Sliding Scale For Personal Jurisdiction in Electronic and Internet Cases
Thomas H. Roberts & Associates, PC scores in its opposition to Top Seek, LLC bid to escape suit in Federal District Court in Richmond, Virginia. Jonathan Arthur, Esq., an associate with the law firm is representing the plaintiff Broad Highway Recovery.
The United States Federal District Court rejected Top Seek LLC’s challenge to personal jurisdiction in an opinion dated 29 November 2018. A court can exercise personal jurisdiction over a non-resident defendant if the defendant has certain minimum contacts with the forum state such that 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). Citing the ALS test, described in ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 712-13 (4th Cir. 2002), the court looked at a sliding scale test to determine whether Top Seek purposefully availed itself of the privilege of conducting activities in Virginia. Using the sliding scale, a court may exercise jurisdiction over a foreign entity that “(l) directs electronic activity into the State, (2) with the manifested intent of engaging in business or other interactions within the State, and (3) that activity creates, in a person within the State, a potential cause of action cognizable in the State’s courts.” Id. In other words, “specific jurisdiction in the Internet context may be based only on an out-of-state person’s Internet activity directed at [Virginia] and causing injury that gives rise to a potential claim cognizable in [Virginia].” Id Under this test, a federal court in Virginia had jurisdiction over a defendant who transmitted spam e-mails through servers in Virginia when the plaintiff’s claims stemmed directly from that activity. Verizon Online Servs., Inc. v. Ra/sky, 203 F. Supp. 2d 601, 620-21 (E.D. Va. 2002). The court found Top Seek purposefully availed itself of the privilege of conducting activities in Virginia and is subject to potential liability in Virginia for those actions. The case by Broad Highway Recovery against Top Seek is proceeding on counts alleging a violation of the Lanham Act and for alleged violations of Virginia Code 18.2-214 and 18.2-216.TopSeek Order