Higgins v. Save Our Heroes
Filing
24
ORDER granting 8 Motion to Dismiss (Written Opinion) Signed by Senior Judge David S. Doty on 5/14/2018. (DLO)
United States District Court
District of Minnesota
Civil No. 18-42(DSD/BRT)
Lieutenant Colonel Chantell M. Higgins,
Plaintiff,
v.
Save Our Heroes,
Defendant.
Adine S. Momoh, Esq. and Stinson Leonard Street LLP, 150 South
Fifth Street, Suite 2300, Minneapolis, MN, counsel for
plaintiff.
Zorislav R. Leyderman, Esq. and The Law Office of Zorislav R.
Leyderman, 222 South 9th Street, Suite 1600, Minneapolis, MN,
counsel for defendant.
This matter is before the court upon the motion to dismiss by
defendant Save Our Heroes.
Based on a review of the file, record,
and proceedings herein, and for the following reasons, the motion
is granted.
BACKGROUND
This defamation suit arises out of defendant Save Our Heroes’s
(SOH)
blog
post
concerning
the
Naval
Criminal
Investigative
Service’s (NCIS) investigation of plaintiff Lieutenant Colonel
Chantell
Higgins.
In
March
2015,
NCIS
accused
Higgins
of
“destroying, falsifying and tampering with evidence and obstructing
justice” in connection with her previous representation of a
military minor dependent.
Compl. ¶¶ 15-18.
On March 24, 2015, the Marine Times published an article about
the NCIS investigation, which Higgins claims became the source of
later allegedly defamatory articles about her.
Id. ¶ 24.
One day
later, Joseph Jordan, a criminal defense attorney, also posted an
article on the NCIS investigation, which contained factual errors.1
Id. ¶¶ 25-26.
In early April 2015, NCIS closed its investigation of Higgins,
and on April 30, 2015, the Commander of Marine Corp Installations
Command
determined
that
the
allegations
unsubstantiated and closed the case.
against
Id. ¶¶ 20-21.
Higgins
were
Additionally,
the Officer in Charge of the Marine Corps Victims Legal Counsel
Organization declined to pursue any professional responsibility
action against Higgins.
Id. ¶ 22.
Nearly two years after the end of the investigation, in March
2017, SOH republished Jordan’s 2015 article with the addition of
its own commentary.
Id. ¶¶ 29, 34.
SOH did not disclose that the
NCIS investigation was closed and that no charges had been filed
against Higgins.
SOH
was
Id. ¶¶ 32, 35.
allegedly
incorrect.
aware
Id. ¶ 31.
that
Before publishing the article,
Jordan’s
In December 2017,
article
was
factually
after receiving a cease
and desist letter from Higgins’s counsel, SOH removed the March
2017 article from its website.
1
Id. ¶ 36.
Higgins alleges,
Both the Marine Times article and the Jordan article were
later removed and are not the subject of this suit. See id.
¶¶ 24, 28.
2
however, that parts of the article still exist online.
see id. Ex. A.
Id. ¶ 37;
She also alleges that SOH has republished the
article by coordinating with third parties.
Id. ¶ 37.
On January 1, 2018, Higgins filed suit against SOH alleging
claims of (1) defamation and libel, (2) intentional inflection of
emotional distress, and (3) negligent infliction of emotional
distress.
SOH now moves to dismiss arguing that (1) the court
lacks personal jurisdiction, and (2) the complaint fails to state
upon which relief can be granted.
DISCUSSION
I.
Personal Jurisdiction
A.
To
Standard
survive
a
motion
to
dismiss
for
lack
of
personal
jurisdiction, a plaintiff must establish a prima facie case that
the forum state has personal jurisdiction over the defendant.
Stevens v. Redwing, 146 F.3d 538, 543 (8th Cir. 1998). In the
absence of an evidentiary hearing, a court “must look at the facts
in the light most favorable to the nonmoving party and resolve all
factual conflicts in favor of that party.”
Dakota Indus., Inc. v.
Dakota Sportswear, Inc., 946 F.2d 1384, 1387 (8th Cir. 1991).
A
federal court may assume jurisdiction over a nonresident defendant
“only to the extent permitted by the long-arm statute of the forum
state and by the Due Process Clause.”
