Ronald A. Swoboda v. Hero Decks,

A Division of Parody Productions, LLC

36 So.3d 994

Court of Appeal of Louisiana, Fourth Circuit

March 31, 2010

Roland L. Belsome, Judge.

This Court is presented with the question of whether an internet merchandiser has established sufficient minimum contacts with Louisiana to be subjected to personal jurisdiction. For the following reasons, we affirm the trial court's finding that personal jurisdic- tion cannot be extended.

Parody Productions, LLC is a company that pub- lishes novelty playing cards, which are sold over the internet. The product at issue for this appeal is referred to as the "Hero Decks" line which portrays well known players from a sports team's history. One such deck in- cludes fifty-two (52) past and present players from the New York Mets baseball team. The plaintiff in this suit, Ronald Swoboda, is included in the New York Mets Hero Deck.

Mr. Swoboda claims that he has never given Parody permission to use his image. He further con- tends that through his attorney he sent Parody a cease and desist letter. Parody refused to stop selling cards featuring Mr. Swoboda's name and likeness. In response, Mr. Swoboda filed the instant lawsuit to enjoin Parody from the continued use of his name and likeness and for damages for violating his right to publicity, and, alternatively, damages for unjust enrichment. Subsequently, Parody filed exceptions of lack of personal jurisdiction.... The trial court sustained the exception [or objection] of lack of personal jurisdiction and this appeal followed.

... The party that seeks to invoke personal juris- diction bears the burden of establishing such jurisdiction exists. This burden is satisfied upon a prima facie [legally adequate] showing that jurisdiction is appropriate.

Our authority to exercise jurisdiction over a non-resident defendant is granted under the Louisiana Long-arm Statute.... This authority is limited by the due process requirements of the Fourteenth Amendment.... The due process test was first estab- lished by the United States Supreme Court in Inter- national Shoe Co. v. Washington, 326 U.S. 310 ... (1945). Two prongs of the due process test must be satisfied before personal jurisdiction can be exer- cised.... First, the non-resident defendant must have "minimum contacts" with the forum state; and sec- ondly, the exercise of personal jurisdiction in the forum state must not violate the basic notions of "fair play and substantial justice." When applying the test the quality and nature of the activity must be considered....

... Mr. Swoboda argues that because Parody maintains an interactive website that has allowed Louisiana residents to purchase the cards, ... jurisdic- tion is warranted. In order for a plaintiff to satisfy its burden of proving minimum contacts with the forum state, there must be a showing that the defendant purposefully availed itself of the laws and protections of the forum state...

In general, questions of personal jurisdiction are factual determinations that must be weighed on a case by case basis. There are no clear-cut rules or a set jurisdictional formula that can be applied in determin- ing whether personal jurisdiction conforms with the notion of "fair play and substantial justice."... To the contrary, "... any inquiry into fair play and substantial justice 'necessarily requires determinations in which few answers will be written in black and white.

The greys are dominant and even among them the shades are innumerable.' "... As relevant as that state- ment was at the time it was written, the world wide use of the internet has expanded the grey areas of personal jurisdiction.

The Zippo court employed a sliding scale approach to determine whether a website has mini- mum contacts with a forum state sufficient to invoke personal jurisdiction. Zippo Mfg. Co. v. Zippo Dot Com, Inc.... The sliding scale categorizes the web- site's activities as passive or interactive.... Passive websites disseminate information and do not pro- vide the minimum contacts that warrant the exercise of personal jurisdiction.... On the other side of the scale is the interactive website where business is clearly done through the website. Those websites typically have repeated contacts and transmissions and may also allow participants to enter into con- tracts. Under those circumstances personal jurisdic- tion is warranted.... However, when a website falls somewhere in the midrange of the scale and information is exchanged between the host and user, but not on an ongoing basis, the court must look to the extent of the interactivity and commer- cial nature of the exchange of information to determine whether personal jurisdiction should be exercised....

For instance, in Quality Design & Constr. v. Tuff Coat Mfg., Inc., ... and later in Crummey v. Morgan, .... the Louisiana First Circuit Court of Appeal utilized the Zippo sliding scale approach as a guide for determin- ing personal jurisdiction. In both cases the cause of action arose from an allegedly defective product pur- chased by a Louisiana citizen.

