NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

J & H INTERNATIONAL,

 Plaintiff,

v.

KARACA ZUCCIYE TIC. SAN A.S.

Doing business as KRC, and

KRC,

 Defendants.

 Civil Action No. 2:10-CV-03975

 (SDW)(MCA)

OPINION

October 3, 2012

WIGENTON, District Judge.

Before this Court is Defendant Karaca Zucciye Tic. San A.S.’s motion to vacate a default 

judgment pursuant to Federal Rules of Civil Procedure 55(c) and 60(b). Also before this Court is 

Defendant’s motion to dismiss Plaintiff J & H International’s complaint pursuant to Federal Rule 

of Civil Procedure 12(b)(2), (5), and forum non conveniens. This Court, having considered the 

parties’ submissions, decides this matter without oral argument pursuant to Federal Rule of Civil 

Procedure 78. For the reasons stated below, this Court GRANTS Defendants’ motion in part 

and DENIES it in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff J & H International (“J & H”) is suing Defendant corporation Karaca Zucciye 

Tic. San A.S., doing business as KRC (“KRC”) and KRC, for failure to perform on a contract, 

for breach of a contract for sale of goods, and for breach of the implied covenant of good faith 

and fair dealing. (See Compl. ¶¶ 1-2, 24-43.) Plaintiff is a New Jersey corporation, with its 

Case 2:10-cv-03975-SDW-SCM Document 29 Filed 10/03/12 Page 1 of 16 PageID: 565
2

primary place of business in Morris Plains, New Jersey. (See id. ¶ 1.) KRC is a corporation 

formed under the laws of Turkey, with its primary place of business in Istanbul, Turkey. (See id. 

¶¶ 2-4.) On or about April 21, 2008, J & H, a designer and seller of flatware, agreed to sell KRC 

stainless steel forks, knives, and spoons stamped or etched with KRC’s name for US

$2,619,000.00. (See id. ¶¶ 7, 10.) 

Between July 2008 and November 20, 2008, J & H shipped KRC’s entire order of 

finished flatware in successive portions from J & H’s factory in China. (See id. ¶ 9.) By January, 

2009, KRC had received the entire order and had not reported any shortages. (See id.) However, 

in February and April of 2009, KRC complained to J & H about manufacturing defects allegedly 

present in multiple shipments of flatware, and requested permission to return the shipments for 

repair. (See id. ¶¶ 11-12, 16.) J & H granted $1,167,136.00 in price offsets to KRC in the form of 

credits on other, non-defective, shipments that KRC had received. (See id ¶ 19.) J & H alleges 

that the understanding between the parties at the time was that any price offsets granted for 

quality issues would balance out any damages KRC incurred1 and J & H would receive full 

payment for all shipments, once it received the alleged defective cutlery back at the 

manufacturer, polished the flatware anew, resent it to KRC, and KRC accepted the cured 

shipment as a finished product. (See id.¶ 14.) 

Across the table, KRC demanded reimbursement from J & H for US $437,939.00 which

KRC had allegedly paid in import duties and value added taxes on the defective goods before it 

would return the goods to J & H. (See id. ¶¶ 20-21.) However, it is J & H’s understanding that 

under “Turkish import duty law, [] KRC would not owe any import duty or tax on the refinished 

goods returning to Turkey.” (Id. ¶ 21.) The parties failed to reach a compromise or agreement 

 1

While most of the offsets were believed to have balanced out any damages KRC would have incurred, there was

$180,982.56 of the total balance of offsets, which Plaintiff alleges was granted not as compensation for a 

craftsmanship issue, but as funding to help KRC get two flatware shipments “out of port.” (Compl. ¶ 17.)

Case 2:10-cv-03975-SDW-SCM Document 29 Filed 10/03/12 Page 2 of 16 PageID: 566
3

regarding the import tax. (See id. ¶ 22). As a result, KRC has retained possession of the defective 

goods in Turkey, and the offsets J & H granted KRC to serve as compensation until the flatware 

is refinished have not been repaid. (See id. ¶¶ 22-23.)

