IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
                      DIVISION OF ST. CROIX

  HAYDEN BARRY,
                                              CIVIL NO. SX-20-CV-722
                              Plaintiff,
                                              COMPLEX LITIGATION
                                              DIVISION
                      v.
                                 (Grouped under Master Case
  R.J. REYNOLDS TOBACCO COMPANY, Civil No. SX-20-MC-090)
  ISLAND SAINTS CORP.,
  UNITED CORP. and
  KAC357, INC.,

                              Defendants.


                            Cite as: 

                            MEMORANDUM OPINION
                             (Filed August 10, 2023)

   Andrews, Jr., Judge

                                INTRODUCTION

      ¶1    Hayden Barry, a St. Croix resident, brings this action for damages

against cigarette manufacturer R.J. Reynolds Tobacco Company (Reynolds),

cigarette wholesaler Island Saints Corp., and cigarette retailers United Corp. and

KAC357 Inc. He alleges, as a result of smoking cigarettes manufactured and sold

by the defendants, he contracted smoking related diseases including bladder

cancer and heart disease.     Barry further alleges, in Counts 5 and 6 of his

complaint, that Reynolds, along with other cigarette manufacturers, engaged in a

fraud and conspiracy by misrepresenting the health effects and addictive nature of
Barry v. Philip Morris, Et. Al.
SX-20-CV-722

Memorandum Opinion
Page 2

cigarette smoking.       He claims he relied on the misrepresentations, continued

smoking and developed the diseases. Reynolds now moves to dismiss those

claims for lack of personal jurisdiction. It maintains they do not arise out of any

contacts it had with the Virgin Islands. For the reasons mentioned below, this

Court concludes that it lacks personal jurisdiction over Barry’s fraud claims in

Counts 5 and 6 and will thus grant Reynolds’ Motion to Dismiss.

                                  FACTUAL BACKGROUND

       Defendant Reynolds is a cigarette manufacturing corporation organized

under the laws of North Carolina with its principal place of business in the state of

North Carolina. First Am. Compl. (F.A.C.) p 2, ¶ 4. It conducts business in the

U.S. Virgin Islands. 

 Reynolds designs, manufactures, advertises, markets,

and distributes cigarette products including Winston cigarettes. 

 Island Saints

Corp. (a successor in interest to Bellows International and West Indies Company)

is a wholesaler organized under the laws of the U.S. Virgin Islands with its principal

place of business in the territory. 

. It distributes and sells cigarettes in

the U.S. Virgin Islands supplied by Reynolds. 

; p 5, ¶ 14; p 6, ¶ 17.

Wholesale distribution by Reynolds and Philip Morris USA Inc. (Philip Morris),

another cigarette manufacturer, exceeded $1 million dollars per year from 1950 to

present. 

.
Barry v. Philip Morris, Et. Al.
SX-20-CV-722

Memorandum Opinion
Page 3

       Plaintiff Barry lived in England from 1962 to 1978 when he moved to the

U.S. Virgin Islands. Reply to Opp. to Mot. to Dismiss, Ex. A, H.; Barry Dep., Vol. I,

15-22; 48:1-3. He is unable to read. 

 Ex. B, H.; Barry Dep., Vol. II 36:15-18.

Barry started smoking Marlboro cigarettes, manufactured by Philip Morris, in the

late 1950s or early 1960s, and switched to Winston, manufactured by Reynolds,

around 1978. FAC, p 4, ¶ 12. He continued smoking Winston until around 2001,

and he was diagnosed with bladder cancer and heart disease which he claims was

caused by smoking cigarettes. 

.

       Count 5 of Barry’s complaint alleges Reynolds and other cigarette

manufacturers carried out a scheme to deceive the American public, Barry, and

others, as to the true dangers of cigarette smoke by, among other things:

           a. concealing vast amounts of knowledge they possessed concerning
              numerous health dangers regarding cigarette smoking. F.A.C., pp 68-
              70, ¶ 284(a-s);

           b. fraudulently marketing and selling cigarettes as ‘filtered’ knowing
              smokers wrongly believe that such cigarettes reduce the harms of
              smoking. F.A.C. p 70, ¶ 284(t); p 74, ¶ 294; and

           c. knowingly making false statements or advertisements that smoking
              was not harmful, not been proven to be harmful, and that light, low tar
              and filter cigarettes were less harmful. F.A.C. p 75, ¶ 298.

He claims, during the course of his smoking history, he heard some or all of the

false misleading statements made directly or indirectly by Reynolds, believed
Barry v. Philip Morris, Et. Al.
SX-20-CV-722

Memorandum Opinion
Page 4

some or all of them and relied on them to his detriment by smoking and continuing

to smoke cigarettes which led to the development of bladder cancer and heart

disease. F.A.C. pp 74-75, ¶¶ 297, 299.

       Count     6   of   Barry’s   complaint   alleges   Reynolds,    other   tobacco

manufacturers, the Council for Tobacco Research, the Tobacco Industry Research

Committee (TIRC), the Tobacco Institute, and others unlawfully agreed to:

       a. conceal, omit and/or misrepresent, information regarding the
          health effects of cigarettes and/or their addictive nature with the
          intention that smokers and the American public, including
          individuals in the U.S. Virgin Islands and Barry would rely on this
          information to their detriment. F.A.C. p 76, ¶ 302;

       b.   conceal the harms of smoking cigarettes. F.A.C. p 76, ¶ 303; and

       c. market and/or advertise filters, low tar cigarettes and ultra lights, as safer
          or less hazardous to health than non-filtered cigarettes; F.A.C. p 77, ¶
          305(a-c).

He claims during the course of his smoking history, he heard and believed some

or all of the statements, relied on them to his detriment and continued to smoke

cigarettes. F.A.C. p 78, ¶ 308.

