Colón Motion to Dismiss – WMSCOG vs Colon, Newton VA #2011-17163

In December of 2011, the World Mission Society Church of God (WMSCOG) filed a $25 million lawsuit against the owner of this website and a former member claiming defamation among other things. Below are the relevant court documents. As you know, everything posted here on examiningthewmscog.com is well researched, well cited, and truthful to the best of my abilities (if it were not, it would be promptly corrected). More documents will be posted as they become available.

 

This is Defendent Colón’s Motion to Dismiss filed on 01/30/12 and the supporting Points and Authorities filed on 02/10/12 in response to the original Complaint on 12/06/11.  You may read it in PDF or text format below:

WMSCOG vs Colon, Newton - VA Case #2011-17163
Timeline
Defendant Colón Motion to Dismiss (PDF)

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Defendant Colón Motion to Dismiss (Text)

VIRGINIA :

IN THE CIRCUIT COURT OF FAIRFAX COUNTY

_______________________________________________________
WORLD MISSION SOCIETY CHURCH OF GOD, A NEW
JERSEY NON-PROFIT CORPORATION,
 

Plaintiff,        Case No.:  2011-17163

v.

MICHELE COLON AND
TYLER J. NEWTON

Defendants

_______________________________________________________

 

DEFENDANT MICHELE COLON’S MOTION TO DISMISS

Defendant Michele Colon moves to dismiss the Complaint filed by Plaintiff World Mission Society Church Of God, A New Jersey Non-Profit Corporation, for lack of both personal jurisdiction and subject-matter jurisdiction.  Ms. Colon will submit a memorandum of points and authorities in support of this Motion as and when required by the Calendar Control Judge.

MICHELE COLON
By Counsel

[Signature]
Lee E. Berlik (VSB# 39609)
BerlikLaw, LLC
11710 Plaza America Drive
Suite 120
Reston, Virginia  20190
Tel: (703) 722-0588
Fax: (888) 772-0161

 

VIRGINIA :

IN THE CIRCUIT COURT OF FAIRFAX COUNTY

_______________________________________________________
WORLD MISSION SOCIETY CHURCH OF GOD, A NEW
JERSEY NON-PROFIT CORPORATION,

 

Plaintiff,        Case No.  2011-17163

v.

MICHELE COLON AND
TYLER J. NEWTON

Defendants

_______________________________________________________

 

 

DEFENDANT MICHELE COLON’S MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT OF HER MOTION TO DISMISS

Defendant Michele Colon, by counsel, moves to dismiss this action for lack of personal jurisdiction.  Ms. Colon is a resident of New Jersey and objects to being haled into court in Virginia because she does not transact any business in Virginia and lacks sufficient minimum contacts with Virginia.  Moreover, this action does not arise from any activity in Virginia. Therefore, the Court should dismiss the case for lack of personal jurisdiction.

FACTS

Plaintiff is the New Jersey branch of a Korean-based doomsday church, called the “World Mission Society Church of God” (“WMSCOG”).  (See Defendant Michele Colon’s Affidavit in Support of Her Motion to Dismiss for Lack of Personal Jurisdiction (“Colon Aff.”) ¶ 3, attached hereto as Exhibit 1.)  Ms. Colon is a resident of New Jersey. (Id. ¶ 2.)  She and her husband were recruited to become members of Plaintiff in 2009. (Id. ¶ 4.)  Ms. Colon remained a member for about a year and a half. (Id. ¶ 5.)  During that time, she became aware of many of the bizarre and abusive practices of the WMSCOG. (Id. ¶ 6.)  As a result, Ms. Colon became disillusioned, and she began openly questioning the church. (Id. ¶ 7.)  She was eventually “disfellowshipped,” and told that she could not return to the church. (Id. ¶ 8.)  The Plaintiff further retaliated against Ms. Colon by ordering her husband to terminate his relationship with her. (Id. ¶ 9.)

