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Kluin v. American Suzuki Motor Corporation11/1/2002
mation in Kansas about the Suzuki motorcycle on Suzuki's web site and that he read, in Kansas, advertisements and cycle articles in various motorcycle magazines.
Kluin, in his appellate brief, asserts that Kansas has jurisdiction over his KCPA claim because of Suzuki's misrepresentations. "The solicitations and dissemination of false information occurred while plaintiff was located in Neosho County, Kansas."
The district court noted that an Internet advertising claim was rejected in Bensusan Restaurant Corp. v. King, 937 F. Supp. 295 (S.D.N.Y. 1996), aff'd 126 F.3d 25 (2d Cir. 1997). In Bensusan Restaurant, the sole issue was whether the existence of a web site, without anything more, was sufficient to give the court jurisdiction under New York's long arm statute and the Due Process Clause of the United States Constitution. Bensusan Restaurant held that the "mere foreseeability of an in-state consequence and a failure to avert that consequence is not sufficient to establish personal jurisdiction." 937 F. Supp. at 300. The creation of a web site with a telephone number permitting the user to order tickets was not an offer to sell the product in New York for the purposes of the "tortious act" provision in the state's long arm statute. See 937 F. Supp. at 299-300.
Rainy Day Books v. Rainy Day Books & Café, 186 F. Supp. 2d 1158 (D. Kan. 2002), provides an interesting discussion on the question of Internet contacts and personal jurisdiction. A web site where Kansans could buy books through a "virtual store" by clicking on a bookstore link was sufficient contact to exercise personal jurisdiction. Rainy Day discusses the "sliding scale" for Internet use described in Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp 1119, 1124 (W.D. Pa. 1997). (The "scale" moves from an interactive web site like the one in Rainy Day, to a middle category where a user can exchange information with a host computer, to the passive-type web site which makes information available to those who are interested in it.) Suzuki's web site is passive. Personal jurisdiction is not appropriate when Internet use involves a passive web site. Rainy Day, 186 F. Supp. 2d at 1163 (citing Soma Medical Int'l v. Standard Chartered Bank, 196 F.3d 1292, 1296-97 [10th Cir. 1999]).
Suzuki supports its contention that national advertisements and web sites do not generally provide the basis for personal jurisdiction by relying on Fid. & Cas. Co. v. Philadelphia Resins, 766 F.2d 440, 446-47 (10th Cir. 1985), cert. denied 474 U.S. 1082 (1986) (advertisement in national journal not sufficient to show purposeful availment); SF Hotel Company, L.P. v. Energy Investments, Inc., 985 F. Supp. 1032, 1034-35 (D. Kan. 1997) (passive web site did not provide basis for personal jurisdiction); P.A.T. Co. v. Crimtec Corp., 1993 WL 257094 (D. Kan.1993) (advertisements in national publications sent to Kansas not sufficient to establish minimum contacts). Other cases have supported the notion that merely advertising from one forum to another is not sufficient to provide personal jurisdiction. See Origins Natural Resources, Inc. v. Kotler, 133 F. Supp. 2d 1232, 1236-37 (D.N.M. 2001); Mallinckrodt Medical v. Sonus Pharmaceuticals, 989 F. Supp. 265, 272 (D.D.C. 1998). Neither Suzuki's passive web site nor its advertisements and articles in national magazines provide sufficient Kansas contacts to support personal jurisdiction over Suzuki under the facts here.
Kluin cites Pavlovich v. Superior Court, 91 Cal. App. 4th 409, 109 Cal. Rptr. 2d 909 (Cal. App. 2001), but that opinion was withdrawn from the official reporter by the California Supreme Court, which granted review December 12, 2001; see 114 Cal. Rptr. 2d 611, 36 P.3d
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