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Bar Journal - Summer 2007

From Lumber to Local Area Network: The Impact of Vermont Wholesale on Internet Personal Jurisdiction



Nobody likes studying personal jurisdiction in law school. It baffles every first-year law student.
1  The cases are confusing to distinguished professors and respected attorneys alike.2  Even judges have admitted that personal jurisdiction, at times, makes little sense.3  Unless personal jurisdiction properly allows a suit against an out-of-state defendant, however, the merits of a lawsuit are inconsequential.4  It alone governs when a plaintiff can haul an out-of-state defendant into state court.5  As New Hampshire’s economy becomes more global,6 the question of when a New Hampshire plaintiff can invoke the court’s jurisdiction over an out-of-state defendant will become even more important.

Until Vermont Wholesale Building Products, Inc. v. J.W. Jones Lumber Co., Inc.,
7 the extent to which an out-of-state business could place a product into the “stream of commerce” and not be subject to an exercise of personal jurisdiction was undecided in New Hampshire.8 The question has resulted in divided opinions from the U.S. Supreme Court and created a quagmire in the lower courts.9  This article discusses the competing theories of “stream of commerce” personal jurisdiction and explains the test adopted by the Vermont Wholesale Court. Finally, it discusses Internet-related personal jurisdiction cases consistent with New Hampshire’s personal jurisdiction tests in Vermont Wholesale and Metcalf v. Lawson10 and predicts how extensive the Internet-related contacts must be for a New Hampshire plaintiff to sue an out-of-state defendant in state court.


Personal Jurisdiction and Civil Procedure
Since Pennoyer v. Neff
11 in 1877, courts have struggled with the task of defining when a court may force a nonresident to appear and defend.12  The Pennoyer Court borrowed from international law and principles of conflict of laws to mold personal jurisdiction doctrine based on a state’s territorial power.13  However, for another 68 years, the Court wrestled with the application of Pennoyer and the state’s territorial power in the context of a growing mobile economy and the increasing predominance of national or trans-territorial corporations.14  Eventually, in International Shoe Co. v. Washington,15 the Court allowed a state court to extend its jurisdiction beyond the state’s borders, abandoning the focus on whether actions occurred within the state’s territorial power.16  The Court instead began analyzing “minimum contacts,” or the links and interactions that allow an out-of-state defendant to be sued without offending “traditional notions of fair play and substantial justice.”17  From International Shoe, the “minimum contacts” analysis was born.18

Personal jurisdiction reflects the geographic limitation of a state’s sovereign judicial power.
19  Under International Shoe and its progeny, there are two types of personal jurisdiction: general and specific.20  General jurisdiction exists when a defendant engaged in continuous and systematic activity in New Hampshire, but the litigation is not directly based on the defendant’s New Hampshire contacts.21  Although the litigation does not arise from anything the defendant did in the forum state, the defendant did such continuous and systematic business there that it would not be unfair to bring suit against him.22  These continuous and systematic contacts could be, for example, conducting limited business activities and bank transactions in the forum state unrelated to the cause of action,23 but need to be more than just purchases or business trips in the forum state unrelated to the litigation.24

Specific jurisdiction encompasses a narrower set of claims than general jurisdiction, and exists when the cause of action arises from the defendant’s New Hampshire-based contacts that are specifically related to the matter in dispute.
25  Specific jurisdiction asks whether the out-of-state defendant’s conduct and connection with the forum state would allow it to reasonably anticipate being sued there.26  Both specific and general personal jurisdiction differ from subject matter jurisdiction27 or forum non conveniens.28


Vermont Wholesale: A Giant Civil Procedure Problem

Vermont Wholesale
is something out of a civil procedure nightmare. It began when a contractor bought flooring from Central Building Supply, a retail store in Littleton, and installed it in a home in Whitefield.29  Central Building Supply had bought the flooring from Vermont Wholesale Building Products, which distributes lumber in Massachusetts, New Hampshire, Vermont, and New York.30  Vermont Wholesale bought the lumber from Jones Lumber, a North Carolina corporation that does not advertise in New Hampshire nor have any New Hampshire offices, assets, employees, or distributors.31  However, Jones Lumber was aware that Vermont Wholesale did business in a four-state region that included New Hampshire.32

The Whitefield homeowners alleged that the flooring was defective and sued the contractor who installed it.
33  The contractor brought a third-party action against Vermont Wholesale, which, in turn, brought actions against Central Building Supply and Jones Lumber.34  Jones Lumber moved to dismiss for lack of personal jurisdiction, lost in the trial court, and appealed.35

In New Hampshire, a two-part analysis governs specific jurisdiction.
36  First, New Hampshire’s long-arm statute37 must authorize the exercise of jurisdiction.38  Second, an exercise of specific jurisdiction must comport with the Federal Due Process Clause.39  In order to comply with due process, the contacts must “relate to the cause of action,” the defendant must have “purposefully availed itself of the protection of New Hampshire’s laws,” and it would have to be “fair and reasonable to require the defendant to defend the suit in New Hampshire.”40  The issue for the Vermont Wholesale Court was whether New Hampshire could exert specific jurisdiction over Jones Lumber.41


The Vermont Wholesale Problem
New Hampshire’s long-arm statute permits jurisdiction to the extent allowed under the Federal Due Process Clause, so the Vermont Wholesale Court moved on to the due process analysis.
42  The alleged contacts by Jones Lumber related to the cause of action, so the first specific jurisdiction factor was satisfied.43  The flooring manufactured by Jones Lumber was alleged to be defective, and Jones Lumber was aware that the distributor, Vermont Wholesale, sold flooring in New Hampshire.44  The Court, thus, next had to examine the second due process factor and determine whether Jones Lumber “purposefully availed itself of the protection of New Hampshire’s laws” through examining its minimum contacts.45

To satisfy this due process factor, the defendant’s minimum contacts in New Hampshire must demonstrate that it purposefully availed itself “of the privilege of conducting activities within [New Hampshire], thus invoking the benefits and protections of its laws.”
46  The contacts that create a substantial connection to the forum state must proximately result from the defendant’s actions,47 so the defendant itself must have deliberately created the substantial connection with the forum state.48  Thus, the question was not just whether the defendant’s contacts with New Hampshire caused an injury there, but whether its contacts should have given the defendant notice that it should have reasonably anticipated being haled into a New Hampshire court.49

Vermont Wholesale argued that Jones Lumber placed its products into the “stream of commerce” with the knowledge that the products would be distributed in New Hampshire.
50  This, Vermont Wholesale claimed, established “minimum contacts” and demonstrated that Jones Lumber purposefully availed itself of New Hampshire’s laws.51  Jones Lumber countered that placing the flooring in the stream of commerce, knowing that the flooring may be used in New Hampshire, was not enough to satisfy “minimum contacts.”52  Jones Lumber claimed that some further activity aimed at New Hampshire was required.53  Whether or not minimum contacts can be satisfied by placing a product into the stream of commerce was an issue of first impression in New Hampshire.54


Stream of Commerce and the U.S. Supreme Court
To determine whether Jones Lumber could be sued in New Hampshire, the Vermont Wholesale Court looked to two U.S. Supreme Court cases: World-Wide Volkswagen Corp. v. Woodson
55 and Asahi Metal Industry Co., Ltd. v. Superior Court of California, Solano County.56  In World-Wide Volkswagen, the Supreme Court ruled that “foreseeability alone has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause.”57  Furthermore, it is not the location of the incident or injury, but rather the defendant’s conduct and connection to the forum state that allows the defendant to reasonably anticipate being haled into court in the forum state.58

