GUTIERREZ v. CERUTTI GROUP et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE NITZA I QUINONES ALEJANDRO ON 12/9/2014. 12/9/2014 ENTERED AND COPIES E-MAILED. (ems)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CERRUTI CORPORATION and
OFFICINE MECCANICHE GIOVANNI
NITZA I. QUINONES ALEJANDRO, J.
DECEMBER 9, 2014
Before this Court is a motion to dismiss Plaintiff's claims against Defendant set forth in
the second amended complaint pursuant to Fed R. Civ. P. 12(b)(2) filed by Defendant Officine
Meccaniche Giovanni Cerutti, SpA ("OMGC") for lack of personal jurisdiction. [ECF 28]. The
underlying matter involves a product liability action filed by Mynor Gutierrez ("Plaintiff'), who
seeks damages for personal injuries suffered when cleaning a printing press allegedly
manufactured and distributed by Defendant OMGC, an Italian corporation, and by Defendant
North American Cerutti Corporation ("NACC"), a Delaware corporation (collectively,
"Defendants"). Plaintiff opposed the motion to dismiss, [ECF 29], Defendants filed reply briefs,
[ECF 32, 33], and OMGC filed a supplemental reply memorandum. [ECF 34].
This matter has been fully briefed and for the reasons stated herein, this Court finds that it
cannot exercise either general or specific jurisdiction over Defendant OMGC since Defendant
OMGC has not formed jurisdictionally relevant, continuous and systematic contacts with this
forum, nor has it purposefully directed its activities in this forum to avail itself of the privilege of
conducting activities here. Therefore, Defendant's motion to dismiss for lack of personal
jurisdiction is granted.
The issue posed in the motion to dismiss is whether this Court has personal jurisdiction
over Defendant OMGC, a foreign corporation. The relevant facts, construed in the light most
favorable to Plaintiff, are as follows:
Plaintiff, a citizen of Pennsylvania, was employed by Wallquest, Inc.,
("Wallquest"), a company that designs and manufactures, inter alia, wallpaper
and decorative wall coverings. 2 Wallquest is located in Wayne, Pennsylvania. 3 To
do his work, Plaintiff used a printing press identified as a Cerutti Model PB330
Gravure Printing Press, Serial No. 1552 (the "Press"). 4 On June 22, 2011, Plaintiff
was cleaning the Press when his left arm became caught in it, causing, inter alia,
severe bums to his arm and post-traumatic stress disorder. 5
Defendant OMGC is a corporation headquartered in Casale Monferrato,
Italy. Defendant NACC is a Delaware corporation with its principal place of
business in New Berlin, Wisconsin. 7 According to Plaintiff, Defendants specialize
in designing, manufacturing, advertising, marketing, distributing, repairing,
supplying, and selling printing presses, including the Gravure Printing Press, and
component parts for various printing applications, such as wallpaper printing. 8
The Press involved in Plaintiffs complaint was manufactured by OMGC
in 1975 and sold to a company called DITZEL in Bammental, Germany. 9 Several
years before Plaintiff was injured, Wallquest purchased the Press from a German
publishing company in Germany and had the Press transported to its facility in
Wayne, Pennsylvania. 10 It is unclear whether DITZEL is the German publishing
company from which Wallquest purchased the Press.
See Pinker v. Roche Holdings Ltd., 292 F.3d 361, 368 (3d Cir. 2002) ("[I]n reviewing a motion to
dismiss under Rule 12(b)(2), we 'must accept all of the plaintiffs allegations as true and construe
disputed facts in favor of the plaintiff."').
2d Am. Comp I. if7.
Id. at if6.
Id. at if8.
Id. at ,11.
Id. at if2; Cerutti Aff. ,,3, 4.
2d Am. Compl. ,3.
Id. at ,9. OMGC admits that it designed and manufactured the Press, but it claims it did not sell or ship
the Press to Wallquest. OMGC Brief2.
Cerutti Aff. ,,14, 15.
VonCzoemig Aff. if,4, 5, 9.
On May 30, 2013, Plaintiff filed a complaint against "Cerutti Group
Officine Meccaniche Giovanni Cerutti SpA" and NACC, asserting claims for
negligence, strict liability, and breach of express and implied warranties. 11
Consistent with a stipulation submitted by the parties and approved by this Court
on January 17, 2014, 12 Plaintiff filed a second amended complaint pursuant to
Federal Rule of Civil Procedure (Rule) 15(c)(l)(C), reflecting a change in the
name but not the identity of OMGC. 13 ' 14 On February 4, 2014, NACC filed an
answer to the second amended complaint. 15 On July 25, 2014, OMGC filed the
instant motion to dismiss pursuant to Rule 12(b)(2) asserting the court's lack of
personal jurisdiction. 16
LEGAL STANDARD OF REVIEW
When deciding a motion to dismiss under Rule 12(b)(2) for lack of personal jurisdiction,
a court must accept all of the plaintiffs allegations as true and construe disputed facts in favor of
the plaintiff. Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324, 331 (3d Cir. 2009); Pinker v.
Roche Holdings Ltd., 292 F.3d 361, 368 (3d Cir. 2002). The burden of demonstrating the facts
that establish personal jurisdiction falls on the plaintiff, Pinker at 368, and "[w]hile the Court can
accept plaintiffs allegation of jurisdiction as true for the purposes of a motion to dismiss, 'once a
defendant has raised a jurisdictional defense, the plaintiff bears the burden to prove, by a
preponderance of the evidence, facts sufficient to establish personal jurisdiction."' Bolus v.
Fleetwood Motor Homes of IN, Inc., 2012 WL 3579609, at *2 (M.D. Pa. Aug. 17, 2012) (quoting
Carteret Sav. Bank, FA. v. Shushan, 954 F.2d 141, 147 (3d Cir. 1992)); Metcalfe, 566 F.3d at
331 (citation omitted)); Simeone v. Bombardier-Rotax GmbH, 360 F.Supp.2d 665, 669 (E.D. Pa.
2005) (citing IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 257 (3d Cir. 1998); Dayhoff Inc. v.
Rule 15(c)(l)(C) permits relation back in circumstances where the change of the name of a party who
has received timely notice of the action will not be prejudiced in defending on the merits.
HJ. Heinz Co., 86 F.3d 1287, 1302 (3d Cir. 1996)). A plaintiff, however, may not rest solely on
the pleadings to satisfy this burden. Simeone, 360 F.Supp.2d at 669; Carteret Sav. Bank, 954
F .2d at 146. A Rule 12(b)(2) motion "requires resolution of factual issues outside the pleadings,
i.e., whether in personam jurisdiction actually lies." Boyd v. Allied Properties, 2011 WL
1465454, at *1 (E.D. Pa. Apr. 18, 2011) (citing Clark v. Matsushita Elec. Indus. Co., Ltd, 811
F.Supp. 1061, 1064 (M.D. Pa. 1993) (quoting Time Share Vacation Club v. Atlantic Resorts,
Ltd, 735 F.2d 61, 66 n. 9 (3d Cir. 1984)).
A district court sitting in diversity may assert personal jurisdiction over a nonresident
defendant to the extent allowed under the laws of the forum state. Metcalfe, 566 F.3d at 331. A
state may authorize its courts to exercise personal jurisdiction over an out-of-state defendant if
the defendant has "certain minimum contacts with [the state] such that the maintenance of the
suit does not offend 'traditional notions of fair play and substantial justice,"' Walden v. Fiore, _
U.S._, 134 S.Ct. 1115, 1121 (2014) (quoting International Shoe Co. v. State of Wash., Office of
Unemployment Compensation and Placement, 326 U.S. 310, 316 (1945)), and its affiliations
with the state are so "continuous and systematic" as to render them essentially at home in the
forum state. Daimler AG v. Bauman,_ U.S._, 134 S.Ct. 746, 754 (2014) (quoting Goodyear
Dunlop Tires Operations, S.A. v. Brown, 564 U.S._, 131 S.Ct. 2846, 2853 (2011) (quotation
marks omitted). Thus, the relationship among the defendant, the forum, and the litigation must be
reviewed. Walden, 134 S.Ct. at 1121; Daimler AG, 134 S.Ct. at 754 (quoting Shaffer v. Heitner,
433 U.S. 186, 197 (1977)).
Generally, to review this relationship requires a two-step inquiry, IMO Indus., 155 F.3d at
258-59; to wit: (1) does the forum state's long-arm statute permit the exercise of personal
jurisdiction over the defendant, see Pennzoil Products Co. v. Colelli & Associates, Inc., 149 F.3d
197, 200 (3d Cir. 1998) (holding that district court may assert personal jurisdiction "over nonresident defendants to the extent permissible under the law of the state where the district court
sits"); and (2) does the exercise of jurisdiction comport with the due process clause of the
Constitution. IMO Indus., 155 F,3d at 259.
Here, Plaintiff filed his complaint in Pennsylvania, a state that permits courts to exercise
personal jurisdiction over a nonresident to the constitutional limits of the due process clause of
the Fourteenth Amendment. 42 Pa. C.S.A. § 5322; 17 Mellon Bank (East) PSFS, Nat. Ass'n v.
Farino, 960 F.2d 1217, 1221 (3d Cir. 1992). Thus, under the due process clause, this Court may
exercise personal jurisdiction over OMGC as long as there are certain minimum contacts
between OMGC and the forum state "such that the maintenance of suit does not offend
traditional notions of fair play and substantial justice." International Shoe Co., 326 U.S. at 316;
see also Remick v. Manfredy, 238 F.3d 248, 255 (3d Cir. 2001). If OMGC "purposefully avails
itself of the privilege of conducting activities within the forum State," Hanson v. Denckla, 357
U.S. 235, 253 (1958), "it has clear notice that it would be subject to suit here, and could act to
alleviate the risk of burdensome litigation by procuring insurance, passing the expected costs on
to customers, or, if the risks are too great, severing its connection with the State." World-Wide
Volkswagen Corporation v. Woodson, 444 U.S. 286, 297 (1980). For the reasons to follow, this
Court finds that OMGC has not purposefully availed itself of the privilege of conducting
(a) General rule. -A tribunal of this Commonwealth may exercise personal jurisdiction over a person ...
who acts directly or by an agent, as to a cause of action or other matter arising from such person:
(1) Transacting any business in this Commonwealth. Without excluding other acts which may
constitute transacting business in this Commonwealth, any of the following shall constitute
transacting business for the purpose of this paragraph:
(i) The 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.
(ii) The 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. C.S.A. §5322.
activities within this forum and, thus, this Court lacks authority to exercise personal jurisdiction
In response to the motion to dismiss, Plaintiff argues that, at this stage of litigation, he
needs only to allege sufficient facts to establish a prima facie case of personal jurisdiction over
OMGC. See Farino, 960 F.2d at 1223 (citing Provident Nat. Bank v. California Fed Sav. &
Loan Ass'n, 819 F.2d 434, 437 (3d Cir. 1987)). Plaintiff correctly notes that where a district
court does not hold an evidentiary hearing (as is the case here), a plaintiff need only present a
prima facie case for the exercise of personal jurisdiction with sworn affidavits or other
competent evidence demonstrating, with reasonable particularity, a sufficient nexus between the
defendant and the forum state. Bolus, 2012 WL 3579609, at *3 (citing Southern Seafood Co. v.
