                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                        SUPERIOR COURT OF NEW JERSEY
                                        APPELLATE DIVISION
                                        DOCKET NO. A-2058-12T3

BAANYAN SOFTWARE SERVICES, INC.,

     Plaintiff-Appellant,
                                            APPROVED FOR PUBLICATION
v.                                             December 19, 2013

HIMA BINDHU KUNCHA,                           APPELLATE DIVISION

     Defendant-Respondent.



         Submitted December 10, 2013 – Decided         December 19, 2013

         Before Judges Reisner, Alvarez and Carroll.

         On appeal from Superior Court of New Jersey,
         Law Division, Middlesex County, Docket No.
         L-2529-12.

         Archer & Greiner, attorneys for appellant
         (Patrick Papalia, of counsel; Leo J. Hurley,
         Jr., on the brief).

         Hima Bindhu Kuncha, respondent pro se.

     The opinion of the court was delivered by

CARROLL, J.S.C. [temporarily assigned].

     Plaintiff    Baanyan    Software    Services,    Inc.    (Baanyan),

appeals from a December 7, 2012 Law Division order dismissing

its complaint for lack of personal jurisdiction over defendant
Hima Bindhu Kuncha.1          Since we conclude that defendant lacked

minimum contacts with New Jersey, and that to subject defendant

to jurisdiction in New Jersey would offend traditional notions

of fair play and substantial justice, we affirm.

                                         I.

    We     discern    the    following    facts   from    the     limited     record

before the Law Division on the motion to dismiss.                      Because no

jurisdictional discovery was ordered, nor apparently requested,

we rely upon the complaint and the certifications that were

filed supporting and opposing defendant's dismissal motion.

    Baanyan      is     an    information      technology        development      and

software consulting company with its headquarters in Edison, New

Jersey.      According       to   Baanyan's    website,     it    is   part    of    a

multinational corporate organization that, "[r]eaching out from

its locations in [the] USA and India, is able to locate and

attract the very best computing talent from all over the globe."

    Baanyan employed defendant as a computer systems analyst,

pursuant    to   a    written     consulting    agreement.         Defendant      was

living in California in January 2011 when the agreement was

1
  In her brief, defendant challenges an $825 counsel fee award
imposed against her as a sanction.    We decline to disturb the
November 5, 2012 order imposing that sanction, as defendant has
not cross-appealed from that order. "It is clear that only the
. . . orders . . . designated in the notice of appeal . . . are
subject to the appeal process and review." Pressler & Verniero,
Current N.J. Court Rules, Comment 6.1 on R. 2:5-1 (2014).



                                         2                                  A-2058-12T3
signed.      Defendant       negotiated       certain     terms      of     the   contract

through various e-mails and telephone calls with representatives

of Baanyan.        Defendant sent an executed copy of the consulting

agreement    to      Baanyan,    which       executed     it    at    its    New       Jersey

headquarters.         The agreement itself is silent as to Baanyan's

address.    It also contains no forum selection clause.

    The terms of employment required defendant to relocate from

California      to    Illinois    to     provide       the     consulting         services.

Defendant       moved   to    Illinois        in   February          2011,    and       began

providing services as needed for two of Baanyan's clients, both

located    in     Illinois.       From       May   2011      through      August        2011,

defendant was out of the country, and provided no services for

Baanyan.     After defendant returned to Illinois, during September

2011 she resumed working for Baanyan on a project for one of its

corporate    clients,        Halcyon,    Inc.,     a    company       based       in    Ohio.

Baanyan paid defendant for her services in Illinois via direct

deposit into her Illinois bank account.                      The five payments she

received    were     memorialized       by    receipts       bearing      Baanyan's       New

Jersey address.         At no time during her brief employment with

Baanyan did defendant ever work in New Jersey, nor did she ever

provide services for any client of Baanyan that was located in

New Jersey.




                                             3                                     A-2058-12T3
     In October 2011, defendant ceased working for Baanyan and

began working for Halcyon.               She continued to work for Halcyon

until December 23, 2011.               According to defendant's unrefuted

certification, both she and Halcyon "settled the dispute with

Baanyan about my having gone to work for Halcyon.                               In fact,

Baanyan was paid monies on that dispute, not only by Halcyon,

but by me."     In January 2012, defendant moved to Tennessee, and

obtained employment with another software company headquartered

in   California.        Defendant        continues         to    live    and    work    in

Tennessee.

     On April 10, 2012, Baanyan filed suit against defendant in

the Law Division, Middlesex County, alleging breach of contract,

tortious    interference        with     Baanyan's         business     relationships,

breach of fiduciary obligations, unjust enrichment, and fraud.

Defendant    initially     did     not    respond       to      Baanyan's      complaint,

which resulted in the entry of default against her on August 8,

2012.       Thereafter,        defendant       moved    to      dismiss     plaintiff's

complaint    for   lack    of    personal      jurisdiction.            Alternatively,

defendant sought to vacate the prior default.

