Interesting case

STATE OF MINNESOTA



IN SUPREME COURT



C3-01-296







Court of Appeals

Blatz, C.J.
Took no part, Gilbert, J.

Katherine Griffis,



Respondent,

Filed: July 11, 2002
Office of Appellate Courts

vs.



Marianne Luban, petitioner,



Appellant.



S Y L L A B U S



A nonresident defendant is not subject to a foreign
court's jurisdiction under the effects test from Calder v. Jones, 465
U.S. 783 (1984), absent a showing that: (1) the defendant committed an
intentional tort; (2) the plaintiff felt the brunt of the harm caused
by that tort in the forum such that the forum state was the focal
point of the plaintiff's injury; and (3) the defendant expressly aimed
the tortious conduct at the forum such that the forum state was the
focal point of the tortious activity.

Reversed and judgments vacated.

Heard, considered, and decided by the court en banc.



O P I N I O N



BLATZ, Chief Justice



Respondent Katherine Griffis brought suit against appellant Marianne
Luban in Jefferson County, Alabama, alleging defamation and invasion
of privacy arising out of statements made by Luban on the internet.
Luban did not appear in the Alabama action, and the Alabama district
court entered a default judgment for $25,000 in damages and issued an
injunction prohibiting Luban from making certain statements in the
future. Griffis filed the Alabama judgment in Ramsey County District
Court, and Luban brought a motion to vacate, challenging the
jurisdiction of the Alabama court. The Ramsey County District Court
upheld personal jurisdiction of the Alabama court over Luban, and the
court of appeals affirmed. We reverse.

Respondent Katherine Griffis, an Alabama resident, has taught
noncredit courses in ancient Egyptian history and culture at the
University of Alabama, Birmingham. Griffis also works as a
self-employed consultant. Appellant Marianne Luban, a Minnesota
resident, maintains a nonprofessional interest in the history and
culture of ancient Egypt. Both Luban and Griffis have participated in
an internet newsgroup on archeology, the sci.archaeology newsgroup,
since at least 1996. A newsgroup is a forum for internet users that
addresses a specific topic and allows participants to exchange
information and engage in discussions or debate by "posting" messages
on the website. The sci.archaeology newsgroup is public and so
messages posted there can be accessed anywhere by any person with
internet access.

During the latter part of 1996 a disagreement arose between Luban and
Griffis relating to the subject of Egypt and Egyptology. In December
1996 Luban posted a message challenging Griffis's credentials as an
Egyptologist, and accusing Griffis of obtaining her degree from a "box
of Cracker Jacks." Griffis states that she responded by citing her
credentials in an electronic message sent directly to Luban. The
disagreement continued into 1997, with both Luban and Griffis
continuing to post messages relating to their disagreement on the
sci.archaeology newsgroup. In May 1997, Griffis's attorney sent a
letter to Luban demanding that Luban refrain from attacking Griffis's
character and professional reputation. The letter threatened legal
action if Luban did not retract the prior statements and refrain from
future attacks. Although Griffis asserts that Luban continued posting
defamatory messages after receiving this letter, the record before us
does not include any statements made by Luban, whether on the
sci.archaeology newsgroup or elsewhere, after March, 1997.

In September 1997, Griffis brought a defamation action against Luban
in Alabama state court. Griffis's complaint alleged that Luban posted
statements on the newsgroup asserting that Griffis obtained membership
in the International Association of Egyptologists and inclusion on
other lists of Egyptologists by misrepresenting her qualifications,
that Griffis was a liar, was not affiliated with the University of
Alabama, did not have a juris doctor degree, and that Griffis's
consulting business was not legitimate. Because Luban was advised by
her attorney that the Alabama state court did not have personal
jurisdiction over her, she did not answer the complaint or make any
appearance in the Alabama action. On December 17, 1997, the Alabama
court entered a default judgment against Luban. The court assessed
damages in the amount of $25,000 and also issued an injunction
specifically enjoining Luban from publishing certain statements in the
future.[1]

On May 5, 1998, Griffis filed the Alabama judgment in Ramsey County
District Court in order to enforce its terms against Luban. Luban
moved to vacate the judgment on the basis that the Alabama court
lacked personal jurisdiction over her. A referee initially granted
Luban's motion, but on reconsideration concluded that the Alabama
court had personal jurisdiction over Luban and ordered entry of a
Minnesota court judgment against Luban. On appeal, the court of
appeals vacated the referee's order because it had not been confirmed
or countersigned by a district court judge. In the interim, Luban
petitioned for bankruptcy, and on March 15, 2000, the bankruptcy court
discharged the $25,000 judgment from the Alabama court.

