On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. 4522-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 14, 2007
Before Judges S.L. Reisner and Lyons.
Plaintiff, The Skiview Corporation, appeals from an order entered October 20, 2006 dismissing its complaint for lack of in personam jurisdiction over defendant, Ripple Resort Media, Inc. Because we agree with the thoughtful and detailed written opinion issued by Judge Joseph S. Conte, we affirm.
The facts and procedural history in this matter are as follows. Plaintiff is a Delaware corporation authorized to do business in New Jersey with a principal place of business in Ridgewood, New Jersey. Plaintiff's business is the marketing and advertising of products at ski resorts, on ski poles, billboards, and other locations at ski resorts.
Defendant is an Indiana corporation with its principal offices in Aspen, Colorado. Defendant designs and fabricates advertising placards to be placed on safety bars of the ski lift chairs which display maps showing trail locations and advertising materials. In the fall of 2004, plaintiff's president reached out to defendant's president in Colorado to propose that plaintiff act as exclusive sales agent for advertisements on defendant's map holders. The parties had no prior relationship before this event. Thereafter, over the course of several months, plaintiff and defendant negotiated the terms of the sales agency agreement by telephone, e-mail, written correspondence and fax. At no time during the negotiations did any representatives of defendant travel to New Jersey. However, during the negotiations plaintiff's president twice traveled to Colorado.
On May 31, 2005 a sales agency agreement between the parties was concluded. The contract was sent by defendant or its counsel to plaintiff in New Jersey for signing. The contract designates plaintiff as defendant's exclusive agent to sell promotional space on defendant's maps. The exclusive right, however, does not restrict defendant's right to sell promotional space on its own. Further, plaintiff is not permitted the right to sell promotional space to certain designated companies or to any companies that in the future purchase promotional space directly from defendant. The agreement contains an obligation on plaintiff's part to purchase a minimum number of "promotional spaces" each year in accordance with a schedule. The agreement contains a choice of law provision requiring Colorado law be used to construe the agreement. Also, the contract makes it clear that the parties are independent contractors and that neither party by virtue of the contract shall have the right power or authority to act or create any obligation, express or implied, on behalf of the other party.
Following the execution of the agreement, plaintiff generated revenues for defendant which were in excess of $250,000. Sometime after the contract was in effect, the president of defendant came to visit ski areas in New England.
At the conclusion of the trip, he stopped at the home of the president of plaintiff. The parties dispute the nature of the conversation during this visit, with plaintiff alleging that it was primarily business centered, while defendant maintains that the conversation was social in nature. Other than that one occasion, no representative of defendant was in New Jersey in connection with defendant's business.
The parties are in accord on a number of significant points. Defendant's products were not manufactured in New Jersey and defendant did not make any direct sales calls to New Jersey ski resorts. Defendant did not have any contacts with New Jersey businesses for the placement of advertising on its map holders. Defendant does not have any bank accounts, assets, office space, telephone listings, advertising or employees in New Jersey.
The parties' relationship began to deteriorate and on June 15, 2006, plaintiff filed a complaint against defendant in the Law Division alleging that defendant is in breach of its agreement with respect to payments that were to be made, that defendant failed to reveal to plaintiff certain resorts which had contracts with defendant and that defendant's termination of the agreement was wrongful. Prior to filing an answer defendant moved to dismiss the complaint for lack of jurisdiction. Oral argument was heard on the motion on October 20, 2006 at which time Judge Conte rendered an oral and written decision granting defendant's motion and entering an order dismissing the complaint. This appeal ensued.
On appeal plaintiff argues that New Jersey courts have specific jurisdiction over defendant in this case and that the trial court, therefore, committed error in dismissing ...