PINTO v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROSE PINTO, : CIVIL ACTION

: NO. 22-3991

Plaintiff, :

:

v. :

:

ST. PAUL FIRE & MARINE :

INS. CO., et al., :

:

Defendants. :

M E M O R A N D U M

EDUARDO C. ROBRENO, J. May 26, 2023

I. INTRODUCTION

Plaintiff, Rose Pinto, brings this action against

Defendant, St. Paul Fire and Marine Insurance Company,1 for an

alleged breach of contract. On September 19, 2022, Plaintiff

filed her complaint in the Philadelphia Court of Common Pleas.

Defendant filed a notice of removal on the basis of diversity

jurisdiction on October 6, 2022. See ECF No. 1.

Before the Court are Defendant’s Motion to Transfer or

Dismiss for Lack of Personal Jurisdiction and Motion for

1 Plaintiff’s Complaint uses the names of both St. Paul Fire and

Marine Insurance Company and a former affiliate, St. Paul

Insurance Company, Inc. The affiliate no longer exists because

it was merged into St. Paul Fire and Marine Insurance Company in

2002. Except where otherwise indicated, both companies are

referred to as Defendant herein.

Judgment on the Pleadings. See ECF Nos. 30 & 31. For the reasons

stated herein, the Court will grant Defendant’s Motion to

Transfer and deny Defendant’s Motion for Judgment on the

Pleadings as moot.

II. BACKGROUND

In 1982, Plaintiff filed suit in the United States District

Court for the District of New Jersey in an action captioned Rose

Pinto v. Robert Callahan, Case No. 82-cv-2956 (the “New Jersey

Action”), to recover for injuries she sustained in an automobile

accident in New Jersey. Defendant insured one or more of the

defendants in the New Jersey Action. The parties in the New

Jersey Action, as well as Defendant, were represented by New

Jersey counsel, who informed the court of the essential

settlement terms. Defendant’s counsel stated that, pursuant to

the settlement, Defendant “specifically does not in any way

guarantee or agree to be liable to the plaintiff for payment of

the structured benefits”; that “[p]laintiff and plaintiff’s

counsel understand that St. Paul will fund an annuity that

yields the benefits that have been described”; and that

Defendant “will have no further obligation to the plaintiff

relative to this settlement.” Plaintiff’s New Jersey counsel

raised no objection to these points.

The parties then documented the settlement in a Settlement

Agreement and Release (the “SAR”). The payment terms of the SAR

were consistent with the settlement terms that the parties had

placed on the record. The only difference was that the total

payments to be made to Plaintiff increased from $8,519,000 to

$8,794,000, and the provider of the annuity used to fund the

future payments was changed to the Executive Life Insurance

Company of New York (“ELNY”). The SAR authorized Defendant to

pay periodic payments to Plaintiff “through the purchase of a

financial vehicle including but not limited to an annuity policy

from” ELNY. The SAR also provided that Defendant “may, as a

matter of right and in its sole discretion, assign its duties

and obligations to make such future payments to First Executive

Corporation [“FEC”],” ELNY’s parent company. The SAR provided

the following regarding the assignment:

Such assignment, if made, is hereby accepted by Rose

Pinto without right of rejection and in full discharge

and release of the duties and obligations of St. Paul

Insurance Company, Inc.

The parties hereto expressly understand and agree that

if an assignment of its duties and obligations to make

such future payments is made by St. Paul Insurance

Company, Inc. to First Executive Corporation pursuant

to this agreement, all of the duties and

responsibilities otherwise imposed upon St. Paul

Insurance Company, Inc. by this agreement with respect

to such future payments shall instead by binding solely

upon First Executive Corporation.

The SAR states that it was executed August 3, 1984. Plaintiff’s

signature was notarized that date in Pennsylvania. Defendant’s

signature was notarized September 13, 1984 in New Jersey.

On July 24, 1984, one week before Plaintiff signed the SAR,

Defendant signed an ELNY Application for an Immediate Annuity

(the “Annuity Application”) to fund the settlement payments

specified in the SAR, beginning with a monthly payment due in

August 1984. The Annuity Application, which was signed by

Defendant in New Jersey, listed Plaintiff as the sole Annuitant

and Payee and included a “Schedule of Payments” matching the

agreed schedule of future periodic payments set out in the SAR.

The “single premium” charged for the ELNY Annuity was

$495,968.38. Defendant made that payment, and ELNY issued an

annuity (the “ELNY Annuity”) to fund the future payments under

the SAR with a July 26, 1984 “Date of Issue.”

