2014 VT 100


Fox v. Fox (2013-147)
 
2014 VT 100
 
[Filed 14-Aug-2014]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2014 VT 100

 

No. 2013-147

 

Neal Fox


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Windsor Unit,


 


Family Division


 


 


Eugene Fox


November Term, 2013


 


 


 


 


M. Patricia
  Zimmerman, J. (motion to reconsider); Robert P. Gerety,
  Jr., J. (final judgment)


 

Tavian M. Mayer of Mayer & Mayer, South Royalton, and
Katherine Z. Pope (On the Brief) of
  Law Office of Katherine Pope, Tunbridge,
for Plaintiff-Appellee
 
Cabot Teachout
of DesMeules, Olmstead & Ostler,
Norwich, for Defendant-Appellant.
 
Michele Olvera, Supervising Attorney, and Ariana Barusch, Law Clerk (On the Brief),
  Montpelier, for Amicus Curiae Vermont Network Against Domestic and Sexual Violence.
 
 
PRESENT:  Reiber, C.J.,
Dooley, Skoglund, Robinson and Crawford, JJ.
 
 
¶ 1.           ROBINSON,
J.   This case requires us to evaluate the constitutional
requirements for personal jurisdiction over a nonresident defendant in the
context of a relief-from-abuse (RFA) order.  Nonresident defendant appeals
the family court order granting plaintiff’s request for a final RFA
order.  Defendant argues: (1) the family court lacked personal
jurisdiction over him to issue the final order, (2) defendant and plaintiff are
not family members for purposes of the domestic abuse prevention statute, (3) plaintiff failed to establish that a final RFA order was
necessary, and (4) the court erred in finding that defendant engaged in
stalking, as defined in Vermont’s stalking statute.  We conclude that the
trial court lacked personal jurisdiction to enter a final RFA order, and
reverse. 
¶ 2.           Plaintiff
Neal Fox’s brother adopted defendant Eugene Fox when defendant was an
infant.  On April 6, 2012, defendant, a New Hampshire resident now in his
sixties, and plaintiff, a Vermont resident, attended a probate court hearing in
Manchester, New Hampshire.  Following the hearing, defendant followed
plaintiff to his car and proceeded to punch, kick, and step on plaintiff. 
Plaintiff was hospitalized as a result of the encounter.
¶ 3.           Plaintiff
filed a complaint for relief from abuse with the family division of the Windsor
Superior Court.  The trial court granted a temporary RFA order, which was
extended multiple times.  Before the hearing on the final RFA order,
defendant filed a motion to dismiss for lack of jurisdiction, arguing that the
Vermont court lacked personal jurisdiction over him to hear the RFA case. 
He further argued that even if the court had jurisdiction, the uncle-nephew
relationship did not constitute “family” for purposes of the domestic abuse
prevention statute.  The court denied defendant’s motion, interpreting 15
V.S.A. § 1102 to establish jurisdiction in RFA cases even in the absence of
minimum contacts between defendant and the forum state.  The court also
concluded that, while “family” is not defined by the relevant statute, except
to include reciprocal beneficiaries not at issue in this case, the blood
relation between plaintiff and defendant’s adoptive father is a sufficient
family relationship to trigger the protections of the statute.
¶ 4.           During
the final RFA hearing on March 25, 2013, defendant stipulated on the record at
the final RFA hearing that abuse had occurred.  Plaintiff testified that,
at some point during the incident in New Hampshire, defendant made note of
plaintiff’s Vermont license plate and stated that he was recording the license
plate in case he needed it again.  Defendant admitted that he made note of
plaintiff’s license plate, but he could not recall what he said to
plaintiff.  Defendant also stated that he understood that plaintiff had
changed his license plate since the incident.  Outside of court
appearances, plaintiff has had no contact with defendant since the incident.
¶ 5.           At
the close of the RFA hearing, defendant renewed his motion to dismiss for lack
of personal jurisdiction.  The court denied the motion to dismiss on the
ground that personal jurisdiction for the final RFA order was not materially
different from the question of jurisdiction at the temporary order stage. 
The court then granted plaintiff’s request for a final RFA order that
prohibited defendant from coming within 300 feet of plaintiff or his home,
vehicle or place of employment, except in connection with a court
appearance.  In that order, the court made a finding that defendant had
stalked plaintiff as defined in 12 V.S.A. § 5131(6).  The court
denied defendant’s motion to reconsider his motion to dismiss, and defendant
appealed.
¶ 6.           In
the meantime, defendant, a New Hampshire resident, was charged criminally in
New Hampshire and pled guilty to simple assault.  In February 2013, the
New Hampshire court sentenced defendant to twelve months of incarceration, with
the entire sentence suspended contingent on good behavior and compliance with
certain conditions.  The conditions on defendant’s suspended sentence
included a no-contact provision stating that defendant “shall have no contact
with [plaintiff] or members of his immediate family, including wife and
children.  No contact means direct, indirect, through third parties or
through social media.”
¶ 7.           The
threshold questions are whether the trial court must have personal jurisdiction
over a nonresident defendant in order to issue a final RFA order and, if so,
whether it had jurisdiction in this case.  Defendant argues that the trial
court had no jurisdiction to issue an RFA order against him because he has no
contacts with Vermont whatsoever, and his connections therefore do not satisfy
the minimum contacts requirement of the U.S. Constitution, Vermont’s long-arm
statute, or Vermont Rule of Civil Procedure 4(e).
¶ 8.           Plaintiff
and amicus curiae Vermont Network Against Domestic and
Sexual Violence both cite decisions from other jurisdictions holding that a
court is not required to have personal jurisdiction over a defendant in order
to issue an abuse-prevention order against him or her.  They also argue
that, to the extent personal jurisdiction is required,
it is present in this case for a host of reasons.  Specifically, plaintiff
argues that Vermont’s abuse prevention statute itself confers the necessary
jurisdiction.  That statute provides: 
  Proceedings under this chapter may
be commenced in the county in which the plaintiff resides.  If the
plaintiff has left the residence or household to avoid abuse, the plaintiff
shall have the option to bring an action in the county of the previous
residence or household or the county of the new residence or household.
 
