Silver v. Brown ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
June 14, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
DAVID SILVER,
Plaintiff-Appellant,
v. No. 10-2005
(D.C. No. 1:09-CV-00510-JB-ACT)
MATTHEW BROWN; JACK (D. N.M.)
MCMULLEN,
Defendants-Appellees,
and
GROWTH TECHNOLOGIES
INTERNATIONAL,
Defendant.
ORDER AND JUDGMENT *
Before McKAY, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL,
Circuit Judge.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Plaintiff-appellant David Silver, appearing pro se, appeals the district
court’s dismissal of his slander, defamation of character, and duress claims
against defendants-appellees Matthew Brown and Jack McMullen in this
diversity-of-citizenship case. As relevant for purposes of this appeal, Mr. Silver,
a citizen of New Mexico, asserted that Mr. Brown and Mr. McMullen, citizens of
Florida, had slandered him, defamed his character, and caused him duress, by
posting a “web log” or “blog” on the internet that portrayed him in a negative
light. The district court dismissed Mr. Silver’s claims for lack of personal
jurisdiction, holding that, under New Mexico’s long-arm statute, neither
Mr. Brown nor Mr. McMullen had sufficient contacts with New Mexico to
provide the court with jurisdiction over them. Our jurisdiction is under 28 U.S.C.
§ 1291. Because we believe that the court erred in its jurisdictional analysis
regarding the tort claims against Mr. Brown, we affirm the court’s dismissal as to
Mr. McMullen, reverse the court’s dismissal as to Mr. Brown, and remand the
case to the district court for further proceedings.
I.
The genesis of this dispute was an agreement entered into between
Northern Hills, Inc., doing business as Sante Fe Capital Group (Santa Fe) and
Growth Technologies International, Inc. (GTI). Mr. Silver was the president of
Santa Fe, Matthew Brown was the chief executive officer of GTI, and
Mr. McMullen was a member of GTI’s board of directors. In that agreement,
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Santa Fe agreed to assist GTI in raising money from private “angel investors” in
exchange for a fee. It suffices to say that after some, but not all, of Santa Fe’s fee
had been paid, relations between the companies and their officers soured.
Mr. Silver then sought the remainder of the fee he alleged was due Santa Fe and
Mr. Brown sought a refund of the portion previously paid by GTI. The basis for
Mr. Silver’s personal tort claims for slander, defamation, and duress against
Mr. Brown and Mr. McMullen was a “blog” that Mr. Brown posted to the internet
regarding this conflict, with the intent of negatively affecting Mr. Silver’s and
Santa Fe’s reputation. 1
The domain name of the blog in question is “DavidSilverSantaFe.com.”
Mr. Silver attached a copy of what is apparently the first page of the blog to his
complaint. The title of the blog is “A Special Report on David Silver and the
Santa Fe Capital Group.” R., Vol. 1 at 24. The first page contains an
introduction to the blog written by Mr. Brown. It reads:
This site is dedicated to providing a blog and information regarding
Companies that have dealings with David Silver and Santa Fe Capital
group. Our company was involved in a transaction that became a
nightmare and we are in the process of gathering all content and
correspondence with David Silver and employees of Sant[a] Fe
Capital group to be posted on this new “social network for businesses
wishing to raise capital”. Hopefully other companies and individuals
1
A “blog” is short for “weblog” and is defined as “a Web site that contains
an online personal journal with reflections, comments, and often hyperlinks
provided by the writer; also: the contents of such a site.” Merriam-Webster
Online Dictionary, http://www.merriam-webster.com/dictionary/blog (last visited
May 13, 2010).
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in the “capital raise” scenario might not fall prey to what appears to
be a scheme to prey on those needing to raise capital through David
Silver’s group.
Id. Mr. Brown then posts a web address for an article about “what appears to be
the latest company that has contracted David Silver’s Group” and states that he
hopes that the company “will have better luck than we did . . . .” Id. Mr. Brown
goes on to state:
I will be linking to Blog’s [sic] in the near future which provide
resources to reputable venture funds and a CNN blog which has
articles on Santa Fe.
I hope this site will help other companies and individuals understand
and communicate their transactions with David Silver and Santa Fe
Capital group.
We will launch all correspondence and a blog for others to
participate in what we hope becomes a social network platform for
David Silver and others.
