MASER v. DEEBLE et al
Filing
14
MEMORANDUM OPINION indicating that, for reasons stated within, Defendants' Motion to Dismiss 3 is granted without prejudice to Plaintiff refiling this action in the appropriate jurisdiction. An appropriate Order follows. Signed by Judge Nora Barry Fischer on 3/9/17. (jg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MICHAEL MASER,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
JEREMY DEEBLE and TRANONT, INC.,
Defendants.
Civil Action No. 17-99
Judge Nora Barry Fischer
MEMORANDUM OPINION
I.
INTRODUCTION
This diversity action arises out of an alleged illegal wiretap. (Docket No. 1-2). Plaintiff
asserts claims against Defendants for breach of contract, tortious interference with contract and
business relationships, defamation, unfair and deceptive trade practices, intrusion upon seclusion,
publicity to private life, and false light. (Id.). Presently before the Court is Defendants’ Motion
to Dismiss for Lack of Jurisdiction or to Transfer the Case, along with a supporting brief.
(Docket Nos. 3, 4).
Plaintiff filed a brief in opposition to Defendant’s motion, to which
Defendants replied. (Docket Nos. 7, 12, 13). Along with their briefing, Defendants have also
presented affidavits prepared by Defendant Jeremy Deeble and Scott Bland. (Docket Nos. 4-1,
4-2). Upon consideration of the parties’ arguments, and for the following reasons, Defendants’
Motion to Dismiss for Lack of Jurisdiction is granted, without prejudice to Plaintiff refiling this
action in the appropriate jurisdiction.
1
II.
FACTUAL BACKGROUND
a. Plaintiff’s Complaint
Plaintiff is a native of Allegheny County, Pennsylvania, and is an independent business
owner with the American Communications Network (“ACN”). (Docket No. 1-2 at ¶¶ 1, 4-5).
Defendant Deeble is a resident of Indiana,1 and Defendant Tranont, Inc.’s principal place of
business is in Utah. (Id. at ¶¶ 2-3). Defendant Deeble was formerly a representative in the
downline of ACN but became an agent of Defendant Tranont, Inc., a competitor of ACN. (Id. at
¶¶ 17, 22). Plaintiff alleges that Defendants conspired and designed a plan to bait him into
embarrassing himself, to publish the damaging results, and to recruit individuals from ACN to
join Defendant Tranont, Inc. (Id. at ¶¶ 24, 26). Specifically, Plaintiff avers that Defendants
“inspired” to illegally intercept and record an embarrassing telephone conversation, in which
Plaintiff appears angry, profane, and loud, and then distributed the conversation through text
messages, e-mails, and social media for the purpose of damaging Plaintiff’s business
relationships.
(Id. at ¶¶ 28, 30-34, 39-40). Plaintiff states that his counsel has requested
confirmation that the publication has ceased but has not received a response from Defendants.
(Id. at ¶¶ 37-38). Plaintiff alleges that his reputation among his downline representatives and
business associates has been damaged, and will continue to be damaged by Defendants’ further
publication of the recorded telephone call. (Id. at ¶¶ 41-43).
Plaintiff asserts claims against Defendants for breach of contract, tortious interference
with contract and business relationships, defamation, unfair and deceptive trade practices,
intrusion upon seclusion, publicity to private life, and false light. (Id. at ¶¶ 44-88). In support of
his breach of contract claim, Plaintiff contends that Defendant Deeble breached the parties’ ACN
1
As noted below, Defendant Deeble states that he is a resident of Idaho, not Indiana.
2
contract, which included a covenant not to compete. (Id. at ¶¶ 44-48). Regarding his claim for
tortious interference with contract and business relationships, Plaintiff alleges that Defendants
tortiously interfered with his business associates and customers by publishing the illegally
recorded telephone call and poaching his current and potential future independent business
owners in his ACN downline.
