Boschetto v. Hansing

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL BOSCHETTO, 
Plaintiff-Appellant,
v. No. 06-16595
JEFFREY D. HANSING; FRANK-  D.C. No.
CV-06-01390-VRW
BOUCHER CHRYSLER DODGE-JEEP;
GORDIE BOUCHER FORD; BOUCHER OPINION
AUTOMOTIVE GROUP,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Vaughn R. Walker, District Judge, Presiding
Argued and Submitted
May 14, 2008—San Francisco, California
Filed August 20, 2008
Before: Betty B. Fletcher and Pamela Ann Rymer,
Circuit Judges, and Kevin Thomas Duffy,* District Judge.
Opinion by Judge B. Fletcher;
Concurrence by Judge Rymer
*The Honorable Kevin Thomas Duffy, Senior United States District
Judge for the Southern District of New York, sitting by designation.
11119
BOSCHETTO v. HANSING 11123
COUNSEL
Kenneth D. Simoncini, Esq., Simoncini & Associates, San
Jose, California, for plaintiff-appellant Paul Boschetto.
Robert G. Krohn, Esq., Roethe Krohn Pope LLP, Edgerton,
Washington, for defendant-appellee Jeffrey D. Hansing.
Timothy C. Davis, Davis Law Firm, San Francisco, Califor-
nia, for defendants-appellees Frank-Boucher Chrysler Dodge-
Jeep, Gordie Boucher Ford and Boucher Automotive Group.
OPINION
B. FLETCHER, Circuit Judge:
This appeal presents a question that remains surprisingly
unanswered by the circuit courts: Does the sale of an item via
the eBay Internet auction site provide sufficient “minimum
contacts” to support personal jurisdiction over a nonresident
defendant in the buyer’s forum state? Plaintiff-Appellant Paul
Boschetto (“Boschetto”) was the winning bidder for a 1964
Ford Galaxie sold on eBay by the Defendant-Appellee, Jef-
frey Hansing (“Hansing”) for $34,106. Boschetto arranged for
the car to be shipped from Wisconsin to California, but upon
arrival it failed to meet his expectations or the advertised
description. Boschetto sued in federal court; his complaint
was dismissed for lack of personal jurisdiction. We now
affirm.
11124 BOSCHETTO v. HANSING
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Boschetto lives in San Francisco, California.1 Defendant-
Appellee Jeffrey D. Hansing resides in Milton, Wisconsin. Id.
Defendants-Appellees Frank-Boucher Chrysler Dodge-Jeep,
Gordie Boucher Ford and Boucher Automotive Group
(“Boucher Defendants”) are private corporations with their
principal places of business in Wisconsin. The Boucher
Defendants operate a website that advertises their auto dealer-
ships, although it is not alleged that this website was con-
nected in any way with the transaction at issue in this case.
Hansing is an employee of one of the Boucher Defendants,
Frank Boucher Chrysler Dodge-Jeep. The complaint avers
that on August 1, 2005, all Defendants “owned and advertised
[ ] a 1964 Ford Galaxie 500 XL 427/425 hp ‘R Code’ in awe-
some condition, not restored, rust free chrome in excellent
condition, recently rebuilt and ready to be driven, with clear
title, and a vehicle warranty number of 4E68R149127.”
The car was advertised for sale on the eBay Internet auction
site; a copy of a portion of the eBay listing was attached to
Boschetto’s complaint. Id. The eBay listing indicated that the
item was located in Janesville, Wisconsin. Boschetto bid
$34,106 for the Galaxie on August 8, 2005, and was notified
through eBay that same day that he was the winning bidder.
Id. Boschetto and Hansing communicated via email to arrange
for delivery of the vehicle from Wisconsin to California. Bos-
chetto ultimately hired a transport company to pick up the car
in Wisconsin; it arrived in California on September 15, 2005.
Id.
Upon delivery, Boschetto discovered that the car was not
1
The summary of facts is taken from Boschetto’s complaint and his affi-
davit filed in opposition to the motion to dismiss. For purposes of deter-
mining whether the court has personal jurisdiction over Defendants, the
court assumes Boschetto’s allegations are true. See AT&T v. Compagnie
Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 1996).
