Lead Opinion
{¶ 1} In this case, we address whether an Ohio court can properly assert personal jurisdiction over a nonresident defendant when jurisdiction is predicated on that defendant’s publication of allegedly defamatory statements on the Internet. For the reasons that follow, we hold that the trial court erred when it declined to assert personal jurisdiction over the nonresident defendant in this case.
Factual and Procedural Background
{¶ 2} Appellee, Kauffman Racing Equipment, L.L.C. (“KRE”), is an Ohio limited-liability company that constructs engine blocks and related high-performance automotive equipment for public sale. Although its business dealings are nationwide, KRE maintains its sole business operations and office in Glenmont, Ohio.
{¶ 3} Appellant, Scott Roberts, is a 30-year resident of Virginia. Roberts has never physically entered Ohio. On February 6, 2006, using the name “Central
{¶ 4} In October 2006, eight months after purchasing the engine block, Roberts contacted KRE by telephone, claiming that the block was defective. Although its products are sold “as is,” KRE offered to retrieve the block from Virginia and bring it back to KRE’s Ohio office for inspection. KRE and Roberts agreed that if KRE could verify that the product was defective, it would buy back the engine block at the price paid by Roberts.
{¶ 5} KRE’s inspection revealed that after KRE had delivered the block to Roberts, substantial modifications had been made from the block’s original specifications. When KRE contacted Roberts and presented this information, Roberts admitted that Central Virginia Machine had altered the block. Because KRE believed that Roberts’s modifications were the cause of the defects, it declined to buy back the block and instead shipped it back to Roberts in Virginia.
{¶ 6} Roberts was dissatisfied. As a result, from October 18, 2006, through November 2006, Roberts posted numerous rancorous criticisms of KRE on various websites devoted to automobile racing equipment and related subjects. His commentary appeared on the public-forum section of the websites Perfor-manceYears.com and PontiacStreetPerformance.com and in an item description on the Internet auction website eBay Motors.
{¶ 7} Roberts sought to affect KRE’s reputation. In an October 18, 2006 post on the PerformanceYears.com website, Roberts wrote:
{¶ 8} “Bought a MR-1 Block from Kauffman in march [sic] of this year * * *
{¶ 9} “Now, I have and have had since the day the block was delivered, a USELESS BLOCK. I didn’t say worthless! I plan to get a lot of mileage out of it[J And when i’m [sic] done Steve Kauffman will be able to attest to its worth.” (Capitalization sic.)
{¶ 10} Later the same day, Roberts added:
{¶ 11} “I did send it back. They still have it. Steve Kauffman admitted on the phone that he got similar numbers on the sonic test as i [sic] did but he won’t take it back because I did some work to it and have had it to [sic] long. I guess it doesn’t matter that the day I got it all of the defects exsisted [sic] and nothing I have done caused them. But don’t worry about that. What I loose [sic] in dollars I will make up in entertainment at their expence [sic].” (Boldface sic.)
{¶ 12} The following day, October 19, 2006, Roberts wrote:
{¶ 13} “You don’t seem to understand. As far as Steve kauffinan [sic] is concerned the issue is resolved. * * * Again, this is not to get a resolution. I have a much bigger and dastardly plan than that and this is the perfect place to*83 start. * * * (LOL) * * * Here is another good board to visit! * * * Just trying to help other potential victims.” (Emoticons omitted.)
{¶ 14} On the eBay Motors auction site, Roberts ostensibly listed the block for sale. In the item description, he wrote:
{¶ 15} “This is a Kauffman MR-1 Block. It has some real issues. * * * Steve Kaufmann [sic] says it’s the best aftermarket block out there for a Pontiac, but I now know better. * * * Basically this block is junk and I have bought an IA-II block to replace it. It has never been assembled. * * * Also the service you would get from Steve Kauffman of K & M performance is less than honorable. I brought the issues to his attention and he basically gave me the middle finger salute. He would not take it back because I had it for more than 90 days. I will never do business with Kauffman or KRE again. Not just because of the block issues but mostly the lack of service issues. E-mail me and I will tell you the whole story. However the block (junk) is for sale ‘as is’!”
{¶ 16} Roberts explained his eBay Motors auction in another post on Perfor-manceYears.com:
{¶ 17} “As far as the block on e-bay. Thats [sic] nothing more than getting the FACTS out to more people. Do you believe anyone will read that add [sic] and buy it? I can assure you this block issue is faaaaar from over. Do you think I would spread this around like I have and plan to if I thought I couldn’t back EVERYTHING up?
