Charles Harder Loses Again: You Can't Just File Defamation Lawsuits In A Random State Because You Like Its Statute Of Limitations

from the sorry-charles dept

As you may know, Charles Harder is the lawyer behind the lawsuit Shiva Ayyadurai filed against us, so feel free to view everything we say here through that prism. Last week, of course, the judge in our case dismissed the case against us, noting that everything we said was clearly protected by the First Amendment. But that wasn't Harder's only loss of the week. Eriq Gardner points out that he also lost a case he filed against The Deal.

That case had been filed a couple months before our lawsuit, in federal court in New Hampshire. It was filed on behalf of Scottsdale Capital Advisors, a company based in Arizona, and one of its execs, the Nevada-based John Hurry, against the Delaware-registered and New York-based "The Deal" and one of its reporters, the California-based William Meagher. Now, you may wonder why this lawsuit was filed in New Hampshire, seeing as none of the states above include "New Hampshire." And, indeed, the court was wondering that too, because it dismissed the case over this bit of weird venue shopping:

Scottsdale has failed to establish that defendants have the minimum contacts with New Hampshire required for this court to exercise personal jurisdiction over them in this action consistent with the Fourteenth Amendment’s due process clause. Specifically, the plaintiffs have not demonstrated that their claims are related to the defendants’ forum-based activities or that the defendants purposefully contacted New Hampshire such that they could expect to answer for their actions here.

So, why file in New Hampshire? Here's a hint:

  • Statute of limitations for defamation lawsuits in New York: One Year
  • Statute of limitations for defamation lawsuits in Delaware: Two Years
  • Statute of limitations for defamation lawsuits in California: One Year
  • Statute of limitations for defamation lawsuits in Arizona: One Year
  • Statute of limitations for defamation lawsuits in Nevada: Two Years
  • Statute of limitations for defamation lawsuits in New Hampshire: Three Years
Which one of those is not like the others?

The articles at issue in the lawsuit were published on December 6, 2013, March 20, 2014 and April 16, 2014. The lawsuit was filed on November 18, 2016. In other words, the lawsuit was filed over two years after the publication of the articles, and thus any state with a one-year or two-year statute of limitations -- including all of the states connected to the various parties -- would not have worked. New Hampshire, however, has that lovely three year statute of limitations.

The ruling then details the rather extraordinary effort that Scottsdale's lawyers put into trying to argue that New Hampshire is the right place to hear a case when none of the parties is actually in New Hampshire. In short, the argument appears to be that Dartmouth, a college based in New Hampshire, has a subscription to The Deal, and therefore it's published in New Hampshire. And also, The Deal tried to get Dartmouth to renew its subscription, and thus it "conducted business" in New Hampshire. The court is... not impressed for a variety of reasons.

At the time it published Meagher’s articles, and in the time since, The Deal has had only one subscriber in New Hampshire -- Dartmouth College. According to The Deal’s records, no user accessed these three articles through the Dartmouth subscription. Nor did either of the two users of the Dartmouth subscription who had signed up to receive “The DealFlow Report” at the time the articles were published open the attachments containing links to the March 25 or April 22 articles; and no evidence suggests either opened the attachment containing a link to the December 10 article. Indeed, according to data collected through Google Analytics, not a single user who read these articles through The Deal’s online portal was located in New Hampshire.

Because no evidence suggests that anyone in New Hampshire -- Dartmouth-affiliated or otherwise -- viewed the three allegedly-defamatory articles, the plaintiffs focus on other contacts between The Deal and Dartmouth. For example, The Deal solicited Dartmouth’s subscription, and renewals thereof, through emails and telephone calls specifically directed at Dartmouth. Furthermore, during the time period between January 1, 2013 and June 2017, 81 individuals were registered to use The Deal’s online portal under Dartmouth’s subscription. Approximately 30 to 40 students each year were permitted to access The Deal’s online portal via IP authentication (that is, without entering a log-in name or password). The Deal registered a total of 7,232 “sessions” by Dartmouth users visiting its online portal during this time period. The Deal also communicated directly with between 32 and 48 individuals at Dartmouth by email during this time, including regular circulation of “The DealFlow Report” to the two Dartmouth-affiliated individuals who had signed up for it.

