Babock v. Anthony's LLC et al

Filing 55

MEMORANDUM OPINION & ORDER granting 33 Motion to Dismiss for Lack of Jurisdiction; granting 33 Motion to Dismiss for Failure to State a Claim; defendant Geller shall be dismissed from the action. Signed by Senior Judge Thomas B. Russell on 11/13/2013. cc:counsel (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:12-CV-000307-R
CHRISTOPHER BABCOCK

Plaintiff

v.
ANTHONY’S LLC, a New Jersey limited
liability company

Defendants

and MARC GUITMAN
and ROBERT GELLER

MEMORANDUM OPINION AND ORDER
This matter is before the Court upon Defendants Anthony’s, LLC, Marc
Guitman i/s/a Marc Guitman, and Robert Geller’s Motion to Dismiss as to
Defendant Robert Geller pursuant to Federal Rule of Civil Procedure 9, 12(b)(2),
and 12(b)(6). (Docket No. 33.) Plaintiff Christopher Babcock has responded,
(Docket No. 42), and Defendants have replied. (Docket No. 46.) This matter is
now ripe for adjudication. For the reasons that follow, Defendants’ Motion to
Dismiss will be GRANTED.
BACKGROUND
This action involves eleven separate alleged contracts entered into by
Plaintiff and Defendant Anthony’s, LLC to purchase certain coins between
November 2008 to October 2010.

These contracts allegedly originated from

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either Plaintiff being the high bidder on “e-Bay” or through direct offers for sale
from Defendants by either telephone or email solicitation . Over the course of the
parties’ relationship, Plaintiff alleges he repeatedly requested reassurance s that
the coins sold to him by Defendants were authentic. Plaintiff states Defendants
repeatedly gave assurances that the coins sold were authentic.
On February 11, 2013, this Court permitted Plaintiff ’s First Amended
Complaint (“Complaint”) which added Robert Geller (“Geller”) as a defendant.
Geller is a manager at Anthony’s, LLC. (Docket No. 33 -2, Page 1.) Paragraph 2
of the Complaint explicitly states “Defendants” as used in the Complaint shall
mean all of the defendants, thereby making all accusations and fact ual assertions
about “Defendants” applicable to Geller.

Plaintiff’s Affidavit states Geller

represented to Plaintiff in two separate telephone calls in 2008 and 2010 that he
was “purchasing genuine coins that were not counterfeit” and he was receiving
the correct weight of coins.

(Docket No. 42-1, Page 1-2.) Additionally, the

Affidavit states in the 2010 telephone call Geller encouraged Plaintiff to continue
purchasing coins from Defendants and attempted to resolve a settlement relating
to the alleged counterfeit and under-weight coins sold to him. (Docket No. 42-1,
Page 2.)
Geller’s Affidavit states that he did not participate in the listing of goods
purchase by Plaintiff or negotiations with Plaintiff.

(Docket No. 33 -2.)

He

states he communicated with Plaintiff only once—in 2008—during the period
when he was making purchases from Anthony’s and that was when he answered

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the phone when Plaintiff called with questions about certain lots of coins offered
by Anthony’s. Id. Geller states that “[o]ther than that single phone call, my only
involvement with Plaintiff was, as a manager of Anthony’s, to assist Marc
Guitmann, an Anthony’s employee, in his attempts to resolve Plaintiff ’s
complaints amicably.” Id. Finally, Geller states he is a New Jersey resident, has
never traveled to Kentucky, and to his knowledge has never solicited business
from anyone in Kentucky or personally communicated with any Kentucky
residents in the course of doing business. Id.
Defendants make three separate arguments for why all the claims or some
of the claims against Defendant Geller should be dismissed. First, Defendants
argue the Complaint lacks allegations of sufficient contacts to support personal
jurisdiction as to claims against Geller. Second, Defendants allege the addition
of Geller as a defendant is improper because Plaintiff has alleged no specific
conduct whatsoever that should make Geller personally liable for the acts alleged
in the complaint. (Docket No. 33-3, Page 1.) Third, even if the Court preserves
other claims against Geller, Defendants argue the claims sounding in fraud are
not pled with sufficient particularity and should be dismissed. (Docket No. 33 -3,
Page 2.)
DISCUSSION
Personal Jurisdiction As To Defendant Geller
Defendants argue that the Complaint lacks allegations of sufficient
contacts to support personal jurisdiction as to the newly amended claims against

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Geller.

