Re: 5/3/00 - [AZNT] OPPOSITION TO DEFENDANT JEFFREY MITCHELL'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
ROBERT S. QUALEY, ESQ.
Nevada Bar No. 3570
JASON A. AWAD & ASSOCIATES
4386 South Eastern Avenue
Las Vegas, Nevada 89119 Telephone: 702/732-4141
Attorney for Plaintiff
AMAZON NATURAL TREASURES, INC.
UNITED STATES DISTRICT COURT DISTRICT OF NEVADA
AMAZON NATURAL TREASURES, INC., a Nevada corporation,
Plaintiff,
VS.
JANICE SHELL, DEAN DUMONT, D. TOD PAULY, JEFFREY MITCHELL, CYNTHIA DEMONTE, DEMONTE & ASSOCIATES, a New York Corporation, SILICON INVESTOR, a Delaware Corporation, RAGING BULL, a Delaware Corporation, JOHN DOE NO. 1 A/K/A CARLW DOES I through CXIII, and BLACK CORPORATIONS I through XX, inclusive,
Defendants.
CV-S-000158-PMP (RLH)
DATE: TIME:
April 26, 2000 4:00 p.m.
OPPOSITION TO DEFENDANT JEFFREY MITCHELL'S
MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
Defendant JEFFREY MITCHELL (hereinafter "MITCHELL") has basically filed the very same motion as Defendant D. TOD PAULY and consequently, this Opposition will, in essence, be the same as that presented in opposition to Defendant D. TOD PAULY'S motion. MITCHELL asserts that this Court cannot establish jurisdiction over him and require that he answer for the libelous and slanderous statements he has made and directed at the Plaintiff Amazon Natural Treasures, Inc. (hereinafter "Amazon"), a Nevada corporation.
However, this is not the case; as can be seen in the initial pleadings and moving papers which Plaintiff incorporates by reference herein, Defendant MITCHELL has engaged in an intentional pattern of making false and defamatory statements over the Internet, to the point of "effecting" the viability of Amazon and its ability to conduct business. Defendant now, apparently, seeks to escape answering for his defamatory statements, which were clearly directed at and intended to harm the Plaintiff, a Nevada business, arguing that when he made them he was in another state.
Defendant MITCHELL, by his choice, choose to attack and slander the Plaintiff; thus, it is he who has assumed the risk that he might be "haled" into a court in Nevada to defend his statements. Amazon is a relatively new and small start-up public corporation which markets and sells, primarily, health-related products and supplements. It does not have the resources to initiate a legal action in Connecticut and therefore, must defend itself from defamatory statements in its domicile, i.e., Nevada.
The Ninth Circuit recently discussed specific jurisdiction over a non-resident stating:
the "purposeful availment" requirement is satisfied if the defendant has taken deliberate action within the forum state or if he has created continuing obligations to forum residents. "It is not required that a defendant be physically present within, or have physical contacts with, the forum, provided that his efforts 'are purposefully directed' toward forum residents."
CYBERSELL INC. v CYBERSELL, INC., 130 F.3d 414 (9th Cir. 1997) (Citing Ballard, 65 F.2d at 1498)' (Emphasis added). The Court, in CYBERSELL, noted that in the cases they reviewed, jurisdiction was proper where the challenging party has "purposefully (albeit electronically) directed his activity in a substantial way to the forum state. "Id. Nothing could be more "purposeful" than publicly attacking the Plaintiff herein, through electronic means which he knows is read or can be read by people all over the world and have an "effect" here in the State of Nevada vis-a-vis Amazon's ability to conduct its business.
As the CYBERSELL court noted, in its discussion of another case, "Internet sites and toll-free numbers are designed to communicate with people and their businesses in every state; an Internet advertisement could reach as many as 10,000 Internet users within [one particular state] alone; and once posted on the Internet, an advertisement is continuously available to any Internet user." Id. (Citing Inset Systems, Inc. v. Instruction Set, Inc., 937 F. Supp. 161 (D. Conn. 1996)).
Likewise, Defendant MITCHELL's comments in the instant matter are continuously available to people everywhere and have a negative effect on the Plaintiff, a Nevada business.
