2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-20-2004

Miller Yacht Sales v. Smith

Precedential or Non-Precedential: Precedential

Docket No. 02-3304

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

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 2004 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Miller Yacht Sales v. Smith" (2004). 2004 Decisions. Paper 277.

http://digitalcommons.law.villanova.edu/thirdcircuit_2004/277
PRECEDENTIAL

THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

___________

No. 02-3304

___________

MILLER YACHT SALES, INC.,

 Appellant

v.

STEVEN SMITH, individually;

MARINER YACHT SALES, INC.;

IVAN BOGACHOFF, individually;

ISLAND YACHT BROKERS;

ABC CORPORATIONS 1-10, 

names being fictitious;

JOHN DOES, (1-10),

names being fictitious

___________

APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR THE

DISTRICT OF NEW JERSEY

(D.C. No. 02-cv-00402)

District Judge: The Honorable Anne E.

Thompson

___________

ARGUED OCTOBER 28, 2003

BEFORE: SCIRICA, Chief Judge, 

NYGAARD, and AMBRO, 

Circuit Judges.

(Filed September 20, 2004)

___________

Chryssa Yaccarino, Esq. (Argued)

Villani & DeLuca

703 Richmond Avenue

Point Pleasant Beach, NJ 08742

Counsel for Appellant

Ivan Bogachoff, Esq. (Argued)

Bogachoff & Associates

4500 New Hampshire Avenue, NW

Suite B

Washington, DC 20011

Counsel for Appellees

___________

OPINION OF THE COURT

___________

NYGAARD, Circuit Judge.

The District Court dismissed Miller

Yacht Sales’ suit for trade-dress

infringement, statutory and common law

unf air competition, and tortious

interference with prospective economic

advantage, because it concluded that it

lacked personal jurisdiction over

Appellees. Because we conclude that

Appellees have sufficient contacts with

New Jersey, we will reverse.

I.

To defeat Appellee’s motion to dismiss

for lack of personal jurisdiction, Miller

Yacht was required to present a prima

facie case that jurisdiction existed. Mellon

Bank (East) PSFS Nat’l Ass’n v. Farino,

960 F.2d 1217, 1223 (3d Cir. 1992). 

Miller Yacht is a New Jersey corporation

with its principal offices in South Toms

River, New Jersey. Miller Yacht designs,
2

manufactures, markets and sells boats.

Specific to this action, Miller Yacht has

designed, manufactured, marketed and

sold 34' and 38' Marine Trader Double

Cabin and Sedan Yachts. 

Appellees also sell and market boats,

but are not New Jersey residents or

corporations. Beginning in 1998, Miller

Yacht and Appellees began negotiating a

deal that was intended to allow the

Appellees to become exclusive marketing

representatives and dealers for some of

Miller Yacht’s boats, including the Marine

Trader Yachts.1 During these

1.Appellees stress their argument that

they were each acting in their individual

corporate or personal capacities and that

their contacts with New Jersey should be

analyzed separately. While they are

correct that, in general, a court must

analyze questions of personal jurisdiction

on a defendant-specific and claimspecific basis, Calder v. Jones,

Appellees’ reliance on this general rule

ignores substantial portions of Miller

Yacht’s allegations and the evidence

submitted to support those allegations. 

465 U.S. 783, 790 (1984). Miller Yacht

alleges that Steven Smith and Ivan

Bogachoff were acting as partners while

they negotiated with Miller Yacht. In its

complaint, Miller Yacht alleges,

“Defendant Ivan Bogachoff . . . was a

partner with Steven Smith and at all

relevant times hereto and, upon

information and belief, had express,

implied, and/or apparent authority to

(continued...)

1.(...continued)

engage in transactions on behalf of

Steven Smith and himself, individually,

for the purpose of entering into a

business agreement wherein Bogachoff

would become a broker dealer, along

with his partner, of Marine Trader

yachts.” Appellant’s App. at 13

(emphasis added). This allegation is

supported by Donald Miller’s affidavit in

which he states that Smith and

Bogachoff acted together during relevant

negotiations and that on a particular

occasion in February, 2000 “[Miller]

personally saw Defendants Smith and

Bogachoff working in a [boat show]

booth soliciting New Jersey Customers. 

There, [Miller] was introduced to

Defendant Bogachoff as the partner of

Defendant Smith.” Appellant’s App. at

48.

Miller Yacht has alleged that

Bogachoff and Smith were partners and

that they were each also representing one

of the appellee companies and has

supported these allegations with a sworn

affidavit. We view these allegations and

their supporting evidence in a light most

favorable to Miller Yacht and, therefore,

infer a partnership between Bogachoff

and Smith. See Pinker v. Roche

Holdings LTD, 292 F.3d 361, 368 (3d

Cir. 2002) (holding that in ruling on a

Rule 12(b)(2) motion we must accept all

of the plaintiff’s allegations as true and

construct disputed facts in favor of the

plaintiff.) We disagree with Appellees

(continued...)
3

negotiations, Appellees made phone calls

from their offices outside New Jersey to

Miller Yacht’s offices in New Jersey.

Additionally, Appellees transmitted

facsimiles into New Jersey, including

proposed licensing agreements for the

trade names relevant to the negotiations.

Appellees also traveled to Miller Yacht’s

offices in New Jersey. During one of these

trips, Donald Miller, the president of

Miller Yacht, provided Steven Smith with

a copy of Miller Yacht’s sales brochure. 

That brochure included photographs and

floor plans of the Marine Trader Yachts.

Miller Yacht also alleges that it arranged

and paid for Smith to travel to China to

observe the manufacturing process for the

Marine Trader Yachts and meet Miller

Yacht’s business contacts relevant to those

yachts. Miller Yacht claims that Appellees

sent facsimile transmissions to Donald

Miller as part of the planning activities for

Smith’s trip to China.

Eventually, the negotiations between

the parties reached a standstill and they

failed to reach an agreement. Miller Yacht

alleges that Appellees misappropriated the

photographs and floor plans contained in

Miller Yacht’s sales brochure, as well as

otherintellectual property owned by Miller

Yacht, and used it to produce and market

boats that are identical to the Marine

Trader Yachts. It further alleges that

Appellees engaged Miller Yacht’s

business contacts in China to manufacture

the boats, and thereby interfered with

Miller Yacht’s business relationship with

those contacts.

Based on these allegations, Miller

Yacht sued Appellees for trade-dress

infringement, statutory and common law

unf air competition, and tortious

interference with prospective economic

advantage. Appellees moved to dismiss

Miller Yacht’s complaint based on lack of

personal jurisdiction and improper venue.

The District Court, without holding an

evidentiary hearing, granted Appellees’

motions to dismiss for lack of personal

jurisdiction. This appeal followed.

II.

The District Court had subject matter

jurisdiction over this action under 28

U.S.C. §§ 1331, 1332 and 1367. We have

appellate jurisdiction over the District

Court’s final order under 28 U.S.C. § 1291

and review the District Court’s decision de

novo. Pinker, 292 F.3d at 368. 

A federal court sitting in New Jersey

has jurisdiction over parties to the extent

provided under New Jersey state law. See

Fed. R. Civ. P. 4(e); see also Carteret, 954

F.2d at 144. New Jersey’s long-arm

1.(...continued)

that these allegations and affidavits fall

short of alleging a relationship between

the parties from which we must attribute

the contact of any one individual

Appellee to all of the Appellees. 

Carteret Sav. Bank, F.A. v. Shushan, 954

F.2d 141, 145 n.6 (3d Cir. 1992)

(observing that “[a] partnership and each

partner is held liable for the act of every

other partner, executed in the usual way

of carrying on the business of the

partnership”).
4

statute provides for jurisdiction coextensive with the due process

requirements of the United States

Constitution. N.J. Court Rule 4:4-4(c); see

Charles Gendler & Co. v. Telecom Equip.

Corp., 508 A.2d 1127, 1131 (N.J. 1986).

Thus, parties who have constitutionally

sufficient “minimum contacts” with New

Jersey are subject to suit there. See

Carteret, 954 F.2d at 149. 

Miller Yacht claims that the District

Court had specific jurisdiction over

Appellees based on their contacts with

New Jersey.2 Miller Yacht concedes that

Appellees do not have the “consistent and

systematic” contacts with New Jersey that

would subject them to general jurisdiction

in that forum. See Pinker, 292 F.3d at 368

n.1.

In analyzing Miller Yacht’s specific

jurisdiction argument, we must “examine

the relationship among the [Appellees], the

forum, and the litigation.” Id. at 368.

Specific jurisdiction over a defendant

exists when tha t defendan t has

“purposefully directed his activities at

residents of the forum and the litigation

results from alleged injuries that arise out

of or relate to those activities.” Burger

King Corp. v. Rudzewicz, 471 U.S. 462,

472 (1985) (internal quotations and

citation omitted). A single contact that

creates a substantial connection with the

forum can be sufficient to support the

exercise of personal jurisdiction over a

defendant. Id. at 475 n.18. 

If these “purposeful availment” and

“relationship” requirements are met, a

court may exercise personal jurisdiction

over a defendant so long as the exercise of

that jurisdiction “comport[s] with fair play

and substantial justice.” Id. at 476

(internal quotations and citations omitted).

To defeat jurisdiction based on this

fairness inquiry, a defendant must “present

a compelling case that the presence of

some other considerations would render

jurisdiction unreasonable.” Id. at 477.

The Supreme Court has indicated that

lower courts addressing the fairness

question may consider “the burden on the

defendant, the forum State’s interest in

adjudicating the dispute, the plaintiff’s

interest in obtaining the most efficient

resolution of controversies, and the shared

interest of the several States in furthering

fundamental substantive social policies.”

Id. (internal quotations omitted).

To survive a motion to dismiss for lack

of personal jurisdiction, a plaintiff bears

the burden of establishing the court’s

2.Miller Yacht also alleges Appellees

were subject to personal jurisdiction

under the “effects test.” See Calder, 465

U.S. at 789. Under that test, a party is

subject to personal jurisdiction in a state

when his or her tortious actions were

intentionally directed at that state and

those actions caused harm in that state. 

Because we find that Appellees have

sufficient contacts with New Jersey

under the more traditional personal

jurisdiction analysis, we need not reach

the question of whether the appellees

would also be subject to jurisdiction

under the effects test.
5

jurisdiction over the moving defendants.

Pinker, 292 F.3d at 368. However, when

the court does not hold an evidentiary

hearing on the motion to dismiss, the

plaintiff need only establish a prima facie

case of personal jurisdiction and the

plaintiff is entitled to have its allegations

taken as true and all factual disputes drawn

in its favor. Id.; see also Carteret, 954

F.2d at 142 n.1. 

The District Court did not hold an

evidentiary hearing but did determine,

based on the parties’ submissions and

arguments, that Miller Yacht failed to

satisfy its burden because the contacts it

presented did not show that Appellees

purposefully availed themselves of New

Jersey’s laws. We disagree based on three

important contacts and the context of those

contacts.

III.

A.

Trade-dress Infringement and Unfair

Competition Claims

First, Miller Yacht alleges that

Appellees made trips to New Jersey as part

of their negotiations. Miller Yacht claims

that during one of these trips Smith came

to New Jersey and received Miller Yacht’s

sales brochure. The receipt of this sales

brochure was Appellees’ first step toward

the misappropriation of Miller Yacht’s

trade-dress, photos and floor plans. This

misappropriation is not only related, but is

essential, to Miller Yacht’s unfair

competition and trade-dress infringement

claims. Thus, Appellees came to New

Jersey allegedly to receive the property

that they eventually misappropriated and

used to injure Miller Yacht.

Second, Miller Yacht alleges Appellees

placed the misappropriated photos and

floor plans in advertisements in boating

magazines circulated in New Jersey and in

at least one brochure that was sent directly

to a potential customer in New Jersey.

