# HEPP v. FACEBOOK, INC.

> District Court, E.D. Pennsylvania · August 3, 2020

URL: https://www.frixlaw.com/law-library/cases/10399409

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** August 3, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10399409

## How later opinions describe it (automated extraction)

- affirming denial of request where “jurisdictional discovery would have been futile”
- affirming district court’s denial of jurisdictional discovery where plaintiff merely averred that defendant conducted business in the forum

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KAREN HEPP, :
:
Plaintiff :
: CIVIL ACTION
v. :
: NO. 19-4034-JMY
FACEBOOK, INC., ET AL., :
:
Defendants :

MEMORANDUM

YOUNGE, J. AUGUST 3 , 2020

I. INTRODUCTION
This case arises out of an allegedly unauthorized photograph of Plaintiff Karen Hepp,
which was captured by a security camera in a New York City convenience store and then was
posted by third-party users on several websites and social media platforms, including that of
Defendant WGCZ, S.R.O. (“WGCZ”). (See generally, Am. Compl., ECF No. 50.) Plaintiff
asserts that she is a public figure who has suffered harm from the unlawful dissemination and
publication of her image and, accordingly, she asserts claims against WGCZ for alleged violation
of her common law and statutory right of publicity.
Presently before the Court is WGCZ’s Motion to Dismiss the Amended Complaint.
(WGCZ Mot., ECF No. 77.) WGCZ argues that it should be dismissed from this action based on
a lack of personal jurisdiction. (Id. at 1.) In response to WGCZ’s Motion, Plaintiff filed an
Opposition and a Cross-Motion to Amend the Complaint to Add a Count for Successor Liability
and to Add a Party. (Pl.’s Opp./Cross-Mot., ECF No. 83.) Plaintiff’s Cross-Motion seeks to add
as an additional defendant an entity named NKL Associates, S.R.O. (“NKL”), which Plaintiff
contends is a successor company to WGCZ. (Id.; see also Pl.’s Opp./Cross-Mot. Mem. 2, ECF
No. 83-6.) For the reasons that follow, WGCZ’s Motion will be granted, Plaintiff’s Cross-
Motion to Amend will be denied, and Plaintiff’s Complaint will be dismissed.
II. BACKGROUND
A. Factual Background1

Plaintiff is a newscaster who has worked for the Philadelphia-based Fox 29 news team
since November 2010. (Am. Compl. ¶ 37.) She “is a co-anchor of the 4 am to 6 am hours of
‘Good Day Philadelphia,’ a morning news program, and joins the set as co-host for the final hour
of the show from 9 am to 10 am.” (Id. ¶ 38.) Prior to working at Fox 29, Plaintiff worked for
other news organizations in New York City, Philadelphia, and Connecticut. (Id. ¶¶ 39-41.)
Plaintiff alleges that “[a]pproximately two years ago, [she] discovered through her co-
workers and managers, that, without her consent, a photograph of her taken by a security camera
in a convenience store in New York City was being used in online advertisements for erectile
dysfunction and dating websites.” (Id. ¶ 43.) Plaintiff further alleges that she “was unaware that
her photograph had been taken” in the store, that she “does not know the identity or the location

of the store or how her photograph was secured,” and that she “has since learned that the
photograph has appeared illegally on many other websites.” (Id. ¶¶ 44-45.) The Amended
Complaint also references and attaches as exhibits images and internet addresses of the websites
on which her image appeared. (Id. ¶¶ 46-48, Exs. L-P.) Plaintiff alleges that the unauthorized
dissemination of her image has negatively impacted her “image/brand on social media sites” and
her “social media ranking” on sites such as Instagram and Twitter. (See id. ¶¶ 51-55.) Plaintiff

1 The factual allegations in the Amended Complaint are accepted as true and construed in the
light most favorable to Plaintiff as the non-moving party. DiCarlo v. St. Mary Hosp., 530 F.3d 255, 262-
63 (3d Cir. 2008).
alleges that “Defendants’ actions with respect to [her] image have caused serious, permanent and
irreparable harm” to “Plaintiff’s reputation, brand and image.” (Id. ¶¶ 64, 71.)
With regard to moving Defendant WGCZ, Plaintiff alleges that it “is a limited liability
company existing under the laws of the Czech Republic.” (Id. ¶ 34.) Plaintiff alleges that

