Kubyn v. Follett

[Cite as Kubyn v. Follett, 2019-Ohio-3152.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
STACEY G. KUBYN, et al., : OPINION
Plaintiffs-Appellants, :
CASE NO. 2019-G-0194
- vs - :
TAMARA FOLLETT, :
Defendant-Appellee. :
Civil Appeal from the Geauga County Court of Common Pleas, Case No. 2018 P
000706.
Judgment: Reversed and remanded.
R. Russell Kubyn, Kubyn & Ghaster, LLP, 8373 Mentor Avenue, Mentor, OH 44060
(For Plaintiffs-Appellants).
L. Bryan Carr, Carr, Feneli & Carbone Co., L.P.A., 1392 S.O.M. Center Road, Mayfield
Heights, OH 44124 (For Defendant-Appellee).
MATT LYNCH, J.
{¶1} Plaintiffs-appellants, Stacey G. Kubyn and R. Russell Kubyn, appeal the
Judgment of the Geauga County Court of Common Pleas, granting defendant-appellee
Tamara Follett’s, Motion to Dismiss the Complaint for lack of personal jurisdiction. For
the following reasons, we reverse the decision of the court below.
{¶2} On September 14, 2018, the Kubyns filed a Complaint for Money,
Temporary Restraining Order, Injunctive Relief for Copyright Infringement, and Other
Equitable Relief in the Geauga County Court of Common Pleas against Follett.
{¶3} On November 15, 2018, the Kubyns filed a First Amended Complaint for
Compensatory and Punitive Damages, Injunctive Relief, and Other Equitable Relief for
Defamation, Copyright Infringement, and Other Tortious Conduct. The Complaint
identified the Kubyns as dog breeders doing business as Esquire Caucasian Mountain
Shepherd Dogs USA in Geauga County, and Follett as a Canadian resident who breeds
similar dogs doing business as ThunderHawk Caucasians. The Complaint was based
on the following alleged conduct:
Defendant Follett has engaged in underhanded, illegal, unethical,
fraudulent, harassing and otherwise improper behavior and
activities including, but not limited to, posting on Facebook her
desire for the death of Defendant [sic] Stacey G. Kubyn, and
requesting other people to post that they too wished death to befall
Defendant Stacey G. Kubyn; embedding keywords on pages of her
website such as “Stacey Kubyn” and “Khan” so that internet search
engines will direct people to her website for her own financial gains
and personal vendetta, ranting defamatory statements against the
Plaintiffs, calling the Plaintiffs foul names, and using the Plaintiffs’
aforementioned pictures and other media falsely, and fraudulently
claiming right of publication thereof.
{¶4} The Amended Complaint further alleged jurisdiction over Follett existed
pursuant to Ohio’s long-arm statute “as she published and/or aided and/or abetted in
the publishing of defamatory statements on the internet directed at the Plaintiffs, Ohio
residents; and other Ohio residents have seen and/or could see the defamatory
statements, * * * as such acts constitute causing tortious injuries by acts in the State of
Ohio * * *.”1
{¶5} On November 23, 2018, Follett filed a Motion to Dismiss, pursuant to Civil
Rule 12(B)(2), on the grounds that “personal jurisdiction is lacking.”
1. The First Amended Complaint contained nine causes of action: Misappropriation of Proprietary and
Intellectual Interests (Count One); Violations of Ohio Revised Code Chapter 2741 (Count Two); Tortious
Interference with Business Contracts and Relationships (Count Three); Federal and State Trade
Infringements and Unfair Competition (Count Four); Quantum Meruit/Unjust Enrichment (Count Five);
Fraud/Misrepresentation (Count Six); Injunctions (Count Seven); Invasion of Privacy/False Light (Count
Eight); and Defamation (Count Nine).
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{¶6} On December 21, 2018, the Kubyns filed a Brief in Opposition to Motion to
Dismiss.
{¶7} On January 17, 2019, Follett filed a Reply to Plaintiffs’ Brief in Opposition
to Motion to Dismiss.
{¶8} On February 4, 2019, the trial court granted the Motion to Dismiss, ruling
that “Plaintiffs have not adequately established sufficient minimum contacts between
Geauga County and the Defendant to invoke this Court’s jurisdiction over the Canadian
Defendant (regardless of whether the Defendant is a U.S. citizen or not).”
