2007 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-22-2007

Marten v. Godwin

Precedential or Non-Precedential: Precedential

Docket No. 05-5520

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Recommended Citation

"Marten v. Godwin" (2007). 2007 Decisions. Paper 495.

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 PRECEDENTIAL 

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 05-5520

____________

CRAIG MARTEN,

Appellant,

 v.

HAROLD GODWIN, JACK E. FINCHUAM, RONALD

REGAN, DAVID SCHOLEWBURGER, THE UNIVERSITY

OF KANSAS, AND JAMES KLEOPPEL

____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(No. 03-cv-06734)

District Judge: Honorable Petrese B. Tucker

Argued November 9, 2006

Before: SLOVITER, CHAGARES and GREENBERG, Circuit

Judges.

____________

(Filed: August 22, 2007)

Stanley B. Cheiken (Argued)

261 Old York Road

Jenkintown, PA 19046

Counsel for Appellant
2

Steven K. Ludwig (Argued)

Fox Rothschild, LLP

2000 Market Street, Tenth Floor

Philadelphia, PA 19103

Counsel for Appellee

OPINION OF THE COURT

CHAGARES, Circuit Judge.

After being accused of plagiarism and expelled from an

internet-based educational program, Craig Marten filed a

complaint in the United States District Court for the Eastern

District of Pennsylvania alleging defamation in violation of state

law and retaliation in violation of the First Amendment pursuant

to 42 U.S.C. § 1983. He appeals from an order of the District

Court granting defendants’ motion for summary judgment for

lack of personal jurisdiction. Because Marten has not

established that the nonresident defendants expressly aimed their

conduct at Pennsylvania, we will affirm the District Court’s

dismissal of Marten’s claims. 

I.

The University of Kansas School of Pharmacy offers a

Non-Traditional Pharm.D. (NTPD) Program in which licensed

pharmacists can pursue advanced degrees. The course work for

the program is completed online. Students communicate with

their professors, who are primarily located in Kansas, by phone

and email. 

While living and working in Pennsylvania, Marten

learned about the University of Kansas NTPD program from his

coworkers. He visited the University of Kansas’ website, which

provided information about the program. Marten then submitted

an application to the program and was accepted in August of

2001. He deferred the start of his course work until the

following spring.
1

 Marten originally brought claims against two other

University employees, Jack Finchuam and David Scholewburger,

but those claims were terminated in the District Court and are not

part of this appeal. The University of Kansas is named as a

defendant under a theory of respondeat superior for the defamation

claim.

3

During the time Marten was enrolled, defendant Ronald

Regan was Director of the program, defendant Harold Godwin

was a professor, and defendant James Kleoppel was an associate

clinical professor.1

 The defendants never visited Pennsylvania

and never recruited Pennsylvania pharmacists to enroll in the

University’s program. 

Marten communicated with his professors via email,

frequently complaining about the grades he received. He sent

email messages to defendant Regan, appealing disputes he had

with professors. Marten also exchanged emails with Regan

regarding concerns he had about the program’s three-year time

limit for completing course work. 

Marten alleges he complained to a “Dean Sorenson” that

Regan was not responding adequately to his complaints.

Defendants assert that the School of Pharmacy does not have an

administrator by the name “Sorenson.” Shortly after purportedly

speaking with Sorenson, Marten claims he received a call from

Regan, in which Regan threatened to have Marten expelled from

the NTPD program. According to Marten’s Amended

Complaint, Marten brought these threats to the attention of the

University Ombudsman and the Better Business Bureau of

Northeast Kansas. 

The following fall, Marten took a course taught by

defendant Kleoppel. The course required students to complete

several written assignments. After reviewing one of Marten’s

assignments, Kleoppel accused Marten of academic misconduct

because his assignment included text copied directly from a

website without any indication that the language was not

Marten’s own. A few months later, Kleoppel alerted his

colleagues that he received a second problematic assignment

from Marten—this one appeared to include word-for-word

passages from a reference book without quotation marks or
4

proper citations. Following these two instances of suspected

academic misconduct, Kleoppel recommended to Regan that

Marten be expelled from the NTPD program. Regan agreed

with Kleoppel’s recommendation and he so informed defendant

Godwin. Godwin also agreed and he forwarded his

recommendation for expulsion to the Dean of the School of

Pharmacy, Jack Finchuam. Soon thereafter, Dean Finchuam sent

Marten a letter informing him that he was expelled from the

NTPD program on the grounds of academic misconduct. 

