THE LAW FIRM DAVID OH, P.C.

BY: DAVID H. OH, ESQUIRE

ATTORNEY I.D. NO.: 44427 ATTORNEYS FOR DEFENDANTS

THE NORTH AMERICAN BUILDING

121 S. BROAD STREET, 14TH FLOOR

PHILADELPHIA, PA 19107

(215) 732-3244

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BANK EXPRESS INTERNATIONAL, )

Plaintiff, )

)

v. ) CIVIL ACTION NO.: 02-CV- 4076

)

KANG; CREDIT CARD SERVICES, INC., )

dba BANKCARD SERVICES, et al.,)

Defendants. )

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION 

TO DISMISS AND STRIKE PLAINTIFF’S AMENDED COMPLAINT

INTRODUCTION

All defendants in this action, through undersigned counsel and pursuant to Fed. R. Civ. P.

12(b)(2) and 12(b)(3), move for dismissal of this action for lack of jurisdiction over the persons

of defendants and for improper venue.

Defendants filed a Motion to Dismiss and Strike Plaintiff’s Complaint with this Court on

July 3, 2002, in response to Plaintiff’s Complaint, removed to this Court from the Montgomery

County Court of Common Pleas on June 27, 2002. In the Memorandum of Law in Support of

Defendants’ Motion to Dismiss and Strike Plaintiff’s Complaint, Defendants showed that, with

reference to the Complaint personal jurisdiction does not exist with respect to any defendant in

this action. Plaintiff’s Complaint did not allege sufficient factual basis to assert either general or

specific jurisdiction. Plaintiff filed a Memorandum in Opposition, but neglected to attach a

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verification of new factual information asserted therein, some of which has been included in

Plaintiff’s Amended Complaint, which likewise lacks a verification.

Pursuant to F.R.C.P. 15(a), a responsive pleading must be filed within ten days of any

amended pleading or within the time remaining for response to the original pleading. Defendants

therefore file this Motion to Dismiss and Strike Plaintiff’s Amended Complaint. In doing so,

Defendants incorporate the July 3, 2002, Motion to Dismiss and Strike Plaintiff’s Complaint and

their Memorandum of Law in Support by reference. In the interest of brevity Defendants will

refer to the legal arguments contained therein without reproducing them in full, and will limit this

Memorandum to new matter presented in Plaintiff’s Amended Complaint.

FACTS

Plaintiff’s Amended Complaint

1. Plaintiff filed its Amended Complaint in this matter, with attachments thereto, on

August 26, 2002, and served Defendants by mail.

2. The Amended Complaint continues to acknowledge that all the defendants are

California businesses.

3. The Amended Complaint alleges that Plaintiff is entitled to damages from each of

the ‘Merchant Defendants’ for breach of alleged Automatic Teller Machine (ATM) procurement,

servicing and monitoring contracts and for ‘unjust enrichment’ of the ‘Merchant Defendants.’

Amended Complaint ¶¶ 84 - 91.

4. The Amended Complaint also alleges that Defendant BCS tortiously acquired

confidential information, and used that information to its own benefit and Plaintiff’s detriment

while interfering with and inducing the ‘Merchant Defendants’ to breach their contracts. The

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Amended Complaint accuses Defendant BCS of disparaging Plaintiff’s reputation. Plaintiff

claims special damages for the alleged tortious acts of BCS. Amended Complaint ¶¶ 92 - 120.

5. However, the Amended Complaint still does not assert sufficient factual or legal

basis for this Court to exercise personal jurisdiction over any defendant to this action. Further,

the Amended Complaint has not shown this is a proper venue for this action and the Amended

Complaint, like the original Complaint is deficient in its allegations, both factual and legal.

ARGUMENT

A. THIS ACTION MUST BE DISMISSED FOR LACK OF IN PERSONAM

JURISDICTION OVER THE DEFENDANTS

None of the defendants are subject to personal jurisdiction in this forum. The grounds for

this assertion by Defendants are more fully set forth in their first Motion to Dismiss and Strike

Plaintiff’s Complaint and the accompanying Memorandum of Law in Support.

 Initially, Plaintiff has not shown that any defendant has the necessary ‘minimum contacts’

with this forum sufficient to bring them within the reach of Pennsylvania's long-arm statute, 42

Pa.C.S.A. §5301, et seq. 

Next, Plaintiff has not met, and cannot meet, its burden of demonstrating the extent and

nature of contacts by any of the defendants with this forum sufficient to subject any of them to

either specific or general jurisdiction in this forum.

