The wonderfully-named case of Mighty Men of God v. World Outreach Church of Murfreesboro Tennessee et al. is a nice illustration of everything that is wrong with the Calder v. Jones “effects test” for personal jurisdiction – the notion that a defendant can be held to have “purposefully availed itself” of the “benefits and protections of [a State’s] laws” based on an allegation that its conduct caused harm in the forum state. I’ve ranted about this before:
The Calder “effects test” has wreaked all sorts of jurisdictional mischief, and is – slowly – dying a protracted death-by-narrowing in the lower courts . . . That’s good news. To those (like me) who believe that a court’s personal jurisdiction over defendants is ultimately premised on the notion of consent . . . the Calder doctrine is anathema; it allows courts to exercise jurisdiction over a defendant based upon the activities of the plaintiff (i.e., on where the plaintiff resides and where, therefore, the brunt of the harm may be felt).
It is, moreover, a wildly inappropriate doctrine for the Internet Age; if you’re subject to jurisdiction where the “effects” of your actions or communications are felt, then given that the “effects” of communications over the Internet can plausibly be felt everywhere and anywhere, simultaneously and instantaneously, the Calder doctrine has the potential to nullify any and all limits on personal jurisdiction and subject everyone to jurisdiction everywhere – not a reasonable outcome.
Here are the Mighty Men of God facts. Plaintiff is a Florida corporation; it provides “Christian educational services to individuals throughout the United States … focuse[d] on men . . . through conferences it holds frequently in many states.” Its conferences “are held under the name ‘Mighty Men of God,’ and are marketed using that name and the name ‘Mighty Men.’” Plaintiff maintains registered trademarks for both terms—“Mighty Men of God” (the “MMOG Mark”) and “Mighty Men” (the “Mighty Men Mark”).
World Outreach Church, the defendant, is a Tennessee non-profit corporation operating out of Murfreesboro, Tennessee. It also apparently offers Christian educational seminars and conferences, oriented towards men. Two such conferences took place in 2013, the first in Murfreesboro, Tennessee and the second in Nashville, Tennessee. It also maintains a website—www.intendministries.org—through which they “permit visitors to sign up for email messages, listen to music or sermons, and purchase various products.”
MMOG alleges that the defendant marketed its services, organized conferences, and sold merchandise using MMOG’s trademarks.
The question presented isn’t (yet) whether or not it did so. The question is whether or not these activities subject the defendant to the personal jurisdiction of a Florida court – i.e., whether, by holding these conferences and hosting this website, World Outreach Church “purposefully availed itself” of the benefits and protections of Florida’s law. The court, applying the Calder “effects test,” finds that it does.
To satisfy the effects test, the tort must have: (1) [been] intentional; (2) [been] aimed at the forum state; and (3) caused harm that the defendant should have anticipated would be suffered in the forum state.
Somehow, the court finds that World Outreach satisfies this test, that it intentionally aimed its conduct at Florida and caused harm that it should have anticipated would be suffered in Florida. How?
[T]his case involves allegations of intentional conduct, thereby satisfying the first requirement of the effects test. . . . [And] Defendants are alleged to have individually targeted Plaintiff, which is a Florida-based entity, thereby satisfying the second and third prongs of the effects test. (emphasis added)
The court explained further:
[T]he defendant’s [alleged] infringement was not negligent, but intentional. … The purpose was to make money from [the plaintiff’s] implied endorsement. The unauthorized use of [the plaintiff’s] mark, therefore, individually targeted [the plaintiff] in order to misappropriate his name and reputation for commercial gain. Such allegations … satisfy the Calder effects test for personal jurisdiction, and therefore, the Constitution [is] not offended by the exercise of Florida’s long-arm statute to effect personal jurisdiction over the nonresident defendant.
Well, that was easy! Simply allege an unauthorized use of your trademark – that it was not used by accident, but via an “intentional” act – and presto! you can subject the defendant to the personal jurisdiction of your home court (because wherever you are located, the “effects” have occurred and the defendant, attempting (allegedly) to misappropriate your name and reputation, has “targeted” you). QED.
It can’t be that easy, and it shouldn’t be that easy. One can only hope that the Supreme Court finds an opportunity someday soon to take Calder out of its (and our) misery.