Preview
GLO-L-001045-22 07/21/2023 Pglof7 Trans ID: LCV20232189159
GLO-L-001045-22 06/07/2023 4:14:00 PM Pg 1 of 2 Trans ID: LCV20231741901
J, Alex Kress, Esq. (NJ State Bar ID No, 040251990)
CHAPMAN AND CUTLER LLP
1270 Avenue of the Americas
New York, NY 10020
Phone: (212) 655-6000
Fax: (212) 697-7210
Attorneys for Defendants,
EyeGuide Technologies Pty. Ltd. and Shane Keating
EyeGuIng, INC, SUPERIOR COURT OF NEW JERSEY
LAW DIVISION
Plaintiff, GLOUCESTER COUNTY
vs. Case No. GLO-L-001045-22
EYEGUIDE TECHNOLOGIES PTY Ltp and Civil Action
SHANE KEATING,
ORDER DISMISSING COMPLAINT
Defendants. PURSUANT TOR. 4:6-2(b)
This Matter having been opened to the Court on the motion of defendants, EyeGuide
Technologies Pty. Ltd. (“Tech”) and Shane Keating (“Keating” and, together with Tech,
Defendants”), to dismiss the complaint in this matter for lack of personal jurisdiction over
Defendants pursuant to R. 4:6-2(b) (the “Motion to Dismiss”); and the Court having reviewed the
papers and arguments submitted in support of the Motion to Dismiss and the papers and arguments
submitted in opposition to the Motion to Dismiss, if any; and for good cause shown,
Iris, this 218t__ day of July , 2023,
GLO-L-001045-22 07/21/2023 Pg2of7 Trans ID: LCV20232189159
GLO-L-001045-22 06/07/2023 4:14:00 PM Pg 2of2 Trans !D: LCV20231741901
ORDERED as follows:
1 The Complaint in the above-captioned matter be, and hereby is, dismissed as against
each of the Defendants, without leave to refile in New Jersey, for lack of personal jurisdiction.
SamuelOQ. Kagonace
SAMUEL J. RAGONESE, J.S.C.
Papers Considered:
Memorandum of Law in support of Motion to Dismiss
Certification in support of Motion to Dismiss
Affidavitin support of Motion to Dismiss
Other Papers [specil¥] Op nosition
Please see attached opinion
-2-
GLO-L-001045-22 07/21/2023 Pg3of7 Trans ID: LCV20232189159
EyeGuide, Inc. v. Eyeguide Technologies Pty Ltd and Shane Keating
GLO-L-001045-22
EyeGuide, Inc., SUPERIOR COURT OF NEW JERSEY
LAW DIVISION — CIVIL PART
Plaintiff, GLOUCESTER COUNTY
Vv. DOCKET NO.: GLO-L-001045-22
EyeGuide Technologies Pty Ltd and Shane
Keating,
DEFENDANT’S MOTION TO DISMISS
Defendants. COMPLAINT
RELIEF REQUESTED
DEFENDANT, the EyeGuide Technologies and Shane Keating, represented by J, Alex Kress.
Esq., moves to dismiss the complaint for lack of personal jurisdiction.
PLAINTIFF, EyeGuide, Inc., represented by Franklin Barbosa, Jr., Esq., opposes this motion.
FACTUAL BASIS
Plaintiff, EyeGuide, Inc. (“Inc.”), and Defendant, EyeGuide Technologies Pty Ltd.
(“Tech”) and Shane Keating (“Keating”), entered into several contracts for Defendant to
distribute Plaintiff's flagship product, the EyeGuide Focus, in the United Kingdom,
Australia, and New Zealand.
Plaintiff alleges Defendant breached their contract.
Defendant moves to dismiss the complaint for lack of personal jurisdiction.
