Laurel Gardens, LLC v. Timothy McKenna

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 18-3758
______________
LAUREL GARDENS, LLC; AMERICAN WINTER SERVICES,
LLC; LAUREL GARDENS HOLDINGS, LLC; LGSM, GP;
CHARLES P. GAUDIOSO,
Appellants
v.
TIMOTHY MCKENNA; MICHAEL MCKENNA; MAT SITE
MANAGEMENT, LLC; BOBBY AERENSON; GREGORY
PETTINARO; CHARLES WILKINSON; WILKINSON
BUILDERS, LLC; TECHNIVATE, INC.; THOMAS DIDONATO;
KEVIN EAISE; EAISE DESIGN & LANDSCAPING, LLC;
EAISE SNOW SERVICES, LLC; HAINES & KIBBLEHOUSE,
INC.; HANK JULICHER; MARGIT JULICHER;
CHRISTOPHER W. WRIGHT; LONGVIEW MANAGEMENT,
LLC; MATTHEW SIBLEY; M&M LANDSCAPING, LLC;
ALAN PERRY; MARY TRESIZE; FRANK ALCARAZ; STRIVE
FORCE, LLC; MJL ENTERPRISES; JOHN HYNANSKI;
NORMAN AERENSON; ISKEN ENTERPRISES, LLC;
FRONTIER MULCH, LLC; LONGVIEW MANAGEMENT, LP;
DON ISKEN; PAUL ISKEN; SAUL EWING, LLP; DAVID
FALCONE; JOHN SNYDER
______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 5-17-cv-00570)
Honorable Jeffrey L. Schmehl, District Judge
______________
Submitted under Third Circuit L.A.R. 34.1(a)
October 22, 2019
BEFORE: GREENAWAY, JR., PORTER, and COWEN, Circuit
Judges
(Filed: January 14, 2020)
______________
Kevin F. Berry
Tamara S. Grimm
O’Hagan Meyer
100 North 18th Street
Two Logan Square, Suite 700
Philadelphia, PA 19103
Attorneys for Appellants
Ryan M. Ernst
George Pazuniak
Sean T. O’Kelly
O’Kelly Ernst & Joyce
901 North Market Street
Suite 1000
Wilmington, DE 19801
Attorneys for Appellees
2
______________
OPINION OF THE COURT
______________
COWEN, Circuit Judge.
Plaintiffs, Laurel Gardens, LLC (“LG”), American
Winter Services, LLC (“AWS”), Laurel Garden Holdings, LLC
(“LGH”), LGSM, GP (“LGSM”), and Charles P. Gaudioso,
appeal from the order of the United States District Court for the
Eastern District of Pennsylvania granting the motion for entry of
final judgment pursuant to Federal Rule of Civil Procedure
54(b) filed by Defendants, Don Isken, Paul Isken, and Isken
Enterprises, LLC (“IE”) (“the Isken Defendants”). Specifically,
the District Court designated its prior order—granting the Isken
Defendants’ motion to dismiss for lack of personal jurisdiction
under Federal Rule of Civil Procedure 12(b)(2) while denying
all but one of the motions to dismiss filed by the other
defendants—as its final judgment as to the Isken Defendants.
Plaintiffs argue that the District Court erred by applying the
traditional requirements for personal jurisdiction as opposed to a
specific provision of the Racketeer Influenced and Corrupt
Organizations Act (“RICO”) authorizing the nation-wide
exercise of personal jurisdiction in certain circumstances.
Initially, we conclude that the issue of personal
jurisdiction is properly before us and accordingly limit our
ruling to this threshold jurisdictional issue. We agree with
Plaintiffs that 18 U.S.C. § 1965(b) (and not 18 U.S.C. §1965(d))
3
governs the exercise of personal jurisdiction in this case and that
they satisfy the statutory (and constitutional) requirements for
the District Court to exercise such jurisdiction over the Isken
Defendants. In turn, Plaintiffs’ state law claims fall under the
doctrine of pendent personal jurisdiction. Accordingly, we will
vacate the order entered by the District Court disposing of the
parties’ dismissal motions to the extent that it granted the Isken
Defendants’ motion to dismiss for lack of personal jurisdiction
under Rule 12(b)(2) as well as the District Court’s Rule 54(b)
order insofar as it designated this prior order as the final
judgment as to the Isken Defendants.
I.
Naming a total of thirty-three defendants, Plaintiffs
alleged in their lengthy amended complaint that “[t]he primary
cause of this action is a widespread criminal enterprise engaged
in a pattern of racketeering activity across State lines, and a
conspiracy to engage in racketeering activity involving
numerous RICO predicate acts during the past ten (10) calendar
years.” (JA70.) Plaintiffs alleged predicate acts of bribery,
extortionate credit transactions, mail fraud, wire fraud, witness
tampering, and retaliation. They then set forth three separate
RICO claims, i.e., conduct and participation in an enterprise
through a pattern of racketeering under 18 U.S.C. § 1962(c),
acquisition and maintenance of an interest in and control of an
enterprise engaged in a pattern of racketeering activity pursuant
to 18 U.S.C. § 1972(b), and conspiracy to engage in a pattern of
racketeering activity in violation of 18 U.S.C. § 1962(d).
Finally, the pleading included claims against all defendants
under Pennsylvania law for aiding and abetting the breach of
fiduciary duty, civil conspiracy, fraud, conversion, negligent
4
misrepresentation, and tortious interference with contract and
prospective contractual arrangements (as well as a claim for
breach of fiduciary duty against Defendants Timothy McKenna
and Michael McKenna).
According to Plaintiffs,1 the enterprise’s primary
objective has been to inflict severe economic hardship upon the
Plaintiffs with the intent to impair, obstruct, prevent, and
discourage them from continuing to work in the field of
landscaping and snow removal services. “[A]t the center of
[the] criminal enterprise” are Defendants Timothy McKenna and
Michael McKenna. (JA77.) Timothy McKenna (a resident of
Delaware who maintains a business address in Delaware) was
the managing member of LG and AWS until May 2012 (when
he was replaced by Gaudioso) and remained a consultant for
Plaintiffs until his termination for cause in June 2014. Likewise,
Michael McKenna (Timothy McKenna’s son and a Pennsylvania
resident who maintains a Delaware business address) was the
general manager for LG and AWS until he resigned on
November 9, 2014. “Timothy McKenna, Michael McKenna,
Catherine McKenna (Timothy’s wife), and [Defendant] MAT
Site Management, LLC (the McKennas’ business) sought to
steal the Plaintiffs’ customers and continue in the business of
servicing the commercial landscaping and snow removal needs
1
The amended complaint alleged that LG and AWS are
Pennsylvania limited liability companies while LGSM is a
Pennsylvania limited liability partnership. The three entities
maintain their principal places of business, owned property, and
conducted business in Pennsylvania. LGH is a Delaware limited
liability company with its principal place of business located in
Pennsylvania.
5
for those customers.” (Appellants’ Brief at 5-6 (citing JA70).)
