PACHECO v. PADJAN et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE GENE E.K. PRATTER ON 7/28/2017. 7/28/2017 ENTERED AND COPY E-MAILED AND MAILED TO DEFENDANT PADJAN.(sme, ) Modified on 7/28/2017 (sme, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JULY 28, 2017
Elis Pacheco moves for entry of default judgment against Sandra Padjan on Counts I
(defamation) and II (false light) of Mr. Pacheco’s Complaint. Because the Court finds that it
does not have personal jurisdiction over Ms. Padjan, the Court must deny Mr. Pacheco’s Motion
and dismiss his Complaint without prejudice.
FACTUAL AND PROCEDURAL BACKGROUND
Mr. Pacheco filed a Complaint against Ms. Padjan and Xcentric Ventures, LLC on July 1,
2016 seeking monetary damages for defamation, false light (invasion of privacy), and tortious
interference in business relations. Mr. Pacheco also sought an injunction requiring Defendants to
remove the alleged defamatory statements from the Internet.
Mr. Pacheco’s Complaint alleges that Ms. Padjan posted false and defamatory statements
about him on websites operated by Xcentric. Mr. Pacheco alleges that these websites operate as
forums for posters to lodge complaints against individuals and business entities. The statements
allegedly made by Ms. Padjan included statements that Mr. Pacheco is “nothing but a filthy
criminal” and “steals from others.” Compl. ¶ 9 (Doc. No. 1). Due to Ms. Padjan’s statements,
Mr. Pacheco claims he suffered irreparable damage to his reputation and lost prospective
Mr. Pacheco subsequently entered into a stipulation of dismissal with Xcentric as to
Xcentric only on December 20, 2016.
Mr. Pacheco was initially unable to effectuate service on Ms. Padjan because Mr.
Pacheco could not locate Ms. Padjan or identify an active address for Ms. Padjan. At the Court’s
direction, Mr. Pacheco detailed his efforts to serve Ms. Padjan. Mr. Pacheco first hired a
professional process server to effectuate personal service at Ms. Padjan’s last known place of
business in Orange County, California. After repeated efforts to serve Ms. Padjan and inquiries
with neighbors, the process server concluded Ms. Padjan was no longer located at the suspected
address. Mr. Pacheco then attempted to locate Ms. Padjan by searching the Internet, telephone
directories, and property tax records. Mr. Pacheco also enlisted the assistance of a collection law
firm to locate Ms. Padjan. These efforts did not result in identifying an address for Ms. Padjan.
The Court, determining that Mr. Pacheco demonstrated due diligence in his efforts to locate Ms.
Padjan, accepted Mr. Pacheco’s service on Ms. Padjan by publication pursuant to Fed. R. Civ. P.
4(e)(1) and Cal. R. Civ. P. 415.50.
Mr. Pacheco moved the Clerk of Court for entry of default after Ms. Padjan failed to
respond to the Complaint. The Clerk of Court entered default on March 16, 2017 due to Ms.
Padjan’s failure to appear, plead, or otherwise defend this action. Mr. Pacheco then moved for
entry of default judgment against Ms. Padjan. After receiving Mr. Pacheco’s motion for default
judgment, the Court ordered Mr. Pacheco to submit a brief detailing, among other items, the
Court’s basis of personal jurisdiction over Ms. Padjan.
Federal Rule of Civil Procedure 55 governs the procedure a plaintiff must follow to
obtain a default judgment against a nonresponsive defendant. First, if the plaintiff shows the
defendant’s “fail[ure] to plead or otherwise defend, . . . the clerk must enter [the defendant’s]
default,” Fed. R. Civ. P. 55(a), which is only valid if the defendant was properly served. See
Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1304 (3d Cir. 1995).
The plaintiff may then “apply to the court for a default judgment.” Fed. R. Civ. P.
55(b)(2). The court’s initial inquiry is “whether the unchallenged facts constitute a legitimate
cause of action.” 10A Charles Alan Wright, Arthur R. Miller, et al., Federal Practice and
Procedure § 2688.1 (4th ed.) (citing cases). As at the motion to dismiss stage, the court accepts
as true the well-pleaded factual allegations in the plaintiff’s complaint, except those relating to
damages, as though they were admitted or established by proof, Comdyne I, Inc. v. Corbin, 908
F.2d 1142, 1149 (3d Cir. 1990), as well as all reasonable inferences that can be drawn from the
complaint, see Yang v. Hardin, 37 F.3d 282, 286 (7th Cir. 1994). Conclusory allegations and the
parties’ legal theories or “conclusions of law” are not entitled to the same presumption and are
not deemed admitted. See, e.g., Wright & Miller, supra, § 2688.1.
