completely turned upside down because a glass shower door at a marriott autograph collection hotel in midland italy literally exploded in bud's hand severing a tendon lacerating veins in his hand destroying his career as a pilot and changing forever their social and personal relationships with the court's permission i'll address issues of jurisdiction by consent specific jurisdiction the default judgment and ninety seven marriott international applied for and received a certificate of authority to do business in south carolina that was almost ten years after the south carolina legislature of authority in the state thereby a greek that is amenable to suit in the state and there are several other statutory sections which reaffirm that proposition was that  these official comments are not buried in fine print on research services like lexis nexis they appear immediately after the statutory text under these provisions of south carolina law the point i wanted to address now that the supreme court's decisions in damn near a good year do not control this case or require a different result for several reasons st in both d'amour and goodyear the defendant d'amour the court quoting a good year and referring to the perkins decision stated that quote perkins remains the textbook case of general jurisdiction appropriately exercised over a foreign corporation but it's not in the statute i think it's it's it's not the statutory text but it follows immediately after and was considered an adopted by the legislature supreme court's decision in pennsylvania fire which goes back to one thousand nine hundred and seventeen and has not been overruled and it reaffirmed that even without the statutory language that there is a constitutional basis for jurisdiction based upon consent so sat on the situation is even stronger because we have this official commentary to the statute which expresses a clear intent cases like the florida case that you mentioned was one in which the statute has no  language rd and i want to get now to the rationale of damn we're in the year those cases found unfairness and therefore a due process violation in what the court referred to as grasping and that was subjecting a defendant to jurisdiction of the courts of a say simply based upon the extent of its business conduct in that state when there was no relationship between the controversy and the say and the result of that was that any state could assert this crisping jurisdiction and major corporations would be subject to jurisdiction in every state now the facts of this case the grasping concept and the underlying rationale  that consent jurisdiction back in sin is constitutional even without a statutory language and i call the court's attention to this is a case decided a couple months ago by the kansas district court navistar in international corporation and the court in that case said concluded that the supreme court has not overrule pennsylvania fire and other cases sanctioning sanction consent or registration instance of consent and there are other cases like that that have appellant jurisdiction based upon consent as constitutional and despite them more and goodyear now we don't we don't say that a jurisdiction back and sit doesn't raise constitutional questions it might but on the facts of this case the exercise of jurisdiction would be constitutional because the grasping concept that the supreme court referred to in that case does not apply here south carolina has a legitimate interest in opening its coworkers to citizens of the state with a corporation has applied for a paint authority to do business as state and does business in the state and in addition to that there is no risk of jurisdiction back any courts around the country if the jurisdiction is limited to the resident of the state of the stay as the features were there's no other state that can exercise o s can in two thousand and two don't know the situation of electronic commerce and how specific jurisdiction concepts developed by the supreme court would apply in the electronic commerce field and adopted a three part test to as as we read the decision to apply general specific jurisdiction concepts to the specific situation of electronic commerce and we think the facts of this case clearly show specific jurisdiction under a unless the defendant must direct economic activity in the state now in the ellis case the defendant digital had a passive website it was operating in georgia the case was brought in maryland it had nothing to do with maryland other than the fact that america person could see the website but there was no interaction with with with with america on the website did not allow users to contract with transfer funds to  other wise transact business with digital marriott's website by contrast is having interactive you can obtain information vacations attains special deals purchased marriott sponsored products she south carolina that's correct your honor and i think this is a place where marriott ten attempts to use a general jurisdiction argue but and improperly use it with regard to specific jurisdiction if a company like marriott does business throughout the country and has a website that has drop down menus throughout the country that doesn't subject them to general jurisdiction that's what the supreme court said in daimler goodyear but it does subject them to specific yet there was browsing the web site which led to authorization to universal to book the rooms on bud's behalf and other crew members booked in their names mary rewards given to them and in addition that our complaint is not limited to a contractual complaint against marriott our complaint alleges vicarious