*1 A.2d SYSTEMS, INC. BEYOND COMPANY, LLC, еt al. HOLDING GAMING REALTIME 119, Sept. Term, 2004. No. Maryland. Appeals
Court of June 2005. Aug. Denied
Reconsideration *3 P.C., H. H. Stephen Ring (Stephen Ring, Gaithersburg, brief), for Appellant. (Kenneth Saunders, *4 M. Kaplan, Greenberg
Sanford Jr. P. LLP, DC), on brief for Traurig, Washington, Appellees. BELL, RAKER, WILNER, C.J., Argued Before CATHELL, HARRELL, GREENE, BATTAGLIA JJ.
BATTAGLIA, Judge. 14- premised upon
This case arises out of civil suit Section Code, of the Maryland 3002 of the Commercial Law Article unauthorized, false, conspiring to disseminate prohibits (“e-mail”). Be- electronic mail information via misleading or Petitioner, Inc. Beyond Systems, that cause we determine that (“BSI”), Respon- establish a case prima did not facie (“KDMS”) International, Realtime dents, KDMS LLC (“Realtime Gaming”), pos- LLC Gaming Holding Company, amounting purposeful- minimum contacts requisite sess conducting of the benefits of business ly themselves availing that ruling Maryland, agree we with Circuit Court’s Respondents. over More- personal court lacked over, that did not abuse its conclude the Circuit Court we on the by denying discoveiy personal discretion Petitioner striking complaint. issue and the amended
Background KDMS, a business that interactive develops proprietary industry, used in the online is a limited gaming software2 (“LLC”) liability formed under the laws of State company Atlanta, Delaware, of its of business principal place with KDMS, company Realtime for Georgia. Gaming, holding of liability company is a limited formed under the laws Atlanta, its Georgia principal place State with of business The two businesses share the same President and Georgia. Officer, Chief Executive Michael Staw. part marketing
As of Realtime sales and Gaming’s strategy software, for the KDMS entered into an Overseas, licensing agreement exclusive Montana a Pana- corporation, by manian which Montana Overseas would be for licenses responsible issuing for the use KDMS’s soft- two-way system 1. "a Interactive defined as electronic communication responses.” ... a user’s orders ... involves or Merriam-Webster ed.2002). (10th Dictionary, "interactive” used, redistributed, Proprietary software is that cannot be "[s]oftware permission. usually Proprietary or modified without software is sold code, profit, only for consists and carries a limited machine-readable modification, copying, license that restricts and redistribution. A user use; may usually backup copy make a but if the software is away, any given backup copies passed to the sold or must be new (8th destroyed.” "proprietary software” user ed.2004). Dictionary, Black’s Law *5 Overseas, licensing process with Montana Through ware. windowscasino.com, by is ADLM Ltd. based which owned Helier, Jersey, right obtained the to use Kingdom, St. United the KDMS software its online casino. Windowscasino.com promotes only games an interactive online casino that by KDMS. designed Thom,
In March of Travis a resident of Albuquerque, Mexico, an Internet for found advertisement New explained “www.windowscasino.com.” The advertisement how for individuals could become “affiliates” of windowscasino.com to money by referring players a small investment and make of During windowscasino.com’s website. the first weeks two March, by Thom contacted telephone windowscasino.com to a sales for about becom- spoke associate windowscasino.com ing employee relationship “affiliate.” described the and informed Thom that he would with windowscasino.com a Private Label purchase Package” have “Casino-To-Go taxes. plus applicable $999.00 14, 2003, Thom
Around March visited the www.windowscasi- completed no.com website and an “affiliate” application make the which was confirmed the next a purchase, day employee receipt windowscasino.com e-mail. through Upon Label Thom created a Package,” “Casino-To-Go Private name for his affiliate webpage, www.goldenrhinocasino.com, Domains,3 which he in his оwn name Yahoo! registered registers service names websites. Windowscasino.com designed webpage, input regarding then Thom’s with his aesthetics, but not the content or webpage function. Thom’s directed to the players windowscasino.com website where KDMS, gamblers designed by downloaded the software (Internet address) from an IP was retrieved address Protocol primary 3. “Domain names serve as a of an Internet user.” identifier Inc., Zippo Manufacturing Zippo F.Supp. Co. Dot Com (W.D.Pa.1997), Intern., citing Toeppen, 1121 n. 1 Panavision L.P. v. (C.D.Cal.1996). F.Supp. using commonly "Businesses the Internet (e.g.IBM.com).” part use their business names as name domain designation entity.” Id. “The ‘.com’ identifies the user as commercial Id. In return for registered directing KDMS. individuals to *6 windowscasino.com, be compensated Thom would with 45% of to a players’ up “bounty” per player referred losses and $40.00 deposited gamble who funds windowscasino.com. 14, 2003,
On Thom contracted with a bulk e-mail April Inc., service, Media, 2.5 million Omega solicitation One to send unsolicited e-mail He paid advertisements.4 windowscasi- no.com an additional fee to and the e-mails. design write On 26, 2003, sixteen e-mail addresses of April by employees used BSI each received fifteen such unsolicited commеrcial e-mails e-mails, a of twenty-four period, over a hour for total Rhino advertising Golden Casino. 31, 2003, December filed a Real- complaint against
On BSI KDMS, an in the Gaming, time and unknown co-defendant Montgomery County alleged Circuit Court for and violations (2002, Code Section 14-3002 of Cum.Supp.), April the Commercial Law Article.5 On Realtime Media, Omega any One Inc. related to of the in is not entities named present in action and is not named this lawsuit. provides: 5. Section 14-3002 of the Law Article Commercial (a) Application. apply section does interactive com- not an —This puter provider utility service or a telecommunication to the extent computer provider that the interactive service or telecommunication handles, retransmits, utility merely or carries a transmission of com- mercial electronic mail. (b) transmission, person may conspire Prohibition.—A not initiate the transmission, person with another to initiate or assist in the transmission of commercial electronic mail that: computer Is from a in the State or is sent to an electronic mail address that knows or the sender should have known is held State; resident of the (2)(i) party’s Uses a third Internet domain name or electronic mail permission pаrty; address without the of the third (ii) misleading origin Contains false or information about the or mail; path the transmission of the commercial electronic or (iii) misleading subject Contains false or information in the line tendency, capacity, deceiving recipient. that has the or effect (c) Presumption. person presumed in to know that the intended —A recipient of commercial electronic mail is a resident of the State if request registrant the information is available on from the recipient’s Internet name in domain contained electronic mail address. for complaint and KDMS filed a motion to dismiss
