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Admiral Insurance Co. v. Strauss

United States District Court, E.D. Pennsylvania

September 20, 2017

ADMIRAL INSURANCE COMPANY Plaintiff,
v.
ROBERT STRAUSS, EMILY STRAUSS, EILEEN WALKER, SEAN F. BOGLE, as Personal Representative of the Estate of Calvon Asiaya Williams, Deceased, SEAN F. BOGLE, as Plenary Guardian of the Person and Property of C.W. a Minor; and, FOSTER PARENTS OF THE DEVEREUX FOUNDATION Defendants.

          MEMORANDUM

          C. DARNELL JONES, II JUDGE.

         I. Introduction

         Plaintiff brings the above-captioned action, seeking a declaration that it is not required to defend or indemnify Defendants against the underlying wrongful death suit.[1] Plaintiff amended its original Complaint and Defendants now move to dismiss same for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). For the reasons set forth below, Defendant's Motion shall be granted.

         II. Background

         Plaintiff alleges that on February 16, 2015, the Florida Department of Children and Families (“DCF”), at the direction of The Devereux Foundation, Inc. (“Devereux”), placed Calvon Asiaya Williams and his identical twin brother C.W., in a foster home in Palm Bay, Florida. (Am. Compl. Ex. A, ¶ 19.) The foster home was owned by Kevin Moran and Julie Moran. (Am. Compl. Ex. A, ¶ 19.) The brothers were ultimately placed with foster parents Emily Strauss (E. Strauss), Robert Strauss (R. Strauss), and Eileen Walker (E. Walker). (Am. Compl. Ex. A, ¶ 21.) On March 8, 2015, Calvon Asiaya Williams and his brother C.W. were swinging on a rope that had “a noose-like loop at the end, ” outside their home. (Am. Compl. Ex. A, ¶ 27.) While doing so, Calvon's neck became entangled in the loop of the rope, thereby causing his death by asphyxiation. (Am. Compl. Ex. A, ¶¶ 24-26.) The foster parents, due to their “infirmities, ” were unable to help as C.W. attempted to extricate his brother from the rope and perform CPR on him. (Am. Compl. Ex. A, ¶ 28.)

         Sean Bogle, the Personal Representative of the Estate of Calvon Asiaya Williams and the guardian of the Person and Property of C.W., filed suit in Florida state court against E. Strauss, R. Strauss, and E. Walker (among other defendants), [2] alleging wrongful death and negligence against each foster parent (Am. Compl. Ex. A.) After initiation of this action, E. Strauss, R. Strauss, and E. Walker, requested a defense and indemnity from Admiral Insurance Company (“Admiral”) against the underlying wrongful death suit, under a policy issued to the “Foster Parents of the Devereux Foundation.” (Am. Compl. Ex. D, Bates No. 000192; Am. Compl. Ex. E, Bates No. 000202.) Admiral now seeks a declaratory judgment from this Court, relieving them of the responsibility to defend and indemnify R. Strauss, E. Strauss, and E. Walker. (Am. Compl. ¶ 1.)[3]

         III. Standard of Review

         A. 12(b)(2) Motion to Dismiss for Lack of Personal Jurisdiction

         Pursuant to Federal Rule of Civil Procedure 12(b)(2), a defendant may move to dismiss a claim for lack of personal jurisdiction. Once a defendant has raised this jurisdictional defense, the burden shifts to the plaintiff to present a prima facie case establishing jurisdiction over the non-resident defendants in the forum. Pinker v. Roche Holdings Ltd., 292 F.3d 361, 368 (3d Cir. 2002); see also Miller Yacht Sales, Inc., v. Smith, 384 F.3d 93, 97 (3d Cir. 2004) (“[W]hen 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.”). A plaintiff has the burden to show “with reasonable particularity” enough contact between the defendant and the forum to support the exercise of personal jurisdiction by the forum state. Mellon Bank v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992); see also Action Mfg. Co. v. Simon Wrecking Co., 375 F.Supp.2d 411, 418 (E.D. Pa. 2005) (“In order to establish a prima facie case, the plaintiff must present specific facts that would allow the court to exercise jurisdiction over the defendant.”).

