ADMIRAL INSURANCE COMPANY v. STRAUSS et al

Filing 20

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE C. DARNELL JONES, II ON 9/20/2017. 9/20/2017 ENTERED AND COPIES MAILED TO UNREPS, E-MAILED.(kp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ADMIRAL INSURANCE COMPANY
Plaintiff,

:

v.

:

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

Jones, II

:

CIVIL ACTION
NO. 16-6223

:

:

J.

September 20, 2017

MEMORANDUM
I.

Introduction
Plaintiff brings the above-captioned action, seeking a declaration that it is not required to

defend or indemnify Defendants against the underlying wrongful death suit. 1 Plaintiff amended
its original Complaint and Defendants now move to dismiss same for lack of personal
jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). For the reasons set forth below,
Defendant’s Motion shall be granted.
II.

Background
Plaintiff alleges that on February 16, 2015, the Florida Department of Children and

Families (“DCF”), at the direction of The Devereux Foundation, Inc. (“Devereux”), placed
1

Bogle v. Moran et al., No. 05-2015-CA-034552 (Fla. Cir. Ct. filed July 15, 2015).

1

Calvon Asiaya Williams and his identical twin brother C.W., in a foster home in Palm Bay,
Florida. (Am. Compl. Ex. A, ¶ 19.) The foster home was owned by Kevin Moran and Julie
Moran. (Am. Compl. Ex. A, ¶ 19.) The brothers were ultimately placed with foster parents Emily
Strauss (E. Strauss), Robert Strauss (R. Strauss), and Eileen Walker (E. Walker). (Am. Compl.
Ex. A, ¶ 21.) On March 8, 2015, Calvon Asiaya Williams and his brother C.W. were swinging
on a rope that had “a noose-like loop at the end,” outside their home. (Am. Compl. Ex. A, ¶ 27.)
While doing so, Calvon’s neck became entangled in the loop of the rope, thereby causing his
death by asphyxiation. (Am. Compl. Ex. A, ¶¶ 24-26.) The foster parents, due to their
“infirmities,” were unable to help as C.W. attempted to extricate his brother from the rope and
perform CPR on him. (Am. Compl. Ex. A, ¶ 28.)
Sean Bogle, the Personal Representative of the Estate of Calvon Asiaya Williams and the
guardian of the Person and Property of C.W., filed suit in Florida state court against E. Strauss,
R. Strauss, and E. Walker (among other defendants), 2 alleging wrongful death and negligence
against each foster parent (Am. Compl. Ex. A.) After initiation of this action, E. Strauss, R.
Strauss, and E. Walker, requested a defense and indemnity from Admiral Insurance Company
(“Admiral”) against the underlying wrongful death suit, under a policy issued to the “Foster
Parents of the Devereux Foundation.” (Am. Compl. Ex. D, Bates No. 000192; Am. Compl. Ex.
E, Bates No. 000202.) Admiral now seeks a declaratory judgment from this Court, relieving

2

The other named defendants in the Florida suit are Impower, Inc., a Florida not-for-profit
corporation, The Devereux Foundation, Inc., a foreign not-for-profit corporation, Community
Based Care of Brevard, Inc., a Florida not-for-profit corporation, and Florida Department of
Children and Family Services, an agency of the state of Florida. None of these defendants are
named in the present suit.
2

them of the responsibility to defend and indemnify R. Strauss, E. Strauss, and E. Walker. (Am.
Compl. ¶ 1.) 3
III.

Standard of Review
A.

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

Pursuant to Federal Rule of Civil Procedure 12(b)(2), a defendant may move to dismiss a
claim for lack of personal jurisdiction. Once a defendant has raised this jurisdictional defense,
the burden shifts to the plaintiff to present a prima facie case establishing jurisdiction over the
non-resident defendants in the forum. Pinker v. Roche Holdings Ltd., 292 F.3d 361, 368 (3d Cir.
2002); see also Miller Yacht Sales, Inc., v. Smith, 384 F.3d 93, 97 (3d Cir. 2004) (“[W]hen the
court does not hold an evidentiary hearing on the motion to dismiss, the plaintiff need only
establish a prima facie case of personal jurisdiction.”). A plaintiff has the burden to show “with
reasonable particularity” enough contact between the defendant and the forum to support the
exercise of personal jurisdiction by the forum state. Mellon Bank v. Farino, 960 F.2d 1217, 1223
(3d Cir. 1992); see also Action Mfg. Co. v. Simon Wrecking Co., 375 F. Supp. 2d 411, 418 (E.D.
Pa. 2005) (“In order to establish a prima facie case, the plaintiff must present specific facts that
would allow the court to exercise jurisdiction over the defendant.”).
In determining the existence of personal jurisdiction, courts “must accept all of the
plaintiff’s allegations as true and construe disputed facts in favor of the plaintiff.” Pinker, 292
F.3d at 368. Once the plaintiffs’ “allegations are contradicted by an opposing affidavit . . . [they]
must present similar evidence in support of personal jurisdiction.” In re Chocolate Confectionary
Antitrust Litig., 602 F. Supp. 2d 538, 556 (M.D. Pa. 2009). To counter opposing affidavits,
“[p]laintiffs may not repose upon their pleadings in this manner. Rather, they must counter

