Allure Pet Products, LLC v. Donnelly Marketing & Development LLC

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0429-23

ALLURE PET PRODUCTS,
LLC,

Plaintiff-Respondent, APPROVED FOR PUBLICATION
January 17, 2024
v.
APPELLATE DIVISION

DONNELLY MARKETING &
DEVELOPMENT LLC, d/b/a
CONCORD EXPO GROUP, and
KATHY LYNN KAZMAIER
DONNELLY, individually,

Defendants-Appellants.
___________________________

Argued January 8, 2024 – Decided January 17, 2024

Before Judges Sabatino, Mawla, and Marczyk.

On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Morris County,
Docket No. L-1281-21.

Joshua Matthew Lurie argued the cause for appellants
(Lurie Strupinksy, LLP, attorneys; Joshua Matthew
Lurie, on the brief).

Joseph M. Morgese argued the cause for respondent
(Wilson, Elser, Moskowitz, Edelman & Dicker, LLP,
attorneys; Joseph M. Morgese, of counsel and on the
brief).
 The opinion of the court was delivered by

SABATINO, P.J.A.D.

This interlocutory appeal solely concerns an issue of personal

jurisdiction. The issue is whether our state court has personal jurisdiction over

a defendant Utah company and its owner who entered into a contract to reserve

exhibition space for plaintiff, a New Jersey pet product supplier, at a biannual

trade show in Germany planned for 2020. The trade show was eventually

postponed because of the COVID-19 pandemic, and the company and its

owner declined to refund plaintiff's payment or apply it to the next show in

2022.

Defendants argue they lacked the required "minimum contacts" to be

sued in New Jersey, stressing that plaintiff originally initiated the parties '

relationship in 2011 by asking defendants to arrange for space at an earlier

trade show in 2012. They further contend it would offend constitutional

principles of fair play and substantial justice to compel them to litigate this

civil case in this state so distant from Utah.

For the reasons that follow, we affirm the trial court's finding of personal

jurisdiction under these circumstances. As a matter of law, it is not dispositive

that the New Jersey plaintiff originally initiated contact with the Utah

company and its owner years before the present transaction. The record shows

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the Utah defendants sought and procured renewal contracts with plaintiff for

the next four biannual trade shows, including 2020. In addition, the Utah

defendants repeatedly solicited new or renewal business from at least ten other

New Jersey pet companies during that time frame. Given that conduct, the

Utah defendants "purposely availed" themselves of doing business with New

Jersey customers to a level sufficient to satisfy the criteria for in personam

jurisdiction under the Due Process Clause. The norms of fair play and

substantial justice are not offended here.

I.

We derive the pertinent facts, as did the motion judge, from the

jurisdictional discovery exchanged between the parties.

Plaintiff Allure Pet Products, LLC ("Allure") is a wholesale and

consumer pet product supplier based in Denville, New Jersey. Allure is co-

owned by two New Jersey residents. In this lawsuit, Allure seeks recovery of

$14,256.80 it paid to defendant Donnelly Marketing & Development LLC

(d/b/a "Concord"), a Utah company, for services it claims it did not receive.

Concord's sole member and owner is co-defendant Kathy Lynn Kazmaier

Donnelly. Her father had previously founded the company in or about 2003 or

2004, and she took over the business after he passed away in 2013. Donnelly

operates the business from Utah.

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 As described in Donnelly's deposition testimony, Concord organizes a

variety of international trade shows. Among other things, Concord arranges

for exhibitors to have booths to display their products and services at the trade

shows. Concord's "turnkey package" includes assistance with marketing and

promotion within the trade show, hotel accommodations, translators, on -site

cleaning, security, and lounges with food and drink.

One of those trade shows is "Interzoo," in which vendors of pet products

and services from around the world participate. The Interzoo show is

customarily held biannually. Apparently, the only means for an exhibitor to

obtain space within the United States Pavilion at the show, other than through

Concord, is to share a booth with another exhibitor or to make arrangements

directly with Interzoo.

The parties' relationship began in September 2011 when Robert Flynn, a

co-owner of Allure, telephoned Donnelly and asked whether Allure could

obtain a booth at the upcoming Interzoo show planned for 2012. Donnelly

responded to Flynn through an email and offered her company's services. She

then contacted the Interzoo project team to arrange space for Allure at the

2012 show. That initial transaction went forward, with Allure paying Concord

for its services.

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 In or about early 2013, Donnelly sent all of its 2012 Interzoo exhibitors,

including Allure, what she described as a "special offer" to renew their space

for the next Interzoo show in 2014. The offer extended to past customers the

same space and services at the same rates. Allure took advantage of Concord's

renewal offer and, in fact, increased its amount of reserved space for the 2014

show.

