WATSON v. BLESSEY MARINE SERVICES, INC.

Filing 13

MEMORANDUM AND OPINION re 6 MOTION to Dismiss filed by BLESSEY MARINE SERVICES, INC. Signed by Judge Arthur J. Schwab on 11/23/2011. (lmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
BRIAN WATSON,
Plaintiff,

11cv1252
ELECTRONICALLY FILED

v.
BLESSEY MARINE SERVICES, INC.,
Defendant.
MEMORANDUM OPINION
This is an action arising under the Americans with Disabilities Act, 42 U.S.C. § 12101 et
seq. (“ADA”) and the Pennsylvania Human Rights Act, 43 Pa.C.S.A. § 951 et seq. (“PHRA”).
Plaintiff, Brian Watson, alleges Defendant, Blessey Marine Services, Inc., violated the ADA and
PHRA primarily by failing to hire Plaintiff because of his record of medical disability and/or
because Defendant regarded Plaintiff. Plaintiff seeks injunctive and monetary relief.
Defendant filed a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(2) for
lack of personal jurisdiction. Defendant‟s Motion to Dismiss also seeks dismissal under Federal
Rule of Civil Procedure 12(b)(3) claiming the Western District Court of Pennsylvania is not the
proper venue. Defendant suggests, as an alternative to dismissal, that this matter be transferred
to the United States District Court for the Eastern District of Louisiana. Finally, Defendant
asserts that at a minimum, Plaintiff‟s PHRA claim should be dismissed because Defendant lacks
the requisite number of employees to subject it to a PHRA claim.
Plaintiff, countering, argues Defendant possesses the requisite minimum contacts and
suggests this Court‟s exercise of personal jurisdiction would comport with notions of fair play
and substantial justice.

For the reasons that follow, Defendant‟s motion will be denied.

I. BACKGROUND
The following material facts are set forth in Plaintiff's Complaint and are accepted as true
for purposes of this opinion unless otherwise noted.
Plaintiff, a merchant mariner, is a resident of Fayette County, Pennsylvania. Doc. no. 1,
¶ 3. Defendant is an inland tank barge and towing vessel company with offices in Harahan,
Louisiana. Id. at ¶ 4.
In March of 2009, Plaintiff applied for an open riverboat pilot position with Defendant.
Id. at ¶ 31. Defendant interviewed Plaintiff twice on the telephone. Id. at ¶ 32. Defendant “flew
Plaintiff to its headquarters” in Louisiana for an additional interview and testing. Id. at ¶ 33.
The relevant portions of Plaintiff‟s affidavit indicate:
“In early March, 2009, I applied on [Defendant‟s] website for [the] Boat Pilot position.
[Defendant‟s] Port Captain Ted Ewing telephoned me in Pennsylvania twice and interviewed
me. Mr. Ewing told me that his plan was to place me on the M/V Mitch Jones with Pittsburgh as
my hub city.” Doc. no. 9-2 at ¶ 10.
“On March 10, 2009, [Defendant] flew me to their headquarters in Harahan, LA, where I
was interviewed in person and extended a conditional offer of employment. . . . I completed
substantial paperwork at [Defendant‟s] offices, including W-4 forms, direct deposit forms,
insurance forms and others.” Id. at ¶ 11.
“I was then taken to the offices of [Defendant‟s] medical testing agent Dr. Isabelle
Ochsner, M.D. at Pelican State Outpatient Center for medical tests. Id. at ¶ 12 I discussed my
prior operation with Dr. Ochsner and told her that I did not have any medical restrictions and had

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been successfully working as a boat pilot for since my 100% successful surgery. Id. at ¶ 13. Dr.
Ochsner placed me on “Medical Hold,” and told me I needed another medical release from my
neurosurgeon before she would let me work for [Defendant].” Id. at ¶ 14.
“The next morning, [Defendant‟s] Human Resources Manager Reggie Barnes and
another official whose name I cannot recall called me to [Defendant‟s] office. . . . Mr. Barnes
told me [Defendant] was . . . revoking its offer of employment. Id. at ¶ 15.

