Revell v. Lidov

• Decision Date: 31 December 2002
• Docket Number: No. 01-10521.,01-10521.
• Parties: Oliver "Buck" REVELL, Plaintiff-Appellant, v. Hart G.W. LIDOV, an individual; Board of Trustees of Columbia University in the City of New York, a foreign corporation (Columbia University); Columbia University School of Journalism, an agency and/or Department of Columbia University in the City of New York, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 467

317 F.3d 467

Oliver "Buck" REVELL, Plaintiff-Appellant, v. Hart G.W. LIDOV, an individual; Board of Trustees of Columbia University in the City of New York, a foreign corporation (Columbia University); Columbia University School of Journalism, an agency and/or Department of Columbia University in the City of New York, Defendants-Appellees.

No. 01-10521.

United States Court of Appeals, Fifth Circuit.

December 31, 2002.

Joe C. Tooley (argued), Rockwall, TX, for Revell.

Paul Christopher Watler (argued), Robert Brooks Gilbreath, John T. Gerhart, Jenkens & Gilchrist, Dallas, TX, for Lidov.

Charles L. Babcock (argued), David T. Moran, Kimberly Chastain Van Amburg, Jackson Walker, Dallas, TX, for Bd. of Trustees of Columbia University and Columbia University School of Journalism.

Appeal from the United States District Court for the Northern District of Texas.

Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Oliver "Buck" Revell sued Hart G.W. Lidov and Columbia University for defamation arising out of Lidov's authorship of an article that he posted on an internet bulletin board hosted by Columbia. The district court dismissed Revell's claims for lack of personal jurisdiction over both Lidov and Columbia. We affirm.

I

Hart G.W. Lidov, an Assistant Professor of Pathology and Neurology at the Harvard Medical School and Children's Hospital, wrote a lengthy article on the subject of the terrorist bombing of Pan Am Flight 103, which exploded over Lockerbie, Scotland in 1988. The article alleges that a broad politically motivated conspiracy among senior members of the Reagan Administration lay behind their wilful failure to stop the bombing despite clear advance warnings. Further, Lidov charged that the government proceeded to cover up its receipt of advance warning and repeatedly misled the public about the facts. Specifically, the article singles out Oliver "Buck" Revell, then Associate Deputy Director of the FBI, for severe criticism, accusing him of complicity in the conspiracy and coverup. The article further charges that Revell, knowing about the imminent terrorist attack, made certain his son, previously booked on Pan Am 103, took a different flight. At the time he wrote the article, Lidov had never been to Texas, except possibly to change planes, or conducted business there, and was apparently unaware that Revell then resided in Texas.

Lidov has also never been a student or faculty member of Columbia University, but he posted his article on a website maintained by its School of Journalism. In a bulletin board section of the website, users could post their own works and read the works of others. As a result, the article could be viewed by members of the public over the internet.

Revell, a resident of Texas, sued the Board of Trustees of Columbia University, whose principal offices are in New York City, and Lidov, who is a Massachusetts resident, in the Northern District of Texas. Revell claimed damage to his professional reputation in Texas and emotional distress arising out of the alleged defamation of the defendants, and sought several million dollars in damages. Both defendants moved to dismiss for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2). The district court granted the defendants' motions, and Revell now appeals.

II

A

Our question is whether the district court could properly exercise personal jurisdiction over Hart Lidov and Columbia University, an issue of law we review de novo.¹ The plaintiff bears the burden of establishing jurisdiction, but need only present prima facie evidence.² We must accept the plaintiff's "uncontroverted allegations, and resolve in [his] favor all conflicts between the facts contained in the parties' affidavits and other documentation."³ In considering a motion to dismiss for lack of personal jurisdiction a district court may consider "affidavits, interrogatories, depositions, oral testimony, or any combination of the recognized methods of discovery."⁴

A federal district court sitting in diversity may exercise personal jurisdiction over a foreign defendant if (1) the long-arm statute of the forum state creates personal jurisdiction over the defendant; and (2) the exercise of personal jurisdiction is consistent with the due process guarantees of the United States Constitution.⁵ Because Texas's long-arm statute reaches to the constitutional limits,⁶ we ask, therefore, if exercising personal jurisdiction over Lidov and Columbia would offend due process.

