Walden v. Fiore

Oral argument transcript · No. 12-574 · October Term 2013 · argued November 4, 2013 · the petitioner won

Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court

Advocates

• Jeffrey S. Bucholtz, Washington, D.C., for the petitioner
• Melissa Arbus Sherry, Assistant to the Solicitor General, amicus curiae supporting the petitioner
• Thomas C. Goldstein, Washington, D.C., for the respondent

Transcript

From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.

Chief Justice Roberts: We will hear argument first this morning in Case 12­574, Walden v. Fiore. Mr. Bucholtz. ORAL ARGUMENT OF JEFFREY S. BUCHOLTZ ON BEHALF OF THE PETITIONER

Jeffrey S. Bucholtz: Mr. Chief Justice, and may it please the Court: In holding that the ­­ in holding that Respondents could bring this Bivens lawsuit against Officer Anthony Walden in Nevada, the Ninth Circuit made two errors that independently require a reversal. First, as to personal jurisdiction, the Ninth Circuit held that it was sufficient that Respondents have connections to Nevada, and that Officer Walden allegedly targeted his conduct at them, knowing of their contacts with Nevada. That plaintiff­centered approach is inconsistent with this Court's precedence which emphasize that the defendant himself must have meaningful contacts with the forum State. Second, as to venue, the Ninth Circuit relied on the fact that the Respondents felt in Nevada the effects of Officer Walden's alleged conduct in Alderson Reporting Company Official Georgia. That, similarly, Plaintiff­centered approach is in conflict with the text of the venue statute, 1391(b)(2), which focuses on where the events or omissions giving rise to the claim occurred, not where the impact of those events or omissions may be felt.

Justice Scalia: Do you have any preference as to which of those errors you would like us to rely on?

Jeffrey S. Bucholtz: Well, Justice Scalia, I think, for the reasons set out in the Federal Law Enforcement Officers' amicus brief, which I will try to explain, I think that it would be preferable for the Court to address personal jurisdiction and not just venue, that the reason is that venue in removed cases works differently. There really is no venue, per se, in removed cases. And so if the Court only reaches venue here, holds that venue is improper, in theory ­­ and maybe there are limitations problems with this, but in theory, the plaintiffs could refile the same lawsuit in State court in Nevada. It would be a Bivens lawsuit; it would arise under Federal law, so we would remove it. But then removal would mean, under 1441(a), venue would be proper, per se, in the district of removal because that's the way removal works, and this Alderson Reporting Company Official Court so held in Polizzi half a century ago. And then there would be no personal jurisdiction, and then the personal jurisdiction would be under the Ninth Circuit's decision, and we'd be back exactly where we are now.

Justice Scalia: Of course, the venue question does not ­­ does not bring into the Court a constitutional question and the jurisdictional ­­ the jurisdictional one does.

Jeffrey S. Bucholtz: That's true.

Justice Scalia: And we usually try to avoid constitutional questions.

Jeffrey S. Bucholtz: That's true. And the avoidance canon is certainly one factor the Court could take into account in deciding which issue to reach ­­ or which issues to reach or in what order. On the other hand, the personal jurisdiction question is ­­ is a constitutional question, but it's not a constitutional question in the strong sense of the term because the only reason that the ­­ the personal jurisdiction question, as applied in this case, is a constitutional one is because Congress hasn't provided for nationwide service of process for Bivens claims. And as the Court pointed out in Omni Capital, the Congress has the power to do that. It's Alderson Reporting Company Official not for the Court to do that on its own, to fill a perceived policy gap in personal jurisdiction law. And so, even though it is a constitutional question as currently configured, if Congress thought that it were a problem to apply the existing personal jurisdiction jurisprudence to Bivens claims and wanted to provide for nationwide service of process based on the idea that what counts is contacts with the U.S. as a whole, as opposed to any particular State.

Justice Ginsburg: It's not likely, is it, considering that the Bivens claim was created by this Court and not Congress.

Jeffrey S. Bucholtz: I'm not suggesting that Congress should do that. I think Congress should not do that. I think Bivens claims, for the reason that Your Honor just stated, is ­­ is sort of the last place that ­­ that anyone should start to create a more plaintiff­friendly version of personal jurisdiction. The Court has gone ­­ I'm sorry, Your Honor.

Justice Ginsburg: You ­­ you would not have any problem about ­­ assuming we agree with you that it's ­­ there's no personal jurisdiction, it's the wrong venue, for the district court in Nevada to transfer the case to the Federal district court in Georgia?

Jeffrey S. Bucholtz: Well, I think, Alderson Reporting Company Official Justice Ginsburg, in the ordinary course, in a ­­ in a case starting in district court, under Section 1631 or ­­ or the venue statute, that would be an appropriate course. Here, the district court asked Respondents specifically, if I agree with Officer Walden on personal jurisdiction or venue, do you want me to transfer, or do you want me to dismiss? Because the statute gives the district court discretion and ­­ and says, in the interest of justice, transfer is ­­ is permissible in lieu of dismissal. The Respondents said, emphatically, we don't want you to transfer. We want you to dismiss. I guess they ­­ they decided they would rather have an appeal to the Ninth Circuit and take their ­­ their chances with ­­ with an appeal, then pursue the case in Georgia. So I think under the unusual ­­

Chief Justice Roberts: That's probably ­­ it turned out to be a good ­­ good strategy, at least to the extent they got to the Ninth Circuit. Isn't Calder against Jones in considerable tension with your proposition that you don't look to the plaintiff's contacts with the forum?

Jeffrey S. Bucholtz: I don't think so, Your Honor. I think there ­­ there is definitely some language in Alderson Reporting Company Official Calder that could be read in a variety of ways. I think the key language in Calder ­­ excuse me ­­ as the Court states its conclusions, it says, "In sum, California was the focal point both of the article and of the harm suffered by the plaintiffs." And then the Court later says that ­­ that the defendants expressly aimed their conduct at California. It doesn't say at the plaintiff, who happened to be in California; it says at California. And I think that's not an accident, that the Court used those formulations. In all of the personal jurisdiction cases before Calder and since ­­ and, for that matter, decided the same day, in Keeton ­­ decided the same day as Calder, the Court has emphasized that random, attenuated, and fortuitous contacts with the forum State are insufficient and that, in particular, contacts between the defendant and the ­­ and the forum that are created by the unilateral activity of the plaintiff are not sufficient. So ­­

Justice Alito: What do you think the Court meant when it said that the ­­ the article was aimed at California?

Jeffrey S. Bucholtz: I think what the Court meant, Justice Alito, is that the article was distributed in Alderson Reporting Company Official California, and California was, by far, the largest market for the National Enquirer. The article recounted events or ­­ or alleged events, that happened in California. And the article was drawn from California sources. So it's not fortuitous that the effect of the article was felt in California. That was ­­ that was ­­ nothing about that was fortuitous because the ­­ the defendants knew that the article would be distributed widely in California, that it was the largest market, and they ­­

Justice Alito: When it was distributed, it was distributed everywhere. It was the National Enquirer, so it was probably in every supermarket in the country. And why does California, as an abstract entity, care about an article that makes allegedly defamatory statements about things that people supposedly did in California? I don't quite understand that.

Jeffrey S. Bucholtz: Well, let me try to answer the first part of your question first, Justice Alito. It's true that the National Enquirer was national; it was distributed throughout the country. But the Court went ­­ went to pains in the opinion to emphasize that Alderson Reporting Company Official California was the largest market. And so when the Court said the brunt of the harm ­­ that ­­ this is right after the Court's reference to express aiming, where the Court says ­­

Justice Scalia: It's the largest market for everything, isn't it?

Jeffrey S. Bucholtz: Well, I think particularly for the National Enquirer, when you're talking about articles about celebrities, about actresses in particular, that allegedly injure their professional reputation and prevent them from getting future acting jobs.

