Personal Jurisdiction Found Lacking in Copyright Infringement Action

Marylou Dantonio filed a complaint alleging copyright infringement (pdf) against Southwest Educational Development Laboratory (SEDL) and Jill Slack.  Western District of Washington Court Judge Robert S. Lasnik granted defendants’ Fed. R. Civ.P. 12(b)(2) motion to dismiss for lack of personal jurisdiction on May 26, 2011. 

Facts.  Plaintiff Dantonio is a Washington resident.  She is an education professor whose research topics include critical thinking and curriculum development.  In 1990, she wrote a book entitled “How Can We Create Thinkers: Questioning Strategies That Work For Teachers.”  SEDL is a Texas entity engaged in developing and disseminating education-related publications.  Slack is a Louisiana resident, a program director at the Louisiana State Department of Education and a former employee in SEDL’s Metairie, Louisiana office.  Slack took some courses from Dantonio at the University of New Orleans in 1991.  Dantonio later became Slack’s doctoral adviser.  Dantonio’s complaint alleges that SEDL and Slack infringed the copyright in her book by including content from her book in materials published or distributed by Slack and SEDL.  One of defendants’ alleged contacts with Washington State was a page on the Spokane School District website which displayed what Dantonio claimed was a SEDL document written by Slack.  Slack and SEDL denied knowing that Dantonio was a resident of Washington State at the time the alleged infringement occurred.

Legal Standard for Personal JurisdictionPersonal jurisdiction is the power of a court over the parties in a case and is generally limited to a geographical area, such as a state.  A long-arm statute gives a state court jurisdiction over an out-of-state defendant.  There is no applicable federal long-arm statute, so the court applied the Washington State long-arm statute, the state where plaintiff filed the lawsuit.  Since Washington State’s long-arm statute “extends jurisdiction to the limit of federal due process,” the court was not required to examine Washington law, but needed only to determine whether exercising jurisdiction conformed to federal constitutional requirements.  (Order pdf page 3).  Specific jurisdiction, which is “jurisdiction based on the relationship between the defendant’s forum contacts and plaintiff’s claims,” was at issue. (Order pdf page 3). General jurisdiction, which is jurisdiction based on the defendant’s substantial, continuous and systematic contacts with the forum and under which defendant can be considered “present” in the forum for all purposes, was not at issue.

Although the court must decide a motion to dismiss for lack of personal jurisdiction without the benefit of an evidentiary hearing, the plaintiff must do more than rely on allegations in the complaint and must present facts to support personal jurisdiction.

Specific Personal Jurisdiction.  Whether the exercise of specific personal jurisdiction conforms to due process standards is determined by a three-pronged test:

  • The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws;
  • the claim must be one which arises out of or relates to the defendant’s forum-related activities; and
  • the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.

(Order pdf page 4).

The first prong of the above test, purposeful direction, has its own three prong test:  “whether the defendant (1) committed an intentional act, which was (2) expressly aimed at the forum state, and (3) caused harm, the brunt of which is suffered and which the defendant knows is likely to be suffered in the forum state.”  (Order pdf page 5). 

The court found that Dantonio alleged an intentional act.  Her complaint and other documentation did not satisfy the “express aiming” test.  That test requires that the defendant knows the plaintiff is a resident of the forum state.  SEDL and Slack presented evidence that they had no knowledge that Dantonio was a resident of Washington State at the time of the allegedly infringing activity. 

As an alternative to “express aiming,” Dantonio argued that SEDL posted the infringing materials on its website for distribution throughout the country.  The court applied a sliding scale analysis to this argument.

[T]he likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet.

(Order pdf pages 8-9).

The court indicated that under this approach, the plaintiff must show something more purposefully directed at the forum state than just posting on a website, such as running radio or print advertisements in the forum state.  The court did not think SEDL’s Internet contacts with Washington were sufficient to support specific personal jurisdiction over the defendants.

Under the foreseeable harm prong of purposeful direction, the court indicated that the plaintiff could not allege foreseeable harm without first establishing that defendants knew she resided in Washington.  Defendants could not foresee harm happening in Washington State unless they knew that was where the plaintiff lived.

The second prong of the overall specific personal jurisdiction test is that the plaintiff’s claim must arise out of the defendants’ forum-related activities.  A direct causal relationship is required so that plaintiff’s claim would not have arisen “but for” defendant’s contacts with the forum state.  Plaintiff was not able to establish this “but-for” relationship between her claim and the defendants’ activities in Washington State.

The third prong of the overall specific personal jurisdiction test is that the exercise of jurisdiction must be reasonable.  Reasonableness is determined by the following seven factors:

  1. the extent of the defendants’ purposeful interjection into the forum state’s affairs;
  2. the burden on the defendant of defending in the forum;
  3. the extent of conflict with the sovereignty of the defendants’ state;
  4. the forum state’s interest in adjudicating the dispute;
  5. the most efficient judicial resolution of the controversy;
  6. the importance of the forum to the plaintiff’s interest in convenient and effective relief; and
  7. the existence of an alternative forum.

(Order pdf page 11).

The court discussed these factors one by one.  It found that the first, second, and seventh factors weigh in favor of the defendants, that the third and fifth factors are neutral and that the fourth and sixth factors weigh in favor of the plaintiff.  In balancing the factors, the court stated that “plaintiff has failed to demonstrate that exercising personal jurisdiction over SEDL and Dr. Slack is entirely reasonable.”  (Order pdf page 14).

The court also rejected plaintiff’s argument for personal jurisdiction under a stream of commerce theory.  “Under the stream of commerce test, the Court may assert jurisdiction where a defendant delivers its products into the stream of commerce with the expectation that they will reach the forum state.”  (Order pdf page 14).  The court found that the most that plaintiff could show was that the allegedly infringing materials somehow ended up in Washington State. 

The court denied Slack’s motion for attorney’s fees.  An award of attorney’s fees is discretionary under the Washington State long-arm statute.  The court indicated that the purpose of the attorney’s fees provision under the statute is to balance compensating out-of-state defendants with promoting the full exercise of state jurisdiction.  The court found that plaintiff’s “jurisdictional arguments were neither frivolous nor completely incapable of substantiation.”  (Order pdf page 16). 

The court dismissed plaintiff’s action without prejudice to allow her to refile in another jurisdiction in which personal jurisdiction over the defendants could be established.

This case is Marylou Dantonio v. Southwest Educational Development Laboratory (SEDL); and Jill Slack, Case No. C10-1193RSL, Western District of Washington at Seattle.

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