12. The nonfederal defendants and their employees fail to meet any of the three standards set forth in Terms and Conditions of the bid solicitation under Item 5, Qualifications of Reporters [P-2].
(a) Not a single one of the nonfederal defendants and their employees have four years of "prime court reporting experience."
(b) Not a single one of the nonfederal defendants and their employees have a Certificate of Merit from the NSRA, or any certification evincing equivalent skills.
(c) The nonfederal defendants and their employees also fail to meet the final alternative standard of at least four years of "reporting proceedings of at least equal difficulty" to prime court reporting experience.
(1) The nonfederal defendants and their employees' experience in performing shorthand reporting services is limited to pre-trial depositions and the reporting of arbitrations, conferences, shareholders' meetings and Labor Department hearings.
(2) Uncontested testimony showed that reporting court proceedings is more difficult than reporting depositions, shareholders' meetings, conferences, Labor Department hearings and arbitrations.
13. On or about March 20, 1981, the nonfederal defendants employed Diane Bivens [P-5] who also fails to meet any of the three alternative qualifications in the "Terms and Conditions," Item 5 [P-2]. As noted in Mr. Aaron's letter of March 20, 1981 to Mr. Szwajikos [P-5], the nonfederal defendants relied solely upon Mrs. Bivens' status as a professional reporter to qualify her under Item 5; however, such registration fails to meet any of the three alternative standards set by the bid solicitation. The federal defendants did not object to Mrs. Bivens acting as the court reporter in the bankruptcy court, even though she is unqualified under the federal defendants' own bid requirements.
14. The federal defendants violated their own bid standards, which required them to "accept the offer of that responsible offeror whose responsive offer . . . will be most advantageous to the Government, price and other factors considered," in that:
(a) The offer of the nonfederal defendants was not responsive in that the biographical sketches attached thereto did not show that the nonfederal defendants possessed the required qualifications;
(b) The federal defendants did not offer any evidence at trial to show that they considered any factors other than price in awarding the contract to the nonfederal defendants; and
(c) The federal defendants authorized the nonfederal defendants to utilize court reporters in the bankruptcy court who did not possess any of the required qualifications.
DISCUSSION AND CONCLUSIONS OF LAW
I. Personal Jurisdiction and Venue
It is appropriate, as an initial matter, to consider the federal defendants' motions to dismiss for lack of personal jurisdiction and for improper venue. Fed. R. Civ. P. 12(b)(2), 12(b)(3). The federal defendants do not argue that they lack the minimum contacts with the Commonwealth of Pennsylvania that are necessary under the Due Process Clause for this court to assert jurisdiction over them.
Rather, they argue that plaintiffs have not properly served them with process and, therefore, have not effected personal jurisdiction over them. See Driver v. Helms, 577 F.2d 147, 155 (1st Cir. 1978), rev'd on other grounds sub nom. Colby v. Driver, 444 U.S. 527, 100 S. Ct. 774, 63 L. Ed. 2d 1 (1980). In this regard, the federal defendants note that they have never been personally served with process, although they do not contest the fact that plaintiffs did serve them by certified mail. They contend, however, that such service is ineffective and that personal service is necessary. We do not agree.
Plaintiffs correctly point out that Federal Rule of Civil Procedure 4(e) authorizes extraterritorial service of process in accordance with applicable state rules:
Whenever a statute or rule of court of the state in which the district court is held provides (1) for service of a summons . . . upon a party not an inhabitant of or found within the state, . . . service may . . . be made under the circumstances and in the manner prescribed in the statute or rule.
Plaintiffs argue that the Pennsylvania long arm statute, 42 Pa. C.S.A. § 5322, is therefore applicable, and that it both establishes personal jurisdiction over the federal defendants and authorizes service by certified mail as was done here. Id. at §§ 5322, 5323(a)(3).
The critical issue in this regard is whether plaintiffs may legitimately rely on Rule 4(e) and, by virtue thereof, on the Pennsylvania long arm statute.