In March 2000, Luban renewed her motion in district court to vacate
the Alabama judgment, and Griffis filed a cross-motion to enforce the
Alabama injunction. The court found that the Alabama district court
had personal jurisdiction over Luban and therefore the judgment must
be given full faith and credit. Judgment was entered on December 21,
2000. On Luban's appeal, the court of appeals affirmed, ruling that
the district court did not err in its determination that the Alabama
court properly exercised personal jurisdiction over Luban. Griffis v.
Luban, 633 N.W.2d 548, 553 (Minn. App. 2001). The court of appeals
concluded that Luban was subject to the Alabama court's jurisdiction
because she made potentially defamatory statements that were being
read in Alabama and had knowledge of the effect of those statements in
Alabama. Id. Luban sought and was granted review in this court.

The question presented is whether the Ramsey County District Court
correctly determined that the Alabama district court had personal
jurisdiction over Luban so that the Alabama judgment is entitled to
full faith and credit in the Minnesota courts. This court recognizes
the right of a defendant to contest an action brought on the basis of
a foreign court's judgment by demonstrating that the foreign court
rendered the judgment in the absence of personal jurisdiction over the
defendant. David M. Rice, Inc. v. Intrex, Inc., 257 N.W.2d 370, 372
(Minn. 1977). Such judgments are not entitled to full faith and
credit in Minnesota. Uniform Enforcement of Foreign Judgments Acts,
Minn. Stat. § 548.27 (2000); Hutson v. Christensen, 295 Minn. 112,
117, 203 N.W.2d 535, 538 (1972). Minnesota courts will uphold a
foreign court's exercise of personal jurisdiction over a nonresident
defendant when two requirements are met: (1) compliance with the
foreign state's law providing jurisdiction, and (2) the exercise of
jurisdiction under circumstances that do not offend the Due Process
Clause of the federal constitution. Intrex, 257 N.W.2d at 372.
Whether personal jurisdiction exists is a question of law and
therefore our review is de novo. See V.H. v. Estate of Birnbaum, 543
N.W.2d 649, 653 (Minn. 1996); see also Matson v. Matson, 310 N.W.2d
502, 506 (Minn. 1981) (applying de novo review to issue of whether
foreign judgment entitled to full faith and credit).

For the first requirement, Minnesota courts apply the law of the
foreign state, as construed by that state's courts. See David M.
Rice, Inc, 257 N.W.2d at 372. Alabama law extends personal
jurisdiction over nonresident defendants to the full extent permitted
by due process. Ala. R. Civ. P. 4.2(a)(1)(B); DeSotacho, Inc. v.
Valnit Industries, Inc., 350 So.2d 447, 449-50 (Ala. 1977). Because
Alabama provides jurisdiction as broad as due process will allow, the
first requirement is subsumed by the second, and we need only
determine whether Alabama's exercise of personal jurisdiction over
Luban was consistent with due process.

The Due Process Clause of the Fourteenth Amendment limits the power of
a state court to exercise personal jurisdiction over a nonresident
defendant to circumstances where the defendant has "minimum contacts"
with the state so that "maintenance of the suit does not offend
‘traditional notions of fair play and substantial justice.' "
International Shoe Co. v. Washington, 326 U.S. 310, 319 (1945)
(quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). Where the
defendant had "continuous and systematic" contacts with the forum
state, the court can exercise "general" jurisdiction over a
nonresident defendant for all purposes, even for a claim that is not
related to the defendant's contacts with the forum state.
Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408,
414-16 (1984) (quoting Perkins v. Benguet Consol. Mining Co., 342 U.S.
437, 445 (1952)). Griffis does not contend that the Alabama courts
could exercise general jurisdiction over Luban. Where the nonresident
defendant's contacts with the forum state are not sufficient for
general jurisdiction, the defendant may nonetheless be subject to
"specific" jurisdiction—that is, jurisdiction over a claim that
allegedly arose out of the defendant's contacts with the forum.
Valspar Corp. v. Lukken Color Corp., 495 N.W.2d 408, 411 (Minn. 1992).
Griffis contends that Luban had sufficient contacts with Alabama, out
of which her claims arose, to support the Alabama court's exercise of
specific jurisdiction.

