*1 Conclusion
The Tax Court's denial of Miller's mo-
tion for summary judgment is affirmed.
DICKSON, SULLIVAN, BOEHM, and
RUCKER, JJ., concur.
Richard ATTAWAY and Marlene
Attaway, Appellants-
Defendants,
Llexcyiss OMEGA and D. Dale
York, Appellees-Plaintiffs.
No. 11A01-0712-CV-608.
Court of Appeals of Indiana.
March 2009.
Rehearing May Denied
T4 History
Fаcts and Procedural Llexeyiss Omega January Indiana, York, Dale both residents D. *3 eBay, for sale on listed a Porsche jointly The auction was auction website. popular in the eBay user open any registered to that the listing The stated States. United in Indiana and that the was located vehicle for responsible be "winning" bidder would delivery of the paying fоr arranging and Idaho, Attaways, residents of vehicle. $5,000 delivery plus costs. entered bid had being they notified that "won" After IL, Elmhurst, Attor- Lindsay Boyd, T. auction, Attaways pay- the submitted the ney Appellants. for PayPal through and York Omega ment to (an by payment service owned online Hanner, Hanner, & Hanner Gary G. to the charged the amount eBay), which Rockville, IN, Appel- Hannеr, Attorney for account. On or Attaways' MasterCard lees. 2006, 5, Attaways the ar- February about USA, Washington- ranged CarHop for OPINION up the transporter, pick to based auto it to their CRONE, in Indiana and deliver Judge. Porsche Idaho residence. Summary Case Porsche, the taking delivery After ("the Attaway Att- Marlene Richard and asking Attaways PayPal, filed a claim with interlocutоry appeal of aways") bring this Omega to payment a refund of its of their motion the trial court's denial "significant the Porsche was York because and remand. We affirm dismiss. eBay listing. ly not-as-described" its Issues 8, 2006, Exh. A.1 On March See Plaintiff's Attaways via email PayPal informed the by denying err I. Didthe trial court encour their claim was denied and that to dismiss? Attaways' the motion buy directly with agеd them "work County proper? Clay II. Is venue appears Id. It to find a resolution." er PayPal user thereafter, that, Attaways III. Dothe con soon payment to rescind the MasterCard prohibit parties vinced agreements Omega and York.2 made to dispute? their was litigating from ultimately Attaways PayPal claim that 2. The 18, 2008, Attaways filed a 1. OnDecember favor, resulting in the total A, found in their alleging Plaintiff's Exhibit motion strike $5,000 Omega and being to them. returned into evi was not admitted that the document however, this, allege deny seem York claims court. Our dence before the small Attaways obtained refunds that the exhibit review of the record indicates itself, the rec- through Based on MasterCard hearing at the trial court in fact admitted was us, the lаtter tend to believe ord before we 9, Transcript, p. 67-68. March 2007. See on Aitaways record also cite to the claim. The Therefore, deny Attaways' hereby mo we they a refund proof that tried to collect as tion to strike. nothing There is but were denied. from support this claim. record to in the 2006, 27, Omega personal jurisdic- On December and York whеther the exercise of Attaways in small against filed suit tion is consistent with the Federal Due $5,900 court, demanding in dam- claims Process Id. at Clause." 1, 2007, ages. February Attaways On process analysis This federal due is well- filed an answer and a motion to dismiss settled. In International Shoe Co. v. prejudice, citing, among things, other Washington, 326 U.S. 66 S.Ct. personal jurisdiction. August lack of On (1945), L.Ed. 95 Supreme 21, 2007, the trial court denied the motion. established that a nonresident defendant 24, 2007, On September filed must have "certain minimum contacts with *4 certify a motion to order for appeal. On forum such [the the mainte state} 3, Attaways October filed a motion to nance of the suit does not offend tradition stay proceedings pending appeal, which al plаy notions of fair jus and substantial granted. interlocutory the trial court This (citation 316, tice." Id. at 