The same pattern repeated for the 2016 and 2018 Interzoo shows, with

Concord extending its special offer, and Allure renewing space through

Concord, with some adjustments of its booth location. As Donnelly recalled,

she generally sent the special offers by certified mail, to ensure their receipt by

the past customers. Allure was among the clients that were mailed these

special offers. If an exhibitor chose to renew, it would send back to Concord a

signed copy of the contract and a check for the deposit.

The present dispute arose in connection with the Interzoo show that had

been planned for May 2020 in Nuremberg, Germany. As per its custom, after

the 2018 show, Concord extended Allure a special offer to renew for 2020.

On April 26, 2019, Donnelly sent Allure an email attaching the special

offer for 2020. The special offer specified a 30.24 square meter "island

turnkey stand" within the United States Pavilion, plus a catalogue listing and

communications package, for a total price of $14,256.80. Donnelly asked

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Allure to respond by emailing back the signed contract within four days and

paying a deposit within thirty days.

Allure's representative, Julie Krauss, emailed Donnelly back and

requested the tentative floor plan for the 2020 show. In reply, Donnelly

emailed Krauss a working diagram of the floor plan but noted she had shared

the diagram with a few other companies that also might want to move their

booth location.

Four days after receiving Concord's renewal offer for the 2020 show,

Krauss emailed Donnelly and advised her that "after much deliberation,"

Allure agreed to renew the same booth from the 2018 show for 2020. The

email noted "[w]e can work on the details later" and that Allure would arrange

to pay the deposit, followed by the remaining balance due in December.

Donnelly responded with more details and reminded Krauss to send back the

contract and deposit in order to "secure the space." The parties thereafter

mutually signed the contract, and Allure paid the full balance.

Subsequently, in early 2020, the worldwide COVID-19 pandemic caused

the sponsor to cancel the 2020 Interzoo show. The sponsor initially announced

it would reschedule the event in 2021. At Concord's suggestion, Allure agreed

to take part in the rescheduled show in 2021 under their preexisting contract.

As the pandemic lingered, the sponsor decided to postpone the show

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until 2022. At that point, Allure asked Concord to apply its deposit to the

2022 show. When Concord declined to do so, Allure demanded its money

back. Concord was unwilling to refund the money, asserting that Allure bore

the risk of the 2020 show's cancellation. It pointed to language within its form

contract stating that plaintiff's deposit of the total participation fee was non-

refundable.1

These events prompted Allure to sue Concord and Donnelly in the Law

Division, seeking repayment of the funds it paid and other relief. Defendants

moved to dismiss the complaint under Rule 4:6-2,2 alleging our courts lack

personal jurisdiction over them. Defendants also asserted plaintiff's complaint

failed to state a claim upon which relief may be granted. The trial court

ordered jurisdictional discovery, which the parties completed through the

exchange of documents and interrogatory answers, and the remote depositions

of Donnelly and Krauss.

One of the key documents supplied by defendants in discovery was a

chart Donnelly prepared that shows Concord's interactions with New Jersey

1
We need not address here the merits of the parties' positions and instead
confine our discussion to the jurisdictional issue.
2
Although not specified in the motion papers or appellate briefs, the pertinent
portion of Rule 4:6-2 for this jurisdictional ground is subsection (b).

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customers for the 2012, 2014, 2016, 2018, and 2020 Interzoo shows. 3

Depending on how the numbers are counted, the chart reflects that Concord

has done business with ten or more New Jersey customers, including Allure,

during that time span, most of them renewing their space every two years. As

Donnelly recounted during her deposition and as the chart reflects, some of

those New Jersey customers date back to the early 2000s when her father

owned the business.

Upon considering the discovery and hearing oral argument, the trial

court denied defendants' motion. In his initial written decision, the motion

judge concluded the court had specific, but not general, personal jurisdiction

over defendants in connection with the contract. The judge observed, in

particular, that the complaint alleges a contract involving a New Jersey

company. The judge made other rulings bearing upon non-jurisdictional issues

not before us.

Defendants moved for reconsideration. The judge again denied their

motion. Among other things, the judge made note of plaintiff's argument that

the discovery showed defendants "were conducting business with New Jersey-

3
According to Donnelly, some of the records from previous years were lost
due to computer problems, so she reconstructed the information and presented
it in the composite chart. The chart was the subject of extensive questioning at
Donnelly's deposition and has been helpful to our analysis.

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based pet products entities over the course of [eight] years."

Defendants moved for leave to appeal, which we granted but "solely

with respect to the jurisdictional ruling and the trial court's subsequent denial

of reconsideration."

II.

