MOTION to Dismiss for Lack of Jurisdiction

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.

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-of-state corporations, and do not have any physical presence in the State of 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

[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.]

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).

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 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 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 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.

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

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 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.

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, 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:
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.

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 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.

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.

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

RESPONSE to Motion to Dismiss for Lack of Jurisdiction

IN THE UNITED STATES DISTRICT COURT
FOR THE 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, I-X,

Defendants,

Plaintiff James S. Gordon, Jr., by and through his attorney of record, responds to Defendants' Motion To Dismiss as follows:

1. Introduction

Defendants seek to dismiss Plaintiff's Complaint against them, claiming lack of personal jurisdiction pursuant to CR I2(b)(2). Plaintiff asserts that personal jurisdiction clearly attaches to Defendant in the State of Washington. To hold differently would effectively eviscerate the Washington CEMA (RCW 19.190 et seq.) by preventing Washington citizens as well as the State Attorney General from applying the State's anti-spam laws to out-of-state spammers, such as Defendant here.

This case illustrates the evolving nature of the law of personal jurisdiction in response to new developments in technology. The trend in recent years has become quite clear, indicating that courts around the country, and in particular Washington courts, both state and federal, have been holding in favor of personal jurisdiction in cases involving contacts, including commercial emails, via the internet. (See Declaration of Robert J. Siegel and decisions attached thereto, including: two decisions by this Court, Judge Thomas Zilly at Exhibit "A"; two recent decisions from the U.S. Eastern District court of Washington at Exhibit "B"; a motion and decision from the Washington Superior Court For King County, Judge Hilyer, denying a similar motion to dismiss by this same Defendant, Virtumundo, as Exhibit "C"). Defendants' arguments are wholly without merit.

Facts

(For a complete statement of the facts discussed herein See Subjoined Declaration of James S. Gordon, Jr.)

On September 8, 2003, Plaintiff Gordon received a commercial email from Defendant Virtumundo with the subject line "NFL Sunday Ticket and 4 Free Months of DirecTV" purportedly advertising satellite television subscriptions for sale over the internet, and containing, in fine print, the misrepresentation that "You received this email because you signed up at one of Virtumundo's websites...", an allegation that Plaintiff wholly denies. This email was sent to his "james@gordonworks.com" email address, at his domain Gordonworks.com.

Mr. Gordon, as he routinely does, replied to the email and informed Defendants that he was a Washington State resident, and to cease and desist sending any further email. Subsequently, and incredibly, Mr. Gordon received over 6,000 more emails from Defendants at this email address, transmitted to and through his interactive computer service, and through his LLC's domain server. (Mr. Gordon's LLC, Omni Innovations, LLC has been added as a party plaintiff to this lawsuit by the filing of a First Amended Complaint concurrently herewith, a copy of which is attached to the subjoined Declaration of Robert J. Siegel).

Many of the offending emails contained a statement claiming that he had "subscribed" to receive commercial email, and that if he did nothing further, he would begin receiving more commercial email from Virtumundo. In response, Mr. Gordon sent an email to Virtumundo, informing it that he was a Washington State resident, that the email was in violation of RCW 19.190 and RCW 19.86, and requested that Virtumundo cease and desist sending all email, either sent by Virtumundo or by anyone else on its behalf. The email also included a list of all email addresses owned by Mr. Gordon, and specified that if Virtumundo continued sending him email, it agreed to submit itself to the jurisdiction and venue of the courts of Washington. This email did not "bounce," indicating that Virtumundo received the email.

Mr. Gordon subsequently sent numerous other cease and desist emails to Virtumundo, including the same message, literally thousands of times! Despite the repeated notices and warnings sent to Defendants, instead of ceasing and desisting its commercial email campaign to Mr. Gordon as he requested, Virtumundo continued to send email after email to him, advertising a wide array of products and services. See Declaration of James Gordon. The notices sent by Mr. Gordon to Defendants were much clearer and specific than would be a questionable request to "unsubscribe"1.

