Susan Johnson v. Elizabeth Arden

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-2601
___________
Susan Johnson; Robert Johnson; *
Cozy Kittens Cattery LLC, *
*
Appellants, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Elizabeth Arden, dba *
ComplaintsBoard.com; Michelle *
Reitenger; ComplaintsBoard.com, *
InMotion Hosting Inc.; Melanie *
Lowry; Kathleen Heineman, *
*
Appellees. *
___________
Submitted: February 10, 2010
Filed: August 4, 2010 (Corrected 8/11/10)
___________
Before RILEY, Chief Judge,1 SMITH and SHEPHERD, Circuit Judges.
___________
SMITH, Circuit Judge.
Susan and Robert Johnson filed a state civil suit making multiple claims against
several defendants as a result of allegedly defamatory statements posted on an internet
discussion board. The defendants removed the case to federal court. The original
1
The Honorable William Jay Riley became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on April 1, 2010.
complaint included six defendants; however, the Johnsons located and served only
InMotion Hosting, Inc. ("InMotion"), Melanie Lowry, and Kathleen Heineman.
The district court2 dismissed the claims against InMotion with prejudice,
finding that the Communications Decency Act (CDA) of 1996, 47 U.S.C. § 230(c)(1)
and (e)(3) protects InMotion. The court dismissed the claims against Lowry and
Heineman without prejudice, finding that Lowry and Heineman had insufficient
contacts with the State of Missouri to be subjected to personal jurisdiction in Missouri.
Finally, the district court set aside a state court default judgment against Lowry under
Federal Rule of Civil Procedure 60(b). On appeal, the Johnsons argue that the district
court erred in dismissing the claims against InMotion, Heineman, and Lowry and
erred in setting aside the default judgment against Lowry. For the reasons stated
below, we disagree and affirm.
I. Background
The Johnsons reside in Unionville, Missouri, where they own and operate the
exotic cat breeding business known as the Cozy Kitten Cattery. The Cozy Kitten
Cattery is a Missouri limited liability company formed in 2007. Its principal office and
place of business is located in Missouri, and the Johnsons are its sole members.
Around December 2004, the Johnsons obtained a registered federal trademark and
service mark for "Cozy Kitten Cattery." The Johnsons operate their cat breeding
business under that trademark and licensed the use of that trademark and service mark
to Cozy Kitten Cattery, LLC. The Johnsons advertise their business on the internet and
have a website with the web address www.CozyKittens.com.
Someone posted several allegedly defamatory statements about the Cozy Kitten
Cattery on the interactive website www.ComplaintsBoard.com. In response, the
2
The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
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Johnsons and Cozy Kittens Cattery filed suit against Elizabeth Arden d/b/a
www.ComplaintsBoard.com, Michelle Reitenger, www.ComplaintsBoard.com,
InMotion, Lowry, and Heineman in Putnam County, Missouri. Counts I, II and III
allege that all six defendants conspired to use www.ComplaintsBoard.com to post
false statements about the Johnsons, including statements that the Johnsons kill cats,
the Johnsons "rip off" cat breeders, the Johnsons steal kittens, the Johnsons' cats and
kittens are infected, and the Johnsons are con artists. The Johnsons assert that they
requested all defendants to remove the statements but that the statements were not
removed for more than 48 hours. The Johnsons assert that they suffered lost sales of
kittens and cats, lost revenue and lost goodwill and will continue to suffer damages
because of the statements posted on the interactive website.
The Johnsons assert that InMotion, Lowry, and Heineman were all served with
the Summons and Petition/Complaint, although all three dispute service. The Johnsons
were unable to locate or serve defendants Elizabeth Arden d/b/a
www.ComplaintsBoard.com, Michelle Reitenger or www.ComplaintsBoard.com.
Heineman, Lowry, and InMotion moved in district court to dismiss the action
based on lack of personal jurisdiction and insufficient service of process. Heineman
and InMotion also asserted improper venue as an additional ground for dismissal.
A. Kathleen Heineman
Heineman is a resident of the State of Colorado and has been since 1981.
Heineman is a cat breeder and also works as an accountant. In both capacities, she
works out of her home in Colorado. She maintains no offices in Missouri, owns no
property in Missouri and does not pay taxes in Missouri. She also alleges that she does
not own any domain name registrations and does not own or operate any website.
However, the website, www.BoutiqueKittens.com, and the related cat breeding and
selling business are licensed by the State of Colorado to Heineman, and thus for the
purpose of this appeal, we will assume that Heineman owns the website in question.
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The Johnsons assert that Heineman sells cats and kittens throughout the United
States, including the State of Missouri, while advertising on the internet using the web
address www.BoutiqueKittens.com. The Johnsons allege that Heineman advertises
and sells cats and kittens under the name "Cozy Kittens and Cuddly Cats."
Heineman had a limited business relationship with the Johnsons, which ended
in March 2006. The Johnsons never employed Heineman or paid her a salary. She
provided administrative assistance to the Johnsons from her home office in Colorado,
including proofreading services and other miscellaneous work on an intermittent
basis, such as helping them to acquire cats.
