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UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

NICHOLAS STEVENS,

Plaintiff,

v.

CRAIG WELCH, DAN MOYSE, and 

ACADIASOFT, INC.,

Defendants.

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Civil Action No. 10-3928 (SDW)(MCA)

OPINION

February 7 , 2011

WIGENTON, District Judge.

Before the Court is Defendants Craig Welch (“Welch”), Dan Moyse (“Moyse”),

and AcadiaSoft, Inc.‟s (“AcadiaSoft”) (collectively “Defendants”) Motion to Dismiss 

Plaintiff Nicholas Stevens‟s (“Plaintiff” or “Stevens”) complaint pursuant to Fed. R. Civ. 

P. 12(b)(2) and 12(b)(6).

1

 This Court has jurisdiction pursuant to 28 U.S.C. § 1332. 

Venue is appropriate in this District pursuant to 28 U.S.C. § 1391(a). This Court, having 

considered the parties‟ submissions, decides this matter without oral argument pursuant 

to Fed. R. Civ. P. 78. For the reasons stated below, this Court grants Defendants‟ Motion 

to Dismiss. 

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2004, Welch and Moyse, both residents of Massachusetts, founded AcadiaSoft. 

(Compl. ¶ 9.) AcadiaSoft, a Delaware corporation with its principal place of business in 

Massachusetts, provides “propriety software for managing collateral and margin related 

 

1 Because the Court decides this motion on Fed. R. Civ. P. 12(b)(2), it will not address Defendants‟ Motion 

to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6).

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transactions related to derivatives securities investments.” (Id. at ¶¶ 4, 10.) AcadiaSoft 

developed a software program, Acadia Collateral Management (“ACM”), to “process 

these investments.” (Id. at ¶ 10.) AcadiaSoft‟s customers include “investment managers, 

insurance companies, banks, corporations, mutual funds and hedge funds engaged in 

investment management activities.” (Id.) 

In May 2005, Welch allegedly approached Plaintiff Stevens, a resident of New 

Jersey, about working at AcadiaSoft. (Id. at ¶ 11.) Stevens, who would work from his 

home in New Jersey, would be responsible for “provid[ing] sales and business 

development services of” ACM, “developing strategic business relationships to further 

penetrate the derivatives market,” and “assist[ing] in identifying and influencing potential 

buyers for [] AcadiaSoft.” (Id.) Plaintiff maintains, and Defendants dispute, that because 

Fidelty Investments was AcadiaSoft‟s only customer at that time, Defendants orally 

offered him “„sweat equity‟ in AcadiaSoft, which was expressed as a percentage of what 

Welch would receive upon the sale of AcadiaSoft.” (Id. at ¶ 12.) This “percentage was 

quoted at 5% or $1 [m]illion.” (Id.) Moreover, Stevens alleges that Welch purported that 

AcadiaSoft would be sold within three years. (Id.) 

Plaintiff contends that he agreed to work for Defendants pursuant to the above 

terms (the “Contract”). In addition, on May 11, 2005, Stevens entered into a 

Confidentiality Agreement (the “Agreement”) with AcadiaSoft. (Aff. of Dan Moyse ¶ 2.)

Relevant to this motion are Clause 7, which addresses future relations between the 

parties, and Clause 8, the forum selection clause. 

Clause 7 reads as follows:

Unless and until a definitive agreement between Nick 

Stevens and Acadia has been executed with respect to any 

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transaction that may be discussed between them, neither 

Nick Stevens nor Acadia will be under any legal obligation 

of any kind whatsoever with respect to such transaction, by 

virtue of any other written or oral expression with respect 

to such transaction, by any officers, directors, general 

partners, employees, counsel, financial advisors or other 

representatives of Acadia or Nick Stevens, except for the 

matters specifically agreed to in this [] Agreement. 

(Defs.‟ Ex. A ¶ 7) (emphasis added). Clause 8 provides that:

This Agreement shall be governed by and construed in 

accordance with the laws of the Commonwealth of 

Massachusetts, without giving effect to the conflicts laws 

of Massachusetts. Any dispute arising out of this 

Agreement, if litigated, shall be resolved by Courts of the 

Commonwealth of Massachusetts, and the parties hereby 

consent to the jurisdiction of such courts and agree that 

they are a convenient forum.

(Id. at ¶ 8) (emphasis added).