3
Romak USA, Inc. v. Rich, 384
F.3d 979, 984 (8th Cir. 2004) (citation and internal quotation
marks omitted).
Because the Minnesota long-arm statute “confers
jurisdiction to the fullest extent permitted by the Due Process
Clause,” the court need only consider due process requirements.
Coen v. Coen, 509 F.3d 900, 905 (8th Cir. 2007).
To satisfy due process, a defendant must have “sufficient
minimum contacts” with the forum state such that maintaining the
suit
“does
not
offend
substantial justice.”
traditional
notions
of
fair
Romak, 384 F.3d at 984.
play
and
“Sufficient
contacts exist when [a] defendant’s conduct and connection with the
forum state are such that [it] should reasonably anticipate being
haled into court” here.
Coen, 509 F.3d at 905 (citation and
internal quotation marks omitted).
A defendant’s contacts with the forum state can establish
personal
jurisdiction
jurisdiction.
under
either
general
or
specific
General jurisdiction is present when, regardless of
the cause of action, a defendant’s “affiliations with the [forum]
State
are
so
continuous
and
systematic
as
to
render
[it]
essentially at home in the forum State.” Daimler AG v. Bauman, 134
S. Ct. 746, 754 (2014) (internal quotation marks omitted)(quoting
Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919
(2011)).
A court has specific jurisdiction when the cause of
action “arise[s] out of” or “relate[s] to” a defendant’s activities
within that state and when a defendant “purposefully avails itself
4
of the privilege of conducting activities within the forum State.”
Burger
King
Corp.
v.
Rudzewicz,
471
U.S.
462,
472,
474-75
(1985)(citation and internal quotation marks omitted).
Under either analysis, the Eighth Circuit considers five
factors in determining whether personal jurisdiction exists:
“(1)
the nature and quality of defendant’s contacts with the forum
state; (2) quantity of contacts; (3) source and connection of the
cause of action with those contacts; and to a lesser degree, (4)
the interest of the forum state; and (5) the convenience of the
parties.”
Wessels, Arnold & Henderson v. Nat’l Med. Waste, Inc.,
65 F.3d 1427, 1432 (8th Cir. 1995).
B.
Sufficiency of Contacts
1.
Higgins
Website
first
argues
that
SOH’s
internet
contacts
with
Minnesota via its website are sufficient to subject it to the
court’s personal jurisdiction.
The Eighth Circuit has adopted the
Zippo
the
test
when
considering
quality
and
quantity
defendant’s internet contacts with the forum state.2
Arden, 614 F.3d 785, 796 (8th Cir. 2010).
of
a
Johnson v.
The Zippo test applies
a sliding scale to measure the likelihood of personal jurisdiction.
Id.
When a “defendant enters into contracts with residents of a
2
The Eighth Circuit has noted that the Zippo test is more
applicable to a specific personal jurisdiction analysis, but has
also applied it to determine whether general jurisdiction exists.
See Lakin v. Prudential Sec., Inc., 348 F.3d 704, 712 (8th Cir.
2003).
5
foreign
jurisdiction
transmission
of
that
computer
jurisdiction is proper.”
involve
files
the
over
knowing
the
repeated
Internet,
personal
Zippo Mfg. Co. v. Zippo Dot Com, Inc.,
952 F. Supp. 1119, 1224 (W.D. Pa. 1997).
proper, however,
and
Jurisdiction is not
when a website “do[es] little more than make
information available to those who are interested.”
Id.
In cases
where
can
exchange
the
website
is
interactive
and
“a
user
information with the host computer,” the court must examine the
level of interactivity and commercial nature of the exchange of the
information.
Id.
Here, SOH’s website, http://saveourheroesproject.org, only
presents information and opinions to users, it does not sell
products to, or target customers from, Minnesota, and it does not
allow readers to post comments or other information.
I ¶¶ 10-14.
James Decl.
This type of passive website is not sufficient to
confer personal jurisdiction.
Higgins argues, however, that the court should consider SOH’s
Facebook account, where SOH posted an excerpt of the purportedly
defamatory article and a link to the full article.
Decl. ¶ 12; id. Ex. A.
See Higgins
SOH’s website also contains links to
Twitter and Facebook where users can comment on articles that were
posted on the website.
