GERALD S. HINNERS V. BRAD ROBEY, D/B/A/ ROBEY'SAnnotate this Case
RENDERED : MARCH 24, 2011
TO BE PUBLISHED
GERALD S . HINNERS
ON REVIEW FROM COURT OF APPEALS
CASE NO . 2008-CA-000989-MR
KENTON CIRCUIT COURT NO . 05-CI-03321
BRAD ROBEY, D /B/ A ROBEY'S PAWN WORLD
OPINION OF THE COURT BY JUSTICE VENTERS
Appellant, Gerald S . Hinners, a Kentucky resident, appeals from an
opinion of the Court of Appeals determining that Appellee, Brad Robey,
Missouri resident, is not subject to personal jurisdiction in Kenton Circuit
Court. Hinners sued Robey over the purchase of a vehicle which Robey had
advertised for sale on the Internet auction site, eBay.com. Hinners contends
that the requirements of Kentucky's long-arm statute, KRS 454 .2 10, and
federal due process standards for in personam jurisdiction over Robey in
relation to the transaction, were satisfied.
While we conclude that this particular eBay transaction falls within the
parameters of KRS 454 .2 10, we further conclude that this single contractual
transaction fails to establish sufficient minimum contacts with Kentucky so as
to make it reasonable under federal due process standards for Kentucky courts
to exercise personal jurisdiction over Robey in relation to the vehicle sale . We
accordingly affirm the Court of Appeals .
FACTUAL AND PROCEDURAL BACKGROUND
In the light most favorable to Hinners, I the facts are as follows. Robey,
doing business as Robey's Pawn World, is located in Sikeston, Missouri, and
Hinners is a resident of Kenton County, Kentucky . In September 2005, Robey
advertised for sale, on an eBay2 auction, a 2002 Cadillac Escalade. The listing
described the vehicle as having no prior collision damage, no electrical
problems, that it ran remarkably quiet, and that it was "better than average ."
The listing also advertised a warranty consisting of a "[free 1 month/ 1,000
mile Service Agreement ."
At the conclusion of the auction, Hinners's bid of $25,869 .00 stood as
the winning offer . In accordance with the conditions of the auction, Hinners
Procedurally, this case was decided in the circuit court by denial of Robey's motion to
dismiss for lack of jurisdiction . No evidentiary hearing was held . In ruling on the
motion, the trial court considered affidavits and other evidence outside of the
pleadings . In such circumstances, "the motion shall be treated as one for summary
judgment and disposed of as provided in Rule 56 ." See CR 12.02. A fundamental
principle in summary judgment review is that the evidence is to be viewed in the
light most favorable to the nonmovant. Steelvest, Inc. v . Scansteel Serv. Ctr., Inc.,
807 S .W.2d 476, 480 (Ky. 1991) . Accordingly, we view the facts in the light most
favorable to Hinners.
2 As is generally known, eBay.com is a popular online auction and shopping website
through which people and businesses buy and sell a broad variety of goods and
traveled to Missouri3 to complete the transaction and take possession of the
vehicle. In association with the transfer, Robey executed the necessary vehicle
transfer documents to enable the registration of the vehicle in Kentucky, and
the vehicle was subsequently titled and registered in this state . When Hinners
took possession of the vehicle, Robey again assured him that the vehicle had
never been damaged . At the completion of the sale, the parties renegotiated
the sales price at $23,000 .00 rather than the bid amount.4
Immediately after Hinners returned to Kentucky with the vehicle, its
electrical system malfunctioned. Hinners took the vehicle to a mechanic for
inspection, and was told that the vehicle had suffered extensive prior damage ;
that almost every panel on the vehicle had been damaged and had been either
replaced or filled with body putty; that the vehicle had been completely
repainted; and that the front doors and glass had been replaced . Shattered
window glass was found in various locations in the vehicle . Following the
purchase, Hinners took the vehicle in for . repairs on at least six occasions,
principally for electrical problems .
3 There is some indication in the record that delivery and execution of the paperwork
may have occurred in Illinois ; however, the relevant point is that delivery was
completed beyond the borders of Kentucky, and whether it was in Missouri or in
Illinois is of no significance .
