Calder and World-Wide and Shoe, Oh My!
If, like me, you are teaching the jurisdictional portion of Civil Procedure this semester, and if, like me, your students are eager for cases that relate to the age of the internet (for me, the second most popular request after “more hypotheticals”), here’s some candy for you: Dudnikov v. Chalk & Vermilion Fine Arts. In a clearly-written opinion, the 10th Circuit applies all of our old friends, from International Shoe to World-Wide Volkswagen, from Burger King to Calder (even a mention of Keeton!) to an eBay dispute.
So here’s what happens: Ms. Dudnikov and her husband run a “small and unincorporated” business selling fabric on eBay from their home in Colorado; their Colorado location is clear from their eBay auction page. One type of fabric uses a design by Erte, a 20th century artist, but replaces the elegant character in the design with Betty Boop and her dog, Pudgy. Chalk & Vermilion (a Delaware corporation with its principal place of business in Connecticut) is the American agent of a British corporation that owns the copyright to Erte’s works. Chalk decides that this fabric infringes their copyright, and instead of playing nice and sending Dudnikov a cease and desist letter, it files a “notice of claimed infringement” or NOCI with eBay (in California), which terminates the fabric auction and puts a “black mark” on Dudnikov’s eBay record (which until now has enjoyed a 99.9% satisfaction rating). Dudnikov offers to remove the offending fabric if Chalk pulls the NOCI; Chalk refuses and notifies Dudnikov that it plans to file suit in federal court with in 10 days to prevent the fabric auction from being reinstated. Not so fast — in the meantime, Dudnikov and her husband file suit against Chalk and its British counterpart in Colorado federal court, seeking a declaratory judgment and an injunction against interference with future fabric sales. You can see where this is all going — defendants enter a special appearance and move to dismiss for lack of personal jurisdiction. And that’s where the fun begins! Plenty of good times to go around.