Holt Cargo Systems, Inc., 1997 WL 539763, at *8 (E.D. Pa. Aug. 11, 1997)); Eurofins Pharma
US Holdings v. BioAlliance Pharma SA, 623 F.3d 147, 155 (3d Cir. 2010); Metcalfe, 566 F.3d at
331; Farino, 960 F.2d at 1223; Carteret Sav. Bank, 954 F.2d at 146. To establish the existence of
personal jurisdiction over OMGC, Plaintiff relies on a single affidavit attested to by Mr. Jay
vonCzoernig, Head of Production for Wall quest, which states, in· pertinent part:
Wallquest purchased the Press from a German publishing company several years
before Plaintiffs 2011 injury. Mr. vonCzoernig went to Germany on behalf of
Wallquest to inspect and test run the Press. 18
Once the Press was re-assembled in Wallquest's Wayne, Pennsylvania, facility,
an electric connection problem arose resulting from the different electricity
standards between Germany/Europe and the U.S., 19 requiring Mr. vonCzoernig to
personally communicate with OMGC's sales and service agents located in
Chicago, Illinois, who advised that these concerns would be relayed to OMGC in
Italy. It is attested that OMGC responded via telephone and email regarding a
VonCzoemig Aff. ~7.
Id. at ~9.
solution. 20 (However, Mr. vonCzoemig does not specify whether these responses
originated from OMGC in Italy or from the Chicago sales and service agents).
When a problem arose with the Press's automatic splicer, this concern was
discussed with OMGC's sales and service agents (although not stated, were
purportedly those agents in Chicago) but could not be resolved by phone. Mr.
VonCzoemig stated that OMGC sent a service representative from Italy to
Wayne, Pennsylvania, to troubleshoot the issue, and because the problem could
not be resolved, no billing for the service call was generated and no paperwork
regarding the service trip was found, presumably discarded in the ordinary course
of business. 21
Lastly, Mr. VonCzoemig and other representatives of Wallquest have maintained
a continuous working relationship with OMGC (again, without elaboration as to
whether the working relationship is with OMGC in Italy or the agents in Chicago)
with respect to other OMGC equipment regularly used by Wallquest; e.g., via
regular, direct communication with OMGC about service and purchase of parts
and other components for different presses routinely and regularly used by
As stated, when a motion to dismiss asserts a lack of personal jurisdiction, district courts
must accept plaintiffs facts as true, but are permitted to revisit the issue if it appears that the
facts alleged to support jurisdiction are in dispute. Metcalfe, 566 F.3d at 331. Even construing
the facts attested to in favor of Plaintiff, this Court cannot find that Plaintiff has established, with
reasonable particularity, that OMGC has the requisite "certain minimum contacts" with the
forum state, such that "the maintenance of this lawsuit does not offend the traditional notions of
fair play and substantial justice," to support either specific or general jurisdiction over OMGC.
Further, the relationship alluded to in the affidavit must arise out of the contacts that OMGC
itself creates with the forum state rather than contacts initiated by Plaintiff, Walden, 134 S.Ct. at
1122; Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985), and these contacts attested to
clearly do not.
VonCzoemig Aff. ~~l 0, 11.
Id. at ~~12, 13, 15.
Id. at ~~16, 17.
Guided by Metcalfe, this Court finds that Plaintiff has not made a threshold showing in
support of personal jurisdiction over OMGC. See also Bolus, 2012 WL 3579609, at *10 ("A
prima facie case requires factual allegations that suggest 'with reasonable particularity' the
possible existence of the requisite 'contacts between [the party] and the forum state."'). Mr.
VonCzoemig's affidavit is vague, its factual contentions are not supported by any evidence or
documentation, and lacks reasonable particularity to impute this Court's authority over OMGC.
In its response, Defendant OMGC has offered several affidavits attesting that it never had any
sales or service agent located in Chicago, Illinois,23 has no record which indicates that it assisted
anyone at the Wallquest facility in Wayne, Pennsylvania, regarding the Press, either by telephone
or email,24 and that NACC, located in New Berlin, Wisconsin, is the exclusive sales agent, spare
parts distributor, and authorized provider of technical services for OMGC brand equipment
located in North America. 25 Plaintiff has not directly refuted these attestations.
