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Steinbuch v. Cutler: CIVIL PROCEEDURE - remand for discovery regarding personal jurisdiction contacts sufficiency

1The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa, sitting by designation.
United States Court of Appeals
No. 07-1509
Robert Steinbuch, *
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Arkansas.
Jessica Cutler; Hyperion Books; Disney *
Publishing Worldwide; Home Box *
Office; Time Warner; *
Defendants - Appellees. *
Submitted: January 14, 2008
Filed: March 6, 2008
Before LOKEN, Chief Judge, MURPHY, Circuit Judge, and JARVEY,1 District
MURPHY, Circuit Judge.
Robert Steinbuch brought this action against Jessica Cutler and several
corporate entities for invasion of privacy and intentional infliction of emotional
distress arising from the publication by Hyperion Books of Cutler's sexually explicit
novel and the potential development of a future television series based on it. The
2The Honorable William R. Wilson, Jr., United States District Judge for the
Eastern District of Arkansas.
3Steinbuch then filed a claim against Cutler in federal bankruptcy court for the
Northern District of New York. His earlier action against Cutler in federal district
court in Washington, D.C. has also been stayed.
4Steinbuch claims in his brief that he has been a resident of Arkansas since June
1, 2005 and provided an employment offer letter from the university as supporting
evidence; his complaint does not allege when he moved to Arkansas. The district
court found that Steinbuch had not yet become a resident by the time the novel was
published in June 2005.
district court2 dismissed Steinbuch's action against Cutler, Hyperion Books, and
Disney Publishing Worldwide for lack of personal jurisdiction and against Home Box
Office and Time Warner for failure to state a claim. Steinbuch appealed, but his
appeal of the dismissal of Cutler was stayed after she filed a bankruptcy petition in
New York.3 We affirm except as to Hyperion Books.
Robert Steinbuch is currently a law professor at the University of Arkansas in
Little Rock. Prior to assuming that position in the summer of 2005,4 he worked in
Washington, D.C. While serving as counsel to then Senator Mike DeWine on the
United States Senate Judiciary Committee, Steinbuch engaged in a sexual relationship
with fellow staff member Jessica Cutler. Unbeknownst to him, Cutler was chronicling
physical encounters with him and five other men in her internet weblog entitled The
Washingtonienne. The weblog, a graphic online diary which achieved particular
notoriety in Washington, D.C. when posted in May 2004, describes intimate details
of Cutler's relationship with Steinbuch and her other lovers. Steinbuch was not
identified by name in the weblog; he was generally referred to by his initials "RS"
although Cutler at least once called him "Rob." She also revealed some personal
information, including his place of employment, religious affiliation, and physical
attributes. ("RS looks just like George Clooney when he takes off his glasses.").
Steinbuch does not dispute that he had a brief liaison with Cutler but denies particular
statements she made in her weblog about some of his alleged sexual preferences and
practices, including spanking and use of handcuffs.
Approximately one year after her weblog posting, Cutler authored a
fictionalized book based on its content. Like the weblog, her novel is entitled The
Washingtonienne and describes a young woman's trysts with numerous men in
Washington, D.C., including a Congressional committee staff lawyer. The novel
concerns fictional characters and does not refer to Steinbuch by name or by his
initials. It was published in June 2005 by Hyperion Books (Hyperion), an imprint of
Buena Vista Books Inc. (Buena Vista), which is a wholly owned subsidiary of Disney
Publishing Worldwide (Disney). The novel was distributed throughout the United
States by Time Warner Book Group, Inc., now Hachette Book Group, USA. Time
Warner Book Group, Inc. was a subsidiary of Time Warner.
Steinbuch filed his complaint in the federal district court for the Eastern District
of Arkansas, alleging invasion of privacy and intentional infliction of emotional
distress -- the tort of outrage -- for the book's graphic description of his sexual
relationship with Cutler. In addition to Cutler, he sued the publisher, its parent
corporation Disney, as well as Home Box Office (HBO) and its parent Time Warner.
HBO has secured an option to develop a television series based on the book.
