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Assertions of jurisdiction over the person of the defendant by courts of the United States must comport with due process in order to be enforceable either by the court rendering the judgment or by other state or federal courts.(1) Since 1945, the constitutional(2) jurisdictional inquiry has focused on the contacts between the defendant, the forum, and the litigation.(3) The defendant must have such "minimum contacts" with the forum that the assertion of jurisdiction by it does not offend "traditional notions of fair play and substantial justice."(4) Whether the contacts are sufficient to satisfy the constitutional standard depends upon the "quality and nature" of the defendant's acts in the forum "in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure."(5) This formula focuses on two inquiries: the degree to which the defendant acted in the state and the relationship between those acts and the claim brought against her. It is always necessary that there be an 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."(6) Such an act may be a single occurrence, such as driving a car through the territory of the state; it may be the continuous presence of the defendant in the state as a citizen or domiciliary; it may be (and frequently is) something in between. But any time a defendant is by choice physically present in a state, she has benefitted from its legal protections; Hanson is satisfied, a prerequisite of the assertion of jurisdiction though not sufficient to sustain it. It remains necessary to consider whether the claim brought against the defendant "arose out of" the defendant's activities in the state, was completely unrelated to those activities, or was in some way related to them even though the in-state activity is not an element of the plaintiff's prima facie case.

The consideration of these two variables led the Shoe Court to describe four paradigm fact patterns: 1) the activity of the defendant in the state is "continuous and systematic" and gives rise to the claim (for example, as in Shoe itself, a corporation has employees acting in the state and is sued for failure to contribute to an unemployment compensation fund), in which case jurisdiction is properly asserted; 2) the activity of the defendant in the state is "continuous and systematic" but is unrelated to the claim (for example, a citizen of Illinois is involved in a car accident with a citizen of Ohio in Alaska and suit is brought against him in Illinois), in which case whether jurisdiction is proper depends upon the nature and substantiality of the contacts with the state(7); 3) the activity of the defendant in the state is single and isolated, but the claim arises directly out of that activity (for example, the defendant drives once through Illinois but, while driving there, is involved in a car accident and is sued for negligent driving in Illinois), in which case jurisdiction depends upon the "nature and quality" of the acts and the "circumstances of their commission;"(8) and 4) the activity of the defendant in the state is single and isolated and unrelated to the claim (for example, the defendant drove through Illinois once and is being sued there for breach of a contract entered into and to be performed elsewhere), in which case an assertion of jurisdiction would violate due process.

Although this jurisdictional approach has remained constant, the Court has quietly changed the precise word formula it uses to describe the requirements of due process. "Minimum contacts" is now equated with the Hanson requirement that the defendant act purposefully to connect herself to the forum state; Shoe's concern with the "fair and orderly administration of the laws" is now said to require that the assertion of jurisdiction be "reasonable."(9) But the two variables remain the same and are at the heart of inquiry.

Shoe seemed clear on two points: if a defendant acted continuously and systematically in a state and the claim against her arose out of those activities, jurisdiction was proper; if a defendant was only present casually in the state and the claim was unrelated to his presence, jurisdiction was not proper. Prior to Shoe, of course, jurisdiction was in no way dependent upon the relationship between the defendant's activities and the claim.(10) The Court's first comment on the relationship between the two lines of authority seemed a straight-forward reaffirmation of Shoe:

"... all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny."(11) The statement was made in the context of a case involving the assertion of jurisdiction by Delaware over defendants who owned stock in a Delaware corporation which, pursuant to Delaware law, was "found" in Delaware even if the physical certificates were elsewhere. Under pre-Shoe law, jurisdiction would have been proper over the property itself, which had been seized at the commencement of the law suit. However, utilizing a minimum contacts analysis, the Court held that jurisdiction was not available because the claim arose out of state. The apparent implication of the holding was that jurisdiction based on the service of process on a defendant while she was physically present in the state would now also fail; in Shoe terms, there was a single contact unrelated to the claim. Nothing, however, is as easy as it looks.

In 1990, a unanimous Court held that jurisdiction was proper when a nonresident of California was personally served with process there, although why that was so fractured the Court.(12) Writing for himself and three others, Justice Scalia held that Shoe was meant to expand, not contract, the availability of jurisdiction and was directed to the propriety of jurisdictional assertions over nonpresent defendants. In his view, the acceptance of personal service in the forum as a basis of jurisdiction at the time of the adoption of the Fourteenth Amendment and its continuing acceptance today made it obvious that assertion of such jurisdiction comported with the "traditional notions of fair play and substantial justice" at the heart of the Shoe opinion. Furthermore, writing for himself and two others, Justice Scalia distinguished Shaffer by dividing the world of potential defendants into those physically served with process in the forum, for whom a minimum contacts analysis is unnecessary, and those not so served, for whom minimum contacts are required. He nonetheless did acknowledge that the Court's approach in Shaffer differed from his; he engaged in no independent evaluation of the fairness of the assertion of jurisdiction, stating that "its validation is its pedigree."(13) Of course, his approach might well have resulted in a different result in Shaffer, at least to the extent that that opinion spoke to the validity of jurisdiction based on the seizure of all kinds of property. While no then-accepted national tradition supported Delaware's status as the situs of intangible corporate ownership rights (all other states referred to the location of the stock certificate or its owner), prior to the Court's opinion the same tradition that justified jurisdiction in Burnham would clearly have justified jurisdiction based on the seizure of real property. Indeed, Justices Powell and Stevens concurred in Shaffer for precisely that reason; they were unwilling to hold that the attachment of real estate could not confer jurisdiction.

Four justices in Burnham disagreed with Justice Scalia that a minimum contacts analysis was unnecessary but found that such contacts did exist. Justice Brennan, with whom Justices Marshall, Blackmun and O'Connor joined, argued that by being present in California the defendant did avail himself of the benefits and protections of the state's law, that the burden of returning to the state to defend the suit was slight, and that the defendant could clearly anticipate the assertion of jurisdiction. However, as Justice Scalia pointed out, the first two prongs of the argument would hold true whether or not the defendant had been personally served while in California, and the third is simply another way of stating Scalia's own reliance on tradition: the defendant is aware that he may be subject to California's jurisdiction IF he is served there because that has always been the law.

Justice Stevens said "... this is, indeed, a very easy case."(14)

Whether logically convincing or not, the Court currently accepts jurisdiction based on physical service of process on a defendant in the forum state but does not assume that jurisdiction based on the seizure of the defendant's property in the state satisfies the requirements of due process. In any situation involving a defendant NOT served in the state, Shoe must be satisfied.(15)

Both Shoe and Hanson assumed that a defendant had at some time been physically present in the forum state. The difficulty both cases were attempting to overcome was the traditionally perceived lack of authority to insist a defendant not "caught" within the state return to it to defend a lawsuit arising out of her past presence. A classic car accident case provides the perfect example; indeed, Shoe is frequently praised as an honest statement of jurisdictional concerns previously hidden by rhetoric forced into the Pennoyer framework.(16) However, it may be that a defendant who has never set foot into the forum has nonetheless caused compensable injury to a plaintiff there; in three different situations, the Court has found that jurisdiction is constitutionally permissible, even thought the defendant did not literally "purposefully avail itself of the privilege of conducting activities in the state." Acts outside the state, the Court reasoned, did invoke the benefits and protections of state law, thus satisfying the Hanson requirement and permitting the assertion of jurisdiction if such an assertion would otherwise be reasonable.

The most common scenario in which a defendant never physically present in the forum may nonetheless constitutionally be subject to jurisdiction there involves a doctrine known as the "stream of commerce." Initially formulated by the Illinois Supreme Court in Gray v. American Radiator & Standard Sanitary Corp.,(17) the doctrine permits jurisdiction to be asserted over a component parts manufacturer when a good containing its part is purchased in the forum by a consumer who is later injured there by an alleged malfunction of the part. The Court reasoned that without the sale to the Illinois consumer of the completed product, the parts manufacturer would have had no market for its part; therefore, the laws of Illinois that protect and facilitate commerce within the state benefit and protect the defendant, whose true, although indirect, source of economic benefit is Illinois. The United States Supreme Court appeared to accept the Gray logic in World-wide Volkswagen Corp. v. Woodson,(18) although it held that the doctrine would not sustain jurisdiction on the fact pattern there before it. In World-wide, the objecting defendants were a New York car retail dealer and its regional distributor. The plaintiffs had purchased a car in New York and, when injured in an accident in Oklahoma, attempted to sue the defendants, as well as the car manufacturer and importer, in Oklahoma. The Court held that whatever "stream of commerce" the car had entered, it left that stream at the point of its purchase, i.e. in New York. The later unilateral decision of the purchasers to remove the car from New York could not provide a basis of jurisdiction over the retailer and distributor, who had had no voice in the decision and procured no benefit from it.(19)

More recently, at least some members of the Court have expressed concern at the breadth of jurisdiction made possible by the doctrine. In Asahi Metal Industry Co. v. Superior Court,(20) the Court was unanimous in its opinion that the assertion of jurisdiction by a California court over a Japanese company being sued as a third party by a Taiwanese component parts manufacturer seeking contract indemnification would be unreasonable and, therefore, unconstitutional. The Court split, however, on the question of whether the Japanese defendant's use of the stream of commerce was sufficient to constitute "purposeful availing" and thus provide the requisite "minimum contacts." Writing for herself and three others, Justice O'Connor argued that it was not. The defendant manufactured tube valve assemblies, which it sold to the Taiwanese company that manufactured the tube used in a tire sold to Honda which burst while the plaintiff was riding a Honda motorcycle in California. The plaintiff's suit had settled, leaving only the claim between the two foreign companies. Accepting that the Japanese defendant was aware that its product might well be used in a motorcycle purchased in California, Justice O'Connor found that "mere awareness" was insufficient to satisfy Hanson; it was necessary that the defendant in some fashion purposefully direct its action toward the forum state.(21) Her examples included designing a product for a market, advertising, establishing channels for advice to customers in the forum, or using a distributor as a sales agent in the state.(22) Intuitively, it would seem unlikely that many parts manufacturers would engage in such conduct, however. Four of the remaining justices thought that the "regular and anticipated flow of products from manufacture to distribution to retail sale" in a forum was sufficient to satisfy Hanson,(23) while Justice Stevens thought the inquiry depended upon "the volume, the value, and the hazardous character of the components."(24)

Given recent changes in the composition of the Court, it is hard to predict whether the kind of directed activity thought necessary by Justice O'Connor will be required by a majority. However, her argument leaves open another question: if a manufacturer does direct its activity toward a particular forum, is that conduct alone sufficient to constitute "minimum contacts," even if the manufacturer does not utilize a stream of commerce. Advertising is the obvious example; a seller may advertise in a market in which its products are not sold, intending to reap economic benefit from consumers in that market when they purchase the product at the seller's home. On the one hand, the seller has targeting the advertising forum, connecting itself to that forum in a way that is at least marginally related to any claim caused by the purchase of the advertised product. On the other hand, the liability of the seller for defects in its product is in no way dependent upon the advertising, as would be a claim, for example, for false advertising. In addition, no economic benefit, direct or indirect, accrues to the seller in the forum where the advertising occurred; the benefit accrues when the product is purchased at the seller's home.

