¶1 The only question presented on appeal is whether the district court possesses in personam jurisdiction over a Tennessee individual and corporation, who sold a motor vehicle to an Oklahoma resident. We hold that the district court possesses jurisdiction. The totality of contacts in this cause indicates that the exercise of in personam jurisdiction is proper and does not violate the due process rights of Defendants/Appellees.
Alleged Facts and Procedural History
¶2 Guffey is a resident of Oklahoma County, Oklahoma. Ostonakulov is a resident of the State of Tennessee and MNI is a Tennessee corporation with its principle place of business in Nashville, Tennessee. MNI operates a used car lot in Nashville, Tennessee. On or about June 11, 2012, Guffey was the winning bidder on a used 2009 Volvo XC 90 listed for auction on eBay, Inc. by MNI. Guffey, after receiving the vehicle, determined that the vehicle was not in the condition advertised, and filed a Petition in the District Court of Oklahoma County on December 19, 2012. In her petition, Guffey alleged Defendants engaged in fraud as well as violations of the Oklahoma Consumer Protection Act, 15 O.S. §751 et seq.
¶3 On May 10, 2013, Defendants moved to dismiss for lack of personal jurisdiction pursuant to 12 O.S. 2011 §2012(B)(2), on the grounds that they did not possess minimum contacts with Oklahoma sufficient for the state to exercise in personam jurisdiction without implicating due process concerns.1 Guffey filed a Response to Defendants' Motion to Dismiss and Motion to Allow Amended Petition on June 24, 2013, arguing that in personam jurisdiction was proper because the minimum contacts requirement has been satisfied. Guffey's Response also included an affidavit by her attesting to the facts she alleges are sufficient to provide for in personam jurisdiction.
¶4 Guffey's affidavit provides that she bid on the Volvo that is the subject of the underlying dispute on eBay in part based on a thirty-day limited warranty after the purchase, included in the record. Guffey's affidavit indicates that after she bid, but several days before the closing date of the auction, she received an email solicitation from Ostonakulov suggesting she contact him by phone and negotiate a buy it now price for the vehicle. She chose not to do so, but only after calling and speaking with him personally about the matter. After she discovered that she won the auction with the highest bid, she asserts she had her father call and speak to Ostonakulov about the final details of the matter and payment instructions. She then signed a purchase agreement that was mailed to her father's offices in Oklahoma City by Ostonakulov, and returned it to Tennessee. Ostonakulov also helped to arrange shipping of the vehicle to Oklahoma, where Guffey took delivery.
¶5 Guffey further asserts that this eBay sale is not an isolated transaction for Defendants, and that they are an active "power seller" on eBay, averaging 12-35 cars for sale every day, and advertising 942 cars on the site. Guffey also asserts that she knows of at least three cars sold by Defendants in the state of Oklahoma, and believes they have sold more than thirty cars to residents of the state.
¶6 With leave of the trial court, Guffey filed an Amended Petition on July 28, 2013, containing many of the facts she first provided in her affidavit, alleging an exercise of in personam jurisdiction over the Defendants by the trial court was proper. Defendants again moved to dismiss on July 17, 2013, asserting that because Guffey's Amended Petition contained no affidavit or other written materials, to support its stated facts, that would support its jurisdictional allegations, it was facially deficient and did not comport with a prima facie showing of personal jurisdiction over Defendants.
¶7 Guffey filed a response to the Defendants' second motion to dismiss on August 2, 2013, asserting that her Amended Petition and the affidavit accompanying her Response to Defendants' first motion to dismiss were sufficient to illustrate the existence of minimum contacts so as to justify the trial court's exercise of in personam jurisdiction, and requesting time from the trial court to conduct discovery with regard to Ostonakulov's contacts with the State of Oklahoma.
¶8 The trial court held a hearing on Defendants' second Motion to Dismiss on November 6, 2013, where the parties argued the issue of in personam jurisdiction. In an order dated September 20, 2013, the trial court sustained Defendants' Motion to Dismiss and dismissed the action for lack of in personam jurisdiction over Defendants.2 Guffey appealed, and this cause was retained on the Court's own motion and assigned to this office on November 20, 2013.
Standard of Review
¶9 In Oklahoma, a special appearance with a motion to dismiss is the proper method for challenging in personam jurisdiction. Powers v. District Court of Tulsa County, 2009 OK 91, ¶7, 227 P.3d 1060; In re Turkey Creek Conservancy District, 2008 OK 8, n. 4, 177 P.3d 558; Southard v. Oil Equipment Corp., 1956 OK 74, 296 P.2d 780. In Powers, this Court explained that a defendant challenging in personam jurisdiction has an initial procedural burden to raise the facts challenging in personam jurisdiction, usually by accompanying a motion to dismiss with an affidavit or a statement from the attorney what proof would be shown at an evidentiary hearing, to be followed by a response from the party asserting jurisdiction also accompanied by affidavits. Powers, 2009 OK 91, ¶7.
¶10 When in personam jurisdiction is challenged, the jurisdiction over a non-resident defendant cannot be inferred, but instead must affirmatively appear from the trial court record, and the burden of proof in the trial court is upon the party asserting that jurisdiction exists. Powers, 2009 OK 91, ¶7; Gilbert v. Security Financial Corp., 2006 OK 58, ¶2, 152 P.3d 165; Conoco, Inc. v. Agrico Chemical Co., 2004 OK 83, ¶20, 115 P.3d 829. The determination of in personam jurisidiction is a legal ruling, subject to de novo review by this Court, and this Court will canvas the record for proof3 that the nonresident party had sufficient contacts with the state to assure that traditional notions of fair play and substantial justice will not be offended if this state exercises in personam jurisdiction. Conoco, Inc., 2004 OK 83, ¶¶9 & 20.
¶11 In Personam Jurisdiction Requires Sufficient Minimum Contacts with the State of Oklahoma so that the Exercise of Jurisdiction Does not Offend Traditional Notions of Fair Play and Substantial Justice.
¶12 In personam jurisdiction is the power to deal with the person of the defendant and render a binding judgment against that defendant. Conoco, Inc. v. Agrico Chemical Co., 2004 OK 83, ¶16, 115 P.3d 829; Gilbert v. Security Finance Corp. of Oklahoma, Inc., 2006 OK 58, ¶16, 152 P.3d 165; Hobbs v. German-American, 1904 OK 60, ¶5, 78 P. 356. In personam jurisdiction may be acquired either by service of process or by voluntary appearance before the court. Conoco, Inc., 2004 OK 83, ¶16. Title 12 O.S. Supp. 2012 §2004(F), known as the long-arm statute, allows jurisdiction over non-residents in Oklahoma court's by providing for service of process outside of the state. Mastercraft Floor Covering, Inc. v. Charlotte Flooring, Inc., 2013 OK 87, ¶10, 313 P.3d 911; Conoco, Inc., 2004 OK 83, ¶16. Title 12 O.S. Supp. 2012 §2004(F) provides: "[a] court of this state may exercise jurisdiction on any basis consistent with the Constitution of this state and the Constitution of the United States."
¶13 This Court has previously stated that the intent of the long-arm statute is to extend the jurisdiction of Oklahoma courts over non-residents to the outer limits permitted by the Oklahoma Constitution and the due process clause of the United States Constitution. Mastercraft Floor Covering, Inc., 2013 OK 87, ¶10; Conoco, Inc., 2004 OK 83, ¶17; Fields v. Volkswagon of America Inc., 1976 OK 106, ¶6, 555 P.2d 48. The outer limits of what constitutes due process in regard to in personam jurisdiction have been set and described in some detail by the Supreme Court of the United States. Conoco, Inc., 2004 OK 83, ¶17.
¶14 In the seminal case of International Shoe Co. v. State of Washington, Office of Unemployment Compensation and Placement et al., 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), the Supreme Court of the United States created what is colloquially deemed the minimum contacts test when it determined:
due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice."
326 U.S. at 316, 66 S.Ct at 158 (quoting Millikin v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940)).
Whether sufficient minimum contacts exist, and due process is satisfied, depends upon the "quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to ensure." International Shoe Co., 326 U.S. at 319. Requiring sufficient minimum contacts protects a person's liberty interest in not being subjected to a binding judgment in a forum where the person has no meaningful contacts, ties, or relations. Burger King Corporation v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 2181, 85 L.Ed.2d 528; Conoco, Inc., 2004 OK 83, ¶18.
¶15 Applying federal jurisprudence, this Court has held that when a non-resident deliberately engages in significant activities in a forum state or creates continuing obligations between the non-resident and the residents of the forum, the non-resident submits to the jurisdiction of the state. Mastercraft Floor Covering, Inc., 2013 OK 87, ¶12; Hough v. Leonard, 1993 OK 112, ¶7, 867 P.2d 438. Jurisdiction under the long-arm statute is predicated on foreign state activity that results in forum state harm. Mastercraft Floor Covering, Inc., 2013 OK 87, ¶12; Hough, 1993 OK 112, ¶7. A non-resident who has purposefully directed activities at forum residents must present a compelling case that jurisdiction would be unreasonable or that the exercise of in personam jurisdiction would offend the traditional notions of substantial justice and fair play. Mastercraft Floor Covering, Inc., 2013 OK 87, ¶12; Hough, 1993 OK 112, ¶7.
¶16 When a non-resident corporation exercises the privilege of conducting activities in a state, it also enjoys the benefits and protections of the laws of that state and any obligations connected with that activity may be enforced in that state's courts. Mastercraft Floor Covering, Inc., 2013 OK 87, ¶13; Conoco, Inc., 2004 OK 83, ¶19; International Shoe Co., 326 U.S. at 319. The focus is on whether there is 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. Mastercraft Floor Covering, Inc., 2013 OK 87, ¶13; Conoco, Inc., 2004 OK 83, ¶19; Hanson v. Denckla¸ 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958). Due process requires that the non-resident defendant's conduct and connection with the forum state are such that the nonresident could have reasonably anticipated being haled into court in that state. Mastercraft Floor Covering, Inc., 2013 OK 87, ¶13; Conoco, Inc., 2004 OK 83, ¶19; World-Wide Volkswagon Corporation v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). A single act can support jurisdiction so long as it creates a substantial connection with the forum state. Mastercraft Floor Covering, Inc., 2013 OK 87, ¶13; Conoco, Inc., 2004 OK 83, ¶19; McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 201, 2 L.Ed.2d 223 (1957).
¶17 Sufficient Minimum Contacts Exist between Defendants and the State of Oklahoma for the Exercise of In Personam Jurisdiction to be Proper.
¶18 The question of in personam jurisdiction arising from a transaction on eBay is one of first impression for this Court. Defendants focus on the eBay listing and assert that merely placing an item on sale through eBay in all fifty states is insufficient to establish minimum contacts with the state of the winning bidder:
[t]he question to be answered is, "Does placing an item for sale on eBay to all 50 states subject the seller to the laws of the state of the winning bidder at auction?"
Defendants' Motion to Dismiss for Lack of Personal Jurisdiction, p. 4.
The Defendants cite several cases from other jurisdictions in support of this proposition.4 In one of those cases, Boschetto v. Hansing, 539 F.3d 1011 (9th Cir. 2008), the Court of Appeals for the Ninth Circuit held that a 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.
¶19 However, this Court agrees with another determination made by the Court of Appeals for the Ninth Circuit in Boschetto, that "[a]t the 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 foreign state only because that is where the purchaser happened to reside, but otherwise created no 'substantial connection' or ongoing obligations there." 539 F.3d at 1019. The question presented here is not whether a single eBay transaction, in and of itself, provides the minimum contacts necessary for the exercise of in personam jurisdiction to be proper,5 but rather whether the totality of contacts makes an exercise of jurisdiction proper. Mastercraft Floor Covering, Inc., 2013 OK 87, ¶18.
¶20 Boschetto is distinguishable from the facts of this case, a distinction that the Court of Appeals for the Ninth Circuit was well aware of when it issued its ruling. The court stated:
[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., Crummey v. Morgan, 965 So.2d 497, 500 (Ct.App.La.2007) (evidence of two prior sales to Louisiana residents in prior year); Dedvukaj v. Maloney, 447 F.Supp.2d 813, 822-23 (E.D.Mich.2006) ("Although the Court's research has not disclosed any personal jurisdiction 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.").
Boschetto, 539 F.3d at 1019.
Finally, the court concluded that:
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.
From the record, what we have here is not a single, isolated transaction on eBay made by a random seller. Defendants are involved in the commercial enterprise of selling cars. Guffey alleges that Defendants use eBay as a central and regular aspect of their business, allowing them reach out to and sell to potential buyers in numerous states, including Oklahoma. Defendants do not dispute this fact, and instead assert that their use of eBay as the medium for the transactions prevents the establishment of minimum contacts with any state where a purchaser resides, simply because Defendants do not choose the buyer or the state where the buyer is located.
¶21 We do not find that argument persuasive. The question is whether sufficient minimum contacts are present such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe Co., 326 U.S. at 316, 66 S.Ct at 158. The Defendants' use of eBay to make multiple sales is systemic and appears to be a core part of their business. Guffey's affidavit alleges this is not the first sale they have made in Oklahoma by those means. In this cause, the auction itself was not the only contact between Defendants and Guffey, in Oklahoma, as part of the underlying transaction. Defendants argue that an exercise of jurisdiction would be unfair because they had no control over the winner of the auction, and yet they reached out to Guffey prior to the completion of bidding in an attempt to negotiate a sale outside of eBay's bidding process. Guffey interacted directly with Ostonakulov, and communications were also exchanged between the Defendants and her father's office. Further, the vehicle at issue was the subject of a thirty-day limited warranty that created a continuing obligation between Defendants and a resident of this state, after the vehicle was shipped to Guffey here in Oklahoma.6
¶22 Unlike the situation in Boschetto, this was not a single, isolated transaction that involved the unilateral activity of Guffey. Mastercraft Floor Covering, Inc., 2013 OK 87, ¶16. This Court will not focus merely on the eBay listing or sale itself, but rather, the totality of contacts between the non-resident defendants and Oklahoma. Mastercraft Floor Covering, Inc., 2013 OK 87, ¶18; Gregory v. Grove, 1976 OK 5, ¶6, 547 P.2d 381. ("Totality of contacts between the parties in Oklahoma are to be considered in determining the sufficiency to exercise jurisdiction under long-arm service.").
¶23 Cases in other jurisdictions cited by Defendants, in the same vein as Boschetto, are factually distinguishable for similar reasons. In Winfield Collection, Ltd. v. McCauley, 105 F. Supp.2d 746 (E.D. Mich. 2000), the court determined two sales to a Michigan resident through eBay were insufficient to establish Michigan jurisdiction over a nonresident defendant. The court also held, however, that:
Plaintiff identifies no continuing relationship between Defendant and anyone or anything in Michigan, save the craft pattern purchases made from Plaintiff itself. The only contact that McCauley is proven to have had with the State of Michigan is fortuitous and de minimus: the results of two auction sales underpinning the instant dispute, and over which Defendant had little, if any, control.
Winfield Collection, Ltd., 105 F. Supp.2d at 751.
Here, Guffey alleges both greater contact than the fortuitous winning of an isolated eBay auction, and further alleges multiple other Oklahoma sales and ongoing obligations in Oklahoma by the Defendants in the form of a warranty. Cf. Malone v. Berry, 881 N.E.2d 283, ¶14 (Ohio Ct. App. 2007) ("We further note there are no facts indicating that the activity at issue involved more than a single transaction."); Machulsky v. Hall, 210 F. Supp.2d 531 (D.N.J. 2002) (Plaintiff failed to show Defendants engaged in more than single internet transactions with forum state.) Metcalf v. Lawson, 148 N.H. 35, 40; 802 A.2d 1221, 1227 (N.H. 2002) ("what appears to be the isolated nature of this transaction and the absence of any evidence that the defendant was a commercial seller militate against a finding of jurisdiction.")
¶24 By way of contrast, in situations similar to this, where the defendants were commercial sellers engaged in systematic sales through eBay, at least one other federal court has found the exercise of jurisdiction to be appropriate. In Dedvukaj v. Maloney, 447 F.Supp.2d 813 (E.D. Mich. 2006), the court determined that an exercise of in personam jurisdiction over the defendant eBay sellers was proper, rejecting their argument that "so long as an auction is not expressly targeted at a particular forum state, jurisdiction will only be proper in the seller's home state." Dedvukaj, 447 F.Supp.2d at 820. Concerning the nature of eBay transactions, the court explained:
Internet forums such as eBay expand the seller's market literally to the world and sellers know that, and avail themselves of the benefits of this greatly expanded marketplace. It should, in the context of these commercial relationships, be no great surprise to sellers--and certainly no unfair burden to them--if, when a commercial transaction formed over and through the internet does not meet a buyer's expectations, they might be called upon to respond in a legal forum in the buyer's home state. Sellers cannot expect to avail themselves of the benefits of the internet-created world market that they purposefully exploit and profit from without accepting the concomitant legal responsibilities that such an expanded market may bring with it.
Dedvukaj, 447 F.Supp.2d at 820.7
CONCLUSION
¶25 The Supreme Court of the United States has warned against permitting the march of technological progress to destroy traditional notions of personal jurisdiction.8 However, the Court has largely left it to lower federal and state courts to work out how to strike the proper balance in an increasingly connected age. The use of a third-party auction site such as eBay as a vehicle for sales cannot serve as a shield and absolute bar to the exercise of in personam jurisdiction by this state, merely because the seller does not choose the buyer or the buyer's state, when otherwise sufficient minimum contacts exist so that the exercise of jurisdiction is reasonable and does not offend traditional notions of fair play and substantial justice. Mastercraft Floor Covering, Inc., 2013 OK 87, ¶12; Hough, 1993 OK 112, ¶7.
¶26 Defendants are involved in the commercial sale of vehicles to numerous states, and eBay is a primary means through which they conduct these sales. Defendants negotiated with Guffey directly over the vehicle eventually sold to her in Oklahoma, warrantied that vehicle while it was to be titled and driven in Oklahoma, and have allegedly engaged in more than one such transaction in this state. The totality of Defendants' contacts with Oklahoma constitute more than sufficient minimum contacts for the exercise of in personam jurisdiction to be reasonable and comport with traditional notions of fair play and substantial justice.
JUDGMENT OF THE TRIAL COURT IS REVERSED; CAUSE
REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION
