Opinion
Civil No. CCB 07-2243.
June 10, 2008
MEMORANDUM OPINION
Plaintiff Transcontinental Insurance Company ("Transcontinental") has brought this lawsuit against defendants Eastern Steel Constructors, Inc. ("Eastern Steel"), C.J. Mahan Construction Company ("Mahan"), St. Paul Fire Marine Insurance Company ("St. Paul"), and Bruce F. Grau Associates, Inc. ("Grau"). One count of the suit seeks a declaratory judgment that Transcontinental is "not obligated to provide coverage and a defense to" Mahan in an underlying personal injury lawsuit in West Virginia and that Mahan is not "an additional insured" under an insurance policy between Transcontinental and Eastern Steel. (Am. Compl. ¶ 33.) This declaratory judgment count is filed against defendants Eastern Steel, Mahan, and St. Paul. ( Id. ¶ 30.) The other counts seek damages from defendant Grau for breach of contract, contractual indemnification, and negligence. ( Id. ¶¶ 34-45.)
A variety of motions are currently pending. In particular, the following motions are ripe for decision: Mahan's motion to dismiss for lack of personal jurisdiction or, in the alternative, for transfer to the Southern District of West Virginia; Eastern Steel's motion to dismiss or, in the alternative, for transfer to the United States District Court for the Southern District of West Virginia; St. Paul's motion to dismiss or, in the alternative, to stay the proceedings; and Grau's motion to dismiss or, in the alternative, for summary judgment. For the reasons stated below, the declaratory judgment count against Mahan, Eastern Steel, and St. Paul will be transferred to the Southern District of West Virginia, and Grau's motion for summary judgment will be granted.
FACTS
The facts relevant to the pending motions are straightforward and largely undisputed. Mahan, an Ohio corporation, contracted with the West Virginia Department of Transportation to serve as general contractor for a bridge construction project in West Virginia. ( See Def. Eastern Steel's Mem. at 2.) In conjunction with this project, Mahan entered into a subcontract with Eastern Steel, a Maryland corporation, for the performance of "steel construction and rebar work" on the bridge. ( Id.; see also Am. Compl. Ex. B, Mahan-Eastern Steel Subcontract ("Subcontract").) The terms of the subcontract required that Eastern Steel acquire insurance coverage that would "indemnify, protect, and save harmless" Mahan from liability resulting from any act or omission of Eastern Steel. ( Id. ¶¶ 20-21; id. Ex. B, Subcontract at 5, 11.) The subcontract stated that "the laws of the State where the project is located" will govern the contract and that suits brought to enforce the contract shall be brought in that state. ( Id. at 15.)
In an accident that occurred during performance of the subcontract, two Eastern Steel employees were injured. ( Id. ¶ 14.) The injured employees filed a personal injury lawsuit in West Virginia state court against Eastern Steel and Mahan; the lawsuit was subsequently removed to federal court. ( Id. ¶ 13.) In this underlying lawsuit, Mahan filed a cross-claim against Eastern Steel seeking coverage pursuant to the aforementioned provisions of the subcontract. ( Id. ¶ 17.) The injured employees' claims have settled, and portions of the cross-claim between Mahan and Eastern Steel were recently decided in Mahan's favor on summary judgment. ( Id. ¶ 18; Def. Eastern Steel's Mot. to Dismiss Ex. F, Summ. J. Op. and Order.)
Also a plaintiff in this underlying lawsuit was the wife of one of the injured employees, who presumably filed a derivative loss of consortium claim. ( See Am. Compl. ¶ 13.)
Mahan's insurance company, defendant St. Paul, provided Mahan with a defense to the underlying lawsuit. (Am. Compl. ¶ 16.)
Mahan was granted summary judgment on its breach of contract claims, but denied summary judgment on the fraud and bad faith claims. ( See Def. Eastern Steel's Mot. to Dismiss Ex. F, Summ. J. Op. and Order.)
On or about August 23, 2007, Transcontinental, Eastern Steel's insurance provider, filed this lawsuit, seeking a declaratory judgment it is "not obligated to provide coverage and a defense to" Mahan in the underlying lawsuit and that Mahan is not "an additional insured" under the policy. (Am. Compl. ¶ 33.) On or about October 30, 2007, Transcontinental filed an amended complaint including Grau, the insurance broker for the policy at issue, as a defendant and adding counts seeking damages against Grau. ( See id. ¶¶ 34-45 (laying out claims against Grau for breach of contract, contractual indemnification, and negligence).) Grau was not made a party to the declaratory judgment count. ( See id. ¶ 30 (listing Mahan, Eastern Steel, and St. Paul as parties to the declaratory judgment count).)
