Asanov v. Gholson, Hicks & Nichols, P.A.

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
11-2-2006
Asanov v. Gholson Hicks
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2623
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"Asanov v. Gholson Hicks" (2006). 2006 Decisions. Paper 247.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/247
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-2623
ALEXANDER N. ASANOV; OLGA S. PETROVA-ASANOV;
LUDMILA A. ASANOV; BIOELECTROSPEC INC
v.
GHOLSON, HICKS & NICHOLS, P.A.;
DEWITT T. HICKS, JR.; M. JAY NICHOLS
Alexander N. Asanov, Olga
S. Petrova-Asanov, Ludmila A. Asanov,
Appellants
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 05-cv-2098)
District Judge: Honorable Christopher C. Conner
Submitted Under Third Circuit LAR 34.1(a)
October 11, 2006
Before: BARRY, CHAGARES, AND COWEN, CIRCUIT JUDGES
(Filed: November 2, 2006 )
OPINION
PER CURIAM
Appellants Alexander N. Asanov, Olga S. Petrova-Asanov, and Ludmila A.
Asanov (collectively “the Asanovs”) filed suit against a Mississippi law firm, Gholson,
Hicks & Nichols, P.A., and two of its attorneys, Mississippi residents Dewitt T. Hicks,
Jr., and M. Jay Nichols (collectively “the law firm defendants”).1 The Asanovs sued the
law firm defendants for representing two individuals who sued the Asanovs in the United
States District Court for the Northern District of Mississippi. Not only did the Asanovs
allege that the lawsuit filed by the law firm defendants was frivolous, they also took issue
with the law firm defendants’ actions in the Mississippi district court. For instance, they
alleged that the law firm defendants committed fraud upon the Mississippi court by
fabricating false documents and otherwise, and that the law firm defendants demonstrated
incompetence in their actions in that forum by not understanding terms like “contract”
and “contractual agreement.” The law firm defendants moved to dismiss the Asanovs’
complaint, arguing that the District Court, sitting in the Middle District of Pennsylvania,
did not have personal jurisdiction over them. The District Court granted the motion, and
dismissed the Asanovs’ complaint. The Asanovs appeal and move for appointment of
1
The suit was also brought in the name of BioElectroSpec, Inc., the Asanovs’
company. On the defendants’ motion, the District Court dismissed BioElectroSpec, Inc.,
from the Asanovs’ action because BioElectroSpec, Inc., was not represented by counsel.
See Rowland v. California Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194,
201-02 (1993). The Asanovs specifically do not appeal from the order dismissing
BioElectroSpec, Inc., from the action. (Appellants’ Reply Brief at 3.)
2
counsel.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise de novo review
over the District Court’s decision that it lacks personal jurisdiction over the law firm
defendants. See Telecordia Tech Inc. v. Telkom SA Ltd., ___ F.3d ___, No. 05-1653,
2006 WL 2337266, at *2 (3d Cir. Aug. 14, 2006). We accept all of the allegations in the
Asanovs’ complaint and construe disputed facts in favor of the Asanovs. See id.
However, we review the factual findings of the District Court for clear error. See id.
Employing these standards of review, we will affirm the order of the District Court, as the
District Court correctly concluded that it lacked personal jurisdiction over the law firm
defendants.
We have elsewhere summarized the essential applicable rules governing the
exercise of personal jurisdiction, specifically:
A federal district court may assert personal jurisdiction over a nonresident
of the state in which the court sits to the extent authorized by the law of that
state. Fed.R.Civ.P. 4(e). The Pennsylvania Long-Arm Statute provides in
relevant part that “the jurisdiction of the tribunals of this Commonwealth
shall extend . . . to the fullest extent allowed under the Constitution of the
United States and may be based on the most minimum contact with this
Commonwealth allowed under the Constitution of the United States.” 42
Pa.Cons.Stat.Ann. § 5322(b) (Purdon 1981). See Time Share Vacation Club
v. Atlantic Resorts, Ltd., 735 F.2d 61, 63 (3d Cir. 1984). The due process
clause of the fourteenth amendment of the United States limits the reach of
the long-arm statutes so that a court may not assert personal jurisdiction
over a non-resident 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.’ ” International Shoe Co. v.
