PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

______________

No. 1 8

- 3 7 58

______________

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; HAINE S & 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 Eas tern District of Pennsylvania (D.C. Ci v

. No

. 5

- 1 7

- c v

- 0 0 570 )
Honorable Jeffrey L. Schmehl , D istrict Judge

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Submitted under Third Circuit L

. A

. R

. 34.1(a)

October 22, 2019

BEFORE: GREENAWAY, J R

. , PORTER , and COWEN

, Circuit Judges

(Fi led : January 14, 2020 )

______________

Ke vin F. Berry
Tam a ra S. Grimm O’Hagan Meyer
100 North 18 t h Street Two Logan Square, Suite 700 Philadelphia, PA 19103

Attorneys for Appellant s

R y a n M

. E r n s t
G e o r g e P a z u n i a k
S e a n T

. O ’ K e l l y O ’ K e l l y E r n s t & J o y c e 9 0 1 N o r t h M a r k e t S t r e e t
S u i t e 1 0 0 0

W i l m i n g t o n , D E 1 9 8 0 1

Attorneys for Appellee s3 ______________

OPINION OF THE COURT

______________

COWEN, Circuit Judge

.

Plaintiffs

, Laurel Gardens, LLC (“LG”) , American Winter Services, LLC (“AWS”), Laur el Garden Holdings, LLC ( “ L G H ” )

, LGSM, GP ( “ L G S M ” ) , an d Charles P. Gaudios o , ap pe al 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, a nd Isken Enterpr i se s , LLC (“IE”) (“ the Isken Defendants”) . Specifically, the District Court designated its prior order

— granting the Isken
Defenda nts’ motion to dismiss for lack of personal juris diction
under Fede ral 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 argu e that the District C ourt erred by applying the
tradi tional r equirement s for personal jurisdiction as opp osed to a specific provis ion of the Racketeer Influence d and Corrupt Organizations Act (“RICO”) authorizing the nation

- wide

exerc ise of personal jurisdi ction in certain circumstances.

Initially, we conc lude that th e issu e of personal jurisdiction is pro perly befo re us and accord ing ly limit our ruling t o this threshold j u r i s d i c t i o n a l i s s u e . W e agree with Plaintiffs that 18 U.S.C. § 1965(b) (and not 18 U.S.C. §196 5(d) )4 governs t h e e x e r c i s e o f p e r s o n a l j u r i s d i c t i o n i n t h i s c a s e and that

t hey s a t i s f

y the st atutory (a nd constitutiona l) requirements f o r

t h e D i s t r i c t C o u r t t o e x e r c i s e s u c h j u r i s d i c t i o n over the Isken
Defendants . In turn, Plaintiffs’ state law claims fall under the doctrine of pend ent personal jurisdiction. Acco rdingly, we wi ll

vacate t h e o r d e r e n t e r e d b y t h e D i s t r i c t C o u r t d i s p o s i n g o f t h e
p a r t i e s ’ d i s m i s s a l m o t i o n s t o t h e e x t e n t t h a t i t g r a n t e d t h e I s k e n D e f e n d a n t s ’ m o t i o n t o d i s m i s s f o r l a c k o f p e r s o n a l j u r i s d i c t i o n

u n d e r R u l e 1 2 ( b ) ( 2 ) a s w e l l a s t h e D i s t r i c t C o u r t ’ s R u l e 5 4 ( b )

o r d e r i n s o f

a r a s i t d e s i g n a t e d t h i s p r i o r o r d e r a s t h e f i n a l j u d g m e n t a s t o t h e I s k e n D e f e n d a n t s

.

I.

Naming a total of thir ty

- th ree defendants, P la intiffs alleged in the ir lengthy amended complaint that “ [t]he primary

cause o f this action is a widespread criminal en terprise eng aged
in a patter

n o f racketeering activity across State lines, and a

cons piracy to engage in rack eteering activity involving numerous RICO predicat e acts during the past ten (10) calendar years.” (JA70

. ) Plaintiffs alleged predicate acts of b ribery

, exto rt ionate credit tra nsactions , mail fraud , wir e fraud , witness

t ampering , and retaliation

. Th e y t h e n s e t f o r t h three s e p a r a t e RICO c l a i m s , i.e., conduct and participation in an enterprise through a pattern of racketeering under 1 8 U.S.C. § 1962 (c), acquisi tion an d mainten anc e of an int erest 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 p l e a d i n g i n c l u d e d claims against all defendants under Pennsylvania law for aiding and abetting the breach of fiduciary duty, civil conspiracy, fraud, conversion, negligent5 misrepresentation, and tortious interferen ce with contract and

pros pective cont ractual arrangem ent s (as well as a claim for breach of fiduciary duty against Defendants Timothy McKenna and Michael McKenna).

According to Plaintiffs, 1 the enterprise’s primary objective has been to inflict sever e economic hardship upon th e Plaintiffs with the intent to impair, obst ruct, prevent, and discourage them from continuing to work in the field of landscaping and snow removal services. “[A] t the c enter of [ the ] criminal enterprise” are Defendants Tim othy McKenna and
Michael McKenna

. (JA77. ) T imothy McK enna ( a res ident of
Del aware w h o m a i n t a i n s a b u s i n e s s a d d r e s s i n D e l a w a r e ) was the managing member of LG and AWS until Ma y 2012 (when he was replaced by Gaudioso) and remained a consultant for

P laintiffs until his termination for cau se in June 2 0 14. Likewise,

M ic ha el McKenna (Timothy McKenna’s son and a Pennsylvania
resi dent w h o m a i n t a i n s a D e l a w a r e b u s i n e s s a d d r e s s ) was the general manager for LG and AWS until he resigned on November 9, 2014. “Timo t hy McKenna, Michael McKenna,
Cath er ine McKenna (Timothy’s wi fe ), a nd [Defendant] MAT Site Management, LLC (the McKennas’ business) sought to

s teal the Plaint iffs’ customers and continue in the business of servicing the commercial landscaping and snow removal needs

1 The amended complaint all eged that L G a n d A W S a r e P e n n s y l v a n i a l i m i t e d l i a b i l i t y c o m p a n i e s while LGSM is a

Penn sylvania limite d lia bility partnersh ip. The three enti ties

m aintain their p r i n c i p a l p l a c e s o f b u s i n e s s , own ed property, and
conduct ed business in Pennsylvania. L GH i s a Del aware limited
liabili ty company with its principal place of b usiness located in Pennsy lvania.6 for those customers.” ( Ap pellants’ B rief at 5

- 6 (c it ing JA70).)

It is undisputed that b rothers Don I s k e n and Paul Isken

are res ide nts of the State of D elaware and that IE is a Delaware limited liability company with its principal place of business
l o c a t e d in Newark, Delaware

. 2 The first a mended complaint
inc luded the following allegations against the Isken Defendants:

Isken and Isken Enter prises

134. DON ISK EN and PAUL ISKEN
have been associated with TIMOTHY
McKENNA for several years. They own several local hotels, specif

ical ly the Home wood Su ites,
Hol iday Inn Express, and Comfort Inn in Wilmington, DE.

135. TIMOTHY McKENNA conspired
with DON ISKEN and P AUL ISKEN to steal Company assets and labor by delivering loads of
salt and cal cium at no charge to the ISKEN’ [ s i c ]
hotels in retur n for some de bt relief to TIMOTHY
McKENNA. This was late in the 2014 season when salt and melt products were generally
unavailabl e at any price and the Company’s inventory was stretched. TIMOTHY McKENNA
and MICHAEL McKENNA also directed sn ow

2 Th e a mended complaint alleged that IE “is a li mited partnership under the laws of the Commonweal th of Pennsylvania” m aintaining a business address in Newark,

D elaware. (JA74.)7 removal serv ices to the h ote ls and DON ISKEN’ [ s i c ] home with no intention of billing DON ISKEN. When the Company learned of t his, the Company sent a bill and attempted to collect payment from DON ISKEN and PAUL ISKEN.
DON IS KEN and PAUL ISKEN refuse d t o p a y advisin g GAUDI OSO, ‘Our deal was with Tim

McK enna”. When GAUDIOSO pressed as to what that meant, neither DON ISKEN nor PAUL
ISK EN would explain.

