"[Atlis], as NNS's parent, would be the direct beneficiary of the sale [of NNS] .... It was understood that Telesis was rendering service to both NNS and [Atlis] and that both NNS and [Atlis] would owe Telesis a commission if a sale [of NNS] occurred." Id.; see id., PP 9-10.
The submissions of the parties address the location of witnesses and documents relevant to this breach of contract action. Wittman states that, at trial, Telesis intends to introduce testimony of Wittman, who resides in New York City, and Roa, who resides in Franklin Lakes, New Jersey. Wittman Declaration, P 8. Wittman states Roa expects to testify about the circumstances surrounding the consummation of the Retention Agreement. Wittman also states Roa expects to testify about the services Telesis expected to render to NNS and the calculation of Telesis' compensation under the Retention Agreement. Id., P 9. Wittman expects to offer testimony concerning "the activities Telesis undertook pursuant to the Retention Agreement to carry out its obligations," including its efforts to locate a purchaser for NNS. Id., P 10. "All of the documents upon which Telesis would rely at trial are located at Telesis's offices in Franklin Lakes." Id., P 11.
Messenheimer states he was responsible for negotiating the Retention Agreement on behalf of NNS, subject to the approval of Cunningham. Messenheimer Affidavit, P 12. Messenheimer states he and Cunningham "are principal witnesses" in the instant matter and that they both reside and work in Montgomery County, Maryland. Id. Messenheimer also states that, as president of NNS, he is unable to spend a substantial amount of time away from his office in Maryland. Id., P 13. Messenheimer represents that all the business records relevant to the instant matter are located in Maryland, or at the offices of Mid-Atlantic or the parent company of Atlis, located in Virginia and Maryland, respectively. Id., P 14.
Messenheimer states neither NNS nor Atlis has any offices, employees or customers in New Jersey, nor have NNS or Atlis ever transacted business in New Jersey. Messenheimer Affidavit, PP 4-5. Neither NNS nor Atlis has a telephone listing in New Jersey, nor do either of them advertise in New Jersey. Id., P 6.
B. Procedural History
On 25 August 1995, Telesis filed a complaint (the "Complaint") against Defendants in the Superior Court. Atlis and NNS both joined in the Notice of Removal (the "Notice of Removal"), which was filed on 21 September 1995. Defendants allege that the court has diversity jurisdiction over this matter pursuant to 28 U.S.C. § 1332(a)(1) because the amount in controversy exceeds $ 50,000.00, exclusive of interest and costs, and the plaintiff and defendants are citizens of different states. Notice of Removal, PP 3-7. Defendants further allege that "NNS first received a copy of the Complaint without summons by mail at its principal office in Maryland" on 28 August 1995. Id., P 1. Defendants also allege "NNS was purportedly served in the action by certified mail delivery of a summons and Complaint" on 1 September 1995. Id., P 2. The Notice of Removal provides that "Atlis has not been served in this action." Id. The final paragraph of the Notice of Removal provides: "This Notice of Removal is being filed with the [Superior Court], by filing same ... within thirty (30) days after first receipt by any defendant of the Complaint in the action." Id., P 8.
A. Removal Pursuant to 28 U.S.C. § 1446
Under the general Federal removal statutes, an action brought in state court can be removed by a defendant to a Federal district court if that Federal court would have had original jurisdiction over the action. Section 1441(a).
A defendant seeking to remove a case must file "a notice of removal containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served." 28 U.S.C. § 1446(a) ("Section 1446(a)").
The removing party must show Federal subject matter jurisdiction exists and removal is proper. Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990), cert. denied, 498 U.S. 1085, 112 L. Ed. 2d 1046, 111 S. Ct. 959 (1991); Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987), cert. dism'd, 484 U.S. 1021, 108 S. Ct. 739, 98 L. Ed. 2d 756 (1988); Moore v. DeBiase, 766 F. Supp. 1311, 1315 n.5 (D.N.J. 1991); Mountain Ridge State Bank v. Investor Funding Corp., 763 F. Supp. 1282, 1288 (D.N.J. 1991).
An action removed to Federal court may be remanded to state court pursuant to Section 1447(c) on the basis of any defect in the removal procedure.
When confronted with a motion to remand, the removing party has the burden of establishing the propriety of removal. Boyer, 913 F.2d at 111; Steel Valley, 809 F.2d at 1010; Moore, 766 F. Supp. at 1315 n.5; Mountain Ridge, 763 F. Supp. at 1288. Moreover, "removal statutes 'are to be strictly construed against removal and all doubts resolved in favor of remand.'" Boyer, 913 F.2d at 111 (quoting Steel Valley, 809 F.2d at 1010); see Moore, 766 F. Supp. at 1315 n.5; Mountain Ridge, 763 F. Supp. at 1288.
Failure to file a notice of removal within the time period provided by the removal statutes is a sufficient basis for remand. See Foster v. Mutual Fire, Marine & Inland Ins. Co., 986 F.2d 48, 50-53 (3d Cir. 1993); Mountain Ridge, 763 F. Supp. at 1288.
28 U.S.C. § 1446(b) sets forth the time in which a removal petition must be filed:
The notice of removal of a civil action or proceeding shall be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim upon which such action or proceeding is based....
28 U.S.C. § 1446(b) (emphasis added). The burden of proof is on the removing party to show removal was timely. See Boyer, 913 F.2d at 111; Steel Valley, 809 F.2d at 1011.
"As a general matter, courts have construed [the removal statutes] as requiring, in cases involving multiple defendants, that all defendants join in the petition for removal." McManus v. Glassman's Wynnefield, Inc., 710 F. Supp. 1043, 1045 (E.D.Pa. 1989); see Gableman v. Peoria, Decatur & Evansville Ry. Co., 179 U.S. 335, 337, 45 L. Ed. 220, 21 S. Ct. 171 (1900); Chicago Rock Island & Pac. Ry. Co. v. Martin, 178 U.S. 245, 248, 44 L. Ed. 1055, 20 S. Ct. 854 (1900); Lewis v. Rego Co., 757 F.2d 66, 68 (3d Cir. 1985). The unanimity requirement advances "the congressional purpose of giving deference to a plaintiff's choice of a state forum and of resolving doubts against removal and in favor of remand." McManus, 710 F. Supp. at 1045 (citing Shamrock Oil & Gas Corp. v Sheets, 313 U.S. 100, 108, 85 L. Ed. 1214, 61 S. Ct. 868 (1941)).
Telesis argues this matter should be remanded for two reasons. First, Telesis argues that the Notice of Removal fails to allege facts establishing timely removal. Telesis argues that the Notice of Removal does not indicate when Atlis first received a copy of the Complaint, through service or otherwise. Remand Moving Brief at 5; see Foster, 986 F.2d at 53-54 (stating thirty-day period begins running when defendant receives a court document which provides "adequate notice of Federal jurisdiction," regardless of when formal service was made). Second, Telesis argues the Complaint should be remanded because Atlis failed to file a copy of the summons served upon it with the Notice of Removal. Remand Moving Brief at 8 (citing Section 1446(a)). An examination of the Notice of Removal indicates the Complaint was timely removed and it complied in all respects with the procedural requirements of Section 1446(a). On these facts, there is no basis to remand the Complaint.
B. Transfer Pursuant to 28 U.S.C. § 1406(a)
1. Venue Under 28 U.S.C. § 1391(a)
Pursuant to 28 U.S.C. § 1406(a) ("Section 1406(a)"), "the district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interests of justice, transfer such case to any district or division in which it could have been brought." Id. A district court may transfer a case under Section 1406(a) regardless of whether personal jurisdiction exists over the defendants. Goldlawr, Inc. v. Heiman, 369 U.S. 463, 465-66, 8 L. Ed. 2d 39, 82 S. Ct. 913 (1962); see also Carteret Sav. Bank. FA v. Shushan, 919 F.2d 225, 231 (3d Cir. 1990); United States v. Berkowitz, 328 F.2d 358, 361 (3d Cir.), cert. denied, 379 U.S. 821, 13 L. Ed. 2d 32, 85 S. Ct. 42 (1964); Database America, Inc. v. BellSouth Advertising & Publishing Corp., 825 F. Supp. 1195, 1206-07 (D.N.J. 1993).
Subject matter jurisdiction in the present case is premised on 28 U.S.C. § 1332(a)(1) because the amount in controversy exceeds $ 50,000.00 and the parties are of diverse citizenship. Telesis is incorporated in New Jersey and has its principal place of business in Franklin Lakes, New Jersey. 28 U.S.C. § 1332(c)(1); Wittman Declaration, P 8. Atlis is incorporated in Delaware and has its principal place of business in Rockville, Maryland. 28 U.S.C. § 1332(c)(1); Messenheimer Affidavit, P 5. NNS is incorporated in Delaware and has its principal place of business in Silver Spring, Maryland. 28 U.S.C. § 1332(c)(1); Messenheimer Affidavit, P 4.
When subject matter jurisdiction is predicated solely upon diversity of citizenship, venue is governed by 28 U.S.C. § 1391(a), which provides:
A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which the defendants are subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.
