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Datacell EHF. v. Visa, Inc.

United States District Court, E.D. Virginia, Alexandria Division

July 30, 2015

DATACELL EHF., Plaintiff,


GERALD BRUCE LEE, District Judge.

THIS MATTER is before the Court on Defendant Visa, Inc. ("Visa")'s Motion to Dismiss (Doc. 21) and Defendant MasterCard Incorporated ("MasterCard")'s Motion to Dismiss the Complaint ("MasterCard's Motion to Dismiss") (Doc. 25) (collectively, "Motions to Dismiss"). This case involves Plaintiff Data Cell ehf. ("DataCell")'s claims against Visa and MasterCard (collectively, "Defendants") alleging that the two conspired to restrain trade in violation of Section 1 of the Sherman Act by ordering their licensees to stop payment processing for DataCell and its partner. Sunshine Press, in the wake of controversy surrounding Sunshine Press' website, WikiLeaks.

There are three issues before the Court. First, whether the Court should grant Defendants' Motions to Dismiss where Defendants argue that DataCell cannot establish personal jurisdiction under Section 12 of the Clayton Act. Second, whether the Court should grant Defendants' Motions to Dismiss where Defendants argue that DataCell cannot establish standing-either Article III standing or antitrust standing-requisite to bring its claims. Third, whether the Court should grant Defendant' Motions to Dismiss where Defendants argue that DataCell fails to plead facts sufficient to state claims for relief on any of its counts. The Court finds that it cannot exercise personal jurisdiction over MasterCard because MasterCard conducts no business in the forum as required by Section 12 of the Clayton Act. The Court also finds that DataCell does not establish standing, and that DataCell does not plead facts sufficient to state a claim. The Court will not grant DataCell leave to amend its Complaint because doing so would be futile and prejudicial. Therefore, the Court GRANTS Defendants' Motions to Dismiss and the Court dismisses the Complaint without leave to amend.


DataCell is an Icelandic corporation which provides server hosting and technical support to companies including Sunshine Press Productions, ehf. ("Sunshine Press"), a media organization which operates the controversial website WikiLeaks. (Compl. ¶¶ 7-8). Visa, a Delaware corporation with its principal place of business in California, and MasterCard, a Delaware Corporation with its principal place of business in New York, a repayment card companies. ( Id. ¶¶ 2, 4, 9).

Sunshine Press subsists on public donations, in part via credit cards issued under the Visa and MasterCard brand names. ( Id. ¶ 9). DataCell has a contract with Sunshine Press that entitles it to five percent of donations. ( Id. ¶ 32). In October of 2010, DataCell and Sunshine Press entered an at-will agreement with PBS International A/S of Denmark ("Teller") to process their credit card transactions in Iceland. ( Id. ¶ 10). In November of 2010, Sunshine Press leaked diplomatic cables from the Unites States State Department, drawing outrage from then-Senator Joseph Lieberman ("Lieberman") and U.S. Representative and then-Chairman of the House Committee on Homeland Security Peter King ("King"). ( Id. ¶ 11-12).

King publically criticized Sunshine Press and tried to have it classified as a terrorist organization. ( Id. ¶ 13-14). At some unspecified point, Lieberman and King instructed their respective staffs to contact Defendants and request that Defendants stop payment processing on donations for Sunshine Press. ( Id. ¶ 15). On December 7, 2010, Defendants contacted Teller and instructed it to halt payment processing from their cards in support of DataCell because of its relationship with Sunshine Press. ( Id. ¶ 17). The next day, Teller complied, ( Id. ¶ 18). On June 15, 2011, DataCell contracted for credit card processing services with Valitor, Defendants' licensee in Iceland. ( Id. ¶¶ 19-20). On July 8, 2011, Valitor, at Defendants' requests, stopped all Visa and MasterCard processing for DataCell. ( Id. ¶ 21).

On December 8, 2014, DataCell filed a four-count Complaint against Visa, Visa Europe, and MasterCard. The Complaint alleged violation of the Sherman Antitrust Act (15 U.S.C. § 1) (Count I), tortious interference with business expectancies and contract (Count II), violation of the Virginia Antitrust Act (Va. Code § 59.1-9.12(b)) (Count III), and civil conspiracy (Count IV). (Compl. ¶¶ 22-42). On May 8, 2015, Visa and MasterCard each filed motions to dismiss DataCell's Complaint.


