OPINION
JOHN A. MASTROPIETRO, Chairman.
The present case involves determining which of the various employers of the decedent Richard Brooks is the "last carrier on the risk" for his death due to cancer, in which asbestos exposure was a substantial factor. The decedent's spouse, Nena Brooks, sought benefits under § 31-306 C.G.S. for his demise and has been awarded such benefits. The trial commissioner concluded that W. J. Barney, a firm in which the decedent worked in the mid to late 1980's, was the last responsible party for the purposes of apportionment under § 31-299b C.G.S. The Connecticut Insurance Guaranty Association ("CIGA") has stepped into the shoes of the defunct carrier for W. J. Barney. CIGA has appealed the trial commissioner's Finding and Award. They argue that this panel erred in Franklin v. Superior Casting, 5269 CRB-7-07-9 (June 15, 2009) and CIGA cannot be found liable to be the lead carrier in an apportionment case. They also argue that the trial commissioner did not have sufficient evidence to conclude W. J. Barney was the last employer in which the decedent was substantially exposed to asbestos. We are not persuaded by either argument and affirm the Finding and Award.
The trial commissioner found the following facts which are relevant to our consideration of this case. The decedent Richard Brooks testified twice at deposition regarding his employment history, job duties and exposure to asbestos. He testified that he worked at Electric Boat as a welder in 1969 and was exposed to significant amounts of asbestos in that job. From 1969 to 1975 he worked for W. J. Barney and was exposed to significant amounts of asbestos. Following his period working for W. J. Barney he worked for Ebasco (1974 and 1975), Bechtel (1973 and 1974), CN Flagg (1979) and Crouse (1980, 1981 and 1982). At each job he was exposed to asbestos. The claimant returned to work at W. J. Barney in 1988 and was exposed to asbestos at that job. The claimant also worked at Benzoline Energy Company, Connecticut Refining Corp., and the New Haven City Schools. His exposure to asbestos at these jobs was minimal.
The claimant first exhibited manifestation of lung cancer on July 19, 2002. At that point he earned an average weekly wage of $698.57, with a resulting compensation rate of $408.91 weekly. The claimant died on April 28, 2004. Prior to his death the decedent-claimant was examined by Dr. Arthur DeGraff, Jr. Dr. DeGraff opined that the decedent's exposure to asbestos over his entire employment history was a substantial and significant contributing factor in causing his cancer and resulting death. He further opined the decedent's asbestos exposure up through the "early 80's" and "mid-80's" resulted in the development of his cancer. Dr. Susan Daum performed a records review of the decedent's medical records on October 20, 2004. She opined that his occupational exposure to asbestos was a substantial and significant contributing factor in the development of his lung cancer and resulting death.
The claimant was married at the time of his death to the claimant Nena Brooks, who was his dependent surviving spouse. Mrs. Brooks was receiving benefits under the Longshore and Harbor Workers' Compensation Act as a result of the decedent's exposure to asbestos, with resulting lung cancer and death from this exposure.
Based on these facts the trial commissioner concluded the claimant was a credible witness as to the worksites where he was exposed to asbestos. He found Dr. DeGraff and Dr. Daum credible and persuasive as to the causation of the claimant's cancer. Therefore the trial commissioner concluded the decedent sustained an occupational lung cancer as a result of asbestos exposure, which was diagnosed on July 19, 2002 and caused his demise on April 28, 2004. Based upon those foregoing conclusions, the trial commissioner found that the Respondent W. J. Barney was the responsible party pursuant to § 31-299b C.G.S. The commissioner found the decedent's asbestos exposure in locations while in the employ of subsequent employers was minimal at best and not injurious or a substantial contributing factor to the decedent's lung disease.
There were a number of post-decision motions filed in this matter. Three Motions to Correct were filed. The Motion to Correct filed by the insurer Liberty Mutual was granted, the motions filed by the insurer Hartford Insurance Group and by CIGA were denied. CIGA filed a Motion for Articulation seeking the trial commissioner to expound upon six issues. The trial commissioner granted only one articulation. He articulated that while in Finding, ¶ 3 and Conclusion, ¶ D he found the claimant was a credible and persuasive witness, he found the claimant's testimony as to being exposed to asbestos at any employer subsequent to W. J. Barney in 1988 to be "speculative and de minimis at best." CIGA has now pursued this appeal.
CIGA's appeal is based on two distinct issues. First, they argue that as a matter of statute they cannot be the lead carrier responsible for § 31-299b C.G.S., apportionment of a claim for occupational disease or repetitive trauma. The arguments advanced in this appeal are a verbatim recitation of the arguments we rejected in Franklin, supra. As this case is indistinguishable from Franklin we must extend stare decisis to our prior decision. We uphold the trial commissioner on this issue.
The other argument advanced is that the trial commissioner's determination that W. J. Barney was the last employer in which the claimant/decedent was exposed to a significant amount of asbestos was not supported by the evidence on the record. As CIGA views the record, because the claimant/decedent and the expert witnesses did not offer entirely consistent testimony there is inadequate probative evidence supporting the trial commissioner's findings and a remand is in order.
The trial commissioner in this matter waded into the arduous task of evaluating the relative contribution of multiple employers over a number of decades to the decedent's ultimate demise. This constitutes a difficult judgment call. It is unlikely that in matters such as this that a clear-cut point can be readily established where the claimant stopped being exposed to any level of exposure to the harmful agent that contributed to the claimant's illness. As we pointed out in O'Connor v. Med-Center Home Healthcare, Inc., 4954 CRB-5-05-6 (July 17, 2006) "[t]here are few principles of jurisprudence more fundamental than the principle that a trier of fact must be the one party responsible for finding the truth amidst conflicting claims and evidence." We have also followed the principle delineated in Daniels v. Alander, 268 Conn. 320 (2004) that "[a]s with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did." Id., 330.
We have reviewed the testimony of the two physicians who opined as to the causation of the claimant/decedent's illness. Dr. DeGraff testified in a April 2, 2004 letter that the claimant's asbestos exposure "continued until the early 1980's." Respondent's Exhibit 1. Dr. DeGraff also answered affirmatively at a January 12, 2005 deposition that the claimant/decedent was significantly exposed to asbestos "until the mid 1980's or so." Deposition Transcript pp. 12-13. Dr. Daum opined in a October 20, 2004 report that the claimant was exposed from time to time to asbestos until he went to work in the 1990's for Arden Engineering. She opined that asbestos exposure was a significant contributing factor in the claimant's death. Claimant's Exhibit D.
Dr. Daum also opined that all exposure to asbestos was "cumulative and injurious" Claimant's Exhibit P, pp. 99-100 and that W. J. Barney was not the last place the claimant had an injurious exposure to asbestos. Claimant's Exhibit P, p. 113. Counsel for CIGA has focused on this point to argue the Finding and Award is inconsistent with the evidence the trial commissioner found credible. We first note that the trial commissioner was under no obligation to credit every opinion of this expert witness in order to find her credible and persuasive. See O'Connor v. Med-Center Home Healthcare, Inc., 4954 CRB-5-05-6 (July 17, 2006) "[w]e have frequently held a trial commissioner may adopt part of an expert's testimony while discounting other parts of the same expert's testimony." We also note that Dr. Daum's opinions are not fully congruent with the legal standard for determining liability under Chapter 568 which requires a finding of "significant" or "substantial" exposure. SeeStevens v. Raymark Industries, Inc., 5215 CRB-4-07-4 (March 26, 2008), appeal dismissed, A.C. 29795 (June 26, 2008) and Konovaluk v. Graphite Die Mold, Inc., 4437 CRB-3-01-9 (August 8, 2002).
We note that neither physician specifically identified the claimant's work at W. J. Barney in 1988 as the last substantial exposure to asbestos in the claimant/decedent's health history. Such evidence supportive of the trial commissioner's decision could only have been gleaned from the claimant's testimony.
The claimant/decedent was deposed on August 15, 2003 and April 21, 2004. He testified that when he worked at the Pfizer facility "preparing piping and stuff" he was employed by the W. J. Barney Company. Claimant's Exhibit E, p. 7. He testified that while working for W. J. Barney "[t]here was predominantly a lot of asbestos air in the yard." Id., p. 8. The claimant testified he left the employ of W. J. Barney and worked for a variety of other employers in the construction business. The claimant testified that he returned to the employ of W. J. Barney in 1988 and was employed at "[b]asically the same thing we'd done in the past, maintenance type work." Claimant's Exhibit F, p. 21. The claimant said he "possibly" was exposed to asbestos in 1988, id., but then described working in tunnels at the facility powerhouse where "we would still be exposed to it working on there." Id., p. 22. He further testified "whenever I saw an old steam line with gray matter hanging off it all pulverized and powdery, I knew it wasn't fiberglass, I assumed." Id. He later stated that he "definitely was" exposed to asbestos while working for W. J. Barney and further stated "[e]very building in that yard had asbestos in it." Id., P. 24.
