1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-3-1998

IMO Ind Inc v. Kiekert AG

Precedential or Non-Precedential:

Docket 97-5356

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Recommended Citation

"IMO Ind Inc v. Kiekert AG" (1998). 1998 Decisions. Paper 215.

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Filed September 3, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

NO. 97-5356 

IMO INDUSTRIES, INC. 

Appellant 

v. 

KIEKERT AG 

Appellee 

On Appeal From the United States District Court 

For the District of New Jersey 

(D.C. Civ. No. 96-cv-05881) 

Argued: January 22, 1998 

Before: BECKER,* STAPLETON, Circuit Judges, 

and POLLAK, District Judge.** 

(Filed September 3, 1998) 

ROBERT G. SUGARMAN, ESQUIRE 

 (ARGUED) 

GERALD A. STEIN, ESQUIRE 

Weil, Gotshal & Manges LLP 

767 Fifth Avenue 

New York, NY 10153 

_________________________________________________________________ 

*Honorable Edward R. Becker, United States Circuit Judge for the Third 

Circuit, assumed Chief Judge status on February 1, 1998. 

**Honorable Louis H. Pollak, United States District Judge for the Eastern 

District of Pennsylvania, sitting by designation. 
 GERALD KROVATIN, ESQUIRE 

 Arseneault & Krovatin 

 560 Main Street 

 Chatham, NJ 07928 

 Attorneys for Appellant 

 IMO Industries 

 PETER BARNES, ESQUIRE 

 (ARGUED) 

 FRANZ M. OPPENHEIMER, 

 ESQUIRE 

 BARBARA M. TAPSCOTT, ESQUIRE 

 Swidler & Berlin, Chartered 

 3000 K Street, NW 

 Suite 300 

 Washington, DC 20007-5116 

 DOUGLAS S. EAKELEY, ESQUIRE 

 NEIL P. HORNE, ESQUIRE 

 Lowenstein, Sandler, Kohl, 

 Fisher & Boylan 

 A Professional Corporation 

 65 Livingston Avenue 

 Roseland, NJ 07068 

 Attorneys for Appellee 

 Kiekert A.G. 

OPINION OF THE COURT 

BECKER, Chief Judge. 

This is a long arm service of process case which requires 

us, for the first time, to apply the Supreme Court's decision 

in Calder v. Jones, 465 U.S. 783 (1984), to a business tort. 

It comes before us on the appeal of the plaintiff, Imo 

Industries Inc. ("Imo"), a multinational corporation with its 

principal place of business in New Jersey, from an order of 

the district court dismissing its action pursuant to Fed. R. 

Civ. P. 12(b)(2) for lack of personal jurisdiction over 

defendant Kiekert AG ("Kiekert"), a German corporation. 

The complaint alleges that Kiekert tortiously interfered with 

 2 
Imo's attempt to sell its wholly-owned Italian subsidiary to 

a French corporation that was one of Kiekert's competitors. 

The asserted mechanism by which the tort was 

accomplished was a series of letters sent by Kiekert to the 

Italian subsidiary and to the New York investmentfirm of 

C.S. First Boston, Imo's representative in the sale, 

threatening that Kiekert would revoke the licensing

agreement it had with the subsidiary if the deal went 

through. According to Imo, the sale was never 

consummated because of these threats, causing it 

considerable loss. 

Imo contends that personal jurisdiction over Kiekert was 

proper based upon its contacts with Imo in New Jersey and 

upon Kiekert's claimed commission of an intentional tort, 

the effects of which were allegedly felt by Imo in New 

Jersey. Because we conclude that Kiekert's contacts with 

the forum would not otherwise satisfy the requirements of 

due process, the question whether personal jurisdiction can 

be exercised here depends upon the applicability to the 

facts of Calder, in which the Supreme Court found personal 

jurisdiction to be proper over nonresident defendants that 

committed an intentional tort outside the forum, the unique 

effects of which caused damage to the plaintiff within the 

forum. We believe that for Calder to apply, the plaintiff 

must allege facts sufficient to meet a three-prong test. First, 

the defendant must have committed an intentional tort. 

Second, the plaintiff must have felt the brunt of the harm 

caused by that tort in the forum, such that the forum can 

be said to be the focal point of the harm suffered by the 

plaintiff as a result of the tort. Third, the defendant must 

have expressly aimed his tortious conduct at the forum, 

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

tortious activity. 

Applying this test to the present facts, we conclude that 

personal jurisdiction does not exist here since Imo has not 

pointed to sufficient facts demonstrating that Kiekert 

"expressly aimed" its tortious conduct at New Jersey. To the 

contrary, the focus of the dispute -- i.e. the proposed sale 

of an Italian company to a French company and a claim of 

rights by a German company pursuant to a license 

agreement apparently governed by German law -- and the 

 3 
alleged contacts by Kiekert (i.e., its correspondence) all 

appear to be focused outside the forum. The order of the 

district court will therefore be affirmed. 

I. Facts and Procedural History 

For purposes of this appeal, we accept the plaintiff 's 

allegations as true. See Carteret Savings Bank, FA v. 

Shushan, 954 F.2d 141, 142 (3d Cir. 1992) (holding that an 

appellate court reviewing an order of the district court 

dismissing a case for lack of personal jurisdiction"must 

accept all of the plaintiff 's allegations as true and construe 

disputed facts in favor of plaintiff.") (citing In re Arthur 

Treacher's Franchisee Litigation, 92 F.R.D. 398, 409-10 

(E.D. Pa. 1981)). However, the plaintiff bears the burden of 

proving that personal jurisdiction is proper. Carteret 

Savings Bank, 954 F.2d at 146 (Once a defendant raises 

the defense of lack of personal jurisdiction, "the plaintiff 

bears the burden to prove, by a preponderance of evidence, 

facts sufficient to establish personal jurisdiction.") (citing 

Time Share Vacation v. Atlantic Resorts, Ltd., 735 F.2d 61, 

65 (3d Cir. 1984)). 

Defendant Kiekert, a manufacturer of automobile door 

latch systems, is a corporation organized, existing under 

the laws of, and having its principal place of business in 

the Federal Republic of Germany. Kiekert sells its products 

world-wide, though only 2% of its sales derive from the 

United States market.1 According to Kiekert, it does not 

now engage, nor has it ever engaged in any of the following 

activities in New Jersey: "the manufacture of any products; 

any direct sales; solicitation or advertisement to sell its 

products; any shipment of merchandise directly into or 

through the state, or the supply of services there; the 

maintenance of an office, a mailing address, a telephone 

number, or a bank account; the ownership of any real or 

personal property; the employment of any employees or 

agents; or the requirement of or payment of taxes."