Although Stevens alleges that he “embarked on an aggressive campaign to contact 

and introduce ACM . . . to the investment community,” he did not make a sale during his 

tenure at AcadiaSoft. (Compl. ¶ 14.) However, Stevens maintains that he identified two 

potential buyers for AcadiaSoft, Omgeo and ICAP, but Welch and Moyse refused to 

negotiate in good faith with the potential buyers. (Id. at ¶¶ 14-16, 24-26.) Stevens 

asserts that he ultimately terminated his employment with Defendants in March 2009 

because he was receiving “little to no compensation.” (Id. at ¶ 17.) At this time, 

AcadiaSoft had yet to be sold.

Subsequently, on June 18, 2010, Plaintiff filed a complaint against Defendants in 

the Superior Court of New Jersey, Union County, alleging breaching of contract, 

misrepresentation, tortiousinterference with economic opportunity, breach of fiduciary 

duty and the covenant of good faith and fair dealing, quantum meruit, unjust enrichment, 

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promissory estoppel, and constructive discharge. (Id. at ¶¶ 19-87.) Thereafter, on 

August 3, 2010, Defendants removed the action to the United States District Court for 

New Jersey and filed the subject Motion to Dismiss. Specifically, Defendants seek to 

dismiss Plaintiff‟s complaint on three alternative grounds: lack of personal jurisdiction; 

the forum selection clause; and failure to state a claim upon which relief can be granted. 

II. DISCUSSION

A. LEGAL STANDARD ESTABLISHING PERSONAL JURISDICTION

To withstand a defendant‟s motion to dismiss for lack of personal jurisdiction 

under Fed. R. Civ. P. 12(b)(2), a plaintiff only needs to allege sufficient facts to establish 

a prima facie case of jurisdiction over the defendant. Mellon Bank (East) PSFS, Nat‟l 

Ass‟n v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992). Similar to a motion to dismiss for 

failure to state a claim under Fed. R. Civ. P. 12(b)(6), a district court is required to accept 

plaintiff‟s allegations and all reasonable inferences therefrom as true, In re Chocolate 

Confectionary Antitrust Litig., 602 F. Supp. 2d. 538, 556 (2009), and “construe disputed 

facts in favor of the plaintiff.” Carteret Sav. Bank, FA v. Shushan, 954 F.2d 141, 142 n.1 

(3d Cir. 1992). 

Pursuant to Fed. R. Civ. P. 4(e), federal “district courts have personal jurisdiction 

over nonresident defendants to the extent authorized under the law of the forum state in 

which the district court sits.” See Sunbelt Corp. v. Noble, Denton & Assocs., Inc., 5 F.3d 

28, 31 (3d Cir. 1993). New Jersey‟s long arm statute provides for personal jurisdiction as 

far as is permitted by the Due Process Clause of the Fourteenth Amendment. Miller 

Yacht Sales, Inc. v. Smith, 384 F.3d 93, 96 (3d Cir. 2004); see Carteret Sav. Bank, FA, 

954 F.2d at 145. Pursuant to the two-prong test articulated in Burger King Corp. v. 

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Rudzewicz, 471 U.S. 462, 476-77 (1985), “[t]he Court must first determine whether 

minimum contacts exist between a defendant and the forum state.” Deflora Lake Dev. 

Assoc. v. Hyde Park Ltd. P‟ship, 2007 U.S. Dist. LEXIS 78869, at *4-5 (D.N.J. Oct. 23, 

2007). Should the Court find that the requisite minimum contacts exist, the Court should 

then consider whether exercise of jurisdiction would comport with fair play and 

substantial justice. Id. at *6 (internal quotations and citations omitted.)

The Fourteenth Amendment permits a state to exercise jurisdiction over a

nonresident defendant only where “the defendant purposefully avails itself of the 

privilege of conducting activities within the forum [s]tate, thus invoking the benefits and 

protections of its laws.” Burger King Corp., 471 U.S. at 475 (quoting Hanson v. 

Denckla, 357 U.S. 235, 253 (1958)). As a result, jurisdiction may not be exercised over a 

defendant merely “on the basis of random, fortuitous, or attenuated contacts, or the 

unilateral activity of another party or a third person.” Deflora Lake Dev. Assoc., 2007 

U.S. Dist. LEXIS 78869, at *6 (internal quotations and citations omitted). Plaintiff has 

the burden of proving that the defendant has purposefully availed himself or herself of the 

forum state. Burke v. Quartey, 969 F. Supp. 921, 924 (D.N.J. 1997).

