Lapin v. EverQuote Inc et al

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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JOSHUA A LAPIN
Plaintiff,
vs.
EVERQUOTE INC, a/k/a EverQuote,
and JOHN DOE SENDER, d/b/a
BuzzBarrelReview.com, d/b/a
dzlosurverys.com, d/b/a
emailsjobsdelivered.com, d/b/a
Entirelybelieve.com, d/b/a
JobsDeliver.com, d/b/a
expectcarecare.com, d/b/a
JobSharkNL.com, d/b/a
NationalShopperSurvey.com, d/b/a
NationalSurveysOnline.com, d/b/a
exigentmediagroup.com, d/b/a
enrichedtechnologies.com, d/b/a
ConsumerDigitalSurvey.com, d/b/a
drivingmarketinggroup.com, d/b/a
surveyandgetpaid.com, d/b/a
tummyheadmediagroup.com, d/b/a
thebestcreditcheck.com, d/b/a
thefreetree.co, d/b/a dlzoffers.com,
d/b/a nationaldigitalsurvey.com,
d/b/a dealzingo.com, d/b/a
rumorfox.com,
Defendants.
4:22-CV-04058-KES
ORDER DISMISSING LAPIN’S CLAIMS
AGAINST DEFENDANT EVERQUOTE
AND DENYING LAPIN’S MOTION TO
RECONSIDER
Pending before the court is defendant EverQuote’s motion to dismiss for
lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2) and
failure to state a claim under Rule 12(b)(6). Docket 13. EverQuote also argues a
federal statute preempts, plaintiff, Joshua A Lapin’s, state-law claims. Docket
14 at 2-3. 	Lapin resists these arguments. Docket 19. Lapin also moves the
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court to reconsider its previous order denying him the ability to file documents
electronically. See Docket 11; Docket 18.
FACTUAL BACKGROUND
Lapin alleges the following:
Lapin is a full-time traveling “digital nomad” who moves from place to
place, generally internationally, in 30-day cycles, without a permanent
residence in or out of the United States. See Docket 1 ¶ 2. Lapin received 108
commercial emails advertising auto insurance. See id. ¶¶ 5-7. Lapin alleges
defendant “John Doe Sender” sent some of these emails to Lapin but does not
know the identity of the other senders of the emails. See id. ¶¶ 9, 29. Lapin
acknowledges EverQuote did not send these emails, but alleges EverQuote is
the advertiser featured in them. Id ¶ 28.
EverQuote has its principal place of business in Massachusetts and is
incorporated in Delaware. Id. ¶ 3. EverQuote “is in the business of generating
[auto] insurance leads for [auto] insurance companies. Id. It is registered to do
business in the State of South Dakota and has a registered agent in South
Dakota. See id. ¶ 40, 45. On its website, it advertises South Dakota specific
auto insurance, detailing the state’s requirements. See id. ¶ 40
Lapin alleges 108 claims against John Doe Sender and EverQuote for
various violations of SDCL § 37-24-47. For example, Lapin alleges some of the
emails have a third-party domain name without the third-party’s permission.
Docket 1 ¶ 28. Lapin also alleges that some of the emails’ header information is
misleading or false because some of the emails have untraceable domain
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names and some of the “to” field in the emails incorrectly indicate Lapin’s
email. Id. ¶ 29. He further alleges the “from” fields of the emails he received
improperly failed to identify EverQuote as the advertiser of the emails and
failed to identify the senders of the emails. Id. ¶ 30. Based on these alleged
violations, Lapin seeks the statutory liquidated damages amount of $1,000 per
email, as well as reasonable costs associated with filing and maintaining this
action and for service of process. See Docket 1 ¶ 37; SDCL § 37-24-48.
DISCUSSION
The court first considers whether it has personal jurisdiction over
EverQuote, because without personal jurisdiction, the court lacks authority
over the defendant. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577
(1999)(“[J]urisdiction generally must precede merits in dispositional order[.]”);
Kangas v. Kieffer, 495 Fed.App’x. 749, 750 (8th Cir. 2012) (“A court may not
resolve a case on its merits unless the court has jurisdiction over both the
claims and the parties in suit.”).
I. 	Personal Jurisdiction
“To survive a motion to dismiss for lack of personal jurisdiction, a
plaintiff must plead ‘sufficient facts to support a reasonable inference that the
defendant[ ] can be subjected to jurisdiction within the state.’ ” Creative Calling
Sols., Inc. v. LF Beauty Ltd., 799 F.3d 975, 979 (8th Cir. 2015) (quoting K–V
Pharm. Co. v. J. Uriach & CIA, S.A., 648 F.3d 588, 591–92 (8th Cir. 2011)
(alteration in original)). The plaintiff bears the burden to prove the court has
personal jurisdiction. Fastpath, Inc. v. Arbela Techs. Corp., 760 F.3d 816, 820
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(8th Cir. 2014). The court must view the evidence in the light most favorable to
the plaintiff and resolve factual conflicts in the plaintiff’s favor. Id.
“A federal court may assume jurisdiction over a defendant in a diversity
action if the forum State’s long-arm statute permits the exercise of personal
jurisdiction and that exercise is consistent with the Due Process Clause of the
Fourteenth Amendment.” Creative Calling, 799 F.3d at 979. South Dakota’s
long-arm statute confers jurisdiction to the fullest extent allowed by the Due
Process Clause, and thus the court need only determine whether the assertion
of personal jurisdiction comports with due process under the Fourteenth
Amendment. See SDCL § 15-7-2(14); see also Larson Mfg. Co. of S.D. v. Conn.