Marten filed a two-count complaint in the District Court

for the Eastern District of Pennsylvania. He alleged defamation

in violation of state law and retaliation in violation of the First

Amendment pursuant to 42 U.S.C. § 1983. According to

Marten’s Amended Complaint, Kleoppel, Godwin and Regan

retaliated against Marten because he complained about

defendant Regan’s conduct. Their retaliatory action allegedly

consisted of making false accusations of plagiarism and then

recommending his expulsion. Marten separately alleged

defendants’ accusations of plagiarism constituted defamation

under state law.

Defendants filed a motion to dismiss the complaint for

lack of personal jurisdiction. The District Court denied the

motion without issuing an opinion. After discovery, defendants

moved for summary judgment on the ground that the District

Court lacked personal jurisdiction over the defendants. The

District Court granted defendants’ motion for summary

judgment, explaining that Marten did not meet his burden to

establish jurisdiction as he relied “on bare, unsubstantiated

allegations without proffering evidence” of jurisdictional

significance. Marten v. Godwin, No. 03-6734, 2005 WL

3307084, at *3 (E.D. Pa. December 6, 2005); see Fed. R. Civ. P.

56(e) (“When a motion for summary judgment is made and

supported as provided in this rule [with sworn affidavits], an

adverse party may not rest upon the mere allegations or denials

of the adverse party’s pleading, but the adverse party’s response,

by affidavits or as otherwise provided in this rule, must set forth

specific facts showing that there is a genuine issue for trial.”);

Connors v. Fawn Min. Corp., 30 F.3d 483, 489 (3d Cir. 1994). 

II.
2

 Dismissing a claim for lack of personal jurisdiction is

more appropriately done by way of Rule 12(b)(2) of the Federal

Rules of Civil Procedure, rather than Rule 56. A summary

judgment order pursuant to Rule 56 “is a ruling on the merits which

if affirmed would have preclusive effect.” EF Operating Corp. v.

Am. Bldgs., 993 F.2d 1046, 1049 (3d Cir. 1993). The District

Court decided this case as a Rule 56 motion, but it is “clear from

the district court’s opinion [that] the claim has not been disposed

of on the merits and is therefore only abated.” Martucci v. Mayer,

210 F.2d 259, 260-61 (3d Cir. 1954) (considering a summary

judgment motion based on lack of indispensable parties as a motion

to dismiss); see 10A Charles Alan Wright, Federal Practice and

Procedure, § 2713 (“In general, courts have ruled that summary

judgment is an inappropriate vehicle for raising a question

concerning the courts[’] . . . personal jurisdiction . . . .”).

Nevertheless, “[b]ecause this case comes to us . . . [as a] motion for

summary judgment, we must assess the record under the standard

set forth in Rule 56 of the Federal Rules of Civil Procedure.”

Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 884 (1990); see Ball

v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.

1990) (“If the defendant asserts in a Rule 56 motion that

undisputed facts show the absence of jurisdiction, the court

proceeds, as with any summary judgment motion, to determine if

undisputed facts exist that warrant the relief sought.”). 

In any event, we exercise plenary review over the District

Court’s decision regardless of whether we treat it as a summary

5

The District Court had subject matter jurisdiction

pursuant to 28 U.S.C. §§ 1331 and 1367. We have jurisdiction

to review the District Court’s final order granting summary

judgment pursuant to 28 U.S.C. § 1291. 

In reviewing a grant of summary judgment we exercise

plenary review and apply the same standard as the District

Court. Jakimas v. Hoffmann-La Roche, Inc., 485 F.3d 770, 777

(3d Cir. 2007). Rule 56 of the Federal Rules of Civil Procedure

“mandates the entry of summary judgment, after adequate time

for discovery and upon motion, against a party who fails to make

a showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will bear

the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.

317, 322-23 (1986).2

 Marten’s evidence “is to be believed, and
judgment order or a Rule 12(b)(2) dismissal. See Pinker v. Roche

Holdings Ltd., 292 F.3d 361, 368 (3d Cir. 2002) (“We review a

district court’s decision with respect to personal jurisdiction de

novo.”). And, even accepting Marten’s allegations as true and

construing disputed facts in his favor, as is the general practice in

reviewing 12(b)(2) motions, we conclude that the District Court did

not have jurisdiction over these defendants. See, e.g., Carteret Sav.