Gaming a motion for jurisdiction, lack the alternative motion, Realtime support In of their summary judgment. from their mutual Gaming and KDMS attached affidavit (“Staw”) CEO, asserted that President and Michael Staw who Gaming solely holding company Realtime functions as activities, and does not other business engage KDMS Maryland. no business in BSI and that KDMS has conducted opposition Gaming filed a memorandum Realtime motion and attached a affidavit from supporting KDMS’s owner, he (“Wagner”), Paul asserts Wagner BSI’s of an conclusory concerning statements existence various KDMS, agency relationship Gaming, between 21, 2004, Realtime May windowscasino.com.6 On *7 memorandum, a to refute reply attempting KDMS filed BSPs allegations. and, 26, 2004, held a May hearing the Circuit Court
On close, intention to the com- hearing’s the stated its dismiss 2, 2004, jurisdiction. the plaint personal for lack of On June that complaint court issued a order dismissed BSPs written Gaming for lack of over Realtime and did not that BSI would have leave to specify KDMS 11, 2004, a complaint.7 amend the On June BSI filed motion (d) Blocking. computer provider: interactive service —An (1) through May receipt or transmission its interactive block reasonably computer electronic mail it service of commercial section; apparent will believes is or be sent violation of this (1) May not be held liable for an action under item if this good voluntarily faith. subsection that is taken (2002, Cum.Supp.), § Md.Code 14-3002 of the Commercial Law Article. affidavit, Wagner significant relationship that a In his asserts exists Gaming among and KDMS and in which "the Realtime "affiliates” (and principal egos) employ spamver- ... merchants alter affiliates to "pay[ products,” companies their and the two affiliates to adver- ] tise potential Throughout proprietary players.” to tise KDMS's software affidavit, characterizes, Wagner support, his without windowscasi- Gaming interchangeable and Realtime and KDMS as entities. no.com contemplated of dismissal the written 7. Because oral statement order, court, by the trial it the date of the which was later issued an In complaint for reconsideration with amended attached. complaint, specific allegations regard- the amended BSI made KDMS, Gaming, the connection between Realtime win- ing dowscasino.com, IP through and Thom a server and address alleged significant to KDMS. It also a registered relationship KDMS, among Gaming, Realtime and a of sub- network licensees, one of which assisted in the transmission of the e- Moreover, mails at issue. it Thom as named Travis in question additional defendant who caused the e-mails to be sent. KDMS, turn, oppos- filed motion
ing BSPs motion for reconsideration and seeking have stricken. In complaint doing, amended so Realtime Gaming asserted that no KDMS BSI offered new facts that would personal jurisdiction establish them. On September over 2004, the Circuit Court denied BSPs motion for reconsidera- tion and granted motion to strike the amended complaint. 20, 2004,
On October BSI filed its notice of appeal.8 Prior BSI, in the any proceedings Court of Special Appeals, issuance of the written order that constitutes the date of thе filial Walbert, appealable judgment. See Walbert v. 310 Md. (1987). A.2d The Circuit Court failed to dismiss "John Doe” Doe,” although from the suit. Because "John named as a defendant in complaint, process never was served with and was never identified person, party as real "John Doe” is not a action and the Circuit prevent Court’s failure to dismiss him from the suit does not See, Co., judgment being e.g., Funding from final. Jones Mid-Atlantic *8 661, 2, 617, (2001) (noting 362 Md. 665 n. 766 A.2d 618 n. complaint party defendant named the was not a to the action because served); 396, 406, Nursing Nechay, he was never Md. Bd. 347 Md. of 405, (1997) (stating jurisdiction 701 A.2d that the court lacks over a served); "process” named defendant if has not been Claibourne v. Willis, 684, 686-87, 293, (1997) (same). 347 Md. 702 A.2d Subse- quently, BSI filed a motion in Circuit Court to dismiss "John Doe” Although from the case. we do not know whether the Circuit Court Doe,” served, party, dismissed “John because he never was is not a represent person, any filings does not a real we do not address made after the writ of certiorari was issued. 2-534, 8. Because BSI filed its Motion for Reconsideration under Rule governs judgment, motions to alter or ten-day amend within the Rules, period specified judgment dismissing complaint the the the 2004, certiorari 22, filed a for writ of petition November following questions: containing Petitioner’s claims dismissing Did the trial court err statute, Mаryland anti-spam under the against Respondents Article of the seq. § 14-8001 et Commercial Law Maryland, initiating, conspiring of for Annotated Code initiate, 240 e-mails in the transmission of assisting business, ju- lack of personal for advertising Respondents’ risdiction? request court err in Petitioner’s denying
2. Did the trial Respondents’ as to the nature and extent of discovery take Maryland purposes contacts for under the facts described above? com- trial err in the amended striking
3. Did the
court
fact,
facts
allegations
including
detailed
plaint containing
jurisdiction?
of personal
relevant to the issue
17, 2004,
granted
petition
December
we
issued
On
Gaming Holding
Inc. v. Realtime
Systems,
Beyond
writ.
LLC,
(2004).9
448,
Standard of Review trial court dismissed for lack of complaint person- BSI’s al over Realtime and Mary- KDMS under 2-322(a) (c), land Rule which state in pertinent part: (a) Mandatory. The following by defenses shall be made answer, motion to dismiss filed before the if an answer is (1) (2) required: lack of person, over the im- (3) venue, proper insufficiency process, of insuffi- ciency process. service If not so made answer filed, these defenses are waived. (c) Disposition. If, on a motion to for failure dismiss pleading to state a claim upon granted, which relief can be matters outside the pleading presented are to and not court, excluded the motion shall be treated as one for summary judgment and disposed provided as in Rule 2- parties and all shall be given reasonable opportunity to all present material made pertinent to such a motion by Rule 2-501. 2-322(a) (c).
Md. Rule As Paul Judge V. Niemeyer *10 Shuett, Linda and Niemeyér Paul Y. Judge of law. questions (2003). If Maryland Third Edition Commentary, Rules motion, may the court the deciding necessary facts are an evi- during adduced or other evidence consider affidavits Id.10 dentiary hearing.
