Sanders v. Sennholz et al
ORDER GRANTING 13 Defendant's MOTION to Dismiss, DENYING AS MOOT 14 Plaintiff's MOTION for Emergency Injunctive Relief, and VACATING 15 Order to Show Cause. Signed by District Judge Arthur J. Tarnow. (AChu)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 17-10578
SENIOR UNITED STATES DISTRICT
JUDGE ARTHUR J. TARNOW
KELLY SENNHOLZ, ET. AL.,
MAGISTRATE JUDGE ELIZABETH A.
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS ; DENYING AS MOOT
PLAINTIFF’S MOTION FOR EMERGENCY INJUNCTIVE RELIEF ; VACATING
ORDER TO SHOW CAUSE 
On February 17, 2017, Plaintiff filed a pro se complaint against Defendants
alleging conspiracy to commit theft through conversion, conspiracy to infringe
upon copyright, conspiracy to defame, defamation by implication, and association,
and breach of contract. Plaintiff is seeking damages for theft of intellectual
property in the amount of $5,000,000. Defendants filed a Motion to Dismiss on
April 17, 2017 , arguing that Plaintiff had failed to state a claim and that the
Court had no personal jurisdiction over any of the Defendants. Plaintiff filed a
Motion for Emergency Injunctive Relief on April 21, 2017 . The Court ordered
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Plaintiff to show cause why the case should not be dismissed for lack of personal
jurisdiction on April 28, 2017. . Plaintiff responded  on May 11, 2017.
Defendants responded  to Plaintiff’s Motion for Emergency Injunctive Relief
on May 15, 2017.
For the reasons stated below, Defendant’s Motion to Dismiss  is
GRANTED and Plaintiff’s claims are dismissed without prejudice. Plaintiff’s
Motion for Emergency Injunctive Relief  is DENIED as moot and the Order
to Show Cause  is VACATED.
On November 13, 2016, Plaintiff launched a citizen initiative that sought to
secure a revote of the 2016 elections. Plaintiff served as the group’s leader and
legal strategist. Defendants Martin and Seenholz both joined Plaintiff’s initiative
in 2016. Defendant Martin performed marketing and outreach functions while
Defendant Sennholz was responsible for fundraising through the group’s
GoFundMe account. Plaintiff created a legal strategy for the revote, and the group
began to find an attorney to help them act on Plaintiff’s theory or craft a new one
better suited to achieving the revote. After not identifying an attorney for their
group, Plaintiff began drafting a writ of mandamus based on the Guarantee
Clause, seeking to permanently enjoin the swearing-in of newly elected
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congressional members, ratification of electoral votes, and the swearing in of the
President-elect and Vice President-elect on January 20, 2017.
Plaintiff’s strategy for this writ envisioned that sets of citizens all over the
country should file these writs of mandamus in different federal court venues.
Plaintiff and Defendant Sennholz filed a writ in the District of Colorado,
Defendant Martin enlisted people to file in Massachusetts Federal District Court,
and one was filed in the Northern District of California. The requests were
dismissed by all three courts. Following the dismissal, Plaintiff drafted a U.S.
Supreme Court writ of mandamus to appeal the lower court decisions.
Plaintiff’s legal strategy received praise from public figures and news
stations. Following this reception to the legal strategy, Defendants Martin and
Sennholz began discussions with Sanders about possible book deals and speaking
tours. While this was happening, Plaintiff claims that Defendants Sennholz,
Martin, Blumstein, Soodalter-Toman and Goodman attempted to seize ownership
of the writ by: ending all communications with Sanders; establishing their own
separate website and social media accounts; telling the group that they should
refrain from any communication with Sanders,; and falsely claiming that Sennholz
and Martin assisted in drafting the writs while continuing to use Plaintiff’s work as
a basis for fundraising and self-promotion. Plaintiff also claims that Defendants
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published on their Revote17 website, twitter, Facebook pages and in other print
and electronic venues, statements that falsely claimed that Plaintiff was not the sole
creator of the writs used in litigation across the country.
STANDARD OF REVIEW
Defendants move to dismiss Plaintiff’s complaint pursuant to Federal Rule
of Civil Procedure 12(b)(6) and 12(b)(2).1 Plaintiff bears the burden of proving that
jurisdiction is proper. Serras v. First Tenn. Bank Nat’l Ass’n, 875 F.2d 1212, 1214
(6th Cir. 1989); see also Air Prods. & Controls, Inc. v. Safetech Int’l, Inc., 503
F.3d 544 (6th Cir. 2007). To survive a Rule 12(b)(2) motion to dismiss for lack of
personal jurisdiction, a plaintiff must make a “prima facie showing that personal
jurisdiction exists.” Air Prods., 503 F.3d at 549 (citing Theunissen v. Matthews,
935 F.2d 1454, 1458 (6th Cir. 1991)). “When, as here, a district court rules on a
jurisdictional motion to dismiss made pursuant to Rule 12(b)(2) without
conducting an evidentiary hearing, the court must consider the pleadings and
affidavits in a light most favorable to the nonmoving party.” Beydoun v. Wataniya
Restaurants Holding, Q.S.C., 768 F.3d 499, 504 (6th Cir. 2014) (quoting
CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th Cir. 1996)) (internal
While Defendants move on both grounds, this Order only addresses the personal
jurisdiction issue. Since the Court finds that Plaintiff cannot show that the Court
has personal jurisdiction over the Defendants, there is no need to address the merits
of the 12(b)(6) arguments.
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quotation marks and brackets omitted). The nonmoving party nevertheless bears
the burden of establishing jurisdiction. Id. (citing CompuServe, 89 F.3d at 1261–
If a federal court is sitting in diversity, it is constrained in its exercise of
personal jurisdiction by both the long-arm statute of the state where it sits and the
Due Process clause of the Fourteenth Amendment. Neogen Corp. v. Neo Gen
Screening, Inc., 282 F.3d 883, 888 (6th Cir. 2002). Since the federal law at issue, a
claim under the Copyright Act of 1976, does not contain a nationwide service of
process provision, the Court must follow the same two-step process as a Court
sitting in diversity. See Med. Mut. of Ohio v. deSoto, 245 F.3d 561, 567 (6th
Cir.2001) (quoting United Liberty Lobby Life Ins. Co. v. Ryan, 985 F.2d 1320,
1330 (6th Cir.1993).
Defendants argue that the Michigan long-arm statute, MCL §600.705, has
been interpreted as granting to Michigan courts the broadest possible scope of
personal jurisdiction permitted by the Due Process Clause of the Fourteenth
Amendment, and thus the Court need only analyze personal jurisdiction under the
For the purposes of the personal jurisdiction analysis below, the Court relies on
the complaint’s listing of Defendant’s places of residence, placing Defendant
Sennholz in Colorado, and Defendants Martin, Blumstein, Soodalter-Toman and
Goodman in Massachusetts.
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Due Process clause. However, this assertion is incorrect. The Michigan Supreme
Court has held that the long-arm statute and Due Process analysis are not
equivalent, and that a two-step analysis is required. Green v. Wilson, 455 Mich.
342, 351, 565 N.W.2d 813, 817 (1997). In fact, recent Sixth Circuit cases have
applied a two-step analysis without reference to a merger of the two steps. See e.g.
Beydoun v. Wataniya Restaurants Holding, Q.S.C., 768 F.3d 499, 504 (6th
Cir.2014); Miller v. AXA Winterthur Ins. Co., 694 F.3d 675, 679 (6th Cir.2012).
Therefore, the Court will address both issues.
