RIBORDY

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

CENTIMARK CORPORATION,

Plaintiff, Civil Action No. 2:25-cv-987

v. Hon. William S. Stickman IV

BRYCEN RIBORDY and CHERRY

COATINGS MANAGEMENT, LLC,

Defendants.

MEMORANDUM OPINION

WILLIAM S. STICKMAN IV, United States District Judge

On July 15, 2025, Plaintiff Centimark Corporation (“Centimark”) filed a complaint against

defendants Robert Ribordy (“Ribordy”) and Cherry Coatings Management, LLC (“Cherry

Coatings”) (collectively, “Defendants”). Centimark’s complaint alleges the following: a breach

of contract claim against Ribordy, individually, for an alleged breach of his Employment

Agreement (“Agreement”) with Centimark (Count I); a violation of the Defend Trade Secrets Act

under 18 U.S.C. § 1836 against Defendants, collectively (Count II); tortious interference with a

contract against Cherry Coatings, individually (Count II); and a violation of the Pennsylvania

Uniform Trade Secrets Act under 12 Pa. C.S. § 5302 against Defendants, collectively (Count IV).

(ECF No. 1). Cherry Coatings has filed a motion to dismiss all claims brought against it pursuant

to Federal Rule of Civil Procedure 12(b)(2) (“Rule 12(b)(2)”) for lack of personal jurisdiction.

(ECF No. 35). For the reasons set forth below, the Court cannot exercise personal jurisdiction

over Cherry Coatings because the minimum constitutional requirements for personal jurisdiction

have not been met. Cherry Coatings’ motion will be granted.

I. FACTUAL BACKGROUND

Centimark markets, sells, installs, and services roofing and flooring solutions to various

commercial and industrial clients across the United States and Canada. Its headquarters are in

Canonsburg, Pennsylvania. (ECF No. 1, § 13). Centimark hired Ribordy as a laborer on or about

June 22, 2009. (/d. at J 15). Ribordy is a resident of the state of Arizona. Ribordy was promoted

by Centimark to a project manager position (“Project Manager”) on or about July 16, 2014, which

provided him “with more responsibility, increased wages and benefits.” (/d.). Centimark required

Ribordy to enter into an agreement (“Agreement’’) as a condition of his promotion to Project

Manager. Ribordy signed the Agreement on July 10, 2014. Ud. at 916). The Agreement contained

provisions prohibiting Ribordy from disclosing Centimark’s confidential information and trade

secrets. (Id. at § 27). Additionally, it set forth Ribordy’s obligation not to compete with Centimark

for a two-year period following the termination of his employment. (/d. at { 29).

In his new position, Ribordy worked for Centimark’s Questmark division—a commercial

flooring division that “offers a wide variety of services to its clients nationwide, including the

installation and service of polished concrete, urethanes, coatings, resurfacers, along with floor

repairs and maintenance.” (/d. at § 18). As Project Manager, Ribordy “played a pivotal part in

overseeing sales activities through generating new business, progressing prospects through the

sales pipeline, and ensuring seamless transitions to the operations team for successful project

installations.” (Ud. at ¢ 19). During his time as Project Manager, Ribordy “became intimately

familiar with all aspects of Centimark’s sales activities and its current and prospective customers”

throughout the United States and Canada, and further created and maintained relationships with

“crucial customers.” (/d. at §§ 20-21). Centimark entrusted Ribordy with confidential information,

customers, and trade secrets to aid him in the performance of his Project Manager role. (/d. § 31).

Ribordy sent Centimark a resignation letter via email on April 10, 2025, stating that he

would be resigning from his role with the company. (/d. at § 34). “[I]mmediately after Ribordy’s

final day at Centimark, he began working as a Vice President at Cherry Coatings.” Cherry

Coatings is a Texas-based limited liability company operating under Texas law with its principal

place of business in Framers Branch, Texas. (ECF No. 1, { 7). Cherry Coatings offers commercial

painting and flooring services to clients across the United States.

Centimark learned that Ribordy was working for Cherry Coatings shortly after he resigned.

