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Fiscus v. Combus Finance AG

June 20, 2006


The opinion of the court was delivered by: Simandle, District Judge


This matter comes before the Court on a motion by defendant Rolf Schnellmann ("Schnellmann") for dismissal based on three alternative grounds. Schnellmann first moves for dismissal for lack of personal jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(2). Second, Schnellmann moves for dismissal based on a forum selection clause in an escrow agreement Schnellmann contends obligates the parties to litigate this matter in Switzerland under Swiss law. Finally, Schnellmann moves for dismissal under the doctrine of forum non conveniens. The plaintiff, Michael Fiscus ("Fiscus"), has opposed Schnellmann's motion on all three alternative grounds. For the reasons stated below, Schnellman's motions to dismiss for lack of personal jurisdiction, in favor of enforcement of the forum selection clause and under the doctrine of forum non conveniens are denied.


A. Facts

In early 1999, Fiscus, a New Jersey resident, was in possession of more than 2,000,000 shares of eVentures Group, Inc., a Delaware corporation, based in Dallas, Texas. The stock was not registered under United States securities laws and therefore its transfer was subject to certain restrictions. Fiscus began to seek a buyer willing to purchase his shares in eVentures subject to these restrictions. Mr. Fiscus, who occasionally served as an officer of eVentures, asked two co-workers, Steve Roebling (eVentures' Chief Financial Officer) and Peter Schnellmann (who assisted in the accounting office of eVentures), if they knew anyone who might be interested in purchasing part of his ownership interest. (Certification of Michael Fiscus ¶ 3, 5.) Peter Schnellmann notified Mr. Fiscus that his brother, Rolf Schnellmann might be interested in purchasing some shares of eVentures. (Id. ¶ 7.)*fn1

Fiscus, a U.S. citizen and resident of New Jersey, and Schnellmann, a citizen of the Swiss Confederation, met in New York City to discuss the possibility of a sale of Fiscus' stock. (Id. ¶ 9; Complaint ¶ 1, 3.) According to Fiscus, at this meeting, Schnellmann told him that Schnellmann managed billions of dollars in funds at a company called ComBus (allegedly a substantial European brokerage firm with clients in Europe, the United States and other parts of the world.) (Id.)

From late 1999 until May 2002, Fiscus negotiated the sale of a large quantity of his eVentures shares with Swiss citizens Schnellmann and Rolf Haenni ("Haenni") and Swiss corporations ComBus Finance AG ("ComBus") and Multiforum AG ("Multiforum"). (Fiscus Cert. ¶ 10.) Initially Fiscus was given the impression that Haenni and Multiforum would make the purchase. (Id. ¶ 12; Compl. ¶ 13.) Around March 2000, however, Schnellmann telephoned Fiscus to inform him that "there were problems" with Haenni and that Multi and Haenni would not be part of the deal. (Id.) After Multiforum and Haenni were excluded from the transaction, Schnellmann and Flurin von Planta (a Swiss attorney connected with the transaction), acting for ComBus, Global Research and themselves, advised Fiscus that a company named Global Research AG would purchase the shares of eVentures. (Id. ¶ 13.) According to Fiscus, Schnellmann told Fiscus that he was one of the principals of Global Research AG. (Id. ¶ 12.)

While negotiating the transaction, Schnellmann communicated with Fiscus regularly for a period of eighteen months (beginning in October of 1999) via telephone, email and facsimile regarding the potential sale. (Id. ¶¶ 9, 13.) The calls and electronic communications were either made or sent to Fiscus while Fiscus was almost exclusively located in New Jersey. (Id.) In addition, according to Fiscus, Fiscus spoke to Schnellmann at least every other day over a six month-period beginning in April of 2000. (Id. ¶ 17.) The telephone calls were generally made by Schnellmann to either Fiscus' home in Ocean City, New Jersey or his home in Haddonfield, New Jersey. (Id.) In particular, when "problems" arose with Haenni, Fiscus had daily conversations with Schnellmann "regarding the sale price of the stock, the issuance of letter opinions and the issuance of certificates." (Id. ¶ 18.) At the request of the Court, Fiscus submitted a Supplemental Certification documenting email messages, faxes, letters and other documents sent or received by Fiscus or his attorney (Stephen A. Dennis, Esq.) in connection with his dealings with Rolf Schnellmann. (Supplemental Certification of Michael Fiscus ¶¶ 2-3.) The Supplemental Certification shows twelve email or fax communications sent between March 2000 and May 2001 (with ten communications coming between March 2000 and June 2000) directly from Schnellmann to Fiscus.*fn2 (Fiscus Suppl. Cert. ¶¶ 1-5, 8-10, 12, and 15-17.)

Schnellmann's certification tells a different story with respect to the amount of contact between him and Fiscus. (Certification of Rolf Schnellmannn ¶ 4.) According to Schnellmann, after their meeting in New York, Schnellmann had "limited contact" with Fiscus. (Id.) In fact, Schnellmann states that he had "very little contact -- several phone discussions... - until a buyer was located." (Id.) The email and fax evidence, however, tells a different story of frequent, purposeful negotiations and communications with Fiscus in New Jersey.

