Viko v. World Vision, Inc.

Filing 29

REPORT AND RECOMMENDATION recommending that 5 MOTION to Dismiss be denied and 26 MOTION to Transfer be granted and that this matter be transferred to the Central District of California pursuant to 28 U.S.C. § 1406(a). Objections to R&R due by 5/15/2009. Signed by Judge John M. Conroy on 4/27/09. (hbc)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT Paul Viko, Plaintiff, : : : v. : : World Vision, Inc. and : World Vision International, : Defendants. :

No. 2:08-cv-221

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION (Docs. 5 & 26) Presently before the Court is Defendants' joint motion to dismiss. The Defendants move to dismiss

under Rule 12(b)(2) for lack of personal jurisdiction, under 12(b)(3) for improper venue, and under the common law doctrine of forum non conveniens. 12(b)(2); 12(b)(3). (Doc. 5). Fed. R. Civ. P.

In the alternative,

both Defendants move to transfer this matter pursuant to 28 U.S.C. § 1404(a) or § 1406(a). (Doc. 26).1 For

the reasons stated below, I recommend that the Defendants' motion to dismiss be DENIED, but that their motion to transfer this matter to the Central District
Initially, the Defendants also moved to dismiss under Rules 12(b)(4) and 12(b)(5) for insufficient process and insufficient service of process respectively. (Doc. 5 at 1). In response, Plaintiff Viko cross-moved to correct service. (Doc. 10). In a separate Order, the Court denied Viko's motion as moot (Doc. 21), and now recommends that Defendants' 12(b)(4) and 12(b)(5) motions be denied as moot as well.
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of California be GRANTED. Background For purposes of the motion to dismiss, all facts taken from Viko's pleadings are assumed to be true and all inferences are drawn in Viko's favor. Plaintiff

Paul Viko is a retired Vermont resident who conducts international development work abroad. (Doc. 9 at 1). Defendants World Vision, Inc. and World Vision International are two elements of the "World Vision Partnership," a non-profit humanitarian organization that provides relief and development assistance in approximately 90 countries.2 (Doc. 9 at 2; Doc. 5 at 1). World Vision, Inc. (WV, Inc.) is a California corporation with its principal place of business in Federal Way, Washington, and World Vision International (WV Int'l) is incorporated in California with its principal place of business in Monrovia, California. (Doc. 5 at 1). In March 2006 Viko traveled to the African nation of Mozambique where he had been hired by International Executive Service Corps ("IESC") to give seminars on

2 Hereinafter, this opinion shall refer to WV, Inc. and WV Int'l collectively as "World Vision."

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business planning.

IESC arranged for World Vision to

host his seminars and to manage the logistics of his assignment, including transportation. (Doc. 9-2 at 1).

On March 25, 2006 Viko was a passenger in a motor vehicle operated by WV Int'l employee Carlitos Impada when Impada lost control of the vehicle and an accident occurred. locations. The accident fractured Viko's spine in two Viko was initially transported from

Mozambique to Johannesburg, South Africa for medical care, and later received further treatment in Richmond, Virginia before being able to return to Vermont approximately five months after the accident. (Doc. 9 at 1-2). On October 16, 2008 Viko filed the instant action, alleging that both WV, Inc. and WV Int'l are liable on the basis of respondeat superior as well directly liable for the negligent hiring and training of Mr. Impada. Discussion I. Personal Jurisdiction A. Legal Standard

On a 12(b)(2) motion to dismiss the plaintiff
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bears the burden of demonstrating contacts with the forum state that are sufficient to give the court jurisdiction over the person of the defendant. Country

Home Products, Inc. v. Schiller-Pfeiffer, Inc., 350 F. Supp. 2d 561, 566-67 (D. Vt. 2004). However, prior to

discovery or an evidentiary hearing on the issue, the plaintiff need only make a prima facie showing that jurisdiction exists, and this "remains true notwithstanding a controverting presentation by the moving party." Hoffritz for Cutlery, Inc. v. Amajac,

Ltd., 763 F.2d 55, 57 (2d Cir. 1985); see also Real Good Toys, Inc. v. XL Machine Ltd., 163 F. Supp. 2d 421, 423 (D. Vt. 2001). Finally, "in the absence of an

evidentiary hearing on the jurisdictional allegations, or a trial on the merits, all pleadings and affidavits are construed in the light most favorable to the plaintiff," and all inferences are drawn in the plaintiff's favor. Hoffritz, 763 F.2d at 57.

Personal jurisdiction analysis consists of a twopart inquiry. First, the district court must determine

whether the law of the state in which it sits would permit personal jurisdiction over the defendant.

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Bensusan Rest. Corp. v. King, 126 F. 3d 25, 27 (2d Cir. 1997); Country Home Products, 350 F. Supp. 2d at 567. Second, the court must determine whether the due process requirements of the Fourteenth Amendment preclude the exercise of personal jurisdiction over the defendant. Country Home Products, 350 F. Supp. 2d at

567; see also International Shoe Co. v. State of Washington, 326 U.S. 310, 316 (1945). In Vermont,

however, courts have interpreted the relevant statute, 12 V.S.A. § 913(b), to permit personal jurisdiction over a defendant to the "outer limits of the due process clause." Sollinger v. Nasco Int'l, Inc., 655

F. Supp. 1385, 1387 (D. Vt. 1987) (citations omitted).3 Thus the two inquiries merge, and the only question to be asked here is whether the exercise of personal jurisdiction over the defendant comports with the requisites of due process. In order for a court's assertion of personal jurisdiction to comply with due process it must conduct
3

Vt. Stat. Ann. tit. 12 § 913(b) states that: "Upon the service, and if it appears that the contact with the state by the party or the activity in the state by the party or the contact or activity imputable to him is sufficient to support a personal judgment against him, the same proceedings may be had for a personal judgment against him as if the process or pleading had been served on him in the state." (Emphasis added).

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both a "minimum contacts" inquiry and a "reasonableness" inquiry. Metropolitan Life Ins. Co.

v. Robertson-Ceco Corp., 84 F.3d 560, 567 (2d Cir. 1996). To determine whether a defendant has made the

"minimum contacts" with the forum state necessary for personal jurisdiction to attach, courts must first distinguish between "specific" and "general" jurisdiction. Id. at 567. "Specific jurisdiction

exists when `a state exercises personal jurisdiction over a defendant in a suit arising out of or relating to the defendant's contacts with the forum,'" while general jurisdiction "is based on the defendant's general business contacts and permits a court to exercise its power in a case where the subject matter of the suit is unrelated to those contacts." Id. at

567-68 (quoting Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414-416, nn.8-9 (1984)). Courts impose a "more stringent" minimum contacts test for general jurisdiction, requiring the plaintiff to show that the "defendants' general business contacts with Vermont were continuous, systematic and of a sufficiently substantial nature as to permit a Vermont

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court to entertain a cause of action."

Bechard v.

Constanzo, 810 F. Supp. 579, 583 (D. Vt. 1992); see also Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 446 (1952) (explaining that a court may assert general jurisdiction over a foreign defendant only when the "continuous corporate operations within a state [are] thought so substantial and of such nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities."). To be sufficient, these contacts must

be the result of intentional and affirmative action by the defendant itself. Id. at 585; Pasquale v.

Genovese, 136 Vt. 417, 421 (1978). Once the requisite minimum contacts are established, the reasonableness inquiry requires the court to determine that an assertion of personal jurisdiction does not offend "`traditional notions of fair play and substantial justice.'" Tom and Sally's

Handmade Chocolates, Inc., 977 F. Supp. 297, 300 (D. Vt. 1997); Metropolitan Life, 84 F.3d at 568. To make

this finding courts looks at "1) the burden on the defendant; 2) the forum State's interest in

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adjudicating the dispute; 3) the plaintiff's interest in obtaining convenient and effective relief; 4) the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and 5) shared interest of the several States in furthering fundamental substantive social policies." Country Home

Products, 350 F. Supp. at 568 (citing Burger King v. Rudzewicz, 471 U.S. 462, 477 (1985)). B. Personal Jurisdiction Over World Vision

As an initial matter, it is plain that this suit does not permit a finding of specific jurisdiction over World Vision, and Viko apparently does not dispute this assertion. (Doc. 9 at 6). This case arises out of

alleged facts that took place in Mozambique and are thus completely unrelated to any contacts World Vision may have with Vermont. Instead, Viko puts forth two arguments to show that both World Vision entities are subject to the general in personam jurisdiction of this Court. First,

Viko contends that WV, Inc. consented to the general jurisdiction of Vermont's courts by registering to do business here and appointing a registered agent to

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accept service of process.

(Doc. 22 at 1-5).

Since

consent to jurisdiction can itself satisfy due process, Viko argues, WV, Inc.'s Vermont contacts are completely irrelevant. Id. And although he does not mention it,

Viko must believe that this consent is imputable to WV Int'l, since WV Int'l does not have a registered agent of its own in Vermont.4 Second, Viko contends that World Vision maintains the necessary Vermont contacts to permit jurisdiction. His argument proceeds as follows: (1) WV, Inc. maintains continuous and systematic contacts with Vermont, (2) WV, Inc. is a dependent affiliate of WV Int'l and, (3) therefore, due process permits its contacts with Vermont to be imputed to WV Int'l to establish personal jurisdiction. In other words, Viko

does not dispute that WV Int'l, at least to the extent that it is separate from WV, Inc., lacks "continuous" and "systematic" business contacts of its own, but instead argues that WV, Inc.'s relationship with WV

In reality, World Vision International­not "Inc."­is likely to be the only defendant of any importance. Although Viko maintains that WV, Inc. may ultimately bear some or all of the liability in this case, World Vision has averred that only WV Int'l was responsible for the hiring, training, and employment of Mr. Impada. (Christine Naylor Aff. ¶ 20); (Doc. 9 at 22).

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Int'l is such that its contacts also establish personal jurisdiction over WV Int'l. (Doc. 9 at 9). In response, World Vision attacks both premises of Viko's "minimum contacts" argument.5 It argues that WV,

Inc. does not have substantial contacts with Vermont and, in any case, WV, Inc.'s Vermont contacts are irrelevant because WV, Inc. "is a separate legal entity from, and independent of, World Vision International," (Naylor Aff. ¶ 15) and therefore cannot serve as the basis for establishing personal jurisdiction over WV Int'l.6 World Vision also denies that WV, Inc. has (Doc.

consented to personal jurisdiction in Vermont.

5 It is worth noting that World Vision's presentation of its position on this motion has been less than transparent. In its initial motion to dismiss World Vision argued only that WV, Inc.'s Vermont contacts could not be imputed to WV Int'l, since WV Int'l is a separate legal entity with no Vermont contacts of its own. It provided no argument for the proposition that WV, Inc. itself was not subject to personal jurisdiction in Vermont. In fact, World Vision appeared to explicitly exclude WV, Inc. from both its 12(b)(2) and 12(b)(3) motions, while including it only in its motions for transfer. (Doc. 5 at 1). Only in its Reply to Plaintiff's Opposition did World Vision finally argue that neither WV, Inc. nor WV Int'l is subject to this Court's jurisdiction. Thus, World Vision created the bizarre possibility that WV Int'l could be dismissed for lack of personal jurisdiction because WV, Inc.'s Vermont contacts are insufficient, while WV, Inc. remains in Vermont court, at least in theory, because it never moved to dismiss in the first place. Importantly, any prejudice caused to Viko by this approach is minimized because the Court permitted supplemental filings and, in any case, Viko bore the burden of demonstrating jurisdiction from the outset. (Docs. 22 & 24). 6 That is not to say that the two companies are entirely unrelated, for the Defendants also state­with some ambiguity­that WV, Inc.'s "coordination" with WV Int'l is "subject to a mutual consent to operate according to a common set of principles and a statement of faith." (Naylor Aff. ¶ 18).

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24 at 2-5). i. Personal Jurisdiction Over World Vision, Inc. Since personal jurisdiction over WV Int'l is entirely dependent on whether this Court has general jurisdiction over WV, Inc., the Court begins with an analysis of (1) whether WV, Inc. has consented to jurisdiction, and (2) whether WV, Inc. has sufficient Vermont contacts to satisfy due process. a. Did World Vision, Inc. Consent to General Jurisdiction in Vermont? Viko argues that WV, Inc. consented to in personam jurisdiction in Vermont's courts for all causes of action, including those completely unrelated to Vermont, by registering to do business and appointing a registered agent in Vermont. (Doc. 22). Viko contends

further that since individual defendants are free to waive objection or consent to personal jurisdiction, the Court need not determine whether World Vision maintains the necessary "minimum contacts" with Vermont to satisfy due process. Id.

The first step in evaluating Viko's claim must be to state the issue before the Court precisely. The

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question is not whether, as some general matter, registering to do business in a forum by a foreign corporation amounts to jurisdictional consent. Rather,

the initial inquiry is whether, as a matter of Vermont law, WV, Inc.'s compliance with Vermont's foreign corporation registration statute means that it has expressly consented to personal jurisdiction in Vermont, even when an assertion of jurisdiction would be otherwise impermissible. After all, the extent of Vermont's reach over nonresident defendants is controlled by its legislature, with only constitutional ceilings, and not floors, by which to abide. See, e.g., Avery v. Bender, 204 A.2d

314, 316-317 (Vt. 1964); Pulson v. American Rolling Mill Co.,170 F.2d 193, 194 (1st Cir.1948) ("There is nothing to compel a state to exercise jurisdiction over a foreign corporation unless it chooses to do so, and the extent to which it so chooses is a matter for the law of the state as made by its legislature."). This

approach is also consistent with the rule that the "amenability of a foreign corporation to suit in a federal court in a diversity action is determined in

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accordance with the law of the state where the court sits, with federal law entering the picture only for the purpose of deciding whether a state's assertion of jurisdiction contravenes a constitutional guarantee." Metropolitan Life, 84 F.3d at 567 (internal quotation marks omitted); see also Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 711-712 (1982) (Brennan, J., concurring). Thus, decisions by courts faced with this issue in other jurisdictions­including the Supreme Court­are not binding, though they may be persuasive to the extent they interpret and apply relevantly similar statutes. Finally, understanding the initial state law inquiry makes clear that only after a finding that WV, Inc. has in fact provided its express consent to be sued in Vermont must the Court consider whether asserting jurisdiction on that basis alone would be constitutionally permissible. F.3d at 567. Given the nature of the question, then, it is puzzling that Viko fails to put forth a statutory construction argument, or, for that matter, even Metropolitan Life, 84

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mention the Vermont registration statute at all. 22).

(Doc.

Instead, he discusses a completely inapposite

Vermont Supreme Court decision,7 and urges the Court to follow the precedent of the Second Circuit and New York, though he cites not a single Second Circuit case in his favor. (Doc. 22 at 4).

Vermont, like every other state and the District of Columbia, requires corporations organized and incorporated elsewhere to register to do business. 11B V.S.A. § 15.01. See

These laws are generally referred In

to as "qualification" or "registration" statutes. order to register in Vermont, a foreign corporation

must submit an application which indicates, among other things, "the address of its registered office in this state and the name of its registered agent at that office." 11B V.S.A. § 15.03(a)(5). The corporation

must also "continuously maintain...a registered agent" to remain registered.
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11B V.S.A. § 15.07(2).8

See the Court's discussion of Burrington v. Ashland Oil Co., Inc., 356 A.2d 506 (Vt. 1976), infra. World Vision cites 11 V.S.A. § 1630 as the relevant appointment statute, and urges the Court to reject the notion of consent via registration because § 1630 limits service upon the registered agent to "action[s] founded upon liability incurred in this state." (Doc. 24 at 4). However, § 1630 applies only to nonresidents doing business in Vermont in their "individual capacity" or under an assumed name. See 16 V.S.A. § 1630. Such is not the case here, and the applicable statutory
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These provisions say nothing at all about jurisdiction, let alone that by complying one expressly consents to personal jurisdiction for all matters, even those wholly unrelated to Vermont. In fact, 11B V.S.A.

§ 15.10(a) restricts service upon a foreign corporation's registered agent to service of process that is "required or permitted by law to be served on the foreign corporation." Far from supporting the

proposition that appointing an agent effectually waives all other legal protections from amenability to judgment, this qualification suggests that the due process minimum contacts requirement is essentially built into the statute, at least when the assertion of general jurisdiction is at stake.9 See, e.g., In re

Mid-Atlantic Toyota Antitrust Litig., 525 F. Supp. 1265, 1278 (D.C. Md. 1981). Even without this restriction, though, and

provisions are those requiring non-profit foreign corporations to register in Vermont. See 11B V.S.A. § 15.01-15.10. The language of 11B V.S.A. § 15.10 is more restrictive than that of some other statutes pursuant to which consent to general jurisdiction was found. See, e.g., Knowlton v. Allied Van Lines, Inc., 900 F.2d 1196, 1199 -1200 (8th Cir. 1990) (applying a Minnesota state statute that said only that, "[a] foreign corporation shall be subject to service of process . . . [b]y service on its registered agent[.]"); New York Business Corporation Law § 304: "The secretary of state shall be the agent of . . . every authorized foreign corporation upon whom process against the corporation may be served."
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assuming that service upon a foreign corporation's registered agent is effective for all causes of action, there remains an important distinction between mere service of process on the one hand, and actual amenability to judgment­that is, personal jurisdiction­on the other. While effective service

demonstrates constitutionally sufficient notice, it does not, by itself, establish jurisdiction over the defendant's person. See, e.g., World-Wide Volkswagen

Corp. v. Woodson, 444 U.S. 286, 291 (1980) ("Due process requires that the defendant be given adequate notice of the suit...and be subject to the personal jurisdiction of the court.") (internal citations omitted); Omni Capital Intern., Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987); Fed. R. Civ. P. 4(d)(5) ("Waiving service of a summons does not waive any objection to personal jurisdiction or to venue.").10

10 The Court of Chancery of New Jersey explained this distinction well in 1905, saying that the effect of its registration statute "was not to enlarge the jurisdiction of the court, but to provide a method for enforcing its jurisdiction. When the artificial being came within the state and transacted business, it brought itself within the jurisdiction of the courts of the state; but, until a method was provided for bringing the foreign corporation before the court, the jurisdiction of the court could not be enforced. When such method was provided, it did not serve to give the court any jurisdiction that it did not have before, but merely enabled it to enforce that which it had." Groel v. United Electric Co., 60 A. 822, 828 (N.J. Ch. 1905).

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It is informative, then, that while § 15.03 requires the appointment of an agent, and § 15.10 permits service of process upon that agent, none of the relevant provisions explicitly require consent to jurisdiction. Additionally, there are no prior decisions applying Vermont law to support Viko's argument. relies primarily on Burrington v. Ashland Oil Co., Inc., 356 A.2d 506 (Vt. 1976), a Vermont Supreme Court decision in which the court found jurisdiction to adjudicate a case in which the defendant was a foreign corporation and the alleged tort occurred outside of Vermont. Viko believes this case to be persuasive Viko

because the defendant was registered to do business in Vermont, and the court established jurisdiction without entering into any further due process analysis. 22 at 1-2). In Burrington, however, the only (Doc.

jurisdictional question was whether a Vermont state court possessed jurisdiction over the subject matter, not the defendant. The court described the defendant's

objection "that the accrual of the cause of action in Maine and the non-residency of the parties deprive the

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Vermont courts of jurisdiction over the subject matter," Burrington, 356 A.2d at 509 (emphasis added),

and then framed the issue presented as whether "the lower court [has] jurisdiction over a cause of action arising outside of Vermont, where both the plaintiffadministrator and defendant corporation are nonresidents of Vermont and the defendant is registered to do business in Vermont[.]" Id. (emphasis added).11

Beyond the issue of jurisdiction, the court only considered whether Vermont was a sufficiently convenient forum under the doctrine of forum non conveniens. Id. at 509-510. Thus, Burrington is not

relevant to the present inquiry. Further, in Metropolitan Life, 84 F.3d 560 (2d Cir. 1996) the Second Circuit found personal jurisdiction lacking when a defendant registered to do business in Vermont was sued in Vermont.12
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The court

Burrington is also distinguishable because "a most compelling factor" in its holding was the fact that a state court without jurisdiction must dismiss the matter outright, while a federal court, such as this one, is statutorily authorized to transfer the case within the federal system. Burrington, 356 A.2d at 509; see also 28 U.S.C. § 1406(a).
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Viko characterizes Metropolitan Life as upholding general jurisdiction, but that is a misreading of the case. (Doc. 22 at 3, n.1). In fact, the Circuit found that "the exercise of jurisdiction...would violate traditional notions of fair play and substantial justice," and affirmed the District Court's order dismissing the case for lack of personal jurisdiction. Metropolitan Life, 84 F.3d

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proceeded directly to a minimum contacts analysis, and ultimately found that Vermont's exercise of in personam jurisdiction over the defendant would have been "unreasonable." Id. at 576. Viko argues that this case

is insignificant because "[w]hile the defendant . . . had registered to do business in Vermont, it apparently had not appointed a service agent[.]" n.1). (Doc. 22 at 3,

But Viko fails to deduce that, just as it is

under current Vermont law, the defendant in Metropolitan Life could not have registered to do business if it had not also appointed an agent to receive process. See 11 V.S.A. § 2105 (1990).13

To be sure, Metropolitan Life does not specifically address the issue of whether registering to do business in Vermont is the equivalent of consenting to general jurisdiction in Vermont's courts. But its example as a case denying Vermont personal jurisdiction over a foreign corporation registered to do business is further evidence that Vermont law

at 576. Viko's attempt to distinguish Metropolitan Life on this basis is also surprising because the Burrington Court­upon which Viko principally relies­likewise makes no specific mention of the defendant's registered agent, noting only that it was registered to do business in Vermont. Burrington, 356 A.2d 506 (Vt. 1976).
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requires more than mere compliance with its registration statute before a defendant may be haled into court. Finally, a finding of general jurisdiction on a consent-based theory in this case would require the Court to adopt a unique conception of consent relative to all other legal contexts. In this case, there is no

contract between Viko and World Vision to litigate in Vermont, no agreement to arbitrate, and no stipulation to jurisdiction by the Defendants. See, e.g., Ins.

Corp. of Ireland, Ltd., 456 U.S. at 703-704 (providing a list of ways in which defendants may consent to jurisdiction which does not include registering to do business).14 Instead, Viko claims consent based on

compliance with a statute that says nothing on its face about either jurisdiction or consent, and in a state in which the limited case law on the issue, if anything, points in the opposite direction. Under these

conditions it is impossible to see how World Vision
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The Eighth Circuit reasoned, without citation to authority, that consent via registration was "possibly omitted from the Supreme Court's list because it is of such long standing as to be taken for granted." Knowlton v. Allied Van Lines, Inc., 900 F.2d 1196, 1200 (8th Cir.1990). This seems improbable, however, unless one also assumes that providing consent via a contractual arrangement­which is listed­is somehow unobvious.

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gave its express and considered "consent to be hauled into [Vermont] courts on any dispute with any party anywhere concerning any matter" when it submitted an application to transact business within Vermont. Wenche Siemer v. Learjet Acquisition Corp., 966 F.2d 179, 183 (5th Cir. 1992); see generally Lee Scott Taylor, Registration Statutes, Personal Jurisdiction, and the Problem of Predictability, 103 COLUM. L. REV. 1163 (2003) (arguing that consent is an inadequate theory upon which to find general jurisdiction from compliance with registration statutes because the consequences of such compliance are unpredictable); Matthew Kipp, Inferring Express Consent: The Paradox of Permitting Registration Statutes to Confer General Jurisdiction, 9 REV. LITIG. 1, 42-43 (1990) (arguing that "it is contradictory to infer from a statute an express consent to general jurisdiction when that statute does not explicitly mention the consequences that compliance will have on jurisdiction."). Even if the Court were

so inclined, Vermont law does not permit such a tortured conception of consent to be applied in the context of personal jurisdiction. See First Nat'l Bank

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of Boston v. Avtek, Inc., 360 A.2d 80, 85 (Vt. 1976) ("Consents to jurisdiction are narrowly construed, and will not be extended beyond their plain meaning and scope."). For all of the foregoing reasons, I find that compliance with Vermont's foreign corporation registration statute does not entail consent to general personal jurisdiction, at least independently of the minimum contacts required by due process. However,

since courts have considered this issue pursuant to similar statutes in a variety of jurisdictions, a few words are necessary to explain that such decisions do not compel a finding of consent in this case. Rightly or wrongly, the continued notion that appointing a local agent to accept service amounts to jurisdictional consent is derived largely from the 1917 Supreme Court decision of Pennsylvania Fire Ins. Co. v. Gold Issue Mining & Milling Co., 243 U.S. 93 (1917); see also Pierre Riou, General Jurisdiction Over Foreign Corporations: All That Glitters Is Not Gold Issue Mining, 14 REV. LITIG. 741, 748-752 (1995); Lea Brilmayer, et al., A General Look At General

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Jurisdiction, 66 TEX. L. REV. 721, 755-760 (1988). Gold Issue, the defendant Pennsylvania insurance

In

company obtained a license to do business in Missouri and, as required, "filed with the superintendent of the insurance department a power of attorney consenting to that service of process upon the superintendent should be deemed personal service upon the company[.]" Id. at 94. After being sued in Missouri on a cause of action

unrelated to its Missouri contacts, the defendant argued that service upon its agent was "insufficient except in suits upon Missouri contracts[.]" Id. The

Missouri Supreme Court rejected this view, construing the relevant appointment statute to entail consent to accept service for all lawsuits. Id. at 95.

The Supreme Court subsequently affirmed and found no constitutional infirmities. Id. In a brief and

rather cryptic opinion by Justice Holmes, the Court explained that the Missouri Supreme Court's statutory construction "did not deprive the defendant of due process of law even if it took the defendant by surprise, which we have no warrant to assert." Id.

Holmes later distinguished between implied consent

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inferred from the doing of business within a state, and actual consent provided by compliance with the state's appointment statute: "But when a power actually is conferred by a document, the party executing it takes the risk of the interpretation that may be put upon it by the courts. The execution was the defendant's Id. at 96.

voluntary act."15

Obviously, Gold Issue was decided prior to the landmark Supreme Court decision of International Shoe, which shifted the paradigm of personal jurisdiction away from a state's de facto "physical power" over a defendant, see McDonald v. Mabee, 243 U.S. 90, 91 (1917); Pennoyer v. Neff, 95 U.S. 714 (1877), towards compliance with "fair play and substantial justice," and the qualitative relationship between the defendant, the forum, and the litigation. International Shoe, 326

U.S. at 316-319; Shaffer v. Heitner, 433 U.S. 186, 204 (1977). As explained above, personal jurisdiction over

a foreign defendant is now generally established by an assessment of the defendant's contacts with the forum

Of course, the "interpretation" was that of the Missouri Supreme Court­the only question for Justice Holmes and the U.S. Supreme Court was whether that interpretation violated the Due Process Clause.

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state, rather than whether the defendant is "present" within the state. See Shaffer, 433 U.S. at 212 ("all

assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny."). Nonetheless, some courts persist in following Gold Issue to find consent to general personal jurisdiction when a foreign corporation registers to do business. For example, the Delaware Supreme Court conducted a thorough examination of Gold Issue and the transition to International Shoe in Sternberg v. O'Neil, 550 A.2d 1105 (Del. 1988). In Sternberg, the court explained

that "the holdings of the United States Supreme Court which involved foreign corporations, following International Shoe, are entirely consistent with the continued viability of its earlier holding in Pennsylvania Fire Ins. Co. [v. Gold Issue]." 1113. The court concluded that if "a foreign Id. at

corporation has expressly consented to the jurisdiction of a state by registration, due process is satisfied and an examination of `minimum contacts' to find implied consent is unnecessary." Id.; see also The

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Rockefeller Univ. v. Ligand Pharm., 581 F. Supp. 2d 461, 467 (S.D.N.Y. 2008) (finding that the defendant's "unrevoked authorization to do business and its designation of a registered agent for service of process amount to consent to personal jurisdiction in New York."); Knowlton v. Allied Van Lines, Inc., 900 F.2d 1196, 1200 (8th Cir. 1990) ("We conclude that appointment of an agent for service of process . . . gives consent to the jurisdiction of Minnesota courts for any cause of action, whether or not arising out of activities within the state. Such consent is a valid

basis of personal jurisdiction, and resort to minimumcontacts or due-process analysis . . . is unnecessary."); Sondergard v. Miles, Inc., 985 F.2d 1389, 1397 (8th Cir. 1993) (citing Gold Issue, 243 U.S. at 96). But other courts have refused to infer jurisdictional consent from compliance with registration statutes, arguing, inter alia, that it is inconsistent with the current "fundamental fairness" model of personal jurisdiction under International Shoe and its progeny. See, e.g., Freeman v. The Second

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Judicial District Court, 1 P.3d 963 (Nev. 2000); Ratliff v. Cooper Labs., Inc., 444 F.2d 745, 748 (4th Cir. 1971) ("Applying for the privilege of doing business is one thing, but the actual exercise of that privilege is quite another . . . The principles of due process require a firmer foundation than mere compliance with state domestication statutes."); Consol. Dev. Co. v. Sherritt, Inc., 216 F.3d 1286, 1293 (11th Cir. 2000) ("Courts of appeals that have addressed this issue have rejected the argument that appointing a registered agent is sufficient to establish general personal jurisdiction over a corporation."); Sandstrom v. ChemLawn Corp., 904 F.2d 83, 89 (1st Cir. 1990) (mere license to do business and designation of agent for service of process within the forum state insufficient to confer general jurisdiction); Learjet Acquisition Corp., 966 F.2d at 183 ("In short, a foreign corporation that properly complies with the Texas registration statute only consents to personal jurisdiction where such jurisdiction is constitutionally permissible."). In particular, reliance on Gold Issue and other

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pre-International Shoe case law has come under scrutiny by courts and contemporary legal scholars. Some have

contended that the "consent" found by Justice Holmes in Gold Issue was not really consent at all, but rather a functional proxy for the physical presence generally required to assert jurisdiction under the framework of Pennoyer v. Neff. See Kipp, Inferring Express Consent, Under this

9 REV. LITIG. at 9; Freeman, 1 P.3d at 968.

view, the reasoning of Gold Issue was necessary to ensure that state residents had a means to pursue legal claims against the foreign corporations doing business in their state. Under the traditional rule that

corporations legally existed only in the state of their incorporation, Bank of Augusta v. Earle, 38 U.S. 519, 588 (1839), state registration statutes created the legal fiction of "presence" within the forum that allowed foreign corporations to be served and brought to appear before local courts.16 See In re DES Cases, Since this

789 F. Supp. 552, 580 (E.D.N.Y. 1992).

16 The International Shoe Court itself gave credence to this view, observing that "some of the decisions holding the corporation amenable to suit have been supported by resort to the legal fiction that it has given its consent to service and suit, consent being implied from its presence in the state through the acts of its authorized agents. . .[b]ut more realistically it may be said that those authorized acts were of such a nature as to justify the fiction." International Shoe, 326 at 318-319 (internal citations omitted).

28

rationale no longer holds true under the current doctrine of minimum contacts and out-of-state service, some have argued that International Shoe was as deadly to Gold Issue as it was to Pennoyer, and that service upon a registered agent does not confer jurisdiction absent sufficient forum contacts. See, e.g., Freeman,

1 P.3d at 968; Shaffer, 433 U.S. at 227 (Brennan, J., dissenting) ("Once we have rejected the jurisdictional framework created in Pennoyer v. Neff, I see no reason to rest jurisdiction on a fictional outgrowth of that system such as the existence of a consent statute."); In re Mid-Atlantic Toyota Antitrust Litig., 525 F. Supp. 1265, 1278 n.10 (D.C. Md. 1981) ("consent statutes are largely obsolete and serve only to confuse matters in unusual cases. . .where a corporation's only contact with a state is its act of registering to do business there."). Others have argued persuasively that the issue in Gold Issue was limited to consent to service only, and not to personal jurisdiction. See Pierre Riou, General

Jurisdiction Over Foreign Corporations: All That Glitters Is Not Gold Issue Mining, 14 REV. LITIG. 741

29

(1995); see also Cognitronics Imaging Sys., Inc. v. Recognition Research Inc., 83 F. Supp. 2d 689, 692 n.1 (E.D. Va. 2000). grounds. This view is supported on numerous

First, while Justice Holmes made no mention

of the defendant's state contacts aside from its appointed agent, the lower court's finding of jurisdiction was based, in part, upon the premise that companies subject to suit on the basis of registration were also conducting business in the forum. Gold Issue

Min. & Mill. Co. v. Pennsylvania Fire Ins. Co., 267 Mo. 524 (1916), aff'd 243 U.S. 93 (1917). Second, the Gold

Issue opinion itself speaks only of effective service, saying, for example, "[t]he defendant had executed a power of attorney that made service upon the superintendent [of insurance] the equivalent of personal service." Gold Issue, 243 U.S. at 95. In

contrast, there is no indication by Justice Holmes that the Missouri statute was jurisdictional, at least not beyond conferring jurisdiction that was already established by the defendant's business activities. Third, there is evidence that the prevailing practice during this era required a showing that a corporation

30

was actually doing business in the forum state, along with adequate service, to establish personal jurisdiction. United States v. American Bell Tele.

Co., 29 F. 17, 34-35 (Circuit Court, S.D. Ohio 1886); Connecticut Mut. Life Ins. Co. v. Spratley, 172 U.S. 602, 618 (1899). Accordingly, under this

interpretation, Gold Issue allowed states to use registration statutes as a means to reach foreign corporations and enforce their jurisdiction, but it did not increase their jurisdiction to include registered foreign corporations that maintained no other business contacts in the forum. This same interpretation can be given to Judge Cardozo's opinion in Bagdon v. Philadelphia & Reading Coal & Iron Co., 111 N.E. 1075 (N.Y. 1916), upon which Gold Issue heavily relies, and which is the foundational case for the general New York rule that Viko urges the Court to follow. Gold Issue, 243 U.S.

at 95; The Rockefeller Univ., 581 F. Supp. at 466-467; (Doc. 22 at 3-4). Later courts finding consent via

registration have pounced on Justice Cardozo's promulgation that "[t]he meaning must therefore be that

31

the appointment [of a registered agent] is for any action which under the laws of this state may be brought against a foreign corporation. . .[i]t means that, whenever jurisdiction of the subject-matter is present, service on the agent shall give jurisdiction of the person." Bagdon, 111 N.E. at 1076. But they

ignore the full context of this statement and Judge Cardozo's later qualification that "[i]t is true that even the president of a foreign corporation may be here without bringing the corporation itself within this jurisdiction . . . [b]ut when a corporation is engaged in business in New York, and is here represented by an officer, he is its agent to accept service, though the cause of action has no relation to the business here transacted." Id. at 1077. Thus Judge Cardozo

apparently endorsed the rule that effective service is a necessary but not sufficient element of the jurisdictional equation, and must be combined with a showing that the defendant actually conducts business in the forum state. See Enger v. Midland Nat. Life

Ins. Co., 222 N.W. 901, 903 (Minn. 1929) ("So long as defendant is here doing business, having appointed the

32

insurance commissioner . . . its lawful attorney in fact . . . we deem the service of this summons accordingly as effective to give jurisdiction over defendant as if served upon its principal agent[.]") (emphasis added) (citing Bagdon, 111 N.E. 1075); Tauza v. Susquehanna Coal Co., 115 N.E. 915, 917-918 (N.Y. 1917) ("Unless a foreign corporation is engaged in business within the state, it is not brought within the state by the presence of its agents."). Thus, there is substantial evidence to suggest that those jurisdictions holding onto the notion of registration as consent to general jurisdiction do so based on a complete misinterpretation of prior law. Further, to the extent that early cases such as Bagdon and Gold Issue hold that compliance with a registration requirement alone establishes personal jurisdiction ­whether based on "consent," "presence," or some other theory­the viability of such holdings is cast in doubt by the Supreme Court's adoption of the "minimum contacts" approach to jurisdiction and due process in

33

International Shoe.17 446.

See also Perkins, 342 U.S. at

To be sure, there exists a body of case law supporting Viko's argument that World Vision, Inc. has consented to be sued on all matters in Vermont. But

the foundation supporting that law is too brittle and unsettled to compel the Court to follow it here, especially when so many jurisdictions disagree, and a plain reading of Vermont's registration statute, along with other relevant Vermont law and modern Supreme Court cases, point with relative clarity in the opposite direction.18
17

Accordingly, I find that absent

Since Insurance Corp. of Ireland, 456 U.S. 694 (1982), there is little doubt that due process permits defendants to consent to jurisdiction. But it is a separate question whether due process will allow the inference of jurisdictional consent from compliance with a state registration statute, especially one, like Vermont's, from which the inference is less than obvious. On this precise point courts appear to be divided. See, e.g., In re DES Cases, 789 F. Supp. at 591-592 ("Although the Supreme Court has not directly pronounced on the subject . . . the constitutionality of the traditional practice of asserting general jurisdiction solely on the basis of a corporation's being licensed to do business in the forum seems to have survived International Shoe."); Learjet Acquisition Corp., 966 F.2d at 184 (commenting that it would violate due process to find jurisdiction over a defendant based solely on its registration to do business). Even if due process is satisfied with such jurisdiction, though, placing this condition on foreign corporations engaged in interstate commerce may exceed states' authority under the Dormant Commerce Clause. See, e.g., Davis v. Farmers' Co-op. Equity Co., 262 U.S. 312 (1923); Pensacola Tel. Co. v. Eastern Union Tel. Co., 96 U.S. 1 (1877). Notably, not even the law of New York is universally in Viko's favor. See, e.g., Bellepointe, Inc. v. Kohl's Dept. Stores, Inc., 975 F. Supp. 562, 564 (S.D.N.Y. 1997) (declining to follow the proposition that possession of a license to do business is sufficient to assert jurisdiction to "adhere instead to the rule . . . that a license to do business is not dispositive on the issue of personal jurisdiction.")
18

34

the requisite "minimum contacts" with the state of Vermont, service upon a defendant foreign corporation's registered agent does not, by itself, confer general personal jurisdiction over the defendant. Whether such

contacts exist in this case is the matter to which I now turn. b. Are World Vision, Inc.'s Vermont Contacts Sufficient to Satisfy Due Process? Viko alleges that WV, Inc. maintains contacts with Vermont that are continuous and "so substantial and of such nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities." These contacts include (1) WV,

Inc.'s registration to do business in Vermont and the appointment of an agent to receive service of process, (2) a World Vision radio program, "World Vision Report," that is regularly broadcast via local radio stations in seven Vermont localities, and (3) WV, Inc.'s website, which allows users, including Vermonters, to make online donations. Doc. 9-3 at 28.) (Doc. 9 at 7-8;

Viko also contends, though without

(internal citation omitted).

35

any discernable bases, that World Vision "receives substantial benefits from marketing and fundraising conducted in Vermont[.]" (Doc. 9 at 8). Though the relevance of each of these contacts may be analyzed individually, they ultimately must be considered together, in sum, to evaluate the extent of WV, Inc.'s Vermont contacts. F.3d at 571. The most complex issue presented is the degree, if any, to which WV, Inc.'s website should be considered a continuous and substantial contact with the state of Vermont. As many courts have already recognized, the Metropolitan Life, 84

internet presents a new test for the traditional minimum contacts standards promulgated by the Supreme Court in International Shoe and its progeny. A website

hosted at one location can be accessed not only in every state of the U.S., but all over the world. And

perhaps most importantly in the context of personal jurisdiction, "[u]nlike newspaper, mailing, radio, television, and other media containing advertisements and solicitations, most Internet advertisements and solicitations are not directed at . . . specific

36

geographic areas or markets; to the contrary, advertising on the Internet targets no one in particular and everyone in particular in any given geographic location." Millennium Enter., Inc. v.

Millennium Music LP, 33 F. Supp. 2d 907, 914 (D. Or. 1999). The seminal case on the internet and jurisdiction is likely Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997), in which the court described its "sliding scale" test for individual websites. In designing its "sliding scale" the court

tried to balance the reality that the Internet allows companies to maintain substantial commercial contacts in many fora without any actual physical presence, with the concern that jurisdiction predicated on websites could "turn the notion of federal personal jurisdiction on its head, eliminating the protections that jurisdictional requirements were designed to safeguard." Bell v. Imperial Palace Hotel/Casino, 200

F. Supp. 2d 1082, 1091 (E.D. Mo. 2001); Cf. Hanson v. Denckla, 357 U.S. 235, 251 (1958). The Zippo court found that, "the likelihood that

37

personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet." Id. at 1124. The court then described its

scale, on one end of which are "passive" websites which merely post information that can be accessed by users in a foreign jurisdiction. On the other end are

"active" sites through which "a defendant clearly does business over the Internet," such as by entering "contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet." Id. In the former

instance personal jurisdiction will not lie, but in the latter a defendant's business contacts via online interactions may bring its person within the jurisdiction of a foreign forum. The court also

described an intermediate area on the scale for websites that are "interactive," meaning a user can exchange information with the host computer, but is not able to enter contracts or engage in other commercial activity online. In these cases, "the exercise of

jurisdiction is determined by examining the level of

38

interactivity and commercial nature of the exchange of information that occurs on the Website." Id.; see also

On-Line Tech. v. Perkin Elmer Corp., 141 F. Supp. 2d 246, 265 (D. Conn. 2001). While the Zippo test has been used repeatedly in many jurisdictions, and both parties urge it upon the Court, there are two impediments to its application here.19 First, Zippo concerned only specific personal

jurisdiction, not general, so its reasoning is not perfectly analogous to the present case.20 Second,

many courts have recognized that the "test" is not really a test at all, at least not in the sense that it represents a formal legal standard. Instead, the

sliding scale is merely an analytical framework through which judicial evaluations about online activity can be

Viko's assertion that "[t]his Court has adopted the factors set out in Zippo . . . in order to determine whether maintenance of an interactive website supports a finding of general jurisdiction in this district" is not accurate. First, the case cited by Viko, Hyperkinetics Corp. v. Flotec, Inc., 2003 WL 25278086 (D. Vt. September 25, 2003) concerned a claim that the defendant's website gave rise to specific jurisdiction. Id. at *5. Second, while the Court discussed Zippo, it did not formally adopt it. Id. World Vision also claims Zippo applies to this case. (Paper 16 at 4). A number of courts faced with a general jurisdiction inquiry have relied on Zippo, though the analysis is generally modified to ensure that sufficient forum contacts are present. See, e.g., Mink v. AAAA Development, LLC, 190 F.3d 333, 335-336 (5th Cir. 1999); Gorman v. Ameritrade Holding Corp., 293 F.3d 506, 513 (D.C. Cir. 2002); Soma Medical Int'l v. Standard Chartered Bank, 196 F.3d 1292 (10th Cir. 1999).
20

19

39

made.

See, e.g., Lakin v. Prudential Sec., Inc., 348

F.3d 704, 711 (8th Cir. 2003). As the Zippo court itself noted, the sliding scale only goes to the "likelihood," or potential, that a particular website has for maintaining continuous and substantial contacts in a foreign jurisdiction. "The

analysis cannot begin and end with the `active' and `passive' labels . . . [t]he fact that a site is classified as `interactive' is irrelevant to the analysis of general jurisdiction if no one from the forum state has ever used the site." Bell v. Imperial

Palace Hotel/Casino, 200 F. Supp. 2d at 1091-1092. Accordingly, "While . . . the Zippo sliding scale of interactivity may help frame the jurisdictional inquiry in some cases . . . it does not amount to a separate framework for analyzing internet-based jurisdiction," and the traditional notions of minimum contacts and due process­that is, whether the defendant deliberately maintains substantial and continuous contacts in a particular forum­still govern the inquiry. Best Van

Lines, Inc. v. Walker, 490 F.3d 239, 252 (2d Cir. 2007) (internal quotation marks omitted); see also Hy Cite Corp. v. Badbusinessbureau.com, LLC, 297 F. Supp. 2d
40

1154, 1160 (W.D. Wis. 2004) ("regardless of how interactive a website is, it cannot form the basis for personal jurisdiction unless . . . the contacts through the website are so substantial that they may be considered `systematic and continuous'"); Coastal Video Communications Corp. v. Staywell Corp., 59 F. Supp. 2d 562 (E.D. Va. 1999). This focus on the actual contacts made through a website, as opposed to the mere nature of the website itself, is particularly important in the context of general personal jurisdiction. Indeed, there is a

"consensus among the courts . . . that general jurisdiction cannot be founded solely on the existence of a defendant's internet website." Degesse v. Plant Hotel N.V., 113 F. Supp. 2d 211, 221 (D. N.H. 2000); see also WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL: 3d § 1073.1 (2002) ("The mere maintenance of a website in one state, by itself, apparently will not be sufficient to subject a defendant to the general in personam jurisdiction of a federal court in another state."). Accordingly, in order to demonstrate jurisdiction a plaintiff cannot merely show the existence of a
41

website­even one that is "active" or "interactive"­but must show actual substantial and continuous contact through the website with the forum state. ESAB Group,

Inc. v. Centricut, LLC, 34 F. Supp. 2d 323, 330-331 (D. S.C. 1999) ("the critical issue for the court to analyze is the nature and quality of commercial activity actually conducted by an entity over the Internet in the forum state."). That a website creates

the mere potential for forum contact, or renders contact foreseeable, will not be sufficient to establish a substantial presence within the forum. Bensusan Rest. Corp. v. King, 937 F. Supp. 295, 301 (S.D.N.Y. 1996) aff'd 126 F.3d 25 (2d Cir. 1997). In this case, WV, Inc.'s website promotes World Vision and permits internet users to make donations via online transactions and sign up for email updates from World Vision. (Doc. 9 at 7-8; Doc. 9-3 at 28). It See

also allows users to order, free of charge, World Vision display materials for individual use. Id.

Despite conceding that the site "provides a portal for making donations," World Vision makes the odd claim that it "is nothing more than a passive site that makes information available about the World Vision
42

partnership[.]" (Doc. 16 at 5). obviously, will not hunt.

That dog, quite

But as discussed, the extent

to which WV, Inc.'s website has the functional capacity for commercial interactivity is of little relevance absent actual and continuous contacts with Vermont. Consistent with this legal approach, other courts have declined to assert personal jurisdiction when the defendant's contacts consist of an interactive website in addition to other minimal forum contacts. For

example, in Degesse v. Plant Hotel N.V., 113 F. Supp. 2d 211 (D. N.H. 2000), the district court found that it did not have general personal jurisdiction over a foreign hotel company, even though the defendant broadcast television advertisements in the forum and maintained a website through which forum residents could make reservations. The court said that, "[e]ven

assuming that the advertisements were aired on local television, and even taken together with [the defendant's website], such activities do not constitute continuous and systematic contacts and therefore cannot support an assertion of general jurisdiction." 219. Moreover, the court added that because the Id. at

plaintiffs offered no evidence that the defendant
43

"actually and deliberately used its website to conduct commercial transactions or other activities with residents of the forum . . . the website adds no support to their claim of general jurisdiction." at 223-224 (emphasis added). In Hy Cite Corporation, 297 F. Supp. 2d 1154 (W.D. Wis. 2004) a district court in Wisconsin considered personal jurisdiction based on a website similar to that of WV, Inc. In Hy Cite, the defendant, a company Id.

designed to aid disgruntled consumers, operated a website that solicited donations and allowed users to volunteer as "rip-off reporters." Id. at 1161. In

addition to its website the defendant sold one book to, and had communications with, Wisconsin residents. Id.

The court found that "plaintiff's argument that general jurisdiction exists in this case borders on the frivolous . . . With the exception of the book sale to one Wisconsin resident and the communication between the parties, all of the activities identified by the plaintiff consist of nothing more than potential contacts." Id.

Here, Viko has alleged nothing more than potential contacts with Vermont via WV, Inc.'s website.
44

Despite

Viko's assertion that WV, Inc.'s website is "directed to Vermont residents," and "although [he] characterizes defendant's internet-based activities as `soliciting' [Vermont] business, [he] has not alleged that defendant has done anything to target internet users in [Vermont]."21 (Doc. 9 at 7; Doc. 22 at 8); Hy Cite, 297 Accordingly, although WV, Inc.'s

F. Supp. 2d at 1161.

website may be a "continuous" contact in the sense that it is available to Vermonters 24 hours of every day, it is not "substantial" and is therefore not a significant contact for purposes of asserting general personal jurisdiction. "World Vision Report" is also broadcast regularly throughout Vermont but, far from "peppering the airwaves" as Viko describes, the broadcast occurs only on weekends and generally in the early morning hours. (Doc. 9 at 8, Doc. 16 at 3.) This contact is

continuous in that it airs every week, but it is hardly substantial. Moreover, there are no allegations that

the broadcast is in any way commercial in nature, or
21 Viko initially argued that the "drop down" menus on WV, Inc.'s website which allowed for the selection of "Vermont" (as well as every other state) was evidence that the defendant targeted Vermonters. (Doc. 9 at 7-8). But he has since conceded that this fact would only be relevant in a case of specific jurisdiction. (Doc. 22 at 8 n.6).

