When Do Courts Lack Jurisdiction Over Torts Physically Committed in the State?

An interesting question now being litigated in Vermont federal court.

|The Volokh Conspiracy |

Vermont has recently repealed its statute of limitations for childhood sexual abuse. As a result, Martin Giroux sued Paul Foley for allegedly abusing him 35 years before, apparently when the Giroux and Foley families were vacationing in Vermont (from Kansas, where both families lived). Now normally Vermont would have jurisdiction over civil lawsuits stemming from alleged torts that physically took place within Vermont; but the question is whether the matter should be different here, given the parties' lack of any continuing connection with Vermont, and given the defendant's age and health problems. Here's the defendant's description of the facts (which of course notes that plaintiff's allegations of abuse are at this point just allegations):

Defendant Paul Foley is an 84-year-old man, and a resident of the Wichita, Kansas metropolitan area since the age of 5. Plaintiff's family lived in the Wichita area as well when Plaintiff was growing up, and in the early 1980s, Defendant and Plaintiff's father became friends through their work at a local college. The parties' families socialized together in Kansas and occasionally vacationed together. During one such vacation to Vermont over one weekend thirty-five years ago, Plaintiff now alleges that Defendant sexually abused him ….

The parties' relationship was centered entirely in Kansas. Neither party lived in Vermont at the time of the alleged conduct; Defendant has never spent any significant time in Vermont, nor to his knowledge has the Plaintiff. Plaintiff does not allege that the parties were ever in Vermont together other than the one weekend in 1984, or that Defendant was ever in the State again. At this juncture, Defendant is an ailing octogenarian who requires 24-hour assistance with his healthcare and activities of daily living. In addition, Defendant is not ambulatory, requiring an electronic mobility scooter to move independently. He still lives in Wichita; Plaintiff lives in New Jersey; and there are no known potential witnesses living in Vermont….

And here's defendant's jurisdiction argument:

Defendant moves to dismiss Plaintiff's Complaint, pursuant to Fed. R. Civ. P. 12(b)(2), for lack of personal jurisdiction. Personal jurisdiction "concerns the authority of the court to hear and determine the controversy." …

Vermont courts (and therefore the federal court in Vermont) would normally have "specific personal jurisdiction," because the alleged tort took place in Vermont (despite defendant's argument that, "Defendant's de minimis alleged contacts with Vermont—a weekend in the Green Mountain State over 35 years ago—are insufficient for him to reasonably anticipate being haled into Court in Vermont"); but the defendant argues that this presumption is rebutted under the "reasonableness" prong of the jurisdiction inquiry:

The second part of the Due Process inquiry "asks whether the assertion of personal jurisdiction comports with 'traditional notions of fair play and substantial justice'—that is, whether it is reasonable under the circumstances of the particular case." As part of the "reasonableness" analysis, the U.S. Supreme Court has directed lower courts to evaluate the following factors:

[1] the burden that the exercise of jurisdiction will impose on the defendant;

[2] the interests of the forum state in adjudicating the case;

[3] the plaintiff's interest in obtaining convenient and effective relief;

[4] the interstate judicial system's interest in obtaining the most efficient resolution of the controversy; and

[5] the shared interest of the states in furthering substantive social policies….

Here, the burden on Defendant—a long-time resident of the greater Wichita metropolitan area—is substantial. As an ailing, non-ambulatory octogenarian, Defendant will find long distance travel to Vermont extremely difficult. His travel difficulties are compounded by his need for 24-hour assistance with his healthcare and activities of daily living, rendering litigation in Vermont highly burdensome, expensive, and potentially detrimental to his health. While any defendant would suffer a significant personal and financial burden litigating a case over 1,500 miles from his home, that burden is especially acute in this case as a result of Mr. Foley's physical limitations. Contra Glinka v. Abraham & Rose Co., Ltd., 199 B.R. 484, 487 (D. Vt. 1996) (explaining that burden on defendant to defend in Vermont was slight, because its offices were in Montreal). Moreover, it is unlikely that there are any potential witnesses in Vermont with information about the litigation. See Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 573–74 (2d Cir. 1996) (first factor weighs in out-of-state defendant's favor when no witnesses or evidence located in Vermont).

