Rios v. Fergusan

978 A.2d 592

51 Conn.Sup. 212

Stacy Elena RIOS v. Christopher FERGUSAN.

No. FA-08-4039853S.

Superior Court of Connecticut, Judicial District of New Haven.

December 3, 2008.

Stacy Elena Rios, pro se, the plaintiff.

FRAZZINI, J.

The Internet has transformed our ways of communicating and sharing information, but content on the Internet that some find offensive or harmful has also created new and challenging issues. Everyday the news brings reports about users posting controversial or disturbing content on social networking Internet sites such as MySpace, Facebook and YouTube that are accessible worldwide. This case asks whether a person who is threatened with physical harm by an Internet posting can obtain judicial relief in the form of a restraining order to protect her from the threatened harm. More precisely, it presents the issue of whether a Connecticut court has jurisdiction to enter a restraining order under General Statutes § 46b-15¹ against a North Carolina resident who created and disseminated a recording on the Internet on YouTube threatening a resident of this state with physical harm. Although courts in this state and beyond have repeatedly wrestled in recent years with jurisdictional issues in cases involving the Internet,² the extension of jurisdiction to threatening behavior communicated over the Internet on YouTube is apparently an issue of first impression. For the reasons stated, the court finds that it has personal jurisdiction for purposes of entering such an order. The restraining order previously granted on a temporary and provisional basis is granted for six months, subject to further extension as available at law.³

On September 16, 2008, the applicant, Stacy Elena Rios, filed an application for a restraining order under § 46b-15 against Christopher Fergusan, a resident of North Carolina who is the father of her four year old child. An ex parte restraining order was granted by the court, which scheduled a hearing for two weeks hence. On September 30, the applicant appeared for the hearing, but, no service having been made on the respondent, the court heard brief testimony and then continued the ex parte order for three weeks to give Rios additional time to serve Fergusan. She appeared again on October 21, when she presented satisfactory proof of personal service on Fergusan in North Carolina by a process server authorized to serve him there, although he was not in court that day. The court then heard additional evidence and found that Fergusan had subjected Rios to a continuing threat of present physical harm to her. The evidence established that Fergusan has threatened her with physical violence in the past and that she resided for a while in North Carolina but left there and returned to Connecticut earlier this year after which he posted a video on YouTube in which he brandished a firearm in a rap song in which he states that he wants to hurt the applicant, to shoot her and to "put her face on the dirt until she can't breathe no more." He temporarily took the video off YouTube but then placed another video there that again threatened her. Concerned about the court's jurisdiction over Fergusan, however, the court granted the restraining order application for an additional unspecified temporary interval while the court considered the issue.

An application for relief from abuse pursuant to § 46b-15 is a civil action. Although the courts of several states have held that restraining orders may be issued without personal jurisdiction over a respondent,⁴ the Connecticut restraining order statute explicitly requires a finding of personal jurisdiction for such an order. Section 46b-15(e) provides in relevant part that "[e]very order of the court made in accordance with this section after notice and hearing shall contain the following language: `This court had jurisdiction over the parties and the subject matter when it issued this protection order.' ..." (Emphasis added.) General Statutes § 46b-15(e). The court, therefore, must have personal jurisdiction over the respondent to issue a restraining order after notice and hearing. In determining whether personal jurisdiction can be exercised over a nonresident defendant, "[the court] must first decide whether the applicable state long-arm statute authorizes the assertion of jurisdiction over the [defendant]. If the statutory requirements [are] met, its second obligation [is] then to decide whether the exercise of jurisdiction over the [defendant] would violate constitutional principles of due process." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. at 505, 514-15, 923 A.2d 638 (2007).

The Connecticut long arm statute that is applicable to § 46b-15 is codified in General Statutes § 52-59b(a), which provides in relevant part: "As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident individual ... who in person or through an agent: (1) Transacts any business within the state; (2) commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; (3) commits a tortious act outside the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if such person or agent (A) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (B) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; (4) owns, uses or possesses any real property situated within the state; or (5) uses a computer ... or a computer network ... located within the state."

