Revell v. Lidov
Facts
Lidov, an Assistant Professor at Harvard Medical School, wrote an article on the terrorist bombing of Pan Am Flight 103, which exploded over Lockerbie, Scotland. The article alleges that a broad politically motivated conspiracy among senior members of the Reagan Administration lay behind their willful failure to stop the bombing despite clear advance warnings. Lidov charged that the government covered up the fact that it had advance warning and repeatedly misled the public. Lidov laid heavy criticism upon Revell, the Associate Deputy Director of the FBI, accusing him of complicity in the conspiracy and cover-up.
Lidov charges that Revell knew that the attack was imminent and made certain his son, previously booked on Pan Am 103, took a different flight. Lidov had never been to Texas and conducted no business there and was apparently unaware that Revell resided in Texas.
Lidov posted his article on a website maintained by the School of Journalism at Columbia University. The article could be viewed by members of the public over the internet. Revell sued the University whose principal offices are in New York, and Lidov, a Massachusetts resident, in the Northern District of Texas. The defendants moved to dismiss for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2). The district court granted the motions and Revell appealed.
Issues
- Is knowledge of the particular forum in which a potential plaintiff will bear the brunt of the harm an essential part of the Calder test?
- Does jurisdictional due process require courts to apply physical standards of jurisdiction to cyber disputes?
Holding and Rule of Law
- Yes. Knowledge of the particular forum in which a potential plaintiff will bear the brunt of the harm forms an essential part of the Calder test.
- Yes. Jurisdictional due process requires courts to apply physical standards of jurisdiction to cyber disputes.
A federal district court sitting in diversity may exercise personal jurisdiction over a foreign defendant if:
- the long-arm statute of the forum state creates personal jurisdiction over the defendant, and
- the exercise of personal jurisdiction is consistent with the due process guarantees of the United States Constitution.
Because Texas’s long-arm statute reaches to the constitutional limits, we ask, therefore, if exercising personal jurisdiction over the defendants would offend due process. The Due Process Clause of the Fourteenth Amendment permits a court to exercise personal jurisdiction over a foreign defendant when:
- that defendant has purposefully availed himself of the benefits and protections of the forum state by establishing minimum contacts with the forum state; and
- the exercise of jurisdiction over that defendant does not offend traditional notions of fair play and substantial justice.
Sufficient minimum contacts will give rise to either specific or general jurisdiction. General jurisdiction exists when a defendant’s contacts with the forum state are unrelated to the cause of action but are continuous and systematic. Specific jurisdiction arises when the defendant’s contacts with the forum arise from, or are directly related to, the cause of action.
Revell urges that the district court may assert general jurisdiction over Columbia because its website provides internet users the opportunity to subscribe to the Columbia Journalism Review, purchase advertising on the website or in the journal, and submit electronic applications for admission. In Zippo Manufacturing to determine whether the operation of an internet site can support the minimum contacts necessary for the exercise of personal jurisdiction, the court used a sliding scale to measure an internet site’s connections to a forum state.
A passive website that merely allows the owner to post information on the internet is at one end of the scale. It will not be sufficient to establish personal jurisdiction. At the other end are sites whose owners engage in repeated online contacts with forum residents over the internet, and in these cases personal jurisdiction may be proper. In between are those sites with some interactive elements, through which a site allows for bilateral information exchange with its visitors. Here, courts find more familiar terrain, requiring that we examine the extent of the interactivity and nature of the forum contacts.
This sliding scale is not well adapted to the general jurisdiction inquiry. Repeated contacts with forum residents by a foreign defendant may not constitute the requisite substantial, continuous and systematic contacts required for a finding of general jurisdiction. While a firm may be doing business with a state, it is not doing business in that state. Engaging in commerce with residents of the forum state is not in and of itself the kind of activity that approximates physical presence within the state’s borders.
In the Supreme Court’s seminal case on general jurisdiction, Perkins, the corporation’s president resided in Ohio, the records of the corporation were kept in Ohio, director’s meetings were held in Ohio, accounts were held in Ohio banks, and all key business decisions were made there. In Bird v. Parsons, the Sixth Circuit found Ohio courts lacked general jurisdiction over a non-resident business that registered domain names despite the fact that: (1) the defendant maintained a website open for commerce with Ohio residents and (2) over 4000 Ohio residents had in fact registered domain names with the defendant.
Columbia never received more than twenty internet subscriptions to the Columbia Journalism Review from Texas residents. But for matters related to specific jurisdiction the Zippo standard is more appropriate. The question is whether the plaintiff has made out his prima facie case with respect to the defendants’ contacts with the forum state. Zippo’s scale does more work with specific jurisdiction — the context in which it was originally conceived. For specific jurisdiction courts look only to the contact out of which the cause of action arises.
Since this defamation action does not arise out of the solicitation of subscriptions or applications by Columbia, those portions of the website need not be considered. Columbia’s bulletin board is interactive, and we must evaluate the extent of this interactivity as well as Revell’s arguments with respect to Calder. The Supreme Court upheld the exercise of personal jurisdiction over the Calder defendants because they had expressly aimed their conduct towards California. The story concerned the California activities of a California resident. It impugned the professionalism of an entertainer whose television career was centered in California. The article was drawn from California sources, and the brunt of the harm, in terms both of respondent’s emotional distress and the injury to her professional reputation, was suffered in California. The Enquirer also had its largest circulation – over 600,000 copies – in California, indicating that the defendants knew the harm of their allegedly tortious activity would be felt there.
Considering both the effects test of Calder and the low-level of interactivity of the internet bulletin board, we find the contacts with Texas insufficient to establish the jurisdiction of its courts.
Disposition
Affirmed.