James v. Hoffman

[Cite as James v. Hoffman, 2018-Ohio-2422.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

LARRY C. JAMES, et al. :
:
Plaintiffs-Appellants : Appellate Case No. 27735
:
v. : Trial Court Case No. 2017-CV-839
:
DAVID HOFFMAN, et al. : (Civil Appeal from
: Common Pleas Court)
Defendants-Appellees :
:

...........

OPINION

Rendered on the 22nd day of June, 2018.

...........

JAMES E. ARNOLD, Atty. Reg. No. 0037712 and GERHARDT A. GOSNELL, II, Atty.
Reg. No. 0064919, 115 West Main Street, 4th Floor, Columbus, Ohio 43215, Attorneys
for Plaintiffs-Appellants; and BONNY J. FORREST, pro hac vice, 555 Front Street, Suite
1403, San Diego, California 92101, Attorney for Plaintiffs-Appellants Larry C. James, L.
Morgan Banks, III, Debra L. Dunivin, and Russell Newman; and LOUIS J. FREEH, pro
hac vice, 2550 M Street NW, 2nd Floor, Washington, DC 20037, Attorney for Plaintiff-
Appellant Stephen Behnke

J. STEVEN JUSTICE, Atty. Reg. No. 0063719 and GLEN R. McMURRY, Atty. Reg. No.
0082600, 210 West Main Street, Troy, Ohio 45373, and BARBARA S. WAHL, pro hac
vice, and KAREN E. CARR, pro hac vice, 1717 K Street, NW, Washington, DC 20006,
Attorneys for Defendant-Appellee American Psychological Association

D. JEFFREY IRELAND, Atty. Reg. No. 0010443, ERIN E. RHINEHART, Atty. Reg. No.
0078298, and CHRISTOPHER C. HOLLON, Atty. Reg. No. 0086480, 110 North Main
Street, Suite 1600, Dayton, Ohio 45402, and THOMAS G. HENTOFF, pro hac vice, and
 -2-

JOHN K. VILLA, pro hac vice, 725 Twelfth Street, NW, Washington, DC 20005, Attorneys
for Defendants-Appellees Sidley Austin LLP and David Hoffman
.............

TUCKER, J.

{¶ 1} Plaintiffs-appellants, L. Morgan Banks, III; Stephen Behnke; Debra L.

Dunivin; Larry C. James; and Russell Newman, appeal from a pair of decisions issued by

the trial court on August 25, 2017, in which the court determined that it lacked personal

jurisdiction over Defendants-appellees, the American Psychological Association (“APA”),

Sidley Austin LLP (“Sidley-Austin”), and Sidley-Austin partner David Hoffman.

Appellants argue that the trial court erred because Appellees purposefully engaged in

certain activities within this state, because the causes of action set forth in the complaint

arose from Appellees’ activities here, and because the trial court’s exercise of personal

jurisdiction over Appellees would be reasonable as a matter of practicality. We find that

the trial court did not err, and therefore, we affirm the decisions.

I. Facts and Procedural History

{¶ 2} In October 2014, the publication of the book Pay Any Price: Greed, Power,

and Endless War prompted the APA to investigate allegations that it had collaborated

with elements of the federal government to promote the use of abusive methods for

conducting interrogations related to national security. Compl. ¶ 2-3; APA’s Br. 4; Sidley-

Austin’s Br. 2. The APA chose the law firm of Sidley-Austin, with Hoffman as lead

attorney, to perform the investigation, during the course of which the firm “reviewed more

than 50,000 pages of documents” and interviewed 148 witnesses. Sidley-Austin’s Br. 2.

Two of the interviews took place in Ohio, and a total of six of the witnesses were residents

of Ohio, including Appellant, Larry James. Appellants’ Br. 5; Sidley-Austin’s Br. 2.
 -3-

James spoke with investigators in his office in Dayton. Appellants’ Br. 5; Sidley-Austin’s

Br. 4.

{¶ 3} Sidley-Austin submitted its final report (the “Report”) to the APA in late June

or early July 2015. See Appellants’ Br. 2. fn.1; APA’s Br. 2; Sidley-Austin’s Br. 1 fn.2;

Mot. of Sidley-Austin and Hoffman to Dismiss under D.C. Code § 16-5502, Ex. 2A, Apr.

7, 2012 (revised version of the Report dated September 4, 2015). A copy of the Report

appeared on the website of The New York Times on July 10, 2015, and the APA posted

a copy of the Report on its own website later that day. APA’s Br. 5; see Appellants’ Br.

5.

{¶ 4} On February 16, 2017, Appellants filed their complaint against Appellees,

asserting eleven claims for defamation and one claim for false light invasion of privacy.

