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If I live in a different state than the vendor of a good that I
purchased and I need to file a suit which state am I required to file
it in?
Thanks
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If I live in a different state than the vendor of a good that I
purchased and I need to file a suit which state am I required to file
it in?
In my state and maybe in yours, small claims court is not available against
a defendant that cannot be served within the state. So one option would be
to file suit in small claims in the home state of the seller.
If the amount in dispute is large enough to justify using a superior court
suit, you have the right to file suit in your home state if the defendant
has sufficient contracts with your state to support jurisdiction of your
local court. Here are two extreme examples: If the defendant has an office
in your state, that would be enough contact. If the defendant has no
contact with your state other than a practice of selling to customers in
your state using only the internet, that would not be enough contact.
If you cannot serve the defendant in your state and the defendant doesn't
have the required minimum contacts, then sue in the defendant's home state.
This answer must not be relied on as legal advice for the reasons posted
here: http://mcgyverdisclaimer.blogspot.com . And I am not your attorney.
McGyver
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Thanks for the advice. The amount is 300 dollars so filing in NY, with
myself in TN, is not cost effective. I thought I would ask and I
appreciate the advice. I will keep it in mind if I ever need it again.
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On Thu, 20 Dec 2007 15:28:36 GMT, "McGyver" <Greyprof@msn.com> wrote:
If the amount in dispute is large enough to justify using a superior court
suit, you have the right to file suit in your home state if the defendant
has sufficient contracts with your state to support jurisdiction of your
local court. Here are two extreme examples: If the defendant has an office
in your state, that would be enough contact. If the defendant has no
contact with your state other than a practice of selling to customers in
your state using only the internet, that would not be enough contact.
Generally, selling through the Internet to residents of another state
is enough to establish personal jurisdiction over the seller. Here's
a snippet from an unpublished 6th Circuit case:
The operation of an Internet website can constitute the purposeful
availment of the privilege of acting in a forum state ... if the
website is interactive to a degree that reveals specifically intended
interaction with residents of the state. Bird, 289 F.3d at 874
(internal quotations omitted). In evaluating whether the defendant's
contact with the forum state constituted purposeful availment, this
and other circuits have used the Zippo sliding scale approach,
which distinguishes between interactive websites, where the defendant
establishes repeated online contacts with residents of the forum
state, and websites that are passive, where the defendant merely posts
information on the site. See, e.g., Neogen Corp. v. Neo Gen Screening,
Inc., 282 F.3d 883, 890 (6th Cir.2002) (citing Zippo Mfg. Co. v. Zippo
Dot Com, Inc., 952 F.Supp. 1119, 1124 (W.D.Pa.1997)); Revell v. Lidov,
317 F.3d 467, 472 (5th Cir.2002). Interactive websites can subject the
defendant to specific personal jurisdiction, whereas passive websites
are less likely to confer such jurisdiction. Neogen Corp., 282 F.3d at
889-91.
Cadle Co. v. Schlichtmann, 123 Fed. Appx. 675, 678 (6th Cir. 2005).
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In article <rh2mm3tahg1fkvrrq7reqcjou7a7n3s1u0@4ax.com>,
Bob Stock <x.x@xxx.com> wrote:
Generally, selling through the Internet to residents of another state
is enough to establish personal jurisdiction over the seller. Here's
a snippet from an unpublished 6th Circuit case:
I don't think so.
The operation of an Internet website can constitute the purposeful
availment of the privilege of acting in a forum state ... if the
website is interactive to a degree that reveals specifically intended
interaction with residents of the state. Bird, 289 F.3d at 874
(internal quotations omitted).
If I put up a web site to sell rare books (shipped from my home in
Minnesota), I have no specific intent of interacting with residents of
any particular state.
In evaluating whether the defendant's contact with the forum state
constituted purposeful availment, this and other circuits have used
the Zippo sliding scale approach, which distinguishes
between interactive websites, where the defendant establishes
repeated online contacts with residents of the forum state,
As the owner of the web site, I wouldn't establish any contacts; the
customers would be establishing them.
Seth
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On Sun, 23 Dec 2007 18:44:30 +0000 (UTC), sethb@panix.com (Seth)
wrote:
If I put up a web site to sell rare books (shipped from my home in
Minnesota), I have no specific intent of interacting with residents of
any particular state.
If your website permits a person in another state to order your books,
that would probably be enough in most jurisdictions for the
out-of-state court to exercise personal jurisdiction over you. It
doesn't matter whether you have "specific intent," which sounds more
criminal than civil, or whether the customer initiates the contact
with your website. The Eighth Circuit (Minnesota) and Minnesota
itself use the same Zippo model as all the other cases I've seen.
