GUZZI v. MORANO et al
MEMORANDUM AND/OR OPINION RE: DEFENDANTS MOTION TO DISMISS PLAINTIFF'S AMENDED COMPLAINT FOR LACK OF JURISDICTION, MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM, ON IN THE ALTERNATIVE, MOTION TO TRANSFER THIS ACTION FOR FORUM NON CONVENIENS (DOC. NO.31). SIGNED BY HONORABLE RONALD L. BUCKWALTER ON 10/6/2011. 10/6/2011 ENTERED AND COPIES E-MAILED.(kk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JOSEPH MORANO and
U.S. BENEFIT PARTNERS LLC,
BUCKWALTER, S. J.
October 6, 2011
Currently pending before the Court is Defendants’ Motion to Dismiss Plaintiff’s Amended
Complaint for Lack of Jurisdiction and/or for Failure to State a Claim, or, in the Alternative, to
Transfer for Forum Non Conveniens. For the following reasons, the Motion is denied in its entirety.
According to the facts set forth in the First Amended Complaint, Defendant U.S. Benefit
Partners, LLC (“USBP”) is in the business of, among other things, selling insurance policies through
large marketing channels. (Am. Compl. ¶ 16.) In April of 2005, Plaintiff Peter Guzzi entered into a
verbal agreement with Defendant USBP and its part-owner, Defendant Joseph Morano, whereby
Defendants agreed to pay Plaintiff one-third of USBP’s gross profits on distribution channels
secured by the Plaintiff. (Id. ¶ 17.) As a direct result of Plaintiff’s efforts, USBP secured several
high level contracts. (Id. ¶ 18.) In addition, USBP secured distribution relationships that totaled
more than four million dollars in revenue. (Id. ¶ 19.)
In March 2007, Defendants “wrongfully” terminated their agreement with Plaintiff. (Id. ¶¶
20-21.) Despite Plaintiff’s efforts and success and despite his generation of significant revenue for
the Defendants, Defendants did not compensate him pursuant to the agreement. (Id. ¶ 22-23.)
Likewise, Plaintiff was not compensated for future revenue for application renewals, as provided in
the oral contract. (Id. ¶ 24.) Ultimately, at the time of Defendants’ breach, Plaintiff was owed
commissions and/or salary in excess of $175,000, plus future profits on insurance contract renewals.
(Id. ¶ 25.) Despite his demands, these amounts have not been paid by Defendants. (Id. ¶ 26.)
On March 15, 2010, Plaintiff initiated the present litigation. Following some initial motion
practice, Plaintiff filed a First Amended Complaint on March 18, 2011, setting forth three causes of
action. Count I alleges breach of contract. (Id. ¶¶ 31-34.) Count II claims a violation of the
Pennsylvania Wage Payment and Collection Law, 43 Pa.C.S § 260.2a. (Id. ¶¶ 35-42.) Finally,
Count III seeks an accounting of the precise sums owed to him under the aforementioned contract.
(Id. ¶¶ 43-46.) Plaintiff further alleges that Defendant Morano intermingled USBP’s corporate
funds with his own funds and diverted corporate funds for his own use, thereby making USBP his
“alter ego.” (Id. ¶ 27.) Accordingly, Plaintiff asserts that the corporate veil should be pierced,
making Defendant Morano personally liable for any breach of contract by USBP. (Id. ¶¶ 28-29.)
On April 1, 2011, Defendants filed the present Motion to Dismiss for Lack of Jurisdiction,
Motion to Dismiss for Failure to State a Claim, or, in the Alternative, Motion to Transfer this Action
for Forum Non Conveniens. Following receipt of an extension of time, Plaintiff filed his Response
in Opposition on June 17, 2011. Defendants filed a Reply Brief on July 28, 2011, Plaintiff
submitted a Sur-reply Brief on August 29, 2011, and Defendants filed a Reply to Plaintiff’s Surreply on September 14, 2011.
Faced with this broad-reaching Rule 12 Motion, the Court turns first to Defendants’ personal
jurisdiction argument. Second, the Court discusses Defendants’ Motion to Dismiss for failure to
state a claim. Finally, the Court considers the Motion to Dismiss for forum non conveniens.
MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION1
Standard for Motion to Dismiss for Lack of Personal Jurisdiction
Motions to dismiss for lack of personal jurisdiction under Federal Rule of Civil Procedure
12(b)(2) require the court to accept as true the allegations of the pleadings and all reasonable
inferences therefrom, and to resolve all factual disputes in favor of the plaintiff. Fed. R. Civ. P.
12(b)(2); see also Pinker v. Roche Holdings Ltd., 292 F.3d 361, 368 (3d Cir. 2002). The Rule,
however, “does not limit the scope of the court’s review to the face of the pleadings”; rather the
court must consider any affidavits submitted by the parties. Scott v. Lackey, No. Civ.A.02-1586,
2005 WL 2035598, at *1 (M.D. Pa. Aug. 11, 2005).
Although a defendant has the initial burden of raising the defense of lack of personal
jurisdiction, once such a defense is raised, the burden shifts to the plaintiff to demonstrate facts that
suffice to support an exercise of personal jurisdiction. Provident Nat. Bank v. Cal. Fed. Sav. &
Loan Ass’n, 819 F.2d 434, 437 (3d Cir. 1987); Cumberland Truck Equip. Co. v. Detroit Diesel
Corp., 401 F. Supp. 2d 415, 418 (E.D. Pa. 2005). Plaintiff may do so through affidavits or
At the outset, Plaintiff argues, without any legal citation in support, that the Court should
dismiss Defendants’ Motion for failure to provide a certification indicating that the maker of any
statement will be subject to penalties if any of the statements are willfully false. (Pl.’s Resp.
Opp’n 2.) Federal Rule of Civil Procedure 11, however, expressly provides that, “[u]nless a rule
or statute specifically states otherwise, a pleading need not be verified or accompanied by an
affidavit.” Fed. R. Civ. P. 11(a) (emphasis added). Rather, by signing a motion, an attorney
verifies that the motion is not frivolous, is being submitted in good faith, and has factual support.
Id. at 11(b). Defendants’ counsel clearly signed the Motion. Nothing in the Rule otherwise
requires, as Plaintiff claims, “a certification of an individual with . . . personal knowledge of the
circumstances which form the basis of this litigation.” (Pl.’s Resp. Opp’n 2.)
competent evidence that show sufficient contacts with the forum state. De Lage Landen Fin. Servs.,
Inc. v. Rasa Floors, LP, No. Civ.A.08-0533, 2008 WL 4822033, at *3 (E.D. Pa. Nov. 4, 2008).