66 154 S.Ct. appeal ensued. omitted). quotation marks The Court la Discussion and Decision ter clarified this test to mean that nonresident defendant I. Personal engage must in Jurisdiction by "some act purposefully which [he] avails claim that the trial privilege of the conducting [himself] of ac denying court erred in their motion to State, tivities within the forum thus involk- for lack personal jurisdiction. dismiss of ing protections the benefits and of its person jurisdic When a attacks the court's Denckla, 235, laws." Hanson v. 357 U.S. him, tion over he bears the proof burden of (1958). 253, 1228, 2 78 S.Ct. L.Ed.2d 1283 upon by preponderance that issue a evidence, the lack jurisdiction unless of is Therе are types two of apparent upon complaint. face of the jurisdiction, general specific. If the Co., 214, Lee v. Rubber Goshen 635 N.E.2d defendant's contacts with the state are so (Ind.Ct.App.1994), 215 trons. demied. systematic" "continuous and that the de a reviewing When motion to dismiss for fendant reasonably should anticipate being lack personal jurisdiсtion, apply we a de haled into the courts of that any state for novo standard of review. Dexter Axle Co. matter, subject then he is general juris USA, Inc., v. 43, Baan 833 N.E.2d 48 diction, even causes unrelated to his (Ind.Ct.App.2005)." However, personal ju contacts the forum with state. LinkAmer facts, risdiction typically turns on related ica, 967; Helicopteros 857 N.E.2d at Naci forum, to the defendant's contacts Colombia, Hall, onales de S.A. v. 466 U.S. findings by of fact the trial court are 408, 9, 1868, 415 n. 104 S.Ct. 80 L.Ed.2d reviewed for clear error. LinkAmerica (1984). 404 The parties agree, we, as do Albert, (Ind. Corp. 961, v. 857 N.E.2d 965 Atterways that the subject are not to gen 2006). jurisdiction eral in Indiana. fairly Until recently, determining per- Specific jurisdiction jurisdiction requires sonal required Indiana an аnalysis the defendant purposefully under both Indiana has Trial Rule 4.4 availed (Indiana's himself of privilege conducting activ long arm provision) and the fed- ities the forum within state and that his eral process 2006, however, due clause. our supreme court clarified that a conduct and 2003 connection with that state are such that he should reasonably anticipate 44(A) amendment to Indiana Trial Rule to, does, "was analy- being intended Burger reduce haled into court there. King personal jurisdiction sis of to the Corp. 462, 474-75, issue of v. Rudzewicz 471 U.S.
77
(1985).
years.
L.Ed.2d 528
A
example,
105 S.Ct.
85
cent
For
the U.S. Dis
Court,
may
the forum
be
trict
single
Michigan,
contact with
state
Eastern District of
jurisdiction
specific
sufficient to establish
Michigan-based buyer sued New Yоrk-
if it creates a "substantial
contract, fraud,
over defendant
based seller for breach of
the forum state and the
connection" with
misrepresentation
when the seller ac
suit is related to that connection. McGee
cepted buyer's payment of
$649.20
Co.,
220, 223,
Int'l
355
Ins.
78 failed
ship
paintings
described in
Life
(1957).
199, 2 L.Ed.2d
A
S.Ct.
defen
listings posted by
two
auction
dant cannоt be haled into a
Dedvukaj
seller. See
v. Maloney, 447
random, fortuitous,
"solely as a result of
or
(E.D.Mich.2006).
F.Supp.2d 813
In con
attenuated
contacts or of the unilateral
cluding
that the
had made a prima
activity
party
per
of another
or a third
subject
facie case that
the seller was
King
son."
at
Burger
Corp., 471 U.S.
personal jurisdiction Michigan,
the court
S.Ct.
factors,
many
considered
including the fol
lowing:
the seller's use of
"regu
was
*5
If the defsndant's contacts with
lar
systemic";
required
the seller
support
the forum state are sufficient to
goods
warehouse for its
to be sold on
finding
general
specific jurisdiction,
of
or
eBay;
the seller offered a toll-free tele
process requires
due
that the assertiоn of
phone
appeared
number and
to have sev
personal jurisdiction
comport
would
employees;
placed
eral
and the seller
ex
play
justice."
