Filed: May 21, 2003
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2003 Decisions States Court of Appeals for the Third Circuit 5-21-2003 MoneyGram Payment v. Consorcio Oriental Precedential or Non-Precedential: Non-Precedential Docket 01-4386 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003 Recommended Citation "MoneyGram Payment v. Consorcio Oriental" (2003). 2003 Decisions. Paper 542. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/542 This decision is brought to you for free and
Summary: Opinions of the United 2003 Decisions States Court of Appeals for the Third Circuit 5-21-2003 MoneyGram Payment v. Consorcio Oriental Precedential or Non-Precedential: Non-Precedential Docket 01-4386 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003 Recommended Citation "MoneyGram Payment v. Consorcio Oriental" (2003). 2003 Decisions. Paper 542. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/542 This decision is brought to you for free and o..
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Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
5-21-2003
MoneyGram Payment v. Consorcio Oriental
Precedential or Non-Precedential: Non-Precedential
Docket 01-4386
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003
Recommended Citation
"MoneyGram Payment v. Consorcio Oriental" (2003). 2003 Decisions. Paper 542.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/542
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-4386
MONEYGRAM PAYM ENT SYSTEMS, INC.
Appellant
v.
CONSORCIO ORIENTAL, S.A.;
ROBERTO LOPEZ;
FREDDY LOPEZ;
JOHN DOES 1-10
On Appeal from the United States District Court
for the District of New Jersey
D.C. Civil No.00-cv-03764
District Judge: Hon. Katharine S. Hayden
Argued: July 19, 2002
BEFORE: McKee, Fuentes & Aldisert, Circuit Judges
(Filed: May 21, 2003)
Kevin M. Mattessich, Esquire (Argued)
Cozen & O’Connor
One Newark Center
Suite 1900
Newark, NJ 07102
Attorney for Appellant
Richard A. DePalma, Esquire (Argued)
Anthony P. Callaghan, Esquire
Coudert Brothers
1114 Avenue of the Americas
New York, NY 10036
Attorneys of Appellees
OPINION OF THE COURT
McKee, Circuit Judge
MoneyGram Payment Services, Inc. appeals the district court’s November 13,
2001 Memorandum Order granting defendants’ motion to dismiss under Fed. R. Civ. P.
12(b). MoneyGram sought money damages for an alleged breach of contract and related
torts. MoneyGram argues that the district court erred in dismissing the suit sua sponte on
grounds that went beyond the scope of the court’s Scheduling Order. We will affirm.1
I.
Inasmuch as we write only for the parties who are familiar with the background of
this dispute, we need not set forth the underlying facts except insofar as may be helpful to
our discussion.
MoneyGram argues that the district court erred in basing its dismissal on the forum
selection clause contained in the Agency and Trust Agreement between it and Consorcio
Oriental, S.A., a privately held Dominican Republic corporation. That forum selection
clause provides, in pertinent part, that “any action or proceeding initiated under this
Agreement shall be maintained exclusively in the courts of the State of New York or of
1
Our review of a district court’s grant of a Rule 12(b) motion to dismiss is plenary. See
Wilson v. Quadramed Corp., 225 F.3d 350, 353 (3d Cir. 2000).
2
the United States of America for the Southern District of New York.” (Agreement at ¶
21).
In addition, ¶ 22 of the Agreement provides that “[a]ny unresolved dispute,
controversy or claim arising out of or relating to [the Agreement] shall be resolved
exclusively by final and binding arbitration . . . with the place of arbitration to be New
York, New York[]” (emphasis added). An Amendment to ¶ 22 removes all doubt as to
the materiality of the arbitration clause to the bargain struck by the contracting parties.
The Amendment states that arbitration “IS EXPRESSLY BARGAINED FOR BY THE
PARTIES AND IS A MATERIAL INDUCEMENT TO [ENTERING] INTO THE
AGREEMENT.” Additional Terms at ¶ H (emphasis in original).
Despite this explicit language, MoneyGram filed the instant suit in the United
States District Court for the District of New Jersey, and now urges that we interpret these
broad clauses very narrowly so as to reach a result that would to be in direct contradiction
to the contract MoneyGram is trying to enforce. MoneyGram argues that the nature of
the defendants’ alleged wrongdoing preempts the scope of these provisions, and it insists
that the district court’s conclusion to the contrary was error. It also argues that the district
court “blind sided” 2 it by resting its decision on the forum selection clause sua sponte
without affording MoneyGram an adequate opportunity to demonstrate why the forum
selection clause should not be enforced. We disagree.
