A billboard in Atlantic City, New Jersey has recently garnered national attention. The billboard for “Moonshine Follies”, a show running at the Resorts Casino Hotel (“Resorts”) from February 20th to April 17th, pictures a woman’s bare bottom as part of the advertisement. NJ Transit owns the land on which the billboard is situated and received several complaints about the explicit nature of the advertisement.
NJ Transit informed Resorts that it wanted it to take down the billboard. Resorts then filed a lawsuit seeking an injunction to keep the billboard up. Judge Nelson C. Johnson of the Superior Court of New Jersey, Atlantic County, preliminarily ruled that the billboard would stay up until he could convene a March 10th hearing to determine its fate.
© 2011 Nissenbaum Law Group, LLC
On August 16, 2010, the Federal District Court of the District of New Jersey upheld the prevailing view of personal jurisdiction as it relates to internet advertisements. The Court in Morilla v. Laser Spine Institute, LLC, 2010 WL 3258312 (D.N.J.) stated that “[a] website that has only information and a generic contact information input form falls at the passive end of the Zippo scale. Id. at 5. The Court held defendant’s website to be passive and declined to exercise jurisdiction over defendant. In the analysis of the operation of the defendant’s website, The Court stated:
“In the past fifteen years, the increasing popularity of the internet has led courts to examine a defendant’s internet activity as a potential basis for jurisdiction, but the Supreme Court has not yet spoken on this subject. Zippo Manufacturing Company v. Zippo Dot Com, 952 F.Supp. 1119 (W.D.Pa.1997), a seminal case endorsed by the Third Circuit, considered whether a defendant’s operation of a website could satisfy a federal court’s exercise of personal jurisdiction over that defendant. The Zippo court created a “sliding scale”, whereby the quality of contacts between a web host and a forum is evaluated by examining the website’s nature and functions. At one end of the scale are those web hosts who actively solicit business over the internet by using their websites to enter contracts or exchange data files. If they engage in such activity knowing that their would-be customers are in another forum, jurisdiction over the web hosts in that forum is proper. On the other end of the scale are passive hosts with purely informational websites that allow no interaction through the site-these websites do not themselves create sufficient contacts between the web host and other forums to justify an extra-territorial court’s exercise of jurisdiction. In the middle are websites that allow the visitor to ex-change information with the host, but do not affirmatively seek business from other states. For such sites, jurisdiction must be determined on a case-by-case basis by looking at just how “interactive” and commercial in nature the exchange of information through the website is.”
“When a website is passive or falls in the middle of the Zippo sliding scale, plaintiffs may have to prove “something more” to justify the exercise of personal jurisdiction-that is, plaintiffs must show that the defendant purposefully (albeit electronically) directed his activity in a substantial way to the forum state. The “something more” can include evidence of non-internet contacts, such as ongoing communications with customers in the state, business trips to the state, advertisements in local publications, and business records of sales in the state.”
The Court granted defendant’s motion to dismiss plaintiffs’ complaint because the plaintiffs failed to allege sufficient facts to show that defendant’s website was interactive. Thus, the Court refused to exercise personal jurisdiction over defendant.
© 2009 Nissenbaum Law Group, LLC