First, with respect to general jurisdiction, plaintiff has not demonstrated “continuous and

substantial” contacts between any defendant and Pennsylvania. Plaintiff’s only allegations of

contact with Pennsylvania by the ‘Merchant Defendants,’ that they received sent correspondence

to Plaintiff in this forum and that they received checks from this forum, are insufficient. Merely

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doing business with a company, even on a continuing basis, is not sufficient under Imo Indus.,

Inc. v. Kiekert, A.G., 155 F.3d 254, 260 (3d Cir. 1998). Plaintiff’s Amended Complaint actually

supports the defendants’ contention by alleging that the ‘Merchant Defendants’ all run

restaurants or shops in California and failing to make any allegation that any of them ships,

markets or contacts Pennsylvania for general business purposes. Plaintiff also asserts that

Defendant BCS is a California company doing business in California but makes no assertion the

BCS has ever done business in this forum. Thus, Plaintiff has no cognizable claim of general

jurisdiction over any defendant.

Specific personal jurisdiction does not exist over any of the defendants in this forum. The

defendants claim lack of specific jurisdiction because more than a showing ‘minimum contacts’

is necessary. The requirements set forth in Gallant v. Trustees of Columbia Univ. of New York,

111 F. Supp.2d 638 (E.D.Pa. 2000), aff’d (3d Cir. May 15, 2001) state:

. . . a plaintiff may show that the court has specific jurisdiction because the particular

cause of action arose from the defendant's forum-related activities. See Helicopteros, 466

U.S. at 414 . . . .

When evaluating a corporation's ties to a forum, a court should look to that party's

"purposeful and extensive availment" of the forum, id., and consider the degree to which

the corporation's contacts are "central to the conduct of its business." Id. at 438; see also

Molnlycke Health Care AB v. Dumex Med. Surgical Prods., Ltd., 64 F. Supp.2d 448, 450

(E.D.Pa. 1999)(same).

111 F.Supp.2d at 640-642 (emphasis added). Plaintiff’s Amended Complaint does not allege

that its cause of action arose from activities by any of the defendants within the Commonwealth

of Pennsylvania. Plaintiff has shown the opposite by asserting that the ‘Merchant Defendants’

are all shops in California, and that its agents, specifically Johe “who was responsible for

solicitations in the geographical area,” approached the ‘Merchant Defendants’ offering to supply

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ATM procurement and monitoring services. See Amended Complaint, ¶¶ 5, 6, 7, and 98. 

Logically, the defendants would have done business in exactly the same way whether Plaintiff’s

agents were from Pennsylvania, New York, or anywhere else. Plaintiff has made no assertion

that these defendants contacted Plaintiff seeking such services. Plaintiff’s allegations regarding

submission of applications to Plaintiff, implying that the ‘Merchant Defendants’ sought out

Plaintiff, all reference exhibits printed on Plaintiff’s forms, suggesting contact by Plaintiff to

dispense these forms prior to their submission. Thus, plaintiff’s reliance on submission of those

forms cannot show that the ‘Merchant Defendants’ initiated contact. Finally, there has been no

claim by Plaintiff that the ATM services sought were “central to the conduct of the businesses to

which they were sold. Defendant BCS is not accused of doing business in Pennsylvania either. 

Thus, Plaintiff has not shown that any of the defendants availed themselves of the privilege of

doing business in Pennsylvania in this specific instance and none can be subject to specific

personal jurisdiction on that basis.

Plaintiff mistakenly stresses its contention that the ‘Merchant Defendants’ were put on

notice of Plaintiff’s address, in an attempt to bolster its contention that signing agreements with

and sending correspondence to a Pennsylvania company should be sufficient for this Court to

exercise specific jurisdiction. However, this ignores a whole body of case law from Asahi Metal

Indus. Co., Ltd. v. Superior Ct. of California, 480 U.S. 102 (1987) down to Vetrotex CertanTeed

Corp. v. Consol. Fiber Glass Prod. Co., 75 F.3d 147 (3d Cir. 1996) wherein the Court

distinguished a case mirroring the present one from 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

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 Note also that the location of Plaintiff’s servicing establishmen t should be irr elevant. Plain tiff’s claim

taken to its logical conclusion leads to ridiculous results. In such cases, if Plaintiff’s service facility moved, so long

as defendants were informed of the move and the new location, they would be subject to jurisdiction - wherever

Plaintiff’s business w ent.

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the plaintiff in the forum state.

Remick v. Manfredy, 238 F.3d 248 (3rd Cir. 2001)(quoting Vetrotex at 152-53). Thus, which

party initiated contact is the first issue, after which the court visits other factors, such as location

of services rendered or shipping of product to determine if a party has availed itself of doing

business in a particular forum. Plaintiff initiated the contact through his agents and provided

services to the ‘Merchant Defendants’ in California. No other events are presented creating

greater contacts between the defendants and Pennsylvania.