{¶ 18} “Again, I am not here to stir any pots. I posted facts I can back up 100%. I can’t control what others say or do!” (Capitalization sic.)
{¶ 19} Steve Kauffman of KRE personally received separate inquiries regarding Roberts’s Internet postings from at least five Ohio residents.
{¶ 20} Consequently, KRE filed a complaint in Knox County Court of Common Pleas seeking money damages from Roberts for defamation and intentional interference with contracts and business relationships. The trial court granted Roberts’s motion to dismiss for lack of personal jurisdiction on June 1, 2007, and dismissed KRE’s complaint.
{¶ 21} KRE appealed. The Fifth District Court of Appeals reversed the trial court’s judgment. Kauffman Racing Equip., L.L.C. v. Roberts, Knox App. No. 07-CA-14,
Law and Analysis
{¶ 23} This case emanates from comments Roberts allegedly made on the Internet. Does this fact affect the way this court should approach the jurisdictional question? In this case, we think not.
{¶ 24} Over 50 years ago, the United States Supreme Court acknowledged that jurisdictional jurisprudence must evolve alongside technological developments: “As technological progress has increased the flow of commerce between States, the need for jurisdiction over nonresidents has undergone a similar increase.” Hanson v. Denckla (1958),
{¶ 25} The rise in Internet-related disputes does not mean courts should ignore traditional jurisdiction principles. “ ‘[T]he Internet does not pose unique jurisdictional challenges. People have been inflicting injury on each other from afar for a long time. Although the Internet may have increased the quantity of these occurrences, it has not created problems that are qualitatively more difficult.’ ” Jansen, 71 Mo.L.Rev. at 182, 183, quoting Allen R. Stein, Symposium, Personal Jurisdiction and the Internet: Seeing Due Process Through the Lens of Regulatory Precision (2004), 98 Nw.U.L.Rev. 411.
{¶ 26} In some cases involving the Internet, the Zippo test, developed in Zippo Mfg. Co. v. Zippo Dot Com, Inc. (W.D.Pa.1997),
{¶ 27} Personal jurisdiction is a question of law that appellate courts review de novo. In this case, upon Roberts’s motion to dismiss, it became KRE’s burden to show that the trial court had personal jurisdiction over Roberts; because the trial court decided Roberts’s Civ.R. 12(B)(2) motion upon written submissions and without an evidentiary hearing, KRE had to make only a prima facie showing of jurisdiction. Fallang v. Hickey (1988),
{¶ 28} Determining whether an Ohio trial court has personal jurisdiction over a nonresident defendant involves a two-step analysis: (1) whether the long-arm statute and the applicable rule of civil procedure confer jurisdiction and, if so, (2) whether the exercise of jurisdiction would deprive the nonresident defendant of the right to due process of law under the Fourteenth Amendment to the United States Constitution. U.S. Sprint Communications Co. Ltd. Partnership v. Mr. K’s Foods, Inc. (1994),
{¶ 29} Ohio’s long-arm statute, R.C. 2307.382, enumerates specific acts that give rise to personal jurisdiction and provides:
{¶ 30} “(A) A court may exercise personal jurisdiction over a person who acts directly or by an agent, as to a cause of action arising from the person’s:
{¶ 31} “ * * *
{¶ 32} “(3) Causing tortious injury by an act or omission in this state;
{¶ 33} “* * *
{¶ 34} “(6) Causing tortious injury in this state to any person by an act outside this state committed with the purpose of injuring persons, when he might reasonably have expected that some person would be injured thereby in this state.”
{¶ 36} “(A) Service of process may be made outside of this state, as provided in this rule, in any action in this state, upon a person who, at the time of service of process, is a nonresident of this state or is a resident of this state who is absent from this state. ‘Person’ includes an individual * * * who, acting directly or by an agent, has caused an event to occur out of which the claim that is the subject of the complaint arose, from the person’s:
{¶ 37} “* * *
{¶ 38} “(3) Causing tortious injury by an act or omission in this state, including, but not limited to, actions arising out of the ownership, operation, or use of a motor vehicle or aircraft in this state;
{¶ 39} “* * *
{¶ 40} “(9) Causing tortious injury in this state to any person by an act outside this state committed with the purpose of injuring persons, when the person to be served might reasonably have expected that some person would be injured by the act in this state.”
