United States District Court, E.D. Virginia, Richmond Division
JEREMY G. PERROTT, Plaintiff,
PATRICK COFFEE, et al., Defendants.
MEMORANDUM OPINION (GRANTING DEFENDANTS' MOTION
E. HUDSON, SENIOR UNITED STATES DISTRICT JUDGE
matter is currently before the Court on Patrick Coffee's,
Lindsay Rittenhouse's, 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). 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.
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.
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. (Pl.'s Mem. Opp. 3, 12.)
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.)
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.
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." Id. (internal citations omitted).
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). 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
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).
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
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
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.
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