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Katz v. Apuzzo

United States District Court, D. Delaware

July 17, 2019

BERNARD KATZ, Plaintiff,
JOSEPH APUZZO, JR., et al., Defendants.

          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.



         Plaintiff 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.[1]

         I. BACKGROUND

         In the 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.

         Defendants 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. 42).

         Plaintiff 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, 22).


         Pursuant 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)).

         Two 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).

         Under 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 or ...

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