Opinion
C.A. No. 00C-08-236
Submitted: April 12, 2001
Decided: August 10, 2001
On the Defendants' Motion to Dismiss for Lack of Personal Jurisdiction.
Paul Cottrell, Esquire, TIGHE, COTTRELL LOGAN, P.A., First Federal Plaza, Suite 500, P.O. Box 1031, Wilmington, DE 19899, Attorney for the Plaintiff.
James S. Green, Esquire, Patricia P. McGonigle, Esquire, SEITZ, VAN OGTROP GREEN, P.A., 222 Delaware Avenue, Suite 1500, P.O. Box 68, Wilmington, DE 19899, Attorneys for the Defendants.
OPINION AND ORDER
This motion arises out of a tort action filed by the Plaintiff, Pamela Kane, over alleged defamatory statements and publications made by the Defendants, Linda Coffman and Melvyn Coffman. Oral arguments were heard by the Court on April 12, 2001. All briefing on the issue now having been completed, that which follows is the Court's resolution of this issue.
FACTS
The parties' relationship stems from a business venture entered into between Ms. Kane and Ms. Coffman to coauthor articles, books and other published materials. According to Ms. Kane, the projects that were to be sponsored by the joint venture included producing a book entitled The Unsinkable Spandex Dress and the co-authoring of an advice column in Porthole Magazine. It is unclear exactly how the venture was formally organized or structured. However, it is apparent that Ms. Kane assumed leadership of the business end of the venture from her home in Wilmington, Delaware, and that she claims to have terminated the relationship in October, 1998. The stated reason was Ms. Coffman' s inability to produce "professional grade" writings. It is the events following the end of the parties' relationship that give rise to the present cause of action.
The Coffmans dispute any existence of a contract between the two and contend that the two merely discussed co-authoring a book proposal.
See Pamela Kane Aff. at ¶ 2.
Porthole Magazine is a periodical that focuses on cruise ship vacations.
Ms. Kane asserts that she received and signed all contracts on behalf of the venture and mailed the Defendant her share of the proceeds of the venture from Delaware. See Id. at ¶¶ 3-8; and Compl. at ¶ 8.
Compl. at ¶ 9.
Ms. Kane has alleged that Ms. Coffman made and/or published false and defamatory statements about her subsequent to, and arising out of, the joint venture. More specifically, Ms. Kane contends that in December 1998, Ms. Coffman sent an e-mail to the managing editor of Porthole Magazine accusing Ms. Kane of financial malfeasance. In addition, beginning in January 1999, Ms. Coffman, or another under her influence, sent anonymous letters to several publications including Porthole, which enclosed a previously written and purportedly defamatory article about Ms. Kane. It is further asserted that Ms. Coffman made other false statements about Ms. Kane to numerous publishers, professional authors, and potential employers resulting in the loss of various business opportunities. Finally, Ms. Kane maintains that Mr. Coffman posted a message on an internet bulletin board in which he threatened Ms. Kane, and as a consequence, caused her to suffer extreme emotional distress.
Ms. Kane commenced this action in this Court on August 25, 2000. She alleges that this Court has personal jurisdiction over the Coffmans, who reside in the State of Georgia, pursuant to Delaware's "long arm statute", 10 Del. C. § 3104. She asserts jurisdiction over Ms. Coffman based upon § 3104(c)(2) in that she participated in a venture which operated from Delaware. Furthermore, the torts committed by Ms. Coffman arose out of the business relationship and her contacts with the state were of such a nature that she should reasonably expect to be required to defend herself in the courts of the State of Delaware. Personal jurisdiction over Mr. Coffman is claimed pursuant to § 3104(c)(3) in that he caused a tortious injury within the state. Alternatively, Ms. Kane argues that jurisdiction over Mr. Coffman may be premised upon on § 3104(c)(4), in that he caused tortious injury by an act outside the state but regularly conducts business within Delaware.
The Coffmans have moved to dismiss the action pursuant to Superior Court Civil Rule 12(b)(2) based upon a lack of personal jurisdiction. Ms. Coffman contends that she has never entered into a contract to supply services in Delaware and did not have the required "continuous and systematic general business contacts" within the state in order to confer general jurisdiction over her. Furthermore, facts have not been alleged to support a finding that the courts of this state may assert specific jurisdiction over her. Mr. Coffman maintains that he is not subject to the jurisdiction of this Court because the act about which Ms. Kane complains was not committed in Delaware and that he has never conducted business in this state. Ms. Kane argues that the message posted by Mr. Coffman on the internet bulletin board was intended to be received by her in Delaware. She analogizes the posting of this message to Mr. Coffman personally delivering it to her in the State of Delaware since she viewed the same on her computer here.
DISCUSSION
When reviewing a motion to dismiss, the Court must view the record in a light most favorable to the nonmoving party. All reasonable inferences must be construed most strongly in favor of the plaintiff. Greenly v. Davis, Del. Supr., 486 A.2d 669, 670 (1984); and Harmon v. Eudaily, Del Super., 407 A.2d 232 (1979), aff'd, Del. Supr., 420 A.2d 1175 (1980)
There are two types of in personam jurisdiction that this State may exercise over the non-resident; general or specific. Gerber v. Young, Del. Super., C.A. No. 83C-JL-3, Bush, J. (April 6, 1987) (Mem. Op. at 2) . Specific jurisdiction may be found where the plaintiff's claims arise out of the defendant's acts or omissions within the State. Boone v. Oy Partek AB, Del. Super., 724 A.2d 1150, 1155-1156 (1997). General jurisdiction on the other hand is the finding of jurisdiction over the nonresident defendant based on his general presence in the State and not specifically based on his or her actions within the state. Id.
To obtain personal jurisdiction over a nonresident party, the Court must apply a two-step analysis. The first step requires the Court to consider whether the Delaware "long arm statute" is applicable. If the statute is found applicable, the Court must then proceed to an evaluation of whether subjecting the nonresident party to jurisdiction violates the due process clause of the Fourteenth Amendment to the United States Constitution. LaNuova D B, S.p.A. v. Bowe Co. Inc., Del. Supr., 513 A.2d 764, 768 (1986). This due process analysis requires the Court to consider whether the nonresident party had sufficient "minimum contacts" with the State so that jurisdiction over the party "does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v. State of Washington, 326 U.S. 310, 316 (1945) . The nonresident party' s conduct and connection with the forum State must be such that the party "should reasonably anticipate being haled into court there."World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 294, 297 (1980). Stated another way, it must be "fair and reasonable" for the court to exercise jurisdiction over the non-resident party. Boone at 1158.
The burden is on "the plaintiff to make a specific showing that the Delaware court has jurisdiction under the long-arm statute. Greenly at 670. Section 3104 provides in relevant part:
(c) As to a cause of action brought by any person arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident, or personal representative, who in person or through an agent:
. . .
(2) Contracts to supply services or things in this State;
(3) Causes tortious injury in the State by an act or omission in this State;
(4) Causes tortious injury in the State or outside of the State by an act or omission outside the State if the person regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from services, or things used or consumed in the State. . . .
In this regard, "§ 3104(c) has been broadly construed to confer jurisdiction to the maximum extent possible under the due process clause." LaNuova at 768 (citing Speakman Co. v. Harper Buffing Machine Co., D. Del., 583 F. Supp. 273 (1984); and Moore v. Little Giant Inds., Inc., D. Del., 513 F. Supp. 1043, 1048 (1981) aff'd, 3d. Cir., 681 F.2d 807 (1982))
Ms. Coffman
Ms. Kane claims that Ms. Coffman is subject to personal jurisdiction by the Delaware Courts pursuant to § 3104(c)(2) It is her contention that Ms. Coffman contracted to supply services in the state by virtue of entering into a joint business venture with a Delaware resident and because this joint venture conducted its business, at least in part, from the State of Delaware. Furthermore, the alleged tortious acts arose directly out of this business relationship.
In support of this claim, Ms. Kane points to the fact that all payments to the joint venture were received by Ms. Kane in Delaware. Once these payments were received by the business, Ms. Kane mailed Ms. coffman the portion of the payment that she was entitled to under the agreement from her home in Delaware. Ms. Kane has supplied a copy of a check written out to Ms. coffman which indicates that it was payment for her half of the fee received from Porthole Magazine. See Pl.['s] Resp., Ex. B. The fee was earned pursuant to a contract Ms. Kane entered into on behalf of the business to write the advice column for that magazine. See Id. at Ex. A. she also proffered a letter written by Ms. coffman to the managing editor of that magazine which appears to confirm that the parties were in fact involved in a joint business venture. See Id. at Ex. C.
Section 3104(c)(2) has been held to be a specific jurisdiction provision. Boone at 1155. "Specific jurisdiction is at issue when the plaintiff's claims arise out of acts or omissions that take place in Delaware." Id. In applying § 3104(c)(2) the Delaware Supreme Court held, "if the claim sought to be asserted arose from the performance of business or the discharge of the contract no further inquiry is required concerning any other indicia of the defendant's activity in this State." LaNuova, at 768. Viewing the facts in a light most favorable to Ms. Kane and construing all reasonable inferences in her favor, this Court must find that Ms. Coffman was involved in doing business in or supplying services in the State of Delaware.
It is apparent that there was in fact a joint business venture and the business was run out of Ms. Kane's home in this State. Furthermore, at least a portion of Ms. Kane's claim arose out of the performance of the business or discharge of the contract. Ms. Kane asserts that during the pendency of the relationship, Ms. Coffman wrote a letter to a representative of Porthole Magazine alleging that Ms. Kane was not giving her what she was due of the fee that the venture earned. According to Ms. Kane, this was not true.
Kane Aff. at 9.
The Coffmans contend that Ms. Kane has failed to establish the existence of any contract between the parties as well as any evidence that the business venture was organized under the laws of Delaware. However, whether a written contract exists or whether the formal requirements for setting up a business enterprise in the State were followed is not at issue here. What is at issue is whether the parties mutually agreed to enter into a business arrangement or relationship. Because the business was conducted out of Ms. Kane's home in Delaware, the only conclusion that can be reached is that Ms. Coffman was part of a business based in, operated out of and supplied services in this state. Therefore, this Court finds that § 3104 confers jurisdiction over Ms. Coffman because she was doing business in Delaware and Ms. Kane's claims, at least in part, arise out of that business.
