Court of Appeals of Ohio, Second District, Montgomery
LARRY C. JAMES, et al. Plaintiffs-Appellants
DAVID HOFFMAN, et al. Defendants-Appellees
Appeal from Common Pleas Court Trial Court Case No.
E. ARNOLD, GERHARDT A. GOSNELL, Attorneys for
J. FORREST, pro hac vice, Attorney for Plaintiffs-Appellants.
C. James, L. Morgan Banks, III, Debra L. Dunivin, and Russell
Newman; and LOUIS J. FREEH, pro hac vice, Attorney for
Plaintiff-Appellant Stephen Behnke
STEVEN JUSTICE, and GLEN R. McMURRY, and BARBARA S. WAHL, pro
hac vice, and KAREN E. CARR, pro hac vice, Attorneys for
Defendant-Appellee American Psychological Association
JEFFREY IRELAND, ERIN E. RHINEHART, and CHRISTOPHER C.
HOLLON, and THOMAS G. HENTOFF, pro hac vice, and JOHN K.
VILLA, pro hac vice, Attorneys for Defendants-Appellees
Sidley Austin LLP and David Hoffman
1} Plaintiffs-appellants, L. Morgan Banks, III;
Stephen Behnke; Debra L. Dunivin; Larry C. James; and Russell
Newman, appeal from a pair of decisions issued by the trial
court on August 25, 2017, in which the court determined that
it lacked personal jurisdiction over Defendants-appellees,
the American Psychological Association ("APA"),
Sidley Austin LLP ("Sidley-Austin"), and
Sidley-Austin partner David Hoffman. Appellants argue that
the trial court erred because Appellees purposefully engaged
in certain activities within this state, because the causes
of action set forth in the complaint arose from
Appellees' activities here, and because the trial
court's exercise of personal jurisdiction over Appellees
would be reasonable as a matter of practicality. We find that
the trial court did not err, and therefore, we affirm the
Facts and Procedural History
2} In October 2014, the publication of the book
Pay Any Price: Greed, Power, and Endless War
prompted the APA to investigate allegations that it had
collaborated with elements of the federal government to
promote the use of abusive methods for conducting
interrogations related to national security. Compl. ¶
2-3; APA's Br. 4; Sidley-Austin's Br. 2. The APA
chose the law firm of Sidley-Austin, with Hoffman as lead
attorney, to perform the investigation, during the course of
which the firm "reviewed more than 50, 000 pages of
documents" and interviewed 148 witnesses.
Sidley-Austin's Br. 2. Two of the interviews took place
in Ohio, and a total of six of the witnesses were residents
of Ohio, including Appellant, Larry James. Appellants'
Br. 5; Sidley-Austin's Br. 2. James spoke with
investigators in his office in Dayton. Appellants' Br. 5;
Sidley-Austin's Br. 4.
3} Sidley-Austin submitted its final report (the
"Report") to the APA in late June or early July
2015. See Appellants' Br. 2. fn.1; APA's Br.
2; Sidley-Austin's Br. 1 fn.2; Mot. of Sidley-Austin and
Hoffman to Dismiss under D.C. Code § 16-5502, Ex. 2A,
Apr. 7, 2012 (revised version of the Report dated September
4, 2015). A copy of the Report appeared on the website of
The New York Times on July 10, 2015, and the APA
posted a copy of the Report on its own website later that
day. APA's Br. 5; see Appellants' Br. 5.
4} On February 16, 2017, Appellants filed their
complaint against Appellees, asserting eleven claims for
defamation and one claim for false light invasion of privacy.
See Compl. ¶ 303-304, 325-326, 346-347,
367-368, 388-389, 408-409, 427-428, 446-447, 464-465,
485-486, 515-516 and 524. Appellees responded to the
complaint by filing three motions to dismiss on April 7,
2017: the APA filed a single motion to dismiss based
alternatively on Civ.R. 12(B)(2), the doctrine of forum non
conveniens, and D.C. Code § 16-5502 (2012), whereas
Sidley-Austin and Hoffman filed two motions, one pursuant to
the rule and the doctrine of forum non conveniens, and the
other pursuant to the District of Columbia
5} Following a hearing, the trial court sustained
Appellees' motions to dismiss in two decisions issued on
August 25, 2017. The court held, albeit implicitly, that
although it theoretically could have exercised personal
jurisdiction over Appellees under R.C. 2307.382, such an
exercise of jurisdiction would not be "consistent with
the Due Process Clause of the Fourteenth Amendment."
