Ecf 86

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA

CHARLOTTESVILLE DIVISION
BRENNAN M. GILMORE, CASE NO.: 3:18-cv-00017-NCM-JCH
Plaintiff
v.
ALEXANDER JONES, et al., BRIEF IN REPLY IN OPPOSITION

TO SCHOLARS’ AMICUS BRIEF OF
Defendants (DKT. 72-1) BY MR. HOFT, MR.
CREIGHTON, MR. WILBURN, MS.
HICKFORD AND WORDS-N-IDEAS,
LLC
Case 3:18-cv-00017-NKM-JCH Document 86 Filed 06/26/18 Page 1 of 16 Pageid#: 1405

TABLE OF CONTENTS
Table of Authorities iii
Introduction and Summary of Argument 1
Facts 1
I. Scholars’ Amicus Has Failed to Demonstrate That This Court Can Exercise Personal
Jurisdiction over These Defendants 2
A. The Amicus Scholars Have Failed to Show that these Defendants Have Engaged in
Any Conduct That Meets the Requirements of Virginia’s Long-Arm Statute 3
B. The Amicus Scholars’ Proposed Assertion of Jurisdiction Would Violate the Due
Process Clause of the Fourteenth Amendment 6
Conclusion 9
ii

TABLE OF AUTHORITIES
CASES
ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707 (4th Cir. 2002) 8
Bennett v. OmniSOURCE Corp., No. 7:14CV00309 (W.D. Va. Nov. 4, 2015) 2
Bergaust v. Flaherty, 57 Va. App. 423 (2011) 5
Bonello, et al. v. Lieto, et al., No. CL-2011-10159 (Va. Ffx. Cir. Jan. 24, 2012) 5
Burger King Corporation v. Rudzewicz, 471 U.S. 462 (1985) 8
Calder v. Jones, 465 U.S. 783 (1984) 7
Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390 (4th Cir. 2003) 8
CFA Inst. v. Inst. of Chartered Fin. Analysts of India, 551 F.3d 285 (4th Cir. 2009) 3
Hanson v. Denckla, 357 U.S. 235 (1958) 7
Ins. Co. of Ireland, Ltd v. Compagnie Bauxites Guinee, 456 U.S. 694 (1982) 4
Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984) 7
Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941) 4
Krantz v. Air Line Pilots Ass’n, Intern., 245 Va. 202 (1993) 4
Nathan v. Takeda Pharm. Am. Inc., et al., No. CL-2010-2064 (Va. Ffx. Cir. Aug. 2, 2011) 4
N.Y. Com. Bank v. Heritage Green Dev., LLC, No. CL-2016-13753 (Va. Ffx. Cir. Mar. 7, 2017)
Washington v. Lucas, No. 1221-14-3 (Va. App. Dec. 30, 2014) 5
Young v. New Haven Advocate, 315 F.3d 256 (4th Cir. 2002) 6 and 8-9
iii

FEDERAL AND STATE STATUTES AND RULES
VA. CODE § 8.01-328.1 passim
Fed. R. Civ. P. 12 passim
WEBSITES
Julia Dahl, Trayvon Martin shooting: A timeline of events, CBS NEWS, July 12, 2013,
https://www.cbsnews.com/news/trayvon-martin-shooting-a-timeline-of-events/ (last visited
June 25, 2018) 10
Executive Secretary, the Supreme Court of Virginia, Opinions, VIRGINIA’S JUDICIAL SYSTEM,
http://www.courts.state.va.us/opinions/home.html (last visited June 25, 2018) 5
iv

INTRODUCTION AND SUMMARY OF ARGUMENT
As a preliminary matter, this brief responds solely to the arguments presented in the Amicus
Brief of Scholars in Support of Plaintiff (Dkt. 72-1) (the “Scholars’ Amicus”), presented by and on
behalf of a group of law professors (the “Amicus Scholars”). That amicus addresses a single
issue—whether personal jurisdiction can lie against the Undersigned Defendants who reside out-
of-state. This brief will only address whether this Court can exercise personal jurisdiction over Mr.
Hoft, Mr. Wilburn, Mr. Creighton, Ms. Hickford, or Words-N-Ideas, LLC (“these Defendants”). 1
Furthermore, these Defendants do not waive any rights of jurisdiction, notice, process, joinder, or
venue.
The most basic mistake the Scholars’ Amicus makes is that it argues that Virginia’s Long-
Arm Statute, VA. CODE § 8.01-328.1, can simply be ignored. This is incorrect, and when this Court
examines the evidence, it is clear that the Plaintiff has failed to show that the requirements of this
statute have been met. Further, even if VA. CODE § 8.01-328.1’s requirements had been met, this
assertion of jurisdiction would not satisfy due process because there is no evidence before this
Court of any contacts between these Defendants and Virginia, let alone the minimum contacts
required by due process. Accordingly, the Scholars’ Amicus fails to establish that this Court has
personal jurisdiction over these Defendants.
FACTS
This brief incorporates the statement of facts included in the “Brief in Support of the Joint
Motion to Dismiss and Motion for Attorney Fees and Costs of Defendants Hoft, Creighton,
Stranahan, Wilburn, Hickford and Words-N-Ideas, LLC” (Dkt. 47) (the “MTD”) 2-7, and notes
1
Mr. Stranahan does not join this brief because, as a resident of Virginia, he has no credible
argument challenging personal jurisdiction over him in Virginia.

only the following additional facts:
The Plaintiff has claimed that this Court can validly exercise personal jurisdiction over
these Defendants. In their MTD, these Defendants presented an evidence-based challenge to that
assertion of jurisdiction. They submitted declarations showing that they wrote and published the
relevant pieces and video outside of Virginia, that they “do not regularly do business in Virginia,
solicit business in Virginia, engage in any persistent course of conduct in Virginia, or derive any
revenue from goods used or consumed or services rendered in Virginia,” and that none of their
articles were targeted toward a Virginia audience. MTD, Exhibit B, ¶¶ 2-3; Exhibit C, ¶¶ 2-3;
Exhibit D, ¶¶ 3-4; and Exhibit E, ¶¶ 2-3. In his “Plaintiff’s Memorandum of Points and Authorities
in Opposition to Defendants’ Motion to Dismiss” (Dkt. 70) (“Opp. to MTD”), the Plaintiff has
presented no evidence to rebut these Defendants’ evidence.
The MTD did admit that these Defendants wrote the articles attributed to them and that
they published the articles on the Internet. However, the latest Declaration of William Hoge,
attached as Exhibit A establishes that when something is posted to the Internet, it is not typically
transmitted to any particular state unless a person in that state unilaterally accesses that website.
Exhibit A, ¶ 3.
I.
SCHOLARS’ AMICUS HAS FAILED TO DEMONSTRATE THAT THIS COURT CAN
EXERCISE PERSONAL JURISDICTION OVER THESE DEFENDANTS
Although this brief only addresses the arguments made by the Amicus Scholars, these
Defendants have presented an evidence-based attack on this assertion of jurisdiction. MTD 22-27.
Accordingly, it is the Plaintiff’s burden to show prima facie evidence supporting this assertion of
personal jurisdiction. Bennett v. OmniSOURCE Corp., No. 7:14CV00309, at *3-4 (W.D. Va. Nov.
4, 2015). Therefore, it is necessary, even when responding to the Amicus Scholars, to address the

state of the evidence. Remarkably, the Plaintiff has not presented any evidence supporting his
assertion of jurisdiction.
This lack of evidence undermines every argument that Amicus Scholars make. First, it is
incorrect to argue—as the Scholars’ Amicus does—that Virginia’s Long-Arm Statute can just be
ignored. Second, when one does examine VA. CODE § 8.01-328.1(A)(1) and (4)—the only
provisions invoked by the Plaintiff—it is plain that the requirements of these provisions have not
been met. Third, even if the requirements of Virginia’s Long-Arm Statute were otherwise satisfied,
there is no evidence of any contacts between these Defendants and the Commonwealth, let alone
the minimum contacts required by due process. This Court can dismiss these Defendants for lack
of personal jurisdiction based on either a failure to satisfy the Virginia Long-Arm Statute or
because it would violate due process. Because both justifications apply in this case, this Court
should dismiss these Defendants for lack of personal jurisdiction.
A. The Amicus Scholars Have Failed to Show that these Defendants Have Engaged in
Any Conduct That Meets the Requirements of Virginia’s Long-Arm Statute.
A remarkable feature of the Scholars’ Amicus is that it asserts that it is appropriate to simply
ignore the strictures of Virginia’s Long-Arm Statute. The Scholars’ Amicus states that
Because the Virginia long-arm statute has been construed as coterminous with the
limits of constitutional due process, the two inquiries merge into one: if defendants’
contacts ‘in Virginia satisfy due process, then they also satisfy Virginia’s long-arm
statute.’ CFA Inst. v. Inst. of Chartered Fin. Analysts of India, 551 F.3d 285, 293
(4th Cir. 2009), while the Opp. to MTD simply implies that they are following the
same analysis.
Scholars’ Amicus 3.
The Amicus Scholars’ belief that this Court can simply ignore the language of the Virginia
Long-Arm Statute is incorrect. The (U.S.) Supreme Court has instructed that “in the absence of a
federal rule or statute establishing a federal basis for the assertion of personal jurisdiction, the

personal jurisdiction of the district courts is determined in diversity cases by the law of the forum
State.” Ins. Co. of Ireland, Ltd v. Compagnie Bauxites Guinee, 456 U.S. 694, 711 (1982). This
avoids the danger of unequal administration of justice in diversity cases. See Klaxon Co. v. Stentor
Elec. Mfg. Co., 313 U.S. 487, 496 (1941). No such federal statute or rule is applicable to this case
and, therefore, state law controls on personal jurisdiction.
Thus, this Court must treat the question of personal jurisdiction exactly as a Virginia state
court would. Virginia Courts do not skip the question of whether there can be personal jurisdiction
under VA. CODE § 8.01-328.1 (or any other statute) and often decline to exercise jurisdiction solely
based on a failure to satisfy Virginia law. For instance, in Krantz v. Air Line Pilots Ass’n, Intern.,
245 Va. 202, 205 (1993), the Supreme Court of Virginia said that “the function of [Virginia’s]
long-arm statute is to assert jurisdiction over nonresidents who engage in some purposeful activity
in Virginia, to the extent permissible under the Due Process Clause” of the Fourteenth
Amendment. However, the Krantz court did not claim that this meant that it could ignore Virginia’s
Long-Arm Statute: Instead the Krantz court first determined whether the statute had been satisfied
and then, after determining that a statutory basis existed for personal jurisdiction, the Krantz court
found that due process was also satisfied. That court engaged in precisely the sort of two-part
analysis that the Amicus Scholars urge this Court to skip.
Further, this is the regular practice of Virginia Courts to this day. For instance, in Nathan
v. Takeda Pharm. Am. Inc., et al., No. CL-2010-2064 (Va. Ffx. Cir. Aug. 2, 2011) (see Exhibit B),
the Fairfax County Circuit Court allowed for jurisdiction over a foreign company, but only after
determining first that VA. CODE § 8.01-328.1 had been satisfied, and that the assertion of
jurisdiction did not offend due process. Similarly, in N.Y. Com. Bank v. Heritage Green Dev., LLC,