II. STANDARD OF REVIEW
A.

Personal Jurisdiction

When deciding a Rule 12(b)(2) motion predicated upon a lack of personal jurisdiction, “a
court is required to accept the plaintiff‟s allegations as true, and is to construe disputed facts in
favor of the plaintiff.” Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324, 330 (3d Cir. 2009)
(internal quotes and citation omitted). After a jurisdictional defense is raised, the plaintiff bears
the burden of demonstrating that the defendant‟s affiliating contacts with the forum state are
sufficient to give the court personal jurisdiction. Compagnie des Bauxites de Guinee v. L’Union
Atlantique S.A. D’Assurances, 723 F.2d 357, 362 (3d Cir. 1983). To establish personal
jurisdiction and defeat a Rule 12(b)(2) motion to dismiss, plaintiff must go beyond the pleadings
and make an affirmative proof. See Dayhoff Inc. v. H.J. Heinz Co., 86 F.3d 1287, 1302 (3d Cir.
1996) (plaintiff bears the burden of proving by affidavits or other competent evidence that
jurisdiction is proper).
The Pennsylvania long arm statute permits the courts of Pennsylvania to exercise
personal jurisdiction over nonresident defendants to the constitutional limits of the Due Process
clause of the Fourteenth Amendment. Dollar Sav. Bank v. First Sec. Bank, N.A., 746 F.2d 208,

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211 (3d Cir. 1984). The Due Process clause permits courts to exercise two types of personal
jurisdiction over a defendant – general and specific. See Mellon Bank (East) PSFS, National
Assocation v. Farino, 960 F.2d 1217, 1221 (3d Cir. 1992).
General jurisdiction is the broader of the two types, and is supported where a defendant
has maintained systematic and continuous contacts with the forum state. See Marten v. Godwin,
499 F.3d 290, 296 (3d Cir. 2007). The contacts need not be related to the particular claim
proceeding in court. Metcalfe, 566 F.3d at 334. If a party is subject to the general jurisdiction of
a state, that party can be called to answer any claim against her, regardless of whether the subject
matter of the cause of action has any connection to the forum. Mellon Bank, 960 F.2d at 1221.
Absent “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 Industries, Inc. v. Kiekert AG, 155 F.3d 254, 259 n.2 (3d Cir. 1998).
Conversely, if the cause of action is not related to the defendant‟s contacts with the forum
state – i.e. the plaintiff cannot show specific jurisdiction – the plaintiff must make a stronger
showing that the defendant has maintained “continuous and systematic” forum contacts.
Reliance Steel Products Company v. Watson, Ess, Marshall & Enggas, 675 F.2d 587, 588–89
(3d Cir.1982).
B.

Venue

“Venue” refers to locality, the place where a lawsuit should be heard. The key to venue
is that it “is primarily a matter of choosing a convenient forum.” Leroy v. Great Western United
Corp., 443 U.S. 173, 180 (1979). In most instances, the purpose of statutorily specified venue is
to protect defendant against the risk that a plaintiff will select an unfair or inconvenient place of
trial. Id. at 183-84. The Court of Appeals for the Third Circuit has held that in a motion to

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dismiss for improper venue under Rule 12(b)(3), defendant has the burden of proving improper
venue. Myers v. American Dental Association, 695 F.2d 716 (3d Cir. 1982). Venue must be
properly laid as to each defendant. Eaby v. Richmond, 561 F. Supp. 131, 140 n.2 (E.D. Pa.
1983).
The question of personal jurisdiction, which goes to the court‟s power to exercise control
over the parties, is typically decided in advance of venue, which is primarily a matter of choosing
a convenient forum. Leroy v. Great Western United Corp., 443 U.S. 173, 180 (1979).

III. DISCUSSION
A.

Personal Jurisdiction

If the district court does not hold an evidentiary hearing, the plaintiff need only establish
a prima facie case of personal jurisdiction. O’Connor v. Sandy Lane Hotel Co., 496 F.3d 312,
316 (3d Cir. 2007). Notably, “by accepting the plaintiff‟s facts as true when a motion to dismiss
is originally made, a court is not precluded from revisiting the issue if it appears that the facts
alleged to support jurisdiction are in dispute.” Carteret Sav. Bank, FA v. Shushan, 954 F.2d 141,
142 n. 1 (3d Cir.1992).
Here, it is clear from Defendant‟s Motion to Dismiss and Plaintiff‟s opposition thereto,
Plaintiff is claiming that specific personal jurisdiction enables him to hale Defendant into the
United States District Court for the Western District of Pennsylvania.
In assessing the sufficiency of minimum contacts for personal jurisdiction, this Court
must focus upon the “relationship among the defendant, the forum and the litigation.” Keeton v.
Hustler Magazine, Inc., 465 U.S. 770, 775, 104 S.Ct. 1473, 1478, 79 L.Ed.2d 790 (1984)
(quoting Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2580, 53 L.Ed.2d 683 (1977)).

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The contacts between the defendant and the forum must be judged “in light of the claim,” the
analysis focusing on whether it is “fair” to compel the defendant to defend in the forum state.
Keeton, 465 U.S. at 775, 104 S.Ct. at 1478.
The United States Court of Appeals for the Third Circuit has determined that courts such
as this one must consider a three-part inquiry when deciding if specific personal jurisdiction
exists:
First, the defendant must have “purposefully directed [its] activities” at
the forum. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174,
2182, 85 L.Ed.2d 528 (1985) (internal 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, 104 S.Ct. at 1872; O’Connor, 496 F.3d at 317.
And third, if the first two requirements have been met, a court may consider
whether the exercise of jurisdiction otherwise “comport[s] with „fair play and
substantial justice.‟ ”
See D’Jamoos ex rel. Estate of Weingeroff v. Pilatus Aircraft Ltd., 566 F.3d 94, 102 (2009).
Moreover, in a case like the present one, where Plaintiff claims specific personal
jurisdiction is predicated on the operation of Defendant‟s commercially interactive website,
Defendant‟s mere operation of a website is insufficient to establish the “purposeful availment”
requirement for specific personal jurisdiction. Toys R Us, Inc. v. Step Two, S.A., 318 F.3d 446,
454 (3d Cir. 2003). However, if a defendant either targets the website to the forum state, and/or
knowingly conducting business with forum state residents via the website, then the “purposeful
availment” requirement is satisfied. Id. Similarly, in cases where the defendant is clearly doing
business through its website in the forum state, and where the claim relates to or arises out of use
of the website, personal jurisdiction exists. Id. at 452.
In D’Jamoos, the Court of Appeals weighed in on specific personal jurisdiction via
website interaction by holding that “the defendant‟s physical entrance into the forum is not
necessary[;]” however, the defendant‟s contacts must amount to “a deliberate targeting of the
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forum.” 566 F.3d at 103 (citations omitted). The Court of Appeals further noted that “[t]he
unilateral activity of those who claim some relationship with a nonresident defendant is
insufficient.” Id. (citation and internal quotations omitted).
Here, Defendant operated a commercially interactive website. Plaintiff, a Pennsylvania
resident, applied for a then-open job posted on Defendant‟s website. Based upon the application
made by Plaintiff through the website, Defendant initiated contacted Plaintiff by telephone to
further explore the possibility of a working relationship.
This Court finds that at the time of the first telephone contact with Plaintiff, Defendant
knew or should have known that Plaintiff was a Pennsylvania resident. Certainly, by the second
telephone contact/interview with Plaintiff, Defendant knew or should have known that Plaintiff
was a Pennsylvania resident. Finally, when Defendant “flew” Plaintiff to its headquarters in
Louisiana it knew it was communicating with a Pennsylvania resident.
Thus, given the extent of the contact with Plaintiff, the Court finds that Defendant
“purposefully directed” its employee recruitment and hiring activities to this forum. Therefore
the first part of the three-part D’Jamoos test is met.
Next, per Plaintiff‟s Complaint, this litigation is about Defendant‟s failure to hire Plaintiff
for a job in violation of the ADA and the PHRA. What is undisputed is that Defendant failed to
hire Plaintiff, a Pennsylvania resident, after Defendant actively and intentionally recruited
Plaintiff for the job at issue from his home in Pennsylvania. In addition, there appears to have
been a Pennsylvania medical professional who medically cleared Plaintiff to perform the job.
This medical professional‟s opinion was allegedly required by Defendant in order for Plaintiff to
meet the final hiring requirement. Thus, Plaintiff satisfies the second part of the minimum

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contacts inquiry, which requires him to establish that his claim arises out of or relates to at least
one of Defendant‟s purposeful contacts with the forum.
Finally, as noted above, Plaintiff has a Pennsylvania based medical professional who may
be central to the case. In addition, Defendant has been subject to EEOC proceedings related to
this matter in the Western District of Pennsylvania. Accordingly, by exercising personal
jurisdiction in this matter this Court will be comporting with the notions of fair play and
substantial justice thereby meeting the third part of the D’Jamoos inquiry.
B.