Such contacts must be established with “reasonable particularity,” to present a prima facie case.
Mellon Bank (East) PSFS, Nat’l Ass’n v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992) (quoting
Provident, 819 F.2d at 437). If the plaintiff meets this burden, the defendant must then establish the
presence of other considerations that would render personal jurisdiction unreasonable. De Lage,
2008 WL 4822033, at *3 (citing Carteret Sav. Bank v. Shushan, 954 F.2d 141, 150 (3d Cir. 1992)).
Under Federal Rule of Civil Procedure 4(k)(1)(A), a federal court may exercise personal
jurisdiction over a non-resident defendant to the extent provided by the law of the state in which the
federal court sits. Fed. R. Civ. P. 4(k)(1)(A); see also Martin v. Citizens Fin. Group, Inc., No.
Civ.A.10-260, 2010 WL 3239187, at *3 (E.D. Pa. Aug. 13, 2010). Pennsylvania law, which
governs the present case, necessitates the application of Pennsylvania’s long-arm statute, 42 Pa. C.S.
§ 5322. Under this statute, personal jurisdiction of Pennsylvania courts over nonresident defendants
is permitted “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); see Mellon Bank, 960 F.2d at 1221 (“The
Pennsylvania statute permits the courts of that state to exercise personal jurisdiction over
nonresident defendants to the constitutional limits of the due process clause of the fourteenth
amendment.”). Therefore, a court need only inquire whether the exercise of personal jurisdiction
over the defendant would be constitutional under the Due Process Clause. Mellon Bank, 960 F.2d
at 1221. Pursuant to such constitutional considerations, physical presence within the forum is not
required to establish personal jurisdiction over a nonresident defendant. IMO Indus., Inc. v. Kiekert
AG, 155 F.3d 254, 259 (3d Cir. 1998). Instead, personal jurisdiction may be based on either a
defendant’s general contacts or his specific contacts with the forum. Gen. Elec. Co. v. Deutz AG,
270 F.3d 144, 150 (3d Cir. 2001).
“General jurisdiction depends on a defendant having maintained ‘continuous and systematic
contacts’ with the forum state.” D’Jamoos es rel. Weingeroff v. Pilatus Aircraft Ltd., 566 F.3d 94,
107 (3d Cir. 2009) (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415-16
(1984)). Proof of such contact requires a showing of “extensive and pervasive” activity in the forum
state. See Reliance Steel Prods. Co. v. Watson, Ess, Marshall, & Engass, 675 F.2d 587, 589 (3d
Cir. 1982) (quotations omitted). The defendant’s contacts need not be related to the cause of action
being litigated. McMullen v. Eur. Adoption Consultants, Inc., 109 F. Supp. 2d 417, 418 (W.D. Pa.
2000). If the foreign defendant “maintains ‘continuous and systematic’ contacts with a state, the
state has general personal jurisdiction over the party, and the non-resident may be sued in that state
on any claim.” Wilmington Fin., Inc. v. Moonis, No. Civ.A.08-2365, 2008 WL 4661033, at *3
(E.D. Pa. Oct. 21, 2008) (quotations omitted).
In the absence of “continuous and systematic” contacts, a plaintiff may rely on “specific
jurisdiction” where the cause of action is related to or arises out of the defendant’s contacts with the
forum. IMO Indus., 155 F.3d at 259 (citing Helicopteros, 466 U.S. at 414 n.8). Proper
establishment of specific jurisdiction under the Due Process Clause requires satisfaction of a threepart test.2 Louis A. Grant, Inc. v. Hurricane Equip., Inc., No. Civ.A07-438, 2008 WL 892152, at *3
Both Plaintiff and Defendant cite the three-pronged test set forth by the Pennsylvania Superior
Court in Proctor & Schwartz v. Cleveland Lumber Co., 323 A.2d 11 (Pa. Super. 1974). The
Pennsylvania Supreme Court, however, completely abrogated the Proctor test in favor of the
(W.D. Pa. Apr. 2, 2008). First, the plaintiff needs to show that the defendant has “constitutionally
sufficient ‘minimum contacts’ with the forum.” IMO Indus., 155 F.3d at 259 (citing Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985)). Second, the plaintiff’s claim must “arise out of or
relate to those activities.” Helicopteros, 466 U.S. at 414. Third, the reviewing court should
consider additional factors to ensure that the exercise of jurisdiction otherwise “comport[s] with
‘fair play and substantial justice.’” Burger King, 471 U.S. at 476 (quoting Int’l Shoe Co. v.
Washington, 326 U.S. 310, 320 (1945)); see also O’Connor v. Sandy Lane Hotel Co., Ltd., 496 F.3d
312, 317 (3d Cir. 2007) (enumerating the three elements of specific jurisdiction).
In the present case, Plaintiff does not assert that the Court has general jurisdiction over the
Defendants. Rather, he claims that Defendants have minimum contacts with Pennsylvania, from
which the present dispute arises, such that this Court’s exercise of jurisdiction over them will not
violate traditional notions of fair play and substantial justice. Defendants, in turn, respond that any
contacts with Pennsylvania are too attenuated to constitutionally allow for the extension of personal
jurisdiction over them. In an effort to resolve this dispute, the Court now turns to an analysis of the
three steps enumerated by the Supreme Court.
Whether Defendants Have Sufficient Minimum Contacts with
Pennsylvania to Warrant the Exercise of Personal Jurisdiction
To satisfy the first two components of the specific jurisdiction test, the acts identified by
plaintiff must be “such that [the defendant] should reasonably anticipate being haled into court [in
the forum state].” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). It has
more flexible approach adopted by the United States Supreme Court decision in Burger King
Corp. v. Rudzewicz, 471 U.S. 462 (1985) and its progeny. See Kubik v. Letteri, 614 A.2d 1110,
1115 (Pa. 1992). Accordingly, Proctor is no longer good law.
long been recognized that minimum contacts necessary to support specific jurisdiction exist only
where the defendant “has purposefully directed its activities toward the residents of the forum state .