Greenstar, Inc., 929 F. Supp. 2d 924, 926 (D.S.D. 2013) (citing Dakota Indus.,
Inc. v. Ever Best Ltd., 28 F.3d 910, 915 (8th Cir. 1994)).
The Due Process Clause of the Fourteenth Amendment to the United
States Constitution prohibits a state from exercising personal jurisdiction over
a nonresident defendant unless that defendant has “minimum contacts” with
the state such that maintaining the lawsuit “does not offend traditional notions
of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310,
316 (1945) (internal quotation marks omitted). The court must consider five
factors to evaluate whether a defendant’s actions sufficiently support personal
jurisdiction:
(1) the nature and quality of the contacts with the forum
state; 	(2) 	the 	quantity 	of 	those 	contacts; 	(3) 	the
relationship of those contacts with the cause of action;
(4) [South Dakota]’s interest in providing a forum for its
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residents; and (5) the convenience or inconvenience to
the parties.
Myers v. Casino Queen, Inc., 689 F.3d 904, 911 (8th Cir. 2012). The third factor
distinguishes between specific and general jurisdiction. Johnson v. Arden, 614
F.3d 785, 794 (8th Cir. 2010).
The first three factors carry significant weight, while the final two are less
important. See Dever v. Hentzen Coatings, Inc., 380 F.3d 1070, 1074 (8th Cir.
2004). The court should not mechanically apply the test, as this determination
“is not readily amenable to rigid rules that can be applied across the entire
spectrum of cases.” Viasystems, Inc., v. EBM-Papst St. Georgen GmbH & Co.,
KG, 646 F.3d 589, 596 (8th Cir. 2011) (quoting Anderson v. Dassault Aviation,
361 F.3d 449, 452 (8th Cir. 2004) (internal quotations omitted)).
Here, Lapin admits that there is no general personal jurisdiction, so the
court need only determine whether the court can exercise specific jurisdiction
over EverQuote. See Docket 19 at 2. For a court to exercise specific jurisdiction
over the defendant, there must be a relationship between the forum, cause of
action, and the defendant. Helicopteros Nacionales de Columbia, S.A. v. Hall,
466 U.S. 408, 414 (1984). The defendant must purposefully direct its activities
towards the forum state. See Walden v. Fiore, 571 U.S. 277, 285 (2014).
Lapin argues that the court has jurisdiction over EverQuote based on the
stream of commerce theory. See Docket 19 at 4-5. The Eighth Circuit has
explained that “[p]ersonal jurisdiction may be found where a seller uses a
distribution network to deliver its products into the stream of commerce with
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the expectation that the products will be purchased by consumers in the forum
state.” Stanton v. St. Jude Med., Inc., 340 F.3d 690, 694 (8th Cir. 2003). The
stream of commerce analysis does not replace the five-factor test, but instead is
“an overlay through which the five factors, or constitutional due process, may
be viewed.” Estate of Moore v. Carroll, 159 F.Supp. 3d 1002, 1012-13 (D.S.D.
2016) (collecting Eighth Circuit cases).
Before further discussing the stream of commerce doctrine, the court will
address whether this doctrine is applicable to the instant case. Lapin’s cause of
action is not a products liability case. See Docket 1. Instead, Lapin claims
violations of a state law that imposes certain requirements on commercial e-
mail advertisements. See SDCL § 37-24-47. Lapin argues that EverQuote is an
advertiser under § 37-24-41(1), and that EverQuote placed its e-mail
advertisements with various senders (John Doe or “various unknown senders”)
who then sent them in violation of § 37-24-47. Docket 1 ¶¶ 29, 35. Essentially,
he argues that EverQuote is like a manufacturer who places its product with a
distributor, who then distributes the product.
At first glance, the stream of commerce analogy seems inept here,
because according to Lapin, the actual advertisement that EverQuote placed in
the stream of commerce is not itself the “defective product.” In other words,
under Lapin’s theory, the bodies of the emails do not themselves violate SDCL
§ 37-24-47, but rather the way the senders sent the advertisements to him
forms the basis for liability. See Docket 1 ¶¶ 29, 35 (describing the violations
as rooted in the misleading “To” and “From” domains of the emails sent by
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either Doe or various unknown senders). Thus, applying the stream of
commerce doctrine to this situation may appear akin to applying it to a case
where the plaintiff sues a defendant manufacturer of a product, not because
the product was defective per se, but because its seller misled the plaintiff
regarding the product’s price. Indeed, “[c]ourts typically do not extend the
stream of commerce theory beyond the products liability context or beyond a
dispute pertaining to the actual product.” Guinness Import Co. v. Mark VII
Distribs., Inc., 971 F.Supp. 401, 409 (D. Minn. 1997), aff’d, 153 F.3d 607 (8th
Cir. 1998).