Discussion a prima showing it has made that argues BSI facie to defeat a that is sufficient minimum contacts with To jurisdiction. of personal for lack motion to dismiss from an individual it 240 e-mails end, notes that received BSI that contained a website goldenrhinocasino.com, promoting IP address from an software to download KDMS’s links KDMS, by to a server owned corresponds which assigned IP that the same *11 specific personal case of prima not demonstrated has facie Realtime jurisdiction. Gam- jurisdiction general personal or any has not pointed assert that BSI ing and KDMS be- subsidiary relationship an or showing agency evidence Thom, the indi- or Travis tween them and windowscasino.com Moreover, for the e-mails to be sent. arranged vidual who company and KDMS contend that neither Gaming Realtime i.e., are not Maryland, any has contacts with State in Maryland, Mary- do not conduct business incorporated land, in the transmission of the e-mails and not involved were such, issue, subject or specific general are not as jurisdiction. the trial court argue and KDMS also Gaming
Realtime it denied request did not abuse its discretion when BSI’s provided upon assert that BSI no basis discovery. They allegations and grant discovery beyond conclusory jurisdiction. Ultimately, Realtime bald-faced assertions discovery characterize desire for as Gaming and KDMS BSI’s fishing expedition. concerning Finally, response arguments to BSI’s complaint, the amended striking of that the trial court did not abuse its discretion KDMS contend They argue it denied for leave to amend. request when BSI’s his discretion because judge properly that the trial exercised already on facts that were was based complaint the amended court, therefore, before could not cure the fatal defects BSI’s action. for Personal
Conditions Jurisdiction Whether a court may personal jurisdiction exert over a foreign First, defendant entails dual considerations. we con sider whether the exercise of authorized under statute, Maryland’s (1973, arm long Md.Code 2002 Repl.Vol.), See § 6-103 of the Courts Judicial Article.11 Proceedings (1973, Repl.Vol.), 11. Md.Code Section 6-103 of the Courts and Proceedings provides: Judicial Article (a) person solely upon Condition.—If over a is based this section, may only arising any he be sued aon cause of action from act enumerated in this section. (b) may general. personal jurisdiction In court exercise over a —A person, directly by agent: who or (1) any performs any Transacts business or character work or State; service in the (2) food, services, supply goods, Contracts to or manufactured State; products in the (3) injury by Causes tortious in the State an act or omission in the State; injuiy Causes tortious in the State or outside the State an act regularly or omission outside the State if he does or solicits business, engages persistent other course in the of conduct food, services, goоds, State or derives substantial revenue from or State; products manufactured (5) used or in the consumed in, uses, State; possesses property Has an interest real in the or (6) for, on, *12 surety any Contracts to insure or act as a person, or contract, risk, located, executed, property, obligation, agreement or performed or to be made, within the State at the time contract parties provide writing. unless the otherwise in (c) Applicability computer computer programs.— infonnation (l)(i) following meanings in this subsection the terms have the indi- cated. (ii) "Computer meaning information” § has the in 22-102 stated of the Commercial Law Article. (iii) "Computer program" meaning § has stated in 22-102 of the Commercial Law Article. (2) provisions apply computer of this section information computer programs they goods in the apply same manner as and services. (2002, 22-102(10) Maryland Cum.Supp.), Code 2004 Section of the provides: Commercial Law Article "Computer information” means information in electronic which form through is obtained computer from or the use of a or which is in a
15
126, 130,
A.2d
262 Md.
277
Piper
Corp.,
v.
Lamprecht
Aircraft
(1971);
Inc. v.
272,
Maryland,
275
Carefirst
of
Carefirst
(4th
390,
Cir.2003);
Centers, Inc., 334 F.3d
396
Pregnancy
v.
the First Church
Christ
Bd. Dirs.
Christian Sci.
of
of
of
Cir.2001).
(4th
Nolan,
209,
second task is to
F.3d
215
Our
259
jurisdiction comports
the exercise of
whether
determine
of the Fourteenth Amendment.
requirements
process
due
275; Carefirst,
A.2d at
262 Md. at
Lamprecht,
Dirs.,
396;
(b) not initiate the transmis- person may Prohibition. —A sion, person another to initiate the transmis- conspire with sion, of commercial electronic or assist the transmission mail that: or to an computer Is from a the State is sent mail that the sender or should
electronic address knows State; of the known is held a resident have by computer. capable being processes The term includes a form copy packaging or associ- of the information and dоcumentation copy. with the ated 22-102(12) (2002, Cum.Supp.), Code Section provides: Law Article Commercial "Computer program” of statements or instructions to be means set bring directly indirectly computer to about a certain used in a separately identifiable information- result. The term does not include al content. *13 16
(2)(i) Uses a third Internet domain name or elec- part’s tronic mail address without of the third permission party;
(ii) false or information about the misleading Contains or the transmission of the commercial elec- origin path mail; tronic or
(iii) or misleading Contains false information subject line that has the or effect of capacity, tendency, deceiving recipient. (2002, § 2004 14-3002 if the Supp.),
Md.Code Cum Commer- cial Article. This statute enacted in 2002 by Law was Assembly General an effort to curb the dissemination of unsolicited, misleading through false or information commer- e-mail, cial as a Mat- deceptive practice. business Economic Committee, 915, ters FI. HB at 2. At the time of the Rpt., enactment, twenty-one statute’s other states had en- already acted some form of statutory prolifera- scheme to address the 12 File, See tion of Bill “spam.” Spam Summary, Laws: HB Thus, BSI asserts the e-mails their content Heckel, Washington Supreme 12. As Court noted in State v. 404, (2001): Wash.2d 24 P.3d 406 n. 1 (or ‘spam’ broadly ‘junk The term mail'), refers to unsolicited e-mail bulk e- (such advertisement) which ‘can either be commercial as an (such letter).' Kelin, joke noncommercial as a or chain Anne Sabra E-Mail, Regulation Berkeley State Unsolicited Commercial Tech. (2001). "spam” L.J. 436 & n. 10 Use of the term Internet as jargon seemingly ubiquitous junk for this e-mail a arose out of skit comedy troupe Monty Python, the British which waitress can ‘Well, patron single spam: offer no menu item that does not include egg, sausage spam, spam. got spam there’s That's not much al., Chapman Complete Monty Python's Flying it.’ Graham et (Pantheon 1989). Circus: All the Words Books Hormel Foods Corporation, which debuted its SPAM® luncheon meat in has dropped defensiveness about this use of the term and now product (www.spam.com). celebrates its with a website See Hormel Mark, Objects Cyber Promotions’ Use ‘SPAM’ 4 No. 1 Andrews (1997); Litig. Prop. Rep. Flynn, Intell. Laurie J. Gracious Conces- Times, ‘Spam,’ Aug. sion on Internet N.Y. at D3. Because users, widely adopted by legislators, the term has been Internet commentators, herein, legal along we use the term with its useful ‘spammer’ ‘spamming.’ derivatives
17 personal jurisdic- the basis for the trial court to assert provide through long tion arm statute. statute, (1973,
The
arm
2002
long
Repl.