Between 2002 and 2006, the Johnsons contend that Heineman purchased about
16 cats for them from breeders throughout the United States. Heineman did not profit
from the purchase of these cats. Some of these cats were shipped to Heineman in
Colorado and then eventually shipped to Susan Johnson in Missouri; other cats were
picked up from the sellers directly by the Johnsons or their relatives. In 2002,
Heineman twice delivered cats to the Johnsons in Missouri. During the course of their
relationship, the Johnsons contend that they shipped seven cats to Heineman and
charged her only for their out-of-pocket expenses.
In the course of their relationship, Heineman also purchased advertising space
from the Johnsons on www.CozyKittens.com for a fee of $100 per kitten advertised.
The Johnsons' website then listed Heineman's email address as the contact email for
persons interested in those cats. These advertisements were not targeted to Missouri
residents, and Heineman did not place any cats or kittens or do any other business in
Missouri. Heineman advertised approximately 50 cats in this manner. Heineman
asserts that she has not posted or authorized anyone else to post anything about the
Johnsons on www.ComplaintsBoard.com or on any other website.
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B. InMotion Hosting, Inc.
InMotion is a California corporation and maintains its principal place of
business there. InMotion, as an internet service provider (ISP), only hosted the
www.ComplaintsBoard.com website. InMotion does not operate
www.ComplaintsBoard.com or create any of its content. InMotion does not monitor
or control the content of its customer's websites, including
www.ComplaintsBoard.com.
The website www.ComplaintsBoard.com is published worldwide on the
internet. The website is interactive, permitting and encouraging individuals to post
complaints about businesses and business owners. Individuals seeking to post
complaints on the website are required to register with the website and provide
identifying information, such as their name and email address.
C. Melanie Lowry
Lowry resides in California and does not own any property in Missouri, does
not have any bank accounts or telephone listings in Missouri, has never paid taxes in
Missouri, and has never transacted business in Missouri. Lowry asserts that she has
never done business with the Johnsons, does not know them, and has only spoken to
Susan Johnson one time on the telephone—a call initiated by Susan Johnson.
The Johnsons assert that Lowry's postings on www.ComplaintsBoard.com
included statements that Susan and Robert Johnson had sold a breeder cat without
providing the papers, offered a refund but refused to pay it, stolen money from their
customers, and fed their cats Tylenol, causing them to suffer horrible deaths and pre-
death injuries.
The record contains one alleged posting by Lowry on
www.ComplaintsBoard.com. That alleged posting does not mention Missouri, and
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there is no other evidence in the record indicating that the focal point of this particular
posting, or any of Lowry's other postings, was Missouri.
The Johnsons filed a state court complaint against Lowry, who they assert was
properly served on July 17, 2008. Lowry did not respond or file a pleading. A
Missouri default judgment was filed against Lowry on September 22, 2008. Lowry
filed a motion to set aside the judgment on November 12, 2008.
D. Procedural History
The defendants removed the case to federal court based on diversity of
citizenship. Heineman filed a motion to dismiss contending that she was not properly
served and that the district court had improper venue and lacked personal jurisdiction
under Federal Rule of Civil Procedure 12(b)(2). The district court granted Heineman's
motion for lack of personal jurisdiction. The Johnsons then filed a motion for an order
of default against InMotion, which had not yet filed any pleadings in the district court.
The district court denied the motion.
InMotion then filed its motion to dismiss under Rule 12(b), contending that it
was not properly served, the district court did not have venue, the complaint failed to
state a claim for relief, it had insufficient contacts with Missouri to be sued there, and
Missouri was an inconvenient forum. InMotion did not raise the CDA as a defense.
The district court raised the CDA sua sponte in its order granting InMotion's motion
to dismiss.
Finally, Lowry, pro se, filed a two-page letter/motion moving to dismiss the
complaint against her, claiming that she was not properly served and that the district
court lacked personal jurisdiction because she had insufficient contacts with the State
of Missouri. In the same motion Lowry moved to set aside the default judgment on
liability pending against her.
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The district court entered an order dismissing the claims against InMotion with
prejudice and dismissing the claims against Lowry and Heineman without prejudice.
The district court found that Lowry and Heineman had insufficient contacts with the
State of Missouri to be subjected to personal jurisdiction there and that the CDA
barred claims against InMotion. The district court also set aside the state court default
judgment against Lowry under Federal Rule of Civil Procedure 60(b) but made no
specific finding in support of that ruling.
II. Discussion
On appeal, the Johnsons argue that the district court erred in (1) dismissing the
claims against InMotion, after finding that InMotion was immune from suit under the
CDA; (2) dismissing the claims against Heineman for lack of personal jurisdiction;
(3) dismissing the claims against Lowry for lack of personal jurisdiction; and (4)
abused its discretion in setting aside the default judgment against Lowry.