See Compl. ¶ 303-304, 325-326, 346-347, 367-368, 388-389, 408-409, 427-428, 446-

447, 464-465, 485-486, 515-516 and 524. Appellees responded to the complaint by

filing three motions to dismiss on April 7, 2017: the APA filed a single motion to dismiss

based alternatively on Civ.R. 12(B)(2), the doctrine of forum non conveniens, and D.C.

Code § 16-5502 (2012), whereas Sidley-Austin and Hoffman filed two motions, one

pursuant to the rule and the doctrine of forum non conveniens, and the other pursuant to

the District of Columbia Code.1

{¶ 5} Following a hearing, the trial court sustained Appellees’ motions to dismiss

in two decisions issued on August 25, 2017. The court held, albeit implicitly, that

although it theoretically could have exercised personal jurisdiction over Appellees under

1 Section 16-5502 of the code is part of the District of Columbia’s Anti-SLAPP Act of 2010;
“SLAPP” is an acronym meaning “Strategic Lawsuits Against Public Participation.”
Sherrod v. Breitbart, 720 F.3d 932, 934 (D.C.Cir.2013).
 -4-

R.C. 2307.382, such an exercise of jurisdiction would not be “consistent with the Due

Process Clause of the Fourteenth Amendment.” See Order Granting Mot. of APA to

Dismiss 1, Aug. 25, 2017; Order Granting Mot. of Sidley-Austin and David Hoffman to

Dismiss 1, Aug. 25, 2017. On September 22, 2017, Appellants timely filed their notice

of appeal.

II. Analysis

{¶ 6} Appellants argue that the trial court should have found that Appellees are

subject to specific personal jurisdiction and overruled their motions to dismiss.

Appellants’ Br. 8-10; see also Kauffman Racing Equip., L.L.C. v. Roberts, 126 Ohio St.3d

81, 2010-Ohio-2551, 930 N.E.2d 74, ¶ 46-47 (distinguishing between “general” and

“specific” personal jurisdiction). Determining “whether an Ohio trial court has personal

jurisdiction over a nonresident defendant [requires] a two-step analysis.” Kauffman

Racing at ¶ 28, citing U.S. Sprint Communications Co. Ltd. Partnership v. Mr. K’s Foods,

Inc., 68 Ohio St.3d 181, 183-184, 624 N.E.2d 1048 (1994). First, the court must

determine “whether the long-arm statute [i.e., R.C. 2307.382] and the applicable rule of

civil procedure [i.e., Civ.R. 4.3] confer jurisdiction.” Id. Second, if the long-arm statute

would confer jurisdiction, then the court must determine “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.” Id.

{¶ 7} When a challenge is raised, the “plaintiff [bears] the burden of establishing”

that the trial court has personal jurisdiction over the defendant. EnQuip Technologies

Group, Inc. v. Tycon Technoglass, S.r.l., 2d Dist. Greene Nos. 2009 CA 42 & 2009 CA

47, 2010-Ohio-28, ¶ 57, citing Ashton Park Apts., Ltd. v. Carlton-Naumann Constr., Inc.,
 -5-

6th Dist. Lucas No. L-08-1395, 2009-Ohio-6335, ¶ 12. The court, in reaching its

decision, “must ‘view [the] allegations in the pleadings and the documentary evidence in

a light most favorable’ to the plaintiff and resolv[e] all reasonable[,] competing inferences

in [the plaintiff’s] favor.” Kauffman Racing at ¶ 27, quoting Goldstein v. Christiansen, 70

Ohio St.3d 232, 236, 638 N.E.2d 541 (1994). A ruling on personal jurisdiction “is a

question of law that [an] appellate court[ ] review[s] de novo.” Id.

A. Assignment of Error No. 1

{¶ 8} For their first assignment of error, Appellants argue that:

THE TRIAL COURT ERRED IN GRANTING THE MOTION OF

DEFENDANT AMERICAN PSYCHOLOGICAL ASSOCIATION TO

DISMISS FOR LACK OF PERSONAL JURISDICTION.

{¶ 9} Appellants contend that the trial court erred by finding that it could not

exercise personal jurisdiction over the APA consistent with principles of due process.

Appellants’ Br. 8-10. According to Appellants, the APA subjected itself to the jurisdiction

of Ohio courts by publishing the Report in Ohio; by publishing the Report even though it

“knew that [statements in the Report] would cause injury in Ohio”; and by ratifying the

acts of Sidley-Austin and Hoffman in preparing the Report, which included a handful of

visits to the state and six interviews with Ohio residents. See id. at 12-18.

