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GUFFEY v. OSTONAKULOV2014 OK 6321 P.3d 971Case Number: 112270Decided: 02/11/2014THE SUPREME COURT OF THE STATE OF OKLAHOMACite as: 2014 OK 6, 321 P.3d 971
SAMANTHA GUFFEY, individually, 
Plaintiff/Appellant,v.ODIL OSTONAKULOV, individually and MOTORCARS OF 
NASHVILLE INC. a Tennessee corporation, Defendants/Appellees.

ON APPEAL FROM THE DISTRICT COURT OF OKLAHOMA 
COUNTYHONORABLE BRYAN C. DIXONDISTRICT JUDGE

¶0 Plaintiff/Appellant Samantha Guffey (Guffey), an Oklahoma resident, filed 
a lawsuit against Defendants Odil Ostonakulov (Ostonakulov) and Motorcars of 
Nashville, Inc. (MNI), a resident of Tennessee and a Tennessee corporation, 
respectively, in the District Court of Oklahoma County. Guffey alleged fraud and 
violations of the Oklahoma Consumer Protection Act, 15 O.S. §751 et seq.in 
connection with her purchase of a vehicle from Defendants using the auction site 
eBay. On September 20, 2013, the trial court dismissed the action because it 
determined Oklahoma lacked jurisdiction over Defendants. Guffey appealed. We 
hold that because Defendants possessed sufficient minimum contacts with the 
State of Oklahoma, the district court possessed in personam jurisdiction 
over Defendants.

JUDGMENT OF THE TRIAL COURT IS REVERSED; CAUSE 
REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION

Paul E. Quigley, Quigley, Henry & Hill, Oklahoma City, Oklahoma, for 
Plaintiff/Appellant.Craig Edward Brown and Evan A. McCormick, Wheeler, 
Wheeler, Morgan, Faulkner and Brown, Oklahoma City, Oklahoma, for 
Defendants/Appellees.