But here, under South Dakota law, an advertiser is liable for its email
advertisements. See SDCL §§ 37-24-41, 37-24-47. Under SDCL § 37-24-41(a),
South Dakota defines “advertiser” as “a person or entity that advertises
through the use of commercial e-mail advertisements[.]” Under SDCL § 37-24-
47, the law sets forth the circumstances in which commercial e-mail
advertisements are prohibited, and states, “[n]o person may advertise in a
commercial e-email advertisement either sent from South Dakota or sent to a
South Dakota electronic mail address under any of the [listed]
circumstances[.]” Considering these provisions together, because the law
expressly contemplates an advertiser as a person or entity who advertises
through commercial e-mails and because the prohibition of certain e-mail
advertisements applies to any person who “advertise[s] in a commercial e-mail
advertisement,” it follows that South Dakota has deemed the advertiser liable
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for its commercial e-mails, even if the advertiser is not the one who sent the
emails.
It may be true that this case does not look like the traditional case to
which courts typically apply the stream of commerce analysis. See Guinness,
971 F.Supp. at 409. But the Eighth Circuit has repeatedly explained that
courts should not mechanically apply personal jurisdiction tests, nor can the
analysis be rigid. See, e.g., Viasystems, 646 F.3d at 596; Pangaea, Inc., v.
Flying Burrito LLC, 647 F.3d 741, 746 n.4 (8th Cir. 2011); Land-O-Nod Co. v.
Bassett Furniture Indus., Inc., 708 F.2d 1338, 1340 (8th Cir. 1983) (noting that
the five factors “do not provide ‘a slide rule by which fundamental fairness can
be ascertained with mathematical precision.’ ” (quoting Toro Co. v. Ballas
Liquidating Co., 572 F.2d 1267, 1270 (8th Cir. 1978)). South Dakota’s law
makes advertisers liable for non-compliant e-mail advertisements, even if the
advertisers themselves are not the one who sent the emails. Thus, just as a
manufacturer places a defective product into a stream of commerce with a
distributor, and such products eventually make their way to an end-user who
can sue the manufacturer for any defects, advertisers of commercial emails
place its emails into the stream of commerce with various senders, who then
send out such advertisements to recipients who can sue such advertisers for
non-compliant emails. The court finds it appropriate to analyze personal
jurisdiction using the stream of commerce theory.
The court now turns to this theory of personal jurisdiction. In Worldwide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 295-96 (1980), the Supreme
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Court held that the mere fact that a defendant can foresee the potential for a
plaintiff suffering an injury in the forum state is insufficient to establish
personal jurisdiction. There, the Court found that an Oklahoma court could
not exercise personal jurisdiction over a New York-based automobile retailer
and its wholesale distributor when the defendants’ only connection to
Oklahoma was “the fact that an automobile sold in New York to New York
residents became involved in an accident in Oklahoma.” Id. at 287, 295. The
Court concluded that the relevant inquiry is whether “the defendant’s conduct
and connection with the forum State are such that he should reasonably
anticipate being haled into court there.” Id. at 297.
Following Worldwide Volkswagen, the Supreme Court again addressed
the stream of commerce doctrine in Asahi Metal Ind. Co., Ltd. v. Superior Court
of California, Solano Cty., 480 U.S. 102 (1987). The court found that a
California state court did not have personal jurisdiction over a Japanese
manufacturer, but the Court was “sharply divided” about the applicability of
the stream of commerce theory. Charles A. Wright & Arthur R. Miller, Fed.
Prac. & Proc. Civ. § 1067.4 (4th ed. 2022). In Justice O’Connor’s opinion joined
by three other justices, she opined that “[t]he placement of a product into the
stream of commerce, without more, is not an act of the defendant purposefully
directed toward the forum State[,]” but rather some “[a]dditional conduct”
indicating “an intent or purpose to serve the market in the forum State” was
also necessary. See Asahi, 480 U.S. at 112. This “additional conduct” may
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include “an intent or purpose to serve the market in the forum State” such as
“designing the product for the market in the forum State[.]” Id.
Justice Brennan’s concurrence, joined by three others, ultimately agreed
with Justice O’Connor in finding that a California state court lacked personal
jurisdiction over the Japanese manufacturer, but did not agree with Justice
O’Connor’s stream of commerce discussion. See id. at 116-17, 121. Justice
Brennan argued that “[a]s long as a participant . . . is aware that the final
product is being marketed in the forum State, the possibility of a lawsuit there
cannot come as a surprise[,]” and thus Justice Brennan rejected the idea that
there must be a showing of additional conduct. See id.
Finally, Justice Stevens wrote a concurrence in which he argued the
stream of commerce discussion was unnecessary to decide the case, and that
the court should consider “the volume, the value, and the hazardous character”
of the product in question. See id. at 121-22. Thus, Justice Stevens did not join
either Justice O’Connor’s or Justice Brennan’s view on the correct approach to
a stream of commerce analysis.
Most recently in J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873
(2011), the Supreme Court again failed to present a clear majority view on how
to approach a stream of commerce analysis. In Nicastro, the plaintiff sued a
British manufacturer in New Jersey after the plaintiff injured himself using the
manufacturer’s metal-shearing machine. See id. at 878 (Kennedy, J. plurality).
The British manufacturer had attended annual trade conventions in the United
States, but it had never attended one in New Jersey. Id. Justice Kennedy,
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writing for a four-member plurality, found that although the manufacturer
“directed marketing and sales efforts at the United States[,]” it had not
“purposefully directed” conduct at New Jersey. See id. at 886. Justice Kennedy
characterized personal jurisdiction as a function of the “power of a sovereign”
to resolve disputes and enter judgments, and thus opined that “[t]he principal
inquiry . . . is whether the defendant’s activities manifest an intention to
submit to the power of a sovereign.” See id. at 882. Thus, Justice Kennedy
opined that New Jersey lacked personal jurisdiction over the case. Id. at 887.
