East Coast Test Prep LLC et al v. Allnurses.com, Inc., et al

Filing 450

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS. Granting 430 Defendant Uhura Russ's Motion to Dismiss; Denying 437 Plaintiff's Motion to Transfer. The present action is Dismissed. Let Judgment be entered accordingly. (Written Opinion) Signed by Chief Judge John R. Tunheim on 8/9/2018. (JMK)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
EAST COAST TEST PREP LLC d/b/a
Achieve Test Prep and MARK OLYNYK,

Civil No. 15-3705 (JRT/SER)

Plaintiffs,
MEMORANDUM OPINION
AND ORDER GRANTING
MOTION TO DISMISS

v.
UHURA RUSS,
Defendant.

Richard L. Ravin, HARTMAN & WINNICKI, P.C., 74 Passaic Street,
Ridgewood, NJ 07450, Charles S. Kramer, RIEZMAN BERGER, P.C.,
7700 Bonhomme Avenue, Seventh Floor, St. Louis, MO 63105, and Robert
A. Lengeling and Thomas M. Beito, BEITO & LENGELING, PA, 310
Fourth Avenue South, Suite 1050, Minneapolis, MN 55415, for plaintiffs.
Seth J. Leventhal, LEVENTHAL, PLLC, 527 Marquette Avenue South,
Number 2100, Minneapolis, MN 55402, for defendant.

Defendant Uhura Russ, who posted under the username LadyFree28 on the
discussion forums of the website Allnurses.com, brings a motion to dismiss defamationrelated claims brought by Plaintiffs East Coast Test Prep LLC, doing business as Achieve
Test Prep, and its president Mark Olynyk (collectively, “ATP”). ATP brings a crossmotion to transfer the case to Pennsylvania. The Court will conclude that it lacks personal
jurisdiction over Russ, that Russ has not waived her right to assert a jurisdictional defense,
and that the interests of justice strongly favor dismissal over transfer. Accordingly, the
Court will deny ATP’s cross-motion, grant Russ’s motion, and dismiss the case.

BACKGROUND
These motions deal with the last vestiges of a sprawling defamation action brought
in response to a series of mildly disparaging remarks made about ATP by users of the
Minnesota-based website Allnurses.com.
Plaintiff East Coast Test Prep LLC is a New Jersey corporation doing business as
ATP. (3d Am. Compl. (“Compl.”) ¶ 1, Jan. 24, 2017, Docket No. 268.) Plaintiff Mark
Olynyk owns East Coast Test Prep and lives in New Jersey. (Id. ¶¶ 2, 26.) Former
Defendant Allnuses.com, Inc., is a Minnesota corporation operating the website
http://www.allnurses.com. (Id. ¶¶ 3-4.) Defendant Uhura Russ is a Pennsylvania resident
who actively posted to the Allnurses.com forums under the user name LadyFree28. (Id.
¶ 21.) She posted to the forum on average 26 times per month for nearly 10 years. (Id.
¶¶ 251-52.) Russ states by affidavit that she has no contacts of any kind with Minnesota.
(Decl. of Uhura Russ (“Russ Decl.”) ¶¶ 2-6, May 8, 2018, Docket 431.)
Russ participated in a discussion thread titled “Achieve Test prep…. anyone?” in
the Allnurses.com “Excelsior College Online Nursing” forum. (Compl. ¶¶ 63-64.) Users
in the thread discussed the merits (or lack thereof) of ATP’s test-prep services; the
allegedly defamatory statements included comments that Excelsior College warns students
about third-party test prep, that third-party test prep companies are redundant or obsolete
or will become so shortly, and that ATP was or is under federal investigation. (Id. ¶¶ 125,
139, 183, 188, 189, 210, 225, 228, 229.) ATP brought defamation, contract, fraud, and
trademark claims against Allnurses and its users, alleging that Allnurses schemed with its

