[Cite as Kauffman Racing Equip., L.L.C., v. Roberts, 126 Ohio St.3d 81, 2010-Ohio-2551.]




KAUFFMAN RACING EQUIPMENT, L.L.C., APPELLEE, v. ROBERTS, APPELLANT.
               [Cite as Kauffman Racing Equip., L.L.C. v. Roberts,
                        126 Ohio St.3d 81, 2010-Ohio-2551.]
Civil procedure — Long-arm jurisdiction — Alleged defamation via Internet —
        Right to due process not violated here — Judgment affirmed.
     (No. 2008-1038 — Submitted April 22, 2009 — Decided June 10, 2010.)
       APPEAL from the Court of Appeals for Knox County, No. 07-CA-14,
                                    2008-Ohio-1922.
                                 __________________
        PFEIFER, J.
        {¶ 1} In this case, we address whether an Ohio court can properly assert
personal jurisdiction over a nonresident defendant when jurisdiction is predicated
on that defendant’s publication of allegedly defamatory statements on the
Internet. For the reasons that follow, we hold that the trial court erred when it
declined to assert personal jurisdiction over the nonresident defendant in this case.
                        Factual and Procedural Background
        {¶ 2} Appellee, Kauffman Racing Equipment, L.L.C. (“KRE”), is an
Ohio limited liability company that constructs engine blocks and related high-
performance automotive equipment for public sale.                 Although its business
dealings are nationwide, KRE maintains its sole business operations and office in
Glenmont, Ohio.
        {¶ 3} Appellant, Scott Roberts, is a 30-year resident of Virginia. Roberts
has never physically entered Ohio. On February 6, 2006, using the name “Central
Virginia Machine,” Roberts purchased from KRE an MR-1 Pontiac engine block
after viewing the block on KRE’s website.
                            SUPREME COURT OF OHIO




       {¶ 4} In October 2006, eight months after purchasing the engine block,
Roberts contacted KRE by telephone, claiming that the block was defective.
Although its products are sold “as is,” KRE offered to retrieve the block from
Virginia and bring it back to KRE’s Ohio office for inspection. KRE and Roberts
agreed that if KRE could verify that the product was defective, it would buy back
the engine block at the price paid by Roberts.
       {¶ 5} KRE’s inspection revealed that after KRE had delivered the block
to Roberts, substantial modifications had been made from the block’s original
specifications. When KRE contacted Roberts and presented this information,
Roberts admitted that Central Virginia Machine had altered the block. Because
KRE believed that Roberts’s modifications were the cause of the defects, it
declined to buy back the block and instead shipped it back to Roberts in Virginia.
       {¶ 6} Roberts was dissatisfied. As a result, from October 18, 2006,
through November 2006, Roberts posted numerous rancorous criticisms of KRE
on various websites devoted to automobile racing equipment and related subjects.
His commentary appeared on the public-forum section of the websites
PerformanceYears.com and PontiacStreetPerformance.com and in an item
description on the Internet auction website, eBay Motors.
       {¶ 7} Roberts sought to affect KRE’s reputation. In an October 18, 2006
post on the PerformanceYears.com website, Roberts wrote:
       {¶ 8} “Bought a MR-1 Block from Kauffman in march [sic] of this year
***
       {¶ 9} “Now, I have and have had since the day the block was delivered,
a USELESS BLOCK. I didn’t say worthless! I plan to get a lot of mileage out of
it[.] And when i’m [sic] done Steve Kauffman will be able to attest to its worth."
(Capitalization sic.)
       {¶ 10} Later the same day, Roberts added:




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                                January Term, 2010




       {¶ 11} “I did send it back. They still have it. Steve Kauffman admitted
on the phone that he got similar numbers on the sonic test as i [sic] did but he
won’t take it back because I did some work to it and have had it to [sic] long. I
guess it doesn’t matter that the day I got it all of the defects exsisted [sic] and
nothing I have done caused them. But don’t worry about that. What I loose [sic]
in dollars I will make up in entertainment at their expence [sic].” (Boldface sic.)
       {¶ 12} The following day, October 19, 2006, Roberts wrote:
       {¶ 13} “You don’t seem to understand. As far as Steve kauffinan [sic] is
concerned the issue is resolved. * * * Again, this is not to get a resolution. I have
a much bigger and dastardly plan than that and this is the perfect place to start. * *
* (LOL) * * * Here is another good board to visit! * * * Just trying to help other
potential victims.” (Emoticons omitted.)
       {¶ 14} On the eBay Motors auction site, Roberts ostensibly listed the
block for sale. In the item description, he wrote:
       {¶ 15} “This is a Kauffman MR-1 Block. It has some real issues. * * *
Steve Kaufmann [sic] says it’s the best aftermarket block out there for a Pontiac,
but I now know better. * * * Basically this block is junk and I have bought an IA-
II block to replace it. It has never been assembled. * * * Also the service you
would get from Steve Kauffman of K&M performance is less than honorable. I
brought the issues to his attention and he basically gave me the middle finger
salute. He would not take it back because I had it for more than 90 days. I will
never do business with Kauffman or KRE again. Not just because of the block
issues but mostly the lack of service issues. E-mail me and I will tell you the
whole story. However the block (junk) is for sale ‘as is’!”
       {¶ 16} Roberts explained his eBay Motors auction in another post on
PerformanceYears.com:
       {¶ 17} “As far as the block on e-bay. Thats [sic] nothing more than
getting the FACTS out to more people. Do you believe anyone will read that add



