Case 3:10-cv-00052-NKM-BWC Document 110 Filed 08/22/11 Page 1 of 33 Pageid#: 1303
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF VIRGINIA
`CHARLOTTESVILLE DIVISION
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`JASON JACKSON,
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`CASE NO. 3:10-cv-00052
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`MEMORANDUM OPINION
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`JUDGE NORMAN K. MOON
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` Plaintiff,
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`v.
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`CHRISTOPHER MICHALSKI, ET AL.,
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`Defendants.
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`This matter is before the Court upon several motions to dismiss filed by Defendants (see
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`docket nos. 14, 15, 17, 19, 21, 26, 44, 48, 51, 53, 55) and upon a motion requesting discovery on
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`jurisdictional issues filed by Plaintiff (docket no. 105). Defendants assert under Federal Rule of
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`Civil Procedure 12(b) a lack of personal jurisdiction, insufficient process, and a failure to state a
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`claim for which relief can be granted. The issues have been fully briefed, and the parties were
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`heard on June 22, 2011.
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`For the reasons stated below, I find that no personal jurisdiction exists over the
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`defendants Christopher Michalski, Intercollegiate Studies Institute, Inc., and John Zmirak, and
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`accordingly dismiss the complaint in its entirety as to those defendants. On the Rule 12(b)(6)
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`motions to dismiss brought by Takimag.com, LLC and Richard Spencer, I will dismiss Counts
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`XVII to XX (misappropriation of name or likeness) and Count XXV (copyright infringement)
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`without prejudice; the remainder of the claims are meritless and will be dismissed with prejudice.
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`The motion for additional discovery will be denied.
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`Case 3:10-cv-00052-NKM-BWC Document 110 Filed 08/22/11 Page 2 of 33 Pageid#: 1304
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`I. BACKGROUND
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`Jason Jackson (“Plaintiff”) filed this suit pro se on October 8, 2010, and amended his
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`complaint on February 14, 2011. The named defendants are Christopher Michalski, Richard
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`Spencer, Intercollegiate Studies Institute, Inc. (“ISI”), Taki Theodoracopoulos, Takimag.com,
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`LLC, and John Zmirak (collectively, “Defendants”). The allegations, which I must accept as
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`true, are as follows. This action arises out of the posting of an article entitled “Confessions of a
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`Punk-Rock Traditionalist” on October 9, 2008 to Takimag.com, an “online magazine” that caters
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`to “independent conservatives.” Pl.’s Am. Compl. Ex. A. The article in question was available
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`on the website in its original form until October 14, 2008, when it was revised as a result of
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`Plaintiff’s complaints. Id. at ¶ 3.1 Although “Paul Santos” posted the article, id. at Ex. A, it is
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`fairly implied in the amended complaint that Michalski authored the article, see, e.g., id. at ¶ 8
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`(referring to “Mr. Michalski’s plagiarized ‘article’”); id. at ¶ 25.2 The article describes
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`Michalski’s personal transformation from serving as the frontman of “a string of wildly socially
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`unacceptable bands” to joining the “conservative movement.” Id. at Ex. A. The article describes
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`Michalski’s bandmate, “Jason,” as “a big, beer-heavy rugby player who, with or without
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`medication, likes to be called ‘Hawg.’” Id. The article also describes “Jason” as a “clinically
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`schizophrenic bass player.” Id. It states that “Jason introduced himself as Waygood Ellis, ‘a
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`TRUE son of the Confederacy!’” to an audience of concertgoers at a performance in Roanoke,
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`Virginia. Id. The article also describes how Jason unveiled to the audience an art piece
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`consisting of a wooden box with “prison bars [] completely wrapped in pornography. It was
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`horrible beyond belief—not run-of-the-mill Playboy stuff but ‘you’re going to jail for that’
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`nastiness.” Id. Plaintiff is the “Jason” described in the article. Id. at ¶ 43. Plaintiff claims that
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`1 The article in its original form remained accessible in a “Google cache” for over one year from its date of posting.
`Pl.’s Am. Compl. ¶ 65.
`2 “Paul Santos” is not a party to this litigation and may be an assumed name of Michalski.
