Johnson v. GriffinJohnson v. Griffin
Greenberg Traurig
54 State Street
Sixth Floor
Albany, NY 12207
Mr. Robb S. Harvey
Holland & Knight
511 Union Street
Suite 2700
Nashville, TN 37219
Mr. John William Huber
Hemmer Wessels McMurtry
250 Grandview Drive
Suite 500
Ft. Mitchell, KY 41017
Mr. Todd VanDerVeer McMurtry
Hemmer Wessels McMurtry
250 Grandview Drive
Suite 500
Ft. Mitchell, KY 41017
Mr. Geoffrey M. Pipoly
Bryan Cave Leighton Paisner
161 N. Clark Street
Suite 4300
Chicago, IL 60601
Mr. Adam Siegler
Greenberg Traurig
1840 Century Park, E.
Suite 1900
Los Angeles, CA 90067
Law Office
311 22nd Avenue, N.
Nashville, TN 37203
Re: Case No. 23-5257, Samuel Johnson, et al v. Kathy Griffin
Originating Case No. : 3:22-cv-00295
Dear Counsel,
The court today announced its decision in the above-styled case.
Enclosed is a copy of the court‘s published opinion together with the judgment which has been entered in conformity with
Yours very truly,
Deborah S. Hunt, Clerk
Cathryn Lovely
Deputy Clerk
cc: Ms. Lynda M. Hill
Enclosures
Mandate to issue.
ARGUED: Todd V. McMurtry, HEMMER DEFRANK WESSELS, PLLC, Fort Mitchell, Kentucky, for Appellants. Michael J. Grygiel, GREENBERG TRAURIG, LLP, Albany, New York, for Appellee. ON BRIEF: Todd V. McMurtry, J. Will Huber, HEMMER DEFRANK WESSELS, PLLC, Fort Mitchell, Kentucky, Lyndsay C. Smith, SMITH, PLC, Nashville, Tennessee, for Appellants. Michael J. Grygiel, GREENBERG TRAURIG, LLP, Albany, New York, Adam Siegler, GREENBERG TRAURIG, LLP, Los Angeles, California, Robb S. Harvey, HOLLAND & KNIGHT, LLP, Nashville, Tennessee, for Appellee. Geoffrey M. Pipoly, BRYAN CAVE LEIGHTON PAISNER LLP, Chicago, Illinois, for Amicus Curiae.
SUTTON, C.J., delivered the opinion of the court in which COLE and THAPAR, JJ., joined. COLE, J. (pp. 10–13), delivered a separate concurring opinion.
SUTTON, Chief Judge. Kathy Griffin, a California-based celebrity and social activist, sent a series of tweets to her two million Twitter followers asserting that Tennessean Samuel Johnson, the CEO of Tennessee-based VisuWell, had engaged in homophobic conduct. She encouraged her followers to make him “online famous” and tagged his company. She then asked his employer to “remove[]” him from the Board of Directors and threatened that the “nation w[ould] remain vigilant” if it did not. Within a day of her first tweets, the company fired Johnson and removed him from the Board. Johnson and his wife sued Griffin in federal court in Tennessee, claiming (among other things) that she tortiously interfered with his employment. Griffin argued that her tweets did not subject her to the State‘s personal jurisdiction, and the district court dismissed the case. We disagree and reverse.
I.
On April 24, 2021, Samuel Johnson sat down for dinner at a hotel in Franklin, Tennessee. Shortly after, a group of forty to fifty teenagers began taking prom pictures nearby. The boisterous teenagers apparently disturbed Johnson and other customers, prompting him to ask the chaperone to settle them down. One of the teens, who was wearing a red prom dress, overheard the request and confronted Johnson, all while his boyfriend filmed the interaction. The video is not a picture (or record) of clarity. But at a minimum, it captures Johnson saying that the student in the red dress “look[s] like an idiot.” Kathy Griffin (@kathygriffin), Twitter (Apr. 26, 2021, 1:45AM), https://twitter.com/kathygriffin/status/1386556994560020481?s. And at a minimum, it captures the boyfriend trying to goad Johnson into reacting still more negatively to the student‘s attire. Johnson left the hotel to have dinner somewhere else.
