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Board of Forensic Document Examiners, Inc. v. American Bar Association

United States District Court, W.D. Tennessee

February 9, 2017

BOARD OF FORENSIC DOCUMENT EXAMINERS, INC. (BFDE), and the following individuals who are certified by the BFDE M. PATRICIA FISHER; LYNDA HARTWICK; ANDREW SULNER; J. MICHAEL WELDON; EMILY J. WILL; VICKIE L. WILLARD; AND ROBIN D. WILLIAMS, Plaintiffs,
v.
AMERICAN BAR ASSOCIATION, THE JUDGES' JOURNAL, and THOMAS VASTRICK, Defendants.

          ORDER GRANTING DEFENDANTS' MOTION TO DISMISS OR, ALTERNATIVELY, TO TRANSFER VENUE

          JON P. McCALLA UNITED STATES DISTRICT COURT JUDGE

         In this action, the Board of Forensic Document Examiners, Inc. (“BFDE”) and several certified BFDE examiners sue an author and publisher for libel, false advertising under the Lanham Act, and violation of the Tennessee Consumer Protection Act. (ECF No. 1.)

         Before the Court is the Motion to Dismiss or, Alternatively, to Transfer Venue, filed by Defendants American Bar Association (“the ABA”), on its own behalf and as publisher of The Judges' Journal, [1] and Thomas W.Vastrick (collectively “Defendants”) on September 26, 2016. (ECF No. 17.) Defendants move to dismiss for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2). (Id. at Page ID 221.) Alternatively, Defendants move to dismiss for improper venue under Federal Rule of Civil Procedure 12(b)(3), or transfer to the Northern District of Illinois in accordance with 28 U.S.C. § 1404. (Id. at PageID 225.) Plaintiffs BFDE and seven document examiners certified by the BFDE-M. Patricia Fisher, Lynda Hartwick, Andrew Sulner, J. Michael Weldon, Emily J. Will, Vickie L. Willard, and Robin D. Williams (collectively, “Plaintiffs”)-responded in opposition on December 2, 2016. (ECF No. 25.)

         For the reasons stated below, the Court finds it has personal jurisdiction over Vastrick, but not over the ABA; venue is improper as to Plaintiffs' claims; and transfer to the Northern District of Illinois is appropriate. The Court therefore GRANTS Defendants' Motion to Dismiss or, Alternatively, to Transfer Venue (ECF No. 17), and hereby TRANSFERS this action to the Northern District of Illinois.

         I.BACKGROUND

         A. Factual Background

         Plaintiff BFDE is a not-for-profit “forensic specialty certification board that certifies experts in forensic document examination” and is incorporated in Texas. (ECF No. 1 ¶¶ 1-2.) Out of the fourteen forensic document examiners certified by the BFDE, seven of those individuals join BFDE in this suit. (See id. ¶¶ 3-10.) Those individuals are M. Patricia Fisher, a resident of California; Lynda Hartwick, a resident of Missouri; Andrew Sulner, a resident of New York; J. Michael Weldon, a resident of Texas; Emily J. Will, a resident of North Carolina; Vickie L. Willard, a resident of Ohio; and Robin Williams, a resident of Wisconsin. (Id. ¶¶ 4-10.) Each of these individuals maintains his or her principal place of business in the State in which they reside. (Id.)

         Defendant the ABA is a not-for-profit “national association of the American legal profession, with over 410, 000 members throughout the United States, ” is incorporated in Illinois, and maintains its principal place of business in Chicago, Illinois. (Id. ¶¶ 11-12.) “Membership in the ABA is open to all attorneys, judges and law students, as well as non-lawyers interested in the law, such as paralegals, law librarians, economists, court administrators, legal academicians, and others.” (Id. ¶ 13.) The ABA also publishes a quarterly periodical known as The Judges' Journal, “which it distributes locally, nationally and internationally, in regular print (hard copy) and electronic (online) formats, to its members, courts, libraries and other subscribers.” (Id. ¶ 14.) Approximately 75 individuals in the State of Tennessee receive The Judges' Journal, which amounts to 0.02% of the 3, 717 total recipients of the journal. (ECF No. 25-1 at PageID 264.)

         Defendant Thomas Vastrick is a forensic document examiner certified by the American Board of Forensic Document Examiners (“ABFDE”); he resides in Florida, and conducts business in both Florida and Tennessee. (See ECF No. 1 ¶¶ 16-17; ECF No. 17-1 at Page IDs 221-22; ECF No. 17-2 at PageID 231.)

