Caught in the Web--can your Web site expose you to litigation almost anywhere?

Lewis, Veronica Smith

"Man should not draw lines on the land. The winds will dim them, the snows will cover them, and the rains will wash them away."

- Cochise

I.

INTRODUCTION

Territorial lines have always played an important role in American jurisprudence, but as we enter the Twenty-first century, these words have become all too true. Use of the Internet is rising exponentially, and the advent of global computer networks has made geographical boundaries virtually obsolete. Due to the diversity of its users, the Internet is becoming a breeding ground for disagreement. On-line contracts are being breached, on-line torts are being committed, and on-line crimes are being perpetrated. As use of the Internet proliferates, a host of novel issues continues to challenge the legal world.

One of the most important issues raised by cyberspace activity is whether an individual or organization that engages in Internet activity is, as a result, subject to litigation almost anywhere. Under the traditional rule, a court has "personal jurisdiction" over a party - that is, the power to hear a lawsuit against an individual or an organization - only when the party has certain "minimum contacts" with the state in which the court is located. Thus, a party can only be sued in a location - or, as the courts call it, "a forum" - where the party has "minimum contacts."

As an increasing number of individuals and businesses have begun to rely on the Internet, courts have been forced to determine which activities, if any, are sufficient to expose a party to litigation in forums with which that party has Internet contacts. Over the past few years, there have been a flurry of judicial decisions regarding a party's use of a web site and whether it is sufficient to constitute the requisite "minimum contacts" necessary to subject the party to nationwide - indeed, worldwide - jurisdiction. Although the Internet has an endless geographic reach, thereby potentially exposing a party to litigation almost anywhere, the courts have limited the exercise of personal jurisdiction over defendants with Internet contacts in accordance with traditional principles of personal jurisdiction law. Early on, there was great uncertainty surrounding Internet personal jurisdiction issues. A body of web personal jurisdiction jurisprudence, that will allow Internet users to tailor their activity and limit their exposure to liability in distant forums, has now begun to emerge.

This article explains the general principles courts have traditionally used to determine whether they can exercise personal jurisdiction over a party and how the courts have resolved new personal jurisdiction issues created by Internet activities. The paper also describes ways that you can tailor your Internet business activity to limit the risk of litigation in a distant, inconvenient forum and possible defenses you may be able to raise to obtain a dismissal or transfer out of such a forum.

II.

THE GENERAL RULES FOR DETERMINING PERSONAL JURISDICTON

A. The Two-Part Inquiry Used to Determine Personal Jurisdiction Questions

The traditional analysis of personal jurisdiction disputes consists of a twopart inquiry. First, the court will examine the long-arm statute of the state in which it sits.1 A state's long-arm statute allows courts in that state to exercise personal jurisdiction over non-resident defendants that engage in certain activities within the state. The statute normally enumerates specific activities that will subject a party to litigation in the state. For example, many state longarm statutes permit personal jurisdiction if the defendant transacted business or caused a tortious injury within the state.

If the court decides that the state's long-arm statute permits it to exercise personal jurisdiction over the defendant, it then conducts the second part of the jurisdictional analysis and determines whether an assertion of jurisdiction under the circumstances at issue comports with constitutional due process requirements. Many states, including Texas, have ruled that their long-arm statutes permit courts to assert personal jurisdiction to the fullest extent consistent with constitutional due process guarantees.2 In those situations, the statutory and constitutional, inquiries merge.

B. The "Minimum Contacts" Constitutional Standard

The Fourteenth Amendment to the United States Constitution provides that "[n]o state shall... deprive any person of life, liberty, or property, without due process of law."3 The constitutional due process guarantees have been held to limit a court's ability to adjudicate a dispute against a defendant who is not a resident of the forum in which the court sits. When a court exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant's contacts with the forum, the court is exercising "specific jurisdiction" over the defendant. When a court exercises personal jurisdiction over a defendant in a suit not arising out of or related to the defendant's contacts with the forum, the court is exercising "general jurisdiction" over the defendant.4 Most Internet personal jurisdiction cases involve contentions regarding specific jurisdiction.' Long ago, the United States Supreme Court established the following "minimum contacts" standard that is used to assess the propriety of specific jurisdiction:

[D]ue process requires only that in order to subject a defendant to a [personal] judgment . . ., 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 motions of fair play and substantial justice."6

"Today, `the constitutional touchstone' of the determination whether an exercise of [specific] personal jurisdiction comports with due process `remains whether the defendant purposefully established `minimum contacts' in the forum state. "'' A greater showing of contacts is needed to establish general personal jurisdiction. General jurisdiction requires systematic and continuous contacts.8

1. Minimum Contacts: Conduct by Defendant Purposefully Directed at Forum State

Supreme Court precedent makes it clear that the minimum contacts used to establish personal jurisdiction must be the result of "some 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."9 This "purposeful availment" requirement ensures that a defendant will not be forced to defend a lawsuit in a jurisdiction solely as a result of "random," "fortuitous," or "attenuated" contacts, or as a result of the unilateral activity of the plaintiff or some third person.10 "The `substantial connection' between the defendant and the forum state [that is] necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum state."11

2. More than Product Placement In the Stream of Commerce

The Supreme Court has consistently rejected arguments that a defendant should be subject to suit in a forum state simply because it was foreseeable that some of the defendant's products would travel to or cause injury in that forum. 12 The Court has explained that " the foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there."13

As explained above, the defendant must engage in some conduct that is purposefully directed at the forum state. The Supreme Court has ruled that "a defendant's awareness that the stream of commerce may or will sweep the product into the forum State does not convert the mere act of placing the product into the stream [of commerce] into an act purposefully directed toward the forum State," and thus, "[tlhe placement of a product into the stream of commerce, without more, is not an act of defendant purposefully directed toward the forum State."14

A defendant whose products travel in interstate commerce must engage in some "[a]dditional conduct" that indicates "an intent or purpose to serve the market in the forum State" in order for an assertion of personal jurisdiction to comport with constitutional requirements.15 Actions such as "advertising in the forum State, establishing channels for providing regular advice to customers in the forum State, or marketing the product through a distributor who has agreed to serve as the sales agent in the forum State" will establish the requisite minimum contacts.16

3. "Minimum Contacts" Evaluated in Light of Various Fairness Factors

Once a court has determined that a defendant purposefully established the requisite "minimum contacts" with a forum state, those contacts must be evaluated in light of other factors to determine whether an assertion of personal jurisdiction would comport with traditional notions of "fair play and substantial justice," as required by the International Shoe standard." The Supreme Court has ruled that courts should evaluate the following five factors to determine whether a defendant's "minimum contacts" are a proper predicate for an assertion of personal jurisdiction:

(1) the burden on the defendant;

(2) the forum state's interest in adjudicating the dispute;

(3) the plaintiff's interest in obtaining convenient and effective relief;

(4) the interstate judicial system's interest in efficient resolution of controversies; and

(5) the shared interest of the states in furthering substantive social policies.18

These fairness factors can play an important role in determining the existence of personal jurisdiction. The Supreme Court has made it clear that these factors "may defeat the reasonableness of jurisdiction even if the defendant has purposefully engaged in forum activities."19

To date, the Supreme Court has not addressed the issue of personal jurisdiction arising from Internet use. Since the latter part of 1996, however, lower courts have adjudicated a number of cases in which a plaintiff claimed there was personal jurisdiction over the defendant based upon the defendant's Internet activities.