Plaintiff attempts to obscure the issue by substituting the services it allegedly rendered

“from its principal place of business” in Pennsylvania for the actual contractual services under

the alleged agreements in order to show ‘minimum contacts’ with Pennsylvania. Plaintiff argues

that the contracts were performed, and intended to be performed in Pennsylvania because the

services were rendered “from its offices” in Pennsylvania.1 However, the alleged agreements,

appended to Plaintiff’s Amended Complaint, directly contradict this point. Those contracts and

the Amended Complaint evidence that the contractual services contemplated include procuring,

servicing, and monitoring ATM machines in the establishments in California. According to the

Amended Complaint, all the physical manifestations of the contractual services, including receipt

of mailed checks and contracts by defendants, delivery and servicing of the machines, the actual

transactions by customers of the machines, and solicitations and meetings with Plaintiff’s agents,

occurred in California. Thus, Plaintiff has failed to show contacts with Pennsylvania by the

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‘Merchant Defendants’ sufficient to defeat the initiation of business by Plaintiff in California.

Finally, Plaintiff asserts that the contracts were not formed until they were executed in

Pennsylvania by its officer, again giving rise to a claim of ‘minimum contacts’ or significant

events having occurred in the forum. However, the contracts appended to Plaintiff’s Amended

Complaint clearly state that they shall not be effective until accepted by Plaintiff and duly signed

by its authorized representative. They do not preclude formation of the contracts until signatures

are affixed, nor do they require such execution in Pennsylvania. Plaintiff’s agent approached the

‘Merchant Defendants’ with form contracts, in California, offering to supply ATM services. The

‘Merchant Defendants’ allegedly accepted the offers and signed the contracts allegedly governed

by Pennsylvania law. At that point the alleged contracts were formed in California, though they

were not yet effective. See Shovel Transfer and Storage v. PLCB, 559 Pa. 56 (1999), Franklin

Interiors v. Wall of Fame Mngmt. Co., Inc., 511 A.2d 761 (Pa. 1986). The cited terms of the

form contract delaying efficacy are merely conditions subsequent; the contract must be accepted

by an authorized representative of Plaintiff prior to any enforceable performance obligations on

Plainitff’s part. This construction comports with another basic tenet, that contracts are construed

as against the drafter in cases of ambiguity. SeeCentral Transportation Inc. v. Board of

Assessment Appeal of Cambria County, 417 A.2d 144 (Pa. 1980). Thus, Plaintiff’s claim that

the contracts were formed in Pennsylvania creating sufficient basis for specific jurisdiction must

fail. In sum, Plaintiff has cannot show sufficient basis for specific personal jurisdiction over the

‘Merchant Defendants.’

Plaintiff also attempts to assert specific jurisdiction over BCS by way of alleged tort

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 Plaintiff does no t even allege a ny tort claims ag ainst the Me rchant De fendants. 

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claims.2

 However, those claims are based on the action against the ‘Merchant Defendants’ and

must fail accordingly. Since the alleged contracts were not based in Pennsylvania, then neither

was the breach or the inducement to breach. Nor has defendant claimed other tortious behavior

implicating Pennsylvania. Furthermore, specific jurisdiction based on tort allegations requires

satisfaction of a three prong test:

First, the defendant must have committed an intentional tort. Second, the plaintiff must

have felt the brunt of the harm caused by that tort 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 the tort. Third,

the defendant must have expressly aimed his tortious conduct at the forum, such that the

forum can be said to be the focal point of the tortious activity.

Imo Indus., Inc. v. Kiekert, A.G., 155 F.3d 254, 260 (3d Cir. 1998), accord Gallant, 111 F.Supp.

2d at 644. Plaintiff has not satisfied, and cannot satisfy, these requirements.

First, the Amended Complaint’s ‘intentional tort’ claims include a 1) disparagement, 2)

misuse of confidential information, 3) and interference with contract or inducement to breach. 

However, these claims are not backed by sufficiently asserted facts, specifically: 1) Plaintiff

makes no assertion of what disparaging comments were made when, by whom and to whom, nor

how such statements resulted in damage; 2) Plaintiff makes no assertion as to how documents

allegedly taken were used, by whom, how Defendant BCS was put on notice of their

confidentiality, or whether their confidential nature was based on any writing, employment

contract or the like; 3) Plaintiff makes no allegation as to how Defendant BCS was responsible

for the alleged breaches of contract, the actions of Johe, or why such conduct was less than

privileged, especially where the Amended Complaint specifically states that Defendant BCS was

a business competitor.

