                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                              SUPERIOR COURT OF NEW JERSEY
                              APPELLATE DIVISION
                              DOCKET NO. A-2956-16T4

EGG HARBOR CARE CENTER,
                                  APPROVED FOR PUBLICATION
      Plaintiff-Appellant,
                                       July 10, 2018
v.
                                    APPELLATE DIVISION
PATRICIA SCHERALDI and
BETTY TERHUNE DAVIS,

      Defendants,

and

COREY PAGANO,

     Defendant-Respondent.
_________________________________

          Argued June 5, 2018 - Decided July 10, 2018

          Before Judges Fisher, Sumners, and Natali.

          On appeal from Superior Court of New Jersey,
          Law Division, Atlantic County, Docket No.
          L-0166-16.

          Kevin S. Englert argued the cause for
          appellant (Law Office of Laurie M. Fierro, PA,
          attorneys; Laurie M. Fierro, of counsel; Kevin
          S. Englert, on the brief).

          Jennifer M. Carlson argued the cause for
          respondent   (Richard   M.   Pescatore,    PC,
          attorneys; Jennifer M. Carlson, on the brief).

      The opinion of the court was delivered by

NATALI JR., J.S.C. (temporarily assigned).
     In this collection action we must determine whether a New

Jersey court may, consistent with the Due Process Clauses of the

State and Federal Constitutions, permissibly exercise specific

personal   jurisdiction    over   a   California    resident     for    losses

incurred by a New Jersey nursing facility that was caring for the

Californian's mother.     Because we conclude the quantity and nature

of the California resident's contacts with New Jersey are so remote

and insufficient that to hale him into New Jersey to defend this

action   would   offend   "traditional    notions    of   fair    play      and

substantial justice,"1 we affirm the trial judge's decision to

dismiss the case.   We remand only to permit the entry of an amended

order dismissing the action without prejudice.

     Before moving to New Jersey, Patricia Scheraldi lived in

Virginia where she executed a durable, general power of attorney

naming her son, defendant Corey Pagano as her attorney-in-fact.

Pagano has not lived in New Jersey in over three decades and has

not set foot in our state in seventeen years.

     Scheraldi became a resident of plaintiff Egg Harbor Care

Center after suffering a stroke and broken hip.             Prior to her

admission on July 7, 2014, she and her sister, Betty Terhune Davis,

also a New Jersey resident, executed an admission agreement with


1
   Int'l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945) (quoting
Milliken v. Meyer, 311 U.S. 457, 463 (1940)).

                                      2                                A-2956-16T4
Egg   Harbor    that    contained       provisions     detailing    the    parties’

respective responsibilities related to Scheraldi’s care and, of

course, payment.       Among the obligations Davis agreed to shoulder

was to advocate on Scheraldi’s behalf before social services and

to be a co-guarantor for Scheraldi’s payment obligation.                      Pagano

was    neither       presented      with       nor     signed   the        admission

document.      Rather, he was merely listed as an "other person to be

notified."

      Consistent       with    these      obligations     and      shortly     after

Scheraldi’s admission, Davis filed for Medicaid benefits with the

Atlantic County Medicaid Long Term Care Unit (Medicaid Office).

Davis’ application was denied because Pagano was in control of a

California bank account in Scheraldi’s name in the amount of $4700,

which was above the maximum allowed for Medicaid eligibility.

Pagano   attempted     to     contact    the   Medicaid    office     on   numerous

occasions      via   telephone,     email,       and    facsimile     to     provide

information and ask questions surrounding Scheraldi's application.

Pagano ultimately spent down Scheraldi's assets and she was granted

coverage beginning January 1, 2015. As a result of Pagano’s delay,

Egg Harbor did not receive payment from Medicaid for Scheraldi's

care from July through December of 2014. The loss of reimbursement

from Scheraldi during these five months forms the factual basis

for Egg Harbor’s damages.

                                           3                                 A-2956-16T4
      After an appeal of the Medicaid disqualification period was

filed, an Administrative Law Judge (ALJ) reversed the decision of

the Medicaid Office. The ALJ also noted the submission of a letter

that Pagano sent outlining his efforts to contact the Medicaid

Office.   The ALJ's decision was reversed by the Director of the

Division of Medical Assistance and Health Services (Director).

