Regan v. Loewenstein

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit

9-11-2008

Regan v. Loewenstein
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3266

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Recommended Citation
"Regan v. Loewenstein" (2008). 2008 Decisions. Paper 543.
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 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 07-3266

MARILOU REGAN;
FANFARE PUBLISHING, INC.,

Appellants

v.

PRINCE RUPERT LOEWENSTEIN;
THE RUPERT LOEWENSTEIN GROUP;
RUPERT LOEWENSTEIN, LTD.;
TONY KING; MICHAEL COHL;
ANTHILL TRADING, LTD.;
GRAND ENTERTAINMENT,
A DIVISION OF CONCERT
PRODUCTIONS INTERNATIONAL;
PROMOTONE, B.V.; MUSIDOR, B.V.

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(District Court No. 06-cv-00579)
District Judge: The Honorable James T. Giles

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
September 9, 2008

Before: SCIRICA, Chief Judge, MCKEE,
and SMITH, Circuit Judges

(Filed: September 11, 2008)
 OPINION

SMITH, Circuit Judge.

Marilou Regan and Fanfare Publishing, Inc. (“Plaintiffs”) appeal from the District

Court’s order dismissing their complaint. We will affirm.

I.

Marilou Regan is a Pennsylvania citizen and a journalist who authored a fan

tribute book about the Rolling Stones. Fanfare Publishing is a Pennsylvania corporation,

wholly owned and operated by Regan, that has the rights to publish and distribute

Regan’s book. Defendant-Appellees, none of which are Pennsylvania residents or based

in Pennsylvania, are individuals and corporate entities affiliated with the Rolling Stones.

Plaintiffs claim that Regan obtained promises from Defendants to help her develop and

market her book. Specifically, Plaintiffs claim that Defendants promised to provide: a

foreword written by the Rolling Stones; material for use in the book; contacts to help with

interviews and stories; photographs owned by Defendants; and marketing assistance and

exclusive sales of the book at concerts, at public relations events, in a Rolling Stones

catalogue, and through the Rolling Stones official fan club website. The nature and

timing of these alleged promises is difficult to discern, however, due to the vagueness and

inconsistency of the assertions in Plaintiffs’ pleadings, affidavits, and appellate briefs.

Plaintiffs claim that at some unspecified date in 1999, several of the Defendants “agreed

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to a long term plan” regarding the development and marketing of the book. (Pls.’ Second

Am. Compl. ¶ 32.) Plaintiffs also allege that Michael Cohl (acting on behalf of himself,

his company Concert Productions International (“CPI”), “and/or the other Defendants”)

agreed in early December of 2001 to market Regan’s forthcoming book at concerts, in

catalogues, and on the fan club website. (Pls.’ Second Am. Compl. ¶ 37–38.)

According to Plaintiffs, on January 28, 2002,1 Tony King (on behalf of Prince

Rupert Loewenstein, who was then the Rolling Stones’ business manager, and Rupert

Loewenstein, Ltd.) withdrew support for Regan’s book and demanded that Regan return

all materials that they had provided. (Pls.’ Second Am. Compl. ¶ 43.) Their alleged

motive for this decision was their desire to promote a book written by Dora Loewenstein,2

daughter of Prince Rupert Loewenstein, instead of Regan’s book. Plaintiffs claim that

Regan continued to discuss marketing plans with Cohl and CPI, and that, at some

unspecified date, “[t]he CPI Defendants through their agents agreed to purchase books

from Plaintiff at $25 per book, beginning with an initial purchase of 5000 books.” (Pls.’

Second Am. Compl. ¶ 40.) Also, they claim that non-party Mark Norman, acting on

behalf of “the CPI defendants,” told Regan not to sign with another distributor because

1
Plaintiffs’ original Complaint and Amended Complaint both state that these events
took place on January 28, 2002. (Pls’ Compl. ¶ 51; Pls’ Am. Compl. ¶ 55.) Their Second
Amended Complaint, in contrast, says that the events happened “[b]y early to mid 2002.”
(Pls.’ Second Am. Compl. ¶ 43.) The District Court found that these events took place on
January 28, 2002, and we see no reason to conclude that this finding is erroneous.
2
In an affidavit, Dora Loewenstein informed the District Court that she is now known
as Countess Theodora Della Gherardesca.

