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

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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 pi ckup truck from defendant through the Internet auction web site eba y. Defendant is a Florida-based auto dealership. Plaintiff brought s uit 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 Defend ant. In opposing a 12(b)(2) motion, the plaintiff need only demonstrat e 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), c onfers

jurisdiction over non-resident defendants to the fu ll extent permitted by the Due Process Clause.” Dall v. Kaylor , 163 Vt. 274, 275 (1995). Due process requires that nonresident defendants have c ertain “minium

contacts” with the forum state such that maintenanc e of the suit does not offend traditional notions of fair play and substan tial justice. Id . A key consideration of the minimum contacts requirement i s whether “‘the

defendant’s conduct and connection with the forum S tate are such that [the defendant] should reasonably anticipate being haled into court there.’” Id

. at 276 (quoting World-Wide Volkswagen Corp. v. Wood son , 444 U.S. 286, 297 (1980)).

The ubiquity of the Internet in contemporary Ameri can life has raised a wealth of novel jurisdictional issues. Mo st courts hold that state’s exercise of jurisdiction is proportionate to the na ture 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 m erely establishes a passive web site, the mere availability of that web site in a state is insufficient to establish personal jurisdiction ove r 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 int o 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 spectr um 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.3

In the few available decisions from courts that ha ve considered Internet auction site sales specifically, the trend has been to find no personal jurisdiction based solely on the sale of g oods. These courts have

noted that the seller had no control over who would ultimately be the highest bidder and determined that the seller did n ot purposefully avail himself of the privilege of doing business in the f orum 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 Inte rstate Finance Corp. , 2005 WL 380727, *3 (Me. Super.) (“By conducting b usiness on the Internet, [defendant] solicited and reached custome rs 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 continui ng 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 auct ion 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 distingu ishing fact in Dall v. Kaylor , 163 Vt. 274 (1995), that led the Court to conclud e that an advertisement in a nationally circulated publicatio n 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 o f a single advertisement in a national publication was not subject to jurisd iction, the Dall defendants4

regularly advertised and held themselves out as dea lers in the trade. 163 Vt. at 276-77. Defendant’s use of ebay is analogou s to nationally circulated advertising. The fact that Defendant is in the bus iness 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 cou ld have affected the

outcome of that decision. 802 A.2d at 1227. Plain tiff has provided sufficient evidence that assertion of personal juri sdiction over Defendant will not offend traditional notions of fair play an d substantial justice.

A final factor which we deem significant is that t he purchase here was of a motor vehicle. Hence, it is both a more s ubstantial 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 d ifferent 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 h ome state.

Accordingly, Defendant’s motion to dismiss for lac k of personal jurisdiction is DENIED.

Dated this ___ day of November, 2005.

__________________________5 Presiding Judge