Wheelbarger v. Detroit Diesel , 31 Neb. Ct. App. 145 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/05/2022 08:07 AM CDT
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
WHEELBARGER v. DETROIT DIESEL
Cite as 31 Neb. App. 145Shawn Wheelbarger, appellant, v.
Detroit Diesel ECM, LLC, a Michigan
limited liability company, and Mike
Rodriguez, doing business as M & C
Distributing, appellees.
___ N.W.2d ___
Filed June 28, 2022. No. A-21-556.
1. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional
question does not involve a factual dispute, determination of a juris-
dictional issue is a matter of law which requires an appellate court to
determine the matter independently of the trial court.
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. Motions to Dismiss: Appeal and Error. In reviewing the grant of a
motion to dismiss, 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.
4. Jurisdiction: Words and Phrases. Personal jurisdiction is the power of
a tribunal to subject and bind a particular entity to its decisions.
5. Pleadings: Proof. Confronted with a special appearance, a plaintiff has
the burden to establish facts which demonstrate the court’s personal
jurisdiction over the defendant.
6. Pleadings: Jurisdiction: Affidavits: Proof. In a hearing on a special
appearance, an affidavit may be used to prove or disprove the factual
basis for a court’s assertion or exercise of personal jurisdiction over
a defendant.
7. Due Process: Jurisdiction: States. When determining whether a court
has personal jurisdiction over a party, it must first determine whether a
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
WHEELBARGER v. DETROIT DIESEL
Cite as 31 Neb. App. 145state’s long-arm statute is satisfied, and if the long-arm statute is satis-
fied, whether minimum contacts exist between the defendant and the
forum state for personal jurisdiction over the defendant without offend-
ing due process.
8. Constitutional Law: Jurisdiction: States. Nebraska’s long-arm stat-
ute, Neb. Rev. Stat. § 25-536 (Reissue 2016), provides that a court
may exercise personal jurisdiction over a person who has any contact
with or maintains any relation to this state to afford a basis for the
exercise of personal jurisdiction consistent with the Constitution of the
United States.
9. Jurisdiction: States: Legislature: Intent. It was the intention of the
Legislature to provide for the broadest allowable jurisdiction over non-
residents under Nebraska’s long-arm statute.
10. Due Process: Jurisdiction: States. The Due Process Clause protects an
individual’s liberty interest in not being subject to the binding judgments
of a forum with which he or she has established no meaningful contacts,
ties, or relations.
11. ____: ____: ____. To subject an out-of-state defendant to personal
jurisdiction in a forum court, due process requires the defendant to have
minimum contacts with the forum state so as not to offend traditional
notions of fair play and substantial justice.
12. ____: ____: ____. Due process is satisfied where the nonresident
defend­ant’s minimum contacts are such that the defendant should rea-
sonably anticipate being haled into court there.
13. Jurisdiction: States. Whether a forum state court has personal jurisdic-
tion over a nonresident defendant depends on whether the 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.
14. ____: ____. A court exercises two types of personal jurisdiction depend-
ing upon the facts and circumstances of the case: general personal juris-
diction or specific personal jurisdiction.
15. ____: ____. A court has general personal jurisdiction over a nonresident
defendant if the defendant has engaged in continuous and systematic
business connections with the forum state.
16. ____: ____. When a court is exercising general personal jurisdiction,
the plaintiff’s claim does not have to arise directly from the defendant’s
conduct in the forum state.
17. ____: ____. Specific personal jurisdiction arises where the nonresident
defendant’s contacts with the forum state are neither continuous nor sys-
tematic, but the plaintiff’s claim arises from the defendant’s minimum
contacts with the forum.
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
WHEELBARGER v. DETROIT DIESEL
Cite as 31 Neb. App. 14518. ____: ____. Whether a forum state court has personal jurisdiction over
a nonresident defendant depends on whether the defendant’s contacts
with Nebraska are the result of unilateral acts performed by someone
other than the defendant, or whether the defendant himself or herself
has acted in a manner which creates substantial connections with the
forum state.
