Petition for Writ of Certiorari — Kyko Global Inc., et al., Petitioners v. Omkar Bhongir

Supreme Court briefSep 10, 2020

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App. 1

2020 WL 1545858

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United States Court of Appeals, Third Circuit.

KYKO GLOBAL, INC., a Canadian Corporation;

KYKO GLOBAL GMBH, a Bahamian Corporation,

Appellants

OMKAR BHONGIR, an Individual

No. 19-1807

Submitted Under Third Circuit

LAR 34.1(a) March 23, 2020

(Filed: April 1, 2020)

On Appeal from the United States District Court for

the Western District of Pennsylvania, (D.C. No. 2-17cv-00212), District Judge: Honorable Yvette Kane.

Attorneys and Law Firms

Jayson M. Macyda, Esq., Kyko Global Inc., Canton, MI,

Joseph F. Rodkey, Jr., Esq., Fowkes Rodkey, Oakmont,

PA, for Plaintiffs-Appellants

Laura A. Lange, Esq., Sewickley, PA for DefendantAppellee

App. 2

Before: JORDAN, RESTREPO, and GREENBERG,

Circuit Judges.

OPINION*

JORDAN, Circuit Judge.

In this diversity action, Kyko Global Inc., a Canadian corporation, and Kyko Global GmbH, a Bahamian

corporation (collectively, “Kyko”), brought fraud and

negligence claims against Omkar Bhongir, a California

resident who was once a member of the board of directors of an Indian company that used Kyko’s services.

After jurisdictional discovery, the District Court

granted Bhongir’s motion to dismiss for lack of personal jurisdiction, denied Kyko’s motion to compel the

production of documents, and ordered Kyko to pay the

attorneys’ fees that Bhongir incurred in defending

against the motion to compel. Kyko has appealed all

three orders. We will affirm.

BACKGROUND

Kyko, a company providing accounts receivable

factoring services, alleges that Prithvi Information Solutions Ltd., an Indian corporation, fabricated information about customers and accounts receivables that

fraudulently induced Kyko to enter into a loan factoring agreement with it. Kyko sued Bhongir, who was on

the board of Prithvi from 2005-2009, claiming that he

* This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent.

App. 3

either assisted in the creation of that false information

or knew of its existence.1

Bhongir moved to dismiss, alleging lack of personal jurisdiction, improper venue, expiration of the

statute of limitations, and failure to state a claim.

Bhongir also moved to stay the matter until the District Court determined whether it could exercise personal jurisdiction over him. Kyko opposed the stay and

sought jurisdictional discovery. The Court denied

Bhongir’s motion to dismiss, without prejudice, and

granted Kyko’s motion for jurisdictional discovery.

In the course of that discovery, Kyko requested,

inter alia, “all documents that pertain to [Bhongir’s]

employment and/or service as a director” on Prithvi’s

board and copies of all the notices, agendas, and

minutes of the board meetings, including recordings.

(App at 231.) Bhongir produced some, but not all, of the

requested documents, asserting that the requests were

overly broad. In response, Kyko sought to compel the

production of those documents and extend the time period for jurisdictional discovery. The District Court denied Kyko’s motion to compel and ordered Bhongir to

produce an itemized statement of attorneys’ fees incurred in opposing the motion. Bhongir produced that

Kyko has successfully sued other individuals and Prithvi

itself for fraud in the United States District Court for the Western

District of Washington. Kyko Glob. Inc. v. Prithvi Info. Sols., Ltd.,

No. 2:13-cv-1034, 2016 WL 3226347, at *18 (W.D. Wash. June 13,

2016), modified by Kyko Glob., Inc. v. Prithvi Info. Sols., Ltd., No.

2:13-cv-1034, 2018 WL 4804587 (W.D. Wash. Apr. 23, 2018).

App. 4

statement, and Kyko filed a brief in opposition to the

grant of attorneys’ fees.

Jurisdictional discovery revealed that Bhongir

had visited Pennsylvania twice in his life, both times

on family trips. During one of those family trips, he

also stopped by Prithvi’s Pittsburgh office to celebrate

a colleague’s birthday. As a member of Prithvi’s board,

Bhongir was physically present for only one board

meeting, which was held in India. Otherwise, he participated in board meetings via telephone from California. Bhongir did know, however, that Prithvi’s U.S.

operations were based in Pittsburgh.

Given those facts, Bhongir renewed his motion to

dismiss for lack of personal jurisdiction at the close of

jurisdictional discovery. The District Court granted

Bhongir’s renewed motion, denied Kyko’s motion to

compel, and awarded attorneys’ fees to Bhongir in the

amount of $3,660.

DISCUSSION2

II.

Kyko claims that the District Court erred in dismissing its case under Federal Rule of Civil Procedure

12(b)(2) for lack of personal jurisdiction. According to

The District Court had jurisdiction under 28 U.S.C. § 1332.

We have jurisdiction under 28 U.S.C. § 1291. See also Pineda v.

Ford Motor Co., 520 F.3d 237, 243 (3d Cir. 2008) (“Under the ‘merger rule,’ prior interlocutory orders . . . merge with the final judgment in a case, and the interlocutory orders (to the extent that

they affect the final judgment) may be reviewed on appeal from

the final order.” (internal quotation marks omitted)).

App. 5

Kyko, Bhongir directed his activities at Pennsylvania,

home of Prithvi’s U.S. operations, while on the board of

Prithvi. Kyko also argues that the District Court

abused its discretion when it denied the motion to compel production of documents and when it awarded

Bhongir attorneys’ fees incurred in defending against

that motion. We address each argument in turn.

A. Personal Jurisdiction3

Personal jurisdiction comes in two varieties: general and specific. O’Connor v. Sandy Lane Hotel Co.,

496 F.3d 312, 317 (3d Cir. 2007). General personal jurisdiction requires that the defendant in question has

had “continuous and systematic” contacts with the forum state. Id. Specific personal jurisdiction depends

upon satisfying a three-part inquiry. Id. First, the defendant must have “purposefully directed [its] activities” at the forum state. Id. (quoting Burger King Corp.

v. Rudzewicz, 471 U.S. 462, 472 (1985)). Second, the litigation must “arise out of or relate to at least one of

those activities.” Id. (quoting Helicopteros Nacionales

de Colom., S.A. v. Hall, 466 U.S. 408, 416 (1984)) (internal quotation marks omitted). Third and last, if the

first two steps of the inquiry have been met, the court

must consider whether the exercise of personal jurisdiction “comport[s] with fair play and substantial

justice.” Id. (quoting Burger King, 471 U.S. at 476)

We review a district court’s dismissal for lack of personal

jurisdiction de novo. Danziger & De Llano, LLP v. Morgan Verkamp LLC, 948 F.3d 124, 129 (3d Cir. 2020).

App. 6

(alteration in original) (internal quotation marks omitted). No one contends that there could be general jurisdiction over Bhongir in Pennsylvania, so we consider

only whether the District Court could properly exercise

specific personal jurisdiction over him.

Kyko argues that Bhongir submitted to personal

jurisdiction in the District Court by his earlier actions.

In particular, Kyko says that Bhongir agreed to jurisdiction because he sought “affirmative relief ” from the

Court by filing motions to stay discovery and strike

declarations related to jurisdictional discovery. (Opening Br. at 18-19.) But submission to personal jurisdiction based on seeking affirmative relief is implicated

only when a court “considers the merits or quasi-merits of a controversy.” Bel-Ray Co. v. Chemrite (Pty) Ltd.,

181 F.3d 435, 443 (3d Cir. 1999) (quoting Wyrough &

Loser, Inc. v. Pelmore Labs., Inc., 376 F.2d 543, 547 (3d

Cir. 1967)). Bhongir’s motions did not require the District Court to consider the merits of the controversy. On

the contrary, his efforts were all directed at opposing

jurisdiction and avoiding the merits.

Next, Kyko argues that the District Court misapplied the jurisdictional analysis required for fraud and

negligence claims and that it failed to consider the

jurisdictional evidence offered to demonstrate that

Bhongir directed his conduct at Pennsylvania. Because

fraud is an intentional tort, we examine the exercise of

jurisdiction, as the District Court did, using the “effects” test provided in Calder v. Jones. 465 U.S. 783

(1984). Under that test, personal jurisdiction is satisfied if the defendant committed (1) an intentional tort,

App. 7

(2) the forum bore “the brunt of the harm” and was “the

focal point . . . of the harm suffered,” and (3) the tortious conduct was “expressly aimed” at the forum state.

Id. at 789.

The District Court concluded that Kyko met the

first two elements of the effects test but failed to satisfy

the third element. We agree, certainly as to the last

point. Kyko’s jurisdictional evidence is limited to several calls and emails exchanged between Bhongir and

another Prithvi board member who was based in Pittsburgh. The mere fact that Bhongir communicated with

a board member in Pittsburgh is not, standing alone,

sufficient to show that he specifically aimed any allegedly fraudulent conduct at Pennsylvania. Walden v.

Fiore, 571 U.S. 277, 286 (2014) (“[A] defendant’s contacts with the forum State may be intertwined with his

transactions or interactions with the plaintiff or other

parties. But a defendant’s relationship with a plaintiff

or third party, standing alone, is an insufficient basis

for jurisdiction.” (citations omitted)); see also IMO

Indus., Inc. v. Kiekert AG, 155 F.3d 254, 266 (3d Cir.

1998) (“[T]he Calder ‘effects test’ can only be satisfied

if the plaintiff can point to contacts which demonstrate

that the defendant expressly aimed its tortious conduct

at the forum, and thereby made the forum the focal

point of the tortious activity.”).

Regarding its negligence claim, Kyko similarly

failed to demonstrate that Bhongir purposefully directed his conduct at Pennsylvania. Bhongir’s communications with a Prithvi board member located in

Pennsylvania cannot alone serve as the basis to

App. 8

establish Bhongir’s connection to the forum state. Nor

can his visits to Pennsylvania for personal reasons. In

order for the District Court to assert personal jurisdiction over Bhongir, Kyko’s claims must “arise out of or

relate to” Bhongir’s conduct associated with the forum

state. Danziger & De Llano, LLP v. Morgan Verkamp

LLC, 948 F.3d 124, 130 (3d Cir. 2020) (internal quotation marks omitted). There has been, however, no

nexus shown between Kyko’s claims of negligence and

Bhongir’s visits to Pennsylvania for family trips.

The facts simply do not demonstrate that Bhongir

had sufficient contacts with Pennsylvania to warrant

the assertion of personal jurisdiction over him in this

case. We will, accordingly, affirm the District Court’s

decision that it did not have personal jurisdiction.

B. Discovery Motions4

Kyko says that the District Court abused its discretion when it denied the motion to compel document

production and when it granted attorneys’ fees to

Bhongir in defending against that motion. Both assertions are meritless.

It is well within the District Court’s discretion to

set the scope of discovery. “We will not interfere with

the discretion of the district court by overturning a discovery order absent a demonstration that the court’s

"We . . . review a district court’s discovery orders for abuse

of discretion, and will not disturb such orders without a showing

of actual and substantial prejudice.” Cyberworld Enter. Techns.,

Inc. v. Napolitano, 602 F.3d 189, 200 (3d Cir. 2010).

App. 9

action made it impossible to obtain crucial evidence. . . .” Lehman Bros. Holdings, Inc. v. Gateway

Funding Diversified Mortg. Servs., L.P., 785 F.3d 96,

102 (3d Cir. 2015) (internal quotation marks omitted).

The District Court granted Kyko leave to conduct

discovery for the limited purpose of determining personal jurisdiction. Kyko’s disputed requests for document production, however, exceeded that limited scope

by seeking all documents relevant to Bhongir’s membership on the Prithvi board and all information pertaining to board meetings. On that basis alone, denial

of a motion to compel would have been reasonable.

Equally significant, Kyko does not argue that the denial of the motion to compel made it impossible to obtain crucial information to make its case for

jurisdiction. Indeed, Kyko argues that, even as the record stands, it has already asserted a prima facie case

for personal jurisdiction. Therefore, the denial of the

motion to compel was not an abuse of discretion.

Similarly, the District Court’s grant of attorneys’

fees incurred in defending against Kyko’s overly-broad

document requests was not an abuse of discretion.