As we noted at the outset, defendants emphasize that plaintiff is the

party that initiated contact with them in 2011, unsolicited, and therefore they

did not purposefully avail themselves of business in this state. They further

stress that they are located in Utah, have not physically entered New Jersey,

and that the trade show in question had been planned to occur abroad in

Germany. Defendants also argue that even if minimum contacts and

purposeful availment are present, it would be unfair to force them to litigate

this case far away in New Jersey.

The general principles of in personam jurisdiction we apply here have

been long established. New Jersey courts "may exercise in personam

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

law.'" Bayway Refin. Co. v. State Utils., Inc., 333 N.J. Super. 420, 428 (App.

Div. 2000) (alterations omitted) (quoting R. 4:4-4(b)(1)). Our courts exercise

jurisdiction over nonresident defendants "to the uttermost limits permitted by

the United States Constitution." Jardim v. Overley, 461 N.J. Super. 367, 377

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(App. Div. 2019) (quoting Avdel Corp. v. Mecure, 58 N.J. 264, 268 (1971)).

A two-part test governs an analysis of personal jurisdiction: (1)

defendant must have "minimum contacts" with the forum state; and (2)

maintaining the suit in that state cannot offend "traditional notions of fair play

and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316

(1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). "[T]he

requisite quality and quantum of contacts is dependent on whether general or

specific jurisdiction is asserted . . . ." Citibank, N.A. v. Est. of Simpson, 290

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

General jurisdiction "requires affiliations 'so "continuous and

systematic" as to render'" a non-resident organizational defendant "'essentially

at home in the forum State.'" Daimler AG v. Bauman, 571 U.S. 117, 133 n.11

(2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S.

915, 919 (2011)).

Both parties agree that Concord and Donnelly are not subject to general

jurisdiction in New Jersey. Accordingly, as the motion judge correctly

recognized, the court must focus here on whether there is specific jurisdiction

over those defendants.

Specific jurisdiction depends on the "relationship among the defendant,

the forum, and the litigation." Lebel v. Everglades Marina, Inc., 115 N.J. 317,

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323 (1989) (quoting Shaffer v. Heitner, 433 U.S. 186, 204 (1977)). The

litigation must "aris[e] out of or relate[] to the defendant's contacts with the

forum." Daimler AG, 571 U.S. at 127 (quoting Helicopteros Nacionales de

Colombia, S.A. v. Hall, 466 U.S. 408, 414, n.8 (1984)).

Unlike the continuous and systematic contact requirements of general

jurisdiction, specific jurisdiction requires only "minimum contacts" resulting

"from the defendant's purposeful conduct and not the unilateral activities of the

plaintiff." Lebel, 115 N.J. at 323. A single act can support jurisdiction, so

long as the defendant created a "substantial connection" with the forum.

Maglio & Kendro, Inc. v. Superior Enerquip Corp., 233 N.J. Super. 388, 396

(App. Div. 1989) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476

n.18 (1985)). "This '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, 471 U.S. at 475).

Upon considering a defendant's contacts, courts analyze "whether the

defendant should 'reasonably anticipate being haled into court [in the forum

state].'" Bayway, 333 N.J. Super. at 429 (alteration in original) (quoting

World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297-98 (1980)).

The analysis is often fact-sensitive. See, e.g., JA/GG Doe 70 v. Diocese of

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Metuchen, __ N.J. Super. __, __ (App. Div. 2023) (finding purposeful

availment where a Virginia diocese retained control over a priest sent to serve

in New Jersey despite the Virginia diocese's awareness of priest's sexual

propensities towards children); D.T. v. Archdiocese of Philadelphia, __ N.J.

Super. __, __ (App. Div. 2023) (finding no such purposeful availment where

another archdiocese owned property in New Jersey in the past but had no

knowledge of a Pennsylvania priest's transportation of a minor to New Jersey) .

Apart from this analysis, due process also requires the extension of

jurisdiction be reasonable under the circumstances by comporting with

"traditional notions of fair play and substantial justice." Asahi Metal Indus.

Co. v. Super. Ct. of Cal., 480 U.S. 102, 113 (1987) (quoting Int'l Shoe, 326

U.S. at 316). A court "must consider the burden on the defendant, the interests

of the forum State, and the plaintiff's interest in obtaining relief." Ibid. The

court must also weigh "the interstate judicial system's interest in obtaining the

most efficient resolution of controversies; and the shared interest of the several

States in furthering fundamental substantive social policies." Ibid. (quoting

World-Wide Volkswagen, 444 U.S. at 292).

On appeal, we apply these principles based on the record amassed before

the motion judge. As a "mixed question of law and fact," Citibank, 290 N.J.

