# Selby v. Schroeder

> District Court, M.D. Pennsylvania · February 18, 2020

URL: https://www.frixlaw.com/law-library/cases/10408294

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** February 18, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

BECKY A. SELBY, : CIVIL ACTION NO. 1:19-CV-61
:
Plaintiff : (Chief Judge Conner)
:
v. :
:
HOLLY T. SCHROEDER and :
TENNESSEE WALKING HORSE :
BREEDERS & EXHIBITORS :
ASSOCIATION (TWHBEA), :
:
Defendants :

MEMORANDUM
Plaintiff Becky A. Selby commenced this lawsuit against defendants Holly T.
Schroeder and Tennessee Walking Horse Breeders’ & Exhibitors’ Association (the
“Association”), asserting breach of contract and various tort claims. Defendants
move to dismiss for lack of subject-matter jurisdiction, lack of personal jurisdiction,
improper venue, and failure to state a claim for relief. (Docs. 30, 39). We need not
reach defendants’ arguments regarding subject-matter jurisdiction, venue, or
sufficiency of the complaint because this court lacks personal jurisdiction over both
defendants.
I. Factual Background & Procedural History
Selby is a citizen of Pennsylvania, with her current residence in Halifax,
Pennsylvania. (Doc. 26 ¶ 8). Schroeder is a citizen of Tennessee and works as a
“professional breeder, raiser, and seller of horses,” selling horses in Tennessee and
surrounding states, as well as internationally. (Id. ¶¶ 9, 9(a)). The Association is a
nonprofit organization located in Tennessee that “collects, records, and preserves
the pedigree of Tennessee Walking Horses and maintains a registry” of those
details. (Id. ¶¶ 10, 10(a)).
On October 2, 2017, Schroeder offered for sale—via social media—a blind, 7-

year-old female horse named “Niko.” (Id. ¶¶ 11, 15, 17(a); Doc. 1-2 at 2). Niko was,
and continues to be, registered in Schroeder’s name with the Association. (Doc. 26
¶¶ 12-13). Selby and Schroeder entered into an oral agreement in principle for the
sale of Niko on October 3, 2017. (Id. ¶ 17). Selby alleges that the agreement consists
of the following terms: due to the extensive care Niko required, Schroeder would
have Niko inseminated and then convey her to Selby in exchange for (1) Selby
providing lifetime care for Niko at Selby’s expense, and (2) giving Schroeder Niko’s

first healthy foal. (Id. ¶¶ 17, 22). These requirements were “in lieu” of Schroeder’s
$1,000.00 asking price for the horse. (Id. ¶ 18; Doc. 1-2 at 35 ¶ 2(b)). Schroeder also
purportedly agreed that, following the birth of Niko’s first foal while in Selby’s care,
Schroeder would transfer Niko’s registration to Selby. (Doc. 26 ¶ 21).
At the time of sale, Niko was being sheltered at a veterinary hospital in
Kentucky. (Id. ¶¶ 23-24). Per the parties’ negotiations, Selby, at her own expense,

drove to Kentucky, picked up Niko at the veterinary hospital, and transported the
mare back to Pennsylvania. (Id. ¶¶ 23-24). Selby alleges that Schroeder then
reneged on the parties’ oral agreement by demanding that she receive all foals born
to Niko—not just the firstborn—and that Selby care for Niko for life but without
transfer of registration or ownership. (Id. ¶ 25).
Selby asserts that she and her attorney attempted to amicably resolve the
dispute with Schroeder and the Association throughout 2018, to no avail. (Id. ¶¶ 28-
38). Schroeder purportedly refused to honor the terms of the agreement, and the
Association declined to transfer Niko’s registration to Selby because Schroeder had
verbally objected to the change. (Id. ¶¶ 26-30, 38).