Md.Code
Proceedings
Section 6-103 of the Courts and Judicial
Supp.),
Article,
in 1964 in
to the
response
Supreme
was first enacted
310,
in
Washington,
Court’s decision
Int’l Shoe Co. v.
326 U.S.
(1945).13
statute,
154,
66 S.Ct.
(a) jurisdiction A court exercise a may person over directly by agent, acts or an as to a cause of action who arising from the person’s
(1) State; transacting any business in this (2) State; in this contracting supply services (3) in causing injury tortious this an act or by State State; omission this
(4) causing injury tortious this State an act or omission if regularly outside the State he does or solicits business, engages any other course of con- persistent duct in this State or derives substantial revenue from food State; or services used or consumed in this in, having using, interest or real possessing proper- State; ty in this [or]
(6) contracting any person, to insure or property, risk located at the contracting; within this State time of (b) jurisdiction a person When over is based on this solely section. Shoe, Supreme opinion Pennoyer Neff,
13. Prior to Int’l
Court’s
v.
714,
(1877), provided
process
required
95 U.S.
L.Ed. 565
that due
process
present
service of
on an individual defendant while
within the
personal judgment.
corporation only
a
state for valid
A
existed within
incorporation,
Augusta
the borders of the state of its
Bank
see
Earle,
519,
(1839),
38 U.S.
(b) solely upon is based person When over section, from acts enumer- only arising a cause of action this him. may against in this section be asserted ated 96(b). (1957, § In Art 75 Cum.Supp.), Md.Code (a)(6) amended to state: subsection was for, on, (a)(6) or surety to insure or act as contracting risk, contract, obligation, agreement or person, property, *15 located, this at the performed executed or to be within State in contracting, parties provide time of unless the otherwise writing. 96(a)(6). (1957, part § Art. 75 As Repl.Vol.),
Md.Code effort, Assembly in re- the recodification General it and renumbered as Section 6-103 vised this Section Article: Proceedings Courts and Judicial (a) solely If a is based jurisdiction person over Condition. section, a of action may only this he be sued on cause upon in any from act enumerated this section. arising (b) jurisdiction A court exercise general. may In directly by agent: or person, over whо (1) character of any performs any transacts business or State; in or this work services (2) services, food, contracts to or manufac- supply goods, State; in the products tured (3) by in this an act or causing injury tortious State State; omission in this
(4) tortious in the or outside of the injury causes State an act or omission outside the State if he State business, in any or solicits other regularly engages does in the or course of conduct State derives persistent food, services, or manu- goods, substantial revenue from State; factured used or consumed products (5) uses, in, real possesses property has an interest or State; or for, on, to insure or act as a or surety Contracts contract, risk, person, property, obligation, agreement located, executed, or to be performed within the State made, parties the time the contract unless the other- provide writing. wise (1973), § 6-103 of the Courts and Judicial Proceed-
Md.Code commentary Article. to the ings According published with statute, arm long statute was intended to give jurisdiction permitted by courts the full extent the Federal Laws, Sess., §2 Sp. Constitution. 1973 Md. 1st Chap. In Assembly General amended the arm long statute for the final time the Maryland Comput- Uniform and, er Information Transactions Act addеd current subsection (c) the courts’ expand “computer over informa- Laws, tion” “computer programs.” 2000 Md. Chap. (“specifying provisions granting law over in a cause of action person include certain informa- computer transactions”). tion and information computer sub- Current (c) section long arm statute provides: (c) Applicability computer and computer information programs. (l)(i) In this subsection the terms following — have the meanings indicated.
(ii) “Computer information” has the meaning stated *16 § 22-102 of the Commercial Law Article.
(iii) “Computer program” has the stated in meaning § 22-102 of the Commercial Article. Law (2) provisions The of this section apply to infor- computer mation and computer programs the same manner as they apply goods to and services. (1973, 6-103(c) §
Md.Code 2002 Repl.Vol.), of the Courts Proceedings “Computer Judicial Article. information” and “computer program” are defined as follows under Mary the land Code:
(10) “Computer information” means information in electron- ic form which is obtained from or through the use of a or computer capable which is a form of being processed aby computer. The term includes a the copy of information with the associated packaging documentation or
copy.
[*] [*] [*] or (12) means a set of statements “Computer program” computer in a directly indirectly to be used instructions does not include The term about a certain result. bring content. identifiable informational separately 22-102(10) (2004 §§ Cum.Supp.), Md.Code Article. Law Commercial court, the case to present brought e-mails
Although purposes issue for of the personal gravamen for licensed arise out of advertisements arm statute long require computers, for use on software proprietary a remote source. from program to download the user of machine-readable code” only “consists at issue software the user’s computer. a certain action on execute Black’s Law ed.2004). (8th Thus, con software” “proprietary Dictionary, comput Maryland supplying that involves business ducting residents will be Maryland or information programs er informa programs if the in the same manner as treated by a business. provided or services tangible goods tion were form the basis may issue the software Advertising arm long statute under the Before we “computer program.” the definition of upon based test has the minimum contacts of whether explore the issue met, however, the characteristics of a discussion of been is Internet warranted.
The Internet
Union,
American Civil Liberties
521 U.S.
In Reno v.
(1997),
Court
Supreme
While
the
of a number of civilian net-
development
example
other,
that,
with each
now enable
eventually linking
works
millions of
to communicate with one another
people
tens of
from around the
amounts of information
and to access vast
world.
849-50,
at 884.
Id. is a global computers, Because the Internet network the must a unique connected to Internet have computer “each (White- address,” Shuler, How Does the Internet Work? Rus Address, 2002),14 an Internet Protocol which known as paper the connection” to the identify “can be used to the source of (8th Bach, n. 4 States v. 400 F.3d Internet. United Cir.2005). Internet, to the communicate computers
When connected stack,” the use through “protocol[15] with each other example, stack.” For usually protocol which “TCP/IP e-mail, message the e-mail enters sending someone is when corresponds Protocols through Application Layer, such using as browsers for World Wide specific programs then enters the Transmission message Web and e-mail. (“TCP”), Protocol which directs certain information to Control using on a application program computer port. a specific stack, then layer protocol message From the TCP Layer, into the Internet Protocol which directs moves an IP using to a address. The message specific computer the Internet is for step process prior entering final concerning the structure of the Internet that follows 14. The information unless otherwise cited. is taken from How Does the Internet Work? governing the treatment and 15. “Protocol” is “a set of conventions formatting especially of data in an electronic communications (10th ed.2002). system.” Dictionary, "protocol” Merriam-Webster *18 22 Layer
the Hardware to convert the from data message binary signals. network message is then transmitted via Internet Service (“ISP”) Provider examines the IP address mes- sage routes the information to the with the computer IP proper message address. When the reaches its intended recipient, computer reverses the receiving proto- TCP/IP col stack and the message is decoded.