The portions of § 52-59b most likely to be applicable in the present case are subsections (a)(2)—committing a tortious act within the state, and (a)(3)—engaging in a persistent course of conduct.⁵ Under § 52-59b(a)(2) the court can exercise personal jurisdiction over a nonresident individual who "commits a tortious act within the state ...." General Statutes § 52-59b(a)(2). Several Connecticut courts have held that a nonresident "commits a tortious act within the state" for purposes of § 52-59b(a)(2) by sending a communication whose content may be considered tortious directly into Connecticut. See, e.g., Horniatko v. Riverfront Associates, LLC, Superior Court, judicial district of Hartford, Docket No. CV-04-4000332, 2005 WL 1671543 (June 21, 2005) (Shapiro, J.) (39 Conn. L. Rptr. 566) (allegation that defendants made solicitation telephone calls to plaintiffs in Connecticut satisfies § 52-59[a][2]); Doe One v. Oliver, Superior Court, judicial district of Waterbury, Docket No. CV-99-0151679, 2003 WL 21235402 (May 19, 2003) (Dubay, J.) (34 Conn. L. Rptr. 634) (allegation that a defendant sent e-mail containing offensive statements to recipients in Connecticut satisfies § 52-59b[a][2]); Oppenheim v. Erwin, Superior Court, judicial district of New Haven, Docket No. CV-00-0441611, 2001 WL 419236 (April 10, 2001) (Licari, J.) (29 Conn. L. Rptr. 562) (allegation defendants sent threatening letter to plaintiff in Connecticut satisfies § 52-59b[a][2]).⁶

In Knipple v. Viking Communications Ltd., 236 Conn. at 602, 610, 674 A.2d 426 (1996), the Supreme Court held that "[f]alse representations entering Connecticut by wire or mail constitute tortious conduct in Connecticut under [General Statutes] § 33-411(c)(4),"⁷ now General Statutes § 33-929(f)(4). "Although in that case the court was addressing the issue of personal jurisdiction under General Statutes § 33-411(c)(4), it cited with approval David v. Weitzman, 677 F.Supp. 95, 98 (D.Conn.1987), in which the District Court held that the transmission of fraudulent misrepresentations into Connecticut by mail or telephone was `tortious conduct in Connecticut sufficient to establish personal jurisdiction under Connecticut's long-arm [statutes], §§ 33-411(c)(4) and 52-59b(a)(2).'" (Emphasis in original.) Oppenheim v. Erwin, supra, 29 Conn. L. Rptr. at 564. The Supreme Court's citation of David v. Weitzman, supra, at 95, indicates that it would probably construe § 52-59b(a)(2) the same way that it has construed § 33-411(c)(4). See Oppenheim v. Erwin, supra, at 564; Cody v. Ward, 954 F.Supp. 43, 46 (D.Conn.1997). This court concludes, therefore, that a nonresident defendant does not need to be physically present in Connecticut at the time of the commission of the alleged tortious act for him to have "commit[ted] a tortious act within the state" for purposes of § 52-59b(a)(2).

Unlike the letter or e-mail cases, however, "[a]n internet posting ... is not `sent' anywhere in particular, but rather can be accessed from anywhere in the world ...." (Emphasis added.) Dailey v. Popma, 662 S.E.2d 12, 19 (N.C.App.2008). There is no Connecticut authority addressing the exercise of personal jurisdiction over nonresident individuals premised on Internet postings. "Courts in other jurisdictions, [however], when confronted with jurisdictional questions in the context of posting messages upon ... a listserve or newsgroup, have concluded that the mere posting of messages upon such an open forum by a resident of one state that could be read in a second state was not sufficient to confer jurisdiction upon the latter." Goldhaber v. Kohlenberg, 395 N.J.Super. 380, 387, 928 A.2d 948 (App.Div.2007).

In Young v. New Haven Advocate, 315 F.3d 256 (4th Cir.2002), cert. denied, 538 U.S. 1035, 123 S.Ct. 2092, 155 L.Ed.2d 1065 (2003), the court considered this issue in an action by the warden of a Virginia prison that by contract housed Connecticut prisoners to alleviate overcrowding in this state. The warden claimed that certain Connecticut newspapers had posted libelous articles on their Internet sites. The court exa...