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Answer-to-Question-_ 1_
Personal Jurisdiction Intro
Personal jurisdiction is about the power of the court over a particular defendant.
The court "can't touch this" when jurisdiction is not proper. This power and its limitations
stem from the Due Process Clause and the Full Faith and Credit Clause of the
Constitution ( 14th and 5th Amendments and Article IV). The first step of any
jurisdictional analysis is to check the statutory requirements for exercising jurisdiction.
Here, we are told that the long are statute is coterminous with jurisdiction in the state. We
can also assume that the defendant was given a fair opportunity to be heard (Fuentes) and
that they were given proper notice (Mullane). We know tum to whether there is general
and/or specific jurisdiction over the Defendants in the State of Florida.
General Jurisdiction
First, we will test whether there is general jurisdiction in Florida over the
Defendants. General jurisdiction occurs automatically over an individual or corporation
in their domicile (Milliken). For an individual, domicile means where you are physically
present and have an intent to remain (Hawkins). A corporation has two domiciles - its
principal place of business and where it is incorporated (Daimler). A corporation can also
be subject to jurisdicton when it has continuous and systematic contacts with the state
that are so substantial that they are "at home" in that state to where it is fair to subject
them to general jurisdiction (Goodyear). Courts examine whether the company has sales
in the state, pays taxes, adverties, takes advantage of the benefits in the state, has offices,
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or owns property amongst a myriad of factors when determinign continuous and
systematic contact (International Shoe). For Defendant Ben Deoitte, he is domiciled in
New York and therefore there is no general jurisdiction over him in Florida. Our main
focus will be on Defendant NY-Deep Feed. The company has many continuous and.
systematic contacts with the state. Its Editor-in-Chief, fellow Defendant Deoditte, has a
vacation home in the state. The company routinely engages in news-gathering efforts in
Florida when issues arise. It regularly sends its reporters, including Deoitte, to Florida for
work based purposes. This past year, this occurred on a monthly basis which one could
say is systemtatic contact. It also publishes many articles concerning Florida-,centric
topics. Defendants also create social media advertising for Florida advertising and derive
significant revenues from Florida-based advertising clients. 15% of the subscribers on its
website are from Florida and pay a fee to access its articles which is more revenue the
company derives from the state. On the contrary, the company has 14 offices, none of
which are in Florida. It also has no employees in Florida permanently. It also reports
stories that are not related to Florida, and it is not Florida-centric in its overall reporting.
It also creates social media advertising for an derives significant revenues from many of
the other states in the United States. Compared to a case like Perkins in which a company
was found to be subject in Ohio based on continuous and systemtic conduct such as
maintaining an office, conducting personal and company affairs, keeping office files of
the company there, having director's meetings, banking, and purchasing machinery in the
state, with its President and and GM making business decisions in the state, the facts at
hand do appear to give a case for general jurisdiction. On balance, I think there is a slight
favor to find that NY-Deep State can be subject to general jurisdiction in Florida. But it is
important to note that general jurisdiction is quite difficult to find and courts are reluctant
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to grant it. We thus move on to specific jurisdiction.
Specific Jurisdiction
The old standard of specific jurisdiction was Pennoyer but that has been replaced
by the tests developed in International Shoe. We have moved from "is it there" to "is it
fair?" The Shoe test is based on three things: minimum contacts, fairness, and relatedness.
This three part test has evolved considerably into a multi-facor test courts use to
determine specific jurisdiction. Courts can also "tag" someone for jurisdiction when they
are physically present in a state (Burnham) or have jurisdiction over someone who is
driving in the state and a cause of action comes from such driving (Hess). Here, because
we are not dealing-with "tag" jurisdiction or driving, we will go through the Shoe test.
