Silver v. Brown

382 F. App'x 723
CourtCourt of Appeals for the Tenth Circuit
DecidedJune 14, 2010
Docket10-2005
StatusUnpublished
Cited by20 cases

This text of 382 F. App'x 723 (Silver v. Brown) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Silver v. Brown, 382 F. App'x 723 (10th Cir. 2010).

Opinion

ORDER AND JUDGMENT *

MONROE G. McKAY, Circuit Judge.

Plaintiff-appellant David Silver, appearing pro se, appeals the district court’s dismissal of his slander, defamation of character, and duress claims against defendants-appellees Matthew Brown and Jack McMullen in this diversity-of-citizenship case. As relevant for purposes of this appeal, Mr. Silver, a citizen of New Mexico, asserted that Mr. Brown and Mr. McMullen, citizens of Florida, had slandered him, defamed his character, and caused him duress, by posting a “web log” or “blog” on the internet that portrayed him in a negative light. The district court dismissed Mr. Silver’s claims for lack of personal jurisdiction, holding that, under New Mexico’s long-arm statute, neither Mr. Brown nor Mr. McMullen had sufficient contacts with New Mexico to provide the court with jurisdiction over them. Our jurisdiction is under 28 U.S.C. § 1291. Because we believe that the court erred in its jurisdictional analysis regarding the tort claims against Mr. Brown, we affirm the court’s dismissal as to Mr. McMullen, reverse the court’s dismissal as to Mr. Brown, and remand the case to the district court for further proceedings.

I.

The genesis of this dispute was an agreement entered into between Northern Hills, Inc., doing business as Santa Fe Capital Group (Santa Fe) and Growth Technologies International, Inc. (GTI). Mr. Silver was the president of Santa Fe, Matthew Brown was the chief executive officer of GTI, and Mr. McMullen was a member of GTI’s board of directors. In that agreement, Santa Fe agreed to assist GTI in raising money from private “angel investors” in exchange for a fee. It suffices to say that after some, but not all, of *725 Santa Fe’s fee had been paid, relations between the companies and their officers soured. Mr. Silver then sought the remainder of the fee he alleged was due Santa Fe and Mr. Brown sought a refund of the portion previously paid by GTI. The basis for Mr. Silver’s personal tort claims for slander, defamation, and duress against Mr. Brown and Mr. McMullen was a “blog” that Mr. Brown posted to the internet regarding this conflict, with the intent of negatively affecting Mr. Silver’s and Santa Fe’s reputation. 1

The domain name of the blog in question is “DavidSilverSantaFe.com.” Mr. Silver attached a copy of what is apparently the first page of the blog to his complaint. The title of the blog is “A Special Report on David Silver and the Santa Fe Capital Group.” R., Vol. 1 at 24. The first page contains an introduction to the blog written by Mr. Brown. It reads:

This site is dedicated to providing a blog and information regarding Companies that have dealings with David Silver and Santa Fe Capital group. Our company was involved in a transaction that became a nightmare and we are in the process of gathering all content and correspondence with David Silver and employees of Sant[a] Fe Capital group to be posted on this new “social network for businesses wishing to raise capital”. Hopefully other companies and individuals in the “capital raise” scenario might not fall prey to what appears to be a scheme to prey on those needing to raise capital through David Silver’s group.

Id. Mr. Brown then posts a web address for an article about “what appears to be the latest company that has contracted David Silver’s Group” and states that he hopes that the company “will have better luck than we did.... ” Id. Mr. Brown goes on to state:

I will be. linking to Blog’s [sic] in the near future which provide resources to reputable venture funds and a CNN blog which has articles on Santa Fe. I hope this site will help other companies and individuals understand and communicate their transactions with David Silver and Santa Fe Capital group.
We will launch all correspondence and a blog for others to participate in what we hope becomes a social network platform for David Silver and others.

Id. Under the “Latest News” heading appear to be five bullet-pointed hyperlinks:

• David Silver is a thief

• David Silver

• CNN blog

• enn blog

Id. According to the “Main Menu” for the website, it has four parts: “Home”; “The Blog”; “Newsroom”; and “The Forum.” Id.

Mr. Silver also attached to his complaint a copy of an e-mail exchange between himself and Mr. Brown regarding the blog. There is an e-mail dated April 29, 2009, evidently from Mr. Brown to Mr. Silver, that reads:

BTW:
I have two developers doing SEO work on [the blog] right now.I’m glad Bob called to remind me that we need to be launched this week! I went through this one time with an investment firm .and the ruling was ... as long as *726 the information is factual, we can tie this thing up for years!
Its real easy.send back our 6K for services that were not rendered. and on top of it, send me the mailing information, copies of bills for all the administrative things we were charged for.
~ Matt

Id. at 26. 2

The next e-mail is from May 4, 2009, and was sent from Mr. Brown to Mr. Silver and Mr. McMullen (but addresses only Mr. McMullen). It reads:

Jack,
I have not received a refund from David. Have You? We have installed a product called Joomla.which will integrate a full blog site for www.DavidSilver SanteFe.com; this product also integrates postings to Google and Yahoo, which will help drastically with keyword management for search engine exposure!
I should have it up by the end of the day!

Id. at 27.

Mr. Silver responded to this e-mail, asked for the stock and funds Santa Fe was still owed, reminded Mr. Brown that the agreement provided for disputes to be settled by arbitration, and warned Mr. Brown that he would be sued in federal district court in New Mexico — and “could end up having to frequently appear [there]” — if he disparaged Mr. Silver or Santa Fe. Id.

Mr. Brown responded: “Real simple, I do not give a [expletive]! I am launching at the end of the day ... and copying a server in Hong Kong out of my control, which will not be managed by us! Refund our money or stop sending emails!” Id. Mr. Silver responded that if he “got one single call from a member of the public that he saw [the] blog” he was going to bring disparagement and interference-with-business claims in New Mexico. Id.

According to the complaint, the blog was posted to the internet on, or about, May 5, 2009. Mr. Silver sent an e-mail on May 20, 2009, to Mr.

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Bluebook (online)
382 F. App'x 723, Counsel Stack Legal Research, https://law.counselstack.com/opinion/silver-v-brown-ca10-2010.