Washington, 326 U.S. 310, 316 . . . (1945) (quoting Milliken v. Meyer, 311
U.S. 457, 463 . . . (1940)). The nature of these contacts must be such that
3
the defendant should be reasonably able to anticipate being haled into court
in the forum state. World-Wide Volkswagen Corp. v. Woodson, 444 U.S.
286, 297 . . . (1980).
Provident Nat’l Bank v. California Federal Sav. & Loan Ass’n, 819 F.2d 434, 436-37 (3d
Cir. 1987).
Because the law firm defendants raised a jurisdictional defense, the Asanovs bore
the burden of establishing with reasonable particularity sufficient contacts between the
defendants and Pennsylvania, the forum state, to support jurisdiction. See Provident Nat’l
Bank, 819 F.2d at 437. The Asanovs were obligated to show general jurisdiction, that is,
that the defendants had continuous and systematic contacts with the forum state, or
specific jurisdiction, that their cause of action arose upon the defendants’ activities within
the forum state. See id.
The Asanovs did not meet their burden to show either general or specific
jurisdiction. In their complaint, the Asanovs alleged generally that the law firm
defendants “made numerous contacts with Pennsylvania.” (Complaint at 1.) They
described the contacts as “extensive in time.” (Id.) In affidavits attached to the
complaint, the Asanovs further contended that defendants Hicks and Nichols “made
numerous contacts . . . over the phone, fax, electronic and surface mail.” (Id., Affidavit
of Alexander N. Asanov at 2.) The Asanovs reiterated these allegations in their response
to the law firm defendants’ motion to dismiss for lack of personal jurisdiction. The
response itself borders on inadequate. See Time Share Vacation Club v. Atlantic Resorts,
4
Inc., 735 F.2d 61, 66 (3d Cir. 1984) (holding that a plaintiff establishing personal
jurisdiction must present more than “mere affidavits which parrot and do no more than
restate plaintiff’s allegations without identification of particular defendants and without
factual content”).
In any event, the contacts that the Asanovs describe, all arising from the parties’
interactions in relation to the Mississippi lawsuit, are not the continuous and substantial
contacts that support general jurisdiction. Furthermore, although mail and telephone
communications and the like sent by defendants into the forum may count as minimum
contacts that support jurisdiction, see Grand Entm’t Group v. Star Media Sales, 988 F.2d
476, 482 (3d Cir. 1993), they do not support specific jurisdiction in this case. We must
focus on “the relationship of the transaction giving rise to the lawsuit to the forum where
the plaintiff[s] seek[] to litigate it.” See Reliance Steel Products Co. v. Watson, Ess,
Marshall & Enggas, 675 F.2d 587, 588 (3d Cir. 1982). The Asanovs’ cause of action did
not arise from the multiple “phone, fax, electronic and surface mail” contacts (as a lawsuit
relating to contract negotiations over the phone or fax might, see Grand Entm’t Group,
988 F.2d at 482-83, or a claim based on tortious misrepresentations in phone, fax, and
other correspondence could, see Kultur Int’l Films v. Covent Garden Pioneer, FSP, 860 F.
Supp. 1055, 1062 (D.N.J. 1994)). Their lawsuit in the Middle District of Pennsylvania
arose from the law firm defendants’ actions in the Northern District of Mississippi,
namely the purported fraud and incompetence in that forum. Accordingly, the contacts
5
that the law firm defendants had with the Asanovs in this forum are not minimum
contacts that support specific jurisdiction. Cf. Sher v. Johnson, 911 F.2d 1357, 1363 (9th
Cir. 1990) (holding that “normal incidents” of legal representation, such as making phone
calls and sending letters, do not, by themselves, establish purposeful availment to support
the assertion of personal jurisdiction).
In sum, the District Court properly dismissed the Asanovs’ suit against the law
firm defendants for lack of personal jurisdiction. Accordingly, we will affirm the District
Court’s judgment. The Asanovs’ motion for appointment of counsel is denied.
6