19. ____: ____. If a court determines that a defendant has sufficient mini-
mum contacts with the forum state, the court must then weigh the facts
of the case to determine whether exercising personal jurisdiction would
comport with fair play and substantial justice.
20. ____: ____. The “sliding scale” test in Zippo Mfg. Co. v. Zippo Dot
Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997), considers a website’s
interactivity and the nature of the commercial activities conducted over
the internet to determine whether the courts have personal jurisdiction
over nonresident defendants.
21. 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.
22. Jurisdiction: States. 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.
23. Jurisdiction: States: Sales. Mere purchases, even if occurring at regu-
lar 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.
24. Jurisdiction: States. In describing how the general principles govern-
ing an evaluation of minimum contacts relate to the test in Zippo Mfg.
Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997), a court
considers five distinct factors: (1) the nature and quality of the defend­
ant’s contacts with the forum state, (2) the quantity of contacts, (3) the
relationship between the cause of action and the contacts, (4) the forum
state’s interest in providing a forum for its residents, and (5) the conve-
nience of the parties. The first three factors are closely related and are
of primary importance, while the last two factors are secondary.
25. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
Appeal from the District Court for Buffalo County: John H.
Marsh, Judge. Affirmed.
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Nebraska Court of Appeals Advance Sheets
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WHEELBARGER v. DETROIT DIESEL
Cite as 31 Neb. App. 145Jared J. Krejci, of Smith, Johnson, Allen, Connick & Hansen
for appellant.
No appearance for appellees.
Pirtle, Chief Judge, and Riedmann and Welch, Judges.
Welch, Judge.
INTRODUCTION
Shawn Wheelbarger appeals from the order of the Buffalo
County District Court dismissing his complaint against Detroit
Diesel ECM, LLC (Detroit Diesel), and Mike Rodriguez, doing
business as M & C Distributing (M & C), for lack of personal
jurisdiction. For the reasons set forth herein, we affirm.
STATEMENT OF FACTS
In August 2017, Wheelbarger filed a complaint which
asserted that Newcomb Diesel LLC (Newcomb), Detroit
Diesel, and Rodriguez, doing business as M & C, were liable
for damage to Wheelbarger’s semi-trucks which was caused by
software installed by Newcomb while completing maintenance
and repairs on the trucks.
Newcomb is a limited liability company organized
in Nebraska with its principal place of business located in
Kearney, Nebraska. M & C was the sole proprietorship of
Rodriguez, who resided in Shelbyville, Michigan, prior to
Rodriguez’ transitioning the business into a limited liability
company which he named “Detroit Diesel.” Detroit Diesel is
organized in Michigan, with its principal place of business in
Wayland, Michigan. Rodriguez, doing business as M & C, and
Detroit Diesel will collectively be referred to as the “Michigan
Defendants.” The Michigan Defendants entered a special
appearance and filed a motion to dismiss Wheelbarger’s com-
plaint for lack of personal jurisdiction. The motion to dis-
miss asserted that the Michigan Defendants did not have
sufficient minimum contacts with the State of Nebraska to
establish general or specific personal jurisdiction and that
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WHEELBARGER v. DETROIT DIESEL
Cite as 31 Neb. App. 145Wheelbarger failed to satisfy his burden to show that the court
had jurisdiction over them.
At a hearing held in February 2018, the matter was submit-
ted solely on the pleadings and supporting affidavits.
In March 2018, the district court dismissed Wheelbarger’s
complaint as to the Michigan Defendants stating:
In the present matter there is no evidence of any contact
between [Wheelbarger] and the Michigan [Defendants],
the reasonable inferences are that there was not. The
benchmark for determining whether the exercise of per-
sonal jurisdiction satisfies due process is whether the
defendant’s minimum contacts with the forum state are
such that the defendant should reasonably anticipate
being haled into court there. VKGS [v. Planet Bingo, 285
Neb. 599, 828 N.W.2d 168 (2013)]. The Court finds that
[Wheelbarger] has failed to make a prima facie showing
that the Michigan Defendants have the requisite minimum
contacts with the State of Nebraska.