In addition, Higgins points to SOH’s
main
website, www.saveourheroesproject.com, where SOH seeks donations
and volunteers.
6
These types of activities, however, are insufficient for
personal jurisdiction.
First, general jurisdiction does not exist
because these activities are neither continuous nor systematic such
that SOH could be considered at home in Minnesota.
Indeed, the
current record shows that SOH has not received a single donation
from Minnesota.
SOH
seeks
See James Decl. II, Ex. B.
donations
and
volunteers
Second, the fact that
through
its
website
is
insufficient for specific personal jurisdiction because Higgins’s
claims do not arise from these activities. Finally, the ability of
users to comment on SOH’s posts via Facebook or Twitter cannot
subject SOH to specific personal jurisdiction because there is no
evidence
that
these
activities
are
particularly
connected
to
Minnesota. Indeed, if the use of a Facebook page or Twitter handle
was sufficient to confer personal jurisdiction, a defendant could
be haled into court in any state.
2.
Calder Effects Test
Higgins next argues that personal jurisdiction exists because
SOH’s actions were directed at Minnesota. Under the Calder effects
test
a defendant’s tortious acts can serve as a
source of personal jurisdiction only where the
plaintiff makes a prima facie showing that the
defendant’s acts (1) were intentional, (2)
were uniquely or expressly aimed at the forum
state, and (3) caused harm, the brunt of which
was suffered - and which the defendant knew
was likely to be suffered - [in the forum
state].
7
Johnson, 614 F.3d at 796 (internal quotation marks and citation
omitted)(alteration in original).
Even where the effects of a
defendant’s actions are felt in the forum state, this test is
“merely
an
additional
factor
to
defendant’s relevant contacts.”
Higgins
argues
that
consider
when
evaluating
a
Id. at 796-97.
SOH’s
blog
post
creates
sufficient
contacts with Minnesota because she is a Minnesota citizen and
suffered emotional distress and embarrassment in front of family,
who also live in Minnesota.3
But this does not show that SOH’s
acts “were uniquely or expressly aimed at” Minnesota.
Id. at 796.
SOH may have directed its actions at Higgins, but Calder requires
that SOH’s actions be directed at Minnesota.
statements were aimed at the [plaintiffs] ....
See id. (“The
There is no
evidence that the ... website specifically targets Missouri, or
that the content of [defendant’s] alleged postings specifically
targeted Missouri.”).
Further, the fact that SOH may have known
that Higgins is a Minnesota citizen does not change the analysis.
See
Wood
v.
Kapustin,
992
F.
Supp.
2d
942,
946
(D.
Minn.
2014)(holding that the court did not have personal jurisdiction
under Calder where plaintiff alleged that defendants knew she
practiced law in Minnesota and included her Minnesota address on
the defamatory website at issue).
3
As a result, Higgins has failed
Higgins also points to SOH’s solicitation of volunteers
and donations, but this is irrelevant to the Calder effects test
because they are unrelated to SOH’s allegedly tortious acts.
8
to make a prima facie showing of personal jurisdiction.
II.
Jurisdictional Discovery
Higgins requests that she be allowed to conduct jurisdictional
discovery to determine if SOH has sufficient contacts for general
jurisdiction. To obtain leave to conduct jurisdictional discovery,
a plaintiff must offer “documentary evidence, and not merely
speculations or conclusory allegations.”
F.3d 580, 589 (8th Cir. 2008).
Steinbuch v. Cutler, 518
Higgins speculates that SOH may
have received donations from Minnesota because SOH’s record of
donations is redacted.
See James Decl. II Ex. B.
But the only
redacted items are the names and email addresses of SOH’s donors the donor’s states are not redacted.
Higgins’s bare allegation is
insufficient to overcome SOH’s evidence that it has not received or
solicited donations from Minnesota.
Ex. B.
See James Decl. II ¶ 10; id.
As a result, the court will not allow jurisdictional
discovery.
III. Failure to State a Claim
Because
the
court
concludes
it
does
not
have
personal
jurisdiction over SOH, it need not address SOH’s argument that the
complaint fails to state a claim.
9
CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that:
1.
Defendant’s motion to dismiss [ECF No. 8] is granted; and
2.
The case is dismissed without prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: May 14, 2018
s/David S. Doty
David S. Doty, Judge
United States District Court
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