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Cacioppo v. Pool Mart Services

July 30, 2007

RICHARD K. CACIOPPO, PLAINTIFF-APPELLANT,
v.
POOL MART SERVICES, INC. D/B/A POOL MART,*FN1 RICHARD A. SHIRE, MICHELLE SHIRE, AND BRIAN RIFKIN D/B/A KENOBI SOLUTIONS, DEFENDANTS-RESPONDENTS, AND AQUABOTICS, INC.,*FN2 AND AQUABOTICS, A GENERAL PARTNERSHIP,*FN3 DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-6730-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 18, 2007

Before Judges Lefelt, Parrillo and Sapp-Peterson.

Plaintiff Richard K. Cacioppo appeals from the December 2, 2005 order dismissing his sixteen-count complaint filed against defendants Richard A. Shire and Michelle Shire (Shires) on jurisdictional grounds and the December 16, 2005 order dismissing defendant Brian Rifkin d/b/a Kenobi Solutions (Rifkin) for failure to state a claim upon which relief may be granted. He also appeals the January 20, 2006 order denying his motion for reconsideration of both dismissals. We reverse the dismissal of the complaint against the Shires and remand for further proceedings. We affirm the dismissal of the claims of negligence, negligent and intentional infliction of emotional distress asserted against Rifkin, but reverse the dismissal of plaintiff's negligent misrepresentation and fraud claims.

The complaint arises out of a failed business relationship initially created between the Shires*fn4 and plaintiff. From that relationship emerged the formation of Aquabotics, Inc., a wholesale and retail provider of pool cleaning equipment. The business relationship was formed in 2000 when plaintiff and the Shires engaged in discussions that plaintiff contends created an agreement to form Aquabotics, a partnership, which would eventually lead to incorporation. Plaintiff claims some of these discussions occurred in New Jersey. The only written records related to the parties' negotiations are e-mails memorializing some of the content of the conversations. There is also a partnership buyout agreement signed by the parties on August 5, 2004.

Aquabotics was incorporated as a Delaware corporation on February 17, 2000. It was also authorized to do business in New York as a foreign corporation under that name and under Pool Vac Superstore.Com., with its principal location listed as 127-17 Smithtown Boulevard, Nesconset, New York. The New York State Division of Corporations' records list plaintiff as the individual authorized to accept mail on behalf of the corporation in Manhassett, New York.

Rifkin was later retained to create the Aquabotics commercial websites, as the company was to operate exclusively through the Internet. Rifkin's business, Kenobi Solutions, is registered to do business in New Jersey, and its administrative, billing, and technical contacts are all located in Manalapan, New Jersey.

At some point, the relationship between the Shires and plaintiff became strained. On August 5, 2004, plaintiff filed a sixteen-count complaint which included requests for (1) declaratory relief, the issuance of a temporary injunction, and permanent injunctive relief; (2) dissolution of the partnership agreement that purportedly created Aquabotics; (3) dissolution of the Aquabotics Corporation; (4) partition of the partnership; and claims of (5) negligence; (6) slander per se, slander and libel; (7) negligent or intentional infliction of emotional distress; (8) breach of contract (Agreement 1); (9) breach of contract (Agreement 2); (10) rescission of contract; (11) fraudulent or negligent misrepresentation; (12) breach of fiduciary duty; (13) breach of covenant; (14) trespass to property and conversion; (15) negligence per se; and (16) forcible detainer/unlawful eviction.

On November 4, 2005, the Shires moved for dismissal of the complaint on the basis of a lack of personal jurisdiction. Rifkin also moved to dismiss the complaint for failure to state a claim upon which relief may be granted. Both motions were returnable on the same date and all parties expected oral argument. However, when plaintiff and the Shires' attorneys appeared, they were advised that the matter had been decided on the papers, although Rifkin's attorney did participate in oral argument. The court granted both motions. Thereafter, the court denied plaintiff's motions for reconsideration. The motion judge did not place reasons on the record during the original motion or the reconsideration motion, nor was there a subsequent written statement of reasons attached to the orders.

On November 17, 2006, the court conducted a hearing to reconstruct the record. The motion judge summarized his recollection of the events and the parties' counsel thereafter each supplemented the record. The court stated that the Shires' motion to dismiss was granted because "while the plaintiff did contest the allegations as to minimal contacts, in fact, there [was] no supporting documentation for same and, based on what was before the Court, it appeared that the defendant's position was, in fact, correct." As for Rifkin's motion to dismiss, the court found that "since it appeared that even from the plaintiff's complaint and submissions, he had no liability in this matter," it was properly granted. This appeal followed.

I.

"A state court's assertion of personal jurisdiction over a defendant must comport with the due-process requirement of the fourteenth amendment. Rule 4:4-4, this state's equivalent of a long-arm statute, permits service of process on non-resident defendants consistent with due process of law." Charles Gendler & Co., Inc. v. Telecom Equip. Corp., 102 N.J. 460, 469 (1986) (internal quotations omitted). The rule has been construed as extending personal jurisdiction to the outer limits, as permitted by due process. Avdel Corp. v. Mecure, 58 N.J. 264, 268 (1971).

There are two types of personal jurisdiction, specific and general. Accura Zeisel Mach. Corp. v. Timco, Inc., 305 N.J. Super. 559, 565 (App. Div. 1997). Specific jurisdiction exists where a defendant's activities are purposely directed to the forum and the cause of action results from the alleged injuries that arise out of, or relate to, those activities. Citibank, N.A. v. Estate of Simpson, 290 N.J. Super. 519, 527 (App. Div. 1996). A ...


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