A second situation in which a defendant never physically present in the forum may nonetheless be subject to jurisdiction there arises when the defendant intends to and does cause damage in the forum. The classic international law example involves a defendant standing in the United States shooting an individual standing a few feet away in Canada. The Court's acceptance of the constitutionality of jurisdiction in this fact pattern is exemplified in Calder v. Jones.(25) The plaintiff alleged that two individual defendants, a newspaper editor and reporter, as well as the newspaper itself, had libeled her. Jurisdiction over the paper was not challenged; it sold copies of the paper in California, the forum state.(26) The individual defendants, however, had never been in California in any jurisdictionally significant way. Nonetheless, jurisdiction over them was constitutionally asserted. The Court focused on two sets of facts: first, everything relevant to the claim other than the actual writing and editing of the story focused on California. The plaintiff and her career were there; the alleged acts took place there; the sources were there. Second, every aspect of the defendants' activities was intentional (rather than negligent): writing is an intentional act, libel is an intentional tort, and the causation of damage in California was intentional (given that the defendants knew the location of the plaintiff and her business).

It is certainly possible to imagine a situation analogous to but distinct from Calder. To return to the international law example, if a defendant in the U.S. aims at a man in the U.S. but, because of her bad aim, hits a man in Canada, is jurisdiction in Canada proper? What if the woman in the U.S. aims at a squirrel in Canada but hits a man there? In none of these instances, as compared to the stream of commerce fact patterns, is there any economic benefit to be traced to the defendant; what matters is the defendant's intent. But the intent to do what? To shoot a specific individual? In that case, jurisdiction in neither hypothetical would be appropriate. It is helpful, however, to return to basics: jurisdiction is about contacts between the defendant and the forum and, more specifically, between contacts between the defendant and the forum that the defendant has chosen. In other words, if a defendant never wishes to have any connection with Illinois, it ought to be possible for him to structure his life and his business to avoid such contacts and, therefore, to never be subject to jurisdiction in an Illinois court. The defendant in the first hypothetical did not intend in any way to connect herself to Canada. But the defendant in the second hypothetical did. True, she did not intend the contact that occurred. But she did intend a Canadian contact. She is in a position similar to that of a defendant who, while driving through a state, is involved in an accident and sued there for negligence. The contact (driving/shooting) is intentional, although the results arise from negligence, not intent.

Finally, the third situation in which a defendant never physically present in the forum may still be subject to jurisdiction there is that reflected by Burger King Corp. v. Rudzewicz.(27) Other Supreme Court adjudicatory jurisdiction cases had involved claims of tortious injury; Burger King was at least the modern Court's first attempt to resolve jurisdictional issues in the context of a claim for breach of contract. The defendant franchisee, a Michigan businessman, had allegedly breached his contract with Burger King, a Florida corporation. While the defendant had not been present in Florida in any way the Court considered jurisdictionally significant, and although he argued strongly that his contacts had been with the Michigan district office, the Court found that he had intentionally affiliated himself with a Florida entity in a way that satisfied Hanson's requirement. Determinative was a combination of factors: the defendant was seen as a sophisticated businessman who had not only solicited the franchise arrangement but had actively negotiated its terms with Burger King's Miami headquarters; the resulting franchise agreement was of high value, long-term, and closely supervised; the contract called for the use of Florida law to determine claims arising under it; and payments were to be made to the Miami headquarters. The failure to make those payments was the basis of the plaintiff's claim.

The Burger King Court specifically rejected what it termed "any talismanic jurisdictional formula,"(28) noting that its decision did not justify an assertion of jurisdiction over any party to a contract in the other party's home state.

The fact that Burger King involved a claim for breach of contract rather than damages caused by negligence in the end seems insignificant. The requirements of Hanson must be satisfied; they may be satisfied by a non-present defendant; once they are satisfied, the propriety of an assertion of jurisdiction depends upon its reasonableness, i.e. upon the relationship between the defendant's contacts with the state and the claim brought against her.

All three situations considered thus far, like the paradigm car accident that heralded the discussion,(29) involve assertion of what is called "specific" jurisdiction. The contacts the defendant has with the forum are sufficient to permit jurisdiction to be asserted with respect to related claims but are presumptively insufficient to permit jurisdiction to be asserted with respect to claims that have no relationship to those contacts.(30) The relevant Shoe category would be "single act/related claim." "General" jurisdiction, on the other hand, describes jurisdictional assertions which are proper no matter what the claim brought against the defendant is because of the substantiality and nature of the defendant's contacts with the forum. The easiest example is that of a state asserting jurisdiction over one of its own citizens. If a citizen of Illinois is involved, for example, in a car accident in California with a citizen of Indiana, the Indiana plaintiff could institute suit in California, where the accident occurred, but for convenience might well prefer to bring suit closer to her home. Jurisdiction over the Illinois citizen in Indiana would not be proper, since the defendant has no contacts with that forum, but an assertion of jurisdiction by Illinois would be consistent with due process.(31)

Whether general jurisdiction is proper when the defendant has "continuous and systematic" contact with the state but is not a citizen of the state is a matter of debate. The Supreme Court since 1945 has decided two cases which it believed raised the issue. The first, Perkins v. Benguet Consol. Min. Co.,(32) permitted Ohio to exercise jurisdiction over a Philippine mining company that had its (sole) U.S. office in that state in a cryptic opinion that merely concluded that the assertion was "reasonable and just," although the claim did not relate to the activities in Ohio. However, at the time suit was brought the Philippines were occupied by Japan, which was at war with the United States. Therefore, if jurisdiction in Ohio was not proper, there would literally be no forum in which the plaintiff could proceed. More recently, in Helicopteros Nacionales de Colombia, S.A. v. Hall,(33) the Court found that Texas could not constitutionally as assert jurisdiction over a Colombian corporation in a claim arising out of a Peruvian helicopter crash. Although Justice Brennan dissented, the majority of the Court and the parties agreed that the claim was not relevantly related to the contacts between the defendant and Texas.(34) Those contacts included negotiating the contract pursuant to which the defendant provided the transportation service being used at the time of the crash, the purchase of the helicopter involved (as well as eighty percent of the defendant's entire fleet of helicopters) from a Texas corporation, and the training of the defendant's pilots in Texas. However, the majority held that "mere purchases, even if occurring at regular intervals"(35) were insufficient to support the assertion of general jurisdiction. The activity described in the case is quite clearly continuous and systematic, so presumably the difficult lies in its "substantiality and nature." The majority pointed out that the defendant did not have a place of business in the state, nor was it licensed to do business there. The latter point would seem of greater relevance to an argument that the defendant had previously consented to the assertion by Texas of jurisdiction; a license to do business says nothing at all about the business actually done in the state. On the other hand, the lack of any actual place of business in the state means that the defendant cannot be characterized as a "resident" of Texas.

A resident of a state, unlike one who simply has continuous dealings with others in the state, has entered into a permanent relationship with the forum. The "nature" of that relationship is distinct. It may be inferred from Helicopteros that general jurisdiction requires such permanence, as it is difficult to imagine a business relationship absent residence stronger than that which bound the defendant to Texas. However, assuming that residency or at least a permanent presence in the state(36) is necessary before general jurisdiction may be asserted, it is not clear that that is all that is necessary. New York, for instance, assumes that it is;(37) Maryland assumes it is not.(38) Arguably, Shoe supports the need for further inquiry. That case, after all, referred to not only the nature but also the substantiality of the continuous and systematic contact necessary to support jurisdiction when the claim is not related to the activity. In addition, New York's position results in nation-wide general jurisdiction with respect to large national corporations with offices in every state. There seems to be no policy justification for that result; why should a plaintiff injured in a car accident with an Allied Van Lines truck in California be able to sued Allied Van Lines in Idaho? The burden on the defendant is also a heavy one, since witnesses, evidence, applicable law etc. are all likely to be in the state where the claim arose. If the suit is brought in the defendant's state of citizenship, the practical inconveniences are thought to be outweighed by the generic convenience of being sued "at home;"(39) also, given the complexities of the law of personal jurisdiction, it seems appropriate that there be one forum in which a plaintiff can be assured that the defendant is amenable to service of process. But one such state is sufficient.

Finally, the complexities of the law of personal jurisdiction may in some instances be obviated by prior agreement between the parties. Such an agreement may simply express a party's consent to be sued in a specific forum (usually the home of the other party),(40) or it may identify the only forum in which litigation concerning the contract shall be filed.(41) In both instances, there may be difficulties with respect to the validity of the agreement under the applicable law of contract (very often these clauses are attacked as violating the doctrine preventing contracts of adhesion), but if contractually valid they govern the location of the litigation.

The Supreme Court has not, as yet, addressed the application of this well-developed jurisprudence to a case involving a defendant's use of internet technology as an alleged relevant contact between the defendant and the forum. However, an increasing number of lower courts have confronted a variety of such fact patterns; predictably, they attempt to determine the relationship between a web site and the central requirement that a defendant purposefully connect herself to the forum.

For the most part, courts are in agreement that the maintenance of a web site, even when coupled with sales into the forum, is insufficient to sustain an assertion of general jurisdiction. In light of the Court's decision in Helicopteros, this conclusion must be correct.(42)

Another relatively obvious analogy is exemplified by Blumenthal v. Drudge and America Online.(43) Although the court focused on the interactive nature of the individual defendant's web site, the plaintiff's defamation claim closely resembles that involved in Calder. The plaintiff was a White House employee whose connection with the District of Columbia paralleled that of Jones to California. The Drudge Report containing the alleged libel was circulated in the District, albeit on the internet, and given its political and gossip content was designed for an audience likely to live there. The column, while posted on the defendant's web site, also was ent to subscribers via e-mail. Had the internet not been involved, a one line cite to Calder would have explained the decision.

Many cases arise from allegations of trademark infringement by the defendant through its use of a web site name. Zippo Manufacturing Company v. Zippo Dot Com, Inc.(44) has provided the analytical framework most commonly used by lower courts. The plaintiff, which manufactured Zippo lighters, sued the California defendant, an internet news service, in the western district of Pennsylvania for violations of trademark laws. The court's critical insight was:

... the likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet. This sliding scale is consistent with well developed personal jurisdiction principles. At one end of the spectrum are situations where a defendant clearly does business over the Internet. If the defendant enters 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. At the opposite end are situations where a defendant has simply posted information on an Internet Web site which is accessible to users in foreign jurisdictions. A passive Web site that does little more than make information available to those who are interested is not grounds for the exercise of personal jurisdiction. The middle ground is occupied by interactive Web sites where a use can exchange information with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site.(45)

The failure of a passive web site to alone sustain jurisdiction been previously noted in a case Zippo cites, Bensusan Restaurant Corp. v. King, (46) in which the court acknowledged that placing a site on the internet permits access throughout the world but denied that the defendant's act was directed toward New York. The common sense justification for the decision is two-fold: first, a party who wishes to post anything on a web site cannot control or limit where the site is accessed; it is not possible to choose "local" as opposed to "worldwide" distribution. Second, the poster itself does not determine who sees the site; "pull" technology requires an active rather than passive viewer.

