Consulting Engineers Corp. v. Geometric Ltd.

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CONSULTING ENGINEERS 

CORPORATION,

Plaintiff-Appellant,

v.  No. 07-1453

GEOMETRIC LIMITED; STRUCTURE

WORKS, LLC,

Defendants-Appellees.



Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

James C. Cacheris, Senior District Judge.

(1:06-cv-00956-JCC)

Argued: January 28, 2009

Decided: March 23, 2009

Before TRAXLER, DUNCAN, and AGEE, Circuit Judges.

Affirmed by published opinion. Judge Duncan wrote the opin-

ion, in which Judge Traxler and Judge Agee joined.

COUNSEL

ARGUED: Mindy Gae Farber, FARBER LEGAL, L.L.C.,

Rockville, Maryland, for Appellant. Kenneth Scott Leonetti,

FOLEY & HOAG, L.L.P., Boston, Massachusetts; Bill C.

2 CONSULTING ENGINEERS v. GEOMETRIC LIMITED

Berger, STETTNER & MILLER, P.C., Denver, Colorado, for

Appellees. ON BRIEF: John J. Rigby, MCINROY &

RIGBY, L.L.P., Arlington, Virginia, for Appellant. Catherine

H. Wicker, FOLEY & HOAG, L.L.P., Boston, Massachusetts,

for Appellee Geometric Limited; Berina Ibrisagic, STETT-

NER & MILLER, P.C., Denver, Colorado, for Appellee

Structure Works, LLC.

OPINION

DUNCAN, Circuit Judge:

Consulting Engineers Corp. ("CEC") sued Structure Works,

LLC ("Structure Works") and Geometric Software Solutions

("Geometric") in Virginia, asserting various tort and contract

claims. Structure Works and Geometric moved to dismiss for

lack of personal jurisdiction. The district court granted the

motions, and CEC appealed. For the reasons that follow, we

affirm.

I.

This dispute arose from a series of interactions among three

companies involving a software and structural design project

to be undertaken in India. Structure Works, a Colorado corpo-

ration, hired Geometric, an Indian corporation, to work on the

project. CEC is a Virginia corporation with two branch offices

in India. Structure Works, believing that CEC might be able

to assist Geometric in India with one aspect of this project,

arranged a conference call in early 2004 in which it intro-

duced the two.

In early February 2004, CEC and Geometric entered into a

non-disclosure agreement ("NDA I") in which each party

agreed, among other things, not to recruit certain named

employees from the other. The parties also agreed that Vir-

CONSULTING ENGINEERS v. GEOMETRIC LIMITED 3

ginia law (except Virginia choice of law rules) would govern

the agreement. J.A. 257. NDA I did not contain a forum selec-

tion clause. Geometric negotiated NDA I from India, and

CEC negotiated from Virginia. The negotiations leading to

the agreement consisted of four email exchanges and several

phone calls. Geometric signed the agreement in India.

CEC entered into a separate non-disclosure agreement

("NDA II") with Structure Works. NDA II specified that Col-

orado law would govern and that Colorado would be the

forum for any litigation over the agreement. J.A. 178-79.

These negotiations, as well as discussions regarding the

potential project, consisted of twenty-four emails (eight from

Structure Works and sixteen from CEC) and several telephone

calls. CEC and Structure Works each negotiated from their

respective home offices in Virginia and Colorado.

In mid-February 2004, representatives from Structure

Works, Geometric, and CEC held their first and only face-to-

face meeting at Geometric’s office in India. The negotiations

concerning the potential assistance lasted from February until

May 2004. In May 2004, Geometric hired CEC employee

Manoj Kumar, one of the employees named in NDA I.1 CEC

had employed Kumar in one of its Indian offices. Geometric

hired Kumar in India for work to be performed in India. J.A.

450. Thereafter, Structure Works elected not to pursue the

software and structural design project with CEC.

Nearly two years later, in March 2006, CEC filed suit

against Structure Works and Geometric in state court in Fair-

fax, Virginia. See J.A. 442. CEC alleged various tort claims

against Structure Works and tort and contractual claims

against Geometric.2 All the claims stemmed from Geometric’s

1

NDA I actually lists "Manoj Saxena," but CEC alleges (and, for the

purposes of this appeal, we take as true) that Manoj Saxena, Manoj

Kumar, and Manoj Kumar Saxena are the same employee.