Tuff Coat manufactured a polyurethane coating for cement.... Tuff Coat's product, Ultra Tuff, was used in a Louisiana water park.... The pigment from the Ultra Tuff leaked and damaged the water purifi- cation system.... The construction company filed suit against Tuff Coat and Tuff Coat excepted on the grounds of personal jurisdiction.... Tuff Coat oper- ated a website that provided a telephone number for ordering the products and a list of other Louisiana businesses that had used the products.... Tuff Coat argued that their website was purely informational and thus, passive.... The First Circuit, using the Zippo sliding scale, found that Tuff Coat's website was pas- sive and even though Tuff Coat's products had been purchased by at least five Louisiana businesses, there was no purposeful availment "of Louisiana's law such that it could expect to be hailed into a Louisiana court."...

The Crummey court was presented with a defen- dant that used a third-party website to advertise and sell a recreational vehicle.... The defendants and the vehicle were located in Texas.... The record indi- cated that Crummey found the vehicle online, had communicated with the seller over the telephone, and used telephone contact to place a deposit on the vehicle with a credit card.... The defendants offered to deliver the vehicle to Louisiana, but Mr. Crummey chose to travel to Texas to pick it up.... The transfer of ownership took place in Texas and Mr. Crummey took possession of the vehicle and began his drive back to Louisiana.... Prior to crossing the Texas-Louisiana border, the vehicle stopped running.... The defendants refused to submit a full refund for the vehicle and Mr. Crummey filed suit in Louisiana.... The defen- dants filed an exception of lack of personal jurisdiction....

Using the Zippo sliding scale and distinguishing the Tuff Coat decision, the First Circuit found that there were appropriate minimum contacts to exercise personal jurisdiction.... The Crummey court found that the repeated contact the defendant had with Louisiana beginning with the advertising of the vehi- cle over the internet, then the negotiations and the tender of money over the telephone supported its finding that the defendants had purposefully availed themselves to the laws and protections of Louisiana.... The court also noted that the defendants had delivered two other vehicles to buyers in Louisi- ana. In dicta the court raised its concern for online buyers who would have no recourse in their home state against sellers who misrepresent products and/ or sell defective products....

Although the Zippo sliding scale is a useful guide when examining the extent to which websites are present in a forum state, it does not eliminate the necessity of this Court to independently review the relationship among the forum, the defendant, and the litigation when determining personal jurisdiction.... As an internet merchandiser, Parody sells playing cards on an interactive website that would fall midrange on the Zippo sliding scale. The record indicates that the play- ing cards can be purchased directly from the site. Other than the ability of Louisiana residents to access the website and purchase the merchandise, the record is void of any other contact Parody had with Louisiana. Once Parody refused to stop using Mr. Swoboda's likeness, his attorney purchased a deck of the Mets playing cards over the internet shortly before filing suit against Parody.

The pivotal question in this case is whether the plaintiff's counsel's purchase from this website or the mere ability of Louisiana citizens to access the mer- chandise from the website constitutes Parody pur- posefully availing itself of the benefits and laws of Louisiana for this cause of action. The United States Supreme Court has maintained that "the mere uni- lateral activity of those who claim some relationship with the nonresident defendant cannot satisfy the requirement of contact with the forum state."... Further, although the cause of action complained of in the plaintiff's petition stems from Parody's manufacturing and selling of the playing cards, Mr. Swoboda's cause of action as plead in his petition arose prior to his attorney's purchase of the Mets cards in Louisiana. Thus, we find that the connexity between Parody's contact with Louisiana and Mr. Swoboda's cause of action are too attenuated to constitutionally exercise personal jurisdiction over Parody. Accordingly, under the facts and circum- stances of this case, extending personal jurisdiction over Parody would not comport with the notions of fair play and substantial justice. Therefore, we affirm the trial court's ruling.

Affirmed.

Case questions:

1. Why did the Louisiana Court of Appeals conclude that the courts of that state did not have the right to exercise personal jurisdiction in this case?
2. In your opinion, might Swoboda be able to establish personal jurisdiction in Ohio?
3. What is your reaction to the decision in this case?