None of the defendants reside, are incorporated, or have their principal place
of business in Arkansas. Cutler, Hyperion, and Disney argued in the district court that
they lacked the requisite minimum contacts with Arkansas and were therefore entitled
to dismissal pursuant to Fed. R. Civ. Proc. 12(b)(2). Time Warner and HBO filed a
Fed. R. Civ. Proc. 12(b)(6) motion for failure to state a claim upon which relief could
be granted. In response to these motions, Steinbuch petitioned the district court for
a three month extension to file a reply. Defendants asked the court to stay discovery
pending its ruling on their dismissal motions because they wanted to avoid potentially
broad discovery requests and the risk of waiving their jurisdictional claims before
their motions were ruled on. Steinbuch filed a motion opposing a stay of discovery;
the motion made no explicit request to conduct limited discovery tailored to the
specific issue of personal jurisdiction. The district court allowed Steinbuch an
extension of about two months to file his reply, but granted the defense motion to stay
discovery until ruling on the motions.
The district court noted that all the corporate defendants sold their products or
services in Arkansas and analyzed whether it could exercise personal jurisdiction over
them under either specific or general personal jurisdiction. It found that The
Washingtonienne and other books published by Hyperion were being sold in Arkansas
bookstores. There was no evidence that Hyperion had mounted a large advertising
campaign, and the court observed that only about fifty copies had been sold to
wholesale and retail accounts in Arkansas. The district court concluded that the
exercise of personal jurisdiction over Hyperion would be unwarranted because its
contacts with Arkansas were too attenuated and the injury to Steinbuch did not occur
as a result of its activities directed at the forum state, especially since Steinbuch had
moved to Arkansas only after publication of the novel.
The action against Disney was also dismissed for lack of personal jurisdiction
because it is a separate corporate entity from Hyperion and played no role in
publishing the novel. Since Steinbuch had failed to rebut Disney's affidavits that it
had no direct involvement in the novel's publication, the district court concluded that
he had not made a prima facie case that Disney had engaged in conduct causing his
injury or that it maintained the requisite contacts with Arkansas to be subject to
personal jurisdiction.
In concluding that no personal jurisdiction could be exercised over defendants,
the district court noted Arkansas' relatively small interest in the dispute since the
claims did not arise in the state and the alleged injuries occurred prior to Steinbuch's
move to Arkansas. The court also suggested that the District of Columbia, where the
novel's events took place and where potential witnesses resided, would serve as a
more appropriate forum.
The district court also granted the dismissal motions of HBO and its corporate
parent Time Warner for failure to state a claim for relief under Arkansas law,
concluding that the complaint offered no indication that they had invaded Steinbuch's
privacy, committed outrage, or had breached a duty toward him.
On appeal Steinbuch asks us to reverse the district court's dismissal of his
claims against Hyperion and Disney for lack of personal jurisdiction and against HBO
and Time Warner for failure to state a claim. He also appeals the district court's stay
of discovery pending its ruling on the motions to dismiss.
We review a dismissal for lack of personal jurisdiction de novo, and the party
asserting jurisdiction bears the burden of establishing a prima facie case. Johnson v.
Woodcock, 444 F.3d 953, 955 (8th Cir. 2006). To survive a motion to dismiss, the
plaintiff must state sufficient facts in the complaint to support a reasonable inference
that defendants may be subjected to jurisdiction in the forum state. Dever v. Hentzen
Coatings, Inc., 380 F.3d 1070, 1072 (8th Cir. 2004). The Arkansas long arm statute
confers jurisdiction to the fullest constitutional extent, limiting our inquiry to whether
such an exercise of jurisdiction would comport with due process. Id. at 1073; see also
Ark. Code Ann. § 16-4-101(B)(1999).
Due process requires "minimum contacts" between a nonresident defendant and
the forum state, such that the maintenance of the suit does not offend "traditional
notions of fair play and substantial justice." World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 291-92 (1980). The minimum contact inquiry focuses on
whether the defendant purposely availed itself of the privilege of conducting activities
within the forum state and thereby invoked the benefits and protections of its laws.
Hanson v. Denckla, 357 U.S. 235, 253 (1958).
The Supreme Court has recognized two theories for evaluating personal
jurisdiction: general and specific jurisdiction. Helicopteros Nacionales de Colombia,
S.A. v. Hall, 466 U.S. 408, 414-15 (1984). A state may exercise general jurisdiction
if a defendant has carried on in the forum state a continuous and systematic, even if
limited, part of its general business; in such circumstances the alleged injury need not
have any connection with the forum state. Keeton v. Hustler Magazine, Inc., 465 U.S.