15 V.S.A.
§ 1102(c).  In addition, plaintiff and amicus curiae argue
that given the facts of this case, including defendant’s express notation of
plaintiff’s license plate number at the time he assaulted plaintiff, the
court’s exercise of jurisdiction was consistent with the requirements of
fairness at the core of constitutional doctrine concerning personal
jurisdiction.  Int’l Shoe Co. v. Washington, 326
U.S. 310, 316 (1945).
¶ 9.           Our
review of the trial court’s legal analysis concerning personal jurisdiction is nondeferential and plenary.  Godino v. Cleanthes,
163 Vt. 237, 239, 656 A.2d 991, 993 (1995).  It is well settled
that Vermont courts must have both statutory and constitutional power to
exercise personal jurisdiction over a nonresident defendant.  Vermont’s
long-arm statute, 12 V.S.A. § 913(b), permits state courts to exercise
jurisdiction over nonresident defendants “to the full extent permitted by the
Due Process Clause” of the U.S. Constitution.  N. Aircraft, Inc. v.
Reed, 154 Vt. 36, 40, 572 A.2d 1382, 1385 (1990).  Accordingly,
although the long-arm statute and the U.S. Constitution provide separate and
distinct limitations on the authority of Vermont courts to enter judgments, the
statutory and constitutional analyses in this case are one and the same.

