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. e du/thir dc ir c uit_1998/215Filed 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 re quires us, for the first time, to apply the Supreme Court' s decision in Calder v. Jones, 465 U.S. 783 (1984), to a busin ess tort. It comes before us on the appeal of the plaintiff, Imo Industries Inc. ("Imo"), a multinational corporatio n with its principal place of business in New Jersey, from an order of the district court dismissing its action pursuant t o Fed. R. Civ. P. 12(b)(2) for lack of personal jurisdiction over defendant Kiekert AG ("Kiekert"), a German corporat ion. The complaint alleges that Kiekert tortiously inter fered with

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

a French corporation that was one of Kiekert's comp etitors. The asserted mechanism by which the tort was accomplished was a series of letters sent by Kieker t to the Italian subsidiary and to the New York investmentfi rm 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 we nt through. According to Imo, the sale was never consummated because of these threats, causing it
considerable loss.

Imo contends that personal jurisdiction over Kieker t was proper based upon its contacts with Imo in New Jers ey 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 requireme nts of due process, the question whether personal jurisdic tion can be exercised here depends upon the applicability to the facts of Calder, in which the Supreme Court found p ersonal jurisdiction to be proper over nonresident defendan ts that committed an intentional tort outside the forum, th e unique effects of which caused damage to the plaintiff wit hin the forum. We believe that for Calder to apply, the pla intiff must allege facts sufficient to meet a three-prong test. First,
the defendant must have committed an intentional to rt. Second, the plaintiff must have felt the brunt of t he harm caused by that tort in the forum, such that the for um can be said to be the focal point of the harm suffered by the plaintiff as a result of the tort. Third, the defen dant must have expressly aimed his tortious conduct at the fo rum, such that the forum can be said to be the focal poi nt of the tortious activity.

Applying this test to the present facts, we conclud e that personal jurisdiction does not exist here since Imo has not pointed to sufficient facts demonstrating that Kiek ert "expressly aimed" its tortious conduct at New Jerse y. To the contrary, the focus of the dispute -- i.e. the prop osed sale of an Italian company to a French company and a cla im of rights by a German company pursuant to a license agreement apparently governed by German law -- and the

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

appear to be focused outside the forum. The order o f the
district court will therefore be affirmed.

I. Facts and Procedural History

For purposes of this appeal, we accept the plaintif f '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, 40 9-10 (E.D. Pa. 1981)). However, the plaintiff bears the burden of proving that personal jurisdiction is proper. Carte ret Savings Bank, 954 F.2d at 146 (Once a defendant rai ses the defense of lack of personal jurisdiction, "the plaintiff bears the burden to prove, by a preponderance of ev idence, 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 doo r latch systems, is a corporation organized, existing under the laws of, and having its principal place of busi ness 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 doe s not now engage, nor has it ever engaged in any of the f ollowing activities in New Jersey: "the manufacture of any p roducts; 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 tele phone number, or a bank account; the ownership of any rea l or personal property; the employment of any employees or agents; or the requirement of or payment of taxes."

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1. Kiekert's promotional literature projects that t he United States market will comprise thirty percent of its sales by the ye ar 2000. Since this is but a projection, it does not affect the outcome he re.

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

claims.

Plaintiff Imo, a multinational corporation, is inco rporated in Delaware with its principal place of business in Lawrenceville, New Jersey. Imo has 22 manufacturing facilities around the world, including plants in Ge rmany, the United Kingdom, France and Australia. Approxima tely 90% of Imo's products are marketed outside of the U nited States, and approximately 34% of Imo's total net sa les for 1995 were in these foreign markets. Most relevant t o the present case is the fact that Imo owns all of the s hares of an Italian company, Roltra Morse, S.p.A. ("Roltra") , which manufactures automobile door latches using technolo gy licensed from Kiekert. The licensing agreement was negotiated in Germany and Italy in 1993 and it prov ides 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 solic ited bids from corporations interested in acquiring Imo's sha res of Roltra. Valeo, S.A. ("Valeo"), a French corporation and one of Kiekert's competitors, submitted a bid of $72 mi llion for the shares. Kiekert also submitted a bid, though fo r only $30 million. Imo and Valeo thereafter proceeded to prepare final agreements to close the sale of Roltra's stoc k 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 s ent a letter to First Boston in New York stating that, un der its agreement with Roltra, Kiekert had the right to rev oke its license for the door latch technology if Roltra's s hares were sold to one of its competitors. More specifically, the letter to First Boston, dated June 17, 1996, stated in pertin ent 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 hav e to retire [its] acceptance of production for these pro ducts immediately which are manufactured under our licens e."

