February 07, 2007

Jurisdiction fun

by Sean Sirrine

Finally someone wants to talk to me about a topic I truly enjoy, (I know, I'm a sick puppy), and I don't really have any time to do so. i recently wrote a post about jurisdiction, Shisler v. Sanfer Sports Cars, and received a very long and detailed response from Dave over at Traditional Notions titled "Attention jurisdiction geeks...." (I have to admit that Dave did a much better job than I at thoroughness.)

Essentially, he thinks I'm wrong about whether the case was decided correctly. Obviously, I disagree. (By the way Dave, Mr. Sirrine is my father.)

Unfortunately, I really don't have the time this week to do a thorough post on why I think my analysis is correct. (We both agree that this area of law is pretty murky, so this is a place where reasonable minds can differ.) So, until next week, I'm going to have to settle with the comment I quickly typed to his response:

I enjoyed your analysis and hope to discuss this case with you again at length, but I am currently "snowed-under" by school work. (If only I could concentrate on the fun stuff.) The one point that I have to agree with you on is that it is far from "cut-and-dry" because of the muddle the courts have made of this issue. However, as a purely legal abstraction I do think this case is cut-and-dry.

Your analysis is right on the mark, (and far more thorough than what I have written on the subject), but I think you failed to analyze an important distinction.

I think the language found within is probably the most on point and I'd like to refer to two particular passages (I apologize for the citation omission, but as I said, I'm pretty swamped):

Here, LiVid's Web site merely posts information and has no interactive features. There is no evidence in the record suggesting that the site targeted California. Indeed, there is no evidence that any California resident ever visited, much less downloaded the DeCSS source code from, the LiVid Web site. Thus, Pavlovich's alleged "conduct in ... posting [a] passive Web site[ ] on the Internet is not," by itself, "sufficient to subject" him "to jurisdiction in California." (Jewish Defense Organization, Inc. v. Superior Court (1999) 72 Cal.App.4th 1045, 1060, 85 Cal.Rptr.2d 611 (JDO ), fn. omitted [refusing to exercise jurisdiction under the effects test even though the defendant had "passive Web sites on the Internet"]; Cybersell, Inc. v. Cybersell, Inc. (9th Cir.1997) 130 F.3d 414, 419-420 [refusing to exercise jurisdiction under the effects test even though the defendant posted infringing material on its Web site]; but see Bunn-O-Matic I, supra, 46 U.S.P.Q.2d at p. 1377 [suggesting that the operation of a Web site, by itself, is sufficient to establish express aiming at the forum state].) " 'Creating a site, like placing a product into the stream of commerce, may be felt nationwide--or even worldwide--but, without more, it is not an act purposefully directed toward the forum state.' " (Cybersell, at p. 418, quoting Bensusan Restaurant Corp. v. King (S.D.N.Y.1996) 937 F.Supp. 295, 301, affd. (2d Cir.1997) 126 F.3d 25.)

Pavlovich v. Superior Court 29 Cal.4th 262, *274, 58 P.3d 2, **10, 127 Cal.Rptr.2d 329, ***339 (Cal.,2002)

And this passage as well:

Because nothing in the record suggests that Pavlovich encouraged Web site visitors to use DeCSS to illegally pirate copyrighted motion pictures, his mere "awareness" they might do so does not show purposeful availment. (See Asahi Metal Industry Co. v. Superior Court (1987) 480 U.S. 102, 112, 107 S.Ct. 1026, 94 L.Ed.2d 92 (plur. opn. of O'Connor, J.) [the mere awareness that third parties will sweep the defendant's product into the forum state does not convert its act of selling the product to third parties "into an act purposefully directed toward the forum State"].)

Pavlovich v. Superior Court 29 Cal.4th 262, *276, 58 P.3d 2, **12, 127 Cal.Rptr.2d 329, ***341 (Cal.,2002)

So the Web site by itself isn't enough to show that there is purposeful availment, but you are arguing that the defendant actually taking action to put his product in California is not enough of an availment?

Here two citations from a case involving a church sending a pedophile into the state of California (these citations are even worse, I apologize):

Did the Milwaukee Archdiocese engage in intentional conduct expressly aimed at or targeting California, knowing the intentional conduct would cause harm in this state? The evidence supports the conclusion the Milwaukee Archdiocese intentionally sent Widera to California to get him out of Wisconsin where he had been convicted of sexual perversion against a boy and could create further problems for the Milwaukee Archdiocese. As the trial court concluded, "the evidence is certainly sufficient to show that the Archdiocese of Milwaukee chose to place this troublesome member of its clergy here in California as a sort of lend-lease program with the hope that he would be out of their sight and out of their jurisdiction." The evidence supported the conclusion the Milwaukee Archdiocese knew Widera was a pedophile and posed a serious threat of sexually abusing boys in California. By sending a known pedophile into California, the Milwaukee Archdiocese aimed its intentional conduct directly at this state. The brunt of the harm, indeed all of the harm, resulted in California. Having sent Widera into California knowing he was a convicted child abuser and a pedophile, the Milwaukee **168 Archdiocese reasonably could expect to be haled into court in California to answer for the consequences of its actions.

Archdiocese of Milwaukee v. Superior Court112 Cal.App.4th 423, 5 Cal.Rptr.3d 154 Cal.App. 4 Dist.,2003.


In Vons, supra, 14 Cal.4th at pages 460-467, 58 Cal.Rptr.2d 899, 926 P.2d 1085, the California Supreme Court firmly rejected a proximate cause test for analyzing the relation between the defendant's forum contacts and the plaintiff's claims in determining specific jurisdiction. "To require that the injury be proximately caused by the forum contact is to require that the injury 'arise out of' the forum contact in the strictest sense. Such a requirement is inconsistent with the formulation that appears in [United States Supreme Court authority].... [Citations.] ... [and] is inconsistent with the relevant standard in Cornelison [v. Chaney ]...." (Id. at p. 462, 58 Cal.Rptr.2d 899, 926 P.2d 1085.)

Archdiocese of Milwaukee v. Superior Court112 Cal.App.4th 423, 5 Cal.Rptr.3d 154 Cal.App. 4 Dist.,2003.

I think a careful reading of Pavlovich leads to the conclusion that if you avail yourself of the forum, (say, make money by selling products directly to citizens of the forum), you will find yourself within that jurisdiction.

Like I said, I'll be glad to take this up with you some more later. next week will be a bit better for me, but I wanted to at least defend myself. ;)

February 7, 2007 06:05 PM | TrackBack
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