Harper v. Biolife Energy Systems, Inc. , 426 P.3d 1067 ( 2018 )

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
PAULETTE HARPER, )
) Supreme Court No. S-16488
Appellant, )
) Superior Court No. 3VA-15-00059 CI
v. )
) OPINION
BIOLIFE ENERGY SYSTEMS, INC., )
and LINKUP MEDIA GROUP OF ) No. 7294 – September 14, 2018
COMPANIES, INC., )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Valdez, Daniel Schally, Judge pro tem.
Appearances: Eric Auten, Law Office of Eric Auten, Valdez,
for Appellant. Brad S. Kane, Kane Law Firm, Los Angeles,
California, for Appellees.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
and Carney, Justices.
STOWERS, Chief Justice.
I. INTRODUCTION
A woman sued two New York corporations in the superior court in Valdez,
alleging violations of her right of publicity and right of privacy. Her claims related to
an allegedly false account regarding her recovery from cancer; she discovered the
account in a brochure promoting products by BioLife Energy Systems, Inc., while
working for BioLife’s distributor in Colorado. The defendants filed a motion to dismiss
based on lack of personal jurisdiction, claiming that neither of them has the minimum
contacts with Alaska necessary to satisfy due process. The superior court granted the
motion, reasoning that although BioLife arguably had some contacts in Alaska, the
woman’s claims did not relate to those contacts, and the defendants’ contacts were
insufficient to establish all-purpose jurisdiction. The woman appeals. We affirm.
II. FACTS AND PROCEEDINGS
Around May and June 2012, Paulette Harper, who had recently moved from
Alaska to Montrose, Colorado, worked for HoneyCombs Herbs and Vitamins for
approximately four weeks. HoneyCombs manufactured and distributed herbal and
vitamin products on behalf of other companies, including BioLife. While working at
HoneyCombs, Harper alleged she saw a brochure from BioLife that included a section
entitled “The Herbalist Behind BioLife: Michael Combs”; Combs is Harper’s brother,
and the write-up about him included an allegedly false account of his organic herb
research leading to Harper recovering from cancer.1 All parties agreed that the brochure
was available on BioLife’s website. Harper moved back to Alaska in October 2012, and
in June 2015 she filed a lawsuit against BioLife and Linkup Media Group of Companies,
Inc.,2 in the superior court in Valdez, alleging violations of her right of publicity and
right of privacy and seeking damages for unjust enrichment and punitive damages.
1
BioLife correctly pointed out to the superior court that the name “Paulette
Harper” does not appear in the brochure, which uses only “Paulette.” However, the
brochure describes “Paulette” as Combs’s sister, so Harper can likely be identified from
the brochure.
2
Harper stated that BioLife was owned by Linkup. BioLife and Linkup
responded that they are separate corporations owned by the same CEO and founder, and
that Linkup is a flagship corporation of several companies. On appeal, BioLife and
Linkup appear to concede that “Linkup is the parent company of [BioLife].” Both
companies are New York corporations.
-2- 7294
In January 2016 defendants moved to dismiss for lack of personal
jurisdiction. They argued that they had “no significant contacts with Alaska” and that
“the closest [they] ha[d] come to doing business in Alaska” was when BioLife “sen[t]
supplements ordered by a Connecticut resident to a person in Alaska” in 2012. They also
argued that the fact that the brochure was posted on BioLife’s New York-based website
did not subject them to either specific or general personal jurisdiction in Alaska.
Harper opposed the motion. She argued that BioLife’s website was highly
commercial in nature, allowing customers to purchase products online, and that the drop-
down menu for shipping included Alaska as an option, along with the other 49 states
“and a long list of nations from Afghanistan to Zimbabwe.” In her accompanying
affidavit, she alleged that HoneyCombs “place[d] at least several dozen Bio[L]ife orders
[on an average day], and some days more than one hundred,” and that “[b]ased on the
large quantity of orders [she] place[d] during just [her] brief period there, and
considering that Bio[L]ife ha[d] been in business for approximately five years, it
seem[ed] highly plausible that one or more order[s] could have originated in Alaska.”