BOSCHETTO v. HANSING 11125
an “R Code” as advertised, and noted a variety of other prob-
lems, including a motor that would not turn over, rust, and
extensive dents on the body of the vehicle. Id. Boschetto con-
tacted eBay and Hansing in an attempt to rescind the pur-
chase, but those efforts failed. Id. He filed a complaint in
United States District Court, Northern District of California
on February 23, 2006. Boschetto alleged four state law
causes of action (violation of the California Consumer Protec-
tion Act; breach of contract; misrepresentation; and fraud),
and pled jurisdiction pursuant to the federal diversity statute,
28 U.S.C. § 1332(a).
All Defendants moved to dismiss based on lack of personal
jurisdiction. On July 13, 2006, the district court granted the
motion. The district court reasoned that the lone jurisdiction-
ally relevant contact with California, an eBay sale consum-
mated with a California purchaser, was insufficient to
establish jurisdiction over any of the Defendants. Although
Hansing used eBay to market the automobile, the district
court observed that “eBay acted not as a ‘distribution center’
but rather as a virtual forum for the exchange of goods,” and
that in a standard eBay transaction—like the one at issue in
this appeal—the item goes to whomever is the highest bidder,
and so “the eBay seller does not purposefully avail himself of
the privilege of doing business in a forum state absent some
additional conduct directed at the forum state.” Id.The district court also rejected Boschetto’s request to con-
duct additional discovery relevant to jurisdiction. Id. Noting
its “broad discretion” to permit or deny such discovery, the
court found that Boschetto’s request for further discovery was
premised on “speculat[ion] without any support” that the
additional discovery would yield jurisdictionally relevant
information. Id. Judgment was entered on July 17, 2006 and
this timely appeal followed.
II. PERSONAL JURISDICTION
We review a dismissal for lack of personal jurisdiction de
novo. See Myers v. Bennett Law Offices, 238 F.3d 1068, 1071
11126 BOSCHETTO v. HANSING
(9th Cir. 2001). In opposition to a defendant’s motion to dis-
miss for lack of personal jurisdiction, the plaintiff bears the
burden of establishing that jurisdiction is proper. See Sher v.
Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990). If the district
court decides the motion without an evidentiary hearing,
which is the case here, then “the plaintiff need only make a
prima facie showing of the jurisdictional facts.” Id. (citation
omitted). Absent an evidentiary hearing this court “only
inquire[s] into whether [the plaintiff’s] pleadings and affida-
vits make a prima facie showing of personal jurisdiction.”
Caruth v. Int’l Psychoanalytical Ass’n, 59 F.3d 126, 127-28
(9th Cir. 1995). Uncontroverted allegations in the plaintiff’s
complaint must be taken as true. See AT&T, 94 F.3d at 588.
“Conflicts between the parties over statements contained in
affidavits must be resolved in the plaintiff’s favor.” Schwar-
zenegger v. Fred Martin Co., 374 F.3d 797, 800 (9th Cir.
2004).
When no federal statute governs personal jurisdiction, the
district court applies the law of the forum state. See Panavi-
sion Int’l L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir.
1998). California’s long-arm statute is co-extensive with fed-
eral standards, so a federal court may exercise personal juris-
diction if doing so comports with federal constitutional due
process. Id. at 1320. “For a court to exercise personal jurisdic-
tion over a nonresident defendant, that defendant must have
at least ‘minimum contacts’ with the relevant forum such that
the exercise of jurisdiction ‘does not offend traditional notions
of fair play and substantial justice.’ ” Schwarzenegger, 374
F.3d at 801 (quoting International Shoe Co. v. Washington,
326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 2d 95 (1945)).
There are two forms of personal jurisdiction that a forum state
may exercise over a nonresident defendant—general jurisdic-
tion and specific jurisdiction. We deal here only with the latter.2
2
The district court summarily, and correctly, rejected Boschetto’s con-
tention that the Defendants could be subject to general jurisdiction in Cali-
fornia. Boschetto does not challenge that aspect of the district court’s
dismissal order on appeal.
BOSCHETTO v. HANSING 11127
A. The district court correctly dismissed Boschetto’s
complaint for lack of personal jurisdiction.
[1] We apply a three-part test to determine whether the
exercise of specific jurisdiction over a nonresident defendant
is appropriate:
(1) The non-resident defendant must purposefully
direct his activities or consummate some transaction
with the forum or resident thereof; or perform (some
act by which he purposefully avails himself of the
privilege of conducting activities in the forum,
thereby invoking the benefits and protections of its
laws;
(2) the claim must be one which arises out of or
relates to the defendant’s forum-related activities;
and
(3) the exercise of jurisdiction must comport with
fair play and substantial justice, i.e. it must be rea-
sonable.
Id. at 802 (citing Lake v. Lake, 814 F.2d 1416, 1421 (9th Cir.
1987)). The plaintiff bears the burden on the first two prongs.
Id. If the plaintiff establishes both prongs one and two, the
defendant must come forward with a “compelling case” that
the exercise of jurisdiction would not be reasonable. Id. (quot-
ing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476-78,
105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985)). But if the plaintiff
fails at the first step, the jurisdictional inquiry ends and the
case must be dismissed. See Pebble Beach Co. v. Caddy, 453
F.3d 1151, 1155 (9th Cir. 2006) (“[Plaintiff’s] arguments fail
under the first prong. Accordingly, we need not address [the
remaining two prongs].”).
[2] For part one of this three-part test, we have typically
analyzed cases that sound primarily in contract—as Boschet-
11128 BOSCHETTO v. HANSING
to’s case does—under a “purposeful availment” standard.
Schwarzenegger, 374 F.3d at 802 (“We often use the phrase
‘purposeful availment’ in shorthand fashion, to include both
purposeful availment and purposeful direction, but availment
and direction are, in fact, two distinct concepts. A purposeful
availment analysis is most often used in suits sounding in con-
tract.”) (internal citation omitted); see also McGlinchy v. Shell
Chemical Co., 845 F.2d 802, 817 (9th Cir. 1988) (distinguish-
ing purposeful direction precedents where “personal jurisdic-
tion is sought on a contract claim, not on a tort claim”). To
have purposefully availed itself of the privilege of doing busi-
ness in the forum, a defendant must have “performed some
type of affirmative conduct which allows or promotes the
transaction of business within the forum state.” Sher, 911 F.2d
at 1362 (internal quotation marks and citation omitted). Our
evaluation of the jurisdictional significance of a defendant’s
contract or other business in the forum is not rigid and formal-
istic, but rather practical and pragmatic. Burger King Corp.,
471 U.S. at 478 (“[W]e have emphasized the need for a highly
realistic approach that recognizes that contract is ordinarily
but an intermediate step serving to tie up prior business nego-
tiations with future consequences which themselves are the
real object of the business transaction.”) (internal quotation
marks and citation omitted); Lake, 817 F.2d at 1421 (“The
first step of the specific jurisdiction analysis involves a quali-
tative evaluation of the defendant’s contact with the forum
state.”) (emphasis added). In doing so, we are guided by the
Supreme Court’s admonition that the formation of a contract
with a nonresident defendant is not, standing alone, sufficient
to create jurisdiction. Burger King Corp., 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.”) (emphasis in
original); see also McGlinchy, 845 F.2d at 816 n.9 (same).
[3] Here, Boschetto fails at step one of the test for specific
jurisdiction, as the lone transaction for the sale of one item
BOSCHETTO v. HANSING 11129
does not establish that the Defendants purposefully availed
themselves of the privilege of doing business in California.
The arrangement between Boschetto and Hansing which is, at
bottom, a contract for the sale of a good, is insufficient to
have created a substantial connection with California. Hans-
ing (and assuming arguendo that they had any involvement in
the transaction, the Boucher Defendants) did not create any
ongoing obligations with Boschetto in California; once the car
was sold the parties were to go their separate ways. Neither
Boschetto’s complaint nor his affidavit in opposition to dis-
missal point to any continuing commitments assumed by the
Defendants under the contract. Id. Nor did performance of the
contract require the Defendants to engage in any substantial
business in California. On Boschetto’s version of the facts,
funds were sent to Wisconsin and arrangements were made to
pick up the car there and have it delivered to California. This
was, as the district court observed, a “one-shot affair.” See
Compuserve, Inc. v. Patterson, 89 F.3d 1257, 1265 (6th Cir.
1996)). As the Supreme Court has expressly cautioned, a con-
tract alone does not automatically establish minimum contacts
in the plaintiff’s home forum. See Burger King Corp., 471
U.S. at 478; see also Doe v. Unocal Corp., 248 F.3d 915, 924
(9th Cir. 2001) (“However, an individual’s contract with an
out-of-state party alone [cannot] automatically establish suffi-
cient minimum contacts to support personal jurisdiction.”)
