XMission, L.C. v. Fluent
955 F.3d 833
10th Cir.2020Background:
- XMission (Utah ISP) sued Fluent LLC (Delaware LLC, principal place of business in New York) under the CAN-SPAM Act and related statute for ~10,000 emails sent 2015–early 2018 through XMission servers to >1,100 XMission customers in Utah.
- The emails impersonated retailers and linked to Fluent-controlled data-collection sites that solicited personal information; Fluent contracts with third-party "publishers" who handle email distribution and are paid for triggering actions.
- Fluent submitted a sworn declaration denying it originated, reviewed, or knew recipients’ locations; it disclaimed offices, employees, or property in Utah and reported <0.9% revenue from Utah (≈$3M over the relevant period) with no record tie to the offending emails.
- XMission’s evidence consisted mainly of its complaint and a declaration that ~13% of the offending emails used Utah domain names and some appeared to come from a publisher with a Utah domain; XMission declined to pursue jurisdictional discovery.
- The district court dismissed for lack of personal jurisdiction (no general or specific jurisdiction); the Tenth Circuit affirmed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Specific personal jurisdiction over Fluent in Utah | Fluent purposefully directed mass marketing/emails at Utah residents (harmful-effects) and exploited Utah market; $3M Utah revenue supports jurisdiction | Fluent did not send or control emails, lacked contacts in Utah, and did not know recipients’ locations; publishers, not Fluent, sent emails | No specific jurisdiction; XMission failed to show Fluent knew emails targeted Utah or that injuries arose from Utah-directed activities |
| Harmful-effects (Calder) purposeful-direction test | Fluent knew publishers would broadly distribute emails and therefore should have known some recipients were in Utah; CAN-SPAM liability warning supports foreseeability | Broad awareness of wide circulation is insufficient; need evidence defendant knew recipients were in the forum | Failed under Shrader/Calder: must show defendant knew the forum locations of recipients; XMission produced no such evidence |
| Market-exploitation theory (continuous exploitation of forum market) | Fluent’s ≈$3M revenue from Utah and the email campaign show deliberate exploitation of Utah market | Utah revenue is not shown to derive from the offending emails; website customers are businesses, not Utah recipients of those emails | Failed: plaintiff did not connect Utah revenue/advertising to the conduct giving rise to the claim; no nexus between market exploitation and alleged injuries |
| Attribution to publishers / timing of contacts | Publishers’ actions were intertwined with Fluent’s business and thus attributable; later-post-filing evidence shows Fluent knew emails reached Utah | Publishers are independent (no agency shown); contacts after claim accrual cannot establish jurisdiction over earlier conduct | Failed: XMission didn’t establish agency; jurisdictional contacts must be assessed as of the time the claim accrued; later contacts are irrelevant |
Key Cases Cited
- Walden v. Fiore, 571 U.S. 277 (2014) (due-process requires defendant’s own forum contacts, not plaintiff’s connections, to support jurisdiction)
- Calder v. Jones, 465 U.S. 783 (1984) (express-targeting/harmful-effects supporting jurisdiction where defendant aimed conduct at forum)
- World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) (foreseeability that a product might reach a forum is insufficient for jurisdiction)
- J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873 (2011) (stream-of-commerce awareness of nationwide distribution does not automatically establish forum targeting)
- Shrader v. Biddinger, 633 F.3d 1235 (10th Cir. 2011) (internet mass emails require proof defendant knew recipients’ forum locations to show purposeful direction)
- Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063 (10th Cir. 2008) (purposeful direction where defendant targeted plaintiff in plaintiff’s forum)
- Intercon, Inc. v. Bell Atlantic Internet Solutions, Inc., 205 F.3d 1244 (10th Cir. 2000) (personal jurisdiction where defendant knowingly routed traffic through plaintiff’s forum server)
- Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) (minimum contacts and purposeful availment framework)