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«I. INTRODUCTION We often hear what the Internet can do for us. We should also think about what the Internet can do to us.' An amalgam of ...»

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PASSIVE VOICE: THE UNCLEAR STANDARDS FOR

ESTABLISHING PERSONAL JURISDICTION IN NEW

MEXICO VIA THE WORLD WIDE WEB

MARK D. STANDRIDGE"

I. INTRODUCTION

"We often hear what the Internet can do for us. We should also think about what

the Internet can do to us."' An amalgam of interconnected computer-based

applications that includes "electronic mail ('e-mail'), automatic mailing list services ('mail exploders,' sometimes referred to as 'listservs'), 'newsgroups,' 'chat rooms,' and the 'World Wide Web,"' 2 constitutes what we collectively know as "the Internet."3 This technology has provided millions of users, from individuals seeking to voice their opinions to Fortune 500 companies looking to expand their market share, with nearly limitless opportunities for publishing information to the world."

With its rapid proliferation, however, the Internet has also brought about problems for lawyers, judges, and information technology professionals trying to discern whether or not a Web site will subject its creator or owner to a lawsuit. Specifically, courts have struggled for years to determine at what point a site is so filled with content that the individual or corporation that manages the site will be subjected to personal jurisdiction.' The New Mexico Court of Appeals took up the question of Internet-based personal jurisdiction in Sublett v. Wallin.' The court held that a defendant company's Web site, which conveyed information about the company's business and featured a method for finding a local franchisee of the business, did not provide sufficient minimum contacts to establish personal jurisdiction over the company.7 In reaching this decision, the court analyzed the two most prevalent approaches to establishing personal jurisdiction via the Internet: the broad standard of Inset Systems, Inc. v. Instruction Set, Inc., 8 and the more narrow approach of Zippo Manufacturing Co. v. Zippo Dot Corn, Inc.9 Aligning itself with the court in Zippo Manufacturing,° the New Mexico Court of Appeals reasoned that primarily "passive" Web sites such as the one in this case did not suffice for subjecting potential defendants to the laws of New Mexico." However, the court ended the * Class of 2006, University of New Mexico School of Law. I would like to thank Professor J. Michael Norwood, my faculty advisor, for his invaluable guidance and encouragement on this Note, as well as Professor Kip Bobroff for his input on the project. I would also like to thank Camille Pedrick Chavez and Kelly Waterfall, my manuscript editors.

1. Deana D. Palmisano, PersonalJurisdictionandthe Internet:A PotentiallyEntangling Web (emphasis added), at http://www.sessions-law.com/news.html (last visited Mar. 25, 2005).

2. Reno v. ACLU, 521 U.S. 844, 851 (1997).

3. Id.

4. See id. at 850-53.

5. See generally Michael J.

–  –  –

discussion there, leaving open the questions of whether or not an "active" Web site would suffice to establish personal jurisdiction, as well as whether particular types of suits-namely trademark, libel, and defamation-would merit a more scrutinized Internet-based personal jurisdiction analysis. 12 This Note will examine the court's findings on "passive" and "active" Web sites 3 against the backdrop of Internetbased personal jurisdiction jurisprudence, 4 as well as the implications of the decision's unanswered questions. 5 II. BACKGROUND In general terms, "[p]ersonal jurisdiction is the power of a court to decide a matter in controversy and the control by the court over the" parties involved in a given controversy. 6 Personal jurisdiction is critical to the litigants in any dispute, as a judgment rendered by a court that does not have proper personal jurisdiction cannot be enforced if properly challenged. 7 "A court may exercise two types of personal jurisdiction: 'general jurisdiction,' which extends to all cases and controversies that may be brought before a court within the legal bounds of rights and remedies; or 'specific jurisdiction,' which covers only a particular case or class of cases."' 8 As it is "more limited in nature than general jurisdiction," specific jurisdiction typically "requires a lower threshold of proof to be" established within a forum. 9 Various factors are considered by courts when determining whether to utilize specific or general jurisdiction.20 Such factors include the nature and quality of a defendant's activities within the forum,2' as well as a defendant's advertising habits within a forum state.22 When attempting to base personal jurisdiction on a defendant's activities over the Internet, most courts in the United States have sought specific jurisdiction.23 A. U.S. Supreme CourtPersonalJurisdictionJurisprudence Any discussion of the concept of personal jurisdiction begins with the general principles handed down by the U.S. Supreme Court in Pennoyer v. Neff24 and InternationalShoe Co. v. Washington.25 Historically, the jurisdiction of courts to

