United States District Court, E.D. Pennsylvania
TIMOTHY J. SAVAGE J.
to dismiss this action for lack of personal jurisdiction, the
defendants, citizens of Maryland, contend that they do not
have sufficient contacts with the Commonwealth of
Pennsylvania and have not purposefully directed any conduct
at Pennsylvania to justify the exercise of jurisdiction over
them. Capital Suppression Company, LLC, t/a
UniPro (“Capital), the individual defendants'
former employer whose principal place of business is in
Philadelphia, Pennsylvania, responds that the defendants are
subject to personal jurisdiction because they expressly aimed
their intentional tortious conduct at Pennsylvania, causing
it to feel the brunt of the resulting harm here.
brings this action against three former employees and the
company for which they currently work. It asserts claims
arising out of the defendants' alleged misappropriation
and retention of confidential and proprietary information and
trade secrets, and tortious interference with current and
prospective customer contracts and business relationships.
conclude that Capital has not met its burden of establishing
the existence of general or specific personal jurisdiction
over the defendants. Rather than dismiss the action, we shall
transfer it to the United States District Court for Maryland
where it could have been brought when it was
a limited liability company headquartered in Philadelphia,
Pennsylvania, provides fire extinguishers and
fire-suppression services in the Mid-Atlantic region. Around
February of 2018, Capital expanded its fire-suppression
business, purchasing the assets of Chesapeake Uniform Rental,
Inc. (“Chesapeake”), a Maryland
corporation. At the time of the purchase, defendants
Michael Kurant and Jacob Williams were employed by
Chesapeake, where Williams worked as a shop technician
testing, refilling and certifying fire extinguishers, and
Michael Kurant was a manager. They were and remain residents of
after the purchase of Chesapeake, Edward Darcy, Capital's
Operations Manager who worked out of Capital's
Philadelphia office, conducted telephonic job interviews with
Michael Kurant, Williams, and Nancy Kurant. Capital hired
Michael Kurant and Williams as service technicians,
performing on-site inspections, and servicing portable fire
extinguishers, suppression systems and emergency exit
lighting exclusively in Maryland. Capital hired Nancy Kurant
in June of 2018 as a service technician and Michael
Kurant's assistant. They were informed that Capital was a
Pennsylvania company and that their work would be directed
from, generated in and supervised from the Philadelphia
met with each individual defendant in Maryland to review
Capital's procedures and the company's expectations.
He told them that he would be their supervisor and his office
was located in Philadelphia. He also discussed with Michael
Kurant and Williams the terms of the non-compete agreement
they had signed, including the provision stating that it
“is to be governed and construed according to the law
of the State of Pennsylvania.” Darcy's supervision
of the individual defendants involved daily phone calls from
his Philadelphia office to them in Maryland. He also made
weekly personal visits in Maryland.
individual defendants also had daily contact via phone and
email with another Philadelphia office employee, Anila
Saraci, who maintained and updated Capital's customer
lists and scheduled the defendants' customer site visits.
From customer leads developed by the Philadelphia office,
Saraci generated an invoice for each appointment, which
included the customer's name and address, appointment
date and time, description of the service to be provided, and
the cost of the service. The individual defendants
communicated daily with Saraci about the status of customer
appointments, pricing and other customer questions. When
appointments were completed, they emailed the customer
invoice to Saraci. Capital used these daily reports to
track sales, services and inventory, order supplies and
equipment, and monitor employee performance.
addition to mailing supplies and equipment to the individual
defendants in Maryland, Capital's Philadelphia office
provided Michael Kurant and Williams each a van that served
as a mobile work station for their daily site visits. The
vans were registered and insured at Capital's
Philadelphia address. Capital paid for the vehicles'
maintenance and service. The Philadelphia office provided the
equipment and supplies to stock the vans.
individual defendants submitted requests for pay and
commissions to Capital's Philadelphia office. Their
salary and commission payments were sent from Philadelphia,
and company benefits were administered in
employed by Capital, Michael Kurant and Williams were present
in Pennsylvania on a few occasions. Each time it was at the
direction of and for the benefit of Capital. On April 2,
2018, Michael Kurant and Williams each drove a van from
Maryland to Philadelphia and back to Maryland to have the
vehicles titled and registered in Pennsylvania. Williams
traveled to Pennsylvania twice more in connection with his
employment with Capital. Once, he went to York, Pennsylvania,
to service life safety equipment. The last time, he drove a
van to Philadelphia to be recertified.
October of 2018, Michael Kurant resigned from his job.
Shortly thereafter, Capital terminated Nancy Kurant's
employment. On May 3, 2019, when Williams last drove
the van to Philadelphia, Capital terminated his employment
and gave him train fare to return to Maryland.
Kurant had formed Maximum Fire Protection, LLC
(“Maximum”), a fire suppression business, in July
of 2018, more than two months before he resigned from
Capital. Maximum is a limited liability company
formed in Maryland and registered to do business only in
Maryland. Maximum has four employees, all of whom
are domiciled in Maryland.
claims that the individual defendants conspired to actively
solicit Capital's customers and induce them to move their
business to Maximum. It alleges that Michael Kurant
misappropriated Capital's proprietary and confidential
information, including its customer lists and pricing
information,  to undercut Capital's prices, and
induced Capital's customers to terminate their
contractual relationships with Capital and enter into
contracts with Maximum. It further alleges that Williams,
while still employed by Capital, aided Michael Kurant and
Maximum by using Capital's mobile van and equipment to
service former Capital customers as customers of
asserts seven claims. They are tortious interference with
Capital's contractual relations; tortious interference
with Capital's prospective contractual and business
relationships; misappropriation of trade secrets; unfair
competition; conversion; and civil conspiracy, and a request
for accounting. Except for the accounting claim, all are
defendant challenges personal jurisdiction, the plaintiff
bears the burden of proving, by a preponderance of the
evidence, facts establishing a basis for the exercise of
jurisdiction. Metcalfe v. Renaissance Marine, Inc.,
566 F.3d 324, 330, 336 (3d Cir. 2009) (citing Carteret
Sav. Bank, F.A. v. Shushan, 954 F.2d 141, 146 (3d Cir.
1992)). In considering a motion to dismiss for lack of
personal jurisdiction under Federal Rule of Civil Procedure
12(b)(2), as we do with a motion to dismiss for failure to
state a claim under Rule 12(b)(6), we accept as true the
plaintiff's allegations and draw all reasonable
inferences in favor of the plaintiff. Shuker v. Smith
& Nephew, PLC, 885 F.3d 760, 780 (3d Cir. 2018)
(citing O'Connor v. Sandy Lane Hotel Co., 496
F.3d 312, 316 (3d Cir. 2007)). However, unlike with Rule
12(b)(6), the scope of review under Rule 12(b)(2) is not
limited to the face of the pleadings. Patterson by
Patterson v. FBI, 893 F.2d 595, 603-04 (3d Cir. 1990)
(citation omitted) (holding Rule 12(b)(2) motion is
“inherently a matter which requires resolution of
factual issues outside the pleadings”). Once a
defendant challenges personal jurisdiction, the plaintiff
must “prove by affidavits or other competent
evidence” that jurisdiction is proper.
Metcalfe, 566 F.3d at 330 (citation omitted).
the parties do not conduct jurisdictional discovery and there
is no evidentiary hearing, the plaintiff need only establish
a prima facie case of personal jurisdiction.
Shuker, 885 F.3d at 780. To determine whether the
plaintiff has made this prima facie showing, we
assume all factual allegations in the affidavits and other
evidence submitted to be true and construe all factual
disputes in the plaintiff's favor. Metcalfe, 566
F.3d at 331, 333.
are two types of personal jurisdiction, general and specific.
The focus of general jurisdiction is on the relationship
between the defendant and the forum state, not on the
relationship of the claims to the forum. Bristol-Myers
Squibb Co. v. Superior Court of California, San Francisco
Cty., 137 S.Ct. 1773, 1780 (2017) (citing Goodyear
Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915,
919 (2011)). The specific jurisdiction inquiry focuses on the
relationship of the litigation to the defendant's
contacts with the forum. Walden v. Fiore, 571 U.S.
