UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

 

JOHN PETRUCELLI, : CIVIL NO: 4:14-CV-01214 

 : 

 Plaintiff, : 

 : (Judge Brann) 

 v. : 

 : 

KRISTIN RUSIN, : 

 : 

 : (Magistrate Judge Schwab) 

 Defendant : 

 : 

REPORT AND RECOMMENDATION 

I. Introduction. 

On June 24, 2014, pro se plaintiff John Petrucelli (“Petrucelli”), a federal 

prisoner currently serving a life sentence of imprisonment at FCI-Allenwood, 

initiated this Bivens1 action by filing a complaint (Doc. 1) against Kristin Rusin 

(“Rusin”), a former court reporter with the United States District Court for the 

Southern District of New York. Petrucelli alleges violations of his rights under the 

 

1

 See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,

403 U.S. 388 (1971). In Bivens, the Supreme Court recognized a private cause of 

action to recover damages against a federal agent for violations of constitutional 

rights. “A Bivens action, which is the federal equivalent of the [42 U.S.C.] ' 1983 

cause of action against state actors, will lie where the defendant has violated the 

plaintiff=s rights under color of federal law.@ Brown v. Philip Morris Inc., 250 F.3d 

789, 800 (3d Cir. 2001). 

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First and Fifth Amendments to the United States Constitution. On March 17, 

2015, Rusin filed a motion to dismiss Petrucelli’s complaint for failure to state a 

claim and for lack of personal jurisdiction (Doc. 21). Rusin’s motion is ripe for 

disposition. 

II. Background and Procedural History. 

The relevant facts alleged in Petrucelli’s complaint are as follows. In 2002, 

Petrucelli’s was sentenced to life imprisonment without parole. Doc. 1 at 4. Rusin 

was the court reporter at the specific criminal hearings referenced in Petrucelli’s 

complaint. Id. at 1. 

According to Petrucelli, around May or June 2014, he hired Neal Gossett, a 

private investigator, to go to the court reporter’s office (presumably that of the 

United States District Court for the Southern District of New York) and obtain the 

recordings of three criminal hearings that occurred on February 1, May 21, and 

October 2, 2002, respectively. Doc. 1 at 4. According to Petrucelli’s account, 

some dialogue exists in the audio recordings of these hearings that is not contained 

within the transcripts of the same hearings. Id. 

Petrucelli alleges that Rusin’s alteration or incomplete transcribing of the 

aforementioned hearings directly led to his inability to effectively raise certain 

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issues on appeal and, therefore, the affirmance of the life sentence he is currently 

serving. Doc. 1 at 5. Petrucelli contends that these deficiencies amounted to 

violations of the First Amendment to the United States Constitution and the Fifth 

Amendment, specifically the Due Process Clause, and he seeks $3 million in 

damages for the “irreparable” harm he has allegedly suffered. Id. at 1, 3. 

Rusin, who currently resides in Nevada, filed a motion to dismiss 

Petrucelli’s complaint, alleging that this Court lacks personal jurisdiction over her, 

that Petrucelli fails to state a claim upon which relief may be granted, and that 

Petrucelli’s claim is time barred. Because we conclude that this Court does not 

have personal jurisdiction over Rusin, we will not address Rusin’s assertions that 

Petrucelli’s complaint fails to state a claim and is untimely. 

III. Rule 12(b)(2) and Personal Jurisdiction Standards. 

A defendant may raise the defense of lack of personal jurisdiction in a 

motion to dismiss in accordance with Fed.R.Civ.P. 12(b)(2). “Once a defendant 

challenges a court’s exercise of personal jurisdiction over it, the plaintiff bears the 

burden of establishing personal jurisdiction.” D'Jamoos ex rel. Estate of 

Weingeroff v. Pilatus Aircraft Ltd., 566 F.3d 94, 102 (3d Cir. 2009). Unless the 

court holds an evidentiary hearing, at the motion-to-dismiss stage the plaintiff need 

only establish a prima facie case of personal jurisdiction. Miller Yacht Sales, Inc. 

