Personal Jurisdiction – Attorney Evan Brown

January 23, 2024 Personal Jurisdiction

RFK Jr.’s online defamation case against Daily Kos writer tossed on jurisdictional grounds

online defamation

Presidential candidate Robert Kennedy Jr. sued Daily Kos writer David Vickery over a blog post Daily Kos published on August 29, 2020. The post described Kennedy’s participation in a Berlin protest against COVID-19 measures and included various allegations that Kennedy asserted were untrue.

Jurisdictional Challenges

Vickery moved to dismiss the case, arguing the federal court sitting in New Hampshire where plaintiff brought the suit had no personal jurisdiction over Vickery. Kennedy argued that the New Hampshire court could exercise specific personal jurisdiction over Vickrey, based on the effects of the alleged defamation in New Hampshire. But Vickery argued his connection with New Hampshire was minimal – he resided in Maine, had not worked in New Hampshire for over a decade, and did not engage in activities connecting him to the state in the context of the Daily Kos article.

Court’s Analysis and Decision

Applying the principles laid out in the well-known case of Calder v. Jones, the court evaluated the “purposeful availment” aspect of personal jurisdiction. The court observed that Kennedy needed to demonstrate that Vickrey intentionally directed his conduct towards New Hampshire, anticipating that the impact of his actions would be felt there. But the court found that Kennedy’s claims did not hold up under this scrutiny. It found that the article was published long before Kennedy’s presidential run, negating any intention to influence New Hampshire voters specifically. And the continuation of the article’s online presence did not equate to republishing, a key consideration in defamation cases.

Conclusion

So the court ruled in favor of Vickrey, granting his motion to dismiss due to the lack of personal jurisdiction. Kennedy’s motion for preliminary discovery and an evidentiary hearing on the jurisdictional issue was also denied.

Kennedy v. Vickrey, 2024 WL 232104 (D.N.H., January 22, 2024)

See also:

December 28, 2012 Litigation, Personal Jurisdiction

Accessing email server from Canada supported personal jurisdiction in the U.S.

MacDermid, Inc. v. Deiter, No. 11-5388 (2d Cir. December 26, 2012)

The Second Circuit reversed a District Court that held it could not exercise personal jurisdiction over a Canadian defendant accused of accessing email servers located in Connecticut.

Defendant lived and worked in Canada for a U.S.-based company having its principal place of business in Connecticut. She knew her company’s email servers were located in Connecticut.

When she learned that she was about to be terminated from her position, she forwarded confidential company data from her work email account to her personal account.

The former employer sued in the U.S. District Court for the District of Connecticut. That court dismissed the case, holding that the relevant Connecticut state statute (Conn. Gen. Stat. § 52-59b(a)) did not authorize the exercise of personal jurisdiction. The lower court found that although the statute authorized personal jurisdiction over one who “uses a computer” in the state, defendant’s alleged computer use took place exclusively in Canada.

Plaintiff-employer sought review with the Second Circuit Court of Appeals. On appeal, the court reversed, holding that the state statute authorized the exercise of personal jurisdiction, and that such exercise comported with due process.

The court found it was “not material” that defendant was outside Connecticut when she accessed her employer’s servers. It held that the statute required only that the computer or network, not the user, be located in the state.

On the due process issue, the court found that defendant had minimum contacts with Connecticut, as she knew the servers were located there. The court also found that she purposefully directed her alleged tortious activity there. After balancing other relevant factors (e.g., location of witnesses, burden on the defendant, Connecticut’s interests in seeing its laws enforced), the court found the exercise of personal jurisdiction to be reasonable.