The gravamen of the declaratory judgment claim is that the policy named only Eastern Steel as the insured and that no one requested that Mahan be added as an additional insured under the policy. ( Id. ¶¶ 23-28.) Transcontinental's damages claims against Grau arise out of Grau's alleged issuance of certificates of insurance to Mahan indicating that Mahan was an additional insured under the policy. With these facts in mind, I turn to the pending motions.
ANALYSIS
Because the declaratory judgment count pertains only to three of the defendants and the damages counts pertain only to the fourth defendant, I will address the pending motions in two separate discussions. First, I will examine the threshold question of whether this Court can exercise personal jurisdiction over defendant Mahan, and thus properly make a ruling on the declaratory judgment count. Second, I will look at Grau's motion for summary judgment on the damages counts.
I. Jurisdiction Over Mahan
Mahan contends that this Court cannot exercise personal jurisdiction over it because Mahan's only Maryland contact — the subcontract with a Maryland corporation — is insufficient to give rise to jurisdiction. Transcontinental responds by arguing that because the subcontract's insurance and indemnification language will be at issue in the case, Mahan has been properly haled into court here. When a jurisdictional determination is made without a hearing, plaintiffs need only make a prima facie showing of personal jurisdiction. See, e.g., Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir. 1993).
Because the Maryland "long-arm statute is co-extensive with the limits of personal jurisdiction set by the due process clause of the [United States] Constitution," the usual two-prong inquiry, focusing first on the breadth of the state statute and then on the due process clause, merges into one. Carefirst of Md. v. Carefirst Pregnancy Ctrs., 334 F.3d 390, 396 (4th Cir. 2003). Generally, "[a] court's exercise of jurisdiction over a nonresident defendant comports with due process if the defendant has `minimum contacts' with the forum, such that to require the defendant to defend its interests in that state `does not offend traditional notions of fair play and substantial justice.'" Id. at 397 (quoting Int'l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945)). When the lawsuit does not arise out of the defendant's contacts with the forum state, a court can exercise only general jurisdiction, and the defendant's contacts must be "continuous and systematic." Helicopertos Nacionales de Colombia v. Hall, 466 U.S. 408, 416 (1984). When the lawsuit does arise out of the defendant's contacts with the forum state, a court can exercise specific jurisdiction. Id. at 414 n. 8.
Mahan clearly does not have the sort of extensive and continuous contacts with Maryland that are necessary for general jurisdiction. ( See generally Def. Mahan's Mot. to Dismiss Ex. A, Aff. of D. McCrae (outlining Mahan's dearth of Maryland contacts).) Consequently, the jurisdictional analysis must focus on whether or not this court can exercise specific jurisdiction. The Fourth Circuit has observed that three facts are relevant to the specific jurisdiction analysis:
While the Maryland long-arm statute reaches to the outer limits of due process, it nevertheless "limits specific jurisdiction to cases where the cause of action `aris[es] from any act enumerated' in the statute itself." Johansson Corp. v. Bowness Constr. Co., 304 F. Supp. 2d 701, 704 (D. Md. 2004) (quoting Md. Code Ann., Cts. Jud. Proc. § 6-103(a)) (alterations in original). Plaintiff's opposition to the motion to dismiss relies upon § 6-103(b)(1) of the long-arm statute, which confers personal jurisdiction over "a person, who directly or by an agent: (1) Transacts any business . . . in the State." Md. Code Ann., Cts. Jud. Proc. § 6-103(b)(1). As I have previously noted, while it is preferable that the plaintiff "identify the relevant provision(s) of the long-arm statute in its complaint, this omission alone does not warrant dismissal if the plaintiff properly references the statute in a memorandum responding to a defendant's motion to dismiss." Johansson Corp., 304 F. Supp. 2d at 704 n. 1.
In determining whether specific jurisdiction exists, we consider (1) the extent to which the defendant has purposefully availed itself of the privilege of conducting activities in the state; (2) whether the plaintiffs' claims arise out of those activities directed at the state; and (3) whether the exercise of personal jurisdiction would be constitutionally `reasonable.'Carefirst of Md., 334 F.3d at 397 (citing ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 711-12 (4th Cir. 2002)).