_________________________________________________________________ 

1. Kiekert's promotional literature projects that the United States market 

will comprise thirty percent of its sales by the year 2000. Since this is 

but a projection, it does not affect the outcome here. 

 4 
Appellee's Br. at 4. Imo does not appear to dispute these 

claims. 

Plaintiff Imo, a multinational corporation, is incorporated 

in Delaware with its principal place of business in

Lawrenceville, New Jersey. Imo has 22 manufacturing

facilities around the world, including plants in Germany, 

the United Kingdom, France and Australia. Approximately 

90% of Imo's products are marketed outside of the United 

States, and approximately 34% of Imo's total net sales for 

1995 were in these foreign markets. Most relevant to the 

present case is the fact that Imo owns all of the shares of 

an Italian company, Roltra Morse, S.p.A. ("Roltra"), which 

manufactures automobile door latches using technology 

licensed from Kiekert. The licensing agreement was 

negotiated in Germany and Italy in 1993 and it provides 

that the agreement shall be governed by German law. Imo 

was not a party to this licensing agreement and did not 

participate in the negotiation or execution thereof. 

In December 1995, Imo decided to sell its shares in

Roltra and retained the New York investment firm of C.S. 

First Boston Corporation ("First Boston") to act as its 

representative. On Imo's behalf, First Boston solicited bids 

from corporations interested in acquiring Imo's shares of 

Roltra. Valeo, S.A. ("Valeo"), a French corporation and one 

of Kiekert's competitors, submitted a bid of $72 million for 

the shares. Kiekert also submitted a bid, though for only 

$30 million. Imo and Valeo thereafter proceeded to prepare 

final agreements to close the sale of Roltra's stock for $69 

million, and Kiekert was notified on or about June 12, 

1996, that its bid was insufficient. 

Shortly thereafter, and prior to closing, Kiekert sent a 

letter to First Boston in New York stating that, under its 

agreement with Roltra, Kiekert had the right to revoke its 

license for the door latch technology if Roltra's shares were 

sold to one of its competitors. More specifically, the letter to 

First Boston, dated June 17, 1996, stated in pertinent part 

that "Kiekert's license and patents . . . cannot be

transferred if [Roltra] is taken over by one of our

competitors" and if this occurs, Kiekert "would have to 

retire [its] acceptance of production for these products 

immediately which are manufactured under our license." 

 5 
The import of such an action was clear -- if the license was 

revoked, Roltra's value as a going concern would be

severely impacted. In addition, Kiekert wrote to Roltra in 

Italy on July 8, 1996, similarly stating Kiekert's intent to 

terminate the licensing agreement if Roltra's shares were 

sold to a competitor. 

First Boston forwarded the June 17 letter to Imo in New 

Jersey. Imo responded directly to Kiekert by letter dated 

July 9, 1996, stating its position that Kiekert was"not 

entitled by contract or law to rescind or otherwise terminate 

the License Agreement in the event of sale of the shares to 

any third party." Imo demanded "that [Kiekert] cease and 

desist from making such statements to any third party," 

and advised that if it "continue[s] to make such statements 

[it] . . . will be held responsible for all damages that [Roltra] 

and/or its shareholders suffer from such representations." 

Roltra also forwarded the July 8 letter to Imo in New 

Jersey. Imo again responded directly to Kiekert by letter 

dated August 12, stating that its "tortious and illegal 

conduct is seriously jeopardizing [our] ability to close this 

transaction," and that "unless you immediately withdraw 

your threats of termination, we are prepared tofile lawsuits 

in all appropriate jurisdictions, including the United States 

. . ." 

In addition to the mail contacts, Kiekert officials in 

Germany and Imo officials in New Jersey spoke twice by 

telephone during this time concerning the license 

agreement. The record reveals that representatives of Imo 

initiated these calls. See Appellant's Br. at 21. Finally, Imo 

requested meetings with Kiekert in an attempt to resolve 

the matter. One such meeting was held in Toronto on

August 27, 1996, and two more were held on September 10 

of that year in Germany. These discussions apparently 

failed to persuade Kiekert to change its position. 

On October 28, 1996, Valeo advised Imo of its withdrawal 

from negotiations concerning the sale of Roltra's shares. By 

letter, it informed Imo that "[w]e have concluded that, 

irrespective of the likelihood that Kiekert's position would 

prevail, Kiekert's position regarding its license can be 

expected to have a disruptive impact on the business of 

 6 
Roltra . . . and in particular create disturbances with 

customers during the period of any litigation." 

Imo thereafter sued in the District Court for the District 

of New Jersey, alleging that Kiekert's actions constituted 

tortious activity and caused significant damage to it in New 

Jersey. Subject matter jurisdiction was premised on

diversity of citizenship. See 28 U.S.C.S 1332. According to 

Imo, Valeo's decision to break off the contract negotiations 

was directly caused by Kiekert's steadfast assertion of its 

intent to revoke its license if the proposed sale was 

consummated. As a result, Imo alleges that it has suffered 

injuries in numerous forms due to its inability to 

consummate the deal. First, Imo alleges that the sale to 

Valeo would have resulted in a profit of more than $20 

million. Second, Imo submits that, because of its inability 

to sell the Roltra shares, it has been forced to reclassify 

Roltra as a continuing operation, with a concomitant 

restatement of its third quarter earnings. This has allegedly 

resulted in the reversal of a favorable $10 million tax 

benefit based on the anticipated sale, the recognition of 

$4.8 million in previously deferred 1996 losses relating to 

Roltra, liabilities for banking and legal fees, as well as the 

diminution of Roltra's stock value. See Appellant's Br. at 9. 

Kiekert moved to dismiss Imo's action for lack of personal 

jurisdiction, contending that it did not have the requisite 

minimum contacts with New Jersey to sustain jurisdiction 

in that forum. The district court granted the motion. We 

review de novo the district court's dismissal for lack of 

personal jurisdiction. Vetrotex Certainteed Corp. v. 

Consolidated Fiber Glass Products Co., 75 F.3d 147, 150 

(3d Cir. 1996) ("Whether personal jurisdiction may be 

exercised over an out-of-state defendant is a question of 

law, and this court's review is therefore plenary."); Madara 

v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990). 

II. Due Process Limits on the Exercise of Personal 

Jurisdiction 

The fundamental principles of long arm jurisdiction are 

extremely familiar and, since they have been repeated 

countless times in the jurisprudence, little will be served by 

 7 
rescribing them at any length here. In brief, to exercise 

personal jurisdiction over a defendant, a federal court 

sitting in diversity must undertake a two-step inquiry. 

