Abdouch v. Lopez , 285 Neb. 718 ( 2013 )

Nebraska Advance Sheets
718 285 NEBRASKA REPORTS
Helen Abdouch, appellant, v.
K en Lopez, individually
as a resident of Massachusetts and as owner
and operator of K en L opez Bookseller,
a M assachusetts business, appellee.
___ N.W.2d ___
Filed April 19, 2013. No. S-12-363.
1. Judgments: Appeal and Error. When a jurisdictional question does not involve
a factual dispute, the issue is a matter of law. An appellate court reviews ques-
tions of law independently of the lower court’s conclusion.
2. Jurisdiction: Rules of the Supreme Court: Pleadings: Appeal and Error.
When reviewing an order dismissing a party from a case for lack of personal
jurisdiction under Neb. Ct. R. Pldg. § 6-1112(b)(2), an appellate court examines
the question of whether the nonmoving party has established a prima facie case
of personal jurisdiction de novo.
3. Jurisdiction: Judgments: Appeal and Error. An appellate court reviews a lower
court’s determination regarding personal jurisdiction based on written submis-
sions in the light most favorable to the nonmoving party.
4. Pleadings: Affidavits: Appeal and Error. If the lower court does not hold a
hearing and instead relies on the pleadings and affidavits, then an appellate court
must look at the facts in the light most favorable to the nonmoving party and
resolve all factual conflicts in favor of that party.
5. Jurisdiction: Words and Phrases. Personal jurisdiction is the power of a tribu-
nal to subject and bind a particular entity to its decisions.
6. Due Process: Jurisdiction: States. Before a court can exercise personal juris-
diction over a nonresident defendant, the court must determine, first, whether
the long-arm statute is satisfied and, if the long-arm statute is satisfied, second,
whether minimum contacts exist between the defendant and the forum state for
personal jurisdiction over the defendant without offending due process.
7. Constitutional Law: Jurisdiction: States. Nebraska’s long-arm statute pro-
vides that a court may exercise personal jurisdiction over a person who has any
other contact with or maintains any other relation to this state to afford a basis
for the exercise of personal jurisdiction consistent with the Constitution of the
United States.
8. Jurisdiction: States: Legislature: Intent. It was the intention of the Legislature
to provide for the broadest allowable jurisdiction over nonresidents under
Nebraska’s long-arm statute.
9. Constitutional Law: Jurisdiction: States. Nebraska’s long-arm statute extends
Nebraska’s jurisdiction over nonresidents having any contact with or maintaining
any relation to this state as far as the U.S. Constitution permits.
10. Due Process: Jurisdiction: States. When a state construes its long-arm statute to
confer jurisdiction to the fullest extent permitted by the Due Process Clause, the
inquiry collapses into the single question of whether exercise of personal jurisdic-
tion comports with due process.
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11. ____: ____: ____. To subject an out-of-state defendant to personal jurisdiction
in a forum court, due process requires that the defendant have minimum contacts
with the forum state so as not to offend traditional notions of fair play and sub-
stantial justice.
12. ____: ____: ____. The benchmark for determining whether the exercise of per-
sonal jurisdiction satisfies due process is whether the defendant’s minimum con-
tacts with the forum state are such that the defendant should reasonably anticipate
being haled into court there.
13. Jurisdiction: States. Whether a forum state court has personal jurisdiction over
a nonresident defendant depends on whether the defendant’s actions created sub-
stantial connections with the forum state, resulting in the defendant’s purposeful
availment of the forum state’s benefits and protections.
14. Due Process: Jurisdiction: States: Appeal and Error. In analyzing personal
jurisdiction, an appellate court considers the quality and type of the defendant’s
activities in deciding whether the defendant has the necessary minimum contacts
with the forum state to satisfy due process.
15. Jurisdiction: States. In the exercise of general personal jurisdiction, the plain-
tiff’s claim does not have to arise directly out of the defendant’s contacts with
the forum state if the defendant has engaged in continuous and systematic general
business contacts with the forum state.
16. ____: ____. If a defendant’s contacts are neither substantial nor continuous and
systematic and instead the cause of action arises out of or is related to the defend­
ant’s contacts with the forum, a court may assert specific jurisdiction over the
defendant, depending upon the nature and quality of such contact.
17. Jurisdiction: Courts. Technological advances do not render impotent the
Nebraska Supreme Court’s longstanding principles on personal jurisdiction.
18. Jurisdiction: States. The “sliding scale” test in Zippo Mfg. Co. v. Zippo
Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997), considers a Web site’s
interactivity and the nature of the commercial activities conducted over the
Internet to determine whether the courts have personal jurisdiction over nonresi-
dent defendants.
19. Jurisdiction: States: Constitutional Law: Statutes. The “sliding scale” test in
Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997), does
not amount to a separate framework for analyzing Internet-based jurisdiction, but,
rather, relies on traditional statutory and constitutional principles.
20. Torts: Jurisdiction: States. For intentional tort claims, the specific jurisdiction
inquiry focuses on whether the conduct underlying the claims was purposely
directed at the forum state.
21. ____: ____: ____. A defendant’s tortious acts can serve as a source of personal
jurisdiction only where the plaintiff makes a prima facie showing that the defend­
ant’s acts (1) were intentional, (2) were uniquely or expressly aimed at the forum
state, and (3) caused harm, the brunt of which was suffered—and which the
defendant knew was likely to be suffered—in the forum state.
22. Jurisdiction: States. Under a personal jurisdiction analysis, the unilateral activ-
ity of those who claim some relationship with a nonresident defendant cannot
satisfy the requirement of contact with the forum state.
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Appeal from the District Court for Douglas County:
Kimberly Miller Pankonin, Judge. Affirmed.
Mary Kay Green for appellant.
Michael C. Cox, David A. Yudelson, and Kristin M.V.
Farwell, of Koley Jessen, P.C., L.L.O., for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
and Cassel, JJ.
McCormack, J.
I. NATURE OF CASE
Helen Abdouch filed suit against an out-of-state defend­
ant, Ken Lopez, individually and as owner and operator of
his company, Ken Lopez Bookseller (KLB), under Neb. Rev.
Stat. § 20-202 (Reissue 2012) for violating her privacy rights
by using an inscription in Abdouch’s stolen copy of a book
entitled “Revolutionary Road”1 to advertise on the KLB rare
books Web site. Although not reflected in the case title, the
parties and the lower court refer to Lopez and KLB as separate
defendants, and so we will treat them as such in this opin-
ion. Lopez and KLB filed, and the district court sustained, a
motion to dismiss for lack of personal jurisdiction. Abdouch
now appeals.
II. BACKGROUND
Abdouch is a resident of Omaha, Nebraska. In 1960,
Abdouch was the executive secretary of the Nebraska presi-
dential campaign of John F. Kennedy. In 1963, Abdouch
received a copy of the book, which was inscribed to her by the
late author Richard Yates. The inscription stated: “For Helen
Abdouch — with admiration and best wishes. Dick Yates.
8/19/1963.”
At some time not specified by the record, Abdouch’s
inscribed copy of the book was stolen. Lopez and his company,
KLB, bought the book in 2009 from a seller in Georgia and
sold it that same year to a customer not in Nebraska. In 2011,
1
Richard Yates, Revolutionary Road (Boston, Little Brown 1961).
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Abdouch, who does not own a computer, learned from a friend
that Lopez had used the inscription in the book for advertis-
ing purposes on his Web site, http://www.lopezbooks.com.
The commercial advertisement had been used with the word
“SOLD” on the Web site for more than 3 years after the book
was sold. The advertisement associated with a picture of the
inscription stated in relevant part:
This copy is inscribed by Yates: “For Helen Abdouch —
with admiration and best wishes. Dick Yates. 8/19/63.”
Yates had worked as a speech writer for Robert Kennedy
when Kennedy served as Attorney General; Abdouch was
the executive secretary of the Nebraska (John F.) Kennedy
organization when Robert Kennedy was campaign man-
ager. The book is cocked; the boards are stained; the text
is clean. A very good copy in a near fine, spine-tanned
dust jacket. A scarce book, and it is extremely uncommon
to find this advance issue of it signed. Given the date of
the inscription — that is, during JFK’s Presidency — and
the connection between writer and recipient, it’s reason-
able to suppose this was an author’s copy, presented to
Abdouch by Yates. [#028096] SOLD
Lopez is the owner and sole proprietor of KLB, which is a
rare book business based in Hadley, Massachusetts. KLB buys
and sells rare books and manuscripts. KLB sells these books
and manuscripts through published catalogs and through the
Web site.
Generally, the Web site contains KLB’s inventory of rare
books and manuscripts. Individuals that visit the Website can
browse and search the inventory. If individuals or entities
choose to, they can purchase through the Web site.
In addition to selling books through catalogs and online,
KLB attends and has exhibits at various antiquarian bookfairs.
Over the past 25 years, Lopez and/or KLB have attended
and exhibited at an estimated 300 to 400 bookfairs in vari-
ous locations within the United States, as well as overseas.
Lopez and KLB have never exhibited at or attended a book fair
in Nebraska.
KLB has an active mailing list for its catalogs of approxi-
mately 1,000 individuals and entities. Among that list, only
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two are located in Nebraska. According to Lopez’ affidavit,
KLB did not solicit the two Nebraska members; rather, the
two individuals solicited contact with KLB and requested to be
placed on the mailing list. Neither of these two individuals has
any connection to the claims at issue in this lawsuit.
