# Allen v. Foxway Transportation, Inc.

> District Court, M.D. Pennsylvania · January 27, 2022

URL: https://www.frixlaw.com/law-library/cases/10411263

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** January 27, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10411263

## How later opinions describe it (automated extraction)

- holding that Montana court did not have general jurisdiction even though defendant-corporation had “over 2,000 miles of railroad track and more than 2,000 employees in Montana”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ROBERT C. ALLEN, as No. 4:21-CV-00156
Co-Administrator of the Estates of
T.G.A. and Z.D.A., (Chief Judge Brann)

Plaintiff,

v.

FOXWAY TRANSPORTATION,
INC., et al.,

Defendants.

MEMORANDUM OPINION

JANUARY 27, 2022
I. BACKGROUND
On April 22, 2021, Plaintiff Robert C. Allen filed a twelve-count Amended
Complaint as co-administrator of his minor children’s estates. The case is predicated
on this Court’s diversity jurisdiction and brought under state law. Defendants
include Foxway Transportation, Inc., Gateway Freight Systems, Inc., Tempel Steel,
and State Farm Mutual Automobile Insurance Company.
Pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(3), Foxway
moved to dismiss and, alternatively, to transfer venue. Gateway also moved to
dismiss pursuant to Federal Rules of Civil Procedure 12(b)(2), 12(b)(3), and
12(b)(6). These motions are now ripe for disposition; for the reasons that follow,
they are denied. Foxway and Gateway are ordered to file answers.
II. LEGAL STANDARDS
A. Rule 12(b)(2)

Federal Rule of Civil Procedure 12(b)(2) allows a defendant to dismiss a case
for lack of personal jurisdiction. “When a defendant challenges the court’s personal
jurisdiction, the plaintiff bears the burden ‘to come forward with sufficient facts to
establish that jurisdiction is proper.’”1 Accordingly, once the defense is raised, a

plaintiff must establish “jurisdictional facts through sworn affidavits or other
competent evidence.”2 And “at no point may a plaintiff rely on the bare pleadings
alone in order to withstand a defendant’s Rule 12(b)(2) motion” to dismiss.3

The plaintiff’s burden to establish personal jurisdiction is reduced, however,
where a district court, when presented with a motion to dismiss under Rule 12(b)(2),
does not hold an evidentiary hearing. In such circumstances, the plaintiff “need only
establish a prima facie case of personal jurisdiction.”4 Moreover, before an

evidentiary hearing, “[i]t is well established that in deciding a motion to dismiss for
lack of jurisdiction, a court is required to accept the plaintiff’s allegations as true,
and is to construe disputed facts in favor of the plaintiff.”5

1 Danziger & De Llano, LLP v. Morgan Verkamp LLC, 948 F.3d 124, 129 (3d Cir. 2020)
(quoting Mellon Bank (E.) PSFS, Nat’l Ass’n v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992)).
2 Clarity Sports Int’l LLC v. Redland Sports, 400 F. Supp. 3d 161, 169 (M.D. Pa. 2019) (internal
quotation marks omitted) (quoting Time Share Vacation Club v. Atl. Resorts, 735 F.2d 61, 66
n.9 (3d Cir. 1984)).
3 Patterson by Patterson v. F.B.I., 893 F.2d 595, 604 (3d Cir. 1990) (citation omitted).
4 Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 97 (3d Cir. 2004).
5 Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324, 330 (3d Cir. 2009) (alteration in original)
B. Rule 12(b)(3)
Federal Rule of Civil Procedure 12(b)(3) allows a party to assert the defense

of improper venue. “[A] motion to dismiss for improper venue is not an attack on
jurisdiction but only an affirmative dilatory defense.”6 “It logically follows therefore
that on a motion for dismissal for improper venue under Rule 12 the movant has the
burden of proving the affirmative defense asserted by it.”7

“The parties may submit affidavits in support of their positions, and may
stipulate as to certain facts, but the plaintiff is entitled to rely on the allegations of
the complaint absent evidentiary challenge.”8 “Whatever the nature of the parties’

submissions, the court is bound to view the facts in the light most favorable to the
plaintiff.”9
C. Rule 12(b)(6)
Under Federal Rule of Civil Procedure 12(b)(6), the Court dismisses a

complaint, in whole or in part, if the plaintiff has failed to “state a claim upon which
relief can be granted.” A motion to dismiss “tests the legal sufficiency of a claim”10
and “streamlines litigation by dispensing with needless discovery and factfinding.”11

“Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive

6 Myers v. Am. Dental Ass’n, 695 F.2d 716, 724 (3d Cir. 1982).
7 Id.
8 Heft v. AAI Corp., 355 F. Supp. 2d 757, 762 (M.D. Pa. 2005).
9 Id.
10 Richardson v. Bledsoe, 829 F.3d 273, 289 n.13 (3d Cir. 2016) (Smith, C.J.) (citing Szabo v.
Bridgeport Machs., Inc., 249 F.3d 672, 675 (7th Cir. 2001) (Easterbrook, J.)).
issue of law.”12 This is true of any claim, “without regard to whether it is based on
an outlandish legal theory or on a close but ultimately unavailing one.”13

Following the Roberts Court’s “civil procedure revival,”14 the landmark
decisions of Bell Atlantic Corporation v. Twombly15 and Ashcroft v. Iqbal16 tightened
the standard that district courts must apply to 12(b)(6) motions.17 These cases

“retired” the lenient “no-set-of-facts test” outlined in Conley v. Gibson and replaced
it with a more exacting “plausibility” standard.18
Accordingly, after Twombly and Iqbal, “[t]o survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’”19 “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”20 “Although the plausibility

standard does not impose a probability requirement, it does require a pleading to
show more than a sheer possibility that a defendant has acted unlawfully.”21

12 Id. at 326 (citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).
13 Id. at 327.
14 Howard M. Wasserman, The Roberts Court and the Civil Procedure Revival, 31 Rev. Litig.
313 (2012).
15 550 U.S. 544 (2007).
16 556 U.S. 662 (2009).
17 Id. at 670.
18 Id.
19 Id. at 678 (quoting Twombly, 550 U.S. at 570).
20 Id.
Moreover, “[a]sking for plausible grounds . . . calls for enough facts to raise a
reasonable expectation that discovery will reveal evidence of [wrongdoing].”22

The plausibility determination is “a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.”23 No matter
the context, however, “[w]here a complaint pleads facts that are merely consistent

with a defendant’s liability, it stops short of the line between possibility and
plausibility of entitlement to relief.”24
When disposing of a motion to dismiss, the Court “accept[s] as true all factual
allegations in the complaint and draw[s] all inferences from the facts alleged in the

light most favorable to [the plaintiff].”25 However, “the tenet that a court must accept
as true all of the allegations contained in a complaint is inapplicable to legal
conclusions.”26 “Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.”27

As a matter of procedure, the United States Court of Appeals for the Third
Circuit has instructed that:
Under the pleading regime established by Twombly and Iqbal, a court
reviewing the sufficiency of a complaint must take three steps. First, it
must tak[e] note of the elements [the] plaintiff must plead to state a

22 Twombly, 550 U.S. at 556.
23 Iqbal, 556 U.S. at 679.
24 Id. at 678 (quoting Twombly, 550 U.S. at 557 (internal quotation marks omitted)).
25 Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008) (Nygaard, J.).
26 Iqbal, 556 U.S. at 678 (internal citations omitted).
27 Id. See also Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (Nygaard, J.)
(“After Iqbal, it is clear that conclusory or ‘bare-bones’ allegations will no longer survive a
claim. Second, it should identify allegations that, because they are no
more than conclusions, are not entitled to the assumption of truth.
Finally, [w]hen there are well-pleaded factual allegations, [the] court
should assume their veracity and then determine whether they plausibly
give rise to an entitlement to relief.28
When deciding a motion to dismiss, a Court generally considers only the
allegations in the complaint, exhibits attached thereto, and facts of public record.29
Normally, to consider anything beyond those sources, a motion to dismiss must be
converted to a motion for summary judgment.30 But consideration of materials
outside the complaint is not completely barred on a 12(b)(6) motion. A Court may
consider any documents that are integral or explicitly relied upon in the complaint.31

“However, before materials outside the record may become the basis for a dismissal,
several conditions must be met.”32 “For example, even if a document is ‘integral’ to
the complaint, it must be clear on the record that no dispute exists regarding the
authenticity or accuracy of the document.”33 It must also be clear that there exist no

material disputed issues of fact regarding the relevance of the document.34 In this
matter, I find that these conditions have been met, and will consequently consider
the parties’ attachments.