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Second, even if Plaintiff’s Amended Complaint is deemed to have alleged “intentional

torts” against Defendant BCS, Plaintiff has not demonstrated that Plaintiff felt the brunt of the

harms allegedly caused by those tort in this forum rather than in its California market. Under

Calder v. Jones, 465 U.S. 783 (1984) and its line of cases, culminating in Imo at 264, the brunt of

the contracts formed and affecting a resident company’s business outside the forum are not

necessarily felt at the company’s in-forum principal place of business. The brunt of any of the

alleged torts in this case was felt in California, failing this requirement of the Imo test for specific

jurisdiction based on tort claims.

Finally, the acts or omissions of Defendant BCS, which Plaintiff seeks to challenge, took

place in California. Plaintiff cannot realistically claim that the “focal point” of those claimed

acts and omissions was Pennsylvania. See Gallant, 111 F.Supp.2d at 644; Harris v. Trans Union,

Civ. No. 01-5204 (E.D. Pa. Mar. 22, 2002) (dismissing “interference with contractual relations”

complaint against TXU Electric & Gas dismissed for lack of personal jurisdiction, where plaintiff

did not establish that TXU had “expressly aimed [its] tortious activity” at Pennsylvania so that

Pennsylvania was “the focal point of the [alleged] tortious activity”). Aiming the torts at the

Plaintiff is not a sufficient allegation under the ‘focal point’ test. The intentional tort must be

aimed at Pennsylvania. The Amended Complaint shows that the services provided by both

Defendant BCS and Plaintiff were provided in California, and that if Defendant BCS committed

intentional torts, they were aimed at California, and the Plaintiff’s share of the California ATM

market. The ‘focal point’ of the alleged torts was in California, specifically in the named

establishments in California. Plaintiff has thus failed to allege sufficient facts to satisfy all three

elements of the Imo test necessary to subject Defendant BCS to specific jurisdiction for tort

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claims in Pennsylvania.

Accordingly, neither general nor specific personal jurisdiction exists over any of the

defendants in this forum. As a result, Plaintiff’s Amended Complaint must be dismissed.

B. THIS ACTION SHOULD BE DISMISSED DUE TO IMPROPER VENUE;

IN THE ALTERNATIVE, THIS ACTION SHOULD BE TRANSFERRED

TO THE NORTHERN DISTRICT OF CALIFORNIA

This matter should be dismissed, or transferred to the Northern District of California,

based on improper venue, pursuant to 28 U.S.C. §1406 and 28 U.S.C. §1631. The grounds for

this Motion are discussed fully in Defendants’ original Motion to Dismiss and Strike Plaintiff’s

Complaint, filed on July 3, 2002, which is incorporated herein by reference.

The Amended Complaint does not allege sufficient new material to defeat the improper

venue claim, and in fact adds further support to Defendants’ position. Venue is improper in the

Eastern District of Pennsylvania because no Defendant resides in this forum; they all reside in

California, which provides sufficient venues in which this action could have been filed.

Further, Plaintiff’s Amended Complaint presents insufficient factual allegations for a

finding that substantial events giving rise to the suit occurred in this jurisdiction as required by

28 U.S.C. §1391(a)(2). Specifically, as discussed above, the Amended Complaint indicates that

the alleged contracts upon which this action is founded, were solicited, executed and formed in

California between Plaintiff’s agents and the ‘Merchant Defendants.’ Though they may have

been conditioned on subsequent confirmation in Plaintiff’s Pennsylvania headquarters, as

asserted by Plaintiff, the subsequent condition affected only the Plaintiff’s duty to perform, not

the location or time of agreement. See Shovel Transfer and Storage v. PLCB, 559 Pa. 56 (1999). 

Further, though some of Plaintiff’s duties were carried out “from” Pennsylvania, they could have

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been accomplished anywhere, the Amended Complaint shows that the physical manifestations of

those activities all took place in California. The Amended Complaint indicates that any alleged

breaches took place in California. Likewise, Plaintiff’s tort allegations indicate that the conduct

took place California. Finally, the economic benefits and harms asserted in this suit affect

California as would any remedies. Thus, Plaintiff’s factual allegations do not support venue

based on substantial events giving rise to the cause of action.

In sum, Plaintiff has not asserted that substantial events giving rise to the suit occurred in

Pennsylvania or that any defendant is subject to jurisdiction in this forum. Therefore, Defendants

requests that the Court dismiss the action or transfer it to a proper venue, the Northern District of

California.

