Am. Bd. Of Internal Med. v. Todor

AMERICAN BOARD OF INTERNAL MEDICINE

v.ANASTASSIA TODOR, M.D.

CIVIL ACTION NO. 10-CV-2678

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

January 31, 2011

Filed: February 1, 2011

MEMORANDUM AND ORDER

JOYNER, J.

This is yet another civil action commenced by the American Board of Internal Medicine ("ABIM") against an individual physician seeking injunctive relief and money damages for the improper disclosure and dissemination of ABIM's copyright and/or trade secret-protected board certification examination questions.¹ By the motion which is now before us, Defendant Anastassia Todor, M.D. moves for the dismissal of this action on the grounds that this court lacks the requisite in personam jurisdiction to proceed further.

Factual Background

The plaintiff avers in its Second Amended Complaint that some two weeks before taking the August 2008 Internal Medicine Certifying Examination, Defendant Anastassia Todor, M.D. "knowingly gathered and collected hundreds of actual ABIM examination questions from Examinees who had already taken the August 2008 Examination.² Defendant allegedly then forwarded these exam questions to the Arora Board Review ("ABR"), a test-preparation course and in return received from ABR still additional ABIM examination materials. (Second Amended Complaint, ¶1). According to ABIM, it repeatedly notifies candidates for Board Certification that it is the owner of the Examination and that the Exam is a copyrighted work that may not be reproduced. Such notification is given by, inter alia, the candidate's required acceptance of ABIM's "Policies and Practices for Certification" at the time they register for an examination, and by the electronic signing of ABIM's "Pledge of Honesty" which appears on applicants' computer screens immediately prior to the start of, and which is a pre-condition to, the taking of each examination. (Second Amended Complaint, 5s18-20; Langdon Declaration, 59). An additional warning that ABIM will impose severe penalties on any candidates who violate the Pledge of Honesty is again given at the end of each examination. (Second Amended Complaint, 521). Thus, Plaintiff submits, Defendant Todor's conduct constitutes willful copyright infringement in violation of the Copyright Act, 17 U.S.C. §101, et. seq. and willful and malicious misappropriation of trade secrets under 12 Pa.C.S.A. §5302-5304.

As noted, Defendant Todor moves for the dismissal of this action in its entirety on the grounds that this Court lacks the necessary personal jurisdiction over her to proceed further. Specifically, Dr. Todor avers the following pertinent facts: (1) she is currently a resident of the state of Colorado, (2) that at the time she registered for and took the examination she was residing in Michigan, (3) that she registered for the examination online using her computer in Michigan, (4) that she took the exam at an independent testing center located in Troy, Michigan, and (5) that she has never been to and has no other contacts whatsoever with the Commonwealth of Pennsylvania.

In response, the plaintiff asserts that because its "investigation has confirmed that the content of Dr. Todor's email originated from a physician located in Pennsylvania, who sat for his ABIM examination in Pennsylvania and who copied, disclosed and disseminated questions from his Internal Medicine Examination while in Pennsylvania, " it has established a prima facie case of personal jurisdiction entitling it to "have its allegations taken as true and all factual disputes drawn in itsfavor, " and to conduct jurisdictional discovery. (Plaintiff's Memorandum of Law in Opposition to Defendant's Motion to Dismiss, pp. 5, 7).

Standards Applicable to Rule 12(b)(2) Motions

It is undisputed that jurisdiction to resolve cases on the merits requires both authority over the category of claim in suit (subject matter jurisdiction) and authority over the parties (personal jurisdiction), so that the court's decision will bind them. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577, 119 S. Ct. 1563, 1567, 143 L. Ed. 2d 760 (1999). To be sure, "[w]ithout jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause." Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94, 118 S. Ct. 1003, 1012, 140 L. Ed. 2d 210 (1998), quoting Ex parte McCardle, 7 Wall. 506, 514, 19 L. Ed. 264 (1868). For these reasons, the validity of an order of a federal court depends upon the court's having jurisdiction over both the subject matter and the parties. Insurance Corporation of Ireland v. Compagnie Des Bauxites, 45 6 U.S. 694, 701, 102 S. Ct. 2099, 2103, 72 L. Ed. 2d 492 (1982), citing, inter alia, Stoll v. Gottlieb, 305 U.S. 165, 171-172, 59 S. Ct. 134, 137-138, 83 L. Ed. 104 (1938).

A defendant has the burden of raising the defense of lack ofpersonal jurisdiction; failure to do so renders it waived. TES Franchising, LLC v. Dombach, 2010 U.S. Dist. LEXIS 130314, at *3 (E.D. Pa. Dec. 9, 2010); Poole v. Sasson, 122 F. Supp. 2d 556, 557 (E.D. Pa. 2000); Fed. R. Civ. P. 12(h)(1). Under Fed. R. Civ. P. 12(b)(2), the defense of insufficient personal jurisdiction may be raised by filing a motion to dismiss. Once such motion is filed, the plaintiff bears the burden of establishing the court's jurisdiction over the moving defendant(s) by affidavits or other competent evidence. Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324, 330 (3d Cir. 2009); Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 368 (3d Cir. 2002); Dayhoff, Inc. v. H.J. Heinz Co., 86 F.3d 1287, 1302 (3d Cir. 1996). However, given that the plaintiff has a burden of proof to sustain, mere affidavits which parrot and do no more than restate plaintiff's allegations without identification of particular defendants and without factual content do not end the inquiry. Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 66 (3d Cir. 1984). If the court does not hold an evidentiary hearing on the motion, 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). Finally, "it is well established that in deciding a motion to dismiss for lack of jurisdiction, a court is required to accept the plaintiff's allegations as true and is to construe disputedfacts in favor of the plaintiff." Metcalfe, supra, quoting Toys "R" Us, Inc. v. Step Two, S.A., 318 F.3d 446, 457 (3d Cir. 2003).

Discussion and Analysis

Under Fed. R. Civ. P. 4(e), a federal district court may assert personal jurisdiction over a nonresident of the state in which the court sits to the extent authorized by the law of that state. Eurofins Pharma U.S. Holdings v. Bioalliance Pharma, 623 F.3d 147, 155 (3d Cir. 2010). Whether a district court has personal jurisdiction over a nonresident defendant is a two-part inquiry. Id. First, there must be a statutory basis for exercising jurisdiction over the nonresident defendant in accordance with the law of the forum state; second, the nonresident must have minimum contacts with the forum state sufficient to satisfy constitutional due process. Id., citing Metcalfe, 566 F.3d at 330. Pennsylvania's long arm statute provides that its courts' jurisdiction, in addition to existing over a person who transacts any business, does any act, owns any property, etc.,

"...shall extend to all persons who are not within the scope of section 5301 (relating to persons) 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. C. S. A. §5322(b). Thus, Pennsylvania's long arm statutehas been interpreted as authorizing Pennsylvania courts to exercise personal jurisdiction over nonresident defendants to the constitutional limit of the due process clause of the fourteenth amendment. Wolk v. Teledyne Industries, Inc., 475 F. Supp. 2d 491, 503 (E.D. Pa. 2007), citing Mellon Bank (East) PSFS Nat'l Assn. v. Farino, 960 F.2d 1217, 1221 (3d Cir. 1992).

There are two types of personal jurisdiction-general jurisdiction and specific jurisdiction. D'Jamoos v. Pilatus Aircraft, Ltd., 566 F.3d 94, 102 (3d Cir. 2009). General jurisdiction is based upon the defendant's "continuous and systematic" contacts with the forum and exists even if the plaintiff's cause of action arises from the defendant's non-forum related activities. Remick v. Manfredy, 238 F.3d 248, 255 (3d Cir. 2001). In contrast, specific jurisdiction is present only if the plaintiff's cause of action arises out of a defendant's forum-related activities, such that the defendant "should reasonably anticipate being haled into court" in that forum." Id., quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980) and Vetrotex Certainteed Corp. v. Consol. Fiber Glass Products Co., 75 F.3d 147, 151 n.3 (3d Cir. 1996). Such a determination is claim specific because a conclusion that the District Court has jurisdiction over one of the defendants as to a particular claim does not necessarily mean that it has personal jurisdiction overthat same defendant as to another claim. Remick, supra.

Here, it appears from Plaintiff's Memorandum of Law in Opposition to the Defendant's Motion to Dismiss that only the concept of specific jurisdiction is at issue; indeed, there is no evidence whatsoever that this defendant possesses such "continuous and systematic" contacts with this forum to support a finding of general jurisdiction. Accordingly, we undertake the following prescribed three-part inquiry to determine whether there is specific jurisdiction only. See, D'Jamoos, supra.; 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....