M. Groo v. 11th Judicial District

2023 MT 193

Opinion

10/11/2023

OP 22-0587 Case Number: OP 22-0587

IN THE SUPREME COURT OF THE STATE OF MONTANA

2023 MT 193

MELISSA GROO,

Petitioner,

v.

MONTANA ELEVENTH JUDICIAL DISTRICT COURT, HON. AMY EDDY, Presiding,

Respondent.

ORIGINAL PROCEEDING: Petition for Writ of Supervisory Control In and For the County of Flathead Cause No. DV-22-087(A) Honorable Amy Eddy, Presiding Judge

COUNSEL OF RECORD:

For Petitioner:

David B. Cotner (argued), Brian T. Geer, Cotner Ryan Law, PLLC, Missoula, Montana

For Plaintiffs Triple D. Game Farm, Inc., Lorney “Jay” Deist, and Kimberly Deist:

Kris A. McLean (argued), Tyson A. McLean, Jordan A. Pallesi, Kris A. McLean Law Firm, PLLC, Missoula, Montana

Argued: March 31, 2023 Submitted: April 4, 2023 Decided: October 11, 2023

Filed:

r-GtA•-if __________________________________________ Clerk Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 This matter comes before the Court on a Petition for Writ of Supervisory Control

filed by Melissa Groo (Groo). Groo asks this Court to exercise supervisory control,

pursuant to M. R. App. P. 14(3), over the Montana Eleventh Judicial District Court, and to

conclude that the District Court’s order of July 22, 2022, denying Groo’s Motion to

Dismiss, was in error.

¶2 The underlying case arises from Groo’s purposeful and substantial use of social

media to affect the business operations of Triple D Game Farm, Inc. (Triple D). In

response, Triple D filed a Complaint and Demand for Jury Trial alleging Tortious

Interference with Contractual Relations and Tortious Interference with Prospective

Economic Advantage claims against Groo.

¶3 Groo moved to dismiss the claims against her for lack of personal jurisdiction. She

contends that the statements she allegedly made on social media about Triple D did not

create the minimum contacts with Montana as a forum nor constitute purposeful availment

of the protections afforded by Montana law—both of which are required for a Montana

court to exercise personal jurisdiction over an out-of-state defendant. The District Court

held that the tort claims accrued in Montana because Groo’s Facebook posts and messages

identified Plaintiffs and tagged Montana residents and that bringing Groo before Montana

courts would comport with the Fourteenth Amendment’s Equal Protection Clause.

2 ¶4 We accept supervisory control and restate the issue as follows:

Does Montana have specific personal jurisdiction over Groo regarding Triple D’s intentional tort claims when the tortious activity allegedly accrued in Montana despite Groo only interacting with the forum via social media?

¶5 We conclude Montana has specific personal jurisdiction over Groo in this case and

accordingly affirm the District Court’s order.

FACTUAL AND PROCEDURAL BACKGROUND

¶6 Around 1977, Triple D began operations as a wildlife photography farm in Flathead

County, Montana. Lorney “Jay” Deist (Deist) and his spouse, Kimberly Deist, operate the

business. Triple D uses Facebook to promote its business to its approximately 21,000

followers.

¶7 In 2011, Triple D hired Heather Keepers (Keepers) as an animal trainer. In July

2020, Keepers resigned for personal reasons. In August 2020, Keepers corresponded with

a Triple D client, B.M., and recounted a story of poor animal welfare at the farm. Keepers

then acted on B.M.’s suggestion that she contact Groo about the alleged maltreatment.

¶8 Groo is an expert in the field of ethics in wildlife photography. She has received

numerous awards for her contributions to the field and has published manifold articles on

the topic in popular outlets, such as Outdoor Photographer. Groo has openly, repeatedly,

and vehemently criticized photography game farms in her articles. She is a citizen and

resident of the State of New York. Her only physical connections to Montana in the last

five years include four short-term trips to the state.

3 ¶9 In August 2020, Keepers, while outside of Montana, used Facebook Messenger to

contact Groo, who also was not physically present in the state. Keepers sent the following

message:

Hello Melissa. As I am not a big fan of yours, this message is difficult for me to send. But someone mentioned your name yesterday when I filled them in in [sic] some information. And I got to thinking. While you and I are not friends, we do have a common enemy....for slightly different reasons, but also for many of the same. Triple D.

My time spent there was heaven and hell all wrapped in one. I loved those animals more than anyone could love anything. And I gave them the best I could with what I was provided with. I worked there for 9 years under the false pretense that I would soon be taking it over. I held onto that idea Bc I wanted to change so much of what it was. And is. Many things you are wrong about but many things you are right about.

I will not disclose any information to you yet. Other than I have ENDLESS information and evidence and knowledge of evidence of many things. Illegal, unethical, and just absolutely morally wrong and dishonest.

My goal in reaching out to you is simple. Those animals need to be “saved” from Jay Deist. Those animals deserve so much better. And especially now that I’m not there to provide half of what they deserve, a lot of them are now just sitting and rotting. Some have even died suddenly since I left. (I left July 9). I am obviously desperate to save them. And well....it’ll take someone who hates the Triple D as much as I do to do that. And I don’t mean some animals and then Jay can get more. I mean ALL animals. And his operation stops entirely. Forever.

Is this something that interests you?

¶10 Groo responded to Keepers less than an hour later. Groo wrote:

Absofuckinglutely.

You are writing me at a very opportune time. i would love to get your help on taking him down. The things that I have uncovered from lots of research haunt me more than you can know. Or maybe you can know. I know we have clashed in the past, but if your first concern is the animals, we have that in common, and that is HUGE. Let’s try to collaborate to make a better future 4 for them. I am incredibly grateful you reached out. I know how terribly difficult it must be.

In advance of us speaking more, I want you to know that i am sorry if you feel attacked by me. It’s just that I was horrified by what I had learned about Jay Deist and the fate of many of the animals, and you were the very public face of Triple D. So you got my anger. I felt you were complicit. But now I see you were not. And that you really do care. I’m sor [sic] sorry to have misjudged you.

I can’t tell you how grateful I am to hear from you. I have a very special opportunity for you to speak out and to help make a big change but I can't say more about it now. Let’s figure out how to move forward on this. I am away from home right now, and short on time, but will be back home as of this weekend.

I seriously want to weep with gratitude.

I want very much for Triple D and all game farms to be done. i am with you 200%.

¶11 About an hour later, Keepers responded:

Perfect. Look forward to talking.

Disclaimer: my biggest hesitation is that I signed a nondisclosure agreement upon employment. (Who tf has animal professionals sign a nondisclosure???) Anyway. I’d lose every penny from here on out if it meant ridding him of any and all animals now and future. But I’d rather not get sued. I’m not sure the total legality of everything. But I am working on understanding it.

¶12 Later, Groo emailed Keepers:

Heather, I was just doing some reading, and in advance of our talking, thought you might like to look over this info too:

When an NDA can be broken: [link to website]

Animal Welfare Act enforcement: [link to website]

For violations of Endangered Species Act (which might just apply to the leopards?) [link to website] 5 You are probably way ahead of me on this, but in case it’s helpful!

I also wanted to mention that I am well connected to many kinds of folks we could seek out to help guide you. I know animal lawyers, am friends with Dan Ashe who was head of USFWS for years, I know a Montana FWP legal counsel, and am friends with the folks that lead captive wildlife programs at leading animal conservation and welfare orgs. So just know there is lots of support out there for you if you want it and I can help you connect to your choice.

M.

¶13 Following this initial exchange with Keepers, Groo used Facebook to share content

pertaining to Triple D and to encourage other users to take explicit actions intended to

affect Triple D. On August 6, 2020, Groo shared an article from Roadsidezoonews.org

titled “Photography game farm Triple D Wildlife cited 6 times for keeping animals in

squalor.” Her post included the following comment: “More on Triple D photo game farm.

What a disgrace to treat these magnificent animals so poorly. It’s time for these wildlife

brothels to be done. Photo by Susan Fox from a visit years ago to Triple D. Please share.”

¶14 Importantly, between August 2–4, 2021, Groo again used Facebook to share

information about Triple D and to direct users to take action that would affect Triple D’s

operations. In that three day period, Groo repeatedly shared a similar message—“I hope

very much that those photographers/artists and companies listed as holding regular or

future workshops there would cancel them immediately. It would be unconscionable to

continue to support this facility”—and, within those messages, tagged various Triple D

6 clients and group leaders.1 (Emphasis added.) Approximately one-quarter of the

individuals and companies tagged by Groo were located in Montana. Others tagged were

not located in Montana, but had ongoing contracts with Triple D that were executed, and

to be performed in, Montana.2

¶15 Triple D alleges that Groo’s social media posts had a detrimental impact on their

business in Montana.

