                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Joel Rosenthal,
Plaintiff Below, Petitioner                                                      FILED
                                                                                June 26, 2015
                                                                            RORY L. PERRY II, CLERK
vs) No. 14-1041 (Pocahontas County 14-C-15)                               SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA
Christopher Mihans,
Defendant Below, Respondent

                              MEMORANDUM DECISION

        Petitioner Joel Rosenthal, appearing pro se, appeals the order of the Circuit Court of
Pocahontas County, entered on September 23, 2014, that dismissed his defamation action for a
lack of personal jurisdiction over Respondent Christopher Mihans pursuant to Rule 12(b)(2) of the
West Virginia Rules of Civil Procedure. Respondent, by counsel Christopher T. Pritt, filed a
summary response, and petitioner filed a reply.

        The Court has considered the parties’ briefs and the records in each case. The facts and
legal arguments are adequately presented, and the decisional process would not be significantly
aided by oral argument. Upon consideration of the standard of review, the briefs, and the records
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

       Petitioner operates a wild animal rehabilitation facility in Pocahontas County, West
Virginia. Respondent, a hunter residing in the State of North Carolina, has launched a vigorous
campaign against petitioner’s “hands-on” approach to wild animal rehabilitation on the social
media website Facebook and various other sites on the internet.1 Respondent has also contacted
the West Virginia Division of Natural Resources, by email and a single telephone call, and a West
Virginia television reporter, by email, regarding petitioner’s techniques. For certain of these
emails, respondent used his email account with his employer, which does business in West
Virginia.

        On April 7, 2014, petitioner filed a complaint in the Circuit Court of Pocahontas County
alleging that respondent had defamed him in criticizing his method of rehabilitating animals.2

       1
          Respondent accuses petitioner of making wild animals dependent on him and further
alleges, in colorful terms, that petitioner becomes too attached to the animals.
       2
         Petitioner asked for (1) an apology; (2) an injunction requiring respondent to remove all
offending postings; (3) $500,000 in compensatory damages; (4) $1,000,000 in punitive damages;
and (5) court costs.
                                                1
Petitioner had respondent served with the complaint through the Sheriff’s Department of Franklin
County, North Carolina.3 On May 5, 2014, respondent filed a Rule 12(b)(2) motion to dismiss
petitioner’s complaint for a lack of personal jurisdiction over respondent. Petitioner filed a
response to the motion on May 8, 2014.

        At a July 25, 2014, hearing on the Rule 12(b)(2) motion to dismiss, the circuit court heard
the parties’ arguments and then ruled that petitioner’s complaint would be dismissed.
Respondent’s counsel subsequently submitted a proposed dismissal order. On August 1, 2014,
petitioner filed objections to the proposed order. Petitioner also filed multiple motions asking the
circuit court to reconsider its decision to dismiss the complaint. Also, petitioner submitted
numerous amended complaints.

        In its order entered on September 23, 2014, the circuit court did not rule on the issues of
whether petitioner’s many motions for reconsideration were properly filed or whether leave was
granted for petitioner to file his amended complaints, but did consider petitioner’s allegations
contained in those pleadings. The circuit court noted that the following two-part test applies for
determining whether a West Virginia court may exercise personal jurisdiction over a non-resident
defendant: the court must determine (1) whether the defendant’s actions satisfy this State’s
long-arm statute, West Virginia Code § 56-3-33; and (2) whether the defendant’s contacts with this
State satisfy the requirements of the Due Process Clause of the Fourteenth Amendment to the
United States Constitution.4 See Syl. Pt. 1, Nezan v. Aries Technologies, Inc., 226 W.Va. 631, 633,
704 S.E.2d 631, 633 (2010) (quoting Syl. Pt. 5, Abbott v. Owens-Corning Fiberglas Corp., 191
W.Va. 198, 200, 444 S.E.2d 285, 287 (1994)). The circuit court found that while petitioner’s
argument focused on the test’s second prong, the court was granting respondent’s motion to
dismiss for petitioner’s failure to demonstrate that his allegations showed one of the seven
circumstances listed in West Virginia Code § 56-3-33. The circuit court determined that the only
potentially applicable subsection was West Virginia Code § 56-3-33(a)(4), which provides that a
non-resident defendant may be sued in this State for “[c]ausing tortious injury in this [S]tate by an
act or omission outside this [S]tate if he or she regularly does or solicits business, or engages in


       3
          In its order, the circuit court questioned the adequacy of this method of service because it
was not the method set forth in this State’s long-arm statute, West Virginia Code § 56-3-33;
however, the court did not dismiss the complaint on that issue. See W.Va. Code § 56-3-33(f) (“The
provision for service of process herein is cumulative and nothing herein contained shall be
construed as a bar to the plaintiff in any action or proceeding from having process in such action
served in any other mode or manner provided by the law of this state or by the law of the place in
which the service is made for service in that place in an action in any of its courts of general
jurisdiction.”).
       4
          See International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (“[D]ue process
requires only that in order to subject a defendant to a judgment in personam, if he be not present
within the territory of the forum, he have certain minimum contacts with it such that the
maintenance of the suit does not offend traditional notions of fair play and substantial justice.”)
(internal quotations and citations omitted).
                                                  2
any other persistent course of conduct, or derives substantial revenue from goods used or
consumed or services rendered in this state.” (emphasis added) The circuit court first found that
respondent’s employer’s business activities in West Virginia were not relevant because petitioner
was not attempting to sue respondent for anything related to his job.5 The circuit court then
determined that while respondent may be engaging in a persistent course of conduct with regard to
petitioner—outside of work—any such conduct could not be said to be occurring “in this [S]tate”
as required by West Virginia Code § 56-3-33(a)(4). The circuit court noted that “[i]t is undisputed
that [respondent] has not visited [West Virginia] during the voicing of his opposition to
[petitioner’s] techniques” and concluded that petitioner “does not allege any conduct which took
place within this [S]tate, sufficient for the Court to exercise jurisdiction over the person of
[respondent].” Accordingly, the circuit court dismissed the complaint pursuant to Rule 12(b)(2)
for a lack of personal jurisdiction over respondent.