      Egg Harbor filed a complaint in the Law Division to recover

the approximately $19,000 allegedly owed by Scheraldi, Davis and

Pagano.   As to Pagano, Egg Harbor alleged that he committed

negligence, breached his fiduciary obligation and interfered with

Egg   Harbor’s    contractual   relations   and   economic   advantage    by

failing to timely pay down Scheraldi’s assets. Davis was dismissed

from the case after declaring bankruptcy and Egg Harbor obtained

default judgment against Scheraldi.

      Pagano moved to dismiss the complaint claiming New Jersey

lacked personal jurisdiction over him.            Egg Harbor challenged

Pagano’s contacts by relying upon the certification of Rosemarie

Barruos, Egg Harbor’s accounts receivable supervisor.           According

to Barruos, in addition to being Scheraldi's attorney-in-fact,

Pagano served as the representative payee of Scheraldi’s monthly

pension income, which means that he "receive[d] it on her behalf

each month and pays it monthly to Egg Harbor through the mail from

California   to    New   Jersey."   Barruos   also   averred   that since

                                    4                              A-2956-16T4
Scheraldi's     admission,    she     and   her   staff     "have    had     many

conversations and email communications with Mr. Pagano."              Although

she    failed   to   detail    precisely      the    substance      of     those

conversations, Egg Harbor's merits brief provides that Pagano

"maintained regular contact with Egg Harbor by email and telephone"

and that the contact was "presumably related to Scheraldi's ongoing

health care." Finally, Barruos contended that Pagano’s contacts

with New Jersey included communications with social services in

New Jersey and his direct and indirect prosecution of the action

before the ALJ and the Director.

       The trial judge agreed with Pagano and dismissed the complaint

with prejudice.      On appeal, Egg Harbor makes the same arguments

rejected by the trial judge claiming: (1) Pagano’s email and

telephone contacts with Egg Harbor related to Scheraldi's care;

and (2) Pagano’s communications with Medicaid and actions with

respect to the proceedings before the ALJ and the Director are

sufficient to exercise personal jurisdiction over him. We disagree

and affirm.

       "We review the [trial] court's factual findings with respect

to    jurisdiction   to   determine    whether    they    were   supported      by

substantial, credible evidence" in the record.                   Mastondrea v.

Occidental Hotels Mgmt. S.A., 391 N.J. Super. 261, 268 (App. Div.

2007).    "A trial court's interpretation of the law and the legal

                                       5                                 A-2956-16T4
consequences that flow from established facts are not entitled to

any special deference[,]" and, as such, our review of a trial

judge's legal conclusions surrounding personal jurisdiction is

plenary.    Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378

(1995).

     The "Due Process Clause of the Fourteenth Amendment operates

as a limitation on the jurisdiction of state courts to enter

judgments     affecting   rights   or   interests   of   nonresident

defendants."    Kulko v. Super. Ct. of Cal., 436 U.S. 84, 91 (1978).

"[A] valid judgment imposing a personal obligation or duty in

favor of the plaintiff may be entered only by a court having

jurisdiction over the person of the defendant."     Ibid.; see also

World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980).

     A New Jersey court "may exercise in personam jurisdiction

over a non-resident defendant 'consistent with due process of

law.'"     Bayway Refining Co. v. State Utilities, Inc., 333 N.J.

Super. 420, 428 (App. Div. 2000) (quoting R. 4:4-4(b)(1)).    A two-

part test governs our analysis:

            [D]ue process requires only that in order to
            subject a defendant to a judgment in personam,
            if he be not present within the territory of
            the forum, [(1)] he have certain minimum
            contacts with it [(2)] such that the
            maintenance of the suit does not offend
            "traditional   notions   of   fair  play   and
            substantial justice."


                                   6                         A-2956-16T4
          [Int'l Shoe, 326 U.S. at           316     (quoting
          Milliken, 311 U.S. at 463).]

     The necessary "quality and quantum of contacts" depends on

whether specific or general jurisdiction is asserted.           Citibank,

N.A. v. Estate of Simpson, 290 N.J. Super. 519, 526 (App. Div. 1996).

Specific jurisdiction, which Egg Harbor invokes here, is established

when "a cause of action arises directly out of a defendant's

contacts with the forum state."     Waste Mgmt. v. Admiral Ins. Co.,

138 N.J. 106, 119 (1994).2

     "'Minimum   contacts'   are   the   threshold   requirements     for

specific personal jurisdiction," ibid., and we evaluate minimum

contacts on a case-by-case basis, Blakey v. Cont'l Airlines, 164

N.J. 38, 66 (2000).   The inquiry "must focus on the relationship

among the defendant, the forum, and the litigation."             Baanyan

Software Servs., Inc. v. Kuncha, 433 N.J. Super. 466, 474 (App.