28 Connelly, 809 F.3d at 787 (internal quotation marks and citations omitted).
29 Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010).
30 See Fed. R. Civ. P. 12(d).
31 Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014).
32 Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006).
33 Id.; see also Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004); Alternative Energy, Inc. v.
St. Paul Fire and Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001).
III. FACTS ALLEGED IN THE AMENDED COMPLAINT
Plaintiff Robert C. Allen lives in Owego, New York.35 On October 20, 2019,

Allen’s ex-wife Darlene Allen was driving from his New York home to her home in
Bradford County, Pennsylvania.36 Allen’s minor children, T.G.A. and Z.D.A,
accompanied her.37

As Ms. Allen headed towards Pennsylvania, a deer abruptly dashed out in
front of her car.38 So Ms. Allen slowed her car, coming to a stop.39 But Volodymyr
Frolyak rear-ended Ms. Allen’s vehicle with a tractor-trailer, killing both children.40
Though the accident occurred in New York, this tractor-trailer was destined

for Pennsylvania.41 Canadian corporations Foxway and Gateway had agreed to haul
this freight to Pennsylvania for Tempel Steel, an Illinois corporation.42
At their times of death, both children lived in Pennsylvania.43 Indeed, both
were born, raised, and ultimately buried in Pennsylvania.44 Their respective estates

were also opened in Bradford County, Pennsylvania.45 As administrator of his
children’s estates, Allen sued.46

35 Doc. 17 at ¶ 1.
36 Id. at ¶¶ 46–48.
37 Id. at ¶ 48.
38 Id. at ¶ 49.
39 Id. at ¶¶ 50–52.
40 Id. at ¶¶ 53–56.
41 Doc. 44, Ex. A.
42 Doc. 17 at ¶¶ 10, 13–14, 33, 80.
43 Id. at ¶¶ 3–4.
44 Id. at ¶¶ 5–6.
45 Id. at ¶ 7.
IV. DISCUSSION
A. Personal Jurisdiction

First, Foxway and Gateway argue that this Court lacks personal jurisdiction
over them. “A federal district court may assert personal jurisdiction over a
nonresident of the state in which the court sits to the extent authorized by the law of
that state.”47 Pennsylvania’s long-arm statute allows courts to exercise personal

jurisdiction over non-residents “to the fullest extent allowed under the Constitution
of the United States.”48 The proper question before the Court is therefore whether
exercising jurisdiction over the parties would comply with the constitutional

requirements of due process.
To satisfy due process, a court must establish that a defendant has sufficient
“minimum contacts” with the state in which the court sits “such that maintenance of
the suit does not offend traditional notions of fair play and substantial justice.”49

“Minimum contacts can be analyzed in the context of general jurisdiction or specific
jurisdiction.”50 I conclude that this Court lacks general jurisdiction but has specific
jurisdiction over Foxway and Gateway.

47 D’Jamoos ex rel. Estate of Weingeroff v. Pilatus Aircraft Ltd., 566 F.3d 94, 102 (3d Cir. 2009)
(internal quotation marks omitted) (quoting Provident Nat’l Bank v. Cal. Fed. Sav. & Loan
Ass’n, 819 F.2d 434, 436 (3d Cir. 1987)).
48 42 Pa. C.S.A. § 5322(b).
49 Baker v. LivaNova PLC, 210 F. Supp. 3d 642, 647 (M.D. Pa. 2016) (Jones, J.) (internal
quotation marks omitted) (quoting Int’l Shoe Co. v. State of Washington, 326 U.S. 310, 316
(1945)).
1. General Jurisdiction
“A court may assert general jurisdiction over foreign (sister-state or foreign-

country) corporations to hear any and all claims against them when their affiliations
with the State are so ‘continuous and systematic’ as to render them essentially at
home in the forum State.”51 “The paradigm all-purpose forums for general

jurisdiction are a corporation’s place of incorporation and principal place of
business.”52 But “in an exceptional case,” “a corporation’s operations in a forum
other than its formal place of incorporation or principal place of business may be so
substantial and of such a nature as to render the corporation at home in that State.”53