Chief Justice Roberts: I don't understand. Are you suggesting if this ­­ everything was the same, except Ms. Jones was in New York, there'd be a different result in that case?

Jeffrey S. Bucholtz: No, I'm not suggesting that. I think that ­­

Chief Justice Roberts: Well, I thought, several times, you said California was the biggest market.

Jeffrey S. Bucholtz: Right. I think ­­ I think the way that ­­ that Calder reads, I think that there are a number of factors. One of them is plaintiff's residence in California. That's where she was when she suffered the emotional distress from ­­ from reading Alderson Reporting Company Official the article about herself and where her job prospects were ­­ were allegedly adversely affected. But it's also true the Court points out that not only is ­­ when the Court says the defendants expressly aimed their conduct at California, the next passage after that, where the Court explains what that ­­ what express aiming at California means, it says California was not only where ­­ where Ms. Jones suffered the brunt of the harm, but where the defendants knew that the Enquirer had its largest circulation. So I don't think you can disentangle the fact that that's where she was, which, of course, was a relevant factor in that case because it was true, from the fact that the defendants, in a broader sense, in a more ­­ in a sense not based on her unilateral activity, but in a sense based on their own contacts, aimed at California. They drew their ­­

Justice Kagan: Well, what does it mean ­­ what does it mean, in the context of an intentional tort, which is what we're talking about here, to aim at a particular State, if it doesn't mean to aim at a person who you know to be within that State? I mean, nobody conducts an intentional tort intending to injure California, per se. You're Alderson Reporting Company Official intending to injure a person who resides in California. So what would it actually mean to aim conduct at a State, irrespective of a person?

Jeffrey S. Bucholtz: Well, Justice Kagan, I think the answer is that it could take a few forms. It depends on the type of case. It would be very difficult to try to come up with the single ­­ you know, sort of comprehensive unitary answer to that question that would govern all types of cases. I think the way that the plurality put it in J. McIntyre, for intentional tort cases, is that maybe you're intending to obstruct the laws of the forum State. That would be more meaningfully aimed at the forum State qua State and not just somebody who happens to be in it or have a connection to it. Another way that conduct could be aimed at a State would be if ­­ if it's a species of purposeful availment or purposeful direction, where you're projecting your conduct into that State, whether that's ­­ whether that's physical and literal or whether it's ­­ it's through some indirect or technological means for ­­

Justice Kagan: Well, suppose ­­ suppose ­­ and I'm sorry. Please.

Jeffrey S. Bucholtz: ­­ for some benefit, for some Alderson Reporting Company Official reason, where you're projecting your conduct into that State, not just because that's where the plaintiff happens to be, which is incidental and irrelevant to you that the plaintiff is there, as opposed to anywhere else, but because you're seeking that State out. That could be ­­ it could be, in a case like J. McIntyre, the Court, of course, divided over whether in a ­­ in a very broad sense, sending your product into the stream of commerce, intending that it in some sense ­­ you know, go to the U.S. as a whole, without any particular focus on a given State, was sufficient. But at least there ­­ at least there, you have the intent to serve the U.S. market as a whole. And so you at least are on notice that your own conduct is putting you at risk of being haled into court in any one of the States.

Justice Kagan: Yes. I mean, I guess I just ­­ the ­­ the McIntyre example is a very different kind of example because, in those cases, you really are talking about a company seeking to serve a general market in a State. But intentional tort cases don't usually have that quality. You're going after a particular person in an intentional tort case. And it's odd to think of going after an intentional ­­ a particular Alderson Reporting Company Official person, whether it's a defamation suit or it's a fraud suit or ­­ or what have you, as ­­ as targeting the State itself.

Jeffrey S. Bucholtz: Well, I think if it's a defamation suit, Justice Kagan, if you project your defamation into the forum State, then it's fair to say that you've, in a sense, entered the forum State, whether that's electronic or physical, as in Calder.

Justice Kennedy: But in ­­ in this case, it was known ­­ or should have been known that these were gamblers; they were in Nevada. That's where a lot of ­­ that's where their gambling takes place. They were residents of Nevada. So in that sense, they were like the plaintiff in ­­ in Calder. The injury was there, and the defendant arguably knew or should have known that that's where its major impact would be. I recognize your point that, when you take money away, then you're inconvenienced in any State where you happen to be, but there was an argument here ­­ it seems to me there is an argument here that this was gambling, and these people were from Nevada, and so you've ­­ this ­­ this curtails their right or ­­ or their option to conduct ­­ to conduct their activities in ­­ in Nevada.

Jeffrey S. Bucholtz: Well, Justice Kennedy, the Alderson Reporting Company Official complaint alleges that the plaintiffs had contacts with Nevada, were residents of Nevada. Of course, they showed Officer Walden California licenses. That's what the complaint alleges, not Nevada licenses. And so at the time of their actual ­­

Justice Ginsburg: But didn't they say they were residents in both places, in both California and Nevada?

Jeffrey S. Bucholtz: They do say that. But there's no reason to think ­­ and even they don't allege this, that Officer Walden knew that at the time that he actually interacted with them. And so there's no allegation that he ­­

Justice Kennedy: Let me ask this ­­ and it's probably clear in the briefs. Is ­­ is the gravamen of the complaint the seizure at the airport or the later false affidavit? Because, to the extent it's the later false affidavit, that cuts against you marginally.

Jeffrey S. Bucholtz: Well, I would emphasize "marginally," Justice Kennedy, because I think the gravamen of the complaint is both. I don't think there's a way to separate them. The effect that the plaintiffs are ­­ the reason for their lawsuit ­­ they're claiming damages based on the allegedly false Alderson Reporting Company Official affidavit, is that it took them longer than it otherwise would have to get their money back. It's the same money that was seized in Atlanta. So it's a continuation of the effect of the seizure. You can't separate them cleanly. And the affidavit ­­

Justice Kagan: Well, would you ­­ would your answer be different ­­ suppose that the ­­ the officer had said, you can keep ­­ you can keep your money, go on to Nevada with it. And then, once Fiore ­­ the Fiores had reached Nevada, the officer said ­­ the officer filed a false affidavit, which, let's say, froze the Fiores' bank accounts. Would your ­­ would your answer be different? The affidavit was filed in Georgia, but the money was not seized in Georgia; instead, the money has gone on to Nevada. Is there personal jurisdiction in Nevada?

Jeffrey S. Bucholtz: Well, Justice Kagan, I think if ­­ if what Officer Walden allegedly had done ­­ of course, that's not this case ­­ is freeze a bank account in Nevada, then ­­

Justice Kagan: Well, he did it by filing an affidavit in Georgia, and then it froze a bank account.

Jeffrey S. Bucholtz: No, I understand that. I understand the question. But if what he had done is Alderson Reporting Company Official freeze a bank account in Nevada, then maybe it would be fair to say that he had entered into Nevada by freezing the bank account in Nevada. But, here, the cash was in Atlanta. The plaintiffs brought the cash to Atlanta. Officer Walden didn't seek them out, knowing that they had any connection to Nevada. They ­­ he didn't go to Nevada. He didn't direct anyone in Nevada to do anything. He didn't seize a ­­ or freeze a bank account in Nevada or direct anyone to do anything like that. He never had any contact with Nevada at all, except for the very intangible contact, if you can call it that, of ­­ of allegedly writing this affidavit to keep the plaintiffs from getting the money back sooner than they would have. But the plaintiffs would have gotten the money back wherever they happened to be or, really, more precisely, wherever their lawyer happened to be. The fact that they chose a lawyer in Nevada, and that's where they asked the government to send them their money back, ultimately, is the very definition of fortuitous contact between Walden and Nevada.

