'3 LEE: THE .t utaemta: straits Ei'iiF: 3311512331 1N THE ctacurr couar Foa THE a ?fl DEVIN G. MINES, Plaintiff, v, THE MCCLATCHY COMPANY, ELIZABETH A. MAIR, and MAI Ft STRATEGIES, LLC, Defendants. - MEMURANDUM IN SUPPORT OF DEFENDANT THE MCCLATCHY MDTIDN TU DISMISS BY LIMITED SPECIAL APPEARANCE FDR LACK PERSONAL JURISDICTION This baseless lawsuit is a cynical maneuver to score cheap political points at the expense of a free press. Plaintiff Devin Nunes is a California congressman who claims that a May 2918 article in a California newspaper was defamatory, even though the article accurately described a settled sexual harassment lawsuit that he concedes was ?extensively reported" by another publication. Am. Comp-L1] 3 n.2. In fact, the article with which he now taltes issue makes clear that he had received multiple opportunities to set the record straight. But rather than offer an}.r statement, rebuttal, or purported correction, ?Nunesi of?ce did not return requests ?orcomment.?I There is no claim here, despite a powerful politician?s demand for because his local newspaper [whose repeated past endorsements he seemed happy to accept} fairly reported something he does not like. 'Macitenaie Mays, Congressman! Ethics ??ice Gets New Compininis About Nanes' Wine Business, Financier! Dis-ciosnres, The Fresno Bee (July 1 1, 2013}, 4593435htn1l . But this motion is not about the lack of merit of Plaintiff? lawsuit. Even before reaching the substance of Plaintiff?s claims. his Compiaint should be dismissed for laclt of personal jurisdiction over The McClatchy Company {*?Mc?latehy??. McClatchy is a Delaware holding company with headquarters in Califomia that has no relevant contacts with Virginia and does not publish any newspapers or have any reporters in Virginia [or anywhere else}. Plaintiff seems to take issue with one of McClatehyis wholly independent subsidiaries, McClatchy Newspapers, Inc. which publishes Tire Fresno Bee. But because is not a ?device, stooge, or dummy? of MeClatchy, the Court cannot disregard the ?separate corporate entities" by imputing MNl?s alleged acts to McClatehy. Era-e Marjorie Snipes-fining Dances Conn, 263 Va. 624, 634 {quotation marlts omitted). Even if imputation were proper, there still would he no jurisdiction over McClatchy because the alleged conduct giving rise to this case?posting an article in a California newspaper about a California lawsuit regarding events in California?has nothing to do with Virginia, and Plaintiff does not allege that he incurred any harm in Virginia. There is no genera! personal jurisdiction over McClatch because its contacts with Virginia are not so ?substantial and of such a nature as to render the corporation at home? here. Daimier AG v. Bonn-ton{2014]. Nor is there specific personaljurisdiction because McClatchy has not purposefully directed any activity toward Virginia, and any minimal contacts with Virginia are unrelated to the alleged events giving rise to this case. Forcing a California company to litigate California?based claims made by a California Fiaintiff under Virginia procedural law would violate due process, and nequiring to incur the substantial costs, inconvenience, and burdens of flying its executives, counsel and trial witnesses across the country would offend all ?notions of fair play and substantial justice? In: Shoe Co. v. Wash, 326 LLS. 311], 316 {l 945} {quotation marks omitted}. Plaintiff, by contrast. would not be inconvenienced in the slightest if the Court dismisses this ease so it ean be re?led, ifat all, again st the eorreet defe in a California eourt: Plaintiff resides in California, and the relevant events oeeurred there. Indeed. the o?iees of The Fresno Bee are only ten bioeks from the Fresno County Superior Court, and Plaintiff has a eongressionai office less than two miles from the Tulare County Superior Court. Plaintiff is quite capable of filing suit in either. Just last month} for example, 3 Fresno lawyer and Plaintiff?s courtsel in this ease sued four California residents in the Tutare County Superior Court on behalf of the Illevin Hones Campaign Committee. But unlike Virginia?s statute, California?s statute gives defendants the right to obtain attorneyse fees and eosts for defending ?strategie lawsuits against politieal partieipation,? like this one. See Ca]. Civ. Free. Code So instead of filing suit in his home forum. Plaintiff added to this Court's busy docket by ?ling suit 3.000 miles away, presumably in an attempt to evade that penalty. to avoid possible serutiny by ajury of his California constituents, and to unduly burden MeCiatehy. The Court should rejeet Plaintiff" 5 forum shopping and dismiss this Californiarbased dispute for laelt of personal jurisdietion over MeClatehyF MeCiatehy is a Deiaware corporation that is headquartered in Califomis. Linteeum Desi. 3, it is a holding eornpany that has no of?ees, empioyees, or reporters in Virginia; owns no property in Virginia; and has written off its sole investment here sinee 201?. fat. 0' 3, ti, 3. MeClatehy is not registered to do business in the Commonweaith. Id. '5 3. Nor does it have a 1 IvteCtatehy moves by limited speeial appearance and ehallenges only personal jurisdietion. This motion is therefore ?unrelated to adjudieating the merits? and ?does not waive any objeetion to personal jurisdictions.? Va. Code MeCIatehy reserves the right to fiie responsive motions ifthe Court denies this motion. including but not limited to a demurrer; a motion to dismiss for improper venue, a motion to eompel arbitration. and an anti?SLAP!? motion to strike. registered agent in ll.i'irginia. id. Plaintiff served l'vleClatehy with the Complaint in this case on August 19, Elite, via a process server in Delaware. lot '11 d. l'vleCiatehy does. not publish any newspaper anywhere. Linteeurn Beat. it 5. Nor does it have any reporters. in Virginia, or anywhere else. id. 1] ti. ivIeCJatehy has no revenue in Virginia or elsewhere. id. 3. MeClatchy owns independent subsidiaries that operate in fourteen ether States, but not Virginia. M. No newspaper under MeClatehy?s corporate umbrella operates in ?v?irginia or has o?iees, entployees, or reporters based here. lid. 'H'ii 632'. One of McClatehy?s subsidiaries, hrlhil, publishes The Fresno Bee and other publications solely in California and the State of Washington. Lintecunt Decl. '11 4. MM is a Delaware corporation with its headquarters in Califomia. M. It has no of?ces, employees, or reporters in Virginia; does not advertise in Virginia; has never owned property in 1tiirginia; does not have a registered agent in Virginia; and is not registered to do business in Virginia. Id. McClatehy and MNI maintain separate books and absorve separate corporate formalities. lat MeClatehy does not exercise continual supervision over or intervene in MNl's affairs. at The Fresno Bee is a newspaper based in Fresno, California. Ritchey Deel. "ii 3. it has no of?ces, employees, or reporters in Virginia; does not advertise in Virginia; has never owned property in 1v'irginia; does not have a registered agent in 1bv?irginia; is not registered to do business in Virginia; and doEs not contract with any distributor in Virginia. Id. 'E?il 4?5. its 39,034 subscribers, only 43 Virginia addresses receive The Fresno ?ee?all via the US. mail. Id. 5. Plaintiff has had an electronic subscription to The Fresno Bee since September 4, zeta. Ritehey Ueci- 11. All new subscribers agree to Terms of Service providing that located in Fresno County, California havejurisdiction in anyr dispute arising Front these Terms of Se Nice." Id. 1i 7? d: Ens. A, B. Cine such term is that no event will FresnoBee.eom, The McClatehy Company, or their parents or affiliates be liable for . . . any claim attributable to errors, omissions, or other inaccuracies published on FresnoBeecom or in its mobile apps." Id} Plaintiff Nunes was born and raised in California, is still a California resident, and has represented California as a congressman since 2W3. Ant. Compl. Ti 4. He filed this lawsuit in April asserting three causes of action: Defamation against MeClatchy based on the theory that its subsidiary, Moll, published a defamatory article in The Fresno Bee in May EDI 3, posted the article on innovfresnobecnom, and shared a link to the article via Twitter. id. It}. This article described allegations in a California lawsuit involving a fundraiser at a California winery for which Plaintiff is a limited partner. Id. Till tot?12. Conspiracy against MeClatehy and two ?co~eonspirators," Elizabeth Mair and Mair Strategies, LLC (together, "Mair?ji, based on the theory that McClatehy and Mair ?engaged in a joint scheme . . . to destroy [Plaintiffs] personal and professional reputations, advance the goals of the dark money behind paid-Fod? ]smear campaign, interfere with {Plaintiff?s} duties as a United States Congressman, and in?uence the outcome of a federal election.? id. 11 34. Injunction against l?v?leClatehy requiring it ?to deactivate all hyperlinks to all online articles and all tweets, retweins, replies and lilies by MeClatehy or any of its agents that contain false and defamatory statements about None-s.? Id. 'li 39. The Complaint does not allege that Plaintiff lives or works in Virginia, or has ever stepped foot on Virginia soil. Nor does it allege that he suffered harm in Virginia. Plaintiff has two congressional offices in California. Cine is less than two miles from the state ectirt where Plaintiff-"represented by the same counsel?recently sued several California residents.?F See Complaint, Devin Nurses Campaign Committee v. .?S?sat?ey, No. Sup. 3 The Terms of Service also include an arbitration provision and a waiver of any claim not brought within one year. See Ritehey Deel. Ess. A, B. ?l The congressional office is at 113 hi- Church Street in 1 v'isalia, CA 9329]- See Devin Hones, Gf?oe Locations, {last visited Aug. 29, E?llil]- The ?l?ulat?c County Superior Court is approximately 1.7 miles away at 221 South Mooney Boulevard, ?v'isulia, CA 93291. See The Superior Court of California, County of Tulare, {last visited Aug. 29', 2o] CL, Tulare Cnty. Aug. 1, 20'19], evuttuete at The other of?ce is located about twelve miles from The Fresno Beeis headquarters and Fresno County Superior Court.5 ARGUMENT ?Piaintift bears the burden of proving by a preponderance of the evidence that the