THOMPSON et al v. WYRKS TOOL & MACHINE LTD. et al

Filing 38

ORDER adopting Report and Recommendation re 32 Report and Recommendation; denying 12 Motion to Dismiss and denying 15 Motion to Dismiss. Signed by Judge Terrence F. McVerry on 12/17/2009. (kly)

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

LOUIS D. THOMPSON, et al., Plaintiffs, v. WYRKS TOOL & MACHINE LTD., et al., Defendants.

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Civil Action No. 09-581 Judge McVerry Magistrate Judge Bissoon

MEMORANDUM ORDER On September 4, 2009, this case was referred to United States Magistrate Judge Cathy Bissoon for pretrial proceedings in accordance with the Magistrates Act, 28 U.S.C. §§ 636(b)(l)(A) and (B), and Rules 72.C and 72.D of the Local Rules for Magistrates. On November 13, 2009, the magistrate judge issued a Report (Doc. 32) recommending that Defendant Kitcam Investments, Ltd.'s ("Kitcam's") Motion to Dismiss (Doc. 12) be denied, and that Defendant Wyrks Tool & Machine Ltd.'s Motion to Dismiss (Doc. 15) be denied without prejudice. Service of the Report and Recommendation was made on the parties, and Defendants filed Objections on November 24, 2009. See Docs. 33 & 34. In its Objections, Kitcam alleges that "newly discovered evidence," contained within its own records, establishes that Kitcam's prior sworn statement regarding its shipment of the Saw into Pennsylvania was erroneous. See Kitcam's Objs. (Doc. 33) at 1-2; compare Kitcam's Br. (Doc. 13) at 4 ("Kitcam did sell and ship the [S]aw to [Plaintiff's employer]" in Pennsylvania) with Kitcam's Objs. at 3-4 (now claiming that "the [S]aw remained at Kitcam's facility in

[Canada] until [Plaintiff's employer] or its representative came to Kitcam's facility to pick up and ship the [S]aw to Pennsylvania"). At this stage in the proceedings, Plaintiff is required only to establish a prima facie case of personal jurisdiction. See Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324, 330-31 (3d Cir. 2009) (recognizing same). Given the contradictions in Kitcam's own evidence, Defendants cannot demonstrate their entitlement to dismissal under Federal Rule 12(b). Id. at 330 ("in deciding a motion to dismiss for lack of jurisdiction, a court is required . . . to construe disputed facts in favor of the plaintiff") (citation to quoted source omitted). Should discovery reveal colorable bases for revisiting the jurisdictional issue, the Court will do so as it deems appropriate. See id. at 336 (plaintiff "eventually [must] establish jurisdiction by a preponderance of the evidence," and "it remains within the [court's] province to [later] weigh the evidence in support of jurisdiction and, after doing so, revisit the jurisdictional issue") (citation omitted). Thus, after a de novo review of the pleadings and documents in the case, together with the Report and Recommendation and the Objections thereto, the following Order is entered: AND NOW, on this 17th day of December, 2009, IT IS HEREBY ORDERED that Defendants' Motions to Dismiss (Docs. 12 & 15) are DENIED WITHOUT PREJUDICE. The Report and Recommendation dated November 13, 2009 is adopted as the opinion of the District Court, as supplemented herein.

cc (via email): All Counsel of Record

s/ Terrence F. McVerry Terrence F. McVerry United States District Judge

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