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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

SUSAN D. ERB, Administratrix of :

the Estate of BARBARA JO BUCK, : No. 4:05-CV-0011

deceased, :

Plaintiff, :

: (Judge McClure)

v. :

:

ROADWAY EXPRESS, INC. :

Defendant. :

M E M O R A N D U M

April 19, 2005

BACKGROUND:

On January 3, 2005, plaintiff Susan D. Erb filed his civil complaint against

defendant Roadway Express, Inc. Erb is the administratrix of the estate of

decedent Barbara Jo Buck, who died in a multi-vehicle accident along Interstate 70

in Indiana on August 13, 2004. Now before the court is Roadway’s motion to

dismiss for lack of personal jurisdiction and improper venue, or in the alternative,

motion to transfer to the United States District Court for the Southern District of

Indiana. For the following reasons, the court will deny the motion.

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DISCUSSION:

I. Plaintiff’s Complaint

On August 13, 2004, decedent Barbara Jo Buck was a passenger in a vehicle

heading east on Interstate 70 through Vigo County, Indiana. (See Compl., Rec.

Doc. No. 1, at ¶5.) Allegedly, as the vehicle began to merge into the right

eastbound lane before entering a construction zone, the vehicle was struck from

behind by a tractor trailer owned by defendant Roadway Express, Inc., and

operated by Roadway’s employee. (Id. at ¶¶6-7.) Plaintiff Susan D. Erb alleges

she is the duly appointed administratrix of Buck’s estate, opened in

Northumberland County, Pennsylvania. (Id. at 1.) On January 3, 2005, Erb filed a

two-count complaint on behalf of Buck’s estate against Roadway, alleging a

wrongful death claim (count I), and a survival action (count II).

II. Personal Jurisdiction

Roadway seeks to dismiss Erb’s complaint for lack of personal jurisdiction

pursuant to Federal Rule of Civil Procedure 12(b)(2). In reviewing a Rule 12(b)(2)

motion, the court “must accept all of the plaintiff’s allegations as true and construe

disputed facts in favor of the plaintiff.” Pinker v. Roche Holdings, Ltd., 292 F.3d

361, 368 (3d Cir. 2002) (internal quotations and citation omitted). Nonetheless, the

plaintiff bears the burden of demonstrating that the court may properly exercise

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personal jurisdiction over the defendant. See Dayhoff, Inc. v. H.J. Heinz Co., 86

F.3d 1287, 1302 (3d Cir. 1996). To satisfy her burden, Erb must go beyond the

allegations of her complaint and produce affidavits or other competent evidence

from which the court can determine the propriety of asserting personal jurisdiction

over the defendant. North Penn Gas Co. v. Corning Natural Gas Corp., 897 F.2d

687, 689 (3d Cir. 1990). 

Federal Rule of Civil Procedure 4(e)(1) “authorizes personal jurisdiction over

non-resident defendants under the law of the state where the district court sits.” 

Mellon Bank (East) PSFS, Nat’l Ass’n v. Farino, 960 F.2d 1217, 1221 (3d Cir.

1992). The Pennsylvania long-arm statute, 42 Pa. C.S.A. §§ 5301-22, empowers

Pennsylvania courts to exercise personal jurisdiction over non-resident defendants

to the extent permitted under the Due Process Clause of the Fourteenth

Amendment. See 42 Pa. C.S.A. § 5322(b); Mellon Bank, 960 F.2d at 1221. A

court may assert personal jurisdiction consistent with the Due Process Clause so

long as the defendant possesses sufficient minimum contacts with the forum and so

long as the exercise of personal jurisdiction does not to offend “traditional notions

of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310,

316 (1945); see IMO Industries, Inc. v. Kiekert AG, 155 F.3d 254, 259 (3d Cir.

1998); William Rosenstein & Sons Co. v. BBI Produce, Inc., 123 F. Supp. 2d 268,

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271 (M.D. Pa. 2000) (Caputo, J.). Personal jurisdiction takes two forms, general

and specific. Remick v. Manfredy, 238 F.3d 248, 255 (3d Cir. 2001). Specific

jurisdiction exists when a plaintiff’s cause of action arises out of or relates to

defendant’s contacts with the forum “such that the defendant should reasonably

anticipate being haled into court there.” World-Wide Volkswagen Corp. v.