28 U.S.C. § 1391(a). Further, 28 U.S.C. § 1391(c) provides that "for purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced." 28 U.S.C. § 1391(c).
Defendants contend venue is improper in this district because a substantial part of the events giving rise to this dispute did not occur in New Jersey. Transfer Moving Brief at 5, 10-11. Defendants also contend venue is improper because neither general nor specific personal jurisdiction can be asserted over Defendants in this district. Id. at 6-10. In addition, Defendants assert that transfer is appropriate under the factors considered in connection with a motion pursuant to 28 U.S.C. § 1404(a). Id. at 12-17. Telesis counters by arguing specific jurisdiction exists over the Defendants in New Jersey. Plaintiff's Transfer Reply Brief at 3-10. Telesis also argues venue in this district is proper pursuant to Section 1441(a). Id. at 10; Transfer Opposition Brief at 7-9. Finally, Telesis argues the factors considered under 28 U.S.C. § 1404(a) do not warrant transfer of this matter. Id. at 4-6, 9-10. Under the personal jurisdiction argument set out by Telesis, venue would be proper in New Jersey under 28 U.S.C. §§ 1391(a)(1) and 1391(c) as well.
2. Venue Pursuant to 28 U.S.C. § 1391(c): Personal Jurisdiction Over Defendants in New Jersey
A Federal court has jurisdiction over a nonresident defendant to the extent authorized by the law of the state in which that court sits. Fed.R.Civ.P. 4(e); North Penn Gas Co. v. Corning Natural Gas Corp., 897 F.2d 687, 689 (3d Cir.), cert. denied, 498 U.S. 847, 112 L. Ed. 2d 101, 111 S. Ct. 133 (1990); Provident Nat'l Bank v. California Fed. Sav. & Loan Ass'n, 819 F.2d 434, 436 (3d Cir. 1987); Romero v. Argentinas, 834 F. Supp. 673, 678 (D.N.J. 1993); Database America, 825 F. Supp. at 1207; Apollo Technologies Corp. v. Centrosphere Indus. Corp., 805 F. Supp. 1157, 1181 (D.N.J. 1992); American Tel. & Tel. Co. v. MCI Communications Corp., 736 F. Supp. 1294, 1301 (D.N.J. 1990) (hereinafter "AT&T").
Federal courts sitting in New Jersey apply New Jersey law when interpreting the meaning of due process for the purpose of determining in personam jurisdiction. Provident Nat'l Bank, 819 F.2d at 436; Romero, 834 F. Supp. at 679; Database America, 825 F. Supp. at 1207; Apollo, 805 F. Supp. at 1181; AT&T, 736 F. Supp. at 1301; Eason v. Linden Avionics, Inc., 706 F. Supp. 311, 319 (D.N.J. 1989).
The New Jersey Long Arm Rule permits the assertion of in personam jurisdiction as far as is constitutionally permissible under the Fourteenth Amendment. N.J. Court Rule 4:4-4; Carteret Savings Bank, FA v. Shushan, 954 F.2d 141, 145 (3d Cir.), cert. denied, 506 U.S. 817, 121 L. Ed. 2d 29, 113 S. Ct. 61 (1992); DeJames v. Magnificence Carriers, Inc., 654 F.2d 280, 284 (3d Cir.), cert. denied, 454 U.S. 1085, 70 L. Ed. 2d 620, 102 S. Ct. 642 (1981); Charles Gendler & Co. v. Telecom Equip. Corp., 102 N.J. 460, 469, 508 A.2d 1127 (1986) (citing Avdel Corp. v. Mecure, 58 N.J. 264, 268, 277 A.2d 207 (1971)).
Pursuant to the Fourteenth Amendment, personal jurisdiction exists where the plaintiff demonstrates the defendant has sufficient "minimum contacts" with the forum state.
The first step in a minimum contacts analysis . . . is to determine whether the defendant has sufficient contacts with the forum state. The second step is to evaluate those contacts "in light of other factors to determine whether the assertion of personal jurisdiction would comport with 'fair play and substantial justice.'"
Charles Gendler, 102 N.J. at 472 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 85 L. Ed. 2d 528, 105 S. Ct. 2174 (1985)); see also Lebel v. Everglades Marina, Inc., 115 N.J. 317, 322, 558 A.2d 1252 (1989); Ruetgers-Nease Chem. Co. v. Firemen's Ins., 236 N.J. Super. 473, 477, 566 A.2d 227 (App.Div. 1989).
