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Volokh Conspiracy

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


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….