08/26/16

In FireClean, LLC v. Tuohy, 1:16-CV-0294, 2016 WL3952093 (E.D. Va. July 21, 2016), the Eastern District of Virginia dismissed a defamation lawsuit for lack of personal jurisdiction. The underlying claims arose from articles posted on blogs and various social media websites, including Facebook, regarding a gun oil manufactured by the plaintiff. The allegedly defamatory materials questioned whether the plaintiff’s product, an oil used to lubricate firearms and reduce carbon residue buildup, was any different than ordinary cooking oil. After an unrelated party had questioned the plaintiff’s product, the defendants had independently sought to test the product with the assistance of various chemists. One of the defendants was located in Arizona and the other in Massachusetts. Both ultimately published materials critical of the plaintiff’s product.

The plaintiff, a Virginia company, filed suit in Virginia alleging defamation. The court, however, dismissed the case finding that it lacked personal jurisdiction over the defendants. Applying the Fourth Circuit’s analysis in Young v. New Haven Advocate, 315 F.3d 256 (4th Cir. 2002) and ALS Scan, Inc. v. Digital Services Consultants, Inc., 293 F.3d 708 (4th Cir. 2002), the court found that publication of online materials that were not specifically directed to Virginia was insufficient to establish the minimum contacts necessary for personal jurisdiction. After reviewing the standard adopted by the Fourth Circuit, which considers not only the interactivity of the online service, but more importantly, whether the defendant directed its activities intentionally towards Virginia, the court dismissed the claim.

Although the plaintiff noted that there had been communications between the parties (one of whom was in Virginia), the plaintiff had sent samples from Virginia, some of the readers who had “liked” the posts were located in Virginia, and some of the transmissions may have run through servers in Virginia, the court held that these were de minimis contacts insufficient to establish jurisdiction. The court also rejected a co-conspirator theory of jurisdiction as to the defendant located in Massachusetts. Recognizing that the Massachusetts defendant had fewer contacts and would not be subject to jurisdiction independently, the plaintiff argued that he was subject to jurisdiction as a co-conspirator with the Arizona defendant. Having rejected the argument with respect to the Arizona defendant, the court held that the plaintiff could not succeed under a co-conspirator theory as to the Massachusetts defendant.

The court also found insufficient facts in the record to suggest the parties had combined together to effect a preconceived plan sufficient to make the claim plausible. In reaching these conclusions, the court also overruled an objection from the plaintiff to a prior ruling by the magistrate judge denying jurisdictional discovery. The court found that the magistrate judge had correctly analyzed the standard and determined that the materials sought would not materially affect the outcome of the analysis.

It will be interesting to see how the law continues to evolve in this area. There is no question that the Internet makes application of traditional jurisdiction principles difficult, at best. Clearly, merely being accessible is not sufficient to create jurisdiction, but what is required remains unclear. Even in a defamation case, where the online material was technically published in Virginia (and everywhere else) and the plaintiff no doubt suffered some harm from the publication in its home state of Virginia, the court found insufficient contacts to establish jurisdiction.

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