Counsel for the claimant points us to the recent Supreme Court decision in Marandino v. Prometheus Pharmacy, 294 Conn. 564 (2010) as governing the fact pattern herein. In Marandino the claimant testified as to the facts concerning a subsequent injury and her treating physician opined that based on those facts that subsequent injury was a compensable sequelae of the initial compensable injury. The trial commissioner and this panel were satisfied this constituted sufficient evidence to support an award, but the Appellate Court reversed this panel on that issue. The Supreme Court, however, reinstated the award. They concluded the treating physician's report met the standard delineated in Struckman v. Burns, 205 Conn. 542 (1987) to constitute competent medical evidence. Id., 592. In addition, the Supreme Court pointed out that medical opinions cannot be considered in a vacuum, but must be considered in the context of the factual circumstances surrounding the claimant's injury.
Moreover, as we have explained previously herein, it is proper to consider medical evidence
along with all
other evidence to determine whether an injury is related to the employment. Murchison v. Skinner Precision Industries, Inc., supra,
162 Conn. 151. Id., at 594 (Emphasis in original).
In the present case the claimant testified that his work at W. J. Barney in 1988 was substantially similar to the work he performed for that firm in the 1970's. The claimant's testimony also indicated his work at that time for W. J. Barney exposed him to asbestos in the same manner as the exposure he faced during his various employments in the period up to the early and mid 1980's. Dr. DeGraff specifically testified that the claimant's exposure to asbestos in the workplace in the early to mid 1980's was a substantial factor in his illness. Dr. Daum concurred with this opinion and as CIGA points out, would extend the period of liability even beyond the claimant's employment with W. J. Barney.
While we note that 1988 might not fit squarely within the "early 1980's" or "mid 1980's" timelines stated by Dr. DeGraff at his deposition and in his report we believe the "totality of the evidence" herein supports the trial commissioner's conclusion O'Reilly v. General Dynamics Corp., 52 Conn. App. 813, 817-818 (1999). We find that Dr. DeGraff's testimony was based primarily on the claimant's actual activities at work exposing him to asbestos, and not based on the claimant's age or a precise chronology.
On appeal, this panel must provide "every reasonable presumption" supportive of the Finding and Award. Torres v. New England Masonry Company, 5289 CRB-5-07-10 (January 6, 2009). We are satisfied the evidence on the record establishes that as of 1988 the claimant/decedent was still exposed to a substantial level of workplace asbestos exposure and that as the medical experts concur as to causation, W. J. Barney is a responsible party in this matter.
CIGA argues that even if W. J. Barney was a responsible party as of 1988 that the trial commissioner was bound by Dr. Daum's opinion to find later employers responsible as the § 31-299b C.G.S. employer. We disagree. The standard for determining whether a claimant's exposure to an injurious agent makes an employer responsible under the apportionment statute is whether the party was on the risk "at a time of `substantial exposure'" Stevens v. Raymark Industries, Inc., 5215 CRB-4-07-4 (March 26, 2008), appeal dismissed, A.C. 29795 (June 26, 2008). In Stevens the party responsible for § 31-299b C.G.S. apportionment argued that a subsequent employer should be found liable. We determined that the trial commissioner reached a determination after weighing the testimony on the record the subsequent asbestos exposure to the decedent was de mininis. "The claimant presented evidence that the decedent was not exposed to any appreciable extent. We may infer the trial commissioner credited this evidence and we cannot second guess a trial commissioner's determination of the evidence presented before him." Id. We are unable to discern how the trial commissioner's conclusions herein are inconsistent with the precedent in Stevens.
This panel followed similar reasoning in Konovaluk v. Graphite Die Mold, Inc., 4437 CRB-3-01-9 (August 8, 2002) "we rule that § 31-299b allows the last insurer on the risk at the time of substantial exposure in an occupational disease or repetitive trauma case to seek reimbursement from all other solvent insurers or self-insured employers . . ." Id.
CIGA finally argues that since this panel ordered a remand in two other cases where a trial commissioner relied on two differing expert opinions, Bazelais v. Honey Hill Care Center, 5011 CRB-7-05-10 (October 25, 2006) and Risola v. Hoffman Fuel Company of Danbury, 5120 CRB-7-06-8 (July 20, 2007), appeal dismissed, A.C. 29056 (October 18, 2007) that the present matter must also be remanded. Appellant's Brief, pp. 9-12. CIGA's recitation of the facts of those cases clearly establishes those cases are factually distinguishable. Neither case involved apportionment or an occupational disease. The opinions in those cases did not differ on a date of last exposure, but on material issues as to whether a claimant was disabled or on the percentage of permanent disability. Neither case involved issues in which the claimant's testimony could resolve the matter for the trial commissioner. In addition, by granting an articulation of Finding, ¶ 3 and Conclusion, ¶ D we believe the trial commissioner has reached a de facto reconciliation of the differing medical opinions. He has found the exposure standard required under our precedent was not met by employers subsequent to W. J. Barney. We do not believe any benefit would be achieved from a remand when this question was conclusively answered by the trial commissioner in issuing his articulation.