She suggested that jurisdictional discovery was appropriate. She later filed a
supplemental affidavit, alleging that she saw “several orders from Alaska.” She stated
that “[c]onsidering the number of BioLife packages [she] saw destined for Alaska during
[her] short time working there, [she assumed] that there were many more before and after
[her] time there.”
In their reply the defendants argued that Harper was not credible because
of the inconsistency between the two affidavits and because Harper’s assertions were
contradicted by Crystal Combs, the owner of HoneyCombs, who stated that Harper “only
taped [boxes] . . . and labels were later applied in the shipping department” and that
according to HoneyCombs’s records “[t]he only shipment to Alaska was for an order
-3- 7294
from a Connecticut customer for delivery in Alaska.” They opposed the “undeveloped
discovery request.”
The superior court issued an order granting the motion to dismiss the
lawsuit without prejudice. The court found that the website was “clearly commercial in
nature” but seemed to credit the defendants’ position that BioLife shipped only one order
to Alaska. The court concluded that it lacked general personal jurisdiction over the
defendants; it also concluded that it lacked specific personal jurisdiction because
“[a]lthough Bio[L]ife arguably did at one time purposefully direct its activities to Alaska
residents, the claims at issue in this case do not relate to or arise from those activities.”
Harper moved for reconsideration and also filed a formal motion for
additional jurisdictional discovery. She argued that “she [was] and ha[d] been an Alaska
resident for all periods [of] time relevant to her complaint”3 and that Alaska was
therefore the place of injury. She also argued that she “made specific and credible
allegations regarding BioLife’s contacts with Alaska” and “clearly provide[d] a good
faith basis to believe that there is discoverable information on this question.” She
included a second supplemental affidavit.
The defendants opposed the motions, arguing among other things that the
second supplemental affidavit constituted newly introduced evidence that should not be
considered. They argued that Harper failed to explain how the court allegedly
misconstrued or misapplied the law of personal jurisdiction and that her affidavits were
contradictory.
3
She provided no support for this argument. According to her supplemental
affidavit, she moved from Alaska to Colorado in May 2012 for “a fresh start” and the
promise of a full-time job, and she was living and working in Colorado when she
discovered the brochure.
-4- 7294
The court denied the motions for reconsideration and for jurisdictional
discovery. Harper appeals.
III. STANDARD OF REVIEW
“We review questions regarding personal jurisdiction de novo because
‘[j]urisdictional issues are questions of law subject to this court’s independent
judgment.’ We adopt ‘the rule of law that is most persuasive in light of precedent,
reason, and policy’ when it comes to jurisdictional questions.”4
“When considering the appeal of a motion to dismiss we ‘presume all
factual allegations of the complaint to be true and make all reasonable inferences in favor
of the non-moving party.’ ”5
“We will not overturn an order denying a motion for reconsideration unless
there has been an abuse of discretion.”6 Abuse of discretion will be found “when the
decision on review is manifestly unreasonable.”7
4
Polar Supply Co. v. Steelmaster Indus., Inc., 127 P.3d 52, 54 (Alaska 2005)
(alteration in original) (footnote omitted) (quoting S.B. v. State, Dep’t of Health & Soc.
Servs., Div. of Family & Youth Servs., 61 P.3d 6, 10 (Alaska 2002)); accord Richter v.
Richter, 330 P.3d 934, 937 (Alaska 2014) (citing Vanvelzor v. Vanvelzor, 219 P.3d 184,
187 (Alaska 2009)).
5
Neese v. Lithia Chrysler Jeep of Anchorage, Inc., 210 P.3d 1213, 1217
(Alaska 2009) (quoting Rathke v. Corr. Corp. of Am., 153 P.3d 303, 308 (Alaska 2007)).
6
Baseden v. State, 174 P.3d 233, 238 (Alaska 2008) (citing Magden v. Alaska
USA Fed. Credit Union, 36 P.3d 659, 661 (Alaska 2001)).
