M. Groo v. 11th Judicial District ( 2023 )

10/11/2023
OP 22-0587
Case Number: OP 22-0587
IN THE SUPREME COURT OF THE STATE OF MONTANA
2023 MT 193MELISSA GROO,
Petitioner,
v.
MONTANA ELEVENTH JUDICIAL DISTRICT
COURT, HON. AMY EDDY, Presiding,
Respondent.
ORIGINAL PROCEEDING: Petition for Writ of Supervisory Control
In and For the County of Flathead
Cause No. DV-22-087(A)
Honorable Amy Eddy, Presiding Judge
COUNSEL OF RECORD:
For Petitioner:
David B. Cotner (argued), Brian T. Geer, Cotner Ryan Law, PLLC,
Missoula, Montana
For Plaintiffs Triple D. Game Farm, Inc., Lorney “Jay” Deist, and Kimberly
Deist:
Kris A. McLean (argued), Tyson A. McLean, Jordan A. Pallesi, Kris A.
McLean Law Firm, PLLC, Missoula, Montana
Argued: March 31, 2023
Submitted: April 4, 2023
Decided: October 11, 2023
Filed:
r-GtA•-if
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 This matter comes before the Court on a Petition for Writ of Supervisory Control
filed by Melissa Groo (Groo). Groo asks this Court to exercise supervisory control,
pursuant to M. R. App. P. 14(3), over the Montana Eleventh Judicial District Court, and to
conclude that the District Court’s order of July 22, 2022, denying Groo’s Motion to
Dismiss, was in error.
¶2 The underlying case arises from Groo’s purposeful and substantial use of social
media to affect the business operations of Triple D Game Farm, Inc. (Triple D). In
response, Triple D filed a Complaint and Demand for Jury Trial alleging Tortious
Interference with Contractual Relations and Tortious Interference with Prospective
Economic Advantage claims against Groo.
¶3 Groo moved to dismiss the claims against her for lack of personal jurisdiction. She
contends that the statements she allegedly made on social media about Triple D did not
create the minimum contacts with Montana as a forum nor constitute purposeful availment
of the protections afforded by Montana law—both of which are required for a Montana
court to exercise personal jurisdiction over an out-of-state defendant. The District Court
held that the tort claims accrued in Montana because Groo’s Facebook posts and messages
identified Plaintiffs and tagged Montana residents and that bringing Groo before Montana
courts would comport with the Fourteenth Amendment’s Equal Protection Clause.
2
¶4 We accept supervisory control and restate the issue as follows:
Does Montana have specific personal jurisdiction over Groo regarding Triple D’s
intentional tort claims when the tortious activity allegedly accrued in Montana
despite Groo only interacting with the forum via social media?
¶5 We conclude Montana has specific personal jurisdiction over Groo in this case and
accordingly affirm the District Court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
¶6 Around 1977, Triple D began operations as a wildlife photography farm in Flathead
County, Montana. Lorney “Jay” Deist (Deist) and his spouse, Kimberly Deist, operate the
business. Triple D uses Facebook to promote its business to its approximately 21,000
followers.
¶7 In 2011, Triple D hired Heather Keepers (Keepers) as an animal trainer. In July
2020, Keepers resigned for personal reasons. In August 2020, Keepers corresponded with
a Triple D client, B.M., and recounted a story of poor animal welfare at the farm. Keepers
then acted on B.M.’s suggestion that she contact Groo about the alleged maltreatment.
¶8 Groo is an expert in the field of ethics in wildlife photography. She has received
numerous awards for her contributions to the field and has published manifold articles on
the topic in popular outlets, such as Outdoor Photographer. Groo has openly, repeatedly,
and vehemently criticized photography game farms in her articles. She is a citizen and
resident of the State of New York. Her only physical connections to Montana in the last
five years include four short-term trips to the state.
3
¶9 In August 2020, Keepers, while outside of Montana, used Facebook Messenger to
contact Groo, who also was not physically present in the state. Keepers sent the following
message:
Hello Melissa. As I am not a big fan of yours, this message is difficult for
me to send. But someone mentioned your name yesterday when I filled them
in in [sic] some information. And I got to thinking. While you and I are not
friends, we do have a common enemy....for slightly different reasons, but
also for many of the same. Triple D.
My time spent there was heaven and hell all wrapped in one. I loved those
animals more than anyone could love anything. And I gave them the best I
could with what I was provided with. I worked there for 9 years under the
false pretense that I would soon be taking it over. I held onto that idea Bc I
wanted to change so much of what it was. And is. Many things you are
wrong about but many things you are right about.
I will not disclose any information to you yet. Other than I have ENDLESS
information and evidence and knowledge of evidence of many things. Illegal,
unethical, and just absolutely morally wrong and dishonest.
My goal in reaching out to you is simple. Those animals need to be “saved”
from Jay Deist. Those animals deserve so much better. And especially now
that I’m not there to provide half of what they deserve, a lot of them are now
just sitting and rotting. Some have even died suddenly since I left. (I left
July 9). I am obviously desperate to save them. And well....it’ll take
someone who hates the Triple D as much as I do to do that. And I don’t
mean some animals and then Jay can get more. I mean ALL animals. And
his operation stops entirely. Forever.
Is this something that interests you?
¶10 Groo responded to Keepers less than an hour later. Groo wrote:
Absofuckinglutely.
You are writing me at a very opportune time. i would love to get your help
on taking him down. The things that I have uncovered from lots of research
haunt me more than you can know. Or maybe you can know. I know we
have clashed in the past, but if your first concern is the animals, we have that
in common, and that is HUGE. Let’s try to collaborate to make a better future
4
for them. I am incredibly grateful you reached out. I know how terribly
difficult it must be.
In advance of us speaking more, I want you to know that i am sorry if you
feel attacked by me. It’s just that I was horrified by what I had learned about
Jay Deist and the fate of many of the animals, and you were the very public
face of Triple D. So you got my anger. I felt you were complicit. But now
I see you were not. And that you really do care. I’m sor [sic] sorry to have
misjudged you.
I can’t tell you how grateful I am to hear from you. I have a very special
opportunity for you to speak out and to help make a big change but I can't
say more about it now. Let’s figure out how to move forward on this. I am
away from home right now, and short on time, but will be back home as of
this weekend.
I seriously want to weep with gratitude.
I want very much for Triple D and all game farms to be done. i am with you
200%.
¶11 About an hour later, Keepers responded:
Perfect. Look forward to talking.
Disclaimer: my biggest hesitation is that I signed a nondisclosure agreement
upon employment. (Who tf has animal professionals sign a
nondisclosure???) Anyway. I’d lose every penny from here on out if it meant
ridding him of any and all animals now and future. But I’d rather not get
sued. I’m not sure the total legality of everything. But I am working on
understanding it.
¶12 Later, Groo emailed Keepers:
Heather, I was just doing some reading, and in advance of our talking,
thought you might like to look over this info too:
When an NDA can be broken: [link to website]
Animal Welfare Act enforcement: [link to website]
For violations of Endangered Species Act (which might just apply to the
leopards?) [link to website]
5
You are probably way ahead of me on this, but in case it’s helpful!
I also wanted to mention that I am well connected to many kinds of folks we
could seek out to help guide you. I know animal lawyers, am friends with
Dan Ashe who was head of USFWS for years, I know a Montana FWP legal
counsel, and am friends with the folks that lead captive wildlife programs at
leading animal conservation and welfare orgs. So just know there is lots of
support out there for you if you want it and I can help you connect to your
choice.
M.
¶13 Following this initial exchange with Keepers, Groo used Facebook to share content
pertaining to Triple D and to encourage other users to take explicit actions intended to
affect Triple D. On August 6, 2020, Groo shared an article from Roadsidezoonews.org
titled “Photography game farm Triple D Wildlife cited 6 times for keeping animals in
squalor.” Her post included the following comment: “More on Triple D photo game farm.
What a disgrace to treat these magnificent animals so poorly. It’s time for these wildlife
brothels to be done. Photo by Susan Fox from a visit years ago to Triple D. Please share.”
¶14 Importantly, between August 2–4, 2021, Groo again used Facebook to share
information about Triple D and to direct users to take action that would affect Triple D’s
operations. In that three day period, Groo repeatedly shared a similar message—“I hope
very much that those photographers/artists and companies listed as holding regular or
future workshops there would cancel them immediately. It would be unconscionable to
continue to support this facility”—and, within those messages, tagged various Triple D
6
clients and group leaders.1 (Emphasis added.) Approximately one-quarter of the
individuals and companies tagged by Groo were located in Montana. Others tagged were
not located in Montana, but had ongoing contracts with Triple D that were executed, and
to be performed in, Montana.2
¶15 Triple D alleges that Groo’s social media posts had a detrimental impact on their
business in Montana.