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`Case 3:10-cv-00052-NKM-BWC Document 110 Filed 08/22/11 Page 3 of 33 Pageid#: 1305
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`“Waygood Ellis” is “a recognized and copyrighted” penname of his, id. at ¶ 11, and that “Hawg”
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`or “Hog” is “a recognized nick-name of Plaintiff known among Mr. Jackson’s intimates,” id. at
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`¶ 12. Michalski “borrowed the idea, concept, and storyline of [the article] from an immediately
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`prior phone conversation with Mr. Jackson,” and from an unpublished short story. Id. at ¶ 25.
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`The art piece referred to in the article is Plaintiff’s artwork entitled Untitled I- IX, and Plaintiff
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`alleges that any reasonable, prudent observer would not find the artwork to incorporate hardcore
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`pornography. Id. at ¶ 67. The article also featured a photograph of Plaintiff. Id. at ¶ 44.
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`Two business entities and several of their employees were involved in the creation and
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`posting of the article. Takimag.com, LLC apparently owned the website Takimag.com and
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`employed Theodoracopoulos as “Editor and Publisher” and Spencer as “Managing Editor.” Id.
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`at ¶ 3. The second entity, ISI, supplied the article for free to Takimag.com, LLC through
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`Michalski, who is employed by ISI as the Director of Sales and Marketing for ISI Books. Id.
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`Zmirak is employed with both Takimag.com, LLC and ISI. Id.
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`Several of the causes of action arise out of events separate from the posting of the article.
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`It is alleged in the complaint that Michalski “was clearly defaming Mr. Jackson’s name through
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`slander the entire period of his employment at ISI” through conversations with coworkers about
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`Plaintiff. Id. at ¶ 9. Separately, the amended complaint asserts that Michalski, with the
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`assistance of Zmirak, employed the names “Waygood” or “Waygood Ellis” on the websites of
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`Amazon, Facebook, and Myspace. Id. at ¶ 13. The unspecified uses of Jackson’s purported
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`pennames “benefit[ted] ISI and Mr. Michalski in his employment and in his personal life.” Id. at
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`¶ 18. Later in the amended complaint, it is asserted that Michalski used the name “Waygood
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`Ellis” to create a false persona with the purpose of writing favorable reviews of ISI’s books. Id.
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`at ¶ 28. At least one such review was made of a book authored by Zmirak. Id. at ¶ 13.
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`Case 3:10-cv-00052-NKM-BWC Document 110 Filed 08/22/11 Page 4 of 33 Pageid#: 1306
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`The amended complaint contains sixty-six counts against Defendants. Plaintiff requests
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`compensatory damages of $55 million plus interest and costs, punitive damages, and an
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`injunction against Defendants “prohibiting future use of [Plaintiff’s] name, nick-name, likeness,
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`personal description or information, or pen-name, or any other property, in any way, shape, or
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`form.” Pl.’s Am. Compl. The litigation is stayed by court order pending resolution of the instant
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`motions. Defendant Michalski filed a motion to dismiss pursuant to Rule 12(b)(2) (docket no.
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`14), a motion to dismiss pursuant to Rule 12(b)(4) (docket no. 15), and a motion to dismiss
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`pursuant to Rule 12(b)(6) (docket no. 48). Defendant Spencer filed a motion to dismiss pursuant
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`to Rule 12(b)(6) (docket no. 44). Defendant ISI filed a motion to dismiss pursuant to Rule
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`12(b)(2) (docket no. 17), a motion to dismiss pursuant to Rule 12(b)(4) (docket no. 19), and a
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`motion to dismiss pursuant to Rule 12(b)(6) (docket no. 21). Defendant Takimag.com, LLC
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`filed a motion to dismiss pursuant to Rule 12(b)(6) (docket no. 26). Finally, Defendant Zmirak
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`filed a motion to dismiss pursuant to Rule 12(b)(2) (docket no. 51), a motion to dismiss pursuant
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`to Rule 12(b)(4) (docket no. 55), and a motion to dismiss pursuant to Rule 12(b)(6) (docket no.
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`53).3 Also presently before me is Plaintiff’s motion for discovery on jurisdictional issues (docket
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`no. 105).
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`II. APPLICABLE LAW
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`A. Federal Rule of Civil Procedure 12(b)(2)
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`To exercise personal jurisdiction over a nonresident defendant, the plaintiff bears the
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`burden of making a prima facie showing that jurisdiction is authorized by the state’s long arm
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`statute and that the exercise of personal jurisdiction would be consistent with due process under
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`3 Defendant Theodoracopoulos filed a motion to quash service (docket no. 29), which was granted by Magistrate
`Judge B. Waugh Crigler by order dated May 4, 2011. I will address Plaintiff’s objections to the Magistrate Judge’s
`ruling in a separate memorandum opinion and order.