The boyfriend posted the video to his TikTok account. TikTok deleted the clip soon after. But other users downloaded it and reposted it to social media sites, including Twitter. The clip came to the attention of VisuWell‘s Board chairman, who assured Johnson that the company would stand by him.
In response to Griffin‘s first tweet, several VisuWell customers condemned Johnson and threatened to reevaluate their business ties. At the time, VisuWell was a fast-growing tech start-up, whose “commercial success,” according to the complaint, “was due in large part to the proprietary software program” Johnson developed. Id. at 3, ¶ 14. During his three years as CEO, the complaint notes, he “helped increase its sales by 1,200%.” Id. at 3, ¶ 13. Despite its prior offer of support, VisuWell fired Johnson as the CEO and announced this decision on Twitter in a reply to Griffin‘s original tweet. Griffin responded to VisuWell‘s tweet by asking if it had removed Johnson from the Board as well and demanding to know what “measures” VisuWell was taking. Id. at 22, ¶ 89. She warned that keeping him on the Board would suggest that it “intends to rehire” him, adding that “the nation will remain vigilant.” Id. VisuWell responded that it had fired him, then clarified in a follow-up tweet that it no longer employed Johnson in any capacity. Still, the Johnsons continued to receive threats and face harassment while some of Griffin‘s followers celebrated by tweeting that they had succeeded.
II.
Federal courts start with state law in determining whether they have personal jurisdiction over a defendant in a diversity case. Daimler AG v. Bauman, 571 U.S. 117, 125 (2014); see
Due process requires the defendant to possess “certain minimum contacts with” the forum State “such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.‘” Int‘l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quotation omitted). Contacts with a forum state may generate two potential types of personal jurisdiction over an out-of-state defendant—“specific” jurisdiction arising from the defendant‘s “case-related contacts” and “general” jurisdiction arising from the defendant‘s “generic connections” to the State. Power Invs., LLC v. SL EC, LLC, 927 F.3d 914, 917 (6th Cir. 2019); see also Mallory v. Norfolk S. Ry. Co., 600 U.S. 122, 139 (2023) (plurality opinion). At stake in this case, as the parties agree, is only the possibility of specific jurisdiction over Griffin.
To possess specific jurisdiction over an out-of-state defendant, the defendant‘s “suit-related conduct” must show a “substantial connection with the forum State.” Walden, 571 U.S. at 284. Tortious conduct satisfies this requirement when the defendant intentionally cultivates contacts with the forum State, as opposed to forming “random, fortuitous, or attenuated
Two cases “bookend” this application of personal jurisdiction to intentional torts. Power Invs., 927 F.3d at 918. The first, Calder v. Jones, 465 U.S. 783 (1984), establishes that the effects of intentional torts sometimes may establish personal jurisdiction. In that case, a California actress sued Florida journalists in California for publishing a libelous article. Id. at 784–85. The Supreme Court permitted the California court to exercise personal jurisdiction over the journalists, observing that they had engaged in intentional conduct “expressly aimed at California,” not “untargeted negligence.” Id. at 789. They consulted “California sources” for the article whose “focal point” concerned California. Id. at 788–89. And they knew that the actress would experience the brunt of the injury in California, where the magazine had its largest circulation and where she lived and worked. Id.
The second case, Walden v. Fiore, identifies the other side of the line. In Walden, professional gamblers from Nevada sued an officer for seizing their cash at a Georgia airport. 517 U.S. at 281. Although the officer had formed “contacts with [the gamblers],” whom he knew lived in Nevada, he had “no jurisdictionally relevant contacts with Nevada.” Id. at 289. The officer had never traveled to the State, let alone conducted activities in or contacted anyone there. Id. His alleged torts against the Nevada residents occurred in Georgia, not Nevada. Id. at 288. Only Georgia had personal jurisdiction over him. See id.
Griffin‘s actions have more parallels to Calder than to Walden. See Power Invs., 927 F.3d at 919. As in Calder, the allegedly tortious “story concerned the [Tennessee] activities of a [Tennessee] resident. It impugned the professionalism of [an executive] whose [] career was centered in [Tennessee].” 465 U.S. at 788. And the tweet “was drawn from [Tennessee] sources.” Id. Griffin intended that the “brunt of the harm” would befall Johnson in Tennessee when she urged her followers to pressure VisuWell, a Tennessee-based company, to fire him and urged VisuWell to remove him from the Board. Id. at 789.
