NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 13

- 3491

_____________ MARK J. CERCIELLO, M.D., Appellant

v. S. TERRY CANALE, M.D.

_______________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 12

- cv - 0 6933) District Judge: Hon. Joel H. Slomsky

_______________ Submitted Under Third Circuit LAR 34.1(a)

April 8, 2014 Before: AMBRO, JORDAN and ROTH, Circuit Judg es .

(Filed : April 23, 2014 )

_______________ OPINION OF THE COURT

_______________ JORDAN, Circuit Judge

. Dr. Mark J. Cerciello appeals an order of the United States District Court for the Eastern District of Pennsylvania dismissing his lawsuit against Dr. S. Terry Canale for lack of personal jurisdiction. For the reasons that follow, we will affirm.2

I. B ackground 1
A. Factual Background
Cerciello is a board

- certified orthopedic surgeon, a member of the American
Col lege of Forensic Examiners, a Certified Forensic Physician , and, until his suspension on September 24, 2011, a Fellow of the American Academy of Orthopaedic Surgeons and the American Association of Orthopaedic Surgeons (together, “AAOS”) 2

. Since 1969, Cerciello has maintained a n ortho pedic clinical practice in Allentown, Pennsylvania. In addition, prior to his suspension from AAOS, Cerciello “sporadically engaged in providing forensic orthopedic consulting opinions in malpractice” c ases and
had testified as an expert witness. (App. a t 24 (Complaint) .) O ne s uch opinion is at the

root of this case.
After providing an expert witness report in a malpractice suit agains t a fellow orthopedic surgeon, Cerc iello received a letter from AAOS‟s General Counsel n otifying
him that the doctor wh o m he had testified against h ad filed a formal grievance requesting

1 We accept Cerciello‟s allegations as true and construe disputed facts in his favor for the purposes of this a ppea l

. IMO Indus., Inc. v. Kiekert AG , 155 F.3d 254, 257 (3d Cir. 1998) (citing Carteret Sav. Bank, FA v. Shushan, 954 F.2d 141, 142 (3d Cir.1992)). Still, Cerciello “bears the burden to prove, by a preponderance of the evidence,” that personal jurisdicti on is proper . Carteret Sav. Bank , 954 F.2d at 146. To meet that burden, he must “establish[] jurisdictional facts through sworn affidavits or other competent evidence .” Miller Yacht Sales, Inc. v. Smith , 384 F.3d 93, 101 n.6 (3d Cir. 2004) . In other wor ds, “bare pleadings alone ” are insufficient to withstand a motion to dismiss for lack of personal jurisdiction. Id

. In addition, because we write solely for the benefit of the parties, we recite only the facts essential to our disposition.

2 The parti es treat those organizations as fun ctionally the same and so do we. Similarly, the parties treat AAOS as a corporation, and we therefore do so as well.3

that the Committee on Professionalism of AAOS review whether Cerciello had violated the organization‟s Standards of Professionalism in Orthopaedic Expert Witness Testimony. Following an i nvestigatio n

– in which Cerciello failed to appear or defe nd
his actions because he believed the g rievance to be “patently frivolous ” (App. at 27 (Complaint) )

–AAOS‟s Board of Directors voted to suspend him from membership for a period of two years. That suspension was su bsequently published in a disciplinary notice
in the December 2011 edition of the monthly magazine AAOS Now , which is mailed and emailed to AAOS‟s 27,000 members nationwide , including many practicing orthopedic surgeons in Pennsylvania, as well as being available on AAOS‟s public w ebsite

. Both
the decision to publish the suspension and the posting about it online occurred in Illinois, where AAOS is headquartered.
Canale has served as AAOS Now ‟s Editor

- in

- Chief since 2007, and he confirm ed in his deposition that , in that capacity , he “authorized” the publication of Cerciello‟s suspension , as he does all articles that appear in the newsletter

. In his Answering Brief, Canale maintains that publication of the suspension was “consistent with [AAOS‟s] Grievance Procedures and Bylaws,” which Cerciello does not refute

. (Appellee‟s Br. at 7.) Cerciello also does not refute that the article announcing the suspension was prepared by AAOS‟s Office of General Counsel and that Canale had no knowledg e of the suspension itself until the announcement was sent to him for editing

