Boschetto v. Hansing

RYMER, Circuit Judge,

concurring:

I agree that jurisdiction is lacking. I write separately to underscore my disagreement with Boschetto’s argument that Hansing, as a seller on eBay, necessarily availed himself of the privilege of doing business in each state across the nation. I believe that a defendant does not establish minimum contacts nationwide by fisting an item for sale on eBay; rather, he must do “something more,” such as individually targeting residents of a particular state, to be haled into another jurisdiction.

The basic principles are well settled. Personal jurisdiction is proper if it is consistent with the forum state’s long-arm *1021statutes and if it comports with due process of law. Fireman’s Fund Ins. Co. v. Nat’l Bank of Coops., 103 F.3d 888, 893 (9th Cir.1996). California’s long-arm statute extends the exercise of personal jurisdiction to the limits of due process. Harris Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1129 (9th Cir.2003) (citing CaLCode Civ. Pro. § 410.10). For due process to be satisfied, a defendant must have “minimum contacts” with the forum state such that the assertion of jurisdiction “does not offend traditional notions of fair play and substantial justice.” Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1155 (9th Cir.2006) (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 315, 66 S.Ct. 154, 90 L.Ed. 95 (1945)).

This circuit applies a three-part test to determine whether a plaintiff has demonstrated sufficient minimum contacts to establish specific jurisdiction over a defendant. Minimum contacts are found where:

(1) the defendant has performed some act or consummated some transaction within the forum or otherwise purposefully availed himself of the privileges of conducting activities in the forum, (2) the claim arises out of or results from the defendant’s forum related activities, and (3) the exercise of jurisdiction is reasonable.

Id. at 1155 (citing Bancroft & Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d 1082, 1086 (9th Cir.2000)). The plaintiff bears the burden of satisfying the first two prongs of the test, and the defendant bears the burden on the third. Id. Boschetto falls short on the first prong.

The “purposeful availment” requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of “random,” “fortuitous,” or “attenuated” contacts. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-76, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (citations omitted). We have refined this to mean that the defendant must either have “purposefully availed” himself of the privilege of conducting activities in the forum, thus invoking the benefits and protections of its laws, or have “purposefully directed” his activities toward the forum. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 807 (9th Cir.2004).

A defendant “purposefully avails” himself of a forum when he acts in a way that creates a “substantial connection” with the state, Burger King, 471 U.S. at 475, 105 S.Ct. 2174, see also Kulko v. California Superior Court, 436 U.S. 84, 94, n. 7, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978), as where he deliberately engages in significant activities there, Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 781, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984), or creates “continuing obligations” between himself and its residents. Travelers Health Ass’n v. Virginia, 339 U.S. 643, 648, 70 S.Ct. 927, 94 L.Ed. 1154 (1950). In return for taking advantage of the forum state’s “benefits and protections,” the defendant must submit to the burden of being sued there. Burger King, 471 U.S. at 475-76, 105 S.Ct. 2174.

A defendant “purposefully directs” activity at a forum state when he: (1) commits an intentional act, that is (2) expressly aimed at the forum state, and that (3) causes harm that he knows is likely to be suffered in that jurisdiction. See Schwarzenegger, 374 F.3d at 803 (citing Colder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984)). Under this “effects test,” it is not sufficient that the defendant took action with a foreseeable effect in the forum state. Id. at 804-05. He must do “something more” for courts to conclude that he “expressly aimed” activity at the forum, such as individually targeting its residents. Id. at 805; Pebble Beach Co., 453 F.3d at 1157.

In my view, Hansing did not purposefully avail himself of California. Hansing *1022created no continuing obligations to California residents by selling his car on eBay. His only obligation was to complete the sale with the highest bidder, whoever and wherever he might be, which Hansing fulfilled by allowing Boschetto to retrieve the car in Janesville, Wisconsin. Nor did Hansing’s eBay auction establish a substantial connection between himself and California such that he invoked the benefits and protections of its laws. There is no suggestion that he is engaged in ongoing business activities there,1 and though a Californian ultimately made the highest of fifty bids, this was a fortuity; Boschetto does not argue either that Hansing had any control over the high bidder’s location within the United States, or that the high bidder’s residence had any effect on Hans-ing’s obligations, given Hansing’s requirement that the high bidder either pick up the car in Wisconsin or, as Boschetto did, arrange for a third-party to ship it somewhere else. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297-99, 100 S.Ct. 580, 62 L.Ed.2d 490 (1980) (“the foreseeability that is critical to [the] due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.”) (citations omitted).

I also do not think that Hansing purposefully directed any activity at California. Boschetto argues that Hansing directed his eBay auction at the state by failing to bar Californians from bidding. By accepting bids from all states, he contends, Hansing offered to sell the subject vehicle to residents of each state of the union, including California. I disagree that allowing eBay users throughout the United States and Canada to bid on an auction subjects the seller to nationwide jurisdiction. As we have previously held, merely advertising over the Internet is not sufficient to confer jurisdiction throughout the United States, even though the advertisement or website at issue may be viewed nationwide. Pebble Beach Co., 453 F.3d at 1157-58; Cybersell, Inc., 130 F.3d at 419-20.2 The defendant must do “something more” to aim activity expressly at a state, Cybersell, 130 F.3d at 418, 419; Pebble Beach Co., 453 F.3d at 1156-57,3 and *1023Boschetto has not shown either that Hans-ing tailored his auction to the residents of any state in particular, or that he sent or advertised his auction to any state in particular, much less California.4 Arguably, Hansing could foresee that California residents would bid on his auction, and that he would benefit from their participation, but foreseeable participation by Californians is not enough. Hansing must have done something more to aim his auction expressly at the state, such as individually targeting California residents.5 Pebble Beach Co., 453 F.3d at 1157. On the facts of this case, he did nothing more. He simply permitted those with eBay access throughout the United States and Canada to bid on his car, agreeing to let the winner retrieve it in Janesville, Wisconsin.

