Caseflicks

Nebraska Supreme Court • 2013

Abdouch v. Lopez

285 Neb. 718 | 829 N.W.2d 662

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Takeaway

In short, an interactive website and a plaintiff’s in-state injury do not establish specific jurisdiction unless the defendant’s forum contacts relate to the claim and the alleged intentional tort was expressly aimed at the forum state.

Background

Helen Abdouch, an Omaha resident, received a copy of Richard Yates’ Revolutionary Road inscribed to her in 1963. The book was later stolen. Ken Lopez, a Massachusetts rare-book dealer operating Ken Lopez Bookseller (KLB), bought the book from a Georgia seller in 2009 and sold it that year to a non-Nebraska customer.

For more than three years after the sale, KLB’s website retained a “SOLD” advertisement describing the inscription and identifying Abdouch as the executive secretary of the Nebraska John F. Kennedy organization. Abdouch alleged that Lopez searched for her and used her name and identity without consent to enhance the book’s commercial value, violating Nebraska’s privacy statute.

Lopez and KLB were based in Massachusetts. They had no Nebraska property, office, registration, tax payments, advertising directed to Nebraska, or Nebraska book-fair activity. Their interactive website did generate a small number of customer-initiated Nebraska sales—about $615 from 2009 through 2011, out of approximately $3.9 million in total sales—and two Nebraska residents had asked to receive KLB catalogs. The challenged book sale and advertisement were not connected to those Nebraska transactions.

The Douglas County District Court granted Lopez and KLB’s motion to dismiss for lack of personal jurisdiction. Abdouch appealed, arguing that the interactive website and allegedly intentional privacy tort supplied specific jurisdiction in Nebraska.

Issues

Issue #1

Whether Nebraska’s long-arm statute authorized jurisdiction over Lopez and KLB independently of the federal due-process inquiry.

Holding

No separate statutory question remained; Nebraska’s long-arm statute extends jurisdiction to the full limits permitted by the U.S. Constitution, so the dispositive question was whether jurisdiction satisfied due process.

Reasoning

Nebraska’s long-arm statute permits jurisdiction over a person with any contact or relation to Nebraska sufficient under the U.S. Constitution. The Legislature intended that provision to confer the broadest jurisdiction constitutionally allowed. Accordingly, the usual two-step inquiry—statutory authorization followed by constitutional minimum contacts—collapsed into the single due-process question.

Issue #2

Whether Lopez and KLB’s website activity and limited sales to Nebraska created specific personal jurisdiction over Abdouch’s privacy claim.

Holding

No. Although KLB operated an interactive commercial website, its minimal Nebraska contacts were unrelated to Abdouch’s claim and did not show purposeful availment of Nebraska.

Reasoning

Due process requires minimum contacts such that the defendant could reasonably anticipate being sued in the forum. General jurisdiction was unavailable because Lopez and KLB had not engaged in continuous and systematic business activity in Nebraska. Abdouch therefore had to establish specific jurisdiction: contacts with Nebraska that gave rise to, or were related to, her claim.

The Court adopted the Zippo sliding-scale approach as a useful starting point for internet cases. Under that approach, a website that allows users to browse inventory and make purchases is interactive, while a merely informational site is passive. But website interactivity is not an independent test for jurisdiction; traditional due-process principles remain controlling.

KLB’s website was interactive because customers could browse and buy books online. But the Nebraska contacts generated through the site were extremely limited: a handful of customer-initiated sales totaling about $615 over three years, plus two Nebraska catalog recipients who had requested placement on the mailing list. Lopez and KLB had no other meaningful Nebraska business presence or directed activity.

Most importantly, those contacts did not relate to the asserted privacy violation. The book at issue was purchased in Georgia and sold to a non-Nebraska customer, and the online advertisement was not connected to KLB’s small number of Nebraska sales. Mere purchases, even recurring ones, do not support jurisdiction over an unrelated claim.

Issue #3

Whether the alleged intentional privacy tort and its online publication satisfied the Calder effects test for specific jurisdiction in Nebraska.

Holding

No. Abdouch did not make a prima facie showing that Lopez and KLB uniquely or expressly aimed the advertisement at Nebraska or knew that the alleged injury would be suffered there.

Reasoning

For an intentional tort, the Calder effects test requires a prima facie showing that the defendant committed intentional acts, expressly aimed those acts at the forum state, and caused harm that the defendant knew was likely to be suffered there. The test is narrowly applied; injury felt by a forum resident alone does not establish jurisdiction.

The advertisement was available worldwide, not targeted to a Nebraska audience. Its reference to Abdouch’s former role with the Nebraska Kennedy organization was incidental to explaining the book’s provenance and value. It did not show that Lopez or KLB directed the commercial offer to Nebraska residents or sought to make Nebraska the focal point of the alleged tort.

Lopez averred that he did not know Abdouch lived in Nebraska until around June 2011, after the relevant advertisement had been posted. Abdouch’s assertion that he could have located her online did not establish that he actually knew her residence or knew Nebraska would bear the brunt of any injury. Thus, the pleadings did not establish the forum-focused conduct and knowledge required by Calder.

A later call from Abdouch’s representative objecting to the advertisement could not create jurisdiction. Personal jurisdiction must rest on the defendant’s purposeful forum contacts, not on the unilateral activity of a plaintiff or someone acting for her.