The Sixth Circuit recognizes that personal jurisdiction may be either

“specific” or “general,” depending on the nature of the defendant’s contacts with
the forum state. See, e.g., Gerber v. Riordan, 649 F.3d 514, 517 (6th Cir. 2011).
In his Complaint, Plaintiff does not specify whether he believes personal
jurisdiction is specific or general.

Therefore, the Court will consider both

possibilities.
I.

General Jurisdiction Does Not Exist
“General jurisdiction is proper only where a defendant’s contacts with the

forum state are of such a continuous and systematic nature that the state may
exercise personal jurisdiction over the defendant even if the action is unrelated to
the defendant’s contacts with the state.”

Gerber, 649 F.3d at 517 (quoting

Calphalon Corp. v. Rowlette, 228 F.3d 718, 721 (6th Cir. 2000)). The Supreme
Court has held that a nonresident defendant who lacked a place of business and
had never been licensed to do business in the forum state lacked sufficient
contacts to support the exercise of general jurisdiction.

See Helicopteros

Nacionales de Colom., S.A. v. Hall, 466 U.S. 408, 416-18 (1984).

In

Helicopteros, the Court found that a number of contacts, including (1) sendi ng a
corporate officer to the forum to negotiate contracts, (2) accepting checks written
on a forum bank, (3) purchasing a substantial sum of equipment and services
from a forum state business, and (4) sending personnel to a forum state business
for training—even when taken together—were insufficient to support the
exercise of general jurisdiction. Id. By contract, the Court has found general

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jurisdiction where a nonresident corporate officer maintained an office and held
meetings in the forum state, supervised corporate business while situated in the
forum state, distributed payroll checks drawn on a forum bank account, and
engaged a forum bank in the corporation’s business.

See Perkins v. Benguet

Consol. Mining Co., 342 U.S. 437, 448 (1952). The Sixth Circuit follows this
reasoning by declining to find general jurisdiction where a plaintiff “has not
alleged that [the defendant] has an office in [the forum state], is licensed to do
business there, has [a forum state] bank account, or directs its business
operations from [the forum state].” Bird v. Parsons, 289 F.3d 865 873 (6th Cir.
2002).
In the instant case, Plaintiff does not allege that Defendant Geller
maintains an office in Kentucky, is licensed to do busines s in Kentucky,
maintains a bank account in Kentucky, or directed any operations from within
Kentucky. It does not appear Geller has ever even been to Kentucky. Indeed , it
appears that Geller has no contacts with Kentucky beyond two alleged isolated
communications over the telephone in 2008 and 2010, during which Geller would
have been in New Jersey.

Accordingly, Plaintiff has not demonstrated that

Geller’s contacts with Kentucky are sufficiently continuous and systematic as to
support the exercise of general personal jurisdiction.
II.

Specific Jurisdiction
In order to determine whether specific personal jurisdiction exists, a

federal court applies the law of the forum in which it sits, subject to the

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requirements of constitutional due process. Kerry Steel, Inc. v. Paragon Indus.,
Inc., 106 F.3d 147, 149 (6th Cir. 1997). That is, “[a] federal court's exercise of
personal jurisdiction in a diversity of citizenship case must be both (1)
authorized by the law of the state in which it sits, and (2) in accordance with the
Due Process Clause of the Fourteenth Amendment.”

Bird, 289 F.3d at 888

(citing Reynolds v. Int’l Amateur Athletic Fed’n, 23 F.3d 1110, 1115 (6th Cir.
1994)).
i. The Kentucky Long-Arm Statute
As an initial matter, although courts previously have held that Kentucky’s
long-arm statute, Ky. Rev. Stat. § 454.210, extends to the outer reaches of due
process, see, e.g., Morris Aviation, LLC v. Diamond Aircraft Indus., Inc., 730 F.
Supp. 2d 683, 689 (W.D. Ky. 2010), the Kentucky Supreme Court recently
clarified that the statute is not, per se, coextensive with the limits of federal due
process. Caesars Riverboat Casino, LLC v. Beach, 336 SW.3d 51, 56-57 (Ky.
2011). Accordingly, for personal jurisdiction to be proper: (1) Kentucky’s longarm statute, § 454.210, must be satisfied; and (2) the exercise of jurisdiction
must comport with due process. Therefore, this Court first turns to the question of
whether this Court can exercise personal jurisdiction over Defendants under the
Kentucky long-arm statute.
KRS 454.210(2)(a), Kentucky’s long-arm statute, states:
(2)(a) A court may exercise personal jurisdiction over a person who
acts directly or by an agent, as to a claim arising from the person’s:
1. Transacting any business in this Commonwealth

