Miller Yacht Sales, Inc. v. Steven Sm Ith, individually

PRECEDENTIAL
THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
___________
No. 02-3304
___________
MILLER YACHT SALES, INC.,
Appellant
v.
STEVEN SM ITH, individually;
MARINER YACHT SALES, INC.;
IVAN BOGACHOFF, individually;
ISLAND YACHT BROKERS;
ABC CORPORATIONS 1-10,
names being fictitious;
JOHN DOES, (1-10),
names being fictitious
___________
APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
DISTRICT OF NEW JERSEY
(D.C. No. 02-cv-00402)
District Judge: The Honorable Anne E.
Thompson
___________
ARGUED OCTOBER 28, 2003
BEFORE: SCIRICA, Chief Judge,
NYGAARD, and AMBRO,
Circuit Judges.
(Filed September 20, 2004)
___________
Chryssa Yaccarino, Esq. (Argued)
Villani & DeLuca
703 Richmond Avenue
Point Pleasant Beach, NJ 08742
Counsel for Appellant
Ivan Bogachoff, Esq. (Argued)
Bogachoff & Associates
4500 New Hampshire Avenue, NW
Suite B
Washington, DC 20011
Counsel for Appellees
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
The District Court dismissed Miller
Yacht Sales’ suit for trade-dress
infringement, statutory and common law
unf air com p e tition, and tortious
interference with prospective economic
advantage, because it concluded that it
lacked personal ju risdictio n over
Appellees. Because we conclude that
Appellees have sufficient contacts with
New Jersey, we will reverse.
I.
To defeat Appellee’s motion to dismiss
for lack of personal jurisdiction, Miller
Yacht was required to present a prima
facie case that jurisdiction existed. Mellon
Bank (East) PSFS Nat’l Ass’n v. Farino,
960 F.2d 1217, 1223 (3d Cir. 1992).
Miller Yacht is a New Jersey corporation
with its principal offices in South Toms
River, New Jersey. Miller Yacht designs,

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manufactures, markets and sells boats.
Specific to this action, Miller Yacht has
designed, manufactured, marketed and
sold 34' and 38' Marine Trader Double
Cabin and Sedan Yachts.
Appellees also sell and market boats,
but are not New Jersey residents or
corporations. Beginning in 1998, Miller
Yacht and Appellees began negotiating a
deal that was intended to allow the
Appellees to become exclusive marketing
representatives and dealers for some of
Miller Yacht’s boats, including the Marine
T r a d e r Y a c hts.1 D u r i n g t h e se
1.Appellees stress their argument that
they were each acting in their individual
corporate or personal capacities and that
their contacts with New Jersey should be
analyzed separately. While they are
correct that, in general, a court must
analyze questions of personal jurisdiction
on a defendant-specific and claim-
specific basis, Calder v. Jones,
Appellees’ reliance on this general rule
ignores substantial portions of Miller
Yacht’s allegations and the evidence
submitted to support those allegations.
465 U.S. 783, 790 (1984). Miller Yacht
alleges that Steven Smith and Ivan
Bogachoff were acting as partners while
they negotiated with Miller Yacht. In its
complaint, Miller Yacht alleges,
“Defendant Ivan Bogachoff . . . was a
partner with Steven Smith and at all
relevant times hereto and, upon
information and belief, had express,
implied, and/or apparent authority to
(continued...)
1.(...continued)
engage in transactions on behalf of
Steven Smith and himself, individually,
for the purpose of entering into a
business agreement wherein Bogachoff
would become a broker dealer, along
with his partner, of Marine Trader
yachts.” Appellant’s App. at 13
(emphasis added). This allegation is
supported by Donald Miller’s affidavit in
which he states that Smith and
Bogachoff acted together during relevant
negotiations and that on a particular
occasion in February, 2000 “[Miller]
personally saw Defendants Smith and
Bogachoff working in a [boat show]
booth soliciting New Jersey Customers.
There, [Miller] was introduced to
Defendant Bogachoff as the partner of
Defendant Smith.” Appellant’s App. at
48.
Miller Yacht has alleged that
Bogachoff and Smith were partners and
that they were each also representing one
of the appellee companies and has
supported these allegations with a sworn
affidavit. We view these allegations and
their supporting evidence in a light most
favorable to Miller Yacht and, therefore,
infer a partnership between Bogachoff
and Smith. See Pinker v. Roche
Holdings LTD, 292 F.3d 361, 368 (3d
Cir. 2002) (holding that in ruling on a
Rule 12(b)(2) motion we must accept all
of the plaintiff’s allegations as true and
construct disputed facts in favor of the
plaintiff.) We disagree with Appellees
(continued...)

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negotiations, Appellees made phone calls
from their offices outside New Jersey to
Miller Yacht’s offices in New Jersey.
Additionally, Ap pellees transm itted
facsimiles into New Jersey, including
proposed licensing agreements for the
trade names relevant to the negotiations.
Appellees also traveled to Miller Yacht’s
offices in New Jersey. During one of these
trips, Donald Miller, the president of
Miller Yacht, provided Steven Smith with
a copy of M iller Yacht’s sales brochure.
That brochure included photographs and
floor plans of the Marine Trader Yachts.
Miller Yacht also alleges that it arranged
and paid for Smith to travel to China to
observe the manufacturing process for the
Marine Trader Yachts and meet Miller
Yacht’s business contacts relevant to those
yachts. Miller Yacht claims that Appellees
sent facsimile transmissions to Donald
Miller as part of the planning activities for
Smith’s trip to China.
Eventually, the negotiations between
the parties reached a standstill and they
failed to reach an agreement. Miller Yacht
alleges that Appellees misappropriated the
photographs and floor plans contained in
Miller Yacht’s sales brochure, as well as
other intellectual property owned by Miller
Yacht, and used it to produce and market
boats that are identical to the Marine
Trader Yachts. It further alleges that
Appellees engaged M iller Yacht’s
business contacts in China to manufacture
the boats, and thereby interfered with
Miller Yacht’s business relationship with
those contacts.
Based on these allegations, M iller
Yacht sued Appellees for trade-dress
infringement, statutory and common law
unf air com p e tition, and tortious
interference with prospective economic
advantage. Appellees moved to dismiss
Miller Yacht’s complaint based on lack of
personal jurisdiction and improper venue.
The District Court, without holding an
evidentiary hearing, granted Appellees’
motions to dismiss for lack of personal
jurisdiction. This appeal followed.
II.
The District Court had subject matter
jurisdiction over this action under 28
U.S.C. §§ 1331, 1332 and 1367. We have
appellate jurisdiction over the District
Court’s final order under 28 U.S.C. § 1291
and review the District Court’s decision de
novo. Pinker, 292 F.3d at 368.
A federal court sitting in New Jersey
has jurisdiction over parties to the extent
provided under New Jersey state law. See
Fed. R. Civ. P. 4(e); see also Carteret, 954
F.2d at 144. New Jersey’s long-arm
1.(...continued)
that these allegations and affidavits fall
short of alleging a relationship between
the parties from which we must attribute
the contact of any one individual
Appellee to all of the Appellees.
Carteret Sav. Bank, F.A. v. Shushan, 954
F.2d 141, 145 n.6 (3d Cir. 1992)
(observing that “[a] partnership and each
partner is held liable for the act of every
other partner, executed in the usual way
of carrying on the business of the
partnership”).

