PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 18-3758

______________

LAUREL GARDENS, LLC; AMERICAN WINTER SERVICES, 

LLC; LAUREL GARDENS HOLDINGS, LLC; LGSM, GP; 

CHARLES P. GAUDIOSO,

Appellants

 

v.

TIMOTHY MCKENNA; MICHAEL MCKENNA; MAT SITE 

MANAGEMENT, LLC; BOBBY AERENSON; GREGORY 

PETTINARO; CHARLES WILKINSON; WILKINSON 

BUILDERS, LLC; TECHNIVATE, INC.; THOMAS DIDONATO; 

KEVIN EAISE; EAISE DESIGN & LANDSCAPING, LLC; 

EAISE SNOW SERVICES, LLC; HAINES & KIBBLEHOUSE, 

INC.; HANK JULICHER; MARGIT JULICHER; 

CHRISTOPHER W. WRIGHT; LONGVIEW MANAGEMENT, 

LLC; MATTHEW SIBLEY; M&M LANDSCAPING, LLC; 

ALAN PERRY; MARY TRESIZE; FRANK ALCARAZ; STRIVE 

FORCE, LLC; MJL ENTERPRISES; JOHN HYNANSKI; 

NORMAN AERENSON; ISKEN ENTERPRISES, LLC; 

FRONTIER MULCH, LLC; LONGVIEW MANAGEMENT, LP; 

DON ISKEN; PAUL ISKEN; SAUL EWING, LLP; DAVID 

FALCONE; JOHN SNYDER

______________
2

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civ. No. 5-17-cv-00570)

Honorable Jeffrey L. Schmehl, District Judge

______________

Submitted under Third Circuit L.A.R. 34.1(a)

October 22, 2019

BEFORE: GREENAWAY, JR., PORTER, and COWEN, Circuit

Judges

(Filed: January 14, 2020)

______________

Kevin F. Berry

Tamara S. Grimm

O’Hagan Meyer

100 North 18th Street

Two Logan Square, Suite 700

Philadelphia, PA 19103

 Attorneys for Appellants

Ryan M. Ernst

George Pazuniak

Sean T. O’Kelly

O’Kelly Ernst & Joyce

901 North Market Street

Suite 1000

Wilmington, DE 19801

 Attorneys for Appellees
3

______________

OPINION OF THE COURT

______________

COWEN, Circuit Judge.

Plaintiffs, Laurel Gardens, LLC (“LG”), American 

Winter Services, LLC (“AWS”), Laurel Garden Holdings, LLC

(“LGH”), LGSM, GP (“LGSM”), and Charles P. Gaudioso,

appeal from the order of the United States District Court for the 

Eastern District of Pennsylvania granting the motion for entry of 

final judgment pursuant to Federal Rule of Civil Procedure 

54(b) filed by Defendants, Don Isken, Paul Isken, and Isken 

Enterprises, LLC (“IE”) (“the Isken Defendants”). Specifically,

the District Court designated its prior order—granting the Isken 

Defendants’ motion to dismiss for lack of personal jurisdiction 

under Federal Rule of Civil Procedure 12(b)(2) while denying 

all but one of the motions to dismiss filed by the other 

defendants—as its final judgment as to the Isken Defendants. 

Plaintiffs argue that the District Court erred by applying the 

traditional requirementsfor personal jurisdiction as opposed to a

specific provision of the Racketeer Influenced and Corrupt 

Organizations Act (“RICO”) authorizing the nation-wide 

exercise of personal jurisdiction in certain circumstances. 

Initially, we conclude that the issue of personal 

jurisdiction is properly before us and accordingly limit our 

ruling to this threshold jurisdictional issue. We agree with 

Plaintiffs that 18 U.S.C. § 1965(b) (and not 18 U.S.C. §1965(d))
4

governs the exercise of personal jurisdiction in this case and that 

they satisfy the statutory (and constitutional) requirements for

the District Court to exercise such jurisdiction over the Isken 

Defendants. In turn, Plaintiffs’ state law claims fall under the 

doctrine of pendent personal jurisdiction. Accordingly, we will 

vacate the order entered by the District Court disposing of the

parties’ dismissal motions to the extent that it granted the Isken

Defendants’ motion to dismiss for lack of personal jurisdiction

under Rule 12(b)(2) as well as the District Court’s Rule 54(b)

order insofar as it designated this prior order as the final

judgment as to the Isken Defendants.

I.

Naming a total of thirty-three defendants, Plaintiffs 

alleged in their lengthy amended complaint that “[t]he primary 

cause of this action is a widespread criminal enterprise engaged 

in a pattern of racketeering activity across State lines, and a 

conspiracy to engage in racketeering activity involving 

numerous RICO predicate acts during the past ten (10) calendar 

years.” (JA70.) Plaintiffs alleged predicate acts of bribery, 

extortionate credit transactions, mail fraud, wire fraud, witness 

tampering, and retaliation. They then set forth three separate

RICO claims, i.e., conduct and participation in an enterprise 

through a pattern of racketeering under 18 U.S.C. § 1962(c), 

acquisition and maintenance of an interest in and control of an 

enterprise engaged in a pattern of racketeering activity pursuant 

to 18 U.S.C. § 1972(b), and conspiracy to engage in a pattern of 

racketeering activity in violation of 18 U.S.C. § 1962(d). 

Finally, the pleading included claims against all defendants 

under Pennsylvania law for aiding and abetting the breach of 

fiduciary duty, civil conspiracy, fraud, conversion, negligent 
5

misrepresentation, and tortious interference with contract and 

prospective contractual arrangements (as well as a claim for 

breach of fiduciary duty against Defendants Timothy McKenna 

and Michael McKenna). 

According to Plaintiffs,1the enterprise’s primary

objective has been to inflict severe economic hardship upon the

Plaintiffs with the intent to impair, obstruct, prevent, and 

discourage them from continuing to work in the field of 

landscaping and snow removal services. “[A]t the center of 

[the] criminal enterprise” are Defendants Timothy McKenna and 

Michael McKenna. (JA77.) Timothy McKenna (a resident of 

Delaware who maintains a business address in Delaware) was 

the managing member of LG and AWS until May 2012 (when 

he was replaced by Gaudioso) and remained a consultant for 

Plaintiffs until his termination for cause in June 2014. Likewise, 

Michael McKenna (Timothy McKenna’s son and a Pennsylvania 

resident who maintains a Delaware business address) was the 

general manager for LG and AWS until he resigned on 

November 9, 2014. “Timothy McKenna, Michael McKenna, 

Catherine McKenna (Timothy’s wife), and [Defendant] MAT 

Site Management, LLC (the McKennas’ business) sought to 

steal the Plaintiffs’ customers and continue in the business of 

servicing the commercial landscaping and snow removal needs 

 

1 The amended complaint alleged that LG and AWS are

Pennsylvania limited liability companies while LGSM is a 

Pennsylvania limited liability partnership. The three entities 

maintain their principal places of business, owned property, and 

conducted business in Pennsylvania. LGH is a Delaware limited 

liability company with its principal place of business located in 

Pennsylvania. 
6

for those customers.” (Appellants’ Brief at 5-6 (citing JA70).) 

It is undisputed that brothers Don Isken and Paul Isken

are residents of the State of Delaware and that IE is a Delaware 

limited liability company with its principal place of business 

located in Newark, Delaware.