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

revoked, Roltra's value as a going concern would be severely impacted. In addition, Kiekert wrote to Ro ltra in Italy on July 8, 1996, similarly stating Kiekert's intent to terminate the licensing agreement if Roltra's share s 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 s hares to any third party." Imo demanded "that [Kiekert] ceas e and desist from making such statements to any third par ty," and advised that if it "continue[s] to make such st atements [it] . . . will be held responsible for all damages that [Roltra] and/or its shareholders suffer from such representa tions." Roltra also forwarded the July 8 letter to Imo in N ew Jersey. Imo again responded directly to Kiekert by letter dated August 12, stating that its "tortious and ill egal conduct is seriously jeopardizing [our] ability to close this transaction," and that "unless you immediately with draw your threats of termination, we are prepared tofile lawsuits in all appropriate jurisdictions, including the Uni ted 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. F inally, Imo requested meetings with Kiekert in an attempt to re solve the matter. One such meeting was held in Toronto on August 27, 1996, and two more were held on Septembe r 10 of that year in Germany. These discussions apparent ly failed to persuade Kiekert to change its position.

On October 28, 1996, Valeo advised Imo of its withd rawal from negotiations concerning the sale of Roltra's s hares. By letter, it informed Imo that "[w]e have concluded t hat, irrespective of the likelihood that Kiekert's posit ion would prevail, Kiekert's position regarding its license c an be expected to have a disruptive impact on the busines s of

6Roltra . . . and in particular create disturbances with

customers during the period of any litigation."

Imo thereafter sued in the District Court for the D istrict of New Jersey, alleging that Kiekert's actions cons tituted 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. Acco rding to Imo, Valeo's decision to break off the contract neg otiations was directly caused by Kiekert's steadfast assertio n of its intent to revoke its license if the proposed sale w as consummated. As a result, Imo alleges that it has s uffered injuries in numerous forms due to its inability to consummate the deal. First, Imo alleges that the sa le to Valeo would have resulted in a profit of more than $20 million. Second, Imo submits that, because of its i nability to sell the Roltra shares, it has been forced to re classify Roltra as a continuing operation, with a concomitan t 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 recognit ion of $4.8 million in previously deferred 1996 losses rel ating 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 p ersonal jurisdiction, contending that it did not have the r equisite minimum contacts with New Jersey to sustain jurisdi ction in that forum. The district court granted the motio n. We
review de novo the district court's dismissal for l ack 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 quest ion 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 repeat ed countless times in the jurisprudence, little will b e served by

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

personal jurisdiction over a defendant, a federal c ourt sitting in diversity must undertake a two-step inqu iry. First, the court must apply the relevant state long -arm statute to see if it permits the exercise of person al jurisdiction; then, the court must apply the precep ts of the
Due Process Clause of the Constitution. In New Jers ey, this inquiry is collapsed into a single step because the New Jersey long-arm statute permits the exercise of per sonal jurisdiction to the fullest limits of due process. See DeJames v. Magnificence Carriers, Inc., 654 F.2d 28 0, 284 (3d Cir. 1981). This being the case, the New Jersey Supreme Court has made it clear that New Jersey cou rts look to federal law for the interpretation of the l imits 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 n ot required to establish personal jurisdiction over a nonresident defendant. See Burger King Corp. v. Rud zewicz, 471 U.S. 462, 476 (1985). Instead, the plaintiff mu st show that the defendant has purposefully directed its ac tivities toward the residents of the forum state, see id. a t 472, or otherwise "purposefully avail[ed] itself of the pri vilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." See Hans on 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 t he forum, the court is said to exercise "specific jurisdictio n." See Helicopteros Nacionales de Columbia, S.A. v. Hall , 466 U.S. 408, 414 n.8 (1984).2 In order for specific jurisdi ction to be

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

contacts with the forum, the court is said to exercise "gene ral jurisdiction." See Helicopteros, 466 U.S. at 414 & n.9. To establish g eneral jurisdiction over a defendant, the contacts must be shown to be" continuous and systematic". See id. at 416. Imo does not contend t hat the New Jersey courts could exercise general jurisdiction over Kie kert.

