Plaintiff Owens-Rieder was injured when she fell from a horse sold to her by defendants Wieland. She sued in her home state of Pennsylvania, but one defendant lived in New York and the other in Texas. She bought the horse as a result of an advertisement in a national horse magazine. There was no interstate travel before the sale was completed, it being based on telephone conversations and a videotape of the horse.
In this opinion, the United States District Court in Pennsylvania dismisses the lawsuit because the defendants activities did not constitute the minimum contacts with that state to enable jurisdiction to be acquired over the out-of-state defendants. Merely advertising in a national magazine is not enough to supply jurisdiction. The District Court transferred the lawsuit to New York where the horse was sold.
AND NOW, this 6th day of August, 2001, the motion of defendants Linda Wieland and Jacqueline Wieland to dismiss for lack of personal jurisdiction is granted. Fed.R.Civ.P. 12(b)(2). Subject matter jurisdiction is diversity. 28 U.S.C. § 1332. This action is directed to be transferred to the United States District Court for the Western District of New York. Fed.R.Civ.P. 12(b)(3); 12 U.S.C. § 1406.
This is a breach of contract action in which plaintiff Michelle Owens-Rieder is alleged to have been injured after falling off a horse sold to her and her husband by defendants. [FN1] Plaintiffs sue on theories of fraud, negligence, violations of the Unfair Trade Practices Act, 73 Pa.C.S. §§ 201- 1 et seq., and breach of covenant of good faith and fair dealing. Cmplt. at 4- 6. They are Pennsylvania citizens residing in West Chester, Pa. Id. at 1. Linda Wieland is a citizen of New York, and Jacqueline Wieland is a citizen of Texas. Linda Wieland aff. ¶ 1; Jacqueline Wieland aff. ¶ 1. Prior to the sale, the horse was stabled near Elma, which is located in the Western District of New York.
FN1. According to the complaint, prior to the sale, defendants were aware, but did not disclose to plaintiffs, that the horse had wobbler's syndrome, a condition that rendered the horse unsafe to ride. Cmplt. at 2.
As movants, defendants submitted affidavits stating, that they do not own property or conduct business activities in Pennsylvania. Linda Wieland aff. ¶¶ 3-5; Jacqueline Wieland aff. ¶¶ 3-5. The affidavit of plaintiff Randall Rieder avers that in January, 2000, he and his wife responded to an advertisement for the sale of a horse placed by defendants in The Arabian News. Rieder aff. ¶ 4. After an exchange of telephone calls, defendants mailed plaintiffs a videotape of the horse, and the parties agreed on a price of $5,500. Id. ¶ 5.
Subsequently, plaintiffs had the horse examined by a veterinarian in New York, and plaintiffs arranged to have the horse delivered to West Chester, Pa. by an interstate carrier recommended by defendants. Id. ¶ 5-8. [FN2] This course of dealing is argued by plaintiffs to be enough in the way of contacts to have established general and specific jurisdiction over defendants for the purposes of this case.
FN2. There is no evidence of interstate travel to effectuate the formation of the contract. The sale was recorded in the Arabian Horse Registry of America, Inc. as having occurred on February 15, 2000. Pltfs. mem. exh. A.
Pennsylvania's long arm statute extends jurisdiction to the fullest extent allowed by the due process clause of the Fifth Amendment of the U.S. Constitution. 42 Pa.C.S.A. § 5322(b). However, "it is well settled law in this Circuit that advertising in a national publication does not constitute the continuous and substantial contacts with the forum state required to give rise to a finding of general jurisdiction." Resnick v. Manfredy, 52 F.Supp.2d 462, 468 (E.D.Pa.1999) (citing Gehling v. St. George's School of Medicine, 773 F.2d 539, 542 (3rd Cir.1985)). Moreover, as to specific jurisdiction, the phone calls and mailing of the videotape, and the contract are not sufficient. "[I]nformational communication in furtherance of a contract between a resident and a nonresident does not establish the purposeful activity necessary for a valid assertion of personal jurisdiction over the nonresident defendant." Vetrotex Certainteed Corp. v. Consolidated Fiber Glass Prods, Co., 75 F.3d 147, 152 (3d Cir.1996) (internal quotations omitted).
If personal jurisdiction over a defendant is lacking, an action may be transferred to an appropriate court in lieu of dismissal. 28 U.S.C. § 1406; see Goldlawr, Inc. v. Heiman, 369 U.S. 463, 467, 82 S.Ct. 913, 916, 8 L.Ed.2d 39 (1962); Harrison v. L.P. Rock Corp., No. Civ. A. 99-CV-5886, 2000 WL 19257, at *4 (E.D.Pa. Jan. 7, 2000).
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