4 According to Robey, this renegotiation resulted in the elimination of the warranty,
and one of the transactional documents in the record indicates the vehicle was
being sold "as is - no warranty." However, the document was not signed by
Hinners. The trial court never resolved this factual dispute, and for purposes of our
review, we shall presume the existence of the warranty described in the eBay
Hinners unsuccessfully attempted to contact Robey on several occasions
to discuss the matter and to attempt to enforce the warranty advertised on the
eBay listing. Having received no response, on December 22, 2005, Hinners
filed a Complaint against Robey in Kenton Circuit Court. The Complaint
alleged "that the Defendant defrauded the Plaintiff in that the Defendant knew,
or should have known that the vehicle had been extensively damaged and
failed to disclose that information to the Plaintiff."
Robey moved pursuant to CR 12.02(b) to dismiss the Complaint for lack
of personal jurisdiction on the grounds that he was a non-resident defendant
and was not otherwise subject to in personam jurisdiction under Kentucky's
long-arm statute, KRS 454 .2 10, or under federal due process minimum contact
standards. The trial court, however, concluded that it had personal
jurisdiction over Robey. After entry of the order overruling his motion to
dismiss, Robey failed to further participate in the proceedings. As a
consequence, and upon motion by Hinners, the trial court entered a default
judgment in favor of Hinners and awarded him damages of $36,320.05.5
Robey appealed the judgment .
The Court of Appeals, relying in significant part upon similar eBay and
Internet cases, from other jurisdictions, reversed the trial court's order,
concluding that the transaction was a random, fortuitous, and attenuated
contact with this state, and, accordingly,, that Robey did not have sufficient
5 The reason for the significant discrepancy in the purchase price and.judgment is not
relevant to our review.
minimum contacts with Kentucky to allow a Kentuc
court to assert personal
jurisdiction over him.
We granted discretionary review to examine in personam jurisdiction
issues in relation to Internet sales transactions, such as an eBay auction.
STANDARD OF REVIEW) BURDEN OF PROOF
When a lawsuit is filed in Kentucky against a non-resident defendant,
the plaintiff carries the burden of establishing jurisdiction over the defendant.
Auto Channel, Inc. v. Speedvision Network, LLC, 995 F. Supp. 761, 763 (W.D .
Ky. 1997) . Because the circuit court did not conduct an evidentiary hearing on
the issue of personal jurisdiction in considering Robey's motion to dismiss
pursuant to CR 12 .02, Hinners "need only make a prima facie showing of
jurisdiction." CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th Cir.
1996) (Applying federal counterpart to CR 12 .02) . 6 Hinners can meet this
burden by "establishing with reasonable particularity sufficient contacts
between [Robey] and the forum state to support jurisdiction ." Neogen Corp. v.
Neo Gen Screening, Inc., 282 F.3d 883, 887 (6th Cir. 2002) (citing Provident
Nat'l Bank v. California Fed . Savings & Loan Assn, 819 F.2d 434, 437 (3d Cir.
6 Cf.. Berthelsen v. Kane, 759 S.W.2d 831 (Ky. App. 1988) (Where the material allegations
in the complaint are, on their face, sufficient to establish the requirement for Kentucky
courts to exercise personal jurisdiction under the long-arm statute, KRS 454 .2 10, but
such allegations are refuted by affidavits that contain conflicting factual contentions,
the trial court should conduct an evidentiary hearing to establish an evidentiary basis
for its resolution of the conflict.)
The question of whether our courts may exercise personal jurisdiction
over Robey is an issue of law, and so our' review is de novo. Appalachian
Regional Healthcare,, Inc. v. Coleman, 239 S .W.3d 49, 53-54 (Ky . 2007) ("The
question of jurisdiction is ordinarily one of law, meaning that the standard of
review to be applied i s de novo.") .