¶16 On January 25, 2022, Triple D filed a Complaint and Demand for Jury Trial alleging
Tortious Interference with Contractual Relations and Tortious Interference with
Prospective Economic Advantage claims against Groo.
1
“A tag is a special kind of link. When you tag someone, you create a link to their timeline. The
post you tag the person in may also be added to that person’s timeline. For example, you can tag
a photo to show who’s in the photo or post a status update and say who you’re with. If you tag a
friend in your status update, anyone who sees that update can click on your friend’s name and go
to their timeline. Your status update may also show up on that friend’s timeline.” Tagging on
Facebook, National Center of State Courts, https://perma.cc/7B3G-ZF8Y. See also Majumdar v.
Fair, 567 F. Supp. 3d 901, 911 (N.D. Ill. 2021) (stating that tagging someone is akin to sending
them a public letter, which strengthens the argument that it is a substantial contact with the forum
allowing personal jurisdiction).
2
The Dissent emphasizes that we base our decision on only three tags of Montana residents posted
to a national forum that also targeted residents of eight other states. See, e.g., Dissent, ¶ 68.
First of all, we do not decide today whether tagging three Montana residents would be
enough for a tort to accrue within Montana when other states’ residents are tagged that have no
connection to Montana. The Dissent mischaracterizes the rest of the tags when it says “there is
simply no record evidence that any of the other persons tagged were actually doing business with
Triple D.” Dissent, ¶ 70. The post itself belies this argument. The post was targeted so that every
individual tagged was either a Montana resident or one doing business in Montana with Triple D.
Other record evidence supports that each of these tags were directed to Montana residents or those
doing business with Triple D. The complaint alleges that Groo directly listed “client group
leaders” in the posts, all of whom had contracts with Triple D. The Deist affidavits similarly
support this.
Further, as shown above in footnote one, the Dissent gets it wrong when it says only three
Montanans were targeted. See Dissent, ¶ 70. Any Facebook friends of those residents also would
have seen the post through that person’s timeline.
7
¶17 On April 18, 2022, Groo filed a Motion to Dismiss pursuant to M. R. Civ. P. 12(b)(2)
and 12(b)(6)—alleging lack of personal jurisdiction and failure to state a claim upon which
relief can be granted, respectively.
¶18 On July 22, 2022, following oral argument, the District Court denied Groo’s Motion
to Dismiss in all respects. The court concluded that “Groo’s social media campaign
resulted in the accrual within Montana of Triple D’s claims against her, and Montana’s
long-arm statute applies.” The court also determined that Groo had the requisite minimum
contacts with Montana and that the court’s exercise of personal jurisdiction over Groo
comported with due process.
¶19 On October 13, 2022, Groo filed a Petition for Writ of Supervisory Control with
this Court. On December 22, 2022, we ordered additional briefing from the parties, and
on March 31, 2023, conducted an oral argument.
STANDARD OF REVIEW
¶20 This Court has supervisory control over Montana courts. Mont. Const. art. VII,
§ 2(2); Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 2019 MT 115, ¶ 5, 395 Mont. 478,
443 P.3d 407, aff’d, 141 S. Ct. 1017 (2021). Supervisory control is an extraordinary
remedy that we exercise on a case-by-case basis. Ford Motor Co., ¶ 5 (citing M. R. App. P.
14(3)). We will assume supervisory control over a district court to direct the course of
litigation if the court is proceeding based on a mistake of law, which if uncorrected, would
cause significant injustice for which appeal is an inadequate remedy. Simms v. Mont.
Eighteenth Jud. Dist. Ct., 2003 MT 89, ¶ 18, 315 Mont. 135, 68 P.3d 678.
8
¶21 This Court reviews a personal jurisdiction ruling de novo. Tackett v. Duncan,
2014 MT 253, ¶ 16, 376 Mont. 348, 334 P.3d 920. In considering the motion, all
well-pleaded allegations in the complaint are taken as true and construed in the light most
favorable to the plaintiff. Meagher v. Butte-Silver Bow City-County, 2007 MT 129, ¶ 13,
337 Mont. 339, 160 P.3d 552. Additionally, affidavits and other evidence may be
considered in a motion to dismiss for lack of personal jurisdiction. Jackson v. Kroll,
Pomerantz & Cameron, 223 Mont. 161, 165, 724 P.2d 717, 720 (1986).
DISCUSSION
¶22 Issue: Does Montana have specific personal jurisdiction over Groo regarding
Triple D’s intentional tort claims when the tortious activity allegedly accrued in
Montana despite Groo only interacting with the forum via social media?
¶23 A court may exercise personal jurisdiction over the parties in a proceeding pursuant
to general (all-purpose) or specific (case-linked) personal jurisdiction. DeLeon v. BNSF
Ry. Co., 2018 MT 219, ¶ 7, 392 Mont. 446, 426 P.3d 1. Both parties agree that Groo is not
subject to general personal jurisdiction in Montana. Whether the District Court can
exercise personal jurisdiction over Groo hinges on the scope of specific personal
jurisdiction.
¶24 Specific personal jurisdiction exists only where two elements have been satisfied.
Threlkeld v. Colorado, 2000 MT 369, ¶ 9, 303 Mont. 432, 16 P.3d 359. First, the suit itself
must arise from the specific circumstances set forth in Montana’s long-arm statute,
M. R. Civ. P. 4(b)(1). Buckles v. Cont’l Res., Inc., 2017 MT 235, ¶ 15, 388 Mont. 517,
402 P.3d 1213. Second, if personal jurisdiction exists pursuant to Rule 4(b)(1), we then
9
determine whether exercising such jurisdiction would comport with traditional notions of
fair play and substantial justice embodied in the Due Process Clause. Threlkeld, ¶ 9.
Montana’s Long-Arm Statute
¶25 The District Court concluded that the first element was satisfied under Rule
4(b)(1)(B), which states that any person is subject to the jurisdiction of Montana courts as
to any claim for relief arising from “the commission of any act resulting in accrual within
Montana of a tort action.” M. R. Civ. P. 4(b)(1)(B). The court determined that Triple D
made a “sufficient showing” that Groo’s social media campaign resulted in the accrual of
the alleged tort actions in Montana.
¶26 This Court’s analysis of accrual has focused on where the events giving rise to the
claims occurred, rather than where the plaintiffs allegedly experienced or learned of their
injuries. Tackett, ¶ 31.
¶27 For example, we concluded in Bi-Lo that a claim did not accrue in Montana based
on the following reasoning:
Bi-Lo sent its check to Alpine in Colorado. Alpine deposited the check into
the account of one of its customers in Colorado. Alpine’s alleged
mishandling of the check occurred in Colorado. Accordingly, Alpine’s
activities did not result in the accrual of a tort action in Montana.
Bi-Lo Foods, Inc. v. Alpine Bank, 1998 MT 40, ¶ 31, 287 Mont. 367, 955 P.2d 154.
¶28 Likewise, in Bird v. Hiller, 270 Mont. 467, 892 P.2d 931 (1995), this Court
determined that claims of fraud, deceit, and conversion related to a dispute over attorney
fees arising from defendant attorney’s representation of the plaintiff accrued in Idaho
because that was where the plaintiff traveled to seek out the defendant’s services and where
10
the defendant made the contested representations. Bird, 270 Mont. at 473, 892 P.2d at 934.
Though the defendant had sent a fee agreement and other letters to the plaintiff’s Montana
address, we held that jurisdiction is not acquired through interstate communications solely
by signing a contract to be performed in another state. Bird, 270 Mont. at 473, 892 P.2d
at 934.3
¶29 Further, in Cimmaron Corp. v. Smith, 2003 MT 73, 315 Mont. 1, 67 P.3d 258,
Cimmaron (a Montana corporation) entered into a collection agreement with Budget
Reader’s Service (a Pennsylvania corporation owned by Pennsylvania resident Gregory
Smith (Smith)) and a sales agreement with Smith’s father, Harold Smith (a Florida
resident). Thereafter, Cimmaron filed suit against Budget and the Smiths in a Montana
district court asserting various claims, including conversion of funds and misappropriation
of assets. Cimmaron, ¶¶ 4, 6, 17. Cimmaron conceded that the defendants’ actions giving
rise to those claims occurred outside Montana; however, Cimmaron argued that because it
was detrimentally affected within Montana by the defendants’ actions, such actions
resulted in the accrual of a tort action within Montana. Cimmaron, ¶ 17.
