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[NOTE: This case has been edited for classroom use by the omission of text, citations, and footnotes. See supra at Chapter 04 for discussion of the facts and defamation claim by the same court. See this alternate source for the full opinion.]
Paul L. Friedman, United States District Judge
. . . .
III. DRUDGE'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
Defendant Drudge has moved, pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, for an order dismissing this action for lack of personal jurisdiction or, alternatively, to transfer it to the United States District Court for the Central District of California.In order for this Court to maintain personal jurisdiction over a non-resident defendant, jurisdiction must be proper under the District of Columbia long-arm statute and consistent with the demands of due process. Plaintiffs have the burden of establishing that this Court has personal jurisdiction over defendant Drudge and alleging specific facts upon which personal jurisdiction may be based.
A. D.C. Long-Arm Statute
The only provision of the District of Columbia long-arm statute that is relevant to this case is Section 13-423(a)(4), which provides:
A District of Columbia court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person's ... causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the District of Columbia.
D.C. Code § 13-423(a)(4). In order to establish personal jurisdiction under this provision a plaintiff must make a prima facie showing that (1) plaintiff suffered a tortious injury in the District of Columbia; (2) the injury was caused by the defendant's act or omission outside of the District of Columbia; and (3) defendants had one of three enumerated contacts with the District of Columbia. Plaintiffs must satisfy all three requirements and also establish minimum contacts within the confines of due process before the Court can exercise personal jurisdiction over defendant Drudge.
It is undisputed that the Drudge Report transmission in question was written, published and transmitted by defendant Drudge from his computer located in Los Angeles, California. It is also undisputed that the tortious injury caused by defendant Drudge's act of transmitting the report was suffered by the Blumenthals in the District of Columbia. The only question before this Court therefore is whether defendant Drudge (1) regularly does or solicits business in the District of Columbia, or (2) derives substantial revenue from goods used or consumed or services rendered in the District, or(3) engages in any other persistent course of conduct here. See D.C. Code §13-423(a)(4).
Justice Ginsburg in Crane v. Carr has described these as the "plus factors," factors that demonstrate some "reasonable connection" between the jurisdiction in which the court sits "separate from and in addition to" the injury caused in the jurisdiction. Crane v. Carr, 814 F.2d at 762. The "plus factor" or factors "need not be related to the act that caused the injury; all that is required is 'some other reasonable connection' between the defendant and the forum." Id. at 762-63. The "plus factor" does not itself provide the basis for jurisdiction (the injury does) "but it does serve to filter out cases in which the inforum impact is an isolated event and the defendant otherwise has no, or scant, affiliation with the forum." Id. at 763. The question here is whether plaintiffs have shown a "persistent course of conduct" by defendant Drudge in the District of Columbia or other reasonable connections between the District and Drudge besides the alleged defamatory statement and the alleged injury.
Plaintiffs point out that the Drudge Report has been regularly transmitted over the Internet to Drudge's subscribers and repeatedly posted on Drudge's web site, where it has been available 24 hours a day to District residents; that Drudge personally maintains a list of email addresses, which enables him to distribute the Drudge Report to anyone who requests it, including e-mail addresses in the District of Columbia; and that he has solicited contributions and collected money from persons in the District of Columbia who read the Drudge Report. In addition, they state that Drudge has traveled to the District of Columbia twice, including once for a C-SPAN interview that was for the express purpose of promoting the Drudge Report. Plaintiffs also note, and defendant Drudge admits, that Drudge has been in contact (via e-mail, telephone and the U.S. mail) with District residents who supply him with gossip.
Defendant Drudge argues that he has not specifically targeted persons in the District of Columbia for readership, largely because of the non-geographic nature of communicating via the Internet. For example, while it is true that subscribers to the Drudge Report include District residents, generally the only information about those subscribers available to Drudge is an e-mail address -- an address that, unlike a postal address or even a telephone number, typically provides no geographic information. For instance, if Jane Doe from the District of Columbia subscribes to the Drudge Report, it is most likely sent to an email address such as "firstname.lastname@example.org," and Drudge has no idea where Jane Doe lives or receives the Report. The same is true for on-line browsers who read the Drudge Report, since screen names used to browse the web also are not generally identified by geographic location. Defendant Drudge also claims that he has never advertised the Drudge Report column or web site in physical locations or in local newspapers in the District of Columbia.
Defendant Drudge also argues that his travel to Washington, D.C. is not sufficient to establish a persistent course of conduct in the District of Columbia because his contacts have been so infrequent and sporadic that they are simply not enough to be viewed as "persistent." As for his solicitation of contributions in the District of Columbia, Drudge claims that his solicitation was directed to all readers of the Drudge Report and not specifically aimed at the District. Furthermore, from that appeal Drudge received only approximately $250 from fewer than fifteen persons in the District of Columbia. The Court concludes that plaintiffs have the better of the argument; defendant Drudge has had sufficient contacts with the District of Columbia to warrant the exercise of personal jurisdiction.
