United States District Court, E.D. Pennsylvania
S. PERKIN UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendant, Rite-Way Enterprise,
Inc.'s 12(b)(2) Motion to Dismiss (Dkt. No. 16) and
Defendant, Rite-Way Enterprise, Inc.'s Brief in Support
of its Rule 12(b)(2) Motion to Dismiss (Dkt. No. 16-9), both
filed on April 19, 2018. Plaintiff, Eddy Pineda's
Response to Defendant, Rite-Way Enterprise Inc.'s
12(b)(2) Motion to Dismiss (Dkt. No. 17) was filed on May 2,
2018. Defendant, Rite-Way Enterprise, Inc's Reply to
Plaintiff's Brief in Opposition to Defendant's Rule
12(b)(2) Motion to Dismiss (Dkt. 32) was filed with leave of
Court on July 11, 2018. This Court has subject matter
jurisdiction pursuant to 28 U.S.C. § 1332. Having
reviewed and considered the contentions of the parties, the
Court is prepared to rule on this matter.
filed a writ of summons on August 31, 2017 against defendants
Richard Chromiak (“Chromiak”), Wolfe Trucking,
Inc. (“Wolfe Trucking”), and Rite-Way
Enterprises, Inc. (“Rite-Way”). Def's. Mot.
¶ 1. A second writ of summons against the same three
defendants was filed on October 17, 2017. Id. Around
that time, the attorney for Chromiak and Wolfe Trucking
informed Plaintiff's attorney that Rite-Way “has no
relationship” to the accident. Id. Ex. A.
filed his complaint in the Court of Common Pleas of
Philadelphia County on December 8, 2017. Def.'s Mot.
¶ 4; Ex. B. p. 2. Defendants Chromiak and Wolfe Trucking
filed a Notice of Removal on December 28, 2017, invoking
diversity jurisdiction, and removed the case to this Court.
Id. ¶ 6; Ex. C. Although Rite-Way consented to
the removal, it reserved all defenses, including its defense
based upon lack of personal jurisdiction. Def.'s Reply to
Pl.'s Opp'n p. 2. Defendants Chromiak and Wolfe
Trucking filed an Answer on January 22, 2018. Rite-Way did
not join in the Answer and has never filed an Answer.
February 2018, the same attorney representing Chromiak and
Wolfe Trucking was retained to represent Rite-Way. Def. Mot.
¶ 11. During a February 28, 2018 conference call with
this Court, counsel for Chromiak and Wolfe Trucking informed
Plaintiff's counsel that Rite-Way is not a proper party
and that personal jurisdiction over Rite-Way is lacking. On
March 26, 2018, Defendants' counsel contacted
Plaintiff's counsel, asking that Rite-Way be voluntarily
dismissed. Id. Ex. G. Plaintiff's counsel did
not agree to dismiss Rite-Way from the litigation,
Id. ¶ 14, and Rite-Way filed a Motion to
Dismiss for lack of personal jurisdiction under Federal Rule
of Civil Procedure 12(b)(2) on April 19, 2018. Plaintiff
filed a Brief in Opposition to Rite-Way's Motion to
Dismiss on May 2, 2018. With leave of Court, Rite-Way's
Reply to Plaintiff's Brief in Opposition was filed on
July 11, 2018.
the averments in the Complaint as true,  the pertinent
facts to this Court's determination are as follows:
October 20, 2015, Plaintiff Eddy Pineda was occupying a
vehicle that was stopped in a parking lot in Luzerne County.
Compl. ¶ 6. At the same time, Defendant Chromiak, within
the course of his employment with Defendant Wolfe Trucking,
was operating a tractor trailer owned by Wolfe Trucking in
the same parking lot. Id. ¶ 8. Chromiak,
driving “at an excessive rate of speed” and
having “failed to make an appropriate turn, ”
struck the front of Plaintiff's vehicle. Compl. ¶ 9.