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`Case 3:10-cv-00052-NKM-BWC Document 110 Filed 08/22/11 Page 5 of 33 Pageid#: 1307
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`the U.S. Constitution. See Mitrano v. Hawes, 377 F.3d 402, 406 (4th Cir. 2004).4 “[W]hen . . .
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`the court addresses [personal jurisdiction] on the basis only of [the] motion papers, supporting
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`legal memoranda and the relevant allegations of [the] complaint, the burden on the plaintiff is []
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`to make a prima facie showing of a sufficient jurisdictional basis in order to survive the
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`jurisdictional challenge. In considering [such] a challenge on [this kind of] record, the court
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`must construe all relevant pleading allegations in the light most favorable to the plaintiff, assume
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`credibility, and draw the most favorable inferences for the existence of jurisdiction.” Combs v.
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`Bakker, 886 F.2d 673, 676 (4th Cir. 1989) (citation omitted). But while “the allegations of the
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`complaint must be accepted as true . . . [the] plaintiff cannot rest on these allegations in the face
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`of specific contradictions contained in [the] defendant’s motion and support[ing] [] affidavits.”
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`In re Arthur Treacher’s Franchisee Litig., 92 F.R.D. 398, 410 n.11 (E.D. Pa. 1981).
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`Virginia’s long arm statute extends personal jurisdiction to the extent permitted by the
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`Due Process Clause. See English & Smith v. Metzger, 901 F.2d 36, 38 (4th Cir. 1990). Thus,
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`“the statutory inquiry necessarily merges with the constitutional inquiry, and the two inquiries
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`essentially become one.” Stover v. O’Connell Assocs., 84 F.3d 132, 135-36 (4th Cir. 1996). The
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`Due Process Clause requires that the defendant “have certain minimum contacts with [the forum]
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`such that the maintenance of the suit does not offend ‘traditional notions of fair play and
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`substantial justice.’” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). There are two
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`forms of personal jurisdiction: general and specific. Helicopteros Nacionales de Colom., S. A. v.
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`Hall, 466 U.S. 408, 414-15 (1984). General jurisdiction requires “‘continuous and systematic’
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`contacts with the forum state, such that a defendant may be sued in that state for any reason,
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`4 When a defendant challenges personal jurisdiction, the determination of jurisdiction is for the judge. Combs v.
`Bakker, 886 F.2d 673, 676 (4th Cir. 1989). The trial court has three procedural alternatives for making its
`determination. It may: (1) determine jurisdiction on the basis of the complaint and affidavits alone; (2) order
`discovery in aid of the jurisdictional question; or (3) conduct an evidentiary hearing on the merits of the motion to
`dismiss. See id. at 676.
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`Case 3:10-cv-00052-NKM-BWC Document 110 Filed 08/22/11 Page 6 of 33 Pageid#: 1308
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`regardless of where the relevant conduct occurred.” CFA Inst. v. Inst. of Chartered Fin. Analysts
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`of India, 551 F.3d 285, 292 n.15 (4th Cir. 2009) (citations omitted). Where a defendant’s
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`contacts with the forum state provide the basis for the suit, those contacts may establish specific
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`personal jurisdiction. Mitrano, 377 F.3d at 407.5 But a defendant’s contacts “must be directed at
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`the forum state in more than a random, fortuitous, or attenuated way.” ESAB Group, Inc. v.
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`Centricut, Inc., 126 F.3d 617, 625 (4th Cir. 1997) (citing Burger King Corp. v. Rudzewicz, 471
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`U.S. 462, 475 (1985)). “[W]hen the defendant has intentionally directed his tortious conduct
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`toward the forum state, knowing that that conduct would cause harm to a forum resident,” a court
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`“may exercise specific personal jurisdiction over a nonresident defendant acting outside of the
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`forum.” Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 397-98 (4th Cir.