Also before the SAR was signed, Defendant and FEC signed an

Assignment dated July 27, 1984 (the “Qualified Assignment”).

Under the Qualified Assignment, Defendant, as “Assignor”

assigned to FEC, and FEC as “Assignee” assumed Defendant’s

“liability . . . to make periodic payments in the amounts and at

the times set forth in the Schedule of Payments attached as Ex.

A to Payee . . . as damages on account of personal injury or

sickness.” The Qualified Assignment stated that it was “intended

to constitute a qualified assignment within the meaning of

Section 130(c) of the Internal Revenue Code.” Also on July 27,

1984, in New Jersey, Defendant executed an Absolute Assignment

transferring ownership of the ELNY Annuity to FEC (the “Absolute

Assignment”). Defendant paid the $1,000 fee for the assignment,

referencing its New Jersey “Adjusting Office.”

Plaintiff acknowledges that “[a]ll payments due to Ms.

Pinto under [the SAR] were paid as contracted through July

2013[.]” Those payments included the $204,000 lump sum payment

“to be paid on or before August 31, 1984[,]” which was not among

the periodic lump sum payments and monthly payments to be made

under the ELNY Annuity. However, during the September 13, 1984

hearing in the New Jersey Action, Plaintiff’s New Jersey counsel

informed the court that “this initial cash payment was provided”

to cover his attorney’s fees and expenses totaling $193,132.68.

It appears that this initial lump sum payment was delivered to

Plaintiff’s New Jersey counsel. For the next twenty-nine (29)

years, until 2013, all payments under the SAR were paid directly

to Plaintiff by ELNY under the ELNY Annuity.

In April 1991, ELNY was placed in rehabilitation at the

request of the New York Superintendent of Insurance (the

“Superintendent”). In September 2011, the Superintendent

petitioned the Receivership Court to convert the ELNY

rehabilitation to a liquidation and to approve an Agreement of

Restructuring in Connection with the Liquidation of ELNY (the

“ELNY Restructuring Agreement”), under which benefits less than

approximately twenty percent (20%) of the ELNY annuities (the

“Shortfall Annuities”) would have to be reduced. See In re Exec.

Life Ins. Co., 959 N.Y.S.2d 513, 514 (N.Y. App. Div. 2013). The

ELNY Annuity issued to fund payments under the SAR was one of

the Shortfall Annuities. On or about December 7, 2011, the

Superintendent (through the New York Liquidation Bureau) sent to

the payee under each Shortfall Annuity a letter (the “Benefit

Reduction Notice”) notifying the payee of the pending

liquidation and summarizing the ELNY Restructuring Agreement,

including the anticipated annuity benefit reductions. Each

Benefit Reduction Notice was accompanied by an individual

“Statement of Estimated Financial Impact” indicating the amount

of the estimated reduction of the payee’s benefits. Plaintiff

received a Benefit Reduction Notice and a Statement of Estimated

Financial Impact in December 2011.

In April 2012, the Receivership Court entered an Order of

Liquidation and Approval of the ELNY Restructuring agreement.

Following unsuccessful appeals by objecting annuity payees, ELNY

was liquidated and the ELNY Restructuring Agreement was

implemented, effective August 13, 2013 (the “ELNY Liquidation

Date”). See In re Exec. Life Ins. Co., 959 N.Y.S.2d at 514.

Since August 2013, Plaintiff’s ELNY Annuity benefits have been

reduced to approximately 55.26%.

On November 5, 2021, Plaintiff brought suit against

Defendant in the New Jersey District Court in an action styled

Pinto v. St. Paul Fire & Marine Ins. Co., No. 2:21-cv-19733-SRC-

MAH (the “New Jersey SAR Action”). Plaintiff’s complaint in the

New Jersey SAR Action made similar allegations “for breach of

contract arising under the laws of New Jersey” and sought the

same relief that Plaintiff seeks here, based on Defendant’s

alleged breach of the SAR. On January 19, 2022, Defendant moved

to dismiss the New Jersey SAR Action on the grounds that it was

barred by the statute of limitations and by the release and

discharge provision of the SAR. On January 28, 2022, Plaintiff

voluntarily dismissed the New Jersey SAR Action without

prejudice. On September 19, 2022, Plaintiff refiled in the

Eastern District of Pennsylvania. The Court held a hearing on

May 23, 2023 to consider Defendant’s Motion to Transfer or

Dismiss for Lack of Personal Jurisdiction and Motion for

Judgment on the Pleadings.