7
Timothy W. v. Julia M., 403 P.3d 1095, 1100 (Alaska 2017) (quoting Fink
v. Municipality of Anchorage, 379 P.3d 183, 188 (Alaska 2016)).
-5- 7294
IV. DISCUSSION
A. The Superior Court Did Not Err In Dismissing The Action For Lack
Of Personal Jurisdiction.
Alaska courts may exercise jurisdiction over out-of-state defendants
pursuant to Alaska’s “long-arm statute,” AS 09.05.015.8 This statute lists several
specific grounds for jurisdiction and includes a broad catch-all provision.9 We have
explained that the long-arm statute ultimately “authorizes Alaska’s courts ‘to assert
jurisdiction to the maximum extent permitted by due process.’ ”10
The Due Process Clause of the Fourteenth Amendment “limits the personal
jurisdiction of state courts.”11 For a court to exercise jurisdiction over a nonresident
defendant, “the nonresident generally must have ‘certain minimum contacts . . . such that
the maintenance of the suit does not offend “traditional notions of fair play and
substantial justice.” ’ ”12 The United States Supreme Court has recognized two types of
personal jurisdiction: “general” (or “all-purpose”) jurisdiction and “specific” (or “case­
8
Polar Supply Co., 127 P.3d at 54 (“Alaska’s long-arm statute, AS 09.05.015,
is broad and refers to several specific circumstances under which personal jurisdiction
may be exercised.”).
9
AS 09.05.015.
10
Polar Supply Co., 127 P.3d at 56 (quoting Am. Nat’l Bank & Tr. Co. v. Int’l
Seafoods of Alaska, Inc., 735 P.2d 747, 749 (Alaska 1987)); see also Wash. Ins. Guar.
Ass’n. v. Ramsey, 922 P.2d 237, 240 (Alaska 1996) (“We have construed this statute to
extend Alaska’s jurisdiction to the maximum reach consistent with the guarantees of due
process under the Fourteenth Amendment.” (quoting Volkswagenwerk, A.G. v. Klippan,
GmbH, 611 P.2d 498, 500 (Alaska 1980))).
11
Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773, 1779 (2017).
12
Walden v. Fiore, 571 U.S. 277, 283 (2014) (alteration in original) (quoting
Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).
-6- 7294
linked”) jurisdiction.13 The superior court concluded that Alaska does not have either
form of personal jurisdiction over BioLife or Linkup, and Harper appeals this
determination.
1. The superior court did not err in concluding that it did not have
general jurisdiction over the defendants.
“A court with general jurisdiction may hear any claim against [a] defendant,
even if all the incidents underlying the claim occurred in a different State.”14 Harper
suggests that general jurisdiction may exist “if the [defendant] company’s contact with
the forum is substantial — for example, if a significant number of sales are made through
[its] website in the forum.” But this significantly understates the level of contact required
to establish general jurisdiction.15
“A court may assert general jurisdiction over [out-of-state] corporations to
hear any and all claims against them when their affiliations with the State are so
‘continuous and systematic’ as to render them essentially at home in the forum State.”16
This is a high standard, as “only a limited set of affiliations with a forum will render a
13
Bristol-Myers Squibb, 137 S. Ct. at 1779-80 (citing Goodyear Dunlop Tires
Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)).
14
Id. at 1780 (emphasis in original) (citing Goodyear, 564 U.S. at 919).
15
The only case Harper cites in support of her argument is CompuServe, Inc.
v. Patterson, in which the Sixth Circuit found that online sales in the forum state were
sufficient to create specific jurisdiction. 89 F.3d 1257, 1263 (6th Cir. 1996)
(“CompuServe seeks to establish . . . specific personal jurisdiction over Patterson.”); id.
at 1268-69 (concluding that “Patterson had sufficient contacts with Ohio to support the
exercise of personal jurisdiction over him.”).
16
Goodyear, 564 U.S. at 919 (quoting Int’l Shoe, 326 U.S. at 317).
