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D ock e t 99-1422

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. e du/thir dc ir c uit_2001/13Filed 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 Judge s

(Filed: January 25, 2001)

Patrick C. Campbell, Jr. (Argued) Richard G. Phillips Associates, P.C. Philadelphia, PA 19103-7596

Attorney for AppellantLouis 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 Kat hleen Klaus, as well as against the law firm D'Ancona & P flaum with which Brown and Klaus are associated. The comp laint

alleges, inter alia, breach of contract, tortious i nterference with contract, misappropriation of image and likene ss, 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 Fe deral Rules of Civil Procedure for lack of personal juris diction and against the law firm under Rule 12(b)(6) for fa ilure to state a claim. See Remick v. Manfredy, 52 F. Supp. 2d 452 (E.D. Pa. 1999). This appeal raises a number of iss ues which we will consider seriatim.

___________________________________________________ ______________

1. Although Remick refers briefly to the dismissal of the remaining counts of the complaint, he provides no legal argum ent to support his

contention that the District Court erred and we hav e found none.

2I.

FACTS

According to the complaint, which we accept as true for purposes of a motion to dismiss, in late 1996 Remic k and his associate, Bernard Resnick, wer e approached by Manfredy, a lightweight professional boxer , and hi s advisors, John Manfredy, his brother and agent, and Jeffrey Brown, an attorney with D'Ancona & Pflaum, about representing Angel Manfredy in negotiations, partic ularly with fight promoter Cedric Kushner Pr oductions, Lt d. ("Kushner"). Eventually, Remick and Manfr edy enter ed into

a contract under which Remick would act as Manfr ed y's special counsel in the procurement and negotiation of high profile and lucrative fights, promotions and endors ements. Manfredy signed a fee agreement that entitled Remic k to a specified percentage of all purses or other compens ation which Manfredy received for boxing or pr omotions d uring the term of the agreement and of any endorsement co ntract procured by Remick on Manfredy's behalf.2 Manfredy and Brown had the right to review and appr ove or disap prove 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 fr om his representation, and in the year following Remic k's retention Remick had secured Manfr edy purses up to $375,000. In early 1998, there was a disagr eement betweenRemick and Manfredy over negotiations for an HBOtelevised 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 agree ment, and 15% of the gross amount Manfredy received fr om any endorsemen ts Remick procured for the boxer.

3adequately represent Manfredy's inter ests by not d elivering

on certain alleged promises and faltering as a nego tiator. The letter concludes with the following paragraphs:

When we began working together you led me t o believe that you had the ability and connect ions to bring in endorsements and negotiate effectiv ely 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 yo ur engagement. Please forward all of my files r elating to my representation to my attorney, Jeffrey Br own, 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 ask ed Kushner to place 8% of Manfredy's purse into escrow until his dispute with Manfredy could be resolved, but Ku shner

did not do so.

On September 2, 1998, Remick wrote to Manfr edy rejecting the termination of his r epresentation, d emanding 8% of Manfredy's purse from the Lacenfight, and sta ting that he would "be left with no recourse than to pur sue legal remedies" unless Manfredy withdr ew his March 2, 19 98 termination letter. App. at 59-60. On September 11, 1998, defendant Kathleen Klaus, another attorney with D'A ncona & Pflaum, sent a letter to Remick stating:

We are writing in response to your letter o f 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

4alternative other than to sever his associat ion with

you. Your September 2, 1998 letter indicates that you received Mr. Manfredy's letter six months ag o and, because you are an attorney, we assume you appreciated its import.

We are not aware of any legal principle whi ch allows you to "reject" the termination of an attorn ey client relationship or any authority which requir e s one party to the contract to perform in the face of th e other party's breach. If you insist on attempting to extort money from Cedric Kushner Promotions, Ltd. o r any other entity with which Mr. Manfredy is enga ged on the basis of your alleged contract with Mr. Manf r edy, we will not hesitate to pursue our legal remedi es, including a suit for damages arising from yo ur failure to adequately represent Mr. Manfr edy.

App. at 121.

Remick's complaint in this case arose out of both t he failed relationship with Manfredy and the Klaus let ter.

