FireClean v Tuohy Opinion (PDF)

Case 1:16-cv-00294-JCC-MSN Document 48 Filed 07/21/16 Page 1 of 30 PageID# 772

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
FIRECLEAN, LLC,

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Plaintiff,
v.
ANDREW TUOHY, ET AL.,
Defendants.

Case No. 1:16-cv-0294

MEMORANDUM OPINION
This online defamation lawsuit is before the Court on
Defendants’ motions to dismiss for lack of personal jurisdiction
and failure to state claims upon which relief can be granted.
For the following reasons, the Court will dismiss for lack of
personal jurisdiction.

Accordingly, the Court will not reach

Defendants’ arguments for dismissal on the merits.
I.

Background1

Plaintiff FireClean, LLC (“Fireclean”) is a Virginia
limited liability company that manufactures gun oil.
Fireclean’s members are natural persons residing in Virginia.

1

Because the Court has not conducted an evidentiary
hearing, the facts are stated in the light most favorable to
Plaintiff and all factual disputes are resolved in Plaintiff’s
favor. See Grayson v. Anderson, 816 F.3d 262, 268 (4th Cir.
2016); Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs.,
Inc., 334 F.3d 390, 396 (4th Cir. 2003).
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(Compl. [Dkt. 1] ¶ 1.)

Defendant Andrew Tuohy (“Tuohy”) is a

citizen and resident of Arizona who maintains a firearms blog
and accompanying Facebook page.

(Compl. ¶¶ 2, 10.)

Defendant

Everett Baker (“Baker”) is a chemistry student at a
Massachusetts technical institute, a citizen of New Hampshire,
and maintains a firearms blog.2

(Compl. ¶¶ 2, 17; Def. Baker

Mem. in Supp. [Dkt. 15] at 1.)
Plaintiff manufactures and sells a patent-pending oil
called “FIREClean” (“FIREClean” or the “Product”) that is
advertised to reduce carbon residue buildup in firearms.
Brothers Ed and David Sugg invented the Product and own
Plaintiff Fireclean.

Their Product is a blend of at least three

natural oils derived from a plant, vegetable, fruit, shrub,
flower, or tree nut.

(Compl. ¶ 25.)

Plaintiff alleges that the

Product is not common canola or soybean oil, and is not Crisco
or any other relabeled or repackaged consumer product.

(Compl.

¶¶ 26-32.)
Around August 2015, various blogs and social media
websites began to publish that FIREClean is nothing more than a
common vegetable oil or Crisco.

2

(Compl. ¶ 38; Compl. Ex. C

This case satisfies the subject matter jurisdiction
requirements of 28 U.S.C. § 1332(a) because Plaintiff is a
citizen of Virginia and Defendants are citizens of Arizona and
New Hampshire. Furthermore, Plaintiff estimates its damages at
$150,000 to date. (Compl. ¶ 136.)
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[Dkt. 1-3] at 1.)

Nonparty George Fennell, who makes a

competing gun oil, appears to be the originator of those
criticisms.

(Compl. ¶ 66; Compl. Ex. C at 1.)3

Fennell posted a

video online purporting to demonstrate that FIREClean was
“pretty much a Crisco oil” and another video allegedly shows
FIREClean and Crisco smoking and burning on a stove at the same
temperature.

(Compl. ¶ 66; Compl. Ex. C at 1.)

Plaintiff filed

a defamation and false advertising lawsuit against Fennell on
the same day it filed the present lawsuit.

See FireClean, LLC

v. Fennell, 1:16-cv-293 (E.D. Va. filed Feb. 17, 2016).4
Defendant Tuohy maintains a firearms website called
Vuurwapen Blog.5

(Compl. ¶ 13.)

Around August 2015, Tuohy

became interested in the online allegations that FIREClean is
chemically indistinguishable from common cooking oil.
¶ 66; Compl. Ex. C at 1; Tuohy Decl. [Dkt. 12-2] ¶ 9.)

(Compl.
Tuohy

sent Ed Sugg a Facebook message asking “Ed, Do you guys have a
response to the claims that FireClean is just Crisco?”

3

(Compl.

Page number citations for exhibits refer to the
pagination assigned by the Electronic Case Management system.
4
On July 1, 2016, the Honorable Judge Ellis denied
Fennell’s motion to transfer to a more convenient forum and
denied a motion to dismiss for failure to state a claim. See
Order, FireClean, LLC v. Fennell, 1:16-cv-293 (E.D. Va. July 1,
2016), ECF No. 49. Fennell did not challenge personal
jurisdiction in Virginia.
5
“Vuurwapen” means “firearm” in Dutch. (Def. Tuohy
Mem. in Supp. [Dkt. 12-1] at 1.)
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¶ 34.)