LEGAL ARGUMENT
Defendant’s Argument — EyeGuide Technologies, Pty Ltd and Shane Keating
Defendants first argue that none of the contracts or dealings forming the basis of the complaint
involve New Jersey. Defendant points to the Employment Agreement between the two parties,
noting that New Jersey is not referenced, that Plaintiff held themselves out as a Texas corporation,
and that it contains a choice of law provision that requires application of Pennsylvania law. See
Defendant’s Brief at 3. Further, Defendant maintains that the Escrow Agreement between the two
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EyeGuide, Inc. v. Eyeguide Technologies Pty Ltd and Shane Keating
GLO-L-001045-22
parties does not reference New Jersey, and that the Distribution Agreement between both parties
lists Plaintiff as a Texas company and does not reference New Jersey.
Defendant also argues that Plaintiff only became authorized to do business in New Jersey after the
events alleged in the complaint occurred.
Lastly, Defendants argue that they have no contacts with New Jersey. Defendants assert that they
have never traveled to New Jersey, transacted business in the state, availed themselves to the state,
registered to transact business in the state, or otherwise engaged in purposeful conduct that results
in contacts with New Jersey.
Plaintiff's Argument — EyeGuide, Inc.
Plaintiff, EyeGuide, Inc., opposes the motion.
Plaintiff first argues that Defendants availed themselves of the privilege of doing business in New
Jersey by ordering products from Plaintiff. Plaintiff points to a purchase order dated March 16,
2023, where Defendant ordered multiple units from Plaintiff. Based on this and based on the
exclusivity of the ongoing contract between the two, Plaintiff argues that Defendant contemplated
engaging in an ongoing business relationship with a New Jersey entity.
Next, Plaintiff argues that Defendant understood that a potential dispute could be litigated in any
Court in the United States. Plaintiff points to the Distribution Agreement between the two,
providing that it shall be “governed and construed in accordance with the laws of the United States
of America.” See Plaintiffs Opposition at 17.
Lastly, Plaintiff argues that Defendants have perpetuated contractual breaches and engaged in
tortious harm aimed at a New Jersey business.
ANALYSIS
The Court is tasked with determining if Defendant has established sufficient contacts with the
State of New Jersey to warrant personal jurisdiction.
Asa preliminary matter, the Court will focus on specific jurisdiction because Defendant is not a
resident of New Jersey nor has never been to New Jersey. Defendant is an Australian company,
and the other named Defendant has never been to New Jersey.
Specific jurisdiction is available when the “cause of action arises directly out of a defendant's
we
contacts with the forum state.” Waste Mgmt., 138 N.J. at 119, 649. In this context, a minimum
contacts inquiry must focus on the relationship among the defendant, the forum, and the
litigation.’ ” Lebel vy. Everglades Marina, Inc., 115 N.J. 317, 323, 558 (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
2
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EyeGuide, Inc. v. Eyeguide Technologies Pty Ltd and Shane Keating
GLO-L-001045-22
Volkswagen Corp. v. Woodson, 444 U.S. 286, 297-98, 100 (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 hauled into court [in the forum state].’ ” Bayway Ref. Co. v. State Utils.. Inc,
333 N.J.Super. 420, 429, 755 A.2d 1204 (quoting World-Wide Volkswagen Corp., supra, 444
US. at 297, 100).
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 N.J. at 120, 649. This “purposeful availment” requirement ensures that an out-
of-state defendant will not be hauled into court based on “random, fortuitous, or attenuated
contacts or as a result of the unilateral activity of some other party.” Id. at 121, 649; see also
Blakey v. Cont'l Airlines, 164 'N.J. 38, 67, 751 (2000).
Contractual Agreement Between Parties
Based on what is presented to the Court, Defendants’ contacts with New Jersey are extremely
limited. In essence, they are limited to this specific set of agreements between Plaintiff and
Defendant, and a purchase agreement on March 16, 2023.
As seen in Bayway Refining Co. v. State Utilities, Inc., 333 N.J. Super. 420, at 431:
“State's acceptance of Bayway's offer to establish a commercial relationship (including
the issuance of credit) cannot alone confer jurisdiction. See Vetrotex Certainteed Corp. v.
Consolidated Fiber Glass Prods, Co., 75 F.3d 147, 152 (3d Cir.1995) (passive California
buyer under contract with Pennsylvania seller is not subject to specific jurisdiction in
Pennsylvania). If the law were otherwise, every commercial purchase would subject the
buyer to jurisdiction in the home state of the seller on every dispute related to the
transaction.”