Woodson, 44 U.S. 286, 297 (1980); Remick, 238 F.3d at 255. General jurisdiction

exists when defendant’s contacts with the forum are continuous and systematic,

despite plaintiff’s cause of action arising out of defendant’s out-of-forum activities. 

See Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414 (1984);

Pinker, 292 F.3d at 368 n.1.

Erb’s claims do not arise out of or relate to Roadway’s activities in

Pennsylvania, so specific jurisdiction is inapplicable. To establish general

jurisdiction, Erb must show more than “minium contacts” with the forum. Rather,

she must show that Roadway’s contacts with the forum are continuous, systematic,

and substantial. See 42 Pa. C.S.A. § 5301(a)(2); Provident Nat’l Bank v. California

Federal Savings & Loan Ass’n, 819 F.2d 434, 437 (3d Cir. 1987).

Erb adequately demonstrates that Roadway’s contacts with Pennsylvania are

continuous, systematic, and substantial. Erb notes that Roadway advertises that it

provides “seamless services between all 50 states.” (Pl.’s Br., Rec. Doc. No. 13,

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Ex. 1 at ¶2; Ex. 1A.) Erb also notes that Roadway maintains 20 facilities in

Pennsylvania. (Id., Ex. 1 at ¶¶2-3; Ex. 1B.) Roadway counters that its 20

Pennsylvania facilities only account for 5.5% of Roadway’s terminals nationwide,

that only 7 of those 20 terminals are located in this district, and that only 5.7% of

Roadway’s revenue derives from pick-ups and deliveries in Pennsylvania. (See

Def.’s Reply Br., Rec. Doc. No. 14, Ex. A at ¶¶5-7.)

Roadway’s attempt to downplay its contacts with Pennsylvania fall flat. 

Roadway does more than simply utilize the roads in Pennsylvania. See Amos v.

Pendry, 810 F. Supp. 146, 149 (M.D. Pa. 1992) (Nealon, J.). It maintains offices,

personnel, and facilities in Pennsylvania, which all connote continuous, systematic,

and substantial contact with the forum. See BP Chemicals Ltd. v. Formosa

Chemical & Fiber Co., 229 F.3d 254, 263 (3d Cir. 2000). The revenue Roadway

derives from business in Pennsylvania may not be significant, but neither is it

insubstantial. Compare Amos, 810 F. Supp. at 149 (citing with approval Gulentz v.

Fosdick, 466 A.2d 1039 (Pa. Super. Ct. 1983), in which 3.7% of business in

Pennsylvania supported exercise of general personal jurisdiction), with Allied

Leather Corp. v. Altama Delta Corp., 785 F. Supp. 494, 498 (M.D. Pa. 1992)

(Rambo, J.) (defendant’s sale of 1% of its products in Pennsylvania was not

substantial).

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Additionally, exercise of general personal jurisdiction is reasonable and will

not offend traditional notions of fair play and substantial justice. A court should

consider the following factors when determining the reasonableness of the exercise

of jurisdiction: (1) the burden on the defendant; (2) the forum state’s interest in

adjudicating the dispute; (3) the 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. See Asahi Metal Indus. Co.,

Ltd. v. Superior Ct. of California, 480 U.S. 102, 113 (1987). None of these factors

weighs against the exercise of jurisdiction. Roadway operates numerous facilities in

Pennsylvania and will not be either heavily burdened or significantly inconvenienced

if required to litigate this case in this forum. This forum has an interest in

adjudicating a dispute brought by a Pennsylvania resident to ensure the obtainment

of proper relief. Erb has an interest in obtaining convenient and effective relief in

this forum. Lastly, the exercise of jurisdiction will not impede the efficacy of the

interstate judicial system, nor will it inhibit any other state’s fundamental substantive

social policies. Accordingly, we will not dismiss the case under Rule 12(b)(2).

III. Improper Venue

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Roadway also seeks to dismiss Erb’s complaint due to improper venue

pursuant to Federal Rule of Civil Procedure 12(b)(3). Venue is governed by 28

U.S.C. § 1391. A civil action founded upon diversity of citizenship only, such as

the instant action, may 

be brought only in (1) a judicial district where any defendant resides, if

all defendants reside in the same State, (2) a judicial district in which a

substantial part of the events or omissions giving rise to the claim

occurred, or a substantial part of property that is the subject of the action

is situated, or (3) 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.