         Prior to August 7, 2015, Vastrick wrote and submitted in The Judges' Journal an article entitled, “Forensic Handwriting Comparison Examination in the Courtroom” (hereinafter “Vastrick Article”). (See ECF No. 1 ¶¶ 68, 100.) The Vastrick Article provides historical and advisory remarks for judges who utilize or will utilize forensic document examiners in trial proceedings. (See generally ECF No. 1-5 at PageIDs 97-100.)

         Plaintiff Sulner received a “pre-publication PDF copy of the not yet released printed version” of the Vastrick Article contained in the Summer 2015 Edition (Vol. 54 No.3) of The Judges' Journal on August 7, 2015 from the ABA. (ECF No. 1 ¶ 65.) Hard copies of this issue were circulated by mail on or after August 24, 2015. (Id.) In the interim, Sulner engaged in a back-and-forth discussion with the editorial staff for The Judges' Journal, expressing his concern that statements in the Vastrick Article were misleading and defamatory. (See id. ¶¶ 101-02.)

         Thereafter, Sulner continued contact with the ABA and The Judges' Journal staff, seeking revision of the Vastrick Article, an opportunity to rebut the article, and/or the article's removal. (Id. ¶¶ 103-13.) On February 18, 2016, the ABA posted a revised version of the Vastrick Article to the website. (Id. ¶ 114.)

         B. Procedural Background

         Plaintiffs filed their Complaint on August 5, 2016. (ECF No. 1.)

The Complaint argues the Vastrick Article makes numerous false and misleading factual statements regarding how to differentiate between ‘true professionals' and ‘unqualified' or ‘lesser qualified practitioners' . . . [and t]hese statements constitute defamation (libel) per se, and false and deceptive advertising in violation of Section 43(a) of the Lanham Act, 15 U.S.C. §1125(a), and the Tennessee Consumer Protection Act.

(Id. ¶ 69.)

         On September 26, 2016, Defendants the ABA and Thomas Vastrick filed a Motion to Dismiss or, Alternatively, to Transfer Venue. (ECF No. 17.)

         The next day, the Court held a Telephonic Scheduling Conference. (Min. Entry, ECF No. 18.) The Court then entered a Scheduling Order. (ECF No. 19.) The Court recognized in this Order that deadlines would be largely dependent on the Court's ruling on Defendant's pending motion. (See id.)

         On December 2, 2016, Plaintiffs filed their response in opposition. (ECF No. 25.) On December 16, 2016, Defendants filed a Motion to Strike Declaration of Andrew Sulner. (ECF No. 26.) The same day, Defendants also filed their reply to Plaintiffs' opposition to the Motion to Dismiss or, Alternatively, to Transfer Venue. (ECF No. 25.)

         On December 19, 2016, Plaintiffs filed a Response to Defendants' Motion to Strike Declaration of Andrew Sulner. (ECF No. 28.) On January 19, 2017, the Court granted Defendants' Motion to Strike Declaration of Andrew Sulner on the grounds that the affidavit improperly blended facts, legal citation, and argument of counsel. (ECF No. 29.)

         II. DISCUSSION

         A. Legal Standard: Motion to Dismiss for Lack of Personal Jurisdiction

         The court must have personal jurisdiction over each defendant and as to each asserted claim. SunCoke Energy Inc. v. MAN Ferrostaal Aktiengesellschaft, 563 F.3d 211, 220 (6th Cir. 2009) (White, J., concurring) (“[P]ersonal jurisdiction must be proper as to each claim. . . .”) A federal court looks to the state long-arm statute in which it sits to determine the appropriate limitations on personal jurisdiction, then assesses the exercise of jurisdiction, if any, under due process requirements. Federal Rule of Civil Procedure 4(k)(1)(a); see Aristech Chem. Int'l Ltd. v. Acrylic Fabricators, Ltd., 138 F.3d 624, 627 (6th Cir. 1998); CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th Cir. 1996); Bird v. Parsons, 289 F.3d 865, 871 (6th Cir. 2002). The jurisdictional limits of Tennessee law and of the federal constitutional law of due process are identical. Intera Corp. v. Henderson, 428 F.3d 605, 616 (6th Cir. 2005); First Cmty. Bank, N.A. v. First Tennessee Bank, N.A., 489 S.W.3d 369, 384 (Tenn. 2015), cert. denied sub nom. Fitch Ratings, Inc. v. First Cmty. Bank, N.A., 136 S.Ct. 2511, 195 L.Ed.2d 841 (2016); Tenn. Code Ann. § 20-2-223(a).[2] Thus, the Court need only determine whether exercising personal jurisdiction over Defendants is consistent with federal due process requirements. Bridgeport Music, Inc. v. Still N The Water Pub., 327 F.3d 472, 477 (6th Cir. 2003). The due process clause requires that a non-resident defendant have at least “certain minimum contacts with the [forum state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.'” Youn v. Track, Inc., 324 F.3d 409, 417 (6th Cir. 2003) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).