No. CL-2016-13753 (Va. Ffx. Cir. Mar. 7, 2017) 2 and in Bonello, et al. v. Lieto, et al., No. CL-
2011-10159 (Va. Ffx. Cir. Jan. 24, 2012) (attached as Exhibit C), the Fairfax County Circuit Court
dismissed cases solely based on a failure to satisfy the terms of V A. CODE § 8.01-328.1.
Meanwhile, in Bergaust v. Flaherty, 57 Va. App. 423 (2011), the Virginia Court of Appeals was
confronted with a dismissal by the Fairfax County Circuit Court based on both a failure to satisfy
VA. CODE § 8.01-328.1 and based on due process, but affirmed the lower court’s decision solely
based on Virginia’s long-arm statute as follows:
because we hold the circuit court did not have personal jurisdiction over Flaherty
under Virginia’s long arm statute, we need not consider further whether the exercise
of personal jurisdiction over Flaherty exceeds the limits of due process under the
United States Constitution.
Id. at 436. Further, although it is an unpublished opinion, in Washington v. Lucas, No. 1221-14-3
(Va. App. Dec. 30, 2014),3 the Virginia Court of Appeals affirmed a circuit court decision that
dismissed a case for want of personal jurisdiction based solely on V A. CODE § 8.01-328.1. That
decision may not have precedential value,4 but it shows how the Virginia Court of Appeals actually
practices, as late as 2014. Plainly, Virginia Courts do not skip over VA. CODE § 8.01-328.1, and
this Court should not skip the statute, either.
When this Court actually examines the statutory assertion of jurisdiction in the First
Amended Complaint (Dkt. 29) (“FAC”), it should be clear that the Plaintiff has failed to properly
assert personal jurisdiction. The Plaintiff invokes §8.01-328.1(A)(1), FAC ¶ 4, but that subsection
2
This opinion is accessible at https://www.fairfaxcounty.gov/circuit/sites/circuit/files/assets/
documents/pdf/opinions/cl-2016-13753-ny-comm-bank-v-heritage-green.pdf.
3
This opinion is accessible at http://www.courts.state.va.us/opinions/opncavwp/1221143.pdf.
4
Executive Secretary, the Supreme Court of Virginia, Opinions, VIRGINIA’S JUDICIAL SYSTEM,
http://www.courts.state.va.us/opinions/home.html (last visited June 25, 2018) (stating that
unpublished opinions are “not designated by the Court as having precedential value or as otherwise
having significance for the law or legal system” (emphasis in original)).
5

only applies when the cause of action arises from the Defendant having “[t]ransact[ed] any
business in this Commonwealth”—which wholly fails to relate to the allegations in this case.
The Plaintiff also invokes §8.01-328.1(A)(4), FAC ¶ 4, which applies to a tortious injury
in Virginia caused by an act or omission outside of Virginia, but that only applies if the person
“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.”
As noted above, supra 2, the declarations submitted in this case establish that Mr. Hoft, Mr.
Creighton, Mr. Wilburn, Ms. Hickford and Words-N-Ideas, LLC, have not met this requirement.
That is, they do not regularly do or solicit business in Virginia, or engage in any other persistent
course of conduct in Virginia, and do not derive substantial revenue from goods used or consumed
or services rendered in Virginia. With no other evidence to consider, this Court should find that
the Plaintiff has failed to show that the requirements of VA. CODE § 8.01-328.1(A)(1) or (4) have
been met and dismiss this case for want of personal jurisdiction.
B. The Amicus Scholars’ Proposed Assertion of Jurisdiction Would Violate the Due
Process Clause of the Fourteenth Amendment.
Even if the Amicus Scholars could show that the Plaintiff had satisfy the requirements of
the long-arm statute, such an assertion of jurisdiction would offend due process because there is
no evidence before this Court of any contact between these Defendants and the Commonwealth.
Again, the lack of evidence on the Plaintiff’s side is devastating. Young v. New Haven
Advocate, 315 F.3d 256, 263 (4th Cir. 2002) gave the following test for the exercise of personal
jurisdiction with respect to due process:
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) that activity creates, in a person within the State, a potential cause
of action cognizable in the State’s courts.”

There is no evidence before this Court that the first prong of the test is met and the declarations
submitted with the MTD and attached to this Reply establish that these Defendants did not direct
any electronic activity into the state.
The Scholars’ Amicus discusses the minimum contacts test, but one is tempted to ask “what
contacts?” In Calder v. Jones, 465 U.S. 783 (1984), the contact was obvious. That case involved
alleged libel contained in the weekly newspaper, the National Enquirer. When holding that
California could exercise jurisdiction over the Enquirer in a defamation case, the Supreme Court
observed:
The Enquirer is a Florida corporation with its principal place of business in Florida.
It publishes a national weekly newspaper with a total circulation of over 5 million.
About 600,000 of those copies, almost twice the level of the next highest State, are
sold in California.
Id. at 785. Therefore, in Calder, there were sufficient minimum contacts between the Enquirer and
the state of California. Likewise, in Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984), a
companion case to Calder, Hustler Magazine was found to be subject to personal jurisdiction in
New Hampshire, because they regularly distributed their magazines into the state.
By sending physical copies of their periodicals, the defendants in Calder or Keeton
“purposefully avail[ed] [themselves] of the privilege of conducting activities within the forum
State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U.S. 235,
253 (1958). So, for instance, if the National Enquirer sent a shipment of its newspapers into
California, it would enjoy the benefit of that state’s laws in the sense that if someone robbed the
carrier of the shipment, California law enforcement would presumably seek to catch the
perpetrator, punish him or her, and return the stolen merchandise and/or seek restitution. This is
not the case with a website: There are no physical objects being sent into any state and no property

to be protected by Virginia law enforcement.
Nor can it be said that electronic signals are sent by these Defendants into Virginia, with
such signals being metaphorically similar to sending printed copies of a newspaper or magazine.
The Amicus Scholars apparently believe that when one publishes on the Internet, one is sending
that information to every state in the union and, indeed, every country in the world. This is not the
case. As established by the latest Declaration of William Hoge, Exhibit A, ¶ 3, when a person posts
on the Internet, it is sent to a server where most of the world can access the information, but the
information is only transmitted into a specific state when a person in that state enters the address
of the file sought into his or her web browser. This is why cases such as ALS Scan, Inc. v. Digital
Service Consultants, 293 F.3d 707, 717 (4th Cir. 2002) (“If we were to conclude as a general
principle that a person’s act of placing information on the Internet subjects that person to personal
jurisdiction in each State in which the information is accessed, then the defense of personal
jurisdiction, in the sense that a State has geographically limited judicial power, would no longer
exist”), Young, 315 F.3d at 263 (“the newspapers’ websites could be accessed anywhere, including
Virginia”), and Carefirst of Md. v. Carefirst Pregnancy Ctrs., 334 F.3d 390, 394 (4th Cir. 2003)
(“CPC’s sole contact with Maryland springs from its operation of an Internet website, accessible
from anywhere in the world through any one of several web addresses”) discuss the relevant
contacts via websites in terms of being accessed, rather than being transmitted.
However, access alone cannot satisfy the strictures of due process. Contacts initiated solely
by third parties who happen to be in Virginia do not satisfy the requirement of purposeful availment
because they are caused by the unilateral acts of third parties. As stated in Burger King
Corporation v. Rudzewicz, 471 U.S. 462, 475 (1985), “This purposeful availment requirement
ensures that a defendant will not be haled into a jurisdiction solely as a result of random, fortuitous,

or attenuated contacts, or of the unilateral activity of another party or a third person.” (internal
citations and quotation marks removed). That is reflected in the first part of the Young test for
Internet jurisdiction, requiring that a person “direct[] electronic activity into the State.” 315 F.3d
at 263.
However, even if the unilateral act by third persons of accessing these Defendants’
websites allowed for this state to exercise jurisdiction in theory, the Plaintiff’s assertion of
jurisdiction would crash, again, on the complete lack of evidence presented by the Plaintiff. The
Plaintiff has failed to show that a single person has accessed any of these Defendants’ websites
while in Virginia. There are allegations in the Complaint to that effect, but absolutely no evidence.
With no evidence of any contacts, let alone the minimum contacts required by due process, this
Court has no factual basis allowing it to exercise personal jurisdiction over these Defendants.
In summary, there is no absolutely no evidence that this Court has personal jurisdiction
over Mr. Hoft, Mr. Creighton, Mr. Wilburn, Ms. Hickford or Words-N-Ideas, LLC. The Amicus
Scholars wrongfully ignore the requirements of the Virginia Long-Arm Statute, and the undisputed
evidence demonstrates that these Defendants’ conduct have not met the requirements of the statute.
Further, there is no evidence of the minimum contacts required by due process—or indeed any
contacts at all. Accordingly, this Court should dismiss this case with respect to these Defendants
under Fed. R. Civ. P. 12(b)(2).
CONCLUSION
In the end, this assertion of personal jurisdiction falters on the evidence: These Defendants
chose to present evidence on the subject of jurisdiction, and the Plaintiff did not. The Amicus
Scholars are powerless to change that reality. The Scholars’ Amicus erroneously attempts to skip
over the question of whether the conduct satisfies Virginia’s Long-Arm Statute and, when the

statute is applied, the undisputed evidence shows that its requirements have not been met.
Likewise, even if the long-arm statute was satisfied, the requirements of due process have not been
met because there is no evidence before this Court that these Defendants have purposefully availed
themselves of the privilege of conducting activities within the forum state.
This is not a dry, academic question. Under the Amicus Scholars’ approach, a person living
in Alaska could write on Twitter that “George Zimmerman murdered Trayvon Martin,” discussing
a controversial event in Florida,5 and Mr. Zimmerman, a Floridian, could hale that Alaskan all the
way to Florida on a claim he was defamed. It may further turn out that by the end of that trial, that
this Alaskan would prove that in fact Mr. Zimmerman did kill Trayvon Martin without lawful
excuse or justification. However, even as that hypothetical Alaskan wins, he or she would still lose
by being punished with thousands of dollars in travel costs alone. If simply discussing an event in
a state is sufficient to hale a person into that state to face trial, expression will be greatly chilled
even when that person is confident that the facts are on his or her side, because he or she would be
afraid of the costs of defending suit, including travel.
Thankfully, the law of personal jurisdiction requires more than simply the fact that a person
wrote about a Virginian or an event in Virginia to hale people far from their homes into a Virginia
court. This does not mean a meritorious plaintiff cannot seek justice, but such a plaintiff is required
to decide whether the costs he or she will incur to pursue each defendant in a jurisdiction where
that defendant has a meaningful connection with the forum will be worth it. Therefore, dismissing
this case for lack of personal jurisdiction is not merely a technical victory; it promotes an efficient
evaluation of the costs and benefits of such claims in a manner that favors our most precious
5
See generally Julia Dahl, Trayvon Martin shooting: A timeline of events, CBS NEWS, July 12,
2013, https://www.cbsnews.com/news/trayvon-martin-shooting-a-timeline-of-events/ (last visited
June 25, 2018) (providing an overview of this series of events).
10

freedom of expression.
For all of these reasons, this Court should dismiss this case under Fed. R. Civ. P. 12(b)(2).
Tuesday, June 26, 2018 Respectfully submitted,
s/ Aaron J. Walker
Aaron J. Walker, Esq.
Attorney for Defendants Hoft, Stranahan, Creighton,
Wilburn, Hickford and WNI
Va. Bar# 48882
7537 Remington Road
Manassas, Virginia 20109
(703) 216-0455
AaronJW72@gmail.com
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United
States District Court for the Western District of Virginia on Wednesday, June 26, 2018. All
participants in the case will be served automatically.
s/ Aaron J. Walker
11