2

Specifically, CEC alleged tort claims against Structure Works and

Geometric for (1) tortious inference with contractual relations, prospective

4 CONSULTING ENGINEERS v. GEOMETRIC LIMITED

hiring of Kumar. Id. Structure Works and Geometric removed

the action to the federal district court in the Eastern District

of Virginia based on the diversity of the parties. Structure

Works and Geometric then each moved to dismiss for, among

other reasons, lack of personal jurisdiction. The district court

granted the motions, holding that it lacked general and spe-

cific personal jurisdiction over Structure Works and Geomet-

rics.3 CEC timely appealed only the district court’s holding

that it lacked specific jurisdiction over the defendants.

II.

We review de novo a district court’s dismissal for lack of

personal jurisdiction, although we review for clear error any

underlying factual findings. Carefirst of Md., Inc. v. Carefirst

Pregnancy Ctrs., Inc. ("Carefirst"), 334 F.3d 390, 396 (4th

Cir. 2003). Where, as here, the district court addresses the

question of personal jurisdiction on the basis of motion

papers, supporting legal memoranda, and the allegations in

the complaint, the plaintiff bears the burden making a prima

facie showing of a sufficient jurisdictional basis to survive the

jurisdictional challenge. Combs v. Baker, 886 F.2d 673, 676

(4th Cir. 1989).

III.

In considering CEC’s assertion of personal jurisdiction, we

first set forth the applicable law. A federal district court may

business relations and/or economic advantages and (2) conspiracy to

injury another in trade, business or profession. CEC also alleged claims

against Geometric for (1) breach of contract; (2) conversion; and (3) viola-

tion of Virginia’s Uniform Trade Secrets Act. J.A. 144-57.

3

To establish "general jurisdiction" over a foreign corporation, the

plaintiff must show that the corporation’s activities in the state are "contin-

uous and systematic," which is a more demanding standard than is neces-

sary for establishing "specific jurisdiction." ALS Scan, Inc. v. Digital Serv.

Consultants, Inc., 293 F.3d 707, 712 (4th Cir. 2002).

CONSULTING ENGINEERS v. GEOMETRIC LIMITED 5

only exercise personal jurisdiction over a foreign corporation

if such jurisdiction is authorized by the long-arm statute of the

state in which it sits and application of the long-arm statute

is consistent with the due process clause of the Fourteenth

Amendment, U.S. Const. amend. XIV § 1. Carefirst, 334 F.3d

at 396; see also Stover v. O’Connell Assoc., Inc., 84 F.3d 132,

136 (4th Cir. 1996). We turn first to state law.

The relevant portion of Virginia’s long-arm statute pro-

vides, "A court may exercise personal jurisdiction over a per-

son, who acts directly or by an agent, as to a cause of action

arising from the person’s . . . [t]ransacting any business in this

Commonwealth." Va. Code Ann. § 8.01-328.1(A)(1). The

exercise of personal jurisdiction is proper, then, only if the

asserted cause of action "aris[es] from" the non-resident

defendant’s "[t]ransacting business" in Virginia. § 8.01-

328.1(A)(1); see also DeSantis v. Hafner Creations, Inc., 949

F. Supp. 419, 423-24 (E.D. Va. 1996); Chedid v. Boardwalk

Regency Corp., 756 F. Supp. 941, 943-44 (E.D. Va. 1991).

Because Virginia’s long-arm statute is intended to extend per-

sonal jurisdiction to the extent permissible under the due pro-

cess clause, the statutory inquiry merges with the

constitutional inquiry. Young v. New Haven Advocate, 315

F.3d 256, 261 (4th Cir. 2002) (citing Stover, 84 F.3d at 135-

36); see also English & Smith v. Metzer, 901 F.2d 36, 38 (4th

Cir. 1990); Peninsula Cruise, Inc. v. New River Yacht Sales,

Inc., 512 S.E.2d 560, 562 (Va. 1999).

We turn next to the constitutional analysis.4 To satisfy the

4

We note that even though the purpose of Virginia’s long-arm statute

is to extend personal jurisdiction to the outermost boundaries of due pro-

cess, it is still "possible that a non-resident defendant’s contacts with Vir-

ginia could fulfill the dictates of due process, yet escape the literal grasp

of [the] long-arm statute." DeSantis, 949 F. Supp. at 423. Here, however,

because we find that the constitutional due process requirements have not

been met with regard to either of the defendants, we need not reach the

issue of whether Virginia’s arguably more stringent long-arm statute

would have also denied the court personal jurisdiction.

