Dr. Jack Gorman, a Pennsylvania podiatrist, was originally interviewed in connection with an online publication, Phillyburbs.com. A portion of that article was then reproduced in the malpractice news section of the Podiatry Management Online News Forum, PM News, The Voice of Podiatrists. Subsequently, several other podiatrists posted comments on the interview on the PM News website. Their comments blamed the rising cost of medical malpractice insurance, in part, on individuals such as Dr. Gorman since Dr. Gorman was willing to “travel anywhere and say anything to support frivolous claims.” He was also referred to as a “leech on the system.” Dr. Gorman sued these doctors for defamation, intentional infliction of emotional distress, and invasion of privacy. The suit was filed in the United States District Court for the Eastern District of Pennsylvania. GG&M associate, Chad Goebel, and I represented one of the podiatrists, Dr. Allen Jacobs, who lives and works in Missouri. All defendants were non-residents of Pennsylvania and all defendants filed Motions to Dismiss for lack of personal jurisdiction and for failure to state a claim on which relief could be granted.

United States District Judge Stewart Dalzell held that Dr. Gorman had failed to establish the requisite minimum contacts with the Commonwealth of Pennsylvania and, accordingly, dismissed all claims against defendants for lack of personal jurisdiction. Gorman v. Jacobs, 597 F.Supp. 2d 541 (E.D. Pa. 2009).

Judge Dalzell held that in order to obtain personal jurisdiction over an out-of-state defendant who made an allegedly defamatory statement, plaintiff must first satisfy the “effects test” set forth in the United States Supreme Court decision in Calder v. Jones, 465 U.S. 783 (1984). Under the Calder effects test, the plaintiff must show that: (1) the defendant committed an intentional tort; (2) the plaintiff felt the brunt of the harm in the forum state such that the forum state can be said to be the focal point of the harm suffered by the plaintiff as a result of the tort; and (3) the defendant expressly aimed his tortious conduct at the forum such that the forum can be said to be the focal point of the tortious activity. In the instant case, Judge Dalzell held that while Dr. Gorman satisfied the first two prongs of the effects test, he did not satisfy the third prong. Judge Dalzell closely examined the website in question and stated that there was nothing about the website from the user’s point of view which would establish an intent on the part of the user to interact with Pennsylvania. Specifically, Judge Dalzell held:

“But nothing about the website from the user’s point of view announces that the website would direct user comments into Pennsylvania or any other particular state, and thus mere use of the PM News website does not establish intent to interact with Pennsylvania. Although PM News culled the article that instigated the defendants’ comments from a Pennsylvania source, nothing on the PM News website identifies the website or its newsletter as Pennsylvania specific. To the contrary, everything about the website confirms that it is directed to the national podiatry community at large.”

597 F. Supp 2d at 549-56.

Judge Dalzell also noted that even if a significant number of subscribers and visitors to the website were Pennsylvania residents, the Court could not infer from this that a user intentionally interacted with Pennsylvania via the website because a user does not have access to information concerning the location of the subscribers or users of the website.

Dr. Gorman argued that the content of the defendants’ comments, which contain references to Pennsylvania, establish that they expressly aimed at activities in Pennsylvania. However, Judge Dalzell carefully reviewed the comments at issue and found them to be general in nature and that nothing specifically implicated Pennsylvania. The Court held that a defendant must do more than refer to, or know of, the fact that the plaintiff resides or works in the forum state in order to establish personal jurisdiction in the state.

Since the claims in question arose from the posting of allegedly defamatory statements on the internet, Judge Dalzell also considered the “sliding scale” analysis established in Zippo Manufacturing Co. v. Zuppo Dot Com., Inc., 952 F.Supp. 1119 (W.D. Pa. 1997). The Zippo “sliding scale” test has won wide acceptance as the best approach for courts to use in assessing whether a non-resident’s internet activities would justify the exercise of personal jurisdiction. The Zippo sliding scale test examines how the particular website works. At one end of the scale are commercial interactive websites that “involve the knowing and repeated transmission of computer files over the internet,” and through which individuals actively engage in business with residents of a foreign jurisdiction. Id. at 1124. Exercise of personal jurisdiction over individuals actively engaged in such internet activity is proper. Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d 446, 452 (3d Cir. 2003). At the other end of the scale are passive websites where information is posted and users can only view it. Activities related to such websites do not have sufficient contacts with the forum to warrant the exercise of personal jurisdiction. Zippo, 952 F.Supp. at 1124. In the area between these two poles, the courts examine the “level of interactivity and commercial nature of the exchange that occurs on the website” to decide whether the exercise of personal jurisdiction is proper. Id. Under the Zippo test, how individuals use the website is equally, if not more, important than the features of the website itself. Because one can access websites from anywhere, the defendant’s internet activity - - whether it be website operation or use - - must show an intent to interact with the forum to justify the exercise of personal jurisdiction. The mere posting of information or advertisements on any internet website does not confer nationwide personal jurisdiction. Remick v. Manfredy, 238 F.3d 248, 259.(3d Cir. 2001).

Judge Dalzell noted that most cases applying the Zippo test concern the operators of websites, but non-operator users of a website can also be subject to personal jurisdiction. However, for a Court to exercise personal jurisdiction based on the use of a website (rather than its operation) something about the website must suggest to the user that residents of the forum state are the target audience. A statement found on the internet that simply mentions the forum state and the plaintiff’s relation to it, without some other indication that the forum was the intended target of the statement, is not sufficient to establish personal jurisdiction over the statement’s author.

After examining the individual comments made by each of the defendant doctors, Judge Dalzell concluded that their comments were not aimed at Pennsylvania, but rather all comments were directed to the national podiatry community at large. Since Judge Dalzell concluded that the Court did not have personal jurisdiction over the defendants, he did not reach the other question raised by defendants as to whether Dr. Gorman had even stated a claim upon which relief could be granted. No appeal was pursued by plaintiff from the order dismissing the case for lack of personal jurisdiction.