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4
statute provides for jurisdiction co-
extensive with the due process
requirements of the United States
Constitution. N.J. Court Rule 4:4-4(c); see
Charles Gendler & Co. v. Telecom Equip.
Corp., 508 A.2d 1127, 1131 (N.J. 1986).
Thus, parties who have constitutionally
sufficient “minimum contacts” with New
Jersey are subject to suit there. See
Carteret, 954 F.2d at 149.
Miller Yacht claims that the District
Court had specific jurisdiction over
Appellees based on their contacts with
New Jersey.2 Miller Yacht concedes that
Appellees do not have the “consistent and
systematic” contacts with New Jersey that
would subject them to general jurisdiction
in that forum. See Pinker, 292 F.3d at 368
n.1.
In analyzing Miller Yacht’s specific
jurisdiction argument, we must “examine
the relationship among the [Appellees], the
forum, and the litigation.” Id. at 368.
Specific jurisdiction over a defendant
exists w hen tha t defe ndan t has
“purposefully directed his activities at
residents of the forum and the litigation
results from alleged injuries that arise out
of or relate to those activities.” Burger
King Corp. v. Rudzewicz, 471 U.S. 462,
472 (1985) (internal quotations and
citation omitted). A single contact that
creates a substantial connection with the
forum can be sufficient to support the
exercise of personal jurisdiction over a
defendant. Id. at 475 n.18.
If these “purposeful availment” and
“relationship” requirements are met, a
court may exercise personal jurisdiction
over a defendant so long as the exercise of
that jurisdiction “comport[s] with fair play
and substantial justice.” Id. at 476
(internal quotations and citations omitted).
To defeat jurisdiction based on this
fairness inquiry, a defendant must “present
a compelling case that the presence of
some other considerations would render
jurisdiction unreasonable.” Id. at 477.
The Supreme Court has indicated that
lower courts addressing the fairness
question may consider “the burden on the
defendant, the forum State’s interest in
adjudicating the dispute, the plaintiff’s
interest in obtaining the most efficient
resolution of controversies, and the shared
interest of the several States in furthering
fundamental substantive social policies.”
Id. (internal quotations omitted).
To survive a motion to dismiss for lack
of personal jurisdiction, a plaintiff bears
the burden of establishing the court’s
2.Miller Yacht also alleges Appellees
were subject to personal jurisdiction
under the “effects test.” See Calder, 465
U.S. at 789. Under that test, a party is
subject to personal jurisdiction in a state
when his or her tortious actions were
intentionally directed at that state and
those actions caused harm in that state.
Because we find that Appellees have
sufficient contacts with New Jersey
under the more traditional personal
jurisdiction analysis, we need not reach
the question of whether the appellees
would also be subject to jurisdiction
under the effects test.

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5
jurisdiction over the moving defendants.
Pinker, 292 F.3d at 368. However, when
the court does not hold an evidentiary
hearing on the motion to dismiss, the
plaintiff need only establish a prima facie
case of personal jurisdiction and the
plaintiff is entitled to have its allegations
taken as true and all factual disputes drawn
in its favor. Id.; see also Carteret, 954
F.2d at 142 n.1.
The District Court did not hold an
evidentiary hearing but did determine,
based on the parties’ submissions and
arguments, that Miller Yacht failed to
satisfy its burden because the contacts it
presented did not show that Appellees
purposefully availed themselves of New
Jersey’s laws. We disagree based on three
important contacts and the context of those
contacts.
III.
A.
Trade-dress Infringement and Unfair
Competition Claims
First, Miller Yacht alleges that
Appellees made trips to New Jersey as part
of their negotiations. Miller Yacht claims
that during one of these trips Smith came
to New Jersey and received Miller Yacht’s
sales brochure. The receipt of this sales
brochure was Appellees’ first step toward
the misappropriation of Miller Yacht’s
trade-dress, photos and floor plans. This
misappropriation is not only related, but is
essential, to Miller Yacht’s unfair
competition and trade-dress infringement
claims. Thus, Appellees came to New
Jersey allegedly to receive the property
that they eventually misappropriated and
used to injure Miller Yacht.
Second, Miller Yacht alleges Appellees
placed the misappropriated photos and
floor plans in advertisements in boating
magazines circulated in New Jersey and in
at least one brochure that was sent directly
to a potential customer in New Jersey.
Intentionally and directly transmitting the
misappropriated property that Appellees
initially obtained in New Jersey back into
New Jersey is a very strong contact
between them and the State. It is also a
second essential element of Miller Yacht’s
infringement and unfair competition
claims.3
Miller Yacht also alleges that, at least
before Appellees misappropriated its
intellectual property, Appellees were
3.There is no question that this contact is
sufficient to subject Island Yacht Brokers
and Mariner Yacht Sales to jurisdiction
in New Jersey. We attribute this contact
to Appellees because Miller Yacht
specifically alleged that Steven Smith
was the individual responsible for Island
Yacht Brokers’ “‘[advertising and
brochure producing] efforts and
activities’” Appellants’ App. at 41
(quoting affidavit of Steven Smith)
(brackets in original). As described in
footnote 1, Miller Yacht has also alleged
that Smith and Bogachoff were acting as
partners during all relevant periods. We
accept these allegations as true and,
therefore, attribute this contact to all
Appellees.

