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Maser v. Deeble

United States District Court, W.D. Pennsylvania

March 9, 2017

MICHAEL MASER, Plaintiff,
v.
JEREMY DEEBLE and TRANONT, INC., Defendants.

          MEMORANDUM OPINION

          Nora Barry Fischer United States District Judge.

         I. INTRODUCTION

         This diversity action arises out of an alleged illegal wiretap. (Docket No. 1-2). Plaintiff asserts claims against Defendants for breach of contract, tortious interference with contract and business relationships, defamation, unfair and deceptive trade practices, intrusion upon seclusion, publicity to private life, and false light. (Id.). Presently before the Court is Defendants' Motion to Dismiss for Lack of Jurisdiction or to Transfer the Case, along with a supporting brief. (Docket Nos. 3, 4). Plaintiff filed a brief in opposition to Defendant's motion, to which Defendants replied. (Docket Nos. 7, 12, 13). Along with their briefing, Defendants have also presented affidavits prepared by Defendant Jeremy Deeble and Scott Bland. (Docket Nos. 4-1, 4-2). Upon consideration of the parties' arguments, and for the following reasons, Defendants' Motion to Dismiss for Lack of Jurisdiction is granted, without prejudice to Plaintiff refiling this action in the appropriate jurisdiction.

         II. FACTUAL BACKGROUND

         a. Plaintiff's Complaint

         Plaintiff is a native of Allegheny County, Pennsylvania, and is an independent business owner with the American Communications Network (“ACN”). (Docket No. 1-2 at ¶¶ 1, 4-5). Defendant Deeble is a resident of Indiana, [1] and Defendant Tranont, Inc.'s principal place of business is in Utah. (Id. at ¶¶ 2-3). Defendant Deeble was formerly a representative in the downline of ACN but became an agent of Defendant Tranont, Inc., a competitor of ACN. (Id. at ¶¶ 17, 22). Plaintiff alleges that Defendants conspired and designed a plan to bait him into embarrassing himself, to publish the damaging results, and to recruit individuals from ACN to join Defendant Tranont, Inc. (Id. at ¶¶ 24, 26). Specifically, Plaintiff avers that Defendants “inspired” to illegally intercept and record an embarrassing telephone conversation, in which Plaintiff appears angry, profane, and loud, and then distributed the conversation through text messages, e-mails, and social media for the purpose of damaging Plaintiff's business relationships. (Id. at ¶¶ 28, 30-34, 39-40). Plaintiff states that his counsel has requested confirmation that the publication has ceased but has not received a response from Defendants. (Id. at ¶¶ 37-38). Plaintiff alleges that his reputation among his downline representatives and business associates has been damaged, and will continue to be damaged by Defendants' further publication of the recorded telephone call. (Id. at ¶¶ 41-43).

         Plaintiff asserts claims against Defendants for breach of contract, tortious interference with contract and business relationships, defamation, unfair and deceptive trade practices, intrusion upon seclusion, publicity to private life, and false light. (Id. at ¶¶ 44-88). In support of his breach of contract claim, Plaintiff contends that Defendant Deeble breached the parties' ACN contract, which included a covenant not to compete. (Id. at ¶¶ 44-48). Regarding his claim for tortious interference with contract and business relationships, Plaintiff alleges that Defendants tortiously interfered with his business associates and customers by publishing the illegally recorded telephone call and poaching his current and potential future independent business owners in his ACN downline. (Id. at ¶¶ 49-54). Plaintiff relies upon the same core facts to support his claims for defamation, unfair and deceptive trade practices, intrusion upon seclusion, publicity to private life, and false light. (Id. at ¶¶ 55-87). He seeks injunctive and compensatory relief. (Id. at ¶¶ 88-99).

         b. Plaintiff's Emergency Petition for Injunctive Relief

         Plaintiff filed an Emergency Petition for Injunctive Relief in the Court of Common Pleas of Allegheny County. (Docket No. 1-3 at 2-16). In his petition, Plaintiff restated the facts in his Complaint that detailed his relationship with Defendants and the telephone call. (Id. at ¶¶ 1-44). In support of his request for immediate injunctive relief, Plaintiff alleged that Defendants had been luring and poaching his independent business owners, his customers, and his business associates. (Id. at ¶ 45). Plaintiff asserted that Defendants would not be prejudiced by ceasing further publication of the call and that he would suffer permanent, substantial, and irreparable harm without an injunction. (Id. at ¶¶ 47-48). Plaintiff requested a temporary restraining order prohibiting any further publication of the call, a hearing for a permanent injunction, and judgment for Plaintiff in excess of $200, 000 in damages. (Id.).