The federal defendants contend that, because of their status as federal officers, service of process upon them may not be effected pursuant to Rule 4(e), but is exclusively governed by Rule 4(d)(5), which provides that service shall be made upon "an officer or agency of the United States, by serving the United States and by delivering a copy of the summons and of the complaint to such officer or agency."
We agree that the provisions of Rule 4(d)(5) are mandatory insofar as they require service upon both the United States and the officer or agency named as a defendant. However, we refuse to hold that Rule 4(d)(5) proscribes the mechanisms for extraterritorial service of process authorized by Rule 4(e). Cf. DeJames v. Magnificence Carriers, Inc., 654 F.2d 280, slip op. at 16, 18 (3rd Cir. 1981). This result, we believe, best preserves the essence of both provisions of the Rule and renders them harmonious rather than contradictory.
Two reasons lead us to this result. First, we note that nothing in the language of Rule 4(e) restricts it to any particular class of defendants. In this sense, Rule 4(e) contrasts with Rule 4(d)(7), which explicitly does not apply to federal officers or agencies. It is, of course, a fundamental principle of construction that we should adhere to the plain language of the Rule and not lightly read into it an exception that could easily have been included by Congress or the Court. See United States v. Bush, 647 F.2d 357, 368 (3rd Cir. 1981). Thus, we conclude that state provisions for service of process may be used, pursuant to Rule 4(e), notwithstanding the fact that defendants are federal officers. See Green v. Carlson, 581 F.2d 669, 676 (7th Cir. 1978), aff'd, 446 U.S. 14, 100 S. Ct. 1468, 64 L. Ed. 2d 15 (1980); Sparrow v. Goodman, 376 F. Supp. 1268 (W.D. N.C. 1974). Cf. Marsh v. Kitchen, 480 F.2d 1270 (2nd Cir. 1973). Hence, the service of process in the instant action was proper. For "if the use of state law is appropriate under Rule 4(d)(7) or Rule 4(e) and state law is complied with, service is valid regardless of whether such service is permissible under the specific provisions for service in the first six paragraphs of Rule 4(d)." Wright & Miller, supra at § 1115.
A second reason for this result is that, where personal jurisdiction exists in the due process sense, it would not comport with the liberal spirit of the Federal Rules to construe them in the restrictive fashion urged by the federal defendants. There is no question but that the federal defendants have received actual notice of this action; nor is there any fundamental unfairness in requiring them to defend in this forum. Moreover, in 28 U.S.C. § 1391 Congress has expressed the policy that federal officers may generally be served by means of certified mail. Although defendants may not be federal officers within the meaning of section 1391,
the policy expressed in that statute is not irrelevant to our task of construing Rules 4(d)(5) and 4(e) in a harmonious and reasonable manner. For these two reasons, therefore, we conclude that service was properly effected upon the federal defendants in accord with Rule 4(e) and the Pennsylvania long arm statute, as incorporated therein. Accordingly, defendants' motion to dismiss for lack of personal jurisdiction will be denied.
Defendants have also moved to dismiss on the grounds of improper venue. For the reasons indicated in note 5, we will not base venue on 28 U.S.C. § 1391(e). Nonetheless, we conclude that venue properly lies in this district.
Section 1391(b) of Title 28 provides that "[a] civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district . . . in which the claim arose." The instant action clearly satisfies the first element of this test -- jurisdiction of the case is founded on the presence of a federal question, not on diversity of citizenship. Thus, the pivotal question is where the claim arose. The general rule is that "the place where the claim arose is the situs of events important to the case." Lamont v. Haig, 590 F.2d 1124, 1133, 192 U.S. App. D.C. 8 (D.C. Cir. 1978). See Leroy v. Great Western United Corp., 443 U.S. 173, 185, 99 S. Ct. 2710, 61 L. Ed. 2d 464 (1979). It is to be "ascertained by advertence to events having operative significance in the case, and a commonsense appraisal of the implications of those events for accessibility to witnesses and records." Lamont, supra, 590 F.2d at 1134. See Tefal, S.A. v. Products Int'l Co., 529 F.2d 495 (3rd Cir. 1976). There can be little doubt that the significant operative events regarding the instant action center in this district. Admittedly, the federal defendants formulate their policies in the District of Columbia. However, virtually every other event of significance to this action occurred in this judicial district. The bids were solicited here and were unsealed here, and the contract is to be performed here. Thus, viewed in a commonsense manner, the weight of contacts inclines towards this district. Philadelphia Hous. Auth. v. American Radiator & Standard San. Corp., 291 F. Supp. 252, 260 (E.D. Pa. 1968). See Patmore v. Carlson, 392 F. Supp. 737 (D. Ill. 1975). Accordingly, venue properly lies in this district.
II. The Applicable Legal Standards
As noted above, currently being considered by the court are plaintiffs' motion for a preliminary injunction and defendants' motions for dismissal of the complaint or, in the alternative, for summary judgment. Initially, therefore, we will briefly discuss the standards relevant to such motions.
An application for a preliminary injunction is addressed to the reasoned discretion of the district court. It is generally accepted that four factors are relevant to the decision whether to issue a preliminary injunction: (1) the probability of irreparable injury to the moving party in the absence of relief; (2) the possibility of harm to the non-moving party if relief is granted; (3) the likelihood of success on the merits; and (4) the public interest. See, e.g., Henry v. First Nat'l Bank, 595 F.2d 291, 302 (5th Cir. 1979), cert. denied sub nom. Claiborne Hardware Co. v. Henry, 444 U.S. 1074, 100 S. Ct. 1020, 62 L. Ed. 2d 756 (1980); Rennie v. Klein, 462 F. Supp. 1131, 1142 (D. N.J. 1978), rev'd on other grounds, No. 79-2577 (3rd Cir. July 9, 1981); Wright & Miller, 11 Fed. Prac. & Proc. § 2948 (1973). In essence, we must weigh the hardships that are likely to result from the grant or denial of preliminary relief in the light of the movant's likelihood of success on the merits of the litigation. Id. See E.H.T. of Florida, Inc. v. Insurance Co. of N. Am., 652 F.2d 310, slip op. at 5-6 (3rd Cir. 1981). To the extent that the balance of hardships weighs heavily in favor of the moving party, as it does here, preliminary relief may be appropriate given a reasonable probability of ultimate success. See Roth v. Bank of the Commonwealth, 583 F.2d 527 (6th Cir. 1978), cert. dismissed, 442 U.S. 925, 99 S. Ct. 2852, 61 L. Ed. 2d 292 (1979); Fitzgerald v. Mountain Laurel Racing, Inc., 464 F. Supp. 263, 269 (W.D. Pa.), aff'd, 607 F.2d 589 (3rd Cir. 1979), cert. denied, 446 U.S. 956, 100 S. Ct. 2927, 64 L. Ed. 2d 814 (1980).
By contrast, a motion to dismiss the complaint for failure to state a claim, because it involves purely legal issues, is not entrusted to the discretion of the trial court. The standard for granting such a motion is a stringent one. As the Supreme Court held in Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957), "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. at 45-46. See Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972); Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3rd Cir. 1977), cert. denied, 434 U.S. 1086, 98 S. Ct. 1280, 55 L. Ed. 2d 791 (1978). Moreover, "because 12(b)(6) results in a determination on the merits at an early stage of plaintiff's case, the plaintiff is afforded the safeguard of having all its allegations taken as true and all inferences favorable to plaintiff will be drawn." Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3rd Cir. 1977). In brief, a motion to dismiss is not designed to resolve factual questions, but merely to test the "legal sufficiency of plaintiff's case." Id.
The standard for summary judgment is only slightly less stringent. Summary judgment may only be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Moreover,
When considering a summary judgment motion, "inferences to be drawn from the underlying facts contained in the evidential sources submitted to the trial court must be viewed in the light most favorable to the party opposing the motion. The non-movant's allegations must be taken as true and, when these assertions conflict with those of the movant, the former must receive the benefit of the doubt."