Zippo, 952 F. Supp. at 1124; see Weber, 977 F. Supp. at 333; Bensusan Restaurant Corp. v. King, 937 F. Supp. 295 (S.D.N.Y. 1996). Personal jurisdiction is not exercised for this type of contact because "a finding of jurisdiction . . . based on an Internet web site would mean that there would be nationwide (indeed, worldwide) personal jurisdiction over anyone and everyone who establishes an Internet web site. Such nationwide jurisdiction is not consistent with personal jurisdiction case law. . . ." Weber, 977 F. Supp. at 333 (quoting Hearst Corp. v. Goldberger, 1997 U.S. Dist. LEXIS 2065, at *2, 1997 WL 97097, at *1 (S.D.N.Y. Feb. 27, 1997)).
Despite plaintiff's contentions, the nature of defendants' contacts with this district falls into the third category consisting of a passive Web Site. The plaintiff claims that the purpose of its Wholesale Rug Web Site was to allow users of the Internet and potential customers to view the various types of oriental rugs sold by them and to provide such users with detailed descriptions of their various rugs. The plaintiff also claims that the web site provides information on the maintenance and care of oriental rugs, an area where the visitor can pose questions to the company regarding oriental rugs, and other advertising for the company. Wholesale Rug's Web Site is essentially an advertisement and that is what plaintiff claims it to be. Because plaintiff alleges that defendant produced an exact reproduction of substantial portions of the Wholesale Rug Web Site, it logically follows that defendants' Web Site is an advertisement as well.
An advertisement on a Web Site is akin to an advertising in a national publication. Weber, 977 F. Supp. at 333; Hearst, 1997 U.S. Dist. LEXIS 2065, 1997 WL 97097, at *10. It is well established in the Third Circuit that advertising in national publications does not form "continuous and substantial" contacts with the forum state. Weber, 977 F. Supp. at 333 (citing Gehling v. St. George's School of Medicine, 773 F.2d 539, 542 (3d Cir. 1985)). Therefore, advertising on a Web Site does not form continuous and substantial contacts with the forum district.
Nevertheless, plaintiff argues that defendants' Web Site is analogous to the middle ground level of contact as articulated by the Eastern District of Missouri in Maritz. In Maritz, the defendant actively solicited potential customers for their Internet service to provide their e-mail addresses so that defendant could in turn setup electronic mailboxes through which they would send advertisements customized to the users' specific interests. Maritz, 947 F. Supp. at 1330. The action was sufficient to establish personal jurisdiction because, inter alia, defendant indiscriminately responded to every Internet user who accessed its web site. Id. at 1330.
Creating a Web Site may be felt nation or even world wide, but without more, it is not an act purposefully directed toward the forum. Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 418 (9th Cir. 1997). In Cybersell, there was very limited interactivity between the defendant corporation and internet users, which included receiving the browser's name and address as well as an indication of interest. Id. at 419. Those who were interested in getting on the World Wide Web were encouraged to e-mail the defendants to learn how. Id. at 416. Signing up for the Cybersell service in Florida was not an option, nor did any Arizona residents do so. Id. at 419. No business transactions occurred either. Id. Therefore, the Web Site of Cybersell of Florida was one of a passive nature and the defendants did not have sufficient contacts to subject themselves to jurisdiction in Arizona. Id. at 420.
The defendants' Web Site is passive like the Web Site in Cybersell. The link provided by the defendant in the case at hand is one that the reader may use to send a message to the defendant via e-mail. There is no option to purchase rugs from defendant, nor have any purchases from the Eastern District been alleged. The e-mail link alone is not enough to establish jurisdiction and plaintiff has not demonstrated that the nature and quality of the commercial activity was sufficient to classify the defendants' Web Site as anything more than passive. Because defendants' Web Site was only passive, defendant does not have sufficient contacts with the Eastern District of Pennsylvania to be susceptible to personal jurisdiction and, therefore, venue is improper.
The question remains whether this court should dismiss this action for improper venue or transfer the action to the Western District of Pennsylvania. The court may "in the interest of justice," pursuant to 28 U.S.C. § 1406(a), transfer the action against the defendants to a district where the action originally could have been brought. Goldlawr, Inc. v. Heiman, 369 U.S. 463, 82 S. Ct. 913, 8 L. Ed. 2d 39 (1962). As defendant Walker resides and does business in the Western District of Pennsylvania, he is amenable to personal jurisdiction in that district. Thus, the Western District is the proper forum for purposes of venue in this action. Therefore, a transfer is ordered to the Western District of Pennsylvania where the action could have been brought.
An appropriate order follows.
AND NOW, this 7th day of April, 1998, upon consideration of Defendants' Motion to Dismiss for Improper Venue or, In The Alternative, For Failure to State a Claim Upon Which Relief Can Be Granted and Plaintiff's Response thereto, it is hereby ORDERED that this action is Transferred to the United States District Court for the Western District of Pennsylvania.
It is further ORDERED that the Clerk of Court is hereby DIRECTED to transfer this action to the United States District Court for the Western District of Pennsylvania.
BY THE COURT:
J. CURTIS JOYNER, J.