The opinion of the court was delivered by: Wm. R. Wilson, Jr. United States District Judge
Pending are Motions to Dismiss for Lack of Personal Jurisdiction filed by Defendants Jessica Cutler ("Cutler"),*fn1 Disney Publishing Worldwide ("Disney"),*fn2 and Hyperion Books ("Hyperion").*fn3 Also pending are Motions to Dismiss for failure to state a cause of action and for lack of personal jurisdiction filed by Defendants Home Box Office (HBO) and Time Warner ("Warner").*fn4 Warner also alleges that the complaint should be dismissed because it is not liable for the actions of HBO. Plaintiff, Robert Steinbuch ("Steinbuch"), responded to all Motions.*fn5
Cutler*fn6 and Hyperion*fn7 filed Replies to Steinbuch's Response. Steinbuch filed a Motion to Strike the Replies.*fn8
This action began when Hyperion published a book entitled The Washingtonienne written by Cutler. Steinbuch sued for invasion of privacy and intentional infliction of emotional distress because the book describes, in graphic detail, a sexual relationship between Steinbuch and Cutler. As part of his invasion of privacy claim, Steinbuch alleges that Defendants misappropriated his likeness, placed him in a false light, and intruded on his seclusion.*fn9
Cutler and Hyperion contend that there is no basis for personal jurisdiction.
Hyperion is an imprint*fn10 of Buena Vista Books, Inc., which is a subsidiary of Defendant Disney. While Disney may be the parent of Buena Vista Books, it alleges that it is a separate and distinct corporation that cannot be held liable for the conduct of its subsidiary. Disney asserts that it does not have sufficient contacts with Arkansas to establish jurisdiction.
Warner is the parent company of HBO. According to HBO and Warner, Steinbuch's complaint makes few factual allegations about either company, and fails to make sufficient allegations to establish personal jurisdiction. HBO and Warner contend that Steinbuch fails to allege facts that are essential to the tort claims of invasion of privacy and intentional infliction of emotional distress.
In response to the motions, Steinbuch argues that Cutler, Hyperion, and Disney agreed to distribute The Washingtonienne in every state, including Arkansas. He also asserts that the book is readily available in Arkansas and attaches five affidavits from Arkansans who purchased the book.*fn11 Steinbuch argues that Arkansans also can buy the book from Cutler's on-line sex-shop, where she has sold her products to at least three Arkansas residents.*fn12 He also produces evidence that Cutler, via the internet, sold an autographed copy of her book in Arkansas.*fn13 With respect to HBO and Time Warner, Steinbuch offers documents that demonstrate extensive business activity in Arkansas by both these corporations.
A. Standard for Motion to Dismiss
To survive a motion to dismiss for lack of personal jurisdiction, a plaintiff must state sufficient facts in the complaint to support a reasonable inference that the defendants are subject to jurisdiction.*fn14 When jurisdiction is denied, the burden shifts to the plaintiff to allege enough facts to establish jurisdiction.*fn15 The plaintiff's prima facie showing of jurisdiction must be supported by the pleadings, and also by the affidavits presented with the pleadings.*fn16 When a defendant attaches affidavits that raise a meritorious challenge to personal jurisdiction, the plaintiff is required to prove jurisdiction by affidavits, testimony or documents.*fn17
In a diversity action, a federal court may assume jurisdiction over nonresident defendants only to the extent permitted by the long-arm statute of the forum state, and by the due process clause of the Fourteenth Amendment.*fn18 In 1995, the Arkansas General Assembly amended the long-arm statute to authorize jurisdiction over foreign corporations to the fullest extent allowed by constitutional due process.*fn19
Due process requires "minimum contacts" between the nonresident defendant and the forum state such that "maintenance of the suit does not offend traditional notions of fair play and substantial justice."*fn20 Under due process, a nonresident defendant's contacts with a forum state must be sufficient to cause the defendant to "reasonably anticipate being haled into court there."*fn21 The Supreme Court has identified two types of personal jurisdiction -- general and specific.
When a cause of action arises out of or is related to a defendant's contacts with the forum state, the exercise of personal jurisdiction is one of specific jurisdiction.*fn22 However, if the exercise of jurisdiction arises in a case that does not stem from the defendant's contacts, the exercise of personal jurisdiction is one of general jurisdiction.*fn23
Where specific personal jurisdiction over a nonresident is asserted, due process is satisfied if the defendant purposely directed its activities at forum residents, and the litigation results from injuries related to those activities.*fn24 When general jurisdiction is in question, a defendant may be subject to the state's exercise of personal jurisdiction if contacts with the state are continuous, systematic, and substantial.*fn25
To determine if there are sufficient contacts establishing general jurisdiction, the Eighth Circuit has outlined five crucial factors: (1) the nature and quality of contacts with the forum state; (2) the quantity of such contacts; (3) the relation of the cause of action to the contacts; (4) the interest of the forum state in providing a forum for its residents; and (5) convenience of the parties.*fn26 The first three factors are of primary importance.*fn27
Jurisdiction over a parent corporation does not automatically establish jurisdiction over a wholly owned subsidiary.*fn28 Each defendant's contacts with the forum ...