. . or otherwise ‘purposefully avail[ed] itself of the privilege of conducting activities within the
forum State, thus invoking the benefits and protections of its laws.’” IMO Indus,, 155 F.3d at 259
(quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958) (other internal quotations omitted)). “This
test is intended to protect a non-resident defendant from jurisdiction based on contacts that are
‘random, fortuitous,’ or ‘attenuated,’ or that result from the unilateral activity of another party or a
third person.” Pullman Fin. Corp. v. Hotaling, No. Civ.A.07-1703, 2008 WL 2563372, at *4 (W.D.
Pa. June 24, 2008) (quoting Burger King, 471 U.S. at 475). As noted by the United States Court of
Appeals for the Third Circuit, “in the course of this necessarily fact-sensitive inquiry, the analysis
should hew closely to the reciprocity principle upon which specific jurisdiction rests . . . . With
each purposeful contact by an out-of-state resident, the forum state’s laws will extend certain
benefits and impose certain obligations . . . . specific jurisdiction is the cost of enjoying the
benefits.” O’Connor, 496 F.3d at 323 (internal citations omitted).
In the context of a contract dispute between residents of different states, “[m]erely entering
into a contract with a forum resident does not subject a nonresident to personal jurisdiction.”
Quandel Grp. v. Chamberlin Co., Inc., No. Civ.A.98-5762, 1999 WL 382878, at *2 (E.D. Pa. June
14, 1999) (citations omitted). Nonetheless, “[i]t is sufficient for purposes of due process that the
suit was based on a contract which had substantial connection with [the forum] State.” McGee v.
Int’l Life Ins. Co., 355 U.S. 220, 223 (1957). The question of who initiated the relationship is less
significant than “the intention to establish a common venture extending over a substantial period of
time.” Gen. Elec. Co. v. Deutz AG, 270 F.3d 144, 150-51 (3d Cir. 2001). When assessing whether
minimum contacts are present in a contracts case, a court should look to the terms of the agreement,
the place and character of prior negotiations, performance, contemplated future consequences,
resolution of post-contract difficulties, and the course of dealings between the parties. Id. at 150;
Mellon Bank, 960 F.2d at 1223. Additionally, mail and telephone contacts about the performance
of the contract and directed at the forum state may support jurisdiction. Shanks v. Wexner, No.
Civ.A.02-7671, 2003 WL 1343018, at *3 (E.D. Pa. Mar. 18, 2003) (citing Grand Entm’t Grp., Ltd.
v. Star Media Sales, Inc., 988 F.2d 476, 482 (3d Cir. 1993)). Finally, “[i]n contract cases, courts
should inquire whether the defendant’s contacts with the forum were instrumental in either the
formation of the contract or its breach.” Gen. Elec., 270 F.3d at 150.
Several analogous cases arising in this Court offer persuasive guidance. First, in Elbeco Inc.
v. Estrella de Plato, Corp., 989 F. Supp. 669 (E.D. Pa. 1997), a Pennsylvania-based shirt
manufacturer brought a breach of contract action against non-resident subcontractors due to their
misrepresentation of their capability to meet their contractual obligations. Id. at 672. Upon review
of the defendants’ motion to dismiss for lack of personal jurisdiction, the court remarked that the
defendants had reached into Pennsylvania to solicit the plaintiff to enter into a contract and, upon
execution of the agreement, continued contact with Pennsylvania via mail and telephone. Id. at 674.
In addition, representatives of the defendants visited Pennsylvania in connection with the contract
on two separate occasions. Id. Ultimately, the court held that “[d]efendants have purposely availed
themselves of the opportunity to do business in Pennsylvania by voluntarily seeking out a
Pennsylvania corporation with whom to contract. Thus, defendants were aware that they were
contracting with a Pennsylvania corporation and that a breach of contract would result in economic
harm in Pennsylvania.” Id. at 675. Although the defendants argued that they did not maintain an
office, bank account, real property, or telephone listing in Pennsylvania, the court responded that
“‘where the defendants have received the benefits and protections of the forum’s laws by engaging
in business activities with a forum resident, the courts have consistently rejected the notion that an
absence of physical contacts can defeat personal jurisdiction there.’” Id. (quoting Mellon Bank, 960
F.2d at 1225) (further quotations omitted). Accordingly, defendants were deemed subject to
personal jurisdiction in Pennsylvania. Id.
Similarly, in Mickleburgh Mach. Co., Inc. v. Pacific Econ. Dev. Co., 738 F. Supp.159,
(E.D. Pa. 1990), the defendant was a California corporation in the business of procuring heavy
machinery in the United States for clients in Asia. Id. at 160. It had no office, mailing address,
tangible or intangible asset, employee, director, or agent in Pennsylvania, nor did it advertise in
Pennsylvania. Id. The defendant contacted the plaintiff, a Pennsylvania entity, for assistance in
finding new and used vertical boring mills on behalf of the defendant’s foreign client. Id. at 160.
The parties thereafter entered into an exclusive dealing agreement to that effect. Id. Although the
plaintiff originally secured a Tennessee seller of such a boring mill, the deal ultimately collapsed.
Id. at 160-61. By way of several subsequent communications, the defendant indicated that it still
required the plaintiff’s assistance to locate a seller and acknowledged the plaintiff as its sole
representative for those purposes. Id. at 161. The plaintiff, in turn, engaged in further efforts under
the agreement. Id. At some point, however, the plaintiff learned that the defendant purchased a
vertical boring mill directly from another machine company without using the plaintiff as an
intermediary. Id. The plaintiff brought suit for violation of the exclusive dealing agreement and the
defendant responded with a motion to dismiss the complaint for lack of personal jurisdiction. Id.
On review, the court acknowledged that although the mere entry into a contract was
insufficient to establish minimum contacts:
[I]n this instance PEDC played an active role in both developing and extending
its contacts in the forum. PEDC initiated negotiations with the Pennsylvania plaintiff.
PEDC and Mickleburgh communicated at frequent intervals over the telephone. PEDC
sent written correspondence to Mickleburgh’s Pennsylvania headquarters on at least ten
occasions. Each letter further solidified the relationship between the two. In fact, in
both the original agreement and in a subsequent letter PEDC acknowledges
Mickleburgh’s role as its purchasing agent. This is not a case where the defendant is a
passive player or is unaware of the citizenship of the plaintiff. . . . PEDC cultivated the
relationship with Mickleburgh and could reasonably expect to answer for any alleged
misdeeds arising out of that relationship in Pennsylvania.
