374 F.3d 797 (9th Cir. 2004), 02-56937, Schwarzenegger v. Fred Martin Motor Co.

Docket Nº:02-56937.
Citation:374 F.3d 797
Party Name:Arnold SCHWARZENEGGER, Plaintiff-Appellant, v. FRED MARTIN MOTOR COMPANY, an Ohio corporation, Defendant-Appellee, and Fred Martin Superstore, a business entity, form unknown; Zimmerman & Partners Advertising, Inc., a corporation, Defendants.
Case Date:June 30, 2004
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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374 F.3d 797 (9th Cir. 2004)

Arnold SCHWARZENEGGER, Plaintiff-Appellant,


FRED MARTIN MOTOR COMPANY, an Ohio corporation, Defendant-Appellee,


Fred Martin Superstore, a business entity, form unknown; Zimmerman & Partners Advertising, Inc., a corporation, Defendants.

No. 02-56937.

United States Court of Appeals, Ninth Circuit

June 30, 2004

Argued and Submitted Sept. 10, 2003.

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Martin D. Singer and Charles J. Harder, Lavely & Singer, Los Angeles, CA; James C. Martin and Denise M. Howell (argued) and Benjamin G. Shatz, Reed Smith LLP, Los Angeles, CA, for the appellant.

Roy G. Weatherup (argued), Lewis Brisbois Bisgaard & Smith, LLP, Los Angeles, CA, J. Alan Warfield and Maureen Haight Gee, Haight, Brown & Bonesteel, LLP, Los Angeles, CA; and Larry J. Brock, Pollard, Archer, Cranert, Googooian & Stevens, Pasadena, CA, for the appellee.

Appeal from the United States District Court for the Central District of California; Florence-Marie Cooper, District Judge, Presiding. D.C. No. CV-02-06354-FMC.

Before: KLEINFELD, WARDLAW, and W. FLETCHER, Circuit Judges.

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Arnold Schwarzenegger, an internationally-known movie star and, currently, the Governor of California, appeals the district court's dismissal of his suit against Fred Martin Motor Company ("Fred Martin"), an Ohio car dealership, for lack of personal jurisdiction. Fred Martin had run a series of five fullpage color advertisements in the Akron Beacon Journal, a locally-circulated Ohio newspaper. Each advertisement included a small photograph of Schwarzenegger, portrayed as the "Terminator," without his permission. Schwarzenegger brought suit in California, alleging, inter alia, that these unauthorized uses of his image infringed his right of publicity. We affirm the district court's dismissal for lack of personal jurisdiction.

I. Background

Schwarzenegger is a resident of California. When Schwarzenegger brought this suit, he was a private citizen and movie star, best known for his roles as a muscle-bound hero of action films and distinctive Austrian accent. As explained in his complaint, Schwarzenegger was generally cast as the lead character in so-called "star-driven" films. One of Schwarzenegger's most popular and readily-recognizable film roles is that of the title character in The Terminator (1984). The Terminator is a cyborg (a cyb ernetic org anism; i.e., a robot whose mechanical parts are encased in living tissue so that it appears to be human) sent back in time from a post-apocalyptic future to present-day Los Angeles to assassinate a young woman. Throughout much of the film, Schwarzenegger, as the Terminator, maintains a stern demeanor and wears black sunglasses. This image of Schwarzenegger is highly distinctive and immediately recognizable by much of the public.

Fred Martin is an automobile dealership incorporated under the laws of Ohio and located in Barberton, Ohio, a few miles southwest of Akron. There is no evidence in the record that Fred Martin has any operations or employees in California, has ever advertised in California, or has ever sold a car to anyone in California. Fred Martin maintains an Internet website that is available for viewing in California and, for that matter, from any Internet café in Istanbul, Bangkok, or anywhere else in the world.

In early 2002, Fred Martin engaged defendant Zimmerman & Partners Advertising, Inc. ("Zimmerman") to design and place a full-page color advertisement (the "Advertisement") in the Akron Beacon Journal, a local Akron-based newspaper. The Advertisement ran in the Akron Beacon Journal five times in April 2002. Most of the Advertisement consists of small photographs and descriptions of various cars available for purchase or lease from Fred Martin. Just below a largefont promise that Fred Martin "WON'T BE BEAT," the Advertisement includes a small, but clearly recognizable photograph of Schwarzenegger as the Terminator. A "bubble quotation," like those found in comic strips, is drawn next to Schwarzenegger's mouth, reading, "Arnold says: 'Terminate EARLY at Fred Martin!' " This part of the Advertisement refers to a special offer from Fred Martin to customers, inviting them to close out their current leases before the expected termination date, and to buy or lease a new car from Fred Martin.

