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ORDER – 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

GEN ADS, LLC, et al.,

Plaintiffs,

v.

ANDREW BREITBART, et al.

Defendants.

CASE NO. C06-137JLR

ORDER

I. INTRODUCTION

This matter comes before the court on a motion to dismiss from Defendants

Andrew Brietbart, Susannah Breitbart, and their marital community (collectively, “the

Moving Defendants”) for lack of personal jurisdiction (Dkt. # 14). The court has

considered the parties’ briefing and accompanying declarations and finds the matter

appropriate for disposition on the papers and without oral argument. For the reasons

stated below, the court GRANTS in part and DENIES in part the motion to dismiss.

II. BACKGROUND

 California resident Andrew Breitbart is a principal of Breitbart.com, LLC

(“Breitbart.com,” f/k/a Breitbart.com, Inc.), which owns and operates a website

(www.breitbart.com) that attracts significant Internet traffic from the popular online news

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ORDER – 2

source, “The Drudge Report.” Seeing great revenue potential based on the number of

visitors to the website, in September 2005, three parties to the present litigation

contracted to form an internet advertising firm, Plaintiff Gen Ads, LLC (“Gen Ads”). 

The three signatories to the contract (“the LLC Agreement”) included: Plaintiffs Cartmell

Holdings, LLC (“Cartmell”) and Hillstrom Equities, LLC (“Hillstrom”), and Defendant

Breitbart Holdings, Inc. (“Breitbart Holdings”). In early November 2005, the newly

formed Gen Ads entered into an exclusive advertising services agreement (“Advertising

Agreement”) with Breitbart.com, whereby Gen Ads agreed to arrange for all advertising

on the website. Both the LLC Agreement and the Advertising Agreement contain forum

selection clauses designating Washington as the proper forum for any dispute arising out

of the respective agreements. 

Mr. Breitbart signed the LLC Agreement on behalf of Breitbart Holdings and the

Advertising Agreement on behalf of Breitbart.com. Today, Mr. Breitbart is the CEO and

President of Breitbart Holdings. Defs.’ Mot at 5. At the time he signed the LLC

Agreement, however, Breitbart Holdings had not incorporated under such name; rather

Mr. Breitbart was affiliated with Breitbart.com, Inc. In any event, some months after Gen

Ads formed, Mr. Breitbart filed a certificate of amendment changing the name of

Breitbart.com, Inc. to Breitbart Holdings. Plaintiffs characterize Mr. Breitbart’s signature

on the LLC Agreement as an act on behalf of a non-existent entity (thus, triggering

personally liability), while the Moving Defendants consider Breitbart Holdings to have

undergone nothing more than an innocuous name change. 

Sometime during negotiation and execution of the LLC Agreement, Breitbart.com

entered into an agreement with third-party news source, Reuters, to post links to Reuters’

stories from the Breitbart.com website. According to Plaintiffs, Mr. Breitbart entered

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ORDER – 3

into negotiations with Reuters to generate this “advertising” revenue at the same time he

was arranging for Gen Ads’ right to exclusive advertising. 

Gen Ads, Cartmell, and Hillstrom filed suit against Breitbart.com, Breitbart

Holdings, and Mr. and Mrs. Breitbart and their marital community. As to Mr. Breitbart,

Plaintiffs allege that he violated the Advertising Agreement, breached his fiduciary duty,

and committed fraud. Plaintiffs also claim that Mr. Breitbart has used Gen Ads’

copyrighted code in placing advertisements on the Breitbart.com website. Plaintiffs

contend that Mr. Breitbart engaged in such acts for the benefit of his marital community,

and thereby name Mr. and Mrs. Breitbart and their marital community as Defendants in

this action. The Moving Defendants now seek dismissal of the action against them for

lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2) (“Rule 12(b)(2)”). The

non-Moving Defendants, Breitbart.com and Breitbart Holdings, do not contest personal

jurisdiction for the purposes of this lawsuit. 

III. DISCUSSION 

When a defendant moves to dismiss a complaint for lack of personal jurisdiction,

the plaintiff must make a prima facie showing of personal jurisdiction to survive the

motion. Harris Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122,

1128-29 (9th Cir. 2003). The plaintiff must provide evidence that, if believed, would

support the court’s exercise of jurisdiction over the defendant. Id. at 1129. The court

need not accept the plaintiff’s bare allegations if the defendant controverts them with

evidence. See AT&T Co. v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir.

1996). If both parties provide evidence supporting different versions of a fact, however,

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1

A preponderance of evidence standard applies where the court holds an evidentiary

hearing to address personal jurisdiction. Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d

1280, 1284-85 (9th Cir. 1977). Neither Plaintiffs nor the Moving Defendants have requested an

evidentiary hearing.

ORDER – 4

the court must resolve competing inferences in the plaintiff’s favor. Harris Rutsky, 328

F.3d at 1129.1

Where no applicable federal statute addresses the issue, a court’s personal

jurisdiction analysis begins with the “long-arm” statute of the state in which the court sits. 

Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co., 284 F.3d 1114, 1123 (9th

Cir. 2002). Washington’s long-arm statute extends the court’s personal jurisdiction to the

broadest reach that the United States Constitution permits. Shute v. Carnival Cruise

Lines, 783 P.2d 78, 82 (Wash. 1989). Therefore, this court determines whether

exercising jurisdiction over the Moving Defendants comports with federal due process. 

Glencore Grain, 284 F.3d at 1123. Federal due process requires that nonresident

defendants have sufficient minimum contacts with the forum state such that the exercise

of jurisdiction will not offend “traditional notions of fair play and substantial justice.” 

Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). 

A court can exercise its power over a non-resident defendant (absent the

defendant’s consent) only if it has specific or general jurisdiction. Bancroft & Masters,

Inc. v. Augusta Nat’l, Inc., 223 F.3d 1082, 1086 (9th Cir. 2000). Where a defendant has

“substantial” or “continuous and systematic” contacts with the forum state, it is subject to

general jurisdiction, and can be haled into court on any action, even one unrelated to its

contacts. Id. If a defendant is not subject to general jurisdiction, it may be subject to

specific jurisdiction if the action upon which it is sued arises from its contacts within the

forum state. Id.

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2

In this case, California law governs the question of whether the marital community is

bound by the business negotiations and contracts executed by one spouse. See G.W. Equipment

Leasing, Inc. v. Mt. McKinley Fence Co., 982 P.2d 114, 117-118 (Wash. App. 1999) (applying

Arizona law to determine whether the marital community would be bound by an Arizona spouse’s

guaranty agreement).

ORDER – 5

The Ninth Circuit applies a three-part test to determine specific jurisdiction. 

Specific jurisdiction exists if (1) the defendant has performed some act or consummated

some transaction within the forum or otherwise purposefully availed himself of the

privileges of conducting activities in the forum, (2) the claim arises out of or results from

the defendant's forum-related activities, and (3) the exercise of jurisdiction is reasonable. 

Id. at 1086. If the plaintiff meets his burden on the first two parts of the test, the burden

shifts to the defendant to satisfy the third part by presenting a “compelling case” that the

exercise of jurisdiction is unreasonable. Schwarzenegger v. Fred Martin Motor Co., 374

F.3d 797, 802 (9th Cir. 2002) (citation omitted).

A. Jurisdiction Over the Marital Community

At the outset, the court notes that although community property can be held liable

for an obligation incurred by one spouse for the benefit of the community, the marital

community is not a separate legal entity from the spouses. Cf Bortle v. Osborne, 285 P.

425, 427 (Wash. 1930) (“[W]e have never held that a partnership or a marital community

is a legal person separate and apart from the members composing the partnership or

community.”). Under California law,2

 jurisdiction over one spouse binds the community

assets. Cal. Fam. Code § 910 (“community estate is liable for debt incurred by either

spouse . . . regardless of whether one or both spouses are parties . . . to a judgment for the

debt.”). Thus, it is unnecessary to discuss personal jurisdiction as it relates to the marital

community; rather, the court assesses each spouse’s contacts with the forum state. 

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ORDER – 6

B. Specific Jurisdiction Over Andrew Breitbart

Plaintiffs allege that Mr. Breitbart is a party to the contract, subject to the forumselection clause, because he acted in his individual capacity by negotiating and signing a

contract on behalf of a non-existent corporate entity (Breitbart Holdings, prior to

incorporation). Plaintiffs also allege that Mr. Breitbart breached his fiduciary duty to

Gen Ads and made false representations in contract negotiations when, at the same time

he negotiated with them, he held discussions with Reuters for advertising on the

Breitbart.com website. The Moving Defendants contend that, although Mr. Breitbart

signed the contracts on behalf of the two companies that share his name, he is not subject

to this court’s jurisdiction because he is not a party to the contracts and because he

conducted his business inside and from California, not Washington. 

Plaintiffs have succeeded in making out a prima facie case of specific jurisdiction

over Mr. Breitbart. As to the first prong, the court is persuaded that Mr. Breitbart’s

conduct was such that he should have reasonably anticipated being haled into a

Washington court. Mr. Breitbart personally negotiated and signed a contract with a

Washington company (Cartmell) to form another Washington company (Gen Ads),

disputes over which the contracting parties agreed would be governed by Washington law

and litigated before a Washington tribunal. See Burger King v. Rudzewicz, 471 U.S.

