EDWARD KING VS. MARSH VENTURES, LLC (L-0711-19, SOMERSET COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3718-19
EDWARD KING,
Plaintiff-Appellant,
v.
MARSH VENTURES, LLC
(d/b/a "G. MARSH VENTURES"),
GARRY J. MARSH, and GARRY
S. MARSH,
Defendants-Respondents.
______________________________
Argued September 1, 2021 – Decided September 15, 2021
Before Judges Geiger and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Somerset County, Docket No. L-0711-19.
Christopher P. Lenzo argued the cause for appellant
(Lenzo & Reis, LLC, attorneys; Christopher P. Lenzo,
of counsel and on the briefs).
John J. Zidziunas argued the cause for respondents
(John J. Zidziunas & Associates, LLC, attorneys; John
J. Zidziunas, of counsel and on the brief; Jeff V. Fucci,
on the brief).
PER CURIAM
Plaintiff Edward King filed this action against defendants Marsh
Ventures, LLC, Garry J. Marsh (Marsh Senior), and Garry S. Marsh (Marsh
Junior), claiming they engaged in consumer fraud, tortious interference with
prospective economic advantage, and invasion of privacy. He appeals from an
April 24, 2020 order denying his motion for reconsideration, dismissing his
complaint with prejudice for lack of personal jurisdiction in New Jersey, and
denying his application for attorney's fees. We affirm as modified herein.
We derive the following facts from plaintiff's complaint. Marsh Ventures
is an executive placement firm and Florida limited liability company with
offices in Boca Raton, Florida. Marsh Senior, the president and co-owner of
March Ventures, resides in Florida. His son, Marsh Junior, is a recruiter, and
co-owner of Marsh Ventures. He too resides in Florida.
Plaintiff was employed as a regional sales director by Zumtobel Lighting,
Inc. (Zumtobel) from approximately August 2018 to March 25, 2019, when he
was terminated. He worked from his home in Skillman, New Jersey.
On March 21, 2019, plaintiff sent Marsh Senior a message through
LinkedIn, stating he was "potentially looking to make a move in the near future
and wanted to see what jobs are currently out there." On the morning of March
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25, Zumtobel Chief Executive Officer Rolland Mok called plaintiff and
informed him that he was aware plaintiff was working with defendants to find
another job. Mok told plaintiff he had seen the LinkedIn message that plaintiff
sent Marsh Senior. Later that same day, Zumtobel terminated plaintiff.
Plaintiff claims he "sent his LinkedIn message to . . . Marsh Senior in
confidence" and "reasonably expected that defendants would not disclose that
private communication to his current employer." During a subsequent telephone
call with plaintiff, "Marsh Senior blamed the communication to Zumtobel on his
son, . . . Marsh Junior." In a March 27, 2019 e-mail, plaintiff told Marsh Senior
"that he had lost his job at Zumtobel 'based off sending [the LinkedIn] to you.'"
Marsh Senior did not reply to that e-mail to dispute that defendants caused
Zumtobel to terminate his employment.
Marsh Ventures' website is addressed to job seekers and states it "fill[s]
positions globally – focused on the Americas and Europe with broader Middle
East and Asia capabilities."
Plaintiff filed a three-count complaint against defendants alleging
violation of the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20 (count one);
tortious interference with prospective economic advantage (count two); and
invasion of privacy by public disclosure of private facts (count three).
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In lieu of filing an answer, defendants moved to dismiss the complaint for
failure to state a claim pursuant to Rule 4:6-2(e) or, in the alternative, for lack
of personal jurisdiction pursuant to Rule 4:6-2(b). The motion was supported
by affidavits of Marsh Senior and William Simoni.
Marsh Senior averred that plaintiff "never hired me or my firm to provide
services to him." He never met plaintiff in person and did not have any form of
contact with plaintiff prior to plaintiff's LinkedIn message. Marsh Junior never
had contact with plaintiff "via phone, e-mail, message, or otherwise" and was
not an employee of Marsh Ventures at any time relevant to this matter.
Simoni averred that he was employed by Zumtobel as its Vice President
and General Manager of Sales for the Americas. "Zumtobel has a business
relationship with [d]efendants, . . . whom Zumtobel uses, from time to time, to
locate suitable, potential employees for Zumtobel." Plaintiff was an at-will
employee who reported to and was supervised by Simoni. "In early 2019,
[Simoni] became unhappy with [plaintiff's] performance." During a February
meeting, Simoni and Kenneth Breitman, Zumtobel's Human Resources Director,
discussed plaintiff's performance and "agreed [plaintiff] should be terminated
for performance reasons."