13 6. Having loaned TIMOTHY McKENNA a significant amount of money (upwards of $200 ,000) and TIMOTHY

Mc KENNA being una ble to pay it ba ck, DON

I SKEN has init iated several Sherriff Goods and
Chattel sales on TIMOTHY McKENNA’s home.
The emai l trail between TIMOT HY McKENNA and DON ISKEN goes back years and shows TIMOTHY McKENNA promising to pay DON
ISKEN and a lways reneging on paym ent. Ult imately, DON ISKEN ini tiated the Sherriff
sale and then TIMOTHY McKENNA somehow came up with an amount to get DON ISKEN off
hi s back for a short time. Then the process started again.

137. Counsel for th e Company,
SNYDER an d FALCONE of SA UL EWIN G
were ad vising TI MOTHY McKENNA on how to
handle this situation with ISKEN.8 (JA95

- JA96.) 3 Plaintiffs attached s e v e r a l exhibits to their pleading, including an exhibit c o n s i s t i n g o f documents purportedly relat ing to the I sken Defenda nts . These do cum ents

are : (1 ) an April 28, 2014 e

- mail from Don Isken to Timo thy 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 e a c h P a u l a n d I ” within the nex t two days, for war ding w i ring i nstructions from Paul Isken , and expressing frustration about the whole process ( stating that the amount would only increase a n d specifically pointing to earlier

e

- mails in which Timothy McKenna had as sured Don Isken that

pay ment was forthc omi ng ) ( J A 2 9 3 ) ; (2) a May 2, 2014 e

- ma il 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

wo uld receive, refusing to accept payment , a nd ind icating that
he had no intent ion to halt the judicial actions (and in particular that he intended to pus h for a judicial sale of Ti mothy McKenna’s personal belongings at the earliest opportunity) ; (3) an Apri l 15, 2014 invoice from AWS billing Hom e wo od Suites $12 ,874 for services rela ted to snow removal , including $10,000

for calcium ; and (4) a June 5, 2014 e

- mail from Don Iske n to
Ti mothy McKenna replying to an e

- mail forwarded by Timothy
McKenna from Defenda nt Christopher Wright , i n quiring why

3 The am ended complaint referred to Plainti ffs as “the Company.” De fend ant Sau l Ewi ng, LP “is a Pennsylvania limited partner ship engaged in the practice of law with a princip al place of business” located in Philadelphia, Pennsylvania, wh ile Defendant s David Falcone and John S n y der are engaged in t he practice o f law at the law firm’s o ffi ce. (JA76.)9 th e W right e

- mail message 4 was sen t to h im and “[w]hat am I supposed to do with this information and documentation

— deposit it in the bank” (JA 296).

Fifteen separate motions to dismiss were filed by the respective def

endants. In fact, all but one of the d efe ndants (Mary Tresize) m o v e d t o d i s m i s s

. On May 15, 2017, t he Isken
Defendants moved to dismiss with prejudice pursuan t to Rule 12(b )(2) and Fede ral Rule of Civil Procedure 12(b)(6). In their memorandum of law, th ey argued that the Dist rict Court must
dis miss this act ion pursuant to Rule 1 2( b)(2) because it lacks personal jurisdiction over Paul Isken and IE. Under

Penns ylvania’s long

- arm statute providing for personal jurisdiction over non

- resident defendants to t he fullest extent
allow ed under the Uni ted States Const itution, see 42 Pa. Co n s. Stat. Ann. § 5322, the amended complaint purportedly fails to allege either gen eral or specific juri sdiction over Paul Isken and
IE. The Isken Defendants further sought dismi ssal under Rule 12(b )(6 ) on the grounds th at the p l e a d i n g d o e s n o t assert a c laim against the Isken Defendants upon which relief may be granted,
the state law c laims are outs ide the statute of limitation s , and the claims are alleged against improper parties

. On June 16, 2017,

P laintiffs filed a le ngthy omnibu s r esponse in oppositio n to several motions to dismiss , including the Isken Defendants’ o w n motion. In th eir June 23, 2017 reply brief, the Isken Defendants acknowledged that the Plaintiffs’ opposition h a d responded to

4 The Wright e

- mail was entitled “ MJL Salt Deal Summary ” and ask ed Timoth y McKenna not to shar e the attached documents with anyone becau se the GSC cost per ton
and some of the other small variables had yet to be adjusted

. (JA296.)10 two of the ir grounds for dismissal ( f ailure to state a clai m and
statute of limitations )

. They then address e d the merits of these

two g r o u n d s

. Howe ver, the Isken Defendants also p o i n t e d o u t that “Plaintiffs do not respond to the Isken D efendants’ arguments f

or dismissal bas ed o n the lack o f personal jurisdiction and the naming of an improper party.” ( E.D. Pa. Docket Entry #97 at 2.) “Purs u ant to Local Rule 7.1(c), these
arguments are unopposed , and the [first amended complaint]
should be dismissed by the Co urt on that b asi s.” ( Id. (citin g 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, Plain ti ffs s u b m i t t e d a motion for leave
to fil e a sur

- reply in further opposition to the Isken Defendants’
motion to dismiss. Noti ng that most defendants h a d filed nearly
identical motions to dismiss , “Plaintiffs do not inte nd to waste
this Cour t’s time by repea ting i ts o w n arg uments in a surreply,
but d oes seek leave to briefly address the Isken Defendants’ argument that this Court lack s pe rsonal jurisdiction over Defendants Paul Isken and [IE].” (E.D. Pa. Docket Entry #108

at 2.) “Plaintiffs respectfully requ est that t his Co urt exercise its
discretion and grant leave to file a surr e ply to clarify the record and respond to Defendants’ j uris dictional arguments.” ( Id. )

The District Court granted Plaintiffs’ motion for leave on

J uly 19, 2017, a nd the sur

- reply w as filed on the same day. I n addition to r esponding to the Isken Defendants’ argument that
the first amended complaint should be dis missed because of Plaintiffs failure to respond on the issue of personal jurisdiction,
Pla intiffs argued that the D istrict Court pos se sses both general11 and specific j urisdiction over Paul Isken and IE (and a l s o

a s s e r t e d that the affidavits submitted by P a u l I s k e n a n d D o n I s k e n falsely state that IE has never ow n ed or held any interest in any re al property in Pennsylvania). Th ey a l s o a r g u e d t hat the
District Court has personal jurisdiction pursuant to the RICO

statute as well as the doctrine of penden t personal jurisd iction.

On March 14, 20 1 8, the District Court disposed of the
various dism issal motions. All of them were de nied with t wo

ex ceptions, namely , the respe ctive motions to dismiss filed by

De fendant MJL Enterprises (“MJL”) and the I sken De fendants.