Before a court may enter default judgment, the court must ensure “that it has personal
jurisdiction over the party against whom default judgment is requested.” D'Onofrio v. Il
Mattino, 430 F. Supp. 2d 431, 437 (E.D. Pa. 2006); see also Allaham v. Naddaf, 635 F. App’x
32, 36 (3d Cir. 2015) (“While unlike subject matter jurisdiction, a court generally may not raise
personal jurisdiction sua sponte, when a default judgment is requested, a court is required to
make a threshold determination regarding any jurisdictional defects.”). A judgment entered
against a defendant over whom a court does not have personal jurisdiction is void. Budget
Blinds, Inc. v. White, 536 F.3d 244, 258 (3d Cir. 2008). Accordingly, when faced with a motion
for default judgment against a defendant over whom the court cannot exercise personal
jurisdiction, a court “has discretion to dismiss the action sua sponte.” D'Onofrio, 430 F. Supp.
2d at 436 (citing cases).
When considering a motion for default judgment, a court must “accept as true the
jurisdictional allegations in the complaint,” as a plaintiff is only required to make a “prima facie
showing of personal jurisdiction.” Id. at 439.
Mr. Pacheco argues that this Court has personal jurisdiction over Ms. Padjan because Ms.
Padjan created the necessary minimum contacts with the forum by posting the alleged
defamatory statements on the Internet. Mr. Pacheco also argues that Ms. Padjan should have
reasonably anticipated being sued in this District so that the Court’s exercise of personal
jurisdiction over Ms. Padjan would comport with “traditional notions of fair play and substantial
justice,” see Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945), because: (i) Mr. Pacheco’s
principle place of business is New York, (ii) Mr. Pacheco resides in New Jersey, and (iii) Mr.
Pacheco conducts business in Pennsylvania. The Court does not agree.
Principles of Personal Jurisdiction
A court looks to the law of the jurisdiction in which it sits when determining whether it
has personal jurisdiction over a defendant. O’Connor v. Sandy Lane Hotel Co., Ltd., 496 F.3d
312, 316 (3d Cir. 2007) (citing Fed. R. Civ. P. 4(k)(1)(A)). Pennsylvania’s long-arm statute
permits personal jurisdiction over a defendant “based on the most minimum contact with th[e]
Commonwealth allowed under the Constitution of the United States.” Id. (quoting 42 Pa. C.S. §
5322(b)). Thus, federal courts in Pennsylvania can exercise personal jurisdiction over
nonresident defendants in accordance with the Fourteenth Amendment’s Due Process Clause.
Mellon Bank (East) PSFS, Nat’l Ass’n v. Farino, 960 F.2d 1217, 1221 (3d Cir. 1992). The
exercise of personal jurisdiction over a defendant comports with the Fourteenth Amendment
when the nonresident defendant has “certain minimum contacts with [the forum] such that the
maintenance of the suit does not offend traditional notions of fair play and substantial justice.”
Int’l Shoe, 326 U.S. at 316 (internal quotation marks omitted).
There are two types of personal jurisdiction that a court can exercise over a defendant:
general jurisdiction and specific jurisdiction. O’Connor, 496 F.3d at 317. Here, Mr. Pacheco
does not appear to argue that this Court has general jurisdiction over Ms. Padjan. 1 Accordingly,
the Court’s analysis will focus on whether it can exercise specific jurisdiction over Ms. Padjan.
When faced with the question of whether to exercise specific personal jurisdiction over a
nonresident defendant who made allegedly defamatory statements, courts look to the “effects
test” set forth in Calder v. Jones, 465 U.S. 783 (1984). Marten v. Godwin, 499 F.3d 290, 298
(3d Cir. 2007); IMO Indus. v. Kiekert AG, 155 F.3d 254, 260-61 (3d Cir. 1998); Gorman v.
Jacobs, 597 F. Supp. 2d 541, 546 (E.D. Pa. 2009). 2 The “effects test” requires a plaintiff to
(1) The defendant committed an intentional tort; (2) The 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; [and] (3) The 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[.]
