Curran v. Mark Zinnamosca & Associates et al

Filing 37

REPORT AND RECOMMENDATIONS re 9 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM, 15 MOTION for Default Judgment, 19 MOTION to Dismiss Amended Complaint, 26 MOTION to Dismiss for Lack of Jurisdiction, 17 MOTION for Default Judgme nt. It is recommended that Curran's motions (docs. 15 & 17) for default judgment be denied, that the defendants' motions (docs. 9, 19, & 26) to dimiss be granted, and that Curran be granted leave to amend only as to the Zinnamosca defendants. Objections to R&R due by 1/21/2014. See order for further details.Signed by Magistrate Judge Susan E. Schwab on 1/2/14. (aaa)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOHN F. CURRAN,III,
Plaintiff
v.
MARK ZINNAMOSCA &
ASSOCIATES, et al.,
Defendants

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CIVIL NO: 1:12-CV-00750

(Judge Kane)
(Magistrate Judge Schwab)

REPORT AND RECOMMENDATION
I. Introduction.
The plaintiff, John F. Curran, III, brought this action against four defendants
raising an array of state law and federal claims. We conclude that Curran has
failed to establish personal jurisdiction over one of the defendants and that he has
failed to state a federal claim upon which relief can be granted against any of the
other defendants. Accordingly, we recommend that the defendants’ motions to
dismiss be granted and that the complaint be dismissed. We also recommend,
however, that Curran be given leave to file an amended complaint as to two of the
defendants. Further, we recommend that Curran’s motions for default judgment be
denied.

II. Background and Procedural History.
Curran filed a complaint naming the following as defendants: (1) Mark
Zinnamosca & Associates; (2) Mark Zinnamosca, CPA; (3) Kelly Utz; and (4) the
University of Maryland-University College.1 Curran alleges that both he and
Zinnamosca are citizens and residents of the state of Maryland, that Zinnamosca &
Associates is a corporation with a principal place of business in Maryland, that Utz
is a citizen and resident of Florida, and that the University of Maryland-University
College is an educational institution with its principal location in Maryland.
Curran contends that the Court has subject-matter jurisdiction under 28 U.S.C.
§1331 as he seeks to present federal statutory claims against the defendants.

1

By way of additional background, in November of 2011, Curran filed a complaint
in Curran v. Carbon Spyder, 1:11-CV-02127 (M.D. Pa.), naming twelve
defendants including Mark Zinnamosca & Associates, Mark Zinnamosca, CPA,
and the University of Maryland-University College. In March of 2012, Judge
Kane dismissed that complaint for lack of subject-matter jurisdiction, but she gave
Curran leave to amend. 1:11-CV-02127, Doc. 46. Curran then filed three separate
documents entitled “amended complaints.” See id. at Doc. 48. Only one of those
documents had the case number from Curran v. Carbon Spyder. Id. Curran also
included a letter along with his “amended complaints” stating that he broke the
case down into separate matters. Id. Magistrate Judge Smyser and the Clerk of
Court discussed how to proceed, and it was agreed that the documents would be
filed in separate cases. Id. One of the amended complaints was filed in Curran v.
Carbon Spyder, 1:11-CV-02127 (M.D. Pa.). The other two amended complaints
were filed as new cases: Curran v. M&T Bank Corp., 1:12-CV-00749
(M.D.Pa.); and this case, Curran v. Mark Zinnamosca & Assoc., 1:12-CV-00750
(M.D.Pa.). Thus, although the complaint in this case is titled “amended
complaints,” it is the original complaint in this case, and so despite its title, we
refer to it as the complaint.
2

A. Allegations Regarding Mark Zinnamosca & Associates and Mark
Zinnamosca, CPA.
Although Curran does not clearly plead his claims, he asserts that he is
proceeding against Mark Zinnamosca & Associates and Mark Zinnamosca, CPA
“for fraud, malpractice, breach of fiduciary responsibility, slander and libel.” Doc.
1 at 2. Curran also claims that Zinnamosca2 violated the Computer Fraud and
Abuse Act, 18 U.S.C. § 1030.
Curran alleges that he is the founder and 67.3% owner of Gargoyles, Inc., a
Delaware corporation. He alleges that Zinnamosca was the chief financial officer
of Gargoyles, Inc., until his services were terminated. Tracking the language of 18
U.S.C. § 1030(a)(4), Curran alleges in conclusory language that Zinnamosca
“knowingly and with intent to defraud, accessed a protected computer without
authorization, or exceeded authorized access, and by means of such conduct
furthered the intended fraud.” Doc. 1 at 2, ¶4. Curran alleges that Zinnamosca
performed work on a computer network and emailed that work to him. Curran also
alleges that Zinnamosca fraudulently completed and submitted “via an electronic
and computer based methodology” tax filings on behalf of Curran and Gargoyles,
Inc. Id. According to Curran, the “value of such use in perpetrating fraud far
exceeds $5,000.” Id.
Although Curran names both Mark Zinnamosca & Associates and Mark
Zinnamosca, CPA as defendants, he does not clearly differentiate between the two
defendants.
3
2