First, the court must apply the relevant state long-arm 

statute to see if it permits the exercise of personal 

jurisdiction; then, the court must apply the precepts of the 

Due Process Clause of the Constitution. In New Jersey, this 

inquiry is collapsed into a single step because the New 

Jersey long-arm statute permits the exercise of personal 

jurisdiction to the fullest limits of due process. See 

DeJames v. Magnificence Carriers, Inc., 654 F.2d 280, 284 

(3d Cir. 1981). This being the case, the New Jersey

Supreme Court has made it clear that New Jersey courts 

look to federal law for the interpretation of the limits on in 

personam jurisdiction. Mesalic v. Fiberfloat Corp., 897 F.2d 

696, 698 n.5 (3d Cir. 1990). 

Personal jurisdiction under the Due Process Clause 

depends upon "the relationship among the defendant, the 

forum, and the litigation." Shaffer v. Heitner, 433 U.S. 186, 

204 (1977). Physical presence within the forum is not 

required to establish personal jurisdiction over a 

nonresident defendant. See Burger King Corp. v. Rudzewicz, 

471 U.S. 462, 476 (1985). Instead, the plaintiff must show 

that the defendant has purposefully directed its activities 

toward the residents of the forum state, see id. at 472, or 

otherwise "purposefully avail[ed] itself of the privilege of 

conducting activities within the forum State, thus invoking 

the benefits and protections of its laws." See Hanson v. 

Denckla, 357 U.S. 235, 253 (1958). 

Where, as here, the plaintiff 's cause of action is related 

to or arises out of the defendant's contacts with the forum, 

the court is said to exercise "specific jurisdiction." See 

Helicopteros Nacionales de Columbia, S.A. v. Hall , 466 U.S. 

408, 414 n.8 (1984).2 In order for specific jurisdiction to be 

_________________________________________________________________ 

2. If the plaintiff 's claim does not arise out of the defendant's 

contacts 

with the forum, the court is said to exercise "general jurisdiction." See 

Helicopteros, 466 U.S. at 414 & n.9. To establish general jurisdiction 

over a defendant, the contacts must be shown to be"continuous and 

systematic". See id. at 416. Imo does not contend that the New Jersey 

courts could exercise general jurisdiction over Kiekert. 

 8 
properly exercised under the Due Process Clause, the 

plaintiff must satisfy a two-part test. First, the plaintiff 

must show that the defendant has constitutionally 

sufficient "minimum contacts" with the forum. See Burger 

King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985). Second, 

for jurisdiction to be exercised the court must determine, in 

its discretion, "that to do so would comport with`traditional 

notions of fair play and substantial justice.' " See Vetrotex, 

75 F.3d at 150-51 (citing International Shoe Co. v.

Washington, 326 U.S. 310 (1945)). Although this case 

raises some interesting issues regarding the application of 

the "fair play and substantial justice" standard, we need 

not reach them since, as we discuss below, Imo has not 

met its burden of demonstrating Kiekert's minimum 

contacts with the forum. 

We note initially that specific jurisdiction will not lie here 

on the basis of Kiekert's alleged contacts with the forum 

alone, for (as we detail in the margin) they are far too small 

to comport with the requirements of due process. 3 Since 

(Text continued on page 11) 

_________________________________________________________________ 

3. In brief, Imo argues that specific jurisdiction can be premised on the 

following contacts: (1) the June 17 letter from Kiekert to First Boston; 

(2) 

the July 8 letter from Kiekert to Roltra; (3) the two phone calls from 

Imo's general counsel in New Jersey to Kiekert; and (4) the August and 

September face-to-face meetings in Toronto and Germany. Although 

neither of Kiekert's letters were sent to New Jersey, Imo asserts that 

Kiekert "certainly knew" that its correspondence would both be 

transmitted to Imo in New Jersey and cause injury to Imo there. 

Appellant's Br. at 19. Similarly, Imo contends that Kiekert knew that the 

face-to-face meetings, though occurring outside the United States, would 

result in injury to Imo in New Jersey. 

We believe that these contacts, considered as a whole, are insufficient 

to demonstrate, even at a minimal level, that Kiekert has purposefully 

directed its activities toward the forum or has purposefully availed 

itself 

of the privilege of conducting its activities within the forum. The weight 

of authority among the courts of appeal is that minimal communication 

between the defendant and the plaintiff in the forum state, without more, 

will not subject the defendant to the jurisdiction of that state's court 

system. For instance, this court in Carteret Savings Bank, 954 F.2d at 

149, noted that "some minimal correspondence alone will not satisfy 

minimum contacts." This conclusion has been reached by a number of 

the other circuits, and we respect the weight of this authority. See, 

e.g., 

 9 
Stover v. O'Connell Associates, Inc., 84 F.3d 132, 137 (4th Cir.), cert. 

denied ___ U.S. ___, 117 S. Ct. 437 (1996) ("Ordering a product or 

service by telephone from a company in a different state does not subject 

the customer to that state's jurisdiction."); Far West Capital, Inc. v. 

Towne, 46 F.3d 1071, 1077 (10th Cir. 1995) ("It is well-established that 

phone calls and letters are not necessarily sufficient in themselves to 

establish minimum contacts."); Reynolds v. Int'l Amateur Athletic Fed., 

23 F.3d 1110, 1119 (6th Cir. 1994) ("The use of interstate facilities such 

as the telephone and mail is a secondary or ancillary factor and cannot 

alone provide the minimum contacts required by due process.") (quoting 

Scullin Steel Co. v. National Railway Utilization Corp., 676 F.2d 309, 314 

(8th Cir. 1982) (internal quotation marks omitted)); Cote v. Wadel, 796 

F.2d 981, 984 (7th Cir. 1986) (finding insufficient a "handful" of letters 

and phone calls exchanged between plaintiff and defendant). 

In the present case, not only are the communications limited in 

quantity, but there is not even one direct act of"entry" into New Jersey 

by Kiekert -- the letters were sent to Italy and New York, the phone calls 

were placed by Imo itself, and the meetings were held in Canada and 

Germany. While in some cases there might be merit to the argument 

that correspondence sent to a third-party outside the forum which 

foreseeably would wind up within the forum could weigh in favor of a 

finding of specific jurisdiction being properly exercised, in the present 

case we are not persuaded that the Kiekert letters provide such weight. 

The same must be said for the two phone calls, which strike us as 

purely unilateral conduct by Imo. See Hanson, 357 U.S. at 253 ("[T]he 

unilateral activity of those who claim some relationship with a 

nonresident defendant cannot satisfy the requirement of contact with the 

forum State."). 