2 The first amended complaint

included the following allegations against the Isken Defendants:

Isken and Isken Enterprises

134. DON ISKEN and PAUL ISKEN 

have been associated with TIMOTHY 

McKENNA for several years. They own several 

local hotels, specifically the Homewood Suites, 

Holiday Inn Express, and Comfort Inn in 

Wilmington, DE. 

135. TIMOTHY McKENNA conspired

with DON ISKEN and PAUL ISKEN to steal 

Company assets and labor by delivering loads of 

salt and calcium at no charge to the ISKEN’ [sic]

hotels in return for some debt relief to TIMOTHY 

McKENNA. This was late in the 2014 season 

when salt and melt products were generally 

unavailable at any price and the Company’s 

inventory was stretched. TIMOTHY McKENNA 

and MICHAEL McKENNA also directed snow 

 

2 The amended complaint alleged that IE “is a limited 

partnership under the laws of the Commonwealth of 

Pennsylvania” maintaining a business address in Newark, 

Delaware. (JA74.)
7

removal services to the hotels and DON ISKEN’

[sic] home with no intention of billing DON 

ISKEN. When the Company learned of this, the 

Company sent a bill and attempted to collect 

payment from DON ISKEN and PAUL ISKEN. 

DON ISKEN and PAUL ISKEN refused to pay

advising GAUDIOSO, ‘Our deal was with Tim 

McKenna”. When GAUDIOSO pressed as to 

what that meant, neither DON ISKEN nor PAUL 

ISKEN would explain.

136. Having loaned TIMOTHY 

McKENNA a significant amount of money 

(upwards of $200,000) and TIMOTHY 

McKENNA being unable to pay it back, DON 

ISKEN has initiated several Sherriff Goods and 

Chattel sales on TIMOTHY McKENNA’s home. 

The email trail between TIMOTHY McKENNA 

and DON ISKEN goes back years and shows 

TIMOTHY McKENNA promising to pay DON 

ISKEN and always reneging on payment. 

Ultimately, DON ISKEN initiated the Sherriff 

sale and then TIMOTHY McKENNA somehow 

came up with an amount to get DON ISKEN off 

his back for a short time. Then the process started 

again.

137. Counsel for the Company, 

SNYDER and FALCONE of SAUL EWING 

were advising TIMOTHY McKENNA on how to 

handle this situation with ISKEN.
8

(JA95-JA96.)3 Plaintiffs attached several exhibits to their 

pleading, including an exhibit consisting of documents 

purportedly relating to the Isken Defendants. These documents 

are: (1) an April 28, 2014 e-mail from Don Isken to Timothy 

McKenna indicating that Timothy McKenna intended to have 

his partner in the salt business make a wire transfer in the 

amount of $103,750 “to each Paul and I” within the next two 

days, forwarding wiring instructions from Paul Isken, and 

expressing frustration about the whole process (stating that the 

amount would only increase and specifically pointing to earlier 

e-mails in which Timothy McKenna had assured Don Isken that 

payment was forthcoming) (JA293); (2) a May 2, 2014 e-mail 

from Don Isken to Timothy McKenna stating that he received a 

payment of $20,000 instead of the $207,000 he had long 

expected and Timothy McKenna had absolutely guaranteed he 

would receive, refusing to accept payment, and indicating that 

he had no intention to halt the judicial actions (and in particular 

that he intended to push for a judicial sale of Timothy 

McKenna’s personal belongings at the earliest opportunity); (3) 

an April 15, 2014 invoice from AWS billing Homewood Suites 

$12,874 for services related to snow removal, including $10,000 

for calcium; and (4) a June 5, 2014 e-mail from Don Isken to 

Timothy McKenna replying to an e-mail forwarded by Timothy 

McKenna from Defendant Christopher Wright, inquiring why 

 

3 The amended complaint referred to Plaintiffs as “the 

Company.” Defendant Saul Ewing, LP “is a Pennsylvania 

limited partnership engaged in the practice of law with a 

principal place of business” located in Philadelphia, 

Pennsylvania, while Defendants David Falcone and John Snyder 

are engaged in the practice of law at the law firm’s office.

(JA76.) 
9

the Wright e-mail message4 was sent to him and “[w]hat am I 

supposed to do with this information and documentation—

deposit it in the bank” (JA296). 

Fifteen separate motions to dismiss were filed by the 

respective defendants. In fact, all but one of the defendants 

(Mary Tresize) moved to dismiss. On May 15, 2017, the Isken 

Defendants moved to dismiss with prejudice pursuant to Rule

12(b)(2) and Federal Rule of Civil Procedure 12(b)(6). In their 

memorandum of law, they argued that the District Court must 

dismiss this action pursuant to Rule 12(b)(2) because it lacks 

personal jurisdiction over Paul Isken and IE. Under 

Pennsylvania’s long-arm statute providing for personal 

jurisdiction over non-resident defendants to the fullest extent 

allowed under the United States Constitution, see 42 Pa. Cons. 

Stat. Ann. § 5322, the amended complaint purportedly fails to 

allege either general or specific jurisdiction over Paul Isken and 

IE. The Isken Defendants further sought dismissal under Rule 

12(b)(6) on the grounds that the pleading does not assert a claim 

against the Isken Defendants upon which relief may be granted, 

the state law claims are outside the statute of limitations, and the 

claims are alleged against improper parties. On June 16, 2017, 

Plaintiffs filed a lengthy omnibus response in opposition to 

several motions to dismiss, including the Isken Defendants’ own

motion. In their June 23, 2017 reply brief, the Isken Defendants 

acknowledged that the Plaintiffs’ opposition had responded to 

 

4 The Wright e-mail was entitled “MJL Salt Deal 

Summary” and asked Timothy McKenna not to share the 

attached documents with anyone because the GSC cost per ton 

and some of the other small variables had yet to be adjusted. 

(JA296.) 
10

two of their grounds for dismissal (failure to state a claim and 

statute of limitations). They then addressed the merits of these 

two grounds. However, the Isken Defendants also pointed out

that “Plaintiffs do not respond to the Isken Defendants’ 

arguments for dismissal based on the lack of personal 

jurisdiction and the naming of an improper party.” (E.D. Pa. 

Docket Entry #97 at 2.) “Pursuant to Local Rule 7.1(c), these 

arguments are unopposed, and the [first amended complaint] 

should be dismissed by the Court on that basis.” (Id. (citing 

Dennis v. DeJong, 867 F. Supp. 2d 588, 622 (E.D. Pa. 2011); 

Toth v. Bristol Twp., 215 F. Supp. 2d 595, 598 (E.D. Pa. 2002); 

Smith v. Nat’l Flood Ins. Program of FEMA, 156 F Supp. 2d 

520, 525 (E.D. Pa. 2001)).) 

On July 14, 2017, Plaintiffs submitted a motion for leave 

to file a sur-reply in further opposition to the Isken Defendants’ 

motion to dismiss. Noting that most defendants had filed nearly 

identical motions to dismiss, “Plaintiffs do not intend to waste 

this Court’s time by repeating its own arguments in a surreply, 

but does seek leave to briefly address the Isken Defendants’ 

argument that this Court lacks personal jurisdiction over 

Defendants Paul Isken and [IE].” (E.D. Pa. Docket Entry #108 

at 2.) “Plaintiffs respectfully request that this Court exercise its 

discretion and grant leave to file a surreply to clarify the record 

and respond to Defendants’ jurisdictional arguments.” (Id.)

