Shymatta v. Papillon
Filing
18
MEMORANDUM DECISION AND ORDER granting 9 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
DAVID SHYMATTA, dba CELL
JUNKIE;
Plaintiff,
Case No. 4:10-CV-00565-BLW
MEMORANDUM DECISION AND
ORDER
v.
MICHAEL PAPILLON, dba THE CELL
PHONE JUNKIE;
Defendant.
INTRODUCTION
The Court has before it Defendant’s Motion to Dismiss for Lack of Personal
Jurisdiction (Dkt. 9).
FACTUAL AND LEGAL BACKGROUND
Plaintiff David Shymatta has owned the registered trademark “Cell Junkie” since
December 11, 2007. This trademark is classified for “retail store services featuring cell
phone accessories.” Compl., Ex. A, Dkt. 1-1 at 3. Defendant Michael Papillon, a resident
of Arizona, operates a website called “The Cell Phone Junkie.” Compl. at ¶ 2.
Mr. Shymatta, dba Cell Junkie, sells cell phone products and accessories. Cell
Junkie maintains a website, celljunkie.com, and sells products through various online
retailers such as ebay.com. Id. at ¶ 8.
MEMORANDUM DECISION AND ORDER - 1
Mr. Papillon operates a blog, cellphonejunkie.com, which reviews cell phones, cell
phone accessories, and provides podcasts regarding cell phones that may be listened to for
free on the website. Id. at ¶ 11. Mr. Papillon’s website provides users with links to
retailers selling the products being reviewed and discussed, but does not directly sell
products or provide price comparisons. Id; Papillon Aff., Dkt. 9-2 at ¶ 11. The vast
majority of content on Mr. Papillon’s website is available for free to any user. Papillon
Aff., Dkt. 9-2 at ¶ 8. Mr. Papillon has never personally sold any tangible products through
his website. Id. at ¶ 10. Mr. Papillon’s website offers a “premium” podcast for direct
download to electronic devices, such as a personal computer or iPod, for a small fee, the
proceeds of which are dedicated entirely to website maintenance. Id. at ¶¶ 12-13. In
2009, the proceeds from these premium podcasts totaled $3,000. Id. at ¶ 15. Since July
2006, 0.07% of all premium podcast downloads from Mr. Papillon’s website have been
initiated by users in Idaho. Id. at ¶ 18. Mr. Papillon has never purchased any advertising
for his website, in Idaho or any other state. Id. at ¶ 20.
On February 5, 2010, Mr. Shymatta sent Mr. Papillon a cease and desist letter,
demanding cessation of the use of the domain name “thecellphonejunkie.com.” Id. at ¶
13. On February 27, Mr. Papillon applied to register the trademark “The Cell Phone
Junkie” for the purposes of entertainment services. Compl., Ex. F, Dkt. 1-7 at 2. On
March 11, 2010, Mr. Papillon initiated cancellation proceedings regarding Mr.
Shymatta’s registered “Cell Junkie” trademark with the United States Patent &
Trademark Office, alleging abandonment. Compl., Ex. D, Dkt. 1-5 at 1-2.
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Mr. Shymatta filed his pro se complaint in this matter on November 15, 2010,
alleging causes of action for (1) federal trademark infringement under the Lanham Act,
15 U.S.C. § 1114; (2) false advertising, unfair competition, infringement, false
designation of origin, and passing off; (3) direct and contributory common law trademark
infringement; (4) direct and contributory common law unfair competition. Compl., Dkt.
1. On December 21, 2010, Mr. Papillon moved to dismiss the complaint for lack of
personal jurisdiction. Mtn. to Dismiss, Dkt. 9.
LEGAL STANDARD
In order to establish the existence of personal jurisdiction in a diversity case, the
plaintiff must show (1) that a statute of the forum confers personal jurisdiction over the
nonresident defendant, and (2) that the exercise of jurisdiction accords with federal
constitutional principles of due process. Haisten v. Grass Valley Medical Reimbursement
Fund, Ltd., 784 F.2d 1392, 1396 (9th Cir. 1986). The Idaho long-arm statute provides
that a person is subject to personal jurisdiction if, among other things, he transacts
business or commits a tortious act in Idaho and the alleged cause of action arises from
that transaction or act. I.C. § 5-514. The Idaho legislature, in adopting that statute,
intended to exercise all the jurisdiction available to the State of Idaho under the due
process clause of the United States Constitution. Doggett v. Electronics Corp. of Am., 93
Idaho 26, 30 (1969). Thus, the state and federal limits are coextensive. Data Disc, Inc. v.
Systems Technology Associates, Inc., 557 F.2d 1280, 1286 (9th Cir. 1977)
Contacts giving rise to personal jurisdiction in a given forum may be general or
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specific. For general jurisdiction to exist over a nonresident defendant, the defendant
must engage in “continuous and systematic general business contacts,” Helicopteros
Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984) (citing Perkins v.
