AARDVARK EVENT LOGISTICS, INC. v. BOBCAR MEDIA, LLC et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE THOMAS N. ONEILL, JR ON 1/5/2017. 1/5/2017 ENTERED AND COPIES E-MAILED.(kp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
AARDVARK EVENT LOGISTICS, INC.
BOBCAR MEDIA LLC, GOLDBERG
COHEN, LLP and MORRIS E. COHEN
January 5, 2017
Plaintiff Aardvark Event Logistics, Inc. filed suit against three New York citizens—
Bobcar Media LLC, Bobcar’s intellectual property counsel Morris E. Cohen and Attorney
Cohen’s firm Goldberg Cohen LLP—alleging that these defendants intentionally disparaged
plaintiff in an effort to gain a competitive advantage over plaintiff and interfere with its existing
and prospective business relations. Defendants have now moved to dismiss the complaint on the
grounds of personal jurisdiction. For the following reasons, I will grant the motion and dismiss
According to the facts set forth in plaintiff’s complaint, 1 plaintiff Aardvark Event
Logistics, Inc., a corporation organized and with its principal place of business in Pennsylvania,
When determining whether to grant a motion to dismiss, a federal court must construe the
complaint liberally, accept all well-pleaded factual allegations in the complaint as true and draw
all reasonable inferences in favor of the plaintiff. Fowler v. UPMC Shadyside, 578 F.3d 203,
211 (3d Cir. 2009). In accordance with this principle, my recitation of the facts assumes the truth
of the factual statements in the complaint.
is a leading experiential and event mobile marketing firm that provides custom-tailored, built-toorder promotional vehicles for mobile tours, trade shows and a wide variety of other event
marketing programs. Compl. ¶¶ 7, 13. Defendant Bobcar Media, LLC, a limited liability
company organized and with its principal place of business in New York, is Aardvark’s direct
competitor in the mobile and experiential marketing space. Id. ¶¶ 8, 14. Defendant Goldberg
Cohen LLP (GC), a limited liability partnership organized in and with its principal place of
business in New York, is a law firm that serves as litigation counsel to Bobcar. Id. ¶¶ 9, 15.
Defendant Morris Cohen, a New York citizen, is an attorney practicing in the state of New York
with the GC law firm. Id. ¶ 10.
On February 4, 2016, Bobcar—through GC and Cohen—filed a complaint in the United
States District Court for the Southern District of New York alleging that Aardvark infringed
Bobcar’s patents and trade dress (the New York Action). Id. ¶ 16. In response to a motion to
dismiss, Bobcar filed two amended complaints, the second of which was docketed on April 20,
2016. Id. ¶¶ 18–19. On May 11, 2016, Aardvark moved to dismiss Bobcar’s second amended
complaint and, to date, the state court has not decided that motion. Id. ¶ 20.
Shortly after the New York Action commenced, defendants purportedly constructed a
scheme to malign Aardvark’s reputation within the business community and disrupt Aardvark’s
current and future business relationships with clients. Id. ¶¶ 21, 22. On May 2, 2016, Bobcar,
through GC and Cohen, wrote a letter to the California offices of Samsung Electronics—a client
for whom Aardvark is currently providing mobile marketing services—advising Samsung that
Bobcar filed a lawsuit against Aardvark’s allegedly infringing activities and apparently seeking
to influence Samsung not to do business with Aardvark. Id. ¶ 24. Specifically, the letter stated,
We trust that Samsung appreciates Bobcar Media’s concerns about
its valuable intellectual property, and the importance of that
intellectual property to Bobcar Media’s business and its
relationships with its customers. As a result, this information is
being provided so that Samsung can consider and evaluate it
further, particularly in guiding its business activities accordingly
and choosing its preferred service providers and partners.
Id. ¶ 34. Defendants informed Samsung that its use of Aardvark’s Aardy vehicle would
constitute infringement. Id. ¶ 26. The letter also enclosed a copy of Bobcar’s second amended
complaint in the New York action. Id. ¶ 33. Notably, Samsung was previously a client of
Bobcar. Id. ¶ 28.
In addition, on August 9, 2016, Bobcar, through GC and Cohen, sent a letter to the
Minnesota-based senior management of Wireless Vision, LLC, who is also a current customer of
Aardvark. Id. ¶ 35. Defendants advised Wireless Vision about the New York Action, enclosed a
copy of the second amended complaint, indicated that Aardvark’s Aardy promotional vehicle is
an infringement of six of Bobcar’s patents, threatened Wireless Vision that its use of Aardvark’s
Aardy vehicle would constitute infringement and tried to procure Wireless Visions’ business by
stating Bobcar “is always interested in expanding its innovative services to potential partners
such as Wireless Vision, continuing the tradition of very productive relationships that Bobcar
Media has had with its clients in the past.” Id. ¶¶ 35–40. The letter further contained language
similar to that found in the Samsung letter. Id. ¶ 42. Unlike Samsung, Wireless Vision never
had a commercial relationship with Bobcar. Id. ¶ 41.
Defendants also allegedly disparaged Aardvark through oral communications. Id. ¶ 43.
For example, on May 5, 2016, Bobcar attended the Event Marketer Summit in Denver, Colorado,
one of the largest conferences for the mobile and experiential marketing industry in the United
States. Id. ¶ 45. At that time, Bobcar made statements to at least one of Aardvark’s existing
clients concerning Aardvark’s business practices in light of the allegations contained in the New
York action. Id. ¶ 45. Bobcar further suggested this company should not do business with
Aardvark as a result of Aardvark’s failure to follow the law, and should instead consider using
Bobcar for its mobile marketing needs. Id.¶ 47.
On September 21, 2016, Aardvark initiated the present suit in the Pennsylvania Court of
Common Pleas for Montgomery County alleging tortious interference with existing and
prospective contractual relations, defamation and civil conspiracy. Compl., ECF No. 1, Ex. A.
On November 14, 2015, defendants removed the action to federal court. Notice of Removal,
ECF No. 1. Although plaintiff moved to remand the case to state court on the ground that the
notice of removal was untimely, I denied that motion in a memorandum and order dated
December 21, 2016. ECF Nos. 13 & 14.
On November 21, 2016, defendants moved to dismiss the case for lack of personal
jurisdiction. ECF No. 5. Plaintiff responded on December 8, 2016, and Defendants filed a reply
brief on December 20, 2016. ECF Nos. 10 & 12.
STANDARD OF REVIEW
Motions to dismiss for lack of personal jurisdiction under Federal Rule of Civil
Procedure 12(b)(2) require the court to accept as true the allegations of the pleadings and all
reasonable inferences therefrom, and to resolve all factual disputes in favor of the plaintiff. Fed.
R. Civ. P. 12(b)(2); see also Pinker v. Roche Holdings Ltd., 292 F.3d 361, 368 (3d Cir. 2002).
The rule, however, “does not limit the scope of the court’s review to the face of the pleadings;”
rather the court must also consider any affidavits submitted by the parties. Scott v. Lackey, No.
02-1586, 2005 WL 2035598, at *1 (M.D. Pa. Aug. 11, 2005).
Although a defendant has the initial burden of raising the lack of personal jurisdiction
defense, once such a defense is raised, the burden shifts to plaintiff to establish facts that support
an exercise of personal jurisdiction. Provident Nat’l. Bank v. Cal. Fed. Sav. & Loan Ass’n, 819
F.2d 434, 437 (3d Cir. 1987); Cumberland Truck Equip. Co. v. Detroit Diesel Corp., 401 F.
Supp. 2d 415, 418 (E.D. Pa. 2005). Plaintiff may do so through affidavits or competent evidence
establishing sufficient contacts with the forum state. De Lage Landen Fin. Servs., Inc. v. Rasa
Floors, LP, No. 08-0533, 2008 WL 4822033, at *3 (E.D. Pa. Nov. 4, 2008). Such contacts must
be shown with “reasonable particularity.” Mellon Bank (East) PSFS, Nat’l Ass’n v. Farino, 960
F.2d 1217, 1223 (3d Cir. 1992), quoting Provident, 819 F.2d at 437. If plaintiff meets this
burden, defendant must then set forth the presence of other considerations that render personal
jurisdiction unreasonable. De Lage Landen, 2008 WL 4822033, at *3, citing Carteret Sav. Bank
v. Shushan, 954 F.2d 141, 150 (3d Cir. 1992).