{¶9} On February 5, 2019, the Kubyns filed a Notice of Appeal. On appeal,
they raise the following assignment of error:
{¶10} “[1.] Reviewing the Appellee’s Motion to Dismiss De Novo, the Trial Court
erred to the prejudice of the Appellants by dismissing the First Amended Complaint
despite personal jurisdiction over the US citizen appellee, notwithstanding her current
residency in Canada.”
{¶11} The issue before this court is whether the trial court may exercise personal
jurisdiction over Follett.
{¶12} “Personal jurisdiction is a question of law that appellate courts review de
novo.” Kauffman Racing Equip., L.L.C. v. Roberts, 126 Ohio St.3d 81, 2010-Ohio-2551,
930 N.E.2d 784, ¶ 27. When a motion to dismiss for “lack of jurisdiction over the
person” pursuant to Civil Rule 12(B)(2) is decided upon “written submissions and
without an evidentiary hearing,” the plaintiff need “only [make] a prima facie showing of
jurisdiction.” Id.; Fraley v. Estate of Oeding, 138 Ohio St.3d 250, 2014-Ohio-452, 6
N.E.3d 9, ¶ 11. In determining whether this burden is met, the trial court is “required to
view allegations in the pleadings and the documentary evidence in a light most
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favorable to the plaintiffs, resolving all reasonable competing inferences in their favor.”
Goldstein v. Christiansen, 70 Ohio St.3d 232, 236, 638 N.E.2d 541 (1994).
{¶13} “Determining whether an Ohio trial court has personal jurisdiction over a
nonresident defendant involves a two-step analysis: (1) whether the long-arm statute
and the applicable rule of civil procedure confer jurisdiction and, if so, (2) whether the
exercise of jurisdiction would deprive the nonresident defendant of the right to due
process of law under the Fourteenth Amendment to the United States Constitution.”
Kauffman Racing at ¶ 28.
{¶14} Ohio’s long-arm statute provides: “A court may exercise personal
jurisdiction over a person who acts directly or by an agent, as to a cause of action
arising from the person’s * * * [c]ausing tortious injury in this state to any person by an
act outside this state committed with the purpose of injuring persons, when he might
reasonably have expected that some person would be injured thereby in this state.”
R.C. 2307.382(A)(6). Similarly, Ohio’s Civil Rules provide: “Service of process may be
made outside of this state * * * upon a person who * * * has caused an event to occur
out of which the claim that is the subject of the complaint arose, from the person’s * * *
[c]ausing tortious injury in this state to any person by an act outside this state committed
with the purpose of injuring persons, when the person to be served might reasonably
have expected that some person would be injured by the act in this state.” Civ.R.
4.3(A)(9).
{¶15} “R.C. 2307.382(A)(6) and Civ.R. 4.3(A)(9) permit a court to exercise
personal jurisdiction over a nonresident defendant and provide for service of process to
effectuate that jurisdiction if the cause of action arises from a tortious act committed
outside Ohio with the purpose of injuring persons, when the nonresident defendant
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might reasonably have expected that some person would be injured thereby in Ohio.”
Clark v. Connor, 82 Ohio St.3d 309, 313, 695 N.E.2d 751 (1998).
{¶16} The Amended Complaint alleges a variety of tortious conduct committed
by Follett outside of Ohio but with the purpose of injuring the Kubyns and their business
interests so that she might reasonably expect that they would be so injured. This
conduct includes claims of misappropriation of proprietary and intellectual interests, the
use of their personas for commercial purposes without authorization, interference with
business contracts and relationships, trade infringement and unfair competition, fraud
and misrepresentation, invasion of privacy (false light), and defamation.