¶16 On January 25, 2022, Triple D filed a Complaint and Demand for Jury Trial alleging

Tortious Interference with Contractual Relations and Tortious Interference with

Prospective Economic Advantage claims against Groo.

1 “A tag is a special kind of link. When you tag someone, you create a link to their timeline. The post you tag the person in may also be added to that person’s timeline. For example, you can tag a photo to show who’s in the photo or post a status update and say who you’re with. If you tag a friend in your status update, anyone who sees that update can click on your friend’s name and go to their timeline. Your status update may also show up on that friend’s timeline.” Tagging on Facebook, National Center of State Courts, https://perma.cc/7B3G-ZF8Y. See also Majumdar v. Fair, 567 F. Supp. 3d 901, 911 (N.D. Ill. 2021) (stating that tagging someone is akin to sending them a public letter, which strengthens the argument that it is a substantial contact with the forum allowing personal jurisdiction). 2 The Dissent emphasizes that we base our decision on only three tags of Montana residents posted to a national forum that also targeted residents of eight other states. See, e.g., Dissent, ¶ 68. First of all, we do not decide today whether tagging three Montana residents would be enough for a tort to accrue within Montana when other states’ residents are tagged that have no connection to Montana. The Dissent mischaracterizes the rest of the tags when it says “there is simply no record evidence that any of the other persons tagged were actually doing business with Triple D.” Dissent, ¶ 70. The post itself belies this argument. The post was targeted so that every individual tagged was either a Montana resident or one doing business in Montana with Triple D. Other record evidence supports that each of these tags were directed to Montana residents or those doing business with Triple D. The complaint alleges that Groo directly listed “client group leaders” in the posts, all of whom had contracts with Triple D. The Deist affidavits similarly support this. Further, as shown above in footnote one, the Dissent gets it wrong when it says only three Montanans were targeted. See Dissent, ¶ 70. Any Facebook friends of those residents also would have seen the post through that person’s timeline. 7 ¶17 On April 18, 2022, Groo filed a Motion to Dismiss pursuant to M. R. Civ. P. 12(b)(2)

and 12(b)(6)—alleging lack of personal jurisdiction and failure to state a claim upon which

relief can be granted, respectively.

¶18 On July 22, 2022, following oral argument, the District Court denied Groo’s Motion

to Dismiss in all respects. The court concluded that “Groo’s social media campaign

resulted in the accrual within Montana of Triple D’s claims against her, and Montana’s

long-arm statute applies.” The court also determined that Groo had the requisite minimum

contacts with Montana and that the court’s exercise of personal jurisdiction over Groo

comported with due process.

¶19 On October 13, 2022, Groo filed a Petition for Writ of Supervisory Control with

this Court. On December 22, 2022, we ordered additional briefing from the parties, and

on March 31, 2023, conducted an oral argument.

STANDARD OF REVIEW

¶20 This Court has supervisory control over Montana courts. Mont. Const. art. VII,

§ 2(2); Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 2019 MT 115, ¶ 5, 395 Mont. 478,

443 P.3d 407, aff’d, 141 S. Ct. 1017 (2021). Supervisory control is an extraordinary

remedy that we exercise on a case-by-case basis. Ford Motor Co., ¶ 5 (citing M. R. App. P.

14(3)). We will assume supervisory control over a district court to direct the course of

litigation if the court is proceeding based on a mistake of law, which if uncorrected, would

cause significant injustice for which appeal is an inadequate remedy. Simms v. Mont.

Eighteenth Jud. Dist. Ct., 2003 MT 89, ¶ 18, 315 Mont. 135, 68 P.3d 678.

8 ¶21 This Court reviews a personal jurisdiction ruling de novo. Tackett v. Duncan,

2014 MT 253, ¶ 16, 376 Mont. 348, 334 P.3d 920. In considering the motion, all

well-pleaded allegations in the complaint are taken as true and construed in the light most

favorable to the plaintiff. Meagher v. Butte-Silver Bow City-County, 2007 MT 129, ¶ 13,

337 Mont. 339, 160 P.3d 552. Additionally, affidavits and other evidence may be

considered in a motion to dismiss for lack of personal jurisdiction. Jackson v. Kroll,

Pomerantz & Cameron, 223 Mont. 161, 165, 724 P.2d 717, 720 (1986).

DISCUSSION

¶22 Issue: Does Montana have specific personal jurisdiction over Groo regarding Triple D’s intentional tort claims when the tortious activity allegedly accrued in Montana despite Groo only interacting with the forum via social media?

¶23 A court may exercise personal jurisdiction over the parties in a proceeding pursuant

to general (all-purpose) or specific (case-linked) personal jurisdiction. DeLeon v. BNSF

Ry. Co., 2018 MT 219, ¶ 7, 392 Mont. 446, 426 P.3d 1. Both parties agree that Groo is not

subject to general personal jurisdiction in Montana. Whether the District Court can

exercise personal jurisdiction over Groo hinges on the scope of specific personal

jurisdiction.

¶24 Specific personal jurisdiction exists only where two elements have been satisfied.

Threlkeld v. Colorado, 2000 MT 369, ¶ 9, 303 Mont. 432, 16 P.3d 359. First, the suit itself

must arise from the specific circumstances set forth in Montana’s long-arm statute,

M. R. Civ. P. 4(b)(1). Buckles v. Cont’l Res., Inc., 2017 MT 235, ¶ 15, 388 Mont. 517,

402 P.3d 1213. Second, if personal jurisdiction exists pursuant to Rule 4(b)(1), we then

9 determine whether exercising such jurisdiction would comport with traditional notions of

fair play and substantial justice embodied in the Due Process Clause. Threlkeld, ¶ 9.

Montana’s Long-Arm Statute

¶25 The District Court concluded that the first element was satisfied under Rule

4(b)(1)(B), which states that any person is subject to the jurisdiction of Montana courts as

to any claim for relief arising from “the commission of any act resulting in accrual within

Montana of a tort action.” M. R. Civ. P. 4(b)(1)(B). The court determined that Triple D

made a “sufficient showing” that Groo’s social media campaign resulted in the accrual of

the alleged tort actions in Montana.

¶26 This Court’s analysis of accrual has focused on where the events giving rise to the

claims occurred, rather than where the plaintiffs allegedly experienced or learned of their

injuries. Tackett, ¶ 31.

¶27 For example, we concluded in Bi-Lo that a claim did not accrue in Montana based

on the following reasoning:

Bi-Lo sent its check to Alpine in Colorado. Alpine deposited the check into the account of one of its customers in Colorado. Alpine’s alleged mishandling of the check occurred in Colorado. Accordingly, Alpine’s activities did not result in the accrual of a tort action in Montana.

Bi-Lo Foods, Inc. v. Alpine Bank, 1998 MT 40, ¶ 31, 287 Mont. 367, 955 P.2d 154.

¶28 Likewise, in Bird v. Hiller, 270 Mont. 467, 892 P.2d 931 (1995), this Court

determined that claims of fraud, deceit, and conversion related to a dispute over attorney

fees arising from defendant attorney’s representation of the plaintiff accrued in Idaho

because that was where the plaintiff traveled to seek out the defendant’s services and where

10 the defendant made the contested representations. Bird, 270 Mont. at 473, 892 P.2d at 934.

Though the defendant had sent a fee agreement and other letters to the plaintiff’s Montana

address, we held that jurisdiction is not acquired through interstate communications solely

by signing a contract to be performed in another state. Bird, 270 Mont. at 473, 892 P.2d

at 934.3

¶29 Further, in Cimmaron Corp. v. Smith, 2003 MT 73, 315 Mont. 1, 67 P.3d 258,

Cimmaron (a Montana corporation) entered into a collection agreement with Budget

Reader’s Service (a Pennsylvania corporation owned by Pennsylvania resident Gregory

Smith (Smith)) and a sales agreement with Smith’s father, Harold Smith (a Florida

resident). Thereafter, Cimmaron filed suit against Budget and the Smiths in a Montana

district court asserting various claims, including conversion of funds and misappropriation

of assets. Cimmaron, ¶¶ 4, 6, 17. Cimmaron conceded that the defendants’ actions giving

rise to those claims occurred outside Montana; however, Cimmaron argued that because it

was detrimentally affected within Montana by the defendants’ actions, such actions

resulted in the accrual of a tort action within Montana. Cimmaron, ¶ 17.