On May 17, 2000, the parties agreed that Fiscus would sell 100,000 shares of eVenture stock for a purchase price of $1,000,000, (Fiscus Cert. ¶ 14), which was memorialized in a letter agreement between Fiscus and Global Research executed in New Jersey on May 17, 2000. (Id. ¶ 26.) The agreement provided that, in the event of a dispute, the law of the State of Delaware would apply. (Pl.'s Ex. A.) Also in May of 2000, von Planta emailed Fiscus' attorney in California, introducing himself as counsel for Schnellmann and ComBus, and suggested termination of an old escrow agreement with Multiforum and replacing it with an escrow agreement with Global Research. (Def.'s Brief at 2, Ex. B.) According to Schnellmann, the new escrow agreement (the "Escrow Agreement") was exchanged between Fiscus' attorney in California and von Planta and Schnellmann, and contained a forum selection clause whereby the parties agreed to accept the exclusive jurisdiction of the Swiss courts. (Schnellmann Cert. ¶ 6.)*fn3 Fiscus, however, denies having signed the Escrow Agreement or any contract containing this forum selection clause. (Fiscus ¶ 25.)

Following the execution of the May 17, 2000 agreement, Mr. Fiscus tendered the eVentures shares, but has never received any payment for the sale. (Fiscus Cert. ¶ 22.) In what Fiscus has titled "lulling" communications, Schnellmann contacted him by telephone, email, and mail, - each time with Fiscus receiving such communication in New Jersey and elsewhere in the United States - providing reasons for the delay in the purchase of Fiscus' eVenture shares and reassuring Fiscus that Schnellmann would complete the transaction shortly. (Id. ¶ 27.) The transaction was never completed.

B. Procedural History

On March 26, 2003, Fiscus filed a complaint (the "Complaint"), naming three Swiss nationals (including Schnellmann) and three Swiss corporations as defendants. (Compl. ¶¶ 2-7.) The Complaint contains allegations of securities fraud, common law fraud, breach of fiduciary duty, and negligence against all defendants. (Id. ¶¶ 26-45.) Fiscus alleges that Schnellmann is personally liable for corporate acts and as an officer of Global Research. (Id. ¶¶ 37-40, 43-45.) Schnellmann eventually filed this motion to dismiss the complaint for lack of personal jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(2), for enforcement of a forum selection clause in the Escrow Agreement between the parties, and based on the doctrine of forum non conveniens.*fn4 [Docket Item No. 21.] The Court heard oral argument on Schnellmann's motion on December 7, 2005. At the conclusion of oral argument, the Court requested that the parties make certain supplemental submissions including, from Fiscus, an Affidavit of Michael Fiscus documenting communication between Schnellmann and Fiscus (and attaching such documentation to the affidavit, [Docket Item No. 33.]) and from Schnellmann, a brief addressing the issue of national service of process and forum non conveniens regarding whether there is an adequate alternative forum. [Docket Item No. 36.]


In his motion, Schnellmann makes three major arguments for why dismissal is appropriate: (A) that this Court lacks personal jurisdiction and must dismiss the claim under Fed. R. Civ. P. 12(b)(2); (B) that the Court must dismiss Plaintiff's claim and enforce a forum selection clause in the Escrow Agreement mandating all disputes be brought in Switzerland; and (C) that the Court must decline jurisdiction based on the doctrine of forum non conveniens. The Court will address each of these arguments in the order outlined above.

A. Motion to Dismiss Under Fed. R. Civ. P. 12(b)(2) for Lack of Personal Jurisdiction

In the Third Circuit, once a defendant raises the defense that the court lacks personal jurisdiction, plaintiff bears the burden of establishing personal jurisdiction. See Mellon Bank (East) P.S.F.S. v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992). While the plaintiff bears the burden, he or she need only establish a prima facie case to establish the existence of personal jurisdiction over a defendant where the factual record contains only pleadings and affidavits. See LaRose v. Spondo Mfg., Inc., 712 F. Supp. 455, 458 (D.N.J. 1989). Under Fed. R. Civ. P. 4(e), a district court has personal jurisdiction over nonresident defendants "to the extent authorized under the law of the forum state in which the district court sits." Sunbelt Corp. V. Noble, Denton & Assoc., Inc., 5 F.3d 28, 31 (3d Cir. 1993). New Jersey's long-arm statute extends personal jurisdiction to the boundaries of the Due Process Clause Fourteenth Amendment. See N.J. Ct. R. 4:4-4. Thus the only analysis that this Court must perform is whether the assertion of personal jurisdiction over Schnellmann satisfied the Due Process Clause.

Although the district court can exercise personal jurisdiction over a nonresident defendant if the court possesses either general or specific jurisdiction, specific jurisdiction is the only type of jurisdiction implicated in this matter. Fiscus claims that this Court has specific jurisdiction over Schnellmann because Fiscus' claims are related to or arise out of Schnellmann's purposeful contacts with the forum state (New Jersey) and Fiscus is not claiming that Schnellmann is a foreign defendant who has engaged in "systematic and continuous" activities in New Jersey. See Dollar Sav. Bank v. First Sec. Bank of Utah, 746 F.2d 208, 211 (3d Cir. 1984). Specifically, Fiscus alleges that his claims arise out of Schnellmann's contacts within New Jersey - namely telephone calls, emails and faxes sent or made to New Jersey - thus making an analysis under the "minimum contacts" framework appropriate. The relevant consideration requires a two-part analysis. A plaintiff asserting specific jurisdiction over a foreign defendant must establish that the defendant (1) has made the necessary "minimum contacts" for the assertion of jurisdiction, and (2) those contacts must be deemed reasonable, such that the court's assertion of jurisdiction "would comport with 'fair play and substantial justice.'" Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 320 (1945)).

1. Minimum ...

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