                                    PROCEDURAL HISTORY

       On March 27, 2023, Barry filed a first amended complaint against cigarette

manufacturers Philip Morris and Reynolds, cigarette wholesaler Island Saints

Corp. (f/k/a Topa Equities V.I. Corporation), and cigarette retailers, United Corp.
Barry v. Philip Morris, Et. Al.
SX-20-CV-722

Memorandum Opinion
Page 5

(d/b/a Plaza Extra East) and KAC357 Inc. (d/b/a The Market St. Croix, f/n/a Plaza

Extra West).1 He seeks damages based on Strict Products Liability (Count 1),

Negligence (Count 3), Fraudulent Concealment and Misrepresentation (Count 5)

and Civil Conspiracy (Count 6).2 

 at pp 64 – 79. On April 20, 2023, Reynold

moved to dismiss Counts 5 and 6 of the First Amended Complaint. Barry filed an

opposition on May 19, 2023, and Reynolds replied on June 16, 2023. This Court

held a hearing on the motion on July 19, 2023, and took the matter under

advisement.

                                      APPLICABLE LAW

         Reynolds seeks dismissal of Counts 5 and 6 of Barry’s complaint for lack of

personal jurisdiction pursuant to V.I.R. Civ. P. 12(b)(2). On such motions, the

plaintiff bears the ultimate burden to prove the court’s jurisdiction. The nature of

the burden depends on the court’s decision whether to hold an evidentiary hearing.

If a hearing is held, “the plaintiff must come forward with evidence to prove the

court’s jurisdiction by a preponderance of the evidence.” Molloy v. Independence

Blue Cross, 

 (V.I. 2012). However, where, as here, no hearing is



1
    On June 5, 2023, Barry voluntarily dismissed his complaint against defendant Philip Morris.
2
    Barry deleted Counts 2 and 4 (both included in the original complaint) from his First Amended
    Complaint.
Barry v. Philip Morris, Et. Al.
SX-20-CV-722

Memorandum Opinion
Page 6

held, “the plaintiff is only required to establish a prima facia case for personal

jurisdiction.” 

 3    Pursuant to this standard, “it is the plaintiff’s burden to

demonstrate the existence of every fact required to satisfy ‘both the forum’s long-

arm statute and the Due Process Clause of the Constitution.’” 

, quoting

United Elec. Radio & Mach. Workers of Am. v. 163 Pleasant St. Corp., 

 (1st Cir. 1993). In making the prima facie determination, the court “must

accept as true all of plaintiff’s factual allegations that are supported by affidavits or

other competent evidence, which would be admissible at trial and must resolve all

factual disputes in the plaintiff’s favor.” 

.

       In its motion, Reynolds does not challenge the Court’s jurisdiction under the

long-arm statute. Its challenge focuses solely on the Due Process Clause of the

Constitution. Mot. to Dismiss, p 2, n 2. The Due Process Clause restricts this

court’s ability to exert personal jurisdiction over a nonresident defendant. Walden

v. Fiore, 

 (2014); Asahi Metal Indus. Co. v. Superior Ct. of Cal.,

 (1987). The ‘constitutional touchtone’ for determining whether

the exercise of personal jurisdiction comports with due process “remains whether



3
  Except for pointing out that certain allegations are unsupported, Reynolds does not directly
challenge the factual accuracy of Barry’s allegations. Its main claim is that the allegations are
insufficient to establish specific personal jurisdiction. As such, the Court sees no reason to hold
an evidentiary hearing, and none was requested by the parties.
Barry v. Philip Morris, Et. Al.
SX-20-CV-722

Memorandum Opinion
Page 7

the defendant purposefully established ‘minimum contacts’ in the forum State.”

Asahi, 

, quoting Burger King Corp. v. Rudzewicz, 

 (1985). Such contacts, referred to as “purposeful availment”, must be based

on “some act by which the defendant purposefully avails itself of the privilege of

conducting activities within the forum State, thus invoking the benefits and

protections of its laws.” Id. at 109, quoting Burger King, 

.

Jurisdiction lies “where the contacts proximately result from actions by the

defendant himself that create a ‘substantial connection’ with the forum State.” 

Thus, Due Process protects a defendant from being haled into a state court “based

on the “random, fortuitous, or attenuated” contacts he makes by interacting with

other persons affiliated with the State. Walden, 

, quoting Burger

King, 

 (stating “this ‘purposeful availment’ requirement ensures that

a defendant will not be haled into a jurisdiction solely as a result of ‘random,’

‘fortuitous,’ or ‘attenuated’ contacts or of the ‘unilateral activity of another party or

a third person,”). With intentional torts, the exercise of jurisdiction “must be based

on intentional conduct by the defendant that creates the necessary contacts with

the forum.” Id. at 286. The relied upon contacts, “must be the defendant’s own

choice and not ‘random, isolated or fortuitous.” Ford Motor Co. v. Mont. Eighth

Judicial Dist. Court, 

 (2021). The plaintiff must show that
Barry v. Philip Morris, Et. Al.
SX-20-CV-722

Memorandum Opinion
Page 8

“the defendant deliberately ‘reached out beyond’ its home- by for example,

‘exploi[ting] a market’ in the forum State or entering a contractual relationship

centered there.” 

 The plaintiff’s claim, then, must arise out of or relate to the

defendant’s forum contacts. 

       To assess whether the exercise of personal jurisdiction violates due

process, the court must decide: 1) whether it has general jurisdiction (i.e., the right

to hear all cases against a defendant regardless of where or how they arise) due

to the defendant’s continuous and systematic contact with the forum; and 2)

whether the exercise of jurisdiction comports with fair play and substantial justice. 4

Molloy, 

.           If the court does not find general jurisdiction it may

nevertheless exercise specific personal jurisdiction on a claim-by-claim basis if: 1)

the defendant has the requisite minimum contacts with the Virgin Islands (i.e., the

defendant has purposefully directed its activities at the forum); 2) the claim arises

out of, or relate to, at least one of those contacts (or activities); and 3) the exercise

of jurisdiction comports with fair play and substantial justice. 