There is also an aspect of foreseeability that we believe is missing in 

this case. The Supreme Court has concluded that"foreseeability alone 

has never been a sufficient benchmark for personal jurisdiction under 

the Due Process Clause . . . . [T]he foreseeability that is critical to 

due 

process analysis is . . . . that the defendant's conduct and connection 

with the forum State are such that he should reasonably anticipate 

being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 

444 U.S. 286, 295-97 (1980) (internal quotation marks omitted). We do 

not believe that it was reasonably foreseeable to Kiekert that its 

connection with New Jersey was such that that it should reasonably 

have anticipated being haled into court there. From Kiekert's perspective, 

it entered into a License Agreement with an Italian company in 

Germany, which was to be governed by German law. Imo took no part 

at all in these contract negotiations. It was perfectly reasonable, 

 10 
this is an intentional tort case, we must consider whether 

the application of Calder v. Jones, supra, can change the 

outcome. Generally speaking, under Calder an intentional 

tort directed at the plaintiff and having sufficient impact 

upon it in the forum may suffice to enhance otherwise 

insufficient contacts with the forum such that the 

"minimum contacts" prong of the Due Process test is

satisfied. See Keeton v. Hustler Magazine, Inc., 465 U.S. 

770, 780 (1984). We therefore concentrate our minimum 

contacts discussion below on the Calder test. 

III. The Import of Calder v. Jones 

A. The Calder Holding 

In Calder, entertainer Shirley Jones brought an action in 

California against the author and editor of an article which 

had appeared in the National Enquirer, and which she 

claimed was defamatory. The article alleged that Jones had 

a problem with alcohol which prevented her from fulfilling 

her professional obligations. Although the Enquirer was 

distributed nationally, it had its largest circulation in 

California. Defendant South, the reporter, did most of his 

research in Florida, relying on phone calls to California for 

information. Defendant Calder had no such contacts with 

California. He reviewed and approved the initial evaluation 

of the topic of the article and edited drafts to itsfinal form. 

See id. at 785-86. Both defendants, residents of Florida, 

moved to dismiss Jones' suit for lack of personal 

jurisdiction. 

The Court found that the exercise of personal jurisdiction 

over the defendants was proper. The Court concluded: 

 The allegedly libelous story concerned the California 

 activities of a California resident. It impugned the 

 professionalism of an entertainer whose television 

 career was centered in California. The article was 

 drawn from California sources, and the brunt of the 

_________________________________________________________________ 

therefore, for Kiekert to believe when it entered into the agreement, that 

it would be able to enforce its rights under the contract without being 

subject to the jurisdiction of the New Jersey courts. 

 11 
 harm, in terms of both respondent's emotional distress 

 and the injury to her professional reputation, was 

 suffered in California. In sum, California is the focal 

 point both of the story and of the harm suffered. 

 Jurisdiction over petitioners is therefore proper in 

 California based on the "effects" of their Florida 

 conduct in California. . . . [T]heir intentional, and 

 allegedly tortious, actions were expressly aimed at 

 California. Petitioner South wrote and petitioner Calder 

 edited an article that they knew would have a 

 potentially devastating impact upon respondent. And 

 they knew that the brunt of that injury would be felt by 

 respondent in the State in which she lives and works 

 and in which the National Enquirer has its largest 

 circulation. 

Id. at 788-90 (footnote omitted). It is from this passage that 

courts have drawn what has come to be known as the 

Calder "effects test." We have observed that under this test 

a court may exercise personal jurisdiction over a 

nonresident defendant who commits an intentional tort by 

certain acts outside the forum which have a particular type 

of effect upon the plaintiff within the forum. See Carteret 

Savings Bank, 954 F.2d at 148.4 Imo argues that the

present case falls within Calder's purview because Kiekert 

"set upon a deliberate and intentional course designed to 

prevent Imo from selling Roltra to one of Kiekert's

competitors," and because "Kiekert's tortious conduct was 

specifically aimed at and caused injury to Imo (a New 

Jersey resident) within the State of New Jersey." Appellant's 

Br. at 15. We disagree. 

B. Calder and Business Torts 

Calder's holding cannot be severed from its facts. In order 

to reach the conclusion that jurisdiction was properly 

exercised by the California court in that case, the Supreme 

Court relied on three principal findings. First, the 

defendant committed an intentional tort. Second, the forum 

was the focal point of the harm suffered by the plaintiff as 

a result of that tort. Third, the forum was the focal point of 

_________________________________________________________________ 

4. We note that the interpretation of Calder in Carteret Savings Bank was 

not necessary to our holding, and was therefore dicta. 

 12 
the tortious activity in the sense that the tort was 

"expressly aimed" at the forum. Essential was a corollary 

finding that the defendants knew that the "brunt" of the 

injury caused by their tortious acts would be felt by the 

plaintiff in the forum. In applying Calder outside the 

defamation context, courts have adopted varying versions of 

these factors as the "effects test," yielding a mixture of 

broad and narrow interpretations. Since we have not

applied Calder to a case involving business torts, we turn 

to a subset of these cases for guidance. 

The majority of our sister circuits that have considered 

the application of Calder to business torts have adopted a 

narrow construction. One such case is Far West Capital, 

Inc. v. Towne, 46 F.3d 1071 (10th Cir. 1995), which

assessed the following facts to determine the existence vel 

non of personal jurisdiction in Utah. Towne, a Nevada 

resident who owned real property in Nevada, negotiated 

with plaintiff Far West Capital ("FWC"), a Utah corporation, 

which was interested in developing Towne's land. Although 

the negotiations occurred in Nevada, Towne sent a number 

of letters and faxes to the plaintiff in Utah, and there was 

an escrow account set up in Utah. Furthermore, during the 

negotiations Towne hired a consultant, a Utah resident, 

who occasionally picked up materials from FWC in Utah. 

The parties ultimately entered into a lease, which included 

a provision that the agreement would be governed by

Nevada law. FWC subsequently negotiated with a third 

party in California regarding financing for the construction 

of a power plant on the property. Towne interfered, and 

FWC brought suit in Utah for, inter alia, intentional 

interference with contractual relations. See id. at 1073-74. 

