Doe 1 et al v. Ciolli et al

Filing 97

NOTICE OF ADDITIONAL AUTHORITY by Doe 1, Doe 2 re 77 MOTION to Dismiss for Lack of Jurisdiction filed by Doe 1, Doe 2. (Berkowitz, Benjamin)

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

DOE I, and DOE II,
Plaintiffs,
v.

Case No. 3:07CV00909 (CFD)

February 18, 2009

Matthew C. Ryan, a.k.a. ":D"; and individuals using the following pseudonyms:

pauliewalnuts; neoprag; stANORDtroll;
lkjhgf; yalelaw; Spanky; ylsdooder; HI; David Carr; vincimus; Cheese Eating Surrender Monkey; A horse walks into a bar; The Ayatollah ofRock-n-Rollah; DRACULA; Sleazy Z; Ari Gold; U gly Women; playboytroll;
Dean Harold Koh; krOnz; reminderdood;
r~ygold; who

is; Joel Schellhammer; Prof

Brian Leiter; hitlerhitlerhitler; lonelyvirgin; Patrick Zeke ":patrick8765~hotmai1.com?; Patrick Bateman
..batemanhls08~hotmai1.com?; (DOE I) got a

157 LSA T; azn, azn, azn; Dirty Nigger; leaf; t14 gunner; kibitzer; yalels2009; AK47,
Defendants.

PLAINTIFFS' NOTICE OF SUPPLEMENTAL AUTHORITY REGARDING MATTHEW RYAN'S MOTION TO DISMISS

436441.01

Plaintiffs Doe I and Doe II respectfully submit this Notice of Supplemental Authority to

bring to this Court's attention a newly-issued Connecticut superior court decision relevant to
Defendant Matthew Ryan's pending motion to dismiss.
On December 3,2008, after the Plaintiffs had submitted their brief

in opposition to
Connecticut (District of

Defendant Ryan's motion to dismiss, the Superior Court of

New Haven)

issued the attached opinion in Rios v. Fergusan, 2008 Conn. Super. LEXIS 3223, No.

F A084039853S (Frazzini, J.). In Rios, a case of first impression in the Connecticut courts, the
court conducted an analysis of

whether Connecticut's long-ar statute permitted the extension of

personal

jurisdiction over an individual who had posted allegedly tortious material on Youtube,
located in

an Internet site that permits individuals to post video content, directed at an individual

Connecticut. Like the AutoAdmit discussion forum, Y outube is a website that is viewable

anywhere in the world. Like this case, the facts in Rios are simple: Chrstopher Fergusan posted
a video on Y outube threatening to hurt his girlfrend, Stacy RIos. Fergusan did not live in
Connecticut and did not do any business in the state.

In analyzing whether it had personal jurisdiction, the court in Rios first considered

Connecticut's long-ar statute, C.G.S. § 52-59b, which provides in relevant par:
(a) As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident individual..., who in person or through an agent: (1) Transacts any business within the state; (2) commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; (3) commits a tortious act outside the state causing injur to person or property within the state, except as to a cause of action for defamation of character arsing from the act, if such person or agent (A) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (B) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; (4) owns, uses or possesses any real property situated within the state; or (5) uses a computer ..., or a computer network ... located within the state.

436441.01

1

The court concluded that the portion of the long-ar statute applicable to the tortious Internet
conduct directed at a Connecticut resident was subsection (a)(2), which provides for personal

jurisdiction where a defendant "commits a tortious act within the state." Rios, at *12. The cour
held "that a nonresident defendant does not need to be physically present in Connecticut at the
time of the commission of

the alleged tortious act for him to have 'commit(ted) a tortious act

within the state' for purposes of § 52-59(a)(2)." ¡d. at *17. The court held further that Internet
posts which were "directed at the forum state and causing injury that gives rise to a potential

claim cognizable in that state" were suffcient to give rise to personal jurisdiction, satisfying
Connecticut's long-arm statute and constitutional principles of due process. ¡d. at *20-27

(brackets and ellipses omitted).
For puroses of personal jurisdiction analysis, Fergusan's targeting of

Rios, whom he the Plaintiffs, whom he knew
the Plaintiffs'

knew to be in Connecticut, is no different from Ryan's targeting of

to be Yale Law School students. Nor is Rios distinguishable on the basis of

defamation claims. While defamation is specifically excepted under subsection (a)(2), Plaintiffs'
claims against Ryan include claims for unreasonable publicity, false light, and intentional and
negligent inflction of emotional distress-torts which are not excepted from subsection (a)(2).