The Due Process Clause of the Fourteenth Amendment permits a court to exercise personal jurisdiction over a foreign defendant when (1) "that defendant has purposefully availed himself of the benefits and protections of the forum state by establishing `minimum contacts' with the forum state; and (2) the exercise of jurisdiction over that defendant does not offend `traditional notions of fair play and substantial justice.'"⁷ Sufficient minimum contacts will give rise to either specific or general jurisdiction.⁸ "General jurisdiction exists when a defendant's contacts with the forum state are unrelated to the cause of action but are `continuous and systematic.'"⁹ Specific jurisdiction arises when the defendant's contacts with the forum "arise from, or are directly related to, the cause of action."¹⁰

B

Answering the question of personal jurisdiction in this case brings these settled and familiar formulations to a new mode of communication across state lines. Revell first urges that the district court may assert general jurisdiction over Columbia because its website provides internet users the opportunity to subscribe to the Columbia Journalism Review, purchase advertising on the website or in the journal, and submit electronic applications for admission.¹¹

This circuit has drawn upon the approach of Zippo Manufacturing Co. v. Zippo Dot Com, Inc.¹² in determining whether the operation of an internet site can support the minimum contacts necessary for the exercise of personal jurisdiction.¹³ Zippo used a "sliding scale" to measure an internet site's connections to a forum state.¹⁴ A "passive" website, one that merely allows the owner to post information on the internet, is at one end of the scale.¹⁵ It will not be sufficient to establish personal jurisdiction.¹⁶ At the other end are sites whose owners engage in repeated online contacts with forum residents over the internet, and in these cases personal jurisdiction may be proper.¹⁷ In between are those sites with some interactive elements, through which a site allows for bilateral information exchange with its visitors. Here, we find more familiar terrain, requiring that we examine the extent of the interactivity and nature of the forum contacts.¹⁸

While we deployed this sliding scale in Mink v. AAAA Development LLC, it is not well adapted to the general jurisdiction inquiry, because even repeated contacts with forum residents by a foreign defendant may not constitute the requisite substantial, continuous and systematic contacts required for a finding of general jurisdiction — in other words, while it may be doing business with Texas, it is not doing business in Texas.¹⁹

Irrespective of the sliding scale, the question of general jurisdiction is not difficult here. Though the maintenance of a website is, in a sense, a continuous presence everywhere in the world, the cited contacts of Columbia with Texas are not in any way "substantial."²⁰

Columbia's contacts with Texas are in stark contrast to the facts of the Supreme Court's seminal case on general jurisdiction, Perkins v. Benguet Consolidated Mining Co.²¹ In Perkins, a Philippine corporation temporarily relocated to Ohio.²² The corporation's president resided in Ohio, the records of the corporation were kept in Ohio, director's meetings were held in Ohio, accounts were held in Ohio banks, and all key business decisions were made there.²³ Columbia's internet presence in Texas quite obviously falls far short of this standard.

Our conclusion also comports with the recent decision in Bird v. Parsons,²⁴ where the Sixth Circuit found Ohio courts lacked general jurisdiction over a non-resident business that registered domain names despite the fact that: (1) the defendant maintained a website open for commerce with Ohio residents and (2) over 4000 Ohio residents had in fact registered domain names with the defendant.²⁵ By contrast, Columbia, since it began keeping records, never received more than twenty internet subscriptions to the Columbia Journalism Review from Texas residents.²⁶

C

Turning to the issue of specific jurisdiction, the question is whether Revell has made out his prima facie case with respect to the defendants' contacts with Texas. Zippo's scale does more work with specific jurisdiction — the context in which it was originally conceived.²⁷

Revell urges that, given the uniqueness of defamation claims and their inherent ability to inflict injury in far-flung jurisdictions, we should abandon the imagery of Zippo. It is a bold but ultimately unpersuasive argument. Defamation has its unique features, but shares relevant characteristics with various business torts.²⁸ Nor is the Zippo scale, as has been suggested in tension with the "effects" test of Calder v. Jones²⁹ for intentional torts,³⁰ which we address in Part II.D.

For specific jurisdiction we look only to the contact out of which the cause of action arises³¹ — in this case the maintenance of the internet bulletin board. Since this defamation action does not arise out of the solicitation of subscriptions or applications by Columbia, those portions of the website need not be considered.

The district court concluded that the bulletin board was "Zippo-passive" and therefore could not create specific jurisdiction. The defendants insist that Columbia's bulletin board is indistinguishable from the website in Mink. In that case, we found the website would not support...