Curran also alleges that Zinnamosca provided testimony to the Maryland
Attorney General, and he alleges that the attorney for the plaintiff in the case of
Shafik v. Curran, 1:09-CV-2469 (M.D. Pa.), used that testimony. According to
Curran, Zinnamosca’s testimony was untrue, but Curran does not clearly allege the
substance of Zinnamosca’s testimony. Rather, he cryptically alleges that “no such
cautions were ever made either to the Plaintiff or the Board of Directors for
Gargoyles, Inc., the company that the Plaintiff found and is the majority
shareholder.” Doc. 1 at 3, ¶5. According to Curran, Zinnamosca’s purportedly
fraudulent statements negatively impacted the value of Curran’s ownership in
Gargoyles, Inc.
Curran further alleges that Zinnamosca committed malpractice. According
to Curran, he sold some of his shares in Gargolyes, Inc. to private buyers, but
Zinnamosca incorrectly recorded those sales in the financial records of Gargoyles,
Inc. as separate issuances of shares of stock by Gargoyles, Inc. Curran alleges that
that resulted in the loss of value of his ownership position in Gargoyles, Inc. and a
subsequent investigation by authorities. He alleges that Zinnamosca made false
statements in an effort to hide his alleged malpractice, and Zinnamosca made those
false statements in an effort to undermine his character. According to Curran, this
caused him irreparable harm and significantly diminished the value of his
investment.
4

Curran is seeking compensatory and punitive damages from Mark
Zinnamosca & Associates and Mark Zinnamosca, CPA.

B. Allegations Regarding Kelly Utz.
Curran asserts that he is proceeding against Utz for fraud, and he presents a
claim against Utz under the Computer Fraud and Abuse Act, 18 U.S.C. § 1030.
Again, tracking the language 18 U.S.C. § 1030(a)4), Curran alleges in conclusory
language that Utz “knowingly and with intent to defraud, accessed a protected
computer without authorization, or exceeded authorized access, and by means of
such conduct furthered the intended fraud.” Doc. 1 at 4, ¶3. According to Curran,
the “value of such use in perpetrating fraud far exceeds $5,000.” Id.
Curran alleges that, according to a digital assessment of Gargoyles, Inc.’s
“information system and server,” Utz , without authorization, removed numerous
documents from Gargoyles, Inc., created other documents, and fraudulently
represented that Curran had created those documents. Curran identifies dates when
Utz allegedly scanned documents and emailed them to her home computer and
deleted documents on Gargoyle’s “system.” According to Curran, on May 19,
2010, he told his attorney that he had discovered the theft of various items from his
office but that he was unable to determine when the items had been taken. Curran
alleges that the theft was reported and investigated, and his office was dusted for
5

fingerprints. According to Curran, on May 20, 2010, during a Board meeting,
Zinnamosca, who at the time was Gargoyles, Inc.’s accountant and who was Utz’s
former boss, gave the CEO of Gargoyles a thumb drive containing an image of the
company’s system and files along with the CEO’s personal tax records. Curran
alleges that a forensic analysis of the thumb drive determined that Utz had
downloaded the information contained on the thumb drive during the period from
2/18/10 through 3/1/10.
Curran is seeking compensatory and punitive damages from Utz.

C. Allegations Regarding the University of Maryland-University
College.
Curran asserts that he is proceeding against the University of MarylandUniversity College (“University of Maryland” or “University”) “for fraud, breach
of contract, slander and liable [sic].” Curran alleges that he completed the degree
requirements for a Bachelor of Science degree from the University of Maryland,
that he applied for graduation, and that he received his diploma. Nevertheless,
according to Curran, an employee of the University, orally and in writing, stated
that he did not receive his diploma from the University and that he must have
fabricated or forged his diploma. Curran alleges that those statements were
baseless, inflammatory, and damaging.

6

Curran is seeking compensatory and punitive damages against the University
as well as injunctive relief requiring the University to correct its records to reflect
that he completed the degree requirements and received his diploma.