.4

Though he is Editor

- in

- Chief of the organization‟s publication , Canale is not a

current corporate officer or director of AAOS

. 3 As far as the record shows, h is editorial

res ponsibility is to “review all the material that goes into the publication” of AAOS Now for grammar and typographical errors , for which he receives an annual salary. (App. at 58 (Canale‟s Deposition) .) Canale also practices as an orthopedic surgeon in Mem phis,
Tennessee , where he lives

. In 2012, after Cerciello‟s suspension had already been published in AAOS Now , Canale visited Philadelphia for a meeting of AAOS

. Though Canale had his medical training in Philadelphia several decades ago, he has return ed since only twice: once “five or six years ago, and then about 15 years ago,” when he was invited to speak at Jefferson Hospital as an honored guest. 4 ( App. at 65 (Canale‟s Deposition).)
B. Procedural History Cerciello brought suit against Canale i n Pennsylvania‟s Court of Common Pleas , alleging tortious interference with contractual relations, commercial disparagement, defamation, and false light invasion of privacy. 5 Canale removed the case to the District
Court and thereafter filed a Motion to D ismiss on multiple grounds, including lack of

3 In the past, Canale has served in various positions as an officer of AAOS. 4 Canale lived in Philad elphia during his residen cy at Jefferson Medical College. He moved to Tennessee upon graduation and has lived there for the past forty years.

5 Cerciello did not sue AAOS but brought this suit against Canale after AAOS sought a declaratory judgment a gainst Cerciello in federal district court in Illinois in a case involving essentially the same dispute. Am. Acad. of Orthopaedic Surgeons v. Cerciello , No. 12 C 3863, 2013 WL 1679396 , at *1 (N.D. Ill. Apr. 16, 2013) . That case has since been transferred to the Eastern District of Pennsylvania. Id . at *3.5

personal jurisdiction

. The District Court granted the motion, holding that there was no
basis to exercis e personal jurisdiction over Canale

. This timely appeal followed.
II. Discussion 6 Cerciello dispute s the District Court‟s dismissal of his suit. His arguments seem to

ass um e that Canale acted as a corporate officer of AAOS or, in the alternative, that Canale‟s contacts with Pennsylvania were sufficient in an individual capacity to support jurisdiction

. We cannot accept those assumptions.
A f ederal district court may assert personal jurisdiction over a nonresident t o the

extent authorized by the laws of the state in which it sits. Fed. R. Civ. P. 4(e); see also Pennzoil Prod. Co. v. Colelli & Assocs., Inc., 149 F.3d 197, 200 (3d Cir. 1998)

. When a challenge to personal jurisdiction is raised , a court undertake s a two

- part inquiry , asking (1) whether a plaintiff has produce d sufficient facts to show that there is a statutory basis for such jurisdiction under the laws of the forum stat e ; and (2) whether the nonresident
has sufficient “ minimum contacts ” with the state to satisfy the strictures of constitutional due process. See Eurofins Pharma U

. S

. Holdings v. BioAlliance Pharma SA , 623 F.3d 147, 155 (3d Cir. 2010)

.

6 The District Court had subject matter jurisdiction under 28 U.S.C. § 1332. We have jurisdiction over Cerciello ‟s appeal pursuant to 28 U.S.C. § 1291. “ Whether personal jurisdiction may be exercise d over an out

- of

- state defendant is a question of law.” Metcalfe v. Renaissance Marine, Inc. , 566 F.3d 324, 329 (3d Cir. 2009) (quoting Mellon Bank (East) PSFS, N.A. v. Di Veronica Bros., Inc., 983 F.2d 551, 554 (3d Cir. 1993) ). We therefore review de no vo the District Court‟s determination that it lacked personal ju risdiction. Id

.6

Section 532 2(a) of Pennsylvania ‟s long

- arm s tatute authorizes courts of the
Commonwealth to exercise specific jurisdiction when, in relevant part, a defendant is: 1) Transacting any business in this Commonwealth.

... (3) Causing harm or tortious injury by an act or omissi on in this Commonwealth. (4) Causing harm or tortious injury in this Commonwealth by an act or omission outside this Commonwealth.