(Id. at ¶¶ 49-54). Plaintiff relies upon the same core facts to
support his claims for defamation, unfair and deceptive trade practices, intrusion upon seclusion,
publicity to private life, and false light. (Id. at ¶¶ 55-87). He seeks injunctive and compensatory
relief. (Id. at ¶¶ 88-99).
b. Plaintiff’s Emergency Petition for Injunctive Relief
Plaintiff filed an Emergency Petition for Injunctive Relief in the Court of Common Pleas
of Allegheny County. (Docket No. 1-3 at 2-16). In his petition, Plaintiff restated the facts in his
Complaint that detailed his relationship with Defendants and the telephone call. (Id. at ¶¶ 1-44).
In support of his request for immediate injunctive relief, Plaintiff alleged that Defendants had
been luring and poaching his independent business owners, his customers, and his business
associates. (Id. at ¶ 45). Plaintiff asserted that Defendants would not be prejudiced by ceasing
further publication of the call and that he would suffer permanent, substantial, and irreparable
harm without an injunction. (Id. at ¶¶ 47-48). Plaintiff requested a temporary restraining order
prohibiting any further publication of the call, a hearing for a permanent injunction, and
judgment for Plaintiff in excess of $200,000 in damages. (Id.).
On December 22, 2016, the Court of Common Pleas of Allegheny County issued a
special injunction order against Defendants and scheduled a hearing on the construction of the
special injunction. (Id. at 2, 43). After Defendants failed to appear at the hearing held on
3
December 28, 2016, the court made its December 22, 2016 order permanent. (Id. at 1-2, 45).
The court further ordered Defendants to: (1) provide to Plaintiff’s counsel any and all originals
and copies of the recording, along with reasonable confirmation of the destruction of all copies;
(2) cease publication and permanently terminate all publication of the recording; and (3) retract
any known recipients and provide a list of the places in which the recording had been published,
the persons to whom the recording had been published, and the manner of publication. (Id.).
c. Defendants’ Supporting Evidence
Attached to their briefing in support of their motion, Defendants have presented affidavits
prepared by Scott Bland and Defendant Deeble. In his affidavit, Bland states that he is the
President of iMoney Tools, LLC d/b/a Tranont, which is a limited liability company with a
primary address located in Utah. (Docket No. 4-1 at ¶ 1). Bland avers that the company’s
members are National Marketing & Learning, LLC, a Missouri limited liability company, and
H20 Mark Marketing, LLC, a Utah limited liability company. (Id. at ¶ 2). Bland states that
iMoney Tools, LLC’s business is in the western portion of the United States and has only limited
interactions with the Commonwealth of Pennsylvania.
(Id. at ¶ 4).
The company is not
incorporated in Pennsylvania; is not registered to do business in Pennsylvania; does not do
business under any other name in Pennsylvania; and does not have any property, employees,
representatives, or agents in Pennsylvania. (Id. at ¶¶ 5-6). Bland avers that neither he nor the
company’s principal members have ever spoken to Plaintiff and that the company has never
contracted with or transacted any business with Plaintiff. (Id. at ¶¶ 7-8).
Defendant Deeble states in his affidavit that he is a resident of Idaho who has never been
a citizen or resident of Pennsylvania; has not registered to contract or transact business with the
4
Pennsylvania Secretary of State; does not own any real property in Pennsylvania; and does not
have any representatives, employees, or agents in Pennsylvania. (Docket No. 4-2 at ¶¶ 1-4).
Defendant Deeble avers that although he and Plaintiff were formerly associated with ACN, he
has never contracted to do business with Plaintiff, either individually or through any business
entity. (Id. at ¶¶ 5-6, 8). With respect to the recorded telephone call, Defendant Deeble states
that he received a threatening voicemail from Plaintiff on December 8, 2016, while he was
located in New Jersey. (Id. at ¶¶ 9-10). Defendant Deeble states that he returned Plaintiff’s call
but recorded the conversation because he was concerned by the tone of Plaintiff’s voicemail.
(Id. at ¶ 11). Defendant Deeble avers that he maintains possession of the audio recording and
that his primary purpose for recording the call was to protect himself and his family against
Plaintiff’s threats. (Id. at ¶¶ 12, 19). He summarizes the call and attaches a transcription of same
to his affidavit. (Id. at ¶¶ 11, 13-17; Docket No. 4-3). Defendant Deeble states that Plaintiff
informed him that he was in Ohio, not Pennsylvania, and that the telephone call did not include
anyone located in Pennsylvania. (Docket No. 4-2 at ¶¶ 15, 18).
