Computer and Internet Law

Earlier this week, the Ninth Circuit issued a decision in Boschetto v. Hansing et al., No. 06-16595, 2008 WL 3852676 (9th Cir. Aug. 20, 2008), pertaining to the courts’ exercise of personal jurisdiction over out-of-state eBay sellers (i.e., whether an out-of-state eBay seller may be sued in a particular court). [Decision]

In Boschetto, the plaintiff (a California resident) purchased an automobile on eBay from an out-of-state seller. When the automobile arrived, the plaintiff discovered several purported deficiencies, and brought an action against the seller in the Northern District of California.

The district court dismissed the action for lack of personal jurisdiction. The Ninth Circuit affirmed the dismissal, and held that the plaintiff had failed to establish the first element of jurisdiction: namely, that the defendants had purposely availed themselves of the privilege of conducting business in California. The Ninth Circuit also declined to apply the Cybersell sliding scale analysis (which looks at the nature and quality of the defendants’ Internet conduct), since such analysis would have been directed toward eBay rather than the defendants.

However, as a cautionary note, the Ninth Circuit did not rule out personal jurisdiction for all out-of-state eBay sellers. Rather, it emphasized these sellers’ “one-shot” contact with California (the single eBay item and the contract thereon), and noted that there was no evidence or allegation that the sellers’ eBay posting was part of broader e-commerce activity. It acknowledged other legal authorities holding that regular eBay sellers “using the platform as a broader vehicle for commercial activity” (e.g., ‘power sellers’) may be subject to personal jurisdiction.