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T.C. STONE,  
Plaintiff, 

v.                                                                                  No. 3-92CV0939-G

DIANA KILMURY, et al., 
Defendants.

Plaintiff's arguments for personal jurisdiction were largely anticipated by the motion to dismiss. Indeed, plaintiff has chosen to ignore most of the legal and factual defects in his position that were discussed in that motion. Four points remain to be made. We also supply the Court with citations to authorities that were reported since the motion to dismiss was filed:

1. Defendants discussed the long line of cases holding that, when a tort is allegedly committed in a publication that is disseminated in multiple jurisdictions, the defendants cannot necessarily be sued in a particular forum simply because a small fraction of the publications are sent into that jurisdiction. Rather, the courts hold, the volume of contacts with the forum must be sufficient to warrant the exercise of specific personal jurisdiction.

Plaintiff contends that this analysis is limited to "newspapers and magazines," because the law is that sending only one letter to the forum state suffices to support personal jurisdiction there. Plaintiff is wrong, for several reasons. First, the mere transmission of a tortious letter into the forum state, standing alone, is insufficient to require the non-resident transmitter of the letter to defend a tort suit in that state. Aviles v. Kunkle, 978 F.2d 201, 204 n.5 and 205 (5th Cir. 1992) (letter and phone call to Texas tortiously misrepresented facts); Conti v. Pneumatic Prod. Corp., 977 F.2d 978, 982 (6th Cir. 1992) (same); National Ass'n of R.E. Appraisers v. Schaeffer, 1989 U.S. Dist. LEXIS 3098 (C.D. Cal.) (libelous letter sent to California).

Second, the distinction for which plaintiff argues has no basis in law. The principal reason for the rule against basing jurisdiction on a handful of transmissions is the recognition that, by subjecting those who exercise their right to communicate to the burden of defending suits in a distant forum, courts would discourage the communication itself. E.g., Conti, supra, 977 F.2d at 983; Regency Oldsmobile v. General Motors Corp., 685 F.2d 91, 95 (D.N.J. 1988). Fundraising for educational and legal reform activities, in the course of which the author describes on-going problems in a major union, is not mere commercial speech; it is a core free speech activity, see Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 628-632 (1980), and thus merits as much protection from undue burdens as newspapers and magazines enjoy. See also Branzburg v. Hayes, 408 U.S. 665, 684-685 (1972) (refusing to give press greater free speech right than general public).

Third, the type of speech in defendants' letter -- speech at the core of the First Amendment -- distinguishes it from some of the cases cited by plaintiff. First American First v. NABW, 802 F.2d 1511 (4th Cir. 1986) (letter recommended one travel agent over another), and Fidelity State B. & T. Co. v. Merrill Lynch, 768 F. Supp. 300 (D. Kan. 1991) (commercial credit rating) both involved commercial speech, which receives far less consideration in the constitutional context than core free speech does.⁽¹⁾

Finally, most of plaintiff's cases are inapposite because, in all except First American First, the alleged libel was contained either in a single letter that was sent only to the forum state (in Brown, a single telephone call), or in one of a few letters, one of which was sent to the forum state. The reason why this is important is that libel is a "unitary tort": the plaintiff can sue the defendant only once even if hundreds or even thousands of copies of the libel were published. In deciding which jurisdictions may provide the forum for the suit, therefore, the courts consider whether the relative volume of the communications sent to the forum was enough to require a defendant to litigate there. Hence, what is important is not only the absolute number of letters sent to the forum, but the fraction of the whole that was sent there. If there was only one, or only a few communications, then the transmission of a single communication to the forum state may support a conclusion that enough of the single tort was committed there; if there were thousands of copies, on the other hand, the fact that a mere handful, amounting to a small fraction of the total publication, is not enough to warrant the exercise of personal jurisdiction there.

2. Plaintiff argues that because he is a "mere individual," he should not have to litigate in a distant forum because Kilmury is receiving pro bono representation in this case. Pl. Mem. 10, 12. The Court need not reach this issue, which is relevant only to the second, multi-factor prong of the specific jurisdiction test, based on "traditional notions of fair play and substantial justice"; as explained in our opening memorandum, at 10-11, plaintiff does not even satisfy the first prong. In any event, that plaintiff's argument is vastly overstated. Plaintiff is the principal officer of several Teamster union entities; one of them alone, Teamsters Local 745 alone has $2,480,000 in assets, and $3,011,000 in revenues. See Levy Affidavit, Exhibit E. The Local alone is thus twenty times as big as defendant TRF. Plaintiff is represented in this case by Local 745's counsel, id., who owes his employment as such to plaintiff, and it is most likely that, as is often true when the chief executive officer of a large entity with ample legal business needs legal assistance, plaintiff is receiving representation without paying legal fees. In order to confirm this assumption, defendants have served discovery to ascertain the precise nature of plaintiff's arrangement with his counsel, as well as the volume of paying legal business that plaintiff is responsible for directing to his counsel. When this discovery is answered, we will supplement our filing with this Court.

The enormity of the task of reforming the Teamsters union has often been noted, and only limited resources are available for that effort. Every Teamster officer has access to the lawyers that his local or other body hires, and the total assets available to bring litigation against the Teamster reform movement far outstrip the meager resources available to reformers, even when the occasional pro bono lawyer is available. If, in addition to having to defend libel cases brought whenever a Teamster official doesn't like something that is said, reformers can be forced to defend themselves in every jurisdiction across the country, Teamster incumbents will be well on their way to discouraging criticism and bankrupting anyone who dares to raise uncomfortable truths. If the issue is fairness and relative burdens on the plaintiff and defendant, the relative ability to litigate strongly favors denial of jurisdiction here.

3. Without making the least effort to rebut defendants' argument that Due Process developments during the past decade bar use of republications by third parties as a basis for specific personal jurisdiction over a nonresident publisher, plaintiff argues that republication occurred here, and that it was foreseeable both that the letter would be forwarded to employers and that such employers would use it. Plaintiff's only argument in support of its contention that immediate recipients of the letter would likely recirculate it (thus giving an employer the opportunity to obtain it) is that some publications funded by TRF urge the Teamster members who receive them to recirculate them. Mem. at 4-5. But it is undisputed that Teamster members were deliberately excluded from the mailing list of persons to whom the fundraising letter was sent. See Gruelle Affidavit, ¶ 13. Nor does plaintiff dispute that fundraising letters of this sort simply are not generally recirculated. See Gruelle Affidavit, ¶¶ 11-12. Thus, although in hindsight it appears that the letter was recirculated to and by third parties, the argument that defendants may be sued in Texas based on that recirculation falls as a matter of fact as well as a matter of law.⁽²⁾

4. In arguing for general personal jurisdiction, plaintiff cites three cases for a jurisdictional standard (not a standard for general jurisdiction), but in none of them was general jurisdiction upheld. Plaintiff cites no cases where general jurisdiction was upheld based on volume or nature of contacts with the forum similar to this case. Two recent rulings refuse to allow general jurisdiction over companies whose volume of business with the forum state was many times greater than that of Kilmury or TRF. In Conti v. Pneumatic Prod., supra, 977 F.2d at 981, defendant sold more than $900,000 worth of products annually to Ohio through one of two agents, and sometimes telephoned or sent employees to Ohio to service its Ohio customers. In Doe v. National Med. Serv., 974 F.2d 143, 145 (10th Cir. 1992), a defendant transacted over $800,000 worth of business annually for Colorado clients. Neither defendant was held to be subject to general personal jurisdiction, and so neither Kilmury nor TRF, which have had far less contact with Texas, may be sued in Texas based on general personal jurisdiction.

Plaintiff offers to supplement his brief in support of general jurisdiction with TRF's answers to his third interrogatories, which inquire about the volume of certain publications (unrelated to the cause of action) that were sent to Texas. TRF is finalizing its answers, and will send them to the Court, because they do not support plaintiff's claim. Rather, they show that TRF sold about $200 worth of publications in Texas during the past two years, and sent or aided the dissemination of a fairly small number of other materials there during that period.⁽³⁾

The action should be dismissed for lack of jurisdiction.

Respectfully submitted,

Paul Alan Levy (DC Bar No. 946400)

Public Citizen Litigation Group
 
 
 

Steven B. Thorpe

(Texas Bar No. 19990500)

Crews, Thorpe & Hatcher
 
 

Of counsel for TRF:

Barbara Harvey

(Mich. Bar No. P25478)

January 13, 1993 Attorneys for Defendants

1. It is not clear what sort of speech was at issue in Brown v. Flowers Indus., 688 F.2d 328 (5th Cir. 1982). But plaintiff certainly errs by asserting that the libel was contained in a letter. Rather, it was contained in a telephone call.

2. Plaintiff claims that "the issue of likelihood of publication has been joined and precludes dismissal." Mem. at 5. In fact, plaintiff has submitted no evidence to show that the recipients of the letter were likely to recirculate, but in any event plaintiff has had eight months since this action was filed to take discovery on jurisdiction. In that circumstance, it is not enough to "join issue" through affidavits and supposition; plaintiff must prove that the Court has jurisdiction.

In order to show Ms. Kilmury's knowledge that the letter would be sent to Texas, plaintiff asserts, Mem. at 3, that she "knew that TRF regularly makes mail solicitations into and publishes documents into Texas." In fact, neither the cited depositions and interrogatory answers, nor any other evidence, supports this contention.

3. The group of communications with the greatest volume was telephone calls made to TRF from Texas. That will not support jurisdiction in any event, because jurisdiction may only be based on actions purposefully directed by TRF into the Texas forum, not actions by Texans directed to TRF from the forum.

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