PEDC could reasonably foresee that the signing of the agreement would lead to
economic impact in this forum. . . . Although Mickleburgh spent most of its efforts to
secure the boring mill in other states, it engaged in fiscally burdensome activity in
Pennsylvania. Moreover, if the sale of the mill had been completed, the parties’ contract
called for performance by PEDC in Pennsylvania. PEDC was to deliver a letter of credit
to a bank in Philadelphia out of which Mickleburgh was to draw its compensation. . .
Lastly, and perhaps most importantly, is that even after the first attempt to secure
the boring mill failed, PEDC again sought Mickleburgh’s aid in finding an alternative
supplier showing that PEDC intended to “participat[e] in the continuation of th[e]
relationship.”. . . It seems that PEDC intended to create a long-term relationship with
Mickleburgh going beyond just a single transaction. I find that PEDC purposefully
established more than minimum contacts with Pennsylvania and could have expected
to be “haled into court” here if a dispute with Mickleburgh developed.
Id. at 162-63.
Similarly, in the present matter, the Court finds that Defendants, a New Jersey resident and
corporation, have sufficient minimum contacts with Pennsylvania to allow for the exercise of
personal jurisdiction. The Amended Complaint avers that “the cause of action arises out of a
contract performed by the Plaintiff in the Commonwealth of Pennsylvania; the parties had an
ongoing business relationship; and the Defendants profited from that contract.” (Am. Compl. ¶ 9.)
Plaintiff Peter Guzzi’s Affidavit, submitted in a Sur-reply Brief to the Motion to Dismiss, elaborates
further on the bases for this allegation.3 According to its averments, Defendants needed Plaintiff’s
name recognition within the insurance industry in the Tri-state area. (Pl.’s Sur-Reply to Mot. to
Dismiss, Ex. A (“Guzzi Aff.”) ¶ 18.) Thus, via oral agreement reached in early 2005, Joseph
Morano, Robert Gladstone, and Peter Guzzi contracted to each become a one-third partner in USBP.
(Id. ¶ 1.) Thereafter, Plaintiff began working out of an office located in Willow Grove,
Pennsylvania. (Id.) From this office, Plaintiff conducted official USBP business from
approximately April 2005 through March 2007, and held himself out as a USBP representative.
(Id.) In the course of the relationship, Plaintiff and Defendant Joseph Morano would often meet
with potential insurance vendors at the Pyramid Club, located at 1735 Market Street, Philadelphia,
Pennsylvania, where USBP maintained an office as a member. (Id. ¶ 3.) Indeed, multiple meetings
took place in Philadelphia, with companies such as Elder Health, Humana, and Conseco, to
negotiate agency agreements between USBP and the insurers for sale of insurance in various states,
including Pennsylvania. (Id. ¶¶ 5, 7, 10.) During these negotiations, the parties agreed that Plaintiff
would work in the Commonwealth, on behalf of USBP, to recruit agents to sell insurance policies to
individuals residing in Pennsylvania. (Id. ¶ 16.) Ultimately, and again in furtherance of the
Agreement, Defendants obtained pecuniary benefit from Plaintiff’s creation and maintenance of
business relationships involving such insurance policy sales in Pennsylvania. (Id. ¶¶ 5-7.) For
every insurance policy sold by the Pennsylvania agents recruited by Plaintiff, USBP received a
commission from the underwriting insurance company. (Id. ¶¶ 10-12.) Plaintiff’s work was
Although the Court has some concern with Plaintiff’s failure to submit this affidavit until his
Sur-reply Brief, we note that Defendants’ original Motion to Dismiss offered very little substance
to which Plaintiff could reply. It was not until Defendants’ Sur-reply Brief that Defendants
clarified and expanded on their arguments.
performed entirely on behalf of USBP and not on behalf of any of the insurance companies with
which USBP contracted. (Id. ¶¶ 16-17, 19.) Finally, Plaintiff suffered all harm in Pennsylvania in
the form of lost wages owed to him under the terms of the agreement with Defendants. (Am.
Compl. ¶¶ 27, 33.)
Taking as true the facts set forth in both the Amended Complaint and Plaintiff’s affidavit,4
the Court finds more than sufficient minimum contacts to support the exercise of personal
jurisdiction. Defendants reached into Pennsylvania to enter into a contract with Plaintiff.
Thereafter, Defendants and/or their agents attended several meetings with Plaintiff and potential
customers in hopes of furthering their business. These efforts gave rise to a long-term relationship
between the parties – going beyond just a single transaction – from which Defendants hoped to, and
did in fact, obtain substantial pecuniary benefit from Pennsylvania. In short, Defendants
purposefully created minimum contacts with Pennsylvania and could have expected to be “haled
into court” here if a dispute with Plaintiff arising out of the agreement developed.
In an effort to avoid this outcome, Defendants offer two alternative arguments, both of
which the Court finds unavailing. First, Defendants contend that the Pennsylvania long-arm statute,
42 Pa. C.S. § 5322, is a direct indication that the Pennsylvania General Assembly did not intend to
Defendants’ response to these allegations does nothing more than pose a series of
questions asking Plaintiff to detail more specifics of the alleged contacts, the meetings, who
attended, what was discussed, etc. This argument, however, misconstrues Plaintiff’s pleading
obligations. Although the Federal Rules of Civil Procedure require factual allegations sufficient
to raise the right to relief above the speculative level, prevailing jurisprudence maintains Rule
8(a)’s general requirement of only a short and plain statement setting forth the right to relief.
Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008).
To the extent that Defendants dispute the facts set forth in Plaintiff’s affidavits and supply
their own contrary allegations, the law requires that, at this stage, the Court reads the facts in the
light most favorable to Plaintiff. Pinker, 292 F.3d at 368.
exercise jurisdiction over insurance agents that are merely recruiting agents within the
Commonwealth of Pennsylvania. Defendants go on to observe that Section 5322(a)(6) of the statute
only extends to those (1) who directly insure persons, property, or risks in the Commonwealth, or
(2) who control, are agents, or are directors of an insurance company incorporated in Pennsylvania.
By omission, Defendants reason that the provision excludes all others in the insurance industry from
the reach of the long-arm statute.