770, 779 (1984). The plaintiff must make a prima facie showing, however, that the
defendant's contacts were not "random," "fortuitous," or "attenuated." Id. at 774.
Specific jurisdiction on the other hand is appropriate only if the injury giving rise to
the lawsuit occurred within or had some connection to the forum state, meaning that
the defendant purposely directed its activities at the forum state and the claim arose
out of or relates to those activities. Burger King Corp. v. Rudzewicz, 471 U.S. 462,
472 (1985).
To evaluate the sufficiency of a defendant’s contacts, we consider five factors,
affording the first three primary importance: 1) the nature and quality of the
defendant's contacts with the forum state; 2) the quantity of such contacts; 3) the
relation of the cause of action to the contacts; 4) the interests of the forum state in
providing a forum for its residents; and 5) the convenience of the parties. Burlington
Industries, Inc. v. Maples Industries, Inc., 97 F.3d 1100, 1102 (8th Cir. 1996). The
third factor -- the relation of the cause of action to the contacts -- applies only in the
specific jurisdiction context and is immaterial in a general jurisdictional inquiry. See
Johnson, 444 F.3d at 956.
Hyperion contends that it maintained no contacts with Arkansas which would
justify the exercise of either theory of personal jurisdiction and asserts that no specific
jurisdiction is warranted because this litigation did not result from injuries arising out
of or relating to Hyperion's activities in Arkansas. See Burlington Industries, Inc., 97
F.3d at 1103. Steinbuch responds that specific jurisdiction exists over Hyperion,
suggesting that he suffered harm due to the publisher's activities directed at Arkansas
which resulted in the purchase of Cutler's novel by state residents. To sustain his
argument, Steinbuch would have to show that Hyperion knew that "the brunt of the
injury would be felt by [him] in the State in which [he] lives and works" and
intentionally targeted the forum state. See Calder v. Jones, 465 U.S. 783, 789-90
(1984). This is an unlikely proposition, since the publication of The Washingtonienne
occurred around the same time as Steinbuch's move to Arkansas.
While Steinbuch claims that he became an Arkansas resident just prior to the
publication of the novel and produced an employment offer letter from the University
of Arkansas to begin his position on June 1, 2005, he failed to assert in his first and
amended complaints that he resided in Arkansas at the time and provided no affidavit
to the district court declaring his date of residency in the state. Hyperion refuted
Steinbuch's residency claim by pointing to his failure to allege this fact in his
complaints. Steinbuch's cause of action appears to have no direct connection with the
forum state or to have arisen out of or relate to Hyperion's activities in Arkansas. See
Burger King Corp., 471 U.S. at 472. None of the events described in the novel took
place in Arkansas, and Steinbuch has failed to show that Hyperion's contacts with
Arkansas and the relationship between his cause of action and those contacts are
sufficient to justify the exercise of specific jurisdiction. See Burlington Industries,
Inc., 97 F.3d at 1102.
Hyperion asserts that no general jurisdiction exists because it did not conduct
business in the forum state as defined by Arkansas statute in Ark. Code. Ann § 4-27-
1501 (a foreign corporation may not transact business in Arkansas until it obtains a
certificate of authority from the secretary of state). Hyperion also argues that it is not
responsible for the distribution of its books and that it lacks formalized ties to
Arkansas such as a bank account, a registered agent, a corporate office, or real estate.
See, e.g., Dever, 380 F.3d at 1074 (noting absence of these factors in finding a lack
of general jurisdiction); but see Vandelune v. 4B Elevator Components Unlimited, 148
F.3d 943, 948 (8th Cir. 1998) (absence of these factors, while significant, is not
determinative on question of market presence). Steinbuch counters that Hyperion
purposely availed itself of the protections of the forum state laws by continuously and
deliberately exploiting the Arkansas market. See Keeton, 465 U.S. at 781. In support
of his argument, Steinbuch produced a list of approximately thirty different Hyperion
book titles available in a particular Arkansas bookstore, affidavits by several
individuals who purchased Cutler's novel in Arkansas, and an affidavit declaring that
The Washingtonienne is available at all major bookstores in Arkansas, as well as
through the state's central public library system.