Griffin‘s repeated emphasis of Johnson‘s residence in Franklin and the company‘s home base in Nashville hammers that home. She “undoubtedly knew” that the “focal point” of her
Griffin counters that Blessing v. Chandrasekhar, 988 F.3d 889 (6th Cir. 2021), leads to a different conclusion. The case has many parallels to this one, most notably a lawsuit arising from the Twitter activity of Kathy Griffin. But to us, Blessing captures the other side of the line. In that instance, Griffin posted about an “incident” involving Kentucky students on a trip to Washington, D.C. Id. at 892–93. Her tweets encouraged followers to “[n]ame these kids,” “[s]hame them,” and “let [their school] know how you feel about their students[‘] behavior.” Id. at 893. We concluded that Griffin‘s actions did not satisfy Kentucky‘s long-arm statute, then added that personal jurisdiction would not have satisfied due process even if they had. Id. at 903–07. We reasoned that these tweets, all targeting actions in Washington, D.C., resembled Walden more than Calder because Griffin never took any “affirmative steps” to communicate with individuals in Kentucky when she tweeted about the student‘s conduct. Id. at 906. And the students felt the tweets’ harm “wherever [they] happened to be located,” not just in Kentucky. Id. at 906 n.17.
Missing in Blessing were allegations that Griffin had intentionally targeted Kentucky when provoking efforts to harass the students. See id. at 906. The Johnsons’ complaint, in marked contrast, focuses on Griffin‘s conduct that targeted Tennessee. See Peters Broad. Eng‘g,
Had Griffin done in Blessing what she did here, the case would have come out differently. Imagine if she had written to the students’ Kentucky school and urged it to dismiss them. Imagine if she had committed an intentional tort by lying about, or recklessly describing, what had happened in a message to their principal. And imagine if the school had dismissed the students as a result. This intentional tort would have sufficiently targeted the Commonwealth, and we have little doubt that the case would have permitted personal jurisdiction over her. Just as one cannot avoid personal jurisdiction by putting the tortious missive in a private letter to a school or company, see Schneider v. Hardesty, 669 F.3d 693, 696–97 (6th Cir. 2012), one cannot do the same by telling the world about it in a public letter, Tamburo v. Dworkin, 601 F.3d 693, 706 (7th Cir. 2010); Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1075–77 (10th Cir. 2008) (Gorsuch, J.). Due process provides no refuge for lies or reckless conduct directly sent to a decisionmaker in a forum, see Schneider, 669 F.3d at 696–97, 703–04, and it does not shield someone who intentionally incites third parties against that decisionmaker, see Tamburo, 601 F.3d at 707.
In the context of this employment dispute, the resolution is even more straightforward. We have not hesitated to hold that personal jurisdiction satisfies due process when a defendant‘s communications to decisionmakers in the forum state led to the plaintiff‘s firing. See Koch v. Loc. 438, United Autoworkers Union, 54 F. App‘x 807, 811–12 (6th Cir. 2002) (per curiam) (finding due process satisfied when a union official convinced the executive board to draft a
Griffin responds that she disseminated these tweets generally to her two million followers, and mere knowledge that some Tennessee residents would read them does not suffice to establish personal jurisdiction. See Reynolds v. Int‘l Amateur Athletic Fed‘n, 23 F.3d 1110, 1120 (6th Cir. 1994). But she cannot deny that, by tagging VisuWell, she sent these communications directly to the company. And she cannot deny that her follow-up tweets about removing Johnson from the Board amounted to direct communications with the Tennessee company. By also sending these tweets to every state in the country through her two million followers, she does not inoculate herself from personal jurisdiction in a targeted state. Targeting Johnson and VisuWell in Tennessee, based exclusively on conduct in Tennessee, and urging action in response in Tennessee, “tether[ed]” those effects to the forum. Blessing, 988 F.3d at 906; see Tamburo, 601 F.3d at 707 (finding personal jurisdiction where posts had “the express goal of inflicting commercial and reputational harm” on a man and his business). That conclusion would hold even if she had called only on non-Tennesseans to engage in her campaign. See Dudnikov, 514 F.3d at 1076.