Defendants filed a motion to dismiss under both Rul e 12(b)(2) and Rule 12(b)(6) and an Alternative Motio n 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 th e 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'Ancon a & Pflaum, and dismissed (without prejudice) his claim s for

interference with business and contractual relation ships (variously called, inter alia, inter ference with c ontracts) and civil conspiracy. Remick filed a timely notice of a ppeal.

II.

APPELLATE JURISDICTION

Although the order of the District Court dated Apri l 22, 1999, states that the complaint is dismissed withou t prejudice, in fact the Memorandum and Or der dated the

5same day and filed contemporaneously holds that the

complaint against the individuals is dismissed for lack of personal jurisdiction, that there is general person al 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 agains t that defendant, the claims for tortious interfer ence wi th contract and for civil conspiracy, are dismissed with leave given to Remick to replead. He chose not to do so, instead f iling the notice of appeal.

Because of the procedural posture of the case, we a sked Remick to comment at oral argument on our jurisdict ion to hear this matter. In Borelli v. City of Reading, 53 2 F.2d 950, 951-52 (3d Cir. 1976) (per curiam), this court, not ing the general rule that an order dismissing a complaint w ithout 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 appea lable."

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 S emerenko v. Cendant Corp., 223 F.3d 165, 172-73 (3d Cir. 200 0), the plaintiffs/appellants declared their intention to s tand on their complaint in this court, and we thereafter tr eated the district court's order dismissing the complaint, al beit 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 u nder 28

U.S.C. S 1291.

6III.

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 r esident,

and the other defendants are residents of Illinois. Under Fed. R. Civ. P. 4(e), a district court may assert p ersonal jurisdiction "over non-resident defendants to the e xtent permissible under the law of the state wher e the d istrict

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 exerci se personal jurisdiction over nonresident defendants t o 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 "minim um contacts" in the forum state, and that the exer cis e of jurisdiction comport with "traditional notions of f air play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quotations om itted). The Supreme Court has stated that "minimum contacts must have a basis in `some act by which the defenda nt purposefully avails itself of the privilege of cond ucting activities within the forum State, thus invoking th e benefits and protections of its laws.' " Asahi Metal Indus. Co., Ltd. v. Superior Court of California, 480 U.S. 102, 109 (19 87) (quoting Burger King Corp. v. Rudzewicz , 471 U.S. 462, 475 (1985)).

Personal jurisdiction may be exercised under two di stinct theories, a defendant's general or claim-specific c ontacts with the forum. General jurisdiction is based upon the defendant's "continuous and systematic" contacts wi th the forum and exists even if the plaintiff 's cause of action

arises from the defendant's non-forum r elated acti vities. See Vetrotex CertainTeed Corp. v. Consol. Fiber Gla ss Prod. Co., 75 F.3d 147, 151 n.3 (3d Cir . 1996) (citation s omitted).

7In contrast, specific jurisdiction is present only if the

plaintiff 's cause of action arises out of a defend ant's forumrelated activities, such that the defendant" `shoul d reasonably anticipate being haled into court' " in that forum. Id. at 151 (quoting World-Wide Volkswagen Co rp. v. Woodson, 444 U.S. 286, 297 (1980)).

The District Court found that it had general jurisd iction over the D'Ancona & Pflaum law firm, but that it di d not have general jurisdiction over the individual defen dants. Neither of these determinations has been questioned on appeal. Therefore, we confine our inquiry to whethe r the District Court can exercise specific jurisdiction o ver the

individual defendants.

Such a determination is claim specific because a conclusion that the District Court has personal jur isdiction over one of the defendants as to a particular claim asserted by Remick does not necessarily mean that it has per sonal jurisdiction over that same defendant as to Remick' s other claims. See Gehling v. St. George's Sch. of Med., L td., 773 F.2d 539 (3d Cir. 1985) (finding personal jurisdict ion 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. Shusha n, 954 F.2d 141 (3d Cir. 1992) (examining the issue of per sonal jurisdiction as to plaintiff 's fraud claim separat ely from plaintiff 's breach of fiduciary duty claim); Provi dent Nat'l Bank v. California Fed. Sav. & Loan Ass'n, 819 F.2d 434, 437 (3d Cir. 1987) (describing specific jurisdictio n as present when "the particular cause of action sued u pon arose from the defendant's activities within the fo rum state").

In holding that it did not have specific personal jurisdiction over the individual defendants, the Di strict Court did not conduct a claim-specific analysis exc ept as to the breach of contract claim. It may not be necessa ry 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 be lieve such differentiation is requir ed here.

8A. 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 c onspiracy, and misappropriation of image and likeness. In dete rmining jurisdiction over a breach of contract claim, we mu st consider the totality of the circumstances, includi ng the location and character of the contract negotiations , the terms of the contract, and the parties' actual cour se of dealing. See Farino, 960 F.2d at 1223.

The District Court based its decision that ther e w as no jurisdiction over Manfredy on the breach of contrac t claim primarily on this court's decision in Vetrotex, whe re we held that the circumstances attending two supply agr eem ents did not support the district court's exercise of sp ecific personal jurisdiction. 75 F.3d at 152. W e stated t hat " `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 e sident defendant].' " Id. (quoting Sunbelt Corp. v. Noble, Denton & Assoc., Inc., 5 F.3d 28, 32 (3d Cir . 1993)). Never theless, we expressly acknowledged that in many instances, pers onal jurisdiction can arise primarily from a nonr esiden t

defendant's contract with a forum resident. In Vetr otex, we distinguished

other cases where jurisdiction over a nonr e sident 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 d efendant

solicited the contract or initiated the busi ness relationship leading up to the contract. Nor is this a case where the defendant sent any payments t o the plaintiff in the forum state, or where the d efendant 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 af fidavit, Manfredy sought Remick out by placing a telephone c all to

9Remick's associate Resnick at their office in Phila delphia.

This solicitation eventually resulted in the fee ag reement 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, suggest ing that Manfredy was receiving the benefit of Pennsylv ania law under the agreement. In addition, at least one paym ent was sent by Manfredy to Remick at his Philadelphia offi ce. Most of the services performed by Remick on behalf of Ma nfredy 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 contractua l relationship between Manfredy and Remick with Remic k at his Philadelphia office, including the final commun ication -- 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 mo re 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 ju risdiction over out-of-state defendants who had approached a Pennsylvania bank seeking to borrow money. W e quot ed from the Supreme Court's decision in Burger King, w here the Court commented that jurisdiction is proper whe re parties "reach out beyond one state and cr eate con tinuing relationships and obligations with citizens of anot her state." Farino, 960 F.2d at 1222 (quoting Bur ger King, 471 U.S. at 473). Analogizing to that situation, we stated in F arino that by approaching the bank, the defendants "establish[ ed] a business relationship with a Pennsylvania entity" a nd "knowingly created continuing obligations with a ci tizen of Pennsylvania." Id. at 1223. We commented that "[w]h en a defendant has received the benefits and pr otection s of the forum's laws by engaging in business activities wit h a

10forum resident, the courts have `consistently rejec ted the

notion that an absence of physical contacts can def eat personal jurisdiction there.' " Id. at 1225 (quoti ng Burger King, 471 U.S. at 476); see also Time Share Vacatio n Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 65-66 (3d C ir. 1984) ("What is required . . . is actual evidence that, b y entering into the contract, the particular defendant could f oresee impact within Pennsylvania.").

In a situation similar to that before us, in which a Virginia law firm sued a California attorney in Vir ginia to collect fees after the attorney had retained the la w 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 w ith [the plaintiff], knowing that [the plaintif f] wa s a Virginia lawyer who likely would do the requested wor k in Virginia. [The defendant] contracted with [t he 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 h is duties under the contract in Virginia. Finally, the parties exchanged numerous telephone calls and writt en communications. Few examples of transacting business are more classic than [the defendan t's] decision to associate a Virginia lawfirm on a case and his subsequent dealings with that firm. Beca use [the defendant] transacted business in Vir ginia, and because [the plaintiff 's] cause of action a rose directly from those activities, the Virginia long-arm statute is

satisfied.

English & Smith v. Metzger, 901 F.2d 36, 39 (4th Ci r. 1990) (footnote omitted). Significantly, Vir ginia's long -arm statute has been interpreted, like Pennsylvania's,"to exten d jurisdiction to the extent permissible under the du e 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 conclu de that the District Court has personal jurisdiction over M anfredy

for Remick's breach of contract claim and that the District Court erred as a matter of law in holding to the co ntrary.