“General jurisdiction is based upon the defendant’s ‘continuous and systematic’ contacts
with the forum.” Remick v. Manfredy, 238 F.3d 248, 255 (3rd Cir. 2001). Mr. Pacheco has
presented no facts that could plausibly lead to the conclusion that Ms. Padjan has, or had,
continuous and systematic contacts with Pennsylvania.
The Court notes that the brief submitted by Plaintiff’s counsel in response to the Court’s
specific request to address the propriety of personal jurisdiction in this case fails to cite Calder
(United States Supreme Court precedent), Marten (Third Circuit Court of Appeals Precedent), or
IMO (Third Circuit Court of Appeals precedent), which all bear directly on this issue.
IMO Indus., 155 F.3d at 265-66. A plaintiff can only satisfy the effects test by pointing “to
contacts which demonstrate that the defendant expressly aimed its tortious conduct at the forum,
and thereby made the forum the focal point of the tortious activity.” Id. at 265 (emphasis in
original). A plaintiff cannot satisfy Calder merely by demonstrating that “the harm caused by
the defendant's intentional tort is primarily felt within the forum.” Id.
When a court applies the “effects test” in the context of Internet usage, the jurisdictional
framework set out in Zippo Mfg. Co. v. Zippo Dot Com., Inc., 952 F. Supp. 1119 (W.D. Pa.
1997), is widely accepted as the best approach to assess whether a nonresident defendant’s
Internet usage justifies the exercise of personal jurisdiction. Gorman, 597 F. Supp. 2d at 547. In
the context of a user of an Internet website, courts in this District have interpreted the Zippo
analysis to focus on whether a defendant’s use of a website “was expressly aimed at the forum
state.” Id.; see also Patchen v. McGuire, No. 11-5388, 2012 WL 4473233, at *5 (E.D. Pa. Sept.
Calder Test Application
Even taking all of Mr. Pacheco’s non-conclusory allegations as true, 3 Mr. Pacheco has
not satisfied the Calder effects test. While Mr. Pacheco satisfactorily pleaded that Ms. Padjan
committed an intentional tort, he failed to demonstrate that he “felt the brunt of the harm” in
Pennsylvania or that Ms. Padjan “expressly aimed [her] tortious conduct” towards
Mr. Pacheco’s Complaint states in a conclusory fashion that Ms. Padjan “does business in
the United States and within this District.” Compl. ¶ 4. Mr. Pacheco has presented no facts to
the Court to support this conclusory allegation.
The Court notes that a plaintiff’s failure to satisfy the third Calder factor is alone
sufficient to find that personal jurisdiction does not exist. See Marten, 499 F.3d at 297 (“Only if
the ‘expressly aimed’ element of the effects test is met need [a court] consider the other two
elements.”). The Court will nonetheless consider the entire Calder test.
Calder Factor 2 – “focal point of the harm”
Mr. Pacheco does not allege that he felt the “brunt of the harm” in Pennsylvania. Mr.
Pacheco readily admits in his filings that his principle place of business is in New York and that
he resides in New Jersey. The fact that Mr. Pacheco conducts some business in Pennsylvania
and can identify a single client that has stopped doing business with him after reading the
allegedly defamatory comments, see Rosen Declaration ¶¶ 6, 8 (Doc. No. 26), is not sufficient to
establish personal jurisdiction pursuant to the Calder effects test. The Third Circuit Court of
Appeals explicitly stated that a plaintiff cannot satisfy Calder by demonstrating that “the harm
caused by the defendant’s intentional tort is primarily felt within the forum.” IMO Indus., 155
F.3d at 265. Accordingly, the fact that Mr. Pacheco experienced some harm in Pennsylvania is
certainly not sufficient to satisfy the second prong of the effects test, let alone establish specific
jurisdiction over Ms. Padjan. See Marten, 499 F.3d at 297 (“[T]he effects test prevents a
defendant from being haled into a jurisdiction solely because the defendant intentionally caused
harm that was felt in the forum state if the defendant did not expressly aim his conduct at that
Calder Factor 3 – “focal point of the tortious activity”
Mr. Pacheco does not argue that Ms. Padjan’s use of the subject websites to allegedly
defame Mr. Pacheco was specifically targeted at Pennsylvania. Rather, Mr. Pacheco argues that
Ms. Padjan should have reasonably anticipated being sued in this District because Mr. Pacheco’s
place of business and residence are in states adjacent to Pennsylvania. Not only does Mr.