¶30 This Court disagreed with Cimmaron. We stated that “interstate communication is

an almost inevitable accompaniment to doing business in the modern world, and cannot by

3 In the context of claims for breach of contract, see Milky Whey, Inc. v. Dairy Partners, LLC, 2015 MT 18, 378 Mont. 75, 342 P.3d 13. The Dissent contends that Milky Whey stands for its proposition. Dissent, ¶ 78. However, Milky Whey discussed that “[a] tort action arises from a duty imposed by operation of law” that exists in the absence of a contract—such as the duty to not tortiously interfere with contractual or prospective business relations. Milky Whey, ¶ 23. When a defendant violates a legal duty by directing messages into Montana that constitute and cause the full tort in and of themselves, they can reasonably expect to be haled into Montana courts. 11 itself be considered a contact for justifying the exercise of personal jurisdiction.”

Cimmaron, ¶ 14 (internal quotation and citation omitted) (emphasis added). We held that

the actions that gave rise to the alleged torts occurred outside Montana because the

defendants came into possession of, and allegedly misappropriated, Cimmaron’s accounts

receivable in another state. Cimmaron, ¶ 20.

¶31 Finally, in Ford Motor Co., we concluded that the design defect, failure to warn,

and negligence actions accrued in Montana because “Gullett was driving the Explorer in

Montana when the accident occurred”—even though Ford had manufactured and sold the

vehicle in another state. Ford Motor Co., ¶ 11.

¶32 This Court’s case law makes clear that whether a tort accrued in Montana is

highly-fact specific and dependent on the nature of the alleged tort at issue. Here, the “act”

at issue is Groo’s targeted social media campaign towards a Montana business, Montana

residents, and those with contracts in Montana (a Montana audience), which was calculated

to result in actual damage or loss to Triple D. To prevail on its claims of tortious

interference with prospective economic advantage and tortious interference with

contractual relations, Triple D will still need to prove: “(1) an intentional and willful act;

(2) calculated to cause damage to the plaintiff's business; (3) with the unlawful purpose of

causing damage or loss, without right or justifiable cause on the part of the actor; and,

(4) the act results in actual damage or loss.” Wingfield v. Dep’t of Pub. Health and Hum.

Servs., 2020 MT 120, ¶ 8, 400 Mont. 70, 463 P.3d 452. The Dissent claims that we are

only focusing on Triple D’s harm within Montana to establish accrual within Montana; in

fact, it is not the harm by itself that accrued within Montana, but also Groo’s social media 12 campaign targeted solely towards Montana residents and businesses with contractual

relations in Montana.

¶33 Further, Triple D alleges that Groo’s social media campaign targeted people and

businesses it had (and lost) contracts with, which were executed and performed only in

Montana. By executing and performing contracts within Montana, even if they were

executed over the phone or otherwise, Triple D’s clients were availing themselves of

Montana law and jurisdiction. See Spectrum Pool Prods., Inc. v. MW Golden, Inc.,

1998 MT 283, 291 Mont. 439, 968 P.2d 728. By allegedly (1) intentionally targeting

Montana contracts and residents, (2) to cause damage to Triple D, (3) with the unlawful

purpose of causing damage to Triple D, and (4) actually damaging Triple D, Groo

committed an act that accrued within Montana. M. R. Civ. P. 4(b)(1)(B). The damage

being felt in Montana is not what accrues the tort in Montana, by itself, but also Groo’s

conduct intentionally aimed into Montana and to a Montana audience.

¶34 Contrary to the Dissent’s assertion in ¶ 72, someone reviewing a business or sharing

about their boycott on a national platform would not be subject to personal jurisdiction in

the plaintiff’s forum state. Indeed, if Groo had stopped her online activities after posting

the article referred to in ¶ 13 of this Opinion (or even continued posting articles like this

directed to a national audience) she would not be subject to personal jurisdiction in

Montana today. The post that tipped the scales and subjected her to personal jurisdiction

in Montana was that recounted in ¶ 14 of this Opinion. This post is unique from an online

review of a business or product in that (1) it was not directed to a national audience, but

solely directed into Montana towards Montana residents and those doing business in 13 Montana with Triple D, (2) it encouraged a Montana audience not to do business with

Triple D, and (3) it created by itself, in a Montana resident, a potential cause of action

within Montana for an intentional tort. Groo directed her online activity solely towards a

Montana audience by researching and tagging only those in Montana or those in business

with Triple D in Montana. This is highly distinguishable from a simple review posted

online for anyone to see, which is not targeted toward one particular state or audience.

See, e.g., ¶¶ 56–59 of this Opinion (discussing cases where a person posting on a generally

accessible website not directed to any particular audience in a state did not support

exercising specific personal jurisdiction). For distinguishable cases, see ¶¶ 53–55 of this

Opinion. Each case is highly fact dependent, and we do not today opine on a hypothetical

situation that is not factually developed or before us.

¶35 Groo relies on distinguishable cases for the rule that for specific personal

jurisdiction to lie under Rule 4(b)(1)(B), the defendant must have taken some action while

physically present in Montana that leads to the accrual of the tort. She cites Tackett in

support of this supposed rule based on our holding that “the transmission into Montana of

material statements that the defendant allegedly knows are false or fraudulent is insufficient

by itself to establish accrual of a fraud or deceit action in Montana.” Tackett, ¶ 35

(emphasis added).

¶36 In Tackett, we concluded that Florida defendants formed no jurisdictionally relevant

contacts with Montana. In that case, all but one of the events related to the plaintiff’s

claims took place in Florida. The plaintiff’s single act of permitting his local bank in

Montana to transfer funds to a Florida corporation was insufficient to establish that his tort 14 action accrued in Montana pursuant to Rule 4(b)(1)(B). See generally Tackett. However,

the only act which had any relation to Montana was done by the plaintiff; the defendant

made no contacts with Montana. In Tackett, unlike here, the defendants’ transmission of

materially false statements into Montana did not constitute the full tort in and of itself.

Rather, it was the defendants’ additional acts in Florida that accrued plaintiff’s fraud and

deceit claims. Here, Triple D alleges, and we take as true, that the post itself, which was

directed to a Montana audience, constituted the full tort at issue.

¶37 The Dissent quotes Tackett and other cases (further discussed below) and suggests

the only way to gain personal jurisdiction is if the defendant was in Montana when the

events giving rise to the tort occurred. See Dissent, ¶ 77. However, as these cases show,

the proper analysis is what the defendant’s actions were, and whether those acts led to

events that gave rise to tort claims in Montana.

¶38 For example, in Tackett, the defendant did not act at all with respect to Montana,

only the plaintiff did. See Tackett, ¶¶ 7-12, 15, 34 (“No part of Defendants’ course of

conduct forming the basis of [Plaintiff’s] claims occurred in Montana. Defendants

never . . . sent anything or anyone to Montana.”). Similarly, in Bi-Lo, only the plaintiff

had contact with Montana—the defendant took no action towards Montana, but instead

received a check from the plaintiff in Montana and deposited it in Colorado. See Bi-Lo,

¶¶ 5–6. In Bird, although the defendant had sent communications into Montana, the

alleged tort did not accrue from the communications like they did here, but rather accrued

where the defendant committed “‘a distinct act of dominion’” over the money—in Idaho.

Bird, 270 Mont. at 472, 892 P.2d at 934 (quoting Gebhardt v. D.A. Davidson & Co., 15 203 Mont. 384, 389, 661 P.2d 855, 858 (1983)). In Threlkeld, defendants had had phone

calls with plaintiffs in Montana, but those contacts were not initiated by defendants, nor

did the tort accrue through those contacts, which accrued only when the horse was treated

and died in Colorado. See Threlkeld, ¶¶ 28, 32. The torts in Cimmaron similarly accrued

when the defendants allegedly misappropriated funds in Pennsylvania. See Cimmaron,

¶¶ 4, 17.

¶39 True, interstate communication which reaches Montana, by itself, is not enough for

a tort to accrue within Montana. See, e.g., Cimmaron, ¶ 14; Tackett, ¶ 35. However, that

is not the instant case. Here, Groo allegedly directed messages into Montana, to Montana

residents and businesses, and to residents of other states doing business in Montana with

Triple D; intentionally and unlawfully intending those messages to interfere with Montana

contracts and potential business; and caused damage to a Montana business by advocating

for others to take action within Montana. This is not merely interstate communication, or

merely a harm accruing within Montana, but a targeted campaign into Montana and

towards a Montana audience.

¶40 Defendants, like Groo, cannot hide behind state lines, intentionally acting into

Montana in such a way to cause torts to accrue in Montana, and not expect to be subject to

Montana courts by virtue of M. R. Civ. P. 4(b)(1)(B). Otherwise, defendants could escape

the reach of Montana courts despite having caused the event within Montana at the heart

of torts related to economic interference—namely, the disruption of current and

prospective business. This interpretation, as will be discussed further below, would

16 significantly hinder the State of Montana’s ability to protect the interests and rights of its

residents.

