UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY 

 

 :

KEVIN JOHN WITASICK, SR., and : Civil Action No.

WHITNEY S. WITASICK, h/w : 

:

Plaintiffs, : 11-3895-NLH-JS

:

v. :

: OPINION

CHARLES M. ESTES, et. al., :

:

Defendants. :

 : 

Appearances:

JERALD R. CURETON

CURETON CLARK, PC

3000 MIDLANTIC DRIVE

SUITE 200

MT. LAUREL, NJ 08054 

Attorney for plaintiffs

ARTHUR F. WHEELER 

MARSHALL DENNEHEY 

300 LAKE DRIVE EAST 

SUITE 300 

CHERRY HILL, NJ 08002

Attorney for defendants

HILLMAN, District Judge

This matter concerns a dispute regarding accounting

services provided to plaintiffs by defendants over several years. 

Defendants filed a motion to dismiss arguing that plaintiffs did

not comply with Federal Rule of Civil Procedure 4(m) by serving

the summons and complaint within 120 days from the date of filing

of the complaint, and that this Court cannot exercise personal

jurisdiction over the defendants because they do not have the

Case 1:11-cv-03895-NLH-JS Document 26 Filed 07/30/12 Page 1 of 21 PageID: 603
requisite “minimum contacts” with the State of New Jersey.

Plaintiffs have moved for an extension of time for service of the

summons and complaint as well as for jurisdictional discovery and

an evidentiary hearing. 

Plaintiffs’ motion for an extension of time to serve

the complaint will be granted, but its request for jurisdictional

discovery and an evidentiary hearing will be denied. Although

the Court agrees with defendants that the minimum contacts with

New Jersey do not exist and, therefore, this Court cannot

exercise personal jurisdiction over the defendants in this

matter, plaintiffs’ complaint will not be dismissed. Rather, the

case shall be transferred to the United States District Court for

the District of Arizona. 

I. BACKGROUND

Plaintiffs filed a complaint on July 6, 2011 alleging

that this Court could exercise subject matter jurisdiction on

grounds of complete diversity between the parties. On July 13,

2011, this Court determined sua sponte that the citizenship of

the parties was improperly plead and issued an order directing

plaintiffs to properly plead the citizenship of all the parties. 

On July 25, 2011, plaintiff filed an amended complaint pursuant

to the Court’s Order. No summons was requested or issued for the

amended complaint until November 17, 2011. The amended complaint

and summons were served on defendants on November 22, 2011, 139

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days after the filing of the initial complaint. Defendants seek

to dismiss plaintiffs’ amended complaint.

II. JURISDICTION

“[I]t is well established that the trial court has

inherent power and jurisdiction to decide whether it has

jurisdiction.” In re Automotive Refinishing Paint Antitrust

Litigation, 358 F.3d 288, 303 (3d Cir. 2004) (citing Ins. Corp.

of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S.

694, 102 S.Ct. 2099 (1982)).

The plaintiff states that this Court exercises subject

matter jurisdiction pursuant to 28 U.S.C. § 1332 (diversity). 

Plaintiffs are citizens of the State of New Jersey. Individual

defendants Charles M. Estes, Jane Doe Estes, Richard F. Avellone

and Jane Doe Avellone are citizens of the State of Arizona. 

Defendant Cleveland Estes Avellone, PLLC has one member,

defendant Charles M. Estes, who is a citizen of Arizona. 

Defendant Estes/Avellone CPA’s, Ltd., f/k/a Estes/Avellone, Ltd.,

is incorporated in Arizona with its principal place of business

in Arizona. Defendant Charles M. Estes, P.C. f/k/a Estes,

Mangel, & Company, P.C. is incorporated in Arizona with its

principal place of business in Arizona. Plaintiff alleges that

the amount in controversy exceeds $75,000.00, exclusive of

interest and costs.

Defendants allege that this Court does not have

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jurisdiction because the complaint was not timely served and, if

timely served, the Court cannot exercise personal jurisdiction. 

While the Court will extend the time for service of the

complaint, the minimum contacts needed to exercise personal

jurisdiction over the defendants does not exist and, therefore,

this matter will be transferred.