Intentionally and directly transmitting the

misappropriated property that Appellees

initially obtained in New Jersey back into

New Jersey is a very strong contact

between them and the State. It is also a

second essential element of Miller Yacht’s

infringement and unfair competition

claims.3

Miller Yacht also alleges that, at least

before Appellees misappropriated its

intellectual property, Appellees were

3.There is no question that this contact is

sufficient to subject Island Yacht Brokers

and Mariner Yacht Sales to jurisdiction

in New Jersey. We attribute this contact

to Appellees because Miller Yacht

specifically alleged that Steven Smith

was the individual responsible for Island

Yacht Brokers’ “‘[advertising and

brochure producing] efforts and

activities’” Appellants’ App. at 41

(quoting affidavit of Steven Smith)

(brackets in original). As described in

footnote 1, Miller Yacht has also alleged

that Smith and Bogachoff were acting as

partners during all relevant periods. We

accept these allegations as true and,

therefore, attribute this contact to all

Appellees.
6

directly engaged in the marketing of boats

in New Jersey. They attended trade shows

in New Jersey and adjoining states and

advertised in regional boating magazines

that were distributed in New Jersey. These

pre-misappropriation contacts and the

continued advertisements in New Jersey

provide a nexus between Appellees and

New Jersey, and logically explain why at

least one New Jersey resident would

request Appellees’ sales brochure. While

we do not base our holding on these premisappropriation contacts (they are not

among the three contacts on which we

rely), they are relevant to show that the

request for sales material that Appellees

received from a New Jersey resident was

not a random or fortuitous occurrence

upon which jurisdiction may not properly

lie. See World-Wide Volkswagen Corp. v.

Woodson, 444 U.S. 286, 295-99 (1980)

(holding that one fortuitous act connecting

a defendant with a state with which it has

no other ties is not sufficient to support the

exercise of personal jurisdiction over that

defendant in that state).

The contacts alleged by Miller Yacht

are sufficient to satisfy the “purposeful

availment” and “relatedness” requirements

of due process with respect to Miller

Yacht’s trade-dress infringement and

unfair competition claims.

B.

Tortious Interference Claim

Miller Yacht also alleges that

Appellees had substantial and repeated

contact with New Jersey during the

negotiations between the parties.

Although these negotiations are only

indirectly related to Miller Yacht’s tradedress infringement and unfair competition

claims, they are directly related to its

tortious interference claim and are the

third contact upon which we rely. Miller

Yacht specifically alleges that Appellees

sent facsimile transmissions into New

Jersey in order to arrange for Smith to

travel to China to visit the Chinese

companies that manufactured the Marine

Trader Yachts for Miller Yacht. Miller

Yacht further alleges that, subsequent to

this trip, Appellees unlawfully engaged

these Chinese companies to produce

“strikingly similar yachts . . . according to

the interior and exterior plans and

specifications owned by [Miller Yacht],

using the molds used to construct said

yachts.” Appellant’s App. at 28. Miller

Yacht alleges that Appellees’ engagement

of these companies to produce the

“strikingly similar” yachts interfered with

Miller Yacht’s prospective economic

advantage flowing from its own

relationship with these companies. 

We conclude that Appellees’ contacts

with New Jersey in setting up their trip to

China, coupled with the contacts we found

sufficient to support the exercise of

personal jurisdiction over Appellees on

Miller Yacht’s other claims, are sufficient

to support the exercise of jurisdiction on

the tortious interference with prospective

economic advantage claim as well.

We disagree with the argument that

these contacts do not support jurisdiction

over this claim. First, we do not agree that

we must apply an immediate or proximate
7

cause standard to determine whether a

claim arises out of a defendant’s contacts

with a forum state and we do not read

Pinker, Vetrotex Certainteed Corp. v.

Consolidated Fiber Glass Products Co.,

75 F.3d 147 (3d Cir. 1996), or Remick v.

Manfredy, 238 F.3d 248, 255-56 (3d Cir.

2001), as standing for such a proposition.

 In Pinker, we had to determine whether a

foreign issuer and sponsor of American

Depositary Receipts (“ADRs”) was subject

to personal jurisdiction in this country on

claims that it misrepresented material facts

relevant to those ADRs.4 We concluded

that because the foreign issuer

“sponsor[ed] an ADR facility [in America,

it] purposely availed itself of the privilege

of conducting activities in the American

securities market, and thereby established

the requisite minimum contacts with the

United States.” Pinker, 292 F.3d at 371

(internal quotation omitted). Importantly,

we did not apply a proximate cause test to

determine personal jurisdiction. Instead,

based solely on the def endant’s

sponsorship of the ADR facility at issue,

an action that was certainly not the

proximate cause of the fraudulent

misrepresentation, we found that the

defendant had the requisite minimum

contacts to establish jurisdiction with

regard to the plaintiff’s claims. Id.

Vetrotex involved contract claims and

“there are different considerations in

analyzing jurisdiction over contract claims

and over certain tort claims.” Remick, 238

F.3d at 255-56. Further, in contract claims

we analyze the totality of the

circumstances surrounding a contract to

determine whether the exercise of

jurisdiction over the defendant is proper.

Id. at 256. We do not consider this

totality of the circumstances test to be the

equivalent of a requirement that the

defendants’ contacts with the forum be the

proximate cause of the plaintiff’s claims.

Remick also does not support a

proximate cause standard. Remick was a

breach of contract case, but involved

various tort claims as well. Id. at 256.

With respect to those tort claims, we

applied the effects test to determine if the

defendant was subject to jurisdiction in

Pennsylvania. Id. at 258. Similarly, in

IMO Industries, Inc. v. Kiekert AG, we

applied the effects test to analyze whether

the defendant was subject to jurisdiction in

New Jersey on the plaintiff’s intentional

tort claims. 155 F.3d 254, 265-66 (3d Cir.

1998). The focus on the effects test in

both these cases convinces us that their

requirement that the tortious actions of the

defendant have a forum-directed purpose

is not applicable in the more traditional

specific jurisdiction analysis. As pointed

out in Note 2 supra, the effects test

expressly requires that “the defendant

expressly aimed its tortious conduct at the

forum, and thereby made the forum the

4.In Pinker, the Court was confronted

with a statute that authorized nationwide

service of process and, therefore, needed

to determine if the defendant had

sufficient contacts with the United States

to support jurisdiction. Pinker, 292 F.2d

at 369.
8

focal point of the tortious activity.” Id. at

265. This requirement is reasonable

within the effects test because it insures

that the defendant, who may not have any

actual contact with the forum state, have

sufficiently directed his tortious conduct at

the state to render him subject to personal

jurisdiction there. See id. at 265. Unlike

this express requirement in the effects test,

the traditional specific jurisdiction analysis

simply requires that the plaintiff’s claims

“arise out of or relate to” the defendant’s

forum contacts. Burger King, 471 U.S. at

472 (internal quotations omitted). We do

not agree with the argument that this

traditional requirement is the equivalent of

the more demanding relatedness

requirement of the effects test.