8properly exercised under the Due Process Clause, th e

plaintiff must satisfy a two-part test. First, the plaintiff must show that the defendant has constitutionally
sufficient "minimum contacts" with the forum. See B urger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985). Second, for jurisdiction to be exercised the court must det ermine, in its discretion, "that to do so would comport with`t raditional notions of fair play and substantial justice.' " Se e Vetrotex, 75 F.3d at 150-51 (citing International Shoe Co. v. Washington, 326 U.S. 310 (1945)). Although this cas e raises some interesting issues regarding the applic ation of the "fair play and substantial justice" standard, w e 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 n ot lie here on the basis of Kiekert's alleged contacts with the forum alone, for (as we detail in the margin) they are fa r too small to comport with the requirements of due process. 3 Since

(Text continued on page 11)

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3. In brief, Imo argues that specific jurisdiction can be premised on the following contacts: (1) the June 17 letter from Kie kert to First Boston; (2) the July 8 letter from Kiekert to Roltra; (3) the t wo 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 Germ any. Although
neither of Kiekert's letters were sent to New Jerse y, Imo asserts that Kiekert "certainly knew" that its correspondence wo uld both be transmitted to Imo in New Jersey and cause injury t o 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 who le, are insufficient to demonstrate, even at a minimal level, that Kieke rt has purposefully directed its activities toward the forum or has pur posefully availed
itself of the privilege of conducting its activities withi n the forum. The weight of authority among the courts of appeal is that min imal communication between the defendant and the plaintiff in the foru m state, without more, will not subject the defendant to the jurisdiction of that state's court system. For instance, this court in Carteret Saving s 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 th is authority. See,

e.g.,

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

denied ___ U.S. ___, 117 S. Ct. 437 (1996) ("Orderi ng a product or service by telephone from a company in a different state does not subject the customer to that state's jurisdiction."); Far W est Capital, Inc. v. Towne, 46 F.3d 1071, 1077 (10th Cir. 1995) ("It is well-established that phone calls and letters are not necessarily suffici ent in themselves to establish minimum contacts."); Reynolds v. Int'l Am ateur Athletic Fed., 23 F.3d 1110, 1119 (6th Cir. 1994) ("The use of int erstate facilities such as the telephone and mail is a secondary or ancilla ry factor and cannot alone provide the minimum contacts required by due process.") (quoting Scullin Steel Co. v. National Railway Utilization C orp., 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 def endant).

In the present case, not only are the communication s limited in quantity, but there is not even one direct act of"e ntry" into New Jersey by Kiekert -- the letters were sent to Italy and Ne w York, the phone calls were placed by Imo itself, and the meetings were he ld in Canada and Germany. While in some cases there might be merit t o the argument that correspondence sent to a third-party outside t he forum which foreseeably would wind up within the forum could we igh in favor of a finding of specific jurisdiction being properly exe rcised, 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, whic h strike us as purely unilateral conduct by Imo. See Hanson, 357 U .S. at 253 ("[T]he unilateral activity of those who claim some relatio nship with a nonresident defendant cannot satisfy the requiremen t of contact with the
forum State.").

There is also an aspect of foreseeability that we b elieve is missing in this case. The Supreme Court has concluded that"for eseeability 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 co nduct and connection
with the forum State are such that he should reason ably anticipate being haled into court there." World-Wide Volkswage n Corp. v. Woodson, 444 U.S. 286, 295-97 (1980) (internal quotation mar ks omitted). We do not believe that it was reasonably foreseeable to K iekert that its connection with New Jersey was such that that it sh ould 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. Im o took no part at all in these contract negotiations. It was perfe ctly reasonable,

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

the application of Calder v. Jones, supra, can chan ge the outcome. Generally speaking, under Calder an intent ional tort directed at the plaintiff and having sufficien t impact upon it in the forum may suffice to enhance otherwi se insufficient contacts with the forum such that the "minimum contacts" prong of the Due Process test is satisfied. See Keeton v. Hustler Magazine, Inc., 46 5 U.S. 770, 780 (1984). We therefore concentrate our minim um 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 act ion in California against the author and editor of an arti cle which had appeared in the National Enquirer, and which sh e claimed was defamatory. The article alleged that Jo nes had a problem with alcohol which prevented her from ful filling her professional obligations. Although the Enquirer was distributed nationally, it had its largest circulat ion in California. Defendant South, the reporter, did most of his research in Florida, relying on phone calls to Cali fornia for
information. Defendant Calder had no such contacts with California. He reviewed and approved the initial ev aluation of the topic of the article and edited drafts to it sfinal form. See id. at 785-86. Both defendants, residents of Fl orida, moved to dismiss Jones' suit for lack of personal jurisdiction.

