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Wednesday, May 11, 2011

It's all about procedure, naturally

Lyrissa mentioned the defamation case arising from the "Bodies" Exhibition; the district court's opinion is here. Three thoughts:

1) First, the judge's personal jurisdiction analysis would probably deserve a 'C" in Civ Pro.

The judge relies on the "effects test," with the key contacts being a web site. But the court proceeds to find jurisdiction based solely on the defendants putting up a web page (which it conclusorily describes as "interactive," an unfortunate buzzword) accessible from anywhere in the United States. This is a very liberal understanding of the effects test, given that, because the plaintiffs are not from Florida, no real harm (and certainly not the "brunt" of the harm) was felt here. The court found that the statements on the web site were aimed at the plaintiff and the exhibition--but the plaintiff is not in Florida in any real sense and the exhibition was no more in Florida than it was anywhere else. The logic of this opinion comes very close to creating nationwide jurisdiction over people putting things up on web sites.

Moreover, the court mentions much non-web conduct--including public testimony, public statements, and media interviews--none of which took place in Florida; the court mentions statements in Pennsylvania and Hawaii. Worse, the court identifies the particular statements at issue in the case, but does not say whether they were posted on the web site. [ED: I just read the Complaint, which does allege that the defamatory statements were made on the web site and in public appearances and statements]. In other words, the web contacts may not actually be the ones giving rise to the claim. In which case, the court is finding general jurisdiction over an individual based on a web site accessible from anywhere. Which, any of my students will tell you, is just wrong.

2) The defendants did not move to transfer venue, which is surprising. The plaintiffs are not from Florida and have no connection to Florida. The public statements at the heart of the action were made in several places, none of them Florida, which means the state really has no connection to the case. So even if the defendants are subject to jurisdiction, there is at least an argument that some other district (Hawaii, Virginia, or DC make the most sense) is more proper. I think it at least would have been a good candidate for transfer.

3) The plaintiffs seek an injunction against the defendants making future defamatory statements about the exhibit, a problematic remedy that SCOTUS seemed poised to declare constitutionally forbidden a few years ago, but for Johnny Cochran's death.

Anyway, I may have found a good case for next year's Civ Pro class (or is talking about my teaching plans self-promotion?).

Posted by Howard Wasserman on May 11, 2011 at 12:13 PM in Civil Procedure, Current Affairs, Howard Wasserman | Permalink


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