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The New Jersey Supreme Court’s first effort to adopt state jurisdictional tests to cyberspace communications might just as well have been written on the same typewriter it’s been using for years. In Blakey v. Continental Airlines, Inc., 164 N.J. 38, the Supreme Court recently ignored the developing national body of law in this area to stick to a well-worn analysis. At the same time, the Court seems to have gone out of its way to keep the jurisdictional door open for a New Jersey Law Against Discrimination plaintiff. In Blakey, the court was faced with an out-of-state plaintiff who had an active Title VII Civil Rights suit pending against Continental Airlines in Newark federal court. She brought an LAD claim for defamatory retaliatory harassment in Essex County against allegedly trash-talking, out-of-state colleagues participating in an online bulletin board used by Continental employees. The court ruled on both the questions of potential jurisdiction and Continental’s liability for cyberharassment by its pilots outside of the workplace. The court said that if cyberspace is used for corporate purposes, defamatory retaliatory harassment through that medium becomes part of the workplace for purposes of the LAD. Even if those alleged cyberharassers were nonresidents, if they knew that the plaintiff had filed a separate action for harassment in New Jersey, they must have intended that the harm be felt there, and the New Jersey courts should retain jurisdiction over these defendants. (The court sent the case back for more discovery on who knew what and when.) Although the case may broaden the reach of the LAD for plaintiffs in some contexts, it doesn’t require much new circuitry to follow the analysis, which the court concedes are first-year civil procedure cases, U.S. Supreme Court stalwarts such as Pennoyer v. Neff, International Shoe v. Washingtonand Calder v. Jones. Blakey, as Justice Daniel O’Hern quite rightly notes for the unanimous court, is a “poor vehicle through which to explore the complexities of personal jurisdiction in an age of electronic commerce.” Nevertheless, it is the high court’s first pass on these thorny questions of personal jurisdiction, and it sets out a few guideposts for litigators. The question remains, however, whether the court has simply gone the extra mile to protect a plaintiff in view of the state’s exceptionally broad LAD, or whether cyberspace commentators worldwide had better watch their language or face the worldwide jurisdiction of the New Jersey courts. One reason not to make too loud a declaration for a newfound dot-com jurisdiction is that this case is incredibly fact-sensitive. Tammy Blakey was one of the first women pilots of large aircraft for Continental Airlines in 1993 when she filed a sex harassment lawsuit against the airline in federal court in Washington state, where her primary residence was located. The case was transferred to federal court in Newark, where she was based for Continental. In 1995, well before trial, a magistrate denied her attempt to amend her complaint to add a defamation claim. Subsequently she filed a defamation claim in New Jersey Superior Court against Continental and several pilots who allegedly made defamatory comments about Blakey’s qualifications on an electronic bulletin board system that was run by CompuServe for the airline. The system has two parts, a Crew Managing System (CMS) and a Forum that allowed pilots to post messages for each other. The allegedly defamatory messages were placed on the Forum. The second reason not to think that this decision means expansion of dot-com jurisdiction is the lesson provided by a previous O’Hern opinion for a unanimous court, Lebel v. Everglades Marina Inc., 115 N.J. 317 (1989). The Appellate Division panel and the trial court relied on the standard two-part test last laid out by the state Supreme Court in Waste Management Inc. v. Admiral Insurance Co., 138 N.J. 106 (1994), and based on principles from International Shoe v. Washingtonand its progeny (due process requires that nonresident defendants “have certain minimum contacts with the [forum state] such that maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice’”). The “minimum contacts” test measures whether (1) general jurisdiction applies (whether there are continuous and systematic contacts with the forum state not related to the lawsuit) or (2) whether there is specific jurisdiction (where the cause of action stems directly from a defendant’s purposeful contacts with the forum state). If minimum contacts have been established under either analysis, the court must determine whether “traditional notions of fair play and substantial justice” apply — the fairness of requiring a defendant to defend the lawsuit in the plaintiff’s chosen jurisdiction. This requires an assessment of (1) the burden on the defendant, (2) the interests of the forum state, (3) the plaintiff’s interest in obtaining relief, (4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies and (5) the shared interest of the several states in furthering fundamental social policies. Accura Zeisel Mach. Corp. v. Timco Ind., 305 N.J. Super. 559, 566 (App. Div. 1997). This second prong also allows a court the most flexibility in rationalizing its decision to retain jurisdiction. It is far more subjective. Courts around the country have been especially careful not to allow the immediacy of cyberspace contact to translate into sweeping jurisdiction for any seeming harm coming across a modem wire. After analyzing a series of older print media cases and a series of newer cyberlaw cases, the Appellate Division and trial court in Blakeyanalyzed the first prong of the International Shoetest and concluded the following:
[w]e … have located no case in which a court has found personal jurisdiction over a non-resident defendant for allegedly defamatory remarks communicated electronically when the plaintiff did not reside in the forum state, plaintiff’s employment was not based on the forum state, and the defendant’s electronically transmitted remarks were not specifically targeted at the forum state. Indeed to do so would go beyond the limits of due process.