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[sic] and buy it? I can assure you this block issue is faaaaar from over. Do you
think I would spread this around like I have and plan to if I thought I couldn’t
back EVERYTHING up?
        {¶ 18} “Again, I am not here to stir any pots. I posted facts I can back up
100%. I can’t control what others say or do!” (Capitalization sic.)
        {¶ 19} Steve Kauffman of KRE personally received separate inquiries
regarding Roberts’s Internet postings from at least five Ohio residents.
        {¶ 20} Consequently, KRE filed a complaint in Knox County Court of
Common Pleas seeking money damages from Roberts for defamation and
intentional interference with contracts and business relationships. The trial court
granted Roberts’s motion to dismiss for lack of personal jurisdiction on June 1,
2007, and dismissed KRE’s complaint.
        {¶ 21} KRE appealed. The Fifth District Court of Appeals reversed the
trial court’s judgment. Kauffman Racing Equip., L.L.C. v. Roberts, Knox App.
No. 07-CA-14, 2008-Ohio-1922, ¶ 36. The court of appeals held that the Ohio
long-arm statute and Civ.R. 4.3(A) confer jurisdiction on the trial court and that
the exercise of personal jurisdiction over Roberts did not deprive him of his right
to due process of law under the Fourteenth Amendment to the United States
Constitution. Id. at ¶ 23.
        {¶ 22} The cause is before this court upon the acceptance of a
discretionary appeal. Kauffman Racing Equip., L.L.C. v. Roberts, 119 Ohio St.3d
1471, 2008-Ohio-4911, 894 N.E.2d 331.
                                Law and Analysis
        {¶ 23} This case emanates from comments Roberts allegedly made on the
Internet.   Does this fact affect the way this court should approach the
jurisdictional question? In this case, we think not.
        {¶ 24} Over 50 years ago, the United States Supreme Court acknowledged
that   jurisdictional   jurisprudence   must    evolve   alongside    technological




                                          4
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developments: “As technological progress has increased the flow of commerce
between States, the need for jurisdiction over nonresidents has undergone a
similar increase.” Hanson v. Denckla (1958), 357 U.S. 235, 250-251, 78 S.Ct.
1228, 2 L.Ed.2d 1283. Along comes the Internet, and with it, the opportunity for
civil disputes has greatly expanded.      “As [Internet] availability expands, the
opportunity for civil disputes could expand proportionately, meaning that the
American court system will be called upon to adjudicate an even greater number
of cases. Since these cases will be predicated on Internet activity, the parties often
will be from different parts of the country, or even from different countries. As a
threshold issue, courts must decide whether such cases are properly before them.”
Scott T. Jansen, Oh, What a Tangled Web * * * The Continuing Evolution of
Personal Jurisdiction Derived from Internet-Based Contacts (2006), 71 Mo.L.Rev.
177, 180.
       {¶ 25} The rise in Internet-related disputes does not mean courts should
ignore traditional jurisdiction principles. “ ‘[T]he Internet does not pose unique
jurisdictional challenges. People have been inflicting injury on each other from
afar for a long time. Although the Internet may have increased the quantity of
these occurrences, it has not created problems that are qualitatively more
difficult.’ ”   Jansen, 71 Mo.L.Rev. at 182, 183, quoting Allen R. Stein,
Symposium, Personal Jurisdiction and the Internet: Seeing Due Process Through
the Lens of Regulatory Precision (2004), 98 Nw.U.L.Rev. 411.
       {¶ 26} In some cases involving the Internet, the Zippo test, developed in
Zippo Mfg. Co. v. Zippo Dot Com, Inc. (W.D.Pa.1997), 952 F.Supp. 1119, 1124,
has been employed to determine whether Internet activity between the defendant
and the forum state establishes jurisdiction. The court established a “sliding
scale” approach to Internet-based jurisdiction whereby the level of interactivity of
the website is examined to determine whether the exercise of personal jurisdiction
is proper. At one end of the scale are “situations where a defendant clearly does



                                          5
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business over the Internet.” Id. “A defendant purposefully avails itself of the
privilege of acting in a state through its website if the website is interactive to a
degree that reveals specifically intended interaction with residents of the state.”
Neogen Corp. v. Neo Gen Screening, Inc. (C.A.6, 2002), 282 F.3d 883, 890. At
the other end of the Zippo scale are informational websites. Zippo, 952 F.Supp.2d
at 1124. But as Roberts points out in his brief, “[t]he Zippo model was developed
in a commercial or business context and is factually distinct from this case.”
When the Internet activity in question “is non-commercial in nature, the Zippo
analysis * * * offers little to supplement the traditional framework for considering
questions of personal jurisdiction.” Oasis Corp. v. Judd (S.D.Ohio 2001), 132 F.
Supp.2d 612, 622, fn. 9, citing Mink v. AAAA Dev. L.L.C., (C.A.5, 1999), 190
F.3d 333, 336. We continue, then, with a traditional jurisdictional analysis.
       {¶ 27} Personal jurisdiction is a question of law that appellate courts
review de novo. In this case, upon Roberts’s motion to dismiss, it became KRE’s
burden to show that the trial court had personal jurisdiction over Roberts; because
the trial court decided Roberts’s Civ.R. 12(B)(2) motion upon written submissions
and without an evidentiary hearing, KRE had to make only a prima facie showing
of jurisdiction. Fallang v. Hickey (1988), 40 Ohio St.3d 106, 107, 532 N.E.2d
117.   In making its determination, the court must “view allegations in the
pleadings and the documentary evidence in a light most favorable” to the plaintiff
and resolving all reasonable competing inferences in favor of the plaintiff.
Goldstein v. Christiansen (1994), 70 Ohio St.3d 232, 236, 638 N.E.2d 541.
       {¶ 28} Determining whether an Ohio trial court has personal jurisdiction
over a nonresident defendant involves a two-step analysis: (1) whether the long-
arm statute and the applicable rule of civil procedure confer jurisdiction and, if so,
(2) whether the exercise of jurisdiction would deprive the nonresident defendant
of the right to due process of law under the Fourteenth Amendment to the United
States Constitution. U.S. Sprint Communications Co. Ltd. Partnership v. Mr. K’s




