Abdouch v. Lopez
| Decision Date | 19 April 2013 |
| Docket Number | No. S–12–363.,S–12–363. |
| Citation | 829 N.W.2d 662,285 Neb. 718 |
| Parties | Helen ABDOUCH, appellant, v. Ken LOPEZ, Individually as a resident of Massachusetts and as owner and operator of Ken Lopez Bookseller, a Massachusetts business, appellee. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court
[285 Neb. 718]1. Judgments: Appeal and Error. When a jurisdictional question does not involve a factual dispute, the issue is a matter of law. An appellate court reviews questions of law independently of the lower court's conclusion.
2. Jurisdiction: Rules of the Supreme Court: Pleadings: Appeal and Error. When reviewing an order dismissing a party from a case for lack of personal jurisdiction under Neb. Ct. R. Pldg. § 6–1112(b)(2), an appellate court examines the question of whether the nonmoving party has established a prima facie case of personal jurisdiction de novo.
3. Jurisdiction: Judgments: Appeal and Error. An appellate court reviews a lower court's determination regarding personal jurisdiction based on written submissions in the light most favorable to the nonmoving party.
4. Pleadings: Affidavits: Appeal and Error. If the lower court does not hold a hearing and instead relies on the pleadings and affidavits, then an appellate court must look at the facts in the light most favorable to the nonmoving party and resolve all factual conflicts in favor of that party.
5. Jurisdiction: Words and Phrases. Personal jurisdiction is the power of a tribunal to subject and bind a particular entity to its decisions.
6. Due Process: Jurisdiction: States. Before a court can exercise personal jurisdiction over a nonresident defendant, the court must determine, first, whether the long-arm statute is satisfied and, if the long-arm statute is satisfied, second, whether minimum contacts exist between the defendant and the forum state for personal jurisdiction over the defendant without offending due process.
7. Constitutional Law: Jurisdiction: States. Nebraska's long-arm statute provides that a court may exercise personal jurisdiction over a person who has any other contact with or maintains any other relation to this state to afford a basis for the exercise of personal jurisdiction consistent with the Constitution of the United States.
8. Jurisdiction: States: Legislature: Intent. It was the intention of the Legislature to provide for the broadest allowable jurisdiction over nonresidents under Nebraska's long-arm statute.
9. Constitutional Law: Jurisdiction: States. Nebraska's long-arm statute extends Nebraska's jurisdiction over nonresidents having any contact with or maintaining any relation to this state as far as the U.S. Constitution permits.
10. Due Process: Jurisdiction: States. When a state construes its long-arm statute to confer jurisdiction to the fullest extent permitted by the Due Process Clause, the inquiry collapses into the single question of whether exercise of personal jurisdiction comports with due process.
[285 Neb. 719]11. Due Process: Jurisdiction: States. To subject an out-of-state defendant to personal jurisdiction in a forum court, due process requires that the defendant have minimum contacts with the forum state so as not to offend traditional notions of fair play and substantial justice.
12. Due Process: Jurisdiction: States. The benchmark for determining whether the exercise of personal jurisdiction satisfies due process is whether the defendant's minimum contacts with the forum state are such that the defendant should reasonably anticipate being haled into court there.
13. Jurisdiction: States. Whether a forum state court has personal jurisdiction over a nonresident defendant depends on whether the defendant's actions created substantial connections with the forum state, resulting in the defendant's purposeful availment of the forum state's benefits and protections.
14. Due Process: Jurisdiction: States: Appeal and Error. In analyzing personal jurisdiction, an appellate court considers the quality and type of the defendant's activities in deciding whether the defendant has the necessary minimum contacts with the forum state to satisfy due process.
15. Jurisdiction: States. In the exercise of general personal jurisdiction, the plaintiff's claim does not have to arise directly out of the defendant's contacts with the forum state if the defendant has engaged in continuous and systematic general business contacts with the forum state.
16. Jurisdiction: States. If a defendant's contacts are neither substantial nor continuous and systematic and instead the cause of action arises out of or is related to the defendant's contacts with the forum, a court may assert specific jurisdiction over the defendant, depending upon the nature and quality of such contact.
