Courts Have Jurisdiction Over Torts Physically Committed in the State, Even Long Ago

|The Volokh Conspiracy |

That's what Judge Christina Reiss (D. Vt.) held today in Giroux v. Foley, a case I wrote about in November. An excerpt from today's decision:

Plaintiff is a citizen of the State of New Jersey and Defendant is a citizen of the state of Kansas. Plaintiff alleges that Defendant took him to Vermont in approximately July or August of 1984, when Plaintiff was fifteen years old, and sexually assaulted him …. Plaintiff … asserts that Defendant groomed him by taking him on trips by car, bus, and both private and commercial airplane in Vermont, Kansas, Missouri, Florida, Oklahoma, Colorado, Tennessee, and Canada; and by paying for hotels, restaurants, meals, entertainment, and other miscellaneous expenses. Defendant allegedly knew that Plaintiff would find his sexual advances "difficult to resist because he gave Plaintiff gifts and spent money on him." …

Plaintiff's allegations arise out of conduct that took place in Vermont, among other places. He argues Defendant purposefully directed certain activities to this state by planning, paying for, and committing the acts that give rise to Plaintiff s claim. Although a weekend trip is Defendant's only alleged contact with Vermont, "even a single act can support jurisdiction" so long as "it creates a substantial connection with the forum" based on the "nature and quality and the circumstances of [its] commission[.]" … If the single act alleged is an intentional tort that gives rise to the plaintiff's cause of action, that tort alone "may support the exercise of personal jurisdiction over the nonresident defendant who has no other contacts with the forum."

In this case, far from de minimis, the single act constituting Defendant's contact with Vermont is alleged to be an intentional tort with a minor victim that involved both planning and purposeful availment of facilities in Vermont. Accepting the facts pled in the Complaint as true and crediting Plaintiff's affidavit, the "intentional conduct by [Defendant] … creates the necessary contacts with the forum." …

"While the exercise of jurisdiction is favored where the plaintiff has made a threshold showing of minimum contacts at the first stage of the inquiry, it may be defeated where the defendant presents 'a compelling case that the presence of some other considerations would render jurisdiction unreasonable.'" …

Defendant argues that the burden on him to litigate in Vermont would be substantial because he is a nonambulatory eighty-four-year-old man who lives outside of Wichita, Kansas and requires twenty-four-hour healthcare assistance. While the Second Circuit has generally held that "the conveniences of modern communication and transportation ease" the burden on out-of-state defendants, because of his health conditions, Defendant may not easily use modern conveniences or mass transportation. Defending a lawsuit and attending trial in Vermont would therefore impose obstacles for Defendant that would be somewhat difficult to alleviate.

On the other hand, Defendant's physical presence in Vermont is likely to be required only for trial. As Plaintiff points out, Defendant is represented by competent counsel in both Vermont and Kansas and may seek to be deposed via video recording. Defendant's poor health alone therefore does not render the exercise of jurisdiction unreasonable….

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  1. What am I missing here? Why is this decision in any way noteworthy? The result seems to me both obvious and consistent with personal jurisdiction precedent from both the states and federal courts nationwide, going back many decades. Even after reading your November post, I’m at a loss. If anything about the case is remarkable, it’s the ludicrous argument that the defendant’s old age and ill health has anything whatsoever to do with whether Vermont’s courts may constitutionally exercise jurisdiction over him.

    1. I largely agree with you, BUT, the Due Process part of any personal jurisdiction analysis has two steps: minimum contacts, and reasonableness. Most of the time, the analysis focuses on minimum contacts, but not always.
      Here is what the Second Circuit said in one case:

      Even where an out-of-state defendant purposefully avails himself of the forum state, plaintiffs must still demonstrate that the exercise of jurisdiction does not “offend traditional notions of fair play and substantial justice” and is thus reasonable under the Due Process Clause. Asahi, 480 U.S. at 113, 107 S.Ct. 1026 (internal quotation marks omitted). The Supreme Court has set forth five factors that must be considered when determining the reasonableness of a particular exercise of jurisdiction:

      A court must consider [1] the burden on the defendant, [2] the interests of the forum State, and [3] the plaintiff’s interest in obtaining relief. It must also weigh in its determination [4] the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and [5] the shared interest of the several States in furthering fundamental substantive social policies. Id.

      Chloe v. Queen Bee of Beverly Hills, 616 F.3d 158, 173 (2d Cir. 2010).

      I think his argument is that given the huge burdens to him, and the attenuated connection to Vermont, it would offend Due Process to force him to litigate there. Of course he lost, and rightly so, but he had a colorable (if losing) argument.