If you have some authority to the contrary, please post it.
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In article <t3etm3pfp5t1vmqn6l1urlptckkd29tp3v@4ax.com>,
Bob Stock <x.x@xxx.com> wrote:
On Sun, 23 Dec 2007 18:44:30 +0000 (UTC), sethb@panix.com (Seth)
wrote:
If your website permits a person in another state to order your books,
that would probably be enough in most jurisdictions for the
out-of-state court to exercise personal jurisdiction over you. It
doesn't matter whether you have "specific intent," which sounds more
criminal than civil, or whether the customer initiates the contact
with your website. The Eighth Circuit (Minnesota) and Minnesota
itself use the same Zippo model as all the other cases I've seen.
If you have some authority to the contrary, please post it.
Your own citation, from a few posts upthread:
The
Soperation of an Internet website can constitute the purposeful
availment of the privilege of acting in a forum state ... if the
website is interactive to a degree that reveals specifically intended
interaction with residents of the state.
T Bird, 289 F.3d at 874
(internal quotations omitted).
I don't "specifically intend" interaction with residents of any
particular state.
Seth
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On Tue, 25 Dec 2007 21:53:02 +0000 (UTC), sethb@panix.com (Seth)
wrote:
In article <t3etm3pfp5t1vmqn6l1urlptckkd29tp3v@4ax.com>,
Bob Stock <x.x@xxx.com> wrote:
Your own citation, from a few posts upthread:
The
Soperation of an Internet website can constitute the purposeful
availment of the privilege of acting in a forum state ... if the
website is interactive to a degree that reveals specifically intended
interaction with residents of the state.
T Bird, 289 F.3d at 874
(internal quotations omitted).
I don't "specifically intend" interaction with residents of any
particular state.
You're reading too much into those two words. I purposely used the
phrase "specific intent" in my comment because I figured that's what
you thought. When I asked for authority, I was asking for a decision
whose *conclusion* supported your view.
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In article <uid3n3l3np6sl7r062u1t4e6pqh3v66bja@4ax.com>,
Bob Stock <x.x@xxx.com> wrote:
On Tue, 25 Dec 2007 21:53:02 +0000 (UTC), sethb@panix.com (Seth)
wrote:
Your own citation, from a few posts upthread:
The
Soperation of an Internet website can constitute the purposeful
availment of the privilege of acting in a forum state ... if the
website is interactive to a degree that reveals specifically intended
interaction with residents of the state.
T Bird, 289 F.3d at 874
(internal quotations omitted).
I don't "specifically intend" interaction with residents of any
particular state.
You're reading too much into those two words. I purposely used the
phrase "specific intent" in my comment because I figured that's what
you thought. When I asked for authority, I was asking for a decision
whose *conclusion* supported your view.
It says in your quote "specifically intended interaction". A website
that's aimed at anybody in the US (say, by specifying shipping is only
available within the US) is clearly not "specifically intending
interaction" with residents of Utah. A website that says "Order pizza
here and we'll deliver it free within 5 miles of our store in Salt
Lake City" is clearly specifically intending interaction with
residents of Utah.
Seth
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On Thu, 20 Dec 2007 15:28:36 GMT, "McGyver" <Greyprof@msn.com> wrote:
Generally, selling through the Internet to residents of another state
is enough to establish personal jurisdiction over the seller. Here's
a snippet from an unpublished 6th Circuit case:
The "operation of an Internet website can constitute the purposeful
availment of the privilege of acting in a forum state ... if the
website is interactive to a degree that reveals specifically intended
interaction with residents of the state." Bird, 289 F.3d at 874
(internal quotations omitted). In evaluating whether the defendant's
contact with the forum state constituted purposeful availment, this
and other circuits have used the " Zippo sliding scale" approach,
which distinguishes between interactive websites, where the defendant
establishes repeated online contacts with residents of the forum
state, and websites that are passive, where the defendant merely posts
information on the site. See, e.g., Neogen Corp. v. Neo Gen Screening,
Inc., 282 F.3d 883, 890 (6th Cir.2002) (citing Zippo Mfg. Co. v. Zippo
Dot Com, Inc., 952 F.Supp. 1119, 1124 (W.D.Pa.1997)); Revell v. Lidov,
317 F.3d 467, 472 (5th Cir.2002). Interactive websites can subject the
defendant to specific personal jurisdiction, whereas passive websites
are less likely to confer such jurisdiction. Neogen Corp., 282 F.3d at
889-91.