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Plaintiff filed four opposing certifications. In his initial certification, he
reiterated the allegations of his complaint. In his sur-reply certification, plaintiff
provided a copy of a text message exchange with Steven Cooper, his former
Zumtobel supervisor. On the morning of March 25, 2019, plaintiff informed
Cooper that Marsh Senior had disclosed to Mok and Breitman that plaintiff was
looking for another job. Later in the text message exchange, plaintiff advised
Cooper that he "had just been fired."
Cooper certified that he worked with plaintiff at Zumtobel for about six
years, during which plaintiff's "work performance was exemplary . . . ." Cooper
successfully recommended plaintiff for a promotion to Regional Sales Director,
effective in January 2019. Cooper stated that he "never heard Bill Simoni say
anything negative about [plaintiff's] performance."
In addition, James Coles certified that he hired plaintiff and worked with
him for about six years at Zumtobel. Plaintiff reported indirectly to Coles, who
stated that plaintiff "had an excellent job performance record." Coles confirmed
that Cooper recommended plaintiff for the promotion to Regional Sales Director
in December 2018.
The motion judge issued a January 6, 2020 order and lengthy oral decision
that: (1) denied defendants' motion to dismiss the complaint for failure to state
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a claim under Rule 4:6-2(e); (2) denied defendants' request for an award of
sanctions; (3) determined that the court lacked specific personal jurisdiction
over defendants; and (4) allowed limited written discovery to determine whether
the court had general jurisdiction over defendants.
Because the judge denied the motion to dismiss the complaint for failure
to state a claim, we focus upon his findings relating to personal jurisdiction. The
judge found that plaintiff contacted Marsh Ventures through a March 21, 2019
message on LinkedIn, in which he stated that "he was potentially looking to
make a move in the near future and wanted to see what jobs were currently out
there." Four days later he was terminated by Zumtobel. Two days after his
termination, Marsh Senior contacted plaintiff requesting more information from
him regarding his job search. "Plaintiff allege[d] that the defendants passed
along his message to Zumtobel about potentially seeking other employment[,]
. . . which led to his termination. Defendants contend that prior to the LinkedIn
message being sent, Zumtobel had plans to terminate the plaintiff for
performance reasons."
The judge determined that Zumtobel, which is headquartered in Highland,
New York, is a wholly owned subsidiary of The Zumtobel Group, an Austrian
company. Plaintiff worked from his home in New Jersey. Marsh Ventures, on
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the other hand, is essentially a two-man shop, located in Florida. Both Marsh
Senior and Marsh Junior, who own the company, reside in Florida.
The judge concluded that the motion should be considered a motion for
summary judgment as the moving papers went well beyond the four corners of
the complaint. See R. 4:6-2 (stating that if "matters outside the pleading are
presented and not excluded by the court, the motion shall be treated as one for
summary judgment and disposed of as provided by R. 4:46"). The judge noted
that no substantive discovery had been exchanged and found that there were
material facts at issue precluding summary judgment for failure to state a claim.
The judge then examined whether defendants had sufficient contacts with
the forum state to create personal jurisdiction. He explained that the defendants
must have sufficient minimum contacts with the forum state that exercising
jurisdiction "does not offend the traditional notions of fair play and substantial
justice." Defendants "must have contact with this state that is so continuous and
substantial as to justify subjecting the defendant to jurisdiction." General
personal jurisdiction "require[s] extensive contact between the defendant and
the forum [state]."
Relying heavily on Baanyan Software Servs., Inc. v. Kuncha, 433 N.J.
Super. 466 (App. Div. 2013), the judge found "defendant[s'] contacts with New
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Jersey were attenuated at best. They [were] not continuous and systematic so as
to establish general jurisdiction," being "more akin to random gratuitous
contacts rather than purposeful availment of the benefits of New Jersey law and
hence are likewise insufficient to establish specific jurisdiction."
The judge rejected defendants' request for sanctions, finding it
substantively meritless as plaintiff's claims were not frivolous. In addition, the
application was procedurally deficient because defendants did not serve the
required frivolous claims letter on plaintiff.
