2001 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-25-2001

Remick v. Manfredy

Precedential or Non-Precedential:

Docket 99-1422

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Recommended Citation

"Remick v. Manfredy" (2001). 2001 Decisions. Paper 13.

http://digitalcommons.law.villanova.edu/thirdcircuit_2001/13
Filed January 25, 2001 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 99-1422 

LLOYD Z. REMICK, ESQ., 

 Appellant 

v. 

ANGEL MANFREDY; 

JOHN MANFREDY; 

JEFFREY H. BROWN, ESQ.; 

KATHLEEN H. KLAUS, ESQ.; 

D'ANCONA & PFLAUM 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. No. 99-cv-00025) 

District Judge: Hon. J. Curtis Joyner 

Argued September 13, 2000 

Before: SLOVITER, SCIRICA and ALITO, Cir cuit Judges 

(Filed: January 25, 2001) 

 Patrick C. Campbell, Jr. (Argued) 

 Richard G. Phillips Associates, P.C. 

 Philadelphia, PA 19103-7596 

 Attorney for Appellant 
 Louis C. Ricciardi 

 Rodriguez & Richards 

 Philadelphia, PA 19103 

 Lisa M. Sommer 

 Steven L. Baron (Argued) 

 D'Ancona & Pflaum 

 Chicago, IL 60601 

 Attorneys for Appellees 

OPINION OF THE COURT 

SLOVITER, Circuit Judge. 

Plaintiff Lloyd Remick, an attorney specializing in sports 

and entertainment law licensed to practice in the 

Commonwealth of Pennsylvania, filed suit in a 

Pennsylvania state court against Angel Manfr edy 

("Manfredy"), John Manfredy, Jef frey Brown and Kathleen 

Klaus, as well as against the law firm D'Ancona & Pflaum 

with which Brown and Klaus are associated. The complaint 

alleges, inter alia, breach of contract, tortious interference 

with contract, misappropriation of image and likeness, civil 

conspiracy, and defamation.1 The defendants removed the 

action to the United States District Court for the Eastern 

District of Pennsylvania. 

The District Court dismissed the complaint against the 

individual defendants under Rule 12(b)(2) of the Federal 

Rules of Civil Procedure for lack of personal jurisdiction 

and against the law firm under Rule 12(b)(6) for failure to 

state a claim. See Remick v. Manfredy, 52 F. Supp. 2d 452 

(E.D. Pa. 1999). This appeal raises a number of issues 

which we will consider seriatim. 

_________________________________________________________________ 

1. Although Remick refers briefly to the dismissal of the remaining 

counts of the complaint, he provides no legal argument to support his 

contention that the District Court erred and we have found none. 

 2 
I. 

FACTS 

According to the complaint, which we accept as true for 

purposes of a motion to dismiss, in late 1996 Remick and 

his associate, Bernard Resnick, wer e approached by

Manfredy, a lightweight professional boxer , and his 

advisors, John Manfredy, his brother and agent, and

Jeffrey Brown, an attorney with D'Ancona & Pflaum, about 

representing Angel Manfredy in negotiations, particularly 

with fight promoter Cedric Kushner Pr oductions, Ltd. 

("Kushner"). Eventually, Remick and Manfr edy entered into 

a contract under which Remick would act as Manfr edy's 

special counsel in the procurement and negotiation of high 

profile and lucrative fights, promotions and endorsements. 

Manfredy signed a fee agreement that entitled Remick to a 

specified percentage of all purses or other compensation 

which Manfredy received for boxing or pr omotions during 

the term of the agreement and of any endorsement contract 

procured by Remick on Manfredy's behalf.2 Manfredy and 

Brown had the right to review and appr ove or disapprove 

all contracts negotiated by Remick. On February 7, 1997, 

Remick was successful in negotiating for Manfr edy an 

Exclusive Promotional Agreement between Kushner and

Manfredy. 

According to Remick, Manfredy quickly benefitted from 

his representation, and in the year following Remick's 

retention Remick had secured Manfr edy purses up to

$375,000. In early 1998, there was a disagr eement between 

Remick and Manfredy over negotiations for an 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 agreement, and 15% of the 

gross amount Manfredy received fr om any endorsements Remick 

procured for the boxer. 

 3 
adequately represent Manfredy's inter ests by not delivering 

on certain alleged promises and faltering as a negotiator. 

The letter concludes with the following paragraphs:

 When we began working together you led me to 

 believe that you had the ability and connections to 

 bring in endorsements and negotiate effectively with 

 [Kushner]. This hasn't happened. During the more 

 than thirteen months you represented me you never 

 delivered a single endorsement opportunity. 

 As a result of your failures to adequately represent 

 my interests, I have decided to terminate your 

 engagement. Please forward all of my files r elating to 

 my representation to my attorney, Jeffrey Brown, at 

 D'Ancona & Pflaum. 

App. at 119. 

Thereafter, Manfredy's team negotiated with Kushner for 

a bout against Isander Lacen to take place on June 16, 

1998, with a $75,000 purse. Remick claimed that he was 

entitled to an 8% share of Manfredy's purse because he 

negotiated the overarching Exclusive Pr omotional 

Agreement between Manfredy and Kushner . Remick asked 

Kushner to place 8% of Manfredy's purse into escrow until 

his dispute with Manfredy could be resolved, but Kushner 

did not do so. 

