Remick v. Manfredy ( 2001 )

Opinions of the United
2001 Decisions States Court of Appeals
for the Third Circuit
1-25-2001
Remick v. Manfredy
Precedential or Non-Precedential:
Docket 99-1422
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Filed January 25, 2001
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 99-1422
LLOYD Z. REMICK, ESQ.,
Appellant
v.
ANGEL MANFREDY;
JOHN MANFREDY;
JEFFREY H. BROWN, ESQ.;
KATHLEEN H. KLAUS, ESQ.;
D'ANCONA & PFLAUM
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 99-cv-00025)
District Judge: Hon. J. Curtis Joyner
Argued September 13, 2000
Before: SLOVITER, SCIRICA and ALITO, Cir cuit Judges
(Filed: January 25, 2001)
Patrick C. Campbell, Jr. (Argued)
Richard G. Phillips Associates, P.C.
Philadelphia, PA 19103-7596
Attorney for Appellant
Louis C. Ricciardi
Rodriguez & Richards
Philadelphia, PA 19103
Lisa M. Sommer
Steven L. Baron (Argued)
D'Ancona & Pflaum
Chicago, IL 60601
Attorneys for Appellees
OPINION OF THE COURT
SLOVITER, Circuit Judge.
Plaintiff Lloyd Remick, an attorney specializing in sports
and entertainment law licensed to practice in the
Commonwealth of Pennsylvania, filed suit in a
Pennsylvania state court against Angel Manfr edy
("Manfredy"), John Manfredy, Jef frey Brown and Kathleen
Klaus, as well as against the law firm D'Ancona & Pflaum
with which Brown and Klaus are associated. The complaint
alleges, inter alia, breach of contract, tortious interference
with contract, misappropriation of image and likeness, civil
conspiracy, and defamation.1 The defendants removed the
action to the United States District Court for the Eastern
District of Pennsylvania.
The District Court dismissed the complaint against the
individual defendants under Rule 12(b)(2) of the Federal
Rules of Civil Procedure for lack of personal jurisdiction
and against the law firm under Rule 12(b)(6) for failure to
state a claim. See Remick v. Manfredy, 52 F. Supp. 2d 452
(E.D. Pa. 1999). This appeal raises a number of issues
which we will consider seriatim.
_________________________________________________________________
1. Although Remick refers briefly to the dismissal of the remaining
counts of the complaint, he provides no legal argument to support his
contention that the District Court erred and we have found none.
2
I.
FACTS
According to the complaint, which we accept as true for
purposes of a motion to dismiss, in late 1996 Remick and
his associate, Bernard Resnick, wer e approached by
Manfredy, a lightweight professional boxer , and his
advisors, John Manfredy, his brother and agent, and
Jeffrey Brown, an attorney with D'Ancona & Pflaum, about
representing Angel Manfredy in negotiations, particularly
with fight promoter Cedric Kushner Pr oductions, Ltd.
("Kushner"). Eventually, Remick and Manfr edy entered into
a contract under which Remick would act as Manfr edy's
special counsel in the procurement and negotiation of high
profile and lucrative fights, promotions and endorsements.
Manfredy signed a fee agreement that entitled Remick to a
specified percentage of all purses or other compensation
which Manfredy received for boxing or pr omotions during
the term of the agreement and of any endorsement contract
procured by Remick on Manfredy's behalf.2 Manfredy and
Brown had the right to review and appr ove or disapprove
all contracts negotiated by Remick. On February 7, 1997,
Remick was successful in negotiating for Manfr edy an
Exclusive Promotional Agreement between Kushner and
Manfredy.
According to Remick, Manfredy quickly benefitted from
his representation, and in the year following Remick's
retention Remick had secured Manfr edy purses up to
$375,000. In early 1998, there was a disagr eement between
Remick and Manfredy over negotiations for an HBO-
televised fight between Manfredy and Azumah Nelson, and
ultimately the proposed Nelson fight fell thr ough. On March
2, 1998, Manfredy sent Remick a letter ter minating his
representation, asserting that Remick had failed to
_________________________________________________________________
2. The agreement provided Remick was to receive 5% of up to $35,000 of
Manfredy's purse for the first bout ther eafter, 8% of the net amount of
all purses or other compensation Manfredy r eceived for boxing or
promotions thereafter during the ter m of the agreement, and 15% of the
gross amount Manfredy received fr om any endorsements Remick
procured for the boxer.
3
adequately represent Manfredy's inter ests by not delivering
on certain alleged promises and faltering as a negotiator.
The letter concludes with the following paragraphs:
When we began working together you led me to
believe that you had the ability and connections to
bring in endorsements and negotiate effectively with
[Kushner]. This hasn't happened. During the more
than thirteen months you represented me you never
delivered a single endorsement opportunity.
As a result of your failures to adequately represent
my interests, I have decided to terminate your
engagement. Please forward all of my files r elating to
my representation to my attorney, Jeffrey Brown, at
D'Ancona & Pflaum.
App. at 119.
Thereafter, Manfredy's team negotiated with Kushner for
a bout against Isander Lacen to take place on June 16,
1998, with a $75,000 purse. Remick claimed that he was
entitled to an 8% share of Manfredy's purse because he
negotiated the overarching Exclusive Pr omotional
Agreement between Manfredy and Kushner . Remick asked
Kushner to place 8% of Manfredy's purse into escrow until
his dispute with Manfredy could be resolved, but Kushner
did not do so.
