Conseco, Inc. v. Hickerson

• Decision Date: 14 August 1998
• Docket Number: No. 29A04-9802-CV-85,29A04-9802-CV-85
• Citation: Conseco, Inc. v. Hickerson, 698 N.E.2d 816 (Ind. App. 1998)
• Parties: CONSECO, INC., et al., Appellants-Plaintiffs, v. Russ HICKERSON, Appellee-Defendant.
• Court: Indiana Appellate Court

Page 816

698 N.E.2d 816

CONSECO, INC., et al., Appellants-Plaintiffs, v.Russ HICKERSON, Appellee-Defendant.

No. 29A04-9802-CV-85.

Court of Appeals of Indiana.

Aug. 14, 1998.

Steven K. Huffer, Robert F. Dolack, Huffer & Weathers, P.C., Indianapolis, for Appellants-Plaintiffs.

Arend J. Abel, Bruce W. Longbottom, S. Andrew Burns, Leagre Chandler & Millard, Indianapolis, Appellee-Defendant.

OPINION

GARRARD, Judge.

Conseco, Inc. et al. ("Conseco") appeals the trial court's order finding that it did not have personal jurisdiction over the defendant, Russ Hickerson("Hickerson"), and the trial court's denial of Conseco's petition for a preliminary injunction.

We affirm.

FACTS

Conseco filed suit against Hickerson on December 12, 1997, in Indiana ¹, alleging trademark dilution and infringement, commercial disparagement, defamation, and tortious interference with contractual relationships.These claims all involved an Internet web site published by Hickerson, a resident of Texas, which mentioned Conseco and one of its subsidiaries, Philadelphia Life Insurance Company("Philadelphia Life").Hickerson's web site sought information concerning fraud or other evidence of unfair treatment by Philadelphia Life or any of Conseco's other insurance subsidiaries.The web site further explained that Hickerson sought this information to aid in a lawsuit he had filed against Philadelphia Life as the trustee of his father's estate.To aid in the gathering of information, the web site included a mailto link enabling the web site reader to send Hickerson e-mail.Hickerson's web site did not advertise or offer any product, or seek any money.Conseco's suit was based upon Hickerson's use of Conseco's trademarked name, "Conseco Inc.," in the text of his web site.

After filing its complaint, Conseco sought and received a temporary restraining order against Hickerson.The trial court then set a date for a preliminary injunction hearing and ordered Hickerson to file his response.Hickerson responded by filing an affidavit and exhibits.A hearing was held on December 24, 1997, but no further evidence was submitted.After the hearing and with the permission of the trial court, Hickerson filed a post-hearing brief contesting personal jurisdiction and Conseco's petition for a preliminary injunction.On January 6, 1998, the trial court entered its order, finding that it did not have personal jurisdiction over Hickerson and denying Conseco's request for a preliminary injunction.Conseco appeals this decision.

ISSUE

Conseco raises two issues ² on appeal, but because we find the personal jurisdiction issue to be dispositive, we will discuss only that issue:

I.Whether Hickerson's use of Conseco's trademarked name in his web site was sufficient to support personal jurisdiction in Indiana.

DISCUSSION

Conseco claims that the trial court erred by determining that it did not have personal jurisdiction over Hickerson.To support this claim, Conseco argues that the tortious effects of Hickerson's defamatory comments were sufficient under the "effects test" of Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804(1984) to sustain the exercise of personal jurisdiction over Hickerson in Indiana.Hickerson argues that the "effects test" should not be applied in this case and that his web site, absent other contacts with Indiana, was not sufficient to support personal jurisdiction in Indiana.

In Indiana, jurisdiction is presumed and the plaintiff's burden to prove jurisdiction does not arise until the defendant challenges jurisdiction.Harold Howard Farms v. Hoffman, 585 N.E.2d 18, 20(Ind.Ct.App.1992).Indiana courts must rely upon Indiana TrialRule 4.4(A), Indiana's long-arm statute, in order to gain personal jurisdiction over a non-resident.Yates-Cobb v. Hays, 681 N.E.2d 729, 732(Ind.Ct.App.1997)."The purpose of T.R. 4.4(A) is to extend jurisdiction to the boundaries permitted by the due process clause of the Fourteenth Amendment."Id."Due process requires that the defendant have certain minimum contacts with the forum state such that maintenance of the suit will not offend the traditional notions of fair play and substantial justice."Harold Howard Farms, 585 N.E.2d at 20(citingInternational Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95(1945)).The minimum contact requirement is meant to insure that the defendant has purposefully availed him or herself of the jurisdiction of the forum state.Id."The 'purposeful availment' requirement ensures that a defendant will not be haled into a jurisdiction solely on the basis of random, fortuitous or attenuated contacts...."Yates-Cobb, 681 N.E.2d at 732-33.

