Shrader v. Biddinger

• Citation: 633 F.3d 1235
• Decision Date: 28 February 2011
• Docket Number: Nos. 10–7004,10–7015.,s. 10–7004
• Parties: Greg SHRADER, Plaintiff–Appellant,v.Al BIDDINGER; Earik Beann; William Bradstreet Stewart; Institute of Cosmological Economics; Sacred Science Institute; Wave 59 Technologies, Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

633 F.3d 1235

Greg SHRADER, Plaintiff–Appellant,
v.
Al BIDDINGER; Earik Beann; William Bradstreet Stewart; Institute of Cosmological Economics; Sacred Science Institute; Wave 59 Technologies, Defendants–Appellees.

Nos. 10–7004

10–7015.

United States Court of Appeals, Tenth Circuit.

Feb. 28, 2011.

[633 F.3d 1237]

Submitted on the briefs: ^*Greg Shrader, Pro Se.Robert D. Nelon, Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Oklahoma City, OK, and James E. Stewart, Omar Chaudhary, Butzel Long, Ann Arbor, MI, for Defendant–Appellee Al Biddinger.Scott A. Law, Conner & Winters, LLP, Oklahoma City, OK, for Defendants–Appellees Earik Beann and Wave 59 Technologies.Rory R. Wicks, Coast Law Group, LLP, Encinitas, CA, for Defendants–Appellees William Bradstreet Stewart, Sacred Science Institute and Institute of Cosmological Economics, Inc.Before HOLLOWAY, ANDERSON, and TACHA, Circuit Judges.HOLLOWAY, Circuit Judge.

Plaintiff Greg Shrader appeals from a series of orders culminating in a judgment dismissing this action in its entirety for lack of personal jurisdiction over any of the named defendants. We affirm for reasons explained below.

I. PLEADINGS AND DISTRICT COURT PROCEEDINGS

Mr. Shrader brought this tort action pro se, asserting claims for defamation, false-light invasion of privacy, intentional infliction of emotional distress, and civil conspiracy against three groups of defendants: (1) the Stewart defendants (William Bradstreet Stewart and his companies Sacred Science Institute and Institute of Cosmological Economics, Inc.); (2) the Beann defendants (Earik Beann and his company Wave59 Technologies International (Wave59)); and (3) defendant Al Biddinger. None of the defendants resides in Oklahoma, where the case was filed. Mr. Shrader lives and works in Oklahoma,

[633 F.3d 1238]

where he produces books and courses for market traders. Mr. Stewart partnered with him for a time, editing, publishing, and selling Mr. Shrader's materials through his internet-based companies. The two ceased doing business together after Mr. Stewart voiced concerns over the usefulness and originality of Mr. Shrader's most recent work. All of Mr. Shrader's tort claims derive from an email drafted by Mr. Stewart briefly explaining why the two parted ways. Mr. Shrader alleges that the email was defamatory and was intended to ruin his professional reputation. Mr. Stewart sent the email to a list of his customers. Mr. Biddinger then expanded its audience by posting it to a traders' forum on the Wave59 web site in response to an inquiry about Mr. Shrader's materials. Finally, the email remained accessible on the forum for some time as a result of the Beann defendants' failure to promptly remove it.

After most of the defendants (all save Wave59) had sought dismissal for lack of personal jurisdiction, Mr. Shrader moved to amend his complaint for a second time. The district court denied leave to amend on alternative grounds. First, the court noted Mr. Shrader's procedural noncompliance in failing to confer with opposing counsel to determine whether the motion would be contested. Second, the court concluded that further amendment of the complaint would be immaterial in that Mr. Shrader's response to the defendants' pending motions to dismiss would show whether he could re-frame his pleadings so as to forestall dismissal. If so, amendment could then be permitted; if not, amendment would be futile.

Several weeks later, the district court entered three separate orders that granted the pending motions to dismiss for lack of personal jurisdiction, and Mr. Shrader filed his first notice of appeal (Appeal No. 10–7004). The appeal was premature, however, as the claims against Wave59 remained pending. Shortly thereafter, Wave59 moved to dismiss for lack of personal jurisdiction, and the court granted its motion as well. Mr. Shrader sought reconsideration through a “Motion for Objection of Motions to Dismiss,” attaching some additional exhibits relating to the issue of personal jurisdiction. The court admitted the exhibits, but otherwise denied the motion. Mr. Shrader then filed his second notice of appeal (Appeal No. 10–7015), citing all of the dismissal orders, the order denying his motion to amend, and the order denying reconsideration.¹ This second, timely appeal subsumed all of the matters included in the first appeal. Thus, although the prematurity of the first appeal was cured by the later final disposition of the case, see, e.g., B. Willis, C.P.A., Inc. v. BNSF Ry. Corp., 531 F.3d 1282, 1295 (10th Cir.2008), we nevertheless dismiss the first appeal as redundant, see, e.g., Hutchinson v. Pfeil, 208 F.3d 1180, 1183 n. 5 (10th Cir.2000).²