In finding a lack of general jurisdiction, the district court emphasized the
relatively small number of sales of The Washingtonienne in Arkansas and the lack of
a substantial advertising campaign for the book in the state. In a general jurisdiction
inquiry, however, we must look not to the sales of that particular novel but to
Hyperion's general presence in Arkansas. See id. at 779-81 (nonresident magazine
publisher subject to general personal jurisdiction for alleged defamation because it
carried out part of its general business in the forum state and benefitted from the
magazine sales there). The percentage of a company's sales in a given state is
generally not relevant to the general jurisdiction analysis as the focus lies on whether
the contacts are continuous and systematic. See Lakin v. Prudential Securities, Inc.,
348 F.3d 704, 709 (8th Cir. 2003). Since the affidavits by individuals who purchased
The Washingtonienne in Arkansas imply that Hyperion has profited from the sale of
its books in the state, the inquiry centers on whether the publisher's forum contacts are
such that it purposely availed itself of the privilege of conducting business in the state
and should therefore have reasonably anticipated being haled into court. See Johnson,
444 F.3d at 955.
While mere placement of a product into the stream of commerce, without more,
is insufficient to constitute purposeful availment, Dever, 380 F.3d at 1075, we have
recognized a state's exercise of jurisdiction over a seller who delivered its products to
a regional distributor with an expectation that the distributor would penetrate the
forum state. See Vandelune, 148 F.3d at 948. Seeking to demonstrate that it
exercised no influence over the distribution of its books, Hyperion disclosed to the
district court its agreement with distributor Time Warner Book Group, Inc. Although
the agreement granted the distributor the exclusive right and sole responsibility for
distribution of the books throughout the United States and did not explicitly target
specific states or regions, it did provide for written monthly sales reports to the
publisher. The fact that it contracted to receive monthly sales reports, especially if
these reports were to display sales on a state by state basis, would permit an inference
that Hyperion had reasonable expectations and knowledge that its products were going
to be offered in the Arkansas market. See Barone v. Rich Bros. Display Fireworks
Co., 25 F.3d 610, 613 (8th Cir. 1994) (foreign fireworks producer's alleged lack of
knowledge of distribution "defies reason and could aptly be labeled 'willful'"); but see
Guiness Import Co. v. Mark VII Distributors, Inc., 153 F.3d 607, 615 (8th Cir. 1998)
(foreign beer manufacturer whose title over the beer passed to importer in Jamaica and
who exercised no control over selection of distributor in the United States not subject
to jurisdiction in Minnesota).
There is also evidence, as a result of Hyperion's disclosure of the distribution
agreement, that the publisher was actively involved in marketing plans and
promotions of books placed in stores. Hyperion's distribution agreement provides that
"Publisher will consult with Distributor with respect to establishing marketing plans,
sales forecasting, determining appropriate print runs, and planning advertising and
promotional campaigns for the Books, and Publisher will make and notify Distributor
of final decisions." See Sondergard v. Miles Inc., 985 F.2d 1389, 1397 (8th Cir. 1993)
(noting that cold medicine manufacturer did not limit where its products may be
purchased and was therefore subject to general jurisdiction). It thus appears that
Hyperion may have been involved in the promotion and marketing of its books and
might have reasonably expected their distribution in Arkansas.
Although carrying less weight than the nature, quality, and quantity of
Hyperion's contacts with the forum, other relevant factors are the interest of the state
in protecting its residents and the need to ensure that a suit in the forum would not
offend defendant's due process rights. Dever, 380 F.3d at 1074. Although Steinbuch
is a relatively new resident, Arkansas has an interest in protecting his privacy rights
as it is the forum where he would appear to suffer the most direct effects of Hyperion's
activities. Cf. Lakin, 348 F.3d at 713 (state has significant interest in giving insolvent
insurance companies a forum to litigate). The burden of litigation to a corporate
publisher such as Hyperion, which is incorporated in California and derives profits
from the sale of its books across the country, would not appear to be so great as to
require dismissal. See Burger King Corp., 471 U.S. at 473-74 (unfairness could arise
if parties which purposefully derive benefit from interstate activities were allowed to
escape from consequences arising from those activities).
Steinbuch claims that by granting a stay of discovery pending its rulings on the
motions to dismiss his complaint, the district court wrongly deprived him of the
opportunity to support his jurisdictional argument. We employ an abuse of discretion
standard in reviewing a district court's denial of discovery. Lakin, 348 F.3d at 713.