The Court found that the exercise of personal juris diction over the defendants was proper. The Court concluded :

The allegedly libelous story concerned the C alifornia activities of a California resident. It impu gned the professionalism of an entertainer whose tele vision
career was centered in California. The artic le was drawn from California sources, and the brunt of the

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therefore, for Kiekert to believe when it entered i nto the agreement, that it would be able to enforce its rights under the co ntract without being subject to the jurisdiction of the New Jersey court s.

11harm, in terms of both respondent's emotiona l distress

and the injury to her professional reputatio n, was suffered in California. In sum, California i s the focal point both of the story and of the harm suff ered. Jurisdiction over petitioners is therefore p roper in
California based on the "effects" of their F lorida conduct in California. . . . [T]heir intenti onal, and allegedly tortious, actions were expressly a imed at California. Petitioner South wrote and petit ioner Calder edited an article that they knew would have a potentially devastating impact upon responde nt. And they knew that the brunt of that injury woul d be felt by respondent in the State in which she lives a nd works and in which the National Enquirer has its l argest
circulation.

Id. at 788-90 (footnote omitted). It is from this p assage 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 to rt by certain acts outside the forum which have a particu lar 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 desig ned to prevent Imo from selling Roltra to one of Kiekert's competitors," and because "Kiekert's tortious condu ct was specifically aimed at and caused injury to Imo (a N ew Jersey resident) within the State of New Jersey." A ppellant'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 prope rly exercised by the California court in that case, the Supreme Court relied on three principal findings. First, th e defendant committed an intentional tort. Second, th e forum was the focal point of the harm suffered by the pla intiff as a result of that tort. Third, the forum was the foc al point of

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4. We note that the interpretation of Calder in Ca rteret Savings Bank was not necessary to our holding, and was therefore dic ta.

12the tortious activity in the sense that the tort wa s

"expressly aimed" at the forum. Essential was a cor ollary finding that the defendants knew that the "brunt" o f 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 ver sions of these factors as the "effects test," yielding a mix ture 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 consi dered the application of Calder to business torts have ad opted a narrow construction. One such case is Far West Capi tal, Inc. v. Towne, 46 F.3d 1071 (10th Cir. 1995), which assessed the following facts to determine the exist ence vel non of personal jurisdiction in Utah. Towne, a Neva da resident who owned real property in Nevada, negotia ted with plaintiff Far West Capital ("FWC"), a Utah cor poration, which was interested in developing Towne's land. Al though the negotiations occurred in Nevada, Towne sent a n umber of letters and faxes to the plaintiff in Utah, and there was an escrow account set up in Utah. Furthermore, duri ng the negotiations Towne hired a consultant, a Utah resid ent, who occasionally picked up materials from FWC in Ut ah. 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 thir d party in California regarding financing for the con struction of a power plant on the property. Towne interfered, and FWC brought suit in Utah for, inter alia, intention al
interference with contractual relations. See id. a t 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 unde r Calder because Towne had intentionally committed torts aga inst it in Utah. The Tenth Circuit held that jurisdiction w ould not
lie under Calder. See id. at 1080. The court noted initially that Calder did not set forth a per se rule that th e 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 co urt held

13that it must still examine the "prior negotiations and

contemplated future consequences along with the ter ms of the contract and the parties' actual course of deal ing" and "the contacts created by the out-of-state defendant in committing the alleged tort." Id. at 1079-80. The c ourt concluded that, on the facts of this case:

[T]here is no indication that Utah had anyth ing but a fortuitous role in the parties past dealing or would have any role in their continuing relationsh ip. . . .
There is thus no evidence that defendants' a lleged torts had any connection to Utah beyond plaintiff 's corporate domicile. Although FWC argues that it
suffered the financial effects of these alle ged torts in Utah where it is incorporated, we hold that under Calder and its progeny, the defendants' cont acts with Utah are insufficient to establish personal jurisdiction
in this case.

Id. at 1080.