Ed briefly responded, “Hi Andrew-categorically deny.

If

you let me know where you are hearing it I would appreciate it.
If it’s a competitor it will generate a strong response.
Thanks!

Ed.”

(Compl. ¶ 35; Compl. Ex. B [Dkt. 1-2].)

Despite that assurance, Tuohy remained curious and
continued to investigate the chemical composition of FIREClean.
In early September 2015, Tuohy asked a chemistry professor at
the University of Arizona to perform a test called an Infrared
Spectroscopy to compare the chemical structures of FIREClean,
canola oil, and soybean oil.

(Compl. ¶ 39.)

Tuohy informed Ed

Sugg by email that the professor’s testing indicated FIREClean
“was probably a modern unsaturated vegetable oil virtually the
same as many oils used for cooking.”
36-1] at 5.)

(Sugg Decl. Ex. 1 [Dkt.

Tuohy planned to publish a blog article on the

tests and asked Ed for a response.

(Id.)

Through “several

emails,” Ed declined to comment on FIREClean’s formula, but
requested several days to review the article and to draft a
response.

(Id.; Tuohy Decl. ¶ 10.)
The next day, September 12, 2015, Tuohy published the

article on his blog under the title “Infrared Spectroscopy of
Fireclean and Crisco Oils.”

(Compl. Ex. C [Dkt. 1-3].)

The

article summarized the recent allegations that FIREClean was
“nothing more than Crisco vegetable oil,” discussed the
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chemistry professor’s testing, and summarized the professor’s
findings as showing that “FireClean is probably a modern
unsaturated vegetable oil virtually the same as many oils used
for cooking.”

(Compl. Ex. C at 3 (emphasis in original).)

The

article also noted that Tuohy “spoke at length” with Ed Sugg,
who assured Tuohy that neither Crisco nor soybean oil is part of
the FIREClean formula.

(Id. at 1.)

Despite that assurance, the

professor’s testing led Tuohy to “not recommend FireClean be
used by members of the military.”

(Id. at 4.)

Two days later, Tuohy posted an article on the
Vuurwapen Blog entitled “Where There’s Smoke, There’s Liars.”
(See Compl. Ex. E [Dkt. 1-5].)

The article accused the video’s

producer and the Sugg brothers of rigging the results of a test
that was meant to compare the carbon-reducing properties of
FIREClean and another gun oil.

Tuohy explained why he believed

the test was rigged and wrote that his discovery “calls into
question any claim or statement made by FireClean as a company
and Ed and Dave Sugg as individuals.”

(Compl. ¶ 73.)

The above articles stirred the controversy regarding
FIREClean’s chemical composition and led to a torrent of
critical online commentary, including comments on Tuohy’s blog,
negative reviews on Amazon, and at least one spin-off article

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repeating Tuohy’s Infrared Spectroscopy findings.

(See Compl.

¶¶ 60-65, 88-98.)
Defendant Everett Baker, a chemistry undergraduate
student in Massachusetts who maintains a firearms blog, saw
Tuohy’s article and became interested in the science discussed
therein.

(Tuohy Decl. [Dkt. 12-2] ¶ 9.)

Baker contacted Tuohy

and offered to perform a new round of tests using his
university’s sophisticated equipment.

(Compl. ¶ 212; Compl. Ex.

J [Dkt. 1-10] at 1; Compl. Ex. K [Dkt. 1-11] at 2.)

Tuohy liked

the idea of additional testing and sent Baker some FIREClean and
other oils to serve as the samples.

(Compl. ¶ 213.)

Baker then

worked under the supervision of his professors in Massachusetts
to compare FIREClean with other oils through an Infrared
Spectroscopy6 and a Nuclear Magnetic Resonance Spectroscopy7.

6

According to Baker’s report, an Infrared Spectroscopy
“uses infrared light to bend and stretch the bonds in organic
molecules. Different bonds have different strengths, so it will
take different amounts of energy to cause a change. . . .
Depending on the two atoms bonded, a given wavelength of IR
light will cause bonds to stretch, bend, rock, or twist. By
looking at the wavelength of light that the sample absorbs, we
can know the energy level that is going into changing the
bonds.” (Compl. Ex. K at 6-7.) The instrument performing the
test produces a report that shows “what bonds the samples have
in common.” (Id. at 7.)
7
Baker describes the Nuclear Magnetic Resonance
Spectroscopy as follows: “NMR is a complicated but extremely
useful method of analysis. Several of my professors have
described it as ‘the gold standard in analytical chemistry,’ and
for good reason. When combined with other methods of analysis
6

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(See Compl. Ex. K.)

On October 19, 2015, Baker posted a summary

of his testing procedures on his firearms blog, Granite State
Guns, under the title “How to Science.”

(Compl. Ex. K.)

The

article, however, did not reveal the test results because Baker
did not want to “beat [Tuohy] to the punch.”

(Id. at 11.)

Tuohy published those results on October 23, 2015, in
a Vuurwapen Blog article entitled “Lies, Errors and Omissions,”
but later changed the title to “A Closer Look at Fireclean and
Canola Oil.”

(Compl. Ex. J.)

The article summarized Baker’s

testing along with the results of three other tests performed in
a different lab by an individual with a Ph.D. in chemistry.
(Id. at 1.)

Before quoting from the scientists’ reports at

length, Tuohy summarized that “According to every PhD who looked
at the NMR results, FireClean and Canola oil appear to be
‘effectively’ or ‘nearly’ identical.”
original).)

(Id. at 1 (emphasis in

After disclosing the scientists’ findings, Tuohy

concluded by praising FIREClean as a “good lubricant” that works
“very well as a lubricant for the AR-15.”

(Id. at 5-6.)

But he

also stated that FIREClean is “a common vegetable oil, with no
evidence of additives for corrosion resistance or other
features.”

(Id. at 6.)

Tuohy closed by criticizing Plaintiff

it allows a chemist to determine the molecular structure of
organic molecules.” (Compl. Ex. K at 8.)
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for not being “entirely truthful about [FIREClean], the way it
works, or what it contains,” and misleading consumers into
purchasing FIREClean at a high markup under the belief that the
“bottle of vegetable oil was the most advanced gun lube on the
planet.”

(Id. at 6.)

The same day, Tuohy posted a similarly

critical summary of the article on Vuurwapen’s Facebook page.
(Compl. ¶ 100.)
Six days later, Baker posted a summary of his testing
on his Granite State Guns blog under the title “FIREClean vs.
Canola Oil.”

(Compl. Ex. L [Dkt. 1-12].)

Baker wrote that his

testing made him “confident” saying “that the FIREClean I tested
is canola oil without the addition of any corrosion inhibitors,
stabilizers, or other enhancement materials.”

(Id.)

He closed

his article by writing the following:
I hope I don’t make you distrust lubricant
companies, but question claims before you
blindly believe things.
I spent way too
much on Fireclean at one time too. Don’t be
mad about it, it still works as lubricant,
so use it for that. And when you go to buy
more just know you can get it for less in
the cooking section.
(Compl. ¶ 200.)
Plaintiff alleges that Baker and Tuohy conspired to
prearrange for Baker’s testing to show that FIREClean was
indistinguishable from canola oil.

Defendants allegedly entered

into this conspiracy in an attempt to injure Fireclean’s
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reputation and product, and to attract more viewers to their
blogs.

(Compl. ¶¶ 107, 131-134.)
After the September and October 2015 articles, Tuohy

remained engaged in the debate regarding FIREClean by responding
to comments on his blog and Facebook page.

In January 2016,

Tuohy reposted an article on Facebook that he wrote in 2013
documenting the carbon buildup in an AR-15 rifle after heavy
use.

(Compl. Ex. Q [Dkt. 1-17].)

The reposting noted that

FIREClean was used on the rifle and that the bolt carrier group
of the rifle showed substantial carbon buildup after 5,000
rounds.

(Compl. ¶ 138.)

Tuohy cautioned his readers to “[k]eep

this photo in mind the next time you see an image of a dirty AR
BCG with ‘10,000 rounds and no cleaning’ that looks much wetter
and cleaner than this one.

People lie for the strangest reasons

but one of the more common reasons is to separate you from your
money.”

(Id.)

Plaintiff interprets that statement to disparage

Fireclean and its owners.
In sum, Plaintiff alleges that Baker and Tuohy made
defamatory statements in many of the articles and comments
discussed above, including (1) Tuohy’s September 12, 2015
Infrared Spectroscopy article; (2) Tuohy’s article entitled
“Where There’s Smoke, There’s Liars”; (3) Tuohy’s October 23,
2015 article summarizing the second round of testing; (4)
9