¶30 This Court disagreed with Cimmaron. We stated that “interstate communication is
an almost inevitable accompaniment to doing business in the modern world, and cannot by
3
In the context of claims for breach of contract, see Milky Whey, Inc. v. Dairy Partners, LLC,
2015 MT 18, 378 Mont. 75, 342 P.3d 13.
The Dissent contends that Milky Whey stands for its proposition. Dissent, ¶ 78. However,
Milky Whey discussed that “[a] tort action arises from a duty imposed by operation of law” that
exists in the absence of a contract—such as the duty to not tortiously interfere with contractual or
prospective business relations. Milky Whey, ¶ 23. When a defendant violates a legal duty by
directing messages into Montana that constitute and cause the full tort in and of themselves, they
can reasonably expect to be haled into Montana courts.
11
itself be considered a contact for justifying the exercise of personal jurisdiction.”
Cimmaron, ¶ 14 (internal quotation and citation omitted) (emphasis added). We held that
the actions that gave rise to the alleged torts occurred outside Montana because the
defendants came into possession of, and allegedly misappropriated, Cimmaron’s accounts
receivable in another state. Cimmaron, ¶ 20.
¶31 Finally, in Ford Motor Co., we concluded that the design defect, failure to warn,
and negligence actions accrued in Montana because “Gullett was driving the Explorer in
Montana when the accident occurred”—even though Ford had manufactured and sold the
vehicle in another state. Ford Motor Co., ¶ 11.
¶32 This Court’s case law makes clear that whether a tort accrued in Montana is
highly-fact specific and dependent on the nature of the alleged tort at issue. Here, the “act”
at issue is Groo’s targeted social media campaign towards a Montana business, Montana
residents, and those with contracts in Montana (a Montana audience), which was calculated
to result in actual damage or loss to Triple D. To prevail on its claims of tortious
interference with prospective economic advantage and tortious interference with
contractual relations, Triple D will still need to prove: “(1) an intentional and willful act;
(2) calculated to cause damage to the plaintiff's business; (3) with the unlawful purpose of
causing damage or loss, without right or justifiable cause on the part of the actor; and,
(4) the act results in actual damage or loss.” Wingfield v. Dep’t of Pub. Health and Hum.
Servs., 2020 MT 120, ¶ 8, 400 Mont. 70, 463 P.3d 452. The Dissent claims that we are
only focusing on Triple D’s harm within Montana to establish accrual within Montana; in
fact, it is not the harm by itself that accrued within Montana, but also Groo’s social media
12
campaign targeted solely towards Montana residents and businesses with contractual
relations in Montana.
¶33 Further, Triple D alleges that Groo’s social media campaign targeted people and
businesses it had (and lost) contracts with, which were executed and performed only in
Montana. By executing and performing contracts within Montana, even if they were
executed over the phone or otherwise, Triple D’s clients were availing themselves of
Montana law and jurisdiction. See Spectrum Pool Prods., Inc. v. MW Golden, Inc.,
1998 MT 283, 291 Mont. 439, 968 P.2d 728. By allegedly (1) intentionally targeting
Montana contracts and residents, (2) to cause damage to Triple D, (3) with the unlawful
purpose of causing damage to Triple D, and (4) actually damaging Triple D, Groo
committed an act that accrued within Montana. M. R. Civ. P. 4(b)(1)(B). The damage
being felt in Montana is not what accrues the tort in Montana, by itself, but also Groo’s
conduct intentionally aimed into Montana and to a Montana audience.
¶34 Contrary to the Dissent’s assertion in ¶ 72, someone reviewing a business or sharing
about their boycott on a national platform would not be subject to personal jurisdiction in
the plaintiff’s forum state. Indeed, if Groo had stopped her online activities after posting
the article referred to in ¶ 13 of this Opinion (or even continued posting articles like this
directed to a national audience) she would not be subject to personal jurisdiction in
Montana today. The post that tipped the scales and subjected her to personal jurisdiction
in Montana was that recounted in ¶ 14 of this Opinion. This post is unique from an online
review of a business or product in that (1) it was not directed to a national audience, but
solely directed into Montana towards Montana residents and those doing business in
13
Montana with Triple D, (2) it encouraged a Montana audience not to do business with
Triple D, and (3) it created by itself, in a Montana resident, a potential cause of action
within Montana for an intentional tort. Groo directed her online activity solely towards a
Montana audience by researching and tagging only those in Montana or those in business
with Triple D in Montana. This is highly distinguishable from a simple review posted
online for anyone to see, which is not targeted toward one particular state or audience.
See, e.g., ¶¶ 56–59 of this Opinion (discussing cases where a person posting on a generally
accessible website not directed to any particular audience in a state did not support
exercising specific personal jurisdiction). For distinguishable cases, see ¶¶ 53–55 of this
Opinion. Each case is highly fact dependent, and we do not today opine on a hypothetical
situation that is not factually developed or before us.
¶35 Groo relies on distinguishable cases for the rule that for specific personal
jurisdiction to lie under Rule 4(b)(1)(B), the defendant must have taken some action while
physically present in Montana that leads to the accrual of the tort. She cites Tackett in
support of this supposed rule based on our holding that “the transmission into Montana of
material statements that the defendant allegedly knows are false or fraudulent is insufficient
by itself to establish accrual of a fraud or deceit action in Montana.” Tackett, ¶ 35
(emphasis added).
¶36 In Tackett, we concluded that Florida defendants formed no jurisdictionally relevant
contacts with Montana. In that case, all but one of the events related to the plaintiff’s
claims took place in Florida. The plaintiff’s single act of permitting his local bank in
Montana to transfer funds to a Florida corporation was insufficient to establish that his tort
14
action accrued in Montana pursuant to Rule 4(b)(1)(B). See generally Tackett. However,
the only act which had any relation to Montana was done by the plaintiff; the defendant
made no contacts with Montana. In Tackett, unlike here, the defendants’ transmission of
materially false statements into Montana did not constitute the full tort in and of itself.
Rather, it was the defendants’ additional acts in Florida that accrued plaintiff’s fraud and
deceit claims. Here, Triple D alleges, and we take as true, that the post itself, which was
directed to a Montana audience, constituted the full tort at issue.
¶37 The Dissent quotes Tackett and other cases (further discussed below) and suggests
the only way to gain personal jurisdiction is if the defendant was in Montana when the
events giving rise to the tort occurred. See Dissent, ¶ 77. However, as these cases show,
the proper analysis is what the defendant’s actions were, and whether those acts led to
events that gave rise to tort claims in Montana.
¶38 For example, in Tackett, the defendant did not act at all with respect to Montana,
only the plaintiff did. See Tackett, ¶¶ 7-12, 15, 34 (“No part of Defendants’ course of
conduct forming the basis of [Plaintiff’s] claims occurred in Montana. Defendants
never . . . sent anything or anyone to Montana.”). Similarly, in Bi-Lo, only the plaintiff
had contact with Montana—the defendant took no action towards Montana, but instead
received a check from the plaintiff in Montana and deposited it in Colorado. See Bi-Lo,
¶¶ 5–6. In Bird, although the defendant had sent communications into Montana, the
alleged tort did not accrue from the communications like they did here, but rather accrued
where the defendant committed “‘a distinct act of dominion’” over the money—in Idaho.
Bird, 270 Mont. at 472, 892 P.2d at 934 (quoting Gebhardt v. D.A. Davidson & Co.,
15
203 Mont. 384, 389, 661 P.2d 855, 858 (1983)). In Threlkeld, defendants had had phone
calls with plaintiffs in Montana, but those contacts were not initiated by defendants, nor
did the tort accrue through those contacts, which accrued only when the horse was treated
and died in Colorado. See Threlkeld, ¶¶ 28, 32. The torts in Cimmaron similarly accrued
when the defendants allegedly misappropriated funds in Pennsylvania. See Cimmaron,
¶¶ 4, 17.
¶39 True, interstate communication which reaches Montana, by itself, is not enough for
a tort to accrue within Montana. See, e.g., Cimmaron, ¶ 14; Tackett, ¶ 35. However, that
is not the instant case. Here, Groo allegedly directed messages into Montana, to Montana
residents and businesses, and to residents of other states doing business in Montana with
Triple D; intentionally and unlawfully intending those messages to interfere with Montana
contracts and potential business; and caused damage to a Montana business by advocating
for others to take action within Montana. This is not merely interstate communication, or
merely a harm accruing within Montana, but a targeted campaign into Montana and
towards a Montana audience.