The District Court granted Plaintiffs’ motion for leave on 

July 19, 2017, and the sur-reply was filed on the same day. In 

addition to responding to the Isken Defendants’ argument that 

the first amended complaint should be dismissed because of 

Plaintiffs failure to respond on the issue of personal jurisdiction, 

Plaintiffs argued that the District Court possesses both general 
11

and specific jurisdiction over Paul Isken and IE (and also

asserted that the affidavits submitted by Paul Isken and Don

Isken falsely state that IE has never owned or held any interest 

in any real property in Pennsylvania). They also argued that the 

District Court has personal jurisdiction pursuant to the RICO 

statute as well as the doctrine of pendent personal jurisdiction. 

On March 14, 2018, the District Court disposed of the 

various dismissal motions. All of them were denied with two 

exceptions, namely, the respective motions to dismiss filed by 

Defendant MJL Enterprises (“MJL”) and the Isken Defendants. 

The District Court expressed concern that the lengthy pleading

violates the requirement to set forth “a short and plain statement 

of the claim,” Fed. R. Civ. P. 8(a), noting that its “302 pages 

(337 paragraphs with attached exhibits) include[ed] a mass of 

details which may be relevant and appropriate at summary 

judgment or trial, but are clearly surplusage in stating a claim at

this stage” (JA18). However, it found “Plaintiffs’ claims 

survive a Rule 12(b)(6) challenge.” (Id.) “Defendant MJL 

moves to dismiss arguing venue is improper here because the 

terms of the settlement agreement between MJL and Laurel 

Gardens expressly provides each of the Parties involved in the 

agreement (MJL and Laurel Gardens) consents to jurisdiction in 

the Eastern District of Virginia.” (Id. (citing E.D. Pa. Docket 

Entry #60).) While concluding that venue is proper under 28

U.S.C. § 1391, the District Court transferred the claims against 

MJL to the United States District Court for the Eastern District 

of Virginia pursuant to 28 U.S.C. § 1404. Finally, the District 

Court agreed with the Isken Defendants that it lacks both 

specific and general jurisdiction over them. It looked to 

Pennsylvania’s long-arm statute and the Fourteenth 

Amendment’s contacts test. “Applying the above principles, 
12

this Court concludes the Iskens lack the requisite ‘minimum 

contacts’ with Pennsylvania to the exercise of jurisdiction over 

them. Walden v. Fiore, 134 S. Ct. 1115, 1124 (2014). 

Therefore, this Court lacks specific jurisdiction.” (JA22.) The 

District Court also found that the Isken Defendants also do not 

possess the continuous and systematic contacts with the forum 

state required for the exercise of general jurisdiction.

“Accordingly, the Iskens’ Motion to Dismiss for lack of

personal jurisdiction under Rule 12(b)(2) is granted. The Iskens

are dismissed from this matter.” (JA23.)

On May 17, 2018, the Isken Defendants moved for entry 

of final judgment pursuant to Rule 54(b). The District Court 

granted this motion on November 20, 2018, determining that 

“the Order is a final judgment as to Defendants Don Isken, Paul 

Isken, and Isken Enterprises, LLC for the purposes of Federal 

Rule of Civil Procedure 54(b), and no just cause exists for 

delaying entry of final judgment in this matter as to Defendants 

Don Isken, Paul Isken, and Isken Enterprises, LLC.” (JA15.)

II.

In addition to some disagreement as to what issues are 

properly before us, this appeal implicates a question of first 

impression for this Court, namely, whether 18 U.S.C. § 1965(b) 

or 18 U.S.C. §1965(d) governs the exercise of personal

jurisdiction in this case.

5

 Federal Rule of Civil Procedure 4(k) 

 

5 The District Court had subject matter jurisdiction over 

the RICO claims pursuant to 28 U.S.C. § 1331 and over the state 

law claims under 28 U.S.C. § 1367. We have appellate 

jurisdiction under 28 U.S.C. § 1291.
13

sets forth the “Territorial Limits of Effective Service” and 

provides that “(1) [i]n general. Serving a summons or filing a 

waiver of service establishes personal jurisdiction over a 

defendant: (A) who is subject to the jurisdiction of a court of 

general jurisdiction in the state where the district is located.” 

This subsection implicates the traditional contacts-based 

approach to personal jurisdiction, and it was this traditional 

approach that the District Court applied. However, Rule 

4(k)(1)(C) includes an alternative: serving a summons or filing

a waiver of service establishes personal jurisdiction over a 

defendant “when authorized by a federal statute.” RICO 

includes a specific provision entitled “Venue and Process,” 

which states:

(a) Any civil action or proceeding under this 

chapter against any person may be instituted in

the district court of the United States for any 

district in which such person resides, is found, has 

 

Whether personal jurisdiction may be exercised over an 

out-of-state defendant poses a question of law triggering a 

plenary standard of review. See, e.g., Metcalfe v. Renaissance 

Marine, Inc., 566 F.3d 324, 329 (3d Cir. 2009). “Although the 

plaintiff bears the burden of demonstrating the facts that 

establish personal jurisdiction, see Mellon Bank (East) PSFS 

Nat’l Ass’n v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992), in 

reviewing a motion to dismiss under Rule 12(b)(2), we ‘must 

accept all of the plaintiff’s allegations as true and construe 

disputed facts in favor of the plaintiff.’ Carteret Sav. Bank, FA 

v. Shushan, 954 F.2d 141, 142 n.1 (3d Cir. 1992).” Pinker v. 

Roche Holdings Ltd., 292 F.3d 361, 368 (3d Cir. 2002). 
14

an agent, or transacts his affairs.

(b) In any action under section 1964 of this 

chapter in any district court of the United States in 

which it is shown that the ends of justice require 

that other parties residing in any other district be 

brought before the court, the court may cause 

such parties to be summoned, and process for that 

purpose may be served in any judicial district of 

the United States by the marshal thereof.

(c) In any civil or criminal action or proceeding 

instituted by the United States under this chapter 

in the district court of the United States for any 

judicial district, subpenas [sic] issued by such 

court to compel the attendance of witnesses may 

be served in any other judicial district, except that 

in any civil action or proceeding no such 

subpoena [sic] shall be issued for service upon 

any individual who resides in another district at a 

place more than one hundred miles from the place 

at which such court is held without approval 

given by a judge of such court upon a showing of 

good cause.

(d) All other process in any action or proceeding 

under this chapter may be served on any person in 

any judicial district in which such person resides, 

is found, has an agent, or transacts his affairs.

18 U.S.C. § 1965. We conclude that subsection (b) (and not 

subsection (d)) applies here. In turn, Plaintiffs satisfy the 
15

statutory (and constitutional) requirements for the exercise of 

personal jurisdiction over the Isken Defendants. Furthermore, 

Plaintiffs’ state law claims then fall under the doctrine of

pendent personal jurisdiction. 

