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Court claims jurisdiction in out-of-state Internet libel case

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TRENTON, N.J.—The case of a California resident accused of libeling two New Jersey residents and making direct references to the state in Internet newsgroup postings does come under New Jersey courts' jurisdiction, a state appellate court has ruled.

The Aug. 2 ruling by the Superior Court of New Jersey Appellate Division in Danna Goldhaber vs. Charles Kohlenberg reaches a different conclusion than other courts, which have ruled they have no jurisdiction over out-of-state residents concerning material posted on the Internet, observers say. But the ruling also reflects the particular facts of the case rather than a conflicting legal analysis, they say.

According to the decision, Danna Goldhaber and her father, Richard Goldhaber, accused Charles Kohlenberg of making "extremely derogatory" comments about them on an Internet travel newsgroup in which all participated.

"These messages accused plaintiffs of base activities, including incest and bestiality. Some of the messages contained cruel references to the hearing limitations of plaintiff Danna Goldhaber," says the decision. "The record contains no explanation of what motivated defendant to act in such a manner if, indeed, he did so," says the opinion.

The Goldhabers sued Mr. Kohlenberg for libel in New Jersey. Based on the advice of a California attorney, Mr. Kohlenberg did not respond to the suit, and a jury awarded the Goldhabers $2,600 in compensatory damages and $1 million in punitive damages.

Other courts have ruled that posting messages in a listserve or newsgroup "by a resident of one state that could be read in a second state was not sufficient to confer jurisdiction upon the latter," the appellate court ruled. Such rulings were made "either on the basis that there was insufficient evidence that the alleged tortfeasor had directed or focused the defamatory comments to the forum state or on the basis that the site in question was passive, as opposed to active or interactive," the New Jersey court said.

In this case, "there is, in our judgment, evidence that the author of these messages did, indeed, target them to New Jersey," the three-judge panel ruled unanimously.

Mr. Kohlenberg "not only knew that plaintiffs resided in New Jersey, he knew the municipality in which they resided and made specific disparaging references to that municipality in many of his postings," the appellate court ruled. "He also made insulting comments about that municipality's police department."

While the appellate panel ruled New Jersey courts do have jurisdiction in this case, it set aside the jury verdict against Mr. Kohlenberg on the grounds that the advice he received from his California attorney did establish "excusable neglect" in not responding to the libel claim. The case was remanded to the lower court for further proceedings.

Noel E. Schablik of Parsippany, N.J.-based Noel E. Schablik P.A., who represented Mr. Kohlenberg, said no decision had been made whether to appeal to the New Jersey Supreme Court. "It's a very ripe issue for further appeal," he said, however. "The appellate division focused its attention on what it concluded to be an intentional direction of language towards New Jersey residents, and that's debatable," said Mr. Schablik.

"It's very clear that this person knew the Goldhabers were in New Jersey, he reached out to New Jersey and he leveled these personal attacks on people who were in New Jersey," said Paul W. Norris, a Lawrenceville, N.J.-based attorney with Star & Stark P.C., who represented the Goldhabers.

Charles S. Sims, an attorney with Proskauer Rose L.L.P. in New York, said: "I'm not certain (the New Jersey court is) relying on a different analytical approach" than other courts have used in ruling there is no jurisdiction.

"These court cases all have marginally different facts," Mr. Sims said. The New Jersey court seems to agree "that merely putting something up on a Web site is not enough to be sued in every state in the country."

The decision is a "fairly straightforward application of jurisdiction in a normal defamation case," said Bruce E.H. Johnson of Davis Wright Tremaine L.L.P. in Seattle. "This is another case where bad facts lead to a particular legal result."

Jeremy Feigelson, an attorney with Debevoise & Plimpton L.L.P. in New York, said, "It's not a decision I would expect to really move the law."

Danna Goldhaber and Richard Goldhaber, Plaintiffs-Respondents, vs. Charles Kohlenberg, Defendant-Appellant; Superior Court of New Jersey, Appellate Division; A-5114-05T2, Aug. 2, 2007