     On     December      7,    2012,      Judge       Jane      B.    Cantor    granted

defendant's    motion     to    dismiss.         In    a     written    decision       that

accompanied her order, the judge, citing a recent unpublished

decision of this court presenting a similar factual scenario,




                                           4                                     A-2058-12T3
concluded    that     the   circumstances      here      were    insufficient    to

establish personal jurisdiction over defendant.                     Specifically,

Judge Cantor reasoned:

            [D]efendant in this case has not done
            business or resided in New Jersey.    At all
            pertinent times the defendant worked in
            Illinois for two of plaintiff's corporate
            clients, both in Illinois.      All contacts
            concerning the hiring took place while the
            defendant was in California.   Any breach of
            the contract that might have taken place
            took place while defendant was in Illinois.

As a result, Judge Cantor dismissed plaintiff's complaint due to

lack of personal jurisdiction.

                                       II.

      On appeal, Baanyan argues that defendant's contacts with

New   Jersey,     which     consist    of    entering      into     a   consulting

agreement with a       New Jersey corporation, providing services for

and   accepting     payment   from    the    New   Jersey       corporation,   with

receipts    bearing     the   corporation's        New   Jersey     address,    and

providing timesheets to the corporation, are together sufficient

to establish personal jurisdiction over defendant in New Jersey.

Baanyan     further       argues     that    New      Jersey's      exercise     of

jurisdiction over defendant would not offend traditional notions

of fair play and justice, because defendant entered into an

agreement that she knew would have substantial effects in New

Jersey.     Finally, Baanyan submits that the fact that defendant




                                        5                                 A-2058-12T3
was not physically present in New Jersey is not dispositive of

whether New Jersey can exercise jurisdiction over her.                     For the

reasons that follow, we find these arguments unpersuasive.

      New Jersey courts may exercise personal jurisdiction over a

non-resident defendant "consistent with due process of law."                       R.

4:4-4(e).       New Jersey's long arm jurisdiction extends "to the

uttermost limits permitted by the United States Constitution."

Avdel Corp. v. Mecure, 58 N.J. 264, 268 (1971).

      Following     the   landmark    decision     by    the      United    States

Supreme Court in International Shoe Co. v. Washington, 326 U.S.

310, 66 S. Ct. 154, 90 L. Ed. 95 (1945), a two-part test has

consistently been applied in determining the extent to which

courts    can    assert   personal     jurisdiction        over     out-of-state

residents.      First, "due 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,   he     have    certain

minimum contacts with it[.]"          Id. at 316, 66 S. Ct. at 158, 90

L. Ed. at 102.      Second, the minimum contacts must be of a nature

and   extent    "such   that   the   maintenance    of   the     suit     does   not

offend    'traditional     notions     of   fair    play     and     substantial

justice.'"      Ibid. (quoting Milliken v. Meyer, 311 U.S. 457, 463,

61 S. Ct. 339, 343, 85 L. Ed. 278, 283 (1940)); see also Hanson

v. Denckla, 357 U.S. 235, 78 S. Ct. 1228, 2 L. Ed. 2d 1283




                                       6                                   A-2058-12T3
(1958); McGee v. Int'l Life Ins. Co., 355 U.S. 220, 78 S. Ct.

199, 2 L. Ed. 2d 223 (1957).                           "[T]he requisite quality and

quantum of contacts is dependent on whether general or specific

jurisdiction           is    asserted[.]"             Citibank,      N.A.    v.     Estate     of

Simpson, 290 N.J. Super. 519, 526 (App. Div. 1996).

       "If    a    cause      of    action    is       unrelated     to     the    defendant's

contacts      with      the       forum    state,      the    court's       jurisdiction       is

general."         Mische v. Bracey's Supermarket, 420 N.J. Super. 487,

491 (App. Div. 2011); see also Charles Gendler & Co. v. Telecom

Equip.       Corp.,         102    N.J.     460,       472     (1986).            For   general

jurisdiction to obtain, the defendant must have contacts with

this    State      that      are    "'so     continuous        and     substantial        as   to

justify      subjecting           the     defendant      to    jurisdiction.'"             Waste

Mgmt., Inc. v. The Admiral Ins. Co., 138 N.J. 106, 123 (1994),

cert. denied sub nom., WMX Techs. v. Canadian Gen. Ins. Co., 513

U.S. 1183, 115 S. Ct. 1175, 130 L. Ed. 2d 1128 (1995) (quoting

Gendler, supra, 102 N.J. at 472);                             see also Jacobs v. Walt

Disney World, Co., 309 N.J. Super. 443, 452 (App. Div. 1998).