3

Emily Strauss passed away on January 13, 2017. (Defs.’ Mot. Dismiss, 3.)
3

defendants’ affidavits with contrary evidence in support of purposeful availment jurisdiction.”
Id. at 559. To that end, “[t]he plaintiff must respond to the defendant’s motion with “actual
proofs”; “affidavits which parrot and do no more than restate [the] plaintiff's allegations . . . do
not end the inquiry.” Lionti v. Dipna, Inc., Civ. No. 17-1678, 2017 U.S. Dist. LEXIS 98956, at
*3-4 (E.D. Pa. June 27, 2017) (quoting Time Share Vacation Club v. Atl. Resorts, Ltd., 735 F.2d
61, 66, n.9 (3d Cir. 1984); see also Lehigh Gas Wholesale, LLC v. LAP Petro., LLC, Civ. No. 145536, 2015 U.S. Dist. LEXIS 36569, at *5 (E.D. Pa. Mar. 23, 2015) (“Plaintiff carries the burden
to prove personal jurisdiction using ‘affidavits or other competent evidence.’”) (quoting Metcalfe
v. Renaissance Marine, Inc., 566 F.3d 324, 330 (3d Cir. 2009)); In re Chocolate Confectionary,
602 F. Supp. 2d at 556-57 (a plaintiff must present contrary evidence in the form of “actual
proofs[.]”).
Personal jurisdiction may be general or specific. To establish personal jurisdiction over a
defendant, a court must first apply the relevant state long-arm statute to determine if it may
exercise personal jurisdiction; then, the court must determine if that jurisdiction violates the Due
Process Clause of the Constitution. IMO Indus. v. Kiekert AG, 155 F.3d 254, 258-59 (3d Cir.
1998). Pennsylvania’s long-arm statute provides that a court may exercise personal jurisdiction
over a non-resident “to the fullest extent allowed under the Constitution of the United States and
may be based on the most minimum contact with this Commonwealth allowed under the
Constitution of the United States.” 42 Pa. Cons. Stat. § 5322(b) (2017). The Due Process Clause
of the 14th Amendment requires a court to ask, “whether ‘the quality and nature of the
defendant’s activity is such that it is reasonable and fair to require [that it] conduct [its] defense
in that state.’” Time Share, 735 F.2d at 63 (internal citations omitted) (emphasis in original).

4

General personal jurisdiction exists when a foreign party maintains “continuous and
systematic” contacts with a state and may be sued in that state on any claim, whereas specific
personal jurisdiction over a defendant exists when a plaintiff’s suit is related to or arises out of a
defendant’s contacts with the state. Reassure Am. Life Ins. Co. v. Midwest Res., Ltd., 721 F.
Supp. 2d 346, 353 (E.D. Pa. 2010) (internal citations omitted). To establish specific personal
jurisdiction, a plaintiff must show the defendant has “‘minimum contacts’ with the forum.” IMO,
155 F. 3d at 259 (internal citations omitted). To fulfill this standard, “the defendant must have
purposefully directed [its] activities at the forum.” Reassure, 721 F. Supp. 2d at 353 (internal
citations omitted). This standard provides that a defendant will not be subject to a suit resulting
from “‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts . . . or . . . the ‘unilateral activity of another
party’.” Id. (internal citations omitted). However, personal jurisdiction cannot be avoided simply
because “the defendant did not physically enter the forum State.” Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 476 (1985).
Once a court finds that a defendant had established minimum contacts with a forum, it
must determine “whether the assertion of personal jurisdiction would comport with ‘fair play and
substantial justice.’” Burger King, 471 U.S. at 476 (quoting Int’l Shoe Co. v. Wash., 326 U.S.
310, 320 (1945)). To contradict this finding, a defendant must demonstrate that exercising
jurisdiction would be “unreasonable” when weighing certain factors. 4 Reassure, 721 F. Supp. 2d
at 356 (quoting Burger King, 471 U.S. at 476-77).

4

These factors are: “‘the burden on the defendant,’ ‘the forum State's interest in adjudicating the
dispute,’ ‘the plaintiff's interest in obtaining convenient and effective relief,’ ‘the interstate
judicial system’s interest in obtaining the most efficient resolution of controversies,’ and the
‘shared interest of the several States in furthering fundamental substantive social policies.’”
Reassure, 721 F. Supp. 2d at 356 (citations omitted).
5

IV.

Discussion
A.

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

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

6

1.

Plaintiff Fails to Prove Defendants Purposely Availed
Themselves of the Forum

Admiral fails to show Defendants purposely availed themselves of the forum for several
reasons: it does not establish the existence and location of the named insured (“Foster Parents of
the Devereux Foundation”); it does not show Defendants initiated the insurance contract under
which they filed a claim for a defense and indemnity; and, it does not show Defendants
otherwise performed actions establishing minimum contacts in Pennsylvania.
Admiral’s Amended Complaint alleges that personal jurisdiction over each defendant (R.
Strauss, E. Strauss, and E. Walker) is appropriate because they requested a defense and
indemnity under policies that were issued to the named insured, “The Foster Parents of the
Devereux Foundation.” 5 (Am. Compl. ¶ 8.) The Amended Complaint names the “Foster Parents
of the Devereux Foundation” as an interested but not necessary party in the litigation, and alleges
said entity is a citizen of Pennsylvania with a principal place of business at 2012 Renaissance
Blvd., King of Prussia, Pennsylvania. (Am. Compl. ¶ 7.)
In its Brief in Opposition to the instant Motion, Plaintiff similarly claims R. Strauss and
E. Walker have minimum contacts with Pennsylvania because they “initiated a contractual
relationship . . . when they sought defense and indemnity for the lawsuit.” (Pl.’s Br. 12.) They
note, “there is no dispute that the policies were issued to a Pennsylvania entity . . . the ‘Foster

5

Plaintiff’s submissions include several different spellings of the name “Devereux,” including
“Deveraux” (Am. Compl. ¶¶ 7, 10, 20) and “Devereau” (Am. Compl., Ex. B, Bates No. 000104).
The proper spelling as indicated in the declaration of Stephen B. Nolan, the Senior Vice
President, General Counsel, and Secretary to the Devereux Foundation, is, “the Devereux
Foundation d/b/a Devereux Advanced Behavioral Health.” (Defs.’ Mot. Dismiss, Ex. B, Nolan
Decl. ¶¶ 1-2.)
7

Parents’ of the ‘Devereux Foundation’”; 6 and the insurance contracts listed the insured’s address
as within Pennsylvania. (Pl.’s Br. 11.) Further, Plaintiff states that “it was [their] understanding
that the insured was located in Pennsylvania,” as reflected on the Policies’ Declarations Pages. 7
(Pl.’s Br. 11) (emphasis added). Lastly, based on Plaintiff’s aforementioned “understanding,” it
believed the Policies would be subject to and controlled by Pennsylvania law. (Pl.’s Br. 12.)
Thus, because Defendants “deliberately and intentionally initiated” an ongoing contractual
relationship in Pennsylvania, Plaintiff concludes they purposely directed their activities to
Pennsylvania. (Pl.’s Br. 12-13.) Therefore, it is Admiral’s position that they filed the instant
lawsuit in response to Defendants’ request for coverage “under Pennsylvania based Policies.”
(Pl.’s Br. 13.)
a.

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

The named insured’s Pennsylvania residence is the keystone of Plaintiff’s argument.
Plaintiff argues that because the purported domicile of “Foster Parents of the Devereux
Foundation” is Pennsylvania, Defendants’ request for coverage under the policies issued to this
named insured establishes personal jurisdiction over Defendants in Pennsylvania. (Am. Compl. ¶
8.)
Despite Plaintiff’s repeated allegations that it issued a policy to a Pennsylvania based
entity, 8 Plaintiff has not shown through affidavit or other sworn evidence that the named insured
is a Pennsylvania entity, or exists within the state. (Pl.’s Br. 2-3, 7, 11, 16.) Contrary to
6

“‘Foster Parents’ of the ‘Devereux Foundation’” is a different construction of the named
insured originally used by Plaintiff. In its Amended Complaint, Plaintiff refers to the named
insured “Foster Parents of the Devereux Foundation” as one named entity.
7
See, Declarations Pages, Am. Compl. Ex. B, Bates No. 000032; Am. Compl. Ex. C, Bates No.
000112.
8
See, Pl.’s Br. 2-3, 7, 11, 16.
8

Plaintiff’s repeated statements, Defendants sharply refute the location and nature of this entity.
In the Nolan Declaration, 9 Mr. Nolan attests that after conducting research, he found no entity
named the “Foster Parents of the Devereux Foundation” that is affiliated with Devereux under
the laws of Pennsylvania. (Defs.’ Mot. Dismiss Ex. B, Nolan Decl. ¶ 4.) He concludes that, “the
‘Foster Parents of the Devereux Foundation’ is not an entity known to, affiliated with, or
sanctioned by Devereux.” (Defs.’ Mot. Dismiss Ex. B, Nolan Decl. ¶ 5.)
In response to this Declaration, Plaintiff asserts numerous times that the policies were issued
to a Pennsylvania entity, 10 and changed the nomenclature of the named insured from the “Foster
Parents of the Devereux Foundation,” to “the ‘Foster Parents’ of the ‘Devereux Foundation.’”
(Pl.’s Br. 11). As recognized in Time Share, “allegations . . . without factual content will not end
the inquiry” into personal jurisdiction. Thus, Plaintiff’s statements that this entity exists in
Pennsylvania, without any other proof, will not support a finding of personal jurisdiction. As
stated above, in deciding a 12(b)(2) motion, this Court must construe Plaintiff’s facts as true.
However, courts are free to revisit facts alleged in support of jurisdiction if these facts are
disputed. Aetna, 129 F. Supp. 3d at 180. The above assertions regarding the location and nature
of the “Foster Parents of the Devereux Foundation” are clearly disputed by Defendants and thus
are eligible to be reevaluated by the court.
Moreover, based on the standard for a 12(b)(2) motion as set forth above, Plaintiff cannot
“repose on their pleadings” to survive this motion. In re Chocolate Confectionary, 602 F. Supp.
2d at 538. Instead, when a defendant raises a jurisdictional defense, a plaintiff must counter
opposing affidavits with similar proof in the form of “sworn affidavits or other competent

9

Stephen Nolan, having served as Senior Vice President, General Counsel, and Secretary to
Devereux, makes this declaration in his capacity as Secretary to the corporation.
10
See supra note 7.
9

evidence.” Metcalfe, 566 F.3d at 330. Plaintiff herein has not done this. The affidavit Plaintiff
produces in response to Defendants’ Motion states that it was “Admiral’s understanding” that the
named insured was located in Pennsylvania. (Pl.’s Br. Ex. 1 Schiavo Aff. ¶ 5.) Plaintiff repeats
its assertions that the policies were issued to a Pennsylvania entity, and uses this averment to
support a finding of personal jurisdiction. (Pl.’s Br. ¶¶ 3-5.) Admiral also contends that because
the address of the named insured appears on the Declarations Pages of the Policies, the entity
must necessarily exist at that location. 11 (Pl.’s Br., Ex. A, Bates No. 000032; Pl.’s Br., Ex. B,
Bates No. 000112.) These assertions do not constitute facts or evidence to establish the
Pennsylvania location of the named insured. Black’s Law Dictionary defines a “fact” as
“something that actually exists; an aspect of reality” or, “an actual or alleged event or
circumstance.” BLACK’S LAW DICTIONARY (10th ed. 2014). Admiral’s “understanding” that an
entity exists in a given location is not a fact, nor “competent evidence,” that it truly exists in a
particular location, but merely a belief. Further, the listed address on the policy does not provide
additional proof that an entity capable of being sued exists at the given address. Admiral’s
affidavit does not provide any factual basis for inferring the existence or location of the “Foster
Parents of the Devereux Foundation.”
The lack of evidence proving the existence and location of the “Foster Parents of the
Devereux Foundation” in Pennsylvania undermines Plaintiff’s argument that Defendants, by
requesting indemnity and defense under the policies, have established minimum contacts with
the forum.

11

There are two relevant Policies in this dispute. Policy #1, EO000006383-08, was issued from
04/01/2014 to 04/01/2015 (Am. Compl. Ex. A). Policy #2 EO000006383-10, was issued from
04/01/2016 to 07/01/2017 (Am. Compl. Ex. B).
10

i.

Plaintiff Does Not Prove Defendants’ Initiated a Contractual
Relationship in the Forum

Putting aside the issue of whether the “Foster Parents of the Devereux Foundation” is a
real entity that can support jurisdiction in Pennsylvania, it is still unclear whether R. Strauss and
E. Walker initiated a relationship with this entity. Therefore, whether said Defendants
purposefully availed themselves of the forum is similarly unclear and Admiral’s argument that
they did so necessarily fails.
Plaintiff contends specific personal jurisdiction exists in this case because “the Policies
were issued to a Pennsylvania entity” and Plaintiff’s “R. Strauss and E. Walker have purposely
directed their activities to Pennsylvania” by seeking coverage under the Policies. (Pl.’s Br. 11.)
In cases “where a[n] out-of-state resident contracts with a forum resident, whether the out-ofstate resident initiated the relationship is crucial.” Penn Mut. Life Ins. Co. v. BNC Nat’l Bank,
Civ. No. 10-00625, 2010 U.S. Dist. LEXIS 91362, at *13 (E.D. Pa. Sep. 2, 2010). When a
plaintiff’s suit “arises out of a contract between the parties, the courts in this district have held
that the defendant’s direction of ‘at least five letters . . . and one phone call’ into Philadelphia to
negotiate the contract were sufficient to give rise to jurisdiction over the defendant.” Reassure,
721 F. Supp. 2d at 356 (internal citations omitted). However, “minimal communication between
the defendant and the plaintiff in the forum state, without more, will not subject the defendant to
the jurisdiction of that state’s court system.” IMO, 155 F.3d at 268 n.3.
Admiral relies upon Penn Mutual to support their argument that Defendants purposefully
directed their activities to Pennsylvania. However, the scenario involved therein is clearly
distinguishable from that which is presently before this Court. Plaintiff in Penn Mutual filed a
declaratory judgment action against BNC National Bank and two individual defendants: Carnago
and Shutte. Id. at *1-2. Both defendants argued they were not subject to personal jurisdiction as

11

they were non-residents and never entered Pennsylvania for any purpose related to the litigation.
Id. at *8, 11. The court held Shutte was subject to its jurisdiction because he specifically selected
the Pennsylvania insurance company, subsequently became its agent, and he helped send
Carnago’s insurance application to the plaintiff’s Philadelphia office. Id. at *10-11. The court
determined Carnago was subject to its jurisdiction because he and the plaintiff initiated a
contractual relationship with each other, and he made payments to the plaintiff’s Pennsylvania
bank. Id. at *12-13. In reaching this decision, the court stated that when a defendant reaches
“across state lines to enter into a continuing contractual relationship with the resident of another
forum[,] that defendant should reasonably anticipate being haled into court there.” Id. at *14-15.
Similar to the defendants in Penn, Admiral argues R. Strauss and E. Walker initiated a
contractual relationship when they sought continuing coverage under the Policies, and thus
purposefully directed their activities to Pennsylvania. 12 (Pl.’s Br. 12). Specifically, Plaintiff
alleges that Defendants “directly and actively solicited an ongoing relationship” with the
Pennsylvania based policies, through telephone and electronic communications with Admiral.
(Pl.’s Br. 4, 12.)
However, Plaintiff does not show “with reasonable particularity,” as in Mellon Bank, that
Defendants initiated this contract and thus purposefully availed themselves of the forum.
Admiral does not allege facts indicating how R. Strauss and E. Walker became insureds under
these policies; whether Defendants were original, negotiating parties who initiated the insurance
contract, or if they were granted coverage later under the Policies through their positions as
foster parents. The record contains evidence that Defendants had communications with Admiral

12

If true, this would fulfill the first prong of the minimum contacts analysis.
12

regarding their requests for coverage. 13 (Defs.’ Reply Br. 7.) However, unlike the defendants in
Penn, there are no allegations that Defendants herein specifically selected Admiral (for insurance
coverage), established an agency relationship with Admiral, or made premium payments to
Pennsylvania or Admiral. 14 It is unclear whether the telephone and email communications from
Defendants to Admiral represent the initiation of a contract, or merely a request for contractual
performance under the contract. However, it is clear that R. Strauss and E. Walker’s contacts
with the forum are not coextensive with the defendants in Penn, nor are the facts of that case
analogous to the present situation. As such, Plaintiff has not fulfilled its burden of showing
Defendants actively reached into the forum to initiate this relationship.
ii.

Defendants’ Other Contacts With The Forum Do Not
Rise to the Level of Minimum Contacts

Outside of the question of contract initiation, Defendants’ other actions do not reach the
level required to establish minimum contacts with the forum. 15 Again, Plaintiff must provide
evidence that Defendants committed “direct actions” that purposefully availed themselves of the
forum, as demonstrated in Time Share. The ‘unilateral activity of another party’ is not sufficient
to subject non-resident defendants to suit. Reassure, 721 F. Supp. 2d at 354 (quoting Burger
King, 471 U.S. at 475).
The only act any Defendant potentially engaged in, was the request to Admiral for
coverage. However, Plaintiff does not prove that either Defendant in this litigation, R. Strauss or
E. Walker, personally had direct contact with Admiral, or Pennsylvania, regarding coverage. E.
13

As will be discussed further below, E. Strauss (now deceased) emailed Admiral for coverage
under the Policies. (Defs.’ Reply Br. 7.)
14
Rather, Defendants contend Devereux, a non-insured, paid the premiums. (Defs.’ Reply Br.
8.)
15
Defendants are Florida citizens, they have never entered Pennsylvania for any reason, nor do
they own any kind of property in Pennsylvania. (Defs.’ Mot. Dismiss, Ex. C, ¶¶ 7, 9; Ex. D, ¶¶ 7,
9) (emphasis added).
13

Strauss, now deceased, allegedly contacted Admiral for coverage on behalf of herself and R.
Strauss. (Am. Compl. ¶ 43; Defs.’ Reply Br. 7.) E. Strauss, it is alleged, also contacted Admiral
for coverage on behalf of E. Walker. (Am. Compl. ¶ 44.) Not only are these facts dissimilar to
Penn Mutual in that a third party performed the contact with the forum, but they show that these
two Defendants performed very little—if any—activity toward or within the forum. The
“unilateral activity” of other parties toward the forum (E. Strauss and Devereux) does not confer
jurisdiction over R. Strauss and E. Walker. As such, Defendants do not have minimum contacts
with the state.
B.

Plaintiff Failed to Prove Pennsylvania Law Controls Interpretation of
the Policies

Plaintiff further maintains that: because the Policies were issued to a Pennsylvania named
insured; 16 Plaintiff understood the insured to be located in Pennsylvania; 17 and, the Policies had
Pennsylvania specific endorsements, said Policies would be subject to and controlled by
Pennsylvania law 18 and it was reasonable for R. Strauss and E. Walker “to anticipate that they
could be ‘haled’ into a Pennsylvania court.” (Pl.’s Br. 5-6, 12-13.) 19 However, Plaintiff’s
argument fails because the Pennsylvania specific endorsement (Service of Suit) clause does not
equate to a “choice of law” or “forum selection” provision for purposes of conferring jurisdiction
over Defendants in this matter. Since the Policies at issue do not contain either a “choice of law”

16

As discussed above, Plaintiff has not established that the “Foster Parents of the Devereux
Foundation” is a Pennsylvania entity.
17
Plaintiff’s “understanding” of the location of an entity is not a fact that the entity exists there.
18
Plaintiff’s “understanding” that Pennsylvania law would control the Policies is not proof that
Pennsylvania law controls the Policies.
19
Plaintiff’s assertion that the Policies contained “Pennsylvania specific endorsements” is the
only allegation that is not an opinion or a belief, but a fact. As such, this section will focus on
that assertion.
14

or “forum selection” provision, Plaintiff’s reliance on Griffith to show Pennsylvania law controls
the interpretation of the Policies is misplaced.
1.