WGCZ “owns and operates ‘XNXX.com,’ a popular adult-oriented website featuring
pornographic materials.” (Id. ¶ 35.) Plaintiff alleges that her photo “was featured on the XNXX
site in the ‘milf’ gallery 44/46 and can be easily downloaded. The XNXX site url address is:
https://multi.xnxx.com/gallery/1116129/a34b/milf_gallery_44_46/.”2 (Id. ¶ 50, Ex. P.) Review
of Exhibit P indicates that the Plaintiff’s photograph was posted on XNXX.com by a third party
or parties. (Id. Ex P.) Specifically, Exhibit P states: “Photos uploaded to: xnxx.com / forum by
endzeitH - NylonLuver - DebbyLynn - Ginger Snap - easytiger511111.” (Id.) The screenshot
depicted in Exhibit P is undated and contains nothing to establish when it was uploaded to
XNXX.com. (Id.) Moreover, Plaintiff does not allege, either in her Amended Complaint or in
her Opposition and Cross-Motion to Amend, that WGCZ or NKL authored, created, or

developed the photograph of Plaintiff that is the subject of this lawsuit. (See generally, Am.
Compl.; see also Pl.’s Opp./Cross-Mot. Mem. at 6 (stating that WGCZ “provid[es] an interactive
pornographic website that allows users to download millions of pornographic images and
videos. . . .” (emphasis added).))
B. Procedural History
Plaintiff filed this action on September 4, 2019, asserting in her original Complaint
claims against Facebook, Inc.; Imgur, Inc.; Reddit, Inc.; Giphy, Inc.; WGCZ; and Does 1-10, for

2 The Amended Complaint alleges that “milf” is “a derogatory and degrading slang acronym that
refers to a sexually attractive woman with young children.” (Am. Compl. ¶ 47.)
violation of 42 Pa. Stat. and Cons. Stat. Ann. § 8316 (Count I), and under the Pennsylvania
common law right of publicity (Count II).3 (Compl., ECF No. 1.) Subsequently, Defendants
Imgur, Giphy, Reddit, and Facebook filed motions to dismiss the Complaint. (See ECF Nos. 29,
45, 46, 47.) When the motions to dismiss the original Complaint were filed, Plaintiff had not yet

demonstrated proof of service of the Complaint on WGCZ. (See ECF Nos. 34, 43.) Plaintiff
later effected service on WGCZ pursuant to the Hague Convention, and WGCZ’s counsel
executed a waiver of service. (See ECF Nos. 52, 68.)
On February 18, 2020, while the other Defendants’ motions to dismiss the original
Complaint were pending, Plaintiff filed her Amended Complaint, again asserting claims against
all of the above-noted Defendants under 42 Pa. Stat. and Cons. Stat. Ann. § 8316 (Count I), and
the Pennsylvania common law right of publicity (Count II). (See generally Am. Compl.)
Accordingly, the Court dismissed the motions to dismiss the original Complaint as moot. (See
ECF No. 51.) On March 3, 2020, Defendants Imgur, Reddit, Giphy, and Facebook filed motions
to dismiss the Amended Complaint. (ECF Nos. 53-56.) Subsequently, Plaintiff voluntarily

dismissed her claims against Giphy with prejudice pursuant to Federal Rule of Civil Procedure
41(a)(1)(A)(i). (ECF No. 74.) On June 5, 2020, the Court issued a Memorandum and Order
granting the motions to dismiss filed by Facebook, Imgur, and Reddit, and dismissing Plaintiff’s
action as to those Defendants with prejudice. (6/5/20 Mem., ECF No. 81; 6/5/20 Order, ECF No.
82.) In granting these motions to dismiss, the Court concluded that Facebook, Imgur, and Reddit

3 Plaintiff alleges that the Doe Defendants are “the owners and operators of other websites and/or
media outlets” who either performed the acts alleged, “acted as agents, principals, alter egos, employees,
or representatives of the other Defendants,” or “otherwise participated in the acts alleged with the other
Defendants.” (Am. Compl. ¶ 36.) Plaintiff has not yet identified or served the Doe Defendants.
are entitled to immunity from Plaintiff’s claims pursuant to Section 230(c) of the
Communications Decency Act (“CDA”), 47 U.S.C. § 230(c). (See 6/5/20 Mem. at 2, 8-10.)
Shortly before the Court issued its June 5, 2020 Memorandum and Order, WGCZ filed
the Motion to Dismiss that is currently before the Court. (See WGCZ Mot.) Plaintiff filed her