On the basis of the current record which reflects that Steinbuch offered documentary
evidence, and not merely speculations or conclusory allegations, about Hyperion's
contacts with Arkansas, the district court should not have dismissed his action against
Hyperion without permitting him to take some jurisdictional discovery to establish
whether general personal jurisdiction would be justified. See Dever, 380 F.3d at 1074
At this point, however, Steinbuch has not adduced sufficient proof for a prima
facie case of general personal jurisdiction over Hyperion. He has not shown enough
specifics about the quality and quantity of Hyperion's contacts with the state or the
publisher's exploitation of the Arkansas market. We therefore remand Steinbuch's
claim against Hyperion for an opportunity for tailored discovery to elicit whether its
contacts with Arkansas were so continuous and systematic as to warrant general
personal jurisdiction over the publisher.
Appellee Disney asserts that it has no connection to Steinbuch's claim, refuting
a basis for either theory of personal jurisdiction. Challenging Steinbuch's assertion
that it should be responsible for his injuries inflicted by Buena Vista's Hyperion
imprint, Disney argues that it did not contract with Cutler, did not publish the novel,
and was not party to the distribution agreement. Affidavits by Hyperion and Disney
executives stated that while Disney is Buena Vista's parent, they are distinct corporate
entities with separate bank accounts and books and records and Disney does not
control the day to day affairs of Buena Vista. Disney maintained no registered agent,
bank accounts, telephone listings, real estate, or offices in Arkansas at the time
Steinbuch filed suit. Steinbuch contends, however, that Disney engages in continuous
and systematic business activity in Arkansas, pointing to its cable television programs
in the state and the registered agent for process Disney installed in September 2006.
Before a party may obtain personal jurisdiction over a parent company, the
plaintiff must show that the parent dominates and controls the subsidiary; mere
ownership of subsidiary is insufficient to justify personal jurisdiction. Epps v. Stewart
Information Services Corp., 327 F.3d 642, 648-49 (8th Cir. 2003). Whether a
subsidiary is subject to personal jurisdiction in the state has no effect on the
jurisdictional inquiry regarding its parent. Id. at 649 ("A corporation is not doing
business in a state merely by the presence of its wholly owned subsidiary.").
Steinbuch failed to meet his burden of proving jurisdiction by providing any
affidavits, testimony, or documents in response to Disney's affidavit denying control
over Hyperion and challenging personal jurisdiction. See Dever, 380 F.3d at 1073.
Steinbuch merely submitted various newspaper articles which referred to
Hyperion/Disney as publisher of The Washingtonienne. The articles did not establish
that Disney controls Hyperion and therefore did nothing to refute Disney's affidavit.
Steinbuch additionally pointed to the distribution agreement governing the sales and
marketing of the book as a basis for personal jurisdiction, citing to it as evidence that
Disney published the novel under the Hyperion imprint, since the agreement includes
a footnote on the bottom of each page that reads "CFR/Disney
Agreement.12.04.03(v5)." Even a cursory look at the distribution agreement,
however, shows that it was entered into by the distributor Time Warner Book Group,
Inc. and three publishers, not including Disney Publishing Worldwide. The plain
language of the agreement excludes "books published by Publisher's parent company,
The Walt Disney Company, and companies which are owned or controlled by The
Walt Disney Company (other than Publisher)." The distribution agreement thus
cannot serve to establish personal jurisdiction over Disney.
By not furnishing factual evidence in response to Disney's denial of continuous
and systematic contacts in the state, Steinbuch fell short of establishing a prima facie
case of general jurisdiction. Whether some arm of The Walt Disney Company media
empire offers television programming in Arkansas does not determine the propriety
of personal jurisdiction over appellee Disney Publishing Worldwide. The
appointment of an agent for service of process in Arkansas occurred more than one
year after the publication of The Washingtonienne and after Disney's motion to
dismiss, and is but one factor in undertaking the minimum contacts inquiry; it is
insufficient by itself to prove a prima facie case. See Pecoraro v. Sky Ranch For
Boys, Inc., 340 F.3d 558, 562 (8th Cir. 2003) ("Minimum contacts must exist either
at time the cause of action arose, the time the suit is filed, or within a reasonable
period of time immediately prior to the filing of the lawsuit.").