Plaintiff claims to suffer serious injury and impairments,
including spinal injuries and resulting medical expenses and
loss of earnings. Id. ¶ ¶ 19-21.
is a Pennsylvania resident. Id. ¶ 1. Chromiak
is a California resident. Id. ¶ 2. Wolfe
Trucking and Rite-Way are California corporations with their
principal place of business located in Van Nuys, California.
Id. ¶ ¶ 3, 4; Def.'s Mot.; Ex. C at
¶ ¶ 8-9. Rite-Way claims it is not a parent or
affiliate of Wolfe Trucking and it “did not
control” Wolfe Trucking at the time of the accident.
Notice of Removal ¶ 10; Def.'s Mot. p. 3; Def.'s
Br., Ex. H ¶ 5. However, Plaintiff alleges the companies
have an “intertwined” history that continues to
this day. Pl.'s Br. in Opp'n p. 2; Ex. D, F. Taking
these disputed facts in favor of the plaintiff, the Court
acknowledges some connection between the two Defendant
is a truck brokerage and factoring company. Def's. Mot.
¶ 19. According to Defendants, a truck brokerage company
matches available trucks with freight that needs to be
hauled. Factoring is a form of alternative financing. A
factoring company is a third party that buys a company's
invoices at a discount price to provide cash to the company.
Def's. Mot. ¶ 20; Ex. H ¶ ¶ 8, 9.
According to the affidavit of Rite-Way's Chief Financial
Officer, Jack Wolfe, Rite-Way does not do business in
Pennsylvania; is not registered to do business in
Pennsylvania; has never maintained offices, locations, or
financial accounts in Pennsylvania; has never advertised in
Pennsylvania; and has never employed agents, brokers, or
employees in Pennsylvania. Def.'s Mot. ¶ ¶
21-26; Ex. H ¶ ¶ 2, 12-17. According to Wolfe,
Rite-Way likely provided factoring services relative to the
load being hauled by Wolfe Trucking and Chromiak, but any
such factoring agreement would have been negotiated in
California. Id. Ex. H. ¶ 10-11. Additionally,
Rite-Way's former Secretary, Yale Herr, claims in his
affidavit that Rite-Way did not own, control, or lease the
truck involved in the accident, nor did it employ Chromiak at
any time. Id. Ex. D ¶ 6-7.
STANDARD OF REVIEW
defendant raises the defense of the court's lack of
personal jurisdiction, the plaintiff must establish
“with reasonable particularity sufficient contacts
between the defendant and the forum state” through
“affidavits or competent evidence.”
Dayhoff, 86 F.3d at 1302; Mellon Bank (East)
PSFS, Nat. Ass'n v. Farino, 960 F.2d 1217, 1223 (3d
Cir. 1992) (citing Provident Nat. Bank v. California Fed.
Sav. & Loan Assoc., 819 F.2d 434 (3d Cir. 1987)).
Although it is the plaintiff's burden to demonstrate
facts establishing personal jurisdiction, the court
“must accept all of the plaintiff's allegations as
true and construe disputed facts in favor of the
plaintiff.” Pinker v. Roche Holdings Ltd., 292
F.3d 361, 368 (3d Cir. 2002) (quoting Cateret Sav. Bank,
FA v. Shushan, 954 F.2d 141, 142 n.1 (3d. Cir. 1992)).
Once a plaintiff demonstrates a prima facie case of
personal jurisdiction over a defendant, the defendant has the
burden of establishing the court's exercise of
jurisdiction is unreasonable. Financial Software Sys.,
Inc. v. Questrade, No. 18-742, 2018 WL 3141329, at *2
(E.D. Pa. June 27, 2018) (citing Stann v. Olander Prop.
Mgmt. Co., No. 11-CV-7865, 2014 WL 3628588, at *2 (E.D.
Pa. July 23, 2014)).
4(e) of the Federal Rules of Civil Procedure
“authorizes personal jurisdiction over non-resident
defendants to the extent permissible under the law of the
state where the district court sits.” Mellon
Bank, 960 F.2d at 1221. Pennsylvania's long-arm
statute, 42 Pa. Cons. Stat. § 5322 (1981), permits the
courts of Pennsylvania to exercise personal jurisdiction over
non-resident defendants that comports with “the