"fair
and substantial
Id. at
photographs,
tensive
detailed descriptions,
476, 105
2174. To make this deter
S.Ct.
logos, slogans, and other marketing mate
mination,
may
the court
consider five faс
listings.
rials on the auction
Based on all
(1)
(2)
defendant;
tors:
the burden on the
factors,
of these
the court
found that
the
forum
adjudicating
the
state's interest
in
purposely
seller had
availed itself
acting
of
(8)
dispute;
plaintiffs
the
the
interest
in
Michigan.
in
relief;
obtaining convenient and effective
(4)
judicial system's
the interstate
interest
single
transaction,
In the case of a
online
in
the
obtaining
most efficient resolution of
may
the outcome
be different.
In Boschet
(5)
controversies;
(9th
the shared interest
v. Hansing,
to
The instant case is one of first sin and deliver it him in California. sion in Indiana in perhaps country. the arrived, the buyer When car the found the Several state and federal courts have ad- vehicle to be in poorer condition than the jurisdictional eBay dressed issues in trans- had represented eBay. buyer sеller on buyers action cases where dissatisfied have sued in the seller the District sellers, Court alleging misrepresentation. sued for the Northern of District California research, however, Our has not revealed diversity citizenship. based on of any Upon in an eBay cases which seller has sued buyer payment motion, of rescission after the seller's the district court dismissed complaint jurisdic the for lack picked up in of has item the seller's significant state. These distinctions are tion. analysis.
our In considering pur- whether the seller guidance, posefully As we first look to similar availed doing himself of business cases in jurisdictions decided other in re- California, the Ninth not- Circuit Court
78 "sliding applied have any tionally, courts not сreate did that the transaction
ed
cases,
jurisdiction
test in internet
parties,
scale"
between
obligation
ongoing
distinguish
interactive
which seeks
as-
continuing commitment
no
there was
(see
contract,
Zippo Mfg.
passive
from
websites
in the
by the seller
sumed
Com, Inc.,
F.Supp.
Zippo
v.
Dot
Co.
did not
of the contract
performance
any
1997)).
sub-
engаge
(W.D.Pa.,
Zippo
the seller to
require
Under
per
exercise of
sliding
test, proper
The court
scale
California.
business
stantial
specifical-
involving
in a claim
jurisdiction
did not
noted that
seller
sonal
also
residents;
directly proportional
to California
ly direct his sale
Internet contact is
for a one-time
interactivity
a conduit
rathеr
was
to the commercial
buyer. Con-
to the California
the contact is made.
transaction
website over which
facts,
However,
the Ninth Circuit
analysis
mode of
makes
sidering these
this
not
that the seller did
determined
in the
context since
little sense
minimum contacts with
have sufficient
user,
eBay,
and not
controls
jurisdic-
support personal
buyer's
marketing
statе
efforts of
interactivity
Tapes
As noted Action
website.
tion.
Weaver,
79 2007) (some away how far the vehicle is from the buy- quotations citations and omit- ted). er's home.
Finally, the
direct us to a U.S.
By submitting
bid,
the Attaways
Jersey
District Court Case from New
agreed
аppear,
person
or by repre
they claim
parallel"
which
is
to the
"[m]ost
sentative, in Indiana
pick
up the vehicle.
Appellant's
instant case.
Br. at
In9. Ma After they
Porsche,
"won" the
they hired
Hall,
chulsky
buyer,
an Oregon an
shipping
auto
company, based in Wash
resident, purchased a
mint coin
set
ington, to enter the state of Indiana as
seller,
resident,
from the
Jersey
New
via
representative,
their
pick up
Porsche,
(D.N.J.2002).
eBay.
