IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLANDMORT FERTEL :
:
v. : Civil No. CCB-13-2922
:
JAN DAVIDSON :
:
MEMORANDUM 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.
BACKGROUNDDavidson, 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 [offensive link removed], 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� 2
phone session with him. (Print-out of [offensive link removed},
ECF No. 6-4, at 1.) It also offers a �100% Money-Back Guarantee.� (Print-out of
http://[offensive link removed] /marriage-tele-boot-camp.asp, 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 3
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 Ripoffreport.com, 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 Ripoffreport.com, that one entitled �Mort
Fertel Marriage Fitness, Marriage Max, Mort Fertel.com 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
������������������������������������������������������������
1
Davidson admits this was a typographical error. (Def.�s Mot. to Dismiss at 7.) 4
Davidson also posted on Ripoffreport.com 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 Ripoffreport.com, �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, Ripoffreport.com 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
www.ripoffreport.com/FileReport.aspx, ECF
No. 12.) Ripoffreport.com 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.)
STANDARD 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
������������������������������������������������������������
2
Fertel states that Davidson �recounts that on each of her defamatory postings, she deliberately
listed the location of Plaintiff�s business as Maryland (but for one post in which she made a
typographical error and wrote Baltimore, MA).� (Pl.�s Resp., ECF No. 7, at 2.) Davidson�s
account of her posts, however, suggests that only two of them referenced Maryland. It therefore
appears that Fertel has misread Davidson�s papers. Nevertheless, even assuming that all the
posts listed MarriageMax�s location as in Baltimore, Maryland, the below analysis remains
unchanged. 5
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
������������������������������������������������������������
3
In ruling on a Rule 12(b)(2) motion, the court may also consider evidence outside the
pleadings. Structural Preservation Sys., LLC v. Andrews, 931 F. Supp. 2d 667, 671 (D. Md.
2013) (citations omitted); see also Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)
(suggesting that the court may consider evidence outside the pleadings when determining its
jurisdiction).
4
Although the statutory and constitutional inquiries merge, the court still must consider whether
the defendant�s activities are covered by the long-arm statute. See Dring v. Sullivan, 423 F.
Supp. 2d 540, 545 (D. Md. 2006). Here, Fertel does not identify the relevant Maryland statute,
Md. Code Ann., Cts. & Jud. Proc. � 6-103, but rather relies on the �effects� test set forth in
Calder v. Jones, 465 U.S. 783 (1984). 6
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 the exercise of personal jurisdiction would be constitutionally
�reasonable.�� Carefirst, 334 F.3d at 397.
ANALYSIS Fertel argues that Davidson�s posts to TrustPilot and Ripoffreport.com constitute
defamatory statements �willfully target[ed] . . . at a Maryland business . . . with the specific
intent to harm that business,� such that they give rise to specific jurisdiction. The court may put
aside Davidson�s other few contacts with Maryland�namely, her act of purchasing the TeleBoot
Camp program from a Maryland company, her various phone and email communications
with MarriageMax employees, and her attempt to send the program back to MarriageMax�
because Fertel does not rely on them in arguing personal jurisdiction. (See, e.g., Pl.�s Resp. at 7
(stating that Davidson�s contacts with Maryland were her online posts listing Maryland as
MarriageMax�s location).)
������������������������������������������������������������
5
In cases where the defendant�s contacts with the forum state are the basis for the lawsuit, those
contacts may establish specific jurisdiction. See ALS Scan, Inc. v. Digital Serv. Consultants,
Inc., 293 F.3d 707, 712 (4th Cir. 2002). By contrast, if the defendant�s contacts are not the basis
for the lawsuit, then the defendant�s continuous and systematic, but unrelated, contacts with the
forum state may establish general jurisdiction. See id. Fertel concedes that Davidson is not
subject to general jurisdiction in Maryland. Accordingly, the court need only address whether
Davidson is subject to specific jurisdiction. 7
As a preliminary matter, the court notes that whether exercising personal jurisdiction over
a nonresident defendant comports with due process is a federal question. See Catalana v.
Carnival Cruise Lines, Inc., 618 F. Supp. 18, 20 (D. Md. 1984), aff�d, 806 F.2d 257 (4th Cir.
1986) (unpublished opinion); see also Carefirst, 334 F.3d at 397�98 (applying federal law to
determine whether the exercise of personal jurisdiction satisfies due process). Fertel criticizes
Davidson for not citing MaryCLE, LLC v. First Choice Internet, Inc., 166 Md. App. 481, 890
A.2d 818 (2006), but MaryCLE is a state court opinion and not analogous to the present case.
Indeed, Fertel does not explain how MaryCLE is similar to this case, other than the observation
that both cases involve the Internet. (See Pl.�s Resp. at 3�4.) MaryCLE involved an out-of-state
marketing company that sent email messages directly to Maryland residents, unlike Davidson�s
web postings. See 166 Md. App. at 489�92, 890 A.2d at 823�24. The court in MaryCLE
decided that sending email messages to Maryland residents amounted to �purposeful[]
avail[ment] . . . of the privilege of conducting business in Maryland��a basis for personal
jurisdiction that is not alleged in the present case. See id. at 505, 890 A.2d at 832 (internal
quotation marks omitted). MaryCLE, in short, does not control the court�s determination of
whether Davidson�s Internet posts may lead to personal jurisdiction in Maryland.
Turning to the standard for whether Internet activity may lead to personal jurisdiction
over an out-of-state defendant, the Fourth Circuit has explained that the mere act �of placing
information on the Internet is not sufficient by itself to subject[] that person to personal
jurisdiction in each State in which the information is accessed.� Carefirst, 334 F.3d at 399
(citation and internal quotation marks omitted). Rather, the court may exercise personal
jurisdiction over an out-of-state individual when she �(1) directs electronic activity into the
[forum] State, (2) with the manifested intent of engaging in business or other interactions within 8
the State, and (3) that activity creates, in a person within the State, a potential cause of action
cognizable in the State�s courts.� ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707,
714 (4th Cir. 2002).
Interpreting prongs (1) and (2) of the above test, the Fourth Circuit in Young v. New
Haven Advocate, 315 F.3d 256 (4th Cir. 2002), considered whether there is personal jurisdiction
over Connecticut defendants based on the following: �(1) the [defendants], knowing that [the
plaintiff, the warden of a Virginia prison,] was a Virginia resident, intentionally discussed and
defamed him in their [newspaper] articles, (2) the newspapers posted the articles on their
websites, which were accessible in Virginia, and (3) the primary effects of the defamatory
statements on [the plaintiff�s] reputation were felt in Virginia.� Id. at 261�62. The court
reasoned that, to be subject to personal jurisdiction in Virginia, the out-of-state defendants had to
�through the Internet postings, manifest an intent to target and focus on Virginia readers.� Id. at
263. In determining whether there was such a focus on Virginia readers, the court examined the
�general thrust and content� of the newspapers� websites as well as the specific articles at issue.
Id. The court concluded that the newspapers� websites were designed to serve local interests,
including �provid[ing] their local markets with a place for classified ads.� Id. Likewise,
although the newspaper articles named the plaintiff and discussed the �allegedly harsh conditions
at the [Virginia] prison,� they were not targeted at a Virginia audience. Id. at 263�64. Rather,
the court concluded, the newspaper articles targeted a Connecticut audience because they
focused on the Connecticut prisoner transfer policy that brought Connecticut prisoners to
Virginia prisons. Id. at 259, 263�64.
Applying Young, there is nothing in Davidson�s Internet posts to suggest that they were
meant for a Maryland audience, as opposed to a national or even a global audience, and thus, her 9
conduct fails prongs (1) and (2). To begin, the TrustPilot and Ripoffreport.com posts are
available not just in Maryland, but nationally and globally, respectively. That they may be
accessed in Maryland is not enough for personal jurisdiction. See Carefirst, 334 F.3d at 399.
