Opinion
3:00-CV-1268-R
March 20, 2001
MEMORANDUM OPINION
On June 12, 2000, Plaintiff, Oliver "Buck" Revell, filed suit against Defendants Hart G. Lidov, The Board of Trustees of Columbia University, and Columbia University School of Journalism, alleging defamation, intentional infliction of emotional distress, conspiracy, and breach of duty. Now before this Court are two separate Motions to Dismiss, one on behalf of Defendant Hart G. Lidov and the other on behalf of The Board of Trustees of Columbia University. Both motions are made pursuant to Federal Rule of Civil Procedure 12(b)(2), for lack of personal jurisdiction, For the reasons stated below, both Motions are GRANTED and this case is DISMISSED WITHOUT PREJUDICE.
Columbia University's Motion is also made pursuant to 12(b)(6) for failure to state a claim upon which relief can be granted. For reasons discussed below, this ground will not be addressed in this opinion.
Background
This case arises out of the publication of an article about an alleged conspiracy involving the bombing of Pan Am Flight 103. The article was authored by Defendant Lidov and was posted by Mr. Lidov on the Columbia University Journalism Review Internet bulletin board. The article alleges that the Plaintiff and a number of other high-ranking members of the United States government were involved in a conspiracy to conceal information that they had received regarding a possible bomb plot prior to the bombing of Flight 103. The article makes a number of other of allegations including: the bombing of Flight 103 occurred as a result of the conspirators' failure to stop it; the conspirators arranged for all important government employees and their family members to adjust their travel schedules so that they would not be on one of the possible target flights; and the conspirators covered up the U.S.'s complicity in the bombing after the fact. Consequently, the article holds Revell responsible, in part, for the deaths that resulted from the bombing. Plaintiff claims to have suffered harm to his reputation and emotional distress in the state of Texas due to the posting of this article.The Plaintiff's alleged involvement in the alleged conspiracy came as a result of his work as the Associate Deputy Director for the Federal Bureau of Investigations (FBI). In this capacity, Plaintiff was responsible for all criminal investigative, counter-terrorism, and counter-intelligence programs and the international investigative and liaison activities of the FBI. Although it is not clear where Plaintiff resided at the time of the bombing, at the time the article was posted on Columbia University's website, Plaintiff was a resident of the state of Texas. He continues to reside in Texas where he serves as Chairman of the Greater Dallas Crime Commission and is President of the Law Enforcement Television Network. It is not clear what involvement, if any, the Plaintiff currently has with the Federal Bureau of Investigations.
Defendant Lidov lives and works in Boston, Massachusetts. He is an Assistant Professor of Pathology and Neurology at Harvard Medical School and Children's Hospital. Defendant Lidov has never solicited or engaged in any business in Texas and he has never entered into any contract or business with any Texas residents. To the best of his recollection, Defendant Lidov has never been to Texas, nor was he aware that the Plaintiff resided in Texas at the time he wrote the article in question. Defendant Lidov is not an employee or a student of Columbia University. The article does not appear to be related to the Defendant's profession, and it appears that the Defendant did not have a commercial purpose in writing and posting the article.
Defendant Board of Trustees of Columbia University of the City of New York (Columbia University) is a not-for-profit corporation engaged in teaching, research, and other academic pursuits. Its principal offices are in New York City. Columbia University's Journalism Review maintains a website that contains a bulletin board on which members of the public can post articles and comments. According to the Plaintiff, the Journalism Review posted a request for comments regarding the Pan Am 103 bombing and Defendant Lidov posted his article in response. The article was then available for the public to view by accessing the Journalism Review's website. According to the Plaintiff, there are areas of the website from which members of the public can purchase services and products. However, both parties agree that Defendant Lidov's article was only available for viewing by members of the public who chose to access the website; it could not be purchased from the website. Both parties also agree that this website can be accessed by anyone in the world who chooses to visit it. Defendant Lidov's article has never been published in print form, though the Plaintiff asserts that it has been copied to other websites since it was first posted.