 
I.
¶ 10.       Courts from other
jurisdictions have taken a range of approaches to challenges to personal
jurisdiction in the context of requests for abuse-prevention orders filed
against out-of-state defendants.  Many of these cases involve a
complainant who, having fled to the forum state, seeks protection in the forum
state’s courts in response to abuse that occurred in another state, although
some involve plaintiffs who, like plaintiff in this case, are domiciliaries of the forum state.
¶ 11.       Some courts have
held that personal jurisdiction is a necessary prerequisite to issuing an
abuse-prevention order against a nonresident, and have concluded that they did
not have personal jurisdiction over the defendants.  For example, a
Florida appeals court vacated a final injunction against domestic violence
issued against an estranged husband in Maryland after the wife fled from
Maryland to Florida following husband’s violent acts and threats.  Becker v. Johnson, 937 So.2d 1128, 1132 (Fla. Dist. Ct. App.
2006).  Explaining that “the constitutional touchstone remains
whether the defendant purposefully established ‘minimum contacts’ in the
forum State,” the court concluded that the husband’s calls and text messages to
the wife’s cell phone, when her phone number was a Maryland number and he had
no knowledge that she was in Florida at the time, were insufficient to confer
jurisdiction on Florida’s courts.  Id. at 1131
(quotations omitted).  The court noted that its decision did not
leave the wife without an enforceable remedy in Florida; if she got an order in
Maryland that was compliant with the federal Violence Against Women Act, 18
U.S.C. § 2265 (2005), that order would be enforceable in Florida.  Id.
at 1131-32; see also T.L. v. W.L., 820 A.2d 506, 515-16 (Del. Fam. Ct.
2003) (holding that nonresident husband lacked minimum contacts to make it
reasonable for him to appear and defend against request for protective order in Delaware, and noting that
wife could have sought a remedy in her state of prior residence).
¶ 12.       In 2001, in a
closely divided and pivotal decision, the Iowa Supreme Court held that a court
does not need personal jurisdiction over a nonresident defendant in order to
issue a protective order on behalf of a domiciliary.  Bartsch v. Bartsch, 636 N.W.2d 3, 6 (Iowa 2001).  In
that case, a wife who was an Iowa resident, having moved to Iowa from Utah,
sought a protective order against her husband, who by that time was living in
Colorado.  The court explained that the U.S. Supreme Court has recognized
that not all exercises of a state’s subject matter jurisdiction require
personal jurisdiction over a defendant, and that judgments which merely
determine the civil status of an inhabitant, such as a divorce judgment
when one of the parties is a domiciliary of the issuing state, may be issued
without personal jurisdiction.  Id. (discussing Pennoyer
v. Neff, 95 U.S. 714 (1877)); see also Williams v. North Carolina, 317 U.S.
287, 298-99 (1942) (“Thus it is plain that each state by virtue of
its command over its domiciliaries and its large
interest in the institution of marriage can alter within its own borders the
marriage status of the spouse domiciled there, even though the other spouse is
absent.”).  Recognizing that courts have applied this “status” exception
to the due process requirement of personal jurisdiction to custody and
parentage determinations, the Iowa court approvingly quoted a Texas court’s
conclusion that “a family relationship is among those matters in which the
forum state has such a strong interest that its courts may reasonably make an
adjudication affecting that relationship even though one of the parties to the
relationship may have had no personal contacts with the forum state.”  Bartsch, 636 N.W.2d at 8-9 (quoting In re S.A.V.,
837 S.W.2d 80, 84 (Tex. 1992)).  Noting that the protective order at issue
did not purport to impose a personal judgment against the defendant, the court
concluded:
If
a court may constitutionally make orders affecting marriage, custody, and
parental rights without personal jurisdiction of a defendant, it certainly
should be able to do what the court did here—enter an order protecting a
resident Iowa family from abuse.
 
Id. at 10.
 
