Steele v. Burek et al

Filing 32

OPINION and ORDER GRANTING 11 MOTION to Dismiss Nancy Fitzgerald Hoggard for Lack of Personal Jurisdiction, DENYING 12 MOTION to Dismiss Claims Against Defendant Susan Burek for Failure to State a Claim Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Lisa Steele,
Plaintiff,
v.

Case No. 14-11969

Susan Burek, Jon Shelden, and
Nancy Fitzgerald Hoggard,

Honorable Sean F. Cox

Defendants.
______________________________/
OPINION AND ORDER DENYING DEFENDANT BUREK’S MOTION TO DISMISS
(Doc. #12) and GRANTING DEFENDANT HOGGARD’S MOTION TO DISMISS (Doc.
#11)
This is a defamation case. Plaintiff Lisa Steele (“Plaintiff”) alleges that Defendants Susan
Burek (“Burek”), Nancy Fitzgerald Hoggard (“Hoggard”) and Jon Shelden (“Shelden”)
(collectively, “Defendants”) made false, defamatory statements in numerous forums about Plaintiff
and her book, “Fresh Eggs Daily: Raising Happy, Healthy Chickens . . . Naturally,” which allegedly
damaged Plaintiff’s professional reputation and her business relationships.
This matter is before the Court on Defendant Burek’s Motion to Dismiss For Failure to State
A Claim, (Doc. #12), to which Defendant Shelden has joined (Doc. #25), and Defendant Hoggard’s
Motion to Dismiss For Lack of Personal Jurisdiction (Doc. #11). The motions have been fully
briefed by the parties and the Court heard oral argument on the motions on October 30, 2014. For
the reasons set forth below, the Court shall DENY Defendant Burek’s motion and GRANT
Defendant Hoggard’s motion.
BACKGROUND
Factual Background

Plaintiff Lisa Steele lives in Virginia. (Amd. Compl., Doc. #8, at ¶ 1). Plaintiff is the author
of a book entitled Fresh Eggs Daily: Raising Happy, Healthy Chickens . . . Naturally. (“Fresh Eggs
Daily”) (Amd. Compl., Doc. #8, at ¶ 7). Fresh Eggs Daily contains “advice and know-how on the
subject of raising chickens and other poultry using organic and non-chemical means . . .” (Amd.
Compl., Doc. #8, at ¶ 7).
Defendant Susan Burek is a Michigan resident and a blogger who also writes about organic
poultry farming. (Amd. Compl., Doc. #8, at ¶¶ 2, 8).
Beginning sometime in early 2014, according to Plaintiff, Burek began waging a war against
Plaintiff in order to “remove from circulation [Plaintiff’s book, Fresh Eggs Daily] that Burek views
as a competitive product to a book that she intends to publish.” (Amd. Compl., Doc. #8, at ¶ 13).
Plaintiff makes numerous allegations regarding the types of actions Burek took to attack Plaintiff
personally and professionally. Below are a few key examples of Burek’s allegedly offensive
conduct:
-

Burek sent a letter to Plaintiff and to her publisher, St. Lynn’s Press, alleging
that Plaintiff committed copyright infringement of Burek’s blog posts. (Amd.
Compl., Doc. #8, at ¶ 9);

-

Burek stated on a Facebook page “of a related publication,” that is “Liked”
by more than 250,000 people: “I have legal action filed against Ms. Steele
and St. Lynn’s publishing for intellectual property theft,” even though that
statement was not true. (Amd. Compl., Doc. #8, at ¶ 15);

-

Burek and Shelden “have orchestrated a group effort via online
communications on Facebook and elsewhere, to seed negative reviews and
vindictive feedback . . . for Fresh Eggs Daily . . . [and for Plaintiff’s]
anticipated future works . . . .” (Amd. Compl., Doc. #8, at ¶ 22).

Plaintiff further alleges that Defendant Burek recruited others to assist her in waging this offensive
against her, including Defendants Hoggard and Shelden.

