Superior Court of Massachusetts, Suffolk, Business Litigation Session
Filed Date October 26, 2015
MEMORANDUM AND ORDER ON DEFENDANT CHERRI FOYTLIN'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
Edward P. Leibensperger,
Two individuals who collaborated to author an allegedly defamatory article and to post it on the internet, live in different states. One lives in Boston, Massachusetts and the other lives in Rayne, Louisiana. The party allegedly injured by the defamation sues both individuals in Boston. May the court exercise in personam jurisdiction over the Louisiana resident?
Plaintiff, Cardno ChemRisk, LLC (" ChemRisk"), is a Delaware limited liability company with a principal place of business in San Francisco, California. It is a scientific consulting firm with expertise in environmental engineering, ecotoxicology and occupational health. Among its services as a scientific consulting firm, ChemRisk offers expert testimony in litigation. ChemRisk has regularly provided consulting services and expert testimony in Massachusetts. ChemRisk is currently engaged in connection with litigation pending in Middlesex County Massachusetts. It also presents scientific seminars to lawyers in Massachusetts. In all of these endeavors, ChemRisk's reputation for objectivity, integrity and credibility is of paramount importance. In connection with litigation in Massachusetts, some of ChemRisk's clients have expressed concern about opposing counsel utilizing the allegedly defamatory article to undermine the credibility of ChemRisk's expert testimony. A simple Google search regarding ChemRisk by lawyers interested in engaging ChemRisk, or by lawyers looking for cross examination material, turns up the allegedly defamatory article that is the subject of this case.
Defendant, Cherri Foytlin, is a mother of six children. Her six children range in age from seven through eighteen years old. They all live at home with her, and she is the primary care giver. She resides in Rayne, Louisiana. Foytlin describes herself as an " environmental activist." Much of her work has centered around the infamous BP/Deep Water Horizon explosion and resulting oil spill in the Gulf Coast in 2010, and its effects on Gulf Coast residents and clean-up workers. In that regard, in the spring of 2011, she walked from New Orleans to Washington, D.C., 1, 243 miles, to raise awareness of the effects of the BP oil spill. In August 2011 she was part of a Gulf Coast delegation that traveled to Washington, D.C., to meet with federal officials about the BP oil spill. There is no evidence that she, herself, is a party to any litigation, putative class member or a clean-up worker.
Since at least August 2011, Foytlin has collaborated with defendant Karen Savage, a Boston resident. Both were part of the Gulf Coast delegation that traveled to Washington, D.C. in August 2011, to meet with federal officials about the BP oil spill. Both met and corresponded with the National Institute of Environmental Health Sciences, located in North Carolina, concerning the effects of the BP oil spill. In November 2012, Foytlin and Savage drafted a press release regarding the unfairness of a proposed settlement of health and medical claims that was being considered by plaintiffs in litigation with BP. In February, Foytlin and Savage collaborated on a press release and letter that they hand delivered to the Department of Justice in Washington, D.C.
The article that is the subject of ChemRisk's complaint for defamation is entitled " ChemRisk, BP and Purple Strategies: A Tangled Web of Not-So-Independent Science." The article was posted by the authors on the Huffington Post website on October 14, 2013. Foytlin identifies herself in the article as a " Gulf Coast based author and journalist" and Savage is identified as having " contributed to this article." Foytlin and Savage wrote and posted the article as part of their work to influence ongoing governmental proceedings and court cases regarding the oil spill and its clean-up and to advocate that the government protect and compensate clean-up workers for damages caused.
In particular, the subject article addresses whether a 2011 report by ChemRisk regarding the exposure of clean-up workers to certain chemicals was an " independent" study as touted by BP. The article challenges the independence of the ChemRisk report by, among other things, citing ChemRisk's history of doing the bidding for other polluters. The article references ChemRisk's work for Pacific Gas & Electric Company in connection with a lawsuit that was the basis for the movie Erin Brockovich. Among other things, the article states that " ChemRisk has a long, and on at least one occasion fraudulent, history of defending big polluters, using questionable ethics to help their clients avoid legal responsibility for their actions." Foytlin avers that she and Savage had a reasonable basis from published reports for the statements in the article. In addition, the authors performed some investigation. As stated in the subject article, " [w]hile conducting research for this article, we contacted ChemRisk for an interview with one of the authors of the study on clean-up workers' health after the BP disaster." The article goes on to describe the persons interviewed and the authors' frustration with the interview. The interview, on behalf of the authors, was conducted by Savage over the telephone. It is reasonable to infer that Savage was located in Boston when she conducted the interview.
The subject article does not concern any activities that occurred in Massachusetts. Foytlin avers that she was unaware of any work that ChemRisk performed or was likely to perform in Massachusetts. In her life, Foytlin has spent two days in Massachusetts for reasons unrelated to or concerning the article. She represents that she is " a person of limited means."
After the article appeared on the Huntington Post website, Foytlin re-posted the article to her " friends" on her Facebook page. She admits that some of her friends on her Facebook page are Massachusetts residents. According to ChemRisk's complaint, at least 12 out of 103 Facebook friends of Foytlin reside in Massachusetts. She specifically " tagged" the post to at least two Massachusetts residents. " Tagging" someone on Facebook is the functional equivalent of sending that person a letter. The author must select the specific individuals whom she wants to tag and then the people who are tagged will receive a notification that they can see the post. Foytlin also posted the article on her Twitter account to 235 followers, at least one of whom is a Massachusetts resident.
Foytlin moves to dismiss the complaint for lack of personal jurisdiction, pursuant to Mass.R.Civ.P. 12(b)(2). She submits affidavits from herself and Savage in support of the motion. ChemRisk submits an affidavit from its president in opposition to the motion.
When faced with a motion to dismiss for lack of personal jurisdiction under Mass.R.Civ.P. 12(b)(2), the plaintiff must establish " sufficient facts on which to predicate jurisdiction over the defendant." Good Hope Industries, Inc. v. Ryder Scott Co., 378 Mass. 1, 3, 389 N.E.2d 76 (1979). The court may determine a Rule 12(b)(2) motion on affidavits and other written evidence using the prima facie standard. Cepeda v. Kass, 62 Mass.App.Ct. 732, 737, 819 N.E.2d 979 (2004). Under this standard, the plaintiff's burden is one of production, not persuasion, and the court takes specific facts alleged by the plaintiff to be true, whether controverted or not. Id. at 738. ...