On September 2, 1998, Remick wrote to Manfr edy 

rejecting the termination of his r epresentation, demanding 

8% of Manfredy's purse from the Lacenfight, and stating 

that he would "be left with no recourse than to pursue legal 

remedies" unless Manfredy withdr ew his March 2, 1998 

termination letter. App. at 59-60. On September 11, 1998, 

defendant Kathleen Klaus, another attorney with D'Ancona 

& Pflaum, sent a letter to Remick stating: 

 We are writing in response to your letter of 

 September 2, 1998 threatening to take legal action 

 against our client Angel Manfredy. 

 As you know, Mr. Manfredy ter minated his 

 relationship with you by letter on March 2, 1998. His 

 letter made it very clear that, in light of your failure to 

 perform your obligations to him, he was left with no 

 4 
 alternative other than to sever his association with 

 you. Your September 2, 1998 letter indicates that you 

 received Mr. Manfredy's letter six months ago and, 

 because you are an attorney, we assume you 

 appreciated its import. 

 We are not aware of any legal principle which allows 

 you to "reject" the termination of an attorney client 

 relationship or any authority which requir es one party 

 to the contract to perform in the face of the other 

 party's breach. If you insist on attempting to extort 

 money from Cedric Kushner Promotions, Ltd. or any 

 other entity with which Mr. Manfredy is engaged on the 

 basis of your alleged contract with Mr. Manfr edy, we 

 will not hesitate to pursue our legal remedies, 

 including a suit for damages arising from your failure 

 to adequately represent Mr. Manfr edy. 

App. at 121. 

Remick's complaint in this case arose out of both the 

failed relationship with Manfredy and the Klaus letter. 

Defendants filed a motion to dismiss under both Rule 

12(b)(2) and Rule 12(b)(6) and an Alternative Motion to 

Transfer under Rule 17. The District Court granted the 

defendants' motion to dismiss pursuant to Rule 12(b)(2), 

concluding that there was no personal jurisdiction over the 

individual defendants. Focusing on the merits of the claims 

against the law firm, the District Court considered

defendant's Rule 12(b)(6) motion. It dismissed with

prejudice Remick's defamation claim against D'Ancona & 

Pflaum, and dismissed (without prejudice) his claims for 

interference with business and contractual relationships 

(variously called, inter alia, inter ference with contracts) and 

civil conspiracy. Remick filed a timely notice of appeal. 

II. 

APPELLATE JURISDICTION 

Although the order of the District Court dated April 22, 

1999, states that the complaint is dismissed without 

prejudice, in fact the Memorandum and Or der dated the 

 5 
same day and filed contemporaneously holds that the

complaint against the individuals is dismissed for lack of 

personal jurisdiction, that there is general personal 

jurisdiction over the law firm, and that one count of the 

complaint against the law firm, that for defamation, is 

dismissed with prejudice but that two counts against that 

defendant, the claims for tortious interfer ence with contract 

and for civil conspiracy, are dismissed with leave given to 

Remick to replead. He chose not to do so, instead filing the 

notice of appeal. 

Because of the procedural posture of the case, we asked 

Remick to comment at oral argument on our jurisdiction to 

hear this matter. In Borelli v. City of Reading, 532 F.2d 950, 

951-52 (3d Cir. 1976) (per curiam), this court, noting the 

general rule that an order dismissing a complaint without 

prejudice is not appealable, stated that "[o]nly if the 

plaintiff cannot amend or declares his intention to stand on 

his complaint does the order become final and appealable." 

Although generally a plaintiff who decides to stand on the 

complaint does so in the district court, see, e.g., In re 

Advanta Corp. Sec. Litig., 180 F.3d 525, 529-30 (3d Cir. 

1999); In re Westinghouse Sec. Litig., 90 F.3d 696, 702 (3d 

Cir. 1996), we have made clear that such a course, while 

preferable, is not always necessary. Recently, in Semerenko 

v. Cendant Corp., 223 F.3d 165, 172-73 (3d Cir. 2000), the 

plaintiffs/appellants declared their intention to stand on 

their complaint in this court, and we thereafter treated the 

district court's order dismissing the complaint, albeit 

without prejudice, as a final order dismissing with

prejudice and therefore appealable. 

During the argument in this case, Remick's attorney

stated unequivocally that Remick wished to stand on his 

complaint. Accordingly, we conclude that we have 

jurisdiction over the dismissal as a final or der under 28 

U.S.C. S 1291. 

 6 
III. 

PERSONAL JURISDICTION OVER 

INDIVIDUAL DEFENDANTS 

Remick does not deny that individual defendants 

Manfredy, John Manfredy, Brown, and Klaus are not 

residents of Pennsylvania. Manfredy is an Indiana resident, 

and the other defendants are residents of Illinois. Under 

Fed. R. Civ. P. 4(e), a district court may assert personal 

jurisdiction "over non-resident defendants to the extent 

permissible under the law of the state wher e the district 

court sits." Pennzoil Prod. Co. v. Colelli & Assocs., Inc., 149 

F.3d 197, 200 (3d Cir. 1998) (citation omitted). 

Pennsylvania's long-arm statute, 42 Pa. Cons. Stat. Ann. 

S 5322(b), authorizes Pennsylvania courts"to exercise 

personal jurisdiction over nonresident defendants to the 

constitutional limits of the due process clause of the 

fourteenth amendment." Mellon Bank (East) PSFS, Nat'l 

Ass'n v. Farino, 960 F.2d 1217, 1221 (3d Cir. 1992). 

Due process requires that the defendant have "minimum 

contacts" in the forum state, and that the exer cise of 

jurisdiction comport with "traditional notions of fair play 

and substantial justice." International Shoe Co. v.

Washington, 326 U.S. 310, 316 (1945) (quotations omitted). 