[633 F.3d 1239]

II. PERSONAL JURISDICTION

A. General Principles

The plaintiff bears the burden of establishing personal jurisdiction, but where, as here, the issue is raised early on in litigation, based on pleadings (with attachments) and affidavits, that burden can be met by a prima facie showing. Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1069–70 (10th Cir.2008). We review the matter de novo, “taking as true all well-pled (that is, plausible, non-conclusory, and non-speculative) facts alleged in plaintiff['s] complaint.” Id. at 1070 (citation omitted). We also must resolve any factual disputes in the plaintiff's favor. Id.

Where, as in Oklahoma, the state long arm statute supports personal jurisdiction to the full extent constitutionally permitted, due process principles govern the inquiry. Intercon, Inc. v. Bell Atl. Internet Solutions, Inc., 205 F.3d 1244, 1247 (10th Cir.2000). “[T]o exercise jurisdiction in harmony with due process, defendants must have ‘minimum contacts' with the forum state, such that having to defend a lawsuit there would not ‘offend traditional notions of fair play and substantial justice.’ ” Dudnikov, 514 F.3d at 1070 (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). Such contacts may give rise to personal jurisdiction over a non-resident defendant either generally, for any lawsuit, or specifically, solely for lawsuits arising out of particular forum-related activities:

General jurisdiction is based on an out-of-state defendant's “continuous and systematic” contacts with the forum state, and does not require that the claim be related to those contacts. Specific jurisdiction, on the other hand, is premised on something of a quid pro quo: in exchange for “benefitting” from some purposive conduct directed at the forum state, a party is deemed to consent to the exercise of jurisdiction for claims related to those contacts.

Id. at 1078 (citation omitted).

In contrast to the single, overarching requirement of continuous and systematic contacts for general jurisdiction, the “minimum contacts” test for specific jurisdiction encompasses two distinct requirements: “first, that the out-of-state defendant must have ‘purposefully directed’ its activities at residents of the forum state, and second, that the plaintiff's injuries must ‘arise out of’ defendant's forum-related activities.” Id. at 1071 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). This court's most extensive discussion of specific jurisdiction, especially as to the “purposeful direction” requirement, is set out in Dudnikov, where we drew heavily on the Supreme Court's elaboration of this requirement in Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984).³ “Distilling Calder to its essence,” we delineated the following three salient factors that together indicate “purposeful direction”:

[633 F.3d 1240]

(a) an intentional action (writing, editing, and publishing the article), that was (b) expressly aimed at the forum state (the article was about a California resident and her activities in California; likewise it was drawn from California sources and widely distributed in that state), with (c) knowledge that the brunt of the injury would be felt in the forum state (defendants knew Ms. Jones was in California and that her career revolved around the entertainment industry there).Dudnikov, 514 F.3d at 1072. We also elaborated on the “arising out of” requirement, particularly its causal aspect, see id. at 1078–79.

Finally, even if the “purposeful direction” and “arising out of” conditions for specific jurisdiction are met, that is not the end of the matter. “[W]e must still inquire whether the exercise of personal jurisdiction would offend traditional notions of fair play and substantial justice.” Id. at 1080 (quotation omitted). But at that point, “it is incumbent on defendants to present a compelling case that the presence of some other considerations would render jurisdiction unreasonable,” id. (quotation omitted), and the defendants have made no effort in that regard here.

B. Personal Jurisdiction in the Internet Context

A number of circuits have addressed personal jurisdiction in the internet context, considering whether, when, and how such peculiarly non-territorial activities as web site hosting, internet posting, and mass emailing can constitute or give rise to contacts that properly support jurisdiction over the host, poster, or sender. The basic problem with relating such activities directly to the general principles developed pre-internet is that, in a sense, the internet operates “in” every state regardless of where the user is physically located, potentially rendering the territorial limits of personal jurisdiction meaningless. As the Fourth Circuit explained in an early effort to address the matter:

Applying the traditional due process principles governing a State's jurisdiction over persons outside of the State based on Internet activity requires some adaptation of those principles because the Internet is omnipresent—when a person places information on the Internet, he can communicate with persons in virtually every jurisdiction. If we were to conclude as a general principle that a...