See Order Granting Mot. of APA to Dismiss 1, Aug.
25, 2017; Order Granting Mot. of Sidley-Austin and David
Hoffman to Dismiss 1, Aug. 25, 2017. On September 22, 2017,
Appellants timely filed their notice of appeal.
6} Appellants argue that the trial court should have
found that Appellees are subject to specific personal
jurisdiction and overruled their motions to dismiss.
Appellants' Br. 8-10; see also Kauffman Racing
Equip., LLC. v. Roberts, 126 Ohio St.3d 81,
2010-Ohio-2551, 930 N.E.2d 74, ¶ 46-47 (distinguishing
between "general" and "specific" personal
jurisdiction). Determining "whether an Ohio trial court
has personal jurisdiction over a nonresident defendant
[requires] a two-step analysis." Kauffman
Racing at ¶ 28, citing U.S. Sprint
Communications Co. Ltd. Partnership v. Mr. K's Foods,
Inc., 68 Ohio St.3d 181, 183-184, 624 N.E.2d 1048
(1994). First, the court must determine "whether the
long-arm statute [i.e., R.C. 2307.382] and the applicable
rule of civil procedure [i.e., Civ.R. 4.3] confer
jurisdiction." Id. Second, if the long-arm
statute would confer jurisdiction, then the court must
determine "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
7} When a challenge is raised, the "plaintiff
[bears] the burden of establishing" that the trial court
has personal jurisdiction over the defendant. EnQuip
Technologies Group, Inc. v. Tycon Technoglass, S.rl, 2d
Dist. Greene Nos. 2009 CA 42 & 2009 CA 47, 2010-Ohio-28,
¶ 57, citing Ashton Park Apts., Ltd. v.
Carlton-Naumann Constr., Inc., 6th Dist. Lucas No.
L-08-1395, 2009-Ohio-6335, ¶ 12. The court, in reaching
its decision, "must 'view [the] allegations in the
pleadings and the documentary evidence in a light most
favorable' to the plaintiff and resolv[e] all
reasonable[, ] competing inferences in [the plaintiffs]
favor." Kauffman Racing at ¶ 27, quoting
Goldstein v. Christiansen, 70 Ohio St.3d 232, 236,
638 N.E.2d 541 (1994). A ruling on personal jurisdiction
"is a question of law that [an] appellate court[ ]
review[s] de novo." Id.
Assignment of Error No. 1
8} For their first assignment of error, Appellants
THE TRIAL COURT ERRED IN GRANTING THE MOTION OF DEFENDANT
AMERICAN PSYCHOLOGICAL ASSOCIATION TO DISMISS FOR LACK OF
9} Appellants contend that the trial court erred by
finding that it could not exercise personal jurisdiction over
the APA consistent with principles of due process.
Appellants' Br. 8-10. According to Appellants, the APA
subjected itself to the jurisdiction of Ohio courts by
publishing the Report in Ohio; by publishing the Report even
though it "knew that [statements in the Report] would
cause injury in Ohio"; and by ratifying the acts of
Sidley-Austin and Hoffman in preparing the Report, which
included a handful of visits to the state and six interviews
with Ohio residents. See id. at 12-18.
10} The trial court did not discuss the application
of R.C. 2307.382 in its decisions of August 25, 2017, and the
parties likewise have not addressed the statute in their
briefs to this court. R.C. 2307.382(A) authorizes an Ohio
court to exercise personal jurisdiction over a nonresident
who, among other things, "[t]ransact[s] any
business" here or causes "tortious injury" to
one or more persons within the state as the result of an act
committed elsewhere "with the purpose of injuring
persons," so long as the act "might reasonably have
[been] expected" to cause injury to a person in Ohio.
See also EnQuip Technologies Group, 2d Dist. Greene
Nos. 2009 CA 42 & 2009 CA 47, 2010-Ohio-28, ¶ 60.
Although R.C. 2307.382(A) has been interpreted broadly,
particularly on the basis of the phrase "[transacting
any business" in R.C. 2307.382(A)(1), its reach is not
unlimited. See, e.g., Kauffman Racing, 126 Ohio
St.3d 81, 2010-Ohio-2551, 930 N.E.2d 74, ¶ 5-6 and
41-44; EnQuip ...