                                                     NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 17-2281
                                      _____________

                                   VIVIAN KENNEDY,

                                            Appellant

                                             v.

                                  HELP AT HOME, LLC
                                    _____________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                (D.C. No. 2-16-cv-05291)
                       District Judge: Hon. J. William Ditter, Jr.
                                   _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    April 26, 2018

                Before: JORDAN, BIBAS, and SCIRICA, Circuit Judges

                                  (Filed: April 27, 2018)
                                    _______________

                                        OPINION ∗
                                     _______________




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

       Vivian Kennedy appeals the dismissal of her employment discrimination lawsuit

against her former employer, Help at Home, LLC. Because we agree that the District

Court lacks personal jurisdiction over Help at Home, we will affirm.

I.     BACKGROUND 1

       Kennedy, a resident of Philadelphia, Pennsylvania, filed an employment

discrimination lawsuit in the Eastern District of Pennsylvania against Help at Home, a

Maryland-based company, stemming from her employment as a live-in home care nurse

for a client located in Maryland. 2 Kennedy alleges that she was subjected to gender-



       1
         We write primarily for the parties and thus set forth only the facts necessary to
our analysis. Those facts include information pertinent to Help at Home’s jurisdictional
argument, as set forth in the affidavit of its owner, Terri Rabkin. Except as noted, see n.2
infra, we assume the truth of the allegations in Kennedy’s complaint and resolve all
factual disputes in her favor. O’Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 316 (3d
Cir. 2007); see also Carteret Sav. Bank, FA v. Shushan, 954 F.2d 141, 142 & n.1 (3d Cir.
1992) (reviewing motion to dismiss for lack of personal jurisdiction, and concluding that,
“[b]ecause the district court granted a motion to dismiss, we state the facts as set forth in
the plaintiff’s [complaint]”).
       2
         In her complaint, Kennedy alleges that “Help at Home, LLC is a home care
agency with its Executive Offices located” in Chevy Chase, Maryland. (JA at 7-8.) The
complaint alleges no facts concerning where the alleged incidents of harassment or
workplace discrimination and related injuries occurred. Although the complaint states
that the District Court has personal jurisdiction over the defendant and that venue is
proper because the “[d]efendant is located in and/or regularly conducts business in this
judicial district and because all of the acts and/or omissions giving rise to the claims set
forth herein occurred in this judicial district[,]” (JA at 8-9) those statements are
generalized boilerplate allegations pertaining to Help at Home’s citizenship and
minimum contacts with the forum. Moreover, as discussed herein, Kennedy has not
challenged Help at Home’s representation that it is a Maryland-based company that
conducts no business in Pennsylvania, and she has conceded that “the alleged incidents of
harassment occurred in Maryland[.]” (JA at 39.)

                                              2
based discrimination, a hostile and unsafe working environment, and retaliation in the

form of termination after she complained that a client had sexually harassed her.

       Help at Home filed a motion to dismiss under Federal Rule of Civil Procedure

12(b)(2) for lack of personal jurisdiction and Rule 12(b)(6) for failure to timely exhaust

administrative remedies, which the District Court decided on the parties’ written

submissions. In reviewing the additional jurisdictional facts raised in Help at Home’s

motion to dismiss and supporting affidavit – which Kennedy did not contest – the Court

found that Kennedy was “a Pennsylvania resident [who] went to Maryland to work for a

Maryland employer and was harassed in Maryland by a Maryland resident who was a

client of the employer[.]” (JA at 3.) It rejected Kennedy’s sole jurisdictional theory, that

the Court has specific jurisdiction over Help at Home, reasoning that she failed to cite

any case law, nor was the Court aware of any, to support her claim that her residence in

Pennsylvania is sufficient to establish jurisdiction over a nonresident defendant. Thus,

the Court determined that it lacked “any basis to conclude that [it] ha[d] jurisdiction over

Help at Home,” and dismissal was proper. (JA at 3.) The Court then separately

determined that dismissal under Rule 12(b)(6) was also proper because Kennedy had

failed to timely exhaust her administrative remedies, thereby depriving it of subject

matter jurisdiction. Concluding that no set of facts could be alleged to cure that defect,

the Court dismissed the case with prejudice.

       Kennedy filed a motion for reconsideration, challenging only dismissal under Rule

12(b)(6), which the Court denied. She has now appealed.




                                               3
II.    DISCUSSION 3

       Help at Home argues that we should summarily affirm because Kennedy has not

challenged the District Court’s conclusion that it lacks personal jurisdiction over Help at

Home. 4 See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999) (noting that

“[p]ersonal jurisdiction, too, is an essential element of the jurisdiction of a district …

court, without which the court is powerless to proceed” (internal quotation marks and

citation omitted)). But even taking the issue on the merits, we agree with the District

Court’s conclusion that it lacked personal jurisdiction over Help at Home.