... 42 Pa. Cons. Stat. § 5322(a)

. Separately, § 5322(b) operates as a catch

- all, allowing courts to assert jurisdiction “ to the fullest extent allowed under the Constitution of the
United States ,” and noting that even “ the most minimum contact ” can confer jurisdiction.
Id. § 5322(b)

. In other words, under §5322(b), courts “ need only decide whether holding ... [the nonresiden t defendant] subject to a suit in Pennsylvania woul d be a violation of due process, ” bypassing a separate statutory analysis that would be required under §5322(a)

. Scoggins v. Scoggins , 555 A.2d 1314, 1319 ( Pa. Super. Ct. 1989) (alterations in original) ( internal quotation marks omitted)). When there is an assertion of specific jurisdiction, as in this case, 7 the constitutional inquiry requires a court to consider , first,

7 A court may sometimes assert “general” personal jurisdiction over a defendant based on his overall contacts with a state . G eneral jurisdiction is proper only if the defe ndant has maintained “continuous and systematic” contacts with the forum state. Helicopteros Nacionales de Columbia, S.A. v. Hall . 466 U.S. 408, 416 (1984). This involves showing “significantly more than mere minimum contacts,” Provident Nat’l Bank v. Ca l. Fed. Sav. & Loan Ass’n , 819 F.2d 434, 437 (3d Cir. 1987) (citations omitted), and the supporting facts underlying jurisdiction must be “extensive and persuasive,” Reliance Steel Prods. v. Watson, Ess, Marshall , 675 F.2d 587, 589 (3d Cir. 1982). Cerciel lo does not contend that Canale has sufficient contacts to warrant general jurisdiction over him in Pennsylvania, and rightly so. General jurisdiction is not appropriate here since Canale‟s contacts are neither “continuous and systematic” nor “extensive a nd persuasive.” A s the District Court correctly noted, the only question is7

whether the defendant “purposefully directed his activities” at the forum, Burger K ing Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (internal quotation marks omitted) ; second, whether the litigation “arise [s] out of or relate [s] to” those activities, Helicopteros Nacionales de Colombia, S.A. v. Hall , 466 U.S. 408, 414 (1984) ; and third, if the first two requirements are met, whether the exercise of jurisdiction otherwise “comport[s] with
„fa ir play and substantial justice,‟ ” Burger King , 471 U.S. at 476 (quoting I nt ’ l Shoe Co. v. Washington, 326 U.S. 310, 320 (1945)). Unfortunately, th e precedents associated with the exercise of specific jurisdiction

are not consistent when it comes to jurisdiction over people sued in their individual capacities for wrong s associated with corporate acts

. On the one hand , so me decisions appear to have a dhere d to a bright

- line rule that a defendant ‟s acts must be undertaken in

an individual capacity, rather than a corporate capacity, to warrant the exercise of jurisdiction. See J.C. Snavely & Sons, Inc. v. Springland Assocs

. , Inc. , 600 A.2d 972, 974 ( Pa. Super. Ct. 1991) ( “Mr. Knapp‟ s contacts as an agent of Springland Associates are not attributable to him for purposes of establishing specific jurisdiction .”). T his so - called “corporate shield ” doctrine 8 sometimes protects defendants who are thus sued in their individual capacities for what are corporate acts

. Maleski by Taylor v. DP Realty Trust ,

whether Canale‟s contacts with Pennsylvania were sufficient to support specific jurisdiction.

8 Other courts have used the term “fiduciary shield doctrine.” See, e.g. , Newsom e v. Gallacher , 722 F.3d 1257 , 1278

- 79 (10th Cir. 2013); Grober v. Mako Products, Inc. , 686 F.3d 1335 , 1345 (Fed. Cir. 2012), reh‟g denied (Sept. 14, 2012); Snowstorm Acquisition Corp. v. Tecumseh Products Co. , 739 F. Supp. 2d 686 , 700 n.8 (D. Del. 2010).8

653 A.2d 54, 62 (Pa. Commw. Ct. 1994)

. But other Commonwealth court s have taken a

more flexible approach , 9 looking to a handful of factors to determine whethe r jurisdiction is appropriate, id. at 63

