Opinion
Civ. No. 99-3522 (DRD).
October 14, 1999
Jonathan L. Goldstein, Esq.; Robert S. Raymar, Esq., and; Jonathan Wayne, Esq. HELLRING, LINDEMAN, GOLDSTEIN SIEGAL, LLP, Newark, New Jersey, Attorneys for Plaintiff.
Joseph A. Piesco, Jr., Esq., MORGAN, LEWIS BOCKIUS, LLP, Princeton, New Jersey, Attorneys for Defendants.
OPINION
This is a civil action brought pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623(a) et seq., alleging age discrimination as well as various pendent state law claims. The matter is now before the Court on the motion of defendant Edward H. Vick ("Vick") to dismiss the complaint as against him for lack for personal jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(2). For the reasons set forth below, defendant Vick's motion is granted.
While transfer of this case to the Southern District of New York, pursuant to 28 U.S.C. § 1404, presents a possible alternative to dismissal, plaintiff has expressed his preference to remain in this district even without defendant Vick.
STATEMENT OF FACTS
Plaintiff Michael Becker worked as an employee of defendant Young Rubicam, Inc. ("YR") and/or its wholly owned subsidiary, defendant Wunderman, Cato, Johnson ("WCJ") from 1968 until 1983, and again from 1987 to September of 1998. Both companies are advertising firms with their principal places of business in New York. Plaintiff's employment was terminated on or about September 14, 1998, at the age of 57.Plaintiff alleges that his termination was the culmination of a pattern of age discrimination committed by his employers. These allegations are directed at defendants YR and WCJ, and do not form any part of the basis of the complaint against defendant Vick. At the time of plaintiff's termination, Vick was employed as a senior executive officer with defendants YR and WCJ.
Plaintiff's claims against Vick appear in Count V of the complaint, alleging tortious interference with prospective economic advantage and contractual relationships. In August of 1998, plaintiff began to negotiate with another New York firm, Grey Advertising Direct ("Grey"), in an attempt to secure alternative employment prior to his termination. Plaintiff alleges that on or about August 6, 1998, he reached complete agreement on a contract of employment with Grey's Chairman and Chief Executive, George Wiedemann. The agreement was to be reduced to writing shortly thereafter.
Plaintiff alleges that in the interim period before the employment contract could be reduced to writing, Vick made false, disparaging, and improper comments about him to a senior officer at Grey. He further alleges that Grey retracted its offer of employment as a direct result of those statements.
Defendant Vick has moved, pursuant to Fed.R.Civ.P. 12(b)(2), to dismiss the complaint as against him for lack of personal jurisdiction. Plaintiff concedes that Vick is a resident of Bedford, New York, and so the Court must determine whether it may properly assert jurisdiction over Vick.
STANDARD OF REVIEW
In considering a motion to dismiss for lack of personal jurisdiction, plaintiff bears the burden of proving that a defendant's contacts with the forum state are sufficient to give the court personal jurisdiction over the defendant. See Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 63 (3d Cir. 1984).
A federal district court may assert personal jurisdiction over a nonresident defendant to the extent permitted by the law of the state in which the court is located. Fed.R.Civ.P. 4(e)(1). New Jersey's long-arm statute provides for personal jurisdiction over nonresidents to the fullest extent permitted by due process. See N.J. Civ.R. 4:4-4(b)(1);DeJames v. Magnificence Carriers, Inc., 654 F.2d 280, 284 (3d Cir. 1981), cert. den'd, 454 U.S. 1085 (1981).
Determining whether an assertion of personal jurisdiction comports with due process requires a two-step analysis. First, the court must determine whether the defendant has purposefully established minimum contacts with the forum state. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985). The defendant's conduct and connection with the forum state must be such that he could reasonably anticipate being haled into court there. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980), see also Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 112 (1987).
Once it has been established that a defendant has established minimum contacts with the forum state, those contacts "may be considered in light of other factors to determine whether the assertion of personal jurisdiction would comport with 'fair play and substantial justice.'"Burger King, 471 U.S. at 476-77 (quoting International Shoe Co. v. Washington, 326 U.S. 310, 320 (1945)). In an appropriate case, the burden on the defendant will be considered in light of other relevant factors, including the forum state's interest in adjudicating the dispute, the plaintiff's interest in obtaining convenient and effective relief, 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. World-Wide Volkswagen, 444 U.S. at 292. These considerations sometimes serve to establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would otherwise be required. Burger King at 477. On the other hand, the concept of "fair play and substantial justice" may defeat the reasonableness of jurisdiction even if the defendant has purposefully directed his activities at the forum state. Id. at 477-78.
DISCUSSION
A. The Effects Test
Plaintiff first urges this Court to find that defendant Vick has sufficient contact with the State of New Jersey by way of the "effects test" first set forth in Calder v. Jones, 465 U.S. 783 (1984). InCalder, the Supreme Court held that the minimum contacts necessary to support an assertion of personal jurisdiction over a nonresident defendant may be found where a defendant engages in tortious conduct directed towards the forum state. As this district has described it:
Calder establishes the proposition that, where intentional tortfeasors know that their actions will harm a plaintiff in a particular forum, and that the brunt of the injury caused by their actions will be felt in that forum, they will be subject to jurisdiction there.Wright v. Xerox Corp., 882 F. Supp. 399, 405 (D.N.J. 1995).
The breadth of the Calder decision was the subject of debate for some years, but the Third Circuit has recently joined several others in holding that "jurisdiction under Calder requires more than a finding that the harm caused by defendant's intentional tort is primarily felt within the forum." Imo Indus., Inc. v. Kiekert AG, 155 F.3d 254, 265 (3d Cir. 1998). The Third Circuit employs a three-part test, requiring plaintiff to show that:
(1) The defendant committed an intentional tort;
(2) The plaintiff felt the brunt of the harm in the forum such that the forum can be said to be the focal point of the harm suffered by the plaintiff as a result of that tort;
(3) The defendant expressly aimed his tortious conduct at the forum such that the forum can be said to be the focal point of the tortious activity;155 F.3d at 265-66.
Plaintiff contends that Vick expressly aimed his conduct at New Jersey because he knew that plaintiff lived in New Jersey and should have foreseen that his disparaging remarks would have harmful consequences for plaintiff in New Jersey. Specifically, he alleges that Vick's remarks deprived him of employment with Grey and the attendant compensation and benefits he would have earned.
Vick has submitted an affidavit stating that in fact he had no knowledge as to plaintiff's residence until learning of plaintiff's allegations in connection with this motion.
The fatal flaw in plaintiff's position, however, is that Grey is a New York firm. Thus Vick, a New York resident, is charged with tortious interference with an employment contract between plaintiff and a New York firm, negotiated in New York, to be fully performed in New York. Under such circumstances, it is clear that New York was the "focal point" of defendant's activities and that plaintiff suffered "the brunt of the harm" in New York, not New Jersey. A different situation would be presented if Vick had made his comments to a New Jersey firm, thereby destroying plaintiff's prospects for employment in New Jersey.
This fact distinguishes the present case from others relied upon by plaintiff, all of which involve defendants who purposefully directed their activities outside their home state. In Wright, the New York defendants' tortious acts were alleged to have done damage to plaintiff's reputation and career in New Jersey. 882 F. Supp. at 405. In Gusto v. Ashland Chem. Co., 994 F. Supp. 587, 592 (E.D.Pa. 1998), a Virginia defendant was alleged to have made defamatory statements about a Pennsylvania defendant in an affidavit, knowing that the affidavit would end up in Pennsylvania. Similarly, in Kopf v. Chloride Power Elec., Inc., 882 F. Supp. 1183, 1192-93 (D.N.H. 1995), a North Carolina defendant was alleged to have committed tortious acts which caused a New Hampshire plaintiff to lose his job in New Hampshire. Here, in contrast, the New York defendant's alleged conduct was calculated to cause injury to plaintiff in New York. It cannot be said that defendant purposefully directed his conduct towards this forum simply because plaintiff's injuries may commute home with him to New Jersey at the end of the day.
B. Defendant's Other Contacts with New Jersey
In the alternative, plaintiff argues that Vick's contacts with New Jersey are so continuous and systematic as to support a finding of general jurisdiction over him. See Helicopteros Nacionales v. Hall, 466 U.S. 408, 414-15 (1984). In a declaration to this Court, plaintiff avers that Vick regularly visited New Jersey in performing his duties as Chief Operating Officer of YR.
Generally, individuals performing acts in a state in their corporate capacity are not subject to personal jurisdiction in the state for those acts. Elbeco v. Estrella de Plato Corp., 989 F. Supp. 669, 676 (E.D.Pa. 1997). A recognized exception to this rule exists where a corporate agent commits a tort in his corporate capacity. Id. Where this exception applies, however, the minimum contacts necessary to support personal jurisdiction are supplied by the tortious act itself. See National Pre-Cast Crypt Co. v. Dy-Core, Inc., 785 F. Supp. 1186, 1991 (W.D.Pa. 1992) ("if the corporate officer engages in tortious conduct in his/her corporate capacity in the forum, courts will consider this conduct as contact within the forum sufficient to support a finding of personal jurisdiction over the officer in his/her individual capacity") (emphasis added). As already discussed, the tortious conduct in this case took place outside of New Jersey, and so the exception cannot apply in this case. Defendant Vick's remaining contacts with New Jersey were in his capacity as an officer of YR, and cannot subject him to personal jurisdiction in his individual capacity.
CONCLUSION
For the reasons set forth herein, defendant Edward H. Vick's motion to dismiss plaintiff's complaint as against him for lack of personal jurisdiction is granted.