On August 8, 2011, this Court entered a default judgment against KRC, in the amount of 

$1,167,136.00, for failure to appear pursuant to Federal Rules of Civil Procedure Rule 55(a) and 

55(b)(1). (See Dkt . No. 17.) On June 17, 2012, KRC submitted a motion for an Order vacating 

the entry of a default judgment pursuant to Fed. R. Civ. P. 55(c) and 60(b). (See Dkt. No. 19.) In 

the motion, KRC additionally asked the Court to dismiss J & H’s complaint “pursuant to Fed. R. 

Civ. P. 12(b)(2), (5) and forum non conveniens grounds.” (Id.)

II. LEGAL STANDARD

a. Motion to Vacate

Federal Rule of Civil Procedure 55(c) provides that a “court may set aside an entry of default 

for good cause, and . . . may set aside a default judgment under Rule 60(b).” Fed. R. Civ. P.

55(c). A court may set aside a default judgment pursuant to Rule 60(b) for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered 

evidence that, with reasonable diligence, could not have been discovered in time 

to move for a new trial under Rule 59(b); (3) fraud, ... misrepresentation, or 

misconduct by an opposing party; (4) the judgment is void; (5) the judgment has 

been satisfied, released or discharged; it is based on an earlier judgment that has 

been reversed or vacated; or applying it prospectively is no longer equitable; or 

(6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b). The “decision to set aside . . . a default judgment pursuant to [Rule 60(b)] 

is left primarily to the discretion of the district court.” See United States v. $55,518.55 in U.S. 

Currency, 728 F.2d 192, 194 (3d Cir. 1984) (footnote and internal citation omitted). Generally, 

default judgments are disfavored by courts. See id. at 194. In deciding a motion to vacate a 

default judgment, “a standard of ‘liberality,’ rather than ‘strictness’ should be applied . . . and . . . 

‘[a]ny doubt should be resolved in favor of the petition to set aside the judgment so that cases 

Case 2:10-cv-03975-SDW-SCM Document 29 Filed 10/03/12 Page 3 of 16 PageID: 567
4

may be decided on their merits.’” Medunic v. Lederer, 533 F.2d 891, 893-94 (3d Cir. 1976) 

(quoting Tozer v. Charles A. Krause Milling Co., 189 F.2d 242, 245-46 (3d Cir. 1951)). 

Furthermore, “‘matters involving large sums should not be determined by default judgment if it 

can reasonably be avoided’ since ‘the interests of justice are best served by a trial on the 

merits.’” Livingston Powdered Metal, Inc. v. NLRB, 669 F.2d 133, 136-37 (3d Cir. 1982) 

(quoting Tozer, 189 F.2d at 245). Here, KRC has not specified the particular section under Rule 

60(b) upon which the motion is brought; however, construing KRC’s motion liberally, KRC

appears to base its motion on the first subsection.

“’[I]n exercising its discretion in granting or denying a motion to set aside a . . . default 

judgment under Rule 60(b)(1),’ [a] district court should consider: ‘(1) whether the plaintiff will 

be prejudiced; (2) whether the defendant has a meritorious defense; [and] (3) whether the default 

was the result of the defendant's culpable conduct.’” United States v. $90,745.88 Contained in 

Account Number 9506826724 Held in the Name of and/or for the Benefit of AmiriMbubu Auto 

Sales, LLC., at Bank of America, 1125 Rt. 22 W., Bridgewater, New Jersey 08807, 465 F. App’x 

143, 145 (3d Cir. 2012) (citing $55,518.55 in U.S. Currency, 728 F.2d at 195). Although 

determining whether a defendant has a meritorious defense is listed as the second factor, the 

Third Circuit Court of Appeals as well as district courts within the circuit have consistently 

acknowledged that consideration of the second factor is a threshold issue. See Nationwide Mut. 

Ins. Co. v. Starlight Ballroom Dance Club, Inc.. 175 F. App’x 519, 522 (3d Cir. 2006) (citing 

Hritz v. Woma Corp., 732 F.2d 1178, 1181 (3d Cir. 1984)). Therefore, here, the second factor 

will be examined first.