2
This is our term, not MoneyGram’s.
3
Initially, we note that the Scheduling Order that MoneyGram claims narrowed the
issues that the district court would consider3 stated:
IT IS . . . ORDERED that Defendants Roberto Lopez and
Freddy Lopez . . . shall file and serve their motion contesting
this Court’s exercise of personal jurisdiction over them and
Defendant . . . Consorcio . . . shall file and serve its motion
demanding referral of this matter to arbitration pursuant to the
terms of the parties’ agreement.
A103-104 (emphasis added). The “parties’ agreement” clearly included the
aforementioned forum selection and arbitration clauses, both of which required
MoneyGram to bring any action or proceeding in New York rather than New Jersey
where it chose to file suit. Accordingly, we can not accept MoneyGram’s claim of
“surprise” that the district court, upon reviewing the very agreement referred to in the
Scheduling Order, concluded that the action belonged in New York, not in New Jersey.
MoneyGram would have us conclude that filing suit in New Jersey is somehow
consistent with provisions requiring “[a]ny unresolved dispute . . . arising out of” the
Agreement, or “any action or proceeding initiated” under the Agreement, to be brought in
New York City. MoneyGram attempts to escape the operation of the forum selection
clause, in part, by arguing fraud. However, we will not redraft this Agreement, as
MoneyGram’s argument requires, merely because MoneyGram bottoms its claim for
damages on alleged fraud and conversion it claims occurred in New Jersey.
In Coastal Steel Corp. v. Tilghman Wheelabrator, Ltd., 709 F.2d 190 (3d Cir.
1983), we stated that:
3
The Scheduling Order was entered by the Magistrate Judge, not by the District Judge.
4
a forum selection clause is presumptively valid and will be
enforced by the forum unless the party objecting to its
enforcement establishes (1) that it is the result of fraud or
overreaching; (2) that enforcement would violate strong
public policy of the forum; or (3) that enforcement would in
the particular circumstances of the case result in jurisdiction
so seriously inconvenient as to be unreasonable.
Id. at 202.
Significantly, MoneyGram does not allege that it was fraudulently induced into
entering this Agreement. Indeed, MoneyGram’s own Complaint establishes the contrary.
MoneyGram alleges: “Between October 1, 1999 and January 6, 2000, computer error
caused duplicate pre-funding to be made into Consorcio’s New Jersey bank account.”
Complt at ¶¶ 12-15, Appellant’s Br. at 8 (emphasis added). According to MoneyGram,
the defendants knew of this error and fraudulently converted the excess payments to their
own use rather than alerting MoneyGram to the error and repaying the duplicate
payments.
In Scherk v. Alberto-Culver Co., the Supreme Court addressed how claims of
fraud affect the enforceability of a forum-selection clause. 417 U.S. 506, 513 (1974).
There, Alberto-Culver, an American manufacturer, purchased three German enterprises
from Scherk, a German citizen.
Id. at 508. The purchase contract contained an
arbitration clause that the Court
described as “a specialized forum-selection clause that posits not only the situs of suit but
also the procedure to be used in resolving the dispute.”
Id. at 519. The clause provided
that any controversy or claim arising under the contract would be referred to arbitration
5
before the International Chamber of Commerce in Paris, France. Id. at 508 n.1. One year
after the contract was finalized, Alberto Culver discovered that certain trademark rights
purchased under the contract were encumbered.
Id. at 509. That was contrary to
representations made by Scherk during contract negotiations.
Id. at 508. Consequently,
Alberto-Culver filed suit in federal district court in Illinois alleging, inter alia, fraud.
Id.
at 509. Scherk responded with a motion to dismiss for lack of personal jurisdiction.
Id.
The Court relied upon M/S Bremen v. Zapata Off-Shore Co.,
407 U.S. 1 (1972), in
upholding enforcement of the forum selection clause despite allegations of fraud.