Justice Sotomayor: Could you tell me ­­ you started by saying that our personal jurisdiction and venue provisions and jurisprudence center on a ­­ on a Alderson Reporting Company Official defendant's action, not on the plaintiff's action or injury. Calder suggests otherwise. But how do you respond, not only to Justice ­­ I'll do this after, but let me just pose the question, and you can answer it on your rebuttal.

Jeffrey S. Bucholtz: Thank you.

Justice Sotomayor: I'm worried about the internet effects from somebody's account in Vermont by someone in Illinois ­­ the hypothetical on page 19, who steals something from a store in California.

Jeffrey S. Bucholtz: Thank you, Justice Sotomayor. If I may, I'll reserve the balance of my time and, as you suggested, address that on rebuttal. Thank you.

Chief Justice Roberts: Okay. Thank you, counsel. Ms. Sherry. ORAL ARGUMENT OF MELISSA ARBUS SHERRY, FOR UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONER

Melissa Arbus Sherry: Mr. Chief Justice, and may it please the Court: If I could start with this Court's decision in Calder because the facts of this case stand in stark contrast to Calder. In Calder, the article was all Alderson Reporting Company Official about the State of California. It was about the California activities of a California resident whose career was centered in California, based on California sources, and in a magazine that its ­­ where its primary publication was in California. Here, even if you were to focus just on the affidavit, the affidavit is, in every real sense, focused on the State of Georgia. According to Respondents' own allegation, it recounts what happened in the Atlanta airport in Georgia. It was based on information that was received by Officer Walden in Georgia. It's about funds that were seized in Georgia, that remained in Georgia. It was prepared in Georgia, forwarded to an AUSA in Georgia, for forfeiture proceedings in Georgia. And so the two cases could not be more different. Just as the focal point of the tortious activity in Calder was on the State of California, here, the focus of the tortious activity was on the State of Georgia.

Justice Scalia: Did the affidavit ever get to Nevada?

Melissa Arbus Sherry: It didn't get to Nevada. Based on Respondents' own allegations, it was sent to an AUSA in Georgia for forfeiture proceedings in Georgia. And, Alderson Reporting Company Official notably, had Respondents wanted to regain their property during the 6 months' period of seizure, they would have had to go to Georgia to do so.

Justice Kennedy: Do we know how much of the information ­­ the supplemental information that was prepared in Nevada and then was forwarded to Georgia, how much of that information was in the affidavit?

Melissa Arbus Sherry: Based on the current record, I don't know that we do. If you look at the complaint allegations, they suggest that the ­­ what they call the "exculpatory information" was left out of the affidavit. The affidavit itself, if it even exists, is not in the record in this case. And then ­­ you know, by focusing ­­ you asked the question, Your Honor, about what the gravamen of this case is. I think, in a very real way, the gravamen of the case is the initial seizure. The Ninth Circuit focused exclusively on the affidavit, and Respondents do so here as well. But I think it's a quintessential example of the tail wagging the dog. The affidavit is, at best, a thin and artificial read. Even if you were to focus exclusively on the affidavit, as I explained ­­

Justice Ginsburg: But it was ­­ it was stated as a separate claim, and I think Judge Grisholm Alderson Reporting Company Official read it that way, and I don't think Petitioner has taken issue with that, that there's ­­ one claim is for the seizure, another claim is for the false affidavit. So the seizure stops the funds immediately, and then the false affidavit keeps them there. So I didn't think there was a ­­ a genuine difference between the parties on whether the affidavit ­­ knowingly composing a false affidavit is an independent claim.

Melissa Arbus Sherry: There isn't for purposes of ­­ of this case in this Court, and I don't mean to suggest otherwise, but while there may be a distinct claim, there is no distinct injury. The injury that Respondents allege based on the affidavit is simply that the initial seizure continued beyond the time that it otherwise would have. And for that reason, the harm ­­ the same economic harm that they were already feeling in Nevada, continued beyond a certain person point in time.

Justice Kagan: But imagine a case where everybody agreed that the initial seizure was lawful, so that that wasn't part of the complaint at all, and the only complaint was that a false affidavit had been filed, so that, after making the preliminary investigation, the officer hadn't transferred the money, Alderson Reporting Company Official but had, instead, kept it.

Melissa Arbus Sherry: And, again, I ­­ obviously, that's not this case, but I don't think that case would be any different because, assuming that the affidavit looks the same as it's alleged to look in this case, it would still be focused ­­ that money in Georgia and everything about it would still be related to Georgia. Again, the only connection to Nevada would be the fact that Respondents felt some harm in that State. It's not a harm that's unique in any respect to Nevada. It's a harm that they would have felt no matter where they traveled. If they had gone to their other residence in California, if they had left on another ­­

Justice Alito: And that would be true, even if the Respondents had never been in Georgia?

Melissa Arbus Sherry: No. I think it's ­­ I think it's significant, here, that the Respondents did go to Georgia. I mean, here, we are talking about a traveling Plaintiff ­­ a mobile Plaintiff, who voluntarily left their home State and traveled to other States, traveled to New Jersey, traveled to San Juan, and traveled to Walden's home State, the place where he lives and works, and brought their cash with them there. And so I think it is significant that they did travel to the State of Georgia, and I think it shows Alderson Reporting Company Official how broad the Ninth Circuit ruling really is. As far as law enforcement officers, go, Federal, State, or local, this is a really problematic decision because they interact with travelers from all 50 States and beyond on a daily basis. The idea that, based on those interactions, that they can be hauled into a far­away and distant forum, based on nothing more than their interaction with a traveler and finding out where that person is from, which, of course, unlike this case ­­ the facts here are somewhat unique, in that the drivers' licenses that were showed were not from the State of Nevada. In most cases, when travelers show a driver's license, it's from their State of residence.

Justice Alito: Do you think it's relevant in a case like this whether the ­­ the Federal officer who is sued is represented by the Justice Department?

Melissa Arbus Sherry: I don't think it's relevant at all. I would point Your Honor to the Court's decision in Stafford v. Briggs. In that case ­­ it's a venue case. It's about 1391(e). In that case, the dissent made an argument that that provision should extend to personal capacity cases against government officials. And one of the arguments made is there's really not much of a burden on them because they have Alderson Reporting Company Official DOJ representation and because they have indemnification. And the majority there rejected that argument. I think it's equally implausible here, and I think it's significant that, not only did the Ninth Circuit rely on the fact of DOJ representation, which, mind you, is not a guarantee, it's a discretionary determination; but not only did they rely on it, they relied on it to say that there would be personal jurisdiction here because this is a Federal official ­­ or, really, a State official deputized as a Federal official.

Justice Kagan: Ms. Sherry, just to try to figure out how far your argument goes, suppose there's an IRS agent sitting in Washington, D.C., and she maliciously does something, files an affidavit, does whatever she does, to impose a tax penalty on somebody in Nevada, and everything that she does happens in Washington, D.C. Does the person in Nevada, who is the victim of this malicious attempt to impose a tax penalty, have to go to Washington, D.C., to sue her?

Melissa Arbus Sherry: I think there's more difficult questions there, where the individual hasn't left the State at all and where it's targeted at the State. I Alderson Reporting Company Official think that comes to Your Honor's question about what it means ­­

Justice Kagan: Well, she's a very mobile person. She lives in Nevada, but she goes other places, and ­­ and this could ­­ you know, harm her wherever she goes. Isn't that what you said? So why should she be able to bring suit in Nevada, under your view?