On September 2, 1998, Remick wrote to Manfr edy
rejecting the termination of his r epresentation, demanding
8% of Manfredy's purse from the Lacenfight, and stating
that he would "be left with no recourse than to pursue legal
remedies" unless Manfredy withdr ew his March 2, 1998
termination letter. App. at 59-60. On September 11, 1998,
defendant Kathleen Klaus, another attorney with D'Ancona
& Pflaum, sent a letter to Remick stating:
We are writing in response to your letter of
September 2, 1998 threatening to take legal action
against our client Angel Manfredy.
As you know, Mr. Manfredy ter minated his
relationship with you by letter on March 2, 1998. His
letter made it very clear that, in light of your failure to
perform your obligations to him, he was left with no
4
alternative other than to sever his association with
you. Your September 2, 1998 letter indicates that you
received Mr. Manfredy's letter six months ago and,
because you are an attorney, we assume you
appreciated its import.
We are not aware of any legal principle which allows
you to "reject" the termination of an attorney client
relationship or any authority which requir es one party
to the contract to perform in the face of the other
party's breach. If you insist on attempting to extort
money from Cedric Kushner Promotions, Ltd. or any
other entity with which Mr. Manfredy is engaged on the
basis of your alleged contract with Mr. Manfr edy, we
will not hesitate to pursue our legal remedies,
including a suit for damages arising from your failure
to adequately represent Mr. Manfr edy.
App. at 121.
Remick's complaint in this case arose out of both the
failed relationship with Manfredy and the Klaus letter.
Defendants filed a motion to dismiss under both Rule
12(b)(2) and Rule 12(b)(6) and an Alternative Motion to
Transfer under Rule 17. The District Court granted the
defendants' motion to dismiss pursuant to Rule 12(b)(2),
concluding that there was no personal jurisdiction over the
individual defendants. Focusing on the merits of the claims
against the law firm, the District Court considered
defendant's Rule 12(b)(6) motion. It dismissed with
prejudice Remick's defamation claim against D'Ancona &
Pflaum, and dismissed (without prejudice) his claims for
interference with business and contractual relationships
(variously called, inter alia, inter ference with contracts) and
civil conspiracy. Remick filed a timely notice of appeal.
II.
APPELLATE JURISDICTION
Although the order of the District Court dated April 22,
1999, states that the complaint is dismissed without
prejudice, in fact the Memorandum and Or der dated the
5
same day and filed contemporaneously holds that the
complaint against the individuals is dismissed for lack of
personal jurisdiction, that there is general personal
jurisdiction over the law firm, and that one count of the
complaint against the law firm, that for defamation, is
dismissed with prejudice but that two counts against that
defendant, the claims for tortious interfer ence with contract
and for civil conspiracy, are dismissed with leave given to
Remick to replead. He chose not to do so, instead filing the
notice of appeal.
Because of the procedural posture of the case, we asked
Remick to comment at oral argument on our jurisdiction to
hear this matter. In Borelli v. City of Reading, 532 F.2d 950,
951-52 (3d Cir. 1976) (per curiam), this court, noting the
general rule that an order dismissing a complaint without
prejudice is not appealable, stated that "[o]nly if the
plaintiff cannot amend or declares his intention to stand on
his complaint does the order become final and appealable."
Although generally a plaintiff who decides to stand on the
complaint does so in the district court, see, e.g., In re
Advanta Corp. Sec. Litig., 180 F.3d 525, 529-30 (3d Cir.
1999); In re Westinghouse Sec. Litig., 90 F.3d 696, 702 (3d
Cir. 1996), we have made clear that such a course, while
preferable, is not always necessary. Recently, in Semerenko
v. Cendant Corp., 223 F.3d 165, 172-73 (3d Cir. 2000), the
plaintiffs/appellants declared their intention to stand on
their complaint in this court, and we thereafter treated the
district court's order dismissing the complaint, albeit
without prejudice, as a final order dismissing with
prejudice and therefore appealable.
During the argument in this case, Remick's attorney
stated unequivocally that Remick wished to stand on his
complaint. Accordingly, we conclude that we have
jurisdiction over the dismissal as a final or der under 28
U.S.C. S 1291.
6
III.
PERSONAL JURISDICTION OVER
INDIVIDUAL DEFENDANTS
Remick does not deny that individual defendants
Manfredy, John Manfredy, Brown, and Klaus are not
residents of Pennsylvania. Manfredy is an Indiana resident,
and the other defendants are residents of Illinois. Under
Fed. R. Civ. P. 4(e), a district court may assert personal
jurisdiction "over non-resident defendants to the extent
permissible under the law of the state wher e the district
court sits." Pennzoil Prod. Co. v. Colelli & Assocs., Inc., 149
F.3d 197, 200 (3d Cir. 1998) (citation omitted).
Pennsylvania's long-arm statute, 42 Pa. Cons. Stat. Ann.
S 5322(b), authorizes Pennsylvania courts"to exercise
personal jurisdiction over nonresident defendants to the
constitutional limits of the due process clause of the
fourteenth amendment." Mellon Bank (East) PSFS, Nat'l
Ass'n v. Farino, 960 F.2d 1217, 1221 (3d Cir. 1992).
Due process requires that the defendant have "minimum
contacts" in the forum state, and that the exer cise of
jurisdiction comport with "traditional notions of fair play
and substantial justice." International Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945) (quotations omitted).
The Supreme Court has stated that "minimum contacts
must have a basis in ``some act by which the defendant
purposefully avails itself of the privilege of conducting
activities within the forum State, thus invoking the benefits
and protections of its laws.' " Asahi Metal Indus. Co., Ltd. v.
Superior Court of California, 480 U.S. 102, 109 (1987)
(quoting Burger King Corp. v. Rudzewicz , 471 U.S. 462, 475
(1985)).
Personal jurisdiction may be exercised under two distinct
theories, a defendant's general or claim-specific contacts
with the forum. General jurisdiction is based upon the
defendant's "continuous and systematic" contacts with the
forum and exists even if the plaintiff 's cause of action
arises from the defendant's non-forum r elated activities.
See Vetrotex CertainTeed Corp. v. Consol. Fiber Glass Prod.
Co., 75 F.3d 147, 151 n.3 (3d Cir . 1996) (citations omitted).
7
In contrast, specific jurisdiction is present only if the
plaintiff 's cause of action arises out of a defendant's forum-
related activities, such that the defendant" ``should
reasonably anticipate being haled into court' " in that
forum. Id. at 151 (quoting World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 297 (1980)).
The District Court found that it had general jurisdiction
over the D'Ancona & Pflaum law firm, but that it did not
have general jurisdiction over the individual defendants.
Neither of these determinations has been questioned on
appeal. Therefore, we confine our inquiry to whether the
District Court can exercise specific jurisdiction over the
individual defendants.
Such a determination is claim specific because a
conclusion that the District Court has personal jurisdiction
over one of the defendants as to a particular claim asserted
by Remick does not necessarily mean that it has personal
jurisdiction over that same defendant as to Remick's other
claims. See Gehling v. St. George's Sch. of Med., Ltd., 773
F.2d 539 (3d Cir. 1985) (finding personal jurisdiction over
defendant in wrongful death action with r egard to
fraudulent misrepresentation and emotional distress claims
but not as to plaintiffs' negligence and br each of contract
claims); see also Carteret Sav. Bank, F A v. Shushan, 954
F.2d 141 (3d Cir. 1992) (examining the issue of personal
jurisdiction as to plaintiff 's fraud claim separately from
plaintiff 's breach of fiduciary duty claim); Provident Nat'l
Bank v. California Fed. Sav. & Loan Ass'n, 819 F.2d 434,
437 (3d Cir. 1987) (describing specific jurisdiction as
present when "the particular cause of action sued upon
arose from the defendant's activities within the forum
state").
In holding that it did not have specific personal
jurisdiction over the individual defendants, the District
Court did not conduct a claim-specific analysis except as to
the breach of contract claim. It may not be necessary to do
so in every multiple claim case, but because ther e are
different considerations in analyzing jurisdiction over
contract claims and over certain tort claims, we believe
such differentiation is requir ed here.
8
A. Specific Jurisdiction Over Manfr edy for Breach of
Contract Claim
Remick's claims against Angel Manfredy ar e breach of
contract and the tort claims of defamation, civil conspiracy,
and misappropriation of image and likeness. In determining
jurisdiction over a breach of contract claim, we must
consider the totality of the circumstances, including the
location and character of the contract negotiations, the
terms of the contract, and the parties' actual course of
dealing. See Farino, 960 F.2d at 1223.
The District Court based its decision that ther e was no
jurisdiction over Manfredy on the breach of contract claim
primarily on this court's decision in Vetrotex, where we held
that the circumstances attending two supply agr eements
did not support the district court's exercise of specific
personal jurisdiction. 75 F.3d at 152. W e stated that
" ``informational communications in furtherance of [a
contract between a resident and a nonresident] does [sic]
not establish the purposeful activity necessary for a valid
assertion of personal jurisdiction over [the nonr esident
defendant].' " Id. (quoting Sunbelt Corp. v. Noble, Denton &
Assoc., Inc., 5 F.3d 28, 32 (3d Cir . 1993)). Nevertheless, we
expressly acknowledged that in many instances, personal
jurisdiction can arise primarily from a nonr esident
defendant's contract with a forum resident. In Vetrotex, we
distinguished
other cases where jurisdiction over a nonr esident
defendant has been premised largely on the
defendant's contract with a resident of the forum state.
For instance, this is not a case where the defendant
solicited the contract or initiated the business
relationship leading up to the contract. Nor is this a
case where the defendant sent any payments to the
plaintiff in the forum state, or where the defendant
engaged in extensive post-sale contacts with the
plaintiff in the forum state.
Id. at 152-53 (citations omitted).
Remick's contract claim is comparable to those
distinguished in Vetrotex. According to Remick's affidavit,
Manfredy sought Remick out by placing a telephone call to
9
Remick's associate Resnick at their office in Philadelphia.
This solicitation eventually resulted in the fee agreement
between Remick and Manfredy, which Remick signed in,
and Manfredy signed and returned to, Pennsylvania. The
agreement noted that its formality was r equired by the
Pennsylvania Rules of Professional Conduct, suggesting
that Manfredy was receiving the benefit of Pennsylvania law
under the agreement. In addition, at least one payment was
sent by Manfredy to Remick at his Philadelphia office. Most
of the services performed by Remick on behalf of Manfredy
were conducted at Remick's Philadelphia office, and
Manfredy certainly should have expected as much as he
knew that Remick's home office is in Philadelphia.
