Appeal from the United States District Court for the District of New Jersey, D.C. Civ. No. 86-4170.
Seitz, Hutchinson, and Garth, Circuit Judges.
Defendants Management Recruiters of Bucks County, Inc. ("Management Recruiters") and Theodore M. Mashack appeal the order of the district court granting summary judgment in favor of plaintiff Robert T. Winzinger, Inc. ("Winzinger"). This court has jurisdiction under 28 U.S.C. § 1291 (1982).
Winzinger is a New Jersey corporation engaged in the construction business, with its principal office in Hainesport, New Jersey. Management Recruiters, a Pennsylvania corporation, is a personnel placement service located in Newtown, Pennsylvania. Defendant Mashack is president of Management Recruiters.
The record contains the following undisputed facts. In early 1986, Management Recruiters learned that Winzinger was interested in hiring an estimator. An account executive from Management Recruiters telephoned Winzinger with information about a candidate for the position. Winzinger eventually filled the position with an individual who had been referred to the firm by Management Recruiters. In its dealings with Winzinger, Management Recruiters made approximately eight telephone calls and several mailings from its Pennsylvania office, but no representative of Management Recruiters physically entered New Jersey in connection with the transaction.
After Winzinger filled the estimator position, Management Recruiters demanded payment from Winzinger of an $11,100 placement fee pursuant to an alleged fee agreement. In anticipation of efforts to collect this fee, Winzinger filed an action against Management Recruiters and Mashack in the Superior Court of New Jersey. Winzinger sought a declaratory judgment that any alleged fee agreement between itself and Management Recruiters was void and unenforceable because Management Recruiters had not complied with the requirements of the New Jersey Private Employment Agency Act ("the Act"), N.J. Stat. Ann. §§ 34:8-24 to -38 (West Supp. 1987). Winzinger also sought to have Management Recruiters enjoined from attempting to enforce the alleged agreement.
The defendants removed the action to the district court on the basis of diversity of citizenship. In their answer to the complaint, they alleged, inter alia, that application of the Act to an employment agency located outside of New Jersey would be unconstitutional. They also filed a counterclaim seeking payment of the $11,100 placement fee.
Winzinger subsequently moved for summary judgment. During the pendency of that motion, the State of New Jersey, through the Attorney General, intervened to defend the applicability of the Act to the defendants and the constitutionality of this application.
The district court granted summary judgment in favor of Winzinger. The court held that the Act applied to out-of-state agencies doing business in New Jersey, that the Act as thus applied did not violate the commerce clause of the Constitution, and that Management Recruiters' failure to comply with the Act rendered the alleged fee agreement with Winzinger void and unenforceable. See Robert T. Winzinger, Inc. v. Management Recruiters of Bucks County, Inc., 668 F. Supp. 389 (D.N.J. 1987). This appeal followed.
Our review of a district court's grant of summary judgment is plenary. In this case we must determine whether the Act applies to out-of-state employment agencies.*fn1 Neither the Supreme Court of New Jersey nor any other New Jersey court has had occasion to address this issue. As a federal court sitting in diversity, we ...