Melissa Arbus Sherry: That is what I said and I think maybe it goes to Your Honor's other question, earlier, about what it means to expressly aim your conduct at the forum State, as opposed to just the forum resident, when we're talking about an intentional tort. In the cases that have looked at this, they've ­­ they have looked for something more besides simply aiming your conduct at a forum resident, some indication that the ­­ that the defendant is trying to reach into the forum State. And some of the examples that have come up is when they've actually sent something into the forum State, whether it's a defamatory article or a letter, the bullet example that's in the restatement and mentioned in the briefs. In those cases, the defendant is actually sending something physically into the State or, for example, directing activity in the forum State ­­ directing something to happen in the forum State. Alderson Reporting Company Official Whatever the answer is to the ­­ to that hypothetical, the facts here are really quite different. Walden didn't do anything to reach into the State of Nevada. And as my colleague pointed out, the only connection to Nevada and the idea that the money was going to be returned there and eventually was returned there is entirely fortuitous. It's based entirely on the unilateral acts of the plaintiff, the fact that they happened to hire a Las Vegas attorney. If they hired ­­

Justice Scalia: Ms. Sherry, you ­­ would you want us to decide this case on the jurisdictional question or the venue question?

Melissa Arbus Sherry: The Court, I think, can do either. My preference would be ­­

Justice Scalia: I ­­ I understand that. That's why I asked the question. (Laughter.)

Melissa Arbus Sherry: My ­­ my preference would be that ­­ the same as Petitioner's, that the Court decide it on personal jurisdiction grounds, and the reasons are the ones expressed in the Federal Law Enforcement Officer brief.

Chief Justice Roberts: What ­­ what type of action would the United States have brought if they Alderson Reporting Company Official decided to bring an action? It would have been in personam or in rem against the assets?

Melissa Arbus Sherry: It would have been an in rem action against the assets. It would have been a forfeiture complaint that would have been filed in Georgia. And in those proceedings, the Respondents would have had an opportunity to contest the forfeiture. If during either the pendency of those proceedings or even before those proceedings, if they had wanted to seek to regain control of their property, they would have had to file a motion or a petition in the State of Georgia. They wouldn't have been able to file one in their home State. And, again, those are the statutes that we cite at page 31 of our brief. The consequence of the Ninth Circuit's decision here really is to allow personal jurisdiction, as well as venue, to travel with a mobile plaintiff in a way that it cannot travel with mobile chattel. We've talked mostly about personal jurisdiction here, but could I ­­ if I could just take a quick moment on venue and point the Court to this ­­ to the Leroy decision in 1979. Nobody contests that there would be no venue in the District of Nevada under the Leroy decision. The language change in 1990 does nothing to Alderson Reporting Company Official change that and does nothing to change the result in Leroy. Respondents avoid the statutory text, and I think it resolves this case. Thank you.

Chief Justice Roberts: Thank you, counsel. Mr. Goldstein. ORAL ARGUMENT OF THOMAS C. GOLDSTEIN ON BEHALF OF THE RESPONDENTS

Thomas C. Goldstein: Mr. Chief Justice, and may it please the Court: You are being asked by the other side to write an opinion about personal jurisdiction that is going to try and slice the salami very, very, very thin, that is going to create a huge amount of confusion about these facts versus the facts in Calder and that is going to be very, very difficult to reconcile with the internet cases and the cases that the lower courts are constantly confronting, about where a person in State A intentionally injures a person in State B. And that person frequently doesn't shoot a gun into the other State. They sit at their computer, and they steal money under the bank account. They take the person's ID. They use their credit cards and the like. I think, in truth, the way the case is most Alderson Reporting Company Official likely to be resolved ­­

Justice Scalia: They didn't really injure a person in State B here. I mean, these people were in Georgia when the injury occurred.

Thomas C. Goldstein: Justice Scalia, we disagree, and so let me focus on your point and Justice Kennedy's question about which claim it is. The claim here ­­ the complaint states two complaints, Judge Berzon recognized. One is about the seizure. It's exactly what you are describing. The other is about the false affidavit. And those really are different as a matter of law. I have a couple of citations to give you to explain how this legal process works. What happens is the DEA seizes the money at the Atlanta Hartsfield Airport. He takes the cash and turns it in to a locker. Then what happens is that we have to state a claim to the money. And when we state a claim to the money, they either have to do one of two things: They have to give it back to us as a matter of law, or they have to start a forfeiture process as a matter of law. And if you start the forfeiture process, you have to provide to the assistant U.S. attorney a factual basis for the forfeiture. And the way to look at this, Alderson Reporting Company Official I think, is the way that Justice Kagan's hypothetical asked, and that is imagine that there were two officers here, not one. Officer A ­­ we'll call him Walden ­­ is at the Atlanta Hartsfield Airport, and he seizes our money. And just assume that that's perfectly lawful. We then state a claim to the money, and then we provide factual information about why it is that the money is not subject to seizure. They have to return it to us at that point, or they have to start the forfeiture process. And when that second officer creates a false affidavit to start the forfeiture process, we are not in Georgia. We have no ongoing contacts with Georgia. And we are losing access to the money only in Nevada. That's the only place we're in ­­

Justice Alito: Well, suppose that the plaintiffs in this case were not professional gamblers. Let's say they were Major League umpires, or they are members of a rock group that's going on a tour of 25 cities. Where would there be personal jurisdiction there? In every place where the umpire was going to appear at a game? Every place where the group was going to perform? Alderson Reporting Company Official

Thomas C. Goldstein: No, sir. The lower courts have tackled this question because people go visit their mother­in­law. They do travel around. It's a mobile society, and they have taken, from your opinion in Calder and Jones, the focus on where it is that the plaintiff lives and works. And there is a good reason for that. Personal jurisdiction is trying to tackle the question of where does the defendant reasonably believe that he will be haled into court. It's a fairness principle. And that is, we need to have a predictable rule that allows the would­be defendants to know, okay, if I do this ­­

Justice Alito: Well, here, the ­­ here, the plaintiffs apparently lived in two places, right? California and Nevada.

Thomas C. Goldstein: That is ­­

Justice Alito: And suppose my hypothetical rock performer has five houses, one in California, one in Montana, and so forth. He ­­ personal jurisdiction everywhere?

Thomas C. Goldstein: No, sir. The ­­ and let me just start with the premise of this case, all right? My friend said that this officer was shown the California ­­ California driver's license. That's not Alderson Reporting Company Official correct. He wasn't shown a California driver's license. The officer in San Juan, Puerto Rico, was shown one. They only ­­ their principal residence, the complaint alleges, I think, in paragraph 2, is in Nevada. We do have situations ­­ and that's where they lived and worked. We have situations ­­

Justice Alito: Well, they were sufficiently residents of California to get California driver's licenses, were they not?

Thomas C. Goldstein: That is true, at one point, and they had moved. I'm going to step outside the record, just so I can accurately answer your question. But it will give you a sense of how these cases actually operate. Most often, you have the situation where they're college students ­­ you know, you have a college student who lives at home with their parents, but they go off to college, and they may be injured where it is that they live and go to school in that case. And what the lower courts do is, sensibly, they say, if you know where the person's principal residence is ­­ and this case is simplified by the fact that the district court understood and assumed that the defendant knew that they lived in Nevada. It's never been contested in the case. Alderson Reporting Company Official And Judge Berzon said, quite correctly, what you have to do is you have to make it a prima facie case because there's no evidence in this case that the ­­ that the principal residence was Nevada and that the defendant knew that.

Justice Scalia: So you're really arguing for a very broad principle. Whenever there is an intentional tort, you can be haled into court at the place of residence of the person against whom the tort is committed.

Thomas C. Goldstein: No, sir. I'm sorry ­­

Justice Scalia: No, that's what I thought you were saying.