-7- 7294
defendant amenable to all-purpose jurisdiction there”17:
“For an individual, the paradigm forum for the exercise of
general jurisdiction is the individual’s domicile; for a
corporation, it is an equivalent place, one in which the
corporation is fairly regarded as at home.” With respect to a
corporation, the place of incorporation and principal place of
business are “paradig[m] . . . bases for general
jurisdiction.”[18]
In Daimler AG v. Bauman, the Supreme Court explicitly rejected the notion that a
corporation is subject to general jurisdiction “in every State in which [it] ‘engages in a
substantial, continuous, and systematic course of business.’ ”19
In 1987 we addressed general personal jurisdiction in Glover v. Western Air
Lines, Inc.20 Glover, which predated the Supreme Court’s decision in Daimler, presented
the question whether Alaska courts had jurisdiction over various Avis car rental
subsidiaries for a cause of action that arose in Mexico.21 We noted that Avis’s U.S.
branch was “not licensed to do business in Alaska, ha[d] no business agents or
employees in Alaska, own[ed] no property in Alaska and maintain[ed] no bank accounts
in Alaska,” but that it was, “however, a franchisor of the ‘Avis’ name, ha[d] licensed that
name to several Alaskan franchisees, maintain[ed] considerable control over the
17
Daimler AG v. Bauman, 571 U.S. 117, 137 (2014).
18
Id. (alterations in original) (citation omitted) (first quoting Goodyear, 564
U.S. at 924; then quoting Lea Brilmayer, Jennifer Haverkamp & Buck Logan, A General
Look at General Jurisdiction, 66 TEX. L. REV. 721, 735 (1988)).
19
Id. at 137-38.
20
745 P.2d 1365 (Alaska 1987).
21
Id. at 1366.
-8- 7294
day-to-day operations of the franchisees, and receive[d] substantial income from its
licensing activities in Alaska.”22 Considering these facts in light of then-current Supreme
Court case law, we concluded that “Avis U.S.’[s] contacts with Alaska [were] of a
continuing, systematic, routine and substantial nature” and that general jurisdiction
therefore was appropriate.23 After Glover was decided, the Supreme Court clarified the
law of general jurisdiction in Daimler.24 In light of the Supreme Court’s more recent
discussion, Glover is no longer good law; had Glover come before us after the Supreme
Court’s decision in Daimler, we would have reached a different result. It is clear from
Daimler that exercising general jurisdiction requires contacts that are substantially
equivalent to incorporation or maintaining its principal place of business in the forum
state.25
In this case Harper has not alleged facts that would establish a prima facie
case of general jurisdiction. Harper’s superior court filings make the following
allegations: both BioLife and Linkup are New York corporations, and Linkup’s
headquarters are in New York City; BioLife’s products are manufactured and distributed
by HoneyCombs, which is based in Colorado; BioLife maintains an online presence
through its website, through which consumers can place orders for herbal products;
previously, the website’s formfor submitting shipping information included a drop-down
menu that listed all 50 states, including Alaska; BioLife has made at least one product
22
Id. at 1369.
23
Id. at 1368-69 (analogizing the factual scenario in Glover to Perkins v.
Benguet Consol. Mining Co., 342 U.S. 437 (1952), and Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408 (1984)).
24
571 U.S. at 120-42.
25
See id. at 137.
-9- 7294
shipment to Alaska, and possibly several more; BioLife published a brochure containing
an allegedly false account regarding Harper, who claims she was an Alaska resident at
all times relevant to this action, although she was living and working in Colorado when
she discovered the brochure; and while living in Alaska, Harper received several samples
of BioLife products from her family (not directly from BioLife).
From these allegations, it is clear that New York would have general
jurisdiction over both BioLife and Linkup, as both are incorporated there and maintain
headquarters there. BioLife may arguably be subject to general jurisdiction in Colorado
because its products are manufactured there and distributed from there, which could
make Colorado BioLife’s “principal place of business.”26 But none of these allegations,
even if taken as true and considered in the light most favorable to Harper, establish
contacts with Alaska approaching a level that would make either company “essentially
at home” in this state.27 Accordingly, it was not error for the superior court to rule that
it had no general jurisdiction in this case.