¶41 Because the events that gave rise to Triple D’s allegations of Tortious Interference

with Contractual Relations and Tortious Interference with Prospective Economic

Advantage could not have accrued in any state other than Montana based on the nature of

Triple D’s business, we conclude that the suit itself arises from the specific circumstances

set forth in Montana’s long-arm statute, M. R. Civ. P. 4(b)(1)(B).

Due Process

¶42 The District Court concluded that the second element for a court’s constitutional

exercise of specific personal jurisdiction was satisfied given the nature and substance of

Groo’s forum-related activities. This limitation on a Montana court’s exercise of personal

jurisdiction results from the Fourteenth Amendment’s Due Process Clause.

U.S. Const. amend. XIV. To determine if exercising personal jurisdiction over a defendant

comports with due process, a court must consider whether: “(1) the nonresident defendant

purposefully availed itself of the privilege of conducting activities in Montana, thereby

invoking Montana’s laws; (2) the plaintiff’s claim arises out of or relates to the defendant’s

forum-related activities; and (3) the exercise of personal jurisdiction is reasonable.” Ford

Motor Co., ¶ 12 (citing Simmons v. State, 206 Mont. 264, 276, 670 P.2d 1372, 1378

(1983)).

¶43 With respect to the first prong, the District Court reasoned that Groo purposefully

availed herself of the benefits and protections of the laws of Montana by taking voluntary

action designed to have an effect in Montana. See Simmons Oil Corp. v. Holly Corp., 17 244 Mont. 75, 86, 796 P.2d 189, 195 (1990) (defining purposeful availment as a defendant

taking voluntary action “designed to have an effect in the forum”). More specifically, Groo

identified and targeted a Montana audience and had the specific intent of inflicting

economic pain on a Montana business. We agree that Groo’s actions satisfied this first

prong.

¶44 On the second prong, the District Court determined there is no question Groo’s

social media campaign constituted forum-related activities that gave rise to Triple D’s

claims. The court again stressed that Groo tailored her actions to have an effect on Montana

residents and a Montana business. According to the court, there was a nexus between the

content of Groo’s campaign and Triple D’s business—that nexus made it reasonably

foreseeable to Groo that her campaign would reach Montana and have an impact in

Montana. We agree that Groo’s actions satisfied this prong.

¶45 On the third prong, the District Court applied the presumption of reasonableness set

forth by this Court in Ford Motor Co. to evaluate whether Groo presented a compelling

case that exercising jurisdiction would be unreasonable. Ford Motor Co., ¶¶ 12, 28. The

court then evaluated Groo’s case based on seven factors identified by the Ford Motor Co.

Court. Ford Motor Co., ¶ 29.4 The court acknowledged that Groo would face some

hardship in having to defend in Montana, but found that the other factors tend toward

4 The reasonable analysis turns on factors related to fundamental fairness, including, but not limited to: (1) the extent of the defendant’s purposeful interjection into Montana; (2) the burden on the defendant of defending in Montana; (3) the extent of conflict with the sovereignty of the defendant’s state; (4) Montana’s interest in adjudicating the dispute; (5) the most efficient resolution of the controversy; (6) the importance of Montana to the plaintiff’s interest in convenient and effective relief; and (7) the existence of an alternative forum. 18 jurisdiction being reasonable: Groo engaged in intentional conduct designed to have a

targeted impact in Montana; Montana exercising jurisdiction would not conflict with the

sovereignty of the State of New York; Montana has an interest in adjudicating the disputes

affecting its residents and businesses; Montana would be the most efficient forum for

resolving the controversy; Montana is important to Triple D’s convenient and effective

relief; and, New York would not serve as a valid alternative forum. Based on that

evaluation, the court concluded that Groo failed to make a compelling case that exercising

jurisdiction would be unreasonable. We agree.

¶46 Following the United States Supreme Court’s ruling in Walden v. Fiore, 571 U.S.

277, 134 S. Ct. 1115 (2014), this Court has also analyzed a court’s exercise of specific

jurisdiction within the context of a tort action under two overlapping lines of inquiry.

Tackett, ¶ 32. First, whether the relationship among the defendant, the forum, and the

litigation arises out of contacts that the defendant created with the forum state. See Tackett,

¶ 32 (citing Walden, 571 U.S. at 284, 134 S. Ct. at 1122). And, second, whether the

plaintiff is the only link between the defendant and the forum or whether the defendant’s

conduct forms the connection with the forum state that is the basis for jurisdiction over

them. See Tackett, ¶ 33 (“A defendant must be haled into court in a forum state ‘based on

his own affiliation with’ the state, not based on the unilateral activity of a plaintiff or on

the random, fortuitous, or attenuated contacts the defendant has with other persons

affiliated with the state.” (quoting Walden, 571 U.S. at 286, 134 S. Ct. at 1123)).

¶47 In Walden, the United States Supreme Court held that a law enforcement agent who

filed a false affidavit in Georgia did not create contacts with the forum state, Nevada, where 19 the individuals affected by that affidavit resided. See Walden, 571 U.S. at 288, 134 S. Ct.

at 1124 (“Petitioner never . . . contacted anyone in, or sent anything . . . to Nevada.”).

Absent the unilateral activity of the plaintiffs, the agent would have made no contact with

the forum state. Walden, 571 U.S. at 291, 134 S. Ct. at 1126.

¶48 Here, unlike in Walden, Groo created the contacts that established a relationship

between herself, the forum, and the litigation. As alleged, Groo repeatedly, intentionally,

and with the aim of causing certain actions in Montana used social media to contact known

and prospective clients of a Montana-based business and its Montana-based operator. In

short, Groo established her own affiliation with the state. She identified other residents of

Montana and those with business relations in Montana; the Walden agent made no such

intentional outreach to residents of Nevada other than the plaintiffs. She tailored messages

to influence those residents; the Walden agent only took actions intended to exclusively

affect the plaintiffs. And, she aspired to steer those residents away from a Montana

business; the Walden agent did not intend to interfere with economic affairs protected by

and reliant upon the enforcement of the laws of Nevada.

¶49 How trying to “Absofuckinglutely” take down a Montana business is not a contact

with the forum state itself is a difficult question to answer. These economic losses were

not the result of a “random, fortuitous, or attenuated,” Walden, 571 U.S. at 286, 134 S. Ct.

at 1123, contact that had an incidental effect of causing someone to renege on a contract—

such as might happen when someone reads one of Groo’s stories about photographing

captive wildlife and decides they no longer want to take part. See, e.g., Melissa Groo, How

20 to Photograph Wildlife Ethically, Nat’l Geographic (July 31, 2019),

https://perma.cc/4FGN-HH8N.

¶50 We applied the Walden inquiry in Tackett and concluded that the defendant’s sole

connection to Montana was one the plaintiff had created and that an injury to the plaintiff

in Montana was an insufficient connection to the forum. Tackett, ¶¶ 34-35. In that case,

like in Walden, the defendants “never traveled to, conducted activities within, or sent

anything or anyone to Montana.” Tackett, ¶ 34. Additionally, the events that gave rise to

the claims at issue in Tackett did not accrue in Montana, notwithstanding the

Montana-based plaintiff having experienced harm in Montana as a result of those events.

Tackett, ¶ 35.

¶51 Here, Groo was not a passive defendant like the ones in Walden and Tackett. She

initiated a social media campaign that solely included Montana residents and those doing

business in Montana, and that targeted a Montana business. As alleged, she tagged

companies and individuals in Montana and urged them not to engage with Triple D’s

Montana-based business. Likewise, as previously discussed, the events that gave rise to

the claims at issue accrued in Montana. It follows that Groo made several and substantial

“jurisdictionally relevant contacts” with Montana. Cf. Walden, 571 U.S. at 288, 134 S. Ct.

at 1124.

¶52 The exercise of specific personal jurisdiction over Groo in this matter comports with

M. R. Civ. P. 4(b)(1)(B) and due process. An alternative conclusion would greatly

diminish the ability of states to protect the interests of their residents in the digital era.

Groo’s emphasis on the need for physical contact with a forum for that forum’s courts to 21 exercise specific personal jurisdiction harkens back to an era before the Internet and even

before interstate transit. Though the United States Supreme Court has not decided a case

directly addressing the limits imposed by the Due Process Clause when personal

jurisdiction is premised on a defendant’s online conduct, Groo offers no case law that due

process serves to protect out-of-state actors who intentionally target and aim to cause harm

in a specific forum.