The Court in CYBERSELL also found that:
"[s]ome courts have also given weight to the number of "hits" received by a web page from residents in the forum state, and to other evidence that Internet activity was directed at, or bore fruit in, the forum state. See, e.g., Heroes, Inc. v. Heroes Found., 958 F. Supp. 1 (D.D.C. 1996) (web page that solicited contributions and provided toll-free telephone number along with the defendant's use on the web page of the allegedly infringing trademark and logo, along with other contacts, provided sustained contact with the District), amended by No. Civ. A. 96-1260(TAF) (1997)"
In the instant matter, many people in the state of Nevada have read Defendant MITCHELL's comments, and as a result thereof, there has been a negative effect on Plaintiff Amazon. Even people in other states, upon reading the defamatory material, called Amazon and did inquire as to its veracity.
"The exercise of personal jurisdiction over a nonresident defendant must be based on a showing: '(1) that the requirements of [Nevada's]- long-arm-statute have been satisfied, and (2) that due process is not offended by the exercise jurisdiction.'" Trump v. Eighth Jud. Dist. Ct., 109 Nev. 687 93; 857 P.2d 740 (1993). Because Nevada's long-arm statute, N.R.S. 14.065 has been construed to extend to the outer reaches of due process, the two injuries ... may be collapsed into one." Id. 109 Nev. at 698, 857 P.2d at 747.
Thus, jurisdiction would seem to be analyzed based on the "effects" test set forth in Calder v. Jones, 465 U.S. 783 (1984), and Core-Vent Corp. v. Nobel Industries, 11 F.3d 1482 (9th Cir. 1993). The Court, in Calder, looked at the nature of the wrong and the fact that it was an intentional torts directed to the injured party, it then looked to see if it caused injury where the plaintiff lives. The facts of Calder, involved Shirley Jones, an entertainer who lived and worked in California, who claimed she was libeled by a story in the National Enquirer, a magazine published in Florida with a nationwide circulation including a large audience in California. The Calder Court readily held that California was the "focal point both of the story and of the harm suffered" and so jurisdiction was proper in California based on the "effects" of the defendants' Florida conduct. Calder, 465-U.S. at 789.
Of equal impact, the court further held that California jurisdiction over defendants was proper because their intentional, and allegedly tortious, conduct in Florida was calculated to cause injury to plaintiff in California, and therefore they must have "reasonably anticipate[d] being haled into court there".
The Calder court considered the following factors in deciding whether the exercise of jurisdiction is reasonable: (1) the burden on the defendant, (2) the forum state's interest in resolving the dispute, (3) the plaintiff's-interest in receiving convenient and effective relief, (4) the interstate judicial system's interest in obtaining the most efficient resolution of controversies, and (5) the shared interest of the several states in furthering fundamental substantive social policies. See Burger King Corp., 471 U.S. at 477. Plaintiff would assert that these factors weigh in favor of exercising jurisdiction over the defendant.
Thus, a court may, consistent with due process, assert specific jurisdiction over a nonresident defendant "if the defendant has purposefully directed his activities at residents of the forum, and the litigation results from alleged injuries that arise out of or relate to those activities." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (quotations and citations omitted).
The Ninth Circuit in, Panavision Int'l., L.P. v Toeppen, 141 F.3 1316 (9th Cir. 1998) explained that purposeful availment requirement ensures that a non-resident defendant will not be haled into court based upon "random, fortuitous or attenuated" contacts with the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985). This requirement is satisfied if the defendant "has taken deliberate action" toward the forum state. Ballard v. Savage, 65 F 3d 1495, 1498 (9th Cir. 1995). It is not required that a defendant be physically present or have physical contacts with the forum, so long as his efforts are "purposefully directed" toward forum residents. Id. Nothing could be more "purposefully directed" to the Plaintiff than defamatory statements about it actions, products, etc.
The Effects Doctrine
As mentioned supra, in tort cases, jurisdiction may attach if the defendant's conduct is aimed at or has an effect in the forum state. Zieqlerv. Indian River County, 64 F.3d 470, 473 (9th Cir. 1995); see Calder v. Jones, 465 U.S. 783 (1984) (establishing an "effects test" for intentional action aimed at the forum state). Under Calder, personal jurisdiction can be based upon: "(1) intentional actions (2) expressly aimed at the forum state (3) causing harm, the brunt of which is suffered--and which the defendant knows is likely to be suffered--in the forum state." Core-Vent Corp. v. Nobel Industries AB, 11 F.3d 1482, 1486 (9th Cir. 1993).