Plaintiff has not established that this court has personal jurisdiction over defendants in
this case. Under Federal Rule of Civil Procedure 4(k)(1)(A), a federal court may exercise
personal jurisdiction over a non-resident defendant to the extent provided by the law of the state
in which the federal court sits. Fed. R. Civ. P. 4(k)(1)(A); see also Martin v. Citizens Fin. Group,
Inc., No. 10-260, 2010 WL 3239187, at *3 (E.D. Pa. Aug. 13, 2010). Pennsylvania law, which
governs the present case, necessitates the application of Pennsylvania’s long-arm statute, 42 Pa.
C.S. § 5322. Under this statute, personal jurisdiction of Pennsylvania courts over nonresident
defendants is permitted “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. § 5322(b); see Mellon Bank, 960 F.2d at
1221 (“The Pennsylvania statute permits the courts of that state to exercise personal jurisdiction
over nonresident defendants to the constitutional limits of the due process clause of the
fourteenth amendment.”). Therefore, a court need only inquire whether the exercise of personal
jurisdiction over the defendant would be constitutional under the Due Process Clause. Mellon
Bank, 960 F.2d at 1221. Pursuant to such constitutional considerations, physical presence within
the forum is not required to establish personal jurisdiction over a nonresident defendant. IMO
Indus., Inc. v. Kiekert AG, 155 F.3d 254, 259 (3d Cir. 1998). Instead, personal jurisdiction may
be based on either a defendant’s general contacts or his specific contacts with the forum. Gen.
Elec. Co. v. Deutz AG, 270 F.3d 144, 150 (3d Cir. 2001).
“General jurisdiction depends on a defendant having maintained ‘continuous and
systematic contacts’ with the forum state.” D’Jamoos ex rel. Weingeroff v. Pilatus Aircraft Ltd.,
566 F.3d 94, 107 (3d Cir. 2009), citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466
U.S. 408, 415–16 (1984). Proof of such contact requires a showing of “extensive and pervasive”
activity in the forum state. See Reliance Steel Prods. Co. v. Watson, Ess, Marshall, & Engass,
675 F.2d 587, 589 (3d Cir. 1982) (quotations omitted). The defendant’s contacts need not be
related to the cause of action being litigated. McMullen v. Eur. Adoption Consultants, Inc., 109
F. Supp. 2d 417, 418 (W.D. Pa. 2000). Rather, if the foreign defendant “maintains ‘continuous
and systematic’ contacts with a state, the state has general personal jurisdiction over the party,
and the non-resident may be sued in that state on any claim.” Wilmington Fin., Inc. v. Moonis,
No. 08-2365, 2008 WL 4661033, at *3 (E.D. Pa. Oct. 21, 2008) (quotations omitted).
In the absence of “continuous and systematic” contacts, a plaintiff may rely on “specific
jurisdiction” where the cause of action is related to or arises out of the defendant’s contacts with
the forum. IMO Indus., 155 F.3d at 259, citing Helicopteros, 466 U.S. at 414 n.8. Specific
jurisdiction under the Due Process Clause requires satisfaction of a three-part inquiry. Louis A.