It is undisputed that brothers Don Isken and Paul Isken
are residents of the State of Delaware and that IE is a Delaware
limited liability company with its principal place of business
located in Newark, Delaware.2 The first amended complaint
included the following allegations against the Isken Defendants:
Isken and Isken Enterprises
134. DON ISKEN and PAUL ISKEN
have been associated with TIMOTHY
McKENNA for several years. They own several
local hotels, specifically the Homewood Suites,
Holiday Inn Express, and Comfort Inn in
Wilmington, DE.
135. TIMOTHY McKENNA conspired
with DON ISKEN and PAUL ISKEN to steal
Company assets and labor by delivering loads of
salt and calcium at no charge to the ISKEN’ [sic]
hotels in return for some debt relief to TIMOTHY
McKENNA. This was late in the 2014 season
when salt and melt products were generally
unavailable at any price and the Company’s
inventory was stretched. TIMOTHY McKENNA
and MICHAEL McKENNA also directed snow
2
The amended complaint alleged that IE “is a limited
partnership under the laws of the Commonwealth of
Pennsylvania” maintaining a business address in Newark,
Delaware. (JA74.)
6
removal services to the hotels and DON ISKEN’
[sic] home with no intention of billing DON
ISKEN. When the Company learned of this, the
Company sent a bill and attempted to collect
payment from DON ISKEN and PAUL ISKEN.
DON ISKEN and PAUL ISKEN refused to pay
advising GAUDIOSO, ‘Our deal was with Tim
McKenna”. When GAUDIOSO pressed as to
what that meant, neither DON ISKEN nor PAUL
ISKEN would explain.
136. Having loaned TIMOTHY
McKENNA a significant amount of money
(upwards of $200,000) and TIMOTHY
McKENNA being unable to pay it back, DON
ISKEN has initiated several Sherriff Goods and
Chattel sales on TIMOTHY McKENNA’s home.
The email trail between TIMOTHY McKENNA
and DON ISKEN goes back years and shows
TIMOTHY McKENNA promising to pay DON
ISKEN and always reneging on payment.
Ultimately, DON ISKEN initiated the Sherriff
sale and then TIMOTHY McKENNA somehow
came up with an amount to get DON ISKEN off
his back for a short time. Then the process started
again.
137. Counsel for the Company,
SNYDER and FALCONE of SAUL EWING
were advising TIMOTHY McKENNA on how to
handle this situation with ISKEN.
7
(JA95-JA96.)3 Plaintiffs attached several exhibits to their
pleading, including an exhibit consisting of documents
purportedly relating to the Isken Defendants. These documents
are: (1) an April 28, 2014 e-mail from Don Isken to Timothy
McKenna indicating that Timothy McKenna intended to have
his partner in the salt business make a wire transfer in the
amount of $103,750 “to each Paul and I” within the next two
days, forwarding wiring instructions from Paul Isken, and
expressing frustration about the whole process (stating that the
amount would only increase and specifically pointing to earlier
e-mails in which Timothy McKenna had assured Don Isken that
payment was forthcoming) (JA293); (2) a May 2, 2014 e-mail
from Don Isken to Timothy McKenna stating that he received a
payment of $20,000 instead of the $207,000 he had long
expected and Timothy McKenna had absolutely guaranteed he
would receive, refusing to accept payment, and indicating that
he had no intention to halt the judicial actions (and in particular
that he intended to push for a judicial sale of Timothy
McKenna’s personal belongings at the earliest opportunity); (3)
an April 15, 2014 invoice from AWS billing Homewood Suites
$12,874 for services related to snow removal, including $10,000
for calcium; and (4) a June 5, 2014 e-mail from Don Isken to
Timothy McKenna replying to an e-mail forwarded by Timothy
McKenna from Defendant Christopher Wright, inquiring why
3
The amended complaint referred to Plaintiffs as “the
Company.” Defendant Saul Ewing, LP “is a Pennsylvania
limited partnership engaged in the practice of law with a
principal place of business” located in Philadelphia,
Pennsylvania, while Defendants David Falcone and John Snyder
are engaged in the practice of law at the law firm’s office.
(JA76.)
8
the Wright e-mail message4 was sent to him and “[w]hat am I
supposed to do with this information and documentation—
deposit it in the bank” (JA296).
Fifteen separate motions to dismiss were filed by the
respective defendants. In fact, all but one of the defendants
(Mary Tresize) moved to dismiss. On May 15, 2017, the Isken
Defendants moved to dismiss with prejudice pursuant to Rule
12(b)(2) and Federal Rule of Civil Procedure 12(b)(6). In their
memorandum of law, they argued that the District Court must
dismiss this action pursuant to Rule 12(b)(2) because it lacks
personal jurisdiction over Paul Isken and IE. Under
Pennsylvania’s long-arm statute providing for personal
jurisdiction over non-resident defendants to the fullest extent
allowed under the United States Constitution, see 42 Pa. Cons.
Stat. Ann. § 5322, the amended complaint purportedly fails to
allege either general or specific jurisdiction over Paul Isken and
IE. The Isken Defendants further sought dismissal under Rule
12(b)(6) on the grounds that the pleading does not assert a claim
against the Isken Defendants upon which relief may be granted,
the state law claims are outside the statute of limitations, and the
claims are alleged against improper parties. On June 16, 2017,
Plaintiffs filed a lengthy omnibus response in opposition to
several motions to dismiss, including the Isken Defendants’ own
motion. In their June 23, 2017 reply brief, the Isken Defendants
acknowledged that the Plaintiffs’ opposition had responded to
4
The Wright e-mail was entitled “MJL Salt Deal
Summary” and asked Timothy McKenna not to share the
attached documents with anyone because the GSC cost per ton
and some of the other small variables had yet to be adjusted.
(JA296.)
9
two of their grounds for dismissal (failure to state a claim and
statute of limitations). They then addressed the merits of these
two grounds. However, the Isken Defendants also pointed out
that “Plaintiffs do not respond to the Isken Defendants’
arguments for dismissal based on the lack of personal
jurisdiction and the naming of an improper party.” (E.D. Pa.
Docket Entry #97 at 2.) “Pursuant to Local Rule 7.1(c), these
arguments are unopposed, and the [first amended complaint]
should be dismissed by the Court on that basis.” (Id. (citing
Dennis v. DeJong, 867 F. Supp. 2d 588, 622 (E.D. Pa. 2011);
Toth v. Bristol Twp., 215 F. Supp. 2d 595, 598 (E.D. Pa. 2002);
Smith v. Nat’l Flood Ins. Program of FEMA, 156 F Supp. 2d
520, 525 (E.D. Pa. 2001)).)
On July 14, 2017, Plaintiffs submitted a motion for leave
to file a sur-reply in further opposition to the Isken Defendants’
motion to dismiss. Noting that most defendants had filed nearly
identical motions to dismiss, “Plaintiffs do not intend to waste
this Court’s time by repeating its own arguments in a surreply,
but does seek leave to briefly address the Isken Defendants’
argument that this Court lacks personal jurisdiction over
Defendants Paul Isken and [IE].” (E.D. Pa. Docket Entry #108
at 2.) “Plaintiffs respectfully request that this Court exercise its
discretion and grant leave to file a surreply to clarify the record
and respond to Defendants’ jurisdictional arguments.” (Id.)
