The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
This is an action for discrimination and retaliation. Plaintiff alleges his rights under the Family and Medical Leave Act were violated when defendants refused to re-hire him for an open position in retaliation for his previous FMLA-protected leave. 29 U.S.C. § 2615(a)(2).
Plaintiff previously filed a lawsuit before this Court against defendant Service Corporation International (SCI) (Civil Action No. 08-1628) and then filed an Amended Complaint in that action against SCI and SCI Funeral and Cemetery Purchasing Cooperative (SFCPC). After the initial case management conference and motions to dismiss were filed in 08-cv-1628, plaintiff dismissed SCI and SFCPC as defendants and pursued the action against only SCI Ohio Funeral Services, Inc. (SCI Ohio). On April 30, 2009, plaintiff initiated suit once again by bringing a new complaint with claims against SCI Pennsylvania Funeral Services, Inc. (SCI Pennsylvania) as well as SCI and SFCPC, alleging that SCI and SFCPC, who are the parent corporations and whose principal places of business are in Houston, Texas, are the "employers" under 29 U.S.C. § 2611(4), and that SCI Pennsylvania is a wholly-owned subsidiary of SCI, and is also an "employer" under 29 U.S.C. § 2611(4). According to plaintiff's complaint, defendants SCI, SFCPC, and SCI Pennsylvania are a "single employer" of Heinrich.
Pending before this Court is a motion to dismiss filed on behalf of defendant SCI and SFCPC (doc. no. 8) for lack of personal jurisdiction under Fed. R. Civ. P. 12(b)(2). After careful consideration, the Court will GRANT defendants' motion to dismiss (doc. no. 8) and will dismiss the claims against SCI and SFCPC.*fn1
Federal Rule of Civil Procedure 12(b)(2) allows a party challenging jurisdiction over the person to file a motion to dismiss. The United States Court of Appeals for the Third Circuit requires that once a defendant files a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(2), plaintiff bears the burden to demonstrate by a preponderance of evidence that personal jurisdiction exists. Carteret Sav. Bank, FA v. Shushan, 954 F.2d 141, 146 (3d Cir. 1992); Stevens v. Meaut, 264 F.Supp. 2d 226, 229 (E.D. Pa. 2003)(plaintiff must demonstrate prima facie case of personal jurisdiction based upon more than general averments in bare pleadings). Where, as here, the district court does not hold an evidentiary hearing, "the plaintiff need only establish a prima facie case of personal jurisdiction," Metcalfe v. Renaissance Marine, Inc. 566 F.3d 324, 330 (3d Cir. 2009) and it is well-established that in deciding a motion to dismiss, the Court must accept the plaintiff's allegations as true. Id. at 330 (citations omitted).
In O'Connor v. Sandy Lane Hotel Co., Ltd., 496 F.3d 312 (3d Cir. 2007), the United States Court of Appeals for the Third Circuit aptly set forth the applicable standard or review when a defendant challenges whether a district court has personal jurisdiction over a non-resident defendant, as follows:
Under Federal Rule of Civil Procedure 4(k), a District Court typically exercises personal jurisdiction according to the law of the state where it sits. See Fed.R.Civ.P. 4(k)(1)(A).... [The Pennsylvania Long Arm Statute] provides for jurisdiction "based on the most minimum contact with th[e] Commonwealth allowed under the Constitution of the United States." 42 Pa. Cons.Stat. Ann. § 5322(b); see Mellon Bank (East) PSFS, Nat'l Ass'n v. Farino, 960 F.2d 1217, 1221 (3d Cir.1992). Accordingly, in determining whether personal jurisdiction exists, we ask whether, under the Due Process Clause, the defendant has "certain minimum contacts with... [Pennsylvania] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." See Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (internal quotation omitted).
The two types of personal jurisdiction are general jurisdiction and specific jurisdiction. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-15 & n. 9, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)...
The inquiry as to whether specific jurisdiction exists has three parts. First, the defendant must have "purposefully directed [its] activities" at the forum. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (quotation marks omitted). Second, the litigation must "arise out of or relate to" at least one of those activities. Helicopteros, 466 U.S. at 414, 104 S.Ct. 1868; Grimes v. Vitalink Commc'ns Corp., 17 F.3d 1553, 1559 (3d Cir.1994). And third, if the prior two requirements are met, a court may consider whether the exercise of jurisdiction otherwise "comport[s] with 'fair play and substantial justice.' " Burger King, 471 U.S. at 476, 105 S.Ct. 2174 (quoting Int'l Shoe, 326 U.S. at 320, 66 S.Ct. 154).
At the threshold, the defendant must have "purposefully avail[ed] itself of the privilege of conducting activities within the forum." Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). Physical entrance is not required. See Burger King, 471 U.S. at 476, 105 S.Ct. 2174; Grand Entm't Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 482 (3d Cir.1993) ("Mail and telephone communications sent by the defendant into the forum may count toward the minimum contacts that support jurisdiction."). But what is necessary is a deliberate targeting of the forum. Thus, the "unilateral activity of those who claim some relationship with a nonresident defendant" is insufficient. See Hanson, 357 U.S. at 253, 78 S.Ct. 1228. And contacts with a state's citizens that take place outside the state are not purposeful contacts with the state itself. See Gehling v. St. George's Sch. of Med., Ltd., 773 F.2d 539, 542-43 (3d Cir.1985).
Although not addressed in Sandy Lane Hotel, general jurisdiction arises over a defendant when the defendant's activities within the forum state are both "continuous and systematic." General Elec. Co. v. Deutz Ag, 270 F.3d 144, 150 (3d Cir.2001) citing Helicopteros ...