Category Archives: Personal Jurisdiction

Zippo test not applied to determine general personal jurisdiction

In the recent decision in Heidle v. The Prospect Reef Resort, Ltd., the U.S. District Court for the Western District of New York has declined to apply the well-known test set forth in Zippo Manufacturing Co. v. Zippo Dot Com, Inc. to determine whether to exercise general personal jurisdiction over an out-of-state defendant. The court held that notwithstanding other circuits’ application of the Zippo test in a general jurisdiction analysis, the Second Circuit applies such “sliding scale” test only in the context of a specific jurisdiction analysis.

Plaintiff Heidle, a New York resident, filed a diversity personal injury action in federal court in New York against Prospect Reef Resort, a company located in the British Virgin Islands. Prospect Reef moved to dismiss for lack of personal jurisdiction. The court granted Prospect Reef’s motion.

As part of her argument, Heidle had argued that the Zippo “sliding scale” test subjected Prospect Reef to personal jurisdiction in New York because Prospect Reef operated a website accessible in New York. While the Zippo test examines the level of interactivity of a company’s website to determine whether the company’s actions thereby provide sufficient contacts with the forum state for the exercise of personal jurisdiction, such an examination was not warranted in this case.

The question before the court was whether it could exercise general personal jurisdiction over the Prospect Reef. The Zippo case provides an analysis of whether specific personal jurisdiction would be proper. The court noted that “the Zippo analysis does not replace the traditional approach for determining the existence of personal jurisdiction over a certain defendant.” Instead of analyzing whether Prospect Reef’s website was “passive,” “active,” or “interactive” as required by Zippo, it applied traditional due process factors to determine that it did not have personal jurisdiction over Prospect Reef.

Heidle v. The Prospect Reef Resort, Ltd.
, 2005 WL 563085 (W.D.N.Y., February 28, 2005).

Application of “effects test” brings pool table manufacturer out from behind the personal jurisdiction 8-ball

In the case of Brunswick Bowling & Billiards Corp. v. Pool Tables Plus, Inc., the U.S. District Court for the Northern District of Illinois held that the listing of the defendant’s company name, address and email address on two websites did not give rise to personal jurisdiction under the “sliding scale” test. Application of the effects test to defendant’s non-Internet activities, however, was sufficient for the exercise of personal jurisdiction.

Brunswick sued its competitor Pool Tables Plus in the Northern District of Illinois for various Lanham Act and state law violations, accusing Pool Tables Plus of misrepresenting both the relationship between Brunswick and Pool Tables Plus and the quality of Brunswick’s products. Pool Tables Plus moved to dismiss for lack of personal jurisdiction, submitting an affidavit stating it was “completely devoid of Illinois contacts.”

In determining the question of personal jurisdiction, the court began by applying the “sliding scale” test articulated in the case of Watchworks v. Total Time, Inc., 2002 WL 424631 (N.D.Ill. 2002). Under this test, the court determined that the presence of defendant’s mailing address and email address on websites found at http://www.superpages.com and http://www.pooltablesflorida.com did not make the defendant’s business conducted over the Internet sufficiently “active” to show minimum contacts with Illinois. Thus, the court declined to exercise personal jurisdiction on this basis.

Under the “effects test,” however, set forth in the case of Riddell, Inv. v. Impact Protective Equip., L.L.C., 2003 WL 21799935 (N.D.Ill. 2003), the court determined that the exercise of personal jurisdiction would be proper. The defendant’s non-Internet activities, namely, making representations to its customers about Brunswick, caused harm to Brunswick that was felt in Illinois. Furthermore, Illinois had an interest in adjudicating a case in which harm to a business within its borders was alleged.

Even though the court held that it could exercise personal jurisdiction over Pool Tables Plus, it dismissed the case on venue grounds.

Brunswick Bowling & Billiards Corp. v. Pool Tables Plus, Inc., 2005 WL 396304 (N.D.Ill., February 16, 2005).

Directing e-mail to residents of Texas gives rise to personal jurisdiction

The case of Middlebrook v. Anderson is a recent case coming to us from a federal court in Texas, and like the recent case of Bible & Gospel Trust v. Wyman discussed on this site, it addresses the issue of whether the court could properly exercise personal jurisdiction over an out of state defendant based on his conduct over the Internet. Unlike the Minnesota federal court in Bible & Gospel Trust, the Texas court in Middlebrook determined that the exercise of personal jurisdiction over the defendant was proper. The Texas court, however, had plenty more to hang its hat on, as the defendant had done much more to direct his activities to the forum state.