(Id. § 44). Centimark asserts that “[i]n the days and weeks leading up to his resignation, Defendant

Ribordy accessed and downloaded Centimark’s confidential information and trade secrets,

including price sheets, business strategy plans, and documents containing Centimark client

information.” (ECF No. 43, p. 2). Centimark states in its complaint that Cherry Coatings is a

direct competitor and “[u]pon information and belief, Ribordy misappropriated Centimark’s trade

secrets so that he could use them for the benefit of himself and Cherry Coatings and to Centimark’s

detriment.” (ECF No. 1, § 58). Centimark specifically alleges in its brief opposing Cherry

Coatings’ motion to dismiss that “[d]uring the time when Ribordy was accessing and downloading

such information, Cherry Coatings was recruiting Ribordy for a role within its company.” (ECF

No. 43, p. 2). Centimark asserts that Cherry Coatings hired Ribordy in a role like the Project

Manager position he held while at Centimark, and that once he began working for Cherry Coatings,

clients Ribordy originally solicited for Centimark began giving business to Cherry Coatings. (d.).

Ribordy and Cherry Coatings’ Regional Vice President for the Arizona and Utah Regions

Clint Badger (“Badger”) had been in communication with each other since early March when

Ribordy first contacted him to discuss the possibility of his employment at Cherry Coatings. (ECF

No. 56-2, p. 12). Ribordy admitted that he had two meetings with Cherry Coatings’ employees

while he was still employed by Centimark. (/d.). The first meeting occurred on March 24, 2025,

in Arizona with Badger while Ribordy was still employed by Centimark. (/d.). The second

meeting was held in Dallas, Texas where Ribordy met with several other employees at Cherry

Coatings. (/d. at 12-43); (ECF No. 73, pp. 2-3). Badger acknowledged that he was made aware

of Ribordy’s employment agreement with Centimark before Ribordy began working for Cherry

Coatings. (ECF No. 70, p. 43). Ribordy similarly stated that he provided a copy of the Agreement

to Cherry Coatings before he received an offer of employment from Cherry Coatings. (/d. at 187—

88).

Centimark, after learning of Ribordy’s alleged conduct, “sent cease and desist letters to

both Ribordy and Cherry Coatings informing them of Ribordy’s ongoing obligations pursuant to

his [Agreement].” (Ud. at 201); (ECF No. 43-3).

The Agreement between Ribordy and Centimark contains a forum selection clause

providing that any legal action arising out of or related to the Agreement will be brought and filed

in Pittsburgh, Pennsylvania, such that Pittsburgh will serve as the exclusive forum. (ECF No. 43-

3, p. 10). Cherry Coatings is not a party or signatory to the Agreement. (ECF No. 36, p. 11).

Cherry Coatings avers that Ribordy worked in a non-sales position in Arizona. Further, it states

that after he was hired, Ribordy did not perform services on Cherry Coatings behalf in

Pennsylvania, did not solicit sales in Pennsylvania, and has not worked on any projects in

Pennsylvania. (/d. at 12); (ECF No. 73, p. 2).

I. STANDARD OF REVIEW

Rule 12(b)(2) requires a court to dismiss a case when a court lacks personal jurisdiction

over a defendant. FED. R. Civ. P. 12(b)(2). A court must analyze jurisdictional contacts on a

claim-by-claim basis. Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 104 (3d Cir. 2004). Once a

defendant contests the sufficiency of personal jurisdiction, the burden shifts to a plaintiff to

establish personal jurisdiction. O’Connor y. Sandy Lane Hotel Co., Ltd., 496 F.3d 312, 316 Gd

Cir. 2007). Ifthere is no evidentiary hearing, a plaintiff must make a prima facie case by furnishing

facts that establish with reasonable particularity that personal jurisdiction exists. Provident Nat’l

Bank v. Cal. Fed. Sav. & Loan Ass’n, 819 F.2d 434, 437 □□ Cir. 1987) (citation omitted). If a

court holds an evidentiary hearing, the standard of proof elevates to a preponderance of the

evidence standard. LaRose v. Sponco Mfg., Inc., 712 F. Supp. 455, 458-59 (D.N.J. 1989) (citing

Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981)). See also Hufnagel vy.

Ciamacco, 281 F.R.D. 238, 244 (W.D. Pa. 2012) (citing cases). Ifa plaintiff meets his burden, the

burden shifts back to the defendant to present a compelling case that personal jurisdiction is

unreasonable. Carteret Sav. Bank, FA v. Shushan, 954 F.2d 141, 150 (3d Cir. 1992) (citing Burger

King Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985)).

A plaintiff's case cannot merely rely on the pleadings but must be supported by sworn

affidavits or other competent evidence. Time Share Vacation Club vy. Atl. Resorts, Ltd., 735 F.2d

61, 66 &n.9 (3d Cir. 1984). All allegations made by a plaintiff are accepted as true and all disputed

facts are construed in the plaintiff's favor. Carteret, 954 F.2d at 142n.1. To that end, any conflicts

between the evidence submitted by a plaintiff and a defendant are construed in a plaintiff's favor.

Inre Enter. Rent-A-Car Wage & Hour Empl.’t Practices Litig., 735 F. Supp. 2d 277, 307 (W.D.

Pa. 2010). Ifa plaintiff initially fails to meet his burden but makes factual allegations suggesting

that the requisite contacts exist, a court can order jurisdictional discovery to ameliorate the

jurisdictional inquiry. Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d 446, 456 (3d Cir. 2003).

Centimark, in its motion for a temporary restraining order and a preliminary injunction,

stated that the “temporary restraining order and/or preliminary injunction is necessary to

immediately stop the irreparable harm suffered by Centimark because of Defendants’ conduct.”

(ECF No. 3 ¥11). It posited that a preliminary injunction hearing would help “to ascertain the full

extent of Defendants’ unlawful activities.” (/d.). On October 30, 2025, the Court held a

preliminary injunction hearing. (ECF Nos. 65 and 70). During the hearing, Ribordy confirmed

that no communications or discussions with Cherry Coatings took place in the Commonwealth of

Pennsylvania. (ECF No. 70, p. 67). There were no additional facts provided during the hearing

that spoke to whether Cherry Coatings is subject to personal jurisdiction in this forum.

UI. ANALYSIS

Cherry Coatings has moved to dismiss Centimark’s claims against it pursuant to Rule

12(b)(2), asserting that this Court lacks personal jurisdiction over it. A federal district court, sitting

in diversity, applies the law of the forum state in which it sits to determine whether jurisdiction is

proper. FED. R. Civ. P. 4(e). The Court will apply Pennsylvania law as it is the forum state.

Pennsylvania’s long-arm statute governs the boundaries of a court’s ability to exercise general and

specific personal jurisdiction over parties to an action brought within the state. 42 Pa. C.S.A. §

5322; Betrotex Certainteed Corp. v. Consol. Fiber Glass Prods. Co., 75 F.3d 147, 150 Gd Cir.

1996). The Court must look to federal jurisprudence to determine whether Cherry Coatings is

subject to personal jurisdiction in Pennsylvania. Id. at 150.

The Due Process Clause of the Fourteenth Amendment of the United States Constitution

grants courts the authority to properly exercise personal jurisdiction if the plaintiff establishes the

existence of either general or specific personal jurisdiction over the defendant in the forum state.

U.S. Const. amend XIV; Burger King Corp. v. Rudzewicz, 471 U.S. 310, 319 (1985); Jnt’l Shoe

Co. v. State of Wash., Off Unemployment Comp. & Placement, 326 U.S. 462, 475 (1945). There

are, however, alternative methods to establish personal jurisdiction over a defendant: if a court

does not otherwise have personal jurisdiction over the defendant, parties can consent to

jurisdiction, or the defendant may waive their right to object to the lack of personal jurisdiction by

entering a general appearance with the court. Nat'l Equip Rental, Ltd. y. Szukhent, 375 U.S. 311,

316 (1964); Lee v. Chesapeake & O. Ry. Co., 260 U.S. 653, 655 (1923). Centimark asserts that,

through its consent, Cherry Coatings subjected itself to personal jurisdiction in Pennsylvania.

(ECF No. 43, p. 5). For the reasons set forth below, the Court disagrees.