The Vermont Wholesale Court agreed that foreseeability is relevant only to the extent a state can exercise jurisdiction over a defendant because of its conduct and connection with New Hampshire.
59  Rather than equating foreseeability that a product could cause an injury in New Hampshire with personal jurisdiction, it is the defendant’s affirmative efforts to serve the specific New Hampshire market that render it foreseeable that the defendant could fall under New Hampshire jurisdiction.60  World-Wide Volkswagen, however, left open the question of whether merely delivering a product into the stream of commerce satisfies the minimum contacts test.61  The World-Wide Volkswagen Court held that forum states do not exceed their due process powers if a corporation delivers its products into the stream of commerce “with the expectation that they will be purchased by consumers in the forum state.”62

Asahi was the Court’s chance to clarify the stream of commerce issue, but a divided Court disposed of the case on other grounds.
63  Justice O’Connor wrote for four justices, Justice Brennan wrote for four justices, and Justice Stevens rejected the reasoning of both opinions.64

Justice O’Connor held that placing a product in the stream of commerce, without more, is not purposeful action directed at the forum state and does not establish minimum contacts.
65  For a “substantial connection” compliant with due process, mere awareness that the stream of commerce might bring a product into a forum state is insufficient.66  Something more purposefully directed at the forum state, such as designing the product with the forum state in mind, advertising in the forum state, establishing a way to provide regular advice to customers in the forum state, or marketing through a distributor that is the sales agent in the forum state, is required.67  This theory is known as “stream of commerce plus.”68

By contrast, Justice Brennan found that no additional conduct was required besides placing the product in the stream of commerce with the knowledge it could end up in the forum state.
69  By doing so, the defendant has purposefully availed itself of the forum state’s market and benefited from that state’s laws.70  Economic and legal benefits are derived whether or not the defendant did anything more than place the product into the stream of commerce.71  Therefore, no further action was required to satisfy the minimum contacts requirement if the defendant knew that its products were being marketed in the forum state.72

This has led to a division among the circuits.
73  Personal jurisdiction rulings vary based on which Asahi plurality opinion is applied.74  Some circuits follow O’Connor.75  Some follow Brennan.76  Some avoid Asahi altogether and instead focus on World-Wide Volkswagen.77  The First Circuit explicitly adopted O’Connor’s stream of commerce plus analysis.78  The Eleventh Circuit also concluded that personal jurisdiction must satisfy O’Connor’s test,79 and the Sixth Circuit expressed a preference for O’Connor’s approach.80


New Hampshire Follows Justice O’Connor
The Vermont Wholesale Court focused on a pivotal statement from World-Wide Volkswagen in determining that New Hampshire would follow O’Connor’s analysis: “foreseeability alone has never been a sufficient benchmark for personal jurisdiction.”
81  Thus, Jones Lumber’s awareness that its product may go to New Hampshire, by itself, was insufficient to show Jones Lumber purposefully availed itself of the protection of New Hampshire’s laws.82  Some additional conduct was needed under O’Connor’s “stream of commerce plus” approach.83  Otherwise, according to the World-Wide Volkswagen Court, a California tire retailer could be haled into a Pennsylvania court if a blowout occurred in Pennsylvania, or a Florida soft-drink concessionaire could be summoned to Alaska if injuries occurred in Alaska.84  The seller’s exposure to litigation would travel with his products as they moved around the U.S., a principle that the U.S. Supreme Court was unwilling to endorse.85  Ruling that “something more” than placing a product in the stream of commerce was required to exert personal jurisdiction, the Vermont Wholesale Court rejected the Brennan theory for three reasons.86

First, the Vermont Wholesale Court found that World-Wide Volkswagen suggested that the “expectation” a defendant’s product will be purchased in another state, and “foreseeability” it will be haled into another state’s court to defend itself, were both based on efforts to serve the market of the forum state.
87  World-Wide Volkswagen never elaborated on what contact was needed to satisfy due process, but it was “something more” than mere placement of a product into the stream of commerce.88

Second, the Vermont Wholesale Court found that stream of commerce alone is too broad to satisfy due process.
89  The Court elaborated that the mere foreseeability that a product will end up in a state through the stream of commerce places very little limitation on a state’s power.90  Minimum contacts are designed to protect defendants from litigating in inconvenient or distant forums, and to ensure that state courts stay within their limits.91  A corporation is on notice of possible future litigation if it conducts activities within a forum state and purposefully avails itself of that privilege.92  If a corporation directs its efforts at a forum state’s market, it can reduce the chance of litigation by, for example, purchasing insurance to protect itself from losses, passing on costs to customers, or severing the connection with the state.93

Without “something more,” as required under “stream of commerce plus,” a defendant could be subjected to lawsuits through the actions of third parties rather than its own deliberate activities in structuring contact with a forum state.
94  This would make it impossible for corporations to plan their business contacts with New Hampshire and anticipate the corresponding risks of doing business here.95  Requiring additional conduct indicating intent to serve the forum state’s market gives corporations more certainty in predicting when a state court can exercise jurisdiction.96

Third, the Vermont Wholesale Court explained that Justice O’Connor’s “stream of commerce plus” method gives courts a more practical approach with which to evaluate the defendant’s contacts.
97  The Brennan approach permits exercises of jurisdiction over defendants that are aware their products are likely to reach a forum state, and would, therefore, require defendants to have actual knowledge their products entered a forum state to demonstrate this awareness.98  This actual knowledge would be difficult to establish in a commercial setting and evidence necessary to establish it might be scattered in distant jurisdictions.99  Mandating proof of actual knowledge would also provide a loophole for defendants that negligently or willfully ignore their products’ destinations.100  The “stream of commerce plus” approach closes these loopholes and eliminates these problems by focusing on the defendant’s conduct in the forum state, which can be measured objectively, rather than the defendant’s subjective knowledge.101


Internet Personal Jurisdiction in New Hampshire
Vermont Wholesale will eventually need to be applied to the next frontier of personal jurisdiction: the Internet. As the Internet has proliferated, courts have struggled to determine when websites or Internet contacts by an individual or corporation will subject them to personal jurisdiction.
102  While Pennoyer focused on a state’s territorial power103 and International Shoe was concerned with “minimum contacts,”104 both applied the law to tangible goods. Even the Court in Vermont Wholesale dealt with real products: flooring.105  The rules laid out in traditional personal jurisdiction cases, while arguably straightforward for goods, are not always easy to apply to the Internet.106

The Internet causes numerous problems when trying to determine when it is appropriate for a court to exercise personal jurisdiction over a defendant. For example, defendant Web users may not be aware which states the persons with which they are interacting are located.
107  Requiring a defendant to submit to the jurisdiction of a forum state if that defendant did not intend to interact there triggers due process concerns.108  The New Hampshire Supreme Court has admitted that “[i]t can be difficult to apply long-standing jurisdictional principles in cases involving Internet contacts.”109  Yet even with the challenges to personal jurisdiction that the Internet poses, the requirements of purposeful availment, minimum contacts, and fundamental fairness must still be satisfied.110