,



4
  In his opposition, Barry does not address Reynold’s lack of general jurisdiction argument. His
arguments are, instead, based on specific jurisdiction. The Court thus considers any general
jurisdiction argument as waived. Further, this Court has already concluded that Barry has failed
to establish a prima facie case of general jurisdiction over Reynolds regarding his fraud and
conspiracy claims under the initial complaint. Order Regarding R.J. Reynolds Motion to Dismiss
Certain Claims, March 14, 2023, p 11. Nothing in Barry’s First Amended Complaint alters this
conclusion.
Barry v. Philip Morris, Et. Al.
SX-20-CV-722

Memorandum Opinion
Page 9

quoting D’Jamoos v. Pilatus Aircraft Ltd., 

 (3d Cir. 2009). This is

a claim-specific analysis. See Kulko v. Superior Ct. of Cal., 

 (1978)

(stating, “the ‘minimum contacts’ test of International Shoe is not susceptible to

mechanical application; rather, the facts of each case must be weighed to

determine whether the requisite ‘affiliating circumstances’ are present.”).       The

rationale of the test is “to ensure that the defendant has the requisite minimum

contacts with a forum to receive ‘fair warning” that the defendant may be haled into

court in that forum to answer for its action in relation to those contacts.” 

 at 183

- 84. Where a plaintiff establishes that a defendant has the requisite minimum

contacts out of which his or her claim arises, “the burden shifts to the defendant to

‘present a compelling case that the presence of some other considerations would

render jurisdiction unreasonable.’” 

, citing Burger King Corp., 

.

                                  LEGAL ANALYSIS

       Defendant Reynolds claims this Court lacks personal jurisdiction over it to

adjudicate Barry’s fraud claims in Counts 5 (Fraudulent Concealment and

Misrepresentation) and 6 (Civil Conspiracy). In order for a Virgin Islands court to

exercise personal jurisdiction, a plaintiff must establish: a) a prima facie case under

the Virgin Island long arm statute; and b) a prima facie showing that the
Barry v. Philip Morris, Et. Al.
SX-20-CV-722

Memorandum Opinion
Page 10

defendant’s due process rights would not be violated by being haled into a Virgin

Islands court. Molloy, 

. Here, Reynolds challenges jurisdiction only

on constitutional grounds. Opp. to Mot. to Dismiss, p 2, n 2. It claims this Court

lacks general as well as specific jurisdiction over it. Barry makes no argument in

support of general jurisdiction, hence              the Court addresses only the issue of

specific jurisdiction.5

          Reynolds argues that Barry’s complaint allegations are insufficient to

establish that: a) Reynolds purposefully directed its activities at the Virgin Islands;

and b) Barry’s claims “arise out of or relate to” those activities. Mot. to Dismiss, pp

4 – 5. Barry responds that “Reynolds directed false statements to the Virgin

Islands and sold and distributed its cigarettes to Virgin Islands entities for ultimate

resale to the Virgin Islands public.” Opp. to Mot. to Dismiss, p 3. This Court must

thus decide whether: a) Reynolds has the requisite minimum contacts with the

Virgin Islands (i.e., it has purposefully directed fraudulent misrepresentations at

the Virgin Islands); 2) Barry’s fraud claims in Counts 5 and 6 arise out of, or relate

to, at least one of those contacts (or activities); and 3) the exercise of jurisdiction

comports with fair play and substantial justice. Molloy, 

., quoting



5
     As indicated in Note “4” above, this Court considers any argument regarding general jurisdiction
    as waived.
Barry v. Philip Morris, Et. Al.
SX-20-CV-722

Memorandum Opinion
Page 11

D’Jamoos v. Pilatus Aircraft Ltd., 

 (3d Cir. 2009). Since this Court

finds that Barry has failed to meet his burden with one or both of the first two

factors, it does not address the third factor.

       In an attempt to meet its burden to demonstrate the existence of minimum

contacts required to satisfy the Due Process Clause, Barry points to several

allegations in his complaint. This Court, however, will accept as true only those

allegations that are supported by affidavits or other competent evidence, or that

are undisputed for purposes of the instant motion. Molloy, 

. Barry’s

complaint allegations relative to Counts 5 and 6 are generalized. They do not

specify the details of the alleged misrepresentations, identify the target of “filtered”

or “ultra lights” cigarette marketing or sales, or of the alleged false

statements/advertisements other than the “American Public”. See F.A.C. pp 68 -

77. Such allegations do not allow meaningful analysis of specific jurisdiction.

The Court thus focuses on the alleged contacts outlined in Barry’s opposition to

the motion to dismiss, and those made at oral argument, which contains details

and some documentary support. As explained below,              this Court finds all of

Reynolds’ alleged contacts insufficient to support specific personal jurisdiction.

       1) Barry’s Alleged Virgin Islands Contacts Are Insufficient to Establish
          Specific Personal Jurisdiction Over His Fraud Claims.
Barry v. Philip Morris, Et. Al.
SX-20-CV-722

Memorandum Opinion
Page 12

       Barry alleges numerous contacts in support of his fraud claims in Counts 5

and 6. These contacts are addressed seriatim below.

           A) Distribution of Winston Cigarettes to the Virgin Islands

       Barry alleges Reynolds distributed Winston brand cigarettes to the Virgin

Islands beginning as early as 1954. Opp. to Mot. to Dismiss, p 3. In support of

this contact, he submitted a November 4, 1954 letter from Reynolds praising its

employees for progress on the sale of filter-tip cigarettes and reporting that

shipments were on the way to various places including the Virgin Islands. 

 Ex.

A.   Barry argues that this contact shows that Reynolds transacted business,

and/or contracted to supply services or products, in the Virgin Islands and such

contact establishes this Court’s personal jurisdiction under the Long Arm Statute.

. Such jurisdiction, he continues, “satisfies constitutional due process.”

 at 3 - 4.