Constitutional Considerations
Personal Jurisdiction
consistently
Because we have
held that the reach of
the long arm statute is coextensive with the
of personal
limits
jurisdiction delineated under the due process clause of the
Constitution,
Federal
statutory inquiry merges
our
with our
Michael,
constitutional examination.
Mohamed v.
279
See
656,
553;
Md. at
A.2d
Carefirst,
370
General Jurisdiction The standard determining the existence of jurisdiction over a nonresident defendant depends upon whether the defendant’s contacts with the forum state also provide the for the If the basis suit. defendant’s contacts with suit, State are not the basis for the then over the defendant must frоm general, arise the defendant’s more persistent contacts State. “To establish general jurisdiction, the activities in defendant’s the State must have ” 397, been systematic.’ ‘continuous and 334 F.3d at Carefirst, Scan, Inc., Consultants, quoting Digital ALS Inc. v. Serv. 293 (4th 707, Cir.2002), denied, 1105, F.3d 712 cert. 537 U.S. 123 868, (2003); S.Ct. L.Ed.2d 773 see Nacio Helicopteros Colombia, Hall, 408, 9, nales de S.A. v. n. U.S. & (1984). 411 & n. 9 1872 & n. 80 L.Ed.2d S.Ct. personal jurisdiction alleged general specific has both BST Gaming Realtime and KDMS. over ability general per- to exercise respect Maryland’s With KDMS, over Realtime BSI sonal “highly interactive” alleges Gaming’s website Maryland, to solicit business in corporation permits contracts, sales, Moreover, and accrue profits. enter conduct links to other asserts that the fact that the site websites BSI *19 software, gaming that links to download KDMS’s which have lines of communication may Maryland, be use creates of and sources substantial revenue. people exploring case a model framework for explicating The first on the Internet can be used as a basis for whether websites jurisdiction on the courts is Manu- conferring personal Zippo Com, Inc., F.Supp. v. Dot 952 1119 facturing Zippo Co. (W.D.Pa.1997). Us, S.A., Step “R” Inc. v. Two 318 Toys See (3d Cir.2003) a (stating Zippo F.3d 452 that “has become jurisdiction seminal based authority regarding personal upon website”); Carefirst, of an Internet 334 F.3d at operation 399 that “first that court’s influential (noting Zippo enunciated jurisdiction re- ‘sliding applying personal scale’ model” for Wallin, commerce); to electronic Sublett v. 136 quirements (observing N.M. 94 P.3d 851 that (App.2004) scale of first articulated in sliding interactivity Zippo). was In an action of a trademark Zippo, arising out violation Co., by Zippo Manufacturing produces lighters, alleged Com, Inc., service, against Zippo Dot an online news the court jurisdiction of “sliding personal the use of scale” suggested to the nature and “directly proportionate quality that is the Internet.” activity entity commercial that an conducts over court described it as a Zippo, F.Supp. 952 Zippo “spectrum” which: ... clearly one end are situations where defendant
[a]t If over the Internet. the defendant enters does business jurisdiction of a that foreign into contracts with residents transmission of knowing repeated computer involve Internet, proper. E.g., files is personal over 24 (6th Cir.1996). Patterson, v. F.3d
CompuServe, Inc. 89 1257 At opposite end are situations where a defendant has information on an Internet is simply posed Website which jurisdictions. A foreign passive accessible users Wеb- site that does little more than make information available to are in it not for the exercise grounds those who interested is jurisdiction. E.g., Coiy. Bensusan Restaurant (S.D.N.Y.1996). King, F.Supp. 937 295 The middle ground occupied by interactive Websites where a user can In exchange computer. information with the host these cases, the exercise of is determined examin- ing interactivity the level of and commercial nature of the site. exchange E.g., information occurs the Web Maritz, Inc., (E.D.Mo. Inc. v. Cybergold, F.Supp. 1996). at 1124.
Zippo, F.Supp. Maritz, Inc., In Inc. v. Cybergold, F.Supp. (E.D.Mo.1996), the defendant hosted a as a promotion website for the launch of its Internet service. Although service was not visitors to the site operational, encouraged were mailing add their address to a list to receive its about updates the service. Id. at 1330. The plaintiff brought suit to recover *20 for copyright infringement upon based the website’s availabili- ty to consumers in Missouri. In the rejecting defendant’s website,” contention that it a operated “passive the court reasoned that the defendant’s conduct amounted to “active “promotional designed solicitations” and activities” to “develop list of Internet that mailing users” and the defendant “indiscriminately responded every user” accessed the who at site. Id. 1333-34.
At the end of the the opposite spectrum, court Bensusan (S.D.N.Y.1996), Corp. King, F.Supp. Restaurant that the concluded website issue that case did not enable jurisdiction the court to exercise the defendant. over The Internet website issue contained information general club, events, about the defendant’s a calendar of and ticket interactive, information. Id. at 297. The site was not and if a club, go user wanted to to the she would to call or visit a have up night then tickets at the club on the pick ticket outlet and Id. of the show. case prima contends that it has established a
BSI facie upon sliding for based the scale of general Zippo In trial proceedings of before the interactivity websites. court, alleged Gaming BSI that Realtime and KDMS’s website further illustrat highly support is interactive without factual In interactivity by Maryland. or its use residents of ing its to the that the light contrary, dearth of evidence we find that Gaming trial court’s determination KDMS’s is not interactive” is not erroneous. “highly clearly website Moreover, particularly scale is not Zippo well-suited general personal use because inquiry16 “even contacts with forum residents repeated foreign substantial, may requisite defendant not constitute the contin required uous and contacts for a systematic finding general Lidov, (5th jurisdiction.” Revell v. 317 F.3d Cir. 2002); Masters, see & Augusta also Inc. v. Nat’l Bancroft (9th Inc., Cir.2000) 223 F.3d in com (“[Ejngaging merce residents of the forum state not in and of itself the kind of activity approximates physical presence within borders”). the state’s
Irrespective sliding scale delineated in Zippo, question general jurisdiction is not difficult resolve. is, Though maintenance of a website a contin- conceivably, presence uous everywhere, existence of a website alone is not sufficient to general jurisdiction establish in Maryland Realtime Gaming over and KDMS. the trial provided BSI beyond court with no evidence Realtime Gaming and KDMS’s website, substantial, continuous, systematic establish con- Therefore, tacts with Maryland. we conclude that the trial court determined that it properly general jurisdiction lacked over Realtime and KDMS. *21 Zippo, plaintiff only In specific jurisdiction
16. the had conceded that F.Supp. Zippo, was at issue. 952 at 1122. 26
Specific Personal Jurisdiction
form
If the defendant’s contacts with the forum state
suit, however,
establish
they may
“specific
the basis for the
at
In
jurisdiction.” Carefirst,
determining
334 F.3d
(1)
exists,
consider
the extent
specific jurisdiction
whether
we
the
has
availed itsеlf of the
purposefully
which
defendant
(2)
State;
of
activities in the
whether the
privilege
conducting
out of
directed at the
plaintiffs’ claims arise
those activities
State;
the exercise of personal
whether
334 F.3d at
constitutionally
Carefirst,
would be
reasonable.
