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

Case 1:07-cv-00626-JJF

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IN THEUNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY MARK BEKIER and RENEE BEKIER, PLAINTIFFS, v. COMMONWEALTH CONSTRUCTION COMPANY, INC. and JOHN DOES 1-20 (fictitious names of individuals, sole Proprietors, partnerships, corporations, or any entities who owned, managed, maintained inspected and/or constructed the subject Property) jointly, severally or in the Alternative DEFENDANTS : : : : : : : : : : : : : : : CIVIL ACTION NO: 07-0541

The Honorable Noel L. Hillman

Defendant Commonwealth Construction Company Inc's Motion to Dismiss Pursuant to F.R.C.P. 12(b)(2), or in the alternative 12(b)(3).

Defendant, Commonwealth Construction Co., Inc. a/k/a Commonwealth Construction Company (hereinafter referred to as "Moving Defendant") hereby files this Motion to Dismiss pursuant to F.R.C.P. 12 (b)(2) for lack of personal jurisdiction, or in the alternative based upon improper venue F.R.C.P. (b)(3). Moving Defendant incorporates by reference the attached Memorandum of Law in support of this Motion.

DEASEY, MAHONEY & BENDER, LTD.

/s Sheryl L. Brown JANE A. NORTH, ESQUIRE SHERYL L. BROWN, ESQUIRE 80 TANNER STREET Haddonfield, NJ 08033 T: 856-429-6331 Attorneys for Defendant, Commonwealth Construction Company, Inc.

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IN THEUNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY : : PLAINTIFFS, : v. : : COMMONWEALTH CONSTRUCTION : COMPANY, INC. and JOHN DOES 1-20 : (fictitious names of individuals, sole : Proprietors, partnerships, corporations, or : any entities who owned, managed, maintained: inspected and/or constructed the subject : Property) jointly, severally or in the : Alternative : DEFENDANTS : MARK BEKIER and RENEE BEKIER, CIVIL ACTION NO: 07-0541

The Honorable Noel L. Hillman

Defendant Commonwealth Construction Company Inc's Brief in Support of its Motion to Dismiss Pursuant to F.R.C.P. 12(b)(2), or in the alternative 12(b)(3)

Defendant, Commonwealth Construction Co., Inc., a/k/a Commonwealth Construction Company (hereinafter referred to as "Moving Defendant") hereby files this Memorandum of Law in support of its Motion to Dismiss and avers as follows: I. BRIEF STATEMENT OF FACTS: Plaintiffs, Mark Bekier and Renee Bekier commended this litigation on February 1, 2007, stemming from injuries Plaintiff Mark Bekier allegedly suffered on February 2, 2005, when Plaintiff, purportedly, in the course and scope of his employment, fell approximately 10 feet to the ground. (See, Plaintiffs' Complaint attached hereto and marked Exhibit "A"). Plaintiffs assert jurisdiction based upon 28 U.S.C. § 1332 -- diversity of citizenship. In suppor t of this, Plaintiffs aver that they reside in Bellmawr, New Jersey. Plaintiffs also aver that Mr. Bekier sustained his injuries while working at a construction site in the State of Delaware. Furthermore, Plaintiffs aver that Moving Defendant's

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principal place of business is also located Wilmington Delaware. (See, Complaint at ¶3). However, a fact disputed by the Moving Defendant, Plaintiffs also alleges that the Moving Defendant was licensed to do business in the State of New Jersey and conduct substantial business in New Jersey. (See, Complaint at ¶ 4). Plaintiff also alleges claims against "John Does 1-20" for purported construction site negligence. Plaintiffs fail to aver the citizenship of any of the John Does. (See, Complaint at Count II). Plaintiff has no personal jurisdiction over the Moving Defendant as there are no ties between the Moving Defendant and the instant Jurisdiction. The only tie to this jurisdiction is the fact that the Plaintiffs reside in New Jersey. Because Plaintiffs have no personal jurisdiction over the Moving Defendant, Plaintiffs claims must be dismissed, with prejudice. In the alternative, Moving Defendant seeks dismissal based upon improper venue. II. LEGAL ARGUMENT A. Standard for Personal Jurisdiction Pursuant to the Federal Rules of Civil Procedure, a defendant is permitted to file a motion to dismiss a complaint based upon the plaintiffs' lack of personal jurisdiction. F.R.C.P. 12(b)(2). Whether a court has jurisdiction over an out of state defendant depends upon the laws of the state where the court is located. Here, New Jersey's long arm statute extends jurisdiction to the full scope permissible under the due process restrictions of the Fourteenth Amendment. See, N.J. Ct. R. 4:4-4-4(b)(1); Charles Gendler & Co., Inc. v. Telecom Equip. Corp., 102 N.J. 460, 508 A.2d 1127, 1131 (1986).

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The central element of a jurisdictional due process evaluation is whether the defendant deliberately established certain minimum contacts so that the law suit does not offend any traditional notions of fair play and substantial justice. Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The jurisdictional nexus must also be the result of intentional conduct by the defendant and not merely `random, fortuitous or attenuated contacts." Amberson Holdings, 110 F.Supp.2d at 334 (internal quotation marks omitted). Nor can jurisdiction lie if the contacts are found in the mere "unilateral activity of those who claim some relationship with a nonresident defendant." Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283(1958). Rather, there must be "some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Id. Rodi v. Southern New England School of Law, 255 F.Supp.2d 346, 349 (D.N.J. 2003). When discussing personal jurisdiction, there may be either specific or general jurisdiction. Essentially, specific jurisdiction arises when the cause of action arises from a defendant's forum related activities. General jurisdiction, on the other hand, arises when a non forum defendant has a substantial connection with the forum. For the reasons set forth below, Plaintiffs fail to establish either specific or general jurisdiction as against the Moving Defendant. 1. Plaintiff Has Failed to Establish Specific Jurisdiction over Moving Defendant Specific jurisdiction exists when a defendant has "purposefully directed his activities at residents of the forum and the litigation results from alleged injuries that arise out of or relate to those activities." Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93,96 (3rd

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Cir. 2004) citing Burger King Corp. v. Rudzwicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 83 L.Ed.2d 528 (1985). A review of Plaintiffs' Complaint reveals that Plaintiff, a New Jersey resident, employed by a Pennsylvania employer, suffered injuries while working on a construction site in Delaware where the Moving Defendant is alleged to have been the general contractor. Therefore, based upon Plaintiffs' Complaint, accepting all the allegations as true for purposes of this motion only, without admitting the same, Plaintiff's claims for specific jurisdiction fail. Simply, the litigation has not arisen out of activities to which the Moving Defendant directed in New Jersey. 2. Plaintiff Has Failed to Establish General Jurisdiction over Moving Defendant

When a cause of action does not arise within the forum, the Plaintiff must prove "that the non resident defendant had "continuous and systematic" contacts with the forum so as to establish general jurisdiction." CSR Ltd. V. Federal Insurance Co., 141 F.Supp.2d 484,490 (D.N.J. 2001). In evaluating a motion to dismiss based upon the lack of personal jurisdiction, the court must accept as true, all of plaintiff's allegations. However, "plaintiff must then come forward with actual proofs which establish "with reasonable particularity" the nature and extent of the defendant's contacts with the forum state." Id. At 490, referring to Patterson v. FBI, 893 F.2d 595, 603-4 (3rd Cir. 1990). In fact, Patterson requires a Plaintiff to "sustain its burden of proof in establishing jurisdictional facts through sworn affidavits or other competent evidence." Patterson at 603-03. Plaintiffs set forth the following allegations in support of the Moving Defendant's purported `continuous and systematic' conduct:

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4.

Commonwealth Construction is licensed to do business in the State of New Jersey and in fact conducts substantial business in New Jersey. (Jurisdiction)

2.

...Commonwealth Construction does business in multiple states including but not limited to Pennsylvania, New Jersey and Maryland. (Introduction to the Parties).

See, Plaintiffs' Complaint. Plaintiffs' allegations are nothing more than bald assertions in an unsuccessful effort to bring suit in this forum. The Moving Defendant specifically denies these allegations, and, specifically denies that it is licensed to do business in New Jersey or that it conducts any business in New Jersey. Even though the burden is now shifted to Plaintiffs to come forward with proof that the Moving Defendant has substantial contacts with New Jersey the Moving Defendant refers to the Affidavit of Mr. Beau Vinton, President of Commonwealth Construction Company, Inc., attached hereto and marked Exhibit "B". As set forth in Mr. Vinton's affidavit, Commonwealth Construction Company, a Delaware Corporation, has no offices in New Jersey and has never conducted business in New Jersey. (See, Affidavit of Beau Vinton). Accordingly, unless and until Plaintiffs come forward with actual proofs to establish some `continuous and systematic' contact between the Moving Defendant and this forum, the Complaint against Commonwealth Construction Company, Inc., should be dismissed, with prejudice.1

1

Moving Defendant requests the right to supplement this Brief to address any purported continuous and systematic contacts, and/or the reasonableness of asserting this jurisdiction, should Plaintiffs provide any such proof. However, with no known proofs, the Moving Defendant can not address the sum or substance of alleged contacts at this time.

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B. In The Alternative, Plaintiffs' Complaint Must be Dismissed based upon Improper Venue (F.R.C.P. 12(b)(3)) A civil action founded only on diversity of citizenship may only be brought in: (1) A judicial district where any Defendant resides, if all Defendants reside in the same state, A judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial of property that is subject of the action is situated, or A judicial district in which any Defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.