Thomas C. Goldstein: Okay. Then I've ­­ I've misled you, and let me state our test, which I haven't done yet, and that may help you. Our rule is as follows: When the defendant intentionally targets the plaintiff for injury in State A, where the injury arises ­­ and that's going to be the big difference. Does the injury arise there? Justice Scalia, your impression in your earlier question was that this injury didn't arise in Nevada. But our test requires that it arise in Nevada, and the defendant knows that it's going to arise in Nevada. Alderson Reporting Company Official I'll contrast our ­­ our false seizure claim, right? We were in the airport. We lose the $97,000. If we then go back to Nevada and then file suit, our injury can't travel with us. And that's the big concern of ­­

Justice Breyer: Well, I don't see how it arises in Nevada. What they're saying is that some people in Georgia didn't give back some money that they took in Georgia. To take your example, my question is this: There could ­­ you say there are many, many, many cases. We could get this all mixed up if we don't follow your rules. All I want you to do is cite me a few, but the few that I want you to cite me will meet certain criteria.

Thomas C. Goldstein: Okay.

Justice Breyer: For example, a college student goes into the bookstore, and it's also a pharmacy, by the way. And he breaks his finger in the door. Which he thinks is his fault. He says, I am going home; send me some bandages. The store never does. Send me some books, I just bought them. The store never does. They know his home address, all right? Injury ­­ now, what about those? Cite me some lower cases where they say Alderson Reporting Company Official there is jurisdiction in cases like that.

Thomas C. Goldstein: I have not seen ­­

Justice Breyer: Oh, I lost my billfold. I lost it here in the store. When you find it, will you send it back? They never send it back, though they found it. All right. So just give me some lower court cases that finds jurisdiction in that kind of situation.

Thomas C. Goldstein: In that kind of situation, where the injury actually ­­ and you have named several situations.

Justice Breyer: No, no, the injury ­­ my goodness, he lost his billfold. There was money in it. And by the way, when he gets home, his parents are away, and he's not going to have any money to spend on food or even, like, CDs or anything. (Laughter.)

Thomas C. Goldstein: So, Justice Breyer, it is our position that, in that situation, there is not personal jurisdiction. And let me try ­­

Justice Breyer: There is no jurisdiction in those cases where he lost his billfold in the bookstore in the college town, 1,000 miles away from home, and he's going home, and everybody knows he's never going to have any money, and they keep the money. Okay. What's the difference? If there are Alderson Reporting Company Official no cases on those, what is the difference between that case and yours?

Thomas C. Goldstein: Okay. The difference is that the defendant in that instance, the injury arises at the bookstore. Okay? And the fact that it has a continuing effect, as a practical matter, the lower courts uniformly treat the injury arising as in the bookstore. But there are situations that you can imagine the following: And that is, he loses the billfold in the store. Okay. That injury arose there. Now, someone takes the credit card from the billfold after he has gone home, knows that he's at home, and starts spending his money with it. That injury arises where he lives.

Justice Breyer: Okay. Now, give me the case that says that.

Thomas C. Goldstein: Okay. The cases that are closest to that ­­ two of them are at page 25a of the petition appendix. They are the Bancroft case, and that ­­ these are not going to be billfold cases. Okay? Billfold cases, people tend not to ­­ if you lose $100, people don't file a lawsuit. These are bigger cases. And it's the petition appendix. You've pulled open the red brief, so I am asking you for the Alderson Reporting Company Official cert petition. The Bancroft case at 25a is where a Georgia resident writes to a Virginia registrar, and the registrar misappropriates the website of a California company. And that is, they never set foot in California. They don't ­­ you know, do anything in California at all. And there, there is jurisdiction in California because they know that the person's going to be hurt in California. The next one is Metropolitan Life, that ­­ the same page, an Alabama resident writes to an insurance company, and they say, Ah, I'm entitled to the insurance proceeds. But the actual proceeds belong to someone in California. And they never get the money. So it's like this case. The money never gets sent into California. And these remote injury cases ­­

Justice Breyer: Is this a case ­­ is this a case like ­­ I'll look at those cases.

Thomas C. Goldstein: Okay.

Justice Breyer: But is your case a case like where the ­­ a credit card is used, somebody finds it in a bookstore and starts spending the money and did the agents here, who were outside Nevada and they were keeping the money, were they going and spending it? Alderson Reporting Company Official

Thomas C. Goldstein: They weren't going and spending it. They were ­­

Justice Breyer: Was there a credit card that they were using?

Thomas C. Goldstein: No, sir. I ­­ I am giving you ­­ I was trying to take a billfold example and ­­ I'm ­­ I'm trying to ­­

Justice Breyer: I was trying to figure out just which cases I should read carefully, and I will read those cases.

Thomas C. Goldstein: Okay. And there's a case that's discussed in several of the briefs called Dudnikov, and that involves an ­­ an eBay ­­ eBay­like auction, and someone in one State blocks an auction in another State. So one of the impressions ­­

Justice Scalia: Was the money here in Georgia the whole time?

Thomas C. Goldstein: The money here was ­­

Justice Scalia: Was it still there in that locker?

Thomas C. Goldstein: No. Here's the thing about it, this is no longer about the cash. And this ­­ the actual answer to your question is he turns the money in at a locker, okay? Then it's deposited into an account. Alderson Reporting Company Official It's not about the physical money in any way, shape, or form at that point. We weren't ­­ when we got the money, nobody sent us a duffle bag full of cash. There was a check, of course.

Justice Kagan: Well, if it were about them ­­

Thomas C. Goldstein: Yes.

Justice Kagan: So ­­ so suppose they seized a gold watch ­­

Thomas C. Goldstein: Okay.

Justice Kagan: ­­ and then they refused to return the gold watch.

Thomas C. Goldstein: Yes.

Justice Kagan: But the gold watch really is still sitting there in Georgia.

Thomas C. Goldstein: Yes.

Justice Kagan: Okay? Would you say that ­­ that then there's ­­ there's personal jurisdiction in Nevada?

Thomas C. Goldstein: Okay. Okay. And same facts, and that is a false affidavit, it's not just they seized it, it's they make a false ­­

Justice Kagan: Yeah, they seize it, and then there's a false affidavit keeping it. Alderson Reporting Company Official

Thomas C. Goldstein: Right. Yes. That ­­

Justice Kagan: And the complaint is only about the false affidavit, but it's in reference to property that is indisputably in Georgia.

Thomas C. Goldstein: Yes. I do think, if you can prove an injury, which I think is very hard from the gold watch ­­ let's say a computer, just to make it a little bit more plausible, that they would be hurt in Nevada, then, yes, I do think if you can make out an injury, which isn't ­­ the tort doesn't arise until the injury occurs. That's why the lower courts treat these cases as the tort occurring where the victim is.

Justice Ginsburg: Mr. Goldstein, can I take you back to the origins of all of this?

Thomas C. Goldstein: Yes.

Justice Ginsburg: The main move for personal jurisdiction, traditionally, is the plaintiff must go to where the defendant is, no matter how inconvenient that is for the plaintiff. Jurisdiction is defendant­centered. You're trying to hold a defendant, you have to go where he is. Then the long­arm age comes about, and we have specific jurisdiction, which, by the way, is what you're urging. Alderson Reporting Company Official

Thomas C. Goldstein: Yes.

Justice Ginsburg: You're certainly not saying they have all­purpose jurisdiction over Walden.

Thomas C. Goldstein: No. Correct.

Justice Ginsburg: And this Court, as the McIntyre decision indicates, has been pretty careful about specific jurisdiction. And Miguel wasn't enough that machine blew up or cut somebody's fingers in New Jersey. They had to purposely avail themselves of wherever the ­­ the standard words are. And here, you're asking for ­­ really pushing this specific jurisdiction to the limit. The defendant has acted only in Georgia. He hasn't set foot outside the State.

