McGibney et al v. Retzlaff, No. 5:2014cv01059 - Document 172 (N.D. Cal. 2015)

Court Description: ORDER GRANTING 134 MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION. Signed by Hon. Beth Labson Freeman on 6/18/2015. (blflc2, COURT STAFF) (Filed on 6/18/2015)
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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 JAMES MCGIBNEY, et al., 7 Case No. 14-cv-01059-BLF Plaintiffs, 8 v. 9 THOMAS RETZLAFF, 10 Defendant. ORDER GRANTING MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION [Re: ECF 134] United States District Court Northern District of California 11 12 Before the Court is the motion to dismiss for lack of personal jurisdiction filed by pro se 13 14 defendant Thomas Retzlaff (“Defendant”). Def.’s Mot., ECF 134. For the reasons stated herein, 15 Defendant’s motion is GRANTED, and this action is DISMISSED for lack of personal 16 jurisdiction.1 17 I. BACKGROUND 18 A. 19 This case sees the Internet at its worst. Plaintiffs are James McGibney and his company, Allegations in the Complaint 20 ViaView, Inc. (collectively, “Plaintiffs”). McGibney has, at all times relevant to this lawsuit, 21 resided in San Jose, California.2 Second Amended Compl. (“SAC”) ¶ 2, ECF 125. McGibney is 22 the founder and CEO of plaintiff ViaView, Inc., a Delaware corporation with “business centers” in 23 San Jose, California and Las Vegas, Nevada. Id. ¶ 3. ViaView owns and operates websites such 24 25 26 27 28 1 Also pending before the Court are Defendant’s separate motions to dismiss for lack of subject matter jurisdiction and for failure to state a claim, as well as Defendant’s special motion to strike pursuant to California Code of Civil Procedure § 425.16. ECF 59, 126, 132. Because this Court determines that it does not have personal jurisdiction over Defendant, those other motions are DENIED as moot. 2 McGibney also owns residential property in Las Vegas, Nevada. Id. 1 as “BullyVille,” an “anti-bullying website,” “CheaterVille,” an “anti-infidelity website,” and other 2 similarly named websites on topics such as karma, tattoos, and online dating. Id. ¶¶ 2-3, 122-23. 3 Plaintiffs and their websites have drawn the ire of certain members of the population. 4 These individuals excoriate McGibney, ViaView, and ViaView’s websites—in particular, 5 BullyVille and CheaterVille—through vitriolic postings on popular Internet forums such as 6 Twitter and Facebook, as well as through a dedicated weblog at Id. ¶¶ 7 136-37. Plaintiffs allege that Defendant is one of the more prolific of these Internet commenters. 8 Beginning in October 2013, Defendant allegedly used a number of different Internet aliases, or 9 “sock puppets,” to “harass, stalk, terrorize and defame” Plaintiffs and their business partners. Id. ¶¶ 136-39. By way of example, Plaintiffs allege that Defendant used the Twitter account 11 United States District Court Northern District of California 10 @KellySwift4 in November 2013 to tweet two celebrities who had endorsed BullyVille with the 12 following message: “Why do you support revenge porn w/ ur BullyVille endorsements? Don’t u 13 know BV runs Cheatersville revenge porn site too?!!” Id. ¶¶ 19, 148. Similarly, Defendant 14 allegedly used the Twitter account @Doxing_McGibney to publicly tweet McGibney’s Las Vegas 15 and San Jose addresses. Id. ¶¶ 20, 154. Plaintiffs also allege that Defendant used electronic mail 16 aliases to send unsavory emails to McGibney and a blogger who had worked with McGibney to 17 “shutter revenge porn websites.” Id. ¶¶ 21, 33-37, 155-57, 169, 171. 18 Based upon numerous tweets, emails, and other online postings that Plaintiffs attribute to 19 Defendant, Plaintiffs seek injunctive and monetary relief for tortious interference with contractual 20 relations (First Claim) and tortious inference with prospective economic advantage (Second 21 Claim). Id. ¶¶ 338-52. Plaintiff McGibney individually brings claims for intentional infliction of 22 emotional distress (Third Claim), defamation (Fourth Claim), and public disclosure of private 23 fact/invasion of privacy (Fifth Claim). 