T h e D i s t r i c t C o u r t exp ressed concern that the lengthy pleading violates the require ment to set fort h “a short and plai n stateme nt of t he claim, ” Fed. R. Civ. P. 8(a), noting that it s “302 pages (337 paragraphs with attached exhibits) include [ ed ] a mass of details which may be re levant and appropriate at summary judgment or trial, but are clearly surplus age in stating a cl aim at
thi s stag e ” (JA18)

. However, i t foun d “Plaintiffs’ claims survive a Rule 12(b)(6) challenge.” ( I d

. ) “Defendant MJL

mov es to dismiss a rguing venue is improper here because the terms of the settlement agreement bet ween MJL and La urel Gardens expres sly provid es eac h of the Parties involved in the agreement (MJL and Laurel Gardens) consents t o jurisdiction in
the Eastern Dist rict of Virginia.” ( Id. (citing E.D. Pa. Docket Entry #60). ) While concluding that venue is proper under 28 U.S.C. § 1391, the Dis trict Court transferred the claims again st MJL to the United States District Court for the Eastern District of Virginia purs uant to 28 U.S.C. § 1404. Finally, the District Court agreed with the Isken Defendants that i t lacks both

sp ecific and general juri sdicti on ove r t h e m

. I t looked to Pennsy lvania’s long

- arm statute and the Fourteenth
Amendment’s contacts test. “A pplying t he above principles,12 this Court concludes the Iskens lack the requisite ‘minimum
contacts’ wit h Pennsylva nia to the exercise of jurisdicti on ove r them. Walden v. Fiore , 13 4 S. Ct. 1115, 1124 (2014).
Therefore

, this Court lacks specific jurisdict ion.” (J A22.) T he

D i s t r i c t C o u r t a l s o f

o u n d t h a t t h e Isken Defendants also do not possess the continuou s and syste ma tic contacts with t he forum

sta te required for the exercise of general jurisdiction.

“ A c c o r d i n g l y , t h e I s k e n s ’ M o t i o n t o D i s m i s s f o r l a c k o f

p e r s o n a l j u r i s d i c t i o n u n d e r R u l e 1 2 ( b ) ( 2 ) i s g r a n t e d

. T h e I s k e n s

a r e d i s m i s s e d f

r o m t h i s m a t t e r

. ” ( J A 2 3

. )

On M ay 17, 2018, the Isk en Defendants moved for entry of final judgment pur suant to Rule 54(b). The Di strict Court granted this motion on November 20, 2018, determinin g that “the Order is a final judg ment as to Defendants Don Isken, Paul Isken, and Isken Ente rprises, LLC for the purposes of Federal
Rule of C ivil Proc edure 54(b), and no just cause exists fo r delaying entry of final judgment in this matter as t o Defendant s Don Isken, Paul Isken, and Iske n Enterprises, LLC.” (JA15.)

II.

In addition to some d is agreement as to what issues are properly before u s , t his ap peal implica tes a quest ion of first impr ession for t h i s C o u r t , namely, whether 18 U.S.C. § 196 5(b)
or 18 U.S.C. §1965(d) g o v e r n s t h e e x e r c i s e o f p e r s o n a l j u r i s d i c t i o n i n t h i s c a s e

. 5 Feder al Rul e o f Civil Procedure 4( k )

5 Th e District Court had subject matter juris diction over
the RICO claims pursuant to 28 U.S.C. § 1331 and over the state law cla ims under 28 U.S.C. § 13 67

. We have appellate jurisdiction under 28 U.S.C. § 1291.13 s e t s f o r t h t h e “Territorial Limits of Effec tive Service” and provides that “ (1) [i]n general. Se rving a summons or filing a
waiver of se rvice establishes person al jurisdictio n over a defendant: (A) who is subject to the jurisdic t io n of a court of

gene ral jurisdiction in the state where t he distri ct is located.”

Th is subsection implicates the traditional contacts

- based approach t o p e r s o n a l j u r i s d i c t i o n , a n d i t was this tradit ional approach that the District Court a p p l i e d

. Howeve r , Rule 4(k ) ( 1 ) (C) incl udes an alternati ve: serving a summons or filing

a waiver of service establish es personal jurisdiction over a defendant “when authorized by a federal statute.” RICO
includes a specific provision entitled “Venue and Process,”
which s ta tes:

(a) Any civil action or proceed ing under this chapter against a ny person may be instituted in
the distric t court of the United States for any
district in whi ch such person resides, is found, h as

Whet her personal jurisdiction may be exe rc ise d over an

out

- of

- state defendant poses a question of law triggering a plenary standard of r eview. See , e.g. , Me tcalfe v. Renaissance Marine, Inc. , 566 F. 3d 324, 329 (3d Cir. 2009). “Although the plaintiff bears th e burden of demonstrating the facts th at establish personal jurisdiction, see Mell on Bank (East) PSFS
Nat’l Ass’n v. Farino , 960 F.2 d 1217, 122 3 (3d Cir. 1992), in reviewing a m otion to dismiss under Rule 12 ( b)(2), we ‘must accept all of the plainti ff’s allegations as true and construe dispu te d f acts in favor of the plaintiff.’ Cart ere t Sav. Bank, FA
v. Shushan , 954 F.2d 141, 142 n.1 (3d Cir. 1992).” Pin ker v. Roche Holdings Lt d. , 292 F.3 d 361, 368 (3d Cir. 2002).14 an agent, or transacts his affairs.

(b) In any ac t io n under section 1964 of this chapter i n any district court of the Unit ed States in
which it is shown that the en ds of justice requi re that other parties residing in any other district be brought befo re the court, the court may cause such parties to be s u mm oned, and process for that

purpose may be served in any judicial distr ic t of the United States by th e marshal th ereof.

(c) In any civil or criminal action or proc eeding instituted by the United Sta tes under this chapter
in the district court of the Un i te d States for any judi cial district, su bpenas [ s i c ] issued by such

court to c ompel the attendance of witnes ses may be s erved in any other judicial district, except that
in any civil action or proceeding no such subpoena [ s i c ] shall be issued for service u po n any individual who resides in another district at a place more than on e hundred m iles from the place
at which s uch court is held without approval given by a judge of such cour t upon a showing of good cause.

(d ) All other process in any action or pro c ee ding under this chapt er may be served on any person in any judicial dist rict in whi ch such person resides,
is fou nd, has an a gent, or transacts his affairs.

18 U.S.C. § 1965

. W e c o n c l u d e t h a t subsection (b) (an d not subsection (d ) ) applies h e r e

. In t u rn , Plain tiffs satisfy the15 statutory (and constitutional) requirements for the exercise of personal jur isdiction ov er the Isken Defendants. Furthermore,

P l a i n t i f f s ’ state law claims then fall under the doctrine of

pe ndent personal j urisdiction.

A. The Is sues on Appeal

Ini tially, t he parties disagree over the issue or issu es that are properly before u s on this ap peal . On the one hand, the
Isken Defendants insist that Plaintiffs waived the issue of personal ju ris diction under RI CO by not raising this s ta tutory issue before their sur

- reply. Instead of responding to Plaintif fs’ § 1965 arg u ments , the Isk en Defendant s go on to argue at some length that the RICO claims fail as a matter of law and that
“therefore th e District Court ha s no personal jurisdict i on over the Isken Defe ndants.” (Appellees’ Brief at 4 (“Absent the

RICO claims, subject matter jurisd iction for t he district court
over nonfederal claims is lost

– making personal jurisdiction a moot question, as under [Plaintiffs’ ] argument, personal ju r is dictio n only obtains in this case under 18 U.S.C. § 1965.” ).) They als o contend that the state law claims are l egally deficient and barred by the statute of limitations and that IE is not a proper defendant. O n the other hand, P laintiffs contend that t hi s Cour t lacks the ju risdiction to consider the substantive issues
raise d by the Isken Defendants’ a p p e l l a t e br ie f because they
were never addre ssed by the District Court and, in any event, no
notice of cross

- app eal was eve r filed. W ith res pect to the m e ri ts of the s e subs tant ive issues , Plaintiffs “will simply refer to and

in corporate by reference their Omnibus Re sp onse in the district court, which addressed the Isken Defendants’ and many other
defendants’ substa ntive argumen ts” (and they re quest leave t o f ile a full brief add ressing the substantive issues if the Court16 were to entertain them). (Appellants’ Reply B rief at 6 a n d 8 (citing E.D. Pa. Docket Entry #91). )

We agree with Plaintiffs that the issue of personal jurisdiction under the RICO provis i on is properly before u s. Under the circumstances, we also limit our ruli ng to this threshold jurisdictional i s s u e u n d e r R u l e 1 2 ( b ) ( 2 ) a n d t h e r e f o r e refrain from considering whether Plaintiffs f a i l to stat e a claim

upon which rel ief c a n be granted u n d e r R u l e 1 2 ( b ) ( 6 )

.