[1 Plaintiff notes that the use of the term "unsubscribe" implies that he "subscribed" to receive unlawful email in the first place, which Mr. Gordon categorically denies having done.]

After his numerous attempts failed to stop the flow of unsolicited email from Defendants, Mr. Gordon served Defendants with this lawsuit. As is apparent from the declarations submitted in support of Defendants' Motion, and notwithstanding the objectionable nature of same, Defendants admit to selling goods and services through commercial email transmitted through the internet, and nowhere do they flatly deny that Plaintiff received the emails in question from them. Nonetheless, Defendants make the untenable claim that they have not subjected themselves to the jurisdiction of the Washington courts because they do not have the requisite "minimal contacts" with this State, and/or "purposeful availment" on their behalf cannot be established. Plaintiff submits that, in light of the well- established law in this area, as set forth below, such a position is specious, and borders on the frivolous!

II. Argument and Authority

A. The Court Should Consider Only Plaintiffs Factual Allegations.

When a district court acts on a defendant's motion to dismiss under Rule 12(b)(2) without holding an evidentiary hearing, the plaintiff need make only a prima facie showing of jurisdictional facts to withstand the motion to dismiss. Ballard v. Savage et al, 65 F.3d 1495 (1995). "[T]he plaintiff need only demonstrate facts that if true would support jurisdiction over the defendant." Id, citing Data Disc, Inc. v. Systems Technology Assos., 557 F.2d 1280, 1285 (9th Cir. 1977). The facts are viewed in the light most favorable to the Plaintiffs. Compuserve Inc. v Patterson, 89 F.3d 1257, 1262, (6th' Cir. 1996), citing Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir. 1991). "Furthermore, a `court disposing of a 12(b)(2) motion does not weigh the controverting assertions of the party seeking dismissal,' ... because we want `to prevent non-resident defendants from regularly avoiding personal jurisdiction simply by filing an affidavit denying all jurisdictional facts.' Id at 1459 (emphasis added). Dismissal in this procedural posture is proper only if all the specific facts which the plaintiff alleges collectively fail to state a prima facie case for jurisdiction. Id. Unless directly controverted, the plaintiff's version of the facts is taken as true. Doe v. Unocal, Corp., 248 F. 3d 915, 922 (9th Cir. 2001).

Conflicts in the evidence set forth in the parties' affidavits must be resolved in the plaintiff's favor. Id. Here, Plaintiff has clearly met his burden, and Defendant's Motion should be dismissed.

B. The Statements Of Defendants' Corporate Counsel Should Be Stricken And/Or Ignored.

It likely has not gone unnoticed by the Court that the only sworn statements submitted on behalf of both defendants are not from corporate officers, but rather from their respective corporate counsel, Messrs. Geroe and Brandt. Notwithstanding the highly unusual, and unreliable nature of such testimony, the Court should take particular notice of the fact that nowhere in the Defendants' brief (nor in the sworn statement of Defendant Virtumundo's corporate counsel) does the Defendant ever deny sending Spam to Mr. Gordon. This omission is particularly telling given the fact that the entire basis of the Plaintiffs complaint is the allegation that the Defendant sent thousands of unsolicited, and otherwise unlawful emails to Mr. Gordon. Instead, the Defendant's counsel simply ignores the issue, essentially arguing that "there was no intentional contact by Defendant with anyone in Washington State", and that they, Defendants, intentionally don't target Washington residents (while claiming they can't ascertain the actual location of the email addresses they regularly send commercial emails to), as if the thousands of Defendant's illegal spams were not "contacts", and were not "intentional".

As this Court is well aware, intent has nothing to do with the issue and is nowhere required in order to violate the Washington CEMA. The sworn testimony of the Defendant's corporate counsel is also glaringly equivocal, admitting that a certain amount of their revenue is indeed derived from transactions/sales in Washington, while disingenuously attempting to minimize that admission by stating an unsupported, and uncertified revenue figure completely out of context, i.e., the actual dollar amounts derived from Washington transactions. Thus, we have no way to know just how many dollars .04%, and .16% of Defendants' revenue these percentages actually represent. Nonetheless, for these purposes, it matters not whether these numbers represent millions of dollars, or mere pennies. Neither Defendants' intent nor their revenue is relevant to the determination of whether this Court may exercise personal jurisdiction over them.