12. Sublett, 2004-NMCA-089, 1 33, 94 P.3d at 853; see infra text accompanying notes 196-199.

13. See infra PartIV.

14. See infra Parts II.C-E, V.A-B.

15. See infra Part V.

16. Dunne & Musacchio, supra note 5, at 386.





17. Id.

18. Id. See generally M.E. OCCHIALINO, WALDEN'S CIVIL PROCEDURE INNEW MEXICO (2d ed. 1988).

19. Dunne & Musacchio, supra note 5, 386."For the purposes ofa jurisdictional analysis, only contacts at with a forum that are related to the underlying causes of action are to be considered." James P. Donohue, Personal Jurisdiction,in I INTERNET LAW AND PRACTICE § 9:4 (2004).

20. Dunne & Musacchio, supra note 5, at 387.

21. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 487 (1985) (holding that jurisdiction was proper over franchisee where he had entered into a contract and "established a substantial and continuing relationship with" fianchisor in the franchisor's state of residence).

22. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295 (1980) (discussing the possibility of establishing jurisdiction "through advertising reasonably calculated to reach the [forum]").

23. Dunne & Musacchio, supra note 5, at 386-87.

24. 95 U.S. 714 (1878), overruledby Shaffer v. Heitner, 433 U.S. 186 (1977).

25. 326 U.S. 310 (1945).

Summer 20051 PERSONAL JURISDICTION renderjudgment is grounded on the courts' power over the defendant's person.26 In Pennoyer,the Supreme Court emphasized that a court has no personal jurisdiction unless the person appears before it,27 is found in the state," is a resident of the state, 29 or has property within the state.3" Therefore, the defendant's presence within the territorial jurisdiction of a court was a prerequisite to the court's rendering of a judgment that would personally bind the defendant. 3 Decades later, the U.S. Supreme Court expanded the Pennoyer personal Shoe. In its ruling in that case, the Supreme jurisdiction principles in International Court held that, as the capias ad respondendum has given way to personal service of summons or other form of notice, due process requires only that in order to subject a defendant to a judgment in personam, 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 notions of fair play and substantial justice."32 ' In the decades following InternationalShoe, federal and state courts have had ample opportunity to shape and explain what kinds of "minimum contacts" are necessary to subject a defendant to the laws and judgments of a given forum. 3 3 To that end, a number ofjurisprudential tests have been fashioned by the courts.34 One such test analyzes whether or not "a defendant targets a particular forum," and whether "the effects of his or her action[s] are felt [so] strongly in" that forum that the "defendant may be called to answer for" those actions there.35 In addition to this "purposeful direction"" or "effects" test,37 there is the notion of "purposeful availment,"3 a theory justifying jurisdiction where a party "reach[es] out beyond one state and create[s] continuing relationships and obligations with citizens of another state., 39 Where such relationships and obligations exist, the party is subject to the regulations and sanctions in that state for the consequences of his or her activities.40 As business and personal relationships permeate state lines, courts have

26. Id. at 316.

27. Pennoyer,95 U.S. at 733.

28. Id.

29. Id. at 723.

30. Id.

31. Id. at 733-34.

32. Int'l Shoe Co., 326 U.S. at 316 (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). A capias ad respondendum is "[a] writ commanding the sheriffto take the defendant into custody to ensure that the defendant will appear in court." BLACK'S LAW DICTIONARY 200 (7th ed. 1999).

33. See, e.g., Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408,415-16 (1984) (holding that a corporation's contacts with a state, including purchasing helicopter parts and training employees there, were not sufficient to subject it to personal jurisdiction within that state); Gray v. Am. Radiator & Standard Sanitary Corp., 176 N.E.2d 761, 442-43 (IIl. 1961) (holding that jurisdiction was proper where the court inferred that defendant manufacturer's commercial transactions resulted in substantial use and consumption of defendant's products in the forum state).