III.
PROCEDURAL HISTORY
Plaintiff initiated this case by filing his Complaint in the Court of Common Pleas of
Allegheny County on December 22, 2016. (Docket No. 1-2).
Defendants responded by
removing the case to this Court on January 20, 2017. (Docket No. 1). Defendants filed the
pending Motion to Dismiss, along with its Brief in Support and supporting evidence on January
24, 2017. (Docket Nos. 3, 4). Plaintiff filed his response in opposition, to which Defendants
replied. (Docket Nos. 7, 12, 13). No further briefing has been requested and the matter is now
ripe for disposition.
5
IV.
LEGAL STANDARD
Pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, a court may dismiss a
complaint for lack of personal jurisdiction. 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 Weingeroff v. Pilatus Aircraft
Ltd., 566 F.3d 94, 102 (3d Cir. 2009). If an evidentiary hearing is not held, the plaintiff need
only establish a prima facie case of personal jurisdiction, and the plaintiff is entitled to have its
allegations taken as true and all factual disputes drawn in its favor.” 2 Id. (citing Miller Yacht
Sales, Inc. v. Smith, 384 F.3d 93, 97 (3d Cir. 2004))).
In Pennsylvania, courts are authorized to exercise personal jurisdiction over a defendant
to the full extent permitted under the Federal Constitution. See IMO Indus., Inc. v. Kiekert AG,
155 F.3d 254, 258-59 (3d Cir. 1998); see also 42 PA. CONS. STAT. § 5322(b). The Due Process
Clause protects defendants from binding judgments of foreign states with which the defendants
had no significant “‘contacts, ties, or relations.’” Burger King v. Rudzewicz, 471 U.S. 462, 47172 (1985) (quoting Int’l Shoe v. Wash., 326 U.S. 310, 319 (1945)). Due process requires that a
2
The Court notes that it recognizes its authority to order the parties to conduct discovery on contested jurisdictional
issues and to hold an evidentiary hearing to permit the parties to present evidence on these issues. Indeed, this Court
has ordered both discovery and evidentiary hearings in prior cases where personal jurisdiction has been contested by
the parties, see, e.g., Hufnagel v. Ciamacco, 281 F.R.D. 238 (W.D. Pa. Mar. 20, 2012); Rychel v. Yates, No. 09-CV1514, 2011 U.S. Dist. LEXIS 38824 (W.D. Pa. Apr. 11, 2011). Here, Plaintiff argues that the Court should schedule
a hearing on the issues. (Docket No. 7 at 4). However, because Plaintiff has failed to make a threshold prima facie
showing of personal jurisdiction over Defendants, he is not entitled to any jurisdictional discovery or to a
jurisdictional hearing. See, e.g., Fatouros v. Lambrakis, 627 F. App’x 84, 88 (3d Cir. 2015) (affirming the district
court’s holding that it lacked personal jurisdiction, where it did not hold an evidentiary hearing, because the plaintiff
“did not present a prima facie case that the defendants purposefully availed themselves of conducting activity in
New Jersey”); Eurofins Pharma US Holdings v. BioAlliance Pharma SA, 623 F.3d 147, 157 (3d Cir. 2010) (holding
that “[i]f the plaintiff presents factual allegations that suggest with reasonable particularity the possible existence of
the requisite contacts between the party and the forum state, the plaintiff’s right to conduct jurisdictional discovery
should be sustained”) (internal quotations and alterations omitted); Mass. Sch. of Law at Andover, Inc. v. Am. Bar
Ass’n, 107 F.3d 1026, 1042 (3d Cir. 1997) (concluding that “mere unsupported allegation[s] that the defendant
‘transacts business’ in an area” were “clearly frivolous” and did not warrant discovery).
6
defendant be provided a “‘fair warning’” and a “‘degree of predictability’” regarding how its
conduct may subject it to legal process and liability in a particular forum. Id. (quoting Shaffer v.
Heitner, 433 U.S. 186, 218 (1977), and World-Wide Volkswagen Corp. v. Woodson, 444 U.S.
286, 297 (1980)).