Kyko’s chief arguments are that the District Court cannot sua sponte order attorneys’ fees and that the District Court denied Kyko any appropriate notice and

opportunity to be heard. But the text of Federal Rule

of Civil Procedure 37(a)(5)(B) directs that when a motion to compel is denied, the court “must, after giving

an opportunity to be heard, require the movant . . . to

pay the party . . . who opposed the motion its reasonable expenses incurred in opposing the motion,

App. 10

including attorney’s fees.” The order in question did in

fact permit Kyko to oppose the motion for attorneys’

fees and thus be heard. The District Court did not decide the attorneys’ fees issue until after briefing had

been provided by both sides. Clearly, Kyko had the requisite notice and opportunity to be heard on the issue.

The District Court thus operated within the boundaries set by the Federal Rules of Civil Procedure and did

not abuse its discretion.

III. CONCLUSION

For the foregoing reasons, we will affirm the District Court’s dismissal of this case for lack of personal

jurisdiction, denial of the motion to compel, and award

of attorneys’ fees.

App. 11

2019 WL 1493400

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United States District Court, W.D. Pennsylvania.

KYKO GLOBAL, INC., et al., Plaintiffs

Omkar BHONGIR, Defendant

No. 2:17-cv-00212

Signed 04/04/2019

Attorneys and Law Firms

Joseph F. Rodkey, Jr., Matthew Junker, Fowkes Rodkey,

Oakmont, PA, Jayson M. Macyda, Pro Hac Vice, Kyko

Global, Inc., Canton, MI, for Plaintiffs.

Laura A. Lange, McGuireWoods LLP, Pittsburgh, PA,

Marta A. Stein, for Defendant.

MEMORANDUM

Yvette Kane, District Judge Sitting by designation.

Before the Court is Defendant Omkar Bhongir

(“Defendant”)’s renewed motion to dismiss (Doc. No.

74), Plaintiffs Kyko Global, Inc. and Kyko Global

GmbH’s complaint (Doc. No. 1),1 pursuant to Federal

Rules of Civil Procedure 12(b)(2), 12(b)(3), and 12(b)(6);

Defendant’s motion to strike (Doc. No. 91); Defendant’s

motion for attorney’s fees (Doc. No. 61); and Plaintiffs’

When referring to Plaintiffs Kyko Global, Inc. and Kyko

Global GmbH together, the Court refers to them as “Plaintiffs.”

App. 12

motion to strike Defendant’s renewed motion to dismiss as to an unconstitutionality argument raised

therein (Doc. No. 94). For the reasons stated herein, the

Court will grant Defendant’s motion to dismiss and

motion for attorney’s fees and deny Defendant’s motion

to strike and Plaintiffs’ motion to strike as moot.

BACKGROUND

Plaintiffs initiated the above-captioned action by

filing a complaint against Defendant in this Court on

February 14, 2017, asserting claims for fraud (Count I)

and negligence (Count II), in connection with Defendant’s alleged role in a fraudulent scheme perpetrated

by Prithvi Information Solutions Ltd. (“Prithvi”), of

whose board of directors Defendant was previously a

member. (Doc. No. 1.) In sum, Plaintiffs allege that Defendant was involved in the creation of phony accounts

receivable in connection with a factoring agreement

while he was serving as a director of Prithvi, and that

the fraud carried out by Prithvi resulted in significant

monetary loss to Plaintiffs.2 Defendant filed a motion

to dismiss the complaint on April 17, 2017 pursuant to

Federal Rules of Civil Procedure 12(b)(2), 12(b)(3), and

12(b)(6) (Doc. No. 12),3 which this Court denied without

This Court previously recounted the factual background of

this action in its Memorandum discussing Defendant’s first motion to dismiss. (Doc. No. 55.) Accordingly, the Court declines to

repeat said factual discussion herein, and, rather, incorporates

the factual background discussed in its prior Memorandum

herein.

While this motion was pending, the case was reassigned to

the undersigned on September 26, 2017. (Doc. No. 46.)

App. 13

prejudice in a Memorandum and Order dated April 11,

2018 (Doc. Nos. 55, 55-1). The Court considered Defendant’s motion only as to his request for relief

based on personal jurisdiction under Rule 12(b)(2), and

after concluding that it was unable to ascertain

whether it possesses personal jurisdiction over Defendant, granted Plaintiffs’ request for jurisdictional

discovery and ordered limited jurisdictional discovery

as to the nature of Defendant’s contacts with Pittsburgh, Pennsylvania, which is located in the Western

District of Pennsylvania (Doc. No. 55 at 12). Specifically, the Court denied Defendant’s motion to dismiss

without prejudice and permitted Plaintiffs “to conduct

jurisdictional discovery, limited to the issue of whether

personal jurisdiction exists over Defendant in this

[C]ourt[,]” to begin on April 11, 2018 and conclude on

July 31, 2018. (Doc. No. 55-1.)

Following the entry of the aforementioned order

permitting jurisdictional discovery as to Defendant,

Plaintiffs filed a motion to compel production of documents and Defendant’s attendance at a deposition under Federal Rule of Civil Procedure 37(a) and to extend

the jurisdictional discovery period pursuant to Federal

Rule of Civil Procedure 16(b)(4) on June 12, 2018. (Doc.

No. 56.) On July 20, 2018, the Court denied Plaintiffs’

motion to compel on the basis that Plaintiffs’ requests

were overly broad, and, in accordance with Rule

37(a)(5)(B), directed Defendant to “submit . . . an itemized statement, including attorney’s fees, of the expenses incurred in opposing Plaintiffs’ motion to

compel.” (Doc. No. 60 at 1.) Additionally, the Court

App. 14

permitted an extension of the jurisdictional discovery

period until August 30, 2018 (id. at 2), ordering that no

further extensions of the jurisdictional discovery period would be granted and permitting Defendant to

“file a renewed motion to dismiss Plaintiffs’ complaint

within twenty-one (21) days of the conclusion of the jurisdictional discovery period.” (Id.) In accordance with

the Court’s previous order, Defendant filed a motion for

attorney’s fees on July 25, 2018 (Doc. No. 61), which is

currently pending before the Court.

On August 29, 2018 – one day prior to the date on

which the jurisdictional discovery period was to expire

– Plaintiffs filed a motion to compel a non-party,

Sybase Inc. (“Sybase”), to produce documents and attend a deposition pursuant to Federal Rule of Civil

Procedure 45. (Doc. No. 67.) In their motion, Plaintiffs

stated, inter alia, that: “Defendant had been employed

at Sybase for approximately [twenty-five] years”; “Defendant served on [Prithvi’s] Board of Directors between 2005-2009”; “Plaintiffs believe that Defendant

may have provided consulting services to [Prithvi] after 2009”; and “Sybase was a client of [Prithvi] while

Defendant served on [Prithvi’s] Board of Directors.”

(Id. at 1-2.) Plaintiffs further stated that they have alleged “that Defendant was involved in the creation of

bogus accounts receivable that [Prithvi] used to induce

Plaintiffs to enter into a loan factoring agreement

with [Prithvi].” (Id. at 2.) According to Plaintiffs, “Defendant may have used, among other things, Sybase

email addresses and its telephone system to undertake activities on behalf of [Prithvi] by directing his

App. 15

communications from the San Francisco, California

metropolitan area to Pittsburgh, Pennsylvania where

[Prithvi’s] U.S. operations are headquartered” (id. ¶ 9),

and, therefore, Plaintiffs “sent Sybase a subpoena to

produce documents and have a corporate designee appear to give deposition testimony” (id. ¶ 12). Plaintiffs

filed the motion to compel after Sybase “objected to the

[s]ubpoena and did not produce any documents” and a

corporate designee did not appear for purposes of said

deposition. (Id. ¶ 13.) While that motion was pending,

Defendant filed the instant renewed motion to dismiss

Plaintiffs’ complaint on September 20, 2018 (Doc. No.

74), along with a brief in support thereof (Doc. No. 75).

On October 2, 2018, the Court issued an Order

granting in part and denying in part Plaintiffs’ motion

to compel production and attendance at a deposition

by Sybase. (Doc. No. 78.) Specifically, the Court denied

Plaintiffs’ request to depose Sybase’s corporate designee in Oakmont, Pennsylvania as improper under

Rule 45 and granted Plaintiffs’ request to depose the

designee via remote means, while denying certain requests by Plaintiffs for production of documents “as

overly broad for purposes of the limited jurisdictional

discovery previously authorized by the Court.” (Id. at

1.) As it relates to Plaintiffs’ remaining requests for

production, the Court granted those requests “only insofar as the requests are limited to the years 20052009 and specifically pertain to Defendant’s activities

as a board member of Prithvi Information Solutions

Ltd.” (Id.) Further, the Court denied Plaintiffs’ request

for an Order directing Sybase “to produce documents

App. 16

in accordance with the search terms contained in Exhibit G” accompanying their motion to compel. (Id.)

Lastly, the Order stated that due to the Court’s disposition of the motion to compel therein, “any brief in opposition to Defendant’s renewed motion to dismiss

(Doc. No. 74), shall be filed within fourteen (14) days of

Plaintiffs’ receipt of the aforementioned discovery material from Sybase in accordance with this Order.” (Id.

at 2.)

On March 13, 2019, Plaintiffs filed their brief in

opposition to Defendant’s renewed motion to dismiss

(Doc. No. 87), to which Defendant filed a brief in reply

on March 27, 2019 (Doc. No. 93).4 Having been fully

briefed, therefore, Defendant’s motion to dismiss is

ripe for disposition.

II.

LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure

12(b)(2), a defendant may move to dismiss a complaint

On March 27, 2019, Defendant also filed a motion to strike

certain declarations (Doc. No. 91), submitted by Plaintiffs in connection with their brief in opposition to Defendant’s renewed motion to dismiss (Doc. 87), along with a brief in support of the

motion to strike (Doc. No. 92). Although the motion to strike is, as

of this date, not fully briefed, because the disposition of the motion to strike is unnecessary to the Court’s resolution of the motion to dismiss, as explained more fully infra, the Court will deny

the motion to strike as moot. Similarly, while Plaintiffs’ motion to

strike a portion of Defendant’s motion to dismiss (Doc. No. 94),

which was filed on April 3, 2019, is not fully briefed, because the

Court will grant Plaintiff ’s motion to dismiss for lack of jurisdiction, Plaintiffs’ motion to strike will be denied as moot.

App. 17

for lack of personal jurisdiction. See Fed. R. Civ. Pro.

12(b)(2). Once “the defendant raises the question of

personal jurisdiction, the plaintiff bears the burden to

prove, by a preponderance of the evidence, facts sufficient to establish personal jurisdiction.” Carteret Sav.

Bank, FA v. Shushan, 954 F.2d 141, 146 (3d Cir. 1992).

At the pleading stage, a plaintiff is required only to establish a prima facie case of personal jurisdiction over

the defendant, and the court must accept the plaintiff ’s

allegations as true and construe disputed facts in the

plaintiff ’s favor. See Metcalfe v. Renaissance Marine,

Inc., 566 F.3d 324, 330 (3d Cir. 2009); Carteret Sav.

Bank, 954 F.2d at 146. Further, a court may consider

the parties’ affidavits and other evidence when making

determinations regarding personal jurisdiction. See

Metcalfe, 566 F.3d at 330; Connell v. CIMC Intermodal

Equip., No. 1:16-cv-714, 2016 WL 7034407, at *1 (M.D.

Pa. Dec. 2, 2016).

“The two types of jurisdiction are general jurisdiction and specific jurisdiction.” O’Connor v. Sandy Lane

Hotel Co., Ltd., 496 F.3d 312, 317 (3d Cir. 2007) (citing

Helicopteros Nacionales de Colombia, S.A. v. Hall, 466

U.S. 408, 414-15 & n.9, 104 S.Ct. 1868, 80 L.Ed.2d 404

(1984)). “If the plaintiff ’s claim does not arise out of the

defendant’s contacts with the forum, the [C]ourt is said

to exercise ‘general jurisdiction.’ ” IMO Indus., Inc. v.

Kiekert AG, 155 F.3d 254, 259 n.2 (3d Cir. 1998) (quoting Helicopteros, 466 U.S. at 414 & n.9, 104 S.Ct. 1868).

