When filing a defamation lawsuit against an individual, you need to select a court that has personal jurisdiction over the defendant. A Virginia court doesn’t necessarily have the authority to adjudicate a case against a resident of another state with no connections to Virginia. To determine whether a court has personal jurisdiction over a particular defendant, look first to Virginia’s “long-arm statute” to see whether any of its provisions apply. (The long-arm statute is so named because it lists the circumstances under which Virginia can extend a “long arm” to grab a resident of another state and hale him into a Virginia courtroom). If the long-arm statute does apply, the court must next ensure that exercising personal jurisdiction over that defendant would not violate the Due Process Clause of the United States Constitution. This generally means that to acquire personal jurisdiction over a non-resident defendant in a defamation case, the defendant must have purposefully directed his defamatory statement to a Virginia audience. Absent such purposeful activity, the court would likely find that haling the person into Virginia would offend “traditional notions of fair play and substantial justice,” and would therefore be unconstitutional.
To determine whether specific jurisdiction exists in a particular case, relevant considerations include:
- the extent to which the defendant purposefully availed himself of the privilege of conducting activities in Virginia;
- whether the plaintiff’s claims arise out of those activities directed at Virginia; and
- whether the exercise of personal jurisdiction would be constitutionally reasonable.
Let’s take a look at a couple of real-world examples to see how courts have applied this test in Virginia.
First up: the state-court case of Shahrokh Mireskandari v. Daily Mail & General Trust PLC. Shahrokh Mireskandari is a United Kingdom (“UK”) solicitor who now lives in California. He sued the Daily Mail and other UK news organizations for defamatory statements allegedly made in two articles, of parochial interest to UK readers, claiming he was a “bogus solicitor” with “bogus legal qualifications.” His choice of venue for this UK-centric dispute? Fairfax County, Virginia.
This case reminds me of one I handled several years ago in which I defended a Hong Kong resident against a defamation claim brought in Fairfax County, Virginia, by another Hong Kong resident. The claim had to do with statements made (in Chinese) to a reporter in Hong Kong, who published them in a Hong Kong tabloid. When the case reached the Virginia Supreme Court, the basic question all the justices wanted an answer to was “what the hell is this case doing in Fairfax County, Virginia?” (though none of the justices phrased the question quite that way). The Mireskandari case is similar in that it also involves a dispute between foreign parties with no apparent connection to Virginia. But this time, the trial judge dismissed the case, writing, “Fairfax County, Virginia, USA, is not the world’s defamation court.”
First, the court looked to the long-arm statute and concluded it did not reach the UK defendants’ conduct. Mr. Mireskandari argued that Va. Code § 8.01-328.1(A)(3) applied, which authorizes long-arm jurisdiction for a cause of action arising from “causing tortious injury by an act or omission in this Commonwealth.” He also pointed to subsection (A)(4), which applies to “causing tortious injury in this Commonwealth by an act…outside this Commonwealth if [the defendant] regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this Commonwealth.” The court found both arguments lacking.
Most importantly, the court was not convinced that Mr. Mireskandari suffered any injury in Virginia. He pointed out that he lived in Virginia in the 80s and that he frequently travels to Virginia, but the court found that neither of these things had anything to do with the facts of the dispute. And while he claimed in conclusory terms that his reputation had suffered in Virginia, the court found no facts in the record to support that conclusion, noting that
he lives in California, the subject matter underlying the defamation occurred when he was a UK solicitor, practicing in the UK, at a UK law firm, involving UK matters and the UK police. Not a single paragraph references, for example, him having Virginia clients or a Virginia law firm office, a loss of clientele because of the defamatory articles, or ostracization by Virginia friends.
The court also rejected the notion that gaining access to Mr. Mireskandari’s education records in Virginia as part of the newsgathering process provided a basis for personal jurisdiction. Even assuming it was unlawful to access those records, this defamation case did not arise out of that activity. This case arose from the publication of allegedly defamatory statements, not the research behind that publication.
Because the long-arm statute did not apply, the court did not need to conduct a due process analysis. It did anyway, and found that exercising personal jurisdiction over the UK defendants would not satisfy due process. “The isolated act by Daily Mail of accessing a Virginia database a decade ago is nowhere near the sufficient minimum contacts with the forum or purposeful availment of the privileges of the forum such that maintenance of the suit would not offend traditional notions of fair play and substantial justice,” the court wrote.