2. The superior court did not err in concluding that it did not have
specific jurisdiction over BioLife.
A forum state without general jurisdiction may nonetheless exercise specific
personal jurisdiction over a nonresident defendant if the defendant has “certain minimum
contacts with [the forum state] such that the maintenance of the suit does not offend
‘traditional notions of fair play and substantial justice.’ ”28 Specific jurisdiction is
appropriate where a suit “aris[es] out of or relate[s] to the defendant’s contacts with the
26
Id.
27
Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919
(2011).
28
Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).
-10- 7294
forum.”29 The Supreme Court has emphasized that “[i]n order for a court to exercise
specific jurisdiction over a claim, there must be an ‘affiliation between the forum and the
underlying controversy, principally, [an] activity or an occurrence that takes place in the
forum State.’ When there is no such connection, specific jurisdiction is lacking
regardless of the extent of a defendant’s unconnected activities in the State.”30 “[E]ven
regularly occurring sales of a product in a State do not justify the exercise of jurisdiction
over a claim unrelated to those sales.”31
In this case Harper makes numerous allegations regarding BioLife’s
commercial contacts with Alaska. These allegations are disputed, but because the case
was dismissed for lack of jurisdiction without an evidentiary hearing, they must be taken
as true.32 These allegations may well be sufficient to support specific jurisdiction over
a claim such as breach of contract or product liability brought by an Alaskan BioLife
customer.33 But Harper brought claims for right of publicity, right of privacy, and unjust
29
Daimler, 571 U.S. at 127 (alterations in original) (quoting Helicopteros, 466
U.S. at 414 n.8).
30
Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773, 1781 (2017)
(second alteration in original) (citation omitted) (quoting Goodyear, 564 U.S. at 919).
31
Goodyear, 564 U.S. at 930 n.6, quoted in Bristol-Myers Squibb, 137 S. Ct.
at 1781.
32
See Neese v. Lithia Chrysler Jeep of Anchorage, Inc., 210 P.3d 1213, 1217
(Alaska 2009).
33
Cf. Polar Supply Co. v. Steelmaster Indus., Inc., 127 P.3d 52, 53-54, 58
(Alaska 2005) (concluding that personal jurisdiction was appropriate in a breach of
warranty action where a Canadian manufacturer contracted to sell a telescopic trolley
boom to an Alaskan company, even though the manufacturer was only responsible for
shipping the boom as far as Washington).
-11- 7294
enrichment. These claims do not arise out of any commercial activity, but out of BioLife
publishing the allegedly false story about Harper. And specific jurisdiction must rest on
contacts with Alaska that relate to these claims.
a. “Minimum contacts” in the intentional torts context
In Keeton v. Hustler Magazine, Inc., a New York resident brought a libel
suit in federal court in New Hampshire against an Ohio corporation that had its principal
place of business in California.34 The Supreme Court found that New Hampshire could
exercise specific jurisdiction over the publisher of allegedly libelous magazine articles
because it sold “some 10 to 15,000 copies of Hustler magazine in that State each month,”
which amounted to conduct “purposefully directed at New Hampshire.”35 The Court
explained that the respondent had “continuously and deliberately exploited the New
Hampshire market” and therefore “must reasonably anticipate being haled into court
there in a libel action based on the contents of its magazine.”36 Even though the
petitioner had no connection with New Hampshire other than the “circulation . . . of a
magazine that she assist[ed] in producing,” the Court explained that “New Hampshire
ha[d] a significant interest in redressing injuries that actually occur[red] within the State”
and that the “petitioner was suing, at least in part, for damages suffered in New
Hampshire.”37
In Calder v. Jones, a California resident brought suit in California state
34
465 U.S. 770, 772 (1984).
35
Id. at 772, 774-75.
36
Id. at 781.
37
Id. at 772, 776.