October 6, 2010 Personal Jurisdiction

Deliberate exploitation of market subjects GoDaddy to personal jurisdiction in Illinois

uBid v. GoDaddy, — F.3d —, 2010 WL 3768075 (7th Cir. September 29, 2010)

uBid sued GoDaddy in federal court in Illinois, alleging cybersquatting. uBid claimed that GoDaddy — an Arizona-based company — intended to profit in bad faith by registering on behalf of its customers certain domain names that were similar to uBid’s trademarks. uBid alleged that GoDaddy would set up parked pages at those domains, displaying sponsored links to sites run by uBid’s competitors.

The district court dismissed the case, finding that the court lacked personal jurisdiction over GoDaddy. uBid sought review with the Seventh Circuit. On appeal, the court reversed, holding that the exercise of personal jurisdiction over GoDaddy would not violate due process.

Contact with the forum state

The court held that GoDaddy’s activities in Illinois were not continuous or systematic enough for the exercise of general jurisdiction. But applying the standards set forth in Keeton v. Hustler, the court found that GoDaddy’s efforts to exploit the Illinois marketplace were done so thoroughly, deliberately and successfully that it would not be unfair for GoDaddy to appear in court in Illinois.

After all, in part through its ads at Wrigley Field, the United Center and Joliet Speedway, not to mention the numerous Super Bowl ads seen in Illinois, GoDaddy had acquired hundreds of thousands of customers in the state.

Relatedness of claims

In finding that GoDaddy’s contacts with Illinois were sufficiently related to the claims in the case, the court similarly looked to the extent and nature of GoDaddy’s advertising and marketing. The court couched the relatedness in terms of a quid pro quo:

[O]ut-of-state residents may avail themselves of the benefits and protections of doing business in a forum state, but they do so in exchange for submitting to jurisdiction in that state for claims arising from or relating to those activities.

In this case, GoDaddy’s connection with Illinois and uBid’s claims made the relatedness quid pro quo “balanced and reasonable.” GoDaddy’s contacts with Illinois alleged in the complaint and the alleged wrongs committed were so “intimately related” that GoDaddy should not have been surprised to find itself sued in Illinois.

Fair play and substantial justice

Finally, the court examined the question of whether the exercise of personal jurisdiction would comport with traditional notions of fair play and substantial justice. Again, the court’s finding relied on the thoroughness with which GoDaddy had exploited the Illinois marketplace.

Race car image courtesy Flickr user Jr 88 Rules under this Creative Commons license.

September 15, 2010 Litigation, Personal Jurisdiction

Internet transactions support exercise of personal jurisdiction over out of state cigarette seller

: Image via Wikipedia

Illinois v. Hemi Group LLC, — F.3d —, 2010 WL 3547647 (7th Cir. September 14, 2010)

Seventh Circuit declines once again to adopt the Zippo test for personal jurisdiction in internet cases.

The State of Illinois filed a civil suit in federal court in Illinois against a New Mexico-based online cigarette seller. The trial court denied the defendant’s motion to dismiss for lack of personal jurisdiction. The defendant sought review with the Seventh Circuit. On appeal, the court affirmed the denial of the motion, holding that the defendant’s website satisfied the minimum contacts requirement for the exercise of personal jurisdiction.

The mechanics of the website were important in the minimum contacts analysis. The site expressly said that the company would sell to consumers in any state except those in New York. The court interpreted this to relate to the personal jurisdiction question in two ways. First, such a statement implicitly said that the defendant would do business in Illinois. Second, it revealed that the defendant knew that it could be subject to the jurisdiction of out-of-state courts (i.e., New York) and also knew how to prevent such an exercise (by not selling there).

In this analysis, the court expressly declined to adopt the well-known Zippo sliding scale test, which evaluates the interactivity of a website in the personal jurisdiction analysis.

Restating a hesitancy “to fashion a special jurisdictional test for Internet-based cases,” the court applied the traditional constitutional approach of the “effects test” found in Calder v. Jones. It made the interesting observation, as it did in Jennings v. AC Hydraulic A/S, that “although technological advances may alter the analysis of personal jurisdiction, those advances may not eviscerate the constitutional limits on a state’s power to exercise jurisdiction over nonresident defendants.”

