Blessing v. Cable News Network, Inc.

• Decision Date: 07 October 2020
• Docket Number: CIVIL ACTION NO. 2:20-CV-0015 (WOB-CJS)
• Parties: TARA BLESSING, ET AL. PLAINTIFFS, v. CABLE NEWS NETWORK, INC., and BAKARI SELLERS DEFENDANTS.
• Court: U.S. District Court — Eastern District of Kentucky

TARA BLESSING, ET AL. PLAINTIFFS, v. CABLE NEWS NETWORK, INC., and BAKARI SELLERS DEFENDANTS.

CIVIL ACTION NO. 2:20-CV-0015 (WOB-CJS)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY NORTHERN DIVISION AT COVINGTON

October 7, 2020

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Bakari Sellers' motion to dismiss (Doc. 25), Plaintiffs' response thereto (Doc. 30), and Sellers' reply (Doc. 32).

The Court has carefully reviewed this matter and concludes that oral argument is unnecessary. It therefore issues the following Memorandum Opinion and Order.

Factual and Procedural Background

This is the third lawsuit filed by a group of students from Covington Catholic High School ("CCH"). The instant matter involves only Plaintiffs' claims against Bakari Sellers, a citizen of South Carolina. (Doc. 1 at ¶ 3).

Plaintiffs are Kentucky citizens who attend CCH. (Id. at ¶ 2). Plaintiffs were present at the Lincoln Memorial in Washington, D.C. on January 18, 2019, where they participated in the annual "March for Life". (Id. at ¶ 5). On that date, the students were part of "the incident" wherein they encountered Native American Nathan Phillips and became the subject of public scrutiny. (Id. at ¶ 6).

"At 7:09 a.m. on January 19, 2019, Defendant CNN, through its agent analyst Defendant Sellers, harassed, threatened, and menaced the Plaintiffs stating, in reference to their involvement in the Lincoln Memorial incident, that Nicholas Sandmann was a 'deplorable' and that he and his fellow CCH students, including each of the Plaintiffs, deserved to 'be punched in the face.'"¹ (Id. at ¶ 9). Sellers' tweet led to several of his followers making disparaging remarks, like "Can a forehead be considered a drum in such situations?" (Doc 1-1).

In response to these tweets, Plaintiffs brought suit against CNN and Sellers, alleging the following causes of action: (1) civil harassment under KRS § 525.070; (2) civil harassing communications under KRS § 525.080; (3) civil threatening under KRS § 508.080; (4) civil menacing under KRS § 508.050; (5) defamation; (6) invasion of privacy; and (7) aiding and abetting. (Id. at 7-11).

Sellers filed a motion to dismiss, arguing that the Court lacks personal jurisdiction over him concerning Plaintiffs' claims, and alternatively, Plaintiffs fail to state a claim on First Amendment grounds. (Doc. 25).

Analysis

Plaintiffs concede that the facts surrounding the incident at the Lincoln Memorial and their allegations of Kentucky's "true threat" criminal statutes mirror two prior cases already decided by this Court: Doe v. Griffin, Cov. Civil Case No. 2:19-cv-126, 2020 WL 1816139 (E.D. Ky. Apr. 9, 2020); and Blessing v. Chandrasekhar, MD, FACS, Cov. Civil Case No. 2:20-cv-16, 2020 WL 3477021 (E.D. Ky. June 25, 2020). (Doc. 30 at 1).

In Griffin, this Court found it did not have personal jurisdiction over the defendant under either the Kentucky long-arm statute or the due process clause of the United States Constitution because the alleged "true threat" comments on Twitter did not constitute a tortious act in Kentucky (because the statements were made out-of-state in California), and plaintiff's injury alone cannot establish minimum contacts for specific personal jurisdiction. 2020 WL 1816139, at *3-6.

Drawing from the Griffin opinion, in Chandrasekhar, this Court found (for the same reasons) that the plaintiffs could not meet the standards set forth in Kentucky's long-arm statute or under the federal due process clause. 2020 WL 3477021, at *2-5. These cases are pending before the Sixth Circuit.

The following analysis draws from these previous opinions to resolve this matter. The issue is whether there is a distinction to establish personal jurisdiction for the Court to be able toconsider whether Plaintiffs state facially plausible claims. Because Plaintiffs proffer no factual or legal distinctions to carry their burden of establishing personal jurisdiction, Sellers' motion to dismiss must also be granted.

A. Sellers' Motion to Dismiss Must be Granted for Lack of Personal Jurisdiction Via Kentucky's Long-Arm Statute and Federal Due Process

Plaintiffs ask the Court to adjudicate the claims against Sellers by exercising specific personal jurisdiction over him. (Doc. 30 at 10). "A federal court sitting in diversity may exercise personal jurisdiction over an out-of-state defendant only to the extent that a court of the forum state could do so." Kerry Steel, Inc. v. Paragon Indus., Inc., 106 F.3d 147, 148 (6th Cir. 1997).

