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Yelp, Inc. v. Hadeed Carpet Cleaning, Inc.

Supreme Court of Virginia

April 16, 2015

YELP, INC.
v.
HADEED CARPET CLEANING, INC

FROM THE COURT OF APPEALS OF VIRGINIA.

Paul Alan Levy (Scott Michelman; Raymond D. Battocchi; Public Citizen Litigation Group, on briefs), for appellant.

Raighne C. Delaney (James Bruce Davis; Rachelle E. Hill; Zachary G. Williams; Bean, Kinney & Korman, on briefs), for appellee.

Amici Curiae: Automattic, Inc., Facebook, Inc., Google Inc., Medium, Pinterest, TripAdvisor LLC, and Twitter, Inc. (Eric D. Miller; John K. Roche, Perkins Coie, on briefs), in support of appellant.

Amicus Curiae: Electronic Frontier Foundation (Matthew J. Erausquin; Andrew Crocker; Consumer Litigation Associates, on brief), in support of appellant.

Amici Curiae: Reporters Committee for Freedom of the Press and 16 Others (Bruce D. Brown; Kevin M. Goldberg; Fletcher, Heald & Hildreth, on brief), in support of appellant.

Amicus Curiae: Three Yelp Reviewers Whose Identities Appellee Seeks to Obtain (Jay Ward Brown; Shaina Jones Ward; Matthew E. Kelley; Levine Sullivan Koch & Schulz, on brief), in support of appellant.

PRESENT: Lemons, C.J., Goodwyn, Millette, Mims, McClanahan, and Powell, JJ., and Koontz, S.J. OPINION BY JUSTICE ELIZABETH A. McCLANAHAN. JUSTICE MIMS, with whom JUSTICE MILLETTE joins, concurring in part and dissenting in part.

OPINION

Page 441

ELIZABETH A. McCLANAHAN, JUSTICE

Yelp, Inc. (" Yelp" ), appeals from the judgment of the Court of Appeals affirming the order of the Circuit Court of the City of Alexandria holding Yelp in civil contempt for failing to comply with a non-party subpoena duces tecum served upon it by Hadeed Carpet Cleaning, Inc. (" Hadeed" ). The subpoena duces tecum directed Yelp, a Delaware corporation with its principal place of business in California, to produce documents located in California in connection with a defamation action filed by Hadeed against John Doe defendants. Because we conclude the circuit court was not empowered to enforce the subpoena duces tecum against Yelp, we will vacate the judgment of the Court of Appeals and the contempt order of the circuit court.

I. BACKGROUND

Yelp operates a social networking website that allows registered users to rate and describe their experiences with local businesses. Since Yelp does not require users to provide their actual names, users may post reviews under pseudonyms. Hadeed, a Virginia corporation doing business in Virginia, filed a defamation action in the circuit court against three John Doe defendants alleging they falsely represented themselves as Hadeed customers and posted negative reviews regarding Hadeed's carpet cleaning services on Yelp.

Hadeed issued a subpoena duces tecum to Yelp, seeking documents revealing the identity and other information about the authors of the reviews. The information provided by users of Yelp upon their registration and the Internet Protocol addresses used by registered users who post reviews are stored by Yelp on administrative databases accessible only by specified Yelp employees located in San Francisco.[1] Yelp has no offices in Virginia.

Although Yelp's headquarters are located in California, Yelp is registered to do business in Virginia and has designated a registered agent for service of process in Virginia. Hadeed served the subpoena duces tecum on Yelp's registered agent in Virginia. Yelp objected to an initial subpoena duces tecum for, among other reasons, Hadeed's failure to comply with the requirements of Code § 8.01-407.1. Hadeed then issued a second subpoena duces tecum that complied with the procedural requirements of Code § 8.01-407.1. That section sets forth the procedure that must be followed for any subpoena seeking information identifying a tortfeasor " [i]n civil proceedings where it is alleged that an anonymous individual has engaged in Internet communications that are tortious." Code § 8.01-407.1(A).[2]

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After Yelp filed written objections to the subpoena duces tecum, Hadeed moved to overrule the objections and enforce the subpoena duces tecum. The circuit court issued an order enforcing the subpoena duces tecum and subsequently holding Yelp in civil contempt when it refused to comply.[3] The Court of Appeals affirmed the circuit court's decision. Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., 62 Va.App. 678, 752 S.E.2d 554 (2014).

