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)

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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 "; Patrick Bateman; (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: (415) 391-5400 Facsimile: (415) 397-7188 EmaI1: Mark Lemley Dure Tangr Lemley Roberts & Kent LLP 332 Pine Street, Suite 200 San Francisco, CA 94104 Phone (415) 362-6666 Email: David N. Rosen David Rosen & Associates PC 400 Orange Street New Haven, CT 06511 Telephone: (203) 787-3513 Facsimile: (203) 789-1605 Email: 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

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