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Fertel v. Davidson

United States District Court, Fourth Circuit

December 18, 2013



CATHERINE C. BLAKE, District Judge.

Plaintiff Mort Fertel ("Fertel") brings this defamation lawsuit against defendant Jan Davidson ("Davidson"), claiming that her statements posted on the Internet have caused harm to his reputation and business and resulted in mental anguish and humiliation. Davidson now moves to dismiss for lack of personal jurisdiction. The issues in this case have been fully briefed, and no hearing is necessary. See Local R. 105.6. For the reasons stated below, the motion to dismiss will be granted.


Davidson, a resident of California since 1975, is a fifty-six-year-old mother of two children and an artist by profession. ( See Aff. of Davidson, ECF No. 6-2, at ¶ 2.) She works from her home in California. ( Id. ) Fertel is the owner of MarriageMax Inc. ("MarriageMax"), a Maryland corporation that offers a step-by-step system for addressing marital problems. (Def.'s Mot. to Dismiss, ECF No. 6-1, at 2; see also Print-out of, ECF No. 6-3, at 1.)

The "Marriage Fitness Tele-Boot Camp" program is the most popular MarriageMax program and includes seven "[t]ele-[s]eminars" hosted by Fertel as well as a private "1-on-1" phone session with him. (Print-out of, ECF No. 6-4, at 1.) It also offers a "100% Money-Back Guarantee." (Print-out of, ECF No. 6-5, at 9.) The return policy provides that, if the consumer is not satisfied "for any reason, " she may return the program, so long as it is in "resalable condition, " it is returned within thirty days of ordering, and the consumer has had her "private 1-on-1 session [with Fertel]." ( Id. )

Struggling in her marriage, Davidson sought marriage counseling programs and found MarriageMax through a Google search conducted from her California home. (Aff. of Davidson at ¶ 3.) On May 28, 2013, she purchased the Tele-Boot Camp program through the MarriageMax website, and the program arrived a few days later. (Def.'s Mot. to Dismiss at 3; see also Aff. of Davidson at ¶¶ 3-4.) Despite being "put off" by Fertel's voice, Davidson and her husband attempted the program for the next three weeks. (Aff. of Davidson at ¶ 4.) Because "[t]he program instructs customers to get as far into the program as possible" before scheduling the private phone session with Fertel, Davidson did not schedule the session during those three weeks. ( Id. ) Finally, Davidson and her husband decided not to continue the program. ( Id. at ¶ 5.)

On June 20, 2013, during regular business hours, Davidson called MarriageMax customer service to gather information about returning the product for a refund. ( Id. ) When no one answered the phone, she left a voicemail. ( Id. ) Davidson called again the next day when she did not hear back from MarriageMax, but she was still unable to reach anyone. ( Id. ) On June 25, 2013, she spoke with a customer service representative, who provided her with a link to MarriageMax's return policy. ( Id. at ¶ 6.) Davidson then realized that she needed to schedule the phone session with Fertel and, accordingly, she emailed customer service to inquire about how to schedule the session. ( Id. ) On June 26, 2013, customer service emailed Davidson an online link to make the appointment with Fertel. ( Id. at ¶ 7.) Davidson visited the link that day, and learned that the next available date for a session with Fertel was July 29, 2013. ( Id. ) Because this date was over a month away, she called and emailed customer service to ask for an extension of the return policy. ( Id. ) Customer service informed Davidson that she could not get a refund without the session with Fertel, and that only Fertel's assistants had authority to grant an exception to the return policy. ( Id. ) On July 27, 2013, Fertel's assistant verified that Davidson was not eligible for a refund, writing in an email that she had not met the requirements for returning the program. ( Id. at ¶ 8.) Davidson again called and emailed customer service, but was unsuccessful in getting an exception to MarriageMax's return policy. ( Id. at ¶ 9.) She attempted to mail the program to MarriageMax on July 8, 2013, but, a few weeks later, MarriageMax sent the program back to Davidson without providing a refund. ( Id. )