         In determining the existence of personal jurisdiction, courts “must accept all of the plaintiff's allegations as true and construe disputed facts in favor of the plaintiff.” Pinker, 292 F.3d at 368. Once the plaintiffs' “allegations are contradicted by an opposing affidavit . . . [they] must present similar evidence in support of personal jurisdiction.” In re Chocolate Confectionary Antitrust Litig., 602 F.Supp.2d 538, 556 (M.D. Pa. 2009). To counter opposing affidavits, “[p]laintiffs may not repose upon their pleadings in this manner. Rather, they must counter defendants' affidavits with contrary evidence in support of purposeful availment jurisdiction.” Id. at 559. To that end, “[t]he plaintiff must respond to the defendant's motion with “actual proofs”; “affidavits which parrot and do no more than restate [the] plaintiff's allegations . . . do not end the inquiry.” Lionti v. Dipna, Inc., Civ. No. 17-1678, 2017 U.S. Dist. LEXIS 98956, at *3-4 (E.D. Pa. June 27, 2017) (quoting Time Share Vacation Club v. Atl. Resorts, Ltd., 735 F.2d 61, 66, n.9 (3d Cir. 1984); see also Lehigh Gas Wholesale, LLC v. LAP Petro., LLC, Civ. No. 14-5536, 2015 U.S. Dist. LEXIS 36569, at *5 (E.D. Pa. Mar. 23, 2015) (“Plaintiff carries the burden to prove personal jurisdiction using ‘affidavits or other competent evidence.'”) (quoting Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324, 330 (3d Cir. 2009)); In re Chocolate Confectionary, 602 F.Supp.2d at 556-57 (a plaintiff must present contrary evidence in the form of “actual proofs[.]”).

         Personal jurisdiction may be general or specific. To establish personal jurisdiction over a defendant, a court must first apply the relevant state long-arm statute to determine if it may exercise personal jurisdiction; then, the court must determine if that jurisdiction violates the Due Process Clause of the Constitution. IMO Indus. v. Kiekert AG, 155 F.3d 254, 258-59 (3d Cir. 1998). Pennsylvania's long-arm statute provides that a court may exercise personal jurisdiction over a non-resident “to the fullest extent allowed under the Constitution of the United States and may be based on the most minimum contact with this Commonwealth allowed under the Constitution of the United States.” 42 Pa. Cons. Stat. § 5322(b) (2017). The Due Process Clause of the 14th Amendment requires a court to ask, “whether ‘the quality and nature of the defendant's activity is such that it is reasonable and fair to require [that it] conduct [its] defense in that state.'” Time Share, 735 F.2d at 63 (internal citations omitted) (emphasis in original).

         General personal jurisdiction exists when a foreign party maintains “continuous and systematic” contacts with a state and may be sued in that state on any claim, whereas specific personal jurisdiction over a defendant exists when a plaintiff's suit is related to or arises out of a defendant's contacts with the state. Reassure Am. Life Ins. Co. v. Midwest Res., Ltd., 721 F.Supp.2d 346, 353 (E.D. Pa. 2010) (internal citations omitted). To establish specific personal jurisdiction, a plaintiff must show the defendant has “‘minimum contacts' with the forum.” IMO, 155 F.3d at 259 (internal citations omitted). To fulfill this standard, “the defendant must have purposefully directed [its] activities at the forum.” Reassure, 721 F.Supp.2d at 353 (internal citations omitted). This standard provides that a defendant will not be subject to a suit resulting from “‘random, ' ‘fortuitous, ' or ‘attenuated' contacts . . . or . . . the ‘unilateral activity of another party'.” Id. (internal citations omitted). However, personal jurisdiction cannot be avoided simply because “the defendant did not physically enter the forum State.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985).

         Once a court finds that a defendant had established minimum contacts with a forum, it must determine “whether the assertion of personal jurisdiction would comport with ‘fair play and substantial justice.'” Burger King, 471 U.S. at 476 (quoting Int'l Shoe Co. v. Wash., 326 U.S. 310, 320 (1945)). To contradict this finding, a defendant must demonstrate that exercising jurisdiction would be “unreasonable” when weighing certain factors.[4] Reassure, 721 F.Supp.2d at 356 (quoting Burger King, 471 U.S. at 476-77).