Similarly, Zippo's treatment of actual contractual sales utilizing internet technology follows prior case law and is not problematic. If a contract for the sale of a book subjects a non-resident seller to jurisdiction in the buyer's home forum should the book be missing the second chapter, it makes no difference whether the agreement to sell the book was entered into over the telephone or over the internet.(47)

It is, of course, the "middle ground" that most cases in which jurisdiction is litigated occupy. One example of Zippo's application is sufficient here: Millenium Enterprises, Inc. v. Millennium Music Lp.(48) This, too, was a trademark case; in agreement with other courts, the issue was framed as whether the defendant's efforts had been "purposefully directed toward forum residents."(49) In determining that the answer was "no," the court carefully identified the kind of technology involved (while characterizing it as "interactive," the technology itself permitted the actual conduct of business over the site, from which compact discs could be purchased) and the extent to which that technology had actually been used by residents of the forum. Refusing to conflate the potential for with the reality of conducting business,(50) the court found that without "something more" jurisdiction would be improper.

Courts utilizing Zippo first determine that the site at issue is not merely passive. If it is not, the search then becomes for additional acts by the defendant, either on or off the internet, which would justify a conclusion that the defendant directed his activities at or targeted the forum. As the Millenium court noted, this search is presumably propelled by Justice O'Connor's plurality opinion in Asahi. But it raises the issue noted above: is targeting per se sufficient to sustain jurisdiction absent the economic benefit that accrues when a product is sold in the forum? While if the court requires actual sales, that benefit will exist, surely there are other ways to demonstrate that a given site "targets" a forum. Content alone, for example, might be sufficient: if my web site advertises "the boots that conquered Mt. Denali," have I targeted Alaska? In any event, if targeting the forum is sufficiently purposeful to satisfy Hanson, the claim must still be related to that targeting. In the suit by an injured purchaser, courts are seemingly satisfied by the fact that, without the purchase, no injury could have occurred. Presumably, when a claim alleges that the plaintiff's trademark has been infringed, the purposeful insertion of the infringing site into the forum forms the basis of the plaintiff's suit.

The following Appendix, originally prepared by the Sale of Goods working group, discusses in further detail lower court cases, including Zippo, that have addressed the issue of personal jurisdiction in the context of the Internet.


Internet Personal Jurisdiction Cases

I. Passive Web Sites

Generally U.S. courts have not found an exercise of personal jurisdiction, whether general or specific, to be constitutionally proper if based on access within the forum to a defendant's passive web site. However, a few cases have not followed the majority position. Those minority decisions are not merely an alternate reading of the facts or an alternate application of the same rule applied in the majority opinions; the minority opinions, in holding that a state may exercise long-arm jurisdiction on the basis of a passive Web site, have articulated an entirely divergent approach and rationale. The two principal cases are Inset Systems v. Instruction Set(51) and Maritz v. Cybergold.(52)

In the Inset case, a Connecticut software firm held the copyright for Inset. A Massachusetts firm, Instruction Set, Inc (ISI) registered the domain name and began advertising its computer technology and support services at its Web site. The defendant site was entirely passive: it consisted of advertisements only (although it included a toll free telephone number), and was accessible to anyone on the Internet. Plaintiff brought an action for trademark infringement in Connecticut.

The Inset court held that Connecticut could exercise jurisdiction over the Massachusetts defendant on the basis that a passive Web site with advertisements meets the International Shoe due process test. The court reasoned that the power prong of the International Shoe test had been met based on the court's perceived distinction between national television and magazine advertising and advertising on the Internet:

. . . unlike television and radio, in which advertisements are broadcast at certain times only, or newspapers in which advertisements are often disposed of quickly, advertisements over the Internet are available to Internet users continually, at the stroke of a few keys of a computer. At this time there are at least 10,000 Internet connected computer users in the state of Connecticut.(53)

Thus, to the Inset court, the nature of Internet advertisement (without distinguishing between an advertisement posted through a third party provider and one posted on one's own Web site) leads to the conclusion that the purposeful availment/reasonable anticipation test for minimum contacts have been met. The International Shoe tests had been met, the court explained, for the following reasons.

First, the court reasoned that there were over 10,000 persons connected to the Internet in Connecticut, all of whom could have visited the defendant's Web site. Second, the court reasoned that the Internet is designed to reach persons in every state, and the defendant had chosen to advertise on the Internet. As the court put it, the defendant had directed its advertising to Connecticut and to all the states.(54) The court reasoned that, because such advertising remains available to all persons on the Internet, who include Connecticut residents, the defendant has purposefully availed itself of the benefits of Connecticut law and economics and could reasonably anticipate being haled into the forum, thus satisfying the power prong of the International Shoe test for minimum contacts.(55) The court also held that the reasonableness prong of the International Shoe test was met, primarily because the defendant was from Massachusetts, a state adjacent to the forum, Connecticut, and because Connecticut had an interest in serving as forum for its residents in suits of this type.(56)

The other case that held a passive Web site subjects a defendant to jurisdiction in any state is the Maritz case.(57) In that case, the defendant operated an Internet site in California that allowed users to sign onto a mailing list to receive advertisements. Before the defendant's site actually began to operate by taking ads and registering subscribers, the plaintiff, a Missouri corporation, filed suit claiming trademark infringement and unfair competition. The only contacts with Missouri were 300 hits by Missouri residents on the defendant Web site, 180 of which were by the plaintiff. The court held that Missouri could exercise jurisdiction consistent with the International Shoe test. That test, as applied in the Eighth Circuit, consisted of five factors: the nature and quality of the contacts; the quantity of contacts; the relation of the cause of action to the contacts; the interest of the forum in adjudicating the case; and the convenience of the parties.(58) The court applied these factors as follows. First, in assessing the quality and nature of the contacts the Maritz court used a rationale that was almost identical to that of the court in Inset. The court explained that maintenance of a Web site on the Internet is clearly of a different nature and quality than other, more traditional, means of contact with a forum. The major difference, according to the Maritz opinion, is that the Web site seeks to reach all Internet users. Therefore, without explanation or justification, the court concluded that the defendant's contacts were of such a quality and nature that they favor the exercise of personal jurisdiction over defendant. Second, the court observed that there had been 181 hits on the defendant Web site, and that the Web site "was clearly intended as a promotion."(59) Without explaining why or how, the court concluded that these were a sufficient quantity of contacts with the forum to justify the exercise of jurisdiction under the International Shoe test.(60) Third, the court reasoned that the contacts and the cause of action were related. Just as in the Inset case, the rationale by which the court justified its holding was defendant's intent to reach a global audience. The court also reasoned that that a commercial Web page, by its very nature, "solicits" business within the forum.(61)

Several cases have addressed the situation in which a Web site advertisement contained a toll-free telephone number, essentially soliciting direct contacts with the Internet user. These courts have concluded generally that the addition of a toll-free number does not constitute such an increase in contacts or activity to justify the exercise of jurisdiction.(62) These cases define the key inquiry as whether the defendant has purposefully availed itself of the benefits of forum law(63) and hold, notwithstanding a toll-free telephone number, if the Web site advertisement is general in nature and the toll-free number is also directed to a national or international audience, then the defendant has not targeted the forum or purposefully availed itself of the benefits of forum law.(64) For a Web site with advertisements to justify the exercise of jurisdiction, the Web site must also be interactive to some degree and be combined with some non-Internet activity, from which the court can find that "actual nature" (65) of the aggregate contacts satisfies the International Shoe criteria;(66) otherwise, the due process limitations on the exercise of long-arm jurisdiction would be eviscerated.(67) Generally, "something more" than Internet contacts is required for the exercise of jurisdiction, and the court will consider Internet and non-Internet contacts in applying this test (although it is not the only "something more" that courts can consider).(68) The mere existence of a telephone number with a Web site is not enough to lead to the conclusion that the defendant has purposefully directed its activities toward the forum.(69)

As an example of something more, the court in Heroes, Inc. v. Heroes Foundation held that an Internet site with advertisements plus traditional magazine advertisements justifies the exercise of jurisdiction.(70) In the Heroes case, which was a trademark infringement case, the defendant operated a Web site but also ran an advertisement in a forum newspaper intended to solicit forum residents. The court held that the combination of the continuing Web site advertisements, the targeted newspaper advertisement, and the responses in the form of donations from forum residents was sufficient to meet the minimum contacts test for the exercise of long-arm jurisdiction. That combination of factors led the court to conclude that defendant had purposefully availed itself of the benefits of forum law and should have reasonably anticipated being haled into the forum to defend.(71)

Several common features stand out in the preceding cases. First, with advertisements on a passive Web site, the advertiser cannot know who accessed the site and viewed the materials. Second, she cannot identify the geographic location or residence of the person visiting the site and viewing the materials. Third, a passive Web site is directed to the online world at large rather than a particular jurisdiction. The strongest analogy to a passive Web site thus appears to be national or international magazine advertisements. Much the same is true with this print medium: when an advertisement goes into a national magazine, all the advertiser knows is that it will reach a national or international audience.

1. Some International Shoe History Overlooked by the Courts in the Internet cases

In adopting the International Shoe tests, the Supreme Court recognized certain needs and certain changes ways of doing business and in the relative situations of buyers and sellers. The Supreme Court recognized that in the world of modern technology, the old physical presence test was inadequate, so the Court modified it. However, with the new minimum contacts test, it soon became apparent, beginning with the Hansen case, that the Supreme Court refused to hold that a plaintiff could simply sue anywhere a product or a plaintiff was located. Instead, the Supreme Court balanced the plaintiff's need for a forum against fundamental fairness to defendants. This balancing required examination of the actual contacts of the defendant with the forum and the sufficiency of the contacts to justify the conclusion that defendant had purposefully availed herself of the benefits of the forum law and economy in such manner to be sufficient to have put the defendant on notice that she might be haled into court in the forum.

In the World-Wide Volkswagen, Burger King, and Asahi cases, the Supreme Court explained that one reason for these requirements is the seller's need to operate a business in an orderly and predictable fashion.(72) Sellers have to be able to calculate their risks and to do so based upon the location, quality, and quantity of their activities relative to various jurisdictions. If a seller can be haled into court in any forum where a plaintiff is located regardless of the defendant's activity, then all predictability is lost for the seller. In addition, on more traditional grounds of fairness, if a seller could be haled into every forum where a plaintiff is located regardless of the seller's activity, the seller has no notice of the risk of litigation in many forums; such lack of notice has been thought to be unfair.

