THE SKIVIEW CORPORATION v. RIPPLE RESORT MEDIA, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1825-06T11825-06T1

THE SKIVIEW CORPORATION,

Plaintiff-Appellant,

v.

RIPPLE RESORT MEDIA, INC.,

Defendant-Respondent.

______________________________________

 

Submitted August 14, 2007 - Decided August 22, 2007

Before Judges S.L. Reisner and Lyons.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. 4522-06.

Jeffrey L. Clutterbuck, attorney for appellant.

Breslin, Auty & Preziosi, attorneys for respondent (John J. Breslin, III, on the brief).

PER CURIAM

Plaintiff, The Skiview Corporation, appeals from an order entered October 20, 2006 dismissing its complaint for lack of in personam jurisdiction over defendant, Ripple Resort Media, Inc. Because we agree with the thoughtful and detailed written opinion issued by Judge Joseph S. Conte, we affirm.

The facts and procedural history in this matter are as follows. Plaintiff is a Delaware corporation authorized to do business in New Jersey with a principal place of business in Ridgewood, New Jersey. Plaintiff's business is the marketing and advertising of products at ski resorts, on ski poles, billboards, and other locations at ski resorts.

Defendant is an Indiana corporation with its principal offices in Aspen, Colorado. Defendant designs and fabricates advertising placards to be placed on safety bars of the ski lift chairs which display maps showing trail locations and advertising materials. In the fall of 2004, plaintiff's president reached out to defendant's president in Colorado to propose that plaintiff act as exclusive sales agent for advertisements on defendant's map holders. The parties had no prior relationship before this event. Thereafter, over the course of several months, plaintiff and defendant negotiated the terms of the sales agency agreement by telephone, e-mail, written correspondence and fax. At no time during the negotiations did any representatives of defendant travel to New Jersey. However, during the negotiations plaintiff's president twice traveled to Colorado.

On May 31, 2005 a sales agency agreement between the parties was concluded. The contract was sent by defendant or its counsel to plaintiff in New Jersey for signing. The contract designates plaintiff as defendant's exclusive agent to sell promotional space on defendant's maps. The exclusive right, however, does not restrict defendant's right to sell promotional space on its own. Further, plaintiff is not permitted the right to sell promotional space to certain designated companies or to any companies that in the future purchase promotional space directly from defendant. The agreement contains an obligation on plaintiff's part to purchase a minimum number of "promotional spaces" each year in accordance with a schedule. The agreement contains a choice of law provision requiring Colorado law be used to construe the agreement. Also, the contract makes it clear that the parties are independent contractors and that neither party by virtue of the contract shall have the right power or authority to act or create any obligation, express or implied, on behalf of the other party.

Following the execution of the agreement, plaintiff generated revenues for defendant which were in excess of $250,000. Sometime after the contract was in effect, the president of defendant came to visit ski areas in New England. At the conclusion of the trip, he stopped at the home of the president of plaintiff. The parties dispute the nature of the conversation during this visit, with plaintiff alleging that it was primarily business centered, while defendant maintains that the conversation was social in nature. Other than that one occasion, no representative of defendant was in New Jersey in connection with defendant's business.

The parties are in accord on a number of significant points. Defendant's products were not manufactured in New Jersey and defendant did not make any direct sales calls to New Jersey ski resorts. Defendant did not have any contacts with New Jersey businesses for the placement of advertising on its map holders. Defendant does not have any bank accounts, assets, office space, telephone listings, advertising or employees in New Jersey.

The parties' relationship began to deteriorate and on June 15, 2006, plaintiff filed a complaint against defendant in the Law Division alleging that defendant is in breach of its agreement with respect to payments that were to be made, that defendant failed to reveal to plaintiff certain resorts which had contracts with defendant and that defendant's termination of the agreement was wrongful. Prior to filing an answer defendant moved to dismiss the complaint for lack of jurisdiction. Oral argument was heard on the motion on October 20, 2006 at which time Judge Conte rendered an oral and written decision granting defendant's motion and entering an order dismissing the complaint. This appeal ensued.

On appeal plaintiff argues that New Jersey courts have specific jurisdiction over defendant in this case and that the trial court, therefore, committed error in dismissing the action for lack of in personam jurisdiction.

We begin our consideration of plaintiff's argument by reviewing applicable law.

A New Jersey court may exercise in personam jurisdiction over a non-resident defendant "consistent with due process of law." R. 4:4-4(b)(1). New Jersey's long-arm jurisdiction extends to the "outermost limits permitted by the United States Constitution." Avdel Corp. v. Mecure, 58 N.J. 264, 268 (1971). As our Supreme Court recently reiterated:

[T]he test for "due process requires only that in order to subject a defendant to a judgment in personam, if he [or she] be not present within the territory of the forum, he [or she] have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'"

[Blakey v. Continental Airlines, Inc., 164 N.J. 38, 66 (2000) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95, 102 (1945)(quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S. Ct. 339, 343, 85 L. Ed. 278, 283 (1940)).]

. . . Thus the issue before us is whether plaintiff's cause of action against these defendants arises out of a sufficient relationship between defendants and the State of New Jersey to invoke this court's specific jurisdiction, which requires that defendants have certain "minimum contacts" with the state. Waste Management, Inc. v. Admiral Ins. Co., 138 N.J. 106, 119 (1994) (citing Lebel, supra, 115 N.J. at 322; see also Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 1239-40, 2 L. Ed. 2d 1283, 1298 (1958). "In the context of specific jurisdiction, the minimum contacts inquiry must focus on 'the relationship among the defendant, the forum, and the litigation.'" Lebel, 115 N.J. at 323 (quoting Shaffer v. Heitner, 433 U.S. 186, 204, 97 S. Ct. 2569, 2579, 53 L. Ed. 2d 683, 698 (1977)).