         On December 22, 2016, the Court of Common Pleas of Allegheny County issued a special injunction order against Defendants and scheduled a hearing on the construction of the special injunction. (Id. at 2, 43). After Defendants failed to appear at the hearing held on December 28, 2016, the court made its December 22, 2016 order permanent. (Id. at 1-2, 45). The court further ordered Defendants to: (1) provide to Plaintiff's counsel any and all originals and copies of the recording, along with reasonable confirmation of the destruction of all copies; (2) cease publication and permanently terminate all publication of the recording; and (3) retract any known recipients and provide a list of the places in which the recording had been published, the persons to whom the recording had been published, and the manner of publication. (Id.).

         c. Defendants' Supporting Evidence

         Attached to their briefing in support of their motion, Defendants have presented affidavits prepared by Scott Bland and Defendant Deeble. In his affidavit, Bland states that he is the President of iMoney Tools, LLC d/b/a Tranont, which is a limited liability company with a primary address located in Utah. (Docket No. 4-1 at ¶ 1). Bland avers that the company's members are National Marketing & Learning, LLC, a Missouri limited liability company, and H20 Mark Marketing, LLC, a Utah limited liability company. (Id. at ¶ 2). Bland states that iMoney Tools, LLC's business is in the western portion of the United States and has only limited interactions with the Commonwealth of Pennsylvania. (Id. at ¶ 4). The company is not incorporated in Pennsylvania; is not registered to do business in Pennsylvania; does not do business under any other name in Pennsylvania; and does not have any property, employees, representatives, or agents in Pennsylvania. (Id. at ¶¶ 5-6). Bland avers that neither he nor the company's principal members have ever spoken to Plaintiff and that the company has never contracted with or transacted any business with Plaintiff. (Id. at ¶¶ 7-8).

         Defendant Deeble states in his affidavit that he is a resident of Idaho who has never been a citizen or resident of Pennsylvania; has not registered to contract or transact business with the Pennsylvania Secretary of State; does not own any real property in Pennsylvania; and does not have any representatives, employees, or agents in Pennsylvania. (Docket No. 4-2 at ¶¶ 1-4). Defendant Deeble avers that although he and Plaintiff were formerly associated with ACN, he has never contracted to do business with Plaintiff, either individually or through any business entity. (Id. at ¶¶ 5-6, 8). With respect to the recorded telephone call, Defendant Deeble states that he received a threatening voicemail from Plaintiff on December 8, 2016, while he was located in New Jersey. (Id. at ¶¶ 9-10). Defendant Deeble states that he returned Plaintiff's call but recorded the conversation because he was concerned by the tone of Plaintiff's voicemail. (Id. at ¶ 11). Defendant Deeble avers that he maintains possession of the audio recording and that his primary purpose for recording the call was to protect himself and his family against Plaintiff's threats. (Id. at ¶¶ 12, 19). He summarizes the call and attaches a transcription of same to his affidavit. (Id. at ¶¶ 11, 13-17; Docket No. 4-3). Defendant Deeble states that Plaintiff informed him that he was in Ohio, not Pennsylvania, and that the telephone call did not include anyone located in Pennsylvania. (Docket No. 4-2 at ¶¶ 15, 18).

         III. PROCEDURAL HISTORY

         Plaintiff initiated this case by filing his Complaint in the Court of Common Pleas of Allegheny County on December 22, 2016. (Docket No. 1-2). Defendants responded by removing the case to this Court on January 20, 2017. (Docket No. 1). Defendants filed the pending Motion to Dismiss, along with its Brief in Support and supporting evidence on January 24, 2017. (Docket Nos. 3, 4). Plaintiff filed his response in opposition, to which ...


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