On the other hand, in the sales situation most times the buyer's need for a forum will be satisfied. Frequently, when a buyer brings a cause of action on a sales theory, the allegation is that there was an agreement amounting to a contract, or that the defendant breached a contract, or that the goods or services delivered under the contract were defective and/or a warranty was breached. But such situations do not involve a passive Web site. If they have occurred, then it is likely that there has been additional non-Internet contacts or that there have been much more elaborate interactive Internet contacts between a seller and a buyer. That situation is the subject of the sections which follow.

2. Interactive Web sites

Several early U.S. cases discussed interactive Web sites and the exercise of long-arm jurisdiction,(73) but one case, Zippo Manufacturing v. Zippo Dot Com,(74) has become the leading precedent on the exercise of jurisdiction on the basis of Internet contacts, providing a detailed analysis of the different degrees of interactivity. Zippo is discussed below.

In American Network v. Access America, a plaintiff in New York claimed that a Georgia based Internet provider infringed the plaintiff's trademark.(75) The contacts with New York were described as follows: (1) the defendant operated a Web site that contained a hyperlink to a sales page; (2) the sales page contained a service agreement or contract that the defendant would otherwise mail to the customer; (3) the defendant entered contracts with six New York subscribers for which it received $150 total per month; and (4) the defendant's had 7,500 total subscribers with total monthly revenues of $195,000. Thus, the New York related income was .08% of defendant's income. According to the court, the combination of Internet and non-Internet contacts established purposeful availment. The court also found it important that the software was mailed into New York, contracts were entered into there, and money was paid by six subscribers from New York for the services rendered by defendant. Moreover, the court stressed that the defendant's activity was commercial and the defendant advertised and delivered the exact services described in New York Although this case has been described as an Internet contacts case, it is not clear that the Internet contacts controlled the outcome, and the opinion does not describe the degree of interactivity of the sales page. Therefore, this case is more properly described as a Web site plus non traditional contacts case. But the court does show how it will consider Internet and non-Internet contacts together to answer the question of whether there has been purposeful availment.

In Hasbro v. Clue,(76) the court found that operating a Web site that is remotely interactive can be the basis for exercising personal jurisdiction. In Hasbro, the Colorado defendant operated a computer consulting firm with a Web site that allowed customers to send e-mail messages.(77) The court held that the defendant purposefully availed itself of Massachusetts law by operating an interactive Web site and by serving one customer from the forum for one year (constituting one third to one half of the defendant's income for that year). In assessing purposeful availment, the court noted that a defendant can only act purposefully to avail itself of the benefits and protections of a forum after receiving notice of the forum contact.(78) The Hasbro court held that since the defendant had e-mail notice of the forum of the plaintiff and the nevertheless sent software and software agreements into New York, the exercise of jurisdiction was proper under purposeful availment.(79)

In Gary Scott International v. Baroudi, the defendant operated a Web site advertising his product, sold items on twelve occasions to forum residents, and announced at a trade show that he intended to sell a large number of items to a major pharmacy chain doing business in the forum.(80) The court determined that sending goods into the forum in connection with the operation of an interactive or non interactive Web site is a substantial factor supporting a defendants purposeful availment.

While these three cases are instructive in explaining the significance of Web site interactivity and developing an approach to the problem of mixed Internet and non Internet contacts, and the relation between them, each decision was more an ad hoc response to a specific situation, and while the cases discussed interactivity, but they did not actually turn on interactivity. Instead, this group of cases involved Web sites with interactive potential, primarily unused, and other non-Internet contacts.

In Zippo Manufacturing v. Zippo Dot Com,(81) a Pennsylvania manufacturer of well-known cigarette lighters brought a trademark infringement action against a California Internet news service company that used the domain name The defendant's Web site displayed an advertisement and an application form that customers could fill out to subscribe to the defendant's news service, permitting a customer to submit an application, provide a credit card number or have credit approved, and receive a password for access to the defendant's news service. Through the Web site, the defendant electronically entered into subscription agreements with 3,000 forum residents. In addition, the defendant entered contracts with seven Internet providers to furnish its service to subscribers in Pennsylvania. The court held that defendant had purposefully availed itself of the benefits of Pennsylvania law and the Pennsylvania economy so that the forum could exercise jurisdiction consistent with the International Shoe criteria.

To date, Zippo is a significant case on the subject of jurisdiction involving Internet contacts. The Zippo court surveyed the existing precedents, the nature of the Internet, and the nature of the International Shoe approach in order to formulate a new, comprehensive test for cyberspace long-arm jurisdiction cases which courts have adopted in many subsequent Internet jurisdiction cases. The Zippo court explained that the International Shoe principles require application according to a "sliding scale" that measures the nature and quality of the commercial activity of the defendant on the Internet.(82) For purposes of analysis, this sliding scale can be divided into three levels: the passive Web site, the intermediate Web site and the interactive Web site.

Under the Zippo analysis, a passive Web site merely distributes information and/or advertising, such that a user may visit the site and read the information, but there is no other activity. The exercise of long-arm jurisdiction is inconsistent with due process for a Web site with only these characteristics.(83)

Unlike the passive Web site, the intermediate Web site has some degree of interactivity. In this second category, there is some exchange of information between a user and the Web site operator. Depending on the "level of interactivity and the commercial nature" of the exchange that occurs between the user and the Web site on an intermediate Web site, the exercise of jurisdiction may be consistent with the International Shoe criteria.(84) Each case involving an intermediate level Web site requires an individual factual inquiry and analysis.(85) The court applies a totality of circumstances test in connection with this intermediate category, examining and weighing the Internet and other non-Internet contacts in conducting its analysis. Of note, the Zippo court draws a distinction between the seller of goods or services and a consumer or user, finding serious problems with attempting to apply the International Shoe tests to a consumer rather than a seller.(86)

The interactive category involves the defendant who conducts business over the Internet. In this category the operator enters contracts over the Internet and/or conducts knowing and repeated transmission of computer files over the Internet.(87) In this situation, the exercise of jurisdiction is always consistent with the principles of the International Shoe line of cases on personal jurisdiction.

Applying its own test, the Zippo court found that the case clearly involved a category three interactive Web site, thus permitting the forum to exercise long-arm jurisdiction consistent with due process principles. In support of this finding, the court noted the following: first, the defendant entered contracts interactively with three thousand Pennsylvania residents; second, the defendant issued passwords to those three thousand subscribers, thus beginning performance of the contracts; and third, the defendant entered into contracts with seven Internet providers to serve customers in the forum. These contacts put the Web site into the interactive category and satisfied the principles of International Shoe. These electronic activities demonstrated that the defendant targeted or directed its activities toward the forum; thus, the defendant had purposefully availed itself of the benefits of the forum law and economy and reasonably should have anticipated being haled into the forum to defend itself. Unlike the forum contacts in World-Wide Volkswagen,(88) the contacts in Zippo were not fortuitous but were the result of the defendant's repeated and conscious choice do business with forum residents.(89) Moreover, the court rejected the proposition that the contacts were insignificant, noting that the test has always been the "nature and quality," not the quantity, of the contacts(90) and recognizing that the reasonableness prong of the International Shoe test had also been easily met.(91) The Zippo opinion is probably the most persuasive and influential opinion and the leading authority on the subject of cyberspace. Additionally, Zippo also explained the significance and theory of CompuServe v. Patterson,(92) a prior decision that caused some confusion.(93)

In that case, Patterson subscribed to CompuServe's Internet service and formed an agreement to distribute shareware over the CompuServe's network. The distribution agreement incorporated by reference the CompuServe's Service Agreement and Rule of Operation, both of which CompuServe published on its Web site, providing that the performance of the agreement occurred in Ohio and electing Ohio law to govern any dispute arising out of the agreement. During the term of the agreement, twelve subscribers from Ohio downloaded the Patterson software. Patterson claimed that CompuServe named its software in a manner that infringed his trademark. CompuServe brought a declaratory judgment action in Ohio against Patterson, a resident of Texas who had never been to Ohio and who objected to the exercise of long-arm jurisdiction by the Ohio court. The Patterson court held the exercise of jurisdiction consistent with International Shoe's principles because Patterson acted to create the connection with the forum, he was on notice that Ohio law would apply, and he engaged in repeated commercial transactions with CompuServe in Ohio.

Applying the Zippo scale, CompuServe v. Patterson was an interactive, category three Web site case because of two factors, first and most importantly, the high degree of interactivity involving the Web site transactions between CompuServe and Patterson, thus giving Patterson notice of the location and relationship with the forum,(94) and second, Patterson's knowing entrance into a contract with an Ohio resident.(95)

3. Zippo's Progeny

(a) Specific Jurisdiction

The Zippo approach has dominated subsequent decisions. In Vitullo v. Velocity Powerboats,(96) Velocity was a Florida manufacturer of powerboats who regularly sold his goods to an intermediary dealer in Michigan, who in turn sold a boat to Vitullo in Illinois. After one plaintiff was killed and other injured following a boating accident, Vitullo brought a product liability claim against Velocity in Illinois. Velocity maintained an Internet Web site which had e-mail capability, a customer information form, and the ability to notify customers of boat shows that included Velocity's products being held in the user's area. Velocity also advertised nationally in magazines and occasionally bought parts in Illinois. The Vitullo court adopted the Zippo test and found that Velocity's Web site was an intermediate category site that met the International Shoe requirements for the exercise of long-arm jurisdiction by the forum. The court examined all of the actual contacts with the forum and concluded that, taken together, those contacts established that Velocity targeted the Illinois.