In the instant case, Mahan likely did not purposefully avail itself of the privilege of conducting activities in Maryland. While plaintiff's opposition summarily states that the subcontract was "entered into in Maryland" (Pl.'s Opp'n at 6), there is no evidence in the record as to who initiated contact between Mahan and Eastern Steel, where the negotiations occurred, or where the contract was signed. Indeed, the only evidence presented tends to negate the conclusion that Maryland was the situs of the contract or that Mahan solicited Eastern Steel's services in Maryland. ( See Def. Mahan's Reply Ex. A, Supplemental Aff. of D. McCrae ¶ 2 ("The October 14, 2003 subcontract agreement between C.J. Mahan and Eastern Steel Constructors, Inc. (`Eastern Steel') was not entered into or otherwise formed in Maryland.").) The plaintiff carries the burden of putting forth a prima facie case for jurisdiction. Mylan Labs., Inc., 2 F.3d at 60. Transcontinental has failed to meet that burden here. ( See Am. Compl. ¶ 6 ("Upon information and belief, Defendant C.J. Mahan is an Ohio corporation with its principal place of business in Grove City, Ohio.").)
Moreover, the declaratory judgment claim does not arise out of Mahan's Maryland contacts. The claim contends that Transcontinental is not obligated to provide indemnification under the terms of an insurance policy it provided for Eastern Steel. Mahan is not a party to the policy, and took no actions — in Maryland or otherwise — with respect to its formation, negotiation, or execution. Transcontinental argues that the claim arises out of the subcontract as well as the insurance policy, and jurisdiction is thus proper because the subcontract was executed with a Maryland corporation.
To determine whether this court should exercise jurisdiction over Mahan, two questions should be addressed: first, does the declaratory judgment claim arise out of the subcontract between Mahan and Eastern Steel; and, second, does the mere entering into a contract with a Maryland corporation suffice for jurisdiction when the contract was to be performed in West Virginia and to be governed by West Virginia law.
With respect to the first question, the legal issue in this case concerns plaintiff's obligations under an insurance policy, and not the personal injuries that occurred at the construction project in West Virginia or legal obligations under the concomitant subcontract. Thus, the contacts surrounding the insurance policy, not contacts involving the construction project or the subcontract agreement, must first be examined to determine whether they may serve as the basis for specific jurisdiction. See, e.g., Vetrotex Certainteed Corp. v. Consolidated Fiber Glass Prods. Co., 75 F.3d 147, 153 (3d Cir. 1996) (arguing that the Supreme Court has indicated that the jurisdictional inquiry in contract cases such as this must focus on the "dealings between the parties in regard to the disputed contract") (emphasis in original); RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d 1272, 1278 (7th Cir. 1997) ("We must, of course, draw a line somewhere, and we agree with the Third Circuit that, in a breach of contract case, it is only the `dealings between the parties in regard to the disputed contract' that are relevant to the minimum contacts analysis.") (quoting Vetrotex Certainteed Corp., 75 F.3d at 153) (emphasis in original). Because Mahan had no involvement with the insurance policy, specific jurisdiction on this basis would be improper.
Additionally, because the mere entering into a contract with an in-state corporation does not automatically suffice for specific jurisdiction, the second question must also be answered in the negative. In Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478 (1985) (emphasis in original), the Supreme Court flatly stated: "If the question is whether an individual's contract with an out-of-state party alone can automatically establish sufficient minimum contacts in the other party's home forum, we believe the answer is clearly that it cannot." More precisely, in Diamond Healthcare of Ohio, Inc. v. Humility of Mary Health Partners, 229 F.3d 448, 451 (4th Cir. 2000), the plaintiff attempted to predicate jurisdiction on the fact that the defendant contracted with the in-state plaintiff. In that case, as here, the contract called for performance in another state. Id. Even though the lawsuit arose out of the contract, the Fourth Circuit found no jurisdiction, stating:
The fact that the contract called for the obligations of both parties to be performed mainly in Ohio and to be governed by Ohio law is inconsistent with [plaintiff's] assertion that [defendant] invoked the `benefits and protections' of Virginia law, and with its contention that [defendant] could `reasonably anticipate being haled into court' in Virginia.Id. at 452 (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958), and Worldwide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)) (internal citations omitted). In the instant case, performance of the subcontract was contemplated to occur in West Virginia, and the subcontract explicitly provided that West Virginia law would govern suits arising from it and that such suits should be brought in West Virginia. ( See Am. Compl. Ex. B, Subcontract at 15.)