Discovery ensued in accordance with the order. Plaintiff obtained
documents by subpoena from RAB Lighting and Amerlux Lighting, showing
that defendants had done business with both companies and that defendants had
offered RAB Lighting a job candidate residing in New Jersey. RAB Lighting's
website showed that it is headquartered in New Jersey. Amerlux Lighting's
website showed that its only office in the United States was in New Jersey.
Defendants' answers to interrogatories certified that: (1) defendants had
never owned any interest in any property located in New Jersey; (2) Marsh
Ventures had never maintained an office in New Jersey; (3) Marsh Senior and
Marsh Junior had never resided in New Jersey; (4) defendants had never
registered to do business in New Jersey; (5) defendants had never been licensed
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by any governmental body to work or do business in New Jersey; and (6)
defendants had never filed any state tax returns in New Jersey.
As to any employers headquartered in New Jersey for whom defendants
have recruited or attempted to recruit employees, defendants answered:
(i) Defendants agreed with Amerlux Lighting to recruit
a National Accounts Manager for the West Coast in
2016, which placement never worked out and which
contractual arrangement terminated due to lapse; (ii)
Defendants worked with RAB Lighting in or around
2016 submitting [two] candidates . . . [that] did not
result in placement of either; (iii) Defendants recruited
[a candidate] for RAB Lighting in or around October
2016 as Specification Sales manager in the Chicago
Office, resulting in placement; (iii) Defendants
recruited [another candidate] for RAB Lighting for
RSM West Coast Los Angeles in or around January
2017, resulting in placement; (iv) Defendant recruited
[a candidate] for Kreon in or around October 2017 as
projects Engineer in the Bethpage, New York Office,
resulting in placement; and (v) Defendants recruited [a
candidate] for Kreon on or about April 8, 2019 as
Mechanical Engineer in East Rutherford, New Jersey,
resulting in placement.
In addition, Marsh Junior "traveled to New Jersey on or about November 9, 2019
to meet with a hiring authority from Kreon." Defendants further answered that
they had not placed or attempted to place any job candidate with Zumtobel as a
replacement for plaintiff or to take over any of plaintiff's job duties.
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On March 11, 2020, plaintiff moved for reconsideration of whether the
court had specific personal jurisdiction over defendants and for an award of
attorney's fees as a discovery sanction. The judge issued an April 24, 2020 order
and oral decision that: (1) denied reconsideration; (2) dismissed the complaint
with prejudice for lack of personal jurisdiction; and (3) denied plaintiff's request
for an award of attorney's fees.
In his oral decision, the judge found that defendants are a recruiting
business that focuses on the commercial lighting industry. As for defendants'
contacts with New Jersey, the judge found they placed candidates with a New
Jersey company and earned a $50,000 commission. One of those candidates
resided in New Jersey. Defendants performed a search for a second New Jersey
company that "did not come to fruition with any hiring." Defendants placed two
employees with a third New Jersey company. One of the defendants actually
"traveled to New Jersey in connection with that work."
The judge reiterated that plaintiff, who resides in New Jersey, initiated the
contact with defendants, located in Florida. He explained that "[d]efendant[s]
[did] not reach out to plaintiff in any [fashion] until after the conduct at issue
[had] occurred." Therefore, "the cause of action [did not] arise[] directly out of
defendant[s'] contact with [the] foreign state." The judge concluded that there
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was "no purposeful conduct of the defendant[s] that is directed toward New
Jersey. The first contact . . . between the parties was . . . the unilateral activity
of the plaintiff," and defendants only communicated with plaintiff "after the
actionable event . . . ha[d] already taken place." After surveying the case law,
the judge found no factual basis for specific personal jurisdiction and denied
reconsideration of his prior decision. This appeal followed.
Plaintiff raises a single point for our consideration:
THE SUPERIOR COURT OF NEW JERSEY HAS
SPECIFIC PERSONAL JURISDICTION OVER
DEFENDANTS.
"A defendant may move to dismiss a complaint on the ground of 'lack of
jurisdiction over the person[.]'" Rippon v. Smigel, 449 N.J. Super. 344, 358
(App. Div. 2017) (alteration in original) (quoting R. 4:6-2(b)). The issue of
personal jurisdiction "is a question of law." Ibid. (citing Mastondrea v.
Occidental Hotels Mgmt. S.A., 391 N.J. Super. 261, 268 (App. Div. 2007)).
Therefore, "[o]ur review is . . . de novo, while our review of the 'court's factual
findings with respect to jurisdiction' is only to determine if those findings are
supported by substantial, credible evidence in the record." Ibid. (quoting
Mastondrea, 391 N.J. Super. at 268).