{¶ 10} The trial court did not discuss the application of R.C. 2307.382 in its

decisions of August 25, 2017, and the parties likewise have not addressed the statute in

their briefs to this court. R.C. 2307.382(A) authorizes an Ohio court to exercise personal

jurisdiction over a nonresident who, among other things, “[t]ransact[s] any business” here

or causes “tortious injury” to one or more persons within the state as the result of an act
 -6-

committed elsewhere “with the purpose of injuring persons,” so long as the act “might

reasonably have [been] expected” to cause injury to a person in Ohio. See also EnQuip

Technologies Group, 2d Dist. Greene Nos. 2009 CA 42 & 2009 CA 47, 2010-Ohio-28, ¶

60. Although R.C. 2307.382(A) has been interpreted broadly, particularly on the basis

of the phrase “[t]ransacting any business” in R.C. 2307.382(A)(1), its reach is not

unlimited. See, e.g., Kauffman Racing, 126 Ohio St.3d 81, 2010-Ohio-2551, 930 N.E.2d

74, ¶ 5-6 and 41-44; EnQuip Technologies at ¶ 60-62; Ashton Park Apts., 6th Dist. Lucas

No. L-08-1395, 2009-Ohio-6335, ¶ 3 and 14-18. The APA, however, has not formally

challenged the trial court’s implicit application of the statute.2

{¶ 11} Assuming, then, that R.C. 2307.382 nominally invested the trial court with

personal jurisdiction over the APA, the second step of the jurisdictional inquiry requires

an evaluation of whether the court’s exercise of jurisdiction would have comported with

Appellees’ rights to due process. Kauffman Racing at ¶ 28. Due process “is satisfied if

[a] defendant has ‘minimum contacts’ with the forum state such that the maintenance of

[a] suit does not offend ‘ “traditional notions of fair play and substantial justice.” ’ ” Id. at

¶ 45, quoting Internatl. Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90

L.Ed. 95 (1945), internally quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85

L.Ed. 278 (1940). The requirement of “minimum contacts” is met by a defendant’s

“purposeful availment” of the “privilege of conducting activities within the forum [s]tate,

thus invoking the benefits and protections of [the state’s] laws.” Hanson v. Denckla, 357

2 During the hearing on Appellees’ motions to dismiss, Sidley-Austin and Hoffman
informed the trial court that they were “not challeng[ing] jurisdiction under Ohio’s long-
arm statute.” Tr. of Hr’g 9:1-9:5 and 11:11-11:23, Aug. 25, 2017. The APA stated that
it “[did] not concede that there is long-arm jurisdiction,” but in its instant brief, it offers no
argument directed to the application of R.C. 2307.382. Id. at 27:21-28:2 and 38:3-38:12.
 -7-

U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); Kauffman Racing at ¶ 45.

{¶ 12} Within this framework, personal jurisdiction “can be either general or

specific, depending upon the nature of the [defendant’s] contacts * * * with the forum

state.” (Citation omitted.) Kauffman Racing at ¶ 46. A nonresident who has

“continuous and systematic contacts” with a given state is subject to general jurisdiction

and may be sued even on causes of action unrelated to the nonresident’s ongoing activity

in the forum. Kauffman Racing at ¶ 46; EnQuip Technologies at ¶ 74. Specific

jurisdiction, on the other hand, applies only when: (1) the nonresident defendant has

purposefully taken advantage of the privilege of operating within the forum state; (2) the

plaintiff’s claims arise out of the defendant’s activities in the forum state; and (3) the acts

of the defendant, or the consequences caused thereby, have a substantial enough

connection to the forum to make the exercise of jurisdiction over the defendant

reasonable. See Southern Machine Co. v. Mohasco Industries, Inc., 401 F.2d 374, 381

(6th Cir.1968); Kauffman Racing at ¶ 51 and 70-71; see also EnQuip Technologies, 2010-

Ohio-28, ¶ 75.

1. The APA did not purposefully avail itself of the benefits
and protections of Ohio law.

{¶ 13} Appellants do not argue that the trial court has general jurisdiction over the

APA. See Appellants’ Br. 9-10. They argue instead that the court has specific

jurisdiction because the APA’s activities in Ohio satisfy the tripartite test articulated by the

Sixth Circuit in Southern Machine. See id. With respect to the first part of the test,

Appellants posit that the APA purposefully availed itself of the privilege of conducting its

affairs in Ohio through its publication of the Report here “on multiple occasions”; by asking

its members, some of whom were residents of Ohio, to cooperate with Sidley-Austin’s
 -8-

investigation; and through the service of two Ohioans on its board of directors. 3

Appellants’ Br. 12, 14 and 18. Arguing that Sidley-Austin and Hoffman were the APA’s

agents, Appellants add that the APA vicariously availed itself of the privilege of operating

in Ohio through the interviews of “a total of six Ohio residents during the preparation of

the Report,” two of which took place in the state. (Emphasis omitted.) Id. at 15.

a. The publication of the Report did not constitute
purposeful availment.

