Barrett v. Catacombs Press, No. Civ. 99-736.

• Court: United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
• Writing for the Court: Van Antwerpen
• Citation: 44 F.Supp.2d 717
• Docket Number: No. Civ. 99-736.
• Decision Date: 12 April 1999
• Parties: Stephen BARRETT, M.D., Plaintiff, v. The CATACOMBS PRESS, James R. Privitera, M.D., Alan Stang, M.A., Darlene Sherrell, and CDS Networks Inc., Defendants.

44 F.Supp.2d 717 Stephen BARRETT, M.D., Plaintiff,
v.
The CATACOMBS PRESS, James R. Privitera, M.D., Alan Stang, M.A., Darlene Sherrell, and CDS Networks Inc., Defendants. No. Civ. 99-736. United States District Court, E.D. Pennsylvania. April 12, 1999.

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Steven A. Bergstein, Allentown, PA, for plaintiff.

Malcolm J. Gross, Allentown, PA, Charles W. Elliott, Easton, PA, Barbara R. Binis, Philadelphia, Pa, for defendants.

OPINION AND ORDER I. INTRODUCTION

VAN ANTWERPEN, District Judge.

Plaintiff Stephen Barrett filed this action under Pennsylvania's defamation law, against Defendants the Catacombs Press, James R. Privitera, Alan Stang, Darlene Sherrell and CDS Network, Inc. We have jurisdiction over this diversity action pursuant to 28 U.S.C. § 1332.

Defendant Darlene Sherrell has independently moved to dismiss this suit pursuant to Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction. We have reviewed the record and conclude that for the following reasons, this court cannot exercise personal jurisdiction over Defendant Darlene Sherrell.

II. FACTS

Plaintiff in this case is a resident and psychiatrist in Allentown, Pennsylvania. Decl. Barrett 3/5/99 at ¶¶ 1-2. Since 1969, he has been involved in investigating and dealing with many aspects of quackery, health frauds, misinformation and consumer strategy. Id. at ¶ 4. He has also been responsible for writing, co-authoring or editing over 200 publications relating to consumer health. Id. Since December 1996, Plaintiff has maintained a computer Web site called Quackwatch, which provides information about quackery, health frauds and consumer decisions. Id. at ¶ 6. Plaintiff's Web site has received international acclaim, with more than fifty awards and/or favorable mentions in newspapers,

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magazines and journals throughout the world.

Only about 1% of the Quackwatch Web site addresses the fluoridation debate through its "Fluoridation: Don't Let the Poisonmongers Scare You" page. Id. at ¶ 7. This Web site also provides hypertext links to other Web sites that promote fluoridation of public water sources. Decl. Sherrell 4/2/99 at ¶ 4. Although Plaintiff has participated in these activities and has edited a book and a few articles that mention fluoridation, he claims that he has not been involved in promoting fluoridation nationally. Decl. Barrett 3/5/99 at ¶ 5.

Plaintiff first became aware of the existence of Defendant Sherrell, a resident of Oregon, after she joined the health fraud discussion group co-sponsored by the Quackwatch Web site, which has 300 members from across the country.¹ Id. at ¶¶ 8-9. She joined the discussion list by posting a message on-line for view by the

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entire discussion group. In the Plaintiff's opinion, when the volume of messages posted became sufficiently large to be unproductive, he posted a message to that effect which was disseminated to the entire discussion group. Id. at ¶ 9. Ms. Sherrell, however, claims that she simply posted one message to the list and that the remainder of her postings were responses to other participants' postings. Decl. Sherrell 4/2/99 at ¶ 5. She then apparently attempted to engage Plaintiff in a private e-mail discussion about fluoridation. Decl. Barrett 3/5/99 at ¶ 9.

Subsequently, the alleged defamatory statements appeared on Defendant's Web site. Id. at ¶ 10. Plaintiff sent her an e-mail threatening a lawsuit after seeing her Web site. Id. Defendant responded by making some modifications to her Web site and informing Plaintiff of this action via e-mail. Id. at ¶ 11. Plaintiff claims that such modifications made it clear that she was quoting from Mr. Privitera's book, which is available worldwide. Decl. Sherrell 4/2/99 at ¶ 6.

Plaintiff also alleges that Defendant subsequently posted messages with a hypertext link back to her Web site on several listserves or USENET discussion groups including: (1) a Dental Public Health list maintained by a computer at the University of Pittsburgh, which has national distribution; (2) to the owner of the Chiro-List which has about 350 chiropractors across the country; (3) at "sci.med.dentistry"; (4) at "misc.health.alternative," a USENET group that is believed to have tens of thousands of participants; and (5) at "misc.kids.health," a USENET news group that probably has thousands of participants. Decl. Barrett 3/5/99 at ¶¶ 12-21. In December, Defendant opened another Web site which Plaintiff alleges is dedicated to "attacking me and several colleagues." Id. at ¶ 22. Plaintiff alleges that he has "good reason to believe that she posted a total of at least 90 messages to at least 12 USENET news groups, with total membership in the tens of thousands, and that many of these messages encouraged people to visit one or more [of] her sites that contained defamatory statements about me." Id. at ¶ 23. Plaintiff, however, has not offered any evidence to support this allegation.

