854 F.2d 1191 (9th Cir. 1988), 86-6527, Sinatra v. National Enquirer, Inc.

Docket Nº:86-6527.
Citation:854 F.2d 1191
Party Name:Frank SINATRA, Plaintiff-Appellee, v. NATIONAL ENQUIRER, INC., et al., Defendant, and Clinic La Prairie, S.A., Defendant-Appellant.
Case Date:August 23, 1988
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1191

854 F.2d 1191 (9th Cir. 1988)

Frank SINATRA, Plaintiff-Appellee,

v.

NATIONAL ENQUIRER, INC., et al., Defendant,

and

Clinic La Prairie, S.A., Defendant-Appellant.

No. 86-6527.

United States Court of Appeals, Ninth Circuit

August 23, 1988

Argued and Submitted Nov. 2, 1987.

Page 1192

Patricia A. Beaman, Mayer, Brown & Platt, Los Angeles, Cal., for defendant-appellant.

John A. Lawrence, Rudin, Richman & Appel, Beverly Hills, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before ALARCON and NELSON, Circuit Judges, and MUECKE, [*] District Judge.

NELSON, Circuit Judge:

Appellee Frank Sinatra brought an action under Cal.Civ.Code Sec. 3344 (1987 Supp.) 1 against Clinic La Prairie, S.A. ("Clinic") over statements made by the Clinic's employees that were published in a national tabloid. Clinic employees, when interviewed in Switzerland by reporters for the magazine, The National Enquirer, falsely stated that Sinatra visited and was given youth regeneration treatments at the Clinic. The Clinic unsuccessfully entered a special appearance to challenge the district court's assertion of in personam jurisdiction over it. The Clinic renews its jurisdictional challenge on appeal from a judgment for Sinatra.

The question on appeal involves whether statements made by employees of a Swiss clinic to a Florida corporation's reporter about a California resident, which are the foundation for an article published in a nationally circulated magazine, are sufficient minimum contacts to establish personal jurisdiction in California. This appeal involves the interaction between the "effects" reasoning of Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984), and the reasonableness focus in Asahi Metal Industries v. Superior Court of Solano County, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987). What we are required to determine is whether (1) the solicitation of business in California combined with (2) the unauthorized use of another's name in order to promote that business and (3) knowledge that such use will injure a California plaintiff in California constitute sufficient minimum contacts to establish purposeful direction.

The facts establish that the Clinic concocted this false story as part of its continuing effort to solicit clients through the use of American media and advertising. We view the misappropriation of Sinatra's name as one component of a series of ongoing efforts by the defendant to avail itself of the benefits of the California market. The defendant, although lacking complete control over dissemination, intentionally used another's name for the defendant's commercial benefit. We hold that the Clinic's cumulative contacts with California make the exercise of jurisdiction by the California courts reasonable under the Due Process Clause of the Fourteenth Amendment. Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 839-41 (9th Cir.

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1986). We therefore affirm the district court's exercise of jurisdiction over the Clinic.

BACKGROUND

Frank Sinatra is a well-known entertainer in the recording, television, and motion picture industries, who resides in California. The Clinic is a Swiss corporation, operating a medical clinic in Montreux, Switzerland. The Clinic has operated an information and reservation center in Kansas City, Missouri since 1976. Richard Van Vrooman set up the information center, represented the Clinic in the United States, and handled all reservations in the United States. Van Vrooman also coordinated the Clinic's extensive North American advertising efforts in which advertising was placed in various periodicals of national circulation. 2 Van Vrooman was the Clinic's sole representative in North America. The Clinic contests these facts and contends that it merely entered into a contract with New Life, a Missouri corporation, located solely in Missouri, to provide information to persons in the United States through a toll-free or "800" telephone number. According to the Clinic, Van Vrooman is the owner of New Life; the Clinic does not own or control any part of New Life; and no owner, employee, or officer of New Life is an owner, employee or officer of the Clinic.

On September 27, 1984, representatives of the Enquirer contacted the Clinic inquiring about an alleged visit by Sinatra. The Clinic referred the representatives to Van Vrooman. After speaking to an Enquirer editor, Van Vrooman informed the Clinic that if the Clinic would allow the Enquirer to print a statement that when the Clinic was asked if Sinatra had been a patient, the Clinic refused to confirm or deny the statement, then the Enquirer would send an editor to Switzerland to do a full feature on the Clinic. Van Vrooman also informed the Clinic of the Enquirer's circulation, its general readership, and of the fact that the Clinic could successfully solicit clients through an article published in the magazine. At the request of the Clinic's director, Van Vrooman attempted to contact Sinatra in California in order to solicit him to come to the Clinic.