-12- 7294
court over an allegedly libelous article written and edited in Florida.38 The Supreme
Court found that both the author and the editor were subject to personal jurisdiction in
California because “their intentional, and allegedly tortious, actions were expressly
aimed at California,”39 making them “primary participants in an alleged wrongdoing
intentionally directed at a California resident.”40 The Court explained that “[t]he
allegedly libelous story concerned the California activities of a California resident . . .
whose television career was centered in California,” that it “was drawn from California
sources,” and that “the brunt of the harm, in terms both of respondent’s emotional
distress and the injury to her professional reputation, was suffered in California.”41 The
Court noted that the petitioners wrote and edited the allegedly libelous article, knowing
that it “would have a potentially devastating impact upon respondent” and “that the brunt
of that injury would be felt by respondent in the State in which she live[d] and work[ed]
and in which the [publishing magazine] ha[d] its largest circulation.”42 In short, the
Court found that California jurisdiction was proper “because of [petitioners’] intentional
conduct in Florida calculated to cause injury to respondent in California.”43
Although Calder involved a libel claim, courts have applied its “effects
38
465 U.S. 783, 784 (1984).
39
Id. at 789.
40
Id. at 790.
41
Id. at 788-89.
42
Id. at 789-90.
43
Id. at 791.
-13- 7294
test” broadly to other intentional torts.44 However, “merely asserting that a defendant
knew or should have known that his intentional acts would cause harm in the forum state
is not enough to establish jurisdiction.”45 In Walden v. Fiore, the Supreme Court
explained that in Calder, “the ‘effects’ caused by the defendants’ article . . . connected
the defendants’ conduct to California, not just to a plaintiff who lived there.”46 The
Court explained that “the plaintiff cannot be the only link between the defendant and the
forum. Rather, it is the defendant’s conduct that must form the necessary connection
with the forum State that is the basis for its jurisdiction over him.”47
In Walden, a Georgia police officer working as a deputized agent for the
Drug Enforcement Administration seized a large amount of cash at a Georgia airport
from a Nevada resident who was about to board a plane to Las Vegas; later, the agent
submitted an allegedly false affidavit to show probable cause for forfeiture of the funds.48
The Nevada resident argued that this amounted to conduct “expressly aimed” at Nevada,
but the Supreme Court disagreed.49 As the Court explained:
Petitioner’s actions in Georgia did not create sufficient
contacts with Nevada simply because he allegedly directed
44
See Pavlovich v. Superior Court, 58 P.3d 2, 7 (Cal. 2002) (citing IMO
Indus., Inc. v. Kiekert AG, 155 F.3d 254, 259-60, 261 (3d Cir. 1998); Far W. Capital, Inc.
v. Towne, 46 F.3d 1071, 1077 (10th Cir. 1995)).
45
Id. at 8 (citing IMO, 155 F.3d at 265; Griffis v. Luban, 646 N.W.2d 527, 534
(Minn. 2002)).
46
571 U.S. 277, 288 (2014) (emphasis in original).
47
Id. at 285.
48
Id. at 279-81.
49
Id. at 282.
-14- 7294
his conduct at plaintiffs whom he knew had Nevada
connections. Such reasoning improperly attributes a
plaintiff’s forum connections to the defendant and makes
those connections “decisive” in the jurisdictional analysis. It
also obscures the reality that none of petitioner’s challenged
conduct had anything to do with Nevada itself.[50]
In short, in order to establish a prima facie case for personal jurisdiction over BioLife,
it is not enough for Harper to allege that BioLife took actions aimed at her or actions that
harmed her. Rather, she would need to allege some action or conduct by BioLife, related
to her claims, that was purposefully directed at the State of Alaska.