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users and sponsors to post false statements about ATP that would drive potential customers
to ATP’s competitors. (See generally id.)
In September 2017, the Court dismissed ATP’s claims against Defendant Jennifer
Moeller, an Allnurses user, for lack of personal jurisdiction. (Order, Sept. 15, 2017, Docket
No. 414.) In January 2018, the Court dismissed all claims against Allnurses, moderator
Lisa Dukes, and the anonymous Defendants. East Coast Test Prep LLC v. Allnurses.com
(Dismissal Order), 307 F. Supp. 3d 952, 974-75 (D. Minn. 2018). The sole remaining
claims are the three counts against Russ: Defamation (Count 1), Trade Libel (Count 3) and
Tortious Interference with Prospective Economic Advantage (Count 14). Id. at 974.
Russ has filed four motions to dismiss those claims. In October 2016, Russ filed a
motion to dismiss the Second Amended Complaint and a counterclaim against ATP.
(Sealed Mot. to Dismiss, Oct. 3, 2016, Docket No. 188; Sealed Counterclaim, Oct. 3, 2016,
Docket No. 184.) Because Russ (then proceeding anonymously) included identifying
information in her filings, they were sealed and replaced by redacted versions. (Redacted
Counterclaim, Nov. 2, 2016, Docket No. 219; Am. Mem. Op. & Order, Oct. 26, 2016,
Docket No. 210; Redacted Mot. for Dismissal of Claim (“1st MTD”), Oct. 4, 2016, Docket
No. 188.) After the Magistrate Judge recommended granting ATP leave to file the Third
Amended Complaint, Russ filed a second motion to dismiss. (Mot. to Dismiss 3d Am.
Compl. (“2d MTD”), Feb. 16, 2017, Docket No. 291.) Subsequently, Russ’s first motion
to dismiss was denied as moot because the Second Amended Complaint was no longer
operative, and her second motion was denied without prejudice because Allnurses had
objected to the Magistrate Judge’s order allowing another amendment. East Coast Test
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Prep, LLC v. Allnurses.com, Inc. (1st R&R), No. 15-3705, 2017 WL 2480615 (D. Minn.
May 19, 2017), adopted by No. 15-3705, 2017 WL 2468960 (D. Minn. June 7, 2017). Russ
filed her third motion to dismiss after the objection was overruled. (2d Mot. to Dismiss 3d
Am. Compl. (“3d MTD”), July 2, 2017, Docket No. 369), but it was denied without
prejudice because she failed to articulate sufficient legal or factual support, East Coast Test
Prep, LLC v. Allnurses.com (2d R&R), No. 15-3705, 2017 WL 6459457 (D. Minn. Nov.
28, 2017), adopted by No. 15-3705, 2017 WL 6496435 (D. Minn. Dec. 18, 2017).
Russ has now filed her fourth motion to dismiss. (Mot. to Dismiss (“4th MTD”),
May 8, 2018, Docket No. 430.) Arguing for the first time with the benefit of counsel, Russ
explicitly moves to dismiss under Federal Rules of Civil Procedure 12(b)(2) and (3). (Id.)
ATP filed a cross-motion to transfer the case to the Eastern District of Pennsylvania. (Mot.
to Transfer, May 29, 2018, Docket No. 437.)
Those two motions are now before the Court.
DISCUSSION
Primarily at issue is whether the Court may assert personal jurisdiction over Russ.
The Court will conclude that it lacks personal jurisdiction over Russ because she lacks the
requisite minimum contacts with Minnesota and that she did not waive her right to assert
this jurisdictional defense because her pro se filings – when construed liberally – presented
challenges to personal jurisdiction and venue. Because transfer would not be in the interest
of justice, the Court will deny ATP’s cross-motion to transfer, grant Russ’s motion to
dismiss the charges against her, dismiss the counts against her, and dismiss this case.

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I.

MOTION TO DISMISS
A.

Personal Jurisdiction

Rule 12(b)(2) of the Federal Rules of Civil Procedure provides that a party may
move to dismiss claims for lack of personal jurisdiction. To survive a 12(b)(2) motion to
dismiss, the plaintiff must plead sufficient facts to support a reasonable inference that the
defendant can be subjected to personal jurisdiction. Creative Calling Sols., Inc. v. LF
Beauty Ltd., 799 F.3d 975, 979 (8th Cir. 2015). “[T]he action should not be dismissed for
lack of jurisdiction if the evidence, viewed in the light most favorable to [the plaintiff], is
sufficient to support a conclusion that the exercise of personal jurisdiction over [the
defendant] is proper.” Id. However, conclusory allegations devoid of a factual foundation
do not suffice. Dever v. Hentzen Coatings, Inc., 380 F.3d 1070, 1073-74 (8th Cir. 2004).
The Court may only exercise personal jurisdiction over a nonresident to the extent
that the exercise is authorized by Minnesota’s long-arm statute and consistent with the U.S.
Constitution’s Due Process Clause. Minn. Mining & Mfg. Co. v. Nippon Carbide Indus.
Co., Inc., 63 F.3d 694, 696-97 (8th Cir. 1995). Minnesota has interpreted its long-arm
statute to authorize personal jurisdiction “as far as the Due Process Clause of the federal
constitution allows.” Valspar Corp. v. Lukken Color Corp., 495 N.W.2d 408, 411 (Minn.
1992). Therefore, the Court need only determine whether exercise of personal jurisdiction
here would comport with due process. Minn. Mining & Mfg. at 697.
Due process requires sufficient “minimum contacts” with the forum state so as not
to offend “traditional notions of fair play and substantial justice.” Id. (citing Int’l Shoe Co.

