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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

JAHMEL BINION, 

 Plaintiff, 

v. Case No. 14-13454 

 HON. AVERN COHN 

SHAQUILLE O’NEAL; ALFONSO 

CLARK “TREY” BURKE, III; and 

JUAQUIN MALPHURS a/k/a WAKA 

FLOCKA FLAME, 

 Defendants. 

______________________________________/ 

ORDER GRANTING SHAQUILLE O’NEAL’S MOTION TO DISMISS (Doc. 15) 

I. INTRODUCTION

 This is an invasion of privacy case. Jahmel Binion (Plaintiff) is suing Shaquille 

O’Neal (O’Neal), Alfonso Clark “Trey” Burke (Burke), and Juaquin Malphurs (Malphurs) 

(collectively, Defendants) claiming that Defendants posted mocking and ridiculing 

photographs of him on social media websites. The Complaint is in four counts: 

COUNT I: Invasion of Privacy 

COUNT II: Intentional Infliction of Emotional Distress 

COUNT III: Defamation 

COUNT IV: General Negligence 

 Now before the Court is O’Neal’s Motion to Dismiss. (Doc. 15) In moving to 

dismiss under Rule 12(b)(2), O’Neal says that he is not subject to personal jurisdiction 

in Michigan by merely posting images of Plaintiff on his Instagram and Twitter accounts. 

For the following reasons, O’Neal’s motion is GRANTED. 

II. BACKGROUND 

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A. 

 Instagram is a social media website that describes itself as a “fun and quirky way 

to share your life with friends through a series of pictures.” (FAQ, INSTAGRAM.COM, 

https://instagram.com/about/faq/ (last visited Mar. 5, 2015)) Every Instagram user is 

advised that “[a]ll photos are public by default which means they are visible to anyone 

using Instagram or on the instagram.com website.” (Id.) However, Instagram allows 

users to “make [their] account private” such that “only people who follow [the user] on 

Instagram will be able to see [their] photos.” (Id.) If the Instagram user fails to make 

his/her account private, “anyone can subscribe to follow [their] photos.” (Id.) 

 Instagram’s privacy policy states that “[b]y using our Service you understand and 

agree that we are providing a platform for you to post content, including photos, 

comments and other materials (“User Content”), to the Service and to share User 

Content publicly. This means that other Users may search for, see, use, or share any of 

your User Content that you make publicly available through the Service.” (Privacy 

Policy, INSTAGRAM.COM, https://instagram.com/about/legal/privacy/ (last visited Mar. 5, 

2015)) The privacy policy further states, “[a]ny information or content that you 

voluntarily disclose for posting to the Service, such as User Content, becomes available 

to the public, as controlled by any applicable privacy settings that you set. . . . Once you 

have shared User Content or made it public, that User Content may be re-shared by 

others.” (Id.) 

 Like Instagram, Twitter is a social media website that allows users to post 

“Tweets,” which are described as “an expression of a moment or idea. It can contain 

text, photos, and videos. Millions of Tweets are shared in real time, every day.” (The 

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Story of a Tweet: What Is a Tweet, TWITTER.COM, https://about.twitter.com/what-istwitter/story-of-a-tweet (last visited March 12, 2015)). As with Instagram, Twitter allows 

users to “share photos, in real time, with everyone or with the people [they] choose.” 

(So Much More than Words, TWITTER.COM, https://about.twitter.com/products/photosharing (last visited March 12, 2015)). Twitter users can also “follow” other users, so 

that others’ Tweets will appear in the user’s Twitter feed. Finally, Twitter allows users to 

re-post or “Retweet” content from other users’ Twitter feeds to be shared with their own 

followers. (The Story of a Tweet: What Is a Tweet, TWITTER.COM, 

https://about.twitter.com/what-is-twitter/story-of-a-tweet (last visited March 12, 2015)). 

B. 

 Because the Court is responding to O’Neal’s Motion to Dismiss, the facts alleged 

in the Complaint (Doc. 1-1) are accepted as true and are summarized below. 

 Plaintiff is an individual who resides in Macomb County, Michigan. Plaintiff 

suffers from a rare genetic condition called ectodermal dysplasia, which causes 

cosmetic abnormalities in the hair, nails, sweat glands, and teeth. O’Neal is a former 

professional basketball player residing in Florida and Massachusetts. 

 In April of 2014, when Plaintiff was approximately 23 years old, Plaintiff posted a 

number of photographs of himself on his public Instagram account. O’Neal obtained a 

photograph of Plaintiff and posted it on his Instagram and Twitter accounts, side-by-side 

with a photograph of O’Neal mockingly contorting his face to look like Plaintiff’s. O’Neal 

has an estimated half-million Instagram followers and 8.46 million Twitter followers. 