Justice Breyer, joined by Justice Alito, agreed that the New Jersey court
lacked personal jurisdiction, but rejected Justice Kennedy’s approach as being
too rigid in light of modern-day advances in the economy. See id. at 887, 890
(Breyer, J. concurring). Justice Breyer instead focused on the fact that the
record showed no regular course of sales in New Jersey, and that there was not
“something more” than just the mere foreseeability of the product ending up in
New Jersey, such as “special state-related design, advertising, advice,
marketing, or anything else.” See id. at 888-89.
Justice Ginsburg, joined by Justices Sotomayor and Kagan, dissented,
and argued New Jersey did have personal jurisdiction over the manufacturer
because the manufacturer had purposefully targeted the entire United States
market, and thus New Jersey was not a random place of adjudication, but
rather “a result of the U.S. connections and distribution system that [the
manufacturer] deliberately arranged.” See id. at 893, 898 (Ginsburg, J.
dissenting). Justice Ginsburg concluded that because its actions targeted the
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United States, it purposefully availed itself to the United States and thus it
would be fair to subject it to personal jurisdiction in New Jersey. See id. at 905.
After reviewing these cases, the court notes that at least a majority of justices
have agreed—twice—that knowledge that a product placed in the stream of
commerce could end up in a forum state plus “something else” is sufficient to
confer on the forum state court personal jurisdiction. See Asahi, 480 U.S. at
112, 116-17, 121; Nicastro, 564 U.S. at 888-890, 898, 905.
Here, Lapin’s submissions show that EverQuote specifically markets
“Cheap Car Insurance in South Dakota” and provides specific auto insurance
requirements in South Dakota. See Docket 1 ¶ 40. Additionally, Lapin alleges,
and EverQuote implicitly concedes, that EverQuote is registered to do business
in South Dakota and maintains a registered agent in South Dakota. See Docket
1 ¶¶ 40, 45; Docket 21 at 10-11 (contesting only the significance of EverQuote
having a registered agent in South Dakota). EverQuote had every reason to
believe its email advertisements would end up in South Dakota, because it
purposefully marketed its product on its website for South Dakota specific car
insurance and registered itself as a business in South Dakota. Because it
purposefully availed itself to do business in South Dakota, the court finds
EverQuote has minimum contacts with South Dakota under a stream of
commerce analysis.
The Eighth Circuit’s decision in Barone v. Rich Bros. Interstate Display
Fireworks Co., 25 F.3d 610 (8th Cir. 1994) supports this conclusion. In Barone,
the court held that the state of Nebraska could exercise specific personal
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jurisdiction over a foreign fireworks manufacturer, when the manufacturer sold
its fireworks to local distributors who later sold the fireworks in Nebraska. See
id. at 611-13, 15. In doing so, the court emphasized that the manufacturer
“certainly benefited from the distribution efforts” and that “[m]ore than
reasonable foreseeability is at stake here[,]” because the manufacturer
“purposefully reaped the benefits of . . . Nebraska’s [laws][.]” See id. at 613, 15.
Here, EverQuote’s position is similar to the foreign fireworks
manufacturer in Barone: EverQuote placed its advertisements with various
senders, knowing (or at the very least EverQuote should have known) that its
advertisements would be read in South Dakota. 	Because EverQuote has
specifically tailored its insurance information to South Dakota residents and
registered itself to do business in South Dakota, it has “purposefully reaped the
benefits of . . . [South Dakota]’s [laws][.]” See id; see Docket 1 ¶¶ 40.
EverQuote resists this conclusion for several reasons. First, EverQuote
argues that Lapin cannot properly identify the party who sent the commercial
e-mails to him. See Docket 21 at 8-9. EverQuote points out that Lapin did not
name the sender of the emails in his original complaint, nor seek to amend his
complaint, and thus the court should “disregard" the new allegations in Lapin’s
response (Docket 19) about Flex Marketing Group LLC being the real identity of
“John Doe.” See Docket 21.
The court need not consider Lapin’s new allegations about Flex
Marketing Group LLC, because Lapin’s allegations in his original complaint are
sufficient for the court after considering all reasonable inferences in favor of
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Lapin. See Fastpath, 760 F.3d at 820. This is especially the case given that
Lapin filed this case pro se. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Here, Lapin alleged that EverQuote is “in the business of generating [auto]
insurance leads for [auto] insurance companies” (alterations in original).
Docket 1 at 2. He also alleged that EverQuote was the ultimate advertiser of the
commercial emails he received. Id. at 175. Although he alleged he does not
know the identities of the sender, the court finds it reasonable to infer that
regardless of who actually sent the emails, EverQuote enlisted some entity to
do so. If EverQuote did not send the emails, someone had to have, and that
someone would not have had access to EverQuote’s advertisements except for
EverQuote giving them the access. Thus, the court rejects EverQuote’s first
argument that suggests the court must know the identity of the senders of
these emails.