24 B. 25 Plaintiffs filed this lawsuit in March 2014 naming three defendants: Thomas Retzlaff, Neal 26 Rauhauser, and Lane Lipton. Defendants Rauhauser and Lipton were dismissed in November and 27 December of 2014, respectively, and Retzlaff remains the only named defendant. On November 28 20, 2014, the Court granted Defendant’s first motion to dismiss for lack of personal jurisdiction. Procedural History 2 1 Because Defendant had also filed a special motion to strike the complaint pursuant to California 2 Code of Civil Procedure § 425.16 (“anti-SLAPP” motion), the Court permitted Plaintiffs limited 3 leave to amend only their jurisdictional allegations. Order, ECF 102. Plaintiffs filed the operative 4 SAC on December 23, 2014, and Defendant subsequently renewed his challenge to personal 5 jurisdiction along with his other challenges to the SAC. 6 II. LEGAL STANDARDS Once a defendant brings a challenge to the court’s jurisdiction under Rule 12(b)(2), the 7 plaintiff bears the burden of establishing personal jurisdiction. Mavrix Photo, Inc. v. Brand 9 Techs., Inc., 647 F.3d 1218, 1223 (9th Cir. 2011); see also Scott v. Breeland, 792 F.2d 925, 927 10 (9th Cir. 1986) (a plaintiff must “come forward with facts, by affidavit or otherwise, supporting 11 United States District Court Northern District of California 8 personal jurisdiction”). Where, as is the case here, the defendant’s motion to dismiss is based on written materials 12 13 and not an evidentiary hearing, the plaintiff “need only make a prima facie showing of 14 jurisdictional facts.” Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1127 (9th 15 Cir. 2010). However, a plaintiff cannot “simply rest on the bare allegations of its complaint,” 16 Schwarzenneger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004) (quoting Amba 17 Mktg. Sys., Inc. v. Jobar Int’l, Inc., 551 F.2d 784, 787 (9th Cir. 1977)), because the court “may not 18 assume the truth of allegations in a pleading which are contradicted by affidavit,” Data Disc, Inc. 19 v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1284 (9th Cir. 1977). Uncontroverted allegations in the 20 complaint must be taken as true, Schwarzenneger, 374 F.3d at 800, and factual disputes contained 21 within declarations or affidavits are resolved in the plaintiff’s favor, Boschetto v. Hansing, 539 22 F.3d 1011, 1015 (9th Cir. 2008). 23 III. DISCUSSION 24 As an initial matter, the Court observes that Plaintiffs alleged a substantial number of new 25 facts in their SAC, including events that occurred after the filing of this lawsuit. While ostensibly 26 framed as “jurisdictional,” these allegations in fact defy the Court’s order that Plaintiffs’ 27 amendments be limited to allegations concerning this Court’s personal jurisdiction over 28 Defendant. See ECF 102, 121. The Court’s order was not merely directed toward formatting but 3 1 rather, as stated on the record at the November 20, 2014 hearing, because Defendant’s anti-SLAPP 2 motion precludes amendment to the substantive allegations supporting Plaintiffs’ claims. Much of 3 what has been alleged in Plaintiffs’ amended “jurisdictional” allegations is directed toward 4 bolstering the merits of their claims for relief. Moreover, the allegations that pertain to 5 Defendant’s more recent alleged misconduct are irrelevant to whether the Court has personal 6 jurisdiction in connection with the claims in this lawsuit, which were not allowed to be 7 substantively altered, and which were originally asserted in the First Amended Complaint and 8 replicated in the SAC without amendment. As such, the Court, in its analysis, disregards the 9 allegations in the SAC pertaining to events that occurred after March 17, 2014. 10 Personal jurisdiction can be either “general” or specific. See Helicopteros Nacionales de United States District Court Northern District of California 11 Colombia, S.A. v. Hall, 466 U.S. 408, 415-16 (1984). Plaintiffs only argue for specific jurisdiction 12 in this case. Pl.’s Opp. 4, ECF 141. In the absence of a specific statutory provision conferring 13 jurisdiction, federal courts apply the personal jurisdiction laws of the state in which they sit. 14 California’s long-arm jurisdictional statute is “coextensive with federal due process requirements.” 15 Mavrix, 647 F.3d at 1223. Thus, in order to exercise specific jurisdiction over a non-resident 16 defendant, the defendant must have sufficient “minimum contacts” with the forum state such that 17 the exercise of jurisdiction “does not offend traditional notions of fair play and substantial justice.” 18 Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Defendant contests that he has sufficient 19 minimum contacts with the State of California for this Court to exercise specific personal 20 jurisdiction over him. 21 The Ninth Circuit Court of Appeals, in Schwarzenegger v. Fred Martin Motor Co., 374 22 F.3d 797 (9th Cir. 2004), established a three-prong test for determining whether a non-resident 23 defendant is subject to specific personal jurisdiction: 24 25 26 27 28 (1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. 4 1 Id. at 802 (citing Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir. 1987). The plaintiff asserting the 2 existence of jurisdiction bears the burden of proof with regard to the first two elements. 3 Boschetto, 539 F.3d at 1016. If the first two elements are satisfied, the burden then shifts to the 4 defendant to “present a compelling case” that exercising jurisdiction would be unreasonable. See, 5 e.g., Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985). 6 A. 7 Before turning to the question of Defendant’s contacts with California, Plaintiff asserts that Defendant is not precluded from challenging personal jurisdiction. 8 collateral estoppel precludes Defendant from challenging this Court’s personal jurisdiction over 9 him. Pl.’s Opp. 2-3. Plaintiffs contend that the issue of personal jurisdiction was raised in a restraining order proceeding between the parties in the Superior Court of California for the County 11 United States District Court Northern District of California 10 of Santa Clara. Id. at 3. Over Defendant’s jurisdictional challenge, the state court judge entered a 12 restraining order against him and “[n]ecessary to [the judge’s] order is a finding that [Defendant] 13 is subject to personal jurisdiction in California.” Id. As such, Plaintiffs argue that Defendant 14 should be barred from re-litigating the issue of personal jurisdiction. 15 The doctrine of collateral estoppel, or issue preclusion, may apply to issues of personal 16 jurisdiction that were previously litigated. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585 17 (1999). Under this doctrine, a party is precluded from relitigating an issue if four requirements are 18 met: “(1) there was a full and fair opportunity to litigate the issue in the previous action; (2) the 19 issue was actually litigated; (3) there was final judgment on the merits; and (4) the person against 20 whom collateral estoppel is asserted was a party to or in privity with a party in the previous 21 action.” Wolfson v. Brammer, 616 F.3d 1045, 1064 (9th Cir. 2010) (emphasis added). 22 Under California law, a judgment is not final for the purposes of collateral estoppel “until 23 it is free from the potential of a direct attack, i.e. until no further direct appeal can be taken.” 24 Geographic Expeditions, Inc. v. Estate of Lhotka ex rel. Lhotka, 599 F.3d 1102, 1108 n.3 (9th Cir. 25 2010) (citing Abelson v. Nat’l Union Fire Ins. Co., 28 Cal. App. 4th 776 (1994)). Defendant 26 provided evidence that he has appealed the state court’s restraining order and that the judgment is 27 therefore not yet final. Def.’s Reply 7, ECF 143; id. Exh. 1. As such, collateral estoppel is 28 inapplicable to Defendant’s challenge to this Court’s exercise of personal jurisdiction. More 5 1 fundamentally, “a federal court must not fail to address the due process requirements of the federal 2 constitution through blind adherence to a state court’s determination of that issue.” Davis v. Metro 3 Prods., Inc., 885 F.2d 515, 519 (9th Cir. 1989). As such, an exercise of personal jurisdiction is “a 4 matter that must be independently determined by the federal court,” id., and is not amenable to the 5 offensive use of collateral estoppel that Plaintiffs urge here. Accord Kennedy v. Phillips, No. C11- 6 1231 MJP, 2012 WL 261612, at *3 (W.D. Wash. Jan. 30, 2012). Therefore, Defendant is not 7 precluded from challenging personal jurisdiction in this Court.3 8 B. 9 It is undisputed that Defendant does not reside in California. Moreover, he declares that he Plaintiffs failed to establish specific personal jurisdiction over Defendant. has not been in California in several years and does not own any property in this state. Decl. of 11 United States District Court Northern District of California 10 Thomas Retzlaff ¶¶ 3-5, ECF 134-1. When a case sounds in tort, as this one does, the Court 12 considers whether the defendant has “purposefully directed” his activities at the forum state, even 13 if those activities occurred elsewhere. Picot v. Weston, 780 F.3d 1206, 1212 (9th Cir. 2015). 14 “Under this test, a defendant purposefully directed his activities at the forum if he: ‘(1) committed 15 an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant 16 knows is likely to be suffered in the forum state.’” Id. (quoting Schwarzenegger, 374 F.3d at 803); 17 see also Calder v. Jones, 465 U.S. 783 (1984). Failing to plead any one of these three elements is 18 fatal to the plaintiff’s attempt to exercise jurisdiction. See Brayton, 606 F.3d at 1128-29. The 19 parties’ arguments on purposeful direction focus on the “express aiming” prong of this test. See 20 Def.’s Mot. 10-12; Pl.’s Opp. 5-6. 21 As the Ninth Circuit recently acknowledged, the personal jurisdiction analysis, as guided 22 by the United States Supreme Court’s ruling in Walden v. Fiore, 134 S. Ct. 1115 (2014), focuses 23 on “the defendant’s contacts with the forum state, not the defendant’s contacts with a resident of 24 the forum.” Picot, 780 F.3d at 1214. A plaintiff who resides in the forum state cannot be the only 25 link between the defendant and the forum. Id. (quoting Walden, 134 S. Ct. at 1122). “[M]ere 26 injury to a forum resident is not a sufficient connection to the forum”; courts analyzing personal 27 3 28 The Court declines Plaintiffs’ request to stay this action pending resolution of the state court appeal. No judicial benefit is imaginable from such an act. 6 1 jurisdiction must engage in a “forum-focused” inquiry. Walden, 134 S. Ct. at 1125. Although the 2 Walden court expressly declined to address the issue of virtual contacts, courts applying the 3 familiar Calder test in Internet cases consistently hold that more is required for the exercise of 4 personal jurisdiction than injurious Internet postings floating in the ether that happen to find their 5 way to the plaintiff’s attention in the forum state. Patchen v. McGuire, No. CIV.A. 11-5388, 2012 6 WL 4473233, at *5-13 (E.D. Pa. Sept. 27, 2012); Mavrix, 647 F.3d at 1231 (“Not all material 7 placed on the Internet is, solely by virtue of its universal accessibility, expressly aimed at every 8 state in which it is accessed.”); Young v. New Haven Advocate, 315 F.3d 256, 264 (4th Cir. 2002) 9 (no personal jurisdiction over newspaper that posted allegedly defamatory article on passive website); see also DFSB Kollective Co. v. Bourne, 897 F. Supp. 2d 871, 874 (N.D. Cal. 2012); 11 United States District Court Northern District of California 10 Advanced Tactical Ordnance Sys., LLC v. Real Action Paintball, Inc., 751 F.3d 796, 803 (7th Cir. 12 2014). Recently, a California Court of Appeal applying Walden and Calder reiterated the plainly 13 obvious proposition that “merely posting on the Internet negative comments about the plaintiff and 14 knowing the plaintiff is in the forum state are insufficient to create minimum contacts.” Burdick v. 15 Superior Court, 233 Cal. App. 4th 8, 25 (2015). 