45

even that it describes or discusses World Vision projects. According to the evidence submitted by Viko,

it is simply a news broadcast, designed to "capture[] the human drama behind global issues and events affecting the world's poorest children and families." (Doc. 9 at 8). This evidence distinguishes this case

from those cited by Viko in which sustained local advertising supported a finding of jurisdiction. 22 at 5). And while the broadcast is apparently made via local affiliate stations, there is no evidence that the show specifically targets Vermonters. To the contrary, (Doc.

counsel for World Vision represented that "the radio broadcasts at issue are nationwide in scope" (Doc. 24 at 7), an assertion uncontradicted by Viko. Finally, we return to the issue of WV, Inc.'s registered agent, analyzing it not as consent, but as one WV, Inc.'s "contacts" with the state of Vermont. In this regard, and as recognized by this Circuit, I am persuaded that a registered agent and a concomitant authorization to do business are of minor significance. Much like the creation of a website, the mere authorization to do business is only a potential
46

contact, and is clearly distinct from actually engaging in continuous and substantial commercial activity. See

Metropolitan Life, 84 F.3d at 570 (citing Sandstrom v. ChemLawn Corp., 904 F.2d 83, 89 (1st Cir 1990), for the proposition that a "mere license to do business...within [the] forum state [is] insufficient to confer general jurisdiction"); Ratliff, 444 F.2d at 748 ("Applying for the privilege of doing business is one thing, but the actual exercise of that privilege is quite another . . . The principles of due process require a firmer foundation than mere compliance with state domestication statutes."); Contra Junction Bit & Tool Co. v. Institutional Mortgage Co., 240 So.2d 879, 882 (Fla. App. 1970) (finding that minimum contacts are "patently established" where a foreign corporation has qualified to do business in the forum state). In sum, WV, Inc. has neither an office, a bank account, nor employees in Vermont. It is not organized

under Vermont's laws, its principal place of business is elsewhere, and no supervisory decisions are made in Vermont. Even considering the contacts alleged by Viko

together, as the courts did in Hy Cite and Degesse, there are really no deliberate and continuous contacts
47

with Vermont aside from a nationally syndicated radio program that airs on weekends, sometimes at four in the morning. (Doc. 16 at 3). WV, Inc. does maintain an

interactive website, but since it does not in any way target Vermont residents specifically, it is no more present here than in any other forum. Given the ever

rising frequency with which even small businesses maintain interactive websites, giving significant weight to this contact would essentially eviscerate traditional principles of federalism and jurisdiction divided among the several states. Drawing all inferences in favor of Viko, these contacts may rise above those rejected as insufficient by the Supreme Court in Helicopteros, since Helicopteros involved "mere purchases," and here there is some level of solicitation. at 411. Helicopteros, 466 U.S.

But they are less significant than those

present in other "close cases" from this district, including Sollinger v. Nasco, 655 F. Supp. at 1388-1389 (finding general jurisdiction over defendant who targeted individual Vermont residents with direct mailings), and Metropolitan Life, 84 F.3d at 572-573 (finding minimum contacts in a "close case" where the
48

defendant had $4 million in sales to Vermont, registered to do business in Vermont, maintained relationships with dealers and "authorized" builders in Vermont, provided advertising and support to Vermont residents, and deliberately targeted Vermont firms as sales prospects). Accordingly, I find that WV, Inc. lacks the continuous and substantial contacts with the state of Vermont that would allow it to be sued here on a cause of action arising out of an automobile accident in Mozambique. It is true that at this early stage of the

litigation Viko need only make out a prima facie case of jurisdiction, but that means he "must plead facts which, if true, are sufficient in themselves to establish jurisdiction." Bellepointe, Inc., 975 F.

Supp. at 564 -565; Jazini v. Nissan Motor Co., Ltd., 148 F.3d 181, 184 (2d Cir. 1998). done. This Viko has not

While he has shown that WV, Inc. is not

completely absent from Vermont, the "more stringent" assessment of state contacts required for general jurisdiction implies that one can have some contact with a forum­even more than negligible contact­before being subject to the forum's courts on any matter
49

arising any where. Additionally, the Court finds it would likewise violate due process to assert personal jurisdiction over World Vision International, since even Viko concedes it has no Vermont contacts independent of those maintained by WV, Inc. Finally, without the Vermont contacts required by due process, there is no need to determine separately whether the exercise of general jurisdiction would be reasonable in this case. See Bechard, 810 F. Supp. at

585; Helicopteros, 466 U.S. at 418-419 (relying solely on lack of minimum contacts to reverse lower court's assertion of personal jurisdiction).

II. Jurisdictional Discovery is Not Warranted I also find that limited discovery on the jurisdictional issue would not be productive in this case. First, while Viko expressed his obvious

preference for discovery over dismissal in his Response to World Vision's Motion to Dismiss and at oral argument, he has not technically moved for leave to take jurisdictional discovery. As a result, this issue

has not been the subject of any pleadings before the
50

Court, and legal argument as to whether Viko is entitled to discovery and, if he is, to what extent discovery should be permitted, is virtually nonexistent.22 There is no precise standard in the Second Circuit to determine when a plaintiff is entitled to discovery on the issue of personal jurisdiction. In Jazini v.

Nissan Motor Co., Ltd., 148 F.3d 181, 186 (2d Cir. 1998), the court found that a district court did not err in denying discovery because the plaintiffs "did not establish a prima facie case that the district court had jurisdiction over" the defendant. However,

the Circuit has since suggested that district courts may be obligated to order jurisdictional discovery based on a lesser showing, in particular when the plaintiff fails to allege legally sufficient facts to establish jurisdiction, but nonetheless asserts specific, non-conclusory facts that, if further developed, could demonstrate substantial state contacts. See Texas Intern. Magnetics, Inc. v. BASF

22 In his Response in Opposition to World Vision's Motion to Dismiss, Viko noted only that, "In deciding a pretrial motion to dismiss for lack of personal jurisdiction a district court has considerable procedural leeway," and "it may permit discovery in aid of the motion." (Doc. 9 at 12).

51

Aktiengesellschaft , 2002) (Not Reported).

31 Fed. Appx. 738, 739

(2d Cir.

Other Circuits have said that

jurisdictional discovery is not appropriate unless "the plaintiff [has] at least a good faith belief that such discovery will enable it to show that the court has personal jurisdiction over the defendant." FC Inv.

Group LC v. IFX Markets, Ltd., 529 F.3d 1087, 1092 (D.C. Cir. 2008). Aside from Viko's conclusory assertion that WV, Inc. derives "substantial benefits from marketing and fundraising conducted in Vermont" (Doc. 9 at 8), he does allege specific facts upon which his theory of jurisdiction is based. But even if these facts require

a more forgiving standard, Viko has not alleged facts that, if further developed with greater detail, could in any realistic likelihood justify the assertion of general personal jurisdiction over WV, Inc. In other words, with the Vermont contacts alleged at this point, Viko has not made the "sufficient start" towards establishing jurisdiction that warrants the further costs and delay of jurisdictional discovery. Uebler v. Boss Media AB, 363 F. Supp. 2d 499 (E.D.N.Y. 2005) (internal citation omitted); Kiobel v. Royal
52

Dutch Petroleum Co., 2008 WL 591869, *10 (S.D.N.Y. 2008) (Not