In Desktop Technologies, a Pennsylvania corporation filed
suit against a Canadian corporation for trademark infringement,
and asserted jurisdiction on the basis of the Canadian
corporation's web site. Like the site in the present case, the
web site in Desktop Technologies contained an e-mail link and
order form (which, like Hang & Shine's lease application, could
not be completed online) and instructions for submitting orders.
The court in Desktop Technologies held that such features did not
subject the defendant corporation to personal jurisdiction in
Pennsylvania. In Grutowski v. Steamboat Lake Guides & Outfitters,
Inc., No. 98-1453, 1998 U.S. Dist. LEXIS 20255 (E.D.Pa. Dec. 21,
1998), the court considered a web site that included an
information request form through which a customer could submit her
name, address, telephone number, fax number, e-mail address, and
comments online. The court concluded that the web site's
information exchanging capabilities did not give rise to
jurisdiction. See also Cybersell, 130 F.3d at 419; Edberg v.
Neogen Corp., 17 F. Supp.2d 104 (D.Conn. 1998) (web site through
which users can learn about products, order product information
through online catalog, e-mail corporate representatives, and
order products through a toll-free telephone number does not
subject Michigan corporation to jurisdiction in
Third, Hang & Shine's web site is not targeted at
Pennsylvania. Plaintiff has not produced any evidence to show
that Hang & Shine actively sought out business in Pennsylvania
through its web site or any other means. Defendant offers the
affidavit of the president of Hang & Shine, Marc Miller, in which
Miller declares that "neither the phone number nor the web site is
directed to Pennsylvania residents," and that Hang & Shine "does
not advertise in any publications or media that specifically
target Pennsylvania, and . . . does not advertise on the television
or radio in Pennsylvania." (Declaration in Support of Ultrasonics'
Motion to Dismiss, at ¶ 5, 6). The record in this case evinces
nothing to support a claim that Hang & Shine aimed its web
advertising at the Commonwealth.
Finally, there is no indication that Hang & Shine's Internet
site gave rise to any significant levels of contact with users in
Pennsylvania. Plaintiff points to the following Hang & Shine
contacts with Pennsylvania: the sale of one Ultrasonic cleaning
machine to a Pennsylvania corporation in 1998 (Declaration of Lisa
Morantz, at ¶ 26); the sale of four videos to Pennsylvania
residents within the last two years, two in response to e-mail
requests; and five e-mail contacts by Pennsylvania residents.
(Letter from Kevin D. McCarthy, Counsel for Hang & Shine, to Alan
H. Bernstein, Counsel for Morantz, Sept. 13, 1999, Exhibit A to
Declaration of William J. Castillo).*fn8 One machine, four
videos and five e-mails do not demonstrate the kind of contacts
contemplated in Zippo, where defendant had consummated 3,000
contracts with residents of Pennsylvania over the Internet, and
other such cases. Hang & Shine is not registered to do business in
Pennsylvania, does not maintain bank accounts or a place of
business here, and does not advertise or employ a sales
representative here. (Declaration in Support of Ultrasonics'
Motion to Dismiss, at ¶ 3, 4, 6). Its contacts appear to be the
kind of "fortuitous," "random," and "attenuated" contacts that the
Supreme Court has held insufficient to warrant the exercise of
jurisdiction. See Burger King Corp. v. Rudzewicz, 471 U.S. 462,
475, 105 S.Ct. 2174, 2183 (1985). Thus, I also conclude that
defendant's contacts with Pennsylvania, over the Internet and
otherwise, are not substantial enough to justify the exercise of
jurisdiction by this Court.
The toll-free number does not expose Hang & Shine to
jurisdiction, either. Many courts have declined to exercise
jurisdiction where a foreign corporation maintained a toll-free
number and a web site. See Shapiro v. Santa Fe Gaming Corporation,
No. 97-6117, 1998 U.S. Dist LEXIS 2488, at *6 (N.D.Ill. Feb. 27,
1998) ("[I]t is well settled that the operation of a toll-free
telephone number and passive, non-advertising website, without
more, is insufficient to satisfy jurisdiction or venue.")
