C. Cook, App. v. Advanced Auto Brokers, Llc., Dba Carmax Brokers, Res.

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON *2> - -"

C. COOK, *sr <~. ) No. 71011-7-1 Appellant, ) DIVISION ONE X v.

ADVANCED AUTO BROKERS, LLC, ) UNPUBLISHED OPINION dba CARMAX BROKERS, ) FILED: January 20, 2015 Respondent.

Becker, J. —Whether personal jurisdiction lies over a nonresident

defendant depends on the nature and quality of the defendant's acts in or

directed toward Washington. In this case, the alleged act was the nonresident

seller's listing for sale a used vehicle on the popular Internet auction web site,

eBay. Because the Washington resident buyer fails to establish facts showing

that the defendant, a New York-based limited liability company, purposely availed

itself of the privilege of transacting business in the State of Washington, we affirm

the trial court's dismissal of the complaint for want of in personam jurisdiction.

FACTS

On or about March 12, 2012, C. Cook, a Washington resident, was the

winning bidder for a 2007 Jeep Grand Cherokee listed for general unrestricted

auction on the web site eBay.com. The seller was Advanced Auto Brokers Inc., No. 71011-7-1/2

a New York limited liability company based in Syracuse, New York. The eBay

auction listing stated that the car was located in Philadelphia, Pennsylvania, and

identified the seller as Carmax Brokers, Advanced Auto's eBay auction identifier

for the web site. The listing also stated that the buyer would be responsible for

arranging for delivery or pick up of the vehicle. Cook flew to Philadelphia, paid

$10,900 for the vehicle, and drove it back to Washington.

Cook experienced problems with the vehicle while enroute to Washington.

After arriving in Washington, Cook took the Jeep to a dealer and learned that the

exhaust system needed to be replaced. According to Cook, the vehicle as-is

does not meet licensing and registration standards in Washington.

In December 2012, Cook filed a complaint against Advanced Auto in King

County Superior Court. He sought damages of $10,900—the amount of the

purchase price. He also claimed that the seller "obscured" the vehicle's defects

by resetting "error codes." In addition, Cook invoked "provisions in Washington

State law applying to deceptive trade practices" and requested treble damages.

Cook alleged no facts in his complaint relevant to the court's jurisdiction over the

nonresident seller.

After Advanced Auto failed to appear in the action, Cook filed a motion for

default. In its order on the motion, the court referred to other "filings" by an

individual co-owner of Advanced Auto, but noted that Cook's motion for default

was "the only motion that has been properly noted and is before the Court."

However, in view of the fact that the seller's argument opposing personal No. 71011-7-1/3

jurisdiction raised in these unspecified filings appeared to have merit, the court

denied the motion for default.

Cook propounded requests for admission. After Advanced Auto failed to

respond, Cook filed a "Motion to Deem Admitted" his requests for admission. In

its order on the motion, the court again noted that Advanced Auto had not yet

appeared through counsel and had not properly filed a motion to obtain a ruling

on the jurisdictional issue. The court directed the defendant, if intending to assert

a jurisdictional defense, to file an appropriate motion through counsel within 30

days. The court otherwise ordered Advanced Auto to respond to outstanding

discovery within 45 days. The court stated that if the defendant failed to take one

of these actions, Cook could renote his motion.

In the meantime, Cook noted Advanced Auto's deposition in Washington.

After a representative failed to appear, Cook filed a second "Motion to Deem

Admitted" and a motion seeking to strike Advanced Auto's defenses.

In denying these motions, the court noted that "on two prior occasions, this

Court has hinted rather broadly that if the defendant properly brought a motion to

dismiss for lack of personal jurisdiction, this would very likely be viewed

favorably." The court further stated:

It should be understood that the Court is reluctant to summarily resolve the ultimate issues in this case—issues that deserve to be addressed on their merits and likely in the home state of the defendant rather than that of the plaintiff. Nonetheless, since the defendant LLC was properly served with the Complaint and has neither answered nor properly noted a motion to dismiss on jurisdictional grounds, the Court may have to do just that and transform the dispute into an interstate action to collect on a judgment. No. 71011-7-1/4

The court granted Advanced Auto an additional 30 days to answer the complaint

and respond to discovery or file a motion to dismiss. The court stated that if this

deadline passed without action by Advanced Auto, the court would enter an order

granting Cook's motions.

A week later, counsel filed a notice of appearance on behalf of Advanced

Auto and a motion to dismiss. The court considered Advanced Auto's motion

and Cook's opposition and dismissed the suit for lack of jurisdiction. Cook

appeals.

