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
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 ...