       Barry’s position is in stark conflict with Virgin Islands jurisprudence which

clearly requires two separate showings for a court to exercise personal jurisdiction.

Merely satisfying the requirement of the Long Arm Statute does not ipso facto

establish jurisdiction under constitutional due process. Separate and apart from

statutory jurisdiction, a plaintiff must establish either general or specific jurisdiction.

Molloy, 

. Further, Barry’s fraud claims do not, as required by the
Barry v. Philip Morris, Et. Al.
SX-20-CV-722

Memorandum Opinion
Page 13

Long Arm Statute and under constitutional due process, arise out of the mere

transacting of business or contracting to supply products by Reynolds. See Molloy,

at 182 (stating, to establish specific jurisdiction the court must find that the

defendant’s claim arises out of the requisite minimum contacts.); 5 V.I.C. §4903(b).

Accordingly, this contact, standing alone, is insufficient to establish specific

personal jurisdiction over Counts 5 and 6. Johnson v. HuffingtonPost.com, Inc., 

 (5th Cir. 2021) (stating “a defendant may have many meaningful

ties to the forum, but if they do not connect to the plaintiff’s claim, they cannot

sustain our power to hear it.”)

           B) National Broadcasting of False Statements and Misrepresentations

       Barry alleges Reynolds used national mediums to broadcast false

statements and misrepresentations on the national stage designed to reach across

the entire United States and the Virgin Islands. Opp. to Mot. to Dismiss, p 6.

Such mediums, he claims, included: i) national news networks like ABC, CBS, and

NBC; ii) magazines with nationwide circulation; and iii) local newspapers like “the

Avis, Daily News and other national newspapers” that were distributed and

available for sale in the U.S. Virgin Islands. 

     Barry failed to support this

particular allegation with affidavits or other competent evidence. Further, he failed

to specify the details of the alleged false statements or misrepresentations, how
Barry v. Philip Morris, Et. Al.
SX-20-CV-722

Memorandum Opinion
Page 14

they were distributed to the Virgin Islands or who distributed them here, so as to

allow for meaningful judicial analysis. Such conclusory unsupported allegations

are insufficient to support specific personal jurisdiction. Molloy, 

.

       Even if Barry were to establish specific instances of national fraudulent

advertising that made its way to the territory, this Court would still lack personal

jurisdiction over his claims absent a showing that Reynolds targeted the Virgin

Islands.    To establish specific personal jurisdiction, Barry must show that

Reynolds purposefully directed the misrepresentations to this forum. As the New

Jersey District Court stated in Oyebanji v. Palmetto Vacation Rentals LLC, when it

found the plaintiff failed to establish specific personal jurisdiction,

       Oyebanji argues that Palmetto directed its activities at the forum by
       virtue of its "aggressive advertising nationwide." (Opp Br. at 5.) But
       absent evidence that Palmetto targeted its advertising efforts at New
       Jersey in particular, specific jurisdiction will not lie. See Benitez v JMC
       Recycling Sys., Ltd., 

 (D.N.J.
       2015) ("[T]argeting the national market is not enough to impute
       jurisdiction to all the forum states.") (internal quotation marks and
       citation omitted).

Civil No. 20-cv-8983, 

, at *7 - 8 (D.N.J. Aug. 20,

2021). An intentional tort, as Barry alleges in Counts 5 and 6, requires a showing

that the defendant “expressly aimed its tortious conduct at the forum.” Danziger &

De Llano, LLP v. Mogan Verkamp LLC, 

 (3d Cir. 2020) citing
Barry v. Philip Morris, Et. Al.
SX-20-CV-722

Memorandum Opinion
Page 15

IMO Industries, Inc. v. Kiekert AG, 

 (3d Cir. 1998). Barry

made no such showing.

           C) Creation of a “Controversy”

       Barry alleges Reynolds and its co-conspirators engaged in nationwide

efforts to create a “controversy” regarding cigarettes and health. Opp. to Mot. to

Dismiss, p 8. He claims they targeted the national market including the Virgin

Islands by employing fraudulent advertisements and marketed materials,

misinformation, and co-conspirator statements to convince Virgin Islanders to

begin or continue smoking cigarettes. 

 As with his allegations in Section “B”

above, Barry relies solely on his complaint allegations and failed to support them

with affidavits or other competent evidence. They are thus insufficient to support

specific personal jurisdiction.

           D) Marketing and Sale of Cigarettes in the Virgin Islands

       Barry claims that Reynolds distributed its cigarettes in the Virgin Islands and

that its fraud could not have been consummated here without the sale and use of

its cigarette products by Virgin Islanders. Thus, he argues, “Plaintiff’s fraud claims

‘arise out of or relate to’ Reynolds’ sale, distribution, marketing, advertising, and

business activities in the Virgin Islands.” Opp. to Mot. to Dismiss, p 10. The logic

of this argument escapes the Court. Barry appears to argue that since Reynolds’
Barry v. Philip Morris, Et. Al.
SX-20-CV-722

Memorandum Opinion
Page 16

fraud could not have occurred without the sale and use of cigarette products in the

Virgin Islands, Barry’s fraud claims therefore arise out of or relate to such sale and

use of cigarettes. This Court disagrees.

       To establish fraud or conspiracy to commit fraud as per Counts 5 and 6,

Barry must prove that: i) Reynolds misrepresented a material fact, opinion,

intention, or law; (ii) Reynolds knew or had reason to believe the representation

was false; (iii) Reynolds made the representation for the purpose of inducing Barry

to act or refrain from acting; (iv) Barry justifiably relied on the misrepresentation;

and (v) Barry’s reliance caused him a pecuniary loss. Love Peace v. Banco

Popular de Puerto Rico, 

, 291 (V.I. 2021). Barry’s claims arise out of

an alleged fraudulent misrepresentation. It is that tortious conduct, i.e., the

misrepresentation, that Barry must show Reynolds directed to the Virgin Islands.