Div. 2013) (quoting Lebel, 115 N.J. at 323).       There must be "some

act by which the defendant purposefully avails itself of the



2
  If the suit "is not related directly to the defendant's contacts
with the forum state, but is based instead on the defendant's
continuous and systematic activities in the forum, then the State's
exercise of jurisdiction is 'general.'" Waste Mgmt., 138 N.J. at
119. When general jurisdiction exists, the defendant is subjected
"to suit on virtually any claim."     Lebel v. Everglades Marina,
Inc., 115 N.J. 317, 323 (1989).      Because Egg Harbor does not
contend that Pagano's contacts with New Jersey rise to the level
necessary to exercise general jurisdiction, we do not address the
issue.

                                   7                             A-2956-16T4
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)).

     The     minimum   contacts   requirement   is   satisfied   if    the

defendant's contacts resulted from their "purposeful conduct and

not the unilateral activities of the plaintiff," Lebel, 115 N.J.

at 323, or the "unilateral activity of another who merely claims

a relationship to the defendant," Charles Gendler & Co. v. Telecom

Equip. Corp., 102 N.J. 460, 471 (1986).         In evaluating "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 Refining

Co., 333 N.J. Super. at 429 (quoting World-Wide Volkswagen, 444

U.S. at 297)).     Simply put, the purposeful availment requirement

"ensures that a defendant will not be haled into a jurisdiction

solely as a result of 'random,' 'fortuitous,' or 'attenuated'

contacts."     Lebel, 115 N.J. at 323-24 (quoting Burger King Corp.

v. Rudzewicz, 471 U.S. 462, 475 (1985)). In terms of purposeful

availment, it is recognized that "the mere transmittal of messages

by mail or telephone within the state is not the critical factor,

it is the nature of the contact."       Lebel, 115 N.J. at 325.

                                    8                             A-2956-16T4
     Once    it    is   established         that       a    defendant's      activities

establish minimum contacts with the forum state, we must then

evaluate    whether     it     would   be       reasonable          to   exercise    that

jurisdiction.      Baanyan, 433 N.J. Super. at 476-78.                         In other

words, we must consider whether it would "offend 'traditional

notions of fair play and substantial justice'" to entertain the

suit.     Id. at 473-74 (quoting Int'l Shoe, 326 U.S. at 316).                          To

do so, we evaluate the burden on the defendant, the forum state's

interests, and the interests of the plaintiff in obtaining relief.

Id. at 476 (quoting Asahi Metal Indus. Co., Ltd. v. Super. Ct. of

Cal., 480 U.S. 102, 113 (1987)).

     We     accept,     as    did    the       trial       judge,    the    established

jurisdictional facts and also recognize, as did the United States

Supreme    Court   over      forty   years      ago,       that   any    jurisdictional

analysis is not subject to mechanical application in which answers

are rarely written "in black and white.                     The greys are dominant

and even among them the shades are innumerable."                         Kulko, 436 U.S.

at 92 (quoting Estin v. Estin, 334 U.S. 541, 545 (1948)).

     It is clear upon consideration of the relationship "among

[Pagano], the forum, and the litigation," Lebel, 115 N.J. at 323

(quoting Shaffer v. Heitner, 433 U.S. 186, 204 (1977)), that Pagano

did not purposefully avail himself of the laws and protections of

New Jersey.       Pagano's "conduct and connection," Bayway Refining

                                           9                                     A-2956-16T4
Co., 333 N.J. Super. at 429 (quoting World-Wide Volkswagen, 444

U.S. at 297), with New Jersey arises out of his relationship with

his mother and her residency in the state: (1) he is the payee for

her incurred obligations; (2) he contacted Egg Harbor regarding

her healthcare; and (3) he was involved in efforts to obtain her

Medicaid coverage.   Despite Egg Harbor's argument that Pagano's

contacts support a finding of specific jurisdiction, Pagano could

not "reasonably anticipate being haled into court" in New Jersey

based upon his actions for the benefit of his mother.         Ibid.

(quoting World-Wide Volkswagen, 444 U.S. at 297).   In other words,

Pagano did not "purposely create[] contacts with New Jersey."

Lebel, 115 N.J. at 324.   He did not sign the admission agreement

and did not otherwise assent to a single term that would have

obligated him for his mother’s expenses.     This absence of any

contractual relationship with Egg Harbor, when combined with his

lack of residency and lack of physical presence for such an

extended period, fairly characterize his contacts as "attenuated."

Id. at 323.

     Stated differently, we conclude it is inappropriate for a

court to find a nonresident defendant such as Pagano subject to

personal jurisdiction based upon contacts with the forum state

when he cannot reasonably prevent those contacts or encounters.

In other words, purposeful availment exists where it is reasonably

                               10                           A-2956-16T4
feasible for a defendant to sever contacts with a forum, but

chooses not to do so.     See Henry S. Noyes, The Persistent Problem

of Purposeful Availment, 45 Conn. L. Rev. 1, 34 (2012); World-Wide

Volkswagen, 444 U.S. at 297 ("When a corporation 'purposefully

avails itself of the privilege of conducting activities within the

forum State,' Hanson v. Denckla, 357 U.S., at 253, it has clear

notice that it is subject to suit there, and can act to alleviate

the risk of burdensome litigation. . . .").

      Here, Pagano’s relevant interactions with Egg Harbor and his

attendant contacts to secure benefits for his mother were not

affirmative choices that he could reasonably prevent.        Indeed, his

power-of-attorney (formed in Virginia) obligated him to address

issues related to his mother’s assets.       That those contacts took

place in New Jersey reflects the fortuitous status of his mother’s

residence in a New Jersey facility, a decision to which he played

no   meaningful   role.    On   these   facts,   we   conclude   Pagano’s

communications with New Jersey were not purposeful in the context

of a minimum contacts analysis.

      In light of our finding that Pagano fails to possess the

requisite minimum contacts necessary to permit a New Jersey court

to invoke jurisdiction, we are not required to consider, and

therefore do not discuss extensively, the second part of the test:

whether it would offend "traditional notions of fair play and

                                   11                             A-2956-16T4
substantial      justice,"     Int'l   Shoe,     326    U.S.    at   316    (quoting

Milliken, 311 U.S. at 463), to hale Pagano into a New Jersey court.

But, even if we were to consider the issue, for the reasons we

have detailed, it would clearly be unreasonable to require Pagano

to defend this case in New Jersey.                     And, while Egg Harbor's

"interest in obtaining relief is but one of the facts that we must

consider    in     determining     whether       the    exercise     of     personal

jurisdiction" over Pagano is reasonable, Baanyan, 433 N.J. Super.

at 478, Pagano should not be burdened with defending a New Jersey

lawsuit    simply    because     Egg   Harbor     has    been   unsuccessful        in

obtaining relief from Scheraldi and Davis.

       Finally,    as   the    dismissal    of   the     complaint    was    not    an

adjudication on the merits, the dismissal order should have been

without prejudice, not with prejudice.                  "As a general rule, a

dismissal on the merits is with prejudice while a dismissal based

on the court's procedural inability to consider a case is without

prejudice."       Pressler & Verniero, Current N.J. Court Rules, cmt.

4 on R. 4:37-2 (2018) (citing Watkins v. Resorts Int'l Hotel &

Casino, 124 N.J. 398, 415-16 (1991)).                   Dismissal for lack of

jurisdiction is not an adjudication on the merits.                   R. 4:37-2(d)

("[A]ny dismissal not specifically provided for by R. 4:37, other

than   a   dismissal     for    lack   of   jurisdiction,       operates      as    an

adjudication on the merits.").          See also Korvettes, Inc. v. Brous,

                                       12                                    A-2956-16T4
617 F.2d 1021, 1024 (3d Cir. 1980) ("A dismissal for lack of

jurisdiction is plainly not a determination of the merits of a

claim. Ordinarily, such a dismissal is 'without prejudice.'");

A.A. v. Gramiccioni, 442 N.J. Super. 276, 281 n.3 (App. Div. 2015)

("A dismissal based on the court's procedural inability to consider

a case is without prejudice."); Exxon Research & Eng'g Co. v.

Indus. Risk Insurers, 341 N.J. Super. 489, 519 (App. Div. 2001)

(finding that a dismissal for lack of jurisdiction should be

without prejudice because such a dismissal is not an adjudication

on the merits).

     Affirmed and remanded with directions to amend the order to

dismiss the case without prejudice.




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