is inappropriate where there are not sufficient contacts to create general jurisdiction, and the only contention for specific jurisdiction is that an individual was aware of and approved of such alleged misrepresentations. Acquiescence, even if properly established, will not suffice. ACIC's specific jurisdiction arguments fail.
III Jurisdictional Discovery
ACIC contends that if jurisdiction has not yet been established, ACIC ought to be permitted to conduct jurisdictional discovery to further probe Handal's ties, if any, to New Jersey, and cure the defect.
While jurisdictional discovery is ordinarily allowed, ACIC's request must be denied due to its frivolous jurisdictional claim. Compagnie Des Bauxites De Guinee v. L'Union Atlantique S.A. D'Assurances, 723 F.2d 357, 362 (3d Cir. 1983); Fraley v. Chesapeake & Ohio Railway, 397 F.2d 1 (3d Cir. 1968). As stated above, Handal had never visited New Jersey prior to 1994; Handal travelled to New Jersey only three times, and these trips were in connection with his role as a coordinator of the underlying litigation; Handal has never maintained an office, employees, or agents of any kind in New Jersey, nor has he ever engaged in any type of business here; and he has never owned or possessed any personal property or assets of any kind in New Jersey. Handal Aff. PP 3, 6, 7, and 8. Moreover, Handal is not a "total stranger" to ACIC in light of the involvement he has had, per ACIC's representations, in the underlying litigation. See Compagnie Des Bauxites, 723 F.2d at 362; Naartex Consulting Corp. v. Watt, 232 U.S. App. D.C. 293, 722 F.2d 779, 788 (D.C.Cir. 1983), cert. denied, 476 U.S. 1210 (1984) (jurisdictional discovery properly denied where plaintiff has had ample opportunity to take discovery of/depose defendant on the question of jurisdiction, and yet requisite contacts with the forum have not been established). There is simply no showing as to why jurisdictional discovery should be allowed. Accordingly, ACIC's claim of jurisdictional discovery is denied.
B. ACIC's communication with Lucky
On December 22, 1994, after ACIC served Handal, ACIC served Budd Lamer, as counsel for the above-named Corporate defendants in the underling litigation, with summonses on the Corporate defendants in the instant case. Budd Larner refused to accept service for the Corporate defendants on the ground that although it served as their counsel in the underlying litigation, it was not authorized to accept service on their behalf in this case.
On March 9, 1995, a few months after serving Handal
and Budd Larner, counsel for ACIC contacted William H. McGee & Company ("McGee"), defendant Lucky's New York branch office manager, to advise that ACIC was going to serve Lucky in this action. John Iacono ("Iacono") serves as general counsel for William H. McGee & Co. and is also an officer of Lucky. Iacono agreed to accept service by mail on the condition that Lucky maintain all its rights as if service was performed personally.
Lucky attacks ACIC's communications with Iacono as being ex parte, and seeks sanctions. The Court cannot so hold. ACIC communicated with Iacono as a representative of Lucky solely to query whether he and McGee would accept service of on behalf of Lucky.
According to Rule 4 (d) (3) of the Federal Rules of Civil Procedure, a managing or general agent of a corporation is authorized to accept service of process. Fed.R.Civ.P. 4(d) (3). McGee manages all affairs for Lucky's New York branch office. See Best's Insurance Reports at 2097-2098 (1994 ed.). Counsel for ACIC called McGee's general counsel to advise him that ACIC would be sending over a process server to serve Lucky in this action. (Peim Certif., P17). As general counsel for McGee and as an officer of Lucky, Iacono agreed to accept service of process by mail. He had authority to do so.
Lucky now asks the Court to penalize counsel for ACIC on the ground that any contact with Lucky or its managing agent constituted an ex parte communication, in violation of Rule 4.2 of the Rules of Professional Conduct. Lucky's argument is misplaced: it confuses form with substance. Rule 4.2 prohibits communication "about the subject of the representation" by an attorney with a represented party. Lucky's request for sanctions fails in that the communication at issue was with regard only to acceptance of service, and had no bearing to the subject matter of the action. Moreover, the communication at issue was with general counsel for McGee, who is himself a "professionally trained lawyer[,]" not likely to be coerced or confused into damaging concessions from which "the unshielded layman" is protected by Rule 4.2. See Public Serv. Elec.& Gas v. Associated Elec. & Gas, 745 F. Supp. 1037, 1039 (D.N.J. 1990). As such, any imposition of sanctions upon ACIC would be improper.
For the foregoing reasons, Handal's motion is granted and all claims against him are dismissed; and Lucky's motion for sanctions against ACIC is denied.
An appropriate Order was issued on September 27, 1995 and is annexed to this Amended Opinion for reference purposes.
NICHOLAS H. POLITAN
THIS MATTER having come before the Court on defendant Juan Handal's ("Handal") motion to quash service of process and/or to dismiss all claims against him for lack of personal jurisdiction, and on defendant Lucky Insurance Company, Ltd.'s ("Lucky") motion for sanctions; and the Court having fully reviewed the parties' submissions, and having heard oral argument in the matter; and for good cause shown as set forth more fully the accompanying Letter Opinion;
IT IS on this 27th of September, 1995,
ORDERED that service upon Handal be and the same hereby is QUASHED ; and it is further
ORDERED that Lucky's motion for sanctions against American Centennial Insurance Company and its counsel be and the same hereby is DENIED.
NICHOLAS H. POLITAN