III. LEGAL STANDARD

Under Fed. R. Civ. P. 12(h)(1), a defendant bears the

burden of raising lack of personal jurisdiction as it is a

waivable defense. Fed. R. Civ. P. 12(h)(1). Once the defense has

been raised, the burden then shifts to the plaintiff to prove

that jurisdiction exists. See Metcalfe v. Renaissance Marine,

Inc., 566 F.3d 324, 330 (3d Cir. 2009).

A district court deciding a challenge to its jurisdiction

over a defendant has discretion to either hold an evidentiary

hearing on the motion or to decide it based on the parties'

submissions. Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 97

(3d Cir. 2004) (considering a district court's ruling on a

12(b)(2) motion without holding an evidentiary hearing); Doe v.

Hesketh, 15 F. Supp. 3d 586, 591 (E.D. Pa. 2014) (quoting

Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure § 1351 (3d ed. 2013) (“A district court considering a

challenge to its jurisdiction over a defendant has ‘considerable

leeway in choosing a methodology for deciding the motion.’”)).

“To survive a motion to dismiss for lack of personal

jurisdiction, a plaintiff bears the burden of establishing the

court’s jurisdiction over the moving defendants . . . . [W]hen

the court does not hold an evidentiary hearing on the motion to

dismiss, the plaintiff need only establish a prima facie case of

personal jurisdiction and . . . is entitled to have its

allegations taken as true and all factual disputes drawn in its

favor.” Id. at 97 (citations omitted). While the Court held a

hearing in this case, it was non-evidentiary and thus, the Court

requires only a prima facie showing of jurisdiction to defeat

the motion.

A defendant’s contacts with a forum must be sufficient to

create either general or specific jurisdiction. O’Connor v.

Sandy Lane Hotel Co., 496 F.3d 312, 317 (3d Cir. 2007). General

jurisdiction requires that a defendant’s “affiliations with the

State [be] ‘so continuous and systematic’ as to render [it]

essentially at home in the forum state.” Daimler AG v. Bauman,

571 U.S. 117, 127 (2014) (quoting Goodyear Dunlop Tires

Operations, S.A. v. Brown, 564 U.S. 915, 923 (2011)). “The

‘paradigm’ forums in which a corporate defendant is ‘at home’ .

. . are the corporation’s place of incorporation and its

principal place of business.” BNSF Ry. Co. v. Tyrrell, 581 U.S.

402, 413 (2017) (citations omitted). To establish specific

jurisdiction, a plaintiff must demonstrate the following: (1)

that a defendant has “purposefully directed [its] activities’ at

the forum”; (2) that the claim “‘arise[s] out of or relate[s]

to’ at least one of those activities”; and (3) that the exercise

of jurisdiction “comport[s] with ‘fair play and substantial

justice.’” O’Connor, 496 F.3d at 317 (citations omitted).

IV. DISCUSSION

Defendant moves to transfer this action to the forum where

Plaintiff first brought suit--the District of New Jersey--or

alternatively, to dismiss this action, arguing that the Court

lacks personal jurisdiction over Defendant.2

2 Plaintiff argues that Defendant waived its objection to

personal jurisdiction. Under Federal Rule of Civil Procedure

12(h)(1)(B), a party preserves the defense of lack of personal

jurisdiction by “include[ing] it in a responsive pleading.” Fed.

R. Civ. P. 12(h)(1)(B). “A defendant may raise a personal

jurisdiction defense simply by denying the plaintiff’s

averments.” Baby Merlin Co. v. CribCulture, LLC, No. 18-cv-3288,

2018 WL 11225243, at *1 n.1 (E.D. Pa. Dec. 17, 2018) (Robreno,

J.) (citing Saunders v. N. Am. Van Lines, Inc., No. CIV. A. 90-

2019, 1990 WL 72941, at *1 (E.D. Pa. May 23, 1990)). Paragraph 6

It is clear that the Court lacks general jurisdiction over

Defendant because Defendant is organized under the laws of

Connecticut with its principal place of business in Connecticut.

The issue is whether the Court can exercise specific

jurisdiction in this case. As noted above, “when the court does

of Plaintiff’s Complaint made allegations regarding Defendant’s

issuance of insurance policies in Pennsylvania, and then alleged

that “Defendants are subject to the jurisdiction . . . of this

Court and the venue is proper here.” In response, Paragraph 6 of

Defendant’s original answer admitted in part Plaintiff’s

allegations about its sale of insurance policies in

Pennsylvania, but stated as to Plaintiff’s allegations of

personal jurisdiction and venue: “The remainder of paragraph 6

sets forth legal conclusions and characterizations to which no

response is required. To the extent a response is nonetheless

deemed required, [Defendant] denies those allegations.”

