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Assignment 3: Case note

Based on an
assignment developed by Damir Urem, The Hague UAS

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•       Name of the case

and D. DALE YORK (No. 11A01-0712-CV-608)


The following civil case “Richard Attaway and Marlene
Attaway vs. Llexcyiss Omega and D. Dale York” was adjudicate by the Court of
Appeals of Indiana.

The parties involved in it are Richard Attaway and
Marlene Attaway (The Attaways) as appellants-defendants (represented by the
attorney Lindsay T. Boyd) and Llexcyiss Omega and D. Dale York as
appellees-plaintiffs (represented by the attorney Gary G. Hanner).

The issues regarding the case are:

Did the
trial court err in its decision to deny the motion of dismiss;

the venue – Clay County – is proper;

And does
the eBay and PayPal user agreement prohibit the parties from litigating their

The problem concerns the matter of personal jurisdiction
regarding parties residing in different States.


FACTS of the case


Llexcyiss Omega and
D. Dale York, both residents of Indiana, sold to Richard Attaway and Marlene
Attaway, residing in Idaho, a Porsche. The sale came in a consequence of an
auction which was held on eBay website and was opened to any registered eBay
user residing in United States. Prior to the auction Llexcyiss Omega and D.
Dale York listed on eBay a description of the Porsche as well as a statement
that the car is located in State of Indiana and that the future buyer (“winning”
bidder) would hold the responsibility to orange and pay for the delivery of the

The Attaways won
the auction after entering a bid of $5 000 plus delivery costs. 

The payment by the
Attaways to Omega and York was made through PayPal (an online payment service
owned by eBay) after they received the winning notification. The amount was
charged to the Attaways’ MasterCard account.

The Attaways used a
representative – CarHop USA, a Washington-based auto transporter – for picking
up their purchase and delivering it to the place of their residence in State of

After receiving the
delivery, the Attaways, contacted PayPal claiming a refund of the payment,
which was made to Omega and York, citing that the Porsche differed
significantly of its description, which was listed by sellers on eBay. In its
response via email PayPal denied the Attaways’ claim encouraging them to “work
directly with the buyer to find a resolution.”

It is not indicated
in case description whether the Attaways contacted the seller or not, but it is
known that they convinced MasterCard to rescind the payment that was made to
Omega and York. This act led Omega and York to filing a suit in small claims
court, situated in Clay County, Indiana, demanding $5,900 in damages.

The Attaways filed
an answer and a motion to dismiss with prejudice, citing, among other things,
lack of personal jurisdiction. The trial court denied the motion. Then the
Attaways filed a motion to certify order for appeal and a motion to stay
proceedings pending appeal, which the trial court granted.


THEORY – Conceptual Framework


The theory that is implemented in the case regards
personal jurisdiction. Legal dictionary ( defines  ” Jurisdiction”
as “the authority given by law to a court to try cases and rule on legal
matters within a particular geographic area and/or over certain types of legal
cases. … State courts have jurisdiction over matters within that state, and different
levels of courts have jurisdiction over lawsuits involving different amounts of
money. More than one court may have concurrent jurisdiction, such as both state
and federal courts, and the lawyer filing the lawsuit may have to make a
tactical decision as to which jurisdiction is more favorable or useful to
his/her cause, including time to get to trial, the potential pool of jurors or
other considerations. Appellate
jurisdiction is given by statute to appeals courts to hear appeals about
the judgment of the lower court that tried a case, and to order reversal or
other correction if error is found. State appeals are under the jurisdiction of
the state appellate courts, while appeals from federal district courts are
within the jurisdiction of the courts of appeal and eventually the Supreme
Court. Jurisdiction is not to be confused with “venue,” which means
the best place to try a case. Thus, any state court may have jurisdiction over
a matter, but the “venue” is in a particular county.” 

The legal theory, as it was stated in the case
description itself, defines two types of personal jurisdiction – general and
specific. The difference between those two types is to be found in field of
defendant’s contact with the forum state. Defendant is found to be a subject of
general jurisdiction in case  his
contacts could be defined as “so “continuous and systematic” that he should
reasonably anticipate being haled into the courts of that state for any
matter”( LinkAmerica, 857 N.E.2d at 967; Helicopteros Nacionales de Colombia,
S.A. v. Hall, 466 U.S. 408, 415 n.9, 104 S.Ct. 1

In the instant case parties as well as the court agreed
that the Attaways were not subject to general jurisdiction in Indiana.