Scan,
711-12;
397;
Helicopteros,
ALS
293 F.3d
see
8,
8,
at 414
n.
at 1872 n.
BSI asserts that has established case for facie Gaming over Realtime and KDMS because specific alleged Gaming it has that Realtime and KDMS own or windowscasino.com, that company control the assisted Thom for the Rhino designing website Golden Casino and In support unsolicited commercial e-mails that BSI received. assertion, that a link of this BSI notes windowscasino.com has that leads to an IP address that is to Realtime registered Gaming and KDMS and that the e-mails at issue contained a ultimately link led to the same IP address. which prima showing BSI must make a
Specifically, facie contractual agency relationship exists between and KDMS and windowscasino.com. See (1973, § Repl.Vol.), Md.Code 6-103 Courts and An Proceedings agency relationship Judicial Article. “is a of legal concept depends upon required existence that the principal factual elements: manifestation him, agent аgent’s acceptance shall act for of the under that the taking understanding parties principal and the (Second) is to of the undertaking.” be control Restatement (1958); 1, Agency Company § cmt. see North Insurance Miller, 587, (2001); America v. 362 Md. 765 A.2d Block, Inc., v. H R & 355 Md. 735 A.2d Green (1999). such a not Although relationship necessarily
27 nature, contractual in it always is Insurance consensual. Co. Amer., 373, 593, 362 citing Md. at 765 A.2d at Lohmuller Of N. Gamble, (1931). 534, 539, 41, v. Bldg. Co. 160 Md. 154 A. 43 intent, The question ultimate is one of of both the principal Perman, Id.; agent. and the Howard v. Cleaners 227 Md. 291, 295, 235, (1961). 176 A.2d 237 We have recognized three factors as having particular relevance to the determination of an agency relationship. These factors are:
(1) The agent’s power to alter the relations of the legal principal;
(2) The agent’s duty to act for the primarily benefit of the and principal;
(3) The
to control
principal’s right
agent.
Green,
503,
1048,
Realtime and Gaming KDMS and windowscasino.com is the fact that the windowscasino.com website contains a link to an IP address registered to KDMS where customers can down- load the gaming software. This does not establish or even contractual, indicate a relationship, principal-agent or between KDMS, Realtime Gaming hand, and on the one and windows- casino.com the other in which windowscasino.com is em- powered to act on Realtime Gaming and behalf KDMS’s Gaming whether Realtime control KDMS windowscasi- no.com. provide BSI does not any evidence of mutual corpo- officers, members, owners, rate board or other such control- ling individuals or anything entities show more than from Montana a sub-license has obtained
windowscasino.com no more evidence compelling A link with mere Overseas. nexus between necessary to create insufficient KDMS, and Thom.17 windowscasino.com a rela- any evidence of failed to provide Because BSI has windowscasino.com, KDMS, Gaming, among Realtime tionship Thom, possesses a contract or governed that is either fail to relаtionships, we agency characteristic of those qualities *23 or connection Maryland contact with substantive any see find that it suit, and as such to this rise giving the conduct personal reasonable to exercise constitutionally not be would facts. on these Gaming and KDMS over Realtime Discovery The Denial of abused his discre judge that the trial BSI claims 26, May 2004 to dismiss at the in on the motion ruling tion review We discovery. its for denying request and hearing the abuse of discretion standard discovery under the denial of trial abused its discretion that the court only and conclude will “ adopted would take the view person no reasonable ‘where court acts ‘without ... or the when ]’ the [trial] court[ under ruling and the principles,’ to any guiding reference effect of facts logic the ‘clearly against is consideration ruling ... the or when before court[ ]’ and inferences ” Crane, 185, Md. v. 385 logic.’ of fact and Wilson ‘violative (2005), 1077, Adop In re 198, quoting A.2d 295, 312-13, 701 A.2d 347 Md. No. tion/Guardianship omitted). (citations not find that 110, 118-19 We do the decision beyond case is present court’s decision trial that of the fact light make person that a reasonable would a connection any unable to evidence produce BSI was hand, KDMS, on the one Gaming Realtime between Gaming and KDMS receive substan- that Realtime 17. BSI also asserts through online casinos citizens in tial revenue from any to windowscasi- support. Visitors their software without use no.com, designed by for KDMS example, download the software for Gaming between has failed to show connection free. BSI and KDMS and windowscasino.com. Thom, other, a link beyond windowscasino.com to an IP address at which individuals could download leading designed by the software KDMS.
Striking Complaint the Amended June the trial court issued order On that as to dismissing complaint BSPs was silent whether complaint prejudice. was dismissed with without BSI that the trial court abused its discretion in argues striking complaint amended that it filed and cites a of this number for the proposition Court’s cases a dismissal is without prejudice specified unless otherwise the order of dismissal. See, e.g., v. 221 Md. A.2d 265 Snyder, Williams (1960); Strazzella, ex rel. State Lennon 331 Md. (1993). 2-341(c)
A.2d 1055 that Maryland BSI also notes Rule provides that shall freely be allowed when “[a]mendments justice permits.” Despite so preference freely permit amendments, ted BSI failed to introduce any new facts to cure its inability produce prima Maryland’s evidence of facie over Realtime and KDMS. *24 Therefore, find that we the trial court did not abuse its discretion the motion for denying reсonsideration and strik ing Complaint. BSI’s Amended
Conclusion concluded, Because we find that the trial properly court introduced, based on the evidence that BSI failed to establish case pnma general specific personal jurisdiction or facie KDMS, Gaming over Realtime and we affirm the trial court’s Moreover, dismissing complaint. order we conclude that the trial court did not abuse its discretion in denying BSI the motion for reconsideration discovery denying and strik- ing complaint. the amended THE
JUDGMENT OF CIRCUIT FOR COURT MONT- AFFIRMED. GOMERY COUNTY COSTS TO BE PAID BY THE PETITIONER.
