Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Harper v. Biolife Energy Systems, Inc. (9/14/2018) sp-7294

Harper v. Biolife Energy Systems, Inc. (9/14/2018) sp-7294

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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.                                                  )  

                                                              )          O P I N I O N  

                                                                                             

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  


----------------------- Page 2-----------------------

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 MayandJune2012,                                                                     PauletteHarper, who had recentlymovedfrom                                                                                            



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                                                                                                                                                                                        

                                                                                                                                                                   1  All parties agreed that the brochure  

research leading to Harper recovering from cancer.                                                                                                                                                                                                           



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,  

                                                                                                                                                                                                                                                   

               2  in the superior court in Valdez, alleging violations of her right of publicity and  

Inc.,                                                                                                                                                                                                                                                                        



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
  


----------------------- Page 3-----------------------

                                                                                                                      

                     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  



                                                                                                                            

contradictedby Crystal Combs, theowner ofHoneyCombs, whostated 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
  


----------------------- Page 4-----------------------

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                                                                                                                                                              

                                                                                                                                                                                                   3     and  that  Alaska  was  

resident   for   all   periods   [of]   time   relevant   to   her   complaint"                                                                                                                                                                              



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
  


----------------------- Page 5-----------------------

                                    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  



                                                                           5  

                                                                        

 of the non-moving party.' " 



                                                                                                                                                                                                                         

                                    "We will not overturn an order denying a motion for reconsideration unless  

                                                                                                          6     Abuse of discretion will be found "when the  

                                                                                                                                                                                                                                

                                                                           

 there has been an abuse of discretion." 

 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
  


----------------------- Page 6-----------------------

 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  



                                                                                                                                                        8  

                                                                                                                                                                                                              

pursuant  to  Alaska's  "long-arm  statute,"  AS  09.05.015.                                                                                                    This  statute  lists  several  



                                                                                                                                                                                                    9  

                                                                                                                                                                                                                     

 specific grounds for jurisdiction and includes a broad catch-all provision.                                                                                                                              We have  



                                                                                                                                                                                                                  

 explained that the long-arm statute ultimately "authorizes Alaska's courts 'to assert  



                                                                                                                                                                        10  

                                                                                                                                                                     

jurisdiction to the maximum extent permitted by due process.' " 



                                                                                                                                                                                                            

                                   The Due Process Clause of the Fourteenth Amendment "limits the personal  



                                                                           11  

                                                                                                                                                                                                 

jurisdiction of state courts."                                                     For a court to exercise jurisdiction over a nonresident  



                                                                                                                                                                                                                         

 defendant, "the nonresident generally must have 'certain minimumcontacts . . . such that  



                                                                                                                                                                                                                       

 the  maintenance  of  the  suit  does  not  offend  "traditional  notions  of  fair  play  and  



                                                           12  

                                                                                                                                                                                                                             

 substantial justice." ' "                                        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
  


----------------------- Page 7-----------------------

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.                      



                           "Acourt           with general jurisdictionmayhear                                    any  claimagainst [a]defendant,           



                                                                                                                                                           14  

even if all the incidents underlying the claim occurred in a different State."                                                                                  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  



                                                                 15  

                                                                       

to establish general jurisdiction. 



                                                                                                                                                                            

                           "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  



                                                                                                                                                                            16  

                                                                                                                                                               

'continuous and systematic' as to render them essentially at home in the forum State." 



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
  


----------------------- Page 8-----------------------

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 1987weaddressed generalpersonaljurisdictionin Glover v. Western Air  

                                                                                                                                                                  

Lines, Inc.20  Glover,which predatedtheSupremeCourt'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. R                                        EV. 721, 735 (1988)).       



             19           Id.  at   137-38.  



             20           745  P.2d   1365  (Alaska   1987).  



             21           Id.  at  1366.  

                                      



                                                                                 -8-                                                                          7294
  


----------------------- Page 9-----------------------

day-to-day operations of the franchisees, and receive[d] substantial income from its                                                                  



                                                     22  

licensing activities in Alaska."                                                                                                           

                                                         Consideringthesefacts inlight ofthen-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  

                                              23   After Glover was decided, the Supreme Court clarified the  

                                                                                                                                                     

therefore was appropriate. 