¶ 13.       Several years
later, the New Jersey Supreme Court rejected the Iowa court’s rationale, but
likewise concluded that, subject to certain limitations, a New Jersey court
could issue a temporary abuse-prevention order, even in the absence of personal
jurisdiction over the nonresident defendant.  Shah v.
Shah, 875 A.2d 931, 940 n.5, 942 (N.J. 2005).  The New Jersey
court drew a distinction “between prohibitory orders that serve to protect the
domestic violence victim, and affirmative orders that require that a defendant
undertake an action.”  Id. at 939. 
In that case, a wife in Illinois fled to New Jersey—a state with which the
husband had no ties or contacts—and requested a temporary,
and later a final restraining order against the husband.  The New Jersey
Supreme Court upheld those aspects of the lower court’s temporary order that
were “prohibitory” in nature, explaining that a prohibitory order “provides the
victim the very protection the law specifically allows, . . . prohibits
the defendant from engaging in behavior already specifically
outlawed . . . [and] does not implicate any of defendant’s
substantive rights.”  Id.  However, the court concluded that
“New Jersey courts lack the power to enter an order requiring the performance
of any affirmative act by a defendant over whom [personal] jurisdiction cannot
be asserted.”  Id. at 940. 
Accordingly, the court vacated those aspects of the temporary order requiring
the husband to pay the wife money and return her possessions, as well as to turn
over any firearms, but upheld the temporary order insofar as it barred
defendant from contacting the wife.  Id. at
940-41.  
¶ 14.       The court also
concluded that although the temporary order was constitutional to the extent
that it included only prohibitory relief, New Jersey courts could not
issue a final restraining order.  Id. at 940. 
The court explained that a final restraining order would, under New Jersey law,
include some affirmative requirements such as relinquishment of firearms and a
surcharge, and could well have “severe collateral consequences” such as entry
in a central registry.  Id.  
¶ 15.       The following
year, a Kentucky appeals court followed New Jersey’s lead in the case of Spencer
v. Spencer, 191 S.W.3d 14 (Ky. Ct. App. 2006).  In that case, a wife
fled her home in Oklahama to Kentucky, where she got
a restraining order against her husband.  The court concluded that “the distinction made by New Jersey’s highest court between
prohibitory and affirmative orders represents the fairest balance between
protecting the due process rights of the nonresident defendant and the state’s
clearly-articulated interest in protecting the plaintiff and her child against
domestic violence.”  Id. at 19. 
Accordingly, the court upheld the restraining order’s requirement that the
husband not approach his wife, but struck down the provisions restricting the
husband’s disposition of the parties’ property and possession of firearms, as
well as the provision ordering him to attend domestic violence counseling. 
Id.  The Spencer court did not address the New Jersey
court’s conclusion that its rationale supported entry of a temporary, but not a
final abuse-prevention order.
¶ 16.       Two New England states have merged these two lines of
authority in articulating their own rationales for excluding abuse-prevention
orders from the personal jurisdiction requirements of the Due Process
Clause.  In Caplan v. Donovan, 879
N.E.2d 117 (Mass. 2008), the Massachusetts Supreme Judicial Court considered a
case in which a woman fled her longtime partner in Florida and got an
abuse-prevention order in Massachusetts.  Citing Bartsch,
the Massachusetts Supreme Court described the abuse-prevention order as a
declaration of the wife’s protected status, and likened the ruling to a
determination of marital status, or of custodial rights to a child—both
judgments that can be issued in the absence of personal jurisdiction.  Id. at 123.  However, citing Shah, the
court concluded that any order issued in the absence of personal jurisdiction
cannot “impose any personal obligations on a defendant, and is limited to
prohibiting actions of the defendant.”  Id. at
124.  The court explained that this “limitation prevents a court
from issuing any affirmative order in which it attempts to ‘exercise its
coercive power to compel action by a defendant.’ ” 
Id. at 124 (quoting Spencer, 191 S.W.3d at 18).  Like
the Spencer court, the Caplan court
upheld the no-contact aspect of the abuse-prevention order, struck down the
requirement that defendant relinquish his firearms as beyond the Massachusetts
court’s jurisdiction, and did not address the New Jersey court’s conclusion
that the court lacked authority to enter a final order, given the direct and
collateral consequences of a final order.  Id. at
125.  Two years later, the New Hampshire Supreme Court followed