Personal jurisdiction may be established in accordance with these Constitutional
principles through a showing of general or specific jurisdiction. Only specific jurisdiction is
relevant to this matter. “Specific jurisdiction” is “personal jurisdiction over a defendant in a suit
arising out of or related to the defendant’s contacts with the forum.” Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.8 (1984). To establish specific personal jurisdiction,
a plaintiff must show that a defendant had fair warning that he or she was subject to legal process
in a particular state because the defendant had “minimum contacts” with the state. Marten v.
Godwin, 499 F.3d 290, 296 (3d Cir. 2007) (citing Burger King, 47 U.S. at 472). A court
generally determines specific jurisdiction on a claim-by-claim basis. O’Connor v. Sandy Lane
Hotel Co., Ltd., 496 F.3d 312, 318 n.3 (3d Cir. 2007) (citing Remick v. Manfredy, 238 F.3d 248,
255–56 (3d Cir. 2001)). As to contract disputes, the “traditional test” of specific personal
jurisdiction is utilized. As such, the plaintiff must demonstrate each of the following:
First, the defendant must have purposefully directed its activities at
the forum. Second, the litigation must arise out of or relate to at
least one of those activities. And third, if the prior two
requirements are met, a court may consider whether the exercise of
jurisdiction otherwise comports with fair play and substantial
justice.
Id. at 317 (internal quotations, citations, and alterations omitted). In intentional tort cases,
specific personal jurisdiction is evaluated under the Calder “effects test” which necessitates a
plaintiff to prove these factors:
7
(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; (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.
IMO Indus., Inc., 155 F.3d at 265-66 (footnote omitted).
V.
DISCUSSION
It is undisputed that Defendant Deeble is a citizen of Idaho and does not have continuous
and systematic contacts with Pennsylvania.
Plaintiff has also sued an incorrect entity by
identifying “Tranont, Inc.” as a defendant. However, it is also undisputed that iMoney Tools,
LLC d/b/a Tranont is a citizen of Utah and that it does not have continuous and systematic
contacts with Pennsylvania. (Docket No. 4-1). Therefore, the Court does not have general
jurisdiction over the parties. See, e.g., Element Fin. Corp. v. ComQi, Inc., 52 F. Supp. 3d 739,
745-46 (E.D. Pa. 2014) (in a case where the plaintiff identified the wrong entity as a defendant,
the court found that it did not have general jurisdiction over the defendant because the plaintiff
“has not shown by competent evidence, actual proofs, or affidavits that we have general
jurisdiction, as defendant ComQi has demonstrated that it is not the same business [the plaintiff]
contemplates”).
The Court now turns to the dispute between the parties to determine whether
Plaintiff’s alleged claim-specific actions are sufficient for the Court to find that it has specific
personal jurisdiction over this case. (Id.). In support of its Motion to Dismiss, Defendants
contend that Plaintiff has failed to meet his burden to establish a prima facie case of specific
personal jurisdiction. (Docket Nos. 4, 13). Plaintiff counters that jurisdiction is proper in this
Court. (Docket No. 7). As noted above, the Court is required to apply slightly different tests to
8
analyze whether personal jurisdiction is appropriate over Plaintiff’s civil claims and first turns to
its evaluation of the breach of contract action.
a. Breach of Contract Claims
In a breach of contract case, the Court “consider[s] the totality of the circumstances,
including the location and character of the contract negotiations, the terms of the contract, and
the parties’ actual course of dealing.” Remick, 238 F.3d at 256. Merely contracting with a
resident of the forum state is not sufficient to confer personal jurisdiction over a nonresident.
See Grand Entm’t Group v. Star Media Sales, 988 F.2d 476, 482 (3d Cir.1993) (“[A] contract
alone does not ‘automatically establish sufficient minimum contacts in the other party’s home
forum.’”) (quoting Burger King, 471 U.S. at 478). However, “[p]arties who ‘reach out beyond
[their] state and create continuing relationships and obligations with citizens of another state’ are
subject to the regulations of their activity in that undertaking.” General Elec. Co. v. Deutz AG,
270 F.3d 144, 150 (3d Cir. 2001) (quoting Burger King, 471 U.S. at 473). A defendant need not
physically enter the forum -- as communications by email, mail, and telephone may suffice if
such contacts through these media amount to deliberate targeting of the forum by the defendant.
