Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-22-2007

Marten v. Godwin
Precedential or Non-Precedential: Precedential

Docket No. 05-5520




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                                             PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                    ____________

                          No. 05-5520
                         ____________

                        CRAIG MARTEN,

                           Appellant,

                               v.

   HAROLD GODWIN, JACK E. FINCHUAM, RONALD
 REGAN, DAVID SCHOLEWBURGER, THE UNIVERSITY
        OF KANSAS, AND JAMES KLEOPPEL

                         ____________

       On Appeal from the United States District Court
          for the Eastern District of Pennsylvania
                     (No. 03-cv-06734)

         District Judge: Honorable Petrese B. Tucker

                  Argued November 9, 2006

 Before: SLOVITER, CHAGARES and GREENBERG, Circuit
                       Judges.

                         ____________

                  (Filed: August 22, 2007)


Stanley B. Cheiken (Argued)
261 Old York Road
Jenkintown, PA 19046

Counsel for Appellant
Steven K. Ludwig (Argued)
Fox Rothschild, LLP
2000 Market Street, Tenth Floor
Philadelphia, PA 19103

Counsel for Appellee

                  OPINION OF THE COURT


CHAGARES, Circuit Judge.

       After being accused of plagiarism and expelled from an
internet-based educational program, Craig Marten filed a
complaint in the United States District Court for the Eastern
District of Pennsylvania alleging defamation in violation of state
law and retaliation in violation of the First Amendment pursuant
to 42 U.S.C. § 1983. He appeals from an order of the District
Court granting defendants’ motion for summary judgment for
lack of personal jurisdiction.        Because Marten has not
established that the nonresident defendants expressly aimed their
conduct at Pennsylvania, we will affirm the District Court’s
dismissal of Marten’s claims.

                                I.

       The University of Kansas School of Pharmacy offers a
Non-Traditional Pharm.D. (NTPD) Program in which licensed
pharmacists can pursue advanced degrees. The course work for
the program is completed online. Students communicate with
their professors, who are primarily located in Kansas, by phone
and email.

       While living and working in Pennsylvania, Marten
learned about the University of Kansas NTPD program from his
coworkers. He visited the University of Kansas’ website, which
provided information about the program. Marten then submitted
an application to the program and was accepted in August of
2001. He deferred the start of his course work until the
following spring.


                                2
       During the time Marten was enrolled, defendant Ronald
Regan was Director of the program, defendant Harold Godwin
was a professor, and defendant James Kleoppel was an associate
clinical professor.1 The defendants never visited Pennsylvania
and never recruited Pennsylvania pharmacists to enroll in the
University’s program.

        Marten communicated with his professors via email,
frequently complaining about the grades he received. He sent
email messages to defendant Regan, appealing disputes he had
with professors. Marten also exchanged emails with Regan
regarding concerns he had about the program’s three-year time
limit for completing course work.

      Marten alleges he complained to a “Dean Sorenson” that
Regan was not responding adequately to his complaints.
Defendants assert that the School of Pharmacy does not have an
administrator by the name “Sorenson.” Shortly after purportedly
speaking with Sorenson, Marten claims he received a call from
Regan, in which Regan threatened to have Marten expelled from
the NTPD program.          According to Marten’s Amended
Complaint, Marten brought these threats to the attention of the
University Ombudsman and the Better Business Bureau of
Northeast Kansas.

       The following fall, Marten took a course taught by
defendant Kleoppel. The course required students to complete
several written assignments. After reviewing one of Marten’s
assignments, Kleoppel accused Marten of academic misconduct
because his assignment included text copied directly from a
website without any indication that the language was not
Marten’s own. A few months later, Kleoppel alerted his
colleagues that he received a second problematic assignment
from Marten—this one appeared to include word-for-word
passages from a reference book without quotation marks or

       1
           Marten originally brought claims against two other
University employees, Jack Finchuam and David Scholewburger,
but those claims were terminated in the District Court and are not
part of this appeal. The University of Kansas is named as a
defendant under a theory of respondeat superior for the defamation
claim.
                                3
proper citations. Following these two instances of suspected
academic misconduct, Kleoppel recommended to Regan that
Marten be expelled from the NTPD program. Regan agreed
with Kleoppel’s recommendation and he so informed defendant
Godwin.      Godwin also agreed and he forwarded his
recommendation for expulsion to the Dean of the School of
Pharmacy, Jack Finchuam. Soon thereafter, Dean Finchuam sent
Marten a letter informing him that he was expelled from the
NTPD program on the grounds of academic misconduct.

