Random Florida-to-Illinois Texts, Emails and Phone Calls Not Enough to Subject Fla. LLC to IL Jurisdiction

In McGlasson v. BYB Extreme Fighting Series, LLC, 2017 WL 2193235 (C.D.Ill. 2017), the plaintiff sued a Florida LLC and two Florida residents for pilfering the plaintiff’s idea to host MMA fights on cruise ships off the coast of Florida.

Plaintiff claimed that after he sent a rough video of the concept to them, the defendants hijacked the concept and then formed their own MMA-at-sea event, causing the plaintiff monetary damages.

All defendants moved to dismiss the plaintiff’s claims on the basis that they weren’t subject to Illinois jurisdiction.

The Court granted defendants’ motion to dismiss and in doing so, discussed the requisite contacts for an Illinois court to exercise jurisdiction over an out-of-state defendant who commits an intentional tort.

In breach of contract actions, personal jurisdiction turns on whether a defendant purposefully avails itself or the privilege of doing business in the forum state. With an intentional tort defendant, by contrast, the court looks at whether a defendant “purposefully directed” his conduct at the forum state.

Purposely directing activity at a state requires a finding of (1) intentional conduct, (2) expressly aimed at the forum state, with (3) defendant’s knowledge the effects would be felt in the forum state.  If plaintiff makes all three showings, he establishes that a defendant purposefully directed its activity at the forum state.

A plaintiff in an intentional tort case cannot, however, rely on his own unilateral activity to support jurisdiction over a defendant.  Similarly, a defendant’s contact with a third party with no connection to a forum state isn’t relevant to the jurisdictional analysis.

Here, the lone Illinois contacts alleged of defendants were a handful of emails, phone calls and text messages sent to the Illinois resident plaintiff.  To strengthen his case for jurisdiction over the Florida defendants, plaintiff alleged he suffered an economic injury in Illinois.

Rejecting plaintiff’s argument, the court viewed e-mail as not existing “in any location at all:”  instead, it bounces from server to server and the connection between where an e-mail is opened and where a lawsuit is filed is too weak a link to subject an out-of-state sender to jurisdiction in a foreign state.

The Court also noted that (a plaintiff’s) suffering economic injury in Illinois isn’t enough, standing alone, to confer personal jurisdiction over a foreign resident.  The focus is instead whether the defendant’s conduct “connects him to [Illinois] in a meaningful way.”

Since plaintiff’s MMA-at-sea idea had no connection to Illinois and the defendant’s sporadic phone calls, emails and texts weren’t enough to tie him to Illinois, the Court lacked personal jurisdiction over the Florida defendants.

Take-aways:

1/ In intentional tort setting, a foreign defendant’s conduct must be purposefully directed at a forum state for that state to exercise personal jurisdiction over the defendant;

2/ plaintiff’s unilateral actions vis a vis an out-of-state defendant don’t factor into the jurisdictional calculus;

3/ A defendant’s episodic emails, texts and phone calls to an Illinois resident likely won’t be enough to subject the defendant to personal jurisdiction in Illinois.

 

Facebook Not Subject to Illinois Long-Arm Jurisdiction For Its Photo “Tagging” Feature – IL ND

Surely something as culturally pervasive as Facebook, arguably the Alpha and Omega of social media, is subject to personal jurisdiction in Illinois (or anywhere else for that matter). Wouldn’t it? After all, with over a billion monthly users1 and some 350 million photos uploaded to it daily 2, Facebook’s electronic reach is virtually limitless (pardon the pun).

Wrong – says an Illinois Federal court.  In what will be welcome news to on-line merchants the world over, the Northern District of Illinois recently dismissed a privacy lawsuit filed against the social media titan by an Illinois resident for lack of personal jurisdiction.