III. STANDARD OF REVIEW 

 A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2) tests 

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the court’s personal jurisdiction over the defendant. The plaintiff bears the burden of 

establishing that personal jurisdiction exists. Neogen Corp. v. Neo Gen Screening, Inc., 

282 F.3d 883, 887 (6th Cir. 2002). The Sixth Circuit has clearly outlined the procedure 

for determining personal jurisdiction in Fed. R. Civ. P. 12(b)(2) challenges. Dean v. 

Motel 6 Operating, L.P., 134 F.3d 1269, 1271-72 (6th Cir. 1998). When considering a 

motion under Rule 12(b)(2), a court has three choices: (1) rule on the motion based on 

the affidavits submitted by the parties, (2) permit discovery in aid of the motion, or (3) 

conduct an evidentiary hearing on the merits of the motion. See Dean, 134 F.3d at 

1272. When a court rules on a 12(b)(2) motion to dismiss without an evidentiary 

hearing, the complaint and affidavits are considered in a light most favorable to the 

plaintiff. Id. 

IV. DISCUSSION 

 O’Neal says that the Complaint must be dismissed because the Court cannot 

assert personal jurisdiction over him. 

 “A federal court’s exercise of personal jurisdiction in a diversity of citizenship 

case must be both (1) authorized by the law of the state in which it sits, and (2) in 

accordance with the Due Process Clause of the Fourteenth Amendment.” Neogen 

Corp., 282 F.3d at 888 (citation omitted). In this case, Plaintiff is not invoking general 

jurisdiction under Michigan’s general jurisdiction statute, M.C.L. § 600.711, but limited 

jurisdiction under Michigan’s “Long Arm” statute, M.C.L. § 600.705. Michigan’s limited 

jurisdiction provisions permit the exercise of jurisdiction to the extent limited by due 

process requirements; thus, “[w]here the state long-arm statute extends to the limits of 

the due process clause, the two inquiries are merged and the court need only determine 

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whether exercising personal jurisdiction violates constitutional due process.” Bridgeport 

Music, Inc. v. Still N the Water Pub., 327 F.3d 472, 477 (6th Cir. 2003). 

 The court’s jurisdiction comports with due process “when defendant has sufficient 

minimum contacts such that traditional notions of fair play and substantial justice are not 

offended.” Intera Corp. v. Henderson, 428 F.3d 605, 615 (6th Cir. 2005). The Sixth 

Circuit uses a three-part test in determining whether, consistent with due process, a 

court may exercise limited personal jurisdiction: (1) the defendant must purposefully 

avail himself of the privilege of acting in the forum state or causing a consequence to 

occur there; (2) the cause of action must arise from the defendant’s activities in the 

forum state; and (3) the defendant’s acts or the consequences caused by the defendant 

must have a substantial enough connection with the forum state to make the exercise of 

jurisdiction over him reasonable. So. Machine Co. v. Mohasco Industries, Inc., 401 F.2d 

374, 381 (6th Cir. 1968). There is an inference that the exercise of jurisdiction is 

reasonable where the first two elements have been satisfied. CompuServe, Inc. v. 

Patterson, 89 F.3d 1257, 1268 (6th Cir. 1996). 

 To establish purposeful availment, the defendant must perform some act 

whereby the defendant purposefully avails himself of the privilege of doing business in 

the forum state. Burger King v. Rudzewicz, 471 U.S. 462, 475 (1985). There must be a 

substantial connection between the defendant’s conduct and the state such that the 

defendant “should reasonably anticipate being hauled into court there.” Id. at 474. As 

the Supreme Court recently stated, “[t]he principal inquiry in cases of this sort is whether 

the defendant’s activities manifest an intention to submit to the power of a sovereign.” 

J. McIntyre Mach., Ltd. v. Nicastro, 131 S. Ct. 2780, 2783 (2011). 

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 In a tort case related to defamatory content posted on an internet website, courts 

in the Sixth Circuit have used two different tests to determine if purposeful availment 

has been established. First, the “Zippo test” considers how interactive the website is 

with the people in the forum state. See Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. 

Supp. 1119, 1124 (W.D. Pa. 1997). Second, the “Calder test” considers whether the 

“effects” of the defendant’s intentional tortious conduct, which the defendant could 

expect to be felt in the forum state, was sufficient for the forum’s courts to exercise 

jurisdiction over him. Lifestyle Lift Holding Co. v. Prendiville, 768 F. Supp. 2d 929, 937 

(E.D. Mich. 2011). 

A. The Zippo Test 

 Under the Zippo test, “[a] defendant purposefully avails itself of the privilege of 

acting in a state through its website if the website is interactive to a degree that reveals 

specifically intended interaction with residents of the state.” Neogen Corp., 282 F.3d at 

890. 