Essentially, the present case is one sounding in tort, and the courts have applied the application of the purposeful availment prong differently, depending on whether the underlying claim is a tort or contract claim. Zieqler, 64 F.3d at 473. Like Toeppen, the brunt of the harm to the Plaintiff, herein, was felt here in Nevada. Similarly, the Defendant would have to know or expect that because of his statements, Plaintiff would be less likely to attract investors or customers for its products.
The harm to Amazon can be analogized to the harm caused to the Indianapolis Colts football team in Indianapolis Colts, Inc. v. Metropolitan Baltimore Football Club Ltd. Partnership, 34 F.3d 410 (7th Cir. 1994), discussed in Panavision. There, the Indianapolis Colts brought a trademark infringement action in the District Court in Indiana against the Canadian Football League's new team, the "Baltimore CFL Colts." Id. at 411. The Seventh Circuit held that the Baltimore CFL Colts team was subject to personal jurisdiction in Indiana even though its only activity directed toward Indiana was the broadcast of its games on nationwide cable television. Id. Because the Indianapolis Colts used their trademarks in Indiana, any infringement of those marks would create an injury which would be felt mainly in Indiana, and this, coupled with the defendant's "entry" into the state by the television broadcasts, was sufficient for the exercise of personal jurisdiction. Id.
Whereas, Defendant had to know, and probably intended that his actions have the effect of injuring Amazon in Nevada, since that if where its principal place of business is located. Consequently, under the "effects test," the purposeful availment requirement necessary for specific, personal jurisdiction is satisfied.
b. Defendant's Forum-Related Activities
The second requirement for specific, personal jurisdiction, is that the claim asserted in the litigation arises out of the defendant's forum related activities. Zieqler, 64 F.3d at 474. It can easily be determined that the plaintiff would not have been injured "but for" the defendant's conduct directed toward Amazon in Nevada. See Ballard, 65 F.3d at 1500.
Thus, this requirement is satisfied. MITCHELL's defamatory statements on the Internet had the effect of injuring Amazon in Nevada. "But for" MITCHELL's conduct, this injury would not have occurred. Therefore Amazon's claims arise out of MITCHELL's Nevada related activities.
c. Reasonableness
The exercise of personal jurisdiction must be reasonable. Ziegler, 64 F.3d at 474-75. For jurisdiction to be reasonable, it must comport with "fair play and substantial justice." Burger King, 471 U.S. at 476. "[W]here a defendant who purposefully has directed his activities at forum residents seeks to defeat jurisdiction, he must present a compelling case that the presence of some other considerations would render jurisdiction unreasonable." Core-Vent, 11 F.3d at 1487 (citing Burger King, 471 U.S. at 476-77).
Whereas here, MITCHELL purposefully directed his activities at Amazon in Nevada. The burden is on him to "present a compelling case that the presence of some other considerations would render jurisdiction unreasonable." Id.
The question of reasonableness involves the consideration of seven factors: (1) the extent of a .defendant's purposeful interjection; (2) the burden on the defendant in defending in the forum; (3) the extent of conflict with the sovereignty of the defendant's state; (4) the forum state's interest in adjudicating the dispute; (5) the most efficient judicial resolution of the controversy; (6) the importance of the forum to the plaintiff's interest in convenient and effective relief; and (7) the existence of an alternative forum. Burger King, 471 U.S. at 476-77. No one factor is dispositive; a court must balance all seven. Core-Vent, 11 F.3d at-1488.
There is no compelling evidence that jurisdiction is unreasonable. The balance of the Burger King factors which are articulated in Core-Vent, Plaintiff would assert tips in favor of the exercise of personal jurisdiction.
i. Purposeful Interjection
"Even if there is sufficient 'interjection' into the state to satisfy the purposeful availment prong, the degree of interjection is a factor to be weighed in assessing the overall reasonableness of jurisdiction under the reasonableness prong." Core-Vent, 11 F.3d at 1488 (citing Insurance Company of North America v. Marina Salina Cruz, 649 F.2d 1266, 1271 (9th Cir. 1981)).
As previously noted, MITCHELL's acts were aimed at Amazon in Nevada. He posted his defamatory statements knowing that this would likely injure Plaintiff in Nevada. The purposeful interjection factor weighs strongly in favor of exercising personal jurisdiction.
ii. Defendant's Burden in Litigating
A defendant's burden in litigating in the forum is a factor in the assessment of reasonableness, but unless the "inconvenience is so great as to constitute a deprivation of due process, it will not overcome clear justifications for the exercise of jurisdiction." Caruth v. International Psychoanalytical Ass'n, 59 F.3d 126, 128-29 (9th Cir. 1995) (citing Roth v. Garcia Marquez, 942 F.2d 617, 623 (9th Cir. 1991)) .