We recognize that our conclusion that

a defendant’s contacts with a forum need

not have been the proximate cause of the

plaintiff’s injuries in a tort case begs the

question of what level of relationship is

necessary under the “arise out of or relate

to” requirement. We need not address this

question that has plagued federal Courts of

Appeals and has resulted in divergent

rules. We have not laid down a specific

rule because we have approached each

case individually and taken a “realistic

approach” to analyzing a defendant’s

contacts with a forum. Mellon Bank (East)

PSFS, Nat’l Ass’n v. Farino, 960 F.2d

1217, 1223 (3d Cir. 1992)(internal

quotation omitted); see also Pennzoil

Prods. Co. v. Colelli & Assocs. Inc., 149

F.3d 197 , 203 (3d Cir. 1998)

(acknowledging the difficu lty of

formulating bright-line rules in the

personal jurisdiction analysis and

indicating the fact-sensitive nature of that

analysis). 

This is the approach we take here, and

conclude that Appellees’ contacts with

New Jersey are sufficient to subject them

to jurisdiction on Miller Yacht’s tortious

interference claim. First, Miller Yacht

alle ges that Appel lees s e n t

communications into New Jersey in order

to set up their trip to China. We have been

clear that such communications may be

factored into the minimum contacts

analysis. Grand Entm’t Group, Ltd. v.

Star Media Sales, Inc., 988 F.2d 476, 482-

83 (3d Cir. 1993). Second, we cannot

ignore the fact that Miller Yacht alleges

Appellees’ tortious interference resulted

from their engaging the Chinese

companies to build the very boats that

Miller Yacht alleges Appellees are using

misappropriated photos and floor plans to

advertise. As described above, those

photos and floor plans were obtained in

New Jersey and were sent back into New

Jersey, after having been misappropriated,

as part of Appellees’ sales efforts. It is

only in selling the boats that Miller Yacht

or Appellees could expect to get any kind

of economic advantage from the building

agreement with the Chinese companies.

Thus, these sales efforts, and their New

Jersey-related activities, are vital parts of

Miller Yacht’stortious interference claims.

The sum of these contacts is sufficient to

subject Appellees to personal jurisdiction

in New Jersey on Miller Yacht’s tortious

interference claim.
9

III.

We easily conclude that jurisdiction

over Appellees is consistent with

traditional notions of fair play and

substantial justice. There is no compelling

evidence of record why it would be unfair

or unjust for Appellees to litigate this

dispute in New Jersey. Without such

compelling evidence, they cannot avoid

the District Court’s appropriate

jurisdiction.

For these reasons, we will reverse the

District Court’s order dismissing Miller

Yacht’s complaint and remand the case to

the District Court.

SCIRICA, Chief Judge, concurring in part,

dissenting in part.

I write separately because I would find

specific jurisdiction only as to Miller

Yacht’s unfair competition and trade dress

infringement claims against appellees

Island Yacht and Mariner Yacht.

Nevertheless, because appellant’s claims

sound in tort, I would remand for the

District Court to consider appellees’ forum

contacts under the “effects test.” See IMO

Indus., Inc. v. Kiekert AG, 155 F.3d 254,

265-66 (3d Cir. 1998).

I.

Personal jurisdiction over a nonresident defendant may be asserted under

general or specific theories of jurisdiction.

See Helicopteros Nacionales de Colombia,

S.A. v. Hall, 466 U.S. 408, 414 & n.9

(1984). Because there are no allegations

that appellees’ contacts with the forum are

so “continuous and systematic” as to give

rise to general jurisdiction, our inquiry is

limited to specific jurisdiction. Specific

jurisdiction permits the exercise of

personal jurisdiction over non-resident

defendant only if the plaintiff’s claims

“arise out of or relate to” the defendant’s

forum contacts. Burger King Corp. v.

Rudzewicz, 471 U.S. 462, 472 (1985).

Consequently, the specific jurisdiction

determination is both claim-specific, see

Remick v. Manfredy, 238 F.3d 248, 255-56

(3d Cir. 2001) (analyzing specific

jurisdiction over tort and contract claims

separately); Gehling v. St. George’s Sch. of

Med., Ltd., 773 F.2d 539, 543-44 (3d Cir.

1985) (finding personal jurisdiction over

fraudulent misrepresentation and

emotional distress claims, but not

negligence and breach of contract claims),

and defendant-specific, see Rusk v.

Savchuk, 444 U.S. 320, 332 (1980) (“The

requirements of International Shoe . . .

must be met as to each defendant.”).5

5.Due process requires that non-resident

defendants have “minimum contacts”

with the forum such that the exercise of

personal jurisdiction does not offend

“traditional notions of fair play and

substantial justice.” International Shoe

Co. v. Washington, 326 U.S. 310, 316

(1945) (citing Milliken v. Meyer, 311

U.S. 457, 463 (1940)). The defendant’s

contacts with the forum state must have a

basis in some act by which the defendant

(continued...)
10

II.

While acknowledging the claim- and

defendant-specific nature of the specific

jurisdiction inquiry, the majority concludes

the allegations in the complaint require us

to attribute the forum contacts of “any one

individual Appellee to all of the

Appellees.” The majority reaches this

conclusion by inferring the existence of a

“partnership” based upon Miller Yacht’s

allegations that Smith and Bogachoff

“act[ed] as partners” in their negotiations

with Miller Yacht, in which they

represented Island Yacht and Mariner

Yacht, respectively. Although we accept

all allegations in the complaint as true and

construe all disputed facts in favor of the

plaintiff on a motion to dismiss under Fed.