III. DISCUSSION

A. Standard for Dismissal Pursuant to Rule 12(b)(5)

(Insufficiency of Service of Process)

Since “[t]he failure of a plaintiff to obtain valid

process from the court to provide it with personal jurisdiction

over the defendant in a civil case is fatal to the plaintiff’s

case,” Ayres v. Jacobs & Crumplar, P.A., 99 F.3d 565, 569 (3d

Cir. 1996), it must first be determined whether the complaint was 

properly served. If the complaint was not properly served, the

action may be dismissed under Federal Rule of Civil Procedure

12(b)(5) for insufficient service of process. See Fed.R.Civ.P.

12(b)(5). 

Plaintiff, the party responsible for effecting service,

has the burden of proof to demonstrate validity of service. 

Grand Entm’t Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476,

488 (3d Cir. 1993). Fed.R.Civ.P. 4(m) provides the time frame a

plaintiff has to serve a defendant with the summons and copy of

the complaint. The rule provides:

If the service of the summons and complaint is not made

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upon a defendant within 120 days after the filing of

the complaint, the court, upon motion or on its own

initiative after notice to the plaintiff, shall dismiss

the action without prejudice as to that defendant or

direct that service be effected within a specified

time; provided that if the plaintiff shows good cause

for the failure, the court shall extend the time for

service for an appropriate period.

Fed.R.Civ.P. 4(m).

Before a court may dismiss a complaint for insufficient

service of process, the court must apply a two-step inquiry.

Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298, 1305 (3d

Cir. 1995). First, the court should determine whether good cause

exists for a time extension. Id. If a plaintiff demonstrates

good cause, the time to serve process must be extended. Id. In

the absence of good cause, however, “the court may in its

discretion decide whether to dismiss the case without prejudice

or extend time for service.” Id.; McCurdy v. Am. Bd. of Plastic

Surgery, 157 F.3d 191, 196 (3d Cir. 1998).

For purposes of Fed.R.Civ.P. 4(m), “good cause” has

been defined as tantamount to “excusable neglect,” under

Fed.R.Civ.P. 6(b)(1)(B), which requires “a demonstration of good

faith on the part of the party seeking an enlargement and some

reasonable basis for noncompliance within the time specified in

the rules.” MCI Telecomm. Corp. v. Teleconcepts, Inc., 71 F.3d 1

In MCI Telecomm. Corp., the rule is cited as 1

Fed.R.Civ.P. 6(b)(2). Id. at 1097. The rule permitting a court

to extend time for “excusable neglect” now appears under

subsection (b)(1)(B).

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1086, 1097 (3d Cir. 1995). Inadvertence and lack of diligent

counsel are insufficient to establish good cause for an extension

of time to serve process. Braxton v. United States, 817 F.2d

238, 241 (3d Cir. 1987). The finding of good cause generally

hinges upon a plaintiff’s reason for delay. Law v. Schonbraun

McCann Group, LLC, No. 08–2982, 2009 WL 3380321, *2 (D.N.J.

October 19, 2009). Therefore, a court should primarily focus on

the reasons Plaintiff did not initially comply with the time

limit. MCI Telecomm. Corp., 71 F.3d at 1097. The Third Circuit

opined that in determining good cause courts have considered such

factors as “(1) reasonableness of plaintiff’s efforts to serve

(2) prejudice to the defendant by lack of timely service and (3)

whether plaintiff moved for an enlargement of time to serve.”

Id.; Ackerman v. Beth Israel Cemetery Ass’n of Woodbridge, N.J.,

No. 09–1097, 2010 WL 2651299, *4 (D.N.J. June 25, 2010); see

Mason v. Therics, Inc., No. 08–2404, 2009 WL 44743, *2 (D.N.J.

January 6, 2009) (noting that solely an absence of prejudice

cannot constitute good cause to excuse late service).

Defendants state that plaintiffs filed their complaint

on July 6, 2011, but that the amended complaint was not served

until November 22, 2011, 139 days later. Plaintiffs do not

dispute that the “[f]iling of amended complaint does not extend

the 120–day time for service of process.” Finch v. George, 763

F.Supp. 967, 968 (N.D.Ill. 1991) aff’d, 991 F.2d 799 (7th Cir.