Wheelbarger and Newcomb subsequently filed a joint motion
and stipulation for dismissal with prejudice as to Newcomb.
The court dismissed the action on June 4, 2021. Wheelbarger
appealed the court’s March 2018 order granting the Michigan
Defendants’ motion to dismiss after the final order was entered
on June 4.
ASSIGNMENT OF ERROR
Wheelbarger assigns that the district court erred in grant-
ing the Michigan Defendants’ motion to dismiss on the basis
that the court lacked personal jurisdiction over the Michigan
Defendants. Wheelbarger does not assert any error related to
the district court’s dismissal of Newcomb.
STANDARD OF REVIEW
[1] When a jurisdictional question does not involve a fac-
tual dispute, determination of a jurisdictional issue is a matter
of law which requires an appellate court to determine the mat-
ter independently of the trial court. Brunkhardt v. Mountain
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WHEELBARGER v. DETROIT DIESEL
Cite as 31 Neb. App. 145West Farm Bureau Mut. Ins., 269 Neb. 222, 691 N.W.2d
147 (2005).
[2] 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 ques-
tion of whether the nonmoving party has established a prima
facie case of personal jurisdiction de novo. Nimmer v. Giga
Entertainment Media, 298 Neb. 630, 905 N.W.2d 523 (2018);
Applied Underwriters v. E.M. Pizza, 26 Neb. App. 906, 923
N.W.2d 789 (2019).
[3] In reviewing the grant of a motion to dismiss, an appel-
late 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. Id.ANALYSIS
[4-6] Before addressing Wheelbarger’s assigned error, a
brief review of the law concerning personal jurisdiction is in
order. Personal jurisdiction is the power of a tribunal to sub-
ject and bind a particular entity to its decisions. Quality Pork
Internat. v. Rupari Food Servs., 267 Neb. 474, 675 N.W.2d
642 (2004). Confronted with a special appearance, a plaintiff
has the burden to establish facts which demonstrate the court’s
personal jurisdiction over the defendant. Id. In a hearing on
a special appearance, an affidavit may be used to prove or
disprove the factual basis for a court’s assertion or exercise
of personal jurisdiction over a defendant. Id. When a jurisdic-
tional question does not involve a factual dispute, determina-
tion of a jurisdictional issue is a matter of law which requires
an appellate court to reach a conclusion independent from the
trial court. Id.[7-16] As this court recently explained in Applied
Underwriters v. E.M. Pizza, 26 Neb. App. at 911-13, 923
N.W.2d at 796-97:
When determining whether a court has personal juris-
diction over a party, it must first determine whether a
state’s long-arm statute is satisfied, and if the long-arm
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WHEELBARGER v. DETROIT DIESEL
Cite as 31 Neb. App. 145statute is satisfied, whether minimum contacts exist
between the defendant and the forum state for personal
jurisdiction over the defendant without offending due
process. See RFD-TV v. WildOpenWest Finance, 288 Neb.
318, 849 N.W.2d 107 (2014). Nebraska’s long-arm stat-
ute, § 25-536, provides that a court may exercise personal
jurisdiction over a person who has any contact with
or maintains any relation to this state to afford a basis
for the exercise of personal jurisdiction consistent with
the Constitution of the United States. VKGS v. Planet
Bingo, 285 Neb. 599, 828 N.W.2d 168 (2013). It was the
intention of the Legislature to provide for the broadest
allowable jurisdiction over nonresidents under Nebraska’s
long-arm statute. Id. . . .
The Due Process Clause protects an individual’s lib-
erty interest in not being subject to the binding judg-
ments of a forum with which he or she has established
no meaningful contacts, ties, or relations. Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 105 S. Ct. 2174, 85 L.