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“we want the book exclusively.” (Pls.’ Second Am. Compl. ¶ 66.) In August of 2002,

however, Cohl allegedly told Regan that he and CPI would not market her book because

they intended to market Dora Loewenstein’s book instead. Plaintiffs claim that

Defendants then made arrangements to deprive Regan of several business opportunities.

After Regan had published her book, she and her company filed suit in the Eastern

District of Pennsylvania. Their Second Amended Complaint contains sixteen counts that

fall into three general categories: (1) claims based on Defendants’ failure to comply with

their alleged promises; (2) claims that Defendants violated intellectual property and tort

law by stealing Regan’s material for use in Dora Loewenstein’s book; and (3) claims that

Defendants have damaged Regan’s career in various ways. Defendants filed a motion to

dismiss under FED. R. CIV. P. 12(b)(6) for failure to state a claim and under

FED. R. CIV. P. 12(b)(2) for lack of personal jurisdiction. The District Court granted the

motion, concluding that it lacked personal jurisdiction over any of the Defendants. The

District Court also denied Plaintiffs’ motion for jurisdictional discovery.

We review de novo a district court’s order dismissing a complaint for lack of

personal jurisdiction. Pinker v. Roche Holdings Ltd., 292 F.3d 361, 368 (3d Cir. 2002).

To the extent that the District Court made factual findings related to personal jurisdiction,

we review them for clear error. Mellon Bank (East) PSFS, Nat. Ass’n v. Farino, 960 F.2d

1217, 1220 (3d Cir. 1992). We review de novo a district court's grant of a motion to

dismiss for failure to state a claim, construing the complaint in the light most favorable to

the plaintiff. Sands v. McCormick, 502 F.3d 263, 267 (3d Cir. 2007). We review a

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district court’s decision to deny jurisdictional discovery for abuse of discretion. Toys "R"

Us, Inc. v. Step Two, S.A., 318 F.3d 446, 455 (3d Cir. 2003).

II.

Pennsylvania’s long-arm statute authorizes the exercise of general or specific

jurisdiction to the extent allowed by the federal Constitution. 42 PA. CONS. STAT. ANN.

§ 5322(b). When a defendant challenges personal jurisdiction, the plaintiff has the

burden of proof to establish “jurisdictional facts through sworn affidavits or other

competent evidence.” Patterson by Patterson v. F.B.I., 893 F.2d 595, 604 (3d Cir. 1990)

(quotation omitted).

When determining whether specific jurisdiction arises from an alleged contract,

courts consider “prior negotiations and contemplated future consequences, along with the

terms of the contract and the parties’ actual course of dealing” to determine whether

minimum contacts exist between the defendant and the forum state. Burger King Corp. v.

Rudzewicz, 471 U.S. 462, 479 (1985). Even assuming, arguendo, that a contract ever

existed in this case, which is far from clear, the “prior negotiations and contemplated

future consequences” are insufficient to establish minimum contacts between the

Defendants and Pennsylvania. The District Court found that “[t]he evidence submitted by

Plaintiffs shows only that Plaintiff contacted Defendants seeking their approval and

cooperation . . .” and that “[o]ther than responding to Plaintiff’s request for Defendants’

support of her book, Defendants did not solicit the contract or initiate a business

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relationship leading up to the contract.”3 Plaintiffs have not shown that these findings of

fact regarding the “prior negotiations” are clearly erroneous, so we will accept them as

true. Such unilateral communications cannot constitute purposeful availment by the

Defendants. See Sunbelt Corp. v. Noble, Denton & Assocs., Inc., 5 F.3d 28, 32 (3d Cir.

1993) (noting that “unilateral contacts by the party asserting the existence of personal

jurisdiction are insufficient”). Moreover, Plaintiffs have not shown that the purported

contract would have required any future action in Pennsylvania by Defendants.