A. The Court lacks general personal jurisdiction over Cherry Coatings.

Defendants are subject to general jurisdiction by a court if the defendant corporation’s

“affiliations with the State are so continuous and systematic as to render them essentially at home

in the forum State.” Daimler AG v. Bauman, 571 U.S. 117, 127 (2014). For purposes of finding

that a corporation is subject to general personal jurisdiction, the United States Supreme Court has

held that it is where its “place of incorporation and principal place of business” are located. Jd. at

137 (citing Goodyear Dunlop Tires Ops., S.A. v. Brown, 564 U.S. 915, 924 (2011)). If, however,

the defendant is a foreign corporation—incorporated and holding its principal place of business

outside of the forum state—“the plaintiff must show that the defendant carried on ‘a continuous

and systematic part of its general business within the Commonwealth.’” Provident Nat. Bank v.

California Fed. Sav. & Loan Ass’n, 819 F.2d 434, 437 Cir. 1987) (quoting 42 Pa. CS. §

5301(a)(2)(iii)). The United States Court of Appeals for the Third Circuit has stated that such a

showing requires “significantly more than mere minimum contacts to establish general

jurisdiction. The nonresident’s contacts must be continuous and substantial.” Jd. (citing Dollar

Sav. Bank v. First Sec. Bank Utah, F.2d 208, 212 (3d Cir. 1985); Gehling v. St. George’s School

of Medicine, Ltd., 773 £.2d 539, 541 (3d Cir. 1985)).

Cherry Coatings is not subject to general jurisdiction in Pennsylvania. It is incorporated,

with its principal place of business, in the state of Texas. (ECF No. 1, § 7); (ECF No. 36, p. 5).

Additionally, Centimark cannot establish that Cherry Coatings has established “continuous and

substantial” contacts with Pennsylvania as required to otherwise establish general jurisdiction.

Cherry Coatings “is not registered to transact business in Pennsylvania; maintains no offices in

Pennsylvania; and owns no real property, personal property, or bank and investment accounts in

Pennsylvania.” Provident Nat. Bank, 819 F.2d at 437; (ECF No. 36, p. 5). Moreover, Cherry

Coatings does not, and has never, transacted any business, solicited existing or potential customers,

or worked on projects in Pennsylvania. (/d. at 5—6).

The Court finds that Centimark has failed to establish that Cherry Coatings is subject to

general jurisdiction in Pennsylvania.

B. The Court lacks specific personal jurisdiction over Cherry Coatings.

I. Centimark has not alleged that Cherry Coatings has sufficient minimum

contacts in Pennsylvania for the Court to exercise specific jurisdiction.

Specific personal jurisdiction stems from “the relationship among the defendant, the forum,

and the litigation.” Walden v. Fiore, 571 U.S. 277, 284 (2014) (quoting Keeton v. Hustler

Magazine, Inc., 564 U.S. 770, 775 (1984)). A court will generally apply a two-prong analysis to

evaluate whether specific personal jurisdiction exists over a defendant. Pennzoil Prods. Co. v.

Colelli & Assocs., Inc., 149 F.3d 197, 201 (3d Cir. 1998). First, it is required to ensure the

nonresident defendant had sufficient “minimum contacts with the forum necessary for the

defendant to have ‘reasonably anticipated being haled into court there.” Jd. (quoting World-Wide

Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)). Second, if minimum contacts are

established, a court, in its discretion, “may inquire whether ‘the assertion of personal jurisdiction

would comport with fair play and substantial justice.’” Jd. The second prong allows a court to

ascertain whether the defendant’s “suit-related conduct” creates “a substantial connection with the

forum State,” ensuring its exercise of jurisdiction is consistent with due process. Walden, 571 U.S.

at 284. In evaluating whether to exercise specific jurisdiction over the defendant, a court must

determine whether the nature of the defendant’s conduct in connection with the forum was such

that “he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp.

v. Woodson, 444 U.S. 286, 297 (1980).

Notably, specific jurisdiction over a nonresident defendant is proper if the “alleged injury

arises out of or relates to actions by the defendant himself that are purposefully directed toward

forum residents, and where jurisdiction would not otherwise offend ‘fair play and substantial

justice.’” Burger King Corp., 471 U.S. at 464 (quoting Int'l Shoe, Co., 326 U.S. 320)). Specific

jurisdiction requires a showing that defendant purposefully availed itself “of the privilege of

conducting activities within the forum State, thus invoking the benefits and protection of its laws.”