IN PERSONAM JURISDICTION OVER
ROBEY IS CONFERRED UNDER KRS 454 .210
In the recent case Caesars Riverboat Casino, LLC v. Beach,
(Ky. 2011), we reevaluated the requirements for long-arm jurisdiction
against a nonresident defendant. Specifically, we overruled Wilson v. Case, 85
S .W.3d 589 (Ky. 2002) and other cases that had created the impression that
the language of KRS 454 .210 had been subsumed by federal due process
standards for exercising in personam jurisdiction over nonresidents . We
clarified "that the proper analysis of long-arm jurisdiction over a nonresident
defendant consists of a two-step process" under which review first proceeds
under KRS 454.210 and, ifjurisdiction is permissible under the long-arm
statute, only then is jurisdiction under federal due process examined . Caesars,
(slip. op . pg 11) . Accordingly, we must first examine
jurisdiction over Robey under KRS 454 .210 independent of federal due process
KRS 454 .210(2) (a) enumerates nine distinct instances in which
Kentucky courts may exercise personal jurisdiction over a nonresident. Before
the circuit court, Hinners argued that three of the nine provisions of KRS
454 .210 authorized the extension of long-arm jurisdiction over Robey. They
(2) (a) A court may exercise personal jurisdiction over a person who
acts directly or by an agent, as to a claim arising from the person's :
1 . Transacting any business in this Commonwealth;
2 . Contracting to supply services or goods in this Commonwealth;
4 . Causing tortious injury in this Commonwealth by an act or
omission outside this Commonwealth if he regularly does or
solicits business, or engages in any other persistent course of
conduct, or derives substantial revenue from goods used or
consumed or services rendered in this Commonwealth, provided
that the tortious injury occurring in this Commonwealth arises out
of the doing or soliciting of business or a persistent course of
conduct or derivation of substantial revenue within the
Commonwealth . . . .
Long-arm jurisdiction analysis is especially dependent upon the
underlying facts of the individual case, so our first undertaking is to identify
the relevant factual predicate for our review . Those facts are : (1) Robey,
situated in Missouri, advertised the vehicle for sale on eBay; (2) Hinners, in
Kentucky, submitted the winning bid; (3) Hinners traveled out-of-state to take
possession of the vehicle ; (4) Robey executed vehicle transfer documents to
enable Hinners to obtain a Kentucky registration and title for the vehicle; (5)
Robey, in his eBay listing and in oral statements to Hinners, misrepresented
7 KRS 454 .210(2)(a)(5) includes within the long-arm statute cases involving a breach of
warranty by a seller of goods who "regularly does or solicits business, or engages in
any other persistent course of conduct, or derives substantial revenue from goods
used or consumed or services rendered in this Commonwealth." Since there is no
evidence of record that Robey has ever engaged in any other business in Kentucky,
this section cannot sustain long-arm jurisdiction over Robey.
the condition of the vehicle; and (6) the vehicle came to Kentucky covered by
Robey's warranty, the one month/ 1000 mile "service agreement."
We agree with Hinners that Robey's conduct constitutes "Contracting to
supply services or goods in this Commonwealth" and therefore KRS
454 .210(2)(a)(2) is applicable . A plain reading of the statutory language
produces the interpretation that the contract need not be made or executed "in
this Commonwealth," but, rather, only that the contract provide for the
supplying of services or goods to be transported into, consumed or used in
Kentucky . Here, although the final deal was executed beyond Kentucky's
border, it was anticipated by the parties from the outset that the vehicle would
be transported to and used in Kentucky . Clearly, Robey "contract[ed] to supply
services (the warranty) or goods (the vehicle) in this Commonwealth ."
Subjecting Robey to adjudication in Kentucky is therefore authorized by the
statute, ifthe claim asserted against him is one "arising from" his contract to
supply services or goods in this state . Caesars, -. S .W.3d , (slip. op . pg . 13) .
In Caesars, we rejected the use of a "but for" test in determining if a
plaintiffs claim has "aris[en] from" the specific statutory predicate authorizing
in personam jurisdiction. Instead, we said that there must exist "a reasonable
and direct nexus between the wrongful acts alleged in the complaint and the
statutory predicate for long-arm-jurisdiction." Id. at
(slip . op. pg. 14) . We
held that a slip-and-fall accident in an Indiana casino could not reasonably be
construed as "arising from" the casino's "transacting business" in Kentucky by
way of advertising and promotional campaigns, and sponsoring civic events in
Kentucky . The connection between the tort claim based upon a theory of
premises liability and the casino's business activity in Kentucky was far too
attenuated . In stark contrast, Hinners's claims for fraudulent
misrepresentation and breach of warranty are based upon the very same
contract "to supply[ ] goods" (i .e., the Cadillac Escalade) upon which long-arm
jurisdiction under the statute is predicated . It is self-evident from the
complaint itself that the claims of misrepresentation "arise from" from Robey's
contract to supply goods in Kentucky .