¶53 Other courts that have considered exercising specific personal jurisdiction over

defendants due to their social media posts have reached a similar conclusion. For example,

in Zehia v. Superior Court, the Court of Appeals of California, Fourth Appellate District,

Division One considered “whether California may exercise specific personal jurisdiction

over a nonresident defendant who sent allegedly defamatory statements to California

residents through private online social media messages with the aim of interfering with the

residents’ personal relationships.” 45 Cal. App. 5th 543, 546–47 (Cal. Ct. App. 2020). The

court found personal jurisdiction was appropriate for three reasons.

¶54 First, the defendant “transmitted the allegedly harassing statements directly to a

California resident (the plaintiff) and the allegedly fabricated conversations directly to

another California resident . . . with knowledge the recipients were California residents.”

Zehia, 45 Cal. App. 5th at 556; see also O’Keefe v. Rustic Ravines, LLC, 2023 U.S. Dist.

LEXIS 3913 at *9 (W.D. Pa.) (distinguishing the use of passive websites from using tools

available on social media platforms such as Facebook to target specific users with a specific

interest or within a particular geographic location); cf. Luster v. Reed, 2022 U.S. Dist.

LEXIS 149665 at *16 (W.D. Pa.) (concluding plaintiff had failed to set forth facts that the 22 defendant intentionally aimed tortious conduct towards the forum state and the “social

media posts purportedly made by Defendant . . . lack[ed] any nexus” to the forum).

¶55 Second, the nature and harm of the alleged tort connected the defendant to the

forum. Zehia, 45 Cal. App. 5th at 557. And third, the alleged tortious behavior had a

“distinct California focus” because “defamatory content with a forum-related focus

strengthens the connection between a nonresident tortfeasor’s conduct and the forum.”

Zehia, 45 Cal. App. 5th at 557-58; see also, e.g., Postacchini v. Liljestrom, 2023 Cal. Super.

LEXIS 23035 at *7 (collecting cases in which California state courts have held that

“websites or social media posts may establish purposeful availment for personal

jurisdiction over a non-resident.”); Majumdar, 567 F. Supp. 3d at 911 (“The fact that a

Twitter mention or Facebook tag is a means of addressing a public rather than private

communication to a particular user does not make it any less an intentional, direct

contact.”); Vangheluwe v. Got News, LLC, 365 F. Supp. 3d 850 (E.D. Mich. 2019)

(asserting personal jurisdiction over a nonresident defendant who “doxed” plaintiff); Lord

v. Smith, 2022 U.S. Dist. LEXIS 225098 (N.D. Ill. 2022) (same).

¶56 The Dissent cites other jurisdictions’ cases for its conclusion that purposefully

directed internet postings can never hale a defendant into another state’s courts.

See Dissent, ¶ 84. Those cases do not stand for that proposition. In Shrader v. Biddinger,

633 F.3d 1235 (10th Cir. 2011), the Tenth Circuit stated that “posting allegedly defamatory

comments or information on an internet site does not, without more, subject the poster to

personal jurisdiction wherever the posting could be read.” Shrader, 633 F.3d at 1241

23 (emphasis added); see also Dissent, ¶ 84. We agree. See, e.g., Cimmaron, ¶ 14 (“by

itself”); Tackett, ¶ 35 (same).

¶57 Nevertheless, this is not that case. Here, we do have the “more” called for in

Shrader: (1) Groo directed electronic activity into the state by tagging Montana residents

and those doing business in Montana; (2) with the manifested intent of engaging in

interactions within the state by encouraging those tagged to not do business with Triple D;

and (3) that activity created, in a person within Montana, a potential cause of action

cognizable in Montana. See Shrader, 633 F.3d at 1240 (citing ALS Scan, Inc. v. Digital

Serv. Consultants, Inc., 293 F.3d 707, 714 (4th Cir. 2002)) (laying out a test for when

specific personal jurisdiction is proper arising out of a person’s internet activity). Indeed,

Shrader is notable for its distinction between two defendants—one of whom would have

been subject to personal jurisdiction had the defendant directed the email at someone in

Oklahoma, as here. Compare Shrader, 633 F.3d at 1244-46 (concluding no specific

personal jurisdiction for defendant who merely posted information on website accessible

everywhere), with Shrader, 633 F.3d at 1247-48 (concluding there would have been

specific personal jurisdiction for defendant who sent email if he had knowingly directed

the email at someone in Oklahoma).

¶58 Many of the Dissent’s other citations are the same. See Johnson v. Arden, 614 F.3d

785, 795 (8th Cir. 2010) (merely posting on a generally accessible website not directed at

Missouri is not enough to confer personal jurisdiction); Blessing v. Chandrasekhar, 988

F.3d 889, 906 (6th Cir. 2021) (posting on the internet without directing any

communications to plaintiffs or “anyone else in Kentucky” insufficient to confer personal 24 jurisdiction); see also Revell v. Lidov, 317 F.3d 467, 473-75 (5th Cir. 2002) (same); Young

v. New Haven Advocate, 315 F.3d 256, 263 ( 4th Cir. 2002) (same).

¶59 Similarly, the Dissent points to Axiom Foods, Inc. v. Acerchem Int’l, Inc., 874 F.3d

1064 (9th Cir. 2017), where, although an email list had 10 California residents, the

defendant did not expressly aim its intentional act into California. See Dissent, ¶ 84. The

case now before us, however, is more akin to a more recent Ninth Circuit decision, Ayla,

LLC v. Alya Skin Pty. Ltd., 11 F.4th 972 (9th Cir. 2021), where an Australian skincare

company directed social media advertisements to America, and therefore subjected itself

to personal jurisdiction in California for trademark infringement resulting from the

advertisements.

¶60 The general rule from the Dissent’s cases is clear—and we agree—simply posting

information on the internet for anyone to see is not enough by itself to establish personal

jurisdiction over a defendant. However, when a defendant engages in a targeted campaign

against a Montana business, tags Montana residents and those doing business in Montana,

and encourages them to refrain from doing or continuing actions in Montana, that person

has purposefully directed conduct into Montana such that the Due Process Clause allows

them to be haled into Montana courts.

¶61 This Opinion, like Zehia, reflects the fact that the ease with which a nonresident can

use social media to intentionally and substantially interfere with a resident’s interests and

rights is not a barrier to a forum’s exercise of specific personal jurisdiction.

¶62 The Complaint alleges that Groo stated an intent to destroy a Montana business.

She acted on that intent with a targeted social media campaign. And—though she acted on 25 that intent with minimal effort—she nevertheless attempted to rally Montanans and others

to undermine a Montana business.

CONCLUSION

¶63 Groo petitioned this Court for supervisory control on the basis that the District Court

was proceeding based on a mistake of law, thereby causing a substantial injustice for which

she has an inadequate remedy on appeal. M. R. App. P. 14(3). We conclude the District

Court is not proceeding under a mistake of law and agree that it has personal jurisdiction

to resolve this dispute.

¶64 Affirmed.

/S/ MIKE McGRATH

We Concur:

/S/ BETH BAKER /S/ JAMES JEREMIAH SHEA /S/ JIM RICE

Justice Laurie McKinnon, dissenting.

¶65 I dissent.

¶66 The Due Process Clause of the Fourteenth Amendment and Montana’s long-arm

statute protect nonresident defendants from being haled into a state court and bound by its

judgments when they have no connection whatsoever to the forum state, regardless of what

they have said about a resident plaintiff. Groo may have targeted Triple D, but she has no

relationship to Montana and she did not target the State of Montana. This case can be

26 resolved by applying––correctly and carefully––Montana’s long-arm statute and

precedent. Triple D’s tort claims are based on communications occurring outside Montana

between nonresident individuals on a national forum specific to the wildlife photography

industry. This Court has held other more specific mediums of communication––telephone,

fax, emails, letters––which directly targeted a Montana resident were insufficient to

exercise personal jurisdiction. Groo’s three “tags” on a public social media present an even

less compelling case for exercising personal jurisdiction. I would conclude that the torts

pled by Triple D do not arise from the type of conduct enumerated in Montana’s long-arm

statute. However, even if they did, I would conclude that exercising jurisdiction over Groo

does not comport with due process.

A. Record Facts.

¶67 Preliminarily, some discussion of the particular out-of-state communications is

important. As the Court notes, the first communication occurred in August 2020, when

Keepers sent Groo a private Facebook message about her concerns with Triple D. Groo

responded with a private message that she was interested in helping Keepers and sent

Keepers links to publicly available information regarding nondisclosure agreements.

These were private messages not posted publicly, not sent to or from a Montana resident,

not sent from Montana, and not sent to anyone that had contact with Triple D.