See Lopez v. Lowe's Home Improvement Center, 4922 CRB-6-05-3 (March 29, 2006) "There is no need for physicians to uniformly agree on causation to uphold a trial commissioner's finding regarding a compensable injury."
We uphold the trial commissioner's denial of the appellant's Motion to Correct. This motion sought to interpose the respondents' conclusions as to the law and the facts presented. Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006) and D'Amico v. State/Dept. of Correction, 73 Conn. App. 718, 728 (2002).
We affirm the Finding and Award and dismiss this appeal.
Commissioners Nancy E. Salerno and Jack R. Goldberg concur in this opinion.
position by not filing a timely objection. In the alternative, Heineman argues that the district court correctly ruled it lacked personal jurisdiction over her. According to Heineman, the record does not reflect that she had systematic or continuous contacts with Missouri or, even if she did, that they were aimed or purposefully directed at Missouri.
First, as a threshold question, we address whether the Johnsons may challenge the district court's decision to grant Heineman's motion. Heineman contends that the Johnsons have waived any challenge to the district court's order dismissing her from the lawsuit because they failed to file a timely opposition to the motion to dismiss at the district court.
Heineman filed a motion to dismiss all counts against her, and the Johnsons did not file a timely response. Instead, two weeks after their deadline passed, the Johnsons filed a motion for additional time. The Johnsons then filed a response to Heineman's motion before the district court ruled on the Johnsons' motion for additional time. An affidavit from Susan Johnson was attached with the response. The district court denied the Johnsons' motion for additional time and struck the response from the record. The district court subsequently granted Heineman's motion to dismiss, finding that the Johnsons did not respond in a timely manner, but nevertheless, "out of caution," the district court stated that it considered Susan Johnson's affidavit before ruling on Heineman's motion to dismiss.
"It is a well-established rule that issues not raised in the trial court cannot be considered by this court as a basis for reversal." Edwards v. Hurtel, 724 F.2d 689, 690 (8th Cir. 1984) (per curiam). "The primary purpose of the rule is promptly to inform the district judge of possible errors, and thus give the judge an opportunity to reconsider the ruling and make desired changes." Id. This rule is followed "in all but exceptional cases where the obvious result would be a plain miscarriage of justice or inconsistent with substantial justice." Kelley v. Crunk, 713 F.2d 426, 427 (8th Cir. 1983) (per curiam).
In Shanklin v. Fitzgerald, a plaintiff filed certain exhibits without properly authenticating the exhibits. 397 F.3d 596, 601 (8th Cir. 2005). The defendant made a motion to strike the exhibits, and the plaintiff did not oppose. Id. The district court granted the motion to strike, and on appeal the plaintiff contended that the district court erred in striking the motion. Id. We held that "[a]bsent exceptional circumstances, we cannot consider issues not raised in the district court." Id.
The Johnsons distinguish Shanklin by pointing out that the district court considered the affidavit from Susan Johnson in making a ruling on the motion to dismiss, while the Shanklin court did not review any documents. Also, the Johnsons did attempt to oppose the motion to dismiss, although in an untimely fashion. In Shanklin the plaintiff did not even attempt to file an out-of-time opposition. We find merit in this argument, because the district court acknowledged that it considered some opposition to the motion — Susan Johnson's affidavit — which the Johnsons clearly submitted for the purpose of opposing the motion to dismiss. Therefore, the trial court had an opportunity to "reconsider" the issue of whether to dismiss knowing that the Johnsons opposed dismissal. In fact, in the district court's order, it specifically stated that "out of caution, and because the Court must construe the jurisdictional facts in the light most favorable to the Johnsons, the Court has considered the affidavit of Sue Johnson. . . ." Therefore, we hold that the Johnsons sufficiently preserved their argument for appeal.
Grants of motions to dismiss for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2) are reviewed de novo. First Nat'l Bank of Lewisville, Ark. v. First Nat'l Bank of Clinton, Ky., 258 F.3d 727, 729 (8th Cir. 2001). "If the District Court does not hold a hearing and instead relies on pleadings and affidavits, then we must look at the facts in the light most favorable to the nonmoving party and resolve all factual conflicts in favor of that party." Epps v. Stewart Info. Serv. Corp., 327 F.3d 642, 646-47 (8th Cir. 2003).
In Missouri, to obtain personal jurisdiction over a non-resident defendant, "the plaintiff must make a prima facie showing that (1) the cause of action arose out of an activity covered by Missouri's long-arm statute, . . . and (2) the defendant had sufficient minimum contacts with Missouri to satisfy the requirements of due process."
Berry v. Berry (In re Marriage of Berry), 155 S.W.3d 838, 840 (Mo.Ct.App. 2005) (quoting
Wray v. Wray, 73 S.W.3d 646, 649 (Mo.Ct.App. 2002)). "The evidentiary showing required at the prima facie stage is minimal. . . ."
Willnerd v. First Nat'l Neb., Inc., 558 F.3d 770, 778 (8th Cir. 2009) (internal quotations and citation omitted).
Missouri's long-arm statute, Mo. Rev. Stat. § 506.500, confers jurisdiction to the extent allowed by the Due Process Clause. State ex rel Deere and Co. v. Pinnell, 454 S.W.2d 889, 892 (Mo. 1970). Under this standard, "[p]ersonal jurisdiction exists only if the contacts between the defendant and the forum state are sufficient to establish that the defendant has purposefully availed himself of the benefits and protections of the forum state." Johnson v. Woodcock, 444 F.3d 953, 955 (8th Cir. 2006). In Aftanase v. Economy Baler Co., we set forth five factors courts must consider when determining whether there are sufficient minimum contacts to confer jurisdiction. 343 F.2d 187, 197 (8th Cir. 1965). These factors include: (1) the nature and quality of the contacts with the forum state; (2) the quantity of the contacts; (3) the relationship of the cause of action to the contacts; (4) the interest of Missouri in providing a forum for its residents; and (5) the convenience or inconvenience to the parties. Id. The first three factors are primary factors, and the remaining two factors are secondary factors. Id. The third factor distinguishes whether the jurisdiction is specific or general. Digi-Tel Holdings, Inc. v. Proteq Telecomm., Ltd., 89 F.3d 519, 523 n. 4 (8th Cir. 1996). We must look at all of the factors in the aggregate and examine the totality of the circumstances in making a personal-jurisdiction determination. Northrup King Co. v. Compania Productora Semillas Algodoneras, S.A., 51 F.3d 1383, 1388 (8th Cir. 1995).
The statutes states, in relevant part:
1. Any person . . . whether or not a citizen or resident of this state . . . submits . . . to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any such acts:
(1) The transaction of any business within this state;
(2) The making of any contract within this state;
(3) The commission of a tortious act within this state. . . .
The minimum contacts necessary for due process may be the basis for either "general" or "specific" jurisdiction. Davis v. Baylor Univ., 976 S.W.2d 5, 12 (Mo.Ct.App. 1998). A court obtains general jurisdiction "against a defendant who has `continuous and systematic' contacts with the forum state, even if the injuries at issue in the lawsuit did not arise out of the defendant's activities directed at the forum." Dever v. Hentzen Coatings, Inc., 380 F.3d 1070, 1073 (8th Cir. 2004) (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415-16, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)). Specific jurisdiction over a defendant is exercised when a state asserts personal jurisdiction over a nonresident defendant that "`has purposefully directed [its] activities at [Missouri] residents'" in a suit that "`arises out of' or `relates to' these activities." Lakin v. Prudential Sec., Inc., 348 F.3d 704, 707 (8th Cir. 2003) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)).
a. General Jurisdiction
Heineman's contacts with the State of Missouri — which must be found to be "continuous and systematic" before general jurisdiction is conferred — may be summarized as follows: She purchased cats in Missouri for delivery to the Johnsons; personally delivered cats to the Johnsons in Missouri on two separate occasions; conducted her cat breeding and sale business with the Johnsons, using the Johnsons' website — operated from the Johnsons' location in Unionville, Missouri — for a period of about four years, which ended two years before this lawsuit was initiated; and engaged in numerous telephone conversations and email exchanges with the Johnsons during that four-year period.
Heineman is a citizen and resident of Colorado who sells cats and kittens throughout the United States, and advertises her business on the website www.BoutiqueKittens.com. The Johnsons and Heineman first made contact when Heineman purchased a cat from the Johnsons in late 2001 or early 2002. Around April 2002, they began a business relationship that lasted until March 2006. During this time, Heineman provided the Johnsons administrative assistance with their website, www.CozyKittens.com. She also purchased advertising space for cats she sold from Colorado on the Johnsons' website, advertising approximately 50 cats thereon. Between 2002 and 2006, Heineman purchased about 16 cats for the Johnsons from breeders throughout the United States. These cats were generally shipped to Colorado, then eventually shipped to Missouri. Heineman never worked as an employee of the Johnsons.
