Monday, April 24, 2017

Essay VIII Sample Answer (Updated)

As I said in one of the classes today, I remain unsure of the right answer on this one. So I split the difference and wrote to sample answers--the first finds no jurisdiction and grants the motion, the second finds there is jurisdiction and denies the motion.

Essay VIII has been graded and can be picked up outside my office.
Granting Motion

The motion to dismiss for lack of personal jurisdiction is granted and this action is dismissed without prejudice.

This is a defamation action. According to the Complaint, the defendant engaged in unwanted sexual conduct towards the plaintiff, first in the defendant’s office in New York and then in a hotel room in California, in 2007. In 2016, while defendant was a candidate for President, the plaintiff (among other women) publicly reported and discussed what allegedly occurred in 2007. In the weeks that followed, defendant repeatedly denied plaintiff’s (and others’) allegations. The gravamen of the complaint is that by denying plaintiff’s accusations, the defendant was calling her a liar, constituting defamation per se.

Personal jurisdiction requires a two-step analysis. The court first asks whether is statutorily authorized to exercise personal jurisdiction over the defendant. If it is, the court asks whether such exercise is constitutional, that it comports with Fourteenth Amendment Due Process for the court to make the defendant defend in this state.

California’s Long Arm Statute provides that A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.” With a catch-all Long Arm Statute, if the Constitution is satisfied, then the Long Arm Statute is satisfied. We thus turn to the second, constitutional step in the inquiry.

Jurisdiction over an out-of-state defendant is analyzed according to International Shoe. A court can exercise in personam jurisdiction consistent with due process if the defendant has “certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” World Wide Volkswagen and subsequent Supreme Court jurisprudence has turned this into a three-step analysis: First, whether the defendant has certain minimum contacts with the forum state; second, whether those contacts give rise or relate to the claim, allowing for specific jurisdiction; and third, whether maintenance of the suit offends traditional notions of fair play and substantial justice, that is, whether it is unreasonable to make the defendant defend in the state. The first prong is essential—if the defendant does not have minimum contacts, the court need not consider whether it would be unreasonable for the court to exercise jurisdiction.

A defendant has “certain minimum contacts” with the forum when it has taken some actions by which it purposefully avails itself of the privileges of conducting activity in the state and of the benefits and protections of the laws of the state. By purposefully availing, a defendant should reasonably anticipate being haled into court in the state.

Because this case involves an intentional tort, the most applicable way to purposefully avail is the “Effects Test” of Calder v. Jones, as elaborated in Walden v. Fiore. Under the effects test, a defendant purposefully avails when he “purposely directs” or “intentionally aims” his (usually tortious) conduct from one state into the forum state, and the brunt of the harm is felt in the forum state. Walden emphasizes that the analysis focuses on the relationship among the defendant, the forum, and the litigation. Defendant’s contacts must be with the forum itself, not with persons who happen to reside there; that the injured plaintiff resides in the forum, and suffers harm there, is not sufficient.

The Supreme Court’s decision in Calder illustrates how these principles apply in defamation actions. The Court found that jurisdiction was proper in California by looking at the connections the defendants made to California in producing the story. The defendants wrote a story in Florida based on information gathered from phone calls with California-based sources. The story discussed plaintiff’s activities in California. And the plaintiff suffered reputational injury in California (where she lived and worked) as a result of a defamatory article that was widely circulated in the State.

Applying those principles here, this court concludes that the defendant has not established minimum contacts via the Effects Test. The primary connection to California is that Zervos resides there, so Trump made his allegedly defamatory statements about a Californian. But that alone is insufficient. None of the defendant’s statements denying the assault allegations were made in California. Many were made at rallies in other states, including Pennsylvania, North Carolina, New Hampshire, Maine, and Wisconsin. Although the rallies and comments were broadcast or reported nationwide, including in California, the defendant (unlike the publisher of a newspaper or television broadcast) was not responsible for, and did not control, the movement or repeating of his comments outside the states in which he made them.

Trump also made allegedly defamatory denials via Twitter, tweets sent to, and read by, his millions of followers throughout the United States and the world, likely including California. But there is no indication that Trump controlled those statements entering California enough to say he targeted the forum. There is no indication he knew any of his Twitter followers were located in California or that they anyone read those tweets in California. Perhaps some followers from other states happened to be in California when they read the tweets—and a third-party cannot create a defendant’s purposeful availment. Conduct intentionally directed at the world, but not intentionally targeting the forum state, is insufficient to establish minimum contacts. Nicastro. This is particularly true for internet-based contacts, where a person does not direct his contact at any state.

One of the alleged assaults occurred in California, and under Calder, defamatory statements about conduct occurring in a state might constitute purposeful direction. But the precise nature of the claim involved in this case matters. Zervos has not sued Trump for damages for the alleged California-based assaults; it would be obvious that Trump had minimum contacts by committing tortious acts in the state. It also might be closer to Calder if Trump’s denials of the California-based assaults were themselves the basis for the claim. But Trump’s California connections are more attenuated here. What makes his denials defamatory is that they contradict what Zervos said when she announced her accusations—and that announcement occurred somewhere other than California. Thus, Trump’s defamatory statements are about conduct—Zervos’ accusations—that occurred outside of California.

