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BOEHRINGER, INC. v. MURAWSKI CORP.

August 18, 1988

BOEHRINGER, INC.
v.
MURAWSKI CORPORATION and BRUCE G. MURAWSKI



The opinion of the court was delivered by: MCGLYNN, JR.

 JOSEPH L. McGLYNN, JR., UNITED STATES DISTRICT JUDGE.

 Plaintiff brought this action to recover for the defendants' breach of contract. Presently before me is the defendants' motion to dismiss for lack of personal jurisdiction or, in the alternative, to transfer the case to the appropriate district court in Illinois. Based upon the following discussion, I will grant the defendants' motion and transfer this case to the Northern District of Illinois.

 Facts

 Plaintiff, Boehringer, Inc., was incorporated in New York in July, 1985 and currently has its principal place of business in Exton, Pennsylvania. Plaintiff is engaged in the business of selling rock crushing equipment which is manufactured in West Germany by its parent corporation, Boehringer & Ratzinger GMBH. Defendant Murawski Corporation is an Illinois corporation with its principal place of business in Rockford, Illinois. Murawski Corporation is engaged in the business of selling and servicing rock crushing equipment. The defendant corporation is not authorized to do business in Pennsylvania, has no office or personnel in Pennsylvania, owns no real property in Pennsylvania and has no agent for service of process or for any other purpose in the Commonwealth of Pennsylvania. Defendant Bruce G. Murawski is the President and sole shareholder of the defendant corporation.

 On August 29, 1984, the plaintiff and defendant corporation entered into a contract wherein the defendant agreed to act as a dealer for the plaintiff's products. It was stipulated that the defendant corporation's business would be wholly independent from that of the plaintiff. The contract was drafted on the letterhead of Boehringer and Ratzinger, the plaintiff's West German parent corporation. The contract required that "Boehringer" supply the defendant with technical and sales assistance through Thomas M. Hecker and that the prices for all purchased goods would be set by "Boehringer." "Boehringer" also agreed to supply certain identified equipment on a consignment basis against a conditional purchase order, security agreement and financing statement. Finally, it was agreed that the contract would last for one year from August 29, 1984 and that both parties would reserve the right to "review, modify and/or terminate the relationship at the end of the initial term."

 Although it is unclear from the record exactly where the contract was executed, it is clear that it was executed outside the Commonwealth of Pennsylvania. At the time of execution, the plaintiff maintained its principal place of business in the state of New York. Subsequently, however, the plaintiff moved its principal place of business from New York to Merion, Pennsylvania, where the plaintiff operated its business out of an apartment in the garage of Melitta Heiland, Boehringer's Treasurer. Despite being present in Pennsylvania since 1984, the plaintiff admits that it did not register to do business until 1986. Presently, the plaintiff's office is located in Exton, Pennsylvania.

 Since entering into the 1984 agreement, the defendant has purchased $ 1,254,676.52 worth of equipment and supplies through the plaintiff's Pennsylvania office. Plaintiff, however, has neglected to include any invoices or other documents relating to the defendant's purchases which would detail when and how the defendant's purchases were made. Plaintiff alleges that of the $ 1,254,676.52 worth of sales to the defendant, $ 191,593.47 remains outstanding and the plaintiff seeks to recover the outstanding balance through this litigation.

 Although the defendant placed his orders through the plaintiff, all of the equipment was manufactured in West Germany and was shipped directly to the defendant in Illinois. On several occasions after signing the 1984 agreement, the defendant attempted to deal directly with the plaintiff's parent corporation in West Germany in order to bypass the plaintiff, but each attempt was "rebuffed" by the West German corporation. Affidavit of Thomas M. Hecker, Vice President of Boehringer, Inc. para. 11 (Hecker Affidavit). Defendant Murawski visited West Germany in 1985 and 1986 with several customers in order to develop sales, Affidavit of Bruce Murawski, President of Murawski Corporation para. 24, and engineers from the plaintiff's West German parent corporation visited the defendant's principal place of business during the same time period. Id para. 23. On one occasion, the defendant paid the expenses of Mr. Hecker and several officials from the plaintiff's West German parent corporation to visit the defendant's Illinois headquarters. Finally, defendant Murawski visited the plaintiff's place of business in Merion, Pennsylvania; however, the defendant alleges that no business was conducted on this visit and the plaintiff offers no evidence to suggest otherwise.

 Plaintiff filed this suit to recover the funds allegedly owed by the defendant pursuant to the sales made to the defendant subsequent to the execution of the 1984 contract. After the defendant filed this motion, the plaintiff filed an amended complaint alleging additional tort theories of recovery.

 Discussion

 Once a jurisdictional defense is raised, the plaintiff bears the burden of proving that the defendant's contacts with the forum state are sufficient to give the court in personam jurisdiction. Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 63 (3d Cir. 1984). The plaintiff must come forward with jurisdictional facts either through affidavits, answers to interrogatories, depositions or other competent evidence to establish a prima facie case of jurisdiction. Id. at 66-67 n.9; Kyle v. Continental Capital Corp., 575 F. Supp. 616, 620 (E.D. Pa. 1983).

 A. General Jurisdiction

 At the outset it is important to note that the plaintiff has not established that the defendants maintained "continuous and systematic contacts" with this forum which are necessary for this court to exercise general jurisdiction over the defendant corporation or Mr. Murawski. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 80 L. Ed. 2d 404, 104 S. Ct. 1868 (1984). Plaintiff has not produced any evidence that the defendants maintained an office in Pennsylvania, conducted any business in Pennsylvania aside from the business with the plaintiff, maintained any property in Pennsylvania, or manufactured or sold any of its products in Pennsylvania. Further, the plaintiff can only show that the defendants visited the state of Pennsylvania once during the past four years. Clearly, the mere fact that the defendants placed orders for the purchase of goods, especially under the facts of this ...


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