Cadle Co. v. Schlichtmann, 123 Fed. Appx. 675, 678 (6th Cir. 2005).
I think that unpublished 6th Circuit opinion is wrong. I don't believe that
use of the U.S. Mail or other instrumentalities of interstate commerce, when
used in a strictly interstate communication, can subject a user to personal
jurisdiction, even if the communication includes extensive interaction. I
doubt that the 6th Circuit would go so far as to say that use of the U.S.
Mail, including several back-and-forth letters between a seller and one
specific customer, would constitute purposeful availment. I think the
reasoning behind the U.S. Mail analogy is even more relevant to Internet
communications.
I know the next step for a reasonable person would be to do some research,
find authority for my position and post it, but I decline. I will leave to
others the joy of research.
McGyver
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On 25 Mar 2008, "McGyver" <Greyprof@msn.com> wrote:
"Bob Stock" <x.x@xxx.com> wrote
I think that unpublished 6th Circuit opinion is wrong. I don't believe
that use of the U.S. Mail or other instrumentalities of interstate
commerce, when used in a strictly interstate communication, can
subject a user to personal jurisdiction, even if the communication
includes extensive interaction. I doubt that the 6th Circuit would
go so far as to say that use of the U.S. Mail, including several
back-and-forth letters between a seller and one specific customer,
would constitute purposeful availment. I think the reasoning behind
the U.S. Mail analogy is even more relevant to Internet communications.
* * *
It is incorrect to say that the above cited (hey, Folks, don't forget:
"NOT RECOMMENDED FOR FULL-TEXT PULIBCATION") decision in Cadle, etc.,
v. Schlichtmann, etc., is "wrong" because, in fact, the ruling in
that case read in its entirety and so in full context essentially
agrees with the point "McGyver" makes above.
Though this is very unusual for him -- Mr. Stock's numerous law
related newsgroup postings ordinarily illustrate an ongoing intent to
try to be helpful without apparent hyperbole (much less by way of
deliberately made misstatements) -- the fact is that, in this
instance, the small excerpt he quoted from that decision in question
was in the nature of the classic rhetorical device that, "on the one
hand, sometimes in some instances, thus and such occurs . . . " for
the purpose of providing a preface to ruling, on the other hand, that
the particular "thus and such" at issue in that case -- whether
defendant Schlictmann's operation based from Mass. of a partially
interactive web site containing (according to Cadle) allegedly
deceptive statements about Cadle that was accessible to, among
gazillions of others, readers/users in Ohio subjected Schlichtmann to
an Ohio court lawsuit seeking redress pursuant to an Ohio
legislatively created cause of action enacted primarily for the
benefit of persons doing business or damaged in Ohio.
In particular, and contrary to Mr. Stock's statement as quoted above
-- i.e., that, " Generally [sic], selling through the Internet to
residents of another state is enough to establish personal
jurisdiction over the seller" -- the above cited 6th Cir.
opnion/ruling (though, again, in a manner cautioning readers something
important about how the court wants its ruling considered for or not
of precedent - i.e., in not officially published form) read as a whole
makes quite clear that that court does not agree that "generally" the
position Mr. Stock ascribes to it will prevail and, instead, says and
rules) basically in accord with what "McGyver" says above.
The court there emphasized that, insofar as operating a website is
concerned, so doing may provide a basis for jurisdiction over an
out-of-state resident (in that case, pursuant to the Ohio "long-arm"
statute which is comparable to others more or less generally
prevailing in most U.S. states) only if all of these requirements are
met: (i) that the website in question is a "purposeful availment" of
the forum state, (ii) that the nature/content of the web site itself
provides the core basis for the alleged cause of action, and (iii)
that assertion of jurisdiction over the defendant is otherwise
"reasonable" in fact in light of all the relevant/operative
circumstances.
It then went on to rule that item "ii" was the most important for the
facts at issue in that case and, in that connection, that operation of
a website will subject the out-of-state such operator to jurisdiction
not "generally" and, instead, first, only if the site in question
actually is "interactive" (i.e., is not a "passive" or even
predominantly "passive" one), and/but, even then, second, only if it
is interactive to an extent that "reveals specifically intended
interaction with residents of the [would-be forum] state" as
distinguished from being more or less openly interactive for others
elsewhere then, third, agreed with the lower court's factual
determinations to the effect that plaintiff did not make such a
showing (e.g., because the website in question was accessible to and
usable by pretty much anyone and its text/content directed mostly to
and focused primarily on Mass. residents).
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