Therefore, we conclude that this transaction meets the requirements for
long-arm jurisdiction under KRS 454.210(2)(a)(2) .& Thus, under the two-step
long-arm jurisdictional analysis identified in Caesars, we proceed to a
determination of whether this application of our statute offends the standards
of federal due process.
EXERCISE OF JURISDICTION OVER ROBEY
VIOLATES FEDERAL DUE PROCESS STANDARDS
We begin with a review of some basic principles underlying federal due
process as it relates to long-arm jurisdiction . "[D]ue process requires . . . that
in order to subject a defendant to a judgment in personam, if he be not present
within the territory of the forum, he have certain minimum contacts with it
such that the maintenance of the suit does not offend `traditional notions of
Because we find that long-arm jurisdiction is permissible under KRS
454 .210(2)(a)(2), we need not analyze this transaction in terms of the other
provisions of the long-arm statute upon which Hinners relied.
fair play and substantial justice.' International Shoe Co. v. Washington, 326
U .S. 310, 316 (1945) . As such, due process protects an individual's liberty
interest in not being subject to the binding judgments of a forum with which he
has established no meaningful "contacts, ties, or relations ." Id. at 319 . By
requiring that individuals have "fair warning that a particular activity may,
subject [them] to the jurisdiction of a foreign sovereign,"g the Due Process
Clause "gives a degree of predictability to the legal system that allows potential
defendants to structure their primary conduct with some minimum assurance
as to where that conduct will and will not render them liable to suit[.]" WorldWide Volkswagen Corp. v. Woodson, 444 U .S. 286, 297 (1980) ; Burger King
Corp. v. Rudzewicz, 471 U.S . 462, 471-472 (1985) .
Where a forum seeks to assert specific jurisdiction over an out-of-state
defendant who has not consented to suit there, this "fair warning" requirement
is satisfied if the defendant has "purposefully directed" his activities at
residents of the forum, Keeton v. Hustler Magazine, Inc., 465 U.S . 770, 774,
(1984), and the litigation results from alleged injuries that "arise out of or relate
to" those activities. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U .S .
408, 414 (1984) ; Burger King, 471 U.S . at 472 .
Thus `[t]he forum State does not exceed its powers under the Due
Process Clause if it asserts personal jurisdiction over a corporation
that delivers its products into the stream of commerce with the
expectation that they will be purchased by consumers in the forum
State' and those products subsequently injure forum consumers.
Similarly, a publisher who distributes magazines in a distant State
may fairly be held accountable in that forum for damages resulting
9 Shaffer v. Heitner, 433 U .S. 186; 218 (1977) (Stevens, J., concurring in judgment) .
there from an allegedly defamatory story. And with respect to
interstate contractual obligations, we have emphasized that parties
who "reach out beyond one state and create continuing
relationships and obligations with citizens of another state" are
subject to regulation and sanctions in the other State for the
consequences of their activities .
Burger King, 471 U.S . at 473 (citations omitted) .
Further, it is a well-settled principle that exercising personal jurisdiction
does not turn on whether the defendant at any point physically entered the
Although territorial presence frequently will enhance a potential
defendant's affiliation with a State and reinforce the reasonable
foreseeability of suit there, it is an inescapable fact of modern
commercial life that a substantial amount of business is
transacted solely by mail and wire communications across state
lines, thus obviating the need for physical presence within a State
in which business is conducted . So long as a commercial actor's
efforts are `purposefully directed' toward residents of another State,
we have consistently rejected the notion that an absence of
physical contacts can defeat personal jurisdiction there .
Id. at 476.