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v. Smith, 384 F.3d 93, 97 (3d Cir. 2004). Under a prima facie standard, “the 

plaintiff’s allegations are presumed true and all factual disputes are resolved in the 

plaintiff’s favor,” but “the ultimate burden remains on the plaintiff to demonstrate 

the existence of jurisdiction by a preponderance of the evidence.” LaSala v. Marfin 

Popular Bank Pub. Co., Ltd., 410 F. App'x 474, 476 (3d Cir. 2011). The plaintiff 

establishes a prima facie case “by ‘establishing with reasonable particularity 

sufficient contacts between the defendant and the forum state.’” Mellon Bank 

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

Provident Nat’l Bank v. California Fed. Sav. & Loan Ass’n., 819 F.2d 434 (3d 

Cir.1987)). 

Federal Rule of Civil Procedure 4 authorizes a federal court to assert 

personal jurisdiction over a nonresident defendant to the extent permissible under 

the law of the state where the district court sits. Id. at 1221. The forum state in this 

case is Pennsylvania, and Pennsylvania law permits courts within Pennsylvania to 

exercise jurisdiction “to the fullest extent allowed under the Constitution of the 

United States” and provides that jurisdiction “may be based on the most minimum 

contact with this Commonwealth allowed under the Constitution of the United 

States.” 42 Pa.C.S.A. § 5322(b). Thus, this court may properly exercise 

jurisdiction over a defendant as long as the exercise of that jurisdiction does not 

violate the due process rights of the defendant. Mellon, 960 F.2d at 1221. 

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Proceeding to the constitutional inquiry, the “Due Process Clause of the 

Fourteenth Amendment requires that nonresident defendants have ‘certain 

minimum contacts with [the forum state] such that the maintenance of the suit does 

not offend traditional notions of fair play and substantial justice.’” Kehm Oil Co. v. 

Texaco, Inc., 537 F.3d 290, 299-300 (3d Cir. 2008)(quoting Int’l Shoe Co. v. 

Washington, 326 U.S. 310, 316 (1945)). “Having minimum contacts with another 

state provides ‘fair warning’ to a defendant that he or she may be subject to suit in 

that state.” Id. at 300 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 

(1985)). 

There are two types or personal jurisdiction—general jurisdiction and 

specific jurisdiction. Marten v. Godwin, 499 F.3d 290, 296 (3d Cir. 2007). 

“General jurisdiction exists when a defendant has maintained systematic and 

continuous contacts with the forum state.” Id. On the other hand, even in the 

absence of such systematic and continuous contacts with the forum state, 

“[s]pecific jurisdiction exists when the claim arises from or relates to conduct 

purposely directed at the forum state.” Id. “The central concern of [the] 

jurisdictional inquiry is the relationship among the defendant, the forum, and the 

litigation.” Max Daetwyler Corp. v. R. Meyer, 762 F.2d 290, 293 (3d Cir. 1985). 

The court conducts a three-part inquiry to determine whether it has specific 

jurisdiction over the defendant. O'Connor v. Sandy Lane Hotel Co., Ltd., 496 F.3d 

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312, 317 (3d Cir. 2007). “First, the defendant must have ‘purposefully directed 

[its] activities’ at the forum.” Id. (quoting Burger King, 471 U.S. at 472). “Second, 

the litigation must ‘arise out of or relate to’ at least one of those activities.” Id. 

(quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 

(1984)). Third, if the court finds that the prior requirements are met, it may 

consider additional factors to ensure that exercising jurisdiction would be 

consistent with ‘“fair play and substantial justice.”’ Id. (quoting Burger King, 471 

U.S. at 476 (quoting Int'l Shoe, 326 U.S. at 320)). 

IV. Discussion. 

Rusin asserts that this Court lacks personal jurisdiction over her because she 

is a resident of Nevada, has no contacts with the Middle District of Pennsylvania, 

and has engaged in no activity in the Middle District of Pennsylvania. We agree 

and conclude that this Court has neither general jurisdiction nor specific 

jurisdiction over Rusin. 

