Boschetto v. Hansing

compensa- and Hernandez’s Drewr/s BOSCHETTO, Paul Plaintiff- smuggling their role in the alien tion for Appellant, operation depended entirely on cross- illegal those aliens. ing of Jeffrey HANSING; D. Frank-Boucher

y Chrysler Dodge-Jeep; Gordie Boucher Ford; Group, Boucher Automotive jury’s supports Sufficient evidence Defendants-Appellees. Drewry verdict and Hernandez en- No. 06-16595. gaged conspiracy bring illegal aliens from Mexico into the United States United States Appeals, Court of gain for financial and supports their con- Ninth Circuit. remaining victions on the counts save for Argued May Submitted 2008. bringing offenses, substantive two and counts three. We affirm their Aug. Filed convictions on all counts but these two. re-sentencing

We remand the matter for

light disposition. of our Because the advi-

sory guidelines range was calculated tak-

ing into consideration conviction on these counts, procedurally

two the sentence was

erroneous. See Carty, United States v. (9th Cir.2008) (en banc).

Because we cannot conclude this record impose the district court would (though

same sentence on remand it is not so),

restricted from doing part we affirm in all except

as to counts of conviction counts three; part

two and reverse in as to those counts;

two vacate the imposed; sentences re-sentencing.

and remand for See id. PART;

AFFIRMED IN REVERSED PART;

IN REMANDED. Simoncini, Esq.,

Kenneth D. Simoncini Associates, Jose, CA, & plaintiff- San appellant Paul Boschetto. Krohn, Esq.,

Robert G. Roethe Krohn LLP, WA, Pope Edgerton, for defendant- appellee Jeffrey Hansing. D. Background Davis, Smith James I. Factual Timothy C. History Firm, Law Fortner, Davis Procedural

Cameron CA, Francisco, defendants- APC, Francisco, Cali- San in San lives Chrysler Jeffrey Frank-Boueher D. Defendant-Appellee appellees fornia.1 Ford Milton, Boucher Gordie Wisconsin. Hansing resides Dodge-Jeep, Group. Frank-Boucher Defendants-Appellees Boucher Automotive Gordie Boucher Dodge-Jeep,

Chrysler Group Automotive and Boucher Ford Defendants”) corpo- private (“Boucher of busi- principal places their rations Boucher Defen- The in Wisconsin. ness that advertises a website operate dants it although dealerships auto their and PAMELA B. FLETCHER Before: in connected was that website alleged this RYMER, Judges, and Circuit ANN at issue way with transaction the DUFFY,* District KEVIN THOMAS of one employee an Hansing is case. Judge. Defendants, Frank Bouch- Boucher complaint Dodge-Jeep. Chrysler er B. Judge BETTY Opinion 2005, all Defen- August that on avers FLETCHER; by Judge Concurrence a 1964 [] advertised “owned and dants RYMER. ‘Rhp Code’ XL Galaxie 500 Ford 427/425 restored, condition, rust in awesome FLETCHER, Judge: Circuit B. BETTY condition, recently chrome excellent free driven, with clear ready to be re- and presents question a rebuilt appeal This warranty number of title, cir- and vehicle by the unanswered surprisingly mains of an via 4E68R149127.” Does the item courts: sale cuit suf- provide auction site eBay Internet the on the sale was advertised for car support per- to “minimum contacts” ficient site; of a copy auction eBay Internet defen- a nonresident jurisdiction over sonal was attached to eBay listing the portion state? Plaintiff- buyer’s dant eBay list- Id. The complaint. Boschetto’s (“Boschetto”) Paul Boschetto Appellant located the item was ing indicated a 1964 Ford for winning bidder bid Janesville, Boschetto Wisconsin. eBay by the DefendanL- on August Galaxie sold on $34,106 the Galaxie for for Hansing (“Hansing”) Jeffrey eBay that same Appellee, through was notified and for the car to Id. $34,106. arranged winning bidder. Boschetto was the day that he California, via Hansing to communicated shipped from Wisconsin be Boschetto vehicle expec- delivery of the arrange meet his to upon arrival failed email but Bos- to California. description. from Wisconsin advertised tations transport company to court; complaint ultimately hired his in federal chetto sued Wisconsin; it arrived in car in up the jurisdic- pick personal for lack was dismissed September on California affirm. tion. We now determining the court has whether poses Duffy, Senior Kevin Thomas *The Honorable Defendants, jurisdiction over Judge District Southern United States York, allegations sitting by designation. New Boschetto’s District of assumes Bruxelles Compagnie & T v. See AT true. Bos- summary is taken from of facts 1. The Cir.1996). Lambert, 94 F.3d complaint and his affidavit filed chetto’s pur- dismiss. For opposition to motion delivery, Judgment July Boschetto discovered was entered on Upon car was not an “R Code” as timely appeal and this followed. advertised, variety and noted a of other II. Personal including a motor that would not