        Petitioner now appeals the circuit court’s September 23, 2014, dismissal order. Because the
circuit court did not hold an evidentiary hearing on the issue of personal jurisdiction, we apply our
customary de novo standard of review. See Easterling v. American Optical Corporation, 207
W.Va. 123, 127, 529 S.E.2d 588, 592 (2000) (more deferential standard of review applies when
evidentiary hearing is held). Also given the lack of such a hearing, there need only be a prima facie
demonstration of personal jurisdiction, but, as the advocate for jurisdiction, petitioner is the party
required to make that showing. Id. (internal quotations and citations omitted).

        On appeal, as he did in the circuit court, petitioner focuses his argument on whether
sufficient minimum contacts existed between respondent and this State so that respondent can be
brought into court in Pocahontas County, West Virginia, consistent with federal due process.
Respondent counters that petitioner addresses the wrong prong of the applicable two-part test
under Abbott and Nezan and that, before he discusses the minimum contacts analysis,6 petitioner
must first satisfy this State’s long-arm statute, West Virginia Code § 56-3-33. See Nezan, 226
W.Va. at 641, 704 S.E.2d at 641 (“West Virginia’s long-arm statute, contained in W. Va. Code §
56-3-33, details seven circumstances through which a non-resident may be subjected to the
jurisdiction of the West Virginia courts[.]”).
        In his reply brief, petitioner contends that his allegations—viewed in the light most
favorable to him 7 —show that personal jurisdiction exists over respondent in West Virginia

       5
          Although the circuit court determined that only West Virginia Code § 56-3-33(a)(4) was
potentially applicable to this case, on appeal, petitioner argues that personal jurisdiction exists over
respondent, in part, because of W.Va. Code § 56-3-33(a)(1), which provides that a non-resident
defendant may be sued in this State if he transacts “any business in this [S]tate.” Therefore, we will
discuss the circuit court’s finding that respondent’s employer’s West Virginia activities were
irrelevant when we address petitioner’s argument that W.Va. Code § 56-3-33(a)(1) provides
jurisdiction. See Discussion infra.
       6
            See fn. 4, supra.
       7
            See Easterling, 207 W.Va. at 127, 529 S.E.2d at 592 (internal quotations and citations
omitted).
                                                   3
pursuant to West Virginia Code §§ 56-3-33(a)(1) and (4). We disagree. First, petitioner alleges that
respondent is transacting business in this State pursuant to West Virginia Code § 56-3-33(a)(1)
because respondent’s employer does so. As explained by the circuit court in its order, respondent’s
employer’s transaction of business in West Virginia might be relevant if petitioner wanted to bring
respondent into court because of some work-related activity, but there is no allegation that
respondent’s campaign against petitioner’s animal rehabilitation techniques constitute part of his
job.8 We agree with the circuit court and find that petitioner makes no demonstration that there is
jurisdiction over respondent pursuant to West Virginia Code § 56-3-33(a)(1).

        Second, while petitioner argues that jurisdiction exists pursuant to West Virginia Code §
56-3-33(a)(4) because there has been “[a] tortious injury in this [S]tate [caused] by an act or
omission outside this [S]tate,” we agree with the circuit court that petitioner takes a truncated view
of the statute. Even when an injury occurs in this State caused by an act or omission outside this
State, West Virginia Code § 56-3-33(a)(4) provides personal jurisdiction over a non-resident
defendant only when “he or she regularly does or solicits business, or engages in any other
persistent course of conduct, or derives substantial revenue from goods used or consumed or
services rendered in this state.” After reviewing petitioner’s complaint, various amended
complaints, and other pleadings, the circuit court determined that jurisdiction over respondent did
not exist pursuant to West Virginia Code § 56-3-33(a)(4). We have examined the record in this
case and also conclude that West Virginia Code § 56-3-33(a)(4) does not provide a basis for
jurisdiction. Therefore, we determine that the circuit court did not err in dismissing petitioner’s
action pursuant to Rule 12(b)(2) for a lack of personal jurisdiction over respondent.

       For the foregoing reasons, we affirm.9
                                                                                           Affirmed.
ISSUED: June 26, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II


       8
         All petitioner alleges is that, like most people, respondent occasionally utilizes his work
email for personal endeavors.
       9
          Petitioner contends that respondent has conceded that respondent defamed him because
respondent does not address his substantive allegations. We note that (1) respondent’s obligation
to answer petitioner’s substantive allegations became suspended once respondent filed a
dispositive motion pursuant to Rule 12(b) of the Rules of Civil Procedure; and (2) the truth of
petitioner’s substantive allegations has no relevance as to the determination of whether personal
jurisdiction exists over respondent.
                                                  4