O’Connor, 496 F.3d at 317.
But, the “unilateral activit[ies] of those who claim some
relationship with a nonresident defendant” and “contacts with a state’s citizens that take place
outside the state are not purposeful contacts with the state itself.” Id. (internal quotations and
citation omitted). Further,
[w]here the only contacts an out of state defendant has with the
forum state are that it concluded a contract with a forum state
plaintiff and sent some related communications to that plaintiff,
and where the contract negotiations were initiated by the plaintiff,
the contract is to be performed entirely outside the forum state, the
contract does not contain a choice-of-law clause designating the
9
application of forum state law, and the contract does not create
long-term or substantial ties with the forum state, the defendant
does not have sufficient contacts.
Hufnagel, 281 F.R.D. at 246-47 (quoting Rotondo Weinreich Enters. v. Rock City Mech., Inc.,
No. 04-CV-5285, 2005 U.S. Dist. LEXIS 764, at *18 (E.D. Pa. Jan. 19, 2005)).
Underlying this case is an alleged agreement between the parties pursuant to which they
agreed to a covenant not to compete. (Docket No. 1-2 at ¶¶ 44-48). Plaintiff attaches to his
Complaint an unsigned copy of the ACN contract and US terms and conditions. (Id. at 26-30).
The purported contract identifies ACN as a North Carolina limited liability company and states
that “[t]his Agreement shall be governed by the laws of the state of North Carolina and the
Federal Arbitration Act.” (Id. at 26, 29). The terms of the alleged contract provide no reference
to Pennsylvania law controlling any aspect of the parties’ relationship. (Id. at 26-30).
Moreover, the unsigned contract, which does not name Plaintiff nor Defendants, is
unexecuted and refers to the signee’s alleged relationship with non-party ACN. (Id.). It appears
that the unsigned contract was between Plaintiff and ACN. There is no indication that the
purported contract was between Defendant Deeble and/or Defendant Tranont and ACN, and
Plaintiff has not attached a contract executed by Defendant Deeble and/or Defendant Tranont
and ACN.3 In addition, the terms of the alleged agreement provide that the signee is “an
independent contractor responsible for [his or her] own business and not an agent, legal
representative or employee of ACN.” (Docket No. 1-2 at 27). Thus, when he was associated
with ACN, Plaintiff (as well as Defendants) agreed that he was not an agent of ACN. Further,
Plaintiff has not pled the location and character of the contract negotiations. See Rychel, 2011
3
To this end, the Court notes that Pennsylvania’s state pleading practice provides that when any claim is based upon
an agreement or a writing, it must be attached to the pleading. Pa. R. CIV. P. 1019.
10
U.S. Dist. LEXIS 38824, at *42; see also Wotring v. Stoughton, No. 2:15-CV-1710, 2016 U.S.
Dist. LEXIS 116576, at *21 (W.D. Pa. Aug. 29, 2016) (finding that negotiating a contract in
Pennsylvania was insufficient “to show that the individual defendants purposefully directed any
activities at the Commonwealth” and concluding that the litigation did not “arise out of or relate
to the non-resident defendant's activities with the forum”). To the extent that Plaintiff has made
allegations that Defendants, as non-residents, solicited business from Pennsylvania, they are
general, conclusory, and do not meet the pleading standards set forth in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007).
Hence, the Court finds that personal jurisdiction over
Defendants is lacking. See, e.g., Rychel, 2011 U.S. Dist. LEXIS 38824, at *46-53; Thomas v.
Vinculum Grp. Ltd., No. 15-CV-3194, 2015 U.S. Dist. LEXIS 172143, at *8-10 (D.N.J. Dec. 23,
2015) (finding a lack of personal jurisdiction and holding that “it cannot be said that Defendants
purposely availed themselves of the laws of this state such that they could have reasonably
foreseen being haled into court in this state” where the defendant was not domiciled in New
Jersey and there was no evidence that the defendants engaged in any business of personal
dealings with New Jersey); Santana Prods., Inc. v. Bobrick Washroom Equip., Inc., 14 F. Supp.