The District Court granted Plaintiffs’ motion for leave on
July 19, 2017, and the sur-reply was filed on the same day. In
addition to responding to the Isken Defendants’ argument that
the first amended complaint should be dismissed because of
Plaintiffs failure to respond on the issue of personal jurisdiction,
Plaintiffs argued that the District Court possesses both general
10
and specific jurisdiction over Paul Isken and IE (and also
asserted that the affidavits submitted by Paul Isken and Don
Isken falsely state that IE has never owned or held any interest
in any real property in Pennsylvania). They also argued that the
District Court has personal jurisdiction pursuant to the RICO
statute as well as the doctrine of pendent personal jurisdiction.
On March 14, 2018, the District Court disposed of the
various dismissal motions. All of them were denied with two
exceptions, namely, the respective motions to dismiss filed by
Defendant MJL Enterprises (“MJL”) and the Isken Defendants.
The District Court expressed concern that the lengthy pleading
violates the requirement to set forth “a short and plain statement
of the claim,” Fed. R. Civ. P. 8(a), noting that its “302 pages
(337 paragraphs with attached exhibits) include[ed] a mass of
details which may be relevant and appropriate at summary
judgment or trial, but are clearly surplusage in stating a claim at
this stage” (JA18). However, it found “Plaintiffs’ claims
survive a Rule 12(b)(6) challenge.” (Id.) “Defendant MJL
moves to dismiss arguing venue is improper here because the
terms of the settlement agreement between MJL and Laurel
Gardens expressly provides each of the Parties involved in the
agreement (MJL and Laurel Gardens) consents to jurisdiction in
the Eastern District of Virginia.” (Id. (citing E.D. Pa. Docket
Entry #60).) While concluding that venue is proper under 28
U.S.C. § 1391, the District Court transferred the claims against
MJL to the United States District Court for the Eastern District
of Virginia pursuant to 28 U.S.C. § 1404. Finally, the District
Court agreed with the Isken Defendants that it lacks both
specific and general jurisdiction over them. It looked to
Pennsylvania’s long-arm statute and the Fourteenth
Amendment’s contacts test. “Applying the above principles,
11
this Court concludes the Iskens lack the requisite ‘minimum
contacts’ with Pennsylvania to the exercise of jurisdiction over
them. Walden v. Fiore, 134 S. Ct. 1115, 1124 (2014).
Therefore, this Court lacks specific jurisdiction.” (JA22.) The
District Court also found that the Isken Defendants also do not
possess the continuous and systematic contacts with the forum
state required for the exercise of general jurisdiction.
“Accordingly, the Iskens’ Motion to Dismiss for lack of
personal jurisdiction under Rule 12(b)(2) is granted. The Iskens
are dismissed from this matter.” (JA23.)
On May 17, 2018, the Isken Defendants moved for entry
of final judgment pursuant to Rule 54(b). The District Court
granted this motion on November 20, 2018, determining that
“the Order is a final judgment as to Defendants Don Isken, Paul
Isken, and Isken Enterprises, LLC for the purposes of Federal
Rule of Civil Procedure 54(b), and no just cause exists for
delaying entry of final judgment in this matter as to Defendants
Don Isken, Paul Isken, and Isken Enterprises, LLC.” (JA15.)
II.
In addition to some disagreement as to what issues are
properly before us, this appeal implicates a question of first
impression for this Court, namely, whether 18 U.S.C. § 1965(b)
or 18 U.S.C. §1965(d) governs the exercise of personal
jurisdiction in this case.5 Federal Rule of Civil Procedure 4(k)
5
The District Court had subject matter jurisdiction over
the RICO claims pursuant to 28 U.S.C. § 1331 and over the state
law claims under 28 U.S.C. § 1367. We have appellate
jurisdiction under 28 U.S.C. § 1291.
12
sets forth the “Territorial Limits of Effective Service” and
provides that “(1) [i]n general. Serving a summons or filing a
waiver of service establishes personal jurisdiction over a
defendant: (A) who is subject to the jurisdiction of a court of
general jurisdiction in the state where the district is located.”
This subsection implicates the traditional contacts-based
approach to personal jurisdiction, and it was this traditional
approach that the District Court applied. However, Rule
4(k)(1)(C) includes an alternative: serving a summons or filing
a waiver of service establishes personal jurisdiction over a
defendant “when authorized by a federal statute.” RICO
includes a specific provision entitled “Venue and Process,”
which states:
(a) Any civil action or proceeding under this
chapter against any person may be instituted in
the district court of the United States for any
district in which such person resides, is found, has
Whether personal jurisdiction may be exercised over an
out-of-state defendant poses a question of law triggering a
plenary standard of review. See, e.g., Metcalfe v. Renaissance
Marine, Inc., 566 F.3d 324, 329 (3d Cir. 2009). “Although the
plaintiff bears the burden of demonstrating the facts that
establish personal jurisdiction, see Mellon Bank (East) PSFS
Nat’l Ass’n v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992), in
reviewing a motion to dismiss under Rule 12(b)(2), we ‘must
accept all of the plaintiff’s allegations as true and construe
disputed facts in favor of the plaintiff.’ Carteret Sav. Bank, FA
v. Shushan, 954 F.2d 141, 142 n.1 (3d Cir. 1992).” Pinker v.
Roche Holdings Ltd., 292 F.3d 361, 368 (3d Cir. 2002).
13
an agent, or transacts his affairs.
(b) In any action under section 1964 of this
chapter in any district court of the United States in
which it is shown that the ends of justice require
that other parties residing in any other district be
brought before the court, the court may cause
such parties to be summoned, and process for that
purpose may be served in any judicial district of
the United States by the marshal thereof.
(c) In any civil or criminal action or proceeding
instituted by the United States under this chapter
in the district court of the United States for any
judicial district, subpenas [sic] issued by such
court to compel the attendance of witnesses may
be served in any other judicial district, except that
in any civil action or proceeding no such
subpoena [sic] shall be issued for service upon
any individual who resides in another district at a
place more than one hundred miles from the place
at which such court is held without approval
given by a judge of such court upon a showing of
good cause.
(d) All other process in any action or proceeding
under this chapter may be served on any person in
any judicial district in which such person resides,
is found, has an agent, or transacts his affairs.
18 U.S.C. § 1965. We conclude that subsection (b) (and not
subsection (d)) applies here. In turn, Plaintiffs satisfy the
14
statutory (and constitutional) requirements for the exercise of
personal jurisdiction over the Isken Defendants. Furthermore,
Plaintiffs’ state law claims then fall under the doctrine of
pendent personal jurisdiction.