Ed. 2d 528 (1985). To subject an out-of-state defendant
to personal jurisdiction in the forum court, due process
requires the defendant to have minimum contacts with
the forum state so as not to offend traditional notions of
fair play and substantial justice. VKGS v. Planet Bingo,
supra. Due process is satisfied where the nonresident
defendant’s minimum contacts are such that the defendant
should reasonably anticipate being haled into court there.
See id. Further, whether a forum state court has personal
jurisdiction over a nonresident defendant depends on
whether the defendant’s actions created substantial con-
nections with the forum state, resulting in the defendant’s
purposeful availment of the forum state’s benefits and
protections. Id.
A court exercises two types of personal jurisdic-
tion depending upon the facts and circumstances of the
case: general personal jurisdiction and specific personal
jurisdiction. Nimmer v. Giga Entertainment Media, 298
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WHEELBARGER v. DETROIT DIESEL
Cite as 31 Neb. App. 145Neb. 630, 905 N.W.2d 523 (2018). A court has general
personal jurisdiction over a nonresident defendant if the
defendant has engaged in continuous and systematic
business connections with the forum state. See id. When
a court is exercising general personal jurisdiction, the
plaintiff’s claim does not have to arise directly from the
defendant’s conduct in the forum state. See id.In the present case, the Michigan Defendants did not
engage in continuous and systematic business connections in
Nebraska, and Wheelbarger does not appear to assert other­
wise. Therefore, if the court has personal jurisdiction over
the Michigan Defendants, it can only be under specific per-
sonal jurisdiction.
[17-19] As we further stated:
Specific personal jurisdiction arises where the non-
resident defendant’s contacts with the forum state are nei-
ther continuous nor systematic, but the plaintiff’s claim
arises from the defendant’s minimum contacts with the
forum. See [Nimmer v. Giga Entertainment Media, 298
Neb. 630, 905 N.W.2d 523 (2018)]. Whether a forum
state court has personal jurisdiction over a nonresident
defendant depends on whether the defendant’s contacts
with the forum state are the result of unilateral acts per-
formed by someone other than the defendant, or whether
the defendant himself acted in a manner which creates
substantial connections with the forum state. Quality
Pork Internat. v. Rupari Food Servs., 267 Neb. 474, 675
N.W.2d 642 (2004).
If a court determines that a defendant has sufficient
minimum contacts with the forum state, the court must
then weigh the facts of the case to determine whether
exercising personal jurisdiction would comport with fair
play and substantial justice. See VKGS v. Planet Bingo,
285 Neb. 599, 828 N.W.2d 168 (2013).
Applied Underwriters v. E.M. Pizza, 26 Neb. App. 906, 913,
923 N.W.2d 789, 797 (2019).
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Cite as 31 Neb. App. 145Minimum Contacts
Here, the district court found that the Michigan Defendants
did not have sufficient minimum contacts with Nebraska, and
therefore, it never reached the issue of whether it would be
fair and reasonable to exercise personal jurisdiction over them.
We agree.
The relevant facts in this record were contained in an
affidavit provided by Rodriguez. Rodriguez explained that
he operates M & C and Detroit Diesel as a “‘middleman’”
to connect software designers to mechanics in need of soft-
ware for semi-tractor engines to increase performance. In that
regard, Rodriguez explained he has a website, which does not
target Nebraska or its residents. Newcomb Diesel responded
to this website looking for a software developer. To that
end, Rodriguez relayed Newcomb Diesel’s request to a soft-
ware designer who then communicated directly with Newcomb
Diesel to obtain its desired software. Rodriguez explained
that this is the normal way in which his business operates. He
stated that he is not involved in communications between the
mechanic and software designer and that the software itself
is sent directly by the designer to the mechanic. Rodriguez
is involved in invoicing as a way of collecting a commission
for having made the contact. To that end, Rodriguez explained
that as to this particular request, neither Rodriguez nor Detroit
Diesel manufactured, designed, wrote code for, or created the
software for Newcomb Diesel. Neither Rodriguez nor Detroit
Diesel was involved in any contract between Wheelbarger and
Newcomb Diesel or served any role other than locating the
software designer at Newcomb Diesel’s request, for which it
received a fee of $200. Both Rodriguez and Detroit Diesel are
located in Michigan; do not maintain any office or physical
presence in Nebraska; do not own property, keep records, or
employ anyone in Nebraska; and do not generate continued
revenue from Nebraska.