28 U.S.C. § 1391(a). Further, 

[f]or purposes of venue under this chapter, a defendant that is a

corporation shall be deemed to reside in any judicial district in which it

is subject to personal jurisdiction at the time the action is commenced. In

a State which has more than one judicial district and in which a defendant

that is a corporation is subject to personal jurisdiction at the time an

action is commenced, such corporation shall be deemed to reside in any

district in that State within which its contacts would be sufficient to

subject it to personal jurisdiction if that district were a separate State,

and, if there is no such district, the corporation shall be deemed to reside

in the district within which it has the most significant contacts.

28 U.S.C. § 1391(c). Thus, venue properly lies in the Middle District of

Pennsylvania if Roadway resides in it. See 28 U.S.C. § 1391(a)(1). Roadway

resides in the Middle District of Pennsylvania so long as it is subject to personal

jurisdiction here. See 28 U.S.C. § 1391(c). As we already determined that

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 Case publication services incorrectly denote this case as arising out of the

Southern District of New York, the transferee district in High River.

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Roadway is subject to personal jurisdiction in the Middle District of Pennsylvania,

venue properly lies in this district as well. Consequently, we will not dismiss Erb’s

complaint pursuant to Rule 12(b)(3).

III. Transfer Venue

Finally, in the alternative, Roadway seeks transfer of this case to the United

States District Court for the Southern District of Indiana pursuant to 28 U.S.C.

§ 1404(a). Section 1404(a) provides that “[f]or the convenience of parties and

witnesses, in the interest of justice, a district court may transfer any civil action to

any other district or division where it might have been brought.” It is within the

court’s discretion to transfer venue, although motions for transfer should not be

liberally granted. See Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir.

1995).

In evaluating a motion for transfer, the court must first determine whether the

action could have been brought in the transferee district, and if so, then the court

must balance several public and private factors. See High River Ltd. Partnership v.

Mylan Labs., Inc., 353 F. Supp. 2d 487, 492 (M.D. Pa. 2005) (Rambo, J.).1

Clearly, this action could have been brought in the Southern District of Indiana

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because “a substantial part of the events or omissions giving rise to the claim [i.e.,

the automobile accident] occurred” there. 28 U.S.C. § 1391(a)(2). Thus, the court

must determine whether the various factors warrant transfer. The six private and six

public factors identified by the Third Circuit for district courts to consider when

ruling on a transfer request are: (1) the plaintiff’s choice of forum; (2) the

defendant’s preference; (3) whether the claim arose elsewhere; (4) the convenience

of the parties given their relative physical and financial conditions; (5) the

convenience of the witnesses, but only to the extent that the witnesses may actually

be unavailable for trial in one of the fora; (6) the location of books and records,

similarly limited to the extent that the files could not be produced in the alternative

forum; (7) the enforceability of the judgment; (8) practical considerations that could

make the trial easy, expeditious, or inexpensive; (9) the relative court congestion in

the competing courts; (10) the local interest in deciding local controversies at home;

(11) the public policies of the fora; (12) and the familiarity of the trial judge with the

applicable state law. See Jumara, 55 F.3d at 879-80. Although the party seeking

transfer bears the burden of demonstrating that these factors justify transfer, the

moving party need only show that the case would be better off transferred to

another district. High River, 353 F. Supp. 2d at 492 (quotation and citations

omitted).

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Applying these factors, we first accord significant weight to Erb’s choice of

forum. See Jumara, 55 F.3d at 879. We accord lesser weight to Roadway’s

preference. Trying the case in the Middle District of Pennsylvania is more

convenient for Erb, and as an individual plaintiff she would bear a much greater

cost and greater inconvenience if she had to litigate her case in the Southern District

of Indiana. Surely, Roadway is in a better position to litigate the case in this district

than Erb is to litigate the case in the Southern District of Indiana. Also, as

Roadway’s principal place of business is in Ohio, it will suffer the same

inconvenience whether it litigated this case here or Indiana.

We also note the accident occurred in Indiana. This factor weighs in favor

of transfer. See Connors v. R & S Parts & Servs., Inc., 248 F. Supp. 2d 394, 396

(E.D. Pa. 2003).

