United States District Court, D. New Jersey
REPORT AND RECOMMENDATION
DUNN WETTRE, UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on defendant's motion to
dismiss for lack of personal jurisdiction and failure to
state a claim upon which relief can be granted. ECF No. 47.
Plaintiffs have not opposed the motion. The Honorable Susan
Davis Wigenton, U.S.D.J., referred this motion to the
undersigned for a Report and Recommendation. Having
considered the written submissions, and for good cause shown,
the Court recommends that defendant's motion to dismiss
for lack of personal jurisdiction be
a legal malpractice action in which plaintiffs Demodulation,
Inc. ("Demodulation") and its President, James
O'Keefe, allege defendant Friedman & Friedman, Ltd.
("Friedman") failed to properly represent
Demodulation in a prior patent infringement action.
Plaintiffs commenced this action in the Superior Court of New
Jersey, Bergen County, Law Division in March 2016.
See ECF No. 1-1. Pursuant to 28 U.S.C. §1332,
defendant removed the action to this Court on grounds of
diversity of citizenship jurisdiction in August 2016.
See ECF No. 1. Plaintiff James O'Keefe is a
citizen of New Jersey and plaintiff Demodulation is a
Delaware corporation with its principal place of business in
New Jersey. Id. ¶¶ 1-2. Defendant Friedman
is an Illinois corporation with its principal place of
business in Chicago, Illinois. Id. ¶ 16. The
amount in controversy exceeds the $75, 000 jurisdictional
threshold. See Id. ¶ 11.
after defendant removed the action to this Court,
then-counsel for plaintiffs filed a motion to withdraw as
counsel, ECF No. 4, and defendant filed a motion to dismiss
for lack of personal jurisdiction and for failure to state a
claim, ECF No. 5. The Court granted the motion to withdraw,
and defendant's motion to dismiss was administratively
terminated to permit plaintiffs time to secure new counsel.
ECF Nos. 12, 13. The Court held an in-person settlement
conference with the parties on September 29, 2017, after
which plaintiffs filed a motion to amend the Complaint. ECF
No. 38. The Court denied the motion on March 29, 2018. ECF
Nos. 45, 46. Defendant refiled its motion to dismiss on April
26, 2018, which plaintiffs have not opposed. ECF No. 47.
Complaint alleges that in September 2015, plaintiffs sought
the services of defendant Friedman to represent plaintiff
Demodulation in a patent infringement suit filed in the Court
of Federal Claims, located in Washington D.C. ECF No. 1-1
¶¶ 5-6. The Complaint contends that defendant
breached the duty of care owed to Demodulation by its
negligent representation in the underlying suit, which
necessitated plaintiffs' termination of the parties'
attorney-client relationship in November 2015. Id.
¶ 9-10. By then, defendant had billed plaintiffs
approximately $270, 000 in legal fees, which plaintiffs did
not pay, and for which defendant obtained a judgment against
plaintiffs in June 2016. See ECF No. 47-1, Ex. E.
The Complaint asserts a claim against defendant for legal
malpractice, seeks a declaratory judgment that plaintiffs are
not responsible to pay for defendant's legal fees, and
seeks the return of plaintiffs' files.
moves to dismiss the Complaint on the grounds that this Court
lacks personal jurisdiction over it and for plaintiffs'
failure to state a claim upon which relief can be granted.
For the reasons set forth below, the undersigned recommends
the District Court find that plaintiffs have not met their
burden to show personal jurisdiction exists over defendant
and to grant defendant's motion on that basis.
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,
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 the
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 this 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 a plaintiffs allegations are
challenged by affidavits or other evidence, the
"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)). A plaintiff must ultimately 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.
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
Cal, 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,571 U.S. 117, 127 (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 ...