322 N.J. Super. 187, 206. In Blakey, the plaintiff did not reside in the forum state and her employment was not based in the forum state (but her employer had a substantial presence in this state). In the end, the appellate panel concluded there was nothing in the record to suggest that the remarks were specifically targeted at this state or were calculated to produce identifiable harm to plaintiff in this state. Without the finding of specific targeting in the forum, there is no way to achieve specific jurisdiction. The crux of the difference between the appellate decision and the Supreme Court seems to rest on the high court’s willingness to give a broader view to the record. The justices determined that there was a real potential that the defendants’ electronically transmitted remarks were targeted at New Jersey (giving the Court an opportunity to expand the definition of a workplace for cyberspace-related LAD claims). The Supreme Court indicated that such targeting could have existed and sent the case back for more fact-finding. Within the restraints of an intermediate court, the Appellate Division was attempting to move state law to the evolving view that there is no nationwide jurisdiction for defamation actions “and the advent of the Internet and electronic bulletin boards does not change that fact.” 322 N.J. Super. at 211. If the panel was at all concerned about how O’Hern and the rest of the high court might react to its decision, its members merely needed to read Lebelmore closely. In Lebel, the Court found that a Florida boat seller had sufficient minimum contacts with New Jersey and that subjecting him to suit here did not offend traditional notions of fair play and substantial justice. The seller made several contacts with the buyer in New Jersey by telephone and mail, and the plaintiff ultimately took delivery and registered his boat, a luxury cigarette racer, in Florida. However, while making arrangements with a third-party shipper to bring the boat back to the state, the plaintiff learned that defendant may have defrauded him in connection with the sale, and he sued for fraud. The Appellate Division said that the burden of forcing the boat seller “to litigate the ramifications of an essentially Florida business transaction in New Jersey’s courts is too severe to withstand constitutional scrutiny.” 225 N.J. Super 316, 324 (1988). Writing for the court in Lebel, O’Hern declined to rely on the then-unsettled “stream of commerce” theory (whereby the defendant intentionally put his product in the stream of commerce in the state) and instead declared that the Court would “stay with the basics.” Essentially, the Court ruled, the pleadings set forth a case that the defendant purposefully directed his activities at New Jersey; when a nonresident defendant purposefully directs its activities to the forum and the litigation results from alleged injuries that arise of or relate to those activities, the forum may assert personal jurisdiction over the defendants. Once the Court established this specific jurisdiction, it was not a huge leap for it to rationalize the state’s interest in protecting its residents and in determining that the marketer of a “big-ticket” item should have anticipated that a breach of contract suit would expose it to suit in the forum of the buyer. Fast forward to Blakey: same justice, same “basic” analysis: There will be no jumping on the trend of the moment; if an intentional tort is alleged to have been directed at a person within the state, it creates specific jurisdiction. Even if, unlike New Jersey resident Richard Lebel, Seattle resident Tammy Blakey’s act of using the forum allows her to rely on LAD redress. In Blakey, the state’s interest for general jurisdiction is required to protect the integrity of its LAD statute. “The effect of retaliatory falsehoods on [Blakey] could reasonably influence the anti-discrimination policies of the forum by deterring [Blakey's] resolve.” 164 N.J. at 70. Blakeyis a tough policy statement that this Court — with or without the prodding of O’Hern, who has since retired — will stick to the “basics” of its plaintiffs from tortious attacks that originate from out of state. We will have to wait until a less-sensitive tort reaches the Court in a cybersetting before we will know whether the Court will help settle this new area of law. The author is a litigator and former editor of the New Jersey Law Journal who concentrates on media and privacy law with McCusker, Anselmi, Rosen, Carvelli & Walshin Chatham, New Jersey.

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