And finally, "where the defendant `deliberately' has engaged in significant
activities with a State, or has created `continuing obligations' between himself
and residents of the forum, he manifestly has availed himself of the privilege of
conducting business there, and because his activities are shielded by `the
benefits and protections' of the forum's laws it is presumptively not
unreasonable to require him to submit to the burdens of litigation in the forum
as well." Id. at 475-476.
In Southern Mach. Co. v. Mohasco Industries, Inc., 401 F.2d 374 (6th Cir.
1968), the Sixth Circuit Court of Appeals devised a test for determining the
outer limitations of in personam jurisdiction based upon a defendant's single
act in relation to the forum state, such as we have here . This test is stated as
The first prong of the test asks whether the defendant purposefully
availed himself of the privilege of acting within the forum state or
causing a consequence in the forum state. The second prong
considers whether the cause of action arises from the alleged instate activities [or consequence. 10] The final prong requires such
connections to the state as to make jurisdiction reasonable .
Id. at 381 ; see also Wilson, 85 S .W .3d at 593 ; Tube Turns
Corp. v. Patterson Co., Inc., 562 S.W .2d 99, 100 (Ky. App . 1978) . 11 Because
this is a "single act" case, we will continue our review under the Mohasco test.
Upon review of the facts, it immediately becomes apparent that the
second prong of the Mohasco test is satisfied . As we noted in the preceding
to A comparison of the second prong of the test with the first prong discloses that
there is a lack of parallelism between the two. Whereas the first prong is met if the
defendant purposefully avails himself of the privilege either of acting within, or
causing a consequence in the forum state, the second prong, as stated in Mohasco
and Wilson, refers only to the acting within the forum state provision of prong one,
to the exclusion of the causing a consequence provision . Thus, to achieve
congruency between the two prongs, and avoid a potentially anomalous result, it is
necessary to extend the inquiry in prong two to ask also, where appropriate,
whether the plaintiffs cause of action arises from the consequence caused in the
state as found in prong one.
11 A s previously noted, in Caesars, we abrogated the suggestion as stated in Wilson
that the Kentucky long-arm statute and federal due process "merge" into a single
analysis . With our decision in Caesars, therefore, the question may reasonably
arise whether our prior adoption of this test survives our determination that
analysis under the long-arm statute and federal due process no longer "merge."
This test was originally designed with the notion in mind that the long-arm statute
could, in effect, be disregarded ; and review could immediately proceed to federal
due process review. Thus, the reason for our adoption of the test to begin with was
to define the outer limits of federal due process . Accordingly, the three-part
Mohasco test remains an appropriate test for examining long-arm jurisdiction under
federal due process limits in cases involving a single contact by the defendant.
section of this opinion, Hinners's claim arises from the in-state consequences
set in motion by Robey's contract to supply and warrant a vehicle in Kentucky .
However, for the reasons explained below, we conclude that neither the first
prong nor the third prong of the Mohasco test is satisfied, and thus the
assertion of personal jurisdiction over Robey by Kentucky courts in this matter
offends his due process rights.
Purposeful Availment by Actinq or Causing a Consequence in Forum State
The first prong of the Mohasco test asks whether the defendant
purposefully availed himself of the privilege of acting within the forum state or
causing a consequence therein. Obviously, by merely posting his eBay
advertisement with knowledge that it might attract potential bidders from
Kentucky, Robey did not in the traditional sense "purposefully avail" himself of
the privilege of acting in Kentucky . This method of selling an item created no
particular or unique relationship to Kentucky such that it could fairly be said
that he purposefully availed himself of the privilege of acting within this
Commonwealth . Robey did not limit the auction to bidders from Kentucky or
target his advertisement to Kentucky residents, and in fact could not know the
resident state of the successful bidder until the auction was complete . See
Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883 (6th Cir. 2002) ("A
defendant purposefully avails itself of the privilege of acting in a state through
its website if the website is interactive to a degree that reveals specifically
intended interaction with residents of the state .") (quoting Zippo Mfg. Co. v.
Zippo Dot Com, Inc., 952 F . Supp. 1119, 1124 (W .D . Pa. 1997)) ; cf.
Bradsby Co . v.