                                          6
                                  January Term, 2010




Foods, Inc. (1994), 68 Ohio St.3d 181, 183-184, 624 N.E.2d 1048. We address
those two factors in turn.
          {¶ 29} Ohio’s long-arm statute, R.C. 2307.382, enumerates specific acts
that give rise to personal jurisdiction and provides:
          {¶ 30} “(A) A court may exercise personal jurisdiction over a person who
acts directly or by an agent, as to a cause of action arising from the person’s:
          {¶ 31} “* * *
          {¶ 32} “(3) Causing tortious injury by an act or omission in this state;
          {¶ 33} “ * * *
          {¶ 34} “(6) Causing tortious injury in this state to any person by an act
outside this state committed with the purpose of injuring persons, when he might
reasonably have expected that some person would be injured thereby in this
state.”
          {¶ 35} Civ.R. 4.3 allows service of process on nonresidents in certain
circumstances and mirrors the long-arm statute:
          {¶ 36} “(A) Service of process may be made outside of this state, as
provided in this rule, in any action in this state, upon a person who, at the time of
service of process, is a nonresident of this state or is a resident of this state who is
absent from this state. ‘Person’ includes an individual * * * who, acting directly
or by an agent, has caused an event to occur out of which the claim that is the
subject of the complaint arose, from the person's:
          {¶ 37} “ * * *
          {¶ 38} “(3) Causing tortious injury by an act or omission in this state,
including, but not limited to, actions arising out of the ownership, operation, or
use of a motor vehicle or aircraft in this state;
          {¶ 39} “ * * *
          {¶ 40} “(9) Causing tortious injury in this state to any person by an act
outside this state committed with the purpose of injuring persons, when the person



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to be served might reasonably have expected that some person would be injured
by the act in this state.”
        {¶ 41} Roberts contends that Ohio’s long-arm statute does not confer
personal jurisdiction because he did not direct the alleged tortious statements to
Ohio or publish them here. Despite the fact that Roberts’s publication of his
comments did not emanate from Ohio, those comments were received in Ohio.
KRE submitted evidence that at least five Ohio residents had seen the comments
posted by Roberts. In Fallang, 40 Ohio St.3d 106, 532 N.E.2d 117, paragraph
one of the syllabus, this court held, “Civ.R. 4.3(A)(3) authorizes assertion of
personal jurisdiction over a nonresident defendant in a defamation action when
publication of the offending communication occurs in Ohio.” In Fallang, the
defendant had written an allegedly defamatory letter and had sent it to a person in
Ohio. “The tort of libel occurs in the locale where the offending material is
circulated (published) by the defendant to a third party. Keeton v. Hustler
Magazine, Inc. (1984), 465 U.S. 770, 777, 104 S.Ct. 1473, 79 L.Ed.2d 790. In the
instant case, [the defamatory] letter was published in Ohio by virtue of its receipt
through the mail. Thus, under the principle announced in Keeton, supra, the tort
was committed in Ohio.” Fallang, 40 Ohio St.3d at 107, 532 N.E.2d 117.
        {¶ 42} Roberts posted his allegedly defamatory statements on the Internet,
ostensibly for the entire world to see. How much of the world saw the comments
is unknown; but we do know that at least five Ohioans saw Roberts’s statements.
The comments were thus published in Ohio.            Because Roberts’s allegedly
defamatory statements were published in Ohio, his alleged tort was committed in
Ohio, and he falls within the grasp of R.C. 2307.382(A)(3) and Civ.R. 4.3(A)(3).
        {¶ 43} But even if Roberts did not publish or circulate his statements
within the territorial boundaries of Ohio, he is not shielded from the reach of
Ohio’s long arm. “R.C. 2307.382(A)(6) and Civ.R. 4.3(A)(9) permit a court to
exercise personal jurisdiction over a nonresident defendant and provide for




                                         8
                                January Term, 2010




service of process to effectuate that jurisdiction if the cause of action arises from a
tortious act committed outside Ohio with the purpose of injuring persons, when
the nonresident defendant might reasonably have expected that some person
would be injured thereby in Ohio.” Clark v. Connor (1998), 82 Ohio St.3d 309,
313, 695 N.E.2d 751.
       {¶ 44} Thus, even if we assume that Roberts’s alleged tortious conduct
did not take place within the territorial boundaries of Ohio, he nonetheless “might
reasonably have expected that [KRE] would be injured thereby in this state.”
R.C. 2307.382(A)(6). When defamatory statements regarding an Ohio plaintiff
are made outside the state yet with the purpose of causing injury to the Ohio
resident and there is a reasonable expectation that the purposefully inflicted injury
will occur in Ohio, the requirements of R.C. 2307.382(A)(6) are satisfied. It is
clear from the postings that Roberts’s statements were made with the purpose of
injuring KRE. Therefore, the long-arm statute permits the exercise of personal
jurisdiction over Roberts in Ohio.
       {¶ 45} Ohio’s long-arm statute is not coterminous with due process.
Goldstein, 70 Ohio St.3d at 238, 638 N.E.2d 541, fn. 1. Therefore, although
Ohio’s long-arm statute confers personal jurisdiction over Roberts, an Ohio court
cannot exercise personal jurisdiction over Roberts if doing so would violate his
constitutional right to due process. The United States Supreme Court noted in
Internatl. Shoe Co. v. Washington that due process is satisfied if the defendant has
“minimum contacts” with the forum state such that the maintenance of the suit
does not offend “ ‘traditional notions of fair play and substantial justice.’ ”
(1945), 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95, quoting Milliken v. Meyer
(1940), 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278. The minimum-contacts
requirement is met when a nonresident defendant “purposefully avails [himself]
of the privilege of conducting activities within the forum State.” Hanson, 357
U.S. at 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283.