III. The Motion to Dismiss Filed by Mark Zinnamosca & Associates and
Mark Zinnamosca, CPA.
Mark Zinnamosca & Associates and Mark Zinnamosca, CPA filed a motion
to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) or for a more definite
statement pursuant to Fed.R.Civ.P. 12(e). After the Zinnamosca defendants filed a
brief in support of that motion, we ordered Curran to file, on or before March 29,
2013, a brief in opposition to the motion in accordance with Local Rule 7.6.
Rather than filing a brief in opposition as ordered by the Court, on April 2, 2013,
Curran filed a response to the motion asserting that because the Zinnamosca
defendants did not attach a certificate stating whether he concurred in the motion in
accordance with Local Rule 7.1, the motion is incomplete and, thus, should be
denied. We reject Curran’s argument that the motion should be denied because the
Zinnamosca defendants failed to attach a certificate of concurrence or
nonconcurrence with the motion. While the Zinnamosca defendants failed to
comply with Local Rule 7.1, Curran was not prejudiced by that failure. We
assumed that the Curran did not concur in the motion, and we specifically ordered
Curran to file a brief in opposition to the motion. Curran thus had an opportunity
7

to oppose the motion on the merits, but he failed to take advantage of that
opportunity. And he failed to comply with a court order specifically ordering him
to file a brief in opposition. There is no basis to deny the motion to dismiss merely
because the motion was not accompanied by a certificate of concurrence or
nonconcurrence. Thus, we proceed to address the merits of the motion.

A. Motion to Dismiss and Pleading Standards.
In accordance with Fed.R.Civ.P. 12(b)(6), the court may dismiss a complaint
for “failure to state a claim upon which relief can be granted.” When reviewing a
motion to dismiss, “[w]e must accept all factual allegations in the complaint as
true, construe the complaint in the light favorable to the plaintiff, and ultimately
determine whether plaintiff may be entitled to relief under any reasonable reading
of the complaint.” Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010). In
making that determination, we “consider only the complaint, exhibits attached to
the complaint, matters of public record, as well as undisputedly authentic
documents if the [plaintiff’s] claims are based upon these documents.” Id. at 230.
“A Rule 12(b)(6) motion tests the sufficiency of the complaint against the
pleading requirements of Rule 8(a).” I.H. ex rel. D.S. v. Cumberland Valley Sch.
Dist., 842 F. Supp. 2d 762, 769-70 (M.D. Pa. 2012). With respect to the
benchmark standard for legal sufficiency of a complaint, the United States Court of
8

Appeals for the Third Circuit has aptly noted the evolving standards governing
pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of jurisprudence in
recent years. Beginning with the Supreme Court’s opinion in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007), continuing with our opinion in Phillips [v.
County of Allegheny, 515 F.3d 224, 230 (3d Cir.2008)], and
culminating recently with the Supreme Court’s decision in Ashcroft v.
Iqbal 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), pleading
standards have seemingly shifted from simple notice pleading to a
more heightened form of pleading, requiring a plaintiff to plead more
than the possibility of relief to survive a motion to dismiss.
Fowler v. UPMC Shadyside, 578 F.3d 203, 209–10 (3d Cir. 2009).
“Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a
‘short and plain statement of the claim showing that the pleader is entitled to
relief.’” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). The statement required by
Rule 8(a)(2) must give the defendant fair notice of what the plaintiff’s claim is and
of the grounds upon which it rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007).
Detailed factual allegations are not required, but more is required than labels,
conclusions, and a formulaic recitation of the elements of a cause of action. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “In other words, a
complaint must do more than allege the plaintiff’s entitlement to relief.” Fowler,
578 F.3d at 211. “A complaint has to “show” such an entitlement with its facts.”
Id.

9

In considering whether a complaint fails to state a claim upon which relief
can be granted, the court must accept as true all well-pleaded factual allegations in
the complaint, and all reasonable inferences that can be drawn from the complaint
are to be construed in the light most favorable to the plaintiff. Jordan v. Fox
Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). A court,
however, “need not credit a complaint’s bald assertions or legal conclusions when
deciding a motion to dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902,
906 (3d Cir. 1997). Additionally, a court need not “assume that a . . . plaintiff can
prove facts that the . . . plaintiff has not alleged.” Associated Gen. Contractors of
Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
In conducting a review of the adequacy of a complaint, the Supreme Court
has advised trial courts that they must:
[B]egin by identifying pleadings that because they are no more than
conclusions are not entitled to the assumption of truth. While legal
conclusions can provide the framework of a complaint, they must be
supported by factual allegations. When there are well-pleaded factual
allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.
Iqbal, 556 U.S. at 679.
Thus, following Twombly and Iqbal, a well-pleaded complaint must contain
more than mere legal labels and conclusions. Rather, it must recite factual
allegations sufficient to raise the plaintiff's claimed right to relief beyond the level

10

of mere speculation. In practice, consideration of the legal sufficiency of a
complaint entails a three-step analysis:
First, the court must ‘tak[e] note of the elements a plaintiff must plead
to state a claim.’ Second, the court should identify allegations that,
‘because they are no more than conclusions, are not entitled to the
assumption of truth.’ Finally, ‘where there are well-pleaded factual
allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement for relief.’
Santiago v. Warminster Tp., 629 F.3d 121, 130 (3d Cir. 2010)(quoting Iqbal, 556
U.S. at 675 & 679).
A complaint filed by a pro se litigant is to be liberally construed and
“‘however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.’” Erickson, 551 U.S. at 94 (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, “pro se litigants still must allege
sufficient facts in their complaints to support a claim.” Mala v. Crown Bay Marina,
Inc., 704 F.3d 239, 245 (3d Cir. 2013). Thus, a well-pleaded complaint must
contain more than mere legal labels and conclusions. Rather, a pro se complaint
must recite factual allegations that are sufficient to raise the plaintiff’s claimed
right to relief beyond the level of mere speculation, set forth in a “short and plain”
statement of a cause of action.

11

B. The Complaint Fails to State a Claim Under the Computer Fraud
and Abuse Act Upon Which Relief Can Be Granted Against the
Zinnamosca Defendants.
Curran seeks to bring a claim against the Zinnamosca defendants under 18
U.S.C. § 1030(a)(4), a provision of the Computer Fraud and Abuse Act. As
relevant here, the Computer Fraud and Abuse Act provides:
Whoever. . . knowingly and with intent to defraud,
accesses a protected computer without authorization, or exceeds
authorized access, and by means of such conduct furthers the
intended fraud and obtains anything of value, unless the object
of the fraud and the thing obtained consists only of the use of
the computer and the value of such use is not more than $5,000
in any 1-year period . . . shall be punished as provided in
subsection (c) of this section.
18 U.S.C.A. § 1030(a)(4). Although the Act is primarily a criminal statute, it also
contains a provision providing for a civil action in certain limited situations where
a person “suffers damage or loss by reason of a violation of” the Act. 18 U.S.C.A.
§ 1030(g).3
3

Section 1030(g) provides in full:
Any person who suffers damage or loss by reason of a violation
of this section may maintain a civil action against the violator to
obtain compensatory damages and injunctive relief or other
equitable relief. A civil action for a violation of this section
may be brought only if the conduct involves 1 of the factors set
forth in subclauses (I), (II), (III), (IV), or (V) of subsection
(c)(4)(A)(i). Damages for a violation involving only conduct
described in subsection (c)(4)(A)(i)(I) are limited to economic
damages. No action may be brought under this subsection
unless such action is begun within 2 years of the date of the act
complained of or the date of the discovery of the damage. No
action may be brought under this subsection for the negligent
12

A claim under 18 U.S.C. § 1030(a)(4) “has four elements: (1) defendant has
accessed a ‘protected computer;’ (2) has done so without authorization or by
exceeding such authorization as was granted; (3) has done so ‘knowingly’ and with
‘intent to defraud’; and (4) as a result has ‘further[ed] the intended fraud and
obtain[ed] anything of value.’” P.C. Yonkers, Inc. v. Celebrations the Party &
Seasonal Superstore, LLC., 428 F.3d 504, 508 (3d Cir. 2005)(quoting 18 U.S.C.A.
§ 1030(a)(4)).
Tracking the language of 18 U.S.C. § 1030(a)(4), Curran alleges in
conclusory language that Zinnamosca “knowingly and with intent to defraud,
accessed a protected computer without authorization, or exceeded authorized
access, and by means of such conduct furthered the intended fraud.” Doc. 1 at 2,
¶4. This allegation, however, is nothing more than the type of “formulaic
recitation of the elements of a cause of action” that fails to meet the pleadings
starndards. Twombly, 550 U.S. at 555.

design or manufacture of computer hardware, computer
software, or firmware.
Of the subclauses of §1030(c)(4)(A)(i) mentioned, the only one that it appears
could have any possible application in this case is subclause (I), which involves
conduct involving “loss to 1 or more persons during any 1-year period . . .
aggregating at least $5,000 in value.” 18 U.S.C. § 1030(c)(4)(A)(i)(I).