The Service of Suit Clause Does Not Confer Jurisdiction Over
Defendants and the Contract Does Not Contain Any Other
Choice of Law Provision

Admiral argues that Consolidated Sun Ray, Inc. v. Steel Ins. Co., 190 F. Supp. 171 (E.D.
Pa. 1961), 20 provides support for their claim that the inclusion of a service of suit clause
“bolsters the conclusion that the policies should be interpreted under Pennsylvania law.” (Pl.’s
Br. 7.) The Consolidated court held that the clause “was designed to assure the insured that it
would not have to travel to the domicile of the defendant to assert its legal rights under the
policy.” 190 F. Supp. at 174. 21
“’The service of suit clause itself speaks only to actions brought by the insured.’” Ace
Capital v. Varadam Found., 392 F. Supp. 2d 671, 675 (D. Del. 2005) (quoting Int’l Ins. Co. v.
McDermott Inc., 956 F.2d 93, 95-96 (5th Cir. 1992)). Therefore, in cases such as the one
presently before this Court, “the Service of Suit provision does not prescribe the forum for the
action.” Ace Capital, 392 F. Supp. 2d at 675. In this case, “the Service of Suit clause simply has
no application.” Id. (quoting Int’l Ins., 956 F.2d at 95-96).

20

The court in Consolidated concluded that jurisdiction over the defendant insurance company
was proper because the language in the service of suit clause indicated that the defendant agreed
to submit to the jurisdiction of any court in the United States.
21
The language of the Service of Suit clause in Consolidated is essentially identical to the
Service of Suit clause in the Policies in this case. See Am. Compl. Ex. B, Bates No. 000045. In
Consolidated, the clause states in part, “[i]t is agreed that in the event of the failure of the
Company hereon to pay any amount claimed to be due hereunder, Company hereon, at the
request of the Insured, will submit to the jurisdiction of any Court of competent jurisdiction
within the United States and will comply with all requirements necessary to give such Court
jurisdiction and all matters arising hereunder shall be determined in accordance with the law and
practice of such Court.” Consolidated, 190 F. Supp. at 173.

15

Because a Service of Suit clause does not prescribe a forum for an action, it does not
constitute a choice of law or forum selection provision. Id. Moreover, when a contract does
contain such language, a choice of law “provision standing alone would be insufficient to confer
jurisdiction.” Burger King, 471 U.S. at 482.
The Pennsylvania specific “Service of Suit” clause Plaintiff relies upon states in part:
SERVICE OF SUIT – PENNSYLVANIA . . . It is agreed that in the event
of the failure of the Company hereon to pay any amount claimed to be due
hereunder, the Company, at the request of the insured . . . will submit to
the jurisdiction of any court of competent jurisdiction within the United
States of America . . . and will comply with all requirements necessary to
give such court jurisdiction . . . Further, pursuant to any statute of any state
. . .the company hereby designates the superintendent, commissioner or
Director of Insurance . . .as its true and lawful attorney upon whom may
be served any lawful process in any action…instituted by or on behalf of
the Insured.
(Am. Compl. Ex. B, Bates No. 000045.)
Consolidated is distinguishable from the facts of this case because Plaintiff is the
insurance company and Defendants are the insureds. As Ace Capital explains, the clause is not
applicable under these circumstances. However, assuming arguendo the clause is applicable,
there is no language therein that confers jurisdiction over Defendants. Plaintiff is the subject of
all the requirements contained in this clause. It is required to submit to the jurisdiction of any
“court of competent jurisdiction” in the United States, and to “comply with all requirements
necessary to give such court jurisdiction.” (Am. Compl. Ex. B, Bates No. 000045.) By signing
and issuing a contract containing this clause, an inference can be made that Plaintiff agreed to
adhere to this provision. Thus, based on the content of the clause and its inapplicability to the
present circumstances, Plaintiff’s argument that it was reasonable for R. Strauss and E. Walker to
anticipate being haled into a Pennsylvania court fails.

16

Viewing the contract as a whole, the Policies are devoid of any other “choice of law” or
“forum selection” provision. Consequently, without language in the contract designating a forum
or a specific state’s laws for contract disputes, Plaintiff’s argument fails to establish that
Pennsylvania law controls interpretation of the Policies.
2.

Plaintiff’s Griffith Analysis is Misplaced

Plaintiff further argues that even without a choice of law provision, Pennsylvania law
should control interpretation of these Policies. Plaintiff uses the Griffith approach 22 to say
Pennsylvania has the most significant relationship with the Policies because they were issued to a
Pennsylvania insured, it was “Admiral’s understanding” the insured was located in Pennsylvania,
and there are Pennsylvania-specific endorsements in the Policies. (Pl.’s Br. 6.)
Although Plaintiff attempts to rely on the foregoing to establish jurisdiction over
Defendants, said reliance does not take into consideration Defendants’ direct actions and whether
they purposefully availed themselves of the forum. IMO explained the minimum contacts
analysis requires a plaintiff to “show that the defendant has purposefully directed its activities
toward the residents of the forum state.” IMO, 155, F.3d at 259. In addition, Reassure
demonstrates a defendant will not be subject to a suit resulting from “‘unilateral activity of
another party.’” Reassure, 721 F. Supp. 2d 353. As previously discussed, Plaintiff has not shown
that Defendants initiated or negotiated a contract in Pennsylvania, that they personally filed a

22

Using the Griffith analysis, “‘the first step in a choice of law analysis under Pennsylvania law
is to determine whether a conflict exists between the laws of the competing states.’” AutoOwners Ins. Co. v. Stevens & Ricci, Inc., 835 F.3d 388, 404 (3d Cir. 2016) (internal citations
omitted). If a court determines there are no relevant differences between the two states’ laws, the
court can “refer to the states' laws interchangeably.” Id. If a court determines there is a conflict, it
must also determine “which state has the greater interest in the application of its law.” Budtel
Assocs., LP v. Cont’l Cas. Co., 915 A.2d 640, 643 (Pa. Super. 2006) (internal citations omitted).
Courts must make “a further determination as to which state had the most significant contacts or
relationships with the insurance contract” in order to weigh these interests. Id.
17

claim with Admiral under these Policies, or that they otherwise purposefully availed themselves
of the forum by requesting indemnity and defense under Policies allegedly controlled by, and
subject to, Pennsylvania law. Accordingly, any argument that the Policies should be subject to
and controlled by Pennsylvania law does not, on its own, confer jurisdiction over Defendants.
C.