Personal jurisdiction may be exercised on the basis of either a defendant‟s general 

or specific contacts with the forum state. Id. For a court to exercise general jurisdiction 

over a defendant, the defendant must maintain “continuous and systematic contacts” with 

the forum state. Remick v. Manfredy, 238 F.3d 248, 255 (3d. Cir. 2001). The facts

required to establish general jurisdiction must be “extensive and persuasive.” Reliance 

Steel Prods. Co. v. Watson, Ess, Marshall & Enggas, 675 F.2d 587, 589 (3d Cir. 1982)

(quoting Compagnie des Bauxites de Guinea v. Ins. Co. of N. Am., 651 F.2d 877, 890 

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(3rd Cir. 1981) (Gibbons, J., dissenting)). General jurisdiction can be exercised over a 

defendant “even if the plaintiff‟s [claims] arise[] from the defendant‟s non-forum related 

activities.” Remick, 238 F.3d at 255.2

Alternatively, a plaintiff may rely upon a defendant‟s specific contacts with the 

forum state if it cannot establish general jurisdiction over the defendant. Personal 

jurisdiction pursuant to such contacts is known as specific jurisdiction. Id. Specific 

jurisdiction is present when a claim is related to or arises of out the defendant‟s contacts 

with the forum. Dollar Sav. Bank v. First Sec. Bank of Utah, 746 F.2d 208, 211 (3d Cir. 

1984). To determine whether specific jurisdiction is present, a court must first consider

whether the defendant had the minimum contacts with the forum necessary for the 

defendant to have “reasonably anticipate[d] being haled into court there.” World-Wide 

Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980) (citations omitted). What 

constitutes minimum contacts varies with the “quality and nature of defendant‟s activity.”

Hanson, 357 U.S. at 253. In assessing the sufficiency of the minimum contacts for 

personal jurisdiction, the court must focus on the “relationship among the defendant, the 

forum and the litigation.” Keeton v. Hustler, 465 U.S. 770, 775 (1984) (quoting Shaffer

v. Heitner, 433 U.S. 186, 204 (1977)). Otherwise stated, there must be at least “a single 

deliberate contact” with the forum state that relates to the cause of action. United States 

Golf Ass‟n v. United States Amateur Golf Ass‟n, 690 F. Supp. 317, 320 (D.N.J. 1988). 

The unilateral acts of the plaintiff, however, will not amount to minimum contacts. 

Helicopteros Nacionales de Colombia, S. A. v. Hall, 466 U.S. 408, 417 (1984); Hanson, 

357 U.S. at 253.

 

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Plaintiff is not alleging that general jurisdiction exists over Defendants; therefore, this Court‟s exercise of 

jurisdiction can only be pursuant to Defendants‟ specific contacts with New Jersey.

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Second, assuming minimum contacts is established, a court may inquire whether 

“the assertion of personal jurisdiction would comport with „fair play and substantial 

justice.‟” Burger King Corp., 471 U.S. at 476 (quoting Int‟l Shoe Co. v. Wash., 326 U.S.

310, 320 (1945)). For personal jurisdiction to comport with “fair play and substantial 

justice,” it must be reasonable to require the defendant to defend the suit in the forum 

state. See World-Wide Volkswagen Corp., 444 U.S. at 292. To determine 

reasonableness, a court considers the following factors: 

the burden on the defendant, . . . the forum State‟s interest 

in adjudicating the dispute, the plaintiff‟s interest in 

obtaining convenient and effective relief, . . . the interstate 

judicial system‟s interest in obtaining the most efficient 

resolution of controversies[,] and the shared interest of the 

several States in furthering substantive social policies. 

Id. (internal citations omitted).

In determining whether Plaintiff has established that this Court has specific 

jurisdiction over Defendants, the Court will engage in “a claim-specific analysis,”

Remick, at 238 F.3d 255-56, and consider Plaintiff‟s contract and tort claims separately. 

This is “because there are different considerations in analyzing [specific] jurisdiction 

over contract claims and certain tort claims.” Id.

B. PERSONAL JURISDICTION OVER PLAINTIFF’S CONTRACT CLAIMS

Plaintiff alleges eight claims relating to his Contract with Defendants: (1) breach 

of contract, (2) misrepresentation, (3) breach of the covenant of good faith and fair 

dealing, (4) breach of fiduciary duty, (5) quantum meruit, (6) unjust enrichment, (7) 

promissory estoppel, and (8) constructive discharge (collectively “contract claims”). 

In determining Defendants‟ Motion to Dismiss for lack of personal jurisdiction, 

the Court must first consider whether minimum contacts exist between Defendants and 

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the State of New Jersey such that this Court‟s exercise of specific jurisdiction over 

Defendants comports with due process. Deflora Lake Dev. Assoc., 2007 U.S. Dist. 

