Doe v. Alter et al

Filing 180

MEMORANDUM ORDER RE: JURISDICTION AND TRANSFER denying as moot 160 Motion to Dismiss. Signed by Judge Marvin J. Garbis on 8/11/14. (ca2s, Deputy Clerk) Modified on 8/12/2014 (ca2s, Deputy Clerk).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JANE DOE

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Plaintiff

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vs.

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FREDERICK BARDELL

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Defendant
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CIVIL ACTION NO. MJG-13-1548

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MEMORANDUM AND ORDER RE: JURISDICTION AND TRANSFER
The Court has before it Defendant's Motion to Dismiss
[Document 160] and the materials submitted relating thereto. The
Court has held a hearing and had the benefit of the arguments of
counsel.
Plaintiff has filed suit against a substantial number of
persons who allegedly downloaded and viewed photographs of her
daughters that constitute child pornography.

These photographs

allegedly were taken in Maryland by two individuals, the girl's
father and a colleague ("the Maryland Actors).

The Maryland

Actors were convicted in connection with their actions and have
been incarcerated since 2008.

The pictures, however, continued

to be downloaded, viewed, and exchanged over the Internet.
As of this writing, there are in excess of 90 such lawsuits
pending before the undersigned Judge.

In the instant case, as in the others cases brought by
Plaintiff, she asserts claims in seven Counts:
Count I

Violation of 18 U.S.C. § 2252A

Count II

Violation of 18 U.S.C. § 2255

Count III

Invasion of Privacy – Intrusion Upon
Seclusion Under Maryland Law

Count IV

Invasion of Privacy – Appropriation of Name
of Likeness Under Maryland Law

Count V

Invasion of Privacy – Unreasonable Publicity
Given to Private Life Under Maryland Law

Count VI

International Infliction of Emotional
Distress Under Maryland Law

Count VII

Civil Conspiracy Under Maryland Law

Defendant Bardell, who is not a resident of Maryland and
who is currently incarcerated1 in the Southern District of
Georgia, asserts that this Court cannot exercise personal
jurisdiction over him.
For a federal district court to exercise personal
jurisdiction over a nonresident defendant, two requirements must
be satisfied:
1.

The exercise of personal jurisdiction must be
authorized under the long-arm statute of the
state in which the court is located; and

1

Bardell was convicted in the Middle District of Florida
based, in part, on the presence on his computer of child
pornography that included at least one picture upon which
Plaintiff's case is based.
2

2.

The exercise of jurisdiction must comport with
the due process requirements of the Fourteenth
Amendment.

ASCO Healthcare, Inc. v. Heart of Tx. HealthCare and Rehab.,
Inc., 540 F. Supp. 2d 634, 640 (D. Md. 2008).
The pertinent provision of Maryland's long-arm statute
permits a court to "exercise personal jurisdiction over a person
. . . who directly or by an agent . . . [c]auses tortious injury
in the State by an act or omission in the State." Md. Code Ann.
Cts. & Jud. Proc. § 6-103(b)(3).

The "Court of Appeals [of

Maryland] has found [the civil conspiracy theory] of
jurisdiction included within the Maryland long-arm statute
because the provisions apply to a person who commits acts
'directly or by an agent.'"

Cleaning Auth., Inc. v. Neubert,

739 F. Supp. 2d 807, 816 (D. Md. 2010).
As became clear at the hearing on the instant Motion,
Plaintiff has no basis upon which to make a plausible contention
that the Court could exercise personal jurisdiction over Bardell
based upon anything he personally did in Maryland.

However,

Plaintiff contends that the Court exercise jurisdiction over
Bardell based upon actions taken by him and the Maryland Actors
as part of a conspiracy.

Plaintiff's theory is that: (1) there

was a "conspiracy to perpetuate the harms these children have
endured by viewing, possessing, distributing and otherwise
trading in the images memorializing the horrible abuse these
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children have suffered," Compl. ¶ 3; (2) the Maryland Actors
performed acts in furtherance of the conspiracy in Maryland; and
(3) these acts were performed by the Maryland Actors as coconspirator agents for Bardell.
The Court will assume that Plaintiff can establish that the
Maryland Actors acted as members of some conspiracy, which
included as an objective the viewing of pictures such as those
upon which Plaintiff bases her claims and that within the scope
of the conspiracy, the Maryland Actors distributed those
pictures to other co-conspirators who then downloaded and viewed
them.

However, it appears that Plaintiff, at present, lacks

evidence to establish that Bardell was a member of the
conspiracy that included the Maryland Actors, or that if he was
a member of that same conspiracy, it was while the Maryland
Actors were members.2

2

The highly respected federal jury instructions by Sand,
Siffert et al. state that for a jury to find a defendant guilty
of a substantive offense based on participation in a charged
conspiracy, the jury must find, inter alia, "that the defendant
was a member of that conspiracy at the time the substantive
crime was committed." Sand, Siffert et al., Modern Federal Jury
Instructions (2014), ¶ 19.03, Instruction 19-13, at 19-85. This
instruction is based upon United States v. Pinkerton, 328 U.S.
640 (1946), in which "the Supreme Court [of the United States]
held that a co-conspirator is liable as a principal for certain
substantive offenses committed in furtherance of the conspiracy
while he is a member of it." Id., Comment at 19-86; see also
Pinkerton, 328 U.S. at 645-47 (affirming judgment of conviction
where jury was instructed "on the theory that each petitioner
could be found guilty of the substantive offenses, if it was
found at the time those offenses were committed petitioners were
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Plaintiff seeks jurisdictional discovery to ascertain if
she can find evidence to support her conspiracy jurisdiction
contention.

She seeks, and therefore presumably contends that

she needs for this purpose, the following discovery:
1.

Deposing Mr. Bardell;

2.

Issuing a subpoena under Federal Rule
of
Civil
Procedure
45
to
request
relevant documents from the Department
of Homeland Security, and Special Agent
Joseph
Grey,
individually,
and
including as targets of subpoena any
other
individual
agents
who
were
involved in the investigation;

3.

Deposing
Special
Agent
Grey,
Department of Homeland Security
agent
who
primarily
handled
investigation of Mr. Bardell;

4.

Deposing any other case agents of the
Department of Homeland Security and/or
affiliated agencies involved in or
knowledgeable about the investigation
of Mr. Bardell, including, without
limitation, the beginning, duration,
scope and agreements involved in the
conspiracy the Complaint alleges, its
connection
to
Maryland
and
other
jurisdictionally relevant facts;

5.

Issuing a Rule 45 subpoena to request
relevant documents from the Federal
Bureau
of
Investigation
(“FBI”)
Baltimore Field Office, and Special
Agent Rachel Corn, individually, and
including as targets of subpoena any
other
individual
agents
who
were
involved in the investigation;

the
case
the

parties to an unlawful conspiracy and the substantive offenses
charged were in fact committed in furtherance of it").
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6.

Deposing Special Agent Rachel Corn, the
FBI case agent who primarily handled
the
investigation
of
the
original
conspirators;

7.

Deposing any other case agents of the
FBI and/or affiliated agencies involved
in
or
knowledgeable
about
the
investigation
of
the
original
conspirators,
including,
without
limitation, the beginning, duration,
scope and agreements involved in the
conspiracy the Complaint alleges, its
connection
to
Maryland
and
other
jurisdictionally relevant facts;

8.

Issuing a Rule 45 subpoena to the U.S.
Attorney’s
Office
for
the
Middle
District of Florida for any documents
relating to the prosecution of Mr.
Bardell or otherwise relevant to the
conspiracy and other jurisdictionally
relevant
facts
alleged
in
the
Complaint; and

9.

Issuing a Rule 45 subpoena to the U.S.
Attorney’s Office for the District of
Maryland for any documents relating to
the
prosecution
of
the
original
conspirators or otherwise relevant to
the
conspiracy
and
other
jurisdictionally relevant facts alleged
in the Complaint.

[Document 177] at 1-2.
It is readily apparent that there is a question whether
this Court properly can assert personal jurisdiction over
Bardell.

Moreover, to provide Plaintiff with the jurisdictional

discovery she seeks would greatly burden Bardell, a Defendant
who makes a far from frivolous claim that he is not properly
before this Court.

Furthermore, it appears doubtful that

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Plaintiff – even with the proposed discovery -

would obtain

evidence supporting personal jurisdiction over Bardell.
In contrast to the doubt as to this Court's jurisdiction
over Bardell, there is no doubt that that there is jurisdiction
in the Middle District of Florida.

In this circumstance, the

Court finds it appropriate to transfer the case to that District
to avoid burdening the parties with the substantial cost of the
requested jurisdictional discovery that is unlikely to eliminate
the possibility that, on appeal, proceedings in this Court may
be declared null and void.
Title 28 U.S.C. § 1404(a) provides, in relevant part:
For
the
convenience
of
parties
and
witnesses, in the interest of justice, a
district court may transfer any civil action
to any other district or division where it
might have been brought . . . .
The instant case certainly might have been brought in the
Middle District of Florida.

In view of the jurisdictional

matter discussed herein, the Court adopts the statement made by
Judge Motz of this Court in Tyler v. Gaines Motor Lines, Inc.,
245 F. Supp. 2d 730, 734 (D. Md. 2003).
Because the [jurisdictional] question is a
close one, I will exercise my discretion to
transfer this case in the interests of
justice. See 28 U.S.C. § 1404. For me to
hold that [Bardell] is subject to personal
jurisdiction [in Maryland] would inject into
the case an unnecessary legal issue that
would render the entire litigation null and
void if, on appeal, jurisdiction were found

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to be lacking. . . . Jurisdiction in the
[Middle District of Florida], where [Bardell
allegedly took actions upon which the claims
in the instant lawsuit are based] clearly
would be proper.
Accordingly, I will enter
an order of transfer to that court.
Id.
For the foregoing reasons:
1.

By separate Order, the instant case shall be
transferred to the Middle District of Florida.

2.

Defendant's Motion to Dismiss [Document 160] is
DENIED AS MOOT.

SO ORDERED, on Monday, August 11, 2014.

/s/__________
Marvin J. Garbis
United States District Judge

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