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Colony National Insurance Co. v. Deangelo Brothers, Inc.

United States District Court, M.D. Pennsylvania

March 28, 2014

COLONY NATIONAL INSURANCE CO. and AMERICAN HOME ASSURANCE CO., Plaintiffs,
v.
DeANGELO BROTHERS, INC. and UNION PACIFIC RAILROAD CO., Defendants.

MEMORANDUM OPINION

ROBERT D. MARIANI, District Judge.

I. Introduction

Presently before the Court is a Motion to Dismiss for Lack of Personal Jurisdiction (Doc. 15), filed by Defendant Union Pacific Railroad in this declaratory judgment action. For the reasons discussed below, the Court will deny the Motion without prejudice, with leave to be resubmitted following the completion of jurisdictional discovery.

II. Factual Allegations and Procedural History

The factual background of this case was discussed in the Court's Memorandum Opinion of March 21, 2014, in which the Court denied Defendant DeAngelo's Brothers' Motion to Dismiss or to Drop a Party. ( See generally Doc. 53 at 1-6.) That background discussion is incorporated herein.

In the present Motion, Defendant Union Pacific Railroad seeks dismissal on the grounds that it is not subject to personal jurisdiction in Pennsylvania. It argues that there "is no basis for general or specific personal jurisdiction" in Pennsylvania, ( see Def. Union P. R.R. Co.'s Reformatted Brief in Supp. of Mot. to Dismiss, Doc. 33, at 19), and, therefore, "[e]xercising personal jurisdiction over Union Pacific Railroad in this case would be unconstitutional, " ( id. at 5).

In support, Union Pacific provides a sworn affidavit stating that it is a corporation incorporated in Delaware with a primary place of business in Nebraska. ( See Aff. of Maureen Fong Hinners, Doc. 15-1, at ¶ 2.) Moreover, as it argues in its supporting brief,

Union Pacific has no offices in Pennsylvania. It does not run its trains through Pennsylvania. It does not pay corporate income or franchise tax to Pennsylvania. It does not advertise specifically to Pennsylvania citizens or corporations. It does not maintain an agent in Pennsylvania. In summary, Union Pacific Railroad does not "continuously and systematically" conduct any business in Pennsylvania.

(Doc. 33 at 9-10 (internal citations omitted).) According to Hinners, "Union Pacific Railroad's rail network covers 23 states in the western two-thirds of the United States." (Doc. 15-1 at ¶ 3.) A map provided with Hinners' declaration shows no Union Pacific rail routes east of Chicago. ( See id., Ex. 1, at 4.) And while Union Pacific did enter into a contract with DeAngelo Brothers, a Pennsylvania company, to do work implicated in this lawsuit, according to a sworn affidavit by DeAngelo Brothers' President Paul DeAngelo,

[t]his agreement was the result of a national on-line bidding process through which [DeAngelo Brothers] submitted the winning bid. Union Pacific had placed its request for bids for vegetation services on the internet. My company submitted a bid to Union Pacific after seeing this online request for proposal. In submitting our bid [DeAngelo Brothers] reached out to Union Pacific in Nebraska. Union Pacific did not approach [DeAngelo Brothers] in Pennsylvania.

(Aff. of Paul D. DeAngelo, Doc. 15-2, at ¶ 2.) Moreover, to the best of affiant Paul DeAngelo's knowledge, "Union Pacific signed the contract in Omaha, Nebraska. [The affiant has] no knowledge that Union Pacific executed the contract in Pennsylvania." ( Id. at ¶ 4). Moreover, DeAngelo Brothers' "performance under the agreement takes place wholly outside the Commonwealth of Pennsylvania. No part of the agreement is performed in Pennsylvania. [DeAngelo Brothers] does not provide services to Union Pacific in Pennsylvania." ( Id. at ¶ 5).

Union Pacific acknowledges "three employees located in Pennsylvania, who work out of their homes." (Doc. 33 at 10.) However, according to affiant Hinners,

[t]hese employees do not work exclusively in Pennsylvania. Rather, they travel throughout the Eastern United States. Their job tasks are to coordinate with Union Pacific Railroad's customers and with other carriers in order to arrange interchange of the customers' goods from eastern railroads to Union Pacific Railroad's western rail system.
These employees only perform a marketing function for Union Pacific Railroad. None holds a position with the authority to make management or executive decision on behalf of Union Pacific Railroad. These employees do not maintain the main business records and the files of Union Pacific Railroad, which are kept in Nebraska. These employees are not designated or authorized to accept service of process nor are they registered as agents for Union Pacific Railroad in the Commonwealth of Pennsylvania.

(Doc. 15-1 at ¶¶ 7-8.) These employees, who make up 0.0065% of Union Pacific's 45, 928-employee workforce, ( see id. at ¶ 4), "played absolutely no role in the negotiations between [DeAngelo ...


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