Kubyn v. Follett
| Decision Date | 05 August 2019 |
| Docket Number | NO. 2019-G-0194,2019-G-0194 |
| Citation | 141 N.E.3d 512,2019 Ohio 3152 |
| Parties | Stacey G. KUBYN, et al., Plaintiffs-Appellants, v. Tamara FOLLETT, Defendant-Appellee. |
| Court | Ohio Court of Appeals |
R. Russell Kubyn, Kubyn & Ghaster, LLP, 8373 Mentor Avenue, Mentor, OH 44060 (For Plaintiffs-Appellants).
L. Bryan Carr, Carr, Feneli & Carbone Co., L.P.A., 1392 S.O.M. Center Road, Mayfield Heights, OH 44124 (For Defendant-Appellee).
{¶1} Plaintiffs-appellants, Stacey G. Kubyn and R. Russell Kubyn, appeal the Judgment of the Geauga County Court of Common Pleas, granting defendant-appellee Tamara Follett's, Motion to Dismiss the Complaint for lack of personal jurisdiction. For the following reasons, we reverse the decision of the court below.
{¶2} On September 14, 2018, the Kubyns filed a Complaint for Money, Temporary Restraining Order, Injunctive Relief for Copyright Infringement, and Other Equitable Relief in the Geauga County Court of Common Pleas against Follett.
{¶3} On November 15, 2018, the Kubyns filed a First Amended Complaint for Compensatory and Punitive Damages, Injunctive Relief, and Other Equitable Relief for Defamation, Copyright Infringement, and Other Tortious Conduct. The Complaint identified the Kubyns as dog breeders doing business as Esquire Caucasian Mountain Shepherd Dogs USA in Geauga County, and Follett as a Canadian resident who breeds similar dogs doing business as ThunderHawk Caucasians. The Complaint was based on the following alleged conduct:
Defendant Follett has engaged in underhanded, illegal, unethical, fraudulent, harassing and otherwise improper behavior and activities including, but not limited to, posting on Facebook her desire for the death of Defendant [sic] Stacey G. Kubyn, and requesting other people to post that they too wished death to befall Defendant Stacey G. Kubyn; embedding keywords on pages of her website such as "Stacey Kubyn" and "Khan" so that internet search engines will direct people to her website for her own financial gains and personal vendetta, ranting defamatory statements against the Plaintiffs, calling the Plaintiffs foul names, and using the Plaintiffs' aforementioned pictures and other media falsely, and fraudulently claiming right of publication thereof.
{¶4} The Amended Complaint further alleged jurisdiction over Follett existed pursuant to Ohio's long-arm statute "as she published and/or aided and/or abetted in the publishing of defamatory statements on the internet directed at the Plaintiffs, Ohio residents; and other Ohio residents have seen and/or could see the defamatory statements, * * * as such acts constitute causing tortious injuries by acts in the State of Ohio * * *."1
{¶5} On November 23, 2018, Follett filed a Motion to Dismiss, pursuant to Civil Rule 12(B)(2), on the grounds that "personal jurisdiction is lacking."
{¶6} On December 21, 2018, the Kubyns filed a Brief in Opposition to Motion to Dismiss.
{¶7} On January 17, 2019, Follett filed a Reply to Plaintiffs' Brief in Opposition to Motion to Dismiss.
{¶8} On February 4, 2019, the trial court granted the Motion to Dismiss, ruling that "Plaintiffs have not adequately established sufficient minimum contacts between Geauga County and the Defendant to invoke this Court's jurisdiction over the Canadian Defendant (regardless of whether the Defendant is a U.S. citizen or not)."
{¶9} On February 5, 2019, the Kubyns filed a Notice of Appeal. On appeal, they raise the following assignment of error:
{¶10}
{¶11} The issue before this court is whether the trial court may exercise personal jurisdiction over Follett.