         IV. Discussion

         A. Plaintiff Has Failed to Make a Prima Facie Showing of Personal Jurisdiction Over Defendants R. Strauss and E. Walker in the Commonwealth of Pennsylvania

         Plaintiff has failed to establish personal jurisdiction over the Defendants in Pennsylvania because it fails to allege or demonstrate that Defendants purposefully availed themselves of the forum sufficiently to fulfill the minimum contacts analysis.

         Plaintiff contends personal jurisdiction exists because Defendants requested coverage under insurance policies issued to a named insured allegedly domiciled in Pennsylvania and subject to interpretation under Pennsylvania law. In support of this argument, Plaintiff submits that Defendants initiated a contractual relationship with a Pennsylvania domiciled company, and that this contract included Pennsylvania-specific endorsements, subjecting it to interpretation under Pennsylvania law. However, a plaintiff is required to produce evidence that “by entering into [a] contract, [a] particular defendant could foresee impact within Pennsylvania.” Time Share, 735 F.2d at 65-66. The Time Share court held the plaintiff's affidavit “consist[ed] merely of a recitation of unilateral activity on its part, which is insufficient to establish minimum contacts, ” and that “allegations . . . without factual content will not end the inquiry.” Id. at 62-63, 65-66. That court further determined a Pennsylvania choice of law provision in the contract was not enough on its own to “vest jurisdiction” over the defendants. Id. at 65-66. For these reasons, it was ultimately concluded that the plaintiff in Time Share failed to prove the defendant had minimum contacts with the state. Id. at 65-66.

         1.Plaintiff Fails to Prove Defendants Purposely Availed Themselves of the Forum

         Admiral fails to show Defendants purposely availed themselves of the forum for several reasons: it does not establish the existence and location of the named insured (“Foster Parents of the Devereux Foundation”); it does not show Defendants initiated the insurance contract under which they filed a claim for a defense and indemnity; and, it does not show Defendants otherwise performed actions establishing minimum contacts in Pennsylvania.

         Admiral's Amended Complaint alleges that personal jurisdiction over each defendant (R. Strauss, E. Strauss, and E. Walker) is appropriate because they requested a defense and indemnity under policies that were issued to the named insured, “The Foster Parents of the Devereux Foundation.”[5] (Am. Compl. ¶ 8.) The Amended Complaint names the “Foster Parents of the Devereux Foundation” as an interested but not necessary party in the litigation, and alleges said entity is a citizen of Pennsylvania with a principal place of business at 2012 Renaissance Blvd., King of Prussia, Pennsylvania. (Am. Compl. ¶ 7.)

         In its Brief in Opposition to the instant Motion, Plaintiff similarly claims R. Strauss and E. Walker have minimum contacts with Pennsylvania because they “initiated a contractual relationship . . . when they sought defense and indemnity for the lawsuit.” (Pl.'s Br. 12.) They note, “there is no dispute that the policies were issued to a Pennsylvania entity . . . the ‘Foster Parents' of the ‘Devereux Foundation'”;[6] and the insurance contracts listed the insured's address as within Pennsylvania. (Pl.'s Br. 11.) Further, Plaintiff states that “it was [their] understanding that the insured was located in Pennsylvania, ” as reflected on the Policies' Declarations Pages.[7] (Pl.'s Br. 11) (emphasis added). Lastly, based on Plaintiff's aforementioned “understanding, ” it believed the Policies would be subject to and controlled by Pennsylvania law. (Pl.'s Br. 12.) Thus, because Defendants “deliberately and intentionally initiated” an ongoing contractual relationship in Pennsylvania, Plaintiff concludes they purposely directed their activities to Pennsylvania. (Pl.'s Br. 12-13.) Therefore, it is Admiral's position that they filed the instant lawsuit in response to Defendants' request for coverage “under Pennsylvania based Policies.” (Pl.'s Br. 13.)

         a. Plaintiff Fails To Show “Foster Parents of The Devereux Foundation” is a Pennsylvania Entity Capable of Being Sued or Conferring Jurisdiction

         The named insured's Pennsylvania residence is the keystone of Plaintiff's argument. Plaintiff argues that because the purported domicile of “Foster Parents of the Devereux Foundation” is Pennsylvania, Defendants' request for coverage under the policies issued to this named insured establishes personal jurisdiction over Defendants in Pennsylvania. (Am. Compl. ¶ 8.)

