                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-5-2008

Kloth v. So Christian Univ
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4598




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                 Nos. 07-3376 & 07-4598
                                      ___________

                                    JOAN T. KLOTH,
                                                 Appellant

                                            v.

                       SOUTHERN CHRISTIAN UNIVERSITY;
                             BOARD OF DIRECTORS
                      ____________________________________

                     On Appeal from the United States District Court
                               for the District of Delaware
                             (D.C. Civil No. 06-cv-00244)
                      District Judge: Honorable Sue L. Robinson
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    July 16, 2008

             Before: SLOVITER, BARRY and NYGAARD, Circuit Judges

                                 (filed: August 5, 2008 )
                                        _________

                                         OPINION
                                        _________

PER CURIAM

       Pro se litigant Joan T. Kloth appeals from the dismissal of her complaint for lack

of personal jurisdiction and the denial of her motion for reconsideration by the United

States District Court for the District of Delaware. We agree with the District Court that
Kloth did not allege facts sufficient to establish personal jurisdiction over Defendants.

We will affirm.

                                             I.

       Sometime between April 2000 and September 2001, while domiciled in

Connecticut, Kloth learned about Southern Christian University’s (“SCU”) distance

learning program for obtaining a dual masters degree in Marriage and Family Therapy

and Professional Counseling. SCU, a higher education university whose main campus is

in Montgomery, Alabama, operates a “distance learning program” in which students

complete all of the course work for the program online. The program also requires

completion of a certain number of clinical hours to obtain their final degree.

       Kloth contacted SCU’s Graduate Advisor for the School of Human Services who

advised her that she could complete her Masters degree in two years and one course if she

attended full-time, taking three to four courses per semester. Kloth specifically inquired

about SCU’s pending Commission on Accreditation for Marriage and Family Therapy

Education (“COAMFTE”) and whether her non-Christian affiliation was an issue and was

assured by email that the school was accredited and, by the time of her graduation, would

be COAMFTE certified. She was also assured that her religious affiliation would not be

an issue.

       In January 2002, Kloth enrolled in the program and began taking courses from her

home in Connecticut, communicating with SCU’s administrators and professors by phone



                                              2
and email. From January 2002 through February 2005, Kloth took 15 online classes.

During the spring of 2003, Kloth began searching for a training site where she could

fulfill the clinical hours she needed to complete her degree. SCU did not assist Kloth in

this process, advising her that it was the student’s sole responsibility to find a clinical site.

Although she found many sites, none would accept her—apparently because of the

distance learning aspect of her program and because of the school’s unwillingness to

communicate with the training sites.

        In early 2003, Kloth informed her classmates and her professors about her Jewish

faith. As a result, she began experiencing problems with two Christian students and with

two professors who Kloth felt were disrespecting her.

        In or about February 2005, Kloth moved to Delaware to continue searching for a

clinical training site as part of her required course work. Despite her repeated attempts

and large number of inquiries, Kloth was unsuccessful in finding a clinical placement.

She took two more classes online through the SCU distance learning program, but

ultimately discontinued her studies at SCU, in or about August 2005.

       Kloth brought suit against SCU and its Board of Directors (collectively

“Defendants”) in the District of Delaware. She alleges that Defendants breached an

implied contract to provide her with a complete education. She also alleges discrimination

on the basis of religion, presumably in violation of Title VII of the Federal Civil Rights

Act of 1964.



                                               3
       The District Court granted Defendants’ motion to dismiss for lack of personal

jurisdiction. This appeal followed.

                                               II.

       We exercise jurisdiction pursuant to 28 U.S.C. § 1291, engaging in plenary review

of the District Court’s personal jurisdiction determination. See Yarris v. County of Del.,

465 F.3d 129, 134 (3d Cir. 2006); IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 258 (3d

Cir. 1998). We review the District Court’s denial of reconsideration for abuse of

discretion. See Alston v. Parker, 363 F.3d 229, 233 (3d Cir. 2004).

                                              III.

