The facts below are fictitious
(The formatting of this document was changed in the transfer from Word to the Web)
Prepared by a former student in 1999 Perry Z. Binder, J.D. - Instructor
IN THE SUPERIOR COURT OF CLAYTON COUNTY
STATE OF GEORGIA
JONNY MAC,
Plaintiff,
v.
GRAND SLAM, INC.,
Defendant.
.............................................................................. Civil Action: 99-CV-1232-5
BRIEF IN SUPPORT OF MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
COMES NOW DEFENDANT, Grand Slam, Inc., (hereinafter referred to as "Defendant"), and respectfully submits this
Memorandum of Law in support of its Motion to Dismiss for Lack of Personal Jurisdiction.
STATEMENT OF FACTS
Defendant is a California corporation that sells tennis racquets over a web site. Defendant began operating in 1990 and since
then has sold one thousand (1000) racquets. Four (4) of the 1000 racquets sold were to residents of the State of Georgia.
Defendant’s business operations are located in California. Defendant has no physical presence within the State of Georgia.
Defendant is not registered to conduct business within the State of Georgia and has no registered agents, employees or sales
representatives located in Georgia.
Plaintiff Jonny Mac, (hereinafter referred to as "Plaintiff"), is a resident of Clayton County, Georgia. Plaintiff purchased a
Series 9000 tennis racquet from Defendant over its Internet Web site. Prior to Plaintiff’s purchase of the racquet, he viewed
the following statement: "If in the unlikely event of litigation, a law suit is filed, jurisdiction and venue shall lie in Orange
County, California State Court."
Plaintiff was given the option of agreeing or disagreeing to the clause by clicking on either a button stating "I agree" or a
button stating "I disagree." Plaintiff agreed to the forum selection clause and ordered a Series 9000 racquet.
Plaintiff claims that the product he received is defective and that he has incurred damages in the amount of Ten Thousand
Dollars ($10,000). Plaintiff also alleges that the Defendant breached the terms of the contract agreement.
I.
STANDARD ON MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
O.C.G.A. § 9-11-12(b) states, "Every defense, in law or fact,¼shall be asserted in the responsive pleading¼except the
following defenses may, at the option of the pleader, made by motion in writing¼lack of jurisdiction over person¼" In
Williams v. Fuller, 244 Ga. 846, 262 S.E. 2d 135 (1979) the Court states that "jurisdiction of the person is the power of the
Court to render a personal judgment, or to subject the parties in a particular case to the decisions and rulings made by
it¼.the term ‘jurisdiction of the person’ is broad enough to cover lack of jurisdiction of the person resulting from improper
venue."
In the instant case, the Plaintiff asserts the defense of lack of personal jurisdiction pursuant to O.C.G.A. § 9-11-12(b) and
files its pretrial motion with supporting documents.
II.
PURPOSEFUL ACTS MUST BE PERFORMED BY A DEFENDANT TO TIE IT TO THE STATE
O.C.G.A. § 9-10-91(1) provides that courts of the State of Georgia may exercise personal jurisdiction over any nonresident
if that nonresident "transacts any business within this state." This has been interpreted to mean that "purposeful acts must have
been performed by the defendant to tie it to the State, and mere telephone or mail contact with an out-of-state defendant, or
even the defendant’s visits to this state, are insufficient to establish the purposeful activity with Georgia required by the Long
Arm statute." Apparel Resources Int’l. Ltd. v. Amersig Southeast, Inc., 215 Ga. App. 483, 451 S.E.2d 113.
There are no controlling cases in Georgia dealing with the Internet and jurisdiction. In the instant case, the Defendant operates
a web site advertising its product. Similar to mail order, advertisements over the Internet do not employ one-on-one human
contact to persuade potential customers to purchase products. Rather, potential customers choose to view the
advertisements and do not experience pressure techniques from salesmen to persuade them to purchase products. The
customers choose to "take it or leave it" with no pressure involved. In the instant case, the Defendant did not purposefully
contact residents of Georgia to transact business. Rather, the Defendant merely advertised its product to anyone in any state.
"In order for a court to assert general jurisdiction, the Defendant must have ‘continuous and systematic’ contacts with the
forum state." Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416, 104 S.Ct. 1868. In the present case,
the Defendant has not had continuous and systematic contacts with the State of Georgia. Over a period of nearly a decade,
the Defendant has made only four sales to residents of the State of Georgia.
"Contacts must be more than random, fortuitous, or attenuated." Burger King v. Rudzewicz, 471 U.S. 475, 105 S.Ct. 2174.
