NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DEFS.’ MOT. TO DISMISS FOR

LACK OF JURISDICTION - 1

(CV06-0204JCC)

The Honorable John C. Coughenour

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

JAMES S. GORDON, Jr., a married

individual, d/b/a

‘GORDONWORKS.COM’,

Plaintiff,

v.

VIRTUMUNDO, INC, a Delaware

corporation d/b/a

ADNOWLEDGEMAIL.COM;

ADKNOWLEDGE, INC., a Delaware

corporation, d/b/a

ADKNOWLEDGEMAIL.COM;

SCOTT LYNN, an individual; and

JOHN DOES, 1-X,

Defendants.

No. CV06-0204JCC

DEFENDANTS’ MOTION TO

DISMISS FOR LACK OF

PERSONAL JURISDICTION

PURSUANT TO FED. R. CIV.

P. 12(b)(2)

NOTE ON MOTION CALENDAR:

April 7, 2006

I. INTRODUCTION

Defendants Virtumundo, Inc. (“Virtumundo”), Adknowledge, Inc.

(“Adknowledge”), and Scott Lynn (collectively “Defendants”) herein move to

dismiss this action with prejudice for lack of personal jurisdiction. 

Defendants have had no contacts with Plaintiff, except Plaintiff randomly

accessed in Washington emails he alleges Defendants initiated from out of

this state. Defendants Adknowledge, Inc. and Virtumundo, Inc. are out-ofstate corporations, and do not have any physical presence in the State of

Case 2:06-cv-00204-JCC Document 8 Filed 03/16/2006 Page 1 of 17

Gordon v. Virtumundo Inc et al Doc. 8

Dockets.Justia.com
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

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1

 Neither Defendant Virtumundo, Inc. nor Defendant Scott Lynn were properly served

with process in this action. Virtumundo, Inc. and Scott Lynn do not waive Plaintiff’s obligation

to serve valid process upon them.

DEFS.’ MOT. TO DISMISS FOR

LACK OF JURISDICTION - 2

(CV06-0204JCC)

Washington. Defendant Scott Lynn is a resident of the State of Missouri, and

serves as Chief Executive Officer of Adknowledge. None of Defendants have

availed themselves of this forum and haling them into Court would offend the

constitutional principles of due process. Accordingly, the Court should

dismiss this action.

II. FACTS

Adknowledge is a Delaware corporation with its principal place of

business located in the State of Missouri. See Declaration of Michael Geroe

In Support Of Motion To Dismiss For Lack Of Personal Jurisdiction (“Geroe

Decl.”) at ¶ 3. Virtumundo is a Delaware corporation with its principal place

of business located in the State of Kansas. See Declaration of Allen Brandt In

Support Of Motion To Dismiss For Lack Of Personal Jurisdiction (“Brandt

Decl.”) at ¶ 5. Defendant Scott Lynn is a resident of Kansas City, Missouri,

and serves as Chief Executive Officer of Adknowledge and sole shareholder of

both entities.1

Adknowledge and Virtumundo advertise via email, but transmit email

advertisements through the Internet to no particular destination. The email

addresses to which emails are sent do not contain area codes or mailing

addresses that would designate the location of the recipient. See Brandt Decl.

at ¶ 24. Moreover, email can be accessed anywhere in the world via the

Internet and, as a result, email cannot be sent to a particular geographic

location. Id.; Geroe Decl. at ¶ 18. Accordingly, Adknowledge and Virtumundo

have neither targeted any bulk email or other advertisements to the State of

Washington (Geroe Decl. at ¶ 7), nor sought to provide any goods or services

to the State of Washington (Brandt Decl. at ¶ 16). 

Case 2:06-cv-00204-JCC Document 8 Filed 03/16/2006 Page 2 of 17
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

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DEFS.’ MOT. TO DISMISS FOR

LACK OF JURISDICTION - 3

(CV06-0204JCC)

To the contrary, both Adknowledge and Virtumundo have taken

affirmative steps to avoid contact with Washington residents. Adknowledge

provides permission-based marketing services wherein consumers may

voluntarily provide their contact information if they are interested in

receiving marketing offers regarding certain subject matter. See Geroe Decl.

at ¶ 13. Customers can choose to provide varying amounts of information,

including a city or state of residence if they wish. Id. Because of a desire to

avoid litigation in Washington, Adknowledge adopted a practice in at least

early 2004 of suppressing the transmission of commercial email to all

consumers from its database who provide city or state information indicating

residence in Washington. Id. at ¶ 15. The commercial email addresses which

are suppressed from Adknowledge’s database receive no further

communication or contact from Adknowledge. Id. In fact, Adknowledge has

suppressed approximately 1.3 million email addresses from individuals who

self-reported that they are from Washington State over a period of several

years. Id. at ¶ 16. Additionally, Adknowledge ceased adding email addresses

to its database from people who reported a Washington residence in

December 2004. Id. at ¶ 17. 

Virtumundo has also taken proactive steps to avoid contact with

Washington and the plaintiff. Virtumundo’s General Counsel, Allen Brandt,

after receiving notice from Adknowledge that Plaintiff James Gordon

(“Plaintiff”) was targeting litigation against out of state parties, caused

Plaintiff’s name to be removed from Virtumundo’s database of consumers. 

See Brandt Decl. at ¶ 25. Virtumundo never made any contact with Plaintiff

via email, for commercial purposes, or otherwise. Id. at ¶ 26.

Nor do Adknowledge or Virtumundo have other contacts with the State

of Washington. Adknowledge does not have any offices in the State of

Washington. See Geroe Decl. at ¶ 5. Adknowledge does not own or rent real

Case 2:06-cv-00204-JCC Document 8 Filed 03/16/2006 Page 3 of 17
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

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DEFS.’ MOT. TO DISMISS FOR

LACK OF JURISDICTION - 4

(CV06-0204JCC)

property in the State of Washington. Id. All of Adknowledge’s employees are

located in the States of Missouri, California, New York, and Texas. 

Adknowledge has no employees in the State of Washington. Id. at ¶ 6. 

Adknowledge does not have any offices, statutory agents, telephone listings or

mailing addresses in Washington. Id. at ¶ 7. Adknowledge has no bank

accounts, licenses, or other operations in Washington. Id. Adknowledge is

not subject to taxation in Washington. Id. at ¶ 9. Adknowledge does not

advertise in any Washington newspapers or magazines or other Washington

print, radio or television media. Id. at ¶ 10. Adknowledge does not generate

any substantial percentage of its revenues from consumers clicking on its

email advertisements in the State of Washington. Id. at ¶ 11. 

Similarly, Virtumundo has no offices or employees in the State of

Washington. See Brandt Decl. at ¶ 13. Rather, all employees are located in

the State of Kansas. Id. at ¶ 15. Virtumundo does not own or rent real

property in the State of Washington. Id. at ¶ 14. Virtumundo has no office,

statutory agent, telephone listing or mailing address in Washington. Id. at ¶

17. Virtumundo does not have any vendors, bank accounts, licenses or other

operations in Washington. Id. at ¶ 18. Virtumundo is not subject to taxation

in Washington. Id. at ¶ 19. Virtumundo does not advertise in any

Washington newspapers or magazines, or other Washington media. Id. at ¶

20. Virtumundo does not have any Washington-based shareholders. Id. at ¶

21. None of Virtumundo’s employees or agents have traveled to Washington

on official business. Id. at ¶ 22. Virtumundo does not generate any

substantial percentage of its revenue from activities in the State of

Washington. Id. at ¶ 23. In 2004, only 0.04% of Virtumundo’s revenue was

generated from Washington. Id. In 2005, a mere 0.16% of Virtumundo’s

revenue was generated from Washington. Id.

Finally, Plaintiff has not alleged a business relationship with any of the

Case 2:06-cv-00204-JCC Document 8 Filed 03/16/2006 Page 4 of 17
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

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DEFS.’ MOT. TO DISMISS FOR

LACK OF JURISDICTION - 5

(CV06-0204JCC)

Defendants. Plaintiff has not alleged that Defendants have provided him

goods or services. The only alleged relationship between Plaintiff and

Defendants is that Defendants distributed emails over the Internet which

Plaintiff fortuitously accessed while in the State of Washington.

III. ARGUMENT AND AUTHORITY

Rule 12(b)(2) of the Federal Rules of Civil Procedure provides that a

Court may dismiss a motion for “lack of jurisdiction over the person.” FED. R.

CIV. P. 12(b)( 2). The plaintiff bears the burden of proof on the necessary

jurisdictional facts, such as the existence of “minimum contacts” between

defendants and the forum state. See Flynt Distrib. Co., Inc. v. Harvey, 734

F.2d 1389, 1392 (9th Cir. 1984); Farmers Ins. Exchange v. Portage La Prairie

Mut. Ins. Co., 907 F.2d 911, 912 (9th Cir. 1990). When defendant’s motion to

dismiss is made as its initial response, plaintiff must make a prima facie

showing that personal jurisdiction exists. See Data Disc, Inc. v. Sys.

Technology Assoc., Inc., 557 F.2d 1280, 1285 (9th Cir. 1977). In this context,

a “prima facie” showing means that plaintiff has produced admissible

evidence which, if believed, would be sufficient to establish the existence of

personal jurisdiction. See WNS, Inc. v. Farrow, 884 F.2d 200, 203-04 (5th Cir.

1989).

The exercise of personal jurisdiction must comport with constitutional

due process. Pursuant to due process, a defendant is subject to jurisdiction

within a state only if it has “minimum contacts” with that state, “such that

the maintenance of the suit does not offend the traditional notion of fair play

and substantial justice.” International Shoe Co. v. Korea, 326 U.S, 310, 316

(1945).

The purpose of the “minimum contacts” requirement is to protect the

defendant against the burden of litigation at a distant or inconvenient forum,

and to ensure that states do not reach beyond the limits of their sovereignty

Case 2:06-cv-00204-JCC Document 8 Filed 03/16/2006 Page 5 of 17
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DEFS.’ MOT. TO DISMISS FOR

LACK OF JURISDICTION - 6

(CV06-0204JCC)

imposed by their status in the federal system. World-Wide Volkswagen Corp.

v. Woodson, 444 U.S. 286, 291 - 292 (1980). The purposeful availment

requirement ensures that defendants will not be “haled into a jurisdiction

through ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts.’” Terracom v. Valley

Nat’l Bank, 49 F.3d 555, 560 (9th Cir. 1995) (quoting Burger King Corp. v.

Rudzewicz, 471 U.S. 462, 475, 85 L. Ed. 2d 528, 105 S. Ct. 2174 (1985)). The

central concern of the jurisdiction inquiry is the relationship between the

defendant, the forum, and the litigation. Shaffer v. Heitner, 433 U.S. 186,

204 (1977). Applying the foregoing standards to the instant motion requires

dismissing this lawsuit.

A. The Complaint Does Not Allege a Prima Facie Case of

Specific Jurisdiction

Specific jurisdiction is satisfied only if the defendant has “purposefully

directed” its activities at residents of the forum. Keeton v. Hustler Magazine,

Inc., 465 U.S. 770, 774 (1984) (emphasis added). Additionally, the litigation

must result from injuries that “arise out of or relate to” those activities. 

Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984).

In that respect, the Ninth Circuit uses a three-part test to determine whether

a district court may exercise specific jurisdiction over a nonresident

defendant:

(1) The nonresident defendant must do some act or consummate

some transaction with the forum or perform some act by which he

purposefully avails himself of the privilege of conducting activities

in the forum,thereby invoking the benefits and protections[;] (2)the

claim must be one which arises out of or results from the

defendant's forum-related activities[; and] (3) exercise of jurisdiction

must be reasonable.

Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995) (citations

omitted)(emphasis added). Plaintiff must satisfy each element of the test

articulated in Ballard to defeat this Motion to Dismiss.

///

Case 2:06-cv-00204-JCC Document 8 Filed 03/16/2006 Page 6 of 17
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DEFS.’ MOT. TO DISMISS FOR

LACK OF JURISDICTION - 7

(CV06-0204JCC)

1. Defendants did not “purposefully avail” themselves of the

laws of the state of Washington.

The “purposeful availment” requirement is satisfied only where the

plaintiff demonstrates that the defendant’s contacts with the forum state

create a “substantial connection” with the forum state, and where the

defendant’s conduct and connection with the forum are such that he should

reasonably anticipate being haled into court there. Burger King Corp., 471

U.S. at 474-75. Courts that have examined whether a defendant who sent

emails accessed in the forum state is sufficient to establish purposeful

availment have consistently held that emails alone are not enough. Central

to this analysis is the fact that email addresses (as opposed to mail address

and phone numbers) are location neutral. For example, the sender of an

email to “jim@gordonworks.com” has no reason to conclude that the emails

will be viewed in any particular forum.