problems, Jurisdiction over, rust, and extensive dents on the turn We review a dismissal for lack of body of the Id. Boschetto contact- vehicle. personal jurisdiction de Myers novo. See in an attempt ed Offices, Bennett Law those efforts purchase, rescind the but (9th Cir.2001). In opposition to a defen complaint Id. He filed a in United failed. dant’s person motion to dismiss for lack of Court, District Northern States District jurisdiction, al bears the bur February 2006. Boschet- establishing den of alleged four state law causes of action Johnson, proper. Sher v. (violation of the California Consumer Pro- 1357, 1361 If the district Act; contract; misrepre- tection breach of court decides the motion without an evi sentation; fraud), pled here, dentiary hearing, which is the case statute, diversity pursuant to the federal then “the only prima need make a 1332(a). § 28 U.S.C. showing facie facts.” All Defendants moved to dismiss based (citation omitted). Id. Absent an eviden personal jurisdiction. July on lack of On tiary hearing “only this court inquire[s] granted the district court plaintiffs] into whether pleadings [the motion. The district court reasoned that make a prima showing affidavits facie jurisdictionally the lone contact relevant personal jurisdiction.” Caruth v. Int’l California, eBay with an sale consummated Ass’n, Psychoanalytical 127- purchaser, was insuffi- (9th Cir.1995). allega Uncontroverted jurisdiction cient to establish over plaintiffs tions in the complaint must be Although Hansing the Defendants. used T, AT taken as true. See & 94 F.3d at automobile, eBay to market the the district parties 588. “Conflicts between the “eBay court observed that acted not as a contained in statements affidavits must be ‘distribution center’ but rather as a virtual plaintiffs resolved favor.” Schwar exchange forum for the goods,” and that Co., zenegger v. Fred Martin Motor a standard transaction —like the (9th Cir.2004). F.3d appeal goes one at issue in this item —the bidder, highest to whomever is the and so governs When no federal statute “the seller purposefully does not personal jurisdiction, ap the district court doing avail himself of the busi- plies the law of the forum state. See ness in a forum state absent some addi- L.P. Toeppen, Panavision Int’l v. F.3d tional conduct directed at the forum state.” 1316, 1320 California’s Id. long-arm statute is co-extensive with fed standards, may eral so a federal court rejected

The district court also Bosehet- personal jurisdiction doing exercise so request discovery to’s to conduct additional comports with federal constitutional due jurisdiction. relevant Noting Id. its process. Id. at 1320. “For a court to permit deny “broad discretion” to or such jurisdiction personal exercise over a non discovery, the court found that Boschetto’s defendant, resident defendant must request discovery for further prem- have at least ‘minimum contacts’ with the “speculation] ised on without support” discovery yield the additional would relevant forum such that the exercise of jurisdictionally relevant information. ‘does not offend traditional no- ” (9th 1151, 1155 Caddy, 453 F.3d Cir. justice.’ substantial play and of fair