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

(“[C]ourts reviewing a motion to dismiss a case for lack of in

personam jurisdiction must accept all of the plaintiff’s allegations

as true and construe disputed facts in favor of the plaintiff.”). 

6

all justifiable inferences are to be drawn in his favor.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 

III.

If an issue is raised as to whether a court lacks personal

jurisdiction over a defendant, the plaintiff bears the burden of

showing that personal jurisdiction exists. Gen. Elec. Co. v.

Deutz AG, 270 F.3d 144, 150 (3d Cir. 2001). Pursuant to Rule

4(k) of the Federal Rules of Civil Procedure, “a federal district

court may assert personal jurisdiction over a nonresident of the

state in which the court sits to the extent authorized by the law of

that state.” See Provident Nat’l Bank, 819 F.2d at 437; Fed. R.

Civ. P. 4(k)(1)(A). In Pennsylvania, state law provides for

jurisdiction “to the fullest extent allowed under the Constitution

of the United States” and “based on the most minimum contact

with [the] Commonwealth allowed under the Constitution of the

United States.” 42 Pa. Cons. Stat. Ann. § 5322(b). 

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.” Int’l Shoe Co. v. Washington, 326 U.S. 310,

316 (1945) (quotation marks and citations omitted). Having

minimum contacts with another state provides “‘fair warning’”

to a defendant that he or she may be subject to suit in that state.

See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)

(quoting Shaffer v. Heitner, 433 U.S. 186, 218 (1977) (Stevens,
7

J., concurring in judgment)). 

These basic due process principles are reflected in the two

recognized types of personal jurisdiction. General jurisdiction

exists when a defendant has maintained systematic and

continuous contacts with the forum state. See Helicopteros

Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-15 &

n.8 (1984). Specific jurisdiction exists when the claim arises

from or relates to conduct purposely directed at the forum state.

See id. at 414-15 & n.9. Marten does not argue that the District

Court had general jurisdiction over these defendants.

Accordingly, we are only concerned with whether the court had

specific jurisdiction. See Pennzoil Prods., 149 F.3d at 200-01

(“[N]o party in this case contends that there is a basis for general

jurisdiction in Pennsylvania—so we are free to consider solely

whether the alternative form of personal jurisdiction is present:

specific personal jurisdiction.”). 

Determining whether specific jurisdiction exists involves

a three-part inquiry. O’Connor v. Sandy Lane Hotel Co., Ltd., –

F.3d –, – , 2007 WL 2135274, at *2 (3d Cir. 2007). First, the

defendant must have “‘purposefully directed’ his activities” at

the forum. Burger King, 471 U.S. at 472 (quoting Keeton v.

Hustler Magazine, Inc., 465 U.S. 770, 774 (1984)). Second, the

plaintiff’s claim must “arise out of or relate to” at least one of

those specific activities. Helicopteros, 466 U.S. at 414. Third,

courts may consider additional factors to ensure that the

assertion of jurisdiction otherwise “comport[s] with ‘fair play

and substantial justice.’” Burger King, 471 U.S. at 476 (quoting

Int’l Shoe, 326 U.S. at 320). Because this analysis depends on

the relationship between the claims and contacts, we generally

evaluate specific jurisdiction on a claim-by-claim basis. See,

e.g., Remick v. Manfredy, 238 F.3d 248, 255-56 (3d Cir. 2001).

Marten does not argue that the defendants’ contacts with

Pennsylvania satisfy the traditional three-step analysis for

specific jurisdiction. Instead, he relies on Calder v. Jones, 465

U.S. 783 (1984), to argue that the District Court had specific

jurisdiction over these defendants based on the effects their

Kansas conduct had in Pennsylvania. 

In Calder, an entertainer living in California sued two

residents of Florida for libel because of an article published in
8

the National Enquirer. The author and editor of the article were

subject to jurisdiction in California based on the “effects” of

their Florida actions in California. The Supreme Court

explained that the defendants expressly aimed their intentional,

tortious activity at California: “[T]hey knew [the article] would

have a potentially devastating impact upon respondent. And

they knew that the brunt of that injury would be felt by

respondent in the State in which she lives and works and in

which the National Enquirer has its largest circulation.” Id. at

789-90. As a result, the Court concluded that defendants could

“reasonably anticipate being haled into court” in California. Id.

at 790 (citing World-Wide Volkswagen Corp. v. Woodson, 444

U.S. at 297; Kulko v. California Superior Court, 436 U.S. 84,

97-98 (1978); Shaffer, 433 U.S. at 216).

