McNeil v. Biaggi Productions, LLC et al

Filing 33

MEMORANDUM OPINION. Signed by District Judge M. Hannah Lauck on 6/16/2017. (jsmi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

CENTELL COLONZO MCNEIL,

Plaintiff,
V.

Civil Action No. 3:15cv751

BIAGGI PRODUCTIONS, LLC,
and

JUAN A. DAVILA,
Defendants.
MEMORANDUM OPINION

This matter comes before the Court on Defendants Biaggi Productions, LLC, and Juan A.

Davila's (collectively, the "Defendants") "Motion to Dismiss Pursuant to Fed. R. Civ. P.

12(b)(2)^^^ for Lack ofPersonal Jurisdiction" (the "Third Motion to Dismiss"). (ECF No. 29.)
Plaintiff Centell Colonzo McNeil has responded to the Third Motion to Dismiss, (ECF No. 31),
and the Defendants have replied, (ECF No. 32). The Court dispenses with oral argument

because the materialsbefore it adequately present the facts and legal contentions, and argument
would not aid the decisional process. The matter is ripe for disposition. The Court exercises

jurisdiction pursuant to 28 U.S.C. § 1332.^ For the reasons that follow, the Court will grant in
part the Third Motion to Dismiss. The Court will dismiss all but Count V without prejudice.

*"[A] party may assert the following defenses by motion:... lack ofpersonal
jurisdiction

" Fed. R, Civ. P. 12(b)(2).

^28 U.S.C. § 1332 confers subject matter jurisdiction when the parties are diverse and the
amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a).

1. Procedural and Factual Background
A.

Procedural Background

The parties' alacrity to oppose the other, coupled witha reluctance to assure compliance
with the Federal Rules of Civil Procedure, has hindered the prosecution of this case. After

removingthis case to federal court, the Defendants filed a "Motion to Dismiss Pursuantto

Federal Rule of Civil Procedure 12(b)(2) for Lack of Personal Jurisdiction" (the "First Motionto
Dismiss"). (ECFNo. 2.) Beforeopposing the First Motionto Dismiss, McNeil filed the "First

Amended Complaint."^ (ECF No. 4.) Because McNeil filed the First Amended Complaint
within 21 days after the Defendants filed the First Motion to Dismiss, the Court ruled that

Federal Rule of Civil Procedure 15(a)(l)(B)'^ permitted McNeil tofile the First Amended
Complaint as a matterof course. See McNeil v. BiaggiProds., LLC, No. 3:15cv751, 2016 WL
3227517, at *1 (E.D. Va. Feb. 9, 2016).

Prior to that ruling, however, and in spite of his right to file the First Amended Complaint
as a matter of course, McNeil filed an opposition to the First Motion to Dismiss. (ECF No. 5.)

^The First Amended Complaint alleges seven counts of defamation, five counts of
negligent defamation, and one count of unauthorized use of name and picture in trade. (First
Am. Compl. 119-85.) McNeil seeks$2,000,000 in compensatory damages, $12,000,000 in
exemplaryand punitive damages, and costs and pre and postjudgment interest. {Id. at 24.)

^Federal Rule of Civil Procedure 15(a)(1)(B) provides:
(a) Amendments Before Trial.

(1)Amending as a Matter ofCourse, A party may amend its pleading
once as a matter of course within:

(B) if the pleading is one to which a responsive pleading is required, 21
days after service of a responsive pleading or 21 days after service of a
motion under Rule 12(b), (e), or (f), whichever is earlier.
Fed. R. Civ. P. 15(a)(1)(B).