At most, the contacts that the Defendant had with the State of Georgia were random. Over nine years, the Defendant has
averaged less than one sale per year in Georgia. Of Defendant’s 1000 sales, less than one percent (1%) were to Georgia
residents.
In SF Hotel Co., L.P. v. Energy Investments, Inc. 985 F. Supp. 1032 (D. Kan. 1997), the Defendant operated a web site
advertising its hotel facilities in Florida. The plaintiff, a resident of Kansas filed suit against the defendant in Kansas pursuant
to the long-arm statute of Kansas. The U. S. Court for the 10th District held, on the issue of personal jurisdiction based on
Internet use, that in its "review of the available cases and materials ¼ the likelihood that personal jurisdiction can be
constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over
the Internet. This sliding scale is consistent with well developed personal jurisdiction principles." Id.
In the present case, Defendant’s business operations are located in California. Defendant has no physical presence within the
State of Georgia. Defendant is not registered to conduct business within the State of Georgia and has no registered agents,
employees or sales representatives located in the State of Georgia. The only possible "contacts" Defendant has with Georgia
include the sale of four tennis racquets over a period of nine years to Georgia residents and the maintenance of an Internet
Web site. Defendant’s sporadic sales representing less than one percent (1%) of its total sales since 1990, are neither
substantial nor "continuous and systematic" contacts with the Georgia forum.
III.
ENFORCEMENT OF VENUE SELECTION PROVISIONS IN CONTRACT IS PROPER WHERE PARTIES ARE AWARE OF THOSE CONSIDERATIONS WHEN THEY AGREE TO EXCLUSIVE VENUE
In the present case, the Plaintiff initiated this suit for breach of contract fully aware of the forum selection provision in the
contract. The provision clearly provided that the sole venue for settling disputes between the parties lay in Orange County,
California. As a result of the contract provision, this Court’s jurisdiction has been waived and is limited to the dismissal of
Plaintiff’s action.
Plaintiff and Defendant entered into a contract. Prior to Plaintiff’s purchase of the tennis racquet, the forum selection clause of
the contract was specifically pointed out to him with the choice to either agree or disagree. "‘It is clear under Georgia law that
personal jurisdiction¼may be waived. The United States Supreme Court has recognized a variety of legal arrangements as
representative of consent to personal jurisdiction. Advance consent to the jurisdiction of a particular court in a contract is one
such arrangement.’¼[Cit.]" Regency Mall Assoc. v. G.W.’s Restaurant, 213 Ga. App. 225, 444 S.E.2d 572 (1994). In the
present case, the Plaintiff agreed to the forum selection clause by clicking the "I Agree" button on his computer screen
thereby waiving personal jurisdiction to Orange County, California.
In Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S.Ct. 1907, 1913-14, 32 L.Ed.2d 513 (1972), the United States
Supreme Court determined that forum selection contract clauses "are prima facie valid and should be enforced unless
enforcement is shown by the resisting party to be unreasonable under the circumstances." The Georgia Courts have upheld
this decision. In Brinson v. Martin, 220 Ga. App. 638, 469 S.E.2d 537 (1996), the Georgia Appeals Court held that forum
selection clauses are "prima facie valid and should be enforced¼" In the present case, both the Plaintiff and the Defendant
were aware of and agreed to the exclusive venue clause. The forum selection clause was not "buried" or hidden from the
Plaintiff, rather it was clearly brought to his attention and he agreed to waive jurisdiction to Orange County, California. It is no
more "inconvenient" for the Plaintiff to bring suit in California than it is for the Defendant to travel to Georgia. Both parties
agreed to the venue selection and it should be enforced based on the decisions of the Court in the previous cases.
CONCLUSION
The Defendant is a California corporation. It has been selling tennis racquets for almost ten (10) years. During that time the
Defendant has sold 1000 items. Of the 1000 items sold, four (4) were to Georgia residents. Defendant’s contacts with
Georgia have not been continuous or systematic and do not measure up to those required by the Georgia Long Arm Statute.
Plaintiff and Defendant entered into a contract containing an agreement to settle any disputes that may arise under their
contract in Orange County, California. Plaintiff clearly agreed to this clause. Therefore, Plaintiff’s Complaint should be
dismissed for lack of jurisdiction.
Respectfully submitted this ___ day of April, 1999
BINDER, ADAMS & CARTER
432 Main Street, Suite 322
Jonesboro, Georgia 30233
(770) 325-9875
__________________________
PERRY Z. BINDER, ESQ.
Attorney for the Defendant
Bar # -----