance of . . . Bowie," which D-E did. This representative and another Mainman representative both told DiCesare to increase the cost figures in the confirming writing if they were too low.

D-E later received the proposed written agreement that was to confirm the arrangement, inked in new cost figures, and signed and returned it to CMA for Mainman's signature. An agent of Mainman called a few days later notifying D-E that CMA had not received the writing, so D-E sent a photostat of the copy it had retained. In the next two weeks, D-E received numerous phone calls from representatives of Mainman and Bowie inquiring about the progress of advance ticket sales.

The first indication of any dispute that D-E had was about five days before the concert when the Gardens called D-E to inquire why the concert was cancelled. D-E called CMA, which confirmed the cancellation, stating that Bowie would not perform before what they estimated would be less than a capacity audience. CMA refused either to furnish Bowie's services or to return the guarantee " due to (D-E's) breaches of the agreement between (D-E) and (Mainman)" for the Bowie Concert at the Gardens.

In general, D-E asserts that Bowie " has performed on many instances concerts in Pennsylvania and as such, conducts business in the Commonwealth of Pennsylvania." DiCesare affidavit filed December 8, 1978.

Affidavits by Norman Weiss, who is in charge of CMA's concert department, and Jim Ramos in large part substantiate D-E's version of defendants' activities in these negotiations,...

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