R. Civ. Pro. 12(b)(2), I do not believe it is

reasonable to infer the appellees engaged

in a “partnership.”6

There is no averment in the complaint

or in the supporting affidavits that

appellees—two non-resident persons and

two out-of-state corpora tions—ar e

collectively organized as a partnership. As

I read the complaint, the allegation that

Smith and Bogachoff “act[ed] as partners”

5.(...continued)

“purposefully avails itself of the

privilege of conducting activities within

the forum State, thus invoking the

benefits and protections of its laws.” 

Hansen v. Denckla, 357 U.S. 235, 253

(1958). The “minimum contacts”

analysis assesses the “relationship among

the defendant, the forum, and the

litigation.” Shaffer v. Heitner, 433 U.S.

186, 204 (1977).

6.In acknowledging the procedural

distinctions between a Rule 12(b)(6)

motion and a Rule 12(b)(2) motion, we

have explained:

(continued...)

6.(...continued)

A Rule 12(b)(2) motion . . .

is inherently a matter

which requires resolution

of factual issues outside the

pleadings, i.e. whether in

personam jurisdiction

actually lies. Once the

defense has been raised,

then the plaintiff must

sustain its burden of proof

in establishing

jurisdictional facts through

sworn affidavits or other

competent evidence. . . .

[A]t no point may a

plaintiff rely on the bare

pleadings alone in order to

withstand a defendant’s

Rule 12(b)(2) motion to

dismiss for lack of in

personam jurisdiction. 

Once the motion is made,

plaintiff must respond with

actual proofs, not mere

allegations.

Patterson v. FBI, 893 F.2d 595, 603-604

(3d Cir. 1990) (citing Time Share

Vacation Club v. Atlantic Resorts, Ltd.,

735 F.2d 61, 67 n.9 (3d Cir. 1984))

(internal citations omitted). 
11

merely suggests some level of coordinated

conduct.7 Of course, this relationship

ultimately may prove relevant to the

jurisdictional analysis. See Rusk, 444 U.S.

at 332 (“[T]he parties’ relationships with

each other may be significant in evaluating

their ties to the forum.”). But on the

allegations and affidavits presented, I

cannot infer the existence of a partnership

that would provide the basis for attributing

the jurisdictional contacts of one appellee

to them all.8 

Aggregating appellees’ contacts

obscures important differences in their

individual forum activities and the alleged

conduct giving rise to the claims asserted.

For example, Smith’s contacts with New

Jersey in arranging his trip to China did

not involve Bogachoff or Mariner Yacht.

Moreover, as Miller Yacht’s affidavit

states, the China trip itself “was in

furtherance of negotiations that took place

between . . . Smith, Island Yacht Brokers

and Miller Yacht” relating to Island Yacht

becoming an exclusive dealer of “Marine

Trader” and “Trade Wind” yachts in

Maryland. Appellant App. 41. These

negotiations did not involve Bogachoff or

Mariner Yacht. Similarly, the primary

forum contact relied upon by the

majority—receipt of the Miller Yacht sales

brochure in New Jersey—is apparently

attributable only to Smith in his capacity as

agent for Island Yacht. Even assuming

Bogachoff had implied authority to act as

Smith’s agent during the broker-dealer

7.The allegations do support an inference

that Smith and Bogachoff acted as agents

for Island Yacht Brokers and Mariner

Trader respectively, and their forum

contacts as agents may be attributed to

the appellee corporations accordingly. 

Grand Entm’t Group v. Star Media

Sales, Inc., 988 F.2d 476, 483 (3d Cir.

1993) (“[A]ctivities of a party’s agent

may count toward the minimum contacts

necessary to support jurisdiction.”).

8.Some courts have imputed jurisdictional

contacts to foreign defendants in the

absence of a partnership or other legal

entity based upon the conspiracy theory

of jurisdiction. See, e.g., Jungquist v.

Sheikh Sultan Bin Khalifa Al Nahyan,

115 F.3d 1020, 1031 (D.C. Cir. 1997)

(recognizing that the conspiracy theory

of personal jurisdiction requires plaintiff

to plead with particularity “the

conspiracy as well as the overt acts

within the forum taken in furtherance of

the conspiracy”) (citation omitted);

Textor v. Bd. of Regents, 711 F.2d 1387,

(continued...)

8.(...continued)

1392-93 (7th Cir. 1983) (applying

conspiracy theory of jurisdiction to

Illinois long-arm statute). That said,

“[w]hether personal jurisdiction can be

obtained under a state long-arm statute

on a conspiracy rationale at all is a

question of state law.” Stauffacher v.

Bennett, 969 F.2d 455, 460 (7th Cir.

1992). While it is unclear whether New

Jersey even recognizes the conspiracy

theory of jurisdiction, we need not

address this issue because Miller Yacht

has not alleged an actionable conspiracy.
12

negotiations with Miller Yacht, this agency

relationship should not provide a basis for

imputing forum contacts by Smith to

Bogachoff or Mariner Yacht.

I recognize the Supreme Court has

rejected overly “mec hanic al o r

quantitative” tests of jurisdiction. Int’l

Shoe, 326 U.S. at 319. But even a realistic

approach to specific jurisdiction must

comport with due process, and due process

requires that we consider the forum

contacts of each defendant independently

according to the specific claims asserted.

III.

Even if the alleged forum-related

contacts could be attributed to all appellees

en masse, Miller Yacht’s claims do not

necessarily “arise out of or relate to” those

contacts. See Burger King, 471 U.S. at

472. The courts of appeals have adopted

divergent interpretations of “arise out of or

relate to” as that phrase relates to the

specific jurisdiction analysis. See United

Elec. Radio & Mach. Workers of Am. v.

163 Pleasant St. Corp., 960 F.2d 1080,

1089 (1st Cir. 1992) (describing

uncertainty among the circuits); see

generally Mark M. Maloney, Specific

Personal Jurisdiction and the “Arise from

or Relate to” Requirement...What Does It

Mean?, 50 Wash. & Lee L. Rev. 1265

(Summer 1993). The distinctions between

these interpretations are not without

constitutional significance, as the “arise

out of or relate to” requirement establishes

a due process limitation on the degree of

permissible attenuation between “the

defendant, the forum, and the litigation.”

Shaffer, 433 U.S. at 204.

At one end of the spectrum, the Court

of Appeals for the First Circuit has held

that with respect to a tort claim, a nonresident defendant’s forum contacts must

provide the “cause in fact” and “legal

cause” for the plaintiff’s injury. Mass.