Thus, Rios and this case are on all fours with one another and the Cour should consider this new
decision of first impression by the Connecticut superior court in analyzing the personal

jurisdiction issues in this case.
III III

III

436441.01

2

Respectfully submitted,

Dated: February 18, 2009 PLAINTIFFS DOEI AN DOE II
By: /s/ Ashok Ramani

Ashok Ramani (pro hac vice) Benj amin Berkowitz (pro hac vice) KEKER & Y AN NEST, LLP 710 Sansome Street San Francisco, CA 94111 Telephone: [phone] Facsimile: [phone] EmaI1: ARamani~kvn.com BBerkowitz~kvn.com

Mark Lemley
Dure Tangr Lemley Roberts & Kent LLP

332 Pine Street, Suite 200

San Francisco, CA 94104 Phone [phone] Email: mlemley~durietangr.com

David N. Rosen David Rosen & Associates PC 400 Orange Street New Haven, CT 06511 Telephone: [phone] Facsimile: [phone]
Email: drosen~davidrosenlaw.com

436441.01

3

Page 1

*lexisNexis*
1 of 1 DOCUMENT

Stacy Elena Rios v. Christopher Fergusan

FA084039853S
SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF NEW HAVEN AT NEW HAVEN
2008 Conn. Super. LEXIS 3223

December 2, 2008, Decided December 3, 2008, Filed

NOTICE: THIS DECISION IS UNREPORTED

presents the issue of whether a
Connecticut court has jurisdiction to

AND MAY BE SUBJECT TO FURTHER
APPELLATE REVIEW. COUNSEL IS CAUTIONED

enter a restraining order under
General Statutes §46b-1S 1 against a North Carolina resident who created and disseminated a recording on the
internet on You

TO MAKE AN INDEPENDENT DETERMINATION
OF THE STATUS OF THIS CASE.

Tube threatening a

JUDGES: (*1) STEPHEN F. FRAZZINI,
JUDGE OF THE SUPERIOR COURT.

resident of this state with physical harm. Although courts in this state and beyond have repeatedly wrestled in

OPINION BY: STEPHEN F. FRAZZINI

recent years with jurisdictional issues in cases invol ving the
internet, 2 the extension of
YouTube is apparently an issue of first impression. For the reasons

OPINION

jurisdiction to threatening behavior
(*2) communicated over the internet on

Memorandum of Decision Re Application for Restraining Order

The internet has transformed our

stated below, the court finds that it has personal jurisdiction for purposes

ways of communicating and sharing

information, but content on the

of entering such an order. The
restraining order previously granted on a temporary and provisional basis
is granted for six months, subj ect to further extension as available at law.
3

internet that some find offensive or

harmful has also created new and
challenging issues. Everyday the news

brings reports about users posting
controversial or disturbing content on

social networking web sites such as

MySpace, Facebook, and YouTube that
are accessible worldwide. This case

1 Section 46b-1S of the General Statutes provides, in relevant
part, as follows: "Any family or

asks whether a person who is
threatened with physical harm by an

household member who has

internet posting can obtain judicial

been subj ected to a continuous threat of present physical pain

relief in the form of a restraining

order to protect her from the
threatened harm. More precisely, it

or physical injury by another family or household member or
person in, or has recently been

Page 2

2008 Conn. Super. LEXIS 3223, *2

in, a dating relationship who has

been subjected to a continuous threat of present physical pain or physical injury by the other person in such relationship may

where a defendant has simply posted information on an Internet

Web site which is accessible

(*4) to users in foreign

make an application to the
General Statutes §46b-15 (a) .
Superior Court for relief

jurisdictions. A passive Web site

that does little more than make information available to those who are interested in it is not

Pursuant to §46b-15 (b), "(u) pon
receipt of the application the
court shall order that a hearing

personal jurisdiction The
middle ground is occupied by

grounds for the exercise of

on the application be held .

The court, in its discretion, may

make such orders as it deems
appropriate for the protection of the applicant and such dependent children or other persons as the

host computer. In those cases, the exercise of jurisdiction is
determined by examining the level

can exchange information with the
of interactivity and commercial

interactive sites where a user

court sees (*3) fit . If an
applicant alleges an immediate and present physical danger to

nature of the exchange of
information that occurs on the Web site." Id., 1124. Although acknowledging Zippo to be the

the applicant, the court may
issue an ex parte order granting

"seminal authority regarding
personal jurisdiction based upon the operation of an Internet web site," the Second Circuit Court

such relief as it deems

appropriate. " 2 Most of these cases have
involved commercial disputes in

the federal courts. See, e. g. ,

of Appeals has cautioned that

ZippoManufacturing Co. v. Zippo Dot Com., Inc., 952 F.Sup. 1119 (W.D.Pa. 1997), where the court

" (w) hile analyzing a defendant i s conduct under the Zippo sliding
scale of interactivity may help frame the jurisdictional inquiry

described the various means

in some cases, . it does not
amount to a separate framework

through which a person or
corporation might use a website for commercial purposes and how that use might be construed by a

for analyzing internet-based

jurisdiction. Instead,

traditional statutory and
constitutional principles remain the touchstone of the inquiry. As

court when considering the issue

of personal jurisdiction. "(T) he

li ih o jukreitlstutoiodtaithat can be di c lon personal cons i n ly exercised is
directly proportionate to the
nature and quality of commercial activity that an entity conducts

the Zippo court itself noted, personal jurisdiction analysis
applies traditional principles to

new situations. " (Citations

omitted; quotations omitted.)
490 F. 3d 239, 252 (2d Cir. 2007).