Opposition and Cross-Motion on June 11, 2020, and, on June 18, 2020, WGCZ filed a Reply in
support of its Motion and Opposition to Plaintiff’s Cross-Motion. (ECF No. 84.)
III. LEGAL STANDARDS
A. Personal Jurisdiction Under Rule 12(b)(2)
In reviewing a motion to dismiss for lack of personal jurisdiction under Federal Rule of
Civil Procedure 12(b)(2), a court “must accept all of the plaintiff’s allegations as true and
construe disputed facts in favor of the plaintiff.” Pinker v. Roche Holdings Ltd., 292 F.3d 361,
368 (3d Cir. 2002). If no evidentiary hearing is held on the motion to dismiss, the plaintiff need
only make a prima facie showing of personal jurisdiction. Miller Yacht Sales, Inc., v. Smith, 384
F.3d 93, 97 (3d Cir. 2004). A plaintiff has the burden to establish “with reasonable particularity

sufficient contacts between the defendant and the forum state.” Mellon Bank (East) PSFS, Nat.
Ass’n v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992); see also Action Mfg. Co. v. Simon
Wrecking Co., 375 F. Supp. 2d 411, 418 (E.D. Pa. 2005) (A plaintiff satisfies this prima
facie standard by presenting facts that, if true, would permit the court to exercise personal
jurisdiction over defendant.).
However, when a defendant challenges a court’s personal jurisdiction, the plaintiff must
then establish its existence. O’Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 316 (3d Cir.
2007). The plaintiff meets this burden by “establishing with reasonable particularity sufficient
contacts between the defendant and the forum state to support jurisdiction.” Provident Nat’l
Bank v. California Fed. Sav. & Loan Assoc., 819 F.2d 434, 437 (3d Cir. 1987). The plaintiff
may not “rely on the bare pleadings alone in order to withstand a defendant’s . . . motion to
dismiss” for lack of personal jurisdiction. Time Share Vacation Club v. Atl. Resorts, Ltd., 735
F.2d 61, 66 n.9 (3d Cir. 1984). Instead, the “plaintiff must respond with actual proofs, not mere

allegations.” Id.
A federal court entertaining a suit must possess one of two forms of personal jurisdiction
over each defendant. The first form, known as specific jurisdiction, requires that the plaintiff’s
claim arise from the defendant’s contacts with the forum in which the court sits. Helicopteros
Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413-14 (1984). In contrast, the court may
exercise general jurisdiction over a defendant who possesses systematic and continuous contacts
with the forum regardless of whether the plaintiff’s claim derives from the defendant’s in-forum
activities. Id. at 415 n.9; see also Marten v. Godwin, 499 F.3d 290, 296 (3d 2007). The court
must determine whether to exercise either form of jurisdiction in light of the “relationship among
the defendant, the forum, and the litigation.” Helicopteros, 466 U.S. at 414.

“[S]pecifc jurisdiction exists when the claim arises from or relates to conduct purposely
directed at the forum state.” Marten, 499 F.3d at 296. Determining whether specific jurisdiction
exists involves a three-part inquiry. O’Connor, 496 F.3d at 317. First, the defendant must have
“‘purposefully directed’ his activities” at the forum. Burger King Corp. v. Rudzewicz, 471 U.S.
462 (1985). 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. “There must be a ‘deliberate targeting of the forum’
and ‘contacts with a state’s citizens that take place outside the state are not purposeful contacts
with the state itself.’” Lutz v. Rakuten, Inc., 376 F. Supp. 3d 455, 463-464 (E.D. Pa. 2019)
(quoting O’Connor, 496 F.3d at 317). “Moreover, ‘the defendant must have purposefully
avail[ed] itself of the privilege of conducting activities within the forum.’” Id. at 464 (quoting
O’Connor, 496 F.3d at 317 (alteration in original)).

In cases where the alleged wrongdoing sounds in tort, the personal jurisdiction inquiry
employs an effects test to determine whether purposeful direction exists. Calder v. Jones, 465
U.S. 783 (1984). Under this test, personal jurisdiction can be based on: (1) an intentional tort;
(2) expressly aimed at the forum state; (3) causing harm, the brunt of which is suffered — and
which the defendant knows is likely to be suffered — in the forum state. See IMO Indus., Inc.,
v. Kiekert AG, 155 F.3d 254, 265-266 (3d Cir. 1998); Lutz, 376 F. Supp. 3d at 466. Only if the
“expressly aimed” element of the effects test is met does the court need to consider the other two
elements. Marten, 499 F.3d at 297.
B. Leave to Amend Under Rule 15(a)
The Plaintiff moves to amend her Amended Complaint under Federal Rule of Civil

Procedure 15(a), which states that “leave [to amend a pleading] shall be freely given when
justices so requires.” Federal Rule of Civil Procedure 15(a) has been interpreted to liberally
allow for the amendment of pleadings when justice so requires; however, this privilege is not
unfettered. Foman v. Davis, 371 U.S. 178, 182 (1962). Under certain circumstances, the denial
of a motion to amend is appropriate. Adams v. Gould, Inc., 739 F.2d 858, 864 (3d Cir. 1984).
“Among the grounds that could justify a denial of leave to amend are undue delay, bad faith,
dilatory motive, prejudice, and futility.” In re Burlington Coat Factory Sec. Litig., 114 F.3d
1410, 1434 (3d Cir. 1997). In “assessing ‘futility,’ the district court applies the same standard of
legal sufficiency” used in 12(b)(6) motions. Id. Accordingly, the court must “accept as true all
the facts alleged in the complaint and all reasonable inferences that can be drawn from them,”
and deny a motion to amend only “where it is certain that no relief could be granted under any
set of facts that could be proved.” Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir.
1990).

IV. DISCUSSION
A. The Court Lacks Personal Jurisdiction Over WGCZ4
1. The Parties’ Arguments
As a threshold matter, WGCZ argues that it is not subject to specific jurisdiction because
it did not own or operate the XNXX.com website when the offending photograph of Plaintiff was
displayed on that site. (WGCZ Mem. at 7.) Putting ownership of the website to one side,
WGCZ also contends that specific jurisdiction is lacking because: (1) Plaintiff has not alleged
that WGCZ committed any acts aimed or purposely directed to Pennsylvania; (2) Plaintiff has
not alleged that her claims arise out of or relate to WGCZ’s contacts with Pennsylvania; and (3)
exercising jurisdiction over WGCZ “would be unreasonable and would fail to ‘comport with fair

play and substantial justice.’” (WGCZ Mem. 6-8 (quoting Lutz, 376 F. Supp. 3d at 464).)
In support of its arguments, WGCZ offers the Declaration of Robert Seifert, the
administrative director for both WGCZ and NKL. (Seifert Decl. ¶¶ 1, 9, ECF No. 77-2.) Seifert
states that “WGCZ does not own or operate the website XNXX.com, or any other websites
mentioned in the [A]mended [C]omplaint,” and it has not owned or operated XNXX.com since

4 Plaintiff does not contend that WGCZ is subject to general jurisdiction in Pennsylvania. (See
Pl.’s Opp./Cross-Motion Mem. at 3-4; see also WGCZ Mem. 5-6, ECF No. 77-1.) The Court agrees that
no basis exists to conclude that WGCZ “maintained systematic and continuous contacts with
[Pennsylvania]” as necessary to support the exercise of general jurisdiction. Marten, 499 F.3d at 296.
.
May of 2014, when WGCZ transferred ownership and operation of the site to NKL. (Id. ¶¶ 4,
10, 11.) Seifert further attests that:
WGCZ never has had and does not now have an office in Pennsylvania, and it is
not registered to do business in Pennsylvania. WGCZ has no Pennsylvania-based
business operations, no Pennsylvania employees, owns no Pennsylvania property,
rents no Pennsylvania property, and pays no Pennsylvania state taxes. WGCZ does
not hold any Pennsylvania bank accounts, has no Pennsylvania mailing address or
phone numbers, and does not have any designated agents residing in, domiciled in,
or doing business from Pennsylvania. WGCZ also does not sell products or provide
any services intentionally directed or aimed at Pennsylvania. None of WGCZ’s
officers or directors reside in or are domiciled in Pennsylvania. . . . WGCZ has
never filed a lawsuit in Pennylvania, nor has it sought the protection of any
Pennsylvania laws.