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6
directly engaged in the marketing of boats
in New Jersey. They attended trade shows
in New Jersey and adjoining states and
advertised in regional boating magazines
that were distributed in New Jersey. These
pre-misappropriation contacts and the
continued advertisements in New Jersey
provide a nexus between Appellees and
New Jersey, and logically explain why at
least one New Jersey resident would
request Appellees’ sales brochure. While
we do not base our holding on these pre-
misappropriation contacts (they are not
among the three contacts on which we
rely), they are relevant to show that the
request for sales material that Appellees
received from a New Jersey resident was
not a random or fortuitous occurrence
upon which jurisdiction may not properly
lie. See World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 295-99 (1980)
(holding that one fortuitous act connecting
a defendant with a state with which it has
no other ties is not sufficient to support the
exercise of personal jurisdiction over that
defendant in that state).
The contacts alleged by Miller Yacht
are sufficient to satisfy the “purposeful
availment” and “relatedness” requirements
of due process with respect to Miller
Yacht’s trade-dress infringement and
unfair competition claims.
B.
Tortious Interference Claim
Miller Yacht also alleges that
Appellees had substantial and repeated
contact with New Jersey during the
negotiations between the parties.
Although these negotiations are only
indirectly related to Miller Yacht’s trade-
dress infringement and unfair competition
claims, they are directly related to its
tortious interference claim and are the
third contact upon which we rely. Miller
Yacht specifically alleges that Appellees
sent facsimile transmissions into New
Jersey in order to arrange for Smith to
travel to China to visit the Chinese
companies that manufactured the Marine
Trader Yachts for Miller Yacht. Miller
Yacht further alleges that, subsequent to
this trip, Appellees unlawfully engaged
these Chinese companies to produce
“strikingly similar yachts . . . according to
the interior and exterior plans and
specifications owned by [Miller Yacht],
using the molds used to construct said
yachts.” Appellant’s App. at 28. Miller
Yacht alleges that Appellees’ engagement
of these companies to produce the
“strikingly similar” yachts interfered with
Miller Yacht’s prospective economic
advantage flowing from its own
relationship with these companies.
We conclude that Appellees’ contacts
with New Jersey in setting up their trip to
China, coupled with the contacts we found
sufficient to support the exercise of
personal jurisdiction over Appellees on
Miller Yacht’s other claims, are sufficient
to support the exercise of jurisdiction on
the tortious interference with prospective
economic advantage claim as well.
We disagree with the argument that
these contacts do not support jurisdiction
over this claim. First, we do not agree that
we must apply an immediate or proximate

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7
cause standard to determine whether a
claim arises out of a defendant’s contacts
with a forum state and we do not read
Pinker, Vetrotex Certainteed Corp. v.
Consolidated Fiber Glass Products Co.,
75 F.3d 147 (3d Cir. 1996), or Remick v.
Manfredy, 238 F.3d 248, 255-56 (3d Cir.
2001), as standing for such a proposition.
In Pinker, we had to determine whether a
foreign issuer and sponsor of American
Depositary Receipts (“ADRs”) was subject
to personal jurisdiction in this country on
claims that it misrepresented material facts
relevant to those ADRs.4 We concluded
that because the foreign issuer
“sponsor[ed] an ADR facility [in America,
it] purposely availed itself of the privilege
of conducting activities in the American
securities market, and thereby established
the requisite minimum contacts with the
United States.” Pinker, 292 F.3d at 371
(internal quotation omitted). Importantly,
we did not apply a proximate cause test to
determine personal jurisdiction. Instead,
based solely on th e def enda nt’s
sponsorship of the ADR facility at issue,
an action that was certainly not the
proximate cause of the fraudulent
misrepresentation, we found that the
defendant had the requisite minimum
contacts to establish jurisdiction with
regard to the plaintiff’s claims. Id.
Vetrotex involved contract claims and
“there are different considerations in
analyzing jurisdiction over contract claims
and over certain tort claims.” Remick, 238
F.3d at 255-56. Further, in contract claims
w e analyze the totality of th e
circumstances surrounding a contract to
determine whether the exercise of
jurisdiction over the defendant is proper.
Id. at 256. We do not consider this
totality of the circumstances test to be the
equivalent of a requirement that the
defendants’ contacts with the forum be the
proximate cause of the plaintiff’s claims.
Remick also does not support a
proximate cause standard. Remick was a
breach of contract case, but involved
various tort claims as well. Id. at 256.
With respect to those tort claims, we
applied the effects test to determine if the
defendant was subject to jurisdiction in
Pennsylvania. Id. at 258. Similarly, in
IMO Industries, Inc. v. Kiekert AG, we
applied the effects test to analyze whether
the defendant was subject to jurisdiction in
New Jersey on the plaintiff’s intentional
tort claims. 155 F.3d 254, 265-66 (3d Cir.
1998). The focus on the effects test in
both these cases convinces us that their
requirement that the tortious actions of the
defendant have a forum-directed purpose
is not applicable in the more traditional
specific jurisdiction analysis. As pointed
out in Note 2 supra, the effects test
expressly requires that “the defendant
expressly aimed its tortious conduct at the
forum, and thereby made the forum the
4.In Pinker, the Court was confronted
with a statute that authorized nationwide
service of process and, therefore, needed
to determine if the defendant had
sufficient contacts with the United States
to support jurisdiction. Pinker, 292 F.2d
at 369.