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2. Contracting to supply services or goods in this
Commonwealth;
3. Causing tortious injury by an act or omission in this
Commonwealth;
4. Causing tortious injury in this Commonwealth by an act or
omission outside this Commonwealth if he regularly does or
solicits business, or engages in any other persistent course of
conduct, or derives substantial revenue from goods used or
consumed or services rendered in this Commonwealth, provided
that the tortious injury occurring in this Commonwealth arises
out of the doing or soliciting of business or a persistent course of
conduct or derivation of substantial revenue within the
Commonwealth;
5. Causing injury in this Commonwealth to any person by breach
of warranty expressly or impliedly made in the sale of goods
outside this Commonwealth when the seller knew such person
would use, consume, or be affected by, the goods in this
Commonwealth, if he also regularly does or solicits business, or
engages in any other persistent course of conduct, or derives
substantial revenue from goods used or consumed or services
rendered in this Commonwealth;
6. Having an interest in, using, or possessing real property in this
Commonwealth, providing the claim arises from the interest in,
use of, or possession of the real property, provided, however, that
such in personam jurisdiction shall not be imposed on a
nonresident who did not himself voluntarily institute the
relationship, and did not knowingly perform, or fail to perform,
the act or acts upon which jurisdiction is predicated;
7. Contracting to insure any person, property, or risk located
within this Commonwealth at the time of contracting;
8. Committing sexual intercourse in this state which intercourse
causes the birth of a child when:
a. The father or mother or both are domiciled in this state;
b. There is a repeated pattern of intercourse between the father
and mother in this state; or
c. Said intercourse is a tort or a crime in this state; or
9. Making a telephone solicitation, as defined in KRS 367.46951,
into the Commonwealth.
Ky. Rev. Stat. § 454.210. Because Plaintiff mistakenly pled that “the limits of
personal jurisdiction under Kentucky’s Long-Arm Statute are coextensive with
the boundaries of the due process clause,” Plaintiff has not pointed to which of

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the nine provisions serve as a basis for personal jurisdiction. (Docket No. 42,
Page 6.) Therefore, the Court will look at each individual provision to determine
if one of them provides a basis for personal jurisdiction. 1

In interpreting

§ 454.210(2)(a), the Kentucky Supreme Court instructs: “[w]hile we believe it fair to say
that these provisions should be liberally construed in favor of long-arm jurisdiction, their
limits upon jurisdiction must be observed as defined.” Caesars Riverboat Casino, 336
S.W.3d at 56.
1. Provision 1 – “Transacting any business in this Commonwealth”
As the Kentucky Supreme Court only recently stated that the Kentucky
long-arm statute must be analyzed separately from due process, there is little
precedent interpreting the precise meaning of the phrase “transacting business”
as used in § 454.210(2)(a)(1). Nonetheless, the Court finds that Geller did not
transact business in Kentucky within the meaning of Ky. Rev. Stat.
454.210(2)(a)(1). The only contractual relationship alleged in the complaint is
between Plaintiff and Anthony’s, LLC. 2 Allegations against Geller all stem from
two isolated phone calls—which do not even appear to have been initiated by
Geller—in which Geller allegedly reassured Plaintiff the coins were genuine and
encouraged him to make another purchase. The Court agrees with Defendant that
“[s]imply answering the phone at [Geller’s] place of employment is insufficient

The Court notes that Defendants’ reply brief focused on the first two provisions of § 454.210(2)(a)(1).
Although this opinion focuses exclusively on Defendant Geller, the Court notes there is no indication that
Anthony’s, LLC actively promoted the sale of its products to Kentucky residents.
1
2