277, 284 (2014).
exercising personal jurisdiction over a nonresident, a
district court must conduct a two-step analysis. Eurofins
Pharma U.S. Holdings v. BioAlliance Pharma SA, 623 F.3d
147, 155 (3d Cir. 2010). First, there must be a statutory
basis under the law of the forum state for exercising
jurisdiction. Walden, 571 U.S. at 283 (citing
Daimler AG v. Bowman, 571 U.S. 117, 125 (2014));
Fed.R.Civ.P. 4(k)(1)(A). Second, the nonresident must have
sufficient minimum contacts with the forum state to satisfy
constitutional due process. BNSF Ry. Co. v. Tyrrell,
137 S.Ct. 1549, 1558 (2017).
Basis for Jurisdiction
long-arm statute supplies several bases for personal
jurisdiction over a nonresident defendant. 42 Pa. Cons. Stat.
Ann. §§ 5301, 5322; Pennzoil Prods. Co. v.
Colelli & Assocs., Inc., 149 F.3d 197, 200 & n.1
(3d Cir. 1998). Section 5301 provides for general
jurisdiction over an individual defendant who was domiciled
or present in the state at the time of service of process, or
who consents to suit. 42 Pa. Cons. Stat. Ann. §
5301(a)(1)(i)-(iii). General jurisdiction exists over an
unincorporated association that was formed as a Pennsylvania
entity, is a foreign company registered to do business in
Pennsylvania, carries on “a continuous and systematic
part” of its business in Pennsylvania, or consents to
suit. Id. § 5301(a)(3)(i)-(iii). When personal
jurisdiction is premised on this section of the Pennsylvania
long-arm statute, any cause of action may be asserted against
the defendant whether or not it arises from acts forming the
basis of jurisdiction. Id. § 5301(b).
statute's “tort out/harm in” provision
confers specific jurisdiction over anyone who
“[c]aus[es] harm or tortious injury in th[e]
Commonwealth by an act or omission outside th[e]
Commonwealth.” Id. § 5322(a)(4);
Pennzoil, 149 F.3d at 200 n.1. Additionally, section
5322(b) provides that specific jurisdiction extends “to
all persons who are not within the scope of section 5301 . .
. 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. Cons. Stat. Ann. § 5322(b).
Under this section, only causes of action arising from the
defendant's contacts with the forum may be asserted.
Id. § 5322(c).
Contacts with Pennsylvania
statutory basis for the exercise of personal jurisdiction
alone is not sufficient. The exercise of jurisdiction must
also be consistent with the limits imposed by the Due Process
Clause of the Fourteenth Amendment. Walden, 571
U.S.at 283 (citing Daimler, 571 U.S. at 125). To
meet this standard, the plaintiff must establish that
“certain minimum contacts” exist between the
nonresident defendant and the forum so that the exercise of
jurisdiction will “not offend ‘traditional
notions of fair play and substantial justice.'”
Tyrrell, 137 S.Ct. at 1558 (quoting Int'l
Shoe Co. v. Wash., 326 U.S. 310, 316 (1945)).
jurisdiction over a foreign corporation, partnership or
unincorporated entity exists where its “affiliations
with the [forum] State are so ‘continuous and
systematic' as to render [it] essentially at home”
there. Id. at 1558 (quoting Daimler, 571
U.S. at 127). “[O]nly a limited set of affiliations
with a forum will render a defendant amenable to general
jurisdiction” there. Bristol-Myers Squibb, 137
S.Ct. at 1780 (quoting Daimler, 571 U.S. at 137).
The “paradigm forum” for the exercise of general
jurisdiction over a corporation is where it is incorporated
and has its principal place of business; for an
individual, it is the individual's domicile.
Daimler, 571 U.S. at 137 (quoting Goodyear,
564 U.S. at 924). Once these contacts are established, the
defendant can be answerable for any claim even if the subject
matter of the cause of action has no relationship to the
forum. Bristol-Myers Squibb, 137 S.Ct. at 1780
(citing Goodyear, 564 U.S. at 919).
jurisdiction arises when the cause of action is related to or
arises out of the defendant's contacts with the forum and
the plaintiff's injury in the forum is related to those
contacts. Bristol-Myers Squibb, 137 S.Ct. at 1780
(quoting Daimler, 571 U.S. at 127). The specific
jurisdiction inquiry “focuses on the relationship among
the defendant, the forum, and the litigation.”
Walden, 571 U.S. at 283-84 (quoting Keeton v.
Hustler Magazine, Inc., 465 U.S. 770, 775 (1984)
(internal quotations omitted)).