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v. Washington, 326 U.S. 310, 316 (1945)). “The central question is whether a defendant
has purposefully availed itself of the privilege of conducting activities in the forum state
and should, therefore, reasonably anticipate being haled into court there.” Pecoraro v. Sky
Ranch for Boys, Inc., 340 F.3d 558, 562 (8th Cir. 2003) (citing Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 475 (1985)). In the Eighth Circuit, courts look to “(1) the nature
and quality of contacts with the forum state; (2) the quantity of such contacts; (3) the
relation of the cause of action to the contacts; (4) the interest of the forum state in providing
a forum for its residents; and (5) convenience of the parties.” Burlington Indus., Inc. v.
Maples Indus., Inc., 97 F.3d 1100, 1102 (8th Cir. 1996). “[D]ue process is satisfied if the
defendant has purposely directed its activities at forum residents, and the litigation results
from injuries arising out of, or relating to, those activities.” Id.
The sole Minnesota contacts plausibly alleged by ATP are Russ’s posts to the
Allnurses.com forum, which is operated by a Minnesota corporation.1 Although ATP

1

ATP also alleges that Russ consented to jurisdiction in Minnesota by agreeing to a
jurisdictional-consent term in the Allnurses.com terms of service agreement. (Defs.’ Mem. Opp.
Mot. to Dismiss at 4-5, May 29, 2018, Docket No. 436.) But ATP advances this argument only in
its briefing, which is insufficient to contest Russ’s affidavit. Dever, 380 F.3d at 1072-73.
Moreover, there is nothing in the record indicating that Russ agreed to the term: ATP alleges that
Russ last posted on April 5, 2015, (3d Am. Compl. ¶ 251), while the relevant term was added on
March 7, 2017, compare Terms of Service, Allnurses.com, https://allnurses.com/terms-info.html
(last visited August 9, 2018) (current agreement stating that the term was added on March 7, 2017),
with Terms of Service, WayBack Machine, https://web.archive.org/web/20170307063222/
https://allnurses.com/terms-info.html (last visited August 9, 2018) (March 7, 2017, Internet
Archive capture of the pre-update agreement). Finally, there is no reason to believe that ATP
would be party to an agreement between Allnurses and Russ in any event. This argument is so
implausible that it is difficult to imagine any legitimate purpose for bringing it. See Fed. R. Civ.
P. 11(b)(1).

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convincingly submits that Russ posted often on a Minnesota-based website, the other four
factors strongly disfavor finding jurisdiction. Her noncommercial2 posts “do[ ] little more
than make information available to those who are interested in it.” Lakin v. Prudential
Sec., 348 F.3d 704, 710-11 (8th Cir. 2003) (quoting Zippo Mfg. Co. v. Zippo Dot Com, Inc.,
952 F. Supp. 1119, 1124 (W.D. Pa. 1997)).3 ATP’s causes of action against Russ arise
from a single post, see Dismissal Order, 307 F. Supp. 3d at 959, so the relationship between
them and the totality of Russ’s contacts is tenuous. Neither Russ nor ATP are residents of
Minnesota. And Minnesota is an inconvenient forum for both parties.

ATP previously advanced the spurious allegation that Russ and other Allnurses users were
paid to post. (Compl. ¶¶ 254-255.) The Court found that allegation implausible because it lacked
even a “scintilla” of factual or evidentiary foundation. Dismissal Order, 307 F. Supp. 3d 952, 97172. As such, this allegation cannot confer personal jurisdiction. Dever, 380 F.3d at 1073.
2

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The Zippo test is generally used to determine whether a defendant availed itself of a
jurisdiction by placing the defendant’s website on a spectrum between one that “clearly does
business over the internet” and one that “does little more than make information available to those
who are interested in it,” with “interactive Web sites where a user can exchange information with
the host computer” in between. Lakin, 348 F.3d at 710-11 (quoting Zippo, 952 F. Supp. at 1124).
For instance, when ATP argued for jurisdiction over Allnurses in New Jersey based in part on Zippo,
the district court stated that Allnurses.com “appears to fall into the passive website category.”
(Order, Aug. 28, 2015, Docket No. 41.) But many courts have observed that Zippo is unilluminating
when, as here, the defendant posted content on a third-party website. See Foley v. Yacht Mgmt.
Grp., Inc., No. 08-7254, 2009 WL 2020776, at *3 n.1 (N.D. Ill. July 9, 2009) (collecting cases).
Nevertheless, the Eighth Circuit described Zippo as sparking at least an “instructive” flicker in such
situations. Johnson v. Arden, 614 F.3d 785, 796 (8th Cir. 2010). One district court concluded that
the Eighth Circuit must have analyzed the defendant’s posts, not the third-party website where they
were posted. Sioux Transp., Inc. v. XPO Logistics, Inc., No. 5:15-05265, 2015 WL 9412930, at *67 & nn.5-7 (W.D. Ark. Dec. 22, 2015) (applying Zippo to the defendant’s posts while questioning
the usefulness of doing so). Because it defies reason to analyze the nature of a website to determine
jurisdiction over its users, the Court takes the same approach here.

