Beyond v. Realtime
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IN THE COURT OF APPEALS OF MARYLAND No. 119 September Term 2004 __________________________________ BEYOND SYSTEMS, INC. V. REALTIME GAMING HOLDING COMPANY, LLC, ET AL. __________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Battaglia, J. Bell, C.J., Raker and Harrell, JJ., dissent Filed: June 22, 2005 This case arises o ut of a civil su it premised upon Section 14-3002 of the Commercial Law Article of the Marylan d Code , which pro hibits conspiring to disseminate unauthorized, false, or misleading informatio n via electron ic mail ( e-mail ). Because we determine that Petitioner, Beyond Systems, Inc. ( BSI ), did not establish a prima fac ie case that Respondents, KDMS International, LLC ( KDMS ) and Realtime Gaming Holding Com pany, LLC ( Realtime Gaming ), possess the requisite minimum contacts amounting to purposef ully availing themselves of the benefits of conducting business in Maryland, we agree with the Circuit Court s ruling that the court lacked personal jurisdiction over Respondents. Moreover, we conclude that the Circuit Court did not abuse its discretion by denying Petitioner discovery on the personal jurisdiction issue and striking the amended complain t. Background KDMS, a business that develops interactive1 proprietary software 2 used in the online gaming industry, is a limited lia bility company ( L LC ) fo rmed un der the law s of the State of Delaware, with its principal place of business in Atlanta, Georgia. Realtime Gaming, the 1 Interactive is defined as a two-way electronic communication system . . . that involves a user s orders . . . or responses . Merriam -Webster Dictionary, inte ractive (10 th ed. 200 2). 2 Proprietary software is [s]oftw are that cannot b e used, redistributed, or modified without permission. Proprietary software is usually sold for profit, consists only of machinereadable code, a nd carr ies a limit ed licen se that re stricts co pying, m odifica tion, and redistribution. A user may usually make a backup copy for pers onal use; bu t if the software is sold or given awa y, any back up cop ies mus t be pas sed on to the ne w use r or destr oyed. B LACK S L AW D ICTIONARY, proprietary software (8th ed. 200 4). holding comp any for K DM S, is a limited liability company formed under the laws of the State of Georgia with its principal place of business in Atlanta, Georgia. The two businesses share th e same Preside nt and C hief E xecutiv e Off icer, M ichael S taw. As part of Realtime Gaming s sales and marketing strategy for the KDMS software, Realtime Gaming entered into an exclusive licensing agreement with Montana Overs eas, a Panamanian corporation, by which Montana Overseas would be responsible for issuing licenses for the use of KDMS s software. Through the licensing process with Montana Overseas, window scasino.com , which is o wned b y ADLM Ltd. based in St. Helier, Jerse y, United Kingdom, obtained the right to use the KDMS software in its online casino. Windowscasino.com is an interactive online casino that promotes only the games designed by KDMS. In March of 2003, Travis Thom, a resident of Albuquerque, New Mexico, found an advertisement on the Internet for www.windowscasino.com. The advertisement explained how individuals c ould beco me aff iliates of w indowsc asino.com for a sma ll investment and make money by referring players to windowscasino.com s website. During the first two weeks of March, Thom contacted windowscasino.com by telephone and spoke to a sales associate for windowscasino.com about becoming an affiliate. The employee described the relationship with windowscasino.com and informed Thom that he would have to pu rchase a Cas ino-To -Go P rivate L abel Pa ckage for $9 99.00 p lus app licable ta xes. Around March 14, 2003 , Thom v isited the www.windowscasino.com website and 2 completed an affiliate application to make the purchase, which was confirmed the next day by a windowscasino.com employee through e-mail. Upon receipt of the Casino-To-Go Private Label Package, Thom created a name for his affiliate webpage, www.goldenrhinocasino.com, which h e registered in his own name with Yahoo ! Domains, 3 a service that registers names of w ebsites. Window scasino.com then de signed Thom s webpage, with his input regarding the aesthetics, but not the content or function. Thom s webpa ge directed players to the window scasino.com we bsite where gam blers downloaded the software designed by KDMS, which was retrieved from an IP address (Internet Protocol address) registered to KDMS. In return for directing individuals to windowscasino.com, Thom would be compensated with 45% of referred players losses and up to a $40.00 boun ty per pla yer who depos ited fun ds to ga mble a t windo wscas ino.com . On April 14, 2003, Thom contracted with a bulk e-mail solicitation service, Omega One Media , Inc., to send 2.5 million unsolicited e-mail advertisements.4 He paid windowscasino.com an addition al fee to w rite and desig n the e-mails. On April 26, 2003, sixteen e-mail addresses used by employees of BSI each received fifteen such unsolicited commercial e-mails over a twenty-four hour period, for a total of 240 e-mails, advertising 3 Dom ain names serve as a primary identifier of an Internet user. Zippo Manufacturing Co. v. Zippo Dot Com Inc., 952 F.Supp. 1119, 1121 n.1 (W.D.Pa. 1997 ), citing Panavision Intern., L.P. v. Toeppen, 938 F.Supp. 61 6 (C.D. Cal. 1996 ). Businesses using the Internet commonly use their business names as part of the domain name (e.g. IBM.com). Id. The designation .com identifies the user as a commercial entity. Id. 4 Omega One M edia, Inc. is not related to any of the entities named in the present action and is n ot nam ed in this lawsu it. 3 the Go lden R hino C asino. On December 31, 2003, BSI filed a complaint against Realtime Gaming, KDMS, and an unknow n co-defe ndant in the Circuit Court for Montgomery County and alleged violations of Maryland Code (2002, 2004 Cum. Supp.), Section 14-3002 of the Commercial Law Article.5 On Ap ril 16, 2004, R ealtime G aming an d KDM S filed a motion to dismiss the 5 Section 14-3002 of the Commercial Law A rticle provides: (a) Application. This section does not apply to an interactive computer service provider or a telecommunication utility to the extent that the interactive computer service provider or telecommunication utility merely handles, retransmits, or carries a transmissio n of com mercial elec tronic mail. (b) Prohibition. A person may not initiate the transmission, conspire with another person to initiate the transmission, or assist in the trans mission of comme rcial electronic mail that: (1) Is from a c omputer in the State or is s ent to an electronic mail address that the sender knows or should have kno wn is held by a resident of the State; and (2)(i) Uses a third party s Internet domain name or electronic m ail address without the permission of th e thir d party; (ii) Contains false or misleading information about the origin or the t r a nsmission path of th e commercial electronic mail; or (iii) Contains false or misleading information in the subject line that has the c apac ity, ten dency, or effect of deceiv ing the recip ient. (c) Presumption. A person in presumed to know that the intended recipient of commercial electronic mail is a resident of the State if the information is available on request from the registrant of the Internet domain name contained in the (contin ued...) 4 complaint for lack of personal jurisdiction, or in the alternative a motion for summary judgmen t. In support of their motion, Realtim e Gamin g and K DMS attached an affidavit from their mutua l President a nd CEO, Michael Staw ( Staw ) who asserted that Realtime Gaming functions solely as a holding company for KDMS and does not engage in any other business activities, and that KDMS has conducted no business in Maryland. BSI filed a memorandum in opposition to Realtime Gaming and KDMS s motion and attached a supporting affidavit from BSI s owner, Paul Wagner ( Wagner ), in which he asserts various conclusory statements concerning the existence of an agency relationship between Realtime Gaming, KDMS, and windowscasino.com.6 On M ay 21, 2004, R ealtime G aming and KDMS filed a re ply mem orandu m, attem pting to refute B SI s alle gations . 