Id. Under the “Latest News” heading appear to be five bullet-pointed hyperlinks:
• David Silver is a thief
• David Silver
• David Silver is a Thief
• CNN blog
• cnn blog
Id. According to the “Main Menu” for the website, it has four parts: “Home”;
“The Blog”; Newsroom”; and “The Forum.” Id.Mr. Silver also attached to his complaint a copy of an e-mail exchange
between himself and Mr. Brown regarding the blog. There is an e-mail dated
April 29, 2009, evidently from Mr. Brown to Mr. Silver, that reads:
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BTW:
I have two developers doing SEO work on [the blog] right now . . . . .
I’m glad Bob called to remind me that we need to be launched this
week! I went through this one time with an investment firm . . . . .
and the ruling was . . . as long as the information is factual, we can
tie this thing up for years!
Its real easy . . . . . send back our 6K for services that were not
rendered . . . . . . . and on top of it, send me the mailing information,
copies of bills for all the administrative things we were charged for .
....
~Matt
Id. at 26. 2
The next e-mail is from May 4, 2009, and was sent from Mr. Brown to
Mr. Silver and Mr. McMullen (but addresses only Mr. McMullen). It reads:
2
The phrase “SEO” appears to stand for “search engine optimization,” which
basically means taking steps to ensure that your website is shown first, or as close
to first as possible, when the topic of your website is searched for on an internet
search engine such as Google or Yahoo!.
A number of scholars have described both how search engines
operate and how they have become a crucial intermediary between
the user and digital information. That Google’s homepage, which
contains virtually no content, is the most visited site in the United
States indicates the extent to which people use search engines to
access the online world. Advertisers were estimated to spend eleven
billion dollars on advertising with search engines in 2008, reflecting
the sheer economic power of the industry. Indeed, an entirely new
industry, search engine optimization (“SEO”), has arisen to assist
website owners in improving their rankings in search engine results,
a fact that emphasizes search engines’ role as a gatekeeper and driver
of the online economy.
Viva R. Moffat, Regulating Search, 22 Harv. J.L. & Tech. 475, 481-82 (Spring,
2009) (footnotes omitted).
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Jack,
I have not received a refund from David. Have You? We have
installed a product called Joomla . . . . . which will integrate a full
blog site for www.DavidSilverSanteFe.com; this product also
integrates postings to Google and Yahoo, which will help drastically
with keyword management for search engine exposure!
I should have it up by the end of the day!
Id. at 27.
Mr. Silver responded to this e-mail, asked for the stock and funds Santa Fe
was still owed, reminded Mr. Brown that the agreement provided for disputes to
be settled by arbitration, and warned Mr. Brown that he would be sued in federal
district court in New Mexico–and “could end up having to frequently appear
[there]”–if he disparaged Mr. Silver or Santa Fe. Id.Mr. Brown responded: “Real simple, I do not give a [expletive]! I am
launching at the end of the day . . . and copying a server in Hong Kong out of my
control, which will not be managed by us! Refund our money or stop sending
emails!” Id. Mr. Silver responded that if he “got one single call from a member
of the public that he saw [the] blog” he was going to bring disparagement and
interference-with-business claims in New Mexico. Id.According to the complaint, the blog was posted to the internet on, or
about, May 5, 2009. Mr. Silver sent an e-mail on May 20, 2009, to
Mr. McMullen that read: “Jack: I[’]m counting the dollars and long-run damage
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that [GTI] is doing to my name. You will be named in the suit. David.” Id. at
25. Mr. Brown responded on May 21:
David,
Your scare tactics will never work . . . . . I will never remove that
site, unless I am proved wrong and Jack and [GTI] are refunded. I
will give you the name of the two people who were going to send you
a retainer (who will not now) [. . .] so go ahead and Sue me . . . . .
That will gain more traction for the blogs!!!!! If a court orders me
(which will be years down the road), I will send it to a Korea hosting
site, which cannot be removed . . . . . . you will not win this![ . . .]
Simply refund the money . . . . . . . . .
I warned you this would happen . . . and its going to get much worse,
we have daily signups and people asking the moderator about you,
which I respond to . . . . . I have better things to do with my time!
Please advise, how you want me to proceed!
As in every email I will send you, I hope it was worth the $3,750.00 .
...