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to deem that Mr. Geller, individually, was engaging in any type of activity that
can satisfy the first prong.” (Docket No. 46, Page 6.)
The Court does not believe that these allegations amount to “transacting
of business.” See, e.g., Thompson v. Koko, 2012 WL 374054, at *1-2 (W.D. Ky.
Feb. 3, 2012) (finding that out-of-state defendant’s actions of sending emails and
letters, confirming receipt of a wire transfer, and sending account statements to
the plaintiff in Kentucky did not amount to transacting business in Kentucky);
Mueller v. Heath, 2013 WL 4511898, at *3 (W.D. Ky. Aug. 23, 2013) (finding, in
a case alleging fraudulent inducement to invest in a security alarm company, that
the defendants had not transacted business in Kentucky despite that the plaintiffs
“may have wired funds from Kentucky [to an out -of-state entity] and suffered
injury in Kentucky”); Ford v. RDI/Caesars Riverboat Casino, LLC, 503 F. Supp.
2d 839, 841-43 (W.D. Ky. 2007) (finding that the defendant transacted business
in Kentucky where roughly half of its customers were from Kentucky, it derived
substantial revenue—in excess of $109 million—from Kentucky residents, it
advertised extensively in Kentucky, and it actively sponsored events in Kentucky
and made considerable contributions to Kentucky charities); Am. Trade Alliance,
Inc. v. S. Cross Trading, 2011 WL 112439, at *2 (Ky. Ct. App. Jan. 14, 2011)
(finding that the defendant transacted business in Kentucky where it contracted
to do business in Kentucky, accepted orders from and shipped goods to a
Kentucky buyer, and actively promoted the sale of its products to Kentucky
residents). Accordingly, the Court finds that Defendant Geller's conduct is not

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encompassed within provision one of § 454.210(2)(a) for “transacting any
business in this Commonwealth.”
2. Provision 2 – “Contracting to supply services or goods in this
Commonwealth”
The alleged behavior of Geller would not be encompassed in provision
two because there is no indication that Geller actually contracted “to supply
services or goods in this Commonwealth.” Any reference to such contracting has
always been with respect to Anthony’s, LLC and not Geller:
a. On November 2, 2008, Plaintiff was the highest bidder on a
lot of coins auctioned by Anthony’s on ebay and described by
Anthony’s as “World Silver and old coin 88 pound lot.”
b. On November 20, 2008 Plaintiff and Anthony’s entered
into a contract for the purchase of certain coins . . . (emphasis
added.)
(Docket No. 1 Complaint, Page 5.)

Hinners is not inconsistent with this

conclusion. Hinners v. Robey, 336 S.W.3d 891, 895-96 (Ky. 2011). In that case,
the Kentucky Supreme Court found that Robey—who posted an eBay listing for a
vehicle and subsequently completed the transaction with a Kentucky resident
who was the high bidder in Missouri—had contracted to “supply services or
goods in this Commonwealth.” Id. at 896. In this case, there is no indication or
allegation that Geller made the eBay listing or entered into a contract to sell the
coins. At all times Geller was merely acting as an agent for Anthony’s, LLC.
Accordingly, Geller would not have been “contracting to supply services or
goods in this Commonwealth” as required under provision two of §
454.210(2)(a).

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3. Provision Three – “Causing tortious injury by an act or omission
in this Commonwealth”
The alleged behavior of Geller would not be encompassed in provision
three because the alleged tortious act or omission would not have occurred “in
this Commonwealth.” It is undisputed that Defendant Geller was at all relevant
times located in New Jersey and the only alleged tortious actions were
communications over the phone.

Therefore, any tortious act would not have

occurred “in this Commonwealth.”
4. Provision Four and Five - Requiring that a person over whom
jurisdiction is sought “regularly does or solicits business, or
engages in any other persistent course of conduct, or derives
substantial revenue from goods used or consumed or services
rendered in this Commonwealth . . .”
Provision four requires that a person for who jurisdiction is sought
“regularly does or solicits business, or engages in any other persistent course of
conduct, or derives substantial revenue from goods used or consumed or services
rendered in this Commonwealth . . .”

Geller’s alleged actions would not be

encompassed in this provision. Plaintiff has not alleged that Geller regularly
solicits businesses, engages in a persistent course or conduct, or derives
substantial revenue in Kentucky. On the contrary, Plaintiff has alleged only two
isolated phone calls in which communications with Geller took place.
Provision five has the same “regularity/persistent conduct/substantial
revenue” requirement as provision four. For the same reasons, provision five
would also not provide a basis for jurisdiction as to Geller.