To further elaborate, the due process clause requires that a foreign defendant have certain
minimum contacts with the forum. Having the requisite contact with the forum state may subject
the defendant to either general jurisdiction or specific jurisdiction. See Helicopteros Nacionales
de Colombia, S.A. v. Hall, 466 U.S. 408, 414-15 (1984). A state may subject a defendant to
general jurisdiction only when the defendant's activities in that state are "continuous and
systematic," Helicopteros, 466 U.S. at 416; IMO Indus., 155 F.3d at 259 n. 2, and only when the
corporation's affiliations with that state are so constant and pervasive "as to render [it]
essentially at home in the forum [s]tate." Daimler AG, 134 S.Ct. at 751 (quoting Goodyear, 131
S.Ct. at 2851). Further, if general jurisdiction exists, the contacts between the defendant and the
forum need not be specifically related to the underlying cause of action in order for an exercise
Cerutti Supp. Deel. 11116-8.
Cappa Aff. 118.
of personal jurisdiction over the defendant to be proper." Simeone, 360 F. Supp. 2d at 673
(quoting Pinker, 292 F.3d at 368 n. l); see also Pennzoil Products Co., Inc., 149 F.3d at 200;
Farino, 960 F.2 at 1221.
The inquiry for specific jurisdiction requires a three-prong test. First, the defendant must
have "purposefully directed [its] activities" at the forum. O'Connor v. Sandy Lane Hotel Co.,
Ltd., 496 F.3d 312, 317 (3d Cir. 2007) (citing Burger King Corp., 471 U.S. at 472 (quotation
marks omitted)). Second, the litigation must "arise out of or relate to" at least one of those
activities. Helicopteros, 466 U.S. at 414; Grimes v. Vita/ink Commcations Corp., 17 F.3d 1553,
1559 (3d Cir. 1994). And third, if the prior two requirements are met, a court must consider
whether the exercise of jurisdiction otherwise "comport[s] with 'fair play and substantial
justice."' Burger King Corp., 471 U.S. at 476, (quoting International Shoe Co., 326 U.S. at 320).
At a minmum, the defendant must have "purposefully avail[ed] itself of the privilege of
conducting activities within the forum." O'Connor, 496 F.3d at 317; Hanson, 357 U.S. at 253.
Physical entrance is not required. See Burger King Corp., 471 U.S. at 476; Grand Entertainment
Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 482 (3d Cir. 1993) ("Mail and telephone
communications sent by the defendant into the forum may count toward the minimum contacts
that support jurisdiction."). What is necessary is the deliberate targeting of the forum; thus, the
"unilateral activity of those who claim some relationship with a nonresident defendant" is
insufficient. See Hanson, 357 U.S. at 253. Further, contacts with a state's citizens that take place
outside the state are not considered as purposeful contacts with the state itself. See Gehling v. St.
George's School of Medicine, Ltd, 773 F.2d 539, 542-43 (3d Cir. 1985).
As stated, this Court may exercise personal jurisdiction over OMGC as long as there are
certain minimum contacts between OMGC and the forum state "such that the maintenance of suit
does not offend traditional notions of fair play and substantial justice." International Shoe Co.,
326 U.S. at 316. OMGC must have "continuous and systematic" contacts with the forum state
regardless of whether those contacts are related to Plaintiffs cause of action, Metcalfe, 556 F.3d
at 334, those contacts must be "extensive and pervasive," Brown & Brown, Inc. v. Cola, 745
F.Supp.2d 588, 604 (E.D. Pa. 2010) (quoting Reliance Steel Products Co. v. Watson, Ess,
Marshall, & Enggas, 675 F.2d 587, 589 (3d Cir. 1982)), and they must arise out of contacts that
the "defendant himself' creates with the forum state. Burger King Corp., 471 U.S. at 475. As
attested to by Mr. vonCzoemig, Wallquest initiated all of the contacts between Wallquest and
Further, Goodyear made clear that only a limited set of affiliations with a forum would
render a defendant amendable to all-purpose jurisdiction. Generally, for a corporation, the
paradigm forum for the exercise of general jurisdiction is one in which the corporation is fairly
regarded "at home." 131 S.Ct. at 2853-2854. That is, for a corporation the place of incorporation
and the principal place of business are the paradigm bases for the exercise of general jurisdiction.
Here, OMGC is incorporated and has its principal place of business in Italy.
Nonetheless, Plaintiff argues that OMGC's combined contacts and "direct, continuous,
and substantial communication" with Pennsylvania,26 is evidenced by OMGC's own declaration,
which indicates that during the period of 2007-2011, OMGC sold certain products to entities
located in Pennsylvania, and that such sales amounted to approximately 1.81% of OMGC's
Pltf's Brief 14.
overall revenue. 27 Plaintiff also argues that OMGC's approximation of its sales, notwithstanding,
is underestimated since it ignores the ongoing customer service and troubleshooting functions
between OMGC and other Pennsylvania companies, additional evidence of OMGC's continuous
and systematic contacts with Pennsylvania. 28 Plaintiff relies on Mr. vonCzoemig's references to
the "continuous working relationship" and "regular, direct communication" between OMGC's
Chicago-based sales and service agents. However, these references do not apply to OMGC of
Italy, a distinct company, nor do they constitute "actual proof' or a sufficient illustration of
"constant and pervasive" contacts initiated by OMGC between OMGC and Pennsylvania. See
Rivera v. Baily's Park Place, Inc., 798 F.Supp.2d 611, 615 (E.D. Pa. July 12, 2011); Time Share
Vacation Club, 735 F.2d at 66 ("Mere affidavits which parrot and do no more than restate
plaintiffs allegations without identification of particular defendants and without factual content
do not end the inquiry."). Therefore, Plaintiffs contentions fail for lack of any factual support or
actual proof, and are deemed mere allegations and/or speculations pied for jurisdiction purposes.
See Time Share Vacation Club, 735 F.2d at 66 n. 9 ("Once the motion is made, plaintiff must
respond with actual proofs, not mere allegations.").
In addition, "the inquiry under Goodyear is not whether a foreign corporation's in-forum
contacts can be said to be in some sense 'continuous and systematic,' it is whether that
corporation's 'affiliations with the State are so "continuous and systematic" as to render [it]
essentially at home in the forum State."' Daimler, 134 S.Ct. at 761 (quoting Goodyear, 131 S.Ct.
at 2851) (emphasis added). Similar to the corporate defendants in Daimler and Helicopteros,
OMGC is not incorporated in Pennsylvania, does not maintain a principal place of business in
Pennsylvania, has not owned real estate or maintained an office or establishment in
Cerutti Aff. ~21.
Pltfs Brief 13-14.
Pennsylvania, and is not registered, licensed, or otherwise authorized to do business in the
Commonwealth of Pennsylvania. 29 These are similar factors considered by the Supreme Court to
decline to find general jurisdiction over the defendant. Daimler, 134 S.Ct. at 761. Likewise, this
Court will decline to exercise general jurisdiction over OMGC since the preponderance of the
evidence does not support a finding that OMGC maintained the required minimum contacts with
the forum state that would make OMGC "at home" in Pennsylvania for purposes of general
jurisdiction. See Daimler AG, 134 S.Ct. at 751 (holding that 2.4% of foreign defendant's sales
occurring in the forum state was insufficient to give rise to general jurisdiction); Helicopteros at
104 S.Ct. at 411; see also Penco Products, Inc. v. WEC Manufacturing, LLC, 974 F.Supp.2d
740, 748 (E.D. Pa. 2013) (2% of annual sales in Pennsylvania was not considered substantial for
purposes of demonstrating sufficient business contacts with the forum); Simplicity, Inc. v. MTS
Products, Inc., 2006 WL 924993, at *4 (E.D. Pa. Apr. 6, 2006) (defendant's sales in
Pennsylvania, totaling less than 5% of the company's total sales, were substantially below the
continuous and systematic contacts requirement); Romann v. Geissenberger Mgf. Corp., 865
F.Supp. 255, 261 (E.D. Pa. 1994) (defendant's sales of2-4% was "hardly reflective of the type of
extensive and pervasive contact required by the in personam jurisdiction standard") (quotations
To reiterate, the Third Circuit employs a three-part analysis to determine specific
jurisdiction consisting of whether: (1) the defendant purposefully directed its activities at
Pennsylvania; (2) the litigation "arises out of or relates to" at least one of the defendant's
activities in Pennsylvania; and (3) the exercise of jurisdiction comports with traditional notions
of fair play and substantial justice. 0 'Connor, 496 F. 3d at 317. In other words, the inquiry is
Cerutti Deel. ~~5-7.
whether OMGC "purposefully availed itself of the privilege of conducting activities within
Pennsylvania by deliberately targeting the forum by its conduct and connections so as to
reasonably anticipate being haled into court." World-Wide Volkswagen Corp., 444 U.S. 297.
Plaintiff claims that the single act of OMGC sending a representative from Italy to
Pennsylvania to address the automatic splicer problem and the series of acts whereby Wallquest
representatives maintained a "continuous working relationship" and direct communication with
respect to other equipment used by Wallquest, constitute "deliberate targeting" of the forum state
by OMGC for purposes of establishing specific jurisdiction. Plaintiff further argues that these
acts comport with Pennsylvania's long-arm statute. See 42 Pa. C.S. §5322(a)(i), (ii).
In response, NACC affirmed, through its Vice President of Operations and the Executive
Vice President and Chief Operating Officer, that Vincenzo Pagano, an employee ofNACC, was
the individual who went to Wallquest's facility in early 2000. 30 At the time of his visit, Mr.
Pagano was not employed by OMGC nor has he ever been employed by OMGC at any point
after the visit, a fact confirmed by OMGC. 31 As stated, Wallquest has no record, nor does
OMGC, indicating that OMGC assisted anyone at Wallquest with the Press either personally, by
telephone, or by email. 32
In this case, the event that gives rise to Plaintiffs cause of action, if proven, is the alleged
defective Press, a product which was undisputedly manufactured in Italy. While Plaintiff would
like this Court to consider the referenced alleged contacts OMGC had with Wallquest, albeit
vaguely described and strongly disputed, made to address the concerns with the Press, as
evidence of sufficient contacts to exercise personal jurisdiction, Plaintiff has failed in his efforts.
These contacts, as alleged by Plaintiff, are unilateral activities initiated by Wallquest, and are
°Cappa Aff. ,,5, 6; Pessarelli Aff. ,,5, 6.
Cerutti Supp. Deel. ,5.
insufficient to establish that OMGC purposefully availed itself of the privilege of conducting
activities within Pennsylvania or that it purposefully directed its activities at Pennsylvania. See
Walden, 134 S.Ct. at 1122; Helicopteros, 466 U.S. at 414; Grimes, 17 F.3d at 1559. Under these
assertions, Plaintiff has failed to present a prima facie case to establish that personal jurisdiction
exists over OMGC. In addition, since Plaintiff has failed to meet the first and second prongs in
the specific jurisdiction inquiry, particularly since the asserted underlying claim does not arise
out of OMGC's contacts with Pennsylvania, this Court need not consider whether the exercise of
jurisdiction "comports with fair play and substantial justice." Burger King Corp., 471 U.S. at
476, (quoting International Shoe Co., 326 U.S. at 320).
Accordingly, construing as true the allegations and disputed facts relied on in favor of
Plaintiff, this Court finds that Plaintiff has failed to establish a prima facie case to suggest "with
reasonable particularity" a sufficient nexus between OMGC and the forum state, and/or the
requisite minimum contacts between OMGC and Pennsylvania, to establish personal jurisdiction
over OMGC. This Court finds that any additional discovery on this issue will not assist Plaintiff
in discharging his prima facie burden of establishing personal jurisdiction over OMGC.
For the reasons set forth herein, the motion to dismiss the second amended complaint for
lack of personal jurisdiction is granted, and Defendant OMGC only, is dismissed from this
action. An appropriate order follows.
NITZA I. QUINONES ALEJANDRO, U.S.D.C. J.
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