~Matt
Id.Mr. Silver filed his pro se federal complaint five days later on May 26,
2009. After a hearing, the district court dismissed Mr. Silver’s tort claims against
defendants-appellees for lack of personal jurisdiction. Mr. Silver has appealed
the dismissal of his slander, defamation, and duress claims against Mr. Brown and
Mr. McMullen.
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II.
We turn first to Mr. Silver’s claims against defendant-appellee Jack
McMullen. The district court dismissed Mr. Silver’s claims against
Mr. McMullen arising out of the blog based on its finding that Mr. Silver “ha[d]
not demonstrated that McMullen was significantly associated with the blog or
controlled it in any way.” R., Vol. 1 at 178. Although Mr. Silver claims to be
appealing the jurisdictional ruling as to both appellees–he complains the
“Appellees” disparage him with the blog, see Aplt. Br. at 2 (“Appellees knew, or
should have known, that they might have to defend a law suit in New Mexico
when they put up the disparaging blog.”)–he does not directly challenge the
district court’s finding that Mr. McMullen did not start or control the blog.
Accordingly, Mr. Silver has waived any challenge to the district court’s dismissal
of his claims against Mr. McMullen. 3 See Adler v. Wal-Mart Stores, Inc.,
144 F.3d 664, 679 (10th Cir. 1998) (“Arguments inadequately briefed in the
opening brief are waived[.]”). Thus, we affirm the district court’s dismissal of
Mr. Silver’s claim against Mr. McMullen.
3
Mr. Silver could not effectively challenge that finding anyway, because he
has failed to provide this court with a copy of the transcript of the evidentiary
hearing held on the motion to dismiss. Under Federal Rule of Appellate
Procedure 10(b) and 10th Circuit Rule 10.1(a)(1), it is the appellant’s duty to
provide us with all portions of the transcript necessary for the appeal.
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III.
We therefore turn to Mr. Silver’s argument that the district court erred in
holding that Mr. Brown’s posting of the blog did not provide the district court
with jurisdiction over him. 4
As to the applicable test for personal jurisdiction, “our analysis begins with
two questions. First, we ask whether any applicable statute authorizes the service
of process on defendants. Second, we examine whether the exercise of such
statutory jurisdiction comports with constitutional due process demands.”
Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir.
2008). As to the first question, Federal Rule of Civil Procedure 4(k)(1)(A)
commands the district court to apply the law of the state in which the district
court sits. As properly recognized by the district court, New Mexico’s long-arm
statute provides:
A. Any person, whether or not a citizen or resident of this state, who
in person or through an agent does any of the acts enumerated in this
subsection thereby submits himself or his personal representative to
the jurisdiction of the courts of this state as to any cause of action
arising from:
....
(3) the commission of a tortious act within this state;
4
Mr. Silver’s failure to provide us with the transcript of the evidentiary
hearing has little effect on this purely legal argument. The parties generally agree
on what Mr. Brown did in posting the blog; they disagree on the legal effect of
those actions. To the extent that Mr. Silver posits facts on appeal that are
contrary to the district court’s findings, they have been ignored.
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....
C. Only causes of action arising from acts enumerated in this section
may be asserted against a defendant in an action in which jurisdiction
is based upon this section.
N.M. Stat. Ann. § 38-1-16 (1978). The New Mexico Supreme Court has held that
the New Mexico long-arm statute is coextensive with the constitutional
limitations imposed by the due process clause. See Tercero v. Roman Catholic
Diocese of Norwich, 48 P.3d 50, 54 (N.M. 2002). “Thus, in our case, the first,
statutory, inquiry effectively collapses into the second, constitutional, analysis.”
Dudnikov, 514 F.3d at 1070.
“The Supreme Court has held that, to exercise jurisdiction in harmony with
due process, defendants must have ‘minimum contacts’ with the forum state, such
that having to defend a lawsuit there would not ‘offend traditional notions of fair
play and substantial justice.’” Id. (quoting Int’l Shoe Co. v. Washington, 326
U.S. 310, 316 (1945)). Minimum contacts can be established through general or
specific personal jurisdiction.
General jurisdiction is based on an out-of-state defendant’s
“continuous and systematic” contacts with the forum state, and does
not require that the claim be related to those contacts. Specific
jurisdiction, on the other hand, is premised on something of a quid
pro quo: in exchange for “benefitting” from some purposive conduct
directed at the forum state, a party is deemed to consent to the
exercise of jurisdiction for claims related to those contacts.