No misrepresentation is committed by the mere non- tortious sale of cigarettes by

Reynolds or use thereof by Virgin Islanders. Further, the mere marketing and

selling cigarettes to the VI, alone, do not put Reynolds on notice that it may be

haled into VI courts to defend a fraud claim. As such, Barry’s fraud claims do not

arise out of or relate to the mere sale, or use, of cigarettes in the Virgin Islands.

           E) Cigarette Commercials Directed to the Virgin Islands

       Barry alleges that Reynolds “purposefully directed cigarette commercials via
Barry v. Philip Morris, Et. Al.
SX-20-CV-722

Memorandum Opinion
Page 17

radio broadcast into the U.S. Virgin Islands, despite a U.S. ban on tobacco on all

radio and television advertising that began in 197l.” Opp. to Mot. to Dismiss, p 10.

This contact/conduct, he claims, occurred in the mid-1970s through Reynolds’

sponsorship of radio advertisements on a station (ZBVI) in nearby British Virgin

Islands, that carried a form of its fraudulent conduct into the Virgin Islands. 

 The

fraud, he argues, is the reporting of “the controversy”.         Barry supports this

allegation with a May 23, 1974 letter authored by an advertising agency (i.e., Post-

Keyes-Gardner Inc.) stating that ZBVI is the No. 1 station in St. Croix and is tied

for No. 2 in St. Thomas. Opp. to Mot. to Dismiss, Ex. B. The letter further states

that the competition, including Reynolds, used the station to advertise in 1973. 

For several reasons this alleged contact fails to support specific jurisdiction:

       i)     Merely establishing that Reynolds advertised on ZBVI with the
              intention of reaching Virgin Islands residents does not establish
              a relevant contact as it devoid of any alleged misrepresentation;

       ii)    The letter establishes the author’s, not Reynolds’, knowledge
              that ZBVI was the No. 1 or 2 station in the Virgin Islands;

       iii)   Based on the letter, Reynolds advertised on ZBVI in 1973 when
              Barry was not in the Virgin Islands;

       iv)    Barry does not allege that he saw nor heard the alleged
              advertisement in the Virgin Islands, and he did not arrive here
              until 1978, years after the advertisement;

       v)     The letter does not state what brand of cigarettes was
Barry v. Philip Morris, Et. Al.
SX-20-CV-722

Memorandum Opinion
Page 18

                advertised; and

       vi)      The letter does not state the substance of any advertisement
                issued on behalf of Reynolds so as to permit determination as
                to whether Barry’s claim arises therefrom.

Accordingly, the letter is incompetent to support specific jurisdiction.

             F) Nationwide Propagation of “The Controversy”

       Barry also claims Reynolds engaged in a nationwide conspiracy of

propagating “the controversy” that was reported in Virgin Islands newspapers and

broadcasted on Virgin Islands radios and television stations. Opp. to Mot. to

Dismiss, pp 10 - 11. He further argues that the contacts that Reynolds created

with the Virgin Islands was its own choice and not random, isolated or fortuitous.

. Barry relies on mere complaint allegations. He has not supported

these allegations with any affidavit or competent evidence. Further, the allegation

lacks the required specificity to assess specific jurisdiction.       Barry has not

specified when the alleged advertisement occurred, the content of the

advertisement, whether or how Reynolds directed the advertisement to the Virgin

Islands (i.e., created the contact) or whether Barry even saw or heard these news

reports.     This unsupported allegation is thus incompetent to support specific

jurisdiction.

             G) Advertising of Filtered Cigarettes on Packs and In National Magazines
Barry v. Philip Morris, Et. Al.
SX-20-CV-722

Memorandum Opinion
Page 19

              or News

       Barry claims Reynolds purposefully directed tortious conduct toward the

Virgin Islands “by the use of advertising ‘filtered’ cigarettes.” Opp. to Mot. to

Dismiss, p 11. Citing testimony by his expert, Robert Proctor, he argues that the

mere sale of cigarettes to the Virgin Islands in packs labeled as “filtered”

constitutes a fraudulent messaging directed to the Virgin Islands. Opp. to Mot. to

Dismiss, p 11, Ex. C. Barry also relies on language in R.J. Reynolds Tobacco Co.

v. Burgess, 

 (Fla. 4th DCA 2020), that “the term ‘filter’ was itself a

deceptive statement,” to support his argument. Such reliance is misplaced.

       The Burgess court referred to the use of the term as part of the tobacco

companies’ aggressive promotion of filtered cigarettes generally.            It was not

referring to the placement of the word “filter” on cigarette packs. In fact, one year

after Burgess, a sister 4th Circuit court noted that it was unable to conclude that

labelling a cigarette that has a filter as ‘filtered” is inherently fraudulent. Philip

Morris USA v. Principe, 

, 831 n 10 (Fla. 3d DCA 2021) (stating “we

are unable to conclude, based on our de novo review of this record, that either

PM’s manufacturing of filtered cigarettes, or its labelling a cigarette that has a filter

as ‘filter,’ is inherently fraudulent.”). Barry points to nothing on the cigarette packs

that suggests smoking filtered cigarettes are safer.          From all accounts, the
Barry v. Philip Morris, Et. Al.
SX-20-CV-722

Memorandum Opinion
Page 20

cigarettes were in fact filtered.    This Court thus sees no false or fraudulent

messaging communicated solely by placing the label “filter” on cigarette packs.

The scenario would have differed if such labeling coincided with other

messages/advertisements, directed at the Virgin Islands, stating that filtered

cigarettes were safer.        However, Barry has not shown any such messages

directed by Reynolds to the Virgin Islands upon which he relied. This Court thus

concludes that the mere labeling of cigarettes as filtered is not inherently

fraudulent. If it was, personal jurisdiction over fraud claims against Reynolds

would lie wherever its cigarettes end up.