(internal quotation marks and citations omitted); cf. Travelers
Health Ass’n v. Commonwealth of Va, 339 U.S. 643, 647, 70
S. Ct. 927, 94 L. Ed. 1154 (1950) (purposeful availment
found if “business activities reach out beyond one state and
create continuing relationships and obligations”) (emphasis
added).3
3
In Burger King the Court noted that even a “single act” by the defen-
dant can support jurisdiction, but only if that act creates a “substantial con-
nection” with the forum. 471 U.S. at 476 n.18 (quoting McGee v. Int’l Life
Ins. Co., 355 U.S. 220, 223, 78 S. Ct. 199, 2 L. Ed. 2d 223) (1957)). The
Court’s reliance on McGee is, however, telling. In McGee, the record sug-
gested there was only one contract between the defendant and any Califor-
11130 BOSCHETTO v. HANSING
[4] Ignoring the limited nature of the transaction at issue,
Boschetto attaches special significance to the fact that the
transaction was consummated via eBay, noting that the eBay
listing could have been viewed by anyone in California (or
any other state for that matter) with Internet access. But the
fact that eBay was used as the conduit for this sale does not
affect the jurisdictional outcome, at least not on the particular
facts presented here.
[5] In Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 419
(9th Cir. 1997), we discussed with approval a sliding scale
analysis that looks to how interactive an Internet website is
for purposes of determining its jurisdictional effect. (“In sum,
the common thread, well stated by the district court in Zippo,
is that the ‘likelihood that personal jurisdiction can be consti-
tutionally exercised is directly proportionate to the nature and
quality of the commercial activity that an entity conducts over
the Internet.’ ”) (quoting Zippo Mfg. Co. v. Zippo Dot Com,
952 F. Supp. 1119, 1124 (W.D. Pa. 1997)). The plaintiff in
Cybersell relied on the fact that the defendant operated a web-
site, accessible in the forum state, that contained allegedly
infringing trademarks. 130 F.3d at 416. The defendant’s web-
site advertised its services but did not allow parties to transact
business via the site. Id. at 419. Noting the lack of interac-
tivity on the defendant’s website, the court concluded that the
nia resident. 355 U.S. at 222. But the Court did not decide the
jurisdictional issue on a quantitative assessment of the number of contracts
the defendant had entered into in the forum state; rather, it looked to the
content or qualitative nature of the contract before it, and reasoned that the
contract gave rise to ongoing obligations that connected the defendant
with the forum state. Id. at 223. Applied here, it is not the fact that Defen-
dants may have entered into only one contract with a California resident
that is dispositive. Rather, it is the fact that the nature of the contract
entered into did not create any “substantial connection” between Bos-
chetto and the Defendants beyond the contract itself. Id. (“It is sufficient
for purposes of due process that the suit was based on a contract which
had substantial connection with that State.”).
BOSCHETTO v. HANSING 11131
defendant had “done no act and [ ] consummated no transac-
tion, nor has it performed any act by which it purposefully
availed itself of the privilege of conducting activities, in Ari-
zona, thereby invoking the benefits and protections of Ari-
zona law.” Id.[6] The Cybersell analysis, while persuasive where the con-
tact under consideration is the website itself, is largely inap-
plicable in this case. Here, eBay was used to create a listing
for the sale of a good. Based on a superficial application of
Cybersell, the eBay listing process and the sale it engenders
is “interactive.” Id. (noting the lack of evidence suggesting
that defendant’s website resulted in any business generation).
But, as the district court noted, “the issue is not whether the
court has personal jurisdiction over the intermediary eBay but
whether it has personal jurisdiction over an individual who
conducted business over eBay.” In Cybersell and related cases
where the Internet site actually belongs to and is operated by
the defendant, the nature of the website has jurisdictional sig-
nificance because the website allows the defendant to main-
tain some ongoing contact with the forum state (as well as
every other state that can access the site). See Zippo, 952 F.
Supp. at 1125-26 (“We are being asked to determine whether
Dot Com’s conducting of electronic commerce with Pennsyl-
vania residents constitutes the purposeful availment of doing
business in Pennsylvania.”). Here, the eBay listing was not
part of broader e-commerce activity; the listing temporarily
advertised a good for sale and that listing closed once the item
was sold, thereby extinguishing the Internet contact for this
transaction within the forum state (and every other forum).4
Moreover, Boschetto does not allege that any of the Defen-
4
Under a traditional jurisdictional analysis, advertising in a forum state
does not typically suffice to establish personal jurisdiction. See Wood v.
Santa Barbara Chamber of Commerce, 705 F.2d 1515, 1522 (9th Cir.
1983); Holland America Line, Inc. v. Wärtsilä North America, Inc., 485
F.3d 450, 460 (9th Cir. 2007).