The Supreme Court has stated that "minimum contacts

must have a basis in `some act by which the defendant 

purposefully avails itself of the privilege of conducting 

activities within the forum State, thus invoking the benefits 

and protections of its laws.' " Asahi Metal Indus. Co., Ltd. v. 

Superior Court of California, 480 U.S. 102, 109 (1987) 

(quoting Burger King Corp. v. Rudzewicz , 471 U.S. 462, 475 

(1985)). 

Personal jurisdiction may be exercised under two distinct 

theories, a defendant's general or claim-specific contacts 

with the forum. General jurisdiction is based upon the 

defendant's "continuous and systematic" contacts with the 

forum and exists even if the plaintiff 's cause of action 

arises from the defendant's non-forum r elated activities. 

See Vetrotex CertainTeed Corp. v. Consol. Fiber Glass Prod. 

Co., 75 F.3d 147, 151 n.3 (3d Cir . 1996) (citations omitted). 

 7 
In contrast, specific jurisdiction is present only if the 

plaintiff 's cause of action arises out of a defendant's forumrelated activities, such that the defendant" `should 

reasonably anticipate being haled into court' " in that 

forum. Id. at 151 (quoting World-Wide Volkswagen Corp. v. 

Woodson, 444 U.S. 286, 297 (1980)). 

The District Court found that it had general jurisdiction 

over the D'Ancona & Pflaum law firm, but that it did not 

have general jurisdiction over the individual defendants. 

Neither of these determinations has been questioned on 

appeal. Therefore, we confine our inquiry to whether the 

District Court can exercise specific jurisdiction over the 

individual defendants. 

Such a determination is claim specific because a 

conclusion that the District Court has personal jurisdiction 

over one of the defendants as to a particular claim asserted 

by Remick does not necessarily mean that it has personal 

jurisdiction over that same defendant as to Remick's other 

claims. See Gehling v. St. George's Sch. of Med., Ltd., 773 

F.2d 539 (3d Cir. 1985) (finding personal jurisdiction over 

defendant in wrongful death action with r egard to 

fraudulent misrepresentation and emotional distress claims 

but not as to plaintiffs' negligence and br each of contract 

claims); see also Carteret Sav. Bank, F A v. Shushan, 954 

F.2d 141 (3d Cir. 1992) (examining the issue of personal 

jurisdiction as to plaintiff 's fraud claim separately from 

plaintiff 's breach of fiduciary duty claim); Provident Nat'l 

Bank v. California Fed. Sav. & Loan Ass'n, 819 F.2d 434, 

437 (3d Cir. 1987) (describing specific jurisdiction as 

present when "the particular cause of action sued upon 

arose from the defendant's activities within the forum 

state"). 

In holding that it did not have specific personal 

jurisdiction over the individual defendants, the District 

Court did not conduct a claim-specific analysis except as to 

the breach of contract claim. It may not be necessary to do 

so in every multiple claim case, but because ther e are 

different considerations in analyzing jurisdiction over 

contract claims and over certain tort claims, we believe 

such differentiation is requir ed here. 

 8 
A. Specific Jurisdiction Over Manfr edy for Breach of 

Contract Claim 

Remick's claims against Angel Manfredy ar e breach of 

contract and the tort claims of defamation, civil conspiracy, 

and misappropriation of image and likeness. In determining 

jurisdiction over a breach of contract claim, we must 

consider the totality of the circumstances, including the 

location and character of the contract negotiations, the 

terms of the contract, and the parties' actual course of 

dealing. See Farino, 960 F.2d at 1223. 

The District Court based its decision that ther e was no 

jurisdiction over Manfredy on the breach of contract claim 

primarily on this court's decision in Vetrotex, where we held 

that the circumstances attending two supply agr eements 

did not support the district court's exercise of specific 

personal jurisdiction. 75 F.3d at 152. W e stated that 

" `informational communications in furtherance of [a 

contract between a resident and a nonresident] does [sic] 

not establish the purposeful activity necessary for a valid 

assertion of personal jurisdiction over [the nonr esident 

defendant].' " Id. (quoting Sunbelt Corp. v. Noble, Denton & 

Assoc., Inc., 5 F.3d 28, 32 (3d Cir . 1993)). Nevertheless, we 

expressly acknowledged that in many instances, personal 

jurisdiction can arise primarily from a nonr esident 

defendant's contract with a forum resident. In Vetrotex, we 

distinguished 

 other cases where jurisdiction over a nonr esident 

 defendant has been premised largely on the 

 defendant's contract with a resident of the forum state. 

 For instance, this is not a case where the defendant 

 solicited the contract or initiated the business 

 relationship leading up to the contract. Nor is this a 

 case where the defendant sent any payments to the 

 plaintiff in the forum state, or where the defendant 

 engaged in extensive post-sale contacts with the 

 plaintiff in the forum state. 

Id. at 152-53 (citations omitted). 

Remick's contract claim is comparable to those 

distinguished in Vetrotex. According to Remick's affidavit, 

Manfredy sought Remick out by placing a telephone call to 

 9 
Remick's associate Resnick at their office in Philadelphia. 

This solicitation eventually resulted in the fee agreement 

between Remick and Manfredy, which Remick signed in, 

and Manfredy signed and returned to, Pennsylvania. The 

agreement noted that its formality was r equired by the 

Pennsylvania Rules of Professional Conduct, suggesting 

that Manfredy was receiving the benefit of Pennsylvania law 

under the agreement. In addition, at least one payment was 

sent by Manfredy to Remick at his Philadelphia office. Most 

of the services performed by Remick on behalf of Manfredy 

were conducted at Remick's Philadelphia office, and

Manfredy certainly should have expected as much as he 

knew that Remick's home office is in Philadelphia. 