III.

CAN YOUR WEB SITE EXPOSE YOU TO LITIGATION ALMOST ANYWHERE?

When courts first began to address the issue of personal jurisdiction based on Internet conduct, judges, lawyers, and legal scholars argued about whether a new body of law was required or whether existing personal jurisdiction principles would suffice. Initially, because the nature of the technology was the key consideration in Internet personal jurisdiction inquiries, massive confusion and uncertainty existed. Courts now are more apt to focus on how a party is using the Internet to communicate with and transact business in the forum state when resolving Internet personal jurisdiction issues. As a result, some common themes have emerged.

Generally, the likelihood that a court will exercise personal jurisdiction over a party based upon its Internet conduct is directly proportionate to the nature and quality of the party's commercial activity. Courts have developed a three-category test. The first category includes cases in which a party "actively" uses the Internet to conduct business. In those instances, the Internet conduct is found to provide a basis for personal jurisdiction. Category two, the "middle ground," includes those cases that involve interactive web sites that permit some interaction between the user and the host computer. In these cases, personal jurisdiction issues are resolved by examining the level of interaction and the commercial nature of the information exchanged. Category three, representing the opposite end of the spectrum, consists of cases in which a defendant has "passively" posted information on an Internet web site, thereby making that information available to persons in many forums. Most courts have declined to exercise personal jurisdiction in these types of cases.

While the majority of courts have adopted this three-category test, there continues to be some uncertainty regarding the outcome of Internet based personal jurisdiction disputes. Not all courts have followed the three-category approach, and there are still some decisions which hold that a passive web site creates the "minimum contacts" necessary to assert personal jurisdiction. In fact, there is little binding authority on point. Virtually all of the relevant decisions are from federal district courts, whose rulings other federal district courts need not follow. The Fifth and Ninth Circuits are the only United States Courts of Appeals that have applied the constitutional "minimum contacts" standard to limited Internet activity.20 Moreover, those courts that have adopted the three-category analysis appear to apply it differently. In these decisions, there is no clear definition of what constitutes an interactive web site - which can provide a basis for personal jurisdiction - as opposed to a passive web site that cannot. A brief overview of the case law to date follows.

A. Three-Category Test Used to Resolve Internet Personal Jurisdiction Issues

The three-category test that is now generally used to resolve Internet personal jurisdiction issues was first articulated in Zippo Manufacturing Co. v. Zippo Dot Com., Inc.21 There, the court explained:

[T]he 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 in it is not grounds for the exercise [of] personal jurisdiction .... 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 personal jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site.22

The Zippo three-category test is the only thread of consistency in the Internet personal jurisdiction decisions. Indeed, in their personal jurisdiction analysis, many courts have announced that they are applying the Zippo test.23 Notably, the Fifth Circuit and federal district courts in the Northern, Eastern, Western, and Southern Districts of Texas have adopted this test.24 Moreover, most courts that have addressed Internet personal jurisdiction issues, even if they fail to cite to Zippo, still utilize the three-category test.

But a minority of courts have reached decisions that are inconsistent with the Zippo analysis. These courts have found that a passive web site creates the "minimum contacts" sufficient to support the exercise of personal jurisdiction.

B. The Debate Regarding the Impact of a Passive Web Site

Early on, courts were uncertain of how to treat the technological advancement made possible by the Internet or its effect on personal jurisdiction. With the advent of the Internet, individuals and organizations could suddenly communicate with millions of consumers in distant forums within a matter of seconds, and could transact business with a stroke of a key. Because few people understood the Internet or its uses, courts initially focused on the nature of the new technology rather than simply applying well-established personal jurisdiction rules to each new set of cyberfacts. Accordingly, some of the early case law is inconsistent with the more recent approach to Internet personal jurisdiction issues.

1. Cases Deciding a Passive Web Site May Create "Minimum Contacts"

At least four courts have issued opinions which, at the least, strongly suggest that a passive web site creates the "minimum contacts" with a forum state that are necessary for an exercise of personal jurisdiction.

In Inset Systems, Inc. v. Instruction Set, Inc., the earliest reported case in which a court addressed an Internet jurisdiction dispute, the plaintiff, a Connecticut corporation, alleged that the defendant, a Massachusetts company, used the plaintiff's registered mark on the defendant's Internet web site.25 The Connecticut federal district court, hearing this case, ruled that personal jurisdiction over the defendant company was proper, even though the company had no employees or offices in Connecticut and did not conduct business in Connecticut on a regular basis. According to the court, jurisdiction was proper because the defendant had "directed its advertising activities via the Internet and its toll-free number toward not only the state of Connecticut, but to all states."zb In reaching this conclusion, the court heavily relied upon the fact that, unlike traditional television and radio ads, "advertisements over the Internet are available to Internet users continually, at the stroke of a few [computer] keys."27

In Heroes, Inc. v. Heroes Foundation, a federal district court in the District of Columbia decided it had personal jurisdiction over a New York charitable organization that was sued by a District of Columbia charity for trademark infringement.28 The court concluded that the defendant charity was subject to personal jurisdiction in the District of Columbia because it placed advertisements in the Washington Post, a local newspaper, and maintained a home page on the Internet.29 The defendant's home page posted information about the organization and its members and included an e-mail address to which all questions and comments could be directed. To simplify the collection of donations, the defendant provided a toll-free number on its web site.30

Although the court specifically noted that it was not deciding that the "home page by itself subjects the defendant to personal jurisdiction in the District,"31 the defendant's web site was clearly a key factor in its decision. In "weighing the importance" of the defendant's web site, the court noted that the "home page explicitly solicits contributions, and provides a toll-free telephone number for that purpose" and that "the home page is certainly a sustained contact with the District" because it is "always available."32 The court also cited Inset with apparent approval.33

In Haelon Products, Inc. v. Beso Biological Research, Inc., a federal district court in Louisiana held that a defendant was subject to personal jurisdiction in Louisiana as a result of its Internet web site, toll-free telephone number, and advertisements in four national trade publications.34 The court noted that the facts before it were similar to those present in the Inset decision and was clearly influenced by a view that Internet advertising was more persuasive and intrusive than traditional advertisements.35 The court explained:

[U]mike magazines where advertisements may well be ignored and the magazine itself disposed of quickly and unlike momentary commercials on the television, advertisements over the Internet are available to Internet users continually, 24 hours a day, seven days a week. They are not thrown away and do not disappear.36

Finally, also relying on the Inset decision, a federal court in Virginia reached a similar conclusion in Telco Communications v. An Apple A Day.3' In Telco, the defendant, a Missouri corporation, posted messages on its web site that allegedly defamed the plaintiff, a Virginia corporation.38 The defendant admitted to advertising its firm and soliciting investment-banking assistance via the Internet.39 In exercising jurisdiction over the out-of state defendant, the Virginia court reasoned "[b]ecause they conducted advertising and soliciting over the Internet, which could be accessed by a Virginia resident 24 hours a day," personal jurisdiction was proper.' The court further stated that "posting a Web site advertisement or solicitation constitutes a persistent course of conduct," which justifies the exercise of personal jurisdiction.41

These results have been criticized as representing "the outer limits of the exercise of personal jurisdiction based on the Internet."42

2. Cases Deciding Passive Web Site Did Not Create "Minimum Contacts"

Several courts across the country have decided that a defendant's "passive" use of a web site - in other words, use of a web site to convey information about its business or to advertise its products and services - is insufficient to establish personal jurisdiction.

Both of the federal circuit courts that have addressed the constitutionality of personal jurisdiction based on limited Internet conduct have ruled that an assertion of personal jurisdiction cannot be based on a passive web site alone. In Cybersell, Inc. v. Cybersell, Inc., the Ninth Circuit Court of Appeals attempted to distinguish those district court opinions that suggested a passive web site was a sufficient basis for an exercise of personal jurisdiction. Ruling that personal jurisdiction may not be based solely on the existence of a passive web site, the court explained:

[S]o far as we are aware, no court has ever held that an Internet advertisement alone is sufficient to subject an advertiser to jurisdiction in the plaintiff's home state . . . . Rather, in each, there has been "something more" to indicate that the defendant purposefully (albeit electronically) directed his activity in a substantial way to the forum state.43

The Fifth Circuit Court of Appeals recently reached the same conclusion in Mink v. AAAA Development, LLC, explaining that because the web site at issue could not be classified "as anything more than passive advertisement" it "is not grounds for the exercise of personal jurisdiction."' Indeed, the majority of the courts that have considered the issue likewise have concluded that a passive web site alone is not a sufficient basis for finding personal jurisdiction.45 The four cases described below best illuminate the rationales underlying those decisions.

In Agar Corp. v. Multi-Fluid, Inc., a Texas federal court refused to exercise personal jurisdiction over a Norwegian defendant based on the defendant's alleged marketing of infringing technology on a web site. The court explained:

Information provided by a passive web site does not seek out the customer but merely resides in "cyberspace" waiting to be visited on the initiative of the Internet explorer. A site's sponsor cannot purposefully direct the information to any particular jurisdiction merely through maintenance of a passive web site 46

In McDonough v. Fallon McElligott, Inc., a California federal district court concluded that a defendant's web site cannot by itself establish personal jurisdiction. The court explained: "Because the Web enables easy world-wide access, allowing computer interaction via the web to supply sufficient contacts to establish jurisdiction would eviscerate the personal jurisdiction requirement as it currently exists; the court is not willing to take this step."47

In Bensusan Restaurant Corp v. King, the court refused to exercise personal jurisdiction in a trademark infringement action against a defendant who was operating a web site titled "The Blue Note." The plaintiff owned a famous jazz club in Greenwich Village, New York City named "The Blue Note," while the defendant owned a club in Columbia, Missouri by the same name. The defendant's web site included information about his club, a description and schedule of events, and information about ordering tickets by telephone.48

The New York federal court, which heard the Bensusan case, ruled that an assertion of jurisdiction over the defendant based solely upon his web site would violate constitutional due process guarantees. The court explained:

King has done nothing to purposefully avail himself of the benefits of New York. King, like numerous others, simply created a web site and permitted anyone who could find it to access it. Creating a site, like placing a product into the stream of commerce, may be felt nationwide - or even worldwide - but, without more, it is not an act purposefully directed toward the forum state.49

Similarly, in Hearst Corp. v. Goldberger, a federal district court in New York refused to permit the exercise of jurisdiction over a non-resident lawyer who operated the web site "esqwire.com." The plaintiff claimed that the site infringed its federal registrations relating to "Esquire" magazine. The defendant, however, did not sell, nor contract to sell, any products or services to citizens in the forum state.50

The court explained that a finding of personal jurisdiction under such circumstances "would mean that there would be nationwide - indeed, worldwide - personal jurisdiction over anyone and everyone who establishes an Internet web site," and as a result, "every plaintiff could sue in plaintiff's home court every out-of state defendant who established an Internet web site."51 The court concluded that "[s]uch nationwide jurisdiction is not consistent with traditional personal jurisdiction case law" and declined "to reach such a far-reaching result in the absence of a Congressional enactment of Internet specific trademark infringement personal jurisdiction legislation.'52

Although the majority of the courts that have addressed Internet personal jurisdiction issues have concluded that maintaining a "passive" web site alone will not subject you to litigation in all fifty states, there is still considerable debate about what distinguishes a passive web site - thereby exempting you from an exercise of personal jurisdiction under Zippo - from an interactive web site - which indeed may subject you to personal jurisdiction.

C. Doing Business Over the Internet Creates Basis for Personal Jurisdiction

Courts have consistently refused to allow defendant corporations to hide behind the cloak of the Internet when transacting business over the World Wide Web. If the defendant is actually consummating business transactions over the Internet or maintaining continuous relationships with persons in the forum state via the web, there is a very high likelihood that a court will exercise personal jurisdiction. Most courts that have addressed the Internet personal jurisdiction issue early on concluded that an interactive web site justifies an exercise of personal jurisdiction. The problem is that these decisions fail to establish a definitive distinction between interactive web sites and passive web sites.

In addition, a number of recent decisions have made it clear that merely categorizing a site as passive or interactive may not be the end of a court's analysis. In other words, the mere existence of an interactive web site may not be enough to warrant an exercise of personal jurisdiction. Instead, when resolving personal jurisdiction issues, courts are now beginning to examine whether an interactive site has actually been used to interact with forum residents. Ultimately, a court's decision regarding the exercise of personal jurisdiction will turn on the facts of each particular case. Despite the uncertainty as to the level of Internet activity sufficient to invoke personal jurisdiction, one thing is clear - the greater the interactivity between you and forum residents via the web, the more willing a court will be to exercise personal jurisdiction over you any place that a dispute arises.