16 Here, all of Defendant’s alleged misconduct occurred outside of California and in 17 cyberspace. A significant portion of the allegations concern negative comments posted on public 18 Internet forums. See SAC ¶¶ 140-46, 154, 158-64, 167-68, 170, 173-75, 179-82. Plaintiffs have 19 offered no facts or evidence to indicate that these comments were directed toward a California 20 audience, whether they interfered with ViaView’s business or defamed McGibney.4 Indeed, 21 Defendant’s declaration indicates that until the filing of this lawsuit, he believed Plaintiffs were in 22 Las Vegas, Nevada because ViaView is incorporated in Delaware and publicly lists only an office 23 in Nevada.5 Retzlaff Decl. ¶¶ 7-8; id. Exh. 2. Plaintiffs submitted no evidence to refute these 24 assertions. In any case, even taking these allegations at face value, postings on public Internet 25 4 26 27 Although the economic torts (First and Second Claims) are alleged on behalf of both plaintiffs, there is no evidence that McGibney has any business relationships outside of ViaView that were injured by the alleged misconduct. 5 28 Obviously, Defendant is now very much of aware of where Plaintiffs are located. 7 1 forums, without more, are insufficient to establish minimum contacts with California. Burdick, 2 233 Cal. App. 4th at 25; see also Love v. Associated Newspapers, Ltd., 611 F.3d 601, 616 n.4 (9th 3 Cir. 2010) (no personal jurisdiction in California where plaintiff failed to allege facts 4 demonstrating that defendant intentionally targeted plaintiff’s business interests in California, 5 especially because plaintiff was a citizen of Nevada and not California). There are some allegations in the SAC concerning targeted communications via Twitter 6 and email. Under various guises, Defendant is alleged to have tweeted at a celebrity and sent 8 harassing emails to McGibney, one of McGibney’s acquaintances, and at least one of ViaView’s 9 board members, all of whom are resident in California.6 See SAC ¶¶ 19, 21, 33, 35-38, 40, 153, 10 155-57, 169, 171-72, 183, 184. These more direct virtual contacts present a closer question on 11 United States District Court Northern District of California 7 personal jurisdiction, but cannot surmount the challenges advanced by Defendant. As an initial 12 matter, Defendant roundly denies being in personal communication with plaintiff McGibney and 13 moreover denies all of the misconduct that Plaintiffs attribute to him, including knowledge of 14 ViaView’s advertising partners and the location of ViaView’s former celebrity endorsers. Retzlaff 15 Decl. ¶¶ 8, 11. The only evidence submitted in support of Plaintiffs’ opposition to Defendant’s 16 present motion is the declaration of plaintiff McGibney, which largely restates the allegations in 17 the SAC.7 See Decl. of James McGibney, ECF 141-1. When the factual basis for jurisdiction is 18 challenged, as it has been here, a plaintiff cannot “simply rest on the bare allegations of its 19 complaint, but rather [is] obligated to come forward with facts, by affidavit or otherwise, 20 supporting personal jurisdiction.” Amba Mktg. Sys., Inc. v. Jobar Int’l, Inc., 551 F.2d 784, 787 21 (9th Cir. 1977); Schwarzenneger, 374 F.3d at 800. In other words, while the plaintiff’s burden is 22 6 23 24 25 26 It is not entirely clear what relevance some of these allegations have to Plaintiffs’ claims against Defendant in this lawsuit. For example, while the Court will accept that emailing McGibney’s acquaintance Adam Steinbaugh to threaten disclosure of private information might be relevant to McGibney’s intentional infliction of emotional distress claim, Defendant’s alleged act of “emailing Adam Steinbaugh directions and travel time” from Defendant’s location to Mr. Steinbaugh’s apartment in Los Angeles is, if anything, only relevant to a potential claim by Mr. Steinbaugh. See SAC ¶ 21. 7 27 28 As with the SAC, the Court disregards the portions of the McGibney declaration concerning events after March 17, 2014. The portions that are relevant to the Court’s consideration restate the allegations in the SAC. 8 a low one, he still must show the existence of jurisdictional facts “based on affirmative proof 2 beyond the pleadings, such as affidavits, testimony or other competent evidence of specific facts.” 3 4 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1067.6 (3rd ed. 4 2002) (emphasis added); Abrams Shell v. Shell Oil Co., 165 F. Supp. 2d 1096, 1103 (C.D. Cal. 5 2001). Mr. McGibney’s declaration in support of Plaintiffs’ opposition brief provides no 6 competent evidence to refute Defendant’s declaration. For example, McGibney declares that he 7 can testify “on personal knowledge” that “[Defendant] knew that [McGibney’s] resident and 8 domicile was in San Jose, California and [Defendant] intentionally committed wrongs against 9 [Plaintiffs] . . . knowing that we were in San Jose, California” and that Defendant is behind the 10 various Twitter and email aliases that perpetrated the alleged misconduct. See, e.g., McGibney 11 United States District Court Northern District of California 1 Decl. ¶¶ 5, 10, 13, 15-19, 22-25, 29, 31, 33-40, 43, 45-47, 49, 51-52, 56, 58, 60, 68. These are 12 simply recapitulated allegations from the SAC. More fundamentally, Plaintiffs provide no 13 foundation for McGibney’s ability to testify on personal knowledge to any of these allegations 14 concerning Defendant’s intent, knowledge, and operation of the alleged aliases. Plaintiffs cannot 15 avoid their evidentiary burden on a factual challenge to personal jurisdiction by resting on the 16 allegations in the SAC. Absent competent evidence, Plaintiffs failed to make a prima facie 17 showing of jurisdictional facts sufficient to carry their burden of establishing the first two 18 elements of the Calder effects test. Accord Fahmy v. Hogge, No. CV 08-1152 PSG SHX, 2008 19 WL 4614322, at *5 (C.D. Cal. Oct. 14, 2008). 20 “As a practical matter, email does not exist in any location at all; it bounces from one 21 server to another, it starts wherever the account-holder is sitting when she clicks the “send” button, 22 and it winds up wherever the recipient happens to be at that instant. The connection between the 23 place where an email is opened and a lawsuit is entirely fortuitous.” Advanced Tactical Ordnance 24 Sys., 751 F.3d at 803. Thus, without more to establish Defendant’s association with the email 25 accounts alleged in the SAC, as well as his knowledge that the recipients of those emails were 26 California residents, Plaintiffs have failed to establish Defendant’s contacts with this forum. 27 Much as in Picot and Walden, any suit-related connections between Defendant and the State of 28 California were, on the record before the Court, “random, fortuitous, or attenuated.” Walden, 134 9 1 S. Ct. at 1123 (quoting Burger King, 471 U.S. at 475). As such, Plaintiffs failed to demonstrate, 2 through affirmative proof with competent evidence beyond the pleadings, that Defendant has 3 sufficient contacts with this forum that the exercise of specific personal jurisdiction over him 4 comports with “traditional notions of fair play and substantial justice.” Int’l Shoe, 326 U.S. at 5 316; accord Patchen, 2012 WL 4473233, at *5-13. To be sure, Defendant is now fully on notice of Plaintiffs’ location and of their attention to 6 7 his alleged postings. Future misconduct targeted at Plaintiffs may tilt the analysis in favor of 8 specific personal jurisdiction in California in connection with a different complaint. As it stands, 9 based upon the relevant allegations in the SAC and the competent evidence before the Court, this Court does not have specific personal jurisdiction over Defendant. Defendant’s motion must 11 United States District Court Northern District of California 10 therefore be GRANTED. 12 IV. ORDER 13 For the foregoing reasons, IT IS HEREBY ORDERED that Defendant’s Motion to 14 Dismiss for Lack of Personal Jurisdiction is GRANTED, without further leave to amend, and this 15 action is DISMISSED, without prejudice, for lack of personal jurisdiction. As this Court lacks 16 personal jurisdiction over Defendant, the Court declines to address any of Defendant’s remaining 17 motions. The Clerk of the Court shall close the case file. 18 19 20 21 IT IS SO ORDERED. Dated: June 18, 2015 ______________________________________ BETH LABSON FREEMAN United States District Judge 22 23 24 25 26 27 28 10