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Bootay v. KBR

March 26, 2010


The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge


Pending before the Court are the MOTION OF KBR, INC., OVERSEAS ADMINISTRATION SERVICES, LTD., AND SERVICE EMPLOYEES INTERNATIONAL, INC. TO DISMISS FOR LACK OF PERSONAL JURISDICTION (Document No. 13) and the MOTION OF KELLOGG BROWN & ROOT SERVICES, INC. AND KBR TECHNICAL SERVICES, INC. TO DISMISS UNDER FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) (Document No. 15). Plaintiff has filed responses in opposition to the motions and they have been thoroughly briefed by all parties (Document Nos. 14, 16, 21-26, 29, 30). In addition, both parties have submitted exhibits for consideration by the Court.

Factual Background

This case arises out of the serious health conditions suffered by Plaintiff allegedly due to his exposure to sodium dichromate at the Qarmat Ali water treatment facility in Iraq in April 2003. The Complaint alleges that poisonous materials were spread by members of the Baath party in an effort to sabotage the facility. At the time, Plaintiff was an Army sergeant on active military duty during the Iraq war and was assigned to provide force protection at Qarmat Ali. Bootay enlisted in the Army on September 12, 2001, received an honorable discharge, and has experienced severe health symptoms that have resulted in his alleged disability at the age of thirty. Bootay has rendered patriotic service to the nation and is a sympathetic Plaintiff.

The five Defendants are related corporate entities. KBR, Inc., the parent corporation, had received a contract from the United States Army under the Logistics Civil Augmentation Program ("LOGCAP") to provide logistical support services to the military forces operating in Iraq. One of the projects assigned to KBR, Inc. was to resume the pumping of water from the Qarmat Ali facility into Iraqi oil fields to help Restore the Iraqi Oil industry (referred to as the "RIO Contract") as quickly as possible after the invasion. The remaining Defendants are alleged to be subcontractors and/or affiliates on the project.

Motion to Dismiss for Lack of Personal Jurisdiction

Three of the five named Defendants, KBR, Inc. ("KBR"), Overseas Administration Services, Ltd. ("Overseas"), and Service Employees International, Inc. ("SEII") (collectively the "Jurisdictional Movants"), challenge the existence of personal jurisdiction in this Court. Each of these entities has submitted an affidavit which asserts that it is not registered to do business in Pennsylvania, that it maintains no office, facilities, mailing address or employees in Pennsylvania, and that it does not conduct, direct or solicit any business in Pennsylvania.

A district court may assert personal jurisdiction over a non-resident to the extent authorized by the law of the state in which it sits. See Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 63 (3d Cir. 1984). Pennsylvania's long-arm statute provides that a court may exercise personal jurisdiction over non-residents "to the fullest extent allowed under the Constitution of the United States." 42 Pa. C.S.A. § 5322(b). Constitutional due process requires that a defendant have at least "minimum contacts" with a forum state and that the exercise of jurisdiction be consistent with traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

Plaintiff agrees that the conduct at issue in this case occurred in Iraq and did not arise out of and was not related to Defendants' activities in Pennsylvania. The United States military assigned Bootay, a Pennsylvania resident, to provide force protection at the Qarmat Ali facility, and therefore, it was pure happenstance that the alleged activities of Defendants had any connection to Pennsylvania. Accordingly, the Court need not analyze the parameters of "specific jurisdiction" but need only determine whether it is appropriate to exercise "general jurisdiction" over the Jurisdictional Movants. The well-established test for the exercise of "general jurisdiction" is whether a defendant has "continuous and systematic contacts" within the forum. General Elec. Co. v. Deutz AG, 270 F.3d 144, 150 (3d Cir. 2007); see also Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408 (1984).

Plaintiff falls far short of alleging the type of "continuous and systematic contacts" that could possibly support the exercise of "general jurisdiction." Indeed, Plaintiff has not even attempted to rebut the Jurisdictional Movants' assertions of a complete lack of contacts with Pennsylvania. Plaintiff's primary argument is that all of the "KBR" Defendants availed themselves of the laws of Pennsylvania because two entities filed petitions for bankruptcy in this district. However, the exhibits submitted by Plaintiff clearly reflect that those filings were not made by the Jurisdictional Movants, but rather, by the other two Defendants in this case, Kellogg Brown & Root Services, Inc. ("KBR Services") and KBR Technical Services, Inc. ("KBR Technical"). KBR Services and KBR Technical are separate and distinct corporate entities, neither of which has challenged this Court's exercise of personal jurisdiction. Plaintiff's surreply brief asserts, citing Simone v. Bombardier-Rotax, GMBH, 360 F. Supp.2d 665 (E.D. Pa. 2005), that it is "well-established" that "the Court may exercise personal jurisdiction over either a parent or subsidiary corporation based on the other's connections to the forum." This is an inaccurate and misleading statement of Simone and of the applicable legal rule. The separate existence of corporate entities is generally respected for jurisdictional purposes, and the activities of one entity are imputed to another only if Plaintiff establishes that they should be regarded as alter egos. See Eldon v. Brown, 2010 WL 415317 (D.N.J. 2010) (citations omitted). Plaintiff has failed to show any indication of the control and/or coordination required to succeed under an alter ego theory, but merely points to the manner in which various KBR-related entities filed registration forms with the Pennsylvania Department of State and the "confusion" of one employee having had his paycheck come from Overseas rather than KBR. Finally, the only other contact cited by Plaintiff is that numerous Pennsylvania residents have been employed (outside of Pennsylvania) by Overseas and SEII. The recruiting of employees from within a state is clearly an insufficient basis for "general jurisdiction." Gehling v. St. George's School of Medicine, Ltd., 773 F.2d 539 (3d Cir. 1985); Corrales Martin v. Clemson University, 2007 WL 4531028 (E.D. Pa. 2007). It is clear that none of the Jurisdictional Movants have had continuous and systematic contacts with Pennsylvania.

Plaintiff has not requested the opportunity to conduct jurisdictional discovery. In any event, his allegations as to jurisdiction are so lacking that such a request would likely not be warranted. See Poe v. Babcock Intl., PLC, 662 F. Supp. 4, 7 (M.D. Pa. 1985) (Plaintiff's failed to produce any evidence to show alter ego theory and was not permitted to conduct discovery).


Motion to Dismiss for Failure to State a Claim

Defendants have raised numerous legal challenges to the Complaint. The Court will first address Defendants' contention that Plaintiff's claims are barred by the applicable statute of limitations, insofar ...

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