problems associated with the sale of the Plan by out-of-state dealerships. In the letter, Hudson solicited GM's assistance in restricting sale of the Plan to those dealers within the marketing area of the customer. He closed by noting that if GM was unable to restrict sales by April 1, 1986, he would have no other alternative but to begin writing General Warranty Policies. Answers to interrogatories indicated that no response to the letter was received and that this defendant had no contact with any other entity pertaining to Regency's business or with Regency itself.
Lyons Motors, Inc.
Lyons was incorporated and authorized to conduct business only in the State of Montana. It had no business relationships with any entity conducting business in the State of New Jersey. Lyons addressed two letters to representatives of GM relating to concerns it had regarding interference with its business relationships with its customers. It had no oral communication with GM. The first letter, dated August 17, 1985, may be fairly characterized as an angry letter of inquiry. The second letter, dated February 26, 1986, commented on customer relations as a result of Regency's sales program and suggested that GM make inquiry of other dealers as to whether their customers were also "harassed by this 'Regency Oldsmobile.'" The second letter concluded that if GM wanted Lyons to sell the Plan, GM should "curb 'this other dealer' from calling on our customers and let us do our job."
At no time did GM respond to either of these letters. Lyons also had no direct contact with Regency.
Childress is an Arizona corporation authorized to do business in that state. It, too, had no business relationships with any other entities conducting business in the State of New Jersey. Many of its customers who had purchased the Plan subsequently received solicitations from Regency and notified Childress of these solicitations. Based upon their customers' concern, Childress wrote a letter of inquiry to GM Protection Plan Supervision. This letter expressed concern that GM was leaking its customers' names to "this dealership in New Jersey or Pennsylvania." It closed with a request that GM protect their customers' names from falling into the hands of their competitors.
As a result of a GM reply, Childress learned that Regency was purchasing lists of customers' names from R.L. Polk Registration Lists. Childress sent another letter to A.J. Thomas, GM Protection Plan Manager, which restated its concerns and voiced an opinion as to how GM should resolve the problem of extra-geographical Plan solicitation.
Any discussion pertaining to personal jurisdiction commences with an understanding that the Due Process Clause rejects forum amenability without meaningful contacts, ties or relations to the forum state. International Shoe Co. v. Washington, 326 U.S. 310, 319, 66 S. Ct. 154, 160, 90 L. Ed. 95 (1945). Individuals are entitled to "fair warning" that a particular activity may subject them to a foreign sovereign's jurisdiction. Shaffer v. Heitner, 433 U.S. 186, 218, 97 S. Ct. 2569, 2587, 53 L. Ed. 2d 683 (1977). However, this "fair warning" requirement is satisfied when a defendant "purposefully directs" his activities to residents of a foreign forum, Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 104 S. Ct. 1473, 1478, 79 L. Ed. 2d 790 (1984), and the ensuing litigation results from alleged injuries that "arise out of or relate to" those activities. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S. Ct. 1868, 1872, 80 L. Ed. 2d 404 (1984). Under such circumstances a forum may assert specific jurisdiction over an out-of-state defendant who has not consented to suit there. See Keeton, 465 U.S. at 774, 104 S. Ct. at 1478 (persons engaged in distribution of magazines may be held accountable in a foreign forum for damages resulting there from an allegedly defamatory story); Calder v. Jones, 465 U.S. 783, 104 S. Ct. 1482, 79 L. Ed. 2d 804 (1984) (persons engaged in the editorial preparation of magazines held accountable in a foreign forum for damages resulting there from an allegedly defamatory story). This policy evolves from a state's "manifest interest" in providing its residents with a convenient forum for redressing injuries inflicted by a non-resident actor. McGee v. International Life Insurance Co., 355 U.S. 220, 78 S. Ct. 199, 2 L. Ed. 2d 223 (1957).
In Burger King Corporation v. Rudzewicz, 471 U.S. 462, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985), Justice Brennan, after a systematic and expansive review of existing authorities, concluded that "the constitutional touchstone remains whether the defendant purposefully established 'minimum contacts' in the forum state." 471 U.S. at 474, 105 S. Ct. at 2182 (citing International Shoe Co. v. Washington, supra, 326 U.S. at 316, 66 S. Ct. at 158). After rejecting the theory of foreseeability of causing injury in another state as a "sufficient benchmark" for exercising personal jurisdiction, Justice Brennan cited to the language of World-wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 567, 62 L. Ed. 2d 490 (1980), reminding that "the foreseeability that is critical to due process analysis is . . . that the defendant's conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there." Burger King, 471 U.S. 474, 105 S. Ct. at 2183 (1985). Accordingly, when a defendant deliberately engages in tortious conduct within a state from beyond its geographical boundaries, that defendant purposely avails itself of the privilege of conducting activities within the forum state and cannot be heard to complain that jurisdiction was predicated on "random, fortuitous, or attenuated" contacts. Keeton, 465 U.S. at 774, 104 S. Ct. at 1478. Thus, as stated in Burger King, U.S. at , 105 S. Ct. at 2184, ". . . because his activities are shielded by the 'benefits and protections' of the forum laws it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well."