A. The Issues on Appeal
Initially, the parties disagree over the issue or issues that
are properly before us on this appeal. On the one hand, the
Isken Defendants insist that Plaintiffs waived the issue of
personal jurisdiction under RICO by not raising this statutory
issue before their sur-reply. Instead of responding to Plaintiffs’
§ 1965 arguments, the Isken Defendants go on to argue at some
length that the RICO claims fail as a matter of law and that
“therefore the District Court has no personal jurisdiction over
the Isken Defendants.” (Appellees’ Brief at 4 (“Absent the
RICO claims, subject matter jurisdiction for the district court
over nonfederal claims is lost – making personal jurisdiction a
moot question, as under [Plaintiffs’] argument, personal
jurisdiction only obtains in this case under 18 U.S.C. § 1965.”).)
They also contend that the state law claims are legally deficient
and barred by the statute of limitations and that IE is not a
proper defendant. On the other hand, Plaintiffs contend that this
Court lacks the jurisdiction to consider the substantive issues
raised by the Isken Defendants’ appellate brief because they
were never addressed by the District Court and, in any event, no
notice of cross-appeal was ever filed. With respect to the merits
of these substantive issues, Plaintiffs “will simply refer to and
incorporate by reference their Omnibus Response in the district
court, which addressed the Isken Defendants’ and many other
defendants’ substantive arguments” (and they request leave to
file a full brief addressing the substantive issues if the Court
15
were to entertain them). (Appellants’ Reply Brief at 6 and 8
(citing E.D. Pa. Docket Entry #91).)
We agree with Plaintiffs that the issue of personal
jurisdiction under the RICO provision is properly before us.
Under the circumstances, we also limit our ruling to this
threshold jurisdictional issue under Rule 12(b)(2) and therefore
refrain from considering whether Plaintiffs fail to state a claim
upon which relief can be granted under Rule 12(b)(6).
It is well established that, in the absence of exceptional
circumstances, this Court will not consider issues raised for the
first time on appeal. See, e.g., In re Ins. Brokerage Antitrust
Litig., 579 F.3d 241, 261-62 (3d Cir. 2009). “For an issue to be
preserved for appeal, a party ‘must unequivocally put its
position before the trial court at a point and in a manner that
permits the court to consider its merits.’” Id. at 262 (quoting
Shell Petroleum, Inc. v. United States, 182 F.3d 212, 218 (3d
Cir. 1999)).
Plaintiffs did not address the question of personal
jurisdiction—whether under the traditional contacts test or a
specific federal statutory provision authorizing the nation-wide
exercise of personal jurisdiction—until they moved for leave to
file a sur-reply. However, the District Court granted their
motion and ordered Plaintiffs to file their sur-reply—which they
did. While the Isken Defendants assert that such filings are
normally granted only when the preceding reply brief raises new
matter or arguments and that they were deprived “of opportunity
to further respond” (Appellees’ Brief at 13), the Isken
Defendants did not oppose or otherwise object to Plaintiffs’
successful motion for leave to file the sur-reply. Given the
16
months that passed between the authorized filing of the sur-reply
to the motion to dismiss and the District Court’s disposition of
the dismissal motion itself, the issue was clearly presented to the
District Court at a point and in a manner to permit it (and the
Isken Defendants) to consider its merits. Unfortunately, the
District Court’s dismissal order did not address the issue of
personal jurisdiction under the RICO provision. But this
omission (like the Plaintiffs’ failure to address personal
jurisdiction in their omnibus response) was evidently nothing
more than an understandable oversight in a complicated case
involving more than thirty defendants filing multiple (and often-
overlapping) motions to dismiss and where the Isken Defendants
were the only parties to seek dismissal for lack of personal
jurisdiction. After all, the District Court did not (as the Isken
Defendants appear to suggest) indicate that it was “dismissing
the Isken Defendants based on lack of timely opposition to the
Isken Defendants’ Motion to Dismiss and Local Rule of Civil
Procedure 7.1(c)”6 (id. at 12). On the contrary, the District
Court considered the Isken Defendants’ arguments about the
lack of general and specific jurisdiction and determined that they
do not possess the requisite contacts with the forum state for
jurisdiction on such grounds. It did so even though the Isken
Defendants had pointed out in their reply brief that the
Plaintiffs’ omnibus response did not respond to their arguments
about general and specific jurisdiction and asked the District
Court to dismiss the first amended complaint as uncontested
6
Eastern District of Pennsylvania Local Rule 7.1(c)
states that, “[i]n the absence of timely response, the motion may
be granted as uncontested except as provided under Fed.R.Civ.P
[sic] 56.”
17
pursuant to Local Rule 7.1(c).7
We likewise limit our ruling to this threshold issue of
personal jurisdiction. Generally, we may affirm on any ground
supported by the record, and an appellee may urge affirmance on
such a ground even if the district court overlooked it or it
involves an attack on the district court’s reasoning. See, e.g.,
TD Bank N.A. v. Hill, 928 F.3d 259, 270 (3d Cir. 2019); EF
Operating Corp. v. Am. Buildings, 993 F.2d 1046, 1048 (3d Cir.
1993). However, the District Court granted the Isken
Defendants’ motion under Rule 12(b)(2) for “lack of personal
jurisdiction”—and not pursuant to Rule 12(b)(6) for “failure to
state a claim a claim upon which relief can be granted.” Cf, e.g.,
EF Operating, 993 F.2d at 1048-49 (distinguishing between
dismissal for lack of personal jurisdiction and grant of summary
judgment on merits and concluding that, where appellant files
appeal from summary judgment, appellee must cross-appeal to
7
According to the Isken Defendants, Plaintiffs could
have addressed the District Court’s dismissal of the Isken
Defendants on personal jurisdiction grounds by filing a timely
motion for reconsideration. At least in retrospect, such a motion
would have been an appropriate and efficient way to emphasize
to the District Court—and obtain a ruling on—the issue of
personal jurisdiction under the RICO provision before the case
went forward against the other defendants (and the order was
certified as a final judgment under Rule 54(b) as to the Isken
Defendants). However, the Isken Defendants do not indicate
that such a motion is required for us to consider the issue of
personal jurisdiction on appeal. We also note that the Isken
Defendants did not seek reconsideration of the order granting
Plaintiffs’ motion for leave to file the sur-reply.
18
contest denial of motion to dismiss for lack of personal
jurisdiction). In fact, the District Court denied the various Rule
12(b)(6) motions to dismiss “referenced in the above Order,”
finding that “Plaintiffs’ claims survive a Rule 12(b)(6) motion.”
(JA18.) At this stage:
[A]ccepting Plaintiffs’ lengthy allegations as
true, this Court concludes that Plaintiffs raise a
plausible right to relief. Whether Plaintiffs have a
claim for aiding and abetting breach of fiduciary
duty, civil conspiracy, RICO, fraud, breach of
fiduciary duty, conversion, negligent
misrepresentation, and tortious interference, is
best decided on a full factual record of a Rule 56
motion.
