Bittman v. Fox et al
Filing
127
ORDER: For the reasons stated more fully below, Defendant Dan Kleinman's motion to dismiss the second amended complaint against him for lack of personal jurisdiction 103 is granted, and this case is terminated. Signed by the Honorable John J. Tharp, Jr on 5/16/2016. (For further details see order)Mailed notice(air, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BRIDGET BITTMAN,
Plaintiff,
v.
MEGAN FOX, et al.,
Defendants.
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No. 14 C 08191
Judge John J. Tharp, Jr.
ORDER
For the reasons stated more fully below, Defendant Dan Kleinman’s motion to dismiss
the second amended complaint against him for lack of personal jurisdiction [103] is granted, and
this case is terminated.
STATEMENT
In this lawsuit, plaintiff Bridget Bittman, a marketing and public relations professional
employed by the Orland Park Public Library, alleges that the defendants 1 undertook “efforts to
defame, discredit, disparage and damage Ms. Bittman’s reputation and thereby cause her to
suffer harm.” This court previously granted the motion to dismiss of one of the defendants, Dan
Kleinman, for lack of personal jurisdiction. Order, ECF No. 89. Bittman thereafter filed a Second
Amended Complaint (“SAC”). SAC, ECF No. 91. In the SAC Bittman still fails to allege that
Kleinman created sufficient case-specific contacts with the state of Illinois to establish a prima
facie case that the Court has specific personal jurisdiction over Kleinman.
Facts
In deciding a motion to dismiss under Rule 12(b)(6) or Rule 12(b)(2), the Court takes as
true all well-pleaded facts alleged in the complaint and resolves any factual disputes in the
affidavits in favor of the plaintiff. Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2012) (Rule
12(b)(6)); Felland v. Chilon, 682 F.3d 665, 672 (7th Cir. 2012) (Rule 12(b)(2)).
The backdrop to this law suit is an ongoing debate between two camps with different
views about the materials that should be accessible in public and school libraries. Defendant
Kleinman is a vocal critic of open-Internet policies advanced by some libraries and the American
Library Association that he believes make sexually inappropriate materials available in libraries;
Kleinman authors a blog called SafeLibraries and describes himself as a “‘library watchdog’ and
journalist who has voiced critical opinions about library policies and practices, nationwide,
1
All individual defendants other than Mr. Kleinman have now been dismissed.
which allow library patrons to access and view pornography on public library computers.”
According to Bittman, Kleinman is a “close associate” of defendants Fox and Dujan and works
in concert with them to promote “safe libraries.” Bittman and others in the library community
generally defend broader access policies on free speech and anti-censorship grounds. From the
information already at issue in this case, which is still in the pleadings stage, the behavior of
some of the partisans in both camps bears little resemblance to the sort of substantive and
respectful public discourse that should ideally characterize debates about important public policy
issues and instead exemplifies the sort of juvenile tactics one would expect to see the antagonists
in a schoolyard playground argument employ. This lawsuit arises from such an encounter.
The SAC maintains the same core allegations against Kleinman as the last complaint.
Specifically, Bitman alleges that on July 27, 2014, Kleinman published on his “Safe Libraries”
blog a video taken by defendants Fox and Dujan, entitled “Bridget Bittman commits Disorderly
Conduct/Breach of Peace on 7/8/14,” with this allegedly untruthful title and other allegedly
defamatory commentary placed into captions. The video, which is central to the complaint and
properly considered on this motion, records an encounter in the parking lot of the Orland Park
library between Bittman and Diane Jennings, a trustee of the Orland Park library, on the one
hand, and Fox, Dujan, and John Kraft, another “safe libraries” activist, on the other. As seen in
the video, after leaving the library, Bittman and Jennings approach Fox, Dujan, and Kraft, who
are standing on the sidewalk nearby videotaping them and a brief argument ensues in which the
activists refuse to move out of Bittman’s path and Jennings launches a number of expletives at
Kraft, whose own tone and comments are also uncivil. The activists also claim, in subsequent
publications of the video and related commentary, that Bittman and Jennings directed anti-gay
slurs at Dujan during the encounter, but at that point the background noise on the recording
drowns out the audio and no such comments by Bittman are discernible (at least on the basis of
the video available on Kleinman’s blog). The entire incident lasted less than 90 seconds and
could have been avoided entirely if either side had behaved maturely and gone about their
business rather than provoking the opposing group. Instead, several of the antagonists—
specifically, Bittman, Fox, and Dujan, engaged in almost three years of litigation before settling
their dispute.
Defendant Kleinman, who is a resident of New Jersey and claims never to have set foot
in Illinois, had nothing to do with this encounter. He finds himself embroiled in this lawsuit,
however, because he posted the video, and some related commentary, on the “safe libraries” blog
he publishes from his home. The SAC alleges that two statements made by Kleinman were
defamatory. Kleinman’s July 27 blog post, see http://safelibraries.blogspot.com/2014/07/gayhate-at-your-library.html, is entitled “Gay Hate @ Your Library.” In it Kleinman writes that the
video shows Bittman “attack[ing] a gay man.” The SAC refers to this statement as the
“Republication Statement.” SAC ¶ 98, ECF No. 91. Bittman further alleges that—at some
unspecified time and place—Kleinman has characterized her as a “homophobe,” and that on
August 21, 2014—again, with no context specified—“defendant Kleinman expressly
characterized Ms. Bittman as a ‘gay hater’”; she dubs the latter statement “the Gay Hater
Statement.” Id. ¶¶ 138-139. According to the SAC, “Ms. Bittman is not a ‘gay hater’ or
‘homophobe.’” Id. ¶ 140.
2
In addition to reprising these allegations from the First Amended Complaint, the SAC
also contains the following new allegations about Kleinman and his contacts with the state of
Illinois:
Defendant Kleinman further republished the July 8 Video by
providing a link to the July 8 Video in comments he made in
response to articles found on the website known as Illinois Leaks:
Edgar County Watchdogs (“Edgar County Watchdogs”). Edgar
County Watchdogs is a website on which articles appear relating to
numerous counties in the State of Illinois. Edgar County
Watchdogs posts numerous articles regarding the Defendants’
interactions with the Orland Park Public Library. Along with the
link to the July 8 Video he posted on the Edgar County Watchdogs
website, Defendant Kleinman again falsely stated that Ms. Bittman
“attacked a gay man.” Defendant Kleinman further republished the
July 8 Video by providing a link to the July 8 Video in comments
he made to an article [sic] concerning the Orland Park Public
Library on the website for the Chicago Tribune. Defendant
Kleinman further republished the July 8 Video by providing a link
to the July 8 Video in multiple tweets published through the social
media platform Twitter using his handle @safelibraries.
SAC ¶¶ 100-106, ECF No. 91.
As to Kleinman’s contacts with Illinois, Bittman now alleges:
Kleinman has availed himself of Illinois laws by filing numerous
Freedom of Information Act (“FOIA”) requests related to
Bittman’s position at the Orland Park Public Library, pursuant to
the Illinois Freedom of Information Act, 5 ILCS 140/1, et seq.
Further, Kleinman directed his conduct toward Ms. Bittman in this
jurisdiction by appearing via video-teleconference at Orland Park
Public Library Board meetings. Additionally, Kleinman has further
availed himself of Illinois laws by filing a complaint with the
Illinois Attorney General in relation to Orland Park Public Library
meetings and alleged violations of the Illinois Open Meetings Act,
5 ILCS 120/1, et seq. In a further effort to harm Ms. Bittman in
this jurisdiction, Kleinman posted comments relating to his
wrongful conduct in response to several Chicago Tribune articles
about the Orland Park Public Library on the Chicago Tribune
website
(per
example,
http://www.chicagotribune.com/
suburbs/dailysouthtown/news/ctstaorlandlibrarysettlest03202015
0319story). In addition, he posted comments to articles found on a
website known as Illinois Leaks: Edgar County Watchdogs
(“Edgar County Watchdogs”) that reports on activities in Cook
County and the surrounding Illinois counties (per example,
3
http://edgarcountywatchdogs.com/2014/07/orland-park-libraryofficials-call-people-fruit-faggotgay/).
SAC ¶¶ 13-16, ECF No. 91.
The SAC alleges, in relevant part, that Kleinman defamed Bittman and committed the
tort of false light invasion of privacy. Counts Five and Six, as they pertain to Kleinman, seek
relief for the republication of the July 8 video with the “Republication Statement.” Counts Eight
and Nine are directed at Kleinman’s “Gay Hater Statement.” Kleinman again moves to dismiss
the Bittman’s complaint for lack of personal jurisdiction and failure to state a claim.
DISCUSSION
Kleinman argues that Bittman has not cured any of the deficiencies with regard to
personal jurisdiction that this Court noted in its prior order. He again contends, as this Court
previously concluded, that he is not subject to general personal jurisdiction because he has never
been to Illinois, does not own property here, do business here, or otherwise engage in ongoing
contact that makes Illinois his “home.” Kleinman further argues that he does not have sufficient
litigation-related contacts to allow for specific personal jurisdiction. Kleinman operates his blog
from his home in New Jersey. He also contends that he has never directed any blog post toward
Illinois readers and that he has never directed “any activities, let alone tortious activities” toward
Bittman or Illinois.
A federal court in Illinois may exercise personal jurisdiction over Kleinman if the Illinois
long-arm statute would allow it. See Fed. R. Civ. P. 4(k)(1)(A); uBID, Inc. v. GoDaddy Grp.,
Inc., 623 F.3d 421, 425 (7th Cir. 2010). Because Illinois’ statute contains a catch-all provision
that permits personal jurisdiction if it would be authorized by either the Illinois Constitution or
the United States Constitution, the state statutory and federal constitutional requirements merge.
Id.; see 735 Ill. Comp. Stat. 5/2-209(c).
Personal jurisdiction may be “general” or “specific.” Daimler AG v. Bauman, 134 S. Ct.
746, 754 (2014); Int’l Shoe Co. v. State of Wash., Office of Unemployment Comp. & Placement,
326 U.S. 310, 318 (1945). General personal jurisdiction exists where the defendant’s continuous
operations within the forum state are “so substantial and of such a nature as to justify suit against
it on causes of action arising from dealings entirely distinct from those activities.” Daimler AG,
134 S. Ct. at 754 (quoting Int’l Shoe Co., 326 U.S. at 318). “For an individual, the paradigm
forum for the exercise of general jurisdiction is the individual’s domicile.” Goodyear Dunlop
Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2853 (2011).
Bittman, again, apparently does not dispute that the courts of Illinois would lack general
personal jurisdiction over Kleinman. And given that Kleinman has never been to the state, it is
plain that it is not his domicile, and Bittman has not alleged “continuous operations” or contacts
that could possibly subject him to general personal jurisdiction in Illinois. Therefore, once again,
the question is solely whether the Illinois courts could exercise specific personal jurisdiction
against Kleinman with respect to the defamation and false-light claims based on the
Republication and Gay-Hater statements.
4
Specific personal jurisdiction exists if Bittman’s defamation and false-light claims
against Kleinman arise out of Kleinman’s constitutionally sufficient contacts with the forum
state. See uBID, Inc., 623 F.3d at 425; Helicopteros Nacionales de Colombia, S.A. v. Hall, 466
U.S. 408, 414 n.8 (1984). “The key question is therefore whether the defendant [has] sufficient
‘minimum contacts’ with Illinois such that the maintenance of the suit ‘does not offend
traditional notions of fair play and substantial justice.’” Tamburo v. Dworkin, 601 F.3d 693, 700701 (7th Cir. 2010), citing Int’l Shoe Co., 326 U.S. at 316. Specific jurisdiction requires that (1)
the defendant has purposely directed his activities at the forum state or purposefully availed
himself of the privilege of conducting business in the state, and (2) the alleged injury arises out
of the defendant’s forum-related activities. Id. at 702, citing Burger King Corp. v. Rudzewicz,
471 U.S. 462, 472 (1985).
As in its previous ruling, this Court finds Calder v. Jones, 465 U.S. 783 (1984), and the
Seventh Circuit’s Tamburo decision instructive. In Calder, the Supreme Court held that
California could exercise personal jurisdiction in a libel action over the author and editor of an
article published in the National Inquirer about the actress Shirley Jones, although the
defendants were Florida residents, the article was written and edited there, and the tabloid was a
Florida corporation. See id. at 785-86. The Supreme Court reasoned:
The allegedly libelous 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. In sum, California is the focal point
both of the story and of the harm suffered. Jurisdiction over petitioners is
therefore proper in California based on the “effects” of their Florida
conduct in California.
Calder, 465 U.S. at 788-89. The Court further reasoned that the defendants’ “intentional, and
allegedly tortious, actions were expressly aimed at California” where “they
knew that the brunt of that injury would be felt by respondent in the State in which she lives and
works and in which the National Enquirer has its largest circulation.” Id. at 789-90.
In Tamburo, the Seventh Circuit primarily drew upon Calder when charged “to apply
long-established rules for asserting personal jurisdiction over foreign defendants to the relatively
new setting of torts committed over the Internet.” 601 F.3d at 697. There, the owners of websites
providing free information about dog breeds were sued for defamation and various business torts
after they published critical posts about and encouraged a boycott of the operator of a dogbreeding software company who had used information from those websites. The Seventh Circuit
began its analysis by extracting from Calder three “requirements” to show “purposeful
direction,” namely: “(1) intentional conduct (or ‘intentional and allegedly tortious’ conduct); (2)
expressly aimed at the forum state; (3) with the defendant’s knowledge that the effects would be
felt—that is, the plaintiff would be injured—in the forum state.” Tamburo, 601 F.3d at 703. As
to the key inquiry—whether website operators had “expressly aimed” their conduct at the state of
Illinois, the appellate court answered in the affirmative, reasoning that the individual defendants
“published false and defamatory statements” about plaintiff, encouraged a boycott of his
5
business, and published his address urging readers to contact and harass him, all “with the
knowledge that Tamburo lived in Illinois and operated his business there.” Id. at 706. “Thus,
although they acted from points outside the forum state, these defendants specifically aimed their
tortious conduct at Tamburo and his business in Illinois with the knowledge that he lived,
worked, and would suffer the ‘the brunt of the injury’ there.” Id.
Since Calder, and even since Tamburo, however, the Supreme Court has further clarified
that the situs of the plaintiff’s injury is relevant but not sufficient to establish minimum contacts.
Walden v. Fiore, 134 S. Ct. 1115 (2014), emphasized that the relation between the foreign
defendant and the forum state “must arise out of contacts that the ‘defendant himself’ creates
with the forum State. 134 S. Ct. at 1122, citing Burger King Corp. v. Rudzewicz, 471 U.S. 462,
475 (1985) (emphasis in original). Furthermore, the analysis “looks to the defendant's contacts
with the forum State itself, not the defendant’s contacts with persons who reside there.” Id.
Finally, the Court clearly stated that “the plaintiff cannot be the only link between the defendant
and the forum”; rather, it “is the defendant’s conduct that must form the necessary connection
with the forum State.” Id. All of these principles apply with equal force when intentional torts are
alleged. Id. at 1123. The Walden Court stated that these principles had driven the result in Calder
because in that case, the defendants had developed their story by contacting sources located in
California and “wrote an article for publication in California,” where they knew that their tabloid
had its largest circulation (of more than 600,000 copies) and would be most likely to damage
Jones’s reputation there. Id. at 1124. The reputational injury incurred as a result of the article
being read by hundreds of thousands of readers in California “connected the defendants’ conduct
to California, not just to a plaintiff who lived there.” Id. By contrast, the Court concluded,
personal jurisdiction was lacking in Walden because the location of the plaintiff’s injury was not
a sufficient contact with the forum state of Nevada. Id. at 1125. There, the plaintiff alleged that
the defendant police officer’s intentionally tortious conduct in Georgia—wrongfully seizing and
retaining the plaintiffs’ cash and submitting a false probable cause affidavit in support of a
forfeiture action—was not sufficient to support personal jurisdiction in Nevada, even if the
defendant acted with the knowledge that his conduct would injure the plaintiffs in Nevada.
Building on Walden, the Seventh Circuit held in Advanced Tactical Ordnance Sys., LLC
v. Real Action Paintball, Inc., 751 F.3d 796, 801 (7th Cir. 2014), that the district court erred in
concluding that personal jurisdiction could be exercised in a trademark case over a defendant
maker of projectile irritants that allegedly misled consumers into believing it was the only maker
of PepperBall products. The Court held that there was no personal jurisdiction over the
defendant, Real Action, in Indiana, despite the following contacts: “Real Action fulfilled several
orders of the allegedly infringing projectiles for purchasers in Indiana; second, it knew that
Advanced Tactical was an Indiana company and could foresee that the misleading emails and
sales would harm Advanced Tactical in Indiana; third, it sent at least two misleading email blasts
to a list that included Indiana residents; fourth, it had an interactive website available to residents
of Indiana; and finally, it put customers on its email list when they made a purchase, thereby
giving the company some economic advantage.” Id at 801. The Seventh Circuit reasoned that the
plaintiff has no evidence of any actual sales by Real Action in Indiana, and that, in any event, de
minimis sales would not support personal jurisdiction. Id. Moreover, the foreseeability of the
plaintiff’s injury in Indiana, its home state, was not relevant to whether the defendant itself had
created contacts with the forum state. Id. at 802. Finally, the defendant’s online activities—“the
sending of two allegedly misleading emails to a list of subscribers that included Indiana residents
6
and the maintenance of an interactive website”—did not show that the defendant “targeted
Indiana somehow.” Id. at 803-803.
Previously, this Court held that Bittman’s allegations were insufficient to make out a
prima facie case of specific personal jurisdiction because, in summary, the fact that Kleinman
republished and commented upon a video concerning an Illinois resident employed by an Illinois
library on a subject-specific “watchdog” website that is accessible by anyone, anywhere, did not
constitute conduct “expressly aimed at” the State of Illinois. In particular, this Court noted that
operating even an “interactive” website “should not open a defendant up to personal jurisdiction
in every spot on the planet where that interactive website is accessible.” Advanced Tactical
Ordnance Systems, 751 F.3d at 803. This Court further noted that Bittman had not plausibly
alleged any concerted activity between Kleinman and defendants (and Illinois residents) Fox or
Dujan, such as having contacted them as “sources” for his blog post rather than republishing
their publicly available content wholesale. Nor had Bittman plausibly alleged that Kleinman had
reason to believe that his blog post would be read widely (or even at all) in Illinois; there are no
allegations that the blog has an Illinois readership, let alone a significant one, in marked contrast
to Calder. In short, Bittman had not shown any connection between Kleinman’s allegedly
defamatory conduct and the State of Illinois except for her own presence (and therefore her
injury) there.
Kleinman now argues that the SAC suffers from all the same defects and that the
additional allegations do not strengthen the case for specific personal jurisdiction, and this Court
agrees that many of the new allegations are irrelevant to specific personal jurisdiction in this
case. For example, Bittman now argues: “Kleinman availed himself of Illinois laws by filing
numerous state FOIA requests related to Ms. Bittman’s position at the OPPL; arranging to
appear and appearing via video teleconference at OPPL meetings that occurred in Orland Park,
Illinois; and, filing a complaint with the Illinois Attorney General in relation to OPPL meetings
and alleged violations of the Illinois Open Meetings Act.” Mem. 5-6, ECF No. 117 (emphasis in
original). This is activity that provides some connection between Kleinman and the state, but it
bears at best a remote and tangential relationship with the defamation and false-light claims
Bittman has asserted. Those claims plainly do not “arise out” of any of this conduct, and
therefore, it does not support her case for specific personal jurisdiction over Kleinman with
respect to the content of the July 8 video, the Republication Statement, or the Gay Hater
Statement. See Advanced Tactical, 751 F.3d at 801 (to establish specific personal jurisdiction, it
is the defendant’s “suit-related” conduct that must create the substantial connection with the
forum state).
Yet some of Bittman’s new allegations are relevant to her argument for personal
jurisdiction. Specifically, Bittman now alleges that Kleinman not only published the July 8 video
on his own blog, but that he republished it in other online outlets that have more direct
connections to Illinois than does Kleinman’s own blog. He “provid[ed] a link to the July 8 Video
in comments he made in response to articles found on” the Edgar County Watchdogs website,
“on which articles appear relating to numerous counties in the State of Illinois.” In those
comments, he again “stated that Ms. Bittman ‘attacked a gay man.’” Bittman further alleges that
Kleinman “provid[ed] a link to the July 8 Video in comments he made to an article concerning
the Orland Park Public Library on the website for the Chicago Tribune.”
7
Kleinman contends that his comments on Illinois-based websites are of no import
because “Plaintiff does not allege in her latest Complaint that Kleinman directed these comments
to Illinois readers, or had any reason to believe that any statements made in the comment section
of either website would be read widely here, or would reach a significant Illinois readership.”
Reply 8, ECF No. 119. He continues: “It is highly unlikely that any such statements—which
were not in an article themselves, but rather buried in the comments below an article—would
circulate widely. Additionally, though these websites are read by people in Illinois, they are also
publicly available and accessible by anyone, anywhere (to a blogger in New Jersey, for
example).” Id.
Kleinman’s argument is not entirely persuasive. Bittman is entitled to reasonable
inferences in her favor. According to the SAC, Kleinman “republished” the same allegedly
defamatory July 8 video on both the Chicago Tribune and Edgar County Watchdogs websites.
Although these websites may be accessible worldwide, it is reasonable to infer that their
readership includes significant numbers of Illinois residents because they cover state and local
news.
Even so, simply adding the allegations that Kleinman “republished” the July 8 video in
the comments sections of two websites with (this court will assume) substantial Illinois
readerships is not sufficient to confer specific personal jurisdiction over her claims. First,
although the point is even more pertinent to the merits of Bittman’s claims, a reference to a
hyperlink is not likely to constitute “publication” for purposes of Illinois defamation law. 2 As
this Court previously has noted: “[a] hyperlink . . . does not duplicate the content of a prior
publication; rather, it identifies the location of an existing publication and, if selected, instructs a
search engine to retrieve that publication.” Doctor's Data, Inc. v. Barrett, ---F. Supp. 3d ----, No.
10 C 03795, 2016 WL 1086510, at *33 (N.D. Ill. Mar. 21, 2016). For this reason, several courts
have concluded that displaying a hyperlink is not the same as restating the alleging defamatory
material. See id. (collecting cases). For purposes of specific personal jurisdiction, Bittman’s
claims must arise directly from Kleinman’s Illinois-based activities, but she can have no claim
against him that arises from the simple posting of a hyperlink, which is not “publication” of
material. Indeed, she does not appear to have broadened her defamation and false-light claims to
include this alleged activity; she continues to focus only on the Republication Statement and the
Gay-Hater statement.
Second, the interactive nature of online communication—which by its nature can be
pursued from almost any location at any time—diminishes the jurisdictional import of those
communications. See Advanced Tactical, 751 F.3d at 803. Particularly with respect to a
publication like the Tribune website, with a substantial national readership, posting a comment to
an online article seems several steps removed from deliberating targeting tortious
communications toward an audience in a particular state. Cf. NTE LLC v. Kenny Constr. Co., No.
14 C 9558, 2015 WL 6407532, at *3 (N.D. Ill. Oct. 21, 2015) (“[Visiting a website] is unlike
2
A claim of defamation under Illinois law requires pleading that “the defendants made a
false statement concerning [the plaintiff], that there was an unprivileged publication to a third
party with fault by the defendant, which caused damage to the plaintiff.” Krasinski v. United
Parcel Serv., Inc., 124 Ill. 2d 483, 490, 530 N.E.2d 468, 471 (1988).
8
other examples of minimum contacts because the act of visiting a website that is not situated in a
specific geographical location does not purposefully avail the user of the protection and benefit
of the server state’s laws.”); Gullen v. Facebook.com, Inc., No. 15 C 7681, 2016 WL 245910, at
*2-3 (N.D. Ill. Jan. 21, 2016) (use of interactive software by millions of Illini insufficient to
provide specific personal jurisdiction over Facebook).In the posts that Bittman identifies,
moreover, Kleinman was responding to content posted by others, rather than reaching into the
state to disseminate defamatory material.
Finally, Bittman’s vague and cursory descriptions of Kleinman’s conduct also diminish
the jurisdictional import of her new allegations; Bittman simply does not give sufficient detail
about what Kleinman said, or where, or when, to assess the degree to which the alleged
comments are suit-related or reflect efforts to injure Bittman in Illinois. The hyperlinks included
in ¶ 16 of the SAC shed no further light, as they do not support Bittman’s allegations. The one
purporting to link to a Chicago Tribune article is defective. The link to the “Edgar County
Watchdogs” website brings a post to which the commenter “safelibraries” posted a hyperlink to
Kleinman’s original July 27, 2014, blog post with no further statements. This has no relevance to
Bittman’s claims about the “gay hater statement” (Counts 8 and 9) and only a remote connection
to the Republication Statement that is the subject of Counts 5 and 6. That connection is no
stronger than the one in Advanced Tactical where directing emails to a list that included Indiana
residents was deemed not to be behavior that “targeted” Indiana residents. 751 F.3d at 803-803.
Indeed, Bittman does not allege that Kleinman’s hyperlink directed any traffic to the
Republication Statement; she instead complains that he made “comments” that are not further
identified or explained in any way, see SAC ¶ 16, and that he linked to the July 8 video, see SAC
¶ 100. If sending emails directly to residents of the forum state does not equate to “deliberate
actions by the defendant to target or direct [himself] toward the forum state,” Advanced Tactical,
751 F.3d at 803, then it is difficult to conclude that the posting of undescribed comments in
response to two online articles could do so.
Despite this Court’s express suggestion that she do so if possible, Bittman has not alleged
that Kleinman reached into Illinois to find sources in Illinois for his allegedly defamatory blog
posts, nor has she provided any detail about how Kleinman allegedly worked “in concert with”
Dujan or Fox with respect to his allegedly defamatory actions. See Order 7, ECF No. 89. Nor has
Bittman added any detail regarding when, where, and to whom Kleinman allegedly made the
“Gay Hater” and “homophobe” comments, even though this Court pointed out that confusing
deficiency in the First Amended Complaint, See Order 2 n.2, ECF No. 89. It is only the posting
of the unspecified “comments” and hyperlinks to the July 8 video that add anything to Bittman’s
original jurisdictional allegations against Kleinman. (As already noted, Kleinman’s FOIA
requests or complaints about the library board’s closed meetings have nothing to do with
Bittman’s defamation claims.) Moreover, Bittman has not even mentioned, let alone attempted to
distinguish, the Seventh Circuit’s decision in Advanced Tactical, despite this Court’s reliance on
that case in dismissing the complaint against Kleinman the first time.