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Defendant Hoggard is a Nevada resident. (Amd. Compl., Doc. #8, at ¶ 4). Plaintiff alleges
that Hoggard assisted Burek by stating that she was “going to contact Better Homes & Gardens,”
at their editorial office in New York, New York to inform them about Plaintiff’s alleged copyright
infringement and “to persuade that publication not to accept contributions from [Plaintiff].” (Amd.
Compl., Doc. #8, at ¶¶ 23-24).
Defendant Shelden is a Michigan resident. (Amd. Compl., Doc. #8, at ¶ 3). Plaintiff alleges
that Defendant Shelden was involved in orchestrating the “group effort” against Plaintiff. (Amd.
Compl., Doc. #8, at ¶ 22). Plaintiff also alleges that Shelden made various offensive comments in
several online forums about Plaintiff and Fresh Eggs Daily. (Amd. Compl., Doc. #8, at ¶¶ 19-20,
22, 25-26, 35).
Plaintiff alleges that she was harmed by Defendants’ activities because her publisher, St.
Lynn’s, “halted printing of the book, costing St. Lynn’s and [Plaintiff] the opportunity to meet rising
demand for the book . . . .” (Amd. Compl., Doc. #8, at ¶ 18).
Procedural History
On May 16, 2014, Plaintiff filed her Complaint against Defendants Burek, Shelden, and
Hoggard based on their allegedly tortious conduct both online and offline. (Doc. #1). Plaintiff
alleged both diversity and federal question jurisdiction. On June 26, 2014, Plaintiff filed a First
Amended Complaint as of right. (Doc. #8). In her Amended Complaint, Plaintiff alleges the
following causes of action:
Count I Count II Count III Count IV -

Defamation against Burek and Shelden;
Defamation Per Se against All Defendants;
Tortious Interference with Contracts and Business Expectancies
against All Defendants;
Declaratory Judgment of Noninfringement of Copyright against

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Burek.1
On July 11, 2014, Defendant Hoggard filed her Motion to Dismiss for Lack of Personal
Jurisdiction. (Doc. #11). Plaintiff responded (Doc. #15) and Defendant Hoggard replied. (Doc.
#17).
Also on July 11, 2014, Defendant Burek filed her Motion to Dismiss for Failure to State a
Claim (Doc. #12). Plaintiff responded (Doc. #16) and Defendant Burek replied. (Doc. #18).
On October 17, 2014, Defendant Shelden appeared in this action (Doc. #24) after being
served via alternate service. (See Order for Alternate Service, Doc. #21). On that same date,
Defendant Shelden filed a “Notice of Joinder/Concurrence” to Defendant Burek’s Motion to
Dismiss. (Doc. #25).
STANDARD OF DECISION
A.

Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6)
When deciding a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil

Procedure, the Court must construe the complaint in the light most favorable to the plaintiff and
must accept all the factual allegations contained in the complaint as true. Lambert v. Hartman, 517
F.3d 433, 439 (6th Cir. 2008).
In order to survive a Rule 12(b)(6) motion to dismiss, Plaintiff’s complaint need contain
only “enough facts to state a claim for relief that is plausible on its face.” See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “Where a complaint pleads facts that are merely consistent
with a defendant’s liability, it ‘stops short of the line between possibility and plausibility of

1

The parties have stipulated to the dismissal of Plaintiff’s Count Four. (Stip. and Order,
Doc. #13). Therefore, arguments pertaining to the issue of whether Burek owns a copyright have
been omitted for the sake of efficiency.
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entitlement to relief.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), citing Twombly, 550 U.S. at
557. “Determining whether a complaint states a plausible claim for relief will . . . be a contextspecific task that requires the reviewing court to draw on its judicial experience and common sense.”
Iqbal, 556 U.S. at 679.
B.

Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(2)
In a motion to dismiss for want of personal jurisdiction under Federal Rule of Civil

Procedure 12(b)(2), the plaintiff has the burden of proving the court's jurisdiction over the defendant.
Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 887 (6th Cir. 2002). “[I]n the face of a
properly supported motion for dismissal, the plaintiff may not stand on his pleadings but must, by
affidavit or otherwise, set forth specific facts showing that the court has jurisdiction.” Theunissen
v. Matthews, 935 F.2d 1454, 1458 (6th Cir. 1991). If the court finds no need for an evidentiary
hearing, “the burden on the plaintiff is relatively slight” and the court must “consider the pleadings
and affidavits in the light most favorable to the plaintiff.” Am. Greetings Corp. v. Cohn, 839 F.2d
1164, 1169 (6th Cir. 1988), citing Welsh v. Gibbs, 631 F.2d 436, 438–39 (6th Cir. 1980). Where no
evidentiary hearing is held, the plaintiff need only make a prima facie showing of jurisdiction to
avoid dismissal. Neogen, 282 F.3d at 887.
However, “[i]f the district court concludes that the written submissions have raised issues
of credibility or disputed issues of fact which require resolution, it may conduct a preliminary
evidentiary hearing. Where this occurs the plaintiff must show by a preponderance of the evidence
that jurisdiction exists.” Cohn, 839 F.2d at 1169, citing Data Disc, Inc. v. Systems Technology
Associates, Inc., 557 F.2d 1280, 1285 (9th Cir. 1977).
ANALYSIS

