| Keyword | Case | Docket | Date: Filed / Added | (26752 bytes) (23625 bytes)PUBLISHUNITED STATES COURT OF APPEALSTENTH CIRCUITAPPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE WESTERN DISTRICT OF OKLAHOMA(D.C. No. 97-CV-1620-M)Submitted on the briefs:Emmanuel E. Edem, Thomas A. Wallace of Norman, Edem, McNaughton & Wallace, Oklahoma City,Oklahoma, for Plaintiff-Appellant.James R. Webb of McAfee & Taft, P.C., Oklahoma City, Oklahoma, and Daniel F. Katz, Robert A. VanKirk, John C. Shipley, Jr. of Williams & Connolly, Washington, D.C., for Defendant-Appellee.Before BALDOCK, HENRY, and MURPHY, Circuit Judges.MURPHY, Circuit Judge.Plaintiff-appellant Intercon, Inc., appeals the district court's order dismissing its action against defendantBell Atlantic Internet Solutions, Inc., for lack of personal jurisdiction. Because plaintiff made a prima facieshowing that defendant purposefully directed its conduct at the forum state, and that this conduct causedplaintiff's harm, we reverse the district court's decision and remand the case for further proceedings.(1)Plaintiff, an Oklahoma corporation, operates an Internet access service which provides customers withINTERCON, INC., an Oklahoma corporation,Plaintiff-Appellant,v.BELL ATLANTIC INTERNET SOLUTIONS,INC., a Delaware corporation,Defendant-Appellee.No. 98-6428Page1of598-6428--Intercon Inc. v. Bell Atlantic Internet Solutions Inc.--03/09/20009/13/2007mhtml:file://C:\CMU\LawCourse2007\readings\Jurisdiction\InterconVBellAtlantic.mhtaccess to the World Wide Web and carries their electronic mail (e-mail) messages back and forth. ForInternet routing purposes, plaintiff's domain name is "icon.net."In July 1996, defendant, a Delaware corporation doing business in the northeastern and mid-Atlantic UnitedStates, began offering a dial-up Internet service. Because of certain provisions of the TelecommunicationsAct of 1996, defendant was not permitted to carry telephone transmissions across regional boundaries, butwas required instead to use a global service provider to transmit the e-mail messages and Internet traffic.Defendant offered its subscribers a choice between several global service providers, including a New Jerseycompany called ICon CMT, whose domain name was "iconnet.net." Beginning in July 1996, defendantmistakenly routed its customer's e-mail messages to the wrong domain name, thus using plaintiff's mailserver instead of ICon CMT's server.In late October and early November, plaintiff's mail server experienced a severe slow-down in processingability due to the thousands of mail messages being routed through it by defendant. Plaintiff's supportpersonnel also began receiving e-mail and telephone inquiries from defendant's customers regarding thespeed of their e-mail delivery. After plaintiff's president, Wes Chew, contacted defendant on severaloccasions, defendant began taking steps to correct the problem. Defendant finally terminated its use ofplaintiff's facilities on February 20, 1997, by completely blocking customer access to the mail server.Plaintiff brought this action against defendant in the United States District Court for the Western District ofOklahoma, seeking compensation for defendant's unauthorized use of the mail server and the damagescaused thereby. To establish the existence of personal jurisdiction over defendant, plaintiff's president statedin an affidavit that he began contacting defendant in late October about the unauthorized use of plaintiff'smail server; that he was advised that defendant knew it was routing traffic to plaintiff's server and that e-mail traffic from approximately 12,000 of defendant's subscribers was involved; that on one occasion heidentified himself as one of defendant's subscribers and was given plaintiff's phone number for technicalsupport; that even after contacting defendant about the unauthorized use he was not given a time framewithin which defendant intended to correct the problem; that it was only after he engaged an attorney in lateNovember that defendant agreed to stop giving the incorrect address to its customers by December 31, 1996,and to revise its Internet access program to prevent its subscribers from being routed through plaintiff'sserver by February 20, 1997; and that as a programmer familiar with Internet access and e-mail services, itwas his opinion that defendant could have blocked customer access to the Oklahoma mail serverimmediately upon discovering the problem. See Appellant's App. at 74-78. In response, defendant submittedan affidavit stating that it conducted no business in Oklahoma; that it was not informed of the problem until"late December"; that it took immediate steps to halt the flow of e-mail traffic; and that it finally interruptedits customers' service on February 20, 1997. See id. at 80-84. The district court granted defendant's motionto dismiss, finding defendant's contacts with the forum state of Oklahoma were not purposefully established.See id. at 72-73. This appeal followed.We review the district court's jurisdictional ruling de novo and resolve all factual disputes in favor ofplaintiff. See OMI Holdings, Inc. v. Royal Ins. Co., 149 F.3d 1086, 1091 (10th Cir. 1998). Althoughplaintiff bears the burden of establishing personal jurisdiction over defendant, see id., in the preliminarystages of litigation this burden is "light." Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995).Where, as in the present case, there has been no evidentiary hearing, and the motion to dismiss for lack ofjurisdiction is decided on the basis of affidavits and other written material, the plaintiff need only make aprima facie showing that jurisdiction exists. The allegations in the complaint must be taken as true to theextent they are uncontroverted by the defendant's affidavits. If the parties present conflicting affidavits, allfactual disputes must be resolved in the plaintiff's favor, and the plaintiff's prima facie showing is sufficientnotwithstanding the contrary presentation by the moving party. However, only the well pled facts ofplaintiff's complaint, as distinguished from mere conclusory allegations, must be accepted as true.Page2of598-6428--Intercon Inc. v. Bell Atlantic Internet Solutions Inc.--03/09/20009/13/2007mhtml:file://C:\CMU\LawCourse2007\readings\Jurisdiction\InterconVBellAtlantic.mhtId.(citations and quotations omitted).To obtain personal jurisdiction over a nonresident defendant in a diversity action, a plaintiff must show boththat jurisdiction is
View Full Document
Unlocking...