XMISSION, L.C., a Utah company,

Plaintiff – Appellant,

v. No. 23-4001

PUREHEALTH RESEARCH, a Virginia business entity,

Defendant – Appellee. _________________________________

Appeal from the United States District Court for the District of Utah (D.C. No. 2:21-CV-00734-TS) _________________________________

John J. Nielsen, Lee|Nielsen, Salt Lake City, Utah (Thomas R. Lee, Lee|Nielsen, Salt Lake City, Utah, Gregory Phillips, Salt Lake City, Utah, and Jordan Cameron, Cottonwood Heights, Utah, with him on the briefs), for Plaintiff-Appellant.

Scarlet R. Smith, Strong & Hanni, Sandy, Utah (H. Scott Jacobson, Strong & Hanni, Sandy, Utah, with her on the brief), for Defendant-Appellee. _________________________________

Before MORITZ, EBEL, and ROSSMAN, Circuit Judges.

_________________________________

ROSSMAN, Circuit Judge.

_________________________________ Appellate Case: 23-4001 Document: 010111072149 Date Filed: 06/28/2024 Page: 2

This case presents a variation on the theme of personal jurisdiction.

Appellant XMission, L.C. is an internet service provider based in Utah.

Appellee PureHealth Research is a Wyoming LLC that sells nutritional

supplements through its website. XMission sued PureHealth in federal district

court in Utah, claiming XMission’s customers in Utah received thousands of

unwanted promotional emails from PureHealth—allegedly in violation of state

and federal law—resulting in increased server maintenance costs and

customer complaints. PureHealth moved to dismiss under Federal Rule of Civil

Procedure 12(b)(2) for lack of specific personal jurisdiction, contending it

lacked sufficient contacts with Utah and the lawsuit did not “arise out of or

relate to” its forum conduct. The district court granted the motion.

This appeal asks whether PureHealth must defend this lawsuit in Utah

where the record establishes it knowingly sent marketing emails to XMission’s

customers in Utah. The answer is yes. Although this case has some

distinctively modern features, it is readily resolved by long-standing legal

principles. Exercising appellate jurisdiction under 28 U.S.C. § 1291, we

reverse and remand for further proceedings.

2 Appellate Case: 23-4001 Document: 010111072149 Date Filed: 06/28/2024 Page: 3

I1

A

XMission provides high-speed internet, cloud and web hosting, and email

services to customers in Utah. XMission’s infrastructure—its servers, routers,

and switches—is in Utah. Through its terms of service, XMission can opt out

of unwanted “spam” emails on behalf of its customers.2 And XMission’s

customers assign “the right to pursue claims arising from the receipt of spam

emails to XMission.” App. at 22, ¶ 75.

PureHealth is incorporated in Wyoming and has its principal place of

business in Virginia. It formulates and manufactures nutritional supplements

and sells those products nationwide through its website. PureHealth uses two

kinds of promotional emails to advertise its products. First, PureHealth creates

and sends direct marketing emails from its own domain names to recipients

who have done business with PureHealth and have not opted out of receiving

1 We take the facts recited here from XMission’s complaint and the

record on PureHealth’s motion to dismiss, including the information developed in jurisdictional discovery. See generally Sizova v. Nat. Inst. of Standards & Tech., 282 F.3d 1320, 1326 (10th Cir. 2002) (“When a defendant moves to dismiss for lack of jurisdiction, either party should be allowed discovery on the factual issues raised by that motion.” (qu

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