        Marten filed a two-count complaint in the District Court
for the Eastern District of Pennsylvania. He alleged defamation
in violation of state law and retaliation in violation of the First
Amendment pursuant to 42 U.S.C. § 1983. According to
Marten’s Amended Complaint, Kleoppel, Godwin and Regan
retaliated against Marten because he complained about
defendant Regan’s conduct. Their retaliatory action allegedly
consisted of making false accusations of plagiarism and then
recommending his expulsion.          Marten separately alleged
defendants’ accusations of plagiarism constituted defamation
under state law.

       Defendants filed a motion to dismiss the complaint for
lack of personal jurisdiction. The District Court denied the
motion without issuing an opinion. After discovery, defendants
moved for summary judgment on the ground that the District
Court lacked personal jurisdiction over the defendants. The
District Court granted defendants’ motion for summary
judgment, explaining that Marten did not meet his burden to
establish jurisdiction as he relied “on bare, unsubstantiated
allegations without proffering evidence” of jurisdictional
significance. Marten v. Godwin, No. 03-6734, 

, at *3 (E.D. Pa. December 6, 2005); see Fed. R. Civ. P.
56(e) (“When a motion for summary judgment is made and
supported as provided in this rule [with sworn affidavits], an
adverse party may not rest upon the mere allegations or denials
of the adverse party’s pleading, but the adverse party’s response,
by affidavits or as otherwise provided in this rule, must set forth
specific facts showing that there is a genuine issue for trial.”);
Connors v. Fawn Min. Corp., 

, 489 (3d Cir. 1994).
                                II.


                                4
       The District Court had subject matter jurisdiction
pursuant to 28 U.S.C. §§ 1331 and 1367. We have jurisdiction
to review the District Court’s final order granting summary
judgment pursuant to 28 U.S.C. § 1291.

       In reviewing a grant of summary judgment we exercise
plenary review and apply the same standard as the District
Court. Jakimas v. Hoffmann-La Roche, Inc., 

, 777
(3d Cir. 2007). Rule 56 of the Federal Rules of Civil Procedure
“mandates the entry of summary judgment, after adequate time
for discovery and upon motion, against a party who fails to make
a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear
the burden of proof at trial.” Celotex Corp. v. Catrett, 

, 322-23 (1986).2 Marten’s evidence “is to be believed, and

       2
           Dismissing a claim for lack of personal jurisdiction is
more appropriately done by way of Rule 12(b)(2) of the Federal
Rules of Civil Procedure, rather than Rule 56. A summary
judgment order pursuant to Rule 56 “is a ruling on the merits which
if affirmed would have preclusive effect.” EF Operating Corp. v.
Am. Bldgs., 

, 1049 (3d Cir. 1993). The District
Court decided this case as a Rule 56 motion, but it is “clear from
the district court’s opinion [that] the claim has not been disposed
of on the merits and is therefore only abated.” Martucci v. Mayer,

, 260-61 (3d Cir. 1954) (considering a summary
judgment motion based on lack of indispensable parties as a motion
to dismiss); see 10A Charles Alan Wright, Federal Practice and
Procedure, § 2713 (“In general, courts have ruled that summary
judgment is an inappropriate vehicle for raising a question
concerning the courts[’] . . . personal jurisdiction . . . .”).
Nevertheless, “[b]ecause this case comes to us . . . [as a] motion for
summary judgment, we must assess the record under the standard
set forth in Rule 56 of the Federal Rules of Civil Procedure.”
Lujan v. Nat’l Wildlife Fed’n, 

, 884 (1990); see Ball
v. Metallurgie Hoboken-Overpelt, S.A., 

, 197 (2d Cir.
1990) (“If the defendant asserts in a Rule 56 motion that
undisputed facts show the absence of jurisdiction, the court
proceeds, as with any summary judgment motion, to determine if
undisputed facts exist that warrant the relief sought.”).

