n.b. This post, as is the case with all my posts wherever they appear, is not directed “at” Bill Schmalfeldt. It is not an attempt to have a conversation with him, although he may leave comments subject to rules that Dave Alexander announces from time to time. I am not seeking to libel or harass him. He has in an unfounded and improper manner attacked various of my friends, which motivates me to take the time to do something that I would likely not otherwise do- take the time to post content that seeks to educate and inform anyone who views this on the Internet, wherever you might be, about the nature of cyberspace trolling and predation, and to warn people about this particular Internet troll and predator in particular. I claim fair use in all images and similar copyrighted content I use for the purpose of parody and satire, and to illustrate the various points that I make. So there.
As Hunter S. Thompson, who is surely one of Bill Schmalfeldt’s heroes as well as one of mine, would have smiled and said
But Dr. Thompson is not smiling with Bill. He’s smiling at Bill1. Along with the rest of us.
You see, yesterday Our Unlovable Oaf finally made something clear- something that is inevitably fatal to his doomed South Carolina federal court lawsuit against John Hoge, Pat Grady and a couple of other nice people Bill Schmalfeldt doesn’t like. It may not turn out to be the fatal blow, as that may come even sooner if the court ‘s initial review rejects the case out of hand. But if this misbegotten litigation survives to the stage of motions to dismiss, doom is inescapable.
How can we be so sure of this2? Well, yesterday in what seemed like an endless slime trail on his titter, err… twitter feed- you know, this one
Schmalfeldt put up the following two tweets.
“Long Arm Statute, eh?” Among other big learned legal terms that are parroted without any understanding or comprehension: “Jurisdiction,” “diversity,” “subject matter,” “venue.” Yessir, Mr. Oaf says. All checks out! He likes his chances!!
So the poor defendants are just screwed, right. Well, no, because
To verify this, lets ask another guy who also isn’t a real lawyer, but at least played one on TV where, unlike Bill Schmalfeldt, he never lost a case.
South Carolina’s Long Arm Statute, of course, is mentioned nowhere in Bill Schmalfeldt’s assertion of jurisdiction over the parties in his first amended federal complaint.
A “diversity jurisdiction” merely provides the federal court with a basis to hear the lawsuit. But that alone, assuming that diversity of parties is in fact found, is not enough. Schmalfeldt must advance a basis for South Carolina to exercise personal jurisdiction over defendants residing in Maryland, North Carolina and Tennessee3 in order for the federal court to hear his state law claims. Let’s take a look4 at South Carolina’s “Long Arm Statute,” which is found in the Commercial Code section of the state’s laws.
We can quickly eliminate everything you see above except for subparagraph (1)(d) as a possible basis for jurisdiction. Don’t take my word for it5, but that’s my opinion. So let’s parse from there. Do any of the defendants “regularly do or solicit business” in South Carolina? Nupe. Do any of the defendants “derive substantial revenue from goods used or consumed or services rendered” in South Carolina? Nupity, nupe, nupe. So all that’s left as a place for Bill Schmalfeldt to hang his hat is
…causing tortious injury … in [South Carolina] by an act … outside this State if he [or she] … engages in any other persistent course of conduct … in this State.
Since my opinion is just one of many, let’s ask another esteemed dead guy what he thinks about Bill’s chances relying on this statute to confer jurisdiction.
John Hoge, Eric Johnson, Pat Grady and Sarah Palmer all engage in various persistent courses of conduct. They breathe every day, they eat, they sleep, they make friends, they work, they play, they write about Bill Schmalfeldt on the Internet. All of those things including the last have nothing to do whatsoever with South Carolina6. And the last is only about Bill Schmalfeldt, who has in quick succession been a permanent resident, crediting his own words, of the states of Maryland, Wisconsin and Iowa7. I’m not going to turn this into a law review article and go all International Shoe on everyone. Suffice it to say that, just like the federal court told him in Wisconsin, personal jurisdiction is ultimately the rock upon which his frail craft of a lawsuit, presuming it stays afloat that long, will necessarily strike and sink.
I’ll renew my bet, made last year during the Wisconsin proceedings. If Bill Schmalfeldt has the courage of his convictions, he has three days, through midnight South Carolina time on Friday, the 16th, to accept the following bet at 20-1 odds. Bill can put $5.00 on his chances
that, if it ever comes to motions to dismiss, his case will survive against my $100, which I will pay to the charitable cause of his choice in such event. Well
1 From hell, of course. Hunter Thompson would never accept being taken up to heaven. And good for him.
2 One more time- I am a retired attorney. I am not practicing law in writing this post. I am simply passing along an old duffer’s perhaps well-informed opinion. What I say is not legal advice, whether to the reader or to any other other person. As such, it should not be relied upon for any reason whatsoever, as what I say may be, and very probably is, completely wrong. Proceed at your own peril. Got that? Okay, then…
3 These states are assumed to be where the defendants reside based on what I have read. I have no personal knowledge that they, or any of them, actually live in those states, or any of them.
4 I’m betting Bill Schmalfeldt hasn’t, or if he has, he read them with no comprehension whatsoever.
5 See n.2, above.
6 In the interest of full disclosure I have to admit that I have some recent connection with South Carolina. I rode my bicycle down its Atlantic coast last fall. I enjoyed its scenery, stayed in its fine motels and campgrounds, spend money for food, and even rode through
Myrtle Beach. I probably have, as a result, far greater contacts with the state than any of the defendants. I’m screwed, I guess. Oh, wait…
7 Hell, when it comes right down to it, I was in South Carolina on my bike ride only a few weeks less than the entire time that Bill Schmalfeldt has resided there. See n.6, above.