Defendant is closely associated with individuals who are interested in advocating against the fluoridation of water sources throughout the United States. Id. at ¶ 27. Defendant states that she has never been physically present in the Commonwealth of Pennsylvania except to pass through the state a few times, more than ten years ago.² Decl. Sherrell 2/18/99 at ¶ 6. She also alleges that the information which she has posted on the World Wide Web "was not targeted to the Commonwealth of Pennsylvania" and that her activity was part of a larger public debate on fluoridation issues. Id. at ¶¶ 8-11; see also Decl. Sherrell 4/2/99 at ¶¶ 9-10.

III. DISCUSSION

Defendant Darlene Sherrell has moved to dismiss Plaintiff's Complaint pursuant to Fed.R.Civ.P. 12(b)(2) by arguing that this court lacks personal jurisdiction. When a motion to dismiss under Fed. R.Civ.P. 12(b)(2) is filed, the burden falls upon the plaintiff to come forward with sufficient facts to establish a prima facie case in favor of personal jurisdiction. Carteret Savings Bank, FA v. Shushan, 954 F.2d 141, 146 (3d Cir.1992). To the extent that a defendant files opposing affidavits or depositions, a plaintiff may not rest on mere allegations in the complaint but must support such jurisdictional allegations with appropriate affidavits or other evidence. See Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 66-67 n. 9 (3d Cir.1984). Any conflict of facts between the plaintiff and defendant are to be resolved in favor of the plaintiff. TJS Brokerage & Co., Inc. v. Mahoney, 940

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F.Supp. 784, 787 (E.D.Pa.1996); Di Mark Mktg., Inc. v. Louisiana Health Serv. & Indemnity Co., 913 F.Supp. 402, 405 (E.D.Pa.1996).

The applicable law has been stated many times. Pursuant to Fed.R.Civ.P. 4(e), federal courts are authorized to exercise personal jurisdiction over a nonresident to the extent permitted by law of the state where the action is brought. Provident Nat'l Bank v. California Fed. Sav. & Loan Ass'n, 819 F.2d 434, 436 (3d Cir. 1987). Federal courts follow a two-step analysis to determine if personal jurisdiction is proper: (1) if jurisdiction is proper under the forum's long-arm statute; and (2) the exercise of personal jurisdiction over the defendant comports with due process under the U.S. Constitution.

Accordingly, we look to the Pennsylvania Long-Arm Statute, 42 Pa.C.S.A. § 5322, to determine whether facts or circumstances exist to require the defendants to answer in this forum. Section 5322(a)(4) states that the long-arm statute extends to a person who causes "harm or tortious injury by an act or omission in this Commonwealth." It also states that personal jurisdiction "shall extend to all 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, the two-step inquiry collapses into one coextensive with the due process clause of the United States Constitution because "[t]he Pennsylvania statute permits the courts of that state to exercise personal jurisdiction over nonresident defendants to the constitutional limits of the due process clause of the fourteenth amendment." See, e.g., Mellon Bank (East) PSFS, Nat'l Ass'n v. Farino, 960 F.2d 1217, 1221 (3d Cir.1992); Empire Abrasive Equipment v. H.H. Watson, Inc., 567 F.2d 554, 556 n. 1 (3d Cir.1977).

General jurisdiction permits a court to exercise personal jurisdiction over a nonresident defendant when "that party can be called to answer any claim against her, regardless of whether the subject matter of the cause of action has any connection to the forum." Mellon Bank, 960 F.2d at 1221. General jurisdiction can even be exercised over non-forum related activities when the defendant has engaged in "systematic and continuous" activities in the forum state, see Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414-16, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). On the other hand, specific jurisdiction arises when the relationship between "the defendant, the cause of action, and the forum falls within the `minimum contacts' framework first announced in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and later refined by the abundant progeny of that landmark case." Mellon Bank, 960 F.2d at 1221.

We agree with the Defendant that general jurisdiction is clearly inapplicable in this case. General jurisdiction is normally invoked when a defendant has "systematic and continuous" contacts with the forum state, which include participating in a consecutive series of activities from within the forum state. In Helicopteros Nacionales, for example, the Court denied general jurisdiction, finding that the defendant did not have sufficient "systematic and continuous" contact with the forum state, although it had purchased millions of dollars worth of products, negotiated a...