MacNeil v. Trambert, 2010 WL 2222805 (Ill. App. 2 Dist. June 3, 2010)

Defendant Trambert, a resident of California, listed a Toyota SUV for sale to the highest bidder on eBay in November of 2008. Defendant was later notified that Plaintiff MacNeil, a resident of Illinois, was the winning bidder, and the two made arrangements for payment and delivery. As part of the eBay Terms and Conditions, MacNeil was responsible for pick-up or shipping of the vehicle. In December, Plaintiff’s agent in California inspected the vehicle and accepted title and possession, and delivered Plaintiff’s cashier’s check, which was drawn on an Illinois bank. After personally inspecting the vehicle Plaintiff discovered that there was no satellite radio and no DVD screens in the headdress, as had been indicated in the eBay listing. In February of 2009, Plaintiff filed an Illinois small claims court action for $2,546 and Defendant moved to dismiss for lack of personal jurisdiction. The trial court granted defendant’s motion and the appellate court affirmed.

A plaintiff has the burden of establishing a prima facie case for jurisdiction when seeking jurisdiction over a nonresident defendant. Bolger v. Nautica International, Inc., 269 Ill. App. 3d 947, 949 (2007). Illinois has a long-arm statute that permits jurisdiction over foreign defendants that comports with the due process requirements of the Constitution. To satisfy federal due process, a defendant must have minimum contacts with the forum state such that defending a lawsuit there would not offend “ ‘ “traditional notions of fair play and substantial justice.” ‘ “ Spartan Motors, Inc. v. Lube Power, Inc., 337 Ill. App. 3d 556, 560 (2003), quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 90 L. Ed. 95, 102, 66 S. Ct. 154, 158 (1945), quoting Milliken v. Meyer, 311 U.S. 457, 463, 85 L. Ed. 278. 283, 61 S. Ct. 339, 343 (1940). In deciding the question of jurisdiction a court will determine whether there was purposeful availment of the benefits and protections of the forum state.

Plaintiff’s complaint averred that the had only seen Defendant’s ads for the vehicle on eBay and that was insufficient to establish general jurisdiction. Plaintiff argued, however, that the court had personal jurisdiction over Defendant because, after listing the car on eBay, which is accessible worldwide, Defendant should have anticipated being brought to court in Illinois if the winning bidder was a resident of Illinois. The appellate court rejected this argument and cited the case of Foley v. Yacht Management Group, Inc., No. 08 – -C – - 7254 (N.D. Ill. July 9, 2009), which also dealt with a failed eBay sale. In Foley, the Defendant refused to accept payment from the winning bidder and the Plaintiff brought suit. In determining whether the court had jurisdiction, the court ruled that Defendant had no tied to the forum state other than the fact that the winning bidder lived there. The Foley court held the Defendant, as an eBay seller, had no control over where the buyer of its item would live and therefore there was no purposeful availment.

While Plaintiff argued that the various telephone calls and emails that occurred between the parties was enough to establish minimum contacts, the court disagreed. Plaintiff also sought to establish jurisdiction based on precedent involving the use of “interactive websites.” Not only does Defendant not run the eBay site, nothing in the record indicated that Defendant’s listings or personal eBay pages were interactive enough to trigger jurisdiction. Plaintiff’s final argument for jurisdiction, that Defendant committed tortuous conduct in the forum, was similarly rejected by the appellate court; the so-called “Effects Doctrine” applies only to intentional torts, and not to breach of contract.

Ultimately Defendant’s business contacts with Illinois were nothing more than random and attenuated and therefore the court was unable to assert jurisdiction in this case.

Ruiz v. Gap, Inc. et a., Case Number 09-15971 (9th Cir. April 12, 2010)

Around September of 2007, two laptops were stolen from a Gap office in Chicago, which contained personal information and social security numbers for approximately 750,000 job applicants, including Plaintiff Ruiz who had applied for a job online. Gap sent a letter to the affected individuals 11 days after the breach and offered 12 months of credit monitoring at no cost as well as advice regarding additional precautions to take. Ruiz did not accept Gap’s offer and brought a class action lawsuit against Gap and Vangent, Inc., the company contracted by Gap to process the online applications. The district court granted Gap’s motion to dismiss Ruiz’ claims for negligence, breach of contract, unfair competition, invasion of privacy, and violation of California Civil Code §1798.85 and the appellate court affirmed.

The primary problem with Ruiz’ claims appears to be that his alleged harm from this situation did not rise to the level required under his causes of action and was only sufficient to give him standing.

A claim for negligence in California requires (1) the existence of a duty to exercise due care, (2) breach of that duty, (3) causation, and (4) damages. Both the district court and the court of appeals held that to establish sufficient harm under California law, the damage must not be nominal, speculative, or a mere threat of future harm. Ruiz was unable to establish that his identity had actually been stolen or that he had expended any money on monitoring (or really that the credit monitoring offered by Gap was insufficient to protect him). Monitoring costs may have been sufficient, as they have been in cases dealing with exposure to toxic chemicals, but Ruiz had no such costs.

Similarly, there was no harm required for a claim for breach of contract by Gap’s vendor or unfair competition against Gap. While California has recognized nominal damages for contract actions, damages must still be appreciable and actual rather than Ruiz’ claim for an increased likelihood of damage through identify theft now that his personal information has been exposed.