Finally, there were repeated "informational
communications" during the course of the contractual
relationship between Manfredy and Remick with Remick at
his Philadelphia office, including the final communication
-- Manfredy's termination letter of Mar ch 2, 1998. See
Grand Entm't Group, Ltd. v. Star Media Sales, Inc., 988 F.2d
476, 482 (3d Cir. 1993) ("Mail and telephone
communications sent by the defendant into the forum may
count toward the minimum contacts that support
jurisdiction."). These facts as a whole involved more
entangling contacts than the mere "infor mational
communications" at issue in Vetr otex.
Decisions in two other cases also support finding
personal jurisdiction here. In Farino, we upheld jurisdiction
over out-of-state defendants who had approached a
Pennsylvania bank seeking to borrow money. W e quoted
from the Supreme Court's decision in Burger King, where
the Court commented that jurisdiction is proper where
parties "reach out beyond one state and cr eate continuing
relationships and obligations with citizens of another state."
Farino, 960 F.2d at 1222 (quoting Bur ger King, 471 U.S. at
473). Analogizing to that situation, we stated in Farino that
by approaching the bank, the defendants "establish[ed] a
business relationship with a Pennsylvania entity" and
"knowingly created continuing obligations with a citizen of
Pennsylvania." Id. at 1223. We commented that "[w]hen a
defendant has received the benefits and pr otections of the
forum's laws by engaging in business activities with a
10
forum resident, the courts have ``consistently rejected the
notion that an absence of physical contacts can defeat
personal jurisdiction there.' " Id. at 1225 (quoting Burger
King, 471 U.S. at 476); see also Time Share Vacation Club
v. Atlantic Resorts, Ltd., 735 F.2d 61, 65-66 (3d Cir. 1984)
("What is required . . . is actual evidence that, by entering
into the contract, the particular defendant could foresee
impact within Pennsylvania.").
In a situation similar to that before us, in which a
Virginia law firm sued a California attorney in Virginia to
collect fees after the attorney had retained the law firm as
co-counsel to assist him in a California case, the Court of
Appeals for the Fourth Circuit stated:
[The defendant] initiated the relationship with [the
plaintiff], knowing that [the plaintif f] was a Virginia
lawyer who likely would do the requested work in
Virginia. [The defendant] contracted with [the plaintiff]
in Virginia, first by telephone and later in a writing that
[the plaintiff], as the last party to sign, executed in
Virginia. [The plaintiff] performed all of his duties
under the contract in Virginia. Finally, the parties
exchanged numerous telephone calls and written
communications. Few examples of transacting
business are more classic than [the defendant's]
decision to associate a Virginia lawfirm on a case and
his subsequent dealings with that firm. Because [the
defendant] transacted business in Vir ginia, and
because [the plaintiff 's] cause of action arose directly
from those activities, the Virginia long-arm statute is
satisfied.
English & Smith v. Metzger, 901 F.2d 36, 39 (4th Cir. 1990)
(footnote omitted). Significantly, Vir ginia's long-arm statute
has been interpreted, like Pennsylvania's,"to extend
jurisdiction to the extent permissible under the due process
clause." Id. at 38.
In light of the limiting language in Vetr otex, the factual
distinctions between Vetrotex and the case at hand, and the
decisions in Farino and English & Smith , we conclude that
the District Court has personal jurisdiction over Manfredy
for Remick's breach of contract claim and that the District
Court erred as a matter of law in holding to the contrary.
11
B. Specific Jurisdiction over Individual Defendants for
Defamation
Remick asserts his defamation claim against all four
individual defendants as well as the law fir m. Here we
consider only whether there is jurisdiction against the
individual defendants on this claim.
Remick's defamation claim arises out of two letters, both
sent to Remick with no copies showing any other
Pennsylvania recipient. The first letter , dated March 2,
1998, was from Manfredy to Remick ter minating his
representation because of alleged br oken promises and
failures as a negotiator. In his affidavit, Remick states that
the letter was faxed to him and that, while it was sitting on
the office fax machine, his daughter (who we assume was
working in the office) and an office secr etary "picked up the
letter and reviewed it." App. at 68. This, Remick contends,
constituted publication in Pennsylvania. The complaint also
alleges that the charges in the letter wer e published "in
whole or in part" by Brown and John Manfr edy to "other
members of the professional boxing community," including
Kushner. App. at 95-96. The second letter , dated September
11, 1998, was sent by Klaus to Remick and reiterated
Manfredy's statements in the March 2nd letter that Remick
was fired for inadequately representing Manfredy and urged
him to stop "insist[ing] on attempting to extort money."
App. at 121. Remick alleges that the letter and the charges
therein were published and distributed"elsewhere into the
boxing community." App. at 97.
Remick argues that the District Court has specific
personal jurisdiction over the individual defendants as to
his defamation claim because the allegedly defamatory
statements targeted a Pennsylvania resident's forum-related
activities and were published in Pennsylvania. Remick
relies on Calder v. Jones, 465 U.S. 783 (1984), where the
Supreme Court set forth the "effects test" for determining
personal jurisdiction over nonresident defendants who
allegedly committed an intentional tort outside the forum.