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I.

Defendant Burek’s Motion to Dismiss For Failure to State a Claim
A.

Defamation Claims

Defendant contends that Plaintiff’s allegations, as they relate to her defamation claims, are
insufficient because the allegedly defamatory statements are true, substantially true, or not plead
with specificity. The parties focus on two statements that Plaintiff claims Burek made, and argues
that neither are sufficient to sustain a defamation action:
“I have legal action filed against Ms. Steele and St. Lynns publishing for intellectual
property theft.” (Amd. Compl. at ¶ 15);
That Plaintiff has only four years of experience in the field of raising and caring for
chickens. (Amd. Compl. at ¶ 40).
A federal court sitting in diversity applies the law of the state in which it sits. In re Darvocet
Prod. Liab. Lit., 756 F.3d 917, 937 (6th Cir. June 27, 2014).

Under Michigan law, “[a]

communication is defamatory if it tends to lower an individual’s reputation in the community or
deters third persons from associating or dealing with that individual.” Ireland v. Edwards, 230
Mich. App. 607, 614 (1998), citing New Franklin Enterprises v. Sabo, 192 Mich. App. 219, 221
(1991). Not all defamatory statements are actionable, however. Id. Rather, “[i]f a statement cannot
be reasonably interpreted as stating actual facts about the plaintiff, it is protected by the First
Amendment.” Id., citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990).
To establish a claim for defamation, Plaintiff must show: (1) a false and defamatory
statement concerning the plaintiff, (2) an unprivileged communication to a third party, (3) fault
amounting to at least negligence on the part of the publisher, and (4) either actionability of the
statement irrespective of special harm or the existence of special harm caused by publication.
Thomas M. Cooley Law Sch. v. Doe 1, 300 Mich. App. 245, 262 (2013). Plaintiff must plead her

6

defamation claim with specificity by identifying the exact language that she alleges to be
defamatory. Id.
Where, as here, Plaintiff alleges that defamatory statements were made in writing on the
internet, the statements at issue are libelous rather than slanderous. Stablein v. Schuster, 183 Mich.
App. 477, 480, 455 N.W.2d 315, 317 (1990) (“Libel may be defined as a statement of and
concerning the plaintiff which is false in some material respect and is communicated to a third
person by written or printed words and has a tendency to harm the plaintiff's reputation.”). “For a
claim of libel, a plaintiff must plead the very words of the libel . . . .” Thomas M. Cooley, 300 Mich.
App. at 263 (internal citation and quotations omitted) (emphasis in original). “Because a plaintiff
must include the words of the libel in the complaint, several questions of law can be resolved on the
pleadings alone, including: (1) whether a statement is capable of being defamatory, (2) the nature
of the speaker and the level of constitutional protections afforded the statement, and (3) whether
actual malice exists, if the level of fault the plaintiff must show is actual malice.” Id.
Plaintiff argues that Burek’s proclamation that “I have legal action filed against Ms. Steele
and St. Lynns publishing for intellectual property theft” is objectively false because, to date, no
complaint has been filed against Plaintiff. (Pl. Resp. to Def. Burek’s Mo., Doc. #16, at 1; see also
Amd. Compl. ¶ 15). Plaintiff argues that it is materially false because “the difference between a
baseless demand letter and the filing of a lawsuit is obvious, and it is substantial . . . the false
statements by Burek about her supposed lawsuit were a major part of her concerted and consistent
efforts to malign Steele and bring others to her cause.” (Pl. Resp. to Burek’s Mo., Doc. #16, at 2).
For example, Plaintiff alleges that Burek’s false statement about Plaintiff’s “intellectual property
theft” of Burek’s work has induced other individuals to post negative reviews of Plaintiff’s book on