“To establish general jurisdiction over a defendant, the

contacts must be shown to be ‘continuous and systematic.’ ” Id. (quoting Helicopteros, 466 U.S. at 416, 104

App. 18

S.Ct. 1868). In contrast, a court exercises specific jurisdiction over a defendant “[w]here . . . the plaintiff ’s

cause of action is related to or arises out of the defendant’s contacts with the forum.” See id. at 259 (citing

Helicopteros, 466 U.S. at 408, 414 n.8, 104 S.Ct. 1868).

A court’s determination as to whether the exercise of

specific jurisdiction is proper entails a three-part inquiry: (1) “the defendant must have ‘purposefully directed [its] activities’ at the forum”; (2) “the litigation

must ‘arise out of or relate to’ at least one of those activities”; and (3) “if the prior two requirements are

met, a court may consider whether the exercise of jurisdiction otherwise ‘comport[s] with ‘fair play and

substantial justice.’ ” See O’Connor, 496 F.3d at 317 (alterations in original) (citing Burger King Corp. v.

Rudzewicz, 471 U.S. 472, 476 (1985); Helicopteros, 466

U.S. at 414, 104 S.Ct. 1868; Grimes v. Vitalink

Commc’ns Corp., 17 F.3d 1553, 1559 (3d Cir. 1994)).

When a plaintiff asserts multiple claims of different

types, a court’s personal jurisdiction analysis may be

claim-specific. See Remick v. Manfredy, 238 F.3d 248,

255-56 (3d Cir. 2001) (remarking that while conducting

a claim-specific analysis may not be required in every

case, such an analysis may be appropriate, for example, due to “different considerations in analyzing jurisdiction over contract claims and over certain tort

claims”).

Where a plaintiff asserts an intentional tort claim

and a Defendant raises the issue of personal jurisdiction, courts within this circuit apply the Calder “effects

App. 19

test,” which requires the plaintiff to establish 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; [and]

(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 258 (quoting IMO Indus., 155 F.3d at 265-66).

This test requires “that the tortious actions of the defendant have a forum-directed purpose.” See Miller

Yacht Sales, Inc. v. Smith, 384 F.3d 93, 99 (3d Cir. 2004).

When analyzing the existence of personal jurisdiction

over a defendant for purposes of a negligence claim,

however, courts employ “the traditional specific jurisdiction analysis [that] simply requires that the plaintiff ’s claims ‘arise out of or relate to’ the defendant’s

forum contacts.” See id. at 99 (citing Burger King, 471

U.S. at 472, 105 S.Ct. 2174).

III. DISCUSSION

Because the Court concludes herein that it lacks

personal jurisdiction over Defendant, it addresses Defendant’s motion to dismiss only as to Federal Rule of

Civil Procedure 12(b)(2) and does not examine Defendant’s other asserted bases for relief regarding improper venue under Rule 12(b)(3) and Plaintiffs’

App. 20

failure to state a claim upon which relief may be

granted under Rule 12(b)(6). (Doc. No. 74.) In addition,

because the issue of general jurisdiction over Defendant is not present in this case, the Court’s examines

only whether there is specific personal jurisdiction

over Defendant.5

A. Arguments of the Parties

1. Defendant’s Arguments in Favor of

Dismissal

In support of his motion, Defendant argues primarily that: (1) he lacks minimum contacts necessary

to establish jurisdiction in Pennsylvania; (2) the claims

at issue “do not arise out of or relate to any forumrelated conduct” on his part; (3) the Court’s exercise of

jurisdiction over him in this case “would offend ‘traditional notions of fair play and substantial justice’ ”; and

(4) the exercise of jurisdiction over him is precluded by

operation of the fiduciary shield doctrine in light of Defendant’s former role as a board member of Prithvi.

(Doc. No. 75 at 10-15.) As to his first basis for dismissal,

Defendant notes that one’s relationship with a third

party, alone, is not enough to render the exercise of

In its Memorandum addressing Defendant’s first motion to

dismiss, the Court stated that “for purposes of its Rule 12(b)(2)

analysis, it is not concerned with the existence of general jurisdiction, as it is clear that [Plaintiffs have] not shown, nor [do they]

allege, that Defendant possesses ‘continues and systematic’ contacts with Pennsylvania so as to render him subject to jurisdiction

in Pennsylvania generally.” (Doc. No. 55 at 9) (citing O’Connor,

496 F.3d at 317). The Court renews this conclusion herein and,

therefore, addresses only the issue of specific personal jurisdiction.

App. 21

jurisdiction proper (id. at 10) (citing Bristol-Meyers

Squibb Co. v. Super. Ct. of Cal., ___ U.S. ___ (2017)), and

that Plaintiffs have failed to demonstrate that he, “not

third parties associated with Prithvi, has contacts with

the forum and that those contacts deliberately targeted the forum.” (id. at 11). Defendant describes his

relevant activities as follows: “[h]e served as an independent non-executive board member of an Indian corporation”; “[h]e resided and worked in California

during his tenure as an independent non-executive

board member”; “[h]e attended board meetings that

took place in India via telephone from California or in

person in India”; and “[h]e had no role in the operations

of Prithvi and no financial interest in the company.”

(Id. at 11.) According to Defendant, such contacts do

not establish that he is subject to jurisdiction in this

Court, for “Plaintiffs have not identified any intentional conduct by Defendant that created contacts with

the forum” in that they “appear to be relying on hypothetical telephone calls and emails to individuals who

may have been residing in Pittsburgh at the time.” (Id.

at 12.)

In support of his argument that “Plaintiffs’ claims

do not arise out of or relate to any forum-directed conduct” on his part, Defendant asserts that “Plaintiffs’

claims derive from the fraudulent conduct of Prithvi

that occurred in Seattle” and “[t]he facts dictate that

the fraud occurred in Seattle and was directed at Canada[,]” thus demonstrating the absence of any “link to

Pittsburgh other than it was where the main [tortfeasor] formerly lived and worked, but even then she had

App. 22

relocated to Seattle prior to any involvement with

Plaintiffs.” (Id. at 13.) Further, Defendant argues that

“[a]ny action or inaction” on his part “as a board member or purported audit committee member would have

occurred in California and would have been directed to

Prithvi’s corporate headquarters in India.” (Id. at 14.)

With respect to his additional argument that the exercise of jurisdiction over him by this Court would not

comport with traditional notions of fair play and substantial justice, Defendant states that he “could not

have reasonably anticipated that his short tenure as

an independent non-executive board member of an Indian corporation, which ended in 2009, would demand

that he be haled into court in Pittsburgh (where he has

only been twice in his life) eight years later for an alleged fraudulent scheme committed over two years after he resigned from the position.” (Id.)6

On a related note, Defendant asserts that “Plaintiffs’ attempt to hold [him] liable for Prithvi’s conduct over two years after he resigned from his role and several years after having fully

litigated the case against Prithvi and sixteen other defendants in

federal court is transparent – they simply seek anyone in the

United States associated with Prithvi to write them a check.”

(Doc. No. 75 at 15.)

As to his argument regarding the application of the fiduciary

shield doctrine, Defendant asserts that the doctrine bars the exercise of jurisdiction over him in Pennsylvania because he “had a

limited role as an independent non-executive board member, de

minimis contact with Pennsylvania, and a non-existent role in the

alleged fraud, evidenced by Plaintiffs’ prosecution over five years

ago against the primary defendants before dragging [Defendant]

into a Pennsylvania lawsuit.” (Id. at 16.) As stated by Defendant

in his brief, the fiduciary shield doctrine generally mandates that

“individuals performing acts in a state in their corporate capacity

App. 23

2. Plaintiffs’ Arguments Against Dismissal

In opposition, Plaintiffs argue primarily that this

Court has personal jurisdiction over Defendant for

purposes of both of their claims under the governing

legal standards. First, Plaintiffs state that as it pertains to their negligence claim, the exercise of jurisdiction over Defendant by this Court is proper because:

(1) “Defendant executed his duties as a Board Member

by purposefully directing his activities to Pittsburgh”;

(2) “Plaintiffs’ claims ‘arise out of or relate to’ Defendant’s activities”; (3) and “[t]he assertion of personal

jurisdiction comports with ‘fair play and substantial

justice.’ ” (Doc. No. 87 at 10-15.) As to the first point,

Plaintiffs point to certain testimony of Defendant, stating that Defendant admitted that Prithvi’s U.S. operations were located in Pittsburgh, and that he was

aware that Madhavi Vuppalapati (“Ms. Vuppalapati”),

one of the primary tortfeasors, was located in Pittsburgh while he was a board member. (Id. at 11.) Further, Plaintiffs refer to Defendant’s testimony “that he

executed his Board duties by communicating with Ms.

Vuppalapati via email, and by telephone by dialing

her phone number that had a ‘412’ area code, which

corresponds to Pittsburgh[,]” and state that Prithvi’s

“records show that [it] paid for Defendant to have a

Pittsburgh cell phone number.” (Id.) Additionally,

Plaintiffs state that “Defendant testified that he

are not subject to the personal jurisdiction of the courts of that

state for those acts.” (Id.) (citing Nat’l Precast Crypt Co. v. DyCore of Pa., Inc., 785 F. Supp. 1186, 1191 (W.D. Pa. 1992)).

App. 24

traveled to [Prithvi’s] Pittsburgh office for an office

party to celebrate Ms. Vuppalapati’s birthday.” (Id.) As

to communications between Ms. Vuppalapati and Defendant, Plaintiffs also assert that Defendant exchanged emails with her to arrange board meetings

and inform her of his intent to resign from the board.

(Id. at 11-12.) Plaintiffs also note that Defendant previously sent an email prior to his resignation regarding

“issues” faced by Prithvi “from the audit” and that

when questioned about such issues, “Defendant testified that a newspaper article had been published that

stated [Prithvi’s] auditors found evidence that

[Prithvi] created fake customers.” (Id. at 12.)

Additionally, Plaintiffs refer to the documents produced by Sybase to support its argument that this

Court has personal jurisdiction over Defendant. Specifically, Plaintiffs cite email communications between

Ms. Vuppalapati and Defendant, noting that Ms. Vuppalapati’s email signature block “contains her Pittsburgh telephone number” and stating that when

Defendant requested permission from Sybase to become a board member of Prithvi in June of 2005, he

“acknowledged” Prithvi’s office in the United States.

(Id.) Further, Plaintiffs state that when Ms. Vuppalapati extended Defendant an offer to become a board

member, she did so “using her corporate email address

with a signature block that contains [her] Pittsburgh

telephone number.” (Id. at 12-13.)7 Further, Plaintiffs

On a similar note, Plaintiffs state that subsequent to becoming a board member, Defendant communicated with Ms. Vuppalapati while she “was located in Pittsburgh” and that their

App. 25

make reference to an email exchange in September of

2008 between Defendant and an individual named

Daarun Ghosh (“Ghosh”), who reportedly “contacted

Defendant to inform him of fraud in connection with

[Prithvi’s] bond offering[,]” maintaining that Ghosh

contacted Defendant again in October of that year in

an email referring to fraud in connection with the bond

offering and “suggested that Defendant resign from

[the] [b]oard.” (Id. at 13.) According to Plaintiffs, Defendant then discussed this communication with Ms.

Vuppalapati, who dismissed Ghosh’s comments and

described Ghosh as a “disgruntled broker” previously

engaged by Prithvi for purposes of the bond offering,

and that Defendant expressed concern about Ghosh’s

allegations to Ms. Vuppalapati by stating that he

agreed with her, but if he did not inquire to her regarding this allegation, he “would not be doing [his] job.”

(Id.)8

With regard to their argument that Plaintiffs’

claims “arise out of or relate to” Defendant’s activities,

communications pertained to Prithvi’s “business affairs including, without limitation, M&A activities.” (Doc. No. 87 at 13.)

Plaintiffs additionally state that Defendant contacted Prithvi’s

“personnel in Pittsburgh to conduct business, and specifically to

obtain a [non-disclosure-[a]greement that lists Pittsburgh as the

business address.” (Id.)

Plaintiffs also refer to a declaration from Guru Pandyar, “a

former [Prithvi] employee who resided in Pittsburgh and was responsible for managing [Prithvi’s] accounts receivable[,]” who

stated that “between 2005-2009, Ms. Vuppalapati executed

[Prithvi’s] U.S. operations in Pittsburgh, not in Washington, and

that she was involved with [Prithvi’s] accounts receivable.” (Id. at

14.)

App. 26

Plaintiffs assert Defendant “was involved with the Bogus Accounts Receivable, was a member of [Prithvi’s]

audit committee, and routinely conducted his Board

duties by contacting personnel in Pittsburgh.” (Id. at

14-15.) Moreover, Plaintiffs state that Defendant has

not shown that the exercise of personal jurisdiction

over him by this Court as to the negligence claim contradicts traditional notions of “fair play and substantial justice” because in this regard, “Defendant simply

repeats his argument that he was not involved with

the Bogus Accounts Receivable and that it would be

unfair to require Defendant to defend himself in Pittsburgh when he resides in California[,]” which warrants

denial of his motion. (Id. at 15.) Ostensibly in further

support of this point, Plaintiffs state that “[i]n fact, it

makes little sense for Defendant to contest personal

jurisdiction because, even if he is successful, he may

have to re-litigate in California some of the issues already decided by this Court . . . and continue to litigate

this matter at a higher hourly rate” because “San Francisco attorney hourly rates are generally higher than

Pittsburgh’s.” (Id. at 15-16.)

As to Plaintiffs’ fraud claim, Plaintiffs assert that

the applicable legal standard for personal jurisdiction

is satisfied because: (1) “Defendant committed an intentional tort”; (2) “Plaintiffs felt the brunt of the harm

in Pittsburgh”; and (3) “Defendant expressly aimed his

tortious conduct [toward] Pittsburgh.” (Id. at 16-17.) In

support of the first point, Plaintiffs note that their complaint alleges that Defendant committed an intentional tort – fraud – and that they “have otherwise

App. 27

presented evidence” supporting this allegation. (Id. at

16.) As to the second argument noted supra, Plaintiffs

contend that they “entered into the loan factoring

agreement with [Prithvi] based in Pittsburgh . . . and

sent a total of $97,249,417 to [Prithvi’s] PNC Bank account located in Pittsburgh pursuant to the factoring

receivable fraud[,] which resulted in $33,579,660 in total loss to Plaintiffs.” (Id.) Because Prithvi “and others

then transferred almost the entire amount received

from Plaintiffs out of PNC Bank in Pittsburgh and

Plaintiffs have not been able to recover same[,]” according to Plaintiffs, they “felt the brunt of the harm in

Pittsburgh and Pittsburgh is the focal point of the

harm suffered by Plaintiffs.” (Id. at 16-17.) Finally, as

to the third argument prong noted above, Plaintiffs refer to previous portions of their briefing to support the

contention that “Defendant directed his fraudulent

conduct activities toward Pittsburgh.” (Id. at 17.)9

In addition, Plaintiffs criticize Defendant’s argument as to

the applicability of the fiduciary shield doctrine, stating that,

first, “it is questionable whether this doctrine even exists[,]” and

asserting that even if the doctrine is recognized, “Defendant’s attempt to hide behind the fiduciary shield doctrine” lacks merit because: (1) “Defendant was a [Prithvi] Board Member and member

of the Audit Committee who worked directly with [Prithvi’s] senior executives”; (2) “Defendant had extensive contacts with Pittsburgh”; and (3) “Defendant created, or assisted in the creation of,

the Bogus Accounts Receivable to induce investors to invest in

[Prithvi] and to induce commercial lenders such as Plaintiffs to

lend money to [Prithvi][,]” an issue that “goes to the heart of the

parties’ dispute and cannot be decided pre-merits discovery.” (Id.

at 18.) Because the Court ultimately concludes herein that it lacks

jurisdiction over Defendant under the jurisdictional analyses applicable to both of Plaintiffs’ claims, the Court does not resolve

App. 28

B. Whether this Court has Personal Jurisdiction over Defendant

Upon careful consideration of the record, the parties’ arguments, and the applicable law, the Court

concludes that it lacks personal jurisdiction over Defendant for purposes of both of Plaintiffs’ claims,10

and, as a result, the Court must dismiss the complaint

in its entirety under Federal Rule of Civil Procedure

12(b)(2).11

any issue as to the applicability of the fiduciary shield doctrine to

Defendant.

To the extent Plaintiffs assert that Defendant has waived

any Rule 12(b)(2) argument by “seeking affirmative relief from

this Court[,]” (Doc. No. 87 at 5), the Court rejects this argument

because although Defendant may have filed other motions in this

action while either his original motion to dismiss or the instant

renewed motion to dismiss was pending, “the mere filing of a motion does not necessarily constitute a waiver of the personal jurisdiction defense.” See Ciolli v. Iravani, 625 F. Supp. 2d 276, 290

(E.D. Pa. 2009) (concluding that the defendants’ filing of certain

motions did not amount to a submission to the court’s jurisdiction

and explaining that “[t]he Third Circuit has concluded that affirmative relief is implicated where the [C]ourt ‘considers the

merits or quasimerits of a controversy’ ” (quoting Wyrough &

Loser, Inc. v. Pelmore Labs., Inc., 376 F.2d 543, 547 (3d Cir.

1967))).

As noted previously, because the Court concludes that personal jurisdiction over Defendant is lacking and dismissal of the

complaint is warranted, the Court need not address Defendant’s

other asserted bases for dismissal that invoke Rules 12(b)(3) and

12(b)(6).

App. 29

1. Plaintiffs’ Fraud Claim (Count I)

The Court finds that it would be improper to exercise personal jurisdiction over Defendant as to the

fraud claim asserted in Count I of the complaint. As a

threshold matter, “Plaintiffs bear the burden to show a

prima facie case of personal jurisdiction over [D]efendant[.]” See In re Nazi Era Cases Against German Defendants Litig., 153 F. App’x 819, 823 (3d Cir. 2005).

Further, because Defendant has raised the defense of

lack of personal jurisdiction, Plaintiffs must demonstrate the existence of jurisdiction with “affidavits or

other competent evidence that jurisdiction is proper.”

See Metcalfe, 566 F.3d at 330 (quoting Dayhoff Inc. v.

H.J. Heinz Co., 86 F.3d 1287, 1302 (3d Cir. 1996)); see

also In re Nazi Era Cases, 153 F. App’x at 823 (noting

that “[t]he [d]istrict [c]ourt did not conduct an evidentiary hearing, but it did allow jurisdictional discovery”

and stating that, accordingly, the court was concerned

with whether the plaintiffs had met their burden in establishing the existence of jurisdiction based on competent evidence, “and not merely upon [the] plaintiffs’

allegations”). Here, despite having been afforded the

opportunity to conduct jurisdictional discovery as to

Defendant, Plaintiffs have failed to meet this burden.

As to Plaintiffs’ fraud claim, the complaint states

that Defendant “knew that the [f ]raudulent [d]ocuments were actually false or was reckless by failing to

determine whether or not they were actually false”;

Defendant made representations “with the intent that

the public at large and commercial lenders such as

[Plaintiffs] would rely upon it”; and having relied on

App. 30

the documents at issue in “deciding to enter into the

Factoring Agreement[,]” Plaintiffs were harmed because they “would not have entered into the Factoring

Agreement” had they known that the documents were,

in actuality, fraudulent. (Doc. No. 1 ¶¶ 33-39.) Because

Plaintiffs have asserted a claim for fraud, which is an

intentional tort,12 the Court examines the propriety of

personal jurisdiction for purposes of this claim using

the “effects” test enunciated in Calder v. Jones, 465 U.S.

783 (1984), and, therefore, must determine whether

the following elements have been satisfied:

(1) [Defendant] committed an intentional

tort;

(2) [Plaintiffs] 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

[Plaintiffs] as a result of that tort; [and]

(3) [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.

IMO Indus., 155 F.3d at 265-66 (“To summarize, we believe that the Calder ‘effects test’ requires the plaintiff

to show the following. . . .”).

See, e.g., Mendelsohn, Drucker & Assocs. v. Titan Atlas

Mfg., Inc., 885 F. Supp. 2d 767, 782 (E.D. Pa. 2012) (stating that

the first prong of the “effects test” used for analyzing personal jurisdiction in an intentional tort case was met when the plaintiff

“alleg[ed] that [the defendant] committed fraud, an intentional

tort” (citing Remick, F.3d at 258)).

App. 31

In light of this standard, it is evident that this

Court lacks personal jurisdiction over Defendant for

purposes of Plaintiffs’ fraud claim. Plaintiffs have met

the first element by virtue of their assertions regarding

Defendant’s alleged tortious conduct because, as noted

supra, courts have held that this element is met when

there is an allegation of an intentional tort claim, such

as one for fraud. See, e.g., Mendelsohn, 885 F. Supp. 2d

at 782; see also Vizant Techs., LLC v. Whitchurch, 97

F. Supp. 3d 618, 637 (E.D. Pa. 2015) (concluding that

the court had personal jurisdiction over defendants for

purposes of fraud claim under “effects test” and noting

first that the “plaintiffs have alleged an intentional

tort”). Accordingly, the first element of the effects test

is satisfied. Turning to the second element – whether

Plaintiffs “felt the brunt of the harm” in Pennsylvania

such that this forum is “the focal point” of Plaintiffs’

harm – the Court finds that this element is also satisfied in that Plaintiffs assert that upon entering into

the loan factoring agreement with Prithvi, Plaintiffs

“sent a total of $97,249,417 to [Prithvi’s] PNC Bank

Account located in Pittsburgh pursuant to the factoring receivable fraud [that] resulted in $33,579,660 in

total loss to Plaintiffs.” (Doc. No. 87 at 16.) Plaintiffs’

monetary loss, therefore, occurred in Pittsburgh for

purposes of its claim against Defendant and, therefore,

the Court finds that this element is satisfied.

Despite the first two elements of the Calder effects

test being met, though, the Court concludes that jurisdiction over Defendant is improper as to the fraud

claim because the third element – that Defendant

App. 32

“expressly aimed his tortious conduct at the forum

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

the tortious activity” is not met. Notably, this Court

previously permitted jurisdictional discovery as to Defendant’s contacts with Pittsburgh in disposing of Defendant’s first motion to dismiss, and subsequently

permitted Plaintiffs additional time to conduct said

discovery, demonstrating that Plaintiffs have been afforded ample opportunity to develop and present evidence to this Court establishing that jurisdiction over

Defendant is proper. Despite these opportunities, however, Plaintiffs have directed the Court to evidence of

Defendant’s contacts with Pittsburgh that may be generously described as sparse.

First, while Plaintiffs have submitted multiple

declarations ostensibly to speak to Defendant’s alleged

involvement in the underlying fraud, none of these

declarations adequately demonstrates that Defendant

specifically directed fraudulent conduct as this forum.

While these declarations may speak to the process

through which others learned of Prithvi’s fraud (Doc.

No. 87-1 at 1-3), or the manner in which Plaintiffs were

harmed as a result of the fraud (Doc. No. 89-9 at 3),

none of them explains, in a non-conclusory fashion,

how Defendant aimed his alleged tortious conduct at

this forum.13 Rather, for purposes of this Court’s

Defendant filed a motion to strike the declarations of

Srivastav, Pandyar[,] and Kulkarni (Doc. No. 91), concurrently

with his reply brief as to his renewed motion to dismiss (Doc. No.

93), on March 27, 2019. Because of the Court’s conclusion herein

that there is insufficient evidence to establish the existence of personal jurisdiction over Defendant, however, the Court need not

App. 33

personal jurisdictional analysis, they appear only to

posit that Defendant contacted Ms. Vuppalapati, who

was based in Pittsburgh during the relevant times in

question. See Doc. No. 87-8 at 2-3 (stating that Ms.

Vuppalapati “was involved in managing [Prithvi’s] accounts receivable” and that Defendant contacted her

“via telephone on multiple occasions to execute his

Board duties while she was located in Pittsburgh”).

While Defendant’s relationship with Ms. Vuppalapati

may be of import as to this Court’s jurisdictional analysis, it cannot, on its own, render the exercise of personal jurisdiction over Defendant proper. See, e.g.,

Walden v. Fiore, 572 U.S. 277, 286 (2014) (“To be sure,

a defendant’s contacts with the forum [s]tate may be

intertwined with his transactions or interactions with

the plaintiff or other parties. But a defendant’s relationship with a plaintiff or third party, standing alone,

is an insufficient basis for jurisdiction.” (citing Rush v.