Calder involved an allegedly libelous National Enquirer
article written and edited in Florida and published
nationwide concerning the California activities of a
California resident. Because the Califor nia resident was an
12
entertainer in Hollywood, the story had its gr eatest impact
in California. The Court held that Califor nia had personal
jurisdiction over the author and editor because the"effects"
of their Florida conduct were chiefly felt in California, the
state in which plaintiff lived and worked. See id. at 789.
The Court emphasized that the alleged tort was not"mere
untargeted negligence" but rather "intentional, and
allegedly tortious, actions . . . expressly aimed at [the forum
state]." Id.
This court applied Calder in Imo Industries, Inc. v. Kiekert
AG, 155 F.3d 254 (3d Cir. 1998), where we held that the
Calder "effects test" requir es the plaintiff to show that:
(1) The defendant committed an intentional tort ;
(2) The plaintiff felt the brunt of the harm in the forum
such that the forum can be said to be the focal point
of the harm suffered by the plaintiff as a result of that
tort;
(3) The defendant expressly aimed his tortious conduct
at the forum such that the forum can be said to be the
focal point of the tortious activity.
Id. at 265-66 (footnote omitted) (emphasis added).
In Imo Industries, we held that New Jersey did not have
personal jurisdiction over a German corporation for
tortiously interfering with the plaintif f 's attempt to sell its
Italian subsidiary to a French corporation because New
Jersey, where the plaintiff 's headquarters was located, was
not the focus of the dispute. We stated that"[s]imply
asserting that the defendant knew that the plaintif f 's
principal place of business was located in the forum would
be insufficient in itself . . . . The defendant must manifest
behavior intentionally targeted at and focused on the forum
for Calder to be satisfied." Id. at 265 (quotation omitted)
(footnote omitted). We added that "the plaintiff must show
that the defendant knew that the plaintiff would suffer the
brunt of the harm caused by the tortious conduct in the
forum, and point to specific activity indicating that the
defendant expressly aimed its tortious conduct at the
forum." Id. at 266.
13
Applying the three-part test of Imo Industries to this case,
where the allegedly defamatory letters wer e written outside
Pennsylvania, see Calder, 465 U.S. at 789 (finding that
defamatory article written in Florida was "Florida conduct"),
we conclude that Remick satisfies the first two parts.
Defamation is an intentional tort and, because Remick's
professional activities are center ed in Pennsylvania and the
allegedly defamatory letters question Remick's pr ofessional
ability, Remick may reasonably contend that he suffered
the brunt of the harm in Pennsylvania. See Keeton v.
Hustler Magazine, Inc., 465 U.S. 770, 780 (1984) (finding
that individuals endure the bulk of har m from torts like
defamation in their home states).
However, we believe that Remick has not met the last
requirement of Imo Industries. Remick argues that because
two persons in his office read the Mar ch 2nd letter while it
was on the fax machine, it was published in Pennsylvania
and therefore the targeting r equirement was satisfied. At
oral argument, he amplified that position, contending that
such publication alone was sufficient to subject the sender
to personal jurisdiction. We are not persuaded because it is
clear from Remick's own affidavit that the two persons in
his office read the March 2nd letter solely because it was
lying on the fax machine. There is no indication that the
letter was targeted at them or at anyone in Pennsylvania
other than Remick. Cf. Calder, 465 U.S. at 785 (finding that
600,000 copies of National Enquirer regularly sold in
California). Therefore, this publication provides no basis for
jurisdiction.
According to Remick, the allegedly defamatory letters and
the charges therein were published throughout the boxing
community, not just in Philadelphia. Significantly, Remick
has not asserted that Pennsylvania has a unique
relationship with the boxing industry, as distinguished
from the relationship in Calder between California and the
motion picture industry, with which the Calder plaintiff was
associated. See Imo Industries, 155 F .3d at 264 n.7. Even
if the letter itself, other than merely the charges in the
letter as the complaint alleges, were distributed or shared
with other persons in the professional boxing community,
such persons were apparently located thr oughout the
14
country. Unlike the defendants in Calder, whose national
magazine is published in California mor e than any other
state and whose story focused on California, see Calder 465
U.S. at 788-89, it cannot be said that the defendants here
expressly aimed their conduct at Pennsylvania so that
Pennsylvania was the focal point of the tortious activity.
The same analysis applies to the second letter . Therefore,
the three-part test of Imo Industries was not met. It follows
that the District Court did not err as a matter of law in
holding that it lacked personal jurisdiction over the
individual defendants with regard to Remick's defamation
claim.
C. Specific Jurisdiction over Angel and John Manfredy
for Misappropriation of Image and Likeness
For the same reason, we conclude that the District Court
does not have specific jurisdiction over the Manfr edy
brothers on Remick's misappropriation of image claim, a
claim that Remick brings only against the two of them.
That claim is based on the posting on Manfredy's old
website without Remick's authorization of a single
photograph of numerous persons that included Remick.
The Calder "effects test" is clearly not satisfied. Given that
the website was intended to provide infor mation on
Manfredy and that it was accessible worldwide, there is no
basis to conclude that the defendants expressly aimed their
allegedly tortious activity at Pennsylvania knowing that
harm was likely to be caused there. See Imo Industries, 155
F.3d at 264 (quoting Cybersell, Inc. v. Cybersell, Inc., 130
F.3d 414, 420 (9th Cir. 1997)).3 Any resulting harm to
Remick was merely incidental. Therefor e, we agree with the
District Court's determination that it lacked personal
jurisdiction over the Manfredy brothers on Remick's
misappropriation of image and likeness claim.
_________________________________________________________________
3. The facts in this case do not requir e that we consider the current
debate as to which fora have jurisdiction over a defendant who seeks to
use its website for the solicitation of or transaction of business. The
District Court summarized its view of the law in the area, in which it had
concluded that the mere posting of infor mation or advertisements on an
Internet website does not confer nationwide personal jurisdiction. See
Remick, 52 F. Supp. 2d at 457. We do not disagree.
15
D. Specific Jurisdiction over John Manfr edy and Brown
for Tortious Interference
The final tort claim against individual defendants before
us on appeal is Remick's claim against defendants John
Manfredy and Brown for tortious inter ference with
contractual relations, which the District Court dismissed
for lack of personal jurisdiction. Remick alleges that John
Manfredy and Brown, among other things,"set[ ] Remick up
to fail in the negotiations over the Azumah Nelsonfight and
. . . publish[ed] and disseminat[ed] false and defamatory
information about Remick's skill and ability" with the intent
"to interfere[ ] and cause harm" to Remick's contract with
Manfredy. App. at 99. In his appellate brief, Remick claims
that John Manfredy and Brown engaged in this activity so
that Angel Manfredy would replace Remick with D'Ancona
& Pflaum and Brown. See Br. of Appellant at 40-41.
Tortious interference is an intentional tort, and therefore
we must apply the Calder holding, as we did in Imo
Industries, to determine the existence of personal
jurisdiction. See 155 F.3d at 266-68.
As we noted in discussing jurisdiction over the
individuals on Remick's defamation claim, the brunt of the
harm caused by the alleged intentional tort must
necessarily have been felt by Remick in Pennsylvania, as
his business practice is based in Philadelphia. Although we
concluded there that Remick could not show the
defendants expressly aimed their tortious conduct at
Pennsylvania so that this forum can be viewed as the focal
point of the tortious activity, Remick has mor e basis to
support jurisdiction on this claim. Albeit a tort, it is
necessarily related to the contract which he had entered
into with Manfredy and which is the subject of the alleged
tortious interference. Remick asserts in his affidavit that he
conducted the majority of his negotiation, consultation, and
advice services for Manfredy out of his Philadelphia office.
App. at 68. Accepting that assertion as true, it follows that
the effects of any intentional conduct by the defendants
designed to interfere with Remick's contractual relations
with Manfredy necessarily would have been felt in
Pennsylvania.
16
Further, unlike the case in Imo Industries, where the
German defendant's alleged tortious conduct appeared to
have been expressly aimed at injuring a Fr ench company
and not the in-forum plaintiff, in this case Brown and John
Manfredy's alleged tortious conduct was expr essly aimed at
injuring Remick in Pennsylvania where he lives and works.
That is sufficient to satisfy both Calder and IMO Industries.
Thus, we conclude that the District Court err ed as a matter
of law in holding that it lacked specific jurisdiction over the
individual defendants with respect to Remick's claim for
tortious interference.
IV.
CLAIMS AGAINST THE LAW FIRM
A. The Defamation Claim
Although we conclude that the District Court does not
have personal jurisdiction over Remick's defamation claim
against the four individual defendants, we must r each the
merits of that claim because the court dismissed the
defamation claim against the law firm of D'Ancona &
Pflaum over whom it admittedly had general jurisdiction.4
That firm is claimed to be vicariously liable as the employer
of both Brown and Klaus when Angel Manfr edy sent his
letter to Remick dated March 2, 1998 and Klaus sent her
letter dated September 11, 1998.5 The District Court held
that Remick's complaint failed to state a claim of
defamation. The sufficiency of Remick's pleading raises a
question of law over which we have plenary r eview. See
Moore v. Tartler, 986 F.2d 682, 685 (3d Cir. 1993).
_________________________________________________________________
4. The District Court noted the law firm's admission "that it has records
of having serviced 54 clients in Pennsylvania, some of which are present
clients." Remick, 52 F. Supp. 2d at 459. This led the court to conclude
that the law firm "purposefully availed itself of the privilege of
conducting
activities within this state to justify the exer cise of general personal
jurisdiction over it." Id.
5. Although Brown did not sign the Mar ch 2nd letter, the complaint
makes the general assertion that this letter "was prepared by, and/or
published and disseminated to, other members of the Manfredy team,"
which included Brown. App. at 95.
17
As the District Court recognized, to succeed on a claim
for defamation under Pennsylvania law, a plaintif f must
show, inter alia, a communication capable of having
defamatory meaning. See Remick, 52 F . Supp. 2d at 460;
see also 42 Pa. Cons. Stat. Ann. S 8343(a)(1) (The plaintiff
in a defamation case has the burden of pr oving the
"defamatory character of the communication."). The trial
court must determine as a matter of law whether the
communication is capable of having defamatory meaning; if
not, the claim should be dismissed. See Baker v. Lafayette
College, 516 Pa. 291, 296, 532 A.2d 399, 402 (1987).
Under Pennsylvania law, a statement is defamatory if it
"tends so to harm the reputation of another as to lower him
in the estimation of the community or to deter thir d
persons from associating or dealing with him." Tucker v.