Vermont Wholesale stated that “something more than that the defendant was aware of its product’s entry into the forum state through the stream of commerce” is required to exert personal jurisdiction,
111 and this can aid a personal jurisdiction analysis involving Internet-related contacts. Before Vermont Wholesale, the Court addressed aspects of personal jurisdiction over the Internet in Metcalf.112  In Metcalf, the Court noted that there is a sliding scale approach that measures the quality and nature of the commercial activity that the defendant conducts over the Internet.113  On one end of this sliding scale, personal jurisdiction is proper because the out-of-state defendant clearly does business in New Hampshire over the Internet.114  This could be, for example, because the defendant knowingly entered into contracts with New Hampshire residents involving repeated transmission of files via the Internet.115  On the other end of the scale, personal jurisdiction is improper because the out-of-state defendant has only posted information on a passive website potentially accessible to New Hampshire users.116  Personal jurisdiction for the middle of the scale, where users exchange information with an interactive website or host computer, are examined on a case-by-case basis.117  Situations that fall in the middle of the scale require analysis of the level of interactivity and nature of the commercial exchange of information.118

In Metcalf, a New Jersey defendant advertised an excavator on eBay, an Internet auction site, without ever being physically present in New Hampshire.
119  The plaintiff, from New Hampshire, exchanged e-mails with the defendant prior to bidding, and later winning, the excavator.120  After the auction was complete and before picking up the excavator, the plaintiff informed the defendant that he was a New Hampshire resident.121  The plaintiff later experienced problems with the excavator, tried to contact the defendant via e-mail, and sued after not receiving any response.122

The Court ruled that personal jurisdiction was improper when a defendant sells a product to a New Hampshire consumer over eBay because the defendant has no control over the winning bidder.
123  The defendant may have foreseen that a New Hampshire bidder could win, but the defendant could not exclude purchasers in other jurisdictions from bidding and “foreseeability alone is insufficient to support the exercise of personal jurisdiction.”124  Second, the Court held that some e-mails between the plaintiff and defendant in connection with the sale were not enough to support personal jurisdiction because the actions were unilateral activity by the plaintiff to the defendant,125 which was insufficient without actions by the defendant purposefully availing herself of the laws of the forum state.126  The later e-mails were also insufficient because there was not enough evidence that the defendant sent e-mails to the plaintiff after she was made aware she was directing her activities toward New Hampshire.127  The defendant only learned the plaintiff was a New Hampshire resident after the sale was completed.128  The Court never applied the sliding scale test because eBay, not a website made by the defendant, was at issue in the case.129  Even so, the contacts made through the Internet site were insufficient to exercise personal jurisdiction under the sliding scale test because the defendant did not direct her activities intentionally at New Hampshire.130


The Effect of Vermont Wholesale on Internet Personal Jurisdiction
Metcalf is consistent with Vermont Wholesale because it essentially applied a “stream of commerce plus” test. Metcalf put websites into two categories: those that direct actions toward New Hampshire and those that post information but do not direct actions toward any particular forum state.
131  The Vermont Wholesale Court held that “additional conduct” directed at New Hampshire, serving or forming a connection with the New Hampshire market, was required to allow an exercise of personal jurisdiction over a defendant.132  The defendant in Metcalf lacked the “additional conduct” required by Vermont Wholesale because she did not knowingly direct her actions at New Hampshire.133 

Since Metcalf did not find that jurisdiction over the defendant was proper, the Court did not explain when a defendant will have sufficient Internet contacts to be haled into a New Hampshire court.
134  The test in Metcalf has been applied numerous times elsewhere,135 so courts in other jurisdictions that have handled more Internet personal jurisdiction cases can provide guidance. For example, two jurisdictions that also apply O’Connor’s “stream of commerce plus” test for personal jurisdiction are Texas136 and Michigan.137  New Hampshire can look to these states, or others with Internet personal jurisdiction case law that have applied O’Connor’s reasoning, for guidance.138


Websites and Personal Jurisdiction 
Under the sliding scale test in Metcalf, personal jurisdiction is proper when the defendant enters into contracts with residents of a foreign jurisdiction through a website that involves repeated transmission of files over the Internet and knowledge of the location of the plaintiff.
139  The ability to download and enter into contracts or transact business are hallmarks of interactive websites where personal jurisdiction is proper.140  Courts applying this sliding scale test have held that, for example, personal jurisdiction was proper over a defendant that contracted with 3,000 residents and multiple Internet providers in Pennsylvania to download electronic messages.141  This information was not just posted on a website accessible to any Pennsylvania resident.142  Rather, the defendant consciously entered into contracts with the parties in Pennsylvania knowing that future transmissions over the Internet were destined for Pennsylvania.143

Illinois also applies the same sliding scale test.
144  A federal district court in Illinois found that a defendant’s website that solicited donations, sold products, and allowed users to post information was enough for personal jurisdiction over the defendant.145  The defendant received donations and purchases from Illinois residents and also replied to posts on their website from Illinois residents.146  Since the defendants transacted business with Illinois residents, the website was a “far cry” from other more passive websites.147

Lastly, the Sixth Circuit, without applying the sliding scale, found a defendant that sent software to an Ohio plaintiff repeatedly for three years, loaded it onto the plaintiff’s system, and possibly allowed others to buy the software, was properly subject to personal jurisdiction in Ohio.
148  The defendant had placed “shareware” software on a server in Ohio for users to download and, if they chose, purchase.149  Because the defendant deliberately entered into contracts with the plaintiff and uploaded his software, personal jurisdiction was proper.150

When a defendant merely posts information on a website accessible to users in a foreign jurisdiction, personal jurisdiction is improper.
151  This is an example of a passive website.152  A passive website “merely makes available information about the company and its products,” but a defendant does not direct business activities toward consumers in any particular forum state with it.153  These passive websites are different from active websites because active websites allow a defendant to direct purposeful conduct toward a forum state to form contracts, make transactions, or otherwise interact over the Internet with users there.154

These passive websites can come in many different varieties, and many courts have elaborated on the kinds of situations where personal jurisdiction is improper. For example, an advertisement in a trade publication on the Internet,
155 a website that merely posted textual information without interactive features,156 websites that posted information about the defendant but did not provide methods for the defendant and customers to interact over the Internet,157 and an online catalog website that displayed items but did not provide for an exchange of any information158 have all been found insufficient to establish minimum contacts or exercise personal jurisdiction because they lacked the essential characteristic of action directed toward the forum state. Courts in Massachusetts, Michigan, and Minnesota have all similarly held that an advertising website did not create minimum contacts if it did not purposefully direct its actions toward the forum state or purposefully establish minimum contacts with residents of the forum state.159

Even websites with some interactive features may still be passive and not allow an exercise of personal jurisdiction over the defendant. For example, toll-free numbers supporting a passive website will not allow personal jurisdiction over a defendant in Texas.
160  Displaying NASDAQ quotes for residents in other states, even if the defendant accepts orders from brokers via the Internet, likewise does not enable an exercise of personal jurisdiction because the site did not target any particular forum state.161  A website may even be passive if, for a time, it gives buyers the opportunity to purchase products over the Internet but no sales were ever made over the website.162  The Federal District Court of New Hampshire, applying O’Connor’s reasoning,163 held that a website that only briefly offered users an opportunity to purchase products was passive because the defendant never made any Internet sales while the online purchase feature was on the website.164  Personal jurisdiction was inappropriate because the website only gave information about the defendant and its products once the online purchase feature was removed from the website.165  The defendant’s conduct was equivalent to merely advertising over a website, and was, therefore, passive.166