Finally, there were repeated "informational 

communications" during the course of the contractual 

relationship between Manfredy and Remick with Remick at 

his Philadelphia office, including the final communication 

-- Manfredy's termination letter of Mar ch 2, 1998. See 

Grand Entm't Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 

476, 482 (3d Cir. 1993) ("Mail and telephone 

communications sent by the defendant into the forum may 

count toward the minimum contacts that support 

jurisdiction."). These facts as a whole involved more 

entangling contacts than the mere "infor mational 

communications" at issue in Vetr otex. 

Decisions in two other cases also support finding 

personal jurisdiction here. In Farino, we upheld jurisdiction 

over out-of-state defendants who had approached a 

Pennsylvania bank seeking to borrow money. W e quoted 

from the Supreme Court's decision in Burger King, where 

the Court commented that jurisdiction is proper where 

parties "reach out beyond one state and cr eate continuing 

relationships and obligations with citizens of another state." 

Farino, 960 F.2d at 1222 (quoting Bur ger King, 471 U.S. at 

473). Analogizing to that situation, we stated in Farino that 

by approaching the bank, the defendants "establish[ed] a 

business relationship with a Pennsylvania entity" and 

"knowingly created continuing obligations with a citizen of 

Pennsylvania." Id. at 1223. We commented that "[w]hen a 

defendant has received the benefits and pr otections of the 

forum's laws by engaging in business activities with a 

 10 
forum resident, the courts have `consistently rejected the 

notion that an absence of physical contacts can defeat 

personal jurisdiction there.' " Id. at 1225 (quoting Burger 

King, 471 U.S. at 476); see also Time Share Vacation Club 

v. Atlantic Resorts, Ltd., 735 F.2d 61, 65-66 (3d Cir. 1984) 

("What is required . . . is actual evidence that, by entering 

into the contract, the particular defendant could foresee 

impact within Pennsylvania."). 

In a situation similar to that before us, in which a 

Virginia law firm sued a California attorney in Virginia to 

collect fees after the attorney had retained the law firm as 

co-counsel to assist him in a California case, the Court of 

Appeals for the Fourth Circuit stated: 

 [The defendant] initiated the relationship with [the 

 plaintiff], knowing that [the plaintif f] was a Virginia 

 lawyer who likely would do the requested work in 

 Virginia. [The defendant] contracted with [the plaintiff] 

 in Virginia, first by telephone and later in a writing that 

 [the plaintiff], as the last party to sign, executed in 

 Virginia. [The plaintiff] performed all of his duties 

 under the contract in Virginia. Finally, the parties 

 exchanged numerous telephone calls and written 

 communications. Few examples of transacting 

 business are more classic than [the defendant's] 

 decision to associate a Virginia lawfirm on a case and 

 his subsequent dealings with that firm. Because [the 

 defendant] transacted business in Vir ginia, and 

 because [the plaintiff 's] cause of action arose directly 

 from those activities, the Virginia long-arm statute is 

 satisfied. 

English & Smith v. Metzger, 901 F.2d 36, 39 (4th Cir. 1990) 

(footnote omitted). Significantly, Vir ginia's long-arm statute 

has been interpreted, like Pennsylvania's,"to extend 

jurisdiction to the extent permissible under the due process 

clause." Id. at 38. 

In light of the limiting language in Vetr otex, the factual 

distinctions between Vetrotex and the case at hand, and the 

decisions in Farino and English & Smith , we conclude that 

the District Court has personal jurisdiction over Manfredy 

for Remick's breach of contract claim and that the District 

Court erred as a matter of law in holding to the contrary. 

 11 
B. Specific Jurisdiction over Individual Defendants for 

Defamation 

Remick asserts his defamation claim against all four 

individual defendants as well as the law fir m. Here we 

consider only whether there is jurisdiction against the 

individual defendants on this claim. 

Remick's defamation claim arises out of two letters, both 

sent to Remick with no copies showing any other 

Pennsylvania recipient. The first letter , dated March 2, 

1998, was from Manfredy to Remick ter minating his 

representation because of alleged br oken promises and 

failures as a negotiator. In his affidavit, Remick states that 

the letter was faxed to him and that, while it was sitting on 

the office fax machine, his daughter (who we assume was 

working in the office) and an office secr etary "picked up the 

letter and reviewed it." App. at 68. This, Remick contends, 

constituted publication in Pennsylvania. The complaint also 

alleges that the charges in the letter wer e published "in 

whole or in part" by Brown and John Manfr edy to "other 

members of the professional boxing community," including 

Kushner. App. at 95-96. The second letter , dated September 

11, 1998, was sent by Klaus to Remick and reiterated 

Manfredy's statements in the March 2nd letter that Remick 

was fired for inadequately representing Manfredy and urged 

him to stop "insist[ing] on attempting to extort money." 

App. at 121. Remick alleges that the letter and the charges 

therein were published and distributed"elsewhere into the 

boxing community." App. at 97. 

Remick argues that the District Court has specific 

personal jurisdiction over the individual defendants as to 

his defamation claim because the allegedly defamatory 

statements targeted a Pennsylvania resident's forum-related 

activities and were published in Pennsylvania. Remick 

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

Supreme Court set forth the "effects test" for determining 

personal jurisdiction over nonresident defendants who 

allegedly committed an intentional tort outside the forum. 