COMBS, J.: 
¶1 The only question presented on appeal is whether the district court 
possesses in personam jurisdiction over a Tennessee individual and 
corporation, who sold a motor vehicle to an Oklahoma resident. We hold that the 
district court possesses jurisdiction. The totality of contacts in this cause 
indicates that the exercise of in personam jurisdiction is proper and 
does not violate the due process rights of Defendants/Appellees.
Alleged Facts and Procedural History 
¶2 Guffey is a resident of Oklahoma County, Oklahoma. Ostonakulov is a 
resident of the State of Tennessee and MNI is a Tennessee corporation with its 
principle place of business in Nashville, Tennessee. MNI operates a used car lot 
in Nashville, Tennessee. On or about June 11, 2012, Guffey was the winning 
bidder on a used 2009 Volvo XC 90 listed for auction on eBay, Inc. by MNI. 
Guffey, after receiving the vehicle, determined that the vehicle was not in the 
condition advertised, and filed a Petition in the District Court of Oklahoma 
County on December 19, 2012. In her petition, Guffey alleged Defendants engaged 
in fraud as well as violations of the Oklahoma Consumer Protection Act, 15 O.S. §751 et seq.
¶3 On May 10, 2013, Defendants moved to dismiss for lack of personal 
jurisdiction pursuant to 12 O.S. 2011 
§2012(B)(2), on the grounds that they did not possess minimum contacts with 
Oklahoma sufficient for the state to exercise in personam jurisdiction 
without implicating due process concerns.1 Guffey filed a Response to Defendants' Motion to 
Dismiss and Motion to Allow Amended Petition on June 24, 2013, arguing that 
in personam jurisdiction was proper because the minimum contacts 
requirement has been satisfied. Guffey's Response also included an affidavit by 
her attesting to the facts she alleges are sufficient to provide for in 
personam jurisdiction.
¶4 Guffey's affidavit provides that she bid on the Volvo that is the subject 
of the underlying dispute on eBay in part based on a thirty-day limited warranty 
after the purchase, included in the record. Guffey's affidavit indicates that 
after she bid, but several days before the closing date of the auction, she 
received an email solicitation from Ostonakulov suggesting she contact him by 
phone and negotiate a buy it now price for the vehicle. She chose not to do so, 
but only after calling and speaking with him personally about the matter. After 
she discovered that she won the auction with the highest bid, she asserts she 
had her father call and speak to Ostonakulov about the final details of the 
matter and payment instructions. She then signed a purchase agreement that was 
mailed to her father's offices in Oklahoma City by Ostonakulov, and returned it 
to Tennessee. Ostonakulov also helped to arrange shipping of the vehicle to 
Oklahoma, where Guffey took delivery.
¶5 Guffey further asserts that this eBay sale is not an isolated transaction 
for Defendants, and that they are an active "power seller" on eBay, averaging 
12-35 cars for sale every day, and advertising 942 cars on the site. Guffey also 
asserts that she knows of at least three cars sold by Defendants in the state of 
Oklahoma, and believes they have sold more than thirty cars to residents of the 
state.
¶6 With leave of the trial court, Guffey filed an Amended Petition on July 
28, 2013, containing many of the facts she first provided in her affidavit, 
alleging an exercise of in personam jurisdiction over the Defendants by 
the trial court was proper. Defendants again moved to dismiss on July 17, 2013, 
asserting that because Guffey's Amended Petition contained no affidavit or other 
written materials, to support its stated facts, that would support its 
jurisdictional allegations, it was facially deficient and did not comport with a 
prima facie showing of personal jurisdiction over Defendants.
¶7 Guffey filed a response to the Defendants' second motion to dismiss on 
August 2, 2013, asserting that her Amended Petition and the affidavit 
accompanying her Response to Defendants' first motion to dismiss were sufficient 
to illustrate the existence of minimum contacts so as to justify the trial 
court's exercise of in personam jurisdiction, and requesting time from 
the trial court to conduct discovery with regard to Ostonakulov's contacts with 
the State of Oklahoma.
¶8 The trial court held a hearing on Defendants' second Motion to Dismiss on 
November 6, 2013, where the parties argued the issue of in personam 
jurisdiction. In an order dated September 20, 2013, the trial court sustained 
Defendants' Motion to Dismiss and dismissed the action for lack of in 
personam jurisdiction over Defendants.2 Guffey appealed, and this cause was 
retained on the Court's own motion and assigned to this office on November 20, 
2013.
Standard of Review 
¶9 In Oklahoma, a special appearance with a motion to dismiss is the proper 
method for challenging in personam jurisdiction. Powers v. District 
Court of Tulsa County, 2009 OK 
91, ¶7, 227 P.3d 1060; In 
re Turkey Creek Conservancy District, 2008 OK 8, n. 4, 177 P.3d 558; Southard v. Oil 
Equipment Corp., 1956 OK 74, 296 P.2d 780. In Powers, this 
Court explained that a defendant challenging in personam jurisdiction has 
an initial procedural burden to raise the facts challenging in personam 
jurisdiction, usually by accompanying a motion to dismiss with an affidavit or a 
statement from the attorney what proof would be shown at an evidentiary hearing, 
to be followed by a response from the party asserting jurisdiction also 
accompanied by affidavits. Powers, 2009 OK 91, ¶7.
¶10 When in personam jurisdiction is challenged, the jurisdiction over 
a non-resident defendant cannot be inferred, but instead must affirmatively 
appear from the trial court record, and the burden of proof in the trial court 
is upon the party asserting that jurisdiction exists. Powers, 2009 OK 91, ¶7; Gilbert v. 
Security Financial Corp., 2006 
OK 58, ¶2, 152 P.3d 165; 
Conoco, Inc. v. Agrico Chemical Co., 2004 OK 83, ¶20, 115 P.3d 829. The determination of 
in personam jurisidiction is a legal ruling, subject to de novo 
review by this Court, and this Court will canvas the record for proof3 that the 
nonresident party had sufficient contacts with the state to assure that 
traditional notions of fair play and substantial justice will not be offended if 
this state exercises in personam jurisdiction. Conoco, Inc., 2004 OK 83, ¶¶9 & 20.
¶11 In Personam Jurisdiction Requires 
Sufficient Minimum Contacts with the State of Oklahoma so that the Exercise of 
Jurisdiction Does not Offend Traditional Notions of Fair Play and Substantial 
Justice.
¶12 In personam jurisdiction is the power to deal with the person of 
the defendant and render a binding judgment against that defendant. Conoco, 
Inc. v. Agrico Chemical Co., 2004 OK 83, ¶16, 115 P.3d 829; Gilbert v. 
Security Finance Corp. of Oklahoma, Inc., 2006 OK 58, ¶16, 152 P.3d 165; Hobbs v. 
German-American, 1904 OK 60, 
¶5, 78 P. 356. In personam 
jurisdiction may be acquired either by service of process or by voluntary 
appearance before the court. Conoco, Inc., 2004 OK 83, ¶16. Title 12 O.S. Supp. 2012 §2004(F), known 
as the long-arm statute, allows jurisdiction over non-residents in Oklahoma 
court's by providing for service of process outside of the state. Mastercraft 
Floor Covering, Inc. v. Charlotte Flooring, Inc., 2013 OK 87, ¶10, 313 P.3d 911; Conoco, Inc., 
2004 OK 83, ¶16. Title 12 O.S. Supp. 2012 §2004(F) 
provides: "[a] court of this state may exercise jurisdiction on any basis 
consistent with the Constitution of this state and the Constitution of the 
United States."
¶13 This Court has previously stated that the intent of the long-arm statute 
is to extend the jurisdiction of Oklahoma courts over non-residents to the outer 
limits permitted by the Oklahoma Constitution and the due process clause of the 
United States Constitution. Mastercraft Floor Covering, Inc., 2013 OK 87, ¶10; Conoco, 
Inc., 2004 OK 83, ¶17; 
Fields v. Volkswagon of America Inc., 1976 OK 106, ¶6, 555 P.2d 48. The outer limits of 
what constitutes due process in regard to in personam jurisdiction have 
been set and described in some detail by the Supreme Court of the United States. 
Conoco, Inc., 2004 OK 83, 
¶17.
¶14 In the seminal case of International Shoe Co. v. State of 
Washington, Office of Unemployment Compensation and Placement et al., 326 
U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), the Supreme Court of the United 
States created what is colloquially deemed the minimum contacts test when it 
determined:


due process requires only that in order to subject a defendant to a 
    judgment in personam, if he be not present within the territory of the 
    forum, he have certain minimum contacts with it such that the maintenance of 
    the suit does not offend "traditional notions of fair play and substantial 
    justice."
326 U.S. at 316, 66 S.Ct at 158 (quoting Millikin v. Meyer, 311 
    U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 
(1940)).
Whether sufficient minimum contacts exist, and due process is satisfied, 
depends upon the "quality and nature of the activity in relation to the fair and 
orderly administration of the laws which it was the purpose of the due process 
clause to ensure." International Shoe Co., 326 U.S. at 319. Requiring 
sufficient minimum contacts protects a person's liberty interest in not being 
subjected to a binding judgment in a forum where the person has no meaningful 
contacts, ties, or relations. Burger King Corporation v. Rudzewicz,
471 U.S. 462, 472, 105 S.Ct. 2174, 2181, 85 L.Ed.2d 528; Conoco, 
Inc., 2004 OK 83, ¶18.
¶15 Applying federal jurisprudence, this Court has held that when a 
non-resident deliberately engages in significant activities in a forum state or 
creates continuing obligations between the non-resident and the residents of the 
forum, the non-resident submits to the jurisdiction of the state. Mastercraft 
Floor Covering, Inc., 2013 OK 
87, ¶12; Hough v. Leonard, 1993 OK 112, ¶7, 867 P.2d 438. Jurisdiction under the 
long-arm statute is predicated on foreign state activity that results in forum 
state harm. Mastercraft Floor Covering, Inc., 2013 OK 87, ¶12; Hough, 1993 OK 112, ¶7. A non-resident who 
has purposefully directed activities at forum residents must present a 
compelling case that jurisdiction would be unreasonable or that the exercise of 
in personam jurisdiction would offend the traditional notions of 
substantial justice and fair play. Mastercraft Floor Covering, Inc., 2013 OK 87, ¶12; Hough, 1993 OK 112, ¶7.
¶16 When a non-resident corporation exercises the privilege of conducting 
activities in a state, it also enjoys the benefits and protections of the laws 
of that state and any obligations connected with that activity may be enforced 
in that state's courts. Mastercraft Floor Covering, Inc., 2013 OK 87, ¶13; Conoco, 
Inc., 2004 OK 83, ¶19; 
International Shoe Co., 326 U.S. at 319. The focus is on whether there is 
some act by which the defendant purposefully avails itself of the privilege of 
conducting activities within the forum state, thus invoking the benefits and 
protections of its laws. Mastercraft Floor Covering, Inc., 2013 OK 87, ¶13; Conoco, 
Inc., 2004 OK 83, ¶19; 
Hanson v. Denckla¸ 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 
(1958). Due process requires that the non-resident defendant's conduct and 
connection with the forum state are such that the nonresident could have 
reasonably anticipated being haled into court in that state. Mastercraft 
Floor Covering, Inc., 2013 OK 
87, ¶13; Conoco, Inc., 2004 OK 83, ¶19; World-Wide 
Volkswagon Corporation v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 
567, 62 L.Ed.2d 490 (1980). A single act can support jurisdiction so long as it 
creates a substantial connection with the forum state. Mastercraft Floor 
Covering, Inc., 2013 OK 87, 
¶13; Conoco, Inc., 2004 OK 
83, ¶19; McGee v. International Life Insurance Co., 355 U.S. 220, 78 
S.Ct. 199, 201, 2 L.Ed.2d 223 (1957).
¶17 Sufficient Minimum Contacts Exist between Defendants and 
the State of Oklahoma for the Exercise of In Personam 
Jurisdiction to be Proper.
¶18 The question of in personam jurisdiction arising from a 
transaction on eBay is one of first impression for this Court. Defendants focus 
on the eBay listing and assert that merely placing an item on sale through eBay 
in all fifty states is insufficient to establish minimum contacts with the state 
of the winning bidder:


[t]he question to be answered is, "Does placing an item for sale on eBay 
    to all 50 states subject the seller to the laws of the state of the winning 
    bidder at auction?"
Defendants' Motion to Dismiss for Lack of Personal Jurisdiction, p. 
  4.
The Defendants cite several cases from other jurisdictions in support of this 
proposition.4 
In one of those cases, Boschetto v. Hansing, 539 F.3d 1011 (9th Cir. 
2008), the Court of Appeals for the Ninth Circuit held that a single transaction 
for the sale of a vehicle over eBay did not satisfy the minimum contacts 
requirement, noting that "on the facts of this case--a one-time transaction--the 
use of eBay as the conduit for that transaction does not have any dispositive 
effect on jurisdiction." Boschetto, 539 F.3d at 1019.
¶19 However, this Court agrees with another determination made by the Court 
of Appeals for the Ninth Circuit in Boschetto, that "[a]t the bottom, the 
consummation of the sale via eBay here is a distraction from the core issue: 
This was a one-time contract for the sale of a good that involved the foreign 
state only because that is where the purchaser happened to reside, but otherwise 
created no 'substantial connection' or ongoing obligations there." 539 F.3d at 
1019. The question presented here is not whether a single eBay transaction, in 
and of itself, provides the minimum contacts necessary for the exercise of in 
personam jurisdiction to be proper,5 but rather whether the totality of contacts 
makes an exercise of jurisdiction proper. Mastercraft Floor Covering, 
Inc., 2013 OK 87, ¶18.
¶20 Boschetto is distinguishable from the facts of this case, a 
distinction that the Court of Appeals for the Ninth Circuit was well aware of 
when it issued its ruling. The court stated:


[the plaintiff] does not allege that any of the Defendants are using eBay 
    to conduct business generally. He does not allege that Defendants conduct 
    regular sales in California (or anywhere else) via eBay..
This is a distinction with a difference, as the cases that have found 
    that jurisdiction was proper based on eBay sales relied heavily on the fact 
    that the defendant was using the platform as a broader vehicle for 
    commercial activity. See, e.g., Crummey v. Morgan, 965 So.2d 
    497, 500 (Ct.App.La.2007) (evidence of two prior sales to Louisiana 
    residents in prior year); Dedvukaj v. Maloney, 447 F.Supp.2d 813, 
    822-23 (E.D.Mich.2006) ("Although the Court's research has not disclosed any 
    personal jurisdiction cases involving the use of eBay auctions as a 
    commercial seller's primary marketing vehicle, it is clear from the record 
    that Defendants' use of eBay is regular and systemic."); Malcolm v. 
    Esposito, 2003 WL 23272406 at *4 (Va.Cir.Ct. Dec. 12, 2003) ("Defendants 
    are commercial sellers of automobiles who, at the time the BMW was sold, 
    were represented on eBay as 'power sellers' with 213 
  transactions.").
Boschetto, 539 F.3d at 1019.
Finally, the court concluded that:


Where eBay is used as a means for establishing regular business with a 
    remote forum such that a finding of personal jurisdiction comports with 
    "traditional notions of fair play and substantial justice," International 
    Shoe Co., 326 U.S. at 316, 66 S.Ct. 154, then a defendant's use of eBay 
    may be properly taken into account for purposes of establishing personal 
    jurisdiction.
Boschetto, 539 F.3d at 1019.
From the record, what we have here is not a single, isolated transaction on 
eBay made by a random seller. Defendants are involved in the commercial 
enterprise of selling cars. Guffey alleges that Defendants use eBay as a central 
and regular aspect of their business, allowing them reach out to and sell to 
potential buyers in numerous states, including Oklahoma. Defendants do not 
dispute this fact, and instead assert that their use of eBay as the medium for 
the transactions prevents the establishment of minimum contacts with any state 
where a purchaser resides, simply because Defendants do not choose the buyer or 
the state where the buyer is located.
¶21 We do not find that argument persuasive. The question is whether 
sufficient minimum contacts are present such that the maintenance of the suit 
does not offend traditional notions of fair play and substantial justice. 
International Shoe Co., 326 U.S. at 316, 66 S.Ct at 158. The Defendants' 
use of eBay to make multiple sales is systemic and appears to be a core part of 
their business. Guffey's affidavit alleges this is not the first sale they have 
made in Oklahoma by those means. In this cause, the auction itself was not the 
only contact between Defendants and Guffey, in Oklahoma, as part of the 
underlying transaction. Defendants argue that an exercise of jurisdiction would 
be unfair because they had no control over the winner of the auction, and yet 
they reached out to Guffey prior to the completion of bidding in an attempt to 
negotiate a sale outside of eBay's bidding process. Guffey interacted directly 
with Ostonakulov, and communications were also exchanged between the Defendants 
and her father's office. Further, the vehicle at issue was the subject of a 
thirty-day limited warranty that created a continuing obligation between 
Defendants and a resident of this state, after the vehicle was shipped to Guffey 
here in Oklahoma.6
¶22 Unlike the situation in Boschetto, this was not a single, isolated 
transaction that involved the unilateral activity of Guffey. 
Mastercraft Floor Covering, Inc., 2013 OK 87, ¶16. This Court will 
not focus merely on the eBay listing or sale itself, but rather, the totality of 
contacts between the non-resident defendants and Oklahoma. Mastercraft Floor 
Covering, Inc., 2013 OK 87, 
¶18; Gregory v. Grove, 1976 OK 
5, ¶6, 547 P.2d 381. 
("Totality of contacts between the parties in Oklahoma are to be considered in 
determining the sufficiency to exercise jurisdiction under long-arm 
service.").
¶23 Cases in other jurisdictions cited by Defendants, in the same vein as 
Boschetto, are factually distinguishable for similar reasons. In 
Winfield Collection, Ltd. v. McCauley, 105 F. Supp.2d 746 (E.D. Mich. 
2000), the court determined two sales to a Michigan resident through eBay were 
insufficient to establish Michigan jurisdiction over a nonresident defendant. 
The court also held, however, that:


Plaintiff identifies no continuing relationship between Defendant and 
    anyone or anything in Michigan, save the craft pattern purchases made from 
    Plaintiff itself. The only contact that McCauley is proven to have had with 
    the State of Michigan is fortuitous and de minimus: the results of 
    two auction sales underpinning the instant dispute, and over which Defendant 
    had little, if any, control.
Winfield Collection, Ltd., 105 F. Supp.2d at 751.
Here, Guffey alleges both greater contact than the fortuitous winning of an 
isolated eBay auction, and further alleges multiple other Oklahoma sales and 
ongoing obligations in Oklahoma by the Defendants in the form of a warranty. 
Cf. Malone v. Berry, 881 N.E.2d 283, ¶14 (Ohio Ct. App. 2007) ("We 
further note there are no facts indicating that the activity at issue involved 
more than a single transaction."); Machulsky v. Hall, 210 F. Supp.2d 531 
(D.N.J. 2002) (Plaintiff failed to show Defendants engaged in more than single 
internet transactions with forum state.) Metcalf v. Lawson, 148 N.H. 35, 
40; 802 A.2d 1221, 1227 (N.H. 2002) ("what appears to be the isolated nature of 
this transaction and the absence of any evidence that the defendant was a 
commercial seller militate against a finding of jurisdiction.")
¶24 By way of contrast, in situations similar to this, where the defendants 
were commercial sellers engaged in systematic sales through eBay, at least one 
other federal court has found the exercise of jurisdiction to be appropriate. In 
Dedvukaj v. Maloney, 447 F.Supp.2d 813 (E.D. Mich. 2006), the court 
determined that an exercise of in personam jurisdiction over the defendant eBay 
sellers was proper, rejecting their argument that "so long as an auction is not 
expressly targeted at a particular forum state, jurisdiction will only be proper 
in the seller's home state." Dedvukaj, 447 F.Supp.2d at 820. Concerning 
the nature of eBay transactions, the court explained:


Internet forums such as eBay expand the seller's market literally to the 
    world and sellers know that, and avail themselves of the benefits of this 
    greatly expanded marketplace. It should, in the context of these commercial 
    relationships, be no great surprise to sellers--and certainly no unfair 
    burden to them--if, when a commercial transaction formed over and through 
    the internet does not meet a buyer's expectations, they might be called upon 
    to respond in a legal forum in the buyer's home state. Sellers cannot expect 
    to avail themselves of the benefits of the internet-created world market 
    that they purposefully exploit and profit from without accepting the 
    concomitant legal responsibilities that such an expanded market may bring 
    with it.
Dedvukaj, 447 F.Supp.2d at 820.7
CONCLUSION
¶25 The Supreme Court of the United States has warned against permitting the 
march of technological progress to destroy traditional notions of personal 
jurisdiction.8 
However, the Court has largely left it to lower federal and state courts to work 
out how to strike the proper balance in an increasingly connected age. The use 
of a third-party auction site such as eBay as a vehicle for sales cannot serve 
as a shield and absolute bar to the exercise of in personam jurisdiction 
by this state, merely because the seller does not choose the buyer or the 
buyer's state, when otherwise sufficient minimum contacts exist so that the 
exercise of jurisdiction is reasonable and does not offend traditional notions 
of fair play and substantial justice. Mastercraft Floor Covering, Inc., 
2013 OK 87, ¶12; Hough, 
1993 OK 112, ¶7.
¶26 Defendants are involved in the commercial sale of vehicles to numerous 
states, and eBay is a primary means through which they conduct these sales. 
Defendants negotiated with Guffey directly over the vehicle eventually sold to 
her in Oklahoma, warrantied that vehicle while it was to be titled and driven in 
Oklahoma, and have allegedly engaged in more than one such transaction in this 
state. The totality of Defendants' contacts with Oklahoma constitute more than 
sufficient minimum contacts for the exercise of in personam jurisdiction 
to be reasonable and comport with traditional notions of fair play and 
substantial justice.