Ultimately, it was only the act of a third party — Eastern Steel — that resulted in an insurance contract negotiated and executed in Maryland. The law is clear that the unilateral action of a third party cannot create jurisdiction over another. See, e.g., Hanson, 357 U.S. at 253 ("The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State."). Contract cases such as this one require "an individualized and pragmatic inquiry into the surrounding facts [of the contract.]" Johansson Corp. v. Bowness Constr. Co., 304 F. Supp. 2d 701, 705 (D. Md. 2004). That inquiry must decide "whether the contract had a `substantial connection' to the forum state." Id. (quoting Burger King Corp., 471 U.S. at 478). Here, there is no substantial connection between the subcontract and Maryland; any connection whatsoever is mere happenstance resulting from the fact of Eastern Steel's incorporation in Maryland. While the insurance contract may have a substantial connection to Maryland, its initiation, negotiation, and execution are unrelated to Mahan.
The cases relied upon by the plaintiff are easily distinguished. First, in Ajax Realty Corp. v. J.F. Zook, Inc., 493 F.2d 818, 819-820 (4th Cir. 1972), the Fourth Circuit found that Virginia had jurisdiction over a Washington State corporation that sold window frames to a Colorado corporation that subsequently re-sold the frames for installation in a Virginia facility. Jurisdiction was not based on the sale to the Colorado corporation alone, however, but also on the fact that the Washington corporation had shipped samples of the defective frames to Virginia in advance of the re-sale. Id. at 821. After the shipment of sample frames, the Washington corporation had a "reasonable expectation that the frames would be used in Virginia" and thus specific jurisdiction was proper. Id. at 822. Moreover, and contrary to the instant case, Virginia was "the most logical and convenient locus to try the case." Id.
Next, Vishay Intertechnology, Inc. v. Delta International Corp., 696 F.2d 1062, 1069 (4th Cir. 1982), stands for the unremarkable proposition that specific jurisdiction is proper when the "cause of action arises out of the defendant's contacts with the forum state." In that case, the defendant's contacts with North Carolina — telephone calls and written communications — constituted a crucial part of the "unfair practices and contractual relations torts" that were the subject of the lawsuit. Id. at 1067.
Similarly distinguishable as a typical case of specific jurisdiction is Columbia Briargate Co. v. First National Bank in Dallas, 713 F.2d 1052 (4th Cir. 1983). In that case, in which the plaintiff sought to recover damages for fraudulent representations in contract negotiations, the Fourth Circuit found that South Carolina had jurisdiction over a Texas company when the property subject to the contract was in South Carolina and the contract negotiations and execution occurred in South Carolina. Id. at 1053-1058 ("[The vice-president] came to the forum State in order to negotiate a sale of real property located in that State. He conducted such negotiations over a period of time and in the course of those negotiations in the forum State allegedly made various representations . . .").
Finally, August v. HBA Life Insurance Co., 734 F.2d 168 (4th Cir. 1984), is simply inapposite. In that case, a Virginia federal court sought to exercise jurisdiction over an Arizona insurance company to resolve a dispute between the company and its insured. Id. at 169-170. The court appropriately focused on the contacts of the insurance company with the forum state, see id. at 172, and there is no contention in the instant case that either party to the insurance contract is not subject to jurisdiction in Maryland. To the contrary, the question here focuses on the contacts of a third party — Mahan — who had no formal relationship to the disputed insurance contract that underlies the declaratory judgment claim.
Accordingly, I conclude that it is likely that this Court does not have jurisdiction over Mahan. However, instead of dismissing Mahan, which might deprive this Court of a necessary and indispensable party for the resolution of the declaratory judgment, I will order that this portion of the case be transferred to the Southern District of West Virginia for the reasons elucidated in Joseph M. Coleman Associates, Ltd. v. Colonial Metals, 887 F. Supp. 116, 120 (D. Md. 1995). In Colonial Metals, the court was faced with a similarly close jurisdictional question and found that the balance of interests weighed in favor of transferring the case to a district where jurisdiction was clearly proper. See also Johansson Corp., 304 F. Supp. 2d at 709; Tyler v. Gaines Motor Lines, Inc., 245 F. Supp. 2d 730, 734 (D. Md. 2003).