LEXIS 78869, at *4-5. This Court finds that insufficient minimum contacts exist to grant 

personal jurisdiction over Defendants.

Plaintiff asserts that minimum contacts exist because: (1) “it is reasonable to infer 

that” he negotiated the Contract from his home in New Jersey; (2) Defendants knew that 

Plaintiff would work from his home as this was part of the Contract; and (3) Plaintiff 

spent seventy percent of his time working in New Jersey. (Pl.‟s Op. Br. 6-7.)

In determining whether Defendants had requisite contacts with New Jersey, the 

Court “must consider the totality of the circumstances, including the location and 

character of the contract negations, the terms of the contract and the parties‟ actual course 

of dealings.” Remick, 238 F.3d at 256. Additionally, without more, the presence of a 

contract between a nonresident and a forum resident is insufficient to establish minimum 

contacts. See Burger King Corp., 471 U.S. at 47. Further, “informational 

communications in furtherance of [a] contract do not establish the purposeful activity 

necessary for a valid assertion of personal jurisdiction over” the Defendants. Sunbelt 

Corp., 5 F.3d at 32.

Although Defendants sent payments to Plaintiff at his home for his services, 

Plaintiff negotiated the Contract from his home, (Pl.‟s Op. Br. 6, 7), and Defendants were 

aware that Plaintiff would work from his home, (Compl. ¶ 11), the “totality of the 

circumstances” dictates against a finding of personal jurisdiction. Plaintiff was a 

salesman who spent a substantial portion, thirty percent, of his time traveling. (Compl. ¶ 

18.) That Plaintiff chose to live in New Jersey and decided to use his home as a base of 

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operations is a mere fortuity, see Keeton, 465 U.S. at 774, and such fortuitousness cannot 

be the basis of personal jurisdiction without raising concerns of due process. Id. This

Court‟s decision is also supported by several other factors. Though Defendants were 

“continuously informed,” (Compl. ¶ 14), of Plaintiff‟s progress in finding business for 

AcadiaSoft, be it by phone or other method of communication, Plaintiff has not alleged 

that Defendants made regular visits or ever came to his New Jersey home office to 

discuss business matters. Compare with Teclordia Tech, Inc., v. Telkom SA Ltd., 458 

F.3d 172 (3d. Cir. 2006) (traveling to the forum state to consult with another party to a 

contract may be sufficient for minimum contacts). In any event, communication by 

phone or other method, even if consistent over a period of time, is not enough to confer 

jurisdiction as this would fall under the category of “informational communication[] in 

furtherance of a contract.” Sunbelt Corp., 5 F.3d. at 32; see also Stuart v. Spademan, 772 

F.2d 1185, 1193 (5th Cir. 1985) (“an exchange of communications between a resident 

and a nonresident in developing a contract is insufficient of itself to be characterized as 

purposeful activity invoking the benefits and protection of the forum state‟s laws”). In 

sum, while the Court recognizes that the parties were involved in some form of business 

arrangement, Defendants‟ involvement in this arrangement within New Jersey did not 

rise to the level required, that of minimum contacts, for this Court to exercise jurisdiction 

over Defendants.

Furthermore, underlying the Court‟s minimum contacts analysis is the question 

whether Defendants could reasonably have anticipated being haled into Court in New 

Jersey. World-Wide Volkswagen Corp., 444 U.S. at 297. The parties, as a result of their 

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execution of the Agreement,

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expected any legal disputes to be resolved in the “Courts of 

the Commonwealth of Massachusetts.” (Defs.‟ Ex. A ¶ 8.) Nonetheless, Plaintiff 

contends that the Agreement is inapplicable because his claims do not “concern the 

improper disclosure of confidential information by any of the parties.” (Pl.‟s Br. 4.) 

Plaintiff‟s narrow interpretation of the Agreement is unpersuasive. As Defendants rightly 

assert, the Agreement does not exclusively pertain to confidentiality. (Defs.‟ Reply Br. 

3.) Specifically, Clause 7 details the parties‟ legal obligations towards each other. (See

Defs.‟ Ex. A ¶ 7.) Accordingly, this Court concludes that Defendants did not anticipate 

being haled into court in New Jersey on the basis of Plaintiff‟s contract claims. Thus, this 

Court has no jurisdiction over Defendants.

Finally, Plaintiff‟s request for limited discovery on this issue is futile, as the 

manner in which Plaintiff was paid will not affect the Court‟s determination.