The Defendants then filed a Motion to Strike McNeil's opposition as untimely, (ECF No. 6), and

McNeil sought an extension of time, (ECF No 8). The parties proceeded to respond to each
other's motions unnecessarily, and the Court ultimately denied all motionsthen pendingas moot.
McNeil, 2016 WL 3227517, at *1. In order to give the parties what the Court intended to amount

to a fresh start, the Court deemed the Amended Complaint filed as of the date of its order. Id.
("The Court DEEMS FILED the Amended Complaint as of today

")

Despite the Court's attempt to functionally resetthe litigation, the parties again cluttered
the docket with several filings. Twenty-one days after the Court deemed the First Amended

Complaint filed, the Defendants filed, untimely, the Second Motion to Dismiss.^ (ECF No. 15.)
McNeil subsequently filed the Motion for Entryof Defaultand the Motionto Strike,arguing that
the Defendants did not timely file their responsive pleading to the Amended Complaint. (ECF

Nos. 17, 18.) The Defendants then filed the Motion for Leave to File, seeking an extension of
time to file their responsive pleading if the Court deemed the March 1 filing untimely. (ECF
No. 23.)

The Court found that the Defendants demonstrated excusable neglect for extending the

time to file responsive pleadings and grantedthe Motion for Leave to File. (ECF No. 28.) The
Court denied as moot the Second Motion to Dismiss, the Motion for Entry of Default, and, the

Motion to Strike.^ The Defendants then filed the Third Motion to Dismiss, which the Courtnow

^The Defendants did nothave 21 days to file a response to the First Amended Complaint.
Under Federal Rule of Civil Procedure 15(a)(3), the Defendants had 14 days.

^The Court also admonished the parties that, going forward, they must adhere to all
applicable rules, including the Federal Rules of Civil Procedure, the Local Civil Rules for the
United States District Court for the Eastern District of Virginia, and any orders of this Court.
The Court explained that any failure to adhere to the rules or orders governing the parties'
conduct could result in the imposition of sanctions.

considers. The Third Motion to Dismiss seeks to dismiss the First Amended Complaint and

argues that the Court lacks personal jurisdiction over the Defendants.
B.

Factual Background^

This case arises out of purported Internet communications and third-party conversations

by the Defendants^ between December 2014 and November 2015. McNeil alleges that, in
December2014, he sent a messageto Davila via his cellular phone under the belief that the
phone number belonged to someoneelse. Various communications ensued, McNeil asserts that
the Defendants then defamed him by publishing various posts or comments online. These

actions involved two "Tweets,"^ two Facebook comments,'® and a blog post.'' McNeil also

^McNeil bears the burden of proving grounds for personal jurisdiction. Careflrst ofMd,
Inc. V, Careflrst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003). Where, as here,
neither party has sought an evidentiary hearing (which requires a showing of personal
jurisdiction by a preponderance of the evidence), the Court determines only whether McNeil has
made a prima facie showing of personal jurisdiction. Id. In evaluating whether a plaintiff has
made a prima facie demonstration of personaljurisdiction, the Court "must construe all relevant
pleading allegations in the light most favorable to the plaintiff, assume credibility, and draw the
most favorable inferences for the existence ofjurisdiction." Brooks v. Motsenbocker Advanced
Devs., Inc., 242 F. App'x 889, 890 (4th Cir. 2007), This Court construes the allegations in the
First Amended Complaint in accordance with these principles,

^McNeil alleges that Davila "is a resident of Fort Lauderdale, Florida," who "is also
known as Juan Melecio, Juan Melecio Davila, John Melecio Davila, John Melecio, Antonio
Biaggi, and Antonio Biaggi Davila." (First Am. Compl. ^3.) McNeil alleges that Davila owns
Biaggi Productions, LLC, a "limited liability corporation domiciled in Fort Lauderdale, Florida,"
that "produces and distributes homosexual pornographic content on the website
www,biagiivideos,com," {Id. 2-3.)

^Registered users ofthe social media website "Twitter" may publish Tweets—or posts
limited to 140 characters. Biaggi Productions, LLC operates a Twitter account under the name
Antonio Biaggi xxx and the handle @Xxxbiaggi.
Biaggi Productions, LLC operates a Facebook account under the name Antonio Biaggi
Davila, and Davila operates a personal Facebook account under the name John Melecio Davila.