Thomas C. Goldstein: Okay. So I don't think we are trying to push the bounds ­­ let me make one point about McIntyre and then try and correct the misimpression that I think that's been left, that there are a few contacts between Nevada and this case and hopefully prove to you that there are far more contacts between this tort and this forum than will be true in the overwhelming majority of cases that the lower courts confront. And the point I would make, Justice Ginsburg, and it's made by the plurality in McIntyre, is Alderson Reporting Company Official that there have always been special rules for intentional tort cases. That's the distinction, and that's why Calder comes out the way it does, citing restatement Section 32nd of the second ­­ the second restatement of the conflict of laws, and that is the reason ­­ it's not just made up. The reason there's a special rule for intentional torts is that the defendant knows he's hurting someone somewhere else and, therefore, expects to be haled into court. The view of the McIntyre plurality, of course, was that the overseas manufacturer there wasn't, itself, doing anything directed at the forum. But if I could just get to the very important point about ­­

Justice Alito: Before you move on from that point ­­

Thomas C. Goldstein: Yes.

Justice Alito: ­­ your ­­ your argument is dependent on the fact that the officer here knew that the ­­ the plaintiffs were residents of Nevada; is that right?

Thomas C. Goldstein: That they lived and worked there.

Justice Alito: Why should that make any Alderson Reporting Company Official difference? The conduct is the same; the injury is the same. What if he didn't know? Then there would be no personal jurisdiction.

Thomas C. Goldstein: That ­­ that is actually, generally, what the lower courts hold, and their reason is that the defendant is doing something, knowing that he may be haled into that court. It is a defendant­favoring rule that intends ­­ attempts to give predictability. Now, if that's wrong, it doesn't hurt my case because, as the case comes to you, it's not ­­

Justice Scalia: Well, you could say that about whatever rule we adopt. Once we adopt the rule, when ­­ the defendant will know that, if he violates that rule, he's going to be haled into court.

Thomas C. Goldstein: Justice Scalia, there is a ­­

Justice Scalia: I mean, it's sort of a self­fulfilling point you're making.

Thomas C. Goldstein: Right. It's almost like the Fourth Amendment reasonable expectations to privacy. There is a circularity here. But it's not entirely circular because we're talking about a specific State here. It's not that he knows that the plaintiffs might be ­­ live in Georgia or might live anywhere in the Alderson Reporting Company Official United States, it's a very specific State, and that's why it's not circular. Now, if I could just help you understand our view that there are a lot more contacts between this tort and Nevada than in the great, great ­­ at least 90 percent of the cases the lower courts are confronting. So here are the points that I would make about those contexts, and there are six, and I will try and be brief. The case involves money owned by Nevada residents, $30,000 of which originated in Nevada, and all of which was on its way to Nevada. Second, the defendant intentionally hurt the plaintiffs, knowing that they would lose access to the money in Nevada, where they lived and worked. Third, we will use documents in Nevada to prove that his action was intentional because it omitted the information that the defendant requested. This is not a ­­ us unilaterally sending money. At the Atlanta airport, he said, send us the proof that the funds are legitimate, that he requested and received from the plaintiffs in Nevada and that he learned in searching a Nevada law enforcement database, which is paragraph 79 of the complaint. The two last points I would make is that the Alderson Reporting Company Official plaintiffs will show that they were deprived of the money in Nevada until the Nevada lawyer they had to hire used records in Nevada to persuade the government to send the money to Nevada. And the plaintiffs in their case, of course, will show, because it is the fact that they are gamblers working in Las Vegas, that the economic injury occurred to them there. Now, if you think that's not enough, if you conclude that's not enough, you are closing the door absolutely to all of the internet cases because those are cases where someone sits at the computer and targets someone in another State. This ­­

Justice Alito: But, when you're talking about the internet, you're in a different world. But this is a ­­ the facts here are old­fashioned. Everything that happened here could have happened in 1920.

Thomas C. Goldstein: Yes.

Justice Alito: Could have happened in ­­ in the 19th century.

Thomas C. Goldstein: Yes.

Justice Alito: So I don't see what the internet has to do with this.

Thomas C. Goldstein: Justice Alito, you always Alderson Reporting Company Official tell us that you've got to write a legal rule, and there is no special personal jurisdiction rule, and the lower courts ­­

Justice Breyer: Yes. Well, there seems to be because it's hard to think of an internet case where a defendant wouldn't be having communications with people in the foreign State, wouldn't be inviting business, wouldn't be doing all kinds of things. So there are many kinds of internet cases, but I don't ­­ I don't automatically see, in deciding this, that we're deciding any on ­­

Thomas C. Goldstein: Justice Breyer, the kinds of internet cases ­­ and it's wrong for me to just say, "internet" ­­ the kinds of cases that I'm talking about are the fraud cases, the intentional tort cases ­­

Justice Breyer: Like what?

Thomas C. Goldstein: You steal ­­ you're sitting in Georgia ­­ you don't, but someone is sitting in Georgia, and they steal the identity of someone who's in Nevada.

Justice Breyer: I wouldn't do that. (Laughter.)

Thomas C. Goldstein: I'm ­­ exactly ­­ that's why I took it immediately back, recognizing the error.

Justice Sotomayor: He wouldn't know how. Alderson Reporting Company Official (Laughter.)

Thomas C. Goldstein: But there are bad people in the world, obviously, and those people do, with increasing and distressing frequency at ­­ with these new tools of communication, they are very, very capable of causing significant harm to someone else without actually do ­­ setting foot in the State. Now, I have to offer you a solution. Let me just be clear. I recognize that this can go either way because if I say, "internet cases," well, then I'm opening the door to potentially a very wide­ranging set of cases going into Nevada, and we have here the special case of the law enforcement officer, and I believe that I do have the solution. And that is, this is actually a case about transfer. It is not a case about jurisdiction and venue. This is the unusual case where the defendant filed a motion to dismiss and did not file a 1404 motion to transfer. And this case is a lot ­­ you should treat it like Atlantic Marine because what you need to do is recognize, I think, that there's the big category of jurisdiction. Where there is jurisdiction, there's a subset, there is venue. That's where you can file a lawsuit. That is not where the case is going to be Alderson Reporting Company Official litigated. And in these cases, what defendants uniformly do ­­ and the lower courts pay incredible attention to the fact that law enforcement officers are going to be witnesses or are the defendant. In these cases, the defendant comes in and says, okay, I recognize, technically, there's jurisdiction and venue, but let me tell you how disruptive it will be if I actually have to litigate the case here.

Justice Alito: Well, I don't understand what you're saying. You're saying that we should reverse the Ninth Circuit's dismiss ­­ the dismissal and send it back for the district court to consider whether the case should be transferred?

Thomas C. Goldstein: No, sir. I would not ­­ this is my judgment. I do not want it reversed. What I'm saying ­­

Justice Alito: I know that, so that's why I'm confused by what you're saying about transfer.

Thomas C. Goldstein: I'm trying to describe an opinion that you would write, and the opinion that I think you would write is this ­­ and it says, look, personal jurisdiction in the wake of Calder, particularly where there are contacts here, exists. Venue exists because several of these are events and Alderson Reporting Company Official omissions, including the injury that occurs in Nevada. But what we expect the lower courts to do in a case like this is to pay particular attention at the beginning of the case, as we do with qualified immunity, to have an efficient process in which the defendant can say ­­

Justice Ginsburg: But you are asking the Court to decide a big­ticket item, personal jurisdiction, and what ­­ the theory that you are proposing would apply not to ­­ just to Officer Walden, but it would be about as far out as any specific jurisdiction case I know. So the Court shouldn't say, well, jurisdiction, okay, venue, okay, but consider it transferring it to Georgia. That seems, to me, wild.