A. The Issues on Appeal

Initially, the parties disagree over the issue or issues that 

are properly before us on this appeal. On the one hand, the 

Isken Defendants insist that Plaintiffs waived the issue of 

personal jurisdiction under RICO by not raising this statutory

issue before their sur-reply. Instead of responding to Plaintiffs’ 

§ 1965 arguments, the Isken Defendants go on to argue at some 

length that the RICO claims fail as a matter of law and that 

“therefore the District Court has no personal jurisdiction over 

the Isken Defendants.” (Appellees’ Brief at 4 (“Absent the 

RICO claims, subject matter jurisdiction for the district court 

over nonfederal claims is lost – making personal jurisdiction a 

moot question, as under [Plaintiffs’] argument, personal 

jurisdiction only obtains in this case under 18 U.S.C. § 1965.”).) 

They also contend that the state law claims are legally deficient 

and barred by the statute of limitations and that IE is not a 

proper defendant. On the other hand, Plaintiffs contend that this 

Court lacks the jurisdiction to consider the substantive issues 

raised by the Isken Defendants’ appellate brief because they 

were never addressed by the District Court and, in any event, no 

notice of cross-appeal was ever filed. With respect to the merits 

of these substantive issues, Plaintiffs “will simply refer to and 

incorporate by reference their Omnibus Response in the district 

court, which addressed the Isken Defendants’ and many other 

defendants’ substantive arguments” (and they request leave to

file a full brief addressing the substantive issues if the Court 
16

were to entertain them). (Appellants’ Reply Brief at 6 and 8

(citing E.D. Pa. Docket Entry #91).)

We agree with Plaintiffs that the issue of personal

jurisdiction under the RICO provision is properly before us. 

Under the circumstances, we also limit our ruling to this 

threshold jurisdictional issue under Rule 12(b)(2) and therefore

refrain from considering whether Plaintiffs fail to state a claim 

upon which relief can be granted under Rule 12(b)(6).

It is well established that, in the absence of exceptional 

circumstances, this Court will not consider issues raised for the 

first time on appeal. See, e.g., In re Ins. Brokerage Antitrust 

Litig., 579 F.3d 241, 261-62 (3d Cir. 2009). “For an issue to be 

preserved for appeal, a party ‘must unequivocally put its 

position before the trial court at a point and in a manner that 

permits the court to consider its merits.’” Id. at 262 (quoting 

Shell Petroleum, Inc. v. United States, 182 F.3d 212, 218 (3d 

Cir. 1999)).

Plaintiffs did not address the question of personal 

jurisdiction—whether under the traditional contacts test or a 

specific federal statutory provision authorizing the nation-wide 

exercise of personal jurisdiction—until they moved for leave to 

file a sur-reply. However, the District Court granted their

motion and ordered Plaintiffs to file their sur-reply—which they 

did. While the Isken Defendants assert that such filings are 

normally granted only when the preceding reply brief raises new 

matter or arguments and that they were deprived “of opportunity 

to further respond” (Appellees’ Brief at 13), the Isken 

Defendants did not oppose or otherwise object to Plaintiffs’ 

successful motion for leave to file the sur-reply. Given the 
17

months that passed between the authorized filing of the sur-reply 

to the motion to dismiss and the District Court’s disposition of 

the dismissal motion itself, the issue was clearly presented to the 

District Court at a point and in a manner to permit it (and the 

Isken Defendants) to consider its merits. Unfortunately, the 

District Court’s dismissal order did not address the issue of 

personal jurisdiction under the RICO provision. But this 

omission (like the Plaintiffs’ failure to address personal 

jurisdiction in their omnibus response) was evidently nothing 

more than an understandable oversight in a complicated case 

involving more than thirty defendants filing multiple (and oftenoverlapping) motions to dismiss and where the Isken Defendants 

were the only parties to seek dismissal for lack of personal 

jurisdiction. After all, the District Court did not (as the Isken 

Defendants appear to suggest) indicate that it was “dismissing 

the Isken Defendants based on lack of timely opposition to the 

Isken Defendants’ Motion to Dismiss and Local Rule of Civil 

Procedure 7.1(c)”6(id. at 12). On the contrary, the District 

Court considered the Isken Defendants’ arguments about the 

lack of general and specific jurisdiction and determined that they 

do not possess the requisite contacts with the forum state for 

jurisdiction on such grounds. It did so even though the Isken 

Defendants had pointed out in their reply brief that the 

Plaintiffs’ omnibus response did not respond to their arguments

about general and specific jurisdiction and asked the District 

Court to dismiss the first amended complaint as uncontested 

 

6

 Eastern District of Pennsylvania Local Rule 7.1(c) 

states that, “[i]n the absence of timely response, the motion may 

be granted as uncontested except as provided under Fed.R.Civ.P

[sic] 56.”
18

pursuant to Local Rule 7.1(c).7

We likewise limit our ruling to this threshold issue of 

personal jurisdiction. Generally, we may affirm on any ground 

supported by the record, and an appellee may urge affirmance on

such a ground even if the district court overlooked it or it 

involves an attack on the district court’s reasoning. See, e.g., 

TD Bank N.A. v. Hill, 928 F.3d 259, 270 (3d Cir. 2019); EF 

Operating Corp. v. Am. Buildings, 993 F.2d 1046, 1048 (3d Cir. 

1993). However, the District Court granted the Isken 

Defendants’ motion under Rule 12(b)(2) for “lack of personal 

jurisdiction”—and not pursuant to Rule 12(b)(6) for “failure to 

state a claim a claim upon which relief can be granted.” Cf, e.g., 

EF Operating, 993 F.2d at 1048-49 (distinguishing between 

dismissal for lack of personal jurisdiction and grant of summary 

judgment on merits and concluding that, where appellant files 

appeal from summary judgment, appellee must cross-appeal to 

 

7 According to the Isken Defendants, Plaintiffs could 

have addressed the District Court’s dismissal of the Isken 

Defendants on personal jurisdiction grounds by filing a timely 

motion for reconsideration. At least in retrospect, such a motion 

would have been an appropriate and efficient way to emphasize 

to the District Court—and obtain a ruling on—the issue of 

personal jurisdiction under the RICO provision before the case 

went forward against the other defendants (and the order was 

certified as a final judgment under Rule 54(b) as to the Isken 

Defendants). However, the Isken Defendants do not indicate 

that such a motion is required for us to consider the issue of 

personal jurisdiction on appeal. We also note that the Isken 

Defendants did not seek reconsideration of the order granting 

Plaintiffs’ motion for leave to file the sur-reply. 
19

contest denial of motion to dismiss for lack of personal 

jurisdiction). In fact, the District Court denied the various Rule 

12(b)(6) motions to dismiss “referenced in the above Order,”

finding that “Plaintiffs’ claims survive a Rule 12(b)(6) motion.” 

(JA18.) At this stage:

[A]ccepting Plaintiffs’ lengthy allegations as 

true, this Court concludes that Plaintiffs raise a 

plausible right to relief. Whether Plaintiffs have a 

claim for aiding and abetting breach of fiduciary 

duty, civil conspiracy, RICO, fraud, breach of 

fiduciary duty, conversion, negligent

misrepresentation, and tortious interference, is

best decided on a full factual record of a Rule 56 

motion.

(Id.)

8

 We also do not overlook the procedural posture of 

Plaintiffs’ current appeal. The District Court designated its 

interlocutory order as a final judgment as to the Isken 

Defendants pursuant to Rule 54(b). In their successful Rule 

54(b) motion, the Isken Defendants acknowledged that 

“Plaintiffs’ claims against the remaining defendants are 

continuing, with written discovery scheduled to conclude on 

June 1, 2018.” (E.D. Pa. Docket Entry #195-1 at 2 (citing E.D. 

