This post examines an opinion recently issued by a U.S. District Court Judge who sits in the U.S. District Court for the Eastern of Michigan. Binion v. O’Neal, 2015 WL 1505673 (2015). He begins the opinion by explaining that
Jahmel Binion (Plaintiff) is suing
Shaquille O'Neal (O'Neal), Alfonso Clark `Trey’ Burke (Burke), and Juaquin
Malphurs (Malphurs) (collectively, Defendants) claiming that Defendants posted
mocking and ridiculing photographs of him on social media websites.
Binion v. O’Neal, supra.
He also noted that the Complaint Binion filed to initiate the suit
alleged four different causes of action: invasion of privacy, intentional infliction of emotional distress, defamation and general negligence. Binion v. O’Neal, supra.
According to one news story, this is how the suit arose:
A disabled man is suing former NBA
great Shaquille O'Neal and two other celebrities for ridiculing his appearance
in an online post.
Jahmel Binion, 23, claims he suffered
emotional distress after O’Neal posted a picture on Instagram of his own
contorted faced next to Binion's with the caption 'Smile Today'. The April post gained more than 14,000 likes,
with basketball player Trey Burke and rapper Waka Flocka Flame joining in on
the teasing.
Following a public backlash, the post
was deleted and Shaq and Burke apologized to Binion.
However, the Michigan man has filed a lawsuit
in Macomb County alleging that O’Neal, Burke and Waka Flocka Flame
intentionally inflicted emotional distress, invaded his privacy and defamed
him, Macomb Daily reported.
In the lawsuit, Binion claims the mocking photos 'constituted a public disclosure
of embarrassing private facts about the plaintiff' and 'placed plaintiff in a
false light in the public eye.'
Binion was diagnosed with hypohidrotic ectodermal dysplasia as a baby, a disorder which causes sparse hair growth,
missing teeth and facial deformities. He
said he struggles to hold down a job and can't work in hot conditions.
You can, if you are interested, see some of the photos
mentioned in the article above here. And you can find another story about the case here.
The suit was filed in a U.S. District Court, which means
that the litigation process was governed by the Federal Rules of Civil Procedure. As Wikipedia explains, under
the Federal Rules, which apply when a plaintiff files a complaint and thereby
initiates a lawsuit against the defendant or defendants, the latter can strike
back by filing a motion to dismiss the plaintiff’s suit under Rule 12(b).
Rule 12(b) gives a defendant several choices as to the basis
for filing a motion to dismiss, but O’Neal chose only one: “lack of personal jurisdiction". Binion
v. O’Neal, supra. As Wikipedia also
explains, “personal jurisdiction” refers to a court’s
jurisdiction over the parties to
a lawsuit, as opposed to subject-matter jurisdiction, which is
jurisdiction over the law and facts involved in the suit.
If a court does not have personal jurisdiction
over a party, its rulings . . . cannot be enforced upon that party. . . . A
court that has personal jurisdiction
has both the authority to rule on the law and facts of a suit and the power to
enforce its decision upon a party to the suit. . . .
(emphasis in the original). The District Court Judge therefore wrote the opinion this post examines to explain
why he was ruling the way he was on O’Neal’s motion to dismiss under Rule 12(b)(2). Binion
v. O’Neal, supra. In his motion,
O’Neal argued that “not subject to personal jurisdiction in Michigan by merely
posting images of [Binion] on his Instagram and Twitter accounts.” Binion v. O’Neal, supra.
The judge began his opinion with a review of the
“background” of the case, the initial installments of which dealt with social
media:
Instagram is a social media website
that describes itself as a `fun and quirky way to share your life with friends
through a series of pictures.’ (FAQ, INSTAGRAM. COM,, https://instagram.com/about/faq/
(last visited Mar. 5, 2015)) Every Instagram user is advised that `[a]ll photos
are public by default which means they are visible to anyone using Instagram or
on the instagram.com website.’ FAQ, INSTAGRAM. COM, supra. However, Instagram allows users to `make [their] account
private’ such that `only people who follow [the user] on Instagram will be able
to see [their] photos.’ FAQ, INSTAGRAM. COM, supra. If the Instagram user fails to make his/her account private,
`anyone can subscribe to follow [their] photos.’ FAQ, INSTAGRAM. COM, supra.
Instagram's privacy policy states that
`[b]y using our Service you understand and agree that we are providing a
platform for you to post content, including photos, comments and other
materials (“User Content”), to the Service and to share User Content publicly.
This means that other Users may search for, see, use, or share any of your User
Content that you make publicly available through the Service.’ (Privacy
Policy, INSTAGRAM. COM., https:// instagram.com/about/legal/privacy/ (last
visited Mar. 5, 2015)) The privacy policy further states, `[a]ny information or
content that you voluntarily disclose for posting to the Service, such as User
Content, becomes available to the public, as controlled by any applicable
privacy settings that you set. . . . Once you have shared User Content or made
it public, that User Content may be re-shared by others.’ Privacy Policy, INSTAGRAM.
COM., supra.
Binion v. O’Neal, supra.
The judge went on to further explain that,
[l]ike Instagram, Twitter is a social
media website that allows users to post `Tweets,’ which are described as `an
expression of a moment or idea. It can contain text, photos, and videos.
Millions of Tweets are shared in real time, every day.’(The Story of a
Tweet: What Is a Tweet, TWITTER.COM, https://about.twitter.com/what-is-twitter/story-of-a-tweet
(last visited March 12, 2015)). As with Instagram, Twitter allows users
to `share photos, in real time, with everyone or with the people [they]
choose.’ (So Much More than Words,TWITTER.COM,
https://about.twitter.com/products/photo-sharing (last visited March 12,
2015)). Twitter users can also `follow’ other users, so that others' Tweets
will appear in the user's Twitter feed. Finally, Twitter allows users to
re-post or `Retweet’ content from other users' Twitter feeds to be shared with
their own followers. (The Story of a Tweet: What Is a Tweet, supra. . . .
Binion v. O’Neal, supra.
Before the judge began his analysis of O’Neal’s motion to
dismiss, he outlined the essential facts in the case:
Because the Court is responding to
O'Neal's Motion to Dismiss, the facts alleged in the Complaint . . . are
accepted as true and are summarized below.
[Binion] is an individual who resides
in Macomb County, Michigan. [He] suffers from a rare genetic condition
called ectodermal dysplasia, which causes cosmetic abnormalities in the
hair, nails, sweat glands, and teeth. O'Neal is a former professional
basketball player residing in Florida and Massachusetts.
In April of 2014, when [Binion] was
approximately 23 years old, [he] posted a number of photographs of himself on
his public Instagram account. O'Neal obtained a photograph of [Binion] and
posted it on his Instagram and Twitter accounts, side-by-side with a photograph
of O'Neal mockingly contorting his face to look like [Binion’s]. O'Neal has an
estimated half-million Instagram followers and 8.46 million Twitter followers.
Binion v. O’Neal, supra.
The judge then took up the personal jurisdiction issue,
noting that a federal court’s
`exercise of personal jurisdiction in a
diversity of citizenship case must be both (1) authorized by the law of the
state in which it sits, and (2) in accordance with the Due Process Clause of the 14th Amendment.’ Neogen Corp. v. Neo Gen Screening, Inc., 282
F.3d 883 (U.S. Court of Appeals for the 6th Circuit 2002) . . . In
this case, [Binion] is not invoking general jurisdiction under Michigan's
general jurisdiction statute, [Michigan Compiled Laws] § 600.711, but limited
jurisdiction under Michigan's `Long Arm’ statute, [Michigan Compiled Laws] § 600.705 .
Michigan's limited jurisdiction
provisions permit the exercise of jurisdiction to the extent limited by due
process requirements; thus, `[w]here the state long-arm statute extends to the
limits of the due process clause, the two inquiries are merged and the court
need only determine whether exercising personal jurisdiction violates
constitutional due process.’ Bridgeport Music, Inc. v. Still N the Water
Pub., 327 F.3d 472 (U.S. Court of Appeals for the 6th Circuit 2003).
Binion v. O’Neal, supra.
He went on to explain that the court’s jurisdiction “comports
with” due process
`when defendant has sufficient minimum
contacts such that traditional notions of fair play and substantial justice are
not offended.’ Intera Corp. v. Henderson, 428 F.3d 605 (U.S. Court
of Appeals for the 6th Circuit 2005). The Sixth Circuit uses a three-part test
in determining whether, consistent with due process, a court may exercise
limited personal jurisdiction: (1) the defendant must purposefully avail
himself of the privilege of acting in the forum state or causing a consequence
to occur there; (2) the cause of action must arise from the defendant's
activities in the forum state; and (3) the defendant's acts or the consequences
caused by the defendant must have a substantial enough connection with the
forum state to make the exercise of jurisdiction over him reasonable. So. Machine
Co. v. Mohasco Industries, Inc., 401 F.2d 374 (U.S. Court of Appeals
for the 6th Circuit 1968). There is an inference that the exercise of
jurisdiction is reasonable where the first two elements have been
satisfied. CompuServe, Inc. v. Patterson, 89 F.3d 1257 (U.S.
Court of Appeals for the 6th Circuit 1996).
Binion v. O’Neal, supra.
The judge also noted that in order to establish “purposeful
availment,” the defendant
must perform some act whereby the
defendant purposefully avails himself of the privilege of doing business in the
forum state. Burger King v. Rudzewicz, 471 U.S. 462 (1985). There
must be a substantial connection between the defendant's conduct and the state
such that the defendant `should reasonably anticipate being hauled into court
there.’ Burger King v. Rudzewicz, supra. As the Supreme Court recently stated, `[t]he
principal inquiry in cases of this sort is whether the defendant's activities
manifest an intention to submit to the power of a sovereign. J. McIntyreMach., Ltd. v. Nicastro, 131 S.Ct. 2780 (2011).