The fairest and most expeditious resolution to the problem presented by this court's lack of personal jurisdiction over Mahan is a transfer of the declaratory judgment count to the Southern District of West Virginia. Similar litigation related to both the subcontract and the insurance contract has been pending in that District for some time, thus ensuring that transfer will move this litigation forward in an efficient manner. Moreover, the interest of justice and the convenience of the parties, see 28 U.S.C. § 1404(a), will be served by having this action decided by the court that is already familiar with the facts, and has already issued rulings implicating the interpretation of the subcontract's indemnification and insurance provisions. ( See Def. Eastern Steel's Mot. to Dismiss Ex. F, Summ. J. Op. and Order.) For the foregoing reasons, I will order that the declaratory judgment count against defendants Mahan, Eastern Steel, and St. Paul be transferred to the Southern District of West Virginia.
Because I conclude that this court likely does not have personal jurisdiction over defendant Mahan and will order the declaratory judgment case transferred to the Southern District of West Virginia, I will not decide Eastern Steel's and St. Paul's motions to dismiss/motions for summary judgment. Those motions are more appropriate for resolution by the court in West Virginia.
II. Grau's Motion for Summary Judgment
With the declaratory judgment count resolved by transfer pursuant to 28 U.S.C. § 1404, I am left only with Transcontinental's substantive damages counts against defendant Grau. Grau contends that these counts must be decided in its favor because they are, in effect, mooted by the insured contract provision of the insurance policy as well as a prior decision by the court in the Southern District of West Virginia.A. The Insured Contract Provision
The insured contract provision of the Transcontinental-Eastern Steel insurance policy excludes from coverage "Bodily Injury" damages "for which the insured is obligated to pay . . . by reason of the assumption of liability in a contract or agreement." (Def. Grau's Mot. to Dismiss Ex. 3, Commercial General Liability Coverage Form, at 1-2 of 14.) After detailing this exclusion, the provision provides that certain damages will be exempted from the exclusion, and thus subject to coverage. That exemption states, in relevant part:
This exclusion does not apply to liability for damages . . . [a]ssumed in a contract or agreement that is an `insured contract', provided the `bodily injury' or `property damage' occurs subsequent to the execution of the contract or agreement. Solely for the purposes of liability assumed in an `insured contract', reasonable attorney fees and necessary litigation expenses incurred by or for a party other than an insured are deemed to be damages because of `bodily injury' or `property damage'. . . .
( Id. at 2 of 14.)
The policy defines "insured contract," in relevant part, as:
That part of any other contract or agreement pertaining to your business . . . under which you assume the tort liability of another party to pay for `bodily injury' or `property damage' to a third person or organization. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement.
( Id. at 11 of 14.)
Grau contends that if Eastern Steel has a contractual obligation to indemnify and defend Mahan, Transcontinental is liable for that obligation pursuant to this provision. This argument is persuasive. Regardless of whether or not Transcontinental is liable to Mahan under an "additional insured" theory, which is the focus of the declaratory judgment claim, the insurance policy's plain language renders Transcontinental liable under an "insured contract" theory. The alleged damages at issue — namely, the costs of coverage and a defense for the underlying lawsuit — are ones that Eastern Steel "[a]ssumed in a contract." ( Id. at 2 of 14.) That contract, the subcontract for the West Virginia bridge project, qualifies as an "insured contract" under policy. ( Id. at 11 of 14 (defining insured contract as one in "which you assume the tort liability of another party").)
The conclusion that the insured contract provision obligates Transcontinental is bolstered by Transcontinental's own reservation of rights letter of February 21, 2007. In that letter, written to Eastern Steel, Transcontinental stated:
[Eastern Steel's] obligation to indemnify and hold harmless Mahan for tort liability falls within the policy's definition of an `insured contract' and, therefore, is an exception to the Policy's contractual liability exclusion. The Agreement between [Eastern Steel] and Mahan is expressly limited to an agreement to indemnify and hold harmless Mahan to the extent of [Eastern Steel's] or any of its officers, agents, employees or servants acts or omissions or negligence and does not include an obligation to indemnify and hold harmless Mahan for anyone else's negligence, or the negligence of Mahan.
(Def. Eastern Steel's Mot. to Dismiss Ex. G, Reservation of Rights Letter, at 6 (emphasis supplied).)
The plain language of the contract and Transcontinental's own apparent admission of liability makes clear that Transcontinental is obligated to indemnify Eastern Steel for tort liability incurred pursuant to the insured (sub) contract with Mahan.