This argument, however, relies on two false presumptions. First, nothing in Section
5322(a)(6) suggests that that provision is the exclusive source of personal jurisdiction over all
persons engaged in the insurance business. Indeed, the long-arm statute also extends to “[t]he doing
by any person in this Commonwealth of a series of similar acts for the purpose of thereby realizing
pecuniary benefit or otherwise accomplishing an object” and “[t]he doing of a single act in this
Commonwealth for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing
an object with the intention of initiating a series of such acts.” 42 PA . CONS. STAT . § 5322(a)(1)(ii)
& (ii). Second, even to the extent that no portion of section (a) of the long-arm statute specifically
encompasses Defendants’ actions, section (b) expressly states that, “[i]n addition to the provisions
of subsection (a) the jurisdiction of the tribunals of this Commonwealth shall extend . . . 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.”
Id. § 5322(b). As indicated above, Defendants’ contacts with the Commonwealth and efforts to
purposefully avail itself of the privilege of conducting activities with the forum are sufficient to
meet such basic constitutional standards.
Defendants’ second, and somewhat more ambiguous argument, asserts that USBP acted
solely as a general agent of insurance company Humana, as well as other insurance companies. As a
result, USBP never directly contracted to insure any person, property, or risk located within the
Commonwealth of Pennsylvania. In fact, they note that once agents, such as Plaintiff, were
recruited by Defendants to find insurance distribution channels, the agents completed their insurance
sales directly with the insurance companies.
Aside from Plaintiff’s challenge to Defendants’ factual characterization of this relationship,
Plaintiff correctly notes that even if Defendants acted only as a general agent of the insurance
companies, this fact would not diminish their own personal contacts with the Commonwealth.
Plaintiff has alleged that Defendants became licensed to sell insurance in the Commonwealth,
intentionally entered into producer appointments to sell insurance in the Commonwealth, held
business meetings in Pennsylvania to negotiate the terms of the contracts to sell insurance policies,
entered and intentionally contracted with agents to sell insurance policies in the Commonwealth,
and received a commission from the insurance companies as a result of such sales. The simple fact
that the actual policies sold were ultimately underwritten by other companies does not undermine
Defendants’ otherwise intentional contact with the forum.
In short, the Court finds that Plaintiff has both alleged sufficient minimum contacts by
Defendants with Pennsylvania and established that the claims at issue arose out of such contacts.
Accordingly, the first and second elements of the specific jurisdiction test have been satisfied.
Whether the Assertion of Personal Jurisdiction Comports With the
“Traditional Notions of Fair Play and Substantial Justice”
Defendants additionally challenge Plaintiff’s showing under the third prong of the specific
jurisdiction test, requiring that a reviewing court ensure that the exercise of jurisdiction otherwise
“comport[s] with ‘fair play and substantial justice.’” Burger King, 471 U.S. at 476 (quoting Int’l
Shoe, 326 U.S. at 320). Specifically, Defendants offer the cursory argument that because they have
not had any contact with the Commonwealth of Pennsylvania and do not profit from the
Commonwealth, and because Plaintiff was not harmed or caused tortious injury in the
Commonwealth by Defendants, it “would be completely unfair for this Honorable Court to exercise
jurisdiction over the Defendants in this Case.” (Defs.’ Mot. to Dismiss 9.)
This argument, however, fails to mention, let alone analyze, the five factors that courts must
consider when balancing jurisdictional reasonableness, including: (1) the burden on the defendant;
(2) the forum state’s interest in adjudicating the dispute; (3) the plaintiff’s interest in obtaining
convenient and effective relief; (4) the interstate and international judicial system’s interest in
obtaining the most efficient resolution of controversies; and (5) the shared interest for the several
states in furthering fundamental substantive social policies. Burger King, 471 U.S. at 477 (quoting
World-Wide Volkswagen, 444 U.S. at 292). Such factors all weigh in favor of this Court’s
assertion of personal jurisdiction. Defendants suffer minimal burden in crossing the river from New
Jersey into Philadelphia to litigate this case. Further, Pennsylvania bears a significant interest in
adjudicating the dispute and ensuring that its residents, particularly those doing business in the
Commonwealth, are not harmed. Plaintiff, a Pennsylvania resident, has chosen this forum as a
means for him to obtain convenient and effective relief. Finally, there are no procedural interests or
substantive social policies of other states that come into play. Accordingly, the Court finds that the
exercise of personal jurisdiction would not offend any due process concerns.
Conclusion as to Personal Jurisdiction
In sum, the Court finds that Plaintiff has met his burden of demonstrating facts sufficient to
support the exercise of personal jurisdiction. By contrast, Defendants have not set forth any viable
considerations that would render jurisdiction unreasonable or unfair. Thus, the Motion to Dismiss
for lack of personal jurisdiction is denied.5
MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
Standard of Review
Under Rule 12(b)(6), a defendant bears the burden of demonstrating that the plaintiff has not
stated a claim upon which relief can be granted. Fed. R. Civ. P.12(b)(6); see also Hedges v. United
States, 404 F.3d 744, 750 (3d Cir. 2005). In Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), the
United States Supreme Court recognized that “a plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Id. at 555. Following these basic dictates, the Supreme
Court, in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), subsequently defined a two-pronged approach to
a court’s review of a motion to dismiss. “First, the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at
1949. Thus, although “Rule 8 marks a notable and generous departure from the hyper-technical,
code-pleading regime of a prior era . . . it does not unlock the doors of discovery for a plaintiff
In addition to the personal jurisdiction argument, Defendants set forth a two-sentence challenge
to venue that asserts, “[a]s discussed in Section I regarding lack of personal jurisdiction, venue is
improper in this Court for the same reasons. As such, each of the allegations contained therein
are incorporated by reference to support the allegation that venue in the Commonwealth of
Pennsylvania is improper.” (Defs.’ Mot. Dismiss 10.) Because the Court rejected all of
Defendants’ arguments in support of its Motion to Dismiss for lack of personal jurisdiction, we
likewise reject Defendants’ venue claim.
armed with nothing more than conclusions.” Id. at 1950. Second, the Supreme Court emphasized
that “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id.
“Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals
observed, be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. A complaint alleges, but does not show, an entitlement to
relief when the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct. Id.; see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 232-34 (3d Cir. 2008)
(holding that: (1) factual allegations of complaint must provide notice to defendant; (2) complaint
must allege facts suggestive of the proscribed conduct; and (3) the complaint’s “‘factual allegations
must be enough to raise a right to relief above the speculative level.’” (quoting Twombly, 550 U.S.