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8
focal point of the tortious activity.” Id. at
265. This requirement is reasonable
within the effects test because it insures
that the defendant, who may not have any
actual contact with the forum state, have
sufficiently directed his tortious conduct at
the state to render him subject to personal
jurisdiction there. See id. at 265. Unlike
this express requirement in the effects test,
the traditional specific jurisdiction analysis
simply requires that the plaintiff’s claims
“arise out of or relate to” the defendant’s
forum contacts. Burger King, 471 U.S. at
472 (internal quotations omitted). We do
not agree with the argument that this
traditional requirement is the equivalent of
the more demanding relatedness
requirement of the effects test.
We recognize that our conclusion that
a defendant’s contacts with a forum need
not have been the proximate cause of the
plaintiff’s injuries in a tort case begs the
question of what level of relationship is
necessary under the “arise out of or relate
to” requirement. We need not address this
question that has plagued federal Courts of
Appeals and has resulted in divergent
rules. We have not laid down a specific
rule because we have approached each
case individually and taken a “realistic
approach” to analyzing a defendant’s
contacts with a forum. Mellon Bank (East)
PSFS, Nat’l Ass’n v. Farino, 960 F.2d
1217, 1223 (3d Cir. 1992)(internal
quotation omitted); see also Pennzoil
Prods. Co. v. Colelli & Assocs. Inc., 149
F .3d 197 , 203 (3d Cir. 1998)
(acknowledging the dif ficu lty o f
formulating bright-line rules in the
personal jurisdictio n analysis and
indicating the fact-sensitive nature of that
analysis).
This is the approach we take here, and
conclude that Appellees’ contacts with
New Jersey are sufficient to subject them
to jurisdiction on Miller Yacht’s tortious
interference claim. First, Miller Yacht
a l l e g e s t h a t A p p e l l e e s s e n t
communications into New Jersey in order
to set up their trip to China. We have been
clear that such communications may be
factored into the minimum contacts
analysis. Grand Entm’t Group, Ltd. v.
Star Media Sales, Inc., 988 F.2d 476, 482-
83 (3d Cir. 1993). Second, we cannot
ignore the fact that Miller Yacht alleges
Appellees’ tortious interference resulted
from their en gagin g the C hinese
companies to build the very boats that
Miller Yacht alleges Appellees are using
misappropriated photos and floor plans to
advertise. As described above, those
photos and floor plans were obtained in
New Jersey and were sent back into New
Jersey, after having been misappropriated,
as part of Appellees’ sales efforts. It is
only in selling the boats that Miller Yacht
or Appellees could expect to get any kind
of economic advantage from the building
agreement with the Chinese companies.
Thus, these sales efforts, and their New
Jersey-related activities, are vital parts of
Miller Yacht’s tortious interference claims.
The sum of these contacts is sufficient to
subject Appellees to personal jurisdiction
in New Jersey on M iller Yacht’s tortious
interference claim.

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9
III.
We easily conclude that jurisdiction
over Appellees is consistent with
traditional notions of fair play and
substantial justice. There is no compelling
evidence of record why it would be unfair
or unjust for Appellees to litigate this
dispute in New Jersey. Without such
compelling evidence, they cannot avoid
t h e Distr ict Court’s ap p r o p r ia te
jurisdiction.
For these reasons, we will reverse the
District Court’s order dismissing Miller
Yacht’s complaint and remand the case to
the District Court.
SCIRICA, Chief Judge, concurring in part,
dissenting in part.
I write separately because I would find
specific jurisdiction only as to Miller
Yacht’s unfair competition and trade dress
infringement claims against appellees
Island Yacht and Mariner Yacht.
Nevertheless, because appellant’s claims
sound in tort, I would remand for the
District Court to consider appellees’ forum
contacts under the “effects test.” See IMO
Indus., Inc. v. Kiekert AG, 155 F.3d 254,
265-66 (3d Cir. 1998).
I.
Personal jurisdiction over a non-
resident defendant may be asserted under
general or specific theories of jurisdiction.
See Helicopteros Nacionales de Colombia,
S.A. v. Hall, 466 U.S. 408, 414 & n.9
(1984). Because there are no allegations
that appellees’ contacts with the forum are
so “continuous and systematic” as to give
rise to general jurisdiction, our inquiry is
limited to specific jurisdiction. Specific
jurisdiction permits the exercise of
personal jurisdiction over non-resident
defendant only if the plaintiff’s claims
“arise out of or relate to” the defendant’s
forum contacts. Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 472 (1985).
Consequently, the specific jurisdiction
determination is both claim-specific, see
Remick v. Manfredy, 238 F.3d 248, 255-56
(3d Cir. 2001) (analyzing specific
jurisdiction over tort and contract claims
separately); Gehling v. St. George’s Sch. of
Med., Ltd., 773 F.2d 539, 543-44 (3d Cir.
1985) (finding personal jurisdiction over
f r a u d u l en t m i s r e p re s e n t a ti o n a nd
emotional distress claims, but not
negligence and breach of contract claims),
and defendant-specific, see Rusk v.
Savchuk, 444 U.S. 320, 332 (1980) (“The
requirements of International Shoe . . .
must be met as to each defendant.”).5
5.Due process requires that non-resident
defendants have “minimum contacts”
with the forum such that the exercise of
personal jurisdiction does not offend
“traditional notions of fair play and
substantial justice.” International Shoe
Co. v. Washington, 326 U.S. 310, 316
(1945) (citing Milliken v. Meyer, 311
U.S. 457, 463 (1940)). The defendant’s
contacts with the forum state must have a
basis in some act by which the defendant
(continued...)