Both Metcalf and Vermont Wholesale agree that foreseeability alone is not enough to support the exercise of personal jurisdiction.
167  The “something more” required for personal jurisdiction cannot, based on cases from other courts, just be advertisements,168 websites with passive information,169 or online catalogs that do not allow for interaction with users.170  Instead, looking to other jurisdictions, purposeful conduct could be demonstrated on websites that knowingly contract with individuals in a forum state171 or websites that otherwise deliberately transact business between a plaintiff and defendant.172  Defendants operating the websites in these examples actively direct their conduct toward New Hampshire.173


E-mails and Personal Jurisdiction
The Court has yet to rule when a defendant’s e-mail contacts are sufficient to establish personal jurisdiction. The e-mails in Metcalf were insufficient.
174  There, some actions were only unilateral activity by the plaintiff that did not purposefully avail the defendant of New Hampshire’s laws and, for others, there was no proof the defendant knew she directed her activities at New Hampshire. 175

Yet, a defendant that repeatedly sent e-mails may satisfy minimum contacts if the defendant is soliciting business in the forum state.
176  E-mails, then, may be thought of in a manner similar to websites with a sliding scale of e-mail contact. At one end of the scale are e-mails to solicit business by an out-of-state defendant who knows some e-mails will enter a forum state and interacts with some residents of the forum state, where personal jurisdiction is proper.177  At the other end of the scale are e-mails to solicit business by an out-of-state defendant who does not know the geographic destination of the e-mails and does not establish any relationships with residents of the forum state, where personal jurisdiction is improper.178  The defendant in Metcalf did not know the geographic destination of the e-mails and did not interact with the plaintiff after learning he was a New Hampshire resident, and, therefore, personal jurisdiction was improper under this test.179

In Fenn v. Mleads,
180 the Utah Supreme Court found personal jurisdiction was improper when based merely on an e-mail.181  The defendant sent unsolicited e-mail advertisements regarding loans and mortgages, one of which was received by the plaintiff in Utah.182  The court examined whether a substantial connection to Utah had been created by the e-mails or whether the e-mails were active enough on the sliding scale to merit an exercise of personal jurisdiction.183  The Utah Supreme Court found that sending the e-mails was neither clearly passive nor active contact on the sliding scale.184  The e-mailing fell within the sliding scale’s middle ground of “interactive,” so the court examined the nature and quality of the exchange.185  However, because the defendant’s e-mails merely provided information, they did not establish actual relationships or create business transactions.186  Since the defendant did not know where the e-mails were being sent and no relationship or exchange occurred between the plaintiff and defendant, personal jurisdiction was improper.187

Marycle, LLC v. First Choice Internet
, Inc.188 is an example of e-mail contact that allowed an exercise of personal jurisdiction.189  The out-of-state defendant marketing company sent “hundreds of thousands” of e-mail advertisements all around the U.S. that were specifically and deliberately designed to promote products and to convince recipients to purchase the defendant’s services.190  The defendant conceded that it knew some e-mails would be opened in Maryland.191  The Maryland plaintiff interacted with the defendant by attempting to unsubscribe to these e-mails.192  This situation, thus, went beyond placing products into the stream of commerce because the defendant directly caused the e-mails to be sent to Maryland and it would have been reasonable for the defendant to expect to be haled into court there.193  Since it knew some solicitations would go to Maryland residents for the purpose of soliciting business, personal jurisdiction was proper.194

In the above cases, the e-mails going to both Utah and Maryland intended to establish a business relationship.
195  Yet personal jurisdiction was improper for the defendant in Utah.196  There was no interaction with the Utah plaintiff and, furthermore, the defendant did not know the geographic destination where the e-mails would be sent.197  The defendant in Maryland, however, “knew that the solicitation would go to Maryland residents”198 and interacted with the Maryland plaintiff.199  Thus, based on Metcalf and cases from other states, to satisfy personal jurisdiction through e-mails, the out-of-state defendant needs to send e-mails in an active or interactive relationship with New Hampshire residents,200 knowing that e-mail solicitations were destined for New Hampshire.201  This adds additional conduct beyond merely placing an object into the electronic stream of commerce by showing intent to serve the New Hampshire market.202


Technology has increased the likelihood that a person’s legal rights may be affected by another party in another jurisdiction.
203  Business once requiring face-to-face interaction now can be done at the click of a mouse from hundreds of miles away.204  The ability to do business via the Internet has shown that traditional notions of presence or business transactions may be difficult to apply in the digital world.205  Applying personal jurisdiction in the context of the Internet can be even more confusing.206

While the complexity of personal jurisdiction analysis has increased with technological progress,
207 a defendant’s entitlement to due process has not changed.208  Since a defendant’s web site can be viewed in any state, without some limits on the exercise of personal jurisdiction, an out-of-state defendant could, in theory, be sued anywhere.209  Thus, if courts do not examine the level of interactivity between residents of a forum state and a defendant’s website or e-mails, personal jurisdiction becomes universal.210  Constitutional safeguards must adapt to technological advances in order to continue to limit the power of state courts.211

Vermont Wholesale helps clarify personal jurisdiction in New Hampshire for products sold to New Hampshire residents or, indirectly, contacts made via the Internet. Whether a defendant intentionally interacts through a website or e-mail with forum state residents
212 will determine personal jurisdiction, in accordance with the Court’s ruling in Vermont Wholesale that placing products in the stream of commerce, not directed at any particular forum state, is insufficient for personal jurisdiction.213  Proof the defendant knew he or she was interacting with a New Hampshire resident likely will be important. Whether a product is sold over a website or whether a plaintiff responds to an e-mail from the defendant, however, will become crucial evidence in determining personal jurisdiction.

These divisions also serve as a warning to companies and individuals that transact business over the Internet. An out-of-state defendant that “purposefully avails itself of the privilege of conducting activities” within New Hampshire is on notice that it can be subject to suit there.
214  While just having a commercial website, without more, does not subject a defendant to personal jurisdiction anywhere in the world,215 out-of-state companies and individuals need to understand when online interaction with New Hampshire residents may be enough to bring them before a New Hampshire court.216

Personal jurisdiction has evolved with society, technology, and the economy.
217 Now prospective out-of-state defendants need to do one more thing before spell-checking an e-mail or testing a website. These prospective defendants also need to decide how prepared they are to be sued in the Granite State. A few mouseclicks or a couple of purchases on certain websites may be all a judge needs to rule that personal jurisdiction is proper and that the out-of-state defendant needs to appear in New Hampshire. So be warned before hitting “send,” clicking “post,” or entering the command to “upload,” because while the Internet moves lightning-fast, I-93 North at rush-hour to get to the New Hampshire Supreme Court certainly does not.



1.     See, e.g., Christopher Lyon, Comment, The Ninth Circuit’s Approach to Personal Jurisdiction In Intellectual Property Cases: How Long is the Arm of California Court in Reaching Foreign Defendants?, 15 Loy. L.A. Ent. L.J. 661, 661 (1995) (“Personal jurisdiction is a puzzling and problematic doctrine which continues to confuse first year law students, not to mention numerous litigants, judges, and legal scholars”).