Notwithstanding these new dictates, the basic tenets of the Rule 12(b)(6) standard of review
have remained static. Spence v. Brownsville Area Sch. Dist., No. Civ.A.08-626, 2008 WL
2779079, at *2 (W.D. Pa. July 15, 2008). The general rules of pleading still require only a short and
plain statement of the claim showing that the pleader is entitled to relief and need not contain
detailed factual allegations. Phillips, 515 F.3d at 233. Further, the court must “accept all factual
allegations in the complaint as true and view them in the light most favorable to the plaintiff.” Buck
v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). Finally, the court must “determine
whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.”
Pinkerton v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002).6
Both parties submit evidence to this Court concerning the Rule 12(b)(6) Motion. None of this
evidence may be considered without converting the Motion into a Motion for Summary
Judgment under Federal Rule of Evidence 12(d), requiring both proper notice and an opportunity
The second portion of Defendants’ Motion makes a general contention that the Amended
Complaint fails to state a claim upon which relief may be granted. Defendants argue that because
the Amended Complaint fails to set forth specific allegations in support of the three alleged causes
of action — breach of contract, wage claim, and an accounting – it must be dismissed under Federal
Rule of Civil Procedure 12(b)(6).7 The Court addresses each cause of action individually.
Breach of Contract
To establish a breach of contract under Pennsylvania law, a party must demonstrate (1) the
existence of a contract, including its essential terms; (2) a breach of duty imposed by the contract;
and (3) damages. Ware v. Rodale Press, Inc., 322 F.3d 218, 225 (3d Cir. 2003). “When a plaintiff
pleads a contract according to its legal effect, the complaint does not need to resort to formulaic
recitation of the elements of the alleged contract; rather, the complaint must allege facts sufficient to
for further briefing. As neither party has made such a request, discovery has yet to begin in this
case, and conversion would result in additional filings beyond the five briefs already submitted in
connection with this Motion, the Court disregards the extrinsic evidence and considers the
Motion solely under the Rule 12(b)(6) standards. If desired, the parties may raise such evidence
in a properly-filed motion for summary judgment.
Defendants’ Reply to Plaintiffs’ Reply Brief — i.e. their third brief on this Motion — raises,
for the first time, a statute of limitations argument. Defendants specifically argue that “[i]t is
evident now that the most recent dealings the Plaintiff had with Defendants was in March 2007.”
(Defs.’ Reply Br. to Pl.’s Reply 3.) They go on to assert that because the statute of limitations for
a contract claim under Pennsylvania law is four years, 42 Pa. C.S. § 5525(a), and the statute of
limitations for a Wage Payment and Collection Law claim is three years, 42 Pa. C.S. § 260.9a(g),
Plaintiff’s claims are barred.
Given the absence of any explanatory argument by Defendants, the Court must reject this
assertion. Plaintiff’s Complaint was filed on March 1, 2010. Assuming arguendo that
Defendants are correct in asserting that the statutes of limitation began running in March 2007,
Plaintiff’s Complaint was filed well within the statutory periods for the relevant causes of action.
place the defendant on notice of the contract claim in such a way that the defendant can reasonably
respond.” Transport Int’l Pool, Inc. v. Ross Stores, Inc., No. Civ.A.06-1812, 2009 WL 1033601, at
*3 (E.D. Pa. Apr. 15, 2009).
According to Defendants, the Amended Complaint fails to properly allege the existence of
an oral agreement of employment because it fails to indicate start and end dates, when Plaintiff was
paid, how much he has been paid, how “gross profits” were calculated, what his job title was, what
he was responsible for, that he performed his duties, the last date he performed his duties, etc.
(Defs.’ Mot. to Dismiss 11-12.) Further, Defendants assert that although Plaintiff claims to have
secured several high level contracts, he failed to say how many he secured, who they were with, and
how value was enhanced. (Id. at 12.)
While the Amended Complaint in this action is indeed sparse, the Court finds that it alleges
enough facts to survive a motion to dismiss. Specifically, the Amended Complaint states as
USBP is in the business of, among other things, selling insurance policies
through large marketing channels.
In or about April of 2005, the Plaintiff and Defendants entered into a verbal
agreement whereby Defendants agreed to pay the Plaintiff one-third of USBP’s
gross profits on distribution channels secured by the Plaintiff.
As a direct result of the Plaintiff’s efforts, USBP secured several high level
contracts, which greatly enhanced its value.
As a direct result of the Plaintiff’s efforts, USBP secured distribution
relationships that totaled more than four million dollars ($4,000,000) in revenue.
In or about March of 2007, the Defendants wrongfully terminated their
agreement with the Plaintiff.
The Defendants’ termination of the agreement was in breach of their duties of
good faith and fair dealing
Despite the Plaintiff’s efforts and success, the Defendants did not compensate
him pursuant to their agreement, in clear breach of the agreement.
Plaintiff generated significant revenue for the Defendants, but was not
compensated pursuant to the agreement, in clear breach of the agreement.
Additionally, the Plaintiff was not compensated for future revenue for
application renewals, as provided in the agreement.
At the time of the Defendants’ breach, the Plaintiff was owed commissions
and/or salary in excess of one hundred and seventy-five thousand dollars
($175,000), plus future profits on insurance contract renewals (the exact amount
of which remains unknown and will require an accounting).
Despite demand, the foregoing amounts have not been paid by the Defendants.
(Am. Compl. ¶¶ 16-26.) Such facts, while minimalist in nature, make adequately clear that Plaintiff
and Defendants orally agreed that Plaintiff would act, on behalf of Defendants, to secure insurance
distribution channels, for which Plaintiff would be compensated one-third of UBS’s gross profits on
those channels of distribution. Plaintiff performed his part of the agreement by securing such
contracts, but Defendants failed to reciprocate by compensating Plaintiff as agreed. Moreover,
despite an open-ended relationship, Defendants wrongfully terminated the agreement. Ultimately,
Plaintiff has suffered damages in the amount of $175,000 plus future profits on insurance contract
These allegations raise the right to relief to the level of “plausibility.” Defendants have not
articulated a convincing reason as to why they need more details in order to respond or why Plaintiff
should be held to a higher pleading standard. Any further details of the contract and the transactions
Notably, Defendants’ Reply Brief concedes – perhaps inadvertently – the existence of some
sort of agreement to pay Plaintiff commissions on the securing of certain contracts. Specifically,
when arguing that Plaintiff is not an “employee” under the Wage Payment and Collection Law,
they contend, “Plaintiff’s logic regarding his theory of the case is completely misplaced. He was
paid as an independent contractor . . . exactly what he was. He has not provided any law that
states if you think you are going to be a partner and then find out later that you really are not than
[sic] you must have been an employee. Plaintiff was provided a 1099 for each of the years he
worked as an independent contractor for USBP for the benefit of Humana.” (Defs.’ Reply Br. 13
at issue are fair ground for discovery. Should such discovery fail to reveal the existence of a viable
breach of contract claim, Defendants may seek summary judgment. At this early stage of the
litigation, however, the Court cannot find such allegations to be insufficient.