Applying the Aftanase factors, see Lakin, 348 F.3d at 711, we do not find sufficient contacts between Heineman and Missouri to support general jurisdiction. Heineman did business almost exclusively from her Colorado home, except for infrequent trips to Missouri to deliver cats. See Johnson, 444 F.3d at 956-57 (holding that evidence that nonresident party collaborated with a resident and had a publishing relationship with another did not establish general jurisdiction); see also Helicopteros, 466 U.S. at 418, 104 S.Ct. 1868 ("[W]e hold that mere purchases, even if occurring at regular intervals, are not enough to warrant a State's assertion of in personam jurisdiction over a nonresident [party] in a cause of action not related to those purchase transactions."). Heineman's contact with Missouri was neither continuous nor systematic.
With the Johnsons unable to establish that Heineman had continuous and systematic contacts with Missouri, we turn to the question of specific jurisdiction.
b. Specific Jurisdiction
Specific jurisdiction is proper "only if the injury giving rise to the lawsuit occurred within or had some connection to the forum state, meaning that the defendant purposely directed its activities at the forum state and the claim arose out of or relates to those activities." Steinbuch v. Cutler, 518 F.3d 580, 586 (8th Cir. 2008) (citing Burger King Corp., 471 U.S. at 472, 105 S.Ct. 2174).
The Johnsons' primary support for specific jurisdiction are two sets of actions that Heineman allegedly undertook — posting defamatory statements on www.ComplaintsBoard.com and using the trademark "Cozy Kittens" on the website www.BoutiqueKittens.com. The trademark claim will be discussed under a Lanham Act analysis. See infra. The question for both sets of actions is whether Heineman "purposefully directed" her internet activities at the State of Missouri.
When considering the sufficiency of internet contacts under a specific jurisdiction analysis, we have found the Zippo test instructive. Lakin, 348 F.3d at 710-11. In Zippo Mfg. Co. v. Zippo Dot Com, Inc., the court examined the issue of whether a website could provide sufficient contacts for specific personal jurisdiction. 952 F.Supp. 1119, 1124 (W.D.Pa. 1997). The court created a "sliding scale" to measure the likelihood of personal jurisdiction. Id. The scale runs from active contract formation and repeated transmission of computer files to mere posting of information on a website. Id. The www.ComplaintBoards.com site lands on the "mere posting" end of the scale. Although InMotion represents www.ComplaintsBoard.com as an "interactive" website, users may actually only post information. There is no interaction between users and a host computer; the site merely makes information available to other people. The website's accessibility in Missouri alone is insufficient to confer personal jurisdiction.
There are other ways the Johnsons can obtain specific jurisdiction, including employing the Calder effects test. See Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984). "To sustain [their] argument, [the Johnsons] would have to show that [Heineman] knew that `the brunt of the injury would be felt by [them] in the State in which [they] live [] and work[]' and intentionally targeted the forum state." Steinbuch, 518 F.3d at 586 (quoting Calder, 465 U.S. at 789-90, 104 S.Ct. 1482).
The "effects" test, therefore, provides that
a defendant's tortious acts can serve as a source of personal jurisdiction only where the plaintiff makes a prima facie showing that the defendant's acts (1) were intentional, (2) were uniquely or expressly aimed at the forum state, and (3) caused harm, the brunt of which was suffered-and which the defendant knew was likely to be suffered-[in the forum state].
Lindgren v. GDT, LLC, 312 F.Supp.2d 1125, 1132 (S.D.Iowa 2004) (internal quotations and citation omitted). We have stated that this test "allows the assertion of personal jurisdiction over non-resident defendants whose acts are performed for the very purpose of having their consequences felt in the forum state."
Dakota Indus., Inc. v. Dakota Sportswear, Inc., 946 F.2d 1384, 1390-91 (8th Cir. 1991) (internal quotations and citation omitted). Heineman's alleged acts were not so performed.
The Johnsons allege that Heineman stated on www.ComplaintBoards.com that "Sue Johnson and Cozy Kittens operated from Unionville, Missouri, where they killed cats, sold infected cats and kittens, brutally killed and tortured unwanted cats and operated a `kitten mill' in Unionville, Missouri." Although we accept this allegation as true, alone, it fails to show that Heineman uniquely or expressly aimed her statements at Missouri. The statements were aimed at the Johnsons; the inclusion of "Missouri" in the posting was incidental and not "performed for the very purpose of having their consequences" felt in Missouri. There is no evidence that the www.ComplaintsBoard.com website specifically targets Missouri, or that the content of Heineman's alleged postings specifically targeted Missouri,
There is no copy of any post from Heineman, defamatory or otherwise, in the record, although at this summary judgment stage we construe the evidence in the light most favorable to the Johnsons. Semple v. Federal Exp. Corp., 566 F.3d 788, 791 (8th Cir. 2009).