¶68 Next, Groo posted a comment on a Facebook post by Keepers. Keepers’ post

concerned an inspection report of Triple D’s facility. At the time, Keepers was not a

resident of Montana and Groo’s comment made no mention of Montana and was not

directed at Montana residents. Groo also reposted a story from Roadsidezoonews.org that 27 described how Triple D had been cited 6 times for keeping their animals in squalor. While

mentioning Triple D, Groo’s post did not mention Montana and was not targeted to

Montana residents.

¶69 Finally, Groo posted once on Facebook: “I hope very much that those photographers

and companies listed as holding future workshops there would cancel them immediately.

It would be unconscionable to continue to support this facility.” An edit history of this

comment shows that Groo tagged individuals in the wildlife photography industry from

Utah, California, Idaho, Tennessee, North Carolina, Virginia, Canada, Florida, and

Montana. Three of the tags went to Montana residents. There is no record that these three

residents ever read the post that Groo tagged.

¶70 Thus, based on these record facts, the only purported connection Groo had to

Montana were the three tags to Montana residents attached to her Facebook post. The

conduct forming the basis of Triple D’s alleged torts all occurred outside of Montana,

between nonresident individuals, and was not targeted to the State of Montana as a forum.

Groo is free to lodge a social media campaign against anyone and anything she chooses,

and she may be held accountable for her actions in a state whose long-arm statute includes

such conduct and under circumstances demonstrating she has minimum contacts with the

state. However, that Groo disparaged Triple D, a Montana resident, cannot––by itself––

serve as the basis for exercising personal jurisdiction, unless the campaign was directed at

the State of Montana and a Montana audience.1 The Court’s attempt to recast the facts to

1 An example of a media campaign targeting a Montana audience and demonstrating a connection to the State of Montana would be a nonresident defendant sending out communications targeting 28 suit its outcome by making an argument that Groo has targeted a Montana resident by using

three Facebook tags, is a distortion of both federal precedent and this Court’s, which

collectively hold that (1) suffering damages in Montana is not, by itself, sufficient to confer

jurisdiction under the accrual section of Montana’s long-arm statute, and (2) three

Facebook tags to Montana residents do not constitute sufficient “minimum contacts” which

comport with due process.

¶71 Importantly, the record simply does not support the Court’s conclusion that

“[a]pproximately one-quarter of the individuals and companies tagged by Groo were

located in Montana.” Opinion, ¶ 14. Groo’s edit history from her Facebook account clearly

demonstrates that her tags were sent to only three people who resided in Montana: Barbara

Eddy, Julie Chapman, and Bar W Guest Ranch––a total of three tags. Further, and contrary

to the Court’s repeated focus on Triple D being “targeted,” there is simply no record

evidence that any of the other persons tagged were actually doing business with Triple D.

In its clear and obvious objection to having a Montana resident “targeted,” the Court fails

to focus on the appropriate inquiry as set forth in Montana and federal precedent. The

question is not whether Groo targeted a specific Montana resident through her media

campaign; rather, it is whether three tags on a social media post demonstrates she purposely

availed herself of the privilege of conducting activities within Montana, thus invoking the

benefits and protections of Montana law which assures she will not be haled into Montana

Montana for the purpose of influencing a Montana election. These out-of-state communications target the State of Montana and Montana voters and, by doing so, establish the necessary minimum contacts with the forum State of Montana. 29 solely because of random, fortuitous, or attenuated contacts. The Court obfuscates these

fundamental considerations, indeed distinctions, underlying a personal jurisdiction and due

process inquiry and instead focuses its inquiry on the fact that a Montana business has

alleged it suffered injuries in Montana from acts occurring outside of Montana. However,

being attacked by acts and conduct occurring outside the state cannot alone serve as a basis

to hale that person into Montana courts. The Court’s error is a fundamental distortion of

our carefully drawn and clear precedent interpreting the accrual section of Montana’s long-

arm statute and of due process principles enunciated by the Supreme Court in Walden.

B. Montana’s Long-arm Statute.

¶72 Before addressing principles of due process, which I have already briefly touched

upon in setting forth the record facts, Montana’s long-arm statute must be considered. The

cause of action must arise from the type of activity enumerated in Montana’s long-arm

statute as a first step to establishing personal jurisdiction. A defendant is not subject to

personal jurisdiction in Montana if her alleged conduct falls outside one of the enumerated

categories, regardless of whether federal due process might otherwise be satisfied. Here,

Triple D invokes only one provision of the Montana long-arm statute, arguing that its

causes of action “accrued” in Montana. Thus, the relevant section of M. R. Civ. P.

4(b)(1)(B), provides “any person is subject to the jurisdiction of Montana courts as to any

claim for relief arising from the doing personally, or through an employee or agent, of any

of the following acts: . . . (B) the commission of any act resulting in accrual within Montana

of a tort action.” As the communications constituting the basis of the tort were not aimed

at a Montana audience and occurred outside of Montana between nonresidents, Triple D 30 argues the requirements of Montana’s long-arm statute were satisfied because the

communications “reached into Montana” and the tort “accrued” in Montana because it

suffered economic hardship in Montana. The Court has failed to articulate its basis for

determining Montana’s long-arm statute has been satisfied other than holding that Groo’s

social media campaign affected a Montana business. Here, while the injury occurred in

Montana, the conduct giving rise to the causes of action occurred outside of Montana

among nonresidents. This Court, until now, has been clear that suffering an injury in

Montana from out-of-state conduct does not meet the requirements of Montana’s long-arm

statute under M. R. Civ. P. 4(b)(1)(B).

¶73 While the Court refers to several relevant cases and attempts to distinguish them,

the Court remains unenlightened by their holdings. The internet by itself allows the

allegedly tortious communication to be viewed anywhere. This does not mean that the tort

was committed everywhere. The Court’s conclusion that a social media campaign

targeting a resident is sufficient to invoke jurisdiction would make the requirements for

exercising personal jurisdiction meaningless, not to mention invite the unreasonable

consequence of having personal jurisdiction exist based on three social media tags when it

would not exist for other more direct and specific forms of contact. The Court’s analysis

would mean that anyone who posted over the internet a “review” of a business, entity, or

product could be haled into the plaintiff’s forum court based entirely on the act of having

posted a review. A review on the internet directly targets an entity or product and, under

the Court’s analysis, would provide a basis for exercising personal jurisdiction. Thus, for

example, anyone who joins or posts advocating a boycott of a company or product, posts a 31 negative review on Amazon, or suggests people should not buy Bud Light2 are subject to

personal jurisdiction and could be sued in the plaintiff’s forum court. The problem is the

Court has gutted the requirements undergirding personal jurisdiction, with the result that

any “reviewer” or “boycotter” is subject to jurisdiction everywhere—because the internet

is everywhere.

¶74 Our precedent does not support the Court’s conclusion that Triple D’s alleged

economic torts accrued in Montana.3 In Bird, the Birds, who were Montana residents, were

involved in an automobile accident in Idaho. They hired an Idaho attorney who sent a

contingency fee agreement which was signed in Montana. When a disagreement arose

with their Idaho counsel, the Birds filed suit in Montana alleging claims of fraud, deceit,

and conversion. The Birds maintained that these claims accrued in Montana because that

is where the Idaho attorney sent documents to sign and where the original fee agreement

was signed. We concluded, however, that the Idaho attorney sending these documents into

Montana did not result in the accrual of the claims here and did not establish a sufficient

connection between the nonresident defendant and Montana. We held that the conduct

underlying the fraud, deceit, and conversion claims all accrued in Idaho because that is

where the Idaho attorney allegedly asserted unauthorized control. We held that the

2 In April 2023, Bud Light was featured in a social media promotion by transgender influencer, Dylan Mulvaney. There were numerous requests over social media to boycott Bud Light and Anheuser-Busch suffered monetary losses to its North American revenue. 3 The Court misses the mark when it construes my dissent interpreting our precedent as providing “the only way to gain personal jurisdiction is if the defendant was in Montana when the events giving rise to the tort occurred.” Opinion, ¶ 37. What our precedent clearly establishes is that there is no personal jurisdiction over torts where the act giving rise to the claims did not occur in Montana and the fact that an injury was suffered in Montana is insufficient to confer jurisdiction. 32 representations occurred in Idaho and that although documents were sent to Montana

residents, “jurisdiction is not acquired through interstate communications pursuant to a

contract to be performed in another state.” Bird, 270 Mont. at 473, 892 P.2d at 934. If

legal documents sent to a Montana resident and executed in Montana is insufficient to

confer Montana jurisdiction, then certainly three Montana Facebook tags which are part of

a national forum specific to wildlife photography is, likewise, insufficient.