With specific regard to the exercise of subpoena power over Yelp, the circuit court and Court of Appeals ruled that service of the subpoena on Yelp's registered agent in Virginia provided the circuit court with jurisdiction to enforce the subpoena duces tecum.[4] Id. at 709-10, 752 S.E.2d at 569.

II. ANALYSIS

Yelp contends that the Court of Appeals erred in holding that " a Virginia trial court may assert subpoena jurisdiction over a non-party California company, to produce documents located in California, just because the company has a registered agent in Virginia." [5]

In determining whether the circuit court was empowered to enforce the subpoena duces tecum against Yelp, we first observe that while the General Assembly has expressly provided for the exercise of personal jurisdiction over nonresident defendants under certain circumstances, it has not expressly provided for the exercise of subpoena power over nonresident non-parties. In particular, the General Assembly has provided for the exercise of personal jurisdiction over nonresident defendants, including foreign corporations, through enactment of the long-arm statute, Code § 8.01-328.1, and has provided a range of options for the manner in which nonresident defendants may be served when " exercise of personal jurisdiction is authorized by this chapter." Code § 8.01-329(A).[6] When personal jurisdiction is based upon the long-arm statute, " only a cause of action arising from acts enumerated in this section may be asserted against [the defendant]." Code § 8.01-328.1(C).[7] In contrast

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to the express provisions authorizing the exercise of personal jurisdiction over nonresident defendants and the manner of service of process on such nonresident defendants, the General Assembly has not expressly authorized the exercise of subpoena power over non-parties who do not reside in Virginia.[8]

Similarly, our Rules do not recognize the existence of subpoena power over nonresident non-parties. Rule 4:9A sets forth the procedure for issuing a subpoena duces tecum to a non-party. The subpoena duces tecum may be issued by the clerk pursuant to Rule 4:9A(a)(1) or by an attorney pursuant to Rule 4:9A(a)(2). Rule 4:9A does not address the issuance of a subpoena duces tecum to persons who reside or have a principal place of business outside of Virginia. Likewise, Rule 4:9A does not address the issuance of a subpoena duces tecum for documents located outside of Virginia. Rule 4:9A also does not address service on the non-party of the subpoena duces tecum or service upon a nonresident or foreign corporation.[9]

The General Assembly's authorization of the exercise of personal jurisdiction over nonresident defendants does not confer upon Virginia courts subpoena power over nonresident non-parties. It is axiomatic that " [t]he underlying concepts of personal jurisdiction and subpoena power are entirely different." In re National Contract Poultry Growers' Ass'n, 771 So.2d 466, 469 (Ala. 2000). " Personal jurisdiction is based on conduct that subjects the nonresident to the power of the [state] courts to adjudicate its rights and obligations in a legal dispute." Id. " By contrast, the subpoena power of [a state] court over an individual or a corporation that is not a party to a lawsuit is based on the power and authority of the court to compel the attendance of a person at a deposition, or the production of documents by a person or entity." Id.; Phillips Petroleum Co. v. OKC Ltd. Partnership, 634 So.2d 1186, 1187 (La. 1994) (" The concepts, and/or underlying purposes, of personal jurisdiction and subpoena power are simply different." ).