In light of Steinbuch's failure to show that Disney had a connection with the
dispute, we see no justification for the exercise of specific jurisdiction. See Calder,
465 U.S. at 788 (specific jurisdiction inquiry focuses on "the relationship among the
defendant, the forum, and the litigation"). Since Steinbuch offered no credible
evidence that Disney had any involvement in the publication or distribution of the
novel and instead made merely conclusory allegations about Disney's alleged role, the
district court did not err in dismissing his claims for lack of personal jurisdiction.
Finally, the district court did not abuse its discretion by granting a stay of
discovery against Disney because Steinbuch failed to rebut its affidavits denying
corporate control over Hyperion and offered only speculative and conclusory
assertions about Disney's contacts with the forum state. See Dever, 380 F.3d at 1074.
We next address Steinbuch's allegation that he was harmed by HBO's
acquisition of an option to produce a fictional television series based on The
Washingtonienne. The district court granted the motion by HBO and Time Warner
for dismissal under Fed. R. Civ. Proc. 12(b)(6) because it concluded that Steinbuch
had failed properly to plead causes of action in his complaint for invasion of privacy
and outrage.
Applying de novo review to the district court's ruling, we assume as true all
allegations in the complaint which must contain sufficient facts, as opposed to mere
conclusions, in support of the legal requirements of the claim to avoid dismissal.
DuBois v. Ford Motor Credit Co., 276 F.3d 1019, 1022 (8th Cir. 2002). An invasion
of privacy claim in Arkansas incorporates the theories of (1) misappropriating the
plaintiff's name or likeness for the defendant's commercial benefit; (2) intrusion upon
seclusion; (3) public disclosure of private facts; and (4) false light in the public eye.
Milam v. Bank of Cabot, 327 Ark. 256, 937 S.W. 653, 657 (1997). To establish a
claim of outrage, a plaintiff must demonstrate that (1) the defendant intended to inflict
emotional distress or knew or should have known that the emotional distress would
be the likely result of the conduct; (2) the conduct was extreme and outrageous
beyond all possible bounds of decency and intolerable in a civilized community; (3)
the actions of the defendant were the cause of plaintiff's distress; and (4) the emotional
distress sustained by the plaintiff was so severe that no reasonable person could be
5We therefore need not discuss any potential First Amendment issues in respect
to an injunction pertaining to these parties. See Nebraska Press Ass'n v. Stuart, 427
U.S. 539, 559 (1976) (prior restraints on speech and publication are the most serious
and least tolerable infringement on First Amendment rights).
expected to endure it. Calvary Christian School, Inc. v. Huffstuttler, 367 Ark. 117,
238 S.W.3d 58, 68 (2006).
HBO concedes that it has acquired an option to develop a television series
based on Cutler's novel but asserts that it has not published anything whatsoever about
Steinbuch and thus has not invaded his privacy or caused outrage. See Calvary
Christian, 238 S.W.3d at 68 (dismissing claim of outrage since the conduct has not yet
occurred); Restatement 2d Torts § 652A-E (invasion of privacy implies publicity of
private facts of another). Steinbuch's complaint is devoid of any factual support for
his allegation that he has been injured by the yet undeveloped television series.
Steinbuch merely speculates that HBO might injure his privacy rights at some
time in the future, and its parent corporation Time Warner is not even mentioned in
the body of the complaint. See Levy v. Ohl, 477 F.3d 988, 991 (8th Cir. 2007)
(complaint must allege sufficient facts to avoid dismissal). In light of the complaint's
failure to allege a colorable claim against HBO and Time Warner, there would be no
basis for injunctive relief against the mere possibility of a future television series
based on Cutler's novel5 or against Time Warner for its alleged role as the distributor
of The Washingtonienne, an allegation which is nowhere to be found in the complaint.
We also find no abuse of discretion in the district court's refusal to allow discovery
against Time Warner and HBO because Steinbuch's complaint lacked sufficient
allegations to state a claim.
Accordingly, we affirm the judgment of the district court dismissing Disney
World Publishing, Time Warner, and Home Box Office. We reverse the final
judgment entered in favor of Hyperion Books, and remand for further proceedings not
inconsistent with this opinion and for discovery on the issue of whether general
personal jurisdiction exists over Hyperion.


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