Free Motion to Dismiss/Lack of Subject Jurisdiction - District Court of Delaware - Delaware

Case 1:08-cv-00220-GMS

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - --x ILLINOIS CENTRAL RAILROAD : COMPANY, an Illinois Corporation : : Plaintiff, : : v. : : MAMMOET USA, INC., : : Defendant. : - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --x

Case No.: 07-cv-5109 (LS)

DEFENDANT'S MOTION TO DISMISS PURSUANT TO FED.R.CIV.P. 12(b)(2) and (3)

For the reasons set forth in the accompanying memorandum of law, Defendant Mammoet USA, Inc., by and through its attorneys, Schindel, Farman, Lipsius, Gardner & Rabinovich, LLP, respectfully moves pursuant to Fed.R.Civ.P. 12(b)(2) and (3) to dismiss the complaint because this Honorable Court lacks personal jurisdiction over Mammoet USA, Inc., or, alternatively, because venue in the Eastern District of Pennsylvania is not proper. SCHINDEL, FARMAN, LIPSIUS, GARDNER & RABINOVICH, LLP By: /s/ Jonathan F. Ball Jonathan F. Ball Attorney I.D. No. 59420

14 Penn Plaza, Suite 500 New York, New York 10122 (212) 563-1710 (212) 695-6602 (fax) [email protected] Attorneys for Defendant, Mammoet USA, Inc.

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CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 18th day of January, 2008, the foregoing Motion to Dismiss, and the Memorandum of Law in Support, and Exhibits 1 ­ 5, were filed electronically through the Court's ECF system. Notice of such electronic filing, and access to a true and correct copy of the foregoing pleading, will be given to the following counsel of record automatically through the Court's ECF system: John K. Fiorilla, Esquire CAPEHART &SCATCHARD, P.A. Laurel Corporate Center, Suite 300 8000 Midlantic Drive ­ C.S. 5016 Mount Laurel, NJ 08054 Counsel for Plaintiff Illinois Central Railway Company

SCHINDEL, FARMAN, LIPSIUS, GARDNER & RABINOVICH, LLP /s By:

Jonathan F. Ball I.D. No. 59420 14 Penn Plaza, Suite 500 225 W. 34th Street New York, NY 10022 (212) 563-1710 (212) 695-6602 (fax) [email protected] Counsel for Defendant Mammoet USA, Inc.

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - --x ILLINOIS CENTRAL RAILROAD : COMPANY, an Illinois Corporation : : Plaintiff, : : v. : : MAMMOET USA, INC., : : Defendant. : - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --x I. PRELIMINARY STATEMENT Illinois Central Railroad Company has sued Mammoet USA, Inc. to recover allegedly past due and owing charges assessed under the railroad's circulars and tariffs for freight transportation services it allegedly rendered for Mammoet USA, Inc. Mammoet USA, Inc. contends that Illinois Central cannot sustain its burden of establishing with reasonable particularity sufficient contacts between Mammoet USA, Inc. and the Commonwealth of Pennsylvania to show that jurisdiction is proper. Mammoet USA, Inc. further contends that venue is not proper in the Eastern District of Pennsylvania. Consequently, Mammoet USA, Inc. respectfully moves pursuant to Fed.R.Civ.P. 12(b)(2) and (3) to dismiss the complaint for lack of personal jurisdiction or, in the alternative, because venue in the Eastern District of Pennsylvania is not proper. II. FACTUAL BACKGROUND Illinois Central Railroad Company, an Illinois corporation with its principal place of business in Illinois, claims to have performed freight transportation services for Mammoet USA, Inc. in various locations through the United States and Canada. Illinois Central does not allege

Case No.: 07-cv-5109 (LS) MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS PURSUANT TO FED.R.CIV.P. 12(b)(2) and (3)