Savchuk, 444 U.S. 320, 332 (1980))).

Even considering Plaintiffs’ additional evidence

submitted in opposition to the motion to dismiss, Plaintiffs have failed to meet their burden in demonstrating

that Defendant expressly aimed his conduct at this

forum so as to render jurisdiction proper under the

“effects” test. Specifically, Plaintiffs point to email

communications between Defendant and Ms. Vuppalapati, as well as email messages between Defendant

and another actor in the fraudulent scheme, Satish

Vuppalapati (“Mr. Vuppalapati”), as demonstrative of

address the arguments presented in Defendant’s motion to strike

and, accordingly, will deny the motion as moot.

App. 34

Defendant’s efforts to direct fraudulent actions toward

Pittsburgh. These exhibits, however, are unavailing for

purposes of the relevant inquiry the Court must employ because they simply do not demonstrate that Defendant directly aimed his alleged conduct toward the

forum. For example, Plaintiffs have submitted a message in which Defendant forwarded an email from Mr.

Vuppalapati that included a powerpoint presentation

on Prithvi’s IPO as an attachment. (Doc. No. 87-2.)

While this message may be interpreted as implicating

Defendant in Prithvi’s fraud generally, it does nothing

to demonstrate a sufficient connection to this forum for

purposes of Plaintiffs’ fraud claim in the instant case.

While Plaintiffs also submit miscellaneous email messages between Defendant and Ms. Vuppalapati (Doc.

No. 87-8 at 2-8, 12-16), and email exchanges between

Defendant and associates of Sybase (id. at 9-11), these

messages do not refer to any activities on the part of

Defendant with respect to Prithvi’s fraud and, therefore, are of no use in establishing that Defendant

aimed his tortious conduct at this forum.

Moreover, even the communications that make

some reference to the alleged fraud – such as an email

sent to Ms. Vuppalapati, Mr. Vuppalapati, and Defendant by a “freelance journalist doing a story on Prithvi”

in connection with “the use of Indian IT companies for

money laundering” (Doc. No. 87-7 at 2-4) – are insufficient to satisfy the effects test for Plaintiff ’s fraud

claim because they similarly do not demonstrate that

Defendant specifically aimed his conduct at this forum.

Rather, the crux of Plaintiffs’ entire argument as to

App. 35

their ability to satisfy the personal jurisdiction test for

their fraud claim appears grounded in the notion that,

by virtue of his affiliation with a company having a location in Pittsburgh and communications with individuals, such as Ms. Vuppalapati, who were based in

Pittsburgh at the time, Defendant directed his tortious

conduct at this forum so as to render him subject to

specific jurisdiction here. Such an argument, however,

is unsupported by the governing law, and as a result,

this Court cannot exercise jurisdiction over Defendant

for purposes of Plaintiffs’ fraud claim.14 Accordingly,

the Court will grant Defendant’s motion to dismiss as

to Count I of the complaint pursuant to Federal Rule

of Civil Procedure 12(b)(2).

2. Plaintiffs’ Negligence Claim (Count

II)

The Court similarly concludes that it lacks personal jurisdiction over Defendant for purposes of

Count II of the complaint, which sets forth a negligence

claim against Defendant. Through Count II, Plaintiffs

The Court notes that, even if it were to examine the propriety of personal jurisdiction using the “traditional” test, rather

than the Calder “effects” test, the Court would also conclude that

it lacks personal jurisdiction over Defendant for purposes of the

fraud claim, for courts have appeared to treat the “traditional”

standard as imposing a higher bar for Plaintiffs seeking to demonstrate the presence of personal jurisdiction. See, e.g., Vizant, 97

F. Supp. 3d at 636-37 (“Thus, even if our jurisdiction is lacking

pursuant to the traditional analysis, we may exercise personal jurisdiction over defendants with respect to plaintiffs’ conversion

claim based upon Calder’s ‘effects test.’“).

App. 36

allege that Defendant: (1) “had a duty to conduct due

diligence and to otherwise undertake all actions necessary to ensure that Prithvi’s customers and accounts

receivables were accurately reflected on Prithvi’s

books and records” and (2) “had a duty to ensure that

any false information pertaining to Prithvi’s customers

and accounts receivable would not be disseminated to

the public at large and to . . . [Plaintiffs][,]” and that

Defendant breached these duties by not “conducting

due diligence” and “otherwise undertak[ing] all actions

necessary” to ensure that Prithvi’s customers and accounts receivable were accurately recorded, and by not

taking action “to have Prithvi withdraw the fraudulent

documents upon learning that they were disseminated

to the public at large and . . . [Plaintiffs].” (Doc. No. 1

¶¶ 41-45.) Plaintiffs also allege that Defendant’s

breaches of these duties caused Plaintiffs “to rely upon

the Fraudulent Documents to decide to enter into the

Factoring Agreement” and that, consequently, Plaintiffs suffered harm in that they would not have entered

into the agreement had they been aware of the fraudulent nature of these documents. (Id. ¶¶ 46-47.) Because Count II of Plaintiffs’ complaint sets forth a

negligence claim against Defendant, in order to determine whether there is personal jurisdiction over Defendant as to this claim, the Court must resolve

whether Defendant “purposefully directed” his activities at the forum, and whether Plaintiffs’ claim

“ ‘arise[s] out of or relate[s] to’ at least one of those activities.” See O’Connor, 496 F.3d at 317 (quoting Burger

King, 471 U.S. at 472, 105 S.Ct. 2174; Helicopteros, 466

U.S. at 414, 104 S.Ct. 1868). If those requirements are

App. 37

satisfied, the Court may then “consider whether the exercise of jurisdiction over [Defendant] otherwise ‘comport[s] with fair play and substantial justice.’ ” See id.

(quoting Burger King, 471 U.S. at 476, 105 S.Ct. 2174).

Having reviewed the record, the parties’ arguments, and the applicable law, the Court concludes

that Plaintiffs have not met their burden in showing

that this Court has personal jurisdiction over Defendant as to their negligence claim. Similar to its jurisdictional analysis as to Plaintiffs’ fraud claim, the

Court finds that under the analysis applicable to the

negligence claim, Defendant did not “purposefully direct” his alleged fraudulent conduct toward Pittsburgh. Because the aforementioned legal standard

requires that both elements are satisfied, the exercise

of jurisdiction would be improper because Plaintiffs

have not met the “purposefully directed” prong of this

test. Moreover, even if this Court were to find that Defendant purposefully directed his activities at the forum and that Plaintiffs’ claim arises out of or relates

to those activities, it is clear that the exercise of jurisdiction over Defendant would offend traditional notions of fair play and substantial justice. See id.

(quoting Burger King, 471 U.S. at 476, 105 S.Ct. 2174).

It bears noting that, although “[p]hysical entrance

into the forum is not required[,]” Defendant must have

engaged in “deliberate targeting of the forum.” See id.

In the instant case, this simply did not occur. Here,

Defendant recalls having been to Pittsburgh only twice

in his life, visiting the city in 2007 with his family and,

during that trip, “visit[ing] Prithvi’s office . . . for

App. 38

Madhavi[ ] [Vuppalapati’s] birthday party during

which [he] met with some company personnel,” and, in

another instance, traveling to Pittsburgh for a wedding. (Doc. No. 75-1 ¶¶ 33-34.) Needless to say, such

contacts are insufficient to render the exercise of jurisdiction over Defendant consonant with traditional

notions and fair play and substantial justice, given

that they are unrelated to Plaintiffs’ allegations regarding Defendant’s tortious activity in connection

with the fraudulent accounts receivable. Moreover,

while the Court is mindful of the fact that physical

presence in the forum is not always required to establish the existence of personal jurisdiction, the other

purported contacts emphasized by Plaintiffs are similarly insufficient to defeat Defendant’s motion, as explained previously. In light of Defendant’s sparse

contacts with the forum, which are, at best, only tenuously related to Plaintiffs’ negligence claim, the Court

cannot exercise jurisdiction over Defendant so as “to

ensure that [D]efendant[ ] receive[s] due process as required by the Fourteenth Amendment.” See Pennzoil

Prods. Co. v. Colelli & Assocs., Inc., 149 F.3d 197, 201

(3d Cir. 1998). Accordingly, the Court will grant Defendant’s motion to dismiss as to Count II of the complaint for lack of personal jurisdiction.

IV. CONCLUSION

Based on the foregoing, the Court will grant Defendant’s motion to dismiss (Doc. No. 74), and motion

App. 39

for attorney’s fees (Doc. No. 61),15 in their entirety, and

deny Defendant’s and Plaintiff ’s motions to strike as

moot (Doc. Nos. 91, 94). An appropriate Order follows.

ORDER

AND NOW, on this 4th day of April 2019, in accordance with the Memorandum issued concurrently

with this Order, IT IS ORDERED THAT:

Defendant Omkar Bhongir (“Defendant”)’s renewed motion to dismiss (Doc. No. 74), is

GRANTED pursuant to Federal Rule of Civil

Procedure 12(b)(2);

Defendant’s motion for attorney’s fees incurred in opposing Plaintiffs’ motion to compel (Doc. No. 61), is GRANTED, and

Defendant shall be awarded three thousand,

three hundred and sixty-six dollars and sixty

cents ($3,366.60) in attorney’s fees. The attorney’s fees will be paid directly to Defendant,

and sent to the law offices of Defendant’s

counsel, Laura A. Lange, Esquire;

As noted supra, in disposing of Plaintiff ’s motion to compel

production of documents and Defendant’s attendance at a deposition (Doc. No. 56), the Court directed Defendant to submit, pursuant to Federal Rule of Civil Procedure 37(a)(5)(B), “an itemized

statement, including attorney’s fees, of the expenses incurred in

opposing Plaintiff ’s motion to compel” (Doc. No. 60 at 1). Accordingly, having already determined that such an award of attorney’s

fees is proper under Rule 37, the Court will grant Defendant’s

motion for attorney’s fees. (Doc. No. 61.)

App. 40

Defendant’s motion to strike (Doc. No. 91), and

Plaintiffs’ motion to strike (Doc. No. 94), are

DENIED AS MOOT; and

The Clerk of Court is directed to CLOSE the

above-captioned case.

App. 41

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

-----------------------------------------------------------------------

No. 19-1807

-----------------------------------------------------------------------

KYKO GLOBAL, INC., a Canadian Corporation;

KYKO GLOBAL GMBH, a Bahamian Corporation,

Appellants

OMKAR BHONGIR, an Individual

-----------------------------------------------------------------------

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 2-17-cv-00212)

District Judge: Hon. Yvette Kane

-----------------------------------------------------------------------

SUR PETITION FOR PANEL REHEARING

-----------------------------------------------------------------------

(Filed Apr. 24, 2020)

Present: JORDAN, RESTREPO, and GREENBERG,

Circuit Judges.

The petition for rehearing filed by appellants in

the above-entitled case having been submitted to the

judges who participated in the decision of this Court,

App. 42

it is hereby ORDERED that the petition for rehearing

by the panel is denied.

BY THE COURT,

s/ Kent A. Jordan

Circuit Judge

Dated: April 24, 2020

CJG/cc: Laura A. Lange, Esq.

Joseph F. Rodkey, Jr., Esq.

Jayson M. Macyda, Esq.

App. 43

U.S.C.A. Const. Amend. V

Amendment V. Grand Jury Indictment for Capital

Crimes; Double Jeopardy; Self-Incrimination; Due

Process of Law; Takings without Just Compensation

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offence to be twice put

in jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

U.S.C.A. Const. Amend. XIV

AMENDMENT XIV. CITIZENSHIP; PRIVILEGES

AND IMMUNITIES; DUE PROCESS; EQUAL PROTECTION; APPOINTMENT OF REPRESENTATION; DISQUALIFICATION OF OFFICERS;

PUBLIC DEBT; ENFORCEMENT

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, without

App. 44

due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned

among the several States according to their respective

numbers, counting the whole number of persons in

each State, excluding Indians not taxed. But when the

right to vote at any election for the choice of electors

for President and Vice President of the United States,

Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants

of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the

basis of representation therein shall be reduced in the

proportion which the number of such male citizens

shall bear to the whole number of male citizens

twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice

President, or hold any office, civil or military, under the

United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an

officer of the United States, or as a member of any

State legislature, or as an executive or judicial officer

of any State, to support the Constitution of the United

States, shall have engaged in insurrection or rebellion

against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds

of each House, remove such disability.