(2)

(3)

28 U.S.C. § 1391(a). For purposes of venue, a corporate defendant is deemed to reside in any judicial district in which it is subject to personal jurisdiction when the action is commenced. 28 U.S.C.§1391 (c). For purposes of § 1332, a corporation is deemed to be a citizen of any state in which it is incorporated and of the state where it has its principal place of business. 28 U.S.C. § 1332 (c)(1). In the instant action, Plaintiffs aver that · · Plaintiffs are residents of New Jersey; The Moving Defendant has a principal place of business in Wilmington Delaware; and · the incident occurred in Delaware.

The only ties to the State of New Jersey are Plaintiffs' bald allegations that the Moving Defendant is licensed to do business in the State of New Jersey and conducts business in New Jersey. (Complaint at ¶¶4, 2, see above).

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Even assuming as true that the Moving Defendants are "licensed" to do business in New Jersey, this is insufficient to sustain venue and/or diversity of citizenship pursuant to the United States Code. Specifically, a corporation is deemed to be a citizen of the state where it is incorporated or where it has its principal place of business. As plead by Plaintiffs, the principal place of business is Wilmington, Delaware. Furthermore, for purposes for an action founded on diversity of citizenship, this may only occur where a Defendant resides, any judicial district where a substantial part of the events occurred or where a Defendant is subject to personal jurisdiction. See, 28 U.S.C. § 1391(a), above. As noted herein, the Moving Defendant is not a resident of New Jersey, the events occurred in Delaware, and, for the reasons previously set forth, Moving Defendant is not subject to personal jurisdiction in this forum. Accordingly, Plaintiffs allegations fail to meet the necessary venue requirements. Therefore, Plaintiffs' Complaint must be dismissed, as a matter of law, based upon improper venue. C. The Allegations against John Doe Defendants do not preclude this Court's granting of this Motion to Dismiss. Plaintiffs also name as defendants "John Does 1-20" for purported construction site negligence, essentially for failing to provide adequate fall protection on the construction site. (See, Count Two of the Complaint.) Plaintiffs appear to have named the 20 John Doe Defendants in abundance of caution having filed this complaint on the eve of the statute of limitations to protect claims against "any other entities who owned, managed, maintained, inspected or were otherwise responsible for the safety and/or construction at the subject property". (Complaint at Count II, ¶3). Plaintiffs further

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allege that the John Does contracted with the Moving Defendant, the general contractor on the site. A review of the dockets reveal that no service has been made upon any John Doe Defendant, nor have any summonses been issues. Therefore, the naming of the John Does does not effect this Court's determination of the Moving Defendant's Motion to Dismiss. Plaintiff is still required to sustain his burden in proving personal jurisdictions as against the moving Defendants. CONCLUSION: For all of the aforestated reasons, the Moving Defendant, Commonwealth Construction Co., Inc. a/k/a, Commonwealth Construction Company, hereby requests that Plaintiffs' Complaint be dismissed, with prejudice, as Plaintiff has conferred no personal jurisdiction, or in the alternative, has filed this action in an improper venue.

DEASEY, MAHONEY & BENDER, LTD.

/s Sheryl L. Brown JANE A. NORTH, ESQUIRE SHERYL L. BROWN, ESQUIRE 80 TANNER STREET Haddonfield, NJ 08033 T: 856-429-6331 Attorneys for Defendant, Commonwealth Construction Company, Inc.

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CERTIFICATE OF SERVICE I, SHERYL L. BROWN., ESQUIRE, hereby certify that a true and correct copy of the Defendant's Motion to Dismiss was served this date on all counsel of record in the manner indicated below: Electronic Filing: MICHAEL J. MCKENNA MCKENNA & MARCONI, ESQS. 648 LONGWOOD AVENUE STATE HIGHWAY 38 & LONGWOOD AVENUE CHERRY HILL, NJ 08002

DEASEY, MAHONEY & BENDER, LTD.

_/s Sheryl L. Brown_______________ JANE A. NORTH, ESQUIRE SHERYL L. BROWN, ESQUIRE 80 TANNER STREET Haddonfield, NJ 08033 T: 856-429-6331 Attorneys for Defendant, Commonwealth Construction Company, Inc.

March 1, 2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY MARK BEKIER and RENEE BEKIER, PLAINTIFFS, v. COMMONWEALTH CONSTRUCTION COMPANY, INC. and JOHN DOES 1-20 (fictitious names of individuals, sole Proprietors, partnerships, corporations, or any entities who owned, managed, maintained inspected and/or constructed the subject Property) jointly, severally or in the Alternative DEFENDANTS : : : : : : : : : : : : : : : CIVIL ACTION NO: 07-0541

The Honorable Noel L. Hillman

Defendant Commonwealth Construction Company Inc's Motion to Dismiss Pursuant to F.R.C.P. 12(b)(2), or in the alternative 12(b)(3).

ORDER AND NOW, this day of , 2007, upon

consideration of Defendant Commonwealth Construction Company's Motion to Dismiss, and any response thereto, it is hereby ORDERED and DECREED that Defendant's Motion is GRANTED, and, Plaintiffs' Complaint is dismissed, with prejudice.

BY THE COURT:

J.

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