Therefore, the power to compel a nonresident non-party to produce documents in Virginia or appear and give testimony in Virginia is not based on consideration of whether the nonresident non-party would be subject to the personal jurisdiction of a Virginia court if named as a defendant in a hypothetical lawsuit.[10] See, e.g., In re National Contract Poultry Growers' Ass'n, 771 So.2d at 469 (" The fact that NCPGA may have sufficient

Page 444

contacts with the State of Alabama to subject it to the jurisdiction of the Alabama courts under the Alabama long-arm personal-jurisdiction provisions is irrelevant to the question [of whether it is required to respond to a subpoena in a lawsuit in which it is not a party]." ); Colorado Mills, LLC v. SunOpta Grains & Foods Inc., 269 P.3d 731, 734, 2012 CO 4 (Colo. 2012) (There is no " authority applying our long-arm statute, or the long-arm statute of any other state for that matter, to enforce a civil subpoena against an out-of-state nonparty." ); Ulloa v. CMI, Inc., 133 So.3d 914, 920 (Fla. 2013) (" The long-arm statute does not extend the subpoena power of a Florida court to command the in-state attendance of a non-resident, non-party person or entity, or compel that person or entity to produce documents." ); Phillips Petroleum Co., 634 So.2d at 1188 (" Whereas the long-arm statute extends Louisiana's personal jurisdiction over persons or legal entities beyond Louisiana's borders, there is no similar authority for extending the subpoena power of a Louisiana court beyond state lines to command in-state attendance of nonresident nonparty witnesses." ); Syngenta Crop Prot., Inc. v. Monsanto Co., 908 So.2d 121 (Miss. 2005) (" [A] Mississippi court cannot subpoena a nonresident nonparty to appear and/or produce in Mississippi documents which are located outside the State of Mississippi, even if that nonresident nonparty is subject in another context to the personal jurisdiction of the court." ); Craft v. Chopra, 1995 OK CIV APP 135, 907 P.2d 1109, 1111 (Okla. Ct. App. 1995) ( rejecting the assertion that " discovery of documents from non-resident non-parties by subpoena issued in the State of Oklahoma" is permitted " so long as the non-resident has sufficient due process 'minimum contacts' with the State of Oklahoma" ).[11]

Thus, enforcement of a subpoena seeking out-of-state discovery is generally governed by the courts and the law of the state in which the witness resides or where the documents are located. See, e.g., In re National Contract Poultry Growers' Ass'n, 771 So.2d at 469 (where documents located in foreign jurisdiction are sought from non-party foreign corporation, subpoena must issue from foreign jurisdiction and be served in accordance with law of foreign jurisdiction); Colorado Mills, LLC, 269 P.3d at 734 (" enforcing civil subpoenas against out-of-state nonparties is left to the state in which the discovery is sought" ). In recognition of the territorial limits of subpoena power, most states have adopted some form of the Uniform Interstate Depositions and Discovery Act (" UIDDA" ), which sets forth procedures for litigants to pursue out-of-state discovery.[12]

The Virginia General Assembly enacted the UIDDA, Code § § 8.01-412.8 et seq., in 2009. The Act provides reciprocal mechanisms by which discovery of persons and documents in Virginia may be obtained in connection with actions pending in a foreign jurisdiction through presentment of a subpoena issued by the foreign jurisdiction.[13] " In applying and construing this uniform act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it." Code § 8.01-412.14. Thus,

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[t]he privilege extended to persons in other states for discovery under this article shall only apply if the jurisdiction where the action is pending has extended a similar privilege to persons in the Commonwealth, by that jurisdiction's enactment of the Uniform Interstate Depositions and Discovery Act, a predecessor uniform act, or another comparable law or rule of court providing substantially similar mechanisms for use by out-of-state parties.

Id.

The UIDDA, as enacted in Virginia, is the successor to the Uniform Foreign Depositions Act (" UFDA" ), " rooted in principles of comity and provides a mechanism for discovery of evidence in aid of actions pending in foreign jurisdictions." America Online, Inc. v. Anonymous Pub. Traded Co., 261 Va. 350, 360, 542 S.E.2d 377, 382 (2001) (applying UFDA). Comity " is a matter of favor or courtesy, based on justice and good will. It is permitted from mutual interest and convenience, from a sense of the inconvenience which would otherwise result, and from moral necessity to do justice in order that justice may be done in return." Id. at 361, 542 S.E.2d at 383; see also America Online, Inc. v. Nam Tai Elecs., Inc., 264 Va. 583, 591, 571 S.E.2d 128, 132 (2002) (applying UFDA).