Virginia courts seem to have developed a reputation as a hospitable forum for defamation cases, leading out-of-state plaintiffs like Johnny Depp and California congressman Devin Nunes to bring their defamation claims in Virginia rather than in their home state. In the Mireskandari case, the court made clear its views on this practice. “Fairfax County, Virginia, USA, is not the world’s defamation court,” it admonished. The only reason Johnny Depp was permitted to maintain his case here was that the last act for publishing the allegedly defamatory statement was when the Washington Post uploaded the story to the Internet from servers located in Virginia. Moreover, the Depp decision was based on forum non conveniens and not personal jurisdiction.
The test for personal jurisdiction works the same in federal court as it does in state court, though federal courts often skip an analysis of the long-arm statute on the basis it’s not really necessary from a practical standpoint. Virginia’s long-arm statute extends personal jurisdiction over nonresident defendants to the full extent permitted by the Fourteenth Amendment’s Due Process Clause. The statutory and constitutional inquiries therefore essentially merge into one inquiry: if the exercise of personal jurisdiction satisfies constitutional requirements, it will necessarily also satisfy the long-arm statute. (See UMG Recordings, Inc. v. Kurbanov, 963 F.3d 344, 350–51 (4th Cir. 2020)).
A couple of months ago, the Eastern District of Virginia dismissed Joe Alexander’s defamation lawsuit against Adweek, which he had filed against the New York-based publisher in Richmond, Virginia, where Mr. Alexander lives but where Adweek doesn’t maintain any significant contacts. The court made no mention of the long-arm statute but went straight to the due-process analysis and found that minimum contacts with Virginia were lacking.
According to the opinion, Joe Alexander was the Chief Creative Officer for the Martin Agency, a prominent advertising agency in Richmond. At a meeting with other executives in 2017, he learned a coworker had accused him of sexual harassment. Faced with the choice to resign or contest the allegations, he decided to resign. Adweek reported on the incident. In an article written by a New York-based reporter, Patrick Coffee, Adweek reported that:
Two additional women told Adweek that Alexander made improper sexual advances toward them. One, a former executive, said he passed her his hotel key and invited her to his room to have sex during a business trip. They were both married at the time. She told multiple co-workers about the incident, and three of them separately confirmed the story for Adweek. One said this was Alexander’s way of “testing the waters” with women he found attractive.
Another former worker said Alexander joked about threesomes and at one point propositioned her.
Alexander called the article a “hit piece” and sued Adweek and Coffee here in Virginia for defamation, tortious interference, and other claims. The defendants moved to dismiss for lack of personal jurisdiction.
The court had little trouble determining that personal jurisdiction was lacking. It began its analysis by reciting the following three factors:
- whether the defendants purposefully availed themselves of the privilege of conducting activities in Virginia;
- whether the plaintiff’s claim arose out of those activities directed at Virginia; and
- whether the exercise of personal jurisdiction would be constitutionally reasonable.
A court can exercise personal jurisdiction based on an online publication only when that entity:
- directs electronic activity into the State,
- with the manifested intent of engaging in business or other interactions within the State, and
- that the activity creates, in a person within the State, a potential cause of action.
(See ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 714 (4th Cir. 2002)). In other words, the court has to consider whether each defendant manifested an intent to direct their website content to a Virginia audience such that the defendant should reasonably anticipate being haled into court in Virginia. That didn’t happen here, ruled the court.
Adweek is a Delaware limited liability company headquartered in New York. Adweek magazine is a national trade publication covering the advertising industry throughout the United States. Adweek has no employees, offices, bank accounts, or assets in Virginia, and Virginia residents comprise only about two percent of Adweek’s subscribers. There was nothing in the article at issue to suggest Adweek was targeting a Virginia audience. The ads that accompanied the article online were nationwide in scope or focused on New York. Admittedly, the article was about a Virginia resident and a Virginia business, but the Fourth Circuit has already clarified that more is required to satisfy the purposeful availment test. (See Young v. New Haven Advocate, 315 F.3d 256, 263-64 (4th Cir. 2002).
Because the article was targeted at the advertising industry as a whole, rather than to a Virginia audience specifically, the defendants could not reasonably anticipate being haled into court in Virginia. Therefore, to exercise personal jurisdiction over them would violate the Due Process Clause of the United States Constitution.