Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
BARRETT v. CATACOMBS PRESS
April 12, 1999
STEPHEN BARRETT, M.D., PLAINTIFF,
THE CATACOMBS PRESS, JAMES R. PRIVITERA, M.D., ALAN STANG, M.A., DARLENE SHERRELL, AND CDS NETWORKS INC., DEFENDANTS.
The opinion of the court was delivered by: Van Antwerpen, District Judge.
Plaintiff Stephen Barrett filed this action under
Pennsylvania's defamation law, against Defendants the Catacombs
Press, James R. Privitera, Alan Stang, Darlene Sherrell and CDS
Network, Inc. We have jurisdiction over this diversity action
pursuant to 28 U.S.C. § 1332.
Defendant Darlene Sherrell has independently moved to dismiss
this suit pursuant to Fed.R.Civ.P. 12(b)(2) for lack of
personal jurisdiction. We have reviewed the record and conclude
that for the following reasons, this court cannot exercise
personal jurisdiction over Defendant Darlene Sherrell.
Plaintiff in this case is a resident and psychiatrist in
Allentown, Pennsylvania. Decl. Barrett 3/5/99 at ¶¶ 1-2. Since
1969, he has been involved in investigating and dealing with
many aspects of quackery, health frauds, misinformation and
consumer strategy. Id. at ¶ 4. He has also been responsible for
writing, co-authoring or editing over 200 publications relating
to consumer health. Id. Since December 1996, Plaintiff has
maintained a computer Web site called Quackwatch, which
provides information about quackery, health frauds and consumer
decisions. Id. at ¶ 6. Plaintiff's Web site has received
international acclaim, with more than fifty awards and/or
favorable mentions in newspapers,
magazines and journals throughout the world.
Only about 1% of the Quackwatch Web site addresses the
fluoridation debate through its "Fluoridation: Don't Let the
Poisonmongers Scare You" page. Id. at ¶ 7. This Web site also
provides hypertext links to other Web sites that promote
fluoridation of public water sources. Decl. Sherrell 4/2/99 at
¶ 4. Although Plaintiff has participated in these activities
and has edited a book and a few articles that mention
fluoridation, he claims that he has not been involved in
promoting fluoridation nationally. Decl. Barrett 3/5/99 at ¶ 5.
Subsequently, the alleged defamatory statements appeared on
Defendant's Web site. Id. at ¶ 10. Plaintiff sent her an e-mail
threatening a lawsuit after seeing her Web site. Id. Defendant
responded by making some modifications to her Web site and
informing Plaintiff of this action via e-mail. Id. at ¶ 11.
Plaintiff claims that such modifications made it clear that she
was quoting from Mr. Privitera's book, which is available
worldwide. Decl. Sherrell 4/2/99 at ¶ 6.
Plaintiff also alleges that Defendant subsequently posted
messages with a hypertext link back to her Web site on several
listserves or USENET discussion groups including: (1) a Dental
Public Health list maintained by a computer at the University
of Pittsburgh, which has national distribution; (2) to the
owner of the Chiro-List which has about 350 chiropractors
across the country; (3) at "sci.med.dentistry"; (4) at
"misc.health.alternative," a USENET group that is believed to
have tens of thousands of participants; and (5) at
"misc.kids.health," a USENET news group that probably has
thousands of participants. Decl. Barrett 3/5/99 at ¶¶ 12-21. In
December, Defendant opened another Web site which Plaintiff
alleges is dedicated to "attacking me and several colleagues."
Id. at ¶ 22. Plaintiff alleges that he has "good reason to
believe that she posted a total of at least 90 messages to at
least 12 USENET news groups, with total membership in the tens
of thousands, and that many of these messages encouraged people
to visit one or more [of] her sites that contained defamatory
statements about me." Id. at ¶ 23. Plaintiff, however, has not
offered any evidence to support this allegation.
Defendant is closely associated with individuals who are
interested in advocating against the fluoridation of water
sources throughout the United States. Id. at ¶ 27. Defendant
states that she has never been physically present in the
Commonwealth of Pennsylvania except to pass through the state a
few times, more than ten years ago.*fn2 Decl. Sherrell 2/18/99
at ¶ 6. She also alleges that the information which she has
posted on the World Wide Web "was not targeted to the
Commonwealth of Pennsylvania" and that her activity was part of
a larger public debate on fluoridation issues. Id. at ¶¶ 8-11;
see also Decl. Sherrell 4/2/99 at ¶¶ 9-10.
Defendant Darlene Sherrell has moved to dismiss Plaintiff's
Complaint pursuant to Fed.R.Civ.P. 12(b)(2) by arguing that
this court lacks personal jurisdiction. When a motion to
dismiss under Fed.R.Civ.P. 12(b)(2) is filed, the burden falls
upon the plaintiff to come forward with sufficient facts to
establish a prima facie case in favor of personal jurisdiction.
Carteret Savings Bank, FA v. Shushan, 954 F.2d 141, 146 (3d
Cir. 1992). To the extent that a defendant files opposing
affidavits or depositions, a plaintiff may not rest on mere
allegations in the complaint but must support such
jurisdictional allegations with appropriate affidavits or other
evidence. See Time Share Vacation Club v. Atlantic Resorts,
Ltd., 735 F.2d 61, 66-67 n. 9 (3d Cir. 1984). Any conflict of
facts between the plaintiff and defendant are to be resolved in
favor of the plaintiff. TJS Brokerage & Co., Inc. v. Mahoney,
The applicable law has been stated many times. Pursuant to
Fed.R.Civ.P. 4(e), federal courts are authorized to exercise
personal jurisdiction over a nonresident to the extent
permitted by law of the state where the action is brought.
Provident Nat'l Bank v. California Fed. Sav. & Loan Ass'n,
819 F.2d 434, 436 (3d Cir. 1987). Federal courts follow a two-step
analysis to determine if personal jurisdiction is proper: (1)
if jurisdiction is proper under the forum's long-arm statute;
and (2) the exercise of personal jurisdiction over the
defendant comports with due process under the U.S.
Accordingly, we look to the Pennsylvania Long-Arm Statute, 42
Pa. C.S.A. § 5322, to determine whether facts or circumstances
exist to require the defendants to answer in this forum.
Section 5322(a)(4) states that the long-arm statute extends to
a person who causes "harm or tortious injury by an act or
omission in this Commonwealth." It also states that personal
jurisdiction "shall extend to all persons . . . to the fullest
extent allowed under the Constitution of the United States and
may be based on the most minimum contact with this Commonwealth
allowed under the Constitution of the United States." 42 Pa.
C.S.A. § 5322(b). Thus, the two-step inquiry collapses into one
coextensive with the due process clause of the United States
Constitution because "[t]he Pennsylvania statute permits the
courts of that state to exercise personal jurisdiction over
nonresident defendants to the constitutional limits of the due
process clause of the fourteenth amendment." See, e.g., Mellon
Bank (East) PSFS, Nat'l Ass'n v. Farino, 960 F.2d 1217, 1221
(3d Cir. 1992); Empire Abrasive Equipment v. H.H. Watson, Inc.,
567 F.2d 554, 556 n. 1 (3d Cir. 1977).
General jurisdiction permits a court to exercise personal
jurisdiction over a nonresident defendant when "that party can
be called to answer any claim against her, regardless of
whether the subject matter of the cause of action has any
connection to the forum." Mellon Bank, 960 F.2d at 1221.
General jurisdiction can even be exercised over non-forum
related activities when the defendant has engaged in
"systematic and continuous" activities in the forum state, see
Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408,
414-16, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). On the other
hand, specific jurisdiction arises when the relationship
between "the defendant, the cause of action, and the forum
falls within the `minimum contacts' framework first announced
in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct.
154, 90 L.Ed. 95 (1945), and later refined by the abundant
progeny of that landmark case." Mellon Bank, 960 F.2d at 1221.
We agree with the Defendant that general jurisdiction is
clearly inapplicable in this case. General jurisdiction is
normally invoked when a defendant has "systematic and
continuous" contacts with the forum state, which include
participating in a consecutive series of activities from within
the forum state. In Helicopteros Nacionales, for example, the
Court denied general jurisdiction, finding that the defendant
did not have sufficient "systematic and continuous" contact
with the forum state, although it had purchased millions of
dollars worth of products, negotiated a contract and even
trained employees from within the forum state. 466 U.S. at 418,
104 S.Ct. 1868. These contacts must be "so substantial and of
such a nature as to justify suit against it on causes of action
arising from dealings entirely distinct from those activities."
International Shoe, 326 U.S. at 318, 66 S.Ct. 154. Although
Plaintiff attempts to argue that the Defendant's activities on
the Web which were nationally accessible amounted to
"systematic and continuous contact"
with Pennsylvania, they do not cite any cases supporting this
proposition. If anything, the Third Circuit has consistently
held that national publications do not constitute "continuous
and substantial contacts" with the forum state. Gehling v. St.