But, the court notes that's not nearly enough to make New Hampshire the proper venue:

First, the circulation of the allegedly-defamatory articles in New Hampshire is negligible.... (“The size of a distribution of offending material helps determine whether a defendant acted intentionally.”). Though some 7,000 members of the Dartmouth community theoretically had access to The Deal Pipeline, the plaintiffs do not dispute the defendants’ representation that only 30 users were signed up to use that subscription to access The Deal’s online portal at the time the articles were published, and that only two users actually received an email newsletter containing active links to the articles. Such “thin distribution may indicate a lack of purposeful contact,” and it appears to do so here....

Regardless of the number of individuals who could have accessed the offending articles through Dartmouth’s subscription to The Deal Pipeline, the evidence presented suggests that none did. Unlike in Keeton and Calder, where New Hampshire residents read the allegedly libelous statements, presumably, damaging the plaintiffs’ reputations, Scottsdale’s reputation in New Hampshire cannot be impacted by the statements allegedly published in New Hampshire if no one in New Hampshire saw the statements.

The court also notes that there's a strong appearance that the lawsuits were filed to create a burden on the reporter, Meagher:

The defendants’ burdens of appearing in New Hampshire and the inconvenience to the plaintiffs weigh somewhat against finding jurisdiction here. While that burden on The Deal, a corporate defendant located in New York, is not heavy, the burden on Meagher, an individual residing in California, may be. Ticketmaster-N.Y., 26 F.3d at 210 (“The burden associated with forcing a California resident to appear in a Massachusetts court is onerous in terms of distance . . . .”);....

“As the First Circuit has explained, however, the ‘burden of appearance’ factor is important primarily because ‘it provides a mechanism through which courts may guard against harassment.’” R&R Auction Co., LLC v. Johnson, 2016 DNH 40, 23 (Barbadoro, J.) (quoting Ticketmaster-N.Y., 26 F.3d at 211). This is not the first action that Scottsdale has brought against the defendants for defamation. In May 2016, Scottsdale sued the defendants in New York, where The Deal is located. It withdrew that action on the eve of the deadline for defendants’ motion to dismiss, forcing the defendants to incur the expense of drafting that motion unnecessarily, and then filed this action in New Hampshire. Scottsdale also sued FINRA in Arizona over its investigations of Scottsdale. The defendants here suggest that “the Plaintiffs’ primary strategic purpose” for bringing both the New York and New Hampshire actions “was to coerce Defendants into revealing the identity of Mr. Meagher’s confidential source in the hopes that this information would bolster their case against FINRA in Arizona.” Scottsdale does not deny -- nor even address -- this allegation in its objection and did not do so at oral argument. This factor, therefore, weighs heavily against the reasonableness of this court finding personal jurisdiction.

This ruling also comes the day after another Charles Harder lawsuit was filed in New York. Again, there, we noted that there were serious statute of limitations questions.

In a profile of Charles Harder published in the Hollywood Reporter last year, it was noted that Harder is well aware of the differences in state laws over defamation:

In his offices, Harder keeps charts mapping the differences in libel and privacy laws throughout the country. He also has become a pro on where to strategically file cases.

It appears that at least some courts are not impressed with the "strategy" behind where Harder files his cases.


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • icon
    Ehud Gavron (profile), 13 Sep 2017 @ 7:30pm

    Charles Harder should work a little smarter

    It's sad to see someone whose spent 12 years in basic academia, 4 years in college, 4 years L1-L4, got his JD, got admitted by the bar, studied up on law in many jurisdictions...

    ...use his powers for evil.

    Try smarter, Charles, not harder.

    E

    reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 14 Sep 2017 @ 8:39am

      Re: Charles Harder should work a little smarter

      Well, as Prenda learned the hard way, when you use shady tactics you'll eventually get called and punished by it. Harder should stop while he hasn't lost everything.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 14 Sep 2017 @ 10:05am

        Re: Re: Charles Harder should work a little smarter

        If he does stop my popcorn futures are going to be worth as much as a share of Righthaven copyright.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Sep 2017 @ 12:04pm

      Re: Charles Harder should work a little smarter

      Try smarter, Charles, not harder.