      In any event, we exercise plenary review over the District
Court’s decision regardless of whether we treat it as a summary
                                  5
all justifiable inferences are to be drawn in his favor.” Anderson
v. Liberty Lobby, Inc., 

, 255 (1986).

                                III.

        If an issue is raised as to whether a court lacks personal
jurisdiction over a defendant, the plaintiff bears the burden of
showing that personal jurisdiction exists. Gen. Elec. Co. v.
Deutz AG, 

, 150 (3d Cir. 2001). Pursuant to Rule
4(k) of the Federal Rules of Civil Procedure, “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.” See Provident Nat’l 

; Fed. R.
Civ. P. 4(k)(1)(A). In Pennsylvania, state law provides for
jurisdiction “to the fullest extent allowed under the Constitution
of the United States” and “based on the most minimum contact
with [the] Commonwealth allowed under the Constitution of the
United States.” 42 Pa. Cons. Stat. Ann. § 5322(b).

       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.” Int’l Shoe Co. v. Washington, 

,
316 (1945) (quotation marks and citations omitted). Having
minimum contacts with another state provides “‘fair warning’”
to a defendant that he or she may be subject to suit in that state.
See Burger King Corp. v. Rudzewicz, 

, 472 (1985)
(quoting Shaffer v. Heitner, 

, 218 (1977) (Stevens,


judgment order or a Rule 12(b)(2) dismissal. See Pinker v. Roche
Holdings Ltd., 

, 368 (3d Cir. 2002) (“We review a
district court’s decision with respect to personal jurisdiction de
novo.”). And, even accepting Marten’s allegations as true and
construing disputed facts in his favor, as is the general practice in
reviewing 12(b)(2) motions, we conclude that the District Court did
not have jurisdiction over these defendants. See, e.g., Carteret Sav.
Bank, F.A. v. Shushan, 

, 142 n.1 (3d Cir. 1992)
(“[C]ourts reviewing a motion to dismiss a case for lack of in
personam jurisdiction must accept all of the plaintiff’s allegations
as true and construe disputed facts in favor of the plaintiff.”).

                                 6
J., concurring in judgment)).

       These basic due process principles are reflected in the two
recognized types of personal jurisdiction. General jurisdiction
exists when a defendant has maintained systematic and
continuous contacts with the forum state. See Helicopteros
Nacionales de Colombia, S.A. v. Hall, 

, 414-15 &
n.8 (1984). Specific jurisdiction exists when the claim arises
from or relates to conduct purposely directed at the forum state.
See 

& n.9. Marten does not argue that the District
Court had general jurisdiction over these defendants.
Accordingly, we are only concerned with whether the court had
specific jurisdiction. See Pennzoil 

(“[N]o party in this case contends that there is a basis for general
jurisdiction in Pennsylvania—so we are free to consider solely
whether the alternative form of personal jurisdiction is present:
specific personal jurisdiction.”).

        Determining whether specific jurisdiction exists involves
a three-part inquiry. O’Connor v. Sandy Lane Hotel Co., Ltd., –
F.3d –, – , 

, at *2 (3d Cir. 2007). First, the
defendant must have “‘purposefully directed’ his activities” at
the forum. Burger 

(quoting Keeton v.
Hustler Magazine, Inc., 

, 774 (1984)). Second, the
plaintiff’s claim must “arise out of or relate to” at least one of
those specific activities. 

. Third,
courts may consider additional factors to ensure that the
assertion of jurisdiction otherwise “comport[s] with ‘fair play
and substantial justice.’” Burger 

(quoting
Int’l 

). Because this analysis depends on
the relationship between the claims and contacts, we generally
evaluate specific jurisdiction on a claim-by-claim basis. See,
e.g., Remick v. Manfredy, 

, 255-56 (3d Cir. 2001).

       Marten does not argue that the defendants’ contacts with
Pennsylvania satisfy the traditional three-step analysis for
specific jurisdiction. Instead, he relies on Calder v. Jones, 

(1984), to argue that the District Court had specific
jurisdiction over these defendants based on the effects their
Kansas conduct had in Pennsylvania.

