govinfo:USCOURTS-pawd-2_26-cv-00617-0

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF PENNSYLVANIA 
 
GRACIANO CORPORATION, 
 
  Plaintiff, 
 
 v. 
 
ERIKA TIRADO, 
 
  Defendant. 
 
 
 
 
26cv0617 
ELECTRONICALLY FILED 
 
MEMORANDUM ORDER 
 
I. BACKGROUND 
 Before the Court is Defendant’s Motion to Dismiss Plaintiff’s Complaint, her Brief in 
Support of same, and her affidavit (ECF 28, ECF 29 ECF 28-1), all predicated upon Fed.R.Civ.P. 
12(b)(2).  Plaintiff filed its Brief in Opposition (ECF 32) along with an affidavit in support of 
same. ECF 32-1. The matter is ripe for adjudication. 
II. STANDARD OF REVIEW 
 When replying to a motion to dismiss under Fed. R. Civ. P. 12(b)(2) for lack of personal 
jurisdiction, Plaintiff bears the burden of proving, by a preponderance of the evidence, facts 
adequate enough to establish personal jurisdiction over Defendant(s), by producing sufficient 
evidence.  Castapheny v. W. Virginia State Police, 2010 WL 1901817, at 3 (W.D. Pa. May 11, 
2010) (Lenihan, J.).  A district court may assert personal jurisdiction over a nonresident 
Defendant, “to the extent permissible under the law of the state where the district court sits.” 
Pennzoil Prod. Co. v. Colelli & Assocs., Inc., 149 F.3d 197, 200 (3d Cir.1998) (citation omitted). 
Pennsylvania's long-arm statute, 42 Pa. Cons.Stat. Ann. § 5322(b), authorizes Pennsylvania 
courts “to exercise personal jurisdiction over nonresident defendants to the constitutional limits 
of the due process clause of the Fourteenth Amendment.” Remick v. Manfredy, 238 F.3d 248, 
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255 (3d Cir. 2001), quoting Mellon Bank (East) PSFS, Nat'l Ass'n v. Farino, 960 F.2d 1217, 
1221 (3d Cir.1992). 
 To satisfy due process requirements, Defendant must have certain minimum contacts 
with the forum state such that the progression of the suit will not offend “traditional notions of 
fair play and substantial justice.” Id. (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 
(1945)).  The minimum contacts cannot be created by Plaintiff, but Defendant must purposefully 
avail itself of the privileges (and thus invoking the protection) of the laws when conducting 
business in the forum state.  Id.  (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 
(1985)). 
 Personal jurisdiction exists in one of two ways: specific jurisdiction and general 
jurisdiction.  Id.  General jurisdiction is based upon the defendant’s “continuous and systematic” 
contacts with the forum and exists even if the plaintiff’s cause of action arises from the 
defendant’s non-forum related activities. See Vetrotex Certainteed Corp. v. Consol. Fiber Glass 
Prod. Co., 75 F.3d 147, 151 n. 3 (3d Cir.1996) (citations omitted). In contrast, specific 
jurisdiction is present only if the plaintiff’s cause of action arises out of a defendant's forum-
related activities, such that the defendant “should reasonably anticipate being haled into court” in 
that forum. Remick v. Manfredy, 238 F.3d 248, 255 (3d Cir. 2001). 
 Further, in intentional tort cases such the instant case, the Court must apply the Calder 
“effects test,” which requires Plaintiff to show the following: (1) Defendant committed an 
intentional tort; (2) 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) 
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.   
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III. DISCUSSION 
 When reviewing a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, the 
court must accept as true the factual allegations in the pleadings and resolve all factual disputes 
in the plaintiff's favor. Pinker v. Roche Holdings Ltd., 292 F.3d 361, 368 (3d Cir. 2002). The 
court need not limit the scope of its review to the pleadings and instead must consider affidavits 
and other competent evidence submitted by the parties. Patterson by Patterson v. F.B.I., 893 
F.2d 595, 603–04 (3d Cir. 1990). 
 Turning to the instant matter, Defendant’s Motion and Affidavit admit Defendant was 
Plaintiff’s employee for fifteen years, and that she worked as an administrative assistant in an 
office and/or her own home, both of which are located in New York. ECF 28, ECF 28-1. Her 
affidavit also indicates that her administrative assistant duties required her “to maintain New 
York records pertaining to Graciano Corporation and its business in New York.” ECF 28-1. Her 
affidavit also states that Defendant never worked or lived in the Commonwealth of Pennsylvania 
during her term of employment with Plaintiff, that she never visited Plaintiff’s Pennsylvania-
based headquarters, and that she “never accessed documents, records, and/or confidential 
information in Pennsylvania pertaining to Graciano Corporation.” 
 Neither Plaintiff’s Complaint nor its Brief in Opposition argues that Defendant is a 
resident of Pennsylvania. To the contrary, Plaintiff has alleged that Defendant, a nonresident, 
intentionally accessed and misused information and systems belonging to Plaintiff, a 
Pennsylvania‑based company, and caused harm in Pennsylvania through Defendant’s retention 
and dissemination of Graciano’s confidential and proprietary information. Plaintiff’s Brief in 
Opposition and Affidavit further indicate that Plaintiff’s “corporate headquarters and principal 
place of business are located [in] . . . Pittsburgh, Pennsylvania” and that its “file server is housed 
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at its corporate headquarters in Pittsburgh.”  In addition, Plaintiff’s affidavit also notes that 
“Graciano does not maintain a file server at its New York location” and that the “data described 
in Graciano’s Verified Complaint (ECF No. 1) are housed at a combination of its corporate 
headquarters in Pittsburgh, and the offices of its information technology contractor, Corkboard 
Concepts, also in Pittsburgh.” 
 Because the Complaint at issue alleges that Defendant committed several intentional torts 
(i.e. misappropriation of trade secrets, violations of the computer fraud and abuse act, breach of 
fiduciary duty, conversion and trespass to chattels), the Court utilizes the Calder effects test to 
determine if Plaintiff has met its burden of demonstrating this Court’s personal jurisdiction.1  
Calder v. Jones, 465 U.S. 783 (1984).  
 The Calder effects test allows a plaintiff to demonstrate personal jurisdiction if he or she 
shows: 
(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; 
 