The legal questions surrounding the exercise of personal jurisdiction in "cyberspace" are relatively new, and different courts have reached different conclusions as to how far their jurisdiction extends in cases involving the Internet. Generally, the debate over jurisdiction in cyberspace has revolved around two issues: passive web sites versus interactive web sites, and whether a defendant's Internet-related contacts with the forum combined with other non-Internet related contacts are sufficient to establish a persistent course of conduct.As one court has explained:
At one end of the spectrum are situations where a defendant clearly does business over the Internet. If the defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper. At the opposite end are situations where a defendant has simply posted information on an Internet Web site which is accessible to users in foreign jurisdictions. A passive Web site that does little more than make information available to those who are interested in it is not grounds for the exercise [of] personal jurisdiction. The middle ground is occupied by interactive Web sites where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site.
Zippo Mfg, Co. v. Zippo Dot Com. Inc., 952 F. Supp. 1119, 1124 (W. D. Pa. 1997).
In Heroes, Inc. v. Heroes Foundation, Judge Flannery found that he did not need to decide whether the defendant's home page by itself subjected the defendant to personal jurisdiction in the District of Columbia because the defendant had substantial non-Internet related contacts with the District that were sufficient under the D.C. long-arm statute. The defendants's home page solicited contributions and provided a toll-free number which browsers used to donate money; the solicitation also appeared in advertisements in the Washington Post. Judge Flannery concluded that these non-Internet related contacts with the District of Columbia, together with the maintenance of a web site constantly available to D.C. residents, constituted a persistent course of conduct that reasonably connected the defendant to the forum. Heroes. Inc, v. Heroes Foundation, 958 F. Supp. 1, 4-5 (D.D.C. 1996); see also Telco Communications v. An Apple A Day, 977 F. Supp. 404, 407 (E.D. Va. 1997) (posting of web site advertisement solicitation over the Internet, which could be accessed by Virginia residents 24 hours a day, is a persistent course of conduct; two or three press releases rise to the level of regularly doing or soliciting business); Digital Equipment Corp. v. Altavista Technology. Inc., 960 F. Supp. at 467 (maintenance of web site that can be accessed by Massachusetts citizens 24 hours a day coupled with other contacts is persistent course of conduct sufficient to confer personal jurisdiction).n16 The courts in each of these cases required only a relatively tenuous electronic connection between the creator of a web site and the forum to effect personal jurisdiction, so long as there were sufficient other non-Internet connections.
As noted, many courts have focused on the level of interactivity of a web site in determining whether there was personal jurisdiction. In Cybersell. Inc. v. Cybersell, Inc., the court noted that an interactive web site allows users to "exchange information with the host computer" and concluded that courts must look at the "level of interactivity and [the] commercial nature of the exchange of information that occurs on the Web site to determine if sufficient contacts exist to warrant the exercise of jurisdiction." Cybersell, Inc v. Cybersell, Inc., 130 F.3d 414, 418 (9th Cir. 1997) (internal quotation marks omitted). Compare Maritz, Inc. v. Cybergold, Inc., 947 F. Supp. 1328, 1332-33 (E.D. Mo. 1996) (exercise of jurisdiction warranted where defendant's interactive web site encouraged browsers to add their address to mailing list that subscribed the user to the service), and Zippo Mfg, Co. v. Zippo Dot ComInc., 952 F. Supp. at 1122-23 (interactive web site where defendants contracted with 3,000 individuals and seven internet providers in forum state conferred personal jurisdiction), with Bensusan Restaurant Corp. v. King, 937 F. Supp. 295, 299-300 (S.D.N.Y. 1996), aff'd, 126 F.3d 25 (2d Cir. 1997) (passive web site which only posted information for interested persons who may have accessed the web site not sufficient for exercise of jurisdiction), and Hearst Corporation v. Goldberger, No. 96 Civ. 3620 (PKL) (AJP), 1997 WL 97097, at * 15 (S.D.N.Y. Feb. 26, 1997) (no persistent course of conduct because defendant's passive web site only provided information regarding future services).
Under the analysis adopted by these courts, the exercise of personal jurisdiction is contingent upon the web site involving more than just the maintenance of a home page; it must also allow browsers to interact directly with the web site on some level. In addition, there must also be some other non-Internet related contacts between the defendant and the forum state in order for the court to exercise personal jurisdiction. Because the Court finds that defendant Drudge has an interactive web site that is accessible to and used by District of Columbia residents and, in addition, that he has had sufficient non-Internet related contacts with the District of Columbia, the Court concludes that Drudge has engaged in a persistent course of conduct in the District. The exercise of personal jurisdiction over defendant Drudge by this Court therefore is warranted.