3. Minimum Contacts
Because Defendants have raised a jurisdictional defense in their answer
to the Complaint, Telesis bears the burden of demonstrating Defendants' contacts with New Jersey are sufficient to give the court in personam jurisdiction. Carteret, 954 F.2d at 146; North Penn Gas, 897 F.2d at 689; Gehling v. St. George's Sch. of Medicine, Ltd., 773 F.2d 539, 542 (3d Cir. 1985); Compagnie des Bauxites de Guinee v. L'Union Atlantique S.A. d' Assurances, 723 F.2d 357, 362 (3d Cir. 1983); Romero, 834 F. Supp. at 679; Database America, 825 F. Supp. at 1208; Apollo, 805 F. Supp. at 1182. "The plaintiff must sustain its burden of proof through 'sworn affidavits or other competent evidence.'" North Penn Gas, 897 F.2d at 689 (quoting Stranahan Gear Co. v. NL Indus., 800 F.2d 53, 58 (2d Cir. 1986)).
Telesis must demonstrate either "the particular cause of action sued upon arose from the defendant's activities within the forum state ('specific jurisdiction') or that [Defendants have] 'continuous and systematic' contacts with the forum state ('general jurisdiction')." Provident Nat'l Bank, 819 F.2d at 437 (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 416, 80 L. Ed. 2d 404, 104 S. Ct. 1868 (1984)); Romero, 834 F. Supp. at 679; Database America, 825 F. Supp. at 1208; Apollo, 805 F. Supp. at 1182; Giangola v. Walt Disney World Co., 753 F. Supp. 148, 154 (D.N.J. 1990). "When the cause of action arises out of the defendant's contacts with the forum state, it is more likely that the contacts will subject the defendant to the jurisdiction of the forum than if the cause arises from unrelated contacts." Charles Gendler, 102 N.J. at 471.
To establish either general or specific jurisdiction, minimum contacts with a state are shaped by purposeful conduct making it reasonable for the defendant to anticipate being haled into court there. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 62 L. Ed. 2d 490, 100 S. Ct. 559 (1980); Hanson v. Denckla, 357 U.S. 235, 253, 2 L. Ed. 2d 1283, 78 S. Ct. 1228, reh'g denied, 358 U.S. 858, 3 L. Ed. 2d 92, 79 S. Ct. 10 (1958); North Penn Gas, 897 F.2d at 690; Romero, 834 F. Supp. at 679; Database America, 825 F. Supp. at 1208; Apollo, 805 F. Supp. at 1182; Lebel, 115 N.J. at 323. These contacts must have a basis in "some act by which the defendant purposely avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws." Hanson, 357 U.S. at 253. The absence of a "physical presence" in the state is not determinative for jurisdictional purposes. Burnham v. Superior Court of California, 495 U.S. 604, 618, 109 L. Ed. 2d 631, 110 S. Ct. 2105 (1990) (citing International Shoe Co. v. Washington, 326 U.S. 310, 316, 90 L. Ed. 95, 66 S. Ct. 154 (1945)); Burger King, 471 U.S. at 476 (same); Charles Gendler, 102 N.J. at 469-70 (same).
In measuring the sufficiency of minimum contacts for in personam jurisdiction, a court must focus upon "'the relationship among the defendant, the forum, and the litigation.'" Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775, 79 L. Ed. 2d 790, 104 S. Ct. 1473 (1984) (quoting Shaffer v. Heitner, 433 U.S. 186, 204, 53 L. Ed. 2d 683, 97 S. Ct. 2569 (1977)); Romero, 834 F. Supp. at 679; Database America, 825 F. Supp. at 1208; Apollo, 805 F. Supp. at 1183; Giangola, 753 F. Supp. at 155; Lebel, 115 N.J. at 323. The "'purposeful availment' requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of 'random,' 'fortuitous,' or 'attenuated' contacts, or of the 'unilateral activity of another party or a third person.'" Burger King, 471 U.S. at 475 (citations omitted); Romero, 834 F. Supp. at 680; Database America, 825 F. Supp. at 1208; Apollo, 805 F. Supp. at 1183; Giangola, 753 F. Supp. at 155; AT&T, 736 F. Supp. 1294, 1303; Lebel, 115 N.J. at 323.
Burger King indicates when jurisdiction based upon "purposeful availment" is proper.
Jurisdiction is proper ... where the contacts proximately result from actions by the defendant himself that create a "substantial connection" with the forum state. Thus where the defendant "deliberately" has engaged in significant activities within a State, or has created "continuing obligations" between himself and residents of the forum, he manifestly has availed himself of the privilege of conducting business there, and because his activities are shielded by "the benefits and protections" of the forum's laws it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well.