The court must emphasize that this ruling is based upon Ms. Kane's allegations and submissions to the court thus far in the litigation, should discovery produce evidence that is contrary to these allegations and submissions, the court would feel compelled to revisit the issue.
The second step in the analysis requires that the Court determine whether Ms. Coffman's contacts with the State pass constitutional muster under International Shoe and World-Wide Volkswagen. Ms. Kane contends that Ms. Coffman's contacts with the state are sufficient because she came to Delaware to further the joint venture and placed 144 telephone calls to Ms. Kane in Delaware during its existence. In the first instance, the Court must note that the telephone calls to Ms. Kane standing alone, regardless of whether they are of some consequence to the business, are not determinative of this issue. "[M]ail and telecommunications [are] not sufficient minimum contact[s] to give in personam jurisdiction over nonresidents." Bank of America Nat'l. Trust and Say. Ass'n. v. GAC Prop. Credit Inc., Del. Ch., 389 A.2d 1304, 1310 (1978). However, if Ms. Coffman did come to Delaware as alleged to further the joint venture, such contact along with the aforementioned telephone calls, would subject her to jurisdiction by the Delaware Courts. Id. "[E]ven a single transaction is sufficient if the claim has its origin in the asserted transaction." LaNuova, 513 A.2d at 768.
There is a conflict between the parties as to whether or not the Ms. Coffman's visits to Delaware were in conjunction to the joint business venture. However, it is undisputed that the visits were made during the pendency of the business relationship and that the parties were at least in telephone contact with each other during the Defendant's stay in Delaware. In addition, in his affidavit Mr. Coffman indicated that while in Delaware, Ms. Kane and Ms. Coffman engaged in discussions related to the joint venture. Consequently, the Court finds that Ms. Coffman's presence and contacts within the State establish the minimum contacts necessary to allow the Court to exercise personal jurisdiction over Ms. Coffman. Moreover, it is fair and reasonable for Ms. Coffman to be subject to jurisdiction of this Court because, by entering into a business venture that was operated in and from this State, she invoked the benefits and protections of Delaware's laws. Boone at 1159. The exercise of jurisdiction under these circumstances would therefore be consistent with due process.
See Pl.['s] supplemental Mem., Ex. B at ¶ 24.
Mr. Coffman
As noted above, Ms. Kane alleges that Mr. Coffman is subject to personal jurisdiction in Delaware pursuant to § 3104(c)(3) or, in the alternative, § 3104(c)(4). She points to the posting of the electronic message by Mr. Coffman as tantamount to his causing injury within the state. She further asserts that Mr. Coffman regularly conducted business in the State of Delaware during the time relevant to this litigation. Finally, Ms. Kane asserts that given what she claims are inaccuracies in Mr. Coffman's affidavit, that document has no evidentiary value and the record is otherwise devoid of any support for motion to dismiss.
Mr. Coffman responds that there have been no allegations that the tortious act was committed in the State and that he has never conducted business in Delaware. Consequently, there is no basis for the Delaware Courts to assert personal jurisdiction over him. The Court agrees. It is Ms. Kane's burden to make a "prima facie showing that Delaware's long-arm statute confers jurisdiction." Boone at 1154. Ms. Kane has failed to make such a prima facie showing under either § 3104(c)(3) or § 3104(c)(4).
Simply put, the contention that the posting of an electronic message on an internet bulletin board is sufficient is unsupported by any legal authority or logic. Moreover, the analogy drawn by Ms. Kane is misplaced. The personal delivery of a message requires a physical presence within the state to deliver the message. Posting an electronic message does not. In addition, as described above, neither telephone calls nor mail directed at one within the state from outside that state supplies the necessary minimum contacts for the courts in that state to exercise personal jurisdiction. Bank of America Nat'l. Trust and Say. Ass'n., at 1310. More is required. It follows as a result that an internet posting made from outside the state and received by a party inside the state also fails to provide sufficient minimum contacts to allow this Court to exercise jurisdiction as Ms. Kane has requested via § 3104(c)(3).
It is important to note as well that the posting was "on" an electronic bulletin board. Ms. Kane has not alleged that the bulletin board has any connection with or contact in Delaware; only that she accessed it from her home in this state. Again, without more, that is not enough.
The allegation that "Melvyn Coffman has . . . caused tortious injury by an act outside this State but regularly conducts business within this State. . . .", Compl. at ¶ 6, must be deemed to be without substance as well. To make a short story shorter, Ms. Kane has failed to provide any evidentiary support for that contention. As a consequence, § 3104(c)(4) is also of no assistance to Ms. Kane's effort to bring Mr. Coffman within jurisdiction of the courts of this state.
CONCLUSION
Accordingly, based on the reasons set forth above, the Defendant's motion to dismiss must be denied as to Ms. Coffman and granted as to Mr. Coffman.
IT IS SO ORDERED.