11132 BOSCHETTO v. HANSING
dants are using eBay to conduct business generally. He does
not allege that Defendants conduct regular sales in California
(or anywhere else) via eBay. Based on his own affidavit he
named the Boucher Defendants based on a “good faith belief”
that Hansing may have been acting as their agent during the
sale. But he does not go on to allege—on information and
belief or otherwise—that either Hansing or the Boucher
Defendants are regular users of the eBay sales platform to sell
their cars.5
This is a distinction with a difference, as the cases that have
found that jurisdiction was proper based on eBay sales relied
heavily on the fact that the defendant was using the platform
as a broader vehicle for commercial activity. See, e.g., Crum-
mey v. Morgan, 965 So.2d 497, 500 (Ct. App. La. 2007) (evi-
dence of two prior sales to Louisiana residents in prior year);
Dedvukaj v. Maloney, 447 F. Supp. 2d 813, 822-23 (E.D.
Mich. 2006) (“Although the Court’s research has not dis-
closed any personal jurisdiction cases involving the use of
eBay auctions as a commercial seller’s primary marketing
vehicle, it is clear from the record that Defendants’ use of
eBay is regular and systemic.”); Malcolm v. Esposito, 2003
WL 23272406 at *4 (Va. Cir. Ct. Dec. 12, 2003)
(“Defendants are commercial sellers of automobiles who, at
the time the BMW was sold, were represented on eBay as
‘power sellers’ with 213 transactions.”).
[7] At bottom, the consummation of the sale via eBay here
is a distraction from the core issue: This was a one-time con-
tract for the sale of a good that involved the forum state only
because that is where the purchaser happened to reside, but
otherwise created no “substantial connection” or ongoing
5
It is for this reason that Boschetto’s reliance on Stomp, Inc. v. NeatO
LLC, 61 F.Supp.2d 1074 (C.D. Cal. 1999) is misplaced. In Stomp, the
defendant used its own website as a portal for on-line sales, and the defen-
dant consummated at least a “small” number of sales in the forum state.
Id. at 1078.
BOSCHETTO v. HANSING 11133
obligations there. See McGee, 355 U.S. at 223. The Supreme
Court has, in the past, sounded a note of caution that tradi-
tional jurisdictional analyses are not upended simply because
a case involves technological developments that make it eas-
ier for parties to reach across state lines. World-Wide Volks-
wagen, 444 U.S. at 293 (“[W]e have never accepted the prop-
osition that state lines are irrelevant for jurisdictional pur-
poses, nor could we, and remain faithful to the principles of
interstate federalism embodied in the Constitution.”). The use
of eBay no doubt made it far easier to reach a California
buyer, but the ease with which Boschetto was contacted does
not determine whether the nature and quality of the Defen-
dants’ contacts serve to support jurisdiction. That is not to say
that the use of eBay digs a virtual moat around the defendant,
fending off jurisdiction in all cases. Where eBay is used as a
means for establishing regular business with a remote forum
such that a finding of personal jurisdiction comports with
“traditional notions of fair play and substantial justice,” Inter-
national Shoe Co., 326 U.S. at 316, then a defendant’s use of
eBay may be properly taken into account for purposes of
establishing personal jurisdiction. See Crummey, 965 So.2d at
500; Dedvukaj, 447 F. Supp. 2d at 822-23; Malcolm, 2003
WL 23272406 at *4. But on the facts of this case—a one-time
transaction—the use of eBay as the conduit for that transac-
tion does not have any dispositive effect on jurisdiction.6
6
We note that our affirmance of the district court’s dismissal is in-line
with a number of state court decisions that have addressed whether per-
sonal jurisdiction can be established by way of a single eBay transaction
with a forum plaintiff. See e.g., Sayeedi v. Wasler, 15 Misc.3d 621, 628
(N.Y. Civ. Ct. 2007) (“No evidence was provided by Plaintiff as to Defen-
dant’s overall eBay statistics, experience, or any marketing directed at
potential customers, designed for instance, to welcome bids from New
Yorkers or any other acts that indicate Defendant may be purposely avail-
ing himself specifically to the business of New Yorkers or any desire to
take advantage of New York law.”); Gossett v. HBL, LLC, 2006 WL
1328757 at *2 (D.S.C. 2006 May 11, 2006) (“[Defendant’s] mere listing
on eBay is not enough to invoke jurisdiction in South Carolina.”); Karstet-
ter v. Voss, 184 S.W.3d 396, 405 (Tex. App. 2006) (“There was no evi-
dence that appellees traveled to Kansas or engaged in other transactions
11134 BOSCHETTO v. HANSING
B. The district court did not abuse its discretion by
denying Boschetto’s request for jurisdictional
discovery.
