Wednesday, March 27, 2013

Should Punxsutawney Phil Take the Heat for the Cold?

As I sat bundled in a fleece sweater trying to ward off the late-March cold with a steaming cup of coffee, an interesting AP headline caught my eye:  “Punxsutawney Phil 'indicted' over spring forecast.”

The AP reported that Ohio authorities have issued an “indictment” of the famous Pennsylvania groundhog.  “’Punxsutawney Phil did purposely, and with prior calculation and design, cause the people to believe that spring would come early,’ Mike Gmoser, the prosecutor in southwestern Ohio's Butler County, wrote in an official-looking indictment.”  “Gmoser wrote that Punxsutawney Phil is charged with misrepresentation of spring, which constitutes a felony ‘against the peace and dignity of the state of Ohio.’” (last accessed March 25, 2013.)

I was about to jump on the bandwagon, until I saw the poor rodent’s crime is punishable by death.   Even tongue-in-cheek it’s a little extreme, I thought.  I glanced out the window to see fresh snow starting to float through the air.  But, civil tort claims on the other hand…. intentional infliction of emotional distress, fraud and misrepresentation…  As the list of possible causes of action started piling up in my mind, so did all of Phil’s defenses.  Given my defense-oriented nature, I realized it was unlikely that I’d even get past the pleading stage of my lawsuit.

Jurisdiction would be my first hurdle.  For the Michigan courts to obtain general personal jurisdiction over Phil, I would have to demonstrate that (1) he was present in Michigan at the time process was served; (2) he was domiciled in Michigan at the time process was served; or (3) he consented to service of process.  MCL §600.701.  Although I’m not an expert in groundhog habitats, I do know that Phil’s den is located two states away, and it is highly unlikely any tunnels he may have created stretch the distance to Michigan.  Moreover, I’m quite positive the little guy is not going to consent to jurisdiction in Michigan, especially now that he’s hired a lawyer.

With general jurisdiction clearly lacking, the next avenue would be Michigan’s second jurisdiction statute, which allows limited personal jurisdiction over an individual under certain circumstances.  Michigan’s long-arm statute, MCL §600.705, provides certain relationships with the state may be sufficient to create personal jurisdiction, including subsection (2):  “the doing or causing an act to be done, or consequences to occur, in the state resulting in an action for tort.”  The Michigan courts have developed a three-part inquiry to determine whether a nonresident defendant has sufficient minimum contacts with Michigan to support the exercise of limited personal jurisdiction and meet the due process requirements. “First, the defendant must have purposely availed himself of the privilege of conducting activities in Michigan, thus invoking the benefits and protections of this state's laws.  Second, the cause of action must arise from the defendant's activities in Michigan. Finally, the defendant's activities must have a substantial enough connection with Michigan to make the exercise of jurisdiction over the defendant reasonable.”  Walter v. M Walter & Co., 179 Mich. App. 409, 413 (Mich. Ct. App. 1989). 

Once I conducted a realistic analysis of Phil’s actions, I knew obtaining limited personal jurisdiction was impossible.  On February 2, 2013 in a small town in Pennsylvania, this hibernating groundhog was forced awake, only to pop out of his den to an entire country of onlookers wondering if he would see his shadow.  Phil’s acts had nothing to do with Michigan.  I could never legitimately argue that Phil purposefully availed himself of the privilege of conducting activities in Michigan.  And, even though I do not practice criminal law and I’m not licensed in Ohio, it seems to me that the Butler County prosecutor’s charges against Phil may suffer from the same deficiency. 

When I finally left the coffee shop and headed toward my frozen car, I was forced to admit that while I may still curse poor Phil for his failed prediction, I cannot blame him for prematurely storing away my ice scraper.