{¶ 41} Roberts contends that Ohio’s long-arm statute does not confer personal jurisdiction because he did not direct the alleged tortious statements to Ohio or publish them here. Despite the fact that Roberts’s publication of his comments did not emanate from Ohio, those comments were received in Ohio. KRE submitted evidence that at least five Ohio residents had seen the comments posted by Roberts. In Fallang,
{¶ 42} Roberts posted his allegedly defamatory statements on the Internet, ostensibly for the entire world to see. How much of the world saw the comments is unknown; but we do know that at least five Ohioans saw Roberts’s statements. The comments were thus published in Ohio. Because Roberts’s allegedly defamatory statements were published in Ohio, his alleged tort was committed in Ohio, and he falls within the grasp of R.C. 2307.382(A)(3) and Civ.R. 4.3(A)(3).
{¶ 44} Thus, even if we assume that Roberts’s alleged tortious conduct did not take place within the territorial boundaries of Ohio, he nonetheless “might reasonably have expected that [KRE] would be injured thereby in this state.” R.C. 2307.382(A)(6). When defamatory statements regarding an Ohio plaintiff are made outside the state yet with the purpose of causing injury to the Ohio resident and there is a reasonable expectation that the purposefully inflicted injury will occur in Ohio, the requirements of R.C. 2307.382(A)(6) are satisfied. It is clear from the postings that Roberts’s statements were made with the purpose of injuring KRE. Therefore, the long-arm statute permits the exercise of personal jurisdiction over Roberts in Ohio.
{¶ 45} Ohio’s long-arm statute is not coterminous with due process. Goldstein,
{¶ 46} Personal jurisdiction can be either general or specific, depending upon the nature of the contacts that the defendant has with the forum state. Conti v. Pneumatic Prods. Corp. (C.A.6, 1992),
{¶ 47} Instead, KRE asserts that Ohio has specific jurisdiction over Roberts. Specific jurisdiction applies when “a State exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant’s contacts with the forum.” Helicopteros Nacionales de Colombia, S.A. v. Hall (1984),
{¶ 48} In Bird, the court held that specific jurisdiction “is permissible only if [a defendant’s] contacts with Ohio satisfy the three-part test that this court established in Southern Machine Company v. Mohasco Industries, Inc.,
{¶ 49} “ ‘First, the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state. Second, the cause of action must arise from the defendant’s activities there. Finally, the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable.’ ” Bird,
{¶ 50} In this case, we, too, employ the three-part test from S. Machine,
{¶ 51} The first S. Machine factor is whether the defendant purposefully availed himself of the privilege of acting in the forum state or causing a consequence in the forum state. “Purposeful availment” is present when the defendant’s contacts with the forum state “proximately result from actions by the defendant himself that create a ‘substantial connection’ with the forum State.” (Emphasis sic.) Burger King Corp. v. Rudzewicz (1985),
{¶ 52} This is a defamation case. The United States Supreme Court addressed purposeful availment in regard to jurisdiction in defamation cases in Calder v. Jones (1984),
{¶ 53} The defendants argued that California lacked personal jurisdiction over them because it was their publisher that was responsible for the circulation of the article in California, not they. The defendants analogized themselves to welders employed in Florida who worked on a boiler that subsequently exploded in California. They argued that although jurisdiction would be proper over the manufacturer, it should not be applied to welders, who have no control over and derive no direct benefit from their employer’s sales in another state.
{¶ 54} The court exploded the defendants’ boiler analogy, focusing on the targeted nature of their activity:
{¶ 55} “Whatever the status of their hypothetical welder, petitioners are not charged with mere untargeted negligence. Rather, their intentional, and allegedly tortious, actions were expressly aimed at California. Petitioner South wrote and petitioner Calder edited an article that they knew would have a potentially devastating impact upon respondent. And they knew that the brunt of that injury would be felt by respondent in the State in which she lives and works and in which the National Enquirer has its largest circulation. Under the circumstances, petitioners must ‘reasonably anticipate being haled into court there’ to answer for the truth of the statements made in their article. World-Wide Volkswagen Corp. v. Woodson,
{¶ 56} To rephrase the court’s conclusion in Calder in a question, should a company injured in Ohio need to go to Virginia to seek redress from a person who, though remaining in Virginia, knowingly caused injury in Ohio? Like the defendants in Calder, Roberts is not alleged to have engaged in untargeted negligence. Roberts’s Internet commentary reveals a blatant intent to harm KRE’s reputation. Roberts knew that KRE was an Ohio company. Roberts impugned the activities that KRE undertakes in Ohio. Roberts hoped that his commentary would have a devastating effect on KRE and that if there were fallout from his comments, the brunt of the harm would be suffered in Ohio.