Plaintiffs argue, based on a “stream of commerce” theory, that specific jurisdiction

arises from the assorted claims related to Dora Loewenstein’s alleged copying of Regan’s

book.4 But Plaintiffs have not shown that any of the Defendants had the ability to control

where the book would be distributed. Even if we were to find that personal jurisdiction

existed, these claims could not survive a motion to dismiss because Plaintiffs have not

shown that any element of Dora Loewenstein’s book is substantially similar to a legally

protectable element of Regan’s book.5 Plaintiffs fail to state a Lanham Act claim because

3
Plaintiffs allege that Regan met with Cohl, King, and Loewenstein in Pennsylvania to
discuss her book, but they do not provide any details. (Pls.’ Second Am. Compl. ¶ 13.)
Significantly, they have not shown clear error in the District Court’s factual finding that
these meetings took place after King had made clear on January 28, 2002 that the
Defendants would not cooperate with Regan. Contacts that took place following the
alleged breach of contract cannot qualify as “prior negotiations.”
4
Dora Loewenstein is not a party, so we will construe these as secondary liability
claims.
5
Plaintiffs cite five similarities: (1) both books contain an ink sketch “in the exact
same style”; (2) they contain “interviews with fans about their experiences with the
Stones and their music”; (3) they feature artwork by Ron Wood; (4) they feature

6
they do not allege that they own a trademark. Also, they fail to show how any aspect of

Regan’s fan tribute book qualifies as a “trade secret.”

Finally, Plaintiffs assert that Defendants arranged for Regan to lose various

professional opportunities, such as the opportunity to host a radio show about the Rolling

Stones and to take over a Rolling Stones fan club and magazine. Defendants allegedly

accomplished this by defaming Regan and telling third parties that they would be “frozen

out” if they dealt with her. Plaintiffs have failed to show that Defendants took any

actions that were aimed at Pennsylvania,6 nor that the alleged opportunities had any

connection to Pennsylvania. Thus, specific jurisdiction does not arise from these claims.

III.

Plaintiffs claim that the District Court had general jurisdiction over the Defendants

because of the latter’s “continuous and systematic” contacts with Pennsylvania. See

Provident Nat’l Bank v. California Fed. Sav. & Loan Ass’n, 819 F.2d 434, 437 (3d Cir.

1987). In particular, they assert that: (1) Defendants or their agents have been present in

photographs of the same concert; and (5) some photographs in Loewenstein’s book were
the same ones that Defendants allegedly provided to Regan. (Pls.’ Second Am. Compl.
¶ 175.)
6
The pleadings are vague about where, when, and to whom the alleged defamatory
statements were made. The Second Amended Complaint specifies that Cohl and King
made defamatory statements “in the Rolling Stones tour office” during the A Bigger Bang
tour. (See Pls.’ Second Am. Compl. ¶ 188, 190.) It does not state where the tour office
was located. Although the Second Amended Complaint says that Cohl made defamatory
statements to “members of the public and recording professionals,” it does not specify
whether the intended audiences for these alleged statements were Pennsylvania residents.
(Pls.’ Second Am. Compl. ¶ 190.)

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Pennsylvania, and set up temporary offices, during recent Rolling Stones tours in the

state; and (2) Defendants regularly sell Rolling Stones concert tickets, recordings, and

paraphernalia in Pennsylvania through distributors. Plaintiffs admit, however, that they

cannot meet their burden to demonstrate the existence of general jurisdiction without

jurisdictional discovery, which the District Court declined to grant. Jurisdictional

discovery should be allowed unless the plaintiff’s claim is “clearly frivolous,” which

might be the case if a plaintiff makes “a mere unsupported allegation that the defendant

‘transacts business’ in an area . . . .” Massachusetts Sch. of Law at Andover, Inc. v. Am.

Bar Ass’n, 107 F.3d 1026, 1042 (3d Cir. 1997). The alleged physical presence of

Defendants or their agents during occasional concerts is plainly not a “continuous and

systematic” contact, and jurisdictional discovery cannot change this fact. Moreover, the

District Court found that “[t]he Rolling Stones’ recordings and paraphernalia are

distributed and sold in Pennsylvania and throughout the U.S. by wholly independent

companies,” and Plaintiffs have not demonstrated that this finding is clearly erroneous.

Therefore, we conclude that the District Court did not abuse its discretion by declining to

permit jurisdictional discovery with regard to Defendants’ alleged sales in Pennsylvania.

IV.

For the reasons above, we will affirm the District Court’s order granting the

Defendants’ motion to dismiss Plaintiffs’ complaint.

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