PD

PD

F-

XC

h a n g e Vi e

F-

XC

h a n g e Vi e

er

er

O W

bu

to

lic

lic

to

bu

N
.c

O W
w
.d o
c u -tr a c k

.d o

c u -tr a c k

.c

ALS SCAN, INC. v. DIGITAL SERVICE CONSULTANTS

Cite as 293 F.3d 707 (4th Cir. 2002)

707

2. Federal Courts O776, 870.1 ALS SCAN, INCORPORATED, PlaintiffAppellant, v. DIGITAL SERVICE CONSULTANTS, INCORPORATED, Defendant Appellee, and Robert Wilkins; Alternative Products, Incorporated, d/b/a abpefarc.net, individually, Defendants. No. 011812. United States Court of Appeals, Fourth Circuit. Argued April 4, 2002. Decided June 14, 2002. Owner of copyrighted photographs brought infringement action against host of website where photographs were being displayed and hosts nonresident Internet service provider (ISP). The United States District Court for the District of Maryland, Alexander Harvey II, Senior District Judge, 142 F.Supp.2d 703, granted ISPs motion to dismiss for lack of personal jurisdiction, and owner filed interlocutory appeal. The Court of Appeals, Niemeyer, Circuit Judge, held that: (1) ISPs activities were merely passive and did not support exercise of personal jurisdiction over ISP in Maryland, and (2) Maryland could not exercise general jurisdiction over ISP. Affirmed. 1. Federal Courts O660.35 District court order directing that plaintiffs interlocutory appeal of dismissal of one defendant be transmitted to the Court of Appeals fulfilled requirements of rule permitting court to certify right to file interlocutory appeal and enter judgment on fewer than all claims. Fed.Rules Civ. Proc.Rule 54(b), 28 U.S.C.A. 4. Constitutional Law O305(5) If determining whether nonresident defendants contacts with a state establish specific jurisdiction, consistent with the due process clause, court considers (1) the extent to which the defendant purposefully availed itself of the privilege of conducting activities in the state; (2) whether the plaintiffs claims arise out of those activities directed at the state; and (3) whether the exercise of personal jurisdiction would be constitutionally reasonable. U.S.C.A. Const.Amend. 14. 5. Federal Courts O76.5 If nonresident defendants contacts with state are not also the basis for suit, then jurisdiction over the defendant must arise from the defendants general, more persistent, but unrelated contacts with the state. 6. Constitutional Law O305(5) To establish general jurisdiction over nonresident defendant, consistent with due process clause, the defendants activities in the state must have been continuous and systematic, a more demanding standard than is necessary for establishing specific jurisdiction. U.S.C.A. Const.Amend. 14. District courts decision to dismiss complaint for lack of personal jurisdiction presents a legal question that Court of Appeals reviews de novo, although Court reviews any underlying factual findings for clear error. 3. Courts O12(2.1) Under Maryland law, Marylands long-arm statute expands Marylands exercise of personal jurisdiction to the extent allowed by the Due Process Clause of the Fourteenth Amendment. U.S.C.A. Const. Amend. 14; Md.Code, Courts and Judicial Proceedings, 6103.

w w
w

w
w

PD

PD

F-

XC

h a n g e Vi e

F-

XC

h a n g e Vi e

er

er

O W

bu

to

lic

lic

to

bu

N
.c

O W
w
.d o
c u -tr a c k

.d o

c u -tr a c k

.c

712

293 FEDERAL REPORTER, 3d SERIES

1868, 80 L.Ed.2d 404 (1984); Christian Science Bd., 259 F.3d at 216. If the defendants contacts with the State are also the basis for the suit, those contacts may establish specific jurisdiction. In determining specific jurisdiction, we consider (1) the extent to which the defendant purposefully avail[ed] itself of the privilege of conducting activities in the State; (2) whether the plaintiffs claims arise out of those activities directed at the State; and (3) whether the exercise of personal jurisdiction would be constitutionally reasonable. See Christian Science Bd., 259 F.3d at 216; see also Helicopteros, 466 U.S. at 414 & n. 8, 104 S.Ct. 1868 (describing a basis for jurisdiction where a controversy is related to or arises out of a defendants contacts with the forum). [5, 6] On the other hand, if the defendants contacts with the State are not also the basis for suit, then jurisdiction over the defendant must arise from the defendants general, more persistent, but unrelated contacts with the State. To establish general jurisdiction over the defendant, the defendants activities in the State must have been continuous and systematic, a more demanding standard than is necessary for establishing specific jurisdiction. See Helicopteros, 466 U.S. at 414 & n. 9, 104 S.Ct. 1868; ESAB Group, 126 F.3d at 623. III [7] In this case, ALS Scan argues that Digitals activity in enabling Alternative Products publication of the infringing photographs on the Internet, thereby causing ALS Scan injury in Maryland, forms a proper basis for the district courts specific jurisdiction over Digital. The question thus becomes whether a person electronically transmitting or enabling the transmission of information via the Internet to Maryland, causing injury there, subjects the person to the jurisdiction of a court in

Maryland, a question of first impression in the Fourth Circuit. Applying the traditional due process principles governing a States jurisdiction over persons outside of the State based on Internet activity requires some adaptation of those principles because the Internet is omnipresentwhen a person places information on the Internet, he can communicate with persons in virtually every jurisdiction. If we were to conclude as a general principle that a persons act of placing information on the Internet subjects that person to personal jurisdiction in each State in which the information is accessed, then the defense of personal jurisdiction, in the sense that a State has geographically limited judicial power, would no longer exist. The person placing information on the Internet would be subject to personal jurisdiction in every State. But under current Supreme Court jurisprudence, despite advances in technology, State judicial power over persons appears to remain limited to persons within the States boundaries and to those persons outside of the State who have minimum contacts with the State such that the States exercise of judicial power over the person would not offend traditional notions of fair play and substantial justice. See Hanson, 357 U.S. at 25051, 78 S.Ct. 1228 (noting that it is a mistake to assume that [the technological] trend heralds the demise of all restrictions). But even under the limitations articulated in International Shoe and retained by Hanson, the argument could still be made that the Internets electronic signals are surrogates for the person and that Internet users conceptually enter a State to the extent that they send their electronic signals into the State, establishing those minimum contacts sufficient to subject the sending person to personal jurisdiction in the State where the

w w
w

w
w

PD

PD

F-

XC

h a n g e Vi e

F-

XC

h a n g e Vi e

er

er

O W

bu

to

lic

.d o

c u -tr a c k

.c

AUTHORIZED FOR EDUCATIONAL USE ONLY

lic

to

bu

N
w

O W
.d o
c u -tr a c k

.c

Date of Printing: Sep 25, 2010 KEYCITE ALS Scan, Inc. v. Digital Service Consultants, Inc., 293 F.3d 707, 2002 Copr.L.Dec. P 28,446, 52 Fed.R.Serv.3d 1121, 63 U.S.P.Q.2d 1389 (4th Cir.(Md.),Jun 14, 2002) (NO. 01-1812) History Negative Citing References (U.S.A.) Declined to Follow by 1 Hy Cite Corp. v. Badbusinessbureau.com, L.L.C., 297 F.Supp.2d 1154, 70 U.S.P.Q.2d 1266 (W.D.Wis. Jan 08, 2004) (NO. 03-C-0421-C) (BNA Version) Distinguished by 2 Consulting Engineers, Inc. v. Geometric Software Solutions, 2007 WL 1072010 (E.D.Va. Apr 03, 2007) (NO. 1:06CV956(JCC)) HN: 4 (F.3d) 3 Motley Rice, LLC v. Baldwin & Baldwin, LLP, 518 F.Supp.2d 688, 69 Fed.R.Serv.3d 632 (D.S.C. Jul 30, 2007) (NO. C.A.2:07-01368-PMD) HN: 7,9 (F.3d) 4 Tamburo v. Dworkin, 601 F.3d 693, 2010-1 Trade Cases P 76,963 (7th Cir.(Ill.) Apr 08, 2010) (NO. 08-2406) 5 Cleaning Authority, Inc. v. Neubert, 2010 WL 3516939 (D.Md. Sep 07, 2010) (NO. JFM09-CV-03447, JFM-10-CV-00203) HN: 7,9,10 (F.3d)

2010 Thomson Reuters. All rights reserved.

w w
w

w
w