DiMARK MKT. INC. v. La. Health Serv. & Indem. Co.

• Decision Date: 25 January 1996
• Docket Number: Civ. A. No. 95-CV-3161.
• Citation: 913 F. Supp. 402
• Parties: DiMARK MARKETING, INC. v. LOUISIANA HEALTH SERVICE AND INDEMNITY COMPANY d/b/a Blue Cross and Blue Shield of Louisiana.
• Court: U.S. District Court — Eastern District of Pennsylvania

913 F. Supp. 402

DiMARK MARKETING, INC. v. LOUISIANA HEALTH SERVICE AND INDEMNITY COMPANY d/b/a Blue Cross and Blue Shield of Louisiana.

Civ. A. No. 95-CV-3161.

United States District Court, E.D. Pennsylvania.

January 25, 1996.

COPYRIGHT MATERIAL OMITTED

Alan S. Gold and Steven M. Zelitch, Monaghan & Gold, P.C., Elkins Park, PA, for Plaintiff.

Jay H. Calvert, Jr. and Suzan DeBusk Paiva, Morgan, Lewis & Bockius, Philadelphia, PA, for Defendant.

MEMORANDUM

JOYNER, District Judge.

Plaintiff DiMark Marketing, Inc. (DiMark) is a Pennsylvania corporation in the business of providing marketing and advertising services to other companies. Defendant Louisiana Health Service and Indemnity Company d/b/a Blue Cross and Blue Shield of Louisiana (Blue Cross) is a Louisiana corporation in the business of providing health insurance and self-funded administration for Louisiana-based companies and individuals. In 1991, DiMark first entered into a contract with Blue Cross to provide market research regarding potential target customers for Blue Cross in Louisiana and to then solicit those potential customers. In April, 1994, Blue Cross and DiMark entered into the contract (the 1994 Agreement) that is at issue in this lawsuit.¹

This Memorandum addresses Blue Cross's motion to dismiss the complaint against it for lack of personal jurisdiction, to dismiss the complaint for improper venue or in the alternative, to transfer the action to the United States District Court for the Middle District of Louisiana.

PERSONAL JURISDICTION

If challenged, the burden is on plaintiff to prove personal jurisdiction. Grand Entertainment Group v. Star Media Sales, 988 F.2d 476, 482 (3d Cir.1993). Prior to trial, a plaintiff need only make a prima facie showing of jurisdiction and courts must take the plaintiff's facts as true for the purposes of the analysis. Mellon Bank PSFS Nat'l Ass'n v. Farino, 960 F.2d 1217, 1223 (3d Cir.1992); National Cathode Corp. v. Mexus Co., 855 F.Supp. 644, 647 (S.D.N.Y. 1994).

Federal courts have personal jurisdiction over non-resident defendants to the extent permitted in the state in which the federal court sits. Fed.R.Civ.P. 4(e). Therefore, our first step is to examine Pennsylvania law. Relevant to this action, Pennsylvania's long-arm statute provides specific personal jurisdiction² over a person for causes of action arising from that person "transacting any business in this Commonwealth," or "causing harm or tortious injury by an act or omission in and outside this Commonwealth." 42 Pa.Cons.Stat.Ann. § 5322(a)(1), (3) & (4) (1981 & Supp.1995). In addition, Pennsylvania's jurisdiction extends 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." Id. at § 5322(b).

The United States Supreme Court, in turn, has defined the due process limit of Constitutionally permitted non-resident jurisdiction in a series of decisions including International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) and Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). It has held that jurisdiction is proper when:

the contacts proximately result from actions by the defendant himself that create a `substantial connection' with the forum State. Thus where the defendant `deliberately' has engaged in significant activities within a State, or has created `continuing obligations' between himself and residents of the forum, he manifestly has availed himself of the privilege of conducting business there.

Burger King, 471 U.S. at 475-76, 105 S.Ct. at 2183-84.

Accordingly, there must be some affirmative act "by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958). These acts must be "such that the defendant should reasonably anticipate being haled into court" in the forum state. World-Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. at 567.

The Third Circuit has repeatedly held that courts should take a "highly realistic" view when deciding whether to assert personal jurisdiction over a non-resident defendant. Mellon Bank, 960 F.2d at 1224; Grand Entertainment, 988 F.2d at 482. Courts should take into account "the relationship among the forum, the defendant and the litigation," and accordingly, "prior negotiations and contemplated future consequences, along with the terms of the contract" should be considered. Mellon Bank, 960 F.2d at 1221, 1224 (quoting Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2579-80, 53 L.Ed.2d 683 (1977)).