Calder involved an allegedly libelous National Enquirer 

article written and edited in Florida and published

nationwide concerning the California activities of a 

California resident. Because the Califor nia resident was an 

 12 
entertainer in Hollywood, the story had its gr eatest impact 

in California. The Court held that Califor nia had personal 

jurisdiction over the author and editor because the"effects" 

of their Florida conduct were chiefly felt in California, the 

state in which plaintiff lived and worked. See id. at 789. 

The Court emphasized that the alleged tort was not"mere 

untargeted negligence" but rather "intentional, and

allegedly tortious, actions . . . expressly aimed at [the forum 

state]." Id. 

This court applied Calder in Imo Industries, Inc. v. Kiekert 

AG, 155 F.3d 254 (3d Cir. 1998), where we held that the 

Calder "effects test" requir es the plaintiff to show that: 

 (1) The defendant committed an intentional tort ; 

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

 such that the forum can be said to be the focal point 

 of the harm suffered by the plaintiff as a result of that 

 tort; 

 (3) The defendant expressly aimed his tortious conduct 

 at the forum such that the forum can be said to be the 

 focal point of the tortious activity. 

Id. at 265-66 (footnote omitted) (emphasis added). 

In Imo Industries, we held that New Jersey did not have 

personal jurisdiction over a German corporation for

tortiously interfering with the plaintif f 's attempt to sell its 

Italian subsidiary to a French corporation because New 

Jersey, where the plaintiff 's headquarters was located, was 

not the focus of the dispute. We stated that"[s]imply 

asserting that the defendant knew that the plaintif f 's 

principal place of business was located in the forum would 

be insufficient in itself . . . . The defendant must manifest 

behavior intentionally targeted at and focused on the forum 

for Calder to be satisfied." Id. at 265 (quotation omitted) 

(footnote omitted). We added that "the plaintiff must show 

that the defendant knew that the plaintiff would suffer the 

brunt of the harm caused by the tortious conduct in the 

forum, and point to specific activity indicating that the 

defendant expressly aimed its tortious conduct at the 

forum." Id. at 266. 

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

where the allegedly defamatory letters wer e written outside 

Pennsylvania, see Calder, 465 U.S. at 789 (finding that 

defamatory article written in Florida was "Florida conduct"), 

we conclude that Remick satisfies the first two parts. 

Defamation is an intentional tort and, because Remick's 

professional activities are center ed in Pennsylvania and the 

allegedly defamatory letters question Remick's pr ofessional 

ability, Remick may reasonably contend that he suffered 

the brunt of the harm in Pennsylvania. See Keeton v. 

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

that individuals endure the bulk of har m from torts like 

defamation in their home states). 

However, we believe that Remick has not met the last 

requirement of Imo Industries. Remick argues that because 

two persons in his office read the Mar ch 2nd letter while it 

was on the fax machine, it was published in Pennsylvania 

and therefore the targeting r equirement was satisfied. At 

oral argument, he amplified that position, contending that 

such publication alone was sufficient to subject the sender 

to personal jurisdiction. We are not persuaded because it is 

clear from Remick's own affidavit that the two persons in 

his office read the March 2nd letter solely because it was 

lying on the fax machine. There is no indication that the 

letter was targeted at them or at anyone in Pennsylvania 

other than Remick. Cf. Calder, 465 U.S. at 785 (finding that 

600,000 copies of National Enquirer regularly sold in 

California). Therefore, this publication provides no basis for 

jurisdiction. 

According to Remick, the allegedly defamatory letters and 

the charges therein were published throughout the boxing 

community, not just in Philadelphia. Significantly, Remick 

has not asserted that Pennsylvania has a unique 

relationship with the boxing industry, as distinguished 

from the relationship in Calder between California and the 

motion picture industry, with which the Calder plaintiff was 

associated. See Imo Industries, 155 F .3d at 264 n.7. Even 

if the letter itself, other than merely the charges in the 

letter as the complaint alleges, were distributed or shared 

with other persons in the professional boxing community, 

such persons were apparently located thr oughout the 

 14 
country. Unlike the defendants in Calder, whose national 

magazine is published in California mor e than any other 

state and whose story focused on California, see Calder 465 

U.S. at 788-89, it cannot be said that the defendants here 

expressly aimed their conduct at Pennsylvania so that 

Pennsylvania was the focal point of the tortious activity. 

The same analysis applies to the second letter . Therefore, 

the three-part test of Imo Industries was not met. It follows 

that the District Court did not err as a matter of law in 

holding that it lacked personal jurisdiction over the 

individual defendants with regard to Remick's defamation 

claim. 

C. Specific Jurisdiction over Angel and John Manfredy 

for Misappropriation of Image and Likeness 

For the same reason, we conclude that the District Court 

does not have specific jurisdiction over the Manfr edy 

brothers on Remick's misappropriation of image claim, a 

claim that Remick brings only against the two of them. 

That claim is based on the posting on Manfredy's old 

website without Remick's authorization of a single 

photograph of numerous persons that included Remick. 

The Calder "effects test" is clearly not satisfied. Given that 

the website was intended to provide infor mation on

Manfredy and that it was accessible worldwide, there is no 

basis to conclude that the defendants expressly aimed their 

allegedly tortious activity at Pennsylvania knowing that 

harm was likely to be caused there. See Imo Industries, 155 

F.3d at 264 (quoting Cybersell, Inc. v. Cybersell, Inc., 130 

F.3d 414, 420 (9th Cir. 1997)).3 Any resulting harm to 

Remick was merely incidental. Therefor e, we agree with the 

District Court's determination that it lacked personal 

jurisdiction over the Manfredy brothers on Remick's

misappropriation of image and likeness claim. 

