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May 12, 2005
Salt Lake
Tribune
- News
Brief
The
10th U.S. Circuit Court of Appeals has upheld the dismissal of a
defamation suit filed by an association of schools for troubled
youths against a United Press International reporter. The 10th
Circuit on Tuesday agreed with a trial judge that the federal court
in Utah has no authority over the case because Thomas Houlahan, who
researched a story in 2003 about schools operated by the St.
George-based World Wide Association of Specialty Programs and
Schools, lives in Washington, D.C. In its suit, WWASP had alleged
that Houlahan falsely told parents that school officials abused
their children. (See below for full text of Court Opinion.)
_________________________________________________________________________________________________
Filed on May 10,
2005
Full text of
court opinion rejecting WWASPS lawsuit against UPI journalist
UNITED STATES
COURT OF APPEALS
FOR THE TENTH CIRCUIT
WORLD WIDE
ASSOCIATION OF SPECIALTY PROGRAMS AND SCHOOLS, a Utah corporation,
Plaintiff -
Appellant,
v.
THOMAS G.
HOULAHAN, a foreign individual,
Defendant -
Appellee.
No. 04-4181
(D.C. No. 2:04-CV-107-DAK)
(D. Utah)
ORDER AND
JUDGMENT(*)
____________________________________________________________
Before HENRY,
BRISCOE, and MURPHY, Circuit Judges.
____________________________________________________________
After examining
the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without
oral argument.
Plaintiff World
Wide Association of Specialty Programs and Schools, an association
of specialty schools for troubled teens, filed this diversity case
alleging defamation and intentional interference with prospective
economic advantage. The district court granted defendant Thomas G.
Houlahan's motion for dismissal, based on lack of personal
jurisdiction. We affirm.
Background
Facts
The World Wide
Association of Speciality Programs and Schools (the association)
maintains its principal place of business in St. George, Utah. Mr.
Houlahan, a reporter who resides in Washington, D.C., researched a
story for United Press International about alleged abuse at
association schools located in New York, South Carolina, Jamaica,
and Mexico. In its lawsuit, the association alleged that, while
investigating the story, the reporter made defamatory statements to
potential students, former students, parents of potential and former
students, an employee of a state agency responsible for licensing a
member school, and a Utah attorney who had filed numerous suits
against plaintiff. At the time of the contacts, these individuals
were located in Alaska, North Carolina, South Carolina, and
California.
Discussion
The association
asserts that, under Utah's long-arm statute, the court was
authorized to exercise specific jurisdiction over Mr. Houlahan
because the alleged acts caused injury in Utah: harm to the
association's sole source of funding the dues paid by member
schools. See Utah Code Ann. § 78-27-24.(1)
"This Court
reviews the district court's ruling on personal jurisdiction de
novo." Bell Helicopter Textron, Inc. v. Heliqwest Intern., Ltd., 385
F.3d 1291, 1296 (10th Cir. 2004). "The burden of establishing
personal jurisdiction over the defendant is on the plaintiff." Id.
at 1295. Where, as here, "the evidence presented on the motion to
dismiss consists of affidavits and other written materials the
plaintiff need only make a prima facie showing. The district court
must resolve all factual disputes in favor of the plaintiff." Id.
(citations omitted).
The Utah
Long-Arm statute is to be "applied so as to assert jurisdiction over
nonresident defendants to the fullest extent permitted by the due
process clause." Utah Code Ann. § 78-27-22. And to satisfy the
constitutional requirement of due process there must be "'minimum
contacts' between the defendant and the forum State." World-Wide
Volkswagen Co. v. Woodson, 444 U.S. 286, 291 (1980) (quoting Int'l
Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). "When the
'defendant has purposely directed his activities at residents of the
forum,' courts in that state may exercise specific jurisdiction in
cases that 'arise out of or relate to those activities.'" Bell
Helicopter Textron, 385 F.3d at 1296 (quoting Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 472-73 (1985) (further quotations
omitted)).
To support
specific jurisdiction, there must be "some act by which the
defendant purposefully avails itself of the privilege of conducting
activities within the forum State, thus invoking the benefits and
protections of its laws." Hanson v. Denckla, 357 U.S. 235, 253
(1958); see also Fidelity and Cas. Co. of N.Y. v. Phila. Resins
Corp., 766 F.2d 440, 445 (10th Cir. 1985) (quoting Hanson, 357 U.S.
at 253). The requirement of "purposeful availment" rules out
personal jurisdiction as the result of "random, fortuitous, or
attenuated contacts." Burger King, 471 U.S. at 475 (further
quotation omitted). In the instant case, the district court
correctly determined that the record lacked any evidence of the
requisite purposeful availment.
Plaintiff also
asserts that the court abused its discretion by denying limited
discovery designed to uncover the publication of defamatory comments
in Utah. See Toys "R" Us, Inc. v. Step Two, S.A., 318 F.3d 446, 458
(3rd Cir. 2003) (determining that district court erred in denying
plaintiff's "specific, non-frivolous," and "reasonable" request for
jurisdictional discovery, in order to "help determine whether
jurisdiction exists under the federal long-arm statute"). Plaintiff
apparently made a general request for discovery in its response to
defendant's dismissal motion. In the absence of an explicit,
supported motion for discovery, this court cannot say that the
district court abused its discretion in denying the request.
Appellant's
motion to file a reply brief out of time and motion to resubmit
reply with proper address are GRANTED. The judgment of the district
court is AFFIRMED.
Entered for the
Court
Robert H. Henry
Circuit Judge
______________________________________________________________
FOOTNOTES
Click footnote
number to return to corresponding location in the text.
*. This order
and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments;
nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
________________________________________________________________
1. The Utah
long-arm statute authorizes an exercise of specific jurisdiction
over:
Any person ...
whether or not a citizen or resident of this state, who in person or
through an agent does any of the following enumerated acts, submits
himself . . . to the jurisdiction of the courts of this state as to
any claim arising out of or related to: . . . (3) the causing of any
injury within this state whether tortious or by breach of warranty.
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