Due process is satisfied "so long as the contacts resulted from the defendant's purposeful conduct and not the unilateral activities of the plaintiff." Lebel, 115 N.J. at 323 (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297-98, 100 S. Ct. 559, 567-68, 62 L. Ed. 2d 490, 501-02 (1980)). In determining whether the defendant's contacts are purposeful, a court must examine the defendant's "conduct and connection" with the forum state and determine whether the defendant should "reasonably anticipate being haled into court [in the forum state]." World-Wide Volkswagen, 444 U.S. at 297, 100 S. Ct. at 567, 62 L. Ed. 2d at 501. "[T]he existence of minimum contacts turns on the presence or absence of intentional acts of the defendant to avail itself of some benefit of a forum state." Waste Management, supra, 138 N.J. at 126. The minimum contacts of a defendant are evaluated on a case-by-case basis. Blakey, 164 N.J. at 66, citing Waste Management, 138 N.J. at 122.

Because "minimum contacts" requires that the contacts supporting jurisdiction result from the defendant's purposeful conduct and not the unilateral actions of the plaintiff, see World-Wide Volkswagen, 444 U.S. at 297-98, 100 S. Ct. at 567-68, 62 L. Ed. 2d at 501-02, New Jersey courts have found it significant to identify the initiator of the commercial contact. See Avdel, supra, 58 N.J. at 272-73; Elizabeth Iron Works v. Kevon Const. Corp., 155 N.J. Super 175, 179 (App.Div.1976); Resin Research Labs., Inc. v. Gemini Roller Corp., 105 N.J. Super. 401, 404 (App.Div.1969).

[Bayway Ref. v. State Util., 333 N.J. Super. 420, 428-430 (App. Div.), certif. denied, 165 N.J. 605 (2000).]

In addressing jurisdictional issues, which are matters of law, we consider the issue de novo. Mastondrea v. Occidental Hotels Mgmt., 391 N.J. Super. 261, 268 (App. Div. 2007).

In weighing the sufficiency of the contacts our Supreme Court has considered:

whether the cause of action arose out of the defendant's contacts within this State. If the two are related, the contacts support the exercise of jurisdiction . . . The more the defendant has purposefully directed its activities to the forum state, and the greater the benefits it has received from its contacts within the forum state, the more reasonable the exercise of jurisdiction becomes.

[Waste Mgmt., supra, 138 N.J. at 123.]

The Court further elaborated that, "the defendant must be aware that the transaction 'will have direct consequences in [the forum state] such that it should [be] aware of the possibility of litigation arising in that forum'". Id. at 124.

In this case, it is clear that plaintiff initiated the contractual relationship and that no prior relationship existed between the parties. It is also clear that there is no direct relationship between defendant and New Jersey. That is, there is no product to be produced in New Jersey, no assets held or business activities being conducted here by defendant. The only relationship between New Jersey and the contract at issue would appear to be that plaintiff's performance under the contract would be undertaken in some measure at plaintiff's home office which is located in New Jersey. However, this fact is not determinative. We have said that in analyzing cases such as this, there is a need for a "highly realistic approach" that examines not merely the contract itself, but prior negotiations and contemplated future consequences. See Creative Business v. Magnum, 267 N.J. Super. 560, 570-571 (App. Div. 1993). Given the nature of this transaction, there is nothing to indicate that plaintiff purposely attempted to avail itself of the benefits or protections of New Jersey law. The efforts by plaintiff to obtain customers who would purchase space on defendant's maps was a nationwide effort and could have been run out of any jurisdiction.

The situation presented in this case is markedly different than cases such as Elizabeth Iron Works, supra, 155 N.J. Super.

175, and Resin Research Lab., supra, 105 N.J. Super. 401. In those cases, the contracted product was manufactured or fabricated in New Jersey. It does not appear that the performance of this contract would have any significant effect in New Jersey. See Bayway Ref., supra, 333 N.J. Super. at 431. The mere existence of a commercial relationship between the parties cannot alone confer jurisdiction unless the foreign corporation entering into the relationship can reasonably have contemplated "significant activities or effects" in the forum state. Ibid.

We also note that the underlying cause of action in this case did not arise out of any contact with plaintiff in New Jersey. The underlying cause of action alleges a wrongful termination by defendant of a contract in Colorado, a failure by defendant in Colorado to turn over certain information to plaintiff and a supposed breach of the agreement by defendant in Colorado by appointing other agents. All of these allegations have no direct connection with New Jersey. See Waste Mgmt., supra, 138 N.J. at 123.

Plaintiff's argument that defendant's president's visit in 2005 evidences a significant intent on defendant's part to take advantage of the benefits or protections of New Jersey law is without merit. We find this contact to be too insignificant to confer jurisdiction or be determinative in our analysis.

In sum, and in accord with the findings and opinion of Judge Conte, we find that there were no significant purposeful contacts by defendant in New Jersey. Because we have found an absence of necessary minimal contacts, we need not review whether the exercise of personal jurisdiction over defendant would offend traditional notions of fair play and substantial justice. We therefore affirm substantially for the reasons set forth in Judge Conte's written opinion.

 
Affirm.

(continued)

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A-1825-06T1

August 22, 2007