LIDEY v. MOSER'S RIDES, SRL

Filing 24

MEMORANDUM ORDER denying 7 Motion to Dismiss. The Clerk shall TRANSFER this case to the United States District Court for the Middle District of Florida, Tampa Division, and mark this case CLOSED. Signed by Judge Arthur J. Schwab on 5/12/16. (eet)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ARCHIE E. LIDEY, III,
Plaintiff,

15cv0683
ELECTRONICALLY FILED

v.
MOSER’S RIDES, SRL,
Defendant.

MEMORANDUM ORDER DENYING DEFENDANT’S MOTION TO DISMISS AND
TRANSFERRING CASE PURSUANT TO 28 U.S.C. § 1631
Plaintiff Archie E. Lidey, III (“Plaintiff” or “Lidey”) filed this action on May 26, 2015
alleging defective design and manufacture of an amusement park attraction known as the “Spring
Ride” and manufactured by Defendant Moser Rides, S.r.L., an Italian company (incorrectly
identified in the caption as “Moser’s Rides, SRL” and hereinafter referred to as “Moser” or
“Defendant”). Doc. No. 1. Plaintiff allegedly sustained injuries when his arm was caught in a
pinch point of the Spring Ride while he was assembling it. Id.
Moser has moved to dismiss this action pursuant to Federal Rule of Civil Procedure
12(b)(2) for lack of personal jurisdiction or Rule 12(b)(5) for failure to effect service on Moser,
an Italian company, in a timely manner. Doc. Nos. 7 and 8. Plaintiff concedes that this Court
does not have jurisdiction over Moser, but argues that the United States District Court for the
Middle District of Florida, Tampa Division, has specific jurisdiction over Moser and the case
should be transferred to that district court pursuant to 28 U.S.C. § 1406(a)1. For the reasons set

1

28 U.S.C. § 1406(a) provides for the dismissal or transfer of a case brought in a district court in which venue is
improper. As the events allegedly causing Plaintiff’s injury occurred within the Western District of Pennsylvania, it
appears venue would be proper, although jurisdiction is lacking. As discussed, infra, 28 U.S.C. § 1631 provides
authority for the transfer of a case from a district court lacking personal jurisdiction over the defendant to another

forth herein, the Court will DENY Defendant’s Motion to Dismiss and will TRANSFER the case
to the United States District Court for the Middle District of Florida, Tampa Division.
I.

Legal Standards

A. Rule 12(b)(2)
Fed. R. Civ. P. 12(b)(2) permits a defendant to challenge the Court’s exercise of personal
jurisdiction. When considering a motion to dismiss pursuant to Rule 12(b)(2), the Court must
accept plaintiff’s allegations as true and construe disputed facts in his favor. Pinker v. Roche
Holdings, 292 F.3d 361, 368 (3d Cir. 2002). The plaintiff bears the burden of showing sufficient
contacts between the defendant and the forum to establish jurisdiction. Provident Nat’l Bank v.
California Fed. Sav. & Loan Ass’n, 819 F.2d 434, 437 (3d Cir. 1987).
Here, Plaintiff concedes that general jurisdiction and specific jurisdiction are absent in
the Western District of Pennsylvania. Doc. No. 22. He asserts that the United States District
Court for the Middle District of Florida has specific jurisdiction over Defendant. Id. To
establish specific jurisdiction, a plaintiff must show that (1) “the defendant must have
purposefully directed its activities at the forum;” (2) “the litigation must arise out of or relate to
at least one of those activities;” and (3) “if the first two requirements have been met, a court may
consider whether the exercise of jurisdiction otherwise comports with fair play and substantial
justice.” D’Jamoos v. Pilatus Aircraft Ltd., 566 F.3d 94, 102 (3d Cir. 2009) (citations omitted).
B. Rule 12(b)(5)
Fed. R. Civ. P. 12(b)(5) allows a defendant to move to dismiss a case for insufficiency of
service of process. Fed. R. Civ. P. 4(m) generally provides that a defendant must be served
within 90 days after the complaint is filed, but specifically exempts service of parties in foreign

district court which has jurisdiction. See discussion of 28 U.S.C. §§ 1404, 1406(a), and 1631 in Allegheny
Technologies, Inc. v. Strecker, 2007 WL 853547 at *7 (W.D. Pa., March 16, 2007).

