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 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.
       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.



                                           __________________________


                                     4
    Presiding Judge




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