Because Trump did not have minimum contacts, there is no need for the Court to consider traditional notions of fair play and substantial justice. World Wide.





Denying Motion:

The motion to dismiss for lack of personal jurisdiction is denied.

This is a defamation action. According to the Complaint, the defendant engaged in unwanted sexual conduct towards the plaintiff, first in the defendant’s office in New York and then in a hotel room in California, in 2007. In 2016, while defendant was a candidate for President, the plaintiff (among other women) publicly reported and discussed what allegedly occurred in 2007. In the weeks that followed, defendant repeatedly denied plaintiff’s (and others’) allegations. The gravamen of the complaint is that by denying plaintiff’s accusations, the defendant was calling her a liar, constituting defamation per se.

Personal jurisdiction requires a two-step analysis. The court first asks whether is statutorily authorized to exercise personal jurisdiction over the defendant. If it is, the court asks whether such exercise is constitutional, that it comports with Fourteenth Amendment Due Process for the court to make the defendant defend in this state.

California’s Long Arm Statute provides that A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.” Under a catch-all staute, if the Constitution is satisfied, the Long Arm Statute is satisfied. We thus turn to the second, constitutional step in the inquiry.

Jurisdiction over an out-of-state defendant is analyzed according to International Shoe. A court can exercise in personam jurisdiction consistent with due process if the defendant has “certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” World Wide Volkswagen and subsequent Supreme Court jurisprudence has turned this into a three-step analysis: First, whether the defendant has certain minimum contacts with the forum state; second, whether those contacts give rise or relate to the claim, allowing for specific jurisdiction; and third, whether maintenance of the suit offends traditional notions of fair play and substantial justice, that is, whether it is unreasonable to make the defendant defend in the state. The first prong is essential—if the defendant does not have minimum contacts, the court need not consider whether it would be unreasonable for the court to exercise jurisdiction.

A defendant has “certain minimum contacts” with the forum when it has taken some actions by which it purposefully avails itself of the privileges of conducting activity in the state and of the benefits and protections of the laws of the state. By purposefully availing, a defendant should reasonably anticipate being haled into court in the state.

Because this case involves an intentional tort, the most applicable test for purposeful availment is the “Effects Test” of Calder v. Jones, as elaborated on most recently in Walden v. Fiore. Under the effects test, a defendant purposefully avails of the forum state when he “purposely directs” or “intentionally aims” his conduct (usually tortious) from one state into the forum state, and the brunt of the harm is felt in the forum state. Walden emphasizes that the analysis focuses on the relationship among the defendant, the forum, and the litigation. Defendant’s contacts must be with the forum itself, not with persons who happen to reside there; that the injured plaintiff resides in the forum, and suffers harm there, is not sufficient.

The Supreme Court’s decision in Calder illustrates how these principles apply in defamation actions. The Court found that jurisdiction was proper in California by looking at the connections the defendants made to California in producing the story. The defendants wrote a story in Florida based on information gathered from phone calls with California-based sources. The story discussed plaintiff’s activities in California. And the plaintiff suffered reputational injury in California (where she lived and worked) as a result of a defamatory article that was widely circulated in the State.

This court has jurisdiction over the defendant. The event at the core of this dispute is the alleged sexual misconduct, which occurred in California. Everything else—Zervos’s accusations about that event and Trump’s denials of those accusations about that even—flows from that forum-based incident. And resolution of the case turns on what the factfinder concludes happened in California in 2007—if the jury finds the assault occurred, then Zervos’s accusations are true and Trump’s denials false and defamatory; if the jury finds the assault did not occur, then Zervo’s accusations are false and Trump’s denials true. Everything turns on the truth of events in California, just as the defamation in Calder turned on the truth of the statements about California events. Regardless of whether Trump made those denials in California or directed them into Califronia, the fact that they concerned California-based activities is sufficient.

Having found minimum contacts, the next step is whether those contacts give rise or relate to the claim. Many courts treat these as meaning something different. “Give rise” means the contacts are part of the transaction or occurrence giving rise to the claim—that is, the in-state contacts are relevant to the claim. “Relate to” can be broader, suggesting a but-for connection between the contacts and the claim. Both standards are satisfied. The California-based events determine whether Trump’s denials are defamatory, so they must be proven to establish the claim; they therefore have substantive relevancy. And that certainly satisfies the broader “relate to,” since this dispute does not arise if those assaults in California never take place.

The final step is whether asserting jurisdiction would offend traditional notions of fair play and substantial justice. This asks whether it would be unreasonable for the defendant to defend in the state. This requires a balance of five considerations: the burden on the defendant in litigating in the foreign forum; the forum state’s interest in adjudicating the dispute; the plaintiff’s interest in obtaining convenient and effective relief; the interstate judicial system’s in efficient resolution; and the share interests of the several states in fundamental substantive policy. World Wide. Where there are minimum contacts, a defendant must make a “compelling case” that jurisdiction is unreasonable.

Trump cannot make that compelling case here. Defending in California is not inconvenient for Trump, who has and continues to travel to California and now can do so easily as President. Similarly, the plaintiff has a strong interest in adjudicating a dispute that derives from an assault in California and injury to one of its citizens.