It is clear from this record that the Michigan Defendants’
involvement in this action stems from Detroit Diesel’s
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WHEELBARGER v. DETROIT DIESEL
Cite as 31 Neb. App. 145request for software resulting from an advertisement on the
Michigan Defendants’ website. As a result of that request, the
Michigan Defendants relayed the information to a third-party
software developer who then negotiated a deal with Newcomb
Diesel, which then installed the software for Wheelbarger. The
Michigan Defendants represented that this is their standard
business practice. The nature of Wheelbarger’s claim against
the Michigan Defendants sounds in negligence, strict products
liability, and breach of warranty related to this software. The
question becomes whether the Michigan Defendants’ internet-
based practices, all of which originated from the State of
Michigan, created sufficient minimum contacts with this state
such that the Michigan Defendants should reasonably antici-
pate being haled into court in this state.
[20-23] The framework for a personal jurisdiction analysis
of these facts was set forth by the Nebraska Supreme Court in
Abdouch v. Lopez, 285 Neb. 718, 829 N.W.2d 662 (2013). In
Abdouch, the plaintiff, a Nebraska resident, sued a book com-
pany located in Massachusetts for violating her privacy rights
in connection with an advertisement on its website which used
her name. In analyzing whether the book company had suffi-
cient minimum contacts with the State of Nebraska in connec-
tion with its internet-based practices, the Nebraska Supreme
Court held:
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 our longstanding principles on per-
sonal jurisdiction. The U.S. Supreme Court explained:
“As technological progress has increased the flow of
commerce between States, the need for jurisdiction over
nonresidents has undergone a similar increase. At the
same time, progress in communications and transporta-
tion has made the defense of a suit in a foreign tribu-
nal less burdensome. In response to these changes, the
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WHEELBARGER v. DETROIT DIESEL
Cite as 31 Neb. App. 145requirements for personal jurisdiction over nonresidents
have evolved from the rigid rule of Pennoyer v. Neff,
95 [U.S.] 714[, 24 L. Ed. 565] [(1877)], [overruled in
part, Shaffer v. Heitner, 433 U.S. 186, 97 S. Ct. 2569,
53 L. Ed. 2d 683 (1977),] to the flexible standard of
International Shoe Co. v. Washington, 326 U.S. 310[, 66
S. Ct. 154, 90 L. Ed. 95] [(1945)]. But it is a mistake
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.”
With this in mind, the Eighth Circuit, as well as the
majority of circuits, has adopted the analytical frame-
work set forth in Zippo Mfg. Co. v. Zippo Dot Com,
Inc., [952 F. Supp. 1119 (W.D. Pa. 1997),] for internet
jurisdiction cases. In that case, Zippo Manufacturing
Company filed a complaint in Pennsylvania against non-
resident 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 residents subscribing to its Web site. The
district court in Zippo Mfg. Co. famously created a “slid-
ing scale” test that 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 nonresident defendants. The
court in Zippo Mfg. Co. explained the “sliding scale” as
follows: “At one end of the spectrum are situations where
a defendant clearly does business over the Internet. If the
defendant enters into contracts with residents of a for-
eign jurisdiction that involve the knowing and repeated
transmission of computer files over the Internet, personal
jurisdiction is proper. . . . At the opposite end are situa-
tions where a defendant has simply posted information
on an Internet Web site which is accessible to users in
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Cite as 31 Neb. App. 145foreign 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.”