Hall, 147 F. Supp . 2d 672 (W.D . Ky. 2001) (In making a
determination of whether a nonresident defendant purposefully availed itself of
the forum state's laws by entering into a business contract with a forum state
resident, the reviewing court must consider prior negotiations of the parties,
future consequences contemplated by parties, terms of the contract, and the
parties' actual course of dealing.) .
Nevertheless, the first prong of the Mohasco test may also be satisfied if a
defendant has purposefully availed himself of the privilege of causing a
consequence in the forum state. 12 In this transaction, (again assuming
Hinners's allegations to be true), Robey did in fact cause a consequence in
Kentucky, by selling a defective vehicle to a resident of the state, with all that
entails such as highway safety concerns and automobile repair expenses . But,
it may not reasonably be said that Robey "purposefully availed" himself of the
privilege of causing that consequence in Kentucky . Robey did not select a
Kentucky resident as the purchaser of his vehicle. To the contrary, it was
Hinners that elected to do business with a Missouri seller . When the auction
was completed, Robey was bound by the auction contract to transfer the
vehicle to the purchaser for registration and use wherever that purchaser lived .
That the buyer's home state was Kentucky is
a purely fortuitous consequence,
The term "consequence" is here used in its normal sense, meaning: 1 : a conclusion
derived through logic: inference; 2 : something produced by a cause or necessarily
following from a set of conditions . See Merriam Webster Dictionary,
http ://www.merriam-webster .com/dictionary/ consequence (last viewed Feb . 21,
not a purposeful choice 'of Robey. Thus, the first prong of the Mohasco test
cannot be satisfied because Robey did not purposefully avail himself of the
privilege of acting in Kentucky or causing a consequence in Kentucky .
Reasonableness of Jurisdiction in Kentucky
The final prong of the Mohasco test considers whether the defendant's
connections to the state are such so as to make jurisdiction reasonable . While
Internet commerce is, relatively speaking, a new method of transacting
commercial activity, nevertheless, traditional federal due process standards
remain applicable to the review process :
The [Inneernet, which is a worldwide interconnected computer
network, undoubtedly challenges the 'territorial-based concepts'
that courts have traditionally applied to problems of personal
jurisdiction . . . . At the same time, it is equally true that
traditional constitutional requirements of foreseeability, minimum
contacts, purposeful availment, and fundamental fairness must
continue to be satisfied before any activity-including [I]nternet
activity-can support an exercise of personal jurisdiction.
Dagesse v. Plant Hotel N.V., 113 F. Supp . 2d 211, 221-222 (D .N.H . 2000) ;
Metcalf v. Lawson, 802 A.2d 1221, 1225 (N .H . 2002) .
"In analyzing the significance of Internet contacts, therefore, most courts
hold that the constitutionality of a State's exercise of jurisdiction is
proportionate to the nature and quality of the commercial activity the
defendant conducts over the Internet." Metcalf, 802 A.2d at 1225; Sports
Authority Michigan, Inc. v. Justballs, Inc ., 97 F. Supp . 2d 806, 812-13 (E.D.
Mich. 2000) . For assistance in analyzing the nature and quality of a
defendant's Internet activity, many courts have adopted the framework
developed by the federal district court in Zippo, 952 F. Supp . at 1119 . This test
reads as follows :
. . . 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. E.g. CompuServe,
Inc. v. Patterson, 89 F.3d 1257 (6th Cir. 1996) . 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 in it is not
grounds for the exercise personal jurisdiction . E.g. Bensusan
Restaurant Corp., v. King, 937 F. Supp. 295 (S.D .N.Y. 1996) . The
middle ground is occupied by interactive Web sites where a user
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 . E.g. Maritz, Inc. v. Cybergold, Inc.,