Notwithstanding the foregoing, Plaintiff moves this Court to ignore the factual allegations made by "Defendant's Motion " and strike the allegations contained within the attached affidavits upon which its entire motion is necessarily, albeit improperly, founded, and consider only the collective claims made by Plaintiff: here, in the subjoined Declarations, attached exhibits, and in his Complaint and First Amended Complaint.

C. Plaintiffs Prima Facie Facts Clearly Support Personal Jurisdiction.

In Washington, a traditional analysis of jurisdiction under its long-arm statute involves two separate issues: (1) does the statutory language purport to extend jurisdiction, and (2) would imposing jurisdiction violate constitutional principles. Grange Insurance Association v. Washington, 110 Wn.2d 752, 757 P.2d 933 (1988), citing Werner v. Werner, 84 Wn.2d 360, 364, 526 P.2d 370 (1974).

1. Statutory authority

Plaintiff alleges that the Defendant engaged in conduct in violation of RCW 19.190 et seq., the Washington Commercial Electronic Mail Act (CEMA). Long arm jurisdiction under this act is specifically granted under RCW 3.66.020. Plaintiffs First Amended Complaint also adds allegations and causes of action under: The Federal Can-Spam Act of 2003, 15 U.S.C. §7701, et seq; the Washington State Identity Crimes Act, RCW 9.35 et seq.; the Washington Deceptive Offers Act, RCW 19.170 et seq.; and for Injunctive Relief.

Further statutory authority is granted pursuant to RCW 19.86, which provides that violations of the CEMA statute constitute per-se violations of the Consumer Protection Act. Under RCW 19.86.160, persons who fall within the service provisions of the CPA are "deemed to have thereby submitted themselves to the jurisdiction of the courts of this state within the meaning of RCW 4.28.180 and RCW 4.28.185."

Thus, Washington's long arm statute clearly extends jurisdiction over the Defendant through the Consumer Protection Act. (See State v Readers Digest Association, 81 Wn. 2d 259, 277 (1991), which held that the performance of an unfair trade practice in Washington, even though by a foreign corporation which had no agents, employees, offices or property in the state, was alone sufficient to establish jurisdiction.)

Further statutory authority is extended by RCW 4.28.185(b), which extends jurisdiction over persons who commit tortious acts in Washington. Federal Courts have ruled that sending unsolicited email constitutes the common law tort of trespass to chattels. America Online Inc. v. LCGM In, 46 F. Supp. 2d 444, 451-452 (E.D. VA, 1998). Washington State courts have ruled that deceptive acts of consumer fraud of the type addressed under the CPA may constitute "tortious" acts for the purposes of extending long-arm jurisdiction over an out of state defendant.

Authority is also extended by RCW 4.28.185(a), which extends jurisdiction over any person who transacts business within this state. Further, in addition to the many thousands of unlawful commercial email solicitations received by Plaintiff, it is expected that discovery will reveal the extent of Defendants' true business transactions in this State, and will show substantial sales that Defendants have made in the State of Washington. (Defendants have already admitted that they do transact business on the internet in this State by virtue of statements contained in their supporting Affidavits indicating that a percentage of their sales, albeit an unspecified amount, are to Washington residents).

2. Due process

The Ninth Circuit employs a three-part test to determine if a district court can exercise specific jurisdiction:
(1) The nonresident defendant 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 of its laws; (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.
Panavision v. Toeppen, 141 F.3d 1316, 1320 (1998).

(a) The First Element - Purposeful Availment.

The purposeful availment requirement ensures that a nonresident defendant will not be hauled into court based upon "random, fortuitous or attenuated" contacts with the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 85 L. Ed. 2d 528, 105 S. Ct. 2174 (1985). This requirement is satisfied if the defendant "has taken deliberate action" toward the forum state. Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995). "Fulfilling this step is not necessarily precluded by a lack of physical contacts with the forum. Rather, `within the rubric of 'purposeful availment' the [Supreme] Court has allowed the exercise of jurisdiction over a defendant whose only 'contact' with the forum state is the 'purposeful direction' of a foreign act having effect in the forum state."' Core-Vent Corp v. Nobel Industries, 11 F.3d 1482,1485, (1993), citing Haisten v. Grass Valley Medical Reimbursement Fund, 784 F.2d 1392, 1397 (9th Cir. 1986). The "effects test" was established in Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984) in which the Supreme Court held that the inquiry into whether a defendant purposefully availed itself on the forum state slightly shifts when the application turns on a tort claim.

Defendant relies heavily on Cybersell v. C bbersel1, 130 F.3d 414 (1997) arguing that somehow the purposeful transmission of thousands (and likely millions) of commercial emails is the equivalent of operating a passive advertisement on a website (the act in question in Cybersell). While passive internet advertising alone may not be sufficient to subject a party to jurisdiction in another state, when that party "purposefully (albeit electronically) directed his activity to the forum state," such is considered "something more" and sufficient to satisfy the purposeful availment requirement. Panavision, at 1321, citing Cybersell Inc. v. Cybersell Inc., 130 F.3d 414 (9" Cir. 1997), and cases attached in Exhibit "A". Numerous courts have found that email is in fact just such a "purposeful" act, as the sender must affirmatively enter the recipients address into a program, formulate a message, and direct the message to the targeted address by pushing a "send" button, or by affirmatively and purposefully programming specific software to accomplish those acts.

In any event, Defendant's ownership and operation of a website advertising its spamming abilities is not alleged as the basis for jurisdiction here. It makes no difference whatsoever whether Defendants' websites are "active" or "passive," or whether Defendants even operate a website at all. It is the intentional and purposeful direction of thousands of emails to Plaintiff, particularly after repeated, direct notices to cease and desist that constitutes purposeful availment here.

The fact that Mr. Gordon gave direct notice to Virtumundo to cease and desist is further dispositive here. The U. S. Supreme Court has held in the context of junk mail that a mailer's right to communicate is circumscribed by an affirmative act of the addressee giving notice that he wishes no further mailings from that mailer. Rowan v. U.S.P.S., 397 U.S. 728, 737, 90 S. Ct. 1484, 25 L. Ed. 2d 736 (1970). They noted the importance of the long held right of "a householder to bar, by order or notice, solicitors, hawkers, and peddlers from his property." Id, citing Hall v. Commonwealth, 188 Va. 72, 49 S. E. 2d 369, appeal dismissed, 335 U.S. 875 (1948). Chief Justice Burger in his opinion stated:
"We therefore categorically reject the argument that a vendor has a right under the Constitution or otherwise to send unwanted material into the home of another. If this prohibition operates to impede the flow of even valid ideas, the answer is that no one has a right to press even "good" ideas on an unwilling recipient. . . . The asserted right of a mailer, we repeat, stops at the outer boundary of every person's domain."
Rowan, at 738.

(Although difficult to understand why, Defendants cite to a recent case decided by the Supreme Court of Utah, Fenn v. Mleads Enterprises, Inc., 2006 UT 8; 545 Utah Adv. Rep. 7. Reliance on this case is patently misplaced for several reasons. First, that case involved a Utah citizen, Ms. Fenn, who sought to sue a notorious spammer under Utah's anti-spam statute, which it should be noted is glaringly less aggressive in its scope and intent than the Washington CEMA. That case involved the sending of only one (1) single email by defendant there, unlike the thousands received by Plaintiff here. And further, there was no allegation in that case that the Plaintiff specifically, and repeatedly (thousands of times) demanded that defendant cease and desist from sending further emails, nor did she apparently notify that defendant of her address and residency in Utah, as Plaintiff also did repeatedly in the instant case. The Utah court focused there on the paucity of evidence, i.e., only one (1) single email, and the fact that there was no "interactivity", to establish the requisite minimum contacts, i.e., "plaintiff never responded to the email nor did she contact Mleads through any other means." stating: "Although the possibility existed for an exchange to occur, because it did not, these facts fall under the type of interactive activity for which the exercise of personal jurisdiction is improper," id at p. 5. Thus, even the Utah court left open the possibility of finding personal jurisdiction over a spammer defendant where, as here, the interactive activity factor was satisfied. Further distinguishing Fenn from the instant case, the Washington CEMA includes a presumption that senders of commercial emails have knowledge of their recipients' state of residence if this information is available from the domain owner of the email address, which is the case here with plaintiff Gordon's domain and email addresses. Of course, this alleged fact by Mr. Gordon must be assumed to be true under a CR 12(B)(2) analysis, and thus, contrary to its self-serving protestations, Defendants here are presumed to have had knowledge of Mr. Gordon's Washington residency. Unlike the Washington CEMA, however, the Utah statute at issue in Fenn contained no such provision.)

Defendant also claims that purposeful availment is lacking because Mr. Gordon fortuitously opened his email from within Washington, and that it lacks the ability to differentiate where an email will be accessed. An identical argument was raised by the defendant in Verizon v. Ralsky, and that court utterly rejected the argument. That court cited Internet Doorway, Inc. v. Parks, 123 F.Supp.2d 773, 779-80, (S.D. Miss 2001), and held that "[n]otwithstanding that [the defendant] had indiscriminately transmitted her e-mails all over the world,...'by sending an e-mail solicitation to the far reaches of the earth for pecuniary gain, one does so at her own peril, and cannot then claim that it is not reasonably foreseeable that she will be haled into court in a distant jurisdiction to answer for the ramifications of that solicitation." Verizon, at 615-616.

That court also noted that "one of the key factors courts have focused on in finding purposeful availment of a forum state concerning conduct over the internet is whether the activity was driven by pecuniary gain rather than personal purposes." Id, citing Internet Door at 779-80. Such commercial email transmissions were held to be "knowing and repeated." Id, at 616.

Here, Virtumundo also purposefully and knowingly directed thousands, and likely millions of commercial e-mails to Washington residents. All of them were exclusively for its own pecuniary gain, as it was hired to send the commercial email to market certain products on behalf of its "marketing partners".

Furthermore, it makes no difference whatsoever where Mr. Gordon opens the emails in question. The CEMA makes no reference to where the email is opened in determining whether it violates the statute, but rather only requires that the email address is held by a resident of Washington State. RCW 19.190.020(1). Residents of Washington can access their email accounts from anywhere in the world, and if that email violates the statute, they can bring suit. It would be ridiculous to limit their right of action only if they happen to be within the borders of the state when they choose to open their inboxes.

Although the Washington Supreme Court has not directly addressed the jurisdictional question now before this Court, State v. Heckel, 122 Wn. App. 60, 93 P.3d 189 (2004), and State v. Heckel, 143 Wn.2d 824 at 840 (2001), makes it abundantly clear how the Washington courts view personal jurisdiction in the context of unlawful CEMA violations. There, on appeal from the trial court's grant of summary judgment in favor of the State, defendant/appellant Heckel, as Defendants do here, argued that the State had failed to establish that he had "knowledge", or should have known, that any particular email he sent was directed to a Washington resident. The Court of Appeals dispensed with that argument stating:
"Again, if we were to interpret the Act the way Heckel suggests, no spammer sending deceptive e-mail could ever violate the Act as long as he were to use a bulk e-mail program to harvest large numbers of addresses without regard to residence of the owners, because he could always claim that he had no specific knowledge about particular recipients,"
and further,
"The State urges this court to adopt the reasoning of the trial court and at least two federal district courts and hold that a spammer sending millions of e-mails over the Internet has reason to know that he could be "ha[u]led into court in a distant jurisdiction to answer for the ramifications of that solicitation." Internet Doorway, Inc. v. Parks, 138 F.Supp.2d 773, 779-80 (S.D.Miss.2001); Verizon Online Servs., Inc. v. Ralsky, 203 F.Supp.2d 601, 618 (E.D.Va.2002).
Heckel urges a rejection of this "statistical argument," arguing that the Act requires a "particular" or "specific" e-mail address of a Washington resident and that reasonable minds could differ on whether sending any particular number of e-mail messages must statistically impose a conclusive presumption that some of those would be directed to the addresses of Washington residents. But Heckel does not dispute that he sent between 100,000 and 1,000,000 messages per week over a period of at least four months. Based on these numbers, we agree with the State and conclude that Heckel had reason to know that his spam would be directed to Washington residents," Id. at p. 69.