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

jurisdiction. Shuker v. Smith & Nephew, PLC, 885 F.3d 760, 780 (3d Cir. 2018). Once

challenged, the plaintiff bears the burden of showing that personal jurisdiction exists and



       3
         The District Court determined that it lacked subject matter jurisdiction; we have
jurisdiction to review final orders of dismissal under 28 U.S.C. § 1291.
       “We may affirm the district court on any ground supported by the record.” Joyce
v. Maersk Line Ltd., 876 F.3d 502, 512 n.11 (3d Cir. 2017) (en banc) (citation omitted).
Because we agree that the District Court lacks personal jurisdiction over Help at Home,
we do not reach, though we question, the Court’s alternative reason for dismissal for lack
of subject matter jurisdiction. Francis v. Mineta, 505 F.3d 266, 267-68 (3d Cir. 2007); cf.
McDonnell v. United States, 4 F.3d 1227, 1240 n.9 (3d Cir. 1993) (noting that “failure to
exhaust administrative remedies does not per se deprive the court of subject matter
jurisdiction,” and suggesting that exhaustion is a “prudential consideration that the court
takes into account in determining whether to exercise subject matter jurisdiction”).
       4
          In her opening brief, Kennedy does not challenge dismissal under Rule 12(b)(2).
By failing to identify an issue on appeal and present a cogent legal argument to support it,
an appellant typically forfeits the issue, and the court need not address it. See Colwell v.
Rite Aid Corp., 602 F.3d 495, 503 n.7 (3d Cir. 2010) (“It is well settled that an
appellant’s failure to identify or argue an issue in [her] opening brief constitutes waiver
of that issue on appeal.” (quoting United States v. Pelullo, 399 F.3d 197, 222 (3d Cir.
2005))).

                                               4
must establish at least “a prima facie case of personal jurisdiction[.]” O’Connor v. Sandy

Lane Hotel Co., 496 F.3d 312, 316 (3d Cir. 2007).

       Because Pennsylvania’s long-arm statute authorizes personal jurisdiction over

nonresident defendants to the fullest extent permitted under the Constitution, the question

is whether maintaining suit in the Eastern District of Pennsylvania comports with the Due

Process Clause of the Fourteenth Amendment. Id.; see also 42 Pa. Cons. Stat. Ann.

§ 5322(b). “The due process inquiry involves an assessment as to whether the quality

and nature of the defendant’s activity is such that it is reasonable and fair to require [that

it] conduct [its] defense in that state,” i.e., whether the defendant has sufficient

“minimum contacts” with the forum. Metcalfe v. Renaissance Marine, Inc., 566 F.3d

324, 334 (3d Cir. 2009) (alterations in original) (internal quotation marks and citations

omitted).

       In opposing dismissal, Kennedy raised only one theory of personal jurisdiction,

arguing that the District Court had specific personal jurisdiction over Help at Home.

“[S]pecific personal jurisdiction … exists when alleged injuries arise out of or relate to

activities purposefully directed by a defendant toward residents of the forum state.”

Shuker, 885 F.3d at 780 (internal quotation marks and citation omitted).

       The District Court rightly determined, however, that Kennedy failed to show that

Help at Home purposefully directed any conduct at Pennsylvania. Her complaint alleges

that Help at Home maintains its executive office in Maryland, and she does not contest

that it is a Maryland-based company that conducts no business in Pennsylvania.

Moreover, she has conceded that “the alleged incidents of harassment occurred in


                                               5
Maryland[.]” (JA at 39.) Even if we assume, as Kennedy has argued, that “the harm

mostly occurred in Pennsylvania” because that is where she went home and felt the

effects of her ill-treatment, she has cited nothing in the complaint or case law to support

her contention that Help at Home’s knowledge of her Pennsylvania residence is

sufficient, “in the context of employment claims,” for it to “have reasonably anticipated

being brought into Court [there].” (JA at 39.)

       To the contrary, the personal jurisdiction inquiry focuses on the nature of the

defendant’s – not the plaintiff’s – contacts with the forum state, Metcalfe, 566 F.3d at

334, and “the state of a plaintiff’s residence does not on its own create jurisdiction over

[a] nonresident defendant[].” Marten v. Godwin, 499 F.3d 290, 298 (3d Cir. 2007).

Kennedy has not argued, either before the District Court or on appeal, any other basis to

support personal jurisdiction. Because she has not identified an adequate basis for

exercising personal jurisdiction over Help at Home, dismissal with prejudice was proper. 5

III.   CONCLUSION

       For the foregoing reasons, we will affirm the order of dismissal and the order

denying reconsideration.




       5
         To the extent Kennedy requests that we remand the case to the District Court for
purposes of transferring the case to Maryland, she did not make that request before the
District Court, and we decline to address it in the first instance. See Barna v. Bd. of Sch.
Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 147 (3d Cir. 2017) (“Because of the
important interests underlying the preservation doctrine, we will not reach a forfeited
issue in civil cases absent truly exceptional circumstances.” (internal quotation marks and
citation omitted)).

                                              6