The district court held that Pennsylvania had per-
sonal jurisdiction 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 infringement causes of action
were related to the business contacts with customers
in Pennsylvania.
Although widely recognized and accepted, most cir-
cuits 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 ana-
lyzing internet-based jurisdiction’”; instead, “‘traditional
statutory and constitutional principles remain the touch-
stone of the inquiry.’”
The Seventh Circuit has noted that “‘[c]ourts should
be careful in resolving questions about personal jurisdic-
tion involving 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.”’” 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 offend-
ing the Constitution.
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Cite as 31 Neb. App. 145Our precedent states that for there to be specific per-
sonal jurisdiction, the cause of action must arise out of
or be related to the defendant’s contacts with the forum
state. This is consistent 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.”
Abdouch v. Lopez, 285 Neb. 718, 726-29, 829 N.W.2d 662,
671-73 (2013).
[24] Further, in describing how the general principles gov-
erning an evaluation of minimum contacts relate to the “Zippo
Test,” the Eighth Circuit Court of Appeals held:
With these principles in mind, [the court considers]
five distinct factors: (1) the nature and quality of the
defendant’s contacts with the forum state; (2) the quan-
tity of contacts; (3) the relationship between the cause
of action and the contacts; (4) the forum state’s interest
in providing a forum for its residents; and (5) the conve-
nience of the parties.
Pecoraro v. Sky Ranch for Boys, Inc., 340 F.3d 558, 562 (8th
Cir. 2003). “The first three factors are closely related and are
of primary importance, while the last two factors are second-
ary.” Id.Additionally, in Lakin v. Prudential Securities, Inc., 348
F.3d 704, 710 (8th Cir. 2003), the Eighth Circuit stated:
In Zippo [Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp.
1119, 1124 (W.D. Pa. 1997)]—also a case of specific
jurisdiction—the court examined the few cases that had
previously addressed the issue of whether a Web site
could provide sufficient contacts for specific personal
jurisdiction. It applied the results of these cases to the
traditional personal jurisdiction analytical framework,
noting that “the likelihood that personal jurisdiction can
be constitutionally exercised is directly proportionate to
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Cite as 31 Neb. App. 145the nature and quality of the commercial activity that an
entity conducts over the Internet.” . . . In order to meas­
ure the nature and quality of the commercial activity, the
court created a “sliding scale” to measure the likelihood
of personal jurisdiction.
In performing that analysis, we note Rodriguez’ assertions
that the website does not target Nebraska or its residents.
We further note that the Michigan Defendants’ services per-
formed here were solely in response to an inquiry from a
Nebraska company generated from that website which resulted
in the Michigan Defendants’ locating a software developer
for the Nebraska company. The Michigan Defendants did not
negotiate, contract for, or sell the product notwithstanding
the allegations that they should be legally liable for negli-
gence, strict products liability, and breach of warranty for
those products.
A similar scenario was presented in Miller v. Berman, 289
F. Supp. 2d 1327 (M.D. Fla. 2003). In Miller, a potential pur-
chaser of a sailboat responded to a website advertisement of
a company seeking a particular type of sailboat. Because the
company did not sell the particular sailboat the purchaser was
looking for, it placed the purchaser in contact with the owner
of a boat dealership which then separately negotiated to sell the
purchaser a customized sailboat. The company received a com-
mission for its services in connecting the parties. The purchaser
later sued the dealer and the company, alleging negligent mis-
representation, breach of warranty, false advertising, and joint
venture liability. The company, an Ohio-based corporation,
moved to dismiss the claim, which had been filed in Florida,
for lack of personal jurisdiction. In describing the framework
for its analysis, the federal district court held:
“Traditionally, when an entity intentionally reaches
beyond its boundaries to conduct business with foreign
residents, the exercise of specific jurisdiction is proper.