It is w ell established that, in the absence of exception al circumstances, this Court will not conside r issues raised for the first time on appeal. See, e. g. , In re Ins. Brokerage A ntitrust Litig. , 579 F.3d 241, 261

- 62 (3d Cir. 2009)

. “ Fo r an issue to be

prese r ved for appeal, a party ‘must unequivocally put it s position before the trial court at a point an d in a manner that permits the court to consider its merits. ’ ” Id. at 262 (qu oting
Shell Petroleu m, In c. v. United States , 182 F.3d 2 12 , 218 (3d Cir. 1999)).

Plaintiffs did not address the question of perso nal jurisdiction

— whether under the t r a d i t i o n a l c o n t a c t s t e s t or a specific federal statutory provision authorizing t he na tion

- wide exercise of pe rsonal jurisdiction

— until they mov e d for leave to
file a sur

- reply. However , the District Court granted the i r motion and ordered Plaintiffs to file their sur

- r eply

— which they
did. While the Isken Defendants assert that such f iling s are normally granted o nly when the preceding reply brief ra ises new
matter or argu m ents and that they were deprived “o f opportunity

t o further respond” (Appellees’ Brief at 13), th e Isken
Defendants did not oppose or o t h e r w i s e object to Plaintiffs’
successful moti on for leave t o file the sur

- reply

. Given the17 m o nt hs that passed between t he authorized filing of the sur

- reply
to the motio n to dismiss and the District Court’s dispos iti on of
the d i s m i s s a l m o t i o n i t s e l f

, the issue was clearly presented to the
Dist rict Court at a poin t and in a manner to permit it (an d t he Isken Defendants) to consider its merits. Unfortunately, the
District Court ’s dismissal order did not address the iss ue of personal jurisdiction under the RICO provision. But this omission ( like the Plaintiffs’ fai lure to address personal jurisdic t i on in their omnibus respo n se) was evidently nothing
more than an understanda ble oversight in a complicated case
involvin g m ore than thirty defendants filing multiple ( a n d often

overlapping ) motions to dism i ss and where th e Isken Defendants were the only p a rt ies to seek dismissal f o r lack of personal jurisdiction . After all, the D istrict Court did not (as the Isken
Defendan ts appear to suggest) indicate that it was “dismissing
the Isken Defendants based on l ack of timely o pposition to the
Isken Defendants’ Mo tion to Dismiss and Loc a l Rule of Civil Procedure 7.1(c)” 6 ( id. at 12 )

. O n the contrary, the District
Court considere d t he Isken Defendants’ arguments about the lack of general and specific jurisdiction and determined that they do not possess the requi s it e c ontacts with the f o r u m s t a t e f

or jurisdiction on such grounds. It did so even though the Isken
Defendants had poin ted out in their reply brief that the Plaintiffs’ omnibus response did not respond to their arguments about general and specific jurisd i ct ion and asked the Distr i ct Court to dismiss the first amended complaint as uncontested

6 Eastern District of Pennsylvania Local Rule 7.1(c) states that, “[i]n t he abse nce of timely response, t he mo tion ma y be granted as uncontested except as provided under Fed.R.Civ.P [sic] 5 6

. ”18 pursuant to Local Rule 7.1(c). 7

We likewise limit our ruling to this threshold issue of personal jurisdiction

. G e n e r a l l y , w e may affirm on any ground supported by th e record, and an appell e e may urge affirmance o n such a ground even if the district court overlooked it or it
involves an attack on the district court’s reasoning. S ee, 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 1 0 46, 1048 (3d Cir. 1993). However, t he District Co urt granted the Isken
Defendants’ motion und er Rule 12(b)(2) for “lack of personal jurisdiction”

— a n d no t p u r s u a n t t o R ule 12(b)(6) for “failure t o state a claim a claim u pon which re lief can be granted.” C f, e.g. , EF Operating

, 993 F.2d at 1048

- 49 ( distin guishing between dismissal for lack of perso nal jurisdiction and grant of summary judgment on merits and concludin g th at, where appellant files

a ppeal from summary judgment, appel lee must cross

- appeal to

7 According to the Isken Defendants , Plaintiffs could
have addressed the D istrict C ourt ’s dismissal of the Isken Defendants on persona l jur isdiction grounds by filing a time ly

mo ti on for reconsideration

. At l ea st in retrospect, such a motion

w ould ha ve been an appropriate and ef fi cient way to emphas ize
to the District Court

— and obtain a rul ing on

— the issue of personal jurisdiction under t he RICO prov ision before the case

wen t for wa rd against the other defendants (and the order was
certified as a final judgment under Rul e 54(b) as to the Isken
Defendants ) . However, the Isken Defendants do not indicate
that s uch a motion is required for u s to consider the issue of personal jur isdicti on on appe a l . We also note that th e Isken
Defendants did not seek reco nsideration of the order granting
Plaintiffs’ motion for leave to file the sur

- reply.19 c o ntest denial of motion to dismiss for lack of pers onal jurisdiction). In fact, the District C our t denied the various Rule 12(b)(6) motions to dismiss “referenced i n th e above Order, ” finding tha t “Plaintiffs’ claims survive a Ru le 12(b)(6) motion. ” (JA1 8 .) A t this stage :

[ A ] ccepting Plaintiffs’ length y allegations as true, this Court concludes th at Plaintiffs raise a plausible right to relief. Whether Plaintiffs h ave a claim for aiding and abet ting breach of fiduciary duty, civ il conspiracy, RICO, fra ud, 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 W e also do not overlo ok the procedural posture of
Plaintiff s’ current appeal. The Dis tri ct Court designated its interlocutory order as a final judgment as to the Isken Defendants pur sua nt to Rule 54(b). In their successful Rule 54(b) motion, the Isken Def endants acknowledged that

“ Plaintiffs’ claims against the rem aining defendants are

co nti nuing, with written discovery scheduled to concl ude on June 1, 2018.” (E.D. Pa. Docket Entry #19 5

- 1 at 2 (citing E.D.