(citations omitted); see also Hurley, 1999 U.S. Dist. LEXIS 13716;
Edberg, 17 F. Supp.2d 104; Graphic Controls, 1997 U.S. Dist.
LEXIS 7448. In Maritz, the court characterized a toll-free number
as far less significant for the purpose of establishing
jurisdiction than a web site, observing that "an 800 number
provides a less rapid and more limited means of information
exchange than a computer with information downloading and printing
capabilities." 947 F. Supp. at 1332-33. Having determined that
Hang & Shine's web site does not constitute sufficient minimum
contacts with Pennsylvania, I conclude also that its maintenance
of a toll-free telephone number does not constitute sufficient
Plaintiff's failure to prove the first element of the
specific jurisdiction test by showing that Hang & Shine had
sufficient minimum contacts with Pennsylvania is fatal to its
effort to establish personal jurisdiction. If plaintiff had
satisfied the first element, it may have been able to establish
the second element, that its claim arises out of the alleged
contacts, because defendant's web site contained the logo at issue
in the trademark dispute. However, plaintiff would not prevail on
the third element, because this Court's exercise of jurisdiction
over Hang & Shine would violate traditional notions of fair play
and substantial justice. "If jurisdiction were [to] be based upon
a defendant's mere presence on the Internet, this would lead to a
defendant's being subjected to jurisdiction on a worldwide basis,
and would eviscerate the personal jurisdiction requirements as
they currently exist." Edberg, 17 F. Supp.2d at 115 (citing
McDonough v. Fallon McElligott, Inc., No. 95-4037, 1996 U.S.
Dist. LEXIS 15139 (S.D.Cal. 1996).
Therefore, defendant's motion to dismiss for lack of
jurisdiction pursuant to Fed R. Civ. P. 12(b)(2) will be
granted. Furthermore, because this Court does not have personal
jurisdiction over defendant Hang & Shine, venue is also improper
here, and I will grant defendant's motion under Fed.R.Civ.P. 12
Plaintiff has failed to carry its burden of proving that Hang
& Shine had sufficient "minimum contacts" with Pennsylvania to
warrant the exercise of personal jurisdiction in a manner
consistent with the Due Process Clause of the Fourteenth
Amendment. The construction of the information superhighway does
not warrant a departure from the well-worn path of traditional
personal jurisdiction analysis trod by the Supreme Court and
innumerable other federal courts, which leads to the exercise of
personal jurisdiction only when a foreign corporation has had
sufficient minimum contacts with the forum state. I conclude
today that a web site alone does not minimum contacts make.
If a district court finds that jurisdiction is lacking, it
shall, "if it is in the interest of justice, transfer such action
or appeal to any other court in which the action could have been
brought at the time it was filed or noticed." 28 U.S.C. § 1631.
Defendant Hang & Shine acknowledges that the "events giving rise
to Morantz's current cause of action occurred substantially in New
York," and because the Western District of New York would have
both subject matter and personal jurisdiction over this case, the
case will be transferred there. See Grutowski, 1998 U.S. Dist.
LEXIS 20255, at *20.
An appropriate Order follows.
AND NOW, this 20th day of December, 1999, upon consideration
of the motion of defendant Hang & Shine Ultrasonics, Inc.
(Document No. 5), to dismiss the complaint for lack of personal
jurisdiction and improper venue pursuant to Fed.R.Civ.P. 12(b)
(2) and (b)(3), and plaintiff's response (Document No. 19), and
having thoroughly reviewed the pleadings and affidavits submitted
therewith, it is hereby ORDERED that defendant's motion is hereby
It is further ORDERED that this action is hereby TRANSFERRED
pursuant to 28 U.S.C. § 1631 to the United States District Court
for the Western District of New York, and that the Clerk of this
Court shall forthwith cause the file and record to be delivered to
the Clerk of the United States District Court for the Western
District of New York.