Thomas C. Goldstein: Justice Ginsburg, I am not trying to just skip over. I have talked for this entire time about why I think we are right on jurisdiction and venue, and I am pleased to return to the issue. What I'm suggesting to you is that I recognize that we can't have ­­ there are two ways of dealing with the prospect of a broad personal jurisdiction rule. One is to narrow it substantially. The second is to recognize that it doesn't determine where the case is going to ultimately be litigated. Alderson Reporting Company Official I will tell you, Justice Ginsburg, from personally reviewing all of the post­Calder cases in the Federal courts and the State courts, that the contacts here are much, much greater between Nevada and this tort than exists in the great majority of cases that the lower courts are confronting. And so if you ­­

Justice Ginsburg: Did ­­ did Calder have something to do with the notion that every defamation is ­­ that every publication is a tort where it occurs? There is something special about the libel cases. There was that theory that, wherever the paper that contains the libelous article ­­ wherever it is sent, each one of those places, the tort occurs there.

Thomas C. Goldstein: Two things about that. That is the rule for torts, not specifically ­­ it does ­­ it is true of libel, but it is true, as well, of fraud. The fraud occurs where the person is defrauded. This is straight from the Restatement. It's the ordinary common law rule. So the tort does happen where the victim is injured in libel and in a case like ­­

Justice Scalia: Well, but you are libeled wherever it is published. You don't have to be there where it's published. You are libeled wherever it is published. Alderson Reporting Company Official

Thomas C. Goldstein: And, Justice ­­ that's correct. And, Justice Scalia, this is exactly why ­­ you were asking the question, why is it that then­Justice Rehnquist's opinion in Calder has the discussion that the other side is focusing on about how the article was centered on California and how it came from California sources. Now, none of the holding of the case describes it, but you wondered ­­ and he has emphasized, my friend has, why is it in the opinion? And it's for the reason you have just given. And that is defamation and libel cases, when you are talking about the publication to the internet or publication nationwide like the National Enquirer, the lower courts have rightly focused on the fact, can we say that this isn't just directed to the United States?

Justice Scalia: So ­­ so you could say that Calder, far from being an expansive decision, was a narrowing decision. It said ­­ you know, there's jurisdiction not necessarily everywhere where the libel was published, which is where the injury occurs, but there is jurisdiction only ­­ only in California, where these other connections existed.

Thomas C. Goldstein: We are saying the same thing. I'm just not explaining my view of it well Alderson Reporting Company Official enough, and that is – the

Justice Scalia: Except it's harder for you to establish that the injury occurred in Nevada.

Thomas C. Goldstein: I don't think so, and let me try my best. All right. The reason these defamation cases about internet and national publications ­­ say the New York Times is sued for defamation. The Court was very concerned and the lower courts are very concerned that the publisher can't be sued in all 50 States. And so what the lowers courts have done in the wake of Calder is say, I know you published it to the whole country, National Enquirer, but is it fair to say you expected to be haled into court in California because there were special features about this defamation. Now, defamation and nationwide publication is very different from the other torts the lower courts confront, which, as was suggested in the first 30 minutes of questioning, I think, by Justice Kagan, are directed at a person, the "shoot the gun" example, the "defraud the victim" example.

Justice Scalia: But our jurisdiction cases have not been based on where you expected to be sued. You could expect to be sued anywhere if the State says you are going to be sued here. Alderson Reporting Company Official Our cases have focused on whether the State has jurisdiction, whether the State has enough connection with it to assert its power; not the expectation of the defendant, but the power of the State. That's what's going on here.

Thomas C. Goldstein: Justice Scalia, I agree with you, but I will say in my defense that, when the Court has said ­­ when we are trying to figure out if there are minimum contacts and whether it's consistent with fair play and substantial justice, the language the Court has used is, is it fair, because the defendant could reasonably be expected ­­ could reasonably expect to be haled into the court. That's true of purposeful availment cases like McIntyre. It's true of intentional tort cases. And that is, we measure fairness and whether you are getting process that is due to you procedurally by whether this is something that you could expect to happen to you ­­

Justice Scalia: That's your new test, just whether you could expect this to happen?

Thomas C. Goldstein: No, sir. No, sir. I have given you a specific test about where you have to intentionally injure the person, knowing that they will be injured there, and the injury has to arise there. Alderson Reporting Company Official And as I've said, the way in intentional tort cases that has to work is that the lower courts recognize that a tort has a wrong and an injury, and the injury is what makes the tort complete and the tort occurs where the victim is. Just take the "shoot the gun" example, right? The reason is that the person is injured there. It doesn't have to be that you shoot the gun, that the bullet travels across the State line, because the same thing can happen when money is taken out of your bank account.

Justice Breyer: What is the ­­ what are the elements of the ­­ of the second tort?

Thomas C. Goldstein: Yes. It is essentially a fraud claim. And that ­­

Justice Breyer: And what is the element?

Thomas C. Goldstein: That he knowingly submitted information that caused the government not to send us the money. False ­­

Justice Breyer: Injury element?

Thomas C. Goldstein: Yes. That is ­­

Justice Breyer: How do I find that? Because you see, in the fraud case, the element includes the victims being misled.

Thomas C. Goldstein: Yes. That's ­­ Alderson Reporting Company Official

Justice Breyer: But that's not necessarily true here. I wonder ­­

Thomas C. Goldstein: No, it's actually not the case that the victim has to be misled in fraud, Justice Breyer, so for example ­­

Justice Breyer: It has to be a misrepresentation ­­

Thomas C. Goldstein: Yes, a knowing misrepresentation.

Justice Breyer: ­­ material to.

Thomas C. Goldstein: Yes.

Justice Breyer: Material to?

Thomas C. Goldstein: Here, to the government's decision ­­

Justice Breyer: Not here, but material to ­­ normally, it has to be material to the obtaining the, say, of property.

Thomas C. Goldstein: Right. Or the refusal to return.

Justice Breyer: Now, where do I find the elements of the tort that you are alleging here?

Thomas C. Goldstein: The tort that we are alleging here is essentially common law fraud under Bivens. I can give you citations ­­

Justice Breyer: I don't see anything in the Alderson Reporting Company Official complaint that says anything like that. It just says ­­ where ­­ where do I look to see it?

Thomas C. Goldstein: Okay. The citations to the complaint about ­­ it would be paragraphs 99 to 101. "It's alleged to violate the Fourth Amendment and our due process rights to have submitted the false affidavit that caused the government not to send us the money." And if you were to conclude, Justice Scalia, that this injury doesn't arise here ­­ let me just tell you what the consequences of that are. And that is there are a large number of cases that arise constantly where people lose access to money, where they don't have the insurance proceeds sent to them or the Social Security checks or the IRS refunds.

Justice Kagan: But, Mr. Goldstein, as I understood what Mr. Bucholtz was saying, he was saying there is a distinction between an officer who commits a fraud in Georgia, when your money is in Nevada, and so he commits a fraud and he freezes your bank accounts in Nevada, versus he commits a fraud by filing this affidavit. But it is as to money that is located where he is, not where you are, but where he is in Georgia. That's the distinction that I understood him to be drawing. Alderson Reporting Company Official

Thomas C. Goldstein: Right.

Justice Kagan: What do you think about that?

Thomas C. Goldstein: It doesn't make any practical sense to me, and the money wasn't in Georgia. The money was in an account in Quantico, Virginia that belonged to the DEA. What difference does it make as a matter of personal jurisdiction between the following two cases and that is the defendant sitting in Georgia steals money from my bank account in Nevada or the defendant sitting in Georgia causes the government not to send me the money in Nevada ­­

Justice Breyer: Because one of the elements of the crime in the ­­ in the second case, no element of the crime or no element of the tort, it's only the injury, which isn't an element of the actual underlying behavior that gives rise to, and in the first case, it's the other. There is an element that takes place there. That's what I'm looking for.

Thomas C. Goldstein: Okay.

Justice Breyer: I'm looking for that. I'm not saying that I have it. That's why I asked you the question I did.