462, 472 (1985) (choice-of-law clause is a factor to consider when making jurisdictional

determinations); Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1290-92 (7th

Cir. 1989) (forum-selection clause presumes a party’s consent to personal jurisdiction). 

Even if the court assumes (for now) that Mr. Breitbart is not a party to the

contract, but that he acted simply as an agent of Breitbart Holdings or Breitbart.com, the

court finds sufficient minimum contacts. The Moving Defendants are correct that

jurisdiction over a corporation does not necessarily mean that the court has power over

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ORDER – 7

the entity’s nonresident officers, directors, agents or employees acting in their official

capacities. Davis v. Metro Prods., Inc., 885 F.2d 515, 520 (9th Cir. 1989) (discussing

generally the common-law “fiduciary shield” doctrine). At the same time, however, the

corporate form does not automatically shield a nonresident officer or agent, like Mr.

Breitbart, who otherwise has sufficient contacts with the forum state. Id. at 521. At the

very least, as to Plaintiffs’ causes of action for fraud and breach of fiduciary duty, it is

Mr. Breitbart’s alleged wrongdoing that is at issue, not the mere fact that he signed a

contract as President, member, promoter or in some other capacity related to Breitbart

Holdings or Breitbart.com. See Bancroft, 223 F.3d at 1087 (personal jurisdiction exists

where defendant engages in “allegedly wrongful conduct targeted at a plaintiff whom the

defendant knows to be a resident of the forum state”). Stated another way, Mr. Breitbart

is not being haled into a Washington court as a result of “random, fortuitous, or

attenuated contacts, or of the unilateral activity of another party or third person,” Burger

King, 471 U.S. at 475, but by allegations related to his own course of action directed at

Gen Ads, a Washington company. The court finds unavailing the Moving Defendants’

argument that personal jurisdiction is improper because Mr. Breitbart has not visited

Washington since he was a young boy. A defendant’s physical presence in the state is

not required, as long he “purposely directed” efforts toward the forum. Burger King, 471

U.S. at 476. 

The second prong of the Ninth Circuit test is easily met. To establish that a claim

“arises out of forum-related activities,” a court must determine “whether [a plaintiff’s]

claims would have arisen but for [a defendant’s] contacts with” the forum state. Doe v.

Unocal Corp., 248 F.3d 915, 924 (9th Cir. 2001). Here, the contact with the forum state

is Mr. Breitbart’s alleged conduct related to negotiating contracts to form and partner

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ORDER – 8

with Gen Ads. The conduct surrounding the contracts form the basis of Plaintiffs’

complaint. 

As to the third prong, Mr. Breitbart fails to make a “compelling case” that the

exercise of jurisdiction is unreasonable. Schwarzenegger, 374 F.3d at 802. The Ninth

Circuit has set forth a universe of factors for the court to consider in determining whether

the exercise of jurisdiction over a nonresident defendant satisfies the reasonableness test:

(1) the extent of the defendant’s purposeful interjection into the forum state’s affairs; (2)

the burden on the defendant; (3) conflicts of law between the forum and defendant’s

home jurisdiction; (4) the forum’s interest in adjudicating the dispute; (5) the most

efficient judicial resolution of the dispute; (6) the plaintiff’s interest in convenient and

effective relief; and (7) the existence of an alternative forum. Sinatra, 854 F.2d at 1199-

1201; Insurance Co. of North America v. Marina Salina Cruz, 649 F.2d 1266, 1270 (9th

Cir. 1981) (first setting out factors). The Moving Defendants do not address any of these

factors; rather they simply state that it would be unfair and inequitable for them to suffer

the inconvenience of defending this suit in Washington. Defs.’ Mot at 12; Reply at 11. 

The court finds that Mr. Breitbart has not met his burden on the third prong and that

moreover, the balance of factors weighs in Plaintiffs’ favor. 

 Because the court has determined that it has personal jurisdiction over Mr.

Breitbart for the purposes of, at least, Plaintiffs’ claims of fraud and breach of fiduciary

duty, the court exercises its discretion to assert jurisdiction over Mr. Breitbart for the

remaining two causes of action: breach of contract and copyright infringement. See Corp.

v. Atlantic Embroidery, Inc., 368 F.3d 1174, 1181 (9th Cir. 2004) (court has discretion to

exercise pendent jurisdiction over claims in the absence of minimum contacts). The

breach of contract claim arises under the same common nucleus of operative fact as

alleged under the fraud and fiduciary duty claims. See id. Pendant personal jurisdiction

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ORDER – 9

as to the copyright claim is somewhat more tenuous; however, judicial economy and the

avoidance of piecemeal jurisdiction strongly weighs in favor of this court’s exercise of

jurisdiction over this remaining cause of action. Accordingly, the court denies the

Moving Defendants’ motion to dismiss for lack of personal jurisdiction over Mr.

Breitbart.

C. Jurisdiction Over Susannah Breitbart

As to Mrs. Breitbart, Plaintiffs have not alleged any action on her part that would

evidence a contact with Washington State, nor for that matter, any conduct whatsoever

that relates to this lawsuit. Rather, Plaintiffs allege that Mr. Breitbart acted as an agent

for his wife in the course of his business dealings. 

Under California law, it is not necessary to name both spouses in order to bind the

community estate. Reynolds & Reynolds Co. v. Universal Forms, Labels & Systems,

Inc., 965 F. Supp. 1392, 1396 (C.D. Cal 1997) (citing Cal. Fam. Code § 910). In

Reynolds, the court dismissed the wives of defendant-former employees from suit on a

Fed. R. Civ. P. 12(b)(6) motion because the plaintiff-employer had not stated any cause

of action against the wives, but rather named them solely to reach the community assets. 

Id. at 1397. Although a different procedural posture than the instant matter, the Reynolds

case is instructive in that, applying California law, the court considered the actions of the

spouses separately from one another. The court noted that, although it would have

certainly allowed the wives to intervene as permissible parties had they been omitted

from suit, the court would not force the unwilling spouses to participate in the litigation

where no cause of action sounded against them individually. Id. By contrast, a federal

district court applying Arizona law – which does require joinder of both spouses to obtain

judgment against community property – exercised jurisdiction over a nonresident spouse

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ORDER – 10

on the theory that the husband acted as the wife’s agent. Essex Engineering Co. v. Credit

Vending, Inc., 732 F. Supp. 311, 315 (D. Conn. 1990). 

The court finds no justification for departing from the Reynolds rationale,

particularly where Plaintiffs provide no authority for the proposition that Mr. Breitbart

acted as Mrs. Breitbart’s agent and that by virtue of this supposed relationship, the court

has jurisdiction over Mrs. Breitbart. Indeed, Plaintiffs rely on Washington’s statutory

presumptions about community property liability and assert that, since California is also a

community property state, California law must have analogous rules. In doing so,

Plaintiffs not only fail to cite any California authority, but incorrectly focus on the

question of liability which this court considers a separate question from that of personal

jurisdiction. Further, there is no evidence that Mrs. Breitbart even knew or consented to

any of Mr. Breitbart’s alleged business dealings. Without more, the court declines to

assert personal jurisdiction based on an out-dated presumption that an agency relationship

between two individuals exists simply because they are married. See Restatement

(Second) of Agency, § 22, comment b (“[n]either husband nor wife by virtue of the

relation has power to act as agent for the other”); see also Kesler v. Pabst, 273 P.2d 257,

260 (Cal. 1954) (reasoning that the mere existence of a family relationship did not

establish agency in context of negligence claim). 

Moreover, as a general rule, courts consider personal jurisdiction as it relates to

each individual defendant. Helicopteros Nacionales de Colombia, S,A. v. Hall, 466 U.S.

408, 416-17 (1984) (“unilateral activity of another party or a third person is not an

appropriate consideration when determining whether a defendant has sufficient contacts

with a forum State”). Thus, even if a unilateral act is done with a nonresident defendant’s

knowledge or acquiescence, such contact is insufficient. See Kulko v. California

Superior Court, 436 U.S. 84, 93-94 (1978) (holding that no jurisdiction existed over

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ORDER – 11

defendant-father based on his mere acquiescence to allow child to live in California).

Against this backdrop, the court grants the Moving Defendants’ motion to dismiss the

case against Mrs. Breitbart for lack of personal jurisdiction. See Magidow v. Coronado

Cattle Co., 504 P.2d 961, 966 (Ariz. App. 1972) (finding no personal jurisdiction over

California wife who had no contacts with forum state other than those arising from her

membership in marital community). 

IV. CONCLUSION

 For the reasons stated above, the court holds that it has personal jurisdiction over

Mr. Breitbart, but does not have jurisdiction over Mrs. Brietbart. Accordingly, the court

DENIES in part and GRANTS in part the Moving Defendants’ motion to dismiss (Dkt. #

14). 

Dated this 5th day of June, 2006.

A 

JAMES L. ROBART

United States District Judge

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