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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

MATTHEW FINSTON, 

Plaintiff, 

v. 

TAYLOR CHRISTOFFERSON, ET AL., 

Defendants. 

Case No. 15-12013 

SENIOR U.S. DISTRICT JUDGE 

ARTHUR J. TARNOW

U.S. MAGISTRATE JUDGE 

DAVID R. GRAND

 / 

ORDER DENYING AS MOOT DEFENDANT FARRELL’S MOTION TO DISMISS [7];

DENYING AS MOOT DEFENDANT CARY’S MOTION TO DISMISS [9]; GRANTING 

DEFENDANT FARRELL’S MOTION TO DISMISS [14]; GRANTING DEFENDANT 

CARY’S MOTION TO DISMISS [15]; GRANTING DEFENDANT CX3 HOLDINGS’

MOTION TO DISMISS [18]; AND ORDERING PLAINTIFF TO SHOW CAUSE WHY 

REMAINING DEFENDANTS SHOULD NOT BE DISMISSED

 Plaintiff brought this suit on June 4, 2015, and filed an Amended Complaint 

[Dkt. #10] on July 30, 2015. On August 13, 2015, Defendant Farrell filed a 

Motion to Dismiss [14]. The same day, Defendant Cary filed a nearly identical 

Motion to Dismiss [15].1

 On September 8, 2015, Plaintiff filed a Response [16] to 

both motions, to which Defendants Farrell and Cary filed a joint Reply [19, 20] on 

 

1

 Defendants Farrell and Cary filed earlier Motions to Dismiss [7, 9] prior to the 

filing of Plaintiff’s Amended Complaint. These original motions were superseded 

by the filing of the Amended Complaint and are therefore DENIED AS MOOT. 

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September 22, 2015. Defendant CX3 Holdings filed its own Motion to Dismiss 

[18] on September 8, 2015. On September 30, 2015, Plaintiff filed a Response 

[23] to Defendant CX3’s motion, to which Defendant CX3 filed a Reply [26] on 

October 13, 2015. The Court finds the motion suitable for determination without a 

hearing in accord with Local Rule 7.1(f)(2). 

 For the reasons stated below, Defendant Farrell’s Motion to Dismiss [14], 

Defendant Cary’s Motion to Dismiss [15], and Defendant CX3 Holdings’ Motion 

to Dismiss [18] are GRANTED. Further, Plaintiff is ordered to show cause, 

within 14 days after issuance of this Order, why Defendants Christofferson and 

Bachman should not be dismissed for failure to effectuate service. 

FACTUAL BACKGROUND

 Plaintiff Matthew Finston is a New York resident who has published 

numerous online articles on investing and corporations. In his articles, he has 

occasionally criticized Creative Edge Nutrition, Inc. (CEN), a corporation 

incorporated in Nevada and headquartered in Michigan. CEN, which trades under 

the symbol FITX, is the parent company of CEN Biotech, Inc., a Canadian 

subsidiary.2

 Defendants Cary, Farrell, Christofferson, and Bachman are CEN 

 

2

 Plaintiff concedes that his Amended Complaint incorrectly refers to CEN Biotech 

where it should refer to CEN. 

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shareholders and residents of Texas, Arizona, Kansas, and New Mexico, 

respectively. 

 In at least one article, Plaintiff expressed concern regarding the amount of 

CEN shares that were to become unrestricted in May 2015. On May 8, 2015, 

CEN’s restricted shares became freely tradeable. The same day, an article entitled 

“Potential Criminal Indictment of Stock Basher Matthew Finston” was published 

on www.mmj.today. The article accused Plaintiff of engaging in fraud to 

manipulate the price of CEN stock. The article identified its author only as 

“Admin.” Defendant CX3, a limited liability company with its principal place of 

business in Georgia, is the sole owner of mmj.today, the website hosting the 

article. 

ANALYSIS

 Plaintiff brings claims for defamation and false light invasion of privacy. He 

alleges that Defendants were responsible for the online publication of the May 8, 

2015 article falsely accusing him of fraud. He alleges that Defendants published 

the accusations for the purpose of discrediting Plaintiff’s concerns about the 

quantity of CEN shares being released in the marketplace, thereby reassuring CEN 

stakeholders about the value of CEN stock and preserving the value of Defendants’ 

shares. 

