                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-2-2006

Asanov v. Gholson Hicks
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2623




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"Asanov v. Gholson Hicks" (2006). 2006 Decisions. Paper 247.
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                                               NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                        No. 06-2623


  ALEXANDER N. ASANOV; OLGA S. PETROVA-ASANOV;
     LUDMILA A. ASANOV; BIOELECTROSPEC INC

                              v.

         GHOLSON, HICKS & NICHOLS, P.A.;
        DEWITT T. HICKS, JR.; M. JAY NICHOLS

                        Alexander N. Asanov, Olga
                 S. Petrova-Asanov, Ludmila A. Asanov,
                                      Appellants


       On Appeal From the United States District Court
            For the Middle District of Pennsylvania
                  (D.C. Civ. No. 05-cv-2098)
       District Judge: Honorable Christopher C. Conner


         Submitted Under Third Circuit LAR 34.1(a)
                     October 11, 2006


Before: BARRY, CHAGARES, AND COWEN, CIRCUIT JUDGES

                 (Filed: November 2, 2006 )


                         OPINION
PER CURIAM

        Appellants Alexander N. Asanov, Olga S. Petrova-Asanov, and Ludmila A.

Asanov (collectively “the Asanovs”) filed suit against a Mississippi law firm, Gholson,

Hicks & Nichols, P.A., and two of its attorneys, Mississippi residents Dewitt T. Hicks,

Jr., and M. Jay Nichols (collectively “the law firm defendants”).1 The Asanovs sued the

law firm defendants for representing two individuals who sued the Asanovs in the United

States District Court for the Northern District of Mississippi. Not only did the Asanovs

allege that the lawsuit filed by the law firm defendants was frivolous, they also took issue

with the law firm defendants’ actions in the Mississippi district court. For instance, they

alleged that the law firm defendants committed fraud upon the Mississippi court by

fabricating false documents and otherwise, and that the law firm defendants demonstrated

incompetence in their actions in that forum by not understanding terms like “contract”

and “contractual agreement.” The law firm defendants moved to dismiss the Asanovs’

complaint, arguing that the District Court, sitting in the Middle District of Pennsylvania,

did not have personal jurisdiction over them. The District Court granted the motion, and

dismissed the Asanovs’ complaint. The Asanovs appeal and move for appointment of




   1
    The suit was also brought in the name of BioElectroSpec, Inc., the Asanovs’
company. On the defendants’ motion, the District Court dismissed BioElectroSpec, Inc.,
from the Asanovs’ action because BioElectroSpec, Inc., was not represented by counsel.
See Rowland v. California Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194,
201-02 (1993). The Asanovs specifically do not appeal from the order dismissing
BioElectroSpec, Inc., from the action. (Appellants’ Reply Brief at 3.)

                                             2
counsel.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise de novo review

over the District Court’s decision that it lacks personal jurisdiction over the law firm

defendants. See Telecordia Tech Inc. v. Telkom SA Ltd., ___ F.3d ___, No. 05-1653,

2006 WL 2337266, at *2 (3d Cir. Aug. 14, 2006). We accept all of the allegations in the

Asanovs’ complaint and construe disputed facts in favor of the Asanovs. See id.

However, we review the factual findings of the District Court for clear error. See id.

Employing these standards of review, we will affirm the order of the District Court, as the

District Court correctly concluded that it lacked personal jurisdiction over the law firm

defendants.

       We have elsewhere summarized the essential applicable rules governing the

exercise of personal jurisdiction, specifically:

       A federal district court may assert personal jurisdiction over a nonresident
       of the state in which the court sits to the extent authorized by the law of that
       state. Fed.R.Civ.P. 4(e). The Pennsylvania Long-Arm Statute provides in
       relevant part that “the jurisdiction of the tribunals of this Commonwealth
       shall extend . . . to the fullest extent allowed under the Constitution of the
       United States and may be based on the most minimum contact with this
       Commonwealth allowed under the Constitution of the United States.” 42
       Pa.Cons.Stat.Ann. § 5322(b) (Purdon 1981). See Time Share Vacation Club
       v. Atlantic Resorts, Ltd., 735 F.2d 61, 63 (3d Cir. 1984). The due process
       clause of the fourteenth amendment of the United States limits the reach of
       the long-arm statutes so that a court may not assert personal jurisdiction
       over a non-resident who does not have “certain minimum contacts with [the
       forum] such that the maintenance of the suit does not offend ‘traditional
       notions of fair play and substantial justice.’ ” International Shoe Co. v.
       Washington, 326 U.S. 310, 316 . . . (1945) (quoting Milliken v. Meyer, 311
       U.S. 457, 463 . . . (1940)). The nature of these contacts must be such that

