The opinion of the court was delivered by: Joyner, J.
This action is presently before this Court for adjudication of the Defendant's Motion to Dismiss the Plaintiff's Complaint for Lack of Personal Jurisdiction (Doc. No. 9). For the reasons which follow, the motion shall be granted and the complaint dismissed.
Statement of Pertinent Facts
The plaintiff, the American Board of Internal Medicine (hereinafter "ABIM" or "Board") commenced this lawsuit on June 4, 2010 seeking injunctive relief and monetary damages from the defendant Dr. Frederick Oni under the theories of breach of contract and copyright/trademark infringement. Specifically, the complaint alleges that Dr. Oni knowingly and wilfully infringed and misappropriated Plaintiff's trademark and copyright-protected board certification examination questions by first purchasing test questions from Arora Board Review ("ABR"), a test-preparation course company, and then subsequently copying and distributing to ABR actual ABIM Gastroenterology Examination questions shortly after taking the exam himself and providing copies of still additional questions from a friend. Insofar as Dr. Oni is a resident of Georgia whose only alleged nexus to Pennsylvania consists of his sporadic contacts with the Board for purposes of re-certifying his credentials, Defendant moves to dismiss the complaint for lack of in personam jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2).
Standards Governing Fed. R. Civ. P. 12(b)(2) Motions
It is axiomatic that the validity of an order of a federal court depends upon that court's having jurisdiction over both the subject matter and the parties. Insurance Corp. of Ireland, Ltd. v. Compagnie Des Bauxites, 456 U.S. 694, 701, 102 S.Ct. 2099, 2103, 72 L.Ed. 2d 492 (1982). Stated otherwise, jurisdiction to resolve cases on the merits requires both authority over the category of claim in suit (subject matter jurisdiction) and authority over the parties (personal jurisdiction) so that the court's decision will bind them. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577, 119 S.Ct. 1563, 1566, 143 L.Ed. 2d 760 (1999). However, unlike the concept of subject matter jurisdiction which is both an Article III and a statutory restriction on the power of the federal courts to hear a matter and which may be raised at any time during the proceedings, the concept of personal jurisdiction flows instead from the Due Process Clause and thereby recognizes and protects an individual liberty interest. Insurance Corp. of Ireland, 456 U.S. at 702, 102 S.Ct. at 2104. See also, Fed. R. Civ. P. 12(h)(3). Because the requirement of personal jurisdiction represents an individual right, it can, like other such rights, be waived and is waived by a party's failure to raise it by Rule 12(b) motion or including it in a responsive pleading. Id., 456 U.S. at 703, 102 S.Ct. at 2105; Fed. R. Civ. P. 12(h)(1).
According to Fed. R. Civ. P. 12(b)(2), a court must grant a motion to dismiss if it lacks personal jurisdiction. Leone v. Cataldo, 574 F. Supp. 2d 471, 477 (E.D. Pa. 2008). Once the defendant raises the question of personal jurisdiction, the plaintiff bears the burden to prove, by a preponderance of the evidence, facts sufficient to establish personal jurisdiction. Carteret Savings Bank, F.A. v. Shushan, 954 F.2d 141, 146 (3d Cir. 1992); Penn Mutual Life Insurance Co. v. BNC National Bank, Civ. A. No. 10-CV-625, 2010 U.S. Dist. LEXIS 91362 at *3 (E.D. Pa. Sept. 2, 2010). In cases where the District Court does not hold an evidentiary hearing on the motion to dismiss, the plaintiff need only establish a prima facie case of personal jurisdiction and the plaintiff is entitled to have its allegations taken as true and all factual disputes drawn in its favor. Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 97 (3d Cir. 2004).
Fed. R. Civ. P. 4(k)(2) provides that personal jurisdiction may be established for claims arising under federal law via the service of "... a summons or filing a waiver of service ... if the defendant is not subject to jurisdiction in any state's courts of general jurisdiction; and exercising jurisdiction is consistent with the United States Constitution and laws." This is generally understood as permitting the district courts to assert personal jurisdiction over a non-resident of the state to the extent authorized and allowed by the law of the state where the district court sits. Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324, 330, (3d Cir. 2009); Time Share Vacation Club, 735 F.2d 61, 63 (3d Cir. 1984). Under Pennsylvania law, more specifically its long-arm statute, 42 Pa. C. S. §5322(b), [i]n addition to the provisions of subsection (a) the jurisdiction of the tribunals of this Commonwealth shall extend to all persons who are not within the scope of section 5301 (relating to 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.
The constitutional requirement of due process also mandates that a defendant have sufficient "minimum contacts" with the forum state such that the exercise of jurisdiction over that defendant comports with "traditional notions of fair play and substantial justice." Wolk v. Teledyne Industries, Inc., 475 F. Supp. 2d 491, 501 (E.D. Pa. 2007), quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 2d 95 (1945). "Minimum contacts must have a basis in some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Asahi Metal Industries Co. v. Superior Court of California, 480 U.S. 102, 109, 107 S.Ct. 1026, 94 L.Ed. 2d 92 (1987); Wolk, 475 F. Supp. 2d at 501. Indeed, having minimum contacts with another state provides "fair warning" to a defendant that he or she may be subject to suit in that state. Marten v. Godwin, 499 F.3d 290, 296 (3d Cir. 2007). As a threshold matter then, the defendant must have taken "action purposefully directed toward the forum State," though the defendant's physical entrance into the forum is not necessary to meet this requirement. D'Jamoos, Estate of Weingeroff v. Pilatus Aircraft, 566 F.3d 94, 103 (3d Cir. 2009); Metcalfe, 566 F.3d at 334, quoting Asahi, 480 U.S. at 112 and Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 370 (3d Cir. 2002).
Furthermore, personal jurisdiction may be exercised on the basis of either a defendant's general contacts (general jurisdiction) or its claim-specific contacts (specific jurisdiction) with the forum. See, e.g., Wolk, 475 F. Supp. 2d at 501. General jurisdiction is based upon the defendant's "continuous and systematic" contacts with the forum and exists even if the plaintiff's cause of action arises from the defendant's non-forum related activities. Remick v. Manfredy, 238 F.3d 248, 255 (3d Cir. 2001), citing Vetrotex Certainteed Corp. v. Consol. Fiber Glass Products Co., 75 F.3d 147, 151 n.3 (3d Cir. 1996). In contrast, specific jurisdiction is present only if the plaintiff's cause of action arises out of a defendant's forum-related activities, such that the defendant "should reasonably anticipate being haled into court" in that forum. Id., quoting in part World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed. 2d 490 (1980). Such determinations of specific jurisdiction are claim specific because a conclusion that the District Court has jurisdiction over one of the defendants as to a particular claim does not necessarily mean that it has personal jurisdiction over that same defendant as to another claim. Remick, 238 F.3d at 255. See also, Marten, 499 F.3d at 296 ("Because this [specific jurisdiction] analysis depends on the relationship between the claims and contacts, we generally evaluate specific jurisdiction on a claim-by-claim basis." [citing Remick, 238 F.3d at 255-256]).
The Third Circuit has recognized two "tests" for ascertaining whether a defendant has the required minimum contacts to support the exercise of personal jurisdiction over him. See, e.g., Penn Mutual Life Insurance Company v. BNC National Bank, Civ. A. No. 10-625, 2010 U.S. Dist. LEXIS 91362 at *5 (E.D. Pa. Sept. 2, 2010). Under the "traditional test," which may be applied in any case, the inquiry as to whether specific jurisdiction exists has three parts. O'Connor v. Sandy Lane Hotel Co., Ltd., 496 F.3d 312, 317 (3d Cir. 2007). First, the defendant must have "purposefully directed its activities" at the forum. Id., citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed. 2d 528 (1985). Second, the litigation must "arise out of or relate to" at least one of those activities. Id., citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 444, 104 S.Ct. 1868, 80 L.Ed. 2d 404 (1984). And third, if the prior two requirements are met, a court considers whether the exercise of jurisdiction otherwise "comports with 'fair play and substantial justice.'" Id.
Although similar, under the so-called "effects test" first enunciated in Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed. 2d 804 (1984), the courts look to whether or not the effects of a defendant's actions have been felt in the forum state. Under Calder, a plaintiff may demonstrate personal jurisdiction if he or she shows:
(1) The defendant committed an intentional tort; (2) The plaintiff felt the brunt of the harm in the forum such that the forum can be said to be the focal point of the harm suffered by the plaintiff as a result of that tort; (3) The defendant expressly aimed his tortious conduct at the forum ...