                                          9
                             SUPREME COURT OF OHIO




       {¶ 46} Personal jurisdiction can be either general or specific, depending
upon the nature of the contacts that the defendant has with the forum state. Conti
v. Pneumatic Prods. Corp. (C.A.6, 1992), 977 F.2d 978, 981.                 “General
jurisdiction is proper only where ‘a defendant's contacts with the forum state are
of such a continuous and systematic nature that the state may exercise personal
jurisdiction over the defendant even if the action is unrelated to the defendant's
contacts with the state.’ ” Bird v. Parsons (C.A.6, 2002), 289 F.3d 865, 873,
quoting Third Natl. Bank in Nashville v. WEDGE Group, Inc. (C.A.6, 1989), 882
F.2d 1087, 1089.       KRE does not allege that Roberts has continuous and
systematic contacts in Ohio such that he would be amenable to jurisdiction for
claims arising outside of Ohio.
       {¶ 47} Instead, KRE asserts that Ohio has specific jurisdiction over
Roberts. Specific jurisdiction applies when “a State exercises personal jurisdiction
over a defendant in a suit arising out of or related to the defendant's contacts with
the forum.” Helicopteros Nacionales de Colombia, S.A. v. Hall (1984), 466 U.S.
408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404, fn. 8. KRE alleges that its cause of
action is related to or arises out of the defendant's contact with Ohio.
       {¶ 48} In Bird, the court held that specific jurisdiction “is permissible
only if [a defendant’s] contacts with Ohio satisfy the three-part test that this court
established in Southern Machine Company v. Mohasco Industries, Inc., 401 F.2d
374, 381 (6th Cir.1968):
       {¶ 49} “ ‘First, the defendant must purposefully avail himself of the
privilege of acting in the forum state or causing a consequence in the forum state.
Second, the cause of action must arise from the defendant's activities there.
Finally, the acts of the defendant or consequences caused by the defendant must
have a substantial enough connection with the forum state to make the exercise of
jurisdiction over the defendant reasonable.’ ” Bird, 289 F.3d at 874.




                                          10
                                January Term, 2010




       {¶ 50} In this case, we, too, employ the three-part test from S. Machine,
401 F.2d at 381, in determining whether specific jurisdiction here is consistent
with due process.
       {¶ 51} The first S. Machine factor is whether the defendant purposefully
availed himself of the privilege of acting in the forum state or causing a
consequence in the forum state. “Purposeful availment” is present when the
defendant’s contacts with the forum state “proximately result from actions by the
defendant himself that create a ‘substantial connection’ with the forum State.”
(Emphasis sic.) Burger King Corp. v. Rudzewicz (1985), 471 U.S. 462, 475, 105
S.Ct. 2174, 85 L.Ed.2d 528, quoting McGee v. Internatl. Life Ins. Co. (1957), 355
U.S. 220, 223, 78 S.Ct. 199, 2 L.Ed.2d 223.           The defendant’s conduct and
connection with the forum must be such that he “ ‘should reasonably anticipate
being haled into court there.’ ” Id. at 474, quoting World-Wide Volkswagen Corp.
v. Woodson, (1980) 444 U.S. 286, 295, 100 S.Ct. 559, 62 L.Ed.2d 490. “This
‘purposeful availment’ requirement ensures that a defendant will not be haled into
a jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts,”
id. at 475, citing Keeton, 465 U.S. at 774, 104 S.Ct. 1473, 79 L.Ed.2d 790, or of
the “ ‘unilateral activity of another party or third person,’ ” id., quoting
Helicopteros Nacionales, 466 U.S. at 417, 104 S.Ct. 1868, 80 L.Ed.2d 404. In
certain circumstances, the “plaintiff’s residence in the forum may, because of
defendant’s relationship with the plaintiff, enhance the defendant’s contacts with
the forum. Plaintiff’s residence may be the focus of the activities of the defendant
out of which the suit arises.” Keeton, 465 U.S. 770 at 780, 104 S.Ct. 1473, 79
L.Ed.2d 790.
       {¶ 52} This is a defamation case.        The United States Supreme Court
addressed purposeful availment in regard to jurisdiction in defamation cases in
Calder v. Jones (1984), 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804. In
Calder, a California resident and actress, Shirley Jones, brought a libel action in



                                          11
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California against Florida-resident employees of the National Enquirer, a Florida
corporation. Id. at 785. The defendants were the writer and editor of an article
that was written in Florida and appeared in the National Enquirer, alleging that
Jones drank so heavily that she was unable to fulfill her professional obligations.
Id. at 785-786, 788-789, fn. 9. The court held that jurisdiction was proper in
California because “[t]he allegedly libelous story concerned the California
activities of a California resident.     It impugned the professionalism of an
entertainer whose television career was centered in California. The article was
drawn from California sources, and the brunt of the harm, in terms of [Jones’s]
emotional distress and the injury to her professional reputation, was suffered in
California. In sum, California is the focal point both of the story and of the harm
suffered. Jurisdiction over petitioners is therefore proper in California based on
the ‘effects’ of their Florida conduct in California.” Id at 788-789.
        {¶ 53} The defendants argued that California lacked personal jurisdiction
over them because it was their publisher that was responsible for the circulation of
the article in California, not they.    The defendants analogized themselves to
welders employed in Florida who worked on a boiler that subsequently exploded
in California. They argued that although jurisdiction would be proper over the
manufacturer, it should not be applied to welders, who have no control over and
derive no direct benefit from their employer’s sales in another state.
        {¶ 54} The court exploded the defendants’ boiler analogy, focusing on the
targeted nature of their activity:
        {¶ 55} “Whatever the status of their hypothetical welder, petitioners are
not charged with mere untargeted negligence.         Rather, their intentional, and
allegedly tortious, actions were expressly aimed at California. Petitioner South
wrote and petitioner Calder edited an article that they knew would have a
potentially devastating impact upon respondent. And they knew that the brunt of
that injury would be felt by respondent in the State in which she lives and works




                                         12
                               January Term, 2010




and in which the National Enquirer has its largest circulation.        Under the
circumstances, petitioners must ‘reasonably anticipate being haled into court
there’ to answer for the truth of the statements made in their article. World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. at 297, 100 S.Ct. at 567, 62 L.Ed.2d
490; Kulko v. Superior Court, 436 U.S. 84, 97-98, 98 S.Ct. 1690, 1699-1700, 56
L.Ed.2d 132 (1978); Shaffer v. Heitner, 433 U.S. 186, 216, 97 S.Ct. 2569, 2586,
53 L.Ed.2d 683 (1977). An individual injured in California need not go to Florida
to seek redress from persons who, though remaining in Florida, knowingly cause
the injury in California.” Calder, 465 U.S. at 789-790, 104 S.Ct. 1482, 79 L.Ed.2d
804.
        {¶ 56} To rephrase the court’s conclusion in Calder in a question, should
a company injured in Ohio need to go to Virginia to seek redress from a person
who, though remaining in Virginia, knowingly caused injury in Ohio? Like the
defendants in Calder, Roberts is not alleged to have engaged in untargeted
negligence.   Roberts’s Internet commentary reveals a blatant intent to harm
KRE’s reputation. Roberts knew that KRE was an Ohio company. Roberts
impugned the activities that KRE undertakes in Ohio. Roberts hoped that his
commentary would have a devastating effect on KRE and that if there were
fallout from his comments, the brunt of the harm would be suffered in Ohio.
        {¶ 57} The Sixth Circuit Court of Appeals applied the Calder “effects”
test narrowly in Reynolds v. Internatl. Amateur Athletic Fedn. (1994), 23 F.3d
1110. In that case, Butch Reynolds, an Olympic gold-medal-winning track star
from Ohio, brought a defamation claim against the International Amateur Athletic
Federation (“IAAF”) for its publication of a press release announcing that
following a Monte Carlo track meet, Reynolds had tested positive for banned
substances.   Reynolds alleged personal jurisdiction against the nonresident
defendant, IAAF, because its defamatory acts had brought injury to Reynolds in
Ohio.



                                       13
                             SUPREME COURT OF OHIO




       {¶ 58} The court held:
       {¶ 59} “We find Calder distinguishable for several reasons. First, the
press release concerned Reynolds' activities in Monaco, not Ohio. Second, the
source of the controversial report was the drug sample taken in Monaco and the
laboratory testing in France. Third, Reynolds is an international athlete whose
professional reputation is not centered in Ohio. Fourth, the defendant itself did
not publish or circulate the report in Ohio; Ohio periodicals disseminated the
report. Fifth, Ohio was not the ‘focal point’ of the press release. The fact that the
IAAF could foresee that the report would be circulated and have an effect in Ohio
is not, in itself, enough to create personal jurisdiction. World-Wide Volkswagen
Corp., 444 U.S. at 295, 100 S.Ct. at 566[, 62 L.Ed.2d 490]. Finally, although
Reynolds lost Ohio corporate-endorsement contracts and appearance fees in Ohio,
there is no evidence that the IAAF knew of the contracts or of their Ohio origin.
Calder is a much more compelling case for finding personal jurisdiction.”
Reynolds, 23 F.3d at 1120.
       {¶ 60} The within case is much closer to Calder than it is to Reynolds.
The distinguishing aspects in Reynolds are not at play here. Unlike the IAAF’s
statements about Reynolds’s Monaco drug test, Roberts’s statements concerned
KRE’s Ohio activities – the manufacture and postsale inspection of the engine
block. Unlike Reynolds, who ran races throughout the world, KRE’s reputation is
centered in Ohio, where it performs all its work. Also, Roberts’s Internet postings
were published to Ohio residents by Roberts, not by third parties. In sum, the
facts of this case square with Calder rather than Reynolds.
       {¶ 61} We note that neither Calder nor Reynolds involved Internet
communication of the allegedly defamatory material. Two cases from the Sixth
Circuit do involve defamation cases arising from Internet activity; in both cases,
courts attempt to determine whether the case is closer to Calder or to Reynolds.




                                         14
                               January Term, 2010




       {¶ 62} In Cadle Co. v. Schlichtmann (C.A.6, 2005), 123 Fed.Appx. 675,
Schlichtmann, of Massachusetts, created a website to reveal what he believed to
be the unlawful activities of Cadle, an Ohio-based debt collector, in
Massachusetts.    Cadle filed suit in Ohio for defamation.       The court, while
proclaiming that Schlichtmann’s operation of a website would alone be
insufficient to establish jurisdiction, did acknowledge that Schlichtmann’s
statements on the website may be sufficient to justify jurisdiction. Id. at 678-679.
The court, in determining whether the defendant’s Internet statements gave rise to
the exercise of personal jurisdiction, then looked to Calder and Reynolds and
distinguished the two cases. Finding the facts more like those in Reynolds, the
court declined to assert personal jurisdiction because the alleged defamatory
statements were not related to any activities Cadle undertook in Ohio. Id. at 680.
In contrast, in this case, Roberts’s posts were premised solely on the activities of
KRE in Ohio.
       {¶ 63} In Oasis Corp., 132 F.Supp.2d 612, Oklahoma residents had
launched a “gripe site” concerning the products of an Ohio corporation. Id. at 614.
The Oklahoma residents had not purchased any item from Oasis, but were upset
that an Oasis water cooler had caused a fire in a building the defendants were
renting. Id. The district court declined to exercise personal jurisdiction because
there was no evidence to suggest that the defendants’ communications were
received by anyone in Ohio other than the plaintiff. Id. at 621. Further, the court
found more of a tie to Reynolds than to Calder:
       {¶ 64} “The facts of this case much more closely resemble Reynolds than
Calder. First, Defendants claim on their site that a defective Oasis water cooler
started a fire in Oklahoma, not Ohio. Second, Oasis is an international company
whose reputation is not centered in Ohio.         Third, Defendants’ site does not
specifically target an Ohio audience. As in Reynolds, ‘[t]he fact that [Defendants]
could foresee that [their proclamations would be viewed] and have an effect in