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Id. at 1078 (citation omitted). Here, Mr. Silver asserts that the district court had
specific jurisdiction over Mr. Brown.
As to specific jurisdiction, “the Supreme Court has instructed that the
‘minimum contacts’ standard requires, first, that the out-of-state defendant must
have ‘purposefully directed’ its activities at residents of the forum state, and
second, that the plaintiff’s injuries must ‘arise out of’ defendant’s forum-related
activities.” Id. at 1071 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462,
472 (1985)). Finally, “exercising personal jurisdiction over defendants must
always be consonant with traditional notions of fair play and substantial justice.”
Id.A.
As to the first requirement for specific jurisdiction, “[i]n the tort context,
we often ask whether the nonresident defendant ‘purposefully directed’ [his]
activities at the forum state.” Id. at 1071. We think it is clear from Calder v.
Jones, 465 U.S. 783 (1984), that Mr. Brown purposefully directed his blog at New
Mexico, and that Mr. Silver’s alleged injuries arise out of Mr. Brown’s New
Mexico-related activities.
In that case, actress Shirley Jones, who starred in the television show “The
Partridge Family,” sued the National Enquirer, Inc. (Enquirer), and its local
distributing company in California, for libel, invasion of privacy, and intentional
infliction of emotional harm in response to an Enquirer article about her. Calder,
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465 U.S. at 784-85. Ms. Jones also sued the writer and editor of the article.
While the Enquirer and its distributor did not contest jurisdiction, the writer and
editor did. The ultimate state court ruling was that the California courts had
personal jurisdiction over the defendants. The United States Supreme Court
agreed.
The Court held that “[i]n judging minimum contacts, a court properly
focuses on ‘the relationship among the defendant, the forum, and the litigation.’”
Id. at 788. It noted that, while “[t]he plaintiff’s lack of ‘contacts’ [with the forum
state] will not defeat otherwise proper jurisdiction, . . . they may be so manifold
as to permit jurisdiction when it would not exist in their absence.” Id. (citation
omitted). The writer and editor had argued that “they [were] not responsible for
the circulation of the article in California[,]” that they had “no direct economic
stake in their employer’s sales in a distant State[,]” and that they were not “able
to control their employer’s marketing activity.” Id. at 789. They argued that the
mere foreseeability of damage occurring in California was not sufficient to
establish jurisdiction.
The court held that the “petitioners [were] not charged with mere
untargeted negligence” but, instead, “intentional, and allegedly tortious, actions
[that] were expressly aimed at California.” Id. The court held that “[u]nder the
circumstances, petitioners must reasonably anticipate being haled into court there
to answer for the truth of the statements made in their article” and that “[a]n
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individual injured in California need not go to Florida to seek redress from
persons who, though remaining in Florida, knowingly cause the injury in
California.” Id. at 790 (quotation omitted). This court has written:
Distilling Calder to its essence, we thus understand the Court
to have found purposeful direction there because of the presence of
(a) an intentional action (writing, editing, and publishing the article),
that was (b) expressly aimed at the forum state (the article was about
a California resident and her activities in California; likewise it was
drawn from California sources and widely distributed in that state),
with (c) knowledge that the brunt of the injury would be felt in the
forum state (defendants knew Ms. Jones was in California and her
career revolved around the entertainment industry there).
Dudnikov, 514 F.3d at 1072. These factors are met in this case.
First, the posting of the blog was clearly an intentional act. Mr. Brown
created the blog in question in direct response to the failed business deal and, in
fact, used the threat of posting to attempt to recover money he thought GTI was
owed. He served as moderator of the blog and wrote at least the introductory
page claiming his company had been wronged by Mr. Silver and Santa Fe and
expressing the hope that “other companies and individuals in the ‘capital raise’
scenario might not fall prey to what appears to be a scheme to prey on those
needing to raise capital through David Silver’s group.” R., Vol. 1 at 24. His
clear intention was to damage Mr. Silver’s and Santa Fe’s reputation.
Mr. Brown also expressly aimed his blog at New Mexico. It was about a
New Mexico resident and a New Mexico company. The blog complained of
Mr. Silver’s and Santa Fe’s actions in the failed business deal. Those actions
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occurred mainly in New Mexico. And the blog was widely available in New
Mexico over the internet and all the various ways the internet may be accessed in
this day and age.
