EYAJAN v. NESCO RESOURCES LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

SHEILA M. EYAJAN, )

Plaintiff, ) C.A. No. 1:20-cv-204

)

v. )

) RE: Motions to Dismiss the

) Complaint (ECF Nos. 20 & 21)

NESCO RESOURCES, LLC, et al., )

Defendants. )

MEMORANDUM OPINION

Plaintiff Sheila Marie Eyajan, an adult resident of Erie County, Pennsylvania,

commenced this proceeding on July 17, 2020, by filing a motion for leave to proceed in forma

pauperis and attaching to it a “Judicial Emergency Complaint” directed against six named

defendants. ECF No. 1. Like her three prior related complaints in this Court, it is far from clear,

but it appears to allege the Defendants made defamatory and/or false statements in connection

with dismissed Ohio state court and Equal Employment Opportunity Commission proceedings.

Three Defendants have moved to dismiss the Complaint. Defendants Nesco Resource,

LLC and Gross & Gross, LLC filed a joint motion asserting the Court lacks personal jurisdiction

under Federal Rule of Civil Procedure 12(b)(2) and fails to state a claim upon which relief can be

granted under Federal Rule of Civil Procedure 12(b)(6). ECF No. 20. Defendant Shaw also filed

a motion to dismiss that asserts a failure to state a claim. ECF No. 21. For the reasons set forth

below, the motions will be granted.

I. BACKGROUND

A. Relevant Facts

In the summer of 2016, Plaintiff worked for Nesco in Lake County, Ohio, as a “temp”

worker. ECF No. 5-2 ¶ 4. While employed by Nesco, she sustained a work-related injury, filed a

claim for workers’ compensation through the Ohio Bureau of Workers’ Compensation and the

Ohio Industrial Commission, and received compensation related to her claim. Id. ¶ 6.

After Plaintiff’s employment with Nesco ended, she filed a charge of employment

discrimination against Nesco with the United States Equal Employment Opportunity

Commission in Cleveland, Ohio. Gross & Gross represented Nesco, ECF No. 5-1, and the EEOC

dismissed the case.

In 2017, Plaintiff filed an action against Nesco in the Court of Common Pleas for Lake

County, Ohio, alleging that Nesco discriminated against her and retaliated against her by

terminating her employment. ECF No. 21-2. Defendant Shaw represented Nesco in connection

with that case, and Defendant Garbiso submitted an affidavit detailing her former role as

Plaintiff’s supervisor and the circumstances surrounding Plaintiff’s post-injury employment.

ECF No. 5-2. In dismissing Plaintiff’s retaliation claim, the Court of Common Pleas noted

“conflicting evidence” whether she was terminated, but concluded that if she was terminated it

“would have been related to her work infractions and to her significant personal and medical

problems unrelated to her workers[’] compensation claim.” ECF No. 21-2 at 9. Plaintiff

subsequently filed a pair of related suits in this Court, and each was dismissed as well. Eyajan v.

Nesco Res. LLC, No. 1:18-CV-222, 2019 U.S. Dist. LEXIS 167207 (W.D. Pa. Sept. 27, 2019);

Eyajan v. Nesco Res. LLC, No. 1:19-CV-34, 2019 WL 1472313 (W.D. Pa. Apr. 3, 2019).

B. Procedural History

Plaintiff brought this action pro se against Defendants Nesco Resource, LLC, Gross &

Gross, LLC, Angela Garbiso, Christopher Shaw, the Equal Employment Opportunity

Commission’s Cleveland Field Office, and Maria Colon. Her claims arise out of her former

employment with Nesco and subsequent actions alleging disability-based discrimination that she

brought in, and were dismissed by, the EEOC and the Court of Common Pleas of Lake County,

Ohio. In her Complaint, Plaintiff references 28 U.S.C. § 4101, 18 U.S.C. § 1001, 18 U.S.C.

§ 1028, 18 U.S.C. § 1028A, 18 U.S.C. § 1038, and 18 U.S.C. § 1038(b) to assert claims for

defamation, fraud, false statements, and false information. There is no evidence of Defendants

Garbiso, Colon, or the EEOC ever having been served or waiving service. Defendants Nesco,

Gross, and Shaw filed motions to dismiss, ECF Nos. 20 & 21, Plaintiff filed a brief in opposition,

ECF No. 31, and Defendants Nesco and Gross filed a reply. ECF No. 32. The motion is fully

briefed and is ripe for disposition by this Court.

II. STANDARDS OF REVIEW

A. Personal Jurisdiction

Personal jurisdiction may be conferred by consent of the parties, either expressly or by

failure to object. Zelson v. Thomforde, 412 F.2d 56, 59 (3d Cir. 1969). Accordingly, a district

court may not sua sponte dismiss for lack of personal jurisdiction where a defendant has entered

an appearance by filing a motion. Id.