Case 2:10-cv-03975-SDW-SCM Document 29 Filed 10/03/12 Page 4 of 16 PageID: 568
5

b. Insufficient Service of Process

When bringing a motion to dismiss for insufficient service of process, “[t]he party making 

the service has the burden of demonstrating its validity[.]” In re Bulk (Extruded) Graphite 

Prods. Antitrust Litig., No. 02-6030, 2006 WL 1084093, at *2 (D.N.J. April 24, 2006) (internal 

citation and quotation marks omitted). “If service of process was not sufficient, the Court has 

discretion to dismiss the action[.]” Id. “Service upon foreign defendants is governed by Rule 

4(f), which requires that service be made in the manner prescribed by the Hague Convention or 

by foreign law . . .” as detailed below. Id.

c. Lack of Personal Jurisdiction

Federal Rule of Civil Procedure 4(e) “authorizes personal jurisdiction over non-resident 

defendants to the extent permissible under the law of the state where the district court sits.” 

Pennzoil Prod. Co. v. Colelli & Assoc., Inc., 149 F.3d 197, 200 (3d Cir. 1998) (citation omitted). 

New Jersey's long-arm statute permits personal jurisdiction over non-resident defendants to the 

extent allowed by the Due Process Clause of the Fourteenth Amendment. N.J. Ct. R. 4:4-4; 

DeJames v. Magnificence Carriers, Inc., 654 F.2d 280, 284 (3d. Cir. 1981), cert. denied, 454 

U.S. 1085 (1981). Therefore, this Court's analysis is strictly limited to determining whether 

personal jurisdiction over Defendants is proper and comports with due process. This Court is 

guided by the two-part analysis delineated in Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 

(1985). First, this Court must determine whether minimum contacts exist between Defendant and 

the forum state. See id. at 476-77. If this Court finds that the requisite minimum contacts are 

present, it must then consider whether the exercise of personal jurisdiction would nevertheless 

Case 2:10-cv-03975-SDW-SCM Document 29 Filed 10/03/12 Page 5 of 16 PageID: 569
6

offend “traditional notions of fair play and substantial justice” inherent in the Due Process 

Clause. Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). 2

Where a defendant files a motion to dismiss for lack of personal jurisdiction under 

Federal Rule of Civil Procedure 12(b)(2), the plaintiff bears the burden of demonstrating, with 

“reasonable particularity,” that a defendant's minimum contacts with the forum state are 

sufficient to establish personal jurisdiction. Carteret Sav. Bank, F.A. v. Shushan, 954 F.2d 141, 

145-46 (3d Cir. 1992); Time Share Vacation v. Atlantic Resorts, Ltd., 735 F.2d 61, 63 (3d Cir.

1984). When a plaintiff’s burden is triggered before discovery has commenced, plaintiff need 

only proffer a prima facie case to establish personal jurisdiction. See LaRose v. Spondo Mfg., 

Inc., 712 F. Supp. 455, 458 (D.N.J. 1989). Only upon the plaintiff demonstrating sufficient 

minimum contacts between a defendant and the forum state may this Court consider whether 

exercise of jurisdiction would comport with “fair play and substantial justice.” Burger King, 471 

U.S. at 476 (quoting Int'l. Shoe, 326 U.S. at 320); Pennzoil, 149 F.3d at 201. In reviewing a 

motion brought under Federal Rule of Civil Procedure 12(b)(2), a court “must accept all of the 

plaintiff's allegations as true and construe disputed facts in favor of the plaintiff.” Cartaret, 954 

F.2d at 142 n.1.

d. Forum Non Conveniens

Pursuant to the doctrine of forum non conveniens, a court may refuse to hear a case 

despite having jurisdiction if doing so would better serve the parties’ convenience and would be 

in the interest of justice. See Gulf Oil Corp v. Gilbert, 330 U.S. 501, 504 (1947). Analysis of a

 2

This Court takes notice that a plaintiff may also seek personal jurisdiction on a general basis based on a defendant's 

“continuous and systematic” contacts with the forum state. Int'l. Shoe Co., 326 U.S. at 317; see also Reliance Steel 

Prods. Co. v. Watson, Ess, Marshall & Enggas, 675 F.2d 587 (3d Cir. 1982). However, where, as here, Defendants 

are alleged to have never entered the State of New Jersey, Plaintiff’s cause of action can arise only “out of

[Defendants’] contacts with the forum . . . [thereby requiring this Court] . . . to exercise ‘specific jurisdiction.’” 

IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 259 (3d Cir. 1998) (citing Helicopteros Nacionales de Colombia, S.A. 

v. Hall, 466 U.S. 408, 414 n. 8 (1984)).

Case 2:10-cv-03975-SDW-SCM Document 29 Filed 10/03/12 Page 6 of 16 PageID: 570
7

forum non conveniens argument requires consideration of three elements: (1) the availability of 

an adequate alternative forum; (2) the amount of deference due to the plaintiff’s choice of forum; 

and (3) the balance of the private and public interest factors. See Chigurupati v. Zenotech LLC, 

No. 11–3429, 2012 WL 1743097, at *1 (3d Cir. May 17, 2012); Lony v. E.I. Du Pont de 

Nemours & Co., 886 F.2d 628, 633 (3d Cir. 1989).

III. DISCUSSION

a. Motion to Vacate Default Judgment

i. Meritorious Defense

“The showing of a meritorious defense is accomplished when ‘allegations of defendant's 

answer, if established on trial, would constitute a complete defense to the action.’” $55,518.55 in 

U.S. Currency, 728 F.2d at 195 (citing Tozer, 189 F.2d at 244). A defendant’s allegations must 

be specific. See $90, 745.88 Contained in Account Number, 465 F. App’x 143, 145 (3d Cir. 

2012) (citing $55,518.55 in U.S. Currency, 728 F.2d at 196). Simple denials or conclusionary 

statements will not suffice because “‘[d]efault judgments cannot be set aside simply because of . 

. . ambiguous conclusions’” or “threadbare assertions[.]” Id. Once a defendant sets forth the 

grounds for his defense, the court is charged with evaluating whether the defense shows promise. 

See Nationwide Mut. Ins. Co. v. Starlight Ballroom Dance Club, Inc., 175 F. App’x 519, 522 (3d 

Cir. 2006).

Here, KRC asserts three defenses: (1) the fact that J & H provided KRC with defective 

goods and that KRC rejected the goods, (2) this Court’s lack of personal jurisdiction, and (3) 

forum non conveniens. (See Defs.’ Br. 13-14.) J & H counters by contending that KRC is 

incapable of establishing a meritorious defense because case law requires a meritorious defense 

be set forth in a defendant’s answer, and here KRC has not filed one. (See Pl.’s Br. 23.) While J 

Case 2:10-cv-03975-SDW-SCM Document 29 Filed 10/03/12 Page 7 of 16 PageID: 571
8

& H’s argument is reasonable given the well-settled elements of a vacating a default judgment, 

Third Circuit case law makes it evident that a defendant’s assertion of a defense need not be set 

forth in an answer. See Haugh v. Myer, No. CIV. A. 06-2975 (JHR), 2007 WL 496815 (D.N.J. Feb. 13, 

2007) (“Even though Defendants have not answered Plaintiffs' complaint, they have laid out a defense in 

their motion to vacate the default....Therefore, Defendants can show a meritorious defense.”); Royal Ins. 

Co. of Am. v. Packaging Coordinators, Inc., No. CIV. A. 00-3231, 2000 WL 1586081,* 1 (E.D. Pa. Oct. 

24, 2000) (“To assess [whether defendant alleged fact which could constitute a meritorious defense], the 

court may examine the defendant's answer, or if none was filed, the allegations in its motion to vacate the 

default judgment[.]” (citing Emcasco Ins. Co. v. Sambrick, 834 F.2d 71, 73 (3d Cir. 1987)). If this were 

not the case, motions to vacate default judgments concerning failures to answer a pleading would 

be per se denied. J & H also contends that KRC has not set forth a meritorious defense because 

KRC has not proffered any proof that the goods in question were defective. (See Pl.’s Br. 22.) J 

& H’s second argument is misplaced as proof of allegations by either party is not required at this 

stage of the litigation between the parties. 