_________________________________________________________________ 

3. The facts in this case do not requir e that we consider the current 

debate as to which fora have jurisdiction over a defendant who seeks to 

use its website for the solicitation of or transaction of business. The 

District Court summarized its view of the law in the area, in which it had 

concluded that the mere posting of infor mation or advertisements on an 

Internet website does not confer nationwide personal jurisdiction. See 

Remick, 52 F. Supp. 2d at 457. We do not disagree. 

 15 
D. Specific Jurisdiction over John Manfr edy and Brown 

for Tortious Interference 

The final tort claim against individual defendants before 

us on appeal is Remick's claim against defendants John 

Manfredy and Brown for tortious inter ference with 

contractual relations, which the District Court dismissed 

for lack of personal jurisdiction. Remick alleges that John 

Manfredy and Brown, among other things,"set[ ] Remick up 

to fail in the negotiations over the Azumah Nelsonfight and 

. . . publish[ed] and disseminat[ed] false and defamatory 

information about Remick's skill and ability" with the intent 

"to interfere[ ] and cause harm" to Remick's contract with 

Manfredy. App. at 99. In his appellate brief, Remick claims 

that John Manfredy and Brown engaged in this activity so 

that Angel Manfredy would replace Remick with D'Ancona 

& Pflaum and Brown. See Br. of Appellant at 40-41. 

Tortious interference is an intentional tort, and therefore 

we must apply the Calder holding, as we did in Imo 

Industries, to determine the existence of personal 

jurisdiction. See 155 F.3d at 266-68. 

As we noted in discussing jurisdiction over the 

individuals on Remick's defamation claim, the brunt of the 

harm caused by the alleged intentional tort must 

necessarily have been felt by Remick in Pennsylvania, as 

his business practice is based in Philadelphia. Although we 

concluded there that Remick could not show the 

defendants expressly aimed their tortious conduct at 

Pennsylvania so that this forum can be viewed as the focal 

point of the tortious activity, Remick has mor e basis to 

support jurisdiction on this claim. Albeit a tort, it is 

necessarily related to the contract which he had entered 

into with Manfredy and which is the subject of the alleged 

tortious interference. Remick asserts in his affidavit that he 

conducted the majority of his negotiation, consultation, and 

advice services for Manfredy out of his Philadelphia office. 

App. at 68. Accepting that assertion as true, it follows that 

the effects of any intentional conduct by the defendants 

designed to interfere with Remick's contractual relations 

with Manfredy necessarily would have been felt in 

Pennsylvania. 

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

German defendant's alleged tortious conduct appeared to 

have been expressly aimed at injuring a Fr ench company 

and not the in-forum plaintiff, in this case Brown and John 

Manfredy's alleged tortious conduct was expr essly aimed at 

injuring Remick in Pennsylvania where he lives and works. 

That is sufficient to satisfy both Calder and IMO Industries. 

Thus, we conclude that the District Court err ed as a matter 

of law in holding that it lacked specific jurisdiction over the 

individual defendants with respect to Remick's claim for 

tortious interference. 

IV. 

CLAIMS AGAINST THE LAW FIRM 

A. The Defamation Claim 

Although we conclude that the District Court does not 

have personal jurisdiction over Remick's defamation claim 

against the four individual defendants, we must r each the 

merits of that claim because the court dismissed the 

defamation claim against the law firm of D'Ancona &

Pflaum over whom it admittedly had general jurisdiction.4 

That firm is claimed to be vicariously liable as the employer 

of both Brown and Klaus when Angel Manfr edy sent his 

letter to Remick dated March 2, 1998 and Klaus sent her 

letter dated September 11, 1998.5 The District Court held 

that Remick's complaint failed to state a claim of 

defamation. The sufficiency of Remick's pleading raises a 

question of law over which we have plenary r eview. See 

Moore v. Tartler, 986 F.2d 682, 685 (3d Cir. 1993).

_________________________________________________________________ 

4. The District Court noted the law firm's admission "that it has records 

of having serviced 54 clients in Pennsylvania, some of which are present 

clients." Remick, 52 F. Supp. 2d at 459. This led the court to conclude 

that the law firm "purposefully availed itself of the privilege of 

conducting 

activities within this state to justify the exer cise of general personal 

jurisdiction over it." Id. 

5. Although Brown did not sign the Mar ch 2nd letter, the complaint 

makes the general assertion that this letter "was prepared by, and/or 

published and disseminated to, other members of the Manfredy team," 

which included Brown. App. at 95. 

 17 
As the District Court recognized, to succeed on a claim 

for defamation under Pennsylvania law, a plaintif f must 

show, inter alia, a communication capable of having

defamatory meaning. See Remick, 52 F . Supp. 2d at 460; 

see also 42 Pa. Cons. Stat. Ann. S 8343(a)(1) (The plaintiff 

in a defamation case has the burden of pr oving the

"defamatory character of the communication."). The trial 

court must determine as a matter of law whether the

communication is capable of having defamatory meaning; if 

not, the claim should be dismissed. See Baker v. Lafayette 

College, 516 Pa. 291, 296, 532 A.2d 399, 402 (1987). 

Under Pennsylvania law, a statement is defamatory if it 

"tends so to harm the reputation of another as to lower him 

in the estimation of the community or to deter thir d 

persons from associating or dealing with him." Tucker v. 