App. 45

Section 4. The validity of the public debt of the United

States, authorized by law, including debts incurred for

payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State

shall assume or pay any debt or obligation incurred in

aid of insurrection or rebellion against the United

States, or any claim for the loss or emancipation of any

slave; but all such debts, obligations and claims shall

be held illegal and void.

Section 5. The Congress shall have power to enforce,

by appropriate legislation, the provisions of this article.

42 Pa.C.S.A. § 5322

§ 5322. Bases of personal jurisdiction over

persons outside this Commonwealth

(a) General rule. – A tribunal of this Commonwealth may exercise personal jurisdiction over a person (or the personal representative of a deceased

individual who would be subject to jurisdiction under

this subsection if not deceased) who acts directly or by

an agent, as to a cause of action or other matter arising

from such person:

(1) Transacting any business in this Commonwealth. Without excluding other acts which may

constitute transacting business in this Commonwealth, any of the following shall constitute transacting business for the purpose of this paragraph:

App. 46

(i) The doing by any person in this Commonwealth of a series of similar acts for the purpose of thereby realizing pecuniary benefit or

otherwise accomplishing an object.

(ii) The doing of a single act in this Commonwealth for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing an

object with the intention of initiating a series

of such acts.

(iii) The shipping of merchandise directly or

indirectly into or through this Commonwealth.

(iv) The engaging in any business or profession within this Commonwealth, whether or

not such business requires license or approval

by any government unit of this Commonwealth.

The ownership, use or possession of any real

property situate within this Commonwealth.

(2) Contracting to supply services or things in

this Commonwealth.

(3) Causing harm or tortious injury by an act or

omission in this Commonwealth.

(4) Causing harm or tortious injury in this Commonwealth by an act or omission outside this

Commonwealth.

(5) Having an interest in, using, or possessing

real property in this Commonwealth.

App. 47

(6)(i) Contracting to insure any person, property,

or risk located within this Commonwealth at the

time of contracting.

(ii) Being a person who controls, or who is a

director, officer, employee or agent of a person

who controls, an insurance company incorporated in this Commonwealth or an alien insurer domiciled in this Commonwealth.

(iii) Engaging in conduct described in section 504 of the act of May 17, 1921 (P.L. 789,

No. 285), known as The Insurance Department Act of 1921. 1

(7) Accepting election or appointment or exercising powers under the authority of this Commonwealth as a:

(i)

Personal representative of a decedent.

(ii) Guardian of a minor or incapacitated

person.

(iii)

Trustee or other fiduciary.

(iv)

Director or officer of a corporation.

(8) Executing any bond of any of the persons

specified in paragraph (7).

(9) Making application to any government unit

for any certificate, license, permit, registration or

similar instrument or authorization or exercising

any such instrument or authorization.

(10) Committing any violation within the jurisdiction of this Commonwealth of any statute,

home rule charter, local ordinance or resolution, or

App. 48

rule or regulation promulgated thereunder by any

government unit or of any order of court or other

government unit.

(b) Exercise of full constitutional power over

nonresidents. – In addition to the provisions of subsection (a) the jurisdiction of the tribunals of this Commonwealth shall extend to all persons who are not

within the scope of section 5301 (relating to persons)

to the fullest extent allowed under the Constitution of

the United States and may be based on the most minimum contact with this Commonwealth allowed under

the Constitution of the United States.

a person is based solely upon this section, only a cause

of action or other matter arising from acts enumerated

in subsection (a), or from acts forming the basis of jurisdiction under subsection (b), may be asserted

against him.

(d) Service outside this Commonwealth. – When

the exercise of personal jurisdiction is authorized by

this section, service of process may be made outside

this Commonwealth.

(e) Inconvenient forum. – When a tribunal finds

that in the interest of substantial justice the matter

should be heard in another forum, the tribunal may

stay or dismiss the matter in whole or in part on any

conditions that may be just.

App. 49

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 19-1807

Kyko Global Inc. and Kyko Global GmbH,

Plaintiffs/Appellants

Omkar Bhongir

Defendant/Appellee

On Appeal From Western District of Pennsylvania

Civil Action No. 2-17-cv-00212

Petition for Panel Rehearing

(Filed Apr. 13, 2020)

Counsel of Record for Appellants:

Jayson M. Macyda, Esq.

MI Bar No. P64733

Kyko Global Inc. and

Kyko Global GmbH

P.O. Box 87491

Canton, MI 48187

248-243-6685

Joseph F. Rodkey, Jr. Esq.

PA.I.D. No. 66757

Fowkes Rodkey

732 Allegheny River

Boulevard

Oakmont, PA 15139

412-828-2802

jrodkey@fowkesrodkey.com

[i] Table of Contents

Table of Authorities .............................................

Cases .................................................................

Court Rules .......................................................

Statutes .............................................................

App. 50

Introduction ...............................................

II.

Argument .....................................................

Point 1: This Panel Did Not Address

Whether Mr. Bhongir’s Fed. R. Civ. P.

12(b)(2) Motion Was Legally Supported ......

Point 2: This Panel Misapprehended Walden When It Found Personal Jurisdiction

Lacking .........................................................

Point 3: Kyko Was Improperly Denied Access to Evidence ........................................... 10

Point 4: Kyko Should Not Be Ordered to Pay

Attorneys’ Fees............................................. 13

III.

Conclusion ....................................................

[ii] Table of Authorities

Cases

Andreas v. Volkswagen of America Inc.,

336 F.3d 789, 793 (8th Cir. 2003) ..............................6

Bell Atlantic Corp. v. Twombly,

550 U.S. 544 (2007) ...................................................4

Calder v. Jones,

465 U.S. 783 (1984) ...................................................3

Carrabba v. Morgat, 2014 WL 229280,

Case No. 2:12-6342, at *4 (D.N.J. Jan. 17,

2014) ..........................................................................8

Eurofins Pharma US Holdings v.

Bioalliance Pharma SA,

623 F.3d 147, 155 (3rd Cir. 2010) ..............................8

App. 51

Evans v. Port Authority of New York

and New Jersey,

273 F.3d 346, 361 (3rd Cir. 2001) ............................14

Fletcher-Harlee Corp. v. Pote Concrete

Contractors Inc.,

482 F.3d 247, 252 (3rd Cir. 2007) ..............................5

Grand Entertainment Group Ltd. v.

Star Media Sales Inc.,

988 F.2d 476, 482 (3rd Cir. 1993) .......................... 4, 8

Grand Entertainment Group, Ltd. v.

Star Media Sales, Inc.,

988 F.2d 476, 482 (3rd Cir.1993) ........................... 4, 8

Hensley v. Eckerhart,

461 U.S. 424, 437 (1983) ..........................................14

Huber v. Taylor,

532 F.3d 237, 249.....................................................14

[iii] Imo Industries, Inc. v. Kiekert AG,

155 F.3d 254 (3rd Cir. 1998) ......................................5

Irons v. Steinberg,

22 Pa. D.&C.3d 36, 37 (1981) ....................................8

Kyko Global Inc. et al v. Prithvi Information

Solutions Limited et al.

Case No. 2:13-CV-1034 MJP ......................... 1, 15, 16

Lehman Bros. Holdings Inc. v. Gateway

Funding Diversified Mortg. Servs. L.P.

785 F.3d 96, 102 (3rd Cir. 2015) ..............................13

Marten v. Godwin,

499 F.3d 290, 295-296 (3rd. Cir. 2007) ......................3

McNeil v. Wisconsin,

501 U.S. 171, 181, n. 2 (1991) ....................................6

App. 52

Metcalfe v. Renaissance Marine Inc.,

566 F.3d 324, 331 (3rd Cir. 2009) ..............................3

Mosaid Techs Inc. v. Samsung Elecs. Co.,

224 F.R.D. 595, 597 (D. N.J. 2004) ..........................15

O’Connor v. Sandy Lane Hotel Co., Ltd.,

496 F.3d 312, 318 (3rd Cir.2007) ...............................9

Phillips v. County of Allegheny,

515 F.3d 224, 230 (3rd Cir. 2008) ..............................4

Public Interest Research Group of

New Jersey Inc. v. Windall,

51 F.3d 1179, 1189 (3rd Cir. 1995) ..........................14

Sanchez v. U.S. Airways, Inc.,

202 F.R.D. 131, 135 (E.D. Pa. 2001) ........................12

United States v. Pryce,

938 F.2d 1343, 1353 (D.C. Cir. 1991).........................6

[iv] United States. v. Bendolph,

409 F.3d 155, 172 (3rd Cir. 2005) ..............................6

Walden v. Fiore,

571 U.S. 277 (2014) ............................................... 1, 7

Washington v. Philadelphia County Court of

Common Pleas,

89 F.3d 1031, 1035 (3rd Cir. 1996) ..........................15

Court Rules

Fed. R. Civ. P. 12(b)(2) ................................. 1, 3, 4, 7, 10

Fed. R. Civ. P. 37(a)(5)(B) .................................. 2, 13, 16

Fed. R. Civ. P. 12(b)(6) ...................................................4

Fed. R. Civ. P. 7(b)(1)(B) ................................................6

App. 53

Statutes

42 Pa. C.S.A. § 5322(a)(7)(iv) ...................... 1, 7, 8, 9, 10

15 Pa. C.S.A. § 402(d)....................................................7

[1] I.

Introduction

Appellants Kyko Global Inc. and Kyko Global

GmbH (“Kyko”) assert that this Panel overlooked a

critical aspect of Kyko’s appeal that has broad implications for the bench and bar: Whether a defendant, as

the moving party, is required to legally support his Fed.

R. Civ. P. 12(b)(2) motion and advance legal arguments

in support of same before a plaintiff incurs the burden

of producing jurisdictional evidence in response to the

motion? The case law does not clearly define what is

required of a defendant to legally mount a challenge to

jurisdiction at the outset. Here, Kyko’s Complaint was

dismissed under a legal precept – the “effects test” –

that Appellee Omkar Bhongir failed to raise and without Kyko having any opportunity to address prior to

dismissal.

This Panel misapprehended Walden v. Fiore, 571

U.S. 277 (2014) to find personal jurisdiction lacking.

Contrary to this Panel’s view, Kyko does not assert that

personal jurisdiction exists due to Mr. Bhongir’s mere

association with individuals in Pennsylvania. 42 Pa.

C.S.A. § 5322(a)(7)(iv) explicitly permits the exercise of

personal jurisdiction over a Director of a corporation.

Personal jurisdiction exists over Mr. Bhongir given his

role as a Director of Prithvi Information Solutions Ltd.

(“PISL”) and his email and telephone contacts that he

App. 54

directed to Pittsburgh to doctor PISL’s books to fraudulently induce Kyko to lend money to PISL in Pittsburgh.

[2] Kyko was wrongfully denied jurisdictional evidence. Mr. Bhongir claimed that he did not know

whether the documents in his possession contain jurisdictional information. Yet, Mr. Bhongir unilaterally

withheld these documents based on a relevancy objection when he admitted that he does not even know

whether the documents in his possession are relevant.

This Panel has, in Kyko’s view, inadvertently sanctioned this conduct. To the extent this Panel believes

personal jurisdiction is lacking based on the evidence

adduced to date (and that Mr. Bhongir’s motion was

somehow legally supported), this Panel should remand

to the District Court to have these documents be produced, or a log generated which describes these documents, to allow the jurisdictional discovery process to

be completed.

The issuance of an attorney fee award was legal

error regardless of whether this Panel finds that

Kyko’s motion to compel documents/production of a log

was properly denied or was not substantially justified

under Fed. R. Civ. P. 37(a)(5)(B).

Accordingly, this Panel should reverse the District

Court’s dismissal for lack of personal jurisdiction; or

alternatively, remand to the District Court to allow the

jurisdictional discovery process to be completed. The

attorneys’ fees award should be vacated.

App. 55

[3] II.

