Civil Procedure I Model Answer to Practice Question The discussion of the five Burger King factors and the general jurisdiction answer are more comprehensive than they need to be. In this diversity case, Arnold Schwarzenegger, a well-known movie actor and current candidate for governor of California, asserts claims against Ted Gibson Nissan (“Gibson”) , an automobile dealership located in Terre Haute, Indiana, for misappropriation of his image in connection with a newspaper advertisement in the Terre Haute Times Sentinel. This court has subject matter jurisdiction based on diversity: Schwarzenegger is a California citizen, Gibson is an Indiana corporation with its principal place of business in Indiana, and the amount in controversy exceeds $75,000. Gibson has filed a motion to dismiss for lack of personal jurisdiction. It notes that the advertisement in question appeared only four times in the Times Sentinel, a newspaper that circulates roughly 33,000 papers within a distribution area encompassing Terre Haute and the immediately surrounding area, which includes both a portion of Indiana and a small sliver of Illinois. Based on the limited circulation of the advertisement that included Schwarzenegger’s image, Gibson asserts that it is not subject to personal jurisdiction in a court in California. California’s long-arm statute (applicable to federal courts as well as state courts) allows the state to exercise personal jurisdiction to the full extent permitted by the U.S. Constitution. We therefore proceed directly to consider whether the exercise of personal jurisdiction over Gibson would violate the Due Process Clause. Broadly speaking, the due process inquiry is governed by the International Shoe standard, which permits a state to exercise personal jurisdiction if a defendant has certain minimum contacts with the forum state such that the exercise of personal jurisdiction does not offend traditional notions of fair play and substantial justice. Subsequent cases have identified two strands of personal jurisdiction. First, a court may exercise specific jurisdiction if the defendant has minimum contacts with the forum state and the lawsuit itself arises from those contacts. Second, a court may exercise general jurisdiction if the defendant has contacts with the forum state so substantial, systematic, and continuous that the defendant is essentially at home in the forum state. Because Schwarzenegger contends that both specific jurisdiction and general jurisdiction exist in this case, I will address each in turn. A. Specific Jurisdiction 1. Minimum Contacts As noted above, specific jurisdiction exists where the defendant has minimum contacts with the forum state and the lawsuit arises from those contacts. The inquiry is both simplified and complicated here by the fact that most of Gibson’s contacts that Schwarzenegger identifies—the purchase of cars imported through California, the contract with a California direct mail firm, the contract with a California sales training firm, and Gibson’s website—are completely unrelated to this lawsuit. They therefore are irrelevant for specific jurisdiction purposes. Schwarzenegger identifies only one possible argument in support of specific jurisdiction: that the use of his image in Gibson’s newspaper advertisements foreseeably caused Schwarzenegger injury in California. This argument invokes the effects test of Calder v. Jones. Calder has four requirements: The defendant committed an intentional tortious act. Here, there is no question that Gibson intentionally used Schwarzenegger’s image, and that it did so knowing that it lacked Schwarzenegger’s permission and was not compensating Schwarzenegger. This first element is satisfied. The injuring instrumentality entered the forum state. Here, the injuring instrumentality—the newspaper ad—circulated only in Indiana and Illinois. There is no evidence that the ad entered California. This element is not satisfied. The defendant’s act caused injury in the forum state. To the extent Schwarzenegger suffers injury from Gibson’s ad, that injury is a personal one that will be felt wherever Schwarzenegger finds himself. As Schwarzenegger lives in California, this element is satisfied. The defendant must know that the injury will be felt in the forum state. It is highly likely that Gibson (or, more particularly, its agents acting on its behalf) knew that Schwarzenegger lived in California). Schwarzenegger is a national celebrity who, even before he began his political career in California, was a well-known figure in the Hollywood scene. Evidence that Gibson actually knew Schwarzenegger lived in California is lacking, however. This element is not satisfied. As two of the four elements of the Calder test are not satisfied, minimum contacts do not exist under the Calder test. And as Calder represents Schwarzenegger’s only argument for minimum contacts, we may safely conclude that Gibson is not subject to specific jurisdiction in California. 2. Fair Play and Substantial Justice If minimum contacts existed, we would have to ask whether jurisdiction based on those contacts would comport with traditional notions of fair play and substantial justice. This requires consideration of five factors: The burden on the defendant of litigating in the forum state. Gibson has submitted affidavits indicating that litigating in California would be expensive and disruptive of its business. Although we should not overvalue these contentions—all litigation is expensive and disruptive, wherever it occurs—neither may we ignore them. This factor tips somewhat against jurisdiction. The forum state’s interest in providing a forum for resolving the dispute. California has an interest in providing a forum to protect prominent members of a prominent state industry from unlawful commercial exploitation. This factor weighs in favor of jurisdiction. The plaintiff’s interest in obtaining effective relief. Schwarzenegger has a clear interest in obtaining relief, but there is nothing to suggest that, if he were unable to litigate in California, he would be unable to litigate elsewhere. This factor is neutral. The interest of the interstate judicial system in efficiently resolving disputes. This factor is principally concerned with avoiding multiple litigation (not an issue here) and litigating where there is easy access to evidence (also not an issue here, as some evidence will come from Indiana and some from California). This factor seems neutral. The shared interest of the several states in furthering fundamental social policies. This factor is rarely discussed in cases and does not seem implicated here. Overall, the balance seems fairly even and in any event does not tip heavily against jurisdiction. If minimum contacts existed, the five-factor test would not counsel against jurisdiction. However, as minimum contacts do not exist, neither does specific jurisdiction. B. General Jurisdiction General jurisdiction is based on the totality of the defendant’s contacts with the forum state, however unrelated to the litigation they may be. It exists when the defendant has such substantial, systematic, and continuous contacts with the forum state that the defendant is essentially at home there. Schwarzenegger points to four categories of contacts (two of which will be treated together) hat Gibson has with California: The purchase and sale of cars imported through California by Nissan of America. Gibson does not purchase the cars directly from Nissan of America in California, but rather purchases cars through an intermediary, a regional distributor located in Illinois. Gibson thus does not directly deal with California in this sense. Schwarzenegger is effectively arguing a variation of the stream of commerce theory, contending that, because Gibson purchases cars that have passed through California in the stream of commerce, it has contacts with California. But, whatever the viability of the stream of commerce theory with regard to specific jurisdiction, the Supreme Court made clear in Goodyear Dunlop v. Brown that the theory has no application with regard to general jurisdiction. This purported contact therefore cannot contribute in any meaningful way to general jurisdiction. A website viewable in California. The widely used Zippo test (which was designed as a specific jurisdiction test for cases arising out of websites) suggests that, to determine if a website constitutes a contact with the forum state, we must assess where the website falls on a spectrum from purely passive (and therefore not a contact with the forum state, even if viewed there) and highly interactive (definitely a contact). Gibson’s website is minimally interactive at most—it provides information about Gibson’s inventory and invites users to call the dealership, but it has no truly interactive features. If Schwarzenegger’s image had appeared on the website, we would have a difficult question as to whether the website represented a contact. Even if the website is a contact, though, it is truly minimal; given Daimler AG v. Bauman’s insistence that even substantial physical presence within a state does not alone render a corporation at home there, it is inconceivable that a mere website could contribute significantly (if at all) to general jurisdiction, even if the website were highly interactive and highly commercial. The final two categories of contacts—Gibson’s use of a California direct mail company and a California sales training company—clearly do represent examples of Gibson reaching out to California and doing business with California companies. The business relationships with these California companies are ongoing as well; thus, in a sense, Gibson has “continuous” contacts with California. Nevertheless, the contacts do not come close to rendering Gibson at home there. Both contractual relationships, though with California companies, are ultimately targeted at facilitating the sale of cars in Indiana; neither involves the establishment of a physical facility, let alone a principal place of business, in California. In Daimler, the Supreme Court held that Daimler's regional headquarters in California and sales of billions of dollars' worth of cars in California did not render Daimler at home there. If Daimler's substantial contacts with California were insufficient to render it subject to general jurisdiction there, then surely Gibson's more meager contacts with California are also inadequate. Gibson is plainly at home in Indiana, where it is incorporated, has its only location, has all of its personnel, and sells cars (largely to customers from Indiana). Under Daimler AG v. Bauman, it plainly is not at home in California; rather, its engagement with California, though arguably continuous, is limited and, to the extent it exists, is targeted at serving the Indiana market, not the California market. This falls far short of what Daimler requires. Gibson therefore is not subject to general jurisdiction in California. Because neither specific jurisdiction nor general jurisdiction exists here, the motion to dismiss should be granted.