On one end of the spectrum are situations where a defendant clearly does 

business over the internet (i.e., enters into contracts with residents of 

forum state that involve the knowing and repeated transmission of 

computer files over internet). Under these circumstances, jurisdiction is 

proper. At the other end of the spectrum are those situations where the 

defendant simply posted information on a web site that is accessible to 

users in the forum state. However, such passive web sites are not 

grounds for jurisdiction. In the middle are those web sites that permit a 

user to exchange information with the host computer. In these situations, 

a court must consider the level of interactivity and the commercial nature 

of the information exchange. 

Hyperbaric Options, LLC v. Oxy-Health, LLC, No. 12-12020, 2013 WL 5449959, at *5 

(E.D. Mich. Sept. 30, 2013) (citing Zippo, 952 F. Supp. at 1124). 

 Courts in this Circuit have held that social media websites “do not lend 

themselves” to the Zippo test because the defendants do not own or operate the 

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websites, but is merely a visitor or an account holder; in addition, the websites are 

generally not used primarily to conduct business. See, e.g., Hyperbaric Options, 2013 

WL 5449959, at *6. Other courts have applied the Zippo test to social media websites 

and held that personal jurisdiction is not established by merely posting content on 

websites such as Facebook: although “slightly more interactive” because of the ability to 

“like,” share, or comment on postings, the site “lack[s] a commercial nature, and 

additional interactivity [is] absent.” Thomas v. Barrett, No. 1:12-CV-00074, 2012 WL 

2952188, at *4 (W.D. Mich. July 19, 2012). 

 A similar result is necessary here. Although highly offensive, O’Neal’s posts on 

Instagram and Twitter were little more than the posting of information on social media 

websites, which became accessible to users in Michigan and elsewhere. The websites 

are not owned or operated by O’Neal, were minimally interactive, and the postings were 

not intended to conduct business. 

B. The Calder “Effects” Test 

 Under the Calder “effects” test, a plaintiff must establish “(1) the defendant 

intentionally committed a tortious action which was expressly aimed for dissemination in 

the forum state, and (2) the brunt of the effects of the actions are felt within the forum 

state.” Hyperbaric Options, 2013 WL 5449959, at *6 (citing Lifestyle Lift Holding Co., 

768 F. Supp. 2d at 937). However, “injury to a forum resident is not enough, and the 

Calder test has not been read to authorize personal jurisdiction in a plaintiff’s home 

forum in the absence of ‘something more’ to demonstrate that the defendant directed 

this activity toward the forum state.” Id. at *7 (citing Weather Underground, Inc. v. 

Navigation Catalyst Sys., Inc., 688 F.Supp.2d 693, 700 (E.D. Mich. 2009)). 

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 Here, Plaintiff cannot establish that O’Neal’s posts were “expressly aimed for 

dissemination” in Michigan. Nor is there any allegation that O’Neal took affirmative 

steps to direct the posts to a Michigan audience. Instead, O’Neal’s posts were meant 

for a national or even international audience. Here, the only connection to Michigan is 

Plaintiff’s injury. This, without “something more” is insufficient to establish personal 

jurisdiction over O’Neal under the “effects” test. 

C. Plaintiff’s Arguments in Opposition 

 In response, Plaintiff says that O’Neal has several business contacts in Michigan 

that render him subject to personal jurisdiction in the state. Plaintiff says that O’Neal 

has organized comedy performances at local theaters, owns restaurant franchises and 

other business interests in Michigan, and endorses or has endorsed many products that 

are distributed in Michigan. Plaintiff also says that O’Neal’s posts were part of his multimedia campaign to promote his own brand image. Plaintiff suggests that such 

questions should survive O’Neal’s motion to dismiss and proceed to jurisdiction-related 

discovery. 

 These arguments are unavailing. Although O’Neal may have several business 

connections to Michigan, Plaintiff cannot show that his cause of action arises from 

O’Neal’s activities here. Plaintiff was not injured by O’Neal’s business dealings in the 

state, and Plaintiff’s cause of action is independent of any such business connection. 

 Therefore, Plaintiff has not established a sufficient factual basis to support the 

exercise of personal jurisdiction over O’Neal. 

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V. CONCLUSION 

 For the above reasons, O’Neal’s Motion to Dismiss has been granted. Plaintiff’s 

case against O’Neal is therefore DISMISSED.1

 SO ORDERED. 

 s/Avern Cohn 

 UNITED STATES DISTRICT JUDGE 

DATED: April 2, 2015 

I hereby certify that a copy of the foregoing document was mailed to the attorneys of 

record on this date, April 2, 2015, by electronic and/or ordinary mail. 

 

 s/Sakne Chami 

 Case Manager, (313) 234-5160 

 

1 The Court dismissed the claims against Burke in a separate order. However, 

Plaintiff’s claims against Malphurs are still pending. Because Malphurs failed to plead 

or otherwise defend, the Clerk of the Court filed an Entry of Default on January 7, 2015. 

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