Accordingly, although Hansing listed his car for sale in an unrestricted eBay auction, allowing residents of all states to view the auction and bid, and though he ultimately sold the car to a California resident, he neither availed himself of the privilege of doing business in California nor purposefully directed any activity at the state.6

I agree that the district court did not abuse its discretion by denying Boschetto jurisdictional discovery. Where, as here, a plaintiffs claim of personal jurisdiction is both attenuated and based on bare allegations rebutted by specific denials made by the defendants, the district court need not permit even limited discovery. Pebble Beach Co., 453 F.3d at 1160.

. There is no basis for concluding that Hans-ing is engaged in extensive business activity on the Internet, with California or any other forum. See Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 419-20 (9th Cir.1997). Although Boschetto points to Stomp, Inc. v. NeatO, LLC, 61 F.Supp.2d 1074, 1077 (C.D.Cal.1999), I do not accept its suggestion that conducting any business over the Internet subjects a defendant to suit nationwide.

. Boschetto argues that Hansing should not be allowed to take advantage of modern technology while simultaneously escaping traditional notions of jurisdiction. However, we rejected this precise argument in Cybersell, 130 F.3d at 419. Haling Hansing into California would be inconsistent with traditional notions of jurisdiction. In any event, I am not persuaded by Boschetto’s characterization of Hansing's use of the Internet to sell his car as "taking advantage.” Allowing sellers to hold nationally available auctions without requiring them to submit to jurisdiction nationwide is beneficial to buyers as well. A less-burdensome jurisdictional rule encourages sellers to hold auctions in the first place, thereby creating opportunities for buyers to find items they want and to decide for themselves whether — taking all relevant matters into account — they want to place a bid.

.See also Rio Properties, Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1020 (9th Cir.2000) (no jurisdiction based on passive website without "something more”); Panavision Int'l, L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir.1998) (posting website on internet does not establish jurisdiction nationwide); and Schwarzenegger, 374 F.3d at 806-07 (foreseeable effect of Ohio print advertisement in California did not render advertisement "expressly aimed” at California); cf. Bancroft, 223 F.3d at 1084 (letter to domain registrar, *1023which interfered with plaintiff's use of registered domain, independently targeted plaintiff); and Metropolitan Life Ins. Co. v. Neaves, 912 F.2d 1062, 1065 (9th Cir.1990) (fraudulent letter sent to plaintiff in forum state was express aiming).

. Even if Hansing knew Boschetto was in California when he sent the post-auction email, the email was not sufficient to subject him to personal jurisdiction there. It established only a limited contact, and Hansing sent it because Boschetto won the auction, not because he was in California. See Burger King Corp., 471 U.S. at 474, 105 S.Ct. 2174.

. Nor did Hansing purposefully avail himself of the benefits and protections of California by allowing Californians to bid. His auction did not create a substantial connection with the forum, and nothing in the record indicates that it made any difference to Hansing where the winning bidder resided (within the United States or Canada) or where he took the car when it left Wisconsin. World-Wide Volkswagen, 444 U.S. at 295-97, 100 S.Ct. 580 (no jurisdiction over auto distributor based on customer's decision to drive to the forum state).

.This is consistent with the approach of the majority of courts to address whether listing an item for nationwide sale on eBay requires a seller to submit to suit nationwide. See e.g. Winfield Collection, Ltd. v. McCauley, 105 F.Supp.2d 746, 749 (E.D.Mich.2000) (eBay sales are random and attenuated); Metcalf v. Lawson, 148 N.H. 35, 802 A.2d 1221, 1226 (2002) (seller had no control over ultimate winner); Karstetter v. Voss, 184 S.W.3d 396, 405 (Tex.Ct.App.2006) (contact with Kansas was random, isolated and fortuitous); Action Tapes, Inc. v. Ebert, No. 3:05-CV-1239, 2006 WL 305769, 2006 U.S. Dist. LEXIS 4958 (N.D.Tex. Feb. 9, 2006) (eBay sellers do not control interactivity of eBay site); United Cutlery Corp. v. NFZ, Inc., No. CCB-03-1723, 2003 WL 22851946, 2003 U.S. Dist. LEXIS 21664 (D.Md. Dec. 1, 2003) (intent was to sell to highest bidder, irrespective of location); Gossett v. HBL, LLC, 2006 WL 1328757, *2 (D.S.C.2006) (“mere listing on eBay is not enough to invoke jurisdiction ....”); and Sayeedi v. Walser, 15 Misc.3d 621, 835 N.Y.S.2d 840 (N.Y.C.Civ.Ct.2007) (ultimate destination of eBay item completely determined by bidders).