RAKER,
BELL,
dissenting,
Judge,
which
Chief
Judge,
HARRELL, Judge, join.
I
because
judgment
would reverse the
Circuit Court
the court abused its discretion in
BSI’s
denying petitioner
discovery
jurisdictional
for further
as to
facts. The
request
and Realtime’s
granted respondents
Circuit Court
KDMS
on the
that
complaint
grounds
respon-
motion to dismiss the
jurisdiction of the court
subject
personal
dents were not
to the
not entitled to
on the issue.
petitioner
discovery
and that
was
majority
holds that
Court acted within its
Circuit
to
“in
of the fact that BSI was
deny discovery
light
discretion
unable to
evidence of a connection between
produce any
KDMS,
hand,
on the
one
windows-
Thom,
other,
a link
beyond
leading
casino.com and
on the
an IP address at
could download the soft-
individuals
28-29,
Maj.
“[0]ur objective as their scope, principal required have surrounding disclosure of all relevant facts the litigation before the In court. Baltimore Transit Co. Mezzanotti 8, 13-14, ], Md. 174 A.2d we reasoned: [227 relevant, ‘If all of the of all of the parties knowledge have facts, or the pertinent non-privileged knowledge facts, the existence or of such the parties whereabouts should be to their properly prepare able claims and defenses, thereby advancing expeditious sound and In justice. administration of order to accomplish purposes, discovery above rules are to be liberally And the judges, primarily construed. trial who are called rules, upon administer said are vested with a reason- able, them, in applying sound discretion discretion will not be in the showing disturbed absence of its abuse.’
Nowhere is that rationale more applicable than when a fact- issue, specific such as whether the court can exercise per- defendant, sonal present- over non-resident is ed.”
Androutsos,
(citations
Although the in a action plaintiff responsibility civil bears suit, for establishing the defendant’s amenability including jurisdiction, a personal complaint required is to contain “only such statements of fact as be may necessary show 2-303(b). Indeed, entitlement to relief.” Rule pleader’s Md. it is the defendant must raise questions personal who jurisdiction at the 2- pleading stage; under Rule 322(a) defense to if waived not raised filing complaint. before an answer to the See Hansford
32
Columbia,
1057,
Md.
617 A.2d
1060
v.
329
District of
(1993). Thus,
to
duty
plead
a
bears no affirmative
plaintiff
inappropriate
in a
and it is
jurisdiction
complaint,
personal
solely
a motion to dismiss based
on
ordinarily
grant
to
amenability
the issue of
to
deny discovery
and to
on
pleadings
See,
Postal
e.g., Edmond v. United States
Serv. Gen.
suit.
(D.C.Cir.1992)
Counsel,
1398,
J.,
(Ginsberg,
953 F.2d
1401
de
v.
des Bauxites
Guinee
L’Union
concurring); Compagnie
(3rd
d’Assurances,
357,
F.2d
362
Cir.
S.A.
723
Atlantique
Maxwell,
1983);
v.
468
Processing Equip. Corp.
Leasco Data
(2d
1326,
Cir.1972);
v.
Surpitski
Hughes-Keenan
F.2d
1343
(1st
254,
Cir.1966); Hart Holding
362 F.2d
255-56
Co.
Corp.,
Lambert, Inc.,
535,
593 A.2d
Inc. v. Drexel Burnham
Indus., Inc.,
(Del.Ch.1991);
v.
33 N.Y.2d
Spartan
Peterson
(1974).
905,
513,
N.E.2d
354 N.Y.S.2d
Edmond,
Ginsburg
Ruth Bader
noted
Judge
In
then-Circuit
to
affording
plaintiff “ample opportunity”
importance
to
before dismiss-
discovery
personal
take
relevant
a claim
a defendant:
ing
against
Popkin
prema
“The
over
was
ruling
personal
any discovery;
keeping
ture in the absence of
Watt,
(D.C.Cir.
v.
In the United States Court First Circuit noted as follows:
“A a total to a should plaintiff stranger corporation who is undiligent, try not be unless he has been such required, an issue on without the benefit of full discov- affidavits ... further ery. plaintiffs proposed The condemnation of ‘fishing expedition’ activities as a was unwarranted. When identified, it is in the the fish is and the is whether question customary deny plaintiff know no reason pond, we license.” at 255-56. 362 F.2d
Surpitski,
addressed this issue
Chancery
Coui’t
Delaware
stated as follows:
Holding
Hart
Co. and
burden,
evidentiary
may
she
not
“As a
does have
plaintiff
*27
to
that a defendant is
attempting
prove
from
precluded
be
court,
the
not ordi
subject
may
to the
of
in aid of
discovery
be
from reasonable
narily
precluded
v.
proof. Surpitski
Hughes-Keenan Corp.,
such
mounting
(1st Cir.1966);
5A
and Miller
Wright
F.2d
255
see
362
in
alleged
the facts
the
Only
complaint
§ 1351 n. 33.
where
defendant
personal
make
claim of
over
frivolous,
court,
exercise of its
the trial
in the
discre
might
reason
discovery process, preclude
control over the
tionary
jurisdiction.
establishing personal
able
in aid of
discovery
Ireland,
Compagnie
Ltd. v.
des Bauxites
Corp.
Insurance
of
Guinee,
102
de
456 U.S.
S.Ct.
72
(1982). In
des Bauxites
Compagnie
L.Ed.2d 492
de Guinee
(3d
d'Assurances,
Atlantique
v. L’Union
S.A.
Where ordinarily discovery juris- district court should allow in order to aid the in plaintiff discharging diction burden. at
723 F.2d relatively It is rare but not unheard that a court will to to make out its require plaintiff attempt prima facie amenability factual of defendant’s to suit showing without See, Wyatt the benefit of v. 686 discovery. e.g., Kaplan, (5th Cir.1982); Products v. Juraj F.2d 276 Daval Steel M.V. Dalmatinac, (S.D.N.Y.1989); v. F.Supp. Singer 159 Bell, (S.D.N.Y.1984); & F.Supp. Regu Grove Valve Ltd., Co., Services, F.R.D. 93 lator Inc. v. Iranian Oil (S.D.N.Y.1980). these cases the While each of court matters outside of the each instance pleading, considered jurisdic- plaintiffs the court found that assertion of plausibility tion lacked that minimal level of needed to discovery go purpose forward. No is here served permit eases; by detailing presented questions the facts those it inherently highly particular. this kind are But is notable that, in v. of a Wyatt Kaplan, approving granting 12(b)(2) plaintiff motion to dismiss under Rule where the opportunity depositions, had been denied an to take Fifth Appeals strongly prac- Circuit Court endorsed tice that on such a motion: ordinarily permits discovery challеnges personal jurisdiction,
When a defendant courts to the issues raised generally permit depositions confined in the In appropriate motion dismiss.... cases we will not for lack of personal hesitate reverse dismissal jurisdiction, ground on the that plaintiff improperly was discovery.... denied
Wyatt Kaplan,
This case is not one falls into the category which presence, together frivolous.” The elusive nature of Internet with the to conceal their strong “spammers” incentives identities, juris- that often there be a dearth of portends will brought dictional facts in future cases under the Commercial Assembly Electronic Mail statute. General has created a private cause of action to aid residents unsolicited, battle commercial e- escalating against deceptive mail. The effectiveness of that tool be diminished if will we close the courthouse door to them plaintiffs providing without juris- the means to uncover facts that support personal would diction.
The e-mails at issue in this case an composed by entity were windowscasino.com, Maryland by named and sent into “affiliate,” entity through its Travis Thom. I disagree with majority’s produce any conclusion that “BSI was unable to evidence of a connection between Realtime KDMS, hand, Thom, on the one and windowscasino.com and other, a link to an IP address at beyond leading designed by individuals could download software KDMS.” three facts casting respondents’ BSI established doubt on is, most, contention that windowscasino.com at a sub-licensee and has no re- agency relationship KDMS software First, spondents. hyperlink “http://wincasinoclicks.com/ SmartDownload.asp?affid=13462” permitted Maryland recipi- ents e-mail to KDMS-designed download software. Second, the domain name “wincasinoclicks.com” corresponds Thus, to an IP address registered KDMS and Realtime. e-mail recipient who clicked on the be hyperlink would down- loading software belonging KDMS server to KDMS. from Third, BSI’s Paul A. expert, Wagner, stated his affidavit that the “?affid=13462” portion hyperlink likely most (in Thom) identify served to the affiliate this case Travis who recruited the gambler. Assuming this allega- uncontroverted true, tion to be a KDMS-owned collecting server was informa- tion that could have been used to determine Travis Thom’s compensation.
The relationship between respondents and windowscasi- no.com is shrouded in the holding mists of offshore companies, entities, and multi-level licensing arrangements. According respondents, KDMS has еntered into an exclusive license with (Panama-based Overseas). a master licensee Montana Mon- Overseas, turn, tana many sub-licenses the software to casinos, client among them windowscasino.com (seemingly Mañana, trade name of either de la Angel a Costa Rican ADLM, Ltd., corporation, or located in the Channel Island of Jersey). Respondents assert that KDMS Realtime have sub-licensees, no relationship direct with their and exercise no *29 control over the manner which the sub-licensees advertise hand, their services. theory, Under BSPs on the other shams, licensing sub-licensing agreements and are Montana Overseas, Mañana, de la Angel and ADLM are mere dummy and corporations, windowscasino.com is a trade name or alter ego of KDMS/Realtime. may exactly be as KDMS relationships
While claim, provide the three facts detailed above some provid- A server is theory. credence to BSI’s KDMS-owned directly to end users. This KDMS-developed software ing suggests collection of affiliate identification numbers server’s role in the adminis- may that and Realtime have some KDMS system. affiliate commission tration of windowscasino.com’s agency relationship facts alone do not establish an These windowscasino.com, they but do between KDMS/Realtime more than a request discovery something render for BSI’s is entitled to more information “fishing expedition.” BSI various entities. among the connections Who regarding Overseas, Mañana, de la and ADLM? Angel Montana owns employees? Do these have assets or Who companies the “house” bets at windowscasi- acting gambler as when purported licensing agreements no.com? Do the between Overseas, KDMS/Realtime, la Angel Montana de Mañana exist, so, they ADLM and if do contain? Is actually what fee, flat or do and Realtime the software licensed for a KDMS each payment receive an additional for download? What business, any, if run di- of windowscasino.com’s are aspects Do and Realtime rectly by KDMS and Realtime? KDMS for and its affili- advertising copy write windowscasino.com ates? might to the establish that KDMS questions
Answers above software, inciden- merely develop provide and Realtime some services, to have way tal and can no be deemed hosting e-mails into But Maryland. “sent” Travis Thom’s purposefully that the advertisement and the they might also establish it in bulk were the direct creations of strategy e-mailing Realtime, layers dummy behind hiding multiple KDMS attempt disguise and sham licensees in an corporations operation “spam”-dependent their of a business.
I respectfully dissent. have authorized Judge BELL and HARRELL Judge
Chief they join dissenting opinion. me to state this notes his Edition, Rules Commentary, Third all of the defenses listed in 2-322(a) Maryland Rule are collateral to the merits and raise below, presented which were not to the court to further bolster its allegations concerning relationship Gaming, between Realtime KDMS, and windowscasino.com. Because the evidence issue was erroneously not Court, omitted from the record transmitted from the Circuit and BSI does not seek to correct error contained in the record, supplement its motion is denied.
Notes
notes Gaming. and Realtime BSI KDMS the on windowscasi- promoted are also address server the website, goldenrhinocasino.com powered no.com and windowscasino.com’s allegations, From these page. web web- goldenrhinocasino.com design in the involvement Gaming and e-mails, that Realtime BSI concludes site and the windowscasino.com, running involved directly are KDMS of the e-mails therefore, involved in the transmission were prima Thus, the that it has satisfied BSI asserts question. to properly the Court Circuit showing requirеd facie Gaming and over Realtime exercise (4th Bakker, 886 F.2d Combs pursuant KDMS Cir.1989). abused its discretion that the trial court argues further BSI jurisdiction. Ac- discovery concerning personal it denying inter- BSI, inextricably jurisdictional issue cording the trial court's consideration with the effect of 10. This contrasts failure to state pleadings a motion to dismiss for matters outside 2- granted Maryland Rule may under upon which relief be a claim 322(b). grants a motion to if the trial court provides that Rule 2-322 granted may upon which relief be state a claim for failure to dismiss complaint, we corners of the considering outside the four evidence after summary judgment for having into one of as converted view the motion Block, Inc., 355 Md. purposes. v. H & R See Green review (1999). 735 A.2d therefore, case, court merits of twined with the discovery. action to proceed permitted should have is inequitable. do states that to otherwise BSI trial court abused its discretion asserts that the Finally, BSI alleged the facts complaint amended because striking that Realtime Gam- materials showed supporting therein and Maryland to sufficient contacts with and KDMS had ing permitting BSI contends that jurisdiction. support personal prejudiced stand would not have complaint to the amended -KDMS, ignored that the court Gaming granted. should be generally that leave to amend principle that BSI argue and KDMS Conversely, Realtime