The court's conclusion regarding the Web site's interactivity relied upon the following factors: first, although Velocity's Web site did not permit the formation of contracts, it permitted e-mail exchanges; second, the Web site had an explicit advertisement encouraging customers in Illinois to attend a Chicago boat show which was a major indication of targeting the forum; and third, Velocity knew that his dealer sold boats in Illinois, and this constituted placing the goods into the stream of commerce. Since merely placing the goods into the stream is not alone sufficient under Justice O'Connor's Asahi test, even if the defendant knows that the goods will arrive in the forum,(97) the court found that the advertisement encouraging customers to go to the Chicago boat show was sufficient to justify the exercise of jurisdiction.(98) Alternatively, the court reasoned that the solicitation of forum residents to attend a local boat show for a "hands on" viewing supplied the something extra to the stream of commerce foreseeability that would enable the forum to exercise long-arm jurisdiction.(99)

In Thompson v. Handa-Lopez, Inc. ("HLI")(100) the court expressly adopted the Zippo approach. In Thompson, HLI, a California corporation, operated an Internet site for gambling. Customers would enter an e-contract with HLI, purchase game tokens with a credit card, then gamble in the defendant's "Internet arcade." The e-contract which Thompson entered included an arbitration clause that provided California law would apply and reserved venue exclusively in California. Thompson, from Texas visited HLI's Web site, purchased game tokens, then gambled and won tokens worth $200,000 in winnings according to HLI's rules, but HLI refused to pay. Thompson brought an action in Texas for breach of contract, fraud, and violation of the Texas deceptive trade practices statute. The court adopted the Zippo sliding scale and found the Web site to be an interactive, category 3 site based on HLI's continuous business activities over Internet with Texas residents by exchanging information, entering contracts, and conducting gambling activities with Texas residents for commercial gain.(101) In spite of the choice of law and choice of venue provisions of the contract, the court held that the reasonableness prong of the International Shoe test was met, basing this finding on Texas' strong interest in resolving a dispute such as this to protect its citizens from fraud and deceptive practices and that "due regard must be given to Thompson's choice to seek relief in Texas."(102)

In Blumenthal v. Drudge and America Online, Inc. ("AOL"), the court held that the Communications Decency Act insulated AOL from liability as a third party provider of Internet services, but also held that the other party was liable under the category three Zippo test.(103) In Blumenthal, Blumenthal, a White House employee, sued Drudge, an on-line columnist and resident of California, and AOL, a Virginia based corporation and on-line service and content provider for defamation in the District of Columbia. Drudge wrote a magazine gossip column that he published on his Web site which contained hyperlinks; additionally, he had subscribers to whom he sent his column via e-mail. Drudge entered into a license agreement with AOL which provided that his report would be available to all AOL subscribers. After the court dismissed AOL on the basis of provisions of the Communications Decency Act, the court determined that Drudge's Web site was an interactive category 3 site because it

. . . allows browsers, including District of Columbia residents, to directly e-mail defendant Drudge, thus allowing an exchange of information between the browser's computer and Drudge's host computer. [I]n addition, browsers who access the Web site [sic] may request subscriptions to the Drudge Report, again by directly e-mailing their requests to Drudge's host computer. . . . The constant exchange of information and direct communication that District of Columbia Internet users are able to have with Drudge's host computer via his web site is the epitome of web site interactivity."(104)

The Court found the following factors sufficient to warrant the exercise of personal jurisdiction:

(1) the interactivity of the web site between the defendant Drudge and District residents; (2) the regular distribution of the Drudge Report via AOL, e-mail and the world wide web to District's residents; (3) Drudge's solicitation and receipt of contributions from District residents;(105) (4) the availability of the web site to District residents 24 hours a day; (5) defendant Drudge's interview with C-SPAN; and (6) defendant Drudge's contacts with District residents who provide gossip for the Drudge Report.

The court held that the non-Internet related contacts when coupled with his Internet related contacts and the interactive nature of his Web site "establish that defendant Drudge engaged in a persistent course of conduct in the District of Columbia."(106)

In GTE New Media Services, Inc. v. Ameritech Corp., et al. (collectively "RBOC"),(107) the D.C. federal court found a basis for personal jurisdiction though the case fell into "the 'middle ground'. The RBOC defendants' Internet contact was an interactive Web site seeking information from users which the [sic] will later use for commercial gain."(108) Specifically, the court concluded that "the non-resident RBOC defendants, which own or maintain a Web site that is both (1) highly interactive with users in the District of Columbia and (2) significantly commercial in 'quality' and 'nature,' warrant the exercise of personal jurisdiction."(109) The use of hyperlinks to the defendants' Web sites at "well known and popular Internet access points" and the high volume of advertising revenues from the Yellow Pages constituted a highly commercial activity for due process purposes under the Zippo rationale.(110)

In Park Inns International v. Pacific Plaza Hotels, the court found that Pacific Plaza maintained a Web site on which customers could make, amend, and cancel hotel reservations, and that a number of forum-resident customers had booked and stayed at the Pacific Plaza's hotels as result of reservations made over its Web site.(111) Following Zippo, the court reasoned that the Web site was interactive because business was transacted over Web site between the customers and operator of the site. The court concluded that interactive solicitation of business in the forum which results in business transactions constitutes purposeful availment.

Another recent case which adopted the Zippo approach was International Star v. Bowman Haight.(112) Bowman Haight conducted business through a Web site at which customers could purchase and pay for service. Evidence disclosed twenty-two hits from forum residents. Since Bowman Haight's Web site invited inquiries by e-mail from potential customers and the defendant actually entered into contracts and sales of its service with twenty-two forum residents over the Internet, the court found that Bowman Haight's Web site was interactive pursuant to the Zippo standard and the exercise of jurisdiction was appropriate.

Resuscitation Technologies, Inc. ("RTI") v. Continental Health Care Corp. ("CHCC") is a case in which a principle of CHCC, a Michigan corporation, visited an interactive Web site on which RTI, an Indiana corporation, advertised that it was looking for startup capital.(113) CHCC then contacted RTI via e-mail, and exchanged nearly eighty e-mails, faxes, and conference calls as a result of which the parties agreed to form an entity to finance RTI, agreed to the terms of several confidentiality agreements, and drafted a letter of intent which provided many details of the transaction, including an initial public offering of stock. Following delays, RTI brought an action in Indiana for a declaratory judgment that there was no contract between the parties, for breach of the confidentiality agreement, and for intentional interference with business relationship.

The court measured "the quality of those electronic contacts . . . with reference to the intended object of that activity."(114) This gloss on the Zippo test is important in contract cases, and the nature and actual content of the Internet related communications are crucial to the analysis. Applying these principles to the case before it, the court focused on the purpose of the e-mail communications between the parties and concluded that the purpose was to combine of financial resources of the parties and the formation of a "continuing and long-term relationship" that would have a substantial impact in Indiana.(115) Thus, the court found that contracting and transacting business over the Internet where "the commercial nature of the Internet activity . . . was focused on Indiana" justified the exercise of jurisdiction in Indiana.(116)

In Stomp, Inc. v. Neato LLC, a California court found that the defendant's use of an Internet Web site to offer and sell its products constituted a Zippo interactive business category 3 Web site, so it denied Neato's motion to dismiss for lack of personal jurisdiction.(117) The California court appears to embrace the trend to synthesize the Zippo and CompuServe into a rule with only two classifications of Web site--passive or interactive business--with jurisdiction being proper for the latter but not the former.(118) The court noted that "it is the merchants who seek to sell their goods only to consumers in a particular geographic that can control the location of resulting lawsuits."(119) The court does acknowledge two ways that the merchant can avoid such a broad submission to jurisdiction: "(1) include a disclaimer that it will not sell its products outside a certain geographic area, and (2) an interactive 'clickwrap agreement' that includes a choice of venue clause which a consumer must agree to before being allowed to purchase any products."(120)

(b) No Specific Jurisdiction

Although many cases have employed the Zippo analysis to clarify the situations in which a forum can exercise jurisdiction consistent with the International Shoe due process criteria, many cases have also used Zippo to identify situations where jurisdiction cannot be properly exercised.

The leading case is this vein is Cybersell, Inc., an Arizona corporation ("Cybersell AZ"), v. Cybersell, Inc., a Florida corporation ("Cybersell FL").(121) Cybersell AZ, a web services marketing firm that owned the registered trademark "Cybersell," sued Cybersell FL, a small company providing business consulting services for Internet marketing. Cybersell FL used a Web site that contained a hyperlink of the mark Cybersell to allow the viewer to e-mail messages to the company. Applying the Zippo test to the facts of this case, the court held that the Cybersell FL had not purposefully availed itself of the benefits of Arizona, so jurisdiction could not be exercised. The court explained that mere advertisement on a Web site is not enough; "something more" is required for the purposeful availment test to be met. In the present case there was no defendant commercial activity in forum: a passive(122) Web site posting alone does not create deliberate activity in a forum. Further, there had been no actual contacts with forum: no forum resident had signed up for Cybersell FL's web services; no e-mail messages or other Internet communications had been exchanged between Cybersell FL and any Arizona residents; and there had been no contracts, sales, phone calls, or income from Arizona or with Arizona residents. Finally, the court concluded that Cybersell FL did not target the forum by directing activity to forum or by encouraging forum residents to access the Web site; and there were no hits from the forum.

Millennium Enterprises, Inc. v. Millennium Music, LP is another significant case that follows the Zippo analysis.(123) This case is instructive because the Millennium court carefully reviews all Internet cyberspace jurisdiction precedents and concludes, after comparison of the Zippo approach to other approaches, that the Zippo approach is the most legitimate application of the International Shoe principles to the dynamics of cyberspace. Music's Web site was interactive because customers could purchase compact disks "CDs," request franchise information, or join a discount CD club on the Web site, but the only direct contact with Oregon was a single purchase of a CD by an Oregon resident from Music's Web site at the request Enterprise's lawyer. The court made several important additions or clarifications of the Zippo test in its opinion, one of which was that the court looked to the actual, rather than potential, activities Music conducted over the Internet and found the designation "doing business" to confer a true interactive Web site is "intended for those businesses which conduct a significant portion of their business through ongoing Internet relationships."(124) Thus, the court held that Music's Web site to fell "into the middle category, requiring further inquiry into the 'level of interactivity and commercial nature of the exchange of information' to determine whether jurisdiction should be exercised."(125) The court also found that:

the middle interactive category of Internet contacts as described in Zippo needs further refinement to include the fundamental requirement of personal jurisdiction: "deliberate action" within the forum state in the form of transactions between the defendant and residents of the forum or conduct of the defendant purposefully directed at residents of the forum state.(126)

The court observed that the level of potential interactivity of Music's Web site was not insubstantial, and the potential exchange of information between Music's Web site and customers would, if consummated, be commercial in nature,(127) and then concluded that under these facts the Zippo approach does not permit the exercise of jurisdiction because there had been no actual interaction between residents of Oregon and the Web site.(128)

Continuing the development began in Millenium is Origin Instruments v. Adaptive Computer Systems.(129) In this trademark infringement action, Adaptive maintained a Web site on which users could obtain product information, use a hyperlink to download a product purchase program, and communicate with Adaptive via e-mail. However, there was no evidence that there had been any hits from Texas, or that any Texas user had ever interacted with Adaptive's Web site. On these facts, the court held that, although Adaptive's Web site was interactive, it fell into the Zippo middle category. The court went on to find that since the level of interactivity was moderate and there was no evidence of forum hits or actual interactivity, the mere possibility that a defendant may be able to do business with forum residents, standing alone, could not form the basis for the exercise of forum jurisdiction. Possibility does not establish that a defendant purposefully availed itself of the benefits of the forum state and its laws. For due process requirements to be satisfied, "something more" (that is not Internet related) must have occurred which, when combined with the Web site, shows purposeful availment.