Benguet Consol. Mining Co., 342 U.S. 437 (1952)), that “approximate physical presence”
in the forum state, Bancroft & Masters, 223 F.3d 1082, 1086 (9th Cir. 2000). This is an
exacting standard because a finding of general jurisdiction permits a defendant to be
haled into court in the forum state to answer for any of its activities anywhere in the
world. Brand v. Menlove Dodge, 796 F.2d 1070, 1073 (9th Cir. 1986) (collecting cases
where general jurisdiction was denied despite defendants’ significant contacts with
forum). A commercially interactive website may satisfy general personal jurisdiction
under the “sliding scale” test. Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 417-19
(9th Cir. 1997) (citing Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119, 1124
(W.D. Pa. 1997)). Zippo described the test as follows:
[T]he likelihood that personal jurisdiction can be constitutionally exercised is
directly proportionate to the nature and quality of commercial activity that an
entity conducts over the Internet. . . . 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 foreign jurisdiction that involve the knowing and
repeated transmission of computer files over the Internet, personal jurisdiction is
proper. At the opposite end . . . a defendant has simply posted information on an
Internet Web site which is accessible to [forum resident] users. . . . The middle
ground is occupied by interactive Web sites where a user can exchange
information with the host computer.
Zippo, 952 F.Supp. at 1124 (citations omitted).
To ascertain whether specific personal jurisdiction exists, this Court employs a
MEMORANDUM DECISION AND ORDER - 4
three-prong test to determine whether a party has sufficient minimum contacts to be
susceptible to specific personal jurisdiction:
(1) The non-resident defendant must purposefully direct his activities or
consummate some transaction with the forum or resident thereof; or perform some
act by which he purposefully avails himself of the privilege of conducting
activities in the forum, thereby invoking the benefits and protections of its laws;
(2) the claim must be one which arises out of or relates to the defendant’s
forum-related activities; and
(3) the exercise of jurisdiction must comport with fair play and substantial justice,
i.e. it must be reasonable.
Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004). The
plaintiff bears the burden on the first two prongs. If the plaintiff establishes both prongs
one and two, the defendant must come forward with a compelling case that the exercise of
jurisdiction would not be reasonable. Boschetto v. Hansing, 539 F.3d 1011, 1016 (9th
Cir. 2008) (internal quotation omitted).
The court may consider evidence presented in affidavits to assist it in its
determination and may order discovery on the jurisdictional issues. Data Disc, Inc. v.
Systems Technology Assoc., Inc., 557 F.2d 1280, 1285 (9th Cir. 1977). However,
[w]hen a district court acts on a defendant’s motion to dismiss without holding an
evidentiary hearing, the plaintiff need make only a prima facie showing of
jurisdictional facts to withstand the motion to dismiss. [ ] That is, the plaintiff need
only demonstrate facts that if true would support jurisdiction over the defendant.
Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995) (citations omitted) (alteration in
original); see also AT & T v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir.
1996) (where trial court rules on jurisdictional issue based on affidavits and discovery
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materials without holding evidentiary hearing, plaintiff need only make prima facie
showing).
ANALYSIS
First, Mr. Papillon argues that his blog is insufficient to support a finding of
general personal jurisdiction in Idaho. Secondly, Mr. Papillon argues that he satisfies
neither of the first two prongs of the specific personal jurisdiction test because he has
never directed activities at this forum, and there are thus no forum-related activities form
which this matter may arise.
A.
General Personal Jurisdiction
Mr. Papillon’s blog is insufficient to meet the exacting standard of general
personal jurisdiction. Mr. Papillon has never had any substantial, continuous, or
systematic contacts with Idaho. He has never advertised, sold any tangible products to
any state, or maintained any relationships with retail vendors. Compare these minimal
contacts with those found sufficient by the Ninth Circuit in Gator.com Corp. v. L.L. Bean,
Inc., 341 F.3d 1072 (9th Cir. 2003). In that case, L.L. Bean, a Maine corporation,
targeted advertising at California, maintained a highly interactive, commercially lucrative
website serving large numbers of California consumers, and maintained business
relationships with numerous California vendors. Id. at 1078. The few district courts to
have considered blogs specifically have found them insufficient to establish general
personal jurisdiction. See Miller v. Kelly, 2010 WL 4684029, *5 (D. Colo. November 12,
2010) (“Accordingly, the Court finds that Defendant’s authorship of a LiveJournal blog is
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an insufficient basis for the exercise of general personal jurisdiction over her.”); Hudson
v. University of Puerto Rico, 2010 WL 1131462, *3 (D. Minn. March 23, 2010) (“[T]he .
. . blog in and of itself is insufficient to establish general jurisdiction over the
University.”).