8 Transferring the MJL claims, the Dist rict Court

o bse rved that , “[b]ecause MJL and Laur el Gard ens agreed to the
Eastern District of Virginia as their forum, this Cou rt does not
address the merits of MJL’s motion to dismiss for fail ure to state a clai m.” (JA21.) The District Court did not make this sor t of

s tatement in its discussion of the Isken Defendants’ motion to
dismiss.20 Pa. Docket Entry #158 at ¶ 1) (noting no tria l da te has been set).) They em

phasized the fact that they “we re the only
defendants dism iss ed in the action on the basis of personal jurisd iction, and the basis for their dismissal is f act ually unique
to them

. ” ( Id. at 5 .) Under these circumstances, we limi t ourselves to this “unique ” basis. 9

B. Personal J urisd ict ion under the RICO Pro vis ion

T h e r e is a circuit split regarding which sp ecific
subsection of the RICO provision governs t he exercise of personal jurisdiction i n t h i s c a s e . Plaintiffs recognize that two
circuits (the Fo urth and the Elevent h Circuits) hav e looked to § 1965(d). According to the Eleventh Circuit, “Section 1965(d ) of
the RICO statute pr ovides for service in any judicial district in
which the defendant is foun d.” Republic of Panama v. BCCI Holdings (Lux.) S .A. , 119 F.3d 935, 9 42 (11th Cir . 1 997).
“When a federal statute provides for nationwide service of

process, it becomes the statutor y basis for personal juri sdiction.”
Id. (citing In re Chase & Sanborn Cor p. , 835 F.2d 1341, 1344 (11th Cir. 1988), rev’d o n other grounds sub nom

. Granfia nci era, S.A. v. Nordberg

, 492 U.S. 33 (1989); Lisak v. Mercantile Bancorp Inc

. , 834 F.2d 668, 671 (7t h Cir. 1987)). Citing Re public of Panama , the Fourth Circuit rea ched the same
conclusion. ESAB Grp. , Inc. v. Centricut, I nc. , 126 F.3d 61 7,

9 Plaintiffs argu e that the District Court erroneously dismissed the claims against Don Isken because he (unlike Paul
Isken and IE) did not s eek dismissal based on the absence of

pe rsonal ju ri sdiction. We d o not ad dress t his argument because
we determin e tha t the District Court possesses per sonal jurisdiction over all three of the Isken Defendants.21 626 (4th Cir. 19 97). Five circuits (th e Second, Seventh, Ninth, Tenth, and D.C. Circuits) have stated that subsec tion (b) governs
nation

- w ide service of process and personal juri sdict ion over “other parties

. ” 10 See FC Inv. Grp. v . IPX M arkets, Ltd. , 52 9 F3d 1087, 1098

- 11 00 (D.C. Cir. 2008) Cor y v. Aztec Steel Bldg., Inc. , 468 F.3d 1226, 1229

- 3 3 (10th Cir. 2006); PT U nited
Can Co. v. Crown Co rk & Seal Co. , 138 F.3d 65, 70

- 72 ( 2d Ci r. 19 98) ; Lisak

, 834 F .2d at 671

- 72 ; Butcher’s Union Local No.
498 v. SDC Inv., Inc. , 788 F.2 d 535, 538

- 39 (9th Cir. 1986).

We a g r e e w i t h the majority approach. We do so b a s e d o n the langu age and structure of the RICO provision itself a s w e l l

a s the relative a b s e n c e o f r e a s o n i n g i n s u p p o r t o f t h e minority posi tion. The histo ry of the legis lat ion a n d our own prior ca se law provide f

u r t h e r s u p p o r t for t h i s m a j o r i t y a p proach.

10 We note that the Seventh Circuit has pointed (in passing) to subsecti on (d) a s aut horizing nation

- wide servi ce of

pr ocess. See Cent. States, Se. & Sw. Areas Pension Funds v. Reimer Express Worl d Cor p. , 230 F.3d 934, 940

- 41 (7th Cir.
200 0 ); Robinson Eng’g Co. Pension Plan & Tr. v. George , 223 F.3d 445, 449 & n.1 (7t h Cir. 2000). H ow eve r, there are other
Seventh Circuit decisi ons pointing to subsection (b) (including
Lisak , which d id address the statutory provision with a little more depth than either Central States or Robinson Engineering ) ). See Lisak , 834 F.2d at 671

- 72; Stauffac he r v

. Bennett , 969 F.2 d 4455, 460

- 61 ( 7th Cir . 1992), superseded by rule on other grounds as stated in Cent. S tates

, 230 F.3d at 938. Robinson Engineering also cited t o Stauffacher ’s reference to subsection (b). Robinson Eng’g , 2 23 F.3d at 449 (citing
S ta uff acher , 96 9 F.2d at 460

- 61)

.22 “The first fe deral appellate court to actually analyze §
1965’s full text an d offer reasoning for its choice of subsections
was the Seco nd Circui t” in PT United

. Cor y , 468 F.3d at 1230 (footnot e omitted) . The Second Cir cuit persuasively explai ned
the function of each subsection as part of a single coherent
framework for RICO act ions

. See, e.g.

, FC Inv. , 529 F.3d at 1099 (“Having conside red the a rguments of the parti es, as well as the reasoning of our sister circuits on the question, we are

per suaded to adopt the Seco nd Circuit’s reasoning.”) ; Cory , 468
F.3d at 1231 (“We find [th e Second Circuit’s] reasoning persuasive and consistent with congress ional intent.” (footn ote omitted) )

. Specifically :

Section 1965 makes sense only if all of its
subse ctions are read together . Neither the district

c ourt’s opinion n or the briefing of the parties discusses § 1965(a) and (c), but we find these

sect ions to b e equally important to a coherent understanding o f the meaning and functioning of the statute, parti cularly for the purpose of interpreting the terms “other parties” and “other process” i n §§ 1965(b) and (d), respectively.

Reading all of the sub sections of § 1965 together, the court finds that § 1965 d oes not provide for nationwide jurisdiction over ev ery defendant in every c ivil RICO case, no matter
where the defen dant is found. First, § 1965(a) grants personal jurisdiction over an initial
defe ndant in a civil RICO case to th e district court
for the d istrict in which that person resides, has an
agent, or transacts his or her affairs. In other23 words , a civil RIC O action can only be b rought in a district court where personal jurisdiction based

on minim um contacts is establis hed as to at least
one defend ant.

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 ad dit ional counter

claim defend ants. This jurisdiction is not automatic but requi res a showing that the “ ends of justice ” so requi re. This is an unsurprising
limita tion. There is no impediment to prosecution
of a civil RICO ac tion i n a court foreign to so me defendants if it is necess ary, but the first preference, as set forth in § 19 65(a), is to bring
the a ction where suits are nor mally expecte d to be brought. Cong ress has expressed a preference in § 1965 to avoid, where possi ble, h aling
defendants into f ar flung fora.

PT United , 13 8 F.3d at 71

- 72 (footnote omitted) . Going further, subsection (c) “simply refers to service of subp oenas on witn esses ”

— specifically in civ i l or criminal actions or proceedings instituted by the gov ernmen t

. Id. Finally,
“subs ect ion (d)’s reference to ‘“a ll other process”’ must mean process different than a summons or a governme nt subpoena,
both of whic h are dealt with in previous subsec tions.” Cory

, 468 F.3d at 1230 (quoting PT United , 138 F.3d at 72). A s t h e S e c o n d C i r c u i t e x p l a i n e d :24 This interpretat ion, one which gives meaning to
the word ‘other’ by read ing sequentially to
understand ‘other’ as meaning ‘ di fferent from that already s tated in subsections (a)

- (c),’ gi ves coherent effect to all sections of § 1965, and
effect ive ly provid es for all eventua lities without rendering any of the sections duplic ative, without impeding RICO actions and without unnecessa rily burdening parties.

P T United , 138 F.3d at 72 (“We con clude that the natural reading given to § 1965(b) by the 9 th Ci rcuit in Butcher’s Union and the district court here was correct, and that t his conclusion is borne out by a complete reading of the statute, a course of acti on which has not be e n followed by the courts that have read § 1965(d) in isolation to reach t he oppo site c onclusion.”)

.