STANDARD OF REVIEW

The plaintiff has the burden of establishing jurisdiction. SeaHAVN, Ltd. v.

Glitnir Bank, 154 Wn. App. 550, 563, 226 P.3d 141 (2010). When a motion to

dismiss for lack of personal jurisdiction is resolved without an evidentiary hearing,

the plaintiff must only make a prima facie showing of jurisdiction. Precision Lab-

Plastics, Inc. v. Micro Test. Inc., 96 Wn. App. 721, 725, 981 P.2d 454 (1999).

Where, as here, the court considers matters outside the pleadings in ruling on a

motion to dismiss for lack of jurisdiction, we treat the motion as a motion for

summary judgment. Freestone Capital Partners, L.P. v. MKA Real Estate

Opportunity Fund I. LLC, 155 Wn. App. 643, 653, 230 P.3d 625 (2010). We

review the facts and reasonable inferences in the light most favorable to the

nonmoving party. Freestone Capital Partners, 155 Wn. App. at 653-54.

PERSONAL JURISDICTION

Washington courts may exercise personal jurisdiction over an out-of-state

defendant if authorized by our long-arm statute, RCW 4.28.185(1), and No. 71011-7-1/5

consistent with federal and state constitutional guarantees of due process. In re

Marriage of Yocum, 73 Wn. App. 699, 702, 870 P.2d 1033 (1994). Our long-arm

statute provides that an out-of-state defendant subjects himself to personal

jurisdiction in Washington by transacting business within this state, among other

conduct. RCW 4.28.185(1 )(a). Our long-arm statute is designed to be

coextensive with federal due process. Failla v. FixtureOne Corp., Wn.2d ,

336P.3d 1112, 1116(2014).

The principles that underlie federal due process as it relates to long-arm

jurisdiction are well settled. In the seminal case of International Shoe Co. v.

State of Washington, Office of Unemployment Compensation & Placement et al.,

326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945), the United States Supreme

Court determined that due process requires that in order to subject a defendant

to jurisdiction, he must have certain "minimum contacts" with the forum such that

"maintenance of the suit does not offend 'traditional notions of fair play and

substantial justice.'" Int'l Shoe, 326 U.S. at 316, quoting Milliken v. Meyer, 311

U.S. 457, 463, 61 S. Ct. 339, 85 L. Ed. 278 (1940). Due process protects an

individual's liberty interest in not being subject to the binding judgment of a forum

with which he has established no meaningful "contacts, ties, or relations." Int'l

Shoe, 326 U.S. at 319. Accordingly "as a general rule, the sovereign's exercise

of power requires some act by which the defendant 'purposefully avails itself of

the privilege of conducting activities within the forum State, thus invoking the

benefits and protections of its laws.'" J. Mclntvre Machinery, Ltd. v. Nicastro,

U.S. _, 131 S. Ct. 2780, 2787, 180 L. Ed. 2d 765 (2011), Quoting Hanson v. No. 71011-7-1/6

Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958). By

requiring that individuals have fair warning that a particular activity may subject

[them] to the jurisdiction of a foreign sovereign, the Due Process Clause "gives a

degree of predictability to the legal system that allows potential defendants to

structure their primary conduct with some minimum assurance as to where that

conduct will and will not render them liable to suit." World-Wide Volkswagen

Corp. v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980);

Burger King Corp. v. Rudzewicz. 471 U.S. 462, 471-72, 105 S. Ct. 2174, 85 L.

Ed. 2d 528 (1985). "The plaintiff cannot be the only link between the defendant

and the forum." Walden v. Fiore. U.S. , 134 S. Ct. 1115, 1122, 188 L.Ed.

2d 12 (2014). Rather, "due process requires that a defendant be haled into court

in a forum State based on his own affiliation with the State, not based on the

'random, fortuitous, or attenuated' contacts he makes by interacting with other

persons affiliated with the State." Fiore, 134 S. Ct. at 1123, quoting Burger King,

471 U.S. at 475.

In accordance with these principles, for Washington courts to exercise

personal jurisdiction over a nonresident defendant, our Supreme Court has set

forth three requirements:

(1) The nonresident defendant. . . must purposefully do some act or consummate some transaction in the forum state; (2) the cause of action must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature, and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation. No. 71011-7-1/7

Tvee Constr. Co. v. Dulien Steel Prods., Inc., 62 Wn.2d 106, 115-16, 381 P.2d

245 (1963) (footnotes omitted). These factors embody the "minimum contacts"

inquiry under International Shoe and encompass both the statutory and due

process concerns of exercising personal jurisdiction. FutureSelect Portfolio

Mgmt.. Inc. v. TremontGrp. Holdings, Inc., 180 Wn.2d 954, 963, 331 P.3d 29

(2014).

Washington's purposeful availment standard "is not a mechanical" one,

and "we consider the quality and nature of the defendant's activities." Wash.

Eguip. Mfg. Co. v. Concrete Placing Co., 85 Wn. App. 240, 246, 931 P.2d 170

(1997). A defendant may purposefully avail himself by initiating a transaction

with the plaintiff in the forum state in contemplation that some phase of the

transaction will take place in that jurisdiction. SeaHAVN, 154 Wn. App. at 565.

Mere execution of a contract with a Washington resident will not suffice; the court

must examine the circumstances of the entire transaction, including

contemplated future consequences and the parties' actual course of dealing.

SeaHAVN, 154 Wn. App. at 565-66. Physical presence in Washington is not

required. See Precision, 96 Wn. App. at 727 n.5 ("locus of [electronic]

negotiations culminating in a contract is not dispositive"). The "salient factor"

may be whether the defendant negotiates an ongoing business relationship that

has substantive effects and creates future obligations in Washington. Precision,

96 Wn. App. at 727 n.5.

In this case, we apply these standards to a method of transacting

business not envisioned when the standards were adopted. EBay provides a No. 71011-7-1/8

forum for consumers to buy and sell new or used goods in an auction style

format over the Internet. "In 1995 eBay was one of the first to pioneer what has

now become a ubiquitous form of e-commerce." Sayeedi v. Walser, 15 Misc. 3d

621, 622, 835 N.Y.S.2d 840 (N.Y. Civ. Ct. 2007). The typical eBay auction sale

transpires as follows:

"A seller advertises an item on the eBay interface, using a template. The seller establishes a minimum initial bid and a deadline for the item's auction to end. Buyers may then bid for the item through the eBay interface, which for each item posts the current bid and the time remaining. At the expiration of the auction period, the highest bidder wins the item. EBay puts the seller and winning buyer in contact by email to arrange payment and shipping."

Sayeedi, 15 Misc. 3d at 626, quoting Action Taper, Inc., v. Weaver, No. Civ.

3:05-CV-1693-H, 2005 WL 3199706, at *2 n.2 (N.D. Tex. Nov. 23, 2005).

This is not the first case to consider the question of jurisdiction arising

from a sale involving an eBay Internet auction. In a representative case,

Boschetto v. Hansing, 539 F.3d 1011 (9th Cir. 2008), cert, denied, 555 U.S. 1171

(2009), a Wisconsin seller advertised a vintage automobile on eBay. Upon

delivery of the automobile, Boschetto—the winning bidder and a California

resident—noticed the automobile was not in the "awesome" condition advertised

and sued the seller in the Northern District of California. Boschetto, 539 F.3d at

1014. The district court dismissed for lack of personal jurisdiction and the Ninth

Circuit affirmed.

In concluding that the Wisconsin seller had insufficient contacts with

California, the court focused on the isolated nature of the transaction. Boschetto,

539 F.3d at 1019. The sale created no ongoing obligations for the seller in

8 No. 71011-7-1/9

California—in fact, it was the buyer who arranged to have the vehicle transported

from Wisconsin to California. Moreover, the eBay advertisement was no more

aimed at California than it was the seller's home state of Wisconsin. It was the

plaintiff buyer who unilaterally created the link to California by placing the winning

bid. The Ninth Circuit held that the single transaction for the sale of a vehicle

over eBay did not satisfy the minimum contacts requirement, noting that "on the

facts of this case—a one-time transaction—the use of eBay as the conduit for

that transaction does not have any dispositive effect on jurisdiction." Boschetto,

539 F.3d at 1019. The court observed that "at bottom, the consummation of the

sale via eBay here is a distraction from the core issue: This was a one-time

contract for the sale of a good that involved the forum state only because that is

where the purchaser happened to reside, but otherwise created no 'substantial

connection' or ongoing obligations there." Boschetto, 539 F.3d at 1019.

The majority of decisions involving an isolated eBay transaction are

consistent with Boschetto. See, e.g., Sayeedi, 15 Misc. 3d at 628 ("No evidence

was provided by plaintiff as to defendant's overall eBay statistics, experience, or

of any marketing directed at potential customers, designed for instance, to

welcome bids from New Yorkers or any other acts that indicate defendant may

be purposely availing himself specifically to the business of New Yorkers or any

desire to take advantage of New York law."); Karstetter v. Voss, 184 S.W.3d 396,

405 (Tex. Ct. App. 2006) ("no evidence that appellees traveled to Kansas or

engaged in other transactions with appellant or other Kansas residents either through the eBay service or otherwise"). Some courts have focused on the fact No. 71011-7-1/10

that the seller on an Internet auction web site has little or no control over who will

ultimately be the highest bidder. For instance, in Metcalf v. Lawson, 148 N.H. 35,

802 A.2d 1221, 1227 (2002), the New Hampshire Supreme Court held that a

New Jersey defendant who sold an excavator to a New Hampshire resident via

eBay did not have sufficient contacts to warrant the exercise of jurisdiction in

New Hampshire when there was no indication that the seller "intentionally

directed her activities at New Hampshire or was aware she was contracting with

a New Hampshire resident until after the transaction was completed." See also

Winfield Collection. Ltd. v. McCaulev, 105 F. Supp. 2d 746 (E.D. Mich. 2000)

(two sales to Michigan residents through eBay, standing alone, were insufficient

to establish jurisdiction in Michigan over the nonresident defendant, taking

judicial notice that because the function of an auction is to permit the highest

bidder to purchase the property offered for sale, the choice of the bidder is

beyond the seller's control).

Cook contends that Boschetto actually supports jurisdiction over

Advanced Auto. His argument is based on the following observations made by

that court:

[the plaintiff] does not allege that any of the Defendants are using eBay to conduct business generally. He does not allege that Defendants conduct regular sales in California (or anywhere else) via eBay. . . . This is a distinction with a difference, as the cases that have found that jurisdiction was proper based on eBay sales relied heavily on the fact that the defendant was using the platform as a broader vehicle for commercial activity. See, e.g., Crummev v. Morgan, 965 So.2d 497, 500 (Ct.App.La. 2007) (evidence of two prior sales to Louisiana residents in prior year); Dedvukai v. Malonev, 447 F.Supp.2d 813, 822-23 (E.D.Mich. 2006) ("Although the Court's research has not disclosed any personal jurisdiction

10 No. 71011-7-1/11

cases involving the use of eBay auctions as a commercial seller's primary marketing vehicle, it is clear from the record that Defendants' use of eBay is regular and systemic."); Malcolm v. Esposito, 2003 WL 23272406 at *4 (Va.Cir.Ct. Dec. 12, 2003) ("Defendants are commercial sellers of automobiles who, at the time the BMW was sold, were represented on eBay as 'power sellers' with 213 transactions."). . . . Where eBay is used as a means for establishing regular business with a remote forum such that a finding of personal jurisdiction comports with "traditional notions of fair play and substantial justice," International Shoe Co.. 326 U.S. at 316, 66 S. Ct. 154, then a defendant's use of eBay may be properly taken into account for purposes of establishing personal jurisdiction.

Boschetto, 539 F.3d at 1018-19.1

This reasoning is indeed in line with those cases that have found

jurisdiction focusing on the sophistication and reach of the seller's business and

importantly, multiple transactions involving the forum. For instance, the Supreme

Court of Oklahoma recently determined that Oklahoma courts had jurisdiction

over a nonresident commercial vehicle seller based on the totality of contacts

between the seller and the state. Guffev v. Ostonakulov, 321 P.3d 971, 978

(2014). The defendant, an active "power seller" on eBay, averaged 12 to 35 car

listings every day and had advertised almost 1,000 cars on the site. Guffev, 321

P.3d at 974. In addition, the seller had conducted multiple Oklahoma sales and

had ongoing obligations in Oklahoma in the form of a warranty agreement.

Guffev, 321 P.3d at 978; see ajso Aero Toy Store, LLC v. Grieves, 631 S.E.2d

734, 740-41 (Ga. Ct. App. 2006) (plaintiff established sufficient minimum contacts

1 Cook also relies on this court's decision in Brown v. Garrett, 175 Wn. App. 357, 306 P.3d 1014 (2013). That case involves the jurisdiction of a Texas court over a commercial seller of used cars in Washington. However, while that transaction began with an eBay listing, the parties ultimately negotiated directly for the purchase of the car and terminated the eBay auction. 11 No. 71011-7-1/12

with the State of Georgia to warrant exercise of personal jurisdiction when the

defendant, who sold plaintiffa car through an eBay car auction, regularly solicited

business in Georgia through the Internet and made substantial revenue from

sales to Georgia residents).