This Court has determined that Calder allows a plaintiff

to demonstrate personal jurisdiction if he or she shows:

(1) The defendant committed an intentional tort; 

(2) The plaintiff felt the brunt of the harm in the

forum such that the forum can be said to be the

focal point of the harm suffered by the plaintiff as

a result of that tort;

(3) The defendant expressly aimed his tortious

conduct at the forum such that the forum can be

said to be the focal point of the tortious activity.

IMO Indus. v. Kiekert AG, 155 F.3d 254, 265-66 (3d Cir. 1998)

(footnote omitted). If a plaintiff satisfies these three elements,

known collectively as the “effects test,” the plaintiff can

demonstrate a court’s jurisdiction over a defendant even when

the defendant’s “contacts with the forum alone . . . are far too

small to comport with the requirements of due process” under

our traditional analysis. Id. at 259. 

The effects test and traditional specific jurisdiction

analysis are different, but they are cut from the same cloth. Just

as the standard test prevents a defendant from “be[ing] haled into

a jurisdiction solely as a result of random, fortuitous, or

attenuated contacts,” Burger King, 471 U.S. at 475 (citations and

quotation marks omitted), the effects test prevents a defendant

from being haled into a jurisdiction solely because the defendant
9

intentionally caused harm that was felt in the forum state if the

defendant did not expressly aim his conduct at that state. See,

e.g., Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d 446, 455 n.6

(3d Cir. 2003) (indicating the effects test is an alternative to

“minimum contacts” analysis but declaring they both require a

similar type of “intentionality” on the part of the defendant).

Even if a defendant’s conduct could cause foreseeable harm in a

given state, such conduct does not necessarily give rise to

personal jurisdiction in that state. “[T]he foreseeability that is

critical to due process analysis is . . . that the defendant’s

conduct and connection with the forum State are such that he

should reasonably anticipate being haled into court there.”

World-Wide Volkswagen, 444 U.S. at 297. 

Only if the “expressly aimed” element of the effects test

is met need we consider the other two elements. See IMO

Indus., 155 F.3d at 266. To establish that the defendant

“expressly aimed” his conduct, the plaintiff has to demonstrate

“the defendant knew that the plaintiff would suffer the brunt of

the harm caused by the tortious conduct in the forum, and point

to specific activity indicating that the defendant expressly aimed

its tortious conduct at the forum.” Id. at 266. If a plaintiff fails

to show that the defendant “‘manifest[ed] behavior intentionally

targeted at and focused on’ the forum,” IMO Indus., 155 F.3d at

265 (quoting ESAB Group Inc. v. Centricut, Inc., 126 F.3d 617,

625 (4th Cir. 1997), the plaintiff fails to establish jurisdiction

under the effects test. In Remick v. Manfredy, 238 F.3d 248 (3d

Cir. 2001), for example, we dismissed a defamation claim for

lack of jurisdiction even though we acknowledged that the

defendant could have intentionally defamed the plaintiff and the

plaintiff could have felt the bulk of the harm in the forum state.

In that case, defendants sent plaintiff a defamatory letter that was

read by plaintiff’s Pennsylvania co-workers. Defendants also

made defamatory statements to members of plaintiff’s

professional community. Remick, 238 F.3d at 259. We

concluded that the plaintiff failed to establish jurisdiction over

the defamation claim because plaintiff provided “no indication

that the [defamatory] letter was targeted at . . . anyone in

Pennsylvania other than [plaintiff],” and plaintiff did not assert

that Pennsylvania had a “unique relationship” with plaintiff’s

professional community. See id. 

Remick illustrates a simple point: a plaintiff’s residence is
3

 Defendants do not dispute that personal jurisdiction for

the retaliation claim can be analyzed under the effects test. 

10

relevant to the “jurisdictional inquiry” insofar as “residence in

the forum may, because of defendant’s relationship with the

plaintiff, enhance defendant’s contacts with the forum.” Keeton,

465 U.S. at 780. However, the state of a plaintiff’s residence

does not on its own create jurisdiction over nonresident

defendants. Jurisdiction is proper when the state of a plaintiff’s

residence is “the focus of the activities of the defendant out of

which the suit arises.” See id.