tions 2006) (“[Plaintiffs] fail arguments under (quoting at 801 Schwarzenegger, Washington, Accordingly, we need not prong. first Co. Shoe International L.Ed. remaining prongs].”). two address [the personal (1945)). two forms There three-part of this part For one may exer- state that a forum test, analyzed cases that typically have we gener- a nonresident cise over defendant — Boschet- in contract —as primarily sound jurisdiction. specific al “purposeful avail to’s case does—under latter.2 only with here We deal Schwarzenegger, 374 standard. ment” (“We phrase use the often F.3d at 802 correctly dis- A. The in shorthand fash availment’ ‘purposeful complaint Boschetto’s missed ion, purposeful to include both availment lack of direction, but availment purposeful test to three-part apply We fact, are, two distinct con and direction specific exercise whether the determine analysis is purposeful A availment cepts. defendant a nonresident jurisdiction over sounding suits con most often used in appropriate: tract.”) (internal omitted); see also citation defendant must The non-resident McGlinchy v. Chemical Shell activities or con- his direct purposefully Cir.1988) (distinguishing pur with the fo- some transaction summate “per precedents poseful direction thereof; perform resident rum or a contract sought is on sonal purposefully he avails act which some claim”). claim, a tort To have not on conducting privilege the himself of privilege the itself of purposefully availed forum, thereby invoking in the activities forum, a in the defendant doing business laws; of its the benefits type some of affir “performed must have (2) one which claim must be arises the promotes allows or mative conduct which fo- relates to the defendant’s out of or business within the fo the transaction of activities; and rum-related (inter Sher, 911 F.2d at 1362 rum state.” jurisdiction must exercise of the omitted). and citation quotation nal marks play with fair substantial comport signifi jurisdictional of the Our evaluation be reasonable. justice, i.e. it must contract or other cance of a defendant’s Lake, (citing 817 F.2d Id. at 802 Lake rigid is not business (9th Cir.1987)). plaintiff 1421 formalistic, practical prag rather but prongs. first two the burden on'the bears Corp., 471 U.S. at Burger King matic. prongs both plaintiff Id. If the establishes (“[W]e empha 2174 have 105 S.Ct. two, the must come one and defendant ap highly for a realistic sized the need “compelling case” that with a forward that contract is or recognizes proach rea- jurisdiction would not be exercise of step serving dinarily but an intermediate Burger King Corp. (quoting Id. sonable. negotiations with up prior to tie business Rudzewicz, 462, 476-78, 471 105 U.S. consequences which themselves are future (1985)). But 85 L.Ed.2d 528 S.Ct. object the business transac the real step, fails the first tion.”) (internal marks and cita quotation and the inquiry ends case Lake, omitted); F.2d at tion Pebble Beach Co. be dismissed. See must does summarily, diction in California. and correct- 2. The district court district court’s challenge aspect of the ly, rejected contention that the Boschetto’s appeal. order subject general juris- dismissal Defendants could be (“The opposition his affidavit in step specific point first to dismissal analysis qualitative any continuing involves a evaluation to commitments assumed with the forum by of the defendant’s contact the Defendants under the contract. added). state.”) so, (emphasis doing we performance Nor did of the contract re admo- guided Supreme Court’s quire the Defendants to engage that the formation of a contract with nition substantial business in California. On not, standing a nonresident defendant facts, Boschetto’s version of the funds alone, sufficient to create were sent to arrangements Wisconsin and Burger King Corp., 471 U.S. at pick were made to up the car there and (“If question is whether an S.Ct. was, have it delivered California. This individual’s contract with an out-of-state observed, as the a “one-shot party automatically alone can establish CompuServe, affair.” See Inc. v. Patter minimum contacts in the other sufficient son, As forum, party’s home we believe the answer Supreme expressly Court has cau cannot.”) clearly (emphasis tioned, a contract alone does not automati original); McGlinchy, see F.2d at also cally establish minimum contacts (same). n. 9 plaintiffs home forum. Burger King 2174; Corp., 471 U.S. at 105 S.Ct. see Here, step Boschetto fails at one Corp., also Doe v. Unocal jurisdiction, specific of the test for as the (9th Cir.2001) (“However, an individu lone transaction for the sale of one item party al’s contract with an out-of-state does not establish that the Defendants automatically alone establish suffi [cannot] purposefully availed themselves of the support person cient minimum contacts to doing business California. (internal jurisdiction.”) al quotation marks arrangement between Boschetto and omitted); and citations Travelers cf. is, bottom, contract for of Va., Health Ass’n v. Commonwealth good, the sale of a is insufficient to have 94 L.Ed. 1154 created substantial connection with Cali if (purposeful availment found “busi (and assuming arguendo fornia. beyond ness activities reach out one state they any that had involvement continuing relationships and create and Defendants) transaction, the Boucher did ”) added).3 obligations (emphasis any ongoing obligations not create with California; Ignoring Boschetto in once car the limited nature of the trans- the was issue, parties sold the action at Boschetto attaches go separate special were their ways. complaint significance Neither Boschetto’s nor to the fact that the transaction rather, Burger King qualitative In Court noted that even a it to the the looked content it, "single by support act” the defendant can nature of the contract before and reasoned jurisdiction, only gave ongoing but that act creates a that the contract rise to obli- gations "substantial with the connection” forum. that connected the defendant with the (quoting Ap- 471 U.S. at 476 n. 105 S.Ct. 2174 Id. at 78 S.Ct. 199. forum state. here, plied McGee Int’l Ins. 355 U.S. it is not the fact that Defendants Life (1957)). may only 2 L.Ed.2d 223 have entered into one contract with is, however, dispositive. Court's reliance on McGee tell- a California resident that is Rath- McGee, er, ing. suggested In the record there it is the fact that the nature of the contract only any was one contract between the defendant entered into did not create "substantial any California resident. 355 U.S. at between and the De- connection” Boschetto ("It beyond S.Ct. 199. But the Court did the not decide fendants contract itself. Id. jurisdictional quantitative purposes process the issue on a as- sufficient for of due that the sessment of the number of the de- on a which had sub- contracts suit was based contract state; State.”). fendant had entered into in the forum stantial connection with that the Cybersell, application noting superficial that eBay, via consummated