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Amazon.com, and in turn, these negative reviews have had a negative impact on online sales of
Fresh Eggs Daily. (Amd. Compl. ¶ 32).
Defendant Burek replies that, “by sending a cease and desist letter, Burek began the process
of a legal action. Whether she actually filed a complaint is immaterial. The ‘gist’ of her statement
that she filed a legal action was substantially true.” (Def. Burek’s Mo., Doc. #12, at 4).
The Court finds that Defendant Burek’s statement regarding her filing of “legal action”
against Plaintiff for “intellectual property theft” is a statement of fact and it is false. The Seventh
Circuit has considered a similar statement and determined that “the words ‘legal action’ can only
be intended to mean some sort of lawsuit or official proceeding . . . it stretches reason to interpret
‘legal action’ as ‘any activity of a lawyer . . . .” Republic Tobacco Co. v. N. Atl. Trading Co., 381
F.3d 717, 730 (7th Cir. 2004). Thus, Defendant Burek’s argument that “legal action” encompasses
the communication of a demand letter is rejected.
The question then becomes whether Burek’s statement is defamatory, i.e. whether it has the
tendency “to lower an individual’s reputation in the community or deter[] third persons from
associating or dealing with that individual.” Ireland, 230 Mich. App. at 614. The Court must decide
as a matter of law whether a particular statement is defamatory. Nichols v. Moore, 477 F.3d 396,
399 (6th Cir. 2007), citing Fisher v. Detroit Free Press, Inc., 158 Mich. App. 409 (1987).
The Court finds the Seventh Circuit’s analysis in Republic Tobacco persuasive. In Republic
Tobacco, defendant North Atlantic Trading Company believed that plaintiff was violating trademark
and unfair competition laws to defendant’s detriment. Republic Tobacco, 381 F.3d at 722.
Defendant stated in a letter to one of plaintiff’s customers that “[w]e own the patent-trademark
which has been violated . . . Our Attorneys initiated legal action . . . and had to include the Chain

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in the Trademark-Patent violation.” Id. at 723. The Seventh Circuit concluded not only that this
statement was false, but also that it was defamatory, because “even if it were true [that plaintiff had
been sued], the statement was not simply that [plaintiff] had been sued, but it provided factual detail
about [plaintiff’s] alleged inappropriate activity.” Id. at 730.
The Court finds that Defendant Burek’s statement that she “filed legal action” against
Plaintiff for “intellectual property theft” is defamatory. As in Republic Tobacco, Defendant Burek
not only stated that she initiated legal action against Plaintiff, but she also stated that she initiated
legal action because Plaintiff committed intellectual property theft. The Court further finds that
allegations of plagiarism are serious and have the tendency to lower an author’s reputation in his or
her community of fans and colleagues. Therefore, the Court finds that Plaintiff has stated a plausible
cause of action for defamation based on Burek’s “legal action” statement.
Plaintiff also argues that Burek’s and Shelden’s discounting of her experience (i.e. stating
that Plaintiff has four years of experience rather than her actual six “or more” years of experience
in organic chicken farming) is materially false because “it was made specifically by Burek for
purposes of de-valuing Steele’s expertise” and to harm her reputation. (Pl. Resp., Doc. #16, at 4).
Defendant replies that there is no material difference between stating that Plaintiff has four years
of experience rather than six years of experience. (Def. Reply, Doc. #18 at 2).
When viewing the allegations in the light most favorable to Plaintiff, the Court finds that
Defendant’s statement regarding Plaintiff’s level of experience could plausibly be construed as
defamatory. Defendant’s statement is a representation of fact, that we must assume is false as
Plaintiff has alleged, and was likely made with the intent of harming Plaintiff’s reputation in their
shared community.

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Based on the foregoing, the Court shall DENY Defendant Burek’s Motion to Dismiss
Plaintiff’s defamation claims.
B.

Tortious Interference Claim

Plaintiff alleges that Defendants Burek, Shelden and Hoggard have tortiously interfered with
her contracts and prospective business relationships. (Amd. Compl., Doc. #8 at 13). In order to
prevail on a tortious interference claim, Plaintiff must ultimately prove (1) the existence of a valid
business relationship or expectancy; (2) knowledge of the relationship or expectancy on the part of
the interferer; (3) an intentional interference inducing or causing a breach or termination of the
relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy
has been disrupted. WHIC-USA, Inc. v. Carlisle, 2005 WL 1959503 (Mich. Ct. App. Aug. 16,
2005), citing Lakeshore Community Hosp, Inc v. Perry, 212 Mich. App 396, 401 (1995).
Under Michigan law, the third element “requires the plaintiff to demonstrate that the third
party was induced either to breach the contract or to break off the prospective business relationship
by an intentional act that is either (1) wrongful per se; or (2) lawful, but done with malice and
unjustified in law.” Warrior Sports, Inc. v. Nat’l Collegiate Athletic Ass’n, 623 F.3d 281, 287 (6th
Cir. 2010) (applying Michigan law) (citation and quotations omitted).
Defendant Burek argues, quite summarily, that the Court should dismiss this claim because
“there is no allegation of anything unjustified or wrongful” in the Amended Complaint. (Def. Mo.,
Doc. #12, at 5).
Plaintiff responds that she has pleaded all the required elements of tortious interference, and
has done so with sufficient particularity. Specifically, Plaintiff points to a few paragraphs of the
Amended Complaint, where Plaintiff alleges:

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52.

Defendants Burek, Shelden, and Hoggard intentionally, and with the
intention to cause harm to Steele, sought to disrupt and to deprive Steele of
the value of ongoing economic activities and interests embodied in contracts
and/or established business relationships and sales channels with the
following, among others:
a.
b.
c.
d.
e.

St. Lynn’s Press
Amazon.com
Barnes & Noble and its online arm at BN.com
Better Homes and Gardens Magazine
Hobby Farms Magazine

53.

The Defendants achieved their desired interference by a coordinated
combination of false and misleading statements, manufactured and
strategically placed product reviews with online retailers of Steele’s book
Fresh Eggs Daily, and direct communications with representatives of
publications for which Steele was a contributing writer.

54.

These actions and communications have had their desired effect, as the
potential sales of Fresh Eggs Daily, actual orders of Fresh Eggs Daily that
have not been fulfilled, and Steele’s business opportunities and revenue from
Fresh Eggs Daily, St. Lynn’s Press, and other outlets have been limited or
ended.

55.

As a result of the Defendants [sic] actions as described above and in this
Count III, Steele has been damaged, in a precise amount to be proven by the
evidence at trial.

(Amd. Compl. at ¶¶ 52-55). The crux of Plaintiff’s tortious interference claim is that Defendants
essentially “orchestrated a group effort . . . to seed negative reviews and vindictive feedback not
only for Fresh Eggs Daily, but for Steele’s anticipated future works . . ,” (Amd. Compl. at ¶ 22), in
order to “remove a product [Burek] views as competitive from the market while she prepares her
product to compete.”2 (Amd. Compl. at ¶ 30).
Viewing the Complaint in the light most favorable to Plaintiff, the Court finds that Plaintiff

2

According to Plaintiff, Burek is in the process of writing a book on the same topic as
Plaintiff’s book.
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has pleaded a plausible claim for tortious interference. If Plaintiff’s allegations are indeed true, as
this Court is required to assume for purposes of this motion, then it appears clear that Defendants
Burek and Sheldon set out to cause Plaintiff economic harm by initiating a campaign of negative
online reviews of Plaintiff’s book and by notifying several of Plaintiff’s business contacts that Burek
“filed legal action” against Plaintiff for “intellectual property theft” (which is false).
Based on the foregoing, the Court finds that Plaintiff’s allegations support a plausible claim
for tortious interference. Therefore, the Court shall DENY Defendant Burek’s Motion to Dismiss
(Doc. #11) accordingly. Because Defendant Shelden has joined Defendant Burek’s motion (Doc.
#25) without making any additional argument, the Motion to Dismiss shall be denied as to him as
well.
II.

Defendant Hoggard’s Motion to Dismiss for Lack of Personal Jurisdiction
Defendant Nancy Fitzgerald Hoggard moves this Court for dismissal of Plaintiff’s complaint

for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). Plaintiff bears
the burden of establishing that this Court has personal jurisdiction over Defendant Hoggard.
Theunissen, 935 F.2d at 1458.
Defendant Hoggard is a citizen of Nevada. Plaintiff is a citizen of Virginia. Defendants
Shelden and Burek are citizens of Michigan. Plaintiff has brought suit against Defendant Hoggard
for defamation per se and tortious interference with business contracts and expectancies (Amd.
Compl., Doc. #8, at Counts II and III).
Personal jurisdiction over an out-of-state defendant arises from certain minimum contacts
with the forum state such that maintenance of the suit does not offend “traditional notions of fair
play and substantial justice.” Id. (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).

12

“Depending on the type of minimum contacts in a case, personal jurisdiction can either be specific
or general.” Air Products and Controls, Inc., 503 F.3d at 550. General jurisdiction depends on a
showing that the defendant has continuous and systematic contacts with the forum state to justify
the state’s exercise of judicial power with respect to any and all claims the plaintiff may have against
the defendant. Kerry Steel, Inc. v. Paragon Indus., Inc., 106 F.3d 147, 149 (6th Cir. 1997). Specific
or limited personal jurisdiction “exposes the defendant to suit in the forum state only on claims that
‘arise out of or relate to’ a defendant’s contacts with the forum.” Id. Here, the parties appear to
agree that Defendant Hoggard may be subject to specific, but not general, personal jurisdiction in
Michigan.
A district court’s analysis of personal jurisdiction over an out-of-state defendant generally
entails two steps: 1) first, the court must determine whether the forum’s relevant long-arm statute
authorizes the exercise of jurisdiction over defendant; and, if so, 2) the court must determine whether
the exercise of that jurisdiction comports with constitutional due process. Id.
However, “[t]he two inquiries merge where the forum state’s long-arm statute extends, as
does Michigan’s long-arm statute, to the limits permitted under the due process clause.” Children’s
Orchard, Inc., v. Children’s Orchard Store #142, 2010 WL 2232440, at *4 (E.D. Mich. 2010) (citing
Mich. Coal. of Radioactive Material Users, Inc., v. Griepentrog, 954 F.2d 1174, 1176 (6th Cir.
1992)). Therefore, this Court may focus its inquiry on whether the exercise of personal jurisdiction
over Defendant Hoggard would violate the Due Process Clause of the Fourteenth Amendment of
the U.S. Constitution. Id.
The Sixth Circuit has established a three-part test for determining whether the exercise of
jurisdiction comports with due process:

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First, the defendant must purposefully avail himself of the privilege of acting in the
forum state or causing a consequence in the forum state. Second, the cause of action
must arise from the defendant’s activities there. Finally, the acts of the defendant or
consequences caused by defendant must have a substantial enough connection with
the forum state to make the exercise of jurisdiction over the defendant reasonable.
Southern Mach. Co. v. Mohasco Indus., Inc., 401 F.2d 374, 381 (6th Cir. 1968). While these criteria
are helpful, courts are not to “apply them mechanically because the inquiry into whether jurisdiction
exists turns on the facts of the individual case at hand.” Chrysler Corp. v. Uptown MotorcarsHartford, Inc., 173 F.3d 854, 1999 WL 196558 (6th Cir. 1999).
I.

Purposeful Availment

“[T]he question of whether a defendant has purposefully availed itself of the privilege of
doing business in the forum state is ‘the sin qua non for in personam jurisdiction.’” Compuserve,
Inc. v. Patterson, 89 F.3d 1257, 1263 (6th Cir. 1996) (quoting Mohasco Indus., Inc., 401 F.2d at
381-82). The purposeful availment requirement is satisfied when the defendant’s contacts with the
forum state create a substantial connection with the forum state, and when the defendant’s conduct
and connection with the forum are such that he “should reasonably anticipate being haled into court
there.” Compuserve, 89 F.3d at 1263. Purposeful availment is required to ensure that “random,”
“fortuitous,” or “attenuated” contacts do not cause a defendant to be haled into a jurisdiction. Id.
Two distinct tests have evolved in cases dealing with the intersection of personal jurisdiction
and internet activity. Cadle Co. v. Schlichtmann, 123 Fed. App’x 675, 677-79 (6th Cir. 2005)
(noting that, to determine specific personal jurisdiction, Zippo applies when defendant operates a
website and Calder applies when defendant has published or disseminated information); Lifestyle
Lift Holding co., Inc. v. Prendiville, 768 F. Supp. 2d 929, 934-35 (E.D. Mich. March 9, 2011)
(considering Zippo and Calder tests in internet libel case); Farquharson v. Metz, 2013 WL 3968018
14

at *2 (D. Mass. July 30, 2013) (applying Calder effects test to case involving allegedly defamatory
statements posted on Facebook); see also Patrick J. Borchers, Internet Libel: The Consequences of
a Non-Rule Approach to Personal Jurisdiction, 98 NW. U. L. REV. 473 (Winter 2004). The first test,
known as the Zippo test, applies when a defendant operates a website that is “interactive to a degree
that reveals specifically intended interaction with residents of the state.” Neogen Corp. v. Neo Gen
Screening, Inc., 282 F.3d 883, 890 (6th Cir. 2002), citing Zippo Mfg. Co. v. Zippo Dot Com, Inc.,
952 F. Supp. 1119, 1124 (W.D. Pa. 1997). If the interactivity of a defendant’s website meets this
criterion, then the defendant will be found to have purposefully availed itself of the privilege of
acting in a particular state. Id.
The second test is known as the Calder effects test. See Calder v. Jones, 465 U.S. 783
(1984). The Calder effects test focuses on “the effects the conduct at issue had in the forum state.”
Thomas v. Barrett, 2012 WL 2952188 (W.D. Mich. 2012). Under Calder, “personal jurisdiction
exists where an individual purposefully directs activities toward the forum state with the intent to
cause harm there.” Scotts Co. v. Aventis S.A., 145 Fed. App’x 109, 113 (6th Cir. 2005).
The Court finds, and the parties agree, that the Calder effects test rather than the Zippo test
is most appropriate here. The Court shall apply the Calder effects test to the facts of this case
because Plaintiff has not alleged or shown that Defendant Hoggard maintains a website, interactive
or otherwise, such that the Zippo test would be applicable.
Plaintiff argues that Defendant Hoggard has “purposefully availed herself of the privilege
of acting in [Michigan], by participating in, being guided by, and reporting to the Michigan-based
online torts group.” (Pl. Resp., Doc. #15, at 3). At oral argument on this motion, Plaintiff expanded
on this theory, arguing that Defendant Hoggard purposefully availed herself of the privilege of

15

acting in Michigan because she joined a Facebook group that was created and is administered by a
Michigan resident.
Defendant Hoggard maintains that the Calder effects test has not been met because she “did
not expressly aim to disseminate anything into Michigan, nor were the brunt of the effects felt in
Michigan.” (Def. Reply, Doc. #17, at 1).
The Court finds that Plaintiff has failed to show that Defendant Hoggard purposefully availed
herself of the privilege of acting in Michigan under the Calder effects test. The Calder effects test
cannot be met because Plaintiff has not alleged or shown that the effects of Defendant Hoggard’s
actions were felt in Michigan. Indeed, it appears undisputed that the effects of Hoggard’s actions
were felt in Virginia, where Plaintiff resides.
Furthermore, even if the Court were to accept Plaintiff’s argument that Defendant Hoggard
had contact with Michigan by virtue of her participation in a Michigan-based Facebook group,
Plaintiff has failed to show that Defendant Hoggard purposefully directed her activity toward
Michigan. Plaintiff has not shown that Defendant Hoggard knew that Defendants Burek and
Shelden resided in Michigan. Thus, it is far from proven that Defendant Hoggard intended to join
a Michigan-based or Michigan-centric Facebook group.3 As far as the allegations show, Defendant
Hoggard could have thought that she was joining a California-based torts group, or a New Yorkbased torts group. Most importantly, Hoggard’s own activities were directed at Plaintiff, who
resides in Virginia. The Court finds that the purposeful availment prong has not been met.

3

At oral argument on this motion, Plaintiff argued that the Facebook group was “located”
in Michigan because it was created by, and is administered by, Burek, who is a Michigan
resident. For purposes of the Court’s personal jurisdictional analysis, the Court assumes without
deciding that this Plaintiff’s averment is correct in this regard.
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ii.