(Id.) 8 We also do not overlook the procedural posture of
Plaintiffs’ current appeal. The District Court designated its
interlocutory order as a final judgment as to the Isken
Defendants pursuant to Rule 54(b). In their successful Rule
54(b) motion, the Isken Defendants acknowledged that
“Plaintiffs’ claims against the remaining defendants are
continuing, with written discovery scheduled to conclude on
June 1, 2018.” (E.D. Pa. Docket Entry #195-1 at 2 (citing E.D.
8
Transferring the MJL claims, the District Court
observed that, “[b]ecause MJL and Laurel Gardens agreed to the
Eastern District of Virginia as their forum, this Court does not
address the merits of MJL’s motion to dismiss for failure to state
a claim.” (JA21.) The District Court did not make this sort of
statement in its discussion of the Isken Defendants’ motion to
dismiss.
19
Pa. Docket Entry #158 at ¶ 1) (noting no trial date has been
set).) They emphasized the fact that they “were the only
defendants dismissed in the action on the basis of personal
jurisdiction, and the basis for their dismissal is factually unique
to them.” (Id. at 5.) Under these circumstances, we limit
ourselves to this “unique” basis.9
B. Personal Jurisdiction under the RICO Provision
There is a circuit split regarding which specific
subsection of the RICO provision governs the exercise of
personal jurisdiction in this case. Plaintiffs recognize that two
circuits (the Fourth and the Eleventh Circuits) have looked to §
1965(d). According to the Eleventh Circuit, “Section 1965(d) of
the RICO statute provides for service in any judicial district in
which the defendant is found.” Republic of Panama v. BCCI
Holdings (Lux.) S.A., 119 F.3d 935, 942 (11th Cir. 1997).
“When a federal statute provides for nationwide service of
process, it becomes the statutory basis for personal jurisdiction.”
Id. (citing In re Chase & Sanborn Corp., 835 F.2d 1341, 1344
(11th Cir. 1988), rev’d on other grounds sub nom.
Granfianciera, S.A. v. Nordberg, 492 U.S. 33 (1989); Lisak v.
Mercantile Bancorp Inc., 834 F.2d 668, 671 (7th Cir. 1987)).
Citing Republic of Panama, the Fourth Circuit reached the same
conclusion. ESAB Grp., Inc. v. Centricut, Inc., 126 F.3d 617,
9
Plaintiffs argue that the District Court erroneously
dismissed the claims against Don Isken because he (unlike Paul
Isken and IE) did not seek dismissal based on the absence of
personal jurisdiction. We do not address this argument because
we determine that the District Court possesses personal
jurisdiction over all three of the Isken Defendants.
20
626 (4th Cir. 1997). Five circuits (the Second, Seventh, Ninth,
Tenth, and D.C. Circuits) have stated that subsection (b) governs
nation-wide service of process and personal jurisdiction over
“other parties.”10 See FC Inv. Grp. v. IPX Markets, Ltd., 529
F3d 1087, 1098-1100 (D.C. Cir. 2008) Cory v. Aztec Steel
Bldg., Inc., 468 F.3d 1226, 1229-33 (10th Cir. 2006); PT United
Can Co. v. Crown Cork & Seal Co., 138 F.3d 65, 70-72 (2d Cir.
1998); Lisak, 834 F.2d at 671-72; Butcher’s Union Local No.
498 v. SDC Inv., Inc., 788 F.2d 535, 538-39 (9th Cir. 1986).
We agree with the majority approach. We do so based on
the language and structure of the RICO provision itself as well
as the relative absence of reasoning in support of the minority
position. The history of the legislation and our own prior case
law provide further support for this majority approach.
10
We note that the Seventh Circuit has pointed (in
passing) to subsection (d) as authorizing nation-wide service of
process. See Cent. States, Se. & Sw. Areas Pension Funds v.
Reimer Express World Corp., 230 F.3d 934, 940-41 (7th Cir.
2000); Robinson Eng’g Co. Pension Plan & Tr. v. George, 223
F.3d 445, 449 & n.1 (7th Cir. 2000). However, there are other
Seventh Circuit decisions pointing to subsection (b) (including
Lisak, which did address the statutory provision with a little
more depth than either Central States or Robinson
Engineering)). See Lisak, 834 F.2d at 671-72; Stauffacher v.
Bennett, 969 F.2d 4455, 460-61 (7th Cir. 1992), superseded by
rule on other grounds as stated in Cent. States, 230 F.3d at 938.
Robinson Engineering also cited to Stauffacher’s reference to
subsection (b). Robinson Eng’g, 223 F.3d at 449 (citing
Stauffacher, 969 F.2d at 460-61).
21
“The first federal appellate court to actually analyze §
1965’s full text and offer reasoning for its choice of subsections
was the Second Circuit” in PT United. Cory, 468 F.3d at 1230(footnote omitted). The Second Circuit persuasively explained
the function of each subsection as part of a single coherent
framework for RICO actions. See, e.g., FC Inv., 529 F.3d at
1099 (“Having considered the arguments of the parties, as well
as the reasoning of our sister circuits on the question, we are
persuaded to adopt the Second Circuit’s reasoning.”); Cory, 468
F.3d at 1231 (“We find [the Second Circuit’s] reasoning
persuasive and consistent with congressional intent.” (footnote
omitted)). Specifically:
Section 1965 makes sense only if all of its
subsections are read together. Neither the district
court’s opinion nor the briefing of the parties
discusses § 1965(a) and (c), but we find these
sections to be equally important to a coherent
understanding of the meaning and functioning of
the statute, particularly for the purpose of
interpreting the terms “other parties” and “other
process” in §§ 1965(b) and (d), respectively.
Reading all of the subsections of § 1965
together, the court finds that § 1965 does not
provide for nationwide jurisdiction over every
defendant in every civil RICO case, no matter
where the defendant is found. First, § 1965(a)
grants personal jurisdiction over an initial
defendant in a civil RICO case to the district court
for the district in which that person resides, has an
agent, or transacts his or her affairs. In other
22
words, a civil RICO action can only be brought in
a district court where personal jurisdiction based
on minimum contacts is established as to at least
one defendant.
Second, § 1965(b) provides for nationwide
service and jurisdiction over “other parties” not
residing in the district, who may be additional
defendants of any kind, including co-defendants,
third-party defendants, or additional counter-
claim defendants. This jurisdiction is not
automatic but requires a showing that the “ends of
justice” so require. This is an unsurprising
limitation. There is no impediment to prosecution
of a civil RICO action in a court foreign to some
defendants if it is necessary, but the first
preference, as set forth in § 1965(a), is to bring
the action where suits are normally expected to be
brought. Congress has expressed a preference in
§ 1965 to avoid, where possible, haling
defendants into far flung fora.
PT United, 138 F.3d at 71-72 (footnote omitted). Going further,
subsection (c) “simply refers to service of subpoenas on
witnesses”—specifically in civil or criminal actions or
proceedings instituted by the government. Id. Finally,
“subsection (d)’s reference to ‘“all other process”’ must mean
process different than a summons or a government subpoena,
both of which are dealt with in previous subsections.” Cory,
468 F.3d at 1230 (quoting PT United, 138 F.3d at 72). As the
Second Circuit explained:
23
This interpretation, one which gives meaning to
the word ‘other’ by reading sequentially to
understand ‘other’ as meaning ‘different from that
already stated in subsections (a)-(c),’ gives
coherent effect to all sections of § 1965, and
effectively provides for all eventualities without
rendering any of the sections duplicative, without
impeding RICO actions and without unnecessarily
burdening parties.