EverQuote next cites to a Tenth Circuit decision, XMission, L.C. v. Fluent
LLC, 955 F.3d 833 (10th Cir. 2020), arguing it is a “strikingly similar case” that
requires the court to find allegations that EverQuote targeted South Dakota to
fail. Docket 21 at 10. In XMission, the defendant, Fluent, was an internet
service provider who provided email hosting services. See 955 F.3d at 837. The
plaintiff alleged that Fluent had sent over 10,000 emails to customers in the
forum state, all in violation of the CAN-SPAM Act, 15 U.S.C. §§ 7701 to 7713;
18 U.S.C. § 1037, which is the same federal law EverQuote alleges preempts
Lapin’s instant case. See XMission, 955 F.3d at 837. But unlike here, the court
in XMission noted that the defendant had never been registered to do business
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in the forum state, nor had it “undertaken to market or advertise in [the forum
state] or to target or direct any internet marketing directly to [the forum state]
residents.” See id. at 838. Additionally, because Xmission merely sent emails to
a national audience rather than advertised in its emails, the court did not
engage in a stream of commerce type analysis. See id. at 841-50. Thus,
XMission is distinguishable and does not alter the court’s analysis.
The decision in Toro Co. v. Advanced Sensor Tech., Inc., No. 08-248, 2008
WL 2564336 at *3-4 (D. Minn. June 25, 2008) similarly does not alter the
court’s decision. In Toro, the plaintiff, The Toro Company, sued Advanced
Sensor Technology, Inc. (AST), for false advertising, deceptive trade practices,
consumer fraud, and intentional interference with prospective economic
advantage. See id. at *1. Toro argued that AST had maintained a website that
was accessible to the forum state and sent over 300 emails to individuals in
Minnesota as part the defendant’s nationwide email distribution list, and thus
had sufficient minimum contacts to justify personal jurisdiction. See id. at *3.
The court rejected this argument, observing that AST had not targeted these
emails specifically to Minnesota. See id. at *3-4. Furthermore, the court in Toro
did not discuss anything about AST marketing its products specifically to
Minnesota residents. The facts in Toro did not readily bring up a stream of
commerce analysis, and thus the court did not conduct one. See id. at *3-4.
Here, unlike in Toro, EverQuote specifically marketed its auto insurance to
South Dakota residents on its website. It placed its advertisements with
senders, hoping and knowing the emails would reach South Dakota residents.
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Furthermore, the court views this case through a stream of commerce lens,
distinguishing it from Toro. Thus, Toro does not aid Everquote in this case.
Having concluded there is sufficient minimum contacts, the court now
considers whether Lapin’s case “arise[s] out of or relate[s] to” such contacts.
See Myers, 689 F.3d at 912 (quoting Burger King Corp. v. Rudzewicz, 471 U.S.
462, 472 (1985)). The “arise out of or relate to” requirement is met if “the
defendant purposefully directs its activities at the forum state and the litigation
‘result[s] from injuries . . . relating to [the defendant’s] activities [in the forum
state].’ ” Id. at 913 (emphasis added) (alt. in original) (quoting Steinbuch v.
Cutler, 518 F.3d 580, 586 (8th Cir. 2008)). This requirement is “flexible” based
on the totality of circumstances. See id.; K-V Pharm., 648 F.3d at 592-93. It
does not require proximate causation between the contacts and the cause of
action. Downing v. Goldman Phipps, PLLC, 764 F.3d 906, 913 (8th Cir. 2014).
Here, Lapin’s action is based on e-mail advertisements that EverQuote
placed into the stream of commerce and that advertise auto insurance. See,
e.g., Docket 1 at 5-40; 42-118.1 Although the e-mail advertisements do not
address South Dakota specific car insurance, EverQuote markets South
Dakota car insurance on its website. See Docket 1 ¶ 40. Thus, the court finds
Lapin’s claims to be sufficiently related to EverQuote’s contact with South
Dakota.
1 For purposes of clarity, the court cites the page numbers rather than
paragraph numbers in this citation because Lapin’s complaint inadvertently
has two paragraph 6’s, 7’s, and 8’s, and these e-mail advertisements are
located in these paragraphs.
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EverQuote argues that the existence of EverQuote’s registered agent in
South Dakota is insufficiently related to Lapin’s instant claims. See Docket 21
at 10-11. But this observation does nothing to undermine the inherent
connection between EverQuote’s targeted advertising on its website for South
Dakota specific car insurance and its commercial emails advertising car
insurance. And as the Eighth Circuit has observed, the “relating to” prong of
specific personal jurisdiction does not require proximate causation, but rather
a flexible inquiry based on the totality of the circumstances. See Myers, 689
F.3d at 912; K-V Pharm., 648 F.3d at 592-93; Downing, 764 F.3d at 913.
In summary, the court concludes that the first three—and most
important—factors of the personal jurisdiction test support a finding of
personal jurisdiction: the nature and quality of the contacts with the forum
state, the quantity of those contacts, and the relationship of those contacts
with the cause of action, all counsel in favor of finding personal jurisdiction.
See Myers, 689 F.3d at 911; Dever, 380 F.3d at 1073-74. As discussed above,
the stream of commerce theory explains the nature and extent of EverQuote’s
purposeful availment of South Dakota’s market. And the court finds these
contacts sufficiently related to Lapin’s cause of action in this case.