In contrast, the c i r c u i t c o u r t s a d o p t i n g t h e m i n o r i t y

a p p r o a c h did not offer a d e t a i l e d e x p l a n a t i o n f o r t h e i r s e l e c t i o n

o f subsection (d)

. The Eleventh Cir cuit “did ‘ not pause long

over

. . . the question,’ and oddly, it cited Lis ak [w hich
ident ified subsect ion (b) as creating personal jurisdiction] for

supp ort.” Cory , 468 F.3d at 1230 ( q u o t i n g Republic of Panama

, 1 19 F.3d at 942); see also , e.g. , PT United

, 138 F.3d at 70 (“[A] nother circuit court stated in conclusory terms th at §
1965 (d) provid es for natio nwide service of process.” (citing Republic of Pana ma , 119 F.3d at 942)). Without mentioning subsection (b ), t he Fourth Circuit indicat ed that subsection (a)
authorizes venue while subsection (d) authorizes service of

proces s “ eviden cing Congr ess’ desire that ‘[p]rovision [be]
made for nationwide venue an d service of process. ’ ” ESAB Grp. , 126 F.3d at 626 (quoting H. Rep. No. 91

- 1549, at 425 (1970), reprinted in 1970 U.S.C.C.A.N. 4007, 4010); see also,

e.g. , Cory , 468 F.3d at 1 230 (noti ng that Fou rth Circuit did not mention contrary position of Seventh and N inth Circuits).

In fact, the history o f t h e R I C O p r o v i s i o n p r o v i d e s

a d d i t i o n a l s u p p o r t for the majority a p p r o a c h

. In the report cited by the Fourth Circuit, the House Judi c iar y Comm ittee st ated that

“ [s] ubsection (b) provides nationwide service of proces s on parties, if the ends of justice require it, in actio ns under Section
1964” w h i l e “[s]ubsection (d) provides that all ot her process in actions under the chapter may be s e rve d wher ever the p erson reside s, is found, has the agent, or transacts his affair s.” 1970
U.S.C.C.A.N. at 4010 (further s tating that subsection (a)
establishes venue for civil proceedin gs while subsection (c) provides for nationwide subpoena power for w i tne sses i n civil

or criminal pr oceedings but requires good cause for issuance if

w itness in civil action resides in anothe r district and at place
more than 100 miles f

rom court )

. The com mittee further explained that “[S]ection 1965 contains broad provisi o ns regard ing venue and process, which are modeled on present antitrust legislation .” Id. ; see also , e.g. , Cory

, 468 F.3d a t 1231 (discuss ing committee report)

. For i nstance, the Clayton Act provides that “[a]ny suit, action, or proceeding under the
anti t rus t laws against a corporation may be brought not only in the judicial district w hereof it is an i nhabitant, but also in a ny district wherein it may be found or trans acts business; and a ll process in such cases may be served in the district of which it i s

an inhab itant, or wherever it may be found.” 15 U.S.C. § 22.
Like the RICO prov ision , the Clayto n Act then authorizes “o ther parties” to be served if “the ends of j ustice” so require:

The several district courts of the United States are26 invested with j u ri sdictio n to prevent and restr ain
violation s of this Act, and it shall be the dut y of
the several United States attorneys, in their respective districts, under the di rection of the
Attor ney General, to institute proceedings in equity to prevent and rest r a in such v iolations. . . .
When ever it shall appear to the court before which any such proceeding m ay be pending that
the e nds of justice require that other parties
sh ould be brought befo re the court, the court may cause them to be summoned whether they r e si de
in t he district in which t he court is held or not, and subpoenas to that end may be served in any district by the mars hal thereof.

15 U.S.C. § 25; accord 15 U.S. C. §§ 4, 5 (Sherman Act); 15 U.S.C. §§ 9, 10 (Wilson Ta riff Act). The Fourth Circuit

a p p ro priatel y t u r n e d t o Justice Ja ckson’s summary of the
antitrust s t a t u t o r y scheme i n which he explained that, before “‘other parties’” may be properly served, “‘it must be made to appear to the cour t that the ends of justice require that they b e brought b e for e the c ourt , in which case th ey 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) (Ja ckson, J., concurring in result ), superseded by statute o n o t h e r g r o u n d s a s

s t a t e d i n T r ott er v. 7 R Holdings , 873 F.3d 4 35 (3d Cir. 2017) ).

Finally, we p r e v i o u s l y i d e n t i f i e d § 1965(b ) a s the
subsection governing servic e of process and personal jurisdicti on in this context. In explaining why a venue provision applicable to civil for feitur e pr oceeding s, see 18 U.S .C. §
981 (h), does not authorize nation

- wide service of proc ess (and27 thereby would not permit the district co urt to exercise in rem jurisdiction where the r es is located outside the district), we observed that Congress has re cogniz e d i n o t h e r i n s t a n c e s the

ut ility of a s p e c i f

i c provision authorizing nation

- wide ser vice of

process

. United States v. C ontents of Ac count No . 3034504504

, 971 F.2d 974, 982 (3d Cir. 1992)

. We offered subsection (b) o f the RICO statutory provision and the Sh e rman Act as example s

o f l e g i s l a t i o n e x p r e s s l y a u t h o r i z i n g n a t i o n

- w i d e s e r v i c e :

As ide from the Commodity Exchange Act, Congress has expressly provided for nationwide

s ervice of process in the civil Racketeer
Influenced an d Corrupt Organizations Act, se e 18
U.S.C.A. § 1965(b) (West 1984) , t he 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 Securi ty Act,

see 29 U.S.C.A. § 1132( e )(2 ) (West 1 985). See [ United Sta tes v. 11205 McPherson Lane , 754 F. Supp. 14 83, 148 8 (D. Nev. 1991).]; see also Lea Brillmayer & Charles Norchi, Federal
Extraterritoria lity and Fifth Amendment Due

Process , 105 Harv. L. Rev . 1217, 1220 n.14 (1992) (notin g na tionwide service of process

pro vid ed for in Arbitration Act, 9 U.S.C.A. § 9 (West 1970) and Sherman Act, 15 U.S.C.A. § 5 (West 1 973); Howard M. Erichson, Note,
Nationw ide Personal Jurisdiction in All Federal Question Case s: A New Rule 4 , 64 N.Y.U. L.

R ev. 1117, 11 23 n.30 (1989) (listin g a nother twelve nationwide statutes providi ng for28 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
ref e ren ce in a s tring citat ion.” (App ellants’ Brief at 19 .) However, this reference, br ief as it may be, should not be
overlo oke d out of hand

— especially whe r e it is consi st ent with the statutory language and structure, the existing case law, and

t h e history o f t h e statu t o r y p r o v i s i o n a t i s s u e

.

Accordingly, “[w]hen a civil RICO acti on is brought in a
district co urt where personal ju risdiction can be established over at least one defendant, summonses can be served nationwide on
other defendants if r e qui red by the ends of justice.” Co r y , 468
F.3d at 1226. Plaintiffs a s s e r t that there are two requirements
tha t must be s a t i s f

i e d under subsection (b) “to establish perso nal jurisdiction over a defendant not meeting the minimum contacts requirements.” ( A ppe llants’ Br ief at 23.) Accor ding to
P l a i n t i f f s , t hese r e q u i r e m e n t s are: (1) “[a]t least one of the other
defendants must meet the t ra ditional per sonal jurisdiction

req uirements ” ( id. at 24); and (2) “[t]he ‘ends of justice’ must require that the distr i ct court in t his case is the on e in which this
case should be tried” based on “ the sta tutory language in Section 1965(b), which courts ha ve held to require ‘that there is no other district in which a court will have [traditional] personal jurisdiction ove r al l of the a lleged co

- conspira tors ’” ( id. (quoting Butcher’s Union

, 788 F.2d at 539).

The structure of § 1965 as well as the “other pa rties” language of s u b s e c t i o n ( b ) clearly require the presence of at
least one defendant that meets the traditional c o n t a c t s t e s t

. With the apparent exce ptio n of the Seventh Circuit, see Lisak

, 83429 F.3d a t 671

- 72, the circuit courts f o l l o w i n g the m aj ority approach have adopted this requir ement. See FC Inv. , 529 F.3d
at 1098

- 1100; Cory , 468 F.3d at 1229

- 33; PT United

, 1 3 8 F .3d
at 70

- 7 2; Butcher’s Union , 78 8 F. 2d at 538

- 39.