PT United, 138 F.3d at 72 (“We conclude that the natural
reading given to § 1965(b) by the 9th Circuit in Butcher’s Union
and the district court here was correct, and that this conclusion is
borne out by a complete reading of the statute, a course of action
which has not been followed by the courts that have read §
1965(d) in isolation to reach the opposite conclusion.”).
In contrast, the circuit courts adopting the minority
approach did not offer a detailed explanation for their selection
of subsection (d). The Eleventh Circuit “did ‘not pause long
over . . . the question,’ and oddly, it cited Lisak [which
identified subsection (b) as creating personal jurisdiction] for
support.” Cory, 468 F.3d at 1230 (quoting Republic of Panama,
119 F.3d at 942); see also, e.g., PT United, 138 F.3d at 70(“[A]nother circuit court stated in conclusory terms that §
1965(d) provides for nationwide service of process.” (citing
Republic of Panama, 119 F.3d at 942)). Without mentioning
subsection (b), the Fourth Circuit indicated that subsection (a)
authorizes venue while subsection (d) authorizes service of
process “evidencing Congress’ desire that ‘[p]rovision [be]
made for nationwide venue and service of process.’” ESAB
Grp., 126 F.3d at 626 (quoting H. Rep. No. 91-1549, at 4
24
(1970), reprinted in 1970 U.S.C.C.A.N. 4007, 4010); see also,
e.g., Cory, 468 F.3d at 1230 (noting that Fourth Circuit did not
mention contrary position of Seventh and Ninth Circuits).
In fact, the history of the RICO provision provides
additional support for the majority approach. In the report cited
by the Fourth Circuit, the House Judiciary Committee stated that
“[s]ubsection (b) provides nationwide service of process on
parties, if the ends of justice require it, in actions under Section
1964” while “[s]ubsection (d) provides that all other process in
actions under the chapter may be served wherever the person
resides, is found, has the agent, or transacts his affairs.” 1970
U.S.C.C.A.N. at 4010 (further stating that subsection (a)
establishes venue for civil proceedings while subsection (c)
provides for nationwide subpoena power for witnesses in civil
or criminal proceedings but requires good cause for issuance if
witness in civil action resides in another district and at place
more than 100 miles from court). The committee further
explained that “[S]ection 1965 contains broad provisions
regarding venue and process, which are modeled on present
antitrust legislation.” Id.; see also, e.g., Cory, 468 F.3d at 1231(discussing committee report). For instance, the Clayton Act
provides that “[a]ny suit, action, or proceeding under the
antitrust laws against a corporation may be brought not only in
the judicial district whereof it is an inhabitant, but also in any
district wherein it may be found or transacts business; and all
process in such cases may be served in the district of which it is
an inhabitant, or wherever it may be found.” 15 U.S.C. § 22.
Like the RICO provision, the Clayton Act then authorizes “other
parties” to be served if “the ends of justice” so require:
The several district courts of the United States are
25
invested with jurisdiction to prevent and restrain
violations of this Act, and it shall be the duty of
the several United States attorneys, in their
respective districts, under the direction of the
Attorney General, to institute proceedings in
equity to prevent and restrain such violations. . . .
Whenever it shall appear to the court before
which any such proceeding may be pending that
the ends of justice require that other parties
should be brought before the court, the court may
cause them to be summoned whether they reside
in the district in which the court is held or not,
and subpoenas to that end may be served in any
district by the marshal thereof.
15 U.S.C. § 25; accord 15 U.S.C. §§ 4, 5 (Sherman Act); 15
U.S.C. §§ 9, 10 (Wilson Tariff Act). The Fourth Circuit
appropriately turned to Justice Jackson’s summary of the
antitrust statutory scheme in which he explained that, before
“‘other parties’” may be properly served, “‘it must be made to
appear to the court that the ends of justice require that they be
brought before the court, in which case they may be summoned
from any district.’” Cory, 468 F.3d at 1231 (quoting United
States v. Nat’l City Lines, 334 U.S. 573, 598 (1948) (Jackson, J.,
concurring in result), superseded by statute on other grounds as
stated in Trotter v. 7R Holdings, 873 F.3d 435 (3d Cir. 2017)).
Finally, we previously identified § 1965(b) as the
subsection governing service of process and personal
jurisdiction in this context. In explaining why a venue provision
applicable to civil forfeiture proceedings, see 18 U.S.C. §
981(h), does not authorize nation-wide service of process (and
26
thereby would not permit the district court to exercise in rem
jurisdiction where the res is located outside the district), we
observed that Congress has recognized in other instances the
utility of a specific provision authorizing nation-wide service of
process. United States v. Contents of Account No. 3034504504,
971 F.2d 974, 982 (3d Cir. 1992). We offered subsection (b) of
the RICO statutory provision and the Sherman Act as examples
of legislation expressly authorizing nation-wide service:
Aside from the Commodity Exchange Act,
Congress has expressly provided for nationwide
service of process in the civil Racketeer
Influenced and Corrupt Organizations Act, see 18
U.S.C.A. § 1965(b) (West 1984), the Securities
Act of 1933, see 15 U.S.C.A. § 77v(a) (West
Supp. 1992), the Securities Exchange Act of
1934, 15 U.S.C.A. § 78aa (West Supp. 1992), and
the Employee Retirement Income Security Act,
see 29 U.S.C.A. § 1132(e)(2) (West 1985). See
[United States v. 11205 McPherson Lane, 754 F.
Supp. 1483, 1488 (D. Nev. 1991).]; see also Lea
Brillmayer & Charles Norchi, Federal
Extraterritoriality and Fifth Amendment Due
Process, 105 Harv. L. Rev. 1217, 1220 n.14
(1992) (noting nationwide service of process
provided for in Arbitration Act, 9 U.S.C.A. § 9(West 1970) and Sherman Act, 15 U.S.C.A. § 5(West 1973); Howard M. Erichson, Note,
Nationwide Personal Jurisdiction in All Federal
Question Cases: A New Rule 4, 64 N.Y.U. L.
Rev. 1117, 1123 n.30 (1989) (listing another
twelve nationwide statutes providing for
27
nationwide service of process). . . .
Id. Plaintiffs acknowledge that this Court “did not squarely
address the question [now before us] and it was simply a passing
reference in a string citation.” (Appellants’ Brief at 19.)
However, this reference, brief as it may be, should not be
overlooked out of hand—especially where it is consistent with
the statutory language and structure, the existing case law, and
the history of the statutory provision at issue.