Evidently, the Board of Trustees and the Columbia University School of Journalism are one legal entity and they will be treated as the same party for the purposes of this motion.
Discussion
I Consideration of Affidavits
Although the Plaintiff submitted his own affidavit, he has objected to this Court's consideration of the affidavits submitted by the Defendants. The law is clear that a court "may determine the jurisdictional issue by receiving affidavits, interrogatories, depositions, oral testimony, or any combination of the recognized methods of discovery." Allred v. Moore Peterson. 117 F.3d 278, 281 (5th Cir. 1997)(citing, Stuart v. Spademan. 772 F.2d 1185, 1192 (5th Cir. 1985) (citations omitted)). This Court will therefore consider the affidavits submitted by both parties in ruling on this motion. In so doing, this Court will resolve any conflicts between the facts contained in the affidavits in the Plaintiff's favor. See D.J. Investments, Inc. v. Metzeler Motorcycle Tire Agent Gregg, Inc., 754 F.2d 542, 546 (5th Cir. 1985)(citing, Brown v. Flowers Indus., Inc., 688 F.2d 328, 332 (5th Cir. 1982); Wyatt v. Kaplan. 686 F.2d 276, 280 (5th Cir. 1982)). Therefore, Plaintiff's objections to the Defendants' affidavits are hereby DENIED.
II Standard for Exercising Personal Jurisdiction
Federal district courts sitting in diversity may exercise personal jurisdiction only to the extent permitted a state court under applicable state law. See Allred, 117 F.3d at 281 (citations omitted). The federal court sitting in diversity may exercise personal jurisdiction if (1) it is permitted by the state long-arm statute as interpreted by the state courts and (2) exercising jurisdiction does not violate due process guaranteed by the Fourteenth Amendment. See id. The plaintiff has the burden of establishing the court's power to exercise personal jurisdiction over a defendant. See Bullion v. Gillespie, 895 F.2d 213, 216-17 (5th Cir. 1990). "[W]here the district court rules on a motion to dismiss for lack of jurisdiction without conducting an evidentiary hearing, the plaintiff may bear his burden by presenting a prima facie case of jurisdiction."Felch v. Transportes Lar-Mex SA DE CV, 92 F.3d 320, 326 (5th Cir. 1996).
Under the Texas long-arm statute, Tex. Civ. Prac. Rem. Code Ann. §§ 17.041-.045, a nonresident may be subject to Texas long-arm jurisdiction if the nonresident commits "acts constituting doing business" in Texas. Id. at § 17.042. "The Texas Supreme Court has interpreted the 'doing business' requirement broadly, allowing the long-arm statute to reach as far as the federal Constitution permits."Gundle Lining Const. v. Adams County Asphalt 85 F.3d 201, 204 (5th Cir. 1994) (citing, Schlobohm v. Schapiro. 784 S.W.2d 355, 357 (Tex. 1990)). Thus, this Court is only required to consider whether an exercise of jurisdiction over the Defendants satisfies the constitutional due process requirements. See Stuart, 772 F.2d at 1189; CD Solutions, Inc. v. Tooker, 965 F. Supp. 17, 19 (N.D. Tex. 1997).
Exercising personal jurisdiction over a nonresident defendant will not violate due process if two conditions are met. See Gundle, 85 F.3d at 204. First, the defendant must have purposefully availed himself of the benefits and protections of the forum state by establishing minimum contacts with the forum state. See International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). The minimum contacts with the forum state must be significant enough so that the nonresident defendant should reasonably anticipate being haled into court in the forum state. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 296 (1980). Second, exercising jurisdiction over the nonresident defendant must not offend traditional notions of fair play and substantial justice. See Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 113 (1987).
