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  



                      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  




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.  



                     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  


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.   



                                            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  



                     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  



 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)).               



                                    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)).  



                                    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)).  



                                     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  



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



 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  



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


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



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  



 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))).                                                   



                                   Bristol-Myers Squibb Co. v. Superior Court , 137 S. Ct. 1773, 1779 (2017).  



                                    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  


                           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,           


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  



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  



'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)).             



                           Id.  at 1780 (emphasis in original) (citing Goodyear, 564 U.S. at 919).  



                           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.").  



                           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).            



                          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                                                                  


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. 


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  



                        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.   



                        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  



 '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  




                                        Int'l Shoe Co. v. Washington , 326 U.S. 310, 316 (1945).  

                                                                                                                             -10-	                                                                                                                    7294

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


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).                        



                             Goodyear, 564 U.S. at 930 n.6, quoted in Bristol-Myers Squibb, 137 S. Ct.  


at 1781.  



                             See Neese v. Lithia Chrysler Jeep of Anchorage, Inc., 210 P.3d 1213, 1217  


(Alaska 2009).  



                             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                                                                                             


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,"  



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  



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  


                               In Calder v. Jones, a California resident brought suit in California state  


                34             465 U.S. 770, 772 (1984).                   



                               Id.  at 772, 774-75.  



                               Id.  at 781.  



                               Id.  at 772, 776.  

                                                                                                -12-                                                                                           7294

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


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-----------------------


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  



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)).                               



                          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.  



                          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                                      


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                                                                                             


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  



                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  


"[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).                    



                            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

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

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights