KERSHNER v. KOMATSU LTD. et al
Filing
79
MEMORANDUM OPINION resolving 44 Komatsu, Ltd.'s motion for summary judgment. Signed by Judge David S. Cercone on 3/26/19. (mwm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MATTHEW KERSHNER,
Plaintiff,
v.
KOMATSU LTD., et al.,
Defendant.
)
)
)
)
)
)
)
)
)
2:18-cv-00468-DSC
Electronic Filing
MEMORANDUM OPINION
Plaintiff commenced this action seeking redress for injuries sustained when he was
injured by a bulldozer manufactured by Komatsu, Ltd., and sold by Komatsu America
Corporation. Presently before the court is defendant Komatsu, Ltd.’s motion for summary
judgment. The motion seeks to raise a defense of lack of personal jurisdiction. For the reasons
set forth below, the motion will be denied because Komatsu, Ltd., is estopped from raising the
defense, has otherwise waived the ability to raise it, and has consented to jurisdiction as to this
case.
The pertinent facts are as follows. Plaintiff filed this lawsuit in the Court of Common
Pleas of Philadelphia County, Pennsylvania, against Komatsu America Corporation (“Komatsu
America”) and its parent corporation, Komatsu, Ltd. (“KLTD”). On October 24, 2017,
Defendants removed the action to the United District Court for the Eastern District of
Pennsylvania. KLTD provided written consent to the removal. See Notice of Removal (Doc.
No. 1) at ¶ 34.
1
On October 31, 2017, Komatsu America filed a motion pursuant to Federal Rule of Civil
Procedure Rule 12(b)(3) alleging improper venue and alternatively requesting transfer pursuant
to 28 U.S.C. § 1406(a). KLTD joined in the motion.
On December 5, 2017, KLTD and Komatsu American filed their reply brief in support of
the motion. Therein, these defendants withdrew their request for outright dismissal and
contended that the case should be transferred to the Western District pursuant to 28 U.S.C. §
1404(a) because it was “a far more proper and convenient venue for Plaintiff’s claims.”
Defendants’ Reply Brief (Doc. No. 10) at 1. In doing so, these defendants directly
acknowledged it was their burden to show “the transferee district can exercise personal
jurisdiction over the defendants.” Id. at 3 (citing Shutte v. Armco Steel Corp., 431 F.2d 22, 24
(3d Cir. 1970)). Neither KLTD nor Komatsu America informed the court that it had a challenge
to personal jurisdiction in Pennsylvania.
On April 10, 2018, the Honorable Cynthia M. Rufe granted defendants’ motion to
transfer. In her memorandum opinion, Judge Rufe conducted a § 1404(a) analysis and concluded
that the action properly should be transferred to the Western District for the convenience of the
parties.
On April 27, 2018, KLTD answered plaintiff’s complaint. Thereafter, KLTD actively
has participated in pre-trial development. For example, it attended the initial case management
conference, submitted disclosure statements, and participated in formulating the protocol for
submission of the case to this court’s mandatory Alternative Dispute Resolution Program. In
addition, the case was referred to mediation, which is to be completed by August 21, 2019.
Following the Rule 16 conference, a Case Management Order was entered on June 18, 2018, and
the parties have engaged in discovery. KLTD filed the instant motion on August 17, 2018.
2
KLTD moves for summary judgment on the ground that this court cannot exercise
general or specific jurisdiction over it. KLTD is precluded from maintaining a lack of personal
jurisdiction defense and it has waived the defense in a multitude of ways in any event.
First, KLTD joined in a § 1404(a) motion to transfer the case to this District. Transfer
pursuant §1404(a) requires the transferee forum to possess the requisite personal jurisdiction
over all the parties and to be a proper and convenient venue for litigating the action. See Shutte,
431 F.2d at 23 (a § 1404(a) transfer is "authorized by the statute only if the plaintiff had an
'unqualified right' to bring the action in the transferee forum at the time of the commencement of
the action; i.e., venue must have been proper in the transferee district and the transferee court
must have had power to command jurisdiction over all of the defendants.") (collecting cases);
Jones v. Valley Welding Supply, Co., 303 F. Supp. 9, 12 (W.D. Pa. 1969 ("where plaintiff has
not acquired personal jurisdiction over the defendant and has not submitted evidentiary material
to support personal jurisdiction in the transferee court, a motion to transfer under Sections 1404
and 1406 cannot be granted"). The moving party has the burden of establishing the prerequisites
for transfer. Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995).
Here, Magistrate Judge Rufe took KLTD at its word and transferred the action pursuant
to its request. KLTD is now estopped from contending otherwise. See Microsoft Corp. v.
Baker, -- U.S. --, 137 S. Ct. 1702, 1714 (2017) (“where a party assumes a certain position in a
legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply
because his interests have changed, assume a contrary position”) (quoting Davis v. Wakelee, 156
U.S. 680, 689 (1895)); Beltz v. Erie Indem. Co., 733 F. App'x. 595, 600 (3d Cir. 2018), reh'g
denied (June 14, 2018) (“Judicial estoppel bars ‘a party from prevailing in one phase of a case on
3
an argument and then relying on a contradictory argument to prevail in another phase.’”)
(quoting New Hampshire v. Maine, 532 U.S 742, 749 (2001)).
The purpose of judicial estoppel is to protect the integrity of the judicial process. New
Hampshire v. Maine, 532 U.S. at 749. It prohibits parties from changing positions according to
the exigencies of the moment. Id. It is an equitable doctrine that may be invoked by a court at
its discretion. Id. It is intended to prevent a party from improper use of the judicial process. It
prevents a party from taking inconsistent positions that in combination indicate that either the
initial or subsequent court has been misled. Id. (citing Edwards v. Aetna Life Ins. Co., 690 F.2d
595, 598 (6th Cir. 1982)). And it is applicable here, where KLTD necessarily has posited that
personal jurisdiction existed in this District in order to gain the benefit of a § 1404(a) transfer
and then after gaining that relief has taken the contrary position that the action could not have
been brought against it in this forum.
Second, KLTD has waived the defense under the Federal Rules of Civil Procedure.
Federal Rule of Civil Procedure Rule 12(b) states that “[e]very defense to a claim for relief in
any pleading must be raised in the responsive pleading if one is required. But a party may assert
the following defenses by motion: . . . (2) lack of personal jurisdiction . . . . A motion asserting
any of these defenses must be made before pleading if a responsive pleading is allowed.”
Generally, when a Rule 12(b) motion is filed all such defenses must be raised. Fed. R.
Civ. P. Rule 12(g). Under Rule 12(h)(1), the threshold defenses in Rule 12(b)(2) through
12(b)(5) are waived if they are not included in a single responsive motion under Rule 12. See 5C
Wright and Miller, FED. PRAC. & PROC. Civ. § 1391 (3d ed.). It is beyond question that anytime
a defendant files a pre-answer Rule 12 responsive motion, it must include any of the defenses set
forth in Rule (12)(b)(2)-(5) that it has: the failure to do so results in a waiver. See Emekekwue v.
4
Offor, 1:11-CV-01747, 2012 WL 5249414, at *3 (M.D. Pa. Oct. 24, 2012) (“Rule 12(g) requires
a party who brings a Rule 12 motion to join all available Rule 12(b)(2)-(5) defenses in that
motion [and if] a party fails to raise any defense listed in Rule 12(b)(2)-(5) in their motion, Rule
12(h)(1) provides that those defenses are waived.”) (citing Ins. Corp. of Ireland, Ltd. v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 704 (1982) (discussing framework for waiver
of personal jurisdiction and noting that failure to raise timely objection under Rule 12(h)
constitutes waiver)). In other words, “a party who fails to raise personal jurisdiction as a defense
in a Rule 12 motion is precluded from raising that defense in an answer or in a subsequent
motion.” Id. (citing Myers v. American Dental Ass'n, 695 F.2d 716, 720 (3d. Cir. 1982), cert.
denied, 462 U.S. 1106 (1983) and 2A J. Lucas & J. Moore, MOORE'S FEDERAL PRACTICE ¶
12.23, at 2225 (2d ed.1982)).
Here, KLTD joined in a Rule 12 motion attacking venue and seeking a § 1406 and then §
1404(a) transfer. It did not raise its 12(b)(2) defense.1 It follows that KLTD has waived the
ability to raise the defense. Compare Myers, 695 F.2d at 721 (The defendant, which failed to
include an objection to the court’s exercise of personal jurisdiction in its motion to dismiss and
proceeded solely on the basis on improper venue, waived its right to challenge personal
jurisdiction "in [the] answer or otherwise.").
Third, KTLD has consented to jurisdiction here through sufficient participation in this
litigation. It answered plaintiff’s complaint; it attended the initial case management conference;
it submitted disclosure statements; it participated in formulating the protocol for submitting the
case to this court’s mandatory Alternative Dispute Resolution Program; and it has entered into
1
Of course, doing so would likely have proved fatal to its request for transfer, which in turn
would have impacted the remaining defendants' ability to obtain such relief at that stage in the
litigation.
5
the discovery phase of the litigation. It is far too late in the day to assert that it is not a proper
invitee to the dance. Compare Emekekwue, 2012 WL 5249414, *3 n.6 (a party consents to
personal jurisdiction if he "actually litigates the underlying merits or demonstrates a willingness
to engage in extensive litigation in the forum"); Nat. Union Fire Ins. Co. of Pittsburgh, PA v.
Beta Construction, LLC, 2010 WL 4316573, *1 (M.D. Fla., Oct. 26, 2010) ("[Defendant] has
also waived his right to attack the personal jurisdiction of this Court by entering an appearance
and participating in the case management conference without objecting to the Court's personal
jurisdiction."); Lomaglio Associates, Inc. v. LBK Marketing Corp., 876 F. Supp. 41 (D.C.N.Y.
1995) (“If a party requests that a court exercise its power on that party's behalf, and the request is
not preceded or accompanied by an objection to personal jurisdiction, that party is deemed to
have waived the defense of lack of personal jurisdiction.”). KLTD has participated in pretrial
preparation needed for adjudicating the case on the merits. Its participation reflects a sufficient
degree of case development to constitute consent to this court's jurisdiction as to this case.
For the reasons set forth above, KLTD’s motion for summary judgment must be denied
because it is estopped from raising the defense, has otherwise waived the ability to raise it and
has consented to jurisdiction as to this case. An appropriate order will follow.
Date: March 26, 2019
s/David Stewart Cercone
David Stewart Cercone
Senior United States District Judge
cc:
Arthur L. Bugay
Eric A. Weiss
Kiernan G. Cavanagh
Nicolai Andrew Schurko
Stuart H. Sostmann
(Via CM/ECF Electronic Mail)
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?