Accordingly, “[w]hen a civil RICO action is brought in a
district court where personal jurisdiction can be established over
at least one defendant, summonses can be served nationwide on
other defendants if required by the ends of justice.” Cory, 468
F.3d at 1226. Plaintiffs assert that there are two requirements
that must be satisfied under subsection (b) “to establish personal
jurisdiction over a defendant not meeting the minimum contacts
requirements.” (Appellants’ Brief at 23.) According to
Plaintiffs, these requirements are: (1) “[a]t least one of the other
defendants must meet the traditional personal jurisdiction
requirements” (id. at 24); and (2) “[t]he ‘ends of justice’ must
require that the district court in this case is the one in which this
case should be tried” based on “the statutory language in Section
1965(b), which courts have held to require ‘that there is no other
district in which a court will have [traditional] personal
jurisdiction over all of the alleged co-conspirators’” (id.
(quoting Butcher’s Union, 788 F.2d at 539).
The structure of § 1965 as well as the “other parties”
language of subsection (b) clearly require the presence of at
least one defendant that meets the traditional contacts test. With
the apparent exception of the Seventh Circuit, see Lisak, 834
28
F.3d at 671-72, the circuit courts following the majority
approach have adopted this requirement. See FC Inv., 529 F.3d
at 1098-1100; Cory, 468 F.3d at 1229-33; PT United, 138 F.3d
at 70-72; Butcher’s Union, 788 F.2d at 538-39.
As Plaintiffs recognize, the Ninth Circuit held that the
plaintiff must also establish that there is no other district court
that would have traditional personal jurisdiction over all of the
defendants. Butcher’s Union, 788 F.3d at 53. As the Seventh
Circuit put it, “Section 1965(b) authorizes nationwide service so
that at least one court will have jurisdiction over everyone
connected with any RICO enterprise.” Lisak, 834 F.3d at 672.
“A district court in Indiana will have that jurisdiction whether or
not Widmar can be brought before the court in Illinois, so
perhaps the ends of justice do not ‘require’ his presence in this
suit.” Id. We note, however, that the Tenth Circuit rejected the
Butcher’s Union requirement, instead holding “that the ‘ends of
justice’ analysis is not controlled by the fact that all defendants
may be amendable to suit in one forum.” Cory, 468 F.3d at
1232. The Cory court did not “offer a competing definition, as
the ‘ends of justice’ is a flexible concept uniquely tailored to the
facts of each case.” Id. “And in the current case, we have
Cory’s assertion that the ends of justice require nationwide
service simply because he has sustained damages and litigation
costs in Kansas. We conclude, as a matter of law, that such
facts, standing alone, do not satisfy the ‘ends of justice’
standard.” Id. (noting that plaintiff did not claim financial
impediment to suit in defendants’ home state). Furthermore, the
Second and D.C. Circuits have refrained from deciding what the
“ends of justice” require. FC Inv., 529 F.3d at 1100 & n.14
(refraining from opining on meaning of “ends of justice”
language because district court lacked traditional personal
29
jurisdiction over sole defendant); PT United, 138 F.3d at 72 n.5
(“As indicated, the statute does not specify what ‘the ends of
justice’ are, but, as indicated, UCC does not challenge the
district court’s finding that the ends of justice do not in this case
require § 1965(b) jurisdiction over the individual defendants.
The district court followed Butcher’s Union, 788 F.2d at 538-39,
in finding ‘the ends of justice’ to refer to a case in which there is
no district with personal jurisdiction over all defendants.
Because the individual defendants work in Pennsylvania for
Pennsylvania corporation Crown, the district court found that
the ends of justice did not require personal jurisdiction over the
individual defendants in New York under § 1965(b).”).
Nevertheless, the parties in this case do not recognize this
conflict. We need not—and do not—decide whether the Ninth
or the Tenth Circuit is correct because, as we explain below,
Plaintiffs establish both that no other district would have
traditional jurisdiction over all defendants and that the exercise
of jurisdiction satisfies a flexible understanding of the “ends of
justice.”11
We are satisfied that Plaintiffs satisfy the statutory
requirements—which the Isken Defendants themselves do not
brief on appeal. While alleging a multi-state scheme implicating
several Delaware and New Jersey defendants (and one Virginia
defendant (MJL)), Plaintiffs identify roughly half of the thirty-
three defendants as Pennsylvania residents or Pennsylvania
entities with their respective places of business in Pennsylvania.
11
We likewise need not—and do not—decide whether a
plaintiff must specifically allege “a multidistrict conspiracy” or
“single nationwide RICO conspiracy” encompassing the
defendants. See, e.g., Butcher’s Union, 788 F.2d at 539.
30
Except for the Isken Defendants, none of the defendants moved
to dismiss on the grounds of a lack of personal jurisdiction (not
even MJL, which did move on venue grounds). As the District
Court recognized in its venue discussion, “almost all other
parties are Pennsylvania residents.” (JA20.) “Plaintiffs’
allegations focus on a ‘hub-and-spoke conspiracy’ between the
McKennas and all named Defendants against Plaintiffs” (JA19),
and “[e]vents giving rise to this action – the hub-and-spoke
conspiracy – are centered in Pennsylvania” (JA20).
Specifically, “three of the four business-Plaintiffs [LG, AWS,
and LGSM] are Pennsylvania entities (two LLCs and one
general partnership), one [LGH] is a Delaware LLC, all have
principal or registered places of business within Pennsylvania,
and three [LG, AWS, and LGSM] conducted business within
Pennsylvania.” (Appellants’ Brief at 28 (citing JA70).) In fact,
the amended complaint alleged that, while Timothy McKenna is
believed to be a resident of Delaware, his son (the other person
at the alleged center of the conspiracy), Michael McKenna, is
believed to be a Pennsylvania resident. According to the
Plaintiffs’ pleading, “TIMOTHY McKENNA and MICHAEL
McKENNA also directed snow removal services to the [Isken
Defendants’] hotels and DON ISKEN’ [sic] home with no
intention of billing DON ISKEN.” (JA95-JA96.) Furthermore,
“[c]ounsel for the Company, SNYDER and FALCONE of
SAUL EWING were advising TIMOTHY MCKENNA on how
to handle this situation with ISKEN.” (JA96.) Allegedly, Saul
Ewing is a Pennsylvania limited partnership with its principal
place of business located in Philadelphia, Pennsylvania, while
Snyder and Falcone maintain their offices at that location.
Considering this Pennsylvania focus, no other district court
would have had traditional jurisdiction over all of the numerous
defendants in this action. Given the obvious proximity between
31
Delaware and the Eastern District of Pennsylvania, “exercising
personal jurisdiction over the Isken Defendants in this case does
not compromise the Second Circuit’s recognition of Congress’s
preference ‘to avoid, where possible, haling defendants into far
flung fora.’” (Appellants’ Brief at 29 (quoting PT United, 138
F.3d at 72).) In the end, Plaintiffs alleged that at least one
Pennsylvanian is “at the center of a criminal enterprise” (JA77)
targeting Pennsylvania plaintiffs and involving numerous other
Pennsylvania defendants as well as several defendants from
neighboring states. Under the circumstances, the “ends of
justice” call for the exercise of jurisdiction over the three out-of-
state Isken Defendants.
