Morningside Church, Inc. v. Rutledge

9 F.4th 615

MORNINGSIDE CHURCH, INC.; Morningside Church Productions, Inc. ; Jim Bakker, Plaintiffs - Appellants

v.Leslie RUTLEDGE, Attorney General for the State of Arkansas; Kimberly R. H. Lewis, District Attorney for the County of Merced, California ; Tori Verber Salazar, District Attorney for the County of San Joaquin, California; Mike Feuer, City Attorney for the City of Los Angeles, California, Defendants - Appellees

No. 20-2954

United States Court of Appeals, Eighth Circuit.

Submitted: June 17, 2021

Filed: August 12, 2021

Rehearing and Rehearing En Banc Denied September 20, 2021

Counsel who presented argument on behalf of the appellants and appeared on the brief was Derek A. Ankrom, of Springfield, MO. The following attorney(s) also appeared on the appellants’ brief; Jeremiah W. (Jay) Nixon, of Saint Louis, MO, Arsenio Lenell Mims, of Saint Louis, MO, Benjamin J. Shantz, of Springfield, MO.

Counsel who presented argument on behalf of the appellee Mike Feuer and appeared on the brief was Jonathan H. Eisenman, of Los Angeles, CA.

Counsel who presented argument on behalf of the appellee Leslie Rutledge and appeared on the brief was Vincent P. France, AAG, of Little Rock, AR.

Counsel who presented argument on behalf of the appellees Kimberly R.H. Lewis and Tori Verber Salazar and appeared on the brief was Samuel Edward Hofmeier, of Kansas City, MO. The following attorney(s) also appeared on the appellees’ brief; James D. Lawrence, of Kansas City, MO.

Before LOKEN, KELLY, and ERICKSON, Circuit Judges.

KELLY, Circuit Judge.

The plaintiffs here sued several out-of-state defendants in Missouri federal court, alleging that the defendants, while acting in their official capacities, violated their First, Fifth, and Fourteenth Amendment rights. The district court¹ dismissed the case for lack of personal jurisdiction, and the plaintiffs appeal. We affirm.

I.

Jim Bakker is a televangelist and the lead pastor of Morningside Church. In coordination with Morningside Church and Morningside Church Productions (collectively, Morningside), Bakker hosts the Jim Bakker Show, a nationally broadcast television program that airs Morningside Church services. Bakker is a resident of Stone County, Missouri, and Morningside Church and Morningside Church Productions are both headquartered in Stone County.

In February 2020, as the Covid-19 pandemic was beginning in the United States, Bakker and Morningside began advertising a product called Silver Solution on the Jim Bakker Show. During broadcasts, Bakker and his guests allegedly claimed that Silver Solution "has been proven by the government that it has the ability to kill every pathogen it has ever been tested on"; that it "has been tested on other strains of the coronavirus and has been able to eliminate it within 12 hours"; and that it is "patented, it works, we have tested it, it works on just about everything." Bakker explains that he sees "[e]ducating" viewers about Silver Solution and offering the product for sale as "an expression of [his and his church's] religious beliefs" and "an important religious practice of itself."

The claims about Silver Solution by Bakker and his guests soon drew scrutiny from law enforcement and regulatory bodies nationwide. On March 11, 2020, Mike Feuer, the Los Angeles City Attorney, sent a letter by email and by physical mail to the Stone County offices of the Jim Bakker Show expressing concern about how Silver Solution was being marketed to California consumers. Citing California's false advertising law, Feuer requested business records to substantiate a number of claims about Silver Solution made on the air. He explained that the letter "serve[d] as a formal demand" and that "[f]ailure to adequately substantiate the claims listed ... may result in further action."

Leslie Rutledge, the Attorney General for the State of Arkansas, was also troubled by the Silver Solution broadcasts and launched an investigation into whether Bakker and Morningside had violated Arkansas's deceptive trade practices law. On March 24, 2020, a representative from Rutledge's office sent a civil investigative demand to Bakker's address in Stone County. Rutledge requested information on the sale and marketing of Silver Solution to Arkansas consumers; records of complaints and investigations concerning Silver Solution; and a list of Bakker's social media accounts. In an accompanying letter, she explained that failure to comply with the demand could result in Rutledge "petitioning a circuit court for an order compelling ... compliance, or other such relief as permitted by law," including suspension of Bakker and Morningside's business in Arkansas.