While our courts have “push{ed] at the ‘outermost limit’ of personal jurisdiction,” Lebel
115 NJ. at 329, 558, we have not eliminated all limits. The existence of a contractual
relationship alone is not enough to sustain jurisdiction unless the foreign corporation
entering into that relationship can reasonably have contemplated “significant activities or
effects” in the forum state. Corporate Dev. Specialists, Inc. v. Warren-Teed Pharm. Inc.,
102 N.J.Super. 143, 155, 245 (App.Div.1968). While a contract “will not automatically
establish sufficient minimum contacts with the forum state, it will be examined in the
context of the overall business transactions related to and surrounding the [agreement}
and the parties’ relationship.” Creative Business, 267 N.J.Super. at 570, 632.
As is made clear, a contractual relationship without more would be insufficient to establish
personal jurisdiction. Plaintiff argues that Defendant availed themselves of the privilege of doing
business in New Jersey by ordering a product from Plaintiff, including a March 16, 2023 order,
3
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EyeGuide, Inc. v. Eyeguide Technologies Pty Ltd and Shane Keating
GLO-L-001045-22
after Plaintiff established themselves in New Jersey as a principal place of business. Plaintiff
argues that Defendant could have reasonably contemplated “significant activities or effects” in
New Jersey given Plaintiffs domicile, the parties’ existing relationship, and Defendant’s status
as the exclusive distributor of Focus in the United Kingdom, Australia and New Zealand. See
Plaintiff's Opposition at 16-17.
Yet, the Court struggles to see how an agreement to distribute a certain product in Australia, the
United Kingdom and New Zealand would hold significant impact to the State of New Jersey,
especially since the alleged wrongs were committed before Plaintiff held its principal place of
business in New Jersey. According to Defendant’s Brief at 5, Plaintiff only became authorized to
do business in New Jersey after the events in the complaint occurred. Likewise, the set of
agreements presented to the Court does not mention New Jersey — rather, it mentions Texas and
has a choice of law provision aimed at Pennsylvania,
Choice of Law/Contractual Reference to United States
The Plaintiff next alleges that Defendants understood that the parties’ dispute could be litigated
in any Court in the United States, as there is a choice of law provision and acknowledgement that
it would be governed by and construed in accordance with the laws of the United States.
As the Court in Bayway proclaimed: “The choice of law clauses incorporated into the personal
guarantees (New York law) and the terminal access agreement (New Jersey law) hardly factor
into our decision. Aside from these obviously different choices of law, the choice of law is not
forum selection and does not establish jurisdiction.” See, e.g., William Sternberg & Assoc., Inc.
v. Litho Supply Inc., 219 N.J.Super. 201, 206, 530 (Law Div.1987).
Plaintiff argues that if Defendant wanted to limit potential legal battlefields, they would have
negotiated a forum selection clause. The Court wonders why Plaintiff did not negotiate for a
forum selection clause themselves instead of inserting arbitrary language mentioning the United
States to secure a legal arena.
Tortious Interference
Plaintiff alleges that Defendant committed tortious interference aimed at New Jersey, but even if
that is true, the Court does not see how this alleged interference was specifically aimed at New
Jersey or its citizens.
Fair Play and Substantial Justice
Likewise, when it comes to fair play and substantial justice, the Court is concerned that
Defendants are foreign to the United States and are located in Australia. This would conceivably
create issues with convenience for a longstanding trial or ongoing motion practice. Travel is
substantially more expensive from Australia to the State of New Jersey and would no doubt hoist
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EyeGuide, Inc. v. Eyeguide Technologies Pty Lid and Shane Keating
GLO-L-001045-22
significant expense on the defendants. In sum, the contacts here are so limited, this Court cannot
find there would be basic justice in exercising personal jurisdiction over these defendants.
DETERMINATION
Therefore, Defendant’s Motion to dismiss the complaint for lack of personal jurisdiction is
GRANTED.