Sch. of Law, Inc. v. Am. Bar Assoc., 142

F.3d 26, 35 (1st Cir. 1998); see also

Marine v. Hyatt Corp., 793 F.2d 427, 430

(1st Cir. 1986) (holding that forum-related

contacts must form a “material element of

proof” in order for the cause of action to

“arise from or relate to” the forum

contacts). At the other end of the

spectrum, the Courts of Appeals for the

Fifth and Ninth Circuits formulate a more

expansive interpretation of “arise out of or

relate to,” under which a non-resident

defendant’s forum contacts are sufficient if

they provide a “but for” cause for

plaintiff’s injury. See Prejean v.

Sonatrach, Inc., 652 F.2d 1260, 1270 n.21

(5th Cir. 1981) (noting that “contractual

contacts” may provide “but for” causation

for a claim sounding in tort); Doe v. Am.

Nat’l Red Cross, 112 F.3d 1048, 1051 n.7

(9th Cir. 1997) (“[T]he ‘but for’ test is still

employed in determining whether a

plaintiff’s injuries arose out of a

defendant’s forum-related activities.”).

Under this standard, a plaintiff’s claim

“arises out of or relates to” a foreign

defendant’s contacts with the forum if the

defendant’s forum activities provide a link

in the causal chain which ultimately leads

to plaintiff’s injury.
13

Still other courts have navigated a

course between these positions. For

example, in Chew v. Dietrich, 143 F.3d 24

(2d Cir. 1998), the Court of Appeals for

Second Circuit has suggested a sliding

scale approach to evaluating the

“relatedness” of specific jurisdiction

contacts, which more closely resembles the

“but for” standard in its potentially

expansive scope:

[T]he relatedness test is but a part

of a general inquiry which is

designed to determine whether the

exercise of personal jurisdiction in

a particular case does or does not

offend “traditional notions of fair

play and substantial justice.” . . .

Where the defendant has had only

limited contacts with the state it

may be appropriate to say that he

will be subject to suit in that state

only if the plaintiff’s injury was

proximately caused by those

contacts. Where the defendant’s

contacts with the jurisdiction that

relate to the cause of action are

more substantial, however, it is not

unreasonable to say that the

defendant is subject to personal

jurisdiction even though the acts

within the state are not the

proximate cause of the plaintiff’s

injury.

143 F.3d at 29 (citations omitted).

By contrast, the Court of Appeals for

the Seventh Circuit has rejected this sort of

“hybrid” jurisdictional analysis which

effectively blends the concepts of general

and specific jurisdiction:

We cannot simply aggregate all of

a defendant’s contacts with a

state—no matter how dissimilar in

terms of geography, time, or

substance—as evidence of the

constitutionally required minimum

contacts . . . [W]hen conducting

business with a forum in one

context, potential defendants

should not have to wonder whether

some aggregation of other past and

future forum contacts will render

them liable to suit there. Unless

their contacts are continuous and

systematic enough to rise to the

level of general jurisdiction,

individuals and corporations must

be able to conduct interstate

business confident that transactions

in one context will not come back

to haunt them unexpectedly in

another.

RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d

1272, 1277 (7th Cir. 1997) (citations

omitted). The Supreme Court has yet to

definitively resolve the appropriate scope

of the “arise out of or relate to”

requirement. See Carnival Cruise Lines,

Inc. v. Shute, 499 U.S. 585, 589 (1991)

(declining to reach the scope of the

relatedness requirement despite having

certified it for review).

Although we have not expressly

articulated our view on the “arise out of or

relate to” requirement, our cases implicitly

apply an immediate or proximate cause
14

standard. In analyzing jurisdictional

contacts on a claim-by-claim basis, we

have been careful to note that forum

contacts supporting a contract claim are

not necessarily relevant to establishing

jurisdiction over a tort claim. For

example, in Remick, we noted “there are

different considerations in analyzing

jurisdiction over contract claims and over

certain tort claims.” 238 F.3d at 255-56.

In that case, we separately analyzed the

forum contacts supporting jurisdiction

over plaintiff’s breach of contract, tortious

int erferenc e with contr act ,

misappropriation of image, civil

conspiracy and defamation claims. In

finding specific jurisdiction over the

breach of contract claim, we noted the

contract had been solicited, negotiated,

consummated and performed in the forum.

At the same time however, we found

insufficient contacts to support jurisdiction

over plaintiff’s def ama tion and

misappropriation claims notwithstanding

an express contractual relationship

between plaintiff and defendant clearly

situated in the forum. In finding specific

jurisdiction over plaintiff’s intentional

interference with contract claim, we

reasoned that although the claim sounded

in tort, it was “necessarily related to the

contract” that was the subject of the

alleged tortious interference. Id. at 260. 

Likewise, in Vetrotex CertainTeed

Corp. v. Consolidated Fiber Glass Prods.

Co., 75 F.3d 147, 153 (3d Cir. 1995), we

concluded that only “dealings between the

parties in regard to the disputed contract,

not dealings unrelated to the cause of

action,” are relevant to the minimum

contacts analysis. Vetrotex involved a

breach of contract dispute over payments

due under a 1992 supply agreement

between Vetrotex and Consolidated Fiber

Glass. The district court dismissed the

complaint for lack of specific jurisdiction.

We affirmed noting various contracts

between Vetrotex and Consolidated Fiber

Glass over the previous ten years were not

sufficiently related to the claims based

upon the contested supply agreement to

give rise to jurisdiction. The claim-byclaim partitioning of jurisdictional contacts

evident in Remick and Vetrotex

demonstrates that forum contacts which

merely provide a general context for the

parties’ relationship are insufficiently

related to a claim to support specific

jurisdiction. 

Moreover, our holding in Pinker v.

