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Who ever thought personal jurisdiction could be interesting?
Prologue
In April 2021, the CEO of a telehealth company was eating dinner with his wife at a hotel in a suburb of Nashville, Tennessee. At the same time, a group of high school students were out for prom night at the same hotel. The kids were loud and obnoxious, as kids on prom night can sometimes be.
The CEO asked the kids’ chaperone to have them quiet down. It isn’t clear what happened immediately afterward, but somehow the CEO, his wife, and two kids ended up in the hotel courtyard. One of the kids was a male wearing a red prom dress. The other kid (his date) was recording on his cell phone. The kid in the dress said to the CEO, “I chose what I want to wear so you can f*** off.” The CEO answered, “Is that right . . . is that right?” (Ellipsis in original.) The kid in the dress then started walking back toward the hotel lobby, and the CEO followed him. (Bad decision.) Then he said to the kid, “You look like an idiot.” (Worse decision.) After a few more words, the CEO reached across the kid in the dress and tried to slap the cell phone out of the hand of the kid’s date. (Worst decision.) Other people in the courtyard told the CEO to chill, and apparently the situation deescalated. The CEO and his wife ended up going somewhere else for dinner.
I don’t need to tell you what happened next, but I will. The video was 59 seconds long, and it captured all of the above. It did not include the beginning of the confrontation. The boyfriend posted the video on TikTok, which removed it after a short time. However, other TikTok users posted it on Twitter (currently known as X), where comedian Kathy Griffin saw it.
Enter Kathy Griffin
Now our story begins.
Kathy Griffin retweeted the video, and identified the CEO and his wife by name and by Tennessee town of residence, and said the CEO was with a Nashville, Tennessee-based company. She also included the Tennessee employer’s Twitter handle, which allowed her 2 million followers to tweet their outrage directly to the Tennessee employer. She urged her 2 million followers to make the CEO “online famous.” When the Tennessee employer fired the CEO and tweeted that it had done so, Ms. Griffin told the employer that it had better remove him from the Board of Directors, too. According to the court decision discussed below, Ms. Griffin “warned that keeping [the now-former CEO] on the Board would suggest that [the Tennessee employer] ‘intends to rehire’ him, adding that ‘the nation will remain vigilant.'” Not long afterward, the now-former CEO was also removed from the Board of Directors.
According to the court, “the [CEO and his wife] continued to receive threats and face harassment while some of Griffin’s followers celebrated by tweeting that they had succeeded.”
The ex-CEO and his wife sued Kathy Griffin in federal court in Tennessee. Ms. Griffin, who lives in California, asked to have the suit dismissed because the Tennessee court did not have personal jurisdiction over her. The court agreed, and threw out the lawsuit.
The plaintiffs appealed, and this week a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit ruled that Ms. Griffin will indeed have to defend in Tennessee against the plaintiffs’ claims of tortious interference with employment, intentional infliction of emotional distress, invasion of privacy, and negligence.
Civil Procedure for Dummies, and also for our Dear Readers, who are NOT dummies
Before a lawsuit can even get out of the starting gate, the court has to have jurisdiction — that is, legal authority over the parties and the subject matter. In this case, the court had jurisdiction over the subject matter. It also had jurisdiction over the ex-CEO and his wife because they both lived and worked in Tennessee. But Ms. Griffin’s attorneys argued that a Tennessee court had no jurisdiction over her because she lived in California and hadn’t engaged in enough activity in Tennessee.
To satisfy due process requirements*, you generally have to have enough “contacts” with a state before its courts can exercise jurisdiction over you. If you live or do business in the state, that’s good enough. Otherwise, you generally have to engage in some relatively significant activity in the state or “target” the state in some other way.
*All of the states have laws that provide more bases for personal jurisdiction, but due process was the only basis at issue in Kathy Griffin’s case.
Social media is a little complicated because our public posts can be seen by anyone, anywhere. A social media post won’t necessarily be enough to give courts in other states jurisdiction over the poster, even if people in that state see it. On the other hand, it could be.
That Kathy Griffin is always getting herself sued!
Kathy Griffin’s attorneys had a decent argument. Remember the Covington Catholic students at the March for Life rally in Washington D.C., a few years ago? Ms. Griffin had tweeted some mean things about those kids, and some of the kids tried to sue her in their home state of Kentucky. But their claims against her were dismissed because she had insufficient contacts with the state of Kentucky, and her tweets did not directly target their school or disclose where the kids lived. The only geographical reference made in her tweets was to Washington D.C., where the march took place.
This time it was different. Ms. Griffin disclosed the specific suburb of Nashville, Tennessee, where the ex-CEO and his wife lived. She included a direct link to his Tennessee employer’s Twitter account so that her 2 million followers could tweet directly to the Tennessee employer. The video she retweeted was created by a Tennessee resident. Her threats against the Tennessee employer arguably threatened the Tennessee economy. Based on all of this and more, the appeals court found that the federal court in Tennessee did have jurisdiction over Ms. Griffin. By her specific references to Tennessee, she asked for it, according to the court. (My paraphrase.)
The court did not make any findings about the merits of the lawsuit, so it is possible that Ms. Griffin will eventually win. But at the very least she will have to go through the hassle and expense of defending herself in a court more than 2,000 miles from home* and possibly in a less-friendly judicial forum than she might get in California.
*I am rounding the distance from Hollywood to Nashville, per Expedia.
Does Kathy Griffin even care? Should we?
Even if Kathy Griffin eventually loses her case, I doubt that she will be more than annoyed. She travels all the time, and also (I would guess) has plenty of money to pay her attorneys and two prevailing plaintiffs. More importantly, doxing people and trying to incite social media mobs seems to be her schtick. For her, this lawsuit is probably part of the cost of doing business.
But we regular folks — who may not have unlimited funds to pay attorneys or winning plaintiffs, and don’t have the time to traipse to and from courtrooms at the opposite end of the United States of America — need to be careful if we are inclined to dox or defame people on social media, or try to get them fired from their jobs. And, while we’re on the subject, those “damning” cell phone videos should be taken with a grain of salt. Every one I’ve seen (with one exception that I can think of) leaves out the context of the confrontation. If there were context, it might turn out that the “wrongdoer” was reacting understandably to out-of-line behavior by the “victim.” But that wouldn’t be as gratifying to watch, much less to pontificate about from the comfort of our own homes. 😉
NOTE TO READERS: Ms. Griffin apologized about the Trump severed head picture, but she took the apology back and reposted the picture after the former President claimed victory in the 2020 election.
IMAGE CREDITS: Photo of Kathy Griffin, Donald Trump, and friends from flickr, Creative Commons license, by tjd mcgv55f; Twitter logo in public domain. Map is my screen shot of the Expedia information.
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