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`2003) (citing Calder v. Jones, 465 U.S. 783, 789-90 (1984)). The United States Court of
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`Appeals for the Fourth Circuit has synthesized the due process requirements for asserting
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`specific personal jurisdiction in a three-part test in which the court considers “(1) the extent to
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`which the defendant purposefully availed itself of the privilege of conducting activities in the
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`State; (2) whether the plaintiffs’ claims arise out of those activities directed at the State; and
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`(3) whether the exercise of personal jurisdiction would be constitutionally reasonable.”
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`Consulting Eng’rs Corp. v. Geometric Ltd., 561 F.3d 273, 278 (4th Cir. 2009).
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`B. Federal Rule of Civil Procedure 12(b)(4)
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`Where the procedural requirements of sufficient process are not satisfied, a court lacks
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`power to assert personal jurisdiction over a defendant. Gorman v. Ameritrade Holding Corp.,
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`293 F.3d 506, 514 (D.C. Cir. 2002). The party on whose behalf service is made has the burden
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`of establishing its validity when challenged; to do so, he must demonstrate that the procedure
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`5 “The relevant question is not where the contacts predominate, but only whether enough minimum contacts exist
`that the district court’s assumption of specific jurisdiction satisfie[s] due process.” English & Smith v. Metzger, 901
`F.2d 36, 39 (4th Cir. 1990).
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`employed satisfied the requirements of the relevant portions of Rule 4 and any other applicable
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`provision of law. Light v. Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987). Rule 4 “is a flexible rule
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`that should be liberally construed so long as a party receives sufficient notice of the complaint.”
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`Sanderford v. Prudential Ins. Co. of Am., 902 F.2d 897, 900 (11th Cir. 1990). “When there is
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`actual notice, every technical violation of the rule or failure of strict compliance may not
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`invalidate the service of process.” Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d
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`1087, 1089 (4th Cir. 1984).
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`C. Federal Rule of Civil Procedure 12(b)(6)
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`A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal
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`sufficiency of a complaint to determine whether the plaintiff has properly stated a claim; “it does
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`not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.”
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`Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). In considering a Rule
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`12(b)(6) motion, a court must accept all factual allegations in the complaint as true and must
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`draw all reasonable inferences in favor of the plaintiff. Erickson v. Pardus, 551 U.S. 89, 94
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`(2007). Legal conclusions in the guise of factual allegations, however, are not entitled to a
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`presumption of truth. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950-51 (2009). Although a complaint
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`“does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his
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`entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of a
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`cause of action’s elements will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
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`(citations and quotations omitted). “Factual allegations must be enough to raise a right to relief
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`above the speculative level,” id., with all the allegations in the complaint taken as true and all
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`reasonable inferences drawn in the plaintiff’s favor, Chao v. Rivendell Woods, Inc., 415 F.3d
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`342, 346 (4th Cir. 2005). In sum, Rule 12(b)(6) does “not require heightened fact pleading of
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`specifics, but only enough facts to state a claim to relief that is plausible on its face.” Twombly,
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`550 U.S. at 570. Consequently, “only a complaint that states a plausible claim for relief survives
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`a motion to dismiss.” Iqbal, 129 S. Ct. at 1950. Where a court is unable to conceive of any set
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`of facts under which a plaintiff would be entitled to relief, the dismissal should be with prejudice.
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`McLean v. United States, 566 F.3d 391, 400 (4th Cir. 2009). In other words, when a complaint is
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`incurable through amendment, dismissal is properly rendered with prejudice and without leave to
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`amend. Id. (citing Cozzarelli v. Inspire Pharm. Inc., 549 F.3d 618, 630 (4th Cir. 2008)
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`(affirming dismissal with prejudice where amendment would have been futile)).6
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`Although district courts have a duty to construe pro se pleadings liberally, a court is not
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`obliged to ferret through a complaint, searching for viable claims. See Holsey v. Collins, 90
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`F.R.D. 122, 123-24 (D. Md. 1981) (observing that a voluminous, repetitive, and conclusory
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`complaint “places an unjustifiable burden on defendants to determine the nature of the claim
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`against them and to speculate on what their defenses might be,” and “imposes a similar burden
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`on the court to sort out the facts now hidden in a mass of charges, arguments, generalizations and
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`rumors”). In the context of Rule 8, it is clear that a plaintiff must provide enough detail to
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`illuminate the nature of the claim and allow defendants to respond. See Erickson, 551 U.S. at
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`93-94. And, although district courts have a duty to construe pro se pleadings liberally, a pro se
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`plaintiff must nevertheless allege facts that state a cause of action, and district courts are not
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`required “to conjure up questions never squarely presented to them.” Beaudett v. City of
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`Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985) (adding that “[d]istrict judges are not mind
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`6 Federal Rule of Civil Procedure 10(c) provides that a copy of a written instrument that is an exhibit to a pleading is
`deemed a part of the complaint. Thompson v. Greene, 427 F.3d 263, 268 (4th Cir. 2005). In evaluating a motion to
`dismiss, the court may consider documents extrinsic to the complaint if they are “integral to and explicitly relied on
`in the complaint.” Robinson v. Am. Honda Motor Co., 551 F.3d 218, 222-23 (4th Cir. 2009); see also Sec’y of State
`v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007); Davis v. George Mason Univ., 395 F. Supp. 2d 331,
`335 (E.D. Va. 2005). Here, Jackson explicitly referenced in his amended complaint several exhibits that were
`attached to it. It is appropriate to consider those documents for the purpose of deciding this motion.