Here, Harper has made a number of specific allegations regarding BioLife’s
contacts with Alaska. Before the superior court, she asserted that BioLife made
numerous sales of herbal products to Alaska; however, as explained above, Harper’s
claims do not arise out of any commercial sales, so these cannot be used as the basis for
specific jurisdiction. She also cannot rely on claiming Alaska residency, as Walden
clearly bars a court from exercising jurisdiction based solely on the plaintiff’s
connections with the forum state, even if the defendant was aware of those connections.51
The only alleged contact relating to Harper’s claim is the publication of the brochure that
mentions Harper. Harper did not allege that any Alaska resident ever actually viewed
the brochure online or had it emailed or otherwise transmitted to them, or that any
printed copy of the brochure was ever sent to Alaska. Nor did she allege that BioLife
drew on Alaska sources in writing the brochure or that BioLife knew of any connection
its brochure would have to Alaska. In other words, unlike Keeton and Calder, there is
no indication that BioLife in any way targeted Alaska when publishing the brochure.
50
Id. at 289 (citation omitted).
51
Id.
-15­ 7294
Rather, like in Walden, BioLife’s publication appears to be entirely out-of-state conduct
that happened to affect a person with connections to Alaska.52 Accordingly, the case law
on personal jurisdiction in the intentional tort context weighs against concluding that
BioLife is subject to specific personal jurisdiction in Alaska.
b. “Minimum contacts” on the Internet
On appeal, just as in her opposition to the motion to dismiss before the
superior court, Harper’s argument focuses primarily on the fact that the brochure
containing the allegedly false story about her was available on BioLife’s website. She
argues that “the primary issue at hand is whether [BioLife’s] internet presence or other
electronic remote contacts here [in Alaska] suffice” as a basis for specific jurisdiction.
The website is commercial in nature, but Harper’s claims (for right of
publicity, right of privacy, and unjust enrichment) do not arise out of any commercial
activity on the website, so we need not decide whether BioLife’s “electronic remote
contacts” could be a basis for jurisdiction. The claims relate to the publication of a
brochure that included an allegedly false account regarding Harper and which was
available on the website and viewable in Alaska. The posting of the brochure on the
website is passive,53 and Harper has made no allegation that the brochure was ever
viewed in Alaska or that BioLife knew that she had any connections to Alaska. The
superior court did not err in concluding that “[a]lthough Bio[L]ife arguably did at one
time purposefully direct its activities to Alaska residents, the claims at issue in this case
do not relate to or arise from those activities.” And the court did not err in determining
that it did not have specific personal jurisdiction over BioLife.
52
See id. at 291.
53
See Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D.
Pa. 1997).
-16- 7294
3. The superior court did not err in concluding that it did not have
specific jurisdiction over Linkup.
Harper makes no allegations at all about Linkup apart from its affiliation
with BioLife. Specifically, Harper asserts that BioLife is a subsidiary of Linkup,
although the defendants alleged in superior court that the two are separate companies
under common ownership.54 But even taking Harper’s allegations as true, she still fails
to make a prima facie case for jurisdiction over Linkup.
Beyond claiming that Linkup and BioLife share a CEO and founder and
claiming that Linkup owns BioLife, Harper has made no allegations that relate to Linkup
in any way. The lack of allegations regarding Linkup was specifically raised in the
defendants’ reply brief in support of their motion to dismiss, but Harper did not respond
to this issue in any filings before the superior court or on appeal. Even taking all
Harper’s allegations as true and viewing all facts in the light most favorable to her
position, the record before this court does not reveal any contacts between Linkup and
Alaska. Linkup has not been shown, or even alleged, to have purposefully availed itself
of the privileges of conducting activities in Alaska, either on its own behalf or through
BioLife. Thus, any exercise of jurisdiction over Linkup would be inappropriate, and the
superior court did not err in determining that it did not have specific jurisdiction over
Linkup.
B. The Superior Court Did Not Misconstrue And Misapply The Law
Regarding The Place Of Harper’s Injury.
Harper argues that the superior court “misconstrued and misapplied law
regarding the place of [her] injury,” pointing specifically to the superior court’s comment
54
On appeal, BioLife and Linkup appear to have abandoned this allegation,
apparently conceding that “Linkup is the parent company of [BioLife].”