Cook argues that Advanced Auto is likewise primarily, if not exclusively,

an Internet seller, and Washington courts have jurisdiction because of its regular

and systematic use of a nationwide Internet platform. Cook contends that

Advanced Auto had 390 "feedbacks" from customers who purchased cars though

eBay auctions. In making this assertion, Cook presumably relies on a printout of

the eBay auction page he submitted in support of his motion for default. The

number 390 appears on the document next to the name Carmax Brokers. Also

on the document, the words "top-rated seller" and "100% positive feedback"

appear under the box entitled "Seller Info." The document appears to suggest

that the jeep sold to Cook was not the first eBay listing or sale by Advanced Auto

and Cook's explanation of the document is certainly plausible. However, apart

from speculation, nothing in the record establishes the meaning of the 390 figure.

In briefing below and before this court, Cook alleges that the principal owner of

Advanced Auto told him that the Internet is the seller's primary forum for sales.

But no evidence in the record supports his allegations about what the owner told

him or his interpretation of the eBay auction printout.

The evidence does not reveal the number of cars Advanced Auto has sold

through eBay auctions or whether, apart from the sale at issue, it has sold any

other cars to Washington residents. Given the distance between the seller's

12 No. 71011-7-1/13

place of business and Washington State, it seems unlikely that Washington

buyers represent a substantial portion of its business. The declaration of the

principal owner submitted in support of Advanced Auto's motion to dismiss states

that the company "does business in New York and Pennsylvania" and "conducts

no regular sales or business in the State of Washington via e-Bay, the Internet as

a whole, or otherwise." Nothing in the record before us suggests that this is not

the case.

Even if we could reasonably conclude from the record that Advanced Auto

is a ubiquitous seller of vehicles on eBay, if no Washington residents, apart from

Cook, purchased those vehicles, the evidence still would not establish a sufficient

relationship with Washington State. And as our Supreme Court has recently

reiterated, "the central concern of the federal constitutional inquiry is the

relationship between the defendant, the forum, and the litigation." Failla, 336

P.3d at 1116 (emphasis added); see also J. Mclntvre, 131 S. Ct. at 2792 (Breyer,

J., concurring in the judgment) (requiring only knowledge or expectation that a

producer's products might be sold in any state would jettison the accepted

approach to the question of whether it is fair to subject a defendant to suit in a

jurisdiction by considering the relationship between the defendant, the forum, and

the litigation). It is well settled that jurisdiction does not "travel with the chattel"

and that the defendant's contact with the forum must be more than the result of

random or fortuitous events. World-Wide Volkswagen, 444 U.S. at 296; Burger

King, 471 U.S. at 475.

13 No. 71011-7-1/14

As the Boschetto court aptly remarked, use of eBay clearly cannot dig a

"virtual moat around the defendant, fending off jurisdiction in all cases."

Boschetto, 539 F.3d at 1019. On the other hand, traditional notions of

sovereignty underlying personal jurisdiction must not be abandoned merely

because a case involves technological advances that make it easier to transact

business across state lines. In World-Wide Volkswagen, 444 U.S. at 292-93, the

court stated:

the limits imposed on state jurisdiction by the Due Process Clause, in its role as a guarantor against inconvenient litigation, have been substantially relaxed over the years. As we noted in McGee v. International Life Ins. Co.. [355 U.S. 220,] 222-223, [78 S.Ct. 199, 201, 2 L. Ed. 2d 223 (1957)], this trend is largely attributable to a fundamental transformation in the American economy: "Today many commercial transactions touch two or more States and may involve parties separated by the full continent. With this increasing nationalization of commerce has come a great increase in the amount of business conducted by mail across state lines. At the same time modern transportation and communication have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity." The historical developments noted in McGee. of course, have only accelerated in the generation since that case was decided. Nevertheless, we have never accepted the proposition that state lines are irrelevant for jurisdictional purposes, nor could we, and remain faithful to the principles of interstate federalism embodied in the Constitution.

Here, the use of eBay as a medium does not alter the nature of the transaction at

issue nor does it create sufficient minimum contacts with Washington to extend

jurisdiction over the nonresident seller.

Cook also argues that he was entitled to a default judgment, that

discovery sanctions were warranted and that, in essence, the seller received

preferential treatment because the court advised Advanced Auto to move to

14 No. 71011-7-1/15

dismiss and granted extensions. But Cook fails to appreciate that absent

jurisdiction, the court had no authority to enter a judgment against the seller or

impose sanctions. See Metro. Fed. Sav. & Loan Ass'n of Seattle v. Greenacres

Mem'l Ass'n, 7 Wn. App. 695, 699, 502 P.2d 476 (1972) (judgment entered by

court without jurisdiction over the parties is void). The trial court did not err in

granting the motion to dismiss.

Affirmed.

\^ecke^. WE CONCUR:

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