was engen- eBay listing process and the sale viewed have been listing could eBay the (noting the lack Id. (or any ders is “interactive.” other state in California anyone that matter) suggesting But the defendant’s access. of evidence with Internet that genera- business as the conduit website resulted eBay was used that fact tion). noted, “the But, affect the not the sale does personal has outcome, particular not on the the court at least issue is not whether intermediary here. the jurisdiction over presented facts personal it has but whether Cybersell, Inc. Cybersell, business an who conducted over individual (9th Cir.1997), we discussed cases Cybersell and related eBay.” In analysis that sliding scale approval with actually belongs site the Internet Internet web- an how interactive looks defendant, the na- by the operated and is determining ju- its purposes of is for site jurisdictional sig- has ture of the website (“In sum, the common effect. risdictional the the website allows nificance because court in thread, the district well stated ongoing con- to maintain some defendant that that the ‘likelihood Zippo, is (as every well as the state tact with constitutionally exer- can be site). that can access the state other to the na- directly proportionate cised is (“We are F.Supp. at 1125-26 Zippo, activity commercial quality of the ture Dot to determine whether being asked over the Inter- entity an conducts electronic commerce conducting Corn’s ”) Zippo Mfg. Co. v. (quoting Zippo net.’ Pennsylvania residents constitutes (W.D.Pa. Com, F.Supp. Dot doing business availment of purposeful 1997)). Cybersell relied on Here, listing Pennsylvania.”). operated a the defendant fact part of broader e-commerce activi- website, the forum accessible listing temporarily advertised ty; infringing trademarks. allegedly contained listing closed once for sale good at 416. The defendant’s website sold, thereby extinguishing item was but did allow its services advertised for this transaction the Internet contact via the site. to transact parties business (and every within the forum state other interactivity Noting lack of at 419. forum).4 website, the court con- defendant’s no had “done act that the defendant cluded Moreover, allege does not transaction, no nor consummated [] using eBay the Defendants are of pur- it act which performed has He does generally. to conduct business of availed itself posefully conduct allege regular not Defendants Arizona, activities, thereby conducting (or else) anywhere via sales California invoking the benefits own affidavit he eBay. Based on his named law.” Id. Arizona “good on a Boucher based Defendants Hansing may have been faith belief’ persuasive Cybersell while analysis, But during the sale. acting as their agent consideration the contact under is allege informa- go he does not itself, on largely inapplicable in website is —on otherwise—that either tion and belief Here, eBay or was used create case. Boucher Hansing or the Defendants good. a Based on a listing for the sale a 1515, (9th Cir.1983); Holland analysis, 705 1522 Under a 4. traditional America, Line, advertising typically North in a state does v. Wartsila America Inc. 450, Cir.2007). personal jurisdiction. suffice to establish Commerce, Santa Chamber Woodv. Barbara analyses upended simply to al are not be eBay platform sales regular users of technological cause a case devel involves their cars.5 sell opments parties that make it easier for difference, with a as a distinction This is reach across state lines. Worldr-Wide that have found that the cases Woodson, Volkswagen v. 444 U.S. eBay relied based on sales proper was 580, 100 S.Ct. 62 L.Ed.2d 490 fact that the defendant was heavily on the (“[W]e accepted proposition have never a vehicle for using platform as broader jurisdic that state lines are irrelevant for See, Crummey activity. e.g., commercial we, purposes, tional nor could and remain (Ct.App.La. Morgan, 965 So.2d principles faithful to the of interstate fed 2007) (evidence to Loui- prior of two sales Constitution.”). eralism embodied in the prior year); Dedvukaj siana residents eBay The use of no doubt made it far Maloney, F.Supp.2d 822-23 buyer, to reach a but the easier (E.D.Mich.2006) (“Although the Court’s re- ease with Boschetto was contacted any personal ju- has not disclosed search does determine whether the nature involving eBay the use of risdiction cases quality of the Defendants’ contacts primary auctions as a commercial seller’s support serve to That is not vehicle, it clear from the rec- marketing is say eBay digs that the use of a virtual eBay regu- that Defendants’ use of is ord defendant, fending moat around the off systemic.”); Esposito, lar and Malcolm v. eBay in all cases. Where (Va.Cir.Ct. *4 at Dec. 2003 WL 23272406 a establishing regular used as means for 2003) (“Defendants are commercial a business with remote forum such who, at the time the sellers automobiles finding comports sold, eBay represented were on BMW fair play with “traditional notions of transactions.”). ‘power sellers’ with 213 as justice,” substantial International Shoe bottom, At the consummation of Co., 326 U.S. then the sale via here is distraction from eBay may properly defendant’s use of be was a one-time con the core issue: This purposes taken into account for of estab good tract for the sale of a that involved lishing personal jurisdiction. See Crum only that is where the forum state because 500; mey, Dedvukaj, 965 So.2d at reside, happened to but oth purchaser 822-23; Malcolm, F.Supp.2d at 2003 WL connection” erwise created no “substantial at *4. But on the facts of this McGee, ongoing obligations there. See case—a one-time transaction —the use S.Ct. 199. The Su 355 U.S. the conduit for that transaction has, in preme past, any dispositive Court sounded a not have effect on does jurisdiction- jurisdiction.6 note of caution that traditional Walser, 15 Misc.3d 835 N.Y.S.2d It is for this reason that Boschetto's reliance LLC, (N.Y.Civ.Ct.2007)("No Stomp, F.Supp.2d pro- evidence was Inc. v. NeatO (C.D.Cal.1999) misplaced. Stomp, overall vided Plaintiff as to Defendant’s statistics, portal eBay experience, any marketing a the defendant used its own website as or sales, customers, designed potential for on-line and the defendant consum- directed at for instance, of mated least "small” number sales New Yorkers to welcome bids from may the forum state. Id. at 1078. any that indicate Defendant or other acts specifically purposely availing himself to be any New or desire to the business of Yorkers We note that our affirmance of the district law.”); advantage New York Gossett v. take of court’s dismissal is in-line with a number of HBL, LLC, (D.S.C. *2 2006 WL 1328757 at court decisions that have addressed state 11, 2006) ("[Defendant's] May personal jurisdiction mere list- whether can be estab- jurisdic- single eBay ing eBay enough to invoke way transaction on is not lished Voss, Carolina.”); plaintiff. e.g., Sayeedi v. in South Karstetter v. with a forum See tion an abuse of discretion. abuse its was not did not court district B. The v. by denying Local No. SDC Boschetto’s Butcher’s Union discretion discovery. (9th Cir.1986) jurisdictional Inn, Inc., request for court did not abuse (holding that district decision to court’s A district dis- refusing jurisdictional its discretion discovery is jurisdictional deny or permit only that plaintiffs covery where “state of discretion. See abuse for reviewed them to discovery will enable they ‘believe’ Assoc., Disc, Systems Tech. Inc. Data business sufficient California demonstrate n. 1 Cir. F.2d establish the court’s contacts to 1977). pro court’s refusal The jurisdiction”). not be reversed discovery, “will vide such showing that de the clearest except upon III. Conclusion in actual and sub discovery results nial of liti complaining prejudice to stantial eBay automobile via The of one sale may appropriately Discovery be gant. website, more, provide does not without bearing on pertinent facts granted where establish “minimum contacts” to sufficient controvert question a nonresident defendant jurisdiction over satisfactory showing of a more ed or where Likewise, given the state. necessary.” (citing Wells is facts allega- or evidence total absence Fargo Express & Co. Wells Fargo conduct here involved more tions that (9th Cir.1977)). n. 24 sale, just one the district than its dis- did not abuse district court by refusing to its discretion did not abuse request by denying Boschetto’s cretion jurisdictional discovery. allow discovery. does Boschetto AFFIRMED. the Boucher Defendants’ that allege sales, is used to conduct dealership website RYMER, Judge, concurring: Circuit by potential be viewed it can merely that I lacking. agree I Moreover, does not customers. my dis- separately write underscore made any of Defendants allege that argument that agreement with Boschetto’s listings posted sales or any other eBay, necessarily Hansing, as a seller after the initiation of the either before doing availed himself jurisdictionally might be lawsuit. While I state across the nation. business each if or the Boucher Defen- relevant establish a defendant does not believe signifi- dants had used conduct by fisting an contacts nationwide minimum automobile sales to Cali- cant quantity rather, eBay; must do item for sale on he states, or in other neither fornia residents more,” individually such as tar- “something al- complaint nor his affidavit Boschetto’s particular of a to be geting residents are en- lege any of the Defendants haled into another of Bos- gaged such sales. denial principles The basic are well settled. discovery, request chetto’s proper it is con- Personal than a that it on little more hunch based facts, long-arm the forum state’s jurisdictionally sistent might yield relevant with ("There appears ("Finally, (Tex.App.2006) what 184 S.W.3d appellees traveled to nature of this was no evidence be the transaction isolated engaged Kansas or in other transactions the defen- evidence that the absence appellant either or other Kansas residents against seller dant a commercial militate otherwise.”); through service or jurisdiction.”). finding a of Lawson, 35, A.2d 148 N.H. 802 v. Metcalf