Fischbein, No. 99-1139, slip op. at 9 (3d Cir . January 9,
2001) (quoting Corabi v. Curtis Publ'g Co., 441 Pa. 432,
442, 273 A.2d 899, 904 (1971)). In determining whether a
communication is defamatory, the court must view the
statement "in context" with an eye towar d "the effect the
[statement] is fairly calculated to pr oduce, the impression it
would naturally engender, in the minds of the average
persons among whom it is intended to circulate." Baker,
516 Pa. at 296, 532 A.2d at 402 (quoting Corabi , 441 Pa.
at 447, 273 A.2d at 907). Viewing statements in their
appropriate contexts, courts must deter mine whether they
"tend[ ] to blacken a person's r eputation or to expose him to
public hatred, contempt, or ridicule, or to injure him in his
business or profession." Corabi, 441 Pa. at 441, 273 A.2d
at 904.
The District Court focused on the September 11th letter
and did not address whether Remick's defamation claim
can be based on the March 2nd letter fr om Manfredy.
Remick's complaint alleges that the March 2nd letter
accused him of: (1) failing to adequately repr esent
Manfredy's interests, (2) failing to r ecognize and discharge
his obligations to Manfredy, (3) failing to live up to promises
he had made to Manfredy, and (4) being an inef fective
negotiator and attorney.
Each of these statements expressed Manfr edy's subjective
opinion. In Pennsylvania, an opinion cannot be defamatory
18
unless it "may reasonably be understood to imply the
existence of undisclosed defamatory facts justifying the
opinion." Baker, 516 Pa. at 297, 532 A.2d at 402 (emphasis
added) (quotation omitted). In his March 2nd letter,
Manfredy disclosed the factual basis behind each of his
accusations. He noted five instances in which Remick failed
to adequately represent his interests, including (1) Remick's
business partner's refusal to convey a counter offer in
negotiations for the possible Rueles fight, (2) Remick's
failure to deliver a million-dollar purse following the Gatti
fight, (3) Remick's failure to increase the purse for the Paez
fight, (4) Remick's failure to increase the purse for the
possible Nelson fight (although not referr ed to directly by
name), and (5) Remick's failure to deliver a single
endorsement opportunity through negotiations with
Kushner.
In light of the disclosure of these factual bases, the
opinions set forth by Manfredy in his Mar ch 2nd letter
cannot be considered defamatory. See Redco Corp. v. CBS,
Inc., 758 F.2d 970, 972 (3d Cir. 1985) (finding opinion
disclosing underlying facts not defamatory because"a
listener may choose to accept or reject [the opinion] on the
basis of an independent evaluation of the facts"); Parano v.
O'Connor, 433 Pa. Super. 570, 575, 641 A.2d 607, 609 (Pa.
Super. Ct. 1994) (finding incapable of being defamatory
comments that appellant was adversarial, less than helpful,
and uncooperative because they were subjective opinions
based upon disclosed facts). Rather, they ar e "frank
opinion[s] void of innuendo." Baker, 516 Pa. at 297, 532
A.2d at 402.
As for Klaus' September 11th letter, Remick asserts that
the following statement is defamatory: "If you insist on
attempting to extort money . . . , we will not hesitate to
pursue our legal remedies, including a suit for damages
arising from your failure to adequately represent Mr.
Manfredy." App. at 121 (emphasis added). The District
Court, assuming publication to third parties, found the
statement to be nothing "other than an expr ession of
opinion and dissatisfaction with Mr. Remick's performance
on Mr. Manfredy's behalf." Remick , 52 F. Supp. 2d at 460.
The court recognized that Remick might have found the
19
letter to be personally insulting, but it held that the letter
was not capable of having defamatory meaning.
At oral argument, Remick presented the Klaus letter as
stating that if Remick "continue[s] to extort" money from
Kushner, Klaus and Manfredy would not hesitate to pursue
legal remedies (emphasis added). The language of the letter
does not so state. Admittedly, the word "extort" is a strong
one. In some contexts, when published to thir d parties not
involved in the dispute, the statement that one person is
extorting money from another has been viewed as
defamatory under Pennsylvania law. See, e.g., Frederick v.
Reed Smith Shaw & McClay, 1994 WL 57213, at *11 (E.D.
Pa. February 18, 1994) (finding statement that"accuses
[plaintiff] with committing the crime of extortion" capable of
being defamatory); Corabi, 441 Pa. at 447, 273 A.2d at 907
(finding statements that "convey[ ] to the average reader
imputations of involvement in or actual guilt of crimes
involving moral turpitude" capable of being defamatory);
Pelagatti v. Cohen, 370 Pa. Super. 422, 439, 536 A.2d
1337, 1345 (Pa. Super. Ct. 1987) (finding that "statements
to the effect that an attorney has committed improper,
illegal actions within the context of his practice, would tend
to impugn his integrity, and thereby blacken his business
reputation"); see also DaimlerChrysler Corp. v. Askinazi,
2000 WL 964753, at *5 (E.D. Pa., July 12, 2000) (finding
statement that plaintiff 's lawsuit was"a form of legalized
blackmail" defamatory because it accused plaintif f of
"improper professional conduct"); cf. Thomas Merton Ctr. v.
Rockwell Int'l Corp., 497 Pa. 460, 466, 442 A.2d 213, 216
(1981) (noting that "a publication is defamatory if it
ascribes to another ``conduct, character or a condition that
would adversely affect his fitness for the proper conduct of
his lawful business, trade or profession' ") (quoting
Restatement (Second) of Torts S 573 (1977)).