Minimum Contacts
For minimium contacts, analysis includes whether the Defendants have created
sufficient minimum contracts with Florida by purposefully availing themselves to the
benefit of the the state, by targeting the state through solicitation, advertising, or business
transactions, and whether the defendant could know or should have reasonably foreseen
being hailed into court in Florida. Courts also look at whether the Defendants have
intended to submit to the power of the state. Here, Defendants ran a website that derived
revenue and at least implictly targeted Florida. 15% of its paid subscribers were from
Florida, and there is no denial that the Defendants knew this because an address was
necessary for registration. The company receives money from Florida and advertises in
Florida. Its website reaches Florida residents, and it knows that Florida residents interacts
with the website. And while the Plaintiffs' incorporation or affiliated with Florida was not
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the main focus of the Article that gave rise to the action, the Defendants acknowledge that
PopWeb is incorporated in Florida. However, while the Defendant's website seems to
show most of their minimum contacts with the state, the website terms and conditions
included clause that any claims or disputes rising from under this membership should be
litigated under New York law. This is similar to the facts in Burger King in which a
jurisdiction was found over two Michigan franchisees whose contract with Burger King
included such language saying disputes would be litigated in Florida. However, unlike
Burger King, the plaintiffs here did not seek out an agreement with the defendants as
they were not subscribers, there was no training in Florda, and no long term K between
the parties.
The main tests we will use for minimum contacts in this case is the Zippo sliding
scale test because this occurs over the internet, as well as the Calder Brunt Test. The
Zippo test gauges whether the website of a defendant to an action is so highly
commercially interactive with conduct towards the state to warrant jurisdiction. At the
other end of the scale is a passive website that simply posts information, and jurisdiction
is not likely to be found. Here, we have an interactive website that includes Florida
members. It's international and members can comment. You also must make payments to
be a member with commenting rights. On the other hand, only subscribers can comment
which limits the interactivity of the platform. The payment is also made on a third party
payment site and not on the site itself. And while 15% of subscribers are from Florida,
85% are not and the website is known to be international with no particular focus on the
state. On balance, I think this website leans toward the "interactive" side of the scale and
gives reason for jurisdiction.
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The Calder test is used when we are dealing with intentional torts and asks
whether the D's actions were itnentional, whether they were expressly aimed on the
forum state, and whether the actions caused harm to the plaintiff, the brunt of which were
suffered in the forum and the defendant knew it was likely to be suffered in the forum
state. Arguments on the side of the plaintiff for this test would point to this clearly being
an intentional tort of defamation of character that the defendants aimed at the state of
Florida through its website. The defendants knew that the harm would be felt in Florida
because it knew that Pop Web was incorporated there. It also was almost certainly aware
of the viral video made by a Florida resident about Pop Web which named it as a Florida
corporation and received millions of views. Conversely, the defendants could argue that
they saw the Plaintiffs as european businesses, with the focus of this story being about
Russia and not Florida or the Plaintiffs themselves. And while they do business with
Florida residents, they are an international company and there was no real intent to harm
Florida residents specifically. The viral video was also shared after the Article was posted
which led to the cause of action.
Now that we have discussed minimum contacts, we move on to Fair Play and
Substanstial Justice
Fair Plav and Substantial Justice
The courts look at five factors to gauge the fairness of specific jurisdiction,and these must
be analyzed in the context of the case - whether there are savvy business people on both
sides, whether there might be a David/Goliath issue, or whether there is unequal
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bargaining power on each side. Here, it is not obvious, but it seems that business savvy
people existed on both sides of two international businesses with multiple offices, and
likely a decent amount of money. The five FP&SJ factors are as follows:
Burden on Defendant
It is likely not a huge burden on the Defendant to stand trial in Florida. It frequently sends
employees to the State, it's an international business with multiple offices and plenty of
money, and it clearly has the means to travel to Florida to hear a suit. You could make the
counter argument that it sends its employees to Florida to earn money, but I think that
argument is weak when looking at the business context.
Forum State's Interest
This issue seems iffy. One could understand why Florida would have an interest to "take
care of their own" and protect a Plaintiff who is incorporated in the State. But PopWeb is
not the only Plaintiff, and there is not much evidence it does a ton of business in Florida
and would be need to be protected by the State.
Plaintiffs Interest in Convenient Forum
Here, it seems that the Plaintiff clearly wants to litigate its case in Florida for one reasn or
another. We allow Plaintiffs to choose the forum, and if it wants to bring trial in a Florida
state court it has every right to do so. However, the Defendant will likely call this an
arbitrary location that poses no true need for the Plaintiff. It could likely just b'e done as
an inconvenience to the defendant with no real interest in the forum of Florida.
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Efficient Result of Controveries
Perhaps it can be argued that the most efficient result will occur in Florida court, but I
think this argument is weak. None of the evidence obtained really needs to come from
Florida. And while we do not know the exact conveniences and inconveniences for each
party to litigate in the state, there are no facts which imply that the interstate judicial
system's interest in efficiency will be substantially helped by a trial in Florida.
