ENTERED AND
SERVED
JUN 15 2000
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
AMAZON NATURAL TREASURES, INC.,
a Nevada corporation,
Plaintiffs,
v.
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/ CARL W DOES I THROUGH CXIII, AND BLACK CORPORATIONS I THROUGH XX, inclusive,
Defendants.
CV-S-00-0158-PMP (RLH)
ORDER
Presently before this Court is Defendant D. Tod Pauly's Motion to Dismiss for Lack of Personal Jurisdiction (#10) filed on March 20, 2000. Plaintiff Amazon Natural Treasures, Inc. ("Amazon") filed an Opposition (#22) on April 20, 2000. Defendant D. Tod Pauly ("Pauly") filed a Reply in Support of his Motion to Dismiss for Lack of Personal Jurisdiction (#32) on April 28, 2000. Following a hearing on Defendant Pauly's Motion conducted May 4, 2000 (#30), Amazon submitted a sworn affidavit and a supplemental brief supporting their opposition to Defendant Pauly's Motion to Dismiss (#33). Pauly filed an affidavit and supplemental brief in support of his Motion to Dismiss on June 2, 2000 (#35).
I
Plaintiff Amazon alleges that Defendant Pauly intentionally and maliciously published, and republished, a variety of false and defamatory statements concerning Amazon to unprivileged third parties. The alleged statements were posted on an Internet-based bulletin board, purportedly in an effort to drive down Amazon's stock price. During oral argument on the Motion to Dismiss, counsel for Amazon offered to present evidence that Pauly had telephoned a representative of Amazon, based in Nevada, in order "to follow up on [allegedly injurious comments made on the Internet." Pauly contends that this Court does not have personal jurisdiction over him.
A court may exercise general jurisdiction when defendant has "continuous and systematic general business contacts with the forum state." See Ziegler v. Indian River County, 64 F.3d 470, 473 (9th Cir. 1995) . Based on the facts presented, this Court concludes that sufficient contacts do not exist and the exercise of general jurisdiction would not be proper.
Specific jurisdiction may be exercised only when the alleged malfeasance springs forth from the forum activity. See Cybersell Inc. v. Cybersell, Inc.., 130 F.3d 414, 416 (9th Cir. 1997) (citing Ballard, 817 F.2d at 1498) . Even if the alleged telephone contacts were made, they do not form the basis for the causes of action before this Court. The Nevada Supreme Court has stated that in order to create liability for defamation, there must be "unprivileged publication to a third party" People for the Ethical Treatment of Animals v. Bobby Berosini, Ltd., 895 P.2d 1269, 1272 (Nev. 1995). Similarly, the claim of intentional interference with business relations requires that the defendant know of a "prospective contractual relationship between the plaintiff and a third party" and act in a manner to "prevent the relationship." Las Vegas-Tonopah-Reno Stage Line, Inc., v. Gray Line Tours of S. Nev., 792 P.2d 386, 388 (Nev. 1990) . Here, the alleged communications within the forum state did not involve third parties, further the alleged conspiracy, prevent a prospective relationship, or hinder an existing relationship involving a third party.
IT IS THEREFORE ORDERED that Defendant D. Tod Pauly's Motion to Dismiss for Lack of Personal Jurisdiction (#10) is GRANTED. Ail causes of action asserted against Defendant D. Tod Pauly are DISMISSED.
DATED: June 14, 2000
[signature]
PHILIP M. PRO
United States District Judge
=====
ENTERED AND
SERVED
JUN 15 2000
AMAZON NATURAL TREASURES, INC.
Plaintiff,
v.
JANICE SHELL, et al,
Defendants
JUDGMENT IN A CIVIL CASE
CV-S-00-0158-PMP (RLH)
______ Jury Verdict. This action came before t¬e Court for a trial by jury. The issues have been tried and the jury has rendered it's verdict.
__X__ Decision by Court. This action came to be considered by the Court. The issues have been considered and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that the defendant D. Todd Pauly's motion to dismiss for lack of personal jurisdiction is GRANTED. Judgment is hereby entered in favor of the defendant Pauly and against the plaintiff.
June 15, 2000
LANCE S. WILSON
Clerk of the Court
[signature of Grace Walters]
(By) Deputy Clerk
=====
ENTERED AND
SERVED
JUN 15 2000
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
AMAZON NATURAL TREASURES, INC.,
a Nevada corporation,
Plaintiffs,
v.
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/ CARL W DOES I THROUGH CXIII, AND BLACK CORPORATIONS I THROUGH XX, inclusive,
Defendants.
CV-S-00-0158-PMP (RLH)
ORDER
Presently before this Court is Defendant Jeffrey Mitchell's Motion to Dismiss for Lack of Personal Jurisdiction (#13) filed on March 30, 2000. Plaintiff Amazon Natural Treasures, Inc.