¶40 Defendants, like Groo, cannot hide behind state lines, intentionally acting into
Montana in such a way to cause torts to accrue in Montana, and not expect to be subject to
Montana courts by virtue of M. R. Civ. P. 4(b)(1)(B). Otherwise, defendants could escape
the reach of Montana courts despite having caused the event within Montana at the heart
of torts related to economic interference—namely, the disruption of current and
prospective business. This interpretation, as will be discussed further below, would
16
significantly hinder the State of Montana’s ability to protect the interests and rights of its
residents.
¶41 Because the events that gave rise to Triple D’s allegations of Tortious Interference
with Contractual Relations and Tortious Interference with Prospective Economic
Advantage could not have accrued in any state other than Montana based on the nature of
Triple D’s business, we conclude that the suit itself arises from the specific circumstances
set forth in Montana’s long-arm statute, M. R. Civ. P. 4(b)(1)(B).
Due Process
¶42 The District Court concluded that the second element for a court’s constitutional
exercise of specific personal jurisdiction was satisfied given the nature and substance of
Groo’s forum-related activities. This limitation on a Montana court’s exercise of personal
jurisdiction results from the Fourteenth Amendment’s Due Process Clause.
U.S. Const. amend. XIV. To determine if exercising personal jurisdiction over a defendant
comports with due process, a court must consider whether: “(1) the nonresident defendant
purposefully availed itself of the privilege of conducting activities in Montana, thereby
invoking Montana’s laws; (2) the plaintiff’s claim arises out of or relates to the defendant’s
forum-related activities; and (3) the exercise of personal jurisdiction is reasonable.” Ford
Motor Co., ¶ 12 (citing Simmons v. State, 206 Mont. 264, 276, 670 P.2d 1372, 1378
(1983)).
¶43 With respect to the first prong, the District Court reasoned that Groo purposefully
availed herself of the benefits and protections of the laws of Montana by taking voluntary
action designed to have an effect in Montana. See Simmons Oil Corp. v. Holly Corp.,
17
244 Mont. 75, 86, 796 P.2d 189, 195 (1990) (defining purposeful availment as a defendant
taking voluntary action “designed to have an effect in the forum”). More specifically, Groo
identified and targeted a Montana audience and had the specific intent of inflicting
economic pain on a Montana business. We agree that Groo’s actions satisfied this first
prong.
¶44 On the second prong, the District Court determined there is no question Groo’s
social media campaign constituted forum-related activities that gave rise to Triple D’s
claims. The court again stressed that Groo tailored her actions to have an effect on Montana
residents and a Montana business. According to the court, there was a nexus between the
content of Groo’s campaign and Triple D’s business—that nexus made it reasonably
foreseeable to Groo that her campaign would reach Montana and have an impact in
Montana. We agree that Groo’s actions satisfied this prong.
¶45 On the third prong, the District Court applied the presumption of reasonableness set
forth by this Court in Ford Motor Co. to evaluate whether Groo presented a compelling
case that exercising jurisdiction would be unreasonable. Ford Motor Co., ¶¶ 12, 28. The
court then evaluated Groo’s case based on seven factors identified by the Ford Motor Co.
Court. Ford Motor Co., ¶ 29.4 The court acknowledged that Groo would face some
hardship in having to defend in Montana, but found that the other factors tend toward
4
The reasonable analysis turns on factors related to fundamental fairness, including, but not
limited to: (1) the extent of the defendant’s purposeful interjection into Montana; (2) the burden
on the defendant of defending in Montana; (3) the extent of conflict with the sovereignty of the
defendant’s state; (4) Montana’s interest in adjudicating the dispute; (5) the most efficient
resolution of the controversy; (6) the importance of Montana to the plaintiff’s interest in
convenient and effective relief; and (7) the existence of an alternative forum.
18
jurisdiction being reasonable: Groo engaged in intentional conduct designed to have a
targeted impact in Montana; Montana exercising jurisdiction would not conflict with the
sovereignty of the State of New York; Montana has an interest in adjudicating the disputes
affecting its residents and businesses; Montana would be the most efficient forum for
resolving the controversy; Montana is important to Triple D’s convenient and effective
relief; and, New York would not serve as a valid alternative forum. Based on that
evaluation, the court concluded that Groo failed to make a compelling case that exercising
jurisdiction would be unreasonable. We agree.
¶46 Following the United States Supreme Court’s ruling in Walden v. Fiore, 571 U.S.
277, 134 S. Ct. 1115 (2014), this Court has also analyzed a court’s exercise of specific
jurisdiction within the context of a tort action under two overlapping lines of inquiry.
Tackett, ¶ 32. First, whether the relationship among the defendant, the forum, and the
litigation arises out of contacts that the defendant created with the forum state. See Tackett,
¶ 32 (citing Walden, 571 U.S. at 284, 134 S. Ct. at 1122). And, second, whether the
plaintiff is the only link between the defendant and the forum or whether the defendant’s
conduct forms the connection with the forum state that is the basis for jurisdiction over
them. See Tackett, ¶ 33 (“A defendant must be haled into court in a forum state ‘based on
his own affiliation with’ the state, not based on the unilateral activity of a plaintiff or on
the random, fortuitous, or attenuated contacts the defendant has with other persons
affiliated with the state.” (quoting Walden, 571 U.S. at 286, 134 S. Ct. at 1123)).
¶47 In Walden, the United States Supreme Court held that a law enforcement agent who
filed a false affidavit in Georgia did not create contacts with the forum state, Nevada, where
19
the individuals affected by that affidavit resided. See Walden, 571 U.S. at 288, 134 S. Ct.
at 1124 (“Petitioner never . . . contacted anyone in, or sent anything . . . to Nevada.”).
Absent the unilateral activity of the plaintiffs, the agent would have made no contact with
the forum state. Walden, 571 U.S. at 291, 134 S. Ct. at 1126.
¶48 Here, unlike in Walden, Groo created the contacts that established a relationship
between herself, the forum, and the litigation. As alleged, Groo repeatedly, intentionally,
and with the aim of causing certain actions in Montana used social media to contact known
and prospective clients of a Montana-based business and its Montana-based operator. In
short, Groo established her own affiliation with the state. She identified other residents of
Montana and those with business relations in Montana; the Walden agent made no such
intentional outreach to residents of Nevada other than the plaintiffs. She tailored messages
to influence those residents; the Walden agent only took actions intended to exclusively
affect the plaintiffs. And, she aspired to steer those residents away from a Montana
business; the Walden agent did not intend to interfere with economic affairs protected by
and reliant upon the enforcement of the laws of Nevada.
¶49 How trying to “Absofuckinglutely” take down a Montana business is not a contact
with the forum state itself is a difficult question to answer. These economic losses were
not the result of a “random, fortuitous, or attenuated,” Walden, 571 U.S. at 286, 134 S. Ct.
at 1123, contact that had an incidental effect of causing someone to renege on a contract—
such as might happen when someone reads one of Groo’s stories about photographing
captive wildlife and decides they no longer want to take part. See, e.g., Melissa Groo, How
20
to Photograph Wildlife Ethically, Nat’l Geographic (July 31, 2019),
https://perma.cc/4FGN-HH8N.
¶50 We applied the Walden inquiry in Tackett and concluded that the defendant’s sole
connection to Montana was one the plaintiff had created and that an injury to the plaintiff
in Montana was an insufficient connection to the forum. Tackett, ¶¶ 34-35. In that case,
like in Walden, the defendants “never traveled to, conducted activities within, or sent
anything or anyone to Montana.” Tackett, ¶ 34. Additionally, the events that gave rise to
the claims at issue in Tackett did not accrue in Montana, notwithstanding the
Montana-based plaintiff having experienced harm in Montana as a result of those events.
Tackett, ¶ 35.
¶51 Here, Groo was not a passive defendant like the ones in Walden and Tackett. She
initiated a social media campaign that solely included Montana residents and those doing
business in Montana, and that targeted a Montana business. As alleged, she tagged
companies and individuals in Montana and urged them not to engage with Triple D’s
Montana-based business. Likewise, as previously discussed, the events that gave rise to
the claims at issue accrued in Montana. It follows that Groo made several and substantial
“jurisdictionally relevant contacts” with Montana. Cf. Walden, 571 U.S. at 288, 134 S. Ct.
at 1124.
¶52 The exercise of specific personal jurisdiction over Groo in this matter comports with
M. R. Civ. P. 4(b)(1)(B) and due process. An alternative conclusion would greatly
diminish the ability of states to protect the interests of their residents in the digital era.
Groo’s emphasis on the need for physical contact with a forum for that forum’s courts to
21
exercise specific personal jurisdiction harkens back to an era before the Internet and even
before interstate transit. Though the United States Supreme Court has not decided a case
directly addressing the limits imposed by the Due Process Clause when personal
jurisdiction is premised on a defendant’s online conduct, Groo offers no case law that due
process serves to protect out-of-state actors who intentionally target and aim to cause harm
in a specific forum.
¶53 Other courts that have considered exercising specific personal jurisdiction over
defendants due to their social media posts have reached a similar conclusion. For example,
in Zehia v. Superior Court, the Court of Appeals of California, Fourth Appellate District,
Division One considered “whether California may exercise specific personal jurisdiction
over a nonresident defendant who sent allegedly defamatory statements to California
residents through private online social media messages with the aim of interfering with the
residents’ personal relationships.” 45 Cal. App. 5th 543, 546–47 (Cal. Ct. App. 2020). The
court found personal jurisdiction was appropriate for three reasons.
¶54 First, the defendant “transmitted the allegedly harassing statements directly to a
California resident (the plaintiff) and the allegedly fabricated conversations directly to
another California resident . . . with knowledge the recipients were California residents.”
Zehia, 45 Cal. App. 5th at 556; see also O’Keefe v. Rustic Ravines, LLC, 2023 U.S. Dist.
LEXIS 3913 at *9 (W.D. Pa.) (distinguishing the use of passive websites from using tools
available on social media platforms such as Facebook to target specific users with a specific
interest or within a particular geographic location); cf. Luster v. Reed, 2022 U.S. Dist.
LEXIS 149665 at *16 (W.D. Pa.) (concluding plaintiff had failed to set forth facts that the
22
defendant intentionally aimed tortious conduct towards the forum state and the “social
media posts purportedly made by Defendant . . . lack[ed] any nexus” to the forum).
¶55 Second, the nature and harm of the alleged tort connected the defendant to the
forum. Zehia, 45 Cal. App. 5th at 557. And third, the alleged tortious behavior had a
“distinct California focus” because “defamatory content with a forum-related focus
strengthens the connection between a nonresident tortfeasor’s conduct and the forum.”
Zehia, 45 Cal. App. 5th at 557-58; see also, e.g., Postacchini v. Liljestrom, 2023 Cal. Super.
LEXIS 23035 at *7 (collecting cases in which California state courts have held that
“websites or social media posts may establish purposeful availment for personal
jurisdiction over a non-resident.”); Majumdar, 567 F. Supp. 3d at 911 (“The fact that a
Twitter mention or Facebook tag is a means of addressing a public rather than private
communication to a particular user does not make it any less an intentional, direct
contact.”); Vangheluwe v. Got News, LLC, 365 F. Supp. 3d 850 (E.D. Mich. 2019)
(asserting personal jurisdiction over a nonresident defendant who “doxed” plaintiff); Lord
v. Smith, 2022 U.S. Dist. LEXIS 225098 (N.D. Ill. 2022) (same).
¶56 The Dissent cites other jurisdictions’ cases for its conclusion that purposefully
directed internet postings can never hale a defendant into another state’s courts.
See Dissent, ¶ 84. Those cases do not stand for that proposition. In Shrader v. Biddinger,
633 F.3d 1235 (10th Cir. 2011), the Tenth Circuit stated that “posting allegedly defamatory
comments or information on an internet site does not, without more, subject the poster to
personal jurisdiction wherever the posting could be read.” Shrader, 633 F.3d at 1241
23
(emphasis added); see also Dissent, ¶ 84. We agree. See, e.g., Cimmaron, ¶ 14 (“by
itself”); Tackett, ¶ 35 (same).
¶57 Nevertheless, this is not that case. Here, we do have the “more” called for in
Shrader: (1) Groo directed electronic activity into the state by tagging Montana residents
and those doing business in Montana; (2) with the manifested intent of engaging in
interactions within the state by encouraging those tagged to not do business with Triple D;
and (3) that activity created, in a person within Montana, a potential cause of action
cognizable in Montana. See Shrader, 633 F.3d at 1240 (citing ALS Scan, Inc. v. Digital
Serv. Consultants, Inc., 293 F.3d 707, 714 (4th Cir. 2002)) (laying out a test for when
specific personal jurisdiction is proper arising out of a person’s internet activity). Indeed,
Shrader is notable for its distinction between two defendants—one of whom would have
been subject to personal jurisdiction had the defendant directed the email at someone in
Oklahoma, as here. Compare Shrader, 633 F.3d at 1244-46 (concluding no specific
personal jurisdiction for defendant who merely posted information on website accessible
everywhere), with Shrader, 633 F.3d at 1247-48 (concluding there would have been
specific personal jurisdiction for defendant who sent email if he had knowingly directed
the email at someone in Oklahoma).
¶58 Many of the Dissent’s other citations are the same. See Johnson v. Arden, 614 F.3d
785, 795 (8th Cir. 2010) (merely posting on a generally accessible website not directed at
Missouri is not enough to confer personal jurisdiction); Blessing v. Chandrasekhar, 988
F.3d 889, 906 (6th Cir. 2021) (posting on the internet without directing any
communications to plaintiffs or “anyone else in Kentucky” insufficient to confer personal
24
jurisdiction); see also Revell v. Lidov, 317 F.3d 467, 473-75 (5th Cir. 2002) (same); Young
v. New Haven Advocate, 315 F.3d 256, 263 ( 4th Cir. 2002) (same).
¶59 Similarly, the Dissent points to Axiom Foods, Inc. v. Acerchem Int’l, Inc., 874 F.3d
1064 (9th Cir. 2017), where, although an email list had 10 California residents, the
defendant did not expressly aim its intentional act into California. See Dissent, ¶ 84. The
case now before us, however, is more akin to a more recent Ninth Circuit decision, Ayla,
LLC v. Alya Skin Pty. Ltd., 11 F.4th 972 (9th Cir. 2021), where an Australian skincare
company directed social media advertisements to America, and therefore subjected itself
to personal jurisdiction in California for trademark infringement resulting from the
advertisements.
¶60 The general rule from the Dissent’s cases is clear—and we agree—simply posting
information on the internet for anyone to see is not enough by itself to establish personal
jurisdiction over a defendant. However, when a defendant engages in a targeted campaign
against a Montana business, tags Montana residents and those doing business in Montana,
and encourages them to refrain from doing or continuing actions in Montana, that person
has purposefully directed conduct into Montana such that the Due Process Clause allows
them to be haled into Montana courts.
¶61 This Opinion, like Zehia, reflects the fact that the ease with which a nonresident can
use social media to intentionally and substantially interfere with a resident’s interests and
rights is not a barrier to a forum’s exercise of specific personal jurisdiction.
¶62 The Complaint alleges that Groo stated an intent to destroy a Montana business.
She acted on that intent with a targeted social media campaign. And—though she acted on
25
that intent with minimal effort—she nevertheless attempted to rally Montanans and others
to undermine a Montana business.
CONCLUSION
¶63 Groo petitioned this Court for supervisory control on the basis that the District Court
was proceeding based on a mistake of law, thereby causing a substantial injustice for which
she has an inadequate remedy on appeal. M. R. App. P. 14(3). We conclude the District
Court is not proceeding under a mistake of law and agree that it has personal jurisdiction
to resolve this dispute.
¶64 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE
Justice Laurie McKinnon, dissenting.
¶65 I dissent.
¶66 The Due Process Clause of the Fourteenth Amendment and Montana’s long-arm
statute protect nonresident defendants from being haled into a state court and bound by its
judgments when they have no connection whatsoever to the forum state, regardless of what
they have said about a resident plaintiff. Groo may have targeted Triple D, but she has no
relationship to Montana and she did not target the State of Montana. This case can be
26
resolved by applying––correctly and carefully––Montana’s long-arm statute and
precedent. Triple D’s tort claims are based on communications occurring outside Montana
between nonresident individuals on a national forum specific to the wildlife photography
industry. This Court has held other more specific mediums of communication––telephone,
fax, emails, letters––which directly targeted a Montana resident were insufficient to
exercise personal jurisdiction. Groo’s three “tags” on a public social media present an even
less compelling case for exercising personal jurisdiction. I would conclude that the torts
pled by Triple D do not arise from the type of conduct enumerated in Montana’s long-arm
statute. However, even if they did, I would conclude that exercising jurisdiction over Groo
does not comport with due process.
A. Record Facts.
¶67 Preliminarily, some discussion of the particular out-of-state communications is
important. As the Court notes, the first communication occurred in August 2020, when
Keepers sent Groo a private Facebook message about her concerns with Triple D. Groo
responded with a private message that she was interested in helping Keepers and sent
Keepers links to publicly available information regarding nondisclosure agreements.
These were private messages not posted publicly, not sent to or from a Montana resident,
not sent from Montana, and not sent to anyone that had contact with Triple D.