In addition, the minimum contacts analysis can be further subdivided into contacts that give rise to specific personal jurisdiction and contacts that give rise to general personal jurisdiction. See Gundle. 85 F.3d at 205. Specific jurisdiction, which is the alleged basis for jurisdiction in this case, permits the exercise of personal jurisdiction over a nonresident defendant only when the nonresident defendant's contacts with the forum state arise from, or are directly related to, the cause of action. See Helicopteros Nacionales de Colombia, S.A. v. Hall 466 U.S. 408, 414 n. 8 (1984). To determine whether or not specific jurisdiction may be exercised, "the court must examine the relationship among the defendant, the forum, and the litigation to determine whether maintaining the suit offends traditional notions of fair play and substantial justice." Gundle, 85 F.3d at 205 (citing, Shaffer v. Heitner, 433 U.S. 186, 204 (1977)).
Plaintiff argues only specific personal jurisdiction over the Defendants, based on the allegation that this cause of action arises out of the Defendants' contact with the state of Texas, i.e., posting and maintaining the article on the web site where Texas residents could read it.
III Personal Jurisdiction in Internet Posting Cases
"The Internet is a unique and wholly new medium of worldwide human communication." Reno v. American Civil Liberties Union, 521 U.S. 844, 850 (1997) (citation omitted). While the Internet is not nearly as novel today as it was when this statement was made by the Supreme Court in 1997, the jurisprudence surrounding this medium is still in its early stages of development. However, despite an absence of abundant, settled law, the Fifth Circuit has chosen a definite path in addressing the jurisdictional issues raised by this case.
In Mink v. AAAA Development LLC, 190 F.3d 333 (5th Cir. 1999), the Fifth Circuit adopted the "sliding scale" test first set forth by a Pennsylvania District Court in Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997), to evaluate the minimum contacts that may be established by a defendant's Internet activities. See Mink, 190 F.3d 333, 336; see also American Eyewear, Inc. v. Peeper's Sunglasses and Accessories, Inc., 106 F. Supp.2d 895, n. 10 (N.D. Tex. 2000) (The Fifth Circuit adopted Zippo's sliding scale in Mink): People Solutions, Inc. v. People Solutions, Inc., 2000 WL 1030619, 3 (N.D. Tex. 2000) (InMink, the Fifth Circuit embraced the use of the Zippo analysis). AlthoughMink was a general jurisdiction case, Texas District Courts have interpreted Mink's adoption of Zippo to apply in both general jurisdiction and specific jurisdiction cases. See American Eyewear, Inc., 106 F. Supp.2d at n. 10; People Solutions, Inc., 2000 WL 1030629. Therefore, this Court will apply the analysis set forth in Zippo to determine whether the posting and maintenance of the allegedly defamatory article satisfies the minimum contacts requirement for this Court to assert jurisdiction over the Defendants.
The Zippo analysis requires a court to look to the "nature and quality of commercial activity that an entity conducts over the Internet." Mink. 190 F.3d at 336 (quoting, Zippo Mfg. Co., 952 F. Supp. at 1124). The level of activity conducted may be classified in one of three categories. "At the one end of the spectrum, there are situations where a defendant clearly does business over the Internet by entering into contracts with residents of other states which 'involve the knowing and repeated transmission of computer files over the Internet. . . .'" Id. Jurisdiction is proper in this type of case. See id. "At the other end of the spectrum, there are situations where a defendant merely establishes a passive website that does nothing more than advertise on the Internet." Mink, 190 F.3d at 336. Jurisdiction is not proper in this type of case. See id. (citing, Zippo Mfg. Co., 952 F. Supp. at 1124 (citations omitted)). "In the middle of the spectrum, there are situations where a defendant has a website that allows a user to exchange information with a host computer." Mink, 190 F.3d at 336. Jurisdiction is determined in these types of cases by looking at "the level of interactivity and commercial nature of the exchange of information that occurs on the Website." Id. (quoting, Zippo Mfg. Co., 952 F. Supp. at 1124 (citations omitted)). District Courts in Texas have held that in this middle ground, the plaintiff must demonstrate something other than the mere maintenance of a website; "Plaintiff must show that the Defendant has 'purposefully availed itself of the benefits of the forum state and its laws." People Solutions. Inc., 2000 WL at 4. This requirement reflects the practice of courts throughout the country of incorporating the traditional personal jurisdiction requirement of purposeful availment when applying the Zippo scale. See, e.g., Osteotech. Inc. v. GenSci Regeneration Sciences, Inc., 6 F. Supp.2d 349 (D.N.J. 1998); Desktop Technologies, Inc. v. Colorworks Reproduction Design. Inc., 1999 WL 98572 (E.D. Pa. 1999); Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414 (9th Cir. 1997).