In determining the scope of subpoena power over nonresident non-parties, it is important to consider the policy underlying the General Assembly's enactment of the UIDDA. The UIDDA provides a reciprocal and fair process that assists out-of-state litigants seeking discovery from non-parties and seeks to " promote uniformity of the law with respect to its subject matter among the states that enact it." Code § 8.01-412.14. The UIDDA affords protection to Virginia citizens subject to a subpoena from another state by providing for enforcement of the subpoena in Virginia. In turn, the UIDDA contemplates that Virginia courts will respect the territorial limitations of their own subpoena power. Such respect furthers the preservation of comity and uniformity among the states, which ultimately benefits Virginia citizens.[14]

The language of the statute also manifests the intent of the General Assembly to respect the territorial limitations of out-of-state discovery. Under the UIDDA, the place where " discovery is sought to be conducted" determines which circuit court issues and enforces a subpoena. See Code § § 8.01-412.10 and -412.13. The location of discovery also determines which jurisdiction's law governs a non-party's discovery obligations. See § 8.01-412.12. This language indicates the General Assembly has not created two mechanisms for obtaining discovery from a non-party residing outside of Virginia.[15]

In sum, we conclude that the circuit court was not empowered to enforce the non-party subpoena duces tecum directing Yelp to produce documents located in California in connection with Hadeed's underlying defamation action against the John Doe defendants in the Virginia circuit court. The information sought by Hadeed is stored by Yelp in the usual course of its business on administrative databases within the custody or control of only specified Yelp employees located in San Francisco, and thus, beyond the reach of the circuit court.[16] Our holding is consistent

Page 446

with the traditional limits on subpoena power of state courts and the public policy established by the General Assembly through enactment of the UIDDA.[17] Although the General Assembly has expressly authorized Virginia courts to exercise personal jurisdiction over nonresident parties, it has not expressly authorized Virginia courts to compel nonresident non-parties to produce documents located outside of Virginia. Because the underlying concepts of personal jurisdiction and subpoena power are not the same, the question of whether Yelp would be subject to personal jurisdiction by Virginia courts as a party defendant is irrelevant.[18] Therefore, subpoena power was not conferred upon the circuit court by Yelp's act in registering to conduct business in Virginia or designating a registered agent for service of process in the Commonwealth.

III. CONCLUSION

For the foregoing reasons, we will vacate the judgment of the Court of Appeals, vacate the contempt order of the circuit court, and remand for further proceedings consistent with this opinion.[19]

Reversed and remanded.

CONCUR BY: MIMS, In Part

DISSENT

JUSTICE MIMS, with whom JUSTICE MILLETTE joins, concurring in part and dissenting in part.

The majority opinion holds that the General Assembly has not provided for the exercise of " subpoena power" over non-resident non-parties. Because the relevant statutory text is clear, I disagree.

The General Assembly has said that a subpoena duces tecum is " process." Code § 1-237 (defining " process" to include a subpoena); Code § 8.01-2(8) (defining " subpoena" to include a subpoena duces tecum for the purposes of Title 8.01). It has said that " [u]pon commencement of an action, process shall be served in the manner set forth in" Chapter 8 of Title 8.01. Code § 8.01-287. Chapter 8 of Title 8.01 includes Code § 8.01-301. In Code § 8.01-301(1), the General Assembly provides that a foreign corporation may be served with process through its Virginia registered agent. Nothing in the Code restricts service of process if the foreign corporation is a non-party or redefines process to exclude subpoenas or subpoenas duces tecum if the foreign corporation is a non-party. Finally, the General Assembly has said that Virginia courts may use their

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contempt power to punish any person who disobeys lawful process. Code § 18.2-456(5).