2.     See, e.g., Williams v. France, 2001 WL 1385885, at n. 5 (S.D. Ind. 2001) (“It is unclear whether this is meant to limit his argument to that of general personal jurisdiction or if Williams is confused on the concept of specific personal jurisdiction”); Viron Int’l Corp. v. David Boland, Inc., 237 F. Supp. 2d 812, 818 (W.D. Mich. 2002) (“plaintiff is confused about the concept of personal jurisdiction”); Boyer v. United Methodist Church, 1990 WL 73422, at *1 (N.D.N.Y. 1990) (“dismissal was predicated upon lack of personal jurisdiction, an area of the law that has confused even those who are tutored in the law”).

3.     See, e.g., Weidner Commc’ns, Inc. v. H.R.H. Prince Bandar al Faisal, 859 F.2d 1302, n. 8 (7th Cir. 1988) (“It seems likely that the parties and the district court confused personal jurisdiction with the doctrine of forum non conveniens”); Leema Enters. v. Willi, 528 F. Supp. 255, 256 (S.D.N.Y. 1984) (“The jurisprudence of personal jurisdiction, however, is an occasionally confusing and complex area of the law”); Babich v. Karsnak, 528 A.2d 649, 653 (Pa. Super. 1987) (“Federal district courts sitting in Pennsylvania have professed that the issue of personal jurisdiction over such individuals is a somewhat confusing area of law which has divided courts in this circuit for at least a decade”); Curtis v. Curtis, 789 P.2d 717, 725 (Utah Ct. App. 1990) (“The Utah and Mississippi trial courts apparently confused the rules concerning subject matter jurisdiction with those of personal jurisdiction”).

4.     See Henry H. Perritt, Jr., Jurisdiction in Cyberspace, 41 Vill. L. Rev. 1, 13 (1996) (“Personal jurisdiction in both the criminal and civil context is the basic precondition of jurisdiction to adjudicate”).

5.     See Stephen N. Subrin et al., Civil Procedure: Doctrine, Practice, and Context, 551 (2d ed. 2004).

6.     See, e.g., Jeff Feingold, N.H. Seen as Region’s Economic Leaders, Nov. 15, 2006,; Shir Haberman, N.H. Poised for Job Growth, 2006,

7.     Vt. Wholesale Bldg. Prods., Inc. v. J.W. Jones Lumber Co., Inc., __ N.H. __, 914 A.2d 818 (N.H. 2006).

8.     Id. at 823.

9.     Id.

10.    Metcalf v. Lawson, 802 A.2d 1221, 1225 (N.H. 2002).

11.    Pennoyer v. Neff, 95 U.S. 714 (1877).

12.    Subrin et al., supra n. 5, at 552.

13.    Douglas D. McFarland, Drop the Shoe: A Law of Personal Jurisdiction, 68 Mo. L. Rev. 753, 753 (2003).

14.    Id. at 755.

15.    Int’l Shoe Co. v. Wash., 326 U.S. 310 (1945).

16.    McFarland, supra n. 13, at 753.

17.    Int’l Shoe, 326 U.S. at 316.  For example, making prior negotiations in the forum state, continuing to deal with the forum state, advertising, marketing, or using distributors in forum state have all been held sufficient minimum contacts.  Kendrick D. Nguyen, Note, Redefining the Threshold for Personal Jurisdiction: Contact and the Presumption of Fairness, 83 B.U. L. Rev. 253, 258 (2003).

18.    McFarland, supra n. 13, at 753; see Int’l Shoe, 326 U.S. at 316.  Justice Black dissented, claiming that the minimum contacts test was vague and “introduced uncertain elements confusing the simple pattern.”  Int’l Shoe, 326 U.S. at 323 (Black, J. dissenting).

19.    Subrin et al., supra n. 5, at 551.

20.    Vt. Wholesale, 914 A.2d at 821 (citing Staffing Network, Inc. v. Pietropaolo, 764 A.2d 905, 908 (N.H. 2000)).

21.    Id. (citing Pritzker v. Yari, 42 F.3d 53, 60 (1st Cir. 1994)).

22.    Subrin et al., supra n. 5, at 574.

23.    See Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 447-49 (1952).

24.    See Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 416-17 (1984).

25.    Vt. Wholesale, 914 A.2d at 821 (N.H. 2006) (citing Staffing Network, 764 A.2d at 908).

26.    Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985) (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295 (1980).

27.    Subject matter jurisdiction can be described as “what court is empowered to hear this type of case.”  Subrin et al., supra n. 5, at 161.   “Unlike personal jurisdiction, the issue of subject matter jurisdiction may be raised at any time in the proceedings because it cannot be conferred where it does not already exist.”  Harley-Davidson Motor Co., Inc. v. Seacoast Harley-Davidson, Inc., 877 A.2d 211, 212 (N.H. 2005).

28.    “The doctrine of forum non conveniens  is ‘a device to limit the plaintiff’s choice of forums in order to prevent undue hardship to the defendant.’”  Vazifdar v. Vazifdar, 547 A.2d 249, 251 (N.H. 1988).  Factors to consider include: “the private interest of the litigant, relative ease of access to sources of proof, availability of compulsory process, the cost of obtaining attendance of willing witnesses, the possibility of view of premises if appropriate, the question of enforceability of the foreign judgment, and other concerns relating to the public interest.”  Leeper v. Leeper, 354 A.2d 137, 139 (N.H. 1976).

29.    Vt. Wholesale Bldg. Prods., Inc., 914 A.2d at 820.

30.    Id.

31.    Id. at 820-21.

32.    Id. at 821.

33.    Id.

34.    Id.

35.    Id.

36.    Id.  In New Hampshire, plaintiffs have the burden to establish personal jurisdiction over the defendant.  Id.

37.    RSA 510:4, I (2006) (“Any person who is not an inhabitant of this state and who, in person or through an agent, transacts any business within this state, commits a tortious act within this state . . .  submits himself, or his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from or growing out of the acts enumerated above”).  New Hampshire’s long-arm statute is construed broadly to give state courts jurisdiction over nonresidents.  Alacron, Inc. v. Swanson, 765 A.2d 1043, 1046 (N.H. 2000).

38.    Vt. Wholesale, 914 A.2d at 821.

39.    Id. (this requires the defendant to have minimum contacts with the forum state such that the suit does not offend “traditional notions of fair play and substantial justice”).

40.    Id. at 822 (citing Skillsoft Corp. v. Harcourt General, 770 A.2d 1115 (N.H. 2001)).  For the third factor, the Court will examine “the burden on the defendant, the forum State’s interest in adjudicating the dispute, the plaintiff’s interest in obtaining convenient and effective relief, the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and the shared interest of the several States in furthering fundamental substantive social policies.”  Id. (citing Phelps v. Kingston, 536 A.2d 740 (N.H. 1987)).

41.    Id. at 821.  General jurisdiction was not at issue.

42.    Id. (citing Alacron, 765 A.2d 1043).

43.    Id. at 822 (stating “Because there appears to be no dispute in this case that the alleged contacts relate to the cause of action, we proceed directly to the second factor”).

44.    Id. at 820-21.

45.    Id. at 822.  The third factor, whether “it would be fair and reasonable to require the defendant to defend the suit in New Hampshire,” was not evaluated.

46.    Id. (citing Metcalf, 802 A.2d 1221).

47.    Id. (citing Metcalf, 802 A.2d 1221).

48.    Burger King, 471 U.S. at 475; Asahi Metal Indus. Co., Ltd. v. Super. Ct. of Cal., Solano County, 480 U.S. 102, 109 (1987) (O’Connor, J., plurality opinion).