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Here, the trial court determined that it lacked specific personal jurisdiction
on defendants' motion to dismiss prior to discovery. We therefore assume that
plaintiffs can establish their substantive allegations and assertions. 1 Baanyan
Software Servs., 433 N.J. Super. at 476 (citing NCP Litig. Tr. v. KPMG LLP,
187 N.J. 353, 365-66 (2006)).
"[T]he Due Process Clause of the Fourteenth Amendment limits the
personal jurisdiction of state courts over nonresident civil defendants." Jardim
v. Overley, 461 N.J. Super. 367, 375 (App. Div. 2019) (citing Pennoyer v. Neff,
95 U.S. 714, 733 (1877)). Our "courts may exercise personal jurisdiction over
a non-resident defendant 'consistent with due process of law.'" Baanyan
Software Servs., 433 N.J. Super. at 473 (quoting R. 4:4-4(e)). Therefore, "a
nonresident defendant must have certain 'minimum contacts' with the forum
state, 'such that the maintenance of the suit does not offend "traditional notions
of fair play and substantial justice."'" Jardim, 461 N.J. Super. at 375 (quoting
Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). "[P]laintiff bears the
burden of showing sufficient facts to establish jurisdiction." Id. at 375 (citing
Blakey v. Cont'l Airlines, Inc., 164 N.J. 38, 71 (2000)). Applying these
1
The discovery permitted by the trial court related to general jurisdiction. The
court had already determined that it lacked specific jurisdiction.
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principles, "we consider whether [plaintiff] has met [his] burden of establishing
a prima facie basis for exercising [specific] personal jurisdiction over
defendant[s]." Baanyan Software Servs., 433 N.J. Super. at 476. "[T]he fact-
specific nature of the jurisdictional assessment . . . must be conducted on 'a case-
by-case basis.'" Jardim, 461 N.J. Super. at 377 (quoting Bayway Ref. Co., 333
N.J. Super. at 429). The court must consider "the burden on the defendant, the
interests of the forum State and the plaintiff's interest in obtaining relief." Asahi
Metal Indus., 480 U.S. at 113.
The Supreme Court has recognized both "'general' (sometimes called 'all-
purpose') jurisdiction and 'specific' (sometimes called 'case-linked')
jurisdiction." Bristol-Myers Squibb Co. v. Super. Ct. of Cal., ___ U.S. ___, ___,
137 S. Ct. 1773, 1780 (2017) (citing Goodyear Dunlop Tires Operations, S.A.
v. Brown, 564 U.S. 915, 919 (2011)). Here, plaintiff does not contend that
Marsh Ventures, which is located in Florida, and Marsh Senior and Marsh
Junior, who both reside in Florida, are amenable to general jurisdiction in the
state courts of New Jersey. Instead, we must examine whether defendants'
involvement with plaintiff creates specific jurisdiction over them in this State.
As we explained in Baanyan Software Servs.:
Specific jurisdiction is available when the "cause
of action arises directly out of the defendant's contacts
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with the forum state." Waste Mgmt., Inc. v. The
Admiral Ins. Co., 138 N.J. 106, 119 (1994). In this
context, a "minimum contacts inquiry must focus on the
relationship among the defendant, the forum, and the
litigation." Lebel v. Everglades Marina, Inc., 115 N.J.
317, 323 (1989). The minimum contacts requirement
is satisfied "so long as the contacts expressly resulted
from the defendant's purposeful conduct and not the
unilateral activities of the plaintiff." Ibid. (citing
World-Wide Volkswagen Corp. v. Woodson, 444 U.S.
286, 297-98 (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].'" Bayway Ref. Co, v. State Utils., Inc.,
333 N.J. Super. 420, 429 (App. Div. 2000) (quoting
World-Wide Volkswagen Corp., 444 U.S. at 297).
Stated otherwise, when the defendant is not
present in the forum state, "it is essential that there be
some act by which the defendant purposefully avails
herself of the privilege of conducting activities within
the forum state, thus invoking the benefit and
protection of its laws.'" Waste Mgmt., 138 N.J. at 120(quoting Hanson v. Denckla, 357 U.S. 235, 253
(1958)). This "purposeful availment" requirement
ensures that an out-of-state defendant will not be haled
into court based on "random, fortuitous or attenuated
contacts or as a result of the unilateral activity of some
other party." Id. at 121; see also Blakey, 164 N.J. at 67.
