The opinion of the court was delivered by: Urbina, District Judge.
Certifying for Interlocutory Appeal the Court's Ruling that
Personal Jurisdiction Exists and Staying Proceedings
This matter comes before the court on the motion of defendant
group BellSouth for certification for interlocutory appeal of the
court's September 28, 1998 ruling that personal jurisdiction
exists in the District of Columbia. Because the court's ruling
involves a controlling question of law, because a substantial
ground for difference of opinion concerning the ruling exists,
and because an immediate appeal would materially advance the
disposition of this litigation, the court certifies its September
28, 1998 Order for interlocutory appeal. Further, for reasons of
judicial economy, the court orders a stay of proceedings in this
case, except for settlement discussions with the mediator, which
the court expects will continue.
II. PERSONAL JURISDICTION
By Order dated September 28, 1998, the court ruled that
personal jurisdiction exists in this matter as to defendant
groups BellSouth, SBC and U.S. West under section 13-423(a)(4) of
the District of Columbia long-arm statute. In reaching this
ruling, the court concluded that the plaintiff alleged sufficient
facts to make out a prima facie showing that (1) the plaintiff
suffered a tortious injury in the District of Columbia, (2) the
injury was caused by the defendants' conduct outside of the
District of Columbia, and (3) the defendants engaged in a
persistent course of conduct in the District of Columbia. See
D.C.Code § 13-423(a)(4); Blumenthal v. Drudge, 992 F. Supp. 44,
53 (D.D.C. 1998). Additionally, the court concluded that minimum
contacts existed with the non-resident defendants consistent with
notions of due process. See D.C.Code § 13-423(a)(4).
More specifically, the court found that the defendants
maintained an interactive website and that through the website
the defendants had Internet contacts with the District of
Columbia. (The BellSouth defendants did not contest this finding
on motion for reconsideration. (See Mem. in Supp. of BellSouth
Defs.' Mot. at 5.)) The court noted the commercial quality of the
defendants' Internet Yellow Pages website in that advertising
revenue in the Internet Yellow Pages industry depended on the
number of users accessing a particular Yellow Pages website. The
court further noted that by allegedly channeling District of
Columbia users to their map the RBOC defendants increased user
traffic on their websites, thereby securing advertising revenue.
From this, the court concluded that the RBOC defendants derived
profit from their website-related activity in the District of
The fact that the defendants derived profit in the District of
Columbia, standing alone, did not establish personal
jurisdiction. Rather, under the District of Columbia long-arm
statute persistent contact "plus factor" analysis, the plaintiff
must show some reasonable connection between the defendant and
the forum, other than the injury-causing act. See Heroes, Inc.
v. Heroes Found., 958 F. Supp. 1, 5 (D.D.C. 1996); accord Crane
v. Carr, 814 F.2d 758, 762 (D.C.Cir. 1987). This "plus factor"
requirement serves to filter out cases in which the impact in the
forum is an isolated event and the defendant otherwise has no, or
scant, affiliations with the forum. See Crane, 814 F.2d at 763.
The court concluded that the quality and nature of the RBOC
defendants' website met the plus factor requirement.
Few cases exist applying this plus factor analysis to
situations involving the Internet. In the cases that have
struggled with this issue, the courts have placed the Internet
contacts on a spectrum. At one end of this spectrum the courts
have placed passive websites, those comprised of the mere posting
of information, and at the other end courts have placed
situations where the defendant clearly does business over the
Internet, such as entering into contracts involving the
transmission of computer files. See Blumenthal, 992 F. Supp. at
55; Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119,
1124 (W.D.Penn. 1997). The former situations do not meet the
persistent course of conduct standard, whereas the latter
situations do. See Zippo, 952 F. Supp. at 1124. In the middle of
the persistent course of conduct spectrum exists situations
involving "interactive" websites — websites where users exchange
information with the host computer. See Zippo, 952 F. Supp. at
1123. In those cases, the courts have determined the existence of
personal jurisdiction by examining the level of interactivity and
the commercial nature of the exchange of information that occurs
on the website. See Zippo, 952 F. Supp. at 1123.
III. INTERLOCUTORY APPEAL
A district court may certify an order for interlocutory appeal
when three conditions are met: (1) the order involves a
controlling question of law, (2) a substantial ground for
difference of opinion concerning the ruling exists, and (3) an
immediate appeal would materially advance the disposition of the
litigation. 28 U.S.C. § 1292(b). In deciding whether to grant
interlocutory appeal, the District of Columbia Circuit follows
the collateral order doctrine. See Foremost-McKesson, Inc. v.
Islamic Republic of Iran, 905 F.2d 438, 443 (D.C.Cir. 1990);
Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan,
115 F.3d 1020, 1026 (D.C.Cir. 1997).
Under the collateral order doctrine, a district court's order
may be appealed only when it (1) conclusively determines the
disputed question, (2) resolves an important issue completely
separate from the merits of the action, and (3) would be
effectively unreviewable on appeal from a final judgment. United
States v. Rostenkowski, 59 F.3d 1291, 1296 (D.C.Cir. 1995),
citing Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98
S.Ct. 2454, 57 L.Ed.2d 351 (1978). In the instant case a
determination on the issue of whether personal jurisdiction
exists when no contacts exist with the forum jurisdiction other
than a commercial, interactive Internet would conclusively
determine whether GTE may bring suit in this court. Additionally,
the case involves an antitrust allegation, so the personal
jurisdiction issue does not involve the merits of the action.
Further, since the complaint does not detail monetary damages, it
appears the plaintiff primarily seeks injunctive relief. All
indications thus far indicate that to reach final judgment the
parties will ...