Argument

Point 1: This Panel Did Not Address Whether

Mr. Bhongir’s Fed. R. Civ. P. 12(b)(2) Motion Was

Legally Supported.

Kyko asserted that Mr. Bhongir’s Fed. R. Civ. P.

12(b)(2) Motion was not legally supported because he

failed to address the personal jurisdiction analysis

applicable to intentional tort claims (“effects test”) set

forth in Calder v. Jones, 465 U.S. 783 (1984) and Imo

Industries, Inc. v. Kiekert AG, 155 F.3d 254 (3rd Cir.

1998). [Appellant Brf. Pgs. 20-23]; [Appellant Reply

Brf. Pgs. 11-14]; [Appellant Oral Argument Request].

This Panel’s Opinion does not address the issue.1

Case law is replete with statements that, upon a

defendant’s challenge, it is a plaintiff ’s burden to establish personal jurisdiction. However, the case law

does not clearly define what is required of a defendant

to legally mount a challenge to jurisdiction at the

outset. E.g. Marten v. Godwin, 499 F.3d 290, 295-296

(3rd. Cir. 2007) (“If an issue is raised as to whether a

court lacks personal jurisdiction over a defendant,

the plaintiff bears the burden of showing that personal jurisdiction exists”) (Emphasis Added); Metcalfe

Kyko asserts that this issue should qualify for en banc review under Fed. R. App. P. 35 and L.A.R. 35.1 given the Panel’s

decision could significantly modify the standard of review applicable to Fed. R. Civ. P. 12(b)(2) motions and otherwise affirmatively place an obligation upon defendants to legally (as opposed

to merely factually) support their motions at the outset. However,

because this Panel has not yet addressed this issue, Kyko, consistent with I.O.P. 9.5.1., defers to this Panel’s determination regarding whether en banc review of this issue is warranted.

App. 56

v. Renaissance Marine Inc., 566 F.3d 324, 331 (3rd Cir.

2009) (“[T]he burden of demonstrating the facts that

[4] establish personal jurisdiction,” falls on the plaintiff, and once a defendant has raised a jurisdictional

defense,” the plaintiff must ‘prov[e] by affidavits or

other competent evidence that jurisdiction is proper.’ ”)

(Citations Omitted) (Emphasis Added); Grand Entertainment Group Ltd. v. Star Media Sales Inc., 988 F.2d

476, 482 (3rd Cir. 1993) (“Once a proper jurisdictional

objection is raised, the plaintiff bears the burden of

proving the facts necessary to establish the minimum

contacts the Constitution requires”) (Emphasis

Added).

In addressing the impact of Bell Atlantic Corp. v.

Twombly, 550 U.S. 544 (2007) on the scope of this

Court’s de novo review under Fed. R. Civ. P. 12(b)(6),

this Court stated: “Few issues in civil procedure jurisprudence are more significant than pleading standards,

which are the key that opens access to courts.” Phillips

v. County of Allegheny, 515 F.3d 224, 230 (3rd Cir.

2008). Similarly, this case presents the Panel with

the opportunity to define the scope of review with respect to a Fed. R. Civ. P. 12(b)(2) motion: Particularly,

whether a defendant, as the moving party, is required

to legally support his Fed. R. Civ. P. 12(b)(2) motion and

advance legal arguments in support of same before a

plaintiff incurs the burden of producing jurisdictional

evidence in response to the motion?

Plaintiffs informed the District Court that they

were prejudiced by Mr. Bhongir’s failure to properly

brief the jurisdictional analysis:

App. 57

Instead of addressing the personal jurisdictional analysis under the rubric applicable

to non-intentional tort and intentional tort

claims on a claim-by-claim and temporal basis, Defendant avoids the analysis [5] altogether and posits a legally impermissible

generic “one size fits all” argument that has

prevented Plaintiffs from having a fair opportunity to respond because they are simply left

to guess how jurisdiction is allegedly lacking

under the applicable legal standards. [App’x

Vol. IV, Pg. 752].

Yet, the District Court failed to deny Mr. Bhongir’s

motion, and otherwise premised her ruling under the

“effects test” without giving Kyko an opportunity to respond. See Huber v. Taylor, 532 F.3d 237, 249 (3rd. Cir.

2008) (holding that a district court must provide a

plaintiff an “opportunity to address the court’s concerns” before dismissing a case for lack of subject matter jurisdiction on a basis not raised by the parties).

Moreover, as explicitly provided in Fletcher-Harlee

Corp. v. Pote Concrete Contractors Inc., 482 F.3d 247,

252 (3rd Cir. 2007), Kyko explicitly requested the District Court to allow Kyko to amend its Complaint as of

right before the District Court dismissed the Complaint but amendment was not permitted. [App’x Vol.

IV, Pg. 775].

The net effect of Mr. Bhongir’s failure to legally

support his Motion, and the District Court’s failure to

allow Kyko to respond to the Court’s application of

the “effects test” prior to dismissal, was that Kyko’s

Complaint was dismissed without Kyko being able to

App. 58

respond to how its jurisdictional evidence allegedly

failed to establish a prima facie case of jurisdiction under the “effects test.”2

[6] In essence, by dismissing Kyko’s Complaint under a legal precept Mr. Bhongir failed to pursue, and

otherwise failing to provide Kyko the opportunity to

address the District Court’s jurisdictional concerns

prior to dismissal, the District Court acted outside

the permissible scope of the adversary process. See

McNeil v. Wisconsin, 501 U.S. 171, 181, n. 2 (1991)

(“What makes a system adversarial rather than inquisitorial is . . . the presence of a judge who does not

(as an inquisitor does) conduct the factual and legal investigation himself, but instead decides on the basis of

facts and arguments pro and con adduced by the parties”(Emphasis Added)); United States. v. Bendolph,

409. F.3d 155, 172 (3rd Cir. 2005) (Nygaard, J. concurring in part, dissenting in part) (“Typically, it is not fair

for courts to act as surrogate counsel for one side but

Anticipating that Mr. Bhongir may attempt to raise and

brief the “effects test” for the first time in his Reply Brief (which

he ultimately chose not to do), Kyko discussed the “effects test” in

its Opposition in order to preserve the issue for appeal. Nevertheless, Kyko was not required to litigate in the dark because Mr.

Bhongir, as the moving party, was required to specifically set

forth the legal basis for his Motion. See Fed. R. Civ. P. 7(b)(1)(B)

(a motion “must . . . state with particularity the grounds for seeking the order”) (Emphasis Added); Andreas v. Volkswagen of

America Inc., 336 F.3d 789, 793 (8th Cir. 2003) (“The purpose of

Rule 7’s particularity requirement is to give notice of the basis

for the motion to the court and the opposing party so as to avoid

prejudice, ‘providing that party with a meaningful opportunity to

respond and the court with enough information to process the motion correctly.’ ”) (Citation Omitted) (Emphasis Added).

App. 59

not the other”); United States v. Pryce, 938 F.2d 1343,

1353 (D.C. Cir. 1991) (Silberman, J., dissenting in part)

(“We thus ordinarily have no right to consider issues

not raised by a party in either briefing or argument,

both because our system assumes and depends upon

the assistance of counsel . . . and because of the unfairness of such a practice to the other party”)

[7] In conclusion, this Panel should affirmatively

hold that, under Fed. R. Civ. P. 12(b)(2), a defendant is

required to legally support his Fed. R. Civ. P. 12(b)(2)

motion at the outset; if the defendant fails to do so,

then the burden does not shift to a plaintiff to produce

jurisdictional evidence which requires the defendant’s

motion to be denied.

The District Court’s dismissal order should be reversed.

Point 2: This Panel Misapprehended Walden When

It Found Personal Jurisdiction Lacking.

This Panel, relying upon Walden v. Fiore, 571 U.S.

277, 286) (2014), stated:

Kyko’s jurisdictional evidence is limited to

several calls and emails exchanged between

Bhongir and another Prithvi board member

who was based in Pittsburgh. The mere fact

that Bhongir communicated with a board

member in Pittsburgh is not, standing alone,

sufficient to show that he specifically aimed

any allegedly fraudulent conduct at Pennsylvania. Walden v. Fiore, 571 U.S. 277, 286

App. 60

(2014) (“[A] defendant’s contacts with the forum State may be intertwined with his transactions or interactions with the plaintiff or

other parties. But a defendant’s relationship

with a plaintiff or third party, standing alone,

is an insufficient basis for jurisdiction. (Op. pg.

6).

Mr. Bhongir was a Director of Prithvi Information

Solutions Ltd. (“PISL”) which is registered to do business in Pittsburgh. [Appellant Brf. Pg. 3].3 42 Pa. [8]

C.S.A. § 5322(a)(7)(iv) permits a court to exercise personal jurisdiction over a person for “[a]ccepting election or appointment or exercising powers under the

authority of this Commonwealth as a. . . . Director or

officer of a corporation.” [Appellant Brf. Pg. 26]. See

Irons v. Steinberg, 22 Pa. D.&C.3d 36, 37 (1981) (“It is

clear that by its terms, Section 5322(a)(7)(iv) purports

to give the Pennsylvania courts personal jurisdiction

over all directors of all Pennsylvania corporations with

respect to causes of action arising from their directorships”); Eurofins Pharma US Holdings v. Bioalliance

Pharma SA, 623 F.3d 147, 155 (3rd Cir. 2010) (“[A] federal district court may assert personal jurisdiction

over a nonresident of the state in which the court sits

to the extent authorized by the law of that state.”).

Kyko asserts that Mr. Bhongir is personally liable

for the torts he committed in his capacity as a PISL

Director. [App’x Vol. II, Pgs. 28-37]. The torts he

Although PISL is a foreign corporation, it is governed under

the laws of Pennsylvania the same as if it were a domestic corporation. See 15 Pa. C.S.A. § 402(d).

App. 61

committed were done to induce lenders, such as Kyko,

to lend money to PISL in Pittsburgh. [App’x Vol. I, Pgs.

21-22]. The District Court found that some of Kyko’s

evidence “may be interpreted as implicating [Mr.

Bhongir] in Prithvi’s fraud generally.” [App’x. Vol I, Pg.

24].

To effectuate the fraud, the evidence demonstrated that Mr. Bhongir contacted his fellow Directors

and Board Members in Pittsburgh via telephone and

emails. [Appellant Brf. Pgs. 25-27]; [Appellant Reply

Brf. Pgs. 7-10]; [App’x Vol. IV, Pgs. 752-756]. See Carrabba v. Morgat, 2014 WL 229280, Case No. 2:12- 6342,

at *4 (D.N.J. Jan. 17, 2014) (Citing Grand Entertainment Group, Ltd. v. Star [9] Media Sales, Inc., 988 F.2d

476, 482 (3rd Cir.1993) and O’Connor v. Sandy Lane

Hotel Co., Ltd., 496 F.3d 312, 318 (3rd Cir. 2007) and

related cases for the proposition that “[v]arious forms

of communications between parties, including written

correspondence, telephone calls, and emails factor into

the minimum contacts analysis.”).

Notwithstanding the foregoing, the Panel found

that jurisdiction was lacking under Walden on the basis that Kyko attempted to assert personal jurisdiction

based on Mr. Bhongir’s mere association with individuals. This is incorrect.

Personal jurisdiction exists because Mr. Bhongir, a

PISL Director, purposefully directed his phone calls

and emails to his fellow PISL Directors/Board Members in Pittsburgh to doctor the books of PISL to induce

lenders, such as Kyko, to lend money to PISL in

App. 62

Pittsburgh. Had Mr. Bhongir engaged in this exact

same conduct by being physically present in PISL’s office in Pittsburgh, nobody would question whether personal jurisdiction exists; there is no legal distinction

made under Walden just because Mr. Bhongir engaged

in this conduct via telephone calls and emails. See Walden 571 U.S. at 285 (“And although physical presence

in the forum is not a prerequisite to jurisdiction . . .

physical entry into the State—either by the defendant

in person or through an agent, goods, mail, or some

other means—is certainly a relevant contact”).

Stated another way, personal jurisdiction exists

over Mr. Bhongir given his role as a Director of

PISL as expressly permitted under 42 Pa. C.S.A.