Neither Lopez nor KLB is registered to do business in
Nebraska in any capacity. Lopez and KLB do not own or
lease real estate in Nebraska, do not maintain an office in
Nebraska, and have never conducted or attended meetings
in Nebraska. Neither Lopez nor KLB has paid any Nebraska
sales tax.
Lopez and KLB do not advertise in any publication that is
published in or that otherwise originates from Nebraska. Lopez
and KLB do not advertise in any publication that specifically
targets potential customers in Nebraska. Beyond the two cus-
tomers on the mailing list, Lopez and KLB do not target or
reach out to customers or potential customers in Nebraska in
any way.
The amount of contact with Nebraska and Nebraska resi-
dents is also demonstrated by KLB’s sales. KLB’s total sales
for 2009 through 2011 were approximately $3.9 million. In
2009, KLB sold three books to a single Nebraska customer,
earning a total of $76. In 2010, KLB sold three books to two
Nebraska customers for $239.87. In 2011, two books were sold
to a Nebraska customer for $299. All of these sales were initi-
ated by the customers through the Web site.
Abdouch alleges that Lopez knew she was a resident of
Nebraska when he violated her privacy. Lopez avers in his
affidavit that he did not know that Abdouch was a resident
of Nebraska until in or around June 2011, at which time
he was contacted by someone and told that Abdouch lived
in Nebraska. In Abdouch’s affidavit, she counters that she
has been informed that she can be easily found and identi-
fied as a Nebraska resident on the Internet and that there
are only two people named “Helen Abdouch” in the entire
United States.
After discovering Lopez and KLB’s use of the inscribed
book as an advertisement, Abdouch brought suit pursuant to
§ 20-202 against Lopez and KLB for violating her vigilantly
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protected right of privacy. In a relevant part of the complaint,
she alleged:
5. That . . . Lopez did an internet search for “Helen
Abdouch” and found a brief reference to her as “execu-
tive secretary of the Nebraska (John F.) Kennedy cam-
paign” in an October 10, 1960, Time Magazine article
entitled: “DEMOCRATS: Little Brother is Watching”
based on an interview with Robert F. Kennedy, campaign
manager of his brother’s John F. Kennedy’s presiden-
tial campaign.
6. That based on this article, . . . Lopez wrote an
ad for the sale of Abdouch’s book on his online cata-
logue linking [Abdouch] to Yates through the Kennedy
connection . . . and placed on [the KLB Web site] at
www.lopezbooks.com and which was “broadcast” or sent
out over the world wide web.
7. That by his own admission, . . . Lopez did not search
the internet to determine whether . . . Abdouch was still
alive and assumed she was dead so he made no further
effort to get her permission.
Lopez and KLB filed a motion to dismiss for lack of per-
sonal jurisdiction, alleging that they do not have sufficient
contacts with Nebraska for purposes of personal jurisdiction
and have not purposefully availed themselves of the benefits
and protections of the forum state. The district court granted
the motion and dismissed the case.
III. ASSIGNMENT OF ERROR
Abdouch assigns as error the district court’s finding that it
lacked personal jurisdiction over Lopez and KLB.
IV. STANDARD OF REVIEW
[1,2] When a jurisdictional question does not involve a fac-
tual dispute, the issue is a matter of law. An appellate court
reviews questions of law independently of the lower court’s
conclusion.2 When reviewing an order dismissing a party from
a case for lack of personal jurisdiction under Neb. Ct. R. Pldg.
2
S.L. v. Steven L., 274 Neb. 646, 742 N.W.2d 734 (2007).
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§ 6-1112(b)(2), an appellate court examines the question of
whether the nonmoving party has established a prima facie
case of personal jurisdiction de novo.3
[3,4] An appellate court reviews a lower court’s determina-
tion regarding personal jurisdiction based on written submis-
sions in the light most favorable to the nonmoving party.4 If
the lower court does not hold a hearing and instead relies on
the pleadings and affidavits, then an appellate court must look
at the facts in the light most favorable to the nonmoving party
and resolve all factual conflicts in favor of that party.5
V. ANALYSIS
Abdouch argues that the district court erred in finding that
the State lacked personal jurisdiction over Lopez and KLB.
Abdouch argues that Lopez and KLB’s active Web site delib-
erately targeted Abdouch with tortious conduct. She alleges
these contacts are sufficient to create the necessary minimum
contacts for specific jurisdiction.