suit in Hemenway v. Hemenway, 992 A.2d 575, 580-82 (N.H. 2010).  
¶ 17.       Although the “status” rationale and the
“it’s-a-mere-prohibitory-order” rationale are analytically distinct, they are
connected.  Even if we found the “status” analogy persuasive—a question we
do not reach—a court’s authority in the absence of personal jurisdiction over
the defendant would be limited to a declaration of status; it does not extend to
affirmative relief.  See Caplan, 879
N.E.2d at 123-24; see also Kulko v.
Superior Court, 436 U.S. 84, 91 (1978) (“It has long been the rule that a
valid judgment imposing a personal obligation or duty in favor of the plaintiff
may be entered only by a court having jurisdiction over the person of the
defendant.”); Restatement (Second) of Judgments § 7 cmt.
a (1982) (“Jurisdiction to establish or terminate a status
should be distinguished from . . . jurisdiction to enforce
liability arising from a status, for example, liability for child support.”).
¶ 18.       This is why the “prohibitory order” rationale becomes more
critical.  The argument is that an order that merely directs a defendant
to stay away from and not contact a plaintiff does not actually impose a personal
obligation or duty in favor of the plaintiff, and does not amount to
enforcement of a liability arising from a status.  As the New Jersey
Supreme Court observed, such an order “prohibits the defendant from
engaging in behavior already specifically outlawed . . . [and]
does not implicate any of defendant’s substantive rights.”  Shah, 875 A.2d. at 939.  
¶ 19.       We need not
determine whether, as the New Jersey Supreme Court concluded, a court may issue
a temporary abuse prevention order without personal jurisdiction on the theory
that such an order is merely prohibitory; we agree with the New Jersey court
that a court cannot issue a final abuse prevention order without
personal jurisdiction over a defendant.  A final abuse prevention order
has significant impact on a defendant’s substantive rights.  An order
prohibiting defendant from contacting plaintiff, and in this case approaching
within 300 feet of plaintiff, plaintiff’s home, car, or place of employment,
does more than prohibit defendant from engaging in behavior already
specifically outlawed.  It prohibits him from engaging in behavior that
would be entirely legal but for the court’s order.  And it backs up the
restrictions with the prospect of criminal prosecution within Vermont or
beyond.  See 13 V.S.A. § 1030(a) (providing that person who commits
act in violation of order issued under chapter 21 of Title 15 shall be
imprisoned for not more than one year, fined not more than $5,000, or both); 18
U.S.C. § 2262(b) (listing federal penalties for persons who travel in
interstate commerce with intent to violate protection order); 8 U.S.C.
§ 1227(a)(2)(E)(ii) (making violation of order involving “protection
against credible threats of violence, repeated harassment, or bodily injury” a
deportable offense); see also State v. Goyette,
166 Vt. 299, 302, 691 A.2d 1064, 1066 (1997) (“[A] relief-from-abuse order may
prohibit otherwise legitimate conduct to prevent future abuse, and that conduct
may serve as the basis of a criminal conviction for violating the order.”).
¶ 20.       In so restricting
defendant’s conduct, the order restrains his liberty.  That is the whole
point; in light of past abuse, and reasonable fear of future abuse, plaintiff
seeks final, as opposed to provisional, protection in the form of restraints on
defendant’s conduct above and beyond the baseline requirements of the
law.  Such restraints may be warranted and appropriate, but the suggestion
that they are not restraints, or do not affect defendant’s substantive rights,
is at odds with the terms of the order on its face.  The restraint on a
defendant accompanying any purported declaration of plaintiff’s status as “a
protected person” is an “enforcement of a liability” arising from such a
status—exactly what a court lacking personal jurisdiction cannot order.  Restatement (Second) of Judgments
§ 7 cmt.
a (1982).
¶ 21.       As Justice Carter
of the Iowa Supreme Court explained in his dissent from the Bartsch
decision, 
The
majority apparently believes that the unavailability of collateral relief
against foreign domiciliaries in status adjudications
only extends to money judgments.  That is not correct.  The court in Kulko described the protection much more
broadly:  “The Due Process Clause of the Fourteenth Amendment operates as
a limitation on the jurisdiction of state courts to enter judgments
affecting rights or interests of nonresident defendants.”  The “rights
or interests” of [defendant] that have been adversely affected by the district
court’s judgment are substantial.  There has been a direct invasion of his
liberty interest.  In addition, there are collateral consequences of a
lasting nature.
 