Roche Holdings, Ltd., 292 F.3d 361 (3d

Cir. 2002), supports application of the

proximate cause standard. In Pinker,

investors filed a securities fraud class

action alleging foreign defendant Roche

made material misrepresentations and

misleading statements in press releases and

reports filed with the Securities and

Exchange Commission which caused

plaintiffs to pay artificially high prices for

Roche ADRs. The district court dismissed

the complaint for lack of personal

jurisdiction and we affirmed. The majority

holds we based our dismissal “solely on

the defendant’s sponsorship of the ADR

facility at issue, an action that certainly

was not the proximate cause of the

fraudulent misrepresentation.” But the
15

misrepresentation claim was not predicated

on sponsorship of the ADRs per se, but

rather on the allegedly fraudulent

information Roche filed with securities

regulators in connection with that

sponsorship. In finding Roche established

minimum contacts by purposefully

directing its activities towards the forum,

the court noted that “a foreign corporation

that has created an American market for its

securities can fairly expect that that market

will rely on reports and media releases

issued by the corporation.” Id. at 372.

The forum contact in Pinker—reporting

incorrect or fraudulent information to

federal regulators— was the proximate

c au s e of plaintiffs’ fraudulent

misrepresentation claim.

IV.

A.

The majority finds specific jurisdiction

over appellees based on “three important

contacts, and the context of those

contacts.” The first contact concerns

Miller Yacht’s allegation that Smith and

Island Yacht came to New Jersey to

receive one of its sales brochures.

Because receipt of the brochure represents

the “first step” to w a rds th e

misappropriation of Miller Yacht’s

photographs, floor plans and trade dress,

the majority concludes this contact

provides a sufficient jurisdictional basis

for appellant’s common law and statutory

unfair competition and trade dress

infringement claims. I have a different

view.

Miller Yacht’s unfair competition and

trade dress infringement claims relate to

misuse of its intellectual property, not to

the mere acquisition or possession of that

property.9 For example, the Lanham Act,

15 U.S.C. § 1125(a), on which Miller

Yacht’s infringement of trade dress (Count

I) and federal unfair competition claims

(Count II) are based, prohibits the “use[] in

commerce” of any false descriptions or

designations of origin which are likely to

cause confusion regarding the origin of

goods or services of another. Id.

(emphasis added). Likewise, the New

Jersey Unfair Competition Act (Counts III

and IV) prohibits a person from

appropriating “for his or their own use a

name, brand, trade-mark, reputation or

goodwill of any maker in whose product

such merchant, firm or corporation deals.”

N.J. Stat. § 56: 4-1. A claim for unfair

competition under New Jersey common

law (Count V) is substantially similar.

American Tel & Tel. Co. v. Winback &

Conserve Program, Inc., 42 F.3d 1421,

1433 (3d Cir. 1994). 

Although receipt of the sales brochure

by Smith and Island Yacht in New Jersey

may have provided the “first step” for

Miller Yacht’s unfair competition and

trade dress infringement claims, this

contact at most might supply the “but for”

9.There are no allegations that Smith

improperly acquired the brochure. It

appears Miller Yacht voluntarily

provided the brochure to Smith during

negotiations over the trademark licensing

and exclusive dealership agreements.
16

causation for these claims. The conduct

which provides the immediate cause of

injury relates to the subsequent improper

use of the material contained in the

brochure. Applying the proximate cause

standard, Miller Yacht’s unfair

competition and trade dress infringement

claims against Smith and Island Yacht do

not “arise out of or relate to” receipt of the

sales brochure.

B.

The majority observes that “plac[ing]

the misappropriated photos and floor plans

in boating magazines circulated in New

Jersey and in at least one brochure that was

sent directly to a potential customer in

New Jersey” provides a “strong contact” in

support of appellant’s unfair competition

and trade dress infringement claims. The

record reveals that these allegedly

improper transmissions into the forum

actually involve: (1) the use of allegedly

misappropriated photographs and floor

plans in Island Yacht advertisements

which appear in trade publications

distributed in New Jersey; and (2) the use

of allegedly misappropriated photographs

by Mariner Yacht in a sales brochure

distributed to a single New Jersey resident.

See JA 44, 47-48. These contacts should

be evaluated separately to determine

whether they provide a sufficient basis for

exercising specific jurisdiction.

Advertising in a trade publication that

reaches the forum generally does not,

without more, provide a sufficient basis

for exercising specific jurisdiction over a

foreign defendant. See, e.g., Mesalic v.

Fiberfloat Corp., 897 F.2d 696, 700 n.10

(3d Cir. 1990) (noting that non-resident

defendant’s marketing strategy, including

advertising in national publications

distributed in the forum, provided only

tangential support for specific personal

jurisdiction); Gehling, 773 F.2d at 542

(holding that advertising in newspapers

which reach the forum are insufficient to

establish “minimum contacts”). Moreover,

there is no evidence in the record

regarding the frequency with which Island

Yacht advertised in these publications, the

number of New Jersey residents reached,

or whether Island Yacht had any

knowledge or control over the extent to

which they targeted New Jersey

consumers. Nevertheless, the extent or

frequency of advertising in the forum may

be less significant where, as here, the

plaintiff’s unfair competition and trade

dress infringement claims arose directly

out of the improper use of Miller Yacht’s

photographs, plans and trade dress in

commerce. Burger King, 471 U.S. at 476

n.18 (“So long as it creates a ‘substantial

connection’ with the forum, even a single

act can support jurisdiction.”). I agree

with the majority that the allegations

relating to Island Yacht’s publication of

certain advertisements in trade journals

that reached New Jersey are sufficiently

related to Miller Yacht’s unfair

competition and trade dress claims as to

provide specific jurisdiction over Island

Yacht with respect to those claims. 

But there are no allegations or any

evidence in the record that appellee Smith

was involved in this advertising effort or
17

otherwise was engaged in conduct that

would permit imputing Island Yacht’s

forum contacts to him. Nicholas v. Saul

Stone & Co. LLC, 224 F.3d 179, 184 (3d

Cir. 2000) (“[J]urisdiction over . . .

[individual] defendants does not exist

simply because they are agents or

employees of organizations which

presumably are amenable to jurisdiction.”).

Likewise, for reasons stated, I would not

impute this contact to appellees Bogachoff

or Mariner Yacht. 