6 CONSULTING ENGINEERS v. GEOMETRIC LIMITED

constitutional due process requirement, a defendant must have

sufficient "minimum contacts" with the forum state such that

"the maintenance of the suit does not offend traditional

notions of fair play and substantial justice." Int’l Shoe Co. v.

Wash., 326 U.S. 310, 316 (1945) (quotation and citation omit-

ted). The minimum contacts test requires the plaintiff to show

that the defendant "purposefully directed his activities at the

residents of the forum" and that the plaintiff’s cause of action

"arise[s] out of" those activities. Burger King Corp. v.

Rudzewicz, 471 U.S. 462, 472 (1985) (citation and quotation

omitted). This test is designed to ensure that the defendant is

not "haled into a jurisdiction solely as a result of random, for-

tuitous, or attenuated contacts." Burger King, 471 U.S. at 475

(quotations and citations omitted). It protects a defendant

from having to defend himself in a forum where he should not

have anticipated being sued. See World-Wide Volkswagen

Corp. v. Woodson, 444 U.S. 286, 297 (1980). Because a sov-

ereign’s jurisdiction remains territorial, to justify the exercise

of personal jurisdiction over a non-resident defendant, the

defendant’s contacts with the forum state must have been so

substantial that "they amount to a surrogate for presence and

thus render the exercise of sovereignty just." ESAB Group,

Inc. v. Centricut, Inc., 126 F.3d 617, 623 (4th Cir. 1997).

This court has synthesized the due process requirements for

asserting specific personal jurisdiction in a three part test in

which "we consider (1) the extent to which the defendant pur-

posefully availed itself of the privilege of conducting activi-

ties in the State; (2) whether the plaintiffs’ claims arise out of

those activities directed at the State; and (3) whether the exer-

cise of personal jurisdiction would be constitutionally reason-

able." ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293

F.3d 707, 712 (4th Cir. 2002) (quotations and citations omit-

ted).

The first prong articulates the minimum contacts require-

ment of constitutional due process that the defendant purpose-

fully avail himself of the privilege of conducting business

CONSULTING ENGINEERS v. GEOMETRIC LIMITED 7

under the laws of the forum state. While this requirement is

not susceptible of mechanical application, see Int’l Shoe, 326

U.S. at 319; Kulko v. Superior Court, 436 U.S. 84, 92 (1978),

courts have considered various nonexclusive factors in seek-

ing to resolve whether a defendant has engaged in such pur-

poseful availment. In the business context, these factors

include, but are not limited to:

• whether the defendant maintains offices or agents

in the forum state, see McGee v. Int’l Life Ins.

Co., 355 U.S. 220, 221 (1957);

• whether the defendant owns property in the

forum state, see Base Metal Trading, Ltd. v.

OJSC, 283 F.3d 208, 213 (4th Cir. 2002);

• whether the defendant reached into the forum

state to solicit or initiate business, see McGee,

355 U.S. at 221; Burger King, 471 U.S. at 475-

76;

• whether the defendant deliberately engaged in

significant or long-term business activities in the

forum state, see Burger King, 471 U.S. at 475-76,

481;

• whether the parties contractually agreed that the

law of the forum state would govern disputes, see

Burger King, 471 U.S. at 481-82;

• whether the defendant made in-person contact

with the resident of the forum in the forum state

regarding the business relationship, see Hirsch-

kop & Grad, P.C. v. Robinson, 757 F.2d 1499,

1503 (4th Cir 1985);

• the nature, quality and extent of the parties’ com-

munications about the business being transacted,

see English & Smith, 901 F.2d at 39; and

8 CONSULTING ENGINEERS v. GEOMETRIC LIMITED

• whether the performance of contractual duties

was to occur within the forum, see Peanut Corp.

of Am. v. Hollywood Brands, Inc., 696 F.2d 311,

314 (4th Cir. 1982).