636 N.W.2d at
11-12 (citing Kulko, 436 U.S. at 91, and 18
U.S.C. § 922).
¶ 22.       In addition to
the restraint on liberty reflected in the RFA order are the substantial
collateral consequences that flow from the order.  Although Vermont law
does not automatically require a defendant in an RFA case to forfeit his or her
firearms, federal law does.  18 U.S.C. § 922(g)(8). 
This federal consequence is not merely incidental; the RFA order before us
identifies this consequence on its face.
¶ 23.       We recognize that
in the absence of an exemption from the constitutional requirement of personal
jurisdiction for a final RFA order, in cases where a victim flees to Vermont
and Vermont has no personal jurisdiction over the alleged abuser, “the
unpalatable choices remaining are either to require the victim of abuse to
return to the State in which the abuse occurred in order to obtain an effective
abuse prevention order” or to wait for the abuser to engage in conduct directed
at the victim in Vermont that gives rise to personal jurisdiction.  Caplan, 879 N.E.2d at 123. 
A victim of domestic abuse can secure an abuse-prevention order that is
enforceable in Vermont by petitioning in a state that does have personal
jurisdiction over the alleged abuser.  See 18 U.S.C. § 2265
(providing for interstate enforcement of qualifying abuse-prevention
orders).  But doing so may in some cases be logistically challenging,
psychologically difficult, or even personally dangerous.  
¶ 24.       On the other
hand, a contrary rule gives rise to unpalatable possibilities of its own. 
If we were to accept plaintiff’s argument, a Vermonter with no connection to,
for example, California could be forced to choose between traveling from
Vermont to California to defend against civil charges of domestic violence and
accepting the consequences of a judicial finding of abuse and an
abuse-prevention order in California because an alleged victim of domestic
violence chose to relocate to California.  Such a scenario challenges
“traditional notions of fair play and substantial justice” protected by the
personal jurisdiction requirement pursuant to the Due Process Clause.  Int’l
Shoe Co., 326 U.S. at 316.
¶ 25.       For the foregoing
reasons, we decline to carve out a blanket exemption from the constitutional
due process requirement of personal jurisdiction for requests for final RFA orders.
II.
¶ 26.       Having concluded
that requests for final RFA orders are not subject to a blanket exemption from
the requirement of personal jurisdiction, we now consider whether the court had
personal jurisdiction over defendant in this case.[*]  The Due Process Clause allows
personal jurisdiction over a defendant in any state where the defendant has
“certain minimum contacts . . . such
that the maintenance of the suit does not offend traditional notions of fair
play and substantial justice.”  Id. (quotation omitted). 
Minimum contacts are a surrogate for Due Process Clause protections, and ensure
that individuals will have “ ‘fair warning that a
particular activity may subject [them] to the jurisdiction of a foreign sovereign.’ ”  Burger King Corp. v. Rudzewicz,
471 U.S. 462, 472 (1985) (quoting Shaffer v. Heitner,
433 U.S. 186, 218 (1977) (Stevens, J., concurring in judgment)).  The
focus of the minimum contacts inquiry is on the relationship among the
defendant, the forum state, and the cause of action.  Shaffer, 433
U.S. at 204.  
¶ 27.       A court may
exercise either general or specific jurisdiction over a nonresident
defendant.  General jurisdiction applies to suits not arising out of or
related to the defendant’s contacts with the forum state.  Helicopteros Nacionales
de Colombia, S.A. v. Hall, 466 U.S. 408, 415 n.9 (1984). 
By contrast, a court may exercise specific jurisdiction where a defendant has
“purposefully directed . . . activities
at residents of the forum and the litigation results from alleged injuries that
arise out of or relate to those activities.”  Burger
King Corp., 471 U.S. at 473 (quotations omitted).  Nobody
suggests that Vermont has general jurisdiction to adjudicate claims against
defendant.  Plaintiff introduced no evidence that defendant owned property
in Vermont, did business in Vermont, visited Vermont, or had any contact with
the State or its residents.  The question in this case is whether Vermont
has specific jurisdiction because the litigation arises from defendant’s
personally directing his activities toward Vermont.
¶ 28.       Courts have
properly asserted jurisdiction over nonresident defendants in a variety of
cases where defendants are deemed to have “fair warning” of the possibility of
