Hasson v. FullStory, Inc., 2024 U.S. App. LEXIS 22552 (Pa. Super. U.S. Ct. of App., 3d Cir., September 5, 2024) (Hardiman, J.)
OPINION OF THE COURT
HARDIMAN, Circuit Judge.
These appeals come to us from the District Courts’ orders dismissing two class actions for lack of personal jurisdiction. In the first case, Kenneth Hasson sued FullStory, Inc., claiming that the company unlawfully wiretapped him when it deployed a script of computer code—known as Session Replay Code—to intercept his online communications. In the second case, Jordan Schnur sued Papa John’s International, Inc. for its use of FullStory’s Session Replay Code.
The question presented in both cases is whether the deployment of Session Replay Code in Pennsylvania makes FullStory and Papa Johns amenable to jurisdiction there. The parties agree that the claims implicate only specific, not general, jurisdiction. See O’Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 317 (3d Cir. 2007) (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-15, 104 S. Ct. 1868, 80 L. Ed. 2d 404 & n.9 (1984)).
Papa Johns moved to dismiss for lack of personal jurisdiction. The District Court granted the motion, finding that because Papa Johns’ website was “generally available to everyone, no matter where they are located,” Schnur failed to allege that the company expressly aimed Session Replay Code at Pennsylvania. Schnur v. Papa John’s Int’l, Inc., 2023 U.S. Dist. LEXIS 150947, 2023 WL 5529775, at (W.D. Pa. Aug. 28, 2023). The District Court also held that Schnur’s complaint failed to establish specific personal jurisdiction under the “traditional” test because Schnur’s wiretapping claims did not arise out of or relate to Papa Johns’ marketing and sale of pizza in Pennsylvania.
So Papa Johns did not expressly aim its Session Replay Code at Pennsylvania by operating a website that was accessible in the forum.
At a minimum, Schnur had to allege that Papa Johns knew that a given user was in Pennsylvania before it sent the code to that user’s browser.
Simply stated, Papa Johns’ other in-forum commercial activities—operating restaurants and selling pizza—do not show that it expressly aimed Session Replay Code at Pennsylvania.
the District Court did not err when it held that Schnur failed to plead facts sufficient to render Papa Johns amenable to personal jurisdiction in Pennsylvania under the Calder “effects” test.
Because we conclude that Schnur failed to satisfy Calder’s “express aiming” prong, we need not address whether Schnur adequately pled that he suffered the brunt of the alleged harm in Pennsylvania. See Marten, 499 F.3d at 297.
To be sure, whether Schnur’s claims “arise out of or relate to” Papa Johns’ activities in Pennsylvania is a close call. Ford Motor, 592 U.S. at 359 (citation omitted). As the Supreme Court recently clarified, while “[t]he first half of that standard asks about causation . . . the back half . . . contemplates that some relationships will support jurisdiction without a causal showing.” Id. at 362. And “[t]he degree of relatedness required in a given case is inversely proportional to the overall intensity of the defendant’s forum contacts.” O’Connor, 496 F.3d at 320 (cleaned up). At first glance, this would seem to tip the jurisdictional scales in Schnur’s favor given Papa Johns’ considerable contacts in Pennsylvania. But when we scrutinize those contacts in the context of Schnur’s wiretapping claims, we conclude that the “connection is too weak.” Hepp, 14 F.4th at 208.
Our dissenting colleague suggests that our holding hinges on the fact that Papa Johns has not advertised its website in Pennsylvania “to the same extent” that Ford advertised its vehicles in the forum states. Dissent 4. Not so. We simply note an important distinction between the two cases. While Ford Motor held that Ford’s extensive promotion of the harm-causing vehicles in the fora strengthened the connection among the defendant, the fora, and the litigation, Schnur does not allege that Papa Johns promoted its website in Pennsylvania.
We turn next to the District Court’s order dismissing Hasson’s claims against FullStory and its order denying Hasson’s motion for jurisdictional discovery. We begin by noting that FullStory has fewer contacts with Pennsylvania than Papa Johns. FullStory is a Georgia software company with no Pennsylvania offices or employees. FullStory did, however, produce the Session Replay Code that allegedly wiretapped Hasson in Pennsylvania and received the data collected from his browsing session.
Starting with the Calder test, we agree with the District Court that FullStory did not expressly aim its allegedly tortious conduct at Pennsylvania. Hasson did not allege that Mattress Firm “intentionally targets [its] site to” Pennsylvania with forum-centric themes or ads. Toys, 318 F.3d at 452. And even had he done so, Hasson did not allege that FullStory knew about—or helped produce—any such forum-centric content. Indeed, if a retailer does not expressly target Pennsylvania merely by operating a website that is accessible there, neither does a software company simply by providing code for that website. Cf. Carefirst, 334 F.3d at 402 (no specific jurisdiction over Illinois company in Maryland “merely” because the company “utiliz[ed] servers owned by a Maryland-based company”). In short, FullStory did not expressly aim at Pennsylvania simply by providing code and other services to a Texas company whose website is accessible in the forum.
We agree with the District Court that Hasson’s complaint fails to establish that FullStory expressly aimed its alleged wiretapping at Pennsylvania. So we need not address whether the complaint satisfies Calder’s other prongs. See Marten, 499 F.3d at 297.
The District Court applied the Calder framework because Hasson alleged intentional torts. See Hasson, 2023 U.S. Dist. LEXIS 127761, 2023 WL 4745961, at *2. HN17 But as Hasson persuasively argues, the “effects” test typically applies where the allegedly tortious conduct occurs outside the forum but is felt inside the forum. Here, by contrast, FullStory’s Session Replay Code allegedly wiretapped Hasson in Pennsylvania. Though we agree with its application of Calder, the District Court also should have considered whether specific personal jurisdiction was proper under the traditional test as applied in Ford Motor.
For the foregoing reasons, we will affirm the District Court’s order dismissing the case for lack of personal jurisdiction in Schnur v. Papa John’s Int’l, Inc., Appeal No. 23-2573. But we will vacate the order dismissing the case for lack of personal jurisdiction in Hasson v. FullStory, Inc., Appeal No. 23-2535, and remand for the District Court to apply the traditional test in accordance with Ford Motor.
Phipps, Circuit Judge, concurring in part and dissenting in part.