A. Communications Decency Act
The Johnsons first argue that the district court erroneously dismissed their
claims after concluding InMotion is immune under the CDA. The Johnsons contend
that 47 U.S.C. § 230(c)(1) and (e)(3) merely provide that a provider of internet
services shall not be treated as the publisher or speaker of information on the internet
provided by another party but does not immunize a provider from suit. The Johnsons
assert that Missouri law provides for joint liability where a wrong is done by concert
of action and common intent and purpose. According to the Johnsons, the CDA would
only bar actions against website operators deemed to be the "publisher or speaker" of
defamatory material.
InMotion responds that the district court correctly found that InMotion was
immune from suit under the CDA. Additionally, InMotion asserts that it maintained
no control and had no influence over the content that the Johnsons alleged was posted
on www.ComplaintsBoard.com by unrelated third parties. Because of this, InMotion
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maintains, it could not have "acted in concert" or "intentionally inflicted emotional
distress" in a manner that caused any damage to the Johnsons.
This case presents an issue of first impression for this court, as we have not
previously interpreted § 230(c). "Statutory interpretation is a question of law that we
review de novo." Minn. Supply Co. v. Raymond Corp., 472 F.3d 524, 537 (8th Cir.
2006). The CDA states that "[n]o provider or user of an interactive computer service
shall be treated as the publisher or speaker of any information provided by another
information content provider," 47 U.S.C. § 230(c)(1), and expressly preempts any
state law to the contrary, id. § 230(e)(3).3 The CDA defines an "information content
provider" as "any person or entity that is responsible, in whole or in part, for the
creation or development of information provided through the internet or any other
interactive computer service." Id. at § 230(f)(3).
Read together, these provisions bar plaintiffs from holding ISPs legally
responsible for information that third parties created and developed. See Fair Hous.
Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1162–64
(9th Cir. 2008) (holding that CDA immunity did not apply to website that was
designed to force subscribers to divulge protected characteristics, but that CDA
immunity did apply to the "Additional Comments" section of the website where the
information was created by third parties and not required by the website ISP).
"Congress thus established a general rule that providers of interactive computer
services are liable only for speech that is properly attributable to them." Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 254 (4th Cir. 2009).
3
Section 230(e)(3) states:
(3) State law—Nothing in this section shall be construed to prevent any State
from enforcing any State law that is consistent with this section. No cause of
action may be brought and no liability may be imposed under any State or local
law that is inconsistent with this section.
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"The majority of federal circuits have interpreted the CDA to establish broad
'federal immunity to any cause of action that would make service providers liable for
information originating with a third-party user of the service.'" Almeida v.
Amazon.com, Inc., 456 F.3d 1316, 1321 (11th Cir. 2006) (quoting Zeran v. Am.
Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997)). The district court, following majority
circuit precedent, held that § 230(c)(1) blocks civil liability when web hosts and other
ISPs refrain from filtering or censoring the information that third parties created on
their sites. Green v. Am. Online, 318 F.3d 465, 471 (3d Cir. 2003) (holding that under
the CDA the defendant ISP is not liable for failing to monitor, screen, or delete
allegedly defamatory content from its site).
It is undisputed that InMotion did not originate the material that the Johnsons
deem damaging. InMotion is not a "publisher or speaker" as § 230(c)(1) uses those
terms, therefore, the district court held that InMotion cannot be liable under any
state-law theory to the persons harmed by the allegedly defamatory material. Five
circuit courts agree. See Universal Commc'n Sys., Inc. v. Lycos, Inc., 478 F.3d 413,
419 (1st Cir. 2007) (affirming dismissal of a claim brought by a public-traded
company against an internet message board operator for allegedly false and
defamatory postings by pseudonymous posters); Batzel v. Smith, 333 F.3d 1018
1032–33 (9th Cir. 2003) (holding that even if operator of internet services could have
reasonably concluded that the information was sent for internet publication, he was
immunized from liability for the defamatory speech as a "provider or user of
interactive computer services" under the CDA); Green v. Am. Online, 318 F.3d at 471;
Ben Ezra, Weinstein & Co. v. Am. Online, Inc., 206 F.3d 980, 986 (10th Cir. 2000)
(finding that defendant ISP was immune to the defamation claim under the CDA when
it made its own editorial decisions with respect to third-party information published
on its website); Zeran, 129 F.3d at 332–34 (holding that the CDA barred claims
against defendant ISP that allegedly delayed in removing defamatory messages posted
by unidentified third party, refused to post retractions of those messages, and failed
to screen for similar postings thereafter).
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District courts in this circuit have reached the same conclusion. See, e.g.,
PatentWizard, Inc. v. Kinko's, Inc., 163 F. Supp. 2d 1069, 1072 (D.S.D. 2001)
(holding that "§ 230 of the Communication[s] Decency Act errs on the side of robust
communication and prevents the plaintiffs from moving forward with their claims"
that a company that allowed users to access the internet via its computers could be
held liable for the actions of one of those users).
The Johnsons cite Chicago Lawyers' Committee for Civil Rights Under Law,
Inc. v. Craigslist, Inc., 519 F.3d 666 (7th Cir. 2008), for support. Craigslist held that
"§ 230(c) as a whole cannot be understood as a general prohibition of civil liability for
web-site operators and other online content hosts. . . ." Id. at 669. However, while the
Seventh Circuit construes § 230(c)(1) to permit liability for ISPs, it limited that
liability to ISPs that intentionally designed their systems to facilitate illegal acts, such
as stealing music. Id. at 670 (citing Metro-Goldwyn-Mayer Studios Inc. v. Grokster,
Ltd., 545 U.S. 913 (2005); In re Aimster Copyright Litig., 334 F.3d 643 (7th Cir.
2003)). Specifically, Craigslist held that an ISP could not be held liable for allowing
third parties to place ads in violation of the Fair Housing Act on its website if the ISP
did not induce the third party to place discriminatory ads. Id. at 671–72.
The record contains no evidence that InMotion designed its website to be a
portal for defamatory material or do anything to induce defamatory postings. We
conclude that the CDA provides ISPs like InMotion with federal immunity against
state tort defamation actions that would make service providers liable for information
originating with third-party users of the service such as the other defendants in this
case.
Therefore we decline the Johnsons' invitation to construe § 230(c)(1) as
permitting liability against InMotion for material originating with a third party. See
Zeran, 129 F.3d at 330 (stating that "§ 230 precludes courts from entertaining claims
that would place a computer service provider in a publisher's role. Thus, lawsuits
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seeking to hold a service provider liable for its exercise of a publisher's traditional
editorial functions—such as deciding whether to publish, withdraw, postpone or alter
content—are barred").
Because InMotion was merely an ISP host and not an information content
provider, the Johnsons' claims against InMotion fail as a matter of law under
§ 230(c)(1), and the district court properly dismissed the claims.
B. Personal Jurisdiction
1. Kathleen Heineman
The Johnsons next argue that the district court erred by dismissing the claims
against Heineman for lack of personal jurisdiction. The Johnsons maintain that
Heineman purposefully directed internet activities at Missouri citizens. The Johnsons
also assert that the record establishes personal jurisdiction under the Missouri long
arm statute.
Heineman responds that the Johnsons cannot challenge the district court's ruling
because they waived any opposition by not filing a timely objection. In the alternative,
Heineman argues that the district court correctly ruled it lacked personal jurisdiction
over her. According to Heineman, the record does not reflect that she had systematic
or continuous contacts with Missouri or, even if she did, that they were aimed or
purposefully directed at Missouri.
First, as a threshold question, we address whether the Johnsons may challenge
the district court's decision to grant Heineman's motion. Heineman contends that the
Johnsons have waived any challenge to the district court's order dismissing her from
the lawsuit because they failed to file a timely opposition to the motion to dismiss at
the district court.
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Heineman filed a motion to dismiss all counts against her, and the Johnsons did
not file a timely response. Instead, two weeks after their deadline passed, the Johnsons
filed a motion for additional time. The Johnsons then filed a response to Heineman's
motion before the district court ruled on the Johnsons' motion for additional time. An
affidavit from Susan Johnson was attached with the response. The district court denied
the Johnsons' motion for additional time and struck the response from the record. The
district court subsequently granted Heineman's motion to dismiss, finding that the
Johnsons did not respond in a timely manner, but nevertheless, "out of caution," the
district court stated that it considered Susan Johnson's affidavit before ruling on
Heineman's motion to dismiss.
"It is a well-established rule that issues not raised in the trial court cannot be
considered by this court as a basis for reversal." Edwards v. Hurtel, 724 F.2d 689, 690
(8th Cir. 1984) (per curiam). "The primary purpose of the rule is promptly to inform
the district judge of possible errors, and thus give the judge an opportunity to
reconsider the ruling and make desired changes." Id. This rule is followed "in all but
exceptional cases where the obvious result would be a plain miscarriage of justice or
inconsistent with substantial justice." Kelley v. Crunk, 713 F.2d 426, 427 (8th Cir.
1983) (per curiam).
In Shanklin v. Fitzgerald, a plaintiff filed certain exhibits without properly
authenticating the exhibits. 397 F.3d 596, 601 (8th Cir. 2005). The defendant made
a motion to strike the exhibits, and the plaintiff did not oppose. Id. The district court
granted the motion to strike, and on appeal the plaintiff contended that the district
court erred in striking the motion. Id. We held that "[a]bsent exceptional
circumstances, we cannot consider issues not raised in the district court." Id.