34. OCCHIALINO, supra note 18, § 1-22.

35. Donohue, supra note 19, § 9:5; see also Calder v. Jones, 465 U.S. 783, 787 n.6 (1984).

36. Donohue, supra note 19, § 9:5.

37. See Calder,465 U.S. at 787 n.6.

38. Donohue, supra note 19, § 9:6.

39. BurgerKingCorp. v. Rudzewicz, 471 U.S. 462,473 (1985) (quoting Travelers Health Ass'n v. Virginia, 339 U.S. 643, 647 (1950)).

40. ld.; see also Donohue, supra note 19, § 9:6.

NEW MEXICO LAW REVIEW (Vol. 35 continued to create mechanisms by which a party's minimum contacts may be examined for purposes of establishing jurisdiction over that party.4' B. State Long-Arm Statutes One manner by which individual states have attempted to assert personal jurisdiction over defendants outside their territories is by the promulgation of longarm statutes. 42 Essentially, there are two types of these statutes.43 One type of longarm statute encompasses those found in the states of, among others, Rhode Island 44 and Arkansas, 45 "which permit the exercise ofpersonal jurisdiction to the full extent permitted by the due process clause."46 Consequently, in these jurisdictions, a ' court's analysis "collapses into a single step: evaluating whether personal jurisdiction comports with the requirements of due process under the U.S. Constitution."4' 7 Then, there are long-arm statutes like the ones found in Missouri 4 and New Mexico, 49 which place limits beyond the Due Process Clause on a court's ability to exercise personal jurisdiction. New Mexico, for example, limits the exercise of personal jurisdiction over foreign entities to causes of action that arise from a specific list of situations.5 ' Under the New Mexico Long-Arm Statute,52 a defendant's actions must satisfy

41. See, e.g., World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297-98 (1980) (discussing the "stream of commerce" test); see also Donohue, supra note 19, § 9:7.

42. Dunne & Musacchio, supra note 5, at 387; OCCHIALINO, supra note 18, § 1-17.

43. Dunne & Musacchio, supra note 5, at 387.

44. R.I. GEN. LAWS § 9-5-33 (1997) (stating that defendants outside of the state that "have the necessary minimum contacts with the state.. shall be subject to the jurisdiction of the state... in every case not contrary to the provisions of the constitution or laws of the United States").

45. ARK. CODE ANN. § 16-4-101 (1999) ("The courts of this state shall have personal jurisdiction of all persons, and all causes of action or claims for relief, to the maximum extent permitted by the due process of law clause of the Fourteenth Amendment of the United States Constitution.").

46. Dunne & Musacchio, supra note 5, at 387-88.

47. Id.

48. Mo. REv. STAT. § 506.500 (West 2003).

49. NMSA 1978, § 38-1-16 (1971).

50. Dunne & Musacchio, supra note 5, at 387.

51. NMSA 1978, § 38-1-16(A)(1971).

52. The New Mexico Long-Arm Statute, NMSA 1978, § 38-1-16 (1971), reads as follows:

Personal service of process outside state A. Any person, whether or not a citizen or resident of this state, who in person or through an agent does any of the acts enumerated in this subsection thereby submits himself or his personal representative to the jurisdiction of the courts of this state as to any cause of action

arising from:

(1) the transaction of any business within this state;

(2) the opeation of a motor vehicle upon the highways of this state;

(3) the commission of a tortious act within this state;

(4) the contracting to insure any person, property or risk located within this state at the time of contracting;

(5) with respect to actions for divorce, separate maintenance or annulment, the circumstance of living in the marital relationship within the state, notwithstanding subsequent departure from the state, as to all obligations arising from alimony, child support or real or personal property settlements under Chapter 40, Article 4 NMSA 1978 if one party to the marital relationship continues to reside in the state.

B. Service of process may be made upon any person subject to the jurisdiction of the courts of this state under this section by personally serving the summons upon the defendant outside this state and such service has the same force and effect as though service had been personally made within this state.

PERSONAL JURISDICTION



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