FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 1, 2006

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-13687

________________________

D. C. Docket No. 04-00515-CV-FTM-33-SPC

MICHAEL SNOW, 

Plaintiff-Appellant, 

versus 

DIRECTV, INC., a California corporation, 

STUMP, STOREY, CALLAHAN, DIETRICH & SPEARS, P.A., 

a Florida Professional Association, 

YARMUTH, WILSDON & CALFO, PLLC, 

a Washington Professional Limited Liability Company, 

JOHN DOES, 1-25, 

Defendants-Appellees. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(June 1, 2006)

Before CARNES, WILSON and PRYOR, Circuit Judges.
2

WILSON, Circuit Judge:

Michael Snow brought an action under the Stored Communications Act (the

“SCA”), 18 U.S.C. § 2701 et seq., against DirecTV, Inc., a California company;

Stump, Story, Callahan, Dietrich & Spears, P.A. (“Stump”), a Florida law firm;

Yarmuth, Wilsdon & Calfo, PLLC (“Yarmuth”), a State of Washington law firm;

and 25 unknown individuals. Snow alleged that employees of DirecTV, Stump,

and Yarmuth accessed his website’s electronic bulletin board without

authorization. The district court dismissed the complaint pursuant to Rule 12(b)(6)

of the Federal Rules of Civil Procedure, reasoning that electronic bulletin boards

are not “in electronic storage,” and, thus, are not protected by the SCA. See 18

U.S.C. §§ 2510(17), 2701. We agree with the district court that Snow’s complaint

fails to state a cause of action for which relief can be granted, but on a different

ground: Snow’s complaint fails to allege, as the SCA requires, that the website was

configured to not be readily accessible by the general public. As to Yarmuth’s

dissmissal for lack of personal jurisdiction, we also affirm.

I. BACKGROUND

DirecTV has been involved in a nationwide effort to stop the pirating of its

encrypted satellite transmissions by individuals with “pirate access devices” who

intercept the transmissions without paying fees to DirecTV. DirecTV hired
 Snow submitted documentation showing over 1,800 cases pending in Florida district 1

courts with DirecTV as a party. This number does not include the countless demand letters sent

on DirecTV’s behalf to individuals suspected of pirating DirecTV’s satellite transmissions.

3

Yarmuth, a law firm with its sole office in Seattle, Washington, to help with the

effort. As part of its strategy, DirecTV initiated thousands of anti-piracy actions,

hundreds of which were filed in Florida federal district courts. Yarmuth 1

occasionally has represented DirecTV in Florida courts alongside local Florida

counsel retained by DirecTV. Stump, a Florida law firm, also has represented

DirecTV in Florida anti-piracy actions, one of which involved Snow as a

defendant. DirecTV’s action against Snow was eventually dismissed without

prejudice.

Snow’s complaint alleges that he created his non-commercial website,

http://www.stop-corporate-extortion.com (the “SCE website” or “Snow’s

website”), as a “private support group” website for “individuals who have been, are

being, or will be sued by any Corporate entity.” Snow’s website allows its

members to share messages with each other through an electronic bulletin board. 

The language on the website’s homepage “expressly forbids access by DIRECTV

and its agents.” To gain access, one must register, create a password, and agree to

additional terms that affirm the non-association with DirecTV. A person clicking

“I Agree to these terms” may enter into, view, and participate in the electronic
 Yarmuth joined the motion conditioned on the denial of its Rule 12(b)(2) motion. 2

4

bulletin board. A person clicking “I do not agree to these terms” is re-directed to

the registration page and cannot proceed to the electronic bulletin board.

On multiple occasions, Snow alleges, employees of DirecTV, Yarmuth, and

Stump accessed his website and viewed its electronic bulletin board, in excess of

their authority. After discovering the unauthorized accesses, Snow filed his

complaint. 

Yarmuth moved for dismissal pursuant to Fed. R. Civ. P. 12(b)(2) for lack of

personal jurisdiction. The other defendants also moved for dismissal pursuant to

Rule 12(b)(6), claiming that Snow failed to state a cause of action upon which

relief can be granted because, as a matter of law, the messages stored on Snow’s

electronic bulletin board are not electronic communications in electronic storage as

contemplated by the SCA. In addition to granting both motions to dismiss, the 2

district court denied a request by Snow for discovery on the jurisdiction issue. 

This appeal followed.

II. STANDARDS OF REVIEW

We review de novo a district court’s grant of a motion to dismiss for failure

to state a claim. Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1187 (11th

Cir. 2002). 
5

We review the district court’s determination that it did not have personal

jurisdiction over a defendant de novo. Meier ex rel Meier v. Sun Int’l Hotels, Ltd.,

288 F.3d 1264, 1268 (11th Cir. 2002). When, as here, a district court does not

conduct a discretionary evidentiary hearing on a Rule 12(b)(2) motion, the plaintiff

must establish a prima facie case of personal jurisdiction over a nonresident

defendant by presenting enough evidence to withstand a motion for directed

verdict. Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990). “The district court

must accept the facts alleged in the complaint as true, to the extent they are

uncontroverted by the defendant’s affidavits.” Id. Where the plaintiff’s complaint

and the defendant’s affidavits conflict, the district court must construe all

reasonable inferences in the plaintiff’s favor. Id.

III. DISCUSSION

A. Personal Jurisdiction Over Yarmuth

In federal question cases arising under a federal statute silent as to service of

process, Rule 4(e) of the Federal Rules of Civil Procedure requires that we

determine both jurisdiction and service of process using state amenability

standards, that is, the state long-arm statute. Cable/Home Commc’n Corp. v.

Network Prods., Inc., 902 F.2d 829, 855 (11th Cir. 1990). Our analysis, however,

goes beyond the state’s long-arm statute. Jurisdiction over a non-resident
6

defendant must also satisfy the Due Process Clause. See id. at 857. Because the

SCA is silent as to service of process and the present case was brought in the

United States District Court for the Middle District of Florida, we apply the State

of Florida’s long-arm statute, which states in relevant part:

(1) Any person, whether or not a citizen or resident of this state, who

personally or through an agent does any of the acts enumerated in this

subsection thereby submits himself or herself . . . to the jurisdiction of

the courts of this state for any cause of action arising from the doing

of any of the following acts:

. . .

(b) Committing a tortious act within this state.

. . .

(f) Causing injury to persons or property within this state

arising out of an act or omission by the defendant outside this

state, if, at or about the time of the injury, . . . [t]he defendant

was engaged in solicitation or service activities within this

state; 

. . .

(2) A defendant who is engaged in substantial and not isolated activity

within this state, whether such activity is wholly interstate, intrastate,

or otherwise, is subject to the jurisdiction of the courts of this state,

whether or not the claim arises from that activity.

Fla. Stat. § 48.193 (2006).

We find no basis to assert jurisdiction over Yarmuth. First, Snow briefly

argues that Yarmuth is subject to jurisdiction under § 48.193(1)(b) because it

conspired with and acted through its agents DirecTV and Stump, which committed
 For example, the only allegation that mentions acts committed in Florida states: 3

“DIRECTV, STUMP, and YARMUTH have committed, and conspired to commit, acts and have

acted alone and in concert to commit acts within the State of Florida . . . relevant to and giving

rise to the claims herein.” 

7

tortious acts in Florida. Snow relies solely on vague and conclusory allegations3

presented in his complaint, which are insufficient to establish a prima facie case of

personal jurisdiction over Yarmuth. See Posner v. Essex Ins. Co., 178 F.3d 1209,

1217-18 (11th Cir. 1999) (per curiam) (finding a plaintiff’s vague allegations of a

conspiracy insufficient to establish an actionable conspiracy subjecting the

defendant to personal jurisdiction). Wilsdon, a Yarmuth partner, submitted an

affidavit in which he claims that, while representing DirecTV in Florida courts, he

worked with local counsel retained by DirecTV. DirecTV, not Yarmuth, would be

the principal in any possible agency relationship that existed among DirecTV,

Yarmuth, and Stump, which was retained by DirecTV in some Florida actions. 

Snow presents no factual allegations demonstrating an agency relationship where

Yarmuth was the principal and Stump was its agent, as would be required to

subject Yarmuth to jurisdiction in Florida for Stump’s actions. Accordingly, we

find no basis to subject Yarmuth to personal jurisdiction under § 48.193(1)(b).

Equally unpersuasive is Snow’s argument for jurisdiction under §

48.193(1)(f). Snow argues that under the statute’s plain language Yarmuth is
 A Yarmuth employee admitted to accessing Snow’s website, which was hosted on 4

Globat’s servers. The employee was in Seattle, Washington. According to documentation

submitted by Yarmuth that was not disputed by Snow, Globat’s servers were located in

California. Snow claims that the unauthorized access of the website caused injury in Florida

because he was physically located in Florida.

8

subject to jurisdiction because it caused injury to him in Florida. However, we are 4

required to read the statute as the Florida Supreme Court would. Cable/Home

Commc’n, 902 F.2d at 856. The Florida Supreme Court has held that §

48.193(1)(f) applies only when a defendant’s out of state actions cause personal

injury or damage to physical property in the State of Florida. See Aetna Life &

Cas. Co. v. Therm-O-Disc, Inc., 511 So. 2d 992, 994 (Fla. 1987). Because Snow

does not allege that he sustained any personal injury or damage to his physical

property, Yarmuth cannot be reached under § 48.193(1)(f).

Finally, Snow argues that the statute’s general jurisdiction provision applies

to Yarmuth. See Fla. Stat. § 48.193(2) (2006). General jurisdiction does not

require a connection between a defendant’s activities and the cause of action. See

Helicopteros Nacionales de Colombia S.A. v. Hall, 466 U.S. 408, 414 n.9, 104 S.

Ct. 1872 n.9, 80 L. Ed. 2d 404 (1984). Florida courts have held the term

“substantial and not isolated activity” used in § 48.193(2) means “continuous and

systematic general business contact” with Florida, a term used by the Supreme

Court in Helicopteros to determine whether general jurisdiction was permissible
 Wilsdon states that the number is unknown. Snow claims many. 5

9

under the Due Process Clause. See Woods v. Nova Cos. Belize Ltd., 739 So. 2d

617, 620 (Fla. Dist. Ct. App. 1999); Helicopteros, 466 U.S. at 415-16, 104 S. Ct. at

1872-73. 

Snow’s complaint states that Yarmuth, its shareholders and associates have

been conducting business in Florida and in Florida courts on DirecTV’s behalf and

in conjunction with Stump. Yarmuth does not argue that it has no contacts with

Florida, but claims that its contacts are few. According to Wilsdon’s affidavit,

Yarmuth is a law firm organized and located solely in Seattle, Washington. It has

never maintained any physical presence (e.g., office, mailing address, or registered

agent) in Florida, nor has it ever solicited clients in Florida. None of its attorneys

are admitted to the Florida bar. Wilsdon also states, however, that Yarmuth has

represented four Florida-based clients in matters pending in Washington’s state

courts. Its attorneys have conducted pre-litigation negotiations through telephone

communications, electronic mail, and traditional mail with many Florida residents

suspected of pirating DirecTV’s satellite signal, and have represented DirecTV in 5

three piracy-related cases in Florida. According to Wilsdon, Yarmuth’s

representation of Florida clients and of DirecTV in Florida cases generated less

than one percent of the law firm’s total revenue.
 Snow’s attorney also provided an affidavit and transcript documenting a Yarmuth 6

attorney’s attempt to depose in Florida a witness subpoenaed in connection with a case pending

in the Southern District of Iowa.

10

Snow counters that Wilsdon understated Yarmuth’s ties with Florida. Snow

provided documentation showing Yarmuth attorneys listed as the counsel of record

in four Florida cases other than the ones listed by Wilsdon. Snow also submitted 6

documentation showing DirecTV was a party in 1,820 lawsuits in the federal

district courts in Florida. Snow presented no evidence linking Yarmuth to these

cases.

Based on the allegations, the affidavits, and the supporting documentation,

we find no “continuous and systematic” contacts sufficient to subject Yarmuth to

general jurisdiction in Florida. Any suggestion that Yarmuth was involved in all

1,820 of DirecTV’s Florida cases is speculation. Yarmuth’s negotiations on

DirecTV’s behalf with some Florida residents, its seven appearances as counsel of

record for DirecTV, and its representation of four Florida clients in Washington

courts are not enough to establish general jurisdiction, when balanced against

Yarmuth’s lack of a physical presence in Florida, its non-solicitation of Florida

clients, and its deriving less than one percent of its revenues from matters

connected with Florida. Yarmuth falls outside the scope of § 48.193(2).

Because Yarmuth is not subject to jurisdiction under Florida’s long-arm
11

statute, we need not address whether the Due Process Clause permits jurisdiction. 

We affirm the grant of Yarmuth’s motion to dismiss.

 B. Dismissal of Snow’s Complaint for Failure to State a Claim

We now turn to the motion to dismiss for failure to state a claim. We hold

that Snow did not allege the material elements necessary to state a claim under the

SCA. Our analysis begins with a general discussion of pleading standards. We

then address the requirements of stating a claim under the SCA, and finally

conclude our analysis by examining the four corners of Snow’s complaint.

1. Pleading Standards

All facts set forth in a plaintiff’s complaint are to be accepted as true. 

Oxford Asset Mgmt., 297 F.3d at 1188. A complaint will not be dismissed “unless

it is plain that the plaintiff can prove no set of facts that would support the claims

in the complaint.” Id. “However, conclusory allegations, unwarranted deductions

of facts or legal conclusions masquerading as facts will not prevent dismissal.” Id.;

see also Kaempe v. Myers, 367 F.3d 958, 963 (D.C. Cir. 2004) (“[W]e will not

accept inferences drawn by plaintiffs if such inferences are unsupported by the

facts set out in the complaint . . . .”) (quotations omitted). “[Our] duty to liberally

construe a plaintiff’s complaint in the face of a motion to dismiss is not the

equivalent of a duty to re-write it for [the plaintiff].” Peterson v. Atlanta Hous.
12

Auth., 998 F.2d 904, 912 (11th Cir. 1993).

Rule 8(a) requires that the complaint contain only “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.

P. 8(a). A plaintiff need not plead specific facts for every element of a cause of

action. See Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th

Cir. 2001); St. Joseph’s Hosp., Inc. v. Hosp. Corp. of Am., 795 F.2d 948, 954 (11th

Cir.1986). However, a complaint must still contain either direct or inferential

allegations respecting all material elements of a cause of action. See Aware

Woman Ctr., 253 F.3d at 684; In re Plywood Antitrust Litig., 655 F.2d 627, 641

(5th Cir. Unit A Sept. 1981). “Thus, at a minimum, notice pleading requires that a

complaint contain inferential allegations from which we can identify each of the

material elements necessary to sustain a recovery under some viable legal theory.” 

Aware Woman Ctr., 253 F.3d at 684 (emphasis added).

2. Stating a Claim under the SCA

The SCA was included as Title II of the Electronic Communications Privacy

Act of 1986 (“ECPA”), Pub. L. No. 99-508, 100 Stat. 1848 (codified as amended

in scattered sections of 18 U.S.C.). The ECPA was enacted to update the then

existing federal wiretapping law to protect the privacy of the growing number of

electronic communications. See 132 Cong. Rec. H4039 (1986) (statement of Rep.
13

Kastenmeier). Since its inception, the ECPA provided “several clear exceptions to

the bar on interception so as to leave unaffected electronic communication made

through an electronic communication system designed so that such communication

is readily available to the public .” 131 Cong. Rec. S11790-03 (1985) (statement

of Sen. Leahy on a bill that was the precursor to the ECPA); see also 131 Cong.

Rec. E4128 (1985) (statement of Rep. Kastenmeier on the same bill). 

Indeed, the ECPA explicitly reads, “It shall not be unlawful under this

chapter or chapter 121 of this title for any person–(i) to intercept or access an

electronic communication made through an electronic communication system that

is configured so that such electronic communication is readily accessible to the

general public.” 18 U.S.C. § 2511(2)(g) (emphasis added). Chapter 121 refers to

the SCA. ECPA § 201. The legislative history and the statutory structure clearly

show that Congress did not intend to criminalize or create civil liability for acts of

individuals who “intercept” or “access” communications that are otherwise readily

accessible by the general public.

Through the World Wide Web, individuals can easily and readily access

websites hosted throughout the world. Given the Web’s ubiquitous and public

nature, it becomes increasingly important in cases concerning electronic

communications available through the Web for a plaintiff to demonstrate that those
14

communications are not readily accessible. If by simply clicking a hypertext link,

after ignoring an express warning, on an otherwise publicly accessible webpage,

one is liable under the SCA, then the floodgates of litigation would open and the

merely curious would be prosecuted. We find no intent by Congress to so permit. 

Thus, the requirement that the electronic communication not be readily accessible

by the general public is material and essential to recovery under the SCA. Cf.

Aware Woman Ctr., 253 F.3d at 683-84 (treating the motive requirement of the

Freedom of Access to Clinic Entrances Act (“FACE”) as an essential element of a

FACE claim because the motive requirement filters out conduct that Congress

believes is not covered by FACE).

In addition to the “readily accessible” element, a valid civil complaint under

the SCA must allege a violation of one of its provisions. See 18 U.S.C. 2707(a)

(“[Any person] aggrieved by any violation of this chapter in which the conduct

constituting the violation is engaged in with a knowing or intentional state of mind

may, in a civil action, recover . . . .”). The provision at issue in the present case

states, “[Whoever] (1) intentionally accesses without authorization a facility

through which an electronic communication service is provided; or (2)

intentionally exceeds an authorization to access that facility; and thereby obtains . .

. a wire or electronic communication while it is in electronic storage [violates the
15

SCA].” 18 U.S.C. § 2701(a). 

3. Snow’s Complaint

To survive a motion to dismiss, Snow must have alleged, at a minimum,

facts from which we could infer that his electronic bulletin board was not readily

accessible to the general public. Snow states that his website was a “noncommercial private support group” website. This conclusory allegation, however,

provides little insight into whether the website is configured so that the

communications in the electronic bulletin board are not readily accessible. Snow

proceeds in his complaint to describe the process by which one gains access to the

electronic bulletin board. 

According to the complaint, a person must register and create a password to

enter into and participate in the electronic bulletin board. Before registering and

logging into the electronic bulletin board, the proposed registrant is shown a notice

that requires the registrant to affirm his non-association with DirecTV. Two

options appear at the end of the notice: “I Agree to these terms” and “I do not agree

to these terms.” “If a person clicks on ‘I Agree to these terms’, that person is

allowed to enter into, view and participate in the electronic bulletin board within

the SCE Web site.” In sum, to access the electronic bulletin board messages, all
 At oral argument, Snow stated that he prevented individuals from accessing his website 7

who used web-based, anonymous email accounts or computers with IP addresses assigned to

DirecTV. This argument does not change our analysis. Such facts cannot be inferred from the

complaint, which only alleges that “the integrity of the Web site and the privacy of its visitors”

was maintained by warning notices forbidding access by DirecTV and its agents.

16

one needs to do is register, create a password, and click “I Agree to these terms.” 

7

Nothing inherent in any of these steps prompts us to infer that access by the

general public was restricted. Indeed, the facts alleged in Snow’s complaint lead 

us to infer the opposite. We conclude this case is distinguishable from Konop v.

Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002), a Ninth Circuit case upon

which Snow relies heavily. In Konop, plaintiff Konop created a list of Hawaiian

Airlines employees who were eligible to access the website. Id. at 872. To gain

access, one had to enter an eligible employee’s name, create a password, and click

“SUBMIT” indicating acceptance of the terms and conditions, which prohibited

users from disclosing the website’s contents and prohibited viewing by Hawaiian

Airlines management. Id. at 872-73. In contrast, Snow alleged that registrants

needed only to create a password and acknowledge that they were not associated

with DirecTV or another prohibited entity. Konop’s website, unlike Snow’s,

required users wishing to view the electronic bulletin board’s contents to have

knowledge (an eligible employee’s name) that was not publicly available. Snow

had no such limitation. In order to be protected by the SCA, an Internet website
17

must be configured in some way so as to limit ready access by the general public. 

To be clear, we do not require a plaintiff to “plead in grave detail” all of a

website’s restrictive technical configurations, as intimated by Snow’s attorney at

oral argument. Here, a short simple statement that the plaintiff screens the

registrants before granting access may have been sufficient to infer that the website

was not configured to be readily accessible to the general public. However, Snow

failed to make this or any remotely similar allegation. Instead, Snow’s allegations

describe, in essence, a self-screening methodology by which those who are not the

website’s intended users would voluntarily excuse themselves. Because this is

insufficient to draw an inference that the website is not readily accessible to the

general public, Snow’s complaint fails to state a cause of action and it was proper

to dismiss it.

Accordingly, we affirm the district court’s grant of the defendants’ motion to

dismiss for failure to state a claim.

IV. CONCLUSION

We affirm both the district court’s grant of Yarmuth’s motion to dismiss for

lack of personal jurisdiction and the defendants’ joint motion to dismiss for failure

to state a claim.

AFFIRMED.