Creation of False Blog and LinkedIn Account Targeting Utah Resident Supports Personal Jurisdiction in Utah — Buckles v. Brides Club, Inc. (ericgoldman.org)

April 9, 2009 Contracts, Personal Jurisdiction

Website terms of service provide basis for exercise of personal jurisdiction

CoStar Realty Information, Inc. v. Field, — F.Supp.2d —-, 2009 WL 841132 (D.Md. March 31, 2009)

Personal jurisdiction cases — even ones that involve the internet — are generally not all that interesting. But the case of CoStar Realty Information, Inc. v. Field is worth noting because of the way the personal jurisdiction analysis was tied to a provision found in online terms of service.

CoStar provides its paying customers with access to a proprietary database via the web. It claimed that certain defendants, who were residents of Texas and Florida, accessed the database using another customer’s password. So CoStar sued these defendants in federal court in Maryland.

These defendants moved to dismiss arguing, among other things, lack of personal jurisdiction. The court denied the motion.

It found that in the four or so years that the defendants accessed the database without authorization, they would have been presented with the online terms of service from time to time. Those terms of service contained a clause which provided that any litigation over use of the database would be conducted in Maryland. The court found that the defendants assented to these terms, and that the forum selection clause was valid and enforceable.

Map photo courtesy Flickr user Marxchivist under this Creative Commons license

January 22, 2009 Personal Jurisdiction, Right of Publicity

No personal jurisdiction over Australian defendant in Flickr right of publicity case

Chang v. Virgin Mobile USA, LLC, 2009 WL 111570 (N.D.Tex. January 16, 2009)

Allison Chang (through her mother, since Allison is a minor) and Justin Ho-Wee Wong sued Australian-based Virgin Mobile Pty Ltd. alleging a number of tort claims including misappropriation of Chang’s right of publicity. Plaintiffs claimed that Virgin wrongfully used Chang’s picture in an Australian advertising campaign.

What makes the case intriguing is that Virgin got the photo off of Flickr. Wong took the picture and uploaded it there, attaching a Creative Commons Attribution 2.0 license to it. [See the ad]

Virgin moved to dismiss the action for lack of personal jurisdiction, arguing that it lacked minimum contacts with the forum state of Texas to satisfy constitutional due process. The court granted the motion and dismissed the case.

Chang argued that the court could exercise personal jurisdiction based on three contacts between Virgin and Texas: (1) Virgin’s accessing a Flickr server located in Texas; (2) Virgin’s contract (i.e., the Creative Commons license) with Wong, a Texas resident; and (3) the intrastate effects of Virgin’s use of Chang’s photograph in the advertising campaign.

The court found that Chang failed to establish the downloaded photo was on a server located in Texas. Though Flickr does maintain servers there, the photo could have been on another server located in either Virginia or Texas. The court rejected Chang’s argument that because Virgin directed its conduct to Flickr.com, it could be haled into court anywhere there are Flickr servers.

The court similarly found that any purported agreement with Wong via the Creative Commons license was not sufficient to establish personal jurisdiction. The Creative Commons license did not require Virgin to perform any of its obligations in Texas. Instead, the license permitted the photograph to be used anywhere in the world. Furthermore, Chang failed to show that Virgin performed any of its obligations in Texas. It used the photograph solely in Australia, the one place that, according to Virgin’s evidence, it was authorized to sell its products and services. Finally, because Virgin only used the photograph in Australia, the license that permitted its use was centered in Australia, not Texas.

Chang’s final argument was that she felt the injurious effects of the alleged misappropriation in Texas and therefore, under the holding of Calder v. Jones, a court in Texas could hear the case. The court rejected this argument finding that even though Chang may have shown she was affected in Texas, plaintiffs failed to show that Virgin’s conduct was intentionally directed into the forum.

Australian flag image courtesy Flickr user euthman under this Creative Commons license.