What of the reality that, by tagging VisuWell, she also facilitated her broader communication efforts? The tagging, in other words, did two things: It directly communicated
Griffin, last of all, asks us to dismiss the complaint for failure to state a claim. But the district court should evaluate those arguments in the first instance. See Adkisson v. Jacobs Eng‘g Grp., Inc., 790 F.3d 641, 649 (6th Cir. 2015).
We reverse and remand.
COLE, Circuit Judge, concurring. I would also reverse the district court‘s decision because I agree that Kathy Griffin‘s direct communications with VisuWell about Samuel Johnson‘s employment, albeit via Twitter, subject her to personal jurisdiction in Tennessee. I write separately to discuss the applicable legal framework and how it applies in the social media context.
The facts of this case center around “Griffin‘s tweets concern[ing] the Video Clip of the April 24 Incident, which occurred at the Harpeth Hotel in Tennessee.” (Compl., R. 1, Page ID 8, ¶ 38; Compl. Ex. B, R.1-2, Page ID 111.) The fifty-nine second video, which does not capture the entire incident, first shows the teenager wearing a red prom dress speaking with Johnson in the hotel‘s courtyard. The teenager says, seemingly in continuance of an ongoing conversation, “I chose what I want to wear so you can f*** off.” To which Johnson smiles and responds, “is that right . . . is that right?“. The teenager then walks toward the hotel lobby to get away from Johnson, but Johnson follows him and says, “you look like an idiot.” The teenager‘s boyfriend continues to film while the teenager in the dress tells Johnson to get away from him. Johnson then reaches across the teenager in the dress and apparently attempts to smack the boyfriend‘s phone out of the way. Other adults in the courtyard appear to intervene by repeatedly asking Johnson to “please stop,” while also telling him that “it‘s a bunch of kids,” “it‘s a special night for them,” and “just don‘t let one thing bother you.” The clip ends shortly thereafter as the situation deescalates.
Griffin did not know the Johnsons or prom-goers before this incident, but she has a history of online advocacy. (See Compl., R. 32, Page ID 7, ¶ 32.) Indicated by the complaint, Griffin “has stated that she is an advocate for LGBTQIA+ rights and has organized various rallies and published various statements to that effect.” (Id. at ¶ 33.) Griffin also noted in her tweets to the boyfriend who first posted the clip that she was “proud to be an ally” and to “[l]et [her] know if there‘s anything [she] can do to help.” (Compl., R. 1–3, Page ID 55.)
Purposeful availment is the touchstone of the inquiry,1 and given Griffin‘s direct communications with VisuWell, our precedent makes clear that this prong is met here. In Schneider, we found purposeful availment was satisfied where the defendant allegedly sent two letters with fraudulent information to investors in Ohio with the intent that those investors would rely on that information to their detriment. 669 F.3d at 702–03 (“[P]urposeful availment may exist when a defendant makes telephone calls and sends [faxes] into the forum state and such communications form the bases for the action.“) (quoting Intera Corp v. Henderson, 428 F.3d 605, 616) (internal quotation omitted). Like Schneider, Griffin‘s conduct consisted of two direct communications aimed at the forum state with an alleged intent to cause a consequence there. 669 F.3d at 702–03. Specifically, Johnson alleges that VisuWell “terminated [his] employment contract as a result of [] Griffin‘s conduct.” (Compl., R. 1, Page ID 31, ¶ 132.) Thus, the “two [tweets] that [VisuWell] received in [Tennessee] form the basis for the action at issue,” here, loss of employment, and Griffin sending communications into Tennessee with the alleged intent to cause this “consequence” satisfies purposeful availment. Schneider, 669 F.3d at 701–702 (marks and citation omitted); cf. Tamburo v. Dworkin, 601 F.3d 693, 702 (7th Cir. 2010) (“[W]here, as
Future cases involving communication via social media, including Twitter, may not be as straightforward. As we noted in Blessing, “[o]ur sister circuits have routinely held that ‘posting allegedly [tortious] comments or information on an internet site does not, without more, subject the poster to personal jurisdiction wherever the posting could be read (and the subject of the posting may reside).‘” (emphasis added). See Blessing v. Chandrasekhar, 988 F.3d 889, 905 n.15 (6th Cir. 2021) (quoting Shrader v. Biddinger, 633 F.3d 1235, 1241 (10th Cir. 2011)). In the social media context, our precedent and other circuits illustrate that “something more” most likely means a sufficient showing of intent. Id. at 906 (finding no personal jurisdiction where “[t]here [was] no evidence that the defendants posted the[ir] tweets hoping to reach [the forum state] specifically as opposed to their Twitter followers generally“); see also Shrader, 633 F.3d at 1240–41 (“[I]t is necessary to adapt the analysis of personal jurisdiction to this unique circumstance by placing emphasis on the internet user or site intentionally directing [their] activity or operation at the forum state . . . .“) (emphasis in original) (citing ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 712–14 (4th Cir. 2002)).