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`readers”); see also Brock v. Carroll, 107 F.3d 241, 243 (4th Cir. 1997) (Luttig, J., concurring)
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`(stating that district court is not the pro se plaintiff’s advocate, sua sponte developing statutory
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`and constitutional claims the plaintiff failed to raise on the face of the complaint).
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`III. PERSONAL JURISDICTION
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`A. Defendant Michalski
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`Michalski asserts that the Court lacks personal jurisdiction over him because there is no
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`basis for jurisdiction under Virginia’s long arm statute, and there are insufficient minimum
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`contacts with Virginia. Michalski resides in Pennsylvania and works in Delaware.7 He argues
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`that Jackson has failed to make out a prima facie showing of a basis for exercising jurisdiction
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`over him. He claims, without any supporting affidavit, that he does not have any business in
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`Virginia or solicit any business in Virginia, and that the posting of the article in question was in
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`no way related to his employment. Plaintiff, who bears the burden of establishing jurisdiction
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`over Michalski, takes the position that the posting of the article authored by Michalski on the
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`Internet, where it was readily accessible by Internet users in Virginia, constituted a tortious act in
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`Virginia. In other words, Michalski intentionally directed his tortious conduct—the creation of
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`the allegedly defamatory article and supplying of it to a publisher of web content—toward
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`Virginia by providing the article for publication on the Internet. Because the article was readily
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`accessible from Virginia, it was effectively directed to Virginia, argues Jackson.
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`In the context of electronic contacts, a state may exercise judicial power over a person
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`outside of the state when that person “(1) directs electronic activity into the State, (2) with the
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`manifested intent of engaging in business or other interactions within the State, and (3) that
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`activity creates, in a person within the State, a potential cause of action cognizable in the State’s
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`courts.” ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 714 (4th Cir. 2002).
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`7 Michalski has not submitted an affidavit to support this assertion. Nonetheless, this fact is not questioned.
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`Thus, “a person’s act of placing information on the Internet” is not sufficient by itself to
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`“subject[] that person to personal jurisdiction in each State in which the information is accessed.”
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`Id. at 712. The Fourth Circuit’s decision in Young v. New Haven Advocate, 315 F.3d 256 (4th
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`Cir. 2002) is directly applicable to this case.8 There, the court addressed whether a Virginia
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`district court had personal jurisdiction over foreign defendants in a libel suit brought by the
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`warden of a Virginia prison against two Connecticut newspapers. The warden’s allegations
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`stemmed from the newspapers’ coverage of conditions in the prison, which housed numerous
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`Connecticut prisoners. In their motion to dismiss for lack of personal jurisdiction, the
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`newspapers pointed out that both publications were printed and distributed in Connecticut. One
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`of the newspapers had no mail subscribers in Virginia, and the other had just eight. Neither
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`solicited subscriptions from Virginia residents, and neither had officers or employees there. No
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`one from either newspaper—not even the reporters—had traveled to Virginia to work on the
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`articles. Two reporters made a few telephone calls into Virginia to gather information, but the
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`newspapers otherwise had no direct contact with the Commonwealth. Id. at 259-60.
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`In response, the warden noted that the newspapers posted the allegedly defamatory
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`articles on Internet websites that were accessible to Virginia residents. He also observed that the
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`newspapers’ websites contained real estate, employment, and other advertising content, and he
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`argued that such content was designed to target and attract out-of-staters, such as Virginians.