"This     standard           for     establishing            general      jurisdiction         is

difficult         to    meet,      requiring          extensive      contacts       between      a

defendant and a forum."                 Mische, supra, 420 N.J. Super. at 492.

       Specific        jurisdiction          is    available       when     the     "cause     of

action arises directly out of a defendant's contacts with the




                                                  7                                     A-2058-12T3
forum state."        Waste Mgmt., supra, 138 N.J. at 119.                      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, 100 S. Ct. 559, 567-68, 62 L. Ed.

2d 490, 501-02 (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.), certif.

denied,    165     N.J.     605   (2000)     (quoting        World-Wide     Volkswagen

Corp., supra, 444 U.S. at 297, 100 S. Ct. at 567, 62 L. Ed. 2d

at 501).

    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., supra, 138




                                           8                                   A-2058-12T3
N.J. at 120 (quoting Hanson, supra, 357 U.S. at 253, 78 S. Ct.

at 1240, 2 L. Ed. 2d at 1298).              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 v. Cont'l Airlines, 164

N.J. 38, 67 (2000).

    There   is     no   requirement       that   the   defendant     ever    be

physically present in the forum state.           See Burger King Corp. v.

Rudzewicz, 471 U.S. 462, 476, 105 S. Ct. 2174, 2184, 85 L. Ed.

2d 528, 543 (1985).     The Supreme Court has indicated that:

          Although   territorial    presence   frequently
          will   enhance     a   potential    defendant's
          affiliation with a State and reinforce the
          reasonable foreseeability of suit there, it
          is an inescapable fact of modern commercial
          life that a substantial amount of business
          is transacted solely by mail and wire
          communications across state lines, thus
          obviating the need for physical presence
          within   a   State   in   which   business   is
          conducted.   So long as a commercial actor's
          efforts are "purposefully directed" toward
          residents   of    another    State,   we   have
          consistently rejected the notion that an
          absence of physical contacts can defeat
          personal jurisdiction there.

          [Ibid.]

    Thus,   "the    existence   of    minimum     contacts   turns    on    the

presence or absence of intentional acts of the defendant to

avail itself of some benefit of a forum state."               Waste Mgmt.,



                                      9                              A-2058-12T3
supra, 138 N.J. at 126.         After an examination of the defendant's

minimum   contacts      with    the   state,    the     court   must    determine

whether   "the   assertion      of    jurisdiction      affect[s]     traditional

notions of fair play and substantial justice."                  Blakey, supra,

164 N.J. at 69.

    Ultimately,         the     presence       or     absence    of      personal

jurisdiction     must   be     determined    "on    a   case-by-case      basis."

Bayway Ref. Co., supra, 333 N.J. Super. at 429.                  This analysis

requires a judicial examination of several elements in an effort

to satisfy the notions of "fair play and substantial justice."

Lebel, supra, 115 N.J. at 328.               Specifically, the court must

consider:

            [T]he burden on the defendant, the interests
            of the forum [s]tate, and the plaintiff's
            interest in obtaining relief.   It must also
            weigh in its determination "the interstate
            judicial system's interest in obtaining the
            most efficient resolution of controversies;
            and the shared interest of the several
            [s]tates     in    furthering     fundamental
            substantive social policies."

            [Asahi Metal Indus. Co., Ltd. v. Super. Ct.
            of Cal., 480 U.S. 102, 113, 107 S. Ct. 1026,
            1033, 94 L. Ed. 2d 92, 105 (1987) (quoting
            World-Wide Volkswagen, supra, 444 U.S. at
            292, 100 S. Ct. at 564, 62 L. Ed. 2d at
            498).]


    With those precedents in view, we turn to consider whether

Baanyan has met its burden of establishing a prima facie basis




                                        10                               A-2058-12T3
for   exercising        personal       jurisdiction            over       defendant.          See

Blakey,    supra,       164     N.J.       at   71.       Because         the   trial      court

dismissed the action on defendant's motion prior to discovery,

we assume that Baanyan can establish all of its allegations and

assertions.       NCP Litig. Trust v. KPMG LLP, 187 N.J. 353, 365-66

(2006).    Our review of the trial court's ruling on a motion to

dismiss for lack of jurisdiction at the inception of the case is

de novo.        Mastondrea v. Occidental Hotels Mgmt. S.A., 391 N.J.

Super. 261, 268 (App. Div. 2007).

      The extensive contacts required for establishing general

jurisdiction      are     not       present       here.        It    is    undisputed       that

defendant never resided nor did business in New Jersey, and that

at all relevant times she acted in Illinois, servicing two of

Baanyan's customers located there.