13

Curran also alleges that Zinnamosca performed work on a computer network
and emailed that work to him and that Zinnamosca fraudulently completed and
submitted “via an electronic and computer based methodology” tax filings on
behalf of Curran and Gargoyles, Inc. Doc. 1 at 2, ¶4. According to Curran, the
“value of such use in perpetrating fraud far exceeds $5,000.” Id. These allegations
fail to allege facts from which it can reasonably be inferred that the Zinnamosca
defendants violated the 18 U.S.C. § 1030(a)(4). First and foremost, there are no
factual allegations that the Zinnamosca defendants accessed a “protected
computer”4 without authorization or in excess of their authorization. The
allegation that the Zinnamosca defendants created work on a computer and emailed
that work to Curran is not sufficient to raise an inference that they accessed a
4

The Computer Fraud and Abuse Act defines a “protected computer” as a

computer—
(A) exclusively for the use of a financial institution or the
United States Government, or, in the case of a computer not
exclusively for such use, used by or for a financial institution or
the United States Government and the conduct constituting the
offense affects that use by or for the financial institution or the
Government; or
(B) which is used in or affecting interstate or foreign
commerce or communication, including a computer located
outside the United States that is used in a manner that affects
interstate or foreign commerce or communication of the United
States;
18 U.S.C.A. § 1030(e)(2).

14

protected computer without authorization or in excess of authorization. Nor is the
allegation that the Zinnamosca defendants fraudulently completed and submitted
tax filings on behalf of Curran and Gargoyles, Inc. sufficient to raise an inference
that they accessed a protected computer without authorization or in excess of
authorization. Moreover, there are no factual allegations regarding the nature of
any purported fraud. Similarly, there are no allegations that the defendants
received anything of value. Given the lack of factual allegations, the complaint
fails to state a claim under the Computer Fraud and Abuse Act upon which relief
can be granted against the Zinnamosca defendants. Accordingly, we will
recommend that that claim be dismissed.

C. Since the Federal Claim Should Be Dismissed, the Court Should
Decline to Exercise Supplemental Jurisdiction over the State Law
Claims Against the Zinnamosca Defendants.
The remaining claims against the Zinnamosca defendants are Curran’s state
law claims over which this court has supplemental jurisdiction.
Whether to exercise supplemental jurisdiction is within the discretion of the
court. 28 U.S.C. § 1367(c)(3) provides that district courts may decline to exercise
supplemental jurisdiction over a state law claim if the district court has dismissed
all claims over which it has original jurisdiction. When deciding whether to
exercise supplemental jurisdiction, “a federal court should consider and weigh in
each case, and at every stage of the litigation, the values of judicial economy,
15

convenience, fairness, and comity.” City of Chicago v. Int’l Coll. of Surgeons, 522
U.S. 156, 173 (1997)(quoting Carnegie-Mellon Univ. v. Cahill, 484 U.S. 343, 350
(1988)). The Third Circuit has held that “where the claim over which the district
court has original jurisdiction is dismissed before trial, the district court must
decline to decide the pendent state claims unless considerations of judicial
economy, convenience, and fairness to the parties provide an affirmative
justification for doing so.” Hedges v. Musco, 204 F.3d 109, 123 (3d Cir.
2000)(quoting Borough of West Miflin v. Lancaster, 45 F.3d 780, 788 (3d Cir.
1995)).
There is nothing unique about this case such that considerations of judicial
economy, convenience, and fairness provide an affirmative justification for
exercising supplemental jurisdiction after the court disposes of the federal claims.
Accordingly, we recommend that, in the absence of a viable federal claim, the
court decline to exercise supplemental jurisdiction over the state law claims against
the Zinnamosca defendants.

D. Curran Should Be Granted Leave to Amend as to the Zinnamosca
Defendants.
“[I]f a complaint is subject to a Rule 12(b)(6) dismissal, a district court must
permit a curative amendment unless such an amendment would be inequitable or
futile.” Phillips v. County of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008). The
16

court “must provide the plaintiff with this opportunity even if the plaintiff does not
seek leave to amend.” Id.
We cannot say that amendment of the Computer Fraud and Abuse Act claim
against the Zinnamosca defendants would be inequitable or futile in this case.
Thus, we will recommend that Curran be granted leave to file an amended
complaint. Any amended complaint shall be complete in all respects. It shall be
a new pleading that stands by itself as an adequate complaint without reference to
the complaint already filed. It shall not incorporate by reference any of the
previous complaint. Any amended complaint shall be titled as an amended
complaint and shall contain the docket number of this case.