Id. at
518. The Court noted that the concern it had expressed in M/S Bremen regarding
enforcing such clauses in suits alleging fraud:
does not mean that any time a dispute arising out of a
transaction is based upon an allegation of fraud, as in this
case, the clause is unenforceable. Rather, it means that an
arbitration or forum-selection clause in a contract is not
enforceable if the inclusion of that clause in the contract was
the product of fraud or coercion.
Id. at 519 n. 14.
Thus, contrary to MoneyGram’s position here, the mere allegation of fraudulent
conduct does not suspend operation of a forum selection clause. Rather, the proper
inquiry is whether the forum selection clause is the result of “fraud in the inducement of
the [forum-selection] clause itself.” Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388
U.S. 395, 403-04 (1967).
MoneyGram does not claim that defendants fraudulently caused it to enter into the
forum selection clause, arbitration clause, or the Agreement. Indeed, as mentioned above,
6
MoneyGram argues that fraud occurred after the contractual relationship was formed and
it came about as a result of defendants not properly responding to unintentional
“computer error.” Accordingly, the district court quite properly held MoneyGram to its
own agreement by dismissing the action in favor of a New York forum. See Coastal Steel
Corp., 709 F.2d at 202.
We are similarly not convinced by MoneyGram’s claim that the court’s “sua
sponte” reliance on the forum selection clause deprived it of an opportunity to establish
that the clause ought not to be enforced for reasons of public policy and severe burden.
As Justice Kennedy noted in his concurring opinion in Stewart Org. Inc. v. Ricoh Corp.,
487 U.S. 22 (1988), “a valid forum selection clause [should be] given controlling weight
in all but the most exceptional case.” Moreover, the party opposing enforcement of a
forum selection clause has a “heavy burden of showing not only that the balance of
convenience is strongly in favor of [a different forum] but also that [resolution in the
selected forum] will be so manifestly and gravely inconvenient to [it] that it will be
effectively deprived of a meaningful day in court.” Zapata Off-Shore
Co., 407 U.S. at 19.
We are hard pressed to accept MoneyGram’s claim that bringing a proceeding in New
Jersey, rather than just across a river in New York City is now so inconvenient that it
should be excused from the contractual undertaking in which it agreed to do just that.
MoneyGram argues that the district court erred in dismissing its claims without
first providing it with an opportunity to make the requisite “strong showing” that the
clause was the result of fraud or overreaching, that enforcement of the clause would
violate public policy in the forum, or that enforcement of the clause in a particular case
7
would be so inconvenient as to be unreasonable. MoneyGram claims that it could have
developed a record in support of its claim that the clause violated public policy by
“exploring State regulation of the money transfer industry, or the State’s interest in
protecting funds entrusted by customers for transfer.” Appellant’s Br. at 22-3. Yet, even
now, MoneyGram offers nothing to support these vague reference. MoneyGram is, after
all, suing to enforce that very Agreement according to its terms, and those terms require
MoneyGram to raise its purported claims of unfairness or public policy in a New York
court, or before a panel of arbitrators in New York.
MoneyGram cites Zelson v. Thromforde, 412 F.2d 56, 58-59 (3d Cir. 1969), to
support its contention that the district court erred in raising the forum selection clause sua
sponte and impermissibly granting defendants’ 12(b) motion to dismiss in reliance on that
clause. In Zelson, the district court dismissed the action “without the issue [of personal
jurisdiction] having been raised below by defendant-appellees.”
Id. In that context, we
stated that “a court may not sua sponte dismiss for want of personal jurisdiction, at least
where a defendant has entered an appearance by filing a motion.”
Id. That is not the case
here. Rather, Consorcio and the Lopez brothers filed an Answer raising several
affirmative defenses including the arbitration clause, improper venue, and lack of
personal jurisdiction over the individual defendants. A42.
B.
MoneyGram also faults the district court for failing to rule on whether it had
personal jurisdiction over the individual defendants. It argues:
8
[b]y entwining the individual Defendants in its sua sponte use
of the forum selection clause, the District Court failed to
address whether or not it had personal jurisdiction over those
Defendants on the grounds briefed by the parties. The record
before the Court, however, was sufficient to establish that
jurisdiction.