The Johnsons distinguish Shanklin by pointing out that the district court
considered the affidavit from Susan Johnson in making a ruling on the motion to
dismiss, while the Shanklin court did not review any documents. Also, the Johnsons
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did attempt to oppose the motion to dismiss, although in an untimely fashion. In
Shanklin the plaintiff did not even attempt to file an out-of-time opposition. We find
merit in this argument, because the district court acknowledged that it considered
some opposition to the motion—Susan Johnson's affidavit—which the Johnsons
clearly submitted for the purpose of opposing the motion to dismiss. Therefore, the
trial court had an opportunity to "reconsider" the issue of whether to dismiss knowing
that the Johnsons opposed dismissal. In fact, in the district court's order, it specifically
stated that "out of caution, and because the Court must construe the jurisdictional facts
in the light most favorable to the Johnsons, the Court has considered the affidavit of
Sue Johnson . . . . " Therefore, we hold that the Johnsons sufficiently preserved their
argument for appeal.
Grants of motions to dismiss for lack of personal jurisdiction under Federal
Rule of Civil Procedure 12(b)(2) are reviewed de novo. First Nat'l Bank of Lewisville,
Ark. v. First Nat'l Bank of Clinton, Ky., 258 F.3d 727, 729 (8th Cir. 2001). "If the
District Court does not hold a hearing and instead relies on pleadings and affidavits,
then we must look at the facts in the light most favorable to the nonmoving party and
resolve all factual conflicts in favor of that party." Epps v. Stewart Info. Serv. Corp.,
327 F.3d 642, 646–47 (8th Cir. 2003).
In Missouri, to obtain personal jurisdiction over a non-resident
defendant, "the plaintiff must make a prima facie showing that (1) the
cause of action arose out of an activity covered by Missouri's long-arm
statute, . . . and (2) the defendant had sufficient minimum contacts with
Missouri to satisfy the requirements of due process."
Berry v. Berry (In re Marriage of Berry), 155 S.W.3d 838, 840 (Mo. Ct. App. 2005)
(quoting Wray v. Wray, 73 S.W.3d 646, 649 (Mo. Ct. App. 2002)). "The evidentiary
showing required at the prima facie stage is minimal. . . . " Willnerd v. First Nat'l
Neb., Inc., 558 F.3d 770, 778 (8th Cir. 2009) (internal quotations and citation
omitted).
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Missouri's long-arm statute, Mo. Rev. Stat. § 506.500, confers jurisdiction to
the extent allowed by the Due Process Clause.4 State ex rel Deere and Co. v. Pinnell,
454 S.W.2d 889, 892 (Mo. 1970). Under this standard, "[p]ersonal jurisdiction exists
only if the contacts between the defendant and the forum state are sufficient to
establish that the defendant has purposefully availed himself of the benefits and
protections of the forum state." Johnson v. Woodcock, 444 F.3d 953, 955 (8th Cir.
2006). In Aftanase v. Economy Baler Co., we set forth five factors courts must
consider when determining whether there are sufficient minimum contacts to confer
jurisdiction. 343 F.2d 187, 197 (8th Cir. 1965). These factors include: (1) the nature
and quality of the contacts with the forum state; (2) the quantity of the contacts; (3)
the relationship of the cause of action to the contacts; (4) the interest of Missouri in
providing a forum for its residents; and (5) the convenience or inconvenience to the
parties. Id. The first three factors are primary factors, and the remaining two factors
are secondary factors. Id. The third factor distinguishes whether the jurisdiction is
specific or general. Digi-Tel Holdings, Inc. v. Proteq Telecomm., Ltd., 89 F.3d 519,
523 n.4 (8th Cir. 1996). We must look at all of the factors in the aggregate and
examine the totality of the circumstances in making a personal-jurisdiction
determination. Northrup King Co. v. Compania Productora Semillas Algodoneras,
S.A., 51 F.3d 1383, 1388 (8th Cir. 1995).
4
The statutes states, in relevant part:
1. Any person . . . whether or not a citizen or resident of this state
. . . submits . . . to the jurisdiction of the courts of this state as to any
cause of action arising from the doing of any such acts:
(1) The transaction of any business within this state;
(2) The making of any contract within this state;
(3) The commission of a tortious act within this state. . . .
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The minimum contacts necessary for due process may be the basis for either
"general" or "specific" jurisdiction. Davis v. Baylor Univ., 976 S.W.2d 5, 12 (Mo. Ct.
App. 1998). A court obtains general jurisdiction "against a defendant who has
'continuous and systematic' contacts with the forum state, even if the injuries at issue
in the lawsuit did not arise out of the defendant's activities directed at the forum."
Dever v. Hentzen Coatings, Inc., 380 F.3d 1070, 1073 (8th Cir. 2004) (quoting
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415–16 (1984)).
Specific jurisdiction over a defendant is exercised when a state asserts personal
jurisdiction over a nonresident defendant that "'has purposefully directed [its]
activities at [Missouri] residents'" in a suit that "'arises out of' or 'relates to' these
activities." Lakin v. Prudential Sec., Inc., 348 F.3d 704, 707 (8th Cir. 2003) (quoting
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)).
a. General Jurisdiction
Heineman's contacts with the State of Missouri—which must be found to be
"continuous and systematic" before general jurisdiction is conferred—may be
summarized as follows: She purchased cats in Missouri for delivery to the Johnsons;
personally delivered cats to the Johnsons in Missouri on two separate occasions;
conducted her cat breeding and sale business with the Johnsons, using the Johnsons'
website—operated from the Johnsons' location in Unionville, Missouri—for a period
of about four years, which ended two years before this lawsuit was initiated; and
engaged in numerous telephone conversations and email exchanges with the Johnsons
during that four-year period.