{¶ 14} Regarding publication, Appellants present the following list of occasions on

which the APA, itself or through Sidley-Austin, published the Report: (1) on or about June

27, 2015, in an email announcement sent by Sidley-Austin notifying the APA’s board of

directors that the Report could be viewed on a secure website; (2) on July 10, 2015, in a

social media announcement issued by the APA; (3) on July 10, 2015, on the APA’s

website; and (4) on September 4, 2015, also on the APA’s website. Appellants’ Br. 12-

13. Appellants maintain that these publications demonstrate purposeful availment

because the email announcement reached the two members of the APA’s board of

directors who lived in Ohio, because the social media announcement “reach[ed]

approximately 1,392” Ohioans, and because the Report itself “became accessible to the

world,” including “the 1[,]500 members of [the] APA * * * in Ohio,” after being posted on

the APA’s website. Id. Accepting for sake of analysis that Sidley-Austin’s activities may

be imputed to the APA on the basis of an agency relationship, we find that the APA did

not “expressly aim[ ]” the Report at Ohio on any of these occasions. See Calder v. Jones,

3 Appellant Russell Newman avers that the “2005 APA Board of Directors” and the “2015
Board of Directors * * * each had two members from Ohio.” Affidavit of Russell Newman
¶ 17, May 6, 2017. The two members from Ohio in 2005 were apparently not on the
board in 2015. Compl. ¶ 59; Newman Aff. ¶ 17 and Ex. J; Appellants’ Br. 12-13.
 -9-

465 U.S. 783, 789, 104 S. Ct. 1482, 79 L.Ed.2d 804 (1984).

{¶ 15} The APA hired Sidley-Austin to investigate allegations of collusion and to

prepare a written report detailing the results of the investigation. Sidley-Austin, then, had

affirmative obligations to perform the investigation, to prepare a written report, and to

deliver that report to its client, the APA—a nonprofit corporation headquartered in

Washington, D.C. and capable of acting “only through its employees, subsidiaries, or

agents.” U1it4less, Inc. v. FedEx Corp., 871 F.3d 199, 205 (2d Cir.2017); Compl. ¶ 47.

In 2015, the APA’s board of directors had 13 members, of whom two were residents of

Ohio and three were residents of Georgia, the latter being the state with the greatest

representation on the board that year. See Affidavit of Russell Newman ¶ 17 and Ex. J,

May 6, 2017; Sidley-Austin’s Br. 3. The board is the “administrative agent” of the APA

body with “sole authority to approve policy and [to] appropriate * * * revenue,” the Council

of Representatives. Compl. ¶ 47.

{¶ 16} With this context in mind, Sidley-Austin’s email announcement of June 27,

2015, cannot fairly be characterized as purposeful availment of the privilege of transacting

business in Ohio. The firm had no control over the whereabouts of the members of its

client’s board of directors, but it did have an obligation to deliver the Report to the APA.

See Appellants’ Br. 5; APA’s Br. 5; Sidley-Austin’s Br. 2. Thus, the locations of the

members of the board were effectively coincidental with respect to Sidley-Austin’s

fulfillment of its obligations to the APA.

{¶ 17} By contrast, the social media announcement issued by the APA via Twitter

on July 10, 2015, along with the posting of the Report on the APA’s website, made the

Report “accessible to the world,” including a significant number of Ohio residents. See
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Appellants’ Br. 6-7; APA’s Br. 5; Sidley-Austin’s Br. 3-4. The significance, in Appellants’

view, lies in the APA’s knowledge that “defamatory statements [in the Report] would

cause injury in Ohio,” inasmuch as the “tort of libel is generally held to occur wherever the

offending material is circulated.” (Citation omitted.) Keeton v. Hustler Magazine, Inc.,

465 U.S. 770, 777, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984); see Appellants’ Br. 12-14;

Appellants’ Reply to Sidley-Austin’s Br. 3-4. Hence, because the APA knew the Report

would cause harm in this state, Appellants argue that the fact publications of the Report

reached at least some residents of Ohio establishes purposeful availment on the part of

the APA.4 See Appellants’ Br. 12-14; Appellants’ Reply to the APA’s Br. 6-7; Appellants’

Reply to Sidley-Austin’s Br. 4. Under “these circumstances,” say Appellants, the APA

“should have reasonably anticipated being haled into court in Ohio.” Appellants’ Br. 15.