¶68 Next, Groo posted a comment on a Facebook post by Keepers. Keepers’ post
concerned an inspection report of Triple D’s facility. At the time, Keepers was not a
resident of Montana and Groo’s comment made no mention of Montana and was not
directed at Montana residents. Groo also reposted a story from Roadsidezoonews.org that
27
described how Triple D had been cited 6 times for keeping their animals in squalor. While
mentioning Triple D, Groo’s post did not mention Montana and was not targeted to
Montana residents.
¶69 Finally, Groo posted once on Facebook: “I hope very much that those photographers
and companies listed as holding future workshops there would cancel them immediately.
It would be unconscionable to continue to support this facility.” An edit history of this
comment shows that Groo tagged individuals in the wildlife photography industry from
Utah, California, Idaho, Tennessee, North Carolina, Virginia, Canada, Florida, and
Montana. Three of the tags went to Montana residents. There is no record that these three
residents ever read the post that Groo tagged.
¶70 Thus, based on these record facts, the only purported connection Groo had to
Montana were the three tags to Montana residents attached to her Facebook post. The
conduct forming the basis of Triple D’s alleged torts all occurred outside of Montana,
between nonresident individuals, and was not targeted to the State of Montana as a forum.
Groo is free to lodge a social media campaign against anyone and anything she chooses,
and she may be held accountable for her actions in a state whose long-arm statute includes
such conduct and under circumstances demonstrating she has minimum contacts with the
state. However, that Groo disparaged Triple D, a Montana resident, cannot––by itself––
serve as the basis for exercising personal jurisdiction, unless the campaign was directed at
the State of Montana and a Montana audience.1 The Court’s attempt to recast the facts to
1
An example of a media campaign targeting a Montana audience and demonstrating a connection
to the State of Montana would be a nonresident defendant sending out communications targeting
28
suit its outcome by making an argument that Groo has targeted a Montana resident by using
three Facebook tags, is a distortion of both federal precedent and this Court’s, which
collectively hold that (1) suffering damages in Montana is not, by itself, sufficient to confer
jurisdiction under the accrual section of Montana’s long-arm statute, and (2) three
Facebook tags to Montana residents do not constitute sufficient “minimum contacts” which
comport with due process.
¶71 Importantly, the record simply does not support the Court’s conclusion that
“[a]pproximately one-quarter of the individuals and companies tagged by Groo were
located in Montana.” Opinion, ¶ 14. Groo’s edit history from her Facebook account clearly
demonstrates that her tags were sent to only three people who resided in Montana: Barbara
Eddy, Julie Chapman, and Bar W Guest Ranch––a total of three tags. Further, and contrary
to the Court’s repeated focus on Triple D being “targeted,” there is simply no record
evidence that any of the other persons tagged were actually doing business with Triple D.
In its clear and obvious objection to having a Montana resident “targeted,” the Court fails
to focus on the appropriate inquiry as set forth in Montana and federal precedent. The
question is not whether Groo targeted a specific Montana resident through her media
campaign; rather, it is whether three tags on a social media post demonstrates she purposely
availed herself of the privilege of conducting activities within Montana, thus invoking the
benefits and protections of Montana law which assures she will not be haled into Montana
Montana for the purpose of influencing a Montana election. These out-of-state communications
target the State of Montana and Montana voters and, by doing so, establish the necessary minimum
contacts with the forum State of Montana.
29
solely because of random, fortuitous, or attenuated contacts. The Court obfuscates these
fundamental considerations, indeed distinctions, underlying a personal jurisdiction and due
process inquiry and instead focuses its inquiry on the fact that a Montana business has
alleged it suffered injuries in Montana from acts occurring outside of Montana. However,
being attacked by acts and conduct occurring outside the state cannot alone serve as a basis
to hale that person into Montana courts. The Court’s error is a fundamental distortion of
our carefully drawn and clear precedent interpreting the accrual section of Montana’s long-
arm statute and of due process principles enunciated by the Supreme Court in Walden.
B. Montana’s Long-arm Statute.
¶72 Before addressing principles of due process, which I have already briefly touched
upon in setting forth the record facts, Montana’s long-arm statute must be considered. The
cause of action must arise from the type of activity enumerated in Montana’s long-arm
statute as a first step to establishing personal jurisdiction. A defendant is not subject to
personal jurisdiction in Montana if her alleged conduct falls outside one of the enumerated
categories, regardless of whether federal due process might otherwise be satisfied. Here,
Triple D invokes only one provision of the Montana long-arm statute, arguing that its
causes of action “accrued” in Montana. Thus, the relevant section of M. R. Civ. P.
4(b)(1)(B), provides “any person is subject to the jurisdiction of Montana courts as to any
claim for relief arising from the doing personally, or through an employee or agent, of any
of the following acts: . . . (B) the commission of any act resulting in accrual within Montana
of a tort action.” As the communications constituting the basis of the tort were not aimed
at a Montana audience and occurred outside of Montana between nonresidents, Triple D
30
argues the requirements of Montana’s long-arm statute were satisfied because the
communications “reached into Montana” and the tort “accrued” in Montana because it
suffered economic hardship in Montana. The Court has failed to articulate its basis for
determining Montana’s long-arm statute has been satisfied other than holding that Groo’s
social media campaign affected a Montana business. Here, while the injury occurred in
Montana, the conduct giving rise to the causes of action occurred outside of Montana
among nonresidents. This Court, until now, has been clear that suffering an injury in
Montana from out-of-state conduct does not meet the requirements of Montana’s long-arm
statute under M. R. Civ. P. 4(b)(1)(B).
¶73 While the Court refers to several relevant cases and attempts to distinguish them,
the Court remains unenlightened by their holdings. The internet by itself allows the
allegedly tortious communication to be viewed anywhere. This does not mean that the tort
was committed everywhere. The Court’s conclusion that a social media campaign
targeting a resident is sufficient to invoke jurisdiction would make the requirements for
exercising personal jurisdiction meaningless, not to mention invite the unreasonable
consequence of having personal jurisdiction exist based on three social media tags when it
would not exist for other more direct and specific forms of contact. The Court’s analysis
would mean that anyone who posted over the internet a “review” of a business, entity, or
product could be haled into the plaintiff’s forum court based entirely on the act of having
posted a review. A review on the internet directly targets an entity or product and, under
the Court’s analysis, would provide a basis for exercising personal jurisdiction. Thus, for
example, anyone who joins or posts advocating a boycott of a company or product, posts a
31
negative review on Amazon, or suggests people should not buy Bud Light2 are subject to
personal jurisdiction and could be sued in the plaintiff’s forum court. The problem is the
Court has gutted the requirements undergirding personal jurisdiction, with the result that
any “reviewer” or “boycotter” is subject to jurisdiction everywhere—because the internet
is everywhere.
¶74 Our precedent does not support the Court’s conclusion that Triple D’s alleged
economic torts accrued in Montana.3 In Bird, the Birds, who were Montana residents, were
involved in an automobile accident in Idaho. They hired an Idaho attorney who sent a
contingency fee agreement which was signed in Montana. When a disagreement arose
with their Idaho counsel, the Birds filed suit in Montana alleging claims of fraud, deceit,
and conversion. The Birds maintained that these claims accrued in Montana because that
is where the Idaho attorney sent documents to sign and where the original fee agreement
was signed. We concluded, however, that the Idaho attorney sending these documents into
Montana did not result in the accrual of the claims here and did not establish a sufficient
connection between the nonresident defendant and Montana. We held that the conduct
underlying the fraud, deceit, and conversion claims all accrued in Idaho because that is
where the Idaho attorney allegedly asserted unauthorized control. We held that the
2
In April 2023, Bud Light was featured in a social media promotion by transgender influencer,
Dylan Mulvaney. There were numerous requests over social media to boycott Bud Light and
Anheuser-Busch suffered monetary losses to its North American revenue.
3
The Court misses the mark when it construes my dissent interpreting our precedent as providing
“the only way to gain personal jurisdiction is if the defendant was in Montana when the events
giving rise to the tort occurred.” Opinion, ¶ 37. What our precedent clearly establishes is that
there is no personal jurisdiction over torts where the act giving rise to the claims did not occur in
Montana and the fact that an injury was suffered in Montana is insufficient to confer jurisdiction.
32
representations occurred in Idaho and that although documents were sent to Montana
residents, “jurisdiction is not acquired through interstate communications pursuant to a
contract to be performed in another state.” Bird, 270 Mont. at 473, 892 P.2d at 934. If
legal documents sent to a Montana resident and executed in Montana is insufficient to
confer Montana jurisdiction, then certainly three Montana Facebook tags which are part of
a national forum specific to wildlife photography is, likewise, insufficient.