1. JURISDICTION UNDER THE LONG ARM STATUTE
Plaintiff seeks to establish only limited jurisdiction, therefore MCL
§600.705 applies. That statute provides that:
The existence of any of the following relationships between an
individual or his agent and the state shall constitute a sufficient basis
of jurisdiction to enable a court of record of this state to exercise
limited personal jurisdiction over the individual and to enable the
court to render personal judgments against the individual or his
representative arising out of an act which creates any of the following
(1) The transaction of any business within the state.
(2) The doing or causing an act to be done, or consequences to occur,
in the state resulting in an action for tort.
(3) The ownership, use, or possession of real or tangible personal
property situated within the state.
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(4) Contracting to insure a person, property, or risk located within this
state at the time of contracting.
(5) Entering into a contract for services to be rendered or for materials
to be furnished in the state by the defendant.
(6) Acting as a director, manager, trustee, or other officer of a
corporation incorporated under the laws of, or having its principal
place of business within this state.
(7) Maintaining a domicile in this state while subject to a marital or
family relationship which is the basis of the claim for divorce,
alimony, separate maintenance, property settlement, child support, or
MCL. § 600.705.
Defendants’ alleged conduct clearly falls under subsection (2) of the long-arm
statute, since they are alleged to have committed several torts that damaged
Plaintiff in Michigan. Therefore, there is limited jurisdiction over Defendants
under Michigan’s long-arm statute.
2. JURISDICTION UNDER THE DUE PROCESS CLAUSE
Specific jurisdiction “allows a Plaintiff to sue a Defendant only on claims
that arise out of the defendant's activities in the forum state.” Maxitrate Tratamento
Termico E Controles v. Super Sys., Inc., 617 F. App'x 406, 408 (6th Cir.), cert.
denied sub nom. Maxitrate Tratamento Termico E Controles v. Allianz Seguros
S.A., 136 S. Ct. 336, 193 L. Ed. 2d 231 (2015), citing Daimler AG v. Bauman, –––
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U.S. ––––, 134 S.Ct. 746, 754, 187 L.Ed.2d 624 (2014). A Defendant must have
“minimum contacts” with the state in order to be subject to specific jurisdiction in
a certain state. Id, citing Walden v. Fiore, ––– U.S. ––––, 134 S.Ct. 1115, 1121–22,
188 L.Ed.2d 12 (2014). The Sixth Circuit has defined the minimum contacts
analysis in a three step process:
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 the
defendant must have a substantial enough connection with the forum
state to make the exercise of jurisdiction over the defendant
Humantech, Inc. v. Ergonomics Pluc, Inc., No. 14-CV-12141, 2015 WL 1492224,
at *6 (E.D. Mich. Mar. 31, 2015), citing S. Mach. Co. v. Mohasco Indus., Inc., 401
F.2d 374, 381 (6th Cir.1968).
Plaintiff asserts that the Court has specific personal jurisdiction under the
Due Process Clause for three reasons: (1) copyright infringement confers specific
jurisdiction, citing Washington Shoe Co. v. A-Z Sporting Goods Inc., 704 F.3d 668
(9th Cir. 2012) and Penguin Grp. (USA) Inc. v. Am. Buddha, 16 N.Y.3d 295, 946
N.E.2d 159 (2011); (2) the internet contact confers specific jurisdiction under the
sliding scale analysis enunciated in Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952
F.Supp. 1119, 1124 (W.D.Pa.1997); and (3) Defendants targeted Plaintiff in
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Michigan, and therefore the Court has personal jurisdiction under the effects test
for intentional acts set forth in Calder v. Jones, 465 U.S. 783, 104 S. Ct. 1482, 79
L. Ed. 2d 804 (1984).
Defendants reply the Court lacks personal jurisdiction in this case because
Defendants have not purposefully availed themselves of the privilege of acting in
the forum state, and have not caused a consequence in the forum state. Because
they are not from Michigan, are not residents of Michigan, have not transacted
business in Michigan, and none of the events complained of by Plaintiff took place
in Michigan, the Court lacks personal jurisdiction over Defendants in this action.
a. COPYRIGHT INFRINGEMENT YIELDS SPECIFIC JURISDICTION
Plaintiff cites Washington Shoe Co. v. A-Z Sporting Goods Inc., 704 F.3d
668 (9th Cir. 2012) and Penguin Grp. (USA) Inc. v. Am. Buddha, 16 N.Y.3d 295,
946 N.E.2d 159 (2011) in support of her contention that copyright infringement
automatically confers specific jurisdiction over Defendants. First, the Penguin
Group case is not persuasive here because it is a New York Court of Appeals case
that discusses this issue under New York State’s long arm jurisdiction statute,
which differs materially from the Michigan statute. Second, the Washington Shoe
Co. case from the 9th Circuit is also not persuasive. This case actually applies the
Calder analysis, and importantly, this case was decided before the Supreme Court
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clarified the Calder effects test in Walden v. Fiore, 134 S. Ct. 1115, 1123, 188 L.
Ed. 2d 12 (2014). Therefore, Plaintiff’s argument that copyright confers specific
jurisdiction is not persuasive and the Court will consider the Calder analysis for
the copyright claim below.
b. ZIPPO SLIDING SCALE ANALYSIS
Plaintiff argues that the Zippo sliding scale analysis applies, and that the
highly interactive internet contact that Defendants had justify the Court exerting
specific jurisdiction in this case. This argument is not persuasive.
In cases discussing the issue of personal jurisdiction in relation to internet
activity, the Sixth Circuit has developed two distinct tests. The Zippo sliding scale
analysis applies when a Defendant operates a website, while Calder applies when a
Defendant has only published or disseminated information. Cadle Co. v.
Schlichtmann, 123 Fed. App'x 675, 677–79 (6th Cir.2005). In this case, Plaintiff
relies upon Defendants’ online activity, which includes fundraising by inviting
donations via GoFundMe, their social media posts and their website. The only
website that Defendants are alleged to operate is Revote2017, and therefore this is
the only website that will be analyzed under the Zippo analysis, and the activity on
social media networks and GoFundMe, which must be analyzed under the Calder
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“The ‘operation of an Internet website can constitute the purposeful
availment of the privilege of acting in a forum state ... if the website is interactive
to a degree that reveals specifically intended interaction with residents of the
state’” Cadle Co. v. Schlichtmann, 123 F. App'x 675, 678 (6th Cir. 2005), citing
Bird v. Parsons, 289 F.3d 865, 873 (6th Cir.2002) (internal quotations omitted).
When addressing the Defendants’ contact with the forum state, the Sixth Circuit
has adopted the Zippo sliding scale approach, which distinguishes between
websites that are interactive, illustrated by Defendant establishing “repeated online
contacts with residents of the forum state,” and passive websites, where the
“defendant merely posts information on the site.” Id (internal citations omitted).
Plaintiff alleges that Defendants used the Revote2017 website to “tout[ed]
their individual credentials and personal accomplishment and…secure media
interviews.” [14 at 15]. The website also detailed the legal strategy and had contact
information provided for which people on the website could submit questions and
receive answers through email. Taking the evidence presented in the light most
favorable to Plaintiff, the website in question appears to be “semi-interactive,”
since it appears to provide contact information and has been used to solicit support
for Defendants’ revote initiative. See Cadle Co. v. Schlichtmann, 123 F. App'x 675,
678 (6th Cir. 2005).
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If a website is considered “semi-interactive,” “the exercise of jurisdiction is
determined by examining the level of interactivity and commercial nature of the
exchange of information that occurs.” Id, quoting Zippo, 952 F. Supp. At 1124.