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Provisions six

through eight would plainly not apply to provide jurisdiction as to Geller and any
suggestion otherwise would be frivolous.
5. Provision Nine – “Telephone Solicitation”
Geller’s alleged actions would not be a “telephone solicitation” as
referenced in provision nine. A “telephone solicitation” is defined in KRS §
367.46951:
(1) “Telephone solicitation” means:
(a) A live or recorded communication sent by a telephone or
message sent by a facsimile machine to a residential, mobile, or
telephone paging device telephone number, including a call
made by an automatic dialing or recorded message device, for
the purpose of:
1. Soliciting a sale of consumer goods or services, offering
an investment, business, or employment opportunity, or
offering a consumer loan to the person called;
2. Obtaining information that will or may be used for the
solicitation of a sale of consumer goods or services, the
offering of an investment, business, or employment
opportunity, or the offering of a consumer loan to the
person called;
3. Offering the person called a prize, gift, or anything else of
value, if payment of money or other consideration is
required in order to receive the prize or gift, including the
purchase of other merchandise or services or the payment
of any processing fees, delivery charges, shipping and
handling fees, or other fees or charges; or
4. Offering the person called a prize, gift, or other incentive to
attend a sales presentation for consumer goods or services,
an investment or business opportunity, or a consumer loan;
or
(b) A live or recorded communication sent by telephone, facsimile
machine, mobile telephone, or telephone paging device in
response to inquiries generated by unrequested notifications
sent by the merchant to persons who have not previously
purchased goods or services from the merchant or telemarketer
or who have not previously requested credit from the merchant,
to a prospective purchaser if the merchant or telemarketer

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represents or implies to the recipient of the notification that any
of the following applies:
1. That the recipient has in any manner been specially
selected to receive the notification or the offer contained in
the notification;
2. That the recipient will receive a prize or gift if the recipient
calls the merchant or telemarketer; or
3. That if the recipient buys one (1) or more items from the
merchant or telemarketer, the recipient will also receive
additional or other items of the same or a different type at
no additional cost or for less than the regular price of the
items;
(2) “Telephone solicitation” does not mean the following:
(a) A telephone call made in response to an express request of
a person called, unless the request was made during a prior
telephone solicitation;
(b) A telephone call made to the debtor or a party to the contract
in connection with the payment or performance of an
existing debt or contract, the payment or performance of
which has not been completed at the time of the call;
(c) A telephone call to any person with whom the telemarketer or
merchant has a prior or existing business relationship,
including but not limited to the solicitation of contracts for the
maintenance or repair of items previously purchased from the
person making the solicitation or on whose behalf the
solicitation is made; . . . (emphasis added.)
Ky. Rev. Stat. § 367.46951. Significantly, inherent in any telephone solicitation
is the notion that the “solicitor” does the calling. Plaintiff ha s not alleged that
Geller actually initiated a telephone call to him, stating only that he “spoke with
Robert Geller over the telephone in 2008 and 2010.”

(Docket No. 42 -1.)

Furthermore, Geller’s Affidavit states that he only spoke to Plaintiff “once” and
that was when he “happened to answer the phone.”

(Docket No. 33-2.)

Accordingly, the Court holds that Geller’s alleged conduct wouldn’t constitute a
“telephone solicitation.”

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In any event, even assuming Geller made the alleged calls, KRS §
367.46951(2) states a “telephone solicitation” does not mean a call made “in
connection with the payment or performance of an existing debt or contract, the
payment or performance of which has not been completed at the time of the
call.” It also states that a “telephone solicitation” does not mean a call made by
someone who “has a prior or existing business relationship.” Since any alleged
conversation

between

Plaintiff

and

Geller

is

premised

on

Plaintiff’s

dissatisfaction with the coins he received under a contra ct, it would be “in
connection with . . . an existing . . . contract.”

Furthermore, as an agent of

Anthony’s, Geller would arguably have a “prior business relationship” with
Plaintiff.
III.

Conclusion as to Kentucky Long-Arm Statute
Remaining cognizant of the recent instruction from the Kentucky Supreme

Court that Kentucky’s long-arm statute must be separately satisfied independent
from any due process analysis, the Court has reviewed the nine provisions of the
statute and found no basis for personal jurisdiction as to Defendant Geller based
on Plaintiff’s allegations.

Accordingly, the Court lacks personal jurisdiction

over Defendant Geller. Because Kentucky’s long-arm statute does not establish
a basis for personal jurisdiction over Geller, the Court need not determine
whether or not the exercise of personal jurisdiction would comport with due
process. However, because there is limited precedent interpreting the Kentucky
long-arm statute and out of an abundance of caution, the Court will demonstrate

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that even if this Court had personal jurisdiction over Geller under the Kentucky
long-arm statute, the exercise of jurisdiction over Geller in any event would
violate his due process rights under the Fourteenth Amendment.

See, e.g.,

Hinners v. Robey, 336 S.W.3d 891, 900 (Ky. 2011) (finding defendant was not
subject to personal jurisdiction in Kentucky under the federal due process
analysis in the context of a single eBay contract); DESA IP, LLC v. Pinnacle
Products, Inc., No. 1:08-cv-87-R, 2009 WL 723225, at *7-8 (W.D. Ky. March 18,
2009) (finding lack of personal jurisdiction over individual officers of
corporation).
IV.

Due Process Analysis
“The Fourteenth Amendment’s Due Process Clause sets the outer

boundaries of a state tribunal’s authority to proceed against a defendant.”
Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S.Ct. 2846, 2848 (2011).
Due Process “protects an individual’s liberty interest in not being subject to the
binding judgments of a forum with which he has established no meaningful
‘contacts, ties, or relations.’” Burger King Corp. v. Rudzewicz, 471 U.S. 462,
471–72 (1985) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 319 (1945)).
To satisfy due process, Plaintiff must “establish with reasonable particularity
sufficient ‘minimum contacts’ with [Kentucky] so that the exercise of
jurisdiction over [Geller] would not offend ‘traditional notions of fair play and
substantial justice.’” Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883,
889 (6th Cir. 2002) (quoting Int’l Shoe, 326 U.S. at 316). The Sixth Circuit has

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distilled the due process requirements into a three part test, each part of which
must be met in order for a court to assert personal jurisdiction over an out -ofstate defendant:
First, the defendant must purposefully avail himself of the
privilege of acting in the forum state or causing a consequence in
the forum state. Second, the cause of action must arise from the
defendant's activities there. Finally, the acts of the defendant or
consequences caused by the defendant must have a substantial
enough connection with the forum state to make the exercise of
jurisdiction over the defendant reasonable.
Neogen Corp., 282 F.3d at 889-90 (quoting S. Mach. Co. v. Mohasco Indus., Inc.,
401 F.2d 374, 381 (6th Cir. 1968)).
The “purposeful availment” prong is satisfied when the defendants’
contacts with the forum state are such that they “should reasonably anticipate
being haled into court there.” Rudzewicz, 471 U.S. at 475 (quotation omitted).
The defendants’ contacts must be more than “random,” “f ortuitous,” or
“attenuated.” Id. When determining whether an interstate contract justifies the
exercise of personal jurisdiction over a nonresident defendant, courts should
examine the “prior negotiations and contemplated future consequences, along
with the . . . parties’ actual course of dealing” to determine whether the
“defendant purposefully established minimum contacts within the forum.” Id. at
479.

In this regard, the Sixth Circuit focuses on where the negotiation and

performance occurred, advising that the quality of a party’s contacts with the
forum state matter more than the quantity.

Calphalon, 228 F.3d at 722. But

“jurisdiction will not lie solely because the out -of-state defendant has some

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business contacts with the forum state, particularl y where the negotiation and
performance of the agreement occurs largely out -of-state.” Papa John’s Int’l,
Inc. v. Entm’t Marketing & Commc’ns Int’l, Ltd., 381 F. Supp. 2d 638, 643 (W.D.
Ky. 2005) (emphasis in original) (citing Calphalon, 228 F.3d at 718; Hillerich &
Bradsby Co. v. Hall, 147 F. Supp. 2d 672 (W.D. Ky. 2001)).
The Court does not believe that Geller purposefully availed himself of the
Kentucky forum or that his contacts are more than “random,” “fortituous,” or
“attenuated.”

Rudzewicz, 471 U.S. at 475.

Plaintiff has alleged only two

isolated phone calls. These phone calls appear to have been placed by Plaintiff
to Geller at Anthony’s, LLC. All communications by Geller were made while he
was in New Jersey and acting as an agent of Anthony’s, LLC.

There is no

indication that Geller deliberately reached out to or solicited Plaintiff —Geller
merely answered a phone. The Court finds these are “random” or “attenuated”
contacts which do not merit a finding that Geller “purposefully availed” himself
of the Kentucky forum.
Because the Court finds this first element of the three -part test lacking,
the Court need not address the remaining two prongs. See Calphalon, 228 F.3d
at 721-22. Accordingly, the Court also finds a lack personal jurisdiction as to
Defendant Geller because the exercise of jurisdiction would violate his due
process rights under the Fourteenth Amendment. The Court need not address
Defendants’ other arguments for dismissal because it finds that it lacks personal

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jurisdiction over Defendant Geller under both the Kentucky long-arm statute and
the due process clause of the Fourteenth Amendment.
CONCLUSION
Therefore, having considered Defendants’ Motion and being otherwise
sufficiently advised, for the foregoing reasons;
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss for Lack
of Personal Jurisdiction as to Defendant Geller, (Docket No. 33), is GRANTED.
Defendant Geller shall be dismissed from this action.
IT IS SO ORDERED.

Date:

cc:

November 13, 2013

Counsel

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