The opinion of the court was delivered by: Memorandum Yohn, J.
Plaintiff, Diane Patchen, brings this action against defendants Trevor McGuire, Eatsleepmusic Corp. ("ESM"), Shanda Lancaster Maddox, Laurence Dickerson, and Catherine Loudon alleging civil conspiracy, intentional infliction of emotional distress ("IIED"), defamation, and copyright infringement. Before me are defendants' individual motions to dismiss the second amended complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) and for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2), as well as Patchen's motion for severance and transfer of the claims against Maddox and Dickerson.
For the reasons set out below, I will dismiss Patchen's case in its entirety against ESM, McGuire, Maddox, Dickerson, and Loudon for lack of personal jurisdiction. I will deny her motion for severance and transfer against Maddox and Dickerson because severance and transfer are not "in the interest of justice."*fn1 28 U.S.C. § 1404(a).
I. FACTUAL AND PROCEDURAL BACKGROUND
Patchen's claims stem from her involvement, beginning in 2006, with an online karaoke website called "singsnap.com" ("Singsnap"). (2d Am. Compl. ¶ 11.) ESM owns and operates Singsnap and McGuire is the president and chief executive officer of Singsnap. (Id. ¶ 13.) ESM is a Canadian corporation with its principal place of business in Ontario, Canada. (Id. ¶ 5.) McGuire also resides in Ontario. (Id. ¶ 4.) Patchen alleges that McGuire informed her that, as of 2010, forty percent of Singsnap's approximately one million users were United States residents; Patchen also claims that she is aware of "numerous Singsnap site users" residing in Pennsylvania. (Id. ¶ 13.)
From 2006 to February 2010, Patchen performed various volunteer services for ESM from her home in Pennsylvania. (Id. ¶ 16.)She was compensated "in-kind," in that ESM provided her free services on Singsnap. (Id. ¶ 17.) While volunteering for ESM, Patchen became acquainted with McGuire; they engaged in extensive online correspondence from 2007 through February 2010. (Id. ¶ 19.)
In 2007, Patchen created a video using Singsnap; in the video, she performed a karaoke version of a song entitled "Sexy Back" while dancing. (Id. ¶ 22.) Patchen posted it on a publicly accessible portion of Singsnap. (Defs. McGuire and ESM's Mot. to Dismiss Pl.'s 2d Am. Compl. ("McGuire's Mot. to Dismiss") Ex. A.) Shortly thereafter, she moved the video to the private portion of her Singsnap account, and then deleted the video from her account altogether in early 2009. (2d Am. Compl. ¶¶ 23-24.)
In early 2010, McGuire barred Patchen from further use of the Singsnap site. (Id. ¶ 30.) Patchen then became involved with another website, which she refers to as the "Singsnap Discussion Site."*fn2 (Id. ¶ 31.) This website was used by former users of Singsnap to discuss matters related to Singsnap; Patchen participated in these discussions. (Id.)
Patchen alleges McGuire entered into a conspiracy around this time for the purpose of harrassing, embarrassing and humiliating her, defaming her, violating her copyrights in the [v]ideo, and also inflicting severe emotional distress on her. (Id. ¶ 32.) Patchen names ESM, Maddox, Dickerson, and Loudon, as well as unknown persons, as McGuire's co-conspirators.*fn3 (Id. ¶ 32.) Specifically, Patchen asserts that McGuire and members of ESM's technical staff retrieved the video from Singsnap's servers and provided a copy to Maddox. (Id. ¶ 37.) Maddox allegedly posted the video, at McGuire's direction, on the public website "youtube.com" along with comments defaming Patchen; Maddox also allegedly distributed a copy to Dickerson. (Id. ¶¶ 37, 40, 42.) Patchen further claims that McGuire and ESM displayed the video on Singsnap in December 2011, in violation of her copyrights. (Id. ¶ 55.)
At the time of these events, Loudon was an employee of ESM. (Id. ¶ 33.) She currently resides in Lanarkshire, Scotland. (Id. ¶ 7.) Patchen states that, beginning in or about February 2010, Loudon began to post "harassing and defamatory" comments about her on various websites, including the Singsnap Discussion Site. (Id. ¶ 43.) Loudon did so under various aliases, so as to conceal her identity. (Id.) Patchen claims that Loudon acted at McGuire's direction. (Id.) As grounds for her belief, Patchen points to a series of e-mail exchanges between McGuire, Loudon, and others. Patchen received these e-mails from Sally Matzke, another former user of Singsnap; Matzke received the e-mails from Loudon herself. (Id. ¶ 44; id. Ex. D.)
At the time in question, Dickerson was a former user of Singsnap and
an acquaintance of Maddox. (Id. ¶ 33.) Dickerson currently resides in
Bremerton, Washington. (Id. ¶ 7.) Patchen claims that, after receiving
a copy of the video from Maddox, Dickerson threatened to post a copy
on an "adult-oriented" website. (Id. ¶ 42.) She further claims that
Dickerson, under numerous aliases, posted defamatory content on the
Singsnap Discussion Site "and elsewhere." (Id. ¶ 43.) According to the
complaint, these postings include accusations of "illegal activities"
made in May 2011 on three consumer-reporting websites.*fn4
(Id. ¶ 54.) Patchen asserts that Maddox assisted Dickerson in
making the May 2011 postings. (Id.)