Indeed, “it is ‘incredibly difficult to establish general jurisdiction [over a
corporation] in a forum other than the place of incorporation or principal place of
business.’”54

Here, this Court does not have general jurisdiction over Foxway or Gateway.
Neither Defendant is incorporated in Pennsylvania.55 And neither Defendant has an
office, much less its principal place of business, in Pennsylvania.56 These paradigm

51 Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (citation
omitted).
52 Daimler AG v. Bauman, 571 U.S. 117, 118 (2014).
53 Id. n.19.
54 Chavez v. Dole Food Co., Inc., 836 F.3d 205, 223 (3d Cir. 2016) (quoting Monkton Ins. Servs.,
Ltd. v. Ritter, 768 F.3d 429, 432 (5th Cir. 2014)).
55 Doc. 17 at ¶¶ 10, 14.
bases for general jurisdiction indicate that Foxway and Gateway are not at home in
Pennsylvania.

Allen counters that Foxway’s and Gateway’s affiliations with Pennsylvania
are so “continuous and systematic” as to render them essentially at home in
Pennsylvania. Specifically, Allen claims that Foxway frequently hauled freight into
and out of Pennsylvania.57 Allen also claims that Gateway brokered an average of

three loads of freight into and out of Pennsylvania daily.58
In other words, Allen points to Foxway’s and Gateway’s business activities in
Pennsylvania. “But in-state business . . . does not suffice to permit the assertion of

general jurisdiction.”59 “General jurisdiction instead calls for an appraisal of a
corporation’s activities in their entirety, nationwide and worldwide.”60 In this light,
Foxway’s and Gateway’s activities in Pennsylvania are not “so substantial and of
such a nature as to render” them at home in Pennsylvania.61

Allen further counters that Foxway’s designation of a registered agent
supports this Court’s exercise of general jurisdiction.62 To obtain operating authority
from the Federal Motor Carrier Safety Administration (“FMCSA”), Foxway

57 Doc. 27 at 13.
58 Doc. 44 at 11–12.
59 BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549, 1559 (2017) (holding that Montana court did not
have general jurisdiction even though defendant-corporation had “over 2,000 miles of railroad
track and more than 2,000 employees in Montana”).
60 Daimler, 571 U.S. at 139, n.20.
61 Id. n.19.
designated an agent to receive process in all fifty states, including Pennsylvania.63
But federal district courts have repeatedly “rejected the argument that designation of

an agent under the Motor Carrier Act alone implies consent to personal
jurisdiction.”64 So Foxway’s designating an agent to comply with federal
requirements does not adequately demonstrate general jurisdiction. In sum, this

Court cannot exercise general jurisdiction over Foxway or Gateway.
2. Specific Jurisdiction
“There are two prongs to the specific jurisdiction analysis. First, there must
be purposeful availment: minimum contacts with the forum state that show the

defendant took a deliberate act reaching out to do business in that state. Second, the
contacts must give rise to—or relate to—plaintiff’s claims.”65 Foxway disputes only
the second prong. But Gateway disputes both prongs. I address specific jurisdiction

over each Defendant, beginning with Foxway.

63 Id. at 15–16.
64 Landreville v. Joe Brown Co., No. CIV.A. 06-5568, 2008 WL 910009, at *3 (E.D. Pa. Apr. 2,
2008). See also Davis v. Quality Carriers, Inc., No. CIV.A. 08-4533 (SRC), 2009 WL
1291985, at *6 (D.N.J. May 7, 2009) (“[T]his court rejects the non-movants’ argument that
Bourassa’s designation of a national agent for service of process explicitly or implicitly
indicated its consent to personal jurisdiction in New Jersey.”); Tyler v. Gaines Motor Lines,
Inc., 245 F. Supp. 2d 730, 732 (D. Md. 2003) (“Gaines’s designation of an agent for service of
process pursuant to the Interstate Commerce Act does not provide the ‘consent’ of the
corporation to be sued in the State of Maryland for a matter unrelated to its contacts with the
state.”).
a. Foxway
Foxway argues that Allen’s claims do not relate to Pennsylvania because the