It is fairly clear that entering into on-line contracts with customers or selling your products or services through your web site is sufficient to invoke jurisdiction in any forum where a dispute may arise. For example, in CompuServe v. Patterson,53 the Sixth Circuit exercised personal jurisdiction based on contacts between a Texas resident and CompuServe, an on-line computer service provider based in Ohio. The defendant entered into a shareware agreement with CompuServe, agreeing to upload software to the CompuServe system in Ohio. CompuServe was to remit any fees collected from end users to the defendant.54 This agreement contained a forum selection clause that named Ohio as the governing jurisdiction. Over a significant period of time, the defendant continued to market various programs on the CompuServe system, to upload programs, and collect fees for their use. Subsequently, the defendant threatened CompuServe with a suit for trademark infringement, and CompuServe filed for declaratory relief in Ohio. The court held that personal jurisdiction in Ohio was clear based upon the defendant's longstanding and continuous contacts with that forum state, even though those contacts had largely been electronic.55

In Zippo, the court found the defendant was "[clearly] doing business over the Internet."56 It recognized that merely posting information on an Internet web site that is accessible to users in foreign jurisdictions, without more, is not sufficient grounds for the exercise of personal jurisdiction. But the court concluded that the defendant's activity went far beyond mere posting. It was a news service company, that maintained a web site on the Internet. The site contained information about the company, advertisements, and an application for its Internet news service. Those applicants who completed an on-line contract were required to pay with a credit card over the Internet or by phone. The applicant was then given a password that permitted the downloading of news group messages. The defendant entered into contracts with nearly 3,000 residents of the forum state and collected fees accordingly. Additionally, the defendant entered into seven agreements with Internet access providers in the forum state. The court concluded that such extensive activity in the forum state warranted the exercise of personal jurisdiction.57

Similarly, in Park Inns International, Inc. v. Pacific Plaza Hotels, Inc., a federal court in Arizona exercised personal jurisdiction over California defendants who advertised their hotel on two web sites.58 The defendants' web pages listed the address, phone number, and fax number of the hotel, described the hotel's amenities, and provided web browsers with an e-mail address and tollfree number to make reservations. Moreover, the web site included an on-line reservation form that customers could use to reserve rooms quickly and efficiently without the hassle of an intermediary. The court found the extensive interactive nature of the web site to be sufficient for personal jurisdiction.59 "Defendants' sites permit the consumer to create, amend, or cancel reservations over the Internet .... Further,... there exists evidence here that at least seven persons not only hit the Best Western web site but made reservations for stays at the Defendants' hotel through that site."' Because the defendants' solicitation resulted in business transactions with Arizona residents, the court found there was purposeful availment sufficient to justify exercise of personal jurisdiction over the defendants.61

Nevertheless, there appears to be considerable uncertainty about what distinguishes an interactive web site from one that is merely passive. For example, in Cybersell, the Ninth Circuit ruled that e-mail capability on an otherwise informational web site is not enough to establish personal jurisdiction. It suggested, however, that the presence of a toll-free telephone number on a web site may alter the constitutional calculus and render an assertion of personal jurisdiction proper.62 In contrast, in Mink, the Fifth Circuit ruled that a web site was passive, and thus not a sufficient ground for an exercise of personal jurisdiction, even though it "provides an e-mail address that permits consumers to interact with the company" and lists a toll free telephone number.63 The lower courts have reached similar inconsistent results regarding the distinctions between passive and interactive web sites.`

The treatment of the court's decision in Maritz, Inc. v. Cybergold, Inc.bs is perhaps the best example of the uncertainty that exists. There, a Missouri company sued a California web site operator for trademark infringement.bb The web site provided information about the company and solicited the names and areas of interest of Internet users who wanted to be placed on its mailing list. The defendant had not actually started its service but planned to provide each individual user with a personal electronic mailbox through which the defendant could forward advertisements that corresponded with the user's selected interests.b' A federal district court in Missouri concluded that it had personal jurisdiction over the defendant based on this Internet web site.68 The court noted that the defendant "has obtained the website for the purpose of, and in anticipation that, Internet users, searching the Internet for websites, will access [the defendant's] website and eventually sign up on [the defendant's] mailing list."69 The court held that because the defendant "has consciously decided to transmit advertising information to all Internet users, knowing that such information will be transmitted globally," it had personal jurisdiction over the defendant in Missouri.70

The courts cannot even agree on whether the Maritz web site was passive or interactive. Some subsequent court decisions have concluded that the web site in Maritz was interactive and cited Maritz as an example of a case where an interactive web site justified an exercise of personal jurisdiction.71 Others have cited Maritz as holding that a passive web site alone is enough to support personal jurisdiction.72

Moreover, it is now becoming clear that courts may do more than determine whether a web site is interactive when resolving Internet personal jurisdiction disputes. Some courts have recently concluded that an interactive web site that has not actually been used to interact with forum residents cannot provide a sufficient basis for the exercise of personal jurisdiction over the web site owner. For example, in Millennium Enterprises, Inc. v. Millennium Music, L.P.,73 the court addressed the personal jurisdiction implications of a defendant's web site that could be used to purchase compact discs, join a discount club and request franchising information. It concluded that the site at issue was interactive but was not a sufficient basis for an exercise of personal jurisdiction.74 The court explained:

On its face, the site would appear to suffice for personal jurisdiction under the middle category in Zippo; the level of potential interactivity while not necessarily high, is not insubstantial. Further, the potential exchange of information can be commercial in nature. However, the court finds 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.75

In this court's view, "[t]he existence of a web site, whether passive or interactive, does not rise to the requisite level of conduct" because "[p]ublishing a web site requires no `deliberate' action within the forum state."76 Thus, an assertion of personal jurisdiction would not be proper "[u]ntil transactions with [forum] residents are consummated through defendants' web site...."77

Similarly, in Origin Instruments Corp. v. Adaptive Computer Systems, Inc.,78 the court ruled that an assertion of personal jurisdiction could not be premised on an interactive web site when "there is no evidence in the record to establish that Defendant has been interacting with anyone in the [forum] through its web site."79 The court concluded "[p]ersonal jurisdiction should not be premised on the mere possibility that a Defendant may be able to do business with [forum residents] over its web site, with nothing more; rather, Plaintiff must show that Defendant has `purposefully availed itself' of the benefits of the forum state and its laws."80

Significantly, each of the courts that has addressed the issue has ruled that the mere availability of an interactive web site is not a sufficient basis for an exercise of general personal jurisdiction, which, of course, requires systematic and continuous contacts.81 In Molnlycke Health Care AB v. Dumex Medical Surgical Products,82 the court explained:

The court ... holds that the establishment of a website through which customers can order products does not, on its own, suffice to establish general jurisdiction. To hold that the possibility of ordering product from a website establishes general jurisdiction would effectively hold that any corporation with such a website is subject to general jurisdiction in every state. The court is not willing to take such a step.83

The uncertainty about the boundaries between passive and interactive web sites and the implications of a finding that a given site is interactive will likely continue for some time.

D. Sending and Receiving E-Mail: Basis for Personal Jurisdiction

Although the case law dealing exclusively with e-mail contacts is scarce, one basic rule can be gleaned from these decisions. In order to determine whether such communications create personal jurisdiction, courts normally look to the nature and content of the e-mail messages and the quantity of messages exchanged. Although a single e-mail purchase order is probably insufficient to confer jurisdiction, several messages that contain a solicitation to enter into an extended business relationship or a message that is the key to formation of a contract may contribute to a finding of jurisdiction.

For example, in Resuscitation Technologies, Inc. v. Continental Health Care Corp.84 in determining whether to exercise personal jurisdiction, the court found that the number and quality of the e-mail contacts between a plaintiff and a defendant must be examined. Because the messages were numerous and continuous over a period of months, the court leaned toward exercising jurisdiction. The purpose of the e-mail communication was to unite the plaintiff and the defendant in a joint venture to raise capital for the production of certain medical devices. Upon discovering the content of the messages, the court's first inclination to exercise jurisdiction was quickly confirmed.85

Similarly, in Cody v. Ward,86 the defendant made numerous phone calls and sent numerous e-mail messages to the plaintiff, by which he transmitted information on certain stocks. Subsequently, when the plaintiff brought suit against the defendant for fraudulent misrepresentations regarding the stocks' performance, the court in the plaintiff's home state exercised jurisdiction. It reasoned that jurisdiction was proper based on the content of the e-mail messages and the fact that there were approximately fifteen messages conveyed.87

A Court of Appeals in California has determined that use of e-mail between two people, one in New York, the other in California, is sufficient to establish the requisite minimum contacts necessary to permit a California court to exercise personal jurisdiction over the New York defendant. In Hall v. LaRonde,88 the plaintiff, a software developer in California, sued a New York defendant for failure to pay royalties on software marketed for the defendant. The parties negotiated a development agreement though e-mail. Subsequently, the parties agreed upon modifications to the software by communicating over the Internet. The California court found that despite the novelty of the issue of personal jurisdiction as applied to the Internet, there was no reason why the requisite minimum contacts could not be electronic, thus leading to a finding of jurisdiction.89

In Hearst Corp, v. Goldberger,' the court took a slightly different approach. Stating that e-mail messages are analogous to letters or telephone communications, the court held that mere communication through e-mail is insufficient to establish jurisdiction. Generally, courts have found that isolated phone calls or mail correspondence to the forum state are not, by themselves, sufficient contacts to support jurisdiction.9' Thus, the court reasoned, it would similarly be improper to exercise jurisdiction over an individual based solely on his e-mail contacts with the forum state.92

In sum, the cases addressing personal jurisdiction based on e-mail contacts are few and far between. They rarely involve e-mail contact alone. Rather, a party often engages in business through a series of e-mail messages as well as telephone calls. Generally, personal jurisdiction cannot be exercised over an individual for merely making isolated phone calls or sending mail into a particular state. Regardless, courts will normally examine both the nature and quality of e-mail messages. The more business activity that is conducted within the forum state and the more messages that are sent to citizens in the forum state, the more likely a court is to exercise personal jurisdiction.

IV.

AVOIDING LITIGATION IN INCONVENIENT FORUMS

A. Tailor Your Business Activity to Avoid Litigation in Distant Formis

It is impossible to predict with any certainty how courts will decide issues of Internet jurisdiction arising from different fact scenarios. But a web site owner can take several steps to reduce the risk of exposure to litigation in distant, inconvenient forums. One of the greatest benefits of the Internet is that the average person can participate with only a small amount of money. Unfortunately, utilizing the following suggestions for minimizing the risk of liability may simultaneously minimize the benefits of Internet use. After weighing the risks of litigation, business needs, and the benefits of Internet use, only you can decide on the best option.

1. Retain passive Web Site

As discussed above, the more interactive a web site, the more likely a court is to exercise personal jurisdiction. Thus, by merely advertising products or services and providing other product-related information, the web site will likely be categorized as "passive;" such a conclusion will generally preclude an exercise of jurisdiction. The chance of a court finding that you directed your actions toward the forum state is substantially lessened when there is no evidence of purposeful interaction with a visitor from a particular forum.

2. Limit Access To Your Web Site

Although screening or blocking of Internet web sites is virtually impossible, you may want to utilize a series of request-and-reply sequences to weed out users from jurisdictions where you do not want to be subject to litigation. For example, upon accessing a web page, a visitor may be asked to input the location of the state in which he physically resides. If his reply does not correspond with a state "acceptable" to the web site owner, then the visitor attempting to view the page may be denied access. Alternatively, you may utilize a process whereby customers must first call a toll free number to set up an on-line ordering account and decline to provide the customer ID and password necessary to access the system to potential customers from undesirable jurisdictions. One court has concluded that such a process is an effective way to avoid doing business in a given forum over an interactive web site.93

3. Disclaim Purposeful Availment.

Even if residents of other states are permitted to access your web site, you could suggest that the site is only for the benefit of in-state residents by using disclaimers such as "This site is intended to provide information, products, and services to Texas residents only." At least one court has concluded that such a disclaimer on a web site demonstrates that the defendant was not using the site to seek clients in the forum state and thus was not subject to personal jurisdiction there.94

4. Utilize "Clickwrap" Agreement

A web site owner may use an interactive "clickwrap" agreement that includes choice of venue and choice of law clauses that a consumer must accept before being allowed to purchase any products. Consumers can indicate their assent to the terms of a "clickwrap" agreement by "clicking" on an acceptance button on the web site. If the consumer does not agree to the contract terms, the web site will not accept the consumer's order. One court has stated that such "clickwrap" agreements can be used to limit a web site owner's personal jurisdiction.95

The choice of venue clause would explicitly warn web site visitors that any potential dispute would be litigated in a specified forum. Although they would not affect the situs of litigation directly, provisions in a contract that dictate what state's law will govern the transaction may indirectly support the exercise of jurisdiction in that state. A choice of law clause reaffirms a party's "deliberate affiliation with the forum state and the reasonable foreseeability of possible litigation there."96

5. Decline Business From Distant Forums

Finally, the web site owner may simply decline business from remote jurisdictions. There is no better way to advertise and sell products on the Internet and still control the location of potential litigation than to merely accept business from those forums where you are willing to defend yourself and decline business from those forums where you are unwilling to defend yourself. While these suggestions may be less than satisfying, current case law makes it clear that web site operators who wish to limit their exposure to litigation should publish globally, but interact locally because the "minimum contacts" standard is quite easy to satisfy in the cyberworld.