Thus, the General Assembly has provided for the exercise of subpoena power over a non-resident non-party, where that non-resident non-party is a foreign corporation with a Virginia resident agent (as Yelp is in this case). The majority opinion overlooks the clear statutory language.[1] As far as the General Assembly is concerned, if a foreign corporation can be lawfully served with process in Virginia, Virginia courts can compel it to respond to discovery here. However, for reasons I discuss below, state statutes are not the last word on this subject. Rather, the Due Process Clause of the Fourteenth Amendment narrows the broad authority the General Assembly has given Virginia courts.

But before undertaking the constitutional analysis, some important observations are in order. First, in its statement of facts, the majority opinion says that Yelp stores IP addresses in administrative databases accessible only by specified Yelp employees located in San Francisco. No evidence supports this statement. Rather, through an affidavit by its Associate Director of User Operations, Yelp says only that the user operations team has access to the database, and the user operations team is in San Francisco. This does not establish that user operations team members are the only Yelp employees with access to the database, or that all other employees with access, if any, are only in San Francisco.[2]

This misstatement of the evidence is compounded by footnote 17, in which the majority opinion states that the Court's holding does not mean that Virginia courts cannot compel production in Virginia by a non-party foreign corporation that (unlike Yelp) has an office in Virginia. The implication of this footnote is that if the record at issue is located in Virginia, Virginia courts can compel the non-party foreign corporation to produce it here. Yet the majority opinion's conclusion makes that impossible. If the General Assembly has not provided for the exercise of subpoena power over a non-resident non-party (as the majority opinion says), how can Virginia courts acquire this authority based solely on the location of the record being sought? The majority opinion, which is based solely upon an interpretation of what the General Assembly has authorized, cites no statute for this proposition.

Further, to base the courts' power to compel production on the geographic location of a record is simply incompatible with the digital era. The majority opinion appears to presume that records are still printed on paper as documents and stored in filing cabinets in a file room, where they can be seen and touched. This practice is waning in modern interstate commerce and soon only nostalgic vestiges will remain, the lingering artifacts of an earlier age. Now, records are more commonly intangible and incorporeal, stored electronically in binary form. Where are such records located? Only on the device where the information is created? On any device where a copy can be found? On any device that can access it remotely? Under the majority opinion, the answers to these

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questions will determine whether the General Assembly has authorized Virginia courts to exercise subpoena power. And the questions cannot be answered in the abstract. Circuit courts throughout the Commonwealth will be forced to grapple with them often.

To illustrate the practical difficulty the majority opinion needlessly creates, one can consider a hypothetical case where an employer sues a former employee to recover funds he embezzled by falsely endorsing a customer's check and depositing it in his personal account. The check is both drawn on and deposited into accounts at a national bank incorporated in Delaware with its principal place of business in North Carolina. The bank has a registered agent, hundreds of branches, and thousands of employees in Virginia. The employer serves a subpoena duces tecum on the bank's Virginia registered agent, seeking production of the check. The bank routinely scans all paid and deposited checks, stores the images electronically on a server located at its principal office in North Carolina, and destroys the physical check.

According to the majority opinion, whether the General Assembly has authorized Virginia courts to compel this out-of-state bank, a non-party foreign corporation but with pervasive presence in and contacts with Virginia, to produce its electronic record depends on where the record is located. That cannot be the case, but it is the effect of the majority opinion's analysis.[3],[4]

Second, the majority opinion states that the General Assembly has not authorized courts to exercise subpoena power over a non-resident non-party in the long-arm statute, Code § 8.01-328.1. However, the long-arm statute is irrelevant. It neither confers nor constrains the power at issue here. As noted above, the authority is provided by Code § § 1-237, 8.01-2(8), 8.01-287, 8.01-301, and 18.2-456(5).