Through an analysis of such factors, if a court finds that the

defendant has availed himself of the privilege of conducting

business in the forum, specific jurisdiction exists. "[B]ecause

[the defendant’s] activities are shielded by the benefits and

protections of the forum’s laws it is presumptively not unrea-

sonable to require him to submit to the burdens of litigation

in that forum as well." Burger King, 471 U.S. at 476 (internal

quotation marks omitted). If, and only if, we find that the

plaintiff has satisfied this first prong of the test for specific

jurisdiction need we move on to a consideration of prongs two

and three.

The second prong of the test for specific jurisdiction — that

the plaintiff’s claims arise out of the activities directed at the

forum — requires that the defendant’s contacts with the

forum state form the basis of the suit. See Burger King, 471

U.S. at 472; Heliocopteros Nacionales de Colombia, S.A. v.

Hall, 466 U.S. 408, 414 (1984). If the plaintiff satisfies

prongs one and two, prong three comes into play.

The third prong — that the exercise of personal jurisdiction

be constitutionally reasonable — permits a court to consider

additional factors to ensure the appropriateness of the forum

once it has determined that a defendant has purposefully

availed itself of the privilege of doing business there. Such

factors include: (1) the burden on the defendant of litigating

in the forum; (2) the interest of the forum state in adjudicating

the dispute; (3) the plaintiff’s interest in obtaining convenient

and effective relief; (4) the shared interest of the states in

obtaining efficient resolution of disputes; and (5) the interests

of the states in furthering substantive social policies. See Bur-

ger King, 471 U.S. at 477 (citing World-Wide Volkswagen,

444 U.S. at 292).

CONSULTING ENGINEERS v. GEOMETRIC LIMITED 9

IV.

With that background in mind, we now turn to CEC’s argu-

ments that the district court erred in finding that it lacked spe-

cific personal jurisdiction over Structure Works and

Geometric. We consider CEC’s arguments against these enti-

ties in turn.

A.

CEC’s tort claims against Structure Works are based on

Structure Works’ alleged conspiracy with Geometric to vio-

late NDA I by hiring Kumar. The contacts that support CEC’s

assertion of jurisdiction consist of approximately four tele-

phone conversations and twenty-four emails, eight of which

were sent by Structure Works. Petr.’s Br. at 28. The substance

of these communications, according to CEC, included the

negotiation of NDA II and discussion of a proposal for CEC’s

services. Id. at 28-29. CEC argues that Structure Works

"sought out" and "transact[ed] business with" CEC, and there-

fore "by its own actions . . . created a relationship with a Vir-

ginia citizen." Petr.’s Br. at 13-14; 28. CEC asserts that

Structure Works "intentionally directed electronic communi-

cations into Virginia with the clear intent of transacting busi-

ness there." Id. at 14. CEC maintains that the district court

erred in holding that it lacked specific jurisdiction over Struc-

ture Works because these communications constituted the

requisite minimum contacts with Virginia.5 We disagree.

5

CEC attempts to frame this case as presenting "the issue of the role of

technology in personal jurisdiction." Petr.’s Br. at 9. However, the mere

fact that emails, telephone calls, and faxes were employed does not, of

itself, alter the minimum contacts analysis. The analysis must focus on the

nature, quality, and quantity of the contacts, as well as their relation to the

forum state. As this court held in ALS Scan, "technology cannot eviscerate

the constitutional limits on a State’s power to exercise jurisdiction over a

defendant." ALS Scan, 293 F.3d at 711. The fact that the parties used tech-

nology to facilitate communications does not ease CEC’s burden to make

out a prima facie case for personal jurisdiction.

10 CONSULTING ENGINEERS v. GEOMETRIC LIMITED

We look to the quality and nature of the contacts in evaluat-

ing whether they meet the minimum contacts requirement.

Harking back to the factors distilled from the case law, it

becomes apparent that the contacts described by CEC do not

support the conclusion that Structure Works purposefully

availed itself of the privilege of doing business in Virginia to

an extent sufficient to justify personal jurisdiction. Structure

Works did not have offices or employees in Virginia, nor did

it own property there. It had no on-going business activity in

Virginia. The record does not reflect any in-person contact

with CEC in Virginia. Structure Works negotiated NDA II

from, and signed it in, Colorado, and the agreement includes

a Colorado choice-of-law and choice-of-forum clause. Any

work contemplated by the discussions would have been per-

formed in India; no formal agreement was ever reached to

perform the work; and, indeed, the very activity of which

CEC complains—the hiring of Kumar—took place in India.

Further, because the alleged conspiracy (between two non-

Virginia corporations) and alleged tortious interference with

an at-will contract occurred in India, Indian law would govern

under Virginia’s choice of law provisions.6

Although CEC argues that Structure Works reached out to

it in Virginia, this assertion, even when coupled with the cited

communications, is not enough to overcome the factors noted

above.7 On these facts, Structure Works’ contact with Virginia

6

For torts, under Virginia’s choice of law rules, claims are analyzed

under the law governing the place of the alleged wrong. Jones v. R.S.

Jones and Assocs., Inc., 431 S.E.2d 33, 34 (Va. 1993). The place of

alleged wrong is the place "where the last event necessary to make an act

liable for an alleged tort takes place." Quillen v. Int’l Playtex, Inc., 789

F.2d 1041, 1044 (4th Cir. 1986) (citation and quotation omitted). Here,

this "last event" would be Geometric’s hiring of Kumar.

7

It is, in fact, not free from doubt that Structure Works first contacted

CEC. As CEC acknowledges, Structure Works knew of CEC because of

marketing presentations CEC initiated. Because of the overwhelming

weight of other factors, however, we need not resolve this question.

CONSULTING ENGINEERS v. GEOMETRIC LIMITED 11

was simply too attenuated to justify the exercise of personal

jurisdiction.

CEC also argues that jurisdiction exists based on the so-

called "effects test." See Carefirst, 334 F.3d at 398 n.7. Under

that test, the plaintiff must establish that specific jurisdiction

is proper by showing that "(1) the defendant committed an

intentional tort; (2) the plaintiff felt the brunt of the harm in

the forum, such that the forum can be said to be the focal

point of the harm; and (3) the defendant expressly aimed his

tortious conduct at the forum, such that the forum can be said

to be the focal point of the tortious activity." Id. CEC argues

that because "CEC suffered its economic injury in Virginia,"

Petr.’s Br. at 25, and Structure Works allegedly intentionally

aimed its conduct at Virginia, the exercise of personal juris-

diction is proper.

The effects test does not aid CEC on the facts here. As we

explained in Carefirst, part of the effects test requires the

plaintiff to establish that "the defendant expressly aimed his

tortious conduct at the forum, such that the forum can be said

to be the focal point of the tortious activity." 334 F.3d at 398

n.7 (emphasis added). CEC has failed to demonstrate that the

focal point of the alleged tortious activity was Virginia.

Rather, as previously noted, the focal point of the alleged tor-

tious transaction was India: the individuals named in NDA I

worked in India;8 the only face-to-face meeting between the

parties took place in India; the performance of any potential

contract between the parties was to occur in India; and the

alleged tortious activity took place in India. The effects test

does not supplant the minimum contacts analysis, but rather

informs it. As we noted in ESAB Group, "[a]lthough the place

the plaintiff feels the alleged injury is plainly relevant to the

[jurisdictional] inquiry, it must ultimately be accompanied by

8

As noted, although Structure Works was not a party to NDA I, CEC’s

bases its tort claims against Structure Works on Structure Works’ alleged

conspiracy with Geometric to breach of NDA I.

12 CONSULTING ENGINEERS v. GEOMETRIC LIMITED

the defendant’s own contacts with the state if jurisdiction over

the defendant is to be upheld." 126 F.3d at 626.

Structure Works’ contacts with the forum state were suffi-

ciently attenuated that it would be a manifest injustice to hale

it into Virginia court. The district court did not err in conclud-

ing that it lacked specific personal jurisdiction over Structure

Works.9

B.

CEC alleges both tort and contract claims against Geomet-

ric. CEC argues that the district court erred in holding that it

lacked specific jurisdiction over Geometric because Geomet-

ric (1) "initiated contact with CEC via telephone and email";

(2) "negotiated the terms of [NDA I] with CEC"; and (3)

"agreed that Virginia law governed [NDA I]." Petr.’s Br. at

13.