Plaintiff argues that this denial was ambiguous, however,

Paragraph 6 of Defendant’s original answer parsed the

allegations in Paragraph 6 of Plaintiff’s complaint, admitting

in part the factual allegations while denying the allegations of

personal jurisdiction and venue, consistent with basic pleading

rules. See Fed. R. Civ. P. 8(b)(4). This denial was sufficient

to preserve the defense.

Plaintiff also contends that Defendant waived the defense by

seeking affirmative relief by counterclaim. However, it is well-

established that including a counterclaim in the answer does not

waive a personal jurisdiction defense. Neifeld v. Steinberg, 438

F.2d 423, 427-28 (3d Cir. 1971). This applies to both permissive

and compulsory counterclaims, but it even more clearly holds

where, as here, the counterclaim is compulsory because it

“arises out of the transaction or occurrence that is the subject

matter of the opposing party’s claim.” Fed. R. Civ. P.

13(a)(1)(A); Neifeld, 438 F.2d at 427-28. Moreover, Plaintiff’s

argument also ignores the amendments to Defendant’s

counterclaims, which expressly state that they are made “subject

to and without waiver of . . . its denial of personal

jurisdiction.” See Am. Answer 9, 20; ECF No. 12. When the Court

granted Plaintiff an opportunity to move to strike the Amended

Counterclaim, Plaintiff denied the invitation and expressly

“consented” to the filing. ECF No. 21.

not hold an evidentiary hearing on the motion to dismiss, the

plaintiff need only establish a prima facie case of personal

jurisdiction and . . . is entitled to have its allegations taken

as true and all factual disputes drawn in its favor.” Miller

Yacht Sales, Inc., 384 F.3d at 97 (citations omitted).

First, Defendant argues that it lacks minimum contacts with

Pennsylvania in this action. For Plaintiff to establish that

Defendant purposefully directed its activities towards

Pennsylvania, “[t]here 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.’” Vetrotex Certainteed Corp. v.

Consolidated Fiber Glass Prods. Co., 75 F.3d 147, 150 (3d Cir.

1996) (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)). In

the Complaint, Plaintiff notes that Defendant entered into the

SAR with a resident of Pennsylvania. Compl. ¶ 8. “It is well

established, however, that a nonresident’s contracting with a

forum resident, without more, is insufficient to establish the

requisite ‘minimum contacts’ required for an exercise of

personal jurisdiction over the nonresident.” Sunbelt Corp. v.

Noble, Denton & Assocs., Inc., 5 F.3d 28, 32 (3d Cir. 1993).

When determining whether the Court has specific jurisdiction

over contract claims, the Court considers “the totality of the

circumstances, including the location and character of the

contract negotiations, the terms of the contract, and the

parties’ actual course of dealing.” Remick v. Manfredy, 238 F.3d

248, 256 (3d Cir. 2001).

Here, the negotiations and other events giving rise to the

SAR took place in New Jersey and were undertaken to resolve a

lawsuit filed by Plaintiff in New Jersey arising from an

automobile accident in New Jersey. The parties in the New Jersey

Action, as well as Defendant here, were each represented by New

Jersey counsel in settlement negotiations. The operative terms

of the SAR do not reference Pennsylvania, and they impose no

express obligation on either party to perform in Pennsylvania.

Plaintiff does not claim that Defendant undertook any activity

in Pennsylvania during the course of its performance under the

SAR--from June 22, 1984, when the settlement was placed on the

record in the New Jersey Action, to September 13, 1984, when

Defendant signed the SAR.3

The Third Circuit has found that a plaintiff’s

jurisdictional arguments “are not persuasive” where the

nonresident defendant bank “concluded its negotiations with a

3 During that period, Defendant submitted the ELNY Annuity

Application and paid the Annuity premium to an agent in New

Jersey. Defendant also signed the Qualified and Absolute

Assignments to FEC in New Jersey and submitted them to a New

Jersey agent. The initial lump sum settlement payment under the

SAR appears to have been delivered by Defendant to Plaintiff’s

New Jersey counsel.

New York law firm, delivered security interests to a New York

trustee, and had on direct dealings with [the resident

plaintiff] other than wire transfers of payments.” Dollar Sav.