The second contact involves the

mailing of a Mariner Yacht brochure

allegedly containing Miller Yacht’s

photographs to a single New Jersey

resident. This contact is in some ways

more significant for jurisdictional purposes

than advertising in a regional trade

publication because it specifically targets

a resident of the forum. And, here again,

plaintiff’s unfair competition and trade

dressinfringement claims arise directly out

of the allegedly improper use of Miller

Yacht’s photographs, plans and trade dress

in the sales brochure. As such, I agree

with the majority that this contact gives

rise to specific jurisdiction over Mariner

Yacht on the unfair competition and trade

dress infringement claims. However,

because there is no allegation that

Bogachoff or Smith were involved in

sending the sales brochure into New

Jersey, there is no basis for imputing this

contact to them.

C.

The majority observes that the precontractual negotiations in New Jersey

provided appellees the opportunity to deal

with two Chinese companies with which

Miller Yacht apparently had preexisting

business relationships to design and build

34' and 38' double cabin and sedan yachts.

 The majority concludes these negotiations

provide a jurisdictional basis for Miller

Yacht’s tortious interference with

prospective economic advantage claim.

To establish a claim for tortious

interference with prospective economic

advantage, a plaintiff must show (1)

unlawful, intentional interference with the

prospect of, or reasonable expectation of,

economic advantage, and (2) a reasonable

probability that the plaintiff would have

received the anticipated economic benefits

had there been no interference. See

Harper-Lawrence, Inc. v. United

Merchants & Mfrs., Inc., 619 A.2d 623,

630 (N.J. Super. Ct. App. Div. 1993).

While the pre-contractual negotiationsmay

have provided appellees with names and

contact information, there are no

allegations that appellees solicited

business from or negotiated a business

relationship with the Chinese boat

manufacturers while in New Jersey. If

anything, it would appear that these

activities took place in China or from

appellees’ principle places of business

outside the forum. While the effect or

injury resulting from appellees’

interactions with these Chinese firms

ultimately may have been felt by Miller

Yacht in New Jersey, I find no forum

contacts which provide a basis for specific

jurisdiction on the tortious interference

claim.
18

D.

Finally, in addition to appellees’

discrete forum contacts, the majority

suggests that appellees’ unrelated premisappropriation conduct in New Jersey

provides a “nexus” between appellees and

the forum. For example, the majority

notes that appellees attended trade shows

in New Jersey “and in adjoining states,”

and advertised in magazines distributed in

New Jersey. But there are no allegations

that this conduct relates to the claims

asserted. While stating these contacts are

not “essential to this litigation” and are

only “indirectly related to Millar Yacht’s

trade dress and unfair competition claims,”

the majority concludes the “sum of these

contacts showsthat Appellees purposefully

availed themselves of New Jersey.”

A forum contact that might otherwise

prove jurisdictionally insufficient under a

specific jurisdiction analysis may appear

more convincing when swaddled in the

more extensive, yet unrelated, forum

contacts of a foreign defendant. And the

contacts upon which the majority

relies—attendance at trade shows,

negotiating in the forum—may well go

toward establishing New Jersey’s general

jurisdiction over appellees. But the parties

agree that appellees’ forum contacts are

not so “continuous and systematic” to give

rise to general jurisdiction. As such, I

would not consider appellees’ premisappropriation and unrelated forum

contact as part of the specific jurisdiction

analysis. “We cannot simply aggregate all

of a defendant’s contacts with a state—no

matter how dissimilar in terms of

geography, time, or substance—as

evidence of the constitutionally required

minimum contacts.” RAR, 107 F.3d at

1277. Rather, specific jurisdiction will lie

over a foreign defendant when the claim

asserted “arises out of or relates to” the

foreign defendant’s contacts with the

forum. Burger King, 461 U.S. at 472.

Emphasizing contacts unrelated to the

asserted causes of action blurs the

fundamental distinction between specific

and general jurisdiction.

V.

In sum, I would find that only Island

Yacht and Mariner Yacht have

constitutionally sufficient “minimum

contacts” with New Jersey to support

specific jurisdiction as to plaintiff’s unfair

competition and trade dress infringement

claims. I would not find specific

jurisdiction over any of the appellees with

respect to the tortious interference with

prospective economic advantage claim. I

would not end the jurisdictional inquiry

here, however.

Where a non-resident defendant’s

contacts with the forum alone are

insufficient to establish specific personal

jurisdiction, “we must consider whether

the application of Calder v. Jones, can

change the outcome.” IMO Indus., 155

F.3d at 259-60 (citation omitted). In

Calder v. Jones, 465 U.S. 783 (1984), the

Supreme Court set forth an “effects test”

for determining personal jurisdiction over

non-resident defendants who commit

intentional torts with effects inside the

forum. “[U]nder Calder an intentional tort
19

directed at the plaintiff and having

sufficient impact upon it in the forum may

suffice to enhance otherwise insufficient

contacts with the forum such that the

‘minimum contacts’ prong of the Due

Process test is satisfied.” IMO Indus., 155

F.3d at 260.10 Because Miller Yacht’s

claims sound in tort,11 I would remand for

the District Court to consider whether the

effects of appellees’ non-forum conduct

give rise to specific jurisdiction under the

Calder framework.

10.In IMO Industries, we held that to

establish jurisdiction under the “effects

test,” plaintiff must show: (1) defendant

committed an intentional tort; (2)

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; and

(3) 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. We recognized that this

“conservative reading of Calder may

significantly limit the types of business

tort cases that will satisfy the

requirements of personal jurisdiction,”

but added that Calder did not “carve out

a special intentional torts exception to the

traditional specific jurisdiction analysis,

so that a plaintiff could always sue in his

or her home state.” Id.

11.We have described “unfair

competition,” and causes of action under

the Lanham Act as intentional business

torts. See Granite State Ins. Co. v.

Aamco Transmissions, Inc., 57 F.3d 316,

321 (3d Cir. 1995) (“[T]he Lanham Act

is derived generally and purposefully

(continued...)

11.(...continued)

from the common law tort of unfair

competition, and its language parallels

the protections afforded by state common

law and statutory torts.”) (citation

omitted). Tortious interference with

prospective economic advantage

similarly sounds in tort, and other circuits

have recognized copyright infringement

as an intentional tort. See, e.g., Bucklew

v. Hawkins, Ash, Baptie & Co., LLP, 329

F.3d 923, 931 (7th Cir. 2003)

(“Copyright infringement . . . is an

intentional tort.”).