Fischbein, No. 99-1139, slip op. at 9 (3d Cir . January 9, 

2001) (quoting Corabi v. Curtis Publ'g Co., 441 Pa. 432, 

442, 273 A.2d 899, 904 (1971)). In determining whether a 

communication is defamatory, the court must view the 

statement "in context" with an eye towar d "the effect the 

[statement] is fairly calculated to pr oduce, the impression it 

would naturally engender, in the minds of the average 

persons among whom it is intended to circulate." Baker, 

516 Pa. at 296, 532 A.2d at 402 (quoting Corabi , 441 Pa. 

at 447, 273 A.2d at 907). Viewing statements in their 

appropriate contexts, courts must deter mine whether they 

"tend[ ] to blacken a person's r eputation or to expose him to 

public hatred, contempt, or ridicule, or to injure him in his 

business or profession." Corabi, 441 Pa. at 441, 273 A.2d 

at 904. 

The District Court focused on the September 11th letter 

and did not address whether Remick's defamation claim 

can be based on the March 2nd letter fr om Manfredy. 

Remick's complaint alleges that the March 2nd letter 

accused him of: (1) failing to adequately repr esent 

Manfredy's interests, (2) failing to r ecognize and discharge 

his obligations to Manfredy, (3) failing to live up to promises 

he had made to Manfredy, and (4) being an inef fective 

negotiator and attorney. 

Each of these statements expressed Manfr edy's subjective 

opinion. In Pennsylvania, an opinion cannot be defamatory 

 18 
unless it "may reasonably be understood to imply the 

existence of undisclosed defamatory facts justifying the 

opinion." Baker, 516 Pa. at 297, 532 A.2d at 402 (emphasis 

added) (quotation omitted). In his March 2nd letter, 

Manfredy disclosed the factual basis behind each of his 

accusations. He noted five instances in which Remick failed 

to adequately represent his interests, including (1) Remick's 

business partner's refusal to convey a counter offer in 

negotiations for the possible Rueles fight, (2) Remick's 

failure to deliver a million-dollar purse following the Gatti 

fight, (3) Remick's failure to increase the purse for the Paez 

fight, (4) Remick's failure to increase the purse for the 

possible Nelson fight (although not referr ed to directly by 

name), and (5) Remick's failure to deliver a single

endorsement opportunity through negotiations with 

Kushner. 

In light of the disclosure of these factual bases, the 

opinions set forth by Manfredy in his Mar ch 2nd letter 

cannot be considered defamatory. See Redco Corp. v. CBS, 

Inc., 758 F.2d 970, 972 (3d Cir. 1985) (finding opinion 

disclosing underlying facts not defamatory because"a 

listener may choose to accept or reject [the opinion] on the 

basis of an independent evaluation of the facts"); Parano v. 

O'Connor, 433 Pa. Super. 570, 575, 641 A.2d 607, 609 (Pa. 

Super. Ct. 1994) (finding incapable of being defamatory 

comments that appellant was adversarial, less than helpful, 

and uncooperative because they were subjective opinions 

based upon disclosed facts). Rather, they ar e "frank 

opinion[s] void of innuendo." Baker, 516 Pa. at 297, 532 

A.2d at 402. 

As for Klaus' September 11th letter, Remick asserts that 

the following statement is defamatory: "If you insist on 

attempting to extort money . . . , we will not hesitate to 

pursue our legal remedies, including a suit for damages 

arising from your failure to adequately represent Mr. 

Manfredy." App. at 121 (emphasis added). The District 

Court, assuming publication to third parties, found the 

statement to be nothing "other than an expr ession of 

opinion and dissatisfaction with Mr. Remick's performance 

on Mr. Manfredy's behalf." Remick , 52 F. Supp. 2d at 460. 

The court recognized that Remick might have found the 

 19 
letter to be personally insulting, but it held that the letter 

was not capable of having defamatory meaning. 

At oral argument, Remick presented the Klaus letter as 

stating that if Remick "continue[s] to extort" money from 

Kushner, Klaus and Manfredy would not hesitate to pursue 

legal remedies (emphasis added). The language of the letter 

does not so state. Admittedly, the word "extort" is a strong 

one. In some contexts, when published to thir d parties not 

involved in the dispute, the statement that one person is 

extorting money from another has been viewed as 

defamatory under Pennsylvania law. See, e.g., Frederick v. 

Reed Smith Shaw & McClay, 1994 WL 57213, at *11 (E.D. 

Pa. February 18, 1994) (finding statement that"accuses 

[plaintiff] with committing the crime of extortion" capable of 

being defamatory); Corabi, 441 Pa. at 447, 273 A.2d at 907 

(finding statements that "convey[ ] to the average reader 

imputations of involvement in or actual guilt of crimes 

involving moral turpitude" capable of being defamatory); 

Pelagatti v. Cohen, 370 Pa. Super. 422, 439, 536 A.2d 

1337, 1345 (Pa. Super. Ct. 1987) (finding that "statements 

to the effect that an attorney has committed improper, 

illegal actions within the context of his practice, would tend 

to impugn his integrity, and thereby blacken his business 

reputation"); see also DaimlerChrysler Corp. v. Askinazi, 

2000 WL 964753, at *5 (E.D. Pa., July 12, 2000) (finding 

statement that plaintiff 's lawsuit was"a form of legalized 

blackmail" defamatory because it accused plaintif f of 

"improper professional conduct"); cf. Thomas Merton Ctr. v. 

Rockwell Int'l Corp., 497 Pa. 460, 466, 442 A.2d 213, 216 

(1981) (noting that "a publication is defamatory if it 

ascribes to another `conduct, character or a condition that 

would adversely affect his fitness for the proper conduct of 

his lawful business, trade or profession' ") (quoting 

Restatement (Second) of Torts S 573 (1977)). 