Plaintiffs sued Anderson, a California resident, for defamation after they discovered he had placed on his website a story that accused plaintiffs of various types of wrongdoing and illegal conduct. The story also told of plaintiff Middlebrook’s 2003 arrest for child indecency, for which he was never indicted. Anderson also posted on his website a solicitation for information about Middlebrook.

Anderson’s conduct did not stop with merely posting defamatory statements on his website. Perhaps most central to the court’s decision to exercise personal jurisdiction over Anderson were the numerous emails he sent to addresses that he had obtained at a seminar in Texas. The emails repeated many of the accusations which were posted on the website.

These activities of the defendant were directed toward Texas, and served to establish sufficient contacts with the forum state for the exercise of personal jurisdiction. The court held that through his actions, Anderson purposefully availed himself to the law of the forum state, and that the exercise of personal jurisdiction over him comported with traditional notions of fair play and substantial justice.

Middlebrook v. Anderson, 2005 WL 350578 (N.D.Tex. Feb. 11, 2005).

Minnesota Federal court declines to exercise personal jurisdiction over Winnipeg website operator

In an action for defamation, copyright infringement and business interference, the U.S. District Court for the District of Minnesota declined to exercise personal jurisdiction over a website operator based in Winnipeg, Manitoba, holding that Minnesota’s long arm statute precluded such exercise as to the defamation claim, and that the Zippo and “effects” tests did not warrant exercise of personal jurisdiction as to the copyright and business interference claims.

The plaintiffs in this case were a religious organization and the owner of the copyright in the organization’s religious writings. Plaintiffs filed suit in Minnesota against a website operator located in Winnipeg, Canada, claiming that they were defamed through a website maintained by defendant, and that the defendant infringed the plaintiffs’ copyright and interfered with their business relations. The defendant moved to dismiss, claiming that he did not have sufficient contacts with Minnesota for the court’s exercise of jurisdiction over him. The court agreed, and dismissed the action.

The court concisely reviewed the standards it applies when determining whether to exercise personal jurisdiction over an out of state defendant. It covered the threshold questions of whether the facts presented satisfy the forum’s long arm statute and whether the court’s exercise of jurisdiction would be fair in accordance with due process.

There were two main components of the court’s analysis. It first analyzed the question of jurisdiction in relation to the defamation claim and then went on to answer the question of whether the defendant would be subject to personal jurisdiction in the copyright infringement and business interference claims.

In general, Minnesota’s long arm statute provides that a Minnesota court can exercise personal jurisdiction over an out of state defendant if that defendant is alleged to have committed and act outside of Minnesota which causes injury in Minnesota. There is a specific exception, however, when the cause of action lies in defamation. In this case, even though the website was created in Minnesota, the defendant was never in Minnesota for purposes of maintaining the website, and everything he did to maintain the site he did from his home in Canada. The court held that because the defendant’s “acts” in maintaining the site were committed in Winnipeg, where his computer was located, the plaintiffs could not establish that the court should exercise personal jurisdiction as to the defamation claim.

The court then considered whether it could exercise personal jurisdiction over the defendant as to the copyright infringement and business interference claims. The court applied the well-known Zippo test first articulated in the case of Zippo Mfg. Co. v. Zippo Dot Com, Inc. 952 F.Supp. 1119 (W.D.Pa. 1997). This test focuses on the nature and quality of commercial activity that an entity conducts over the Internet. The greater the amount of interactivity of a website, the more likely a court will determine it can exercise personal jurisdiction over the entity owning the website. In this case, there was no commercial activity on the site, and the interactivity of the site consisted only of a users forum and a guestbook. The court found that this was not sufficient to warrant exercise of personal jurisdiction under the Zippo test.

The analysis did not stop there, however. The court went on to apply the “effects” test, articulated in the case of Calder v. Jones, 465 U.S. 783 (1984). This test essentially provides that a court’s exercise of personal jurisdiction over an out of state defendant is proper if the defendant’s intentionally tortuous activity is specifically directed to the forum state and the plaintiff feels the “brunt of the harm” within the forum state. In the present case, the court determined that the plaintiffs did not pass the effects test, because the website was directed at the Brethren organization, and not specifically at Minnesota or its residents.

Bible & Gospel Trust v. Wyman, — F.Supp.2d —, 2005 WL 273162 (D.Minn. January 31, 2005).