List of Exhibits:
Exhibit A: Declaration of William Hoge
Exhibit B: Nathan v. Takeda Pharm. Am. Inc., et al.
Exhibit C: Bonello, et al. v. Lieto, et al.
12

EXHIBIT A
Case 3:18-cv-00017-NKM-JCH Document 86-1 Filed 06/26/18 Page 1 of 3 Pageid#: 1421

Brennan Gilmore IN THE
UNITED STATES DISTRICT COURT
v. FOR THE WESTERN DISTRICT OF VIRGINIA
Charlottesville Division
Alex Jones, et al.
Case No. 18-CV-00017
DECLARATION OF WILLIAM JOHN JOSEPH HOGE
1. My name is William John Joseph Hoge. I am over eighteen (18) years
of age, am not a party to the above captioned matter, have personal knowledge of
the facts contained herein, and am competent to be a witness.
2. I am the operator of multiple websites on the Internet, including a
business web domain, wjjhoge.com (which I have operated since 6 January, 2000),
and a blog, hogewash.com (which I operated since 24 July, 2011). As such, I have
expert knowledge of how such websites function and are accessed by the public. I
have a Bachelor of Engineering degree in Electrical Engineering (Vanderbilt
University, May, 1970) and am presently employed as an engineering contractor at
NASA’s Goddard Space Flight Center.
3. When a file such as a blog article or YouTube video is posted to the
Internet, it is not normally broadcast to the Internet at large. Rather, it is stored at
a unique file address on a computer (a server). The file may then be accessed using
web browsing software. Typing the proper Uniform Resource Locator (URL) in the
address window of a web browser directs the browser to find the desired file using

the Internet’s Domain Name System to locate the server and request the file.
Specific, intentional action by the person seeking the file is required.
I, William John Joseph Hoge, declare under penalty of perjury that the
25 June, 2018
foregoing is true and correct. Executed on _____________________.
_________________________
William John Joseph Hoge

EXHIBIT B

Noah Nathan v. Takeda Pharmaceuticals America Inc., et al. (Va. Cir., 2011)
Noah Nathan
v.
Takeda Pharmaceuticals America Inc.,
et al.
Dear Counsel:
Case No. CL-2010-2064
Noah Nathan ("Plaintiff") has brought
Jonathan C. Thacher this civil action against his employer, Takeda
Pharmaceuticals ("Takeda") and several of its
Circuit Court of Virginia current and former employees. Specifically,
Plaintiff alleges defamation, breach of
08-02-2011 contract, common law conspiracy and
negligent supervision and retention of
DENNIS J. SMITH, CHIEF JUDGE employees against Takeda, and defamation,
MARCUS D. WILLIAMS tortious interference and common law
JANE MARUM ROUSH conspiracy against the current and former
LESLIE M. ALDEN employees. Four of these employees, Michael
JONATHAN C. THACHER Venanzi, Louis Savant, John Flood, and
R. TERRENCE NEY Cassandra Smith are nonresidents and
HANDY I. BELLOWS appeared specially to dismiss this action
CHARLES J. MAXFIELD against them for lack of personal jurisdiction.1
BRUCE D. WHITE The issue presented is whether this Court has
ROBERT J. SMITH the authority to exercise personal jurisdiction
DAVID S. SCHELL over these employees.
JAN L. BRODIE
LORRAINE NORDLUND BACKGROUND
BRETT A. KASSABIAN
MICHAEL F. DEVINE A motion to dismiss for failure to properly
JUDGES allege personal jurisdiction "tests the legal
sufficiency of facts alleged in the pleading, not
the strength of proof." Cabaniss v. Cabaniss,
BARNARD F. JENNINGS 46 Va. App. 595, 595-600 (2005). Therefore,
THOMAS J. MIDDLETON for the purposes of this motion, the court must
THOMAS A. FORTKORT accept all facts alleged by Plaintiff and any
RICHARD J. JAMBORSKY reasonable inferences flowing from those facts
JACK B. STEVENS as true. See id. at 600; Massey Energy Co. v.
J. HOWE BROWN UMW, 69 Va. Cir. 118, 121 (Fairfax County
F. BRUCE BACH 2005) (Bellows, J.). Accordingly, the facts
M. LANGHORNE KEITH alleged by Plaintiff in the Amended Complaint
ARTHUR B. VIEREGG are as follows.
KATHLEEN H. MACKAY
ROBERT W. WOOLDRIDGE, JR. Takeda hired Plaintiff in 2002 as a sales
MICHAEL P. MCWEENY representative. In 2004, Plaintiff was
GAYLOHD L. FINCH. JR. promoted to Specialty Sales Representative.
STANLEY P. KLEIN This position required Plaintiff to travel to
RETIRED JUDGES multiple locations in his designated sales
territory and meet with healthcare
professionals to inform them about
August 2, 2011 pharmaceutical products Takeda
-1-

manufactured. Plaintiff's entire territory was Plaintiffs performance. Savant memorialized

located in Virginia. Prior to the events alleged these false criticisms in a coaching letter
in the Amended Complaint, Plaintiff was a Savant later sent to Plaintiff. He also informed
highly successful sales representative and Plaintiff he would need recertification on both
received multiple performance awards from Uloric and Kapidex.
Takeda.
On March 9, 2009, Plaintiff met with
In 2007, Defendant Michael Fouchie Fouchie for his recertification on Uloric and
("Fouchie"), a Virginia resident, became Kapidex. Fouchie spent most of the meeting on
District Manager of Plaintiff's territory and the phone with Savant and concluded the
Plaintiffs immediate supervisor. Starting in meeting by refusing to recertify Plaintiff on
November 2008, and continuing through both drugs. Plaintiff was thereafter told he
April 2009, Plaintiff and Fouchie developed a would need to travel to Chicago the next day
strained working relationship based on a for additional training.
dispute regarding Plaintiff's habit of
periodically dropping his child off at school. On March 10, 2009, Plaintiff traveled to
Takeda's standard practice allows its sales Chicago and met with Defendant John Flood
representatives flexibility in determining their ("Flood"), a training manager and resident of
daily schedule. Fouchie, however, was Illinois. Flood had previously worked directly
adamant that Plaintiff should be "in the field" for Savant. During the recertification training,
earlier, and questioned why his wife could not Flood issued confusing and contradictory
assume responsibility for transporting the instructions and used a different certification
child. Plaintiff complained to Defendant form than had been previously used. Flood
Cassandra Smith ("Smith"), a Regional ultimately recertified Plaintiff on Uloric but
Human Resources Manager located in Illinois not Kapidex. Plaintiff claims that Savant
and a resident of that state, regarding contacted Flood and instructed him to prevent
Fouchie's harassment. Plaintiff from being recertified. Flood
produced an evaluation report from this
In February 2009, Plaintiff attended a meeting, which contained false and
national meeting where he was certified to defamatory information. This evaluation was
promote Takeda's new drugs Uloric and sent via email to Plaintiff, Savant, Fouchie, and
Kapidex. After returning from that meeting, Smith, among others.
Fouchie's immediate superior, Defendant
Louis Savant ("Savant"), the Regional Sales Following the training session in Chicago,
Manager based out of Pennsylvania and a Fouchie accompanied Plaintiff on his sales
citizen of that state, directed Fouchie to rounds. On March 19, 2009, Fouchie sent a
recertify Plaintiff on Uloric. Plaintiff passed report to Plaintiff falsely claiming Plaintiff
this recertification on February 12, 2009. acted unprofessionally towards the doctors
Savant contacted Plaintiff by telephone several and medical staff and failed to accurately
times regarding the recertification and his convey information about the drugs he was
previous complaints against Fouchie. Savant promoting. Later that day. Plaintiff received a
also informed Plaintiff that he would call from Savant, who informed him that he
personally accompany Plaintiff on a ride along must travel to New Jersey on March 23, 2009,
to observe him while making his sales rounds.2 to recertify on Uloric, and, if he failed to
successfully recertify, his employment would
On March 4, 2009, Savant accompanied be terminated. Savant also informed Plaintiff
Plaintiff for the ride along. During this time, that Fouchie would present him with a
and on a telephone conference two days later, "Warning Letter" the following day outlining
Savant made false accusations criticizing these false facts.
-2-

Following the conversation with Savant, since Plaintiff had received a warning letter
Plaintiff contacted Smith regarding Fouchie's from his managers, he was ineligible for this
report and the upcoming March 23, 2009, company benefit. Plaintiff was denied another
recertification. Smith failed to assist him and tuition reimbursement for the semester
instead repeated and supported the other ending in July 2009, resulting in another
Defendants' defamatory statements. $4,300 loss.
Given Smith would not help Plaintiff, and In June 2009, Plaintiffs attorney
after Smith failed to answer numerous calls, contacted Takeda's legal department to
Plaintiff submitted a written request by email complain about his treatment, and Plaintiff
that the recertification be conducted by a was subsequently transferred from Fouchie's
third-party who had no knowledge of the prior district to another district manager, Defendant
events. Plaintiff "CC'ed" two Takeda attorneys Michael Venanzi ("Venanzi"). Although
on this request. Smith thereafter contacted Plaintiff had previously worked directly under
Plaintiff and assured him his request would be Venanzi, and the two had a positive working
granted. She also scolded him for contacting relationship, Venanzi now continued Fouchie
the company attorneys. and Savant's campaign of harassment.
Specifically, Venanzi submitted false field
On March 23, 2009, Plaintiff traveled to reports concerning Plaintiffs knowledge of
New Jersey for recertification. Plaintiff Takeda products and a performance
contends that the events of that day are further evaluation that did not accurately reflect his
proof of a conspiracy to discredit him in his work.
profession. Although Smith had assured
Plaintiff that a third-party would be present On August 9, 2009, Plaintiff received his
and an unbiased manager would administer annual performance evaluation from Venanzi.
the test, a third-party was not present during Plaintiff received extremely low marks on this
the recertification test. Moreover, the regional evaluation despite receiving a high company
manager administering the test exited Savant's ranking in sales volume during the relevant
office just prior to conducting the test. period. The evaluation comments detailing
Nevertheless, Plaintiff passed this deficiencies in his performance were also false.
recertification. Plaintiff's current manager, Noelle Breuker
("Breuker") expressed genuine surprise at the
On March 25, 2009, Plaintiff spoke with content of the evaluation, indicating this was
Smith for approximately two hours regarding not her experience with Plaintiff, and offering
his concerns about the recertification in New to assist Plaintiff if he wished to contest the
Jersey and the recertification in Illinois contents of the evaluation.
conducted by Flood. He also detailed the
harassment by Fouchie and Savant. Plaintiff thereafter filed the instant suit
Approximately six weeks later, Smith against, among others, Savant, Smith, and
contacted Plaintiff and informed him she had Flood. Plaintiff's claims relating to these
concluded her investigation and found no particular Defendants are defamation, tortious
wrongdoing. Plaintiff alleges Smith's interference with contract and conspiracy.
investigation was an effort to cover up the Savant, Smith and Flood have now challenged
inappropriate actions of her co-conspirators. this Court's authority to exercise personal
jurisdiction over them.
In May 2009, Smith informed Plaintiff
that Takeda would not reimburse him $4,300 ANALYSIS
in tuition expenses for the semester he
completed in April 2009. Smith stated that
-3-

