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Henry Karcsh and Juliann Karcsh v. Board of Directors Ventura Country Club Community Homeowners Association

May 4, 2011

HENRY KARCSH AND JULIANN KARCSH, PLAINTIFFS.
v.
BOARD OF DIRECTORS VENTURA COUNTRY CLUB COMMUNITY HOMEOWNERS ASSOCIATION, DEFENDANT.



The opinion of the court was delivered by: Diamond J.

MEMORANDUM

The accident that gave rise to this personal injury case took place in Florida, where Defendant-the governing body of a community association-is located. Defendant moves to dismiss for lack of personal jurisdiction and improper venue. (Doc. No. 6.) I agree that personal jurisdiction is lacking and venue is improper, and so will grant Plaintiffs' unopposed request to transfer this action to the Middle District of Florida.

I.FACTUAL BACKGROUND

On September 23, 2010, Plaintiffs Henry and Juliann Karsch, Pennsylvania citizens, filed the instant Complaint against Defendant, the Board of Directors of the Ventura Country Club Community Homeowner's Association, which is incorporated in Florida and located in Orlando. Plaintiffs allege that on September 28, 2008, Mr. Karsch was jogging on Woodgate Boulevard, an Orlando street owned and maintained by the Association. A vehicle struck Mr. Karsch, causing severe injuries. Invoking this Court's diversity jurisdiction, Plaintiffs bring claims for negligence and loss of consortium. 28 U.S.C. § 1332. Although their Complaint is less than clear, Plaintiffs apparently allege that Defendant is liable for failing to construct a barrier on Woodgate Boulevard to protect joggers and pedestrians. (Doc. No. 1 ¶ 10.)

II.PROCEDURAL HISTORY

On December 2, 2010, having been advised that they needed to serve Defendant within 120 days of filing (as required by Rule 4(m)), Plaintiffs sent to Defendant by Priority Mail Service: (1) a Notice of a Lawsuit and Request to Waive Service of Summons, which provided that Defendant could waive service of process by returning the signed waiver form within 30 days of December 2, 2010; (2) two copies of the Waiver of the Service of Summons; (3) a self-addressed stamped envelope; (4) a Summons; and (5) a copy of the instant Complaint. FED. R. CIV. P. 4(d), 4(m);

(Doc. No. 8, Ex. 2.) On January 5, 2011-four days after the Waiver's 30-day deadline-Defendant returned the executed form to Plaintiffs.

On January 6, 2011, Plaintiffs filed a "Proof of Waiver of Service of Summons," "attesting to the waiver of service of summons by all defendants." On January 26, 2011, Defendant filed a Motion to Dismiss Plaintiffs' Complaint for Lack of Personal Jurisdiction and for Improper Venue. (Doc. No. 6.) In their Response (Doc. No. 8), Plaintiffs did not address the substance of Defendant's arguments, noting instead that its Motion was untimely because Defendant had "defaulted" when it returned the executed waiver of service form four days late. (Doc. No. 8.) Although I then ordered Plaintiffs to respond to the substance of Defendant's Motion (Doc. No. 10), Plaintiffs submitted a Supplemental Memorandum in which they did not address jurisdiction, argued that this Court had venue, and asked me to transfer the case to the Middle District of Florida (should I decide to grant Defendant's Motion). (Doc. No. 11.)

III.LEGAL STANDARDS

A. Timeliness of Defendant's Response -- Waiver of Service

Rule 4(c)(1) provides that the "plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service." FED. R. CIV. P. 4(c)(1). Rule 4(d)(1)(F) provides that a plaintiff seeking a waiver of formal service must "give the defendant a reasonable time of at least 30 days after the request was sent. . . to return the waiver. . . ." FED. R. CIV. P. 4(d)(1)(F). If the defendant will not waive service, the plaintiff must serve the defendant personally, at the defendant's expense. Sampath v. Concurrent Techs. Corp., 227 F.R.D. 399, 402 (W.D. Pa. 2005); FED. R. CIV. P. 4(d)(2)(A) & (B).

An incorporated entity may be served according to the Federal Rules or by "following state law for serving a summons . . . in the state where the district court is located or where service is made." FED. R. CIV. P. 4(e)(1); 4(h)(1)(A). Under Pennsylvania law, a plaintiff may serve a non-Pennsylvania defendant "by any form of mail requiring a receipt signed by the defendant or his authorized agent." Pa. R.C.P. 403; 404. Florida law requires personal service or an affidavit explaining the need for substitute service. Saridis v. Vista St. Lucie Ass'n, Inc. 804 So.2d 372, 373 (Fla. Dist. Ct. App. 2001).

B. Motion to Dismiss for Lack of Personal Jurisdiction

Rule 12(b)(2) requires the plaintiff to establish that jurisdiction exists in the forum state. Mellon Bank (East) PSFS, Nat. Ass'n v. Farino 960 F.2d 1217, 1223 (3d Cir. 1992). The court must construe all jurisdictional facts in the light most favorable to the plaintiff, who must present "a prima facie case for the exercise of personal jurisdiction ‗by establishing with reasonable particularity, sufficient contacts between the defendant and the forum state.'" Id. (quoting Provident Nat. Bank v. California Fed. Sav. & Loan Assoc., 819 F.2d 434, 437 (3d Cir.1987)).

Because Pennsylvania's long-arm statute reaches to the limits of due process, a finding of personal jurisdiction must comport with those constitutional requirements. Id. at 1221. Specific jurisdiction requires that the defendant have "minimum contacts" with the forum state and "reasonably anticipate being haled into court there," such that "the assertion of personal jurisdiction would comport with ‗fair play and substantial justice.'" Id. General jurisdiction requires that the defendant conduct ...


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