{¶ 57} The Sixth Circuit Court of Appeals applied the Calder “effects” test narrowly in Reynolds v. Internatl. Amateur Athletic Fedn. (1994),
{¶ 58} The court held:
{¶ 59} “We find Calder distinguishable for several reasons. First, the press release concerned Reynolds’ activities in Monaco, not Ohio. Second, the source of the controversial report was the drug sample taken in Monaco and the laboratory testing in France. Third, Reynolds is an international athlete whose professional reputation is not centered in Ohio. Fourth, the defendant itself did not publish or circulate the report in Ohio; Ohio periodicals disseminated the report. Fifth, Ohio was not the ‘focal point’ of the press release. The fact that the IAAF could foresee that the report would be circulated and have an effect in Ohio is not, in itself, enough to create personal jurisdiction. World-Wide Volkswagen Corp.,
{¶ 60} The within case is much closer to Calder than it is to Reynolds. The distinguishing aspects in Reynolds are not at play here. Unlike the IAAF’s
{¶ 61} We note that neither Calder nor Reynolds involved Internet communication of the allegedly defamatory material. Two cases from the Sixth Circuit do involve defamation cases arising from Internet activity; in both cases, courts attempt to determine whether the case is closer to Calder or to Reynolds.
{¶ 62} In Cadle Co. v. Schlichtmann (C.A.6, 2005),
{¶ 63} In Oasis Corp.,
{¶ 64} “The facts of this case much more closely resemble Reynolds than Calder. First, Defendants claim on their site that a defective Oasis water cooler started a fire in Oklahoma, not Ohio. Second, Oasis is an international company whose reputation is not centered in Ohio. Third, Defendants’ site does not specifically target an Ohio audience. As in Reynolds, ‘[t]he fact that [Defendants] could foresee that [their proclamations would -be viewed] and have an effect in Ohio is not, in itself, enough to create personal jurisdiction.’ ” Id. at 624, quoting Reynolds,
{¶ 66} The Calder effects test is not beyond reproach. It has been called “the source of considerable uncertainty because Internet-based activity can ordinarily be said to cause effects in most jurisdictions.” Michael A. Geist, Is There a There? Toward Greater Certainty for Internet Jurisdiction (2001), 16 Berkeley Tech.L.J. 1345, 1381. We find this criticism to be invalid. The effects analysis necessitates conduct “calculated to cause injury” in a “focal point” where the “brunt” of the injury is experienced. Calder,
{¶ 67} Roberts argues that mere foreseeability by a nonresident defendant of the effects in the forum state is insufficient to justify the exercise of personal jurisdiction. Roberts’s reliance on this conclusion is inapposite because the effects of his conduct went well beyond foreseeability: Roberts intended the effects of his conduct to be felt in Ohio. His statements were communicated with the very purpose of having their consequences felt by KRE in Ohio. The contention that his statements were not made with the purpose of injuring some person in Ohio is unavailing. The postings themselves indicate his purpose of injuring Kauffman. For example, on his October 18, 2006 posting, Roberts stated: “What I loose [sic] in dollars I will make up in entertainment at their expence [sic].” On October 19, 2006, he wrote: “Again, this is not to get a resolution. I have a much bigger and dastardly plan than that and this is a good place to start.” Many of the postings name Kauffman directly and specifically mention Ohio.
{¶ 68} Here, Roberts not only knew that Ohio resident KRE could be the victim, he intended that it be the victim. The allegedly defamatory communications concerned KRE’s activities in Ohio. We are not dealing with a situation in which jurisdiction is premised on a single, isolated transaction. The posts detailed the transactions between Roberts and KRE. Moreover, the purchase of the engine block and subsequent transfers from Virginia to Ohio and back again served as the foundation from which this dispute arose. Roberts’s allegedly defamatory posts were predicated on his course of dealing with an Ohio resident corporation. At least five Ohio residents other than Kauffman read these postings. Finally, although KRE does business nationwide, its business reputa
{¶ 69} Here, KRE has made a prima facie showing that Roberts purposefully availed himself of Ohio law. When viewed in a light most favorable to KRE, the evidence shows that Roberts intentionally and tortiously sought to harm KRE’s reputation and negatively affect its contracts and business relationships. Therefore, KRE meets the first of the S. Machine factors.
