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Jardim v. Overley

Superior Court of New Jersey, Appellate Division

November 14, 2019

JOSEPH JARDIM, Plaintiff-Appellant,
v.
MICHAEL EDWARD OVERLEY, Defendant-Respondent.

          APPROVED FOR PUBLICATION November 14, 2019

          Submitted October 21, 2019

          On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-2341-18.

          Mackevich, Burke & Stanicki, attorneys for appellant (James E. Mackevich, on the brief).

          Flaster/Greenberg PC, attorneys for respondent (Jeremy S. Cole, on the brief).

          Before Judges Sabatino, Sumners and Geiger.

          OPINION

          SABATINO, P.J.A.D.

         Retail transactions conducted over the Internet are becoming increasingly prevalent. According to recent statistics from the United States Department of Commerce, buyers and sellers transacted approximately $146.2 billion in retail sales through the Internet during the first quarter of 2019.[1] That represents over eleven percent of all retail sales in the United States, a percentage share that has more than doubled since 2012.[2]

         The present appeal calls for us to revisit the application of traditional constitutional principles of personal jurisdiction and due process in the context of a retail sale contract made over the Internet. The setting involves a California seller of a vintage car to a New Jersey buyer.

         After viewing an Internet posting that advertised the car for sale, the New Jersey customer sent an e-mail to the California owner offering to buy it. The seller responded with a counteroffer, and the parties swiftly agreed on a price. The buyer arranged to have the purchased car shipped from California to New Jersey. When the vehicle arrived here, the buyer discovered it was in poor condition. He sued the seller in the Law Division. The seller moved to dismiss the complaint for lack of in personam jurisdiction. The court granted the motion, and the buyer now appeals.

         We affirm the trial court's dismissal of the complaint for lack of personal jurisdiction over the California seller. We agree the seller in this one-time-sale scenario did not "purposely avail" himself of this State's retail market to a degree that rises to the level of "minimum contacts" needed to support personal jurisdiction under the Due Process Clause.

         The parties' follow-up communications that occurred after they agreed on the car's price were insufficient to create a jurisdictional nexus to New Jersey. In addition, their simple contractual documents lacked a forum selection clause, which could have specified New Jersey as an agreed-upon forum.

         In reaching our conclusion on these facts, we do not foreclose a finding of specific jurisdiction in future Internet retail sale contexts in which more extensive transactional activities connected to this State occur.

         I.

         The events bearing upon the jurisdictional issues are uncomplicated.

         On May 2, 2018, defendant Michael Edward Overley placed a "listing" on the website of Hemmings.com[3] advertising for sale his 1960 Buick Invicta, a vintage automobile, "to whomever was willing to purchase it, wherever they may be." Overley is a lifelong resident of California. Overley did not focus the on-line listing to target purchasers from any specific states. The listing disclosed to would-be buyers that Overley and the Invicta were located in La Quinta, California.

         According to his motion certification, Overley had not previously sold a car through the Hemmings website. He asserted he "[is] not in the business of selling cars or even conducting business through the Internet."

         The advertisement for the Invicta, a convertible, sought to attract car collectors. The seller's description read as follows:

Seller's Description: This is probably the best example of a 1960 Buick Invicta convertible around. It features the famous 401 nailhead engine with 325-hp and Buick's Twin Turbine automatic transmission. The car has power steering and power brakes. Floor it and you will be surprised at the torque this motor produces. The exhaust sound will take you back to your youth. Buick started the fins at the hood and ran them all the way along the car to diagonally mounted tailfins over round taillights. The fender skirts are a beautiful feature as well. The Tampico Red paint is stunning and new. This car really turns heads as it floats down the road. New convertible top fits well and new upholstery has no stains or tears. The white wall tires are new on original wheels and chrome hub caps. This car has many unusual features including an electric clock, adjustable tilt speedometer, speed alarm, and spotlight rear view mirrors. A collector really can't go wrong with this Invicta.
[(Emphasis added).]

         The advertisement came to the attention of plaintiff Joseph Jardim. Jardim is in the used car business, with offices in Roselle, New Jersey. His state of residence is not disclosed in the record.

         The e-mail contacts between the parties only spanned two days. On May 26, 2018, Mark Mannuzza, a business associate of Jardim, responded to Overley's advertisement. Through the use of his iPhone, Mannuzza first made an inquiry by e-mail into the car's availability:

Mannuzza: is the buick still available[4]

         This initial e-mail disclosed that Mannuzza was from Linden, New Jersey, and that he had a "908" telephone area code.[5]

         The next day, May 27, Overley responded:

Overley: Yes.

         Shortly thereafter on that same day, Mannuzza replied, and ...


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