[433 N.J. Super. at 474-75 (alteration in original).]
New Jersey courts have "focused upon whether the contacts in question
'resulted from the defendant's purposeful conduct and not the unilateral activities
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of the plaintiff.'" Jardim, 461 N.J. Super. at 377-78 (quoting Lebel, 115 N.J. at
323). So too has the United States Supreme Court. "The plaintiff's claims . . .
'must arise out of or relate to the defendant's contacts' with forum." Ford Motor
Co. v. Mont. Eighth Jud. Dist. Ct., ___ U.S. ___, 141 S. Ct. 1017, 1020 (2021)
(quoting Bristol-Myers, 137 S. Ct. at 1780). "[T]here must be 'an affiliation
between the forum and the underlying controversy, principally, [an] activity or
an occurrence that takes place in the forum State and is therefore subject to the
State's regulation.'" Bristol-Myers, 137 S. Ct. at 1781 (quoting Goodyear, 564
U.S. at 919).
"In the context of specific jurisdiction, the minimum contacts inquiry must
focus on 'the relationship among the defendant, the forum, and the litigation.'"
Lebel v. Everglades Marina, Inc., 115 N.J. 317, 323 (1989) (quoting Shaffer v.
Heitner, 433 U.S. 186, 204 (1977)). "[W]hen the cause of action arises directly
out of a defendant's contacts with the forum state, the state may exercise
'specific' jurisdiction over a defendant who has 'minimum contacts' with the
state." Rippon, 449 N.J. Super. at 359 (citing Lebel, 115 N.J. at 322). It is this
requirement that plaintiff cannot meet.
We have previously held that "telephonic and electronic communications
with individuals and entities located in New Jersey alone, are insufficient
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minimum contacts to establish personal jurisdiction over a defendant." Baanyan
Software Servs., 433 N.J. Super. at 477 (citing Pfundstein v. Omnicom Grp.,
Inc., 285 N.J. Super. 245, 252 (App. Div. 1995)). The single, unsolicited
LinkedIn electronic communication sent by plaintiff did not establish specific
personal jurisdiction. Unlike in Lebel, defendants did not engage in a course of
communications over a long period of time to induce plaintiff to utilize their
services. See Jardim, 461 N.J. Super. at 381. Merely maintaining a non-
interactive website, without more, is insufficient to establish personal
jurisdiction. Jennings v. AC Hydraulic A/S, 383 F.3d 546, 550 (7th Cir. 2004).
There is no evidence in the record that that defendants sought out being
retained by plaintiff as a job recruiter through advertising or marketing in New
Jersey. Moreover, plaintiff did not enter into an oral or written contract with
defendants or remit any payment to defendants. Indeed, defendants did not even
respond to plaintiff's LinkedIn message prior to disclosing to plaintiff's
employer that plaintiff was looking for a new job.
Additionally, defendants did not participate in finding a replacement for
plaintiff. Any alleged improper disclosure of confidential information was
communicated by defendants in Florida to a company located in New York.
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We recognize that defendants were aware that plaintiff resided in New
Jersey and that "[t]here is no requirement that the defendant ever be physically
present in the forum state." Baanyan Software Servs., 433 N.J. Super. at 475.
However, "mere awareness of [plaintiff's] domicile is not the equivalent of
purposeful availment." Jardim, 461 N.J. Super. at 383. Defendants did not
target job-seeking clients in New Jersey. See ibid. We conclude that defendants'
contacts with New Jersey are attenuated at best.
In sum, the judge's factual findings with respect to jurisdiction are
supported by substantial, credible evidence in the record and his determination
that the court lacked specific personal jurisdiction in this case was correct.
Accordingly, the denial of plaintiff's motion for reconsideration was likewise
appropriate. See Cummings v. Bahr, 295 N.J. Super. 374, 384-85 (App. Div.
1996) (recognizing that reconsideration is within the sound discretion of the trial
court and should be utilized only when the court's decision is based on plainly
incorrect reasoning or the court failed to consider material evidence). We
therefore affirm the dismissal of plaintiff's complaint but modify the dismissal
from "with prejudice" to "without prejudice," thereby enabling plaintiff the
opportunity to bring a timely suit against defendants in Florida if he elects to do
so. See Watkins v. Resorts Int'l Hotel & Casino, 124 N.J. 398, 415-16 (1991).
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Affirmed as modified.
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