Plaintiff has not alleged that there was any exchange of information or interaction
between Defendants and Michigan residents via the website. Further, there is no
evidence that the website specifically targeted Michigan residents in any way. The
only connection to Michigan at all is that Plaintiff is identified on the website,
Jerroll Sanders is not affiliated with Revote 2017. Ms. Sanders had
previously volunteered to help support the Plaintiffs’ efforts and, early
on, she appeared to offer considerable expertise, including drafting a
version of a Writ of Mandamus to be submitted to the Supreme Court.
But, she subsequently refused to collaborate or allow the team to use
her version of a writ. Dr. Sennholz, Ms. Martin and the Plaintiffs all
severed ties with Ms. Sanders and “re-branded” their effort under the
name Revote 2017, which is the official group name now.
Nevertheless, Ms. Sanders continues to separately maintain the
[14 at Ex. 14]. This fails to establish specific personal jurisdiction, because it
merely focuses on the Plaintiff’s connections to the forum while not demonstrating
that the forum was targeted at all by Defendants. Therefore, this is not a basis for
c. CALDER V. JONES EFFECT TEST
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Under the effects test, Plaintiff must prove: (1) Defendant acted intentionally;
(2) Defendant's acts were expressly aimed at the State of Michigan; and (3) the
brunt of Plaintiff's injuries were felt in Michigan. Am. Pie Pizz, Inc. v. Holton
Holdings, Inc., No. 2:10-CV-13106, 2011 WL 334272, at *5 (E.D. Mich. Jan. 31,
2011). Based upn the facts contained in the complaint, the Court accepts that prong
one has been satisfied, as well as prong three, because Plaintiff resides in
Michigan. Therefore, the analysis below will focus on the second prong of the
In Walden, the Supreme Court relied upon its previous decision in Calder v.
Jones, 465 U.S. 783 (1984), to illustrate personal jurisdiction principles’
application to intentional torts. Walden v. Fiore, 134 S. Ct. 1115, 1123 (2014).
The Court summarized its holding in Calder as follows:
[A] California actress brought a libel suit in California state
court against a reporter and an editor, both of whom worked for
the National Enquirer at its headquarters in Florida. The
plaintiff’s libel claims were based on an article written and
edited by the defendants in Florida for publication in the
National Enquirer, a national weekly newspaper with a
California circulation of roughly 600,000.
We held that California’s assertion of jurisdiction over the
defendants was consistent with due process. Although we
recognized that the defendants’ activities focused on the
plaintiff, our jurisdictional inquiry focused on the relationship
among the defendant, the forum, and the litigation. Specifically,
we examined the various contacts the defendants had created
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with California (and not just with the plaintiff) by writing the
allegedly libelous story.
We found those forum contacts to be ample: The defendants
relied on phone calls to California sources for the information
in their article; they wrote the story about the plaintiff’s
activities in California; they caused reputational injury in
California by writing an allegedly libelous article that was
widely circulated in the State; and the brunt of that injury was
suffered by the plaintiff in that State. In sum, California was the
focal point both of the story and of the harm suffered.
Jurisdiction over the defendants was therefore proper in
California based on the effects of their Florida conduct in
Id. (emphasis added) (internal citations, quotation marks, and brackets omitted). In
Walden, the Court clarified that “where the plaintiff experienced a particular injury
or effect” is not the proper question, since “[r]egardless of where a plaintiff lives or
works, an injury is jurisdictionally relevant only insofar as it shows that the
defendant has formed a contact with the forum State.” Id. at 1125. Thus, what
mattered in Calder was that the article’s injury to “the plaintiff’s reputation in the
estimation of the California public,” combined with “various facts that gave the
article a California focus,” sufficiently connected the defendants’ conduct to
California, rather than just to the Plaintiff, to support personal jurisdiction there.
Id. at 1124.
The Sixth Circuit has further clarified the Calder effects test, stating that, in
the Sixth Circuit, the Court has “applied Calder narrowly by evaluating whether a
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defendant's contacts with the forum may be enhanced if the defendant expressly
aimed its tortious conduct at the forum and plaintiff's forum state was the focus of
the activities of the defendant out of which the suit arises.” Air Prod. & Controls,
Inc. v. Safetech Int'l, Inc., 503 F.3d 544, 552 (6th Cir. 2007), citing Scotts Co. v.