To exercise specific personal jurisdiction, Kentucky law dictates a two-step process, wherein the Court must first consider Kentucky's long-arm statute, to determine whether "the cause of action arises from conduct or activity of the defendant that fits into one of the statute's enumerated categories." Caesars Riverboat Casino, LLC v. Beach, 336 S.W.3d 51, 57 (Ky. 2011). If the defendant's alleged conduct does not fall within any enumerated category listed in the statute, then he is not subject to personal jurisdiction in Kentucky. Id. If the conduct is within an enumerated category, then the court must assess whether "exercising personal jurisdiction over the non-resident defendant offends his federal due process rights." Id. But the scope ofKentucky's long-arm statute inquiry is narrower than the inquiry to federal due process. Id. at 55-57.

1. Kentucky's Long-Arm Statute

First, Sellers argues that Plaintiffs' cannot establish any of the nine subparts of the Kentucky long-arm statute. (Doc. 25 at 4). Although Plaintiffs' complaint does not specify which subsection of the long-arm statute they are proceeding under,² their response states that they are relying on KRS § 454.210(2)(a)(3), which provides for personal jurisdiction over a defendant when a plaintiff's claim arises out of the defendant's "tortious injury by an act or omission in this Commonwealth". (Doc. 30 at 10, n. 42) (emphasis added). Thus, the question becomes what tortious act or omission did Sellers commit "in Kentucky" to satisfy this subsection of Kentucky's long-arm statute?

Plaintiffs argue that the tweets constituted an act committed in Kentucky under its "true threat" criminal statutes (rendered civilly actionable under KRS § 446.070) because the "violation of Kentucky's criminal statutes was an unlawful action that occurred in Kentucky, and not only a harmful consequence that occurred in Kentucky" no matter where the tweet comes from. (Id. at 10). Plaintiffs do not allege, however, that any of the tweets were made in Kentucky.

This Court has already found that Kentucky law is contrary to this position. In short, "Kentucky courts routinely find that a defendant must be present in the Commonwealth when he starts an action that causes a tort in order for section 454.210(2)(a)(3) to apply." Crum v. Estate of Mayberry, Civil No. 14-84-ART, 2014 WL 7012122, at *5 (E.D. Ky. Dec. 11, 2014).³ As the Court noted in Crum, the Kentucky Court of Appeals held in Pierce v. Serafin, "that a defendant did not commit an act in the Commonwealth when he sent a letter from outside the state that contained statements that caused injury in Kentucky". 787 S.W.2d 705, 706 (Ky. Ct. App. 1990). Instead, the letter merely caused a consequence, which did not fall under the plain language of KRS § 454.210(2)(a)(3). Id.

This reasoning is routinely employed by federal courts applying the Kentucky long-arm statute. See Management Registry Inc. v. Cloud Consulting Partners, Inc., Civil Action No. 3:19-cv-00340, at *4 (W.D. Ky. Sept. 18, 2019) ("Since the Kentucky Supreme Court's decision in Caesar Riverboat Casino, LLC v. Beach, several cases have rejected the argument that an out-of-state defendant commits an 'act or omission in this Commonwealth' by sending a tortious communication into Kentucky."); My Retirement Account Servs. v. Alternative IRA Servs., LLC, Civil Action No.5:19-cv-122, 2019 WL 5298718, at *4 (W.D. Ky. Oct. 17, 2019) (finding no personal jurisdiction under KRS § 454.210(a)(2)(3) where plaintiffs alleged that the actions of California defendants were directed at, and caused harm in, Kentucky); Perkins v. Bennett, Civil Action No. 3:13-cv-695, 2013 WL 6002761, at *6-7 (W.D. Ky. Nov. 12, 2013) (holding that out-of-state defendants did not commit an act within Kentucky where the alleged tortious act of fraud and misrepresentation were committed via telephone and email from South Carolina); Barker v. Collins, Civil Action No. 3:12-cv-372, 2013 WL 3790904, at *5 (W.D. Ky. July 19, 2013) (finding that plaintiffs' claims of "extortion by telephone" were not "acts" in Kentucky that could trigger section (2)(a)(3)).

Plaintiffs try to distinguish this authority by arguing that true threat communications are not the same as out-of-state communications such as private letters, emails, or fraudulent withdrawals from out-of-state ATMs because the tweets violated Kentucky criminal and harassment statutes by instilling fear in the Plaintiffs when they read the tweets in Kentucky. (Doc. 30 at 10-11). However, consistent with this Court's holding in Griffin and Chandrasekhar, Plaintiffs' argument is misplaced.

To start, Plaintiffs' reliance on the criminal "true threat" cases do not address the question of whether a forum has personal jurisdiction to hold a defendant civilly liable because the cases consider what type of threats fall within the ambit of certainfederal criminal statutes. United States v. Alkhabaz, 104 F.3d 1492, 1496 (6th Cir. 1997) ("Applying our interpretation of the statute to the facts before us, we conclude that the communications between Baker and Gonda do not constitute 'communication[s] containing a threat' under Section 876(c)"); United States v. Freeman, 176 F.3d 575, 578 (1st Cir. 1999) (same); United States v. Landham, 251 F.3d 1072, 1080 (6th Cir. 2001) (same); United States v. Bowker, 372 F.3d 365 (6th Cir. 2004) (prosecution for violation of federal telecommunications law for using telephone without...