United States: Far From Home: Individuals And The Personal Jurisdiction Defense

Our world is s h r i n k i n g . Technological advancements in communication, travel and the internet can make us feel we are everywhere while sitting on our living room couch. So in a shrinking world, what happens to the personal jurisdiction defense — entirely predicated on a person's "presence" or "meaningful connection" with a particular place?

Surely this is not a new question facing lawyers and judges. Technology's challenges to personal jurisdiction are as old as International Shoe Co. v. Washington, the U.S. Supreme Court's watershed 1945 opinion that established the foundation for all modern jurisdictional jurisprudence — not to mention generating pre−final exam nightmares for first-year law students.1 Courts have been dealing with the internet's impact on personal jurisdiction since the influential 1997 decision Zippo Manufacturing Co. v. Zippo Dot Com, Inc. that ultimately spawned our Fourth Circuit's internet-activity test.2

Yet, the overwhelming majority of leading personal jurisdiction decisions involve corporate defendants. Individual defendants have received far less attention,3 likely because few individuals have a strong multistate presence. But with enhanced communications and social media participation comes enhanced exposure to lawsuits filed outside of an individual's home forum.

Communications-based tort claims, like defamation, appear to be a prime candidate for interstate forum selection where per sonal jurisdiction issues arise. Such was the backdrop in the recent decision Pandit v. Pandit, et al., Civ. No. PX-18-1136, 2018 WL 5026373 (D. Md. 2018), where a Maryland plaintiff sued several Arkansas defendants in Maryland federal court, asserting defamation and related claims arising out of alleged emails and letters the defendants sent from Arkansas. The court ultimately found it did not have personal jurisdiction over the Arkansas defendants and dismissed the lawsuit.

The Pandit case is exemplary of the type of interstate communications−based claims that could become more common as social media continues to evolve. The case provides a setting to highlight some key issues that arise in litigating the personal jurisdiction defense on behalf of individual defendants.

General jurisdiction rarely applies to individuals, if at all. Personal jurisdiction has two theories: general jurisdiction, which allows a court to hear any claim against a defendant considered to be "at home" in the forum state, and specific jurisdiction, which permits the court to hear controversies arising out of specific case-linked activities occurring in the forum.4

In 1990, a U.S. Supreme Court footnote expressed skepticism that general jurisdiction could ever apply to an individual outside of the state where the individual lives.5 The Supreme Court took it a step further in the 2011 case Goodyear Dunlop Tires Operations, S.A. v. Brown, stating that "for an individual, the paradigm forum for the exercise of general jurisdiction is the individual's domicile."6 Many federal courts have taken the Goodyear dictum to mean that an individual can never be sued outside her domicile except in exceptional circumstances.7 One could theorize that exceptional circumstances exist where an out-of-state defendant spent significant time living in the forum state or if the defendant visits the forum state so frequently she can be considered practically living there. In Pandit, the court held that the Arkansas defendants' familial ties and handful of visits in Maryland were not enough to establish anything equivalent to a domicile in Maryland.8

General jurisdiction has long been considered a difficult standard to satisfy.9 Defendants are much more commonly compelled to defend lawsuits in foreign forums under the theory of specific jurisdiction, which looks to the defendant's suit-related activities in the forum state.10 Even in these circumstances, there are adequate contentions to protect a nonresident defendant from being unfairly hauled into a Maryland court.

In Maryland, it matters more where a communication originated than where it was received. Maryland's long-arm statute provides that a nonresident can be sued in Maryland for a tortious act and injury that occurred in Maryland.11 The Pandit plaintiff argued that this long-arm statute provision was satisfied because the alleged defamatory communications were received by Maryland residents — therefore, the tortious conduct occurred in Maryland. The plaintiff cited the recent opinion in Seidel v. Kirby, which held that for purposes of the federal venue statute defamation occurs where the publication occurs.12 However, a long line of cases shows that Maryland law differs with respect to the long-arm statute.13 For example, in Dring v. Sullivan, the court held that a person who "sat at a computer in New Jersey"

Footnotes

1 International Shoe Co. v. Washington, 326 U.S. 210, 317 (1945); See Wright & Miller, 4 Fed. Prac. & Proc. Civ. § 1067 (stating that International Shoe was the watershed Supreme Court case that accounted for "the nation's increasingly industrialized economy, the advent of high speed transportation and communication, and the mobility of the population.").

2 Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997); See Toys "R" Us, Inc. v. Step Two, S.A., 318 F.3d 446, 452 (3rd Cir. 2003) (recognizing that Zippo has become the "seminal" authority for internet jurisdiction cases); ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707 (4th Cir. 2012).

3 See Wright & Miller, 4 Fed. Prac. & Proc. Civ. § 1069.5 (reaching the same conclusion).

4 Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. at 915, 919 (2011).

5 Burnham v. Superior Ct. of Cal., 495 U.S. 604, 610 n. 1 (1990).

6 Goodyear, 564 U.S. at 915, 924 (2011).

7 See McCullough v. Royal Caribbean Cruises, Ltd., 268 F. Supp. 3d 1336, 1349–50 (S.D. Fla. 2017) (collecting cases); See also Fid. Nat. Title Ins. Co. v. M & R Title, Inc., 21 F. Supp. 3d 507, 515 (D. Md. 2014) (holding that "regular vacations and travel and occasional work in Maryland" did not support a general jurisdiction finding).

8 Pandit, 2018 WL 5026373 at 3.

9 See ESAB Group, Inc. v. Centricut, Inc., 126 F. 3d 617, 623 (4th Cir. 1997).

10 Goodyear, 564 U.S. at 919.

11 See Maryland's Long-Arm Statute, Md. Code Ann., Cts. & Jud. Proc. § 6-103(b)(3).

12 Seidel v. Kirby, 296 F. Supp. 3d 745 (D. Md. 2017).

13 See, e.g., Zinz v. Evans and Mitchell Indus., 22 Md. App. 126 (1974); McLaughlin v. Copeland, 435 F. Supp. 513 (D. Md. 1977); Dring v. Sullivan, 423 F. Supp. 2d 540 (D. Md. 2006)

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Origially published by the Maryland Defense Counsel

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