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Ohio is not, in itself, enough to create personal jurisdiction.’ ” Id. at 624, quoting
Reynolds, 23 F.3d at 1120.
        {¶ 65} In contrast to the plaintiff in Oasis Corp., Kauffman has alleged –
and produced at least some evidence – that the alleged defamatory statements
were communicated to Ohio residents other than Kauffman. Kauffman received
inquiries from at least five Ohio residents who read the Roberts postings.
Moreover, KRE is an Ohio-based company whose reputation is centered in Ohio
and that had engaged in commercial activity with Roberts before the controversy.
        {¶ 66} The Calder effects test is not beyond reproach. It has been called
“the source of considerable uncertainty because Internet-based activity can
ordinarily be said to cause effects in most jurisdictions.” Michael A. Geist, Is
There a There? Toward Greater Certainty for Internet Jurisdiction (2001), 16
Berkeley Tech.L.J. 1345, 1381. We find this criticism to be invalid. The effects
analysis necessitates conduct “calculated to cause injury” in a “focal point” where
the “brunt” of the injury is experienced. Calder, 465 U.S. at 789-791, 104 S.Ct.
1482, 79 L.Ed.2d 804. “While the effects of Internet conduct may be felt in many
[forums], the intent requirement allows a court to find a particular focal point.”
Jansen, 71 Mo.L.Rev. at 192.
        {¶ 67} Roberts argues that mere foreseeability by a nonresident defendant
of the effects in the forum state is insufficient to justify the exercise of personal
jurisdiction.   Roberts’s reliance on this conclusion is inapposite because the
effects of his conduct went well beyond foreseeability: Roberts intended the
effects of his conduct to be felt in Ohio. His statements were communicated with
the very purpose of having their consequences felt by KRE in Ohio.               The
contention that his statements were not made with the purpose of injuring some
person in Ohio is unavailing. The postings themselves indicate his purpose of
injuring Kauffman. For example, on his October 18, 2006, posting, Roberts
stated: “What I loose [sic] in dollars I will make up in entertainment at their




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expence [sic].” On October 19, 2006, he wrote: “Again, this is not to get a
resolution. I have a much bigger and dastardly plan than that and this is a good
place to start.” Many of the postings name Kauffman directly and specifically
mention Ohio.
       {¶ 68} Here, Roberts not only knew that Ohio resident KRE could be the
victim, he intended that it be the victim.            The allegedly defamatory
communications concerned KRE’s activities in Ohio. We are not dealing with a
situation in which jurisdiction is premised on a single, isolated transaction. The
posts detailed the transactions between Roberts and KRE.           Moreover, the
purchase of the engine block and subsequent transfers from Virginia to Ohio and
back again served as the foundation from which this dispute arose. Roberts’s
allegedly defamatory posts were predicated on his course of dealing with an Ohio
resident corporation. At least five Ohio residents other than Kauffman read these
postings. Finally, although KRE does business nationwide, its business reputation
is centered in Ohio, because Ohio is the location of its sole base of operations.
Roberts knew, and in fact intended, that the brunt of the harm caused be felt by
KRE in Ohio. Thus, the focal point of the damage was Ohio, and Roberts’s
actions therefore fulfill the requirement of causing a consequence in Ohio.
       {¶ 69} Here, KRE has made a prima facie showing that Roberts
purposefully availed himself of Ohio law. When viewed in a light most favorable
to KRE, the evidence shows that Roberts intentionally and tortiously sought to
harm KRE’s reputation and negatively affect its contracts and business
relationships. Therefore, KRE meets the first of the S. Machine factors.
       {¶ 70} Having recognized Roberts’s contacts in Ohio, we now address the
second S. Machine prong, which involves an analysis of whether KRE’s claims
arise from those contacts. “If a defendant’s contacts with the forum state are
related to the operative facts of the controversy, then an action will be deemed to
have arisen from those contacts.” CompuServe, Inc. v. Patterson (C.A.6, 1996),



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89 F.3d 1257, 1267. This “does not require that the cause of action formally
‘arise from’ defendant's contacts with the forum; rather, this criterion requires
only ‘that the cause of action, of whatever type, have a substantial connection
with the defendant's in-state activities.’ ” (Emphasis added in Third Natl.) Third
Natl. Bank, 882 F.2d at 1091, quoting S. Machine Co., 401 F.2d at 384, fn. 27.
Further, a “lenient standard * * * applies when evaluating the ‘arising from’
criterion.” Bird, 289 F.3d at 875. Under this standard, KRE has made a prima
facie showing that the cause of action arose from Roberts’s contacts with Ohio.
Not only does the cause of action arise from defamatory statements, those
statements themselves are predicated on the business dealings between Roberts
and KRE. The catalyst for Roberts’s actions was his Ohio contacts. In fact, but
for his contacts with Ohio, Roberts’s allegedly defamatory statements would not
have been posted.
       {¶ 71} Under the third and final prong of the S. Machine test, the acts of
the nonresident defendant or consequences caused by the defendant must have a
substantial connection with the forum state to make exercise of jurisdiction over
the defendant reasonable. When “the first two elements of a prima facie case [are
satisfied] then an inference arises that this third factor is also present.”
CompuServe, Inc., 89 F.3d at 1268, citing Am. Greetings Corp. v. Cohn (C.A.6,
1988), 839 F.2d 1164, 1170. “ ‘[O]nly the unusual case will not meet this third
criterion.’ ”   Am. Greetings, 839 F.2d at 1170, quoting First Natl. Bank of
Louisville v. J.W. Brewer Tire Co. (C.A.6, 1982), 680 F.2d 1123, 1126.
       {¶ 72} A number of factors are relevant to the reasonableness inquiry. A
court first must consider Ohio’s interest in the controversy. In-Flight Devices
Corp. v. Van Dusen Air, Inc. (C.A.6, 1972), 466 F.2d 220, 232. “[I]t is beyond
dispute that [a forum state] has a significant interest in redressing injuries that
actually occur within the State.” Keeton, 465 U.S at 776, 104 S.Ct. 1473, 79
L.Ed.2d 790. “Ohio has a legitimate interest in protecting the business interests of