C. PERSONAL JURISDICTION OVER PLAINTIFF’S TORTIOUS 

INTERFERENCE WITH ECONOMIC OPPORTUNITY

Plaintiff also alleges a tort claim, tortious interference with economic opportunity. 

For this Court to have jurisdiction over the tort claim, Plaintiff must satisfy the “effects 

test” established by the Supreme Court in Calder v. Jones, 465 U.S. 783 (1984). The 

Third Circuit has stated that the “effects test” requires that a plaintiff show that: (1) the 

defendant “committed an intentional tort,” (2) “the plaintiff . . . felt the brunt of the harm 

 

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Plaintiff, relying on Rosenau v. Unifund Corp., 539 F.3d 218, 225 (3d Cir. 2008), argues that the Court 

can only consider the Agreement if this motion is converted into a motion for summary judgment under 

Fed. R. Civ. P. 56(c) because it is outside of the pleadings. (Pl.‟s Br. 1, 4.) However, although the general 

rule is that “a district court ruling on a motion to dismiss may not consider matters extraneous to the 

pleadings . . . an exception to the general rule is that a document integral to or explicitly relied upon in the 

complaint may be considered without converting the motion [to dismiss] into one for summary judgment.” 

In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d. Cir. 1997) (internal quotations and 

citations omitted); see also DiFronzo v. Chiovero, 2011 U.S. App. LEXIS 640, at *4 (3d. Cir. Jan. 12, 

2011). Here, the Court finds that the Agreement is integral to the complaint because it expresses the 

parties‟ intent.

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. . . 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,” and (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.” IMO Indus. v. Kiekert AG, 155 F.3d 254, 256 (3d. Cir. 

1998).

Applying the three part test set forth in IMO Indus., this Court concludes that 

Plaintiff has not established personal jurisdiction over Defendants with respect to his tort 

claim. Plaintiff has satisfied the first two parts of IMO Indus.‟s three part test because 

tortious interference with economic opportunity is an intentional tort, Printing MartMorristown v. Sharp Electronics Corp., 116 N.J. 739, 750 (1989), and Plaintiff suffered 

the brunt of the harm in New Jersey because he resides here. But, the Court finds that 

Plaintiff has not sufficiently shown that Defendants expressly aimed their tortious

conduct at New Jersey, such that New Jersey is “the focal point of the tortious activity.” 

IMO Indus., 155 F.3d at 256. The basis of Plaintiff‟s tort claim is that Defendants 

decision not to sell AcadiaSoft was done in bad faith to deprive Plaintiff of his “sweat 

equity.” (Compl. ¶¶ 36-41.) Taken as true, these allegations are insufficient to support 

the Court‟s exercise of personal jurisdiction over Defendants. A defendant‟s knowledge 

that a plaintiff resides in the forum state, without more, will not amount to “behavior 

intentionally targeted and focused” on the forum state. IMO Indus., 155 F.3d at 263 

(internal citations omitted). In a case similar to the one at bar, Esab Grp., Inc. v. 

Centricut, Inc., 126 F.3d 617 (4th Cir. 1997), which has been treated favorably by the 

Third Circuit, a corporation located in South Carolina initiated a lawsuit against a New 

Hampshire company. Id. at 621. The Plaintiff alleged that the defendant had participated 

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in a conspiracy to appropriate plaintiff‟s trade secrets and customer lists. Id. The 

Plaintiff claimed that the court had jurisdiction over the Defendant because the Defendant 

knew the acquisition of the Plaintiff‟s trade secrets could decrease the Plaintiff‟s sales. 

Id. at 625. The Fourth Circuit held that such knowledge could not be the sole basis for 

concluding that the Defendant expressly aimed its tortious conduct at the forum. Id. 

According to the Fourth Circuit, if the court were to hold that such knowledge alone 

would be sufficient, “[i]nstead of grounding jurisdiction on a defendant‟s decision to 

purposely avail[] itself of the privilege of conducting activities within the forum state or 

on a defendant‟s activities expressly aimed at the forum state, jurisdiction would depend 

on a plaintiff‟s decision about where to establish residence.” Id. at 625-26 (internal 

quotations and citations omitted). Similarly, Plaintiff rests his argument that he satisfies 

the third prong of IMO Indus. on Defendants‟ awareness of the consequences of their 

alleged tortious activity. For the reasons stated above, this is insufficient.

III. CONCLUSION

For the reasons set forth above, Defendants‟ Motion to Dismiss is GRANTED.

SO ORDERED.

s/ Susan D. Wigenton 

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

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

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