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10
II.
While acknowledging the claim- and
defendant-specific nature of the specific
jurisdiction inquiry, the majority concludes
the allegations in the complaint require us
to attribute the forum contacts of “any one
individual Appellee to all of the
Appellees.” The majority reaches this
conclusion by inferring the existence of a
“partnership” based upon Miller Yacht’s
allegations that Smith and Bogachoff
“act[ed] as partners” in their negotiations
with Miller Yacht, in which they
represented Island Yacht and Mariner
Yacht, respectively. Although we accept
all allegations in the complaint as true and
construe all disputed facts in favor of the
plaintiff on a motion to dismiss under Fed.
R. Civ. Pro. 12(b)(2), I do not believe it is
reasonable to infer the appellees engaged
in a “partnership.”6
There is no averment in the complaint
or in the supporting affidavits that
appellees—two non-resident persons and
t w o out-of-state corpora tions—ar e
collectively organized as a partnership. As
I read the complaint, the allegation that
Smith and Bogachoff “act[ed] as partners”
5.(...continued)
“purposefully avails itself of the
privilege of conducting activities within
the forum State, thus invoking the
benefits and protections of its laws.”
Hansen v. Denckla, 357 U.S. 235, 253
(1958). The “minimum contacts”
analysis assesses the “relationship among
the defendant, the forum, and the
litigation.” Shaffer v. Heitner, 433 U.S.
186, 204 (1977).
6.In acknowledging the procedural
distinctions between a Rule 12(b)(6)
motion and a Rule 12(b)(2) motion, we
have explained:
(continued...)
6.(...continued)
A Rule 12(b)(2) motion . . .
is inherently a matter
which requires resolution
of factual issues outside the
pleadings, i.e. whether in
personam jurisdiction
actually lies. Once the
defense has been raised,
then the plaintiff must
sustain its burden of proof
in establishing
jurisdictional facts through
sworn affidavits or other
competent evidence. . . .
[A]t no point may a
plaintiff 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.
Once the motion is made,
plaintiff must respond with
actual proofs, not mere
allegations.
Patterson v. FBI, 893 F.2d 595, 603-604
(3d Cir. 1990) (citing Time Share
Vacation Club v. Atlantic Resorts, Ltd.,
735 F.2d 61, 67 n.9 (3d Cir. 1984))
(internal citations omitted).

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11
merely suggests some level of coordinated
conduct.7 Of course, this relationship
ultimately may prove relevant to the
jurisdictional analysis. See Rusk, 444 U.S.
at 332 (“[T]he parties’ relationships with
each other may be significant in evaluating
their ties to the forum.”). But on the
allegations and affidavits presented, I
cannot infer the existence of a partnership
that would provide the basis for attributing
the jurisdictional contacts of one appellee
to them all.8
Aggregating appellees’ contacts
obscures important differences in their
individual forum activities and the alleged
conduct giving rise to the claims asserted.
For example, Smith’s contacts with New
Jersey in arranging his trip to China did
not involve Bogachoff or Mariner Yacht.
Moreover, as Miller Yacht’s affidavit
states, the China trip itself “was in
furtherance of negotiations that took place
between . . . Smith, Island Yacht Brokers
and Miller Yacht” relating to Island Yacht
becoming an exclusive dealer of “Marine
Trader” and “Trade Wind” yachts in
Maryland. Appellant App. 41. These
negotiations did not involve Bogachoff or
Mariner Yacht. Similarly, the primary
forum contact relied upon by the
majority—receipt of the Miller Yacht sales
brochure in New Jersey—is apparently
attributable only to Smith in his capacity as
agent for Island Yacht. Even assuming
Bogachoff had implied authority to act as
Smith’s agent during the broker-dealer
7.The allegations do support an inference
that Smith and Bogachoff acted as agents
for Island Yacht Brokers and Mariner
Trader respectively, and their forum
contacts as agents may be attributed to
the appellee corporations accordingly.
Grand Entm’t Group v. Star Media
Sales, Inc., 988 F.2d 476, 483 (3d Cir.
1993) (“[A]ctivities of a party’s agent
may count toward the minimum contacts
necessary to support jurisdiction.”).
8.Some courts have imputed jurisdictional
contacts to foreign defendants in the
absence of a partnership or other legal
entity based upon the conspiracy theory
of jurisdiction. See, e.g., Jungquist v.
Sheikh Sultan Bin Khalifa Al Nahyan,
115 F.3d 1020, 1031 (D.C. Cir. 1997)
(recognizing that the conspiracy theory
of personal jurisdiction requires plaintiff
to plead with particularity “the
conspiracy as well as the overt acts
within the forum taken in furtherance of
the conspiracy”) (citation omitted);
Textor v. Bd. of Regents, 711 F.2d 1387,
(continued...)
8.(...continued)
1392-93 (7th Cir. 1983) (applying
conspiracy theory of jurisdiction to
Illinois long-arm statute). That said,
“[w]hether personal jurisdiction can be
obtained under a state long-arm statute
on a conspiracy rationale at all is a
question of state law.” Stauffacher v.
Bennett, 969 F.2d 455, 460 (7th Cir.
1992). While it is unclear whether New
Jersey even recognizes the conspiracy
theory of jurisdiction, we need not
address this issue because Miller Yacht
has not alleged an actionable conspiracy.

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12
negotiations with Miller Yacht, this agency
relationship should not provide a basis for
imputing forum contacts by Smith to
Bogachoff or Mariner Yacht.
I recognize the Supreme Court has
r e j e ct e d o v e r l y “ m e c h a n i c a l o r
quantitative” tests of jurisdiction. Int’l
Shoe, 326 U.S. at 319. But even a realistic
approach to specific jurisdiction must
comport with due process, and due process
requires that we consider the forum
contacts of each defendant independently
according to the specific claims asserted.
III.
Even if the alleged forum-related
contacts could be attributed to all appellees
en masse, M iller Yacht’s claims do not
necessarily “arise out of or relate to” those
contacts. See Burger King, 471 U.S. at
472. The courts of appeals have adopted
divergent interpretations of “arise out of or
relate to” as that phrase relates to the
specific jurisdiction analysis. See United
Elec. Radio & Mach. Workers of Am. v.
163 Pleasant St. Corp., 960 F.2d 1080,
1089 (1st Cir. 1992) (describing
uncertainty among the circuits); see
generally Mark M. Maloney, Specific
Personal Jurisdiction and the “Arise from
or Relate to” Requirement...What Does It
Mean?, 50 Wash. & Lee L. Rev. 1265
(Summer 1993). The distinctions between
these interpretations are not without
constitutional significance, as the “arise
out of or relate to” requirement establishes
a due process limitation on the degree of
permissible attenuation between “the
defendant, the forum, and the litigation.”
Shaffer, 433 U.S. at 204.
At one end of the spectrum, the Court
of Appeals for the First Circuit has held
that with respect to a tort claim, a non-
resident defendant’s forum contacts must
provide the “cause in fact” and “legal
cause” for the plaintiff’s injury. Mass.
Sch. of Law, Inc. v. Am. Bar Assoc., 142
F.3d 26, 35 (1st Cir. 1998); see also
Marine v. Hyatt Corp., 793 F.2d 427, 430
(1st Cir. 1986) (holding that forum-related
contacts must form a “material element of
proof” in order for the cause of action to
“arise from or relate to” the forum
contacts). At the other end of the
spectrum, the Courts of Appeals for the
Fifth and Ninth Circuits formulate a more
expansive interpretation of “arise out of or
relate to,” under which a non-resident
defendant’s forum contacts are sufficient if
they provide a “but for” cause for
plaintiff’s injury. See Prejean v.
Sonatrach, Inc., 652 F.2d 1260, 1270 n.21
(5th Cir. 1981) (noting that “contractual
contacts” may provide “but for” causation
for a claim sounding in tort); Doe v. Am.
Nat’l Red Cross, 112 F.3d 1048, 1051 n.7
(9th Cir. 1997) (“[T]he ‘but for’ test is still
employed in determining whether a
plaintiff’s injuries arose out of a
defendant’s forum-related activities.”).
Under this standard, a plaintiff’s claim
“arises out of or relates to” a foreign
defendant’s contacts with the forum if the
defendant’s forum activities provide a link
in the causal chain which ultimately leads
to plaintiff’s injury.