       For a court to exercise personal jurisdiction over a defendant, that defendant must

have sufficient “minimum contacts” with the forum state, such that subjecting the

defendant to the court’s jurisdiction “comports with traditional notions of fair play and

substantial justice.” See Toys ‘R’ Us, Inc. v. Step Two, S.A., 318 F.3d 446, 451 (3d Cir.

2003) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985); Int’l Shoe Co.

v. Wash., 326 U.S. 310, 316 (1945)). When a defendant moves to dismiss for lack of

personal jurisdiction, the plaintiff must establish at least a prima facie case for personal

jurisdiction, with all of plaintiff’s allegations taken as true and all factual disputes resolved

in her favor. See Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 97 (3d Cir. 2004).

       A two-prong analysis is applied to determine whether a plaintiff has carried her

burden. First, the court considers whether service was authorized by statute, in this case



                                                4
under Delaware’s long-arm statute, 10 Del. C. § 3104.1 IMO Indus., 155 F.3d at 258-59.

If the state statutory requirements are met, the court determines whether exercise of

jurisdiction over the nonresident defendant satisfies due process by considering whether

sufficient minimum contacts have occurred between the forum state and the defendant. Id.

at 259.

          Delaware’s long-arm statute permits the exercise of personal jurisdiction over a

nonresident who, either in person or through an agent:

          (1) Transacts any business or performs any character of work or service in the State;
          (2) Contracts to supply services or things in this State;
          ***
          (4) Causes tortious injury in the State or outside of the State by an act or omission
          outside the State if the person regularly does or solicits business, engages in any
          other persistent course of conduct in the State or derives substantial revenue from
          services, or things used or consumed in the State; . . . .

10 Del. C. § 3104(c). Delaware courts interpret §§ 3104(c)(1), (c)(2), as specific

jurisdiction sections, requiring that some action by the defendant occur within Delaware.

See LaNuova, 513 A.2d at 768; Outokumpu Eng’g Enters., Inc. v. Kvaerner EnviroPower,

Inc., 685 A.2d 724, 729 (Del. 1996). Section 3104(c)(4) is interpreted as a general

jurisdiction provision, meaning the defendant’s contacts with the forum state may be

unrelated to the alleged injury. See LaNuova, 513 A.2d at 768.


    1
    The Federal Rules of Civil Procedure provide that “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.” Provident Nat’l Bank v. Cal. Fed. Sav. & Loan
Ass’n, 819 F.2d 434, 437 (3d Cir. 1987). The Delaware long-arm statute, 10 Del. C. §
3104(c), confers jurisdiction to the maximum extent possible under the due process
clause. See LaNuova D&B S.p.A. v. Bowe Co., 513 A.2d 764, 768 (Del. 1986).

                                                5
        Kloth claims that Defendants satisfy sections (1), (2) and (4).2 Kloth does not

dispute that Defendants’ contacts with Delaware consist of Defendants’ Web site which is

accessible nationwide, Kloth’s temporary residence in Delaware during a portion of her

studies, and one other SCU student’s residence. The issue is whether these contacts are

sufficient to satisfy Delaware’s long-arm statute.

A. Specific Jurisdiction

        “Specific jurisdiction exists when the claim arises from or relates to conduct

purposely directed at the forum state.” Marten v. Godwin, 499 F.3d 290, 296 (3d Cir.

2007) (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-15 &

n.8 (1984)). Here, the District Court properly considered whether SCU’s Web site was

specifically designed to interact with residents of Delaware and concluded that Appellants

had not “purposefully availed” themselves of doing business with Delaware citizens.

(App. at A-19-20 (citing Toys “R” Us, 318 F.3d at 452).)

        Kloth argues that the District Court erred in its interpretation of Zippo

Manufacturing. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1125-28 (W.D. Pa. 1997),

one of the seminal authorities regarding personal jurisdiction based upon the operation of



    2
    Specifically, she claims that Defendants transact business and perform services when
they deliver their educational product to students residing in Delaware. Defendants
accept student papers and tests, grade them and return them to students via the Internet.
She claims Defendants satisfy (2) because they breached the implied contract that they
had entered with her for the provision of educational services and degree award. Finally,
Kloth argues that (4) is satisfied because Defendants delivered educational services to her
in Delaware, and were aware of her residence there.