" The Defendants own and operate a blog at http://antoniobiagixxx.blogspot.com.

contends that the Defendants published statements to the Richmond Police Department and the
Federal Bureau of Investigation that accused McNeil of threateningto kill Davila.

The Defendants published the allegedly defamatory statements afterMcNeil accidentally
called Davilausing the FaceTime feature. McNeil attempted to apologize to Davila, including
duringthe FaceTime call and via text message and telephone call. Davila made several phone
calls to McNeil from a blocked phone number, and McNeil later received racist and derogatory
emails from an unknown account that he believed to have been operated by Davila. The owner

of the email account, Joshua Boyle, contactedMcNeil and apologized for the emails. Boyle
explainedthat he and Davila had been friends and that Davila hacked his email account.
Davila posted the first Tweet on December29, 2014, at 8:46 a.m. {Id. ^ 45.) That Tweet
stated: "Este cabron de Hopewell, Virginia me llama FaceTimeque m va a matar . La policia

Esta enmy casa mas info luego,"^^ and included a photo of McNeil's upper body and face, as
well as his personal email address. {Id.

46,49.)

The 8:46 a.m. Tweetgenerated twenty reply

Tweets and five Retweets'^ from other Twitter users. {Id. H53.) One reply asked in Spanish
about the veracity of Davila's Tweet, to which Davila responded affirmatively at 11:31 a.m.

The Defendants posted the following comment on Biaggi Productions, LLC's Facebook
account on December 29, 2014, at 3:55 p.m.:

Jason Ander from NY and Centell Mcneil (sic) police from Virginia , (sic) he
should be a shame (sic) of him self (sic) for doing this sh[**], (sic) where the
people involved in thisnUgly and F Stupid (sic) move to FaceTime me I don't
how (sic) they got my info, but (sic) this morning they FaceTime more than 25

McNeil alleges that Davila's Tweet translates to: "this [b******]
****]
[similar derogatory term] from Hopewell Virginia FaceTime calls me that he is going to kill me.
The police are in my house more info later." (First Am. Compl. f 47 (alterations in original).)
A user "Retweets" a Tweet when he or she elects to publish the original Tweet in fiill
on his or her Twitter profile. A Retweet shows the original Tweet in frill, including attribution to
the person who initially published the Tweet.

times to show me guns on Camera , (sic) the police already has a (sic)
investigation...

{Id. K57 (alterations in original).) The Facebook post included the same photo and email address
as the first Tweet. The Facebookpost generated 18 comments from other Facebookusers.

Davilathen posted the following statement to his Facebook timeline at an imspecified time on
December 29,2014:

This person call (sic) me saying he is going to kill me, if you guys get FaceTime
call (sic) from this person report him . it (sic) comes in my computer not in (sic)
my phone . there (sic) no way to Block him for some reason ,
[e-mail] TTie Police just left my house I call (sic) the police in
Virginia, he lives here 3919 Grovewood Rd Hopewell, Virginia and his number
its (sic) 804 7283919

{Id. ^ 66 (alterations in original).) On or about that same day, the Defendants "published
statements to the Richmond Police Department and to the Federal Bureau of Investigation (FBI)
that, in haec verba, [McNeil] threatened to kill Defendant Davila." {Id.

92.)

On January 2, 2015, Davila made the following statement on a blogpost titled "Dead
threats from a Police of Richmond, Virginia":

Centell Mc Neil Police from Richmond Virginia you and your dead treats will not
stop me from working and doing my thing you, I hope your soul if you have its
Forgiving by god . But now you have to respond to the lA, yes like you can see
the lA that are investigating you right now.

{Id. ini 75-76 (grammar, spacing, and spelling errors in original).) The blogpost included the
same photo and email address featured on the Tweet and Facebook post and also displayed a
second photo of McNeil's face and shoulders.

Finally, on November 22,2015, the Defendants published the following Tweet on
Twitter: "Last year a Police from Richmond Virginia harassed me and hack (sic) into my

computer for an entire month." {Id. H100 (alteration in original).) The November 22 Tweet
generated seven comments, five of which came from the Defendants.

As a result of the Defendants' conduct, McNeil alleges to have suffered injury to his

personal reputation and his professional reputation. McNeil asserts that his employerplaced him
on administrative leave and stripped him of overtime pay. McNeill contends that he "has
suffered and will suffer physical, mental, economic, and emotional injuries." {Id. H118.)
The First Amended Complaint brings the following counts:
"COUNT 1 - Defamation - The December 29,2014 Twitter Post"
("Count I")

"COUNT 2 - Defamation - The Facebook Post" ("Count 11")

"COUNT 3 - Defamation - The [Facebook] Timeline Post" ("Count III")
"COUNT 4 - Defamation - The Blog Post" ("Count IV")
"COUNT 5 - Defamation - Statements to Richmond Police Department"
("Count V")
"COUNT 6 - Defamation - Statements to the FBI" ("Count VI")
"COUNT 7 - Defamation - The November 22,2015 Twitter Post"
("Count VII")

"COUNT 8 - Negligent Defamation - The December 29,2014 Twitter Post"
("Count VIH")

"COUNT 9- Negligent Defamation - The Facebook Post" ("Count IXCA)")"
"COUNT 9 - Negligent Defamation - The [Facebook] Timeline Post"
("Count IX(B)")
"COUNT 10 - Negligent Defamation - The Blog Post" ("Count X")

"COUNT 11 - Negligent Defamation - The November 22,2015 Twitter Post"
("Count XI")
"COUNT 12 - Unauthorized Use of Name and Picture in Trade"

("Count XII")

McNeil alleges "COUNT 9" twice. Rather than renumber all counts, the Court will
refer to them as Count IX(A) and Count IX(B).

II. Analysis: Third Motion to Dismiss

The Defendants seek to dismiss the First Amended Complaint for lack of personal

jurisdiction. The Defendants contend thatthe Court cannot assert personal jurisdiction over them
because their contacts with Virginiado not satisfythe requirements of the Due Process Clause.

In large part, the Court agrees. The Defendants' contacts withVirginia do not support a finding

ofpersonal jurisdiction on twelve ofMcNeil's thirteen causes ofaction.'^ For the reasons that
follow, the Court will grant the Third Motionto Dismiss in part. The Court will dismiss Counts
I, II, III, IV, VI, VII, VIII, IX(A), IX(B), X, XI, and XII withoutprejudice. The Court will order
briefing on how this case should proceed with only Count V remaining.
A.

The Court Will Grant the Third Motion to Dismiss in Part

The Court will grant the Third Motion to Dismiss in part because McNeil cannotmake a

primafacie showing of personal jurisdiction on twelve of thirteen claims. McNeil alleges that
this Court has personaljurisdiction over the Defendants because, by disseminating purportedly
defamatory statements online and communicating directly with third parties, the Defendants
purposefully availed themselves of activities in Virginia. The Court finds that such contacts.

Much of the parties' briefing addresses whether the Defendants' contacts satisfy
Virginia's long-arm statute. Va. Code § 8.01-328.1. As the Court explains below, "Virginia's
long-arm statute extends personal jurisdiction to the extent permitted by the Due Process
Clause." Young v. New Haven Advocate, 315 F.3d 256, 261 (4th Cir. 2002). Becausethe Due
Process Clause necessarily enforces the limits of Virginia's long-arm statute, none of the
Defendants' arguments that pertain to Virginia's long-arm statute alter the findings of this
Memorandum Opinion. The Court will directly address the constitutional componentof the
personal jurisdiction analysis.

The Defendants take issue with McNeil's attempt to assess their jurisdictional contacts
together. Without citation, the Defendants state that "[j]urisdictional analysis requires a review
for each defendant independently." (Defs.' Reply 2, ECF No. 32.) The First Amended
Complaint, however, alleges that Davila, as owner, acted on behalf of Biaggi Productions.
Moreover, most allegations concern actions taken by "the Defendants." Accordingly, where
appropriate, the Court will group the Defendants when evaluatingtheir contacts with the forum
state.

even construed in the Hght most favorable to McNeil, suffice to establish specific personal

jurisdiction over only one ofMcNeil's thirteen claims.'^
1.

