United States District Court, W.D. Pennsylvania
J.B.S. CRANES & ACCESSORIES, INC., Plaintiff,
ALL-CAL EQUIPMENT SERVICES, INC., Defendant.
OPINION AND ORDER
MARILYN J. HORAN JUDGE
19, 2019, Plaintiff J.B.S. Cranes & Accessories, Inc.
("J.B.S. Cranes") filed suit in the Washington
County Court of Common Pleas against Defendant All-Cal
Equipment Services, Inc. ("All-Cal") alleging
Breach of Contract (Count I) and Tortious Interference with
Contractual Relations (Count II) claims. ECF No. 1-1. On that
same date, All-Cal timely removed the case to the United
States District Court for the Western District of
Pennsylvania pursuant to diversity jurisdiction under 28
U.S.C. § 1332. ECF No. 1. Pending before the Court are
J.B.S. Cranes' Motion to Remand for untimeliness, and
All-Cal's Motion to Dismiss for lack of personal
jurisdiction and improper venue. ECF Nos. 2, 8. For the
following reasons, J.B.S. Crane's Motion to Remand will
be denied, and All-Cal's Motion to Dismiss will be
Cranes is a Pennsylvania Corporation located at 215 Teepee
Road, Canonsburg, Pennsylvania 15317. ECF No. 1-1, at ¶
2. J.B.S. Cranes "manufactures, sells, and services
multiple types of cranes, hoists, jibs and lifters to
customers throughout the United States." Id. at
¶ 6. All-Cal is a California Corporation located at 3718
99 Frontage Road, Stockton, California 95215. Id. at
¶ 3. All-Cal "provides inspections, certifications,
and repairs on a large variety of equipment including cranes,
lifts, forklifts, rigging, and other lifting devices."
Id. at ¶ 7.
2014, J.B.S. Cranes began work on a project for Union Pacific
Railroad in Stockton, California (hereinafter the
"California Project"). Id. at ¶ 8.
J.B.S. Cranes was contracted to install a hoisting machine
for Union Pacific Railroad. Id. at ¶ 10. In
furtherance of its obligations on the California Project,
J.B.S. Cranes engaged All-Cal to purchase and install
equipment for the California Project. Id. at
¶¶ 13, 15, 18. Accordingly, in September 2014 and
November 2014, J.B.S. Cranes submitted to All-Cal a Purchase
Order and two Change Orders. Id. at ¶ 14. The
Purchase Order provided All-Cal with information on the
equipment and installation transactions between J.B.S. Cranes
and All-Cal. Id. at ¶ 18. Both the Purchase
Order and the Change Orders were executed by J.B.S. Cranes in
Washington County, Pennsylvania. Id. at ¶ 19.
In September 2014, All-Cal accepted the Purchase Order and
tendered the hoist and related equipment for the California
Project in Stockton, California. Id. at ¶ 20.
Cranes contends that All-Cal did not object to the terms of
the Purchase Order or Change Orders, specifically citing the
provision that All-Cal would forward all Union Pacific
Railroad inquiries to J.B.S. Cranes. Id. at ¶¶
24, 28. All-Cal, however, established a private line of
direct communications with Union Pacific Railroad, subverting
the contractual restrictions in the Purchase Order and Change
Orders. Id. at ¶¶ 30, 31. Without
informing J.B.S. Cranes, AU-Cal filled orders for Union
Pacific Railroad regarding substantial maintenance and
installation work on the California Project. Id. at
¶¶ 32, 33. J.B.S. Cranes discovered this
communication in February 2018, and requested clarification
from All-Cal. Id. at ¶¶ 32, 35. In
response, All-Cal stated that it was commissioned
individually by Union Pacific Railroad to perform maintenance
and installation work for the Project. Id. at
¶¶ 36, 37. J.B.S. Cranes contends that this is a
material breach of AU-Cal's contractual obligation under
the Purchase Order and Change Orders. Id. at ¶
Motion to Remand
Cranes moves to remand this action alleging that All-Cal
untimely filed its Notice of Removal. A "notice of
removal of a civil action or proceeding shall be filed within
30 days after the receipt by the defendant, through service
or otherwise, of a copy of the initial pleading." 28
U.S.C. § 1446(b). All-Cal, as the removing party
"bears the burden of proving that jurisdiction
exists." Boyer v. Snap-on-Tools Corp,, 913 F.2d
108, 111 (3d Cir. 1990); 28 U.S.C. § 1441. All doubts
regarding removal should be construed in favor of remand.
Boyer, 913 F.2d at 111.
Cranes filed a Writ of Summons against All-Cal in the Court
of Common Pleas of Washington County on December 21, 2018.
ECF No. 9, at 1; ECF No. 13, at 1. Service of original
process pursuant to Pennsylvania Rule of Civil Procedure 404,
the Writ of Summons, was complete on January 2, 2019. ECF No.