¶75 In Bi-Lo, Bi-Lo Foods, a Montana corporation, entered into negotiations with a

Colorado company for the purchase of refrigeration equipment. The Colorado company

instructed Bi-Lo to deposit earnest money into an escrow account at Alpine Bank, a

Colorado corporation. Bi-Lo made the deposit but thereafter negotiations broke down and

Bi-Lo demanded the escrow money be returned. Bi-Lo filed suit in Montana arguing that

its claims accrued in Montana because, “by cashing its check and disbursing the funds to

[the Colorado company], Alpine [Bank] took voluntary actions which were calculated to

have an effect in Montana, did cause injury in Montana to a Montana resident, and should

have caused Alpine to reasonably anticipate being haled into court in Montana.” Bi-Lo,

¶ 21. These are the same arguments Triple D makes today. However, we rejected Alpine’s

argument that because the injury occurred in Montana there was personal jurisdiction under

our long-arm statute, concluding instead that all acts giving rise to Bi-Lo’s claims occurred

in Colorado and, “[a]ccordingly, Alpine’s activities did not result in the accrual of a tort

action in Montana.” Bi-Lo, ¶¶ 27, 31. Here, as well, only the injury suffered by Triple D

occurred in Montana—all acts giving rise to the torts occurred outside of Montana between

nonresidents. 33 ¶76 In Threlkeld, the Threlkelds raised and bred horses in Montana. After one of the

horses became ill, the Threlkelds contacted Colorado State University’s Veterinary

Teaching Hospital and were given a recommended course of treatment and assured that the

Hospital could provide such treatment. Upon this assurance, the Threlkelds took their

horse to the University for treatment. The horse died the day after it was admitted to the

hospital. The Threlkelds filed suit in Montana alleging deceit, negligent misrepresentation

or fraud, and malpractice. We held that the Threlkelds’ claims “relate entirely to services

to be performed in Colorado and the mere existence of interstate communications relating

to those services does not provide a basis for personal jurisdiction over [the Colorado

defendants].” Threlkeld, ¶ 30.

¶77 In Cimmaron, Cimmaron, a Montana corporation, entered into a contract with a

Pennsylvania corporation and a Florida resident. Cimmaron filed suit against the

corporation and Florida resident alleging conversion of funds and misappropriation of

assets. Cimmaron conceded that the defendants’ actions giving rise to the claims occurred

outside of Montana but argued that because it was detrimentally affected by the actions in

Montana, the actions resulted in the accrual of the tort claim in Montana. Cimmaron, ¶ 17.

Relying on Bird, we held that the actions which gave rise to the alleged torts occurred

outside Montana and noted that “personal jurisdiction is not acquired through interstate

communications made pursuant to a contract that is to be performed in another state.”

Cimmaron, ¶¶ 14, 20 (emphasis in original). We held that “interstate communication is an

almost inevitable accompaniment to doing business in the modern world, and cannot by

itself be considered a ‘contact’ for justifying the exercise of personal jurisdiction.” 34 Cimmaron, ¶ 14 (quoting Edsall Constr. Co. v. Robinson, 246 Mont. 378, 382, 804 P.2d

1039, 1042 (1991), in turn quoting Simmons, 244 Mont. at 91, 796 P.2d at 199.).

¶78 More recently, in Tackett, this Court again reiterated that what is significant under

an “accrual” analysis is where the events giving rise to the tort claims occurred. Tackett

alleged two Florida defendants had procured a wire transfer from him relating to the sale

of Florida property. Tackett asserted that his injury arose from a transaction which

occurred in Lincoln County and, therefore, the Montana court had personal jurisdiction.

We held that defendants’ only link to Montana was Tackett and no part of the defendants’

course of conduct forming the basis of Tackett’s claims occurred in Montana. Tackett,

¶ 34. We explained “the transmission into Montana of material statements that the

defendant allegedly knows are false or fraudulent is insufficient by itself to establish

accrual of a fraud or deceit action in Montana.” Tackett, ¶ 35. The Court explained:

In analyzing accrual in each of these cases, we focused on where the events giving rise to the tort claims occurred, rather than where the plaintiffs allegedly experienced or learned of their injuries. In Bi-Lo, Alpine’s alleged mishandling of Bi-Lo’s check took place in Colorado. In Bird, [the Idaho attorney’s] alleged fraud, deceit, and conversion arose from actions that [the attorney] took in Idaho. In Threlkeld, the defendant’s alleged malpractice and misrepresentations regarding the horse’s treatment occurred in Colorado. In Cimmaron, the defendants’ conversion and misappropriation of funds occurred in Pennsylvania.

Tackett, ¶ 31 (emphasis added). Further, drawing on federal due process principles, we

definitively rejected Tackett’s contention that his alleged injury (the loss of the funds he

paid the defendant) was sufficient to exercise personal jurisdiction holding “[m]ere injury

to a forum resident is not a sufficient connection to the forum.” Tackett, ¶ 35 (citing

Walden, 571 U.S. at 290, 134 S. Ct. at 1125; accord Cimmaron, ¶¶ 17-20 (the mere fact 35 that the plaintiff was detrimentally affected within Montana by defendant’s actions outside

Montana is not sufficient to establish accrual of a tort action within this state)).

¶79 Thus, this Court has consistently held that, even though a Montana resident suffers

injuries in Montana, there is no personal jurisdiction over torts where the acts giving rise

to the claims did not occur in Montana. We reaffirmed this important principle again in

Milky Whey. Milky Whey is a Montana corporation that operates as a dairy broker

supplying food manufacturers in the U.S. and Canada with dairy commodities purchased

from suppliers and manufacturers. Dairy Partners is a dairy supply company located in

Minnesota. “From 2010 to 2013, Milky Whey and Dairy Partners completed nine purchase

orders through telephone, fax, or e-mail, valuing over $181,000.” Milky Whey, ¶ 4. One

of Milky Whey’s purchases was for cheese that Dairy Partners shipped to its warehouse in

Salt Lake City. The cheese became moldy and Dairy Partners refused to reimburse Milky

Whey for the product. Milky Whey filed suit in Montana alleging breach of contract,

breach of warranty, unjust enrichment, and breach of obligation to pay. We held there was

no personal jurisdiction over Dairy Partners because “a tort does not accrue in Montana

when all acts giving rise to the claims occur in another state.” Milky Whey, ¶ 24. The

Court explained that “[h]ere, negotiation, transfer of money, and transfer of product all

occurred outside Montana . . . . Focusing on the place where the services were rendered

reveals that the alleged [tort] did not accrue in Montana.” Milky Whey, ¶ 24.

¶80 The Court unsuccessfully tries to distinguish the present controversy from this

well-established precedent. The only distinction here, however, is with the method of

communication––and we ought not allow technological innovation to subvert the 36 fundamental principles well-grounded in Montana’s long-arm statute and constitutional

due process. If a nonresident defendant initiating most of nine direct communications by

telephone, fax, and email with a Montana corporation selling $181,000 worth of product

to the Montana corporation is insufficient to establish personal jurisdiction, then Groo’s

out-of-state acts giving rise to the alleged torts and her three tags cannot establish personal

jurisdiction. We have clearly held the mere fact that the plaintiff was detrimentally affected

by a nonresident’s out-of-state actions is insufficient to establish personal jurisdiction

under the accrual section of Montana’s long-arm statute.4 The key question is did Groo

intentionally target Montana or a Montana audience, not whether she intentionally targeted

a specific Montana resident or business. I would decline to exercise personal jurisdiction

under our long-arm statute because acts committed outside Montana do not “accrue” within

Montana simply because the injury is suffered in Montana. Our caselaw has been clear,

consistent, and well-reasoned until now. Rule 4(b)(1)(B) is not satisfied where only the

injury is suffered in Montana. No other enumerated section applies. Groo’s alleged social

media campaign may be relevant to a due process inquiry, but it does not establish a basis

for exercising personal jurisdiction under Montana’s long-arm statute and our case law.

4 The Court inappropriately analogizes the present facts to those of Ford Motor Co., where we held the tort accrued in Montana. In Ford Motor Co., this Court held there was personal jurisdiction because the tort (design defect, failure to warn, and negligence) arose from a vehicle accident occurring in Montana. Thus, the tort obviously accrued in Montana and satisfied Montana’s long-arm statute. The significance of Ford Motor Co. was that we further determined exercising personal jurisdiction over Ford was constitutionally permissible because Ford did substantial business in Montana, including advertising, selling, and servicing the vehicle the suit claimed was defective. Ford Motor Co., ¶¶ 23, 27. Ford Motor Co. does not overrule or question this Court’s precedent; rather it built on previously established rules of law and the Supreme Court’s decision in Walden. However, its stream of commerce discussion and accrual of the tort do not inform the present analysis. 37 Under Montana precedent, suffering damages alone in Montana will not suffice to establish

the tort accrued in Montana. The Court cites the elements of tortious interference of

contract, which is not unlike other torts requiring that the act results in actual damage or

loss. Opinion, ¶ 32. However, for purposes of personal jurisdiction, the inquiry is clear

that where damages are suffered is inconsequential. There is no personal jurisdiction either

under Montana’s long-arm statute or our case law if all acts constituting the tort—aside

from suffering injuries––occurred outside of Montana. The Court’s decision to the

contrary is a radical departure from our precedent.