5 (...continued) recipient s electronic mail address. (d) Blocking. An interactive com puter service provider: (1) May block the receipt or transmission through its interactive computer service of commercial electronic mail that it reasonably believes is or will be sent in apparent violation of this section; and (2) May not be held liable for an action under item (1) if this subsection that is volunta rily taken in good faith. Md. C ode (20 02, 200 4 Cum . Supp .), § 14-3 002 of the Co mmer cial Law Article. 6 In his affidavit, Wagner asserts that a significant relationship exists among Realtime Gaming and KD MS an d affiliates in which the principa l merchan ts (and alte r egos) . . . employ affiliates to spamvertise their products, and the two compan ies pay[] aff iliates to advertise KDMS s proprie tary software to potential players. Throug hout his aff idavit, Wagner characterizes, without support, windowscasino.com and Realtime Gaming and KDM S as inte rchang eable e ntities. 5 On May 26, 2004, the Circuit Court held a hearing and, at the hearing s close, stated its intention to dismiss the complaint for lack of personal jurisdiction. On June 2, 2004, the court issued a written order that dism issed BSI s complaint for lack of personal jurisdiction over Realtime Gaming and KDMS and did not specify that BSI would have leave to amend the complain t.7 On June 11, 2004, BSI filed a motion for reconsideration with an amended complaint attache d. In the amended complaint, BSI made specific allegations regarding the connection between Realtime Gaming, KDMS, windowscasino.com, and Thom through a server and IP ad dress registere d to KD MS. It also alleged a sig nificant relatio nship among Realtime Gaming, KDMS, and a network of sub-licensees, one of which assisted in the transmission of the e-mails at issue. Moreover, it named Travis Thom as an additional defen dant w ho cau sed the e-mails in ques tion to b e sent. 7 Because the oral statem ent of dism issal contem plated the w ritten orde r, which was later issued by the trial c ourt, it is the date of the issuance of the written order that constitutes the date of the final appea lable jud gmen t. See Walbert v. Walbert, 310 Md. 657, 661, 531 A.2d 291, 293 (1987). The Circuit Court faile d to dismiss John D oe from the suit. Because John Doe, although named as a defendant in the complaint, was never serv ed with process and was never identified as a real person, John Doe is not a party to the action and the Circuit Co urt s failure to d ismiss him f rom the su it does not prevent the judgment from being f inal. See, e.g., Jones v. Mid-Atlantic Funding Co., 362 Md. 661, 665 n.2, 766 A.2d 617, 618 n.2 (2001) (noting that defendant named in the complaint was not a party to the action because he was never served); Md. Bd. of Nursing v. Nechay, 347 Md. 396, 406, 701 A.2d 405, 410 (1997) (stating that the cou rt lacks jurisdictio n over a n amed de fendant if process has not be en served ); Claibourne v. Willis, 347 Md. 684, 686-87, 702 A.2d 293, 297 (1997) (same). Subsequently, BSI filed a motion in Circuit Court to dismiss John Doe from the case . Although we do not know whether the Circuit C ourt dism issed J ohn D oe, because he was never served, is not a party, and does not represent a real person, we do not addres s any filing s made after the writ of certiora ri was is sued. 6 Realtime Gam ing and KDM S, in turn, filed a motion opposing BSI s motion for reconsideration and seeking to have the amended complaint stricken. In so doing, Realtime Gaming and KDMS asserted that BSI offered no new facts that would establish personal jurisdiction over th em. On Septem ber 21, 2004, the C ircuit Court denied BS I s motion for recons ideratio n and g ranted th e motio n to strik e the am ended comp laint. On October 20, 2004, BSI filed its notice of a ppeal. 8 Prior to any proceedings in the Court of Special Appeals, BSI, on Nov ember 22, 2004 , filed a petition for writ of certiorari containing the following questions: 1. Did the trial court err in dismissing Petitioner s claims against Respondents under the Maryland anti-spam statute, § 143001 et seq. of the Commercial Law Article of the Annotated Code of Ma ryland, for initiating, conspiring to initiate, or assisting in the transmission of 240 e-mails advertising 8 Because BSI filed its Motion for Reconsideration under Rule 2-534, which governs motions to alter or amend judgment, within the ten-day period specified in the Rules, the judgment dismiss ing the c ompla int lost its f inality for a ppeal p urpose s. See Pop ham v. S tate Farm Mut. Ins. Co., 333 M d. 136, 143 , 634 A.2d 28, 31-32 (1994); Unnamed Att y v. Attorney Grievan ce Comm n, 303 Md. 473 , 486, 494 A.2d 9 40, 946 (1985). Rule 8-202, governing the proper time for filing notice of appeal, provides in pertinent part: In a civil action, when a timely motion is filed pursu ant to Rule . . . 2-534, the notice of appeal shall be filed within 30 days after entry of (1) a notice withdrawing the motion or (2) an order denying a motion pursuant to Rule 2-533 or disposing of a motion pursua nt to Ru le 2-53 2 or 2-5 34. In the present case, the court denied the motion for reconsideration on September 21, 2004 and BSI filed its notice of appeal to the Court of Special Appeals on October 20, 2004, within the 30-day period set forth in Rule 8-202. Therefore, we have jurisdiction to hear the appea l. 7 Respondents business, for lack of personal jurisdiction? 2. Did the trial court err in denying Petitioner s request to take discovery as to the nature and exten t of Responde nts contacts with Maryland for purposes of personal jurisdiction under the facts described above? 3. Did the trial court err in striking the amended complaint containing detailed allegations of fact, including facts relevant to the issue of personal jurisdiction? On December 17, 2004, we granted the petition and issued the writ. Beyond Systems, Inc. v. Realtime Gaming Holding Company, LLC, 384 Md. 448 , 863 A.2d 997 (2004). 9 Because we concur with the trial court s determination that BSI has failed to make a prima fac ie showing of personal jurisdiction by a preponderance of the evidence , we hold th at the Circu it Court properly determine d that the actio n could no t proceed to trial. Moreover, we determine that t he C ircuit Co urt did no t abu se its discretio n in d enyin g BS I s re quest for disc overy. Standard of Review The trial court dismissed BSI s complaint for lack of personal jurisdiction over Realtime Gaming and KDMS under M aryland Rule 2-322 (a) and (c), which state in 9 Prior to argument in this Court, on April 18, 2005, BSI filed a motion to supplement the record under Maryland Rule 8-414, which Realtime Gaming and KDMS opposed as an impermiss ible motion to introduce evidence that was not presented below. Maryland R ule 8-414 permits the Court, upon the motion of a party or sua spon te, to order that an error or omission in the record be corrected. M d. Rule 8-4 14. In its mo tion, BSI se eks to introduce additional pages from the Internet, which we re not presented to the cou rt below, to further bolster its allegations concerning the relationship between Realtime Gaming, KDMS, and windowscasino.com. Because the evidence at issue was not erroneously omitted from the record transmitted from the Circuit Court, and BSI does not seek to correct any error contained in the record, its motion to supplement is denied. 8 pertinent pa rt: (a) Mandatory. The following defenses shall be made by motion to dismiss filed before the answer, if a n answe r is required: (1) lack of jurisdiction over the person, (2) improper venue, (3) insufficiency of process, and (4) insufficiency of service of process. If not so made and the answer is filed, these defenses are waived. *** (c) Disposition. If, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated a s one for summ ary judgment and disposed of as provided in Ru le 2-501, an d all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 2-501. Md. Rule 2-3 22 (a) and (c). As Judge Pa ul V. Niem eyer notes in his Maryland Rules Commentary, Third Edition, all of the defenses listed in Maryland Rule 2-322 (a) are collateral to the merits and raise questions of law. Judge Paul V. Niemeyer and L inda Sh uett, M ARYLAND R ULES C OMMENTARY, T HIRD E DITION 205 (2003). If facts are necessary in deciding the motion, the court may consider affidavits or other ev idence adduc ed duri ng an e videntia ry hearing . Id.10 Discussion 10 This contrasts w ith the effect of the trial court s conside ration of matters outside the pleadings on a motio n to dismiss for failure to state a claim upon which relief may be granted under Maryland R ule 2-322 (b). Rule 2-32 2 provide s that if the trial court grants a motion to dismiss for failure to state a claim upon which relief may be granted after considering evidence outside the four corners of the complaint, we view the motion as having converted into one of summary judgment for review purposes. See Green v. H & R Block, Inc., 355 Md. 4 88, 501 , 735 A .2d 103 9, 1047 (1999 ). 