Bes t Van Lines, Inc. v. Walker,

over the Internet At one end of the spectrum are
situations where a defendant
clearly does business over the
Internet. If the defendant enters into contracts with residents of

a foreign jurisdiction that
the opposite end are situations

3 Section 46b-15 of the General Statutes (*5) allows extensions of the initial restraining order for additional periods, as set forth below: "(c) Every order of
the court made in accordance with

invol ve the knowing and repeated transmission of computer files
over the Internet, personal

jurisdiction is proper At

following language: i This order may be extended by the court
order of the court shall exceed

this section shall contain the

beyond six months (d) No

Page 3

2008 Conn. Super. LEXIS 3223, *S

six months, except that an order may be extended by the court upon motion of the applicant for such

the court granted the restraining
order application for an additional unspecified temporary interval while

additional time as the court

the court considered the issue.

deems necessary. If the
respondent has not appeared upon the initial application, service

An application for relief from
abuse pursuant to §46b-1S is a civil
action. Although the courts of several (*7) states have held that restraining orders may be issued without personal jurisdiction over a respondent, 4 the Connecticut restraining order statute

may be made by first-class mail

of a motion to extend an order
directed to the respondent at his or her last known address."

applicant, Stacy Rios, filed an
application for a restraining order
under General Statutes §46b-1S against

On September 16, 2008, the

explicitly requires a finding of personal jurisdiction for such an
order. Section 46b-lS (e) provides that

" (e) very order of the court made in
accordance with this section after
notice and hearing shall contain the following language: i This court had jurisdiction over the parties and the

Christopher Fergusan, a resident of North Carolina who is the father of her four-year-old child. An ex parte

which scheduled a hearing for two
applicant appeared for the hearing, but, no service having been made on

restraining was granted by the court, weeks hence. On September 30, the

subject matter when it issued this
protection order. i" (Emphasis added.)

respondent, the court heard brief

The court, therefore, must have personal jurisdiction over the respondent in order to issue a
restraining order after notice and

testimony and then continued the ex parte order for three weeks to give

Rios additional time to serve (*6)

hearing. In determining whether
personal jurisdiction can be exercised

October 21, when she presented
satisfactory proof of personal service

Fergusan. She appeared again on

over a nonresident defendant, "(the court) must first decide whether the

applicable state long-arm statute

on Fergusan in North Carolina by a
process server authorized to serve him

authorizes the assertion of
jurisdiction over the (defendant). If the statutory requirements (are) met,

there al though he was not in court

that day. The court then heard

additional evidence and found that

decide whether the exercise of
jurisdiction over the (defendant)
quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn.

its second obligation (is) then to

Fergusan had subj ected Rios to a
continuing threat of present physical harm to her. The evidence established that Fergusan has threatened her with physical violence in the past and that

would violate constitutional
SOS, S14-1S, 923 A.2d 638 (2007).

principles of due process." (Internal

she resided for a while in North
Carolina but left there and returned

to Connecticut earlier this year, after which he posted a video on YouTube in which he brandished a
firearm in a rap song in which he says that he wants to hurt the applicant, to shoot her, and to "put her face on the dirt until she can i t breathe no more." He temporarily took the video off YouTube but then placed another
video there that again threatened her.

4 See Bartsch v. Bartsch, 636 N. W. 2d 3 (Iowa 2001) ; (*8)
Spencer v. Spencer, 191 S.W.3d 14

Donovan, 4S0 Mass. 463, 879
N.E.2d 117, cert. denied 128 S.

(Ky.Ct.App. 2006); Caplan v.

Ct . 2088, 170 L. Ed. 2 d 817 (2008); Shah v. Shah, 184 N.J.

12 S , 8 7 SA. 2 d 93 1 ( 2 00 S). The

Concerned about the court i s
jurisdiction over Fergusan, however,

Iowa Supreme Court and the
Massachusetts Supreme Court have applied a "status exception,"

Page 4

2008 Conn. Super. LEXIS 3223, *8

which allows a court to
adjudicate "matters involving the

status of the relationship
between multiple parties even
where personal jurisdiction over

138 . A prohibitory order, the court explained, "is addressed not to the defendant but to the victim: it provides the victim

the very protection the law

all the parties is not
established"; Caplan v. Donovan, supra, 450 Mass. 468; as in the

specifically allows, and it

prohibits the defendant from engaging in behavior already
specifically outlawed." Id. The court further held that since a final restraining order by New

case of marriage dissolutions,

tote entry of a protective order.