“Where Congress has statutorily authorized nationwide
service of process, such service establishes personal jurisdiction,
provided that the federal court’s exercise of jurisdiction
comports with Fifth Amendment due process.” Cory, 468 F.3d
at 1229 (citing Peay v. BellSouth Med. Assistance Plan, 205
F.3d 1206, 1209 (10th Cir. 2000)); see also, e.g., In re
Automotive Refinishing Paint Antitrust Litig., 358 F.3d 288,
297-99 (3d Cir. 2004); Pinker, 292 F.3d at 368-71. Having
determined that “the ends of justice require” the Isken
Defendants “be brought before” the District Court under §
1965(b), we have no difficulty concluding that the District
Court’s exercise of personal jurisdiction over them comports
with the Fifth Amendment. In this context, we are not limited to
the defendant’s contacts with the forum state and instead
consider contacts with the nation as a whole. See, e.g.,
Automotive Refinishing, 358 F.3d at 297-99; Pinker, 292 F.3d at
368-71. Don Isken and Paul Isken are both Delaware residents
while IE is a Delaware limited liability company with its
principal place of business in Newark, Delaware. “Once
32
minimum contacts have been established, we assess whether the
exercise of personal jurisdiction is consistent with ‘traditional
notions of fair play and substantial justice.’” Pinker, 292 F.3d at
370 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316
(1945)) (noting, inter alia, existence of dispute not raised by
parties as to whether fairness prong of analysis applies in
context of federal statute authorizing nation-wide service of
process and stating that we need not concern ourselves with
propriety of litigating in district court at issue vis-à-vis other
district courts); see also, e.g., ESAB Grp., 126 F.3d at 626-27;
Republic of Panama, 119 F.3d at 942-48. Unlike the traditional
approach, this inquiry focuses less on federalism concerns and
more on the national interest in furthering the policies of the
federal statute at issue. See, e.g., Pinker, 292 F.3d at 370.
The District Court’s exercise of personal jurisdiction over
defendants from a neighboring state does not offend traditional
notions of fair play and substantial justice. “[W]e believe that
the national interest in furthering the policies of the [federal
anti-racketeering statute enabling a single district court to
exercise personal jurisdiction over all defendants] militates in
favor of exercising personal jurisdiction over [the Isken
Defendants].” Id. at 372; see also, e.g., ESAB Grp., 126 F.3d at
627 (concluding that exercise of jurisdiction comported with
Fifth Amendment because of absence of any evidence of such
extreme inconvenience or unfairness as would outweigh
congressionally articulated policy and that dictates of judicial
efficiency did not so strongly weigh against forum that
constitutional due process would be offended); Republic of
Panama, 119 F.3d at 948 (finding that defendants failed to
present compelling case that litigating action in forum would put
them at severe disadvantage because defendants were large
33
corporations providing banking services to customers in major
metropolitan areas along eastern seaboard, fact they may have
no significant contact with Florida was insufficient to render
forum state unreasonably inconvenient, necessity of world-wide
discovery indicated that Florida was no more inconvenient than
any other district, and defendants presented no evidence that
ability to defend would be significantly compromised); Lisak,
834 F.2d at 672 (“Section 1965(b) authorizes nationwide service
so that at least one court will have jurisdiction over everyone
connected with any RICO enterprise.”).
C. Pendent Personal Jurisdiction
In addition to the RICO claims, Plaintiffs asserted several
state law claims against the defendants (including the Isken
Defendants). We agree with Plaintiffs that the doctrine of
pendent (or supplemental) personal jurisdiction applies in this
case.
This Court recognized the notion of pendent personal
jurisdiction more than forty years ago in Robinson v. Penn
Central Co., 484 F.2d 553 (3d Cir. 1973). We explained:
Analysis should begin, we think, with the
fact that in the Securities Act of 1933 and the
Securities Exchange Act of 1934 Congress has
bestowed upon the United States District Courts
the power to extend their writ extraterritorially so
as to compel a personal appearance before them.
Once the defendant is before the court, it matters
little, from the point of view of procedural due
process, that he has become subject to the court’s
34
ultimate judgment as a result of territorial or
extraterritorial process. Looked at from this
standpoint, the issue is not one of territorial in
personam jurisdiction— that has already been
answered by the statutes--but of subject matter
jurisdiction. It is merely an aspect of the basic
pendent jurisdiction problem. In United Mine
Workers v. Gibbs, [383 U.S. 715 (1966)], the
Supreme Court recognized that a discretionary
approach should be taken in considering whether
to entertain pendent claims. Justification for
entertaining such claims “. . . lies in
considerations of judicial economy, convenience,
and fairness to litigants; if these are not present a
federal court should hesitate to exercise
jurisdiction over state claims . . . .” [383 U.S. at
726]. Moreover, while the issue of power to
entertain a suit for an in personam judgment on a
pendent state law claim will ordinarily be
resolved on the pleadings, the court remains free
throughout the proceedings to dismiss such a
claim if that seems the fairer course. [Id. at 727.]
In this case, recognizing that Cabot was properly
before it by virtue of extraterritorial service
authorized by two federal statutes, the district
court properly weighed considerations of judicial
economy, convenience and fairness, and
concluded that it would entertain the pendent
claims. That course was within its power and the
district court will also have power to dismiss the
pendent claims in the future as noted above.
35
Id. at 555-56. Acknowledging that the supplemental jurisdiction
statute codified Gibbs, see 28 U.S.C. § 1367, the Fourth Circuit
applied this approach to RICO and related state law claims. See
ESAB Grp., 126 F.3d at 627-29.
While they argue in passing that the District Court lacks
subject matter jurisdiction over the Pennsylvania state law
claims in the absence of the RICO claims, the Isken Defendants
do not dispute that the state law claims “are so related to” the
claims under RICO “that they form part of the same case or
controversy under Article III of the United States Constitution.”
28 U.S.C. § 1367(a). Furthermore, they do not suggest that the
District Court would decline to exercise its jurisdiction over
these claims pursuant to the factors set by Gibbs and 28 U.S.C. §
1367(b). In fact, the District Court denied the various motions
to dismiss the RICO claims under Rule 12(b)(6). See §
1367(c)(3) (“the district court has dismissed all claims over
which it has original jurisdiction”). “Since the court has
personal jurisdiction over the defendants under service of
process authorized by the Federal Rule of Civil Procedure
[4(k)(1)(C)] and by the RICO statute, we can find no
constitutional bar to requiring the defendants to defend the
entire constitutional case, which includes both federal and state
claims arising from the same nucleus of facts.” ESAB Grp., 126
F.3d at 629.
III.
For the foregoing reasons, we will vacate the order
entered by the District Court disposing of the parties’ dismissal
motions to the extent that it granted the Isken Defendants’
motion to dismiss for lack of personal jurisdiction under Rule
36
12(b)(2) as well as the District Court’s Rule 54(b) order insofar
as it designated this prior order as the final judgment as to the
Isken Defendants. This matter will be remanded to the District
Court for further proceedings consistent with our opinion.
37