Motion to Dismiss For Lack of Personal Jurisdiction in Virginia

Understanding the Purpose and Significance of Personal Jurisdiction

“‘Jurisdiction’ means the power of a court to hear and determine a cause, which power is conferred by a constitution or by statute, or both.” (See Brown v. Brown (2018) 69 Va. App. 462, 468.)

“According to the long-arm statute, a Virginia 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 . . . [t]ransacting any business in this Commonwealth." (See Nan Ya Plastics Corp. U.S.A. v. DeSantis (1989) 237 Va. 255, 259-60; Code Sec. 8.01-328.1(A)(1).)

“A ‘person’ as used in the foregoing statute, includes a corporation whether or not a citizen or domiciliary of this State and whether or not organized under the laws of this State." (See id.)

“The function of our long-arm statute is to assert jurisdiction over nonresidents who engage in some purposeful activity in Virginia, to the extent permissible under the Due Process Clause of the Constitution of the United States.” (See Nan Ya Plastics Corp. U.S.A. v. DeSantis (1989) 237 Va. 255, 259-60; Danville Plywood Corp. v. Plain and Fancy Kitchens, Inc. (1977) 218 Va. 533, 534, 238 S.E.2d 800, 802.)

“The Due Process Clause, however, protects a person's liberty interest in not being subject to the binding judgments of a forum unless he has certain ‘minimum contacts’ within the territory of the forum so that maintenance of the action does not offend traditional notions of fair play and substantial justice." (See Nan Ya Plastics Corp. U.S.A. v. DeSantis (1989) 237 Va. 255, 259-60; International Shoe Co. v. Washington (1945) 326 U.S. 310, 316; Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 471-72.)

“And, an examination of the history of litigation involving the limits placed by the Due Process Clause on the power of state courts to enter binding judgments against persons not served within their boundaries shows a clearly discernible trend toward expanding the permissible scope of state jurisdiction over foreign corporations and other nonresidents." (See Nan Ya Plastics Corp. U.S.A. v. DeSantis (1989) 237 Va. 255, 259-60; McGee v. International Life Ins. Co. (1957) 355 U.S. 220, 222.)

Procedural Steps Involved in Filing a Motion to Dismiss for Lack of Personal Jurisdiction

Section 8.01-277.1 of the Code of Virginia governs objections to personal jurisdiction or defective process, and what constitutes waiver.

The rule states that “except as provided in § 8.01-277, a person waives any objection to personal jurisdiction or defective process if he engages in conduct related to adjudicating the merits of the case, including, but not limited to:

1. Filing a demurrer, plea in bar, answer, counterclaim, cross-claim, or third-party claim;
2. Conducting discovery, except as provided in subsection B;
3. Seeking a ruling on the merits of the case; or
4. Actively participating in proceedings related to determining the merits of the case.”

(See Va. Code § 8.01-277.1(A).)

Furthermore, “a person does not waive any objection to personal jurisdiction or defective process if he engages in conduct unrelated to adjudicating the merits of the case, including, but not limited to:

1. Requesting or agreeing to an extension of time;
2. Agreeing to a scheduling order;
3. Conducting discovery authorized by the court related to adjudicating the objection;
4. Observing or attending proceedings in the case;
5. Filing a motion to transfer venue pursuant to § 8.01-264 when such motion is filed contemporaneously with the objection; or
6. Removing the case to federal court.”

(See Va. Code § 8.01-277.1(B).)

Standard of Review in Deciding a Motion to Dismiss for Lack of Personal Jurisdiction

“Before the merits of this case can be considered, [this Court] must determine whether it has jurisdiction." (See Minor v. Commonwealth (2016) 66 Va. App. 728, 738, 791 S.E.2d 757; Guan v. Ran (2019) 70 Va. App. 153, 155-56.)

"Whether a court has acquired personal jurisdiction over a defendant presents a mixed question of law and fact." (See Friedman v. Smith, No. 0117-22-1, at *5-6 (Va. Ct. App. Jan. 24, 2023); Koons v. Crane (2021) 72 Va.App. 720, 732.)

“[A] trial court’s jurisdiction is a question of law that is reviewed de novo on appeal." (See Brown v. Brown (2018) 69 Va. App. 462, 468.)

"We defer to the circuit court's factual findings and view the facts in the light most favorable to . . . the prevailing party below, but we review de novo the court's application of the law to those facts." (See Friedman v. Smith, No. 0117-22-1, at *5-6 (Va. Ct. App. Jan. 24, 2023); Koons v. Crane (2021) 72 Va.App. 720, 732.)

“In reviewing a holding of contempt, we may reverse the ruling of the [trial] court only if we find that it abused its discretion." (See id.)

Legal Precedents and Case Law on a Motion to Dismiss for Lack of Personal Jurisdiction

It is well settled that “the existence of personal jurisdiction…depends upon the presence of reasonable notice to the defendant that an action has been brought and a sufficient connection between the defendant and the forum State to make it fair to require defense of the action in the forum.” (See Price v. Price (1993) 17 Va. App. 105, 112-13.)

It is also well settled that “in a case involving application of the Virginia long-arm statute, that when the district court rules upon a motion to dismiss for lack of personal jurisdiction on the basis only of motion papers, supporting legal memoranda and the relevant allegations of a complaint, the 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 to determine if the plaintiff has made a prima facie showing of a sufficient jurisdictional basis to survive the jurisdictional challenge.” (See New Wellington Fin. Corp. v. Flagship Resort Dev. Corp. (2005) 416 F.3d 290, 294; Cabaniss v. Cabaniss (2005) 46 Va. App. 595, 601 n.3.)