[5,6] Personal jurisdiction is the power of a tribunal to sub-
ject and bind a particular entity to its decisions.6 Before a court
can exercise personal jurisdiction over a nonresident defendant,
the court must determine, first, whether the long-arm statute
is satisfied and, if the long-arm statute is satisfied, second,
whether minimum contacts exist between the defendant and the
forum state for personal jurisdiction over the defendant without
offending due process.7
1. Long-Arm Statute
[7-10] Nebraska’s long-arm statute, Neb. Rev. Stat. § 25-536
(Reissue 2008), provides: “A court may exercise personal
jurisdiction over a person . . . [w]ho has any other contact
3
Id.
4
Id.
5
Id.
6
Id.
7
Brunkhardt v. Mountain West Farm Bureau Mut. Ins., 269 Neb. 222, 691
N.W.2d 147 (2005).
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with or maintains any other relation to this state to afford
a basis for the exercise of personal jurisdiction consistent
with the Constitution of the United States.” It was the inten-
tion of the Legislature to provide for the broadest allow-
able jurisdiction over nonresidents under Nebraska’s long-
arm statute.8 Nebraska’s long-arm statute, therefore, extends
Nebraska’s jurisdiction over nonresidents having any contact
with or maintaining any relation to this state as far as the U.S.
Constitution permits.9 “[W]hen a state construes its long-arm
statute to confer jurisdiction to the fullest extent permitted by
the due process clause, . . . the inquiry collapses into the single
question of whether exercise of personal jurisdiction comports
with due process.”10 Therefore, the issue is whether Lopez and
KLB had sufficient contacts with Nebraska so that the exercise
of personal jurisdiction would not offend federal principles of
due process.
2. Minimum Contacts
[11-13] Therefore, we consider the kind and quality of
Lopez’ and KLB’s activities to decide whether they had the
necessary minimum contacts with Nebraska to satisfy due
proc­ ss. To subject an out-of-state defendant to personal juris-
e
diction in a forum court, due process requires that the defend­
ant have minimum contacts with the forum state so as not to
offend traditional notions of fair play and substantial justice.11
The benchmark for determining whether the exercise of per-
sonal jurisdiction satisfies due process is whether the defend­
ant’s minimum contacts with the forum state are such that
the defendant should reasonably anticipate being haled into
court there.12 Whether a forum state court has personal juris-
diction over a nonresident defendant depends on whether the
8
Quality Pork Internat. v. Rupari Food Servs., 267 Neb. 474, 675 N.W.2d
642 (2004).
9
Erickson v. U-Haul Internat., 274 Neb. 236, 738 N.W.2d 453 (2007).
10
Bell Paper Box, Inc. v. U.S. Kids, Inc., 22 F.3d 816, 818 (8th Cir. 1994).
11
S.L. v. Steven L., supra note 2.
12
Id.
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defendant’s actions created substantial connections with the
forum state, resulting in the defendant’s purposeful availment
of the forum state’s benefits and protections.13
[14,15] In analyzing personal jurisdiction, we consider
the quality and type of the defendant’s activities in deciding
whether the defendant has the necessary minimum contacts
with the forum state to satisfy due process.14 A court exercises
two types of personal jurisdiction depending upon the facts
and circumstances of the case: general personal jurisdiction or
specific personal jurisdiction. In the exercise of general per-
sonal jurisdiction, the plaintiff’s claim does not have to arise
directly out of the defendant’s contacts with the forum state if
the defendant has engaged in “‘“‘continuous and systematic
general business contacts’”’” with the forum state.15
[16] But if the defendant’s contacts are neither substantial
nor continuous and systematic, as Abdouch concedes is the
case here, and instead the cause of action arises out of or is
related to the defendant’s contacts with the forum, a court may
assert specific jurisdiction over the defendant, depending upon
the nature and quality of such contact.16
In favor of specific jurisdiction, Abdouch argues that
Lopez and KLB’s Internet advertisement deliberately targeted
Abdouch and other Nebraska residents. Abdouch argues that
under a U.S. Supreme Court case, Lopez’ and KLB’s inten-
tional tortious actions against her create specific jurisdiction
in Nebraska.17
(a) “Sliding Scale” Test
[17] The Internet and its interaction with personal jurisdic-
tion over a nonresident is an issue of first impression for this
court. Although other courts will help guide our decision, we
take note that technological advances do not render impotent
13
Id.
14
Id.
15 Id. at 652, 742 N.W.2d at 741.
16
See Quality Pork Internat. v. Rupari Food Servs., supra note 8.
17
See Calder v. Jones, 465 U.S. 783, 104 S. Ct. 1482, 79 L. Ed. 2d 804
(1984).
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our longstanding principles on personal jurisdiction. The U.S.
Supreme Court explained:
As technological progress has increased the flow of com-
merce between States, the need for jurisdiction over non-
residents has undergone a similar increase. At the same
time, progress in communications and transportation has
made the defense of a suit in a foreign tribunal less bur-
densome. In response to these changes, the requirements
for personal jurisdiction over nonresidents have evolved
from the rigid rule of Pennoyer v. Neff, 95 U.S. 714
[(1877)], to the flexible standard of International Shoe
Co. v. Washington, 326 U.S. 310 [(1945)]. But it is a mis-
take to assume that this trend heralds the eventual demise
of all restrictions on the personal jurisdiction of state
courts. . . . Those restrictions are more than a guarantee
of immunity from inconvenient or distant litigation. They
are a consequence of territorial limitations on the power
of the respective States.18
[18] With this in mind, the Eighth Circuit, as well as the
majority of circuits,19 has adopted the analytical framework
set forth in Zippo Mfg. Co. v. Zippo Dot Com, Inc.,20 for inter-
net jurisdiction cases.21 In that case, Zippo Manufacturing
Company filed a complaint in Pennsylvania against nonresi-
dent Zippo Dot Com, Inc., alleging causes of action under
the federal Trademark Act of 1946. Zippo Dot Com’s contact
with Pennsylvania consisted of over 3,000 Pennsylvania resi-
dents subscribing to its Web site. The district court in Zippo
18
Hanson v. Denckla, 357 U.S. 235, 250-51, 78 S. Ct. 1228, 2 L. Ed. 2d
1283 (1958) (citation omitted).
19
See, Best Van Lines, Inc. v. Walker, 490 F.3d 239 (2d Cir. 2007); Toys
“R” Us, Inc. v. Step Two, S.A., 318 F.3d 446 (3d Cir. 2003); ALS Scan,
Inc. v. Digital Service Consultants, 293 F.3d 707 (4th Cir. 2002); Mink v.
AAAA Development LLC, 190 F.3d 333 (5th Cir. 1999); Neogen Corp. v.
Neo Gen Screening, Inc., 282 F.3d 883 (6th Cir. 2002); Lakin v. Prudential
Securities, Inc., 348 F.3d 704 (8th Cir. 2003); Cybersell, Inc. v. Cybersell,
Inc., 130 F.3d 414 (9th Cir. 1997).
20
Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa.
1997).
21
Lakin v. Prudential Securities, Inc., supra note 19.
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Mfg. Co. famously created a “sliding scale” test that consid-
ers a Web site’s interactivity and the nature of the commercial
activities conducted over the Internet to determine whether the
courts have personal jurisdiction over nonresident defendants.22
The court in Zippo Mfg. Co. explained the “sliding scale”
as follows:
At one end of the spectrum are situations where a defend­
ant clearly does business over the Internet. If the defend­
ant enters into contracts with residents of a foreign
jurisdiction that involve the knowing and repeated trans-
mission of computer files over the Internet, personal
jurisdiction is proper. . . . At the opposite end are situ-
ations where a defendant has simply posted information
on an Internet Web site which is accessible to users in
foreign jurisdictions. A passive Web site that does little
more than make information available to those who are
interested in it is not grounds for the exercise [of] per-
sonal jurisdiction. . . . The middle ground is occupied by
interactive Web sites where a user can exchange informa-
tion with the host computer. In these cases, the exercise
of jurisdiction is determined by examining the level of
interactivity and commercial nature of the exchange of
information that occurs on the Web site.23
The district court held that Pennsylvania had personal juris-
diction over Zippo Dot Com and the causes of action. In doing
so, the district court made two important findings. First, the
district court found that the Zippo Dot Com Web site was a
highly interactive commercial Web site. Second, and more
important, the district court found that the trademark infringe-
ment causes of action were related to the business contacts
with customers in Pennsylvania.
[19] Although widely recognized and accepted, most circuits
use the Zippo Mfg. Co. sliding scale of interactivity test only
as a starting point. As the Second Circuit noted, “‘it does not
amount to a separate framework for analyzing internet-based
22
Zippo Mfg. Co. v. Zippo Dot Com, Inc., supra note 20, 952 F. Supp. at
1124.
23
Id. (citations omitted).
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jurisdiction’”; instead, “‘traditional statutory and constitutional
principles remain the touchstone of the inquiry.’”24
The Seventh Circuit has noted that “‘[c]ourts should be care-
ful in resolving questions about personal jurisdiction involv-
ing online contacts to ensure that a defendant is not haled
into court simply because the defendant owns or operates a
website that is accessible in the forum state, even if that site
is “interactive.”’”25 Many courts have held that even if the
defendant operates a “‘highly interactive’” Web site which is
accessible from, but does not target, the forum state, then the
defendant may not be haled into court in that state without
offending the Constitution.26
Our precedent states that for there to be specific personal
jurisdiction, the cause of action must arise out of or be related
to the defendant’s contacts with the forum state.27 This is con-
sistent with the U.S. Supreme Court’s precedent which has
stated “mere purchases, even if occurring at regular intervals,
are not enough to warrant a State’s assertion of in personam
jurisdiction over a nonresident corporation in a cause of action
not related to those purchase transactions.”28
In the case at hand, it is evident that the Web site is inter-
active under the Zippo Mfg. Co. sliding scale test. In his affi-
davit, Lopez admits that customers can browse and purchase
books from the online inventory. Lopez admits that he has two
customers in Nebraska who are on the mailing list for KLB’s
catalogs. He admits that from 2009 through 2011, a total of
$614.87 in sales from the Web site was made to Nebraska resi-
dents out of an estimated $3.9 million in total sales.
24
Best Van Lines, Inc. v. Walker, supra note 19, 490 F.3d at 252.
25
be2 LLC v. Ivanov, 642 F.3d 555, 558 (7th Cir. 2011).
26
Id. at 559. See, also, Carefirst of Maryland v. Carefirst Pregnancy Ctrs.,
334 F.3d 390 (4th Cir. 2003); Rio Properties, Inc. v. Rio Intern. Interlink,
284 F.3d 1007 (9th Cir. 2002); GTE New Media Services Inc. v. BellSouth
Corp., 199 F.3d 1343 (D.C. Cir. 2000); Minnesota Public Radio v. Virginia
Beach Educ. Br., 519 F. Supp. 2d 970 (D. Minn. 2007).
27
Quality Pork Internat. v. Rupari Food Servs., supra note 8.
28
Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 418, 104 S.
Ct. 1868, 80 L. Ed. 2d 404 (1984).
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But, beyond the minimal Web site sales to Nebraska resi-
dents and mailing catalogs to two Nebraska residents, Lopez’
and KLB’s contacts with Nebraska are nonexistent. Lopez and
KLB do not own, lease, or rent land in Nebraska. They have
never advertised directly in Nebraska, participated in bookfairs
in Nebraska, or attended meetings in Nebraska, and neither has
paid sales tax in Nebraska.
[20] Furthermore, the Seventh Circuit has recently stated
that when “the plaintiff’s claims are for intentional torts, the
inquiry focuses on whether the conduct underlying the claims
was purposely directed at the forum state.”29 The reason for
requiring purposeful direction is to “‘ensure that an out-of-
state defendant is not bound to appear to account for merely
“random, fortuitous, or attenuated contacts” with the forum
state.’”30 Here, Abdouch’s cause of action is an intentional
tort based on Nebraska’s privacy statute. There is no evidence,
as discussed in greater detail later in the opinion, that Lopez
and KLB purposefully directed the advertisement at Nebraska.
Further, there is no evidence that Lopez and KLB intended to
invade Abdouch’s privacy in the State of Nebraska. Rather,
the limited Internet sales appear to be random, fortuitous, and
attenuated contacts with Nebraska.
Therefore, although Lopez and KLB’s Web site is highly
interactive, all of the contacts created by the Web site with
the State of Nebraska are unrelated to Abdouch’s cause
of action.
(b) Calder Effects Test
Abdouch argues that the effects test formulated by the U.S.
Supreme Court in Calder v. Jones31 creates personal jurisdic-
tion over Lopez and KLB, because Lopez and KLB aimed
their tortious conduct at Abdouch and the State of Nebraska. In
Calder, two Florida residents participated in the publication of
an article about a California resident who brought a libel action
29
Tamburo v. Dworkin, 601 F.3d 693, 702 (7th Cir. 2010).
30
Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S. Ct.
2174, 85 L. Ed. 2d 528 (1985)).
31
Calder v. Jones, supra note 17.
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in California against the Florida residents. Both defendants
asserted that as Florida residents, they were not subject to the
jurisdiction of the California court in which the libel action
was filed. The Supreme Court rejected the defendants’ argu-
ment and noted that the defendants were
not charged with mere untargeted negligence. Rather,
their intentional, and allegedly tortious, actions were
expressly aimed at California. Petitioner[s] wrote and . . .
edited an article that they knew would have a potentially
devastating impact upon respondent. And they knew that
the brunt of that injury would be felt by respondent in
the State in which she lives and works and in which
the National Enquirer has its largest circulation. Under
the circumstances, petitioners must “reasonably anticipate
being haled into court there” to answer for the truth of the
statements made in their article.32
[21] In coming to its holding, the U.S. Supreme Court cre-
ated a test, now known as the Calder effects test, which has
been explained by the Eighth Circuit:
“[A] defendant’s tortious acts can serve as a source of
personal jurisdiction only where the plaintiff makes a
prima facie showing that the defendant’s acts (1) were
intentional, (2) were uniquely or expressly aimed at the
forum state, and (3) caused harm, the brunt of which was
suffered—and which the defendant knew was likely to be
suffered—[in the forum state].”33
The Third Circuit has noted that the effects test “can
only be satisfied if the plaintiff can point to contacts which
demonstrate that the defendant expressly aimed its tortious
conduct at the forum, and thereby made the forum the focal
point of the tortious activity.”34 Stated another way by the
Third Circuit, “the effects test asks whether the plaintiff felt
the brunt of the harm in the forum state, but it also asks
whether defendants knew that the plaintiff would suffer the
32
Id. at 789-90 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S.
286, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980)).
33
Johnson v. Arden, 614 F.3d 785, 796 (8th Cir. 2010).
34
IMO Industries, Inc. v. Kiekert AG, 155 F.3d 254, 265 (3d Cir. 1998).
Nebraska Advance Sheets
732 285 NEBRASKA REPORTS
harm there and whether they aimed their tortious conduct at
that state.”35 Similarly, the Eighth Circuit has stated that the
Calder effects test “allows the assertion of personal jurisdic-
tion over non-resident defendants whose acts ‘are performed
for the very purpose of having their consequences felt in the
forum state.’”36
In the context of Internet intentional tort cases, the federal
circuit courts have rejected the argument that posting defama-
tory or invasive material to the World Wide Web is sufficient
to confer personal jurisdiction. In Johnson v. Arden,37 the
plaintiffs filed a suit as a result of allegedly defamatory state-
ments posted on an Internet discussion board. The complaint
alleged that the Internet post stated, “‘[The defendants] oper-
ated from Unionville, Missouri, where they killed cats, sold
infected cats and kittens, brutally killed and tortured unwanted
cats and operated a “kitten mill” in Unionville Missouri.’”38
The Eighth Circuit, accepting the allegations as true, found
that the posting did not specifically target Missouri. Although
Missouri was included in the posting, Missouri’s inclusion was
incidental and not performed for the purposes of having the
consequences felt in Missouri. The Eighth Circuit held that it
“construe[s] the Calder effects test narrowly, and hold[s] that,
absent additional contacts, mere effects in the forum state are
insufficient to confer personal jurisdiction.”39
In Young v. New Haven Advocate,40 two Connecticut
newspapers posted Internet articles that allegedly defamed a
Virginia prison warden. The Fourth Circuit held that Virginia
did not have personal jurisdiction because the Connecticut
defendants “did not manifest an intent to aim their websites
35
Marten v. Godwin, 499 F.3d 290, 299 (3d Cir. 2007) (emphasis in
original).
36
Dakota Industries v. Dakota Sportswear, 946 F.2d 1384, 1390-91 (8th Cir.
1991) (quoting Brainerd v. Governors of the University of Alberta, 873
F.2d 1257 (9th Cir. 1989)).
37
Johnson v. Arden, supra note 33.
38
Id. at 796.
39 Id. at 797.
40 Young v. New Haven Advocate, 315 F.3d 256 (4th Cir. 2002).
Nebraska Advance Sheets
ABDOUCH v. LOPEZ 733
Cite as 285 Neb. 718
or the posted articles at a Virginia audience.”41 The court
observed that making the articles available to Virginia resi-
dents was not enough: “The newspapers must, through the
Internet postings, manifest an intent to target and focus on
Virginia readers.”42
In Revell v. Lidov,43 the defendant wrote a lengthy article
posted on an Internet bulletin board on the terrorist bomb-
ing of Pan Am Flight 103, in which he, in part, accused the
plaintiff of complicity in conspiracy and coverup. Rejecting
personal jurisdiction in the plaintiff’s forum state of Texas,
the Fifth Circuit held that the defendant, who is not a Texas
resident, did not expressly aim the posting at Texas, but,
rather, at the entire world. The Fifth Circuit went on to say
that “[k]nowledge of the particular forum in which a potential
plaintiff will bear the brunt of the harm forms an essential part
of the Calder test.”44
As in Johnson, Young, and Revell, Lopez and KLB’s place-
ment of the advertisement online was directed at the entire
world, without expressly aiming the posting at the State of
Nebraska. Abdouch pleaded in her complaint that the adver-
tisement was “‘broadcast’ or sent out over the world wide
web,” but Abdouch failed to plead facts that demonstrate
that Nebraska residents were targeted with the advertisement.
Although the advertisement does mention that “Abdouch was
the executive secretary of the Nebraska (John F.) Kennedy
organization,” the advertisement does not expressly direct its
offer of sale to Nebraska. As in Johnson, the mention of
Nebraska here is incidental and was not included for the
purposes of having the consequences felt in Nebraska. As in
Revell, Lopez did not know that Abdouch was a resident of
Nebraska. He assumed that she had passed away and thus
had no way of knowing that the brunt of harm would be suf-
fered in Nebraska. Abdouch’s complaint fails to demonstrate
41
Id. at 258-59.
42 Id. at 263 (emphasis supplied).
43
Revell v. Lidov, 317 F.3d 467 (5th Cir. 2002).
44
Id. at 475.
Nebraska Advance Sheets
734 285 NEBRASKA REPORTS
that Lopez and KLB had an intent to target and focus on
Nebraska residents.
[22] In response, Abdouch alleges that this court gained
personal jurisdiction in June 2011, when she had a representa-
tive contact Lopez with her objection to his commercial use of
her name and identity in his advertisement. Abdouch cites the
Eighth Circuit for the proposition that “‘[m]inimum contacts
must exist either at the time the cause of action arose, the
time the suit was filed, or within a reasonable period of time
immediately prior to the filing of the lawsuit.’”45 However,
as stated by the U.S. Supreme Court in Burger King Corp. v.
Rudzewicz,46 “‘it is essential in each case that there be some
act by which the defendant purposefully avails itself of the
privilege of conducting activities within the forum State, thus
invoking the benefits and protections of its laws.’” We have
held that under a personal jurisdiction analysis, the unilateral
activity of those who claim some relationship with a nonresi-
dent defendant cannot satisfy the requirement of contact with
the forum state.47 Thus, personal jurisdiction over Lopez and
KLB cannot be created by the telephone call from Abdouch’s
representative to Lopez. Such contact is insufficient for per-
sonal jurisdiction purposes.
Even accepting Abdouch’s allegations as true and review-
ing the record in a light most favorable to Abdouch, we find
that Abdouch’s complaint and general allegations failed to
show that Lopez and KLB “‘uniquely or expressly aimed’” the
Internet advertisement at Nebraska.48
VI. CONCLUSION
We conclude that Abdouch’s complaint fails to plead facts
to demonstrate that Lopez and KLB have sufficient minimum
45
See Johnson v. Woodcock, 444 F.3d 953, 955 (8th Cir. 2006) (quoting
Pecoraro v. Sky Ranch for Boys, Inc., 340 F.3d 558 (8th Cir. 2003)).
46
Burger King Corp. v. Rudzewicz, supra note 30, 471 U.S. at 475 (emphasis
supplied).
47
Brunkhardt v. Mountain West Farm Bureau Mut. Ins., supra note 7.
48
See Johnson v. Arden, supra note 33, 614 F.3d at 796.
Nebraska Advance Sheets
ZWIENER v. BECTON DICKINSON-EAST 735
Cite as 285 Neb. 735
contacts with the State of Nebraska. Although the Web site
used to post the advertisement is interactive, the contacts
created by the Web site are unrelated to Abdouch’s cause of
action. Furthermore, under the Calder effects test, the plead-
ings fail to establish that Lopez and KLB expressly aimed their
tortious conduct at the State of Nebraska. For these reasons,
Lopez and KLB could not have anticipated being haled into a
Nebraska court for their online advertisement.
Affirmed.
Miller-Lerman, J., not participating.
Pat Zwiener, appellee and cross-appellant,
v. Becton Dickinson-East, appellant
and cross-appellee.
___ N.W.2d ___
Filed April 19, 2013. No. S-12-563.
1. Workers’ Compensation. Whether a plaintiff in a Nebraska workers’ compensa-
tion case is totally disabled is a question of fact.
2. Workers’ Compensation: Evidence: Appeal and Error. In testing the suffi-
ciency of the evidence to support the findings of fact in a workers’ compensation
case, every controverted fact must be resolved in favor of the successful party
and the successful party will have the benefit of every inference that is reason-
ably deducible from the evidence.
3. Workers’ Compensation: Words and Phrases. Temporary disability is the
period during which the employee is submitting to treatment, is convalescing, is
suffering from the injury, and is unable to work because of the accident.
4. Workers’ Compensation. Total disability exists when an injured employee is
unable to earn wages in either the same or a similar kind of work he or she was
trained or accustomed to perform or in any other kind of work which a person of
the employee’s mentality and attainments could perform.
5. ____. The level of a worker’s disability depends on the extent of diminished
employability or impairment of earning capacity, and does not directly correlate
to current wages.
6. ____. An employee’s return to work at wages equal to those received before the
injury may be considered, but it does not preclude a finding that the employee is
either partially or totally disabled.
7. ____. Earning capacity determinations should not be distorted by factors such as
business booms, sympathy of a particular employer or friends, temporary good
luck, or the superhuman efforts of the claimant to rise above his or her crip-
pling handicaps.