When a defendant raises a jurisdictional defense under Federal Rule of Civil Procedure

12(b)(2), the plaintiff bears the burden of demonstrating that jurisdiction is proper. BP Chems.

Ltd. v. Formosa Chem. & Fibre Corp., 229 F.3d 254, 259 (3d Cir. 2000). “The plaintiff meets

this burden and presents a prima facie case for the exercise of personal jurisdiction by

establishing with reasonable particularity sufficient contacts between the defendant and the

forum state.” Mellon Bank (E.) PSFS, Nat’l Ass’n v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992)

(internal quotation omitted). The plaintiff may not rely on “mere allegations” or “the bare

pleadings alone,” but “must respond with actual proofs,” such as “sworn affidavits or other

competent evidence.” Time Share Vacation Club v. Atl. Resorts, Ltd., 735 F.2d 61, 66 n.9 (3d

Cir. 1984).

Federal district courts sitting in Pennsylvania have personal jurisdiction over non-resident

defendants to the extent permissible under Pennsylvania law. Mellon Bank, 960 at 1221; Fed. R.

Civ. P. 4(e). Pennsylvania's long-arm statute extends jurisdiction to the limit of federal due

process. Mellon Bank, 960 F.2d at 1221 (citing 42 Pa. Cons. Stat. § 5322(b)). Thus, the Court

need determine only whether the exercise of personal jurisdiction over Defendants comports with

due process. Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 96 (3d Cir. 2004).

Due process requires that a defendant has sufficient “minimum contacts [with the forum

state] such that the maintenance of the suit does not offend traditional notions of fair play and

substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); see also Carteret

Sav. Bank, FA v. Shushan, 954 F.2d 141, 145 (3d Cir. 1992). A defendant’s contacts with the

forum state may support either general or specific jurisdiction. A court may exercise general

personal jurisdiction only when a defendant is “essentially at home” in the state. See Goodyear

Dunlop Tires Operations, S. A. v. Brown, 564 U.S. 915, 919 (2011). “[A]n individual is subject

to general jurisdiction in her place of domicile.” Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct.,

141 S. Ct. 1017, 1024 (2021) (citing Daimler AG v. Bauman, 571 U.S. 117, 137 (2014)).

Specific jurisdiction “is invoked when the claim is related to or arises out of the

defendant’s contacts with the forum[; thus,] the focus must be on minimum contacts.” Carteret

Sav. Bank, 954 F.2d at 149 (internal quotations omitted). A court evaluating whether a

defendant’s contacts with the forum support specific jurisdiction undertakes a three-part inquiry.

First, the defendant must have purposefully directed its activities at the forum. Second, the

litigation must arise out of or relate to at least one of those activities. And third, if the first two

requirements have been met, a court may consider whether the exercise of jurisdiction otherwise

comports with fair play and substantial justice. D’Jamoos v. Pilatus Aircraft Ltd., 566 F.3d 94,

102 (3d Cir. 2009) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985)).

When a district court determines there is a “want of jurisdiction,” the court “shall, if it is

in the interest of justice, transfer [the case] to any other such court in which the action . . . could

have been brought at the time it was filed.” Chavez v. Dole Food Co., 836 F.3d 205, 224 (3d Cir.

2016) (quoting 28 U.S.C. § 1631).

B. Motions to Dismiss

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal

sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a

motion to dismiss, the court is not opining on whether the plaintiff will be likely to prevail on the

merits; rather, the plaintiff must only present factual allegations sufficient “to raise a right to

relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see

also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint should be dismissed pursuant to

Rule 12(b)(6) only if it fails to allege “enough facts to state a claim to relief that is plausible on

its face.” Twombly, 550 U.S. at 570. In making this determination, the court must accept as true

all well pleaded factual allegations in the complaint and view them in a light most favorable to

the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002).

While a complaint does not need detailed factual allegations to survive a motion to

dismiss, it must provide more than labels and conclusions. Twombly, 550 U.S. at 555. A

“formulaic recitation of the elements of a cause of action will not do.” Id. Moreover, a court need

not accept inferences drawn by a plaintiff if they are unsupported by the facts as set forth in the

complaint. See Cal. Pub. Employee Ret. Sys. v. Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004)

(citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court

accept legal conclusions disguised as factual allegations. Twombly, 550 U.S. at 555.

Expounding on the Twombly and Iqbal line of cases, the Third Circuit has articulated the

following three-step approach:

First, the court must ‘tak[e] note of the elements a plaintiff must

plead to state a claim.’ Second, the court should identify

allegations that, ‘because they are no more than conclusions, are

not entitled to the assumption of truth.’ Finally, ‘where there are

well-pleaded factual allegations, a court should assume their

veracity and then determine whether they plausibly give rise to an

entitlement for relief.’

Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting Santiago v.

Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)). This determination is “a context-specific

task that requires the reviewing court to draw on its judicial experience and common sense.”

Iqbal, 556 U.S. at 679.

The district court has substantial discretion in allowing plaintiffs to amend a complaint

that fails to state a claim, and modern rules of pleading generally counsel in favor of such

amendments. Oran v. Stafford, 226 F.3d 275, 291 (3d Cir. 2000). However, this does not mean

that a district court must allow a plaintiff to amend a complaint if amendment would be futile. Id.

Amendment is futile where the complaint, as amended, would fail to state a claim upon which

relief could be granted. Id.; see also Cowell v. Palmer Twp., 263 F.3d 286, 296 (3d Cir. 2001).

C. Pro Se Filings

Because Plaintiff is proceeding pro se, the allegations in the complaint are held to “less

stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519,

520-521 (1972). If the court can reasonably read a pro se litigant’s pleadings to state a valid

claim upon which relief could be granted, it should do so despite the litigant’s failure to cite

proper legal authority, confusion of legal theories, poor syntax and sentence construction, or

unfamiliarity with pleading requirements. See Boag v. MacDougall, 454 U.S. 364, 365 (1982);

United States ex rel. Montgomery v. Bierley, 414 F.2d 552, 555 (3d Cir. 1969). Thus, the Court

may consider facts and make inferences where appropriate. But any pleading must still contain

“sufficient factual matter; accepted as true; to state a claim to relief that is plausible on [its]

face.’” Fantone v. Latini, 780 F.3d 184, 193 (3d Cir. 2015) (citation omitted).

III. ANALYSIS

A. The Court Lacks Personal Jurisdiction Over Defendants Nesco and Gross

By failing to object in his Motion to Dismiss, Defendant Shaw has consented to the

Court’s exercise of personal jurisdiction. Defendants Nesco and Gross objected in their motion,

however, so Plaintiff bears the burden of demonstrating personal jurisdiction over each is proper.

The Court lacks general jurisdiction because neither is “at home” in Pennsylvania. Goodyear,

564 U.S. at 919. Plaintiff concedes as much in her Opposition to the Defendants’ Motion to

Dismiss. ECF No. 31 at 8 (“Each Defendant listed in the complaint is a citizen of the State of

Ohio where the Plaintiff is a citizen of the State of Pennsylvania.”). Nor may the Court exercise

specific jurisdiction. Each of the Defendants’ actions detailed in the Complaint transpired in and

was directed at Ohio. Defendant Nesco employed Plaintiff in Ohio, Defendant Garbiso submitted

her affidavit in Ohio, and the Defendant attorneys acted in connection with the proceedings in

Ohio. Nothing the Defendants did took place in or was directed at Pennsylvania. Plaintiff fails to

address this absence of personal jurisdiction in her opposition. Instead, she mistakenly discusses

subject matter jurisdiction. ECF No. 31 at 9.

Under these facts, the Court does not have personal jurisdiction over Defendants Nesco

and Gross. Although authority to dismiss or transfer the action can be found under § 1631, the

interests of justice would not be served by doing so. See 28 U.S.C. § 1631. Plaintiff has not

properly served multiple defendants and has not suggested an appropriate destination venue.

Consequently, the Court will dismiss this action for want of personal jurisdiction.

B. The Complaint Fails to State a Claim Against Defendant Shaw

None of the statutes cited by Plaintiff provide a proper basis for civil claims. Plaintiff

asserts Count I, “Libel and Slander,” under 28 U.S.C. § 4101. As other courts have noted, a

private cause of action is not available under 28 U.S.C. § 4101—the statute merely defines

defamation for the purposes of judicial recognition of foreign defamation judgments. Stockstill v.

Fresno Dep’t of Soc. Servs., No. 1:19-cv-00889, 2020 WL 1274622, at *11 (E.D. Cal. Mar. 17,

2020). “[T]here is no federal claim [under the statute] for simple defamation by a private actor.”

Slottke v. Wis. Dep’t of Workforce Dev., 734 F. App’x 354, 355 (7th Cir. 2018). Plaintiff asserts

Counts II – IV of the Complaint under 18 U.S.C. § 1001, 18 U.S.C. § 1028 and 1028A, and 18

U.S.C. § 1038. All three cited statutes are in Title 18, which is part of the federal criminal code.