9 BSI argues that it has made a prima fac ie showing of minim um conta cts with Maryland that is sufficie nt to defea t a motion to dism iss for la ck of p ersona l jurisdict ion. To that end, BSI notes that it received 240 e-mails from an individual promoting goldenrhinocasino.com, a website that contained links to download KDMS s software from an IP address assigned to KDMS, which corresponds to a server owned by KDMS and Realtime Gaming. BSI notes that the same IP address and server are also promoted on the windowscasino.com website, which powered the goldenrhinocasino.com web page. From these allegatio ns, and windowscasino.com s involvement in the design of the goldenrhinocasino.com website and the e-mails, BSI concludes that Realtime Gaming and KDMS are directly involved in running windowscasino.com, and therefore, were involved in the transmission of the e-mails in question. Thus, BSI asserts that it has satisfied the prima facie showing required for the Circuit Court to properly exercise personal jurisdiction over Realtime Gaming and KDMS pursuant to Comb v. Bakker, 886 F.2d 673 , 676 (4th Cir. 1989) . BSI further argu es that the trial co urt abused its discretion by denying it discovery concernin g persona l jurisdiction. A ccording to BSI, the juris dictional issue is inextricably intertwined with the merits of the case, and therefore, the court should have permitted the action to proceed with discovery. BSI states that to do otherwise is inequitable. Fina lly, BSI asserts that the trial court abus ed its discretion in striking the amended complaint because the facts alleged therein and supporting materials showed that Realtime 10 Gaming and KDMS had sufficient contacts with Maryland to support personal jurisdiction. BSI contends that permitting the amended complaint to stand would not have prejudiced Realtime Gaming or KDMS, and that the court ignored the principle that leave to amend genera lly should be gran ted. Con vers ely, Realtime Gaming and KDMS argue that BSI has not demonstrated a prima facie case of specific personal jurisdiction or general personal jurisdiction. Realtime Gaming and KDM S assert that BSI has not pointed to any evidence showing an agency or subsidiary relationship between them and window scasino.com or Travis Thom, the individual who arra nged for the e-mails to be se nt. Moreover, Realtime Gaming and KDMS contend that neither com pany has an y contacts with the State of M aryland, i.e., are not incorporated in Maryland, do not conduct b usiness in M aryland, and w ere not invo lved in the transmission of the e-m ails at issu e, and a s such, are not subject to specific or general personal jurisdicti on. Realtime Gaming and KDMS also argue that the trial court did not abuse its discretion when it denied BSI s r equest for disc overy. T hey a ssert that BSI provided no basis upon which to grant discovery beyond conclusory allegations and bald-faced assertions of jurisdiction. Ultimately, Realtime Gaming and KDMS characterize BSI s desire for discov ery as a fis hing ex pedition . Fina lly, in response to BSI s arg uments co ncerning th e striking of the amended complain t, Realtime Gaming and KD MS co ntend that th e trial court did n ot abuse its 11 discretion when it denied BSI s request for leave to amend. They argue that the trial judge properly exercised his discretion because the amended complaint was based on facts that were already before the court, and therefore, could n ot cure the fatal defects in B SI s action. Conditions for Personal Jurisdiction Whether a court may exert personal jurisdiction over a foreign defendant entails dual considerations. First, we consider whether the exercise of jurisdiction is authorized under Maryland s long arm sta tute, M d. Cod e (1973 , 2002 R epl. Vo l.), § 6-103 of the Courts and Judicial Proceedings Article.11 See Lam precht v. P iper Aircra ft Corp., 262 Md. 126, 130, 11 Md. Code (1973, 2002 Repl. Vol.), Section 6-103 of the Courts and Judicial Proceedings Article provides: (a) Condition. If jurisdiction over a pers on is based solely upon this s ectio n, he may b e sue d only on a cause of action arising from any act enumerated in this section. (b) In genera l. A court may exercise personal jurisdiction over a person, w ho directly or by an agent: (1) Transacts any business or performs any character of work or service in the State; (2) Contra cts to sup ply good s, food , services, or manufactured products in the State; (3) Causes tortious injury in the State by an act or omission in the State; (4) Causes tortious injury in the State or outside the State by an act or om ission outside the State if he regularly do es or solicits business, en gages in any other persistent course of conduct in the State or derives substantial revenue from goods, food, services, or manufacture d products used or consumed in the State; (5) Has an interest in, uses, or possesses real property in the State; or (contin ued...) 12 277 A.2d 272, 275 (197 1); Carefirst of Maryland, Inc. v. Carefirst Pregnancy Centers, Inc., 334 F.3d 390, 396 (4th Cir. 2003); Christian Sci. Bd. of Dirs. of the First Church of Christ 11 (...continued) (6) Contracts to insure or act as a surety for, or on, any person, property, risk, contract, obligation, or agreement located, executed, or to be performed within the State at the time the con tract is made, unless the parties otherwise provide in writing. (c) Applicability to computer information and computer programs. (1)(i) in this subsection the following terms have the meanings indicated. (ii) Computer information has the meaning stated in § 22-102 of the Commercial Law Article. (iii) Computer program has the meaning stated in § 22-102 of the Commercial Law Article. (2) The provisions of this sec tion apply to computer information and com puter prog rams in the same manner as they apply to goods and services. Maryland Code (2002, 2004 Cum. Supp.), Section 22-102 (10) of the Commercial Law Article provides: Computer information means informatio n in electronic form which is obtained from or through the use of a computer or which is in a form capable of being processes by a computer. The term includes a copy of the information and any docume ntati on or pac kaging a ssoc iated with the c opy. Maryland Code (2002, 2004 Cum. Supp.), Section 22-102 (12) of the Commercial Law Article provides: Computer program means a set of statements or instructions to be used directly or indirectly in a computer to bring ab out a certain result. The term does not include sep arately identifiable inform ational c ontent. 13 v. Nolan, 259 F.3d 209, 215 (4th Cir. 2001). Our second task is to determine whether the exercise of jurisdiction compor ts with due process req uirements o f the Fou rteenth Amen dment. Lamprecht, 262 M d. at 130, 27 7 A.2d a t 275; Carefirst, 334 F.3d at 396; Christian Sci. Bd. of Dirs., 259 F.3d at 215. W e have co nsistently held that the purview of the long arm s tatute is coexte nsive with the limits of personal jurisdiction set by the due process clause of the Fed eral Co nstitution . See e.g., Mohamed v. Michael, 279 Md. 653, 657, 370 A.2d 55 1, 553 (19 77); Geelhoed v. Jensen, 277 Md. 220, 224, 352 A .2d 818, 821 (197 6); Lamprecht, 262 M d. at 130 , 277 A .2d at 27 5. BSI alleges that the e-mails at issue in the presen t case violate the Maryland Commercial Electronic Mail Act ( MCEMA ), Md. Code (2002, 2004 Cum. Supp.), §§143001 to 14-3003 of the Commercial Law Article, which provides for a private cause of action to seek redress for tortious injury arising from the receipt of misleading or fraudu lent, unsolicited, co mmercia l e-mail. Sectio n 14-300 2 provide s in pertinent p art: (b) Prohibition. A perso n may not initia te the transmission, conspire with another person to initiate the transmission, or assist in the trans mission of comme rcial electronic mail that: (1) Is from a c omputer in the State or is sent to an electronic mail address that the sender knows or should have known is held by a resident of the State; and (2)(i) Uses a third part s Interne t domain name or electronic mail address without the permission of the th ird party; (ii) Contains false or misleading information about the origin or the t r a n s m i s s io n p a t h o f th e commercial electronic mail; or 14 (iii) Contains false or misleading information in the subject line that has the c apac ity, ten dency, or effect of deceiv ing the recip ient. Md. Code (2002, 2004 Cum Supp.), § 14-3002 if the Commercial Law Article. This statute was enacted in 2002 by the General Assembly in an effo rt to curb the dissemination of false or misleading information through unsolicited, commercial e-mail, as a deceptive business practice. Economic Matters Committee, Fl. Rpt., HB 915, at 2. At the time of the statute s enactment, twenty-one o ther states had already enacte d some f orm of sta tutory scheme to address the prolife ration o f spam . 12 See Spam Laws: Summary, Bill File, HB 915. Thus, 12 As the Washington Supreme Court noted in State v. Hecker, 24 P.3 d 404,4 06 n.1 (Wash. 2001): The term spam refers broadly to unsolicited bulk e-mail (or junk e-mail ), which can be e ither commercial (such as an advertisem ent) or noncomme rcial (such as a joke or ch ain letter). Sabra Ann e Kelin , State Regulation of Unsolicited Commercial E-Mail, 16 Be rkeley Te ch. L.J. 4 35, 436 & n . 10 (2001). Use of the term spam as Internet jargo n for this seemingly ubiquitous junk e-mail arose out of a skit by the British comedy trou pe Mo nty Python, in wh ich a waitress can offer a pa tron no sing le menu item that does not include spam: Well, there's spam, egg, sausage and spam. Tha t's not got much spam in it. 2 G raham Chap man e t al., The Co mplete M onty Pytho n's Flying Circus: All the Words 27 (Pantheon Books 1989). Hormel Foods Corporation, which debuted its SPAM® luncheon mea t in 1937, has drop ped any defensiveness about this use of the te rm and n ow celeb rates its produ ct with a website (www .spam.c om). See Hormel Objects to Cyber Promotions Use of SPAM Mark, 4 No. 1 A ndrews I ntell. Prop. Litig. Rep. 19 (1997); Laurie J. Flynn, Gracious Concession on Internet Spam, N.Y. Times, Aug. 17, 1998, at (contin ued...) 15 BSI asserts that the e -mails and th eir content p rovide the b asis for the trial c ourt to assert person al jurisdic tion thro ugh the long ar m statut e. The Maryland long arm statute, Md. Code (1973, 2002 Repl. Supp.), Section 6-103 of the Courts and Judic ial Proceed ings Article, w as first enacte d in 1964 in response to the Supreme C ourt s decision in Int l Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). 13 This statute, codified as Maryland C ode (195 7, 1964 C um. Sup p.), Article 75 Section 96, provided: (a) 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 (1) transacting any business in this State; (2) contracting to supply services in this State; (3) causing tortious injury in this State by an act or omission in this State; (4) causing tortious injury in this State by an act or omission outside the State if he regularly does or solicits business, engages in any other persistent course of conduct in this State or derives substantial revenue from food or services used or consumed in this State; 12 (...continued) D3. Because the term has been widely adopted by Internet users, legislators, and legal commentators, we use the term herein, along with its useful derivatives spammer and spam ming. 13 Prior to Int l Shoe, the Supreme Court s opinion in Pennoy er v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877), provided that due process required service of process on an individual defendant while pres ent within th e state for a v alid personal judgment. A corporation only existed within the borders of the state of its inc orpora tion, see Bank of Augus ta v. Earle, 38 U.S. 519, 10 L.Ed. 27 4 (1839), and states had no jurisdiction over foreign corporations. Bernard Auerbach, The Long Arm Comes to Maryland, 26 M d. L. Re v. 13, 14 (1966 ). 16 (5) having an interest in, using, or possessing real property in this State; [or] (6) contracting to insure any person, property, or risk located within this State at the time of contracting; (b) When ju risdiction ove r a person is b ased solely on this section. In 1965, the Section was amended to add language to subsection (b) that had been omitted inadve rtently, see 1965 Md. Laws, Chap. 749, so that subsection (b) read: (b) When jurisdiction over a person is based so lely upon this section, only a cause of action arising from acts e numerate d in this section may be asserted against him. Md. Code (1 957, 196 5 Cum . Supp.), A rt 75 § 96 (b ). In 1968, su bsection (a)(6) was amended to state: (a)(6) contracting to insure or act as a surety for, or on, any person, property, or risk, contract, obligation, or agreement located, executed or to be perf ormed w ithin this State at the time of contracting, unless the parties otherwise provide in writing. Md. Code (1957, 1968 Repl. Vol.), Art. 75 § 96 (a)(6). As part of the recodif ication effo rt, in 1973, the General Assembly revised this Section and renumbered it as Section 6-103 of the Courts and Judicial Proceedings Article: (a) Condition. If jurisdiction over a person is based solely upon this section, he may only be sued on a cause of action arising from any act enumerated in this section. (b) In genera l. A court may exercise personal jurisdiction over a person, w ho directly or by an agent: (1) transacts any business or performs any character of work or services in this State; (2) contracts to supply goods, food , services, or manufactured products in the State; 17 (3) causing tortious injury in this State by an act or omission in this State; (4) causes tortious injury in the State or outside of the State by an act or omission outside the S tate if he regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from goods, food, services, or manufactured products used or consumed in the State; (5) has an interest in, uses, or possesses real property in the State; or (6) Contracts to insure or act as a surety for, or on, any person, property, risk, contract. obligation, or agreement located, executed, or to be performed within the State at the time the con tract is made, unless the parties otherwise provide in writing. Md. Code (1973), § 6-103 of the Courts and Judicial Proceedings Article. According to the commentary published with the statute, the long arm statute was intended to give Maryland courts jurisdiction to the full extent permitted by the Federal Constitution. 1973 Md. Laws, 1st Sp. S ess., Ch ap. 2 § 1 . In 2000, the Gene ral Assembly amend ed the long arm statute for the final time with the Maryland U niform C omputer I nformatio n Transa ctions Ac t and added current subsection (c) to expand the courts jurisdicti on ove r com puter in forma tion an d com puter p rogram s. 2000 Md. Laws, Chap. 11 ( specifying that provisions of law granting jurisdiction over a person in a cause of action include certain computer information and computer information transactions ). Current subsection (c) of the long arm statute provides: (c) Applicability to computer information and computer programs. (1)(i) In this subsection the following terms have the meanings indicated. 18 (ii) Computer information has the meaning stated in § 22-102 of the Commercial Law Article. (iii) Computer p rogram has the meaning stated in § 22-102 of the Commercial Law Article. (2) The provisions of this s ection app ly to computer information and computer programs in the same manner as they apply to goods and services. Md. Code (1973, 2002 Repl. Vol.), § 6-103 (c) of the Courts and Judicial Proceedings Article. Computer information and computer program are defined as follows under the Maryland Code: (10) Computer inf ormation mean s information in electronic form which is obtained from or through the use of a computer or which is in a form capable of being pro cessed by a compu ter. The term inclu des a copy of the information and any docume ntati on or pac kaging a ssoc iated with the c opy. *** (12) Computer program means a se t of statements or instructions to be used directly or indirectly in a computer to bring about a certain result. The term does not include separately iden tifiable inform ational con tent. Md. Code (2004 Cum. Supp.), §§ 22-102 (10) and (12) of the Commercial Law Article. Although e-mails brought the present case to court, the gravamen of the personal jurisdiction issue for the purposes of the long arm statute arise out of advertisements for licensed proprietary software for use on computers, which require the user to download the program from a remote so urce. The softwa re at issue consists only of machin e-readable code to execute a certain action o n the us er s com puter. B LACK S L AW D ICTIONARY, 19 proprietary software (8th ed. 20 04). Thus, conducting business in Maryland that involves supplying compute r program s or inform ation to M aryland residen ts will be treate d in the same manner as if the programs and information were tangible goods or services provided by a business. Advertising the software at issue may form the basis of personal jurisdiction under the Marylan d long arm statute based upon the d efinition of com puter p rogram . Before we explore the issue of whether the minimum contacts test has been m et, however, a discussion of the characteristics of the Internet is warranted. The Internet In Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), the Supreme Court provided its explanation of the Internet as: an international network of interconnected computers. It is the outgrow th of what began in 1969 as a military program called AR PAN ET, [an acronym for the network developed by the Advanced Research Project A gency] wh ich was d esigned to enable computers operated by the military, defense contractors, and universities co nducting d efense-rela ted research to commu nicate with one ano ther by redund ant chann els even if some p ortions o f the ne twork were d amag ed in a w ar. While the ARPANET no longer exists, it provided an example for the development of a number of civilian networks that, eventually linking with each other, now enable tens of millions of people to communicate with one another and to access vast am ounts o f inform ation fr om aro und the world . Id. at 849- 50, 117 S.Ct. at 2 334, 13 8 L.Ed .2d at 88 4. Because the Internet is a global network of comp uters, each compute r connecte d to the Internet must h ave a u nique a ddress , Rus S huler, H OW D OES THE INTERNET W ORK? 20 (Whitepaper 2002), 14 known as an Intern et Protocol A ddress, wh ich can b e used to identify the source of the c onnec tion to t he Inter net. United States v. Bach, 400 F .3d 622 , 625 n.4 (8th Ci r. 2005 ). When connecte d to the Internet, computers communicate with each other through the use of a protocol[15] stack, w hich is u sually the TCP /IP proto col stack . For example, when someone is sending an e-mail, the e-mail message enters through the Application Protocols Layer, which corresponds to specific programs such as browsers for using the World Wide Web and e-mail. The message then enters the Transmission Control Protocol ( TCP ), which directs certain information to a specific application or program on a computer using a port. From the TCP layer of the protocol stack, the message then moves into the Internet Protocol Layer, which directs the message to a specific computer using an IP address. T he final step in the process prior to entering the Internet is for the Hardw are Layer to c onvert the me ssage f rom bin ary data to netwo rk signa ls. The message is then transm itted via an Internet Service Provider ( ISP ) which examines the IP add ress of the m essage an d routes the informatio n to the computer with the proper IP address. When the message reaches its intended recipient, the receiving computer reverse s the TC P/IP pr otocol s tack an d the m essage is deco ded. 14 The information concerning the structure of the Internet that follows is taken from H OW D OES THE INTERNET W ORK? unless otherwise cited. 15 Protoco l is a set of conventions governing the treatment and especially the formatting of data in an el ectro nic c omm unic ation s syste m. M erria m-W ebster D ictio nary, proto col (10 th ed. 20 02). 21 Constitutional Considerations in Personal Jurisdiction Because we have consistently held that the reach of the long arm statute is coextensive with the limits of personal jurisdiction delineated under the due process clause of the Federal Constitution, our statutory inq uiry merges w ith our cons titutional exam ination. See Mohamed v. Michael, 279 M d. at 656, 37 0 A.2d a t 553; Carefirst, 334 F .3d at 39 6-97. A court s exercise of personal jurisdiction over a nonresident defendant satisfies due process requireme nts if the defendant has minimum contacts with the forum, so that to require the defendant to defend its interests in the f orum state does not offend traditional no tions of fair play and substantial justice. Int l Shoe Co. v. Washington, 326 U.S. 310 , 316, 66 S .Ct. 154, 158, 90 L.Ed. 9 5, 102 ( 1945) . General Personal Jurisdiction The standard for determining the existence of personal jurisdiction over a nonresident defendant depends upon whether the defendant s contacts with the forum sta te also provide the basis for the suit. If the defendant s contacts with the State are not the basis for the suit, then jurisdiction over the defendant must arise from the defendant s general, more persistent contacts with the State. To establish general jurisdiction, the defendant s activities in the State must have been continuous and systematic. Carefirst, 334 F.3d at 397, quoting ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F .3d 707 , 712 (4 th Cir. 2 002), cert. denied, 537 U.S. 1105, 123 S.Ct. 868, 154 L.Ed.2d 773 (2 003); see Helicopteros Nacionales de Columbia, S.A. v. Hall , 466 U .S. 408 , 414 & n.9, 104 S.Ct. 18 68, 187 2 & n.9 , 80 L.Ed .2d 22 404, 411 & n.9 (19 84). BSI has a lleged both general an d specific personal jurisdiction over Realtim e Gam ing and KDM S. With respect to M aryland s ability to exercise general personal jurisdiction over Realtime Gaming and KDMS, BSI alleg es that Rea ltime Gam ing s web site is highly interactive and permits the corporation to solicit business in Maryland, enter contracts, conduct sales, and accrue profits. Moreover, BSI asserts that the f act that the site link s to other websites that have links to download KDMS s gaming software, which may be in use in Maryland, creates lines of communication with people in Maryland and sources of substan tial reven ue. The first case explicating a mode l framework for exploring whether websites on the Internet can be used as a basis for conferring personal jurisdiction on the courts is Zippo Manufacturing Co. v. Zippo Do t Com, Inc., 952 F .Supp . 1119 ( W.D . Pa. 199 7). See Toys R Us, Inc. v. Step Two S.A., 318 F.3d 446, 452 (3d Cir. 2003) (stating that Zippo has become a seminal authority regarding personal jurisdiction based upon the operation of an Internet website ); Carefirst, 334 F.3d at 399 (notin g that Zippo first enunciated that court s influential sliding scale model for applying personal jurisdiction requireme nts to electronic commerce); Sublett v. W allin, 94 P.3 d 845, 8 51 (N .M. 2004) (observing that the sliding scale of interactivity was first articulated in Zippo). In Zippo, an action arising out of a trade mark violation alleged by Zippo Manufacturing Co., which produces lighters, against Zippo Dot Com, Inc., an online news ser vice, the cou rt suggested the use of a sliding scale of 23 personal jurisdiction that is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet. Zippo, 952 F.Supp. at 1124. The Zippo court described it as a spectrum which: [a]t one end . . . are situations where a defendant clearly does business over the Internet. If the defend ant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of co mputer file s over the In ternet, personal jurisdicti on is pro per. E.g., CompuServe, Inc. v. Patterson, 89 F.3d 1 257 (6th Cir. 1996) . At the opp osite end are situations where a d efendan t has simply posed information on an Internet Website which is accessible to users in foreign jurisdictions. A passive W ebsite that does little more than make information available to those who are interested in it is not grounds for the exercise of person al jurisdic tion. E.g., Bensusan Restaurant Corp. v. King, 937 F.Supp. 295 (S.D.N.Y. 199 6). The middle gro und is occupied by interactive Websites where a user can exchange informatio n with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commerc ial nature of the exchange of information that occurs on the W eb site. E.g., Maritz, Inc. v. Cybergold, Inc., 947 F .Supp . 1328 ( E.D. M o. 1996 ). Zippo, 952 F.Supp. at 1124. In Maritz, Inc. v. Cybergold, Inc., 947 F.Supp. 1328 (E .D. Mo. 1996 ), the defendant hosted a website as a promotion for the launch of its Internet service. Although the service was not operatio nal, visitors to the site were encouraged to add their address to a mailing list to receive its update s abou t the serv ice. Id. at 1330. The plaintiff brought suit to recover for copyright infringem ent based u pon the website s availabilty to consumers in M issouri. In rejecting the defendant s contention that it operated a passive website, the court reasoned 24 that the defendant s conduct amounted to active solicitations and promotional activities designed to develop a mailing list of Internet users and that the defenda nt indiscrim inately respon ded to e very user who access ed the s ite. Id. at 1333-34. At the opposite end of the spectrum, the court in Bensusan Restaurant Corp. v. King, 937 F. Supp. 295 (S.D.N.Y. 1996), concluded that the website at issue in that case did not enable the court to exercise personal jurisdiction over the defenda nt. The Inter net webs ite in issue contained general information about the defendant s club, a calendar of events, and ticket inform ation. Id. at 297. The site was not interactive, and if a user w anted to go to the club, she wou ld have to c all or visit a ticket outlet and then pick up tickets at the club on the night o f the sh ow. Id. BSI contends that it has established a prima fac ie case for general jurisdiction based upon the Zippo sliding scale of interactivity of websites. In the proceedings before the trial court, BSI alleged that Realtime Gaming and KDMS s website is highly interactive without further fact ual support ill ustra ting its interac tivity o r its u se by r esidents of Maryland. In light of the dearth of evidence to the contrary, we find that the trial court s determination that Realtime Gaming and KDMS s website is not highly interactive is not clearly erroneous. Moreover, the Zippo scale is not particularly well-suited for use in the general personal jurisdiction inquiry16 because even repeated contacts with forum residents by a foreign 16 In Zippo, the plaintiff had conceded that only specific jurisdiction was at issue. Zippo, 952 F.Supp. at 1122. 25 defendant may not con stitute the requ isite substantial, continu ous and system atic contacts required for a fin ding of genera l jurisdict ion. Revell v. Lidov, 317 F.3d 467, 471 (5th C ir. 2002); see also Bancroft & Masters, Inc. v. Augusta Nat l Inc., 223 F.3d 1082 , 1086 (9th Cir. 2000) ( [E]ngaging in commerce with residents of the forum state is not in and of itself the kind of activity tha t appro ximate s physica l presen ce with in the sta te s bord ers ). Irrespective of the sliding scale delineated in Zippo, the question of general jurisdiction is not dif ficult to r esolve . Though the maintenance of a we bsite is, co ncei vably, a continuous presence everywhere, the existence of a webs ite alone is not s ufficient to establish general jurisdiction in Maryland over Realtime Gaming and KDMS. BSI provided the trial court with no evidence beyond Realtime Gaming and KD MS s website, to establish substantial, continuous, systematic contac ts with M aryland. Therefore, we conclude that the trial court prop erly determined that it lacked general jurisdiction over Realtime Gaming and KDMS. Specific Personal Jurisdiction If the defendant s contacts with the forum state form the basis for the suit, however, they may establish specific jurisdiction. Carefirst, 334 F.3d at 397. In determining whether specific jurisd iction exists, we consider (1) the extent to which the defendant has purposef ully availed itself of the privilege of conducting activities in the State; (2) whether the plaintiffs claims arise out of those activities directed at the State; and (3) whether the exercise of personal ju risdiction w ould be con stitutiona lly reason able. Carefirst, 334 F.3d 26 at 397; ALS Scan, 293 F.3d at 711-12; see Helicopteros, 466 U.S. at 414 & n.8, 104 S.Ct. At 1872 & n.8, 80 L.Ed.2d at 411 & n.8. BSI asserts that it has established a prima fac ie case for specific jurisdiction over Realtime Gaming and KDMS because it has alleged that Realtime Gaming and KDMS own or control windowscasino.com, the company that assisted Thom in designing the website for the Golden Rhino Casino and the unsolicited commercial e-ma ils that BSI received. In support of this assertion, BSI notes that windowscasino.com has a link that leads to a n IP address that is registered to Realtime Gaming and KDMS and that the e-mails at issue contain ed a link which ultimate ly led to the same IP addres s. Specific ally, BSI must make a prima fac ie showing that an agency or contractual relationship exists between Realtime Gaming and KDMS and windo wscas ino.com . See Md. Code (1973, 2002 Repl. Vol.), § 6-103 of the Courts and Judicial Proceedings Article. An agency relationship is a legal concept which depends upon the existence of required factual elements: the manifestation by the principal that the agent shall act for him, the ag ent s acceptance of the undertaking and the understanding of the parties that the principal is to be in control of the undertaking. Restatem ent (Secon d) of Ag ency §1, cm t. (1958); see Insurance Company of North America v. Miller, 362 Md. 361, 373, 765 A.2d 587, 593 (2001); Green v. H & R Block, Inc., 355 Md. 488, 503, 735 A.2d 1039, 1047 (1999). Although such a relatio nship is not n ecessarily contra ctual in nature, it is always con sensual. Insurance Co. Of N. Amer., 362 Md. at 373, 765 A.2d at 593, citing Lohmuller Bldg. Co. v. 27 Gamb le, 160 Md. 534, 539, 154 A. 41, 43 (1931). The ultimate question is one of intent, of both th e princip al and th e agen t. Id.; Howard Cleaners v. Perman, 227 Md. 291, 295, 176 A.2d 235, 237 (1961 ). We have recognized three factors as h aving partic ular relevan ce to the determination of an agency relationship. These factors are: (1) The agent s power to alter the legal relations o f the princip al; (2) The age nt s duty to act prim arily for the ben efit of the principal; and (3) The p rincipal s right to control the a gent. Green, 355 Md. at 503, 735 A.2d at 1048, citing United C apitol Ins. v. K apiloff, 155 F.3d 488, 498 (4th C ir. 1998); Proctor v. Holden, 75 M d. App . 1, 20, 54 0 A.2d 133, 14 2, cert. denied sub nom., 313 Md. 506, 545 A.2d 13 43 (1988 ); Schear v, Motel Management Corp., 61 Md. App. 670, 687, 487 A.2d 1240, 1248 (1985) (stating the factors derive from sections 12-14 of the Restatement); Restatement (Second) of Agency §§ 12-14 (1958). The three factors are evaluated within the totality of the circumstances. Green, 355 Md. at 506, 735 A.2d at 1049. The presence of all three factors is not required for a finding of an agency relation ship. Id. The only evidence of any kind of relationship between Realtime Gaming and KDMS and windowscasino.com is the fact that the windowscasino.com website co ntains a link to an IP address registered to KDMS w here customers can download the gaming s oftware. T his does not establish or even indicate a relationship, principal-agent or contractual, between Realtime Gaming and KDMS, on the one hand, and w indowsc asino.com on the othe r in which window scasino.com is empow ered to act o n Realtim e Gaming and KDM S s behalf 28 or whether Realtime Gaming and KDMS control windowscasino.com. BSI does not provide any evidence of mutual corporate officers, board members, owners, or other such controlling individuals or entities to show anything mo re than that windowscasino.com has obtained a sub-license from Montana Overseas. A mere link with no more compelling evidence is insufficient to create the necessary nexus between Realtime Gaming and KDMS, and windowscasino.com and Thom.17 Because BSI has failed to provide any evidence of a relationship among Realtime Gaming, KDMS, windowscasino.com, and Thom, that is either governed by a contract or possesses those qualities characteristic of agency relationships, we fail to see any substantive contact with Maryland or connection with the conduct giving rise to this suit, and as such find that it would not be constitutionally reasonable to exercise personal jurisdiction over Realtim e Gam ing and KDM S on th ese fac ts. The Denial of Discovery BSI claims that the trial judge abused his discretion in ruling on the motion to dismiss at the May 26, 2004 hearing and in denying its request for discovery. We review the denial of discovery under the abuse of discretion stan dard and will only conclude that the trial court abused its discretion where no reasonable person would take the view adopted b y the [trial] 17 BSI also asserts that Realtime Gaming and KDMS receive substantial revenue from citizens in Maryland through online casinos w hich use the ir software without an y support. Visitors to windowscasino.com, for example, download the software designed by KDMS