I{Court has personaijurisdiction over each defendant." Frizeett v. Duntett' Corp., 31 Va. lCir. 42'? {2011]}. pleading? is not enough; there must be "facts supporting the exercise of jurisdiction.? E. Direct Ming. v. The {L?not't'rt'ge 26 Va. Cir. 232 {1992}. In determining whether jurisdiction exists over a nonresident defendant, ?the Court engages in a two-part analysis." Friasett, 3] Va. Cir. at 427. ?First, the Court asks whether Virginia's long-arm statute reaches the non-resident defendant?; it? so, the Court asks whether exercising jurisdiction over the defendant ?complies With the due protests requirements of the Fourteenth Amendment to the United States Constitution.? to?. [quotation marks omitted]; see rrtso Sutheri?nnd' v. Robby Carpentry. the, 63 Va. Cir. 43 (2035} [articulating same two-part test}. Plaintiff has not met?and cannot meet?his burden for either requirement. I. The Virginia Long?Arm Statute Does Not Reach MeClatehy. In an attempt to establish jurisdiction over McClatchy, Plainti?" cites subsections and (Anti) of Virginia's ]ong?arm statute, see Am. Compl. 2t, which provides: A. A court may exercise personat jerisdiction over a person, who acts directly or by an agent, as to a cause of action nrr?singjrom the person l. Tram-tasting any business in this Commonwealth; 3. {Sensing tortious injury by an act or omission in this Commonwealth; 5 The congressional office is at 254 Clovis Avenue, Clovis, CA 936E. See Devin Nunes, D?ice Locations, {last visited Aug. 29, sets}. The Fresno Bee is located approximately il? miles away at ?325 E. Street Fresno, CA QBTEE- See Ritchey Heel. 3. 4. Causing tortious injury in this Commonwealth by an act or omission outside this Commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered. in this Commonwealth. Va. Code 311] 623.] {emphasis added}. None of these three subsections applies here. First. ivicClatchy does not ?[t]ransact[] any business in this Commonwealth.? Va. Code Bill-328. Cases finding jurisdiction under this provision generally have involved nonresident companies that register to do business in Virginia which McClatchy has not done. or ?regularly and systematically do[ business in Virginia,? which McClatchy does not do. Win v. Reynolds Meier's Co, 2443 Va. 452, 456 {?999} (finding personal jurisdiction over nonresident company}. Although the Complaint vaguely alleges that McClatchy "broadcast[s]" its ?national news coverage? to Virginia, Am. Compl. Tl that is not true; McClatchy does not broadcast news coverage to ?v?irginiat or anywhere else. Lintecum Decl. 11 5. And even if McClatehy engaged in a predicate business transaction in Virginia, Plaintiff?s claims do not ?arise[] ii?om? that transaction, Va. Code {.35 Elli-323d, because the claims arise from alleged actions in California?cg, writing and publishing The Fresno Bee article. See l'rt?ct Part insofar as Plaintiff su ggests that McClatchy trans acts business in the Commonwealth based on the alleged acts of its subsidiary, MHI, that too is wrong. l'lei does not transact business in Virginia. it has no offices, or reporters here; does not advertise here; has never owned property here: does not have a registered agent here; and is not registered to do business here. Lintecum Decl. r. 4. Moreover, all of its alleged acts occurred in Cniffornio and, therefore, do not satisfy the ?arising from? requirement of Virginia Code 3.0! {5231. MN *s alleged acts also do not supportjurisdiction over McClatchy for a more fundamental reason: ?The mere showing that one corporation is owned by another . . . is not a sufficient justi?eatien fer a seen In disregard their separate eerperate strueture." Inc. v. Jennings, 255 lv?a. 533, 592-93 {quetatien marks emitted}. Rather, ?a parent eerperatien transaets business in the same district as its subsidiary enly when the parent exereises deminien and eentrel ever the subsidiary as demonstrated by its eentinual supervisien ef and interventien in the subsidiary?s affairs." Omega Hemes, Inc. v. Cat, 655 . Supp- 393, 393 (WE. (discussing Cede Thus, fer a eeurt te exercise persenal jut'isdietien ever a parent based en the aets ef its subsidiary. ?a plaintiff must shew that . . . the parent uses the subsidiary as its alter ege . . . er that the subsidiary is the implied agent ef the parent.? Schm?'t?D?e's v. Am. Regent. Inn. 2012 e4?4t}33. at *7 Va. Dee. 13, Emit} (discussing Va. Cede blene ef Plaintiff?s allegatiens teuehes en these requirements. l-le dees net allege that MeClatehy supervises leblI= eentrels its affairs, treats it as an agent. uses it as an alter ege, er dees anything else suggesting that is a ??etitieus shield ereeted by [lvleClatel-ty] te pretest itself" item being sued in Virginia. Garage Hie-mes, 6545 F. Supp. at 399. In East. MeCIatehy and MNI maintain separate beeks and ebserve separate eerperate fennalities. Linteeum Deal. ?5 4. lvleClatehy dees net exercise eentinual supervisien ever er intervene in affairs. Id. ?[t]he separate eerperate entities ef [the] eerperatiens Ernest] be ebserved by the eeurts." Ears. 263 Va. at 634 [quetatien marks emitted}. Secene', the Cemplaint dees net allege that lvleClatehy ?