Two Recent Social Media Defendants Avoid Personal Jurisdiction
By Eric Goldman
As I’ve said repeatedly, I try to stay away from blogging Internet personal jurisdiction cases. It’s hard to get excited about any civil procedure topic (no offense to the litigators and Civ Pro profs reading the blog!), and it’s rare that a new case represents a major change in the Internet jurisdiction jurisprudence. Instead, most cases are very much bound up in their specific facts. Nevertheless, I accumulated two more-interesting-than-average personal jurisdiction cases to share with you now.
Lifestyle Lift Holding, Inc. v. Prendiville, 2011 WL 830280 (E.D. Mich. March 9, 2011)
Pugnacious plaintiff Lifestyle Lift is at it again. The background from the opinion:
In February of 2009, Prendiville posted the following message on a question and answer message board at Realself.com: “Lifestyle Lift: Its just a marketing entity. Lifestyle Lift can be equated to an ‘Ask Gary’ in legal terms or a “1-800 Dentist.” In January of 2010, Prendiville posted more messages on the same website: “Many of the results shown appear to have been multi-hour procedures and are not the results that your average Lifestyle Lift journeyman will be able to achieve in ‘about an hour.'” “[C]hoose the Surgeon, not some hyped-up quickie procedure performed by journeymen surgeons .” In April of 2010, Prendiville posted on the site again: “Why would any surgeon work for Lifestyle Lift? There are two reasons, because a successful surgeon is very unlikely to choose this career path: a) just out of training and need the business, b) have been in practice for years and never attained any degree of success.”
Lifestyle Lift sued Prendiville for a Lanham Act violation and related claims. The court dismissed the suit for lack of personal jurisdiction:
LLH has failed to demonstrate that Prendiville’s page on RealSelf is sufficiently interactive to establish purposeful availment in Michigan. LLH has also failed to show that Prendiville purposefully availed itself of acting or producing consequences in Michigan because his actions are not sufficient focused on the state nor would the state feel the brunt of any alleged injury.
Selected prior blog posts on Lifestyle Lift:
– Lifestyle Lift Tries to Use TM Law to Shut Down User Discussions; Website Countersues for Shilling–Lifestyle Lift v. RealSelf. As you can see, having failed to shut down RealSelf’s discussion of Lifestyle Lift generally, Lifestyle Lift may be going after individual RealSelf contributors.
Shymatta v. Papillon, 2011 WL 1542145 (D. Idaho April 21, 2011)
Shymatta is a retailer operating at celljunkie.com. He brought a trademark infringement suit against Papillion for running a blog that reviews cellphones at cellphonejunkie.com. The court dismissed the lawsuit for lack of personal jurisdiction. The court’s relevant discussion:
Mr. Shymatta’s argument that Mr. Papillon maintains a commercially interactive website available to Idaho users that falls at the extreme end of the Zippo sliding scale is unavailing. Mr. Papillon does not manufacture, design, stock, sell, or ship any cell phone related product; when he reviews a cell phone or related product, he provides a link to a retailer that sells the product for the ease of the reader. No profit is received by Mr. Papillon for these links….The fact that Mr. Papillon sells a small number of premium podcast subscriptions advertised on his website does not render it commercially active. To subscribe, an interested party must e-mail Mr. Papillon separately; the transaction is not conducted on the website….The podcasts are also available for free listening on the website. At most, Mr. Papillon’s website falls into the middle ground of the Zippo sliding scale because there is some minimal user interactivity. Visitors to the website may post their own personal comments at the end of Mr. Papillon’s blog posts. Such minimal interactivity, coupled with the lack of commercial activity, is insufficient to convey general personal jurisdiction subjecting Mr. Papillon to being “haled into court in the forum state to answer for any of its activities anywhere in the world.”
This discussion is garbled, of course, because the Zippo test applied to specific jurisdiction, not general jurisdiction, although “high” level of interactivity in the Zippo test is the de facto equivalent of general jurisdiction. This ruling is nice because it denies jurisdiction not only for normal blogging activities but also “enhanced” blogging activities like putting podcasts behind a paywall.
Selected related posts