With respect to general jurisdiction, there are absolutely no facts to suggest 

that Rusin has had any contact with the state of Pennsylvania, yet alone continuous 

and systematic contact. In 2002, at the time of Petrucelli’s criminal proceedings, 

Rusin was a court reporter for the United States District Court for the Southern 

District of New York and resided in the state of New York. Since then, Rusin has 

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moved to Reno, Nevada. The facts plead, therefore, suggest only that Rusin has 

had continuous and systematic contact with the states of New York and Nevada 

since 2002. This Court, therefore, lacks general jurisdiction over Rusin. 

Additionally, this court lacks specific jurisdiction over Rusin because 

Petrucelli’s claims do not arise from conduct directed towards the state of 

Pennsylvania. The conduct of which Petrucelli complains is that of Rusin’s court 

reporting in the Southern District of New York. Thus, clearly the conduct was not 

directed at the state of Pennsylvania, but rather at the state of New York. 

Additionally, Petrucelli’s criminal proceedings all took place in the Southern 

District of New York. The only connection Petrucelli’s criminal proceeding has 

with the Middle District of Pennsylvania is that he is now, thirteen years after his 

conviction, serving a portion of his life sentence at FCI-Allenwood. Thus, we find 

that this Court does not have specific jurisdiction over Rusin. 

In Petrucelli’s brief in opposition to the motion to dismiss, he argues that 

this Court is the most appropriate setting for his action because it is the most 

conveniently located courthouse to FCI-Allenwood, his current place of 

incarceration. He alleges in general that bringing the lawsuit in New York or 

Nevada would be impracticable due to travel burdens that he would incur, and, 

therefore, in the interest of “justice and economy,” the action would most 

appropriately be brought in this court. Petrucelli’s arguments pertaining to 

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convenience, however, pertain to venue rather than personal jurisdiction, which is 

at issue in the current case. While personal jurisdiction and venue are “closely 

related concepts,” it must be noted that “important distinctions exist” between the 

two, and “the exercise of personal jurisdiction implicates constitutional, not merely 

statutory, concerns.” Heft v. AAI Corp., 355 F. Supp. 2d 757, 762 (M.D. Pa. 2005). 

Here, our conclusion that asserting personal jurisdiction over Rusin would be 

unconstitutional trumps Petrucelli’s convenience interest in pursuing his action in 

this Court. 

Given the facts above, we conclude that Petrucelli has not established that 

Rusin had the requisite minimal contact with the state of Pennsylvania, and, 

therefore, it has not been established that she has been provided with a fair warning 

that she may be subject to suit in this Court. As a result, asserting personal 

jurisdiction over Rusin would violate traditional notions of fair play and substantial 

justice, and we must refrain from so doing. 

V. Recommendations. 

Accordingly, for the foregoing reasons, IT IS RECOMMENDED that 

Rusin’s motion (Doc. 21) to dismiss for lack of personal jurisdiction be granted 

and that Petrucelli’s complaint be DISMISSED without prejudice. 

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The Parties are further placed on notice that pursuant to Local Rule 72.3: 

Any party may object to a magistrate judge's proposed findings, 

recommendations or report addressing a motion or matter described in 

28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the 

disposition of a prisoner case or a habeas corpus petition within 

fourteen (14) days after being served with a copy thereof. Such party 

shall file with the clerk of court, and serve on the magistrate judge and 

all parties, written objections which shall specifically identify the 

portions of the proposed findings, recommendations or report to 

which objection is made and the basis for such objections. The 

briefing requirements set forth in Local Rule 72.2 shall apply. A 

judge shall make a de novo determination of those portions of the 

report or specified proposed findings or recommendations to which 

objection is made and may accept, reject, or modify, in whole or in 

part, the findings or recommendations made by the magistrate judge. 

The judge, however, need conduct a new hearing only in his or her 

discretion or where required by law, and may consider the record 

developed before the magistrate judge, making his or her own 

determination on the basis of that record. The judge may also receive 

 

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further evidence, recall witnesses or recommit the matter to the 

magistrate judge with instructions. 

Submitted this 19th day of October 2015. 

S/Susan E. Schwab 

Susan E. Schwab 

 United States Magistrate Judge 

 

 

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