Holland v. Hurley - 5/19/2009

Plaintiff, an Arizona resident, purchased from Defendant, a Michigan resident, a 1976 Cadillac sedan through an eBay online auction.  Plaintiff took delivery in Michigan and had the car transported to Arizona.  After discovering that the vehicle required repairs, Plaintiff filed suit in Arizona, alleging that Defendant’s eBay listing included misrepresentations.

The trial court granted Defendant’s motion to dismiss for lack of personal jurisdiction in Arizona.  Plaintiff appealed.

The Arizona Court of Appeals, Division Two, affirmed.  The Court agreed that Plaintiff had failed to carry his burden to demonstrate Defendant’s purposeful availment of the Arizona market, as necessary for a finding of specific personal jurisdiction.  There was no evidence in the record of any other sales by Defendant to Arizona.

The Court declined to find that, by listing an item for sale on eBay, a seller purposefully avails himself of the market in all 50 states for purposes of personal jurisdiction.  The Court also declined to adopt the “sliding scale” test for minimum contacts through Internet activity set forth by Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997).  That sliding scale varies depending on whether an Internet site is active or passive.  The Court found the Zippo test inapplicable because Defendant did not own eBay or exercise control over its level of interactivity.

The Court also declined to apply the “purposeful direction” test for minimum contacts adopted by Calder v. Jones, 465 U.S. 783 (1984), for cases involving intentional torts.  The Court found that Plaintiff had not urged application of that test below or on appeal, and that the record was inadequate to apply the test.

Finally, the trial court did not err in denying Plaintiff’s request to allow discovery relating to personal jurisdiction.   Plaintiff had failed to request any discovery on that issue during the nearly three months that passed between the filing of the Answer and the motion to dismiss, or in the subsequent nearly three months before the hearing on the motion to dismiss.  The trial court thus did not abuse its discretion by denying Plaintiff’s untimely request to conduct discovery.

Chief Judge Pelander wrote the opinion, joined by Judge Howard.  Judge Espinosa separately concurred, stating that a single sale through a “nationally promoted and nationally available forum such as eBay” may well constitute purposeful availment in all 50 states, but that he could not reach that conclusion from the bare record presented.