The court also considers the fourth and fifth factors. The fourth factor
requires the court to consider South Dakota’s interest in providing a forum for
its residents, and the fifth factor requires the court to consider the convenience
or inconvenience to the parties. See Myers, 689 F.3d at 911. The fourth factor
cuts in favor of personal jurisdiction, because South Dakota’s laws regulating
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commercial e-mails, and specifically providing for private causes of action,
show that South Dakota has a legitimate interest in providing a forum for its
residents to litigate these claims. See SDCL §§ 37-24-47; 37-24-48. The fifth
factor does not support a finding of personal jurisdiction, given that neither
Lapin nor EverQuote are based out of South Dakota. See Docket 1 ¶ 2 (showing
Lapin describes himself as a “full-time traveling ‘digital nomad[,]’ who moves
from place to place, generally internationally, in 30-day cycles, without a
permanent residence in or out of the United States[.]”); Docket 15 at 2
(“EverQuote is incorporated in the State of Delaware, with a principal place of
business in Cambridge, Massachusetts.”). But although EverQuote is not
based out of South Dakota, it nonetheless is registered to do business in South
Dakota and thus the court finds it is not overly burdensome for it to litigate a
claim here.
Based on these five factors and the above-discussion, the court
concludes that Lapin has made a sufficient showing that the court has
personal jurisdiction over EverQuote. The court also finds that exercising
personal jurisdiction over EverQuote is fundamentally fair, because as
explained above, EverQuote has purposefully availed itself of South Dakota’s
market by placing e-mail advertisements with various senders, knowing and
hoping those emails would reach South Dakota residents, specifically by
advertising its car insurance options to South Dakota drivers, and by having a
registered agent in South Dakota. See Burger King, 471 U.S. at 477-78 (noting
personal jurisdiction inquiry requires fairness to out-of-state defendant). Thus,
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the court denies EverQuote’s Rule 12(b)(2) motion for lack of personal
jurisdiction. The court now evaluates EverQuote’s Rule 12(b)(6) motion for
failure to state a claim.
II. 	Failure to State a Claim
EverQuote moves under Federal Rule of Civil Procedure 12(b)(6) for
dismissal because Lapin failed to state a claim. Under Rule 12(d) “[i]f, on a
motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are
presented to and not excluded by the court, the motion must be treated as one
for summary judgment under Rule 56.” 	Fed. R. Civ. Proc. 12(d); see also
Sorace v. United States, 788 F.3d 758, 767 (8th Cir. 2015).
Ordinarily, when a district court decides to treat a Rule 12(b)(6) motion
as a summary judgement motion, the court must “notify litigants . . . so that
the litigants may respond to the issue the court is weighing.” Layton v. United
States, 919 F.2d 1333, 1335 (8th Cir. 1990). But Van Leeuwen v. U.S. Postal
Service, 628 F.2d 1093, 1095 (8th Cir. 1980), provides an exception to this
general rule: when both parties “submit[] outside the pleadings affidavits and
exhibits which [the non-moving party] underst[ands] that the District Court
accept[s] for consideration,” then the district court is not required to give notice
to the parties. That is because the parties were “possibly on constructive notice
that the court would treat the motion as one for summary judgment.” Simes v.
Huckabee, 354 F.3d 823, 826 n.2 (8th Cir. 2004).
Here, both Lapin and EverQuote attached affidavits for the court to
consider when determining whether Lapin failed to state a claim. See Docket
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16, 17, and 20. Thus, both were on constructive notice that the court will treat
it as a motion for summary judgment.2
Summary judgment is appropriate if the movant “shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). The moving party can meet its burden
by presenting evidence that there is no dispute of material fact or that the
nonmoving party has not presented evidence to support an element of its case
on which it bears the ultimate burden of proof. Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986). The moving party must inform the court of the basis
for its motion and also identify the portions of the record that show there is no
genuine issue in dispute. Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir.
1992) (citation omitted).
To avoid summary judgment, “[t]he nonmoving party may not ‘rest on
mere allegations or denials, but must demonstrate on the record the existence
of specific facts which create a genuine issue for trial.’ ” Mosley v. City of
Northwoods, 415 F.3d 908, 910 (8th Cir. 2005) (quoting Krenik v. Cnty. of Le
Sueur, 47 F.3d 953, 957 (8th Cir. 1995)). Summary judgment “must be denied
if on the record then before it the court determines that there will be sufficient
evidence for a jury to return a verdict in favor of the nonmoving party.” Krenik
2 The court recognizes Lapin is pro se and thus realizes these complicated
procedural moves are not as readily understandable to him. As the court will
more fully explain, the court does not need to rely on any of EverQuote’s
affidavits in deciding this issue, and thus only relies on the affidavit and
exhibits Lapin submitted in Docket 20.
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47 F.3d at 957. It is precluded if there is a genuine dispute of fact that could
affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986). When considering a summary judgment motion, the court views
the facts and the inferences drawn from such facts “in the light most favorable
to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587-88 (1986) (quoting United States v. Diebold, Inc., 369
U.S. 654, 655 (1962)).
South Dakota law governs Lapin’s substantive legal claims, and the court
is bound by the decisions of South Dakota’s Supreme Court when interpreting
South Dakota law. See Progressive Northern Ins. Co. v. McDonough, 608 F.3d
388, 390 (8th Cir. 2010). If the South Dakota Supreme Court has not decided
an issue, the court must attempt to predict how the South Dakota Supreme
Court would resolve the issue. See id.
Lapin sues EverQuote in 108 counts under SDCL § 37-24-47 and § 37-
24-48. Docket 1. SDCL § 37-24-47 provides:
No 	person 	may 	advertise 	in 	a 	commercial 	e-mail
advertisement either sent from South Dakota or sent to
a South Dakota electronic mail address under any of
the following circumstances:
(1) 	The 	e-mail 	advertisement 	contains 	or 	is
accompanied 	by 	a 	third-party’s 	domain 	name
without the permission of the third party;
(2) 	The 	e-mail 	advertisement 	contains 	or 	is
accompanied 	by 	falsified, 	misrepresented, 	or
forged header information;
(3) The e-mail advertisement has a subject line
that a person knows would be likely to mislead a
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recipient, 	acting 	reasonably 	under 	the
circumstances, about a material fact regarding
the contents or subject matter of the message.
SDCL § 37-24-48 provides a private cause of action for individuals who receive
emails that violate SDCL § 37-24-47. EverQuote argues that Lapin cannot
succeed in his claims because the statute only applies if the commercial e-mail
advertisement was “sent to a South Dakota electronic mail address[,]” and
Lapin’s email is not a “South Dakota electronic mail address.” See SDCL § 37-
24-47; Docket 14 at 6. South Dakota defines a “South Dakota electronic mail
address” as any of following:
(a) An e-mail address furnished by an electronic mail
service 	provider 	that 	sends 	bills 	for 	furnishing 	and
maintaining that e-mail address to a mailing address in
this state;
(b) 	An 	e-mail 	address 	ordinarily 	accessed 	from 	a
computer located in this state; or
(c) An e-mail address furnished to a resident of this
state[.]
SDCL § 37-24-41(14). Lapin has submitted no allegations that his e-mail
address is furnished by an electronic mail service provider that sends bills for
furnishing and maintaining that e-mail address to a mailing address in South
Dakota. See Docket 1. Thus, the court finds § 37-24-41(14)(a) does not apply.
Lapin also has alleged that he is a “full-time traveling ‘digital nomad[,]’ who
moves from place to place, generally internationally, in 30 day cycles, without a
permanent residence in or out of the United States[.]” See id. at 2. Thus, the
court finds § 37-24-41(14)(b) does not apply either. Lapin’s ability to survive
summary judgment turns on whether the court finds, construing Lapin’s
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allegations in his well-pleaded complaint as true and making any reasonable
inferences from those facts in the light most favorable to him, that he can show
that § 37-24-41(14)(c) applies—namely, that he is a “resident” of South Dakota.
When interpreting a statute, the South Dakota Supreme Court looks to
the statute’s plain language and structure. Magellan Pipeline Co. v. S.D. Dep’t of
Revenue & Reg., 837 N.W.2d 402, 404 (S.D. 2013). The South Dakota
legislature has directed that “[w]ords are to be understood in their ordinary
sense” unless the statute otherwise defines a word. SDCL § 2-14-1; see also
Scheller v. Faulkton Area Sch. Dist. No. 24-3, 731 N.W.2d 914, 916 (S.D. 2007).
Here, SDCL § 37-24-41 fails to define “resident” for purposes of
determining whether Lapin has a South Dakota electronic mail address. Thus,
the court turns to the ordinary sense of the word “resident.” SDCL § 2-14-1.
Black’s Law Dictionary defines “resident” in a few ways. First, it defines a
resident as “[s]omeone who lives permanently in a particular place[.]” Resident,
BLACK ’S LAW DICTIONARY (11th ed. 2019). It also defines it as “[s]omeone who has
a home in a particular place[,]” and “[s]omeone who is staying in a particular
hotel, apartment building, etc.” Id. Similarly, Merriam-Webster’s Collegiate
Dictionary defines “resident” as “one who resides in a place.” Resident,
MERRIAM -WEBSTER ’S COLLEGIATE DICTIONARY (10th ed. 1999). In turn, it defines
“reside” as “to dwell permanently or continuously.” Reside, M ERRIAM -WEBSTER ’S
COLLEGIATE DICTIONARY (10th ed. 1999). Importantly, all of these definitions of
“resident” contemplate some form of physical presence.
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The South Dakota Supreme Court has also interpreted “resident” in the
context of personal jurisdiction for divorce proceedings to require some form of
physical presence, despite the relevant statute failing to define resident. See,
e.g., Parsley v. Parsley, 734 N.W.2d 813, 818 (S.D. 2007). In Parsley, the court
had to determine whether the South Dakota trial court had personal
jurisdiction over a divorce action. See id. The relevant statute, SDCL § 25-4-30,
without defining “resident,” provided “[t]he plaintiff in an action for divorce or
separate maintenance must, at the time the action is commenced, be a resident
of this state, or be stationed in this state while a member of the armed
services.” The South Dakota Supreme Court adopted a the following language
about residency: “[I]t follows that the residence must be an actual residence as
distinguished from a temporary abiding place . . . .” Parsley, N734 N.W.2d at
818 (emphasis added). By distinguishing actual residence from a temporary
abiding place, the South Dakota Supreme Court made clear that it views
residence as being the location where someone lives. The South Dakota
Supreme Court affirmed this understanding in Rush v. Rush, 866 N.W.2d 556,
561 (S.D. 2015). In both Parsley and Rush, the court found that the relevant
individuals were residents for purposes of SDCL § 25-4-30, and in both cases
the individuals had significant physical presence in the state. See Parsley, 734
N.W.2d at 818 (individual had lived in home for over three years); Rush, 866
N.W.2d at 561 (individual had physically moved to South Dakota and found
local employment). These two cases underscore that ordinarily, the term
resident refers to where one lives.