Heineman is a citizen and resident of Colorado who sells cats and kittens
throughout the United States, and advertises her business on the website
www.BoutiqueKittens.com. The Johnsons and Heineman first made contact when
Heineman purchased a cat from the Johnsons in late 2001 or early 2002. Around April
2002, they began a business relationship that lasted until March 2006. During this
time, Heineman provided the Johnsons administrative assistance with their website,
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www.CozyKittens.com. She also purchased advertising space for cats she sold from
Colorado on the Johnsons' website, advertising approximately 50 cats thereon.
Between 2002 and 2006, Heineman purchased about 16 cats for the Johnsons from
breeders throughout the United States. These cats were generally shipped to Colorado,
then eventually shipped to Missouri. Heineman never worked as an employee of the
Johnsons.
Applying the Aftanase factors, see Lakin, 348 F.3d at 711, we do not find
sufficient contacts between Heineman and Missouri to support general jurisdiction.
Heineman did business almost exclusively from her Colorado home, except for
infrequent trips to Missouri to deliver cats. See Johnson, 444 F.3d at 956–57 (holding
that evidence that nonresident party collaborated with a resident and had a publishing
relationship with another did not establish general jurisdiction); see also Helicopteros,
466 U.S. at 418 ("[W]e hold that mere purchases, even if occurring at regular
intervals, are not enough to warrant a State's assertion of in personam jurisdiction over
a nonresident [party] in a cause of action not related to those purchase transactions.").
Heineman's contact with Missouri was neither continuous nor systematic.
With the Johnsons unable to establish that Heineman had continuous and
systematic contacts with Missouri, we turn to the question of specific jurisdiction.
b. Specific Jurisdiction
Specific jurisdiction is proper "only if the injury giving rise to the lawsuit
occurred within or had some connection to the forum state, meaning that the defendant
purposely directed its activities at the forum state and the claim arose out of or relates
to those activities." Steinbuch v. Cutler, 518 F.3d 580, 586 (8th Cir. 2008) (citing
Burger King Corp., 471 U.S. at 472).
The Johnsons' primary support for specific jurisdiction are two sets of actions
that Heineman allegedly undertook—posting defamatory statements on
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www.ComplaintsBoard.com and using the trademark "Cozy Kittens" on the website
www.BoutiqueKittens.com. The trademark claim will be discussed under a Lanham
Act analysis. See infra. The question for both sets of actions is whether Heineman
"purposefully directed" her internet activities at the State of Missouri.
When considering the sufficiency of internet contacts under a specific
jurisdiction analysis, we have found the Zippo test instructive. Lakin, 348 F.3d at
710–11. In Zippo Mfg. Co. v. Zippo Dot Com, Inc., the court examined the issue of
whether a website could provide sufficient contacts for specific personal jurisdiction.
952 F. Supp. 1119, 1124 (W.D. Pa. 1997). The court created a "sliding scale" to
measure the likelihood of personal jurisdiction. Id. The scale runs from active contract
formation and repeated transmission of computer files to mere posting of information
on a website. Id. The www.ComplaintBoards.com site lands on the "mere posting" end
of the scale. Although InMotion represents www.ComplaintsBoard.com as an
"interactive" website, users may actually only post information. There is no interaction
between users and a host computer; the site merely makes information available to
other people. The website's accessibility in Missouri alone is insufficient to confer
personal jurisdiction.
There are other ways the Johnsons can obtain specific jurisdiction, including
employing the Calder effects test. See Calder v. Jones, 465 U.S. 783 (1984). "To
sustain [their] argument, [the Johnsons] would have to show that [Heineman] knew
that 'the brunt of the injury would be felt by [them] in the State in which [they] live
[ ] and work[ ]' and intentionally targeted the forum state." Steinbuch, 518 F.3d at 586
(quoting Calder, 465 U.S. at 789–90).
The "effects" test, therefore, provides that
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
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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].
Lindgren v. GDT, LLC, 312 F. Supp. 2d 1125, 1132 (S.D. Iowa 2004) (internal
quotations and citation omitted). We have stated that this test "allows the assertion of
personal jurisdiction over non-resident defendants whose acts are performed for the
very purpose of having their consequences felt in the forum state." Dakota Indus., Inc.
v. Dakota Sportswear, Inc., 946 F.2d 1384, 1390–91 (8th Cir. 1991) (internal
quotations and citation omitted). Heineman's alleged acts were not so performed.