B. Forum Non Conveniens Dismissal or Transfer May be Available

Even when a court has personal jurisdiction over a non-resident defendant, a possibility for avoiding litigation in a distant forum exists. Pursuant to the common law doctrine of forum non conveniens, a state court may dismiss an action because the plaintiff's chosen forum is inconvenient, even if the court has personal jurisdiction over the defendant. The forum non conveniens doctrine is a flexible one, and the Supreme Court has cautioned that no one factor can be emphasized over another.9' When a party invokes the forum non conveniens doctrine, a court will weigh multiple factors relating to fairness and convenience based on the particular facts of the case. The party moving for a forum non conveniens dismissal must demonstrate: 1) the existence of an adequate alternate forum; and 2) that the balance of relevant private and public interest factors favor dismissal.98

The threshold inquiry is whether there is an "adequate" alternative forum available for adjudication of the dispute. If there is no adequate alternative, the court has no discretion to dismiss the case. Essentially, in determining the appropriateness of an alternative, courts normally focus solely on availabillty.99 Reasons such as the alternative forum having less favorable substantive or procedural law are insufficient for denying application of the forum non conveniens doctrine. Ordinarily, the alternative forum will be deemed both adequate and available if the defendant is amenable to process in the other jurisdiction.100

Once a court has determined that an alternative forum is adequate, "it must proceed to balance public and private interest to determine whether the convenience of the parties and the ends of justice would best be served by dismissing the action."101 The private interest factors include the following:

1) the relative ease of access to sources of proof;

2) the relative availability of compulsory process to secure the attendance of unwilling witnesses;

3) the cost of obtaining the attendance of willing witnesses;

4) whether a view of the premises at issue in the action is necessary;

5) the enforceability of judgments; and

6) all other factors that render trial of the case expeditious and inexpensive, including the defendant's ability to implead a necessary party, the cost of obtaining evidence, and the financial hardship incurred by the plaintiff if the action is brought in an alternative forum. 102

In addition to the private interest factors, the following public interest factors are also considered:

1) administrative difficulties flowing from court congestion;

2)local interest in deciding local controversies;

3) imposition of jury duty on the citizens of a forum that is unrelated to the litigation;

4) interest in having a case litigated in a forum familiar with the governing law; and

5) avoidance of unnecessary conflicts of law questions.103

A defendant sued in federal court may attempt to avoid distant, inconvenient litigation by seeking to have the action against it transferred to a more convenient federal court pursuant to 28 (sec)U.S.C.A. 1404(a)411 It provides: "for the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought."

The factors to be considered in deciding whether to transfer an action under Section 1404(a) are generally the same as those that are used to determine whether to dismiss an action under the common law forum non conveniens doctrine. However, a court has wider discretion to transfer under Section 1404(a) than it has to dismiss based on the forum non conveniens doctrine.105 Similarly, a lesser showing of inconvenience is required for transfer than is required for dismissal.16 Consequently, the plaintiff's choice of forum is given less weight under Section 1404(a) than it receives under forum non conveniens analysis.

V.

CONCLUSION

The law of Internet jurisdiction remains somewhat indefinite. What does this mean to you and your potential for nationwide, or even worldwide, liability? It now appears there is less danger of being hauled into a distant forum merely for maintaining an informational web site. But, as you begin to solicit business over the Internet, to take orders, and to sell products to out-of-state persons who access your web site, you are increasing your risk of exposure to litigation in any forum where a dispute may arise. Additionally, as your contacts with citizens of other states increase, and the nature of those contacts becomes more commercial, there is a greater likelihood that a court will use those Internet contacts as the basis for exercising jurisdiction. The good news is that the decisions reached by courts to date provide you with a good framework for planning your Internet activity so as to reduce, or perhaps eliminate, your potential for liability in far off forums. Finally, even if your Internet activity leaves you "caught in the web," there are legal mechanisms you can use to extricate yourself.

1When a federal court is hearing a matter based on "diversity of citizenship," in other words, because the plaintiff and the defendant are from different states, it will examine the long-arm statute of the state in which it sits. A federal court that is asked to resolve a question created by federal law will first look to the particular law at issue. If that federal law contains no relevant personal jurisdiction provisions, the federal court will then examine the long-arm statute of the state in which It SItS. See 4 CHARLES ALAN WRIGHT BL ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE 1069 (2d ed. 1987); 16 JAMES WM. MOORE ET. AL., MOORE'S FEDERAL PRACTICE 108.60[2] (3d ed. 1997); see generally G.W. Foster, Judicial Economy; Fairness and Convenience of Place of Trial: Long Arm Jurisdiction in District Courts, 47 F.R.D. 73 ( 1968).

2See, e.g., Asahi Metal Indus. v. Superior Court, 480 U.S. 102, 106 ( 1987); Francosteel Corp. v. M/V Charm, 19 F.3d 624, 627 (11`" Cir. 1994); Ruston Gas Turbines, Inc. v. Donaldson Co., 9 F.3d 415, 418 (5th Cir. 1993); Pawlucz v. Global Upholstery Co., 854 F. Supp. 364, 366 (E.D. Pa. 1994); MCA Records Inc. v. Highland Music Inc., 844 F. Supp. 1201, 1203 (M.D. Tenn. 1993).

'The Fifth Amendment contains a similar due process guarantee that federal courts use to assess the propriety of personal jurisdiction when the cause of action at issue arises under federal law. See Dakota Indus., Inc. v. Dakota Sportswear, Inc., 946 F.2d 1384, 1389 n.2 (8th Cir. 1991 ).

See Helicopteros Nacionales De Colombia, S.A. v. Hall, 466 U.S. 408, 414 nn. 8-9 (1984).

SSee Coastal Video Comms. Corp. v. Staywell Corp., 57 F. Supp. 2d 562, 570 n.6 (E.D. Va. 1999) ("[t]he vast majority of Internet-based personal jurisdiction cases involve specific jurisdiction").

6International Shoe Co. v. Washington, 326 U.S. 310, 316 ( 1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)).

'Asahi, 480 U.S. at 108-09 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 ( 1985)).

BHelicopteros, 466 U.S. at 414-16.

9Burger King, 471 U.S. at 475 (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)); see also Asahi, 480 U.S. at 109.

"Burger King, 471 U.S. at 475.

"Asahi, 480 U.S. at 112 (emphasis in original); see also id. at 109; Burger King, 471 U.S. at 475.

'2See Asahi, 480 U.S. at 112-13; Burger King, 471 U.S. at 474-75; World-Wide Volkswagen Corp. v, Woodson, 444 U.S. 286, 295-98 (1980).

"World-Wide Volkswagen, 444 U.S. at 297.

"aAsahi, 480 U.S. at 112. However, prior to Asahi, the Supreme Court had noted that a 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. " World-Wide Volkswagen, 444 U.S. at 297-98 (emphasis added). The significance of this observation in World-Wide Volkswagen is unclear given the Asahi ruling.

'SAsahi, 480 U.S. at 112. 'sld.

"See Burger King, 471 U.S. at 476.