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Viewing Lapin’s complaint and submissions in the light most favorable to
him, the court finds that he is not a South Dakota resident. By his own
admission, Lapin is a “full-time traveling ‘digital nomad[,]’ who moves from
place to place, generally internationally, in 30 day cycles, without a permanent
residence in or out of the United States[.]” Docket 1 ¶ 2 (emphasis added). He
further admits, “[He] was present physically outside of the State of South
Dakota at most times material[.]” Id. ¶ 38 (emphasis added). Lapin does not
have any meaningful physical presence in South Dakota, and thus he is not a
South Dakota resident.
Lapin resists this conclusion and instead argues that he is a legal
resident of South Dakota, which he argues suffices for purposes of his claims.
See Docket 19 at 6-9. Lapin first cites the South Dakota Department of Public
Safety’s Driver’s License requirements for full-time travelers, which lists out the
steps he had to take to get a South Dakota’s driver’s license. Id. at 7. As part of
this requirement, he had to fill out a “Residency Affidavit,” which in turn
required him to affirm that South Dakota is his state of residence and that he
intends on returning to South Dakota after traveling. See Docket 20-1 at 1. He
then cites SDCL § 12-1-4, a provision that establishes the criteria for
determining an individual’s residence for voting purposes. It provides: “[a]
person who has left home and gone into another state or territory or county of
this state for a temporary purpose only has not changed his or her residence.”
SDCL § 12-1-4. Putting his affidavit together with SDCL § 12-1-4, he reasons
that SDCL § 37-24-41(14)(c) applies to him because he declared himself to be a
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resident of South Dakota, he plans on returning to South Dakota eventually,
he is a legal resident of South Dakota, and he is eligible to vote in South
Dakota.
South Dakota law may treat Lapin as a South Dakota resident for
purposes of allowing Lapin to obtain a South Dakota’s Driver’s License and to
vote. But the statute at issue in this case, § 37-24-41(c), provides no evidence
that the South Dakota Legislature wished to import the same loose definition of
resident. In fact, the South Dakota Legislature has done the opposite, given its
instruction to interpret words “in their ordinary sense” unless it has otherwise
defined such words. SDCL § 2-14-1. And because neither SDCL § 37-24-
41(14)(c) nor any surrounding provisions define the term resident, and the
ordinary sense of the word resident does not include a self-admitted travelling
digital nomad who has not physically lived in South Dakota for any significant
time, the court rejects Lapin’s argument that he is a resident for purposes of
his claims.
Lapin also argues that his “domicile” is South Dakota. See Docket 19 at
6-9. But the statute does not refer to domicile—it refers to “resident.” See SDCL
§ 37-24-41(14)(c). As the South Dakota Supreme Court has explained,
“[r]esidence and domicile are not interchangeable concepts.” State ex rel.
Jealous of Him v. Mills, 627 N.W.2d 790, 793 (S.D. 2001). While residence
“signifies living in [a] particular locality,” domicile means “living in that locality
with intent to make it a fixed and permanent home.” See In Re G.R.F., 569
N.W.2d 29, 33 n. 4 (S.D. 1997) (quoting Black’s Law Dictionary 485 (6th ed.
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1990)). If anything, establishing domicile is more difficult, because not only
does an individual have to prove he is living in the relevant location, but such
individual must also demonstrate an intent to make it his permanent home.
See id. Notably, the South Dakota Supreme Court’s discussion shows that both
the terms residence and domicile require, at a minimum, that the individual
live in the particular location. See id. Lapin does not live in South Dakota.
Thus, Lapin’s domicile argument fails.
In summary, Lapin does not live in South Dakota or spend any
significant amount of time in South Dakota. Under an ordinary sense of the
word resident, he cannot show that he is a resident of South Dakota. Lapin
cannot show that the emails sent to his email addresses were South Dakota
electronic mail addresses, and thus his claims asserting SDCL § 37-24-47
violations fail as a matter of law. There is no genuine dispute of material fact.
The court dismisses Lapin’s claims against EverQuote.
III. 	Preemption
EverQuote also argues that the federal CAN-SPAM Act, 15 U.S.C. § 7701
et seq., preempts Lapin’s South Dakota state-law claims. See Docket 14 at 12.
Because the court dismisses Lapin’s state-law claims against EverQuote, the
court need not decide the preemption issue.
IV. 	Electronic Filing
Finally, Lapin asks this court to reconsider its decision to deny him leave
to electronically file documents through CM/ECF. Docket 18. He argues that
“sending mail is hard” and details the costs and lack of convenience for him to
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send his filings through the mail. See id. at 18 at 2-4. He also argues he has
less effective time to respond due to the amount of time it takes him to send his
filings. See id. at 4. Alternatively, should the court deny him leave to file
electronically, he seeks leave to file without a wet signature. See id. at 4-5.
After considering his motion, the court denies his motion to reconsider
and denies his alternative request. While the court recognizes the challenges
associated with having to mail filings, those challenges arise from Lapin’s life-
style decisions rather than circumstances beyond his control. Furthermore,
after this order, the court does not anticipate many more filings from the
parties.
CONCLUSION
Based on the above, it is ORDERED that EverQuote’s motion to dismiss
Lapin’s claims (Docket 13) is GRANTED. It is further ORDERED that Lapin’s
motion to reconsider (Docket 18) is DENIED. It is further ORDERED that Lapin
identify and serve the sender “John Doe” within 21 days of this order, or else
the court will dismiss Lapin’s claims against John Doe without prejudice.
DATED February 17, 2023
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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