September 18, 2008 Personal Jurisdiction

Interactive websites supported exercise of personal jurisdiction

Plaintiff sued a California corporation in federal court in Utah. Defendant moved to dismiss, asserting, among other things, lack of personal jurisdiction. The court denied the motion.

The court found that it had specific personal jurisdiction over defendant. Plaintiff provided evidence that defendant ran a number of highly interactive websites, including at least two online stores. Defendant provided visitors with a shopping cart feature that allowed them to select multiple products for purchase. Visitors to defendants’ sites could purchase items over the website using Google checkout or a number of major credit cards. Defendant offered to sell products into Utah through its multiple internet stores. In short, defendant purposefully used its website to reach a large number of potential buyers, including those in Utah, and benefited from that exposure.

Citing to Dedvukaj v. Maloney, 447 F.Supp.2d 813 (E.D.Mich. 2006), the court observed that “[s]ellers cannot expect to avail themselves of the benefits of the internet-created world market that they purposefully exploit and profit from without accepting the concomitant legal responsibilities that such an expanded market may bring with it.”

A.L. Enterprises Inc. v. Sebron, 2008 WL 4356958 (D. Utah, September 17, 2008)

August 22, 2008 Personal Jurisdiction

Ninth Circuit: No personal jurisdiction over out of state eBay seller

Boschetto v. Hansing, — F.3d —, 2008 WL 3852676 (9th Cir. August 20, 2008)

Hansing, a resident of Wisconsin, offered a 1964 Ford Galaxie for sale on eBay. Boschetto, a California resident, was the winning bidder, and sent Hansing $34,106. He also arranged to have the car shipped from Wisconsin to California. After Boschetto found that the car didn’t meet the description in the eBay listing, he sued Hansing in California federal court, based on diversity subject matter jurisdiction. (Never mind how far below $75,000 the amount that was in controversy appears.)

Hansing moved to dismiss for lack of personal jurisdiction, and the court granted the motion. Boschetto sought review with the Ninth Circuit. On appeal, the court affirmed.

Single eBay transaction not enough

The question was whether this single transaction – enabled by eBay – constituted minimum contacts between Hansing and California to satisfy constitutional due process. A threshold question in that analysis was whether Hansing had purposely availed himself of the privileges of conducting activities in California, thereby invoking the benefits and protections of its laws.

The court answered the purposeful availment question in the negative. The single transaction did not create any ongoing obligations in California, nor did it result in substantial business being conducted by Hansing there. On this point, the court nodded to the oft-cited Burger King v. Rudzewicz case for its holding that a contract alone does not automatically establish minimum contacts in the plaintiff’s home forum. 471 U.S. at 478.

eBay as facilitator a “distraction” to the jurisdictional analysis

What makes this case worth noting (in light of the fact that personal jurisdiction cases can be pretty dull) is the court’s rejection of Boschetto’s argument that the eBay component of the deal defined the analysis. Boschetto had argued that the eBay listing would have been viewed by anyone in California, thus that functionality supported an exercise of personal jurisdiction.

But “the issue [was] not whether the court [had] personal jurisdiction over the intermediary eBay but whether it [had] personal jurisdiction over an individual who conducted business over eBay.” The court noted that in other Internet-related personal jurisdiction cases, like Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414 (9th Cir. 1997) and the famous case of Zippo Mfg. Co. v. Zippo Dot Com, 952 F.Supp. 1119 (W.D.Pa. 1997), the interactive nature of the websites had jurisdictional significance because they permitted the defendants to maintain ongoing contact with the forum.

An isolated sale on eBay, however, is different in nature. In this case, the court found that the eBay aspect was “a distraction from the core issue.” The use of eBay was to facilitate a one time contract that created no substantial connection with or ongoing obligations in the forum state.