1021 “purposefully either have pro- with due defendant must comports if it statutes and availed” himself of the of con- Fund Ins. Co. v. of law. Fireman’s cess forum, 888, ducting in the thus invok- activities 103 F.3d 893 Coops., Bank Nat’l of laws, Cir.1996). ing the benefits and of its (9th long-arm stat- California’s his activi- “purposefully or have directed” juris- ute extends the exercise Schwarzenegger ties toward the forum. Har- process. to the limits of due diction Co., 797, Fred Motor 374 F.3d Martin 807 Servs., Inc. v. Bell & Rutsky Co. Ins. ris & (9th Ltd., 1122, 1129 Clements Cir.2003) Pro. (citing CaLCode Civ. A him- “purposefully defendant avails” 410.10). satisfied, process § For due to be way acts in a self of a forum when he “minimum con- a must have defendant a with the creates “substantial connection” that the

tacts” with the forum state such 475, King, 471 at Burger U.S. not offend “does assertion 2174, also Kulko v. S.Ct. see play fair and sub- traditional notions of Court, 84, 94, n. Superior U.S. Co. v. Cad- justice.” Pebble Beach stantial (1978), 1690, 56 L.Ed.2d 132 S.Ct. Cir.2006) (cit- dy, 453 F.3d deliberately engages signifi- where he Washington, 326 U.S. ing Int’l Shoe Co. v. there, cant activities Keeton v. Hustler (1945)). 310, 315, 154, 90 L.Ed. 95 66 S.Ct. Inc., Magazine, 465 U.S. (1984), S.Ct. 79 L.Ed.2d 790 or cre- test to applies three-part

