USCA Eighth Circuit, March 6, 2008
Defendant Jessica Cutler wrote a blog called The Washingtonienne in which she chronicled her sexual relationships with several men in Washington D.C. including the plaintiff. A fictionalized version of the blog was published as a book of the same name by Hyperion Books and was optioned by HBO for a potential television series. The plaintiff filed suit in Arkansas for invasion of privacy and intentional infliction of emotional distress against the author, Hyperion, Disney Publishing Worldwide, HBO and Time Warner. The district court stayed discovery pending its ruling on motions to dismiss by the defendants and then went on to dismiss all the claims against all of the defendants. The Eighth Circuit affirmed in part and reversed in part.
One issue before the court was whether Hyperion had enough contacts with the state of Arkansas for the court to exert personal jurisdiction. The district court held that it did not, based on the small number of sales (50) of the defendant’s book in the state and minimal advertising by Hyperion in the state. The Eighth Circuit disagreed, explaining that a court should look not at the sales of the particular book in Arkansas, but to Hyperion’s general presence in Arkansas. Hyperion claimed it did not directly sell the book in Arkansas and submitted a copy of its distribution agreement with Time Warner Books, but the Eighth Circuit noted that the distribution agreement permitted an inference that Hyperion was aware that its books were sold in Arkansas and that it was involved in the marketing plans and promotion for the books in Arkansas. Although it found that the plaintiff had not yet shown sufficient proof for a prima facie case of general jurisdiction, the appeals court reasoned that the district court should not have dismissed his action without permitting him to take some jurisdictional discovery. Accordingly, the Eighth Circuit reversed the dismissal as to Hyperion and remanded to give the plaintiff a chance to provide proof of Hyperion’s contacts with Arkansas. However, the dismissal of Hyperion’s parent Disney and the stay of discovery as to this entity was affirmed based on the Eighth Circuit’s holding that mere ownership of a subsidiary, without the exercise of dominion and control, is insufficient to justify personal jurisdiction.
Another issue before the court was whether the plaintiff could state a claim for invasion of privacy against HBO, who had done nothing other than acquire an option to develop a television series based on the book. Concluding that the plaintiff’s complaint lacked any factual support for his allegation that he had been injured by an “undeveloped television series,” the Eighth Circuit affirmed the dismissal of the claims against HBO and its parent Time Warner (which was not even mentioned in the body of the complaint). The Eighth Circuit found that “Steinbuch merely speculates that HBO might injure his privacy rights at some time in the future . . . . [But] there would be no basis for injunctive relief against the mere possibility of a future television series” based on the book.