         Despite Plaintiff's repeated allegations that it issued a policy to a Pennsylvania based entity, [8] Plaintiff has not shown through affidavit or other sworn evidence that the named insured is a Pennsylvania entity, or exists within the state. (Pl.'s Br. 2-3, 7, 11, 16.) Contrary to Plaintiff's repeated statements, Defendants sharply refute the location and nature of this entity. In the Nolan Declaration, [9] Mr. Nolan attests that after conducting research, he found no entity named the “Foster Parents of the Devereux Foundation” that is affiliated with Devereux under the laws of Pennsylvania. (Defs.' Mot. Dismiss Ex. B, Nolan Decl. ¶ 4.) He concludes that, “the ‘Foster Parents of the Devereux Foundation' is not an entity known to, affiliated with, or sanctioned by Devereux.” (Defs.' Mot. Dismiss Ex. B, Nolan Decl. ¶ 5.)

         In response to this Declaration, Plaintiff asserts numerous times that the policies were issued to a Pennsylvania entity, [10] and changed the nomenclature of the named insured from the “Foster Parents of the Devereux Foundation, ” to “the ‘Foster Parents' of the ‘Devereux Foundation.'” (Pl.'s Br. 11). As recognized in Time Share, “allegations . . . without factual content will not end the inquiry” into personal jurisdiction. Thus, Plaintiff's statements that this entity exists in Pennsylvania, without any other proof, will not support a finding of personal jurisdiction. As stated above, in deciding a 12(b)(2) motion, this Court must construe Plaintiff's facts as true. However, courts are free to revisit facts alleged in support of jurisdiction if these facts are disputed. Aetna, 129 F.Supp.3d at 180. The above assertions regarding the location and nature of the “Foster Parents of the Devereux Foundation” are clearly disputed by Defendants and thus are eligible to be reevaluated by the court.

         Moreover, based on the standard for a 12(b)(2) motion as set forth above, Plaintiff cannot “repose on their pleadings” to survive this motion. In re Chocolate Confectionary, 602 F.Supp.2d at 538. Instead, when a defendant raises a jurisdictional defense, a plaintiff must counter opposing affidavits with similar proof in the form of “sworn affidavits or other competent evidence.” Metcalfe, 566 F.3d at 330. Plaintiff herein has not done this. The affidavit Plaintiff produces in response to Defendants' Motion states that it was “Admiral's understanding” that the named insured was located in Pennsylvania. (Pl.'s Br. Ex. 1 Schiavo Aff. ¶ 5.) Plaintiff repeats its assertions that the policies were issued to a Pennsylvania entity, and uses this averment to support a finding of personal jurisdiction. (Pl.'s Br. ¶¶ 3-5.) Admiral also contends that because the address of the named insured appears on the Declarations Pages of the Policies, the entity must necessarily exist at that location.[11] (Pl.'s Br., Ex. A, Bates No. 000032; Pl.'s Br., Ex. B, Bates No. 000112.) These assertions do not constitute facts or evidence to establish the Pennsylvania location of the named insured. Black's Law Dictionary defines a “fact” as “something that actually exists; an aspect of reality” or, “an actual or alleged event or circumstance.” Black's Law Dictionary (10th ed. 2014). Admiral's “understanding” that an entity exists in a given location is not a fact, nor “competent evidence, ” that it truly exists in a particular location, but merely a belief. Further, the listed address on the policy does not provide additional proof that an entity capable of being sued exists at the given address. Admiral's affidavit does not provide any factual basis for inferring the existence or location of the “Foster Parents of the Devereux Foundation.”

         The lack of evidence proving the existence and location of the “Foster Parents of the Devereux Foundation” in Pennsylvania undermines Plaintiff's argument that Defendants, by requesting indemnity and defense under the policies, have established minimum contacts with the forum.

         i. Plaintiff Does Not Prove Defendants' Initiated a ContractualRel ...


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