      To establish specific jurisdiction, plaintiff argues that

defendant purposefully sought out employment from Baanyan.                                      As

noted, the burden is on Baanyan to "allege or plead sufficient

facts"    to    warrant       the    court's         exercise       of    jurisdiction,       see

Blakey, supra, 164 N.J. at 71, and it must do so by way of

"sworn    affidavits,          certifications,            or    testimony."             Jacobs,

supra,    309    N.J.    Super.       at    454      (quoting       Catalano       v.   Lease    &

Rental    Mgmt.    Corp.,       252    N.J.       Super.       545,       547-48    (Law    Div.

1991)).    In the present litigation, the record simply does not




                                                11                                      A-2058-12T3
support    Baanyan's        argument.            The    certification          of   Baanyan's

president,     Raghu        Daripali,       merely      states    that     plaintiff       and

defendant      "entered          into      a     Consultant       Agreement"          whereby

plaintiff would employ defendant as a consultant.                               Defendant's

supplemental certification, on the other hand, avers that she

"was recommended to [Baanyan] by a sales person, Sai Sudani, who

worked . . . at Baanyan's office in Hyderabad, India," and that

defendant      discussed         the     terms    and     conditions      with      Baanyan's

representatives        in        India.          Additionally,        Baanyan's       website

proclaims that it "finds and retains qualified professionals,"

and, "[r]eaching out from its locations in USA and India, [it]

is able to locate and attract the very best computing talent

from   all     over    the       globe."          Thus,      contrary     to    plaintiff's

argument, there is no evidence in the record to support the

contention that defendant sought out employment with Baanyan in

New Jersey.

       Additionally, we have held that telephonic and electronic

communications        with       individuals        and      entities    located      in   New

Jersey    alone,      are    insufficient           minimum     contacts       to   establish

personal jurisdiction over a defendant.                         Pfundstein v. Omnicon

Grp.   Inc.,    285    N.J.       Super.       245,    252    (App.     Div.    1995).       In

Pfundstein, the panel found that New Jersey courts did not have

jurisdiction       over      a     New    York      corporation         that    executed      a




                                               12                                    A-2058-12T3
severance agreement with the plaintiff, an executive of the New

York corporation's subsidiary.               Ibid.    The court noted that

negotiation of the provisions of the agreement via telephonic

and interstate mail communications was not an attempt by the

defendant to "tap an interstate market or avail itself of the

privilege of doing business" in New Jersey, but rather was "a

'fortuitous' or 'attenuated' contact between [the defendant] and

New Jersey."    Ibid.     Thus, the court held that New Jersey could

not exercise specific jurisdiction over the defendant.                 Ibid.

    Similarly, the fact that defendant received payment from

Baanyan, and submitted timesheets to Baanyan, does not support a

finding    of   personal       jurisdiction      as   this    was     all      done

electronically and did not require any contact with New Jersey.

See Mellon Bank (EAST) PSFS, N.A. v. DiVeronica Bros., Inc., 983

F.2d 551, 555 (3d Cir. 1993) (noting that courts have rejected

the notion that accepting checks drawn on a bank in the forum

state is a valid basis for finding jurisdiction).

    Finally,     Baanyan       argues    that    subjecting        defendant    to

personal jurisdiction in New Jersey does not offend traditional

notions    of   fair    play    and     substantial    justice.         However,

plaintiff's interest in obtaining relief is but one of the facts

that we must consider in determining whether the exercise of

personal    jurisdiction       over     defendant     here    is     reasonable.




                                        13                               A-2058-12T3
Nothing    in    the    record      supports    a   finding      that    plaintiff,       a

multinational corporation, could not obtain the relief it seeks

in Tennessee, where defendant resides, or in Illinois, where all

of defendant's consulting services were rendered, and Baanyan's

customers who benefited therefrom are located.                           Moreover, any

breach of contract or tort that was allegedly committed occurred

in   Illinois.         New   Jersey's      nexus    to,    and       interest    in,    the

dispositive       events     that    occurred       in    Illinois,      is     virtually

nonexistent.

       In summary, we conclude that defendant's contacts with New

Jersey are attenuated at best.                   They are not continuous and

systematic so as to establish general jurisdiction.                             They are

more    akin     to    random,      fortuitous       contacts,         rather    than     a

purposeful      availment     of     the   benefits       and    privileges       of    New

Jersey law, and hence are likewise insufficient to establish

specific    jurisdiction.            Additionally,         to    allow    Baanyan,       an

international         company,     to   compel      an    individual      employee       to

defend against a New Jersey lawsuit, where that employee was

hired to work in Illinois, and never lived in, worked in, or

visited    New    Jersey,     violates      principles          of    "fair     play    and

substantial justice."            Lebel, supra, 115 N.J. at 328.                   We are

therefore satisfied that the facts support the trial judge's

finding    that    Baanyan       failed    to   establish       that     defendant      has




                                           14                                    A-2058-12T3
sufficient minimum contacts with the State of New Jersey for

jurisdiction to exist.

    Affirmed.




                             15                      A-2058-12T3
