PETER WADE AND SUSAN DEMPSEY WADE VS. JOSEPH DEMPSEY (L-1355-18, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limit ed. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3236-18T4

PETER WADE and SUSAN

DEMPSEY WADE,

Plaintiffs-Appellants,

v.

JOSEPH DEMPSEY,

Defendant-Respondent.

________________________

Argued January 23, 2020 – Decided June 19, 2020

Before Judges Suter and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law

Division, Monmouth County, Docket No. L-1355-18.

Jeffrey P. Mongiello argued the cause for appellants

(Connell Foley LLP, attorneys; Leo James Hurley, Jr.

and Jeffrey P. Mongiello, of counsel and on the briefs).

Leah Anne Brndjar argued the cause for respondent

(Goldberg Segalla LLP, attorneys; Leah Anne Brndjar

and Henry L. Miller, of counsel and on the brief).

PER CURIAM

Plaintiffs Peter Wade and Susan Dempsey Wade appeal from the February

15, 2019 order of the Law Division dismissing their complaint against defendant

Joseph Dempsey for want of personal jurisdiction. We affirm.

I.

We consider the following allegations to be true for purposes of this

appeal. Feinberg v. Dep't of Envt'l Prot., 137 N.J. 126, 129 (1994). Plaintiffs

are a married couple who reside in New Jersey. Defendant, the brother of

Dempsey Wade, resides in California. Kathleen Duffy Dempsey Magee, a

resident of Florida, is the mother of defendant and Dempsey Wade.

On April 17, 2017, defendant called Magee while she was at plaintiffs'

New Jersey home. During the call, defendant told Magee plaintiffs were

involved in a criminal conspiracy to defraud her and were planning to "lock her

up" against her will. There is no evidence in the record defendant has any other

connection to New Jersey.

Plaintiffs filed a complaint against defendant in the Law Division,

alleging defamation and defamation per se based on defendant's statements

during the call. Defendant moved to dismiss the complaint for lack of personal

jurisdiction.

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No party asked for discovery on the motion, and the court took no

testimony. When deciding the motion, the trial court assumed: (1) Magee did

not "just happen[] to be traveling through" New Jersey at the time of the call;

(2) defendant knew Magee was in New Jersey and at plaintiffs' home when he

initiated the call; and (3) defendant made the statements about plaintiffs with

malice. In an oral opinion, the court concluded that in the circumstances alleged,

defendant's single phone call to New Jersey did not constitute sufficient

minimum contacts to establish personal jurisdiction in our courts. In addition,

the court concluded defendant would not reasonably have anticipated being

haled into a New Jersey court based on one call with his mother while she was

in the State.1

A February 15, 2019 order memorializes the court's decision. This appeal

followed.

II.

Whether a court has personal jurisdiction over a defendant is a question

of law and we review the issue de novo. YA Glob. Invs., L.P. v. Cliff, 419 N.J.

1

Defendant also argued the complaint, if taken as true, does not state a cause

of action for defamation. Having dismissed the complaint on jurisdictional

grounds, the trial court did not address that issue.

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Super. 1, 8 (App. Div. 2011) (citing Mastondrea v. Occidental Hotels Mgmt.,

S.A., 391 N.J. Super. 261, 268 (App. Div. 2007)).

It has long been established that to satisfy the Due Process Clause a

nonresident defendant must have certain "minimum contacts" with the forum

state, "such that the maintenance of the suit does not offend 'traditional notions

of fair play and substantial justice.'" Int'l Shoe Co. v. Washington, 326 U.S.

310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). The

"primary focus of [the] personal jurisdiction inquiry is the defendant's

relationship to the forum State." Bristol-Myers Squibb Co. v. Super. Ct., ___

U.S. ___, 137 S. Ct. 1773, 1779 (2017).

The Supreme Court has "recognized two types of personal jurisdiction:

'general' (sometimes called 'all-purpose') jurisdiction and 'specific' (sometimes

called 'case-linked') jurisdiction." Id. at 1779-80. Plaintiffs concede New Jersey

does not have general jurisdiction over defendant.

For a state to exercise specific jurisdiction over a nonresident defendant,

the underlying lawsuit must "aris[e] out of or relate[] to the defendant's contacts

with the forum . . . ." Daimler AG v. Bauman, 571 U.S. 117, 127 (2014) (quoting

Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.8

(1984)). There must be "an affiliatio[n] between the forum and the underlying

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controversy, principally, [an] activity or an occurrence that takes place in the

forum State . . . ." Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S.

915, 919 (2011) (internal quotations omitted) (first alteration in original). The

minimum contacts inquiry must focus on "the relationship among the defendant,

the forum, and the litigation." Lebel v. Everglades Marina, Inc., 115 N.J. 317,

323 (1989) (quoting Shaffer v. Heitner, 433 U.S. 186, 204 (1977)).