The Johnsons allege that Heineman stated on www.ComplaintBoards.com that
"Sue Johnson and Cozy Kittens operated 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." Although we accept this allegation
as true,5 alone, it fails to show that Heineman uniquely or expressly aimed her
statements at Missouri. The statements were aimed at the Johnsons; the inclusion of
"Missouri" in the posting was incidental and not "performed for the very purpose of
having their consequences" felt in Missouri. There is no evidence that the
www.ComplaintsBoard.com website specifically targets Missouri, or that the content
of Heineman's alleged postings specifically targeted Missouri.
Additionally, even if the effect of Heineman's alleged statement was felt in
Missouri, we have used the Calder test merely as an additional factor to consider
when evaluating a defendant's relevant contacts with the forum state. In Dakota, we
5
There is no copy of any post from Heineman, defamatory or otherwise, in the
record, although at this summary judgment stage we construe the evidence in the light
most favorable to the Johnsons. Semple v. Federal Exp. Corp., 566 F.3d 788, 791 (8th
Cir. 2009).
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declined to grant personal jurisdiction solely on the basis of forum state effects from
an intentional tort. Id. at 1391 ("In relying on Calder, we do not abandon the five-part
[Aftanase] test . . . . We simply note that Calder requires the consideration of
additional factors when an intentional tort is alleged."). We therefore construe the
Calder effects test narrowly, and hold that, absent additional contacts, mere effects in
the forum state are insufficient to confer personal jurisdiction. See Hicklin Eng'g, Inc.
v. Aidco, Inc., 959 F.2d 738, 739 (8th Cir. 1992) (per curiam). As explained, supra,
there are no additional contacts between Heineman and Missouri to justify conferring
personal jurisdiction.
Posting on the internet from Colorado an allegedly defamatory statement
including the name "Missouri" in its factual assertion does not create the type of
substantial connection between Heineman and Missouri necessary to confer specific
personal jurisdiction.
c. Lanham Act Claims
The Johnsons also challenge the district court's denial of jurisdiction for the
Johnsons' Lanham Act claim. The Johnsons allege that Heineman violated the Lanham
Act, 15 U.S.C. § 1051 et seq.,6 by using the words "Cozy Kittens and Cuddly Cats"
to advertise her cat breeding business on www.BoutiqueKittens.com. As noted,
Heineman denies ownership of this website, but for purposes of our review of a
dismissed count, we assume that Heineman owns the site in question.
Here, we do not decide the viability of the Johnsons' Lanham Act claim on the
merits, only whether the district court had jurisdiction to decide the claim. The
6
The Lanham Act governs the use of federal trademarks. Davis v. Walt Disney
Co., 430 F.3d 901, 903 (8th Cir. 2005) ("The Lanham Act prohibits the use of a mark
in connection with goods or services in a manner that is likely to cause confusion as
to the source or sponsorship of the goods or services.")
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Missouri long-arm statute confers jurisdiction to Missouri courts for torts committed
within Missouri. See Mo. Rev. Stat. § 506.500.
Infringing upon a trademark, as a tort, may be grounds for personal jurisdiction
under Missouri's long-arm statute. Uncle Sam's Safari Outfitters, Inc. v. Uncle Sam's
Army Navy Outfitters-Manhattan, Inc., 96 F. Supp. 2d 919, 921 (E.D. Mo. 2000).
However, the same "minimum contacts" analysis applies to determine if the allegedly
tortious act was committed within Missouri. Id. Heineman, as discussed, does not
have sufficient contacts to grant general personal jurisdiction. The Johnsons argue that
Heineman sells cats and kittens throughout the United States, including in the State
of Missouri via advertising on www.BoutiqueKittens.com, thus creating specific
personal jurisdiction. However, under Zippo, whether specific personal jurisdiction
could be conferred on the basis of an interactive website depends not just on the nature
of the website but also on evidence that individuals in the forum state accessed the
website in doing business with the defendant. Zippo, 952 F. Supp. at 1125–26.
Although www.BoutiqueKittens.com may be characterized as interactive, there is no
evidence in the record that Heineman engaged in any transaction or exchange of
information with a Missouri resident via www.BoutiqueKittens.com, or that a
Missouri resident ever accessed the website. We decline to confer personal
jurisdiction based on only the possibility that a Missouri resident had contact with
Heineman through www.BoutiqueKittens.com.
Similarly, the Johnsons have failed to prove that www.BoutiqueKittens.com
is uniquely or expressly aimed at Missouri; thus Calder provides no support for their
Lanham Act claim. For these reasons, as well as the reasons stated supra, Part II.B.1,
we hold that Heineman does not have sufficient minimum contacts with Missouri and
affirm the district court's decision to dismiss the Lanham Act claims against Heineman
for lack of personal jurisdiction.
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Because we find there was no personal jurisdiction, we do not reach
Heineman's other issues related to service and venue.
2. Melanie Lowry
a. Personal Jurisdiction
The Johnsons also contend that the district court erred by dismissing their
claims against Melanie Lowry for lack of personal jurisdiction because the web
activities of Lowry were purposefully directed at the citizens of the State of Missouri.
We address this issue with an analysis similar to the one completed above for
Heineman.
