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Lisa K. Richard v. Us Airways

January 26, 2011

LISA K. RICHARD
v.
US AIRWAYS, INC., ET AL



The opinion of the court was delivered by: Goldberg, J.

MEMORANDUM OPINION

This lawsuit arose after Plaintiff was allegedly injured on a US Airways flight from San Francisco to Philadelphia. Plaintiff claims that the negligence of Defendant, Francisco Jose Burgos, caused luggage to fall on her head, resulting in her injury. Currently before the Court is Defendant Burgos's motion to dismiss, which is premised on lack of personal jurisdiction. For the reasons detailed below, I will grant Burgos's motion.

A. Background

On August 10, 2009, Plaintiff filed this personal injury action in the Court of Common Pleas, Philadelphia County, Pennsylvania. Plaintiff alleged that while aboard a flight from San Francisco to Philadelphia, she was struck in the head by carry-on luggage as a result of the negligence of the airline, Defendant, US Airways, Inc., and a passenger on the flight, Defendant, Francisco Jose Burgos ("Burgos"),*fn1 who is a resident of Spain. Burgos's sole reason for traveling to Philadelphia was to connect with a flight to Spain, and upon his arrival in Philadelphia, he never left the airport.

US Airways removed the case to the United States District Court for the Eastern District of Pennsylvania on September 23, 2009 and the case was designated for arbitration. On October 7, 2009, US Airways filed an answer and on June 24, 2010, the case proceeded to arbitration where an award was entered in favor of Plaintiff and against Burgos. Burgos did not appear for the arbitration hearing nor was he represented by counsel. On July 19, 2010, Plaintiff requested a trial de novo.

On August 4, 2010, an attorney entered an appearance on behalf of Burgos and filed a motion to dismiss for lack of personal jurisdiction. Plaintiff asserts that Burgos's prior participation in this litigation constitutes a waiver of his right to raise a jurisdictional challenge. Plaintiff further contends that, in the event we do not find waiver, we should allow her to conduct jurisdictional discovery before ruling on this motion.

B. Was Personal Jurisdiction Waived?

Personal jurisdiction is a right that may be waived. See Bel-Ray Co. v. Chemrite (Pty) Ltd., 181 F.3d 435, 443 (3d Cir. 1999). A personal jurisdiction defense may be "lost by failure to assert [it] seasonably, by formal submission in a cause, or by submission by conduct." Neirbo Co. v. Bethlehem Shipbuilders Corp., 308 U.S. 165, 167-68 (1939). Specifically, a party may consent to personal jurisdiction if he or she "actually litigates the underlying merits or demonstrates a willingness to engage in extensive litigation in the forum." In re Tex. Eastern Transmission Corp., 15 F.3d 1230, 1236 (3d Cir. 1994). The determination as to whether a party has waived personal jurisdiction must be made on a case-by-case basis. See Wyrough & Loser, Inc. v. Pelmor Labs., Inc., 376 F.2d 543, 547 (3d Cir. 1967).

Prior to his counsel entering his appearance, Burgos's only contact with this case was that he was served the complaint,*fn2 was aware that he was being sued in Philadelphia, and sat in Spain for a remote videotape deposition. See (Def.'s Br., Ex. C, p. 6.) Burgos also received correspondence from Plaintiff's counsel and US Airways' counsel throughout the case, and in December of 2009, an attorney based in Philadelphia contacted Plaintiff's counsel on behalf of Burgos, but never entered his appearance. See (Def.'s Br., Ex. D.) Plaintiff also contends that at Burgos's request, her deposition was continued so that he could participate. However, Plaintiff does not argue or provide any evidence that suggests Burgos actually attended or participated in Plaintiff's deposition. Moreover, before his attorney entered an appearance on August 4, 2010, Burgos did not file an answer or a motion of any kind. Importantly, Burgos also did not appear for the arbitration hearing.

Considering his lack of meaningful involvement in the case, I am unable to conclude that Burgos consented to personal jurisdiction. The motion to dismiss currently before the Court is Burgos's first defensive move in this litigation. While it is clear that Burgos was aware he was being sued in Philadelphia, he did not actively litigate or defend the allegations in a manner that implied a waiver of his rights.*fn3 Indeed, Burgos did not participate in a hearing or other "vital proceeding" in this matter. Wyrough, 376 F.2d at 547.

In reaching this conclusion, I am mindful that Burgos's motion to dismiss comes after an arbitration proceeding and a year after Plaintiff filed her complaint in state court. Although the timing of his filing works against judicial efficiency, I cannot ignore Burgos's status as citizen of Spain, essentially acting without counsel throughout the early stages of this case, or the fact that we have not yet "consider[ed] the merits or quasimerits" of the case. Wyrough, 376 F.2d at 547 (holding court should balance countervailing policies of ensuring fairness to defendant and judicial efficiency, and noting that objections to preliminary matter, such as personal jurisdiction, should be identified "before the court considers the merits or quasimerits of a controversy").

C. Plaintiff's Request For Jurisdictional Discovery

Plaintiff has also requested that she be allowed to conduct jurisdictional discovery. To be entitled to this type of discovery, Plaintiff must present factual allegations that demonstrate such discovery is needed. See Ciolli v. Iravani, 625 F.Supp.2d 276, 292 (E.D.Pa. 2009) (finding jurisdictional discovery appropriate where plaintiff presented factual allegations that defendants had sufficient contacts with Pennsylvania to support a finding of personal jurisdiction).

In support of this request, Plaintiff contends that she should be able to question Burgos regarding the nature and extent of his previous visits to Pennsylvania, because he indicated at his deposition that he had been to Philadelphia before. Defendant responds that such discovery would be futile, since he is a resident of Spain and does not own property or do business in Pennsylvania. (Def.'s Br. at 3.) Further, at his deposition, he stated that while he has been to Philadelphia, "he never stop[s there] . . . the only place [he] go[es] to in Philadelphia is the airport." (Def.'s Br., Ex. B, p. ...


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