         “There are two kinds of personal jurisdiction within the Federal Due Process inquiry: (1) general personal jurisdiction, where the suit does not arise from defendant's contacts with the forum state; and (2) specific jurisdiction, where the suit does arise from the defendant's contacts with the forum state.” Conn v. Zakharov, 667 F.3d 705, 712-13 (6th Cir. 2012). General jurisdiction allows a plaintiff to sue a defendant “on any and all claims, ” regardless of the connection (or lack thereof) between the claim and the forum. Maxitrate Tratamento Termico E Controles v. Super Sys., Inc., 617 F.App'x 406, 408 (6th Cir.), cert. denied sub nom. Maxitrate Tratamento Termico E Controles v. Allianz Seguros S.A., 136 S.Ct. 336, 193 L.Ed.2d 231 (2015) (citing Daimler AG v. Bauman, ___ U.S. ___, 134 S.Ct. 746, 769 (2014)). Specific jurisdiction, by contrast, “exposes the defendant to suit in the forum state only on claims that arise out of or relate to a defendant's contacts with the forum.” Kerry Steel, Inc. v. Paragon Indus., Inc., 106 F.3d 147, 149 (6th Cir. 1997). That is, when alleged contacts fall short of being “continuous and systematic, ” those contacts may still support the exercise of specific jurisdiction if they relate to the cause of action. The Sixth Circuit Court of Appeals has set out a three-part test for determining when specific jurisdiction exists:

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.

S. Mach. Co. v. Mohasco, 401 F.2d 374, 381 (6th Cir. 1968);[3] see also Harmer v. Colom, 650 F.App'x 267, 272 (6th Cir. 2016).

         When a defendant challenges personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2), “[t]he plaintiff bears the burden of making a prima facie showing of the court's personal jurisdiction over the defendant.” Intera Corp. v. Henderson, 428 F.3d 605, 615 (6th Cir. 2005). A plaintiff “can meet this burden by ‘establishing with reasonable particularity sufficient contacts between [a defendant] and the forum state to support jurisdiction.'” Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 887 (6th Cir. 2002) (quoting Provident Nat'l Bank v. Cal. Fed. Sav. Loan Ass'n, 819 F.2d 434, 437 (3d Cir. 1987)).

         When the court does not conduct an evidentiary hearing on the issue of personal jurisdiction, it must “not consider the facts proffered by the defendant that conflict with those offered by the plaintiff, and will construe the facts in the light most favorable to the nonmoving party.” Id. (citation omitted).

         B. Analysis: Motion to Dismiss for Lack of Personal Jurisdiction

         1. Personal Jurisdiction as to the Defendants

         Defendants argue that the Court has neither general nor specific jurisdiction over them. (ECF No. 17-1 at PageIDs 221-224.) Plaintiffs contend the Court has both. (ECF Nos. 25 at PageID 254; 25-1 at PageIDs 254, 258-59, 264.) The Court assesses the propriety of both forms of personal jurisdiction as to each defendant.

         i. General Jurisdiction

         a. Vastrick

         To prove general jurisdiction, Plaintiffs must show Defendant Vastrick's contacts with Tennessee are so “continuous and systematic” that Plaintiffs are entitled to bring a cause of action unrelated to Vastrick's contacts with Tennessee. Defendants contend Vastrick has no such systematic or continuous contact with Tennessee because he resides in Florida, where he also has his principal place of business. (ECF No. 17-1 at Page IDs 221-22 (citing ECF No. 17-2 ¶¶ 2-6).) Vastrick contends his only ties to Tennessee are a P.O. Box at a UPS Store in Memphis, Tennessee and a phone number with a (901) area code. (Id.) Plaintiffs argue Vastrick's ties with Tennessee are systematic and continuous because he maintains a business here and holds himself out as a Memphis, Tennessee document examiner. (ECF No. 25 at PageID 254 (citing Exhibits 3-4).)