I previously emphasized two points in the record—Johnson‘s behavior in the video clip and Griffin‘s history of LGBTQIA+ advocacy online—because both facts would play a more significant role in the purposeful availment inquiry if Griffin‘s communications into Tennessee were less apparent. To be clear, purposeful availment is satisfied here because of Griffin‘s direct communications with VisuWell about Johnson‘s employment, but the ever-changing mechanics of social media platforms might make this inquiry in other cases more difficult.
Imagine, for example, if Griffin‘s first retweet of the video clip were the exact same but for tagging or referencing VisuWell by name, instead reading: “If this is Sam Johnson in Nashville, Tennessee, the CEO of [a] healthcare-tech-growth [company] . . . it seems like he‘s dying to be online famous.” (See Compl. Ex. B, R.1-2, Page ID 111) (shrugging and rainbow flag emojis omitted). Excluding the VisuWell tag is only a minor, nine-character deviation from the original tweet, but—without the tag—the tweet would no longer be a direct communication
Whether Griffin intended to create contacts with the forum state would be much less clear when analyzing the edited tweet. To solve this problem, we would need to further scrutinize the record as to whether Griffin‘s post was (a) “passive” activity on the internet meant to facilitate her broader advocacy efforts by condemning problematic behavior, or instead, (b) deliberately directed into Tennessee with the intent to cause consequence there. See Shrader, 633 F.3d at 1241 (citing ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 712 (4th Cir. 2002) (drawing a line between (a) “[p]assive [i]nternet activity” and (b) “directing electronic activity into the State with the manifested intent of engaging business or other interactions in the State“)). It can certainly be the case that in furtherance of her advocacy efforts, Griffin also intended to establish sufficient contacts with Tennessee. Due process does not allow us to find specific jurisdiction, however, without the latter finding of intent.
Finally, I agree with the majority that it is for the district court to evaluate the merits of this case in the first instance. (Maj. Op. at 9.) Our opinion also does not comment on the veracity of Johnson‘s allegations in making our personal jurisdiction determination. Instead, when making this determination on written submission, we determine if Johnson has made a “prima facie showing that personal jurisdiction exists.” See Serras v. First Tenn. Bank Nat‘l. Ass‘n, 875 F.2d 1212, 1214 (6th Cir. 1989). Because Johnson has met his burden here, I concur.
On Appeal from the United States District Court for the Middle District of Tennessee at Nashville.
THIS CAUSE was heard on the record from the district court and was argued by counsel.
IN CONSIDERATION THEREOF, it is ORDERED that the judgment of the district court is REVERSED and REMANDED for further proceedings consistent with the opinion of this court.
ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk
Notes
Further, if the first two prongs of the test are met, then “an inference of reasonableness arises and only the unusual case will not meet [the substantial connection] criteria.” Air Prods. & Controls, Inc. v. Safetech Int‘l, Inc., 503 F.3d 544, 554 (6th Cir. 2007) (marks and citation omitted). Considering the typical factors we assess for the third prong, Griffin has not put forward sufficient considerations to “overcome or contradict” the inference of reasonableness here. Id. at 555.