2d 710, 713-714 (M.D. Pa. 1998) (finding a lack of personal jurisdiction where the plaintiff
“failed to identify a single occasion when [the defendants] generated a business contact in
Pennsylvania”) (emphasis in original).
For these reasons and upon consideration of the totality of the facts and circumstances,
the Court finds that it lacks personal jurisdiction over Defendants as to the breach of contract
claim.
11
b. Tortious Claims
As discussed above, specific personal jurisdiction of tortious claims is evaluated under
the Calder “effects test” which necessitates a plaintiff to prove that: (1) the defendant committed
an intentional tort; (2) the plaintiff felt the brunt of the harm in the forum; and (3) the defendant
expressly aimed his tortious conduct at the forum. IMO Indus., Inc., 155 F.3d at 265-66. The
Third Circuit 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, “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. “[T]he Calder ‘effects test’ can only be satisfied if the plaintiff can point 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. (emphasis in original).
Here, Plaintiff has not satisfied the Calder effects test. He does not set out facts to show
that Defendants aimed tortious conduct towards the state with the “intentionality” that is required
for specific jurisdiction. Marten, 499 F.3d at 297. Indeed, none of the parties were located in
Pennsylvania when the telephone call was recorded, as Defendant Deeble was located in New
Jersey, while Plaintiff was located in Ohio. (Docket No. 4-2 at ¶¶ 9, 15, 18). Plaintiff does not
allege that any alleged tortious conduct took place in Pennsylvania or that the call was published
in Pennsylvania. (Docket No. 1-2). The only connection to Pennsylvania is Plaintiff’s residence.
(See id.). It is well settled that the “mere allegation that the plaintiff feels the effect of the
defendant’s tortious conduct in the forum because the plaintiff is located there is insufficient to
12
satisfy Calder.” IMO Indus., 155 F.3d at 263; see also Rychel, 2011 U.S. Dist. LEXIS 38824, at
*45 (“[T]o establish that a defendant ‘expressly aimed’ his conduct, the plaintiff has to
demonstrate ‘the defendant knew that the plaintiff would suffer the brunt of the harm caused by
the tortious conduct in the forum, and point to specific activity indicating that the defendant
expressly aimed his tortious conduct at the forum.’”) (quoting Marten, 499 F.3d at 297-98). Cf.
Gehling v. St. George’s Sch. of Med., Ltd., 773 F.2d 539, 544 (3d Cir. Pa. 1985) (“[T]he cause of
action arises from defendants’ in-state activities, and the defendants’ misrepresentation, which
occurred and caused injury in Pennsylvania to Pennsylvania residents.”). Certainly, there is no
evidence presently before this Court that Defendants expressly aimed their alleged tortious
activities at this forum.
Following the applicable precedent, it is clear to this Court that
Pennsylvania cannot be the focal point of the claimed tortious activity, see Rychel, 2011 U.S.
Dist. LEXIS 38824, at *54-55, and the Court holds that Plaintiff has failed to meet his burden to
establish specific personal jurisdiction over Defendants for his tort claims.
As a final matter, the Court notes that New Jersey, Ohio, and Idaho permit telephone calls
to be recorded provided that one party to the conversation consents to the recording. See N.J.
STAT. §§ 2A:156A-3; 2A:156A-4(d); OHIO REV. CODE ANN. §§ 2933.51, 2933.52(B)(4); IDAHO
CODE ANN. § 18-6702(2)(d). Thus, given the factual circumstances surrounding the recorded
call, Defendants’ interception of the call may not be illegal.