A district court’s decision to permit or deny jurisdictional
discovery is reviewed for abuse of discretion. See Data Disc,
Inc. v. Systems Tech. Assoc., Inc., 557 F.2d 1280, 1285 n.1
(9th Cir. 1977). The district court’s refusal to provide such
discovery, “will not be reversed except upon the clearest
showing that denial of discovery results in actual and substan-
tial prejudice to the complaining litigant. Discovery may be
appropriately granted where pertinent facts bearing on the
question of jurisdiction are controverted or where a more sat-
isfactory showing of the facts is necessary.” Id. (citing Wells
Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 430
n.24 (9th Cir. 1977)).
The district court did not abuse its discretion by denying
Boschetto’s request for jurisdictional discovery. Boschetto
does not allege that the Boucher Defendants’ dealership web-
site is used to conduct sales, merely that it can be viewed by
potential customers. Moreover, Boschetto does not allege that
any of the Defendants made any other eBay sales or posted
listings either before or after the initiation of the lawsuit.
While it might be jurisdictionally relevant if Hansing or the
Boucher Defendants had used eBay to conduct a significant
quantity of automobile sales to California residents or in other
states, neither Boschetto’s complaint nor his affidavit allege
that any of the Defendants are engaged in such sales. The
denial of Boschetto’s request for discovery, which was based
on little more than a hunch that it might yield jurisdictionally
with appellant or other Kansas residents either through the eBay service
or otherwise.”); Metcalf v. Lawson, 802 A.2d 1221, 1227 (N.H. 2002)
(“Finally, what appears to be the isolated nature of this transaction and the
absence of any evidence that the defendant was a commercial seller mili-
tate against a finding of jurisdiction.”).
BOSCHETTO v. HANSING 11135
relevant facts, was not an abuse of discretion. See Butcher’s
Union Local No. 498 v. SDC Inv., Inc., 788 F.2d 535, 540 (9th
Cir. 1986) (holding that district court did not abuse its discre-
tion by refusing jurisdictional discovery where the plaintiffs
“state only that they ‘believe’ discovery will enable them to
demonstrate sufficient California business contacts to estab-
lish the court’s personal jurisdiction”).
III. CONCLUSION
[8] The sale of one automobile via the eBay website, with-
out more, does not provide sufficient “minimum contacts” to
establish jurisdiction over a nonresident defendant in the
forum state. Likewise, given the total absence of any evidence
or allegations that the conduct here involved more than just
this one sale, the district court did not abuse its discretion by
refusing to allow jurisdictional discovery.
AFFIRMED.
RYMER, Circuit Judge, concurring:
I agree that jurisdiction is lacking. I write separately to
underscore my disagreement with Boschetto’s argument that
Hansing, as a seller on eBay, necessarily availed himself of
the privilege of doing business in each state across the nation.
I believe that a defendant does not establish minimum con-
tacts nationwide by listing an item for sale on eBay; rather, he
must do “something more,” such as individually targeting res-
idents of a particular state, to be haled into another jurisdic-
tion.
The basic principles are well settled. Personal jurisdiction
is proper if it is consistent with the forum state’s long-arm
statutes and if it comports with due process of law. Fireman’s
Fund Ins. Co. v. Nat’l Bank of Coops., 103 F.3d 888, 893 (9th
11136 BOSCHETTO v. HANSING
Cir. 1996). California’s long-arm statute extends the exercise
of personal jurisdiction to the limits of due process. Harris
Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements Ltd., 328
F.3d 1122, 1129 (9th Cir. 2003) (citing Cal. Code Civ. Pro.
§ 410.10). For due process to be satisfied, a defendant must
have “minimum contacts” with the forum state such that the
assertion of jurisdiction “does not offend traditional notions of
fair play and substantial justice.” Pebble Beach Co. v. Caddy,
453 F.3d 1151, 1155 (9th Cir. 2006) (citing Int’l Shoe Co. v.
Washington, 326 U.S. 310, 315 (1945)).
This circuit applies a three-part test to determine whether
a plaintiff has demonstrated sufficient minimum contacts to
establish specific jurisdiction over a defendant. Minimum
contacts are found where:
(1) the defendant has performed some act or con-
summated some transaction within the forum or oth-
erwise purposefully availed himself of the privileges
of conducting activities in the forum, (2) the claim
arises out of or results from the defendant’s forum
related activities, and (3) the exercise of jurisdiction
is reasonable.
Id. at 1155 (citing Bancroft & Masters, Inc. v. Augusta Nat’l
Inc., 223 F.3d 1082, 1086 (9th Cir. 2000)). The plaintiff bears
the burden of satisfying the first two prongs of the test, and
the defendant bears the burden on the third. Id. Boschetto falls
short on the first prong.
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.