       In Calder, an entertainer living in California sued two
residents of Florida for libel because of an article published in

                                 7
the National Enquirer. The author and editor of the article were
subject to jurisdiction in California based on the “effects” of
their Florida actions in California.       The Supreme Court
explained that the defendants expressly aimed their intentional,
tortious activity at California: “[T]hey knew [the article] would
have a potentially devastating impact upon respondent. And
they knew that the brunt of that injury would be felt by
respondent in the State in which she lives and works and in
which the National Enquirer has its largest circulation.” 

As a result, the Court concluded that defendants could
“reasonably anticipate being haled into court” in California. 

(citing World-Wide Volkswagen Corp. v. 

; Kulko v. California Superior Court, 

,
97-98 (1978); 

).

      This Court has determined that Calder allows a plaintiff
to demonstrate personal jurisdiction if he or she shows:

              (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. v. Kiekert AG, 

, 265-66 (3d Cir. 1998)
(footnote omitted). If a plaintiff satisfies these three elements,
known collectively as the “effects test,” the plaintiff can
demonstrate a court’s jurisdiction over a defendant even when
the defendant’s “contacts with the forum alone . . . are far too
small to comport with the requirements of due process” under
our traditional analysis. 

        The effects test and traditional specific jurisdiction
analysis are different, but they are cut from the same cloth. Just
as the standard test prevents a defendant from “be[ing] haled into
a jurisdiction solely as a result of random, fortuitous, or
attenuated contacts,” Burger 

(citations and
quotation marks omitted), the effects test prevents a defendant
from being haled into a jurisdiction solely because the defendant

                                8
intentionally caused harm that was felt in the forum state if the
defendant did not expressly aim his conduct at that state. See,
e.g., Toys “R” Us, Inc. v. Step Two, S.A., 

, 455 n.6
(3d Cir. 2003) (indicating the effects test is an alternative to
“minimum contacts” analysis but declaring they both require a
similar type of “intentionality” on the part of the defendant).
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. “[T]he foreseeability that is
critical to due process analysis is . . . that the defendant’s
conduct and connection with the forum State are such that he
should reasonably anticipate being haled into court there.”
World-Wide 

.

        Only if the “expressly aimed” element of the effects test
is met need we consider the other two elements. See IMO

. To establish that the 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
its tortious conduct at the forum.” 

If a plaintiff fails
to show that the defendant “‘manifest[ed] behavior intentionally
targeted at and focused on’ the forum,” IMO 

(quoting ESAB Group Inc. v. Centricut, Inc., 

,
625 (4th Cir. 1997), the plaintiff fails to establish jurisdiction
under the effects test. In Remick v. Manfredy, 

(3d
Cir. 2001), for example, we dismissed a defamation claim for
lack of jurisdiction even though we acknowledged that the
defendant could have intentionally defamed the plaintiff and the
plaintiff could have felt the bulk of the harm in the forum state.
In that case, defendants sent plaintiff a defamatory letter that was
read by plaintiff’s Pennsylvania co-workers. Defendants also
made defamatory statements to members of plaintiff’s
professional community. 

. We
concluded that the plaintiff failed to establish jurisdiction over
the defamation claim because plaintiff provided “no indication
that the [defamatory] letter was targeted at . . . anyone in
Pennsylvania other than [plaintiff],” and plaintiff did not assert
that Pennsylvania had a “unique relationship” with plaintiff’s
professional community. See 

a simple point: a plaintiff’s residence is

                                 9
relevant to the “jurisdictional inquiry” insofar as “residence in
the forum may, because of defendant’s relationship with the
plaintiff, enhance defendant’s contacts with the forum.” 

. However, the state of a plaintiff’s residence
does not on its own create jurisdiction over nonresident
defendants. Jurisdiction is proper when the state of a plaintiff’s
residence is “the focus of the activities of the defendant out of
which the suit arises.” See 

these principles to Marten’s defamation and
retaliation claims, we conclude Marten has not carried his
burden of establishing personal jurisdiction under the effects
test. In particular, Marten has not shown with respect to either
claim that defendants expressly aimed their conduct at
Pennsylvania.

        Marten alleges defamation, but nothing in the record
indicates that defendants made defamatory statements or sent
defamatory material to anyone in Pennsylvania (other than,
perhaps, Marten). As illustrated by the dismissal of the
plaintiff’s defamation claim in Remick, where defendants aimed
their defamatory statements is jurisdictionally significant.

. Here, even if we were to assume the
truth of all of Marten’s allegations, and assume he felt the brunt
of the harm in Pennsylvania, we still could not find jurisdiction.
He failed to allege any specific facts showing a deliberate
targeting of Pennsylvania. See IMO 

-66.
Accordingly, Marten failed to show jurisdiction over these
defendants for his defamation claim.

       Marten has similarly failed to show jurisdiction over
defendants for his retaliation claim. That claim rests on his
allegation that he was falsely accused of academic misconduct
and consequentially expelled because he exercised his First
Amendment rights in complaining about Regan.3 But even if we




       3
          Defendants do not dispute that personal jurisdiction for
the retaliation claim can be analyzed under the effects test.
                               10
assume Marten felt the brunt of the harm in Pennsylvania,4 he
has utterly failed to persuade us that defendants expressly aimed
their allegedly retaliatory conduct at Pennsylvania.

        Marten relies on the fact that at the time of his expulsion
he resided in Pennsylvania. At oral argument, his counsel
asserted that Pennsylvania has jurisdiction over these
nonresident defendants because IMO Industries instructs courts
to focus on the place where a plaintiff has suffered harm and
“[t]he constitutional harm in this case was felt where Mr. Marten
resided, where Mr. Marten asserted his [First Amendment]
rights.” This misconstrues our analysis in IMO Industries. True,
the effects test asks whether the plaintiff felt the brunt of the
harm in the forum state, but it also asks whether defendants knew
that the plaintiff would suffer the harm there and whether they
aimed their tortious conduct at that state. See IMO 

(explaining “the geographical locus of the harm
caused” by an intentional tort is only part of the test).

        In order to satisfy the effects test, a plaintiff alleging
retaliation must show additional facts connecting the defendant
to the forum state other than the plaintiff’s location at the time of
the retaliatory conduct. The elements of First Amendment
retaliation include conduct by the defendant “sufficient to deter a
person of ordinary firmness from exercising his constitutional
rights,” and “a causal link” between plaintiff’s constitutionally

       4
          The conduct at issue in the retaliation claim is a decision
made in Kansas to expel Marten after he directed complaints from
his residence in Pennsylvania to Kansas institutions. The location
of the brunt of the harm caused by this alleged retaliation is not
obvious. If the harm is the expulsion, the web-based nature of the
educational program makes it difficult to determine the earth-
bound location of that harm. If, on the other hand, the harm is the
chilling of Marten’s First Amendment rights, that harm might
travel with him or exist in the location in which he exercised his
rights (Pennsylvania). We do not need to tackle this thorny
conceptual issue, as there is no jurisdiction over these defendants
even if Marten suffered the brunt of the harm in Pennsylvania. See
IMO 

(“Calder requires more than a finding
that the harm caused by the defendant’s intentional tort is primarily
felt within the forum.”).

                                 11
protected activities and the defendant’s retaliatory conduct. See,
e.g., Thomas v. Independence Twp., 

, 296 (3d Cir.
2006). A defendant can commit First Amendment retaliation
without “expressly aiming” his conduct at the plaintiff’s
location, or even knowing where the plaintiff would be likely to
suffer. Thus, a plaintiff demonstrating residence in the forum
state at the time of the retaliatory conduct does not necessarily
meet the effects test. Because Marten failed to show specific
activity indicating the defendants “expressly aimed” their
conduct at Pennsylvania, the District Court did not have
jurisdiction over these defendants. See IMO 

.

                               V.

        Marten has alleged only that defendants harmed him
while he happened to be residing in Pennsylvania. In suing
nonresidents for defamation and retaliation, that is not enough to
establish personal jurisdiction. Because Marten has not shown
defendants expressly aimed their conduct at Pennsylvania, we
will affirm the District Court’s grant of summary judgment.




                               12