Opinion
Civil Action No. 96-4682.
June 23, 1997
MEMORANDUM
Pending before this Court is the motion of defendant Banca Popolare Dell'Irpina ("Banca") to dismiss the complaint of plaintiffs Peter Di Maggio and Continental Interiors Exports ("plaintiffs") for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. For the reasons stated below, I will grant the motion and dismiss the complaint as to Banca.
I. FACTUAL BACKGROUND
On or about April 19, 1994, plaintiffs purchased from defendant Cooperative Agricola S. Giuseppe a r.l. ("Cooperativa"), a corporate entity with its principal place of business in Italy, 27,000 cases of peeled tomatoes for distribution and sale within the United States. Plaintiffs engaged defendant General Noli Spedizioni Internazionali ("Noli"), to effectuate the export of the tomatoes from Italy to the United States. According to plaintiffs, Noli failed to file the proper entry notices with the customs department and the Food and Drug Administration, and the tomatoes could not travel to their intended destination. CoreStates Bank in Pennsylvania issued a letter of credit in the amount of $200,000, securing payment of plaintiffs. Defendant Banca Popolare Dell'Irpina, a bank with its registered office in Italy, received disbursements from CoreStates, pursuant to the letter of credit, and credited such disbursements to the account of Cooperativa. Plaintiffs have filed this lawsuit against Cooperativa; Antonio Russo, the legal representative of Cooperativa; Aldo Giannoni, the president of Cooperativa; Mario Contursi, the accountant of Cooperativa; Noli; and Banca, asserting claims of rescission of contract, fraud, fraudulent misrepresentation, coercion and extortion.
II. LEGAL STANDARD
A federal district court may exercise "personal jurisdiction over a nonresident of the state in which the court sits to the extent authorized by the law of that state." Provident Nat'l Bank v. California Fed. Sav. Loan Ass'n, 819 F.2d 434, 436 (3d Cir. 1987). The long-arm statute of Pennsylvania provides for both general and specific 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." 42 Pa. Cons. Stat. Ann. § 5322(b). The Due Process Clause of the Fourteenth Amendment limits the reach of a long-arm statute such that a court may assert personal jurisdiction only when the defendant establishes "minimum contacts" in the forum state, by deliberately engaging in significant activities or by creating continuing obligations such that he has purposefully "availed himself of the privilege of conducting business there." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-76 (1985); see International Shoe Co. v. Washington, 326 U.S. 310, 316-17 (1945). The nature of the conduct and connection of a defendant with the forum state must be such that the defendant should reasonably anticipate being haled into court in the forum state.See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). A defendant should not be subjected to a jurisdiction "solely as a result of `random,' `fortuitous,' or `attenuated' contacts. . . ." Burger King, 471 U.S. at 475.
Once the defendant raises a personal jurisdiction defense, the burden of establishing the court's jurisdiction rests with the plaintiff. Provident, 819 F.2d at 437. To meet this burden, plaintiffs must make a prima facie showing of either specific or general jurisdiction. See Mellon Bank (East) PSFS, Nat'l Ass'n v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992); Provident, 819 F.2d at 437. Plaintiff's jurisdictional allegations must be supported by competent evidence, that is affidavits, documents, or depositions. Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 66-67 n. 9 (3d Cir. 1984). Any conflict in the competent evidence submitted by the parties must be resolved in favor of the plaintiff. DiMark Mktg., Inc. v. Louisiana Health Serv. Indem. Co., 913 F. Supp. 402, 405 (E.D. Pa. 1996).
III. DISCUSSION
Specific personal jurisdiction arises from a defendant's activities in the forum state that relate to the cause of action being litigated. Dollar Sav. Bank v. First Sec. Bank, 746 F.2d 208, 211 (3d Cir. 1984). According to the complaint, Banca received disbursements from CoreStates bank by virtue of a letter of credit issued by CoreStates Bank. In Empire Abrasive Equipment Corp. v. H.H. Watson, Inc., a Rhode Island bank issued a letter of credit to a Pennsylvania manufacturer, Empire Abrasive Equipment, to secure payment from the buyer of the goods sold by Empire Abrasive Equipment. The buyer cancelled the order and Empire Abrasive Equipment sued the Rhode Island bank for failure to honor its letter of credit. Empire Abrasive Equip. Corp. v. H.H. Watson, Inc., 567 F.2d 554, 556 (3d Cir. 1977). The Court of Appeals for the Third Circuit found that a district court in Pennsylvania had no personal jurisdiction over the Rhode Island bank, stating, in pertinent part:
Empire had no direct dealings with the bank with respect to the issuance of the letter of credit, in Pennsylvania or elsewhere. The bank did nothing in Pennsylvania. It in no way invoked the protection of Pennsylvania law. If there is a cause of action against the bank, that cause of action arises out of the bank's activities in Rhode IslandEmpire, 567 F.2d at 558.
In Empire, the district court in Pennsylvania had no jurisdiction over the foreign bank that issued the letter of credit to a Pennsylvania corporation. In the case sub judice, Banca, the foreign bank, did not issue the letter of credit. It merely received funds transferred pursuant to the letter of credit issued by CoreStates bank and distributed such funds according to the terms of the letter of credit. Thus, Banca is even farther removed from the underlying transaction than the bank inEmpire. Banca did not have any contact with Pennsylvania pertaining to the underlying facts of the instant lawsuit and did not invoke the protection of Pennsylvania law. Accordingly, I find that this Court lacks specific personal jurisdiction over Banca.