Exercising Jurisdiction Over These Defendants Would Not Comport
With Notions of Fair Play and Substantial Justice

The final factor of the minimum contacts analysis provides, “once it has been decided
that a defendant purposefully established minimum contacts within the forum State, these
contacts may be considered in light of other factors to determine whether the assertion of
personal jurisdiction would comport with ‘fair play and substantial justice.’” Reassure, 721 F.
Supp. 2d at 356 (quoting Burger King, 471 U.S. at 477). In making this determination, courts
consider several factors, including: “‘the burden on the defendant,’ ‘the forum State’s interest in
adjudicating the dispute,’ ‘the plaintiff’s interest in obtaining convenient and effective relief,’
‘the interstate judicial system’s interest in obtaining the most efficient resolution of
controversies,’ and the ‘shared interest of the several States in furthering fundamental
substantive social policies.’” Burger King, 471 U.S. at 477. Nonetheless, because Plaintiff has
not fulfilled its burden of demonstrating Defendants’ minimum contacts with the forum, an
analysis of these factors is not required. See IMO, 155 F.3d at 259 (“Although this case raises
some interesting issues regarding the application of the ‘fair play and substantial justice’
standard, we need not reach them since, as we discuss below, [IMO] has not met its burden of
demonstrating [Defendant’s] minimum contacts with the forum.”). However, even assuming
Plaintiff had met its burden of demonstrating minimum contacts, it cannot meet its burden
regarding fair play and substantial justice. First, the burden on Defendants to defend the suit in
Pennsylvania is high, as they do not have minimum contacts with Pennsylvania. Further, they are

18

Florida citizens, they have never entered Pennsylvania for any reason, nor do they own any kind
of property in Pennsylvania. (Defs.’ Mot. Dismiss, Ex. C, ¶¶ 7, 9; Ex. D, ¶¶ 7, 9.) Additionally,
any witnesses Defendants may call will most likely be located in Florida, as this is where
Defendants lived, fostered children, and where the incident giving rise to this suit took place.
Defendants would have to incur the expense of bringing these witnesses to Pennsylvania to
defend this suit. Plaintiff has not otherwise shown that the burden on these Defendants is such
that they could easily travel and defend this suit in Pennsylvania.
Further, Plaintiff argues that because Pennsylvania law controls the Policies’
interpretation, Pennsylvania has an interest in adjudicating the dispute. (Pl.’s Br. 13.) However,
as discussed above, it is not clear that Pennsylvania law controls the interpretation of these
Policies. As such, this argument fails.
Plaintiff’s interest in obtaining convenient and effective relief in Pennsylvania is
undermined by the Service of Suit clause in the Policies. This provision specifically states that in
the event of a lawsuit, Plaintiff “will submit to the jurisdiction of any court of competent
jurisdiction within the United States of America.” (Am. Compl. Ex. B, Bates No. 000045.)
Plaintiff agreed to this clause, consenting to jurisdiction in a myriad of courts. Moreover,
Plaintiff is a Delaware corporation, with a principal place of business in New Jersey. (Am.
Compl. ¶ 2.) For these reasons, Pennsylvania does not offer a decidedly convenient and effective
forum for relief to Plaintiffs.
Lastly, the “interstate judicial system’s interest in obtaining the most efficient resolution
of controversies” and the “shared interest of the several states in furthering fundamental
substantive social policies” would be best served had Admiral simply filed suit in Florida where
it is clear personal jurisdiction does exist over Defendants. The Policies in dispute contain a

19

condition precedent which provides that if Defendants do not maintain a homeowner’s policy in
the amount of $300,000 or higher, coverage will be void for any insured. (Am. Compl. Ex. B,
Bates No. 000108.) 23 Plaintiff alleges that Defendants did not maintain any such policy, thus
their coverage is void under these Policies. If Admiral had chosen to file in a Florida court, this
litigation would be supremely efficient: jurisdiction over Defendants in Florida is clear and their
lack of a homeowners or renters insurance policy to fulfill this condition precedent voids their
coverage. Thus, Admiral’s choice to file in Pennsylvania has significantly encumbered the
resolution of this litigation as well as the underlying litigation brought by Sean Bogle, the
Personal Representative of Calvon Asiaya Williams and C.W.
D.