B. The West Virginia Cross-Claim Ruling
Moreover, the ruling on Mahan's cross-claim by the United States District Court for the Southern District of West Virginia has definitively established Eastern Steel's liability to Mahan for the damages in question. The West Virginia Court squarely ruled that Eastern Steel's contract with Mahan created an obligation of coverage and defense, and that the damages from the underlying lawsuit fell within that obligation. In relevant part, the Court stated:
Based on the plain terms of the subcontractor, [ sic] therefore, C.J. Mahan is due contractual indemnification if it can show that it suffered a loss or claim that is attribtuable to Eastern [Steel]. . . . Here, C.J. Mahan has provided evidence which does just that. . . . Testimony from two Eastern [Steel] employees working as foremen at the time of the accident demonstrate . . . that the accident must have been a result of the rigging and/or spotting, for which Eastern [Steel] clearly owed C.J. Mahan indemnification. . . . The combined sum of this evidence is sufficient to show that the accident occurred as a result of actions or omissions during rigging or spotting, situations where Eastern [Steel] is contractually bound to indemnify C.J. Mahan. . . . What becomes clear from the evidence is that no rational trier of fact could attribute the cause of the accident to acts or omissions of C.J. Mahan or its employees. Under the terms of the contract, [Mahan] is therefore owed indemnification from Eastern [Steel].
(Def. Eastern Steel's Mot. to Dismiss Ex. F, Summ. J. Op. and Order, at 7-10 (emphasis supplied).)
This ruling clearly indicates that Eastern Steel's employees or agents were responsible for the accident underlying the lawsuit, and that the damages incurred by Mahan are covered by the indemnification provisions of the subcontract.
C. Consequences of the Insured Contract Provision and the West Virginia Decision
Grau notes that the insured contract provision requires Transcontinental to cover Eastern Steel's contractually incurred tort damages, and that the West Virginia decision definitively ruled that Eastern Steel is contractually liable for the damages at issue. Accordingly, Grau argues, Transcontinental has suffered no loss attributable to Grau's actions because Transcontinental is liable regardless of whether or not Mahan was an additional insured under the policy.
It is evident from the face of the insurance policy that Transcontinental is obligated to indemnify Eastern Steel for the damages it owes to Mahan. Consequently, in conjunction with the West Virginia decision that the subcontract between Mahan and Eastern Steel created an obligation for Eastern Steel to hold Mahan harmless from liability, Transcontinental owes Mahan coverage and a defense. Thus, Grau's alleged issuance of certificates of insurance pursuant to the additional insured provision has no causal relationship with Transcontinental's legal obligations and concomitant financial outlays. Transcontinental repeatedly emphasizes that the court in West Virginia did not decide the insurance coverage question at issue here. And that is true enough. But because the plain import of the insured contract provision is to require Transcontinental to indemnify Eastern Steel for tort liability incurred pursuant to an insured contract like the subcontract in question, Grau's alleged wrongful acts with respect to the additional insured provision caused no injury to Transcontinental. Consequently, the claims against Grau must fail.
CONCLUSION
For the reasons discussed above, I will order the declaratory judgment count against defendants Mahan, Eastern Steel, and St. Paul be transferred to the United States District Court for the Southern District of West Virginia. Additionally, I will grant defendant Grau's motion for summary judgment. A separate order effecting the rulings made in this Memorandum is being entered herewith.
ORDER
For the reasons stated in the accompanying Memorandum Opinion, it is hereby ORDERED that:1. Defendant C.J. Mahan Construction Company's motion to dismiss for lack of personal jurisdiction or, in the alternative, for transfer to the Southern District of West Virginia (docket entry no. 15) is Granted in part and Denied in part;
2. Defendant St. Paul Fire Marine Insurance Company's motion to dismiss or, in the alternative, to stay the proceedings (docket entry no. 16) is Denied;
3. Defendant Eastern Steel Constructors, Inc.'s motion to dismiss or, in the alternative, for transfer to the Southern District of West Virginia (docket entry no. 21) is Granted in part and Denied in part;
4. Defendant Bruce F. Grau Associates, Inc.'s ("Grau") motion to dismiss or, in the alternative, for summary judgment (docket entry no. 24), treated as a motion for summary judgment, is Granted;
5. Judgment is entered in favor of the defendant Grau on Counts II, III, and IV of the Amended Complaint;
6. Count I of the Amended Complaint, as to all parties other than Grau, is TRANSFERRED to the United States District Court for the Southern District of West Virginia; and
7. The Clerk shall CLOSE this case.