Ms. Colon’s experience inspired her to start a public awareness campaign in New Jersey to warn people about the WMSCOG. (Id. ¶ 10.)  That campaign gave rise to the instant lawsuit, in which Plaintiff complains of two distinct types of activities that Ms. Colon engaged in.  First, Plaintiff complains that Ms. Colon attended a series of Planning Board meetings in Ridgewood, New Jersey, at which she allegedly made defamatory statements. (Compl. ¶¶ 21-22, 24.)  Second, Plaintiff complains that Ms. Colon posted allegedly defamatory statements and videos about the WMSCOG to various websites on the Internet, including the website of co-Defendant Tyler Newton, www.examiningthewmscog.com (Compl. ¶¶ 66-94; see also Exh. A attached to Colon Aff.), as well as Facebook (Compl. ¶¶ 27-31), YouTube (Compl. ¶¶ 53, 57, 95-120), business review websites (Compl. ¶¶ 34-48), and Internet discussion forums (Compl. ¶¶ 49-65).

All of the statements and videos that Ms. Colon has uploaded to the Internet with respect to the WMSCOG have been uploaded in New Jersey. (Colon Aff. ¶ 15.)  Moreover, Ms. Colon has never sold any goods or services, entered into any contracts, raised any revenue, or collected any donations through any of the websites that she utilized when posting material about the WMSCOG to the Internet. (Id. 1] 16.)  The websites used by Ms. Colon were designed for users like her to post and share information, not to buy and sell goods or services, or to exchange money. (Id. ¶ 17.)

Furthermore, Ms. Colon has no connection whatsoever to the Commonwealth of Virginia. (Id. ¶ 18.)  She has never been to Virginia. (Id)  She has never lived in nor been employed in Virginia. (Id)  She has never transacted or solicited any business in Virginia. (Id)  She has never contracted to supply services or things in Virginia. (Id)  She has never owned real or personal property in Virginia. (Id)  She has never derived any revenue of any kind from goods used or consumed in Virginia, or from services rendered in Virginia. (Id)  She has never engaged in a persistent course of conduct in Virginia. (Id.)  She has never maintained any of the contacts with Virginia specified in Virginia’s long-arm statute. (Id. ¶ 19.)

Based on those facts, and the following arguments, Ms. Colon respectfully requests that this Court grant her Motion to Dismiss for Lack of Personal Jurisdiction.

ARGUMENT

To establish personal jurisdiction over Ms. Colon, Plaintiff must show (1) that the language of Virginia’s long-arm statute reaches Ms. Colon’s alleged conduct; and (2) that the statutory assertion of jurisdiction as to Ms. Colon comports with the Fourteenth Amendment’s Due Process Clause.  Ellicott Mach. Corp. v. John Holland Party, Ltd, 995 F.2d 474, 477 (4th Cir. 1993); Verosol B.I/. v. Hunter Douglas, Inc., 806 F. Supp. 582, 588-89 (E.D. Va. 1992).  Plaintiff always bears the burden of demonstrating personal jurisdiction once its existence is questioned by the defendant.  Haynes v. James H. Carr, Inc, 427 F.2d 700, 704 (4th Cir. 1970) (applying Virginia law); Mason v. Shirk & Shirk, 32 Va. Cir. 193, 194 (City of Winchester 1993).

I. Virginia’s Long-Arm Statute Does Not Reach Ms. Colon.

Plaintiff asserts that this Court has personal jurisdiction over Ms. Colon pursuant to Virginia’s long-arm statute. Specifically, Plaintiff references Sections 8.01-328.l(A)(3) and (4) of the Virginia Code. (See Compl. ¶ 10.)  Those sections read as follows:

A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action arising from the person’s:
(3) Causing tortious injury by an act or omission in this Commonwealth;
(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.