 

8

 Transferring the MJL claims, the District Court

observed that, “[b]ecause MJL and Laurel Gardens agreed to the 

Eastern District of Virginia as their forum, this Court does not 

address the merits of MJL’s motion to dismiss for failure to state 

a claim.” (JA21.) The District Court did not make this sort of 

statement in its discussion of the Isken Defendants’ motion to 

dismiss. 
20

Pa. Docket Entry #158 at ¶ 1) (noting no trial date has been 

set).) They emphasized the fact that they “were the only 

defendants dismissed in the action on the basis of personal 

jurisdiction, and the basis for their dismissal is factually unique 

to them.” (Id. at 5.) Under these circumstances, we limit 

ourselves to this “unique” basis.9 

B. Personal Jurisdiction under the RICO Provision

There is a circuit split regarding which specific 

subsection of the RICO provision governs the exercise of 

personal jurisdiction in this case. Plaintiffs recognize that two 

circuits (the Fourth and the Eleventh Circuits) have looked to § 

1965(d). According to the Eleventh Circuit, “Section 1965(d) of 

the RICO statute provides for service in any judicial district in 

which the defendant is found.” Republic of Panama v. BCCI 

Holdings (Lux.) S.A., 119 F.3d 935, 942 (11th Cir. 1997). 

“When a federal statute provides for nationwide service of 

process, it becomes the statutory basis for personal jurisdiction.” 

Id. (citing In re Chase & Sanborn Corp., 835 F.2d 1341, 1344 

(11th Cir. 1988), rev’d on other grounds sub nom.

Granfianciera, S.A. v. Nordberg, 492 U.S. 33 (1989); Lisak v. 

Mercantile Bancorp Inc., 834 F.2d 668, 671 (7th Cir. 1987)). 

Citing Republic of Panama, the Fourth Circuit reached the same 

conclusion. ESAB Grp., Inc. v. Centricut, Inc., 126 F.3d 617, 

 

9

 Plaintiffs argue that the District Court erroneously 

dismissed the claims against Don Isken because he (unlike Paul 

Isken and IE) did not seek dismissal based on the absence of

personal jurisdiction. We do not address this argument because 

we determine that the District Court possesses personal

jurisdiction over all three of the Isken Defendants.
21

626 (4th Cir. 1997). Five circuits (the Second, Seventh, Ninth, 

Tenth, and D.C. Circuits) have stated that subsection (b) governs 

nation-wide service of process and personal jurisdiction over 

“other parties.”

10

 See FC Inv. Grp. v. IPX Markets, Ltd., 529 

F3d 1087, 1098-1100 (D.C. Cir. 2008) Cory v. Aztec Steel 

Bldg., Inc., 468 F.3d 1226, 1229-33 (10th Cir. 2006); PT United 

Can Co. v. Crown Cork & Seal Co., 138 F.3d 65, 70-72 (2d Cir. 

1998); Lisak, 834 F.2d at 671-72; Butcher’s Union Local No. 

498 v. SDC Inv., Inc., 788 F.2d 535, 538-39 (9th Cir. 1986). 

We agree with the majority approach. We do so based on

the language and structure of the RICO provision itself as well

as the relative absence of reasoning in support of the minority 

position. The history of the legislation and our own prior case 

law provide further support for this majority approach. 

 

10

 We note that the Seventh Circuit has pointed (in 

passing) to subsection (d) as authorizing nation-wide service of 

process. See Cent. States, Se. & Sw. Areas Pension Funds v. 

Reimer Express World Corp., 230 F.3d 934, 940-41 (7th Cir. 

2000); Robinson Eng’g Co. Pension Plan & Tr. v. George, 223 

F.3d 445, 449 & n.1 (7th Cir. 2000). However, there are other 

Seventh Circuit decisions pointing to subsection (b) (including 

Lisak, which did address the statutory provision with a little 

more depth than either Central States or Robinson

Engineering)). See Lisak, 834 F.2d at 671-72; Stauffacher v. 

Bennett, 969 F.2d 4455, 460-61 (7th Cir. 1992), superseded by 

rule on other grounds as stated in Cent. States, 230 F.3d at 938. 

Robinson Engineering also cited to Stauffacher’s reference to 

subsection (b). Robinson Eng’g, 223 F.3d at 449 (citing 

Stauffacher, 969 F.2d at 460-61). 
22

“The first federal appellate court to actually analyze § 

1965’s full text and offer reasoning for its choice of subsections 

was the Second Circuit” in PT United. Cory, 468 F.3d at 1230

(footnote omitted). The Second Circuit persuasively explained 

the function of each subsection as part of a single coherent 

framework for RICO actions. See, e.g., FC Inv., 529 F.3d at 

1099 (“Having considered the arguments of the parties, as well 

as the reasoning of our sister circuits on the question, we are 

persuaded to adopt the Second Circuit’s reasoning.”); Cory, 468 

F.3d at 1231 (“We find [the Second Circuit’s] reasoning 

persuasive and consistent with congressional intent.” (footnote

omitted)). Specifically:

Section 1965 makes sense only if all of its 

subsections are read together. Neither the district 

court’s opinion nor the briefing of the parties 

discusses § 1965(a) and (c), but we find these 

sections to be equally important to a coherent 

understanding of the meaning and functioning of 

the statute, particularly for the purpose of 

interpreting the terms “other parties” and “other 

process” in §§ 1965(b) and (d), respectively.

Reading all of the subsections of § 1965 

together, the court finds that § 1965 does not 

provide for nationwide jurisdiction over every 

defendant in every civil RICO case, no matter

where the defendant is found. First, § 1965(a) 

grants personal jurisdiction over an initial 

defendant in a civil RICO case to the district court 

for the district in which that person resides, has an 

agent, or transacts his or her affairs. In other 
23

words, a civil RICO action can only be brought in 

a district court where personal jurisdiction based 

on minimum contacts is established as to at least 

one defendant. 

Second, § 1965(b) provides for nationwide 

service and jurisdiction over “other parties” not

residing in the district, who may be additional 

defendants of any kind, including co-defendants, 

third-party defendants, or additional counterclaim defendants. This jurisdiction is not 

automatic but requires a showing that the “ends of 

justice” so require. This is an unsurprising 

limitation. There is no impediment to prosecution 

of a civil RICO action in a court foreign to some 

defendants if it is necessary, but the first 

preference, as set forth in § 1965(a), is to bring 

the action where suits are normally expected to be 

brought. Congress has expressed a preference in 

§ 1965 to avoid, where possible, haling 

defendants into far flung fora.

PT United, 138 F.3d at 71-72 (footnote omitted). Going further,

subsection (c) “simply refers to service of subpoenas on 

witnesses”—specifically in civil or criminal actions or 

proceedings instituted by the government. Id. Finally, 

“subsection (d)’s reference to ‘“all other process”’ must mean 

process different than a summons or a government subpoena, 

both of which are dealt with in previous subsections.” Cory, 

468 F.3d at 1230 (quoting PT United, 138 F.3d at 72). As the

Second Circuit explained:
24

This interpretation, one which gives meaning to 

the word ‘other’ by reading sequentially to 

understand ‘other’ as meaning ‘different from that 

already stated in subsections (a)-(c),’ gives 

coherent effect to all sections of § 1965, and 

effectively provides for all eventualities without 

rendering any of the sections duplicative, without 

impeding RICO actions and without unnecessarily 

burdening parties.