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Because it cannot be said that Russ purposefully availed herself of Minnesota – let
alone that she “purposely directed [her] activities at forum residents,” Burlington Indus.,
97 F.3d at 1102 – the Court concludes that it lacks personal jurisdiction over her.
B.

Waiver

Because the requirement of personal jurisdiction is an individual right that stems
from the Due Process Clause, a defendant may waive it. Ins. Corp. of Ir. v. Compagnie
des Bauxites des Guinee, 456 U.S. 694, 703 (1982). Although “waiver is ordinarily an
intentional relinquishment or abandonment of a known right or privilege,” Johnson v.
Zerbst, 304 U.S. 458, 464 (1938), a personal-jurisdictional defense may be unintentionally
waived by failing to raise it in a Rule 12 motion or responsive pleading, see Fed. R. Civ.
P. 12(h)(1). Here, there is no indication that Russ intended to relinquish her rights. As
such, the sole question is whether she did so unintentionally by failing to raise the defense
in her previous filings. The Court will conclude that she did not.
Pro se filings are held to a less stringent standard than formal submissions drafted
by lawyers, regardless of how inartfully pleaded they may be. See Estelle v. Gamble, 429
U.S. 97, 106 (1976); Haggy v. Solem, 547 F.2d 1363, 1364 (8th Cir. 1977). The question
is whether the pro se party “inartfully raised factual issues that implicated legal
propositions that [s]he could not reasonably be held responsible for articulating” such that
the filing may be reasonably construed as raising the legal proposition. Bracken v.
Dormire, 247 F.3d 699, 703 (8th Cir. 2001). The core argument contained in each of Russ’s
pro se pleadings may fairly be summed up as follows: “Why am I being haled into court

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in Minnesota?

I have nothing to do with this dispute!” Although this argument

undoubtedly presents a merits challenge, Russ has raised factual issues that implicate
jurisdictional and venue challenges as well.
Russ’s first motion to dismiss argued that she should be dismissed because there
was “NO BASIS in being attached to the complaint; [Russ] is not an interested business or
party affiliated with AllNurses.com.” (1st MTD at 2.) The Court construes this statement
as an argument that Russ did not have any commercial contacts with the state of Minnesota
and that there was no relation between her posts and ATP’s causes of action. Furthermore,
Russ filed a counterclaim the same day explaining that she was a Pennsylvania resident,
denying any compensatory relationship with Allnurses, and stating that she was unable to
secure pro bono representation due to the “location of [the] lawsuit and geographical
location.” (Redacted Counterclaim at 7.) The Court finds these facts sufficient to implicate
challenges to both personal jurisdiction and venue.4 As such, the Court construes Russ’s
first set of filings as raising both challenges.
Russ’s second motion to dismiss was brought when her first motion was still
pending. As such, it is of no moment whether the second motion raised a jurisdictional

Setting aside the fact that Russ’s counterclaim itself alleges facts sufficient to implicate a
jurisdictional challenge, ATP submits that Russ waived her right to assert a jurisdictional defense
simply filing a counterclaim. (Defs.’ Mem. Opp. Mot. to Dismiss at 2, 8, 10-11.) Not so. “The
general rule is that a defendant does not waive an asserted jurisdictional defense when [her filing]
also requests relief in the form of a counterclaim, a cross-claim, or a third-party claim.” United
States v. Ligas, 549 F.3d 497, 502 (7th Cir. 2008) (collecting cases). As such, this argument is not
“warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing
existing law or for establishing new law.” Fed. R. Civ. P. 11(b)(2).
4

