injuries. Namely, the advertising had led the plaintiff to take advantage of the defendant's amusement park in Ohio where she was subsequently injured. The court held that the advertisements "had a realistic impact in (the) forum and the defendant should have reasonably foreseen that the transaction would have consequences in Pennsylvania." Busch, supra, at 340.
Similarly in Hart the advertising of the defendant was seen as giving rise to the plaintiff's injuries. The Pennsylvania Superior Court held that a Pennsylvania court had jurisdiction over the foreign corporation which had extensively advertised in Pennsylvania in order to entice persons to their drinking establishment in New Jersey. The court went on to find that the advertising was a meaningful and substantial enough contact to make the exercise of jurisdiction over the foreign corporation reasonable.
Lastly, in Buckingham we held that a non-resident corporation was subject to this court's jurisdiction based on its advertising in a publication which was readily available and distributed throughout Pennsylvania. In Buckingham the advertising gave rise to the plaintiff's cause of action as the advertising itself was alleged to have injured the plaintiff's business.
The case sub judice is clearly distinguishable from these cases. Unlike Busch and Hart the plaintiff has not shown that Blocker's advertising gave rise to the injury suffered. Although it was clear that Omni was aware of Blocker's advertising it was Graham and not Omni who engaged Blocker to do the work. Also Omni had employed Blocker in the past and thus it cannot be said that the advertising offered as evidence led the plaintiff to go and seek Blocker's services.
Buckingham is also distinguishable from the case sub judice as here the harm was not the advertising itself. Omni was allegedly injured by activities of Blocker not related to its advertising. It would be beyond the bounds of due process and notions of fair play and justice to find that we have personal jurisdiction over a company doing business on an international scale merely because advertisements of the company, in national trade journals, found their way into this forum. This is especially true where it is not apparent that such advertising caused or led to the relationship formed between Omni and Blocker.
In support of the allegation that the offering of stock by Blocker's parent company is a sufficient forum affiliation to give us jurisdiction over Blocker, the plaintiff cites the case of Superior Coal Co. v. Ruhrkohle, A.G., 83 F.R.D. 414 (E.D.Pa.1979). In Superior the court held that a corporation may in fact transact business in a forum through a related corporation. However this is only true where the corporations have common officers and directors; a common marketing image; common use of a trade-mark or logo; common use of employees; an interchange of managerial and supervisor personnel; or an integrated sales system. Superior, supra, at 421. Thus where a subsidiary acts merely as a "shell" or "front" for the parent corporation a court may deem the actions of the subsidiary the actions of the parent. And where those actions meet the test of due process, in personam jurisdiction may be asserted over the parent.
Omni seeks to have the court interpret Superior in such a manner that the actions of the parent should be found to constitute the actions of the subsidiary. This would be absurd given that the test in Superior is one of "control". Although it is logical and reasonable for one to find that a parent corporation often "controls" the actions of its subsidiaries, it would be contrary to universally acknowledged corporate structure to find that a subsidiary controlled the parent. Absent any evidence to show that Blocker controlled its parent company we cannot find that the acts of the parent were the acts of Blocker. Even if we were to accept Omni's contention that the acts of Blocker and its parent corporation are one and the same there has been no evidence presented to show that such act of issuing stock is a sufficiently substantial and continuous forum affiliation to subject Blocker to this court's jurisdiction.
Lastly, Omni alleges that Blocker has done work for it in the past. According to the plaintiff this work consisted of one prior job done by Blocker for Omni in late 1979. A single isolated transaction, wherein all work was done outside of the forum does not meet the test of being a substantial and continuous forum affiliation.
Taking all the above-mentioned factors into consideration, the plaintiff has failed to meet its burden of showing the defendant's activities to be so continuous and substantial to justify our holding that we have personal jurisdiction over Blocker. The "continuous and substantial" standard requires that the facts necessary to assert jurisdiction must be extensive and persuasive. Compagnie des Bauxites, supra at 890 (Gibbons, J. dissenting). Such a showing has not been made in regard to defendant Blocker.
Motion To Transfer
Relying on 28 U.S.C. § 1404(a) both defendants seek to have this action transferred to the Southern District of Texas. Section 1404(a) states that:
For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.
The initial determination to be made here is whether transfer is sought to a district or division where the action could have been brought. In the case sub judice there is no question that the case could have been brought in the Southern District of Texas, as it is the place where all the defendants reside. 28 U.S.C. § 1391(a).
Having made the above determination we are left to decide if transfer should be ordered for the "convenience of parties and witnesses, in the interest of justice." In making this decision we are "vested with a large discretion." Solomon v. Continental American Life Insurance Co., 472 F.2d 1043 (3d Cir.1973). This discretion is to be exercised in light of all the circumstances of the case. 1 Moore's Fed. Practice, § 0.145(5) (2d ed. 1982).
Transfer of Blocker
Having found that this court lacks personal jurisdiction over Blocker we are left with either transferring the case or dismissing it.
Transferring the case would certainly be more convenient for both Blocker and the witnesses it would call on its behalf as all reside in the Southern District of Texas. On the other hand, the plaintiff will obviously be inconvenienced by a transfer. However, a dismissal would cause the plaintiff even greater inconvenience. Thus in light of the above we believe the interests of justice will be better served by the transfer of the action as it pertains to Blocker.
Transfer of Graham
Having found that we have jurisdiction over Graham we must determine if transfer would be appropriate or not. In making such a determination there are six basic factors which should be examined: (1) the plaintiff's choice of forum; (2) the ease of access to sources of proof; (3) the costs involved in obtaining attendance of willing witnesses; (4) practical problems that make trial easy, expeditious and inexpensive; (5) difficulties of court administration, and (6) the desirability of state law being determined by a federal court located therein. Kawecki Berylco Industries v. Fansteel, Inc., 512 F. Supp. 984, 986 (E.D.Pa.1981); Bartolacci v. Church of the Presiding Bishop, 476 F. Supp. 381 (E.D.Pa.1979).
The plaintiff in the case sub judice has chosen the Eastern District as his forum. Such a choice is given great deference although it is not necessarily controlling. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S. Ct. 839, 843, 91 L. Ed. 1055 (1947); Shutte v. Armco Steel Corp., 431 F.2d 22 (3d Cir.1970), cert. denied, 401 U.S. 910, 91 S. Ct. 871, 27 L. Ed. 2d 808 (1971); Bartolacci, supra, at 383. It is up to the defendant to show that the "trial would more conveniently proceed and the interests of justice would be better served in the (transferee) district." Fitzgerald v. Central Gulf Steamship Corp., 292 F. Supp. 847, 848 (E.D. Pa.1968), quoting Peyser v. General Motors Corp., 158 F. Supp. 526, 529 (S.D.N.Y.1958); Bartolacci, supra at 383.
As to the ease of access of sources of proof, the costs of obtaining witnesses, and practical problems of trial it has not been shown by the evidence offered that transfer to the Southern District of Texas would make a significant difference as to any of these factors. Basically in light of factors (2) through (4) the action being held in Pennsylvania is burdensome to the defendant while the holding of the suit in Texas would be equally burdensome to the plaintiff.
As to the difficulty of court administration no evidence was offered by either side on this factor. Thus this factor appears to have a negligible effect on both sides.
Given the desirability of having Pennsylvania law determined by a court sitting in Pennsylvania, the plaintiff's choice of forum, and the negligible effects of the other factors considered we find that in the interests of convenience and justice the action in respect to Graham should not be transferred at this time. If defendant Graham presents documentary evidence, after further discovery, to support a transfer, this court will reconsider the motion.