The District Court of Utah recently held that where only three email

addresses out of 400 received in Utah could be identified as Utah addresses,

the sending of mass email to those 400 addresses were insufficient to

establish purposeful availment. Hydro Engineering, Inc. v. Landa, Inc., 231

F.Supp.2d 1130 (D. Utah 2002). In contrast, the defendants in this case are

not alleged to have sent an email to a single address with a geographic

indication. (Complaint, 4:8-9, alleging emails were sent to one or more

addresses through the domain “gordonworks.com”.) See also, Barrett v.

Catacombs Press, 44 F.Supp.2d 717, 729 (E.D.Pa. 1999) (holding that the

exchange of three emails, without more, did not amount to purposeful

availment); and Machulsky v. Hall, 210 F.Supp.2d 531, 542 (D.N.J. 2002)

(email correspondence relating to a single purchase did not amount to

“substantial connections” with the forum state). Recent State Court decisions

further support the dismissal of Plaintiff’s suit. See, e.g., Fenn v. Mleads

Case 2:06-cv-00204-JCC Document 8 Filed 03/16/2006 Page 7 of 17
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ATTORNEYS AT LAW, LLP

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DEFS.’ MOT. TO DISMISS FOR

LACK OF JURISDICTION - 8

(CV06-0204JCC)

Enterprises, Inc., 2006 UT 8; 545 Utah Adv. Rep. 7; 2006 Utah LEXIS 8

(Utah February 10, 2006) (failing to find purposeful availment where

marketing agency sent an email with no knowledge of geographic location

where it would be retrieved); see also Metcalf v. Lawson, 148 N.H. 35 (N.H.

2002) (Holding that emails with a purchaser who bought an item through an

online auction website, where the emails were sent without knowledge of

purchaser’s residence, were insufficient to establish minimum contacts). In

Fenn, the Utah Supreme Court recently considered whether email alone was

sufficient to establish personal jurisdiction. The Fenn Court considered that,

“The main complication is that a defendant . . . is generally unaware of the

geographic location to which it sends an email because that information is not

necessarily provided with the email address.” Fenn v. Mleads Enters., 2006

UT at 12. The Fenn Court held that sending emails to location-neutral

addresses did not pass constitutional muster to establish personal

jurisdiction. 

Applying the Ninth Circuit’s standards and the overwhelming weight of

authority addressing personal jurisdiction on the Internet also supports

dismissal of the instant matter. The Ninth Circuit addressed the issue of

purposeful availment as applied to Internet websites in Cybersell, Inc. v.

Cybersell, Inc., 130 F.3d 414, 416 (9th Cir. 1997). The Cybersell Court held

that in order for a website to give rise to personal jurisdiction, the website

must have some presence in that jurisdiction and it is not sufficient that it

merely operates a “passive” website. In Cybersell, the Ninth Circuit held that

registering a domain name identical to a trademark and posting a web site

via such domain name on the Internet is not sufficient to subject a party

domiciled in one state to jurisdiction in another. See Cybersell, 130 F.3d at

418. There must be “something more” to demonstrate that the defendant

purposefully directed his activity in a substantial way toward the forum state.

Case 2:06-cv-00204-JCC Document 8 Filed 03/16/2006 Page 8 of 17
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

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DEFS.’ MOT. TO DISMISS FOR

LACK OF JURISDICTION - 9

(CV06-0204JCC)

Id. In Cybersell, defendant Cybersell, Inc. (a Florida corporation) registered

the domain name <cybersell.com>. 

Plaintiff Cybersell, Inc. (an Arizona corporation) had submitted an

application to the United States Patent and Trademark Office to register the

name CYBERSELL as a service mark, and had previously operated a web site

using the mark. At the time Cybersell-FL registered the domain name,

Cybersell-AZ’s web site had been taken down for reconstruction and the

application for the service mark had not yet been approved. When

Cybersell-AZ discovered defendant's web site, it filed a trademark

infringement action in the District of Arizona. The Court found that

defendant's use of the Cybersell name on an essentially passive web site

advertisement did not constitute purposeful availment of the privilege of

doing business in the state of Arizona because defendant had no contacts with

Arizona other than maintaining a web page accessible to anyone over the

Internet. Id. at 419; see also Bensusan Restaurant Corp. v. King, 937 F.

