No Personal Jurisdiction in Virginia Without Purposeful Targeting of Virginia Readers

Just last week I wrote about a Virginia state-court case that dealt with the issue of whether sending electronic data through a Virginia server (which often happens when defamation is posted online) could satisfy the “minimum contacts” test needed to establish personal jurisdiction. Two days after I posted that article, a federal case from the Eastern District of Virginia was decided in which a federal judge grappled with the exact same issue. In both cases, the courts reached the same conclusion: in cases of online defamation, personal jurisdiction requires more than merely posting comments hosted on a server that happens to be based in Virginia, or which sends data through a Virginia-based server on its way to the Internet. Due process is not satisfied without purposeful targeting of a Virginia audience.

The federal case is FireClean, LLC v. Andrew Tuohy. According to the allegations of the complaint, the facts are essentially these: FireClean manufactures a gun-cleaning oil it claims reduces carbon residue buildup in firearms. It is made of a blend of at least three natural oils derived from a plant, vegetable, fruit, shrub, flower, or tree nut. Beginning around August 2015, various gun-themed blogs started publicizing that FireClean was really nothing more than “Crisco” or other common vegetable oil. The maker of a competing gun oil posted a video online purporting to prove that FireClean was “pretty much a Crisco oil.” The Vuurwapen Blog took an interest in this allegation and decided to further investigate.

The operator of the blog, Andrew Tuohy, hired a chemistry professor to perform an “infrared spectroscopy” test to compare the chemical structures of FireClean, canola oil, and soybean oil, the results of which led him to conclude that FireClean was “probably a modern unsaturated vegetable oil virtually the same as many oils used for cooking.” On September 12, 2015, Tuohy published an article on the Vuurwapen Blog in which he wrote that the recent tests suggested that FireClean was “nothing more than Crisco vegetable oil.” After further testing by a chemistry student at a Massachusetts university, Tuohy wrote on his blog that FireClean is “a common vegetable oil, with no evidence of additives for corrosion resistance or other features.”

FireClean sued Tuohy (as well as the chemistry student) for defamation, claiming that its product was not oilrepackaged Crisco. FireClean is based in Virginia and sued, conveniently, in Virginia. Tuohy, on the other hand, lives in Arizona. The Vuurwapen Blog is hosted in Arizona by an Arizona company.

Like the state-court decision last month, the federal judge was unimpressed with the argument that jurisdiction could be established in Virginia because the online content may have passed through servers located in Virginia. The key, the court held, is whether the defendant directed electronic activity into Virginia “with the manifested intent to engage in interactions in Virginia.” When Tuohy posted articles on his blog or on Facebook, he was apparently targeting a nationwide audience of gun enthusiasts. There was no evidence (or even any allegations) to suggest that Tuohy’s posts were directed to Virginia readers.

The court relied primarily on the same case cited by the state-court decision last month: ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707 (4th Cir. 2002), which laid out the following test (on page 714):

[A] State may, consistent with due process, exercise judicial power over a person outside of the State when that person (1) directs electronic activity into the State, (2) with the manifested intent of engaging in business or other interactions within the State, and (3) the activity creates, in a person within the State, a potential cause of action cognizable in the State’s courts.

The focus, the court emphasized, needs to be on the defendant’s conscious decision to purposefully avail himself of the benefits of transacting business in Virginia, or to otherwise connect himself to Virginia in some meaningful way. Here, while the blog articles (and related Facebook posts) discussed the product of a company known to be based in Virginia, the state of Virginia is never mentioned, and nothing in the blog posts addressed any significance to FireClean being located in Virginia. The focus of the articles was simply on the chemical composition of the gun-cleaning oil, presumably intended for a nationwide (or worldwide) audience. Because there was nothing to suggest Tuohy intended to target a Virginia audience, the court held that it lacked personal jurisdiction and dismissed the case.

This doesn’t necessarily mean the end of FireClean’s case. If FireClean wishes to pursue its defamation claim against Mr. Tuohy, it will have to do so in Arizona, where he is subject to personal jurisdiction.

 

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