9, Ex. 3. On February 7, 2019, J.B.S. Cranes' counsel,
Phillip J. Binotto, spoke with a California attorney, Paul N.
Balestracci, who informed Mr. Binotto that he was counsel for
All-Cal. ECF No. 9, at 2; ECF No. 13, at 1. J.B.S. Cranes
contends that Mr. Binotto and Mr. Balestracci agreed that
when J.B.S. Cranes filed a Complaint in Washington County,
Mr. Binotto would email it Mr. Balestracci. ECF No. 9, at 2.
The Complaint was filed in Washington County on May 17, 2019
and emailed to Mr. Balestracci that same day. Id.
Rule of Civil Procedure 440 governs service of process other
than original process. Pa. R. Civ. P. 440. The Official Note
to Rule 440 directs the reader to Rule 205.4(g), which
provides that once service of original process is complete,
service of pleadings may be completed by email pursuant to an
agreement or consent. J.B.S. Cranes contends that service of
the Complaint pursuant to Rule 205.4(g) was complete on May
17, 2019, when it was sent to Mr. Balestracci's email
address. Pa. R. Civ. P. 205.4(g). Because All-Cal's June
19, 2019 Notice of Removal was not filed within 30 days of
service, J.B.S. Cranes argues that it is untimely and this
action should be remanded. ECF No. 8, at 4; ECF No. 9, at 4.
contends that service of the Complaint by email to Mr.
Balestracci was not proper because he was not the attorney of
record for All-Cal in Washington County. ECF No. 1, at
¶¶ 8-9. Mr. Balestracci communicated to Mr. Binotto
by email stating, in part, "that a complaint in the
matter has not yet been filed;" "I am not a member
of the Pennsylvania Bar, so I am uncertain of the rules of
service;" and he acknowledged that Mr. Binotto had
"kindly agreed to email a copy of any complaint when it
is filed." ECF No. 9, Ex. 5. Given that Mr. Balestracci
stated that he was uncertain of Pennsylvania's rules of
service, it is not clear that he agreed or consented to
service of the Complaint by email or was merely
recognizing counsel's accommodation. Nevertheless, Mr.
Balestracci never formally entered his appearance on behalf
of All-Cal, therefore service is governed by Pennsylvania
Rule of Civil Procedure 440(a)(2)(i), which provides that
"[i]f there is no attorney of record, service shall be
made by handing a copy to the party or by mailing a copy to
or leaving a copy for the party at the address endorsed on an
appearance or prior pleading or the residence or place of
business of the party. . . ." Pa. R. Civ. P.
440(a)(2)(i). Mr. Balestracci is not licensed to practice law
in Pennsylvania, he never entered his appearance on behalf of
All-Cal in Pennsylvania, and All-Cal denies that he
represented All-Cal or acted on its behalf in the action
filed in the Court of Common Pleas of Washington County.
J.B.S. Cranes' emailing a copy of the Complaint to does
not comply with Rule 440(a)(2)(i). There is otherwise no
indication on the docket that J.B.S. Cranes has served or
attempted to serve the Complaint on the "party,"
All-Cal. Id. Therefore, since service of the
Complaint by email was ineffective, All-Cal's Notice of
Removal is not untimely. Accordingly, J.B.S. Cranes'
Motion to Remand is denied.
Motion to Dismiss for Lack of Personal Jurisdiction
accordance with the Federal Rules of Civil Procedure, a
pleading may be dismissed for lack of personal jurisdiction.
Fed.R.Civ.P. 12(b)(2). Whether personal jurisdiction may be
exercised over an out-of-state defendant is a question of law
for the court. Vetrotex Certainteed Corp. v. Consolidated
Fiber Glass Products Co.,75 F.3d 147, 150 (3d Cir.
1996). The plaintiff bears the burden of establishing
personal jurisdiction. O 'Connor v. Sandy Lane Hotel
Co., Ltd., 496 F.3d 312, 316 (3d Cir. 2007). A federal
court may exercise personal jurisdiction over a nonresident
defendant to the extent permissible under the law of the
forum state. Fed.R.Civ.P. 4(k)(1)(A). Under
Pennsylvania's long-arm statute, the Court may assert
personal jurisdiction over a non-resident defendant "to
the fullest extent allowed under the Constitution of the
United States." 42 Pa.C.S.A. § 5322(b); Renner
v. Lanard Toys Ltd.,33 F.3d 277, 279 (3d Cir.1994). To
determine whether there is personal jurisdiction, the court
"must 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, 496 F.3d at 316
(quoting International Shoe Co. v. Washington, 326
U.S. 310, 316 (1945)). Consistent with the requirements of
due process, a District Court must ensure that a defendant is
subjected to personal jurisdiction only where that
"nonresident Defendant has 'certain minimum contacts
[with the forum State] such that the maintenance of the suit
does not offend ...