Single internet ad not enough for South Dakota jurisdiction

Best way to take a break from a South Dakota Supreme Court brief that’s consuming most of your time? Perhaps a new decision by the Court that has absolutely nothing to do with your case but interests Internet denizens.

In the decision, handed down Wednesday, the Court applies case law every lawyer recalls from the first year of law school to the advent of the Internet age. It weighs in on how at least some use of the Internet will or won’t lead to getting sued in another state. While saying it was reserving to another day whether buying something over the Internet from a non-South Dakota resident subjects the seller to the jurisdiction of South Dakota courts, the Supreme Court unanimously ruled that an instance of advertising over the Internet was not enough.

Marschke v. Wratislaw resulted when Marschke bought a car from Wratislaw, a Montana resident. Marschke learned of the car via eBay, where Wratislaw included his toll-free telephone number and link to his business website. Marschke did not bid on the car on eBay. Instead, he called Wratislaw and bought the car with a written purchase agreement. When Marschke got the car, though, he decided it wasn’t in the condition he expected. As will happen, that led to him suing Wratislaw, who, in turn, said South Dakota courts had no jurisdiction over him.

The Supreme Court agreed. A lengthy footnote discusses case law on whether use of the Internet can subject a person or business to the jurisdiction of another state’s courts. Still, the Court said it would not address that issue because the actual sale of the car did not occur on the Internet. Instead, it said Wratislaw’s “single act” of posting the car on the Internet wasn’t enough for him to be sued in South Dakota and that any contact with South Dakota created through using the Internet for advertising “is attenuated.”

One cannot help but think that the advertising via eBay is somehwat unique compared to an ongoing ad. The eBay posting expires after a period of time and, thus, more closely resembles the “single act” language of the court than a person or business that advertises the same product or item on the Internet day in and day out. In addition, it would seem that jurisdiction might have existed if the sale had actually occurred via eBay because that the Internet contact was the core the transaction.

As the actual sale in this case did not take place on the Internet we leave for another day a resolution of that issue. We do so as we are to reject “any talismanic jurisdictional formulas[.]

Marschke v. Wratislaw, 2007 SD 125 (Dec. 5, 2007)

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