countries from this requirement. Fed. R. Civ. P. 4(f) provides that a foreign party may be served
“by any internationally agreed means of service that is reasonably calculated to give notice, such
as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial
Documents[.]”
C. Transfer
28 U.S.C. § 1631 provides that if a civil action is filed in a district court that finds there is
a lack of jurisdiction, “the court shall, if it is in the interest of justice, transfer such action or
appeal to any other such court in which the action or appeal could have been brought at the time
it was filed or noticed[.]”
II.

Analysis2

A. Rule 12(b)(2)
Moser manufactured the Spring Ride in Italy. Moser then transported the Spring Ride to
Jacksonville, Florida; showed the Spring Ride at a tradeshow in Orlando, Florida in an attempt to
sell it; stored the Spring Ride in Riverview Florida for approximately 3 years; and then
ultimately sold the Spring Ride to MAC Amusement Company in Florida3. The Spring Ride was
then apparently sold twice more before arriving in Pennsylvania.
These actions by Defendant show that it has purposefully availed itself of the privilege of
conducting business within the state of Florida to sell the Spring Ride. Moreover, as Plaintiff’s
claims relate to the design and manufacture of the Spring Ride, a sufficient causal relationship
exists between Plaintiff’s claims and Defendant’s actions within Florida in attempting to and
2

Because the Court writes primarily for the Parties, it will not repeat the lengthy factual allegations contained in the
Parties’ briefs (doc. nos. 8, 22, and 23), but incorporates them by reference. The Court notes that, although the
Parties disagree about their significance, the relevant factual matters applicable to the Court’s analysis are mostly
undisputed.
3
Defendant argues that Plaintiff has failed to establish that the “sale and/or negotiations for the sale” actually
occurred in Florida, but the Court finds that, drawing the inferences in the light most favorable to Plaintiff as it must,
Plaintiff has established this fact for purposes of this Motion to Dismiss.

ultimately selling the Spring Ride. Florida’s Long-Arm Statute permits a court to exercise
specific jurisdiction over a nonresident Defendant “when the Plaintiff’s cause of action arises
from or is directly related to a Defendant’s contacts with the forum state.” Crowe v. Paragon
Relocation Res., Inc., 506 F. Supp. 2d 1113, 1120 (N.C. Fla. 2007). Here, it was reasonable for
Moser to foresee that, having sold the Spring Ride in Florida, it may be haled in to court there in
the event of claims of defective design and/or manufacture of the ride.
Accordingly, Defendant’s Motion to Dismiss under Rule 12(b)(2) will be DENIED as
this Court will transfer the case to the Middle District of Florida.
B. Rule 12(b)(5)
Although service of Defendant Moser in Italy was not made for 261 days after the filing
of the Complaint, Plaintiff has shown that he was diligent and took reasonable steps to follow the
procedures of the Hague Convention on the Service Abroad of Judicial and Extrajudicial
Documents in order to properly serve Moser in Italy. Accordingly, Defendant’s Motion to
Dismiss under Rule 12(b)(5) will be DENIED.
C. Transfer
Because this Court finds that jurisdiction is proper within the Middle District of Florida,
and because Florida has an interest in adjudicating disputes over defectively designed and
manufactured products sold within its borders, the interests of justice require that this Court
transfers the case to the United States District Court for the Middle District of Florida.

III.

Conclusion

For the reasons set forth, Defendant’s Motion to Dismiss under Rule 12(b)(2) is
DENIED, and Defendant’s Motion to Dismiss under Rule 12(b)(5) is DENIED. IT IS HEREBY
ORDERED that the civil action is TRANSFERRED to the United States District Court for the
Middle District of Florida. The Clerk shall mark this case CLOSED.
SO ORDERED, this 12th day of May, 2016,
s/Arthur J. Schwab_______
Arthur J. Schwab
United States District Judge