IV. The Motion to Dismiss Filed by Kelly Utz.
Defendant Utz filed a motion to dismiss the complaint for lack of subjectmatter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) and for lack of personal
jurisdiction pursuant to Fed.R.Civ.P. 12(2) and a brief in support of that motion.
We then ordered Curran to file, on or before May 9, 2013, a brief in opposition to
the motion in accordance with Local Rule 7.6. Rather than filing a brief in
opposition as ordered by the Court, on May 15, 2013, Curran filed a response to
the motion asserting that because Utz did not attach a certificate stating whether
she concurred in the motion in accordance with Local Rule 7.1, the motion is
17

incomplete and, thus, should be denied. As before, we reject Curran’s argument
that the motion should be denied because the defendant failed to attach a certificate
of concurrence or nonconcurrence with the motion. While Utz failed to comply
with Local Rule 7.1, Curran was not prejudiced by that failure. We assumed that
the Curran did not concur in the motion, and we specifically ordered Curran to file
a brief in opposition to the motion. Curran thus had an opportunity to oppose the
motion on the merits, but he failed to take advantage of that opportunity. And he
failed to comply with a court order specifically ordering him to file a brief in
opposition. There is no basis to deny the motion to dismiss merely because the
motion was not accompanied by a certificate of concurrence or nonconcurrence.
Thus, we proceed to address the merits of the motion.
Although Utz rasied lack of subject-matter jurisdiction and lack of personal
jurisdiction in her motion, she only briefed the personal jurisdiction issue. We
note, however, that the Court has subject-matter jurisdiction given that Curran
raises a claim under Computer Fraud and Abuse Act against Utz. We turn now to
personal jurisdiction.
A defendant may raise the defense of lack of personal jurisdiction in a
motion to dismiss in accordance with Fed.R.Civ.P. 12(b)(2). “Once a defendant
challenges a court’s exercise of personal jurisdiction over it, the plaintiff bears the
burden of establishing personal jurisdiction.” D'Jamoos ex rel. Estate of
18

Weingeroff v. Pilatus Aircraft Ltd., 566 F.3d 94, 102 (3d Cir. 2009). Unless the
court holds an evidentiary hearing, at the motion-to-dismiss stage the plaintiff need
only establish a prima facie case of personal jurisdiction. Miller Yacht Sales, Inc. v.
Smith, 384 F.3d 93, 97 (3d Cir. 2004). Under a prima facie standard, “the
plaintiff’s allegations are presumed true and all factual disputes are resolved in the
plaintiff’s favor,” but “the ultimate burden remains on the plaintiff to demonstrate
the existence of jurisdiction by a preponderance of the evidence.” LaSala v. Marfin
Popular Bank Pub. Co., Ltd., 410 F. App’x 474, 476 (3d Cir. 2011). The plaintiff
establishes a prima facie case “by ‘establishing with reasonable particularity
sufficient contacts between the defendant and the forum state.’” Mellon Bank
(East) PSFS, Nat. Ass'n v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992)(quoting
Provident Nat. Bank v. California Fed. Sav. & Loan Assoc., 819 F.2d 434 (3d
Cir.1987)).
Federal Rule of Civil Procedure 4 authorizes a federal court to assert
personal jurisdiction over a nonresident defendant to the extent permissible under
the law of the state where the district court sits. Id. at 1221. The forum state in this
case is Pennsylvania, and Pennsylvania law permits courts within Pennsylvania to
exercise jurisdiction “to the fullest extent allowed under the Constitution of the
United States” and provides that jurisdiction “may be based on the most minimum
contact with this Commonwealth allowed under the Constitution of the United
19