Following her communications with MarriageMax, Davidson wrote about her experiences on the websites TrustPilot and, which have a national and global audience, respectively. ( See id. at ¶ 10.) On July 21, 2013, Davidson posted a review of MarriageMax-entitled "Company's Requirements for 100% Money Back Guarantee were Impossible to Meet!"-on TrustPilot. (Def.'s Mot. to Dismiss at 5; see also Aff. of Davidson at ¶ 10.) The same day, she wrote a similar review on, that one entitled "Mort Fertel Marriage Fitness, Marriage Max, Mort FRADULENT [sic] MONEYBACK GUARANTEE - DON'T BE FOOLED!" (Def.'s Mot. to Dismiss at 6; see also Aff. of Davidson at ¶ 10.) The header section of the post included MarriageMax's Maryland address and also listed the location of MarriageMax as "Baltimore MA." (Def.'s Mot. to Dismiss at 7.)[1] Davidson also posted on on July 21, 2013; the post was entitled "REFUND TERMS ARE NEARLY IMPOSSIBLE TO MEET." ( Id. ) On August 7, 2013, Davidson wrote another review on, "Mortel Fertel Marriage Max Deceptive Return Policy - Terms are Impossible to Meet - Don't Buy Unless You Can Afford Ton [sic] Lose $400." ( Id. at 8.) In the heading of the post, the location of MarriageMax was listed as "Baltimore Maryland." ( Id. )[2]

According to Fertel, allows a listing of "Internet" for the location of a business. Thus, Davidson did not need to name the state where MarriageMax is located. ( See Pl.'s Resp., ECF No. 7, at 2; see also Print-out of, ECF No. 12.) allows visitors of the website to conduct searches by city, state, zip code, or company name. (Pl.'s Resp. at 8.) Because MarriageMax's location was listed as Baltimore, Maryland, searches by "Baltimore" or "Maryland" presumably would include Davidson's reviews of MarriageMax. ( See id. )


Pursuant to Federal Rule of Civil Procedure 12(b)(2), a challenge to personal jurisdiction "is to be resolved by the judge, with the burden on the plaintiff ultimately to prove grounds for jurisdiction by a preponderance of the evidence." Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003). When the court resolves a motion to dismiss based on lack of jurisdiction without an evidentiary hearing, however, "the plaintiff need only make a prima facie showing of personal jurisdiction." Id. (citing Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989)). "[T]he court must construe all relevant pleading allegations in the light most favorable to the plaintiff, assume credibility, and draw the most favorable inferences for the existence of jurisdiction." Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 62 (4th Cir. 1993) (quoting Combs, 886 F.2d at 676).[3]

A federal court sitting in diversity may exercise personal jurisdiction over a nonresident defendant "if (1) an applicable state long-arm statute confers jurisdiction and (2) the assertion of that jurisdiction is consistent with constitutional due process." Nichols v. G.D. Searle & Co., 991 F.2d 1195, 1199 (4th Cir. 1993). Maryland's long-arm statute is coextensive with the scope of jurisdiction permitted by the Due Process Clause of the Fourteenth Amendment; therefore, the statutory and constitutional inquiries merge. See Carefirst, 334 F.3d at 396-97.[4] A court's exercise of jurisdiction over a nonresident defendant comports with due process if the defendant has "minimum contacts" with the forum, such that requiring the defendant to defend her interests in that state "does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal quotation marks omitted). "The minimum contacts test requires the plaintiff to show that the defendant purposefully directed his activities at the residents of the forum' and that the plaintiff's cause of action arise[s] out of' those activities." Consulting Eng'rs Corp. v. Geometric Ltd., 561 F.3d 273, 277 (4th Cir. 2009) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)).

The Fourth Circuit has outlined a three-pronged test for determining whether the exercise of specific jurisdiction comports with due process.[5] Under this test, courts must consider "(1) the extent to which the defendant has 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 ...

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