With regards to the second factor, Vermont has a limited interest in regulating the conduct between two out-of-state residents whose relationship centered in Kansas, particularly when the purported conduct is over 35 years old. As neither of the parties is a Vermont resident, the forum state's interest in providing redress to its own citizens is entirely absent. Id. at 574; Bechard, 810 F.Supp. 579, 586 (D. Vt. 1992).

Turning to the third factor, Plaintiff's interest in convenient and effective relief is hindered by litigating the matter in Vermont—no known witnesses are located in the Green Mountain State. Moreover, Plaintiff himself is not a resident of Vermont. Metro. Life, 84 F.3d at 574 (third factor carries less weight when plaintiff not resident of forum state). It appears that his only interest in litigating in Vermont "stems from [his] belief that the forum offers a more generous statute of limitations;" in fact, it may be the only forum in which Plaintiff's claim is not barred. However, such a consideration is irrelevant and impermissible in the context of a jurisdictional inquiry. Id. ("'The question of the applicability of [the forum state's] statute of limitations … presents itself in the course of litigation only after jurisdiction over respondent is established, and we do not think that such choice of law concerns should complicate or distort the jurisdictional inquiry.'").

When evaluating the fourth factor, "courts generally consider where witnesses and evidence are likely to be located." As aforementioned, Plaintiff is a resident of New Jersey and Defendant is a resident of Kansas. As the parties' entire relationship was based in Kansas, the vast majority, if not all, of the witnesses and evidence are likely to be located there—or at least outside of Vermont—thus this factor strongly favors Defendant.

Finally, with respect to the fifth factor, there is no shared interest of the states in furthering substantive social policies. While Vermont may have an interest in providing recourse for torts purportedly committed within its borders, other interested states—Kansas, for example—have a substantial interest in freeing their citizens from litigating stale claims and in giving individuals repose for ancient breaches of law. Consequently, there is not a shared interest in furthering a given substantive social policy in the present matter.

The unreasonableness of pursuing Defendant in Vermont is exacerbated by the extremely limited contacts asserted by the Plaintiff. Because Plaintiff asserts only de minimis contact by Defendant with Vermont, the Court should give particular weight to the unreasonableness of requiring Defendant to litigate here. See Ticketmaster–New York, Inc., 26 F.3d at 210 ("the weaker the plaintiff's showing [on minimum contacts], the less a defendant need show in terms of unreasonableness to defeat jurisdiction.")

In sum, because Defendant's contacts with Vermont are de minimis, the reasonableness factors should carry greater weight in the Court's Due Process inquiry. Metro. Life, 84 F.3d at 568. Those factors evince the unreasonableness of this Court exercising personal jurisdiction over Defendant. Put differently, Plaintiff's interest in pursuing his action in Vermont and Vermont's interest in adjudicating the matter are so attenuated that the assertion of personal jurisdiction does not comport with traditional notions of fair play and justice. Exercising jurisdiction over the Defendant on these facts is unreasonable and thus violates Defendant's Due Process rights. Accordingly, Plaintiff's Complaint should be dismissed for lack of personal jurisdiction over Defendant….

I'm not an expert on jurisdiction, but some people I asked suggest that a court would likely not reject personal jurisdiction in a lawsuit over a tort that allegedly physically took place within that very state; and the cases cited in the motion don't persuade me to the contrary. We'll see soon what this court concludes.

Note that a court with jurisdiction might decline to exercise it on the grounds of forum non conveniens (which, unsurprisingly, more or less means "the forum is not convenient"), based on factors such as the ones the defendant is arguing above. But that's not the argument the defendant is making in this motion.

This, by the way, is the case in which I've moving to unseal the Complaint; but this motion was not filed under seal, likely because the sealing order in the case (and the state statute on which the sealing order relied) doesn't seem to cover motions to dismiss.

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  1. What if the defendant alleges that the event never happened and he was never in the state of Vermont? Since jurisdiction is needed to proceed any further, is there a “mini-trial” to establish jurisdiction first?

    It is one thing for a “normal” allegation of a tort to determine if the court has jurisdiction, but in these types of cases, which can be based simply on a memory from 30-60 years beforehand, this normally obvious initial step can be not quite so obvious.

    1. That sounds like provable perjury to me. I doubt it would be that hard to uncover credit card records or vacation photos or mutual friends who could back up the Vermont vacation.