See Bartsch v. Bartsch, supra,
636 N.W.2d 3; Caplan v. Donovan,

Jersey statute includes such

supra, 463 . In Bartsch v.

affirmative relief as the
surrendering of firearms it
cannot be entered in the absence of personal jurisdiction over the

preserves the protected status

Bartsch, supra, 10, the court held that a protective order afforded plaintiffs under the

(*10) defendant. Id. , 140.
Finding "the distinction made by

state r s domestic abuse statute

and that " (i) f a court may constitutionally make orders
affecting marriage, custody, and parental rights without personal jurisdiction of a defendant, it

New Jersey r s highest court

between prohibitory and
affirmative orders (to represent)

the fairest balance between
protecting the due process rights of the nonresident defendant and

what the court did here- -enter an order protecting a resident .
from abuse." Similarly in Caplan v. Donovan, supra, 469, the court held that "(a) court order that

certainly should be able to do

the state i s clearly-articulated

interest in protecting the plaintiff against domestic
violence," the Kentucky Appellate

prohibits (*9) the defendant
from abusing the plaintiff and orders him to have no contact
with and to stay away from her . serves a role analogous to

Court likewise held that a protective order can enter
against a nonresident defendant
over whom the court does not have

determinations, except that the

custody or marital

personal jurisdiction provided the order does not compel any
action by the defendant. Spencer
v. Spencer, supra, 191 S.W.3d 19.

order focuses on the plaintiffs
In Shah v. Shah, supra, 184

protected status rather than her

Although the Iowa and
Massachusetts Supreme Courts did

marital or parental status."

not base their holdings on the distinction between prohibitory
and affirmative orders as the New Jersey Supreme Court and Kentucky

N. J . 125, the New Jersey Supreme

Court reached a similar
conclusion but on different

grounds. It held that a court

does not need personal

restraining order against a
nonresident defendant as long as

jurisdiction to issue a temporary

Appellate Court did, they both acknowledged that due process prohibits an abuse prevention order issued without personal jurisdiction from imposing any

personal obligations on the
defendant. Bartsch v. Bartsch,

defendant to take any action
prohibitory order does not

the order does not require the

" (b) ecause the issuance of a

supra, 636 N.W.2d 10 (" (t)he order here does not attempt to
impose a personal judgment
against the defendant"); Caplan
v. Donovan, supra, 450 Mass. 47q

implicate any of defendant i s
substantive rights Id.,

Page 5

2008 Conn. Super. LEXIS 3223, *10

impose limits (*11) . i (i) t

(" (d) ue process

considerations do

has long been the rule that a

interstate or international commerce; (4) owns, uses or possesses any real property

valid judgment imposing a
personal obligation . may be
entered only by a court having jurisdiction over the person of

situated within the state;
., or a computer network . . located within the state.

or (5) uses a computer

Bartsch and Caplan courts also
held that due process requires

the defendant i") . Both the
Bartsch v. Bartsch, supra, 9;
Caplan v. Donovan, supra, 470.

The portions of §52-59b most likely to be applicable in the present case are

that the defendant receive notice to be heard. and an opportunity

subsections (a) (2) committing a

tortious act within the state, and (a) (3) engaging in a persistent

course of conduct. 5 Under
nonresident individual who "commits a

The Connecticut long arm statute
that is applicable to §46b-15 is
codified in §52-59b, which provides in

personal jurisdiction over a
tortious act within the state. "
that a nonresident "commits a tortious act within the state" for purposes of

§52-59b(a) (2) the court can exercise

relevant part:

Several Connecticut courts have held

(a) As to a cause of action arising from any of
the acts enumerated in this

exercise personal
an

section, a court may

§52-59b (a) (2) by sending a communication whose content may be
considered tortious directly into
Connecticut. See, e. g. , Oppenheim v.

jurisdiction over any nonresident individual

Erwin, Superior Court, judicial
district of New Haven, Docket No. CV
00 0441611 (April 9, 2001, Licari, J.)

business within the state;
arising from the act; (3)

who in person or through agent : (1) Transacts any

Super. LEXIS 1014) (allegation that

(29 Conn. L. Rptr. 562, 2001 Conn.