{¶17} An affidavit executed by Stacey Kubyn and attached to the Kubyns’ Brief
in Opposition provides the following details: The Kubyns own and operate the website
“http://www.esquirecaucasians.com” and maintain a Facebook account, the content of
which is protected by copyright law. Follett is a self-proclaimed competitor and
adversary of the Kubyns in the breeding of Caucasian Shepherds. Although a resident
of Canada, Follett markets her dogs to purchasers in Ohio. Follett has used
copyrighted images of the Kubyns and their stud dog, Kahn, which were created in
Geauga County. She has falsely claimed ownership of the images. She has utilized
social media to wage a defamatory campaign against the Kubyns personally and
against their breeding business.2 These statements have been published to thousands
of people, including Ohio residents. She has used keywords such as “Stacey Kubyn”
and the names of Ohio incorporated dog clubs to which Stacey belongs to direct people
2. Attached to the affidavit is the screenshot of an internet posting by Follett stating: “the Succubus
[Stacey Kubyn] doesn’t do GENETIC SCREENING … the Succubus doesn’t offer GUARANTEES … the
Succubus is breeding and promoting a dog that DOES NOT meet the Breed Standard!” The Amended
Complaint identifies as allegedly defamatory statements claims by Follett that the Kubyns’ “stud dog Kahn
is a mixed breed Chow dog that should not be used for breeding” and that they keep their dogs in a
“military surplus tent in the bitter cold Ohio winter.”
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to her own website. She has stated that her “active goal” is to interfere with the Kubyns’
Ohio business.
{¶18} Such claims have been held by numerous courts to establish a basis for
the exercise of jurisdiction pursuant to R.C. 2307.382(A)(6) and Civ.R. 4.3(A)(9). See
Kauffman Racing at ¶ 44 (“[w]hen defamatory statements regarding an Ohio plaintiff are
made outside the state yet with the purpose of causing injury to the Ohio resident and
there is a reasonable expectation that the purposefully inflicted injury will occur in Ohio,
the requirements of R.C. 2307.382(A)(6) are satisfied”); MJM Holdings Inc. v. Sims, 9th
Dist. Summit No. 28952, 2019-Ohio-514, ¶ 29 (“fraudulent communications or
misrepresentations directed at Ohio residents satisfy [R.C.] 2307.382(A)(6)’s
requirements”) (citation omitted); Maui Toys, Inc. v. Brown, 7th Dist. Mahoning No. 12
MA 172, 2014-Ohio-583, ¶ 55 (R.C. 2307.382(A)(6) and Civ.R. 4.3 permitted the
exercise of personal jurisdiction over defendants who allegedly “committed tortious acts
* * * by unfairly competing * * * through the misappropriation and use of confidential
information and trade secrets”).
{¶19} Federal district court decisions likewise provide considerable support for
the exercise of personal jurisdiction based on the Kubyns’ claims. “Because district
courts take a ‘broad approach’ in applying (A)(6), out-of-state actions that give rise to
tortious injuries for purposes of the statute are legion.” Haley v. Akron, N.D. Ohio No.
5:13-cv-00232, 2014 WL 804761, *11 (conversion, copyright infringement, using
proprietary information, false representations, fraudulent communications, and
defamatory online postings “all meet the requirements of (A)(6)”) (cases cited); Mumaw
v. Thistledown Racetrack LLC, N.D. Ohio No. 1:13CV1048, 2015 WL 5437747, *4 (“not
only loss of business but also loss of reputation and standing in the horse racing
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community” based on defamation and false light claims “satisfied Ohio’s long arm
statute showing tortious injury in the State of Ohio”); Puronics, Inc. v. Clean Resources,
Inc., N.D. Ohio No. 5:12-cv-01053, 2013 WL 149882, *6 (sufficient facts to satisfy the
requirements of Section 2307.382(A)(6) existed based on “[p]laintiffs’ allegations of
unfair competition, deceptive and unfair trade practices, defamation, and tortious
interference with business relations in Ohio”); J4 Promotions, Inc. v. Splash Dogs, LLC,
N.D. Ohio No. 08 CV 977, 2009 WL 385611, *8-11 (exercise of personal jurisdiction
pursuant to R.C. 2307.382(A)(6) allowed based on claims of copyright infringement,
defamation, deceptive trade practices, and tortious interference with business relations).
{¶20} Follett argues that Kauffman “is not applicable as the parties in this case
had/have no business relationship whatsoever,” she “has not transacted business in
Ohio since 2003,” and “there is no contact with Ohio that would allow the long-arm
statute to reach Appellee.” Appellee’s brief at 9-10. The existence of a business
relationship between the parties and/or direct contact with the forum state, however, is
not necessary to satisfy the requirements of R.C. 2307.382(A)(6) and Civ.R. 4.3(A)(9).
Follett cites no law to the contrary.
