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El-Maksoud v. El-Maksoud

Decided: October 5, 1989.

MARY E. DEAN EL-MAKSOUD, PLAINTIFF,
v.
HAMED A. EL-MAKSOUD, DEFENDANT



Bassler, J.s.c.

Bassler

Plaintiff Mary E. Dean El-Maksoud and defendant Hamed A. El-Maksoud were married and divorced in Egypt. Plaintiff brought this suit for equitable distribution and an accounting for partnership profits. Defendant filed a motion to dismiss the complaint arguing: (a) the absence of sufficient minimum contacts to establish personal jurisdiction, and (b) the doctrine of forum non conveniens. Before the date scheduled for oral argument defendant was personally served with the summons and complaint while visiting in New Jersey.

This case squarely raises the question whether the mere presence of the person in this State is a sufficient basis upon which to exercise personal jurisdiction over that person. The question has a considerable constitutional dimension in light of Shaffer v. Heitner, 433 U.S. 186, 97 S. Ct. 2569, 53 L. Ed. 2d 683 (1977).

Statement of Facts.

Plaintiff is 55 years of age, a United States citizen, and teaches psychology at the American University in Cairo. Defendant is 49 years of age, a retired officer from the Egyptian Air Force and resides in Cairo. Plaintiff and defendant first met while vacationing in Pennsylvania and, according to plaintiff, formed a partnership to broker the sale of lubricating oil to the Egyptian Air Force. In November 1985, they were married in Cairo; in March 1988, defendant obtained an Egyptian divorce. The following August, plaintiff filed this law suit in New Jersey, where she has a home, files tax returns and is registered to vote.

Plaintiff now seeks equitable distribution based upon the Egyptian divorce and an accounting by defendant of the profits

from the alleged partnership, which, she says, operated from Cairo as well as from her condominium in Monmouth Beach.

Defendant did not contradict plaintiff's assertion that in 1987 he purchased a condominium in his own name in Tinton Falls, New Jersey for $135,000 and the parties purchased, as tenants in common, property in Ewing Township for cash in the amount of $210,000. Nor did defendant deny that, during 1986 and 1987, defendant withdrew from a Newark bank more than $900,000 from an account in his own name. However, he did deny the existence of any partnership with plaintiff and that he had any business connections with the State of New Jersey.

In March 1989, defendant moved to dismiss the complaint for insufficiency of process and lack of personal jurisdiction with respect to the action for an accounting. The motion was denied. Subsequently, defendant renewed his motion but, in addition to lack of personal jurisdiction, advanced the doctrine of forum non conveniens as another reason for dismissing the complaint. He also sought a plenary hearing. Before the motion could be argued defendant was personally served in Monmouth Beach, New Jersey with the summons and complaint at an address alleged to be that of his paramour.

Validity of the Transient Jurisdiction Doctrine.

Physical presence is the traditional basis for in personam jurisdiction over an individual who is served while present, even though temporarily, in the forum state. See Pennoyer v. Neff 95 U.S. (5 Otto) 614, 24 L. Ed. 565 (1878). Restatement, Conflict of Laws 2d, ยงยง 27, 28 and Comments. This so-called rule of transient jurisdiction has long been recognized in New Jersey:

The state has jurisdiction over all persons within its borders for the enforcement of a transitory cause of action. "A non-resident found within the territorial jurisdiction is subject to service therein in personam, even though his presence is but temporary." [ James H. Rhodes & Co. ...


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