Furthermore, the subject matter of Davidson�s posts was not focused on Maryland; rather, the
only mention of Maryland came from including MarriageMax�s address and listing the location
of MarriageMax as Baltimore, Maryland. But simply listing MarriageMax�s address and
referring to Baltimore, Maryland as the location of MarriageMax is not equivalent to targeting a
Maryland audience. Although MarriageMax is based out of Maryland, it does not sell products
only to individuals in Maryland; indeed, the MarriageMax website indicates that the Tele-Boot
Camp program has been featured in various television broadcasts and national publications,
suggesting that the company has a national customer base. (See Print-out of
http://www.[offensive link removed] marriage-tele-boot-camp.asp at 1.) While Davidson�s posts
indicate a desire to share information with potential MarriageMax customers, it is pure
speculation that she was attempting to direct this information to potential MarriageMax
customers located in Maryland. If anything, Davidson�s apparent frustration with
MarriageMax�s return policy suggests a desire to communicate with as many potential customers
as possible, and not just the company�s potential customer base in Maryland. Because
Davidson�s posts were not directed at Maryland, they cannot form the basis for personal
jurisdiction.
Fertel appears to argue that, because visitors to Ripoffreport.com may conduct searches
by city or state and find Davidson�s posts, Davidson intended to target a Maryland audience.
This argument cannot stand. Examining the �File a Report� page of Ripoffreport.com�which is
where Fertel suggests that Davidson listed MarriageMax�s location, (see Pl.�s Resp. at 2)�it 10
seems that the page is meant to identify the company or individual being reported. (See Print-out
of
www.ripoffreport.com/FileReport.aspx.) The page requests the name of the company or
individual being reported, along with the address (either the physical street address or web
address) for the company or individual. (See id.) It does not give any indication that, by
entering this information, the consumer�s subsequent posts will be limited to a particular
geographical audience or will be in any way highlighted for certain visitors of the website. In
fact, as indicated above, reports on Ripoffreport.com are available globally. Based on these
facts, the court cannot infer that, by entering MarriageMax�s name and location, Davidson had
the manifest intent to reach a Maryland audience. Rather, by entering this information, Davidson
likely intended to identify the company against which she had a grievance.
Finally, Fertel attempts to liken this case to Calder v. Jones, 465 U.S. 783 (1984), by
arguing that Davidson knew he was located in Maryland and, therefore, she was aware that any
harm would be felt in Maryland. But Calder did not just involve out-of-state defendants who
were aware that harm might be felt in the forum state of California. Rather, the defendants
engaged in �intentional, and allegedly tortious, actions . . . expressly aimed at California,� and as
a result, they could foresee harm being felt in that state. See 465 U.S. at 789�90 (emphasis
added). In particular, the defendants in Calder published an article regarding �the California
activities of a California resident,� that was �drawn from California sources� and �impugned the
professionalism of an entertainer whose television career was centered in California.� Id. at
788�89. Perhaps most notable, the article was published in a national weekly newspaper that
drew a large portion of its readership from California; of its total circulation of over 5 million,
�[a]bout 600,000 of those copies, almost twice the level of the next highest State [we]re sold in
California.� Id. at 785. As explained above, missing in the present case is conduct expressly 11
aimed at Maryland. Davidson�s posts instead would appeal to a national, or even global,
audience. Unlike in Calder, there is nothing to suggest that TrustPilot and Ripoffreport.com
draw a significant portion of their readership from Maryland. Moreover, whereas Calder
involved multiple connections to the forum state of California, the only Maryland connections in
this case are that (1) Fertel and MarriageMax happen to be located there and (2) Davidson
identifies this fact in her Internet posts. Thus, in light of the fact that her posts were not aimed at
a Maryland audience, it is not enough to say that Davidson could foresee harm to Fertel in
Maryland. Davidson did not expressly aim her electronic activity at Maryland.
CONCLUSION For the reasons stated above, the court will grant Davidson�s motion to dismiss for lack
of personal jurisdiction. A separate order follows.
December 18, 2013 /s/
Date Catherine C. Blake
United States District Judge IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MORT FERTEL :
::
v. : Civil No. CCB-13-2922
:
JAN DAVIDSON :
:
:
ORDERFor the reasons stated in the accompanying Memorandum, it is hereby ORDERED that:
1. Defendant Jan Davidson�s motion to dismiss for lack of personal jurisdiction (ECF No. 6)
is Granted;
2. This case is Dismissed;
3. The Clerk shall CLOSE this case; and
4. The Clerk shall send copies of this Order and the accompanying Memorandum to counsel
of record.
December 18, 2013 /s/
Date Catherine C. Blake
United States District Judge