accident occurred in New York, before the tractor-trailer reached Pennsylvania. But
the Supreme Court of the United States has held that “[t]he proper question is not
where the plaintiff experienced a particular injury or effect but whether the
defendant’s conduct connects him to the forum in a meaningful way.”66 Indeed,

federal courts have exercised specific jurisdiction in cases involving accidents that
occurred in other jurisdictions.67
For example, in Theunissen v. Matthews, a machine crushed a truck driver’s

hand in Canada.68 But this happened while the truck driver was picking “up a load
of lumber destined for . . . Michigan.”69 And the truck driver “would have sustained
no injury” “but for [the Canadian defendant’s] alleged business contacts with”
Michigan.70 Thus, the United States Court of Appeals for the Sixth Circuit held that

66 Walden v. Fiore, 571 U.S. 277, 290 (2014).
67 See, e.g., O’Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 325 (3d Cir. 2007) (allowing
district court to exercise specific jurisdiction even though the accident at issue occurred in
Barbados); Thomas v. Ford Motor Co., 289 F. Supp. 3d 941, 947 (E.D. Wis. 2017) (exercising
specific jurisdiction “[e]ven though the [plaintiffs’] accident did not occur in Wisconsin”);
Broadus v. Delta Air Lines, Inc., 101 F. Supp. 3d 554, 561 (M.D.N.C. 2015) (exercising
specific jurisdiction even though the accident occurred in Georgia); Busch v. Sea World of
Ohio, 95 F.R.D. 336, 340 (W.D. Pa. 1982) (exercising personal jurisdiction even though the
accident occurred in Ohio).
68 935 F.2d 1454, 1455–56 (6th Cir. 1991).
69 Id.
the Eastern District of Michigan had personal jurisdiction over the Canadian lumber-
yard operator.71

Similarly, Foxway’s tractor-trailer was destined for Pennsylvania when it
killed Allen’s children.72 Indeed, Foxway “transported freight into and out of
Pennsylvania on numerous occasions.”73 Because Foxway’s freight haul to

Pennsylvania killed Allen’s children, Allen’s claims arise out of or relate to
Foxway’s business contacts with Pennsylvania. Foxway’s motion to dismiss for lack
of personal jurisdiction is therefore denied.
b. Gateway

Gateway argues that it does not have Pennsylvania contacts because it
conducts all its business from Canada and does not have offices, licenses,
employees, or property in Pennsylvania. “While it may be true that [Gateway has]

no physical connection with the forum, that is not dispositive.”74 “[I]t is an
inescapable fact of modern commercial life that a substantial amount of business is
transacted solely by mail and wire communications across state lines, thus obviating
the need for physical presence within a State in which business is conducted.”75 Still,

“it is essential in each case that there be some act by which the defendant

71 Id. at 1465.
72 Doc. 23 at 2–3, 11.
73 Id. at 10–11.
74 Mellon, 960 F.2d at 1225.
purposefully avails itself of the privilege of conducting activities within the forum
State, thus invoking the benefits and protections of its laws.”76

Here, Gateway arranged or brokered numerous shipments departing from or
arriving in Pennsylvania.77 These include the freight haul to Pennsylvania that killed
Allen’s children.78 By repeatedly arranging transportation to and from Pennsylvania

and thereby profiting, Gateway “purposefully availed itself of the privilege of
conducting business within Pennsylvania.”79 Thus, Allen meets the first prong of
minimum contacts with Pennsylvania.
As for the second prong, Gateway argues that Allen’s claims arise from a car

accident in New York and thus do not relate to its Canadian brokerage conduct. But
as I explained above, the accident’s New York location does not vitiate this Court’s
specific jurisdiction. Because Gateway arranged a freight haul to Pennsylvania that

killed Allen’s children, Allen’s claims arise out of or relate to Gateway’s business
contacts with Pennsylvania.80 Thus, Allen satisfies both prongs of the specific
jurisdiction analysis. And Gateway’s motion to dismiss for lack of personal
jurisdiction is denied.