States.” 42 Pa.C.S.A. § 5322(b). Thus, this court may properly exercise
jurisdiction over a defendant as long as the exercise of that jurisdiction does not
violate the due process rights of the defendant. Mellon, 960 F.2d at 1221.
Proceeding to the constitutional inquiry, the “Due Process Clause of the
Fourteenth Amendment requires that nonresident defendants have ‘certain
minimum contacts with [the forum state] such that the maintenance of the suit does
not offend traditional notions of fair play and substantial justice.’” Kehm Oil Co. v.
Texaco, Inc., 537 F.3d 290, 299-300 (3d Cir. 2008)(quoting Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945)). “Having minimum contacts with another
state provides ‘fair warning’ to a defendant that he or she may be subject to suit in
that state.” Id. at 300 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472
(1985)).
There are two types or personal jurisdiction—general jurisdiction and
specific jurisdiction. Marten v. Godwin, 499 F.3d 290, 296 (3d Cir. 2007).
“General jurisdiction exists when a defendant has maintained systematic and
continuous contacts with the forum state.” Id. On the other hand, even in the
absence of such systematic and continuous contacts with the forum state,
“[s]pecific jurisdiction exists when the claim arises from or relates to conduct
purposely directed at the forum state.” Id. “The central concern of [the]
jurisdictional inquiry is the relationship among the defendant, the forum, and the
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litigation.” Max Daetwyler Corp. v. R. Meyer, 762 F.2d 290, 293 (3d Cir. 1985).
The court conducts a three-part inquiry to determine whether it has specific
jurisdiction over the defendant. O'Connor v. Sandy Lane Hotel Co., Ltd., 496 F.3d
312, 317 (3d Cir. 2007). “First, the defendant must have ‘purposefully directed
[its] activities’ at the forum.” Id. (quoting Burger King, 471 U.S. at 472). “Second,
the litigation must ‘arise out of or relate to’ at least one of those activities.” Id.
(quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414
(1984)). Third, if the court finds that the prior requirements are met, it may
consider additional factors to ensure that exercising jurisdiction would be
consistent with ‘“fair play and substantial justice.”’ Id. (quoting Burger King,
supra, 471 U.S. at 476 (quoting Int'l Shoe, supra, 326 U.S. at 320)).
In this case, Curran alleges that Utz is a citizen and resident of Florida, and
there are no allegations in the complaint suggesting that the events underlying the
claim against Utz occurred in Pennsylvania or that the claim against Utz has any
connection whatsoever to Pennsylvania. Thus, Curran has not established a prima
facie case of specific jurisdiction over Utz. Further, Curran has not presented any
allegations, argument, or evidence that Utz had systematic and continuous contacts
with Pennsylvania. Thus, he has not established a prima facie case of general
jurisdiction over Utz. And so we will recommend that Utz’s motion to dismiss for
lack of personal jurisdiction be granted.
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V. The Motion to Dismiss Filed by the University of Maryland-University
College.
The Univeristy of Maryland-University College contends that the Court
lacks subject-matter jurisdiction because the complaint does not set forth any
cognizable federal claims against it.
“[T]he absence of a valid (as opposed to arguable) cause of action does not
implicate subject-matter jurisdiction, i.e., the court’s statutory or constitutional
power to adjudicate the case .” Steel Co. v. Citizens for a Better Environment, 523
U.S. 83, 89 (1998)(emphasis in original). Subject-matter jurisdiction is not
defeated by the possibility that the averments of the complaint might fail to state a
cause of action on which the plaintiff could actually recover. Id. “Dismissal for
lack of subject-matter jurisdiction because of the inadequacy of the federal claim is
proper only when the claim is ‘so insubstantial, implausible, foreclosed by prior
decisions of this Court, or otherwise completely devoid of merit as not to involve a
federal controversy.’ ” Id. (quoting Oneida Indian Nation of N.Y. v. County of
Oneida, 414 U.S. 661, 666 (1974)).
Althlough Curran attempts to assert a claim against the University under the
Family Educational Rights and Privacy Act of 1974 (FERPA), 20 U.S.C. § 1232g,
he cannot premise a federal claim on FERPA, which prohibits “the federal funding
of educational institutions that have a policy or practice of releasing education
records to unauthorized persons” because FERPA does not create any personal
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rights that can be enforced in a private right of action or through 42 U.S.C. § 1983.
Gonzaga Univ. v. Doe, 536 U.S. 273, 276, 287-290 (2002)(stating that “there is no
question that FERPA’s nondisclosure provisions fail to confer enforceable rights”).
Nor can Curran base a claim against the University of Maryland on the Privacy
Act, which limits the conditions under which an agency may disclose records of an
individual, which provides that an agency shall maintain its records with “such
accuracy” “as is reasonably necessary to assure fairness to the individual,” and
which provides that generally prior to disclosing such records an agency shall
“make reasonable efforts to assure that such records are accurate . . . for agency
purposes.” 5 U.S.C. §¶ 552a(b), 552a(e)(5) & 552a(e)(6). For purposes of the
relevant sections of the Privacy Act, an agency is defined as “each authority of the
Government of the United States” with certain exceptions. 5 U.S.C. §§ 552a(a),
552(f), § 551(1). The relevant sections of the Privacy Act, therefore, only apply to
federal government agencies. See N’Jai v. Pittsburgh Bd. of Pub. Educ., 487 F.
App’x 735, 737 (3d Cir. 2012). Accordingly, the complaint fails to state a Privacy
Act claim upon which relief can be granted against the University of Maryland,
which is not a federal agency.5

We note that Section 7 of the Privacy Act, which is not codified but is set forth as
a note following 5 U.S.C. § 552a, provides that “[i]t shall be unlawful for any
Federal, State or local government agency to deny to any individual any right,
benefit, or privilege provided by law because of such individual’s refusal to
disclose his social security account number.” “By its express terms, § 7 applies to
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5

In response to the University’s motion to dismiss, Curran argues that the
University entered into several contracts with various government entities to
provide education to members of the armed forces, and he contends that the
University’s failure to comply with those contracts provides for subject-matter
jurisdiction. Curran’s argument, however, provides no basis for a claim under
FERPA or the Privacy Act.
Given that Curran’s asserted claims under the Privacy Act and FERPA are
so clearly foreclosed by prior decisions of the Supreme Court or otherwise
completely devoid of merit, they do not involve a federal controversy.
Nevertheless, because Curran pleaded federal clams under the Computer Fraud and
Abuse Act against other defendants, we cannot say that the Court lacks subjectmatter jurisdiction in this case. Nevertheless, the complaint fails to state a federal
claim upon which relief can be granted against the University. And in the absence
of a federal claim, there is no reason for the court to exercise supplemental
jurisdiction over the state law claims against the University.

federal, state, and local agencies.” Gonzalez v. Vill. of W. Milwaukee, 671 F.3d
649, 662 (7th Cir. 2012). Because this case does not deal with a denial based on
Curran’s refusal to disclose his social security number, Section 7 does not apply.

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VI. Curran’s Motions for Default Judgment.
Curran filed a motion for a default judgment against Mark Zinnamosca &
Associates and Mark Zinnamosca, CPA contending that because they did not
attach to their motion to dismiss a certificate stating whether he concurred in the
motion in accordance with Local Rule 7.1, the motion was incomplete and thus a
default judgment should be entered against them. Curran also filed a motion for a
default judgment against the University of Maryland-University College on the
basis that the University filed its motion to dismiss late.
After a default is entered against a party, the court may, pursuant to
Fed.R.Civ.P. 55(b)(2), enter a default judgment against a party how has failed to
plead or otherwise defend. “When an application is made to the court under Rule
55(b)(2) for the entry of a judgment by default, the district judge is required to
exercise sound judicial discretion in determining whether the judgment should be
entered.” 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice and Procedure § 2685 (3d ed.). “Three factors control whether a default
judgment should be granted: (1) prejudice to the plaintiff if default is denied, (2)
whether the defendant appears to have a litigable defense, and (3) whether
defendant’s delay is due to culpable conduct.” Chamberlain v. Giampapa, 210
F.3d 154, 164 (3d Cir. 2000).

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In this case, Curran is not entitled to a default judgment. First, he failed to
obtain entry of a default. See Limehouse v. Delaware, 144 F. App’x 921, 923 (3d
Cir. 2005)(“[T]he District Court properly denied the motion because Limehouse
failed to obtain entry of default prior to seeking a default judgment.”). Even if a
default had been entered, however, a default judgment is not warranted. As set
forth above, although the Zinnamosca defendants failed to comply with Local Rule
7.1, Curran was not prejudiced by that failure. We assumed that the Curran did not
concur in the motion to dismiss, and we specifically ordered Curran to file a brief
in opposition to the motion. Curran thus had an opportunity to oppose the motion
to dismiss on the merits, but he failed to take advantage of that opportunity.
Similarly, Curran was not prejudice by the University’s late filing. Moreover, as
discussed above, the complaint should be dismissed. Accordingly, there is no basis
for a default judgment against either the Zinnamosca defendants or the University.

VII. Recommendations.
Accordingly, for the foregoing reasons, it is recommended that Curran’s
motions (docs. 15 & 17) for default judgment be denied, that the defendants’
motions (docs. 9, 19, & 26) to dismiss be granted, and that Curran be granted leave
to amend only as to the Zinnamosca defendants.

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The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge’s proposed findings,
recommendations or report addressing a motion or matter described in
28 U.S.C. ' 636 (b)(1)(B) or making a recommendation for the
disposition of a prisoner case or a habeas corpus petition within
fourteen (14) days after being served with a copy thereof. Such party
shall file with the clerk of court, and serve on the magistrate judge and
all parties, written objections which shall specifically identify the
portions of the proposed findings, recommendations or report to
which objection is made and the basis for such objections. The
briefing requirements set forth in Local Rule 72.2 shall apply. A
judge shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which
objection is made and may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge.
The judge, however, need conduct a new hearing only in his or her
discretion or where required by law, and may consider the record
developed before the magistrate judge, making his or her own
determination on the basis of that record. The judge may also receive
further evidence, recall witnesses or recommit the matter to the
magistrate judge with instructions.
Submitted this 2nd day of January, 2014.

S/Susan E. Schwab
Susan E. Schwab
United States Magistrate Judge

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