JUDGMENT OF THE TRIAL COURT IS REVERSED; 
CAUSEREMANDED FOR PROCEEDINGS CONSISTENT WITH THIS 
OPINION

ALL JUSTICES CONCUR

FOOTNOTES

1 Title 
12 O.S. 2011 §2012 provides in 
pertinent part:
B. HOW PRESENTED. Every defense, in law or fact, to a claim for relief in any 
pleading, whether a claim, counterclaim, cross-claim, or third-party claim, 
shall be asserted in the responsive pleading thereto if one is required, except 
that the following defenses may at the option of the pleader be made by 
motion:
1. Lack of jurisdiction over the subject matter;
2. Lack of jurisdiction over the person;
3. Improper venue;
4. Insufficiency of process;
5. Insufficiency of service of process;
6. Failure to state a claim upon which relief can be granted;
7. Failure to join a party under Section 2019 of this title;
8. Another action pending between the same parties for the same claim;
9. Lack of capacity of a party to be sued; and
10. Lack of capacity of a party to sue.
A motion making any of these defenses shall be made before pleading if a 
further pleading is permitted. No defense or objection is waived by being joined 
with one or more other defenses or objections in a responsive pleading or 
motion. If a pleading sets forth a claim for relief to which the adverse party 
is not required to serve a responsive pleading, the adverse party may assert at 
the trial any defense in law or fact to that claim for relief. If, on a motion 
asserting the defense numbered 6 of this subsection to dismiss for failure of 
the pleading to state a claim upon which relief can be granted, matters outside 
the pleading are presented to and not excluded by the court, the motion shall be 
treated as one for summary judgment and all parties shall be given reasonable 
opportunity to present all material made pertinent to the motion by the rules 
for summary judgment. A motion to dismiss for failure to state a claim upon 
which relief can be granted shall separately state each omission or defect in 
the petition, and a motion that does not specify such defects or omissions shall 
be denied without a hearing and the defendant shall answer within twenty (20) 
days after notice of the court's action.

2 It 
appears from the transcript of proceedings before the trial court on August 23, 
2013, that the court granted Defendants' Motion to Dismiss in order to allow for 
speedy appellate review and guidance concerning this issue of first impression. 
The trial court stated:
We've got some specific things that happened here in this case that may make 
a difference as to the jurisdiction or not, but I think an appellate court needs 
to look at this and resolve this issue. Jurisdiction is very important and we 
certainly don't want to proceed with something if we don't have jurisdiction 
here in the State.
So I'm going to go ahead and sustain it as per journal entry. Let's get a 
ruling from the appellate court about this because I'm sure EBay transactions 
are going to come up more and more often around here.
Supplement to Record on Accelerated Appeal, Transcript of Proceedings had on 
August 23, 2013, Before the Honorable Bryan C. Dixon, p. 14.

3 The 
record indicates that Defendants did not provide an affidavit with either of 
their Motions to Dismiss for Lack of Personal Jurisdiction (filed on May 10, 
2013 and July 17, 2013). The only affidavit contained within the record is the 
one attached to Guffey's two Responses to Defendants' Motions to Dismiss. While 
the trial court held a hearing, it made no finding of facts. Journal Entry, Sep. 
20, 2013, Record on Accelerated Appeal, 7. It would appear that Defendants are 
challenging the facial sufficiency of Guffey's petition. See, e.g., 
Powers, 2009 OK 91, ¶8 
("Husband's motion to dismiss was not accompanied by affidavit of Husband or 
counsel showing what proof would show at an evidentiary hearing to adjudicate 
contested facts. The motion was not accompanied by an evidentiary substitute. 
Husband's §2012(B)(2) motion to dismiss challenging in personam 
jurisdiction thus challenges the facial sufficiency of Wife's 
petition.").