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13
Still other courts have navigated a
course between these positions. For
example, in Chew v. Dietrich, 143 F.3d 24
(2d Cir. 1998), the Court of Appeals for
Second Circuit has suggested a sliding
scale approach to evaluating the
“relatedness” of specific jurisdiction
contacts, which more closely resembles the
“but for” standard in its potentially
expansive scope:
[T]he relatedness test is but a part
of a general inquiry which is
designed to determine whether the
exercise of personal jurisdiction in
a particular case does or does not
offend “traditional notions of fair
play and substantial justice.” . . .
Where the defendant has had only
limited contacts with the state it
may be appropriate to say that he
will be subject to suit in that state
only if the plaintiff’s injury was
proximately caused by those
contacts. Where the defendant’s
contacts with the jurisdiction that
relate to the cause of action are
more substantial, however, it is not
unreasonable to say that the
defendant is subject to personal
jurisdiction even though the acts
within the state are not the
proximate cause of the plaintiff’s
injury.
143 F.3d at 29 (citations omitted).
By contrast, the Court of Appeals for
the Seventh Circuit has rejected this sort of
“hybrid” jurisdictional analysis which
effectively blends the concepts of general
and specific jurisdiction:
We cannot simply aggregate all of
a defendant’s contacts with a
state—no matter how dissimilar in
terms of geography, time, or
substance—as evidence of the
constitutionally required minimum
contacts . . . [W]hen conducting
business with a forum in one
context, potential defendants
should not have to wonder whether
some aggregation of other past and
future forum contacts will render
them liable to suit there. Unless
their contacts are continuous and
systematic enough to rise to the
level of general jurisdiction,
individuals and corporations must
be able to conduct interstate
business confident that transactions
in one context will not come back
to haunt them unexpectedly in
another.
RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d
1272, 1277 (7th Cir. 1997) (citations
omitted). The Supreme Court has yet to
definitively resolve the appropriate scope
of the “arise out of or relate to”
requirement. See Carnival Cruise Lines,
Inc. v. Shute, 499 U.S. 585, 589 (1991)
(declining to reach the scope of the
relatedness requirement despite having
certified it for review).
Although we have not expressly
articulated our view on the “arise out of or
relate to” requirement, our cases implicitly
apply an immediate or proximate cause

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14
standard. In analyzing jurisdictional
contacts on a claim-by-claim basis, we
have been careful to note that forum
contacts supporting a contract claim are
not necessarily relevant to establishing
jurisdiction over a tort claim. For
example, in Remick, we noted “there are
different considerations in analyzing
jurisdiction over contract claims and over
certain tort claims.” 238 F.3d at 255-56.
In that case, we separately analyzed the
forum contacts supporting jurisdiction
over plaintiff’s breach of contract, tortious
i n t e r f e r e n c e w i t h c o n t r a c t ,
m isappropriation of im age, civil
conspiracy and defamation claims. In
finding specific jurisdiction over the
breach of contract claim, we noted the
contract had been solicited, negotiated,
consummated and performed in the forum.
At the same time however, we found
insufficient contacts to support jurisdiction
o v e r plaintiff ’s def ama tio n a n d
misappropriation claims notwithstanding
an express contractual relationship
between plaintiff and defendant clearly
situated in the forum. In finding specific
jurisdiction over plaintiff’s intentional
interference with contract claim, we
reasoned that although the claim sounded
in tort, it was “necessarily related to the
contract” that was the subject of the
alleged tortious interference. Id. at 260.
Likewise, in Vetrotex CertainTeed
Corp. v. Consolidated Fiber Glass Prods.
Co., 75 F.3d 147, 153 (3d Cir. 1995), we
concluded that only “dealings between the
parties in regard to the disputed contract,
not dealings unrelated to the cause of
action,” are relevant to the minimum
contacts analysis. Vetrotex involved a
breach of contract dispute over payments
due under a 1992 supply agreement
between Vetrotex and Consolidated Fiber
Glass. The district court dismissed the
complaint for lack of specific jurisdiction.
We affirmed noting various contracts
between Vetrotex and Consolidated Fiber
Glass over the previous ten years were not
sufficiently related to the claims based
upon the contested supply agreement to
give rise to jurisdiction. The claim-by-
claim partitioning of jurisdictional contacts
evid ent in Rem ick and Vetro tex
demonstrates that forum contacts which
merely provide a general context for the
parties’ relationship are insufficiently
related to a claim to support specific
jurisdiction.
Moreover, our holding in Pinker v.
Roche Holdings, Ltd., 292 F.3d 361 (3d
Cir. 2002), supports application of the
proximate cause standard. In Pinker,
investors filed a securities fraud class
action alleging foreign defendant Roche
made material misrepresentations and
misleading statements in press releases and
reports filed with the Securities and
Exchange Commission which caused
plaintiffs to pay artificially high prices for
Roche ADRs. The district court dismissed
the complaint for lack of personal
jurisdiction and we affirmed. The majority
holds we based our dismissal “solely on
the defendant’s sponsorship of the ADR
facility at issue, an action that certainly
was not the proximate cause of the
fraudulent misrepresentation.” But the