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that it rendered any services for Mammoet USA, Inc. in Pennsylvania. Illinois Central further alleges that it assessed charges for those services pursuant to its circulars and tariffs, and demanded payment from Mammoet USA. Illinois Central claims that Mammoet USA has failed or refused to pay charges in the amount of $53,324.40 US and $16,718 Canadian relative to 11 freight movements that occurred between September 2005 and April 2006. Complaint at ¶¶ 2, 58 and at Exhibit A (A true and correct copy of Plaintiff's Complaint is attached hereto as Exhibit 1). Illinois Central has invoked federal question jurisdiction pursuant to 28 U.S.C. § 1337(a) because its cause of action arises under 49 U.S.C. § 10743(a). Exhibit 1 (Complaint) at ¶ 1. The only averment of the complaint that appears to address either personal jurisdiction over the defendant or the propriety of venue in the Eastern District of Pennsylvania is Illinois Central's assertion that Mammoet USA maintains an office at 1246 Maidencreek Road, Fleetwood, Berks County, Pennsylvania 19522. Exhibit 1 (Complaint) at ¶ 4. Unfortunately for Illinois Central, it has identified the office address for Mammoet USA NE Corp., a separate corporation that is not a party to this action. Affidavit of Jacco van der Pol at ¶¶ 3-4 (a true and correct copy of which is attached hereto as Exhibit 2). Non-party Mammoet USA NE Corp. is a Delaware Corporation. State of Delaware Division of Corporations Entity Details File Number 3113183 (A true and correct copy of which is attached hereto as Exhibit 3). Non-party Mammoet USA NE Corp. is duly registered to do business in Pennsylvania, and maintained an office at 1246 Maidencreek Road, Fleetwood, Berks County, Pennsylvania 19522. Commonwealth of Pennsylvania Department of State Business Entity Filing History, Entity No. 3155951 (a true and correct copy of which is attached hereto as Exhibit 4). Defendant Mammoet USA, Inc. is a Delaware Corporation. State of Delaware

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Division of Corporations Entity Details File Number 2215994 (A true and correct copy of which is attached hereto as Exhibit 4). Defendant Mammoet USA, Inc. does not have an office in Pennsylvania. Exhibit 2 (van der Pol affidavit) at ¶¶ 5-6. Defendant Mammoet USA, Inc. has not done, and does not do, business out of non-party Mammoet USA NE Corp.'s office in Fleetwood, PA. Exhibit 2 (van der Pol affidavit) at ¶ 5. Apart from its mistaken reference to the address of an office belonging to a similarly named, yet entirely separate, corporation, Illinois Central has not made any assertions that would establish general or even specific jurisdiction over Mammoet USA, Inc., a non-resident defendant. Likewise, Illinois Central has not alleged that any, let alone a substantial part, of the events or omissions giving rise to its claim occurred within the Eastern District of Pennsylvania. Mammoet USA, Inc. did not request that Illinois Central perform any services for Mammoet USA, Inc. in Pennsylvania. Exhibit 2 (van der Pol affidavit) at ¶ 7. Finally, Illinois has not alleged that there is no district in which this action may otherwise be brought. III. LEGAL ARGUMENT A. This Honorable Court lacks personal jurisdiction over Mammoet USA, Inc. 1. Applicable standard

When confronted with an objection or defense raising lack of personal jurisdiction, the plaintiff must demonstrate through affidavits or other evidence that jurisdiction is proper. Dayhoff, Inc. v. H.J. Heinz Co., 86 F.3d 1287 (3d Cir. 1996). To meet this burden, the plaintiff must establish with reasonable particularity sufficient contacts between the defendant and the forum state. Mellon Bank (East) PSFS, N.A. v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992). In determining whether it may exercise personal jurisdiction over a non-resident defendant, a federal district court must apply the laws in which it sits. Bucks County Playhouse

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v. Bradshaw, 577 F. Supp. 1203, 1206 (E.D. Pa. 1983). As this Honorable Court has recently stated, "Pennsylvania's long-arm statute extends jurisdiction over non-residents to the `fullest extent allowed under the Constitution of the United States.' 42 Pa. Const. Stat. Ann. § 5322(b). Pennsylvania's statute is therefore coextensive with the constitutional limits set by the due process clause of the Fourteenth Amendment." Pulse Technologies, Inc. v. Dodrill, 2006 WL 3589028 at *2 (E.D. Pa. 2006) (Stengel, J.). Accordingly, personal jurisdiction is proper only if Illinois Central's claim is related to our arises out of Mammoet USA, Inc.'s minimum contacts in the forum under the standards established by International Shoe Co. v. Washington, 326 U.S. 310 (1945). 2. Argument

A single averment in Illinois Central's complaint appears to be intended to provide the basis for establishing both personal jurisdiction over Mammoet USA, Inc. and proper venue in the Eastern District of Pennsylvania. Illinois Central asserts that Mammoet USA maintains an office at 1246 Maidencreek Road, Fleetwood, Berks County, Pennsylvania 19522. Exhibit 1 (Complaint) at ¶ 4. Illinois Central apparently relies on the supposed physical presence of Mammoet USA, Inc. in Pennsylvania to demonstrate the requisite minimum contacts between the defendant and the forum state. See, e.g., Mellon Bank, 960 F.2d at 1225. Unfortunately for Illinois Central, it has identified the office address for Mammoet USA NE Corp., a separate corporation that is not a party to this action. Affidavit of Jacco van der Pol at ¶¶ 3-4 (a true and correct copy of which is attached hereto as Exhibit 2). Non-party Mammoet USA NE Corp. is a Delaware Corporation. State of Delaware Division of Corporations Entity Details File Number 3113183 (A true and correct copy of which is attached hereto as Exhibit 3). Non-party Mammoet USA NE Corp. is duly registered to do business in