To the contrary, the long-arm statute expressly provides that " nothing contained in this chapter shall limit, restrict or otherwise affect the jurisdiction of any court of this Commonwealth over foreign corporations which are subject to service of process pursuant to the provisions of any other statute." Code § 8.01-328.1(C). Foreign corporations with Virginia registered agents are subject to service of process under Code § 8.01-301(1). The long-arm statute therefore does not deny Virginia courts jurisdiction over them, whether they are parties or not. This is consistent with our previous holdings that by enacting the long-arm statute, the General Assembly intended to confer as much jurisdiction upon Virginia courts as constitutional due process allows. E.g., Peninsula Cruise, Inc. v. New River Yacht Sales, Inc., 257 Va. 315, 319, 512 S.E.2d 560, 562 (1999); John G. Kolbe, Inc. v. Chromodern Chair Co., 211 Va. 736, 740, 180 S.E.2d 664, 667 (1971).

Third, the majority opinion refers to the legislature's enactment of the Uniform Interstate Depositions and Discovery Act, Code § § 8.01-412.8 to -412.15, as further support for its conclusion that the General Assembly has not authorized Virginia courts to exercise subpoena power over non-resident non-parties. However, that Act only provides Virginia courts with additional authority.[5] Nothing in it subtracts from the statutory authority the General Assembly has already provided Virginia courts in Code § § 1-237, 8.01-2(8), 8.01-287, 8.01-301, and 18.2-456(5). Consequently, Virginia courts had authority to compel production by a non-party foreign corporation prior to the Act's enactment, and that authority remains.

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Fourth, the majority opinion cites several decisions by appellate courts in other states finding that trial courts in those states could not enforce a subpoena against a non-resident non-party. However, those decisions are not relevant in this case because they are interpretations holding that the applicable state law did not provide those states' courts with the broad authority the General Assembly has provided Virginia courts in Code § § 1-237, 8.01-2(8), 8.01-287, 8.01-301, and 18.2-456(5).

The majority opinion relies principally on In re National Contract Poultry Growers' Ass'n, 771 So.2d 466 (Ala. 2000). That Alabama case involved a non-party corporation incorporated in Arkansas. Its principal place of business was in Louisiana and it did not have an Alabama registered agent. A party obtained a subpoena against the corporation and served it by certified mail at its Louisiana office. The corporation did not respond to the subpoena and the trial court thereafter found it in contempt. Id. at 466-67. On appeal, the Supreme Court of Alabama reversed. Id. at 470. It determined that an Alabama statute and the Alabama Rules of Civil Procedure permitted a subpoena to be " served at any place within the state." 771 So.2d at 468-69 (quoting Ala. R. Civ. P. 45(b)(2)). Because the subpoena was served by certified mail in Louisiana, the subpoena was not served on the corporation within the state as Alabama law required. Id. at 469-70.

Similarly, Craft v. Chopra, 1995 OK CIV APP 135, 907 P.2d 1109 (Okla.Civ.App. 1995), involved a plaintiff suing a doctor in Oklahoma, alleging that he sexually abused her while she was under anesthesia. She obtained a subpoena against a Texas hospital for letters of recommendation pertaining to the doctor's privileges there. There is no indication of whether the hospital had a registered agent in Oklahoma. Rather, the subpoena was served on it by certified mail in Texas. When the hospital resisted the subpoena, the trial court refused to enforce it and awarded the hospital damages. Id. at 1110-11. On appeal, the Oklahoma Court of Civil Appeals affirmed. It determined that under the Oklahoma statute, subpoenas could be served only within the state. Id. (construing former Okla. Stat. tit. 12, § 2004.1(A)(1)(c)).

These cases are irrelevant here because Yelp was served in Virginia according to Virginia law. Code § 8.01-301(1).

Another case cited in the majority opinion, Syngenta Crop Prot., Inc. v. Monsanto Co., 908 So.2d 121 (Miss. 2005), involved three non-party corporations. All three were incorporated in Delaware. One had its principal place of business in North Carolina, another in Minnesota, and the last in Indiana. All had Mississippi registered agents. Id. at 124. The Supreme Court of Mississippi ruled that a state statute permitted service of process on foreign corporations by registered or certified mail but that a rule of court required subpoenas to be served personally. Id. at 127-28 (construing Miss. Code Ann. § 79-4-15.10 and Miss. R. Civ. P. 45(c)(1)). Reconciling these conflicting provisions of Mississippi law, the court determined that subpoenas were not process and therefore could not be served on a foreign corporation through its registered agent. Id.

This case is not relevant here because a subpoena is process under Virginia law and can be served on a foreign corporation through its Virginia registered agent. Code § § 1-237 and 8.01-301(1).

Other cases cited in the majority opinion are also irrelevant. Ulloa v. CMI, Inc., 133 So.3d 914 (Fla. 2013) involved criminal defendants charged with driving under the influence who sought technical data from the corporation that manufactured breathalyzer equipment. The corporation was incorporated in Kentucky. There is no indication of where it had its principal place of business, but it had a Florida registered agent. Id. at 915. The Supreme Court of Florida determined that the applicable Florida statute provided that subpoenas in criminal cases ran only within the state. Id. at 920-21 (construing Fla. Stat. § 914.001(1)).

Similarly, Phillips Petroleum Co. v. OKC Ltd. P'ship, 634 So.2d 1186 (La. 1994), involved a non-party corporation incorporated in Texas. Its principal place of business was in Texas, but it had a Louisiana registered agent. Id. at 1187. The Supreme Court of Louisiana determined that the applicable Louisiana statute simply did not " provide for

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the subpoena of a nonresident witness." Id. at 1188 n.3 (construing La. Code Civ. Proc. Ann. art. 1352).

These cases are not relevant here because Virginia law does provide for the subpoena of a non-resident non-party, if that non-party is a foreign corporation with a Virginia registered agent that can be served with process.

Each of these opinions also includes language (recited in the majority opinion in this case) rejecting the claims made by the parties seeking discovery that the subpoenas should be enforced because the courts could exercise personal jurisdiction over the foreign corporations. I agree with the majority opinion and these out-of-state cases that having personal jurisdiction over a non-resident non-party is not enough to allow a court to enforce a subpoena; there must also be statutory authority enabling a court to exercise that jurisdiction by enforcing a subpoena. Where I part with the majority opinion is its conclusion that the General Assembly has not provided that authority here, under Virginia law.

These flaws in the majority opinion are significant and problematic. Nevertheless, it reaches the correct conclusion that the circuit court cannot enforce Hadeed's subpoena duces tecum in this case. However, the reasons are constitutional rather than statutory. Specifically, a state court's coercive judicial power is limited by the Due Process Clause of the Fourteenth Amendment. J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S.___, ___, ___, 131 S.Ct. 2780, 2786-87,180 L.Ed.2d 765 (2011). This extends to enforcement of subpoenas and subpoenas duces tecum. Eli Lilly & Co. v. Gottstein, 617 F.3d 186, 192 & n.4 (2d Cir. 2010) (collecting cases); see also United States Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 76, 108 S.Ct. 2268, 101 L.Ed.2d 69 (1988) (" [T]he subpoena power of a court cannot be more extensive than its jurisdiction." ).

Hadeed argues that Virginia courts may constitutionally exercise personal jurisdiction over Yelp because it has a Virginia registered agent and therefore has consented to being subject to jurisdiction here. There is historical authority supporting the proposition that a foreign corporation consents to be sued in a state when it appoints an agent for the receipt of process there. E.g., Railroad Co. v. Harris, 79 U.S. 65, 81, 20 L.Ed. 354 (1871); Pennoyer v. Neff, 95 U.S. 714, 735, 24 L.Ed. 565 (1878); Ex parte Schollenberger, 96 U.S. 369, 24 L.Ed. 853 (1878); Pennsylvania Fire Ins. Co. v. Gold Issue Mining & Milling Co., 243 U.S. 93, 95-96, 37 S.Ct. 344, 61 L.Ed. 610 (1917).

However, to the extent that these cases are applicable to a non-party foreign corporation at all, I believe they have been supplanted by the contacts-based theory of personal jurisdiction articulated in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Shaffer v. Heitner, 433 U.S. 186, 212, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977) (" [A]ll assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny." ) Contacts-based jurisdiction comes in two forms, general and specific. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 n.15, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). The party claiming that a court may exercise jurisdiction bears the burden of showing a prima facie case for that claim. ESAB Group, Inc. v. Zurich Ins. PLC, 685 F.3d 376, 391 (4th Cir. 2012).

To be subject to general jurisdiction, a foreign corporation must have " 'continuous corporate operations within a state . . . so substantial and of such a nature as to justify suit on causes of action arising from dealings entirely distinct from'" the activities it purposefully directs there. Daimler AG v. Bauman, 571 U.S.___, ___, 134 S.Ct. 746, 761, 187 L.Ed.2d 624 (2014) (quoting International Shoe, 326 U.S. at 318) (alteration and emphasis omitted). A corporation has such operations in the states where it is incorporated and where it has its principal place of business. Id. at 760. A corporation may also be subject to general jurisdiction in other states, provided that the corporation's operations there are " 'so continuous and systematic as to render [it] essentially at home'" there. Id. at 761 & n.19 (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S.___, ___, 131 S.Ct. 2846, 2851, 180 L.Ed.2d 796 (2011) (internal quotation marks omitted)).

Yelp is incorporated in Delaware. Its principal place of business is in California. Hadeed has neither alleged nor shown that

Page 451

Yelp has any corporate operations within the Commonwealth, much less operations that are sufficiently " continuous and systematic," for the purposes of the Goodyear Dunlop test. Accordingly, I cannot conclude on this record that Virginia courts may exercise general jurisdiction over Yelp.

Specific jurisdiction assesses whether a foreign corporation has sufficient contacts with a state for its courts to constitutionally exercise jurisdiction over the corporation based on its activity there. Burger King, 471 U.S. at 472. Further, the foreign corporation's activities must be " purposefully directed" at that state. Id. Activity is purposefully directed at a state if it is " such that [the corporation] should reasonably anticipate being haled into court there." Id. at 474. " [R]andom, fortuitous, or attenuated" activity or " the unilateral activity of another party or a third person" is insufficient. Id. at 475 (internal quotation marks and citations omitted).

The limited record in this case does not establish that Yelp has sufficient contacts with the Commonwealth or that it has purposefully directed activities here such that Virginia courts may exercise specific jurisdiction over it. Neither the complaint nor the materials Hadeed submitted in support of the subpoena duces tecum alleges any such contacts or purposeful direction; rather, each merely states that Yelp operates a website with approximately 54 million unique visitors per year.

Hadeed has not shown whether Yelp has paid subscribers or how many of them reside in Virginia. It has not shown how many Virginians view or contribute to Yelp's website, or that merely viewing or contributing to the website would amount to more than " the unilateral activity of . . . a third person," which is insufficient to confer specific jurisdiction. Burger King, 471 U.S. at 475. It has not shown whether Yelp solicits advertising from Virginia businesses or that it has any contracts with Virginia residents. Accordingly, the record does not include evidence from which I can conclude that Yelp has sufficient contacts with or has purposefully directed activity into Virginia so that courts here may constitutionally exercise specific jurisdiction over it.[6]

For these reasons, I must respectfully dissent from the majority opinion's determination that the circuit court lacked statutory authority to enforce the subpoena duces tecum against Yelp. However, I conclude that the evidence was insufficient to establish that the court could exercise personal jurisdiction over Yelp within the limits of Fourteenth Amendment due process. I therefore concur in the judgment vacating both the judgment of the Court of Appeals and the contempt order of the circuit court.


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