We believe this case differs fr om those, and that the
Pennsylvania courts would agree. The September 11th
letter was written in the context of two lawyers taking
diametrically opposing legal positions. Moreover, Klaus was
responding to Remick's September 2nd letter to Manfredy,
in which he demanded that Manfredy revoke his
termination letter and threatened to pursue legal remedies
20
of his own. Correspondence between jousting lawyers is not
always drafted with the finesse, tact, and niceties used by
a 19th century novelist, and, as we have previously stated,
"[i]t is well settled that the use of catchy phrases or
hyperbole does not necessarily render statements
defamatory that would otherwise be non-actionable." Redco,
758 F.2d at 972. In this instance, the use of the term
"extort" is non-defamatory "rhetorical hyperbole, a vigorous
epithet used by those who considered [plaintiff 's]
negotiating position extremely unreasonable." Greenbelt
Coop. Publ'g Ass'n, Inc. v. Bresler, 398 U.S. 6, 14 (1970)
(finding "blackmail" accusation not defamatory because no
reader could have thought that plaintif f was being charged
"with the commission of a criminal offense").
While the letter from Klaus probably should have been
toned down, and we encourage counsel to maintain civility
in their correspondence with each other r egardless of the
animosity between clients, the audience to which this
statement was allegedly published knew that it ar ose from
bitter attorney communications.
In his complaint, Remick also alleges that Klaus'
September 11th letter was defamatory because she accused
him of "having committed professional malpractice." App. at
97. Although Remick doesn't identify Klaus' specific
comments in either his complaint or his affidavit, in her
letter Klaus refers to Remick's "failur e to perform [his]
obligations to [Manfredy]" and his"failure to adequately
represent Mr. Manfredy." App. at 121.
Significantly, Klaus stated in her letter that Manfredy's
March 2nd letter made her assertions of pr ofessional
failings "very clear." App. at 121. By reiterating and
specifically incorporating Manfredy's earlier letter into her
own letter, Klaus made known that any facts not disclosed
in her letter were disclosed in the earlier letter. In light of
the context in which this letter was written, Klaus'
comments regarding Remick's professional competence
would be viewed under Pennsylvania law as opinion and
hence not defamatory. It follows that the District Court did
not err in dismissing with prejudice Remick's claim for
defamation against the law firm.
21
B. Claims of Tortious Interfer ence with Contract and
Conspiracy
Remick's remaining contention on appeal is that the
District Court erred in dismissing his tortious interference
with contract and conspiracy claims against D'Ancona &
Pflaum. As noted earlier, the basis for Remick's tortious
interference claim is that Brown, while associated with the
law firm, "set [Remick] up to fail in negotiations by directing
him to make outlandish demands for [the Nelson] bout that
Angel Manfredy was not even physically capable of
fighting." Br. of Appellant at 40. Remick's conspiracy claim
is predicated on the tortious interfer ence claim.
To set forth a viable cause of action for tortious
interference with contract under Pennsylvania law,
plaintiffs must plead the following elements:
(1) the existence of a contractual, or prospective
contractual relation between the complainant and a
third party;
(2) purposeful action on the part of the defendant,
specifically intended to harm the existing r elation, or to
prevent a prospective relation fr om occurring;
(3) the absence of privilege or justification on the part
of the defendant; and
(4) the occasioning of actual legal damage as a r esult of
the defendant's conduct.
Pelagatti, 370 Pa. Super. at 434, 536 A.2d at 1343.
The District Court dismissed Remick's tortious
interference claim because it failed to r easonably inform the
adverse party of the asserted cause of action, which the
court deemed to be the requirement of Fed. R. Civ. P.
8(a)(2). The court found Remick's complaint deficient
because Remick did not "advise the defendant of how its
employee allegedly ``set up' the plaintiff to fail in fight
negotiations and what false and defamatory infor mation
[Brown] is accused of disseminating and to whom." Remick,
52 F. Supp. 2d at 461.
Although the District Court dismissed the tortious
interference with contract claim and the conspiracy claim
22
with leave to replead, in dismissing the court imposed a
pleading requirement beyond that r equired by the Federal
Rules of Civil Procedure. Under the still applicable system
of notice pleading, all Remick was requir ed to do was
provide "a short and plain statement of[his] claim showing
that [he] is entitled to relief." Fed. R. Civ. P. 8(a)(2). Remick
satisfied this requirement, as he put the defendants on
notice as to the circumstances surrounding the alleged
tortious behavior. There are discovery mechanisms, such as
interrogatories, for ascertaining more details regarding the
complaint allegations. Therefore, we cannot affirm the
District Court's dismissal of Remick's claims for tortious
interference and conspiracy against D'Ancona & Pflaum.
V.
CONCLUSION
For the foregoing reasons, we will r everse the District
Court's order dismissing for lack of jurisdiction Remick's
claim against Angel Manfredy for breach of contract and his
claim against John Manfredy and Jeffr ey Brown for tortious
interference with contractual relationships. In all other
respects we will affirm the District Court's order dismissing
the claims against the individual defendants. W e will affirm
the dismissal with prejudice of Remick's claim against
D'Ancona & Pflaum for defamation. We will r everse the
order insofar as it dismissed under Rule 12(b)(6) Remick's
claims against the law firm for tortious interference with
contract and conspiracy. On remand, the District Court
may want to address promptly the defendants' alternative
motion to transfer. Each party to bear its own costs.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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