Hanson v. Denckla, 357 U.S. 235, 253 (1958). Such a showing may be made through citing

defendant’s (1) deliberate actions directed at or within a state; (2) creation of a continuing

obligation “between himself and residents of the forum;” or (3) unequivocal benefit from “the

privilege of conducting business there.” Id.; see also Burger King Corp., 741 U.S. at 475—76.

If, however, defendant’s contacts were merely “‘random’, ‘fortuitous’, or ‘attenuated

contacts,’ or the result of ‘unilateral activity of another party or a third person,’” defendant should

not be haled into court in the forum state. Jd. (quoting Keeton, 465 U.S. at 774; Helicopteros

Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 417 (1984)).

Centimark has failed to make the required showing that Cherry Coatings has availed itself

of the privileges of conducting its business within Pennsylvania. No action taken by Cherry

Coatings was directed at Pennsylvania, it has not created a continuing obligation with any residents

of Pennsylvania, and it has never conducted business in Pennsylvania.

2. Centimark has failed to satisfy the Calder test to assert personal jurisdiction

over Cherry Coatings.

Because Cherry Coatings did not have physical contacts with the forum, but Centimark

alleges that Cherry Coatings tortiously interfered with the Agreement between Centimark and

Ribordy, the Court may employ the Calder “effects test” adopted by the Supreme Court in Calder

y. Jones, 465 U.S. 783 (1984). “Generally speaking, under Calder an intentional tort directed at

the plaintiff and having sufficient impact upon it in the forum may suffice to enhance otherwise

insufficient contacts with the forum such that the ‘minimum contacts’ prong of the Due Process

test is satisfied.” JMO Industries, Inc. v. Kiekert AG, 155 F.3d 254, 260, 263 (3d Cir. 1998)

(finding that “the mere allegation that the plaintiff feels the effects of the defendant’s tortious

conduct in the forum because the plaintiff is located there is insufficient to satisfy” the “expressly

aimed” factor of the Calder test). The Third Circuit explained that a plaintiff will successfully

satisfy the Calder “effects test” if it shows the following:

(1) The defendant committed an intentional tort; (2) The plaintiff felt the brunt of

the harm in the forum such that the forum can be said to be the focal point of the

harm suffered by the plaintiff as a result of that tort; (3) The defendant expressly

aimed his tortious conduct at the forum such that the forum can be said to be the

focal point of the tortious activity.

Id. at 265-66. The elements, taken together, must demonstrate that the defendant knew that the

specific tortious activity it engaged in was “expressly aimed at the forum” and would cause “the

brunt of the harm” in the forum. /d. at 266.

The United States District Court for the Eastern District of Pennsylvania applied the Calder

test to facts like those present here. In Radian Guar. Inc. v. Bolen, 18 F. Supp. 3d 635, 644 (E.D.

Pa. 2014), the court found that plaintiffs did not meet the burden of proof required by Calder. The

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mere assertion that a former employee entered an employment relationship with an alleged

competitor with knowledge of the non-competition agreement containing a forum selection clause

was “insufficient to meet the ‘expressly aimed’ standard.”! Jd.

Centimark has alleged the following pertinent to Cherry Coatings’ contacts with this

forum: Cherry Coatings intentionally acted in hiring Ribordy, knowing that Ribordy had entered

into the Agreement with Centimark containing non-compete and non-solicitation provisions, as

well as a forum selection clause, all of which put Cherry Coatings on notice that it may be sued in

that forum. (ECF No. 70, pp. 43, 187-88); (ECF No. 72, p. 4, n. 7) (citing ECF No. 35). Although

Centimark’s allegations are sufficient to establish the first and third factors of the Calder test—

that Cherry Coatings acted intentionally and knew of the forum selection clause naming

Pennsylvania as the chosen location for dispute resolution—Centimark has not established that

Cherry Coatings “expressly aimed” its tortious conduct at Pennsylvania. (/d.). Additionally, the

Supreme Court’s opinion in Walden narrowed the application of the Calder test, finding that, in

the absence of defendant’s conduct in the forum, if the plaintiff is the only link between the

defendant and the forum, no basis for jurisdiction exists. Guaranteed Rate, Inc. v. Conn, 264 F.