Although each situation must be considered on its own facts, guidance may be taken from decisions in other lawsuits. For example, courts have found specific jurisdiction when non-resident defendants negotiate the contract that gives rise to the cause of action in the forum state. See e.g. Carteret Savings Bank v. Shushan, 954 F.2d 141, 147-48 (3d Cir.), cert. denied, 506 U.S. 817, 113 S.Ct. 61, 121 L.Ed.2d 29 (1992) (specific jurisdiction found when cause of action was misrepresentations made at in-forum meeting); National Cathode Corp. v. Mexus Co., 855 F.Supp. 644, 647 (S.D.N.Y.1994) (single in-state meeting was sufficient to grant specific jurisdiction over non-resident defendant when the meeting was "essential to formation of the contract at the heart of this action"); Western Union Telegraph Co. v. T.S.I., Ltd., 545 F.Supp. 329, 335 (D.N.J.1982) ("importance of visits to the forum state to negotiate a contract underlying the suit has been recognized by many other courts as well" and citing cases). Specific jurisdiction can also be based on mail and telephone communications directed to the forum. Mesalic v. Fiberfloat Corp., 897 F.2d 696, 701 (3d Cir. 1990).

It is always necessary, however, that the defendant's contacts be purposeful and voluntary and that they give rise to the cause of action. So, in Sunbelt Corp. v. Noble, Denton & Assoc., Inc., 5 F.3d 28 (3d Cir. 1993), the Third Circuit held that several post-formation telephone communications with the forum could not be the basis for jurisdiction when those communications were not the basis for the cause of action. Id. at 33. Further, the Court held that the mere fact that the non-resident defendant had entered into a contract with a forum resident was insufficient to show purposeful availment of the forum. Id. As a result, it found no specific jurisdiction in the proposed forum. See also Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 66 (3d Cir. 1984) (non-resident defendant had several contacts with forum, but because none of them gave rise to the cause of action, no specific jurisdiction); Romann v. Geissenberger Mfg. Corp., 865 F.Supp. 255, 263 (E.D.Pa. 1994) (same).

In light of the above, we turn now to DiMark's complaint and the evidence presented to us by the parties. Blue Cross presents evidence that it has virtually no ties with Pennsylvania. It demonstrates that it is not incorporated in Pennsylvania, is not authorized, licensed or registered to do business in Pennsylvania nor has any employees in Pennsylvania. Blue Cross does not solicit customers or advertise in Pennsylvania and has no telephone, mail box, mailing address or property in Pennsylvania. Only .075% of its 280,000 customers have a mailing address in Pennsylvania. Blue Cross also contends that it executed the allegedly breached 1994 Agreement in Louisiana, that the 1994 Agreement was aimed solely at Louisiana residents and that it included a Louisiana choice of law provision.

Blue Cross attests that any contacts it may have with Pennsylvania are either random and fortuitous or are unilateral acts of DiMark that do not constitute affirmative acts of Blue Cross. Further, it contends that phone calls and mail directed at a forum are insufficient to be minimum contacts under the due process clause. Finally, Blue Cross attempts to distinguish DiMark's caselaw because it involves situations where the tort arose directly out of the contact with the forum, such as claims that material misrepresentations were made during an in-state meeting. Distinguishing Carteret, 954 F.2d 141; Grand Entertainment, 988 F.2d 476.

In response, DiMark's evidence is that the "meat" of the 1994 Agreement, the Marketing and Retention Plan (Marketing Plan) referred to in section 1.1 of the 1994 Agreement, was negotiated at a two-day meeting in Pennsylvania after Blue Cross sent five of its employees to meet with DiMark personnel and tour DiMark's facilities.³ According to DiMark, the Marketing Plan forms "virtually the entire basis for determining the performance obligations of DiMark and the payment obligations of Blue Cross in connection with the 1994 Agreement." Verification of Barbara Dougherty. DiMark contends that this in-state negotiation is sufficient to vest specific jurisdiction because the cause of action arises out of the negotiations that were conducted here.

Also according to DiMark, the 1994 meeting was the fifth such trip to Pennsylvania by Blue Cross employees, the first four taking place during the term of earlier contracts. In addition, DiMark's evidence is that between four to five telephone calls per month were made between DiMark and Blue Cross during the term of the 1994 Agreement and that almost half of those calls were made by Blue Cross into Pennsylvania. Further, Blue Cross sent checks to DiMark in Pennsylvania and the 1994 Agreement was executed by DiMark in Pennsylvania. Finally, DiMark contends that the 1994 Agreement was almost wholly performed in Pennsylvania, that Blue Cross knew that DiMark operated in Pennsylvania and that DiMark's previous work for Blue...