United States District Court, Eastern District of Pennsylvania
August 20, 2001
SEAN REED VS. WEEKS MARINE, INC.
The opinion of the court was delivered by: J. Curtis Joyner, J.
MEMORANDUM AND ORDER
By way of the motion which is now before this Court, Defendant, Weeks
Marine, Inc. moves to dismiss Plaintiff's complaint for insufficient
service of process or, in the alternative to transfer venue to the
District of New Jersey. For the reasons set forth below, the motion is
According to the complaint, Plaintiff, Sean Reed was employed as a
seaman by Weeks Marine, Inc. when, on April 10, 2000, he was injured
while in the course and scope of his employment. At the time of the
accident, Plaintiff was working as a crew member on board Defendant's
Scow 222 in the navigable waters of the Chesapeake Bay. Plaintiff
contends that the accident occurred solely as the result of the
defendant's negligence and, on February 14, 2001, he commenced this civil
action pursuant to the Jones Act, 42 U.S.C. § 688, et. seq.
In response, Defendant has filed the instant motion to dismiss for
improper service and venue and/or to transfer this action to the
U.S. District Court for the District of New Jersey.
Standards Governing Rule 12(b)(3) and 12(b)(5) Motions
District Courts are empowered under Fed.R.Civ.P. Nos. 12(b)(3) and
12(b)(5) to dismiss civil actions for improper venue and for
insufficiency of service of process. A motion authorized under Rule
12(b)(5) permits a defendant to challenge any departure from the
procedure for serving him with the summons and complaint for purposes of
giving notice of the action's commencement. 5A CHARLES ALAN WRIGHT &
ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE CIVIL 2D, § 1353 (2d
ed. 1990). Under these provisions, a defendant may object to the
plaintiff's failure to comply with the procedural requirements for proper
service set forth in or incorporated by Rule 4. Id. In resolving a motion
under Rule 12(b)(5), the party making the service has the burden of
demonstrating its validity when an objection to service is made. Grand
Entertainment Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476,
488-489 (3d Cir. 1993); Addanki v. Defense Logistics Agency Defense
Personnel Support Center, 1996 WL 635590 at *1 (E.D.Pa. 1996).
Similarly, the district court of a district in which is filed a case
laying venue in the wrong division or district shall be dismiss, or if it
be in the interest of justice or, transfer such case to any district or
division in which it could have been brought. 28 U.S.C. § 1406(a);
Sundance Rehabilitation Corporation v. Senior Living Properties, Inc.,
2001 U.S. Dist. LEXIS 8008 (E.D.Pa. 2001). In cases where a motion to
dismiss for improper venue is filed, it is the moving party which bears
the burden of proving that venue is improper. Myers v. American Dental
Association, 695 F.2d 716, 724 (3d Cir. 1982); Freddo v. United States,
2001 U.S. Dist. LEXIS 9316 at *3 (E.D.Pa. 2001); Taylor & Francis Group,
PLC v. McCue, 145 F. Supp.2d 627, 629 (E.D.Pa. 2001).
The Jones Act, 46 U.S.C. § 688 provides in pertinent part:
(a) Any seaman who shall suffer personal injury in the
course of his employment may, at his election,
maintain an action for damages at law, with the right
of trial by jury, and in such action all statutes of
the United States modifying or extending the
common-law right or remedy in cases of personal injury
to railway employees shall apply. . . . Jurisdiction
in such actions shall be under the court of the
district in which the defendant employer resides or in
which his principal office is located.
Although this provision is framed in jurisdictional terms, the U.S.
Supreme Court has held that it refers only to venue. Pure Oil Co. v.
Suarez, 384 U.S. 202
, 203, 86 S.Ct. 1394, 1395, 16 L.Ed.2d 474 (1966);
Papaioannoiu v. Hellenic Lines, Ltd., 569 F. Supp. 724, 726 (E.D.Pa.
1983). It incorporates the venue provision of 28 U.S.C. § 1391, which
provides in relevant part:
(b) A civil action wherein jurisdiction is not founded
solely on diversity of citizenship may, except as
otherwise provided by law, be brought only in (1) a
judicial district where any defendant resides, if all
defendants reside in the same State, (2) a judicial
district in which a substantial part of the events or
omissions giving rise to the claim occurred, or a
substantial part of property that is the subject of
the action is situated, or (3) a judicial district in
which any defendant may be found, if there is no
district in which the action may otherwise be
(c) For purposes of venue under this chapter, a
defendant that is a corporation shall be deemed to
reside in any judicial district in which it is subject
to personal jurisdiction at the time the action is
commenced. In a State which has more than one judicial
district and in which a defendant that is a
corporation is subject to personal jurisdiction at the
time an action is commenced, such corporation shall be
deemed to reside in any district in that State within
which its contacts would be sufficient to subject it
to personal jurisdiction if that district were a
separate State and, if there is no such district, the
corporation shall be deemed to reside in the district
within which it has the most significant contacts.