In judging minimum contacts for purposes of assessing the validity of
specific jurisdiction, a court focuses on the "relationship among the
defendant, the forum, and the litigation." Helicopteros Nacionales de
Columbia, S.A., 466 U.S. at 414-16 (quoting Shaffer v. Heitner, 433
U.S. 186, 204 (1977)); West American Ins. Co. v. Westin, Inc., 337
N.W.2d 676, 679 (Minn. 1983). For the minimum contacts requirement to
be satisfied, the defendant must have "purposefully avail[ed]" herself
of the privilege of conducting activities within the jurisdiction.
Imo Indus., Inc. v. Kiekert AG, 155 F.3d 254, 259 (3d Cir. 1998)
(quoting and modifying Hanson v. Denckla, 357 U.S. 235, 253 (1958)).
The defendant's conduct and connections with the forum state must be
such that the defendant "should reasonably anticipate being haled into
court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286,
297 (1980). The Supreme Court has explained that specific
jurisdiction may be found where the nonresident defendant has "
‘purposefully directed' his activities at residents of the forum and
the litigation results from alleged injuries that ‘arise out of or
relate to' those activities." Burger King Corp. v. Rudzewicz, 471
U.S. 462, 472 (1985) (quoting Keeton v. Hustler Magazine, Inc., 465
U.S. 770, 774 (1984), and Helicopteros Nacionales de Columbia, S.A.,
466 U.S. at 414).

In asserting that the Alabama district court had personal jurisdiction
over Luban, Griffis relies in particular, as did the courts below, on
Calder v. Jones, 465 U.S. 783 (1984). In Calder the Supreme Court
approved a test that had been employed by the California courts in
that case for determining personal jurisdiction over nonresident
defendants who allegedly committed an intentional tort outside the
forum. Id. at 787 & n.6. Rather than focusing only on the
defendant's conduct within or contacts with the forum, the so-called
"effects test" approved in Calder allowed long-arm jurisdiction to be
based on the effects within the forum of tortious conduct outside the
forum. Id.

Calder involved an allegedly libelous National Enquirer article
written and edited by the defendants in Florida, but concerning the
California activities of a California resident. Id. at 784-85.
Although the Enquirer was distributed nationally, it had its largest
circulation in California. Id. at 784-85. Plaintiff was an
entertainer whose profession, the Court pointed out, was centered in
California. Id. at 788. She brought suit in California against the
Florida-based publication, its distributing company, and the reporter
and editor of the article. Id. at 785-86. The reporter and editor
moved to quash service of process for lack of personal jurisdiction.
Id. at 785-85. Although the investigative contacts of one defendant
with California, including a visit and several phone calls, were
alleged as a basis for jurisdiction, the Court found it unnecessary to
consider those direct contacts with the forum. Id. at 786-87 & n.6.
Instead, the Court held that California had personal jurisdiction over
the reporter and editor because their Florida conduct was "expressly
aimed" at California, knowing that the harmful effects would be felt
primarily there. Id. at 789. The Court emphasized that the alleged
tort was not "mere untargeted negligence." Id. Under these
circumstances, the Court found that defendants "must ‘reasonably
anticipate being haled into court' " in California for their
out-of-state actions. Id. at 790 (quoting World-Wide Volkswagen
Corp., 444 U.S. at 297).