      1. Thanks, that’s an interesting take, Bored Lawyer, for your sharing of which, I thank you.

    2. A Vermont court exercising in personam jurisdiction over an ailing octogenerian resident of Kansas in a matter instituted by a New Jersey resident some 35 years after the tortious acts were alleged to have transpired does not exactly comport with traditional notions of fair play and substantial justice.

    3. All the court’s arguments would have been far stronger if the plaintiff had filed in his home state of New Jersey. As far as I can see, the plaintiff offered no reason why Vermont was a better venue that New Jersey. Even if it is technically legal, the complete lack of justification makes this look like forum shopping. And forum shopping fails to meet the fair and reasonable standards.

      1. Plaintiff is probably suing in Vermont because Vermont explicitly did away with any statute of limitations for these kinds of cases.

        From the decision linked in the article:

        Plaintiff asserts that he was sexually assaulted in Vermont and brings suit pursuant to a Vermont statute enacted for the sole purpose of allowing persons to recover “for injury suffered as a result of childhood sexual abuse . . . at any time after the act alleged to have caused the injury or condition.” 12 V.S.A. g 522(a). By enacting $ 522, Vermont’s Legislature has expressed a clear interest in redressing childhood sexual assaults that occurred in Vermont regardless of when they occurred. See 12 V.S.A. $522(d) (“[T]his section shall apply retroactively to childhood sexual abuse that occurred prior to [] July l, 2019, irrespective of any statute of limitations in effect at the time the abuse occurred .”); see also Red Bull Assocs. y. Best Western Int’|, Lnc.,862F.2d963,966 (2d Cir. 1988) (noting the public policy significance of “a clear statutory declaration” that certain legal actions are to be “encouraged) (footnote omitted).

        1. And how is retroactively abolishing the statute of limitations not an ex post facto law?

          1. Ex post facto is only an issue in criminal cases. That was decided in 1798 in Calder v. Bull.

          2. At least the Ex Post Facto clause in the constitution has been read to only apply to criminal laws.

        2. Plaintiff is probably suing in Vermont because Vermont explicitly did away with any statute of limitations for these kinds of cases.

          No, that almost certainly has nothing to do with it. This incident is alleged to have happened in Vermont, so Vermont law is going to govern whether or not the plaintiff is entitled to relief. But courts in Kansas or New Jersey can apply Vermont law just as much as court in Vermont.

          1. NJ probably doesn’t have jurisdiction. At least not based on anything in this opinion. So that rules out NJ.

            If you read again you’ll see that the conduct alleged occurred in several places which included Vermont.

            So yes Vermont’s repealing of the SoL is likely the reason it is there.

      2. How on earth would the plaintiff have established personal jurisdiction over the defendant in New Jersey?

  2. “Plaintiff’s allegations arise out of conduct that took place in Vermont, among other places.”

    Conduct alleged to have taken place in Vermont. This whole thing needs more “allegedly”s. Lots more.

  3. What is the SOL in Kansas for the alleged conduct? Color me shocked if it does not extend 35 years.

    1. Actually, I would be surprised if the suit wasn’t blocked by the SOL in either Kansas or New Jersey (Plaintiff’s home state).

      Apparently Vermont passed a law eliminating the statute of limitations for these kinds of cases only last year.

    2. Who cares? The conduct didn’t happen in Kansas: there’s no argument that Kansas substantive law (including the statute of limitations) would apply here, even if the suit had been brought in Kansas state court.

      1. You may want to read that again

        “Plaintiff … asserts that Defendant groomed him by taking him on trips by car, bus, and both private and commercial airplane in Vermont, Kansas, Missouri, Florida, Oklahoma, Colorado, Tennessee, and Canada”

        “Plaintiff’s allegations arise out of conduct that took place in Vermont, among other places

        The only reason Vermont features so prominently is because they need to establish jurisdiction in Vermont. The other places are irrelevant to that even if they are more substantial.

        1. You’re confusing the concepts of jurisdiction and choice of laws.

          The favorable statute of limitations explains why the plaintiff would want to frame his claim using substantive Vermont law. (Although as alleged the core tortious conduct took place in Vermont so that isn’t too outlandish. It would be a more interesting question if, say, Kansas had extended the statute of limitations and he wanted to try to argue the Kansas law should govern the claim.)

          But the fact that Vermont law governs the claim doesn’t mean that the case has to be brought in Vermont: courts anywhere in the country can analyze and apply Vermont law. (Of course, courts in Vermont do so much more often and are likely more familiar with it.) The defendant’s argument here wasn’t that the case should be governed by Kansas law: it was that he couldn’t be compelled to come to Vermont to litigate the case. If the defendant had won, the plaintiff could still have refiled his Vermont law claim in the District of Kansas.

      2. Aren’t statutes of limitations are generally considered to be procedural for choice-of-law purposes?

        1. Yup. I actually responded to him about that but the post is awaiting moderation because it includes two links. Such a stupid system.

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