Venue

Venue in this ADA case is governed by the ADA which adheres to Title VII‟s venue
provisions.1 See generally, Lewis v. Commonwealth of Pennsylvania, civ no. 06-1162, 2007 WL
1247076 (W.D.Pa. April 5, 2007). The pertinent portion of Title VII pertaining to venue reads:
(3) Each United States district court . . . shall have jurisdiction of actions brought
under this subchapter. Such an action may be brought in any judicial district in the
State in which the unlawful employment practice is alleged to have been
committed, in the judicial district in which the employment records relevant to
such practice are maintained and administered, or in the judicial district in which
the aggrieved person would have worked but for the alleged unlawful
employment practice, but if the respondent is not found within any such district,
such an action may be brought within the judicial district in which the respondent
has his principal office. For purposes of sections 1404 and 1406 of Title 28, the
judicial district in which the respondent has his principal office shall in all cases
be considered a district in which the action might have been brought.
42 U.S.C.A. § 2000e-5(f)(3) (emphasis added).
Here, Plaintiff‟s Complaint alleges that the gravamen of his claim arises out of
occurrences which took place in Pennsylvania. For example, he contends his review of the job
description and the completion of the written portion of the job application took place in
Pennsylvania. He also alleges that Defendant initiated telephone conversations with him while
1

This Court notes that Plaintiff incorrectly asserted in his Complaint that venue was proper based upon 28 U.S.C.
§1391(b). See doc. no. 1 at ¶ 6. Given the nature of Plaintiff‟s case, venue here is conferred by 42 U.S.C.A.
§ 2000e-5(f)(3) as discussed above.

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he was located in Pennsylvania and after two such conversations, flew him from Pennsylvania to
Louisiana for purposes of solidifying a working relationship.
Additionally, according to the Complaint, at least one or more of the unlawful
employment practices took place in Pennsylvania. See doc. no. 1 at ¶ 62, 72 (“[Defendant‟s
General Counsel] stated that Plaintiff‟s decision to file an EEOC charge and his participation in
the EEOC‟s investigation caused [Defendant] to abandon it[s] prior offer to employ Plaintiff.”
and “[Defendant] refused to employ Plaintiff because of his participation in the EEOC
proceedings and/or his opposition to employment practices made unlawful [by] the ADA . . .”).
Based on these allegations, which the Court must accept as true for purposes of deciding
this Motion to Dismiss, the Court finds that Plaintiff has adequately pled facts which support this
Court as a proper venue for this case. Based on this finding, the Court shall decline to dismiss or
transfer this matter elsewhere.
C.

Plaintiff’s PHRA claim

The PHRA defines the term “employer” as an entity “employing four or more persons
within the Commonwealth.” 43 Pa.C.S.A. § 954. Defendant argues that Plaintiff‟s PHRA claim
against it must be dismissed because the Complaint fails to alleged that Defendant employs four
or more employees in Pennsylvania.
In response, Plaintiff argues that the “anti-retaliation” provision (43 Pa.C.S.A. § 955(d))
as well as the “aiding and abetting” provision of the PHRA (43 Pa.C.S.A. § 955(e)) cover not
only “employers” but “persons” as well. The PHRA defines the term “person” as “one or more
individuals, partnerships, associations, organizations, corporations, legal representatives, trustees
in bankruptcy or receivers.”

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This Court concurs that Plaintiff should permitted to pursue his PHRA anti-retaliation
and aiding-and-abetting claims against Defendant.

IV. CONCLUSION
Based on the foregoing law and authority, Defendant‟s Motion to Dismiss shall be
denied in all respects. The Court will also decline to transfer venue.
s/ Arthur J. Schwab
Arthur J. Schwab
United States District Judge

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