[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 1, 2006
No. 05-13687 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00515-CV-FTM-33-SPC
MICHAEL SNOW,
Plaintiff-Appellant,
versus
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.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 1, 2006)
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
dissmissal for lack of personal jurisdiction, we also affirm.
I. B ACKGROUND
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
2
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
1
Snow submitted documentation showing over 1,800 cases pending in Florida district
courts with DirecTV as a party. This number does not include the countless demand letters sent
on DirecTV’s behalf to individuals suspected of pirating DirecTV’s satellite transmissions.
3
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. S TANDARDS OF R EVIEW
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).
2
Yarmuth joined the motion conditioned on the denial of its Rule 12(b)(2) motion.
4
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. D ISCUSSION
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
5
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
6
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
3
For example, the only allegation that mentions acts committed in Florida states:
“DIRECTV, STUMP, and YARMUTH have committed, and conspired to commit, acts and have
acted alone and in concert to commit acts within the State of Florida . . . relevant to and giving
rise to the claims herein.”
7
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. 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 permissible
4
A Yarmuth employee admitted to accessing Snow’s website, which was hosted on
Globat’s servers. The employee was in Seattle, Washington. According to documentation
submitted by Yarmuth that was not disputed by Snow, Globat’s servers were located in
California. Snow claims that the unauthorized access of the website caused injury in Florida
because he was physically located in Florida.
8
under the Due Process Clause. See Woods v. Nova Cos. Belize Ltd., 739 So. 2d
617, 620 (Fla. Dist. Ct. App. 1999); Helicopteros, 466 U.S. at 415-16, 104 S. Ct. at
1872-73.
Snow’s complaint states that Yarmuth, its shareholders and associates have
been conducting business in Florida and in Florida courts on DirecTV’s behalf and
in conjunction with Stump. Yarmuth does not argue that it has no contacts with
Florida, but claims that its contacts are few. According to Wilsdon’s affidavit,
Yarmuth is a law firm organized and located solely in Seattle, Washington. It has
never maintained any physical presence (e.g., office, mailing address, or registered
agent) in Florida, nor has it ever solicited clients in Florida. None of its attorneys
are admitted to the Florida bar. Wilsdon also states, however, that Yarmuth has
represented four Florida-based clients in matters pending in Washington’s state
courts. Its attorneys have conducted pre-litigation negotiations through telephone
communications, electronic mail, and traditional mail with many Florida residents
suspected of pirating DirecTV’s satellite signal,5 and have represented DirecTV in
three piracy-related cases in Florida. According to Wilsdon, Yarmuth’s
representation of Florida clients and of DirecTV in Florida cases generated less
than one percent of the law firm’s total revenue.
5
Wilsdon states that the number is unknown. Snow claims many.
9
Snow counters that Wilsdon understated Yarmuth’s ties with Florida. Snow
provided documentation showing Yarmuth attorneys listed as the counsel of record
in four Florida cases other than the ones listed by Wilsdon.6 Snow also submitted
documentation showing DirecTV was a party in 1,820 lawsuits in the federal
district courts in Florida. Snow presented no evidence linking Yarmuth to these
cases.
Based on the allegations, the affidavits, and the supporting documentation,
we find no “continuous and systematic” contacts sufficient to subject Yarmuth to
general jurisdiction in Florida. Any suggestion that Yarmuth was involved in all
1,820 of DirecTV’s Florida cases is speculation. Yarmuth’s negotiations on
DirecTV’s behalf with some Florida residents, its seven appearances as counsel of
record for DirecTV, and its representation of four Florida clients in Washington
courts are not enough to establish general jurisdiction, when balanced against
Yarmuth’s lack of a physical presence in Florida, its non-solicitation of Florida
clients, and its deriving less than one percent of its revenues from matters
connected with Florida. Yarmuth falls outside the scope of § 48.193(2).
Because Yarmuth is not subject to jurisdiction under Florida’s long-arm
6
Snow’s attorney also provided an affidavit and transcript documenting a Yarmuth
attorney’s attempt to depose in Florida a witness subpoenaed in connection with a case pending
in the Southern District of Iowa.
10
statute, we need not address whether the Due Process Clause permits jurisdiction.
We affirm the grant of Yarmuth’s motion to dismiss.