The issue presented by this appeal is whether the mention of an Indiana corporation in an Internet web site without any other contact with Indiana is a minimum contact sufficient to support personal jurisdiction in Indiana over a Texas resident.Based upon our research, this issue appears to be a question of first impression in Indiana.³Conseco argues that Indiana had personal jurisdiction over Hickerson because the tortious effects of the allegedly defamatory comments in his web site were felt at Conseco's Carmel, Indiana headquarters.To support this argument, Conseco relies upon several cases which utilize the Calder "effects test."We will discuss each of these cases in turn.

Conseco first relies upon Indianapolis Colts v. Metro. Baltimore Football, 34 F.3d 410(7th Cir.1994).In that case, the Indianapolis Colts filed a trademark infringement suit in Indiana against the Baltimore Canadian Football team because the Baltimore team wanted to use the name "Colts" for its team.Baltimore's only contacts with Indiana would have been the national television broadcasts of its football games and any football merchandise that might have been sold in Indiana.Relying upon the Calder "effects test,"the court found that because the effects of the trademark infringement would be felt primarily in Indiana and because of the contact through the national broadcasts, Indiana had personal jurisdiction over the Baltimore team.This case is distinguishable, however, because it did not involve the Internet and does not discuss the unique question of personal jurisdiction through the Internet.

Recognizing the unique nature of the Internet and the problems it creates for determining personal jurisdiction, the remaining cases relied upon by Conseco concern the Internet.Conseco claims that we should apply the "effects test" much like the courts in EDIAS Software Intern. v. BASIS Intern., Ltd., 947 F.Supp. 413(D.Ariz.1996)andPanavision Intern. L.P. v. Toeppen, 141 F.3d 1316(9th Cir.1998).We first note that EDIAS is readily distinguishable because the EDIAS court did not rely solely upon the "effects test" in order to find personal jurisdiction.In EDIAS, Edias filed suit against Basis in Arizona for allegedly defamatory comments made on Basis' web site and through e-mails.Though the EDIAS court did discuss the "effects test" in its analysis, it also noted that the e-mails, phone calls and faxes sent into Arizona, and merchandise sold in Arizona, were also contacts supporting personal jurisdiction over Basis in Arizona.Because the EDIAS court found other contacts to support personal jurisdiction independent of the "effects test,"EDIAS is not applicable.⁴

In Panavision, Panavision, a corporation based in California involved in providing film equipment to the movie industry, filed suit against Toeppen, an Illinois resident, in California.Panavision's suit was based on Toeppen's acquisition of Internet domain names identical to Panavision's trademarked names and his attempt to force Panavision to pay him a large sum in return for his release of those domain names.The evidence showed that Toeppen was a "cyber pirate" who obtained domain names of trademarked corporations and then forced those corporations to pay him to release the domain names to them.The Panavision court stated that simply registering a corporation's trademark as a domain name and posting a web site would not be sufficient to support personal jurisdiction over a non-resident defendant.Panavision, 141 F.3d at 1322.The court stated that something more would be required to gain personal jurisdiction.Id.In that case, the Panavision court found that Toeppen had engaged in a scheme to extort money from Panavision.This scheme was aimed at California where Panavision was located.The court then discussed the "effects test" and found that California had personal jurisdiction over Toeppen.Though Panavision does involve the use of the effects test, the court appears to have relied upon an additional factor, Toeppen's purposefully aiming his extortion scheme at Panavision in California.We are not presented here with purposefully directed activity such as in Panavision and, thus, Panavision is distinguishable.

We also decline to apply the "effects test" because we believe that it is not readily applicable in cases involving national or international corporations and the Internet.The "effects test" does not apply with the same force to a corporation as it...