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Perrott v. Coffee

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

December 16, 2019

JEREMY G. PERROTT, Plaintiff,
v.
PATRICK COFFEE, et al., Defendants.

          MEMORANDUM OPINION (GRANTING DEFENDANTS' MOTION TO DISMISS)

          HENRY E. HUDSON, SENIOR UNITED STATES DISTRICT JUDGE

         This matter is currently before the Court on Patrick Coffee's, Lindsay Rittenhouse's[1], and Adweek, LLC's ("Defendants") Motion to Dismiss, filed on October 24, 2019 (ECF No. 13). Jeremy Perrott ("Plaintiff) filed this suit on July 12, 2019 (Compl., ECF No. 1), and Defendants now seek to dismiss Plaintiffs Complaint pursuant to Federal Rule of Civil Procedure 12(b)(2).[2] The parties fully briefed the issues, and the Court heard oral argument on the issue of personal jurisdiction on December 12, 2019. For the reasons that follow, the Court will grant Defendants' Motion to Dismiss.

         Pursuant to Federal Rule of Civil Procedure 12(b)(2), this Court draws "all reasonable inferences arising from the proof, and resolve[s] all factual disputes, in the plaintiffs favor." Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir. 1993). Viewed through this lens, the facts are as follows.

         Jeremy Perrott is a "citizen of the United Kingdom, and a resident of Hong Kong and Australia." (Compl. ¶ 5.) He served as the Global Chief Creative Officer ("CCO") for McCann Health from 2008 to 2018. (Id. ¶¶ 5, 17.) Defendant Adweek is a Delaware limited liability company with its principal place of business in New York. (Compl. ¶ 9; Defs.' Mem. Supp. 2, ECF No. 14.) "It publishes the trade publication Adweek, which covers the advertising industry." (Defs.' Mem. Supp. 2.) Defendant Patrick Coffee is a resident of New York, who is employed at Adweek as a "blogger, writer, and senior editor." (Defs.' Mem. Supp. 2; Compl. ¶ 6.) Defendant Lindsay Rittenhouse is a resident of New Jersey and is now employed by Adage, but was a "blogger and writer for Adweek" in New York at the time of the events alleged by Plaintiff. (Defs.' Mem. Supp. 3; Compl. ¶ 7.) Plaintiff alleges jurisdiction pursuant to Virginia's long-arm statute, specifically, Va. Code §§ 8.01-328.1(A)(3) and (A)(4), as well as the Due Process Clause of the United States Constitution.[3] (Pl.'s Mem. Opp. 3, 12.)

         On June 12, 2018, Plaintiff was fired from his position with McCann Health. (Compl. ¶ 17.) Following his termination, Defendant Adweek published an article (the "First Article") reporting that, among other things, Plaintiff was "no longer with the company" and that he had been fired for "unspecified behavioral violations." (Defs.' Mem. Supp. 4.) Defendant Coffee wrote the First Article in New York. (Id.) Later that day, he and Defendant Adweek each tweeted links to the article from New York. (Id. at 4-5.)

         Plaintiff subsequently initiated a lawsuit against his former employer's parent companies, asserting claims relating to his firing. (Id. at 5.) Defendant Adweek reported on this lawsuit, employing Defendants Coffee and Rittenhouse to write another article (the "Second Article"). (Id.) Defendant Coffee attempted to contact Plaintiffs counsel for a comment but was unsuccessful. (Id.) Defendant Rittenhouse tweeted a link to the Second Article once it was published. (Id.) As was the case for the First Article, neither the publication nor the tweet was completed in Virginia. (Id.) In response to the articles and tweets, Plaintiff brings this action against Defendants, asserting claims for defamation per se and gross negligence. Defendants now seek to dismiss Plaintiffs Complaint.

         A motion made pursuant to Federal Rule of Civil Procedure 12(b)(2) challenges the court's exercise of personal jurisdiction over a defendant. "When a court's personal jurisdiction is properly challenged ... the jurisdictional question thereby raised is one for the judge, with the burden on the plaintiff ultimately to prove grounds for jurisdiction by a preponderance of the evidence." Mylan Labs., Inc., 2 F.3d at 60 (citations omitted). "If the existence of jurisdiction turns on disputed factual questions the court may resolve the challenge on the basis of a separate evidentiary hearing." Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989). When, as here, the court is asked to decide personal jurisdiction without an evidentiary hearing, it may do so based solely on the motion papers, supporting legal memoranda and the relevant allegations of the complaint. Mylan Labs., 2 F.3d at 60. If the court proceeds in this fashion, "the plaintiff need prove only a prima facie case of personal jurisdiction," with the court drawing "all reasonable inferences arising from the proof, and resolv[ing] all factual disputes, in the plaintiffs favor."[4] Id. (internal citations omitted).