(2) commits a tortious act within the state, except as

the defendant sent threatening letter
to plaintiff in Connecticut satisfies §52-59b(a) (2)) i (*13) Horniatko v.

defamation of character
commits a tortious act
outside the state causing
injury to person or property within the state, except as

to a cause of action for

No. CV 044000332 (June 21, 2005,
Shapiro, J.) (39 Conn. L. Rptr. 566,

Riverfront Ass 'n., Superior Court, judicial district of Hartford, Docket

2005 Conn. Super. LEXIS 1534)
(allegation that defendant made
solicitation phone calls to plaintiffs

defamation of character
arising from the act, if

to a cause of action for

in Connecticut satisfies
§52-59b (a) (2)); Doe v. Oliver,
(May 19, 2003, Dubay, J.) (34 Conn. L.

such person or agent (A)

regularly does or solicits
business, or engages in any other persistent course of

Superior Court, judicial district of

Waterbury, Docket No. CV 990151679 Rptr. 634, 2003 Conn. Super. LEXIS
1498) (allegation that defendant sent e-mail containing offensive statements to recipients in Connecticut satisfies
§52-59b (a) (2)). 6

conduct, or derives substantial revenue (*12)
from goods used or consumed or services rendered, in the

state, or (B) expects or

should reasonably expect the
the state and derives
substantial revenue from

5 Subsection (a) (1) is
inapplicable because there is no

act to have consequences in

allegation that Fergusan has

transacted business in

Page 6

2008 Conn. Super. LEXIS 3223, *13

Connecticut. Subsection (a) (3) is
also probably inapplicable, even
committed a tortious act outside

Skolnick, J.) (declining to
plaintiffs offered no proof that

though Fergusan arguably

exercise personal jurisdiction
under §52-59b (a) (2) bècause "the

the state causing injury to a person in the state, because there is no allegation that he

business, derives substantial revenue from goods used or
consumed or services rendered in Connecticut, or either expects or should reasonably expect that his

regularly does or solicits

present in Connecticut (*15) misrepresentation was
committed") ¡Whitney v. Taplin,

when the alleged
Superior Court, judicial district

(the defendant) was physically

of Fairfield, Docket No. CV

97339190 (November 6, 1997,

Stodolink, J.) (20 Conn. L. Rptr.

tortious acts would have
consequences in Connecticut and derives substantial revenue from

610, 1997 Conn. Super. LEXIS

2987) (exercising personal

jurisdiction pursuant to

interstate or international commerce. The one portion of
subsection (a) (3) (*14) that is

defendant was physically present
in Connecticut when he made the

§52-59b(a) (2) because the

possibly applicable is the
provision that he "engages in any

alleged misrepresentations) .

These cases have based their
interpretation of §52-59b (a) (2)

conduct." Subsections (a) (4) and (a) (5) are likewise inapplicable because there is no allegation

other persistent course of

on the judicial interpretation
given to New York's similar long arm statute. "Since Feathers v.

uses any real property in
Connecticut or that either has used a computer or a computer
network in Connecticut.

that Fergusan owns, possesses, or

McLucas, 15 N.Y.2d 443, 446-64,
(209 N.E.2d 68, 261 N.YS.2d 8)

(1965), the New York provision
has been interpreted to mean that a nonresident does not i commit a

exercise personal jurisdiction pursuant to §52-59b (a) (2) , " (r) egardless of where the harm
is suffered the defendant
must be physically present within

6 Some trial courts have held, however, that for the court to

tortious act within the state r

unless he is physically present in the state while the tort is

committed." Cody v. Ward, 954
F.Sup. 43,46 (D.Conn. 1997). The court in N.E. Contract Packers v. Beverage Services, supra, 6 Conn.

the state at the time of
tortious act)." See, e.g., N.E.

commission (of the alleged
Contract Packers v. Beverage

L. Rptr. 583, adopted this
interpretation of §52-59b(a) (2)

in reasoning that " (s) ince
(Connecticut i s) statute was
enacted by the legislature using the New York statute as a model, judicial interpretation given to

Services, Superior Court,

Docket No. CV 100039 (June 17,
1992, Gaffney, J.) (6 Conn. L.
Rptr. 582, 584, 1992 Conn. Super.

judicial district of i Waterbury,

the New York statute has some
significance." In view of Knipple

LEXIS 1811) (finding
because co-defendant made phone
Abrams v. Riding High Dude Ranch, Superior Court, judicial district

v. Viking Communications Ltd.,

§52-59b(a) (2) inapplicable

23 6 Conn. 6 0 2 , 6 74 A. 2 d 42 6
(1996) , (*16) discussed in the text above, however, this court concludes that the Connecticut

call from Florida); see also
of Fairfield, Docket No. CV 97

view of these cases.

Supreme Court would not adopt the

3345 (November 21, 1997,

0345046, 1997 Conn. Super. LEXIS
In Knipple v. viking Communications

Page 7

2008 Conn.. Super. LEXIS 3223, *16

Ltd. , 236 Conn. 602, 674 A.2d 426 (1996), the Supreme Court held that " (f) alse representations entering
Connecticut by wire or mail constitute tortious conduct in Connecticut under §33-411 (c) (4) ." 7 "Although in that

however, "an internet posting . is
not i sent i anywhere in particular, but

rather can be accessed from anywhere

in the world." (Emphasis added.)
Dailey v. Popma, 662 S.E.2d 12, 19

case the court was addressing the

issue of personal jurisdiction under .
Weitzman, 677 F.Sup. 95, 98 (D.Conn.