F.Supp.2d
210
and deliver it to them
sum,
in Idaho.
In
shipped
The seller
buyer,
set to the
during the course
transaction,
of this
there
upon receipt,
it
just
he claimed was not the was more than
a single
pur
online
set he had ordered
chase to
shipped
satisfy
personal
it bаck to
jurisdiction
requirements
the seller. When
buy
seller refused the
federal
process
due
Therefore,
clause.
refund,
we
requests
buyer
er's
for a
conclude that
post
Attaways purposefully availed
negative
ed
comments on the
themselves
seller's
of the privilege of conducting
page.
"feedback"
She sued the
activities
within the Statе of Indiana such that
buyers,
they
several other
claiming
they
that
reasonably
could
anticipate defending
had
violated the Racketeer Influenced and
lawsuit
Indiana related to
this
Corrupt Organizations Act by conspiring
purchase.
her
defame
and ruin her business.
case,
the U.S. District Court
found
As for whether the attachment of
more,
single purchase,
"this
withоut
is personal jurisdiction comports with "fair
not a
premise upon
sufficient
which the
play and substantial justice[,]" we consider
can
exercise
the factors set forth above. See Burger
(em
Oregon buyer]."
[over
Id. at 542
King Corp.
atU.S.
Here, sellers, the Indiana Omega and if people the case is tried in Indiana. York, filed suit against buyers, the Idaho weighing the states, interests of the it is the Attaways, after the Attaways took de- certainly within the bounds of fair play and livery of the vehicle and then rescinded justice substantial to allow Indiana to exer payment. above, As mentioned the Atta- cise jurisdiction over individuals ways able were to see the sellers' location who have entered into a contract with an prior making to their bid on the Porsche. Indiana resident purchase for the of prop Presumably, person considering placing erty Indiana, located in have removed that a bid in an online аuto auction would note property from the Indiana, state of location, when, vehicle's particularly as then rescinded payment. here, the seller buyer states that the will responsible be for arranging paying above, Based on all of the we affirm the for delivery. Obviously, delivery fees trial court's denial of the Attaway's motion vary could significаntly, depending upon to dismiss. of the interests weighing in us, that Rules Claims II Small cireum- particular under these states argue pur Attaways also The of the bounds stances, be outside it would Rules, venue the Small Claims to suant require justice to play and substantial fair "(alt no because County improper Clay is both the seller, now without who is transac into a Attaways enter did the
time it, bring this money for to vehicle Clay themselves availed tion which in Idaho. case Br. at 12. As Ome County." Appellant's out, Attaways sent point and York ga up County pick Clay
representative purchased. This after it was
the vehicle establish venue sufficient to
action was County.
Clay N.E. the Matter of In re Process Dispute Resolution III. Online N.L., Appellant-Respondent, Attaways also contend required to use PayPal users are eBay and process dispute resolution
thosе websites' County Department of Child Marion They direct us litigation. in lieu of es Services, Appellee-Petitioner, agreement PayPal current user posted procedures eBay dispute resolution online, way of know although we have no Advocates, Inc., Appellee- Child at in effect the versions ing if these were Guardian-ad-Litem. At in this case. time of the transaction No. 49A02-0806-JV-522. any rate, Attaways fail to show us any suggest these documents language within of Indiana. Appeals dispute pro resolution ing that the online 19,2009. March recourse or seller's sole cess is Moreover, the arises. dispute the event a June Transfer Granted any fail cite caselaw which dismissed dispute has been an grounds. on these
lack of
Therefore, fail. argument must this *8 the trial court's denial hereby
We affirm Attaways' motion to dismiss
remand for trial. and remanded.
Affirmed
ROBB, J., concurs.
BROWN, J., separate concurs with
opinion.
BROWN, concurring. Judge but majority opinion
I concur with clarify my concur- separately to
write before specific on the facts
rence is based