{¶ 70} Having recognized Roberts’s contacts in Ohio, we now address the second S. Machine prong, which involves an analysis of whether KRE’s claims arise from those contacts. “If a defendant’s contacts with the forum state are related to the operative facts of the controversy, then an action will be deemed to have arisen from those contacts.” CompuServe, Inc. v. Patterson (C.A.6, 1996),
{¶ 71} Under the third and final prong of the S. Machine test, the acts of the nonresident defendant or consequences caused by the defendant must have a substantial connection with the forum state to make exercise of jurisdiction over the defendant reasonable. Wfiien “the first two elements of a prima facie case [are satisfied] then an inference arises that this third factor is also present.” CompuServe, Inc.,
{¶ 72} A number of factors are relevant to the reasonableness inquiry. A court first must consider Ohio’s interest in the controversy. In-Flight Devices Corp. v. Van Dusen Air, Inc. (C.A.6, 1972),
{¶ 73} We conclude that the exercise of jurisdiction over Roberts in this case is reasonable, satisfying the third part of the S. Machine test.
Conclusion
{¶ 74} Viewing the evidence in a light most favorable to KRE, we conclude that Ohio’s long-arm statute and the applicable rule of civil procedure confer jurisdiction over Roberts and that an exercise of jurisdiction of the trial court would not deprive this nonresident defendant of the right to due process of law under the Fourteenth Amendment to the United States Constitution. KRE has made a sufficient showing that Roberts caused tortious injury in this state by acts committed outside of Ohio with the purpose of injuring KRE. His communications specifically targeted a known Ohio resident, and the cause of action arises from the substantial connection Roberts made with Ohio through his course of dealing with KRE. We decline to allow a nonresident defendant to take advantage of the conveniences that modern technology affords and simultaneously be shielded from the consequences of his intentionally tortious conduct. Therefore, we affirm the judgment of the court of appeals.
Judgment affirmed.
Dissenting Opinion
dissenting.
{¶ 75} Respectfully, I dissent. Today, the majority has extended the personal jurisdiction of Ohio courts to cover any individual in any state who purchases a product from an Ohio company and posts a criticism of it on the Internet with the intent to damage the seller. This holding changes long-arm jurisdiction dramatically. In my view, because minimum contacts with Ohio are not present in all
{¶ 76} “[T]he constitutional touchstone [of long-arm jurisdiction] remains whether the defendant purposefully established ‘minimum contacts’ in the forum State.” Burger King Corp. v. Rudzewicz (1985),
{¶ 77} Relying primarily on Calder v. Jones (1984),
{¶ 78} But the facts of this case are easily distinguishable from those in Colder. Here, Roberts posted his comments on three general auto-racing websites and an auction site, none of which have any specific connection to Ohio or are more likely to be viewed by a resident of Ohio than by a resident of any other state. In fact, KRE could identify only five Ohio residents it believes actually viewed Roberts’s comments. In Colder, on the other hand, the National Enquirer sold approximately 600,000 copies of the offending article in the forum state. Calder,
{¶ 79} By merely posting to general websites, Roberts neither deliberately engaged in significant activities within Ohio nor purposefully directed his activities at an Ohio resident sufficiently to establish minimum contacts and satisfy due process — regardless of his intent.
{¶ 80} The foreseeability of causing injury to an Ohio company, whether the injury is intended or not, without directing activity at forum residents, is not sufficient to establish minimum contacts. See Burger King,
{¶ 81} Since this case is limited to the jurisdictional aspects of the litigation, the parties have not briefed, nor has the court addressed, the First Amendment rights of those who post comments on the Internet. The Supreme Court of the United States in Calder “rejected] the suggestion that First Amendment concerns enter into the jurisdictional analysis [and] declined * * * to grant special procedural protections to defendants in libel and defamation actions in addition to the constitutional protections embodied in the substantive laws.” Calder,
{¶ 82} Because Roberts’s conduct does not establish minimum contacts with Ohio sufficient to comport with due process, I would reverse the judgment of the court of appeals.
Notes
. The majority does not find sufficient contacts to confer jurisdiction based solely on the parties’ underlying transaction, nor should it. See Clark v. Connor (1998),