PT United, 138 F.3d at 72 (“We conclude that the natural 

reading given to § 1965(b) by the 9th Circuit in Butcher’s Union

and the district court here was correct, and that this conclusion is 

borne out by a complete reading of the statute, a course of action

which has not been followed by the courts that have read § 

1965(d) in isolation to reach the opposite conclusion.”).

In contrast, the circuit courts adopting the minority

approach did not offer a detailed explanation for their selection

of subsection (d). The Eleventh Circuit “did ‘not pause long 

over . . . the question,’ and oddly, it cited Lisak [which 

identified subsection (b) as creating personal jurisdiction] for 

support.” Cory, 468 F.3d at 1230 (quoting Republic of Panama, 

119 F.3d at 942); see also, e.g., PT United, 138 F.3d at 70 

(“[A]nother circuit court stated in conclusory terms that § 

1965(d) provides for nationwide service of process.” (citing 

Republic of Panama, 119 F.3d at 942)). Without mentioning 

subsection (b), the Fourth Circuit indicated that subsection (a) 

authorizes venue while subsection (d) authorizes service of 

process “evidencing Congress’ desire that ‘[p]rovision [be] 

made for nationwide venue and service of process.’” ESAB 

Grp., 126 F.3d at 626 (quoting H. Rep. No. 91-1549, at 4 
25

(1970), reprinted in 1970 U.S.C.C.A.N. 4007, 4010); see also, 

e.g., Cory, 468 F.3d at 1230 (noting that Fourth Circuit did not 

mention contrary position of Seventh and Ninth Circuits).

In fact, the history of the RICO provision provides

additionalsupport for the majority approach. In the report cited 

by the Fourth Circuit, the House Judiciary Committee stated that 

“[s]ubsection (b) provides nationwide service of process on 

parties, if the ends of justice require it, in actions under Section 

1964” while “[s]ubsection (d) provides that all other process in 

actions under the chapter may be served wherever the person 

resides, is found, has the agent, or transacts his affairs.” 1970 

U.S.C.C.A.N. at 4010 (further stating that subsection (a) 

establishes venue for civil proceedings while subsection (c) 

provides for nationwide subpoena power for witnesses in civil 

or criminal proceedings but requires good cause for issuance if 

witness in civil action resides in another district and at place 

more than 100 miles from court). The committee further 

explained that “[S]ection 1965 contains broad provisions 

regarding venue and process, which are modeled on present 

antitrust legislation.” Id.; see also, e.g., Cory, 468 F.3d at 1231 

(discussing committee report). For instance, the Clayton Act 

provides that “[a]ny suit, action, or proceeding under the 

antitrust laws against a corporation may be brought not only in 

the judicial district whereof it is an inhabitant, but also in any 

district wherein it may be found or transacts business; and all 

process in such cases may be served in the district of which it is

an inhabitant, or wherever it may be found.” 15 U.S.C. § 22. 

Like the RICO provision, the Clayton Act then authorizes “other 

parties” to be served if “the ends of justice” so require:

The several district courts of the United States are 
26

invested with jurisdiction to prevent and restrain 

violations of this Act, and it shall be the duty of 

the several United States attorneys, in their 

respective districts, under the direction of the 

Attorney General, to institute proceedings in 

equity to prevent and restrain such violations. . . . 

Whenever it shall appear to the court before 

which any such proceeding may be pending that 

the ends of justice require that other parties 

should be brought before the court, the court may 

cause them to be summoned whether they reside 

in the district in which the court is held or not, 

and subpoenas to that end may be served in any 

district by the marshal thereof.

15 U.S.C. § 25; accord 15 U.S.C. §§ 4, 5 (Sherman Act); 15 

U.S.C. §§ 9, 10 (Wilson Tariff Act). The Fourth Circuit 

appropriately turned to Justice Jackson’s summary of the 

antitrust statutory scheme in which he explained that, before 

“‘other parties’” may be properly served, “‘it must be made to 

appear to the court that the ends of justice require that they be

brought before the court, in which case they may be summoned 

from any district.’” Cory, 468 F.3d at 1231 (quoting United

States v. Nat’l City Lines, 334 U.S. 573, 598 (1948) (Jackson, J., 

concurring in result), superseded by statute on other grounds as

stated in Trotter v. 7R Holdings, 873 F.3d 435 (3d Cir. 2017)). 

Finally, we previously identified § 1965(b) as the 

subsection governing service of process and personal 

jurisdiction in this context. In explaining why a venue provision 

applicable to civil forfeiture proceedings, see 18 U.S.C. §

981(h), does not authorize nation-wide service of process (and
27

thereby would not permit the district court to exercise in rem

jurisdiction where the res is located outside the district), we 

observed that Congress has recognized in other instances the 

utility of a specific provision authorizing nation-wide service of 

process. United States v. Contents of Account No. 3034504504, 

971 F.2d 974, 982 (3d Cir. 1992). We offered subsection (b) of 

the RICO statutory provision and the Sherman Act as examples

of legislation expressly authorizing nation-wide service:

Aside from the Commodity Exchange Act, 

Congress has expressly provided for nationwide 

service of process in the civil Racketeer

Influenced and Corrupt Organizations Act, see 18

U.S.C.A. § 1965(b) (West 1984), the Securities 

Act of 1933, see 15 U.S.C.A. § 77v(a) (West 

Supp. 1992), the Securities Exchange Act of 

1934, 15 U.S.C.A. § 78aa (West Supp. 1992), and 

the Employee Retirement Income Security Act,

see 29 U.S.C.A. § 1132(e)(2) (West 1985). See

[United States v. 11205 McPherson Lane, 754 F. 

Supp. 1483, 1488 (D. Nev. 1991).]; see also Lea 

Brillmayer & Charles Norchi, Federal 

Extraterritoriality and Fifth Amendment Due 

Process, 105 Harv. L. Rev. 1217, 1220 n.14 

(1992) (noting nationwide service of process 

provided for in Arbitration Act, 9 U.S.C.A. § 9

(West 1970) and Sherman Act, 15 U.S.C.A. § 5 

(West 1973); Howard M. Erichson, Note, 

Nationwide Personal Jurisdiction in All Federal 

Question Cases: A New Rule 4, 64 N.Y.U. L. 

Rev. 1117, 1123 n.30 (1989) (listing another 

twelve nationwide statutes providing for 
28

nationwide service of process). . . . 

Id. Plaintiffs acknowledge that this Court “did not squarely 

address the question [now before us] and it was simply a passing 

reference in a string citation.” (Appellants’ Brief at 19.) 

However, this reference, brief as it may be, should not be 

overlooked out of hand—especially where it is consistent with 

the statutory language and structure, the existing case law, and 

the history of the statutory provision at issue. 