Neither Fred Martin nor Zimmerman ever sought or received Schwarzenegger's permission to use his photograph in the Advertisement. Schwarzenegger states in his complaint that, had such a request been made, it would have been refused. The Advertisement, as far as the record

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reveals, was never circulated outside of Ohio.

Schwarzenegger brought suit against Fred Martin and Zimmerman in Los Angeles County Superior Court alleging six state law causes of action arising out of the unauthorized use of his image in the Advertisement. He claims that the defendants caused him financial harm in that the use of his photograph to endorse Fred Martin "diminishes his hard earned reputation as a major motion picture star, and risks the potential for overexposure of his image to the public, thereby potentially diminishing the compensation he would otherwise garner from his career as a major motion picture star." According to Schwarzenegger's complaint, his compensation as the lead actor in star-driven films was based on his ability to draw crowds to the box office, and his ability to do so depended in part on the scarcity of his image. According to his complaint, if Schwarzenegger's image were to become ubiquitous--in advertisements and on television, for example--the movie-going public would be less likely to spend their money to see his films, and his compensation would diminish accordingly. Therefore, Schwarzenegger maintains, it is vital for him to avoid "over-saturation of his image." According to his complaint, he has steadfastly refused to endorse any products in the United States, despite being offered substantial sums to do so.

Defendants removed the action to federal district court in California, and Fred Martin moved to dismiss the complaint for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). The district court granted Fred Martin's motion, and Schwarzenegger timely appealed. Zimmerman is not a party to this appeal.

II. Personal Jurisdiction

We review de novo the district court's determination that it does not have personal jurisdiction over Fred Martin. Myers v. Bennett Law Offices, 238 F.3d 1068, 1071 (9th Cir. 2001). Where a defendant moves to dismiss a complaint for lack of personal jurisdiction, the plaintiff bears the burden of demonstrating that jurisdiction is appropriate. Sher v. Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990). Where, as here, the motion is based on written materials rather than an evidentiary hearing, "the plaintiff need only make a prima facie showing of jurisdictional facts." Id. In such cases, "we only inquire into whether [the plaintiff's] pleadings and affidavits make a prima facie showing of personal jurisdiction." Caruth v. International Psychoanalytical Ass'n, 59 F.3d 126, 128 (9th Cir. 1995). Although the plaintiff cannot "simply rest on the bare allegations of its complaint," Amba Marketing Systems, Inc. v. Jobar International, Inc., 551 F.2d 784, 787 (9th Cir. 1977), uncontroverted allegations in the complaint must be taken as true. AT & T v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 1996). Conflicts between parties over statements contained in affidavits must be resolved in the plaintiff's favor. Id.; see Bancroft & Masters, Inc. v. Augusta Nat'l, Inc., 223 F.3d 1082, 1087 (9th Cir. 2000) ("Because the prima facie jurisdictional analysis requires us to accept the plaintiff's allegations as true, we must adopt [the plaintiff's] version of events for purposes of this appeal.").

Where, as here, there is no applicable federal statute governing personal jurisdiction, the district court applies the law of the state in which the district court sits. See Fed.R.Civ.P. 4(k)(1)(A); Panavision Int'l, L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir. 1998). Because California's long-arm jurisdictional statute is coextensive

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with federal due process requirements, the jurisdictional analyses under state law and federal due process are the same. See Panavision, 141 F.3d at 1320 (citing Cal.Civ.Proc.Code § 410.10). For a court to exercise personal jurisdiction over a nonresident defendant, that defendant must have at least "minimum contacts" with the relevant forum such that the exercise of jurisdiction "does not offend traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (internal quotation marks and citation omitted).

A. General Jurisdiction

Schwarzenegger argues, quite implausibly, that California has general personal jurisdiction over Fred Martin. For general jurisdiction to exist over a nonresident defendant such as Fred Martin, the defendant must engage in "continuous and systematic general business contacts," Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) (citing Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485 (1952)), that "approximate physical presence" in the forum state. Bancroft & Masters, 223 F.3d at 1086. This is an exacting standard, as it should be, 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. See 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).

Schwarzenegger contends that Fred Martin's contacts with California are so extensive that it is subject to...

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