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challenge. Nevertheless, the Court notes that Russ’s memorandum in support of her second
motion referenced facts contained in her contemporaneously-filed Proposed Amended
Counterclaim. (Mem. Supp. 2d MTD, Feb. 16, 2017, Docket No. 292.) Although Russ
was denied leave to amend, 1st R&R, 2017 WL 2468960 at *4, it is notable that the
Proposed Amended Counterclaim reiterated Russ’s factual allegations from her initial
counterclaim, (Proposed Am. Counterclaim at 7, Feb. 16, 2017, Docket No. 285). As such,
to the extent necessary, the Court construes Russ’s second set of filings as renewing her
challenges to both jurisdiction and venue.
Russ’s third motion to dismiss was brought after the first two were denied and the
Court accepted ATP’s Third Amended Complaint. As the Magistrate Judge noted in his
R&R, Russ’s third motion to dismiss also “appears to question jurisdiction.” 2d R&R,
2017 WL 6459457 at *3. Russ sought dismissal on the grounds of a due process violation
and again referenced her counterclaim. (3d MTD at 1, 4.) And Russ’s memorandum in
support of her third motion stated that she “does not live in Minnesota or in New Jersey,
nor does business in either of the aforementioned states and has lived in Pennsylvania for
almost 30 years.” (Mem. Supp. 3d MTD, July 5, 2017, Docket No. 370.) As such, the
Court construes Russ’s third motion to dismiss as renewing her challenge to jurisdiction –
and finds that her still-operative counterclaim provides an independent ground for her to
maintain her challenges to both jurisdiction and venue.
To compel a pro se defendant who did not purposely direct any activities at this
state and repeatedly attempted to challenge the Court’s authority to hear her case to appear
in Minnesota would contradict the notion of fair play and justice fundamental to personal
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jurisdiction. Because personal jurisdiction is a due process right, pro se motions are to be
liberally construed, and Russ has consistently alleged facts sufficient to challenge personal
jurisdiction, the Court concludes that she did not waive her right to do so.
II.

CROSS-MOTION FOR TRANSFER
ATP argues that the Court must consider whether this case should be transferred to

the Eastern District of Pennsylvania, where Russ resides. Per statute, when a “a civil action
is filed in a court . . . and that court finds that there is a want of jurisdiction, the court shall,
if it is in the interest of justice, transfer” the case to a court where it could have been initially
brought. 28 U.S.C. § 1631.
As an initial matter, the plain text of the statute suggests that it does not apply here:
ATP filed this action in New Jersey state court; it was transferred here. Moreover, although
the plain text of the statute suggests that it applies whenever jurisdiction is wanting, the
Eighth Circuit has explained that “Section 1631 was enacted so that parties confused about
which court has subject-matter jurisdiction would not lose an opportunity to present the
merits of a claim by filing in the wrong court and then, upon dismissal, having the claim
barred by a statute of limitations.” Gunn v. U.S. Dep’t of Agric., 118 F.3d 1233, 1240 (8th
Cir. 1997). “Although the courts are rather evenly divided on the subject, the better view
is that Section 1631 is limited to subject matter jurisdiction defects and does not address
problems with personal jurisdiction or venue.” 15 Charles Alan Wright & Arthur Miller,
Federal Practice and Procedure § 3842 (4th ed.). Because Russ is successfully challenging

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personal jurisdiction, not subject-matter jurisdiction, it is not at all clear that Section 1631
applies in this case.
However, in a recent unpublished opinion, the Eighth Circuit remanded a case for a
district court to consider whether transfer was appropriate when the district court lacked
personal jurisdiction. Johnston v. Wilkins, 709 F. App’x 404, 405 (8th Cir. 2018); see also
Preston v. Wisc. Staffing Servs., Inc., No. 12-797, 2012 WL 2906589, at *1 (D. Minn. July
16, 2012). As such, out of an abundance of caution, the Court proceeds with the Section
1631 analysis. It will be quick work, because ATP has submitted no argument as to why
transfer would be in the interests of justice – and the Court can conceive of none. “The
phrase ‘if it is in the interest of justice’ relates to claims which are nonfrivolous and as such
should be decided on the merits.” Galloway Farms, Inc. v. United States, 834 F.2d 998,
1000 (Fed. Cir. 1987) (interpreting Section 1631). The Court has dismissed every claim
against every other defendant in this case – almost all on the merits. See Dismissal Order,
307 F. Supp. 3d 952 at 974-75. As such, the interests of justice counsel dismissal, not
transfer. The Court will therefore deny ATP’s motion to transfer, grant Russ’s motion to
dismiss, and end this case.
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1. Defendant Uhura Russ’s Motion to Dismiss [Docket No. 430] is GRANTED.
2. Plaintiffs’ Cross-Motion to Transfer [Docket No. 437] is DENIED.

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3. The present action is DISMISSED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED: August 9, 2018
at Minneapolis, Minnesota.

_______s/John R. Tunheim______
JOHN R. TUNHEIM
Chief Judge
United States District Court

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