United States District Court, E.D. Pennsylvania
HAPPY PHOTO SHOPPES, INC., t/a RIVER LOOP FERRY CORP. OF NJ, Plaintiff,
RIVERSHORE CHARTERS, INC., and MARK PERRY, Defendants.
Austin McHugh United States District Judge.
case concerns a breach of contract action by a Pennsylvania
Plaintiff against Defendants from Virginia. The question
before me is whether, under Pennsylvania's long-arm
statute, this Court can exercise personal jurisdiction over
Defendants. Because I find that Defendants established
constitutionally sufficient minimum contacts with
Pennsylvania, I conclude that jurisdiction is proper.
around September 2012, Alfred Krawitz, president of Plaintiff
of Happy Photo Shoppes, Inc. (Happy Photo),  placed an ad on
the website of Boats and Harbors Magazine, offering
the sale of the Riverloop, a commercial sight-seeing
vessel that was then docked in Philadelphia. Krawitz's ad
attracted the interest of Defendant Mark Perry, a commercial
boat captain and the sole owner of Co-Defendant Rivershore
Charters, Inc. (Rivershore). In September and again in
November, Perry traveled from his home in Virginia to
Philadelphia to inspect the Riverloop and discuss
terms with Krawitz. Krawitz's asking price was too high,
however, and the meetings failed to produce a deal.
Nevertheless, Perry and Krawitz continued their discussions
over the course of the next year-and-a-half through sporadic
phone and e-mail communications. During this time, the City
of Philadelphia revoked Krawitz's docking privileges, and
Krawitz moved the Riverloop to a dock in Wilmington,
Delaware. It was there, in April 2014, that Perry and Krawitz
next met in person. By this time, Krawitz had abandoned his
original plan of an outright sale of the Riverloop
and had decided instead to lease the boat to Rivershore. In
anticipation of a final lease agreement, Perry took
possession of the Riverloop following the April
meeting and piloted the vessel from Delaware first to a Coast
Guard inspection station in Maryland and then to his dock in
Virginia. After additional negotiations by email and phone,
Perry and Krawitz agreed in May on a final set of terms,
which were memorialized in a “Bareboat Boat Charter
Agreement provided for a two-year renewable lease. Rivershore
agreed to pay Happy Photo up to thirty percent of the gross
receipts earned by the Riverloop, but in no event
less than $25, 000 per year, in twelve monthly installments.
Rivershore further agreed to replace and repair, “at
the outset of the lease, . . . carpet, ceiling tiles, roof
a/c, [and] toilet parts” and to provide Happy Photo
with notice before doing so. Happy Photo retained the right
to retake possession of the Riverloop if Rivershore missed a
lease payment, and to terminate the Agreement (for any
reason) upon thirty days' written notice. Though it
contained no forum selection clause, the Agreement stipulated
that it was to be enforced under to Pennsylvania law.
signed the Agreement in Virginia and mailed a completed copy
to Krawitz in Philadelphia. Rivershore sent Happy Photo the
first monthly payment due under the Agreement, but a short
time later, Perry and Kraswitz disagreed over the cost of
repairs to the Riverloop and no further payments
were made. Pursuant to the Agreement's cancellation and
termination provisions, Krawitz retook possession of the
Riverloop in July or August, 2016, and later filed
the instant breach of contract action. Perry and Rivershore,
both residents of Virginia, now seek dismissal for lack of
personal jurisdiction pursuant to Rule 12(b)(2).
survive a motion to dismiss for lack of personal
jurisdiction, a plaintiff bears the burden of establishing
the court's jurisdiction over the moving
defendants.” Miller Yacht Sales, Inc. v.
Smith, 384 F.3d 93, 97 (3d Cir. 2004). Where, as here,
“the court does not hold an evidentiary hearing on the
motion to dismiss, the plaintiff need only establish a prima
facie case of personal jurisdiction and the plaintiff is
entitled to have its allegations taken as true and all
factual disputes drawn in its favor.” Id.
determine whether personal jurisdiction is proper, a district
court sitting in diversity applies the law of the forum
state. Fed.R.Civ.P. 4(e). Pennsylvania's long-arm
statute, 42 Pa. Cons. Stat. Ann. § 5322(b), has a reach
coextensive with the limits of the Fourteenth Amendment's
Due Process Clause. “Accordingly, in determining
whether personal jurisdiction exists, we ask whether, under
the Due Process Clause, the defendant has certain minimum
contacts with Pennsylvania such that the maintenance of the
suit does not offend traditional notions of fair play and
substantial justice.” O'Connor v. Sandy Lane
Hotel Co., 496 F.3d 312, 316 (3d Cir. 2007) (quoting
Int'l Shoe Co. v. Washington, 326 U.S. 310, 316
jurisdiction may be either general or specific. The only
question here is whether Pennsylvania can assert specific
jurisdiction over Defendants.
The inquiry as to whether specific jurisdiction exists has
three parts. First, the defendant must have purposefully
directed its activities at the forum. Second, the litigation
must arise out of or relate to at least one of those
activities. And third, if the prior two requirements are met,
a court may consider whether the exercise of jurisdiction
otherwise comports with fair play and substantial justice.
Id. at 317 (citations omitted).