Mr. Shymatta’s argument that Mr. Papillon maintains a commercially interactive
website available to Idaho users that falls at the extreme end of the Zippo sliding scale is
unavailing. Mr. Papillon does not manufacture, design, stock, sell, or ship any cell phone
related product; when he reviews a cell phone or related product, he provides a link to a
retailer that sells the product for the ease of the reader. No profit is received by Mr.
Papillon for these links. See Con-Way, Inc. v. CONWAYRACING.COM, 2009 WL
2252128, *2 (N.D. Cal. July 28, 2009) (“A passive website that merely provides links to
other sites, but does not itself sell products within a forum, is insufficient to confer
jurisdiction.”); Simplicity, Inc. v. MTS Prods., 2006 U.S. Dist. LEXIS 17626, *23-25
(E.D. Pa. Apr. 14, 2006) (“[The] website falls short of a commercially interactive site for
which personal jurisdiction is proper because it does not allow customers to purchase
products online – it merely provides the names and website links to retailers, etailers and
specialty stores which sell its products.”).
The fact that Mr. Papillon sells a small number of premium podcast subscriptions
advertised on his website does not render it commercially active. To subscribe, an
interested party must e-mail Mr. Papillon separately; the transaction is not conducted on
the website. See, e.g., Bensusan Restaurant Corp. v. King, 937 F. Supp. 295, 297
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(S.D.N.Y. 1996) (no personal jurisdiction where passive website directed interested
parties to contact website operator independently). The podcasts are also available for
free listening on the website. At most, Mr. Papillon’s website falls into the middle
ground of the Zippo sliding scale because there is some minimal user interactivity.
Visitors to the website may post their own personal comments at the end of Mr.
Papillon’s blog posts. Such minimal interactivity, coupled with the lack of commercial
activity, is insufficient to convey general personal jurisdiction subjecting Mr. Papillon to
being “haled into court in the forum state to answer for any of its activities anywhere in
the world.” Brand, 796 F.2d at 1073.
B.
Specific Personal Jursidiction
Because Mr. Papillon’s non-commercial blog is insufficient to establish general
personal jurisidiction over him in Idaho, Mr. Shymatta must establish specific personal
jurisdiction. Mr. Shymatta cannot do so, because he has failed to establish the first two
requirements of the Schwarzenegger test.
1.
First Requirement - Purposeful Availment
“The non-resident defendant must purposefully direct his activities or consummate
some transaction with the forum or resident thereof; or perform some act by which he
purposefully avails himself of the privilege of conducting activities in the forum, thereby
invoking the benefits and protections of its laws.” Schwarzenegger, 374 F.3d at 802.
This requirement is referred to as purposeful availment, and requires a showing that a
defendant “(1) committed an intentional act, (2) expressly aimed at the forum state, (3)
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causing harm that the defendant knows is likely to be suffered in the forum state.”
Menken v. Emm, 503 F.3d 1050, 1058 (9th Cir. 2007) (internal quotation omitted).
The complaint lacks any allegations that Mr. Papillon committed an intentional act
expressly aimed at Idaho. Specific personal jurisdiction is sought on the grounds that Mr.
Papillon’s website is accessible in Idaho. These allegations do not constitute an
intentional act aimed at Idaho. Compare Panavision Int’l., L.P. v. Toeppen, 121 F.3d
1316, 1322 (9th Cir. 1998) (cybersquatter who registered internet domain name and sent
letters to California address demanding remuneration on exchange for use of domain
name committed intentional act targeted at the forum), with Rio Properties, Inc. v. Rio
Int’l Interlink, 284 F.3d 1007 (9th Cir. 2002) (operation of passive website insufficient
absent “something more”; in this case targeted advertising with the forum state).
2.
Second Requirement - Claims Arising out of Intentional Acts
The second requirement of the Schwarzenegger test is necessarily not met because
Mr. Papillon has not engaged in any intentional acts expressly directed at Idaho. Mr.
Shymatta claims that Mr. Papillon sued him in Idaho, but the record does not support this
allegation. Mr. Papillon did file a trademark cancellation action against Mr. Shymatta’s
trademark with the United States Patent & Trademark Office in Washington, D.C., but
this filing is not analogous to bringing a tort claim in Idaho against an Idaho resident.
CONCLUSIONS
Mr. Papillon’s non-commercial, minimally interactive blog is insufficient to
subject him to general personal jurisdiction in any forum. Because Mr. Papillon has
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engaged in no intentional acts expressly directed at Idaho, specific personal jurisdiction is
also lacking in this matter.
ORDER
IT IS ORDERED:
1.
Defendant’s Motion to Dismiss for Lack of Jurisdiction (Dkt. 9) is
GRANTED.
DATED: April 21, 2011
Honorable B. Lynn Winmill
Chief U. S. District Judge
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