The question of personal jurisdiction is 2. Contracting to supply services

"one for the judge, with the burden on the or things in this Commonwealth;
plaintiff ultimately to prove the existence of a
ground for personal jurisdiction." Combs v. 3. Causing tortious mjury by an
Bakker, 886 F.2d 637, 676 (4th Cir. 1989). To act or omission in this
prevail, "a plaintiff need only make a prima Commonwealth;
facie showing of sufficient jurisdictional
basis." Rannoch, Inc. v. The Rannoch Corp., 4. Causing tortious injury in this
52 F. Supp. 2d 681, 684 (E.D. Va. 1999); see Commonwealth by an act or
Massey, 69 Va. Cir. at 121. However, there omission outside this
must be a factual basis for the showing, as Commonwealth if he regularly
"conclusory pleading does not satisfy the does or solicits business, or
requirements to exercise personal jurisdiction engages in any other persistent
under the long-arm statute." E. Direct Mktg. v. course of conduct, or derives
The Coolidge Co., 26 Va. Cir. 282, 283 substantial revenue from goods
(Arlington County 1992) (Winston, J.). used or consumed or services
rendered, in this
The determination of whether personal Commonwealth.
jurisdiction exists over a nonresident
defendant is a two-step inquiry. Bergaust v. Va. Code Ann. § 8.01-328.1(A) (2011).
Flaherty, 57 Va. App. 423, 436 (2011). First,
the court must determine whether Virginia's The Virginia Supreme Court has
long-arm statute reaches the nonresident interpreted this to be a "single act" statute
defendant. Id. Second, it must ensure that the "requiring only one transaction in Virginia to
exercise of personal jurisdiction over the confer jurisdiction on its courts." John G.
nonresident comports with the Due Process Kolbe, Inc. v. Chromodern Chair Co., 211 Va.
clause of the 14th Amendment. Id. Each of 736, 740, 180 S.E.2d 664, 667 (1971); see
these steps is separately discussed below. McGee v. International Life Insurance Co.,
355 U.S. 220 (1957) (holding that a long-arm
Virginia's Long-Arm Statute statute conferring jurisdiction over an out of
state defendant based on a single contract is
Virginia's long-arm statute provides the consistent with the Due Process clause).
bounds of this Court's jurisdiction to hear Moreover, it is firmly established that
cases involving nonresident defendants. Va. Virginia's long-arm statute asserts jurisdiction
Code Ann. § 8.01-328.1 (2011). The statute to the extent permissible under the Due
enumerates ten categories of "contacts" which Process clause. See John G. Kolbe, Inc., 211 Va.
confer jurisdiction on a nonresident. In this at 740, 180 S.E.2d at. 667; Gonzalez v. Stout,
case, Plaintiff specifically alleges jurisdiction 81 Va. Cir. 376, 378 (Fairfax County 2010)
over Savant, Smith and Flood based on (Ney, J.).
sections (A)(l)-(4), which read:
Due Process Clause
A. A court may exercise personal
jurisdiction over a person, who acts directly or The Due Process clause of the 14th
by an agent, as to a cause of action arising from Amendment limits the power of a state to
the person's: exercise personal jurisdiction over a
nonresident. Helicopteros Nacionales de
1. Transacting any business in Colombia, S. A. v. Hall, 466 US. 408, 413-14
this Commonwealth; (1984). A state may exercise personal
jurisdiction only if doing so would not offend
-4-

"traditional notions of fair play and substantial (E.D. Va. 1991) (quoting John G. Kolbe, Inc.,
justice." Int'l Shoe Co. v. Washington, 326 U.S. 211 Va. at 740, 180 S.E.2d at 667). The
310, 316 (1945) (citations omitted). The Due requirement of purposeful activity in Virginia
Process clause is not offended when a serves the purpose of ensuring that the
nonresident has certain "minimum contacts" constitutional requirements of due process are
with the forum state and the cause of action met, namely, that the defendants have certain
arises out of those contacts. Id. Unilateral minimum contacts with the forum state which
activity by a person related to the defendant is show their purposeful availment of the
not enough. Hanson v. Denckla, 357 U.S. 235, privilege of conducting activities within
253 (1958), Rather, the defendant must have Virginia.
"purposefully availed" himself of the laws of
the forum state such that he could "reasonably Furthermore, (A)(1) has been interpreted
anticipate being haled into court there." as a single act provision. See English & Smith
World-Wide Volkswagen Corp. v. Woodson, v. Metzger, 901 F.2d 36, 38 (4th Cir. 1990).
444 U.S. 286, 297 (1980). Thus, a single instance of transacting business
may be sufficient to satisfy the long-arm
Plaintiff alleges that jurisdiction is valid statute. See id.; Roanoke Cement Co., LLC v.
against Savant, Smith and Flood under Chesapeake Prods., Inc., 2:07cv97, 2007 U.S.
Virginia Long-Arm Statute sections (A)(l)-(4), Dist. LEXIS 50935, at *15 (E.D. Va. July 13,
and that due process is not offended by 2007) (finding nonresident employees of a
exercising personal jurisdiction over them. corporation were subject to personal
Because this Court must find personal jurisdiction under (A)(1) for cause of action
jurisdiction for all parties to a suit, the analysis arising out of single agreement they personally
below will apply the two-prong test towards negotiated on behalf of the corporation).
each of these Defendants.
Savant's position as Regional Sales
Defendant Savant Manager included responsibility over Fouchie,
the district manager located in Virginia, along
Plaintiff alleges personal jurisdiction with multiple sales territories in Virginia.
exists as to Savant under Code § 8.01- Savant routinely directed Fouchie, a Virginia
328.1(A)(1). Plaintiff argues that Savant's resident, through emails and phone calls with
actions as Regional Sales Manager, including regards to action taken towards Plaintiff.
sending emails, placing and receiving phone Moreover, Savant communicated directly with
calls to Plaintiff and other subordinates in at least one occasion Savant traveled to
Virginia, and visiting Virginia once to conduct Virginia to conduct a ride along with Plaintiff.
a ride along, constitutes "transacting business" The purpose of the ride along was to observe
in Virginia within the meaning of the statute. Plaintiff on-site, and during the ride along
Savant was physically present in Virginia.
While no case has specifically addressed Afterwards, Savant detailed his observations
the precise facts arising in this case, the in a report, which he sent to Plaintiff in
fundamental principles of the law are well Virginia. Savant followed this written report
settled. The Virginia Supreme Court has stated with phone calls to Plaintiff discussing the ride
that the "manifest purpose" of section (A)(1) of along. Based upon these actions, we hold that
the Virginia long-arm statute is '"to assert Savant was transacting business in Virginia
jurisdiction over non-residents who engage in within the meaning of section (A)(1).
some purposeful activity in [Virginia] to the
extent possible under the due process clause.'" As to the second prong of the analysis -
Raymond, Colesar, Glaspy & Huss, P.C. v. whether the exercise of personal jurisdiction
Allied Capital Corp., 761 F. Supp. 423, 426 over Savant comports with the Due Process
-5-

clause - because section (A)(1) has been The report was directly based on events taking
construed to extend to the limits of the Due place in Virginia and with which Savant was
Process clause, contacts sufficient under the personally involved. Savant wrote the report as
long-arm statute necessarily satisfy due Plaintiff's supervisor, and this defamatory
process as well. See Indus. Carbon v. Equity report was one instance in a series of attempts
Auto & Equip. Leasing Corp., 737 F. Supp. 925 by Savant and his co-conspirators to create a
(E.D. Va. 1990), appeal dismissed. 922 F.2d false paper trail to harm Plaintiffs business
835 (noting the real limitation on personal interests in Virginia. The Court finds that
jurisdiction under the "transacting business" Plaintiff's claim for defamation sufficiently
provision is the Due Process clause of the 14th arises from Savant's contacts with Virginia to
Amendment). Accordingly, the Court finds satisfy section (A)(1).
that exercising jurisdiction over Savant based
on the contacts listed above does not offend Savant, however, contends that all his
the Due Process clause. actions relevant to the Complaint were
performed on behalf of Takeda, in his role as
While the Court is satisfied that Savant an agent and officer of Takeda, and thus,
transacted business in Virginia sufficient to cannot be used to establish personal
confer jurisdiction, in order to comport with jurisdiction over him personally. Specifically,
section (A)(1) Plaintiff's cause of action must Savant maintains that when a nonresident
also arise from those business contacts. See officer commits a tort outside of the forum
City of Va. Beach v. Roanoke River Basin state, his contacts with the forum state
Ass'n, 776 F.2d 484, 487 (4th Cir. 1985) (the through his employer are not applicable to the
statute confers no jurisdiction for the assertion jurisdictional analysis.
of claims that do not arise from the defendant's
acts in the state). The question thus becomes Although Savant argues otherwise, it
whether Plaintiff's allegations of defamation, appears that a defendant who commits a tort
tortious interference, and conspiracy towards may not use his employer as a protective shield
Savant arise out of his business contacts with against the reach of the law. The United States
the state. Court of Appeals for the Fourth Circuit
addressed this issue in Columbia Briargate
While personal jurisdiction is limited to Co. v. First Nat'l Bank, 713 F.2d 1052 (4th Cir.
causes of action "arising from" the business 1983). In Columbia Briargate, the plaintiff
transactions in the forum state, courts have alleged that, in the course of negotiating the
broadly construed this provision to include sale of real estate, the foreign corporation's
acts related to, but not directly the cause of, the vice-president, a nonresident individual, made
alleged claims. See Production Group Int'l v. a number of false and fraudulent
Goldman, 337 F. Supp. 2d 788, 794 (E.D. Va. representations about the conditions of the
2004) (finding any contract performance property. 713 F.2d at 1054. All of the alleged
activity in the forum state relevant for personal misconduct of the defendant vice-president
jurisdiction analysis under (A)(1) even if not occurred in the forum state. Id. Despite the
directly related to the alleged breach); Ghedid defendant vice-president's assertion that he
v. Boardwalk Regency Corp., 756 F. Supp. had "acted solely in a representative capacity
941, 943 (E.D. Va. 1991) (interpreting 'arising on behalf of [the foreign corporation] in all his
from' as requiring "a causal link between the contacts with [the forum state]" and that,
acts relied on for personal jurisdiction and the under those circumstances, "the assertion of
cause of action asserted"). jurisdiction of [his] person would be contrary
to the Fourteenth Amendment," the Fourth
In the instant case, Plaintiff alleges Savant Circuit found that there was no question of the
defamed him through his ride along report. amenability of the defendant to the
-6-