(ejaus[ed] tertleus injury by an act er emissien in infra] Cemmemveelth." Cede {emphasis added}. This previsien dees net apply when the defendant aeted eniside the Cemmenwealth. ln Lei-tn v. Regelsen, Fer example. the eeurt held that Seetien did net reach a defamatien defendant aeeused ef ?writing and mailing the allegedly dethmatery- material . . . in and net Virginia.? 33 Va. Cir. 233 {emphasis added}. Likewise, Plaintiffdees net allege that McClatehy {er Midi} teeh any tenieus actiens in Virginia. Publishing an article ?in print, en the Internet, and . . . [reltweeting it tn the Twitter universe," Ant. Cemp]. '11 29, all describe alleged acts by WI in Caiil?emia. Third, McClatehy did net cause ?tertieus injury in this Cnmmenweaith by an act er emissien eutside this Cemmenwealth.? Va. lCede The Cemplaint newhere alleges an injury in Wrginr?e, and enly vaguely alleges that Plaintifi"'sut1"ered presumed damages and actual rzlan'iages?~ withnut specifying where that harm occurred. Am. Cempl. ii 32. Any such harm presumably eccurred where Plaintiff was bern, raised. and resides {Califemia}, er where he works {Calii?ernia er Washingten, Id. 114; see Cnidar- v. Jenes, 465 US. 3?33, "333?39 {1934} {reasening that the ?brunt ef the harm? in a libel actien eccurs where the plaintiff resides). Even if Plaintiff suffered an injury in Virginia, this previsinn still weuld not apply because MeClatehy is net a cempany that i} ?regularly dees er selieits business? in Virginia, ii) ?engages in any ether persistent eeurse efcenduct" in Virginia. er ?derives substantial revenue frem geeds used er censumed er services rendered? in Virginia. Va. Cede see else E. Dirac-r sittings Ed Va. Cir. at 232 [?nding nejurisdictien ever defamatien defendant that ?fasted a iiheleus memorandum item New 't?nrlt" tc Virginia because plaintiff made eniy ?Ia-tinelust?iry?1 allegatiens sheet the defendantis business activities in Virginia); see else i'n?e Part ILA. Because ne ?facts the exercise efjurisdictien under the leng arm statute,? the Ceurt ?dees need te reach the due precess aspect? ef the jurisdictienai analysis and sheuid dismiss this case ibr lack efjurisdictien ever McClatchy. E. Direct Midg, Ed Va. Cir. at 232. ll. Exercising Ju risdictiea ?ver MeClatehy Weuld Vielate Due Even if the leng-arrn statute reached McClatchy {it dees net},jurisdictien weuld net exist unless Plaintiff also shows that McClatchy has sufficient ?minimum contacts? with Virginia such that maintaining this suit in this Court would not violate federal due process. in: Shoe. 326 LLS. at 3 6. Plaintiff can make this showing by establishing ge neral? (sometimes called *all-purpose") jurisdiction [or] ?speci?c* {sometimes called Brisioi?riiyers Squibb Co. v. Sup. Ct. S. Ct. i736 see Friseeii. Si ya. Cir. at 42?. General jurisdiction exists only if McClatchy is ?at home" in Virginia; specificjurisdiction exists only if ?the suit . . . arisels} out of or relate[s] to [McClatchy?s] contacts with the forum.? Emmott?Myers. 13? S. Ct. at {quotation marks omitted}; see N. Commercioi' Bonk 1e. Heritage Green Bea, LLC. 95 Va. Cir. 213 {2017]. Plaintiff cannot make either showing. A. General Jurisdiction Does Not Exist Because McClatehy Is Hot ?At Home? In 1Virginia. A court may exercise general jurisdiction ?over a foreign corporation to hear any and all claims against only when the corporation?s affiliations with the State in which suit is brought are so constant and pervasive as to render [it] essentially at home in the forum State.? Doimier. S'il LLB. at ?22 (quotation marks omitted}. ?The paradigm forums in which a corporate defendant is at home . . . are the corporation?s piece of incorporation and its principal place of business.? BNSF Ry. Co. v. Tyreii. i3? 3. Ct. 1549. IESE {Etil'i} {quotation marks omitted). Met: latchy is not ?at horn e" in Virginia because it is a Delaware corporation, headquartered in California. and this is not the ?exceptional case" where a nonresident defendantis affiliations with 1Virginia are ?so substantial . . . as to render {it} at home? in Virginia. ?oimier, 57] LLB. at [359' n.19. To the contrary, MoCIatchy is a hoiding company that is not won registered to do business in 1iIr'irginia. and has no offices, employees. or reporters here. nor any registered agents or reycnucs here. Lintecum Decl. 1W 3. ii. 10 Plaintiff nevertheless argues that ?McElatchy is at home in Virginia? because ?[i]ts print newspapers are deliveuecl to businesses and consumers throughout Virginia, including Albemarle County, every day by large distributors and independent contractors.? Am. lCompl. 11 3. That is doubly wrong. First, it is factually wrong because lecCiatchy does not publish or distribute newspapers brunt-here. Lintecurn Dec]. Fl 5. Second. it is legally wrong because, even it" Mc?iatchy had distributors in Virginia, a nonresident corporation is not ?at home? in every State where it has an ?independent contractor, subsidiary, or distributor-? Daimler, LLB. at HE, 139 p.29 {quotation marks emitted}. To the contrary, the generaljurisdiction inquiry ?calls for an appraisal ofa corporation?s activities in their entirety, nationwide and worldwide.? Id. at 139 11.20. That appraisal shows that, if anything, McClatchy is less at home in Virginia than in the fourteen States where it owns media companies. Lintecum Dec]. 3. Plaintiff also alleges McClatchy owns ?investments in Charlottesville,? Am- Compl- 'll El, but McClatchy has written off all of its interest in the sole ?Charlottesville investment" referenced in the Complaint since EMT?before the alleged defamation, Lintecum Heel. 3. He further alleges that ?McClatchy derives substantial revenue" from its business in Virginia, Am. Compl. 1i 21, but McClatchy has no revenue in Virginia, Linteoum Deal. 1i 3. And McClatchy does not have reporters ?present in Virginia,? Am. Comp-l. 1 or anywhere else, Lintecurn Decl. e. Insofar as Plaintiff is referring to the alleged actions of Mill, those actions are not imputed to McClatchy because, again. there is no evidence that would allow the Court to ?disregard the separate legal identities of the Beale v. Kappa Alpha {Jr-tier and Kappa .44?th Alumni Found, I92 Va. 332, 399 {195 Regardless, MNI does not have reporters in Virginia. Lintecurn Heel. 1] Nor does it have other ?exceptional" contacts with Virginia such that it may fairly be said to be ?at home? here. Daimler, STI US. at I39 n.1'9. BNSF is instructiye. There, the LLB. Supreme Court heid that a national railroad company was not subject to generaijurisdiction in Montana even though it had "oyer Edith] miles of railroad track and more than employees? in the State. 13? S. Ct. at 155369. According to the Court, ?the generaljurisdiction inquiry does not focus solely on the magnitude of the defendants in?state contacts," but instead ?calls for an appraisal of a activities in their entirety.? In?. {emphases added and quotation marks omitted]. As one state supreme court recently noted, the 1.1.3. Supreme Court in BEEF ?firmly rejected any notion that a nonresident defendant?s *doing business? in a forum state is sufficient, in and of itself, to subject the out?of?state defendant to the general personal jurisdiction of the forum state." fhcehook. Inc. v. HES, So. 3d 2131? WL 2710235, at *3 (Ala. June 23, 2019} [no general jurisdiction over Facehoolt in Alabama because its operations in the State ?are not so substantial or or? such nature as to render it ?at home? Because there is nothing ?exceptional" about McClatchy?s {or even Mhll?s} contacts with Virginia, especially when compared to otherjurisdictions, the company is not ?at home? here and is not subject to general personal jurisdiction in this Court. Daimtrr, 5711 LLB. at 139 11.19. 3. Specific Jurisdiction Does Not Exist Because McClatchy?s Threadhare Contacts With 1lrlirginia Are Unrelated To Plaintit't?s Claims. In determining whether speci?c jurisdiction exists, the Court asks whether ?the defendant has purposefully directed his activities at residents of the forum? and the ?litigation results from alleged injuries that arise out of or relate to those activities.? Burger King Corp. Rmteewr'ca, 411 US. 462, 412 [1935} {quotation marks omitted}. Ifhoth requirements are met, the Court then asks whether the ?minimum requirements inherent in the concept of ?Fair play and substantial justice? . . . defeat the reasonableness of jurisdiction.? Id. at JTTJE {quoting World- Wide Fot'k?rngen Corp. v. Woou?sort, 444 LLS. 236, 292 None of those three prongs supports the exercise of specificjurisdiction oyer McClatchy. I. McClatchy Did Not Purposefully Direct Activities At Virginia. A defendant must ?purposefully direct? its actions towards a forum, Keaton v. Hustle:- Inn, 465 LLS. Fi?, TM in order to purposefully avail itself of ??the benefits and protections? oi" the forums laws," Burger King, Lilli. at did. This requirement protects defendants from being ?haled into a jurisdiction solely as a result of ?random! ?fortuitous,? or ?attenuated? contacts? with the jurisdiction- id. at 4T5. ln Keenan, for eaample, the lit-l. Supreme Court held that a New Hampshire court had jurisdiction over libel claims against the publisher of a ?national publication" that ?continuously and deliberatelyr eaploited the New Hampshire market" by regularly selling ?thousands of magazines? each month in the State. 465 US. at Tia, 1'31. In contrast to the allegations here, ?the general course of conduct in circulating magazines throughout the state was purposefully directed at New Hampshire, and inevitably affected persons in the state.? id. {quotation marks emitted}. Another example is Colder, where the US. Supreme Court held that California had personal jurisdiction over a reporter and editor of a magazine who resided in Florida and were accused of defamation in a California court. 465 US. at ills-35. Jurisdiction existed in Colder because ?California [wa]s the focal point both ofthe story one! ofthe harm suffered.? id. at T39 [em ph ases added}. The magazine sold about 600,000 copies in California, "almost twice the level of the neat highest State;? the defendants used ?sources in California" for the article, which ?concerned the California activities of a California resident" the article ?impugned the professionalism? of that resident, whose ?career was centered in California?? and ?the brunt of the harm . . . was suffered in California." Id. at 7'35, 733-39. Here, by contrast, McClatchy did not write or publish an},r article about events in Virginia- Nor did because the focal point of The Fresno Bee article was California. not Virginia. The [3 artieie deseribed eyents in Caiifernim was published in a Califernia newspaper, and allegedly harmed a Califernia resident. Virginia was the "feeal peint? ef neither the stery ner the harm. The Fresne Bee article did net ?target Virginia? simply because it was pested enline. Fer example. in Laetn'e v. Mnrwe?, the eeun laelced jurisdictien eyera nenresident whe published an article enline witheut ?a speei?e intent te reaeh a Virginia audience.? 93 Va. Cir. 415 {Elite}. Likewise. in Knight r. ?ee. the eessibility ef the website in Virginia" did net shew that nested enline was intentienally direeted ?at a Virginia audience." 201] 2411543. at *3 Va. June 21. 2i}! And in Faring V. New Haven Advocate. twe Cenneetieut newspapers did net. direet aetiyities inte Virginia beeause they ?did net pest materials en the Internet with the manifest intent ef targeting Virginia residents." 3 I 5 F.3d 256. 2er [4th Cir. Se tee here. Altheugh Plaintiff alleges that MeCIatehy *?use[ei] the internet er seeiat media as a weapen te defame? him. Am. Cempt. 25, persen whe simply plaees infennatien en the Internet" dees net purpesefully direet aetiyities inte ?eaeh State inte whieh the eieetrenie signal is transmitted and received." Ins. V. Digits?! Sen-t. Ind, 293 .3d 73?, T14 {4th Cir. 2002}. The Cempiaint dees net allege that MeClatehy speei?eaily targeted a Virginia andienee?say, by advertising in Virginia. Her dees Plaintiff allege that he lives here. werlts here. er was harmed here. Altheugh it might have been lereseeable that Virginians weuld access the artiele enline, ??fereseeability? alene has neyer been a suftieient benehmark ef persenal jurisdictien.? Wee-deem 444 LEE. at 295. The deeisien by third parties te initiate eentaet with MNl?s enline platfenns (again, MeCIatehy has nene} are the 1rery de?nitien ef ?randem, fertuitetts. er attenuated eentae?sl? that are insuf?cient te create jurisdictien. Burger King. 471 US. at 47'5 {quetatien marks emitted}; see else faring, 3 l5 F.3d at 263 the newspapers* websites eeuid be anywhere. ineluding Virginia. dees net by itself demenstrate that the newspapers were intentienally directing their website centent te a Virginia audience?). indeed. centacts with Virginia are far fewer than in ether cases where ceurts have feund a lack ef purpesel?ul directien. ln FUR Tech. LC. v. Bed Features. L. L. (3.. "5'9 Va. Cir. El fer es ample, the eeurt held that the nonresident defendants ?never purpesely availed themselves at" any Virginia institutien" even theugh the defendants and the plaintiffs had agreed ever the phene te Ferm ajeint venture centpany in Virginia, at least ene persen en the call was in Virginia. and ?cemmunicatiens that led tn the Plaintiff?s ciairns eccurred hy telephene and email between the parties while Plaintiff was present in the Cemmenwealth.? Id. If the defendants in FER ceuld net ?have reasenahly lereseen that they weuld he haled inte Virginia eeurt as a result ef their actiens.? id. then McClatchy ceuld net either. 2. The Claims De Net ?Arise Gut Of? Activities Directed At Virginia. Because Met: late hy did net purpese?illy direct activities at Virginia. Plainti it"s defamatien claim necessarily did net ?arise eut efer relate In these activities.? danger King, US. at 472 (quetatien marks emitted). indeed, the defamaticnn claim arises ?out ef activities?Miting. publishing: and tweeting an article?that all were perfermed in ISali??srnia= net Virginia. by McClatchy?s independent subsidiary. MNI. whese acts are net imputed te McClatchy. In Jaeksen v. Mfr-hairs}, the eeurt held that it did net have persenal jurisdictien ever the auther cf an allegedly defamatory article pasted enlinc theugh he had ?cenduct[ed] sales activities in Virginia? because these activities did "net Ferm the basis far this suit" and were unrelated la the article. WL 36T9143. at (WE- Va- Aug. 22, E?l The eeurt alse rejected the plaintiff?s argument that. because the article ?was readily accessible frern Virginia." ?it was effectively directed te Virginia.? Id. at The cenrt esplained that ?[nieirher the article . ner the website an which the article was published targeted a Virginia audience.? and thus the If: actions giving rise to the defamation claim were not purposefully directed at Virginia. Id. at Here, McClatchy has conducted no business activities in Virginia, and thus there are no activities that could createjurisdietion because they do ?not fonn the basis for this suit." And the activities that do form the basis for this suit were not purposefully directed at Virginia because lire Fresno Bee article did not target a Virginiamas opposed to a California or national?audience. Thus, like the plaintiff in Jackson. Plaintiff here has failed to establish that his claims arise out of any activity McClatchy (or or ?re Fresno Bee} directed at Virginia. Sea Bristol-Mums, 5. Ct. at WEI {?nding nojurisdiction over nonresident company that ?conducted research? in the forum State because that research was ?unrelated to . . . the speci?c claims at issue?). 3. Exercising Jurisdiction Would Be Unreasonable. Because McClatchy has not purposefully availed itself of the privileges of doing business in Virginia. and because the only alleged Virginia contacts are those of its non-party subsidiary {which are unrelated to the alleged defarn ation}, the constitutional analysis ends and the lCourt does not need to consider the reasonableness of eaercisin gjurisdiction over McCiatc by. But if the Court reaches this issue. it would consider fore factors: if I ?the burden on the defendant," ?the forum State's interest in adjudicating the dispute," ?the plaintiff's interest in obtaining convenient and effective relief." ?the interstate judicial system?s interest in obtaining the most ef?cient resolution of controversies,? and ?the shared interest of the several States in furthering fundamental substantive social policies." 444 US. at 292; see 68 Va. Cir. at 43. All ?ve factors confirm that eaercisingjurisdiction oyer McClatchy would be unreasonable. First. litigating in this Court would signi?cantly burden McCIatc by. which has no presence in Virginia. See generally Lintecurn Decl.; see Bristol-Myers, 13? S. Ct. at HEIDI [explaining that the ?primary concern" in ?determining whether personal jurisdiction is present" is ?the burden on the defendant? {quotation marks omittedjt). in fact, most?if not all?of the relevant witnesses and documents are in California, where The Fresno Bee and its employees are located; where the ailegedly defamatory article was published; and where the acts reported in the article occurred. Ritchey Decl. 1i? 4, d; Am. Comp. 2? 15. It would be expensive and inconvenient to conduct discovery about these California events in California; ship the evidence across the country to Virginia; and force the parties and witnesses to spend nights away from home, family, and jobs to appear at court proceedings and provide testimony at any trial in this Court. That is why the Terms of Service for subscribers to The Fresno Bee (including Plaintiff] providejurisdiction over related disputes to courts located in Fresno County. Id. 3? tit Ens. A, B. These substantial costs and burdens ?should have signi?cant weight in assessing the reasonable nose of? aubj ecting McClatehy tojurisdiction in Virginia. Ararat Metal Indus. Co. v. Superior Court, 4312! LLB. i 14 Second. Virginia has only a ?slight," if any, interest in resolving this dispute, particularly because ?minimum contacts have not been established." Sutherland, 68 Va. Cir. at 43- McClatc-hy and Plaintiff are California residents, the allegedly defamatory statement arose from California, and any conceivable defamatory harm occurred primarily in California, where and holds public of?ce. Further, the choice-of?law analysis would require applying California law in this case because the law of the State ?where the plaintiffis California?governs cases involving allegedly defamatory oniine speech. Grfmore v. Jones, 3TB F. Supp- 3d 639, 663- 135 (WU. Va. if anything, Virginia has a compelling interest in dismissing this California- based dispute so it can be re?led, if at all, in Plaintiff?s home forum, rather than hardening Virginia?s court system with a lawsuit unrelated to the Commonwealth and its residents. Third, Plaintiff does not have any legitimate interest in litigating here. He is not a resident in Virginia, and the Complaint does not al that he has even stepped foot in Virginia or incurred any harm here. if anything. requiring Plaintiff to litigate in California would be more convenient for the California congressman with an office less than two miles from a California courthouse. Fonrrh. declining to exercise personal jurisdiction over McClatehv would promote the interstatejudicia] system?s interests by preventing tbrurn shopping. Plaintiff appears to have ?led suit in this forum in an attempt to avoid scrutiny by his California constituents. impose undue burdens on and evade Califomials statute, which would require prompt dismissal with an award of fees to MeClatchy. See Cal- Civ. Free. Code 425.16. Judicial efficiencyr is also best served when disputes are resolved in a forum with a nexus to the case or in the plaintiff?s home forum. Moreover. this Couttls ability to compel documents and testimony from unwilling California witnesses is much more limited than the California courts. Compare Cal. Code Civ. Proc. IQBT, ?339 [empowering courts to compel California residents to testify], with Yelp, Inc. v. Hndeed Carpet Cleaning. for!? 235} Va. 426, 433 5} Rules do not recognize the existence of subpoena power over nonresident non?parties?). Fifth. for the same reasons. declining jurisdiction would advance the interests of other States in ?furthering fundamental substantive social policies." Woodson. 444 LLS. at 292. California has a fundamental interest in adjudicating disputes involving the First Amendment protections for its newspapers and reporters robust statute; reporter shield laws} protecting its citizens from defamation and holding its citizens accountable for making defamatory statements. See Keeron, 4455 LLB. at 7T6 is beyond dispute that New Hampshire has a signi?cant interest in redressing injuries that actually occur within the State"). Virginia has little interest in doing the same for nonresident plaintiffs and nonresident defendants. Both jurisdiction s, however, have an interest in efficiently.r seeking the truth and resolving controversies. California courts are much better situated to accomplish that goal with respect to this dispute. [3 Plaintiffs Conspiracy Theory Does Not Establish Jurisdiction ?ver McClatchy. in an attempt to support his decision to file this lawsuit in Virginia, Plaintiff halfheartedly advances a theory of eo?conspiratorjurisdiction, asserting that McClatchy is subject tojurisdiction in Virginia because it conspired with a Virginia resident and her company, and that they ?were, at all relevant time, physically present in Virginia.? Am. Compl. S. This argument fails out of the gate. personal jurisdiction based on a conspiracy theory to exist,? a ?plaintiff must allege facts that establish a prima facie showing of conspiracy, and more than conciusory allegations that a conspiracy caisted.? Knight, 201 WL 247?1543, at *2 n2. The sum total of the ?conspiracy? factual allegations in the Complaint are that Mair, an alleged Virginia resident, retweeted the allegedly defamatory article that {via The Fresno Bee} published in a California newspaper. Am. Compl. 1i Even if this alleged conduct could be imputed to McClatchy, a third partyis ofan article, without more, cannot possibly confer jurisdiction over the original publisher; otherwise, third parties could give any courtjurisdiction over the author?unbeknownst to the author?with the simple click of a button. See Walden v. Fiore, U5. HT, 234 {2014} {?The unilateral activity of another party or a third person is not an appropriate consideration when determining whether a defendant has sufficient contacts with a forum State tojustify an assertion of jurisdiction.? {quotation marks omittcd?. To be sure, the Complaint includes legal conclusions and conclusory speculation that McCiatchy and ivlair ?coordinated defamation campaign against? Plaintiff, Am. Compl. IT, but these cursory allegations do not provide any facts that could establish a conspiracy to defame Plaintiff. See E. Direct, 215 Va. Cir. at 232 {?IClonclusory pleading does not satisfy the requirements to csercise personal Indeed, Plaintiff has failed to allege ?specific facts showing actual agreements? between Mair and MeClatehy?a necessary predicate for a conspiracy claim. See Leaner Point's Condo. Ass Inc. v. Harbour Point Eidg. Corp, til Va. Cir. 19 509 {dismissing conspiracy claim}; see oiso Decision Insights, Joe. Quinlan, 2905 WL at *ti {Ell Va. Get. 2005} {retooling conspiracy jurisdiction nonresident defendant because complaint ?has not alleged any facts" showing a conspiracy that had at least ?one essential act . . . in Virginia?). Indeed, the Complaint alleges that Mair learned about the allegedly defamatory article offer The Fresno Bee published it and posted a link to it on Twitter. Am. Compl. That ?Mair was out to ?stielt it? to Hones? and. therefore. chose to retweet the link is hardly evidence that Mair and The Fresno Bee [let alone McClatchy} conspired to conduct a ?concerted defamation campaign" against Hones. Io?. 19; see otso Knight. Bill WL 24T1543. at *2 n.3 have found that minimal email exchanges or telephone calls into a jurisdiction, in concert with allegedly defamatory postings on a are insufficient to confer personaljurisdiction"). Moreoyer, jurisdiction arises from an alleged conspiracy only if?Virginia was the focal point of the tortious actiyity.? {initiation a. Peter, Tit} F. Supp. 2d oil}, ti'i'S (ED. Va. According to Plaintiff? the alleged conSpitacy was aimed at harming him in California [or possibly Washington. [lull?more than Elli] miles away from this Court} by seeking to disrupt ?his duties, employment and investigations? as a congressman, Am. Comp]. 1] l9; and to hurt his reelection campaign, see to. It] n2; see oiso iol 1i 2. Because the alleged conspiracy?s ?purpose? was purportedly to harm Plaintiff?s personal and political reputation in California or L111, it ?has no connection with the Virginia forum? and does not create jarisdiction over McClatchy. Goiostion, "?50 F. Supp. 2d at 675 {finding no jurisdiction over nonresident defendant based on an alleged conspiracy with Virginia resident}. CONCL USIDN The Court should dismiss the Complaint for lack of personaljurisdiction oyer McClatchy. 20 Datcd: EL 24319 0/ cc (3 Schwartz (VSE 4 WEB 34) DUNN ER LLP 105!) Connecticut Avc. NW DE. 20035 (292} 955-3242 Facsimilc: {2:32} 53121-9522 jachwa?z?gib3cndum.mm . Bcutrcuc Jr. (pr-c vice tc bc filcd) 333 Scull: Grand Ave. CA WWI-3197 [213) 229*?3?4 Facsimilc: {213} 229?5304 for Specially Defendant ?le Company 21 CERTIFICATE OF certif}f that an this 9th day cf September, 2019, I caused a true and ccrrect cap}; cf the in be served by email, an the fellcwing: Steven S. Elsa, Esq. atevcnhiaa?em1hliak.net Counaeffcr Piafnfg?r?evin G. Nance sew, DUNN a, Ca 5D Ccnneeticut Ave. NW DIS. Telephcne: (2132} 955-3242 Facsimile: {202) 530-9522