On January 9, 2019, Selby learned that Schroeder had filed a criminal
complaint in Kentucky asserting that Selby had stolen Niko. (Id. ¶¶ 39-40). The
next day, Selby commenced this civil action against Schroeder alleging breach of
contract, defamation, and fraud. Schroeder moved to dismiss all counts under
various provisions of Federal Rule of Civil Procedure 12, and in response Selby
amended her complaint. Selby’s amended complaint joins the Association as a
defendant under the breach of contract count, adds a claim against Schroeder for

malicious prosecution, and leaves much of the rest of the original complaint intact.
Both defendants move to dismiss the amended complaint under Rule 12, and those
motions are ripe for disposition.
II. Legal Standard
Pursuant to Federal Rule of Civil Procedure 12(b)(2), a party may move to
dismiss a complaint for lack of personal jurisdiction. FED. R. CIV. P. 12(b)(2). In

ruling on a Rule 12(b)(2) motion, the court must accept the allegations in the
complaint as true and draw all reasonable inferences supported by the well-pleaded
factual allegations in the plaintiff’s favor. Pinker v. Roche Holdings Ltd., 292 F.3d
361, 368 (3d Cir. 2002); Carteret Sav. Bank, FA v. Shushan, 954 F.2d 141, 142 n.1
(3d Cir. 1992). The court’s review is not limited to the face of the pleadings, as
consideration of affidavits submitted by the parties is both appropriate and
required. Patterson by Patterson v. F.B.I., 893 F.2d 595, 603-04 (3d Cir. 1990)
(citation omitted); see Carteret Sav. Bank, 954 F.2d at 146.
Although the plaintiff bears the ultimate burden of proving personal

jurisdiction over a defendant, Mellon Bank (East) PSFS Nat’l Ass’n v. Farino, 960
F.2d 1217, 1223 (3d Cir. 1992), the plaintiff need not make such a showing at the
pleading stage of litigation. Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324, 330
(3d Cir. 2009). In the absence of a hearing, a court must accept the plaintiff’s
jurisdictional allegations as true and construe any disputed facts in favor of the
plaintiff. Id. (citations omitted); O’Connor v. Sandy Lane Hotel Co., 496 F.3d 312,
316 (3d Cir. 2007). Once a defendant has challenged the court’s exercise of personal

jurisdiction, the plaintiff must “prov[e] by affidavits or other competent evidence
that jurisdiction is proper.” Metcalfe, 566 F.3d at 330 (quoting Dayhoff Inc. v. H.J.
Heinz Co., 86 F.3d 1287, 1302 (3d Cir. 1996)). Personal jurisdiction must be proven
by a preponderance of the evidence. Control Screening LLC v. Tech. Application &
Prod. Co. (Tecapro), HCMC-Vietnam, 687 F.3d 163, 167 (3d Cir. 2012) (quoting
Carteret Sav. Bank, 954 F.2d at 146).

III. Discussion
A federal court may exercise personal jurisdiction over a nonresident of the
forum state to the extent authorized by the law of the forum. See FED. R. CIV. P.
4(k)(1)(A). The Pennsylvania Long-Arm Statute grants jurisdiction coextensive
with that permitted by the Due Process Clause of the Fourteenth Amendment. See
42 PA. CONS. STAT. § 5322(b). Our constitutional inquiry is guided by the “minimum
contacts” test established in International Shoe Co. v. Washington, 326 U.S. 310
(1945). Under this test, the plaintiff must show that the nonresident defendant has
“certain minimum contacts with [the forum] such that the maintenance of the suit
does not offend traditional notions of fair play and substantial justice.” Int’l Shoe,

326 U.S. at 316 (internal quotation marks and citation omitted); see also Marten
v. Godwin, 499 F.3d 290, 296 (3d Cir. 2007). The focus of the minimum contacts
analysis is “the relationship among the defendant, the forum, and the litigation,”
Shaffer v. Heitner, 433 U.S. 186, 204 (1977), such that the defendant has fair warning
that he may be subject to suit in that forum. Gen. Elec. Co. v. Deutz AG, 270 F.3d
144, 150 (3d Cir. 2001); Marten, 499 F.3d at 296. “[T]he mere unilateral activity of
those who claim some relationship with a nonresident defendant cannot satisfy the

requirement of contact with the forum State.” World-Wide Volkswagen Corp.
v. Woodson, 444 U.S. 286, 298 (1980) (internal citation omitted).
Federal courts must possess one of two forms of personal jurisdiction to
comport with these principles. See D’Jamoos ex rel. Estate of Weingeroff v. Pilatus
Aircraft Ltd., 566 F.3d 94, 102 (3d Cir. 2009) (citing Helicopteros Nacionales de
Colombia v. Hall, 466 U.S. 408, 414-15 (1984)). General jurisdiction allows a court to

exercise jurisdiction over all claims against a party that possesses contacts with the
forum state so “‘systematic and continuous’ as to render them essentially at home”
there. Daimler AG v. Baumen, 571 U.S. 117, 127 (2014) (quoting Goodyear Dunlop
Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (citing Helicopteros, 466
U.S. at 414 n.9)); Chavez v. Dole Food Co., 836 F.3d 205, 223 (3d Cir. 2016) (en banc).
Specific jurisdiction, on the other hand, allows the court to hear only claims arising
out of or relating to the defendant’s contacts with the forum state. Helicopteros, 466
U.S. at 414 n.8; Telcordia Tech Inc. v. Telkom SA Ltd., 458 F.3d 172, 177 (3d Cir.
2006).
A. Personal Jurisdiction Over Defendants
Selby does not contend that either defendant is subject to general personal

jurisdiction in Pennsylvania, nor could she. Applying Daimler to the facts in the
amended complaint renders general jurisdiction inapt. Both defendants are from
Tennessee, and neither has contacts with Pennsylvania that are so “systematic and
continuous as to render them essentially at home” in the Commonwealth. See
Daimler, 571 U.S. at 127 (citation omitted). Consequently, Selby must demonstrate
specific jurisdiction over defendants for her breach of contract and tort claims to

avoid dismissal. Selby can attempt to make such a showing through the traditional
“minimum contacts” test or—because some of her claims allege intentional torts—
under the “effects test” outlined in Calder v. Jones, 465 U.S. 783 (1984). Because the
relevant forum contacts Selby alleges are so attenuated, we conclude that Selby
cannot establish specific personal jurisdiction under either test.
To exercise specific jurisdiction over a defendant under the traditional
“minimum contacts” test, the court must find that (1) the defendant purposefully

directed its activities at the forum, (2) each cause of action “arise[s] out of or
relate[s] to at least one” of the defendant’s activities, and (3) the exercise of
jurisdiction “comport[s] with fair play and substantial justice.” D’Jamoos, 566 F.3d
at 102 (internal quotation marks and citations omitted); O’Connor, 496 F.3d at 317.
The purposeful-availment and relatedness inquiries are often described as
requiring “minimum contacts” between the defendant and the relevant forum.
re Chocolate Confectionary Antitrust Litig., 602 F. Supp. 2d 538, 558 (M.D. Pa. 2009)
(Conner, J.) (citing Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d 446, 451 (3d Cir.
2003)). The defendant must have “purposefully avail[ed] itself of the privilege of

conducting activities within the forum,” but physical presence in the forum is not
required. O’Connor, 496 F.3d at 317 (quoting Hanson v. Denckla, 357 U.S. 235, 253
(1958)) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)).
“Unilateral activity” by a plaintiff “claim[ing] some relationship with a nonresident
defendant” is insufficient to establish that the defendant purposely directed its
activities at the forum. D’Jamoos, 566 F.3d at 103 (quoting Hanson, 357 U.S. at 253);
O’Connor, 496 F.3d at 317. Determinations of specific jurisdiction are generally

claim specific because “the analysis depends on the relationship between the claims
and contacts.” Marten, 499 F.3d at 296 (citing Remick v. Manfredy, 238 F.3d 248,
255 (3d Cir. 2001) (collecting cases)).
A plaintiff advancing an intentional tort claim may alternatively establish
specific jurisdiction under the “effects test” outlined in Calder v. Jones, 465 U.S. 783
(1984). IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 259-60 (3d Cir. 1998). The

Calder effects test is to be applied narrowly. Id. at 263-64; Marks v. Alfa Grp., 369 F.
App’x 368, 370 (3d Cir. 2010) (nonprecedential). Under this test, a court may
exercise specific jurisdiction over a defendant when the plaintiff shows that (1) the
defendant committed an intentional tort; (2) “[t]he plaintiff felt the brunt of the
harm in the forum” rendering that forum the “focal point” of the harm resulting
from the tort; and (3) the defendant “expressly aimed” his or her “tortious conduct
at that forum such that the forum can be said to be the focal point of the tortious
activity.” Marten, 499 F.3d at 297 (emphasis added) (quoting IMO Indus., Inc., 155
F.3d at 265-66).
We begin by summarizing Selby’s claims. Under Count 1,1 Schroeder