{¶21} The Kauffman decision itself makes clear that a defendant need not
transact business in Ohio in order to be subject to long-arm jurisdiction. Kauffman
Racing, 126 Ohio St.3d 81, 2010-Ohio-2551, 930 N.E.2d 784, at ¶ 44 and 43 (“even if
Roberts did not publish or circulate his statements within the territorial boundaries of
Ohio, he is not shielded from the reach of Ohio’s long arm [statute]”); Maui Toys, 2014-
Ohio-583, at ¶ 52 (“[e]ven if appellee Michael Brown had not transacted business in
Ohio * * * R.C. 2307.382 and Civ.R. 4.3 still confer jurisdiction * * * because appellant’s
claims sound in tort”).
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{¶22} Nor is a business relationship between the parties necessary. In Mumaw,
the plaintiffs, horse breeders in Ohio, were able to assert jurisdiction over the defendant,
an animal rights activist in California who accused them of selling a horse for slaughter,
based on defamation and false light claims despite the absence of any formal
relationship between the parties. Mumaw, 2015 WL 5437747, at *4 (“[w]hile it is
debatable whether Jones’ activities satisfy Ohio’s long-arm statute under a conducting
business theory, the facts support a showing that Jones[] caused tortious injury in
Ohio”). Similarly, in Cash Homebuyers, Inc. v. Morningstar, N.D. Ohio No. 5:05CV2296,
2006 WL 2869564, the plaintiffs, the owners and licensees of a business website based
in Ohio, brought suit against a Florida resident alleging “that defendant has ‘used and
continues to download, distribute to the public, and/or make available for distribution to
others, certain of the Copyrighted materials.” Id. at *1. Despite the defendant’s claims
that she “does not live in Ohio, has not done business in Ohio, and has no personal or
business contacts with Ohio,” the district court found that the plaintiffs’ claims satisfied
“subsection [(A)]6 concerning causing a tortious injury in the state by an act outside the
state committed with the purpose of injuring persons.” Id. at *2 and *4.
{¶23} Having found that the Kubyns have met the requirements of the long-arm
statute and Civil Rule, we address the issue of “whether the exercise of jurisdiction
would deprive the nonresident defendant of the right to due process of law under the
Fourteenth Amendment to the United States Constitution.” Kauffman Racing at ¶ 28.
“[D]ue process is satisfied if the defendant has ‘minimum contacts’ with the forum state
such that the maintenance of the suit does not offend ‘“traditional notions of fair play
and substantial justice.”’” (Citations omitted.) Id. at ¶ 45. “The minimum-contacts
requirement is met when a nonresident defendant ‘purposefully avails [himself] of the
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privilege of conducting activities within the forum State.” (Citation omitted.) Id.
{¶24} Where, as here, the defendant does not have continuous and systematic
contacts with Ohio, the plaintiff must establish that it would be proper for the forum court
to exercise specific jurisdiction over the defendant. “Specific jurisdiction applies when ‘a
State exercises personal jurisdiction over a defendant in a suit arising out of or related
to the defendant’s contacts with the forum.’” (Citation omitted.) Id. at ¶ 47. There are
three issues to address when considering whether the exercise of specific jurisdiction is
justified: “First, the defendant must purposefully avail himself of the privilege of acting in
the forum state or causing a consequence in the forum state. Second, the cause of
action must arise from the defendant’s activities there. Finally, the acts of the defendant
or consequences caused by the defendant must have a substantial enough connection
with the forum state to make the exercise of jurisdiction over the defendant reasonable.”
(Citations omitted.) Id. at ¶ 49.
{¶25} With respect to the purposeful availment element, the defendant’s
contacts with the forum state must “proximately result from actions by the defendant
himself that create a ‘substantial connection’ with the forum State.” (Citations omitted.)
Id. at ¶ 51. The purpose of this element is to ensure “that a defendant will not be haled
into a jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts.”
(Citation omitted.) Id. It has also been recognized that a defendant’s contacts with the
forum may be enhanced where the plaintiff’s residence is “‘the focus of the activities of
the defendant out of which the suit arises.’” (Citation omitted.) Id.
