United States District Court, D. Delaware
Bernard Katz, Wilmington, Delaware. Pro Se Plaintiff.
Christopher Viceconte, Esquire, Gibbons P.C., Wilmington,
Delaware; Jeffrey A. Schwab, Abelman, Frayne & Schwab,
New York, New York. Counsel for Defendants Joseph Apuzzo, Jr.
and Regal Trading, Inc.
NOREIKA, U.S. DISTRICT JUDGE.
Bernard Katz (“Katz” or “Plaintiff)
commenced this action on September 19, 2017. (D.I. 2). He
appears pro se and has paid the filing fee. Pending
are a motion to dismiss the Second Amended Complaint filed by
Defendants Joseph Apuzzo, Jr. (“Apuzzo”) and
Regal Trading, Inc. (“Regal”) (together
“Defendants”) pursuant to Fed.R.Civ.P. 12(b)(2)
and 12(b)(6), Plaintiffs letter/motion to proceed as sole
proprietor of Telesonic Packaging Corp.
(“Telesonic”), and Plaintiffs letter/motion to
expedite. (D.I. 41, 47, 51). For the following reasons, the
Court will dismiss Plaintiffs Second Amended Complaint for
lack of personal jurisdiction.
original Complaint, Katz described himself as president and
sole owner of a Delaware corporation with its principal
business offices and facilities located at 805 East
13thStreet, Wilmington, Delaware. (D.I. 2 ¶
1). In the Amended Complaint and Second Amended Complaint,
Katz describes himself as a “sole proprietor doing
business as with a trade style of Telesonic Packaging
Corp.”, its offices and facilities located at 805 East
13th Street, Wilmington, Delaware. (D.I. 11 ¶ 1; D.I. 40
¶ 1). The case revolves around Plaintiffs allegations
that Regal refused to take delivery of an open purchase order
for a product (i.e., single serve coffee pods)
manufactured and sold by Plaintiff after Regal claimed,
without expert proof, that the product was defective. The
Second Amended Complaint contains six counts as follows:
Count I - breach of contract; Count II - breach of good faith
and fair dealing; Count III - tortious interference; Count IV
- fraud; Count V - unjust enrichment; and Count VI -
violation of Uniform Trade Secrets Act.
move to dismiss: (1) for lack of personal jurisdiction; and
on the grounds that (2) Katz lacks standing to assert any of
the claims in the Second Amended Complaint; (3) Counts III,
IV, V, and VI fail to state claims upon which relief may be
granted; (4) the Second Amended Complaint fails to state a
claim against Apuzzo, individually; (5) the ad damnum clause
is violative of D. Del. LR 9.4(a); and (6) the Second Amended
Complaint fails to state a claim for punitive damages. (D.I.
concedes there is no personal jurisdiction over unserved
Defendants Sidney Abramowitz, William Garner, and Joseph
Apuzzo, III. (D.I. 45 at n.1). In addition, Plaintiff
concedes that the Second Amended Complaint fails to properly
state claims under Counts III, IV, V, and VI and that
punitive damages are not warranted, and agrees to amend the
ad damnum clause. (D.I. 45 ¶¶ 15, 16, 17, 19, 21,
to Rule 12(b)(2) of the Federal Rules of Civil Procedure, the
Court may dismiss a suit for lack of jurisdiction over the
person. When a defendant challenges a court's exercise of
personal jurisdiction under Rule 12(b)(2), “the
plaintiff bears the burden of establishing personal
jurisdiction by a preponderance of the evidence and must do
so by ‘establishing with reasonable particularity
sufficient contacts between the defendant and the forum
state.'” Turner v. Prince Georges Cty. Pub.
Sch., 694 Fed.Appx. 64, 66 (3d Cir. 2017) (quoting
Mellon Bank (East) PSFS, Nat'l Ass'n v.
Farino, 960 F.2d 1217, 1223 (3d Cir. 1992)). “To
meet this burden, the plaintiff must produce ‘sworn
affidavits or other competent evidence,' since a Rule
12(b)(2) motion ‘requires resolution of factual issues
outside of the pleadings.'” Brasure's Pest
Control, Inc. v. Air Cleaning Equip., Inc., No.
17-323-RGA-MPT, 2018 WL 337747, at *1 (D. Del. Jan. 9, 2018)
(quoting Time Share Vacation Club v. Atlantic Resorts,
Ltd., 735 F.2d 61, 67 n.9 (3d Cir. 1984)). “[W]hen
the court does not hold an evidentiary hearing on the motion
to dismiss, [however], 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.” Miller Yacht
Sales, Inc. v. Smith, 384 F.3d 93, 97 (3d Cir. 2004)
(citing Pinker v. Roche Holdings, Ltd., 292 F.3d 361
(3d Cir. 2002)); see also Bank Brussels Lambert v.
Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d
Cir. 1999) (“Where a ‘court [has chosen] not to
conduct a full-blown evidentiary hearing on the motion, the
plaintiff need make only a prima facie showing of
jurisdiction through its own affidavits and supporting
materials.'”) (quoting Marine Midland Bank,
N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981)).
requirements, one statutory and one constitutional, must be
satisfied for personal jurisdiction to exist over a
defendant. Bell Helicopter Textron, Inc. v. C & C
Helicopter Sales, Inc., 295 F.Supp.2d 400, 403 (D. Del.
2002). “First, a federal district court may assert
personal jurisdiction over a nonresident of the state in
which the court sits to the extent authorized by the law of
that state.” Id. (citing Fed.R.Civ.P. 4(e)).
The Court must, therefore, “determine whether there is
a statutory basis for jurisdiction under the Delaware
long-arm statute.” Id. (citing 10 Del. C.
§ 3104(c)). “Second, because the exercise of
jurisdiction must also comport with the Due Process Clause of
the United States Constitution, the Court must determine if
an exercise of jurisdiction violates [defendants']
constitutional right to due process.” Id.
(citing International Shoe Co. v. Washington, 326
U.S. 310 (1945)); see also IMO Industries, Inc. v.
Kiekert AG, 155 F.3d 254, 259 (3d Cir. 1998).
of Delaware's long-arm statute, 10 Del. C. §
3104(c)(1)-(4), a court may exercise personal jurisdiction
over a defendant when the defendant or its agent:
(1) Transacts any business or performs any character of work