12(b)(2) Lack of Personal Jurisdiction

Under Federal Rule of Civil Procedure ("FRCP") 12(b)(2), a court may dismiss a case for lack of personal jurisdiction. The plaintiff must establish by a preponderance of evidence that personal jurisdiction exists. Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989). When addressing the 12(b)(2) question on only the complaint and supporting legal memoranda, however, the plaintiff need only make a prima facie showing of jurisdictional basis to survive the motion. Pearson v. White Ski Co., 228 F.Supp.2d 705, 707 (E.D. Va. 2002) (citing Combs, 886 F.2d at 676). The Court must construe all factual allegations in the light most favorable to the nonmoving party. Id. Virginia's long-arm statute is in accord with the limits of the Due Process Clause of the United States Constitution, See English & Smith v. Metzger, 901 F.2d 36, 38 (4th Cir. 1990).

12(b)(1) Standing

While Defendants do not cite a specific rule in arguing lack of standing, motions to dismiss relying on standing are tested under FRCP 12(b)(1) lack of subject matter jurisdiction. See Taubman Realty Grp. Ltd. P'ship v. Mineta, 320 F.3d 475, 480-81 (4th Cir. 2003) (affirming 12(b)(1) dismissal for lack of standing). Courts grant 12(b)(1) motions "only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). The burden of proof for establishing standing is on the party claiming subject matter jurisdiction. Mirant Potomac River, LLC v. EPA, 577 F.3d 223, 226 (4th Cir. 2009).

Standing is a fundamental doctrine that reflects the mandate from Article III of the Constitution that courts may hear only cases and controversies. Summers v. Earth Island Inst., 555 U.S. 488, 492-93 (2009). Article III standing requires (1) injury in fact that is concrete and actual or imminent, (2) a causal connection between the injury and the act(s) complained of, and (3) a likelihood that the court can provide redress. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).

Antitrust standing is a more stringent standard meant to limit standing in antitrust cases to those plaintiffs harmed most directly by the antitrust violation. Pocahontas Supreme Coal Co. v. Bethlehem Steel Corp., 828 F.2d 211, 219 (4th Cir. 1987). Courts determine antitrust standing by weighing five factors: (1) the causal link between the harm alleged and an antitrust violation; (2) whether the alleged harm was of the type Congress intended to rectify in promulgating the antitrust laws; (3) the proximity of the plaintiff to the alleged injury; (4) the existence of other potential plaintiffs more directly harmed by the violation; and (5) the ability of the Court to identify and apportion proper damages. Kloth v. Microsoft, 444 F.3d 312, 324 (4th Cir. 2006) (citing Associated Gen. Contractors of Cal., Inc. v. Cal State Council of Carpenters, 459 U.S. 519, 538, 540, 545 (1983)).

12(b)(6) Failure to State a Claim

A court should grant a 12(b)(6) motion unless the complaint "states a plausible claim for relief under Rule 8(a). Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). The Court "must accept as true all of the factual allegations contained in the complaint." E.I. du Font de Nemours and Co. v. Kolon Indus., Inc., 627 F.3d 435, 440 (4th Cir. 2011) (citations omitted). "Naked assertions, " without factual support, are not enough to carry the plausibility standard. Vitol, S.A. v. Primerose Shipping Co., 708 F.3d 527, 543 (4th Cir. 2013) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Likewise, simply listing the elements of a cause of action will not survive a 12(b)(6). See id. The complaint must allege sufficient facts, taken as true, "to raise a right to relief above the speculative level" and "nudge [the] claims across the line from conceivable to plausible." Twombly, 550 U.S. at 555, 570. In a Sherman Act case, parallel conduct alone is not sufficient factual basis to state a claim when other factors may also justify the conduct. See Robertson v. Sea Pines Real Estate Companies, Inc., 679 F.3d 278, 289 (4th Cir. 2012) (citing Twombly, 550 U.S. at 554).


The Court GRANTS Defendants' Motions to Dismiss because (1) DataCell fails to establish personal jurisdiction with respect to MasterCard because MasterCard, a holding company, is not found, nor does it conduct business in the District as required by Section 12 of the Clayton Act; (2) DataCell fails to establish injury in fact and redressability necessary for Article III standing, and antitrust injury necessary for antitrust standing; and (3) DataCell's Complaint is devoid of any facts that plausibly support a cause of action and as such, DataCell fails to state a claim for relief. Furthermore, it is clear ...

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