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Cyber Squabbles: Where Do You Sue?


If you want to sue a Web-based business, you'll need to know where to file the lawsuit.

What happens when you have a beef over an item or service purchased online? Your local state court -- where traditional power usually stops at the state line -- simply may not have the power to make a binding ruling over an online seller based in another state hundreds of miles away.

Personal Jurisdiction: The Basics

No matter what the subject, a court will not hear your case unless it has personal jurisdiction over all the parties involved. Having personal jurisdiction means that the court has the Constitutional right (legal power) to make a binding decision over the person doing the suing (the plaintiff) and the person being sued (the defendant).

Usually it's no problem to assert jurisdiction in a local court over a defendant who resides or operates a business in your state. That's because state and federal courts always have personal jurisdiction over state residents. But when the defendant's principal residence or place of business is not in the state where the lawsuit is filed (often called the "forum state"), you can haul the defendant into court only there if there is a meaningful connection or contact between the defendant and the state where the suit is filed.

In the world of the Internet, what this amounts to is that if the cyber bad guy you want to sue doesn't live in or operate a business in your state, owns no property there, and there are no other meaningful connections with that state, it means that it's unlikely that a local court will have personal jurisdiction or power over that person. But as we discuss below, there's more than one way to get personal jurisdiction.

Minimum Contacts

One way a court can claim personal jurisdiction is known as "minimum contacts," which refers to the fact that a business or person with sufficient contacts with a particular state can be dragged into court there even though they don't live in that state or base their business there. Usually, any substantial presence in the state will justify personal jurisdiction -- for example, if a business regularly solicits business in the state, derives substantial revenue from goods or services sold in the state, or engages in some other persistent course of conduct there.

 
EXAMPLES

A Pennsylvania court was able to obtain personal jurisdiction over a California Internet service provider that had 3,000 Pennsylvania subscribers. The act of processing the Pennsylvania applications and assigning passwords was sufficient to demonstrate the minimum contacts needed for personal jurisdiction. Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa 1997).

A Texas court gained personal jurisdiction over an out-of-state online gambling enterprise because the gambling operation entered into contracts with Texas residents to play online gambling games, sent emails to the Texas residents, and sent winnings to Texas residents. Thompson v. Handa-Lopez, Inc., 998 F. Supp. 738 (W.D. Tex. 1998).

The concept of "minimum contacts" can get tricky when it involves the Internet. Courts. Legal scholars are of the opinion that it is unfair to make every website owner subject to personal jurisdiction in every state simply because the site is viewable there. Similarly, sites that merely post information without making sales, called "passive sites," are unlikely to incur personal jurisdiction except in the state where their owner resides or does other business.

 
Example

A Minnesota website did not sell its nutrition products directly over the Web, but instead directed consumers to email the company's distributors. When a Texas company sued in Texas for patent infringement, the site was considered passive, with insufficient contacts to Texas to give the court personal jurisdiction over the defendant.

However, sites over which credit card sales or other active business is conducted, called "interactive sites," are more likely to satisfy the minimum contacts requirement.

 
Example

A California man running a website called "nfltoday.com" earned revenue from his website through advertising, specifically through the sale of sports betting ads. The site was generating substantial income through interstate commerce and was disrupting marketing efforts by the National Football League in New York. When the NFL sued for trademark infringement (both parties were using the trademark "NFL" for football-related services), a court determined that the site was not passive and had sufficient contacts with New York.

Copyright 2007 Nolo

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