You are browsing the Internet searching for that bargain to end all bargains when your favorite search engine kicks out a promising link to an enticing Web page.
You click on that Web page, where a dizzying array of menus, drop-downs and hyperlinks convince you to buy. You buy.
The product arrives (or it doesn’t). It’s missing parts or pieces, or is not in good (or any) working order. Maybe it literally isn’t what was represented on the Web page (lacking advertised or essential features) and is of little or no use to you. Or maybe you’ve ended up paying more (maybe far more) than you expected because of charges and fees that you didn’t understand, weren’t disclosed or were just bogus.
You attempt to return the item, cancel your order, get your money back or obtain a satisfactory credit or exchange, only to eventually realize you’ve been ripped off.
You decide suing is your only recourse. You head down to the courthouse (okay, maybe you file electronically), confident that the seller you first learned about online will have to answer for his misdeeds in the court you choose. Perhaps you shouldn’t be so confident.
Don’t assume that the purchase of a product or service on the Internet will guarantee personal jurisdiction over a potential defendant. Under RCW § 4.28.080(10), Washington courts have “general jurisdiction” over a party when its activities in the state are so substantial and continuous that justice allows for the exercise of jurisdiction.1 Factors to examine include whether a defendant is conducting substantial and continuous business within Washington, as evidenced by the amount, kind and continuity of its business activities in the state.
Even in the absence of “general jurisdiction,” Washington’s long-arm statute2 authorizes long-arm (also known as “specific”) jurisdiction when an out-of-state party either transacts business or commits a tort within Washington. Three factors are generally evaluated: 1) whether the party “purposefully” performed an act or transaction in the state; 2) whether the cause of action arose from that act or transaction; and 3) whether exercising jurisdiction is consistent with fair play and substantial justice.3 Courts look to the entire transaction, including communications, negotiations, terms and contemplated future dealings, not just whether it involved a contract with a state resident.
The line separating transactions supporting long-arm jurisdiction here from those that don’t can appear more hazy than bright. Our courts have found jurisdiction when an out-of-state business sought Washington customers by advertising and sending out brochures, and (significantly) contracting to honor warranties here.4
However, no jurisdiction was found over a Louisiana defendant who contracted to repair a boat for a state resident, who took his boat there for repair work, even though the defendant had (unsuccessfully) advertised here and had contracted to do work (there) for four other Washington residents.5 More recently, the court declined jurisdiction over an Oregon defendant that received a substantial amount of business from Washington residents and even used a website to facilitate that business.6
In analyzing personal jurisdiction over the Internet, courts look to whether the website was passive or active, and the extent the parties purposefully conducted business in any given jurisdiction.7 Generally, operating a website (more “interactive” websites are more likely to support jurisdiction), along with “something more” that demonstrates that the defendant directed activity toward the forum state, will support jurisdiction.8
A sale to a state resident, however, is by no means determinative. Courts continue to evaluate the entire transaction, including negotiations,9 terms and future obligations. Although many factors get weighed, courts are more likely to find that the merchant’s derivation of an economic benefit from the Internet (i.e., a sale, particularly one completed through the website or a link) will help support a finding of personal jurisdiction here.10
Still, no single factor, including the capability of completing and paying for the transaction online, is determinative. Our courts still apply traditional personal jurisdiction analysis, even in this Internet age, and continue to look at the whole transaction, including, for example, such seemingly minor factors as which party makes or offers shipping or transportation arrangements.11
The Law Office of Edwin R. Burkhardt assists consumers, debtors, employees and small businesses with counseling and litigation. It is located in downtown Seattle.
1 Bartusch v. Board of Higher Ed., 131 Wn. App. 298, 304 (2006).
2 RCW § 4.28.185(1)(a)
3 Bartusch, 131 Wn. App. at 306.
4 Raymond v. Robinson, 104 Wn. App. 627, 637–40 (2001).
5 MBM Fisheries v. Bollinger Mach. Shop & Shipyard, Inc., 60 Wn. App. 414, 417 (1991).
6 Bartusch, 131 Wn. App. at 309.
7 Precision Laboratory Plastics v. Micro Test, 96 Wn. App. 721, 728 (1999).
8 Rio Props, Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1019–20 (9th Cir. 2002).
9 This is amply demonstrated by courts declining to exercise personal jurisdiction over merchants selling online over commercial sites such as eBay without that “something more.” See Boschetto v. Hansing, 2006 WL 1980383 (N.D. Cal. July 13, 2006) (concluding Wisconsin merchant’s single eBay sale to Californian not sufficient).
10 State Dep’t of Rev. v. WWW.Dirtcheapcig. com, Inc., 260 F. Supp. 2d 1048, 1052 (W.D. Wash. 2003). The defendant’s derivation of revenue from sales in this state also was cited as a factor supporting jurisdiction in Gordon v. Virtumundo, Inc., Slip Copy 2006 WL 1495770 (No. CV06-0204JCC) (W.D. Wash. May 24, 2006).
11 In Boschetto, supra, (no jurisdiction), the court noted that phone calls and correspondence needed to finalize or complete the transaction could, when weighed along with the eBay transaction, help support jurisdiction, but found it significant that the plaintiff — not the defendant — arranged for shipping. Conversely, a federal court here (finding jurisdiction) noted that a merchant advertised and offered shipping to Washington residents. Omni Innovations, LLC v. Impulse Marketing Group, Inc., 2007 WL 21103337 (No. C06-1469MJP) (W.D. Wash. July 18, 2007).
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