Connecticut authority addressing the

(N.C.Ct.App. 2008). There is no

(General Statutes) §33-411 (c) (4) , it cited with approval David v.
1987), in which the District Court

exercise of personal jurisdiction over nonresident individuals premised upon

internet postings. "Courts in other

held that the transmission of
fraudulent misrepresentations into
Connecticut by mail or telephone was

confronted with jurisdictional questions in the context of posting messages upon a (*18)
listserve or newsgroup, have concluded that the mere posting of messages upon

jurisdictions, (however) , when

i tortious conduct in Connecticut sufficient to establish personal

such an open forum by a resident of
confer jurisdiction upon the latter." Goldhaber v. Kohlenberg, 395 N.J.
(N. J . Super. Ct . App . Di v. 2007).

jurisdiction under Connecticut's long arm statute (s) , §§33-411 (c) (4) and

one state that could be read in a

52-59b(a) (2). '" (Emphasis in

second state was not sufficient to
Super. 380, 928 A.2d 948, 956

original.) Oppenheim v. Erwin, supra,

29 Conn. L. Rptr. 564, 2001 Conn.
Super LEXIS 1014. The Supreme Court's citation of David v. Weitzman, supra, 677 F.Sup. 95, indicates that it would

probably construe §52-59b(a) (2) the
same way that it has construed §33-411 (c) (4). See Oppenheim v. Erwin,
supra, 29 Conn. L. Rptr. 564, 2001
Conn. Super LEXIS 1014; Cody v. Ward,

F.3d 256 (4th Cir. 2002) , cert.

In Young v. New Haven Advocate, 315

denied, 538 U.S. 1035, 155 L. Ed. 2d

1065, 123 S. Ct. 2092 (2003), the

court considered this issue in an action by the warden of a Virgina

supra, 954 F. Sup. 46. (*17) This court concludes, therefore, that a
nonresident defendant does not need to

prison that by contract housed

Connecticut prisoners to alleviate
claimed that certain Connecticut

overcrowding in this state. The warden

be physically present in Connecticut at the time of the commission of the alleged tortious act for him to have
"commit (ted) a tortious act within the state" for purposes of §52-59b(a) (2).

newspapers had posted libelous
articles on their websites. The court

examined "whether the newspapers
manifested an intent to direct their
certain articles discussing conditions

website content- -which included

7 Section 33-411 (now §33-929)
is Connecticut's long arm statute

governing jurisdiction over
foreign corporations. See General

Statutes §33-929. Subsection
(c) (4) (now (f) (4)) contains

merely placing information on the internet "is not sufficient by itself
to subject that person to personal jurisdiction in each State in which
the information is accessed."

in a virginia prison- -to a Virginia audience. " Id. , 263. It held that

nearly identical language to
§52-59b (a) (2) ; it provides in

relevant part: "Every foreign

corporation shall be subj ect to

cause of action arising as
conduct in this state

suit in this state on any

placing information on the
traditional due process

Otherwise, a person

follows out of tortious

personal jurisdiction in
every State, (*19) and the

Internet would be subj ect to

Unlike the letter or email cases,

principles governing a

Page 8

2008 Conn. Super. LEXIS 3223, *19

persons outside of its borders would be subverted. (T) he fact that the
be accessed anywhere,
including Virginia, does not

State's jurisdiction over

" (i) nternet activity directed at (the
forum state) and causing injury that

gives rise to a potential claim

cognizable in (that state) is
consistent with the (standard) used by the Supreme Court in Calder v. Jones,

newspapers i websites could

by itself demonstrate that

the newspapers were
intentionally directing
their website content to a
Virginia audience. Something

L. Ed. 2d 804 (1984)." Young v. New
Haven Advocate, supra, 315 F. 3d 262.
In Calder a California actress brought

465 U.S. 783, 104 S.Ct. 1482, 79

suit there against a reporter and an
editor in Florida who wrote and edited

more than posting and
accessibility is needed to

in that state a National Enquirer
article claiming that the actress had a drinking problem. The Supreme Court

indicate that the
(albeit electronically)

(newspapers) purposefully

held that California could exercise
personal jurisdiction over

directed (their) activity in
a substantial way to the

the Florida

postings, manifest an intent

must, though the Internet
Virginia readers.

forum state. The newspapers

residents because "California (was) the focal point both of the story and of the harm suffered." Calder, 465 U.S. at 789. The writers' "actions

were expressly aimed at California,"

to target and focus on

the Court said, "(a) nd they knew that

the brunt of (the potentially
devastating) injury would be felt by (the actress) in the State in which

Id. (Quotations omitted; citations omitted.) This is the same standard

she lives and works and in which

adopted by our Supreme Court in

(*21) the National Enquirer has its
The evidence establishes in this

281, 297-98, 661 A.2d 595 (1995), to
find personal jurisdiction under
General Statutes §33-411 (c) over a New

Thomason v. Chemical Bank, 234 Conn.

largest circulation." Calder, 465 U.S.
at 789-90.

York bank being sued by nine
the

case that Fergusan' s YouTube video is

Connecticut residents who were the
bank for alleged violation of its
trust obligations:

more than the mere posting of a
message upon an open internet forum by a resident of one state that could be seen by someone in a second state. The

beneficiaries of a trust managed by

A the bdaerttkemtime,the trustee n placed the a v is ents therefore,
it was foreseeable that one

evidence shows here that he
specifically targeted his message at

Bios by threatening her life and

safety. Several Connecticut trial

or more Connecticut
residents would respond to the (*20) advertisements by
opening a trust account with

courts, following the logic of Thomason v. Chemical Bank, have

personal jurisdiction against foreign

the trustee bank and

Connecticut for the
misadministration of that

thereafter would sue in
trust

specifically decided the issue of corporations premised upon their
Connecticut residents. 8 The court
internet postings based on whether the corporation had specifically targeted

concludes that the evidence here
establishes a sufficient basis to find

Id., 299.

personal jurisdiction under
§52-59b(a) (2). By specifically
targeting a Connecticut resident with its threats to the applicant i slife

As the Young court noted, moreover,

premising personal jurisdiction on

Page 9

2008 Conn. Super. LEXIS 3223, *21

and safety and thereby creating in her a fear for her well-being, the YouTube video created by the respondent can be

deemed a tortious act committed in
this state.

9 In Zippo Manufacturing Co. v. Zippo Dot Com, Inc., supra, 952 F.Sup. 1122-23, the court aptly explained the logic underlying

due process analysis: "A
three-pronged test has emerged

8 Several. See, e _ g. , RJM Aviation Associates v. London

for determining whether the
exercise of specific personal
jurisdiction over a non-resident defendant is appropriate: (1) the

Aircraft Service Center, Inc.,

Superior Court, judicial district of New Britain, Docket No. CV 06 5000572 (June 17, 2008, Gilligan, J.) (45 Conn. L. Rptr. 759, 762,

defendant must have sufficient
out of those contacts, and (3)

"minimum contacts" with the forum

state, (2) the claim asserted
against the defendant must arise
the exercise of jurisdiction must

2008 Conn. Super. LEXIS 1560) (*22) ("the missing element in
the present case is any evidence

that the defendant's internet website specifically targeted

be reasonable. The
"Constitutional touchstone" of
the minimum contacts analysis is

Marcoccia v. Post, Superior Court, judicial district of Fairfield, Docket No. CV 05
5000471 (May 20, 2008, Hiller,
J.) (45 Conn. L. Rptr. 572, 574,

Connecticut customers" ) ;

embodied in the first prong,

purposefully established"
contacts with the forum state.
Burger King Corp. v. Rudzewicz,

"whether the defendant

2008 Conn. Super. LEXIS 1298) ("due to a lack of evidence of

471 U. S . 462, 475, 105 S . Ct .
2174, 2183-84, 85 L.Ed.2d 528
(1985) (citing International Shoe Co. v. Washington, 326 U. S. 310,

interactivity, the web site

offers no grounds for the grant

of personal jurisdiction").

319, 66 S.Ct. 154, 159-60, 90
L.Ed. 95 (1945)). Defendants who

Since §52-59b (a) (2) permits the exercise personal jurisdiction over

Fergusan, the court must next
determine "whether the exercise of jurisdiction over the (defendant)
quotation marks omitted.) Cogswell v. American Transit Ins. Co., supra, 282
seminal case of International Shoe Co.

i reach out beyond one state i and create continuing relationships and obligations
state are subject to regulation (*24) and sanctions in the other State for consequences of their actions." Id. (citing Travelers Health Ass 'n. v. Virginia, 339
U.S. 643, 647, 70 S.Ct. 927, 929,

with the citizens of another

would violate constitutional
principles of due process." (Internal

Conn. 515. "As articulated in the
v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95 (1945), the constitutional due process standard requires that, i in order to subject a defendant to a judgment in personam,

94 L.Ed. 1154 (1950)). "(T)he
foreseeability that is critical
that the defendant i s conduct

to the due process analysis is .

if he be not present within the territory of the forum, he have
certain minimum contacts with it such

and connection with the forum State are such that he should reasonably expect to be haled into court there. " World-Wide
Volkswagen Corp. v. Woodson, 444

that the maintenance of (*23) the

suit does not offend traditional

U.S. 286, 297, 100 S.Ct. 559,

567, 62 L.Ed.2d 490 (1980). This

notions of fair play and substantial

protects defendants from being

justice.'" 9 Cogswell v. American Transit Ins. Co., supra, 282 Conn. 523.

actions in a foreign jurisdiction based on "random, fortuitous or

forced to answer for theft

Page 10

2008 Conn. Super. LEXIS 3223, *24

attenuated" contacts. Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 1478,

case. " (Internal quotation marks omit ted . ) Cogswell v. American Transit
Ins. Co., supra, 282 Conn. 525.