allegedly breached the October 2017 agreement by refusing to transfer ownership
and registration of Niko to Selby. (Doc. 26 ¶ 44(a)(i)). Count 1 also asserts that the
Association breached “an agreement with [Selby] regarding membership in the
Association” by “refusing to transfer registration of the mare” despite Selby
following the Association’s rules. (Id. ¶ 44(a)(ii)). In Count 2, Schroeder purportedly
defamed Selby by swearing out a false criminal complaint. (Id. ¶ 44(b)). According
to Count 3, Schroeder fraudulently induced Selby to enter an agreement, the terms

of which Schroeder had no intention of honoring once Selby had substantially
performed her obligations. (Id. ¶ 44(c)). And in Count 4, Selby alleges that
Schroeder is liable for malicious prosecution for filing a baseless criminal complaint
against her. (Id. ¶ 44(d)). Both defendants have moved for dismissal under Rule
12(b)(2), so we take each defendant in turn.
1. The Association (Count 1)

There is no basis for exercising personal jurisdiction over the Association
under the minimum contacts test, the only test that applies to this breach of
contract claim. The reason is quite simple: Selby has not pled, let alone established
by competent evidence, any forum contacts by the Association. Every action that

1 Selby does not delineate her causes of action by count; we apply this
terminology sua sponte for clarity and ease of reference.
Selby alleges the Association took relative to the instant breach of contract claim
occurred outside of Pennsylvania. (See Doc. 26 ¶¶ 37-38, 43, 44(a)(ii)). Moreover, in
response to the Association’s Rule 12(b)(2) motion, Selby discusses only subject-

matter jurisdiction, a challenge the Association has not raised. (See generally Doc.
41 at 9-10).
Selby contends that an “analysis of personal jurisdiction” is not required
because this court can exercise supplemental jurisdiction over the claim against the
Association pursuant to 28 U.S.C. § 1367. (See id.) Selby is incorrect. Due process
requires this court to have personal jurisdiction over every defendant before it, see
Bristol-Myers Squibb Co. v. Superior Court of California, 582 U.S. __, 137 S. Ct.

1773, 1783 (2017) (quoting Rush v. Savchuk, 444 U.S. 320, 332 (1980)), and Section
1367 is concerned with subject-matter jurisdiction for claims, not in personam
jurisdiction. See 28 U.S.C. § 1367; 4A CHARLES ALAN WRIGHT ET AL., FEDERAL
PRACTICE AND PROCEDURE § 1069.7 (4th ed. 2019). Because Selby has failed to
establish that the Association directed any relevant activities at the forum state,
O’Connor, 496 F.3d at 317, we cannot exercise personal jurisdiction over this

defendant.
2. Schroeder (Counts 1 through 4)
Selby’s attempts to establish minimum contacts for Schroeder likewise fall
short. Selby initially missteps by failing to analyze the alleged forum contacts on a
claim-by-claim basis. (See generally Doc. 36 at 7-10). Specific personal jurisdiction
determinations are “claim specific”; simply because the court has personal
jurisdiction over a defendant regarding one particular claim “does not necessarily
mean it has personal jurisdiction over that same defendant” as to other claims
asserted. See Remick, 238 F.3d at 255 (citations omitted). The four claims at issue
here concern different alleged wrongdoing and cannot be lumped together or

aggregated for jurisdictional purposes. See id.
More problematic for Selby is that the forum contacts she proffers are
insufficient for any of the claims asserted against Schroeder. The only contacts
with Pennsylvania that Selby alleges are that (1) Schroeder communicated with
Selby, a Pennsylvania resident, via social media during negotiations for the sale of
Niko; (2) Schroeder “directed her solicitation” of goods and services (in particular,
Niko) toward out-of-state customers, including Selby; and (3) Schroeder agreed to a

sale whereby Niko would be transported from Kentucky to live in Pennsylvania.
(See Doc. 36 at 7-10).
We initially observe that none of these contacts have any connection to
Selby’s claims for defamation or malicious prosecution. They concern only breach
of contract and fraud. We further observe that Selby’s reasoning for why these
claims are properly brought in Pennsylvania actually undercuts her position. Selby

repeatedly contends that Schroeder did not just target Selby, but also potential
buyers in numerous other states and countries. For example, Selby asserts that
Schroeder “directed her solicitation towards everyone, not just persons in”
Tennessee, (id. at 7), “reached out over the internet to the rest of the world,” (id. at
8), offered Niko for sale “in multiple states . . . including Pennsylvania and many
others,” (id.), reached “out to [Selby] and to others in other states and countries,”
(id. at 9), and “announced [the sale] to the rest of the world,” (id.). These assertions
demonstrate that Schroeder was not specifically targeting or directing advertising
at Pennsylvania; she simply found a willing buyer who happened to be from
Pennsylvania.