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`Thus, the warden contended, the Virginia court possessed personal jurisdiction over the
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`Connecticut defendants because (1) the newspapers, knowing that the warden was a Virginia
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`resident, intentionally defamed him in their articles; (2) the newspapers posted the articles on
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`Virginia-accessible websites that were designed to attract an out-of-state audience; and (3) the
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`8 In my summary of the Young case, I draw liberally from the Fourth Circuit’s thorough description of the case set
`forth in Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 400 (4th Cir. 2003).
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`primary effects of the defamatory statements on the warden’s reputation were felt in Virginia.
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`Id. at 261-62. Despite the warden’s showing of these Virginia connections, the court held that
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`the Connecticut newspapers did not post materials on their Internet sites with the “manifest
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`intent” of targeting readers in Virginia, and hence that a Virginia court lacked personal
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`jurisdiction over the newspapers. Id. at 264. In rejecting the warden’s argument and finding in
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`favor of the defendant newspapers, the court reasoned that something more than posting the
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`article and its accessibility to users in other states was needed to indicate that the newspapers
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`purposefully (albeit electronically) directed their activity in a substantial way to Virginia. Id. at
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`263. Evidence of the purposeful focus on Virginia readers was lacking in light of the fact that
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`“the [newspapers’] websites are not designed to attract or serve a Virginia audience” and
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`“Connecticut, not Virginia, was the focal point of the [allegedly libelous] articles.” Id. at 263-64.
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`Because the “newspapers did not post materials on the Internet with the manifest intent of
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`targeting Virginia readers,” they “could not have ‘reasonably anticipated being haled into court
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`[in Virginia].’” Id. (quoting Calder, 465 U.S. at 790).
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`Applying the principles set forth in ALS Scan and Young to this case, I find that
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`Michalski did not purposefully direct activity into Virginia with the manifested intent of
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`interacting with others in the state. Neither the article that he authored nor the website on which
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`the article was published targeted a Virginia audience. The article itself focused on Michalski’s
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`transition from a nonconforming “member of the Goth-club underground” to a religious,
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`conservative parent of four children he was homeschooling. Although the article describes a
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`concert that Michalski staged in Roanoke, Virginia for the opening of an art gallery there, the
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`purpose of recounting the musical performance was not to provide information to Virginia
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`residents about the art gallery or concert. Rather, it was meant to capture “an episode” from the
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`phase of Michalski’s life in which he engaged in “confrontational performance art.” Jackson
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`appeared in the article because he was the lone member of Michalski’s band who was willing to
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`continue playing with Michalski. But the focus of the article was on the personal transformation
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`of Michalski; Jackson was a secondary character. I observe nothing about the article that would
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`lead me to believe it would be of particular importance to a Virginia reader, as opposed to a
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`national audience. There is no indication that the website Takimag.com specifically reaches out
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`to Virginia readers. Billed as “[t]he online magazine for independent conservatives,” the
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`screenshot of the Takimag.com website shows that its advertisers include the international
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`retailer Amazon.com, and topics covered by the webzine are national in scope, such as “Iraq
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`war,” “Immigration,” “Nationalism,” “McCain,” and “Obama.” The mere creation of the article
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`and the posting of it on the Internet, without more, does not meet the requirements for personal
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`jurisdiction in this circuit. The activities undertaken by Michalski and/or Zmirak with the names
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`“Waygood” or “Waygood Ellis” on the websites of Amazon, Facebook, and Myspace also do not
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`constitute sufficient electronic contacts with Virginia to support personal jurisdiction over
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`Michalski. These activities are barely detailed in the complaint, other than that Michalski used
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`Jackson’s penname to write a review of a book online. It is not alleged that any of this electronic
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`activity was directed into Virginia to engage in interactions within the state or with Jackson.