IV.

Applying these principles to Marten’s defamation and

retaliation claims, we conclude Marten has not carried his

burden of establishing personal jurisdiction under the effects

test. In particular, Marten has not shown with respect to either

claim that defendants expressly aimed their conduct at

Pennsylvania. 

Marten alleges defamation, but nothing in the record

indicates that defendants made defamatory statements or sent

defamatory material to anyone in Pennsylvania (other than,

perhaps, Marten). As illustrated by the dismissal of the

plaintiff’s defamation claim in Remick, where defendants aimed

their defamatory statements is jurisdictionally significant.

Remick, 238 F.3d at 259. Here, even if we were to assume the

truth of all of Marten’s allegations, and assume he felt the brunt

of the harm in Pennsylvania, we still could not find jurisdiction.

He failed to allege any specific facts showing a deliberate

targeting of Pennsylvania. See IMO Indus., 155 F.3d at 265-66. 

Accordingly, Marten failed to show jurisdiction over these

defendants for his defamation claim.

Marten has similarly failed to show jurisdiction over

defendants for his retaliation claim. That claim rests on his

allegation that he was falsely accused of academic misconduct

and consequentially expelled because he exercised his First

Amendment rights in complaining about Regan.3

 But even if we
4

 The conduct at issue in the retaliation claim is a decision

made in Kansas to expel Marten after he directed complaints from

his residence in Pennsylvania to Kansas institutions. The location

of the brunt of the harm caused by this alleged retaliation is not

obvious. If the harm is the expulsion, the web-based nature of the

educational program makes it difficult to determine the earthbound location of that harm. If, on the other hand, the harm is the

chilling of Marten’s First Amendment rights, that harm might

travel with him or exist in the location in which he exercised his

rights (Pennsylvania). We do not need to tackle this thorny

conceptual issue, as there is no jurisdiction over these defendants

even if Marten suffered the brunt of the harm in Pennsylvania. See

IMO Indus., 155 F.3d at 265 (“Calder requires more than a finding

that the harm caused by the defendant’s intentional tort is primarily

felt within the forum.”).

11

assume Marten felt the brunt of the harm in Pennsylvania,4 he

has utterly failed to persuade us that defendants expressly aimed

their allegedly retaliatory conduct at Pennsylvania.

Marten relies on the fact that at the time of his expulsion

he resided in Pennsylvania. At oral argument, his counsel

asserted that Pennsylvania has jurisdiction over these

nonresident defendants because IMO Industries instructs courts

to focus on the place where a plaintiff has suffered harm and

“[t]he constitutional harm in this case was felt where Mr. Marten

resided, where Mr. Marten asserted his [First Amendment]

rights.” This misconstrues our analysis in IMO Industries. True,

the effects test asks whether the plaintiff felt the brunt of the

harm in the forum state, but it also asks whether defendants knew

that the plaintiff would suffer the harm there and whether they

aimed their tortious conduct at that state. See IMO Indus., 155

F.3d at 264 (explaining “the geographical locus of the harm

caused” by an intentional tort is only part of the test). 

In order to satisfy the effects test, a plaintiff alleging

retaliation must show additional facts connecting the defendant

to the forum state other than the plaintiff’s location at the time of

the retaliatory conduct. The elements of First Amendment

retaliation include conduct by the defendant “sufficient to deter a

person of ordinary firmness from exercising his constitutional

rights,” and “a causal link” between plaintiff’s constitutionally
12

protected activities and the defendant’s retaliatory conduct. See,

e.g., Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir.

2006). A defendant can commit First Amendment retaliation

without “expressly aiming” his conduct at the plaintiff’s

location, or even knowing where the plaintiff would be likely to

suffer. Thus, a plaintiff demonstrating residence in the forum

state at the time of the retaliatory conduct does not necessarily

meet the effects test. Because Marten failed to show specific

activity indicating the defendants “expressly aimed” their

conduct at Pennsylvania, the District Court did not have

jurisdiction over these defendants. See IMO Indus., 155 F.3d at

256. 

V.

Marten has alleged only that defendants harmed him

while he happened to be residing in Pennsylvania. In suing

nonresidents for defamation and retaliation, that is not enough to

establish personal jurisdiction. Because Marten has not shown

defendants expressly aimed their conduct at Pennsylvania, we

will affirm the District Court’s grant of summary judgment.