978 N.W.2d 334
Neb. Ct. App.2022Background
- Wheelbarger sued Newcomb Diesel (Nebraska), Detroit Diesel ECM, LLC (Michigan), and Mike Rodriguez d/b/a M & C (Michigan) for damage allegedly caused by software installed by Newcomb.
- Rodriguez/Detroit Diesel operated as a Michigan-based “middleman,” maintaining a website that connected mechanics to third-party software designers and earned a $200 commission for locating a developer.
- Rodriguez/Affidavit asserted they did not design, code, deliver, or contract for the software, had no Nebraska presence, and did not target Nebraska customers.
- The Michigan Defendants made a special appearance and moved to dismiss for lack of personal jurisdiction; the district court granted the motion after a hearing on pleadings and affidavits.
- Wheelbarger appealed the dismissal; the appellate court reviewed de novo whether Wheelbarger made a prima facie showing of personal jurisdiction.
- The court applied Nebraska long-arm principles, the Zippo sliding-scale approach to internet contacts, and the Pecoraro factors, and held the Michigan Defendants lacked sufficient minimum contacts with Nebraska for specific or general jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Nebraska has personal jurisdiction over the Michigan Defendants (specific jurisdiction) | Michigan Defendants’ website and facilitation of the software sale created sufficient contacts with Nebraska | Defendants were Michigan-based middlemen with a passive website; they did not design, sell, or deliver the software and did not target Nebraska | No — plaintiff failed to show minimum contacts or purposeful availment; dismissal affirmed |
| Whether Nebraska could exercise general jurisdiction over the Michigan Defendants | (argued or assumed) general jurisdiction could exist due to business contacts | Defendants lacked continuous, systematic business connections in Nebraska | No — defendants did not have continuous and systematic contacts |
| Whether the plaintiff’s claims arise out of defendant’s contacts (nexus requirement) | Claims for negligence/products liability arise from the Michigan Defendants’ role in the transaction | The product relationship and negotiations were between Newcomb and the third‑party developer, not defendants | No nexus — cause of action related to software supplied by third party, not defendants’ limited referral services |
| Applicability of internet/jurisdiction tests (Zippo/Pecoraro) | Website and online contact supported jurisdiction under Zippo sliding scale | Website was passive, did not target Nebraska, and interaction was initiated by Nebraska company | Zippo/Pecoraro analysis supports dismissal — passive site and attenuated contacts insufficient |
Key Cases Cited
- Abdouch v. Lopez, 285 Neb. 718, 829 N.W.2d 662 (Neb. 2013) (adopted Zippo sliding-scale approach for internet contacts and emphasized nexus between contacts and cause of action)
- Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997) (established sliding-scale test for website interactivity and jurisdiction)
- Pecoraro v. Sky Ranch for Boys, Inc., 340 F.3d 558 (8th Cir. 2003) (identified five-factor framework supplementing Zippo: nature, quantity, nexus, forum interest, convenience)
- Miller v. Berman, 289 F. Supp. 2d 1327 (M.D. Fla. 2003) (similar facts; passive informational website and referral activity did not support jurisdiction)
- VKGS v. Planet Bingo, 285 Neb. 599, 828 N.W.2d 168 (Neb. 2013) (Nebraska long-arm and due process standards for minimum contacts)
- Nimmer v. Giga Entertainment Media, 298 Neb. 630, 905 N.W.2d 523 (Neb. 2018) (standards for specific vs. general jurisdiction and appellate review of prima facie showing)
- Applied Underwriters v. E.M. Pizza, 26 Neb. App. 906, 923 N.W.2d 789 (Neb. App. 2019) (recent Nebraska articulation of long-arm and minimum-contacts analysis)
- International Shoe Co. v. Washington, 326 U.S. 310 (U.S. 1945) (foundational minimum contacts due process principle)