Under the CEMA a person knows that the recipient of an email is a Washington resident "if that information is available, upon request, from the registrant of the internet domain name contained in the recipient's electronic mail address." RCW § 19.190.020(2), and further, knowledge is imputed if residency information of an email recipient is available from the domain name registrant. However, in Heckel the Washington State Court of Appeals Division I held that this is not the exclusive way of demonstrating knowledge. State v. Heckel, 122 Wash.App. 60, 93 P.3d 189 (2004) ("Heckel II"), review denied, 153 Wash.2d 1021, 108 P.3d 1229 (2005). The Court in Heckel II held that there were numerous ways that a spammer knew, or had reason to know, that email addresses to which he sent his span were held by Washington residents, including: 1) proof that the recipient's email address was included in the Washington Email Registry co-sponsored by the Washington Attorney General and the Washington Association of Internet Service Providers ("the WAISP Registry"); and 2) proof that the spammer sent millions of emails thereby putting him on notice that a substantial volume would be received by Washington residents. Id. at 67-70, 93 P.3d 189.

The comments and holdings in both Heckel I and 11 take the wind out of Defendants' arguments here. Here, as in Heckel, although short on details as to how many emails Defendants send out each day, week, month, they admit that they do in fact regularly send commercial emails out over the internet, and that some portion of their revenue is derived from transactions in the State of Washington. Thus, it is a reasonable assumption to make, taking Plaintiff's allegations as true, that Defendants are engaged in sending at least the number of emails Heckel did, but likely many times more. Moreover, the Heckel decisions poignantly suggest that the analytical factors of the CEMA must be on the spammers who send commercial email to Washington residents, and not on where the spam may be accessed. Accordingly, likewise, it is both reasonable and proper to impute to them the knowledge that they would have been sending some of those emails to computers owned by Washington residents, and domiciled in the State of Washington.

Virtumundo disregarded Mr. Gordon's repeated requests to stop sending him email, purposefully choosing to ignore him. They literally inundated him with thousands of emails. This Court should therefore find that Defendant has purposefully availed itself of the privilege of conducting its commercial activities in Washington, and that Plaintiff has established the first element of the test for personal jurisdiction.

(b) The Second Element - The claim arises out of or results from the defendant's forum-related activities.

The second requirement for specific jurisdiction is that the contacts constituting personal availment must be the ones that give rise to the current suit. The Ninth Circuit measures this requirement in terms of "but for" causation. Zeigler v. Indian River County, 64 F.3d 470, 474 (9th Cir. 1995). Here, it is clear that but for Defendant's emailing to Plaintiff, there would be no violation of the Washington Commercial Electronic Mail Act and Consumer Protection Act, and thus no suit. Defendant directed its emails to email addresses it knew or should have known belonged to a Washington resident; a Washington resident received its emails; and those emails violated a Washington statute in Washington. Thus, the second element of the test is easily met.

(c) The Third Element - The exercise of Washington jurisdiction is reasonable.

The final requirement for specific jurisdiction is reasonableness. For jurisdiction to be reasonable, it must comport with fair play and substantial justice. Burger King Corp. v. Rudzeicz, 471 U.S.462, 476, 85 L. Ed. 2d 528, 105 S. Ct. 2174 (1985). Burger King explicitly places upon the defendant the burden of demonstrating unreasonableness and requires the defendant to put on a "compelling case." Id, at 476-77, emphasis added (See also Core-Vent, at 1487, Panavision at 1322.)

Defendant has failed to establish any case whatsoever, much less a "compelling case," that the exercise of Washington jurisdiction is somehow "unreasonable. The Ninth Circuit uses a seven factor test to determine reasonableness:
(1) the extent of a defendant's purposeful interjection; (2) the burden on the defendant in defending in the forum; (3) the extent of 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 plaintiffs interest in convenient and effective relief; and (7) the existence of an alternative forum.
Panavision, at 1323, citing Burger King, 471 U.S. at 476-77.

No one factor is dispositive; a court must balance all seven. Core-Vent, 11 F.3d at 1488. Defendant has not addressed any of the seven factors.

Plaintiff asserts for the following reasons that jurisdiction is reasonable:

i. Purposeful interjection. Here, the degree of interjection is substantial. Defendant has sent over 5,000 emails to Plaintiff alone that specifically violate the CEMA, and likely an untold number of other emails to other Washington residents. In fact, as Mr. Gordon states in his Declaration, even after this action was filed, Defendants continued to send unlawful emails to him.

ii: Defendants burden in litigating. While a factor, unless the "inconvenience is so great as to constitute a deprivation of due process, it will not overcome clear justifications for the exercise of jurisdiction." Caruth v. International Psychoanalytical Ass'n, 59 F.3d 126, 128-29 (9th Cir. 1995). Defendant's burden would be relatively light litigating in Washington (see v, below).

Virtumundo advertises itself as a leading email marketing company, while Plaintiff is an individual, and small sole proprietorship business. Virtumundo has litigated in Washington before, and Washington State courts have asserted jurisdiction over it. Further, as the Washington Supreme Court has held, "the local benefits of [Chapter 19.190 RCW] outweighs any conceivable burdens the Act places on those sending commercial e-mail messages." State v. Heckel, 143 Wn.2d 824 at 840 (2001).

iii: Sovereignty. This factor concerns the extent to which this Court's exercise of jurisdiction in Washington would conflict with the sovereignty of Virtumundo's home state of Missouri. This action concerns the violation of a Washington statute in Washington.

iv: The Forum state's interest. "[T]he protection of legal rights of Washington residents is a legitimate state interest." Sorb Oil Corp. v. Batalla Corp., 32 Wn.App 296, 301, 647 P.2d 514 (1982). Plaintiff is a Washington state resident. The Washington legislature found that the practices covered by the Washington Commercial Electronic Mailing Act are "matters vitally affecting the public interest for the purpose of applying the consumer protection act, chapter 19.86 RCW." RCW 19.190.030(3).

v: Efficient resolution. This factor focuses on the location of the evidence and witnesses. There is limited evidence in the present case, which primarily consists of e-mails and other electronic media that can easily and economically be reduced to CD-ROMs, and/or transmitted electronically. Few witnesses will need to be called.

vi: Convenient and effective relief for Plaintiff. It will be convenient for Plaintiff to litigate this matter in Washington, and would be unduly burdensome for him to litigate elsewhere, including in Defendants' home state.

vii: Alternate forum. The Defendant could assert that it would be preferable to try this matter in Missouri, applying Washington law. But, both public and private interests weigh heavily in Plaintiff's favor here. The evidence, consisting of the actual illegal email transmissions, is in Washington. Public factors compel a Washington forum: it is desirable to have this controversy decided in the locale where people most affected by it, Washington residents reside. Jury duty should not be imposed on Missouri residents, with no relation to the litigation, to decide a violation of Washington law. "There is an appropriateness ... in having the trial... in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself." J. H. Baxter & Co. v. Central Natl. Ins. Co., 105 Wn. App 657, 20 P.3d 967 (2001).

Accordingly, the exercise of jurisdiction in Washington is overwhelmingly reasonable.
CONCLUSION

For the reasons stated above, Plaintiff has established clear statutory authority for an exercise of personal jurisdiction over Defendants, and has satisfied all due process requirements: Defendants have purposefully availed themselves of the privilege of conducting activities within the forum state of Washington, thereby invoking the benefits and protections of its laws; the claim arises out of that activity; and the exercise of jurisdiction is reasonable. As such, Plaintiff has established jurisdiction over Defendants in Washington, and Defendants' Motion should be denied.