("Amazon") filed an Opposition (#29) on May 3, 2000. Defendant Jeffrey Mitchell ("Mitchell") filed a Reply in Support of Defendant Jeffrey Mitchell's Motion to Dismiss for Lack of Personal Jurisdiction (#32) on May 16, 2000.
I. BACKGROUND
Plaintiff Amazon alleges that Defendant Mitchell intentionally and maliciously published to unprivileged third parties, and republished to unprivileged third parties, a variety of false and defamatory statements concerning Amazon. These statements were posted on two electronic bulletin boards maintained by Raging Bull and Silicon Investor on the Internet. The postings were allegedly part of a "cybersmear" to drive down the price of Amazon's stock. Defendant Mitchell resides in Connecticut and the postings were addressed to other Internet users in Wisconsin and New Hampshire.
II. STANDARDS
A plaintiff bears the burden of establishing that a federal court has personal jurisdiction over the defendants. See Ziegler v. Indian River County, 64 F.3d 470, 473 (9th Cir. 1995) . When a defendant moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b) (2), a plaintiff is "obligated to come forward with facts, by affidavit or otherwise, supporting personal jurisdiction." Amba Marketinq Sys., Inc. v. Jobar Int'l Inc., 551 F.2d 784, 787 (9th Cir. 1977).
III. DISCUSSION
In his Motion to Dismiss, Mitchell contends that this Court cannot assert personal jurisdiction over him in this matter.
Nevada's long-arm statute allows the exercise of jurisdiction to the full extent permitted by the Due Process Clause of the Fourteenth Amendment. See Kumarelas v. Kumarelas, 16 F.Supp 2d 1249, 1253 (D. Nev. 1998). Under the Due Process Clause, a court may exercise jurisdiction if the defendant has "minimum contacts" with the forum state such that the assertion of personal jurisdiction would not "offend traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).
Therefore, this Court must first look to whether Mitchell has sufficient "minimum contacts" with the State of Nevada such that asserting general personal jurisdiction over him would not "offend traditional notions of fair play and substantial justice." General jurisdiction is found in suits where the defendant has "continuous and systematic general business contacts with the forum state." See Ziegler, 64 F.3d at 473. Based on the facts presented, this Court finds Mitchell's contacts with the State of Nevada to be attenuated at best. The only contact alleged is the accessibility of his Internet postings by persons in Nevada. The Court concludes, therefore, that sufficient contacts not exist and the exercise of general jurisdiction would not be proper.
Next, this Court must look at whether Mitchell's actions satisfy the test set forth by the Ninth Circuit Court of Appeals for the establishment of limited jurisdiction. See Ballard v. Savage, 65 F3d 1495, 1498 (9th Cir. 1995) . The test consists of three parts:
1. "The nonresident defendant must do some act or consummate some transaction within the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws;
2. The claim must be one which arises out of or results from the defendant's forum-related activities, and
3. The exercise of jurisdiction must be reasonable."
Cybersell Inc. v. Cybersell, Inc., 130 F.3d 414, 416 (9th Cir. 1997) (citing Ballard, 817 F.2d at 1498).
The Ninth Circuit Court of Appeals addressed the issue of "minimum contacts" in an electronic context in Cybersell. Cybersell, 130 F.3d at 415. That case involved a trademark infringement case filed by an Arizona corporation (Cybersell AZ) against a Florida corporation (Cybersell FL) who offered web construction services over the Internet. Cybersell AZ had registered the name "Cybersell" as a service mark. At the time that Cybersell FL created their company using this same name, the Patent and Trademark Office had not granted Cybersell AZ's application for the service mark. Further, Cybersell AZ had taken their web site down for reconstruction and thus no home page with the "Cybersell" name was in operation at the time that Cybersell FL created their home page as part of their marketing campaign. See id. at 415. When Cybersell AZ found Cybersell FL's home page, it notified them that the name was a registered service mark. Cybersell FL changed their corporate name but continued to use the "Cybersell" name on their web page's introductory screen. Id. at 416 .
In reaching its decision in the Cybersell case, the Ninth Circuit Court of Appeals considered the rationales used by other courts and noted that no court had ever held than an Internet advertisement alone was sufficient to exercise jurisdiction. See id. at 418. Rather, all courts required "something more" to indicate that the defendant purposefully directed his activity to, or availed himself to the laws of the forum state. Id. The "something more" which courts have required has been satisfied in several ways, ranging from a company posting a local telephone number in their Internet ad, to a transaction made over the Internet but specifically made subject to the laws of a particular state. Id. at 419. The number of times a web page was accessed, or "hit," has also been considered by some courts. Id. The court noted that Cybersell FL had not conducted any transactions with Arizonans; had done nothing to encourage Arizonans to access the site; had not engaged in any commercial-activity in Arizona; and except for Cybersell AZ, no Arizonans had "hit" Cybersell FL's web page. Id. The court concluded that the web page, though accessible from Arizona, was insufficient to satisfy the "purposeful availment" prong of the three-step test for specific jurisdiction and thus dismissed the matter for lack of personal jurisdiction. Id. at 420.