McNeil Bears the Burden of Proving Personal Jurisdiction

"Whenpersonal jurisdiction is properly challenged underRule 12(b)(2), thejurisdictional
question is to be resolved by the judge, with the burden on the plaintiff ultimatelyto prove

grounds forjurisdictionby a preponderance of the evidence." Carefirst ofMd., Inc., 334 F.3d
at 396. When a district court considers a challenge to personal jurisdiction without conducting

an evidentiary hearing, the plaintiff need only make a prima facie showing of personal

jurisdiction, rather than showjurisdiction by a preponderance of the evidence. Id.; Combs v.
Bakker, 886 F.2d 673, 676 (4th Cir. 1989). "The [C]ourt, in deciding whether a plaintiff has met
this burden, must construe all relevant pleading allegations in the light most favorable to the

plaintiff, assume credibility, and draw the most favorable inferencesfor the existence of
jurisdiction." Brooks, 242 F. App'x at 890. "ff a plaintiff makes the requisite showing, the
defendant then bears the burden of presenting a 'compelling case,' that, for other reasons, the
exercise ofjurisdiction would be so unfair as to violate due process." Reynolds Foil, Inc. v. Pai,
No. 3:09cv657,2010 WL 1225620, at *1 (E.D. Va. Mar. 25, 2010) (quoting Burger King v.

Rudzewicz, 471 U.S. 462, 477-78 (1985)). "For purposes of the motion to dismiss, the

reviewing court may presume that any uncontradicted evidence submitted by either party is
true." Id

2.

Personal Jurisdiction Standard

Federal courts exercise personal jurisdiction in the manner provided by state law. New
Wellington Fin. Corp. v. Flagship Resort Dev. Corp., 416 F.3d 290, 294 (4th Cir. 2005).

McNeil does not argue that the Defendants are susceptible to general jurisdiction in
Virginia. See infra p. 11 n.l8. Accordingly, the Court will not address that jurisdictional basis.

Therefore, a district court must first decide whether Virginia state law permits the court to

exercise personal jurisdiction overthe defendant, and second, whether the exercise of such
jurisdiction comports with the due process requirements of the Fourteenth Amendment. Id.;
ChristianSci. Bd. ofDirs. ofthe First Church ofChrist, Scientist v. Nolan, 259 F.3d 209,215
(4th Cir. 2001); ESAB Group, Inc. v. Centricut, Inc., 126 F.3d 617, 622 (4th Cir. 1997).

"Because Virginia's long-arm statute extends personal jurisdiction to the extentpermitted by the
Due Process Clause, 'the statutory inquiry necessarily merges with the constitutional inquiry, and
the two inquiries essentially become one.'" Young v. New Haven Advocate, 315 F.3d 256,261
(4th Cir. 2002) (quoting Stover v. O'ConnellAssocs., Inc., 84 F.3d 132, 135-36 (4th Cir. 1996))
(internal citationomitted). Accordingly, the inquiry becomes whetherthe defendants maintain
sufficient minimum contacts with the forum state so as not to offend '"traditional notions of fair

play and substantial justice.'" Int'l Shoe Co. v. Washington, 326 U.S. 310,316 (1945) (quoting
Milliken v. Meyer, 311 U.S. 457,463 (1940)).

"The standard for determining the existence of personal jurisdiction over a nonresident

defendantvaries, dependingon whether the defendant's contacts with the forum state also
provide the basis for the suit." Carefirst ofMd, Inc., 334 F.3d at 397. "If the defendant's
contacts with the State are also the basis for the suit, those contacts may establish specific

jurisdiction

[I]f the defendant's contacts with the State are not also the basis for suit, then

jurisdiction over the defendant must arise from the defendant's general, more persistent, but
unrelated contacts with the State." ALSScan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d

10

707, 712 (4th Cir. 2002) (citing Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U .S.

408, 414 &nn.8-9 (1984)), McNeil asserts only specific personal jurisdiction.'^
The United States Court of Appeals for the Fourth Circuit has adopted a three-part test to

determine whetherspecific jurisdictionexists. Reynolds Foil, Inc., 2010 WL 1225620, at *2.
The Court must consider: "(1) the extent to which the defendant purposefully avail[ed] itself of

the privilege of conducting activities in the State; (2) whether the plaintiffs' claims arise out of
those activities directed at the State; and[,] (3) whether the exercise of personaljurisdiction
would be constitutionally reasonable." ALSScan, Inc., 293 F.3d at 712 (alterationin original)
(internal citations omitted).

With respect to the first factor, "no clear formula [exists] for determining what constitutes
'purposeful availment.'" Reynolds Foil, Inc., 2010 WL 1225620, at *2. The Court, however,
may consider whether the defendantmaintains offices or agents in the forum state; whether the
defendantowns property in the forum state; whether the defendant reached into the forum state
to solicit or initiate business; whether the defendant deliberately engaged in significant or long-

term business activities in the forum state; whether the parties contractually agreed that the law

of the forum state would govern disputes; whether the defendant made in-person contact with the
resident of the forum in the forum state regarding the business relationship; the nature, quality,
and extent of the parties' communications about the business transactions; and, whether the
performance of contractual duties was to occur within the forum. Consulting Eng'rs Corp. v.

Geometric Ltd., 561 F.3d 273,278 (4th Cir. 2009) (internal citations omitted). "If, and only if

Appropriately, McNeil does not seek to establish general personal jurisdiction.
General jurisdiction exists only when a defendant's "affiliations with the State are so 'continuous
and systematic' as to render [it] essentially at home in the forum State.'" Daimler AG v. Bauman,
134 S. Ct. 746, 760 (2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S.
915, 919 (2011)) (emphasis added).
11

... the plaintiff has satisfiedthis first prong of the test for specificjurisdiction need [the Court]
move on to a consideration of prongs two and three." Id.

"The second prong of the test for specificjurisdiction... requires that the defendant's
contacts with the forum state form the basis of the suit." Id. at 278-79 (citing Burger King,

471 U.S. at 472; Helicopteros Nacionales de Columbia, S.A., 466 U.S. at 414). The third prong
of the specificjurisdiction test "permits a court to consider additional factors to ensure the
appropriateness of the forum once it has determined that a defendant has purposefully availed
itself of the privilege of doing business there." Id. at 279. Specifically,the court may consider:
(1) the burden on the defendant of litigating in the forum; (2) the interest of the forum state in
adjudicating the dispute; (3) the plaintiffs interest in obtaining convenient and effective relief;
(4) the shared interest of the states in obtaining efficient resolution of disputes; and, (5) the
interests of the states in furthering substantive social policies. Id. (citing Burger King, 471 U.S.
at 477).
3.

McNeil Cannot Establish Specific Jurisdiction for
Twelve of Thirteen Counts

McNeil's First Amended Complaint asserts thirteen counts. Ten ofthose counts^^ allege
defamation arising out of the Defendants' social media activity, one count alleges defamation

arising out of statements made to the

one count claims defamation arising out of

statements made to the Richmond Police Department,^^and one count avers unauthorized use of
name and picture in trade.^^ McNeil generally contends that the Court has personal jurisdiction
Counts I, II, III, IV, VII, VIII, IX(A), IX(B), X, and XL
Count VI.
Count V.
Count XII.

12

over the Defendants because the Defendants' conduct caused McNeil tortious injury in Virginia.

McNeil invokes this theory of jurisdiction underthe so-called "effects" test, whichgives the

Court personal jurisdiction overa defendant if he or she intentionally directed activity in the
forum state—here, Virginia—^that caused harm to the plaintiff.