(Id. ¶¶ 5-6.) Finally, Seifert states that: WGCZ “did not expressly aim or purposefully direct
any conduct relating to the [A]mended [C]omplaint toward Pennsylvania or any Pennsylvania
resident. . . . WGCZ has not purposefully availed itself of the benefits or protections of the laws
of Pennsylvania; WGCZ does not operate any servers in Pennsylvania; . . . WGCZ has not
received any revenue from any website, photograph or image at issue in this case, and . . .
WGCZ has no physical or business presence in Pennsylvania.” (Id. ¶¶ 11.)
Plaintiff, in turn, argues that specific personal jurisdiction is appropriate based on
WGCZ’s internet presence and based on the theory that WGCZ purposefully availed itself of the
benefits and privileges of conducting business in the Commonwealth of Pennsylvania. (Pl.’s
Opp./Cross-Mot. Mem. at 4-7.) In support of her argument, Plaintiff cites to Ackourney v.
Sonallas Custom Tailors, 573 F. App’x 208, 211 (3d Cir. 2014), and Zippo Mfg. Co. v. Zippo
Dot Com, Inc., 952 F. Supp. 1119, 1123-24 (W.D. Pa. 1997). These cases stand for the
proposition that specific jurisdiction may be exercised over a defendant that establishes
minimum contact with a forum through cyberspace based commercial activities over the internet.
Ackourney, 573 F. App’x at 211; Zippo, 952 F. Supp. at 1123-24.
2. Plaintiff Fails to Plausibly Allege Specific Jurisdiction Over WGCZ
Plaintiff’s jurisdictional arguments as to WGCZ lack merit for two related reasons. First,
Plaintiff fails to identify plausible allegations or evidence to suggest that XNXX.com was owned
or operated by WGCZ when the allegedly offending conduct occurred. Plaintiff cannot establish

specific jurisdiction as to WGCZ if it did not own or operate XNXX.com during the relevant
time period because, a fortiori, if it did not own or operate the site, WGCZ would not be
responsible for purposely directing the offending content to Pennsylvania.
In the Amended Complaint, Plaintiff merely alleges that WGCZ was organized under the
laws of the Czech Republic and that it owns and operates XNXX.com. (Am. Compl. ¶¶ 34-35.)
However, according to the Seifert Declaration, XNXX.com has not been owned or operated by
WGCZ since May of 2014. (Seifert Decl. ¶ 10.) WGCZ also produced a copy of the Terms of
Service for XNXX.com, which identify NKL as the owner and operator of XNXX.com. (Id., Ex.
A.) Plaintiff herself relies upon a World Intellectual Property Organization (“WIPO”) arbitration
decision filed on April 28, 2020, in NKL Associates S.R.O. v. WhoisGuard Protected,

WhoisGuard, Inc. / James Andrade, Case No. D2020-0662. (Pl.’s Opp./Cross Mot. Ex. C, ECF
No. 83-4.) However, this decision identifies NKL as the owner and operator of XNXX.com.
Plaintiff also cites to a WIPO arbitration decision in WGCZ S.R.O. v. Whois Privacy
Services Pty Ltd./Murat Yikilmaz, Case No. D2014-0492. (Id., Ex. A, ECF No. 83-2.)
However, this WIPO decision was issued on June 17, 2014, and it pertains to a domain name
dispute that arose from events that transpired well before May of 2014, when, according to
Seifert, NKL assumed ownership and operation of XNXX.com. (Id.) This decision does nothing
to contradict the Seifert Declaration and does not establish WGCZ’s ownership or control over
XNXX.com after May of 2014. In short, Plaintiff has not identified any credible evidence to
counter the Seifert Declaration, nor any evidence to indicate that WGCZ owned or operated
XNXX.com at the time when Plaintiff’s image appeared on that site.
Plaintiff’s reliance on the sliding scale internet test is similarly misplaced. (See Pl.’s
Opp./Cross-Mot. Mem. 4-6 (citing Ackourney, 573 F. App’x at 211; Zippo, 952 F. Supp. at 1123-