Plaintiff Has Failed to Make a Prima Facie Showing of Personal
Jurisdiction Over Defendant Sean Bogle in the Commonwealth of
Pennsylvania

Admiral further contends this Court has jurisdiction over Sean Bogle, 24 in his capacity as
Personal Representative of the Estate of Calvon Asiaya Williams and as Plenary Guardian of the
Person and Property of C.W., because he is pursuing a judgment against R. Strauss and E.
Walker, who are seeking coverage from an alleged Pennsylvania citizen (“Foster Parents of the
Devereux Foundation”). (Am. Compl. ¶ 9.) Admiral further argues Bogle has intentionally
directed his actions to Pennsylvania because he has commenced a lawsuit against R. Strauss and
E. Walker, who “initiated a continuing contractual relationship in Pennsylvania,” 25 therefore,

23

The second policy (AI 08 76 02 03) contains a similar condition precedent and states “the
Insured shall obtain and maintain a Homeowners Policy in the amount of $300,000 or higher, or
Renters Insurance Policy in the amount of $100,000 or higher.” (Am. Compl. Ex. C, Bates No.
000188.)
24
Plaintiff has named Sean Bogle is an interested but not necessary party in this litigation. (Am
Compl. ¶ 6.)
25
As previously referenced, R. Strauss and E. Walker allegedly initiated this contractual
relationship when Emily Strauss contacted Admiral on behalf of herself, R. Strauss and E.
Walker, seeking insurance coverage for Bogle’s claims under a pre-existing policy.
20

personal jurisdiction over him is appropriate. (Pl.’s Br. 14.) In that same vein, Admiral
essentially argues that but for these actions, they would not have had to commence suit in this
forum. (Pl.’s Br. 14.)
Plaintiff’s arguments fail because Bogle has not directed any activity toward
Pennsylvania. Despite Admiral’s assertion that by filing a lawsuit against R. Strauss and E.
Walker, Bogle has intentionally directed his actions to Pennsylvania, this does not constitute
sufficient contact with the state to establish personal jurisdiction. As discussed above, the
minimum contacts test requires a plaintiff show that the defendants, through their direct actions,
purposely availed themselves of the forum; unilateral activity by a third party cannot confer
jurisdiction over a non-resident defendant.
As a threshold matter, the incident giving rise to the underlying lawsuit occurred in its
entirety in Florida. Sean Bogle commenced a wrongful death action against—among other
defendants—R. Strauss and E. Walker in Florida state court. (Am. Compl. Ex. A.) In response to
this lawsuit, R. Strauss and E. Walker filed a claim with Admiral, requesting a defense and
indemnity. 26 These actions do not fulfill the purposeful availment standard for minimum
contacts. By initiating a lawsuit in Florida, Bogle has not directed his actions at Pennsylvania.
Similarly, R. Strauss and E. Walker’s actions, however minimally directed toward Pennsylvania,
cannot confer jurisdiction over Bogle. Bogle initiated his claim before R. Strauss and E. Walker
contacted Admiral for a defense and initiated any negligible contact of their own with
Pennsylvania. 27 Thus, it cannot be said that Bogle directed his activities at Pennsylvania, and
consequently, this Court does not have jurisdiction over him.

26
27

See supra notes 13, 25.
See supra notes 13, 25.
21

As Plaintiff has not alleged Bogle committed any other actions toward Pennsylvania or
otherwise, Plaintiff has not fulfilled its burden of demonstrating this Defendant’s minimum
contacts with the forum. Thus, it is not necessary to analyze the “fair play and substantial justice”
factors. IMO, 155 F.3d at 259. Given the factually thin record regarding Bogle, and the
insufficient allegations used to support a finding of jurisdiction, Plaintiff’s argument fails.
IV.

Conclusion

Admiral Insurance Company has failed to prove non-resident Defendants R. Strauss, E.
Walker, and Bogle have sufficient contacts with the forum to establish personal jurisdiction over
them. There are no factual allegations that R. Strauss or E. Walker sought out an insurance
policy, specifically reached out to Admiral Insurance Company, or ever entered Pennsylvania for
any reason. If there is a connection between these Defendants and Pennsylvania, it is indirect at
best. Even assuming the Policies Admiral issued are subject to Pennsylvania law, this does not
increase, strengthen, or otherwise affect R. Strauss and E. Walker’s direct contacts with the state,
which are insufficient to confer personal jurisdiction.
Bogle’s contacts with Pennsylvania are more attenuated than R. Strauss and E. Walker’s.
availment of the forum. While Admiral argues it is through Bogle’s connection with R. Strauss
Admiral does not allege direct conduct by Bogle to demonstrate his allegedly purposeful

and E. Walker that he establishes minimum contacts with Pennsylvania, in no way did Bogle

personally direct any activity toward Pennsylvania. Filing a lawsuit in Florida does not equate to
purposeful availment in Pennsylvania. Admiral’s reliance on Bogle’s contact with R. Strauss and
E. Walker—who allegedly had minimum contacts with Pennsylvania—to establish personal
jurisdiction, is baseless. This argument is particularly unavailing considering Admiral did not
clearly establish personal jurisdiction over R. Strauss and E. Walker in Pennsylvania to begin

22

with. These factors, in conjunction with this Court’s recognition that one purpose of the Due
Process Clause is to prevent a plaintiff from using random, fortuitous, and attenuated contacts
like these to establish personal jurisdiction over non-resident defendants, Defendants’ motion to
dismiss shall be granted.
An appropriate Order follows.

BY THE COURT:

/s/ C. Darnell Jones, II

23

J.