{¶12} "Personal jurisdiction is a question of law that appellate courts review de novo." Kauffman Racing Equip., L.L.C. v. Roberts , 126 Ohio St.3d 81, 2010-Ohio-2551, 930 N.E.2d 784, ¶ 27. When a motion to dismiss for "lack of jurisdiction over the person" pursuant to Civil Rule 12(B)(2) is decided upon "written submissions and without an evidentiary hearing," the plaintiff need "only [make] a prima facie showing of jurisdiction." Id. ; Fraley v. Estate of Oeding , 138 Ohio St.3d 250, 2014-Ohio-452, 6 N.E.3d 9, ¶ 11. In determining whether this burden is met, the trial court is "required to view allegations in the pleadings and the documentary evidence in a light most favorable to the plaintiffs, resolving all reasonable competing inferences in their favor." Goldstein v. Christiansen , 70 Ohio St.3d 232, 236, 638 N.E.2d 541 (1994).
{¶13} "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." Kauffman Racing at ¶ 28.
{¶14} Ohio's long-arm statute provides: "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 * * * [c]ausing 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." R.C. 2307.382(A)(6). Similarly, Ohio's Civil Rules provide: "Service of process may be made outside of this state * * * upon a person who * * * has caused an event to occur out of which the claim that is the subject of the complaint arose, from the person's * * * [c]ausing 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." Civ.R. 4.3(A)(9).
{¶15} " R.C. 2307.382(A)(6) and Civ.R. 4.3(A)(9) permit a court to exercise personal jurisdiction over a nonresident defendant and provide for service of process to effectuate that jurisdiction if the cause of action arises from a tortious act committed outside Ohio with the purpose of injuring persons, when the nonresident defendant might reasonably have expected that some person would be injured thereby in Ohio." Clark v. Connor , 82 Ohio St.3d 309, 313, 695 N.E.2d 751 (1998).
{¶16} The Amended Complaint alleges a variety of tortious conduct committed by Follett outside of Ohio but with the purpose of injuring the Kubyns and their business interests so that she might reasonably expect that they would be so injured. This conduct includes claims of misappropriation of proprietary and intellectual interests, the use of their personas for commercial purposes without authorization, interference with business contracts and relationships, trade infringement and unfair competition, fraud and misrepresentation, invasion of privacy (false light), and defamation.
{¶17} An affidavit executed by Stacey Kubyn and attached to the Kubyns' Brief in Opposition provides the following details: The Kubyns own and operate the website "http://www.esquirecaucasians.com" and maintain a Facebook account, the content of which is protected by copyright law. Follett is a self-proclaimed competitor and adversary of the Kubyns in the breeding of Caucasian Shepherds. Although a resident of Canada, Follett markets her dogs to purchasers in Ohio. Follett has used copyrighted images of the Kubyns and their stud dog, Kahn, which were created in Geauga County. She has falsely claimed ownership of the images. She has utilized social media to wage a defamatory campaign against the Kubyns personally and against their breeding business.2 These statements have been published to thousands of people, including Ohio residents. She has used keywords such as "Stacey Kubyn" and the names of Ohio incorporated dog clubs to which Stacey belongs to direct people to her own website. She has stated that her "active goal" is to interfere with the Kubyns' Ohio business.
{¶18} Such claims have been held by numerous courts to establish a basis for the exercise of jurisdiction pursuant to R.C. 2307.382(A)(6) and Civ.R. 4.3(A)(9). See Kauffman Racing at ¶ 44 (); MJM Holdings Inc. v. Sims , 9th Dist., 2019-Ohio-514, 130 N.E.3d 1093, ¶ 29 () (citation omitted); Maui Toys, Inc. v. Brown , 7th Dist. Mahoning No. 12 MA 172, 2014-Ohio-583, 2014 WL 644699, ¶ 55 ().
{¶19} Federal district court decisions likewise provide considerable support for the exercise of personal jurisdiction based on the Kubyns' claims. "Because district courts take a ‘broad approach’ in applying (A)(6), out-of-state actions that give rise to tortious injuries for purposes of the statute are legion." Haley v. Akron , N.D. Ohio No. 5:13-cv-00232, 2014 WL 804761, *11 () (cases cited); Mumaw v. Thistledown Racetrack LLC , N.D. Ohio No. 1:13CV1048, 2015 WL...
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