Myers v. The Bank of New York, 1995 U.S. Dist. LEXIS 2789 at *6
(E.D.Pa. 1995). Thus, 28 U.S.C. § 1391 permits a corporation to be
sued in any judicial district in which it is incorporated or licensed to
do business or is doing business in that such judicial district is
regarded as the residence of such corporation for venue purposes.
Papaioannoiu, 569 F. Supp. at 726; Mauer v. Langenfelder & Son, Inc.,
1988 U.S. Dist. LEXIS 2080 at *1 (E.D.Pa. 1988).
A. Service of Process.
Defendant first avers that the complaint against it should be dismissed
due to the insufficiency of service of process pursuant to Fed.R.Civ.P.
4(h)(1). We disagree.
Specifically, Rule 4(h) governs the service of process upon
corporations and associations and states that:
Unless otherwise provided by federal law, service upon
a domestic or foreign corporation or upon a
partnership or other unincorporated association that
is subject to suit under a common name, and from which
a waiver of service has not been obtained and filed
shall be effected:
(1) in a judicial district of the United States in the
manner prescribed for individuals by subdivision
(e)(1), or by delivering a copy of the summons and of
the complaint to an officer, a managing or general
agent, or to any other agent authorized by appointment
or by law to receive service of process and, if the
agent is one authorized by statute to receive service
and the statute so requires, by also mailing a copy to
the defendant, or
(2) in a place not within any judicial district of the
United States in any manner prescribed for individuals
by subdivision (f) except personal
provided in paragraph 2(C)(i) thereof.
Rule 4(e)(1), in turn, provides that:
Unless otherwise provided by federal law, service upon
an individual from whom a waiver has not been obtained
and filed, other than an infant or an incompetent
person, may be effected in any judicial district in
the United States:
(1) pursuant to the law of the state in which the
district court is located, or in which service is
effected, for the service of a summons upon the
defendant in an action brought in the courts of
general jurisdiction of the state.
Under the Pennsylvania Rules of Civil Procedure, original process
generally is required to be served by the Sheriff or, in actions in
equity, partition, to prevent waste, declaratory judgment and domestic
relations, may be effectuated by a competent adult by handing a copy to
the defendant or handing a copy at the defendant's residence or place of
business to an adult person in charge of the residence or place of
business. Pa.R.C.P. Nos. 400, 401, 402. Where, however, original process
is to be served outside the Commonwealth of Pennsylvania, it may be
accomplished by any form of mail requiring a receipt signed by the
defendant or his authorized agent. Pa.R.C.P. Nos. 403, 404.
According to the defendant in this case, on February 23, 2001, it
received a copy of the summons and complaint by certified mail delivered
to its principal place of business in Cranford, New Jersey. Thereafter,
on April 25, 2001, an unidentified individual hand delivered a second
copy of the summons and Plaintiff's complaint in this matter to
Defendant's receptionist, Doris Hermann, in its Cranford, N.J. office.
Because Ms. Hermann is not an officer, managing or general agent for
Weeks Marine and is not authorized to accept or receive service of
process on its behalf, Defendant avers that service here was improper.
Defendant notes that while it does occasionally perform work in the
navigable waters of the Delaware River, it is not incorporated in
Pennsylvania and has no office or facility here. Defendant does not
challenge the authority of the person who accepted the certified mail on
its behalf, nor does it argue that Ms. Hermann was not the person in
charge of its place of business at the time she received the
hand-delivered copy of the summons and complaint. From these facts, it is
therefore clear that the plaintiff's service of Defendant by certified
mail and hand delivery was effective pursuant to Fed.R.Civ.P. 4(e)(1) and
Pa.R.C.P.Nos. 403 and 404. Thus, the motion to dismiss for failure to
effectuate proper service is denied.
B. Propriety of Venue in this District.
As noted above, under 28 U.S.C. § 1391(b) and (c), venue against a
corporation will lie in any judicial district in which it is
incorporated, licensed to do business or is doing business. See, Pure
Oil, and Mauer, both supra. As plaintiff alleges in his complaint that
Weeks Marine was doing business in Philadelphia, Pennsylvania at or
around the time of the subject accident and given the defendant's
admission that it does work in the navigable waters of the Delaware
River, venue in the Eastern District of Pennsylvania is proper. We thus
decline Defendant's request to have this action dismissed for improper
Nevertheless, Defendant's motion to dismiss requests, in the
alternative, that this matter be transferred to the United States
District Court for the District of New Jersey. A motion for transfer of
venue necessarily invokes the provisions of 28 U.S.C. § 1404(a),
(a) For the convenience of parties and witnesses, in
the interest of justice, a
district court may transfer
any civil action to any other district or division
where it might have been brought.