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 Defendants move to dismiss Plaintiff’s claims under Federal Rule of Civil 

Procedure 12(b)(2) on the grounds that the Court lacks personal jurisdiction over 

them. In the alternative, Defendants move for dismissal under Rule 12(b)(3) on the 

grounds of improper venue. Defendants’ briefing all but ignores their venue 

argument, which the Court therefore considers forfeited. See e.g., Hayward v. 

Cleveland Clinic Found., 759 F.3d 601, 618 n.9 (6th Cir. 2014) (citing McPherson 

v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997)). “When, as here, a district court 

rules on a jurisdictional motion to dismiss made pursuant to Rule 12(b)(2) without 

conducting an evidentiary hearing, the court must consider the pleadings and 

affidavits in a light most favorable to the nonmoving party.” Beydoun v. Wataniya 

Restaurants Holding, Q.S.C., 768 F.3d 499, 504 (6th Cir. 2014) (quoting 

CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th Cir. 1996)) (internal 

quotation marks and brackets omitted). The nonmoving party nevertheless bears 

the burden of establishing jurisdiction. Id. (citing CompuServe, 89 F.3d at 1261–

62). 

 “A federal court’s exercise of personal jurisdiction in a diversity of 

citizenship case must be both (1) authorized by the law of the state in which it sits, 

and (2) in accordance with the Due Process Clause of the Fourteenth Amendment.” 

Id. (quoting Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 888 (6th Cir. 

2002)). Defendants do not argue that the Court’s exercise of personal jurisdiction 

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would conflict with Michigan law, but they argue that it would violate the Due 

Process Clause. “For a State to exercise [specific personal] jurisdiction consistent 

with due process, the defendant’s suit-related conduct must create a substantial 

connection with the forum State.”3

 Walden v. Fiore, 134 S. Ct. 1115, 1121 (2014). 

 In Walden, the Supreme Court cited its previous decision in Calder v. Jones, 

465 U.S. 783 (1984), as an illustration of personal jurisdiction principles’ 

application to intentional torts. Id. at 1123. The Court summarized Calder as 

follows: 

 [A] California actress brought a libel suit in California state 

court against a reporter and an editor, both of whom worked for the 

National Enquirer at its headquarters in Florida. The plaintiff’s libel 

claims were based on an article written and edited by the defendants 

in Florida for publication in the National Enquirer, a national weekly 

newspaper with a California circulation of roughly 600,000. 

 We held that California’s assertion of jurisdiction over the 

defendants was consistent with due process. Although we recognized 

that the defendants’ activities focused on the plaintiff, our 

jurisdictional inquiry focused on the relationship among the 

defendant, the forum, and the litigation. Specifically, we examined the 

various contacts the defendants had created with California (and not 

just with the plaintiff) by writing the allegedly libelous story. 

 We found those forum contacts to be ample: The defendants 

relied on phone calls to California sources for the information in their 

article; they wrote the story about the plaintiff’s activities in 

California; they caused reputational injury in California by writing an 

allegedly libelous article that was widely circulated in the State; and 

the brunt of that injury was suffered by the plaintiff in that State. In 

sum, California was the focal point both of the story and of the harm 

 

3

 Plaintiff has not argued that any Defendant has sufficient contacts with Michigan 

to be subject to general jurisdiction there. 

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suffered. Jurisdiction over the defendants was therefore proper in 

California based on the effects of their Florida conduct in California. 

Id. (emphasis added) (internal citations, quotation marks, and brackets omitted). In 

Walden, the Court clarified that “where the plaintiff experienced a particular injury 

or effect” is not the proper question, since “[r]egardless of where a plaintiff lives or 

works, an injury is jurisdictionally relevant only insofar as it shows that the 

defendant has formed a contact with the forum State.” Id. at 1125. Thus, what 

mattered in Calder was that the article’s injury to “the plaintiff’s reputation in the 

estimation of the California public,” combined with “various facts that gave the 

article a California focus,” sufficiently connected the defendants’ conduct to 

California to support personal jurisdiction there. Id. at 1124. 

 The Court concludes that it lacks personal jurisdiction over Defendants. 

Plaintiff relies on Calder, arguing that Defendants’ article had the effect (and 

purpose) of injuring his reputation in the estimation of CEN stakeholders residing 

in Michigan. However, under the Walden Court’s interpretation, the effect of the 

Calder article on the California public was sufficient to support jurisdiction only 

when combined with “various facts that gave the article a California focus”— for 

instance, the article was about the plaintiff’s activities in California and based in 

information obtained from phone calls to California sources. Id. at 1123–24. 

