RESPONDENT: Hustler Magazine, Inc.
LOCATION: Men’s Central Jail
DOCKET NO.: 82-485
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the First Circuit
CITATION: 465 US 770 (1984)
ARGUED: Nov 08, 1983
DECIDED: Mar 20, 1984
Norman Roy Grutman - Argued the cause for the petitioner
Stephen M. Shapiro - By invitation of the Court, argued the cause as amicus curiae in support of the judgment below
Facts of the case
Kathy Keeton (Keeton) sued Hustler Magazine, Inc. (Hustler) and several other defendants for libel in the United States District Court for the District of New Hampshire. Keeton alleged that the district court had jurisdiction based on diversity of citizenship since she was a resident of New York and Hustler was an Ohio corporation with its principal place of business in California. Hustler sold 10 to 15 thousand copies of its magazine in New Hampshire each month but Keeton's only connection to New Hampshire was the circulation there of copies of a magazine that she assisted in producing. She chose to sue in New Hampshire because it was the only state in which the statute of limitation for libel six years, the longest in the United States had not run. The district court dismissed the suit on the ground that the due process clause of the Fourteenth Amendment forbade the application of New Hampshire's long-arm statute in order to acquire personal jurisdiction over Hustler. The First Circuit affirmed, finding that Keeton's contacts with New Hampshire were too attenuated for an assertion of personal jurisdiction over Hustler. The Court of Appeals also found the application of the "single publication rule," which would require the court to award Keeton damages caused in all states should she prevail, unfair since most of Keeton's alleged injuries occurred outside of New Hampshire.
Was Hustler's circulation of magazines within the forum state of New Hampshire alone sufficient, without regard to the depth of plaintiff's contacts or the amount of plaintiff's damages caused in New Hampshire, to support an assertion of personal jurisdiction in a libel action based upon the contents of the magazine?
Media for Keeton v. Hustler Magazine, Inc.
Audio Transcription for Oral Argument - November 08, 1983 in Keeton v. Hustler Magazine, Inc.
Warren E. Burger:
We will hear arguments first in Kathy Keeton against Hustler Magazine.
Mr. Grutman, you may proceed whenever you are ready.
Norman Roy Grutman:
Mr. Chief Justice, and may it please the Court:
This case presents the question of whether or not the sovereign State of New Hampshire's long-arm statute is to be denied enforcement under the due process clause despite the conduct of Hustler in circulating its magazines in New Hampshire out of which a cause of action for libel arose.
The libel in question was part of a series of unprovoked calumnies and vilifications heaped upon the Plaintiff accusing her of among other things licentious promiscuity and having a venereal disease which in any jurisdiction would be tantamount to libel per se.
The law suit was initially instituted in the state court of Ohio in 1977 where there appeared to be no question about obtaining personal jurisdiction over both Mr. Flynt personally and his magazine.
At the outset of the litigation Ohio specifically applied its own statute of limitations to dismiss the libel claim while upholding the viability of Plaintiff's claim for invasion of privacy.
Relying upon that determination for several years thereafter Plaintiff continued to vigorously prosecute her case in Ohio until on the night before trial was to commence the Ohio trial court reversed itself and applied the New York statute of limitations reparable to the cause of action for invasion of privacy and dismissed the Plaintiff's case entirely out of court.
After the Plaintiff's appeal was affirmed by the Ohio Appellate Court Plaintiff promptly brought a diversity law suit in New Hampshire serving the Defendants under the New Hampshire long-arm statute which the New Hampshire Supreme Court has interpreted as being intended to be extended as far as the Constitution will permit under the due process clause.
The District Court found that while the New Hampshire long-arm statute was satisfied due process forbad entertaining the action and it dismissed it giving two reasons: Plaintiff's lack of connections or contacts with the State of New Hampshire and the alleged lack of New Hampshire's interest in the litigation.
The First Circuit affirmed without disturbing the District Court's evaluation of the Defendant's presence in New Hampshire as regular, systematic and continuous because of the monthly circulation of Hustler seeking to exploit the New Hampshire market place which took place on a continuing basis since 1975.
The reason or the reasoning of the First Circuit in affirming is epitomized in the catchy phrase at the conclusion of its opinion in which it said the New Hampshire tail is too small to wag so large an out of state dog.
The phrase captures what we submit to this Court is the essential misconception of the lower courts in assuming that jurisdiction turns on a little more or a little less of Plaintiff's contacts and damage in the forum overlooking that for 38 years since this Court's opinion in International Shoe the jurisdictional inquiry has always focused on the contacts of the defendant, not the plaintiff.
We submit to the Court that insofar as the assertion that jurisdiction is to be determined there are essentially three levels by which or three tiers by which a determination can be made.
If a defendant by its continuous, systematic process can be said to be doing business then it is dogmatic that general jurisdiction exists in that forum for litigation against that defendant for all kinds of causes of action.
We do not argue in this case that we fall within that rubric.
We submit that synthesizing all of the cases in which this Court has spoken from International Shoe through Mr. Justice White's opinion in World-Wide Volkswagen.
Byron R. White:
That was the Court's opinion.
Norman Roy Grutman:
The Court's opinion written by Mr. Justice White.
The synthesis of those cases holds that where you have purposeful conduct by a defendant directed at the forum in question and out of which conduct the cause of action arises or is generated that satisfies the formula of those minimum contacts which substantial justice and reasonable fair play make it suitable that a defendant should be hailed into that court and be amenable to suit in that jurisdiction.
Harry A. Blackmun:
I am a little surprised, Mr. Grutman.
You do not make much of the Boxite case which came after International Shoe.
You cited in your reply brief but not in--
Norman Roy Grutman:
Yes, we do, Your Honor.
The Boxite case as I interpret it has to do with the failure of the defendant who by its waiver to its failure to comply with orders of the court to demonstrate its nonamenability to suit was found by the Court in that case to have subjected itself to a determination that facts could be found against it so that jurisdiction could be properly assessed against that defendant.
Harry A. Blackmun:
--But it certainly bears on World-Wide Volkswagen.
Norman Roy Grutman:
I think it does, but I think that Volkswagen in its facts and in the more expansive treatment in the Court's opinion is a case which I think provides the springboard from which the Court can find in this lawsuit that what you have present in this case and what was lacking in Volkswagen.
In Volkswagen you had purely adventitious or fortuitous circumstances by which jurisdiction was asserted against a little automobile dealer in Mesena, New York whose only business was in Mesena, New York and who had no connection with the State of Oklahoma.
Similarly the tri-state regional dealer albeit under the name World-Wide Volkswagen it unlike Hustler in this case in no way for its economic advantage did business in Oklahoma or sold its products in Oklahoma.