The opinion of the court was delivered by: Joyner, J.
This civil action has been brought before the Court on Motion of the Defendant, Monica Mukherjee, M.D. to Dismiss the Plaintiff's Complaint for Lack of Personal Jurisdiction. Based upon the rationale set forth below, the Motion shall be granted in part and denied in part.
The instant case is one of a series of lawsuits commenced on June 4, 2010 by Plaintiff, the American Board of Internal Medicine ("ABIM") against several individual physicians who it alleged had copied and disseminated its "secure, copyrighted Examination items" from its Certifying Examination in Internal Medicine.*fn1 Immediately prior to the filing of these actions, the plaintiff settled the action which it had instituted some six months earlier against Dr. Rajender Arora and the Arora Board Review with the entry of a permanent injunction by consent. That injunction forever prohibited the named defendants and their agents, officers, servants and/or employees from creating, reproducing, copying, distributing, selling and otherwise using or displaying "any materials of any kind and in any medium that infringe ABIM's copyrights in its Certifying Examinations and/or Maintenance of Certification Examinations in Internal Medicine and/or any subspecialties of Internal Medicine..." See, e.g., Permanent Injunction filed June 11, 2010 in ABIM v. Arora, et. al., No. 09-CV-5707 (Dkt. No. 23).
As in its complaints in the other actions, Plaintiff here asserts that Defendant Mukherjee wilfully infringed and misappropriated its trade secret, copyright-protected board certification examination questions by emailing some 500 of the examination questions which she and her friends had assembled from the August 17, 2009 certification examination to Dr. Arora. Plaintiff avers that Dr. Mukherjee knew that such actions were unlawful and in breach of ABIM's "Pledge of Honesty" which she electronically signed prior to taking the examination and "in which she promised not to disclose, copy or reproduce any portion of the material contained in the Examination. At the conclusion of the Examination, Mukherjee was reminded that sharing information about the Examination undermines the certification process and that ABIM would impose severe penalties on anyone who engaged in such improper conduct." (Complaint, ¶36).
Because Dr. Mukherjee alleges that she is a resident of Washington, D.C. and a permanent citizen of Florida, she contends that this Court does not have in personam jurisdiction in this matter. She therefore moves to dismiss the complaint in its entirety pursuant to Fed. R. Civ. P. 12(b)(2).
Standards Applicable to Rule 12(b)(2) Motions
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, 1567, 143 L. Ed. 2d 760 (1999). "Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause." Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94, 118 S. Ct. 1003, 1012, 140 L. Ed. 2d 210 (1998), quoting Ex parte McCardle, 7 Wall. 506, 514, 19 L. Ed. 264 (1868). Hence, the validity of an order of a federal court depends upon the court's having jurisdiction over both the subject matter and the parties. Insurance Corporation of Ireland v. Compagnie Des Bauxites, 456 U.S. 694, 701, 102 S. Ct. 2099, 2103, 72 L. Ed. 2d 492 (1982), citing, inter alia, Stoll v. Gottlieb, 305 U.S. 165, 171-172, 59 S. Ct. 134, 137-138, 83 L. Ed. 104 (1938).
A defendant has the burden of raising the defense of lack of personal jurisdiction; failure to do so renders it waived. TES Franchising, LLC v. Dombach, 2010 U.S. Dist. LEXIS 130314, at *3 (E.D. Pa. Dec. 9, 2010); Poole v. Sasson, 122 F. Supp. 2d 556, 557 (E.D. Pa. 2000); Fed. R. Civ. P. 12(h)(1). Under Fed. R.Civ. P. 12(b)(2), the defense of insufficient personal jurisdiction may be raised by filing a motion for dismissal. Should that occur, the plaintiff bears the burden of establishing the court's jurisdiction over the moving defendant(s) by affidavits or other competent evidence. Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324, 330 (3d Cir. 2009); Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 368 (3d Cir. 2002); Dayhoff, Inc.v. H.J. Heinz Co., 86 F.3d 1287, 1302 (3d Cir. 1996). If the court does not hold an evidentiary hearing on the motion, the plaintiff need only establish a prima facie case of personal jurisdiction. Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 97 (3d Cir. 2004). Moreover, "it is well established that in deciding a motion to dismiss for lack of jurisdiction, a court is required to accept the plaintiff's allegations as true and is to construe disputed facts in favor of the plaintiff." Metcalfe, supra, quoting Toys "R" Us, Inc. v. Step Two, S.A., 318 F.3d 446, 457 (3d Cir. 2003).
Under Fed. R. Civ. P. 4(e), a federal district court may assert personal jurisdiction over a nonresident of the state in which the court sits to the extent authorized by the law of that state. Eurofins Pharma U.S. Holdings v. Bioalliance Pharma, 623 F.3d 147, 155 (3d Cir. 2010). Whether a district court has personal jurisdiction over a nonresident defendant is a two-part inquiry. Id. First, there must be a statutory basis for exercising jurisdiction over the nonresident defendant in accordance with the law of the forum state; second, the nonresident must have minimum contacts with the forum state sufficient to satisfy constitutional due process. Id., citing Metcalfe, 566 F.3d at 330. In Pennsylvania, the long arm statute provides that its courts' jurisdiction, in addition to existing over a person who transacts any business, does any act, owns any property, etc.,"...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."
42 Pa. C. S. A. §5322(b). Thus, Pennsylvania's long arm statute has been interpreted as authorizing Pennsylvania courts to exercise personal jurisdiction over nonresident defendants to the constitutional limit of the due process clause of the fourteenth amendment. Wolk v. Teledyne Industries, Inc., 475 F. Supp. 2d 491, 503 (E.D. Pa. 2007), citing Mellon Bank (East) PSFS Nat'l Assn. v. Farino, 960 F.2d 1217, 1221 (3d Cir. 1992).
There are two types of personal jurisdiction - general jurisdiction and specific jurisdiction. D'Jamoos v. Pilatus Aircraft, Ltd., 566 F.3d 94, 102 (3d Cir. 2009). 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). 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 World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980) and Vetrotex Certainteed Corp. v. Consol. Fiber Glass Products Co., 75 F.3d 147, 151 n.3 (3d Cir. 1996). Such a determination is claim specific because a conclusion that the District Court has jurisdiction over one of the defendants as to a particular claim does not necessarily ...