                                                                     24  

law of general jurisdiction in Daimler .                                   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,thewebsite'sformfor submitting shippinginformationincluded adrop-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                                

                                          466 U.S. 408 (1984)).       

Colombia, S.A. v. Hall                  ,  



            24          571 U.S. at 120-42.  

                                              



            25          See id. at 137.  

                                          



                                                                           -9-                                                                   7294
  


----------------------- Page 10-----------------------

 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                                                                                                                                                            



 shediscoveredthebrochure; and while living in Alaska,                                                                                                               Harper receivedseveral 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                                                                                                                                                               

                                                                                                                                                                     26   But none of these allegations,  

 make Colorado BioLife's "principal place of business."                                                                                                                                                                           



 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.  

                                                                                                                                             



                                         Aforumstatewithout generaljurisdictionmaynonethelessexercisespecific  

                                                                                                                                                                                                                                              



 personal jurisdictionover anonresident defendant ifthe defendant has"certain minimum  

                                                                                                                                                                                                                                        



 contacts with [the forum state] such that the maintenance of the suit does not offend  

                                                                                                                                                                                                                                                



                                                                                                                                                                                      28  

 'traditional  notions  of  fair  play  and  substantial  justice.'  "                                                                                                                        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
  


----------------------- Page 11-----------------------

                 29  

forum."               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  

                                                                                                                                                                   30    "[E]ven  

regardless of the extent of a defendant's unconnected activities in the State."                                                                                           



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
  


----------------------- Page 12-----------------------

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                                                                                             



                                                                        34  

place of business in California.                                                                                                                                                              

                                                                              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,"  



                                                                                                                                                                           35  

                                                                                                                                                                                             

which amounted to conduct "purposefully directed at New Hampshire."                                                                                                               The Court  



                                                                                                                                                                                               

explained that the respondent had "continuously and deliberately exploited the New  



                                                                                                                                                                                              

Hampshire market" and therefore "must reasonably anticipate being haled into court  



                                                                                                                                                         36  

                                                                                                                                                                                                  

there  in  a  libel  action  based  on  the  contents  of  its  magazine."                                                                                        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
  


----------------------- Page 13-----------------------

                                                                                                                                                      38  

court over an allegedly libelous article written and edited in Florida.                                                                                    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                                                                                

                                              39  making them "primary participants in an alleged wrongdoing  

aimed at California,"                                                                                                                                          

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
  


----------------------- Page 14-----------------------

                                                                           44  

test" broadly to other intentional torts.                                       However, "merely asserting that a defendant                         



knew or should have known that his intentional acts would cause harm in the forum state                                                                         

                                                                                45     In  Walden  v.  Fiore,  the  Supreme  Court  

is   not   enough   to   establish   jurisdiction."                                                                                                         



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  

                                                                                                                                                              



                                                                                                                                                                    48  

submitted an allegedly false affidavit to show probable cause for forfeiture of the funds.                                                                               

                                                                                                                                                          



The Nevada resident argued that this amounted to conduct "expressly aimed" at Nevada,  

                                                                                                                                                         

                                                                 49    As the Court explained:  

but the Supreme Court disagreed.                                                                 

                                              



                          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
  


----------------------- Page 15-----------------------

                          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, Harperhasmadeanumber ofspecificallegations regardingBioLife'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 forumstate, 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  


----------------------- Page 16-----------------------

Rather, like in          Walden, BioLife's publication appears to be entirely out-of-state conduct                                      



                                                                                                     52  

that happened to affect a person with connections to Alaska.                                                                                    

                                                                                                         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  

                                 53   and Harper has made no allegation that the brochure was ever  

                                                                                                                                              

website is passive, 



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
  


----------------------- Page 17-----------------------

                               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                                                                                             



                                                               54  

under common ownership.                                                                                                                                                                           

                                                                     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 theplaceof[her]injury,"pointingspecifically 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  


----------------------- Page 18-----------------------

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  

                             55     In Keeton v. Hustler Magazine, Inc., the Supreme Court explained that  

whatsoever."                                                                                                                                                                             



"[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.	            TheSuperiorCourt DidNot 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
  


----------------------- Page 19-----------------------

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-                                                                                

                                                                                                                                                        58  she argues  

 interest in the outcome of this litigation." Citing several Ninth Circuit cases,                                                                                    



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
  


----------------------- Page 20-----------------------

 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
  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC