Opinion
DOCKET NO. A-4985-10T4
09-18-2012
S CUBE SOFT, INC., Plaintiff-Appellant, v. MADHU SANIKOMMU, Defendant-Respondent.
Archer & Greiner, P.C., attorneys for appellant (Patrick Papalia, of counsel; Patrick A. Ascolese, on the brief). Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Harris.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-9396-10.
Archer & Greiner, P.C., attorneys for appellant (Patrick Papalia, of counsel; Patrick A. Ascolese, on the brief).
Respondent has not filed a brief. PER CURIAM
S Cube Soft, Inc. (S Cube) appeals from the May 13, 2011 final order dismissing its complaint for lack of personal jurisdiction over defendant Madhu Sanikommu. We affirm.
I.
We gather our facts from the limited record presented in the Law Division as part of Sanikommu's motion to dismiss the complaint for lack of personal jurisdiction. Because there was no jurisdictional discovery, we resort to the complaint and two motion certifications to guide our disposition of this appeal.
S Cube is a corporation engaged in the business of "provid[ing] information technology consultants to computer consulting companies for placement with those companies' end-clients." In January 2010, S Cube was tasked to find a Java programmer for "Deloitte." Because S Cube did not have a Java consultant on its staff, it advised Deloitte that it "would need to subcontract the consultant through another entity."
The record does not illuminate the nature of Java or the specific work required by Deloitte.
S Cube contacted non-party Meridian Technologies, Inc. (located in Farmington Hills, Michigan) and inquired if it had any Java-proficient consultants who were available to be placed at Deloitte's facility in Lansing, Michigan. Meridian provided Michigan-resident Sanikommu's name to S Cube.
On January 22, 2010, Sanikommu spoke by telephone with and an unknown representative of S Cube. The record does not reveal who initiated the call, but Sanikommu was advised that S Cube was a "New Jersey information technology consulting firm based and located in New Jersey." Sanikommu authorized S Cube to proceed with his placement with Deloitte.
S Cube tendered Sanikommu's resume to Deloitte, which approved Sanikommu for its project. For reasons that do not appear in the record, Deloitte insisted that Sanikommu's work be placed through non-party "Technosoft."
According to S Cube, Sanikommu agreed to this arrangement when he accepted the assignment. For six months, Sanikommu rendered services to Deloitte. He submitted timesheets every week through Technosoft, which were ultimately processed in New Jersey by S Cube, resulting in payments being made to Sanikommu's employer, Meridian, which in turn (we presume) paid Sanikommu. The details of this convoluted arrangement are not explained in the record.
In June 2010, Sanikommu called Satish Maneru, S Cube's President, asking if he could "leave his employment with Meridian and work directly for S Cube as an S Cube New Jersey employee on the same project." Maneru indicated that such an arrangement would "be a breach of S Cube's agreements in connection with [Sanikommu's] placement." Shortly thereafter, Sanikommu stopped submitting timesheets to Technosoft.
The record does not contain copies of any written agreements between any of the participants.
Maneru called Sanikommu to inquire why he was no longer submitting timesheets. Sanikommu advised Maneru that "he had left the assignment at Deloitte for another position elsewhere." Two weeks later, Maneru discovered that Sanikommu had become an employee of Technosoft and was still working at Deloitte.
S Cube commenced this action against Sanikommu alone. It sought remedies for tortious interference with contract and business relations, unjust enrichment, fraud and misrepresentation, and unfair competition. Sanikommu responded to the complaint by filing a motion to dismiss.
After oral argument, the court granted the motion, finding that S Cube had failed to demonstrate a prima facie case of either general or specific jurisdiction over Sanikommu due to Sanikommu's lack of minimum contacts with this state. The court wrote:
[Sanikommu] in this case is a resident of Michigan, and was an "at will employee" with Meridian Technologies in Michigan; [Sanikommu] did not have an employment contract with S Cube. None of the actions by [Sanikommu] amount to purposeful conduct that would make it reasonable for [Sanikommu] to be haled into court in NewThis appeal followed.
Jersey. In fact, much of the contact that [Sanikommu] has had with New Jersey is the result of the unilateral activities of [S Cube]; [S Cube] contacted Meridian Technologies, Inc. in order to recruit one of [its] employees for a project in Michigan, and [S Cube] reached out to [Sanikommu] regarding said employment. The only purposeful contact that [Sanikommu] ha[d] with New Jersey was when he called [S Cube] to ask if he could leave his employment with Meridian and work directly for S Cube. The phone calls between [S Cube] in New Jersey and [Sanikommu] in Michigan are not sufficient to draw [Sanikommu] into New Jersey for the purposes of personal jurisdiction.
II.
S Cube argues on appeal that because Sanikommu
had specific and purposeful contacts with S Cube in its New Jersey office, accepted employment through S Cube's New Jersey office, availed himself of the benefit of accepting employment and wages through S Cube, was aware that his employment with Deloitte was a result of his placement through S Cube's New Jersey office, was aware that his placement through S Cube would result in payments going to and from S Cube in New Jersey, directly communicated with S Cube's representatives via telephone in New Jersey on multiple occasions and committed the intentional tort of fraud and intentional misrepresentation which caused damage to a New Jersey entity,specific jurisdiction exists and its complaint should not have been dismissed. Alternatively, S Cube contends that it is entitled to jurisdictional discovery to determine whether Sanikommu's "prior contacts within this State" might invoke general jurisdiction. We are not persuaded by either argument.
Sanikommu's certification stated that "the only time [he] ha[s] been in the state of New Jersey" was during a layover that was part of a flight itinerary from India to Michigan in February 2008.
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On appeal, we review the law de novo and owe no deference to the interpretative conclusions reached by the motion court. Aronberg v. Tolbert, 207 N.J. 587, 597 (2011). A ruling on jurisdictional issues is similarly reviewed de novo, as the question of in personam jurisdiction is a question of law. Mastondrea v. Occidental Hotels Mgmt. S.A., 391 N.J. Super. 261, 268 (App. Div. 2007) (citing Vetrotex Certainteed Corp. v. Consol. Fiber Glass Prods. Co., 75 F.3d 147, 150 (3d Cir. 1996)).
New Jersey's long-arm jurisprudence permits our courts to exercise personal jurisdiction over out-of-state defendants to the extent permitted by the federal Constitution. See R. 4:4-4(b)(1); N.J. Dep't of Treasury, Div. of Inv. ex rel. McCormac v. Qwest Commc'ns Int'l Inc., 387 N.J. Super. 487, 498 (App. Div. 2006), cert. denied sub nom. Szeliga v. N.J. Dep't of Treasury, 550 U.S. 935, 127 S. Ct. 2263, 167 L. Ed. 2d 1092 (2007), Anschutz v. N.J. Dep't of Treasury, 550 U.S. 935, 127 S. Ct. 2262, 167 L. Ed. 2d 1092 (2007).
Two fundamental principles are consistently applied in the personal jurisdiction cases decided by the U.S. Supreme Court under the federal Due Process Clause since International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945). First, "due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it[.]" Id. at 316, 66 S. Ct. at 158, 90 L. Ed. at 102. Second, the minimum contacts must be of a nature and extent "such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" Ibid. (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S. Ct. 339, 343, 85 L. Ed. 278, 283 (1940)).
"[T]he requisite quality and quantum of contacts is dependent on whether general or specific jurisdiction is asserted[.]" Citibank, N.A. v. Estate of Simpson, 290 N.J. Super. 519, 526 (App. Div. 1996). General jurisdiction may be obtained where Sanikommu's contacts with the forum state are "'continuous and substantial,'" regardless of where the cause of action arose. Wilson v. Paradise Vill. Beach Resort & Spa, 395 N.J. Super. 520, 528 (App. Div. 2007) (quoting Charles Gendler & Co. v. Telecom Equip. Corp., 102 N.J. 460, 472 (1986)). Specific jurisdiction, which S Cube seeks to invoke, "is established when a defendant's acts within the forum-state give rise to the cause of action." McDonnell v. Illinois, 319 N.J. Super. 324, 333 (App. Div. 1999) (quoting Jacobs v. Walt Disney World, Co., 309 N.J. Super. 443, 452 (App. Div. 1998)), aff'd, 163 N.J. 298 (2000)).
In the context of specific jurisdiction, we "focus on 'the relationship among the defendant, the forum, and the litigation.'" Blakey v. Cont'l Airlines, Inc., 164 N.J. 38, 67 (2000) (quoting Shaffer v. Heitner, 433 U.S. 186, 204, 97 S. Ct. 2569, 2579, 53 L. Ed. 2d 683, 698 (1977)). Absent territorial presence in the forum, "'it is essential that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefit and protection of its laws.'" Waste Mgmt., Inc. v. Admiral Ins. Co., 138 N.J. 106, 120 (1994) (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 1240, 2 L. Ed. 2d 1283, 1298 (1958)). The unilateral activities or actions of a plaintiff are not enough. Blakey, supra, 164 N.J. at 67.
The purposeful availment requirement ensures that an out-of-state defendant "will not be compelled to participate in litigation in a foreign jurisdiction 'on the basis of random, fortuitous, or attenuated contacts or as a result of the unilateral activity of some other party.'" YA Global Invs., L.P. v. Cliff, 419 N.J. Super. 1, 9 (App. Div. 2011) (quoting Waste Mgmt., supra, 138 N.J. at 121). The "mere foreseeability" that Sanikommu's conduct could have "some effects in the forum state" is not sufficient to establish jurisdiction. Bovino v. Brumbaugh, 221 N.J. Super. 432, 436 (App. Div. 1987). Rather, "[t]he question is whether 'the defendant's [purposeful] conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there.'" Blakey, supra, 164 N.J. at 67 (quoting Lebel v. Everglades Marina, Inc., 115 N.J. 317, 324 (1989)).
This inquiry must be conducted on a case-by-case basis. Shah v. Shah, 184 N.J. 125, 138 (2005). In particular, the court should consider:
the burden on the defendant, the interests of the forum State, and the plaintiff's interest in obtaining relief. It must also weigh in its determination "the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and the shared interest of the several States in furthering fundamental substantive social policies."
[Asahi Metal Indus. Co. v. Superior Court of Cal. , 480 U.S. 102, 113, 107 S. Ct. 1026, 1033, 94 L. Ed. 2d 92, 105 (1987) (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S. Ct. 559, 564, 62 L. Ed. 2d 490, 498 (1980)).]
Finally, because jurisdiction is at issue, the burden is on S Cube to "allege or plead sufficient facts" to warrant the court's exercise of jurisdiction. Blakey, supra, 164 N.J. at 71. This may be accomplished by way of "'sworn affidavits, certifications, or testimony.'" Jacobs, supra, 309 N.J. Super. at 454 (quoting Catalano v. Lease & Rental Mgmt. Corp., 252 N.J. Super. 545, 547-48 (Law Div. 1991)).
The issue before us is whether S Cube met the low-threshold burden of establishing Sanikommu's minimum contacts with New Jersey to warrant our exercise of jurisdiction. It is undisputed that Sanikommu neither resides nor does business in New Jersey, and that at all times pertinent Sanikommu acted in Michigan on behalf of entities located there. The significant actions in this matter were performed by Michigan actors. The only link to New Jersey is S Cube's place of business.
Here, S Cube sought out Sanikommu (through Meridian) in Michigan. The telephone communications between S Cube's representatives and Sanikommu were incidental to the consultancy placement with Deloitte in Michigan. Sanikommu did not affirmatively reach out to S Cube in New Jersey; rather S Cube retained Sanikommu based upon Meridian's recommendation and Deloitte's approval, both of which occurred in Michigan. Any fraud (or other tort) that was allegedly committed occurred in Michigan. New Jersey's connection with the dispositive events in this matter is virtually nonexistent.
Moreover, New Jersey has no interest in adjudicating whether a Michigan resident failed to perform a contract or breached a duty in Michigan. While S Cube concededly has an interest in convenient and effective relief, that interest may as readily be achieved in Michigan, where S Cube placed Sanikommu and where its ultimate client, Deloitte, was located. S Cube, having decided to enter the Michigan job market through the placement of a Java consultant there, would be fully able to vindicate its interests by litigating disputes in that forum.
The quarrel between S Cube and Sanikommu has little connection, much less a substantial connection, with the forum state. Cf. Avdel Corp. v. Mecure, 58 N.J. 264, 272 (1971) (a nonresident defendant who does not transact business in a state, may nonetheless be amenable to suit "where he enters into a contract which will have significant effects in that state"). We are satisfied that the demonstrable facts do not support the exercise of personal jurisdiction over Sanikommu and that to so find would "'offend traditional notions of fair play and substantial justice.'" Shah, supra, 184 N.J. at 138 (quoting Blakey, supra, 164 N.J. at 66).
Similarly, because S Cube has not pled a prima facie case of the existence of continuous and systematic contacts in New Jersey by Sanikommu to warrant general jurisdiction, jurisdictional discovery is inappropriate.
Affirmed.
I hereby certify that the foregoing
is a true copy of the original on
file in my office.
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CLERK OF THE APPELLATE DIVISION