The Supreme Courthas long held that the purposeful availment prong of the personal

jurisdiction analysis can be metif a defendant's "intentional conduct [inthe foreign state was]
calculated to cause injury to [theplaintiff] in [the forum state]." Calder v. Jones, 465 U.S. 783,

791 (1984) ("Jurisdiction overpetitioners is therefore proper in California based on the 'effects'
of then: Florida conduct in California."). Calder, however, does not vest jurisdiction in a state

merelybecause it serves as the locus of the plaintiffs injury. See Walden v. Fiore, 134 S. Ct.

1115,1125 (2014) ("[M]ere injury to a forum resident is not a sufficient connection to the
forum.").The "proper question is not wherethe plaintiffexperienced a particular injuryor
effect but whether the defendant's conduct connects him to the forum in a meaningful way'' Id.

(emphasis added); see also ESAB Group Inc., 126 F.3d at 626 ("Although the place that the
plaintiff feels the alleged injury is plainly relevant to the inquiry, it must ultimately be

accompanied by the defendant's own contacts withthe state if jurisdiction overthe defendant is
to be upheld."). In the Internet context, the Fourth Circuit has framed the effects test as follows:

In Walden, the Supreme Court emphasized that the specific-jurisdiction inquiry focuses
"on the relationship among the defendant, the forum, and the litigation." 134 S. Ct. at 1121.
There, a law enforcement agent, who seized $97,000 in cash after a drug dog alerted on it in
Atlanta, Georgia, lacked the "minimum contacts" with Nevada necessaryto support the exercise
of jurisdiction over him. Id. at 1126. Thus, even presuming harm from a delayed return of the
money, a Nevada court could not order the law enforcement agent to release the cash even when
the owners presented evidence that they were professional gamblers travellingto Las Vegas,
Nevada, with a legitimately earned "bmik." Id. The court held that no part of the law
enforcement agent's conduct occurred in Nevada, that he formed no jurisdictionally relevant
contacts there, and that the mere injury to a forum resident was not a sufficient connectionto the
forum. Id. at 1121-26 (citations omitted).
13

"a Statemay, consistent with due process, exercise judicialpowerover a personoutside of the
State when that person (1) directs electronicactivity into the State, (2) with the manifested intent

of engaging in business or otherinteractions withinthe State, and (3) that activity creates, in a
person within the State, a potential cause of actioncognizable in the State's courts." ALS Scan,
Inc., 293 F.3dat714.

Because McNeil asserts only specific personaljurisdiction, the Court must have

jurisdictionover each claim it decides. See Gatekeeper Inc. v. Stratech Sys., Ltd., 718 F. Supp.
2d 664, 667-68 (E.D. Va. 2010) ("Althoughthe Fourth Circuit has yet to address this issue, the

three courts of appeal that have done so have sensibly concluded that specific jurisdiction

requires a claim-specific analysis, as a nonresident defendant lacking continuous and systematic
contacts with the forum state could not 'reasonably anticipate being haled into court' on claims
unrelated to the defendant's forum state contacts, and thus haling them into court on those

unrelated claims would violate their due process rights."). Accordingly, the Court's inquiry
proceeds on a claim-by-claim basis. McNeil fails to make a prima facie showingof specific
personal jurisdiction as it pertains to twelve of his thirteen counts.
a.

McNeil Cannot Establish Specific Jurisdiction for
His Claims Arising Out of Defendants' Online Activity

McNeil cannot satisfy the effects test to establish this Court's jurisdiction over his claims
that arise out ofthe Defendants' online activity

The facts giving rise to eleven of McNeil's

thirteen claims^^ involve online posts that were notexpressly directed at Virginia, butto an
undefined audience of Internet users around the world. While the Defendants featured McNeil

as the subject of these posts and even referenced Virginia in some of them, nothing indicates that
The following counts arise out of the Defendants' online activity: Counts I, II, III, IV,
VII, VIII, IX(A), IX(B), X, XI, and XII, The Court addresses them together.
Counts I, II, III, IV, VII, VIII, IX(A), IX(B), X, XI, and XIL
14

the Defendants specifically directed the posts at Virginia or to Virginia social media users?^
Without more, the Court cannot find purposeful availmenton those eleven claims. See
FireClean, LLC v. Tuohy, No. I:16cv0294, 2016 WL 3952093, at *7 (E.D. Va. July 21, 2016)