      1. It’s a hypo. A says B did bad things in Vermont. B says, “What? I’ve never been to Vermont.” Does B have to go to Vermont to defend himself?

        At least I assume that’s what’s being asked.

      2. From over 30 years ago? Yeah, actually it could be quite difficult.

        But it’s an interesting hypo: If you live in Hawaii, can somebody from Nebraska drag you into a court in Maine just by alleging you did something there 30 years ago? How much proof do they have to provide before it’s reasonable to force you to make that trip?

  2. This seems a strange case in another respect: The statute of limitations had previously been, I think, 6 years, and so would have expired nearly 30 years earlier at the time Vermont repealed it.

    Stogner v. California, 539 U.S. 607 (2003) seems precisely on point: “Held: A law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution. ”

    Granted, this is a civil lawsuit rather than a criminal prosecution, and the Supreme court doesn’t admit that the clause applies to genuine civil actions, but it’s still dodgy.

    1. I wondered about that when New York passed a similar law allowing complaints (for one year after passage of the law) about sexual abuse for which the statute of limitations had expired.

    2. One of the earliest Supreme Court decisions that is still relevant today is Calder v. Bull (1798), which held that the Ex Post Facto clause only applies to criminal, not civil, cases.

      I don’t know if a tort premised on an unlawful act (like suing a competitor for violating Unfair/Deceptive Business laws where the claim is that the competitor illegally solicited business) would be within the scope of the Ex Post Facto and/or the Due Process clause.

      1. Well, as to that, the problem here is that the legislature can pass laws to ease the path of lawsuits exactly BECAUSE it knows it can’t prosecute retroactively, and wants the lawsuits to fill the place of the prohibited criminal law.

  3. He can Kansas, though, right? How does the choice-of-law analysis typically address statutes of limitations?

    1. In theory, he can sue in Kansas, seeking to apply Vermont law to events that (allegedly) took place in Vermont. But many of the same complaints about suing in Vermont apply in Kansas, as well… are there witnesses to what happened in Vermont, in Kansas? The case might get bumped out of Kansas court for jurisdictional reasons, as well (though not the same jurisdiction issues as in Vermont) In Vermont, it’s questioned whether the court has jurisdiction over the defendant. In Kansas, it could be questioned whether the court has jurisdiction over the offense(s) alleged.

      I’m doubtful of the facts, myself… you traveled from Kansas to Vermont for one day? Really?

      1. I think that the claim is that the families spent a weekend together in Vermont. Furthermore, the stay in Vermont may well have been part of a longer trip. I remember long summer drives with my family as a child, between Kansas City and New York, which involved seeing tourist attractions and other vacation activities en route, with visits to relatives when we reached New York. The families in question may have taken a similar trip.

        1. What, exactly, is Vermont on the way to (or from), though?

          1. Road trips meander all over. Vermont itself may have been part of a general meandering road trip.

          2. I took a road trip back in the 90’s, starting in Michigan, drove up to Maine, (Yes, passing through Vermont.) then following the coast down to Florida, before taking a fairly direct route back to Michigan.

            It was a lot of fun, but even allotting 2 weeks for it, I got kind of rushed towards the end.

            It’s not like Vermont is an island out in the ocean, it’s on your way to a lot of places.

      2. “ In Kansas, it could be questioned whether the court has jurisdiction over the offense(s) alleged.”

        Unless Kansas has really weird rules about subject-matter jurisdiction, that’s a prudential question (forum non conveniens) not a jurisdictional one

    2. He should be able to sue in Kansas Federal court, using Vermont law as a sort of forum “conveniens.” Essentially he’d argue that the Vermont Federal court has jurisdiction, but because of the burden on the respondent and the likely availability of any evidence the Kansas court is a better venue, even though it would be applying Vermont’s substantive law (though I think Kansas procedural law, if I remember how that works out correctly).

  4. Eugene: This argument is not off-the-wall. It is extraordinary for a court to find jurisdiction unreasonable when there were minimum contacts with the forum (such as commission of a tort). But this sort of reasonableness-balancing is part of the regular PJ analysis. And some of the factors work in the defendant’s favor–courts will think twice before making an old and infirm defendant travel across the country to litigate. I think other factors weigh against the defendant; the motion understates Vermont’s interest in doing something about misconduct occurring within its borders, regardless of where the actors reside. So my guess is the motion will be denied; but the argument is plausible. And an FNC motion (actually transfer-of-venue, since the case is in federal court) could be next.