-17- 7294
that “even if Harper had demonstrated that Bio[L]ife sold a large volume of its goods
through its website to Alaskans, this does not appear to be relevant to whether or not
Bio[L]ife’s allegedly false advertising using Harper’s name caused her any harm
whatsoever.”55 In Keeton v. Hustler Magazine, Inc., the Supreme Court explained that
“[t]he tort of libel is generally held to occur wherever the offending material is
circulated.”56 Since the offending material in this case was accessible on BioLife’s
website in Alaska, BioLife could be said to have “circulated” it in Alaska, thereby
arguably injuring Harper in Alaska. But the defendant magazine’s contacts with the
forum state in Keeton consisted of the continuous and deliberate shipping of the
offending material into that state.57 Here, the only active contacts Harper alleges BioLife
had with Alaska are unrelated to the offending material. And the superior court properly
drew this distinction. The superior court made no comment as to where any injury to
Harper took place; it neither construed nor applied the law regarding the place of
Harper’s injury at all, much less incorrectly. Thus, the court did not misconstrue or
misapply the law regarding the place of Harper’s injury.
C. The Superior Court Did Not Abuse Its Discretion In Denying Harper’s
Request To Allow Further Jurisdictional Discovery.
Harper finally argues that the superior court abused its discretion by
refusing to “open the case for further jurisdictional discovery before dismissing it on
55
Harper cites Rosa & Raymond Parks Institute for Self Development v.
Target Corp., 90 F. Supp. 3d 1256 (M.D. Ala. 2015), aff’d 812 F.3d 824 (11th Cir. 2016),
in support of her argument. But that case dealt with choice-of-law rules, which is a
separate issue from whether a court can appropriately exercise personal jurisdiction over
a defendant. Id. at 1260-61.
56
465 U.S. 770, 777 (1984).
57
Id. at 781.
-18- 7294
jurisdictional grounds” and that the court improperly “rel[ied] solely on its own reading
and cred[i]bility determination of the Appellees, who each have a very substantial self-
interest in the outcome of this litigation.” Citing several Ninth Circuit cases,58 she argues
that “where affidavits are directly conflicting on material points, it is not possible for the
district court to ‘weigh’ the affidavits in order to resolve disputed issues,” and for that
reason, “a plaintiff must make only a prima facie showing of jurisdictional facts through
the submitted materials in order to avoid a defendant’s motion to dismiss.”59
As explained above, “[w]hen considering the appeal of a motion to dismiss
we ‘presume all factual allegations of the complaint to be true and make all reasonable
inferences in favor of the non-moving party.’ ”60 The superior court’s order does
indicate that the court considered the defendants’ jurisdictional assertions more credible
than Harper’s: specifically, it noted that “according to [BioLife’s] records, BioLife has
never made a sale to an Alaska resident.” Under the applicable standard, the court
should have taken Harper’s allegations as true and assumed that BioLife had fulfilled
“several orders from Alaska.”
Regardless, this error was harmless: it is clear from the superior court’s
order that its ultimate decision was not based on disputed facts. The court concluded that
no personal jurisdiction existed, not because BioLife had insufficient contacts with
Alaska, but because the alleged contacts were not relevant to Harper’s actual claims: the
court stated, “Although Bio[L]ife arguably did at one time purposefully direct its
58
See, e.g., Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797 (9th Cir.
2004); Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280 (9th Cir. 1977).
59
See Data Disc, Inc., 557 F.2d at 1285.
60
Neese v. Lithia Chrysler Jeep of Anchorage, Inc., 210 P.3d 1213, 1217
(Alaska 2009) (quoting Rathke v. Corr. Corp. of Am., 153 P.3d 303, 308 (Alaska 2007)).
-19- 7294
activities to Alaska residents, the claims at issue in this case do not relate to or arise from
those activities.” Harper cites no authority for the proposition that the superior court is
required to open the case for jurisdictional discovery when the plaintiff has failed to
allege facts that would allow jurisdiction if construed in the light most favorable to the
plaintiff. It was not an abuse of discretion for the superior court to decline opening the
case for jurisdictional discovery.
V. CONCLUSION
We AFFIRM the superior court’s order dismissing Harper’s suit.
-20- 7294