Snow v. Directv, Inc.

• Decision Date: 01 June 2006
• Docket Number: No. 05-13687.,05-13687.
• Parties: Michael SNOW, Plaintiff-Appellant, v. DIRECTV, INC., a California corporation, Stump, Storey, Callahan, Dietrich & Spears, P.A., a Florida Professional Association, Yarmuth, Wilsdon & Calfo, PLLC, a Washington Professional Limited Liability Company, John Does, 1-25, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

450 F.3d 1314

Michael SNOW, Plaintiff-Appellant, v. DIRECTV, INC., a California corporation, Stump, Storey, Callahan, Dietrich & Spears, P.A., a Florida Professional Association, Yarmuth, Wilsdon & Calfo, PLLC, a Washington Professional Limited Liability Company, John Does, 1-25, Defendants-Appellees.

No. 05-13687.

United States Court of Appeals, Eleventh Circuit.

June 1, 2006.

Albert A. Zakarian, Lithia, FL, Robert S. Apgood, CarpeLaw, PLLC, Seattle, WA, for Snow.

Lauren Elizabeth Bush, Marc J. Zwillinger, Christian S. Genetski, Sonnenschein, Nath & Rosenthal, LLP, Washington, DC, for Defendants-Appellees.

Cindy A. Cohn, Electronic Frontier Foundation, San Francisco, CA, for Amicus Curiae.

Appeal from the United States District Court for the Middle District of Florida.

Before CARNES, WILSON and PRYOR, Circuit Judges.

WILSON, Circuit Judge:

Michael Snow brought an action under the Stored Communications Act (the "SCA"), 18 U.S.C. § 2701 et seq., against DirecTV, Inc., a California company; Stump, Story, Callahan, Dietrich & Spears P.A. ("Stump"), a Florida law firm; Yarmuth, Wilsdon & Calfo, PLLC ("Yarmuth"), a State of Washington law firm; and 25 unknown individuals. Snow alleged that employees of DirecTV, Stump, and Yarmuth accessed his website's electronic bulletin board without authorization. The district court dismissed the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, reasoning that electronic bulletin boards are not "in electronic storage," and, thus, are not protected by the SCA. See 18 U.S.C. §§ 2510(17), 2701. We agree with the district court that Snow's complaint fails to state a cause of action for which relief can be granted, but on a different ground: Snow's complaint fails to allege, as the SCA requires, that the website was configured to not be readily accessible by the general public. As to Yarmuth's dismissal for lack of personal jurisdiction, we also affirm.

I. BACKGROUND

DirecTV has been involved in a nationwide effort to stop the pirating of its encrypted satellite transmissions by individuals with "pirate access devices" who intercept the transmissions without paying fees to DirecTV. DirecTV hired Yarmuth, a law firm with its sole office in Seattle, Washington, to help with the effort. As part of its strategy, DirecTV initiated thousands of anti-piracy actions, hundreds of which were filed in Florida federal district courts.¹ Yarmuth occasionally has represented DirecTV in Florida courts alongside local Florida counsel retained by DirecTV. Stump, a Florida law firm, also has represented DirecTV in Florida anti-piracy actions, one of which involved Snow as a defendant. DirecTV's action against Snow was eventually dismissed without prejudice.

Snow's complaint alleges that he created his non-commercial website, http://www.stop-corporate-extortion.com (the "SCE website" or "Snow's website"), as a "private support group" website for "individuals who have been, are being, or will be sued by any Corporate entity." Snow's website allows its members to share messages with each other through an electronic bulletin board. The language on the website's homepage "expressly forbids access by DIRECTV and its agents." To gain access, one must register, create a password, and agree to additional terms that affirm the non-association with DirecTV. A person clicking "I Agree to these terms" may enter into, view, and participate in the electronic bulletin board. A person clicking "I do not agree to these terms" is re-directed to the registration page and cannot proceed to the electronic bulletin board.

On multiple occasions, Snow alleges, employees of DirecTV, Yarmuth, and Stump accessed his website and viewed its electronic bulletin board, in excess of their authority. After discovering the unauthorized accesses, Snow filed his complaint.

Yarmuth moved for dismissal pursuant to Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction. The other defendants also moved for dismissal pursuant to Rule 12(b)(6), claiming that Snow failed to state a cause of action upon which relief can be granted because, as a matter of law, the messages stored on Snow's electronic bulletin board are not electronic communications in electronic storage as contemplated by the SCA.² In addition to granting both motions to dismiss, the district court denied a request by Snow for discovery on the jurisdiction issue. This appeal followed.

II. STANDARDS OF REVIEW

We review de novo a district court's grant of a motion to dismiss for failure to state a claim. Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1187 (11th Cir. 2002).

We review the district court's determination that it did not have personal jurisdiction over a defendant de novo. Meier ex rel. Meier v. Sun Int'l Hotels, Ltd., 288 F.3d 1264, 1268 (11th Cir.2002). When, as here, a district court does not conduct a discretionary evidentiary hearing on a Rule 12(b)(2) motion, the plaintiff must establish a prima facie case of personal jurisdiction over a nonresident defendant by presenting enough evidence to withstand a motion for directed verdict. Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir.1990). "The district court must accept the facts alleged in the complaint as true, to the extent they are uncontroverted by the defendant's affidavits." Id. Where the plaintiff's complaint and the defendant's affidavits conflict, the district court must construe all reasonable inferences in the plaintiff's favor. Id.

III. DISCUSSION

A. Personal Jurisdiction Over Yarmuth

In federal question cases arising under a federal statute silent as to service of process, Rule 4(e) of the Federal Rules of Civil Procedure requires that we determine both jurisdiction and service of process using state amenability standards, that is, the state long-arm statute. Cable/Home Commc'n Corp. v. Network Prods., Inc., 902 F.2d 829, 855 (11th Cir. 1990). Our analysis, however, goes beyond the state's long-arm statute. Jurisdiction over a non-resident defendant must also satisfy the Due Process Clause. See id. at 857. Because the SCA is silent as to service of process and the present case was brought in the United States District Court for the Middle District of Florida, we apply the State of Florida's long-arm statute, which states in relevant part:

(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself . . . to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:

. . .

(b) Committing a tortious act within this state.

. . .

(f) Causing injury to persons or property within this state arising out of an act or omission by the defendant outside this state, if, at or about the time of the injury, . . . [t]he defendant was engaged in solicitation or service activities within this state;

. . .

(2) A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.

Fla. Stat. § 48.193 (2006).

We find no basis to assert jurisdiction over Yarmuth. First, Snow briefly argues that Yarmuth is subject to jurisdiction under § 48.193(1)(b) because it conspired with and acted through its agents DirecTV and Stump, which committed tortious acts in Florida. Snow relies solely on vague and conclusory allegations³ presented in his complaint, which are insufficient to establish a prima facie case of personal jurisdiction over Yarmuth. See Posner v. Essex Ins. Co., 178 F.3d 1209, 1217-18 (11th Cir.1999) (per curiam) (finding a plaintiff's vague allegations of a conspiracy insufficient to establish an actionable conspiracy subjecting the defendant to personal jurisdiction). Wilsdon, a Yarmuth partner, submitted an affidavit in which he claims that, while representing DirecTV in Florida courts, he worked with local counsel retained by DirecTV. DirecTV, not Yarmuth, would be the principal in any possible agency relationship that existed among DirecTV, Yarmuth, and Stump, which was retained by DirecTV in some Florida actions. Snow presents no factual allegations demonstrating an agency relationship where Yarmuth was the principal and Stump was its agent, as would be required to subject Yarmuth to jurisdiction in Florida for Stump's actions. Accordingly, we find no basis to subject Yarmuth to personal jurisdiction under § 48.193(1)(b).

Equally unpersuasive is Snow's argument for jurisdiction under § 48.193(1)(f). Snow argues that under the statute's plain language Yarmuth is subject to jurisdiction because it caused injury to him in Florida.⁴ However, we are required to read the statute as the Florida Supreme Court would. Cable/Home Commc'n, 902 F.2d at 856. The Florida Supreme Court has held that § 48.193(1)(f) applies only when a defendant's out of state actions cause personal injury or damage to physical property in the State of Florida. See Aetna Life & Cas. Co. v. Therm-O-Disc, Inc., 511 So.2d 992, 994 (Fla.1987). Because Snow does not allege that he sustained any personal injury or damage to his physical property, Yarmuth cannot be reached under § 48.193(1)(f).

Finally, Snow argues that the statute's general jurisdiction provision applies to Yarmuth. See Fla. Stat. § 48.193(2) (2006). General jurisdiction does not require a connection between a defendant's activities and the cause of action. See Helicopteros Nacionales de Colombia S.A. v. Hall, 466 U.S. 408, 414 n. 9, 104 S.Ct. 1868, 1872 n. 9, 80 L.Ed.2d 404 (1984). Florida courts have held the term "substantial and not isolated activity" used in § 48.193(2) means "continuous and systematic general business contact" with Florida, a term used by the Supreme Court in Helicopteros to determine whether general jurisdiction was...