         Unable to “consider the facts proffered by the defendant that conflict with those offered by the plaintiff, and [ ] constru[ing] the facts in the light most favorable to the nonmoving party, ” Neogen, 282 F.3d at 887, the Court finds the following contacts sufficient to exercise general jurisdiction over Vastrick. In the past three years, Vastrick has published a classified ad in the Tennessee Bar Journal, which reads in relevant part: “Tennessee's only full-time ABFDE-certified full-time document examiner. . . . Thomas Vastrick, 6025 Stage Road, Suite 42-309, Memphis, TN 38134; (901) 383-9282.” (ECF No. 25 at PageID 254 (citing Exhibits 3-4).) Vastrick conveys additional ties to his business in Tennessee in past articles, which include footnotes that state, “Thomas W.Vastrick is a forensic document examiner in private practice in Memphis, with 28 years of experience in the field” and/or list his Memphis mailing address. (ECF No. 25-4 at PageIDs 386.) Vastrick testifies that he lists this Memphis business address, even though it is not a physical office. (ECF No. 17-2 ¶ 6; see also ECF No. 25-3 at PageID 378.) Over the last four years, Vastrick visited “Memphis on business approximately once a year on average. . . .” (ECF No. 17-2 at PageID 231.) Also, 42% of Vastrick's disclosed business in the past 18 years took place in Tennessee, and while his current business is concentrated in Florida, Vastrick has consistently maintained business in Memphis, Tennessee. (ECF No. 25-1 at PageIDs 258-59; ECF No. 27 at PageIDs 473-74.)

         The Court therefore finds the facts in the light most favorable to the nonmoving party demonstrate Vastrick's contacts in Tennessee are so “continuous and systematic” that personal jurisdiction is proper, regardless of the relationship between the nature of this suit and Vastrick's contacts with Tennessee. Having found general jurisdiction proper, the Court need not address whether specific jurisdiction exists over Vastrick as to each of the claims in the Complaint.

         b. The ABA

         Plaintiffs contend general jurisdiction over Defendant ABA is proper in part due to its circulation of The Judges' Journal in the stream of commerce. (ECF No. 25 at PageID 254 (citing Exhibits 1, 12, 13)[4]; see also ECF No. 25-1 at PageID 258.) In essence, Plaintiffs allege that because The Judges' Journal reaches “approximately 75 recipients in Tennessee, or (0.02%) of its 3, 717 recipients” (ECF No. 25-1 at PageID 264), any plaintiff is authorized to sue the ABA in Tennessee on any and all claims. (See id. at PageID 258.) The Court disagrees.

         The facts in the light most favorable to the nonmoving party do not demonstrate that the ABA's contacts in Tennessee are so “continuous and systematic” that they subject the ABA to causes of action unrelated to the ABA's contacts with Tennessee. To exercise general jurisdiction over the ABA, the ABA's affiliations with Tennessee must be “so constant and pervasive ‘as to render [it] essentially at home'” in Tennessee. Daimler AG v. Bauman, 134 S.Ct. 746, 751, 187 L.Ed.2d 624 (2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. __, 131 S.Ct. 2846 (2011)). The evidence, however, supports a contrary finding. Distribution of The Judges' Journal into Tennessee, alone, does not render the ABA ‘at home' in Tennessee. The Supreme Court has held that,

“the placement of a product into the stream of commerce ‘may bolster an affiliation germane to specific jurisdiction, ' . . . [but] such contacts ‘do not warrant a determination that, based on those ties, the forum has general jurisdiction over a defendant.' . . . [Moreover, ] a corporation's ‘continuous activity of some sorts within a state is not enough to support the demand that the corporation be amenable to suits unrelated to that activity.'”

Daimler, at __, 131 S.Ct. at 757 (quoting Goodyear, 564 U.S. __, 131 S.Ct. at 2850; and quoting Int'l Shoe, 326 U.S. at 318.)

         Aside from The Judges' Journal, Plaintiffs have failed to proffer other affiliations the ABA may have with Tennessee. The evidence instead demonstrates that the ABA is “an Illinois not for profit corporation with its principal place of business in Chicago, ” it “does not have any business address or office location in Tennessee, and holds no bank accounts or property in Tennessee.” (ECF No. 17-1 at PageID 222.) For these reasons, the Court does not have general jurisdiction over the ABA in Tennessee.

         Without general jurisdiction, the exercise of personal jurisdiction over a defendant becomes claim-specific, meaning the plaintiff “must establish specific jurisdiction for each claim.” Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 274 (6th Cir. 2006) (citing 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 3d § 1351, at 299 n.30 (2004) (“There is no such thing as supplemental specific personal jurisdiction; if separate claims are pled, specific personal jurisdiction must independently exist for each claim and the existence of personal jurisdiction for one claim will not provide the basis for another claim.”)). Personal jurisdiction over the ABA, therefore, hinges on whether there is specific jurisdiction over the ABA as to each claim asserted against it. The Court thus addresses each claim asserted against the ABA in turn.

         ii. Specific ...


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