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15
misrepresentation claim was not predicated
on sponsorship of the ADRs per se, but
rather on the allegedly fraudulent
information Roche filed with securities
regulators in connection with that
sponsorship. In finding Roche established
minimum contacts by purposefully
directing its activities towards the forum,
the court noted that “a foreign corporation
that has created an American market for its
securities can fairly expect that that market
will rely on reports and media releases
issued by the corporation.” Id. at 372.
The forum contact in Pinker—reporting
incorrect or fraudulent information to
federal regulators— was the proximate
c a u s e o f p l a in t i f fs ’ f r au d u l e n t
misrepresentation claim.
IV.
A.
The majority finds specific jurisdiction
over appellees based on “three important
contacts, and the context of those
contacts.” The first contact concerns
Miller Yacht’s allegation that Smith and
Island Yacht came to New Jersey to
receive one of its sales brochures.
Because receipt of the brochure represents
t h e “ f i r s t s t e p ” t o w a r d s t h e
misappropriation of M iller Yacht’s
photographs, floor plans and trade dress,
the majority concludes this contact
provides a sufficient jurisdictional basis
for appellant’s common law and statutory
unfair competition and trade dress
infringement claims. I have a different
view.
Miller Yacht’s unfair competition and
trade dress infringement claims relate to
misuse of its intellectual property, not to
the mere acquisition or possession of that
property.9 For example, the Lanham Act,
15 U.S.C. § 1125(a), on which Miller
Yacht’s infringement of trade dress (Count
I) and federal unfair competition claims
(Count II) are based, prohibits the “use[] in
commerce” of any false descriptions or
designations of origin which are likely to
cause confusion regarding the origin of
goods or services of another. Id.
(emphasis added). Likewise, the New
Jersey Unfair Competition Act (Counts III
and IV) prohibits a person from
appropriating “for his or their own use a
name, brand, trade-mark, reputation or
goodwill of any maker in whose product
such merchant, firm or corporation deals.”
N.J. Stat. § 56: 4-1. A claim for unfair
competition under New Jersey common
law (Count V) is substantially similar.
American Tel & Tel. Co. v. Winback &
Conserve Program, Inc., 42 F.3d 1421,
1433 (3d Cir. 1994).
Although receipt of the sales brochure
by Smith and Island Yacht in New Jersey
may have provided the “first step” for
Miller Yacht’s unfair competition and
trade dress infringement claims, this
contact at most might supply the “but for”
9.There are no allegations that Smith
improperly acquired the brochure. It
appears Miller Yacht voluntarily
provided the brochure to Smith during
negotiations over the trademark licensing
and exclusive dealership agreements.

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16
causation for these claims. The conduct
which provides the immediate cause of
injury relates to the subsequent improper
use of the material contained in the
brochure. Applying the proximate cause
s t a n d a rd , M i l l e r Y a ch t ’ s u n fa ir
competition and trade dress infringement
claims against Smith and Island Yacht do
not “arise out of or relate to” receipt of the
sales brochure.
B.
The majority observes that “plac[ing]
the misappropriated photos and floor plans
in boating magazines circulated in New
Jersey and in at least one brochure that was
sent directly to a potential customer in
New Jersey” provides a “strong contact” in
support of appellant’s unfair competition
and trade dress infringement claims. The
record reveals that these allegedly
improper transmissions into the forum
actually involve: (1) the use of allegedly
misappropriated photographs and floor
plans in Island Yacht advertisements
which appear in trade publications
distributed in New Jersey; and (2) the use
of allegedly misappropriated photographs
by Mariner Yacht in a sales brochure
distributed to a single New Jersey resident.
See JA 44, 47-48. These contacts should
be evaluated separately to determine
whether they provide a sufficient basis for
exercising specific jurisdiction.
Advertising in a trade publication that
reaches the forum generally does not,
without more, provide a sufficient basis
for exercising specific jurisdiction over a
foreign defendant. See, e.g., Mesalic v.
Fiberfloat Corp., 897 F.2d 696, 700 n.10
(3d Cir. 1990) (noting that non-resident
defendant’s marketing strategy, including
advertising in national publications
distributed in the forum, provided only
tangential support for specific personal
jurisdiction); Gehling, 773 F.2d at 542
(holding that advertising in newspapers
which reach the forum are insufficient to
establish “minimum contacts”). Moreover,
there is no evidence in the record
regarding the frequency with which Island
Yacht advertised in these publications, the
number of New Jersey residents reached,
or whether Island Yacht had any
knowledge or control over the extent to
which they targeted New Jersey
consumers. Nevertheless, the extent or
frequency of advertising in the forum may
be less significant where, as here, the
plaintiff’s unfair competition and trade
dress infringement claims arose directly
out of the improper use of Miller Yacht’s
photographs, plans and trade dress in
commerce. Burger King, 471 U.S. at 476
n.18 (“So long as it creates a ‘substantial
connection’ with the forum, even a single
act can support jurisdiction.”). I agree
with the majority that the allegations
relating to Island Yacht’s publication of
certain advertisements in trade journals
that reached New Jersey are sufficiently
related to Miller Yacht’s unfair
competition and trade dress claims as to
provide specific jurisdiction over Island
Yacht with respect to those claims.
But there are no allegations or any
evidence in the record that appellee Smith
was involved in this advertising effort or

