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James v. Hoffman

Court of Appeals of Ohio, Second District, Montgomery

June 22, 2018

LARRY C. JAMES, et al. Plaintiffs-Appellants
v.
DAVID HOFFMAN, et al. Defendants-Appellees

          Civil Appeal from Common Pleas Court Trial Court Case No. 2017-CV-839

          JAMES E. ARNOLD, GERHARDT A. GOSNELL, Attorneys for Plaintiffs-Appellants.

          BONNY J. FORREST, pro hac vice, Attorney for Plaintiffs-Appellants.

          Larry 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

          J. 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

          D. 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

          OPINION

          TUCKER, J.

         {¶ 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 decisions.

         I. 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 Code.[1]

         {¶ 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.

         II. Analysis

         {¶ 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 Constitution." Id.

         {¶ 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.

         A. Assignment of Error No. 1

         {¶ 8} For their first assignment of error, Appellants argue that:

THE TRIAL COURT ERRED IN GRANTING THE MOTION OF DEFENDANT AMERICAN PSYCHOLOGICAL ASSOCIATION TO DISMISS FOR LACK OF PERSONAL JURISDICTION.

         {¶ 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 ...


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