B. Dismissal of Snow’s Complaint for Failure to State a Claim
We now turn to the motion to dismiss for failure to state a claim. We hold
that Snow did not allege the material elements necessary to state a claim under the
SCA. Our analysis begins with a general discussion of pleading standards. We
then address the requirements of stating a claim under the SCA, and finally
conclude our analysis by examining the four corners of Snow’s complaint.
1. Pleading Standards
All facts set forth in a plaintiff’s complaint are to be accepted as true.
Oxford Asset Mgmt., 297 F.3d at 1188. A complaint will not be dismissed “unless
it is plain that the plaintiff can prove no set of facts that would support the claims
in the complaint.” Id. “However, conclusory allegations, unwarranted deductions
of facts or legal conclusions masquerading as facts will not prevent dismissal.” Id.;
see also Kaempe v. Myers, 367 F.3d 958, 963 (D.C. Cir. 2004) (“[W]e will not
accept inferences drawn by plaintiffs if such inferences are unsupported by the
facts set out in the complaint . . . .”) (quotations omitted). “[Our] duty to liberally
construe a plaintiff’s complaint in the face of a motion to dismiss is not the
equivalent of a duty to re-write it for [the plaintiff].” Peterson v. Atlanta Hous.
11
Auth., 998 F.2d 904, 912 (11th Cir. 1993).
Rule 8(a) requires that the complaint contain only “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a). A plaintiff need not plead specific facts for every element of a cause of
action. See Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th
Cir. 2001); St. Joseph’s Hosp., Inc. v. Hosp. Corp. of Am., 795 F.2d 948, 954 (11th
Cir.1986). However, a complaint must still contain either direct or inferential
allegations respecting all material elements of a cause of action. See Aware
Woman Ctr., 253 F.3d at 684; In re Plywood Antitrust Litig., 655 F.2d 627, 641
(5th Cir. Unit A Sept. 1981). “Thus, at a minimum, notice pleading requires that a
complaint contain inferential allegations from which we can identify each of the
material elements necessary to sustain a recovery under some viable legal theory.”
Aware Woman Ctr., 253 F.3d at 684 (emphasis added).
2. Stating a Claim under the SCA
The SCA was included as Title II of the Electronic Communications Privacy
Act of 1986 (“ECPA”), Pub. L. No. 99-508, 100 Stat. 1848 (codified as amended
in scattered sections of 18 U.S.C.). The ECPA was enacted to update the then
existing federal wiretapping law to protect the privacy of the growing number of
electronic communications. See 132 Cong. Rec. H4039 (1986) (statement of Rep.
12
Kastenmeier). Since its inception, the ECPA provided “several clear exceptions to
the bar on interception so as to leave unaffected electronic communication made
through an electronic communication system designed so that such communication
is readily available to the public .” 131 Cong. Rec. S11790-03 (1985) (statement
of Sen. Leahy on a bill that was the precursor to the ECPA); see also 131 Cong.
Rec. E4128 (1985) (statement of Rep. Kastenmeier on the same bill).
Indeed, the ECPA explicitly reads, “It shall not be unlawful under this
chapter or chapter 121 of this title for any person–(i) to intercept or access an
electronic communication made through an electronic communication system that
is configured so that such electronic communication is readily accessible to the
general public.” 18 U.S.C. § 2511(2)(g) (emphasis added). Chapter 121 refers to
the SCA. ECPA § 201. The legislative history and the statutory structure clearly
show that Congress did not intend to criminalize or create civil liability for acts of
individuals who “intercept” or “access” communications that are otherwise readily
accessible by the general public.
Through the World Wide Web, individuals can easily and readily access
websites hosted throughout the world. Given the Web’s ubiquitous and public
nature, it becomes increasingly important in cases concerning electronic
communications available through the Web for a plaintiff to demonstrate that those
13
communications are not readily accessible. If by simply clicking a hypertext link,
after ignoring an express warning, on an otherwise publicly accessible webpage,
one is liable under the SCA, then the floodgates of litigation would open and the
merely curious would be prosecuted. We find no intent by Congress to so permit.
Thus, the requirement that the electronic communication not be readily accessible
by the general public is material and essential to recovery under the SCA. Cf.
Aware Woman Ctr., 253 F.3d at 683-84 (treating the motive requirement of the
Freedom of Access to Clinic Entrances Act (“FACE”) as an essential element of a
FACE claim because the motive requirement filters out conduct that Congress
believes is not covered by FACE).
In addition to the “readily accessible” element, a valid civil complaint under
the SCA must allege a violation of one of its provisions. See 18 U.S.C. 2707(a)
(“[Any person] aggrieved by any violation of this chapter in which the conduct
constituting the violation is engaged in with a knowing or intentional state of mind
may, in a civil action, recover . . . .”). The provision at issue in the present case
states, “[Whoever] (1) intentionally accesses without authorization a facility
through which an electronic communication service is provided; or (2)
intentionally exceeds an authorization to access that facility; and thereby obtains . .
. a wire or electronic communication while it is in electronic storage [violates the
14
SCA].” 18 U.S.C. § 2701(a).
3. Snow’s Complaint
To survive a motion to dismiss, Snow must have alleged, at a minimum,
facts from which we could infer that his electronic bulletin board was not readily
accessible to the general public. Snow states that his website was a “non-
commercial private support group” website. This conclusory allegation, however,
provides little insight into whether the website is configured so that the
communications in the electronic bulletin board are not readily accessible. Snow
proceeds in his complaint to describe the process by which one gains access to the
electronic bulletin board.
According to the complaint, a person must register and create a password to
enter into and participate in the electronic bulletin board. Before registering and
logging into the electronic bulletin board, the proposed registrant is shown a notice
that requires the registrant to affirm his non-association with DirecTV. Two
options appear at the end of the notice: “I Agree to these terms” and “I do not agree
to these terms.” “If a person clicks on ‘I Agree to these terms’, that person is
allowed to enter into, view and participate in the electronic bulletin board within
the SCE Web site.” In sum, to access the electronic bulletin board messages, all
15
one needs to do is register, create a password, and click “I Agree to these terms.”7
Nothing inherent in any of these steps prompts us to infer that access by the
general public was restricted. Indeed, the facts alleged in Snow’s complaint lead
us to infer the opposite. We conclude this case is distinguishable from Konop v.
Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002), a Ninth Circuit case upon
which Snow relies heavily. In Konop, plaintiff Konop created a list of Hawaiian
Airlines employees who were eligible to access the website. Id. at 872. To gain
access, one had to enter an eligible employee’s name, create a password, and click
“SUBMIT” indicating acceptance of the terms and conditions, which prohibited
users from disclosing the website’s contents and prohibited viewing by Hawaiian
Airlines management. Id. at 872-73. In contrast, Snow alleged that registrants
needed only to create a password and acknowledge that they were not associated
with DirecTV or another prohibited entity. Konop’s website, unlike Snow’s,
required users wishing to view the electronic bulletin board’s contents to have
knowledge (an eligible employee’s name) that was not publicly available. Snow
had no such limitation. In order to be protected by the SCA, an Internet website
7
At oral argument, Snow stated that he prevented individuals from accessing his website
who used web-based, anonymous email accounts or computers with IP addresses assigned to
DirecTV. This argument does not change our analysis. Such facts cannot be inferred from the
complaint, which only alleges that “the integrity of the Web site and the privacy of its visitors”
was maintained by warning notices forbidding access by DirecTV and its agents.
16
must be configured in some way so as to limit ready access by the general public.
To be clear, we do not require a plaintiff to “plead in grave detail” all of a
website’s restrictive technical configurations, as intimated by Snow’s attorney at
oral argument. Here, a short simple statement that the plaintiff screens the
registrants before granting access may have been sufficient to infer that the website
was not configured to be readily accessible to the general public. However, Snow
failed to make this or any remotely similar allegation. Instead, Snow’s allegations
describe, in essence, a self-screening methodology by which those who are not the
website’s intended users would voluntarily excuse themselves. Because this is
insufficient to draw an inference that the website is not readily accessible to the
general public, Snow’s complaint fails to state a cause of action and it was proper
to dismiss it.
Accordingly, we affirm the district court’s grant of the defendants’ motion to
dismiss for failure to state a claim.
IV. C ONCLUSION
We affirm both the district court’s grant of Yarmuth’s motion to dismiss for
lack of personal jurisdiction and the defendants’ joint motion to dismiss for failure
to state a claim.
AFFIRMED.
17