11B. Specific Jurisdiction over Individual Defendants for

Defamation

Remick asserts his defamation claim against all fou r individual defendants as well as the law fir m. Her e 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 Ma rch 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 "pi cked up the letter and reviewed it." App. at 68. This, Remick c ontends, constituted publication in Pennsylvania. The compla int also alleges that the charges in the letter wer e publis hed "in whole or in part" by Brown and John Manfr edy to "o ther members of the professional boxing community," incl uding Kushner. App. at 95-96. The second letter , dated S eptember 11, 1998, was sent by Klaus to Remick and reiterate d Manfredy's statements in the March 2nd letter that Remick was fired for inadequately representing Manfredy an d urged him to stop "insist[ing] on attempting to extort mo ney." App. at 121. Remick alleges that the letter and the charges therein were published and distributed"elsewhere in to the boxing community." App. at 97.

Remick argues that the District Court has specific personal jurisdiction over the individual defendant s as to his defamation claim because the allegedly defamato ry statements targeted a Pennsylvania resident's forum -related activities and were published in Pennsylvania. Remi ck relies on Calder v. Jones, 465 U.S. 783 (1984), whe re the Supreme Court set forth the "effects test" for dete rmining personal jurisdiction over nonresident defendants w ho allegedly committed an intentional tort outside the forum. Calder involved an allegedly libelous National Enqu irer article written and edited in Florida and published nationwide concerning the California activities of a California resident. Because the Califor nia reside nt was an

12entertainer in Hollywood, the story had its gr eate st 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 Calif ornia, 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 a t [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 sh ow that:

(1) The defendant committed an intentional t ort ;

(2) The plaintiff felt the brunt of the harm in the forum

such that the forum can be said to be the fo cal point of the harm suffered by the plaintiff as a r esult of that

tort;

(3) The defendant expressly aimed his tortio us 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 attem pt to sell its Italian subsidiary to a French corporation because New Jersey, where the plaintiff 's headquarters was loc ated, was not the focus of the dispute. We stated that"[s]imp ly asserting that the defendant knew that the plaintif f 's principal place of business was located in the foru m would

be insufficient in itself . . . . The defendant mus t manifest behavior intentionally targeted at and focused on t he forum for Calder to be satisfied." Id. at 265 (quotation omitted) (footnote omitted). We added that "the plaintiff mu st show that the defendant knew that the plaintiff would su ffer the brunt of the harm caused by the tortious conduct in the forum, and point to specific activity indicating th at the defendant expressly aimed its tortious conduct at t he

forum." Id. at 266.

13Applying the three-part test of Imo Industries to t his case,

where the allegedly defamatory letters wer e writte n 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 par ts. Defamation is an intentional tort and, because Remi ck's professional activities are center ed in Pennsylvan ia and the allegedly defamatory letters question Remick's pr o fessional ability, Remick may reasonably contend that he suff ered the brunt of the harm in Pennsylvania. See Keeton v

. Hustler Magazine, Inc., 465 U.S. 770, 780 (1984) (f inding

that individuals endure the bulk of har m from tort s like defamation in their home states).

However, we believe that Remick has not met the las t requirement of Imo Industries. Remick argues that b ecause two persons in his office read the Mar ch 2nd lette r while it was on the fax machine, it was published in Pennsyl vania and therefore the targeting r equirement was satisf ied. At oral argument, he amplified that position, contendi ng that such publication alone was sufficient to subject th e sender to personal jurisdiction. We are not persuaded beca use it is clear from Remick's own affidavit that the two pers ons in his office read the March 2nd letter solely because it was lying on the fax machine. There is no indication th at the letter was targeted at them or at anyone in Pennsyl vania other than Remick. Cf. Calder, 465 U.S. at 785 (fin ding that 600,000 copies of National Enquirer regularly sold in California). Therefore, this publication provides n o basis for jurisdiction.