                                               6
an Internet Web site. See Toys “R” Us, 318 F.3d at 452. The court in Zippo stressed that

whether jurisdiction is proper “depends on where on a sliding scale of commercial

interactivity the web site falls.” Id. Where a defendant is “clearly doing business through

its web site in the forum state, and where the claim relates to or arises out of use of the

web site, the Zippo court held that personal jurisdiction exists.” Id. (citing Zippo, 952 F.

Supp. at 1124). To make this determination, the Zippo court focused on whether the

interactivity of a commercial Web site reflects “purposeful availment” or intended

interaction with residents of the forum state. See id. (citation omitted). Purposeful

availment is demonstrated when a defendant “(1) directs electronic activity into the State,

(2) with the manifested intent of engaging in business or other interactions within the

State, and (3) that activity creates, in a person within the State, a potential cause of action

cognizable in the State’s courts.” Toys “R” Us, 318 F.3d at 453 (citation omitted).

       Kloth claims that SCU’s Web site satisfies the test in Zippo because it is

“interactive.” Specifically, she argues that SCU’s use of a proprietary software dubbed

“Blackboard” facilitated the correspondence between Kloth, her professors and her

classmates. However, to demonstrate a prima facie case for the exercise of personal

jurisdiction, Kloth must show more than mere interactivity; she must also show that, by

using software that facilitates distance learning, SCU intended to engage in business with

student citizens of Delaware—the forum state.

       Kloth’s reliance on Zippo is unavailing. The defendant in Zippo sold passwords to



                                               7
approximately 3,000 subscribers in Pennsylvania and entered into seven contracts with

Internet access providers to furnish its services to customers in Pennsylvania. By contrast,

here there is no evidence that SCU targeted its Web site to potential students in Delaware,

nor that the school engaged in business with any one in Delaware other than Kloth and one

other student. The existence of Blackboard demonstrates only that SCU intends to allow

its students to attend classes and communicate with their classmates and professors when

they are not at SCU’s physical campus.

       As the District Court observed, although SCU certainly could have foreseen that

students from Delaware, or any other state, might choose to participate in their distance

learning program because the Web site is accessible to a nationwide (indeed, global)

audience, this foreseeability alone cannot satisfy the purposeful availment requirement.

See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295 (1980) (noting that

“foreseeability” alone has never been a sufficient benchmark for personal jurisdiction

under the Due Process Clause). Thus, Kloth has failed to demonstrate a prima facie case

for the exercise of personal jurisdiction based on Delaware’s long-arm statute, §

3104(c)(1).

       Subsection (c)(2) allows a court to exercise specific jurisdiction over defendants if

they contracted to provide services or things in Delaware. However, as previously noted,

there is no evidence that SCU intended to provide educational services specific to

Delaware citizens. See Mendelson v. Del. River & Bay Auth., 56 F. Supp. 2d 436, 438-49



                                              8
(D. Del. 1999) (finding specific jurisdiction where company contracted to provide a

custom-made set of fire doors designed specifically for a Delaware ferry). In Mendelson,

the court found that the defendant “did not simply contract to supply a generic or fungible

set of mass-produced doors which could fit into any frame in any wall in any ship or

building in the nation,” but instead knew “that the doors were going to be installed in a

vessel that was going to not only be moored or anchored in the State but also transport cars

and passengers within Delaware territorial waters.” Id. Here, even assuming SCU knew

Kloth had temporarily moved to Delaware during her studies, Kloth has not proffered

evidence that SCU purposely targeted the contents of their Web site or other distance

learning materials toward Delaware citizens. Indeed, she does not dispute that she

initiated her enrollment in SCU while domiciled in Connecticut, and only moved to

Delaware on a temporary basis several years later.3 Indeed, SCU’s records show Kloth’s

address to be Connecticut during her entire enrollment. Apparently, Kloth never changed

her records to reflect her move to Delaware.

