TO: NPC Grader
FROM: Sarrah Marting
DATE: October 10th, 2015
RE: Froogle v. Mary

FACTS: Froogle is based in California, Mary has a business in Vermont. Froogle and Mary have a contract allowing Mary to advertise on Froogle’s search engine. Mary has never been in California, all communication between Froogle and Mary has been done via telephone and internet. Froogle claims that Mary has violated their agreement. Froogle has filed a suit against Mary in the Superior Court for the county of Monterey, in Salinas California.

ISSUE:
Does the Superior Court of Salinas California have personal jurisdiction over Mary an out of state defendant who advertises on a California based search engine?

RULE:
In Pavlovich v. Superior Court, 29 Cal. 4th 262 (2002), the defendant contended that the court did not have jurisdiction over him solely on the posting of a source code on his website. The court found that having a website, like placing a product into the stream of commerce may be felt nationwide worldwide even, but without more it is not an act of purposefully directed toward the forum state. California courts may exercise personal jurisdiction on any basis consistent with the Constitutions of California and the United States. ( Code Civ. Proc., § 410.10.)In making this determination, courts have identified two ways to establish personal jurisdiction. “Personal jurisdiction may be either general [269] or specific. A court may exercise specific jurisdiction over a nonresident defendant only if: (1) “the defendant has purposefully availed himself or herself of forum benefits” (2) “the ‘controversy is related to or “arises out of” [the] defendant's contacts with the forum’ ” and (3) “ ‘the assertion of personal jurisdiction would comport with “fair play and substantial justice” ' ". The purposeful availment inquiry focuses on the defendant's intentionality. This prong is only satisfied when the defendant purposefully and voluntarily directs his activities toward the forum so that he should expect, by virtue of the benefit he receives, to be subject to the court's jurisdiction based on” his contacts with the forum. Thus, the “ ‘purposeful availment’ requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts, or of the ‘unilateral activity of another party or a third person.’ Foreseeability of effects in the forum is not itself enough to justify long-arm jurisdiction”].) Instead, the plaintiff must also “point to contacts which demonstrate that the defendant expressly aimed its tortious conduct at the forum … .”, “the plaintiff must show that the defendant knew that the plaintiff would suffer the brunt of the harm caused by the tortious conduct in the forum, and point to specific activity indicating that the defendant expressly aimed its tortious conduct at the forum.”Internet use, other courts have considered this issue, and most have adopted a sliding scale analysis. “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. [Citation.] 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 [of] personal jurisdiction. [Citation.] 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.”

In Shisler v. Sanfer Sports Cars, Inc., 146 Cal. App. 4th 1254, to satisfy due process requirements, the defendant must have 'minimum contacts' with the forum of the state such that the maintance of the suit ' does not offend the " traditional notions of pair play and substantial justice." ' " Personal jurisdiction may be either general or specific. “The nature and the quality of the defendant's contacts determine whether jurisdiction, if exercised, is general or specific. General jurisdiction exists when a defendant is domiciled in the [1259] forum state or his activities there are substantial, continuous, and systematic.” Where the contacts are sufficiently substantial, continuous, and systematic, it is not necessary that the cause of action alleged be connected with the defendant's business relationship to the forum. But when “contacts that are random, fortuitous, or attenuated do not rise to the minimum level, and general jurisdiction cannot be exercised under these circumstances.” General jurisdiction is proper only where the defendant's contacts in the forum are continuous and systematic. Continuous and systematic contacts include such activities as maintaining an office and employees in the forum, use of forum bank accounts, and the marketing or selling of products in the forum state. Defendant has no physical presence in California, is not registered to do business here, and has never intentionally directed its marketing efforts to California residents. In evaluating Internet activity for jurisdictional purposes there is the sliding scale test: “ ‘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 [1261] knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper. [Citation.] 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 [of] personal jurisdiction.

Analysis: Pavlovich was a resident of Texas, he had never resided in California nor had any place of business, a phone listing, or bank account in California. Pavlovich nor his company had ever solicited and business in California nor did they have any business contacts. Pavlovich operated a website with text and links to other sites, his site only provided information it did not solicit or transact any business and permitted no exchange of information between its owner or the visitors on the website. His website merely posts information and has no interactive features. There is also no record that the website targeted California. These facts are very similar to Mary she also never resided, had a place of business, phone listing or bank account in California. Mary operates an advertising website that can be felt nationwide, worldwide even, but this is not an act directed to the state forum and like in the Pavlovich case there is no record suggesting that the Mary or the site targeted California.

Shisler was a resident of Florida, that operates a internet website selling new and used cars. His only physical place of business is in Miami Florida. Shisler's main clientele are residents of southern Florida. Shisler nor his company have ever owned or lease property in California, and have never directly advertised in the state( his website used a drop box to use for a form clientele has to fill out it also has all 50 states included in the drop box.) Nor did he intentionally target any California resident as a potential buyer or seller of a car. Over 32 years in business he has sold about 44,800 vehicles fewer then 10 of those have been sold to residents of California. The website did not target California residents. The court found that Shisler lacked minimum contacts with the stated and ruled granting Shisler's motion to quash service of summons and was affirmed. Like Mary his website is available to anyone around the world that has access to the internet. There is also no evidence that Mary or the site targeted residents of California.

Conclusion: Mary advertising on Froogle's search engine is not sufficient enough for California to have personal jurisdiction over Mary.