IV Defendants' Internet Posting
This case fits perfectly into the passive website extreme of the Zippo sliding scale. The Columbia University website at issue contains a bulletin board on which members of the public can post articles and comments. Although this may seem interactive in that information can be sent to the website, it is not truly interactive in that the site does not send anything back — there is no direct contact between the website, the people who send the information, or the people who read it. Once information is posted, the site is completely passive, individuals can go to the site, read the information, and if they choose to, post additional information. Because Plaintiff asserts only specific jurisdiction based on the posting of this particular article, the fact that other aspects of Columbia University's website may be more interactive, and allow for the order of goods and services, is irrelevant. This article, and the forum in which it was posted, did not involve the exchange of information, commercial or otherwise.
A comparison of these facts to those of other specific jurisdiction Internet cases in Texas supports the conclusion that jurisdiction is not appropriate in this case. In People Solutions, Inc., a recent case from this District, the plaintiff sued the defendant for trademark infringement based on the use of the "People Solutions" trademark on its website. People Solutions, Inc., 2000 WL at 1. Defendant's website provided detailed descriptions and interactive pages regarding the products and services it offered. Id. Customers could test the defendant's products, download product brochures and information, and order products online. Id. The court in People Solutions classified this level of interaction as falling within the "middle ground" of the Zippo scale.Id. at 4. However, the court refused to find personal jurisdiction because there was no evidence that the defendant actually sold any products to, or contracted with, anyone in Texas. Id. The court held that "[p]ersonal jurisdiction should not be premised on the mere possibility, with nothing more, that Defendant may be able to do business with Texans over its web site; rather, Plaintiff must show that Defendant has 'purposefully availed itself of the benefits of the forum state and its laws." Id. American Eyewear, Inc. is another trademark infringement action arising from the use of a trademark on the defendant's website. American Eyewear, Inc, 106 F. Supp.2d 895. The defendant in American Eyewear used its website to knowingly enter into contracts with Texas residents for commercial gain. Id. at 901. Users of the website interacted with the site and the defendant's employees by submitting product order forms and by using the site's e-mail option to submit requests to the defendant's customer service department. Id. Moreover, the defendant shipped goods that were ordered via the website to the state of Texas. Id. Although the American Eyewear court also classified this activity as falling within Zippo's "middle ground," it determined that the activity amounted to the regular transaction of business with Texas residents and therefore the defendant had purposefully availed itself of the benefits of the state of Texas and jurisdiction was appropriate. Id. at 902.
These cases illustrate the line between interaction that is sufficient to confer jurisdiction and that which is not. The interaction in the present case falls well below the interaction in both People Solutions andAmerican Eyewear. Moreover, this case lacks the specific type of contact between the Defendants and the forum that the court in People Solutions also found wanting; there is no evidence that any individuals in Texas ever read Defendant Lidov's article. This Court is not aware of any cases in the Fifth Circuit in which jurisdiction has been attempted based on web sites that are as passive as the site in this case. However, courts in other circuits have addressed passive websites, and two in particular address passive sites in defamation cases, thus presenting the closest analogy to the present case.
In Bailey v. Turbine Design, Inc., 86 F. Supp.2d 790 (W.D. Tenn. 2000), the defendant's website contained allegedly defamatory statements about a commercial competitor. The statements "were merely posted on the website to be viewed by whomever cared to do so," and there was no evidence that the defendants had any contacts with the forum state other than the posting of the site, which was available to anyone with Internet access, including residents of the forum state. Id. at 794. The court in Bailey refused to find jurisdiction based on this "wholly passive" site. Id. at 796. In so holding, the court cited the second analogous case, Barrett v. Catacombs Press, 44 F. Supp.2d 717 (E.D. Pa. 1999), for the proposition that "the mere fact that the website contained defamatory information concerning the plaintiff does not, absent some supporting evidence, mean that the defendant possessed the intent to target residents of the forum state." Bailey, 86 F. Supp.2d at 796 (citing,Barrett, 44 F. Supp.2d at 727). In Barrett, the defendant initially posted defamatory statements on an on-line discussion group. Barrett, 44 F. Supp.2d at 722. The defendant subsequently posted the statements on her own web site, and then disseminated a link to this site to other websites, list serves, and discussion groups. Id. The Barrett court explained that the conference of jurisdiction based on such a passive site would not "comport with the traditional concept of personal jurisdiction where merely fortuitous contact is insufficient." Id. at 727 (citing, e.g., Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774 (1984)). Instead, the court stated, exercising jurisdiction based on such a site "would subject anyone who posted information on the Web to nationwide jurisdiction." Id.
The reasoning articulated by the courts in Barrett and Bailey applies equally to the case at bar. The article about the Plaintiff was posted on Columbia University's website where it could be viewed by anyone in the world who had Internet access. If anyone in Texas happened to read the article, such an occurrence would be "merely fortuitous" and could not provide grounds for personal jurisdiction absent any other contacts between the Defendants and this forum. The Defendants, who did not even know where the Plaintiff resided, could not have anticipated "being haled into court" in Texas just because one of the people mentioned in the
article happened to reside here. World-Wide Volkswagen Corp., 444 U.S. at 296.
The Plaintiff asks this Court to ignore the precedent that has developed in the Internet cases and instead apply two non-Internet cases that involve what has come to be known as the "effects test" for personal jurisdiction. Specifically, Plaintiff asks this Court to look at the extent to which the Defendants' tortious conduct was directed toward and had an effect in Texas, following the United States Supreme Court's rulings in Calder v. Jones, 465 U.S. 783 (1984) and Keeton v. Hustler Magazine, Inc., 465 U.S. 770.
Both of these cases are distinguishable because they concerned printed media that was knowingly and purposefully sold and circulated in the forums at issue. Id. Because the material was intentionally circulated, the defendants knew that the effects of their defamatory statements would be felt in the forum state. Id. Moreover, in Calder, the defendant knew that the plaintiff lived in the forum state, knew that her career as an actor, which would be harmed by the defamatory statements, was based in that state, and knew that the defendant's greatest circulation occurred in that very state. Calder, 465 U.S. at 789-90. Similarly, in Keeton, the court focused on the fact that the defendant had engaged in a "general course of conduct in circulating magazines throughout the state" via regular monthly sales of thousands of magazines. Keeton, 465 U.S. at 774. The Plaintiff in the present case has failed to provide any comparable facts that could justify this Court's exercise of jurisdiction.
The courts in the cases of Bailey and Barrett, discussed above, rejected similar attempts to apply Calder and Keeton to defamatory statements posted on passive web sites. Bailey, 86 F. Supp.2d at 796-97;Barrett, 44 F. Supp.2d at 730-31. The court's reasoning in Barrett is particularly analogous to the facts of this case. In Barrett, the court refused to find that the defendant knew the effects of its conduct would be felt in the forum state because the defamatory statements were made about the defendant in his national capacity as an advocate against health care fraud. Barrett, 44 F. Supp.2d at 728. The court referred to the fact that the plaintiff himself highlighted that he was well-known in his capacity as an international figure. Id. at 728-29. The court concluded that it was in this capacity, and not in his capacity as a doctor in the forum state, that his reputation was threatened by the defendant's statements. Id. at 728-29.
In the present case, the allegedly defamatory article criticizes the Plaintiff in his role as the Associate Deputy Director for the FBI. It was the Plaintiff's position as the one person in the United States who was responsible for all criminal investigative, counter-terrorism, and counter-intelligence programs of the FBI that was maligned by this article. The article had nothing to do with the Plaintiff's position as a resident, community member, or community leader in the state of Texas. Like the Plaintiff in Barrett, this Plaintiff has himself highlighted the fact of his national and international reputation, describing his many appearances before committees of the U.S. House of Representatives and television shows such as 60 Minutes, Face the Nation, and Nightline. In light of the national and international character of the Plaintiff's career and the activities described in the article, the Plaintiff cannot successfully argue that the Defendants purposefully directed their Internet posting to the state of Texas with the knowledge that its effects would be felt there.
Plaintiff has failed to make a prima facie showing that either Defendant Lidov or Defendant Columbia University engaged in the minimum contacts with the state of Texas that are required by due process. Maintaining this lawsuit in the Northern District of Texas would offend the "traditional notions of fair play and substantial justice," that the Texas long-arm statute and the United States Constitution seek to protect. Gundle, 85 F.3d at 205 (citing, Shaffer v. Heitner, 433 U.S. 186, 204 (1977)). Therefore, Defendant Lidov and Defendant Columbia University's Motions to Dismiss are hereby GRANTED.
V Request for Discovery
Plaintiff asks this Court to postpone its ruling on this Motion so that the Plaintiff can conduct discovery to aid it in uncovering additional evidence to support its claim of personal jurisdiction. "It is clear that, in a proper case, the District Judge has broad discretion to allow discovery on jurisdictional issues." Washington v. Norton Manufacturing. Inc., 588 F.2d 441, 443 (5th Cir. 1979)(citing, 8 C. Wright A. Miller, Federal Practice and Procedure s 2009 (1970)). Where a motion to dismiss for lack of personal jurisdiction does not raise any issues of fact, a court need not allow discovery. See Wyatt v. Kaplan, 686 F.2d 276, 284 (5th Cir. 1982)(citing, H.L. Moore Drug Exchange. Inc. v. Smith, Kline French Laboratories, 384 F.2d 97 (2nd Cir. 1967)). "Accordingly, [the Fifth Circuit] affirms denials of discovery on questions of personal jurisdiction where the discovery sought 'could not have added any significant facts'." Id. at 284 (citing, Washington. 588 F.2d at 447).
Here, all parties agree on the facts that are relevant to the question of personal jurisdiction. As asserted by the Plaintiff, jurisdiction is based on the posting of an article by a Massachusetts resident on a website maintained in New York City, accessible by individuals in the state of Texas, and causing injuries to the Plaintiff in the state of Texas. Plaintiff argues that the "depth and reach of the Defendant's actions have yet to be fully exposed," but the Plaintiff has not presented this Court with any indication that such exposure could possibly reveal any evidence that would be relevant to jurisdiction. Plaintiff's Response to Defendant Hart Lidov's Motion to Dismiss p. 14. All relevant information about the nature of Columbia University's website and the posting of Defendant Lidov's article is accessible to the Plaintiff by simply visiting the website. Moreover, because the Plaintiff only alleges specific jurisdiction, information about other, unrelated contacts between the Defendants and the state of Texas is irrelevant. Therefore, Plaintiffs request for additional discovery is hereby DENIED. VI Defendant Columbia University's Motion to Dismiss Pursuant to FRCP 12(b)(6)
Because this Court lacks personal jurisdiction over Columbia University, it is not necessary to address Columbia University's second ground for dismissal.
Conclusion
For the foregoing reasons, Defendant Lidov and Defendant Columbia University's Motions to Dismiss are GRANTED. This case is hereby DISMISSED WITHOUT PREJUDICE for lack of personal jurisdiction.