Under Fed.R.Civ.P. 4(e) a federal district court is permitted to exercise personal jurisdiction over a non-resident to the extent allowed by rule of court of the state in which the district court is located. New Jersey's Long Arm Statute, Rule 4:4-4(c)(1) permits the exercise of jurisdiction "consistent with due process of law." In Charles Gendler & Co. v. Telecom Equip Corp., 102 N.J. 460, 469, 508 A.2d 1127 (1986), the New Jersey Supreme Court stated that New Jersey permits out-of-state service "to the uttermost limits permitted by the United States Constitution."
Plaintiff does not assert that these defendants have a continuous presence in New Jersey, thereby becoming generally amenable to the jurisdiction of this district. Rather, plaintiff claims that this court has "specific jurisdiction" over these defendants due to their contact with New Jersey arising from the wrongful conduct at issue. See Provident National Bank v. California Federal Savings & Loan Assoc., 819 F.2d 434, 437 (3d Cir. 1987) (general in personam jurisdiction sustained); Educational Testing Service v. Katzman, 631 F. Supp. 550, 554 (D.N.J. 1986) (reviewing the Third Circuit's two-step analysis for determining whether jurisdiction may be asserted over a nonresident defendant). But see Dollar Savings Bank v. First Security Bank of Utah, 746 F.2d 208, 211 (3d Cir. 1984) (jurisdiction denied).
Because the defendants each raise a jurisdictional defense and have no continuing forum presence, Regency bears the burden of particularizing sufficient minimum contacts between them and the State of New Jersey. Paolino v. Channel Home Centers, 668 F.2d 721 (3d Cir. 1981). A relationship among the defendants, the forum and the litigation is the essential foundation of in personam jurisdiction. Shaffer v. Heitner, 433 U.S. at 204, 97 S. Ct. at 2579.
Regency asserts that the dealers' presence in this litigation is appropriate because their conduct arises from forum related activity. Regency attempts to buttress its argument by reliance on Calder v. Jones, supra. In that case, defendants wrote and edited a libelous article in Florida for a national magazine that had its largest circulation in California. Personal jurisdiction in California was sustained on the theory that those who authored and edited the article intended to, and did, cause tortious injury to the targeted individual in California. Justice Reinquist, in sustaining jurisdiction, noted:
In sum, California is the focal point both of the story and the harm suffered. Jurisdiction over petitioners is therefore proper in California based on the 'effects' of their Florida conduct in California.
Calder, 465 U.S. at 790, 104 S. Ct. at 1486-1487. Since the defendant-petitioners in Calder engaged in intentional and tortious conduct and could foresee the devastating impact of their article in California, they then must have "reasonably anticipate[d] being haled into court there." World-wide Volkswagen Corp. v. Woodson, 444 U.S. at 297, 100 S. Ct. at 567.
In the instant case, a comparison of the defendant-dealers' conduct with that which occurred in Calder clearly demonstrates that an assertion of in personam jurisdiction as to each defendant-dealer fails to pass constitutional muster. See Rush v. Savchuk, 444 U.S. 320, 332, 100 S. Ct. 571, 579, 62 L. Ed. 2d 516 (1980) (each defendant-dealer's contacts with New Jersey must be assessed individually). Though the tone of the dealers' letters was angry, rhetoric of indignation falls far short of the requisite intentional tortious conduct required to establish personal jurisdiction. For example, the letters written by the dealer-defendants to GM representatives were addressed to nonforum locations and were more in the nature of an inquiry than a call-to-action. Moreover, the substance of these letters focused on the dealers' concerns over what was occurring to them and their customers in their specific geographical areas.
None of these dealers at any time contacted Regency or implemented any plans to curb Regency's nationwide sales program. The record before the court is therefore totally devoid of any conduct, direct or indirect, that would lead any of these dealers to reasonably anticipate their being haled into court in New Jersey as a result of their correspondence with GM. For this court to accede to Regency's retention of jurisdiction over these dealers would impede commercial discourse and foster a sense of unwarranted reticence for fear of being sued.
For the reasons set forth, the court finds a lack of in personam jurisdiction as to each defendant and, therefore, will dismiss Counts 10, 11, 12, 14, 15 and 16 of the amended complaint.
An order in conformity with this opinion shall be submitted by counsel for plaintiff.
Dated: May 2, 1988