Preview
GLO-L-001045-22 07/21/2023 Pglof7 Trans ID: LCV20232189159 GLO-L-001045-22 06/07/2023 4:14:00 PM Pg 1 of 2 Trans ID: LCV20231741901 J, Alex Kress, Esq. (NJ State Bar ID No, 040251990) CHAPMAN AND CUTLER LLP 1270 Avenue of the Americas New York, NY 10020 Phone: (212) 655-6000 Fax: (212) 697-7210 Attorneys for Defendants, EyeGuide Technologies Pty. Ltd. and Shane Keating EyeGuIng, INC, SUPERIOR COURT OF NEW JERSEY LAW DIVISION Plaintiff, GLOUCESTER COUNTY vs. Case No. GLO-L-001045-22 EYEGUIDE TECHNOLOGIES PTY Ltp and Civil Action SHANE KEATING, ORDER DISMISSING COMPLAINT Defendants. PURSUANT TOR. 4:6-2(b) This Matter having been opened to the Court on the motion of defendants, EyeGuide Technologies Pty. Ltd. (“Tech”) and Shane Keating (“Keating” and, together with Tech, Defendants”), to dismiss the complaint in this matter for lack of personal jurisdiction over Defendants pursuant to R. 4:6-2(b) (the “Motion to Dismiss”); and the Court having reviewed the papers and arguments submitted in support of the Motion to Dismiss and the papers and arguments submitted in opposition to the Motion to Dismiss, if any; and for good cause shown, Iris, this 218t__ day of July , 2023, GLO-L-001045-22 07/21/2023 Pg2of7 Trans ID: LCV20232189159 GLO-L-001045-22 06/07/2023 4:14:00 PM Pg 2of2 Trans !D: LCV20231741901 ORDERED as follows: 1 The Complaint in the above-captioned matter be, and hereby is, dismissed as against each of the Defendants, without leave to refile in New Jersey, for lack of personal jurisdiction. SamuelOQ. Kagonace SAMUEL J. RAGONESE, J.S.C. Papers Considered: Memorandum of Law in support of Motion to Dismiss Certification in support of Motion to Dismiss Affidavitin support of Motion to Dismiss Other Papers [specil¥] Op nosition Please see attached opinion -2- GLO-L-001045-22 07/21/2023 Pg3of7 Trans ID: LCV20232189159 EyeGuide, Inc. v. Eyeguide Technologies Pty Ltd and Shane Keating GLO-L-001045-22 EyeGuide, Inc., SUPERIOR COURT OF NEW JERSEY LAW DIVISION — CIVIL PART Plaintiff, GLOUCESTER COUNTY Vv. DOCKET NO.: GLO-L-001045-22 EyeGuide Technologies Pty Ltd and Shane Keating, DEFENDANT’S MOTION TO DISMISS Defendants. COMPLAINT RELIEF REQUESTED DEFENDANT, the EyeGuide Technologies and Shane Keating, represented by J, Alex Kress. Esq., moves to dismiss the complaint for lack of personal jurisdiction. PLAINTIFF, EyeGuide, Inc., represented by Franklin Barbosa, Jr., Esq., opposes this motion. FACTUAL BASIS Plaintiff, EyeGuide, Inc. (“Inc.”), and Defendant, EyeGuide Technologies Pty Ltd. (“Tech”) and Shane Keating (“Keating”), entered into several contracts for Defendant to distribute Plaintiff's flagship product, the EyeGuide Focus, in the United Kingdom, Australia, and New Zealand. Plaintiff alleges Defendant breached their contract. Defendant moves to dismiss the complaint for lack of personal jurisdiction. LEGAL ARGUMENT Defendant’s Argument — EyeGuide Technologies, Pty Ltd and Shane Keating Defendants first argue that none of the contracts or dealings forming the basis of the complaint involve New Jersey. Defendant points to the Employment Agreement between the two parties, noting that New Jersey is not referenced, that Plaintiff held themselves out as a Texas corporation, and that it contains a choice of law provision that requires application of Pennsylvania law. See Defendant’s Brief at 3. Further, Defendant maintains that the Escrow Agreement between the two GLO-L-001045-22 07/21/2023 Pg4of7 Trans ID: LCV20232189159 EyeGuide, Inc. v. Eyeguide Technologies Pty Ltd and Shane Keating GLO-L-001045-22 parties does not reference New Jersey, and that the Distribution Agreement between both parties lists Plaintiff as a Texas company and does not reference New Jersey. Defendant also argues that Plaintiff only became authorized to do business in New Jersey after the events alleged in the complaint occurred. Lastly, Defendants argue that they have no contacts with New Jersey. Defendants assert that they have never traveled to New Jersey, transacted business in the state, availed themselves to the state, registered to transact business in the state, or otherwise engaged in purposeful conduct that results in contacts with New Jersey. Plaintiff's Argument — EyeGuide, Inc. Plaintiff, EyeGuide, Inc., opposes the motion. Plaintiff first argues that Defendants availed themselves of the privilege of doing business in New Jersey by ordering products from Plaintiff. Plaintiff points to a purchase order dated March 16, 2023, where Defendant ordered multiple units from Plaintiff. Based on this and based on the exclusivity of the ongoing contract between the two, Plaintiff argues that Defendant contemplated engaging in an ongoing business relationship with a New Jersey entity. Next, Plaintiff argues that Defendant understood that a potential dispute could be litigated in any Court in the United States. Plaintiff points to the Distribution Agreement between the two, providing that it shall be “governed and construed in accordance with the laws of the United States of America.” See Plaintiffs Opposition at 17. Lastly, Plaintiff argues that Defendants have perpetuated contractual breaches and engaged in tortious harm aimed at a New Jersey business. ANALYSIS The Court is tasked with determining if Defendant has established sufficient contacts with the State of New Jersey to warrant personal jurisdiction. Asa preliminary matter, the Court will focus on specific jurisdiction because Defendant is not a resident of New Jersey nor has never been to New Jersey. Defendant is an Australian company, and the other named Defendant has never been to New Jersey. Specific jurisdiction is available when the “cause of action arises directly out of a defendant's we contacts with the forum state.” Waste Mgmt., 138 N.J. at 119, 649. In this context, a minimum contacts inquiry must focus on the relationship among the defendant, the forum, and the litigation.’ ” Lebel vy. Everglades Marina, Inc., 115 N.J. 317, 323, 558 (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 2 GLO-L-001045-22 07/21/2023 Pg5of7 Trans ID: LCV20232189159 EyeGuide, Inc. v. Eyeguide Technologies Pty Ltd and Shane Keating GLO-L-001045-22 Volkswagen Corp. v. Woodson, 444 U.S. 286, 297-98, 100 (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 hauled into court [in the forum state].’ ” Bayway Ref. Co. v. State Utils.. Inc, 333 N.J.Super. 420, 429, 755 A.2d 1204 (quoting World-Wide Volkswagen Corp., supra, 444 US. at 297, 100). 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 N.J. at 120, 649. This “purposeful availment” requirement ensures that an out- of-state defendant will not be hauled into court based on “random, fortuitous, or attenuated contacts or as a result of the unilateral activity of some other party.” Id. at 121, 649; see also Blakey v. Cont'l Airlines, 164 'N.J. 38, 67, 751 (2000). Contractual Agreement Between Parties Based on what is presented to the Court, Defendants’ contacts with New Jersey are extremely limited. In essence, they are limited to this specific set of agreements between Plaintiff and Defendant, and a purchase agreement on March 16, 2023. As seen in Bayway Refining Co. v. State Utilities, Inc., 333 N.J. Super. 420, at 431: “State's acceptance of Bayway's offer to establish a commercial relationship (including the issuance of credit) cannot alone confer jurisdiction. See Vetrotex Certainteed Corp. v. Consolidated Fiber Glass Prods, Co., 75 F.3d 147, 152 (3d Cir.1995) (passive California buyer under contract with Pennsylvania seller is not subject to specific jurisdiction in Pennsylvania). If the law were otherwise, every commercial purchase would subject the buyer to jurisdiction in the home state of the seller on every dispute related to the transaction.” While our courts have “push{ed] at the ‘outermost limit’ of personal jurisdiction,” Lebel 115 NJ. at 329, 558, we have not eliminated all limits. The existence of a contractual relationship alone is not enough to sustain jurisdiction unless the foreign corporation entering into that relationship can reasonably have contemplated “significant activities or effects” in the forum state. Corporate Dev. Specialists, Inc. v. Warren-Teed Pharm. Inc., 102 N.J.Super. 