c. Vacation of Prior Order
Given that the Court lacks jurisdiction over this matter, it must also vacate the Court of
Common Pleas of Allegheny County’s injunctive order against Defendants. 4 See, e.g., United
4
Additionally, the Court notes that the docket entry report in the Court of Common Pleas of Allegheny County
reflects that Plaintiff did not serve his affidavit of service of the emergency petition upon Defendants until January
13
States v. Rice, 176 F.2d 373, 376 (3d Cir. 1949) (“Since there was no jurisdiction to enter that
order it may be set aside at any time and we will effect that result sua sponte.”); see also United
States v. Magnan, 622 F. App’x 719, 723 (10th Cir. 2015) (explaining that where the district
court lacked jurisdiction, its previous order “was a nullity” and holding that “[b]y the same
token, because the state court lacked jurisdiction to order [the defendant] to enter a plea, it
follows that the plea itself is a nullity”); In re Establishment Inspection of Hern Iron Works, 881
F.2d 722, 726-27 (9th Cir. 1989) (stating that any court order issued without jurisdiction is a
nullity or “nothing at all”).5
d. Conclusion/Transfer
Because this Court lacks personal jurisdiction over Defendants, the question remains
whether the Court should dismiss this action or transfer it to an appropriate District Court
pursuant to 28 U.S.C. § 1631. See Gehling, 773 F.2d at 544 (stating that a district court lacking
personal jurisdiction can transfer a case to a district in which the case could have originally been
brought). Section 1631 provides, in pertinent part:
Whenever 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 such action or appeal to any other such
court in which the action or appeal could have been brought at the
time it was filed . . . and the action . . . shall proceed as if it has
been filed in . . . the court to which it is transferred on the date
upon which it was actually filed in . . . the court from which it is
transferred.
28 U.S.C. § 1631.
11, 2017, fourteen days after the court made the injunction permanent. See Maser v. Deeble et al., GD 16-024467,
at Docket No. 8 (Jan. 11, 2017).
5
Given that the Court has determined that Pennsylvania is not the appropriate jurisdiction for this matter, it also
concludes that it does not have jurisdiction over Plaintiff’s claim against Defendants for their alleged violation of
Pennsylvania’s Unfair Trade Practices and Consumer Protection law. (See Docket No. 1-2 at ¶¶ 64-71).
14
In this Court’s opinion, given the circumstances of this case detailed above, the interests
of justice are better served if this case is dismissed. Because the Court’s finding is not an
adjudication on the merits, the Court’s dismissal is without prejudice. Plaintiff is entitled to
refile his claims against Defendants in the appropriate jurisdiction. See FED R. CIV. P. 41(b)
(providing that dismissals for lack jurisdiction, improper venue, or failure to join a party do not
operate as adjudications on the merits unless explicitly stated); see also Compagnie Des Bauxites
de Guinee v. L’Union Atlantique S.A. D’Assurances, 723 F.2d 357, 360 (3d Cir. 1983) (holding
that because “a dismissal for want of in personam jurisdiction is not a judgment on the merits of
the cause of action itself,” the plaintiff “was entitled to file a second suit on the same cause of
action”); Stella Maris Ins. Co. v. Catholic Health East, No. 10-CV-1946, 2010 U.S. Dist. LEXIS
93969, at *21 (E.D. Pa. Sept. 8, 2010) (dismissing the plaintiff’s complaint without prejudice and
explaining that the plaintiff could refile its action in the appropriate jurisdiction).6
6
The Court notes that it questions whether this action is barred by Paragraph 17 of the alleged contract, mandating
arbitration, and by Paragraph 12 of the alleged contract, which provides:
IN NO EVENT WILL ACN, ANY OTHER ACN COMPANY OR ANY OTHER ACN
PROVIDER BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SEPCIAL, PUNITIVE,
OR INCIDENTAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS
PROFITS, BUSINESS INTERRUPTION, AND THE LIKE), ARISING OUT OF ANY CAUSE,
INCLUDING BUT NOT LIMITED TO, BREACH OF WARRANTY OR THE DELAY, ACT,
ERROR OR OMISSION OF ACN, ANY ACN COMPANY OR ANY ACN PROVIDER, OR
THE DELIVERY, NONDELIVERY, DISCONTINUATION, OR MODIFICATION OF ANY
PRODUCT OR SERVICE BY ACN, ANY ACN COMPANY, OR ANY ACN PROVIDER,
EVEN IF ACN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(Docket No. 1-2 at 28-29).
15
VI.
CONCLUSION
Based on the foregoing, Defendants’ Motion to Dismiss [3] is granted without prejudice
to Plaintiff refiling this action in the appropriate jurisdiction. An appropriate Order follows.
s/Nora Barry Fischer
Nora Barry Fischer
United States District Judge
Date: March 9, 2017
cc/ecf: All counsel of record.
16
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?