Binion v. O’Neal, supra.
The District Court Judge then went on to explain that in a tort
case involving
defamatory content posted on an internet
website, courts in the 6th Circuit have used two different tests to determine
if purposeful availment has been established. First, the `Zippo test’
considers how interactive the website is with the people in the forum
state. See Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp.
1119 (U.S. District Court for the Western District of Pennsylvania 1997).
Second, the `Calder test’ considers whether the `effects’ of the
defendant's intentional tortious conduct, which the defendant could expect to
be felt in the forum state, was sufficient for the forum's courts to exercise
jurisdiction over him. Lifestyle Lift Holding Co. v. Prendiville, 768
F.Supp.2d 929 (U.S. District Court for the Eastern District of Michigan 2011).
Binion v. O’Neal, supra.
The judge then explained that under the Zippo test, a defendant “`purposefully avails itself of the
privilege of acting in a state through its website if the website is
interactive to a degree that reveals specifically intended interaction with
residents of the state.’” Binion v.
O’Neal, supra. He also noted that courts which, like the
Eastern District of Michigan, are part of the U.S. Court of Appeals for the 6th
Circuit, have held that social media sites
`do not lend themselves’ to the Zippo test
because the defendants do not own or operate the websites, but is merely a
visitor or an account holder; in addition, the websites are generally not used
primarily to conduct business. See, e.g., Hyperbaric Options v.
Oxy-Health, LLC, 2013 WL 5449959
(U.S. District Court for the Eastern District of Michigan 2013). Other
courts have applied the Zippo test to social media websites
and held that personal jurisdiction is not established by merely posting
content on websites such as Facebook: although `slightly more interactive’
because of the ability to `like,’ share, or comment on postings, the site `lack[s]
a commercial nature, and additional interactivity [is] absent.’ Thomas v.
Barrett, 2012 WL 2952188 (U.S. District Court for the Western District of Michigan 2012).
A similar result is necessary here.
Although highly offensive, O'Neal's posts on Instagram and Twitter were little
more than the posting of information on social media websites, which became
accessible to users in Michigan and elsewhere. The websites are not owned or
operated by O'Neal, were minimally interactive, and the postings were not
intended to conduct business.
Binion v. O’Neal, supra.
He also explained that under the Calder “effects” test, a plaintiff must
establish that
`(1) the defendant intentionally
committed a tortious action which was expressly aimed for dissemination in the
forum state, and (2) the brunt of the effects of the actions are felt within
the forum state.’ Hyperbaric Options v. Oxyhealth, supra. . . . However,
`injury to a forum resident is not enough, and the Calder test
has not been read to authorize personal jurisdiction in a plaintiff's home
forum in the absence of “something more” to demonstrate that the defendant
directed this activity toward the forum state.’ Hyperbaric Options v.
Oxyhealth, supra. . . .
Binion v. O’Neal, supra.
The judge then found that in this case, Binion could not
establish that O'Neal's posts
were `expressly aimed for dissemination’ in Michigan. Nor is there any
allegation that O'Neal took affirmative steps to direct the posts to a Michigan
audience. Instead, O'Neal's posts were meant for a national or even
international audience. Here, the only connection to Michigan is Plaintiff's
injury. This, without `something more’ is insufficient to establish personal
jurisdiction over O'Neal under the `effects’ test.
Binion v. O’Neal, supra.
Binion argued, in attempting to establish that the court did
have personal jurisdiction over O’Neal, that O’Neal
has several business contacts in
Michigan that render him subject to personal jurisdiction in the state. [Binion]
says O'Neal has organized comedy performances at local theaters, owns
restaurant franchises and other business interests in Michigan, and endorses or
has endorsed many products that are distributed in Michigan. [Binion] also says
O'Neal's posts were part of his multimedia campaign to promote his own brand
image. [Binion] suggests that such questions should survive O'Neal's motion to
dismiss and proceed to jurisdiction-related discovery.
Binion v. O’Neal, supra.
The judge did not agree, holding that the arguments
were
unavailing. Although O'Neal may
have several business connections to Michigan, [Binion] cannot show that his
cause of action arises from O'Neal's activities here. [Binion] was not injured
by O'Neal's business dealings in the state, and [his] cause of action is
independent of any such business connection. Therefore, [Binion] has not
established a sufficient factual basis to support the exercise of personal
jurisdiction over O'Neal.
Binion v. O’Neal, supra.
The judge therefore dismissed Binion’s lawsuit. Binion
v. O’Neal, supra. Binion can re-file the suit in a court in a state in which O’Neal (and the
other defendants) are subject to personal jurisdiction. Binion
v. O’Neal, supra.
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