Finally, Maddox was another volunteer working for ESM in connection with Singsnap at the time of the events. (Id. ¶ 33.) She currently resides in Dickson, Tennessee. (Id. ¶ 6.) Patchen claims that Maddox, aside from re-posting the video on youtube.com, also sent the youtube link of the video to another public website. (Id. ¶ 41.) Patchen claims that Maddox also anonymously posted defamatory comments on various websites, including the Singsnap Discussion Site. (Id. ¶ 43.) She asserts that Maddox persisted in this conduct from February 2010 through January and February, 2012. (Id. ¶¶ 43,56.)
In addition to the conduct described above, Patchen alleges that, beginning in February 2010, defendants Dickerson, Loudon, and Maddox "began directing numerous harassing and offensive e[-]mails directly to [her]." (Id. ¶ 49).
As a result of these alleged events, Patchen commenced the instant action in August 2011. She filed her second amended complaint on February 28, 2012. All defendants properly objected to the exercise of personal jurisdiction by way of their individual motions to dismiss Patchen's second amended complaint.These motions are largely duplicative, soI find it appropriate to address them collectively.
When a defendant challenges a court's exercise of personal jurisdiction over him or her, the plaintiff bears the burden of "prov[ing], by a preponderance of the evidence, facts sufficient to establish personal jurisdiction." Carteret Sav. Bank, FA v. Shushan, 954 F.2d 141, 146 (3d Cir. 1992). But where, as here, the court has not held an evidentiary hearing on the issue, to survive dismissal "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). Under this standard, the court must accept the plaintiff's allegations as true and resolve any factual disputes in the plaintiff's favor. See id. But even under this standard, the plaintiff may not "rely on the bare pleadings alone in order to withstand [dismissal]"; the plaintiff must respond to the motion to dismiss with "actual proofs"-such as "sworn affidavits or other competent evidence"-not "mere allegations." Time Share Vacation Club v. Atl. Resorts, Ltd., 735 F.2d 61, 66 n.9 (3d Cir. 1984).
A. Standards of Personal Jurisdiction
A district court may generally assert personal jurisdiction over a
defendant to the extent permitted under the law of the state in which
the court sits. See Fed. R. Civ. P. 4(k). Because this court sits in
Pennsylvania, the scope of its personal jurisdiction over a
nonresident defendant is defined by Pennsylvania's long-arm statute,
which provides that a Pennsylvania
court may exercise jurisdiction over a person "to the fullest extent
allowed under the Constitution of the United States."*fn5
42 Pa. Cons. Stat. § 5322(b). Thus, a court may exercise
personal jurisdiction over a defendant as long as it does not violate
due process. See Helicopteros Nacionales de Colombia, S.A. v. Hall,
466 U.S. 408, 413-14 (1984).
Due process requires that a defendant have "certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal quotation marks omitted). The Supreme Court has explained that these "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 Indus. Co. v. Superior Court, 480 U.S. 102, 109 (1987) (internal quotation marks omitted). And "[t]he nature of these contacts must be such that the defendant should be reasonably able to anticipate being haled into court in the forum state." Provident Nat'l Bank v. Cal. Fed. Sav. & Loan Ass'n, 819 F.2d 434, 437 (3d Cir. 1987).
A court's exercise of personal jurisdiction over a nonresident defendant may be based on one of two theories. If the cause of action arises from or is related to the defendant's contacts with the forum state, a court may have specific jurisdiction over the defendant. See Helicopteros, 466 U.S. at 414 n.8. Alternatively, if the defendant maintains "continuous and systematic" contacts with the forum state, a court may have general jurisdiction over the defendant and may entertain suits against the defendant on any claim, including those that do not arise from defendant's contacts with the forum. See id. at 414-16 & n.9.
The Third Circuit has framed the specific-personal-jurisdiction inquiry in two slightly different ways. See Marten v. Godwin, 499 F.3d 290, 297 (3d Cir. 2007); Toys "R" Us, Inc. v. Step Two, S.A., 318 F.3d 446, 455 n.6 (3d Cir. 2003). Under the standard minimum-contacts analysis, "[s]pecific jurisdiction exists if the defendant has 'purposefully directed his activities at residents of the forum and the litigation results from alleged injuries that arise out of or relate to those activities.'" Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324, 334 (3d Cir. 2009) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)). Even where these two requirements have been met and the defendant is said to have "the requisite minimum contacts with the forum," D'Jamoos v. Pilatus Aircraft Ltd., 566 F.3d 94, 102 (3d Cir. 2009), "a court may consider whether the exercise of jurisdiction otherwise 'comport[s] with fair play and substantial justice.'" Id. (quoting Burger King, 471 U.S. at 476).