Despite the attempts of Drudge and his counsel to label the Drudge Report as a "passive" web site, the Court finds this characterization inapt. The Drudge Report's web site allows browsers, including District of Columbia residents, to directly e-mail defendant Drudge, thus allowing an exchange of information between the browser's computer and Drudge's host computer. See Zippo Mfg. Co. V. Zippo Dot Com. Inc., 952 F. Supp. at 1124. In addition, browsers who access the website may request subscriptions to the Drudge Report, again by directly e-mailing their requests to Drudge's host computer. In turn, as each new edition of the Drudge Report is created, it is then sent by Drudge to every e-mail address on his subscription mailing list, which includes the e-mail addresses of all browsers who have requested subscriptions by directly e-mailing Drudge through his web site. The constant exchange of information and direct communication that District of Columbia Internet users are able to have with Drudge's host computer via his web site is the epitome of web site interactivity.
Not only is defendant Drudge's web site interactive, the subject matter of the Drudge Report primarily concerns political gossip and rumor in Washington, D.C. Defendant Drudge characterizes himself as the "Thomas Paine of the Internet, ... who is circulating information for the citizenry reporting on [federal] governmental abuses .... and earthquakes . . . at the White House." Even though Drudge may not advertise in physical locations or local newspapers in Washington, D.C., the subject matter of the Drudge Report is directly related to the political world of the Nation's capital and is quintessentially "inside the Beltway" gossip and rumor. Drudge specifically targets readers in the District of Columbia by virtue of the subjects he covers and even solicits gossip from District residents and government officials who work here.n18 By targeting the Blumenthals who work in the White House and live in the District of Columbia, Drudge knew that "the primary and most devastating effects of the [statements he made] would be felt" in the District of Columbia. Telco Communications v. An Apple A Day, 977 F. Supp. at 407. He should have had no illusions that he was immune from suit here.
In addition, defendant Drudge also solicited contributions from District residents via the Drudge Report's homepage. While during the time period relevant to this case, defendant Drudge may have received only $250 from fifteen District of Columbia residents from that advertised solicitation, the Drudge Report was always accessible in the District, via AOL and through Drudge's world wide web site, making the advertised solicitation was repeatedly available to District residents.
Defendant Drudge also has had a number of non-Internet related contacts with the District. He sat for an interview with C-SPAN in Washington, D.C. and visited the District of Columbia on at least one other occasion. He also contacts District of Columbia residents via telephone and the U.S. mail in order to collect gossip for the Drudge Report. These non-Internet related contacts with the District of Columbia, coupled with the interactive nature of Drudge's web site, which particularly focuses on Washington gossip, are contacts that together are sufficient to establish that defendant Drudge engaged in a persistent course of conduct in the District of Columbia.
In sum, the Court concludes that the circumstances presented by this case warrant the exercise of personal jurisdiction under subsection (a)(4) of the District of Columbia long-arm statute because of: (1) the interactivity of the web site between the defendant Drudge and District residents; (2) the regular distribution of the Drudge Report via AOL, e-mail and the world wide web to District residents; (3) Drudge's solicitation and receipt of contributions from District residents; (4) the availability of the web site to District residents 24 hours a day; (5) defendant Drudge's interview with C-SPAN; and 6) defendant Drudge's contacts with District residents who provide gossip for the Drudge Report. The requirements of subsection (a)(4) of the District of Columbia long-arm statute have been satisfied.
B. Due Process
Traditionally, in order to exercise personal jurisdiction over an out-of-state defendant, a court must determine whether the defendant has sufficient minimum contacts with the jurisdiction in which the court sits such that maintenance of a suit does not offend "traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). While in the Internet context there must be "something more" than an Internet advertisement alone "to indicate that the defendant purposefully (albeit electronically) directed his activity in a substantial way to the forum state," Cybersell. Inc. v. Cybersell. Inc., 130 F.3d at 414, such that he should "reasonably anticipate being haled into court" there, Burger King Corp. v. Rudzewic, 471 U.S. 462, 474-75 (1985), that test is easily met here. See, e.g., Digital Equipment Corp. v. Altavista Technology, Inc., 960 F. Supp. at 469-70. Because subsection (a)(4) of the long-arm statute does not reach the outer limits of due process, and the Court has concluded that there are sufficient "plus factors" to meet the requisites of subsection (a)(4), it follows that there are also sufficient minimum contacts to satisfy due process. Drudge's motion to dismiss or transfer for want of personal jurisdiction therefore will be denied.
An Order and Judgment consistent with this Opinion shall be entered this same day.
16 The provisions of the long-arm statutes involved in Telco and Digital Equipment (Massachusetts long-arm statute, M.G.L. ch. 223A § 3(d); Virginia long-arm statute, Section 8.01-32 8. 1 (A)(4)) are quite similar to if not exactly the same as subsection (a)(4) of the District of Columbia long-arm statute.
18 Drudge is not a reporter, a journalist or a newsgatherer. He is, as he himself admits, simply a purveyor of gossip. His argument that he should benefit from the "news gathering exception" to subsection (a)(4) of the long-arm statute merits no serious consideration.
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