liability of married him for the boss goes conduct based upon a variety of theories including in particular a parent agency and control so there's a lot going on here in south carolina that would justify specific jurisdiction the supreme court has said so go back go back tell us again what transpired in when when there is a dismissal of a complaint based on lack of jurisdiction without a hearing being conducted that all inferences drawn from the complaint all reasonable inferences should be drawn and this case i think it's a reasonable inference that active use of the website that that is the classic case in which there should that these fees that we saw were excessive and not causally related to the default judgment we were very careful in our motion for sanctions to identify only conduct that was directly related to the fall judgment the whole concept of sanctions after default judgment has been reopened it's a law it's a less severe sanction than a fall judgment implicit is in that is the concept that the court has jurisdiction to award sanctions what or a procedural well i think the court and in the factors that you look at for good cause one is whether there are less severe sanctions no doubt about the imposition of there is no jurisdiction i'm not no that's not this case and i know it's a hypothetical but if there's no jurisdiction over already how do you side action on what is effectively a procedural disc what if it were a case where the defendant was a foreign corporation they never appear in the case and you try to sanction them i don't think you could do that but here they did appear and they moved to overturn the default judgment i think the court has claimed of jurisdiction over of over them as a result of moving to overturn the fall judge do you agree that they could have taken the risk and just stop here and then challenge subsequent damage award on the basis of lack of jurisdiction here in another jurisdiction for could do that but but if they run the risk there because they look they lose all other possible defenses and they don't have an opportunity for discovery or any of that they do but if they're right in the case is dismissed for lack of your subject matter jurisdiction if they don't appear and no i don't think they would be sanctionable then for not appearing then we wouldn't have any of the costs associated with preparing them for the for the damage hearing hiring expert witnesses and all of that that all flowed from their conduct in moving to overturn the default place so that they didn't go into default and didn't go into didn't deal with a default judgment they knew about something out occurring outside of the court in reno for them not having policies or procedures i see nothing to do with what's going on in the court of what the court can cite for court related i did these well i think the supreme court has said that there is inherent authority to sanction for conda related to the proceeding whether it's well again they have submitted themselves to the jurisdiction for the purpose of overturning that a fall judge they have to do that and it may be the answer that they've appeared they've not voluntarily appear but what's your sufficient because st of all the the court has said that in terms of abuse of discretion if the decision is irrational that is one way in which you can find that there's been abuse of discretion and for the court to say that the fees were excessive implicitly means that there was some reasonable amount of phase and it's irrational to deny fees completely in addition to that the court ignored well established for circuit precedent that sanctions i'd like to start jurisdictional issues and frankly save time for counsel searching as briefs the public comment was nowhere to be found in their voting bridge at page nine of their reply brief right they briefly speak to it therefore it has been waived and i will get into that public comment in a minute as to why when the plot but as to jurisdiction their main arguments are that mary was at home in south carolina and that the domestication statute apply us multiple courts have ruled consistently that they find it very difficult for general jurisdiction to be found over corporate defendant in a form other than their place of incorporation or principal place of business as you've heard mary's home is in maryland the i would say on that commentary without any further explanation perhaps that it's amenable to a service because they now have someone an agent that's why we have domestication statute so that we have someone that can recei supreme court case that speech says onward and certainly in the ratification of the th circuit it's crystal clear you look to the language in such and it must be express and there must be interpretation by the higher state co or at least state at the state court level on whether this statute provides for express or provide for consent they it does not there is nothing in the south carolina station that talks about consent frankly there is nothing in the official comment that talks about consent and by the way when this official comment came out we could serve the course and so you're allowed supreme court nobody's put that up as an option if they have no but if you take a look at the expanse of reading of the official comment there was an amendment to that domestication statute and that amendment focused on when consent was in fact to be conferred and that had to do with tax liability purposes so even after the public comment you haven't amended to the statute where there is it a section of that statute that doesn't can be interpreted to be consent to jurisdiction based upon doing business there for tax liability purposes but again as you mentioned they did not raise it in their brief to begin with and so we believe that argument has been waived getting back to the general jurisdiction argument as in the diner opinion basically rejected what the plaintiffs are now suggesting here which is the general jurisdiction can be found in every state and which company gauges in continuous and systematic is there are in terms of doing business in south carolina and this is just for the purpose of some of the cases that have come down squarely when mary has challenged person elsewhere that where there are six thousand two hundred hotels and system as of two thousand and seventy one point four percent are located in south carolina of which america didn't even own or operate question as the vote whether there was a case that we could look to in the th circuit case of ratliffe this court rejected a similar attempt to use carolina's domestication statute as a basis for subjecting foreign corporations to under the principles of due process that have been raised by this panel requires a firmer foundation than mere compliance with the state's medication statute we've cited to the mitchell furniture case because the supreme circuit decision the language is identical and the court there reviewed it and determined there that there was simply not enough to find that a foreign corporation had consented to the jurisdiction in that court under the same in for those cases however have expressed language in them that confers consent there is no concern expressed language south carolina's domestication statute neither expressly provides nor exclusively on a website this is a website in by the way i heard today but i guess it's at odds a little bit with their brief because in their brief they claim the liability of marriott to the fishes is tied to a contractual relationship they have a little bit shifted now to say well it could also be a vicarious liability through the website for conduct of another entity overseas for their complaint is can't remember for sure the  briefs that you may be right i can't recall that but they clearly have causes of action for express an implied contract and for negligence based on the curious liability so write lead those two things at least they have but they played them through the website if that was the case if you were booking anything online with unless there is something that specifically asked you to enter into a contract which there are on occasions but that is not implicit or implied contract by any means by simply making a reservation on a website  he did not wait a rd party did there was actually no real specific reliance on the website he his copilot is the one that told me he had stayed there before as he stated it was out of david so they decided to stay there for that reason without focusing on and targeting south carolina will not be subject to specific jurisdiction in south carolina to actually want to do interact with a south carolina resident is a sou not from there still has to be the showing that that interaction was that was the cause or related to the cause of the incident at question you would have to they do on their website it sounds like you're saying has to be the calls for more closely related to the accident itself that that's exactly what suppose said and in all cases that have analyzed the interaction of plant south carolina resident off on line there was a there was some weight given to a drop down menu that brought brought up carolina and that next one case that we cited to show that that would be in significant terms of specific jurisdiction to establish specific jurisdiction be a web site plaintiffs must establish that mary targeted its website to south carolina residents and in particular an interactive interactions with plaintive had the website while he was in south parse if there is no personal jurisdiction which was found here in this case by district court and then frankly on motion for a reconsideration was reviewed again for law there cannot be an award of sanctions that mean i no to that because i think you then tread into the rule evidence of other things code of conduct and i would say that the court would probably be a little bit more liberal free to do perhaps something that they found against  that the court found that there was a personal interest in each they found that there was no subject matter jurisdiction so i believe in that case they were able to at least retain based on personal jurisdiction ability to because the personal jurisdiction argument but as to to your question it's really simply did was there on the record anything that we could see that was an abuse of discretion rather than the have you interpret a lesser amount which has never even asked for as a of review whether fifty five or sixty applied and recognised right away that that was what he had to do this was then reviewed by a separate district court judge who went through the entire analysis and did their own independent analysis jurisdiction over certain collateral issues even after b underline action is dismissed for lack of jurisdiction just because a federal court is later found a lack subject matter jurisdiction in particular matter does not give limited litigants a free pass with respect served with the complaint for example oh i don't think just getting served with the complaints amounts to a submission to the jurisdiction court but further conduct does entering into parents which they respond that to that may be but it still seems to us that when the decision to set aside a default judgment when one of the factors that is involved in that is the possibility of