The second variant of the specific personal jurisdiction inquiry is
the "effects" test. This test requires that "(1) [t]he defendant
committed an intentional tort; (2) [t]he 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) [t]he defendant expressly aimed his tortious conduct at the forum
such that the forum can be said to be the focal point of the tortious
activity." Remick v. Manfredy, 238 F.3d 248, 258 (3d Cir. 2001)
(emphasis omitted); see also Calder v. Jones, 465 U.S. 783 (1984).
"Only if the 'expressly aimed' element of the effects test is met need
[a court] consider the other two elements." Marten, 499 F.3d at 297.
test, when dealing with Internet communications or transactions, a
central factor is the defendant's "intentionality."*fn6
Toys "R" Us, 318 F.3d at 455 n.6.
Plaintiff asserts that the court has jurisdiction over defendants because "defendants directed their conduct toward plaintiff, who reside[s] in this district, because ESM does business in this District, and because a substantial part of the acts and omissions giving rise to the claims in this action occurred in this District."*fn7 (2d Am. Compl. ¶ 10.) Patchen can only plausibly claim specific personal jurisdiction. The specific-jurisdiction inquiry is specific to each claim. Remick, 238 F.3d at 255. "[A] conclusion that the District Court has personal 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 [plaintiff's] other claims." Id. Thus, I evaluate separately each of Patchen's claims against each defendant.Because disposition of the civil-conspiracy claim is contingent upon the disposition of the underlying causes of action, I address it last.
Patchen claims that Maddox (of Dickson, Tennessee) conspired with McGuire to defame her, infringe her copyright, and inflict emotional distress upon her. (Id. ¶ 32.)Patchen specifies that Maddox received Patchen's video from McGuire and re-posted that video on youtube.com with defamatory comments. (Id. ¶ 37.) Patchen also asserts that Maddox sent numerous "harassing and offensive e[-]mails" directly to her and that Maddox posted defamatory comments about her on the Singsnap Discussion Site and other websites. (Id. ¶¶ 43,49.)
However, Time Share makes clear that a plaintiff must answer a motion to dismiss for lack of personal jurisdiction with more than reliance on bare pleadings. 735 F.2d at 66 n.9. Patchen has provided declarations (taken from herself and others) in response to the dismissal motions, yet none of the declarations or other exhibits supports the allegation that Maddox sent Patchen offensive e-mails. Outside of the pleadings, Patchen provides printed Internet pages showing that Maddox posted harassing comments on what appears to be the Singsnap Discussion Site and on youtube.com. (2d Am. Compl. Exs. B, F, G.)*fn8 Furthermore, she provides a declaration from an administrator of the Singsnap Discussion Site stating that Maddox used various Internet pseudonyms to post what plaintiff alleges are "harassing and abusive statements" on that website. (Pl.'s Mem. of Law in Opp'n to Maddox's Mot. to Dismiss ("Pl.'s Opp'n to Maddox") Ex. A.) Patchen also provides her own declaration and certain exhibits indicating that Maddox re-posted the video on youtube.com along with insulting comments. (Pl.'s Mem. of Law in Opp'n to McGuire and ESM's Mot. to Dismiss ("Pl.'s Opp'n to McGuire") Exs. 1-4.) In evaluating whether Maddox has sufficient contacts with this forum, I thus rely on her conduct in (1) posting allegedly defamatory content, and (2) posting the allegedly copyright-protected video.*fn9
Where a nonresident defendant has allegedly posted defamatory content on a website, the court must assess "whether the Internet activity in question was expressly aimed at the forum state by examining both the features of the web site and how the defendants used those features." Gorman v. Jacobs, 597 F. Supp. 2d 541, 547 (E.D. Pa. 2009) (citing Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997)). See generally Remick, 238 F.3d at 258-59 (citing Calder, 465 U.S. at 789; Imo, 155 F.3d at 265-66). The crucial factor is whether a defendant intentionally targeted or interacted with the forum state through his use of the website. See Toys "R" Us, 318 F.3d at 452. This requirement can be satisfied if some aspect of the website "suggest[s] to the user that residents of the forum state are the target audience."
Gorman, 597 F. Supp. 2d at 548 (emphasis omitted). However, "mere posting of information or advertisements on an Internet web site does not confer nationwide personal jurisdiction." Remick,238 F.3d at 259 n.3. Moreover, personal jurisdiction is not established merely because the defendant harms the plaintiff while she happens to reside in the forum state. Marten v. Godwin, 499 F.3d 290, 299 (3d Cir. 2007); Imo, 155 F.3d at 263 ("[T]he mere allegation that the plaintiff feels the effect of the defendant's tortious conduct in the forum because the plaintiff is located there is insufficient to satisfy Calder."). Nor is defendant's knowledge that the plaintiff resides in the forum sufficient. Gorman, 597 F. Supp. 2d at 548 ("Simply (a) knowing that the plaintiff is in the ...