Furthering Substantive Social Policies
Again, it is hard to see how a shared interest of several states would desire a Florida court
to hear this case. The Plaintiffs could argue that it is the correct social policy to allow it to
choose the forum and litigate where PopWeb is incorporated, but I think this is a weaker
argument in terms of fair play because substantive social policies with two international
companies can be furthered regardless of the forum.
Overall, I think given the international stature and assumed wealth of both defendants
that fair play and substantial justice is a weaker argument for the Plaintiffs.
Cause of Action Related
Our final test is whether the contacts and activities within Florida are connected to and
not entirely distinct from the lawsuit. We must see whether the suit arose from activities
within the state. There can be a "tight" nexus when the activities are the proximate cause
of the aciton, or there can be a a "looser" nexus when the activities are a "but for" cause
of the action. Here, I think we are looking at a slighly looser nexus. While the Defendants
have a lot of contacts with the state of Florida through its website, these contacts did not
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necessarily give rise to the Article or the eventual tort of defamation. The specific story at
issue was in fact posted on the website with Florida subscribers, but the Defendants assert
that the story primarily concerned Russia and did not really have anything to do with
Florida. However, it can be said that "but for" the website in which the Article was
posted, this cause of action would have never occurred. Additionally, the viral video
which likely harmed PopWeb would also not have been posted if not for the website in
which the bulk of the Defendants contacts took place with Florida.
Conclusion
On balance, I believe that there are sufficient minimum contacts related to the cause of
action to warrant specific jurisdiction in Florida. W hile "fairness" does not push as a
thumb on the scale in favor of the Plaintiffs as much as it could, fairness is less important
when the cause of action and minimum contacts are sufficiently related. Specifically
under the Calder and Zippo tests, I think the cause of action arose from the Defendants'
contacts with the state of Florda. I even believe there may be enough continuous and
systematic contacts for general jurisdiction, but that is typically not granted by the court
and should not be relied upon by the Plaintiffs.
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Answer-to-Question- 2
Subject Matter Jurisdiction
Subject matter jurisdiction is extremely important because courts really "can't touch this"
when they do not have the power over a certain type of case (28 USC 1331). The federal
courts are courts of limited jurisdiction. This is about federalism, separation of powers,
and respecting Congress. To have jurisdiction, the case (1) be enumerated under Article
III, section 2. of the Constitution; and (2) must fulfill the requirements set forth by statutes
that confer jurisdiction. The two common bases of subject matter jurisdiction are federal
question jurisdiction and diversity jurisdiction.
Removal
Because the Defendants have filed the removal notice within 30 days as requires by 28
USC 1446(b ), we tum to whether the motion meets the requirements for removal. Under
28 USC 1441, a defendant has the opportunity to move a case from state court to federal
court. A defendant may do this to protect against local bias, or for federal question cases,
to allow the claim to be litigated in its "natural" forum. A defendant can only remove a
case if the entire case could have originally been brought in federal court. To have
requisite authority, a federal court must have both personal jurisdiction and subject matter
jursdiction over the kind of case that is under question. Exercising subject matter
jurisdiction requires that the claim either concern a federal question, or there is diversity
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of citizenship of the parties and the claism exceed $75,000. If the basis for removal is
diversity jurisdiction, which is the case here, neither defendant can remove if any of the
defendants are citizens of the state in which the action is brought. Here, because neither
defendants are citizens of Florida, removal under diveristy is proper.
Federal Question
I will quickly address that the "elevator" that allows an action to go straight to federal
court under USC 1331. It is not proper here. District courts have the power to hear cases
that "arise" under federal law, and defamation is not one of those cases. The defendants
seek to remove the case based on diversity.
Diversity Jurisdiction
When there is complete diversity of citizenship on both sdes of the case (Strawbridge)
and the amount in controversy exceeds $75,000 subject matter jurisdiction (and thus
removal in this case) is proper (the "stairs to get to federal court). Citizenship is where an
individual or corporation is domiciled. An individual can be domiciled in one place, and
this is determined by their physical presence in a state and their intent to remain
(Hawkins). A corporation has two domiciles - where they are incorporated and their
principal place of business.
Here, the amount in controversy should well exceed $75,000. While we only know that
the original filing in state alleged over $15,000 in damages, based on the Plaintiffs'
contentions that they suffered "millions in damages" due to the defamation of the
Defendants, it is almost certain that the action meet the amount in controversy
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requirement.