According to Remick, the allegedly defamatory lette rs and the charges therein were published throughout the b oxing community, not just in Philadelphia. Significantly, Remick has not asserted that Pennsylvania has a unique relationship with the boxing industry, as distingui shed from the relationship in Calder between California and the motion picture industry, with which the Calder plai ntiff 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 o r shared with other persons in the professional boxing commu nity, such persons were apparently located thr oughout th e

14country. Unlike the defendants in Calder, whose nat ional

magazine is published in California mor e than any other state and whose story focused on California, see Ca lder 465 U.S. at 788-89, it cannot be said that the defendan ts here expressly aimed their conduct at Pennsylvania so th at Pennsylvania was the focal point of the tortious ac tivity. The same analysis applies to the second letter . Th erefore, 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 t he individual defendants with regard to Remick's defam ation

claim.

C. Specific Jurisdiction over Angel and John Manfre dy 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 clai m, a claim that Remick brings only against the two of th em. That claim is based on the posting on Manfredy's ol d 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, ther e is no basis to conclude that the defendants expressly aim ed their allegedly tortious activity at Pennsylvania knowing that harm was likely to be caused there. See Imo Industr ies, 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 perso nal jurisdiction over the Manfredy brothers on Remick's misappropriation of image and likeness claim.

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3. The facts in this case do not requir e that we c onsider the current debate as to which fora have jurisdiction over a de fendant who seeks to

use its website for the solicitation of or transact ion of business. The

District Court summarized its view of the law in th e area, in which it had concluded that the mere posting of infor mation or advertisements on an Internet website does not confer nationwide persona l jurisdiction. See Remick, 52 F. Supp. 2d at 457. We do not disagree.

15D. Specific Jurisdiction over John Manfr edy and Br own

for Tortious Interference

The final tort claim against individual defendants before us on appeal is Remick's claim against defendants J ohn Manfredy and Brown for tortious inter ference with contractual relations, which the District Court dis missed for lack of personal jurisdiction. Remick alleges t hat John Manfredy and Brown, among other things,"set[ ] Remi ck up to fail in the negotiations over the Azumah Nelsonf ight and . . . publish[ed] and disseminat[ed] false and defa matory information about Remick's skill and ability" with the intent "to interfere[ ] and cause harm" to Remick's contra ct with Manfredy. App. at 99. In his appellate brief, Remic k claims that John Manfredy and Brown engaged in this activi ty so that Angel Manfredy would replace Remick with D'Anc ona & Pflaum and Brown. See Br. of Appellant at 40-41. Tortious interference is an intentional tort, and t herefore 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 Pennsylvani a, as his business practice is based in Philadelphia. Alt hough we

concluded there that Remick could not show the defendants expressly aimed their tortious conduct a t Pennsylvania so that this forum can be viewed as th e focal point of the tortious activity, Remick has mor e ba sis to support jurisdiction on this claim. Albeit a tort, it is necessarily related to the contract which he had en tered into with Manfredy and which is the subject of the alleged

tortious interference. Remick asserts in his affida vit that he conducted the majority of his negotiation, consulta tion, and advice services for Manfredy out of his Philadelphi a office. App. at 68. Accepting that assertion as true, it fo llows that the effects of any intentional conduct by the defen dants designed to interfere with Remick's contractual rel ations with Manfredy necessarily would have been felt in Pennsylvania.

16Further, unlike the case in Imo Industries, where t he

German defendant's alleged tortious conduct appeare d to have been expressly aimed at injuring a Fr ench com pany 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 I ndustries. Thus, we conclude that the District Court err ed as a matter of law in holding that it lacked specific jurisdict ion over the individual defendants with respect to Remick's clai m for

tortious interference.

IV.

CLAIMS AGAINST THE LAW FIRM

A. The Defamation Claim

Although we conclude that the District Court does n ot have personal jurisdiction over Remick's defamation claim against the four individual defendants, we must r e ach the

merits of that claim because the court dismissed th e defamation claim against the law firm of D'Ancona & Pflaum over whom it admittedly had general jurisdic tion.4 That firm is claimed to be vicariously liable as th e employer of both Brown and Klaus when Angel Manfr edy sent h is letter to Remick dated March 2, 1998 and Klaus sent her letter dated September 11, 1998.5 The District Cour t held that Remick's complaint failed to state a claim of defamation. The sufficiency of Remick's pleading ra ises 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 admissio n "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 t he court to conclude that the law firm "purposefully availed itself of t he privilege of conducting activities within this state to justify the exer ci se of general personal jurisdiction over it." Id.