for free. BSI has failed to show any connection between Realtime Gaming and KDMS an d windowscasino.com. 29 court[] . . . or when the court acts without reference to any guiding principles, and the ruling under consideration is clearly against the logic and effect of facts and inferences before the court[] . . . or when the ruling is violative of fact and logic. Wilson v. Crane, __ Md. __, __, __ A.2d __, __ (February 10, 2005), quoting In re Adoption/Guardianship No. 3598, 347 Md. 295, 312-13, 701 A.2d 110, 118-19 (1997) (citations omitted). We do not find that the trial cou rt s decision in the present c ase is beyond the d ecision that a r easonab le person would make in light of the fact that BSI was unable to produce any evidence of a connection between Realtime Gaming and KDMS, on the one hand, and windowscasino.com and Thom, on the other, beyond a link leading to an IP address at which in dividuals co uld down load the softw are des igned b y KDM S. Striking the Amended Complaint On June 2, 2004, the trial court issued an order dismissing BSI s complaint that was silent as to whether the complaint was dismissed with or without prejudice. BSI argues that the trial court abused its discretion in striking the amended complaint that it filed and cites a number of this Court s cases for the proposition that a dismissal is without prejudice unless otherwise specified in the order of dism issal. See, e.g., Williams v. Snyder, 221 Md. 262, 157 A.2d 265 (1960); State ex rel. L ennon v. S trazzella, 331 Md. 270 , 627 A.2d 105 5 (1993). BSI also notes th at Maryland Rule 2-34 1(c) provid es that [a]m endmen ts shall be free ly allowed when justice so permits . Despite the preference for freely permitted amendments, BSI failed to introduce any new facts to cure its inability to produce prima fac ie evidence of 30 Maryland s personal jurisdiction over Realtime Gaming and KDMS. Therefore, we find that the trial court did not abuse its discretion in denying the motion for reconsideration and striking BSI s A mend ed Co mplain t. Conclusion Because we find that the trial court properly concluded, based on the evidence introduced, that BSI failed to establish a prima fac ie case for general or specific personal jurisdiction over Realtime Gaming and KDMS, we affirm the trial court s order dismissing the complaint. Moreover, we conclude that the trial cou rt did not abu se its discretion in denying BSI discovery or denying the motion for reconsideration and striking the amended complain t. JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFF IRM ED. COSTS TO BE PAID BY THE PETITIONER. 31 In the Circu it Court for M ontgom ery County Civil No. 248508 IN THE COURT OF APPEALS OF MARYLAND No. 119 September Term, 2004 BEYOND SYSTEMS, INC. v. REALTIME GAMING HOLDING COMPANY, LLC, ET AL. Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Dissen ting op inion b y Raker, J ., which Bell, C .J., and H arrell, J., joi n. Filed: June 22, 2005 Raker, J., disse nting, in wh ich Bell, C.J., an d Harrell, J., join: I would reverse the judgment of the Circuit Court because the court abused its discretion in denying petitioner BSI s request for fu rther discovery as to jurisdictional facts. The Circuit Court granted respondents KDMS and Realtime s motion to dismiss the complaint on the grounds that respondents were not subject to the personal jurisdiction of the court and that petitioner was not entitled to discovery on the issue. The majority holds that the Circuit Court acted within its discretion to deny discov ery in light of the fact that BSI was unable to produce any evidence of a connection between Realtime Gaming and KDMS, on the one hand, and windowscasino.com and Thom, on the other, beyond a link leading to an IP address at which in dividuals co uld dow nload the so ftware de signed by K DMS . Maj. Op. at 30 (emphasis in original). I disagree. I agree that based on the record before the court, evidence of Maryland contacts was insufficient to subject respondents KDMS and Realtime to personal jurisdiction in Maryland. Discovery in this case was to close on September 27, 2004, with disco very requests to end by August 27, 2004. On May 26, 2004, the Circuit Court issued an order granting respondents motion to dismiss for lack of personal jurisdiction and denying petitioner s discovery requests as to the jurisdiction issue. Petitioner filed a motion for reconsideration on June 11, 2004. On July 27, 2004, while the motion for reconsideration was pending, petitioner sent interroga tories and d ocumen t requests to re sponden ts, seeking dis covery related to personal jurisdiction . The Circuit Court denied petitioner s motion for reconsideration on Septem ber 21, 200 4. In my view , the court ab used its discre tion in denying petitioner discovery on the issue of personal jurisdiction. The general rule is that a court should not dismiss a claim for la ck of personal jurisdiction without permitting the plaintiff to obtain discovery as to jurisdictional facts. In Androutsos v. Fairfax Hospital, 323 Md. 634, 594 A.2d 574 (1991), the Circuit Court had dismissed a negligence action for lack of personal jurisdiction without permitting the plaintiffs to obtain discovery as to the defendant s contacts with Maryland. In finding that the court had abused its discretion, we stated as follows: [O]ur discovery rules, which are broad and compreh ensive in scope, have as their principal objective the required disclosure of all relevan t facts surrounding the litigation before the court. In Baltimore Transit Co. v. Mezzan otti [227 Md. 8, 13-14, 174 A.2d 768, 771 (1961)], we reasoned: If all of the p arties have k nowled ge of all of the relevant, pertinent and non-privileged facts, or the knowledge of the existence or whereabouts of such facts, the partie s should b e able prop erly to prepare their claims and defenses, thereby advancing the sound and expeditio us administration of justice. In order to accomplish the above purposes, the discovery rules are to be liberally construed. And the trial judges, wh o are primarily called upo n to administer said rules, are vested with a reasonable, sound discretion in applying them, wh ich discretion will not be disturbed in the absence of a showing of its abuse. Nowhere is that rationale more applicable than when a fact-specif ic issue, such as whether the court can exercise 2 personal jurisdiction over a non-resident def endant, is presen ted. Androutsos, 323 Md. at 638 , 594 A.2d at 576 (citations omitted). Although the plaintiff in a civil action b ears respon sibility for establishing the defendant s amenability to suit, including personal jurisdiction, a complaint is required to contain only such statements of fact as may be necessary to show the pleader s entitlement to relief. Md . Rule 2-30 3(b). Indeed , it is the defend ant who must raise questions of personal jurisdiction at the pleading stage; under Maryland Rule 2-322(a) an y defense to personal jurisdicti on is w aived if not raise d befo re filing an answ er to the c ompla int. See Hansford v. District of C olumbia , 329 Md. 112, 120, 617 A .2d 1057, 1060 (1 993). Thus, a plaintiff bears no a ffirmative d uty to plead pe rsonal jurisdic tion in a com plaint, and it is inapprop riate ordinarily to grant a motion to d ismiss based solely on the ple adings an d to deny discovery on the issue of amenab ility to suit. See, e.g., Edmond v. United States Postal Serv. Gen. Counsel, 953 F.2d 1398 , 1401 (D.C. Cir. 1992) (Ginsberg, J., concurring ); Comp agnie des Bauxites de Guinee v. L Union Atlantique S.A. D Assurances, 723 F.2d 357, 362 (3rd Cir. 1983); Leasco D ata Proce ssing Equ ip. Corp. v. M axwell, 468 F.2d 1326, 1343 (2d Cir. 1972) ; Surpitski v. Hughes-Keenan Corp., 362 F.2d 254, 25 5-56 (1st Cir. 1966); Hart Holding Co. Inc. v. Drexel Burnham Lambert, Inc., 593 A.2d 535, 53 8 (Del. Ch. 1991 ); Peterson v. Spartan Indus., Inc., 310 N.E.2d 51 3, 516 (N.Y. 197 4). 