          Because Kloth has not met her prima facie burden, the District Court properly

dismissed her claim for lack of personal jurisdiction pursuant to a specific jurisdiction

theory.

B.        General Jurisdiction

          For substantially the reasons stated by the District Court, we agree that Defendants’


     3
    Kloth did not contest any of the facts put forth by SCU in support of its motion to
dismiss before the District Court, nor does she do so in her brief before this Court.

                                                9
maintenance of a Web site that posts information about the school and is accessible to

potential students in foreign jurisdictions is insufficient to subject a non-resident defendant

to general jurisdiction. See, e.g., Gehling v. St. George’s Sch. of Med., Ltd., 773 F.2d

539, 541-42 (3d Cir. 1985) (holding that St. George’s School of Medicine, a West Indies

institution, did not have a sufficient nexus to Pennsylvania to subject the school to general

jurisdiction, despite the fact that St. George’s advertised in national newspapers that

circulated in Pennsylvania; counted Pennsylvania residents among its student body; sent

school representatives to Philadelphia as part of a “media swing” intended to raise St.

George’s profile; and entered into an agreement with a Pennsylvania college to establish a

joint international program combining pre-medical studies in Pennsylvania with medical

training in Grenada); see also Gallant v. Trs. of Columbia Univ. in City of N.Y., 111 F.

Supp. 2d 638 (E.D. Pa. 2000); Park v. Oxford Univ., 35 F. Supp. 2d 1165 (N.D. Cal.

1997), aff’d, Park v. Oxford Univ., 165 F.3d 917 (9th Cir. 1998); Hardnett v. Duquesne

Univ., 897 F. Supp. 920 (D. Md. 1995); Ross v. Creighton Univ., 740 F. Supp. 1319 (N.D.

Ill. 1990), rev’d in part on other grounds, 957 F.2d 410 (7th Cir. 1992).4

        Because our affirmance is based on a lack of jurisdiction, rather than on the merits,

it is without prejudice to the Appellant’s right to move in the District Court for a transfer

pursuant to 28 U.S.C. § 1406. See Goldlawr, Inc., Heiman, 369 U.S.C. 463 (1962);


    4
    Because Defendants do not have sufficient contacts with Delaware to meet the
requirements of Delaware’s long-arm statute, § 3104(c), we need not proceed to the
second part of the analysis, examining whether the assertion of jurisdiction comports with
the due process guarantees of the Fourteenth Amendment.

                                              10
Schwilm v. Holbrook, 661 F.2d 12 (3d Cir. 1981). Indeed, the District Court’s conclusion

that there is no personal jurisdiction does not preclude its authority to transfer the case for

venue reasons. 28 U.S.C. § 1406(a); see also Lafferty v. St. Riel, 495 F.3d 72, 77 (3d Cir.

2007).

C.       Motion for Reconsideration

         Finally, we conclude that the District Court did not abuse its discretion by denying

Kloth’s motion for reconsideration. United States v. Herrold, 962 F.2d 1131, 1136 (3d

Cir. 1992). The Court’s October 17, 2007 Memorandum Order thoroughly considered

Kloth’s arguments in support of her motion and properly concluded that she had failed to

demonstrate that the new facts alleged constituted “new evidence that was not available”

when the court issued its July 16, 2007 memorandum opinion, that a change in controlling

law occurred, or that any other clear error of law or fact occurred. Max’s Seafood Café ex

rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999) (the purpose of a motion

for reconsideration is to “correct manifest errors of law or fact or to present newly

discovered evidence.”).

         For the foregoing reasons, we will affirm the District Court’s judgment. Kloth’s

motion to file a supplemental brief is granted. Appellees’ motion to strike Kloth’s

supplemental filing is denied. Kloth’s motion to change venue is denied. Kloth’s motions

entitled “Motion to Include the Federal Education, House and Senate Bill Definitions for

Distance Learning related to the Higher Education Act” and “Motion to Include the



                                               11
Distance Education Demonstration Project of 1998,” construed as motions to supplement

or amend her brief, are denied.




                                       12