Regarding KRC’s defenses, KRC’s first alleged defense, if established at trial, would 

constitute a complete defense. KRC has alleged and J & H admitted in its complaint that the 

flatware was defective. (See Defs.’ Br. 13, Compl. ¶ 12.) KRC also alleged and J & H also 

admitted in its complaint that KRC rejected the goods upon learning of the defects, and offered 

to return the flatware to J & H. (See id.) This Court is satisfied that J & H has alleged specific 

facts that would constitute a complete defense if proven at trial.3

ii. Lack of Culpability

In considering a defendant’s culpability, Pioneer Inv. Services. Co. v. Brunswick Assocs.

Ltd. Partnership, 507 U.S. 380, 395 is controlling. Pioneer states in pertinent part that 

 3

KRC’s showing of a meritorious defense on this basis alleviates this Court’s need to discuss KRC’s additional 

proffered defense.

Case 2:10-cv-03975-SDW-SCM Document 29 Filed 10/03/12 Page 8 of 16 PageID: 572
9

Because Congress has provided no other guideposts for determining what sorts of 

neglect will be considered ‘excusable’, we conclude that the determination is at 

bottom an equitable one, taking account of all relevant circumstances surrounding 

the party’s omission. These include . . . the danger of prejudice to the debtor, the 

length of the delay and its potential impact on judicial proceedings, the reason for 

the delay, including whether it was within the reasonable control of the movant, 

and whether the movant acted in good faith.

Pioneer Ins. Servs. Co., 507 U.S. at 395. In order for a defendant to be culpable for a

default, more than mere negligence must be present. See Nationwide Mut. Ins. Co., 175 F. 

App’x at 523 (citing Hritz v. Woma Corp., 732 F.2d 1178, 1183 (3d Cir. 1984)). “Reckless 

disregard for repeated communications from [a plaintiff] and the court . . . can satisfy the 

culpable conduct standard.” Hritz, 732 F.2d at 1183. Generally, “lawyer's errors, the type which 

usually provide for ‘successful malpractice suits by the injured client’ do not fall under the 

excusable neglect standard.” Reckling v. Okechuku, No. 07-1699 (GEB), 2007 WL 2473831, * 6 

(D.N.J. Aug. 27, 2007) (citing McCurry v. Adventist Health Sys./Sunbelt, Inc., 298 F.2d 586, 595 

(6th Cir. 2002)). Nonetheless, parties should only be penalized for the negligence of their 

attorney in “extreme or unusual cases.” Electric Realty Assoc. v. M.H. Speer, No. 87-6334, 1988 

WL 68739 at * 2 (E.D. Pa. June 28, 1988).

Here, KRC was notified about the commencement of this action; however, KRC failed to 

file an answer or participate in this case due to advice from a Turkish lawyer. (See Defs.’ Br. 

27.) The Turkish lawyer advised KRC that since: (1) KRC is a Turkish company, (2) service of 

process was defective, and (3) the goods in dispute were located in Turkey, the case would have 

to be adjudicated in Turkey and KRC should commence an action in Turkey. (See id.) KRC

contends that in reliance on this advice, it commenced a suit in Turkey and was unaware of its 

obligation to cooperate with J & H’s lawsuit in the U.S. (See id.) KRC’s reliance on the Turkish 

attorney was not unreasonable, and does not constitute inexcusable or culpable conduct as it was 

not in bad faith.

Case 2:10-cv-03975-SDW-SCM Document 29 Filed 10/03/12 Page 9 of 16 PageID: 573
10

iii. Prejudice

In the context of a motion to vacate a default judgment, prejudice is established when a 

plaintiff's “ability to pursue the claim has been hindered . . . [by circumstances such as,] loss of 

available evidence, increased potential for fraud or collusion, or substantial reliance upon the 

judgment.” Feliciano v. Reliant Tooling Co., 691 F.2d 653, 657 (3d Cir. 1982). “Delay in 

realizing satisfaction on a claim rarely serves to establish the degree of prejudice sufficient to 

prevent the opening [of] a default judgment entered at an early stage of the proceeding.” Id. at 

656-57 (citing Tozer, 189 F.2d at 246). Here, J & H argues that it has been and will be 

prejudiced if the default judgment is vacated because of the alleged financial strains it suffers as 

a result of KRC’s refusal to return the allegedly defective goods. In light of the case law set 

forth above, Plaintiff has not made a sufficient showing that it will be prejudiced if the default 

judgment is vacated.

b. Improper Service

Regarding service of process on a foreign entity, Federal Rule of Civil Procedure 4 

authorizes process to be served “by any internationally agreed means of service that is 

reasonably calculated to give notice, such as those authorized by the Hague Convention 

[“Convention”] . . . .” Fed. R. Civ. P. 4(f)(1); see also Fed. R. Civ. P. 4(h)(2). The Supreme 

Court has held that “compliance with the Convention is mandatory in all cases to which it 

applies[.]” Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 705 (1988). Both the 

United States and Turkey are signatories to the Hague Convention. See EOI Corp. v. Med. Mktg. 