3 In Edmond, then-Circuit Judge Ruth Bader Ginsburg noted the importance of affording a pla intif f am ple o pportunity to take discovery relevant to personal jurisdiction before dis missing a c laim agains t a defend ant: The ruling on person al jurisdiction o ver Popk in was premature in the absence of any discovery; in keeping with Naartex [Consulting Corp. v. W att, 722 F.2d 779 (D.C. Cir. 1983), cert. denied sub nom. Naartex Consulting Corp. v. Clark, 467 U.S. 1210, 104 S. Ct. 2399, 81 L. Ed. 2d 355 (1984)], that ruling should have abided a fair opportunity for plaintiffs to pursue discov ery keyed to the issue of pers onal jur isdiction . Edmond, 953 F.2d 1398 at 1401. In Surpitksi, the United States Court of Appeals for the First Circuit noted as follows: A plaintiff who is a total stranger to a corporation should not be required, un less he has b een undilig ent, to try such an issue on affidavits without the benefit of full discovery. . . . The condemnation of plaintiff s proposed further activities as a fishing expedition was unw arranted. W hen the fish is identified, and the question is whether it is in the pond, we know no reas on to de ny a plain tiff the c ustom ary license . Surpitski, 362 F.2d at 255-56. The Delaware C ourt of Chan cery addresse d this issue in Hart Holding Co. and stated as follow s: As a plaintiff does have an evidentiary burden, she may not be precluded from attempting to prove that a defendant is subject to the jurisdiction of the court, and may not ordinarily be precluded from reasonable discovery in aid of mounting such proof. Surpitski v. Hughes-Keenan Corp., 362 F.2d 254, 255 (1st Cir. 1966) ; see 5A W right and M iller § 1351 n.33 . Only where the facts alleged in the complaint make any claim of personal jurisdiction over defendant frivolous, might the trial 4 court, in the exercise of its discretionary control over the discovery process, preclude reasonable discovery in aid of establish ing per sonal ju risdiction . Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 708, 102 S. Ct. 2099, 2107, 72 L. Ed. 2d 492 (1982). In Comp agnie des Bauxites de Guinee v. L Union Atlantique S.A. D Assurances, 723 F.2d 357 (3d Cir. 1983), the Court of Appeals for the Third Circuit stated the general rule: Where the plaintiff s claim is not c learly frivolous, the district cou rt should ord inarily allow discovery on jurisdiction in order to aid the plaintiff in disch arging that bur den. 723 F.2d at 362. It is relatively rare but n ot unheard of that a co urt will require a plaintiff to attempt to make out its prima fac ie factual showing of defendant s amenability to suit without the benefit of discov ery. See, e.g., Wyatt v. Kaplan, 686 F.2d 276 (5th C ir. 1982); Daval Steel Products v. M. V. Juraj Dalmatinac, 718 F. Supp. 159 (S.D .N.Y. 198 9); Singer v. Bell, 585 F. Supp. 300 (S.D.N.Y. 1984); Grove Valve & Regulator Co., Inc. v. Iranian Oil Services, Ltd., 87 F.R.D . 93 (S.D.N .Y. 1980) . While in each of these cases the court considered matters outside of the pleading, in each instance the court foun d that plaintiff s assertion of personal jurisdiction lacked that minimal level of plausibility needed to permit discovery to go forward. No purpose is here served by detailing the facts presented in those cases; questions of this kind are inh erently highly particular. But it is notable that, in Wyatt v. Kaplan, in approving the granting of a motion to dismiss under Rule 12(b)(2) where the plaintiff had been denied an opportunity to take depositions, the Fifth Circuit Co urt of Appeals strongly endorsed the practice that ordinarily permits discovery on such a motion: When a defend ant challenges personal jurisdiction, courts generally permit depositions confined to the issues ra ised in the m otion to dismiss. . . . In appropriate cases we will not hesitate to reverse a dismissal for lack of personal 5 jurisdiction, on the gro und that pla intiff was improp erly denie d disco very. . . . Wyatt v. Kaplan, 686 F .2d at 28 3. Hart Holding Co., 593 A .2d at 53 9-40. This case is not one which falls into the category of clearly frivolous. The elusive nature of Internet presence, together with the strong incentives for spammers to conceal their identities, portends that often there will be a dearth of jurisdictional facts in future cases brought under the Commercial Electronic Mail statute. The General Assembly has created a private cause of action to aid Marylan d residents in the escalating battle against unsolicited, deceptive commercial e-mail. The effectiveness of that tool will be diminished if we close the courthou se door to p laintiffs with out providing them the means to uncover facts that would support personal jurisdiction. The e-mails at issue in this case were composed by an entity named windowscasino.com, and sent into M aryland by that entity thro ugh its aff iliate, Travis Thom. I disagree w ith the major ity s conclusion that BSI w as unable to produce any evidence of a connection between Realtime Gaming and KDMS, on the one hand, and windowscasino.com and Thom , on the other, beyond a link leading to an IP address at which individ uals co uld dow nload th e softw are des igned b y KDM S. BSI established three facts casting doubt on respondents contention that windowscasino.com is, at most, a sub-licensee of KDMS software and has no agency relationship with respo ndents. First, the 6 hyperlink http://wincasinoclicks.com/ SmartDownload.asp?affid=13462 permitted Maryland recipients of the e-mail to download KDMS-designed software. Second, the domain name wincasinoclicks.com corresponds to an IP address registered to KDMS and Realtime. Thus, an e-mail recipient who clicked on the hyperlink w ould be downloading KDMS software from a server belonging to KDMS. Third, BSI s expert, Paul A. Wagner, stated in his affidavit that the ?affid=13462" portion of the hyperlink most likely served to identify the affiliate (in this case Travis Thom) who recruited the gambler. Assuming this uncontroverted allegation to be true, a KDMS-owned server was collecting information that could have been used to determine Travis Thom s compensation. The relationship between respondents and windowscasino.com is shrouded in the mists of holding companies, offshore entities, and multi-level licensing arrangements. According to respondents, KDMS has entered into an exclusive license with a master licensee (Panama-based Montana Overseas). Montana Overseas, in turn, sub-licenses the software to many client casinos, among them windowscasino.com (seemingly a trade name of either Angel de la Mañana, a Costa Rican corporation, or ADLM, Ltd., located in the Channel Island of Jersey). Respondents assert that KDMS and Realtime have no direct relationship with their sub-licensees, and exercise no control over the manner in which the sub-licensees advertise their services. Under BSI s theory, on the other hand, the licensing and sub-lice nsing a greem ents are shams , Mon tana O versea s, Ang el de la M añana , and 7 ADLM are mere dummy corporations, and windowscasino.com is a trade name or alter ego of KDMS/Realtime. While the relationships may be exactly as KDMS and Realtime c laim, the three facts detailed above provide some credence to BSI s theory. A KDM S-owned server is providing KDMS-developed software directly to end users. This server s collection of affiliate identification numbers suggests that KDMS and Realtime may have some role in the administration of windowscasino.com s affiliate commission system. These facts alone do not establish an agency relationship between KDMS/Realtime and windo wscas ino.com, but they do render BSI s request for discovery something more than a fishin g expe dition. BSI is entitled to more information regarding the connections among the various entities. Who owns Montana Overseas, Angel de la Mañana, and ADLM? Do these companies have any assets or employees? Who is acting as the house when a gambler bets at windowscasino.com? Do the purported licensing agreements between KDMS/Realtime, Montana Overseas, and Angel de la Mañana or ADLM actually exist, and if so, what do they contain? Is the software licensed for a flat fee, or do KDMS and Realtime receive an additional payment for each dow nload? Wh at aspects of windo wscasino.com s business, if any, are run d irectly by KDM S and R ealtime? D o KDM S and R ealtime w rite advertising copy for windowscasino.com and its affiliates? Answers to the abov e questions might estab lish that KD MS an d Realtime merely develop software, provide some incidental hosting services, and can in no way be deemed 8 to have purposefully sent Travis Thom s e-mails into Maryland. But they might also establish that the advertisement and the strategy for e-mailing it in bulk were the direct creations of KDMS and Realtime, hiding behind multiple layers of dummy corporations and sham licensees in an attempt to disguise their operation of a spam -dependent business. I respec tfully disse nt. Chief Judge B ell and Judg e Harrell ha ve authoriz ed me to state that they join in this dissenting opinion. 9
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