Appellant’s Br. at 25. The district court’s only response to the defendants’ challenge to
in personam jurisdiction was the following query: “Why would the Court deal with the
issue of jurisdiction . . . over Robeto Lopez and Freddie Lopez, one has to ask, if the
parties have already agreed that . . . ‘any action . . . under this Agreement shall be
maintained exclusively in the courts of the State of New York.’” Dist. Ct. Op. at 8.
However, the district court’s reasoning on this issue ignores the fact that the
Agreement containing that forum selection clause is between MoneyGram and
Consorcio. Neither Roberto Lopez nor Freddie Lopez signed the Agreement in their
individual capacities. Rather, they signed as officers of the corporate entity, Consorcio.
MoneyGram’s allegations and jurisdictional arguments sweep broadly enough to reach
Roberto and Freddie as individuals. Yet, ironically, MoneyGram challenges the court’s
dismissal of claims against them by arguing “the Agency and Trust Agreement between
Consorcio and MoneyGram [] . . . is wholly inapplicable to the individual defendants.”
Appellant’s Br. at 33. We agree.4 However, we disagree with MoneyGram’s position
that the court had in personam jurisdiction over those two individuals.
4
The district court’s oversight in this regard is clearly understandable since
MoneyGram’s claims of error evidence a convenient lapse in the distinction between
corporate and individual actions and liability.
9
A federal court has personal jurisdiction over a nonresident defendant to the extent
authorized under the law of the forum state in which the district court sits, within
constitutional limitations of due process. Fed. R. Civ. P. 4(e); see also Sunbelt Corp. v.
Noble, Denton & Assoc., Inc., 5 F.3d 28, 31 (3d Cir. 1993). Therefore, we begin an
inquiry into the district court’s jurisdiction over the individual defendants by looking to
New Jersey’s long-arm statute. New Jersey courts have held that that statute reaches to
the “outermost limits permitted by the United States Constitution.” Avdel Corp. v.
Mecure,
277 A.2d 207, 209 (N.J. 1971); see also N.J. Ct. R. 4:4-4. Thus, the reach of
the New Jersey statute is coextensive with the Due Process Clause of the Fourteenth
Amendment.
In all cases where the defendant moves for dismissal for lack of personal
jurisdiction “the plaintiff bears the burden of demonstrating contacts with the forum state
sufficient to give the court in personam jurisdiction.” Time Share Vacation Club v.
Atlantic Resorts Ltd., 735 F.2d 61, 63 (3d Cir. 1984). In reviewing a ruling on a motion
to dismiss for lack of in personam jurisdiction, we accept plaintiff’s allegations as true
and construe disputed facts in favor of the plaintiff. Carteret Sav. Bank v. Shushan,
954
F.2d 141, 142 n.1 (3d Cir. 1992), cert. denied,
506 U.S. 817.
Personal jurisdiction over a nonresident defendant may be asserted in two
contexts. General jurisdiction exists when a defendant has maintained such continuous
and systematic contacts with the forum state that the defendant is generally subject to the
exercise of a court’s jurisdiction there without regard to the relationship between the
court action and the forum. See Helicopteros Nacionales de Colombia, S. A. v. Hall, 466
10
U.S. 408, 414-415 (1984). Specific jurisdiction is far narrower, however. It arises when
“the claim is related to or arises out of the defendant’s contacts with the forum.” Dollar
Sav. Bank v. First Sec. Bank of Utah,
746 F.2d 208, 211 (3d Cir. 1984). Specific
jurisdiction arises within the context of the relationship between the defendant, the cause
of action, and the forum embodied in the “minimum contacts” analysis announced in
International Shoe Co. v. Washington,
326 U.S. 310 (1945).
Under International Shoe, a federal court can only assert personal jurisdiction over
a nonresident defendant if the “minimum contacts” between the defendant and the forum
“do not offend ‘traditional notions of fair play and substantial justice.’” 326 U.S. at 316.
Those contacts must be sufficient to make it “reasonable, in the context of our federal
system of government, to require the [defendant] to defend the particular suit which is
brought there.”
Id. at 317.
The reasonableness of subjecting a nonresident defendant to the courts of a given
forum depend upon the “quality and nature of the defendant’s activity” in the forum state.
Hanson v. Denckla, 357 U.S. 235, 253 (1958). The plaintiff must establish that the
defendant has “purposefully availed itself of the privilege of conducting activities within
the forum state, thus invoking the benefits and protections of its laws.”