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Pennsylvania, and maintained an office at 1246 Maidencreek Road, Fleetwood, Berks County, Pennsylvania 19522. Commonwealth of Pennsylvania Department of State Business Entity Filing History, Entity No. 3155951 (a true and correct copy of which is attached hereto as Exhibit 4). Defendant Mammoet USA, Inc. is a Delaware Corporation. State of Delaware Division of Corporations Entity Details File Number 2215994 (A true and correct copy of which is attached hereto as Exhibit 4). Defendant Mammoet USA, Inc. does not have an office in Pennsylvania. Exhibit 2 (van der Pol affidavit) at ¶¶ 5-6. Defendant Mammoet USA, Inc. has not done, and does not do, business out of non-party Mammoet USA NE Corp.'s office in Fleetwood, PA. Exhibit 2 (van der Pol affidavit) at ¶ 5. Although minimum contacts sufficient to confer personal jurisdiction may exist even in the absence of the defendant's physical presence in the forum state, Mellon Bank, 960 F.2d at 1225, Illinois Central has not alleged any other facts intended to show that Mammoet USA, Inc. deliberately engaged in significant activities in Pennsylvania, or somehow created continuing obligations between itself and Pennsylvania. See, Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-76 (1985). Illinois Central has not alleged any specific acts or conduct by Mammoet USA, Inc. in or directed towards Pennsylvania regarding the claim at issue. Mammoet USA, Inc. did not request that Illinois Central perform any services for Mammoet USA, Inc. in Pennsylvania. Exhibit 2 (van der Pol affidavit) at ¶ 7. In light of the foregoing, Illinois Central has not met its burden of establishing minimum contacts sufficient to support this Honorable Court's exercise of personal jurisdiction over Mammoet USA, Inc. Consequently, this Honorable Court should grant Mammoet USA, Inc.'s

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motion, and dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction.1 B. Venue is not proper in the Eastern District of Pennsylvania 1. Applicable standard

The moving party bears the burden of proving that venue is improper. George Young Co. v. Bury Bros., Inc., 2004 WL 1173129 at *7 (E.D. Pa. 2004) citing Myers v. Am. Dental Assoc., 695 F.2d 716, 724-35 (3d Cir. 1982). Where, as here, the defendant does not reside in the forum state, and the suit could be brought in another district, the test for determining the propriety of a plaintiff's chosen venue is the location of the acts or omissions that give rise to the plaintiff's claims rather than the defendant's contacts with the district in which the plaintiff filed suit.2 Cottman Transmission Sys., Inc. v. Martino, 36 F.3d 291, 294 (3d Cir. 1994) (addressing venue under 28 U.S.C. § 1391(a)(2), the provisions of which are identical to 28 U.S.C. § 1391(b)(2)). 2. Argument

Because Illinois Central relies on the existence of a federal question as the basis for subject matter jurisdiction, venue is governed by 28 U.S.C. § 1391(b). That section provides, in pertinent part, that suit may be brought in a judicial district in which: (1) any defendant resides, if all defendants reside in the same state; (2) a substantial part of the events or omissions giving

Because Illinois Central has not established sufficient minimum contacts, it is not necessary to determine whether exercising personal jurisdiction over Mammoet USA, Inc. would be reasonable and comport with traditional notions of fair play and substantial justice. See, Penzoil Prods. Co. v. Collelis & Assoc., Inc., 149 F.3d 197, 201 (3d Cir. 1998). 2 Illinois Central's averment that Mammoet USA, Inc. had an office in Berks County, PA suggests that it intended to establish venue in this district pursuant to 28 U.S.C. § 1391(b)(1). Because, as established by Mammoet USA, Inc.'s submissions with this motion, Mammoet USA, Inc. does not reside in Pennsylvania, § 1391(b)(1) cannot apply. Moreover, because suit could have been brought in at least one other district, i.e. Delaware, § 1391(b)(3) cannot apply. -6-