The Pennsylvania Wage Payment and Collection Law
The Pennsylvania Wage Payment and Collection Law (“WPCL”) requires employers to pay
a separated employee his or her “wages or compensation earned” at the time of separation no later
than the employer’s next regular payday. 43 PA . CONS. STAT . § 260.5(a). Under the WPCL, an
employer, “[i]ncludes every person, firm, partnership, association, corporation, receiver or other
officer of a court of this Commonwealth and any agent or officer of any of the above-mentioned
classes employing any person in this Commonwealth.” Id. § 260.2a. In addition, “wages” include
“all earnings of an employee, regardless of whether determined on time, task, piece, commission or
other method of calculation.” Id. (emphasis added). As explained by the Pennsylvania Supreme
Court, “[t]he Wage Payment and Collection Law provides employees a statutory remedy to recover
wages and other benefits that are contractually due to them.” Oberneder v. Link Computer Corp.,
696 A.2d 148, 150 (Pa. 1997) (emphasis added). Accordingly, it requires a contract between
employee and employer that sets forth their agreement on wages to be paid. Mavrinac v. Emergency
Med. Ass’n of Pittsburgh, No. Civ.A.04-1880, 2005 WL 2304995, at *8 (W.D. Pa. Sept. 21, 2005).
In addition, the WPCL applies only to “back wages already earned” and not lost future earnings.
Barsky v. Beasley Mezzanine Holdings, LLC, No. Civ.A.04-1303, 2004 WL 1921156, at *2 (E.D.
Pa. Aug. 30, 2004).
The Amended Complaint, in this case, incorporates the previously mentioned operative facts
into the WPCL claim and, in addition, alleges as follows:
At all times relevant herein, Plaintiff was an employee of USBP.
At all times relevant herein, USBP was an “employer” as that term is defined in
43 P.S. § 260.2a.
The monies owed to Plaintiff were and are compensation due to Plaintiff by
reason of his employment.
The monies owed Plaintiff are “wages” as that term is defined in 43 P.S. §
260.2a. in that they are earnings of an employee determined on time, task, piece,
commission or other method of calculation or were fringe benefits or wage
supplements payable by USBP.
Defendants’ willful and deliberate failure to pay Plaintiff the aforesaid wages is
a violation of the Pennsylvania Wage Payment and Collection Law.
Because Defendants’ failure to pay Plaintiff was in bad faith, Plaintiff is also
entitled to claim a percentage of the total monies due to him, or the prescribed
statutory amount (whichever is greater) as liquidated damages at the rate set
forth in the Pennsylvania Wage Payment and Collection Law.
Further, Defendants are responsible for all attorneys’ fees expended by Plaintiff
in his efforts to recover the monies.
(Am. Compl. ¶¶ 36-42.)
As set forth above, Plaintiff has adequately pled the existence of a contract for
compensation, which satisfies a mandatory prerequisite to recovery under the WPCL. While his
breach of contract claim relies on an independent contractor theory, his WPCL claim alleges, in the
alternative, that he was an actual employee of Defendants and was not paid his contractuallypromised commissions. Such alternative pleading is entirely proper regardless of consistency. See
Schirmer v. Principal Life Ins. Co., No. Civ.A.08-2406, 2008 WL 4787568, at *5 (E.D. Pa. Oct. 29,
2008). Although Defendants deny the existence of such an agreement and deny that USBP was an
“employer,” such denials simply create factual disputes that are not properly resolved at the Rule
12(b)(6) stage. Defendant has come forward with no jurisprudence indicating that, as a matter of
law, it could not be liable under this set of facts. The Court thus denies Defendants’ Motion to
Dismiss this claim.9
MOTION TO DISMISS FOR FORUM NON CONVENIENS
In the final portion of their Rule 12 Motion, Defendants seek dismissal of the case for forum
non conveniens. Upon consideration of the parties’ arguments, the Court finds such dismissal
The United States Supreme Court has indicated that although “a plaintiff’s choice of forum
should rarely be disturbed,” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 (1981), a federal court
“may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a
general venue statute.” Windt v. Qwest Commc’ns Int’l, Inc., 529 F.3d 183, 189 (3d Cir. 2008)
(quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507 (1947)), cert. denied, 129 S. Ct. 127 (2009).
Thus, “[w]hen an alternative forum has jurisdiction to hear the case, and when trial in the plaintiff’s
chosen forum would ‘establish . . . oppressiveness and vexation to a defendant . . . out of all
proportion to plaintiff's convenience,’ or when the ‘chosen forum [is] inappropriate because of
considerations affecting the court’s own administrative and legal problems,’ the court may, in the
exercise of its sound discretion, dismiss the case. Id. (quoting Koster v. (Am.) Lumbermens Mut.
Cas. Co., 330 U.S. 518, 524 (1947)); see also Delta Air Lines, Inc. v. Chimet, S.p.A., 619 F.3d 288,
Defendants offer no clear argument for dismissal of the accounting cause of action and the
Court finds that it withstands the Motion to Dismiss. The right to demand an accounting at law
derives from Pa. R. Civ. P. 1021(a). See Buczek v. First Nat’l Bank of Mifflintown, 531 A.2d
1122, 1123-24 (Pa. Super. Ct. 1987). An actionable claim for an accounting at law is necessarily
incidental to a breach of contract claim where the failure of the breaching party to account leaves
the injured party unable to calculate the money owed under the contract. McGough v.
Broadwing Commc’ns, Inc., 177 F. Supp. 2d 289, 301-02 (D.N.J. 2001) (applying Pennsylvania
law). As the breach of contract claim survives, in this case, the cause of action for accounting
survives as well.
294-95 (3d Cir. 2010).