6

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1993); see Mopex, Inc. v. American Stock Exchange, LLC, No. 02-

1656, 2002 WL 342522, at *9 (S.D.N.Y. Mar. 5, 2002) (rejecting

assertion that 120-day time period began to run upon filing of

the first amended complaint and ruling that 120-day time period

began on date action removed to federal court). Plaintiffs,

however, argue that the corporate defendants were not properly

identified in the original complaint so that the amended

complaint named “new” defendants thereby restarting the 120-day

service period.

The amended complaint did not add any “new” defendants. 

Rather, the plaintiffs did not correctly plead the citizenship of

the parties prompting the Court to enter an order for plaintiffs

to properly plead diversity jurisdiction. In response to the

Court’s order, plaintiffs filed an amended complaint which also

corrected the corporate defendants’ names or type of entity. The

corporate defendants named in the amended complaint are the same

entities named in the original complaint. There is no 2

allegation that the wrong entity was sued in the original

The defendants named in the original complaint were: 2

(1) Charles M. Estes, (2) Jane Doe Estes, (4) Richard F. Avellone

(4) Jane Doe Avellone, (5) Charles M. Estes, CPA, (6) 

Estes/Avellone CPA’s; (7) Cleveland Estes Avellone CPA’s; and (8)

Black and White Accounting Partnerships and/or Corporations. 

The amended complaint named the following defendants: (1) Charles

M. Estes, (2) Jane Doe Estes, (4) Richard F. Avellone (4) Jane

Doe Avellone, (5) Cleveland Estes Avellone CPA PLLC, (6)

Estes/Avellone CPAs, Ltd., and (8) Charles M. Estes, P.C. f/k/a

Estes, Mangel & Company, P.C.

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complaint, only that the entity was not named correctly. Thus,

the 120-day service period did not start anew for the corporate

defendants upon the filing of the amended complaint.

Accordingly, all defendants were required to be served

within 120 days from the date the original complaint was filed. 

Plaintiffs argue that they had good cause for failing to serve

the defendants within the 120 day period because the Clerk of

Court did not issue a summons until November 17, 2011, and

because the parties were engaged in settlement negotiations. 

While a summons signed and sealed by the Clerk of Court

is an absolute requirement for proper service, Ayres, 99 F.3d at

569-70, there was no attempt by plaintiff to obtain a summons for

the amended complaint until November 17, 2011. In other words,

even if the summons was issued on the date the amended complaint

was filed, plaintiffs have not shown that service would have been

effected within the requisite time period. The summons for the

amended complaint was issued on the same day as requested by

plaintiffs. Plaintiffs did not file a request for summons prior

to November 17, 2011. Thus, the delay in service is not due to

the dilatoriness of the Clerk. 

Plaintiffs also argue that after the amended complaint

was filed, they reached out to a third party and mutual

acquaintance, attorney Paul Valentino, to discuss settlement with

the defendants. Plaintiffs provided Valentino with a copy of the

8

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amended complaint who stated that he would give a copy to

defendant Estes, and through, Estes, to the other defendants. 

Plaintiffs state that they learned through Valentino that he did

not give the defendants a copy of the amended complaint because

they already had a copy of it. Apparently, the defendants’

insurance carrier obtained a copy, which in turn filed a

declaratory judgment action in Arizona federal court against the

same defendants named in this action and attached plaintiffs’

amended complaint as an exhibit. Thus, the defendants, who were

all served with the declaratory action complaint, also had a copy

of the amended complaint which was attached as an exhibit.

Plaintiffs maintain that settlement discussions are

pending, but acknowledge that defendant Estes had expressed to

Valentino that there was a potential statute of limitations

defense. 

There is no dispute that proper service was made on

November 22, 2011 - 139 days from the date the original complaint

was filed. There is also no dispute that defendants had a copy

of the amended complaint and, therefore, no prejudice has been

shown by the untimely service of the complaint. “[A]bsence of

prejudice alone” however, “can never constitute good cause to

excuse late service.” MCI Telecomm. Corp., 71 F.3d at 1097

(finding that “while the prejudice may tip the ‘good cause’

scale, the primary focus is on the plaintiff’s reasons for not

9

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complying with the time limit in the first place.”). 

