The opinion of the court was delivered by: Joyner, J.
This is yet another civil action commenced by the American Board of Internal Medicine ("ABIM") against an individual physician seeking injunctive relief and money damages for the improper disclosure and dissemination of ABIM's copyright and/or trade secret-protected board certification examination questions.*fn1 By the motion which is now before us, Defendant Anastassia Todor, M.D. moves for the dismissal of this action on the grounds that this court lacks the requisite in personam jurisdiction to proceed further.
The plaintiff avers in its Second Amended Complaint that some two weeks before taking the August 2008 Internal Medicine
Certifying Examination, Defendant Anastassia Todor, M.D. "knowingly gathered and collected hundreds of actual ABIM examination questions from Examinees who had already taken the August 2008 Examination.*fn2 Defendant allegedly then forwarded these exam questions to the Arora Board Review ("ABR"), a test-preparation course and in return received from ABR still additional ABIM examination materials. (Second Amended Complaint,
¶1). According to ABIM, it repeatedly notifies candidates for Board Certification that it is the owner of the Examination and that the Exam is a copyrighted work that may not be reproduced. Such notification is given by, inter alia, the candidate's required acceptance of ABIM's "Policies and Practices for Certification" at the time they register for an examination, and by the electronic signing of ABIM's "Pledge of Honesty" which appears on applicants' computer screens immediately prior to the start of, and which is a pre-condition to, the taking of each examination. (Second Amended Complaint, ¶s18-20; Langdon Declaration, ¶9). An additional warning that ABIM will impose severe penalties on any candidates who violate the Pledge of Honesty is again given at the end of each examination. (Second
Amended Complaint, ¶21). Thus, Plaintiff submits, Defendant Todor's conduct constitutes willful copyright infringement in violation of the Copyright Act, 17 U.S.C. §101, et. seq. and willful and malicious misappropriation of trade secrets under 12 Pa.C.S.A. §5302-5304.
As noted, Defendant Todor moves for the dismissal of this action in its entirety on the grounds that this Court lacks the necessary personal jurisdiction over her to proceed further. Specifically, Dr. Todor avers the following pertinent facts: (1) she is currently a resident of the state of Colorado, (2) that at the time she registered for and took the examination she was residing in Michigan, (3) that she registered for the examination online using her computer in Michigan, (4) that she took the exam at an independent testing center located in Troy, Michigan, and
(5) that she has never been to and has no other contacts whatsoever with the Commonwealth of Pennsylvania.
In response, the plaintiff asserts that because its "investigation has confirmed that the content of Dr. Todor's email originated from a physician located in Pennsylvania, who sat for his ABIM examination in Pennsylvania and who copied, disclosed and disseminated questions from his Internal Medicine Examination while in Pennsylvania," it has established a prima facie case of personal jurisdiction entitling it to "have its allegations taken as true and all factual disputes drawn in its favor," and to conduct jurisdictional discovery. (Plaintiff's Memorandum of Law in Opposition to Defendant's Motion to Dismiss, pp. 5, 7).
Standards Applicable to Rule 12(b)(2) Motions
It is undisputed that 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). To be sure, "[w]ithout 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). For these reasons, 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 to dismiss. Once such motion is filed, 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). However, given that the plaintiff has a burden of proof to sustain, mere affidavits which parrot and do no more than restate plaintiff's allegations without identification of particular defendants and without factual content do not end the inquiry. Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 66 (3d Cir. 1984). 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). Finally, "it is well established that in ...