Supp. 3d 909, 918 (N.D. Ill. 2017); Walden, 571 U.S. at 289. As Centimark is the only connection

between Cherry Coatings and Pennsylvania, the Calder test cannot create a basis for exercising

personal jurisdiction over Cherry Coatings.

3. The closely related party doctrine does not apply to Cherry Coatings.

' The facts in Radian are similar to the facts at issue in this case. The plaintiff alleged that its

former employee breached its non-competition agreement and misappropriated trade secrets and

confidential information when it went to work for a competitor. The new employer was named as

a defendant because plaintiff alleged it “knowingly induced [former employee] to join them in

violation of [the] non-competition agreement and with the express intent of benefiting from her

knowledge of [plaintiff’s] trade secrets and confidential information.” Radian Guar. Inc., 18 F.

Supp. 3d at 644.

11

In the absence of requisite contacts, consent is an alternative method for courts to exercise

personal jurisdiction over a party. Centimark cites to Matthews Int'l Corp., No. 2:20-cv-00089,

2020 WL 1275692, at *3 (W.D. Pa. March 17, 2020), which states, “consent may take the form of

a contractual forum selection clause.” (citing Synthes, Inc. v. Emerge Medical, Inc., 887 F.Supp.2d

598, 606 (E.D. Pa. 2012)). “Under traditional principles of contract law, non-signatories may be

bound by a forum selection clause if they are intended third-party beneficiaries of the contract, or

if they are closely related.” In re McGraw-Hill Glob. Educ. Holdings LLC, 909 F.3d 48, 59 Gd

Cir. 2018). Courts weigh several factors to determine whether a non-signatory is closely related

to the contract signatories, such as “the non-signatory’s ownership of the signatory, its involvement

in the negotiations, the relationship between the two parties and whether the non-signatory

received a direct benefit from the agreement.” Jd. at 63 (quoting Carlyle Inv. Mgmt. LLC. v.

Moonmouth Co. SA, 779 F.3d 214, 219 3d Cir. 2015)).

The Agreement between Centimark and Ribordy contained a forum selection clause.

Although Cherry Coatings was not a signatory to the Agreement, Centimark alleges that it can

enforce the forum selection clause against Cherry Coatings because it is “closely related” to

Ribordy. (ECF No. 43, p. 4). Centimark contends that the Court should exercise jurisdiction over

Cherry Coatings as a closely related party based on Ribordy’s consent to personal jurisdiction,

rather than through a minimum contacts analysis as required by the due process clause. (/d. at 3).

In Burger King Corp., the Supreme Court stated that consent to personal jurisdiction

through a forum selection clause is appropriately enforced without offending due process if the

clause has “been obtained through ‘freely negotiated’ agreements and [is] not ‘unreasonable and

unjust.’” 471 U.S. at 473 n. 14 (quoting Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15 (1972)).

However, when parties to a contract freely negotiate forum selection clauses, those parties are

12

explicitly consenting to personal jurisdiction in an agreed upon forum. Conversely, in a case such

as this, Centimark asks the Court to find that Cherry Coatings impliedly consented to personal

jurisdiction—i.e., Cherry Coatings was not a party to the Agreement and did not play a part in

negotiating the Agreement, thus it did not expressly consent. Courts are divided on the

circumstances in which consent will be imputed through the closely related party doctrine.

The Eastern District of Pennsylvania found that a non-signatory defendant was “so closely

related to the dispute between” the parties to the original contract “that he should have reasonably

foreseen that he would be bound by the forum selection clause.” Synthes, 887 F. Supp. 2d at 611.