Around May 4, 2020, Bakker and Morningside heard from a third law enforcement agency: the District Attorney's Office for the County of Merced, California, led by Kimberly Lewis. Lewis's office served a subpoena on a registered agent of Morningside Church Productions in California, alleging that it had reason to believe that Morningside had violated California's Business and Professions Code. The subpoena commanded the company to produce documents regarding the sale and marketing of Silver Solution to California consumers; the basis of claims about Silver Solution made on the Jim Bakker Show and related websites; and the company's communications with other entities that sold Silver Solution. The subpoena explained: "For failure to comply with this subpoena, you will be liable to the proceedings and penalties provided by law."

According to Maricela Woodall, the president of Morningside Church Productions, the company's counsel responded to Lewis's subpoena by calling her office. On this call, someone from Lewis's office allegedly said that the subpoena had been issued "in conjunction with a joint investigation by Lewis, Feuer, and Teri [sic] Verber Salazar, the District Attorney for the County of San Joaquin, California" and that all three offices would need to be involved in any discussion of that investigation. On May 28, 2020, Morningside's counsel had a conference call with Lewis's, Feuer's, and Salazar's offices in which Morningside sought to limit the scope of the subpoena; in Woodall's account, Lewis, Feuer, and Salazar "indicated that they would not agree to unilaterally limit the scope of the Subpoena in a way that satisfie[d] [Morningside's] Constitutional concerns."

That same month, Morningside's counsel also had a phone call with Rutledge's office, during which a representative allegedly agreed to limit the scope of the March 24 demand. The following day, Bakker and Morningside emailed a response to the demand that provided some of the information sought but objected to many of the requests. Woodall claims that this response "complied with the [demand] as limited by the agreement." On May 27, 2020, the Attorney General's Office sent Morningside and Bakker an email rejecting their objections. The office again requested the information originally identified in the demand and wrote, "If the responses are not fully received by June 12, 2020, the State will have no choice but to file a petition requesting a court order requiring Morningside and Pastor Bakker to fully answer the [demand] and an injunction against Morningside and Pastor Bakker from conducting business in Arkansas."

Bakker and Morningside did not respond to the communications from May 27 and 28. Instead, on June 5, 2020, they filed suit against Feuer, Lewis, Rutledge, and Salazar (the defendants) in the Western District of Missouri. Bakker and Morningside allege that the defendants’ investigations into Silver Solution violate their constitutional rights and that the state statutes the defendants have acted under are unconstitutional. Laying out the basis for federal jurisdiction, the complaint states:

A substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated, in Stone County, Missouri, including, inter alia , the subpoena and investigative demands at issue (a) relate to the purported conduct of Plaintiffs in Stone County, Missouri, (b) were served or delivered to one or more Plaintiffs in Stone County, Missouri, (c) purport to compel conduct of Plaintiffs in Stone County, Missouri, and (d) seek documents, writings, communications, and electronically stored information and data that are situated in Stone County, Missouri.

In response to this complaint, the defendants moved to dismiss the case for lack of personal jurisdiction.² The district court granted their motion, and Bakker and Morningside now appeal.

II.

We review the district court's decision on personal jurisdiction de novo. Pederson v. Frost, 951 F.3d 977, 979 (8th Cir. 2020). "The plaintiffs bear the burden of establishing a prima facie showing of jurisdiction, and we view the evidence in the light most favorable to the plaintiffs." Whaley v. Esebag, 946 F.3d 447, 451 (8th Cir. 2020).

Because Bakker and Morningside acknowledge that the defendants are not subject to general personal jurisdiction in Missouri, the issue here is whether the district court had specific personal jurisdiction. "A district court may exercise specific jurisdiction over an out-of-state defendant only to the extent permitted by the state's long-arm statute and the Constitution's due process clause." Federated Mut. Ins. Co. v. FedNat Holding Co., 928 F.3d 718, 720 (8th Cir. 2019). For the purposes of this appeal, we will assume that the defendants fell under Missouri's long-arm statute by "commi[tting] a tortious act within" the state. Mo. Rev. Stat. § 506.500.1(3). "Our task, then, is to determine whether the exercise of personal jurisdiction comports with due process." Henry Law Firm v. Cuker Interactive, LLC, 950 F.3d 528, 532 (8th Cir. 2020) ; see also Eagle Tech. v. Expander Ams., Inc., 783 F.3d 1131, 1136 (8th Cir. 2015) ("Because the Missouri long-arm statute authorizes the exercise of jurisdiction over non-residents to the extent...