Id.
Ultimately, “the 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 Mgmt., Inc. v. Admiral Ins. Co.,
649 A.2d 379, 388-89 (N.J. 1994). Here,
MoneyGram is asking the federal court to exercise in personam jurisdiction over both a
corporate entity and two individuals in their individual capacities. As noted above, both
11
of those individuals are officers of the corporate defendant. MoneyGram alleges:
“Defendants themselves concede that those individual Defendants have traveled to New
Jersey, and Freddy Lopez traveled to the State to establish a bank account in Consorcio’s
name specifically for the purpose of doing business in New Jersey with a business then
located in the State.” Appellant’s Br. at 28. (Emphasis Added). However, the “business”
that MoneyGram seeks to attribute to Freddie was opening Consorcio’s bank account.
MoneyGram concedes this. It states: “Fairly read, the Complaint shows additionally,
inter alia, that the Lopez brothers are officers and owners of Consorcio, and, as such,
direct and control the actions of the corporation and its agents.” Id. at 29. MoneyGram
then goes on to argue that the Lopez brothers used the New Jersey bank account to
systematically conduct business with MoneyGram’s New Jersey office. However, once
again, MoneyGram ignores that the “business” that forms the basis of its claims is the
business of the Dominican corporation. It is not the business of the individual officers
and shareholders who are Dominican citizens with no identified contact with New Jersey
other than in their capacity as corporate agents.
It is axiomatic that “jurisdiction over . . . [individual] defendants does not exist
simply because they are agents or employees of organizations which presumably are
amenable to jurisdiction in” a particular forum. Nicholas v. Saul Stone & Co., 224 F.3d
179, 184 (3d Cir. 2000) (citing Keeton v. Hustler Magazine, Inc.,
465 U.S. 770, 781
(1984)). Rather, “[e]ach defendant’s contacts with the forum state must be assessed
individually.”
Id. at 781 n.13.
12
MoneyGram argues that Roberto and Freddy Lopez used Consorcio’s New Jersey
bank account “to conduct regular and systematic business with MoneyGram,”
Appellant’s Br. at 29. However, M oneyGram’s attempt to ensnare Roberto and Freddie
Lopez in a jurisdictional web by reciting Consorcio’s contacts with New Jersey both
ignores and obfuscates Consorcio’s separate legal identity. Although MoneyGram has
clearly asserted a sufficient basis for in personam jurisdiction over Consorcio, its
Complaint falls woefully short of establishing the nexus necessary to extend that
jurisdiction to either Freddie or Roberto Lopez. See Saul Stone & Co., 224 F.3d at 184.
Moreover, the deficiencies of MoneyGram’s complaint can not be spackled over
by MoneyGram’s allegations of fraud. In Imo Indus. Inc. v. Kiekert, 155 F.3d 254 (3d
Cir. 1998), we stated that allegations of fraud may support in personam jurisdiction
where:
(1) The defendant committed an intentional tort; (2)
The 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) The
defendant expressly aimed his tortious conduct at the forum
such that the forum can be said to be the focal point of the
tortious activity.
Id. at 265-66. Under the third prong, “the plaintiff must show that the defendant knew
that the plaintiff would suffer the brunt of harm caused by the tortious conduct in the
forum, and point to specific activity indicating that the defendant expressly aimed its
tortious conduct at the forum.”
Id.
13
MoneyGram claims that the Lopez brothers committed a fraud by
remaining silent about the excess deposited in the New Jersey account, and then
fraudulently conveying that money to other corporate entities. However, the silence
emanated from their residence in the Dominican Republic, and nothing suggests that the
other entities that they owned were located anywhere else; there is certainly nothing to
allow us to conclude that any of them were in New Jersey; and MoneyGram does not
argue to the contrary.
II.
Thus, although we agree with MoneyGram that the district court erred in enforcing
the forum selection clause and arbitration clause against Roberto and Freddie Lopez, we
hold that the Complaint here fails to establish in personam jurisdiction over them.
Accordingly, we will affirm the district court’s dismissal of the Complaint under Fed. R.
Civ. P. 12(b).
TO THE CLERK OF THE COURT:
Please file the foregoing Opinion
/s/ Theodore McKee
Circuit Judge
14
15