A.  Subsection 3

Subsection (3) of Virginia’s long-arm statute requires Plaintiff to prove that Ms. Colon committed an act or omission in Virginia.  But Ms. Colon has never been to Virginia (Colon Aff. ¶ 18), and Plaintiff does not allege otherwise.  To the contrary, all of Plaintiffs allegations pertain to conduct that Ms. Colon engaged in while in New Jersey.  Plaintiff alleges that Ms. Colon has engaged in two distinct types of conduct.  First, Plaintiff alleges that Ms. Colon attended Planning Board meetings in Ridgewood, New Jersey, and spoke to people at those meetings.  Such conduct necessarily took place entirely in New Jersey.  Second, Plaintiff alleges that Ms. Colon has posted statements and videos about Plaintiff on the Internet.  All of the statements and videos that Ms. Colon has uploaded to the Internet with respect to the WMSCOG were uploaded in New Jersey.  (Colon Aff. ¶ 15.)  Therefore, there can be no long-arm jurisdiction under Subsection (3).

B.  Subsection (4)

Subsection (4) of the long-arm statute requires that Plaintiff prove two factors.  First, Plaintiff must prove that Ms. Colon regularly conducts or solicits business in Virginia, engages in any persistent course of conduct in Virginia, or derives substantial revenue from goods used or consumed or from services rendered in Virginia. See Va. Code 8.01-328.1(A)(4).  Second, Plaintiff must prove that Ms. Colon caused a tortious injury in Virginia.  Because Plaintiff cannot prove the first factor, the Court need not address the second factor.

Plaintiff cannot prove the first factor because Ms. Colon has absolutely no connection to Virginia.  She has never engaged in a persistent course of conduct in Virginia.  Courts have held that a persistent course of conduct requires “ongoing interactions With the forum state.” See, e. g. , Willis v. Semmes, Bowen & Semmes, 441 F. Supp. 1235, 1242 (E.D. Va. 1977).  There must be, for example, proof that a defendant regularly solicits, advertises to, sends mailings to, or takes orders from customers other than Plaintiff.  See Reiner v. Lee, No. 125629, 1994 WL 1031245, at * 4 (Va. Cir. Ct. June 30, 1994).  Ms. Colon does not engage in any conduct in Virginia, much less the conduct required by Subsection (4). (Colon Aff. ¶ 18.)  She has never been to Virginia.  (Id)  She has never lived in nor been employed in Virginia. (Id)  She derives no revenue from Virginia. (Id)  She has never solicited or transacted any business in Virginia, contracted to supply services or things in Virginia, owned real or personal property in Virginia, or maintained any of the other contacts specified in Virginia’s long-arm statute. (Id.)  Therefore, this Court cannot assert personal jurisdiction against Ms. Colon pursuant to subsection (4).

II. Subjecting Ms. Colon to Personal Jurisdiction Would Violate Due Process.

To assert personal jurisdiction over Ms. Colon would violate the Due Process Clause of the Fourteenth Amendment of the United States Constitution. The Due Process Clause requires “that a nonresident have certain minimum contacts” with the forum state “so that the maintenance of the action does not offend ‘traditional notions of fair play and substantial justice.” Danville Plywood Corp. v. Plain & Fancy Kitchens, Inc., 218 Va. 533, 555 (1977) (quoting Int Shoe Co. v. Wash, 326 U.S. 310, 316 (1945)).  A defendant’s minimum contacts with the forum state must be “such that [s]he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).  The Due Process Clause may be satisfied if the non-resident defendant is subject to either general or specific jurisdiction. ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 711 (4th Cir. 2002).

A. There Is No General Jurisdiction Over Ms. Colon

General jurisdiction exists where the defendant’s activities are “continuous and systematic” in the state, and where the defendant has “fairly extensive” minimum contacts with the state.  Nichols V. G. D. Searle & C0., 991 F.2d 1195, 1199 (4th Cir. 1993).  Because Ms. Colon has no contacts with Virginia at all (see Colon Aff. ¶ 18), there is no general jurisdiction.

B. There Is No Specific Jurisdiction Over Ms. Colon

To establish specific personal jurisdiction, Plaintiff must show that the defendant “purposefully directed [her] activities at residents of the forum” and that Plaintiffs causes of action “arise out of or relate to those activities.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (internal quotation marks omitted).  Plaintiffs allegations stem from two distinct types of conduct.  The first type of conduct pertains to Ms. Colon’s attendance at Planning Board hearings in New Jersey. Such conduct was directed at New Jersey.  The second type of conduct pertains to Internet-based activities which also took place in New Jersey, and which were directed into cyberspace.  Postings in cyberspace do not constitute activity directed at Virginia sufficient to form a basis for specific jurisdiction.

In the absence of significant Virginia state law addressing the issue of Internet-based specific jurisdiction, the Fourth Circuit’s jurisprudence is informative and persuasive.1 In ALS Scan, the Fourth Circuit “adopt[ed] and adapt[ed]” the model for Internet-based specific jurisdiction developed in Zippo Manufacturing Company v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997). See ALS Scan, 293 F.3d at 714.  In Zippo, a federal district judge in Pennsylvania articulated the “sliding scale” model for analyzing personal jurisdiction in the context of Internet conduct.  See Zippo, 952 F. Supp. at 1124.  The Zippo Court distinguished between websites that are “interactive” and those that are “passive.” Id.  An interactive website is one where the website operator “enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet.” Id  Such a website operator can be haled into the courts of that foreign jurisdiction. Id.  A passive website, on the other hand, is one that merely makes information available. Id.  Such a website does not give rise to specific personal jurisdiction in a foreign court. Id.  There is also a middle ground consisting of semi-interactive websites, which enable users to exchange information with the host computer, but which have not facilitated a large volume of transactions between the defendant and residents of the forum state.  Zippo, 952 F. Supp. at 1124; Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 399 (4th Cir. 2003).  “In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs.”  Zippo, 952 F. Supp. at 1124.

Applying Zippo, the Fourth Circuit held in ALS Scan that, as a general matter, “[a] State may, consistent with due process, exercise judicial power over a person outside of the State when that person (1) directs electronic activity into the State, (2) with the manifested intent of


1 The Fourth Circuit provides a detailed summary of its jurisprudence regarding Internet-based specific jurisdiction in Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 398-400 (4th Cir. 2003).

engaging in business or other interactions within 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, 293 F. 3d at 714.  “Under this standard, a person who simply places information on the Internet does not subject [her]self to jurisdiction in each State into which the electronic signal is transmitted and received.” Id.  Otherwise, a “person placing information on the Internet would be subject to personal jurisdiction in every State.” Id. at 712.  Such a rule would subvert traditional principles of due process. Id.  Accordingly, the Fourth Circuit held in ALS Scan that Maryland could not exercise personal jurisdiction in a copyright case over an Internet service provider whose activities in the state were merely “passive.”

Shortly after deciding ALS Scan, the Fourth Circuit applied the Zippo sliding scale in a defamation case.  In Young v. New Haven Advocate, 315 F.3d 256 (4th Cir. 2002), the court addressed whether a federal court in Virginia had personal jurisdiction over two Connecticut newspapers which were sued for libel by the warden of a Virginia prison.  The warden’s allegations stemmed from the newspapers’ coverage of conditions in the prison, which housed numerous Connecticut prisoners.  The warden noted that the newspapers posted the allegedly defamatory articles on websites that were accessible to Virginia residents.  The warden claimed that the Virginia court could exercise personal jurisdiction over the defendants because the primary effects of the allegedly defamatory statements on the warden’s reputation were felt in Virginia.  Nevertheless, the Fourth Circuit held that there was no personal jurisdiction because the newspapers did not post materials on their websites with the “manifest intent” of targeting readers in Virginia. Id. at 264.  In rejecting the warden’s argument, the Young Court reasoned that “the [newspapers’] websites are not designed to attract or serve a Virginia audience.” Id. at 263; see also Roche v. Worldwide Media, Inc., 90 F. Supp. 2d 714, 718 (E.D. Va. 2000) (holding that placement of website on Internet with knowledge of possibility that site might be accessed in Virginia, with nothing more, is insufficient to satisfy due process jurisdictional standard); Rannoch, Inc. v. Rannoch Corp, 52 F. Supp. 2d 681, 685 (E.D. Va. 1999) (same).

Applying these cases to the instant case, it is clear that this Court cannot assert specific personal jurisdiction over Ms. Colon.  Plaintiff has not alleged that the Internet sites used by Ms. Colon are in any way interactive.  To the contrary, Plaintiff alleges only that Ms. Colon made a passive use of the Internet, by posting statements and videos.  In fact, Ms. Colon never sold any goods or services, entered into contracts, raised any revenue, or collected any donations through any of the websites that she utilized when posting material about Plaintiff (Colon Aff. ¶ 16), and Plaintiff does not allege otherwise.  Moreover, the websites Ms. Colon used when discussing the WMSCOG were designed for users like her to post and share information, not to buy and sell goods or services, or to exchange money. (Id. ¶ 17.)

One of the websites to which Ms. Colon posted material about the WMSCOG is the website of co-defendant Tyler Newton, www.examiningthewmscog.com.  A screenshot of that site’s home page is attached to Ms. Colon’s Affidavit as Exhibit A.  That screenshot shows that the site passively provides information about the WMSCOG.  The information is presented in the form of articles, organized by categories such as “Who Is Ahnsahnghong,” “Evidence,” “Former Member Testimony,” and “In the News,” among others. The website does not sell any items, nor does it ask its users to enter into contracts or financial transactions of any kind. (Id. ¶ 12.)

The same is true of the other websites utilized by Ms. Colon.  Two of those sites are Facebook and YouTube.  While those sites could be used for interactive purposes—for instance, by a business selling merchandise—Ms. Colon has never sold any goods or services, entered into any contracts, raised any revenue, or collected any donations on those sites. (Id. ¶ 16.)  Plaintiff has not alleged otherwise.  Plaintiff also claims that Ms. Colon posted allegedly defamatory material on business review websites, and Internet discussion forums.  Those are all passive websites, designed for the posting and sharing of information, not for the buying and selling of goods or services, or the exchange of money. (Id. ¶ 17.)

In summary, there are no allegations, as required by ALS Scan, that Ms. Colon directed her electronic activity into Virginia, or that she manifested the intent of engaging in business or other interactions within Virginia.  Ms. Colon’s Internet postings were not designed to attract or serve a Virginia audience.  In fact, Ms. Colon has had less contact with Virginia than defendants in other cases in which no Internet-based personal jurisdiction was found.  For instance, the Fourth Circuit found there was no personal jurisdiction in Carefirst, even though the defendant accepted donations from its website, submitted emails to residents in the forum state who made contributions, mailed promotional materials to residents in the forum state who made contributions, and established a 24-hour toll-free telephone number and hotline over which forum state residents could make donations, obtain counseling, or receive pregnancy test kits.  No similar facts are present in the instant case.  Similarly, the Eastern District of Virginia refused to exercise personal jurisdiction against a New York resident who raised revenue from Virginia through his website, because the revenue raised (about $700 a year) was non-substantial.  Rosario v. Wands, No. 1:09-cv-663, 2009 U.S. Dist. LEXIS 84992, at n.l (E.D. Va. Sept. 17, 2009).  In the instant case, revenue generation is less than non-substantial.  It is non-existent. (Colon Aff. ¶ 18.) Therefore, there can be no specific personal jurisdiction over Ms. Colon.

Conclusion

For the foregoing reasons, this Court should grant Ms. Colon’s Motion to Dismiss for Lack of Personal Jurisdiction.

MICHELE COLON
By Counsel

 

[Signature]

Lee E. Berlik (VSB# 39609)
BerlikLaw, LLC
11710 Plaza America Drive
Suite 120
Reston, Virginia  20190
Tel: (703) 722-0588
Fax: (888) 772-0161

Exhibit 1

VIRGINIA :

IN THE CIRCUIT COURT OF FAIRFAX COUNTY

_______________________________________________________
WORLD MISSION SOCIETY
CHURCH OF GOD

Plaintiff,

v.