In early October of 1984, an Enquirer reporter traveled to Switzerland. The president, chief of medicine, director, and other members of the Clinic met with the reporter and made several false statements concerning Sinatra's alleged stay at the Clinic, including details of their personal contact with him. Sinatra never visited the Clinic, nor did he receive any treatment from the Clinic.

The National Enquirer, on the cover of its October 23, 1984 issue, published a photograph of Sinatra with the headline, "Sinatra Injected with Youth Serum--He's Secretly Treated with Sheep Cells at Swiss Clinic" on the front page. The article falsely stated that Sinatra had been admitted to the Clinic where he had received a youth regeneration treatment that included an injection with "live cells from black sheep fetuses." After publication, Van Vrooman telexed the Clinic stating that the article was positive, and that the wording of the article "protects the Clinic."

Sinatra originally brought suit against the Clinic and the National Enquirer in California Superior Court for misappropriation of name, likeness, and photograph. The action was removed to federal district court based on diversity between the parties. Sinatra then settled with the Enquirer and voluntarily dismissed the Enquirer as a defendant. During the litigation, the Clinic moved to sever the jurisdictional issue

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in order to avoid forfeiting its jurisdictional defense under Swiss law. The district court denied the Clinic's motion to dismiss for lack of jurisdiction. The Clinic petitioned this Court for review of the district court's denial of the motion to dismiss on April 23, 1986. This Court required Sinatra to file an answer, but refused to stay the district court proceedings during the pendency of the interlocutory appeal. The district court also denied the Clinic's motion to stay proceedings pending the outcome of this Court's review of the district court's exercise of jurisdiction over the Clinic.

The Clinic moved to sever the jurisdictional issue from the remaining issues at the beginning of trial on September 16, 1986. The district court denied the motion. The Clinic then withdrew from the courtroom and refused to participate because, by participating in a trial on the merits, it could be held to have waived its defense of lack of personal jurisdiction under Swiss law. 3 At trial, Sinatra presented expert testimony concerning the value of the unlicensed use of his name. Sinatra also submitted deposition testimony and documentary exhibits as to the contacts between the Clinic, Van Vrooman and the Enquirer, and concerning the Clinic's and Van Vrooman's business activities in the United States. These materials were deemed admitted by the Clinic's refusal to respond to requests for admissions. At the conclusion of Sinatra's case and argument, the district court entered judgment in Sinatra's favor, awarding $350,000 in compensatory damages and $100,000 in punitive damages. This court eventually held that the Clinic's initial interlocutory appeal was mooted by the trial.

DISCUSSION

The district court's determination that personal jurisdiction can be properly exercised is a question of law, reviewed by this court de novo. Decker, 805 F.2d at 838. When a defendant challenges the sufficiency of personal jurisdiction, the plaintiff bears the burden of establishing personal jurisdiction over the defendant. Cubbage v. Merchent, 744 F.2d 665, 667 (9th Cir.1984), cert. denied, 470 U.S. 1005, 105 S.Ct. 1359, 84 L.Ed.2d 380 (1985). Because this case proceeded to trial, the plaintiff is put to the full burden of proof and must establish the jurisdictional facts by a preponderance of the evidence. Forsythe v. Overmyer, 576 F.2d 779, 781 (9th Cir.), cert. denied, 439 U.S. 864, 99 S.Ct. 188, 58 L.Ed.2d 174 (1978); see also Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1286, n. 2 (9th Cir.1977).

In a diversity case, the court must first inquire whether the assertion of jurisdiction satisfies California state law as well as due process requirements. Corporate Investment Business Brokers v. Melcher, 824 F.2d 786, 787 (9th Cir.1987); Scott v. Breeland, 792 F.2d 925, 927 (9th Cir.1986). Since California law confers jurisdiction coextensive with due process, this court need only analyze whether the exercise of jurisdiction comports with due process. FDIC v. British-American Ins. Co. Ltd., 828 F.2d 1439, 1441 (9th Cir.1987); Haisten v. Grass Valley Medical Reimbursement Fund, Ltd., 784 F.2d 1392, 1396 (9th Cir.1986); see Cal.Code Civ.Proc. Sec. 410.10 (West 1973).

The due process clause of the Fourteenth...

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