The opinion of the court was delivered by: DUBOIS
Defendant Lovella Hebert ("Ms. Hebert" or "defendant Hebert") moves for dismissal of Count III of plaintiff's Complaint on three grounds: 1) pursuant to Federal Rule of Civil Procedure 12(b)(2), because this Court lacks personal jurisdiction over Ms. Hebert; 2) pursuant to Federal Rule of Civil Procedure 12(b)(6), because the alleged defamatory statements were absolutely privileged under a judicial privilege or conditionally privileged as a communication between employer and employee; and alternatively, 3) pursuant to Federal Rule of Civil Procedure 12(b)(6), because the defamation claim is barred by Pennsylvania's statute of limitations.
This case arises out of plaintiff's termination, on October 11, 1995, from his position at defendant Ashland Chemical Company ("Ashland"). At the time of the events described in the Complaint, plaintiff and defendant Hebert were both employed by defendant Ashland; plaintiff was Ashland's sales District Manager for a region encompassing Maryland, Virginia, Delaware, Southern New Jersey, and Southeastern Pennsylvania and Ms. Hebert worked as a secretary in Ashland's Virginia office which had oversight responsibilities for that region. Plaintiff currently resides in Pennsylvania.
Plaintiff's Complaint - originally filed in the Court of Common Pleas of Philadelphia County on July 14, 1997 and removed by defendant Ashland to this Court on August 6, 1997 - names Lovella Hebert and Ashland Chemical Company as defendants and alleges that his termination was a result of age discrimination; he thus asserts claims under Pennsylvania's Human Relations Act, 43 Pa.S.C.A. § 951, et. seq. (Count I) and under the Age Discrimination in Employment Act, 29 U.S.C. § 621, et. seq. (Count II).
In Count III of his Complaint, Plaintiff alleges that he was defamed by defendant Hebert when she lied by stating, "among other things," that:
she became aware of plaintiff's practice of billing personal phone calls to the company; that plaintiff extended a customer sailing outing . . . for three extra days of personal use, charging the company for the extra rental; that . . . plaintiff charged [another] sailing trip to the company when there were only two company customers present, contrary to the list of customers turned in by plaintiff; that . . . she repeatedly asked plaintiff to respond to requests for help from a major customer when it experienced a spill at its facility, but that plaintiff would not respond to the requests; that plaintiff would take personal time away from the office but would do this on office time . . .; and that plaintiff improperly submitted expense reports stating that he had lunch with defendant on dates she claims she was not with him.
Plaintiff's Complaint, P 48. These statements were allegedly first made to representatives of Ashland "who used such statements as a basis for firing plaintiff." Id. at P 50. The statements were then "republished" to the PHRC, see id. at P 51, in the form of an affidavit sworn by Ms. Hebert and captioned to the "Commonwealth of Pennsylvania Governor's Office Pennsylvania Human Relations Commission." See Affidavit of Lovella Hebert, dated May 20, 1996, attached as Exhibit B to plaintiff's Response to Defendant Lovella Hebert's Rule 12(b)(6) Motion to Dismiss.
By his own affidavit, submitted in response to defendant Hebert's Motion to Dismiss, plaintiff avers that approximately 25-30% of defendant Hebert's "activities as a secretary in the Virginia Beach[, Virginia] office concerned Pennsylvania customers." Affidavit of Mark Giusto, dated November 13, 1997, P 4. These activities included telephone contacts with Pennsylvania customers and weekly telephone conversations with a secretary based in Ashland's Pittsburgh office. In addition, plaintiff claims that Ms. Hebert's affidavit, submitted to the PHRC, mentioned various Pennsylvania-based activities and further demonstrated her Pennsylvania contacts. Id. at P 5. In her Motion to Dismiss, Ms. Hebert asserts that the affidavit sworn to by her and eventually submitted to the PHRC was prepared by her at the request of Ashland and then "submitted to Ashland." Affidavit of Lovella Hebert, dated October 21, 1997 at P 9.
Normally, "where a court is asked to rule on a combination of Rule 12 defenses, it should pass on the jurisdictional issues first." Friedman v. Israel Labour Party, 957 F. Supp. 701, 706 (E.D. Pa. 1997) (citing 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure Civil 2d § 1351, 243-44 (1987)). The Court will, therefore, examine defendant's Rule 12(b)(2) motion first.
Under Federal Rule of Civil Procedure 4(e) a federal court may exercise personal jurisdiction to the same extent allowed by the state in which the court sits. Pennsylvania law provides for the exercise of personal jurisdiction to "the fullest extent allowed under the Constitution of the United States and [it] may be based on the most minimum contacts allowed under the Constitution of the United States." 42 Pa.C.S.A. § 5322(b) (West 1981). "Thus, the reach of the Pennsylvania statute is coextensive with the due process clause of the United States Constitution." Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 63 (3d Cir. 1984).
In this circuit, a plaintiff may not rest upon the bare allegations of his or her pleadings in defending against a motion to dismiss brought pursuant to Rule 12(b)(2). "Once the defense has been raised, then the plaintiff must sustain its burden of proof in establishing jurisdictional facts through sworn affidavits or other competent evidence. . . . Plaintiff must respond with actual proofs, not mere allegations." Id. at 67 n.9.
There are two ways in which a federal court may obtain personal jurisdiction over a ...