We disagree that such discrepancies render it "obvious" that Van Milders was acting in an individual capacity. Nevertheless, as we have noted, factual disputes created by the affidavits, documents and depositions submitted for the court's consideration are resolved in favor of the non-moving party when deciding a 12(b)(2) motion. Friedman, 957 F. Supp. at 706. Based on the record now before us, we find a factual dispute as to whether AGC was acting as an agent for some corporate entity (referred to throughout this Memorandum as "BVM") or for Van Milders individually. We therefore find that AGC's contacts may also be imputed to Van Milders individually such that SLI and Goodrich have established a prima facie case of jurisdiction over him in his individual capacity.
B. Fair Play and Substantial Justice
We group Van Milders and BVM together for the second prong of our jurisdictional analysis, in which we may examine, inter alia, "the burden on the defendant, the forum State's interest in adjudicating the dispute, [and] the plaintiff's interest in obtaining convenient and effective relief." Burger King, 471 U.S. at 477 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 62 L. Ed. 2d 490, 100 S. Ct. 559 (1980)). Because SLI and Goodrich have established a prima facie case of jurisdiction, the burden shifts to Van Milders and BVM to "'present a compelling case that the presence of some other considerations would render jurisdiction unreasonable.'" Mellon Bank, 960 F.2d at 1226 (citations omitted).
Not only has BVM presented no such case, but the instant facts create a compelling case to the contrary. As discussed supra, BVM has assigned its rights under the contract with SLI to AGC, enabling AGC to bring this suit. AGC then voluntarily moved to transfer the action to this Court from Texas. Further, both Wood and Van Milders testified in their depositions to an oral agreement that BVM will share equally in any recovery that results from this litigation, though there is nothing in writing to this effect. BVM did not, however, assign its contractual liability to AGC, possibly in an attempt to insulate itself from the very counterclaims that SLI and Goodrich have asserted. We agree with SLI and Goodrich that such an arrangement creates a "heads I win, tails you lose" proposition that runs fundamentally contrary to traditional notions of fair play. Finally, BVM's and Van Milders' argument that "it would entail considerable expense and lost time for Mr. Van Milders and [BVM] to defend themselves in Pennsylvania" is not persuasive given that they appear also to be represented by AGC's counsel and that Van Milders has already been deposed in this matter. Thus, exercising jurisdiction over both Van Milders and BVM comports with traditional notions of fair play and substantial justice.
An appropriate Order follows.
AND NOW, this 28th day of July, 1997, upon consideration of Bernard Van Milders' and B. Van Milders N.V.'s Motion to Dismiss for Lack of Personal Jurisdiction (Docket No. 20), and the Opposition and Supplemental Opposition thereto, it is hereby ORDERED that the Motion to Dismiss is DENIED.
BY THE COURT:
J. CURTIS JOYNER, J.