       In further support of this claim, Barry cites to testimony by his wife, Silvia

Barry, that they “saw Winston cigarette advertisements, in Virgin Islands

publications like Time Magazine, touting filter-tips removing harmful materials from

cigarettes, which Plaintiff believed to be true.” Opp. to Mot. to Dismiss, p 12. He

supports this allegation with Mrs. Barry’s deposition testimony. 

 Ex. D. A review

of her deposition reveals the following statements by Mrs. Barry:

       a. she and Barry had conversations about filter tips taking out bad
          stuff from cigarettes;

       b. she saw, and discussed with Barry, advertisements for Winston
          cigarettes that had filtered tips, after they moved to the Virgin
          Islands;
Barry v. Philip Morris, Et. Al.
SX-20-CV-722

Memorandum Opinion
Page 21

       c. based on the advertisements, Barry believed that filtered tip
          cigarettes took out all the bad stuff;

       d. she and Barry saw, and discussed news programs on TV where a
          Black lady said there is no harm in smoking;

       e. Barry smoked Marlboro filtered cigarettes before he switched to
          Winston;

           and

       f. she saw Winston cigarette advertisements in Time Magazine.

 Ex. D (Dep. of S. Barry). Mrs. Barry also testified that while in England she

and Barry saw, and discussed, an advertisement about filtered tip cigarettes in a

magazine at a doctor’s office. Reply to Opp. to Mot. to Dismiss, Ex. B (Dep. of S.

Barry at 36 – 37. According to Barry, he switched to filtered tip cigarettes because

he thought, based on advertisements, that it filtered out nicotine and was safer.

.    This evidence demonstrates Barry’s reliance on an advertisement

regarding filtered tip cigarettes he learned about while in the Virgin Islands. The

only source mentioned is Time Magazine.         Barry does not explain how the

magazine made it to the Virgin Islands. There is thus no evidence that Reynolds

created this contact. Any third party (person or business) in the Virgin Islands

could have subscribed to Time Magazine and thereby cause its presence in the

territory. Barry, however, has not linked the magazine’s presence in this forum to
Barry v. Philip Morris, Et. Al.
SX-20-CV-722

Memorandum Opinion
Page 22

Reynolds. This contact is thus insufficient to support specific personal jurisdiction

over Barry’s fraud claims.

       Other courts have found the absence of jurisdiction under similar

circumstances. In Miller Indus. Towing Equip. v. NRC Indus., the plaintiff sued

NRC Industries (NRC), in Tennessee, for patent infringement related to towing

vehicles. NRC moved to dismiss for lack of personal jurisdiction arguing lack of

sufficient forum contacts. Plaintiff claimed that NRC’s maintenance of

advertisements regarding wreckers in two magazines that had many Tennessee

subscribers was sufficient. The Tennessee District Court held that

       there is no evidence that Tennessee was specifically targeted in these
       advertisements. Instead, these advertisements are targeting the
       entire national market. Therefore, these advertisements do not
       support jurisdiction.

No. 1:19-CV-00095, 

, at *9 (E.D. Tenn Apr 16,

2020). Here Barry likewise points to advertising that targets the entire nation, not

specifically the Virgin Islands.

       In Chorost V. Rotor Am. Inc., the plaintiff filed suit in Arizona against Spain

registered Rotor Componentes Technologicos due to a bicycle crash. He had

purchased the bicycle as a result of internet advertisements he viewed while in

Arizona. The advertisements were placed in publications with national distribution.
Barry v. Philip Morris, Et. Al.
SX-20-CV-722

Memorandum Opinion
Page 23

In finding it was without jurisdiction to entertain the plaintiff’s claim, the Arizona

District Court stated

       There is no evidence that digital advertising targeted Arizona; rather,
       it was available to people in any forum.

No. CV-21-235, 

, at *20 (D. Arizona Aug 8, 2022);

accord Ogdon v. Grand Canyon Univ. Inc., No. 1:20-cv-709, 

 (E.D. Calif. Mar. 22, 2022) (declining to exercise personal jurisdiction over

alleged fraudulent advertising claim and stating, “GCE targets their advertisements

to anyone in the country who searches for online degree programs, not to

Californians specifically. Such nationwide marketing activities do not show that

GCE purposefully directed its activities to California.”).      Similarly, Reynolds’

nationwide marketing activities, alleged by Barry, do not show that Reynolds

purposely directed its activities to the Virgin Islands.

       In Johnson v. TheHuffingonpost.com, Inc., plaintiff Charles Johnson sued

defendant HuffPost, in Texas, alleging it posted libelous statements about him on

its website.    HuffPost was a citizen of Delaware and New York, not Texas.

HuffPost moved to dismiss for lack of personal jurisdiction. Johnson argued that

HuffPost’s website is visible in Texas; it sells ad-free experience and merchandise

to everyone; including Texans, Texas had contracted with HuffPost to show ads
Barry v. Philip Morris, Et. Al.
SX-20-CV-722

Memorandum Opinion
Page 24

on its site; and HuffPost collected information about its viewers including their

location. 

 (5th Cir. 2021). The Fifth Circuit concluded that, though

HuffPost had an interactive website, its story about Johnson had no ties to Texas.

. It reasoned that the mere accessibility of HuffPost’s website in Texas

where Texans could access it did not show HuffPost purposefully availed itself of

Texas. 

. Likewise, the mere availability of magazines or news in the

Virgin Islands containing false representations does not show Reynolds directed a

misrepresentation to this forum.

       H) Publication of TIR Committee’s Pledge in Virgin Islands Daily News

       Barry claims that Reynolds directed its fraudulent conduct into the Virgin

Islands through statements by its industry spokespersons that were published in

Virgin Islands newspapers. Opp. to Mot. to Dismiss, p 12. He cites to a June 25,

1954 article printed in the Virgin Islands Daily News stating that

       The leading cigarette manufacturers, have formed the Tobacco
       Industry Research Committee and pledged its “aid and assistance to
       the research effort into all phases of tobacco use and health.”