Specific jurisdiction regards the cases in which general
jurisdiction is not applicable, yet still the defendant’s conduct and connection
with the forum state is “such that he should reasonably anticipate being haled
into court there.”  Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 474-75, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985).  So in the instant case the court had to
analyze if the contact of the Attaways with the forum state are sufficient to
support a finding of specific jurisdiction. To do so the Court did a research
on similar cases recently decided recently by other courts.

of  the following legal terminology is necessary
for the understanding of case at all:

Affirmed- it indicates the situation when the lower court
decision is correct and the court of appeal will be performed by the lower
court. (“Legal Dictionary –”, 2018)

of appeals – any court (state or federal) which
hears appeals from judgments and rulings of trial
courts or lower appeals courts. (“Legal Dictionary –”, 2018)

Appellant – the party who appeals a trial court decision (“Legal
Dictionary –”, 2018)

•       Claim
– A claim means that one
party owes something to the other party, which could be money, property and
etc. (“Legal Dictionary –”, 2018)

•        Defendant – the party sued in a civil

•       Evidence
–  every type of proof legally presented at trial (allowed
by the judge) which is intended to convince the judge and/or jury of alleged
facts material to the case. (“Legal Dictionary –”,

•       Forum
– a court which has jurisdiction to hold a trial of a
particular lawsuit or petition. (“Legal Dictionary –”,

•       Judge
– a public officer of the
Legal branch with authority to decide cases in a law court. (“Legal
Dictionary –”, 2018)

•       Plaintiff- A party that initiates a formal complaint
(lawsuit) in the court. (“Legal Dictionary –”, 2018)

•       Remand – to send
back. An appeals court may remand a case to the trial court for further action.
(“Legal Dictionary –”, 2018)

•       Small claims courts –  the lowest courts handling lesser disputes
with no representation by attorneys and short and somewhat informal trials
conducted by judges, commissioners or lawyers.

Venue – the proper
or most convenient location for trial of a case. Thus, any state court may
have jurisdiction over a matter, but the “venue” is in a particular
county. (“Legal Dictionary
–”, 2018)



The Court of
Appeals of Indiana needed to consider on following issues:

Did the
trial court err by denying the Attaways’ motion to dismiss? In general the
appellants argue that their connection with state of Indiana was not of a kind
to support a personal jurisdiction.  They
point out a U.S. District Court Case from New Jersey -Machulsky
v. Hall – which facts they claim to be the most equal to the instant case and
in which the courts findings were that “single purchase, without more, is not a
sufficient premise upon which the Court can exercise personal jurisdiction
over the Oregon buyer.” Id. at 542 .

venue in Clay County proper? The Attaways argue that venue in Clay County is
improper because “at no time did the Attaways enter into a transaction which
availed themselves of Clay County.”

Do the
eBay and PayPal user agreements prohibit the parties from litigating their
dispute? The Attaways contend that eBay dispute resolution process is a
substitute to litigation, which eBay and PayPal users are required to use.



Applicable law is
any statute, ordinance, judicial decision, executive order, or a regulation
having the force and effect of law that determines the legal standing of a case
or issue. In this legal case the
applicable law is associated with Indiana Trial Rule 4.4 (Indiana’s long arm
provision). In 2006, the Supreme Court clarified that a 2003 amendment to
Indiana Trial Rule 4.4(A) “was intended to, and does, reduce analysis of
personal jurisdiction to the issue of whether the exercise of personal
jurisdiction is consistent with the Federal Due Process Clause.”  Concerning that matter, in International Shoe
Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), the U.S.
Supreme Court established that a nonresident defendant must have “certain
minimum contacts with the forum state such that the maintenance of the suit
does not offend traditional notions of fair play and substantial justice.” The
Court later clarified this test to mean that the nonresident defendant must
engage in “some act by which he purposefully avails himself of the
privilege of conducting activities within the Forum State, thus invoking the
benefits and protections of its laws.”


It is also associated with the following cases:

•       Lee v. Goshen Rubber Co., 635 N.E.2d 214,
215 (Ind. Ct. App. 1994) – about burden of proof when court’s juridiction is

•       Dexter Axle Co. v. Baan USA, Inc., 833
N.E.2d 43, 48 (Ind. Ct. App. 2005) – about applying a de novo standard of
review when reviewing a motion to dismiss for lack of personal jurisdiction.