§ [10]5322(a)(7)(iv) and his email and telephone contacts that he directed to Pittsburgh to fraudulently induce Kyko to lend money to PISL in Pittsburgh. See

Walden 571 U.S. at 284 (“the relationship [with the forum] must arise out of contacts that the defendant

himself creates with the forum State) (Emphasis Included)). Accordingly, Mr. Bhongir expressly aimed his

conduct to Pittsburgh under the Calder “effects test”

and Kyko’s claims asserted against Mr. Bhongir arise

out of his conduct directed to Pittsburgh.

In conclusion, to the extent that this Panel finds

that Mr. Bhongir’s Fed. R. Civ. P. 12(b)(2) motion should

not be denied for failure to legally support the motion,

personal jurisdiction nevertheless exists.4

While Mr. Bhongir denies engaging in this conduct or directing his phone calls and emails to Pittsburgh, his denials are

App. 63

Point 3: Kyko Was Improperly Denied Access to

Evidence.

Mr. Bhongir’s discovery responses and declaration

establish the following: (i) the only way for Mr. Bhongir

to have conducted his duties for PISL in Pittsburgh

would have been by telephone, email, fax, written correspondence and the like; (ii) Mr. Bhongir is incapable

of determining whether he directed his communications to individuals located in Pittsburgh; (iii) Mr.

Bhongir claims he [11] does not have “any” knowledge

of PISL’s accounts receivable. [Appellant Brf. Pgs. 1115]; [Appellant Reply Brf. Pgs. 4-5]. Accordingly, this

case presents the Panel with the opportunity to define

the scope of discovery under Fed. R. Civ. P. 26(b)(1)

when a party asserts ignorance of the substantive

documents in his possession yet withholds the same

documents on the purported basis that they are irrelevant.5

Under this Panel’s current Opinion, a party is permitted to withhold documents on the purported basis

that they are irrelevant even though the party does not

irrelevant for purposes of this appeal. Miller Yacht Sales Inc. v.

Smith, 384 F.3d 93, 97 (3rd Cir. 2004) (“[W]hen the court does not

hold an evidentiary hearing on the motion to dismiss [for lack of

personal jurisdiction], the plaintiff need only establish a prima

facie case of personal jurisdiction and the plaintiff is entitled to

have its allegations taken as true and all factual disputes drawn

in its favor”) (Emphasis Added).

Mr. Bhongir has engaged in this conduct to try to preclude

Kyko from challenging his narrative that his contacts were with

India, not Pittsburgh. [Appellant Reply Brf. Pg. 5].

App. 64

know whether the documents are relevant. Kyko asserts that this is not what this Panel intended.

The District Court, and this Panel, opined that

Kyko’s discovery requests were overly broad. [Op. Pg.

8]. However, understandably, neither the District

Court nor this Panel discuss how Kyko could have narrowed its discovery requests because it is not possible

to do what Mr. Bhongir himself claims he cannot do:

specify the jurisdictional documents in his possession.

Thus, while at first glance it appears that requests for

documentation pertaining to Mr. Bhongir’s board

membership and board meetings are beyond the scope

of jurisdiction, there was simply no other way to have

narrowed the requests because within the requested

[12] documents jurisdictional information may exist;

nor was there another way to challenge Mr. Bhongir’s

claimed ignorance of jurisdictional information.

Accordingly, after Mr. Bhongir blindly withheld

documentation, Kyko requested that the documents be

produced, or in the alternative, to have Mr. Bhongir

produce a log of all documents that he withheld. [Appellant Brf. Pgs. 14- 15]. Although the District Court

denied Kyko’s motion to compel on the basis that the

request was overly broad, for reasons unknown, the

District Court also refused to order Mr. Bhongir to produce the requested log – this would have allowed Kyko

to assess the documentation being withheld and alleviated any concern that documents beyond jurisdiction

would be produced. There is simply no reason why the

District Court should have not ordered that a log be

produced. Moreover, there was simply no other way to

App. 65

try to discover the documentation that was being unilaterally withheld. See Sanchez v. U.S. Airways, Inc.,

202 F.R.D. 131, 135 (E.D. Pa. 2001) (“It is not for a party

to determine, by a unilateral review of documentation,

whether information is relevant to the case.”)

Fed. R. Civ. P. 26(b)(1) states that the scope of discovery is determined by, among other things, “the parties’ relative access to relevant information.” Kyko

asserts that where, as here, a party claims that he does

not know whether he has jurisdictional documents in

his possession yet seeks to withhold documentation,

the scope of discovery necessary includes all documentation that relates to his role at a corporation and that

the requesting party is entitled to, at a minimum, receive a [13] log of all withheld documents. Otherwise,

a party who exclusively holds the documentation, such

as Mr. Bhongir, can artificially cutoff the jurisdictional

inquiry (and cross-examination) by simply claiming ignorance thereby allowing the Complaint to be dismissed for lack of jurisdictional evidence.6

In conclusion, to the extent this Panel finds that

Kyko’s evidence currently fails to establish personal

jurisdiction, this Panel should order that the withheld

documents be produced, or alternatively a log generated, and remand this case to the District Court to

allow the jurisdictional discovery process to be completed. See Lehman Bros. Holdings Inc. v. Gateway

Mr. Bhongir also refused to produce various documents

as part of his jurisdictional discovery deposition. [Appellant Brf.

Pg. 29]; [App’x Vol. IV, Pg. 761].

App. 66

Funding Diversified Mortg. Servs. L.P. 785 F.3d 96, 102

(3rd Cir. 2015) (“We will not interfere with the discretion of the district court by overturning a discovery

order absent a demonstration that the court’s action

made it impossible to obtain crucial evidence, and implicit in such a showing is proof that more diligent

discovery was impossible.”).7

Point 4: Kyko Should Not Be Ordered to Pay Attorneys’ Fees.

As set forth above, Kyko’s motion to compel documents/production of a log should have been granted.

However, even if this Panel disagrees, Kyko’s motion

was substantially justified under Fed. R. Civ. P.

37(a)(5)(B) making an attorney fee [14] award unjust

given the circumstances of this case. [Appellant Brf.

Pgs. 15-18]; [App’x Vol. III, Pgs. 479-518].8

Regardless, the attorney fee award is improper as

set forth below [Appellant Brf. Pgs. 17-18]:

(1) The District Court failed to provide any explanation for the attorney fee award. [App’x Vol. I, Pg.

Kyko explicitly informed the District Court that it was “impossible” for Kyko to complete discovery of Mr. Bhongir’s contacts

with Pittsburgh without production of these documents. [App’x

Vol. II, Pg. 246].

Mr. Bhongir refused to respond to Kyko’s Motion: “Defendant is not going to engage in this unnecessary discussion simply

to incur more fees than are subject to the motion – which is presumably the goal of Plaintiffs here.” [Appellant Reply Brf. Pg. 6

n. 6].

App. 67

27, n. 15]. See Hensley v. Eckerhart, 461 U.S. 424, 437

(1983) (holding that while a district court has discretion in determining the amount of an attorney fee

award, “[i]t remains important, however, for the district court to provide a concise but clear explanation

of its reasons for the fee award”); Public Interest Research Group of New Jersey Inc. v. Windall, 51 F.3d

1179, 1189 (3rd Cir. 1995) (“Hensley, . . . directs district

courts to consider a party’s objections to particular

time charges and make their findings on the hours that

should be included in calculating the lodestar”).

(2) Mr. Bhongir’s counsel failed to provide any

evidence that demonstrates that the attorney fees

charged are reasonable given her skills, experience,

and are reasonable relative to the prevailing hourly

rates charged in Pittsburgh. [App’x Vol. III, Pgs. 490491]. See Evans v. Port Authority of New York and New

Jersey, 273 F.3d 346, 361 (3rd Cir. 2001) (“A District

Court may not set attorney’s fees based [15] on a generalized sense of what is usual and proper but ‘must

rely upon the record’ ”) (Citation Omitted); Washington

v. Philadelphia County Court of Common Pleas, 89 F.3d

1031, 1035 (3rd Cir. 1996) (“The general rule is that a

reasonable hourly rate is calculated according to the

prevailing market rates in the community . . . The prevailing party bears the burden of establishing by way

of satisfactory evidence, ‘in addition to [the] attorney’s

own affidavits,’ . . . that the requested hourly rates

meet this standard”).

App. 68

(3) The District Court ordered Kyko to pay for

“copy and paste” work that Mr. Bhongir submitted in a

previous unrelated motion in this case. [App’x Vol. III,

Pg. 492]. See Mosaid Techs Inc. v. Samsung Elecs. Co.,

224 F.R.D. 595, 597 (D. N.J. 2004) (“The court should

exclude hours that are not ‘reasonably expended’ by

virtue of excessiveness, redundancy, or lack of necessity”).

(4) The District Court ordered Kyko to pay for

time Mr. Bhongir’s counsel spent briefing an issue in

Kyko Global Inc. et al v. Prithvi Information Solutions

Limited et al. Case No. 2:13-CV-1034 MJP filed in the

U.S. District Court for the Western District of Washington that is unrelated to the jurisdictional discovery

issues in this case. [App’x Vol. III, Pg. 492]. See Mosaid

224 F.R.D. at 597.

(5) Kyko’s motion was successful, in part, because

Kyko’s request to extend the jurisdictional discovery

period was granted (and opposed by Mr. Bhongir)

which permitted the District Court to apportion fees

pursuant to Fed. R. Civ. P. 37(a)(5)(C). [App’x Vol. III,

Pg. 490].

[16] In conclusion, an attorney fee award was improper regardless of whether this Panel finds that

Kyko’s motion to compel documents/production of a log

was properly denied and was otherwise not substantially justified under Fed. R. Civ. P. 37(a)(5)(B).

App. 69

III.

Conclusion

For the reasons set forth above, the Petition for

Rehearing should be granted.

Dated: April 13, 2020

Respectfully submitted,

/s/ Joseph F. Rodkey, Jr.

Joseph F. Rodkey, Jr. Esq.

PA.I.D. No. 66757

Fowkes Rodkey

732 Allegheny River Boulevard

Oakmont, PA 15139

412-828-2802

jrodkey@fowkesrodkey.com

Jayson M. Macyda, Esq.

MI Bar No. P64733

Kyko Global Inc. and

Kyko Global GmbH

P.O. Box 87491

Canton, MI 48187

248-243-6685

[17] CERTIFICATE OF BAR MEMBERSHIP

The undersigned hereby certifies that pursuant to

L.A.R. 46.1 that the attorneys for Appellants, Jayson

M. Macyda and Joseph F. Rodkey, Jr., whose names appear on the Brief are duly admitted to the Bar of the

United States Court of Appeals for the Third Circuit

App. 70

and presently are members in good standing at the

Bar of said Court.

Dated: April 13, 2020

/s/ Joseph F. Rodkey, Jr.

Joseph F. Rodkey, Jr.

VIRUS SCAN CERTIFICATE

The undersigned hereby certifies that PDF file

of this Brief was automatically scanned during preparation by Norton Security software program version

22.20.1.69, and no viruses were detected.

Dated: April 13, 2020

/s/ Joseph F. Rodkey, Jr.

Joseph F. Rodkey, Jr.

CERTIFICATE OF COMPLIANCE

The undersigned hereby certifies that this Brief

complies with the type-volume limitation of Fed. R.

App. P. 35(b)(2) and Fed. R. App. P. 40(b)(1) because

the Brief contains 3875 words excluding the parts of

the Brief exempted by Fed. R. [18] App. P. 32(f ). This

Brief complies with the typeface requirements of Fed.

R. App. P. 32(a)(5) and the type style requirements of

Fed. R. App. P. 32(a)(6) because this Brief has been prepared in proportionally spaced typeface using Microsoft Word Office Professional (2007) in font 14,

Times New Roman.

Dated: April 13, 2020

/s/ Joseph F. Rodkey, Jr.

Joseph F. Rodkey, Jr.

App. 71

CERTIFICATE OF SERVICE

The undersigned hereby certifies that Appellants’

Petition For Reconsideration was served via electronic

filing on the ECF System, this 13th day of April, 2020

upon the following:

Laura A. Lange, Esq.

1670 Sturbridge Drive

Sewickley, PA 15143

lange@proctortrust.com

lauralange@protonmail.com

Counsel for Appellee

Dated: April 13, 2020

/s/ Joseph F. Rodkey, Jr.

Joseph F. Rodkey, Jr.

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