C. Federal Due Process Inquiry.

¶81 If personal jurisdiction, does not exist under Montana’s long-arm statute, further

analysis under the due process prong is unnecessary. Cimmaron, ¶ 10. In any event,

exercising jurisdiction over Groo would not comport with the Due Process Clause of the

Fourteenth Amendment. Due process requires that an out-of-state defendant have

“minimum contacts” with the forum state sufficient to satisfy “traditional notions of fair

play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct.

154, 158 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S. Ct. 339, 343 (1940)).

The defendant must “purposefully avail[] [herself] of the privilege of conducting activities

within the forum State, thus invoking the benefits and protections of its laws,” which

“ensures that a defendant will not be haled into a jurisdiction solely as a result of ‘random,’

‘fortuitous,’ or ‘attenuated’ contacts . . . .” Burger King Corp. v. Rudzewicz, 471 U.S. 462,

475, 105 S. Ct. 2174, 2183 (1985) (internal citations omitted).

38 ¶82 The “minimum contacts” inquiry required before a court can exercise personal

jurisdiction focuses on “the relationship among the defendant, the forum, and the

litigation.” Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775, 104 S. Ct. 1473, 1478

(1984) (quoting Shaffer v. Heitner, 433 U.S. 186, 204, 97 S. Ct. 2569, 2580 (1977)). “For

a State to exercise jurisdiction consistent with due process, the defendant’s suit-related

conduct must create a substantial connection with the forum State.” Walden, 571 U.S. at

284, 134 S. Ct. at 1121. Two related aspects of this necessary relationship are relevant.

First, the relationship must arise out of contacts the defendant herself creates with the forum

state. Burger King, 471 U.S. at 475, 105 S. Ct. at 2183-84. Further, the Court has

“consistently rejected attempts to satisfy the defendant-focused ‘minimum contacts’

inquiry by demonstrating contacts between the plaintiff (or third parties) and the forum

State.” Walden, 571 U.S. at 284, 134 S. Ct. at 1122. Due process limits on the State’s

adjudicative authority protect the liberty of the nonresident defendant––not the

convenience of plaintiffs or third parties. See World-Wide Volkswagen Corp. v. Woodson,

444 U.S. 286, 291-92, 100 S. Ct. 559, 564 (1980).

¶83 Second, and importantly here, the “minimum contacts” analysis “looks to the

defendant’s contacts with the forum State itself, not the defendant’s contacts with persons

who reside there.” Walden, 571 U.S. at 285, 134 S. Ct. at 1122. Due process “does not

contemplate that a state may make binding a judgment in personam against an

individual . . . with which the state has no contacts, ties, or relations.” International Shoe,

326 U.S. at 319, 66 S. Ct. at 160. Thus, the “minimum contacts” analysis focuses on the

39 defendant’s contact with the forum, not the defendant’s contacts with persons who reside

there.

¶84 In Walden, the Court reversed the Ninth Circuit Court of Appeals because the lower

court “shift[ed] the analytical focus from [the nonresident defendant’s] contacts with the

forum to his contacts with the [resident plaintiff].” Walden, 571 U.S. at 289, 134 S. Ct. at

1124. The Court rejected the argument that “a defendant creates sufficient minimum

contacts with a forum when he (1) intentionally targets (2) a known resident of the forum

(3) for imposition of an injury (4) to be suffered by the plaintiff while she is residing in the

forum state.” Walden, 571 U.S. at 289 n. 8, 134 S. Ct. at 1154 n. 8. The proper question,

the Court held, was “not where the plaintiff experienced a particular injury or effect but

whether the defendant’s conduct connects him to the forum in a meaningful way.” Walden,

571 U.S. at 290, 134 S. Ct. at 1125.

¶85 Contrary to this Court’s recitation of distinguishable state authority from lower

courts in other states, there is not a single case in which a court has extended, without more,

personal jurisdiction based on a defendant’s allegedly tortious postings on social media.

The weight of authority supports a conclusion contrary to the Court’s. Federal Courts of

Appeals have routinely held that “posting allegedly defamatory comments or information

on an internet site does not, without more, subject the poster to personal jurisdiction

wherever the posting could be read (and the subject of the posting may reside).” Shrader,

633 F.3d at 1241. In Axiom, the Ninth Circuit held in a copyright infringement case that a

California court lacked specific jurisdiction over a United Kingdom company that sent an

allegedly infringing newsletter to 343 email addresses, which included no more than 10 40 recipients in California. The court in Axiom held the “[nonresident defendant] sent one

newsletter to a maximum of ten recipients located in California, in a market where [the

nonresident defendant] ha[d] no sales or clients. The alleged infringement barely

connected [the nonresident defendant] to California residents, much less to California

itself.” Axiom, 874 F.3d at 1071. The 8th Circuit has held that “[p]osting on the internet

from Colorado an allegedly defamatory statement including the name ‘Missouri’ in its

factual assertion does not create the type of substantial connection between [the

nonresident defendant] and Missouri necessary to confer specific personal jurisdiction.”

Johnson, 614 F.3d at 797. In Blessing, the Sixth Circuit held that there was no evidence

that the users posted the tweets hoping to reach Kentucky specifically as opposed to the

Twitter followers generally, although the resident plaintiffs alleged that those messages

caused third parties to “dox” the plaintiffs in Kentucky. The Sixth Circuit held that the

United States Supreme Court has “consistently rejected attempts to satisfy the defendant-

focused ‘minimum contacts’ inquiry by demonstrating contacts between . . . third parties

and the forum State.” Blessing, 988 F.3d at 906. Thus, Courts of Appeals have declined

to subject defendants to jurisdiction where the communication was not specifically directed

to the forum state. The Fourth and Fifth Circuits have followed a similar analysis. See

also Revell, 317 F.3d at 475 (nonresident defendant not subject to jurisdiction in Texas

because allegedly tortious online post about airplane bombing “was presumably directed

at the entire world” and “certainly it was not directed specifically at Texas, which has no

especial relationship to the [airplane bombing].”); Young, 315 F.3d at 258-59 (declining to

subject two Connecticut-based newspapers to jurisdiction in Virginia for publishing online 41 articles defaming a Virginia prison warden because they “did not manifest an intent to aim

their websites or the posted articles at a Virginia audience.”).

¶86 The error in the Court’s analysis is its failure to distinguish between targeting a

specific individual and targeting the State of Montana. The first, without the necessary

minimum contacts, is insufficient to confer specific jurisdiction. Had Groo targeted the

State of Montana and Montana audiences, specific jurisdiction would be appropriate. But,

here, Groo tagged three individuals pursuant to her national forum specific to the wildlife

photography industry. Neither the facts nor the law support the Court’s decision.

¶87 I would, first, hold that the alleged torts do not satisfy the “accrual” language of

Montana’s long-arm statute as interpreted and well-established by this Court. Today’s

decision will mark a drastic and unwise departure from basic principles of specific personal

jurisdiction. I would, as this Court should, reject Groo’s purposeful availment and

injury-related arguments. Groo did not direct her communications to a Montana audience;

rather, her communications were directed to a national audience of wildlife photographers.

Triple D does not seriously allege Groo has contacts in Montana. Secondly, based on

Walden, guidance from federal Courts of Appeals, and our own precedent, it is my opinion

that there are insufficient minimum contacts between Groo and Montana to comport with

due process constitutional requirements. A nonresident defendant who makes statements

on social media about a forum plaintiff is not subject to personal jurisdiction in the forum

state unless she specifically targets the forum state itself or specifically targets residents of

the state as the audience. This is true even if the nonresident defendant intended to injure

the plaintiff and knew the plaintiff’s injury would occur in the forum state. In my view, 42 the Court’s decision is wrongly tethered to the injury of a targeted Montana resident which,

without more, is insufficient to establish specific personal jurisdiction.

/S/ LAURIE McKINNON

Justices Ingrid Gustafson and Dirk Sandefer join in the Dissent of Justice Laurie McKinnon.

/S/ INGRID GUSTAFSON /S/ DIRK M. SANDEFUR