On facts strikingly similar to our own, the Fifth C ircuit 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 li e properly in Texas. Defendant Life Investors Inc. (" Life") owned 22% of the outstanding shares of Internationa l Bank ("IB") stock. Southmark, a Georgia corporation with its principal place of business in Texas, began negotia ting 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 jo ined USLICO as a defendant, claiming tortious interferen ce with the alleged contract and business relations. USLICO , a Virginia corporation, moved to dismiss for lack of personal jurisdiction. Relying principally on Calder, Southm ark contended that the exercise of specific jurisdictio n was proper because USLICO had committed an intentional tort against it in Texas with knowledge that it was a Te xas resident. See id. at 772.

The court rejected this argument, holding that "the re is no evidence that USLICO expressly aimed its alleged ly

14tortious activities at Texas, nor is there evidence that

USLICO knew the brunt of Southmark's injury would b e felt there." Id. Moreover, the court found that "nothing in the record indicates that USLICO expressly aimed its al legedly tortious activities at Texas, or that Texas is even the focal point of USLICO's tortious conduct." Id. at 773. Th e court also underscored the fact that the oral agreement w ith which USLICO allegedly interfered was negotiated ou tside 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 plaintif f had its principal place of business in the forum was a" mere fortuity," and declined to exercise jurisdiction. S ee id. at 773. Importantly, the court reasoned:

While it may be true that USLICO agreed to b uy the stock knowing that Southmark has its princip al 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 U SLICO to anticipate being haled into a Texas court to answer for
its conduct.

Id. In other words, the Fifth Circuit was unconvinc ed 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 cou rt was not persuaded that USLICO's intent to interfere wit h the contractual relations of a company residing in Texa s 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 address ed in Esab Group, Inc. v. Centricut, Inc., 126 F.3d 617 ( 4th Cir. 1997), cert. denied ___U.S. ___, 118 S. Ct. 1364 (1 998). Plaintiff, a Delaware corporation residing in South Carolina, brought suit in South Carolina alleging that the de fendant, a New Hampshire company, participated in a conspira cy to

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

the alleged co-conspirators were either Florida or New Hampshire residents. The only South Carolina "conta ct" in the case was the defendant's knowledge that his acq uisition
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 intentio nally targeted at and focused on South Carolina" under Ca lder.
Id. The court further reasoned that while it is tru e that a corporation "feels" lost sales at its headquarters, permitting
Calder to be satisfied on this basis would mean tha t jurisdiction in intentional tort cases would always be appropriate in the plaintiff 's home state, since t he plaintiff always "feels" the impact of the tort there. Id. at 625-26.

In sum, Far West, Southmark and Esab Group all stan d for the proposition that the mere allegation that t he plaintiff
feels the effect of the defendant's tortious conduc t in the forum because the plaintiff is located there is ins ufficient to satisfy Calder. In all of those cases, the plaintif fs 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 wa s the focal point of the tortious activity. See also Gene ral Electric Capital Corp. v. Grossman, 991 F.2d 1376, 1387-88 ( 8th Cir. 1993) (concluding that Calder is of little hel p to a plaintiff where the "focal point of the alleged wro ngdoing"
occurred outside of the forum even where the "effec ts 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 for um even though plaintiffs felt tortious effect there). More over, Calder requires that the "brunt" of the harm be felt in th e 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 center ed in

the forum.

There is one counterpoint, however, for the Seventh Circuit recently endorsed a broader reading of Cald er. In Janmark, Inc. v. Ready, 132 F.3d 1200 (7th Cir. 199 7), both plaintiff and defendant sold mini shopping car ts

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

Ready (through his company Dreamkeeper) from Califo rnia. Ready believed that he had a copyright in the Dream keeper cart design, and tried to use his copyright claim t o "orchestrate an agreement" among all mini shopping- cart
sellers. See 132 F.3d at 1202. Janmark resisted Rea dy's overtures, and Ready allegedly responded by threate ning Janmark's customers with suits for contributory cop yright infringement. According to Janmark, one such threat induced a customer in New Jersey to cease buying fr om Janmark, which Janmark contended was an intentional tort in Illinois sufficient to establish personal j urisdiction

there under Calder.

