Eugene Spuglio v. CABARET LOUNGE On Appeal from the United States District Court for the Eastern…

BLD-245 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-2195
___________
EUGENE SPUGLIO,
Appellant
v.
CABARET LOUNGE
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 09-cv-00564)
District Judge: Honorable John P. Fullam
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
July 16, 2009
Before: MCKEE, FISHER and CHAGARES, Circuit Judges
(Opinion filed: September 14, 2009)
_________
OPINION
_________
PER CURIAM
Eugene Spuglio appeals from an order of the District Court dismissing his pro se
personal injury action. For the reasons that follow, we will summarily affirm.

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Google operates a website that includes, among other things, an Internet search1
engine, which allows users to search for websites, products, and images.
2
Spuglio, a resident of Pennsylvania, alleged that, in November 2008, while a
patron at the Cabaret Lounge in Massachusetts, he was assaulted by four or five members
of the Hells Angels. He further alleged that the Cabaret Lounge employees did nothing to
stop the attack and did not call the police or 911.
Spuglio, proceeding pro se, later filed a diversity action in the United States
District Court for the Eastern District of Pennsylvania seeking damages against Cabaret
Lounge (“Defendant”) for personal injuries. He alleged that the Defendant’s employees
were negligent in their failure to help him during the attack. The Defendant moved for
dismissal for lack of personal jurisdiction or, in the alternative, improper venue. See Fed.
R. Civ. P. 12(b)(2)-(3). The Defendant asserted, among other things, that it did not do
business in or have contacts with Pennsylvania, that it did not own any property in
Pennsylvania, and that it did not advertise in Pennsylvania.
In response, Spuglio argued that jurisdiction in Pennsylvania was proper because
the Defendant advertised throughout the United States via the Internet. In support of his
response, Spuglio submitted a printout of a Google search that showed the address of and1
directions to the Defendant’s business. The Defendant responded by arguing that it had
no control over Google’s website and, even if it did, the website was “passive” for
jurisdictional purposes. See Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119,

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3
1124 (W.D. Pa. 1997); see also Toys “R” Us, Inc. v. Step Two, SA, 318 F.3d 446, 452
(3d Cir. 2003) (applying the Zippo test to a case involving non-resident website
operators).
By order entered March 27, 2009, the District Court granted the Defendant’s
motion to dismiss, and dismissed the complaint without prejudice for lack of personal
jurisdiction. Spuglio filed a motion for a “Non-Pro-Tonk Evidence Hearing,” attempting
to demonstrate that the Defendant operated an “active” website; the District Court denied
the motion. Spuglio then filed a timely notice of appeal, again arguing that the
Defendant’s website, which he claimed it had since taken down, was “active,” thus
making the Defendant amenable to suit in Pennsylvania.
There are two types of personal jurisdiction: general and specific. General
jurisdiction results from, among other things, “systematic and continuous” contact
between a non-resident defendant and the forum state. See Int’l Shoe Co. v. Washington,
326 U.S. 310, 320 (1945). General jurisdiction allows the forum state to exercise
personal jurisdiction over non-resident defendants, even for non-forum-related activities.
Specific jurisdiction allows for the exercise of personal jurisdiction over a non-resident
defendant for actions arising out of the defendant’s contact with the forum. See Mellon
Bank (East) PSFA, Nat’l Assn. v. Farino, 960 F.2d 1217, 1221 (3d Cir. 1992). Spuglio
did not specify which type of jurisdiction that Pennsylvania could properly exercise over
the Defendant. He alleged, however, that the Defendant’s contact with Pennsylvania

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There is also a middle ground between active and passive websites. In the cases that2
fall in the middle, the proper exercise of personal jurisdiction “is determined by
examining the level of interactivity and commercial nature of the exchange of information
that occurs on the Web site.” Zippo, 952 F. Supp. at 1124. Because we agree with the
Defendant that the websites mentioned by Spuglio are passive, the middle category does
not apply in this case.
4
consisted of Internet advertisements. Spuglio’s injuries, which he suffered while
patronizing the Defendant’s Massachusetts business, did not arise out of the Defendant’s
alleged contact with Pennsylvania. Therefore, Spuglio must establish that the Defendant
is subject to general jurisdiction in Pennsylvania.
The likelihood that a state can exercise personal jurisdiction over a non-resident
defendant website owner depends on “the nature and quality of commercial activity that
[the defendant] conducts over the Internet.” Zippo, 952 F. Supp. at 1124; Toys “R” Us,
318 F.3d at 453. We examine that commercial activity to determine where it falls on
what has come to be known as the Zippo sliding scale. On one end of the sliding scale
are defendants who actively do business over the Internet. An example would be one
who “enters into contracts with residents of a foreign jurisdiction that involve the
knowing and repeated transmission of computer files over the Internet.” Zippo, 952 F.
Supp. at 1124. For such “active” defendants, the exercise of personal jurisdiction is
proper. Id. On the other end of the scale are those who merely make information
available on the Internet. Id. The exercise of personal jurisdiction over such “passive”
defendants is improper. Id.2

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5
The ability to use Google to locate the Defendant’s address and directions to its
business does not make the Defendant subject to personal jurisdiction in Pennsylvania.
The Defendant does not have control over Google’s website, and even if it did, the
Google website that allows users to search for information about businesses is passive, as
it does nothing more than provide information about businesses. Google also allows
people to write reviews about the businesses that they have patronized. Potential
customers can read these reviews. Spuglio refers to these reviews as advertisements. We
disagree. The Defendant neither pays for nor controls these reviews. Even if these
reviews are advertisements, “the mere posting of information or advertisements on an
Internet website does not confer nationwide personal jurisdiction.” Remnick v.
Manfredy, 238 F.3d 248, 259 n.3 (3d Cir. 2001). To exercise personal jurisdiction over
the Defendant on the basis of the information found on a Google search would not
“comport with fair play and substantial justice.” Burger King Corp. v. Rudzewicz, 471
U.S. 462, 477 (1985) (internal quotations omitted).
In his argument for appeal, Spuglio also claims that the Defendant took its website
down after he initiated this suit. Since Google is still accessible, we assume that Spuglio
is referring to some other website. Spuglio called this website “active” because it
contained hyperlinks to the website’s administrator’s email address. Spuglio argued that,
because emails sent to the administrator include the sender’s email address, the Defendant
learns that address and can then sell it.

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We find this argument unpersuasive. The hyperlinks that Spuglio mentioned are
the functional equivalent of printing the administrator’s email address on the website.
This amounts to nothing more than making information (i.e., the administrator’s email
address) available on the Internet, and does not amount to using the computer to enter into
contracts with residents of other jurisdictions in the way that the Zippo test envisions for
“active” defendants. By making the email address of its website’s administrator
available, the Defendant did not direct its activities into Pennsylvania. To hale the
Defendant into Pennsylvania to defend this suit would not “comport with fair play and
substantial justice.” Id.
For the foregoing reasons, we conclude that this appeal presents no substantial
question. Accordingly, we will affirm the judgment of the District Court.
6.

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