jurisdiction of the forum state. Id. at 1065. The actress in California. 465 U.S. 783, 790 (1984).
Fourth Circuit held that a nonresident The defendants argued that because the article
individual who commits a tort within the was written on behalf of their employer, a
forum state is subject to suit in that state nationally circulated magazine, and because
regardless of whether he was acting in his they had no other connection with California,
"corporate or personal role." Id. (emphasis the state could not exercise personal
added); see also Korean Video Broadcasting jurisdiction over them. Id. The Court rejected
Corp. v. D&H Visual Art, No. 94-2556, 1995 this argument explaining:
U.S. App. LEXIS 25902, at *6 (4th Cir. Sept.
13, 1995) (because Virginia's long-arm statute Petitioners are correct that their
extends to the limits of due process, the acts of contacts with California are not
a corporate officer or employee taken in his to be judged according to their
corporate capacity within Virginia can form employer's activities there. On
the predicate for jurisdiction over him in his the other hand, their status as
individual capacity); Direct Connect v. Medra employees does not somehow
Systems, LLC, 80 Va. Cir. 637 (Fairfax County insulate them from jurisdiction.
2010) (Thacher, J.) (holding that an employee Each defendant's contacts with
who commits fraud while negotiating a the forum State must be
contract in Virginia on behalf of his company assessed individually.
is subject to personal jurisdiction in Virginia).
Id. (emphasis added).
This Court more recently addressed this
issue in Cordova v. Alper, 64 Va. Cir. 87 Savant further argues that any connection
(Fairfax County 2004) (Klein, J.). In Cordova, he may have had with the torts alleged by
the plaintiff sued a corporation for negligently Plaintiff occurred without Virginia, and thus
misdiagnosing pap smears and returning a under Columbia Briargate the assertion of
negative test for cervical cancer when the jurisdiction over his person is contrary to the
patient did in fact have cancer. 64 Va. Cir. at Fourteenth Amendment. This argument
89-90. The plaintiff asked this court to find specifically relies on the following language
personal jurisdiction over a nonresident contained in Columbia Briargate:
employee of the corporation solely on the basis
that the corporation was subject to jurisdiction [I]f the claim against the
in Virginia- Id. at 112-13. We rejected the idea corporate agent rests on nothing
of imputing a corporation's actions to its more than that he is an officer or
employees, affirming the distinction between a employee of the non-resident
corporation and its agents. Id at 109-14. The corporation and if any
employee's susceptibility towards personal connection he had with the
jurisdiction could only be based on his commission of the tort occurred
contacts with this state as an individual, which without the forum state, we
include those made in his capacity as an agree that, under sound due
employee. Id. process principles, the nexus
between the corporate agent and
Similarly, the United States Supreme the forum state is too tenuous to
Court has recognized that an employee's acts support jurisdiction over the
on behalf of an employer can estabhsh agent personally by reason of
personal jurisdiction over the employee. In service under the long-arm
Colder v. Jones, the Supreme Court found statute of the forum state.
jurisdiction over a Florida writer and editor
who produced an article defaming a famous
-7-

Columbia Briargate, 713 F.2d at 1064-65 sufficient facts to establish that either Flood or
(emphasis added). Smith transacted business in Virginia. Flood
sent a few emails to Fouchie, who lived in
The Court finds this argument meritless. Virginia. Smith emailed both Fouchie and
Plaintiff's assertion of jurisdiction over Savant Plaintiff, and on a number of occasions called
does not rest solely on his status as an officer Plaintiff in Virginia. However, the law is well
of Takeda. Instead, the facts indicate that settled that mere emails and telephone calls
Savant had significant contacts with Virginia directed at Virginia do not amount to
during the commission of the torts alleged. transacting business in Virginia. See, e.g.,
Savant personally visited Virginia in the course Superpose Invs., Ltd. v. Firstmiss Fertilizer,
of his business, and he committed torts related Inc., 774 F. Supp. 393, 397-98 (E.D. Va. 1991);
to his contact with Virginia which were Unidyne Corp. v. Aerolineas Argentines, 590
specifically aimed at a Virginia resident. F. Supp. 391, 396 (E.D. Va. 1984) (telephone
Accordingly, the Court is satisfied that the calls, telex messages and letters are an
nexus between Savant and the Commonwealth insufficient basis for in personam
of Virginia is sufficient to support personal jurisdiction); Williams Crane & Rigging, Inc.
jurisdiction over him. B & L Systems, Ltd., 466 F. Supp. 956, 957
(E.D. Va. 1979) (holding that a single phone
Here, Savant's connection to Virginia is call and letter to forum did not warrant
not based solely on the fact that he works for a personal jurisdiction). Additionally, Plaintiff's
corporation subject to jurisdiction in Virginia. conclusory allegation that Flood and Smith
Savant has actual contacts with Virginia. He "transacted business in Virginia" is insufficient
personally made frequent emails and to establish jurisdiction. See E. Direct, 26 Va.
telephone calls to Virginia and directed Cir. at 283 ("conclusory pleading does not
subordinates located in Virginia. He satisfy the requirements to exercise personal
personally visited Virginia in the course of his jurisdiction").
business. Moreover, he committed torts
specifically aimed at a Virginia resident that Moreover, Plaintiff failed to allege that
are related to his contact with Virginia. In Flood or Smith entered into a contract to
short, the Court finds that Savant's individual supply services or things in Virginia, as is
contacts with Virginia are sufficient to subject required under Code § 8.01-328.1(A)(2).
him to the power of this Court.3 Accordingly, there is no basis for jurisdiction
over Flood or Smith under Code § 8.01-
Defendants Flood & Smith 328.1(A)(1) or (A)(2).
Flood and Smith are both nonresidents Code § 8.01-328.1(A)(3)

who are not alleged to have been present in
Virginia at any time relevant to this suit. Plaintiff next contends that personal
Moreover, each has similar contacts with jurisdiction exists against Flood and Smith
Virginia. Therefore, the court will jointly under Code § 8.01-328,1(A)(3). In order to
discuss Flood and Smith and whether this find jurisdiction under this section, Plaintiff
Court has personal jurisdiction over either. must allege a tortious injury in Virginia and
that one essential act of the alleged tort
Code § 8.01-328.1(A)(1) and (A)(2) occurred in Virginia. See Bochan La Fontaine,
68 F. Supp. 2d 692 (E.D. Va. 1999).
Plaintiff claims that Flood and Smith are
both subject to personal jurisdiction pursuant At this stage it appears Plaintiff has
to Code § 8.01-328.1(A)(1) and (A)(2). alleged defamation4 and tortious interference5
Plaintiff, however, has failed to allege against Flood. Plaintiff claims Flood purposely
-8-

and maliciously issued him a fading score on Regelson, 38 Va. Cir. 283, 287 (1995).
the March 10, 2009, recertification test in Similarly, defamatory remarks made by a
Chicago, and that Flood knowingly wrote a nonresident over the telephone to a person
false report regarding this recertification. receiving the call in Virginia are generated
Flood then emailed this report to, among outside the forum and, thus, not an act within
others, Fouchie in Virginia.6 Moreover, Flood, the state, Bochan, 68 F. Supp. 2d at 700, n.26.
as
In St. Claire v. Righter, the United States
Manager of Specialty Sale Training, knew District Court for the Western District of
the importance of certification and was surely Virginia found that a defamatory letter sent to
aware that a failed certification would Virginia from outside the state did not
negatively impact Plaintiff's prospects at establish personal jurisdiction over the
Takeda. In fact, the March 20, 2009, warning defendant under Code § 8.01-328.1(A)(3). 250
letter given to Plaintiff precluded him from F. Supp. at 151. The court reasoned that while
receiving company benefits in the form of the tortious injury occurred in Virginia, the
tuition reimbursements, thus, clearly injuring harm was "caused by the act of writing and
Plaintiff in Virginia. The warning letter cited, mailing the letters outside of Virginia." Id. A
in part, Plaintiff's failed recertification in contrary holding, the court argued, would
Chicago as the basis for the reprimand. render Code § 8.01-328.1(A)(4) "completely
obviated, as every set of facts which give rise to
Plaintiff has also alleged a claim of tortious injury could be brought within the
defamation against Smith. Smith repeated the terms of paragraph (3)." Id,
defamatory remarks made by Flood over the
phone and through email messages to Plaintiff The notion that the "tortious act" occurs
and others. Moreover, Smith reiterated these where a defamatory message is written and
statements knowing them to be false. Finally, communicated has been reaffirmed during the
Smith failed to adequately investigate the internet age. In Bochan v. La Fontaine, the
complaint made by Plaintiff, and used her own United States District Court of the Eastern
report as a means of covering up her District of Virginia addressed the issue of
colleagues' wrongdoing. whether defamatory remarks posted on the
internet constitute a tortious act in Virginia
Since Plaintiff has alleged tortious injury under Code § 8.01-328.1(A)(3). 68 F. Supp, 2d
in Virginia, the question thus becomes at 694-703. In Bochan, Texas and New Mexico
whether a person outside of Virginia who residents separately posted defamatory
sends a defamatory email or telephone call to remarks about a Virginia resident on an
a person living in Virginia is an act "within the internet newsgroup. Id. at 695. The court held
Commonwealth" as required under Code § that Virginia's long-arm statute did not grant
8.01-328.1(A)(3). jurisdiction over the New Mexico resident
under (A)(3). Id. at 700. The court rejected
Although the Virginia Supreme Court has plaintiffs argument that the tortious act
not addressed this specific issue, courts occurred in Virginia because the defamatory
interpreting this subsection have held that remarks were published there. Id. at 700 n.26.
when a nonresident writes a defamatory letter However, the court found that the defamatory
outside the forum state and mails it into the remarks posted by the Texas resident did
forum, he does not commit a "tortious act" constitute a tortious act within Virginia under
within the forum as required. St. Claire v. (A)(3). Id. at 699. The Texas resident, Virginia
Righter, 250 F. Supp. 148, 151 (W.D. Va. 1966) and, therefore, was deemed to have sent the
disapproved on other grounds, Beaty v, M.S. communication in Virginia. Id. Thus, although
Steel Co., 401 F.2d 157 (4th Cir. 1968); Loria v. the defamation was written outside of the
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1433
state, the act of communicating it through a rendered, in the Commonwealth

