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.