Selby also maintains that the current Pennsylvania presence of Niko and her
firstborn foal is a relevant forum contact, but even assuming this is true it would not
tip the scales. At the time the oral agreement was formed, Niko—the primary
object of the contract—was being sheltered in Kentucky. And during formation, the
parties communicated entirely online or through cellular telephones—neither party
traveled to the other’s location or physically mailed documents into the other’s
state. In sum, Schroeder’s sparse and coincidental contacts with Pennsylvania

were not “instrumental in either the formation of the contact or its breach.” Gen.
Elec. Co. v. Deutz AG, 270 F.3d 144, 150 (3d Cir. 2001) (citation omitted). Nor are
they material to the related fraud allegations. We thus conclude that Schroeder’s
attenuated contacts with Pennsylvania are insufficient to establish personal
jurisdiction over Schroeder on any claims in the amended complaint.2
B. Dismissal or Transfer of Amended Complaint

Selby does not request transfer as an alternative to dismissal, nor do
defendants discuss it. Nevertheless, we must consider whether transfer is in the

2 We reach this conclusion under either the traditional minimum contacts test
or the Calder effects test. As the foregoing analysis demonstrates, none of
Schroeder’s allegedly tortious conduct was “expressly aimed” at Pennsylvania. See
Marten, 499 F.3d at 297.
interest of justice. See Danziger & De Llano, LLP v. Morgan Verkamp LLC, 948
F.3d 124, 132 (3d Cir. 2020).
The basis for transfer is 28 U.S.C. § 1631. Section 1631 addresses the specific

situation where, as here, “a civil action is filed in a court . . . and that court finds
that there is a want of jurisdiction.” See 28 U.S.C. § 1631; Island Insteel Sys., Inc.
v. Waters, 296 F.3d 200, 218 & n.9 (3d Cir. 2002) (explaining that Section 1631
permits transfer for lack of personal jurisdiction).3 The statute provides that the
original court “shall, if it is in the interest of justice, transfer such action . . . to any
other such court” in which the case could have been brought when it was filed. 28
U.S.C. § 1631. Thus, a party seeking transfer under Section 1631 must show that

(1) the claim or claims could have been properly brought in the intended transferee
court, and (2) transfer would be in the interest of justice.
We decline to perform a detailed transfer analysis without first hearing from
the parties. We leave to the litigants the task of determining, in the first instance,
where this case may be transferred and whether transfer would be in the interest of
justice, accounting for such considerations as venue and statutes of limitations. See

Danziger & De Llano, 948 F.3d at 132.

3 There is a circuit split regarding whether Section 1631’s use of the word
“jurisdiction” includes personal jurisdiction or contemplates only subject-matter
jurisdiction. See 15 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND
PROCEDURE § 3842 & n.18 (4th ed. 2008). Third Circuit decisions, although never
squarely addressing the question, clearly suggest that Section 1631 permits transfer
for lack of personal jurisdiction. See Chavez, 836 F.3d at 224 & n.100; D’Jamoos, 566
F.3d at 107; Island Insteel Sys., 296 F.3d at 218 & n.9; Renner v. Lanard Toys Ltd.,
33 F.3d 277, 284 (3d Cir. 1994); Gehling v. St. George’s Sch. of Med., Ltd., 773 F.2d
539, 544 (3d Cir. 1985).
IV. Conclusion
We will grant in part defendants’ motions (Doc. 30, 39) to dismiss under
Federal Rule of Civil Procedure 12 to the extent that we find that this court lacks

personal jurisdiction over defendants as to all claims in the amended complaint.
We will defer ruling on whether to dismiss these claims without prejudice or
transfer them to another district court pending receipt of supplemental briefing.
An appropriate order shall issue.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania

Dated: February 18, 2020

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10408294. Public record. Not legal advice.