Ltd., 172 F.R.D. 133, 135, 138 n. 13, 141-42 (D.N.J. 1997). “The Hague Convention requires 

each [signatory] country to establish a central authority to receive requests for service of 

process.” Zions First Nat’l Bank v. Moto Diesel Mexicana, S.A., de C.V., No. 08–10528, 2011 

Case 2:10-cv-03975-SDW-SCM Document 29 Filed 10/03/12 Page 10 of 16 PageID: 574
11

WL 2669608, at * 1 (E.D. Mich. July 07, 2011) (citing Volkswagenwerk, 486 U.S. at 698). “The 

central authority then serves the documents in accordance with the law of that country.” Id. The 

Convention also allows for service by alternate means, including personal service or service by 

mail “[p]rovided the State of destination does not object.” Hague Service Convention art. 10, 

Nov. 15, 1949, 20 U.S.T. 361; see also Volkswagenwerk, 486 U.S. at 699. Turkey, however, 

objected to alternate forms of service when it became a signatory of the Convention. See EOI 

Corp., 172 F.R.D. at 138 n.13.

Here, KRC contends that service was improper because the person on whom service was 

made, Ms. Gamze Gölbaşl, a former receptionist for KRC, was allegedly not suitable to receive 

service. (See Def.’s Br. 8-9.) Specifically, KRC argues that under Turkish law, service of 

process on a company must be made by serving “an authorized person that is entitled to act on 

behalf of the company and who has been officially deemed a ‘signatory’ in writing by the 

company.” (Id. at 8.) KRC further contends that if service is made in any other manner, service 

is deficient. (See id.) KRC argues that because service was made on Ms. Gamze Gölbaşl, service 

was improper. (See id. at 9.) Contrarily, J & H contends that service was proper because it

complied with Federal Rule of Procedure 4 and with the Hague Convention. J & H’s argument 

is persuasive.

KRC’s exception with J & H’s service of process concerns the suitability of the person 

served, not J & H’s compliance with the federal rules or the Hague Convention. The purpose of 

a central authority, one of many, is to “monitor and ensure proper service.” EOI Corp., 172 

F.R.D. at 136. J & H fulfilled its burden by complying with the relevant statutes. Therefore, 

KRC’s argument is misplaced. 

Case 2:10-cv-03975-SDW-SCM Document 29 Filed 10/03/12 Page 11 of 16 PageID: 575
12

c. Lack of Personal Jurisdiction

Personal jurisdiction is established through a minimum contacts analysis when the defendant 

is not present in the forum. Int’l Shoe Co., 326 U.S.at 316. A defendant is subject to suit in the 

forum if the defendant purposely conducted acts towards a forum and the claim arises out of that 

purposeful conduct. See id. at 319; Hanson v. Denckla, 357 U.S. 235, 253 (1958). The 

defendant’s minimum contacts with the forum must be of sufficient quality and nature so that a 

suit in the forum does not offend “‘traditional notions of fair play and substantial justice.’” Int’l 

Shoe Co. 326 U.S. at 316, 319 (citations omitted); Denckla, 357 U.S. 235, 253. That is, in order 

to establish personal jurisdiction the plaintiff must establish that: (1) defendant had minimum 

contacts with the forum, and (2) based on those contacts a court’s exercise of specific jurisdiction 

“would comport with ‘fair play and substantial justice.’” Burger King Corp. v. Rudzewicz, 471 

U.S. 462, 476 (1985) (quoting Int’l Shoe Co., 326 U.S. at 320). 

i. Minimum Contacts

The benchmark for exercising personal jurisdiction is whether a defendant’s “conduct and 

connection with a forum State are such that [it] should reasonably anticipate being haled into 

court [in said forum].” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). 