Super. at 532, personal jurisdiction entails findings of fact that are reviewed

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for "substantial, credible evidence in the record" and legal conclusions that are

reviewed de novo, Rippon v. Smigel, 449 N.J. Super. 344, 358 (App. Div.

2017). The trial court's findings of fact concerning jurisdiction must be upheld

if they are supported by substantial credible evidence, ibid., although "[a] trial

court's interpretation of the law and the legal consequences that flow from

established facts are not entitled to any special deference." Manalapan Realty,

L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Here, because the motion judge did not conduct an evidentiary hearing

or make any direct observations of witness credibility—and appellants do not

argue the judge was required to conduct such a hearing—we essentially

perform a de novo review of the same motion record.

III.

Applying these principles, it is abundantly clear that defendants engaged

in the minimum level of contacts with Allure (and with other New Jersey

customers) sufficient to support specific jurisdiction in this state. By their

repetitive actions in soliciting and re-soliciting Allure to renew trade show

business every two years for at least eight years, defendants "purposefully

availed" themselves of the benefits of that commercial relationship.

Defendants leveraged their role as the apparent exclusive broker of exhibition

space in the United States Pavilion. They further promoted that business by

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extending "special offers" to entice Allure and other returning customers.

We recognize that when purposeful availment is found, the defendant

often initiated the very first contact with the plaintiff in the forum state. See,

e.g., Avdel, 58 N.J. at 267 (in which the New York defendant "requested one

of the [New Jersey] plaintiff's salesmen to come to a job site in New York for

a demonstration" and, days later, ordered rivets from defendant by telephone);

Maglio, 233 N.J. Super. at 391 (in which a Pennsylvania defendant initially

telephoned the New Jersey plaintiff "seeking to engage plaintiff's services to

search for a new general manager for defendant's Pennsylvania office"). See

also Burger King, 471 U.S. at 467-87 (in which a Michigan defendant applied

for a franchise application from a plaintiff company headquartered in Florida,

with an apparent intention to create a multi-year relationship with plaintiff);

Power Invs., LLC v. SL EC, LLC, 927 F.3d 914, 919 (6th Cir. 2019) (in which

a Missouri defendant solicited financing from a Kentucky plaintiff to purchase

a power plant in Missouri); Waimberg v. Med. Transp. of Am., Inc., 52 F.

Supp. 2d 511, 513-16 (E.D. Pa. 1999) (in which a Nevada defendant faxed an

offer letter to a Pennsylvania plaintiff inviting him to become a financial

officer of a company in Las Vegas).

However, as this case illustrates, such first contact is not always

jurisdictionally dispositive. The 2012 contract between Allure and Concord

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was not a "one-off," as that term is used in current parlance. Cf. Jardim, 461

N.J. Super. at 383 (involving a single sale of a used car between strangers,

described as a "one-shot affair"). Instead, Concord repeated its efforts over

four consecutive trade shows to solicit Allure's renewal business, and to profit

from those renewals. The "special offers" Concord extended and promoted

were designed to extract more revenue from Allure and other New Jersey

exhibitors.

Defendants argue it is improper to consider the other ten or more New

Jersey customers depicted on the chart, asserting that those contacts bear only

upon general jurisdiction and not specific jurisdiction. We do not adopt such a

narrow view of that evidence. The chart substantiates that defendants'

repeated biannual interactions were not isolated. Instead, they were consistent

with a business pattern and practice of maintaining relationships an d a stream

of income from such New Jersey clientele.

We are also satisfied that the exercise of personal jurisdiction over

defendants in this state will not offend traditional principles of fair play or

substantial justice. Defendants knew they were dealing with a repeat customer

located in New Jersey. They did not include a forum selection clause in their

form contract, which could have required disputes to be litigated in Utah or

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some other designated venue. See, e.g., Burger King, 471 U.S. at 481 (treating

a forum selection clause as pertinent to the Due Process analysis).

We further note this is a non-jury case involving a modest amount of

money and a limited number of witnesses. The initial deposition of Donnelly,

who may well be defendants' sole witness, was conducted remotely. Counsel

is free to request that any additional depositions or testimony in a bench trial

be similarly conducted remotely, subject to the trial court's discretion. See

Pathri v. Kakarlamath, 462 N.J. Super. 208, 212-21 (App. Div. 2020)

(explaining factors that bear upon the trial court's discretion to allow remote

testimony). We discern no unfair burden.

In sum, although we do not adopt the motion judge's express reasoning

that hinged upon the complaint's reference to the existence of the contract, we

affirm the court's finding of personal jurisdiction over these defendants. See

Isko v. Planning Bd. of Livingston Twp., 51 N.J. 162, 175 (1968) (appellate

court may affirm a judgment on different grounds than those identified below).

Affirmed.

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