ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEE:
STEVEN K. HUFFER AREND J. ABEL
ROBERT F. DOLACK BRUCE W. LONGBOTTOM
Huffer & Weathers, P.C. S. ANDREW BURNS
Indianapolis, Indiana Leagre Chandler & Millard
CONSECO, INC., et al., ) ) Appellants-Plaintiffs, ) ) vs. ) No. 29A04-9802-CV-85 ) RUSS HICKERSON, ) ) Appellee-Defendant. )
OPINION - FOR PUBLICATION
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 Trial Rule 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(citing International 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.See footnote 3
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) and Panavision
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.See footnote 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 does to an individual because a corporation's harm is generally not located in a particular geographic location as an individual's harm would be. Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 420 (9th Cir. 1997). In this case, Conseco is a national corporation with insurance subsidiaries and policyholders located throughout the United States. The potential harm to be suffered by Hickerson's alleged defamation would not only be suffered in Indiana, but throughout the nation. Because we find the authority relied upon by Conseco to be distinguishable and that the "effects test" is not suitable in this case, we decline to apply the "effects test." Instead, we choose to follow Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414 (9th Cir. 1997).
it could not see how it could be inferred that Cybersell Fl. purposefully directed its efforts
towards Arizona. Cybersell, 130 F.3d at 419. The court then held that Cybersell Fl. had not
purposefully availed itself of the benefits and protections of Arizona law and, therefore,
Arizona did not have personal jurisdiction over Cybersell Fl. Id. The court noted that had
it found that Arizona had personal jurisdiction, "every complaint arising out of alleged
trademark infringement on the Internet would automatically result in personal jurisdiction
wherever the plaintiff's principal place of business is located. That would not comport with
traditional notions of what qualifies as purposeful activity invoking the benefits and
protections of the forum state." Id. at 420.
In the present case, the facts are almost identical to those in Cybersell.See footnote 7 7 Hickerson's only contact with Indiana was his discussion of Conseco in his web site. Hickerson did not direct any advertising, send any e-mails or letters, or make any phone calls to Indiana. In addition, Hickerson had never physically visited or resided in Indiana. Hickerson simply did not purposefully avail himself of the benefits and protections of Indiana law. We hold that Hickerson's discussion of Conseco in his web site, without any other contacts, was not a minimum contact sufficient to allow Indiana to exercise personal jurisdiction over him. The trial court, therefore, correctly determined that it did not have personal jurisdiction over Hickerson.
Converted by Andrew Scriven