being called before a state’s courts on account of the defendant’s own
activities directed at the forum state.  Burger King Corp., 471
U.S. at 472.  A corporation that “delivers its
products into the stream of commerce with the expectation that they will be
purchased by consumers in the forum State” may be sued in that state when those
products subsequently injure consumers; “a publisher who distributes magazines
in a distant State may fairly be held accountable in that forum for damages
resulting there from an allegedly defamatory story,” and parties who “reach out
beyond one state and create continuing relationships and obligations with
citizens of another state” are subject to the other state’s jurisdiction in
connection with the consequences of their activities.  Id. at
472-473 (quotations omitted).  
¶ 29.       The unifying feature of all these cases is that the
defendant directed activity into the forum state, or toward its residents in
that state.  The U.S. Supreme Court has made it clear that “it is essential in each case that there
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.”  Id. at 475. 
The Supreme Court has expressly rejected the suggestion that foreseeability of
causing injury in another state is itself a sufficient benchmark for
exercising personal jurisdiction; instead, the Court has explained, “the
foreseeability that is critical to due process analysis . . . is
that the defendant’s conduct and connection with the forum State are such that
he should reasonably anticipate being haled into
court there.”  Id. at 474 (quotation omitted).
¶ 30.       We conclude that
defendant’s assault of plaintiff in New Hampshire does not by itself support
personal jurisdiction for a final RFA order in Vermont.  By attacking
plaintiff in New Hampshire, defendant did not avail himself of any benefits or
protections of Vermont’s laws, or subject himself to the authority of Vermont’s
courts.  The fact that plaintiff happens to be a Vermont resident is not
itself enough to give Vermont courts jurisdiction
over a New Hampshire defendant for an assault in New Hampshire.
¶ 31.       Plaintiff argues
that defendant did intrude into Vermont by taking note of plaintiff’s Vermont
license plate number in connection with the assault, and then later
acknowledging, once he was in court, that he understood that plaintiff had
changed his license plate.  Plaintiff’s theory is that these two acts by
defendant were tantamount to stalking plaintiff in Vermont.  The
trial court made no finding that defendant physically came to Vermont and
stalked plaintiff; that defendant ever contacted plaintiff while plaintiff was
in Vermont in order to stalk him, or for any purpose
at all; or that defendant contacted any other person or entity in Vermont for
the purpose of threatening or stalking plaintiff.  Nor was there evidence
to support any such findings.  On this record, we cannot conclude that
plaintiff met its burden of establishing that defendant was subject to the
court’s jurisdiction.  See Ben & Jerry’s Homemade, Inc. v. Coronet
Priscilla Ice Cream Corp., 921 F.Supp. 1206, 1209
(D. Vt. 1996) (clarifying that plaintiff bears burden of demonstrating
sufficient contacts with state to support personal jurisdiction over
defendant).
¶ 32.       In light of
defendant’s stipulation that he abused plaintiff, and the relative proximity of
New Hampshire, this may seem like a harsh result.  But the due process
requirement that a court have personal jurisdiction before entering a judgment
against a defendant applies to those defendants with meritorious defenses, as
well as those without.  And it applies to defendants in New Mexico as well
as New Hampshire.
¶ 33.       Because we
conclude that the trial court lacked the personal jurisdiction required to
issue a final RFA order, we need not reach the other issues defendant raises in
his appeal.
Reversed.

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[*]  At the outset, we reject plaintiff’s
statutory argument.  Vermont’s RFA statute cannot extend the court’s jurisdiction
beyond the bounds of federal due process.  See Kulko,
436 U.S. at 91 (“The Due Process Clause of the Fourteenth Amendment operates as
a limitation on the jurisdiction of state courts to enter judgments affecting
rights or interests of nonresident defendants.”); see also In re R.W.,
2011 VT 124, ¶ 23, 191 Vt. 108, 39 A.2d 682 (recognizing that Vermont
courts can exercise personal jurisdiction where there is both statutory and
constitutional power to do so).  Moreover, 15 V.S.A. § 1102(c) is
fundamentally about venue, not jurisdiction.  It does not purport to
expand Vermont’s jurisdiction over nonresident defendants. 
 



