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Carlos Merced v. Gemstar Group

November 22, 2011

CARLOS MERCED PLAINTIFF,
v.
GEMSTAR GROUP, INC. , ET AL. DEFENDANTS.



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

MEMORANDUM

November ___, 2011

Presently before the Court are Defendants' Margraf, S.P.A., Margraf Tiles, S.R.L., and Linea Marmo, S.P.A ("Margraf Defendants", collectively) Motions to Dismiss (Docs. 30, 31, 32), Defendant Gemstar Canada Inc.'s Response (Doc. 37), Defendant Zim Integrated Shipping Services, Ltd.'s Response (Doc. 38), Plaintiff's Response (Doc. 39), Defendants' SDS Global Logistics, Inc. and Security Deliver Service, Inc. Response (Doc. 44), and the Margraf Defendants' Reply (Doc. 50). Upon consideration of the parties' motions with exhibits and declarations, the Court will deny the Margraf Defendants' Motions to Dismiss for the reasons set forth below.

I. BACKGROUND

This case arises from personal injuries suffered by Plaintiff Carlos Merced ("Merced") due to the alleged negligence of Defendants. This court has jurisdiction pursuant to 28 U.S.C. § 1332 as there is complete diversity of citizenship and the amount in controversy exceeds $75,000. Venue is proper under 28 U.S.C. § 1391(a)(2). Defendants Margraf, S.P.A., Margraf Tiles, S.R.L., and Linea Marmo, S.P.A ("Margraf Defendants" collectively) move to dismiss for lack of personal jurisdiction under FED. R. CIV. P. 12(b)(2).

On December 31, 2008, Plaintiff was working at Belfi Brothers & Co., Inc. ("Belfi Brothers") in Philadelphia, Pennsylvania, unloading marble slabs packed inside a shipping container by the Margraf Defendants. (Compl. Intro.) While Plaintiff was unloading the container, the marble slabs, which weighed thousands of pounds, crushed his leg causing severe and potentially permanent injuries including but not limited to a grade I open tibial fracture, leg pain, muscle atrophy, and loss of use and sensation of his lower extremity. (Compl. ¶ 62.) As a result of these injuries, Plaintiff has undergone surgery, therapy, treatment and rehabilitation, and diagnostic testing. (Compl.¶ 63.)

The Marble Slabs were produced, packaged, and loaded into a shipping container by Margraf, S.P.A., an Italian Corporation, who then distributed the container to Gemstar, a tile distributor in Ontario, Canada. (Doc. 39-5.) Gemstar then sold and distributed the marble slabs to Belfi Brothers in Philadelphia, where Plaintiff was injured. (Doc. 39-5.) An email from Michela Dalla Pozza, an agent of Margraf, S.P.A., specifically states that Margraf S.P.A. would "load and fix the materials in [the] best and [most] secure way possible" in a shipping container for transport to Philadelphia. (Doc. 39-5.) An invoice shows that Michela Dalla Pozza, and thus Margraf S.P.A., had actual knowledge that the products' final destination was Philadelphia. (Compl., Ex. B.)

Margraf, S.P.A. is the exclusive owner of a quarry in Italy that produces the specific injury-causing tile, which is called "fior di pesco," meaning "peach blossom" in English. (Doc. 39-5). Margraf, S.P.A. holds an active trademark registered with the United States Patent and Trademark Office for its "fior di pesco" tile. (Doc. 39-5.) Accordingly, all "fior di pesco" tile sold in the United States is a monopoly product of Margraf, S.P.A.'s Italian quarry. Records submitted by Plaintiff show that Margraf S.P.A. has shipped its tile products to at least seventy United States locations since 2007. (Doc. 39-2.) Of these shipments, at least three have been to Pennsylvania, including a shipment in 2010 to Malvern, Pennsylvania worth over $19,000, and dozens have been to other states in the Northeast. (Doc. 30-11, 39-2.)

The instant action was commenced with the filing of the Complaint on August 10, 2010. (Doc. 5.) Plaintiff seeks damages, including compensatory damages, for the injuries sustained as a result of the accident, as well as all other relief deemed appropriate by the Court.

On September 17, 2010, Zim Integrated Shipping Co., Inc. ("Zim") filed a cross-claim for contribution and indemnity against all Co-Defendants. (Doc. 7.) On October 5, 2010, SDS Global Logistics, Inc. and Security Delivery Service, Inc. ("SDS Defendants" collectively) filed an answer to Zim's cross-claim. (Doc. 9.) On January 11, 2011, Gemstar filed answers to the Complaint and Zim's cross-claim, filed a cross-claim against all Co-Defendants for contribution and indemnity, and filed a motion to dismiss under FED. R. CIV. P. 12(b)(2) for lack of personal jurisdiction. (Docs. 21, 23.) On February 1, 2011, the Margraf Defendants filed a motion to dismiss the Complaint as well as Gemstar's and Zim's crossclaims under FED. R. CIV. P. 12(b)(2) for lack of personal jurisdiction. (Docs. 30, 31, 32.)

II. STANDARD OF REVIEW

A federal court sitting in diversity must conduct a two-step analysis to ascertain whether personal jurisdiction exists. First, the court must look to the forum state's long-arm statute to determine if personal jurisdiction is permitted over the defendant. Second, the court must determine whether the exercise of jurisdiction violates the Due Process Clause of the Fourteenth Amendment. See IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 259 (3d Cir. 1998); Vetrotex Certainteed Corp. v. Consolidated Fiber Glass Prods. Co., 75 F.3d 147, 150 (3d Cir. 1996).

Because Pennsylvania's long-arm statute permits the exercise of personal jurisdiction to the fullest limits of due process as defined under the Constitution of the United States, See 42 PA. CONS. STAT. ANN. § 5322 (b) (2011), federal law defines the parameters of this Court's in personam jurisdiction. See Vetrotex Certainteed Corp., 75 F.3d at 150.

The Fourteenth Amendment permits a state to exercise jurisdiction over an out-of-state defendant only where "the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)). It is the burden of the plaintiff to prove that the defendant purposefully availed himself of the forum state. To satisfy this burden, "at no point may the plaintiff rely on the bare pleadings alone," but rather must sustain its burden "through sworn affidavits or other ...


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