Q1 2016 Quick Links, Part 2 (Online Jurisdiction)

Photo credit: 3D Quick Link Crossword // ShutterStock

Photo credit: 3D Quick Link Crossword // ShutterStock

Oh yay, an entire quick links post dedicated to online jurisdiction!

* Kindig It Design, Inc. v. Creative Controls, Inc., 2016 WL 247574 (D. Utah. Jan. 20, 2016)

Furthermore, maintaining an interactive website is no longer the sole purview of corporations. In fact, with the invention of social media, many individuals, to say nothing of organizations, maintain an interactive website. In a matter of minutes, an individual can create a Facebook account and upload content to his or her own “Facebook page.” That page may allow all other Facebook users to interact with it. It is difficult to envision a website that is more interactive than the average Facebook page. Indeed, a principal purpose of social media is to facilitate interactions between users. The level of interactivity on even the most basic Facebook page arguably exceeds that of even the most interactive website in 1997 when Zippo was decided.

Given the exponential growth in the number of interactive websites, the Zippo approach—which would remove personal jurisdiction’s geographical limitations based on the mere existence of those websites—is particularly troubling. And the problem would grow more acute every year as more individuals and businesses create interactive websites.

This court is not alone in its criticism of the Zippo sliding scale as a replacement for traditional personal jurisdiction analysis. The Second Circuit has cautioned that the Zippo sliding scale “does not amount to a separate framework for analyzing internet-based jurisdiction.” Best Van Lines, Inc. v. Walker, 490 F.3d 239, 252 (2d Cir. 2007) (quoting Best Van Lines, Inc. v. Walker, No. 03 Civ 6585(GEL), 2004 WL 964009, at *3 (S.D.N.Y. May 5, 2004)). Rather, “traditional statutory and constitutional principles remain the touchstone of the inquiry.” Id. (quoting Best Van Lines, 2004 WL 964009, at *3); see Roblor Mktg. Grp., 645 F.Supp.2d at 1138–42(citing cases and “shar[ing] in the criticism of over-reliance on the sliding scale”).

The traditional tests are readily adaptable to the digital age, just as they were to technological advances like the telegraph, radio, television, and telephone. See Gorman v. Ameritrade Holding Corp., 293 F.3d 506, 510–11 (D.C. Cir. 2002) (explaining that “our traditional notions of personal jurisdiction” are adaptable to the internet context). Indeed, the telephone provides an apt analogy. Although a company may have a public telephone number that can be dialed from every state, it is not necessarily subject to personal jurisdiction in every state. Rather, personal jurisdiction rising from telephonic contacts can only be based on actual phone calls. Similarly, personal jurisdiction arising from an interactive website should only be based on actual use of the site by forum residents.

In summary, this court finds Zippo to be unpersuasive. The traditional tests for personal jurisdiction are readily applicable to internet-based conduct and are therefore controlling under Federal Circuit law.


* Security Alarm Financing Enterprises, L.P. v. Nebel, 2016 WL 946180 (N.D. Cal. March 14, 2016)

As Nebel persuasively argues, her social media posts are insufficient to establish personal jurisdiction. Contrary to Plaintiff’s unsupported allegation, Nebel has never “maintained a website.” Nebel maintains personal, non-commercial profiles on Facebook and Instagram, which merely provide information regarding Nebel and her boxing career to interested parties. Plaintiff has offered no evidence, and the Court finds none, that Nebel’s Facebook and Instagram posts were in any way directed or targeted at California or a California audience. Cf. Mavrix, 647 F.3d at 1230 (holding that the defendant expressly aimed its conduct–posting of the plaintiff’s copyrighted photographs on the defendant’s website–at the forum because the defendant “anticipated, desired, and achieved a substantial California viewer base”); Burdick v. Superior Court, 233 Cal. App. 4th 8, 26 (2015) (holding that the defendant did not expressly aim his conduct–posting of defamatory comments about the Plaintiff on his Facebook page–at the forum because there was no evidence that “the Facebook page or the posting were directed at the State of California or a California audience”). For example, Plaintiff has not shown that the persons to whom Nebel directed her postings resided in California, or that Nebel tailored the content of her posts for a California audience. Nebel’s social media presence therefore did not form the requisite contact with California.

* A Corp. v. All American Plumbing, No. 15-1509 (1st Cir. Jan. 27, 2016).

A Corp. has offered only one real contact between Massachusetts and All American — All American’s use of a website that is accessible from everywhere in the world, including Massachusetts. And although the website is accessible in Massachusetts, it never mentions Massachusetts and affords no mechanism for Massachusetts residents to order any goods or services. The website offers no genuine “interactive” features, functioning more like a digital billboard, passively advertising the business and offering an email address, fax and phone number. Moreover, All American’s advertised services are available only in Arizona — since All American is only licensed to provide plumbing services in that state — and All American has never performed any plumbing services or conducted any business in Massachusetts. This is not enough to show purposeful availment.

* Dixie Motors, LLC v. Motor Home Specialist, LP, 2016 WL 115851 (E.D. La. January 11, 2016)

Defendants’ advertising appears not to have been passive activity. The record suggests that, particularly through the use of Google Adwords, Defendants sought to increase traffic to the Motor Home Specialist website by rerouting consumers who used the term ‘Dixie Motors‘ in their internet searches. The fact that this practice continued after repeated warnings to stop by Dixie Motors – a known competitor located in a neighboring state – further supports Plaintiff’s claim that Defendants were intentionally targeting a Louisiana business and its customers, many of whom were presumably located within the forum.

* Gullen v. Facebook.com, Inc., 2016 WL 245910 (N.D. Ill. January 21, 2016). Illinois doesn’t have personal jurisdiction over Facebook in biometric privacy/face scanning lawsuit.