Pacheco fail to address the jurisdictional analysis most relevant to this case (the Calder test), but
he incorrectly focuses on his own contacts to Pennsylvania rather than Ms. Padjan’s contacts
with Pennsylvania. See Pennzoil Prods. Co. v. Colelli & Assocs., 149 F.3d 197, 201 (3rd Cir.
1998) (explaining that the first step in the specific jurisdiction analysis is determining “whether
the defendant [has] the minimum contacts with the form necessary for the defendant to have
‘reasonably anticipate[d] being haled into court there” (emphasis added) (citation omitted)); see
also Marten, 499 F.3d at 296-98 (explaining the difference between the Calder effects test and
the traditional specific jurisdiction analysis). As far as the Court can tell, Ms. Padjan has no
contacts with Pennsylvania for her to reasonably anticipate being sued in this District. 5 Nor do
the facts contained in Mr. Pacheco’s Complaint or subsequent briefing demonstrate that Ms.
Padjan expressly aimed her conduct at Pennsylvania.
There is no single formula for triggering a personal jurisdiction finding under Calder. A
plaintiff can demonstrate that an Internet post targeted a specific forum by, for example,
demonstrating that (i) that the website itself focused on a specific geographic area or (ii) the
content of the post targeted a specific geographic area. Gorman, 597 F. Supp. 2d at 548.
Courts are reluctant to exercise personal jurisdiction over a nonresident Internet user
without evidence that the alleged tortious activity was explicitly directed at the forum. Gorman
is instructive here. In Gorman, a Pennsylvania doctor sued defendants for defamation based on
comments posted to a website. Id. at 543. The court found that it had no personal jurisdiction
over the defendants because the website itself was not Pennsylvania-specific and the content of
the postings were not specifically targeted at Pennsylvania. Id. at 550-51. The court emphasized
that the defendants’ mere knowledge that the plaintiff resided or worked in Pennsylvania was not
sufficient to establish specific personal jurisdiction over the defendants. Id.
When a plaintiff alleges that a nonresident defendant has committed an intentional tort
and that defendant does not have sufficient “minimum contacts” with the forum state, the
plaintiff must meet the Calder test to establish personal jurisdiction. See IMO Indus., 155 F.3d at
260 (“Generally speaking, under Calder an intentional tort directed at the plaintiff and having
sufficient impact upon it in the forum may suffice to enhance otherwise insufficient contacts with
the forum such that the ‘minimum contacts’ prong of the Due Process test is satisfied.”).
Here, there is nothing about the websites on which Ms. Padjan allegedly posted that is
specific to Pennsylvania. See Barrett v. Catacombs Press, 44 F. Supp. 2d 717, 727 (E.D. Pa.
1999) (noting that information posted on a website that is available worldwide does not show an
intent to target Pennsylvania residents with such information). Furthermore, the contents of the
posts allegedly authored by Ms. Padjan do not specifically target, mention, or reference
No facts have been presented to the Court to suggest that Ms. Padjan was aware that Mr.
Pacheco conducted business in Pennsylvania. In fact, the evidence Mr. Pacheco presented to the
Court suggests quite the opposite—the content of Ms. Padjan’s posts specifically state that Mr.
Pacheco conducts business in New York and New Jersey. The posts do not mention
Pennsylvania. See, e.g., Marks v. Alpha Grp., No. 08-5651, 2009 WL 1838358, at *6 (E.D. Pa.
June 25, 2009) (finding no personal jurisdiction over defendants when their Internet activity
described plaintiffs as operating in the U.S., U.K., and Russia, but not Pennsylvania). Even if
Mr. Pacheco could establish that Ms. Padjan knew that he conducted business in Pennsylvania,
such knowledge would not suffice to establish this Calder factor. See Gorman, 597 F. Supp. 2d
at 550 (explaining that the defendant’s knowledge that the plaintiff lived and worked in
Pennsylvania was not enough to establish personal jurisdiction under Calder).
Simply put, nothing about the websites themselves or Ms. Padjan’s alleged posts
demonstrate that Pennsylvania was the “focal point” of Ms. Padjan’s alleged conduct or that Ms.
Padjan knew Mr. Pacheco would feel the effects of her statements in Pennsylvania.
Accordingly, Mr. Pacheco has not satisfied that third Calder factor.
For the foregoing reasons, the Court will deny Plaintiff’s Motion for Default Judgment.
An appropriate Order follows.
BY THE COURT:
S/Gene E.K. Pratter
GENE E.K. PRATTER
United States District Judge
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