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"Kai the Hitchhiker" (and Convicted Murderer) Loses Libel Lawsuit on Personal Jurisdiction Grounds
From Judge Freda Wolfson's opinion Friday in McGillvary v. Grande (D.N.J.):
Caleb McGillvary …, proceeding pro se, filed this suit against Todd Grande …, alleging that Defendant defamed Plaintiff in a YouTube video …. Plaintiff is an individual currently incarcerated [for first-degree murder] in Trenton, New Jersey. Plaintiff has provided no information as to his domicile prior to incarceration in New Jersey. Defendant, a Delaware resident, is a licensed mental health therapist and counselor with a master's degree in Community Counseling and a Ph.D. in Counselor Education and Supervision. According to Defendant, he does not have any personal or professional presence in the state of New Jersey, nor has he ever advertised, advised, or sought business opportunities in New Jersey.
Defendant operates a YouTube channel … where he publishes videos analyzing mental health topics from a scientific perspective. These videos, on occasion, have included examining the mental health of public figures, such as Jeffrey Dahmer, Lorena Bobbitt, Gabby Petito, Norm Macdonald, and Alicia Head. As of the filing of Defendant's affidavit, the YouTube Channel had 873,117 subscribers. On March 6, 2021, Defendant published a video to his YouTube Channel entitled, "Kai the Hitchhiker | Analysis of 'Hatchet-Wielding' Personality," where Defendant discussed Plaintiff's biography, the viral news video that made Plaintiff famous, and the event that resulted in Plaintiff's current incarceration; he then provided a mental health analysis of Plaintiff.
{In 2013, while hitchhiking in California, Plaintiff rescued a California utility worker being assaulted by attacking the perpetrator with a hatchet. [The murder for which McGillvary was convicted was separate from this attack. -EV] Following the attack, Plaintiff took part in a colorful interview with a local news reporter near the scene of the incident. The video of the interview went viral, and eventually garnered over 1 million views on YouTube.}
On July 22, 2021, Plaintiff filed the present suit, alleging that Defendant's YouTube video contained slanderous remarks defaming Plaintiff. According to Plaintiff, this video caused mental anguish, emotional distress, damage to his reputation, damage to the marketability of his personality and intellectual property, loss of future earnings, and loss of revenue from social media and crowdfunding. As to damages, Plaintiff requests $2,908,630.08, which is the amount of ad revenue Plaintiff believes Defendant has received from the video, as well as injunctive relief removing the video from all platforms and forcing Defendant to surrender to Plaintiff the proceeds from, and ownership of, Defendant's YouTube channel and associated Patreon account….
I find that this Court does not have general jurisdiction over the Defendant. As Plaintiff admits, Defendant's domicile is clearly Delaware. Defendant resides in Delaware, and has worked as a therapist, counselor, and associate professor in Delaware. According to Defendant, he does not have any personal or professional presence in the state of New Jersey, nor has he ever advertised, advised, sought clientele, or pursued business opportunities in New Jersey. Defendant further attests that he has never maintained a bank account, obtained a phone line, held a professional license, and neither owned nor rented property in New Jersey. Indeed, there are no facts in the Complaint or Defendant's declaration indicating that Defendant has any ties whatsoever to New Jersey. As such, this Court does not have general jurisdiction over Defendant….
In the absence of general jurisdiction, a plaintiff may rely on specific jurisdiction where the cause of action is related to, or arises out of, the defendant's contacts with the forum. In analyzing a defendant's contacts, the Court must look "to the defendant's contacts with the forum State itself, not the defendant's contacts with persons who reside there." Practically, this means that "the plaintiff cannot be the only link between the defendant and the forum. Rather, it is the defendant's conduct that must form the necessary connection with the forum State that is the basis for its jurisdiction over him."
To establish specific jurisdiction over a nonresident defendant in an intentional tort case, such as defamation, the Court applies the three-pronged Calder "effects" test …: "First, the defendant must have committed an intentional tort. Second, the plaintiff must have felt the brunt of the harm caused by that tort in the forum, such that the forum can be said to be the focal point of the harm suffered by the plaintiff as a result of the tort. Third, the defendant must have expressly aimed his tortious conduct at the forum, such that the forum can said to be the focal point of the activity."
The Third Circuit has "consistently emphasized that the [effects test of] Calder should be applied narrowly."
Here, after liberally construing the pleadings, I find that Plaintiff has not met the Calder test. Even if this Court assumes that Defendant has met the first two prongs, Plaintiff has plainly not satisfied his burden as to the third prong. Plaintiff argues that this Court has specific jurisdiction because Defendant "continuously and systematically" broadcasts his videos to, and solicits funds from, New Jersey for commercial purposes. But this, alone, is insufficient. Plaintiff avers no specific facts indicating that Defendant expressly aimed the relevant video at New Jersey, rather than to the general public nationwide. And such facts are necessary, as Due Process requires that a defendant "purposely avails" himself or herself of a forum, which "ensures that a defendant will not be haled into a jurisdiction solely as a result of 'random,' 'fortuitous,' or 'attenuated contacts[.]'" As such, the Third Circuit has cautioned that "the mere posting of information or advertisements on an internet website," without express aim at a forum, "does not confer … personal jurisdiction."
Plaintiff has failed to meet his burden of showing that Defendant's video was expressly aimed at New Jersey. Defendant's YouTube Channel and its videos are passive, Defendant's videos are intended for a wide audience and may be viewed by any person in any location…. And while Defendant did publish a video specifically about Plaintiff, this, alone is not enough for this Court to establish personal jurisdiction over Defendant. A "plaintiff cannot be the only link between the defendant and the forum." Other than his mere presence in the state, Plaintiff has alleged no facts indicating that the relevant video is expressly aimed at New Jersey. Nor has Plaintiff provided any other relevant links between Defendant and New Jersey that might be indicia of express aim at New Jersey. Defendant does not have a personal or professional presence in New Jersey, nor has he ever advertised, advised, or sought business opportunities specifically in New Jersey….