947 F. Supp. 1328 (E.D. Mo . 1996) .
Zippo, 952 F. Supp at 1124 ; see also, e.g., Dagesse, 113 F. Supp. 2d at 219-24;
Sports Authority Michigan, Inc., 97 F. Supp. 2d at 812-14 ; Metca~f, 802 A.2d at
1226. Upon application of the Zippo test, a typical single eBay transaction
occupies the section of the scale where the defendant has simply posted
information on a passive Internet website which is accessible to users in
foreign jurisdictions and which does little more than make information
available to those who are interested . In such cases, it is presumed that there
is no jurisdiction over the defendant, and thus application of the Zippo test
points in the direction that Kentucky will not have jurisdiction over this
As made clear in Zippo, it bears emphasis that a single listing, as is
typical in an eBay sale, is to be distinguished from situations where a dealer
maintains an ongoing commercial website. Such a single listing is not part of
broader e-commerce activity ; the listing temporarily advertises a good for sale
and that listing is closed once the item is sold, "thereby extinguishing the
Internet contact for this transaction within the forum state (and every other
forum) ." Boschetto v. Hansing, 539 F. 3d 1011, 1018 (9th Cir. 2008) . It follows
from this that the "likelihood that personal jurisdiction can be constitutionally
exercised is directly proportionate to the nature and quality of the commercial
activity that an entity conducts over the Internet." Id. (citing Cybersell, Inc. v.
Cybersell, Inc., 130 F.3d 414, 419 (9th Cir. 1997)) ; Zippo, 952 F. Supp. at 1124 .
Accordingly, the maintaining of a large-scale website which is intended to, and
does, regularly attract Kentucky business is not at all like the case we address
Traditional due process principles relating to the formation of a single
contract touching upon the forum state likewise point in the direction that
jurisdiction in Kentucky is not permissible because of a single eBay sale. Not
surprisingly, forum state jurisdiction has been considered in other cases
involving a single contract between a resident buyer and a nonresident seller,
albeit in other contexts. These cases have resulted in the development of the
well-settled point that a single contract touching upon the forum state will not,
standing alone, subject the defendant to jurisdiction. Burger King, 471 U .S. at
478. ("If the question is whether an individual's contract with an out-of-state
party alone can automatically establish sufficient minimum contacts in the
other party's home forum, we believe the. answer clearly is that it cannot.") .
Thus, in the usual case, a single contract with a nonresident, whether buyer or
seller, and regardless of their method of interaction, will not justify jurisdiction
over the defendant. Tube Turns Div. of Chemetron v. Patterson Co., 562 S.W.2d
99 (Ky. App. 1978) (Jurisdiction over a nonresident purchaser is not obtained.
where the nonresident's only contact within the state was negotiation by
telephone and mail culminating in a single transaction) . 13 A transaction such
as the one between Robey and Hinners falls squarely within this rule .
Moreover, as emphasized by the Court of Appeals, a defendant may
not be haled into - the court of a foreign jurisdiction solely as a result of random,
fortuitous, or attenuated contacts, Keeton, 465 U.S . at 774; World-Wide
Volkswagen, 444 U.S . at 299, or because of the unilateral activity of another
party or a third person, Helicopteros Nacionales de Colombia, S.A., 466 U.S . at
417; Burger King, 471 U.S . at 475 . A single eBay sale such as in the present
case represents a quintessential example of a random, fortuitous, and
attenuated contact. Accordingly, this well-established principle weighs against
A s noted, Hinners alleges that Robey holds a Missouri vehicle dealer's license, which
we assume to be true. That, however, is insufficient to overcome the basic
principles as discussed above. Even assuming Robey is a automobile dealer, the
only evidence of record involving Kentucky is this single transaction.
In view of the above authorities, we conclude that under traditional
principles of federal due process review, in the case of a single contract formed
over the Internet and touching upon this Commonwealth, and when the sale is
completed and thereafter each party goes his own way, federal due process
rules do not permit a resident buyer to summon the nonresident seller into this
Commonwealth to litigate the transaction . 14
Our conclusion is supported by decisions from other jurisdictions which
have reached a similar result under comparable facts, and is the majority view.
See, e.g., Boschetto v. Hansing, 539 F .3d 1011, 1017 (9th Cir. 2008) (purchase
by California plaintiff of vehicle through eBay from Wisconsin sellers did not
permit jurisdiction of defendants because "the lone transaction for the sale of
one item does not establish that the Defendants purposefully availed
themselves of the privilege of doing business in California" and was
"insufficient to have created a substantial connection with California" because
it was a . "one-shot affair .") ; Sayeedi v. Walser, 835 N.Y .S .2d 840 (N .Y. Civ . Ct .