4 While 
pronouncements of federal law questions by inferior federal court are not 
binding on this Court, they are persuasive. Mehdipour v. State ex rel. Dept. 
of Corrections, 2004 OK 19, 
¶18, 90 P.3d 546; Akin v. 
Missouri Pacific Railroad Co., 1998 OK 102, ¶ 30, 977 P.2d 1040; Dority v. Green 
Country Castings Corp.,1986 OK 
67, ¶ 11, n. 24, 727 P.2d 
1355).

5 This 
court has emphasized, however, that a single transaction can be enough to make 
an exercise of in personam jurisdiction proper, so long as it creates a 
substantial connection with the forum state. Mastercraft Floor Covering, 
Inc., 2013 OK 87, ¶13; 
Conoco, Inc., 2004 OK 83, 
¶19; McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 
199, 201, 2 L.Ed.2d 223 (1957).

6 The 
warranty document provided in the record does not contain any choice of law 
provisions or a venue selection clause that would indicate the exercise of in 
personam jurisdiction by a court of this state would be improper. 
Plaintiff's Response to Defendants' Motion to Dismiss, Exhibit 1.

7 In 
Dedvukaj the court applied the "sliding scale" analysis of interactivity 
introduced in Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 
(W.D. Penn. 1997) as a tool to help determine the appropriateness of exercising 
in personam jurisdiction. This analysis requires an examination of the 
interactivity level of websites in order to gauge whether sufficient contacts 
are present. However, the test in Zippo was created to analyze 
jurisdictional requirements in causes where the defendants were operators of the 
website in question. This Court agrees with the Court of Appeals for the Ninth 
Circuit and other courts that have determined the sliding scale analysis 
developed in Zippo is inapplicable to a case involving sales over eBay. 
See, e.g., Boschetto, 539 F.3d at 1018. Defendants in this cause do not 
run eBay. The question here is not whether jurisdiction over eBay or its 
operators is proper, but whether jurisdiction over Defendents, who are using it 
as a vehicle for sales, is proper. We have not applied the Zippo "sliding 
scale" analysis in such a fashion before and decline to do so now, but agree 
with the Dedvukaj court that regular and systematic use of a site such as eBay 
is a valid factor for consideration. Boschetto, 539 F.3d at 1019; 
Dedvukaj, 447 F.Supp2d at 822-23.

8 The 
Court stated in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 
292-93, 100 S.Ct. 559, 565, 62 L.Ed.2d 490 (1980):
[t]he limits imposed on state jurisdiction by the Due Process Clause, in its 
role as a guarantor against inconvenient litigation, have been substantially 
relaxed over the years. As we noted in McGee v. International Life Ins. Co., 
supra, 355 U.S., at 222-223, 78 S.Ct., at 201, this trend is largely 
attributable to a fundamental transformation in the American economy:
"Today many commercial transactions touch two or more States and may involve 
parties separated by the full continent. With this increasing nationalization of 
commerce has come a great increase in the amount of business conducted by mail 
across state lines. At the same time modern transportation and communication 
have made it much less burdensome for a party sued to defend himself in a State 
where he engages in economic activity."
The historical developments noted in McGee, of course, have only 
accelerated in the generation since that case was decided.
Nevertheless, we have never accepted the proposition that state lines are 
irrelevant for jurisdictional purposes, nor could we, and remain faithful to the 
principles of interstate federalism embodied in the 
Constitution.


Citationizer© Summary of Documents Citing This DocumentCite
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None Found.Citationizer: Table of AuthorityCite
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