The only evidence in the record relating to Lowry is an affidavit she attached
to her motion to dismiss. In it, Lowry claimed that she has never been to Missouri,
does not own any property in Missouri, does not have any bank accounts or telephone
listings in Missouri, has never paid taxes in Missouri nor insured a risk in Missouri,
and has never knowingly, regularly or continuously transacted business in the State
of Missouri. Her affidavit also states that she has never done business with the
Johnsons, does not know them, and has only spoken to Susan Johnson one time on the
telephone—a call that Johnson initiated. The evidence supporting systematic and
continuous contacts between Lowry and Missouri is thus even weaker than that for
Heineman. Again applying the Aftanase factors we hold that the district court did not
have general jurisdiction over Lowry.
The court also did not have specific jurisdiction over Lowry. Lowry's alleged
activities related to www.ComplaintsBoard.com are similar to Heineman's, except that
Lowry did not include any statement related to or mentioning the State of Missouri.
No statement of any kind by Lowry was purposefully directed at Missouri. We affirm
the district court's decision to dismiss the Johnsons' claims against Lowry for lack of
personal jurisdiction.
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b. Default Judgment
Finally, the Johnsons argue that the district court abused its discretion or erred
by vacating the Missouri state court default judgment against Lowry under Federal
Rule of Civil Procedure 60(b). The Johnsons specifically challenge the district court's
lack of a showing of good cause.
The district court, "for good cause shown," "set aside" the default judgment
against Lowry as part of its order granting Lowry's motion to dismiss for lack of
personal jurisdiction. Thus, while no findings were made or specific reasons given for
setting aside the judgment, it is reasonable to surmise that the district court set aside
the default judgment as void because the district court found that Missouri courts
lacked personal jurisdiction over Lowry.
The default judgment was filed on September 22, 2008, and Lowry filed a
motion to set aside the judgment on November 12, 2008. Lowry did not reference a
rule of civil procedure in her motion, but Lowry is a pro se litigant and therefore we
construe her pleadings broadly. See Smith v. Hundley, 190 F.3d 852, 855 n.7 (8th Cir.
1999) (holding that pro se pleadings are afforded a liberal construction). Because
Lowry specifically stated that "this is my motion to set aside the default judgment"
and in the same motion argued that the court did not have personal jurisdiction, we
will view her motion as a Rule 60(b)(4) motion. See Baldwin v. Credit Based Asset
Servicing and Securitization, 516 F.3d 734, 737 (8th Cir. 2008) (characterizing a pro
se motion that did not specify a particular rule of civil procedure as a Rule 60(b)(4)
motion because the motion stated that the court did not have personal jurisdiction).
"The court may set aside an entry of default for good cause, and it may set
aside a default judgment under Rule 60(b)." Fed. R. Civ. P. 55(c). Rule 60(b)(4)
provides in relevant part that "the court may relieve a party . . . from a final judgment
[if] . . . the judgment is void[.]" Fed. R. Civ. P. 60(b)(4). "A judgment is void if the
rendering court lacked jurisdiction or acted in a manner inconsistent with due
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process." Baldwin, 516 F.3d at 737 (internal quotations and citation omitted).
"Although we have sometimes said that relief from a judgment under Rule 60(b) is an
extraordinary remedy left to the discretion of the district court, relief from a judgment
that is void under Rule 60(b)(4) is not discretionary." United States v. Three Hundred
Fifty-Three Thousand Six Hundred Dollars, in United States Currency, 463 F.3d 812,
813 (8th Cir. 2006). "Thus, while Rule 60(b) dispositions are generally reviewed for
an abuse of discretion . . . an order [granting] relief pursuant to Rule 60(b)(4) is
reviewed de novo." Id. (internal citation omitted).
This is not a case where Lowry lost on the merits, failed to appeal, and
belatedly attempted to avoid the judgment with a Rule 60(b)(4) motion. Cf. Kocher
v. Dow Chem. Co., 132 F.3d 1225, 1229 (8th Cir. 1997) ("A party may not use a Rule
60(b)(4) motion as a substitute for a timely appeal. In other words, if a party fails to
appeal an adverse judgment and then files a Rule 60(b)(4) motion after the time
permitted for an ordinary appeal has expired, the motion will not succeed merely
because the same argument would have succeeded on appeal.") (internal citations
omitted). Rather, Lowry challenged jurisdiction from the inception of this case. The
district court found that Lowry could not be subjected to personal jurisdiction in
Missouri. Although we reviewed that decision on the merits in this opinion, see supra,
Part II.B.2.a, for purposes of review of the district court's decision to set aside the
default judgment, we do not consider the underlying decision; we are confined to
determining only whether the district court erred in granting Lowry's Rule 60(b)(4)
motion. See Three Hundred Fifty-Three Thousand Six Hundred Dollars, in United
States Currency, 463 F.3d at 814. Because the district court did not err in granting
Lowry's Rule 60(b)(4) motion when it found personal jurisdiction lacking we affirm
the court's decision to set aside Lowry's adverse judgment.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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