Accordingly, “[w]hen a civil RICO action is brought in a 

district court where personal jurisdiction can be established over

at least one defendant, summonses can be served nationwide on 

other defendants if required by the ends of justice.” Cory, 468 

F.3d at 1226. Plaintiffs assert that there are two requirements 

that must be satisfied under subsection (b) “to establish personal 

jurisdiction over a defendant not meeting the minimum contacts 

requirements.” (Appellants’ Brief at 23.) According to 

Plaintiffs, these requirements are: (1) “[a]t least one of the other 

defendants must meet the traditional personal jurisdiction 

requirements” (id. at 24); and (2) “[t]he ‘ends of justice’ must 

require that the district court in this case is the one in which this 

case should be tried” based on “the statutory language in Section 

1965(b), which courts have held to require ‘that there is no other 

district in which a court will have [traditional] personal 

jurisdiction over all of the alleged co-conspirators’” (id.

(quoting Butcher’s Union, 788 F.2d at 539). 

The structure of § 1965 as well as the “other parties”

language of subsection (b) clearly require the presence of at 

least one defendant that meets the traditional contactstest. With 

the apparent exception of the Seventh Circuit, see Lisak, 834 
29

F.3d at 671-72, the circuit courts following the majority 

approach have adopted this requirement. See FC Inv., 529 F.3d 

at 1098-1100; Cory, 468 F.3d at 1229-33; PT United, 138 F.3d 

at 70-72; Butcher’s Union, 788 F.2d at 538-39. 

As Plaintiffs recognize, the Ninth Circuit held that the 

plaintiff must also establish that there is no other district court 

that would have traditional personal jurisdiction over all of the 

defendants. Butcher’s Union, 788 F.3d at 53. As the Seventh 

Circuit put it, “Section 1965(b) authorizes nationwide service so 

that at least one court will have jurisdiction over everyone 

connected with any RICO enterprise.” Lisak, 834 F.3d at 672. 

“A district court in Indiana will have that jurisdiction whether or 

not Widmar can be brought before the court in Illinois, so 

perhaps the ends of justice do not ‘require’ his presence in this 

suit.” Id. We note, however, that the Tenth Circuit rejected the 

Butcher’s Union requirement, instead holding “that the ‘ends of 

justice’ analysis is not controlled by the fact that all defendants 

may be amendable to suit in one forum.” Cory, 468 F.3d at 

1232. The Cory court did not “offer a competing definition, as 

the ‘ends of justice’ is a flexible concept uniquely tailored to the 

facts of each case.” Id. “And in the current case, we have 

Cory’s assertion that the ends of justice require nationwide 

service simply because he has sustained damages and litigation 

costs in Kansas. We conclude, as a matter of law, that such 

facts, standing alone, do not satisfy the ‘ends of justice’ 

standard.” Id. (noting that plaintiff did not claim financial 

impediment to suit in defendants’ home state). Furthermore, the 

Second and D.C. Circuits have refrained from deciding what the 

“ends of justice” require. FC Inv., 529 F.3d at 1100 & n.14

(refraining from opining on meaning of “ends of justice” 

language because district court lacked traditional personal 
30

jurisdiction over sole defendant); PT United, 138 F.3d at 72 n.5 

(“As indicated, the statute does not specify what ‘the ends of 

justice’ are, but, as indicated, UCC does not challenge the 

district court’s finding that the ends of justice do not in this case 

require § 1965(b) jurisdiction over the individual defendants. 

The district court followed Butcher’s Union, 788 F.2d at 538-39, 

in finding ‘the ends of justice’ to refer to a case in which there is 

no district with personal jurisdiction over all defendants. 

Because the individual defendants work in Pennsylvania for 

Pennsylvania corporation Crown, the district court found that 

the ends of justice did not require personal jurisdiction over the 

individual defendants in New York under § 1965(b).”). 

Nevertheless, the parties in this case do not recognize this 

conflict. We need not—and do not—decide whether the Ninth 

or the Tenth Circuit is correct because, as we explain below, 

Plaintiffs establish both that no other district would have

traditional jurisdiction over all defendants and that the exercise 

of jurisdiction satisfies a flexible understanding of the “ends of 

justice.”11

We are satisfied that Plaintiffs satisfy the statutory 

requirements—which the Isken Defendants themselves do not

brief on appeal. While alleging a multi-state scheme implicating 

several Delaware and New Jersey defendants (and one Virginia 

defendant (MJL)), Plaintiffs identify roughly half of the thirtythree defendants as Pennsylvania residents or Pennsylvania 

entities with their respective places of business in Pennsylvania. 

 

11 We likewise need not—and do not—decide whether a

plaintiff must specifically allege “a multidistrict conspiracy” or 

“single nationwide RICO conspiracy” encompassing the 

defendants. See, e.g., Butcher’s Union, 788 F.2d at 539. 
31

Except for the Isken Defendants, none of the defendants moved 

to dismiss on the grounds of a lack of personal jurisdiction (not 

even MJL, which did move on venue grounds). As the District 

Court recognized in its venue discussion, “almost all other 

parties are Pennsylvania residents.” (JA20.) “Plaintiffs’ 

allegations focus on a ‘hub-and-spoke conspiracy’ between the 

McKennas and all named Defendants against Plaintiffs” (JA19), 

and “[e]vents giving rise to this action – the hub-and-spoke 

conspiracy – are centered in Pennsylvania” (JA20).

Specifically, “three of the four business-Plaintiffs [LG, AWS,

and LGSM] are Pennsylvania entities (two LLCs and one

general partnership), one [LGH] is a Delaware LLC, all have

principal or registered places of business within Pennsylvania,

and three [LG, AWS, and LGSM] conducted business within

Pennsylvania.” (Appellants’ Brief at 28 (citing JA70).) In fact, 

the amended complaint alleged that, while Timothy McKenna is 

believed to be a resident of Delaware, his son (the other person

at the alleged center of the conspiracy), Michael McKenna, is 

believed to be a Pennsylvania resident. According to the 

Plaintiffs’ pleading, “TIMOTHY McKENNA and MICHAEL 

McKENNA also directed snow removal services to the [Isken 

Defendants’] hotels and DON ISKEN’ [sic] home with no 

intention of billing DON ISKEN.” (JA95-JA96.) Furthermore, 

“[c]ounsel for the Company, SNYDER and FALCONE of 

SAUL EWING were advising TIMOTHY MCKENNA on how 

to handle this situation with ISKEN.” (JA96.) Allegedly, Saul

Ewing is a Pennsylvania limited partnership with its principal 

place of business located in Philadelphia, Pennsylvania, while

Snyder and Falcone maintain their offices at that location. 

Considering this Pennsylvania focus, no other district court 

would have had traditional jurisdiction over all of the numerous 

defendants in this action. Given the obvious proximity between 
32

Delaware and the Eastern District of Pennsylvania, “exercising 

personal jurisdiction over the Isken Defendants in this case does 

not compromise the Second Circuit’s recognition of Congress’s 

preference ‘to avoid, where possible, haling defendants into far 

flung fora.’” (Appellants’ Brief at 29 (quoting PT United, 138

F.3d at 72).) In the end, Plaintiffs alleged that at least one

Pennsylvanian is “at the center of a criminal enterprise” (JA77)

targeting Pennsylvania plaintiffs and involving numerous other 

Pennsylvania defendants as well as several defendants from 

neighboring states. Under the circumstances, the “ends of

justice” call for the exercise of jurisdiction over the three out-ofstate Isken Defendants. 