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-76
(1985) (citations omitted). We have refined this to mean that
the defendant must either have “purposefully availed” himself
of the privilege of conducting activities in the forum, thus
invoking the benefits and protections of its laws, or have
BOSCHETTO v. HANSING 11137
“purposefully directed” his activities toward the forum. Sch-
warzenegger v. Fred Martin Motor Co., 374 F.3d 797, 807
(9th Cir. 2004).
A defendant “purposefully avails” himself of a forum when
he acts in a way that creates a “substantial connection” with
the state, Burger King, 471 U.S. at 475, see also Kulko v. Cal-
ifornia Superior Court, 436 U.S. 84, 94, n.7 (1978), as where
he deliberately engages in significant activities there, Keeton
v. Hustler Magazine, Inc., 465 U.S. 770, 781 (1984), or
creates “continuing obligations” between himself and its resi-
dents. Travelers Health Ass’n v. Virginia, 339 U.S. 643, 648
(1950). In return for taking advantage of the forum state’s
“benefits and protections,” the defendant must submit to the
burden of being sued there. Burger King, 471 U.S. at 475-76.
A defendant “purposefully directs” activity at a forum state
when he: (1) commits an intentional act, that is (2) expressly
aimed at the forum state, and that (3) causes harm that he
knows is likely to be suffered in that jurisdiction. See Schwar-
zenegger, 374 F.3d at 803 (citing Calder v. Jones, 465 U.S.
783 (1984)). Under this “effects test,” it is not sufficient that
the defendant took action with a foreseeable effect in the
forum state. Id. at 804-05. He must do “something more” for
courts to conclude that he “expressly aimed” activity at the
forum, such as individually targeting its residents. Id. at 805;
Pebble Beach Co., 453 F.3d at 1157.
In my view, Hansing did not purposefully avail himself of
California. Hansing created no continuing obligations to Cali-
fornia residents by selling his car on eBay. His only obliga-
tion was to complete the sale with the highest bidder, whoever
and wherever he might be, which Hansing fulfilled by allow-
ing Boschetto to retrieve the car in Janesville, Wisconsin. Nor
did Hansing’s eBay auction establish a substantial connection
between himself and California such that he invoked the ben-
efits and protections of its laws. There is no suggestion that
11138 BOSCHETTO v. HANSING
he is engaged in ongoing business activities there,1 and though
a Californian ultimately made the highest of fifty bids, this
was a fortuity; Boschetto does not argue either that Hansing
had any control over the high bidder’s location within the
United States, or that the high bidder’s residence had any
effect on Hansing’s obligations, given Hansing’s requirement
that the high bidder either pick up the car in Wisconsin or, as
Boschetto did, arrange for a third-party to ship it somewhere
else. World-Wide Volkswagen Corp., 444 U.S. 286, 297-99
(1980) (“the foreseeability that is critical to [the] 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.”)
(citations omitted).
I also do not think that Hansing purposefully directed any
activity at California. Boschetto argues that Hansing directed
his eBay auction at the state by failing to bar Californians
from bidding. By accepting bids from all states, he contends,
Hansing offered to sell the subject vehicle to residents of each
state of the union, including California. I disagree that allow-
ing eBay users throughout the United States and Canada to
bid on an auction subjects the seller to nationwide jurisdic-
tion. As we have previously held, merely advertising over the
Internet is not sufficient to confer jurisdiction throughout the
United States, even though the advertisement or website at
issue may be viewed nationwide. Pebble Beach Co., 453 F.3d
at 1157-58; Cybersell, Inc, 130 F.3d at 419-20.2 The defen-
1
There is no basis for concluding that Hansing is engaged in extensive
business activity on the Internet, with California or any other forum. See
Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 419-20 (9th Cir. 1997).
Although Boschetto points to Stomp, Inc. v. NeatO, LLC, 61 F.Supp.2d
1074, 1077 (C.D. Cal. 1999), I do not accept its suggestion that conduct-
ing any business over the Internet subjects a defendant to suit nationwide.