Arising Out Of Requirement

The second prong of the test requires that the cause of action must arise from Defendant’s
contacts with the forum state. The Sixth Circuit has “articulated the standard for this prong in a
number of different ways, such as whether the causes of action were ‘made possible by’ or ‘lie in
the wake of, the defendant’s contacts, or whether the causes of action are ‘related to’ or ‘connected
with’ the defendant’s contacts with the forum state.” Air Prods. and Controls, 503 F.3d at 553, citing
Youn v. Track, Inc., 324 F.3d 409, 419 (6th Cir. 2003) (internal citations omitted); see also
Compuserve, Inc. v. Patterson, 89 F.3d 1257, 1267 (6th Cir. 1996) (“If a defendant’s contacts with
the forum state are related to the operative facts of the controversy, then an action will be deemed
to have arisen from those contacts.”)
In addition, the Sixth Circuit has “characterized this standard as a ‘lenient standard’ and has
explained that the cause of action need not ‘formally’ arise from defendant’s contacts.” Id. (citing
Bird v. Parsons, 289 F.3d 865, 875 (6th Cir. 2002)).
Plaintiff claims that “the cause of action arises out of Hoggard’s activities in the forum state,
which activities were Hoggard’s group-directed torts, coordinated as part of her participation in the
Michigan-based group.” (Pl. Resp., Doc. #15, at 3).
The Court finds that the “arising out of” requirement has not been met because Defendant
Hoggard’s alleged wrongdoing in this case did not arise out of her contacts with Michigan residents.
Rather, Plaintiff’s causes of action against Defendant Hoggard arise out of her various postings on
the internet that she made from behind her computer screen in Nevada. (Amd. Compl. at ¶¶ 23-24)
(“Defendant Hoggard took this online review strategy to a harmful extreme . . . . Hoggard posted,
‘I am going to email the mags a [sic] listed a few minutes ago either today or tomorrow . . .’ In a

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separate post, Hoggard stated, ‘I’m going to contact Better Homes & Gardens . . . .’”).
In short, Plaintiff’s alleged injuries did not arise from the fact that Burek, Shelden, and
Hoggard were all members of a Facebook group that was created and administrated by a Michigan
resident. Therefore, the Court finds that Plaintiff has not carried her burden of showing that the
“arising out of” requirement of the due process analysis has been met.
iii.

The Reasonableness Requirement

In determining whether the exercise of jurisdiction is reasonable, the Court should consider
the following factors: 1) the burden on the defendant; 2) the interest of the forum state; 3) the
plaintiff’s interest in obtaining relief; and 4) other states’ interests in securing the most efficient
resolution of the controversy. Air Prods. and Controls, Inc., 503 F.3d at 554.
Where the first two prongs are met, “an inference of reasonableness arises” and “only the
unusual case will not meet this third criteria.” Id. As discussed above, that is not the case here.
Plaintiff argues that “the exercise of personal jurisdiction over Hoggard is reasonable based
on the [sic] her contacts with the forum specific to these claims, as her actions were directed to the
Michigan group and guided by the Michigan group.” (Pl. Resp., Doc. #15, at 3).
The Court finds that Plaintiff’s argument is without merit. The Court concludes that it would
be patently unreasonable to subject a defendant to personal jurisdiction in a state solely because he
or she joined a Facebook group that happened to be created by a citizen of that state. A finding that
Michigan courts have personal jurisdiction over Defendant Hoggard in this situation would be the
type of “random” assertion of in personam jurisdiction that offends due process.
The Court finds that it would violate Defendant Hoggard’s due process rights for a Michigan
court to exercise specific personal jurisdiction over her under the facts of this case. Therefore, the

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Court shall GRANT Defendant Hoggard’s Motion to Dismiss Pursuant to Federal Rule of Civil
Procedure 12(b)(2). The Court shall DENY Plaintiff’s request to transfer the case to the Eastern
District of Virginia.
CONCLUSION
For the foregoing reasons, the Court shall DENY Defendant Burek’s Motion to Dismiss
Pursuant to Fed. R. Civ. P. 12(b)(6) (Doc. #12) and GRANT Defendant Hoggard’s Motion to
Dismiss Pursuant to Fed. R. Civ. P. 12(b)(2) (Doc. #11).
IT IS SO ORDERED.

S/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: November 20, 2014
I hereby certify that a copy of the foregoing document was served upon counsel of record on
November 20, 2014, by electronic and/or ordinary mail.
S/Jennifer McCoy
Case Manager

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