REPORT AND RECOMMENDATION ECF No. 16
LISA PUPO LENIHAN, Chief Magistrate Judge.
It is respectfully recommended that the Motion to Dismiss under Rule 12(b)(2) for lack of personal jurisdiction filed by Defendant Gerald D. Keeler (ECF No. 16) be granted.
In this employment discrimination case, Plaintiff, Brenda Johnson, proceeding pro se, asserts claims for discrimination, retaliation, and wrongful termination under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e-2(a), against her former employer, R. R. Donnelley Printing Co. ("R.R. Donnelley") and several of its employees. One of those employees, Gerald D. Keeler, has moved to dismiss the Amended Complaint against him on the basis that this Court lacks personal jurisdiction over him. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3).
A. Factual Background & Procedural History
On August 29, 2012, Plaintiff filed her one-page Complaint in this action against her former employer, R.R. Donnelley, asserting claims for discrimination, retaliation and wrongful discharge. See ECF No. 2. The Complaint further alleges that "the facts are in the packet[, a]s well as information that the Company sent to EEOC." Id.  Plaintiff attached to her Complaint, a "packet" which consists of 100 pages of documents comprised mainly of the record before the EEOC. See ECF No. 2-1. It appears from these documents that Plaintiff was employed by Defendant R.R. Donnelley as a quality control inspector. See ECF No. 2-1 at 15, 44. It also appears from these documents that the event which triggered the alleged unlawful discrimination was a quality control issue with the Abercrombie & Fitch printing job, on or about February 2, 2011, for which Plaintiff was issued a "Final Warning" by Defendant Amy Bereksazi on February 16, 2011. See Charge of Discrimination dated 9-12-11 (ECF No. 2-1 at 3). Defendant Keeler is not mentioned in any of the documents attached to her original Complaint.
On November 19, 2012, Plaintiff filed a one-page Amended Complaint (ECF No. 4), in which she added the following R.R. Donnelley employees as Defendants: Amy Bereksazi, Jim Ford, Andrew Shissler, Jake Zoller, Debbie Steinmetz, Cindy Massarelli, Carrie Zdobinski, Susan Everhart, and Gerald D. Keeler. The Amended Complaint does not set forth any other information, nor does it incorporate the original Complaint.
On January 16, 2013, Defendant Keeler moved to dismiss Plaintiff's Amended Complaint (ECF No.16), arguing in support that this Court lacks personal jurisdiction over him under Rule 12(b)(2) of the Federal Rules of Civil Procedure. In support, Keeler attached an affidavit, wherein he states that he has worked as a sales representative for R.R. Donnelley at their facility in Columbus, Ohio since before 2011. (Keeler Aff. ¶¶2-3, Ex. 2 to Def.'s Br. in Supp. of Mot. to Dismiss, ECF No. 18-1 at 5.) Keeler further states that he has lived exclusively in Ohio since the date of his birth. ( Id. at ¶4.) He maintains that he has traveled to Pennsylvania approximately twice a year for work. ( Id. at ¶5.) In addition, Keeler states that he was not involved in the decision to discipline the Plaintiff or in her separation from employment with R.R. Donnelley. ( Id. at ¶¶8-9.) In fact, Keeler believes that he has never even met her. ( Id. at ¶10.)
Plaintiff filed a response (ECF No. 21) to Defendant Keeler's motion on March 29, 2013, which appears to be an undated, unsworn statement from Plaintiff to Mr. Keeler, wherein she states, "To show association, Cyndie Massarelli as a Customer Service Representative at R.R. Donnelley... [in] Pittsburgh, PA. 15208 a job was sent to your address by way of UPS." Plaintiff identifies the job as the Abercrombie & Fitch Job #117199, and indicates that Keeler works for R.R. Donnelley at their facility in Columbus, Ohio. She further states that Keeler is listed on the shipping form as "J.D. Keeler." (ECF No. 21 at 2.)
In responding to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction, the plaintiff bears the burden of proving, by a preponderance of the evidence, facts sufficient to establish personal jurisdiction over the defendants, by producing affidavits or other competent evidence. Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324, 330 (3d Cir. 2009) (citing 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)); see also Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 66 n.9 (3d Cir. 1984). If an evidentiary hearing is not held on the 12(b)(2) motion, then the plaintiff need only demonstrate a prima facie case of personal jurisdiction. Metcalfe, 566 F.3d at 330 (citing O'Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 316 (3d Cir. 2007)); D'Jamoos v. Pilatus Aircraft Ltd., 566 F.3d 94, 102 (3d Cir. 2009) (citing Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 97 (3d Cir. 2004)). A plaintiff "presents a prima facie case for the exercise of personal jurisdiction by establishing with reasonable particularity sufficient contacts between the defendant and the forum state.'" Mellon Bank (East) PSFS, Nat'l Ass'n v. Farino, 960 F.2d 1217, 1221 (3d Cir. 1992) (quoting Provident Nat'l Bank v. Cal. Fed. Sav. & Loan Ass'n, 819 F.2d 434, 437 (3d Cir. 1987)) (other citation omitted). In deciding a Rule 12(b)(2) motion, the court must accept as true all allegations contained in the complaint and view all factual disputes in plaintiff's favor. D'Jamoos, 566 F.3d at 102 (citing Miller Yacht Sales, supra ).
The starting point for determining whether personal jurisdiction can be exercised over a defendant is Rule 4(k) of the Federal Rules of Civil Procedure, which provides that a district court obtains "personal jurisdiction over a defendant... who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located[.]" Fed.R.Civ.P. 4(k)(1)(A); see O'Connor, 496 F.3d at 316 (citing Rule 4(k)(1)(A)). Thus, Pennsylvania's Long-Arm Statute, 42 Pa. Cons. Stat. Ann. §5322(b), governs the case at bar. O'Connor, 496 at 316. Section 5322(b) authorizes personal jurisdiction over nonresidents "to the fullest extent allowed under the Constitution of the United States and may be based on the most minimum contact with [Pennsylvania] allowed under the Constitution of the United States." In other words, as long as the requirements of the Due Process Clause of the United States Constitution have been satisfied, personal jurisdiction will lie over non-resident defendants in Pennsylvania. Farino, 960 F.2d at 1221; Pennzoil Prods. Co. v. Colelli & Assocs., Inc., 149 F.3d 197, 200 (3d Cir. 1998) (citing Farino, 960 F.2d at 1221; Renner v. Lanard Toys Ltd., 33 F.3d 277, 279 (3d Cir. 1994)). See also Mendel v. Williams, 53 A.3d 810, 817-18 (Pa. Super. Ct. 2012); Haas v. Four Seasons Campground, Inc., 952 A.2d 688, 692-93 (Pa. Super. Ct. 2008).
It is axiomatic that to satisfy due process, the defendant must 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) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)) (other citations omitted). The minimum contacts requirement serves the purpose of "protect[ing] the defendant against the burdens of litigating in a distant and inconvenient forum" by requiring that the "defendant's conduct and connection with the forum State [be] such that [a defendant] should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291-92, 297 (1980) (citations omitted). This framework enables "potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit." Id. at 297. Thus, a plaintiff cannot unilaterally create the necessary contacts between the defendant and the forum; rather, "minimum contacts" can arise only by "some act ...