Aventis S.A., 145 Fed.Appx. 109, 113 n. 1 (6th Cir.2005).
Plaintiff relies on the Calder v. Jones effect test to argue that Defendants’
actions at issue concern the revote project, and documents developed for the revote
project which were created by Plaintiff in Michigan. Therefore, Plaintiff reasons,
Defendants’ acts were expressly aimed at Michigan. However, this misapplies the
Calder effects test as it is currently applied in the Sixth Circuit. As stated above,
Calder was clarified by the Supreme Court in Walden.
First, the Court does not have specific jurisdiction over Plaintiff’s
conversion and copyright claims. Plaintiff’s allegations state that Defendants
violated her copyright by using her writ and other various legal briefs for which
copyright is pending, in various legal proceedings across the country as well as
using it for fundraising and self-promotion. However, there is no evidence
presented whatsoever that any of these acts were expressly aimed at Michigan or
Michigan citizens. Plaintiff is in effect attempting to create personal jurisdiction
based solely upon the fact that she, the Plaintiff was injured in the forum where she
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resides. This is exactly what the Supreme Court has rejected, and Plaintiff must
show more than this to establish the existence of personal jurisdiction. In fact, there
is no evidence presented whatsoever that Michigan was targeted. As explained
above, Defendants’ website did not target Michigan in any way, none of the media
solicited by Defendants concerning the writs and legal documents at issue were
based in Michigan, and none of the various lawsuits were filed in Michigan.
Therefore, there is no personal jurisdiction over Plaintiff’s copyright and
As for Plaintiff’s defamation claims, these claims stem from the statements
made by Defendants in various emails, their Revote2017 website, and on social
media sites, as well their GoFundMe and press releases. Plaintiff’s defamation
claims are based upon allegations that she did not write the writ on her own. These
allegations do not target Plaintiff’s reputation in Michigan, and the claimed
reputational injury would have occurred regardless of whether the publication did
reach Michigan and was read by a large number of Michigan residents. This makes
Plaintiff’s defamation claims materially different from the situation in Calder and
therefore, there is no personal jurisdiction on these claims. See Walden, 134 S. Ct.
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Finally, Plaintiff brings a claim for breach of contract. While there is no
evidence of any express contract, Plaintiff states that there was an implied
agreement between herself and Defendants that was breached. Even assuming that
there was an implied contract that would create personal jurisdiction, the Court is
unclear as to what the content of that actually agreement was. Moreover, it is clear
that this asserted implied contract was, by its nature, short term and only between
Plaintiff and Defendants. “[M]erely entering into a contract [with
Plaintiff]…would not, without more, establish…[the Defendants had] minimum
contacts with [Michigan].” CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1265 (6th
Cir. 1996), citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478 (1985).
Therefore, there is no personal jurisdiction over Plaintiff’s contract claim.
The Court does not have personal jurisdiction over Defendants in this action.
Therefore Defendant’s Motion to Dismiss  is granted and Plaintiff’s claims are
dismissed without prejudice. Accordingly, Plaintiff’s Motion for Emergency
Injunctive Relief  is denied as moot.
IT IS ORDERED that Defendant’s Motion to Dismiss  is GRANTED
and Plaintiff’s claims are dismissed without prejudice.
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IT IS FURTHER ORDERED that Plaintiff’s Motion for Emergency
Injunctive Relief  is DENIED as moot and the Order to Show Cause  is
Dated: July 28, 2017
/s/Arthur J. Tarnow_________________
Arthur J. Tarnow
Senior United States District Judge
Certificate of Service
I hereby certify that this Order was electronically submitted on July 28,
2017, using the CM/ECF system, which will send notification to each party.
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