5. Although Brown did not sign the Mar ch 2nd lette r, the complaint makes the general assertion that this letter "was p repared by, and/or published and disseminated to, other members of the Manfredy team," which included Brown. App. at 95.

17As the District Court recognized, to succeed on a c laim

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 meani ng; if not, the claim should be dismissed. See Baker v. La fayette College, 516 Pa. 291, 296, 532 A.2d 399, 402 (1987)

.

Under Pennsylvania law, a statement is defamatory i f it "tends so to harm the reputation of another as to l ower him in the estimation of the community or to deter thir d persons from associating or dealing with him." Tuck er v. Fischbein, No. 99-1139, slip op. at 9 (3d Cir . Jan uary 9, 2001) (quoting Corabi v. Curtis Publ'g Co., 441 Pa. 432, 442, 273 A.2d 899, 904 (1971)). In determining whet her a communication is defamatory, the court must view th e statement "in context" with an eye towar d "the eff ect the [statement] is fairly calculated to pr oduce, the i mpression it would naturally engender, in the minds of the avera ge persons among whom it is intended to circulate." Ba ker, 516 Pa. at 296, 532 A.2d at 402 (quoting Corabi , 4 41 Pa. at 447, 273 A.2d at 907). Viewing statements in the ir appropriate contexts, courts must deter mine whethe r they "tend[ ] to blacken a person's r eputation or to ex pose him to public hatred, contempt, or ridicule, or to injure him in his business or profession." Corabi, 441 Pa. at 441, 27 3 A.2d

at 904.

The District Court focused on the September 11th le tter

and did not address whether Remick's defamation cla im can be based on the March 2nd letter fr om Manfredy

. Remick's complaint alleges that the March 2nd lette r accused him of: (1) failing to adequately repr esen t 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 fect ive negotiator and attorney.

Each of these statements expressed Manfr edy's subj ective opinion. In Pennsylvania, an opinion cannot be defa matory

18unless it "may reasonably be understood to imply th e

existence of undisclosed defamatory facts justifyin g the opinion." Baker, 516 Pa. at 297, 532 A.2d at 402 (e mphasis added) (quotation omitted). In his March 2nd letter

, Manfredy disclosed the factual basis behind each of his

accusations. He noted five instances in which Remic k failed to adequately represent his interests, including (1 ) Remick's business partner's refusal to convey a counter offe r in negotiations for the possible Rueles fight, (2) Rem ick's failure to deliver a million-dollar purse following the Gatti fight, (3) Remick's failure to increase the purse f or the Paez fight, (4) Remick's failure to increase the purse f or the possible Nelson fight (although not referr ed to di rectly 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 le tter cannot be considered defamatory. See Redco Corp. v. CBS, Inc., 758 F.2d 970, 972 (3d Cir. 1985) (finding opi nion disclosing underlying facts not defamatory because" a listener may choose to accept or reject [the opinio n] on the basis of an independent evaluation of the facts"); Parano v. O'Connor, 433 Pa. Super. 570, 575, 641 A.2d 607, 60 9 (Pa. Super. Ct. 1994) (finding incapable of being defama tory comments that appellant was adversarial, less than helpful, and uncooperative because they were subjective opin ions based upon disclosed facts). Rather, they ar e "fra nk 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 insi st on attempting to extort money . . . , we will not hesi tate to pursue our legal remedies, including a suit for dam ages arising from your failure to adequately represent M r. Manfredy." App. at 121 (emphasis added). The Distri ct 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 perfo rmance on Mr. Manfredy's behalf." Remick , 52 F. Supp. 2d at 460. The court recognized that Remick might have found t he