In applying the doctrine of forum non conveniens, courts first examine the existence and
adequacy of an alternative forum for the litigation. Eurofins Pharma US Holdings v. BioAlliance
Pharma SA, 623 F.3d 147, 160 (3d Cir. 2010). If such an adequate alternative forum exists, the
court must consider the appropriate amount of deference to be given to the plaintiff’s choice of
forum. Id. Finally, the district court must balance a series of public and private interest factors to
determine whether trial in the chosen forum would result in oppression or vexation to the defendant,
which is out of proportion to the plaintiff’s convenience. Id. The private interest factors affecting
the convenience of the litigants include:
the relative ease of access to sources of proof; availability of compulsory process for
attendance of unwilling, and the cost of obtaining attendance of willing, witnesses;
possibility of view of premises, if view would be appropriate to the action; and all other
practical problems that make trial of a case easy, expeditious and inexpensive.
Piper Aircraft, 454 U.S. at 241 n.6 (quotation omitted); see also Delta Air Lines, 619 F.3d at 296.
The public interest factors affecting the convenience of the forum include:
the administrative difficulties flowing from court congestion; the “local interest in
having localized controversies decided at home”; the interest in having the trial of a
diversity case in a forum that is at home with the law that must govern the action; the
avoidance of unnecessary problems in conflict of laws, or in the application of foreign
law; and the unfairness of burdening citizens in an unrelated forum with jury duty.
Id. (quotation omitted); see also Delta Air, 619 F.3d at 296. A defendant seeking transfer or
dismissal on forum non conveniens grounds must show that a balancing of the public and private
factors “tips decidedly in favor of trial in the foreign forum.” Windt, 529 F.3d at 192 (quotation
In the case at bar, the parties concur that an adequate, alternative forum exists in New Jersey,
but differ on whether the other forum non conveniens factors advocate dismissal of this action.
Turning to the second factor — the amount of deference accorded to Plaintiff’s choice of forum —
it remains well-established that “a strong presumption of convenience exists in favor of a domestic
plaintiff’s chosen forum.” Id. at 190. Beyond reiterating the personal jurisdiction and venue
arguments already rejected by this Court, however, Defendants provide no basis for overcoming this
presumption. Moreover, they fail to recognize that the principle of forum non conveniens starts
with the understanding that jurisdiction and venue are proper, but the chosen forum is inconvenient
and/or oppressive to defendant. Given no reason to disturb Plaintiff’s selected forum, the Court
grants substantial deference to that selection.
With respect to the private and public interest factors, Defendants contend that:
The public and private interests in this case strongly favor using New Jersey as the
appropriate forum. As stated above, Defendants live in New Jersey, Plaintiff has met
the Defendants solely in New Jersey, and the controversy at issue has primarily taken
place in New Jersey. Any contract created in this case should be interpreted in
accordance with New Jersey law. To the Defendant’s knowledge, all relevant non-party
witnesses to this action reside in New Jersey. All ease of access factors favor New
Jersey. The public and private interest factors strongly weigh in favor of New Jersey,
and to hold trial in the Eastern District of Pennsylvania would result in oppression or
vexation to the Defendants out of all proportion to the plaintiff’s convenience.
(Defs.’ Mot. to Dismiss 16.)
The Court, however, finds this argument both factually unsupported and legally
unconvincing. The Eastern District of Pennsylvania and the District of New Jersey are separated by
nothing more than a bridge over the Delaware River. Accordingly, private interest considerations
such as ease of access to sources, compulsory process for attendance of unwilling witnesses, cost of
obtaining willing witnesses, and other practical problems do not weigh heavily into the analysis.
Indeed, taking as true the allegations of the Amended Complaint, Defendants repeatedly attended
meetings at the Pyramid Club in Philadelphia, thus undermining any claim of inconvenience
associated with litigation in Philadelphia. As to the public interest factors, the Court cannot find,
absent further factual development, any particular grounds for the application of either Pennsylvania
or New Jersey state law. Moreover, Defendants identify no administrative difficulties or unfairness
issues. Finally, because Plaintiff is a Pennsylvania resident, this forum necessarily maintains an
interest in adjudicating this dispute. In short, none of the aforementioned factors favor disruption of
Plaintiff’s choice of forum. Thus, Defendants’ Motion to Dismiss for forum non conveniens is
In light of the foregoing, the Court can not identify any basis, at this juncture, for
Defendants’ requested Rule 12 relief. First, as to the Motion to Dismiss for lack of personal
jurisdiction, the Amended Complaint, together with Plaintiff’s submitted affidavits, reveal that
Defendants had sufficient minimum contacts such that they could be expected to be haled into Court
into Pennsylvania and that the exercise of personal jurisdiction over Defendants will not violate
traditional notions of fair play and substantial justice. Second, with respect to the Motion to
Dismiss for failure to state a claim upon which relief may be granted, the Amended Complaint —
Defendants seem to confuse dismissal for forum non conveniens and transfer pursuant to 28
U.S.C. § 1404(a), as they request that the Court “transfer this action to New Jersey for forum non
conveniens, 28 U.S.C.A. § 1404.” (Defs.’ Mot. to Dismiss 17.) Forum non conveniens is a
means of dismissal of the case, while § 1404 is a statutory method by which a court may transfer
a case to any other district “where it might have been brought” if this transfer is “for the
convenience of parties and witnesses” and “in the interest of justice.” 28 U.S.C. § 1404(a);
see also Windt v. Qwest Diagnostics, 544 F. Supp. 2d 409, 432 n.32 (D.N.J.) (“Forum non
conveniens and 28 U.S.C. § 1404(a), a change of venue provision, differ in their purposes,
operation, and consequences; though they have common roots in legislation, they are entirely
independent phenomena.”), aff’d, 529 F.3d 183 (3d Cir. 2008), cert. denied, 129 S. Ct. 927
(2009). To the extent Defendants implicitly request a § 1404(a) transfer, the Court finds such
transfer is unwarranted. Neither party offers a proper § 1404 argument and this Court’s own
review of the § 1404(a) factors favors maintaining the action in this forum.
while perhaps narrowly meeting the Twombly/Iqbal standards — raises Plaintiff’s right to relief to
the level of plausibility. Finally, Defendants provide no viable basis on which the case should be
dismissed for forum non conveniens. Accordingly, the Motion is denied in its entirety and
Defendants are directed to file an Answer within twenty days from the date of the accompanying
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