'BAsahi, 480 U.S. at 113; Burger King, 471 U.S. at 477; World-Wide Volkswagen, 444 U.S. at 292.

19Burger King, 471 U.S. at 477-78; see also Asahi, 480 U.S. at 113-14.

2"See Mink v. AAA Development LLC, 190 F.3d 333 (5th Cir. 1999); Cybersell, Inc. v. Cybersell, Inc. 130 F.3d 414 (9th Cir. 1997). The Second Circuit also addressed personal jurisdiction in the context of limited Internet activity in Bensusan Restaurant Corp. v. King, 44 U.S.P.Q.2d 1051 (2d Cir. 1997). However, there the Second Circuit decided that New York's long-arm statute did not authorize personal jurisdiction and declined to address the constitutional issue. Id. at 1052-53. Similarly, in Graphic Controls Corp. v. Utah Medical Products, Inc., 149 F.3d 1382, 1385-88 (Fed. Cir. 1998), the Federal Circuit ruled that limited Internet activities did not meet the standards set forth in New York's long-arm statute.

21952 F. Supp. 1119 (W.D. Pa. 1997). 2Id. at 1124 (citations omitted).

Z'See , e.g., Patriot Sys., Inc. v. C-Cubed Corp., 21 F. Supp.2d 1318, 1324 (D. Utah 1998); SF Hotel Co., L.P. v. Energy Inv., Inc., 985 F. Supp. 1032, 1034 (D. Kan. 1997); Transcraft Corp. v. Doonan Trailer Corp., No. 97 C 4943, 1997 WL 733905, at *8 (N.D. III. Nov. 17, 1997); Weber v. Jolly Hotels, 977 F. Supp. 327, 333 (D.N.J. 1997).

z4See Mink, 190 F.3d at 336; Fix My PC v. N.F.N. Assocs., No. 3:98-CV-0709-L, 1999 WL 184130, at *3 (N.D. Tex. March 26, 1999); Thompson v. Honda-Lopez, Inc., 998 F. Supp. 738, 742-43 (W.D. Tex. 1998); Mieczkowski v. Masco Corp., 997 F. Supp. 782, 786 (E.D. Tex. 1998); Agar Corp. Inc. v. Multi-Fluid Inc., 45 U.S.P.Q.2d 1444, 1447-48 (S.D. Tex. 1997).

X937 F. Supp. 161, 162-63 (D. Conn. 1996). zsld. at 162-63, 165.

z'Id. at 163; see also id. at 164-65.

958 F. Sub. 1 (D.D.C. 1996). 2Id. at 3-5.

3*Id. at 4.

3'1d. at 5. The court noted that it need not decide this issue because an advertisement for the defendant charity also appeared in the Washington Post, a local paper. Id.

32jd.

13 See id. at 4-5.

343 U.S.P.Q.2d 1672, 1676 (E.D. La. 1997). Notably, the court found that the defendant was subject to general jurisdiction in Louisiana as a result of those activities. As noted earlier a defendant can be found to be subject to general jurisdiction only when it has systematic and continuous contacts with a forum state. See supra note 8 and accompanying text.

ajd. It 1673. mId.

3797? F. Strp 404 rD. Va., i9r:

3Id. at 405. '9Id. at 406. '1d. at 407. 41Id.

azMieczkowski, 997 F. Supp. at 787 (quoting Zippo, 952 F. Supp. at 1125); see also Transcraft, 1997 WL 733905, at *9 (criticizing those decisions that allow personal jurisdiction for web page advertisements with toll free numbers as "opinions (that] are fewer in number and less wellreasoned").

"130 F.3d 414, 418-19 (9th Cir. 1997). 4190 F.3d 333, 336-37 (5th Cir. 1999).

'sSee Barrett v. Catacombs Press, No. 99-736, 1999 WL 213356, at *8 (E.D. Pa. April 12, 1999); Fix My PC, 1999 WL 184130, at *3 - *4; Atlantech Distribution, Inc. v. Credit Gen. Ins. Co., 30 F. Supp.2d 534, 536-37 (D. Md. 1998); American Home Care Fed'n, Inc. v. Paragon Scientific Corp., 27 F. Supp.2d 109, 113-14 (D. Conn. 1998); Patriot Sys., 21 F. Supp.2d at 1324; Blackburn v. Walker Oriental Rug Galleries, Inc. 999 F. Supp. 636, 639-40 (E.D. Pa. 1998); Fernandez v. McDaniels Controls, Inc., 999 F. Supp. 1365, 1368 (D. Haw. 1998); Green v. William Mason & Co., 996 F. Supp. 394, 398-99 (D.N.J. 1998); SF Hotel Co., 985 F. Supp. at 1034-36; Transcraft, 1997 WL 733905, at *8 - * 10; Weber, 977 F. Supp. at 333-34; Agar Corp., 45 U.S.P.Q.2d at 1447-48; Graphic Controls Corp. v. Utah Medical Products, Inc., No. 96-CV0459E(F), 1997 WL 276232, at *3 (W.D.N.Y. 1997), aff d, 149 F.3d 1382 (Fed. Cir. 1998); Hearst Corp. v. Goldberger, No. 96 Civ 3620, 1997 WL 97097, at *2 - *3 (S.D.N.Y. Feb. 26, 1997); Bensusan Restaurant Corp. v. King, 40 U.S.P.Q.2d 1519, 1523 (S.D.N.Y. 1996), aff"d, 44 U.S.P.Q.2d 1051 (2d Cir. 1997); McDonough v. Fallon McElligott, Inc., 40 U.S.P.Q.2d 1826, 1828 (S.D. Cal. 1996).

^*45 U.S.P.Q.2d at 1447-48. "40 U.S.P.Q.2d at 1828. ^*40 U.S.P.Q.2d at 1520.

49/d. at 1523. The court also ruled that personal jurisdiction was improper under New York's long-arm statute. See id. at 1521-23. The Second Circuit agreed that New York's long-arm statute did not authorize jurisdiction and affirmed on this basis without addressing the constitutional issue. Bensusan, 44 U.S.P.Q.2d at 1052-53.

1997 WL 97097, at *2-3. s'Id. at *1, *20.

szld.

5389 F.3d 1257 (6th Cir. 1996).

s"CompuServe is a computer services provider that supplies programs to its subscribers. If the computer software product is provided by a third party, via CompuServe, for downloading by the end user, the software is referred to as "shareware." CompuServe then keeps a portion of the shareware fee and remits the remainder to the creator of the software. Id. at 1260.

ssld. at 1260-61; see also American Network, Inc. v. Access America/Connect Atlanta, Inc., No. 96 Civ. 6823, 1997 WL 466507 (S.D.N.Y. Aug. 14, 1997) (subjecting defendant to personal jurisdiction where defendant advertised product on Internet, entered into written agreement with citizens of forum state, and subsequently mailed packages to those citizens).

se 952 F. Supp. at 1125.