The plaintiff in Gullen v. Facebook, Inc., 15 C 7681 3 , http://cases.justia.com/federal/district-courts/illinois/ilndce/1:2015cv07681/314962/37/0.pdf?ts=1453468909 sued under the Illinois Biometric Information Privacy Act (“BIPA”), 740 ILCS 14/1 et seq.   The plaintiff claimed Facebook’s “tag suggestion” feature which culls uploaded photos for facial identifiers, invaded plaintiff’s BIPA privacy rights.

Granting Facebook’s motion to dismiss, the Court gives a useful primer on what a plaintiff must allege to establish an arguable basis for personal jurisdiction over a nonresident corporate defendant.

Federal courts sitting in diversity may exercise personal jurisdiction over a nonresident defendant only if the forum-state court could do so.  Illinois courts can exercise jurisdiction over a nonresident defendant on any basis sanctioned by the Illinois Constitution or the U.S. Constitution;

– For a court to exercise specific personal jurisdiction over an out-of-state defendant, the court looks to whether the defendant has minimum contacts with the forum State and if those contacts create a substantial connection with the forum State;

– In addition, the contacts with the forum must be initiated by the defendant itself and the mere fact that a defendant’s conduct affected a plaintiff who has a connection to the forum isn’t enough for jurisdiction over the nonresident defendant;

– In an intentional tort case, the court looks at whether the defendant (1) engaged in intentional conduct, (2) expressly aimed at the forum state, and (3) had knowledge that the effects of his conduct would be felt in the forum state;

– With intentional torts, the fact that a plaintiff is injured in Illinois can be relevant on the jurisdiction  question but only if the defendant has “reached out and touched” Illinois: if the defendant’s conduct does not connect him with Illinois in a meaningful way, jurisdiction over a non-resident won’t lie in Illinois.

– A website’s interactivity however, is a “poor proxy” for adequate in-state contacts.  So just because a website happens to be accessible to anyone with an Internet connection (basically, every person on the planet) doesn’t open the website operator to personal jurisdiction in every point of the globe where its site can be accessed.4

In arguing that Facebook’s electronic ubiquity subjected it to Illinois jurisdiction (A Federal court sitting in diversity looks at whether the forum state (Illinois) would have jurisdiction over the non-resident defendant)), the plaintiff catalogued the social media Goliath’s contacts with Illinois: (1) Facebook was registered to do business here, (2) it had an Illinois sales and advertising office, and (3) Facebook applied its facial recognition technology to millions of photo users who are Illinois residents.

The court rejected each of these three contacts as sufficient to confer Illinois jurisdiction over Facebook for the plaintiff’s privacy-based claims.  For contacts (1) and (2), the lawsuit didn’t involve either Facebook’s status as an Illinois-registered entity or its Illinois sales and advertising office.  With respect to contact (3) – that Facebook collected biometric information from Illinois residents – the Court found this allegation false.

The Court noted that since Plaintiff alleged that Facebook used the recognition technology in all photos – not just in those uploaded by Illinois users – Facebook’s global use of the technology was not enough to subject Facebook to Illinois court jurisdiction.

Afterwords:

Gullen’s fact-pattern is one most of the world can relate to.  It intersects with and implicates popular culture and national (if not global) privacy concerns in the context of an ever-present and seemingly innocuous photo tagging feature.  The case presents a thorough application of “law school” territorial jurisdiction principles to a definitely post-modern factual context.  This case and others like it to come, cement the proposition that wide-spread access to a Website isn’t enough to subject the site operator to personal jurisdiction where it doesn’t specifically focus its on-line activity in a particular state.

———————

1 http://www.statista.com/statistics/264810/number-of-monthly-active-facebook-users-worldwide/

2 http://www.businessinsider.com/facebook-350-million-photos-each-day-2013-9

3 http://cases.justia.com/federal/district-courts/illinois/ilndce/1:2015cv07681/314962/37/0.pdf?ts=1453468909

4. See Tamburo v. Dworkin, 601 F.3d 693 (7th Cir. 2010), Walden v. Fiore, 134 S.Ct. 1115 (2014).