MICHELE COLON AND TYLER J.
NEWTON

Defendants

_______________________________________________________

 

DEFENDANT MICHELE COLON’S AFFIDAVIT
IN SUPPORT OF HER MOTION TO DISMISS FOR
LACK OF PERSONAL JURISDICTION

Michele Colon, on her oath, deposes and says:

1.  I am one of the Defendants named in the above-captioned case. I am also at former member of the Plaintiff church. As such, I am familiar with the facts described herein.  I make this Affidavit in support of my Motion to Dismiss for Lack of Personal Jurisdiction and for Lack of Subject Matter Jurisdiction.

2.  I am a resident of New Jersey.

3.  The Plaintiff is the New Jersey branch of a Korean-based doomsday church, called the “World Mission Society Church of God” (“WMSCOG”).

4.  My husband and I were recruited to become members of the Plaintiff in 2009.

5.  I remained a member for about a year and a half.

6.  During that time, I became aware of many of the bizarre and abusive practices of the WMSCOG.

7.  As a result, I became disillusioned, and I began openly questioning the church.

8.  I was eventually “disfellowshipped,” and told that I could not return to the church.

9.  The Plaintiff further retaliated against me by ordering my husband to terminate his
relationship with me.

10.  My experience inspired me to start a public awareness campaign in the State of New
Jersey to warn people about the WMSCOG.

11.  As part of that campaign, I attended a series of Planning Board meetings in Ridgewood, New Jersey, which were held in order to determine whether to grant the Plaintiff a variance to allow it to make building improvements.

12.  Also as part of that campaign, I posted statements and videos about the WMSCOG to various websites and blogs on the Internet, including the website of co-Defendant Tyler Newton, www.examiningthewmscog.com.  Mr. Newton’s website passively provides information about the WMSCOG.  The information is presented in the form of articles.  The website does not sell any items, nor does it ask its users to enter into contracts or financial transactions of any kind.

13.  Attached hereto as Exhibit A is a true and accurate screenshot of the home page of the
website www.examiningthewmscog.com.

14.  I also posted statements and videos about the WMSCOG to Facebook, YouTube, business review websites, and Internet discussion forums.

15.  All of the statements and videos that I have uploaded to the Internet with respect to the WMSCOG have been uploaded in New Jersey.

16.  I have never sold any goods or services, entered into any contracts, raised any revenue, or collected any donations through any of the websites that I utilized when posting material about the WMSCOG to the Internet.

17.  The websites I used when discussing the WMSCOG were designed for users like me to post and share information, not to buy and sell goods or services, or to exchange money.

18.  I have no connection whatsoever to the Commonwealth of Virginia. I have never been to Virginia.  I have never lived in nor been employed in Virginia.  I have never transacted or solicited any business in Virginia.  I have never contracted to supply services or things in Virginia.  I have never owned real or personal property in Virginia.  I have never derived any revenue of any kind from goods used or consumed in Virginia, or from services rendered in Virginia.  I have never engaged in a persistent course of conduct in Virginia.

19.  I have reviewed Virginia’s long-arm statute, 8.01-328.1 of the Virginia Code.  I have never engaged in any of the contacts with Virginia specified in that statute.

20.  Based on those facts, and for the legal reasons described in the accompanying Memorandum of Points and Authorities, I respectfully request that this Court grant my Motion to Dismiss for Lack of Personal Jurisdiction.

 

Dated:  February 9, 2012

[Signature]
Michele Colon

 

Sworn and Subscribed to before me
this [9th] day of Februrary, 2012

[Notary]
A Notary Public of New Jersey
My Commission Expires April 10,2016,

[Signature]
Notary Public

 

Exhibit A

Screenshot of www.examiningthewmscog.com

 




This document is part of a larger court case filed against this site and a former member by the World Mission Society Church of God (WMSCOG) in Dec 2011. For more documents from the court case see the timeline below:

WMSCOG vs Colon, Newton - VA Case #2011-17163
Timeline
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