5'1d. at 1121, 1124-26.

585 F. Supp. 2d 762, 764 (D. Ariz. 1998). sold.

60Id. 61Id. 62See 130 F.3d at 419. 63190 F.3d at 336-37.

eaSome have ruled e-mail capability on a web site is not enough to support an exercise of personal jurisdiction. See S. Morantz, Inc. v. Hang & Shine Ultrasonics, Inc., No. Civ. A992640, 1999 WL 1240949, at *4 (E.D. Pa. Dec. 20, 1999); Brown v. Geha-Werke Gmbh, 69 F. Supp.2d 770, 777 (D.S.C. 1999); Blackburn, 999 F. Supp. at 639; Agar, 45 U.S.P.Q.2d at 1447. Others have concluded that e-mail capability transforms a web site into one that is interactive and therefore supports an exercise of personal jurisdiction. See Blumenthal v. Drudge, 992 F. Supp. 44, 56 (D.D.C. 1998); Transcraft, 1997 WL 733905, at *9; Hasbro Inc. v. Clue Computing Inc., 45 U.S.P.Q.2d 1170, 1178 (D. Mass. 1997).

*47 F. Supp.1328 (ED. Mo.1996): "Id. at 1330.

67?Id.

6Id. at 1331-34. 6Id. at 1333. '1d.

"See, e.g., Cybersell, 130 F.3d at 418; Blumenthal, 992 F. Supp. at 55; SF Hotel Co., 985 F. Supp. at 1034.

'zSee, e.g., Hasbro, 45 U.S.P.Q.2d at 1174-75, 1178-79.

?333 F. Supp.2d 907, 920 (D. Or. 1999). "Id. at 920-23.

'51d. at 921.

'61d. at 922. The court explained that "the user," rather than the web site owner, "must take affirmative action to access either a passive or interactive web site." Id.

"Id. at 923.

'BNo. 397CV2595-L, 1999 WL 76794 (N.D. Tex. Feb. 3, 1999). 79Id. at *3 - *4

80Id. at *4.

"See supra note 8 and acomvanyingt text

8264 F. Supp.2d 448 (E.D. Pa. 1999); see also Coastal Video Comms. Corp. v. Staywell Corp., 59 F. Supp.2d 562, 571-72 (E.D. Va. 1999); ESAB Group, Inc. v. Centricut LLC, 34 F. Supp.2d 323, 329-31 (D.S.C. 1999).

gild. at 451.

g^No. IP 96-1457-C-M/S, 1997 WL 148567 (S.D. Ind. Mar. 24, 1997).

esld., at *6.

X954 F. Supp. 43, 46 (D. Conn. 1997). 8'1d. at 47.

aaNo. B 107423, 1997 Cal. Dist. App. LEXIS 633 (Cal. Dist. Ct. App., Aug. 7, 1997). a9ld., at *7.

90 1997 WL 97097, at * 12 - * 13.

v'Id. at * 12. See also Far West Capital, Inc. v. Towne, 46 F.3d 1071, 1077 ( IOth Cir. 1995) (isolated phone call is insufficient basis for personal jurisdiction).

9zHearst, 1997 WL 97097, at * 12 - * 13; but see EDIAS Software v. Basis Int'l, Ltd., 947 F. Supp. 413, 419 (D. Ariz. 1996) (exercising jurisdiction based in part on the observation that email does not differ substantially from other recognizable forms of communication).

9'See ESAB Group, 34 F. Supp.2d at 327, 330.

9'See Desktop Techs., Inc. v. Colorworks Reprod. & Design, Inc., No. 98-5029, 1999 WL 98572, at *1, *6 (E.D. Pa. Feb. 25, 1999).

95See Stomp, Inc. v. Neato, LLC, 61 F. Supp. 2d 1074, 1080-81 (C.D. Cal. 1999).

9eBurger King, 471 U.S. at 482; but see Thompson, 998 F. Supp. at 744-45 (ruling that a choice of law clause which states that "disputes shall be governed by the laws of the State of California and shall be resolved exclusively by final and binding arbitration in California" by "no means requires, nor does it even suggest, that a lawsuit must be filed in California").

9'Scottish Air Int'l v. British Caledonian Group, 81 F.3d 1224, 1234-35 (2d Cir. 1996); Howe v. Goldcorp Investments, 946 F.2d 944, 950 (1'* Cir. 1991); Wilson v. Humphreys Ltd., 916 F.2d 1239, 1246 (7th Cir. 1991 ).

Piper Aircraft Co. v. Reyno, 454 U.S. 235, 249 (1981).

9Seguros Comercial Americas S.A. de C.V. v. American President Lines, 910 F. Supp. 1235, 1244 (S.D. Tex. 1995); see also Friends For All Children v. Lockheed Aircraft Corp., 717 F.2d 602, 607 (D.C. Cir. 1983).

'Piper, 454 U.S. at 254 n.22.

''Murray v. British Broad. Corp., 81 F.3d 287, 293 (2d Cir. 1996); see also Creative Tech. v. Aztech Sys. PTE, 61 F.3d 696, 703 (9th Cir. 1995).

0ozpiper, 454 U.S. at 241 n.6; Gulf Oil Co. v. Gilbert, 330 U.S. 501, 508 (1947). '3Piper, 454 U.S. at 241 n.6; Gulf Oil, 330 U.S. at 508-09.

''Since Section 1404(a) was adopted, federal courts have relied on this statutory provision to transfer inconvenient actions rather than ordering dismissal on forum non conveniens grounds. Forum non conveniens dismissals in federal court are reserved for those rare occasions when a foreign country or a state court provides a more convenient forum. See In re Joint E & S Dist. Asbestos Litig., 22 F.3d 755, 761 (7th Cir. 1994), cert denied, 116 S. Ct. 2526 (1996).

"osDecker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986); Bacik v. Peek, 888 F. Supp. 1405, 1414 n.3 (N.D. Ohio 1993).

'6Piper, 454 U.S. at 253; see also Norwood v. Kirkpatrick, 349 U.S. 29, 32 (1955).

VERONICA SMITH LEWIS

ADITI DRAVID

Veronica Smith Lewis is a 1986 graduate of the Harvard Law School. She obtained a B.S. in Chemical Engineering from the Massachusetts Institute of Technology in 1983. She is presently a partner in the law firm of Thompson & Knight, LLP, based in Dallas, Texas. Prior to joining Thompson & Knight, she was associated with Cravath, Swaine & Moore in New York, New York and Lowenstein Sandler in Roseland, New Jersey.

Aditi Dravid graduated from the University of Oklahoma College of Law, with honors, in 1997. She received a B.S. in Business Administration from Washington University in St. Louis in 1993. She has been associated with the law firm of Thompson & Knight, LLP, since 1997.

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