Opp to Mot. to Dismiss, Ex. E. Barry argues this statement was false as the

committee’s purpose was to the contrary. It was “to assist in spreading the false

‘controversy’ that cigarettes are not addictive and cigarette smoke is not

dangerous.” Id. at 13. For several reasons, Barry’s argument lacks merit.
Barry v. Philip Morris, Et. Al.
SX-20-CV-722

Memorandum Opinion
Page 25

       The alleged fraud is the pledge by the research committee. The article

does not state where or when the pledge was made. It represents a news reporter

repeating the pledge. This does not establish that the committee or Reynolds

directed the pledge anywhere. Further, the article represents news that the Virgin

Islands Daily News, not Reynolds, chose to print in the Virgin Islands. The mere

fact that the article appears in the Virgin Islands does not establish that Reynolds

was responsible for its appearance.       Additionally, Barry was not in the Virgin

Islands in 1954. He did not arrive until 24 years after the publication (i.e., in 1978).

Thus, even if Reynolds directed the article to the Virgin Islands, Barry could not

have relied on it. In fact, he does not allege that he saw, heard about, or relied

upon that article. As such, his fraud claims do not arise therefrom. Accordingly,

this contact, involving an alleged false pledge reported in Virgin Islands

newspapers, does not support specific personal jurisdiction over Barry’s fraud

claims.

       I) Publication in St. Croix Avis, of TIRC’s Response To Environmental
       Protection Agency (EPA) Draft Report on Second-hand Smoking

       Barry claims Reynolds carried its fraudulent misrepresentations into the

Virgin Islands through the TIRC’s response to a draft finding by the EPA that

second-hand tobacco smoke causes 32,000 heart disease deaths among non-
Barry v. Philip Morris, Et. Al.
SX-20-CV-722

Memorandum Opinion
Page 26

smokers. Opp. to Mot. to Dismiss, p 13. Barry claims the TIRC pressed EPA to

withdraw their findings claiming that it would “be most inappropriate to include this

paper in its present from in EPA Compendium of Technical Information.” 

 The

New York article was reported in the St. Croix Avis on June 17-18, 1990. Ex. F.

       This Court is not convinced that TIRC’s mere statement that it would be

inappropriate for EPA to include its finding “in its present form” in EPA’s

Compendium of Technical Information, constitutes a fraud. Even if it did, Barry

does not explain how Reynold’s directed the article to the Virgin Islands. In fact,

the statement was directed at EPA, not the general public or the Virgin Islands. It

appeared in an article that the St. Croix Avis chose to report on. Further, Barry

does not allege that he saw, heard about, or relied upon that article. As such, his

fraud claims do not arise therefrom. Accordingly, this contact does not support

specific personal jurisdiction over Barry’s fraud claims.

       J) Publication, in St. Croix Avis, of Industry Statement Regarding Filters
         Protecting Health

       Barry submits an Oregon article published in the St. Croix Avis on November

24-25, 1988, as a contact in support of his fraud claim. It contains a statement by

the tobacco industry that filters are “the greatest health protection in cigarette

history”. 

 Ex. G. This represents yet another industry article that the St. Croix
Barry v. Philip Morris, Et. Al.
SX-20-CV-722

Memorandum Opinion
Page 27

Avis chose to report on. Barry has failed to show that Reynolds directed the

statement to the Virgin Islands. Even if it did, he does not allege that he saw,

heard about, or relied upon, that particular article. As such, his fraud claims do

not arise therefrom. Accordingly, this contact does not support specific personal

jurisdiction over Reynolds for Barry’s fraud claims.

       K) Publication of TIRC’s Pledge in St. Croix Avis

       Barry claims that Reynolds continued its fraudulent misrepresentations into

the Virgin Islands as reflected in a March 16, 1979 advertisement in the St. Croix

Avis. There, the tobacco industry stated that the trend to filtered low-tar cigarettes

was to thank for a reduction in indicators of disease and that most non-smokers

are O.K. with smokers. Opp. to Mot. to Dismiss, p 14; Ex. H. These statements,

Barry argues, were knowingly false. He fails, nevertheless, to explain how the

article appeared in the St. Croix Avis. This is another example of a Virgin Islands

newspaper reporting national news.          The mere appearance of an article

containing statements by the tobacco industry does not establish that Reynolds

directed the statements to the Virgin Islands. Even if it did, Barry does not allege

that he saw, heard about, or relied upon, that article. As such, his fraud claims do

not arise therefrom. Accordingly, this contact does not support specific personal

jurisdiction over Barry’s fraud claims.
Barry v. Philip Morris, Et. Al.
SX-20-CV-722

Memorandum Opinion
Page 28

       L) Advertisements Designed for the Virgin Islands

       Barry claims that Reynolds tailored specific marketing advertisements to the

Virgin Islands for its Winston cigarettes. Opp. to Mot. to Dismiss, p 14. In the

1970s and later, he claims, Reynolds ran advertisements in the Virgin Islands Daily

News depicting happy, healthy energetic people enjoying the day at Virgin Islands

beaches or hotels. In support, he submitted copies of 12 advertisements. 

 Ex.

“I”. Three of them are dated 1973 (i.e., before Barry arrived.) The other nine are

dated 1978. None of them contain any fraudulent representation. In fact, each

one clearly states a warning from the Surgeon General that “cigarette smoking is

dangerous to your health.” 

 These ads, even if directed to the Virgin Islands by

Reynolds, contain no misrepresentation to support Barry’s fraud claims.         His

claims thus do not arise out of such contact.

       M) Television Appearance by Tobacco Spokespersons in St. Croix

       Barry claims he saw “tobacco spokespersons” appearing on television in St.

Croix stating that cigarettes were not harmful. Opp. to Mot. to Dismiss, p 14. He

does not identify a particular advertisement or the date or time period when he saw

it. Instead, he identifies a program aired on 20/20 ABC News that was carried by

Virgin Islands affiliate WSVI TV in 1983 “that matches the description” he testified

about in his deposition. 