{¶ 18} To determine whether a nonresident defendant has “minimum contacts”

with a forum, “a court properly focuses on ‘the relationship among the defendant, the

forum, and the litigation.’ ” Calder v. Jones, 465 U.S. 783, 788, 104 S. Ct. 1482, 79

L.Ed.2d 804 (1984), quoting Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 53

L.Ed.2d 683 (1977). The Calder case originated with a lawsuit in a California court

against the president of the Florida-based National Enquirer, along with one of its

reporters, brought by actor Shirley Jones in response to an allegedly libelous article. Id.

at 784-785. Notwithstanding that the “article [had been] written and edited by [the

4 Neither the email nor the Twitter announcement seems to have included a copy of the
Report itself. See Affidavit of Barry Anton ¶ 4, May 2, 2017; Affidavit of William Strickland
¶ 4, Apr. 25, 2017; see also Affidavit of Stephen Behnke ¶ 14, May 5, 2017; Affidavit of
Larry James ¶ 6, May 5, 2017; Newman Aff. ¶ 5 and Ex. C. Hence, we treat the
announcements as publications of themselves strictly for our jurisdictional analysis and
do not decide whether they would qualify as publications for purposes of the merits of a
claim for defamation.
 -11-

defendants] in Florida,” the Court observed that the article “concerned the California

activities of a California resident”; that the article “impugned the professionalism of an

entertainer whose television career was centered in California”; that the article “was

drawn from California sources” almost entirely; and that “the brunt of the harm, in terms

of [Jones’s] emotional distress and the injury to her professional reputation, was suffered

in California.” (Citations omitted.) See id. at 785 and 788-789. The Court concluded

accordingly that the defendants’ “actions were expressly aimed at California,” which was

“the focal point both of the story and the harm suffered,” and held that the defendants

were subject to personal jurisdiction in California as a result. (Emphasis added.) Id. at

789.

{¶ 19} In this case, the Report concerned the foreign and domestic activities of

residents of several states (including the District of Columbia). See Report 2-4, 9-14,

16-18, 20, 31, 36-39, 42-53, 58-59, 62-63 and 143;5 see also Appellants’ Br. 5; Newman

Aff. ¶ 14 and Ex. H; Sidley-Austin’s Br. 2. For example, the executive summary prefacing

the Report states that “key APA officials, principally the [former] APA Ethics

Director[, Stephen Behnke,] joined and supported at times by other APA officials, colluded

with important [United States Department of Defense] officials to have [the] APA [adopt]

loose, high-level ethical guidelines” for national security-related interrogations.

(Emphasis added.) See Report 9 and 12; Compl. ¶ 40. Appellant Stephen Behnke

resides in Washington, D.C., and although he has engaged in professional collaborations

“with the Ohio Psychological Association, the Ohio State Board of Psychology,” the

5 We refer to the copy of the revised version of the Report dated September 4, 2015, and
attached as Exhibit “2A” to the motion to dismiss under D.C. Code § 16-5502 filed by
Sidley-Austin and Hoffman on April 7, 2017.
 -12-

Veterans Administration in Cleveland, and sundry “educational institutions” in the state,

the record includes no evidence that these collaborations were anything other than

routine incidents of his former position as the APA’s Ethics Director. See id.

{¶ 20} Three of the four other appellants are also not Ohio residents and make no

claim that their careers are “centered in” Ohio. See Calder, 465 U.S. at 788; Compl. ¶

38-42; see also Report 532, 534 and 537. Appellant Russell Newman, a California

resident, “began his career as a psychologist at Harding Hospital in Worthington, Ohio,”

but the record includes no evidence that he has had any other legally meaningful

connection to the state in more than 20 years. Compl. ¶ 42; see Newman Aff. ¶ 12.

Newman, who “was forced to resign his positions” at Alliant International University in San

Diego, California, avers that he and his wife—Appellant, Debra L. Dunivin, who resides

in California or Washington, D.C.—have had difficulty finding employment since the

Report was published, though the complaint and Newman’s affidavit suggest that their

careers were centered in the District of Columbia in the past, and in California more

recently.6 See Compl. ¶ 41-42; Newman Aff. ¶ 6-7 and 12-13. Likewise, Appellant L.

Morgan Banks, III, resides in North Carolina and has no obvious connection to Ohio.

Compl. ¶ 39; Report 534. Of the five appellants, only Larry James has a career centered

in this state. Compl. ¶ 38; see Affidavit of Larry James ¶ 2, 4 and 21, May 5, 2017.

{¶ 21} In Calder, while overtly declining to consider the lower court’s position that

the defendants’ pre-publication “investigative activities” formed an “independent basis for

6 Dunivin herself has not submitted an affidavit. The complaint alleges that she resides
in Washington, D.C., but Newman avers that she lives in California. Compl. ¶ 42;
Newman Aff. ¶ 13. The discrepancy might be explained by the fact that Newman
executed his affidavit approximately three months after the filing of the complaint.
 -13-

an assertion of [personal] jurisdiction,” the Supreme Court noted, and then reiterated, that

the author of the defamatory publication had “rel[ied] on [tele]phone calls to sources in

California for the information contained in [his] article.” See Calder, 465 U.S. at 783,

785, 787 fn.6 and 788. The repeated mention of the location of the author’s sources

implies that the Court assigned some importance to this fact, even if the Court did not

decide that it should dictate the outcome of the case. Unlike the article at issue in Calder,

however, the Report seems to have been drawn from sources in many locations, mostly

outside of Ohio. See Report 6-7. Only six of 148 persons interviewed during Sidley-

Austin’s investigation were Ohioans; only two of “more than 200 interviews” were held in

Ohio; and the “more than 50,000 pages of documents” reviewed for the Report appear to

have had no distinct geographical origin.7 See Appellants’ Br. 5-6; Report 6-7; Sidley-

Austin’s Br. 2.