Courts must also consider whether a nonresident defendant "purposefully

avail[ed] [him]self of the privilege of conducting activities within the forum

State," Hanson v. Denckla, 357 U.S. 235, 253 (1958), or "purposefully directed"

his conduct into the forum State. Asahi Metal Indus. Co. v. Super. Ct., 480 U.S.

102, 110 (1987). The need for "purposeful availment ensures that a defendant

will not be haled into a jurisdiction solely as a result of random, fortuitous, or

attenuated contacts." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475

(1985); see also World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297

(1980) (holding that the purposeful conduct necessary to establish minimum

contacts means a defendant "should reasonably anticipate being haled into court

there").

Finally, the exercise of jurisdiction must be reasonable under the

circumstances by comporting to notions of "fair play and substantial justice."

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Asahi Metal, 480 U.S. at 113; see also Burger King, 471 U.S. at 476-78. A

number of factors are relevant to the "fairness" analysis: "the burden on [the]

defendant, the interests of the forum state, the plaintiff's interest in obtaining

relief, the interstate judicial system's interest in efficient resolution of disputes,

and the shared interest of the states in furthering fundamental substantive social

policies." Blakey v. Cont'l Airlines, 164 N.J. 38, 69 (2000) (quoting Waste

Mgmt., Inc. v. Admiral Ins. Co., 138 N.J. 106, 125 (1994)).

New Jersey's long-arm statute allows our courts to exercise personal

jurisdiction over a non-resident defendant if it is consistent with due process of

law. R. 4:4-4. We exercise jurisdiction over nonresident defendants "to the

uttermost limits permitted by the United States Constitution." Avdel Corp. v.

Mecure, 58 N.J. 264, 268 (1971). Courts evaluate a defendant's contacts on a

case-by-case basis. Waste Mgmt., Inc., 138 N.J. at 122.

Once a plaintiff meets his or her burden in establishing "sufficient

minimum contacts . . . the burden shifts to the defendant to show that exercise

of jurisdiction would offend traditional notions of fair play and substantial

justice . . . ." Div. of Inv. ex rel. McCormac v. Qwest Commc'ns Int'l, Inc., 387

N.J. Super. 487, 499 (App. Div. 2006) (quotations omitted).

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Having carefully reviewed the record in light of the relevant precedents,

we agree with the trial court's conclusion defendant's single phone call to his

mother while she was in New Jersey was insufficient to establish specific

jurisdiction over him. We therefore affirm for the reasons stated in the trial

court's oral opinion. We add the following comments.

Our Supreme Court has twice held that the intentional communication of

information by a nonresident with knowledge or purpose that it will cause harm

in New Jersey is sufficient to establish minimum contacts supporting personal

jurisdiction. In Lebel, a New Jersey resident alleged a Florida company

defrauded him over the course of multiple phone calls to the State relating to the

sale of a boat. 115 N.J. at 320-21. The Court found sufficient minimum

contacts, reasoning that "[w]here a defendant knowingly sends into a state a

false statement, intending that it should then be relied upon to the injury of a

resident of that state, he has, for jurisdictional purposes, acted within that state."

Id. at 326 (quoting Vishay Intertechnology, Inc. v. Delta Int'l Corp., 696 F.2d

1062, 1066 (4th Cir. 1982)).

In Blakey, nonresident defendant airline employees made alleged

defamatory, retaliatory, and harassing statements about the plaintiff, who

commonly flew out of New Jersey, on an inner-company message board

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available for viewing in New Jersey. 164 N.J. at 47-53. The posts concerned

plaintiff's pending civil rights suit in a New Jersey court involving their

employer. Ibid. The Court held that "if defendants' statements [were] capable

of a defamatory meaning and were published with knowledge or purpose of

causing harm to plaintiff in pursuit of her civil rights within New Jersey , those

intentional contacts within the forum would satisfy the minimum contacts

requirement of International Shoe." Id. at 69.

We applied those precedents in McCormac, where the nonresident

defendants signed a series of false financial statements disseminated in this State

that induced our Department of Treasury to purchase and hold stock, the value

of which defendants overstated. 387 N.J. Super. at 494-98. Relying on the

holdings in Lebel and Blakey, we concluded that the false communications

constituted the "intentional communication of information with knowledge or

purpose that it will cause harm in this State" and were, therefore sufficient "to

establish the requisite minimum contacts" for specific jurisdiction. Id. at 499.

Applied literally, these precedents support the proposition that defendant's

intentional transmission of allegedly false information during his call to his

mother while she was in New Jersey was sufficient to establish personal

jurisdiction in our courts. The circumstances in which defendant made his

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statements, however, militate against a finding of specific jurisdiction.

Defendant's statements were made outside of a commercial context to a

nonresident temporarily present in the State, were not designed to interfere with

the exercise of a statutory right or suit pending in this State, and were, in effect,

interfamily communications. At best, defendant attempted to manipulate his

mother's relationship with his sibling and her spouse. We cannot find on this

record that defendant would reasonably have anticipated being haled into a New

Jersey court or that exercising jurisdiction over him would comport with

fundamental notions of fair play and substantial justice.

Affirmed.

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