Bank v. First Sec. Bank of Utah, N.A., 746 F.2d 208, 214 (3d

Cir. 1984). The Third Circuit noted that “[t]hese circumstances

created no expectation of submission to the jurisdiction of

Pennsylvania courts” and “do not constitute purposeful availing

of the privilege of conducting activity within the forum state.”

Id.; see also Elias v. Energy Reduction Sys., Inc., No. 92-cv-

4971, 1993 WL 55932, at *4 (E.D. Pa. Mar. 2, 1993) (“the fact

that payments were made, or would be made, to plaintiff in

Pennsylvania [is not] a sufficient jurisdictional nexus”);

Radian Guar. Inc. v. Beltway Cap., LLC, No. 10-cv-7549, 2012 WL

13035111, at *1 n.1 (E.D. Pa. Jan. 26, 2012) (“making premium

and renewal payments to [the forum plaintiff]. . . , standing

alone, . . . do[es] not rise to the level of the purposeful

minimum contacts required for personal jurisdiction.”); Dawes-

Lloyd v. Weisbrot, No. 09-cv-2388, 2010 WL 3463293, at *3 (E.D.

Pa. Aug. 31, 2010) (“Payment between contracting parties, and

telephone calls placed or mail sent to the forum state by a

party to the formation of a contract do not suffice to establish

minimum contacts.”); ANR, Inc. v. Rothner, No. CIV.A. 06-2872,

2007 WL 712539, at *3-4 (E.D. Pa. Mar. 6, 2007) (“the fact that

the Defendants have made payments on the Promissory Note to the

Plaintiff at its Pennsylvania address and periodically phoned

the Plaintiff are insufficient to establish minimum contacts and

support a finding of personal jurisdiction”). Plaintiff has not

established that any of Defendant’s actions relating to the SAR

“purposefully avail[ed] itself of the privilege of conducting

activities within” Pennsylvania. Vetrotex, 75 F.3d at 150.

Plaintiff relies on the theory that the “payments that

[Defendant] obligated itself to make in the [SAR] were to be

paid to [Plaintiff] at her home in Pennsylvania.” However, the

SAR required that payments be made to Plaintiff regardless of

where she resided, making the payment in Pennsylvania purely

fortuitous. And regardless, Plaintiff now receives payments by

direct deposit in a bank account rather than at her Pennsylvania

address.

In short, as the Supreme Court has taught--the “minimum

contacts” inquiry is not satisfied by pointing to contacts

between the plaintiff (or third parties) and the forum State, as

Plaintiff attempts to do here. Walden v. Fiore, 571 U.S. 277,

284 (2014) (citation omitted).

Second, Plaintiff’s claim does not “arise out of or relate

to” Defendant’s purposefully targeted activities in

Pennsylvania. O’Connor, 496 F.3d at 318 (citation omitted).

Although Defendant is licensed to conduct insurance business in

Pennsylvania and has issued many policies in Pennsylvania,

Compl. ¶ 6, Plaintiff’s claim does not arise from Defendant’s

sale of insurance in the state. Instead, as Plaintiff states,

the only one of Defendant’s insurance policies involved in this

matter is “the underlying liability coverage” issued to the

defendants in the New Jersey Action who were found liable for

causing Plaintiff’s injuries there. Id. ¶ 8.

The other alleged activity in Pennsylvania which Plaintiff

attempts to base its claim to specific personal jurisdiction--

delivery of payments under the SAR to Plaintiff “at her home in

Pennsylvania,” id. at ¶ 14--is insufficient to establish minimum

contacts in that, as discussed above, they are contacts between

the plaintiff and the forum and not between the defendants and

the forum.4

Plaintiff argues that she can establish specific

jurisdiction based on the Supreme Court’s decision in Ford Motor

Co. v. Montana Eighth Judicial District Court, 141 S.Ct. 1017

(2021).5 In Ford, Montana and Minnesota residents brought product

4 In any event, as Plaintiff’s allegations show, the reduced

payments on which Plaintiff bases her claim were made by ELNY

(or its successor, Guaranty Association Benefits Company), not

by Defendant. Id. at ¶¶ 14, 15, 19, 20.