Section 1404 is intended to place discretion in the district courts to
adjudicate motions for transfer according to an individualized,
case-by-case consideration of convenience and fairness. Stewart
Organization, Inc. v. Ricoh Corp., 487 U.S. 22
, 29, 108 S.Ct. 2239,
2244, 101 L.Ed.2d 22 (1988). The moving party bears the burden of
establishing the need for a transfer by demonstrating that (1) the case
could have been brought initially in the proposed transferee forum; (2)
the proposed transfer will be for the convenience of the parties; (3) the
proposed transfer will be in the interest of the convenience of the
witnesses; and (4) the proposed transfer will be in the interest of
justice. Lowery v. Great Lakes Dredge & Dock Company, 2001 U.S. Dist.
LEXIS 10165 at *4 (E.D.Pa. 2001); Miller v. Consolidated Rail Corp., 196
F.R.D. 22, 24-25 (E.D.Pa. 2000).
In deciding whether to transfer an action, the Courts should not limit
their consideration to the § 1404 factors enumerated above but should
also consider both private and public interests. The private interests
include: Plaintiff's forum preference as manifested in the original
choice; the defendant's preference; whether the claim arose elsewhere;
the convenience of the parties as indicated by their relative physical
and financial condition; the convenience of the witnesses, but only to
the extent that the witnesses may actually be unavailable for trial in
one of the fora; and the location of books and records. Jumara v. State
Farm Insurance Co., 55 F.3d 873, 879 (3d Cir. 1995). The public interests
have included: the enforceability of the judgment; practical
considerations that could make the trial easy, expeditious or
inexpensive; the relative administrative difficulty in the two fora
resulting from court congestion; the local interest in deciding local
controversies at home; the public policies of the fora; and the
familiarity of the trial judge with the applicable state law in diversity
cases. Id.; Omnikem, Inc. v. Shepherd Tissue, Inc., 2000 U.S. Dist. LEXIS
5268 at *17 (E.D.Pa. 2000).
Of these various factors, the plaintiff's choice of forum has been
identified as the paramount consideration, although the plaintiff's
choice of forum is entitled to less weight where the plaintiff chooses a
forum which is neither his home nor the situs of the occurrence upon
which the suit is based. Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d
Cir. 1970); Jordan v. Delaware & Hudson Railway Co., 590 F. Supp. 997,
998 (E.D.Pa. 1984). In any event, the plaintiff's choice of forum will
not be disturbed unless the balance of interests tilts strongly in favor
of a transfer. Innovative Solutions & Support, Inc. v. Global Access
Unlimited, 2001 U.S. Dist. LEXIS 9734 at *11 (E.D.Pa. 2001); Bolles v. K
Mart Corporation, 2001 U.S. Dist. LEXIS 9301 (E.D.Pa. 2001). See Also:
Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-509, 67 S.Ct. 839, 843, 91
L.Ed 1055 (1947).
In this case, Mr. Reed is a resident of Florida and the accident of
which he complains occurred in the navigable waters of the Chesapeake Bay
near Baltimore, Maryland. Although it is unknown where Weeks Marine,
Inc. is incorporated, it has an office and principal place of business in
New Jersey, where it desires to have this action transferred. Of the four
known witnesses to the plaintiff's accident, none of them reside in
either Pennsylvania or New Jersey: one resides in New Hampshire, one in
South Carolina and two in Maryland. Three of the four witnesses are
presently working for the defendant
company in New York. It appears that
plaintiff's medical treatment was rendered in Maryland and Florida. In
thus weighing the various public and private interest factors outlined
above, we find that neither Pennsylvania nor New Jersey has any greater
contacts with this litigation than the other. While it is true that this
district is entitled to less weight given that it is neither the
plaintiff's home forum nor the situs of the subject accident, as Defendant
itself points out, the District of New Jersey is literally across the
Delaware River from the Eastern District of Pennsylvania and hence this
Courthouse is no more inconvenient for the defendant and its witnesses
than is the Courthouse in Camden, NJ. We therefore cannot find that the
balance of interests tilts strongly in favor of moving this action across
the river nor do we see any compelling reasons to disturb the plaintiff's
choice of forum. Accordingly, the motion to transfer venue is also denied
in accordance with the attached order.
AND NOW, this day of August, 2001, upon consideration of Defendant's
Motion to Dismiss for Improper Venue and Insufficiency of Service of
Process, it is hereby ORDERED that the Motion is DENIED for the reasons
set forth in the preceding Memorandum Opinion.
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