{¶ 22} The Calder opinion referred, as well, to the jurisdiction in which “the brunt

of the harm” is suffered. Calder, 465 U.S. at 788-789. Appellants Banks, Behnke,

Dunivin, and Newman live and work in other states (or the District of Columbia), and

based on the Court’s reasoning in Calder, the brunt of any “emotional distress [they

experienced, or] injury to [their] professional reputation[s],” occurred not in Ohio, but in

the jurisdictions where they reside or practice their professions. See id. at 789. Again,

7 The parties have not elaborated on the origin or precise nature of the documents. In
its brief, Sidley-Austin refers to “more than 50,000 pages of documents,” whereas the
Report refers to “over 50,000 documents.” (Emphasis added.) Report 6; Sidley-
Austin’s Br. 2; see also Appellants’ Br. 5-6. Sidley-Austin states in the Report that the
“most important” items were found among “a very large volume of emails and other
documents” stored on the “APA’s computer systems.” Report 6. Whatever the actual
number of documents might be, the compilation represents a variety of individual and
organizational sources. Id. at 6-7.
 -14-

Appellant James is the sole exception, given that he lives and works in Ohio.

{¶ 23} Yet, even assuming that all of the appellants were harmed here to some

extent, and discounting the importance of the locus of the “brunt of the harm,” the

relationship among Appellees, the State of Ohio, and Appellants’ causes of action is no

less tenuous. For instance, in Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 772, 104

S.Ct. 1473, 79 L.Ed.2d 790 (1984), a resident of New York sued Hustler Magazine, Inc.,

an Ohio corporation, for libel in federal district court in New Hampshire. On review of an

opinion from the First Circuit Court of Appeals deciding that the district court could not

properly exercise personal jurisdiction over Hustler, the Supreme Court reversed,

declaring jurisdiction proper regardless of the fact that “only a small portion of [the

allegedly offending issues of the magazine] were distributed in New Hampshire,” because

the limited circulation nonetheless represented a “continuous[ ] and deliberate[ ]

exploit[ation] [of] the New Hampshire market.” (Emphasis added.) Id. at 772, 775 and

781. The Court remarked, in reaching its conclusion, that although “the bulk of the harm

done to [Keeton] occurred outside New Hampshire,” presumably in Keeton’s home state

of New York, the same could be said “in almost every libel action brought somewhere

other than the plaintiff’s domicile.” See id. at 780-781. Seeing “no justification for

restricting libel actions to the plaintiff’s home forum” on this basis, the Court held that “the

victim of a libel, like the victim of any tort, may choose to bring suit” in any forum, so long

as the defendant has minimum contacts with that forum. Id.

{¶ 24} Aside from the harm for which Appellants seek recovery, the Report has

little substantive relationship to Ohio—it concerns the activities of residents of several

states, discusses events that occurred elsewhere, and presents information drawn from
 -15-

sources in a variety of places. See Report 9, 12-14, 16-18, 20, 36-39, 42-53, 58-59, 62-

63, 532, 534 and 537; Compl. ¶ 38-42; Appellants’ Br. 5; Sidley-Austin’s Br. 2; James Aff.

¶ 2, 4 and 21; Newman Aff. ¶ 6-7 and 12-14 and Ex. H. That is, even if Ohio is a focal

point of some of the harm allegedly caused by the Report’s publication, Ohio is not the

focus of the narrative set forth in the Report. See Calder, 465 U.S. at 789. In addition,

the circumstances suggest “no reason to believe that [the APA] intended to establish

‘continuing relationships and obligations’ ” in Ohio by commissioning or publishing the

Report, meaning that the Report “represents nothing more than an isolated transaction,”

as opposed to one element in an ongoing series of contacts. See Kerry Steel, Inc. v.

Paragon Industries, Inc., 106 F.3d 147, 151 (6th Cir.1997).

{¶ 25} Moreover, regardless of the fact that the APA made the Report “available

to the world,” and thereby to the residents of Ohio, the mere foreseeability that the Report

might cause Appellants harm in Ohio is insufficient, standing alone, to justify a finding that

the APA purposefully availed itself of the privilege of operating in Ohio. Appellants’ Br.