Finally, Mr. Brown had knowledge that the brunt of the injury to Mr. Silver
would be felt in New Mexico. Mr. Brown knew Santa Fe was located in New
Mexico and that Mr. Silver lived in New Mexico and conducted his business from
there. In the affidavit he submitted in support of his response to defendants’
motion to dismiss, Mr. Silver averred that he “founded the Venture Capital Club
of New Mexico and funded dinner meetings for eleven years, one evening a
month at which New Mexico entrepreneurs pitched their ‘deals’ to angel
investors,” and that his work had “helped create or save employment for more
than 3,000 people in New Mexico.” Id. at 76. While Mr. Silver clearly has many
contacts outside New Mexico, that state is unquestionably the center of his
business activities.
The district court, in holding that Mr. Brown’s contacts with New Mexico
were “tenuous” appears to have disagreed that the brunt of the injury would be
felt in New Mexico. The court found it important that “the blog is not a website
that is directed solely at the people of New Mexico” and that “[t]he number of
people who can access the website in New Mexico in comparison to those who
are able to access the website throughout the world, or even in the United States, .
. . is nominal.” Id. at 177. The court also pointed out that, despite the domain
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name of the blog being “DavidSilverSantaFe.com,” there were other cities called
Santa Fe, many businesses not located in New Mexico that used “Santa Fe” in
their names, and there were obviously other men named David Silver. We think
this analysis disregards the ubiquitous nature of search engines.
The district court’s analysis would make some sense if the internet was
more like television, or radio, or print media; but it is not. In the past, the
population listened to television, or radio, or read the newspaper, and got
generally the same content. But technology in general, and the internet in
particular, has allowed for greater and greater specialization of information. On
the internet, a person can pick what television shows to watch at what time, listen
to radio stations from around the world, access news and opinions from a
fabulous array of sources, and purchase products from vendors worldwide. It
would be impossible to quickly and efficiently navigate such a tremendous
amount of information if not for the increasing sophistication and use of search
engines on the internet. But those sophisticated search engines do exist, and with
their use it is becoming more and more irrelevant, for the purposes of our
analysis, how many worldwide or nationwide internet connections there are, or
how many men named David Silver exist in the world, because, with the use of
these search engines, the people that are searching for information on this David
Silver are the ones who are going to end up viewing Mr. Brown’s blog. And
Mr. Brown knows this, as evidenced by the concern for increased search engine
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optimization expressed in his e-mails. Consequently, it is clear that this is not a
case of untargeted negligence that just happened to cause damage in New Mexico.
“[A]ctions that ‘are performed for the very purpose of having their consequences
felt in the forum state’ are more than sufficient to support a finding of purposeful
direction under Calder.” Dudnikov, 514 F.3d at 1078 (quoting Finley v. River
North Records, Inc., 148 F.3d 913, 916 (8th Cir. 1998)).
B.
We also think that it is clear that Mr. Silver’s alleged injuries “arise out of”
Mr. Brown’s contacts with New Mexico. The facts in this case are similar to the
recent case of Tamburo v. Dworkin, 601 F.3d 693 (7th Cir. 2010), which we find
persuasive. In that case, Mr. Tamburo, a software designer who lived and
operated his business in Illinois, designed software for use by dog breeders and
enthusiasts. He incorporated information regarding dog pedigrees that he gleaned
from the internet into an online database that he then sold to customers. Much of
the information gleaned was from websites owned by four individuals located in
Colorado, Michigan, Ohio, and Canada. When these individuals found out about
Mr. Tamburo’s use of their information, they posted statements on their websites
“accusing Tamburo of ‘theft,’ ‘hacking,’ and ‘selling stolen goods,’ and calling
on readers to boycott his products. They also posted Tamburo’s Illinois address
on their websites and urged readers to contact him to harass him and otherwise
complain.” Id. at 698. Mr. Tamburo sued these individuals in the federal court in
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Illinois, alleging, among other claims, defamation, tortious interference with
existing contracts and prospective economic advantage, trade libel, and civil
conspiracy under Illinois law. The district court dismissed for lack of personal
jurisdiction and the Court of Appeals for the Seventh Circuit reversed. The court
held that defendants had purposely directed their conduct at Illinois.