143, 155, 245 (App.Div.1968). While a contract “will not automatically establish sufficient minimum contacts with the forum state, it will be examined in the context of the overall business transactions related to and surrounding the [agreement} and the parties’ relationship.” Creative Business, 267 N.J.Super. at 570, 632. As is made clear, a contractual relationship without more would be insufficient to establish personal jurisdiction. Plaintiff argues that Defendant availed themselves of the privilege of doing business in New Jersey by ordering a product from Plaintiff, including a March 16, 2023 order, 3 GLO-L-001045-22 07/21/2023 Pg6of7 Trans ID: LCV20232189159 EyeGuide, Inc. v. Eyeguide Technologies Pty Ltd and Shane Keating GLO-L-001045-22 after Plaintiff established themselves in New Jersey as a principal place of business. Plaintiff argues that Defendant could have reasonably contemplated “significant activities or effects” in New Jersey given Plaintiffs domicile, the parties’ existing relationship, and Defendant’s status as the exclusive distributor of Focus in the United Kingdom, Australia and New Zealand. See Plaintiff's Opposition at 16-17. Yet, the Court struggles to see how an agreement to distribute a certain product in Australia, the United Kingdom and New Zealand would hold significant impact to the State of New Jersey, especially since the alleged wrongs were committed before Plaintiff held its principal place of business in New Jersey. According to Defendant’s Brief at 5, Plaintiff only became authorized to do business in New Jersey after the events in the complaint occurred. Likewise, the set of agreements presented to the Court does not mention New Jersey — rather, it mentions Texas and has a choice of law provision aimed at Pennsylvania, Choice of Law/Contractual Reference to United States The Plaintiff next alleges that Defendants understood that the parties’ dispute could be litigated in any Court in the United States, as there is a choice of law provision and acknowledgement that it would be governed by and construed in accordance with the laws of the United States. As the Court in Bayway proclaimed: “The choice of law clauses incorporated into the personal guarantees (New York law) and the terminal access agreement (New Jersey law) hardly factor into our decision. Aside from these obviously different choices of law, the choice of law is not forum selection and does not establish jurisdiction.” See, e.g., William Sternberg & Assoc., Inc. v. Litho Supply Inc., 219 N.J.Super. 201, 206, 530 (Law Div.1987). Plaintiff argues that if Defendant wanted to limit potential legal battlefields, they would have negotiated a forum selection clause. The Court wonders why Plaintiff did not negotiate for a forum selection clause themselves instead of inserting arbitrary language mentioning the United States to secure a legal arena. Tortious Interference Plaintiff alleges that Defendant committed tortious interference aimed at New Jersey, but even if that is true, the Court does not see how this alleged interference was specifically aimed at New Jersey or its citizens. Fair Play and Substantial Justice Likewise, when it comes to fair play and substantial justice, the Court is concerned that Defendants are foreign to the United States and are located in Australia. This would conceivably create issues with convenience for a longstanding trial or ongoing motion practice. Travel is substantially more expensive from Australia to the State of New Jersey and would no doubt hoist GLO-L-001045-22 07/21/2023 Pg7of7 Trans ID: LCV20232189159 EyeGuide, Inc. v. Eyeguide Technologies Pty Lid and Shane Keating GLO-L-001045-22 significant expense on the defendants. In sum, the contacts here are so limited, this Court cannot find there would be basic justice in exercising personal jurisdiction over these defendants. DETERMINATION Therefore, Defendant’s Motion to dismiss the complaint for lack of personal jurisdiction is GRANTED.