49.    Vt. Wholesale, 914 A.2d at 822.

50.    Id.

51.    Id.

52.    Id. at 822-23.

53.    Id.

54.    Id. at 823.  The Supreme Court came close in Brother Records, but that ruling was based on the fact that the defendants deliberately exploited the New Hampshire market by distributing a book through retail channels across the U.S.  Brother Records v. HarperCollins Publishers, 682 A.2d 714, 718 (N.H. 1996).

55.    444 U.S. 286.

56.    480 U.S. 102.

57.    444 U.S. at 295.

58.    Id. at 297.

59.    914 A.2d at 824.

60.    Id.

61.    Id.

62.    444 U.S. at 297-98.

63.    Vt. Wholesale, 914 A.2d at 824.  The Court decided that exercising personal jurisdiction over Asahi would be “unreasonable and unfair,” failing the third prong of the personal jurisdiction test.  Asahi, 480 U.S. at 116 (O’Connor, J., plurality opinion).

64.    Vt. Wholesale, 914 A.2d at 825.  Justice Stevens found that whether conduct is enough for purposeful availment requires a constitutional determination based on the volume, value, and hazardous character of the components.  Asahi, 480 U.S. at 122 (Stevens, J., concurring).  Some critics have said this shows “the degeneration of the personal jurisdiction doctrine.”  Pamela J. Stevens, Sovereignty and Personal Jurisdiction Doctrine: Up the Stream of Commerce Without a Paddle, 19 Fla. St. U. L. Rev. 105, 106 (1991).

65.    Asahi, 480 U.S. at 112 (O’Connor, J., plurality opinion).

66.    Id.

67.    Id.; see Humble v. Toyota Motor Co., Ltd., 727 F.2d 709, 710-11 (8th Cir. 1984).

68.    Vt. Wholesale, 914 A.2d at 825.

69.    Asahi, 480 U.S. at 117 (Brennan, J., concurring).

70.    Id.

71.    Id.

72.    Id.

73.    Vt. Wholesale, 914 A.2d at 825; see Kristin R. Baker, Comment, Products Liability Suits and the Stream of Commerce After Asahi: World-Wide Volkswagen is Still the Answer, 35 Tulsa L. Rev. 705 (2000).

74.    Shane A. Orians, Student Article, Exercising Personal Jurisdiction on the Internet: The Misapplication of the Asahi Metal Decision to “Cyberspace, 24 Ohio N.U. L. Rev. 843, 850 (1998).

75.    Vt. Wholesale, 914 A.2d at 825.

76.    Id. at 825-26.

77.    Id. at 826.

78.    Baker, supra n. 73, at 721; see Rodriguez v. Fullerton Tires Corp., 115 F.3d 81, 85 (1st Cir. 1997); Boit v. Gar-Tec Prods. Inc., 967 F.2d 671, 682-83 (1st Cir. 1992); see also, e.g., Bartow v. Extec Screen & Crushers, Ltd., 53 F. Supp. 2d 518, 524 (D. Mass 1999).

79.    Bridgeport Music, Inc. v. Still N the Water Publ’g, 327 F.3d 472, 479 (6th Cir. 2003) (citing Madara v. Hall, 916 F.2d 1510, 1519 (11th Cir. 1990) ([The defendant’s] mere awareness, if he indeed was aware, that a small number of copies of the magazine might find their way to Florida is not enough to justify the exercise of personal jurisdiction)); see also Coca-Cola Foods v. Empresa Commercial Internacional de Frutas S.A., 941 F. Supp. 2d 1175, 1181 (M.D. Fla. 1996) (“the Asahi Court stated that ‘a defendant’s awareness that the stream of commerce may or will sweep the product into the forum State does not convert the mere act of placing the product into the stream into an act purposefully directed toward the forum State’”).

80.    Bridgeport Music, 327 F.3d at 480.

81.    Vt. Wholesale, 914 A.2d at 826 (quoting World-Wide Volkswagen, 444 U.S. at 295).

82.    Id. at 828.

83.    Id.

84.    World-Wide Volkswagen, 444 U.S. at 296.

85.    Id.

86.    914 A.2d at 826 (quoting Asahi, 480 U.S. at 111 (O’Connor, J., plurality opinion)).

87.    Id. at 826 (emphasis added) (quoting World-Wide Volkswagen, 444 U.S. at 297).

88.    Id. (quoting Asahi, 480 U.S. at 111 (O’Connor, J., plurality opinion)).

89.    Id.

90.    Id. at 827.

91.    Id. at 826.

92.    Id. at 827 (citing World-Wide Volkswagen, 444 U.S. at 297).

93.    Id. (citing World-Wide Volkswagen, 444 U.S. at 297).

94.    Id. at 827 (citing Lesnick v. Hollingsworth & Vose Co., 35 F.3d 939, 945 (4th Cir. 1994)).

95.    Id. (citing Lesnick, 35 F.3d at 945).

96.    Id. (citing Asahi, 480 U.S. at 112 (O’Connor, J., plurality opinion)).

97.    Id.

98.    Id.

99.    Id.

100. Id.

101. Id.

102. Mark D. Standridge, Comment, Passive Voice: The Unclear Standards for Establishing Personal Jurisdiction in New Mexico via the World Wide Web, 35 N.M. L. Rev. 679, 679 (2005).

103. McFarland, supra n. 13, at 753.

104.   326 U.S. at 316.

105. 914 A.2d at 820.

106. See, e.g., Dagesse v. Plant Hotel N.V., 113 F. Supp. 2d 211, 220-221 (D.N.H. 2000) (“The internet, which is a worldwide interconnected computer network, undoubtedly challenges the “territorial-based concepts” that courts have traditionally applied to problems of personal jurisdiction.”); Slocum Enters., Inc. v. New Generations Devices, 2004 WL 1879886, at *6 (D. Or. 2004) (“The Internet site is somewhat more problematic. Use of the Internet creates difficult problems of personal jurisdiction because the Internet is not specifically targeted at people in any particular state or even country.”).

107. Standridge, supra n. 102, at 679.

108. Id. at 700.

109. Metcalf, 802 A.2d at 1225.

110. Id.

111. 914 A.2d t 826 (quoting Asahi, 480 U.S. at 111 (O’Connor, J., plurality opinion)).

112. Metcalf, 802 A.2d at 1221.

113. Id. at 1226 (citing Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D.Pa.1997)).

114. Id.

115. Id.

116. Id.

117. Id.

118. Id.

119. Id. at 1224.

120. Id.

121. Id.

122. Id.

123. Id. at 1226.

124. Id.

125. Id. at 1226-27 (citing Hanson v. Denckla, 357 U.S. 235 (1958)).

126. Hanson, 357 U.S. at 253.

127. Metcalf, 802 A.2d at 1227.

128. Id.

129. Id. at 1226-27.

130. Id. (“Consequently, even if we apply the Zippo test as encouraged by the plaintiff, we conclude that the defendant’s contacts through the Internet are insufficient to warrant the exercise of jurisdiction.”).

131. Id. at 1226.

132. Vt. Wholesale, 914 A.2d at 825-26.

133. Metcalf, 802 A.2d at 1227 (“Nothing indicates, therefore, that the defendant intentionally directed her activities at New Hampshire or was aware she was contracting with a New Hampshire resident until after the transaction was completed”).