    There would be general jurisdiction in Kansas because the defendant lives there. He has minimum contacts and is subject to suit there for all claims.

    1. Although interest balancing formally remains part of the personal jurisdiction analysis, I think the argument is quite weak if not fully off the wall here. Suppose the two parties had been involved in an allegedly negligent automobile accident while traveling through Vermont to their respective out of state residences. I think Vermont would have personal jurisdiction over the nonresident defendant despite the lack of any other contacts and despite any argument about reasonableness; old drivers don’t get a special exemption from ordinary personal jurisdiction law. If as I suspect Vermont’s interest is sufficient to overcome any inconvenience arguments in an ordinary negligence case, surely it is even stronger in a claimed intentional tort committed within its borders. The nature of the claim matters in assessing the state’s interest as part of the reasonableness argument, and it would seem that it would be stronger in an intentional tort claim than in a negligence claim, for Vermont has an even greater interest in providing a forum for remedying deliberate wrongdoing within its borders than for simple negligence. So like Howard I expect the motion to be denied, but I’m less persuaded that it is even plausible, at least using plausible as borrowed from its usage in Twiqbal.

      1. Didn’t the Supreme Court say otherwise in Worldwide Volkswagen?

        1. Worldwide Volkswagen, as the name hints, was a case about whether a car manufacturer could be liable for injuries in a car accident a thousand miles away from where the car was sold. There were insufficient contacts between the manufacturer and dealership and the site of the accident.

          I don’t think Worldwide Volkswagen gives any reason to doubt a claim that the driver in a car accident can be sued in the forum where the accident occurred, no matter how far away the driver lives. Unlike the manufacturer, it was the driver’s choice to enter the state, and he would be on notice that misconduct there could bring legal liability.

  5. Do we know whether the plaintiff strongly prefers to have the case heard in Vermont or whether he simply filed in Vermont on the assumption that the case should be heard where the alleged tort occurred and would in principle be willing to have the case heard elsewhere?

    1. Isn’t this the answer?

      “It appears that his only interest in litigating in Vermont “stems from [his] belief that the forum offers a more generous statute of limitations;” in fact, it may be the only forum in which Plaintiff’s claim is not barred.”

      1. But that won’t matter, because they’re residents of different states this goes to Federal court, who has to decide which law to apply.

        Regardless of which district the trial is held, the applicable law is the jurisdiction in which the tort occurred – Vermont.

        Now if he’d filed in Vermont State court, then the respondent removed it to federal court for diversity jurisdiction, and is now arguing against the venue that at least makes some sense. But it seems obvious that Vermont Federal courts are an inconvenient forum for both parties, so you’d look at which court has the least burden, which is obviously the respondents local federal court, who will then apply Vermont law.

  6. The arguments seem sound if the claim was improper venue. But I think a tort that occurred in a state and wholly in a state should by definition give that state jurisdiction.

    1. Maybe not. For example, if it occurred on the ISS while the ISS was within the borders of the state. Alternatively, if all parties involved thought they were were in (state A) but had in fact crossed over the borders to (state B), then (state A) might yield jurisdiction to (state B) if a combination of factors indicated that (state B) was a superior venue.
      As was pointed out a couple of times, though, the proper form for that is an attempt to change the venue rather than an attempt to get the charges dismissed for lack of jurisdiction.
      But yes, the default assumption should be that a tort committed inside the state’s borders gives the state jurisdiction over the tortfeasor. Don’t want to be haled into court in (state)? Then don’t commit your torts (or crimes) there.

      1. “Don’t want to be haled into court in (state)? Then don’t commit your torts (or crimes) there.”

        Technically, “Don’t want to be haled into court in (state)? Then don’t be accused of torts (or crimes) there.” You seem to be assuming guilt, which is questionable in the best of cases, (Presumption of innocence.) and extremely questionable when a tort is alleges 35 years after it supposedly happened.

  7. This does seem to be in the nature of forum non convieniens.

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