Grant, Inc. v. Hurricane Equip., Inc., No. 07-438, 2008 WL 892152, at *3 (W.D. Pa. Apr. 2,
2008). First, the plaintiff needs to show that the defendant has “constitutionally sufficient
‘minimum contacts’ with the forum.” IMO Indus., 155 F.3d at 259, citing Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 474 (1985). Second, the plaintiff’s claim must “arise out of or relate
to those activities.” Helicopteros, 466 U.S. at 414. Third, the court should consider additional
factors to ensure that the exercise of jurisdiction otherwise “comport[s] with ‘fair play and
substantial justice.’” 2 Burger King, 471 U.S. at 476, quoting Int’l Shoe Co. v. Washington, 326
U.S. 310, 320 (1945); see also O’Connor v. Sandy Lane Hotel Co., Ltd., 496 F.3d 312, 317 (3d
In the case of an intentional tort claim, however, the first and second factors of the
specific jurisdiction analysis may be replaced by the “effects” test articulated by the United
States Supreme Court in Calder v. Jones, 465 U.S. 783 (1984). See IMO Indus., 155 F.3d at 265
(adopting Calder “effects” test). “Under the effects test, a court may exercise personal
jurisdiction over a nonresident defendant who acts outside the forum state to cause an effect
upon the plaintiff within the forum state.” Carteret Sav. Bank, FA v. Shushan, 954 F.2d 141, 148
(3d Cir. 1992). To establish personal jurisdiction pursuant to the Calder “effects” test, a plaintiff
must show that: (1) the defendant committed an intentional tort; (2) the plaintiff felt the brunt of
The United States Supreme Court has identified five factors that courts should consider when
balancing jurisdictional reasonableness, including: (1) the burden on defendants; (2) the forum
state’s interest in adjudicating the dispute; (3) plaintiff’s interest in obtaining convenient and
effective relief; (4) the interstate and international judicial system’s interest in obtaining the most
efficient resolution of controversies; and (5) the shared interest for the several states in furthering
fundamental substantive social policies. O’Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 324
(3d Cir 2007), citing Burger King, 471 U.S. at 477 and Asahi Metal Indus. Co. v. Superior Court,
480 U.S. 102, 113 (1987).
the harm in the forum such that the forum can be said to be the focal point of the resulting harm;
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. See IMO Indus., 155 F.3d at 265-66. The
Court of Appeals has recognized, however, that Calder did not “carve out a special intentional
torts exception to the traditional specific jurisdiction analysis, so that a plaintiff could always sue
in his or her home state.” Id. at 265. Rather, Calder simply acknowledged that “the unique
relations among the defendant, the forum, the intentional tort, and the plaintiff may under certain
circumstances render the defendant’s contacts with the forum—which otherwise would not
satisfy the requirements of due process—sufficient.” Id. Finally, even where the three-pronged
effects test is satisfied, a reviewing court must still ensure that the exercise of jurisdiction
otherwise “comport[s] with ‘fair play and substantial justice.’” Burger King, 471 U.S. at 476
(quoting Int’l Shoe, 326 U.S. at 320).
In the present case, plaintiff does not assert that the court has general jurisdiction over
defendants, nor does it claim that defendants have the requisite minimum contacts sufficient to
support the exercise of specific personal jurisdiction. 3 Rather, it contends that under the Calder
“effects test,” personal jurisdiction over defendants exists as a result of their intentionally
tortious actions. Defendants, in turn, respond that plaintiff’s complaint and opposition papers
provide no allegations of any transactions directed at Pennsylvania that would provide
The Calder test need only be invoked when a district court finds that a defendant lacks
sufficient minimum contacts under the traditional test. IMO Indus., Inc. , 155 F.3d at 259–60.
For “minimum contacts” to be present the defendant must have purposely availed itself of the
privilege of acting within the forum state, thus invoking the benefits and protections of forum
law, such that it could have reasonably anticipated being haled into court there. See Burger King
Corp., 471 U.S. at 475. Plaintiff does not allege, and I have not independently found, the
presence of any minimum contacts between defendants and Pennsylvania. There is no evidence
that defendants maintain any operations or do any business in Pennsylvania.
jurisdiction here. Faced with these conflicting arguments, I address each element of the Calder
effects test separately.
