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Miller v. Adler

United States District Court, D. New Jersey

June 29, 2018

JOEL MILLER, et al., Plaintiffs,
v.
ALISA ADLER, et al., Defendants.

          A. William Henkel, Esq., Jeffrey Morrow Pollock, Esq. Attorneys for Plaintiffs

          Edwin R. Matthews, Esq. [1] Attorney for Defendant Daniel Hirsch

          OPINION

          JEROME B. SIMANDLE U.S. DISTRICT JUDGE

         I. INTRODUCTION

         This action concerns a loan transaction that resulted in the loss of $150, 000 from Plaintiffs Joel Miller and Stephanie Segal Miller. The Millers' claims arise from misrepresentations made by Defendants Alisa Adler and Daniel Hirsch when the Millers contracted to loan the Defendants money for a real estate project. The case comes before the Court on a motion brought by Mr. Hirsch, a Georgia resident, to dismiss the Complaint for lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2). [Docket Item 4.] The primary issue in this case concerns whether Mr. Hirsch had sufficient contacts with New Jersey concerning the transaction in question so that specific jurisdiction exists consistent with due process. In addressing this issue, the Court will apply both the traditional “minimum contacts” test for specific jurisdiction as to all claims, which is enhanced by the “Calder effects test” (Calder v. Jones, 465 U.S. 783 (1984) and its progeny) applicable to the intentional torts alleged in the Complaint. For the following reasons, the Court denies Mr. Hirsch's motion and finds that he is subject to specific jurisdiction.

         II. BACKGROUND

         On March 25, 2015, Plaintiffs Joel Miller and Stephanie Segal Miller of New Jersey contracted with Defendants Alisa Adler and Daniel Hirsch, who allegedly “induced” the Millers to loan them $150, 000 for a Georgia real estate project.[2] [Docket Item 1, Complaint, at Preliminary Statement ¶ B.] Although only Ms. Adler met with the Millers in New Jersey when they signed the contract, the Millers aver that Ms. Adler informed them that she was also acting on Mr. Hirsch's behalf. [Docket Item 7, Reply Affidavit of Joel Miller, ¶ 3.] Mr. Hirsch also signed this contract a day later. [Compl. Ex. E.]

         Mr. Hirsch, a Georgia resident, asserts that he did not have actual contact with the Millers in New Jersey and that his only physical contact with the state occurred several years prior during a stopover at Newark Airport. [Compl. ¶ 10; Docket Item 4, Affidavit of Daniel Hirsch, (“Hirsch Affid.”) ¶ 4.] His alleged sole meeting with the Millers occurred when they visited Georgia to examine properties in which Ms. Adler suggested they invest. [Hirsch Affid. at ¶¶ 8-9.] However, emails that Mr. Hirsch sent to the Millers in March and May 2016 respectively indicate that he called the Millers in New Jersey about this subject transaction at least once and that he continued to involve them in the alleged development of the real estate project. [Compl. at ¶¶ 6-8; Pl. Br., Docket Item 7, Exs. A & B.]

         The Millers also wrote their check for the project's loan to Defendant Brunswick, an alleged shell corporation owned by both Ms. Adler and Mr. Hirsch that was incorporated the day after the contract was signed and has since been dissolved. [Docket Item 1 ¶¶ 12 & 25.] This check then cleared through the Millers' New Jersey bank. Id. at ¶¶ 22 & 25, Ex. F. However, Ms. Adler and Mr. Hirsch allegedly never used the loan money for the real estate project. Id. at ¶ 25. Upon this realization, the Millers demanded repayment as Mr. Hirsch and Ms. Adler promised. Id. at ¶¶ 3 & 25. However, only a cancelled check was returned to their New Jersey bank. [Docket Item 7, Reply Affidavit of Joel Miller, ¶ 4.] The Millers now allege that Mr. Hirsch and Ms. Adler retained the funds in order to spend the $150, 000 loan for their personal uses. [Compl. ¶ 26.]

         The Millers filed suit in the District of New Jersey against Ms. Adler, Mr. Hirsch, Brunswick, and Ms. Adler's corporation, ASG Real Estate Group, claiming: 1) breach of contract; 2) unjust enrichment; 3) fraud; and 4) civil conspiracy for fraudulent inducement. Id. at ¶¶ 30, 35, 39, 47. However, Mr. Hirsch has moved pursuant to Fed.R.Civ.P. 12(b)(2) to dismiss the suit because he claims that the Court does not have in personam jurisdiction over him. [Docket Item 4.][3]

         III. STANDARD OF REVIEW

         To defeat a motion to dismiss for lack of personal jurisdiction under Fed.R.Civ.P. 12(b)(2), “the plaintiff bears the burden of establishing with reasonable particularity sufficient contacts between the defendant and the forum state to support jurisdiction.” Provident Nat'l Bank v. Cal. Fed. Sav. & Loan Ass'n, 819 F.2d 434, 437 (3d Cir. 1987). The plaintiff “must sustain its burden of proof in establishing jurisdictional facts through sworn affidavits or other competent evidence.” Turner v. Boyle, Civil Action No. 12-7224, 2013 U.S. Dist. LEXIS 49977 at *17 n. 1 (D.N.J. Apr. 8, 2013) (citing Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61 (3d Cir. 1984)). Courts may rely on matters outside the pleadings to determine jurisdictional facts. Turner, 2013 LEXIS 49977 at *17 n. 1 (citing Time Share Vacation Club, 735 F.2d at 67 n.9).

         Where, as here, no evidentiary hearing was sought or held on the jurisdictional issue, “the plaintiff[s] need only establish a prima facie case of personal jurisdiction and the plaintiff[s] [are] entitled to have [their] allegations taken as true and all factual disputes drawn in [their] favor.” O'Connor v. Sandy Lane Hotel Co., Ltd., 496 F.3d 312, 316 (3d Cir. 2007) (quoting Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 97 (3d Cir. 2004)). A plaintiff “may meet this burden by establishing that the court has either ‘general' or ‘specific' jurisdiction.” Provident Nat'l Bank, 819 F.2d at 437.

         Here, general jurisdiction is not considered because specific jurisdiction ...


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