The reason for this test is to ensure that a defendant “will not be haled into a jurisdiction solely 

as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts or of the ‘unilateral activity of 

another party or a third person[.]’” Burger King Corp., 471 U.S. at 475 (quoting Keeton v. 

Hustler Magazine, Inc., 465 U.S. 770, 774 (1980), Helicopteros Nacionales de Colombia, S.A., 

466 U.S. at 417. Therefore, 

where [a] defendant . . . has created ‘continuing obligations’ between [itself] and 

residents of the forum, [it] manifestly has availed [itself] of the privilege of 

conducting business there and because [its] activities are shielded by ‘the benefits 

Case 2:10-cv-03975-SDW-SCM Document 29 Filed 10/03/12 Page 12 of 16 PageID: 576
13

and protections’ of the forum’s laws it is presumptively not unreasonable to 

require it to submit to the burdens of litigation in that forum as well.

Id. at 475-76 (internal citations omitted).

KRC argues that it does not have minimum contacts with New Jersey as it is not a 

corporation authorized to do business in New Jersey, has no retail stores therein, does not 

export goods to New Jersey, has no employees in New Jersey, does not advertise in New 

Jersey, has not directed any employees to travel to New Jersey, and has no email address, 

phone numbers, physical address or mailing address in New Jersey. (See Defs.’ Br. 17-

18.) Additionally, KRC maintains that its contract with J & H is not enough to establish 

minimum contacts with New Jersey. (See id. at 18 (citing Burger King Corp., 471 U.S. at 

462).) Karaca’s argument, however, does not address the benchmark test enumerated by 

the Supreme Court. While KRC is correct that a contract alone does not “automatically 

establish sufficient minimum contacts in [another] party’s home forum”, a court’s 

analysis does not stop with the existence of a contract. Grand Enter. Grp., LTD, 988 

F.2d at 482. Courts are to also consider “prior negotiations and contemplated future 

consequences.” Burger King Corp., 471 U.S. at 479.

KRC’s contractual relationship with J & H is such that it should reasonably 

anticipate being haled into court in New Jersey. By contracting with J & H, KRC created 

continuing obligations between the parties, thereby availing itself of the privilege of 

conducting business in New Jersey. Furthermore, the contemplated future consequence 

of the contract was arguably an ongoing relationship given that the contract produced 

multiple shipments and communications between the parties. Moreover, since the 

inception of the relationship between the parties, J & H’s offices have been in Morris 

Plains, New Jersey, and KRC’s principal contacts with J & H are both employees from J 

Case 2:10-cv-03975-SDW-SCM Document 29 Filed 10/03/12 Page 13 of 16 PageID: 577
14

& H’s New Jersey office. (See Pl.’s Br. 29.) Additionally, there exist numerous emails 

between KRC and J & H that were sent to J & H’s New Jersey office. (See id.) 

Therefore, KRC did purposefully conduct acts towards New Jersey and it is apparent that 

J & H’s claims arise from KRC’s purposeful conduct. However, more glaring than the 

effects of KRC’s contacts is the effect of KRC’s conduct. KRC cannot earnestly argue 

that it did not anticipate or contemplate the possibility of being haled into court in New 

Jersey after having withheld possession of J & H’s allegedly defective goods

ii. Fair Play and Substantial Justice

Once a court finds that minimum contacts exist, the burden shifts to the defendant to 

demonstrate that exercise of jurisdiction does not comport with fair play and substantial justice. 

See Carteret Sav. Bank, F.A., 954 F.2d at 150. “The burden on a defendant who wishes to show 

an absence of fairness or lack of substantial justice is heavy.” Grand Enter. Group, Ltd., 988 

F.2d at 483. “To determine whether a defendant has made his case, a district court must consider 

(1) the burden on the defendant; (2) the interests of the forum state; and (3) plaintiff’s interest in 

obtaining relief.” Fiscus v. Combus Finance AG, No. 03-1328 (JBS), 2006 WL 1722607 * 8 

(D.N.J. June 20, 2006). In cases involving a foreign defendant, “[t]he United States Supreme 

Court has recognized that defending a lawsuit in a foreign land is a burden that should be 

considered.” Grand Enter. Group, Ltd., 988 F.2d at 483 (citing Asahi Metal Indus. Co. v. 