As Plaintiffs recognize, t he Ni nth Circuit held that the plaint iff mus t a l s o establish t hat there is no other distri ct court that would have traditional personal jurisdiction over all of the
defenda nt s. Butcher’s Union , 788 F.3d at 53. As the Seventh Circuit put it, “ Secti on 1965(b) a uthorizes nationwide service so
that at least one court w ill have jurisdiction over e veryone connected with any RICO enterprise. ” Lisak , 834 F.3d at 672.

“ A district c our t in Indian a will have that juris dict ion whether or
not Widmar can be br ought before the court in Illinois, so perhaps th e ends of justice do not ‘requi re’ his presence in this
suit.” Id. W e note, however, that the Tenth Circuit rejected the
Butcher ’s Un ion require ment , instead holding “tha t the ‘ ends of justice’ analysis is not control led by the fact that all defendants

ma y be amendable to su it in one forum.” Cory , 468 F.3d at
1232. The Cory court did not “offer a competing definition, as
the ‘end s of justice’ is a flexible concept un iquel y tailored to the
facts of each cas e.” Id. “ And in the current case, we have Cory’ s assertion that the ends of justice require nat ionwide service simply because he has sustained damages and litigation
costs in K an sas . We conclu de, as a matter of la w, th at such facts, standing alone, do n ot satisfy the ‘ends of justice’
standard.” Id. (noting that plainti ff did not claim financial
i mpediment to suit in defendants’ home state). Furthermore, the
Second and D.C. C ir cui ts h a v e refr ained from deciding w hat t he “ends of justice” require. FC Inv.

, 529 F. 3d at 1100 & n

. 1 4 ( r e f r a i n i n g f r o m o p i n i n g o n meanin g of “ends of justice” language because d istrict court lacked traditional personal30 jurisdiction over sole defendant ); PT United , 138 F.3d a t 72 n.5 ( “As indicated, the st atute does not sp ecify what ‘the ends of justice’ are , but, as indicated, UCC does not challenge the district court’s finding t hat the ends of justice do not in this case require § 1965(b) jurisdiction o ver the individual def endants.
The district court fo llowed Butcher’s Union , 788 F.2d at 538

- 3 9,
in findin g ‘the ends of justice’ to refer to a case in which there is
no district w ith personal jurisdiction over all defendants.
Because the individual def en dan ts work in Pennsylv ania for

Penns ylvania corporati on Crown, the dis trict court found that

t he ends of j ustice did not require personal j urisdiction over the
individual defendant s in New York under § 1965(b).”).

N e v e r t h e l e s s , t he parties i n t h i s c a s e do no t recognize this

co nflict

. W e ne ed not

— and do not

— decide whethe r the Ninth
or the Tenth Ci rcuit is correct because, as we expl ain b e l o w , Plaintiffs e s t a b l i s h both th at no other district would have
traditional jurisdiction over all defendants and that t he exercise of jurisdi ction satisf

i e s a flexible understanding of t he “ends of justice.” 11

We ar e satisfied that Plaintiffs sati sfy the statutory requirements

— w h i c h t h e I s k e n D e f e n d a n t s t h e m s e l v e s d o n o t b r i e f o n a p p e a l

. While all eging a multi

- state sc he me implicating
several Del aware and N ew Jersey defendants (and one V irginia defendant (MJL))

, P l a i n t i f f s identify roughly half of the thirty

t hree defendants as Pennsylvania residen ts or Pennsylvania entities with their respective plac es of business in P en nsy lvania.

11 We likewise need not

— and do not

— decide whether a plaintiff must specifi cally allege “a multidistrict conspiracy” or “sing le nationwide RICO conspiracy” encompassing the
defendants. See, e.g.

, Butcher’s Union

, 78 8 F .2d at 53 9.31 Except for the Isken Defe ndants, none of the defendants moved
to dismiss on the gro unds of a lack of personal jurisdiction (not even MJL, which did move on venue grounds ). A s the District Court recognized in its venue discussion , “al most all o the r parti es are Pennsylvania residen ts.” (JA20.) “Plai ntiff s’ allegations focus on a ‘hub

- and

- spoke conspiracy’ between the

McKe nnas and all named Defendants against Plaintiffs” ( JA19), and “[e]vents giving rise to this action

– the hub

- and

- spoke

consp ir acy

– are centered in Pennsylvania” ( JA20).
S p e c i f i c a l l y , “ t h r e e o f t h e f

o u r b u s i n e s s

- P l a i n t i f

f s [ L G

, A W S

,

a n d L G S M ] a r e P e n n s y l v a n i a e n t i t i e s ( t w o L L C s a n d o n e
g e n e r a l p a r t n e r s h i p )

, o n e [ L G H ] i s a D e l a w a r e L L C

, a l l h a v e
p r i n c i p a l o r r e g i s t e r e d p l a c e s o f b u s i n e s s w i t h i n P e n n s y l v a n i a ,

a n d t h r e e [ L G

, A W S

, a n d L G S M ] c o n d u c t e d b u s i n e s s w i t h i n P e n n s y l v a n i a

. ” ( A p p e l l a n t s ’ B r i e f a t 2 8 ( c i t i n g J A 7 0 )

. ) In fact,
th e ame nded complaint al lege d that, while Timothy McKenna is
believed to be a resident of Delaware, h is so n ( the other p e r s o n at the a l l e g e d c enter of the conspiracy), Michael McKenna, is
believed t o be a Pennsylvania resident. According to the
Plai ntiff s’ pleading, “TIM OTHY McKENNA and MICHAEL

Mc KENNA also directed snow removal services to the [Isken

De fe nda nts’ ] h otels and DON ISKEN’ [ s i c ] home with no intention of billing DON ISKEN.” (JA95

- JA96. ) Furthermore,

“ [c]ounsel for the Company, SNYDER and FAL C ONE o f
SAUL EWING were advising TI MOTHY MCKENNA on how
to handle this situ ation with ISKEN.” (J A 96. ) A l l e g e d l y , S a u l

E w i n g i s a Pennsylva nia limited partnership with its principal place of b usine ss l o c a t e d in P h i l a d e l p h i a , P e n n s y l v a n i a , w h i l e S nyder and Falcone maintain thei r offi ces at t hat locat ion.
C o n s i d e r i n g this Pennsylvania focus, no o t h e r dist ri ct court would hav e had traditional j urisdiction over all of the numerous
defendants in this ac tion. Given t he obvious proximity between32 Delaware and the Eastern District of Pennsyl vania, “exercising personal jurisdiction over the Isken Defendants in th is ca se does

not com promise the Second Circuit’s recognition of Congress’s preference ‘to avoid, where possible, ha l ing defendants into far flung fora.’” (Appella nts’ Brief at 29 (quo ting P T U n i t e d

, 138 F.3d at 72).) In the end, Plaintiffs alleged that a t l e a s t o n e Penn sylvanian i s “ a t t h e c e n t e r o f a c r i m i n a l e n t e r p r i s e ” ( J A 7 7 ) targeting Pennsylva nia plaintiffs and i nvolving numerous other Pennsylvania defendants as well as s e v e r a l defenda nts from neig hboring states . Under the circumstances, the “ends of ju stice” call for the exerci se of ju risdiction over the three out

- of

state Isken D efendants.

“Whe r e Congress has statutorily authorized na tionwide service of process, such service establis hes pe rsonal jurisdiction, provided that the federal court’s ex er cis e of jurisdict ion
comports w ith Fif

th 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
Automo tive Refinishing Paint Antitrust Litig.