“Where Congress has statutorily authorized nationwide 

service of process, such service establishes personal jurisdiction, 

provided that the federal court’s exercise of jurisdiction 

comports with Fifth Amendment due process.” Cory, 468 F.3d 

at 1229 (citing Peay v. BellSouth Med. Assistance Plan, 205 

F.3d 1206, 1209 (10th Cir. 2000)); see also, e.g., In re

Automotive Refinishing Paint Antitrust Litig., 358 F.3d 288, 

297-99 (3d Cir. 2004); Pinker, 292 F.3d at 368-71. Having 

determined that “the ends of justice require” the Isken 

Defendants “be brought before” the District Court under § 

1965(b), we have no difficulty concluding that the District 

Court’s exercise of personal jurisdiction over them comports 

with the Fifth Amendment. In this context, we are not limited to 

the defendant’s contacts with the forum state and instead 

consider contacts with the nation as a whole. See, e.g., 

Automotive Refinishing, 358 F.3d at 297-99; Pinker, 292 F.3d at 

368-71. Don Isken and Paul Isken are both Delaware residents 

while IE is a Delaware limited liability company with its 

principal place of business in Newark, Delaware. “Once 
33

minimum contacts have been established, we assess whether the 

exercise of personal jurisdiction is consistent with ‘traditional 

notions of fair play and substantial justice.’” Pinker, 292 F.3d at 

370 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 

(1945)) (noting, inter alia, existence of dispute not raised by 

parties as to whether fairness prong of analysis applies in 

context of federal statute authorizing nation-wide service of 

process and stating that we need not concern ourselves with 

propriety of litigating in district court at issue vis-à-vis other 

district courts); see also, e.g., ESAB Grp., 126 F.3d at 626-27;

Republic of Panama, 119 F.3d at 942-48. Unlike the traditional 

approach, this inquiry focuses less on federalism concerns and 

more on the national interest in furthering the policies of the 

federal statute at issue. See, e.g., Pinker, 292 F.3d at 370. 

The District Court’s exercise of personal jurisdiction over 

defendants from a neighboring state does not offend traditional 

notions of fair play and substantial justice. “[W]e believe that 

the national interest in furthering the policies of the [federal 

anti-racketeering statute enabling a single district court to 

exercise personal jurisdiction over all defendants] militates in 

favor of exercising personal jurisdiction over [the Isken

Defendants].” Id. at 372; see also, e.g., ESAB Grp., 126 F.3d at 

627 (concluding that exercise of jurisdiction comported with 

Fifth Amendment because of absence of any evidence of such 

extreme inconvenience or unfairness as would outweigh 

congressionally articulated policy and that dictates of judicial 

efficiency did not so strongly weigh against forum that 

constitutional due process would be offended); Republic of 

Panama, 119 F.3d at 948 (finding that defendants failed to 

present compelling case that litigating action in forum would put 

them at severe disadvantage because defendants were large 
34

corporations providing banking services to customers in major 

metropolitan areas along eastern seaboard, fact they may have 

no significant contact with Florida was insufficient to render 

forum state unreasonably inconvenient, necessity of world-wide 

discovery indicated that Florida was no more inconvenient than 

any other district, and defendants presented no evidence that 

ability to defend would be significantly compromised); Lisak, 

834 F.2d at 672 (“Section 1965(b) authorizes nationwide service 

so that at least one court will have jurisdiction over everyone

connected with any RICO enterprise.”).

C. Pendent Personal Jurisdiction

In addition to the RICO claims, Plaintiffs asserted several

state law claims against the defendants (including the Isken 

Defendants). We agree with Plaintiffs that the doctrine of 

pendent (or supplemental) personal jurisdiction applies in this 

case. 

This Court recognized the notion of pendent personal 

jurisdiction more than forty years ago in Robinson v. Penn

Central Co., 484 F.2d 553 (3d Cir. 1973). We explained:

Analysis should begin, we think, with the 

fact that in the Securities Act of 1933 and the 

Securities Exchange Act of 1934 Congress has 

bestowed upon the United States District Courts 

the power to extend their writ extraterritorially so 

as to compel a personal appearance before them. 

Once the defendant is before the court, it matters 

little, from the point of view of procedural due

process, that he has become subject to the court’s 
35

ultimate judgment as a result of territorial or 

extraterritorial process. Looked at from this 

standpoint, the issue is not one of territorial in 

personam jurisdiction— that has already been 

answered by the statutes--but of subject matter 

jurisdiction. It is merely an aspect of the basic 

pendent jurisdiction problem. In United Mine

Workers v. Gibbs, [383 U.S. 715 (1966)], the 

Supreme Court recognized that a discretionary 

approach should be taken in considering whether 

to entertain pendent claims. Justification for 

entertaining such claims “. . . lies in 

considerations of judicial economy, convenience, 

and fairness to litigants; if these are not present a 

federal court should hesitate to exercise 

jurisdiction over state claims . . . .” [383 U.S. at 

726]. Moreover, while the issue of power to 

entertain a suit for an in personam judgment on a 

pendent state law claim will ordinarily be 

resolved on the pleadings, the court remains free 

throughout the proceedings to dismiss such a 

claim if that seems the fairer course. [Id. at 727.] 

In this case, recognizing that Cabot was properly 

before it by virtue of extraterritorial service 

authorized by two federal statutes, the district 

court properly weighed considerations of judicial 

economy, convenience and fairness, and 

concluded that it would entertain the pendent 

claims. That course was within its power and the 

district court will also have power to dismiss the 

pendent claims in the future as noted above.
36

Id. at 555-56. Acknowledging that the supplemental jurisdiction 

statute codified Gibbs, see 28 U.S.C. § 1367, the Fourth Circuit 

applied this approach to RICO and related state law claims. See

ESAB Grp., 126 F.3d at 627-29. 

While they argue in passing that the District Court lacks 

subject matter jurisdiction over the Pennsylvania state law 

claims in the absence of the RICO claims, the Isken Defendants 

do not dispute that the state law claims “are so related to” the 

claims under RICO “that they form part of the same case or 

controversy under Article III of the United States Constitution.” 

28 U.S.C. § 1367(a). Furthermore, they do not suggest that the 

District Court would decline to exercise its jurisdiction over

these claims pursuant to the factors set by Gibbs and 28 U.S.C. § 

1367(b). In fact, the District Court denied the various motions 

to dismiss the RICO claims under Rule 12(b)(6). See § 

1367(c)(3) (“the district court has dismissed all claims over 

which it has original jurisdiction”). “Since the court has 

personal jurisdiction over the defendants under service of 

process authorized by the Federal Rule of Civil Procedure 

[4(k)(1)(C)] and by the RICO statute, we can find no 

constitutional bar to requiring the defendants to defend the 

entire constitutional case, which includes both federal and state 

claims arising from the same nucleus of facts.” ESAB Grp., 126 

F.3d at 629. 

III.

For the foregoing reasons, we will vacate the order

entered by the District Court disposing of the parties’ dismissal

motions to the extent that it granted the Isken Defendants’

motion to dismiss for lack of personal jurisdiction under Rule
37

12(b)(2) as well as the District Court’s Rule 54(b) order insofar

as it designated this prior order as the final judgment as to the

Isken Defendants. This matter will be remanded to the District 

Court for further proceedings consistent with our opinion.