("The mere fact that Tuohy referenced a Virginiacompany, its product, and its owners without
mentioning Virginiadoes not demonstrate an intent to target Virginia, as even overt references to
a State may be jurisdictionallyinsufficient if the focus of the article is elsewhere."); see also

Young, 315 F.3d at 263 ("The newspapers must, throughthe Internet postings, manifest an intent
to target and focus on Virginia readers."). Accordingly, McNeil cannot establish this Court's

jurisdiction over Coxmts I, II, III, IV, VII, VIII, IX(A), IX(B), X, XI, and XII. The Courtwill
dismiss those claims without prejudice.

b.

Although McNeil Can Establish Specific Jurisdiction for
Count V, the Court Cannot Extend Its Jurisdictional Reach to
McNeiFs Other Claims, Including Count VI

In an attempt to distinguish FireClean and other cases cited by the Defendants, McNeil

points out that "the Defendants deliberately communicated via telephone and email witha third
party located in Virginia: the Richmond Virginia Police Department." (PL's Br. Opp'n 8, ECF

No. 31.) That contact supports a finding of personal jurisdiction on Count V, which alleges

To the extent McNeil alleges that the Defendants made contact with Virginia by
visiting McNeil's social media accounts (in Virginia), those contacts do not suffice to establish
purposeful contacts. See Careflrst ofMd., Inc., 334 F.3d at 393 ("[W]e have characterized as 'de
minimis^ the level of contact created by the connection between an out-of-state defendant and a
web server located within the forum.").

Moreover, although McNeil alleges that other social media users interacted with the
Defendants' posts, McNeil does not contend, in the First Amended Complaint or in briefing, that
those users interacted with the postsfrom Virginia. In fact, McNeil does not allege that any
Virginia residents viewed the Defendants' statements online.

15

defamation stemming from those precise communications.^^ Itdoes not, however, provide the
Court with a basis to extend its jurisdictionalreach to other, unrelated claims. See Gatekeeper

Inc., 718 F. Supp. 2d at 668-69 ("[S]pecific jurisdictionis claim-specific and there can be no

ancillary or supplemental theory of specific jurisdiction, as application of such a theory would
unconstitutionally reach claims that a nonresident defendant would not reasonably expect to

resultin a courtaction in the forum state."); see also ALSScan, Inc., 293 F.3d at 712 (explaining

that contacts establishing specific personal jurisdiction must"ariseout of the cause of action).
Accordingly, the Defendants' statements to the Richmond Police Department support a finding
of personal jurisdiction on Count V.

That said, despite the fact that Count VI alleges that the Defendants published statements
to the FBI in a manner similar to the conduct asserted regarding the Richmond Police

Department in Count V, McNeil cannot establish specific jurisdictionon CountVI. McNeil does
not allege—^in the First Amended Complaint or in briefing—^how the Defendants published
statements to the FBI. Critically, McNeil does not indicate whethersuch publishing involved
meaningful contacts with Virginia. Thus, the allegations about the Defendants' statements to the
FBI in Count VI fail to assert contacts sufficient to give this Court jurisdiction over that claim.
The Court will dismiss Count VI without prejudice.

Indeed, a defamation claim involving statements made by the Defendants directly to a
Virginia police department demonstrates a "manifested intent of engaging in... interactions
within the State." ALS Scan, Inc., 293 F.3d at 714.

16

in. Conclusion

For the foregoing reasons, the Court will grantthe ThirdMotion to Dismiss in part. The
Covirt will dismiss Counts I, II, III, IV, VI, VII, VIII, IX(A), IX(B), X, XI, and XII without
prejudice.

An appropriate Order shall issue.

M. Hi

iiEz

United States Ui tHcOudge

Richmond, Virginia

17