A plaintiff alleging an invasion of privacy must establish each of the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy. This conduct must be “sufficiently serious in . . . scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right.” Hill v. Nat’l Collegiate Athletics Ass’n, 865 P.2d 655, 657 (Cal. 1994). While there is explicit requirement for intentional conduct, the appellate court noted that no California court has yet extended the application of this claim to a situation involving accidental or negligent conduct such as the case in the present matter.

California Civil Code § 1798.85 provides that a person or entity may not “[r]equire an individual to use his or her social security number to access an Internet Web site, unless a password or unique personal identification number of other authentification device is also required to access the Internet Web site.” Ruiz’ attempt to bring a claim under this section ignores the plain language of the code, which is clearly directed at the act of logging onto a website and not the transmission of information through a website for the purpose of applying for a job.

Agard v. Hill, No. CIV 2-10-cv-0323-GEB-JFM (PS), 2010 U.S. Dist. LEXIS 35014 (E.D. Ca., April 9, 2010).

Plaintiff Cunina Agard is a wedding planner who was hired by Defendants Brett and Jennilee Hill but subsequently fired before the date of the wedding. A year and a half after the wedding, Defendants published statements on multiple websites regarding the Plaintiff and her services, which the Plaintiff contends were false. The statements were headed “Wedding Coordinator Warning.” While few specifics were given, the statements described the alleged process of suing, and collecting a judgment from, the Plaintiff, and made a claim that hiring Plaintiff would cause more problems “than any bride should have to deal with.” Specifically, Plaintiff contends that three (3) statements false statements were made: (1) “Ms. Agard moved multiple times,” (2) “We discovered that she is operating under a new name and location,” and (3) that Defendants had to fire Plaintiff “a couple months before the wedding due to issues that are too numerous and frustrating to go into at this moment.” Plaintiff also claims that Defendants approached various vendors known by Defendants to have business relationships with Plaintiff to discredit her professionally.

Plaintiff alleges that the false statements were made to portray her in a negative light and imply that she was actively trying to avoid service of the lawsuit and that she was trying to hide from her tarnished reputation and conceal her identity in a new location. Plaintiff sought regular damages of $300,000, special damages up to $425,000, and punitive damages to be determined by the court, for defamation and tortuous interference with contract or prospective economic advantage. Defendants also sued the Plaintiff in small claims court and were awarded a judgment of $4,000. Defendants filed a motion to dismiss Plaintiff’s claims.

In support of her claim of defamation, Plaintiff argued that Defendants maliciously published the aforementioned statements in an attempt to interfere with her business and that as a result, she suffered damages, loss of reputation, and was thereafter unable to work as a wedding planner in her county or the surrounding counties. Defendants argued that by way of collateral estoppels, the small claims judgment precluded Plaintiff from bringing such claims and that as statements made to “future brides” and as opinions, the statements were privileged.

The tort of defamation involves (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and that (5) has a natural tendency to injure or that causes special damages. Taus v. Loftus, 40 Cal.4th 683, 804 (Cal. 2007). Defamatory language not libelous on its face is not actionable unless the Plaintiff alleges and proves that he has suffered special damages as a proximate result thereof.” Cal. Civ. Code § 45. Malice or ill will is not an element of defamation. 5 Witkin, Summ. Of Cal. Law Torts § 529 at 782 (10th ed. 2005).

Whether or not a statement was made as an “opinion” is not alone dispositive of a finding of defamation. The question is resolved in a determination of whether a “reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.” Franklin v. Dynamic Details, Inc., 116 Cal. App. 4th 375, 385 (Cal. Ct. App. 2004). In determining actionable fact versus nonactionable opinion, the Ninth Circuit employs a 3-part test: (1) whether the general tenor of the entire work negates the impression that the defendant was asserting an objective fact, (2) whether the defendant used figurative or hyperbolic language that negates the impression, and (3) whether the statement in question is susceptible of being proved true or false. Gardner v. Martino, 563 F.3d 981, 987 (9th Cir. 2009). In essentially all cases1 the truth of the offensive statements is a complete defense against civil liability, regardless of bad faith or malicious purpose. Smith v. Maldonado, 72 Cal. App. 4th 637, 647 (Cal. Ct. App. 1999). The burden of pleading a proving truth is on the defendant.

Cal. Civ. Code § 47 provides that certain privilege exist as a defense to an action for defamation, however, the court refused to grant such a privilege because the Defendants failed to specifically allege which privilege granted by the statute they were afforded. Additionally, their argument that Plaintiff’s claim was barred by collateral estoppels was unpersuasive because the statements made by Defendants did not rely on any of the facts from the small claims action.

To succeed on a claim of intentional interference with prospective business advantage, the plaintiff must prove “(1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant.” Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134, 1153 (Cal. 2003). Additionally, the plaintiff must also plead and prove that the defendant’s conduct was wrongful by some legal measure other than the fact of interference itself. By pleading that the Defendants’ statements were libelous, the court held that the Plaintiff successfully plead the elements for tortuous interference, including the requirement that Defendants’ conduct be wrongful in addition to the interference.

Defendants’ motion to dismiss was denied as to plaintiff’s libel claim for the first two statements and granted on the third, and denied as to plaintiff’s intentional interference claim.