Different results should not be reached simply because
business is conducted over the Internet.” [Zippo Mfg.
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Cite as 31 Neb. App. 145Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119,] 1124
[(W.D. Pa. 1997)]. However, the law surrounding issues
of jurisdiction and the internet has not fully developed,
and the case law on this subject suggests that a Court
must look at the nature of a website and the commercial
activity actually being conducted over a website in order
to determine whether personal jurisdiction can be consti-
tutionally exercised. See [id.] (explaining that 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).
For example, “[a]t one end of the spectrum are sit­
uations where a defendant clearly does business over
the Internet. If the defendant enters into contracts with
residents of a foreign jurisdiction that involve the know-
ing and repeated transmission of computer files over the
internet, personal jurisdiction is proper. At the opposite
end are situations 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 personal juris-
diction.” Zippo, 952 F.Supp. at 1124 (internal citations
omitted) (emphasis added). In order to determine whether
personal jurisdiction can be exerted over Defendants in
this instance the Court must examine the nature of the
interaction between [the plaintiff] and Defendants over
the Internet. Based on the information on the record, the
Defendants did not conduct business over the Internet, nor
did Defendants solicit business over the Internet. Rather,
it was [the plaintiff] who contacted Defendants via e-mail
after [the plaintiff] came across Defendants’ Informational
website on the Internet.
The website at issue here is a passive one which
merely makes information available to individuals who
are interested in purchasing sailboats. Thus, the exercise
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WHEELBARGER v. DETROIT DIESEL
Cite as 31 Neb. App. 145of jurisdiction over Defendants in the State of Florida
is not proper because placing an informational website
on the Internet does not amount to sufficient contacts
with the forum. To hold otherwise would undermine the
policy behind the minimum contacts framework which
seeks to protect defendants from being haled into court
in a foreign jurisdiction based upon contacts that are ran-
dom or attenuated. Zippo, 952 F.Supp. at 1123 (explain-
ing that minimum contacts analysis protects defendants
from being forced to answer for their actions into foreign
jurisdictions based on random, fortuitous or attenuated
contacts). Based upon the nature of the exchange between
the parties over the Internet and the passive website, the
Court concludes that Defendants did not purposefully
direct business activities toward Florida, and therefore,
jurisdiction in Florida would not comport with traditional
notions of fair play and substantial justice.
Miller v. Berman, 289 F. Supp. 2d 1327, 1335-36 (M.D.
Fla. 2003).
We reach a similar conclusion here. Although there is mini-
mal description of the nature of the Michigan Defendants’
website, it appears that the Michigan Defendants did not
actively solicit business in the State of Nebraska, but simply
responded to Newcomb Diesel’s inquiry after Newcomb had
come across the Michigan Defendants’ website. Further, the
Michigan Defendants did not directly contract or sell a product
following the inquiry by Newcomb, but simply facilitated the
request for the product to a third party who negotiated and
supplied the product to Newcomb. The causes of action deal
directly with alleged problems with that product, the nature
of which was separately negotiated with the software devel-
oper and Newcomb Diesel based on Wheelbarger’s expecta-
tions. Under these circumstances, we find that the Michigan
Defendants did not purposefully direct business activities
toward Nebraska and that therefore, the Michigan Defendants
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WHEELBARGER v. DETROIT DIESEL
Cite as 31 Neb. App. 145lacked sufficient minimum contacts with this state to be haled
into court within this forum.
Evaluation of Reasonableness
[25] Having determined that the Michigan Defendants lacked
sufficient minimum contacts with this forum, we need not fur-
ther determine whether it is fair and reasonable to exercise
personal jurisdiction over them. See Baker-Heser v. State, 309
Neb. 979, 963 N.W.2d 59 (2021) (appellate court is not obli-
gated to engage in analysis which is not needed to adjudicate
case and controversy before it).
CONCLUSION
For the reasons stated above, we affirm the district court’s
dismissal for lack of personal jurisdiction.
Affirmed.