134. Id. at 1226-27 (“the defendant did not engage in sufficient activity in this State to make it fair and reasonable for purposes of due process to require her to defend this claim here”).

135. See, e.g., Zippo Mfg. Co., 952 F. Supp. at 1124.  Many courts have opted for the approach laid out in Zippo Mfg. Co.  Standridge, supra n. 102, at 687.

136. Moki Mac Expeditions v. Drugg, 2007 WL 623805, at * 5 (Tex. 2007) (requiring additional conduct under Justice O’Connor’s test); Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 786 (Tex. 2005) (“we have noted that our cases appear to follow the “additional conduct” standard”); Song v. Trading, 2005 WL 2234087, at *3 (Tex. App. 2005) (“Texas follows the “additional conduct” standard as originally set out in Asahi”).

137. Witbeck v. Bill Cody’s Ranch Inn, 411 N.W.2d 439, 448 (Mich. 1987) (finding O’Connor’s position “not inconsistent” with previous Michigan cases); Hapner v. Rolf Brauchli, Inc., 273 N.W.2d 822, 823 (Mich. 1978) (citing McGee v. Int’l Life Ins. Co., 355 U.S. 220, 223 (1957)) (“Unless products of the manufacturer are distributed in this state pursuant to its marketing system in such a manner and to such an extent that it can properly be said that the manufacturer has ‘purposefully avail(ed) itself of the privilege of conducting activities’ within this state, it does not ordinarily have ‘substantial connection’”); Vargas v. Hong Jin Crown Corp., 636 N.W.2d 291, 298, 303 (Mich. App. 2001) (requiring more than mere placement of a product in the stream of commerce and stating that foreseeability is insufficient to exert personal jurisdiction); Clapper v. Freeman Marine Equip., Inc., 2000 WL 33418414, at *3 (Mich. App. 2000) (stating mere awareness its products could reach a state in the stream of commerce insufficient without purposefully actions directed toward the forum state).

138. “I believe that this Court should carefully review the large body of Internet case law from our sister states and deduce the essential principles for deciding when a defendant’s web activity constitutes the requisite minimum contacts for the assertion of personal jurisdiction. If we do not have an understanding of what these principles are, courts will have to decide each individual case on an ad hoc basis-hardly conducive to promoting uniformity and predictability in the law. I would therefore prefer to decide the Internet issue here with a published opinion offering the following analysis.”  Clapper, 2000 WL 33418414, at *6 (Saad, J., concurring).  Other courts have applied Justice O’Connor’s reasoning without adopting the “stream of commerce plus” test.  See, e.g., A. Uberti & C. v. Leonardo, 892 P.2d 1354, 1362 (Ariz. 1995) (noting and applying “plus” factors); Graham v. Machinery Distrib., Inc., 599 A.2d 984, 988 (Pa. Super. 1991) (applying “plus” factors).  Still other courts have agreed that foreseeability alone is not enough to warrant personal jurisdiction over a defendant, like New Hampshire, without declaring O’Connor’s test to be controlling.  See, e.g., Felix v. Bomoro Kommanditgesellschaft, 196 Cal.App.3d 106, 114-15 (Cal. App. 1988) (“the due process clause forbid[s] a court from exercising personal jurisdiction over a foreign corporation that merely places its products into the stream of commerce even though it may foresee that those products will ultimately wind their way into the forum state”); Hollingsworth & Vose Co. v. Connor, 764 A.2d 318, 330-31 (Mary. App. 2000) (finding awareness product would enter Maryland insufficient for minimum contacts).

139. Zippo Mfg. Co., 952 F. Supp. at 1124; Metcalf, 802 A.2d at 1226.  Something more than just creating a website is needed to expose a nonresident to personal jurisdiction.  Fix My P.C., LLC v. N.F.N. Assoc., Inc., 48 F. Supp. 2d 640, 642-43 (N.D. Tex. 1999); see also Bensusan Restaurant Corp. v. King, 937 F. Supp. 295, 301 (S.D.N.Y. 1996).

140. See, e.g., Bird v. Parsons, 289 F.3d 865, 874-875 (6th Cir. 2002); Pride Distributors, Inc. v. Nuzzolo, 2007 WL 1098286, slip op. at *3 (E.D. Mich. 2007); Majestec 125, LLC v. Sealift, Inc., 2006 WL 2039984, slip op. at 6 (W.D. Mich. 2006); Elk River, Inc. v. Garrison Tool & Die, Ltd., 2007 WL 926403, at *5 (Tex. App. 2007).  These types of websites indicate a specifically intended interaction with forum state residents.  Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 890 (6th Cir. 2002).  Websites that allow the exchange of information, which may fall in the in the middle of the sliding scale, can make defendants subject to personal jurisdiction depending on the level of interactivity and the commercial nature of the exchange.  See Mar-Eco, Inc. v. T & R and Sons Towing and Recovery, Inc., 837 A.2d 512, 517 (Pa. Super. 2003).

141. Zippo Mfg. Co., 952 F. Supp. at 1126.

142. Id. at 1125.

143. Id. at 1126.

144. Gencor Pac., Inc. v. Nature’s Thyme, LLC, 2007 WL 1225362, slip op. at *5 (N.D. Ill. 2007); Bombliss v. Cornelsen, 824 N.E.2d 1175, 1180 (Ill. App. Ct. 2005).

145. George S. May Int’l Co. v. Xcentric Ventures, LLC, 409 F. Supp. 2d 1052, 1059 (N.D. Ill. 2006).

146. Id.

147. Id.

148. Compuserve, Inc. v. Patterson, 89 F.3d 1257, 1263-65 (6th Cir. 1996).

149. Id. at 1260-61.

150. Id. at 1265.

151. Zippo Mfg. Co., 952 F. Supp. at 1124

152. Id.

153. Jennings v. AC Hydraulic A/S, 383 F.3d 546, 549-50 (7th Cir. 2004).

154. See, e.g., Zippo Mfg. Co., 952 F. Supp. at 1126.

155. Smith v. Hobby Lobby Stores, Inc. 968 F. Supp. 1356, 1365 (W.D. Ark. 1997); see also Clapper, 2000 WL 33418414, at *5 (referring to general jurisdiction).

156. Pavlovich v. Super. Ct., 58 P.3d 2, 10 (Cal. 2002).

157. Mink v. AAA Dev. LLC, 190 F.3d 333, 336-37 (5th Cir. 1999) (the website provided contact information and a mail-in order form but no orders were taken through the website); Michel v. Rocket Eng’g Corp., 45 S.W.3d 658, 678 (Tex. App. 2001) (website allowed customers to send information to defendant, but defendant would follow up by personal contact).

158. Exito Elecs., Co., Ltd. v. Trejo, 166 S.W.3d 839, 858 (Tex. App. 2005).

159. Island Oasis Frozen Cocktail Co., Inc. v. Fla. Bulk Sales, Inc., 2004 WL 557300, at *1 (Mass. Super. 2004) (quoting Justice O’Connor’s Asahi holding); Clapper, 2000 WL 33418414, at *5; Lorix v. Crompton Corp., 680 N.W.2d 574, 580-81 (Minn. App. 2004) (quoting Justice O’Connor’s Asahi holding and stating additional conduct is needed); Juelich v. Yamazaki Mazak Optonics Corp., 670 N.W.2d 11, 18 (Minn. App. 2003) (quoting Justice O’Connor’s Asahi holding and requiring further contacts with Minnesota for personal jurisdiction to be valid).