Additionally, even if the effect of Heineman's alleged statement was felt in Missouri, we have used the Calder test merely as an additional factor to consider when evaluating a defendant's relevant contacts with the forum state. In Dakota, we declined to grant personal jurisdiction solely on the basis of forum state effects from an intentional tort. Id. at 1391 ("In relying on Calder, we do not abandon the five-part [ Aftanase] test. . . . We simply note that Calder requires the consideration of additional factors when an intentional tort is alleged."). We therefore construe the Calder effects test narrowly, and hold that, absent additional contacts, mere effects in the forum state are insufficient to confer personal jurisdiction. See Hicklin Eng'g, Inc. v. Aidco, Inc., 959 F.2d 738, 739 (8th Cir. 1992) (per curiam). As explained, supra, there are no additional contacts between Heineman and Missouri to justify conferring personal jurisdiction.
Posting on the internet from Colorado an allegedly defamatory statement including the name "Missouri" in its factual assertion does not create the type of substantial connection between Heineman and Missouri necessary to confer specific personal jurisdiction.
c. Lanham Act Claims
The Johnsons also challenge the district court's denial of jurisdiction for the Johnsons' Lanham Act claim. The Johnsons allege that Heineman violated the Lanham Act, 15 U.S.C. § 1051 et seq., by using the words "Cozy Kittens and Cuddly Cats" to advertise her cat breeding business on www.BoutiqueKittens.com. As noted, Heineman denies ownership of this website, but for purposes of our review of a dismissed count, we assume that Heineman owns the site in question.
The Lanham Act governs the use of federal trademarks. Davis v. Walt Disney Co., 430 F.3d 901, 903 (8th Cir. 2005) ("The Lanham Act prohibits the use of a mark in connection with goods or services in a manner that is likely to cause confusion as to the source or sponsorship of the goods or services.")
Here, we do not decide the viability of the Johnsons' Lanham Act claim on the merits, only whether the district court had jurisdiction to decide the claim. The Missouri long-arm statute confers jurisdiction to Missouri courts for torts committed within Missouri. See Mo.Rev. Stat. § 506.500.
Infringing upon a trademark, as a tort, may be grounds for personal jurisdiction under Missouri's long-arm statute. Uncle Sam's Safari Outfitters, Inc. v. Uncle Sam's Army Navy Outfitters-Manhattan, Inc., 96 F.Supp.2d 919, 921 (E.D.Mo. 2000). However, the same "minimum contacts" analysis applies to determine if the allegedly tortious act was committed within Missouri. Id. Heineman, as discussed, does not have sufficient contacts to grant general personal jurisdiction. The Johnsons argue that Heineman sells cats and kittens throughout the United States, including in the State of Missouri via advertising on www.BoutiqueKittens.com, thus creating specific personal jurisdiction. However, under Zippo, whether specific personal jurisdiction could be conferred on the basis of an interactive website depends not just on the nature of the website but also on evidence that individuals in the forum state accessed the website in doing business with the defendant. Zippo, 952 F.Supp. at 1125-26. Although www.BoutiqueKittens.com may be characterized as interactive, there is no evidence in the record that Heineman engaged in any transaction or exchange of information with a Missouri resident via www.BoutiqueKittens.com, or that a Missouri resident ever accessed the website. We decline to confer personal jurisdiction based on only the possibility that a Missouri resident had contact with Heineman through www.BoutiqueKittens.com.
Similarly, the Johnsons have failed to prove that www.BoutiqueKittens.com is uniquely or expressly aimed at Missouri; thus Calder provides no support for their Lanham Act claim. For these reasons, as well as the reasons stated supra, Part II.B.1, we hold that Heineman does not have sufficient minimum contacts with Missouri and affirm the district court's decision to dismiss the Lanham Act claims against Heineman for lack of personal jurisdiction.
Because we find there was no personal jurisdiction, we do not reach Heineman's other issues related to service and venue.
2. Melanie Lowry a. Personal Jurisdiction
The Johnsons also contend that the district court erred by dismissing their claims against Melanie Lowry for lack of personal jurisdiction because the web activities of Lowry were purposefully directed at the citizens of the State of Missouri. We address this issue with an analysis similar to the one completed above for Heineman.