Therefore, Bittman has not made a prima facie case that her defamation and false-light
claims against Kleinman arise from conduct that he purposefully directed at the State of Illinois.
Unlike the publisher in Calder, Kleinman had no reason to believe that his blog had a substantial
Illinois readership that would lead to reputational harm to Bittman in her home state. (Indeed,
9
Bittman still has not alleged that SafeLibraries has any Illinois readership. 3) From the links
provided in Bittman’s SAC, it appears that Kleinman’s target audience is an echo chamber of
fellow critics of the American Library Association’s open-Internet policies, not any particular
regional constituency. Absent some plausible allegation that Kleinman, like the Enquirer in
Calder, purposefully created and exploited his own contacts with the state in order to injure
Bittman here, Bittman fails to sufficiently allege suit-related conduct by Kleinman that connects
her claims to the forum state; her own forum-state injuries are not enough to provide that
connection.
Because there has been no prima facie showing that Kleinman expressly directed any
tortious conduct at the State of Illinois, rather than at an Internet audience of fellow activists, this
Court further concludes that it would offend traditional notions of fair play and substantial justice
to exercise personal jurisdiction over Kleinman. “[T[he weaker the defendant's contacts with the
forum state are, the less likely it is that exercising jurisdiction over that defendant is
appropriate.” Illinois v. Hemi Grp. LLC, 622 F.3d 754, 759-60 (7th Cir. 2010). Indeed, where
minimum contacts are lacking, “we need not go further in the personal-jurisdiction analysis.” N.
Grain Mktg., LLC v. Greving, 743 F.3d 487, 496 (7th Cir. 2014). In any event, although there is
some efficiency interest in permitting Bittman to proceed against all the defendants in one
lawsuit, and the State of Illinois has an interest in providing a forum in which its residents may
obtain relief, Kleinman is an outlier among the Illinois-based defendants. The burden of
compelling him to defend a lawsuit from across the country outweighs the other interests, given
the tenuous connection between Kleinman’s allegedly tortious conduct and the forum state.
***
Accordingly, the motion to dismiss is granted based on a lack of personal jurisdiction
over Kleinman, and Kleinman’s other arguments for dismissal need not be considered. Bittman
will be given no further leave to re-plead against Kleinman. She made poor use of her last
opportunity to supply crucial details about litigation-specific contacts between Kleinman and
Illinois and brought almost nothing new to bear in her second brief on personal jurisdiction,
instead largely copying her original arguments. However, this dismissal is without prejudice to
Bittman bringing her claims in a court that may properly assert jurisdiction over Kleinman.
3
Bittman does assert: “Upon information and belief, a significant number of the
Plaintiff’s colleagues, peers and supervisors have become aware of and read the False and
Defamatory Statements. Patrons of the Orland Park Public Library have become aware of and
read the False and Defamatory Statements.” SAC ¶¶ 147-148, ECF No. 91. However, “False and
Defamatory Statements” in the context of the SAC refers to many statements that are not
attributable to Kleinman, see id. ¶ 141, and Bittman nowhere alleges that anyone in Illinois read
the Republication Statement or the Gay Hater statement on Kleinman’s blog or that the blog has
an Illinois readership. Moreover, the issue as to personal jurisdiction over Kleinman is not that
some Illini have read the “False and Defamatory Statements”; that is simply another way of
saying that Illinois is the locus of the plaintiff’s injuries. But it is Kleinman’s contacts with the
state, not Bittman’s, that determine whether the court may exercise specific personal jurisdiction
over him.
10
John J. Tharp, Jr.
United States District Judge
Date: May 16, 2016
11
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