Courts have come to varying conclusions about how broadly the "effects
test" approved in Calder can be applied to find jurisdiction. The
Seventh Circuit Court of Appeals has construed Calder very broadly,
concluding that "the state in which the victim of a tort suffers the
injury may entertain a suit against the accused tortfeasor." Janmark,
Inc. v. Reidy, 132 F.3d 1200, 1202 (7th Cir. 1997). However, the
other federal courts of appeals that have considered the issue have
rejected this expansive view that Calder supports specific
jurisdiction in a forum state merely because the harmful effects of an
intentional tort committed in another jurisdiction are primarily felt
in the forum. E.g., Imo Indus., 155 F.3d at 265. Thus, courts have
consistently refused to find jurisdiction based on Calder merely
because the plaintiff was located in the forum state and therefore
felt the effects of the alleged intentional tortious conduct there.
E.g., id.; ESAB Group, Inc. v. Centricut, Inc., 126 F.3d 617, 625-26
(4th Cir. 1997); Far West Capital, Inc. v. Towne, 46 F.3d 1071, 1080
(10th Cir. 1995); Southmark Corp. v. Life Investors Inc., 851 F.2d
763, 773 (5th Cir. 1988). Instead, the courts have construed Calder
as requiring more than mere effects in the forum state. For example,
the Ninth Circuit reasoned that " ‘something more' " than mere effects
is needed and found that something more in the " ‘express aiming' "
language of Calder. Bancroft & Masters v. Augusta Nat'l, Inc. 223
F.3d 1082, 1087 (9th Cir. 2000) (quoting Panavision Int'l, L.P. v.
Toeppen, 141 F.3d 1316, 1321 (9th Cir. 1998); Calder, 465 U.S. at
789). But the court took a broad view of express aiming by concluding
that the requirement is satisfied simply by "wrongful conduct [outside
the forum] individually targeting a known forum resident." Id.

The Eighth Circuit adopted a narrower interpretation of Calder,
stating that it was more than "mere effects" that supported the
Supreme Court's holding. Hicklin Eng'g, Inc. v. Aidco, Inc., 959 F.2d
738, 739 (8th Cir. 1992). The court found that the Iowa court's
jurisdiction did not extend over a Michigan company that sent
allegedly defamatory letters to customers of the Iowa-based plaintiff
company. Id. The customers to whom the letters were sent were all
located outside of Iowa. Id. The court stated that while the
defendant's statements to the non-Iowa customers were intended to
promote the defendant's product to the detriment of the plaintiff's
and therefore might have an adverse effect on the Iowa plaintiff, this
effect alone was not sufficient to establish jurisdiction. Id.

Within the spectrum of differing circuit court interpretations of
Calder, we believe the most cogent analysis of the Calder effects test
is that of the Third Circuit in Imo Industries. In Imo Industries,
the circuit court expressed concern over the possible breadth of
Calder, asking whether under Calder a court can automatically infer
that an out-of-state defendant can anticipate being haled into the
forum from the fact that the defendant knew that plaintiff resided in
the forum. 155 F.3d at 262-63. After examining how a number of other
courts construed Calder, the Third Circuit concluded that the Calder
effects test is not satisfied by the "mere allegation that the
plaintiff feels the effect of the defendant's conduct in the forum
because the plaintiff is located there." 155 F.3d at 263. Instead,
the court stated that Calder's holding "cannot be severed from its
facts." 155 F.3d at 261. The court explained that in Calder the
Supreme Court relied on three principal findings in reaching its
conclusion that the California court properly exercised jurisdiction
over the nonresident defendants, and the circuit court incorporated
those findings into a three-prong analysis for application of the
Calder effects test. 155 F.3d at 261. The test requires the
plaintiff to show that: (1) the defendant committed an intentional
tort; (2) the plaintiff felt the brunt of the harm caused by that tort
in the forum such that the forum state was the focal point of the
plaintiff's injury; and (3) the defendant expressly aimed the tortious
conduct at the forum such that the forum state was the focal point of
the tortious activity. Id. at 265-66. Significantly, the court
emphasized that to satisfy the third prong, the plaintiff must show
that "the defendant knew that the plaintiff would suffer the brunt of
the harm caused by the tortious conduct in the forum, and point to
specific activity indicating that the defendant expressly aimed its
tortious conduct at the forum." Id. at 266 (emphasis added).

