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April 30, 1999


The opinion of the court was delivered by: Van Antwerpen, District Judge.


Presently before the Court is a Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(2) filed by Defendant BDAG Balcke-Durr AG ("BDAG") against Plaintiff Northeastern Power Company ("NEPCO").


NEPCO filed its Complaint on July 28, 1997 against Balcke-Durr, Inc. ("BDI"). NEPCO filed its Amended Complaint on June 5, 1998, amending it against BDAG and Defendant Balcke-Durr BD GmbH ("BD GmbH"). BDAG filed a Motion to Dismiss for lack of personal jurisdiction on July 23, 1998. On August 20, 1998, the Court issued an Order denying BDAG's Motion "for administrative purposes without prejudice to the right of said defendants to reassert or refile this motion when a limited period of discovery has been completed." Order dated August 20, 1998 at ¶ 1. We further stated in the Order that "jurisdiction over BDAG Balcke-Durr AG is questionable." Id. at ¶ 4. As discovery has now ended, BDAG filed the instant Motion to Dismiss for lack of personal jurisdiction on March 2, 1999. NEPCO filed its response on March 18, 1999 and BDAG filed a reply on April 2, 1999. For the reasons stated below, BDAG's Motion to Dismiss is Granted.


Because the Court is deciding BDAG's Motion to Dismiss, we "must accept all of [NEPCO's] allegations as true and construe disputed facts in favor of [NEPCO]." See, e.g., Carteret Savs. Bank, FA v. Shushan, 954 F.2d 141, 142 n. 1 (3d Cir. 1992), cert. denied, 506 U.S. 817, 113 S.Ct. 61, 121 L.Ed.2d 29 (1992).

In October 1994, BDAG, a holding company under the laws of the Federal Republic of Germany, transferred all of its assets to its wholly-owned subsidiary, BD GmbH, a German corporation. See Pl.'s Br. in Opp'n to Def.'s Mot. to Dismiss ("Pl.'s Br.") at 3; Def.'s Br. in Supp. of Mot. to Dismiss ("Def.'s Br.") at 2. Nevertheless, the parent and the subsidiary shared a business address, telephone and facsimile lines and numbers, and e-mail addresses. See Pl.'s Br. at 4. In addition, "three of five BDAG Board members sit on BD GmbH's four member board." Id.

In June 1995, NEPCO contracted with BDI, an American corporation, for the purchase of an air preheater for its cogeneration facility, which is located in McAdoo, Pennsylvania. See id. at 3; Def.'s Br. at 2. In July 1995, BDI issued a purchase order to BDAG for NEPCO's preheater.*fn1 See Pl.'s Br. at 5. BDAG informed BDI at that time that only BD GmbH could accept such an order. See id. Nevertheless, an acknowledgment was issued on a BDAG form and the order was referred to as a "BDAG project." Id. NEPCO further avers that correspondence from BD GmbH was often sent on BDAG stationary. See id. at 5, 6.

The air preheater allegedly began to experience leakage upon its installation. See id. In response to NEPCO's complaints, BDI arranged for Dr. Brasseur ("Brasseur") and Mr. Pfeiffer ("Pfeiffer"), both of whom were employees of BD GmbH,*fn2 to visit NEPCO's facility in Pennsylvania. See id. at 6. All of Brasseur's and Pfeiffer's dealings and communications with NEPCO occurred during their course of employment with BD GmbH. See Def.'s Reply Br. at 15-16.

In October 1996, Brasseur visited NEPCO's facility in McAdoo, Pennsylvania to investigate the reported leaks in the preheater assembly.*fn3 See Pl.'s Br. at 5; Def.'s Reply Br. at 16. This was Brasseur's only visit to NEPCO's facility in Pennsylvania. See Def.'s Reply Br. at 16. Although at that point Brasseur had been an employee of BD GmbH for over a year, his business card still showed him as a BDAG employee. See Pl.'s Br. at 5-6. While NEPCO asserts that this is proof that, in substance, BDAG and BD GmbH were really the same entity, see id. at 6, BDAG maintains that it was simply a case of a former employee using a yet-to-be exhausted set of business cards. See Def.'s Reply Br. at 16. As a result of this visit, Brasseur submitted a report, dated February 21, 1997, stating that the air preheater was in "very good shape." See Pl.'s Br. at Exh. 11-B.


"Once a jurisdictional defense has been properly raised, `the plaintiff bears the burden of demonstrating contacts with the forum state sufficient to give the court in personam jurisdiction.'" Supra Med. Corp. v. McGonigle, 955 F. Supp. 374, 381 (E.D.Pa. 1997) (quoting Time Share Vacation v. Atlantic Resorts, Ltd., 735 F.2d 61, 63 (3d Cir. 1984)). After the plaintiff produces these "facts sufficient to establish personal jurisdiction by a preponderance of the evidence, the burden then shifts to the defendant to show an absence of fairness or lack of substantial justice in exercising jurisdiction." Id. In determining whether personal jurisdiction can be asserted over a nonresident defendant, a court must proceed through "specific analytical steps." Pennzoil Prods. Co. v. Colelli & Assocs., Inc., 149 F.3d 197, 199 (3d Cir. 1998). We begin by considering Fed. R.Civ.P. 4(e), which "authorizes personal jurisdiction over non-resident defendants to the extent permissible under the law of the state where the district court sits." Id. (citing Mellon Bank (East) PSFS, Nat'l Assoc. v. Farino, 960 F.2d 1217, 1221 (3d Cir. 1992)). Pennsylvania's long-arm statute, which is codified at 42 Pa.C.S.A. § 5322, "permits Pennsylvania courts to exercise personal jurisdiction over nonresident defendants `to the constitutional limits of the [D]ue [P]rocess [C]lause of the [F]ourteenth [A]mendment.'" Id. Therefore, our "exercise of personal jurisdiction pursuant to Pennsylvania's long-arm statute is . . . valid as long as it is constitutional." Id.

The Court must next determine whether the defendant's contacts with the forum state are sufficient to invoke general personal jurisdiction. See Farino, 960 F.2d at 1221. In order to establish general jurisdiction, a nonresident's contacts with the forum must be "continuous and substantial." Pennzoil, 149 F.3d at 200. However, because neither party contends that there is a sufficient basis for this Court to exercise general personal jurisdiction, we will limit our remaining analysis to whether the alternative form of jurisdiction is present: specific personal jurisdiction. Specific jurisdiction exists when the plaintiff's claim "`is related to or arises out of the defendant's contacts with the forum.'" Farino, 960 F.2d at 1221 (quoting Dollar Savs. Bank v. First Sec. Bank of Utah, N.A., 746 F.2d 208, 211 (3d Cir. 1984)).

There are two standards courts generally apply when determining specific jurisdiction. The purpose of these standards is "to ensure that defendants receive due process as required by the Fourteenth Amendment." Pennzoil, 149 F.3d at 200. Pursuant to the first standard,*fn4 "a court must determine whether the defendant had the minimum contacts with the forum necessary for the defendant to have `reasonably anticipate[d] being haled into court there.'" Id. (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)). Under the second standard,*fn5 and assuming minimum contacts have been established, a court may inquire whether "the assertion of personal jurisdiction would comport with `fair play and substantial ...

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