First, the parties do not dispute that the complaint contains numerous allegations of
intentional torts committed by defendants. Specifically, both defamation and tortious
interference are intentional torts under Pennsylvania law. Remick v. Manfredy, 238 F.3d 248,
260 (3d Cir. 2001). Moreover, the tort of civil conspiracy requires a showing that two or more
persons combined or agreed with intent to do either an unlawful act or a lawful act by unlawful
means. Walker v. N. Wales Borough, 395 F. Supp. 2d 219, 233 (E.D. Pa. 2005), citing Scully v.
U.S. WATS, Inc., 238 F.3d 497, 516 (3d Cir. 2001). Therefore, plaintiff has satisfied the first
prong of the Calder test for all three of his claims. 4
Harm Felt in the Forum
Plaintiff has also satisfied the second prong of the Calder test for each of his claims. The
Court of Appeals has held that when a plaintiff is a resident of the forum state and the victim of
an alleged tortious interference of contract, “the brunt of the harm caused by the alleged
intentional tort must necessarily have been felt by [plaintiff] in [the forum], as [plaintiff’s]
business practice is based in [the forum].” Remick v. Manfredy, 238 F.3d 248, 260 (3d Cir.
The complaint makes multiple allegations regarding the effects of defendants’ conduct on
plaintiff’s business, as follows:
By contacting and continuing to contact current prospective
Aardvark clients orally and in writing, and informing them of
Notably, personal jurisdiction must be analyzed separately for each claim. Vizant Techs., LLC
v. Whitchurch, 97 F. Supp. 3d 618, 629 (E.D. Pa. 2015).
Bobcar’s lawsuit against Aardvark and its allegations of patent
infringement, business misconduct and unfair business practices,
Defendants have and continue to tortiously interfere with
Aardvark’s contractual relationships. Compl. ¶ 51.
Aardvark has suffered and continues to suffer immediate,
continuing and irreparable harm as a direct and proximate result of
Defendants’ willful, malicious, and tortious acts, including but not
limited to, lost business opportunities. Id. ¶ 54.
Defendants[’] making, adoption, publication, dissemination,
distribution, and repetition of the defamatory statements have
caused, and continue to cause, Aardvark to suffer harm because
Aardvark’s reputation actually has been adversely affected by the
defamatory statements and their distribution. Accordingly,
Aardvark suffered, and continues to suffer, harm to its reputation,
loss of good will, and reduced demand for its goods and services.
Id. ¶ 71.
Defendants’ making, adoption, publication, dissemination,
distribution, and repetition of the defamatory statements have
caused, and continue to cause, Aardvark to suffer special harm—
including, but not limited to pecuniary losses, loss of potential
revenue, good will, and business opportunities with current and
prospective clients. Id. ¶ 72.
Defendants’ making, adoption, publication, distribution, and
repetition of the defamatory statements about Aardvark have
further injured the reputation of Aardvark in the marketplace and
have harmed Aardvark’s business, resulting in further pecuniary
losses, loss of good will, and loss of potential business
opportunities with current and prospective clients. Id. ¶ 73.
GC and Cohen intentionally joined and participated in . . . [a]
conspiracy to: tarnish Aardvark’s commercial reputation,
misappropriate Aardvark’s clients disrupt Aardvark’s potential
business relationships and otherwise cause financial and
reputational harm to Aardvark. Id. ¶ 87.
Aardvark has and continues to suffer damages as a direct and
proximate result of the aforementioned conspiracy. Id. ¶ 88.
The complaint further alleges that Aardvark is a corporation organized and existing under the
laws of the Commonwealth of Pennsylvania, and with its principal place of business in
Huntingdon Valley, PA. Id. ¶ 7. It necessarily follows that plaintiff felt the brunt of the alleged
harm in Pennsylvania such that Pennsylvania can be said to be the focal point of the harm. See
Vizant Techs., 97 F. Supp. 3d at 632 (finding that an allegation that the defendants’ conduct
caused economic, reputational and other harm to the plaintiff, a company headquartered in
Pennsylvania, is enough to establish that the plaintiff felt the brunt of the harm in Pennsylvania).