C. MOTION FOR MORE DEFINITE STATEMENT

Plaintiff’s Amended Complaint is vague and ambiguous such that Defendants cannot

reasonably frame a responsive pleading in a number of respects. The deficiencies in plaintiff’s

Complaint have not been rectified in the Amended filing.

1. In violation of Eastern District of Pennsylvania Rule 5.1.1, Plaintiff’s Amended

Complaint fails to plead or allege a jurisdictional amount in controversy with respect to asserted

claims against Defendant BCS, including but not limited to the amounts Plaintiff demands in

compensatory damages, punitive damages, attorney fees or other amounts.

2. Count I of Plaintiff’s Amended Complaint fails to plead or allege the basis for the

amounts in controversy claimed of the ‘Merchant Defendants’ with sufficient specificity, simply

calling for a monetary award with no factual basis. See Amended Complaint ¶ 86.

3. Count II of Plaintiff’s Amended Complaint fails to plead or allege the basis for the

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claiming unjust enrichment on the part of the ‘Merchant Defendants’ since the ATM services

have allegedly been taken over by others and are no longer being supplied by Plaintiff.

4. Count V of Plaintiff’s Amended Complaint fails to plead or allege the relief

implied by ¶¶ 114 and 115, then sets forth claims for legal relief without specifying a basis for

the claimed relief.

5. Plaintiff’s Amended Complaint does not plead or allege any factual or legal basis

for the claim that the purported contracts attached to Amended Complaint were executed in the

Commonwealth of Pennsylvania; rather, as outlined above, the Amended Complaint supports the

opposite conclusion, that each ‘Merchant Defendant’ executed an alleged agreement in California

conditioned on the subsequent acceptance or approval of Plaintiff’s headquarters, wherever they

were located; and that Plaintiff offered the alleged contracts, and entered into said agreements,

through its agent in California. See Amended Complaint ¶ 98.

6. Plaintiff’s Complaint does not plead whether Counts III, IV, V and VI of the

Amended Complaint, purporting to assert claims against defendant BCS, are based on any

writings. Plaintiff’s Amended Complaint neither alleges nor attaches any such writings.

7. Plaintiff’s Complaint does not plead whether Count IV of the Amended

Complaint, purporting to assert claims against defendant BCS, is based on any writings or

statements or reports from individual witnesses. Plaintiff’s Amended Complaint neither alleges

nor attaches any such writings or statements or reports.

8. Plaintiff’s Amended Complaint fails to allege whether Counts III and V, claiming

breach of purported obligations by BCS with respect to claimed “confidential information,” are

based on any agreements between Mr. Johe and Plaintiff, whether oral or written, or indeed

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whether the allegations contained in Counts III and V are based on any writings whatsoever. 

Plaintiff’s Amended Complaint neither alleges nor attaches any such writings.

9. Plaintiff’s Amended Complaint does not state or specify whether Plaintiff alleges

any liability between or among any separate defendants is alleged to be joint liability as opposed

to several liability.

10. Plaintiff’s Amended Complaint does not state, set forth or allege with adequate or

sufficient specificity the factual and legal grounds for its claims for injunctive relief against

Defendant BCS, including Plaintiff’s claims for such relief in Counts III, IV and VI of Plaintiff’s

Amended Complaint. By way of example, and without limitation, Plaintiff does not state, set

forth or allege with sufficient specificity (a) the facts, reasons and legal basis that any remedy at

law is allegedly inadequate, or (b) the facts, reasons and legal basis for any claim of irreparable

harm.

11. Plaintiff’s Amended Complaint, with respect to punitive damages, including

Plaintiff’s allegations with respect thereto in Counts IV, V and VI, does not state or set forth

Plaintiff’s factual and legal basis for its demands for punitive damages with sufficient specificity.

12. Plaintiff’s Amended Complaint with respect to attorneys’ fees against Defendant

BCS, including Plaintiff’s allegations with respect thereto in Counts IV, V and VI, does not set

forth Plaintiff’s factual and legal basis for its demands with sufficient specificity.

Accordingly, Plaintiff’s Amended Complaint should be stricken pursuant to F.R.C.P.

12(f) or the Plaintiff should be ordered to file another Amended Complaint addressing these

defects pursuant to F.R.C.P. 12(e).

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CONCLUSION

For all of the foregoing reasons, this action should be dismissed and Plaintiff’s Amended

Complaint should be stricken. In the alternative, Plaintiff’s Amended Complaint, and this action,

should be transferred to the District Court for the Northern District of California.

Respectfully submitted,

The Law Firm David Oh, P.C.

_________________________

By: David H. Oh, Esquire

Attorneys for Defendants

Dated: September 9, 2002

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