This is not to say that the use of eBay could never give rise to personal jurisdiction outside a defendant’s home forum. A number of cases have so held. See, e.g., Dedvukaj v. Maloney. The court noted that where eBay is used as a means for establishing regular business with a remote forum, the traditional notions of fair play and substantial justice might provide for the exercise of personal jurisdiction. But this was not one of those cases.

(Photo of 1964 Galaxie courtesy of Flickr user Brain Toad Photography under a Creative Commons license.)

September 22, 2006 Personal Jurisdiction

Michigan federal court exercises personal jurisdiction over out-of-state eBay seller

In the case of Dedvukaj v. Maloney, the U.S. District Court for the Eastern District of Michigan has held that it can exercise personal jurisdiction over a New York eBay seller accused of breach of contract, fraud and misrepresentation in connection with an auction that went sour.

Plaintiff Maloney, a Michigan resident, won two eBay auctions for paintings from defendant Dedvukaj, a seller based in Syracuse, New York. The auctions advertised the paintings as being originals, and the defendant apparently verified the authenticity of the paintings over the phone. After the auctions closed, the plaintiff sought to collect the art works, but the defendant never shipped them. (There appears to be a dispute over whether the defendant was selling original paintings or copies.) The plaintiff refused a refund and demanded either the original paintings or their fair market value.

The plaintiff filed a lawsuit in his home state of Michigan alleging breach of contract, fraud and misrepresentation. The defendant moved to dismiss for lack of personal jurisdiction, or alternatively to transfer venue to the Northern District of New York.

The defendant argued that the Michigan court did not have personal jurisdiction over him because he sold items through eBay, and bids are “random” and “fortuitous,” as sellers cannot control who bids on a given item. The defendant also argued that because he did not target or specifically market his auctions to Michigan residents, his contacts were too attenuated for the court to find personal jurisdiction.

The court first looked to whether the Michigan long arm statute would support the exercise of personal jurisdiction. It held that by communicating with the Michigan plaintiff by telephone and e-mail, accepting the winning bids, and confirming shipping charges to Michigan, the defendant transacted business in Michigan. Because the dispute arose out of that business transaction, the defendant satisfied the requirements of the long arm statute.

The court next looked to whether the exercise of personal jurisdiction would pass muster under a constitutional due process analysis. It discussed a number of analogous cases, eventually holding that the defendant’s auction clearly supported personal jurisdiction in Michigan through purposeful availment.

For example, in First Tennessee Nat. Corp. v. Horizon Nat. Bank a court found personal jurisdiction existed where the defendant’s website stated the bank could lend in “[all] 50 States.” 225 F.Supp.2d 816, 820-21. In another case, a court found purposeful availment where a website stated it would do business “for any parent in any state,” specifically including Michigan. Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 891 (2002).

Using these cases as precedent, the court noted that the defendant’s auction listing stated he would ship anywhere in the United States. Additionally, defendant listed a toll-free telephone number and e-mail address in the auction. In part because the defendant did not limit buyers from Michigan from participating in his auction, and because he displayed a willingness to communicate with buyers from any state, the court found that the defendant had purposefully availed himself to the benefits of conducting business in Michigan.

Some other factors the court considered in finding purposeful availment: the number of e-mails and phone calls between the plaintiff and the defendant, the intentional and misleading nature of the communications between the parties, and the defendant’s acceptance of payment from Michigan.

Accordingly, the court denied the defendant’s motion to dismiss for lack of personal jurisdiction, and also denied the alternate motion for transfer of venue. It presented an essential fact underlying the analysis of personal jurisdiction arising from web-based transactions: “Sellers cannot expect to avail themselves of the benefits of the internet-created world market that they purposefully exploit and profit from without accepting the concomitant legal responsibilities that such an expanded market may bring with it.”

Dedvukaj v. Maloney, 2006 WL 2520347 (E.D. Mich., August 31, 2006)

Jurisdictional Challenges

Court’s Analysis and Decision

Conclusion

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