, 358 F.3 d 28 8,
297

- 99 (3d Cir . 2004); Pinke r , 292 F.3d at 368

- 71

. Having determined that “the ends of justic e require” the Isken Defendants “be brought before” the District Court under § 1965(b), we hav e no d ifficul ty concluding that the District
Court’s exercise o f per sonal jurisdic tion over them compor ts with the Fifth Amendment. In this context, we are not l imited to
the defendant’s contacts with the forum state and instead
consider contacts with the natio n as a whole. See, e.g.

, Automotive Refinishing , 358 F.3 d at 297

- 99; Pinker , 292 F.3d at
368

- 71. D o n I s k e n a n d P a u l I s k e n are b o t h Delaware residents
whil e IE is a Delaware limited liability company with its principa l place of business in Newark, D elawar e. “Once33 minimum contacts have been established, we asse ss wh ether the exercise of person al ju ri sdiction is consistent with ‘traditional notions of fair pl ay and substantial justice.’” Pinker , 292 F.3d at 370 (quotin g Int’l Shoe Co. v. Washington

, 326 U. S. 310, 316 (1945) ) (notin g , inter alia

, e x i s t e n c e o f dis pu te not raised by parties as to wh ether fairness pro ng of analysis applies in
context of federal s tatute authorizin g nation

- wi de service of process and s t a t i n g t h a t w e n eed not concern o u r s e l v e s w ith propriety of litigating in district court at issue vis

- à

- vis other district courts); see a lso, e.g. , ESAB Grp. , 126 F.3d at 626

- 27; Republic of Panama , 11 9 F.3d at 942

- 48

. Unlike the traditional approach, t his inquiry focuses less on federalism conc erns a nd
more on the national interest in furthering the poli ci es of the
federal statute at iss u e. S ee, e.g. , Pinker

, 292 F.3d at 370.

The District Court’s ex ercise of personal jurisdiction over
defendants from a neighboring state does not offend traditi onal

n otions of fair play and substantial justice. “[W] e b el iev e that
the national interest in furt hering the policies of the [federal
anti

- racketeering statut e e n a b l i n g a s i n g l e d istrict court to
exercise personal jurisdiction over all defendants] milita tes in
f avor of exercis ing personal jurisdiction over [the Is ken Defendants].” I d

. at 372; see also , e.g. , ESAB Grp. , 126 F.3d at 627 (concluding that exercise of jurisdiction comported with
Fifth Amen dment because of absence of any evidence of such

extre me inconve nience or unfairness as would outweigh congressio na lly articulated polic y and that dictate s of judicial efficiency did not so strongly weigh against f orum that constitutional due process would be offended); Republic of

Panama , 119 F.3d at 94 8 (fi nding that defendants failed to present compelling case tha t lit igating action in forum would put
th em at severe disadvantage because defendants were large34 corp orations providing banking services to customers in major metropolitan areas alo n g eastern seabo ar d, fact they may have no significant contact with Florida w as insufficient to re nder
forum state u nreasonably inconvenient

, n e c e s s i t y o f world

- wide
discover y indicated that Florida was no more inconven ient than any other district, a n d defendants pres ente d no evidence t hat ability to defend would be significantly c omp romised) ; L isak

, 8 34 F.2d at 672 (“S ection 1965(b) authorizes nationwide service
so that at leas t one court will have jurisdiction over everyone connected with any RICO enterprise .”)

.

C. P ende nt Personal Jurisdiction

In addition to the RICO claims, Pl ai nti ffs ass erte d s e v e r a l
state law clai ms against the defendants (includi ng the Isken Defendants). We agree with Plaintiffs that the doc trine of pendent (or supplemental) personal jurisd iction a pplies in this

case.

This Court recognized the notion of pen den t p ersonal ju risdiction more than f orty years ago in Robinson v. Penn
Central Co. , 484 F.2d 553 (3d Cir. 1973). We explained:

Analys is should begin, we think, with the
fact that in t he Secur ities Act of 1933 and the Securities Exchange Act of 1934 Con gre ss h as bestowe d upon the United Stat es District Courts the power to ex tend their writ extraterri torially so as to compel a personal appearance before them.
Once the defendant is bef ore the co urt, it matters little, from the point of view of procedur al due

p rocess, th at he has become subject to the court’s35 ultimate judgmen t as a result of territorial or extraterritorial process. Looke d at from this standpoint, the issue is not one of territori al in personam jurisdiction

— that has already been

answere d b y t he statutes

-- but of subject matter j urisdiction. It is merely an as pect of the basic pendent ju risdiction problem. In United M i n e W o r k e r s v. Gibbs, [383 U.S. 715 (1966)], the Supreme Cour t recogniz ed that a discretionary approach should be taken in co nsi dering w hether

to e ntertain pendent claims. Justification for
entertainin g such claims “. . . l ies in considerations of judicial economy, convenience,
and fairness to litigants; if these a re not pre sent a federal court should hesitate to exercise ju ris dic tion ove r state cla ims . . . .” [38 3 U.S. at 726]. Moreover, while the i ssue of power to

enter tain a suit for an in personam judgment on a pendent state law claim will ordinarily be
resol ved on the pleadings, the court remains free throughout the p roc eed ings to dismis s suc h a
claim if that seems the fairer course. [ Id. at 72 7.] In this case, reco gnizing that Cabot was properly
before it by virtue of extraterritorial service authorized by two feder al statutes, the district court properly weighed co nsi der ations o f judicial economy, convenie nce and fairness, and
concluded that it would entertain the pendent
claims. That course was within i ts power and the district court will also have power to dismis s the pendent claims in the future as noted above.36 Id

. a t 555

- 56 . Acknowle dging that the su pplemental jurisdiction
statute codif

ied 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 passi ng tha t the District Court lacks subject ma tter jurisdiction over the Pennsy lvania state law
claims in the absence of the RICO claims, the I sken Defendants do not dispute that the state law claims “are so r elated to” the claims under RICO “that they form p art of the same case or

co ntroversy under A rticle III of th e United States C onstitution

. ”

2 8 U

. S

. C

. § 1367 (a) . F urthermore, they do not suggest that the District Court would decline to exercise its jurisdi ction over these claims pursuant to the factors s et by Gibbs and 28 U.S .C. § 1367(b). In fa ct, the District Court denied the various mo tions
to dismiss the RICO c laims under Rule 12(b)(6). See §
136 7(c)(3) (“the district court has dism issed all claims ov er which i t h as original jurisdiction”). “Since the co urt has personal jurisdiction o ver th e defendants under service of process author ized by the Feder al Rule of Civil Procedure [4(k )(1)(C)] and by the RICO statute, we can find no
constitutional bar to r equiring t he defendants to defend the
entire cons tit uti onal case, which includes both federa l and state claims arising from the same nuc leus of facts.” ESAB Grp.

, 126
F.3d at 629.

III.

For the for egoing reasons, we wi ll vacate t h e o r d e r

e n t e r e d b y t h e D i s t r i c t C o u r t d i s p o s i n g o f t h e p a r t i e s ’ d i s m i s s a l

m o t i o n s t o t h e e x t e n t t h a t i t g r a n t e d t h e I s k e n D e f e n d a n t s ’

m o t i o n t o d i s m i s s f

o r l a c k o f p e r s o n a l j u r i s d i c t i o n u n d e r R u l e37 1 2 ( b ) ( 2 ) a s w e l l a s t h e D i s t r i c t C o u r t ’ s R u l e 5 4 ( b ) o r d e r i n s o f a r

a s i t d e s i g n a t e d t h i s p r i o r o r d e r a s t h e f i n a l j u d g m e n t a s t o t h e I s k e n D e f e n d a n t s

. This matter will be rema nded to the D istrict Court for further proceedings consistent with our opinio n.