¶75 In Bi-Lo, Bi-Lo Foods, a Montana corporation, entered into negotiations with a
Colorado company for the purchase of refrigeration equipment. The Colorado company
instructed Bi-Lo to deposit earnest money into an escrow account at Alpine Bank, a
Colorado corporation. Bi-Lo made the deposit but thereafter negotiations broke down and
Bi-Lo demanded the escrow money be returned. Bi-Lo filed suit in Montana arguing that
its claims accrued in Montana because, “by cashing its check and disbursing the funds to
[the Colorado company], Alpine [Bank] took voluntary actions which were calculated to
have an effect in Montana, did cause injury in Montana to a Montana resident, and should
have caused Alpine to reasonably anticipate being haled into court in Montana.” Bi-Lo,
¶ 21. These are the same arguments Triple D makes today. However, we rejected Alpine’s
argument that because the injury occurred in Montana there was personal jurisdiction under
our long-arm statute, concluding instead that all acts giving rise to Bi-Lo’s claims occurred
in Colorado and, “[a]ccordingly, Alpine’s activities did not result in the accrual of a tort
action in Montana.” Bi-Lo, ¶¶ 27, 31. Here, as well, only the injury suffered by Triple D
occurred in Montana—all acts giving rise to the torts occurred outside of Montana between
nonresidents.
33
¶76 In Threlkeld, the Threlkelds raised and bred horses in Montana. After one of the
horses became ill, the Threlkelds contacted Colorado State University’s Veterinary
Teaching Hospital and were given a recommended course of treatment and assured that the
Hospital could provide such treatment. Upon this assurance, the Threlkelds took their
horse to the University for treatment. The horse died the day after it was admitted to the
hospital. The Threlkelds filed suit in Montana alleging deceit, negligent misrepresentation
or fraud, and malpractice. We held that the Threlkelds’ claims “relate entirely to services
to be performed in Colorado and the mere existence of interstate communications relating
to those services does not provide a basis for personal jurisdiction over [the Colorado
defendants].” Threlkeld, ¶ 30.
¶77 In Cimmaron, Cimmaron, a Montana corporation, entered into a contract with a
Pennsylvania corporation and a Florida resident. Cimmaron filed suit against the
corporation and Florida resident alleging conversion of funds and misappropriation of
assets. Cimmaron conceded that the defendants’ actions giving rise to the claims occurred
outside of Montana but argued that because it was detrimentally affected by the actions in
Montana, the actions resulted in the accrual of the tort claim in Montana. Cimmaron, ¶ 17.
Relying on Bird, we held that the actions which gave rise to the alleged torts occurred
outside Montana and noted that “personal jurisdiction is not acquired through interstate
communications made pursuant to a contract that is to be performed in another state.”
Cimmaron, ¶¶ 14, 20 (emphasis in original). We held that “interstate communication is an
almost inevitable accompaniment to doing business in the modern world, and cannot by
itself be considered a ‘contact’ for justifying the exercise of personal jurisdiction.”
34
Cimmaron, ¶ 14 (quoting Edsall Constr. Co. v. Robinson, 246 Mont. 378, 382, 804 P.2d
1039, 1042 (1991), in turn quoting Simmons, 244 Mont. at 91, 796 P.2d at 199.).
¶78 More recently, in Tackett, this Court again reiterated that what is significant under
an “accrual” analysis is where the events giving rise to the tort claims occurred. Tackett
alleged two Florida defendants had procured a wire transfer from him relating to the sale
of Florida property. Tackett asserted that his injury arose from a transaction which
occurred in Lincoln County and, therefore, the Montana court had personal jurisdiction.
We held that defendants’ only link to Montana was Tackett and no part of the defendants’
course of conduct forming the basis of Tackett’s claims occurred in Montana. Tackett,
¶ 34. We explained “the transmission into Montana of material statements that the
defendant allegedly knows are false or fraudulent is insufficient by itself to establish
accrual of a fraud or deceit action in Montana.” Tackett, ¶ 35. The Court explained:
In analyzing accrual in each of these cases, we focused on where the events
giving rise to the tort claims occurred, rather than where the plaintiffs
allegedly experienced or learned of their injuries. In Bi-Lo, Alpine’s alleged
mishandling of Bi-Lo’s check took place in Colorado. In Bird, [the Idaho
attorney’s] alleged fraud, deceit, and conversion arose from actions that [the
attorney] took in Idaho. In Threlkeld, the defendant’s alleged malpractice
and misrepresentations regarding the horse’s treatment occurred in Colorado.
In Cimmaron, the defendants’ conversion and misappropriation of funds
occurred in Pennsylvania.
Tackett, ¶ 31 (emphasis added). Further, drawing on federal due process principles, we
definitively rejected Tackett’s contention that his alleged injury (the loss of the funds he
paid the defendant) was sufficient to exercise personal jurisdiction holding “[m]ere injury
to a forum resident is not a sufficient connection to the forum.” Tackett, ¶ 35 (citing
Walden, 571 U.S. at 290, 134 S. Ct. at 1125; accord Cimmaron, ¶¶ 17-20 (the mere fact
35
that the plaintiff was detrimentally affected within Montana by defendant’s actions outside
Montana is not sufficient to establish accrual of a tort action within this state)).
¶79 Thus, this Court has consistently held that, even though a Montana resident suffers
injuries in Montana, there is no personal jurisdiction over torts where the acts giving rise
to the claims did not occur in Montana. We reaffirmed this important principle again in
Milky Whey. Milky Whey is a Montana corporation that operates as a dairy broker
supplying food manufacturers in the U.S. and Canada with dairy commodities purchased
from suppliers and manufacturers. Dairy Partners is a dairy supply company located in
Minnesota. “From 2010 to 2013, Milky Whey and Dairy Partners completed nine purchase
orders through telephone, fax, or e-mail, valuing over $181,000.” Milky Whey, ¶ 4. One
of Milky Whey’s purchases was for cheese that Dairy Partners shipped to its warehouse in
Salt Lake City. The cheese became moldy and Dairy Partners refused to reimburse Milky
Whey for the product. Milky Whey filed suit in Montana alleging breach of contract,
breach of warranty, unjust enrichment, and breach of obligation to pay. We held there was
no personal jurisdiction over Dairy Partners because “a tort does not accrue in Montana
when all acts giving rise to the claims occur in another state.” Milky Whey, ¶ 24. The
Court explained that “[h]ere, negotiation, transfer of money, and transfer of product all
occurred outside Montana . . . . Focusing on the place where the services were rendered
reveals that the alleged [tort] did not accrue in Montana.” Milky Whey, ¶ 24.
¶80 The Court unsuccessfully tries to distinguish the present controversy from this
well-established precedent. The only distinction here, however, is with the method of
communication––and we ought not allow technological innovation to subvert the
36
fundamental principles well-grounded in Montana’s long-arm statute and constitutional
due process. If a nonresident defendant initiating most of nine direct communications by
telephone, fax, and email with a Montana corporation selling $181,000 worth of product
to the Montana corporation is insufficient to establish personal jurisdiction, then Groo’s
out-of-state acts giving rise to the alleged torts and her three tags cannot establish personal
jurisdiction. We have clearly held the mere fact that the plaintiff was detrimentally affected
by a nonresident’s out-of-state actions is insufficient to establish personal jurisdiction
under the accrual section of Montana’s long-arm statute.4 The key question is did Groo
intentionally target Montana or a Montana audience, not whether she intentionally targeted
a specific Montana resident or business. I would decline to exercise personal jurisdiction
under our long-arm statute because acts committed outside Montana do not “accrue” within
Montana simply because the injury is suffered in Montana. Our caselaw has been clear,
consistent, and well-reasoned until now. Rule 4(b)(1)(B) is not satisfied where only the
injury is suffered in Montana. No other enumerated section applies. Groo’s alleged social
media campaign may be relevant to a due process inquiry, but it does not establish a basis
for exercising personal jurisdiction under Montana’s long-arm statute and our case law.
4
The Court inappropriately analogizes the present facts to those of Ford Motor Co., where we held
the tort accrued in Montana. In Ford Motor Co., this Court held there was personal jurisdiction
because the tort (design defect, failure to warn, and negligence) arose from a vehicle accident
occurring in Montana. Thus, the tort obviously accrued in Montana and satisfied Montana’s
long-arm statute. The significance of Ford Motor Co. was that we further determined exercising
personal jurisdiction over Ford was constitutionally permissible because Ford did substantial
business in Montana, including advertising, selling, and servicing the vehicle the suit claimed was
defective. Ford Motor Co., ¶¶ 23, 27. Ford Motor Co. does not overrule or question this Court’s
precedent; rather it built on previously established rules of law and the Supreme Court’s decision
in Walden. However, its stream of commerce discussion and accrual of the tort do not inform the
present analysis.