Some witnesses will be inconvenienced if the case remains here, because

many key non-party witnesses, such as the Indiana State Police and medical

personnel who were at the scene of the accident, are beyond the subpoena power

of this court. See Fed. R. Civ. P. 45(b)(2). Yet, many other non-party driver

witnesses (and other potential plaintiffs) hale from locations other than either

Indiana or Pennsylvania, so it would be equally inconvenient for them, in terms of

their potential unavailability, for this case to proceed either here or in Indiana. 

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However, nothing suggests that Erb’s own witnesses would be unavailable for trial

in Indiana. See Amp, Inc. v. Methode Elec. Inc., 823 F. Supp. 259, 269 (M.D. Pa.

1993) (McClure, J.).

Another pertinent consideration is this court’s technological capabilities. 

This court’s courtroom has full multi-media and video-conferencing capabilities. If

this case goes to trial here, the parties can arrange for live video testimony, or can

easily play videotaped depositions of witnesses. Of course, procuring a witness

for live video-conference testimony runs afoul of the same limitations of the court’s

subpoena power, but these technological alternatives substantially lessen the

inconvenience to potential witnesses. Overall, then, the convenience of the various

witnesses only slightly weighs in favor of transfer.

The location of books, records, and similar evidence only slightly weighs in

favor of transfer, as the accident and medical reports from the scene are

presumably in Indiana. Nonetheless, neither party suggests transporting these

records to the Middle District of Pennsylvania poses a large inconvenience or an

undue expense. The amount of traditional paper-based evidence is not likely to be

voluminous. Moreover, paper-based evidence can easily be displayed (or even

digitized) through the courtroom’s video system.

The enforceability of a judgment rendered by this court as opposed to a

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judgment rendered by a court sitting in the Southern District of Indiana is not an

issue. This factor does not weigh for or against transfer.

Practical considerations do not weigh in favor of or against transfer. 

Roadway indicates that other lawsuits will likely arise out of the automobile

accident and transfer would reduce the chance of duplicative litigation. Although

the court is unaware of whether other lawsuits have been initiated in Indiana arising

out of the same automobile accident, the potential for duplicative litigation is a

relevant concern. See Kisko v. Penn Central Transportation Co., 408 F. Supp.

984, 987 (M.D. Pa. 1976) (Muir, J.). Yet, the court’s aforementioned technological

capabilities, if even partially utilized by the parties, will make trial in this forum both

easy, expeditious, and possibly less expensive.

The relative congestion of the competing courts weighs slightly against

transfer. Given this court’s typical trial calendar, we fail to see how this case could

be litigated more expeditiously in the Southern District of Indiana, and Roadway

offers nothing from which we could conclude differently.

The remaining factors negligibly weigh in favor of transfer. Indiana’s local

interest in the controversy weighs in favor of transfer because this case involves an

automobile accident that occurred in Indiana. Indiana law will likely apply, placing

Indiana’s policy interests ahead of Pennsylvania’s interests, although Pennsylvania

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has an interest in ensuring just compensation for its citizens. Finally, although

applicable Indiana law is not necessarily complex, a court sitting in the Southern

District of Indiana would be more familiar with Indiana law than this court. This

court’s unfamiliarity, however, would be compensated for through proper briefing

by the parties.

Upon consideration of the pertinent factors, the factors weighing in favor of

transfer are not strong enough to overcome the factors weighing against transfer. 

The weight of the factors certainly does not show that this case would be better off

if it was transferred to the Southern District of Indiana. Accordingly, the court will

deny Roadway’s motion.

CONCLUSION:

Personal jurisdiction exists over Roadway and venue properly lies in the

Middle District of Pennsylvania. Upon consideration of the pertinent factors, the

court will not transfer the case to the Southern District of Indiana. Therefore,

Roadway’s motion will be denied.

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

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Page 1 of 1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

SUSAN D. ERB, Administratrix of :

the Estate of BARBARA JO BUCK, : No. 4:05-CV-0011

deceased, :

Plaintiff, :

: (Judge McClure)

v. :

:

ROADWAY EXPRESS, INC. :

Defendant. :

O R D E R

April 19, 2005

For the reasons set forth in the accompanying memorandum,

IT IS ORDERED THAT:

Roadway’s motion to dismiss for lack of personal jurisdiction and improper

venue, or in the alternative, motion for transfer to the United States District Court

for the Southern District of Indiana (Rec. Doc. No. 6), is denied.

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

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