                                        18
                                January Term, 2010




its citizens * * *.” Bird, 289 F.3d at 875. “The United States Supreme Court has
indicated that a high degree of unfairness is required to erect a constitutional
barrier against jurisdiction. * * * This is especially true in a case (such as the one
herein) in which the defendant has intentionally directed his activity at forum
residents * * *, and the ‘effects’ of the activity occur in the forum state. Calder v.
Jones, [465 U.S.] at 788-789 [104 S.Ct. at 1486-87, 79 L.Ed.2d 804].” Fallang,
40 Ohio St.3d at 108, 532 N.E.2d 117. KRE and Ohio clearly have an interest in
KRE’s obtaining the relief sought, and Ohio is the appropriate forum.
       {¶ 73} We conclude that the exercise of jurisdiction over Roberts in this
case is reasonable, satisfying the third part of the S. Machine test.
                                     Conclusion
       {¶ 74} Viewing the evidence in a light most favorable to KRE, we
conclude that Ohio’s long-arm statute and the applicable rule of civil procedure
confer jurisdiction over Roberts and that an exercise of jurisdiction of the trial
court would not deprive this nonresident defendant of the right to due process of
law under the Fourteenth Amendment to the United States Constitution. KRE has
made a sufficient showing that Roberts caused tortious injury in this state by acts
committed outside of Ohio with the purpose of injuring KRE.                       His
communications specifically targeted a known Ohio resident, and the cause of
action arises from the substantial connection Roberts made with Ohio through his
course of dealing with KRE. We decline to allow a nonresident defendant to take
advantage    of   the   conveniences     that   modern    technology    affords   and
simultaneously be shielded from the consequences of his intentionally tortious
conduct. Therefore, we affirm the judgment of the court of appeals.
                                                                  Judgment affirmed.
       LUNDBERG STRATTON, O’CONNOR, and CUPP, JJ., concur.
       O’DONNELL and LANZINGER, JJ., dissent.
       BROWN, C.J., not participating.



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                            SUPREME COURT OF OHIO




                              __________________
       O’DONNELL, J., dissenting.
       {¶ 75} Respectfully, I dissent.    Today, the majority has extended the
personal jurisdiction of Ohio courts to cover any individual in any state who
purchases a product from an Ohio company and posts a criticism of it on the
Internet with the intent to damage the seller. This holding changes long-arm
jurisdiction dramatically. In my view, because minimum contacts with Ohio are
not present in all such circumstances, the majority’s holding does not withstand
due process scrutiny.
       {¶ 76} “[T]he constitutional touchstone [of long-arm jurisdiction] remains
whether the defendant purposefully established ‘minimum contacts’ in the forum
State.” Burger King Corp. v. Rudzewicz (1985), 471 U.S. 462, 474, 105 S.Ct.
2174, 85 L.Ed.2d 528. While the majority focuses on the fact that Roberts could
foresee and even intended to cause injury to Kauffman Racing Equipment, L.L.C.
(“KRE”), an Ohio company, the United States Supreme Court “has consistently
held that this kind of foreseeability is not a ‘sufficient benchmark’ for exercising
personal jurisdiction.” Id., quoting World-Wide Volkswagen Corp. v. Woodson
(1980), 444 U.S. 286, 295, 100 S.Ct. 559, 62 L.Ed.2d 490. Rather, personal
jurisdiction is proper if the defendant’s conduct and connections with the forum
state “proximately result from actions by the defendant himself that create a
‘substantial connection’ with the forum State.”      (Emphasis sic.)    Id. at 475,
quoting McGee v. Internatl. Life Ins. Co. (1957), 355 U.S. 220, 223, 78 S. Ct.
199, 2 L.Ed.2d 223. The defendant’s actions must have created that connection to
such a degree that he “ ‘should reasonably anticipate being haled into court there.’
” Id., quoting World-Wide Volkswagen at 297. When the defendant does not
have an ongoing relationship with the forum state, a defendant must deliberately
engage in significant activities within that state and “ ‘purposefully direct[]’ his
activities at residents of the forum” to satisfy this standard. Id. at 472, quoting