We, too, are cautious about applying Calder too broadly. Although the
Supreme Court has engaged in little further discussion of Calder, in
one post-Calder decision the Court did make it clear that
foreseeability of effects in the forum is not itself enough to justify
long-arm jurisdiction. The Court explained:

[T]he constitutional touchstone remains whether the defendant
purposefully established "minimum contacts" in the forum State.
International Shoe Co. v. Washington, [326 U.S.] at 316. Although it
has been argued that foreseeability of causing injury in another State
should be sufficient to establish such contacts there when policy
considerations so require, the Court has consistently held that this
kind of foreseeability is not a "sufficient benchmark" for exercising
personal jurisdiction. World-Wide Volkswagen Corp. v. Woodson, 444
U.S., at 295. Instead, "the foreseeability that is critical to due
process analysis . . . is that the defendant's conduct and connection
with the forum State are such that he should reasonably anticipate
being haled into court there." Id., at 297.



Burger King Corp., 471 U.S. at 474 (footnote omitted). If
foreseeability of injury in the forum is not enough, it follows that
something more than defendant's knowledge that the plaintiff is a
resident of the forum and will feel the effects of the tortious
conduct there must be necessary to satisfy the effects test. We
conclude that something more than mere effects in the forum state is
required, and agree with the Third Circuit that the Supreme Court did
not "carve out a special intentional torts exception to the
traditional specific jurisdiction analysis, so that a plaintiff could
always sue in his or her home state." Imo Indus., 155 F.3d at 265.
Broad applications of the effects test, such as those of the Seventh
and Ninth Circuits, cast too wide a net and incorrectly disregard the
factual underpinnings of the Court's holding in Calder. We adopt the
three-prong analysis articulated by the Third Circuit in Imo
Industries, as it properly synthesizes the bases of the Court's
decision in Calder without effecting an overly broad application.

The critical question in this case turns on the third prong, whether
the defendant expressly aimed the allegedly tortious conduct at the
forum such that the forum was the focal point of the tortious
activity.[2] As noted above, to satisfy the third prong, the
plaintiff must show that "the defendant knew that the plaintiff would
suffer the brunt of the harm caused by the tortious conduct in the
forum, and point to specific activity indicating that the defendant
expressly aimed its tortious conduct at the forum." Imo Indus., 155
F.3dat 266.

Griffis argues that Luban directed the defamation at the Alabama forum
because she targeted her messages at Griffis, whom she knew to be an
Alabama resident, and because Luban knew that messages posted on the
sci.archaeology newsgroup could be read anywhere in the world and in
fact were read by Griffis in Alabama. Griffis further contends that
Luban's defamatory statements had "deleterious effects" on Griffis's
consulting business and her professional reputation in Alabama. The
district court agreed with Griffis, stating that Luban "never denied
that she knew Plaintiff was located in Alabama, and that her allegedly
defamatory messages would have an ‘effect' on Plaintiff's professional
career in Alabama."

While the record supports the conclusion that Luban's statements were
intentionally directed at Griffis, whom she knew to be an Alabama
resident, we conclude that the evidence does not demonstrate that
Luban's statements were "expressly aimed" at the state of Alabama.[3]
The parties agree that Luban published the allegedly defamatory
statements on an internet newsgroup accessible to the public, but
nothing in the record indicates that the statements were targeted at
the state of Alabama or at an Alabama audience beyond Griffis herself.
The newsgroup on which Luban posted her statements was organized
around the subjects of archeology and Egyptology, not Alabama or the
University of Alabama academic community. According to Griffis,
Luban's messages were widely read by her colleagues—the other amateur
Egyptologists who participated in the sci.archaeology newsgroup. But
Griffis has not presented evidence that any other person in Alabama
read the statements. Nor has she asserted that Alabama has a unique
relationship with the field of Egyptology, like the close relationship
between the plaintiff's profession and the forum state that the
Supreme Court found relevant in Calder. Therefore, even if we assume
Luban's statements were widely read by followers of the
sci.archaeology newsgroup, the readers most likely would be spread all
around the country—maybe even around the world—and not necessarily in
the Alabama forum. The fact that messages posted to the newsgroup
could have been read in Alabama, just as they could have been read
anywhere in the world, cannot suffice to establish Alabama as the
focal point of the defendant's conduct.