The Seventh Circuit found that the Illinois court c ould properly exercise jurisdiction over Ready. The cour t 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." J anmark, 132 F.3d at 1202. The court further opined that sin ce "a wrong does not become a `tort' until an injury has occurred," the complained-of tort of interference w ith prospective economic advantage was not completed un til Janmark's customer in New Jersey canceled his order . Id. Accordingly, the court concluded, the injury (and h ence the tort) occurred in Illinois, and thus jurisdiction w as properly
laid there. Id.

Finding the cases previously cited to be better rea soned,
we decline to follow Janmark. We believe that the S eventh 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 assumi ng that the Seventh Circuit was only referring to inte ntional torts (since Calder clearly was clearly not concern ed with negligence), such a broad sweep fails to accommodat e Calder's emphasis on the fact that the forum must b e the focal point of the harm and that the defendant must expressly aim the tortious activity at the forum. J anmark relies solely on the geographical locus of the harm caused; in doing so, it fails to pay necessary attention to the

17defendant'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 corpo ration incorporated and located in New Jersey, purchases W , a French widget manufacturing company. Further suppos e that Y, another French corporation that also manufa ctures and distributes widgets, interferes with W's prospe ctive business advantage by tortiously acquiring W's larg est customer, causing the value of W's stock to plummet

. Finally, assume that Y was unaware that X had becom e the
owner of W at the time the tortious acts were commi tted. We believe that, under Calder, X would not be able to sue Y for its intentional torts in the New Jersey distr ict 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 c ould
be the victim of its conduct. Under a literal readi ng of Janmark, however, personal jurisdiction would appea r to be appropriate in New Jersey if we concluded (as the J anmark court presumably would) that the injury occurred th ere.6

An analogous situation to our hypothetical was pres ented

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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 w ith W, but is not aware of X, the absentee foreign owner. In Janmark, by co ntrast, there were only two players -- Janmark and Dreamkeeper -- and thus it may have
been obvious to the Seventh Circuit that Janmark kn ew 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, J anmark may not have discussed the tortfeasor's knowledge because it sim ply was not in dispute. As we discuss below, however, we believe t hat the presence of such knowledge, without more, is itself insufficien t to satisfy Calder's "expressly aimed" requirement. Moreover, our specul ation about what facts may have been obvious to the panel that decid ed Janmark does not change the fact that that case does not apply the"e xpressly aimed" requirement and, to the contrary, contains the over ly broad language discussed supra.

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

F.3d 414 (9th Cir. 1997). In that case, the plainti ff, an Arizona corporation, provided Internet marketing se rvices through its web site under the registered service m ark "Cybersell." The defendant, a Florida corporation, provided business consulting services through its web site u nder the
same name. At the time the defendant chose the name "Cybersell" for its venture, the plaintiff 's web s ite was not operational, and the Patent and Trademark Office ha d not granted plaintiff 's application for the service ma rk. See 130
F.3d at 415. Plaintiff instituted suit in the Distr ict of Arizona, alleging, inter alia, trademark infringeme nt, and defendant moved to dismiss for lack of personal jurisdiction. The Ninth Circuit rejected the argume nt that jurisdiction was proper under Calder, reasoning tha t the defendant's web site was "not aimed intentionally a t Arizona knowing that harm was likely to be caused t here." Id. at 420. As with our hypothetical, even if we as sume 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 ha ve expressly aimed their conduct at the forum.7

We recognize that a conservative reading of Calder may significantly limit the types of business tort case s that will

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

v. Toeppen, 141 F.3d 1316 (9th Cir. 1998), another cyb erspace case. There, the plaintiff (who manufactured motion picture came ra 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 usin g Panavision's trademark as its domain name, preventing Panavision from registering
its own web site on the Internet with the domain na me "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 mov ed to dismiss on personal jurisdiction grounds. The Ninth Circuit di sagreed, holding the jurisdiction was proper under Calder since the defe ndant knew that plaintiff would suffer harm in California because, as in Calder, the heart of the motion picture industry is located there. Se e id. at 1321-22. In

our view, the dispositive facts of Panavision closely t rack 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.

19satisfy the requirements of personal jurisdiction v ia the

"effects test." Yet, we believe that such a result is consistent with the Supreme Court's intended relationship betw een Calder and the traditional minimum contacts analysi s. Calder did not change the fact that even in intenti onal tort cases the jurisdictional inquiry "focuses on the re lations 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 spec ific jurisdiction analysis, so that a plaintiff could al ways sue in his or her home state. What Calder did was recogniz e that, under certain circumstances, the "plaintiff 's resi dence in the forum may, because of defendant's relationship with the plaintiff, enhance defendant's contacts with th e forum. Plaintiff 's residence may be the focus of the acti vities of the defendant out of which the suit arises." Keeton, 46 5 U.S. at 780 (citing Calder, 465 U.S. at 788-89). That is, t he unique relations among the defendant, the forum, the inten tional tort, and the plaintiff may under certain circumsta nces render the defendant's contacts with the forum -- w hich 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, Eig hth, Ninth, and Tenth Circuits that jurisdiction under C alder requires more than a finding that the harm caused b y the defendant's intentional tort is primarily felt with in the forum. Moreover, we agree with the Far West, Southm ark, and Esab Group decisions that the Calder "effects test" can only be satisfied if the plaintiff can point to con tacts which demonstrate that the defendant expressly aimed its tortious conduct at the forum, and thereby made the forum th e focal point of the tortious activity. Simply assert ing that the defendant knew that the plaintiff 's principal plac e of
business was located in the forum would be insuffic ient in itself to meet this requirement.8 The defendant mus t

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8. Thus, to return to the hypothetical raised above , the fact that Y (our tortfeasing widget concern) knew that W (its compet itor) was owned by X (the New Jersey company) and that X would experie nce 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 fo cused on"

the forum for Calder to be satisfied. Esab Group, 1 26 F.3d at 625; see also Southmark, 852 F.2d at 773. In the typical case, this will require some type of "entry" into t he forum state by the defendant. As even the Seventh Circuit has

noted:

In Calder as in all the other cases that hav e come to our attention in which jurisdiction over a s uit involving intellectual property (when broadly defined to include reputation, so that it includes Calder itsel f) was upheld, the defendant had done more than bro ught 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 te st" requires the plaintiff to show the following:

1) The defendant committed an intentional to rt;

2) The plaintiff felt the brunt of the harm in the forum
such that the forum can be said to be the fo cal point of the harm suffered by the plaintiff as a result of that tort;9

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9. We note that, although we need not accept or rej ect for purposes of this appeal the proposition that the effects of Kie kert'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 th at 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 sp ecific property damage (e.g., if Kiekert had physically destroyed Imo prop erty) and those torts resulting in more inchoate injuries (e.g., a decrea se in stock value),
like those alleged here. At the same time, this court ha s 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

213) The defendant expressly aimed his tortiou s 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 t hat the defendant knew that the plaintiff would suffer the brunt of the harm caused by the tortious conduct in the foru m, and point to specific activity indicating that the defe ndant expressly aimed its tortious conduct at the forum.

C. Application

In view of the foregoing analysis, the critical que stion in this case is whether Imo has pointed to acts undert aken by Kiekert which demonstrate that it "expressly aimed" its tortious conduct at New Jersey, distinguishing it f rom the defendants in Far West, Southmark, and Esab Group. Only if this requirement is satisfied need we consider w hether 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 i n 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 call s, letters and meetings which interfered with the propo sed Valeo contract;

4) Kiekert acted with the intent to scuttle the
contract;

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such ad hoc determinations creates confusion where there should be certainty. . . ." Dollar Savings Bank v. First Secu rity 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 Calde r analysis purposes. However, because our decision is based on other gro unds, we need not decide how our reasoning in Dollar would apply in t he context of a Calder analysis.

225) There were two calls from New Jersey to K iekert in

Germany;

6) Kiekert wrote to First Boston in New York , and it was reasonably foreseeable that such correspondence would be transmitted to Imo i n 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 conduc t would subject it to litigation in the United State s.

According to Imo, these facts indicate that Kiekert acted in a manner that specifically involved New Jersey, and therefore Calder's targeting requirement is satisfi ed.

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 Kiek ert actually took during the relevant time period. It a ppears from the facts as alleged by Imo that Kiekert (unli ke the defendant in our hypothetical or the defendant in C ybersell) 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 p laintiff is located in the forum is necessary to the applica tion of Calder, as discussed above it alone is insufficient to satisfy the targeting prong of the effects test. For the sa me reasons, the fact that Imo advised Kiekert that it would pursue litigation in the United States sheds no lig ht on whether Kiekert aimed its conduct at New Jersey.

Thus, we are left to determine whether the series o f letters, phone calls, and meetings between June and September 1996 sufficiently demonstrate that Kieker t expressly aimed its conduct at New Jersey. As we di scussed 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 Kie kert's competitors;

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

Kiekert would terminate the licensing agreem ent if Roltra's shares were sold to a competitor;

c) Imo's letter in response to Kiekert's let ter to First Boston, dated July 9;

d) Imo's letter in response to Kiekert's let ter to Roltra, dated August 12;

e) On two occasions during this time, Imo's general counsel telephoned Kiekert from Imo's New Je rsey 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 occur red in New Jersey (or even in the United States), they pro vide 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 se nt 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 N ew Jersey, evidenced by the fact that the responses to both letters came from Imo's New Jersey offices. Even vi ewed in the light most favorable to Imo, we believe that th ese facts are insufficient to demonstrate that Kiekert expres sly aimed its conduct at New Jersey. Kiekert's two letters we re sent to New York and to Italy; even if it reasonably knew t hat those letters would be forwarded to Imo in New Jersey, Ki ekert's acts were not directed there. To the contrary, an
examination of these letters reveals that Kiekert w as focusing its attention on First Boston and on Roltr a, not on

Imo.

This position is supported by Reynolds v. Int'l Ama teur Athletic Fed., 23 F.3d 1110 (6th Cir. 1994). The pl aintiff in

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

administered a drug test which yielded a positive r esult. 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 rel ease disclosing the results of the drug test. Reynolds b rought suit in Ohio, alleging that the drug test was flawe d and claiming defamation and tortious interference with
contractual relations.

The court rejected Reynolds' claim that jurisdictio n lay under Calder, holding that: "First, the press relea se 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 Franc e. Third, Reynolds is an international athlete whose professional reputation is not centered in Ohio. Fo urth, the defendant itself did not publish or circulate the r eport in Ohio; Ohio periodicals disseminated the report. Fif th, Ohio was not the `focal point' of the press release. The fact that the IAAF could foresee that the report would be cir culated and have an effect in Ohio is not, in itself, enoug h to create personal jurisdiction." 23 F.3d at 1120.

The fact that Imo phoned Kiekert in response to Kie kert's letters does not change the analysis. The fact is t hat Kiekert never placed a phone call to Imo in New Jersey; all of the calls originated with Imo. Imo contends that this f act should not be dispositive, and that these calls sho uld still count as contacts with the forum. Assuming for the sake of argument that we could even characterize these call s as contacts, we fail to see how they demonstrate Kieke rt's targeting of New Jersey as the situs of its tortiou s acts. Cf. Mellon Bank (East) PSFS, N.A. v. DiVeronica Bros., Inc., 983 F.2d 551, 556 (3d Cir. 1993) (follow-up calls by de fendant into the forum insufficient to satisfy minimum cont acts). Moreover, cases like Southmark and Far West make cl ear that a few calls or letters into the forum may be o f only marginal import if the dispute is focused outside t he forum. In Southmark, for example:

[T]he oral agreement with which USLICO alleg edly interfered was apparently negotiated and mad e in Atlanta and/or New York, and there is no evi dence that

25the agreement was made or to be performed in Texas

or governed by Texas law. Life, the other pa rty to the purported agreement, is not a resident of Te xas. . .. The company whose stock Southmark wished to purchase and that USLICO did purchase was no t a Texas corporation and it did not, so far as the record shows, do any business in Texas. Nor is ther e evidence that the stock was located or purchased in T exas.

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 w ith which Kiekert allegedly interfered came from a Fren ch 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 Rol tra would have passed Kiekert's letters on to Imo in Ne w Jersey (and that Imo called Kiekert from New Jersey) canno t be sufficient to overcome the clear implication from t he surrounding facts that New Jersey was not the focus of the dispute. See also Far West, 46 F.3d 1071, 1077 (fin ding that "phone calls and letters are not necessarily s ufficient
in themselves to establish minimum contacts" when t he focus of the dispute is outside the forum).

In sum, Imo cannot demonstrate that Kiekert express ly aimed its tortious conduct at New Jersey. Failing t his, Imo cannot rely on the Calder effects test to confer sp ecific jurisdiction based on Kiekert's allegedly intention al tortious
conduct. Since Imo cannot meet the minimum contacts requirement of the Due Process Clause, we will affi rm the order of the district court dismissing this case fo r lack of personal jurisdiction.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

26