Here, no comparable facts give Defendants’ article a Michigan focus. Cf. Reynolds 

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v. International Amateur Athlete Federation, 23 F.3d 1110, 1120 (6th Cir. 1994) 

(distinguishing Calder on the grounds that allegedly defamatory press release 

concerned the plaintiff’s activities outside of the forum state, the release’s sources 

were outside the forum state, and the plaintiff’s reputation was centered outside of 

the forum state). Plaintiff urges the Court to follow Rickett v. Smith, No. 1:14CV–

70–JHM, 2014 WL 5520626 (W.D. Ky. Oct. 31, 2014), which Plaintiff claims is 

factually analogous. However, the court in Rickett distinguished Reynolds on the 

grounds that the defendants’ contacts with the forum state, which included hiring 

the plaintiff in the forum state to work in the forum state, “involve[d] more than 

the sole point of contact being the posting of a statement on a website.” 2014 WL 

5520626, at *6. The “more” is missing here. Accordingly, the Court grants 

Defendants Farrell, Cary, and CX3’s motions to dismiss for lack of personal 

jurisdiction. 

 The analysis above leads the Court to conclude that it may not exercise 

personal jurisdiction over nonmoving Defendants Christofferson and Bachman 

either. But the absence of personal jurisdiction is a waivable defense. Days Inns 

Worldwide, Inc. v. Patel, 445 F.3d 899, 905 (6th Cir. 2006). The Court therefore 

deems it inappropriate to dismiss these defendants for lack of personal jurisdiction 

sua sponte. However, there is no sign in the record that Defendants Christofferson 

and Bachman were successfully served within 90 days after the filing of Plaintiff’s 

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complaint (or the filing of his Amended Complaint). Federal Rule of Civil 

Procedure 4(m) therefore authorizes the Court to dismiss the action against 

Defendants Christofferson and Bachman without prejudice on the Court’s own 

motion, after notice to Plaintiff. The Court will do so if Plaintiff does not, within 

14 days after issuance of this Order, show good cause for the failure to effectuate 

service. The Court notes that under Local Rule 7.1(h)(1), the same 14-day 

deadline applies to any motion for reconsideration of this Order. The Court invites 

Plaintiff to combine his show cause response with his motion for reconsideration, 

should he choose to file both. 

 Finally, Defendants Farrell, Cary, and CX3 ask the Court to award costs 

under 28 U.S.C. § 1919, which provides that “[w]henever any action or suit is 

dismissed in any district court ... for want of jurisdiction, such court may order the 

payment of just costs.” It is unclear whether this statute authorizes payment of 

costs where dismissal is based on the absence of personal jurisdiction, as opposed 

to subject-matter jurisdiction. Conn v. Zakharov, No. 1:09 CV 0760, 2010 WL 

2293133, at *1 (N.D. Ohio June 4, 2010) (unpublished) (acknowledging that there 

is no Sixth Circuit precedent on this point, but relying on cases from other districts 

to order payment of costs after dismissal for lack of personal jurisdiction). 

Because the statute refers to the dismissal of an action, rather than dismissal of a 

defendant from an action, the Court is inclined to believe that it speaks to subject2:15-cv-12013-AJT-DRG Doc # 27 Filed 02/19/16 Pg 8 of 9 Pg ID 433
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matter jurisdiction and not personal jurisdiction. Regardless, the statute confers 

discretion on the Court, rather than mandating an order of costs. Even if the statute 

applies here, the Court declines to exercise the discretion it confers. 

CONCLUSION

 For the reasons stated above, 

IT IS ORDERED that Defendant Farrell’s Motion to Dismiss [14], 

Defendant Cary’s Motion to Dismiss [15], and Defendant CX3 Holdings’ Motion 

to Dismiss [18] are GRANTED. 

IT IS FURTHER ORDERED that Plaintiff will show cause, within 14 

days after issuance of this Order, why Defendants Christofferson and Bachman 

should not be dismissed for failure to effectuate service. 

SO ORDERED. 

s/Arthur J. Tarnow 

 Arthur J. Tarnow 

Dated: February 19, 2016 Senior United States District Judge 

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