Regarding diversity on both sides, here we have with 3 plaintiffs: Pankin, a citizen of
Russia, PopWeb, incorporated in Florida with its Principal Place of Business in Texas,
and PPP Holding, who is domiciled in Luxembourg. The Defendants are NY Deep Feed,
a Delware Incorporation with its Principal Place of Business in New York, and Deoitte, a
man domiciled in New York. It appears on the face that complete diversity exists on the
face to warrant removal.
An argument might be made that because the Defendants run an international business, its
principal place of business might be in a country in which the Plaintiffs are domiciled.
However, despite having 14 offices, none of them are in Luxembourg or Russia, which
means that would not ruin diversity with PPP Holding or Pankin respectively. None of the
offices are in Texas or Florida either, which means that diversity is not ruined with
PopWeb either.
Based on the Hertz case and test it also seems that the Defendant's company is in fact
domiciled in New York. Its Editor-in-Chief lives there, and he made the decisions to
publish the article while in New York. Because a company's principal place of business is
where its executive decisions are made, it would imply that New York might be the
proper "principal place of business" for an international company.
T he other assertion that can be made to ruin diversity jurisdiction is if PopWeb is in fact
an international company rather than an American company. Since PopWeb is the only
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Plaintiff with a domicile in the United States, if it were deemed domiciled internationally
it would ruin diversity because there needs to be an American citizen on the side of the
Plaintiffs to warrant jurisdiction. The Defendants have made some assertions that
Pop Web has no presence in Florida and that it's just an address. But the arguments for an
actual presence in Florida seem apparent. The Defendants do not challenge the fact that it
is incorporated in Florida. PopWeb also has been continuously registered as a corporation
in Florida since 2009, and it has maintained one or more physical locations in Florida,
maintains a Florida telephone number, engages Florida-based personnel, and files tax
returns in Florida. All of this points to a proper Florida domicile.
On balance, I do not think the case should be remanded to state court and that removal
was proper under diversity jurisdiction. Assuming the amount in controversy exceeds
$75,000 it appears as though there is diversity on both sides of the case to justify
diversity jurisdiction.
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Answer-to-Question- 3
Regarding the Plaintiffs' motion to remand, I do not think this was proper in terms of time
or substance. Regarding substance, it does not appear as though there is a reason for
remand because the diversity requirements for subejct matter jurisdiction have been met.
The plaintiffs will not be able to remand the case because jurisdiction is likely proper.
Under FRCP 1, the Plaintiffs should not be filing a motion that hinders the just, speedy,
and inexpensive determination of the proceeding. Here, having filed the motion to
remand over 30 days after the case was removed, it appears as though the Plaintiffs'
motion does just that. If the the court allowed removal of the case to federal court, there
is likely no substantive reason for the Plaintiffs to make this motion now except to delay
the judicial process and harass the Defendants. While they could argue that this motion
was done in good faith, it does not make sense for them to make a motion on an issue
already decided. This is not a matter of transfer, or forum non conveniens, this is a matter
of a constitutional right of the defendants that the Plaintiffs counsel ought to be aware of.
While it may be harsh, I don't think it would be entirely out of line for the judge to
impose Rule 11 sanctions on the Plaintiffs' counsel. Under 1 l(b) an attorney certifies that
"the claims, defenses, or other legal contentions are warranted by existing law" and in
this case, it does not seem reasonable that Plaintiffs' counsel could reasonably assert that
its motion meets this description.
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There may be another issue of timing by the Plaintiffs, though this was more to their
detriment that anything else. It appears as though the Plaintiffs missed an error by the
Defendants. Assuming there was no timely waiver of service under Rule 4(d), and
assuming the Defendants were served the complaint immediately upon filing, the
Defendants only had 21 days to file an answer to the original complaint. They did not
answer the complaint or make any pre-answer motions until 25 days after the complaint
was filed, missing the 21 day deadline as required by Rule 12. The Plaintiffs should have
attempted a Default Judgment against the Defendants pursuant to Rule 55. Because
default judgment can only be entered by the clerk at the plaintiffs request, or the party
must apply to the court for a default judgment, it seems as though the Plaintiffs missed
their chance at this action. I would recommend to the judge that no action by taken
regarding that mistake and to proceed with the case as it stands.