XMission, L.C. v. Fluent LLC, 955 F.3d 833 (10th Cir. April 9, 2020)

The Tenth Circuit affirmed the district court’s dismissal of claims brought by a Utah internet service provider against a New York-based digital marketing company for lack of personal jurisdiction. The claims were based on tens of thousands of spam emails sent to the ISP’s Utah-based customers. The marketing company submitted an affidavit from its general counsel stating that it did not send the emails; that it had a contract with third-parties who sent the emails; that it had no involvement with or control over the origination, approval, or delivery of the emails; and that it had no other activity connecting it to Utah. The ISP did not present any specific evidence contradicting these statements, and did not conduct any jurisdictional discovery. Based upon this record, the Tenth Circuit concluded that there were insufficient facts to establish personal jurisdiction over the marketing company in Utah under either the “harmful effects” or the “market exploitation” tests the ISP had argued.