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Bergwall Law Firm, P.C v. Bank of America

May 3, 2011

BERGWALL LAW FIRM, P.C., PLAINTIFF,
v.
BANK OF AMERICA, N.A., GLOBAL STAINLESS SUPPLY, INC., AND SUMITOMO CORPORATION OF AMERICA, DEFENDANTS.



The opinion of the court was delivered by: Hon. Dennis M. Cavanaugh

NOT FOR PUBLICATION

OPINION

DENNIS M. CAVANAUGH, U.S.D.J.:

This matter comes before the Court upon the motions of Defendants Global Stainless Supply, Inc. ("GSS") and Sumitomo Corporation of America ("Sumitomo") to dismiss the Complaint on the basis of lack of personal jurisdiction and failure to state a claim. No oral argument was heard pursuant to Federal Rule of Civil Procedure 78. For the reasons stated below, Defendants' motions are granted.

I. BACKGROUND*fn1 Sometime in February 2010, an unidentified person obtained the bank account information of GSS, a distributor of pipes headquartered in Houston, Texas and began creating counterfeit checks purporting to be written against GSS's Bank of America ("BOA") account. Defs.' Br. 2-3.

According to GSS, "the payees on those checks were invariably instructed by the malefactor to deposit them and forward a portion of the proceeds abroad." Defs.' Br. 3. Upon learning of the fraudulent activity, GSS contacted BOA to notify it and to request closure of the account. GSS reported the counterfeit check scam to the Houston Police Department on March 17, 2010. Id.

Plaintiff, a small law firm, became a target of the GSS check scam. On March 29, 2010, Nagano Japan Radio Company Ltd. ("Nagano"), a Japanese company, retained Plaintiff to pursue the balance of a debt allegedly due and owing to Nagano in the amount of $654,000.00. Compl. ¶ 8. Plaintiff agreed to represent Nagano on a contingency basis of 15%. Id. Plaintiff does not describe any actions it took to collect the debt on Nagano's behalf. Instead, sixteen days after being retained, Plaintiff received a check in the amount of $123,500.00 purported to be drawn against a BOA account subscribed to GSS. Plaintiff deposited the check into its IOLTA account at 10:59 a.m. on April 14, 2010. BOA provisionally credited the face amount of the check to the IOLTA account on that same date. Compl. ¶ 9. The following day, at 8:34 a.m., Plaintiff instructed BOA to execute, and BOA did execute a wire transfer in the amount of $104,975.00 from the IOLTA account to an HSBC account in Malaysia in the name of Abidam Enterprise. Compl. ¶ 10. This transfer was made per Nagano's instructions and represented the net funds, minus Plaintiff's fee. Id.

Prior to midnight on April 15, 2010, BOA determined that the original check from GSS was counterfeit and could not be paid. Compl. ¶ 11. Accordingly, BOA charged back the $123,500 to Plaintiff's IOLTA account, which resulted in a negative balance on the account on April 19, 2010 of -$94,536.42. Compl. ¶ 13. Plaintiff contacted BOA to attempt a recall of the April 15 wire transfer. BOA was unable to retrieve any of the transferred funds.

As a result of the overdraft, BOA closed Plaintiff's IOLTA account, with the negative balance remaining, making Plaintiff unable to access the funds of other clients who had deposited moneys in trust with Plaintiff.

II.STANDARDOFREVIEW

A. Personal Jurisdiction

A district court may exercise jurisdiction over a nonresident defendant to the extent permitted by the law of the state where the district court sits. See Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 96 (3d Cir. 2004) ("A federal court sitting in New Jersey has jurisdiction over parties to the extent provided under New Jersey state law."). "New Jersey's long arm statute confers jurisdiction over nonresidents to the extent allowed under the United States Constitution." Horton v. Martin, 133 Fed. Appx. 859, 860 (3d Cir. June 15, 2005). The Fourteenth Amendment of the United States Constitution "limits the reach of long-arm statutes so that a court may not assert personal jurisdiction over a nonresident defendant who does not have certain minimum contacts with the forum such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" Provident Nat'l Bank v. Cal. Fed. Sav. & Loan Ass'n, 819 F.2d 434, 436-37 (3d Cir. 1987) (citation and internal quotations omitted).

For a court to exercise jurisdiction over a defendant, the defendant must have specific or general contacts with the forum. See Horton, 133 Fed. Appx. at 860. General jurisdiction exists when the defendant has "continuous and systematic conduct in the forum that is unrelated to the subject matter of the lawsuit." Associated Bus. Tel. Sys. Corp. v. Danihels, 829 F. Supp. 707, 711 (D.N.J. 1993). Specific jurisdiction exists "when the particular cause of action at issue arose out of the defendant's contacts with the forum." Id. "Once a defendant raises the defense of lack of personal jurisdiction, the plaintiff bears the burden to prove, by a preponderance of the evidence, facts sufficient to establish personal jurisdiction." Horton, 133 Fed. Appx. at 860. While "[a] court must accept as true the allegations in the complaint and resolve disputed issues of fact in favor of the plaintiff. . . . the plaintiff cannot rely on the pleadings alone but must provide ...


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