The Virginia Business Litigation Blog
Due Process is satisfied when a non-resident has sufficient minimum contacts with a state such that exercise of jurisdiction over him does not offend traditional notions of fair play and substantial justice. The minimum contacts analysis focuses on the relationship between the defendant, the forum and the litigation, and the defendant’s conduct must create a substantial connection with the forum state. The relationship must arise out of contacts that defendant himself creates with the forum state, and the contact must be with the forum state itself rather than merely with persons who reside there. The United States Supreme Court recently addressed these concepts in Walden v. Fiore.
Anthony Walden was working as a DEA agent at the Atlanta airport when, after using a drug-sniffing dog to perform a sniff test, he seized almost $97,000 in cash that Nevada residents Gina Fiore and Keith Gipson claimed to have won gambling in San Juan. Walden later helped draft an affidavit to establish probable cause. Fiore and Gipson sued Walden in Nevada alleging violation of their Fourth Amendment rights. Specifically, they asserted that Walden violated their rights by (1) seizing the cash without probable cause; (2) keeping the money after concluding it did not come from drug-related activity; (3) drafting and forwarding a probable cause affidavit to support a forfeiture action while knowing the affidavit contained false statements; (4) willfully seeking forfeiture while withholding exculpatory information; and (5) withholding that exculpatory information from the United States Attorney’s Office.
The United States District Court for the District of Nevada granted Walden’s motion to dismiss, determining that his search and seizure in Georgia did not establish a basis to exercise personal jurisdiction over him in Nevada. The Ninth Circuit reversed, holding that the District Court could exercise jurisdiction over the false probable cause affidavit aspect of the case. The court found that Walden expressly aimed the allegedly false affidavit at Nevada by submitting it knowing that it would affect Nevada residents and that the delay in returning the funds caused Fiore and Gipson foreseeable harm in Nevada. The United States Supreme Court reversed, holding that Nevada lacked personal jurisdiction over Walden.
The Supreme Court used a defamation case to illustrate the principle that a state’s exercise of jurisdiction over an out-of-state intentional tortfeasor must be based on intentional conduct by the defendant that creates the necessary contacts with the forum. In Calder v. Jones, a California actress sued a reporter and editor working in Florida for the National Enquirer for libel based on an article written and edited in Florida for publication in a weekly paper with a California circulation of approximately 
600,000. California’s exercise of jurisdiction in that case did not offend due process as California was the focal point of the story and of the harm suffered. For example, the defendants relied on phone calls to California sources, wrote the story about the plaintiff’s activities in California, and caused reputational injury in California by writing an allegedly defamatory article that was widely circulated in California. The Supreme Court noted that the reputation-based effects of the alleged libel connected the defendants to the state of California itself and not just to the plaintiff. Because publication to third persons is a necessary element of defamation, the libel actually “occurred” (at least in part) in California, the place of publication. The injury to the plaintiff’s reputation in the eyes of the California public connected the defendants’ conduct to the state, not just to a person who lived there. That connection, in combination with the facts that gave the article a California focus, made jurisdiction appropriate.
Conversely, in Walden, none of Walden’s actions occurred in Nevada. He approached, questioned and searched Fiore and Gipson and seized their money in the Atlanta airport. He allegedly helped draft a false probable-cause affidavit in Georgia and forwarded it to a United States Attorney’s Office in Georgia. He never traveled to or conducted activities in Nevada; he did not contact anyone in or send anything or anyone to Nevada. Accordingly, Walden formed no jurisdictionally relevant contact with Nevada.
The Court of Appeals erroneously shifted the analytical focus from Walden’s contacts with Nevada to his contacts with Fiore and Gipson and held that Walden’s knowledge of Fiore and Gipson’s strong contacts with Nevada–combined with the conclusion that Fiore and Gipson suffered foreseeable harm in Nevada–constituted minimum contacts. The Supreme Court explained that the Court of Appeals’ approach improperly permitted the analysis to be driven by an examination of a plaintiff’s contacts with the defendant rather than with the forum state. Walden’s actions in Georgia did not create sufficient contacts with Nevada simply because he allegedly directed his conduct at plaintiffs whom he knew had Nevada connections. Such reasoning obscures the reality that none of the challenged conduct had anything to do with Nevada.
Fiore and Gipson contended that they suffered the injury caused by Walden’s allegedly tortious conduct while they were residing in Nevada. However, Calder made clear that mere injury to a forum resident is not enough and is only relevant to the jurisdictional inquiry when it shows that the defendant has formed a contact with the forum state. The question is not whether plaintiff has experienced an injury but whether the defendant’s conduct connects him to the form state in a meaningful way. Fiore and Gipson would have lacked access to their funds in any forum they chose to travel. Unlike the broad publication of a libelous statement, the effects of Walden’s conduct on Fiore and Gipson are not connected to the forum state in a way that makes those effects a proper basis for jurisdiction.
The proper focus of the minimum contacts inquiry in an intentional tort case is the relationship among the defendant, the forum, and the litigation, and it is the defendant, not the plaintiff, who must create contacts with the forum state.