{¶26} Follett’s only real connections with Ohio (given the record before this
court) derive from her deliberate and intentional conduct directed at the Kubyns and
their business operating within Ohio. Stacey Kubyn’s affidavit attached to the brief in
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opposition claims that Follett’s statements have been published, via social media, “to
thousands of people, including Ohio residents.” Attached to the affidavit are materials
indicating that Follett has solicited business from at least one Ohio resident (located in
Westlake) and Follett’s own statement that she posts information about Stacey Kubyn
“absolutely EVERYWHERE so everyone is warned.” Another posting by Follett, which
she addressed to Stacey Kubyn, invited “those many souls who have been wronged by
SK to post a comment on why she deserves NOTHING MORE than a Swift, Shallow,
and Unmarked Grave!”
{¶27} Construing the rather limited allegations and evidence in the Kubyns’
favor, as we must in the absence of an evidentiary hearing or jurisdictional discovery,
we find the purposeful availment element satisfied. They have established a prima facie
case that Follett has, if not exactly availing herself of the privilege of acting in Ohio,
purposefully undertaken to cause harmful consequences in Ohio.
{¶28} The Ohio Supreme Court’s decision in Kauffman is instructive. In that
case, the court addressed the issue of “whether an Ohio court can properly assert
personal jurisdiction over a nonresident defendant when jurisdiction is predicated on
that defendant’s publication of allegedly defamatory statements on the Internet.” Id. at ¶
1. The plaintiff was an Ohio based manufacturing company and the defendant a
resident of Virginia who had purchased an engine block from the plaintiff but had never
been to Ohio. After a dispute arose between the parties over the quality of the block,
the defendant “posted numerous rancorous criticisms of KRE on various websites
devoted to automobile racing equipment and related subjects.” Id. at ¶ 6.
{¶29} The Ohio Supreme Court deemed the minimum contacts element satisfied
by application of what is known as the “effects test,” the effect that the defendant’s
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conduct had in Ohio. The court held:
[S]hould a company injured in Ohio need to go to Virginia to seek
redress from a person who, though remaining in Virginia, knowingly
caused injury in Ohio? * * * Roberts is not alleged to have
engaged in untargeted negligence. Roberts’s Internet commentary
reveals a blatant intent to harm KRE’s reputation. Roberts knew
that KRE was an Ohio company. Roberts impugned the activities
that KRE undertakes in Ohio. Roberts hoped that his commentary
would have a devastating effect on KRE and that if there were
fallout from his comments, the brunt of the harm would be suffered
in Ohio.
Id. at ¶ 56.
{¶30} As noted above, Follett would distinguish Kauffman on the grounds that a
business relationship existed between the parties therein which is lacking between
Follett and the Kubyns. While the existence of a business relationship between the
parties is certainly a consideration, it is not a requirement for the establishment of
minimum contacts. The Ohio Supreme Court adopted the effects test from the United
States Supreme Court’s decision in Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79
L.Ed.2d 804 (1984). In Calder, a California plaintiff (an actress) brought a libel action
against Florida defendants (a reporter and editor for the National Inquirer). Despite the
lack of a business relationship between the parties, the high court found “[j]urisdiction
over [the defendants] is * * * proper in California based on the ‘effects’ of their Florida
conduct in California”: “The allegedly libelous story concerned the California activities of
a California resident. It impugned the professionalism of an entertainer whose
television career was centered in California. The article was drawn from California
sources, and the brunt of the harm * * * was suffered in California.” (Footnote omitted.)
Id. at 788-789.
{¶31} We acknowledge that “[t]he Sixth Circuit, as well as other circuits, have
narrowed the application of the Calder ‘effects test,’ such that the mere allegation of
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intentional tortious conduct which has injured a forum resident does not, by itself,
always satisfy the purposeful availment prong.” Air Prods. & Controls, Inc. v. Safetech
Internatl., Inc., 503 F.3d 544, 552 (6th Cir.2007); Walden v. Fiore, 571 U.S. 277, 290,
134 S.Ct. 1115, 188 L.Ed.2d 12 (2014) (“Calder made clear that mere injury to a forum
resident is not a sufficient connection to the forum,” rather “[t]he proper question is * * *
whether the defendant’s conduct connects him to the forum in a meaningful way”).