2
Boschetto argues that Hansing should not be allowed to take advantage
of modern technology while simultaneously escaping traditional notions of
BOSCHETTO v. HANSING 11139
dant must do “something more” to aim activity expressly at
a state, Cybersell, 130 F.3d at 418, 419; Pebble Beach Co.,
453 F.3d at 1156-57,3 and Boschetto has not shown either that
Hansing tailored his auction to the residents of any state in
particular, or that he sent or advertised his auction to any state
in particular, much less California.4 Arguably, Hansing could
foresee that California residents would bid on his auction, and
that he would benefit from their participation, but foreseeable
participation by Californians is not enough. Hansing must
have done something more to aim his auction expressly at the
state, such as individually targeting California residents.5 Peb-
jurisdiction. However, we rejected this precise argument in Cybersell. 130
F.3d at 419. Haling Hansing into California would be inconsistent with
traditional notions of jurisdiction. In any event, I am not persuaded by
Boschetto’s characterization of Hansing’s use of the Internet to sell his car
as “taking advantage.” Allowing sellers to hold nationally available auc-
tions without requiring them to submit to jurisdiction nationwide is benefi-
cial to buyers as well. A less-burdensome jurisdictional rule encourages
sellers to hold auctions in the first place, thereby creating opportunities for
buyers to find items they want and to decide for themselves whether —
taking all relevant matters into account — they want to place a bid.
3
See also Rio Properties, Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1020
(9th Cir. 2000) (no jurisdiction based on passive website without “some-
thing more”); Panavision Int’l, L.P. v. Toeppen, 141 F.3d 1320 (9th Cir.
1998) (posting website on internet does not establish jurisdiction nation-
wide); and Schwarzenegger, 374 F.3d at 806-07 (foreseeable effect of
Ohio print advertisement in California did not render advertisement “ex-
pressly aimed” at California); cf. Bancroft, 223 F.3d at 1084 (letter to
domain registrar, which interfered with plaintiff’s use of registered
domain, independently targeted plaintiff); and Metropolitan Life Ins. Co.
v. Neaves, 912 F.2d 1062, 1065 (9th Cir. 1990) (fraudulent letter sent to
plaintiff in forum state was express aiming).
4
Even if Hansing knew Boschetto was in California when he sent the
post-auction email, the email was not sufficient to subject him to personal
jurisdiction there. It established only a limited contact, and Hansing sent
it because Boschetto won the auction, not because he was in California.
See Burger King Corp., 471 U.S. at 474.
5
Nor did Hansing purposefully avail himself of the benefits and protec-
tions of California by allowing Californians to bid. His auction did not
11140 BOSCHETTO v. HANSING
ble Beach Co., 453 F.3d at 1157. On the facts of this case, he
did nothing more. He simply permitted those with eBay
access throughout the United States and Canada to bid on his
car, agreeing to let the winner retrieve it in Janesville, Wis-
consin.
Accordingly, although Hansing listed his car for sale in an
unrestricted eBay auction, allowing residents of all states to
view the auction and bid, and though he ultimately sold the
car to a California resident, he neither availed himself of the
privilege of doing business in California nor purposefully
directed any activity at the state.6
I agree that the district court did not abuse its discretion by
denying Boschetto jurisdictional discovery. Where, as here, a
plaintiff’s claim of personal jurisdiction is both attenuated and
based on bare allegations rebutted by specific denials made by
create a substantial connection with the forum, and nothing in the record
indicates that it made any difference to Hansing where the winning bidder
resided (within the United States or Canada) or where he took the car
when it left Wisconsin. World-Wide Volkswagon, 444 U.S. at 295-97 (no
jurisdiction over auto distributor based on customer’s decision to drive to
the forum state).
6
This is consistent with the approach of the majority of courts to address
whether listing an item for nationwide sale on eBay requires a seller to
submit to suit nationwide. See e.g. Winfield Collection, Ltd. v. McCauley,
105 F.Supp.2d 746, 749 (E.D. Mich. 2000) (eBay sales are random and
attenuated); Metcalf v. Lawson, 802 A.2d 1221, 1226 (N.H. 2002) (seller
had no control over ultimate winner); Karstetter v. Voss, 184 S.W.3d 396,
405 (Tex. Ct. App. 2006) (contact with Kansas was random, isolated and
fortuitous); Action Tapes, Inc. v. Ebert, 2006 U.S. Dist. LEXIS 4958 (N.D.
Tex. 2006) (eBay sellers do not control interactivity of eBay site); United
Cutlery Corp. v. NFZ, Inc., 2003 U.S. Dist. LEXIS 21664 (D. Md. 2003)
(intent was to sell to highest bidder, irrespective of location); Gossett v.
HBL, LLC, 2006 WL 1328757, *2 (D.S.C. 2006) (“mere listing on eBay
is not enough to invoke jurisdiction . . . .” ); and Sayeedi v. Walser, 2007
WL 623521 (N.Y.C. Civ. Ct. 2007) (ultimate destination of eBay item
completely determined by bidders).
BOSCHETTO v. HANSING 11141
the defendants, the district court need not permit even limited
discovery. Pebble Beach Co., 453 F.3d at 1160.