5 During the non-evidentiary hearing, Plaintiff’s counsel

presented the Court with additional cases in support of

Plaintiff’s argument. The Court allowed defense counsel to

submit a letter reply addressing the cases. Upon examination,

the Court concludes that the additional authorities do not

support Plaintiff’s argument as follows.

liability suits against Ford in their respective states based on

injuries they suffered as a result of car accidents in those

states involving vehicles manufactured by Ford. Each state’s

supreme court upheld specific jurisdiction over the company,

finding that Ford had purposefully created a “market” for its

vehicles in the state by advertising, establishing dealerships,

and selling vehicles and parts in the state, thereby encouraging

state residents to “purchase and drive more Ford vehicles,”

including the same types of vehicles involved in the plaintiffs’

accidents. The Supreme Court affirmed, endorsing the state

supreme courts’ conclusions that “Ford urges Montanans and

Minnesotans to buy its vehicles” and “to become lifelong Ford

In Martinez v. Union Office Meccaniche S.P.A., No. 22-1364, 2023

WL 3336644 (3d Cir. May 10, 2023), the Third Circuit affirmed a

denial of exercise of personal jurisdiction where, as here, the

defendant’s Pennsylvania contacts lacked a “strong relationship”

to the plaintiff’s claims. Id. at *2.

Mold Medics LLC v. All Am. Restoration Corp., No. 21-cv-1851,

2022 WL 3999886 (W.D. Pa. Sept. 1, 2022) is distinguishable

because the trademark infringement claim arose from defendants’

communication to Pennsylvania residents using the plaintiff’s

trademark and therefore “deliberate[ly] target[ed]” the forum.

Id. at *6-10 (citation omitted).

Yerkes v. Weiss, No. CV 17-2493, 2022 WL 1229933 (D.N.J. Apr.

26, 2022) addresses choice of law, not personal jurisdiction.

In Travelers Cas. & Sur. Co. v. Copeland Corp. LLC, No. 22-cv-

725, 2022 WL 18831493 (W.D. Pa. Nov. 30, 2022), the court held

that, although the insurance policies at issue were issued in

Pennsylvania to the defendant’s parent company, that alone did

not provide a sufficient basis for exercising personal

jurisdiction over the defendant. Id. at *13-14.

drivers.” Id. at 1028. Applying the requirement of specific

jurisdiction “that the suit ‘arise out of or relate to the

defendant’s contacts with the forum,’” the Court explained: “In

other words, Ford has systematically served a market in Montana

and Minnesota for the very vehicles that the plaintiffs allege

malfunctioned and injured them in those States. So there is a

strong ‘relationship among the defendant, the forum, and the

litigation’--the essential foundation of specific jurisdiction.”

Id. at 1028 (citation omitted).

Here, the “strong relationship” is lacking. Plaintiff does

not explain how Defendant’s conduct of insurance business in

Pennsylvania relates to her claim--the only “connection”

Plaintiff identifies between this case and Pennsylvania is the

parties’ conduct in relation to the SAR. Simply put, Plaintiff’s

New Jersey car accident, her New Jersey Action, and the

resulting settlement in a New Jersey court do not relate to any

insurance policy issued by Defendant in Pennsylvania.

Third, Plaintiff does not establish that “the assertion of

personal jurisdiction would comport with fair play and

substantial justice.” BP Chems. Ltd. v. Formosa Chem. & Fibre

Corp., 229 F.3d 254, 260 (3d Cir. 2000) (quotation omitted).

When evaluating this factor, the Court must consider: (1) the

burden on Defendant; (2) the forum State’s interest in

adjudicating the dispute; (3) Plaintiff’s interest in obtaining

convenient and effective relief; (4) the interstate judicial

system’s interest in obtaining the most efficient resolution of

controversies; and (5) the shared interest of the several States

in furthering fundamental substantive social policies.” Pennzoil

Prod. Co. v. Colelli & Assocs., Inc., 149 F.3d 197, 205-06 (3d

Cir. 1998). Here, each of these factors point toward New Jersey

rather than Pennsylvania as the appropriate forum for resolving

this matter.

Where a court does not have personal jurisdiction over a

defendant, “the court shall, if it is in the interest of

justice, transfer such action . . . to any other such court in

which the action . . . could have been brought at the time it

was filed.” 28 U.S.C. § 1631; D’Jamoos ex rel. Estate of

Weingeroff v. Pilatus Aircraft Ltd., 566 F.3d 94, 106-07 (3d

Cir. 2009). This action could have been brought in New Jersey,

(in fact it once was,) and it is in the interest of justice to

transfer the action there. And so it will be ordered.

Finally, given the lack of personal jurisdiction over

Defendant, Defendant’s Motion for Judgment on the Pleadings will

be denied as moot.

V. CONCLUSION

For the reasons set forth above, this action will be

transferred to the District of New Jersey. Defendant’s motion

for judgment on the pleadings will be denied as moot. Finally,

the motion for leave to file a reply brief will be granted.

An appropriate order follows.