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`Jackson asserts another ground for establishing specific jurisdiction over Michalski. He
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`believes jurisdiction can be shown based upon Michalski’s efforts to sell books in Virginia for
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`his employer ISI. I observe that Jackson’s amended complaint does not present any allegation
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`that Michalski engaged in sales efforts in Virginia. Nonetheless, Jackson argues that Michalski
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`“acts as the Director of Sales and Marketing for ISI Books, a large and substantial enterprise; it is
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`beyond reasonable belief that Mr. Michalski as such has managed not to direct his Sales and
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`Case 3:10-cv-00052-NKM-BWC Document 110 Filed 08/22/11 Page 13 of 33 Pageid#: 1315
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`Marketing efforts to this state.” Pl.’s Resp. to Def. Michalski’s Mot. Dismiss Under Rule
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`12(b)(2) at 3. Michalski denies that he has or solicits any business in Virginia. Where it is
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`Plaintiff’s burden to make the prima facie showing of jurisdiction and Plaintiff has made no
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`relevant allegations for this Court to construe in Plaintiff’s favor, Plaintiff has probably failed to
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`meet his burden. Because it is my duty to draw all inferences in favor of jurisdiction, and
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`Michalski has not attested by affidavit to any specific facts to contest jurisdiction, I will proceed
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`under the assumption that Michalski did conduct sales activities in Virginia.9 The contacts with
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`Virginia arising from his sales activities, however, do not form the basis for this suit, and
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`therefore cannot support specific jurisdiction over Michalski. The second prong of the Fourth
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`Circuit’s specific personal jurisdiction test fails—the claims do not arise out of the purported
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`activities directed at Virginia. See Consulting Eng’rs, 561 F.3d at 278.
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`Plaintiff also cannot show general personal jurisdiction. The level of contacts needed to
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`confer general jurisdiction is “significantly higher than for specific jurisdiction.” ESAB Group,
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`126 F.3d at 623. To show continuous and systematic contacts with the forum state, the
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`defendant “must be engaged in longstanding business in the forum state, such as marketing or
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`shipping products, or performing services or maintaining one or more offices there; activities that
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`are less extensive than that will not qualify for general in personam jurisdiction.” Cossaboon v.
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`Me. Med. Ctr., 600 F.3d 25, 32 (1st Cir. 2010) (quoting 4A Charles Alan Wright & Arthur R.
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`Miller, Federal Practice and Procedure § 1067.5 (3d ed. 2002)). Plaintiff only alleges in a
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`conclusory fashion that Michalski’s “activities in the forum state (Virginia) are clearly
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`systematic and continuous.” Pl.’s Am. Compl. ¶ 1(e)(i). In his argument, Jackson asserts that
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`Michalski engaged in selling books to customers in Virginia, he made phone calls and sent
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`9 Assuming this fact obviates the need for discovery on the actual extent of Michalski’s business activities in
`Virginia.
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`emails to persons in Virginia, he attended conferences in Virginia, and he maintains websites
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`through a business entity in his control that are accessible in Virginia. But there is no claim that
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`any sales efforts in Virginia were so persistent, substantial, or longstanding as to satisfy the
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`requirements for general jurisdiction. Plainly, general jurisdiction over Michalski does not exist
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`based on these assertions. Further discovery on phone calls made by Michalski and visits made
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`to Virginia would not be availing. The claims against Michalski will be dismissed for lack of
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`jurisdiction.
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`B. Defendant ISI
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`Jackson alleges that ISI “deliver[s] [its] products into the stream of commerce with the
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`expectation that they will be purchased by consumers in the forum state” and that ISI “has a
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`healthy stream of products—books—that [it] sell[s] in the Commonwealth of Virginia.” Pl.’s
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`Am. Compl. ¶ 1(b). Jackson concludes that ISI’s “activities in the forum state (Virginia) are
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`clearly systematic and continuous.” Id. at ¶ 1(e)(i). Jackson further asserts in his briefing that
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`ISI has “a large number of financial supporters, with whom it corresponds in various ways, in
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`Virginia.” Pl.’s Resp. to ISI’s Mot. Dismiss Under Rule 12(b)(2) at 3. According to the affidavit
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`of Douglas Mills, the Executive Vice President of ISI, ISI is a non-profit corporation organized
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`under the laws of the District of Columbia and located in Wilmington, Delaware. ISI has no
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`office in Virginia, but it sells books to purchasers in Virginia, presumably through direct sales
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`over the Internet and through brick-and-mortar retail booksellers.
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`The bar is set high for a plaintiff to show general personal jurisdiction over a defendant
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`based upon the defendant’s business sales in the forum state. ISI is not based out of Virginia, it
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`does not have a physical location in Virginia, and there is no indicatio