It hinged exercising specific jurisdiction on the foreseeability factor because—where the non-

signatory defendant knew of the non-competition agreement between plaintiff and its former

employees, knew that his employment of plaintiff's former employee could be in breach of that

agreement, and was “well aware of this potential litigation,” he should have “anticipated that the

forum selection clause in [employees’] Non-Competition Agreements would be enforced against

him in a suit claiming a violation of those agreements.” /d. at 612. Further, it found that through

the “closely related” standard, the signatory’s consent to personal jurisdiction, via a forum

selection clause, vacates the requirement to apply the minimum contacts analysis for the non-

signatory defendant. Jd. at 616, n. 4. However, the district court treated the non-signatory

defendant as if, due to being closely related with a signatory to the contract, it explicitly consented

to personal jurisdiction. Jd. at 607.

Contrary to the holding in Synthes, several courts have found that “regardless of how

foreseeable it may be that the defendant might be sued in a particular forum,” it still holds true that

“due process is not satisfied where the plaintiff is the only link between the defendant and that

forum.” Guaranteed Rate, Inc, 264 F. Supp. 3d at 918; (citing Walden, 571 U.S. at 286). The

13

Supreme Court has held that foreseeability is not enough to establish minimum contacts so “it

should not be a sufficient basis for finding a wavier or implied consent either.” Guaranteed Rate,

264 F. Supp. 3d at 926; Walden, 571 U.S. at 289.

Centimark cites to Matthews Int’] Corp. v. Lombardi, No. 2:20-cv-00089, 2020 WL

1309399 (W.D. Pa. March 19, 2020) to support its position that a non-signatory to an agreement

containing a forum selection clause may be bound by that clause because it is closely related to

the signatory of the agreement. The district court in Matthews Int’l Corp. found that it was

appropriate to exercise specific jurisdiction over non-signatory defendants because the former

employee was “bound by a restrictive covenant with a forum-selection clause” and that clause

“may apply to non-parties who can foresee the forum-selection clause being an issue, but still

move forward with hiring.” Jd. at *5 (non-signatory defendant hired former employees after

receiving notice of agreements containing restrictive covenants as well as the forum-selection

clauses between plaintiff and its former employees. The parties were closely related to each other,

such that it was foreseeable that the non-signatory would be bound by the forum selection clause,

too.). It relied on In re McGraw-Hill, a Third Circuit case which held that under “traditional

principles of contract law,” if a non-signatory is closely related to a party to the contract, it may

be bound by the forum selection clause. In re McGraw-Hill Glob. Educ., 909 F.3d at 59. But In

re McGraw-Hill is a venue case, and as several district courts have found, it is unrelated to the

issue of personal jurisdiction. See Am. Neighborhood Mortg. Acceptance Co., LLC v. Lund, No.

1:19-cv-03666, 2021 WL 1248522, at *5 (D.N.J. April 5, 2021); Guaranteed Rate, 264 F. Supp.

3d at 925.

The United States District Court for the Northern District of Illinois faced similar facts as

those here when deciding whether it was appropriate to exercise personal jurisdiction. In

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Guaranteed Rate, a former employer brought an action against its former employees and their new

employer (a competitor), alleging that the former employees breached the employment agreement

containing a non-solicitation clause. /d. The former employer claimed that the competitor was

closely related to its former employees, who were signatories to the agreement, so the Court could

exercise specific jurisdiction over it. /d. Plaintiffs in Guaranteed Rate cited a case similar to In

re McGraw to support their claim that the non-signatory defendant is subject to personal

jurisdiction. They argued that the Seventh Circuit, in Adams v. Raintree Vacation Exchange, LLC,

702 F.3d 436 (7th Cir. 2012) held that a nonparty is bound by a forum selection clause in an

agreement if it is closely related to one of the signatories to the contract or to the lawsuit. /d. The

district court however emphasized that Adams is a venue case, whereas “the issue here of whether

a defendant may be found to have waived an objection to personal jurisdiction based on a forum

selection clause in a contract to which it is not a party is beyond the scope of what was

contemplated by the Seventh Circuit in that case.” Jd. at 924. “While objections to both personal

jurisdiction and venue may be waived, venue is ‘primarily a matter of choosing a convenient

forum’ and ‘implicates no constitutional principle,’ while ‘due process considerations are present

in all personal jurisdiction inquiries.’” Jd. (quoting Abelesz v. OTP Bank, 692 F.3d 638, 660 (7th

Cir. 2012)).