         If Plaintiff makes the requisite showing, Defendant then bears the burden of presenting a "compelling case" that, for other reasons, the exercise of jurisdiction would be so unfair as to violate Due Process. Burger King v. Rudzewicz, 471 U.S. 462, 477-78 (1985).[5] Thus, "for a district court to assert personal jurisdiction over a nonresident defendant, two conditions must be satisfied: (1) the exercise of jurisdiction must be authorized under the state's long-arm statute; and (2) the exercise of jurisdiction must comport with the due process requirements of the Fourteenth Amendment." Carefirst of Md, Inc. v. Carefirst Pregnancy Ctrs., 334 F.3d 390, 396 (4th Cir. 2003).

         The Supreme Court of Virginia has interpreted Virginia's long-arm statute, Va. Code § 8.01-328.1(A), to confer jurisdiction "over nonresidents who engage in some purposeful activity in Virginia, to the extent permissible under the Due Process Clause of the Constitution of the United States." Nan Ya Plastics Corp. U.S.A. v. DeSantis, 377 S.E.2d 388, 391 (Va. 1989). Thus, according to the United States Court of Appeals for the Fourth Circuit, the statutory and constitutional inquiries merge, and the reviewing court is not required "to go through the normal two-step formula for determining the existence of personal jurisdiction." Owens-Illinois, Inc. v. Rapid Am. Corp. (In re Celotex Corp.), 124 F.3d 619, 627-28 (4th Cir. 1997).[6]

         Under the Due Process Clause, a court may exercise personal jurisdiction over a nonresident defendant only if the defendant has "certain minimum contacts" with the forum state "such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). When determining specific personal jurisdiction, the Fourth Circuit "consider[s] (1) the extent to which the defendant 'purposefully avail[ed]' itself of the privilege of conducting activities in the State; (2) whether the plaintiffs' claims arise out of those activities directed at the State; and (3) whether the exercise of personal jurisdiction would be constitutionally 'reasonable.'" ALS Scan, Inc. v Digital Service Consultants, Inc., 293 F.3d 707, 712 (4th Cir. 2002). With regard to electronic activities and contacts, the Fourth Circuit's test has been synthesized, and the Court should ask whether "(1) each defendant 'manifested an intent to direct [its internet activity]' to a 'Virginia audience,' such that the defendant 'should reasonably anticipate being haled into court' in Virginia; and (2) whether each defendant's activity 'creates, in a person within the State, a potential cause of action' under Virginia law." Gilmore v. Jones, 370 F.Supp.3d 630, 653-54 (W.D. Va. 2019) (collecting cases from the Fourth Circuit).

         In this case, Defendants' contacts with Virginia are sparse, and Plaintiff fails to provide any evidence that Defendants specifically directed the publication of the articles or tweets to a Virginia audience. Although 2% of Defendant Adweek's total subscribers and 1.2% of its paid subscribers are located in Virginia, this subscribership is "random, fortuitous, and attenuated" given that Defendant Adweek caters to a "nationwide marketplace of consumers." FireClean, LLC v. Tuohy, Case No. 1:16-cv-0294, 2016 U.S. Dist. LEXIS 96294, at *20-21 (E.D. Va. July 21, 2016) ("Contacts of that kind do not indicate purposeful targeting of a Virginia audience."). The Gilmore Court reiterated this point, stating that

The fact that a defendant's website can "be accessed anywhere, including Virginia, does not by itself demonstrate that the [defendant was] intentionally directing [its internet activity] to a Virginia audience." "Something more than posting and accessibility is needed"-the "general thrust and content" of the online publications must "manifest an intent to target and focus on Virginia readers."

370 F.Supp.3d at 653 (internal citations omitted) (quoting Young v. New Haven Advocate, 315 F.3d 256, 263 (4th Cir. 2002)). Furthermore, because Defendant Adweek's publications fail to purposefully target a Virginia audience, it is plain that Defendants Coffee's and Rittenhouse's tweets and contributions to these publications also fail to demonstrate such purposeful targeting. Thus, Plaintiff can point to no behavior of Defendants that manifests the intent required, and the fact that the Martin Agency is located in Richmond, Virginia is insufficient to suggest as much.[7]

         Consequently, the Court finds that Defendants did not have minimum contacts with Virginia because they did not manifest an intent to direct their articles and tweets to a Virginia audience. See id Since Plaintiff fails to satisfy the first and second prongs of the Gilmore personal jurisdiction analysis, the Court need not reach the final step of the inquiry. Therefore, the Court concludes that Defendants' contacts with Virginia do not justify a Virginia ...


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