                                         20
                               January Term, 2010




Keeton v. Hustler Magazine, Inc. (1984), 465 U.S. 770, 774, 104 S.Ct. 1473, 79
L.E.2d 790; see also Anilas, Inc. v. Kern (1987), 31 Ohio St.3d 163, 164, 31 OBR
366, 509 N.E.2d 1267 (“the focus of analysis ought to be whether one purposely
established contacts with the forum state,” [emphasis sic]).
       {¶ 77} Relying primarily on Calder v. Jones (1984), 465 U.S. 783, 104
S.Ct. 1482, 79 L.Ed.2d 804, the majority concludes that Roberts exercised
minimum contacts with Ohio sufficient to satisfy due process because he posted
defamatory comments relating to a consumer transaction with KRE on three
websites, intending them to have effects felt in Ohio, and the evidence indicates
that five identified Ohio residents read them.        However, Calder does not
conclusively confer jurisdiction in the forum state simply because the defendant’s
intended effects of the communication are felt in that state. Rather, the court in
Calder considered the location of the injury and the pervasive nature of the
contact when assessing whether the defendants had the minimum contacts with
the forum state.   The court stressed that the newspaper in which the article
appeared, the National Enquirer, had its largest circulation, almost twice that in
any other state, in California, where the plaintiff resided. It was that detail
coupled with the fact that the person about whom the article was written lived and
would suffer injury in California that rendered California the focal point of the
publication.   Based upon those facts, the court identified minimum contacts
sufficient to demonstrate that the defendants could “reasonably anticipate being
haled into court there.” Id. at 790, quoting World-Wide Volkswagen, 444 U.S. at
297, 100 S.Ct. 559, 62 L.Ed.2d 490.
       {¶ 78} But the facts of this case are easily distinguishable from those in
Calder. Here, Roberts posted his comments on three general auto-racing websites
and an auction site, none of which have any specific connection to Ohio or are
more likely to be viewed by a resident of Ohio than by a resident of any other
state. In fact, KRE could identify only five Ohio residents it believes actually



                                        21
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viewed Roberts’s comments. In Calder, on the other hand, the National Enquirer
sold approximately 600,000 copies of the offending article in the forum state.
Calder, 465 U.S. at 785, 104 S.Ct. 1482, 79 L.Ed.2d 804. The reach of Roberts’s
comments to Ohio residents is not at all comparable to the reach of the National
Enquirer’s circulation to California residents.
         {¶ 79} By merely posting to general websites, Roberts neither deliberately
engaged in significant activities within Ohio nor purposefully directed his
activities at an Ohio resident sufficient to establish minimum contacts and satisfy
due process — regardless of his intent.1 See, e.g., Oasis Corp. v. Judd (S.D.Ohio
2001), 132 F. Supp.2d 612, 623 (declining to find jurisdiction because “[t]he
computers hosting Defendants’ [web]site are not located in Ohio, there has been
no meaningful interactivity between the site and a significant number of Ohioans,
and the site is not directed toward an Ohio audience * * *”); see also Young v.
New Haven Advocate (C.A.4, 2002), 315 F.3d 256, 263 (“the fact that the
newspapers’ websites could be accessed anywhere, including Virginia, does not
by itself demonstrate that the newspapers were intentionally directing their
website content to a Virginia audience”). While it is evident from Roberts’s
Internet posts that he sought to discourage others from purchasing KRE’s
products, any individual who posts a negative review of a product or service in a
public forum arguably seeks the same objective. Subjecting all individuals to suit
in Ohio who post Internet reviews — no matter how scathing — of purchases


1. The majority does not find sufficient contacts to confer jurisdiction based solely on the parties’
underlying transaction, nor should it. See Clark v. Connor (1998), 82 Ohio St.3d 309, 314, 695
N.E.2d 751, 756, quoting Burger King, 471 U.S. at 479, 105 S. Ct. 2174, 85 L.E.2d 528 (finding
that an in-state plaintiff's contract with an out-of-state defendant, standing alone, does not establish
sufficient minimum contacts and that “ ‘prior negotiations and contemplated future consequences,
along with the terms of the contract and the parties’ actual course of dealing’ ” must be
considered). Here, while the transaction involved the purchase and return of a product, there is no
evidence that the parties expressly or implicitly contemplated future consequences or a longer
relationship.




                                                  22
                                January Term, 2010




made from Ohio companies does not comport with the due process notions of
“fair play and substantial justice.” Internatl. Shoe Co. v. Washington, Office of
Unemp. & Placement (1945), 326 U.S. 310, 320, 66 S.Ct. 154, 90 L.Ed. 95.
       {¶ 80} The foreseeability of causing injury to an Ohio company, whether
the injury is intended or not, without directing activity at forum residents, is not
sufficient to establish minimum contacts. See Burger King,471 U.S. at 474, 105
S.Ct. 2174, 85 L.Ed.2d 528; see also New Haven Advocate, 315 F.3d at 263
(narrowly construing Calder and holding that “[t]he newspapers must, through the
Internet postings, manifest an intent to target and focus on Virginia readers”).
Notwithstanding this traditional jurisdictional principle, the majority has provided
an avenue for any affected Ohioan to sue the originator of any negative Internet
post in an Ohio court when the product has been purchased in Ohio and the
negative post is read by an Ohio resident. But this standard falls far short of due
process.
       {¶ 81} Since this case is limited to the jurisdictional aspects of the
litigation, the parties have not briefed, nor has the court addressed, the First
Amendment rights of those who post comments on the Internet. The Supreme
Court of the United States in Calder “reject[ed] the suggestion that First
Amendment concerns enter into the jurisdictional analysis [and] declined * * * to
grant special procedural protections to defendants in libel and defamation actions
in addition to the constitutional protections embodied in the substantive laws.”
Calder, 465 U.S. at 790-791, 104 S.Ct. 1482, 79 L.Ed.2d 804. Nonetheless, the
practical impact of the majority’s holding in this case is to unnecessarily chill the
exercise of free speech.
       {¶ 82} Because Roberts’s conduct does not establish minimum contacts
with Ohio sufficient to comport with due process, I would reverse the judgment of
the court of appeals.
       LANZINGER, J., concurs in the foregoing opinion.



                                         23
                            SUPREME COURT OF OHIO




                              __________________
       Brett Jaffe and Dennis C. Belli, for appellee.
       Kepko & Phillips Co., L.P.A., William J. Kepko, and Sherry M. Phillips,
for appellant.
                            _____________________




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