Although there is no dispute that the parties had

discussed settlement, plaintiffs have not presented a clear 3

reason why they were unable to properly serve the complaint and

summons during negotiations. See Delbane v. Manor, No. 11–1093,

2012 WL 1593146, at *1, 3 (W.D.Pa. May 7, 2012) (rejecting as

good cause excuse that delay in service resulted from counsel’s

efforts to settle the case which consisted of requesting and

receiving a settlement demand); cf. Gambino v. Village of

Oakbrook, 164 F.R.D. 271, 274 (M.D.Fla. 1995) (finding good cause

for delay where plaintiff sent copy of complaint to defendant’s

insurance adjuster who he believed was negotiating settlement in

good faith and who requested that plaintiff not serve defendant

during negotiations).

Thus, plaintiffs have not shown “good cause” for their

failure to properly serve defendants with the amended complaint

and summons pursuant to Rule 4(m). However, “[e]ven if a

plaintiff fails to show good cause, the [court] must still

consider whether any additional factors warrant a discretionary

extension of time.” Himmelreich v. United States, 285 Fed. App’x

Although defendants do not directly dispute that 3

settlement discussions occurred, they state that plaintiffs did

not attach an affidavit from Valentino attesting to any of the

conversations relied upon by plaintiffs. In response, plaintiffs

attached the declaration of Paul Valentino who attests that all

the statements made by the Witasicks in their declaration

attributable to him are true and correct.

10

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5,7 (3d Cir. 2008); see also Petrucelli, 46 F.3d at 1307 (“[T]he

district court must consider whether any other factors warrant

extending time even though good cause was not shown.”). Under

the Court’s discretionary analysis, the Court may “consider and

balance several factors including 1) actual notice of the action,

2) prejudice to the defendant, 3) statute of limitations, 4)

conduct of the defendant, 5) whether the plaintiff is represented

by counsel, and 6) any other relevant factor.” Jumpp v. Jerkins,

08–6268, 2010 WL 715678, at *7 (D.N.J. Mar. 1, 2010) (citing

Chiang v. U.S. Small Bus. Admin., 331 Fed. Appx. 113, 116 (3d

Cir. 2009)). 

Balancing the above factors, the Court finds that 

plaintiffs are represented by counsel and are attorneys

themselves. Plaintiffs also failed to request an enlargement of

time to serve the amended complaint. See Delbane v. Manor, No.

11–1093, 2012 WL 1593146, at *2 (W.D.Pa. May 7, 2012) (finding

plaintiff did not act diligently by not requesting an enlargement

of time until after the 120 day period had long expired). 

However, an important factor is whether there is a statute of

limitations issue if the case is dismissed for insufficient

service of process. See Boley v. Kaymark, 123 F.3d 756, 758-59

(3d Cir. 1997) (acknowledging that in drafting the amendment of

Rule 4(m), the Advisory Committee plainly had in mind authorizing

the court to relieve a plaintiff of the consequences of

11

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application of the statute of limitations even if no good cause

shown). 

Here, defendants indicated to Valentino that they

believe they have a valid statute of limitations defense. 

Plaintiffs have stated that if the amended complaint were

dismissed that defendants would be able to raise a statute of

limitations defense to some of the allegations due to the passage

of time since the filing of the complaint. In addition,

defendants had actual notice of the action and there is no

prejudice due to the untimely service. Although plaintiffs

served defendants 19 days beyond the deadline, the Court, in its

discretion, will enlarge the time for service to November 22,

2012. Thus, defendants’ motion to dismiss pursuant to Rule

12(b)(5) for insufficient service of process will be denied and

plaintiffs’ motion to extend the 120 day service requirement will

be granted. 

B. Standard for Dismissal Pursuant to Rule 12(b)(2)

(Lack of Personal Jurisdiction)

Having determined that the amended complaint and

summons were properly served, the issue is whether this Court can

exercise personal jurisdiction over the defendants. Due process

requires that in order for a Court to exercise personal

jurisdiction over a defendant, there must be “minimum contacts”

in the forum state so that the exercise of jurisdiction comports

with “traditional notions of fair play and substantial justice.” 

12

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Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). There

are two types of personal jurisdiction: general jurisdiction and

specific jurisdiction. See Marten v. Godwin, 499 F.3d 290, 296

(3d Cir. 2007). “General jurisdiction exists when a defendant

has maintained systematic and continuous contacts with the forum

state.” Id. (citing Helicopteros Nacionales de Colombia, S.A. v.

Hall, 466 U.S. 408, 414-15 & n. 8 (1984)). “Specific

jurisdiction exists when the claim arises from or relates to

conduct purposely directed at the forum state.” Id. (citing

Helicopteros,466 U.S. at 414-15 & n. 9).4

Plaintiffs do not distinguish between general or 4

specific jurisdiction. See Helicopteros, 466 U.S. at 414 n.8. 

As explained by the Supreme Court, “[a] court may assert general

jurisdiction over foreign (sister-state or foreign-country)

corporations to hear any and all claims against them when their

affiliations with the State are so ‘continuous and systematic’ as

to render them essentially at home in the forum State. Goodyear

Dunlop Tires Operations, S.A. v. Brown, 131 S.Ct. 2846, 2851

(2011) (citing International Shoe, 326 U.S., at 317, 66 S.Ct.

154). “Specific jurisdiction, on the other hand, depends on an

“affiliatio[n] between the forum and the underlying controversy,”

principally, activity or an occurrence that takes place in the

forum State and is therefore subject to the State’s regulation.” 

Id. (citations omitted). “In contrast to general, all-purpose

jurisdiction, specific jurisdiction is confined to adjudication

of ‘issues deriving from, or connected with, the very controversy

that establishes jurisdiction.’” Id. 

Plaintiffs do not appear to rely on general

jurisdiction. Plaintiffs do not allege facts that could

establish that defendants maintained “continuous and systematic”

contacts with New Jersey. Indeed, plaintiffs stated that the

fact that defendants are not licensed to practice in New Jersey

and do not maintain any offices here is “irrelevant” and rely

instead on defendants’ alleged contacts with the plaintiffs and

work related to the plaintiffs. Thus, plaintiffs seem to rely on

specific jurisdiction and, therefore must show that the

defendants purposefully directed activities toward the forum, and 

13

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After a motion to dismiss is filed pursuant to

Fed.R.Civ.P. 12(b)(2), the burden shifts to the plaintiff to

provide sufficient facts to establish jurisdiction. See IMO

Indus., Inc. v. Kiekert AG, 155 F.3d 254, 257 (3d Cir. 1998);

Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119, 1121

(W.D.Pa. 1997). The plaintiff must “... sustain its burden of

proof in establishing jurisdictional facts through sworn

affidavits or other competent evidence...” and cannot rely “on

the bare pleadings alone in order to withstand a defendant’s Rule

12(b)(2) motion to dismiss for lack of in personam jurisdiction.”

See Weber v. Jolly Hotels, 977 F.Supp. 327, 331 (D.N.J. 1997)

(citing Time Share Vacation Club v. Atlantic Resorts, Ltd., 735

F.2d 61, 67 n. 9 (3d Cir. 1984)). Further, “in deciding a motion

to dismiss for lack of jurisdiction, a court is required to

accept the plaintiff’s allegations as true, and is to construe

disputed facts in favor of the plaintiff.” Toys "R" Us, Inc. v.

Step Two, S.A., 318 F.3d 446, 457 (3d Cir. 2003) (citing Pinker

v. Roche Holdings Ltd., 292 F.3d 361, 368 (3d Cir. 2002)). A

Court must look beyond the pleadings in deciding a Rule 12(b)(2)

that their claims arise out of or relate to one of defendants’

specific acts. See, e.g., Kehm Oil Co. v. Texaco, Inc., 537 F.3d

290, 300 (3d Cir. 2008). If plaintiffs present evidence in

support of specific jurisdiction, then the court considers

whether additional factors ensure that jurisdiction comports with

traditional notions of fair play and substantial justice. Id. 

As explained infra, plaintiffs presented no facts that could show

that defendants purposefully directed their activities to New

Jersey. 

14

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motion. Id. 

Defendants argue that they do not have the minimum

contacts with the State of New Jersey to satisfy due process

requirements under the Fourteenth Amendment and, therefore, the

complaint should be dismissed for lack of personal jurisdiction. 

In support of their motion to dismiss, defendants submit the

declarations of defendants Estes and Avellone who state that they

are not licensed to perform accounting services in New Jersey and

state that they have never provided accounting services or

maintained a place of business in New Jersey. They also state

that the corporate defendants have never provided accounting

services or maintained a place of business in New Jersey. 

In response, plaintiffs submitted a declaration

detailing the history of their relationship with the defendants

from approximately 1986 until 2001. Although plaintiffs provide

sufficient detail in their declaration and amended complaint

regarding the accounting services provided by Estes, and later by

Avellone, there are no specific facts concerning defendants’

contacts with the State of New Jersey. Plaintiffs only generally

state that they “communicated and did business with the

defendants in the states of New Jersey, Arizona, New Hampshire,

and Virginia.” Plaintiffs also state that contrary to the Estes

and Avellone declarations, the defendants did sell and provide

accounting services to plaintiffs in New Jersey and intentionally

15

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targeted their electronic communications to plaintiffs in New

Jersey. 

Plaintiffs have not made a prima facie showing that

this Court can exercise personal jurisdiction over the

defendants. Because defendants have moved to dismiss pursuant 5

to Fed.R.Civ.P. 12(b)(2), plaintiffs have the burden to plead

facts that establish jurisdiction. See IMO Indus., 155 F.3d at

257; Zippo, 952 F.Supp. at 1121. All that plaintiffs have

provided are general statements that defendants conducted

business in New Jersey. They generally allege that they

“communicated and did business” with defendants in over four

States using the telephone, fax, mail, electronic mail and the

Internet, but make no distinction as to what activities were

directed to plaintiffs in New Jersey, when, and for how long. 

6

In cases, such as here, where the Court does not hold 5

an evidentiary hearing prior to a determination of the existence

of personal jurisdiction, the Court applies a prima facie

standard. LaSala v. Marfin Popular Bank Public Co., Ltd., 

410 Fed.Appx. 474, 476 (3d Cir. 2011) (citing O’Connor v. Sandy

Lane Hotel Co., 496 F.3d 312, 316 (3d Cir. 2007)). “Even if the

plaintiff meets this prima facie standard, however, the ultimate

burden remains on the plaintiff to demonstrate the existence of

jurisdiction by a preponderance of the evidence.” Id. (citing 

Carteret Sav. Bank. FA v. Shushan, 954 F.2d 141, 146 (3d Cir.

1992)).

Plaintiffs’ citations to Toys "R" Us, Inc. v. Step Two, 6

S.A., 318 F.3d 446 (3d Cir. 2003), and Zippo are not helpful

since those cases deal with a defendant’s interactive web site

which, in this case, plaintiffs have never alleged exists let

alone presented facts as to how defendants used their interactive

web site to target New Jersey or purposefully avail themselves of

the privilege of conducting activities within New Jersey.

16

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Based on the allegations in the amended complaint and

declaration, all of the events occurred while plaintiffs were

either living in Arizona, New Hampshire or Virginia. 

Specifically, the allegations concentrate on events that occurred

after plaintiffs purchased a multi-use property in Virginia. 

There are no facts concerning any events that occurred in New

Jersey. 

Presumably, by way of explanation concerning the

paucity of jurisdictional facts, plaintiffs state that they

suffered a devastating house fire in August 2007, at their New

Jersey home and as a result, the great majority of their personal

and business records were severely damaged or destroyed. In

order to uncover defendants’ documents, plaintiffs request that

the Court permit jurisdictional discovery. 

The Third Circuit has ruled that “courts are to assist

the plaintiff by allowing jurisdictional discovery unless the

plaintiff’s claim is ‘clearly frivolous.’” Toys "R" Us, 318 F.3d

at 456 (citing Massachusetts School of Law at Andover, Inc. v.

American Bar Ass’n, 107 F.3d 1026, 1042 (3d Cir. 1997)). “If a

plaintiff presents factual allegations that suggest ‘with

reasonable particularity’ the possible existence of the requisite

‘contacts between [the party] and the forum state,’ the

plaintiff’s right to conduct jurisdictional discovery should be

17

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sustained.” Id. (internal citation omitted). However,

jurisdictional discovery should not serve as “a fishing

expedition based only upon bare allegations, under the guise of

jurisdictional discovery.” LaSala v. Marfin Popular Bank Public

Co., Ltd., 410 Fed.Appx. 474, 478 (3d Cir. 2011). 

Plaintiffs’ jurisdictional claims are “clearly

frivolous.” All that plaintiffs have presented is that at some

undisclosed time period, defendants transacted business with

plaintiffs among four states, one of which was New Jersey. Such

allegations fall far short of the showing needed to grant

jurisdictional discovery. See Massachusetts School of Law at

Andover, Inc. v. American Bar Ass’n, 107 F.3d 1026, 1042 (3d Cir.

1997) (agreeing that “a mere unsupported allegation that the

defendant ‘transacts business’ in an area is ‘clearly

frivolous.’”) (citations omitted); Reading v. Sandals Resorts

Intern., Ltd., No. 06-3511, 2007 WL 952031, at *3-4 (D.N.J. Mar.

28, 2007) (denying jurisdictional discovery because claim was

“clearly frivolous” and finding only connection with New Jersey

to be plaintiff’s residence in New Jersey). Defendants have

submitted affidavits that they did not transact any business with

plaintiffs in New Jersey. Plaintiffs, who have the burden of

establishing jurisdiction, have not countered with any

jurisdictional facts. See Southern Seafood Co. v. Holt Cargo

Systems, Inc., No. 96–5217, 1997 WL 539763, at *8 (E.D.Pa. Aug.

18

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11, 1997) (denying jurisdictional discovery where defendants 

submitted affidavits attesting to a lack of jurisdictional

contacts and plaintiffs countered with affidavits of mere

speculation). Even if most of their business documents were

destroyed in a fire, plaintiffs should have some knowledge of

when and how they conducted business with the defendants

specifically in the State of New Jersey. Plaintiffs’ statements

are conclusory and speculative. They have presented no factual

allegations that suggest with reasonable particularity the

possible existence of the requisite contacts between defendants 

and the forum state. Thus, plaintiffs have provided no basis

upon which it could be inferred that defendants would have

documents to support their allegation that they transacted

business in New Jersey. Therefore, plaintiffs’ request for

jurisdictional discovery and an evidentiary hearing will be

denied. 

Given that this Court cannot exercise personal

jurisdiction over the defendants in this matter, the issue

becomes whether to dismiss or transfer the case. Although the

defendants filed a motion to dismiss, defendants have conceded

that if the Court is not inclined to dismiss the case, that venue

is proper in Arizona. Plaintiffs also request that this case be

transferred to Arizona in lieu of dismissal.

“[W]here the original venue is improper,” 28 U.S.C. §

19

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1406(a) provides for transfer or dismissal of a case. Jumara v. 7

State Farm Ins. Co., 55 F.3d 873, 878 (3d Cir. 1995). “Dismissal

is considered to be a harsh remedy ... and transfer of venue to

another district court in which the action could originally have

been brought, is the preferred remedy.” NCR Credit Corp. v. Ye

Seekers Horizon, 17 F.Supp.2d 317, 319 (D.N.J. 1998) (citing

Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466, 82 S.Ct. 913, 8

L.Ed.2d 39 (1962)).

In this matter, the Court concludes that dismissal of

the case would be a harsh remedy given that a statute of

limitations issue will arise. Given this action could have been

originally brought in Arizona where the defendants are citizens,

and given that all parties have consented to having this matter

transferred to Arizona, the Court will transfer this case to the

United States District Court for the District of Arizona.

IV. CONCLUSION

Plaintiffs’ motion for an extension of time to serve

the complaint will be granted, but its request for jurisdictional

discovery and an evidentiary hearing will be denied. Defendants’

Section 1404(a) states: 7

For the convenience of parties and witnesses, in the

interest of justice, a district court may transfer any

civil action to any other district or division where it

might have been brought or to any district or division

to which all parties have consented.

28 U.S.C. § 1406(a) .

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motion to dismiss will be granted in part and denied in part. 

The Clerk of Court will be directed to transfer this matter to

the United States District Court for the District of Arizona. 

An Order will be entered consistent with this Opinion. 

 s/Noel L. Hillman 

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

Date: July 30, 2012 

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