79 L. Ed. 2d 790 (1984) .

"Jurisdiction is proper, however, where contacts proximately result

Even though there is no allegation

himself that create a
'substantial connection i with the

from actions by the defendant

that Fergusan ever stepped foot in Connecticut, the court can exercise
personal jurisdiction over him without

violating the principles of due
process. Rios' s application for a

forum State." Burger King, 411
U.S. at 475, 105 S.Ct. at 2183-84

restraining order arises from
Fergusan's purposeful action of
creating and posting a YouTube video
that threatens her life and safety. He posted the video on an internet medium

(citing McGee v. International

Life Insurance Co., 355 U.S. 220, 223,78 S.Ct. 199, 201, 2 L.Ed.2d

223 (1957))."
"The due process test for personal

that can be disseminated worldwide,

but the content of the video
establishes that he was purposefully

jurisdiction has two related components: the i minimum contacts'
inquiry and the i reasonableness'
determine whether the defendant has # sufficient contacts with the forum
state to justify the court's exercise of personal jurisdiction." (Internal quotation marks omitted.) Id., 524. "The twin touchstones of due process analysis under the minimum contacts

(*25) inquiry. The court must first

posting of the video constitutes
Jones, 465 U.S. 783, 789, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984)
jurisdiction over him. See Calder v.

directing it to the applicant in Connecticut. In this context, his
sufficient "minimum contacts" to justify the exercise of personal

(" (j) urisdiction over petitioners in

California is proper because of their

doctrine are foreseeability and

fairness. '(T) he foresceability that

intentional conduct in Florida calculated to cause injury to
respondent in California"). Moreover,

is critical to due process analysis is that the defendant's conduct

and connection with the forum State are such that he should reasonably

over him does not offend traditional

the exercise of personal jurisdiction
(*27) placing a video on YouTube

anticipate being haled into court

there. i II United States Trust Co. v.

notions of fairness. It should have been foreseeable to Fergusan that by

Bohart, 197 Conn. 34, 41, 495 A.2d

1034 (1985) , citing World-Wide
Volkswagen Corporation v. Woodson, 444

answer an application seeking a
restraining order against him.

threatening Bios in Connecticut he could be haled into this state to

U.S. 286, 297, 100 S.Ct. 559, 62

L.Ed.2d 490 (1980) . "Whether

a court to have jurisdiction is
Corp. v. Jowdy, 190 Conn. 48, 52, 459

sufficient minimum contacts exist for

Furthermore, Connecticut has a
strong interest in protecting its
citizens from domestic abuse, and the plaintiff has an obvious interest in

clearly dependent on the facts of each

particular case. II Standard Tallow

A.2d 503 (1983). "Once minimum

contacts have been established, (t) he
second stage of the due process
inquiry asks whether the assertion of

obtaining convenient and effective relief in Connecticut. If the court cannot exercise personal jurisdiction
in this case, II the unpalatable choices

remaining are either to require the
victim of abuse to return to the State

personal jurisdiction comports with
'traditional notions of fair play and substantial justice'--that is, whether

in which the abuse occurred in order

to obtain an effective abuse
prevention order or, alternatively, to

it is reasonable under the circumstances (*26) of the particular

wait for the abuser to follow the

Page 11

2008 Conn. Super. LEXIS 3223, *27

victim to (Connecticut) and, in the

concludes

that it has jurisdiction
the respondent to enter a

an order from a (Connecticut) court."
Caplan v. Donovan, supra, 450 Mass.

event of a new incident of abuse, seek

469-70. Accordingly, the plaintiff i s interest in obtaining and the state i s
interest in providing relief and

order protecting the The restraining order previously entered on a temporary basis is granted for six months,
subj ect to further extension as may be

restraining applicant.
allowed by

(*28) over

protection from domestic abuse

outweigh any burden Fergusan may face
in defending this case in Connecticut. Exercising personal jurisdiction over

law.

BY THE COURT
STEPHEN F. FRAZZINI

him is neither unjust nor otherwise
violates the constitutional principles of due process. The court therefore

JUDGE OF THE SUPERIOR COURT

CERTIFICATION OF SERVICE
This is to certify that a copy of the foregoing was mailed, first class, postage prepaid, on
February 18,2009, to:

J ames A. Newsom

Attorneys for Defendant Matthew C. Ryan

MUISTERI SPROTT RIGBY NEWSOM AN ROBBINS, P.C. 3323 Richmond Avenue Houston, TX 77098
Susan O'Donnell, Esq.

Halloran & Sage LLP One Goodwin Square

Hartford CT 06103-4303

/s/ Ben;amin Berkowitz

436441.01