General personal jurisdiction may exist where the claims of plaintiffs are not related to or do not arise out of the defendant's contact with the forum, if plaintiffs show that the foreign corporation had systematic and continuous contacts with the forum state. See Helicopteros Nacionales De Columbia v. Hall, 466 U.S. 408, 416 (1984). To establish general jurisdiction, plaintiffs must show more than mere minimum contacts and must prove such contacts with reasonable particularity. See Provident, 819 F.2d at 437; Gehling v. St. George's Sch. of Med., Ltd., 773 F.2d 539, 542 (3d Cir. 1985).
Banca filed the affidavit of its president Ernesto Valentino ("Valentino") denying any presence of Banca in the United States and specifically Pennsylvania. According to Valentino, Banca has no place of business in Pennsylvania, does not own any real or personal property in Pennsylvania, and does not keep any deposits or other assets in Pennsylvania. Aff. of Valentino ¶ 2. Banca does not have a license to transact business, a telephone listing, or a post office box or other mailing address in Pennsylvania. Aff. of Valentino ¶ 2. Banca does not have any officers, directors, or employees who reside in Pennsylvania nor does it send agents or other representatives to Pennsylvania. Aff. of Valentino ¶¶ 2, 3. Finally, Banca does not solicit business or pay taxes in Pennsylvania. Aff. of Valentino ¶¶ 2, 3.
The only evidence of systematic and continuous business contacts provided by plaintiffs is (1) a letter from Abington Savings Bank ("ASB") to Banca informing Banca that ASB will consider issuing an unconditional letter of credit stating that Di Maggio has the funds necessary to purchase merchandise, see Memorandum of Plaintiffs Ex. A and (2) a statement from counsel for plaintiffs asserting that upon information and belief of counsel, Banca regularly conducts business in the United States and particularly in the Eastern District of Pennsylvania, see Aff. of Di Massa ¶ 2.
The letter from ASB confirms that Di Maggio requested ASB to issue the letter of credit in order to ensure the recipient of the letter that Di Maggio held sufficient funds to purchase merchandise. The letter indicates Di Maggio's connection with Pennsylvania — Di Maggio interacted with a bank in Pennsylvania and that Di Maggio held assets in Pennsylvania — but reveals nothing about Banca's connection with Pennsylvania. Plaintiffs concede that Banca refused the proposed letter of credit from ASB and accepted one from CoreStates Bank instead. As the mere recipient of a letter from a bank in Pennsylvania, Banca did not avail itself of the privilege of conducting business in this forum. See Burger King, 471 U.S. at 476.
The statement of Di Massa is not sworn or notarized and is, thus, not tantamount to an affidavit. See Radich v. Goode, 886 F.2d 1391, 1394-95 (3d Cir. 1989) ("We cannot diminish the value of an affidavit by permitting an attorney's unsworn statement to replace it."). This unsworn statement containing conclusory allegations of continuous and systematic contacts is insufficient to rebut the specific facts set forth in the affidavit of Valentino attached to the memorandum of defendant.See Oliver v. Sid Bernstein, Ltd., No. CIV.A.96-4471, 1996 WL 741889, at *2-3 (E.D. Pa. Dec. 10, 1996) (dismissing claims upon failure of plaintiff to submit affidavits or other proof in support of jurisdiction to rebut sworn affidavit denying contacts with forum); International Lithographing Corp. v. Central Sales, Inc., No. CIV.A.90-4506, 1992 WL 38322, at *2 (E.D. Pa. Feb. 20, 1992) (unsworn statements of attorney insufficient to rebut the sworn affidavit of defendant denying business contacts in Pennsylvania as well as involvement in alleged transactions).
Plaintiffs request discovery on the issue of personal jurisdiction. A district court has discretion whether to hold in abeyance a decision on a motion to dismiss for lack of personal jurisdiction to enable a party to employ discovery on the jurisdictional issue. Rose v. Granite City Police Dep't, 813 F. Supp. 319, 321 (E.D. Pa. 1993); see Oliver, 1996 WL 741889, at *1. I find that plaintiffs have failed to set forth even the minimum requirements for a prima facie showing for personal jurisdiction and are not entitled to discovery. See Orange Products, Inc. v. Winters, No. CIV.A.94-6004, 1995 WL 118461, at *5 (E.D. Pa. Mar. 21, 1995) (denying request for discovery where plaintiff failed to demonstrate a prima facie basis for personal jurisdiction); Rose, 813 F. Supp. at 321 (denying request for discovery where plaintiff failed to make a threshold prima facie showing of jurisdiction). Therefore, I will deny the request for discovery and dismiss the complaint against Banca.
An appropriate order follows.
ORDER
AND NOW, this 23rd day of June, 1997, upon consideration of the motion of defendant Banca Popolare Dell'Irpina to dismiss the complaint pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, and the responses of the various parties thereto, having found that plaintiffs have failed to satisfy their burden to set forth facts showing that this Court has specific or general personal jurisdiction over defendant Banca Popolare Dell'Irpina, and for the reasons discussed in the foregoing memorandum, it is accordingly hereby ordered that the motion is GRANTED and the complaint is dismissed with prejudice against Banca Popolare Dell'Irpina.AND IT IS FURTHER ORDERED that (1) the caption of this case is hereby amended to delete "BANCA POPOLARE DELL'IRPINA," (2) the Clerk is directed to accomplish the deletion on the docket, and (3) the parties shall henceforth cease to include the deleted party in their recitation of the caption of this case.