NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2058-12T3

BAANYAN SOFTWARE SERVICES, INC.,

Plaintiff-Appellant,

v.

HIMA BINDHU KUNCHA,

Defendant-Respondent.

Submitted December 10, 2013 – Decided

Before Judges Reisner, Alvarez and Carroll.

On appeal from Superior Court of New Jersey, 

Law Division, Middlesex County, Docket No. 

L-2529-12.

Archer & Greiner, attorneys for appellant 

(Patrick Papalia, of counsel; Leo J. Hurley, 

Jr., on the brief).

Hima Bindhu Kuncha, respondent pro se.

The opinion of the court was delivered by

CARROLL, J.S.C. [temporarily assigned].

Plaintiff Baanyan Software Services, Inc. (Baanyan), 

appeals from a December 7, 2012 Law Division order dismissing 

its complaint for lack of personal jurisdiction over defendant 

APPROVED FOR PUBLICATION

December 19, 2013

APPELLATE DIVISION

December 19, 2013
2 A-2058-12T3

Hima Bindhu Kuncha.1 Since we conclude that defendant lacked 

minimum contacts with New Jersey, and that to subject defendant 

to jurisdiction in New Jersey would offend traditional notions 

of fair play and substantial justice, we affirm. 

I.

We discern the following facts from the limited record 

before the Law Division on the motion to dismiss. Because no 

jurisdictional discovery was ordered, nor apparently requested, 

we rely upon the complaint and the certifications that were 

filed supporting and opposing defendant's dismissal motion. 

Baanyan is an information technology development and 

software consulting company with its headquarters in Edison, New 

Jersey. According to Baanyan's website, it is part of a 

multinational corporate organization that, "[r]eaching out from 

its locations in [the] USA and India, is able to locate and 

attract the very best computing talent from all over the globe." 

Baanyan employed defendant as a computer systems analyst, 

pursuant to a written consulting agreement. Defendant was 

living in California in January 2011 when the agreement was 

 

1 In her brief, defendant challenges an $825 counsel fee award 

imposed against her as a sanction. We decline to disturb the 

November 5, 2012 order imposing that sanction, as defendant has 

not cross-appealed from that order. "It is clear that only the 

. . . orders . . . designated in the notice of appeal . . . are 

subject to the appeal process and review." Pressler & Verniero, 

Current N.J. Court Rules, Comment 6.1 on R. 2:5-1 (2014).
3 A-2058-12T3

signed. Defendant negotiated certain terms of the contract 

through various e-mails and telephone calls with representatives 

of Baanyan. Defendant sent an executed copy of the consulting 

agreement to Baanyan, which executed it at its New Jersey 

headquarters. The agreement itself is silent as to Baanyan's 

address. It also contains no forum selection clause.

The terms of employment required defendant to relocate from 

California to Illinois to provide the consulting services. 

Defendant moved to Illinois in February 2011, and began 

providing services as needed for two of Baanyan's clients, both 

located in Illinois. From May 2011 through August 2011, 

defendant was out of the country, and provided no services for 

Baanyan. After defendant returned to Illinois, during September 

2011 she resumed working for Baanyan on a project for one of its 

corporate clients, Halcyon, Inc., a company based in Ohio. 

Baanyan paid defendant for her services in Illinois via direct 

deposit into her Illinois bank account. The five payments she 

received were memorialized by receipts bearing Baanyan's New 

Jersey address. At no time during her brief employment with 

Baanyan did defendant ever work in New Jersey, nor did she ever 

provide services for any client of Baanyan that was located in 

New Jersey. 
4 A-2058-12T3

In October 2011, defendant ceased working for Baanyan and 

began working for Halcyon. She continued to work for Halcyon 

until December 23, 2011. According to defendant's unrefuted 

certification, both she and Halcyon "settled the dispute with 

Baanyan about my having gone to work for Halcyon. In fact, 

Baanyan was paid monies on that dispute, not only by Halcyon, 

but by me." In January 2012, defendant moved to Tennessee, and 

obtained employment with another software company headquartered 

in California. Defendant continues to live and work in 

Tennessee. 

On April 10, 2012, Baanyan filed suit against defendant in 

the Law Division, Middlesex County, alleging breach of contract, 

tortious interference with Baanyan's business relationships, 

breach of fiduciary obligations, unjust enrichment, and fraud. 

Defendant initially did not respond to Baanyan's complaint, 

which resulted in the entry of default against her on August 8, 

2012. Thereafter, defendant moved to dismiss plaintiff's 

complaint for lack of personal jurisdiction. Alternatively, 

defendant sought to vacate the prior default.

On December 7, 2012, Judge Jane B. Cantor granted 

defendant's motion to dismiss. In a written decision that 

accompanied her order, the judge, citing a recent unpublished 

decision of this court presenting a similar factual scenario, 
5 A-2058-12T3

concluded that the circumstances here were insufficient to 

establish personal jurisdiction over defendant. Specifically, 

Judge Cantor reasoned:

[D]efendant in this case has not done 

business or resided in New Jersey. At all 

pertinent times the defendant worked in 

Illinois for two of plaintiff's corporate 

clients, both in Illinois. All contacts 

concerning the hiring took place while the 

defendant was in California. Any breach of 

the contract that might have taken place 

took place while defendant was in Illinois. 

As a result, Judge Cantor dismissed plaintiff's complaint due to 

lack of personal jurisdiction. 

II.

On appeal, Baanyan argues that defendant's contacts with 

New Jersey, which consist of entering into a consulting 

agreement with a New Jersey corporation, providing services for 

and accepting payment from the New Jersey corporation, with 

receipts bearing the corporation's New Jersey address, and 

providing timesheets to the corporation, are together sufficient 

to establish personal jurisdiction over defendant in New Jersey. 

Baanyan further argues that New Jersey's exercise of 

jurisdiction over defendant would not offend traditional notions 

of fair play and justice, because defendant entered into an 

agreement that she knew would have substantial effects in New 

Jersey. Finally, Baanyan submits that the fact that defendant 
6 A-2058-12T3

was not physically present in New Jersey is not dispositive of 

whether New Jersey can exercise jurisdiction over her. For the 

reasons that follow, we find these arguments unpersuasive. 

New Jersey courts may exercise personal jurisdiction over a 

non-resident defendant "consistent with due process of law." R.

4:4-4(e). New Jersey's long arm jurisdiction extends "to the 

uttermost limits permitted by the United States Constitution." 

Avdel Corp. v. Mecure, 58 N.J. 264, 268 (1971).

Following the landmark decision by the United States 

Supreme Court in International Shoe Co. v. Washington, 326 U.S.

310, 66 S. Ct. 154, 90 L. Ed. 95 (1945), a two-part test has 

consistently been applied in determining the extent to which 

courts can assert personal jurisdiction over out-of-state 

residents. First, "due process requires only that in order to 

subject a defendant to a judgment in personam, if he be not 

present within the territory of the forum, he have certain 

minimum contacts with it[.]" Id. at 316, 66 S. Ct. at 158, 90 

L. Ed. at 102. Second, the minimum contacts must be of a nature 

and extent "such that the maintenance of the suit does not 

offend 'traditional notions of fair play and substantial 

justice.'" Ibid. (quoting Milliken v. Meyer, 311 U.S. 457, 463, 

61 S. Ct. 339, 343, 85 L. Ed. 278, 283 (1940)); see also Hanson 

v. Denckla, 357 U.S. 235, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 
7 A-2058-12T3

(1958); McGee v. Int'l Life Ins. Co., 355 U.S. 220, 78 S. Ct.

199, 2 L. Ed. 2d 223 (1957). "[T]he requisite quality and 

quantum of contacts is dependent on whether general or specific 

jurisdiction is asserted[.]" Citibank, N.A. v. Estate of 

Simpson, 290 N.J. Super. 519, 526 (App. Div. 1996).

 "If a cause of action is unrelated to the defendant's 

contacts with the forum state, the court's jurisdiction is 

general." Mische v. Bracey's Supermarket, 420 N.J. Super. 487, 

491 (App. Div. 2011); see also Charles Gendler & Co. v. Telecom 

Equip. Corp., 102 N.J. 460, 472 (1986). For general 

jurisdiction to obtain, the defendant must have contacts with 

this State that are "'so continuous and substantial as to 

justify subjecting the defendant to jurisdiction.'" Waste 

Mgmt., Inc. v. The Admiral Ins. Co., 138 N.J. 106, 123 (1994), 

cert. denied sub nom., WMX Techs. v. Canadian Gen. Ins. Co., 513 

U.S. 1183, 115 S. Ct. 1175, 130 L. Ed. 2d 1128 (1995) (quoting 

Gendler, supra, 102 N.J. at 472); see also Jacobs v. Walt 

Disney World, Co., 309 N.J. Super. 443, 452 (App. Div. 1998).

"This standard for establishing general jurisdiction is 

difficult to meet, requiring extensive contacts between a 

defendant and a forum." Mische, supra, 420 N.J. Super. at 492.

Specific jurisdiction is available when the "cause of 

action arises directly out of a defendant's contacts with the 
8 A-2058-12T3

forum state." Waste Mgmt., supra, 138 N.J. at 119. In this 

context, a "'minimum contacts inquiry must focus on the 

relationship among the defendant, the forum, and the 

litigation.'" Lebel v. Everglades Marina, Inc., 115 N.J. 317, 

323 (1989). The minimum contacts requirement is satisfied "so 

long as the contacts expressly resulted from the defendant's 

purposeful conduct and not the unilateral activities of the 

plaintiff." Ibid. (citing World-Wide Volkswagen Corp. v. 

Woodson, 444 U.S. 286, 297-98, 100 S. Ct. 559, 567-68, 62 L. Ed.

2d 490, 501-02 (1980)). "In determining whether the defendant's 

contacts are purposeful, a court must examine the defendant's 

'conduct and connection' with the forum state and determine 

whether the defendant should 'reasonably anticipate being haled 

into court [in the forum state].'" Bayway Ref. Co. v. State 

Utils., Inc., 333 N.J. Super. 420, 429 (App. Div.), certif. 

denied, 165 N.J. 605 (2000) (quoting World-Wide Volkswagen 

Corp., supra, 444 U.S. at 297, 100 S. Ct. at 567, 62 L. Ed. 2d 

at 501). 

Stated otherwise, when the defendant is not present in the 

forum state, "'it is essential that there be some act by which 

the defendant purposefully avails [herself] of the privilege of 

conducting activities within the forum state, thus invoking the 

benefit and protection of its laws.'" Waste Mgmt., supra, 138 
9 A-2058-12T3

N.J. at 120 (quoting Hanson, supra, 357 U.S. at 253, 78 S. Ct.

at 1240, 2 L. Ed. 2d at 1298). This "purposeful availment" 

requirement ensures that an out-of-state defendant will not be 

haled into court based on "random, fortuitous, or attenuated 

contacts or as a result of the unilateral activity of some other 

party." Id. at 121; see also Blakey v. Cont'l Airlines, 164 

N.J. 38, 67 (2000).

There is no requirement that the defendant ever be 

physically present in the forum state. See Burger King Corp. v. 

Rudzewicz, 471 U.S. 462, 476, 105 S. Ct. 2174, 2184, 85 L. Ed.

2d 528, 543 (1985). The Supreme Court has indicated that:

Although territorial presence frequently 

will enhance a potential defendant's 

affiliation with a State and reinforce the 

reasonable foreseeability of suit there, it 

is an inescapable fact of modern commercial 

life that a substantial amount of business 

is transacted solely by mail and wire 

communications across state lines, thus 

obviating the need for physical presence 

within a State in which business is 

conducted. So long as a commercial actor's 

efforts are "purposefully directed" toward 

residents of another State, we have 

consistently rejected the notion that an 

absence of physical contacts can defeat 

personal jurisdiction there.

[Ibid.] 

Thus, "the existence of minimum contacts turns on the 

presence or absence of intentional acts of the defendant to 

avail itself of some benefit of a forum state." Waste Mgmt., 
10 A-2058-12T3

supra, 138 N.J. at 126. After an examination of the defendant's 

minimum contacts with the state, the court must determine 

whether "the assertion of jurisdiction affect[s] traditional 

notions of fair play and substantial justice." Blakey, supra, 

164 N.J. at 69.

Ultimately, the presence or absence of personal 

jurisdiction must be determined "on a case-by-case basis." 

Bayway Ref. Co., supra, 333 N.J. Super. at 429. This analysis 

requires a judicial examination of several elements in an effort 

to satisfy the notions of "fair play and substantial justice." 

Lebel, supra, 115 N.J. at 328. Specifically, the court must 

consider: 

[T]he burden on the defendant, the interests 

of the forum [s]tate, and the plaintiff's 

interest in obtaining relief. It must also 

weigh in its determination "the interstate 

judicial system's interest in obtaining the 

most efficient resolution of controversies; 

and the shared interest of the several 

[s]tates in furthering fundamental 

substantive social policies."

 

[Asahi Metal Indus. Co., Ltd. v. Super. Ct. 

of Cal., 480 U.S. 102, 113, 107 S. Ct. 1026, 

1033, 94 L. Ed. 2d 92, 105 (1987) (quoting 

World-Wide Volkswagen, supra, 444 U.S. at 

292, 100 S. Ct. at 564, 62 L. Ed. 2d at 

498).]

With those precedents in view, we turn to consider whether 

Baanyan has met its burden of establishing a prima facie basis 
11 A-2058-12T3

for exercising personal jurisdiction over defendant. See

Blakey, supra, 164 N.J. at 71. Because the trial court 

dismissed the action on defendant's motion prior to discovery, 

we assume that Baanyan can establish all of its allegations and 

assertions. NCP Litig. Trust v. KPMG LLP, 187 N.J. 353, 365-66 

(2006). Our review of the trial court's ruling on a motion to 

dismiss for lack of jurisdiction at the inception of the case is 

de novo. Mastondrea v. Occidental Hotels Mgmt. S.A., 391 N.J. 

Super. 261, 268 (App. Div. 2007).

The extensive contacts required for establishing general 

jurisdiction are not present here. It is undisputed that 

defendant never resided nor did business in New Jersey, and that 

at all relevant times she acted in Illinois, servicing two of 

Baanyan's customers located there. 

To establish specific jurisdiction, plaintiff argues that 

defendant purposefully sought out employment from Baanyan. As 

noted, the burden is on Baanyan to "allege or plead sufficient 

facts" to warrant the court's exercise of jurisdiction, see

Blakey, supra, 164 N.J. at 71, and it must do so by way of 

"sworn affidavits, certifications, or testimony." Jacobs, 

supra, 309 N.J. Super. at 454 (quoting Catalano v. Lease & 

Rental Mgmt. Corp., 252 N.J. Super. 545, 547-48 (Law Div. 

1991)). In the present litigation, the record simply does not 
12 A-2058-12T3

support Baanyan's argument. The certification of Baanyan's 

president, Raghu Daripali, merely states that plaintiff and 

defendant "entered into a Consultant Agreement" whereby 

plaintiff would employ defendant as a consultant. Defendant's 

supplemental certification, on the other hand, avers that she 

"was recommended to [Baanyan] by a sales person, Sai Sudani, who 

worked . . . at Baanyan's office in Hyderabad, India," and that 

defendant discussed the terms and conditions with Baanyan's 

representatives in India. Additionally, Baanyan's website 

proclaims that it "finds and retains qualified professionals," 

and, "[r]eaching out from its locations in USA and India, [it] 

is able to locate and attract the very best computing talent 

from all over the globe." Thus, contrary to plaintiff's 

argument, there is no evidence in the record to support the 

contention that defendant sought out employment with Baanyan in 

New Jersey. 

Additionally, we have held that telephonic and electronic 

communications with individuals and entities located in New 

Jersey alone, are insufficient minimum contacts to establish 

personal jurisdiction over a defendant. Pfundstein v. Omnicon 

Grp. Inc., 285 N.J. Super. 245, 252 (App. Div. 1995). In 

Pfundstein, the panel found that New Jersey courts did not have 

jurisdiction over a New York corporation that executed a 
13 A-2058-12T3

severance agreement with the plaintiff, an executive of the New 

York corporation's subsidiary. Ibid. The court noted that 

negotiation of the provisions of the agreement via telephonic 

and interstate mail communications was not an attempt by the 

defendant to "tap an interstate market or avail itself of the 

privilege of doing business" in New Jersey, but rather was "a 

'fortuitous' or 'attenuated' contact between [the defendant] and 

New Jersey." Ibid. Thus, the court held that New Jersey could 

not exercise specific jurisdiction over the defendant. Ibid. 

Similarly, the fact that defendant received payment from 

Baanyan, and submitted timesheets to Baanyan, does not support a 

finding of personal jurisdiction as this was all done 

electronically and did not require any contact with New Jersey. 

See Mellon Bank (EAST) PSFS, N.A. v. DiVeronica Bros., Inc., 983 

F.2d 551, 555 (3d Cir. 1993) (noting that courts have rejected 

the notion that accepting checks drawn on a bank in the forum 

state is a valid basis for finding jurisdiction). 

Finally, Baanyan argues that subjecting defendant to 

personal jurisdiction in New Jersey does not offend traditional 

notions of fair play and substantial justice. However, 

plaintiff's interest in obtaining relief is but one of the facts 

that we must consider in determining whether the exercise of 

personal jurisdiction over defendant here is reasonable. 
14 A-2058-12T3

Nothing in the record supports a finding that plaintiff, a 

multinational corporation, could not obtain the relief it seeks 

in Tennessee, where defendant resides, or in Illinois, where all 

of defendant's consulting services were rendered, and Baanyan's 

customers who benefited therefrom are located. Moreover, any 

breach of contract or tort that was allegedly committed occurred 

in Illinois. New Jersey's nexus to, and interest in, the 

dispositive events that occurred in Illinois, is virtually 

nonexistent. 

In summary, we conclude that defendant's contacts with New 

Jersey are attenuated at best. They are not continuous and 

systematic so as to establish general jurisdiction. They are 

more akin to random, fortuitous contacts, rather than a 

purposeful availment of the benefits and privileges of New 

Jersey law, and hence are likewise insufficient to establish 

specific jurisdiction. Additionally, to allow Baanyan, an 

international company, to compel an individual employee to 

defend against a New Jersey lawsuit, where that employee was 

hired to work in Illinois, and never lived in, worked in, or 

visited New Jersey, violates principles of "fair play and 

substantial justice." Lebel, supra, 115 N.J. at 328. We are 

therefore satisfied that the facts support the trial judge's 

finding that Baanyan failed to establish that defendant has 
15 A-2058-12T3

sufficient minimum contacts with the State of New Jersey for 

jurisdiction to exist. 

Affirmed.