1 As note in IMO Indus., Inc. v. Kiekert AG:  
 
Since this is an intentional tort case, we must consider whether the application of Calder 
v. Jones, supra, can change the outcome. Generally speaking, under Calder an intentional 
tort directed at the plaintiff and having sufficient impact upon it in the forum may suffice 
to enhance otherwise insufficient contacts with the forum such that the “minimum 
contacts” prong of the Due Process test is satisfied. See Keeton v. Hustler Magazine, Inc., 
465 U.S. 770, 780, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984). We therefore concentrate our 
minimum contacts discussion below on the Calder test. 
 
IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 259–60 (3d Cir. 1998) 
 
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(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. 
Marten v. Godwin, 499 F.3d 290, 297 (3d Cir. 2007). 
 The Court notes that the Complaint alleges the following facts which this Court must 
accept as true for the purposes of adjudicating this Motion, Defendant: (1) was provided with a 
handbook that described confidential information and prohibited employees from disclosing the  
information to unauthorized third-parties; (2) had access to internal company data, records and 
files which qualified as confidential information; and (3) while investigating a complaint raised 
by Defendant, Plaintiff discovered Defendant had removed documents containing confidential 
information which she accessed and obtained during the course of her fifteen years of 
employment. The Court further notes that after fifteen years of working for Plaintiff, Defendant 
knew that Plaintiff was a Pennsylvania-based corporation and thus, was likely to have its 
proprietary and confidential corporate data housed in hard-copy and/or electronic formats in 
Pennsylvania.  
 Based upon the statements set forth above as paraphrased from the Complaint and given 
the Plaintiff’s affiant’s statements suggesting that the confidential information Plaintiff accessed 
and obtained during her tenure as an employee (and subsequently shared with a third party or  
third parties), could only be obtained through a Pennsylvania-based server or a Pennsylvania  
partner (Corkboard) also located in Pennsylvania, the Court finds that all three prongs of the 
Calder effects test have been met.   
 
 
 
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IV. CONCLUSION  
 Based on the foregoing law and authority and given the factual statements which the 
Court accepts as true for the purposes of this Motion, Defendant’s Motion Dismiss for lack of 
personal jurisdiction in accordance with Fed.R.Civ.P. 12(b)(2) is DENIED. 
 SO ORDERED this 4th day of May, 2026. 
      BY THE COURT, 
          s/ Arthur J. Schwab        
        Arthur J. Schwab  
 
  
cc:  ECF Counsel of Record 
  
  
  
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