24 (W.D. Pa. 1997).) Under this test, courts assess whether the defendant established minimum
contacts through cyberspace. Ackourney, 573 F. App’x at 211. Courts conducting this
assessment must look to the “nature and quality of commercial activity that an entity conducts
over the internet.” Zippo, 952 F. Supp. at 1124. The court must examine “the level of
interactivity and commercial nature of the exchange of information that occurs on the website.”
Id. A passive website that does little more than make information available to those who are
interested in it is not grounds for the exercise of personal jurisdiction. Ackourney, 573 App’x at
212. The middle ground is occupied by interactive websites where a user can exchange
information with the host computer. In these cases, the exercise of jurisdiction is determined by
examining the level of interactivity and commercial nature of the exchange of information that

occurs on the website. Zippo, 952 F. Supp. at 1124.
Plaintiff alleges that WGCZ has purposely availed itself of the benefits and privileges of
conducting business in the Commonwealth of Pennsylvania by maintaining a website that offers
a high degree of interactivity. (Am. Compl. ¶ 4 (“[A]ll Defendants purposely avail themselves of
conducting activities within the Commonwealth of Pennsylvania and their respective websites
actively engage Pennsylvania-based users and offer a high degree of interactivity with same.”).)
Plaintiff argues that specific jurisdiction is proper because WGCZ has a vast internet business
that reaches into the Commonwealth of Pennsylvania. Plaintiff cites to the existence of
XNXX.com as the foundation for her argument. Plaintiff argues that XNXX.com is the “181st
most visited site globally, the 157th most visited site in the United States, and receives about
16.3 million unique visitors per month in the United States.” (Pl.’s Opp./Cross-Motion at 5.)
Plaintiff points to this internet presence and argues that WGCZ has Pennsylvania customers who
uploaded and downloaded millions of pornographic images and videos. (Id. at 6.) Critically,

however, this argument ignores the absence of any evidence that Plaintiff’s claims arise out of or
relate to WGCZ’s alleged internet presence with respect to XNXX.com., which according to the
unrebutted Seifert Declaration, was owned and operated by another entity, NKL. WGCZ’s
operation of other allegedly interactive websites does not support personal jurisdiction in this
case because Plaintiff’s claims do not arise out of and are not related to those alleged websites.
Plaintiff’s argument does not satisfy the requirement that specific personal jurisdiction exists
only if the plaintiff’s claims “arise out of or relate to” the defendant’s specific activities.
Helicopteros, 466 U.S. at 414.
3. Plaintiff Is Not Entitled to Jurisdictional Discovery
Plaintiff is not entitled to jurisdictional discovery because she has failed to plausibly

plead facts or identify any evidence to make a threshold showing that specific personal
jurisdiction exists over WGCZ. Plaintiff bears the burden of demonstrating facts that support
personal jurisdiction. Pinker, 292 F.3d at 368. Jurisdictional discovery is proper if the plaintiff
has made a prima facie showing that personal jurisdiction exists. Toys “R” Us, Inc. v. Step Two,
S.A., 318 F.3d 446, 456 (3d Cir. 2003). To satisfy this showing, Plaintiff must present “factual
allegations that suggest ‘with reasonable particularity’ the possible existence of the requisite
‘contacts between [the party] and the forum state,’” Id. at 456. If a plaintiff presents factual
allegations that satisfy this standard, “the plaintiff’s right to conduct jurisdictional discovery
should be sustained.’” Id. However, the Third Circuit has also held that “a mere unsupported
allegation that the defendant ‘transacts business’ in an area is ‘clearly frivolous”’ for purposes of
determining whether jurisdictional discovery is warranted. Mass. Sch. of Law at Andover, Inc. v.
Am. Bar Ass’n, 107 F.3d 1026, 1042 (3d Cir. 1997) (affirming district court’s denial of
jurisdictional discovery where plaintiff merely averred that defendant conducted business in the

forum).
The allegation that WGCZ conducts business in the Commonwealth of Pennsylvania
amounts to nothing more than a bare allegation that cannot support a request to conduct
jurisdictional discovery. Id. As noted above, Plaintiff’s allegations related to WGCZ’s
ownership and operation of XNXX.com are unsubstantiated in the record. Plaintiff offers no
explanation of how jurisdictional discovery will reveal the requisite contacts or purposely
directed activities necessary to establish specific jurisdiction over WGCZ. Bare allegations,
without factual support, are insufficient to permit Plaintiff to conduct a fishing expedition under
the guise of jurisdictional discovery. Crockett v. Luitpold Pharmaceuticals, Inc., No. 19-0276,
2020 WL 3096527, at *5 n.6 (E.D. Pa. June 11, 2020); Katz v. DNC Serv. Corp., No. 16-5800,

