United States District Court, D. New Jersey
REPORT AND RECOMMENDATION
DUNN WETTRE. UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on defendants' motion to
dismiss for lack of personal jurisdiction pursuant to Federal
Rule of Civil Procedure 12(b)(2), or, in the alternative, to
dismiss Count III pursuant to Federal Rules of Civil
Procedure 9(b) and 12(b)(6). ECF No. 3. Plaintiff opposes the
motion. ECF No. 6. The Honorable Susan Davis Wigenton,
U.S.D.J., referred this motion to the undersigned for a
Report and Recommendation. This motion is decided without
oral argument pursuant to Federal Rule of Civil Procedure 78.
Having considered the parties' written submissions and
for good cause shown, the Court recommends that
defendants' motion to dismiss for lack of personal
jurisdiction be DENIED and that defendants' motion to
dismiss Count III be GRANTED.
a breach of contract dispute concerning defendants'
alleged failure to satisfy an outstanding balance of $159,
309.17 for plaintiffs fulfillment of purchase orders and
shipment of electronic goods pursuant to an agreement between
the parties. Plaintiff commenced this action in the Superior
Court of New Jersey, Law Division, Bergen County in October
2017. Defendants timely removed the action to this Court on
the grounds of diversity of citizenship jurisdiction pursuant
to 28 U.S.C. § 1332. Plaintiff, a wholesale electronics
distributor, is a New Jersey corporation with its principal
place of business in New Jersey. Complaint ¶ 1, ECF No.
1-1. Defendant Texas TR, LLC ("TTR"), a wholesale
distributor of electronic photograph and video supplies, is a
Texas corporation with its principal place of business in
Texas. Id. U 2. Defendant Schmaya Marinovsky is the
owner of TTR, and is a resident of Texas. ECF No. 1 ¶ 5.
The amount in controversy exceeds the $75, 000 jurisdictional
threshold. Id. ¶ 4.
alleges that in July 2016, defendants solicited one of its
representatives to work with TTR to sell electronic products
through Amazon. Id. ¶¶ 8-9. The Complaint
alleges that defendants would receive orders through Amazon,
send a purchase order for the products to plaintiff in New
Jersey, and plaintiff would ship the items directly to
Amazon. Id. ¶¶ 10-12. Pursuant to the
contract, defendants were to pay plaintiff for the items.
Id. ¶ 12. The Complaint alleges that the
parties entered into an agreement and followed this process
several times. Id. ¶14. Eventually, defendants
allegedly failed to make timely payments, and ultimately
ceased making payments entirely in March 2017. Id.
¶¶ 14-15. Defendants allegedly have an outstanding
balance due to plaintiff of $159, 309.17. Id. f
Complaint asserts claims for breach of contract, breach of
the implied covenant of good faith and fair dealing, fraud,
unjust enrichment, and piercing the corporate veil.
See ECF No. 1. Defendants filed the instant motion
to dismiss on December 13, 2017. ECF No. 3.
move to dismiss on the grounds that this Court lacks personal
jurisdiction over them, or in the alternative to dismiss
Count III of the Complaint for failure to state a claim. For
the reasons set forth below, the undersigned recommends that
the District Court find plaintiff has met its burden to show
personal jurisdiction exists over defendants and that Count
III should be dismissed.
defendant challenges a Court's exercise of personal
jurisdiction, the plaintiff bears the burden to prove that
jurisdiction is proper. Metcalfe v. Renaissance Marine,
Inc., 566 F.3d 324, 330-31 (3d Cir. 2009). Where the
district court does not hold an evidentiary hearing, a
plaintiff must establish only a prima facie case of
personal jurisdiction. Miller Yacht Sales, Inc. v.
Smith, 384 F.3d 93, 97 (3d Cir. 2004). Under a prima
facie standard, "the plaintiffs allegations are
presumed true and all factual disputes are resolved in the
plaintiffs favor." LaSala v. Marfin Popular Bank
Pub. Co.. 410 Fed.Appx. 474, 476 (3d Cir. 2011). A
plaintiff meets its burden by "establishing with
reasonable particularity sufficient contacts between the
defendant and the forum state." Display Works, LLC
v. Bartley, 182 F.Supp.3d 166, 172 (D.N.J. 2016)
(quoting Mellon Bank PSFS, Nat'l Ass'n
v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992)). Once the
motion is made, however, and plaintiffs allegations are
challenged by affidavits or other evidence, "plaintiff
must respond with actual proofs, not mere allegations."
Patterson by Patterson v. FBI, 893 F.2d 595, 604 (3d
Cir. 1990) (citation omitted); see also Metcalfe,
566 F.3d at 330 ("'[O]nce a defendant has raised a
jurisdictional defense, ' the plaintiff must 'prov[e]
by affidavits or other competent evidence that jurisdiction
is proper.'") (quoting Dayhoff Inc. v. H.J.
Heinz Co., 86 F.3d 1287, 1302 (3d Cir. 1996)). Plaintiff
ultimately must prove the existence of jurisdiction by a
preponderance of the evidence, although such a showing is
unnecessary at the preliminary stages of litigation.
LaSala, 410 Fed.Appx. at 476; Mellon Bank (E.)
PSFS, Nat'l Ass 'n v. Farino, 960 F.2d 1217,
1223 (3d Cir. 1992); Display Works, LLC v. Bartley,
182 F.Supp.3d 166, 172 (D.N.J. 2016).
Court exercises jurisdiction to the extent permitted by New
Jersey law. See Miller Yacht Sales, 384 F.3d at 96
(citing Fed.R.Civ.P. 4(e)). New Jersey's long-arm statute
permits the exercise of jurisdiction over non-residents
"to the uttermost limits permitted by the United States
Constitution." Charles Gendler Co. v. Telecom Equity
Corp., 102 N.J. 460, 469 (1986) (quoting Avdel Corp.
v. Mecure, 58 N.J. 264, 268 (1971)). Therefore, "we
ask whether, under the Due Process Clause, the defendant has
certain minimum contacts with [New Jersey] such that the
maintenance of the suit does not offend traditional notions
of fair play and substantial justice." O'Connor
v. Sandy Lane Hotel Co., 496 F.3d 312, 316 (3d Cir.
2007) (internal quotation marks omitted).
jurisdiction may be based on either general or specific
jurisdiction. Bristol-Myers Squibb Co. v. Super. Ct. of
Cat, 137 S.Ct. 1773, 1780 (2017). "A court with
general jurisdiction may hear any claim against that
defendant, " id, and the defendant's
"contacts need not relate to the subject matter of the
litigation." Helicopteros Nacionales de Colombia,
S.A. v. Hall, 466 U.S. 408, 415, n.9 (1984). General
jurisdiction over a defendant exists in the forum of an
individual's domicile and the forum "in which [a]
corporation is fairly regarded as at home." Goodyear
Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915,
personal jurisdiction, on the other hand, exists where the
claims "aris[e] out of or relate to the
defendant's contacts with the forum." Daimler AG
v. Bauman,134 S.Ct. 746, 754 (2014) (quoting
Helicopteros, 466 U.S. at 414, n.8). The Third
Circuit has laid out a three-part test to determine whether
specific jurisdiction exists: (1) the defendant must have
"purposefully directed [its] activities at the
forum"; (2) the litigation must "arise out of or
relate to at least one of those activities"; and (3) if
the first two requirements are met, the exercise ...