2007) ("No evidence was provided by plaintiff as to defendant's overall eBay
statistics, experience, or any marketing directed at potential customers,
designed to welcome bids from New Yorkers or any other acts that indicate
The warranty provision between Robey and Hinners does not alter our view. As
previously noted, KRS 454 .210(5) addresses the situation whereby a seller
introduces a warranted product into this Commonwealth and thereby causes
injury. This provision limits jurisdiction to instances in which the seller "also
regularly does or solicits business, or engages in any other persistent course of
conduct, or derives substantial revenue from goods used or consumed or services
rendered in this Commonwealth[ .]" Therefore, as our long-arm statute specifically
speaks to this point, we will not apply a different rule in our federal due process
defendant may be purposely availing himself specifically to the business of New
Yorkers or any desire to take advantage of New York law.") ; Karstetter v. Voss,
184 S .W.3d 396, 405 (Tex. App . 2006) (Action in Texas to enforce a Kansas
judgment - "There was no evidence that Appellees traveled to Kansas or
engaged in other transactions with appellant or other Kansas residents either
through the eBay service or otherwise.") ; Metcalf, 802 A.2d at 1227 ("The
isolated nature of this transaction and the absence of any evidence that the
defendant was a commercial seller militate against a finding of jurisdiction.") ;
Choice Auto Brokers, Inc. v. Dawson, 274 S.W .3d 172 (Tex. App. 2008) (In
action brought by Texas buyer against Florida-based Internet automobile
dealer, held that dealer's potential liability for sale did not arise from nor was it
related to an activity conducted within Texas, and therefore dealer did not have
minimum contacts necessary to support exercise of personal jurisdiction .)
As pointed out by Hinners, there are cases holding the other way in
Internet transaction cases. See, for example, Dedvukaj v. Maloney, 447 F.
Supp . 2d 813, 820 (E.D . Mich . 2006) (When a commercial transaction formed
over and through the Internet does not meet a buyer's expectations, sellers
should not be surprised that they might be called upon to respond in a legal
forum in the buyer's home state) ; First Tennessee Nat. Corp . v . Horizon Nat.
Bank, 225 F. Supp. 2d 816, 820-21 (W.D . Tenn. 2002) (holding limited
personal jurisdiction in Tennessee existed over a Kansas bank, where the
bank's website stated that it was approved to lend in "All 50 States," and
permitted United States residents to obtain mortgage loans, obtain expert loan
advise, and receive daily commentary) ; Envin v. Piscitello, 627 F. Supp . 2d 855
(E.D . Tenn. 2007) (Exercise of personal jurisdiction over Texas seller on
Tennessee buyer's claims for breach of contract and misrepresentation of
condition of automobile sold though eBay comported with federal due process .) .
Nevertheless, upon review of such cases, we find them to be either factually
distinguishable or based upon less persuasive analysis than the countervailing
cases upon which we base our conclusion . Accordingly, we conclude that the
extension of long-arm jurisdiction over Robey under the circumstances of this
case exceeds the limits of in personam jurisdiction allowed under the Due
Process Clause of the federal Constitution .
In summary, we conclude that, although under the circumstances
present here the extension of in personam jurisdiction over Robey is supported
by KRS 454..2 10, federal due process standards do not permit Kentucky to
exercise personal jurisdiction over an out-of-state defendant as a result of a
single internet sale, such as an eBay transaction. Therefore, we affirm the
Court of Appeals and remand this matter to the Kenton Circuit Court for entry
ofjudgment consistent with this opinion .
All sitting. All concur.
COUNSEL FOR APPELLANT:
Richard E. Wentz
Adams, Stepner, Woltermann 8v Dusing, P .L.L.C.
40 West Pike Street
P O Box 861
Covington, Kentucky 41012-0861
COUNSEL FOR APPELLEE:
David Michael Andrew
John Michael Dunn
Reminger Co., L.P.A.
250 Grandview Drive, Ste . 550
Ft. Mitchell, Kentucky 41017