Torres v. Thomas, No. 448-8-04 Wncv (Katz, J., Nov. 23, 2005)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted 

from the original. The accuracy of the text and the accompanying data included in 

the Vermont trial court opinion database is not guaranteed.] 

STATE OF VERMONT SUPERIOR COURT 

Washington County, ss.: Docket No.448-8-04 Wncv 

TORRES 

v. 

ED THOMAS AUTOS AND LEASING, INC. 

ENTRY 

 Plaintiff, a Vermont resident, purchased a used pickup truck from 

defendant through the Internet auction web site ebay. Defendant is a 

Florida-based auto dealership. Plaintiff brought suit in this court alleging 

consumer fraud. Defendant has challenged, pursuant to V.R.C.P. 12(b)(2), 

the personal jurisdiction of this court over Defendant. In opposing a 

12(b)(2) motion, the plaintiff need only demonstrate facts which support a 

finding of jurisdiction. Roman Catholic Diocese of Burlington, Inc. v. 

Paton Insulators, Inc., 146 Vt. 294, 296 (1985). 
 

 “Vermont’s long arm statute, 12 V.S.A. § 913(b), confers 

jurisdiction over non-resident defendants to the full extent permitted by the 

Due Process Clause.” Dall v. Kaylor, 163 Vt. 274, 275 (1995). Due 

process requires that nonresident defendants have certain “minium 

contacts” with the forum state such that maintenance of the suit does not 

offend traditional notions of fair play and substantial justice. Id. A key 

consideration of the minimum contacts requirement is whether “‘the 

defendant’s conduct and connection with the forum State are such that [the 

defendant] should reasonably anticipate being haled into court there.’” Id. 

at 276 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 

297 (1980)). 

 

 The ubiquity of the Internet in contemporary American life has 

raised a wealth of novel jurisdictional issues. Most courts hold that state’s 

exercise of jurisdiction is proportionate to the nature and quality of the 

commercial activity conducted over the Internet — a sliding scale 

approach. Metcalf v. Lawson, 802 A.2d 1221, 1225-26 (N.H. 2002). 

Courts have generally held that where a defendant merely establishes a 

passive web site, the mere availability of that web site in a state is 

insufficient to establish personal jurisdiction over defendant. See, e.g., 

Young v. New Haven Advocate, 315 F.3d 256, 263 (4th Cir. 2002). At the 

other end of the spectrum, a defendant entering into contracts with residents 

of a foreign jurisdiction with knowing and repeated transmission of 

computer files is generally held to have subjected itself to personal 

jurisdiction. See Zippo Mfg. Co v. Zippo Dot Com, Inc., 952 F.Supp. 

1119, 1124-26 (W.D.Pa. 1997) (describing the spectrum of Internet 

contacts and finding defendant’s contact sufficient for personal 

jurisdiction). Use of Internet auction sites such as ebay falls somewhere in 

the middle. 
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 In the few available decisions from courts that have considered 

Internet auction site sales specifically, the trend has been to find no 

personal jurisdiction based solely on the sale of goods. These courts have 

noted that the seller had no control over who would ultimately be the 

highest bidder and determined that the seller did not purposefully avail 

himself of the privilege of doing business in the forum state. Winfield 

Collection Ltd. v. McCauley, 105 F.Supp.2d 746, 749 (E.D.Mich. 2000); 

Metcalf, 802 A.2d at 1226. But see Montalvo v. First Interstate Finance 

Corp., 2005 WL 380727, *3 (Me. Super.) (“By conducting business on the 

Internet, [defendant] solicited and reached customers in Maine and set up 

negotiations and sales that resulted in merchandise being shipped to Maine 

and delivered to a Maine resident.”). By contrast, when a contact initiated 

through a web site such as ebay leads to a continuing commercial 

relationship between parties, the seller/defendant may be subject to 

personal jurisdiction plaintiff/buyers’s home state. McGuire v. Lavoie, 

2003 WL 23174753 (N.D.Tex.) (finding that “this was not an isolated 

purchase by an anonymous bidder on an Internet auction site” but rather 

“the parties entered into a series of transactions” and plaintiff’s identity and 

residence was known to defendant). 

 Of significance in this case is that defendant is in the business of 

selling cars via the Internet. This was a distinguishing fact in Dall v. 

Kaylor, 163 Vt. 274 (1995), that led the Court to conclude that an 

advertisement in a nationally circulated publication could render a 

defendant subject to Vermont personal jurisdiction. Id. at 276-77; accord 

Brown v. Cal Dykstra Equip. Co., 169 Vt. 636 (1999) (mem.). Unlike 

Carothers v. Vogeler, 148 Vt. 316 (1987), in which an individual who 

advertised sale of his restored auto by placement of a single advertisement 

in a national publication was not subject to jurisdiction, the Dall defendants 
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regularly advertised and held themselves out as dealers in the trade. 163 

Vt. at 276-77. Defendant’s use of ebay is analogous to nationally circulated 

advertising. The fact that Defendant is in the business of regularly 

advertising and selling autos through ebay renders Dall the controlling 

precedent. Even the Metcalf court, while finding no personal jurisdiction 

for an individual defendant who sold goods on ebay, commented that 

evidence that defendant was a commercial seller could have affected the 

outcome of that decision. 802 A.2d at 1227. Plaintiff has provided 

sufficient evidence that assertion of personal jurisdiction over Defendant 

will not offend traditional notions of fair play and substantial justice. 

 A final factor which we deem significant is that the purchase here 

was of a motor vehicle. Hence, it is both a more substantial item, it is 

registered with the authorities in the purchaser’s state, and its envisioned 

presence on the roads implicates factors of safety and public interest. 

Hence, although we might be inclined to come to a different ruling were the 

item a vase or a camera, we find the item sold also supports the exercise 

jurisdiction. Again, the seller should reasonably have envisioned that he 

might become subject to the courts in the buyer’s home state. 

 Accordingly, Defendant’s motion to dismiss for lack of personal 

jurisdiction is DENIED. 

 Dated this ___ day of November, 2005. 

__________________________ 
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Presiding Judge