server physically located in Virginia of Virginia.
constituted an act in Virginia. Id.
Roanoke Cement Co., LLC v. Chesapeake
Under this analysis, neither Flood nor Prods., Inc., 2:07cv97, 2007 U.S. Dist. LEXIS
Smith committed acts within Virginia. Both 50935, at *23-24 (E.D. Va. July 13, 2007).
wrote their defamatory emails in Illinois and
sent the emails to Virginia from Illinois. Plaintiff has clearly shown facts that
Plaintiff does not allege, nor does the record satisfy the first part of (A)(4): an act or
support, that the emails were sent through a omission outside Virginia causing tortious
service provider present in Virginia. Smith injury in this state. Plaintiff has alleged that
also made defamatory calls to Virginia, but the both Smith and Flood sent defamatory
analysis is identical to that used for written statements into Virginia. Since emailing a
communications, and it compels the same defamatory statement is an act outside the
conclusion. Moreover, neither Defendant Commonwealth when it is not communicated
completed any other acts in Virginia. Thus, the over a server located in Virginia, as is the case
Court finds that there is insufficient factual here, see First Am. First, Inc. v. Nat'l Assoc. of
basis to establish personal jurisdiction over Bank Women, 802 F.2d 1511, 1516-16 (4th Cir.
Flood or Smith pursuant to Code § 8.0T- 1986) (holding a letter written and mailed
328.1(A)(3). outside Virginia is a sufficient act outside the
Commonwealth under (A)(4)), the issue
Code § 8.01-328.1(A)(4) presented is whether Flood and Smith satisfy
the second requirement of (A)(4).
Plaintiff next contends that personal
jurisdiction is established over Flood and The second requirement of (A)(4)
Smith pursuant to Code § 8.01-328.1(A)(4). necessitates persistent contacts with the forum
The United States District Court of the Eastern state, substantial revenue from the forum
District of Virginia has found this section state, or regular business in the forum state.
requires a two-pronged analysis, explaining: See, e.g., First Am. First, Inc., 802 F.2d at
1514-16. Moreover, unlike the "transacting
First, a court must determine business" nexus required under Code § 8.01-
whether the defendant caused 328.1(A)(1), section (A)(4) does not require
tortious injury in Virginia by an the "contacts with Virginia be related to the
act or omission outside this cause of action alleged." Robinson v. Egnor,
Commonwealth, [citations 699 F. Supp. 1207, 1212 (E.D. Va. 1988). The
omitted] Second, the court must jurisdictional significance of the contacts
evaluate whether "a relationship outlined under (A)(4) is not merely the
between the defendant and the number of contacts, but the "continuing or
state which exists in any one of ongoing nature of these contacts." Id. at 1213.
the three ways specified in
subsection (4)." A court must It is clear that neither Flood nor Smith
therefore inquire into whether derived substantial revenue from goods used
the defendant (1) regularly does or consumed or services rendered in Virginia.
or solicits business, (2) engages Indeed, Plaintiff has failed to allege any facts
in any other persistent course of indicating these types of contacts. Thus, the
conduct, or (3) derives only remaining inquiry is whether Flood or
substantial revenue from goods Smith engaged in any persistent course of
used or consumed or services conduct in Virginia or regularly conducted
-10-

1434
business in Virginia to satisfy the second impossible to characterize Flood's contacts as

requirement of (A)(4). persistent, continuous or ongoing.
The case Robinson v. Egnor, is Smith's contacts necessitate the same

instructive. 699 F. Supp. 1207. In Robinson, a conclusion. Her contacts with Virginia were
Virginia resident sued a Colorado resident for also limited to the short time frame of the
defamation. 699 F. Supp. at 1210-11. The events surrounding Plaintiff's complaint.
defamatory telephone call occurred outside of While Smith made several more phone calls to
Virginia but the Plaintiff sought jurisdiction Virginia than Flood, the number does not rise
under (A)(4) because the harm had occurred to the level of persistent, continuous or
in Virginia and the defendant had contacts ongoing contact with Virginia.
with Virginia through his employment. Id. The
court found that during his nineteen-month Accordingly, the Court finds that there is
tenure in the Marshal Service, the defendant no jurisdictional basis against Smith or Flood
had twice traveled to Virginia on business, under Code § 8.01-328.1(A)(4).
contacted the Marshal Service Headquarters
in Virginia at least fifty times, sent letters and Conspiracy Theory of Jurisdiction
spoke on the phone with various divisions in
Virginia, as well as regularly worked with Although the Court has concluded that
Headquarters on various financial matters. Id. personal jurisdiction is not permitted over
The court held that these contacts represented defendants Flood and Smith based on each
a "persistent course of conduct" under (A)(4), defendant's individual contacts with the forum
reasoning that his management state, there exists another basis for
responsibilities "require[d] that he jurisdiction. Courts have recently recognized
communicate with Headquarters [in Virginia] that personal jurisdiction may, in some
on a regular basis." Id. at 1212. circumstances, be based upon the acts or
contacts of a co-conspirator. See Verizon
On the other end of the spectrum, the Online Servs., Inc. v. Ralsky, 203 F. Supp. 2d
court in Micropicture Int'l, Inc. v. Kickartz, 601 (E.D. Va. 2002). Although the Virginia
found a persistent course of conduct lacking Supreme Court has not addressed this specific
based on seven emails and one letter sent to issue, several other courts interpreting
Virginia. 3:05-CV-00034, 2006 U.S. Dist. Virginia law have recognized the validity of
LEXIS 3714, at *8-10 (W.D. Va. Jan. 17, 2006). this basis for jurisdiction. See, e.g., Noble Sec.,
Specifically, the court noted that five emails Inc. v. MIZ Eng'g, Ltd., 611 F. Supp. 2d 513,
sent in July of 2007 and two in December of 538-40 (E.D. Va. 2009); Massey, 69 Va. Cir. at
2007 was "a frequency more sporadic than 124.
persistent or ongoing." Id.
Courts acknowledging the conspiracy
From these cases, it is clear that Flood's theory of jurisdiction seem to recognize that a
contacts do not constitute "doing business" or defendant who joins a conspiracy knowing
a "persistent course of conduct" under (A)(4). that acts in furtherance of the conspiracy have
Unlike the defendant in Robinson, there is no taken or will take place in the forum state is
allegation that Flood traveled to Virginia or subject to personal jurisdiction in that forum
contacted Virginia regularly in the course of because the defendant has purposefully
his employment. Flood's contacts with availed himself of the privileges of that state
Virginia stem solely from the recertification and should reasonably expect to be haled into
episode in Chicago and amount, at most, to a court there. Nobel Sec., Inc., 611 F. Supp. 2d at
few emails sent to Fouchie in Virginia around 539. A co-conspirator is subject to personal
the time of the recertification. Thus, we find it jurisdiction in a forum where "co-conspirators
-11-

1435
have sufficient contacts with the forum, so that known that these acts would be committed in
due process would not be violated." Verizon, Virginia. Moreover, the record is clear that the
203 F. Supp. 2d at 622; see also, Massey, 69 remaining co-conspirators also committed
Va. Cir. at 124. Due process is not offended so acts in Virginia in furtherance of the
long as the co-conspirator knew, or should conspiracy that Smith and Flood knew or
have known, that acts in furtherance of the should have known about. Thus, the Court is
conspiracy would be committed in the forum. satisfied that alleged conduct by the co-
Nobel Sec, Inc., 611 F. Supp. 2d at 539. A co- conspirators in Virginia is sufficient to
conspirator could "reasonably expec[t] to be establish personal jurisdiction over Flood and
haled into court where their [conspiratorial Smith.
acts] inflicted the greatest harm." Verizon, 203
F. Supp. 2d at 622. Moreover, a state Furthermore, the Court finds it does not
maintains a "'manifest interest' in providing its offend due process to impute these acts to
residents with a convenient forum for Flood and Smith. Fouchie and the other co-
redressing injuries inflicted by out-of-state conspirators had significant contacts with
actors." Id. at 617 (citing Burger King Corp. v. Virginia and the alleged conspiracy was aimed
Rudzewicz, 471 U.S. 462, 473 (1985)). at a Virginia resident. A co-conspirator could
"reasonably expec[t] to be haled into court
In the instant case, Plaintiff has alleged a where their [conspiratorial acts] inflicted the
conspiracy between Flood, Smith, Venanzi, greatest harm." Verizon, 203 F. Supp. 2d at
Savant, and Fouchie. Accordingly, under the 622.
conspiracy theory of jurisdiction, Flood and
Smith could be subject to jurisdiction based on Smith and Flood, however, contend that
the acts of Venanzi, Savant or Fouchie that Plaintiff has not alleged sufficient facts to
occurred in Virginia in furtherance of the estabhsh a conspiracy, and thus jurisdiction
conspiracy. The underlying torts of Plaintiffs should not be asserted on this theory. Smith
conspiracy claim are defamation and tortious and Flood are incorrect. To properly assert a
interference. Thus, if Savant, Venanzi, or conspiracy claim, the plaintiff must "make a
Fouchie committed acts in furtherance of threshold showing... that a conspiracy existed
these torts in Virginia, jurisdiction could lie and that the defendants participated therein."
against Flood or Smith as co-conspirators. St. Paul Fire & Marine Ins. Co. v. Hoskins,
5:10cv00087, 2011 U.S. Dist. LEXIS 53321, at
Plaintiff has sufficiently alleged that acts *9 (W.D. Va. May 18, 2011) (quoting
in furtherance of both torts occurred in McLaugnlin v. McPhail, 707 F.2d 800, 807
Virginia. Fouchie's March 19, 2009, report (4th Cir. 1983)). Plaintiff has produced facts to
detailing Plaintiff's performance contained support his assertion of a conspiracy that, at
false and defamatory statements. Fouchie this stage of the proceedings, must be taken as
composed these reports in Virginia and true. Cabaniss, 46 Va. App. at 600. For
published them to other members of the example, prior to the recertification test in
conspiracy as well as other employees outside Chicago, Flood worked directly for Savant, a
of Virginia. This Court has already determined key player, in the conspiracy. Flood was in
that under Virginia law the act of defamation contact with Savant just prior to administering
occurs where the statement was written and the recertification test, which Plaintiff
communicated. Plaintiff also alleges these subsequently failed. Smith, on the other hand,
reports were made in furtherance of a received Plaintiffs complaints and was privy to
conspiracy to create a documented history of his belief that Fouchie, Savant, and others
false underperformance in order to harm were conspiring against him. Smith's
Plaintiff's reputation and career prospects at responsibilities included investigating the
Takeda. Smith and Flood knew or should have allegation. Instead, she ignored Plaintiff's
-12-

1436
claims and failed to investigate the allegation and Smith. Accordingly, Defendants' motion is
beyond contacting other members of the overruled. An order is enclosed.
conspiracy. These facts, when taken with the
other allegations, convince this Court that Sincerely,
Plaintiff has met his preliminary burden.
Moreover, Judge Kassabian recently decided CONCLUSION
at the May 6, 2011, hearing that Plaintiff has
asserted sufficient facts to allege a conspiracy. Circuit Court Judge, Fairfax County
The Court agrees with Judge Kassabian's
decision and analysis.
Enclosure
Finally, Smith and Flood maintain that
Plaintiff has failed to allege a conspiracy due to ORDER
the intra-corporate immunity doctrine. The
intra-corporate immunity doctrine holds that THIS MATTER came to be heard on
employees of a corporation cannot be found to Defendants Michael Venanzi, Luois Savant,
conspire with one another when they are John Flood, and Cassandra Smith's Motion to
acting within the scope of their employment Dismiss for Lack of Personal Jurisdiction; and
because they are considered one entity, the
corporation. E.g., Fox v. Deese, 234 Va. 412, IT APPEARING to the Court for the
428, 362 S.E.2d 699, 708 (1987). Employees reasons stated in the Court's Letter Opinion of
acting outside the scope of their employment, August 2, 2011, that the Motion should be
however, can be liable for a civil conspiracy overruled; it is therefore
claim. E.g., Meeko Corp. v. Chesterfield
ORDERED that the Court's Letter
Commerce Ctr., 14 Va. Cir. 149, 152-53
Opinion of August 2, 2011, is incorporated into
(Chesterfield County 1988) (Gill, J.).
this Order; it is further
According to Smith and Flood, Plaintiff has
failed to assert any facts to support his
ORDERED that Defendants' Motion is
allegation that the individual Defendants
overruled.
acted outside the scope of their employment.
ENTERED this 2 day of August, 2011.
Smith and Flood are incorrect that
Plaintiff has not alleged facts to support the _____________________
contention that Defendants acted outside the Judge Jonathan C. Thacher
scope of their employment. Plaintiff alleges
Defendants acted maliciously in an attempt to
harm him and remove him from Takeda. In
In order to expedite the disposition of this
furtherance of this objective, Defendants
matter, endorsement of this Order by counsel
created false reports and performance reviews
of record for the parties is waived in the
regarding Plaintiff, refusing to recertify him on
discretion of the Court pursuant to Rule 1; 13
drugs he had previously been certified, and
of the Rules of the Supreme Court of Virgina.
failed to investigate substantial grievances.
Plaintiff has made an adequate showing that
_______________________________
Defendants acted outside the scope of their
________________
employment.7
1Subsequent to this motion being filed, Mr.
For the reasons set forth above, the Court Venanzi was personally served in the
finds that it has authority to exercise personal
Commonwealth. Mr. Venanzi thereafter
jurisdiction over Defendants Savant, Flood,
-13-

1437
withdrew his petition for lack of jurisdiction the breach or termination of the relationship
and entered a general appearance. Thus, the or expectancy; and (4) resultant damage to the
remainder of this opinion will not address Mr, party whose relationship or expectancy has
Venanzi because he has submitted to the been disrupted. Century-21 v. Elder, 239 Va.
jurisdiction of this Court 192 Va. 47, 50, 63 637, 641, 391 S.E.2d 296, 298 (1990).
S.E,2d 757, 759 (1951) (a general appearance
in a case confers jurisdiction of the person on 6 Under Virginia law. publication occurs
the court). where the email is read. See Bochan, 68 F.
Supp. 2d at 69899.
2 Plaintiff's job entailed visiting hospitals and
physicians' offices throughout his territory to 7 At this stage of the trial the Court is not
promote drugs that Takeda manufactured. A required, nor allowed, to test the sufficiency of
ride along is an administrative practice where proof concerning scope, which can only be
a manager accompanies a subordinate during determined after an evidentiary hearing. 234
his scheduled visits to observe and evaluate his Va. at 428, 362 S.E.2d at 708.
performance.
3 Although the Court has found jurisdiction

under Code § 8.01-1 328.1(A)(1), the Court is
also satisfied that Savant is subject to personal
juris diction pursuant to Code § 8.01-1 328.1
(A)(3) and (A)(4). Under the conspiracy theory
of personal jurisdiction, discussed supra,
Savant has committed a tort in Virginia which
allows jurisdiction under (A)(3). Moreover,
Savant's additional contacts with Virginia
amount to regularly doing business in
Virginia, subjecting him to personal
jurisdiction in the Commonwealth pursuant to
(A)(4). See Robinson v. Egnor, 699 F. Supp.
1207, 1212 (E.D. Va. 1988)(holding it is
"unmistakably clear" that a manager whose
work required travel to Virginia on two
occasions and regular contact with
subordinates in Virginia is subject to personal
jurisdiction under (A)(4)).
4 In Virginia, defamation consists of the

following elements: (1) a publication; (2) of
defamatory statements; (3) with the requisite
intent. Chapin v. Greve, 787 F. Supp. 557, 561-
62 (E.D. Va. 1992).
5In Virginia, tortious interference consists of

the following elements: (1) the existence of a
valid contractual relationship or business
expectancy; (2) knowledge of the relationship
or expectancy on the part of the interferor; (3)
intentional interference inducing or causing
-14-

1438
EXHIBIT C

John A. Bonello, Esq. DAVID, BRODY & DONDERSHINE, LLP David Barmak, Esq. MIENTZ, LEVIN, COHN,
FERRIS, GLOVSKY AND POPEO, P.C. Idexcel, Inc., and ITech Consulting Group, Inc. v. Todd K. Lieto, et al. (Va.
Cir., 2012)
John A. Bonello, Esq. DAVID, BRODY GAYLORD L. FINCH, JR.

& DONDERSHINE, LLP David Barmak, STANLEY P. KLEIN
Esq. MIENTZ, LEVIN, COHN, FERRIS,
GLOVSKY AND POPEO, P.C. Idexcel,
Inc., and ITech Consulting Group, Inc. RETIRED JUDGES
v.
Todd K. Lieto, et al. January 24, 2012
Case No. CL-2011-10159
Circuit Court of Virginia Dear Counsel:
01-24-2012 This matter came before the Court on

December 12, 2011, upon Defendants' Project
DENNIS J. SMITH, CHIEF JUDGE Resource Consulting, LLC ("PRC") and Agility
MARCUS D. WILLIAMS Solutions, Inc.'s ("Agility") Motion to Dismiss
JANE MARUM ROUSH Complaint for Lack of Personal Jurisdiction1.
LESLIE M. ALDEN Following the hearing, the Court took the
JONATHAN C. THACHER matter under advisement. After reviewing the
R. TERRENCE NEY evidence and credibility of the witnesses and
HANDY I, BELLOWS considering the arguments and cases cited by
CHARLES J. MAXFIELD counsel, the Court reaches the following
BRUCE WHITE findings and conclusion.
ROBERT J. SMITH
DAVID S. SCHELL Background
JAN L BRODIE
LORRAINE NORDLUND Idexcel, Inc. ("Idexcel"), formerly known
BRETT A. KABSABIAN as Everest Business Solutions, Inc. ("Everest"),
MICHAEL F. DEVINE is a Virginia corporation with its principle
place of business in Fairfax County, Virginia. It
provides information technology and related
JUDGES services to its clients. In 2009, Everest
purchased ITech Consulting Group, Inc., a
COUNTY OF FAIRFAX Texas corporation that "[locates] technical
services personnel for various clients to
CITY OF FAIRFAX provide technical services to clients according
to the client's specifications." Sales Teaming
BARNARD F. JENNINGS Agreement, p. 1. Everest purchased all of
THOMAS J. MIDDLETON Itech's common stock pursuant to a purchase
THOMAS A. FORTKORT agreement dated July 22, 2009. Certain
RICHARD J. JAMBORSKY shareholders, namely Defendants Todd K.
JACK B. STEVENS Lieto and William P. Kardias, sold their stock
J. HOWE BROWN in ITech to Idexcel as part of the ITech
F. BRUCE BACH purchase. Lieto is currently the President and
M. LANGHORNE KEITH a shareholder of Agility and is also the General
ARTHURS. VIEREGG Manager of PRC, a New York limited liability
KATHLEEN H. MACKAY company.
ROBERT W. WOOLDRIDGE. JR.
MICHAEL P. McWEENY
-1-

Cir., 2012)
On or about July 27, 2009, PRC entered In the past, forum selection clauses in
into a Sales Teaming Agreement ("the contracts were disfavored in most courts.
Agreement") with ITech to provide certain However, the Supreme Court of Virginia in its
information technology staffing services to decision in Paul Business Systems, Inc. v.
ITech. Lieto signed the Agreement as General Canon USA, 240 Va. 337, 342, 397 S.E.2d 804,
Manager of PRC. Defendants Tiffanie L. 807 (1990) held that "contractual provisions
Benson and Vincent Russo were former sales limiting the place or court where potential
managers of ITech and are now Managing actions between the parties may be brought
Partners of Agility, a Florida corporation. In are prima facie valid and should be enforced,
paragraph 1 of their Complaint, the Plaintiffs unless the party challenging enforcement
allege "a conspiracy to use the establishes that such provisions are unfair or
misappropriated customers, prospective unreasonable, or are affected by fraud or
customers, confidential information, and unequal bargaining power.1' The Court
other valuable assets of a company being sold, acknowledged that this position comported
ITech, to secredy develop a new company, with its decisions enforcing choice of law
Agility, which Defendants are operating in provisions in contracts. Id. (citing Union
direct competition with ITech and the Central Life Ins. Co. v. Pollard,94 Va. 146, 151-
company that purchased ITech, Idexcel, in 52, 26 S.E. 421,422).
violation of their restrictive covenants." Both
Defendants PRC and Agility have challenged The Plaintiffs do not allege that the forum
this Court's exercise of personal jurisdiction selection provisions in the Agreement were
over them under Virginia's Long Arm Statute procured by fraud or overreaching. In fact, the
and PRC claims that any disputes between Agreement was drafted by ITech. The
PRC and the ITech must be litigated in Texas Plaintiffs do not argue that the provisions are
under the terms of the Agreement. unfair or unreasonable. Instead, they allege
that the venue provision does not mandate
Analysis that ITech pursue its claims in Texas courts
but "merely mandates that any enumerated
I. Whether any claims by ITech courts have jurisdiction, not that they have
against PRC must be litigated in Texas exclusive jurisdiction or venue." Plaintiffs'
and not in Virginia. Memorandum at 5.
Paragraph 9 of the Agreement between In determining whether a forum selection

ITech and PRC entitled "Law" provides that clause is mandatory, the Court must look to
the language of the provision by giving the
[t]he internal laws of the state of words used their common or normal meaning
Texas shall govern this absent circumstances that would give those
Agreement without regard to its words a special meaning. Hunt Wesson Foods,
conflict of law rules, and any Inc. v. Supreme Oil Company, 817 F.2d 75, 77
lawsuits pertaining to this (9th Cir. 1987). The use of "shall" by itself is
Agreement or the services not determinative. Id. In Hunt, the Court
provided shall be decided in the found that the language used mandated
federal or state courts in the "nothing more than that the Orange County
state of Texas. Contractor hereby courts have jurisdiction."2 Generally, when
consents to the exercise of only jurisdiction is specified, the courts will
jurisdiction over it by such not find that the forum selection clause is
courts. mandatory; however, when venue is specified,
that clause will be enforced as a mandatory
selection clause. Docksider Ltd. v. Sea
-2-

Cir., 2012)
Technology, Ltd., 875 F.2d 762, 764 (9th Cir. fair play and substantial justice."' Peninsula
1989). In Docksider, the court noted that Cruise Inc.v. New River Yacht Sales, Inc., 257
"[t]his mandatory language makes clear that Va. 315, 319, 512 S.E.2d 560, 562 (1999) (citing
venue, the place of the suit, lies exclusively in International Shoe Co. v. Washington, 326
the designated county. Thus, whether or not U.S. 310, 316 (1945)). The person must have
several states might otherwise have "purposely availed himself of the laws of the
jurisdiction over actions stemming from the forum state such that he could reasonably
agreement, all actions must be filed and anticipate being haled into court there."
prosecuted in Virginia," Id. World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286, 297 (1980). The court must
The provision at issue in this case provides examine the circumstances of each case to
that any lawsuits under the Agreement "must determine whether the minimum contact
be decided " in the federal and state courts in threshold has been met. Id.
Texas. Agreement at 3. The language of the
provision makes it clear that venue, the filing, The Plaintiffs allege that this Court has
prosecution, and final decision in any lawsuit personal jurisdiction over PRC and Agility
pertaining to the Agreement, lies exclusively in under Va. Code Ann. § 8.01-328.1(A)(1), which
the federal or state courts of Texas. vests "personal jurisdiction over a person3,
Accordingly, the forum selection clause in the who acts directly or by an agent, as to a cause
Agreement is mandatory and the dispute of action arising from the person's . . .
between ITech and PRC must be litigated in transacting any business in this
Texas. Commonwealth." By stipulating "any business
in this Commonwealth," this section is a single
II. Whether the Court has act statute that requires only one transaction
jurisdiction over Agility and PRC under to satisfy this requirement, provided that the
Virginia's long arm statute. action arose from that one transaction.
Peninsula Cruise, 257 Va. at 319, 512 S.E.2d at
"[T]he purpose of Virginia's long arm 562; Kolbe, 211 Va. at 740, 180 S.E.2d at 667.
statute is to assert jurisdiction over However, "it is the nature and quality of acts
nonresidents who engage in some purposeful and not their number that determines whether
activity in this State to the extent permissible transaction of business has occurred. It does
under the due process clause." Kolbe v. not mean that any single act suffices."
Chromodern Chair Co., Inc., 211 Va. 736,740, Processing Research, Inc., 686 F. Supp. at 121,
180 S.E.2d 664, 667 (1971) (emphasis added); "Mere telephone conversations, telexes and
see also Bergaust v. Flaherty, 57 Va. App. 423, letters negotiating a transaction do not
429, 703 S.E. 2d (2011). Any analysis of suffice." Id. at 122.
personal jurisdiction is a two-step process.
First, each cause of action must be examined A review of the interrogatory answers
for a fit against each part of the Long Arm highlighted by the Plaintiffs in their closing
Statute, Va. Code Ann. 8.01-328.1 (Supp. argument revealed several phone
2011). If there is a fit, the Court must then conversations and emails with Plaintiffs'
determine "whether the Long Arm's reach in employees in Virginia while Defendants were
that particular instance exceeds its in New York and Florida. The Court finds that
constitutional grasp." Processing Research, these contacts do not rise to the level of
Inc. v. Larson, 686 F. Supp. 119, 121 (1988). transacting business by PRC or Agility;
Under each section the person must have however, even if the Court were to find that
certain minimum contacts within the state "so these communications amounted to
that maintenance of an action against that transacting business, these actions are beyond
person does not offend 'traditional notions of the constitutional grasp of the statute.
-3-

Cir., 2012)
Applying the "minimal contact" tests, this _____________

Court finds, based on the facts presented and Jan L. Brodie
the analysis required, an absence of the
minimal contacts required for personal
jurisdiction in this Court. _______________________________
________________
The Plaintiffs also claim that this Court
has jurisdiction over Agility under Va. Code 1 Although the motion was titled as
Ann. § 8.01-328.1(A)(3) and (4). Va. Code "Defendants Project Resource Consulting, LLC
Ann. § 8.01-328.1(A)(3) vests personal and Agility Solutions, Inc.'s Demurrer and
jurisdiction over a person "[c]ausing tortious Motion to Dismiss the Complaint for Lack of
injury by an act or omission in this Personal Jurisdiction, or in the Alternative, for
Commonwealth." Va. Code Ann. § 8.01- Failure to State a Claim," the motion is clearly
328.1(A)(4) confers personal jurisdiction over a motion to challenge personal jurisdiction
a person "[c]ausing tortious injury in this and not a demurrer. The Court is not bound by
Commonwealth by an act or omission outside the title of the motion. Based on the review of
this Commonwealth if he regularly does or the motion, the Defendants have not engaged
solicits business, or engages in any other in any conduct related to adjudicating the
persistent course of conduct, or derives merits of the case; and therefore, they have not
substantial revenue from goods used or waived personal jurisdiction under Va. Code
consumed or services rendered, in this Ann. § 8.01-277.1 (Supp. 2011).
Commonwealth." Any acts or omissions by
PRC or Agility through their officers as alleged 2 The forum selection clause considered by the
were committed outside of Virginia; and Court in Hunt provided as follows:
accordingly, there is no fit with Va. Code Ann.
§ 8.01-328.1 (A)(3). There have been The Buyer and Seller expressly
allegations of actions outside of the agree that the laws of the State of
Commonwealth amounting to tortious California shall govern the
interference under Va. Code Ann. § 8.01- validity, construction,
328.1(A)(4). However, none of these actions by interpretation and effect of this
Benson, Russo, and Lieto or the contract. The courts of
communications by them satisfies the minimal California, County of Orange,
contacts necessary to sustain personal shall have jurisdiction over the
jurisdiction. None of the actions took place in parties in any action at law
Virginia and nothing the defendants did in relating to the subject matter or
connection with these allegations put them on the interpretation of this
notice that they might be haled into Court in contract." Hunt, 817 F.2d at 76.
Virginia.
3"Person" includes corporations. Va. Code
Conclusion Ann.§ 8.01-328 (2007).
For the foregoing reasons, the Court finds

that this Court does not have personal
jurisdiction over Defendants PRC and Agility.
Accordingly, PRC and Agility's Motion to
Dismiss Complaint for Lack of Personal
Jurisdiction is granted.
Sincerely,
-4-

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

BRENNAN M. GILMORE, CASE NO.: 3:18-cv-00017-NCM-JCH

ALEXANDER JONES, et al., BRIEF IN REPLY IN OPPOSITION

Case 3:18-cv-00017-NKM-JCH Document 86 Filed 06/26/18 Page 1 of 16 Pageid#: 1405

Table of Authorities iii

Introduction and Summary of Argument 1

Case 3:18-cv-00017-NKM-JCH Document 86 Filed 06/26/18 Page 2 of 16 Pageid#: 1406

Bennett v. OmniSOURCE Corp., No. 7:14CV00309 (W.D. Va. Nov. 4, 2015) 2

Bergaust v. Flaherty, 57 Va. App. 423 (2011) 5

Burger King Corporation v. Rudzewicz, 471 U.S. 462 (1985) 8

Calder v. Jones, 465 U.S. 783 (1984) 7

Hanson v. Denckla, 357 U.S. 235 (1958) 7

Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984) 7

Washington v. Lucas, No. 1221-14-3 (Va. App. Dec. 30, 2014) 5

Case 3:18-cv-00017-NKM-JCH Document 86 Filed 06/26/18 Page 3 of 16 Pageid#: 1407

VA. CODE § 8.01-328.1 passim

Fed. R. Civ. P. 12 passim

Case 3:18-cv-00017-NKM-JCH Document 86 Filed 06/26/18 Page 4 of 16 Pageid#: 1408

personal jurisdiction over these Defendants.

Case 3:18-cv-00017-NKM-JCH Document 86 Filed 06/26/18 Page 5 of 16 Pageid#: 1409

presented no evidence to rebut these Defendants’ evidence.

Case 3:18-cv-00017-NKM-JCH Document 86 Filed 06/26/18 Page 6 of 16 Pageid#: 1410

should dismiss these Defendants for lack of personal jurisdiction.

Case 3:18-cv-00017-NKM-JCH Document 86 Filed 06/26/18 Page 7 of 16 Pageid#: 1411

and, therefore, state law controls on personal jurisdiction.

analysis that the Amicus Scholars urge this Court to skip.

Case 3:18-cv-00017-NKM-JCH Document 86 Filed 06/26/18 Page 8 of 16 Pageid#: 1412

based on Virginia’s long-arm statute as follows:

this Court should not skip the statute, either.

Case 3:18-cv-00017-NKM-JCH Document 86 Filed 06/26/18 Page 9 of 16 Pageid#: 1413

jurisdiction with respect to due process:

Case 3:18-cv-00017-NKM-JCH Document 86 Filed 06/26/18 Page 10 of 16 Pageid#: 1414

any electronic activity into the state.

By sending physical copies of their periodicals, the defendants in Calder or Keeton

Case 3:18-cv-00017-NKM-JCH Document 86 Filed 06/26/18 Page 11 of 16 Pageid#: 1415

Case 3:18-cv-00017-NKM-JCH Document 86 Filed 06/26/18 Page 12 of 16 Pageid#: 1416

under Fed. R. Civ. P. 12(b)(2).

Case 3:18-cv-00017-NKM-JCH Document 86 Filed 06/26/18 Page 13 of 16 Pageid#: 1417

themselves of the privilege of conducting activities within the forum state.

afraid of the costs of defending suit, including travel.

Case 3:18-cv-00017-NKM-JCH Document 86 Filed 06/26/18 Page 14 of 16 Pageid#: 1418

Tuesday, June 26, 2018 Respectfully submitted,

Case 3:18-cv-00017-NKM-JCH Document 86 Filed 06/26/18 Page 15 of 16 Pageid#: 1419

Exhibit B: Nathan v. Takeda Pharm. Am. Inc., et al.

Exhibit C: Bonello, et al. v. Lieto, et al.

Case 3:18-cv-00017-NKM-JCH Document 86 Filed 06/26/18 Page 16 of 16 Pageid#: 1420

Case 3:18-cv-00017-NKM-JCH Document 86-1 Filed 06/26/18 Page 1 of 3 Pageid#: 1421

DECLARATION OF WILLIAM JOHN JOSEPH HOGE

1. My name is William John Joseph Hoge. I am over eighteen (18) years

the facts contained herein, and am competent to be a witness.

2. I am the operator of multiple websites on the Internet, including a

have a Bachelor of Engineering degree in Electrical Engineering (Vanderbilt

University, May, 1970) and am presently employed as an engineering contractor at

NASA’s Goddard Space Flight Center.

3. When a file such as a blog article or YouTube video is posted to the

Internet, it is not normally broadcast to the Internet at large. Rather, it is stored at

Case 3:18-cv-00017-NKM-JCH Document 86-1 Filed 06/26/18 Page 2 of 3 Pageid#: 1422

Specific, intentional action by the person seeking the file is required.

Case 3:18-cv-00017-NKM-JCH Document 86-1 Filed 06/26/18 Page 3 of 3 Pageid#: 1423

Case 3:18-cv-00017-NKM-JCH Document 86-2 Filed 06/26/18 Page 1 of 15 Pageid#: 1424

Case 3:18-cv-00017-NKM-JCH Document 86-2 Filed 06/26/18 Page 2 of 15 Pageid#: 1425

manufactured. Plaintiff's entire territory was Plaintiffs performance. Savant memorialized