76 Hanson v. Denckla, 357 U.S. 235, 253 (1958).
77 Doc. 38 at 17 (“Further, for more than three years prior to the alleged collision, Gateway only
brokered 4,381 deals involving shipments departing from or arriving in Pennsylvania.”).
78 Id. at 11–12.
79 D’Jamoos, 566 F.3d at 101, 103 (finding no personal jurisdiction because defendant “did not
profit from activities in Pennsylvania”).
B. Venue
1. Dismissal

Next, Foxway and Gateway move to dismiss for improper venue.81 The
United States Supreme Court addressed venue against alien defendants in Brunette
Mach. Works, Ltd. v. Kockum Indus., Inc.82 There, a Canadian corporation sought
to dismiss for improper venue.83 But the Supreme Court reaffirmed the “long-

established rule that suits against aliens are wholly outside the operation of all the
federal venue laws, general and special.”84 And under this alien-venue rule, the
Canadian corporation could “be sued in any district.”85

In 2011, Congress amended the general venue statute, 28 U.S.C. § 1391. But
“Congress did not clearly make—and did not otherwise express an intent to make—
a change to the [alien-venue] rule as it affects foreign corporations.”86 So Brunette
still controls.87

81 See Doc. 23 at 11–12 (“Also supporting such dismissal, however, is venue in this suit not being
properly situated in the Middle District of Pennsylvania. . . . Again, with venue in this action
being improperly situated in the Middle District of Pennsylvania, this matter can be dismissed
as to Foxway Transportation, albeit without prejudice.”); see also Doc. 38 at 21–22.
82 406 U.S. 706, 713–14 (1972).
83 Id. at 707.
84 Id. at 714.
85 Id. at 708.
86 In re HTC Corp., 889 F.3d 1349, 1358 (Fed. Cir. 2018).
87 Id. at 1361 (“Because this case does not involve the sole clear modification Congress made to
the rule in 2011, the rule, ‘which has prevailed throughout the history of the federal courts,
Like the Brunette defendant, Foxway and Gateway are Canadian
corporations.88 And as alien corporations, Foxway and Gateway are “wholly outside

the operation of all the federal venue laws.”89 Thus, Allen may sue Foxway and
Gateway in this district.
Gateway counters that the alien-venue rule does not apply here because only
two of the four defendants are foreign.90 But the domestic defendants here do not

dispute venue, much less affect the alien-venue rule’s applicability.91 Indeed,
Gateway does not cite caselaw requiring all defendants to be foreign before the alien-
venue rule can apply against particular foreign defendants. 28 U.S.C. § 1391 does

not require this either. So the alien-venue rule still applies here. And Foxway’s and
Gateway’s motions to dismiss for improper venue are denied.
2. Transfer

Alternatively, Foxway moves to transfer venue under 28 U.S.C. § 1406(a).92
But Foxway does not move to transfer venue under 28 U.S.C. § 1404(a).93 This
statutory difference is critical.

88 See Doc. 23 at 2 (“Foxway is a privately-held Ontario, Canada corporation.); Doc. 38 at 10
(“Gateway is a Canadian corporation having a principal place of business in
Burlington, Ontario, Canada.”).
89 Brunette, 406 U.S. at 714.
90 Doc. 47 at 14–15.
91 Docs. 33, 36.
92 Doc. 22 at 2.
“Although both sections were broadly designed to allow transfer instead of
dismissal, § 1406(a) provides for transfer from forums in which venue is wrongly or

improperly laid, whereas, in contrast, § 1404(a) operates on the premises that the
plaintiff has properly exercised his venue privilege.”94 Unlike § 1404(a), § 1406(a)
“condition[s] transfer on the initial forum’s being ‘wrong.’”95 “Whether venue is

‘wrong’ or ‘improper’ depends exclusively on whether the court in which the case
was brought satisfies the requirements of federal venue laws.”96
Here, venue is proper because the alien-venue rule allows Allen to sue
Foxway in this district. And Ҥ 1406 does not apply when, as here, venue is

proper.”97 Because § 1406 does not apply here, Foxway’s motion to transfer venue
under § 1406(a) is denied.
C. Merits

Next, Gateway moves to dismiss because Allen has not plausibly alleged an
employment relationship, a joint venture, or punitive damages. I address each
contention in turn. In sum, Gateway’s motion to dismiss for failure to state a claim
is denied.