13; see, e.g., Reynolds v. Internatl. Amateur Athletic Fedn., 23 F.3d 1110, 1120 (6th

Cir.1994); Oasis Corp. v. Judd, 132 F.Supp.2d 612, 624 (S.D.Ohio 2001); Kauffman

Racing, 126 Ohio St.3d 81, 2010-Ohio-2551, 930 N.E.2d 74, ¶ 59-60, 63-65 and 67-68.

The Kauffman Racing case involved a defamation lawsuit against a defendant from

Virginia who entered into a business transaction with an Ohio corporation but “never

physically entered” the state. Kauffman Racing at ¶ 1-3. Although the record

established only that five or more Ohioans had actually seen the defendant’s allegedly

defamatory statements, the Ohio Supreme Court deemed the exercise of personal

jurisdiction to be warranted because the defendant “intended the effects of his conduct to
 -16-

be felt in Ohio,” or in other words, because the defendant’s conduct “went well beyond

foreseeability.” (Emphasis in original.) Id. at ¶ 41-42, 67 and 73. Comparing the facts

to Calder, the Court noted that in both cases the allegedly defamatory statements related

to the plaintiffs’ activities within their respective home states; that the plaintiffs’ reputations

were centered in their home states; that the statements relied on information sourced

from the plaintiffs’ home states; and that the statements were thus focused on the

plaintiffs’ home states. See id. at ¶ 57-60.

{¶ 26} The record in the instant matter provides no such indications that the APA

intended the brunt of any harm caused by the Report to be suffered in Ohio. See

Kauffman Racing at ¶ 56, 59-60 and 67-68. Finding that Ohio was not “the focal point

both of the story [set forth in the Report] and of the harm [allegedly] suffered” as a

consequence of the Report’s publication, we conclude that the APA did not purposefully

avail itself of the privilege of conducting its affairs in Ohio by publishing the Report.

(Emphasis added.) See Calder, 465 U.S. at 789.

b. Neither the APA’s request that its members
cooperate with the preparation of the Report, nor
the membership of Ohioans on the APA’s board of
directors, constitutes purposeful availment.

{¶ 27} Appellants argue that the APA actively sought out the privilege of

transacting business in Ohio by asking certain witnesses here to cooperate with Sidley-

Austin’s investigation. Appellants’ Br. 5 and 17-18. They also argue that the APA had

minimum contacts with Ohio by way of the membership of Ohioans on its board of

directors. See id. at 18.

{¶ 28} Regarding the former argument, Appellants themselves assert that the

“possible witnesses” in Ohio were in possession of information of particular relevance to
 -17-

the investigation. See id. at 5 and 18. Nevertheless, the importance of the witnesses’

information suggests that the APA asked the witnesses to cooperate with the investigation

not because of where they resided, but because of what they knew. See id.; see also

Sidley-Austin’s Br. 10-11 and 13.

{¶ 29} Regarding the latter argument, Appellants note that Ohio residents on the

APA’s board of directors “participated [by telephone and email] in [b]oard meetings and

decisions” involving the Report.8 Appellants’ Br. 18. Yet, the fact that Ohio residents

served on the board does not demonstrate that the APA sought to invoke the shield and

sword of Ohio law any more than the fact that Georgia residents served on the board

demonstrates that the APA sought to avail itself of the privilege of conducting its affairs in

Georgia. See Newman Aff. ¶ 17 and Ex. J, May 6, 2017; Sidley-Austin’s Br. 3.

{¶ 30} We find that the APA did not purposefully avail itself of the protections of

Ohio law by asking its Ohio membership to cooperate with Sidley-Austin’s investigation.

Similarly, we find that the APA did not have minimum contacts with Ohio simply because

Ohio residents served on its board of directors.

c. The APA did not purposefully avail itself of the privilege
of operating in Ohio as the result of the investigative
activities undertaken by Sidley-Austin and Hoffman.

{¶ 31} Appellants contend that because Sidley-Austin and Hoffman acted as the

APA’s agents, the APA should be held to have established minimum contacts with Ohio

through the investigation performed by Sidley-Austin. See Appellants’ Br. 15-16.

Specifically, Appellants posit that the investigation constituted purposeful availment on

the basis of “interview[s] of a total of six Ohio residents,” of which two “were [conducted]

8 See supra note 3.
 -18-

in-person in Ohio.” (Emphasis omitted.) Id. at 15. Characterizing three of the six

interviews as conspicuously significant, Appellants add that the quality of these contacts,

rather than the quantity, “determines whether purposeful availment” has occurred. See

id.

{¶ 32} We find that the interviews of Ohio residents did not constitute purposeful

availment, especially given that Ohio residents accounted for approximately 4 percent of

the 148 witnesses interviewed by Sidley-Austin. Appellants’ Br. 5-6; Report 6-7; Sidley-

Austin’s Br. 2. Notwithstanding the comparative significance of the information provided

by these witnesses, the fact that they lived in Ohio is little more than happenstance.