2017 WL 5885672, at *7 (E.D. Pa. Nov. 29, 2017) (denying a request for jurisdictional discovery
where plaintiff failed to meet its burden of making out a threshold prima facie case of personal
jurisdiction); Kalon v. Koresko Fin. LP, No. 14-5216, 2020 U.S. Dist. Lexis 64116, at *12 n.8
(E.D. Pa. 2020) (denying request for jurisdiction discovery); See Barth v. Walt Disney Parks &
Resorts U.S., Inc., 697 F. App’x 119, 120 (3d Cir. 2017) (affirming denial of request where
“jurisdictional discovery would have been futile”).
WGCZ is a foreign defendant and it should not be subject to the burden of conducting
unnecessary and costly discovery in the United States without some showing on the part of
Plaintiff that such discovery is warranted.
C. Plaintiff’s Proposed Amendment Is Futile

Plaintiff seeks to amend her Amended Complaint to “add a count for successor liability
and to add NKL as a party[.]” (Pl.’s Opp./Cross-Mot. at 2.) As noted above, the Court
previously dismissed Plaintiff’s claims against Facebook, Imgur, and Reddit based on immunity
under CDA § 230(c). A review of the pleadings and exhibits attached thereto reflects that NKL
would likewise be entitled to immunity for the claims asserted in this action based on its
ownership and operation of XNXX.com. (Seifert Decl. ¶ 10; see also Am. Compl. Ex. P.)
Plaintiff describes XNXX.com as an “interactive platform by which Pennsylvanians upload and
download millions of pornographic images and videos.” (Pl.’s Opp./Cross-Motion at 6.)
Interactive websites and social media platforms are entitled to immunity under § 230(c) for
content provided by third parties. Review of Plaintiff’s Amended Complaint and Exhibit P
reflects that Plaintiff’s photograph was posted on XNXX.com by an individual, or individuals,
under the screen name(s) “endzeitH – NylonLuver - DebbyLynn – Ginger Snap –
easytiger511111.” (Am. Compl. Ex. P.) Immunity under § 230(c) applies when a third-party

places content on an interactive website or social media platform. (See 6/5/20 Mem.) Because
NKL is entitled to immunity under CDA § 230(c), further amendment of Plaintiff’s pleadings
would be futile.
V. CONCLUSION
For the foregoing reasons, WGCZ’s Motion to Dismiss will be granted, Plaintiff’s claims
against WGCZ will be dismissed for lack of personal jurisdiction, and Plaintiff’s Amended
Complaint will be dismissed.5 Plaintiff’s Cross-Motion to Amend her pleading to add NKL as a

defendant will be denied because the proposed amendment is futile.
An appropriate order follows.

BY THE COURT:

_/s/ John Milton Younge___________
Judge John Milton Younge

5 Having dismissed Plaintiff's claims against all named Defendants, Plaintiff's remaining claims
exist solely against Doe Defendants. See Mcginty v. Brennan, No. 15-6855, 2017 WL 1536417, at *3 n.6
(D.N.J. Apr. 27, 2017) (citing Baker v. United States, 642 Fed. App’x. 147, 152 (3d Cir. 2016) (“Case law
is clear that an action cannot be maintained solely against Doe defendants.”); Breslin v. Philadelphia, 92
F.R.D. 764, 765 (E.D. Pa. 1981) (“Given the identification of the remaining defendants only as ‘John
Doe,’ there is no method of serving the complaint in accord with due process, and no way that the action
can otherwise proceed.”)). Accordingly, Plaintiff’s Amended Complaint will be dismissed in its entirety.
Id.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10399409. Public record. Not legal advice.