Conduct Aimed at Pennsylvania
The third element of the Calder test, however, bars plaintiff’s efforts to establish personal
jurisdiction over defendants. This element requires that “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.” IMO Indus., Inc., 155 F.3d at 266. To satisfy this factor, a plaintiff must: (1) “show
that the defendant knew that the plaintiff would suffer the brunt of the harm caused by the
tortious conduct in the forum,” and (2) “point to specific activity indicating that the defendant
expressly aimed its tortious conduct at the forum.” Id.; see also Vizant Techs., 97 F. Supp. 3d at
632 (finding the third prong met when “defendants not only knew that their conduct would cause
harm to an entity located in [the forum], but also engaged in that conduct intentionally, with the
goal of causing said harm”).
In this case, defendants did not expressly aim any of their allegedly tortious conduct into
Pennsylvania. The complaint sets forth three instances of defamation and intentional
interference with contracts. First, defendants sent a letter to Samsung Electronics in California
bringing to Samsung’s attention the lawsuit pending in New York. Compl. ¶ 24 & Ex. A.
Second, defendants sent a similar letter to Wireless Vision in Minnesota. Id. ¶ 35 & Ex. B.
Finally, defendants allegedly made disparaging oral statements to an unidentified client at an
Event Marketer Summit in Denver, Colorado. Id. ¶¶ 45–46. Plaintiff does not allege that
defendants had any direct contact in any way with Pennsylvania. Although defendants were
presumably aware that plaintiff was a Pennsylvania corporation, Pennsylvania was not the focal
point of the tortious activity as required by the third prong of the Calder test.
In an effort to skirt the absence of any activity directed at Pennsylvania, plaintiff offers
several alternative arguments. First, plaintiff contends that at the time defendants sent their
disparaging letter to Samsung, Aardvark was in the middle of conducting a mobile marketing
tour for Samsung throughout Philadelphia, Pennsylvania. Pl.’s Resp. Opp’n, ECF No. 10, Ex. B.
Plaintiff reasons that similar conduct was found to be sufficient in Remick v. Manfredy, where
the claimed tortious conduct was intended to disrupt a contractual relationship being
substantially performed in Pennsylvania. Specifically, in Remick, the defendant allegedly “set
[plaintiff] up to fail” in the plaintiff’s contract negotiations on behalf of defendant and published
defamatory information about plaintiff’s skill and ability as a negotiator. Remick, 238 F.3d at
260. The court found that because the plaintiff had submitted an affidavit that he conducted the
majority of his negotiation, consultation and advice services for the defendant out of his
Philadelphia office, it followed that any intentional conduct by the defendants designed to
interfere with plaintiff’s contractual relations would have been directed to and felt in
Pennsylvania. Id. Analogizing Remick to the present case, plaintiff argues that defendants
likewise sent their May 2, 2016 letter to Samsung with the express intent of disrupting the
relationship between plaintiff and Samsung, part of which was being carried out via the ongoing
This argument is meritless. The effects test prevents a defendant who didn’t expressly
aim its conduct at the forum state from being haled into a jurisdiction solely because it
intentionally caused harm that was felt in the forum state. Marten v. Godwen, 499 F.3d 290, 297
(3d Cir. 2007). “Even if a defendant’s conduct could cause foreseeable harm in a given state,
such conduct does not necessarily give rise to personal jurisdiction in that state.” Id. Rather,
jurisdiction is proper when the state of a plaintiff’s residence is the focus of the defendant’s
activities out of which the suit arises. Id. at 297–99. Consistent with these principles, the
Remick court found direct contacts between the defendant and Pennsylvania since the majority
of the plaintiff’s negotiation, consulting and advising services for the defendant took place in
Pennsylvania and the conduct was expressly aimed at those activities. Remick, 238 F.3d at 260.
By contrast in this case, there is no evidence that defendants had any contact with or aimed any
of their tortious activity at Pennsylvania. Moreover, plaintiff has not shown that it conducted
any negotiations or business dealings with Samsung in Pennsylvania such that the allegedly
disparaging letter would have impacted those negotiations. Finally, the mere fact that plaintiff
was performing a mobile marketing tour on behalf of Samsung in Pennsylvania at the relevant
time does not establish that defendants intended that the letter disrupt the work in Pennsylvania.
Alternatively, plaintiff argues, by way of a footnote, that its allegations of a conspiracy to
perpetrate a nationwide smear campaign may subject the defendants to jurisdiction in
Pennsylvania. In support it cites CDI International, Inc. v. Marck, No. 04-4837, 2005 WL
146890 (E.D. Pa. Jan. 21, 2005), to contend that to the extent any one of defendants’ actions
were conducted in or directed at Pennsylvania, such actions are sufficient for Pennsylvania
courts to exercise jurisdiction over the conspiring defendants.
I find no merit to this argument. CDI International clarified that “[m]erely belonging to a
civil conspiracy does not subject every member to the jurisdiction of every other member’s
forum.” Id. Rather, “personal jurisdiction over a non-Pennsylvania defendant may be asserted if
‘substantial acts in furtherance of the conspiracy occurred in Pennsylvania and [ ] the non-forum
co-conspirator was aware of or should have been aware of those acts.” Id. (quotations omitted).
In this case, plaintiff has not identified a single act, let alone substantial acts, that took place in
Pennsylvania in furtherance of the alleged conspiracy. Plaintiff’s reliance on its bald allegation
that defendants’ “smear campaign” was directed at both clients and potential clients of Aardvark
located throughout the United States requires speculation that some of the acts that were part of
this purported nationwide campaign occurred in Pennsylvania. Such speculation is insufficient
to allow the court to exercise personal jurisdiction over defendants.
Finally, plaintiff argues “[i]n the event this Court determines that Aardvark must
demonstrate additional facts sufficient to establish personal jurisdiction over the Defendants,
Aardvark should be permitted to take limited discovery concerning the jurisdictional issues.
Pl.’s Resp. Opp’n, ECF No. 10, at p. 13. I decline to allow such discovery. As a general rule,
jurisdictional discovery is permitted unless the claim of jurisdiction is “clearly frivolous.”
LaSala v. Marfin Popular Bank Pub. Co., Ltd., 410 F. App’x 474 (3d Cir. 2011), quoting Toys
“R” Us v. Step Two, S.A., 318 F.3d 446, 456 (3d Cir. 2003). In order to demonstrate that the
claim is not clearly frivolous, “the plaintiff must ‘present[ ] factual allegations that suggest with
reasonable particularity the possible existence of the requisite contacts between [the party] and
the forum state.’” Id., quoting Toys “R” Us, 318 F.3d at 456 (internal quotations omitted). The
Court of Appeals has cautioned against allowing jurisdictional discovery to serve as “a fishing
expedition based only upon bare allegations, under the guise of jurisdictional discovery.”
Eurofins Pharma U.S. Holdings v. BioAlliance Pharma SA, 623 F.3d 147, 157 (3d Cir. 2010).
Plaintiff’s request for jurisdictional discovery is nothing more than such a fishing
expedition. Its broad allegation of a nationwide scheme, accompanied by a claim that only
defendants have information regarding the extent to which they carried out this scheme, does not
suggest with “reasonable particularity” the existence of requisite contacts between the party and
the forum state. Indeed, plaintiff is well aware of the identities of its own clientele and whether
it has any Pennsylvania business relations that could have potentially received defamatory
communications from defendants. I decline to now allow discovery simply on the optimistic
hope that plaintiff will uncover some conduct directed to Pennsylvania. 5
For all of the foregoing reasons, I cannot find that plaintiff has alleged sufficient
intentional conduct by defendants directed towards Pennsylvania to allow the court to exercise
personal jurisdiction over defendants. Therefore, I will grant defendants’ motion and dismiss
An appropriate Order follows.
Having determined that plaintiff did not satisfy the third prong of the Calder effects test, I need
not consider the final requirement of specific jurisdiction, which requires a court to ensure that
the exercise of jurisdiction otherwise “comport[s] with ‘fair play and substantial justice.’” Burger
King, 471 U.S. at 476, quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 320 (1945).
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