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Court Has Jurisdiction Under ‘Conspiracy Theory’

In a Virginia drug sales representative’s suit alleging defamation, conspiracy and breach of contract by supervisors at defendant pharmaceutical company, a Fairfax Circuit Court can exercise personal jurisdiction over the company’s regional sales manager in Pennsylvania under the Virginia long-arm statute, and jurisdiction over an HR manager and a training manager in Illinois, under a conspiracy theory of jurisdiction.

Plaintiff Noah Nathan, a Virginia resident, began working as a sales rep for defendant Takeda Pharmaceuticals America Inc. in 2002. Defendant Cassandra Smith is a regional human resources manager based in Illinois. Defendant Louis Savant is a regional sales manager based out of Pennsylvania. Defendant John Flood is a training manager and resident of Illinois. These three individual defendants challenge this court’s authority to exercise personal jurisdiction over them. The court concludes it has personal jurisdiction over all three.

Savant’s position as regional sales manager included responsibility over the district manager in Virginia, along with multiple sales territories in Virginia. Savant routinely directed the district manager through emails and phone calls on actions taken toward plaintiff. Savant communicated directly with plaintiff in Virginia on several occasions, and visited Virginia to conduct a ride-along with plaintiff on sales calls. Savant detailed his observations in a report that he sent to plaintiff in Virginia, and followed up with phone calls to plaintiff.

We hold that Savant was transacting business in Virginia within the meaning of Va. Code § 8.01-328.1(A)(1). Further, the court finds that exercising jurisdiction over Savant based on these contacts does not offend the Due Process clause.

The court is satisfied that plaintiff’s allegations of defamation, tortious interference and conspiracy towards Savant arise out of his business contacts with the state. Savant argues that when a nonresident officer of a defendant company commits a tort outside the forum state, his contacts with the forum state through his employer are not applicable to the jurisdictional analysis. However, it appears that a defendant who commits a tort may not use his employer as a protective shield against the reach of the law.

Plaintiff’s assertion of jurisdiction over Savant does not rest solely on his status as an officer of Takeda. The facts indicate Savant had significant contacts with Virginia during the commission of the alleged torts. The court is satisfied the nexus between Savant and the commonwealth is sufficient to support personal jurisdiction over him.

Defendants Flood and Smith are both nonresidents who are not alleged to have been present in Virginia at any time relevant to this suit. Each has similar contacts with Virginia. The court will jointly discuss Flood and Smith.

Plaintiff has failed to allege sufficient facts to establish that either Flood or Smith transacted business in Virginia. Flood sent a few emails to the district manager who lived in Virginia. Smith emailed both the district manager and plaintiff, and on a number of occasions called plaintiff in Virginia. However, the law is well settled that mere emails and telephone calls directed at Virginia do not amount to transacting business in Virginia. There is no basis for jurisdiction over Flood or Smith under Code §§ 8.01-328.1(A)(1) and (A)(2).

Since plaintiff has alleged tortious injury in Virginia, the question becomes whether a person outside Virginia who sends a defamatory email or telephone call to a person living in Virginia is an act within the commonwealth as required under Code § 8.01-328.1(A).

Although the Virginia Supreme Court has not addressed this specific issue, courts interpreting this subsection have held that when a nonresident writes a defamatory letter outside the forum state and mails it into the forum, he does not commit a “tortious act” within the forum as required. Similarly, defamatory remarks made by a nonresident over the telephone to a person receiving the call in Virginia are generated outside the forum and not an act within the state. The court finds there is insufficient factual basis to establish personal jurisdiction over Flood or Smith pursuant to Code § 8.01-328.1(A)(3).

Nor is there personal jurisdiction over these defendants pursuant to Code § 8.01-328.1(A)(4).

There is, however, another basis for jurisdiction. Courts have recently recognized that personal jurisdiction may, in some circumstances, be based upon the acts or contacts of a co-conspirator. Although the Virginia Supreme Court has not addressed this specific issue, several other courts interpreting Virginia law have recognized the validity of this basis for jurisdiction.

The underlying torts of plaintiff’s conspiracy claim are defamation and tortious interference. The court is satisfied that alleged conduct by the co-conspirators in Virginia is sufficient to establish personal jurisdiction over Flood and Smith. Plaintiff alleges defendants created false reports and performance reviews regarding plaintiff, refusing to recertify him on drugs he had previously been certified for, and failed to investigate substantial grievances.

Motion to dismiss for lack of jurisdiction is overruled.

Nathan v. Takeda Pharmaceuticals America Inc. (Thacher) No. CL 2010-2064, Aug. 2, 2011; Fairfax Cir.Ct.; Elaine Bredehoft for plaintiff; Susan Podolsky for defendants. VLW 011-8-156, 20 pp.

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