This circuit him- “continuing obligations” ates between plaintiff has demon- determine whether self and its residents. Travelers Health minimum contacts to es- strated sufficient 643, 648, 70 Virginia, Ass’n v. 339 U.S. a defen- specific tablish (1950). In return 94 L.Ed. 1154 S.Ct. are found where: dant. Minimum contacts taking advantage of the forum state’s (1) performed the defendant has some the defendant protections,” “benefits and transaction act or consummated some being sued must submit to burden purpose- the forum or otherwise within 475-76, King, 471 Burger there. privileges of the fully availed himself 105 S.Ct. (2) forum, activities in the conducting

the claim arises out of or results from “purposefully A directs” activ- defendant activities, forum related (1) the defendant’s he: commits ity at a forum state when (3) (2) the exercise act, expressly an intentional reasonable. state, and that aimed at the forum likely harm that he knows is to be causes Masters, (citing & Bancroft See Schwar- suffered Nat’l Augusta Inc. v. (citing zenegger, 374 F.3d at 803 Colder (9th Cir.2000)). bears Jones, 465 U.S. satisfying the first two the burden (1984)). “effects L.Ed.2d Under this test, and the defendant bears prongs test,” it that the defendant is not sufficient third. Id. Boschetto the burden on the action with a foreseeable effect took prong. short on the first falls He must do Id. at 804-05. forum state. requirement “purposeful availment” for courts to conclude “something more” that a defendant will not be haled ensures activity aimed” at the “expressly that he jurisdiction solely as a result of into forum, individually targeting its such as “random,” “fortuitous,” or “attenuated” 805; Beach Id. at Pebble residents. Corp. v. Rudzew Burger King contacts. 453 F.3d at 1157. icz, 462, 475-76, 105 S.Ct. 471 U.S. omitted). (1985) (citations view, Hansing purposeful- my did L.Ed.2d 528 ly avail himself of California. have refined this to mean We way into the product will find its that continuing obligations Cali- no created Rather, defen- it is that the forum State. eBay. by selling his car on fornia residents and connection with the dant’s conduct complete was to obligation only His that should rea- are such he State bidder, and whoever highest sale with sonably anticipate being haled into court be, Hansing ful- might he wherever there.”) (citations omitted). to retrieve the allowing Boschetto filled Hansing pur think that I also do not Janesville, Nor did Wisconsin. car in activity posefully any directed at Califor establish a sub- Hansing’s eBay auction Hansing di argues nia. Boschetto that between himself connection stantial his auction at the state rected he invoked the bene- that California such bidding. from failing to bar Californians laws. There is its fits and states, all he con By accepting bids from engaged ongo- that he is suggestion no tends, subject to sell the Hansing offered there,1 though a activities ing business to residents of each state vehicle ultimately highest made the Californian union, including disagree I California. bids, fortuity; was a Boschetto fifty this allowing eBay throughout users Hansing had argue not either does to bid on an United States Canada high location over the bidder’s any control subjects auction the seller to nationwide States, high or that the within the United held, jurisdiction. previously As we have any had effect on Hans- residence bidder’s merely advertising the Internet is not given Hansing’s require- ing’s obligations, jurisdiction throughout sufficient to confer up high pick bidder either ment that the States, though the adver the United even or, did, as Boschetto the car Wisconsin may or website at issue be tisement third-party ship it for a some- arrange Co., viewed nationwide. Pebble Beach Volkswagen else. World-Wide Inc., 1157-58; Cybersell, 130 F.3d F.3d Woodson, 286, 297-99, Corp. do “some at 419-20.2 The defendant must (1980) (“the 580, 62 L.Ed.2d 490 activity expressly more” to aim at a thing 419; critical to due foreseeability that is Peb Cybersell, [the] 130 F.3d 1156-57,3 mere likelihood ble Beach 453 F.3d at analysis is process nationally concluding available auctions without re- that Hans- hold 1. There is no basis ing engaged activity quiring them to submit to nation- in extensive business Internet, buyers A other wide is beneficial to as well. less- on the encourages rule Cybersell, Cybersell, Inc. v. burdensome forum. See place, Al- sellers to hold auctions in the first 130 F.3d 419-20 creating opportunities buyers though points Stomp, thereby Inc. NeatO, LLC, they F.Supp.2d want and to decide for them- find items (C.D.Cal.1999), accept taking all suggestion I do not its selves relevant matters whether — place conducting any they want to a bid. business over the Inter- into account— subjects net a defendant to suit nationwide. Properties, Rio Inc. v. Rio Int’l 3.See also Interlink, Cir.2000) (9th argues 2. Boschetto should not (no passive advantage website take of modern tech- based be allowed to Int'l, more”); "something nology simultaneously escaping without Panavision while tradi- However, jurisdiction. Toeppen, we L.P. v. tional notions Cir.1998) rejected argument Cybersell, (posting website on internet does precise nationwide); and Haling Hansing 130 F.3d at 419. into Cali- not establish (foresee- Schwarzenegger, 374 F.3d at 806-07 fornia would be inconsistent with traditional event, print advertisement Cal- I am able effect of Ohio notions of advertisement "ex- persuaded by ifornia did not render Boschetto’s characterization California); Bancroft, Hansing's pressly aimed” at use of the Internet to sell his car cf. (letter registrar, "taking advantage.” Allowing at 1084 to domain sellers to