                                               3
       the defendant should be reasonably able to anticipate being haled into court
       in the forum state. World-Wide Volkswagen Corp. v. Woodson, 444 U.S.
       286, 297 . . . (1980).

Provident Nat’l Bank v. California Federal Sav. & Loan Ass’n, 819 F.2d 434, 436-37 (3d

Cir. 1987).

       Because the law firm defendants raised a jurisdictional defense, the Asanovs bore

the burden of establishing with reasonable particularity sufficient contacts between the

defendants and Pennsylvania, the forum state, to support jurisdiction. See Provident Nat’l

Bank, 819 F.2d at 437. The Asanovs were obligated to show general jurisdiction, that is,

that the defendants had continuous and systematic contacts with the forum state, or

specific jurisdiction, that their cause of action arose upon the defendants’ activities within

the forum state. See id.

       The Asanovs did not meet their burden to show either general or specific

jurisdiction. In their complaint, the Asanovs alleged generally that the law firm

defendants “made numerous contacts with Pennsylvania.” (Complaint at 1.) They

described the contacts as “extensive in time.” (Id.) In affidavits attached to the

complaint, the Asanovs further contended that defendants Hicks and Nichols “made

numerous contacts . . . over the phone, fax, electronic and surface mail.” (Id., Affidavit

of Alexander N. Asanov at 2.) The Asanovs reiterated these allegations in their response

to the law firm defendants’ motion to dismiss for lack of personal jurisdiction. The

response itself borders on inadequate. See Time Share Vacation Club v. Atlantic Resorts,



                                              4
Inc., 735 F.2d 61, 66 (3d Cir. 1984) (holding that a plaintiff establishing personal

jurisdiction must present more than “mere affidavits which parrot and do no more than

restate plaintiff’s allegations without identification of particular defendants and without

factual content”).

       In any event, the contacts that the Asanovs describe, all arising from the parties’

interactions in relation to the Mississippi lawsuit, are not the continuous and substantial

contacts that support general jurisdiction. Furthermore, although mail and telephone

communications and the like sent by defendants into the forum may count as minimum

contacts that support jurisdiction, see Grand Entm’t Group v. Star Media Sales, 988 F.2d

476, 482 (3d Cir. 1993), they do not support specific jurisdiction in this case. We must

focus on “the relationship of the transaction giving rise to the lawsuit to the forum where

the plaintiff[s] seek[] to litigate it.” See Reliance Steel Products Co. v. Watson, Ess,

Marshall & Enggas, 675 F.2d 587, 588 (3d Cir. 1982). The Asanovs’ cause of action did

not arise from the multiple “phone, fax, electronic and surface mail” contacts (as a lawsuit

relating to contract negotiations over the phone or fax might, see Grand Entm’t Group,

988 F.2d at 482-83, or a claim based on tortious misrepresentations in phone, fax, and

other correspondence could, see Kultur Int’l Films v. Covent Garden Pioneer, FSP, 860 F.

Supp. 1055, 1062 (D.N.J. 1994)). Their lawsuit in the Middle District of Pennsylvania

arose from the law firm defendants’ actions in the Northern District of Mississippi,

namely the purported fraud and incompetence in that forum. Accordingly, the contacts



                                              5
that the law firm defendants had with the Asanovs in this forum are not minimum

contacts that support specific jurisdiction. Cf. Sher v. Johnson, 911 F.2d 1357, 1363 (9th

Cir. 1990) (holding that “normal incidents” of legal representation, such as making phone

calls and sending letters, do not, by themselves, establish purposeful availment to support

the assertion of personal jurisdiction).

       In sum, the District Court properly dismissed the Asanovs’ suit against the law

firm defendants for lack of personal jurisdiction. Accordingly, we will affirm the District

Court’s judgment. The Asanovs’ motion for appointment of counsel is denied.




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