 The spokesperson, Barry claims, stated that cigarettes
Barry v. Philip Morris, Et. Al.
SX-20-CV-722

Memorandum Opinion
Page 29

may or may not be harmful, the case is still open, and we don’t know. 

.

Here, it is unclear whether Barry saw the particular ABC News advertisement aired

in 1983.     Even if    he did, he has submitted no affidavit or other competent

evidence that he relied on any of these advertisements to start or continue

smoking. His generalized complaint allegations are insufficient for this purpose.

Further, as explained above, the re-broadcasting of national news by a Virgin

Islands news agency does not establish that Reynolds directed the news to this

territory. Since the broadcasting of the news in this forum is not shown to be a

contact created by Reynolds, it cannot serve as a basis for specific personal

jurisdiction.

       Barry points to other misrepresentations by tobacco spokespersons aired in

the Virgin Islands. 

 He submits no affidavit or competent evidence that he relied

on those statements. They too represent re-broadcastings of national news and

do not establish that Reynolds directed them to the Virgin Islands forum.

       2) Barry’s List of Supportive Cases Are Inapposite

       Barry further supports his argument for specific jurisdiction by citing to 11

cases he claims, “found personal jurisdiction over the fraud and conspiracy, even

though the Tobacco Companies’ instituted a nationwide campaign; exactly

because this fraud and conspiracy entered into every State and Territory of the
Barry v. Philip Morris, Et. Al.
SX-20-CV-722

Memorandum Opinion
Page 30

United States.” Opp. to Mot. to Dismiss, pp 6 -8, n 7. A review of each and every

one of those cases reveals no such finding. Each of them recites findings or

evidence that tobacco companies engaged various attempts to deceive the

American public regarding the dangers of cigarette smoking. Not one, however,

involved an issue or finding regarding personal jurisdiction or that any such finding

was based on the entry of fraud and conspiracy into every state and territory or on

nationwide advertising. Barry’s reliance on those cases is thus totally misplaced.

They are inapposite and irrelevant to any issue before this Court. 6


       6
        Barry submitted a list of other cases, after the hearing in this matter, some of which he
argued during the hearing, for consideration by the court. Each is addressed in turn.

        Keeton v. Hustler Magazine, Inc., 

 (1984) and Walden v. Fiore, 

(2014) were cited to support the notion of national advertising entering the forum state. In
Keeton, the defendant, Hustler Magazine, sold over 10,000 copies of its magazines each month
to the forum state in which it was sued. The plaintiff claimed five issues of the magazine
contained libelous statements of her. The court found that Hustler’s regular circulation of
magazines in the forum state supported its jurisdiction. Here no circulation of any national
magazine has been shown to have been performed by Reynolds. Keeton is thus clearly
distinguishable.

         Barry cited Ford Motor Comp. v. Mont. Eighth Judicial Dist. Ct., 

 (2021) to
support jurisdiction over other wrongful conduct related to negligence and products liability. Ford
is distinguishable, however. There, the Supreme Court found jurisdiction in the forum states in
which the defendant Ford was sued because Ford had extensively promoted, sold, and serviced
the same type of vehicles in the forum state. 

. It did not matter, as Ford claimed, that
the plaintiffs bought their Ford vehicles in other states. The court found there was an affiliation
between Ford, the forum, and the litigation. Here, there is no relation between Reynolds mere
sale of cigarettes in the Virgin Islands and Barry’s fraud claims. A closer analogy to Ford would
be the argument that Barry could bring his negligence and products liability claims in the Virgin
Islands even if he purchased his Reynolds cigarettes outside the Virgin Islands. This rationale
would apply since Reynolds had other related connections here, i.e., the sale of its cigarettes.
The connection to his fraud claims, however, are absent.
Barry v. Philip Morris, Et. Al.
SX-20-CV-722

Memorandum Opinion
Page 31

                                        CONCLUSION

       In sum, all of Barry’s alleged contacts are insufficient to establish specific

personal jurisdiction for one or more of the following reasons:

       a. they are unsupported by affidavit or other competent evidence;

       b. they contain no fraudulent misrepresentation;

       c. Barry has not established that he was aware of or relied upon
          them;

       d. Barry’s fraud claims do not arise out of, or relate to, the contacts;
          and

       e. Barry has failed to show that Reynolds created the contacts or
          directed them to the Virgin Islands forum;

With respect to fraudulent messages allegedly circulated through national

magazines, that ended up in the territory, Barry has failed to show Reynolds was

“circulating magazines to “deliberately exploit’ a market in [this] forum.” Walden,

. As the Walden court stated, “it is the defendant, not the plaintiff

or third parties, who must create contacts with the forum state.” Walden, 571 U.S.




        O’Connor v. Sandy Lane Hotel Co., 

 (3d Cir. 2007) was cited to show
the need to consider jurisdictional reasonableness. The Court finds this case not relevant as it
does not reach the issue of whether jurisdiction comports with fair play and justice.
        Having reviewed Walden v. Fiore, 

 (2014) and Molloy V. Independence Blue
Cross, 

 (2012), the Court sees no principle that mitigates in favor of jurisdiction under
the facts of the instant case.
Barry v. Philip Morris, Et. Al.
SX-20-CV-722

Memorandum Opinion
Page 32

at 291. This Court thus concludes that Barry has failed to establish a prima facie

case for jurisdiction over his fraud claims in Counts 5 and 6. Accordingly, the Court

will grant Reynolds’ motion to dismiss Counts 5 and 6 of Barry’s complaint. An

order consistent herewith will be issued.




                                                 _________________________
                                                 ALPHONSO G. ANDREWS, JR.
                                                   Superior Court Judge
Attest:
TAMARA CHARLES
CLERK OF THE COURT

____________________________
COURT CLERK III
 08-10-2023
____________________________
DATE