Furthermore, the alleged importance of the information suggests that Appellees would

have sought out these witnesses irrespective of where they resided.

2. Appellants’ claims do not arise from the APA’s activities
in Ohio.

{¶ 33} According to Appellants, because they have been defamed in Ohio as the

result of the Report’s publication, and because the Report itself was the product of the

APA’s pre-publication activities in Ohio, their claims for defamation arise from the APA’s

conduct of its affairs here, thereby satisfying the second part of the Southern Machine

test. See Appellants’ Br. 19. In Southern Machine, the Sixth Circuit Court of Appeals

held that for a court in a given forum to have personal jurisdiction over a nonresident

defendant, “three criteria” must be met, of which the second is the requirement that the

plaintiff’s “cause of action * * * arise from the defendant’s activities” there. Southern

Machine, 401 F.2d 374, 381 (6th Cir.1968); see also Kauffman Racing, 126 Ohio St.3d

81, 2010-Ohio-2551, 930 N.E.2d 74, ¶ 70. A cause of action having a substantial

connection to the defendant’s activities in the forum satisfies this criterion, which should
 -19-

be evaluated pursuant to a “ ‘lenient standard.’ ” Kauffman Racing at ¶ 70, quoting Bird

v. Parsons, 289 F.3d 865, 875 (6th Cir.2002).

{¶ 34} Because the “tort of libel is generally held to occur wherever the offending

material is circulated,” Appellants’ claims have some connection to the publication of the

Report. See Keeton, 465 U.S. 770, 777, 104 S.Ct. 1473, 79 L.Ed.2d 790; Kauffman

Racing at ¶ 41, citing Keeton, 465 U.S. at 777. The brunt of the harm caused by the

Report’s allegedly defamatory content, however, occurred outside of Ohio, and the APA’s

pre-publication activities here were largely limited to a handful of visits, communications

with its membership in the state, and the service of two Ohioans on its board of directors.

In the absence of a more substantial connection among Appellants’ claims and the APA’s

conduct in Ohio, we find that Appellants’ claims did not arise from the APA’s activities

here.

3. The APA’s activity in Ohio and the harm allegedly caused
by the publication of the Report do not have a substantial
enough connection to this state for the exercise of
personal jurisdiction over the APA to be reasonable.

{¶ 35} Appellants argue that the exercise of personal jurisdiction in this case would

be reasonable because litigating in Ohio would not be unduly burdensome for the APA,

because Ohio has a legitimate interest in the outcome of the litigation, and because

Appellants themselves have an “interest in repairing the damage to their reputations” in

Ohio. Appellants’ Br. 21. This argument relies on the inference that the third element

of the Southern Machine test is satisfied when the first and second elements have been

met. (Citations omitted.) See Kauffman Racing at ¶ 71; Appellants’ Br. 20-21.

{¶ 36} We have found that Appellants have not satisfied the first and second

elements of the Southern Machine test. Consequently, we need not consider the third
 -20-

element of the test, particularly because our finding that the APA did not purposefully avail

itself of the privilege of operating in Ohio “is dispositive.” Dean v. Motel 6 Operating L.P.,

134 F.3d 1269, 1275 (6th Cir.1998).

{¶ 37} We find that the APA did not purposefully avail itself of the privilege of

conducting its affairs within Ohio and that Appellants’ causes of action do not arise from

the APA’s activities in this state. Therefore, we conclude that the APA is not subject to

the personal jurisdiction of the trial court. Appellants’ first assignment of error is

overruled.

B. Assignment of Error No. 2

{¶ 38} For their second assignment of error, Appellants argue that:

THE TRIAL COURT ERRED IN GRANTING THE MOTION OF

DEFENDANTS SIDLEY AUSTIN LLP AND DAVID HOFFMAN TO

DISMISS FOR LACK OF PERSONAL JURISDICTION.

{¶ 39} Appellants raise two assignments of error, though they present the

assignments in the form of a single argument. Appellants’ Br. 8. Our foregoing

determination that the APA is not subject to the personal jurisdiction of the trial court

likewise obviates the need for a separate analysis with respect to Sidley-Austin and

Hoffman, given that we assumed for sake of analysis that Sidley-Austin and Hoffman’s

conduct could be attributed to the APA on the basis of an agency relationship. See also

Appellants’ Br. 15-18; Appellants’ Reply to Sidley-Austin’s Br. 2-3. Appellants’ second

assignment of error is overruled.

III. Conclusion

{¶ 40} We find that the trial court did not err by determining that it could not
 -21-

exercise personal jurisdiction over Appellees consistent with the principles of due

process. Therefore, Appellants’ assignments of error are overruled, and the trial court’s

decisions of August 25, 2017, sustaining Appellees’ motions to dismiss are affirmed.

.............

FROELICH, J. and HALL, J., concur.

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