(E.D.Pa. 1987); Clark v. Matsushita Elec. Indus., 811 F. Supp. 1061, 1068 (M.D.Pa. 1993). The second test would require plaintiff to show that the parent company exercises such total control over the subsidiary, that both companies should be considered one company for purposes of a jurisdictional analysis. Gallagher, 781 F. Supp. at 1084. Under the third test, plaintiff must prove that the subsidiary performs important functions which the parent would otherwise have to perform itself. Id.
In this case, plaintiff Brooks has not alleged any of the above. She has not even alleged the exact relationship of Bacardi to Bacardi-USA. It could be that plaintiff's statement that Bacardi distributes its products through its subsidiaries and subdivisions in the U.S. was an attempt to show that Bacardi's U.S. subsidiaries perform indispensable functions for Bacardi. Plaintiff could have then intended to argue that we should therefore assert personal jurisdiction over Bacardi based on its subsidiary's contacts. Nevertheless, plaintiff has not alleged facts that would show that Bacardi's U.S. subsidiaries perform indispensable functions for it, nor has she even stated clearly that that is her theory. Furthermore, she has not given us any facts about Bacardi USA's Pennsylvania contacts. We therefore find that plaintiff has failed to meet her burden on this issue. Accordingly, Defendant Bacardi's motion to dismiss the complaint is granted for lack of personal jurisdiction, and we need not resolve the statute of limitations issue.
II. Motion to Strike Amended Complaint
Plaintiff Brooks filed an amended complaint after Defendant Bacardi had filed its answer, but she did not seek leave of the court or consent of opposing counsel before doing so. Defendant Bacardi urges us to dismiss this amended complaint.
Federal Rule of Civil Procedure 15 (a) provides that a party may amend her pleadings if no responsive pleading has been served. If a responsive pleading has been served, the party seeking to amend must obtain permission from the court or consent of opposing counsel before amending the pleading. Rule 15 (a) further provides that leave to amend shall be freely granted when justice requires.
Courts have generally held that leave to amend is to be freely granted as long as (a) there is no undue delay in permitting the amendment, (b) the request for an opportunity to amend is not advanced in bad faith, (c) there have not been repeated failures to cure deficiencies in previous amendments (d) there is no prejudice to opposing counsel in allowing an amendment and (e) the proposed amendment would not be futile. Dole v. Arco Chemical Co., 921 F.2d 484, 486-7 (3d. Cir. 1990).
Since leave to amend is usually freely granted, we have considered plaintiff's amended complaint in resolving the personal jurisdiction issue. We find that plaintiff's amended complaint does not add anything that would warrant this court's assertion of jurisdiction over Bacardi. In fact, the problem is not with plaintiff's first or amended complaint, rather, it is that plaintiff has failed to meet her burden of persuasion by providing evidence to show that Bacardi is to be subject to this court's jurisdiction. Nevertheless, we will not strike plaintiff's amended complaint since it adds another party, Passport Travel, who has not appeared in this action to date. We will leave it to Passport Travel to respond if it chooses to do so. We will however dismiss defendant Bacardi's motion to strike plaintiff's amended complaint and we will consider that motion moot, since we have already determined that Bacardi is not subject to this court's jurisdiction.
An appropriate Order follows.
AND NOW, this 6Th day of November, 1996, upon consideration of the Motion of Defendant Bacardi Rum Corporation to Dismiss the Complaint, said Motion is GRANTED.
FURTHER, Defendant Bacardi Rum Corporation's Motion to Strike the Amended Complaint is DISMISSED as MOOT, in light of the attached memorandum.
BY THE COURT:
J. Curtis Joyner, J.
© 1992-2004 VersusLaw Inc.