Supp. 295 (S.D.N.Y. 1996), aff’d, 126 F.3d 25 (2d Cir. 1997) (holding that

personal jurisdiction was improper as to a defendant who merely posted

information on its Website).

The Ninth Circuit’s reasoning in Cybersell applies in the present

matter. Like the defendant in that case, Defendants’ actions are distributed

throughout the Internet without any purposeful direction towards any

particular forum. Plaintiff’s location can not be discerned from his email

addresses. Further, Plaintiff can access his email accounts via any

Internet-enabled device located in any city, state or country on the planet. 

Thus, Plaintiff’s email address is in no way linked to the State of Washington.

Propagating information through email is no different than making

information available through a passive Website. Email and Websites both

distribute content to individual computers via the Internet; they simply use

Case 2:06-cv-00204-JCC Document 8 Filed 03/16/2006 Page 9 of 17
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ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

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DEFS.’ MOT. TO DISMISS FOR

LACK OF JURISDICTION - 10

(CV06-0204JCC)

different transmission protocols. Internet content is distributed across the

globe in the same technical fashion, regardless of whether the content is

transmitted as an Internet world wide web site through TCP/IP protocol, or

by email. From a jurisdictional standpoint, Email and Websites are

indistinguishable. Thus, the reasoning and holding in Cybersell controls.

Plaintiff alleges that his location could be determined “upon request” or

from “other public sources.” (Complaint, 4:4-5.) The law places no burden on

Defendants to research and discover Plaintiff’s location. The availability of

this information for parties who wish to research it is insufficient to establish

jurisdiction in Washington. Indeed, if the Court adopted a rule whereby the

mere availability of information was sufficient to establish purposeful

availment then the history of personal jurisdiction jurisprudence would be

substantially different. The Cybersell court dismissed this approach when it

considered that the defendant could have simply performed a trademark

search to determine the potential plaintiff in Arizona, but held that due

process does not require such a burden on those making information available

over the Internet. 

In an unreported case, the Ninth Circuit ruled that email alone is

insufficient to establish personal jurisdiction. In Siskiyou Properties, LLC v.

Bennett Holdings, LC, 13 Fed. Appx. 553, 2001 U.S. App. LEXIS 14429 (9th

Cir. 2001), the Ninth Circuit held that “dozens [of] telephone, mail, fax and

e-mail” sent to Oregon were not sufficient to establish purposeful availment

in Oregon. The Ninth Circuit so held despite the fact that mail addresses

clearly indicate the state to which the mail is sent without having to resort to

a website. The Ninth Circuit, citing Burger King, 471 U.S. 478, noted that “a

contract alone does not automatically provide the required minimum contacts

for the exercise of personal jurisdiction.” Siskiyou Properties, 2001 U.S. App.

LEXIS at 6-7. 

Case 2:06-cv-00204-JCC Document 8 Filed 03/16/2006 Page 10 of 17
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

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DEFS.’ MOT. TO DISMISS FOR

LACK OF JURISDICTION - 11

(CV06-0204JCC)

Furthermore, it is well-settled in the Ninth Circuit and other circuits

that phone calls, mailings and fascimile do not provide for personal

jurisdiction. See Peterson v. Kennedy, 771 F.2d 1244, 1262 (9th Cir. 1985)

(telephone and mail contacts alone are insufficient to satisfy the purposeful

availment test); see also Thos. P. Gonzalez Corp. v. Consejo Nacional de

Produccion de Costa Rica, 614 F.2d 1247, 1254 (9th Cir. 1980) (“use of the

mails, telephone, or other international communications simply do not qualify

as purposeful activity invoking the benefits and protection of the [forum]

state”). For example, in Future Technology Today, Inc. v. OSF Healthcare

Systems, 218 F.3d 1247 (11th Cir. 2000), the defendant and plaintiff engaged

in regular, first-class mail, email, facsimile and telephone communications

and the defendant performed services for the defendant, yet the Eleventh

Circuit held that the defendant had not purposefully availed itself of the

Plaintiff's jurisdiction. In Condon v. Flying Puck, LLC, 35 Fed. Appx. 173,

2002 U.S. App. LEXIS 9091 (6th Cir. 2002), the Sixth Circuit held that where

an employee negotiated a contract with his future employer in the state of

Ohio and exchanged emails, phone calls and faxes between California and

Ohio, that the constitution mandated dismissal of plaintiff's case in Ohio. See

also Bell Paper Box, Inc. v. Trans Western Polymers, Inc., 53 F.2d 920, 923

(8th Cir. 1995) (the use of mail or telephone from outside a state is

insufficient alone to establish minimum contacts with the forum state); T.J.

Raney & Sons, Inc. v. Sec. Sav. & Loan Assoc., 749 F.2d 523, 525 (8th Cir.

1984) (contact by phone or mail is insufficient to justify exercise of personal

jurisdiction); Reynolds v. Int’l Amateur Athletic Fed’n, 23 F.3d 1110, 1119

(6th Cir. 1994) (“the use of interstate facilities such as the telephone and mail

is a secondary or ancillary factor and cannot alone provide the minimum

contacts required by due process”). 

The foregoing authority demonstrates that contracts, mailings,

Case 2:06-cv-00204-JCC Document 8 Filed 03/16/2006 Page 11 of 17
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

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DEFS.’ MOT. TO DISMISS FOR

LACK OF JURISDICTION - 12

(CV06-0204JCC)

facsimiles, emails and telephone calls in which the defendant has an

established business relationship with the plaintiff is not sufficient to

establish personal jurisdiction. Applying the foregoing authority to the

present matter, Defendants would not have subjected themselves to

jurisdiction by postal mailing directly to Plaintiff at his home in Washington

the same advertisements to which Plaintiff objects in this case. In fact,

Defendants could have actually entered into a contract with Plaintiff without

being subject to Washington state jurisdiction. Therefore, a fortiori, sending

email messages over the Internet with no foreseeable destination cannot

purposefully avail the sender to a forum in which such email may be

accessed. For this reason alone, the instant Motion to Dismiss should be

granted.

2. Defendants’ alleged conduct did not arise out of this forum.

If the Court finds that Defendants did not purposely avail themselves of

this forum, then it does not need to reach the second and third prongs of the

Ninth Circuit’s specific jurisdiction test. If the Court does address those

prongs, it should find that Plaintiff cannot establish that the claim “arises out

of” actions in the state of Washington and that it is unreasonable to find

jurisdiction in Washington.

To determine whether a claim arises out of forum-related activities,

courts apply a “but for” test. Ziegler v. Indian River County, 64 F.3d 470, 474

(9th Cir. 1995). The Ninth Circuit has adopted a “but for” test for

determining whether a plaintiff’s claim arises out of a defendant’s forum

related activities. Doe v. American Nat’l Red Cross, 112 F.3d 1048, 1051 (9th

Cir. 1997). The “arising out of” requirement of the specific jurisdiction test is

met if “but for” the contacts between the defendant and the forum state, the

cause of action would not have arisen. See Terracom, 49 F.3d at 561. In

Shute v. Carnival Cruise Lines, the Ninth Circuit reasoned that:

Case 2:06-cv-00204-JCC Document 8 Filed 03/16/2006 Page 12 of 17
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DEFS.’ MOT. TO DISMISS FOR

LACK OF JURISDICTION - 13

(CV06-0204JCC)

the ‘but for’ test is consistent with the basic function of the ‘arising

out of’ requirement – it preserves the essential distinction between

general and specific jurisdiction. Under this test, a defendant

cannot be haled into court for activities unrelated to the cause of

action in the absence of a showing of substantial and continuous

contacts sufficient to establish general jurisdiction. . . . The ‘but for’

test preserves the requirement that there be some nexus between

the cause of action and the defendant's activities in the forum.

Shute v. Carnival Cruise Lines, 897 F.2d 377, 385 (9th Cir. 1990) rev’d on

other grounds, 499 U.S. 585 (1991)). Plaintiff cannot establish that “but for”

the contacts between the Defendants and the forum state, the cause of action

would not have arisen. To the contrary, Plaintiff’s allegations arise from

Defendant’s alleged conduct in foreign jurisdictions. Defendants created

email messages outside of Washington and distributed them through the

Internet. Plaintiff does not allege any relationship between itself and

Defendants, in Washington or otherwise other than the mere fortuitous fact

that Plaintiff accessed the emails in Washington. Indeed, Plaintiff very well

could have checked his email outside of this state. Even taking the

allegations in the complaint as true, plaintiff cannot satisfy the Ninth

Circuit’s “but for” requirement to find specific jurisdiction.

3. Personal jurisdiction over defendants is unreasonable.

The reasonableness prong of the Ninth Circuit test requires that the

Court’s exercise of jurisdiction comport with “fair play and substantial

justice.” Burger King, 471 U.S. at 477-78. The factors that the Court must

consider are:

(1) the extent of the defendant’s purposeful interjection into the

forum state, (2) the burden on the defendant in defending in the

forum, (3) the extent of the conflict with the sovereignty of the

defendant’s state, (4) the forum state’s interest in adjudicating the

dispute, (5) the most efficient judicial resolution of the controversy,

(6) the importance of the forum to the plaintiff’s interest in

convenient and effective relief, and (7) the existence of an

alternative forum. Id.

Case 2:06-cv-00204-JCC Document 8 Filed 03/16/2006 Page 13 of 17
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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No one factor is dispositive, and the district court must balance all seven. 

Core-Vent Corp. v. Nobel Indus., A.B., 11 F.3d 1482, 1488 (9th Cir. 1993).

The Ninth Circuit has held that “[t]he degree to which a defendant

interjects himself into the state affects the fairness of subjecting him to

jurisdiction.” Data Disc, Inc., 557 F.2d at 1288. Defendants’ interjections into

Washington are attenuated and merely the result of the global availability of

the Internet. Thus, the first factor weighs in favor of a finding of no personal

jurisdiction.

The second factor in the reasonableness test clearly weighs in favor of

dismissal. Defendants’ burden in proceeding in this forum is substantial. 

The burden on the out-of-state defendants to litigate this claim in

Washington is significantly greater than the burden facing Plaintiff. 

Defendants’ principal places of business are in Missouri and Kansas. See

respectively, Geroe Decl. at ¶ 3; Brandt Decl. at 5. All the witnesses for

Defendants work and reside outside of Washington, in Missouri, Kansas,

California, New York, and Texas. See Geroe Decl. at ¶ 6; Brand Decl. at ¶ 15. 

Thus, considering the the number of witnesses that would be required to

travel to Washington, the burden on Defendants to litigate this claim is

significantly greater than the burden on Plaintiff. Moreover, even if the

burdens were equal, this factor would tip in favor of the Defendants because

the law of personal jurisdiction is “primarily concerned with the defendant’s

burden.” Terracom, 49 F.3d at 561. 

The efficiency of the forum also weighs against a finding of

reasonableness. In evaluating this factor, the Ninth Circuit has looked

primarily at the location of the witnesses and evidence. Core-Vent Corp. v.

Nobel Indus., A.B., 11 F.3d 1482, 1489 (9th Cir. 1993). In the present matter,

the majority of the witnesses are likely located in Missouri and Kansas. The

Defendants’ witnesses likely would be employees or agents of Adknowledge

Case 2:06-cv-00204-JCC Document 8 Filed 03/16/2006 Page 14 of 17
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

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(CV06-0204JCC)

and Virtumundo, located in Missouri, Kansas or one of the Defedants’ other

offices. While litigating in any of these states would no doubt inconvenience

Plaintiff, “neither the Supreme Court nor [the Ninth Circuit] has given much

weight to inconvenience to the plaintiff.” Core-Vent, 11 F.3d at 1490. 

Weighing the interests of the parties and witnesses, it is clear that the

assertion of personal jurisdiction in Washington would impose a substantial

burden on the Defendants and would be unreasonable. Accordingly, the

“reasonableness” factor weighs in favor of granting Defendants’ motion.

B. Defendants Are Not Subject to General Jurisdiction

Because There Is No Continuous or Systematic Contact

A court may assert either general or specific jurisdiction over a

defendant. It is unclear whether Plaintiff has alleged general as well as

specific jurisdiction. See Complaint at 2:21 - 24; 3:1 - 13. Regardless,

Plaintiff cannot establish general jurisdiction over Defendants. 

General jurisdiction exists when a defendant is domiciled in the forum

state or when its activities there are “substantial” or “continuous and

systematic.” Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408,

414-16, 80 L. Ed. 2d 404, 104 S. Ct. 1868 (1984). The standard for

establishing general jurisdiction is “fairly high,” Brand v. Menlove Dodge, 796

F.2d 1070, 1073 (9th Cir. 1986), and requires that the defendant’s contacts be

of the sort that approximate physical presence. See Gates Lear Jet Corp. v.

Jensen, 743 F.2d 1325, 1331 (9th Cir. 1984). Plaintiff cannot establish that

any of the Defendants had “substantial” and “continuous and systematic”

activities within the forum state. Such activities must be pervasive in order

to establish general jurisdiction. Data Disc Inc., 557 F.2d at 1287. “[P]laintiff

bears the burden of demonstrating [that] contacts with the forum state [are]

sufficient to give the court in personam jurisdiction.” Mesalic, 897 F.2d at

699.

Case 2:06-cv-00204-JCC Document 8 Filed 03/16/2006 Page 15 of 17
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

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Seattle, Washington 98104

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(CV06-0204JCC)

Defendants simply do not have any contacts with Washington. 

Adknowledge and Virtumundo have neither offices nor employees in the State

of Washington. See Geroe Decl. at ¶¶ 5, 6; Brandt Decl. at ¶ 13. They do not

own or rent real property in Washington, and they have no bank accounts,

licenses or other operations in Washington. See Geroe Decl. at ¶¶ 5, 8;

Brandt Decl. at ¶¶ 14, 18. Nor do Defendants have any telephone listings,

mailing addresses or statutory agents in Washington. See Geroe Decl. at ¶ 8;

Brandt Decl. at ¶ 17. Neither Adknowledge nor Virtumundo is subject to

taxation in Washington. See Geroe Decl. at ¶ 9; Brandt Decl. at ¶ 19. 

Virtumundo and Adknowledge do not place any advertisements in

Washington newspapers, magazines or other media. See Geroe Decl. at ¶ 10;

Brandt Decl. at ¶ 20. Neither Virtumundo nor Adknowledge generate any

substantial revenue from the State of Washington. See Geroe Decl. at ¶ 11;

Brandt Decl. at ¶ 23. 

To the contrary, Defendants have taken proactive steps to prevent

contact with the State of Washington. Since at least early 2004 Adknowledge

has suppressed the transmission of commercial email to all consumers who

identify a city or state of residence in Washington, and accordingly has

suppressed approximately 1.3 million emails to Washington residents over a

period of several years. See Geroe Decl. at ¶¶ 15, 16. Adknowledge stopped

adding email addresses to its database entirely in December 2004 from people

who reported a Washington residence. Id. at ¶ 17. Adknowledge has taken all

commercially reasonable steps possible to refrain from contacting the State of

Washington. Virtumundo similarly took affirmative steps to avoid contact

with Washington and Plaintiff by removing Plaintiff from its database. See

Brandt Decl. at ¶¶ 25, 26.

///

///

Case 2:06-cv-00204-JCC Document 8 Filed 03/16/2006 Page 16 of 17
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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IV. CONCLUSION

Defendants are not subject to jurisdiction in this forum. The only

relevant jurisdictional facts are Plaintiff’s allegation that he accessed certain

emails from Defendants while he was fortuitously located in Washington

State. There is no evidence that Defendants had knowledge that Plaintiff

would access the emails in Washington. Emails are location neutral and do

not have the embedded information contained in postal mailings or phone

numbers. Courts have consistently held that postal mailings and phone

numbers are insufficient to establish jurisdiction. It makes no sense that it

would be sufficient to confer jurisdiction to send an email if printing out that

email and mailing it to Plaintiff would not be sufficient to confer personal

jurisdiction. 

Defendants respectfully request this Court dismiss this action with

prejudice for lack of personal jurisdiction, and award Defendants their

reasonable attorney’s fees pursuant to RCW 4.28.185(5).

DATED this 16th day of March, 2006.

Respectfully Submitted,

NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

By:

Derek A. Newman, WSBA No. 26967

Roger M. Townsend, WSBA No. 25525

Attorneys for Defendants

Case 2:06-cv-00204-JCC Document 8 Filed 03/16/2006 Page 17 of 17