Even under a narrower application of the effects test, we conclude that the Kubyns have
satisfied the purposeful availment element. Despite the limited record before us, the
Kubyns’ causes of action are based on conduct specifically directed at their in-state
business which is also the locus of the alleged injuries. Alahverdian v. Nemelka, S.D.
Ohio No. 3:15-cv-060, 2015 WL 5004886, *7 (“although Defendant may have never
traveled to Ohio, nor has he previously conducted activities within Ohio, it is alleged that
Defendant sent electronic communications to various internet users world-wide causing
harm to Plaintiff whom Defendant knew to reside in Ohio * * * [which] injury suffices
since the Defendant in this case, unlike the one in Walden, formed and initiated the
contact with the forum State himself”); Tamburo v. Dworkin, 601 F.3d 693, 706 (7th
Cir.2010) (“although they acted from points outside the forum state, these defendant
specifically aimed their tortious conduct at Tamburo and his business in Illinois with the
knowledge that he lived, worked, and would suffer the ‘brunt of the injury’ there” so as
“to establish personal jurisdiction over these defendants under either a broad or a more
restrictive view of Calder”).
{¶32} The second element required to satisfy the demands of due process is
that the cause of action must arise from the defendant’s activities in the forum state, i.e.,
“that the cause of action * * * have a substantial connection with the defendant’s in-state
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activities.” (Citation omitted.) Kauffman Racing, 126 Ohio St.3d 81, 2010-Ohio-2551,
930 N.E.2d 784, at ¶ 70. “If a defendant’s contacts with the forum state are related to
the operative facts of the controversy, then an action will be deemed to have arisen
from those contacts.” (Citation omitted.) Id. A “lenient standard * * * applies when
evaluating the ‘arising from’ criterion.” (Citation omitted.) Id.{¶33} We find this second element readily satisfied. The Kubyns assert that
Follett has published defamatory statements about the quality of their breeding and the
ethical treatment of their animals and have appropriated and/or exploited their names,
images and involvement in local dog clubs from which conduct/contacts their claims
arise. Alahverdian at *7 (“sending emails into the forum intended to harm a specific
person located in that forum is sufficient to confer jurisdiction over a foreign defendant
where the emails form the basis for the action”); Tamburo at 709 (the defendants
“expressly aimed their allegedly tortious conduct at Tamburo and his Illinois-based
business for the purpose of causing him injury there; these ‘contacts’ within the forum
state are the cause in fact and the legal cause of Tamburo’s injury”); Neal v. Janssen,
270 F.3d 328, 333 (6th Cir.2001) (“when a foreign defendant purposefully directs
communications into the forum that cause injury within the forum, and those
communications form the ‘heart’ of the cause of action, personal jurisdiction may be
present over that defendant without defendant’s presence in the state”).
{¶34} The third and final element of the due process inquiry is that “the acts of
the nonresident defendant or consequences caused by the defendant must have a
substantial connection with the forum state to make exercise of jurisdiction over the
defendant reasonable.” Kauffman at ¶ 71. When “the first two elements of a prima
facie case [are satisfied] then an inference arises that this third factor is also present”
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and “[o]nly the unusual case will not meet this third criterion.” (Citations omitted.) Id.{¶35} We do not find it at all unreasonable that the Kubyns should seek redress
for their alleged wrongs in the forum where those wrongs have been suffered or that
Ohio should provide a forum for their redress. Compare Haas v. Semrad, 6th Dist.
Lucas No. L-06-1294, 2007-Ohio-2828, ¶ 21 (“[i]t should be foreseeable to one who
places a threatening phone call into a jurisdiction that he may be haled into the state to
answer a petition seeking protection against him”). Ohio’s long-arm statute expressly
sanctions the exercise of jurisdiction over those who cause tortious injury within this
state regardless of where the tortious conduct occurred when such exercise is
consistent with constitutional due process requirements. Admittedly such conduct is
greatly facilitated and enabled by the development of the internet and social media, but
this development does not alter the scope of the jurisdiction of Ohio’s courts.
{¶36} The Kubyns’ sole assignment of error is with merit.
{¶37} For the foregoing reasons, the judgment of the Geauga County Court of
Common Pleas is reversed and this matter is remanded for further proceedings
consistent with this opinion. Costs to be taxed against the appellee.
CYNTHIA WESTCOTT RICE, J.,
MARY JANE TRAPP, J.,
concur.
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