Noting that “Tamburo’s injury must ‘arise out of’ or ‘relate to’ the conduct
that comprises the defendants’ contacts with the forum[,]” id. at 708 (quoting
Burger King Corp., 471 U.S. at 472), the court recognized a circuit split regarding
the causal connection required between a defendant’s contacts with the forum
state and the suit at issue. It noted that the First Circuit required that the forum
contacts “must constitute both the cause in fact and the proximate cause of the
injury,” the Ninth and Fifth Circuits required that the forum contacts “constitute a
but-for cause of the injury,” and the Third Circuit required “a closer and more
direct causal connection than that provided by the but-for test[,]” but had not
adopted a precise rule. Id. (quotations omitted). We have also recognized the
circuit split. See Dudnikov, 514 F.3d at 1078.
But the Seventh Circuit held that it need not take a position on the circuit
split because
[u]nder even the most rigorous approach to the determination of
whether the plaintiff’s injury “arises out of” the defendant’s contacts
with the forum state, Tamburo’s injury clearly does. We have already
concluded that [defendants] expressly aimed their allegedly tortious
conduct at Tamburo and his Illinois-based business for the purpose of
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causing him injury there; these “contacts” with the forum state are
the cause in fact and the legal cause of Tamburo’s injury. That is,
Tamburo’s claims arise directly out of the individual defendants’
contacts with Illinois.
Tamburo, 601 F.3d at 709.
The same reasoning applies in this case. As discussed above, Mr. Brown’s
blog was expressly aimed at Mr. Silver and his New Mexico-based business for
the purpose of causing him injury there. Thus, the contacts with the forum state
from the blog are the cause in fact and the legal cause of Mr. Silver’s injury.
C.
The final requirement we have to consider is “whether the exercise of
personal jurisdiction [over Mr. Brown] would ‘offend traditional notions of fair
play and substantial justice.’” Dudnikov, 514 F.3d at 1080 (quoting Int’l Shoe,
326 U.S. at 316). The factors to be considered in regard to this requirement are:
(1) the burden on the defendant, (2) the forum state’s interests in
resolving the dispute, (3) the plaintiff’s interest in receiving
convenient and effectual relief, (4) the interstate judicial system’s
interest in obtaining the most efficient resolution of controversies,
and (5) the shared interest of the several states . . . in furthering
fundamental social policies.
Id. (quotation omitted); see also Burger King Corp., 471 U.S. at 477 (setting forth
factors). None of these factors weigh heavily in favor of Mr. Brown. The burden
imposed on him in defending a lawsuit in New Mexico is no greater than what
would be placed on Mr. Silver if forced to prosecute one in Florida. New Mexico
has a strong interest in providing a forum for its residents to seek redress for tort
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injuries suffered within the state. Further, “[f]alse statements of fact harm both
the subject of the falsehood and the readers of the statement. [New Mexico] may
rightly employ its . . . laws to discourage the deception of its citizens.” Keeton v.
Hustler Magazine, Inc., 465 U.S. 770, 776 (1984). And, as to the last two factors,
in a case such as this one, New Mexico would seem to provide the most efficient
resolution of the controversy. While Mr. Brown was clearly trying to damage
Mr. Silver’s reputation as widely as possible, it seems clear that the most damage
would be done in New Mexico. The location of Mr. Brown, or the computer
server on which the electronic program underlying the blog operates, has little
practical effect on the damage caused, as is clear from Mr. Brown’s own e-mails.
Mr. Brown could access the blog from anywhere and it is clear the program can
run on any number of different servers and achieve the same access to the
internet, including servers located in foreign countries. See R., Vol. 1 at 25 (“If a
court orders me . . . I will send it to a Korea hosting site, which cannot be
removed[.]”); id. at 27 (“I am . . . copying a server in Hong Kong out of my
control[.]”). The damage is done when a person searching the internet for
information about Mr. Silver runs across Mr. Brown’s blog. Cf. Keeton, 465 U.S.
at 777 (“The tort of libel is generally held to occur wherever the offending
material is circulated.”). The exercise of jurisdiction in New Mexico over
Mr. Brown does not, therefore, offend traditional notions of fair play and
substantial justice.
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IV.
The judgment of the district court dismissing Mr. Silver’s claims against
Mr. McMullen for lack of personal jurisdiction is AFFIRMED. The judgment of
the district court dismissing Mr. Silver’s state-law tort claims against Mr. Brown
is REVERSED, and the case is REMANDED to the district court for further
proceedings.
Entered for the Court
Monroe G. McKay
Circuit Judge
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