We believe this case differs fr om those, and that the 

Pennsylvania courts would agree. The September 11th

letter was written in the context of two lawyers taking 

diametrically opposing legal positions. Moreover, Klaus was 

responding to Remick's September 2nd letter to Manfredy, 

in which he demanded that Manfredy revoke his 

termination letter and threatened to pursue legal remedies 

 20 
of his own. Correspondence between jousting lawyers is not 

always drafted with the finesse, tact, and niceties used by 

a 19th century novelist, and, as we have previously stated, 

"[i]t is well settled that the use of catchy phrases or 

hyperbole does not necessarily render statements 

defamatory that would otherwise be non-actionable." Redco, 

758 F.2d at 972. In this instance, the use of the term 

"extort" is non-defamatory "rhetorical hyperbole, a vigorous 

epithet used by those who considered [plaintiff 's]

negotiating position extremely unreasonable." Greenbelt 

Coop. Publ'g Ass'n, Inc. v. Bresler, 398 U.S. 6, 14 (1970) 

(finding "blackmail" accusation not defamatory because no 

reader could have thought that plaintif f was being charged 

"with the commission of a criminal offense"). 

While the letter from Klaus probably should have been 

toned down, and we encourage counsel to maintain civility 

in their correspondence with each other r egardless of the 

animosity between clients, the audience to which this 

statement was allegedly published knew that it ar ose from 

bitter attorney communications. 

In his complaint, Remick also alleges that Klaus' 

September 11th letter was defamatory because she accused 

him of "having committed professional malpractice." App. at 

97. Although Remick doesn't identify Klaus' specific 

comments in either his complaint or his affidavit, in her 

letter Klaus refers to Remick's "failur e to perform [his] 

obligations to [Manfredy]" and his"failure to adequately 

represent Mr. Manfredy." App. at 121. 

Significantly, Klaus stated in her letter that Manfredy's 

March 2nd letter made her assertions of pr ofessional 

failings "very clear." App. at 121. By reiterating and 

specifically incorporating Manfredy's earlier letter into her 

own letter, Klaus made known that any facts not disclosed 

in her letter were disclosed in the earlier letter. In light of 

the context in which this letter was written, Klaus' 

comments regarding Remick's professional competence

would be viewed under Pennsylvania law as opinion and 

hence not defamatory. It follows that the District Court did 

not err in dismissing with prejudice Remick's claim for 

defamation against the law firm. 

 21 
B. Claims of Tortious Interfer ence with Contract and 

Conspiracy 

Remick's remaining contention on appeal is that the

District Court erred in dismissing his tortious interference 

with contract and conspiracy claims against D'Ancona & 

Pflaum. As noted earlier, the basis for Remick's tortious 

interference claim is that Brown, while associated with the 

law firm, "set [Remick] up to fail in negotiations by directing 

him to make outlandish demands for [the Nelson] bout that 

Angel Manfredy was not even physically capable of 

fighting." Br. of Appellant at 40. Remick's conspiracy claim 

is predicated on the tortious interfer ence claim. 

To set forth a viable cause of action for tortious 

interference with contract under Pennsylvania law, 

plaintiffs must plead the following elements: 

 (1) the existence of a contractual, or prospective 

 contractual relation between the complainant and a 

 third party; 

 (2) purposeful action on the part of the defendant, 

 specifically intended to harm the existing r elation, or to 

 prevent a prospective relation fr om occurring; 

 (3) the absence of privilege or justification on the part 

 of the defendant; and 

 (4) the occasioning of actual legal damage as a r esult of 

 the defendant's conduct. 

Pelagatti, 370 Pa. Super. at 434, 536 A.2d at 1343.

The District Court dismissed Remick's tortious 

interference claim because it failed to r easonably inform the 

adverse party of the asserted cause of action, which the 

court deemed to be the requirement of Fed. R. Civ. P. 

8(a)(2). The court found Remick's complaint deficient 

because Remick did not "advise the defendant of how its 

employee allegedly `set up' the plaintiff to fail in fight 

negotiations and what false and defamatory infor mation 

[Brown] is accused of disseminating and to whom." Remick, 

52 F. Supp. 2d at 461. 

Although the District Court dismissed the tortious 

interference with contract claim and the conspiracy claim 

 22 
with leave to replead, in dismissing the court imposed a 

pleading requirement beyond that r equired by the Federal 

Rules of Civil Procedure. Under the still applicable system 

of notice pleading, all Remick was requir ed to do was 

provide "a short and plain statement of[his] claim showing 

that [he] is entitled to relief." Fed. R. Civ. P. 8(a)(2). Remick 

satisfied this requirement, as he put the defendants on 

notice as to the circumstances surrounding the alleged 

tortious behavior. There are discovery mechanisms, such as 

interrogatories, for ascertaining more details regarding the 

complaint allegations. Therefore, we cannot affirm the 

District Court's dismissal of Remick's claims for tortious 

interference and conspiracy against D'Ancona & Pflaum. 

V. 

CONCLUSION 

For the foregoing reasons, we will r everse the District 

Court's order dismissing for lack of jurisdiction Remick's 

claim against Angel Manfredy for breach of contract and his 

claim against John Manfredy and Jeffr ey Brown for tortious 

interference with contractual relationships. In all other 

respects we will affirm the District Court's order dismissing 

the claims against the individual defendants. W e will affirm 

the dismissal with prejudice of Remick's claim against 

D'Ancona & Pflaum for defamation. We will r everse the 

order insofar as it dismissed under Rule 12(b)(6) Remick's 

claims against the law firm for tortious interference with 

contract and conspiracy. On remand, the District Court 

may want to address promptly the defendants' alternative 

motion to transfer. Each party to bear its own costs. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 23