The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Having just completed a brief rant about a Florida court's overbroad (in my opinion) application of the Calder v. Jones "effects test" for personal jurisdiction, along comes Binion v. [Shaquille] O'Neal in the Eastern District of Michigan to demonstrate the right way to do things.
The facts are a little disturbing—at least if you think (as I happen to think) that O'Neal, at least in his public persona, seems like a pretty decent and likable guy.
"Plaintiff [Jahmel Binion] is an individual who resides in Macomb County, Michigan. Plaintiff suffers from a rare genetic condition called ectodermal dysplasia, which causes cosmetic abnormalities in the hair, nails, sweat glands, and teeth. O'Neal is a former professional basketball player residing in Florida and Massachusetts.
In April of 2014, when Plaintiff was approximately 23 years old, Plaintiff posted a number of photographs of himself on his public Instagram account. O'Neal obtained a photograph of Plaintiff and posted it on his Instagram and Twitter accounts, side-by-side with a photograph of O'Neal mockingly contorting his face to look like Plaintiff's.
O'Neal has an estimated half-million Instagram followers and 8.46 million Twitter followers."
["Highly offensive postings," the court calls them. O'Neal, apparently, did apologize to Binion and deleted the postings.]
Binion sued for invasion of privacy, O'Neal moved to dismiss on the grounds that the Michigan court lacked personal jurisdiction over him, and the court granted the motion.
Regarding the "effects test," the court—unlike the Florida court—required the plaintiff to show more than that he had suffered an injury in-state arising from the defendant's conduct.
Under the Calder "effects" test, a plaintiff must establish "(1) the defendant intentionally committed a tortious action which was expressly aimed for dissemination in the forum state, and (2) the brunt of the effects of the actions are felt within the forum state." (citing Lifestyle Lift Holding Co., 768 F. Supp. 2d at 937). However, "injury to a forum resident is not enough, and the Calder test has not been read to authorize personal jurisdiction in a plaintiff's home forum in the absence of `something more' to demonstrate that the defendant directed this activity toward the forum state." (citing Weather Underground, Inc. v. Navigation Catalyst Sys., Inc., 688 F.Supp.2d 693, 700 (E.D. Mich. 2009)) (emphasis added).
Here, Plaintiff cannot establish that O'Neal's posts were "expressly aimed for dissemination" in Michigan. Nor is there any allegation that O'Neal took affirmative steps to direct the posts to a Michigan audience. Instead, O'Neal's posts were meant for a national or even international audience. Here, the only connection to Michigan is Plaintiff's injury. This, without "something more" is insufficient to establish personal jurisdiction over O'Neal under the "effects" test.
That strikes me as a much more sensible way to answer the question about whether, by his actions, O'Neal "purposefully availed himself of the privilege of conducting activities" in Michigan, thereby invoking the "benefits and protections" of Michigan's law. There was nothing Michigan-focused or Michigan-targeted about O'Neal's postings, and, unless we want to discard the notion that personal jurisdiction is a meaningful due process constraint on a court's power, they should not subject him to being dragged into court in Michigan to defend himself.