“traditional test” for the exercise of specific
jurisdiction over a nonresident defendant has three
requirements. First, the defendant's conduct must have
been purposefully directed at the forum state, resulting in
contacts with the forum. J. McIntyre Mach., Ltd. v.
Nicastro, 564 U.S. 873, 881, 883 (2011) (minimum
contacts requires “contact with and activity directed
at” the forum state) (citations omitted). Second, the
plaintiff's claim must arise out of or relate to those
contacts. Walden, 571 U.S. at 284 (citing Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985).
Third, if the first two requirements are met, the court
considers whether the exercise of jurisdiction otherwise
comports with “fair play and substantial
justice.” D'Jamoos ex rel. Estate of Weingeroff
v. Pilatus Aircraft Ltd., 566 F.3d 94, 102 (3d Cir.
2009) (quoting Burger King, 471 U.S. at 476).
first two requirements assess whether a defendant has the
requisite minimum contacts with the forum. Although the
purposeful direction requirement does not require physical
presence in the forum, it does require that the defendant
created the contacts with the forum state. Walden,
571 U.S. at 284-85 (citing Burger King, 471 U.S. at
475- 76). The defendant's contacts must be with the forum
state itself, not just “with persons who reside
there.” Walden, 571 U.S. at 285 (citing
Int'l Shoe, 326 U.S. at 319). In other words,
“the plaintiff cannot be the only link between the
defendant and the forum. Rather, it is the defendant's
conduct that must form the necessary connection with the
forum State that is the basis for its jurisdiction over
him.” Walden, 571 U.S. at 285-86 (citing
Burger King, 471 U.S. at 478).
relatedness requirement demands a causal connection between
the defendant's activities and the effects of that
activity in the forum. Walden, 571 U.S. at 284. The
relationship among the defendant, the forum, and the
litigation “must arise out of contacts that the
‘defendant himself' creates with the forum
State.” Id. (citing Burger King, 471
U.S. at 475) (emphasis in original). There must be an
“affiliation between the forum and the underlying
controversy” that is connected to the defendant's
conduct. Bristol-Myers Squibb, 137 S.Ct. at 1780
(quoting Goodyear, 564 U.S. at 919).
plaintiff's contacts are not relevant. Only the
defendant's contacts are analyzed. Thus, no matter how
significant the plaintiff's contacts are, they are not
“decisive in determining whether the defendant's
due process rights are violated.” Walden, 571
U.S. at 285 (quoting Rush v. Savchuk, 444 U.S. 320,
plaintiff has met its burden of showing the defendant has
“minimum contacts” with the forum state, the
exercise of jurisdiction is presumed constitutional, and the
burden shifts to the defendant to “present a compelling
case that the presence of some other considerations would
render jurisdiction unreasonable.”
O'Connor, 496 F.3d at 324 (quoting Burger
King, 471 U.S. at 477). The relevant factors to consider
in the fair play analysis include “the burden on the
defendant, ” “the forum State's interest in
adjudicating the dispute, ” “the plaintiff's
interest in obtaining convenient and effective relief,
” “the interstate judicial system's interest
in obtaining the most efficient resolution of controversies,
” and the “shared interest of the several States
in furthering fundamental substantive social policies.”
Burger King, 471 U.S. at 477 (quoting World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 292
under the “traditional test, ” a defendant lacks
sufficient contacts with the forum to comport with the
requirements of due process, it may still be subject to
jurisdiction under the Calder “effects
test.” See Calder v. Jones, 465 U.S. 783
(1984). Calder recognizes that, in certain
circumstances, the relationship among the defendant, the
forum, the plaintiff and the intentional tort may render a
defendant's otherwise insufficient contacts with the
forum under the “traditional test” sufficient.
IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 260,
265 (3d Cir. 1998). Unlike the “traditional test,
” which requires a defendant to have made direct
contacts with or in the forum, minimum contacts can be
established under Calder if the plaintiff's
injury, which was caused by the defendant's conduct
outside the forum, connects the defendant's conduct to
the forum, not just to the plaintiff. Walden, 571
U.S. at 288.
Calder, a California resident brought a claim in
California state court against the author and the editor of
an allegedly libelous article and their employer newspaper.
The individual defendants were domiciled in Florida where
they researched, wrote and edited most of the article. The