Thomas C. Goldstein: Right. I believe that the Alderson Reporting Company Official elements of the tort that Justice Kagan is describing are the same elements that I am talking about here. It's just where the money starts.

Chief Justice Roberts: What ­­ what if the plaintiffs in this case didn't leave Georgia?

Thomas C. Goldstein: Yes.

Chief Justice Roberts: They said, look, I'm not leaving until I get my money back, and I'm going to get my money back as soon as the lawyer sends us the receipts or whatever it is. Is that a different case?

Thomas C. Goldstein: Yes, it is a different case, Mr. Chief Justice. And the lower courts say the real question is, where ­­ is this the kind of injury that will arise where the Plaintiff lives and works. And any case ­­

Chief Justice Roberts: I thought your arguments were, basically, it does arise where he lives and works because it is in Nevada. And he still lives and works in Nevada, even if he stays in Georgia and says, I'm not leaving until I get the money.

Thomas C. Goldstein: No, I ­­ that is ­­ for example, on our seizure claim, we acknowledge that, at the very least, there wouldn't be venue. And there's another difference, in addition to the fact that they had returned to Nevada and they had returned to living Alderson Reporting Company Official and working. And that is, in our actual case, we have the documents that are sent at his request from Nevada. We have the fact that he searches the Nevada law enforcement databases. And we have the fact that the money is going to be sent by the government to Nevada. It's requested by their Nevada lawyer, sending documents from Nevada. And so those are ­­ if we think of Calder as a case in which there's not merely injury in California, but a few extra factors that were in California, that's much more this case than it is any of the other cases that the lower courts are confronting. I would just discourage the Court, if I could, from ­­

Justice Ginsburg: Except, Mr. Goldstein ­­

Thomas C. Goldstein: Yes.

Justice Ginsburg: ­­ it ­­ it is of no consequence to Walden whether this person is from Alaska or Nevada. In Calder, the article was about a person in California. The sources came from California. The paper had its principal circulation in California. It seems to me there's nothing resembling that in this case.

Thomas C. Goldstein: Justice Ginsburg, to my Alderson Reporting Company Official mind, what resembles it are the documents that go from Nevada to the defendant, and we think that's a ­­ specific to the fact that it was a libel and defamation case. Thank you.

Chief Justice Roberts: Thank you, counsel. Mr. Bucholtz, you have four minutes remaining. REBUTTAL ARGUMENT OF JEFFREY S. BUCHOLTZ ON BEHALF OF THE PETITIONER

Jeffrey S. Bucholtz: There was a lot of talk about intentional torts being different, and ­­ and how there should be a different rule in intentional torts. And I want to start just by ­­ by emphasizing the implications of that. The other side is putting all their eggs in the basket of what's in Officer Walden's mind, triggering some different personal jurisdiction inquiry. And my friend even referred to qualified immunity by analogy, but I think that analogy is very important. And it shows why it would be unworkable to make personal jurisdiction turn on what's allegedly in the defendant's mind. This Court initially created qualified immunity on that model as a ­­ as a ­­ based on subjective good faith. That turned out not to work Alderson Reporting Company Official because subjective good faith ­­

Justice Sotomayor: Write a ­­ counsel, write a holding that takes care of your case without putting at risk the internet cases that he's talking about.

Jeffrey S. Bucholtz: Justice Sotomayor, I think there is absolutely no reason the Court needs to address internet cases or any other cases involving modern technology. This case is ­­ the most modern technology involved in this case, I think, is a dog sniff at the airport. There's just no reason for the Court to address any of those ­­

Justice Sotomayor: Counsel, your adversary is right. We write rules that get applied to different concepts.

Jeffrey S. Bucholtz: Right.

Justice Sotomayor: So write the holding for me that can't be just plaintiff ­­ defendant's activities because Calder did more than just defendant's activities, so write a different ­­ write the holding.

Jeffrey S. Bucholtz: Of course, Justice Sotomayor. I understand there has to be a rule, and the rule is here there is ­­ there's tangible property. This isn't a case about property with no real­world presence that only exists on a server somewhere. Alderson Reporting Company Official This is a case about cash that was in a bag, and the bag was in Atlanta, on the plaintiff's person in Atlanta. It was seized in Atlanta. And the only effect ­­

Justice Kagan: I'm sorry. So there'd be a difference if the bag had been shipped to Washington, D.C.? And ­­ you know, money is ­­ is fungible. Money is everywhere and nowhere. So it ­­ it seems as though money is a bit different from a gold watch, that ­­ that it was ­­ it's only contingent that the money remained in Atlanta, rather than being shipped to a bank someplace else.

Jeffrey S. Bucholtz: Well, I think it's not contingent ­­ and from Officer Walden's perspective, I think it's incidental and contingent that the plaintiffs happened to be from Nevada, and that's where the effects of the seizure or the continued seizure or the delay in return were felt. But I think to ­­ to try to answer, Justice Sotomayor, your question and your question earlier about freezing a bank account in other kind of electronic cases or internet cases, where different technologies are involved, maybe there's a difference between freezing a bank account in Nevada. Maybe that can be said to be something that Alderson Reporting Company Official occurs in Nevada ­­ that's reaching into Nevada to cause a real effect in Nevada, to cause something to happen in Nevada, which is different from seizing cash in Atlanta, knowing and failing to return it, knowing that the failure to return it is going to have an impact wherever the plaintiffs are, which presumably will include where they live, which is Nevada and California. So maybe there's a way to draw a line between freezing a bank account in Nevada, or in Bancroft and Masters and Dudnikov, the cases that my friend relied on, there were real­world activities happening in the forum State. In Dudnikov, there were goods. There were ­­ there were fabric prints that existed in the real world. And they were being ­­ they were in Colorado, and they were to be sold in Colorado. And the defendant ­­

Justice Kennedy: Could this record or these complaints be read to support the conclusion that the injury was substantially altered by the false affidavit, based on the misuse of the information received from Nevada?

Jeffrey S. Bucholtz: Well, Justice Kennedy, I think the complaint ­­ again, we're not challenging the ­­ the reading by the lower courts that there's a Alderson Reporting Company Official claim based on the affidavit that's distinct from the claim based on the seizure. On the other hand, the complaint only has a Fourth Amendment claim in it. That's the only source of law that the complaint relies on. And the Fourth Amendment injury was complete upon the seizure ­­ upon the search and seizure which occurred in Atlanta. The quantum of damages wasn't known yet at that time because the plaintiffs didn't know whether they'd get the money back or when or what might happen in­between. But that Fourth Amendment injury occurred then and there. And so the fact that maybe their consequential damages are higher because they didn't have the use of the money for longer, as opposed to shorter, I suppose that could increase their damages. But it doesn't fundamentally change the nature of this case as one that has no meaningful connection between Officer Walden's conduct, all of which occurred in Atlanta and ­­ and Nevada.

Justice Scalia: You say the affidavit wouldn't give rise to a Fourth Amendment claim.

Jeffrey S. Bucholtz: I think Judge Ikuda made that point below, Justice Scalia, and I would agree with that, that ­­ that, however, is what the complaint Alderson Reporting Company Official alleges, and we're here on personal jurisdiction and venue and not on the merits of the ­­ of the complaint. So, again, the complaint alleges that there's this affidavit ­­ may I finish, Mr. Chief Justice?

Chief Justice Roberts: You can finish your sentence.

Jeffrey S. Bucholtz: The complaint alleges that there is this affidavit written in Georgia for the purpose of seizing funds that were seized in Georgia, that were to be forfeited in Georgia. The only connection to Nevada is the fact that the plaintiffs allegedly felt the impact there. Under any of this Court's precedents, that's not sufficient. Thank you, Your Honors.

Chief Justice Roberts: Thank you, counsel. Counsel. The case is submitted. (Whereupon, at 11:04 a.m., the case in the above­entitled matter was submitted.)