In Scherr v. Abrahams,(130) Scherr was a magazine publisher and Abrahams was a former employee of Scherr, who, after leaving plaintiff's employ, started a magazine that allegedly infringed Scherr's trademark and committed fraud and slander. Scherr maintained a Web site on which subscribers could receive an electronic copy of Scherr's magazine by transmitting their Internet e-mail address, arguably interactive under the Zippo test. The Scherr court held that the forum could not exercise jurisdiction because the level of interactivity was low and there was no targeting of the forum. However, in examining the nature of the interactivity and actual contacts, the court's application of the Zippo test is not highly persuasive. In denying the exercise of jurisdiction, the court relied on the fact that no money was exchanged between Scherr and users and the only commercial information involved were advertisements. The court was also influenced by the absence of any information on the Web site specifically targeted at forum consumers. At first blush this case is problematic. First, the contacts (the e-magazine transmissions) involved here appear to be commercial since they contain advertisements that produce revenue for Scherr based on the number of users who receive the magazine and theoretically see the ads. Second, there is substantial interactivity, though the court characterizes the interactivity as "low." Since commercial contacts with the forum and substantial interactivity generally rates a highly interactive, Zippo category three classification that almost certainly is grounds for the exercise of jurisdiction, the court's finding is troubling. However, the Scherr court, like the Millenium court, reviewed the interactivity based on real interaction rather than potential interaction and determined that neither requesting to be added to a free mailing list nor the transmission of a free magazine warrants the touchstone label of highly interactive, and recognizing that the commercial activity was between Scherr and his advertisers, rather than between Scherr and the recipients of the free magazine.(131)

It is clear that the Zippo court intended that there be a middle category, though many subsequent cases bifurcate the analysis into "passive" and "interactive" Web sites with little attention given to the "something more" that is clearly required. The Scherr court merely follows the Millenium court in attempting to pave the middle ground.

Transcraft v. Doonan Trailer(132) was a trademark infringement action by an Illinois manufacturer against a Kansas manufacturer. Transcraft follows a Zippo approach, but makes clear that in the moderately interactive, category two Zippo Web site cases, Asahi and World-Wide Volkswagen's purposeful availment rationale must be satisfied. Doonan operated an Internet Web site that contained advertisements and the ability to give the names and telephone numbers of local dealers of Doonan's products in response to a customer's e-mail request. The court concluded that the facts supported a finding that the Web site was a Zippo passive category (advertising) or middle category (interactive, but not clearly transacting business over Internet) case.(133) Where a customer can exchange information with a Web site, the test is level of interactivity and commercial nature of the Web site. Using the Hasbro stream of commerce analogy to measure Transcraft's Web site activity, the court concluded that there was no evidence that Doonan had used the Web site to encourage contact by Illinois residents. Instead, the advertisements were characterized as national ones, and there was no evidence of any Illinois contacts or hits.(134)

The final case applying Zippo and refusing the forum exercise of jurisdiction is Decker v. Circus Circus.(135) In the Decker case, Decker, a New Jersey resident, was injured at Circus Circus's hotel in Las Vegas, Nevada. Circus Circus advertised nationally over cable television and in national magazines, sent promotional letters to former guests, and operated an Internet site over which customers could make reservations. The court interpreted Zippo as holding that Internet contacts will permit the exercise of jurisdiction consistent with International Shoe in two situations: (1) where the defendant is doing business over the Internet; and (2) "where a user can exchange information with the host computer."(136) In the second circumstance, the level of interactivity and commercial nature of the exchange will determine whether the forum can exercise jurisdiction. Oddly, the court explained that preliminarily the Zippo test was met, because the ability to make reservations placed Circus Circus in the "endless stream of commerce" which (the court explained) was all that was necessary under World-Wide Volkswagen for the exercise of jurisdiction.(137)

In Mink v. AAAA Development LLC, the Fifth Circuit addressed the Internet Web site issue for the first time.(138) In evaluating AAAA's Web site pursuant to the Zippo sliding scale, the court considered that AAAA posted information about its products and services, the Web site contained AAAA's toll-free telephone number and e-mail address, though orders were not taken through the Web site, and concluded that the Web site was a passive Web site on the Zippo scale. Thus the court held that AAAA's Internet Web site did not support a Texas court's exercise of personal jurisdiction over the Vermont based defendant.(139)

4. Interactive Web Sites--General Jurisdiction(140)

Virtually no cases have held that Internet contacts can create general jurisdiction. General jurisdiction requires continuous and systematic contacts;(141) that are also substantial;(142) the test for evaluating contacts in a general jurisdiction case is rigorous.(143) Several cases have reasoned that it is virtually impossible to establish general jurisdiction solely through Internet contacts.(144)

Many cases have refused to hold that general jurisdiction exists even in apparently fully interactive/doing business situations. For example, in Millennium Enterprises v. Millennium Music,(145) which has been discussed above for purposes of specific jurisdiction, the court also considered a general jurisdiction argument. Even though the Web site was interactive, the court held that interactivity was insufficient to establish general jurisdiction. The court explained that it was unable to find any cases in which the requirements for establishing general jurisdiction had been satisfied by Internet contacts.(146) Another case explained that general jurisdiction cannot be established solely through Internet contacts because the subsequent "easy world-wide access" would "eviscerate the personal jurisdiction requirement as it currently exists."(147) Yet another case held that: (1) an interactive Web site over which a customer could fill out order forms and (2) purchase goods after a toll-free telephone call to set up an account and (3) $80,000 worth of sales in the forum were not sufficient to justify exercise of general jurisdiction.(148) The court explained that, "Notably, the threshold level of minimum contacts necessary to confer general jurisdiction is significantly higher than that required for specific jurisdiction."(149)

Only one case has held that general jurisdiction can be established, at least in part, by Internet contacts. Mieczkowski v. Masco Corp.(150) held that general jurisdiction could be exercised where the contacts were "primarily" over the Internet. In the Mieczkowski case, Mieczkowskis' son was killed by a bunk bed manufactured by Masco. The Mieczkowskis purchased the bed from private individuals in Virginia who had previously purchased the bed from Masco in Washington D.C. On the first night Mieczkowski's son used the bed, he hung himself attempting to climb down from the top bunk. The Mieczkowskis brought an action in Texas against the defendant, which had its plant in North Carolina. The contacts on which the plaintiffs relied were: $5.7 million worth of sales in Texas by defendant in the past 6 years; 250 transactions with Texas residents in 1997 which created $717,000.00 in sales; in the past 4 years Texas sales constituted 3.4% of Masco's total sales; Masco's maintenance of a Web site accessible to all persons in Texas; Masco bought .2% of its materials from a Texas supplier in El Paso; and Masco sent a direct mailing to all persons who had purchased from it in the past twice each year. On Masco's Web site customers could: (1) browse through a section which displayed pictures, construction, and prices of furniture for sale; (2) fill out an order form; (3) check the status of their orders; and (4) communicate via e-mail through the Web site with Masco's representatives. The court held that the contacts could not establish specific jurisdiction, but that a combination of non-Internet and Internet contacts was sufficient to satisfy the constitutional test for the exercise of general long-arm jurisdiction.(151) In applying the test for general jurisdiction in a case with Internet elements, the court purported to adopt and follow the approach of the Zippo case.(152) Following Zippo, the Mieczkowski court found the Web site fell into the second category of interactive Web site, where long-arm jurisdiction is sometimes proper. Accordingly, the court conducted a more detailed and careful examination of the contacts.(153) The court opined that the Web site activities of Masco went far beyond traditional notions of advertising. The court focused on the fact that the defendant "indiscriminately" responded to every inquiry about its products, and maintained a level of interactivity "greater" than in some other cases in which jurisdiction was held to exist.(154) The court stated that it found the level of interactivity to be similar to the Maritz case,(155) and would also rely on that case. However, it is important to note that the court did not rest its holding on the Internet contacts alone, a factor which the court itself explained.(156) Rather, the court held that, under the authority of the Zippo and Maritz cases, the combination of traditional, physical contacts combined with the interactive Web site was sufficient to establish general jurisdiction.(157)

Though not the case here, there is nothing inherent in the nature of the test for general jurisdiction which makes it impossible for general jurisdiction to be exercised on the basis of exclusive Internet contacts. For example, if a vendor located in an adjacent state targeted a particular state with a highly interactive Web site and pursuant to that site shipped in a very large percentage of its sales by number in the target state, and also received a large amount of its total sales from the target state, then it might be possible to find general jurisdiction and exercise jurisdiction over an unrelated cause of action (such as one that did not arise out of a contact with the Web site). It would seem that a strong argument on these facts would exist to justify the exercise of general jurisdiction.

However, does that situation meet the International Shoe requirements for general jurisdiction? In spite of the strong argument, those requirements are quite difficult to satisfy. General jurisdiction requires contacts which approach "presence," of which domicile is the best example. The contacts must be such that the defendant can be said to be present or to maintain such substantial, continuous and systematic contacts with the state that he is as a practical matter virtually present, so that it is not unfair to exercise jurisdiction over any cause of action.(158) Given this definition, it would appear that, if a nonresident defendant is merely doing business in the state, there are significant problems of interpretation about what constitutes sufficiently systematic contacts to justify general jurisdiction.(159) In the principal Supreme Court cases on general jurisdiction, the Court's explanation of the terms "continuous" and "systematic" and its description of the type of activities which would justify the exercise of long-arm jurisdiction over an unrelated cause of action were vague and led to speculation about the meaning of sufficient contacts in general jurisdiction analysis, but appeared to set a very high standard.(160)

1. Any deprivation of property by the United States, pursuant to the Fifth Amendment to the U.S. Constitution, or by a state, pursuant to the Fourteenth Amendment, must comport with due process; either the extinguishing of a claim by an unsuccessful plaintiff or the award of damages to a successful one constitutes such a deprivation. Courts of each state are required to give full faith and credit to judgments of other states (Article IV, Section 1, U.S. Constitution) only if those judgments also satisfy the constitutional requirement. Pennoyer v. Neff, 95 U.S. 714 (1877).

2. Before asserting jurisdiction, a court must be statutorily authorized to do so. Only when such authorization exists does the constitutional inquiry arise. Neither states nor the United States are required to assert the entirety of constitutionally permissible jurisdiction. Compare, for example, Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961) with Feathers v. McLucas, 15 N.Y.2d 443, 209 N.E.2d68 (1965).

3. International Shoe Co. v. Washington, 326 U.S. 310 (1945). Prior to the Shoe decision, the Court's focus had been on the power of the state rendering the judgment to enforce it. In accordance with then-current understanding of public (international) law, the Pennoyer Court had identified the situations in which such powers existed: 1) the defendant had been personally served with process while physically present in the state (the state could theoretically imprison the defendant until the litigation was resolved and, if ordered to do so, the judgment paid; in exchange for the state's willingness to permit the defendant to leave the jurisdiction, other states acknowledged the "power" of the judgment-rendering state and agreed to enforce its decisions); 2) property belonging to the defendant in the forum state was seized at the commencement of the lawsuit (thus providing a fund from which to pay the successful plaintiff); 3) the defendant was a citizen (or domiciliary or resident) of the forum (international law acknowledged the right of each state to assert jurisdiction over its own nationals even if their absence); 4) the defendant consented to the assertion of jurisdiction (thus obviating any issue of the actual power to enforce the judgment); and 5) the lawsuit involved the status of the defendant under the domestic law of the forum (for example, an absent defendant's marital status vis a vis a citizen of the forum). However, as society became more mobile and as the Court's appreciation of the full faith and credit clause grew, it became apparent that the Pennoyer Court's understanding was both unworkably narrow and unnecessary. 26 U.S. at 316.

5. Id. at 319.

6. Hanson v. Denckla, 357 U.S. 235, 253 (1958).

7. 326 U.S. at 317.

8. Id. at 318.

9. Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987).

10. See note 3, supra.

11. Shaffer v. Heitner, 433 U.S. 186, 212 (1977).

12. Burnham v. Superior Court, 495 U.S. 604 (1990).

13. Id. at 621.

14. Id. at 640.

15. The literal language of Shoe, if not its logic, supports the result; the Court there said that "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 ..." 326 U.S. at 316 (1945).

16. See, for example, Hess v. Pawloski, 274 U.S. 352 (1927), in which a state's jurisdiction over a nonresident motorist was justified because, according to a Massachusetts statute, the motorist had "consented" to the appointment of a state official as his agent for service of process when he drove into the state. Such consent, of course, is totally fictional and hardly is what the Pennoyer Court rightly thought obviated the need for state power to enforce its judgment.

17. 22 Ill.2d 432, 176 N.E.2d 761 (1961).

18. 444 U.S. 286 (1980).

19. In dissent, Justices Marshall and Brennan argued that the defendants did indeed benefit from the existence of Audi dealerships and repair facilities throughout the United States, including Oklahoma, and that such indirect benefit, like that identified in Gray, ought suffice, at least in light of the fact that cars are intended to be driven from one place to another.

20. 480 U.S. 102 (1987).

21. Id. at 103.

22. Id.

23. Id. at 117.

24. Id. at 122.

25. 465 U.S. 783 (1984).

26. No matter how slight the actual activity of the defendant in the state is, jurisdiction is constitutionally proper if the claim arises directly out of that activity, as libel arises out of the sale of the paper in the state. Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984).

27. 471 U.S. 462 (1985).

28. Id. at 485.

29. The initial post-Shoe discussion of jurisdiction based on personal service of process on the defendant while physically within the forum (and perhaps based on the seizure of real property at the commencement of the lawsuit) doesn't fit the specific/general jurisdiction framework; the contact with the state may well be anything but continuous and systematic, but the propriety of a jurisdictional assertion has nothing to do with the nature of the claim. The traditional justification for the kind of jurisdiction, of course, was the power of the forum to enforce its judgment, not the chosen contacts of the defendant with the state.

30. There is a difference between claims that are related to a defendant's contacts with the forum and those that arise from the contacts. In the latter instance, the contact is itself an element of the claim; jurisdiction is then clear. A good example is Keeton v. Hustler Magazine, Inc., a libel suit in which the defendant argued that the plaintiff's close-to-total lack of contact with the forum and its own negligible sales there ought defeat jurisdiction. The Court, however, held that the claim arose out of the sale of magazines in the state and jurisdiction was, therefore, proper. By contrast, when the defendant's contact with the forum state is via the stream of commerce, a claim for tortious injury there caused by the product is related to but does not arise out of the forum contact. Without the defendant's use of the stream of commerce, the final product would not have been purchased by the plaintiff in the state; however, it is an alleged negligent act elsewhere that allegedly makes the defendant liable to the plaintiff for damages. In this fact pattern, jurisdiction might be defeated if other factors make the forum a less "reasonable" one, for example if the injury occurred outside the state, so that witnesses and evidence were not easily available in the state in which the purchase had taken place.

31. Blackmer v. United States, 284 U.S. 421 (1932) (absent citizen of the U.S. subject to the jurisdiction of courts of the U.S.); Milliken v. Meyer, 311 U.S. 457 (1940) (absent citizen of a state subject to the exercise of personal jurisdiction by courts of the state).

32. 342 U.S. 437 (1952).

33. 466 U.S. 408 (1984).

34. Id. at 409.

35. Id. at 418. In support of its holding, the majority cited Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U.S. 516 (1923), a pre-Shoe case involving an attempted assertion of personal jurisdiction by New York over an Oklahoma retail purchaser of men's clothing. The Court specifically noted that it was not determining whether, on similar facts today, an exercise of specific jurisdiction over the defendant would be permissible; the Rosenberg holding was that the defendant was not "present" in New York by virtue of its purchases, so as to subject it to jurisdiction there under the logic of Pennoyer.

36. Ownership of real property in the state, for instance, may not be the equivalent of residency; residency is possible without ownership, and ownership need not include use of the property. However, it too provides a permanent connection to the state; arguably the jurisdictional implications of that connection are best considered here rather than as an analogy to the holding of the Court in Burnham regarding jurisdiction based on the personal service of process on a defendant present in the forum.

37. Bryant v. Finnish National Airline, 15 N.Y.2d 426, 208 N.E.2d 439 (1965).

38. Nichols v. G.D. Searle & Co., 221 F.2d 1195 (4th Cir. 1993) (assuming that employees engaged in advertising and solicitation work out of an office).

39. While courts generally assume that a corporation is a citizen of both its state of incorporation and the state of its principal place of business for purposes of general jurisdiction (these being the states of corporate citizenship for purposes of diversity jurisdiction under 28 U.S.C. s 1332), this convenience argument might logically be used to defeat jurisdiction based solely on state of incorporation. While many corporations are incorporated in Delaware, that frequently is their only contact with the state and, at least with respect to claims unconnected to Delaware law (for example, a vehicular accident in Missouri), Delaware does not seem intuitively to be a "reasonable" forum.

40. See National Equipment Rental, Ltd. v. Szukhent, 375 U.S. 311 (1964).

41. Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991).

42. See Digital Equipment v. Altavista Technology, 960 F.Supp. 456 (D.Mass. 1997). Apparently, only one case has found an assertion of general jurisdiction over a non-resident defendant to be proper based, in part, on its internet contacts with the forum. In Mieczkowski v. Masco Corp., 997 F. Supp. 782 (E.D. Texas 1998), the court asserted jurisdiction over a North Carolina manufacturer of a children's bed, although the bed which had allegedly caused the death of the plaintiff's son had been sold by the defendant to a third party in Washington, D.C., who thereafter sold it to the plaintiff in Virginia. The defendant had, however, apparently sold the same product to Texas residents and maintained a web site from which its products could be ordered. While the plaintiff's claim clearly had nothing to do with those contacts, clearly also an identical claim could have arisen from the sale of a bed to a Texas resident; the court's jurisdiction over that claim would have been unquestioned. Given that the burden of defending the plaintiff's suit was no different than the burden of defending a suit arising from the sale of a bed in Texas which the defendant had already assumed, arguably due process was not offended by the assertion of general jurisdiction. See Buckeye Boiler Co. v. Superior Court, 71 Cal.2d 893, 458 P.2d 57 (1969). In one sense, this is not "true" general jurisdiction, but a limited variety of it which is justified by the similarity between the actual claim and the specific jurisdiction which could be asserted.

43. 992 F.Supp. 44 (D.C. 1998).

44. 952 F.Supp. 1119 (W.D. Pennsylvania 1997).

45. Id. at 1124 (citations omitted).

46. 937 F.Supp. 295 (S.D.N.Y. 1996), aff'd 126 F.3d 25 (2d Cir. 1997).

47. The issue of jurisdiction over the buyer who refuses to pay for conforming merchandise is less clear; merely entering into the contract, without more, is insufficient. See Burger King, supra note 27. However, again the medium through which the agreement is reached is not determinative.

48. 33 F. Supp.2d 907 (D. Oregon 1999). The case includes a good review of cases decided both before and after Zippo.

49. Id. at 910, 911.

50. The only sale to an Oregon resident had been made at the behest of the plaintiff.

51. 937 F.Supp. 161 (D.Connecticut,1996.

52. 947 F.Supp. 1328 (E.D. MO.1996).

53. Inset, 937 F.Supp. at *161.

54. Inset, 937 F.Supp. at 165.

55. Id. The language is primarily the court's. Although the exact meaning is not clear, it appears to be an argument that by choosing a medium that is national in scope an advertiser on the internet subjects herself to jurisdiction in every state.

56. Id. at 165.

57. supra n. 23.

58. Maritz at 1332.

59. Id. at 1333.

60. The court stated:

The information transmitted is clearly intended as a promotion of CyberGold's upcoming service and a solicitation for internet users, CyberGold's potential customers. This factor suggests that defendant is purposefully availing itself to the privilege of conducting activities in Missouri.

Id. at 1333.

61. Id.

62. Shapiro v. Santa Fe Gaming, 1998 WL 102677 (N.D.Ill.); Ragonese v. Rosenfeld, 722 A.2d 991 (1998); Pheasant Run v. Moyse, 1999 WL 58562 (N.D.Ill.); Graphic Controls Corp. v. Utah Medical Products, 1997 WL 27632 at *3 (W.D.N.Y.1997).

63. Shapiro at 2.

64. Ragonese at 994 (Foreign airline maintained a Web site with general information such as history of airline and information about flights and a toll-free telephone number for ticketing).

65. McDonough v. Fallon McElligott, Inc., 1996 WL 753991, *3 (S.D.Cal.1996).

66. The exercise of personal jurisdiction is contingent upon the Web site involving more than just the maintenance of a home page; it must also allow browsers to interact directly with the Web site on some level. In addition, there must also be some other non-Internet related contacts between the defendant and the forum state in order for the court to exercise personal jurisdiction. Blumenthal v. Drudge, 992 F.Supp. 44 (D.C. 1998) at 56. See also, Pheasant Run v. Moyse, 1999 WL 58562 (N.D.Ill.) at *3.

67. Id.

68. Vitullo v. Velocity Powerboats, 1998 WL 246152 (N.D.Ill.).

69. Esab v. Centricut, 1999 WL 27514 (D.S.C.) at *6.

70. Heroes, Inc. v. Heroes Foundation 958 F.Supp. 1 (D.C. 1996)

71. Id. at 5.

72. For example, in World Wide Volkswagen the Supreme Court said that due process ". . .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." 444 U.S. at 297, 100 S.Ct. at 567.

73. American Internetwork v. Access America, 975 F.Supp. 494 (S.D. N.Y. 1997); Hasbro Inc. v. Clue, Inc. 994 F.Supp. 34 (D. Massachusetts, 1997); Gary Scott International v. Baroudi, 981 F.Supp. 714 (D. Mass. 1997).

74. 952 F.Supp. 1119 (W.D. Pa.1997).

75. American Internetwork v. Access America, 975 F.Supp. 494 (S.D. N.Y. 1997).

76. 994 F.Supp. 34 (D. Massachusetts, 1997)

77. 994 F.Supp. 34 (D. Massachusetts, 1997)

78. 994 F.Supp. at 499.

79. If defendant sought to avoid subjecting itself to suit in New York, it could have chosen not to send those materials there. See World- Wide, 444 U.S. at 297 (a party that purposefully establishes contacts with a state "can act to alleviate the risk of burdensome litigation by procuring insurance, passing the expected costs on to customers, or, if the risks are too great, severing its connection with the State"). Through its contacts with New York, defendant availed itself of a commercial benefit, since it receives monthly payments from its New York subscribers for the services it provides them. The statements published by defendant on its home page that advertise its ability to aid customers "across the U.S." further support the inference that the New York subscriptions are not random or fortuitous, but are rather the result of defendant's purposeful efforts to avail itself of the benefits of New York as part of a nationwide market. 994 F.Supp. at 499.

80. 981 F.Supp. 714, 717 (D. Massachusetts, 1997).

81. 952 F.Supp. 1119 (W.D. Pa.1997).

82. . . . [T]he development of the law concerning the permissible scope of personal jurisdiction based on Internet use is in its infant stages. . . . . Nevertheless, our review of the available cases and materials reveals that the likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet. This sliding scale is consistent with well developed personal jurisdiction principles. Id. at *1124.

83. 952 F.Supp. at 1124.

84. Id at 1124.

85. Id.

86. Id. at 1125, (quoting Pres-Kap, Inc. v. System One, Direct Access, Inc., 636 So.2d 1351 (Fl.App. 1994)).

87. Id at 1124.

88. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980).

89. Id. at 1126.

90. Id. at 1127 (quoting International Shoe).

91. There can be no question that Pennsylvania has a strong interest in adjudicating disputes involving the alleged infringement of trademarks owned by resident corporations. We must also give due regard to the Plaintiff's choice to seek relief in Pennsylvania. Kulko, 436 U.S. at 92, 98 S.Ct. at 1696-97. These concerns outweigh the burden created by forcing the Defendant to defend the suit in Pennsylvania, especially when Dot Com consciously chose to conduct business in Pennsylvania, pursuing profits from the actions that are now in question. The Due Process Clause is not a "territorial shield to interstate obligations that have been voluntarily assumed." Burger King, 471 U.S. at 474.

92. 89 F.3d 1257 (6th Cir, 1996).

93. E.g. Comment, Michele N. Breen, Personal Jurisdiction in Cyberspace , 8 Seton Hall Const. L.J. 763 (1998); Note, Christine E. Mayewski, The Presence of a Web site as a Constitutionally Permissible Basis for the Exercise of Jurisdiction, 73 Ind. L.J. 297 (1997); Note, Corey B. Ackerman, World Wide Volkswagen Meet the World Wide Web, 71 St. John's L. Rev. 403 (1997); Comment, Timothy B. Nagy, Personal Jurisdiction and Cyberspace, 6 CommLaw Conspectus 101 (1997); Note, Gwenn M. Kalow, From the Internet to Court, 65 Fordham L. Rev. 2241 (1997); Note, Sean M. Flower, When Does Internet Activity Establish the Minimum Contact Necessary to Confer Jurisdiction, 62 Mo. L. Rev. 84 (1997).

94. 952 F.Supp. at *1124.

95. Id.

96. 1998 WL 246152 (N.D.Ill.).

97. Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 113 (1987) (plurality opinion).

98. . . . Even if sale of their boats to Modern Marine is insufficient under the narrow stream of commerce theory, this court finds that the Powerboat Defendants' web page, with its explicit solicitation of Illinois residents to attend the Chicago Boat Show and see Velocity powerboats, may serve as the "additional conduct" called for by Justice O'Connor. Such a solicitation, expressly informing residents to attend their "local boat show" and giving information about the Chicago Boat Show, is sufficient to show that the Powerboat Defendants did not merely send their products out into the stream of commerce to be floated about haphazardly to land where they would. Rather, the Powerboat Defendants took affirmative steps to target Illinois as a landing site for their products. 1998 WL 246152 at *6.

99. Id.

100. 998 F.Supp. 738 (W.D. Tex. 1998).

101. Id. at 744.

102. Id.

103. Blumenthal v. Drudge and America Online, Inc., 992 F. Supp. 44 (D.C. 1998).

104. Id. at 56.

105. Drudge reportedly received $250 from fifteen District of Columbia residents. Id. at 57.

106. Id.

107. 21 F. Supp. 2d 27 (D.C. 1998).

108. Id. at 38.

109. Id.

110. Id.

111. 5 F.Supp.2d 762 (D. Ariz. 1998).

112. 1999 WL 300285 (N.D.Ill.).

113. 1997 WL 148567 (S.D.Ind.)

114. 1997 WL 148567 at *4.

115. Id at *5.

116. Id. (stating that physical presence in Indiana is not necessary since the "'footfalls' were not physical, they were electronic . . . they were nonetheless, footfalls.")

117. Stomp, Inc. v. Neato, LLC, 1999 WL 635460 (C.D.Cal.)

118. Id. at *3.

119. Id. at *6.

120. Id.; Cf. Thompson v. Handa-Lopez, Inc. 998 F.Supp. 738 (W.D. Tex. 1998).

121. 130 F.3d 414 (9th Cir, 1997).

122. While the Web site was not strictly passive because it had the capability to receive e-mail communications, the court characterized it as "essentially passive" because there was no evidence that any e-mail communications were sent from Arizona and other than Cybersell AZ, there was no evidence of other hits from Arizona residents.

123. 33 F.Supp. 2d 907 (D. Or. 1999).

124. Id. at 920.

125. Id. at 920 (citing Zippo at 1124).

126. Id. at 921 (citing Zippo and adding that in the court's view this is the "something more" that the Ninth Circuit intended in Cybersell and Panavision).

127. Id.

128. The court seems to have discounted the single purchase because it found "that the sale to Ms. Lufkin was nothing more than an attempt by plaintiff to manufacture a contact with this forum sufficient to establish personal jurisdiction." Id. at 911.

129. 1999 WL 76794 (N.D.Tex.).

130. 1998 WL 299678, (N.D. Ill. 1998).

131. Cf. Zippo (describing the doing business over the Internet as entering 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." 952 F.Supp. at 1124).

132. 1997 WL 733905 (N.D.Ill.).

133. Cf. Vitullo v. Velocity Powerboats, 1998 WL 246152 (N.D. Ill.) (where the court found the defendant targeted Illinois by encouraging advertising a Chicago boat show).

134. There are numerous cases which follow Zippo and conclude that a passive Web site that merely advertises does not justify the exercise of jurisdiction. See: CFO v. CFO 2 Go, 1998 WL 320821 (N.D.Cal.) (test Web site with advertisement does not satisfy Zippo); SF Hotel Company v. Energy Investments, 985 F.Supp. 1032 (D. Kansas, 1997) (Mere general advertisement is passive Web site and does not meet Zippo test); Pheasant Run, Inc., v. Moyse No. 98 C 4202, 1999 WL 58562 (N.D. Ill. ) (Passive Web site, even with telephone number does not meet Zippo test for exercise of jurisdiction); Patriot Systems, Inc v. C-Cubed Corporation, 21 F. Supp. 1318 (D. Utah 1998) (passive Web site without discussion).

135. 1999 WL 319056 (D.NJ).

136. 1999 WL 319056 at *4.

137. Id at *4. The language is the court's. The author disagrees about the court's interpretation of World Wide Volkswagen. In fact, the author's understanding is that World Wide Volkswagen held exactly the opposite.

138. Mink v. AAAA Development LLC, et al., 1999 WL 728101 (5th Cir. (Tex.)).

139. Id. at *2 -*4.

140. Hypotheticals 1 & 1(a) dealt with general jurisdiction and the passive Web site.

141. Heliocopteros Nacionales de Columbia v. Hall, supra note __.

142. Osteotech v. Gensci Regeneration Sciences, Inc, supra note __.

143. Id.

144. See cases cited supra, note __.

145. Supra note __.

146. 1999 WL 27060 at *3.

147. McDonough v. Fallon McElligott, 1996 WL 753991 (S.D.Cal.) at *1828.

148. Esab v. Centricut, 1999 WL 27514 (D.S.C.).

149. Id. at *4. However, it should be noted that in the ESAB case, the actual Internet contacts were few, although the defendant site was fully interactive. So an alternate reading of the case could be that there can be no general jurisdiction without actual defendant interactive Internet activity. This reading would leave open the question of whether, if there were a large amount of actual Internet interaction between defendant and forum, general jurisdiction could be exercised. See also, Grutkowski v. Steamboat Lake Guides & Outfitters, 1998 WL 962042 (E.D. Pa. 1998). Interactive Web site, but actual contacts did not occur in forum. Held: no general jurisdiction.

150. 997 F. Supp. 782 (E.D. Texas 1998).

151. Id at 788.

152. Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (W.D.Pa.1997).

153. It should be noted that the court was aware that the flexible test was used in Zippo to measure the constitutionality of specific jurisdiction. However, the court stated that it saw no reason why the test could not equally apply to the exercise of general jurisdiction.

154. The court specifically relied on the case of Maritz, Inc. v. Cybergold, Inc., 947 F.Supp. 1328 (E.D.Mo.1996).

155. Maritz v. Cybergold, 947 F.Supp. 1328 (E.D. MO.1996), discussed supra n. 67, 72-75 and accompanying text.

156. "The Court need not decide today whether standing alone the Web site maintained by the defendant is sufficient to satisfy a finding of general jurisdiction. Nor must it look only to the traditional business contacts that the defendant has with the State of Texas. Rather, it is the combination of the two that leads the Court to the conclusion that the defendant maintains substantial, continuous and systematic contacts with Texas sufficient to subject it to personal jurisdiction." Mieczkowski at *788.

157. The court explicitly stated that it was not deciding whether the Web site standing alone was sufficient to justify the exercise of general jurisdiction. Mieczkowski at *788.

158. Helicopteros Nacionales de Colombia, S.A., 466 U.S. at 414-16.

159. 49 S.C. L. Rev. 925 South Carolina Law Review Summer 1998 Symposium: Conducting Business Over the Internet *925 PERSONAL JURISDICTION IN CYBERSPACE: SOMETHING MORE IS REQUIRED ON THE ELECTRONIC STREAM OF COMMERCE Howard B. Stravitz [FNaa1] at *928

160. 101 Harv. L. Rev. 610 THE MYTH OF GENERAL JURISDICTION Mary Twitchell at *926.