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Introduction

McCullough & McKenty represents an internet activist who was sued in Pennsylvania for defamation and tortious interference with business contract. The defendant had received unsolicited commercial email ("spam") and complained to the spammer''s internet service provider, which promptly disconnected the spammer.

The defendant lives in California and we filed a Motion to Dismiss the Pennsylvania lawsuit for lack of jurisdiction. Instead of filing a response, the plaintiffs voluntarily dismissed the action, reserving the right to refile in California. Excerpts from our brief are reprinted below.

Jurisdiction Argument

The Complaint lists allegedly defamatory Internet newsgroup and website postings by defendant. Any statements at issue in this lawsuit posted to public Internet newsgroups originated from defendant''s computer in California to Internet servers also located in California. Any statements at issue in this lawsuit posted on defendant''s website originated from his computer in California and were maintained on his computer server in California.

In Barrett v. The Catacombs Press, 44 F. Supp. 2d 717, 723-24 (E.D. Pa. 1999), there was a finding of no jurisdiction over the moving defendant because the primary vehicle for her alleged defamatory statements was a "passive" website that was not located in Pennsylvania and was not intended to target Pennsylvania residents. Id. at 727. The Court in Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997), after reviewing available cases and materials, stated that "the likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet." Entering into contracts over the Internet with residents of a state will result in a finding of personal jurisdiction in that state but, on the other hand, a "passive" website "that does little more than make information available to those who are interested in it is not grounds for the exercise [of] personal jurisdiction."

The Barrett Court found that posting messages to USENET (newsgroup) discussion groups does not differ, for jurisdictional purposes, from information available on a "passive" website and specific jurisdiction does not result from such activity. 44 F. Supp. 2d. at 727. The non-website statements alleged by plaintiffs to form the basis for the libel, defamation, and false light counts of the Complaint are Internet newsgroup posts. Such newsgroups are accessible to virtually anyone with Internet access and postings are not directed to Pennsylvania but rather are accessible from any jurisdiction in the world. See American Civil Liberties Union v. Reno, 929 F. Supp. 824, 834-35 (E.D. Pa. 1996) (Findings of Fact 25 & 26), aff''d, 521 U.S. 844 (1997).

The "tort out/harm in" theory of specific jurisdiction under the Pennsylvania long-arm statute, 42 Pa. C.S.A. . 5322(a)(4), has been criticized for not fitting within the general jurisdiction/specific jurisdiction analysis applied by the federal courts in the Third Circuit. Simkins Corp. v. Gourmet Resources International, Inc., 601 F. Supp. 1336, 1340-41 (E.D. Pa. 1985). "In order to avoid this inherent conflict between the case law and the statute, the courts have focused on the ultimate question of whether the exercise of jurisdiction in such cases comports with the principles of due process." Id. at 1341.

The effects test of Calder v. Jones, 465 U.S. 783 (1984), which involves a similar analysis, first was utilized by the Third Circuit Court of Appeals in Imo Industries, Inc. v. Kiekert AG, 155 F.3d. 254 (3d. Cir. 1998). The Imo Industries Court stated that a plaintiff attempting to establish jurisdiction under the effects test has the burden to show: "(1) The defendantcommitted an intentional tort; (2) The plaintiff felt the brunt of the harm in the forum such that the forum can be said to be the focal point of the harm suffered by the plaintiff as a result of that tort; (3) The defendant expressly aimed his tortious conduct at the forum such that the forum can be said to be the focal point of the tortious activity." Id. at 265-66 (footnote omitted). The Court noted that Calder did not "carve out a special intentional torts exception to the traditional specific jurisdiction analysis, so that a plaintiff could always sue in his or her home state. . . . Calder requires more than a finding that the harm caused by the defendant''s intentional tort is primarily felt within the forum." Id. at 265. To meet the requirement that a defendant''s alleged tortious conduct be "expressly aimed" at the forum, typically there will have to have been some type of "entry" by defendant into the forum state. Id. (emphasis in original).

The Barrett Court refused to assert specific jurisdiction on the basis of plaintiffs'' claim "that the brunt of the harm from such defamatory statements was suffered in Pennsylvania, which is the focal point of his professional and personal life. It certainly is foreseeable that some of the harm would be felt in Pennsylvania because Plaintiff lives and works there, but such foreseeability is not sufficient for an assertion of jurisdiction." Id. at 730 (citing World Wide Volkswagen, 444 U.S. at 295). See also Westhead v. Fagel, 416 Pa. Super. 561, 611 A.2d 758 (1992) (damage to reputation in Pennsylvania was insufficient to establish personal jurisdiction for allegedly defamatory statements made in California).