The only evidence in the record relating to Lowry is an affidavit she attached to her motion to dismiss. In it, Lowry claimed that she has never been to Missouri, does not own any property in Missouri, does not have any bank accounts or telephone listings in Missouri, has never paid taxes in Missouri nor insured a risk in Missouri, and has never knowingly, regularly or continuously transacted business in the State of Missouri. Her affidavit also states that she has never done business with the Johnsons, does not know them, and has only spoken to Susan Johnson one time on the telephone — a call that Johnson initiated. The evidence supporting systematic and continuous contacts between Lowry and Missouri is thus even weaker than that for Heineman. Again applying the Aftanase factors we hold that the district court did not have general jurisdiction over Lowry.
The court also did not have specific jurisdiction over Lowry. Lowry's alleged activities related to www.ComplaintsBoard.com are similar to Heineman's, except that Lowry did not include any statement related to or mentioning the State of Missouri. No statement of any kind by Lowry was purposefully directed at Missouri. We affirm the district court's decision to dismiss the Johnsons' claims against Lowry for lack of personal jurisdiction.
b. Default Judgment
Finally, the Johnsons argue that the district court abused its discretion or erred by vacating the Missouri state court default judgment against Lowry under Federal Rule of Civil Procedure 60(b). The Johnsons specifically challenge the district court's lack of a showing of good cause.
The district court, "for good cause shown," "set aside" the default judgment against Lowry as part of its order granting Lowry's motion to dismiss for lack of personal jurisdiction. Thus, while no findings were made or specific reasons given for setting aside the judgment, it is reasonable to surmise that the district court set aside the default judgment as void because the district court found that Missouri courts lacked personal jurisdiction over Lowry.
The default judgment was filed on September 22, 2008, and Lowry filed a motion to set aside the judgment on November 12, 2008. Lowry did not reference a rule of civil procedure in her motion, but Lowry is a pro se litigant and therefore we construe her pleadings broadly. See Smith v. Hundley, 190 F.3d 852, 855 n. 7 (8th Cir. 1999) (holding that pro se pleadings are afforded a liberal construction). Because Lowry specifically stated that "this is my motion to set aside the default judgment" and in the same motion argued that the court did not have personal jurisdiction, we will view her motion as a Rule 60(b)(4) motion. See Baldwin v. Credit Based Asset Servicing and Securitization, 516 F.3d 734, 737 (8th Cir. 2008) (characterizing a pro se motion that did not specify a particular rule of civil procedure as a Rule 60(b)(4) motion because the motion stated that the court did not have personal jurisdiction).
"The court may set aside an entry of default for good cause, and it may set aside a default judgment under Rule 60(b)." Fed.R.Civ.P. 55(c). Rule 60(b)(4) provides in relevant part that "the court may relieve a party . . . from a final judgment [if] . . . the judgment is void[.]" Fed.R.Civ.P. 60(b)(4). "A judgment is void if the rendering court lacked jurisdiction or acted in a manner inconsistent with due process." Baldwin, 516 F.3d at 737 (internal quotations and citation omitted). "Although we have sometimes said that relief from a judgment under Rule 60(b) is an extraordinary remedy left to the discretion of the district court, relief from a judgment that is void under Rule 60(b)(4) is not discretionary." United States v. Three Hundred Fifty-Three Thousand Six Hundred Dollars, in United States Currency, 463 F.3d 812, 813 (8th Cir. 2006). "Thus, while Rule 60(b) dispositions are generally reviewed for an abuse of discretion . . . an order [granting] relief pursuant to Rule 60(b)(4) is reviewed de novo." Id. (internal citation omitted).
This is not a case where Lowry lost on the merits, failed to appeal, and belatedly attempted to avoid the judgment with a Rule 60(b)(4) motion. Cf. Kocher v. Dow Chem. Co., 132 F.3d 1225, 1229 (8th Cir. 1997) ("A party may not use a Rule 60(b)(4) motion as a substitute for a timely appeal. In other words, if a party fails to appeal an adverse judgment and then files a Rule 60(b)(4) motion after the time permitted for an ordinary appeal has expired, the motion will not succeed merely because the same argument would have succeeded on appeal.") (internal citations omitted). Rather, Lowry challenged jurisdiction from the inception of this case. The district court found that Lowry could not be subjected to personal jurisdiction in Missouri. Although we reviewed that decision on the merits in this opinion, see supra, Part II.B.2.a, for purposes of review of the district court's decision to set aside the default judgment, we do not consider the underlying decision; we are confined to determining only whether the district court erred in granting Lowry's Rule 60(b)(4) motion. See Three Hundred Fifty-Three Thousand six Hundred Dollars, in United States Currency, 463 F.3d at 814. Because the district court did not err in granting Lowry's Rule 60(b)(4) motion when it found personal jurisdiction lacking we affirm the court's decision to set aside Lowry's adverse judgment.
III. Conclusion
Accordingly, we affirm the judgment of the district court.