94 Van Dusen v. Barrack, 376 U.S. 612, 634 (1964).
95 Atl. Marine Const. Co. v. U.S. Dist. Ct. for W. Dist. of Texas, 571 U.S. 49, 59 (2013).
96 Id. at 55.
1. Employment Relationship
Gateway argues that Allen does not sufficiently plead that Gateway employed

or otherwise controlled Volodymyr Frolyak, the tractor-trailer’s driver. Under
Pennsylvania law, “control over the work to be completed and the manner in which
it is to be performed are the primary factors in determining employee status.”98

Here, Allen alleges that the Defendants, including Gateway, exercised
complete control over the dispatching and routing of the tractor-trailer Frolyak drove
at the time of the crash.99 These allegations permit the inference that Gateway had
control over how Frolyak drove the tractor-trailer. Accordingly, Allen has

sufficiently pled an employment relationship between Gateway and Frolyak.
2. Joint Venture
Gateway also argues that Allen has not plausibly alleged its engagement in a
joint venture. A joint venture “must arise from a contractual basis . . . .”100 To form

a joint venture, “(1) each party to the venture must make a contribution . . . ; (2)
profits must be shared among the parties; (3) there must be a ‘joint proprietary
interest and right of mutual control over the subject matter’ of the enterprise; (4)

usually, there is a single business transaction rather than a general and continuous
transaction.”101

98 Universal Am-Can, Ltd. v. W.C.A.B. (Minteer), 762 A.2d 328, 333 (Pa. 2000).
99 Doc. 17 at ¶¶ 73–74.
100 McRoberts v. Phelps, 138 A.2d 439, 443 (Pa. 1958).
Here, Allen alleges that Tempel, Foxway, and Gateway provided freight
services through a joint venture, which they memorialized in a contract.102 Allen

also alleges that each entity contributed capital, materials, services, or knowledge
for the load Frolyak was transporting.103 Allen further claims that these Defendants
shared all the profits their joint venture generated.104 These details all go to the
elements of a joint venture under Pennsylvania law.105 Thus, Allen has plausibly

alleged that Gateway engaged in a joint venture.
3. Punitive Damages
Finally, Gateway argues that Allen has not plausibly alleged punitive

damages. But Allen alleges that Frolyak exceeded Federal Motor Carrier Safety
Regulations’ hour limits at the time of the crash and had prior speeding violations.106
Allen further alleges that Gateway entrusted a tractor-trailer to Frolyak despite his
previous violations and failed to properly monitor, train, and supervise Frolyak.107

At the pleading stage, these allegations plausibly indicate punitive damages.108
Gateway’s motion to dismiss for failure to state a claim is therefore denied.

102 Doc. 17 at ¶¶ 30, 182.
103 Id. at ¶ 183.
104 Id. at ¶ 184.
105 McRoberts, 138 A.2d at 443.
106 Doc. 17 at ¶¶ 62, 65.
107 Id. at ¶¶ 160–77.
108 See Delamarter v. Couglar, No. 3:16CV665, 2016 WL 3951663, at *3 (M.D. Pa. July 21,
2016) (denying motion to dismiss punitive-damages claim because “Plaintiffs allege that CTI
entrusted a tractor trailer to Couglar without ascertaining his ability to operate the vehicle
safely,” “also allege that CTI allowed Couglar to operate the vehicle when they knew or should
V. CONCLUSION
This Court lacks general jurisdiction over Foxway and Gateway. But this

Court does have specific jurisdiction over Foxway and Gateway. Accordingly,
Foxway’s and Gateway’s motions to dismiss for lack of personal jurisdiction are
denied.

Moreover, the alien-venue rule permits Allen to sue Foxway and Gateway in
this district. And 28 U.S.C. § 1406(a) does not apply here because venue is proper.
Accordingly, Foxway’s and Gateway’s motions to dismiss for improper venue and,
alternatively, to transfer venue are denied.

Finally, Allen plausibly alleges an employment relationship, a joint venture,
and punitive damages. So Gateway’s motion to dismiss for failure to state a claim
is denied. As such, Foxway and Gateway have twenty-one days from today’s date

to file answers to Allen’s Amended Complaint.
An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
Chief United States District Judge

properly supervise Couglar regarding [] the appropriate operation of the vehicle in compliance

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10411263. Public record. Not legal advice.