Towne claimed that she was not subject to personal 

jurisdiction in Utah for lack of minimum contacts. FWC 

rejoined that personal jurisdiction was proper under Calder 

because Towne had intentionally committed torts against it 

in Utah. The Tenth Circuit held that jurisdiction would not 

lie under Calder. See id. at 1080. The court noted initially 

that Calder did not set forth a per se rule that the 

allegation of an intentional business tort alone is sufficient 

to confer personal jurisdiction in the forum where the 

plaintiff resides. See id. at 1078. Instead, the court held 

 13 
that it must still examine the "prior negotiations and 

contemplated future consequences along with the terms of 

the contract and the parties' actual course of dealing" and 

"the contacts created by the out-of-state defendant in 

committing the alleged tort." Id. at 1079-80. The court 

concluded that, on the facts of this case: 

 [T]here is no indication that Utah had anything but a 

 fortuitous role in the parties past dealing or would 

 have any role in their continuing relationship. . . . 

 There is thus no evidence that defendants' alleged torts 

 had any connection to Utah beyond plaintiff 's 

 corporate domicile. Although FWC argues that it 

 suffered the financial effects of these alleged torts in 

 Utah where it is incorporated, we hold that under 

 Calder and its progeny, the defendants' contacts with 

 Utah are insufficient to establish personal jurisdiction 

 in this case. 

Id. at 1080. 

On facts strikingly similar to our own, the Fifth Circuit 

reached a similar conclusion in Southmark Corp. v. Life 

Investors Inc., 851 F.2d 763 (5th Cir. 1988). There, the 

question was whether personal jurisdiction would lie 

properly in Texas. Defendant Life Investors Inc. ("Life") 

owned 22% of the outstanding shares of International Bank 

("IB") stock. Southmark, a Georgia corporation with its 

principal place of business in Texas, began negotiating with 

Life to purchase its shares of IB, with Southmark 

contending that the parties had ultimately formed a

contract. Life, however, sold its shares to USLICO.

Southmark brought suit in Texas against Life and joined 

USLICO as a defendant, claiming tortious interference with 

the alleged contract and business relations. USLICO, a 

Virginia corporation, moved to dismiss for lack of personal 

jurisdiction. Relying principally on Calder, Southmark 

contended that the exercise of specific jurisdiction was 

proper because USLICO had committed an intentional tort 

against it in Texas with knowledge that it was a Texas 

resident. See id. at 772. 

The court rejected this argument, holding that "there is 

no evidence that USLICO expressly aimed its allegedly 

 14 
tortious activities at Texas, nor is there evidence that 

USLICO knew the brunt of Southmark's injury would be felt 

there." Id. Moreover, the court found that "nothing in the 

record indicates that USLICO expressly aimed its allegedly 

tortious activities at Texas, or that Texas is even the focal 

point of USLICO's tortious conduct." Id. at 773. The court 

also underscored the fact that the oral agreement with 

which USLICO allegedly interfered was negotiated outside of 

the forum state, and there was no evidence that the

agreement was made or to be performed in the forum or 

governed by its laws. See id. at 772-73. 

The court concluded that the fact that the plaintiff had 

its principal place of business in the forum was a"mere 

fortuity," and declined to exercise jurisdiction. See id. at 

773. Importantly, the court reasoned: 

 While it may be true that USLICO agreed to buy the 

 stock knowing that Southmark has its principal place 

 of business in Texas, and that Southmark is therefore 

 a Texas resident for jurisdictional purposes, we do not 

 think this fact standing alone would cause USLICO to 

 anticipate being haled into a Texas court to answer for 

 its conduct. 

Id. In other words, the Fifth Circuit was unconvinced of two 

critical facts. First, the court was not persuaded that 

Southmark would feel the brunt of the injury caused by 

USLICO in Texas simply because its principal place of 

business was located there. See id. Second, the court was 

not persuaded that USLICO's intent to interfere with the 

contractual relations of a company residing in Texas 

necessarily meant that USLICO had "expressly aimed" its 

tortious conduct at Texas. Id. at 772. 

This concern over whether a court can automatically

infer that a defendant expressly aimed its tortious conduct 

at the forum from the fact that that defendant knew that 

the plaintiff resided in the forum was also addressed in 

Esab Group, Inc. v. Centricut, Inc., 126 F.3d 617 (4th Cir. 

1997), cert. denied ___U.S. ___, 118 S. Ct. 1364 (1998). 

Plaintiff, a Delaware corporation residing in South Carolina, 

brought suit in South Carolina alleging that the defendant, 

a New Hampshire company, participated in a conspiracy to 

 15 
appropriate plaintiff 's trade secrets and customer lists. All 

the alleged co-conspirators were either Florida or New 

Hampshire residents. The only South Carolina "contact" in 

the case was the defendant's knowledge that his acquisition 

of the trade secrets could result in lowered sales for the 

plaintiff. Id. at 625. The Fourth Circuit concluded that this 

knowledge alone did not "manifest behavior intentionally 

targeted at and focused on South Carolina" under Calder. 

Id. The court further reasoned that while it is true that a 

corporation "feels" lost sales at its headquarters, permitting 

Calder to be satisfied on this basis would mean that 

jurisdiction in intentional tort cases would always be 

appropriate in the plaintiff 's home state, since the plaintiff 

always "feels" the impact of the tort there. Id. at 625-26. 

In sum, Far West, Southmark and Esab Group all stand 

for the proposition that the mere allegation that the plaintiff 

feels the effect of the defendant's tortious conduct in the 

forum because the plaintiff is located there is insufficient to 

satisfy Calder. In all of those cases, the plaintiffs failed to 

point to other actions that adequately demonstrated that 

the defendants targeted (or "expressly aimed" their conduct 

at) the forum, and thereby showed that the forum was the 

focal point of the tortious activity. See also General Electric 

Capital Corp. v. Grossman, 991 F.2d 1376, 1387-88 (8th 

Cir. 1993) (concluding that Calder is of little help to a 

plaintiff where the "focal point of the alleged wrongdoing" 

occurred outside of the forum even where the "effects of the 

harm" occurred in that state); Noonan v. Winston Co., 135 

F.3d 85, 90-91 (1st Cir. 1988) (holding that Calder test was 

not satisfied because defendants did not target forum even 

though plaintiffs felt tortious effect there). Moreover, Calder 

requires that the "brunt" of the harm be felt in the forum. 

See Calder, 465 U.S. at 789. These cases cast doubt on the 

assertion that a company will feel the "brunt" of a tort 

injury at its principal place of business when that injury is 

based on damage to contracts or property not centered in 

the forum. 

There is one counterpoint, however, for the Seventh

Circuit recently endorsed a broader reading of Calder. In 

Janmark, Inc. v. Ready, 132 F.3d 1200 (7th Cir. 1997), 

both plaintiff and defendant sold mini shopping carts 

 16 
nationwide; Janmark did so from its base in Illinois, and 

Ready (through his company Dreamkeeper) from California. 