Construing the facts as presented in the Complaint, Mitchell's activity on the Internet seems passive in nature, like that of the plaintiff in Cybersell. The postings were not addressed to anyone in Nevada and no efforts were made to attract Nevadans to the web site to read the messages. Nor has Amazon shown that Mitchell conducted any business or profited in any manner from Nevada. A traditional personal jurisdiction analysis thus fails on the first prong of the test.
As an alternative, some courts have allowed the purposeful availment prong to be satisfied by the "purposeful direction" of an act which has an effect in that forum. Core-Vent Corp. v. Nobel Indus., 11 F.3d 1482, 1485 (9th Cir. 1993) (citing Calder v. Jones, 465 U.S. 783, 789 (1984)). Core-Vent involved a California corporation suing several Swedish doctors for antitrust violations and libel based on articles published by the doctors in international medical magazines, which were distributed within California's borders. See id. at 1484. The Ninth Circuit Court of Appeals has limited application of this "effects" test to cases involving intentional torts. Id. at 1486. Moreover, the CoreVent court noted that under this test, a corporation will usually not suffer harm in a particular geographic location in the same way that an individual does because its interests are normally more dispersed. See id. But see Panavision Int'l v. Toeppen, 141 F.3d 1316, 1318 (9th Cir. 1998) (finding existence of purposeful availment where effects were localized to industry concentrated in forum state).
Here, like the plaintiff in Core-Vent, Amazon is a corporation with far-flung interests. According to its own advertisements, Amazon is a publicly traded corporation with "over 700 'retail locations' throughout the fifty United States." (Reply in Supp. of Def. Mitchell's Mot. to Dismiss at 5 n.1.) The alleged acts of publication giving rise to this suit consist of postings between individuals in different states, none of which include the forum state. The communications were made on an Internet-based bulletin board and thus available to anyone with access to the world-wide web, including persons in Nevada. However, the messages cannot be said to have been "purposefully directed" at Nevada because they were not specifically targeted to persons within Nevada. Furthermore, Amazon has not shown any localization of the effects of such postings to Nevada. The effects test is thus inapplicable in this case. The Court therefore finds that an exercise of jurisdiction based solely on such an attenuated contact with the State of Nevada would offend "traditional notions of substantial justice and fair play."
Finally, the Court rejects Plaintiff's argument that by challenging certain evidence as fabricated, Defendant Mitchell has somehow subjected himself to the jurisdiction of this Court. Indeed, given the Court's finding that it lacks jurisdiction over Defendant Mitchell, the Court concludes it is unnecessary to address the issue of whether evidence was fabricated by Plaintiff.
IV. CONCLUSION
IT IS THEREFORE ORDERED that Defendant Jeffrey Mitchell's Motion to Dismiss for Lack of Personal Jurisdiction (#13) is GRANTED. Ail causes of action asserted against Defendant Jeffrey Mitchell are DISMISSED.
DATED: June 14, 2000
[signature]
PHILIP M. PRO
United States District Judge
=====
ENTERED AND
SERVED
June 15 2000
JUDGMENT IN A CIVIL CASE
CV-S-00-0158-PMP (RLH)
AMAZON NATURAL TREASURES, INC.,
Plaintiff,
V.
JANICE SHELL, et al,
Defendants.
______ Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered it's verdict.
__X__ Decision by Court. This action came to be considered by the Court. The issues have been considered and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that the defendant Jeffrey Mitchell's motion to dismiss for lack of personal jurisdiction is GRANTED. Judgment is hereby entered in favor of the defendant Mitchell and against the plaintiff.
June 15, 2000
LANCE S. WILSON
Clerk of the Court
[signature of Grace Walters]
(By) Deputy Clerk
=====
ENTERED AND
SERVED
JUN 15 2000
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
AMAZON NATURAL TREASURES, INC.,
a Nevada corporation,
Plaintiffs,
v.
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/ CARL W DOES I THROUGH CXIII, AND BLACK CORPORATIONS I THROUGH XX, inclusive,
Defendants.
CV-S-00-0158-PMP (RLH)
ORDER
On March 23, 2000, Defendant Janice Shell filed a Motion for Consideration on Briefs Only (#11) . A review of the Court's file indicates that Plaintiff has failed to file a Response in opposition to Defendant's Motion. Therefore, pursuant to the provisions of Local Rule 7-2(d) of the Rules of Practice of the United States District Court for the District of Nevada, Plaintiff consents to the granting of the Motion.
\\\\\ IT IS THEREFORE ORDERED that Defendant Janice Shell's Motion for Consideration on Briefs Only (#11) is granted.
DATED:
June 14, 2000
[signature]
PHILIP M. PRO
United States District Judge |