CEC urges that the inclusion of the choice of law clause in

NDA I "preemptively waives any potential challenges to Vir-

ginia’s jurisdiction."10 Petr.’s Br. at 23. This provision, how-

ever, while significant, cannot by itself carry the weight CEC

would assign to it. The inclusion of a choice of law clause is

one factor that a court may take into account in determining

whether the exercise of personal jurisdiction is justified, but

it is no more than that. Burger King, 471 U.S. at 482 ("[S]uch

a [choice of law] provision standing alone would be insuffi-

cient to confer [personal] jurisdiction."). Indeed, CEC appears

9

CEC has also failed to demonstrate, as required by the second prong

of the specific jurisdiction test, that the tort causes of action it asserts

against Structure Works "arose from" Structure Works’ contacts with Vir-

ginia. See ALS Scan, 293 F.3d at 712. However, because CEC has failed

to satisfy the first prong of the specific jurisdiction test, we need not ana-

lyze the remaining prongs.

10

CEC also maintains that personal jurisdiction over Geometric is justi-

fied based on the "effects test." As explained above, that test is inapposite

on the facts here.

CONSULTING ENGINEERS v. GEOMETRIC LIMITED 13

to recognize as much. In an earlier pleading, CEC acknowl-

edged that such a clause is "not dispositive of a personal juris-

diction question."11 J.A. 466. The jurisdictional inquiry

remains centered on the extent, nature, and quality of Geo-

metric’s contacts with Virginia. See Burger King, 471 U.S. at

481-82; see also Nw. Airlines, Inc. v. Astraea Aviation Servs.,

Inc., 111 F.3d 1386, 1390 (8th Cir. 1997). Here, the commu-

nication between Geometric and CEC consisted of an

exchange of four brief emails, several telephone conversations

about NDA I, and the exchange of the various drafts. Even

when considered together with the choice of law provision,

the contacts described do not make out a prima facie showing

of a sufficient jurisdictional basis to survive challenge. Geo-

metric is based in, and negotiated solely from, India. Geomet-

ric owns no property in Virginia. None of Geometric’s

employees work in Virginia; none have ever even traveled to

Virginia. Although CEC contended that Geometric "initiated"

contact with it in Virginia, the record does not support this

assertion. The record reflects, and indeed CEC does not dis-

pute, that the two parties were first introduced on a joint con-

ference call with Structure Works.

Geometric engaged in no on-going business activities in

Virginia, and the only in-person meeting among the parties

occurred in India. If the parties had consummated their agree-

ment to work together, the work would have been performed

in India. Again, the activity of which CEC complains — the

hiring of Kumar in alleged violation of NDA I — took place

in India. The alleged conspiracy and interference with an at-

will contract occurred outside of Virginia, involving an

11

We note in passing that a valid forum selection clause, unlike a choice

of law clause, may act as a waiver to objections to personal jurisdiction.

Nat’l Equip. Rental, Ltd. v. Szukhent, 375 U.S. 311, 315-16 (1964) ("[I]t

is settled . . . that parties to a contract may agree in advance to submit to

the jurisdiction of a given court[.]"); D.H. Blair & Co., Inc. v. Gottdiener,

462 F.3d 95, 103 (2d Cir. 2006) ("Parties can consent to personal jurisdic-

tion through forum-selection clauses in contractual agreements."). Here,

NDA I contained no forum selection clause.

14 CONSULTING ENGINEERS v. GEOMETRIC LIMITED

alleged plan between two non-Virginia corporations to hire an

employee working in India. Considering all the factors here,

and despite the choice of law clause in NDA I, we conclude

that the district court did not err in holding that Geometric’s

contacts with Virginia were too attenuated to support specific

personal jurisdiction.12

V.

Because CEC failed to demonstrate that Structure Works

and Geometric had sufficient contacts with Virginia to satisfy

the due process minimum contacts requirement, the district

court’s holding that it lacked specific personal jurisdiction

over the defendants is

AFFIRMED.

12

The third prong of the specific jurisdiction test also likely weighs

against exercising personal jurisdiction over Geometric, an Indian corpo-

ration. As the Supreme Court has explained, "[t]he unique burdens placed

upon one who must defend oneself in a foreign legal system should have

significant weight in assessing the reasonableness of stretching the long

arm of personal jurisdiction over national borders." Asahi Metal Ind. Co.

v. Superior Court, 480 U.S. 102, 114 (1987); see also Foster v. Arletty 3

Sarl, 278 F.3d 409, 414 (4th Cir. 2002). Because CEC has failed to satisfy

the first prong of the specific jurisdiction test, a detailed analysis of this

third prong is unnecessary.