1023 the car to a California resi- mately sold that Hans- either has not shown of dent, residents auction the he neither availed himself his to ing tailored he sent or or that particular, any doing state business par- any to state his auction advertised activity directed at purposefully nor Arguably, ticular, much less California.4 state.6 the resi- that California could foresee Hansing not I that the court did agree district auction, that he and bid on his dents would by denying Boschetto its discretion abuse but participation, from their would benefit here, Where, discovery. as by participation Californians foreseeable jurisdiction is claim of plaintiffs must have done enough. Hansing not allega- and based on bare attenuated both auction ex- more to aim his something individually by specific by denials made rebutted the tions pressly at such defendants, Pebble residents.5 the court need not targeting California the the facts F.3d at 1157. On 453 discovery. Beach Pebble even permit limited case, more. He nothing did he of this Co., 453 F.3d 1160. Beach eBay access those with simply permitted and Canada the United States

throughout car, the agreeing to let win-

to on his bid Janesville, it in Wisconsin.

ner retrieve his although Hansing listed

Accordingly, eBay auc- in an unrestricted

car sale

tion, all to view allowing residents of states bid, ulti- though he and

the auction and approach the regis- consistent with the use of plaintiff's with 6.This interfered domain, plain- listing targeted independently majority to address whether tered of courts Neaves, tiff); Metropolitan Ins. Co. v. and eBay requires sale on an item for nationwide Life 1062, Cir.1990) (fraudu- 1065 e.g. to nationwide. See a seller to submit suit was in forum state letter sent to lent Collection, McCauley, 105 Ltd. v. Winfield aiming). express 746, (E.D.Mich.2000) (eBay F.Supp.2d 749 attenuated); sales are random and Metcalf Hansing knew Boschetto was 4. Even 1221, Lawson, 1226 148 N.H. 802 A.2d post-auction when he California email, sent (2002) (seller over ultimate had no control subject to email was not sufficient Voss, winner); 184 S.W.3d Karstetter It personal jurisdiction there. estab- him (contact (Tex.Ct.App.2006) with Kansas 405 contact, Hansing and only a limited lished random, fortuitous); Action auction, isolated won the it because Boschetto sent 3:05-CV-1239, Ebert, Burger Tapes, Inc. v. No. he was in not because California. King Corp., 471 105 S.Ct. U.S. Dist. LEXIS WL 9, 2006) (N.D.Tex. (eBay do sellers Feb. Hansing purposefully avail himself did 5. Nor site); Cut- interactivity United control of California the benefits CCB-03-1723, NFZ, Inc., lery Corp. v. No. allowing His auction Californians bid. U.S. Dist. LEXIS WL connection not create substantial did (D.Md. 2003) (intent sell was to Dec. forum, indi- nothing in the record location); bidder, highest irrespective that made cates difference HBL, LLC, *2 WL Gossett v. (within winning resided bidder (“mere (D.S.C.2006) listing eBay is Canada) where he took States or United ....”); enough to invoke World-Wide car when it left Wisconsin. Walser, Sayeedi v. 15 Misc.3d 295-97, Volkswagen, 444 U.S. at (ultimate (N.Y.C.Civ.Ct.2007) N.Y.S.2d (no jurisdiction auto distributor completely deter- item destination to drive to on customer's decision state). based bidders). mined

Case Details

Case Name: Boschetto v. Hansing

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 20, 2008

Citation: 539 F.3d 1011

Docket Number: 06-16595

Court Abbreviation: 9th Cir.