Superior Court, 480 U.S. 102, 114 (1987). Nonetheless, “when minimum contacts have been 

established, often the interests of the plaintiff and the forum in the exercise of jurisdiction will 

justify even the serious burdens placed on the alien defendant.” Asahi, 480 U.S. at 114.

Here, regarding the forum’s interest in adjudicating this matter, the Supreme Court has noted 

that “[a] State generally has a ‘manifest interest’ in providing its residents with a convenient 

Case 2:10-cv-03975-SDW-SCM Document 29 Filed 10/03/12 Page 14 of 16 PageID: 578
15

forum for redressing injuries inflicted by out-of-state actors.” Burger King Corp., 471 U.S. at 

473 (citations omitted). Concerning J & H’s interest in obtaining relief, J & H clearly has an 

interest in retrieving its goods. KRC has not set forth an argument regarding its burden in having 

to litigate a matter in the United States. Nonetheless, since minimum contacts have been 

established, J & H’s interest and the forum’s interest would likely outweigh KRC’s.

d. Forum non Conveniens

In deciding a motion to dismiss for forum non conveniens, a district court must: (1) “[decide] 

whether an adequate alternative forum exists to hear the case,” (2) “evaluate the amount of 

deference due to the plaintiff's choice of forum,” and (3) “consider and balance the private and 

public interest factors[.]” Delta Air Lines, Inc. v. Chimet, S.p.A., 619 F.3d 288, 295 (3d Cir.

2010). The private interest factors include

relative ease of access to sources of proof; availability of compulsory process for 

attendance of unwilling, and the cost of obtaining attendance of willing, 

witnesses; possibility of view of premises, if view would be appropriate to the 

action; and all other practical problems that make trial of a case easy, expeditious 

and inexpensive

Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947). The public interest factors include

the administrative difficulties flowing from court congestion; the ‘local interest in 

having localized controversies decided at home’; the interest in having the trial of 

a diversity case in a forum that is at home with the law that must govern the 

action; the avoidance of unnecessary problems in conflict of laws, or in the 

application of foreign law; and the unfairness of burdening citizens in an 

unrelated forum with jury duty.

Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6 (1981)(citing Gulf Oil Corp., 330 U.S. at 

501). 

Case 2:10-cv-03975-SDW-SCM Document 29 Filed 10/03/12 Page 15 of 16 PageID: 579
16

i. Adequate Alternative Forum

In order for KRC to show that there is an adequate alternative forum, two conditions must be 

met: (1) “[KRC] must be amenable to process in the alternative forum” and (2) “the subject 

matter of the lawsuit must be cognizable in the alternative forum in order to provide J & H with 

appropriate redress.” Fiscus, 2006 WL 1722607 at * 12.

Here, KRC argues that Turkey is an adequate alternative forum simply by stating that 

other courts in this Circuit have found Turkey to be an adequate alternative forum. (See Def.’s 

Br. 23-24; Def.’s Reply Br. 8.) KRC also argues that Turkey is an adequate alternative forum 

because the contract was executed in Turkey, the flatware was shipped to Turkey, and because at 

some point in time one of J & H’s employees traveled to Turkey to discuss the quality of the 

flatware. (See Def.’s Br. 23-24.) KRC’s arguments are deficient as they do not address the 

elements of an adequate alternative forum. KRC’s failure to show the existence of an adequate 

alternative forum precludes this court from evaluating the remaining two factors in the forum non 

conveniens analysis. Therefore, KRC has failed to meet its burden of showing that New Jersey is 

an inconvenient forum.

IV. CONCLUSION

For the reasons set forth above, Defendants’ motion is GRANTED in part and DENIED in 

part.

s/Susan D. Wigenton, U.S.D.J.

Orig: Clerk

cc: Hon. Madeline Cox Arleo, U.S.M.J.

Parties 

Case 2:10-cv-03975-SDW-SCM Document 29 Filed 10/03/12 Page 16 of 16 PageID: 580