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Under Montana precedent, suffering damages alone in Montana will not suffice to establish
the tort accrued in Montana. The Court cites the elements of tortious interference of
contract, which is not unlike other torts requiring that the act results in actual damage or
loss. Opinion, ¶ 32. However, for purposes of personal jurisdiction, the inquiry is clear
that where damages are suffered is inconsequential. There is no personal jurisdiction either
under Montana’s long-arm statute or our case law if all acts constituting the tort—aside
from suffering injuries––occurred outside of Montana. The Court’s decision to the
contrary is a radical departure from our precedent.
C. Federal Due Process Inquiry.
¶81 If personal jurisdiction, does not exist under Montana’s long-arm statute, further
analysis under the due process prong is unnecessary. Cimmaron, ¶ 10. In any event,
exercising jurisdiction over Groo would not comport with the Due Process Clause of the
Fourteenth Amendment. Due process requires that an out-of-state defendant have
“minimum contacts” with the forum state sufficient to satisfy “traditional notions of fair
play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct.
154, 158 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S. Ct. 339, 343 (1940)).
The defendant must “purposefully avail[] [herself] of the privilege of conducting activities
within the forum State, thus invoking the benefits and protections of its laws,” which
“ensures that a defendant will not be haled into a jurisdiction solely as a result of ‘random,’
‘fortuitous,’ or ‘attenuated’ contacts . . . .” Burger King Corp. v. Rudzewicz, 471 U.S. 462,
475, 105 S. Ct. 2174, 2183 (1985) (internal citations omitted).
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¶82 The “minimum contacts” inquiry required before a court can exercise personal
jurisdiction focuses on “the relationship among the defendant, the forum, and the
litigation.” Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775, 104 S. Ct. 1473, 1478
(1984) (quoting Shaffer v. Heitner, 433 U.S. 186, 204, 97 S. Ct. 2569, 2580 (1977)). “For
a State to exercise jurisdiction consistent with due process, the defendant’s suit-related
conduct must create a substantial connection with the forum State.” Walden, 571 U.S. at
284, 134 S. Ct. at 1121. Two related aspects of this necessary relationship are relevant.
First, the relationship must arise out of contacts the defendant herself creates with the forum
state. Burger King, 471 U.S. at 475, 105 S. Ct. at 2183-84. Further, the Court has
“consistently rejected attempts to satisfy the defendant-focused ‘minimum contacts’
inquiry by demonstrating contacts between the plaintiff (or third parties) and the forum
State.” Walden, 571 U.S. at 284, 134 S. Ct. at 1122. Due process limits on the State’s
adjudicative authority protect the liberty of the nonresident defendant––not the
convenience of plaintiffs or third parties. See World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286, 291-92, 100 S. Ct. 559, 564 (1980).
¶83 Second, and importantly here, the “minimum contacts” analysis “looks to the
defendant’s contacts with the forum State itself, not the defendant’s contacts with persons
who reside there.” Walden, 571 U.S. at 285, 134 S. Ct. at 1122. Due process “does not
contemplate that a state may make binding a judgment in personam against an
individual . . . with which the state has no contacts, ties, or relations.” International Shoe,
326 U.S. at 319, 66 S. Ct. at 160. Thus, the “minimum contacts” analysis focuses on the
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defendant’s contact with the forum, not the defendant’s contacts with persons who reside
there.
¶84 In Walden, the Court reversed the Ninth Circuit Court of Appeals because the lower
court “shift[ed] the analytical focus from [the nonresident defendant’s] contacts with the
forum to his contacts with the [resident plaintiff].” Walden, 571 U.S. at 289, 134 S. Ct. at
1124. The Court rejected the argument that “a defendant creates sufficient minimum
contacts with a forum when he (1) intentionally targets (2) a known resident of the forum
(3) for imposition of an injury (4) to be suffered by the plaintiff while she is residing in the
forum state.” Walden, 571 U.S. at 289 n. 8, 134 S. Ct. at 1154 n. 8. The proper question,
the Court held, was “not where the plaintiff experienced a particular injury or effect but
whether the defendant’s conduct connects him to the forum in a meaningful way.” Walden,
571 U.S. at 290, 134 S. Ct. at 1125.
¶85 Contrary to this Court’s recitation of distinguishable state authority from lower
courts in other states, there is not a single case in which a court has extended, without more,
personal jurisdiction based on a defendant’s allegedly tortious postings on social media.
The weight of authority supports a conclusion contrary to the Court’s. Federal Courts of
Appeals have routinely held that “posting allegedly defamatory comments or information
on an internet site does not, without more, subject the poster to personal jurisdiction
wherever the posting could be read (and the subject of the posting may reside).” Shrader,
633 F.3d at 1241. In Axiom, the Ninth Circuit held in a copyright infringement case that a
California court lacked specific jurisdiction over a United Kingdom company that sent an
allegedly infringing newsletter to 343 email addresses, which included no more than 10
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recipients in California. The court in Axiom held the “[nonresident defendant] sent one
newsletter to a maximum of ten recipients located in California, in a market where [the
nonresident defendant] ha[d] no sales or clients. The alleged infringement barely
connected [the nonresident defendant] to California residents, much less to California
itself.” Axiom, 874 F.3d at 1071. The 8th Circuit has held that “[p]osting on the internet
from Colorado an allegedly defamatory statement including the name ‘Missouri’ in its
factual assertion does not create the type of substantial connection between [the
nonresident defendant] and Missouri necessary to confer specific personal jurisdiction.”
Johnson, 614 F.3d at 797. In Blessing, the Sixth Circuit held that there was no evidence
that the users posted the tweets hoping to reach Kentucky specifically as opposed to the
Twitter followers generally, although the resident plaintiffs alleged that those messages
caused third parties to “dox” the plaintiffs in Kentucky. The Sixth Circuit held that the
United States Supreme Court has “consistently rejected attempts to satisfy the defendant-
focused ‘minimum contacts’ inquiry by demonstrating contacts between . . . third parties
and the forum State.” Blessing, 988 F.3d at 906. Thus, Courts of Appeals have declined
to subject defendants to jurisdiction where the communication was not specifically directed
to the forum state. The Fourth and Fifth Circuits have followed a similar analysis. See
also Revell, 317 F.3d at 475 (nonresident defendant not subject to jurisdiction in Texas
because allegedly tortious online post about airplane bombing “was presumably directed
at the entire world” and “certainly it was not directed specifically at Texas, which has no
especial relationship to the [airplane bombing].”); Young, 315 F.3d at 258-59 (declining to
subject two Connecticut-based newspapers to jurisdiction in Virginia for publishing online
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articles defaming a Virginia prison warden because they “did not manifest an intent to aim
their websites or the posted articles at a Virginia audience.”).
¶86 The error in the Court’s analysis is its failure to distinguish between targeting a
specific individual and targeting the State of Montana. The first, without the necessary
minimum contacts, is insufficient to confer specific jurisdiction. Had Groo targeted the
State of Montana and Montana audiences, specific jurisdiction would be appropriate. But,
here, Groo tagged three individuals pursuant to her national forum specific to the wildlife
photography industry. Neither the facts nor the law support the Court’s decision.
¶87 I would, first, hold that the alleged torts do not satisfy the “accrual” language of
Montana’s long-arm statute as interpreted and well-established by this Court. Today’s
decision will mark a drastic and unwise departure from basic principles of specific personal
jurisdiction. I would, as this Court should, reject Groo’s purposeful availment and
injury-related arguments. Groo did not direct her communications to a Montana audience;
rather, her communications were directed to a national audience of wildlife photographers.
Triple D does not seriously allege Groo has contacts in Montana. Secondly, based on
Walden, guidance from federal Courts of Appeals, and our own precedent, it is my opinion
that there are insufficient minimum contacts between Groo and Montana to comport with
due process constitutional requirements. A nonresident defendant who makes statements
on social media about a forum plaintiff is not subject to personal jurisdiction in the forum
state unless she specifically targets the forum state itself or specifically targets residents of
the state as the audience. This is true even if the nonresident defendant intended to injure
the plaintiff and knew the plaintiff’s injury would occur in the forum state. In my view,
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the Court’s decision is wrongly tethered to the injury of a targeted Montana resident which,
without more, is insufficient to establish specific personal jurisdiction.
/S/ LAURIE McKINNON
Justices Ingrid Gustafson and Dirk Sandefer join in the Dissent of Justice Laurie McKinnon.
/S/ INGRID GUSTAFSON
/S/ DIRK M. SANDEFUR
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