160. Fix My P.C., 48 F. Supp. 2d at 644.

161. Rollin v. William V. Frankel & Co., Inc., 996 P.2d 1254, 1258-61 (Ariz. 2000).  “That Frankel’s and HTM’s quotes were accessible to broker-dealers around the country who might then purchase and distribute stock to ultimate customers anywhere, however, does not equate to a purposeful, focused distribution of their stock quotes to customers in Arizona or to any other particular state.”  Id. at 1259.

162. ICP Solar Techs., Inc. v. TAB Consulting, Inc., 413 F. Supp. 2d 12, 19 (D.N.H. 2006).

163. Id. at 20.

164. Id. at 19.

165. Id. at 19-20.

166. Id. at 19.

167. Vt. Wholesale, 914 A.2d at 826; Metcalf, 802 A.2d at 1226.

168. See Smith, 968 F. Supp. at 1365.

169. See ICP Solar Techs., 413 F. Supp. 2d at 19; Bensusan Restaurant Corp., 937 F. Supp. at 301; Fix My P.C., 48 F. Supp. 2d at 642-43; Pavlovich, 58 P.3d at 10.

170. Mink, 190 F.3d at 336-37; Exito Elecs., 166 S.W.3d at 858; Michel, 45 S.W.3d at 678.

171. See Zippo Mfg. Co., 952 F. Supp. at 1126

172. See Compuserve, 89 F.3d at 1263-65; George S. May Int’l, 409 F. Supp. 2d at 1059.

173. See Vt. Wholesale, 914 A.2d at 825.

174. 802 A.2d at 1226-27.

175. Id. (citing Hanson, 357 U.S. 235).

176. Fenn v. Mleads Enters., Inc., 137 P.3d, 706 713 (Utah 2006); see Zippo Mfg. Co., 952 F. Supp. at 1124 (“If the defendants enter into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper”); see also Internet Doorway, Inc. v. Parks, 138 F. Supp. 2d 773, 774 (S.D. Miss. 2001) (finding personal jurisdiction proper for sending unsolicited emails); Verizon Online Servs. Inc. v. Ralsky, 203 F. Supp. 2d 601, 622-23 (E.D. Va. 2001) (finding personal jurisdiction proper for sending email solicitations).

177. See Marycle, LLC v. First Choice Internet, Inc., 890 A.2d 818, 834-35 (Mary. Ct. Spec. App. 2006).

178. See Fenn, 137 P.3d at 714.

179. 802 A.2d at 1226-27.

180. 137 P.3d 706.

181. Id. at 714.

182. Id. at 709.

183. Id. at 713-14.  Utah uses the same sliding scale analysis for websites as New Hampshire.  Id. at 713.

184. Id. at 714.

185. Id.

186. Id.

187. Id.  The plaintiff never responded to the email and did not contact the defendant through other means.  Id.  The Utah Supreme Court also noted that even if personal jurisdiction was proper, it would still offend the traditional notions of fair play and substantial justice because a rule requiring defendants to know all state laws where emails were sent and be prepared to litigate anywhere in the country imposed a substantial burden on potential defendants.  Id. at 715.

188. 890 A.2d 818.

189. Id. at 835.

190. Id. at 834.

191. Id. at 829.

192. Id. at 823-24.

193. Id. at 833; see also Beyond Sys., Inc. v. Keynetics, Inc., 422 F. Supp. 2d 523, 543-44 (D. Md. 2006) (“Accordingly, the core issue is whether Defendants in some material way “directed” the allegedly offensive e-mail messages into this State, either on its own or by agent; otherwise, given the obvious unsolicited nature of the requests that Marylanders make purchases through the Internet, it is clear that the senders manifested an intent to do business here and, to the extent that their messages are found to be false or misleading, that they created in a person within the State a potential cause of action under Maryland law.”).

194. Marycle, LLC, 890 A.2d at 835.

195. Id.; Fenn, 137 P.3d at 714.

196. Fenn, 137 P.3d at 714.

197. Id.

198. Marycle, LLC, 890 A.2d at 835.

199. Id. at 823-24.

200. See Fenn, 137 P.3d at 714; see also Merlione, Inc. v. Shoom, Inc., 2005 WL 2524362, at *4 (Mass. Super. 2005) (“emailing Massachusetts businesses to verify the appearance of their advertisements in publications located throughout the United States does not warrant the extension of personal jurisdiction over the defendant” because emails were “incidental” to obligations of serving such out-of-state clients and because there was “no two-way contact between the defendant and the Massachusetts companies” in these email notifications).

201. See Marycle, LLC, 890 A.2d at 835; Metcalf, 802 A.2d at 1226-27.  The more difficult and unanswered question is what happens when a plaintiff reviews an email from a defendant remotely in a location other than where the plaintiff principally conducts business.  See M.G. Incentives, Inc. v. Marchand, 2001 WL 96223, at *3 (Minn. App. 2001).

202. See Vt. Wholesale, 914 A.2d at 825; but see Hanks v. Kinetics Group, Inc., 878 So.2d 782, 786 (La. App. 2004) (stating that basing personal jurisdiction on a single email “would offend the traditional notions of fair play and substantial justice”).

203. Cheryl L. Conner, Note, Compuserve v. Patterson: Creating Jurisdiction Through Internet Contacts, 4 Rich. J.L. & Tech. 9, 60 (1998).

204. Id. at 73.

205. Savage Universal Corp. v. Grazier Constr., Inc., 2004 WL 1824102, at *8 (S.D.N.Y. 2004).

206. Kline v. Williams, 2006 WL 758459, at *2 (D.D.C. 2006) (“the challenged conduct at hand . . . presents the difficult yet extremely important task of adapting traditional standards of personal jurisdiction to Internet activity”); Maritz Inc. v. Cybergold Inc., 947 F. Supp. 1328, 1332 (E.D. Mo. 1996) (“The internet . . . raises difficult questions regarding the scope of court’s personal jurisdiction in the context of due process jurisprudence”); Savage Universal Corp., 2004 WL 1824102, at *8 (S.D.N.Y. 2004) (“The question of personal jurisdiction over foreign defendants has become increasingly complex in the internet age”).

207. Zippo Mfg. Co., 952 F. Supp. at 1123.

208. Compuserve, 89 F.3d at 1262.

209. Clapper, 2000 WL 33418414, at *7 (Saad, J., concurring) (referring to general jurisdiction).

210. See Jennings, 383 F.3d at 550.

211. Hanson, 357 U.S. at 250-51; Jennings, 383 F.3d at 550.

212. See, e.g., Marycle, LLC, 890 A.2d at 835; Metcalf, 802 A.2d at 1226; Fenn, 137 P.3d at 714. 

213. Vt. Wholesale, 914 A.2d at 826.

214. Id. at 827; see also Burger King, 471 U.S. at 472.

215. ICP Solar Techs., 413 F. Supp. 2d at 19 (citing Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d 446, 454 (3d Cir. 2003)).

216. Vt. Wholesale, 914 A.2d at 825-26.

217. Simon v. Philip Morris, Inc., 86 F. Supp. 2d 95, 125 (E.D.N.Y. 2000).



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