SOMETHING MORE

So far, when it comes to asserting jurisdiction over nonresident defendants who own or use a website to communicate with Alabama plaintiffs, Alabama courts just haven't found that certain "something more" that they're looking for. By "something more", I'm referring to the language used by the Alabama Supreme Court in the case of Ex parte Troncalli Chrysler Plymouth Dodge, Inc., 876 So. 2d 459 (Ala. 2003), when the court wrote that "something more than an isolated contact initiated by an in-state plaintiff is required to satisfy the purposeful-availment prong of the due process analysis. 'Something more' might involve 'prior negotiations and contemplated future consequences, along with the parties' actual course of dealing".

In Ex parte Troncalli, a Georgia car dealer was trying to keep from coming to court in Alabama to defend against claims that it provided a used truck instead of a new one for sale to an Alabama resident. The truck was located through the use of a computer database locator that allows all Chrysler dealers, including the one in Alabama, to know the Georgia dealer's inventory for the purposes of making a sale to their customers. Not surprisingly, the guy stuck with the truck that had been wrecked before he bought it believing it was new, contended that the use of this database was an act made by the Georgia dealer purposefully directed to Alabama entities. The Alabama Supreme Court disagreed, writing that "this database is 'little more than an electronic billboard for the posting of information'. The Court said that any contacts that resulted from the use of this database were not much different than those that result from an advertisement in a national publication. So, "the use of the database does not constitute the 'something more' that is required to satisfy the 'purposeful-availment' prong of a proper due-process analysis".

Fast forward to this summer and you will find a more detailed analysis of whether communication through a nonresident defendant's website can be used to hail a Georgia defendant into court in Alabama, this time by a district court in the Middle District of Alabama. In Thomas v. Mitsubishi Motor North America, Inc., 436 F. Supp. 2d 1250 (M.D. Ala. 2006), a Georgia citizen bought a car from a Georgia dealer in Georgia. Two days later, the owner was dead from a car wreck that happened in Lowndes County, Alabama. Her estate's administrator wanted to bring the lawsuit in Lowndes County and the Georgia car dealer along with it, but despite the creative efforts of plaintiff's counsel, it was not to be.

Several weeks after the fatal car wreck, the plaintiff's attorney got onto the defendant's website and communicated with the dealership through that website. The result was e-mail correspondence in which plaintiff's counsel inquired about purchasing a specific vehicle and the Georgia dealership responded that the dealership regularly ships cars out to other states. Counsel argued that the e-mail provided the basis for in personam jurisdiction as it showed that the Georgia defendant ships cars to many different states. Counsel also argued that it could be inferred from the e-mail that the dealership had sold vehicles to Alabama citizens in the past.

The district court didn't buy the arguments. Since the email and website evidence didn't involve the purchase of the car between the dead owner and the dealership, the e-mail correspondence couldn't constitute minimum contacts for the purposes of specific jurisdiction. Plaintiff's counsel argued cases outside of the Eleventh Circuit that analyzed website activity as a contact with the forum state. Again, the court didn't accept the argument because there was no evidence that the website played any role in the purchase of the vehicle. There was no evidence that the owner ever used or was even aware of the website. So, the court concluded that the website was not a contact with the forum state related to the cause of action.

The court also considered but dismissed the contention that general personal jurisdiction existed over the Georgia car dealership. The court wrote that "[a]lthough the plaintiff presented evidence about the website maintained by [the dealership], the plaintiff does not provide any evidence as to the quantity of any contacts made through [the dealership 's] website by Alabama citizens. The court was willing to consider the website activity as one factor in the general personal jurisdiction analysis but found more persuasive evidence that the dealership did not have any offices, employees or agents located in Alabama, owns no property in the state, sold no cars in Alabama, and did not advertise in Alabama.

If you are attempting to use website or internet activity to establish jurisdiction of a nonresident defendant in one of your cases, there is one more Alabama case that is must reading. That case is Butler v. Beer Across America, 83 F. Supp. 2d 1261 (N. D. Ala. 2000), and it is discussed extensively in the Thomas case. Once again, a district court failed to find jurisdiction existed but the case is important for the way in which it analyses website activity.

The Butler case arose from the sale of beer to the plaintiff's minor son by an Illinois defendant, Beer Across America via the Internet. Beer Across America owned no property in the state and maintained no offices in the state. They did not place advertisement with Alabama media outlets. There was only the single sale; Beer Across America had no continuing relationship with plaintiff's son. What made this case different from past cases for the court was the fact that there was no personal interaction between the parties but that the boy's order was placed over the distributor's website.

The court adopted the analysis found in the widely applied case of Zippo Mfg. Co v. Zippo Dot Com, Inc., 952 F. Supp 1119 (W.D. Pa. 1997). The Zippo analysis turns on the nature of the website and how interactive it is. Thus, "jurisdiction is proper when the defendant clearly does business over the Internet by entering into contracts with residents of other states which involve the knowing and repeated transmission of computer files over the Internet". At the other end of the spectrum, jurisdiction is not proper "when the nonresident defendant has established a passive Internet site, which acts as little more than an electronic billboard for the posting of information". In the middle lies an area "where a defendant has a website that allows a user to exchange information with a host computer; there, the determination turns on the nature of the information transmitted and on the degree of interaction". When the district court applied these principles, it found that Beer Across America's site did not anticipate the regular exchange of information across the Internet, much less provide for such interaction. The court concluded that the limited degree of interactivity available on the defendant's website was not sufficient to satisfy the minimum contacts requirement of due process.

Thus, there is Alabama authority to suggest that a defendant's creation of an interactive website will support the assertion of personal jurisdiction. But no Alabama court has yet found that a defendant has purposefully availed itself of the privilege of acting in Alabama through its internet website, so that the exercise of personal jurisdiction over the defendant is consistent with due process.