2016 Va. Cir. LEXIS 99
Fairfax Cir. Ct.2016Background
- Kevin P. Lucido (Virginia resident; CEO of Aurora Media, parent of Sports: Unstoppable) sued Tennessee resident Jeffrey Neill Maxwell for online defamation based on posts to the Wrestler Unstoppable game site and a Facebook exchange.
- On Wrestler Unstoppable (posted under a pseudonym), Maxwell accused the owner of Sports: Unstoppable of sexual harassment and claimed a respected employee would corroborate; he did not use Lucido's or Aurora's real names.
- In a Facebook exchange, Maxwell called “Kevin” a derogatory name and referred to alleged sexual harassment by “Mithras” (Lucido’s online pseudonym) and his manager.
- Lucido alleged some of the game site’s hosting/bandwidth is provided by Amazon Web Services servers located in Northern Virginia (per affidavit).
- Maxwell moved to dismiss for lack of personal jurisdiction; Lucido argued jurisdiction under Va. Code § 8.01-328.1(A)(3) and (A)(4).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Va. can exercise jurisdiction under § 8.01-328.1(A)(4) (tortious injury from acts outside VA plus persistent contacts) | Lucido: Injury in VA plus use of a site that relies on VA servers suffices for (A)(4) | Maxwell: No regular business, persistent conduct, or substantial revenue derived from VA | Held: (A)(4) does not apply — plaintiff failed to show regular business/persistent conduct or revenue in VA |
| Whether Va. can exercise jurisdiction under § 8.01-328.1(A)(3) (causing tortious injury by an act in VA) | Lucido: Posts were transmitted through servers located in Northern Virginia, so posting was an “act” in VA under (A)(3) | Maxwell: He was not physically in VA; his computer was not in VA, so no act in VA | Held: Posting to site that uses VA servers arguably satisfies the statute’s “act in Virginia” requirement under (A)(3) |
| Whether exercising jurisdiction satisfies Due Process (minimum contacts/purposeful availment) | Lucido: Injury in VA and routing through VA servers show contacts sufficient for jurisdiction | Maxwell: No purposeful availment of VA; posts didn’t target VA or reference VA-resident/company; no evidence he knew servers were in VA | Held: Due Process not satisfied — no meaningful contact with VA or intent to target VA audience (Walden control) |
| Whether overall personal jurisdiction exists | Lucido: Statute + server routing + harm in VA support jurisdiction | Maxwell: Statute claims fail and constitutional limits bar jurisdiction | Held: Motion to dismiss for lack of personal jurisdiction granted; Virginia court cannot constitutionally exercise jurisdiction over Maxwell |
Key Cases Cited
- Glumina Bank v. D. C. Diamond Corp., 259 Va. 312, 527 S.E.2d 775 (Virginia 2000) (long-arm statute aims to reach nonresidents only as due process permits)
- International Shoe Co. v. Washington, 326 U.S. 310 (U.S. 1945) (minimum contacts test for due process)
- World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (U.S. 1980) (defendant must reasonably anticipate being haled into forum)
- ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707 (4th Cir. 2002) (distinguishing specific and general jurisdiction)
- Bochan v. La Fontaine, 68 F. Supp. 2d 692 (E.D. Va. 1999) (use of a Virginia-based service to post online statements constituted an act in Virginia)
- Walden v. Fiore, 134 S. Ct. 1115 (U.S. 2014) (forum contacts must arise from defendant’s own actions; plaintiff’s forum injury alone insufficient)
- Stover v. O’Connell Assocs., Inc., 84 F.3d 132 (4th Cir. 1996) (statutory and constitutional jurisdictional inquiries merge)