. One particularly significant factor i s the status of the employee
as an officer or director of the corporation in question. Cf. i d

. (“ To determine whether there is jurisdiction over a [nonresident] corporate offi cer or director

... , it is necessary
under this case

- by

- case approach to exam ine factors such as the officer‟ s role in the corporate struct ure, the quality of the officer‟ s forum contacts and the e xtent and nature of the officer‟ s participation in the alle ged tortious conduct .”). While Cerciello makes arguments justifying specific jurisdiction over Canale
based on the offending AAOS publication , none succeed for the simple reason that
Canale is not a n officer or director of AAOS and did not take any action s in an individual capacity to warrant jurisdiction

. T he complaint is about AAOS producing a publication,
but t here is simp ly no evidence that Canale had any corporate authority at AAOS when
that publication occurred. 10 True, he was “Editor

- in

- Chief,” but we cannot assume that

meant he had any corporate control. We cannot even be sure what th at meant about
editorial content

. The disciplinary notices, after all, were drafted by the AAOS General

9 Commonwealth courts often cite federal district court cases on this subject, but those too are not consistent. Compare Donner v. Tams

- Witmark Music Library, Inc. , 480 F. Supp. 1229, 1234 (E.D. Pa. 1979) (“It would be anomalous

... to permit a corporate officer to shield himself from jurisdiction by means of the corporate entity, when he could not interpose that same shield against substantive liability. ” ), with Si mkins Corp. v. Gourmet Rest. Int’ l , 601 F. Supp. 1336, 1345 (E.D. Pa. 1985) (“[A] corporate officer or director‟s actions taken in his corporate capacity are ... insufficient to bring him personally within the jurisdiction of this court. ”).

10 We are not suggesting that titles are dispositive. De facto control would of course be relevant, even w ithout official office, but t here is no evidence of that here.9

Counsel and included in AAOS Now only in accord ance with an e stablished AAOS protocol.
Cerciello ‟s argument that editors can be held liable for printing defamation misses the point

. The question is not whether a court c ould properly assert personal jurisdiction

over some other editor of some other publication

. The question is about this editor and this publication. It is fact specific. Though not cited by either party in their briefs, the Supreme Court‟s decision in Calder v. Jones , 465 U.S. 783 (1984), held that a n editor
who wa s also the corporation‟s pr es ident wa s subject to personal jurisdiction in a state
other than his domicile because a person with that level of authority “o versee[s] just
abou t every function of the [publication] , ” including the sending of magazines to other

states. Id . at 786 (intern al quotation marks omitted). The same cannot be said of Canale
in this case . While he may review what is printed in AAOS‟s magazine , the record here

– at least as presented to us

– does not show his work to be similar to that of a “president” or any othe r corporate officer or fiduciary

. M oreover, Cerciello has produced no evidence to indicate that Canale took any actions in an individual capacity , either in or related to Pennsylvania , sufficient to give rise to the claims in the C omplaint. Canale‟s

trav eling to Philadelphia on two occasions in the last fifteen years for events unrelated to Cerciello‟s claim cannot serve as a jurisdiction al hook for this case
. While , through the catch

- all provision in §5322(b), Pennsylvania allows even “ the
most minimu m contact ” to confer jurisdiction, that jurisdiction is nonetheless bound by
the limits of the Constitution

. As the District Court rightly indicated , Cerciello has not demonstrated that Canale “purposefully directed” his activities at Pennsylvania, and th ere10

is thus a failure to meet the constitutional prerequisites for the exercise of personal jurisdiction. See Burger King Corp, 471 U.S. at 472; see also Remick v. Manfredy , 238 F.3d 248, 258 (3d Cir. 2001) (“We stated that „ [s]imply asserting that the de fendant knew that the plaintiff‟ s principal place of business was located in the forum would be insufficient in itself.... The defendant must manifest behavior intentionally targeted at and
focused on the forum for Calder to be satisfied.‟”).
III. Conclu sion For the foregoing reasons, we will affirm the District Court‟s decision to dismiss Cerciello‟s claims for lack of personal jurisdiction.