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rise to its claim occurred; or (3) any defendant may be found, if there is no district in which the action may otherwise be brought. 28 U.S.C. § 1391(b). Inasmuch as Mammoet USA, Inc. is a corporation, it is deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. 28 U.S.C. § 1391(c). As discussed above, the only averment in Illinois Central's complaint that addresses venue states that Mammoet USA maintains an office at 1246 Maidencreek Road, Fleetwood, Berks County, Pennsylvania 19522. Exhibit 1 (Complaint) at ¶ 4. Illinois Central has identified the office address for Mammoet USA NE Corp., a separate corporation that is not a party to this action. Affidavit of Jacco van der Pol at ¶¶ 3-4 (a true and correct copy of which is attached hereto as Exhibit 2). Non-party Mammoet USA NE Corp. is a Delaware Corporation. State of Delaware Division of Corporations Entity Details File Number 3113183 (A true and correct copy of which is attached hereto as Exhibit 3). Non-party Mammoet USA NE Corp. is duly registered to do business in Pennsylvania, and maintained an office at 1246 Maidencreek Road, Fleetwood, Berks County, Pennsylvania 19522. Commonwealth of Pennsylvania Department of State Business Entity Filing History, Entity No. 3155951 (a true and correct copy of which is attached hereto as Exhibit 4). Defendant Mammoet USA, Inc. is a Delaware Corporation. State of Delaware Division of Corporations Entity Details File Number 2215994 (A true and correct copy of which is attached hereto as Exhibit 4). Defendant Mammoet USA, Inc. does not have an office in Pennsylvania. Exhibit 2 (van der Pol affidavit) at ¶¶ 5-6. Defendant Mammoet USA, Inc. has not done, and does not do, business out of non-party Mammoet USA NE Corp.'s office in Fleetwood, PA. Exhibit 2 (van der Pol affidavit) at ¶ 5. Venue is not proper in the Eastern District of Pennsylvania under 28 U.S.C. § 1391(b)(1) because Mammoet USA, Inc. does not reside within the district. Illinois Central has not made

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any averments that a substantial part of the events or omissions giving rise to the claim occurred within the Eastern District. Similarly, Illinois Central has not contended that there is no other district in which this case could be brought. Therefore, venue is not proper because the requirements of 28 U.S.C. §1391(b)(2) and (3) have not been satisfied. In light of the foregoing, venue is not proper in the Eastern District of Pennsylvania. This Honorable Court should therefore grant Mammoet USA, Inc.'s motion, and dismiss Illinois Central's complaint pursuant to Fed.R.Civ.P. 12(b)(3) due to improper venue. IV. CONCLUSION The sole basis alleged by Illinois Central Railroad Company to establish both personal jurisdiction and venue is incorrect. Mammoet USA, Inc. is not a resident of Pennsylvania, let alone the Eastern District. Illinois Central has not established sufficient minimum contacts to support personal jurisdiction over Mammoet USA, Inc. Moreover, Illinois Central has not established any cognizable basis for venue in the Eastern District of Pennsylvania. This Honorable Court should therefore dismiss the complaint for lack of personal jurisdiction or, in the alternative, because venue in the Eastern District of Pennsylvania is not proper. SCHINDEL, FARMAN, LIPSIUS, GARDNER & RABINOVICH, LLP By: /s/ Jonathan F. Ball Jonathan F. Ball Attorney I.D. No. 59420

14 Penn Plaza, Suite 500 New York, New York 10122 (212) 563-1710 (212) 695-6602 (fax) [email protected] Attorneys for Defendant, Mammoet USA, Inc.

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - --x ILLINOIS CENTRAL RAILROAD : COMPANY, an Illinois Corporation : : Plaintiff, : : v. : : MAMMOET USA, INC., : : Defendant. : - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --x

Case No.: 07-cv-5109 (LS)

ORDER

AND NOW, this _____ day of ____________________, 2008, upon consideration of Defendant's Motion to Dismiss (Document No. 9) and Plaintiff's response, it is hereby ORDERED that the motion is GRANTED. The case is DISMISSED because this Court lacks personal jurisdiction over Defendant.

BY THE COURT:

LAWRENCE F. STENGEL, J.

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - --x ILLINOIS CENTRAL RAILROAD : COMPANY, an Illinois Corporation : : Plaintiff, : : v. : : MAMMOET USA, INC., : : Defendant. : - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --x

Case No.: 07-cv-5109 (LS)

ORDER

AND NOW, this _____ day of ____________________, 2008, upon consideration of Defendant's Motion to Dismiss (Document No. 9) and Plaintiff's response, it is hereby ORDERED that the motion is GRANTED. The case is DISMISSED because venue in the Eastern District of Pennsylvania is not proper.

BY THE COURT:

LAWRENCE F. STENGEL, J.