17. Jurisdiction: Courts. Technological advances do not render impotent the Nebraska Supreme Court's longstanding principles on personal jurisdiction.
18. Jurisdiction: States. The “sliding scale” test in Zippo Mfg. Co. v. Zippo Dot Com., Inc., 952 F.Supp. 1119 (W.D.Pa.1997), considers a Web site's interactivity and the nature of the commercial activities conducted over the Internet to determine whether the courts have personal jurisdiction over nonresident defendants.
19. Jurisdiction: States: Constitutional Law: Statutes. The “sliding scale” test in Zippo Mfg. Co. v. Zippo Dot Com., Inc., 952 F.Supp. 1119 (W.D.Pa.1997), does not amount to a separate framework for analyzing Internet-based jurisdiction, but, rather, relies on traditional statutory and constitutional principles.
20. Torts: Jurisdiction: States. For intentional tort claims, the specific jurisdiction inquiry focuses on whether the conduct underlying the claims was purposely directed at the forum state.
21. Torts: Jurisdiction: States. 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 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.
22. Jurisdiction: States. Under a personal jurisdiction analysis, the unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum state.
Mary Kay Green for appellant.
Michael C. Cox, David A. Yudelson, and Kristin M.V. Farwell, of Koley Jessen, P.C., L.L.O., Omaha, for appellee.
Helen Abdouch filed suit against an out-of-state defendant, Ken Lopez, individually and as owner and operator of his company, Ken Lopez Bookseller (KLB), under Neb.Rev.Stat. § 20–202 (Reissue 2012) for violating her privacy rights by using an inscription in Abdouch's stolen copy of a book entitled “Revolutionary Road” 1 to advertise on the KLB rare books Web site. Although not reflected in the case title, the parties and the lower court refer to Lopez and KLB as separate defendants, and so we will treat them as such in this opinion. Lopez and KLB filed, and the district court sustained, a motion to dismiss for lack of personal jurisdiction. Abdouch now appeals.
Abdouch is a resident of Omaha, Nebraska. In 1960, Abdouch was the executive secretary of the Nebraska presidential campaign of John F. Kennedy. In 1963, Abdouch received a copy of the book, which was inscribed to her by the late author Richard Yates. The inscription stated:
At some time not specified by the record, Abdouch's inscribed copy of the book was stolen. Lopez and his company, KLB, bought the book in 2009 from a seller in Georgia and sold it that same year to a customer not in Nebraska. In 2011, Abdouch, who does not own a computer, learned from a friend that Lopez had used the inscription in the book for advertising purposes on his Web site, http:// www. lopezbooks. com. The commercial advertisement had been used with the word “SOLD” on the Web site for more than 3 years after the book was sold. The advertisement associated with a picture of the inscription stated in relevant part:
This copy is inscribed by Yates: Yates had worked as a speech writer for Robert Kennedy when Kennedy served as Attorney General; Abdouch was the executive secretary of the Nebraska (John F.) Kennedy organization when Robert Kennedy was campaign manager. The book is cocked; the boards are stained; the text is clean. A very good copy in a near fine, spine-tanned dust jacket. A scarce book, and it is extremely uncommon to find this advance issue of it signed. Given the date of the inscription—that is, during JFK's Presidency—and the connection between writer and recipient, it's reasonable to suppose this was an author's copy, presented to Abdouch by Yates. [# 028096] SOLD
Lopez is the owner and sole proprietor of KLB, which is a rare book business based in Hadley, Massachusetts. KLB buys and sells rare books and manuscripts. KLB sells these books and manuscripts through published catalogs and through the Web site.
Generally, the Web site contains KLB's inventory of rare books and manuscripts. Individuals that visit the Website can browse and search the inventory. If individuals or entities choose to, they can purchase through the Web site.
In addition to selling books through catalogs and online, KLB attends and has exhibits at various antiquarian bookfairs. Over the past 25 years, Lopez and/or KLB have attended and exhibited at an estimated 300 to 400 bookfairs in various locations within the United States, as well as overseas. Lopez and KLB have never exhibited at or attended a book fair in Nebraska.
KLB has an active mailing list for its catalogs of approximately 1,000 individuals and entities. Among that list, only two are located in Nebraska....
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