Jerry Wilkerson v. RSL Funding, L.L.C.
388 S.W.3d 668
Tex. App.2011Background
- Jerry Wilkerson, a California resident, posted negative online reviews about Texas-based RSL Funding after disputes involving his daughter’s lottery payout.
- RSL Funding, L.L.C. sued Wilkerson in Texas for defamation, libel, and business disparagement based on Wilkerson’s third-party internet postings.
- Wilkerson asserted a special appearance to contest Texas jurisdiction, supported by his affidavit of nonresidency and lack of Texas property or business ties.
- RSL countered that Wilkerson’s postings on Yahoo! and Yelp targeted Texas, using location-based features to reach a Houston audience, thereby establishing minimum contacts.
- The trial court denied Wilkerson’s special appearance; on appeal, the court reversed and dismissed for lack of personal jurisdiction, concluding Wilkerson’s internet activity did not amount to purposeful availment toward Texas.
- The majority held that the sliding-scale analysis for internet activity does not automatically apply to an individual user and that the evidence failed to show Wilkerson targeted Texas; the court rendered dismissal without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Wilkerson’s online postings establish minimum contacts with Texas? | RSL argues postings targeted Texas via location-based sites. | Wilkerson contends postings were not directed at Texas and were not targeted. | No, insufficient targeting to Texas to establish jurisdiction. |
| Should the sliding-scale (Zippo) approach apply to an individual user of interactive websites? | RSL relies on interactive-site analysis to impute contacts. | The majority should not apply sliding-scale to individual users. | No, apply purposeful-availment standard rather than sliding-scale for individuals. |
| Did Wilkerson’s postings have effects in Texas that justify jurisdiction? | RSL asserts Texas effects from Wilkerson’s comments. | Effects alone are insufficient without purposeful contacts. | No, effects in Texas do not suffice without purposeful directed activity. |
Key Cases Cited
- Burger King Corp. v. Rudzewicz, 471 U.S. 462 (U.S. 1985) (due process requires purposeful availment and fair play in forum state)
- BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789 (Tex. 2002) (minimum contacts and due-process limits in Texas )
- Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777 (Tex. 2005) (minimum contacts; focus on defendant’s connections, not unilateral acts of others)
- Calder v. Jones, 465 U.S. 783 (U.S. 1984) (intentional torts; effects test for jurisdiction based on publication in forum state)
- Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997) (sliding-scale analysis for website interactivity; middle ground for interactive sites)
- Revell v. Lidov, 317 F.3d 467 (5th Cir. 2002) (defamation; forum-state targeting and audience considerations in internet cases)
- Gillrie Inst., Inc. v. Universal Computer Consulting, Ltd., 183 S.W.3d 755 (Tex. App.—Houston 1st Dist. 2005) (application of Calder/Keeton to Texas-defendant defamation via national distribution)