Ready believed that he had a copyright in the Dreamkeeper 

cart design, and tried to use his copyright claim to 

"orchestrate an agreement" among all mini shopping-cart 

sellers. See 132 F.3d at 1202. Janmark resisted Ready's 

overtures, and Ready allegedly responded by threatening 

Janmark's customers with suits for contributory copyright 

infringement. According to Janmark, one such threat

induced a customer in New Jersey to cease buying from 

Janmark, which Janmark contended was an intentional

tort in Illinois sufficient to establish personal jurisdiction 

there under Calder. 

The Seventh Circuit found that the Illinois court could 

properly exercise jurisdiction over Ready. The court stated 

that, after Calder "there can be no serious doubt . . . that 

the state in which the victim of a tort suffers the injury may 

entertain a suit against the accused tortfeasor." Janmark, 

132 F.3d at 1202. The court further opined that since "a 

wrong does not become a `tort' until an injury has 

occurred," the complained-of tort of interference with 

prospective economic advantage was not completed until 

Janmark's customer in New Jersey canceled his order. Id. 

Accordingly, the court concluded, the injury (and hence the 

tort) occurred in Illinois, and thus jurisdiction was properly 

laid there. Id. 

Finding the cases previously cited to be better reasoned, 

we decline to follow Janmark. We believe that the Seventh 

Circuit interpreted Calder too broadly when it read that 

case to hold that "the state in which the victim of a tort 

suffers the injury may entertain a suit against the accused 

tortfeasor." Janmark, 132 F.2d at 1202. Even assuming 

that the Seventh Circuit was only referring to intentional 

torts (since Calder clearly was clearly not concerned with 

negligence), such a broad sweep fails to accommodate 

Calder's emphasis on the fact that the forum must be the 

focal point of the harm and that the defendant must

expressly aim the tortious activity at the forum. Janmark 

relies solely on the geographical locus of the harm caused; 

in doing so, it fails to pay necessary attention to the 

 17 
defendant's knowledge and intent in committing the 

tortious activity.5 

A hypothetical, posed to counsel at oral argument, may 

clarify this point. Suppose X, a closely-held corporation 

incorporated and located in New Jersey, purchases W, a 

French widget manufacturing company. Further suppose 

that Y, another French corporation that also manufactures 

and distributes widgets, interferes with W's prospective 

business advantage by tortiously acquiring W's largest 

customer, causing the value of W's stock to plummet. 

Finally, assume that Y was unaware that X had become the 

owner of W at the time the tortious acts were committed. 

We believe that, under Calder, X would not be able to sue 

Y for its intentional torts in the New Jersey district court. 

Even if we assume that the Calder test is otherwise

satisfied, it would be impossible to conclude that Y 

expressly aimed its tortious activity at New Jersey since Y 

simply did not know that a New Jersey corporation could 

be the victim of its conduct. Under a literal reading of 

Janmark, however, personal jurisdiction would appear to be 

appropriate in New Jersey if we concluded (as the Janmark 

court presumably would) that the injury occurred there.6 

An analogous situation to our hypothetical was presented 

_________________________________________________________________ 

5. As we explain infra in footnote 9, we need not (and do not) deal with 

the "focal point of the harm" issue here. 

6. To be fair, this hypothetical is different from Janmark in at least one 

important respect. The hypothetical sets up a three-party scenario 

wherein Y knows that it is tortiously interfering with W, but is not aware 

of X, the absentee foreign owner. In Janmark, by contrast, there were 

only two players -- Janmark and Dreamkeeper -- and thus it may have 

been obvious to the Seventh Circuit that Janmark knew where its victim 

was located (and presumably where it would feel the brunt of the injury) 

when it committed its tortious acts. To that end, Janmark may not have 

discussed the tortfeasor's knowledge because it simply was not in 

dispute. As we discuss below, however, we believe that the presence of 

such knowledge, without more, is itself insufficient to satisfy Calder's 

"expressly aimed" requirement. Moreover, our speculation about what 

facts may have been obvious to the panel that decided Janmark does not 

change the fact that that case does not apply the"expressly aimed" 

requirement and, to the contrary, contains the overly broad language 

discussed supra. 

 18 
to the Ninth Circuit in Cybersell, Inc. v. Cybersell, Inc., 130 

F.3d 414 (9th Cir. 1997). In that case, the plaintiff, an 

Arizona corporation, provided Internet marketing services 

through its web site under the registered service mark 

"Cybersell." The defendant, a Florida corporation, provided 

business consulting services through its web site under the 

same name. At the time the defendant chose the name

"Cybersell" for its venture, the plaintiff 's web site was not 

operational, and the Patent and Trademark Office had not 

granted plaintiff 's application for the service mark. See 130 

F.3d at 415. Plaintiff instituted suit in the District of 

Arizona, alleging, inter alia, trademark infringement, and 

defendant moved to dismiss for lack of personal 

jurisdiction. The Ninth Circuit rejected the argument that 

jurisdiction was proper under Calder, reasoning that the 

defendant's web site was "not aimed intentionally at 

Arizona knowing that harm was likely to be caused there." 

Id. at 420. As with our hypothetical, even if we assume that 

the plaintiff suffered its injury in Arizona (which the Ninth 

Circuit did not, see id.), Calder would not support

jurisdiction here since the defendants could not have 

expressly aimed their conduct at the forum.7 

We recognize that a conservative reading of Calder may 

significantly limit the types of business tort cases that will 

_________________________________________________________________ 

7. In contrast is the Ninth Circuit's decision in Panavision Int'l, L.P. 

v. 

Toeppen, 141 F.3d 1316 (9th Cir. 1998), another cyberspace case. There, 

the plaintiff (who manufactured motion picture camera equipment and 

whose principal place of business was in California) brought suit against 

an Illinois defendant in California for dilution of its trademark. The 

defendant allegedly had established a web site using Panavision's 

trademark as its domain name, preventing Panavision from registering 

its own web site on the Internet with the domain name "Panavision.com," 

in order to force Panavision to pay the defendant a fee to use the name 

on the Internet. See id. at 1321. The defendant moved to dismiss on 

personal jurisdiction grounds. The Ninth Circuit disagreed, holding the 

jurisdiction was proper under Calder since the defendant knew that 

plaintiff would suffer harm in California because, as in Calder, the heart 

of the motion picture industry is located there. See id. at 1321-22. In 

our 

view, the dispositive facts of Panavision closely track those of Calder 

(i.e., 

the unique relationship between the motion picture industry and the 

forum), and therefore this case does not undermine the analysis in 

Cybersell. 

 19 
satisfy the requirements of personal jurisdiction via the 

"effects test." Yet, we believe that such a result is consistent 

with the Supreme Court's intended relationship between 

Calder and the traditional minimum contacts analysis. 

Calder did not change the fact that even in intentional tort 

cases the jurisdictional inquiry "focuses on the relations 

among the defendant, the forum, and the litigation." See 

Keeton, 465 U.S. at 780. Nor did Calder carve out a special 

intentional torts exception to the traditional specific 

jurisdiction analysis, so that a plaintiff could always sue in 

his or her home state. What Calder did was recognize that, 

under certain circumstances, the "plaintiff 's residence in 

the forum may, because of defendant's relationship with 

the plaintiff, enhance defendant's contacts with the forum. 

Plaintiff 's residence may be the focus of the activities of the 

defendant out of which the suit arises." Keeton, 465 U.S. at 

780 (citing Calder, 465 U.S. at 788-89). That is, the unique 

relations among the defendant, the forum, the intentional 

tort, and the plaintiff may under certain circumstances 

render the defendant's contacts with the forum -- which 

otherwise would not satisfy the requirements of due process 

-- sufficient. 

Accordingly, we reject Janmark and agree with the 

conclusion reached by the First, Fourth, Fifth, Eighth, 

Ninth, and Tenth Circuits that jurisdiction under Calder 

requires more than a finding that the harm caused by the 

defendant's intentional tort is primarily felt within the 

forum. Moreover, we agree with the Far West, Southmark, 

and Esab Group decisions that the Calder "effects test" can 

only be satisfied if the plaintiff can point to contacts which 

demonstrate that the defendant expressly aimed its tortious 

conduct at the forum, and thereby made the forum the 

focal point of the tortious activity. Simply asserting that the 

defendant knew that the plaintiff 's principal place of 

business was located in the forum would be insufficient in 

itself to meet this requirement.8 The defendant must 

_________________________________________________________________ 

8. Thus, to return to the hypothetical raised above, the fact that Y (our 

tortfeasing widget concern) knew that W (its competitor) was owned by 

X (the New Jersey company) and that X would experience the injury 

caused by the drop in W's value at its headquarters in New Jersey would 

not by itself be enough to meet X's burden to show that Y "expressly 

aimed" its conduct at New Jersey. 

 20 
"manifest behavior intentionally targeted at and focused on" 

the forum for Calder to be satisfied. Esab Group, 126 F.3d 

at 625; see also Southmark, 852 F.2d at 773. In the typical 

case, this will require some type of "entry" into the forum 

state by the defendant. As even the Seventh Circuit has 

noted: 

 In Calder as in all the other cases that have come to 

 our attention in which jurisdiction over a suit involving 

 intellectual property (when broadly defined to include 

 reputation, so that it includes Calder itself) was 

 upheld, the defendant had done more than brought 

 about an injury to an interest located in a particular 

 state. The defendant had also "entered" the state in 

 some fashion, as by the sale (in Calder) of the 

 magazine containing the defamatory material.

Indianapolis Colts, Inc. v. Metropolitan Baltimore Football 

Club, 34 F.3d 410, 412 (7th Cir. 1994). 

To summarize, we believe that the Calder"effects test" 

requires the plaintiff to show the following: 

 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;9 

_________________________________________________________________ 

9. We note that, although we need not accept or reject for purposes of 

this appeal the proposition that the effects of Kiekert's conduct were 

"felt" by Imo in New Jersey, the proper resolution of this issue is far 

from 

clear. The alleged harm in this case was felt by a corporation, not an 

individual, and at least one court has concluded that a corporation "does 

not suffer harm in a particular geographic location in the same sense 

that an individual does." Core-Vent Corp. v. Nobel Indus., 11 F.3d 1482, 

1486 (9th Cir. 1993). Moreover, a distinction could arguably be made 

between torts against a corporation resulting in specific property damage 

(e.g., if Kiekert had physically destroyed Imo property) and those torts 

resulting in more inchoate injuries (e.g., a decrease in stock value), 

like 

those alleged here. At the same time, this court has previously stated in 

a personal jurisdiction case, albeit in dicta, that"[i]t is questionable 

judicial policy to apply a different jurisdictional rule to individuals 

than 

to corporations, to small enterprises than to large ones. To indulge in 

 21 
 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; 

As the above discussion suggests, in order to make out the 

third prong of this test, 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. 

C. Application 

In view of the foregoing analysis, the critical question in 

this case is whether Imo has pointed to acts undertaken by 

Kiekert which demonstrate that it "expressly aimed" its 

tortious conduct at New Jersey, distinguishing it from the 

defendants in Far West, Southmark, and Esab Group. Only 

if this requirement is satisfied need we consider whether 

the brunt of the harm was actually suffered by Imo in the 

forum. At oral argument, counsel for Imo drew our 

attention to the following seven facts: 

 1) Kiekert knew that Imo was headquartered in New 

 Jersey; 

 2) Kiekert knew that Imo had agreed to sell its stock 

 in Roltra to Valeo; 

 3) Kiekert engaged in a series of phone calls, letters 

 and meetings which interfered with the proposed 

 Valeo contract; 

 4) Kiekert acted with the intent to scuttle the 

 contract; 

_________________________________________________________________ 

such ad hoc determinations creates confusion where there should be 

certainty. . . ." Dollar Savings Bank v. First Security Bank of Utah, 746 

F.2d 208, 214 (3d Cir. 1984). That case dealt with different factual 

circumstances and was not concerned with whether a plaintiff "felt" the 

effects of a defendant's tortious conduct for Calder analysis purposes. 

However, because our decision is based on other grounds, we need not 

decide how our reasoning in Dollar would apply in the context of a 

Calder analysis. 

 22 
 5) There were two calls from New Jersey to Kiekert in 

 Germany; 

 6) Kiekert wrote to First Boston in New York, and it 

 was reasonably foreseeable that such 

 correspondence would be transmitted to Imo in 

 New Jersey, as evidenced by the fact that it was 

 Imo (not First Boston) who actually authored the 

 response; 

 7) Imo put Kiekert on notice that its conduct would 

 subject it to litigation in the United States. 

According to Imo, these facts indicate that Kiekert acted in 

a manner that specifically involved New Jersey, and

therefore Calder's targeting requirement is satisfied. 

Essentially, this list boils down to two congeries of facts: 

(1) what Kiekert knew or intended when it undertook its 

allegedly tortious conduct; and (2) what steps Kiekert 

actually took during the relevant time period. It appears 

from the facts as alleged by Imo that Kiekert (unlike the 

defendant in our hypothetical or the defendant in Cybersell) 

knew that Imo was the parent company of Roltra, and that 

Imo was located in New Jersey. And for purposes of the 

present appeal, we must assume that Kiekert knew of the 

proposed sale to Valeo and acted with the intent to

undermine that contract. While knowledge that the plaintiff 

is located in the forum is necessary to the application of 

Calder, as discussed above it alone is insufficient to satisfy 

the targeting prong of the effects test. For the same 

reasons, the fact that Imo advised Kiekert that it would 

pursue litigation in the United States sheds no light on 

whether Kiekert aimed its conduct at New Jersey. 

Thus, we are left to determine whether the series of 

letters, phone calls, and meetings between June and

September 1996 sufficiently demonstrate that Kiekert 

expressly aimed its conduct at New Jersey. As we discussed 

supra, the chronology includes the following events: 

 a) The June 17 letter from Kiekert to First Boston 

 stating that the Kiekert licenses could not be 

 transferred if Roltra was sold to one of Kiekert's 

 competitors; 

 23 
 b) The July 8 letter from Kiekert to Roltra stating that 

 Kiekert would terminate the licensing agreement if 

 Roltra's shares were sold to a competitor; 

 c) Imo's letter in response to Kiekert's letter to First 

 Boston, dated July 9; 

 d) Imo's letter in response to Kiekert's letter to Roltra, 

 dated August 12; 

 e) On two occasions during this time, Imo's general 

 counsel telephoned Kiekert from Imo's New Jersey 

 offices. During these conversations, Kiekert

 confirmed that if Imo sold the Roltra shares to a 

 competitor, the license agreement would be 

 terminated; 

 f) The August 27 meeting in Toronto between

 representatives of Kiekert and Imo; 

 g) The September 10 meetings between Kiekert and 

 Imo in Germany. 

We first consider the face-to-face meetings between

Kiekert and Imo. Since none of these meetings occurred in 

New Jersey (or even in the United States), they provide no 

help to Imo in demonstrating that Kiekert targeted the 

forum. We turn next to the written correspondence. There 

is no dispute that all of Kiekert's letters were sent either to 

First Boston in New York or to Roltra in Italy. Imo submits, 

however, that when Kiekert mailed these letters, it was 

reasonably foreseeable that they would wind up in New 

Jersey, evidenced by the fact that the responses to both 

letters came from Imo's New Jersey offices. Even viewed in 

the light most favorable to Imo, we believe that these facts 

are insufficient to demonstrate that Kiekert expressly aimed 

its conduct at New Jersey. Kiekert's two letters were sent to 

New York and to Italy; even if it reasonably knew that those 

letters would be forwarded to Imo in New Jersey, Kiekert's 

acts were not directed there. To the contrary, an 

examination of these letters reveals that Kiekert was 

focusing its attention on First Boston and on Roltra, not on 

Imo. 

This position is supported by Reynolds v. Int'l Amateur 

Athletic Fed., 23 F.3d 1110 (6th Cir. 1994). The plaintiff in 

 24 
that case -- Butch Reynolds, a world-class runner-- was 

administered a drug test which yielded a positive result. As 

a consequence, he was banned by the International 

Amateur Athletic Federation ("IAAF") from competing for 

two years. In addition, the IAAF issued a press release 

disclosing the results of the drug test. Reynolds brought 

suit in Ohio, alleging that the drug test was flawed and 

claiming defamation and tortious interference with 

contractual relations. 

The court rejected Reynolds' claim that jurisdiction lay 

under Calder, holding that: "First, the press release 

concerned Reynolds' activities in Monaco, not Ohio. Second, 

the source of the controversial report was the drug sample 

taken in Monaco and the laboratory testing in France. 

Third, Reynolds is an international athlete whose 

professional reputation is not centered in Ohio. Fourth, the 

defendant itself did not publish or circulate the report in 

Ohio; Ohio periodicals disseminated the report. Fifth, Ohio 

was not the `focal point' of the press release. The fact that 

the IAAF could foresee that the report would be circulated 

and have an effect in Ohio is not, in itself, enough to create 

personal jurisdiction." 23 F.3d at 1120. 

The fact that Imo phoned Kiekert in response to Kiekert's 

letters does not change the analysis. The fact is that Kiekert 

never placed a phone call to Imo in New Jersey; all of the 

calls originated with Imo. Imo contends that this fact 

should not be dispositive, and that these calls should still 

count as contacts with the forum. Assuming for the sake of 

argument that we could even characterize these calls as 

contacts, we fail to see how they demonstrate Kiekert's 

targeting of New Jersey as the situs of its tortious acts. Cf. 

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

F.2d 551, 556 (3d Cir. 1993) (follow-up calls by defendant 

into the forum insufficient to satisfy minimum contacts). 

Moreover, cases like Southmark and Far West make clear 

that a few calls or letters into the forum may be of only 

marginal import if the dispute is focused outside the forum. 

In Southmark, for example: 

 [T]he oral agreement with which USLICO allegedly 

 interfered was apparently negotiated and made in 

 Atlanta and/or New York, and there is no evidence that 

 25 
 the agreement was made or to be performed in Texas 

 or governed by Texas law. Life, the other party to the 

 purported agreement, is not a resident of Texas. . .. 

 The company whose stock Southmark wished to 

 purchase and that USLICO did purchase was not a 

 Texas corporation and it did not, so far as the record 

 shows, do any business in Texas. Nor is there evidence 

 that the stock was located or purchased in Texas. 

Southmark, 851 F.2d at 772-73 (footnote omitted). 

Much the same could be said here. The solicitation of 

bids for Roltra was done in New York, and the bid with 

which Kiekert allegedly interfered came from a French 

company. The subject of the bidding was an Italian 

company, and the licensing agreement upon which the

allegedly tortious activity was based appears to be governed 

by German law. In that light, the fact that it may be 

reasonably foreseeable that First Boston and/or Roltra 

would have passed Kiekert's letters on to Imo in New Jersey 

(and that Imo called Kiekert from New Jersey) cannot be 

sufficient to overcome the clear implication from the 

surrounding facts that New Jersey was not the focus of the 

dispute. See also Far West, 46 F.3d 1071, 1077 (finding 

that "phone calls and letters are not necessarily sufficient 

in themselves to establish minimum contacts" when the 

focus of the dispute is outside the forum). 

In sum, Imo cannot demonstrate that Kiekert expressly 

aimed its tortious conduct at New Jersey. Failing this, Imo 

cannot rely on the Calder effects test to confer specific 

jurisdiction based on Kiekert's allegedly intentional tortious 

conduct. Since Imo cannot meet the minimum contacts

requirement of the Due Process Clause, we will affirm the 

order of the district court dismissing this case for lack of 

personal jurisdiction. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 26