To support her assertion that Luban's statements affected her
professional integrity in Alabama, Griffis relies on the message
posted by a dean at the University of Alabama. But that message
simply verified that Griffis had taught noncredit classes related to
ancient Egypt at the University of Alabama's Department of Special
Studies. The statement did not indicate an awareness of Luban's
statements, nor did it indicate that Griffis's integrity or reputation
had been impugned at the University. Significantly, the dean posted
the message to another newsgroup because she did not have access to
sci.archaeology newsgroup on which Luban made her postings. Griffis
later copied the Dean's message onto the sci.archaeology newsgroup.
Thus nothing in the factual record before us indicates that Luban's
messages were read by any other person in Alabama, or by anyone in the
academic community at the University of Alabama. Griffis also relies
on a letter her attorney wrote to Luban threatening litigation to
establish that Luban knew her postings would harm Griffis's consulting
business in Alabama. But the letter states only that Luban's
statements were "threatening" Griffis's business and did not specify
any details about the business. Nor does anything in the record
establish that Griffis's consulting business was focused in Alabama,
beyond the fact that Griffis herself was located there.[4] Unlike the
facts in Calder, where the defamatory article was focused on
California activities of a California plaintiff whose professional
industry was centralized in California and was carried by a national
newspaper with its highest circulation in California, Griffis did not
"expressly aim" her statements at the state of Alabama such that
Alabama was the focal point of the tortious activity.

In sum, we conclude that the record does not demonstrate that Luban
expressly aimed her allegedly tortious conduct at the Alabama forum so
as to satisfy the third prong of the Imo Industries analysis. The
mere fact that Luban knew that Griffis resided and worked in Alabama
is not sufficient to extend personal jurisdiction over Luban in
Alabama, because that knowledge does not demonstrate targeting of
Alabama as the focal point of the allegedly defamatory statements. As
a result, even if Luban knew or should have known that defamatory
statements about Griffis would affect her in her home state of
Alabama, that alone is not enough to demonstrate that Alabama was the
focal point of Luban's tortious conduct. Failing this, Griffis cannot
rely on Calder to confer personal jurisdiction based on Luban's
allegedly intentional tortious conduct. Because Griffis does not
claim any other basis on which the Alabama court could properly extend
personal jurisdiction over Luban, the judgment of the Alabama court is
not entitled to full faith and credit in Minnesota. The decisions of
the courts below enforcing the Alabama judgment are therefore
reversed, and the Alabama judgment filed in Ramsey County District
Court on May 5, 1998, under the Uniform Enforcement of Foreign
Judgments Acts, Minn. Stat. § 548.27, and the Ramsey County District
Court judgment entered on December 21, 2000, based on the Alabama
judgment, are vacated.

Reversed and judgments vacated.



GILBERT, J., took no part in the consideration or decision of this
case.



--------------------------------------------------------------------------------

[1] The injunction prohibited Luban from publishing in any
form—including on the internet, world wide web and e-mail—statements
asserting or implying that Griffis is a liar, a phony, a con-artist or
scam artist, that she has falsified her credentials as an
Egyptologist, that she is not affiliated with the University of
Alabama, that she does not have a juris doctor degree, and that she is
not engaged in a legitimate consulting business.

[2] Because all three prongs must be satisfied for
jurisdiction to attach, we need address the other two prongs only if
this requirement is met.

[3] Luban concedes that she knew Griffis lived in Alabama.
But this fact alone is insufficient to conclude that Luban expressly
aimed her allegedly tortious conduct at the Alabama forum. We look to
the record for other evidence that the Alabama forum was the focal
point of the defamatory statements. The record contains only two
messages posted by Luban on the sci.archaeology newsgroup that
identify the Alabama forum in any way. In one, Luban stated Griffis
was "from the great state of Alabama." In another, in response to a
message by Griffis signed University of Alabama at Birmingham, Special
Studies, Luban asked: "What are special studies and what have you to
do with them." In response, Griffis posted, "Now for the record, I am
an instructor with the University of Alabama at Birmingham, Department
of Special Studies, and have been for over 17 years." Luban also
acknowledges that she made one phone call to the University of
Alabama, in which she asked a receptionist whether Griffis was
employed there.

[4] In fact, a copy of the website of the consulting business
in the district court record identifies Griffis Consulting as "a
U.S.-based consulting firm * * * involved in both domestic and
international services to business, government, and other
organizations." There is no mention of Alabama on the website, other
than an ad from the hosting site.

Girlfight! Coolness!

Regards,
Tom