See, e.g., Pellegrino v. U.S. Transp. Sec. Admin., 896 F.3d 207, 224 (3rd Cir. 2018) (“ATF

officers are authorized under Title 18—the federal criminal code . . .”). A private citizen cannot

bring criminal claims, “as private persons do not have a judicially cognizable interest in the

prosecution . . . of another.” Kent v. Vinceguerra, 477 F. App’x 6, 8 (3d Cir. 2012) (quoting

Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)).

Even if the Court could reasonably read the Complaint to assert claims for defamation or

fraud under Pennsylvania or Ohio state law, those claims would still fail. First, the statute of

limitations for defamation claims under both Ohio and Pennsylvania law is one year. Ohio Rev.

Code Ann. §2305.11(A) (“An action for libel, slander … shall be commenced within one year

after the cause of action accrued.”); 42. Pa. Cons. Stat. § 5523 (“The following actions and

proceedings must be commenced within one year: (1) An action for libel, slander or invasion of

privacy.”). Plaintiff’s allegations relate to events she claims occurred between August 16, 2016,

and July 30, 2018. Plaintiff filed the Complaint on September 1, 2020—more than two years

after the last allegedly defamatory act. Any state-law claim for defamation is thus time barred.

Likewise, to succeed in a fraud case, both Ohio and Pennsylvania law require

establishing the same elements: (1) a representation; (2) which is material to the transaction at

hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or

false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the

misrepresentation; and (6) the resulting injury was proximately caused by the reliance. See

Gruenwald v. Advanced Comput. Applications, Inc., 730 A.2d 1004, 1014 (Pa. Super. Ct. 1999);

Burr v. Stark Cnty. Bd. of Cnty. Comm’rs., 491 N.E.2d 1101, 1105 (Ohio 1986) (quoting Cohen

v. Lamko, Inc. 462 N.E.2d 407, 409 (Ohio 1984)). But even accepting all facts alleged as true,

Plaintiff cannot prove causation or justifiable reliance. To the extent Plaintiff’s Complaint could

be construed to assert a state law claim for fraud, it would be based on Defendant Shaw’s

conflicting arguments on behalf of Nesco in the retaliation action in the Lake County Court of

Common Pleas. But the Lake County Court of Common Pleas did not rely on Defendant Shaw’s

statements to determine there was no retaliation. (ECF No. 21-2 at 9.) So, it is not possible for

Defendant Shaw’s statements to have injured Plaintiff, and the Court will dismiss this claim. And

because any amendment would be futile, the Court will dismiss with prejudice and not grant

leave to amend.

C. Plaintiff has failed to serve Defendants Garbiso, Colon, and the EEOC

The procedural requirement of service of summons must be satisfied before a federal

court may exercise personal jurisdiction over a defendant. Fischer v. Fed. Express Corp., 42

F.4th 366, 381 (3d Cir. 2022) (citing Omni Cap. Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97,

104 (1987)). For an individual, those procedural requirements include serving the defendant

personally, leaving a copy of the complaint and summons at his or her dwelling with someone of

suitable age, or delivering a copy to his or her agent. See Fed. R. Civ. P. 4(e). The procedural

requirements for serving a government agency like the EEOC include (1) delivering or sending

by registered or certified mail a copy of the summons and complaint to the U.S. attorney or

certain designated employees for the district where the action was brought, (2) sending copies of

each via registered or certified mail to the Attorney General of the United States at Washington,

D.C., and (3) if the action challenges an order of a nonparty agency or officer of the United

States, sending copies of each by registered or certified mail to the agency or officer. See Fed. R.

Civ. P. 4(i)(1). “If a defendant is not served within 90 days after the complaint is filed, the court

—on motion or on its own after notice to the plaintiff—must dismiss the action . . . .” Fed. R.

Civ. P. 4(m).

Although Plaintiff provided the United States Marshall separate “Process Receipt and

Return” forms for Defendants Garbiso, Colon, and EEOC, and the Court ordered the United

States Marshal to mail a copy of the Complaint, notice of lawsuit, and request for waiver of

service to each, Plaintiff has not properly served them. This memorandum and associated order

will thus serve as notice to Plaintiff that the action will be dismissed if she fails to effect service

within 30 days.

IV. CONCLUSION

The Court does not have personal jurisdiction over Defendants Nesco Resource, LLC and

Gross & Gross, LLC, so it will dismiss the claims against them without prejudice. As it pertains

to Defendant Shaw, the Complaint fails to state a claim upon which relief can be granted, and

any amendment would be futile. So the claims against Defendant Shaw will be dismissed with

prejudice. Finally, Plaintiff has failed to properly serve Defendants Garbiso, Colon, and the

Equal Employment Opportunity Commission. If she fails to do so within 30 days of the date of

entry of the accompanying order, her claims against each will be dismissed for failure to timely

effect service.

An appropriate order follows.