While there may be some burden on MITCHELL to litigate in Nevada the inconvenience is not so great as to deprive him of due process. The Court in Panavision noted: "'in this era of fax machines and discount air travel' requiring [defendant] to litigate in California is not constitutionally unreasonable." Panavision, 938 F. Supp.at 622 (quoting Sher v. Johnson, 911 F.2d 1357, 1365 (9th cir. 1990)).
iii. Sovereignty
This factor concerns the extent to which the district court's exercise of jurisdiction in Nevada would conflict with the sovereignty of Connecticut, MITCHELL's state of domicile. Core-Vent, 11 F.3d at 1489. Such a conflict should not be a concern in this case. The allegations in support of Amazon's claims and would result in the Federal analysis being the same in either Connecticut or Nevada.
In this circumstance, the exercise of jurisdiction by a federal court in Nevada should not implicate sovereignty concerns of Connecticut.
iv. Forum State's Interest
Obviously, Nevada has a strong interest in providing an effective means of redress for its residents tortiously injured. Amazon's principal place of business is in Nevada.
The Panavision court felt this factor alone weighs in the Plaintiff's favor.
v. Efficient Resolution
"This factor focuses on the location of the evidence and witnesses." Id. The court noted that it is no longer weighed heavily given the modern advances in communication and transportation. Id. Given the damages to the Plaintiff and the witnesses, the majority of which are likely located in Nevada.
It would be more efficient to resolve this matter here. Especially, in light of the fact that there are more than one defendant.
vi. Convenient & Effective Relief for Plaintiff
In evaluating the convenience and effectiveness of relief for the plaintiff it is clear that it would be more convenient for the Plaintiff to litigate in Nevada. Given its limited resources and the fact that most of its witnesses and evidence will probably be from Nevada, this forum is the preferable one.
vii. Alternative Forum
Connecticut as an alternative forum is not feasible, its out-of-the-way location for witnesses and evidence mitigate against it being an alternative forum.
Thus, in balancing the Burger King factors, there is no "compelling" evidence that the District Court's exercise of jurisdiction in Nevada would be unreasonable.
DEFENDANT MITCHELL, BY CHALLENGING EVIDENCE
HAS SUBMITTED TO THE JURISDICTION OF THE COURT
Plaintiff would assert that by arguing and challenging the validity of evidence, Defendant Mitchell has gone beyond merely challenging jurisdiction and has gone to the merits and/or the evidence in support of the claims against him and has, thereby, submitted to the general jurisdiction of this Court. A request for relief other than a challenge to the court's jurisdiction, however, such as a request for relief premised on the court's having jurisdiction over the parties, still constitutes a general appearance.
In Nevada, where a defendant seeks relief additional to that necessary to protect him from service of process, he enters a general appearance. Davis v. Eighth Judicial Court, 97 Nev 332, 335, 629 P.2d 1209, 1211 (1981) (citations omitted). The Court in Davis explained: "Where the defendant appears, and asks some relief which can only be granted on the hypotheses that the court has jurisdiction of the cause and person, it is a submission to the jurisdiction of the Court. Id. at 336, P.2d at 1213 (citation omitted).
Consequently, not only does the Court have specific general jurisdiction over Defendant Mitchell; upon Defendant Mitchell requesting that this Court grant his "Motion to Dismiss for Lack of Personal Jurisdiction and Fabrication of Evidence" he has submitted to the general jurisdiction of this Court. (Emphasis added).
As to the charges of fabrication of evidence, Plaintiff would deny said charges and inform the court that they are in possession of the Internet posts as originally made and that any changes, Plaintiff is informed and believes and thereon alleges were made by the said Defendant possibly in conjunction with an agent of one or more of the Defendant bulletin boards.
CONCLUSION
Thus, all of the requirements for the exercise of specific, personal and general jurisdiction are satisfied. This Honorable Court should, therefore, exercise jurisdiction over the Defendant MITCHELL and deny defendant's motion.
DATED this 3rd day of May, 2000.
Respectfully submitted,
JASON A. AWAD & ASSOCIATES
ROBERT S. QUALEY, ESQ.
Nevada Bar No. 3570
4386 S. Eastern Avenue
Las Vegas, NV 89119
Attorneys for Plaintiff |