The district court in Guaranteed Rate further expressed that it had “serious concerns over

whether it would be ‘reasonable and just’ to apply a ‘close relationship’ test that relies on

‘foreseeability’ to find implied consent to personal jurisdiction.” Jd. (citing Burger King Corp.,

471 U.S. at 473 n. 14). Further, it stated that “it does not make sense to tie the concept of implied

consent to foreseeability” because consenting to personal jurisdiction acts as a waiver of

“objections to a court’s assertion of personal jurisdiction. And a waiver is defined as ‘a conscious

15

relinquishment of a known right.’” Jd. (citing Anderson v. Catholic Bishop of Chi., 759 F.3d 645,

651 (7th Cir. 2014)).” It went on to note:

[while it may be foreseeable to a nonsignatory who knowingly allows itself to

become embroiled in a dispute related to a contract with a forum selection clause

that it is at risk of being sued in the contractually selected forum, the foreseeability

of that risk does not mean the nonsignatory intended to relinquish its constitutional

right to be free from suit except in a forum with which it has minimum contacts. A

court that holds that such a nonsignatory is bound by the forum selection clause is

really applying a concept more akin to forfeiture or estoppel than waiver or implied

consent.

Id. Relying on the Supreme Court’s opinion in Walden, the district court stressed that “regardless

of how foreseeable it may be that the defendant might be sued in a particular forum, due process

is not satisfied where the plaintiff is the only link between the defendant and that forum.” Id. at

918 (citing Walden, 134 U.S. 277).

The United States District Court for the District of New Jersey applied the analysis and

rationale outlined in Guaranteed Rate as to whether exercising personal jurisdiction over a non-

signatory defendant is constitutional. Am. Neighborhood Mortgage Acceptance Co., LLC, 2021

WL 1248522, at *6. Further, it rejected the Matthews decision which Centimark relies on here

because it “fails to acknowledge, let alone discuss, the impact of Walden on the Calder test, fails

to provide a detailed analysis of IMO, and fails to recognize the due process implications of it[s]

decision to assert personal jurisdiction because the ‘closely related’ test was satisfied by relying

on Jn re McGraw-Hill, a venue case.” Id. (citing Guaranteed Rate, 264 F. Supp. 3d at 917, 919,

925-26). The Court agrees with the district court in Am. Neighborhood Mortgage Acceptance Co.,

? Whether it “be express or implied...the evidence must show a clear, unequivocal and decisive

act of a party demonstrating intent to” effectively waive its known right. Guaranteed Rate, Inc.,

264 F. Supp. 3d at 926 (quoting Anderson, 759 F.3d at 651).

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which held that “the Third Circuit would adopt the reasoning in Guaranteed Rate” and further

reject the reasoning in Matthews. Id.

Centimark’s assertion that the Court can exercise personal jurisdiction over Cherry

Coatings under the closely related party doctrine, based on Ribordy’s consent to a forum selection

clause, fails. As stated in Truinject Corp. v. Nestle Skin Health S.A., No. 19-592, 2019 WL

6828984, at *11 (D. Del. Dec. 13, 2019), where a defendant is not a party to an agreement, “a court

should not exercise jurisdiction unless the record otherwise demonstrates ‘minimum contacts’

between the defendant and the forum.” Centimark has failed to established that Cherry Coatings

engaged in constitutionally sufficient minimum contacts in Pennsylvania. It has not sufficiently

alleged personal jurisdiction through the Calder test. The closely related party doctrine is

inapplicable here as the relationship between Ribordy and Cherry Coatings is merely an

employment relationship, and Cherry Coatings was not a party to Ribordy’s employment

agreement with Centimark. Centimark fails to establish the required relationship between Cherry

Coatings, the forum, and the litigation; instead, Centimark remains the only link to Pennsylvania.

IV. CONCLUSION

For the foregoing reasons, Cherry Coatings’ motion to dismiss for lack of personal

jurisdiction will be granted by Order of Court to follow.

BY THE/COURT:

WILLIAM S. STICKMAN IV

UNITED STATES DISTRICT JUDGE

Dated tal 2e2¢

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