« Professors and political correctness | Main | SCOTUS Term: Masterpiece Cakeshop And The Entry Ban »

Saturday, June 02, 2018

The Civ Pro case that was and could have been

This decision from the District of Maryland granting in part and denying in part a 12(b)(6) motion is a nice Civ Pro problem, both for what it addresses and what it doesn't address--and how. This is a tort action by journalist Kurt Eichenwald, who brought tort claims against John Rivello (known as "@jew_goldstein), a Maryland citizen who sent a GIF containing an animated strobe image designed to cause Eichenwald, who has Epilepsy, to suffer a seizure. The defendant moved to dismiss two of the claims for failure to state a claim, arguing that Texas does not recognize the civil claim of battery (only assault), that there cannot be batter without physical contact, and that Texas does not recognize the tort of purposeful infliction of bodily harm as a prima facie tort. The court analyzed Texas law and the allegations of the complaint to reject the first two arguments.

The court dismissed the count of purposeful infliction, without prejudice. The court recognized this as a "developing area of the law," but that "[i]t is not the place of a federal court, particularly one in Maryland, to interfere with a developing body of state tort law in Texas." But it dismissed without prejudice, "with an eye alert to avoiding disregard of State law" and not preventing plaintiff "from trying his hand in a different court, or at a different time." This does not seem quite right. The uncertainty of state law is not a basis for the court to find that the pleading fails to state a claim for relief. Rule 12(b)(6) dismissal, even without prejudice, is not a form of discretionary abstention. No recognized abstention doctrine fits this situation; the closest might be Burson Burford, although that usually involves complex state administrative law, not individual torts. The court had two appropriate options. One was to certify the issue to the Texas Supreme Court (assuming Texas allows for certification). The other was to make an Erie Prediction of what the Texas Supreme Court would do if presented with this case. And those options are appropriate for any federal court, including one located in a state other than the one whose laws are at issue.

The Civ Pro issue that could have been is about personal jurisdiction. Eichenwald, who is from Texas, went to the home of the defendant, who is from Maryland. But there is a fun question of whether Eichenwald could have sued in Texas. Rivello directed the GIF at a Texas citizen intending to cause a Texas citizen harm. But did he intend that it be seen or cause that harm in Texas? By sending it online, it went everywhere and could have been seen wherever Eichenwald happened to be when he saw the file, not necessarily in Texas. The counter-factual combines the recent narrowing of Calder with the problem of establishing purposeful availment through online conduct.

Posted by Howard Wasserman on June 2, 2018 at 02:40 PM in Civil Procedure, Howard Wasserman | Permalink


Oops. I meant the plaintiff asked for it to be dismissed without prejudice (p. 14), as the court did.

Posted by: Biff | Jun 3, 2018 4:03:29 PM

I don't read it as the plaintiff agreeing it should be dismissed. He agreed the cause of action hasn't been recognized, but presumably wanted the court to make a prediction. Or, he agreed that if it was to be dismissed, it should be without prejudice.

It's not clear he can sue in Texas.

The point of allowing multiple claims, even seemingly overlapping ones, is that the facts may turn out to be something other than pled. So the plaintiff should have an opportunity to pursue all available rights that might be in play on the believed or likely facts.

Posted by: Howard Wasserman | Jun 3, 2018 2:47:40 PM

FWIW, both the defendant and plaintiff agreed that the claim should be dismissed because Texas doesn't recognize that cause of action. The defendant asked for it to be dismissed without prejudice and the court acquiesced.

Does Maryland recognize that cause of action? If so, then if he sued in Texas, he would be able to use that claim.

Anyway, there was really only one thing that happened, so as long as some causes are permitted, does it really matter if one is dismissed?

Posted by: Biff | Jun 3, 2018 1:48:30 PM



Posted by: MarcusNeff | Jun 3, 2018 9:24:44 AM

Thanks for that interesting post and ruling . You claim that :

" Rivello directed the GIF at a Texas citizen intending to cause a Texas citizen harm. But did he intend that it be seen or cause that harm in Texas? By sending it online, it went everywhere and could have been seen wherever Eichenwald happened to be when he saw the file, not necessarily in Texas.

End of quotation :

But , even if we accept indeed , that online is everywhere , that is to say , that in this case , especially in Texas over everywhere . Because , not only actually opened there ( the file ) but , the plaintiff is a resident of Texas . So , anyway , the choices are over here it seems !! This could be apparently an issue , if not opened in Texas , and by a Texan resident .
Assuming , that jurisdiction has to do prima facie with territory typically ( while family law may be an exemption ) then , there is no issue here . Since the moving party is naturally the person harmed by the tort of course , and he is a Texan resident , and been opened there ( the file at issue ).

As such , his intent ( of the wrongdoer ) couldn't be really effective here it seems . Even if online is everywhere , that is to say , including Texas , but not only not limited to , but , especially in Texas .


Posted by: El roam | Jun 2, 2018 6:08:39 PM

Wait, so Maryland choice of law points to Texas and Texas choice of law points to Maryland? Wow.

Reading your comments, it becomes clear how the court hoses the plaintiff. The assumption is that a Texas court should resolve this developing area of state law. But this plaintiff may be unable to get to a Texas court on Texas law on this claim, either because the defendant is not subject to jurisdiction in Texas or because Maryland law would apply in Texas court.

So, unlike true abstention, the court's 12(b)(6) dismissal does not leave the plaintiff with an alternative forum for his claim. A plaintiff has a right to assert a claim and for the court to resolve that claim, even if the law is uncertain at the time the claim is brought. The way the court resolved this case does not leave the plaintiff with that opportunity.

Posted by: Howard Wasserman | Jun 2, 2018 4:17:45 PM

Texas law allows certification only from federal courts of appeals, so I don't think certification would be allowed. And I would love to see that personal jurisdiction question answered! Texas has recently reaffirmed the effects test, so I suspect the case would be able to proceed there (and least until SCOTUS gives us a clearer answer). I agree that the disposition of the 12(b)(6) "without prejudice" seems inappropriate, but if it opens the door to litigating an open question of Texas law in Texas, maybe that is not a bad thing. On the other hand, it is not entirely clear that Texas choice-of-law rules would point to substantive Texas law here--how ironic if the case could go forward in Texas, but under Maryland law.

Posted by: CBR | Jun 2, 2018 3:52:06 PM

Post a comment