•       LinkAmerica Corp. v. Albert, 857 N.E.2d 961,
965 (Ind. 2006) – about the certain minimum of contact a nonresident defendant
must have with the forum state;

•       International Shoe Co. v. Washington, 326
U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945)

•       Hanson v. Denckla, 357 U.S. 235, 253, 78
S.Ct. 1228, 2 L.Ed. 1283 (1958) – clarification of the acts the nonresident
defendant must be engaged in;

•       LinkAmerica, 857 N.E.2d at 967; Helicopteros
Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415 n.9, 104 S.Ct. 1868, 80
L.Ed.2d 404 (1984) – about the subject of general amd specific personal

•       Burger King Corp. v. Rudzewicz, 471 U.S.
462, 474-75, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) – about the establishment of
specific personal jurisdiction;

•       McGee v. Int’l Life Ins. Co., 355 U.S. 220,
223, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957) – about creation of a “substantial
connection” with the forum state;

•       Dedvukaj v. Maloney, 447 F.Supp.2d 813
(E.D.Mich. 2006) – about the personal jurisdiction of a seller dealing on eBay

•       Boschetto v. Hansing, 539 F.3d 1011 (9th
Cir. 2008), cert. denied (2009) – about the personal jurisdiction of a seller
dealing on eBay

•       Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952
F.Supp. 1119 (W.D.Pa., 1997) – about “sliding scale” test in internet
jurisdiction cases, which seeks to distinguish interactive from passive

•       Sayeedi v. Walser, 835 N.Y.S.2d 840, 845-46
(N.Y. City Civ. Ct. 2007)

•       Machulsky v. Hal



The most
sophisticated yet of a greater importance appeared to be the issue with
jurisdiction of the trial’s court. In order to conclude on whether the Clay
County small claims court is alleged to adjudicate the Llexcyiss Omega and D.
Dale York vs Richard Attaway and Marlene Attaway case or not, and thus
alternatively affirm or revise its ruling upon the motion of dismiss, the Court
of Appeal needed to review the issue regarding personal jurisdiction.  In order to come to a conclusion, the court
of appeals regarded following facts:

Appellees, Omega
and York , residents of State of Indiana, listed for sale on eBay a Porsche. The
auction was opened to any eBay registered user in United States. Beside the
description of the vehicle , the listing was giving also an substantial information
about the exact location of the Porsche as well as that the future buyer will
be responsible  for arranging and paying
for delivery . Appelants, Richard Attaway and Marlene Attaway (the Attaways),
residents of State of Idaho, made a bid of $5000 thus winning the auction. After
receiving the winning notification, the Attaways made a payment through PayPal
an arranged the transportation of the vehicle by hiring an New York-based auto shipping
company to enter the state of Indiana and, acting as their representative, to
pick up the Porsche and deliver it to state of Idaho.

Discussing the facts,
court of appeals reasonably presumes that from the very beginning, when making
their decision to participate the auction, the Attaways were well aware of the
fact that the object they intend to buy is situated in a state of Indiana as
well as that the charges for picking the vehicle up, either by themselves or by
a representative, and delivering it to Idaho would be in their responsibility.
Based on these facts, the court of appeals comes to a conclusion that by
submitting a bid , the Attaways agreed on the above mentioned and by this they “purposefully
availed themselves of the privilege of conducting activities within the State
of Indiana such that they could reasonably anticipate defending a lawsuit in
Indiana related to this eBay purchase”.  

The court also
concludes that as there are no evidences that the burden on Attaway is greater
than it would be on Omega and York if the law-suit was filed in Idaho, allowing
the state of Indiana to exercise personal jurisdiction in this case is “within
the bounds of fair play and substantial justice”.

II. Small Claims

The court of
appeals did not support this argument finding that by sending a representative
to Clay County to pick up the vehicle after it was purchased, the Attaways
conducted an action which could be considered as “sufficient to establish venue
in Clay County”.


III. Online Dispute
Resolution Process

The court of
appeals did not support this argument for two reasons. First, the appellants provided
no evidence which versions of the user agreement were in effect at the time of

appellants did not show any evidence pointing on fact that the online dispute
resolution process is a buyer or seller’s sole alternative in the event a
dispute arises as well as never pointed any case-law in which an eBay dispute
has been dismissed for lack of jurisdiction on these grounds.


Based on all of the
above, the Court of Appeals affirmed the trial court’s denial of the Attaway’s
motion to dismiss and remanded the case for further action




•       GIVE:

The importance of instant case consist in
the fact that for the first time the court in Indiana (and most likely in the
coutry too) had to adress the case of a seller suing a buyer for rescission of
payment after the purchased item was picked up by a buyer the in the seller’s

I personally find the court’s judgement to
be logical and in consistance with the fair play and substantial justice.  In my opinion, by discussing all the relevant
facts and resent courts practice in similar cases, on instant case, the court
of appeal came to a right and fair conclusion that as the appellants purposefully involved themselves in doing bussiness with a party
residing in a diferent state they made themselves available for the potential
law suit in that very state. 


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