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17
otherwise was engaged in conduct that
would permit imputing Island Yacht’s
forum contacts to him. Nicholas v. Saul
Stone & Co. LLC, 224 F.3d 179, 184 (3d
Cir. 2000) (“[J]urisdiction over . . .
[individual] defendants does not exist
simply because they are agents or
employees of organizations w hich
presumably are amenable to jurisdiction.”).
Likewise, for reasons stated, I would not
impute this contact to appellees Bogachoff
or Mariner Yacht.
The second contact involves the
mailing of a Mariner Yacht brochure
allegedly containing M iller Yacht’s
photographs to a single New Jersey
resident. This contact is in some ways
more significant for jurisdictional purposes
than advertising in a regional trade
publication because it specifically targets
a resident of the forum. And, here again,
plaintiff’s unfair competition and trade
dress infringement claims arise directly out
of the allegedly improper use of Miller
Yacht’s photographs, plans and trade dress
in the sales brochure. As such, I agree
with the majority that this contact gives
rise to specific jurisdiction over Mariner
Yacht on the unfair competition and trade
dress infringement claims. However,
because there is no allegation that
Bogachoff or Smith were involved in
sending the sales brochure into New
Jersey, there is no basis for imputing this
contact to them.
C.
The majority observes that the pre-
contractual negotiations in New Jersey
provided appellees the opportunity to deal
with two Chinese companies with which
Miller Yacht apparently had preexisting
business relationships to design and build
34' and 38' double cabin and sedan yachts.
The majority concludes these negotiations
provide a jurisdictional basis for Miller
Yach t’s tortious interference with
prospective economic advantage claim.
To establish a claim for tortious
interference with prospective economic
advantage, a plaintiff must show (1)
unlawful, intentional interference with the
prospect of, or reasonable expectation of,
economic advantage, and (2) a reasonable
probability that the plaintiff would have
received the anticipated economic benefits
had there been no interference. See
Harp er-Lawrence, Inc. v. U nited
Merchants & Mfrs., Inc., 619 A.2d 623,
630 (N.J. Super. Ct. App. Div. 1993).
While the pre-contractual negotiations may
have provided appellees with names and
contact information, there are no
allegations that appellees solicited
business from or negotiated a business
relationship with the Chinese boat
manufacturers while in New Jersey. If
anything, it would appear that these
activities took place in China or from
appellees’ principle places of business
outside the forum. While the effect or
injury resu l t in g f rom appellees’
interactions with these Chinese firms
ultimately may have been felt by Miller
Yacht in New Jersey, I find no forum
contacts which provide a basis for specific
jurisdiction on the tortious interference
claim.

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18
D.
Finally, in addition to appellees’
discrete forum contacts, the majority
suggests that appellees’ unrelated pre-
misappropriation conduct in New Jersey
provides a “nexus” between appellees and
the forum. For example, the majority
notes that appellees attended trade shows
in New Jersey “and in adjoining states,”
and advertised in magazines distributed in
New Jersey. But there are no allegations
that this conduct relates to the claims
asserted. While stating these contacts are
not “essential to this litigation” and are
only “indirectly related to Millar Yacht’s
trade dress and unfair competition claims,”
the majority concludes the “sum of these
contacts shows that Appellees purposefully
availed themselves of New Jersey.”
A forum contact that might otherwise
prove jurisdictionally insufficient under a
specific jurisdiction analysis may appear
more convincing when swaddled in the
more extensive, yet unrelated, forum
contacts of a foreign defendant. And the
contacts upon which the majority
relies—attendance at trade shows,
negotiating in the forum—may well go
toward establishing New Jersey’s general
jurisdiction over appellees. But the parties
agree that appellees’ forum contacts are
not so “continuous and systematic” to give
rise to general jurisdiction. As such, I
would not consider appellees’ pre-
misappropriation and unrelated forum
contact as part of the specific jurisdiction
analysis. “We cannot simply aggregate all
of a defendant’s contacts with a state—no
matter how dissimilar in terms of
geography, time, or substance—as
evidence of the constitutionally required
minimum contacts.” RAR, 107 F.3d at
1277. Rather, specific jurisdiction will lie
over a foreign defendant when the claim
asserted “arises out of or relates to” the
foreign defendant’s contacts with the
forum. Burger King, 461 U.S. at 472.
Emphasizing contacts unrelated to the
asserted causes of action blurs the
fundamental distinction between specific
and general jurisdiction.
V.
In sum, I would find that only Island
Yacht and Mariner Yacht have
constitutionally sufficient “minimum
contacts” with New Jersey to support
specific jurisdiction as to plaintiff’s unfair
competition and trade dress infringement
claims. I would not find specific
jurisdiction over any of the appellees with
respect to the tortious interference with
prospective economic advantage claim. I
would not end the jurisdictional inquiry
here, however.
Where a non-resident defendant’s
contacts with the forum alone are
insufficient to establish specific personal
jurisdiction, “we must consider whether
the application of Calder v. Jones, can
change the outcome.” IMO Indus., 155
F.3d at 259-60 (citation omitted). In
Calder v. Jones, 465 U.S. 783 (1984), the
Supreme Court set forth an “effects test”
for determining personal jurisdiction over
non-resident defendants who commit
intentional torts with effects inside the
forum. “[U]nder Calder an intentional tort

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19
directed at the plaintiff and having
sufficient impact upon it in the forum may
suffice to enhance otherwise insufficient
contacts with the forum such that the
‘minimum contacts’ prong of the Due
Process test is satisfied.” IMO Indus., 155
F.3d at 260.10 Because Miller Yacht’s
claims sound in tort,11 I would remand for
the District Court to consider whether the
effects of appellees’ non-forum conduct
give rise to specific jurisdiction under the
Calder framework.
10.In IMO Industries, we held that to
establish jurisdiction under the “effects
test,” plaintiff must show: (1) defendant
committed an intentional tort; (2)
plaintiff felt the brunt of the harm 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 that tort; and
(3) 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. Id. at 265-
66. We recognized that this
“conservative reading of Calder may
significantly limit the types of business
tort cases that will satisfy the
requirements of personal jurisdiction,”
but added that Calder did not “carve out
a special intentional torts exception to the
traditional specific jurisdiction analysis,
so that a plaintiff could always sue in his
or her home state.” Id.
11.We have described “unfair
competition,” and causes of action under
the Lanham Act as intentional business
torts. See Granite State Ins. Co. v.
Aamco Transmissions, Inc., 57 F.3d 316,
321 (3d Cir. 1995) (“[T]he Lanham Act
is derived generally and purposefully
(continued...)
11.(...continued)
from the common law tort of unfair
competition, and its language parallels
the protections afforded by state common
law and statutory torts.”) (citation
omitted). Tortious interference with
prospective economic advantage
similarly sounds in tort, and other circuits
have recognized copyright infringement
as an intentional tort. See, e.g., Bucklew
v. Hawkins, Ash, Baptie & Co., LLP, 329
F.3d 923, 931 (7th Cir. 2003)
(“Copyright infringement . . . is an
intentional tort.”).

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