19letter 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" mone y from Kushner, Klaus and Manfredy would not hesitate to p ursue legal remedies (emphasis added). The language of th e letter does not so state. Admittedly, the word "extort" is a strong one. In some contexts, when published to thir d par ties not involved in the dispute, the statement that one per son is extorting money from another has been viewed as defamatory under Pennsylvania law. See, e.g., Frede rick v. Reed Smith Shaw & McClay, 1994 WL 57213, at *11 (E. D. Pa. February 18, 1994) (finding statement that"accu ses [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 cr imes involving moral turpitude" capable of being defamat ory); Pelagatti v. Cohen, 370 Pa. Super. 422, 439, 536 A. 2d 1337, 1345 (Pa. Super. Ct. 1987) (finding that "sta tements to the effect that an attorney has committed improp er, illegal actions within the context of his practice, would tend to impugn his integrity, and thereby blacken his bu siness reputation"); see also DaimlerChrysler Corp. v. Ask inazi, 2000 WL 964753, at *5 (E.D. Pa., July 12, 2000) (fi nding statement that plaintiff 's lawsuit was"a form of l egalized 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 21 3, 216 (1981) (noting that "a publication is defamatory if it ascribes to another `conduct, character or a condit ion that would adversely affect his fitness for the proper c onduct of his lawful business, trade or profession' ") (quoti ng 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 ta king diametrically opposing legal positions. Moreover, K laus was responding to Remick's September 2nd letter to Manf redy, in which he demanded that Manfredy revoke his termination letter and threatened to pursue legal r emedies

20of 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 phrase s 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 t erm "extort" is non-defamatory "rhetorical hyperbole, a vigorous epithet used by those who considered [plaintiff 's] negotiating position extremely unreasonable." Green belt Coop. Publ'g Ass'n, Inc. v. Bresler, 398 U.S. 6, 14 (1970) (finding "blackmail" accusation not defamatory beca use 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 be en toned down, and we encourage counsel to maintain ci vility in their correspondence with each other r egardless of the animosity between clients, the audience to which th is statement was allegedly published knew that it ar o se from bitter attorney communications.

In his complaint, Remick also alleges that Klaus' September 11th letter was defamatory because she ac cused him of "having committed professional malpractice." App. at 97. Although Remick doesn't identify Klaus' specifi c comments in either his complaint or his affidavit, in her letter Klaus refers to Remick's "failur e to perfor m [his] obligations to [Manfredy]" and his"failure to adequ ately represent Mr. Manfredy." App. at 121.

Significantly, Klaus stated in her letter that Manf redy's March 2nd letter made her assertions of pr ofession al failings "very clear." App. at 121. By reiterating and specifically incorporating Manfredy's earlier lette r into her own letter, Klaus made known that any facts not dis closed

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 a nd 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.

21B. Claims of Tortious Interfer ence with Contract a nd

Conspiracy

Remick's remaining contention on appeal is that the District Court erred in dismissing his tortious int erference with contract and conspiracy claims against D'Ancon a & Pflaum. As noted earlier, the basis for Remick's to rtious 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] bou t that Angel Manfredy was not even physically capable of fighting." Br. of Appellant at 40. Remick's conspir acy 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 prosp ective contractual relation between the complainant and a third party;

(2) purposeful action on the part of the def endant, specifically intended to harm the existing r elation, or to prevent a prospective relation fr om occurri ng;

(3) the absence of privilege or justificatio n on the part of the defendant; and

(4) the occasioning of actual legal damage a s 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, whic h the court deemed to be the requirement of Fed. R. Civ. P. 8(a)(2). The court found Remick's complaint deficie nt

because Remick did not "advise the defendant of how its employee allegedly `set up' the plaintiff to fail i n fight negotiations and what false and defamatory infor ma tion [Brown] is accused of disseminating and to whom." R emick, 52 F. Supp. 2d at 461.

Although the District Court dismissed the tortious interference with contract claim and the conspiracy claim

22with leave to replead, in dismissing the court impo sed a

pleading requirement beyond that r equired by the F ederal Rules of Civil Procedure. Under the still applicabl e 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 defendant s on notice as to the circumstances surrounding the alle ged tortious behavior. There are discovery mechanisms, such as interrogatories, for ascertaining more details rega rding the complaint allegations. Therefore, we cannot affirm the

District Court's dismissal of Remick's claims for t ortious interference and conspiracy against D'Ancona & Pfla um.

V.

CONCLUSION

For the foregoing reasons, we will r everse the Dis trict Court's order dismissing for lack of jurisdiction R emick'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 w ill affirm the dismissal with prejudice of Remick's claim agai nst

D'Ancona & Pflaum for defamation. We will r everse the order insofar as it dismissed under Rule 12(b)(6) R emick's claims against the law firm for tortious interferen ce with contract and conspiracy. On remand, the District Co urt may want to address promptly the defendants' altern ative motion to transfer. Each party to bear its own cost s.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

23