      I disagree. Try Harder... for fraudulent business practices.

      reply to this | link to this | view in chronology ]

  • icon
    TechDescartes (profile), 14 Sep 2017 @ 8:00am

    That's Not Technically Correct

    Scottsdale’s reputation in New Hampshire cannot be impacted by the statements allegedly published in New Hampshire if no one in New Hampshire saw the statements.

    No one in New Hampshire saw the statements...until Charles Harder brought a lawsuit in New Hampshire ensuring that they would see the statements.

    reply to this | link to this | view in chronology ]

  • icon
    Roger Strong (profile), 14 Sep 2017 @ 10:02am

    "A man who is his own lawyer has a fool for his client."

    Given the Ayyadurai case, the "International" vs. Jezebel case and now this one, Charles Harder is providing some serious competition for "his own lawyer."

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Sep 2017 @ 12:12pm

      Re:

      There's a guy in Canada who got a fake law degree from a diploma mill, got tried and convicted for two counts of fraud and one count of uttering forged documents.

      He represented himself in court, and is appealing on the grounds that, according to this CBC article:

      instead of representing himself in court, he should have had an actual lawyer with better knowledge of the Canadian criminal justice system.

      I cannot fathom the lack of self-awareness that would cause someone, when appealing their conviction for having represented people in court as a fake lawyer, to use as one of their arguments "Y'know, maybe when people go to court, they should have a real lawyer."

      The utter chutzpah needed to make that argument overwhelms me.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Sep 2017 @ 10:06am

    This guy has taken so many L's recently he's going to need to start referring to himself as a LLLLawyer.

    reply to this | link to this | view in chronology ]

  • icon
    DannyB (profile), 14 Sep 2017 @ 10:15am

    It's NOT a Random State

    It is a well considered, carefully chosen state, in order to maximize costs, in violation of FRCP, gain maximum advantage, and cause maximum probability of an out of court settlement. Or just out of spite.

    reply to this | link to this | view in chronology ]

  • identicon
    Mason Wheeler, 14 Sep 2017 @ 10:43am

    I've been making my way through the Techdirt podcast back catalog, and I was recently listening to one where they talked about different states having different laws being a good thing, as it's "the laboratory of democracy" where you can figure out what works. They talked about a few counter-arguments to this idea as well, but no one brought up this one.

    It's good to see that the judge saw through it, at least.

    reply to this | link to this | view in chronology ]

  • identicon
    Jordan Chandler, 14 Sep 2017 @ 10:54am

    Lawyers

    It took a long time for me to realize that Lawyers are mercenaries of the law. They care not for right and wrong, good or bad, or justice. They only care for what they can get away with due to their unique interpretation of the law. Perhaps this dude once had high aspirations, but now he's basically everything wrong with American society, and I hope he never gets to enjoy the fruits of his labor.

    reply to this | link to this | view in chronology ]

    • identicon
      Thad, 14 Sep 2017 @ 2:10pm

      Re: Lawyers

      Let's not paint all lawyers with a broad brush. After all, in every suit where Charles Harder represents the plaintiff, there are lawyers representing the defense, too.

      reply to this | link to this | view in chronology ]

  • identicon
    AricTheRed, 14 Sep 2017 @ 11:00am

    I guess...

    ... part of the strategy should be likelihood of winning, not simply possibility of winning, in NH.

    It's like running for president.


    BTW I'm getting tired of all of this winning.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonmylous, 14 Sep 2017 @ 11:38am

    So in summation....

    I guess the Judge could be paraphrased as saying "What do think this is, East Texas?"

    reply to this | link to this | view in chronology ]

  • icon
    Jeffrey Nonken (profile), 14 Sep 2017 @ 11:47am

    This lawyer is going to have to Charles Harder in a John Hurry to win this Meagher case...

    These jokes write themselves! But that's OK, PETA will be along shortly to claim to be their "friend" and claim copyright.

    reply to this | link to this | view in chronology ]

  • icon
    Derek (profile), 14 Sep 2017 @ 12:01pm

    Nerd harder

    In his offices, Harder keeps charts mapping the differences in libel and privacy laws throughout the country

    Sounds like a libel nerd. He needs to nerd harder...

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 14 Sep 2017 @ 6:40pm

    T-shirt?

    I'm sure he could win a case if only he would "Lawyer Harder".

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Insider Shop - Show Your Support!

Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.