Appeal by plaintiff from order entered 18 January 2005 by
Judge G. Wayne Abernathy in Alamance County District Court. Heard
in the Court of Appeals 27 February 2006.
Carl D. Buckland, Sr., pro se, plaintiff-appellant.
Wishart, Norris, Henninger & Pittman, P.A., by Pamela S.
Duffy, for defendant-appellee.
BRYANT, Judge.
Carl D. Buckland, Sr., (plaintiff) appeals from an order
entered 18 January 2005 dismissing his complaint on the ground of
lack of personal jurisdiction. For the following reasons, we
affirm the order.
Facts
In allowing defendant's Motion to Dismiss, the trial court
found as follows:
1. The Plaintiff filed an unverified complaint
in which he alleged the defendant, a citizen
and resident of Tennessee, engaged in
interstate commerce by routinely advertising
goods for sale on [eBay], including a Case
2390 Tractor which the Plaintiff purchased
from the Defendant on April 22, 2004, and a
Case 2590 Tractor which Plaintiff attempted topurchase in May, 2004. Plaintiff transferred
by wire a $2000.00 deposit at a cost of
$119.00 and has not received the tractor nor
refund. For purposes of this decision only,
the [c]ourt assumes these allegations are
true.
2. Defendant filed a Motion to Dismiss
accompanied by an affidavit from which the
[c]ourt finds that the Defendant is a resident
of Tennessee that he has never lived or worked
in North Carolina, nor has he had an office or
place of business in North Carolina, that he
has sold goods on [eBay] but has not targeted
any particular state and that he had sold one
tractor (Case 2390) to the Plaintiff which is
the only transaction he has completed in North
Carolina.
3. Prior to the controverted sale and
attempted purchase of the Case 2590 Tractor,
the Defendant's only contacts with North
Carolina were the use of the internet auction
site, [eBay], and the sale of the Case 2390 to
the Plaintiff. There is no evidence that the
Defendant delivered the tractor to the
Plaintiff in North Carolina nor that he came
to North Carolina to consummate the sale.
Defendant's auction originated in Tennessee
and the [c]ourt finds that Plaintiff's bid,
although made in North Carolina, was accepted
in Tennessee.
4. Although the Plaintiff's response states
that jurisdiction is conferred by NCGS
1-75.4(c) the [c]ourt finds that no evidence
was offered to show that unsolicited bulk
electronic mail was sent into the State by
computer services of an electronic mail
service provider in violation of the policies
of the electronic mail service provider.
Notwithstanding this, the [c]ourt finds that
the Plaintiff has alleged an injury to
property in this State. The [c]ourt further
finds that the Defendant's act of originating
the [eBay] auction occurred outside of this
State for the purpose of solicitation in this
and all other states.
. . .
THEREFORE, BASED UPON THE FOREGOING FINDINGS
OF FACT, THE COURT CONCLUDES AS A MATTER OF
LAW that even if the Plaintiff's evidence
demonstrates a prima facie compliance with
NCGS 1-75.4(4)(a) or (c), the Findings of Fact
shown by the Plaintiff's evidence, including
the placement of an internet advertisement and
one prior sale, do not constitute sufficient
minimum contacts with North Carolina to comply
with the due process clause of the United
States Constitution.
_________________________
In deciding whether jurisdiction may be exercised over a
nonresident defendant, the court must determine: (1) whether a
statutory basis for exercise of jurisdiction exists, and if so, (2)
whether the exercise of jurisdiction violates due process of law.
Dillon v. Numismatic Funding Corp., 291 N.C. 674, 675, 231 S.E.2d
629, 630 (1977). The burden of proving the existence of grounds
for the exercise of personal jurisdiction is on the plaintiff.
Murphy v. Glafenhein, 110 N.C. App. 830, 834, 431 S.E.2d 241, 243
(1993).
Plaintiff argues jurisdiction over defendant is conferred by
N.C. Gen. Stat. § 1-75.4(4)(c). This statute permits the exercise
of jurisdiction “in any action claiming injury to person or
property within this State arising out of an act or omission
outside this State by the defendant” and where “[u]nsolicited bulk
commercial electronic mail was sent into or within this State by
the defendant using a computer, computer network, or the computer
services of an electronic mail service provider in contravention of
the authority granted by or in violation of the policies set by the
electronic mail service provider.” N.C.G.S. § 1-75.4(4)(c) (2005). In the instant case, plaintiff made no evidentiary showing
that defendant misused an electronic mail service. Moreover,
plaintiff has not established that the exercise of jurisdiction
would not violate due process. The trial court found no evidence
showing unsolicited bulk mail was sent into this state by an
electronic mail service provider in violation of the provider's
policies. The trial court did find that even if jurisdiction
could be asserted pursuant to the provisions of N.C. Gen. Stat. §
1-75.4, the placement of an internet advertisement and one prior
sale do not constitute sufficient minimum contacts with North
Carolina to comply with the due process requirements of the due
process clause of the United States Constitution.
The facts of this case are remarkably similar to those of
Stallings v. Hahn, 99 N.C. App. 213, 215-16, 392 S.E.2d 632, 633-34
(1990). In that case, the only contacts between the defendant and
the forum state were that plaintiff answered an ad placed in a
national magazine, made telephone calls to the out-of-state
defendant, and mailed a cashier's check to the defendant. This
Court held that the North Carolina court lacked
in personam
jurisdiction over the defendant because the defendant lacked
sufficient contacts with this state to justify exercise of
jurisdiction over him.
Here, the only contacts were the solicitation for bids on
eBay, e-mails exchanged between the parties, and the wire transfer
of money to defendant. In his affidavit in opposition to the
motion, defendant states he has never lived in North Carolina,never had an office or place of business in North Carolina, never
worked in North Carolina, and never shipped any goods to North
Carolina. In soliciting for bids on eBay, defendant does not
target any particular state. When plaintiff purchased the first
tractor from him, plaintiff went to Tennessee to take delivery of
the tractor. Plaintiff is the first and only resident of North
Carolina to whom defendant sold any goods on eBay.
“The standard of review of an order determining personal
jurisdiction is whether the findings are supported by competent
evidence in the record . . . .”
Better Bus. Forms, Inc. v. Davis,
120 N.C. App. 498, 500, 462 S.E.2d 832, 833 (1995). “If the[y] .
. . are supported by competent evidence, they are conclusive on
appeal despite evidence to the contrary.”
Cameron-Brown Co. v.
Daves, 83 N.C. App. 281, 285, 350 S.E.2d 111, 114 (1986) (citing
J.M. Thompson Co. v. Doral Mfg. Co., 72 N.C. App. 419, 424, 324
S.E.2d 909, 912-13 (1985)). We find the evidence recited above is
competent evidence to support the trial court's determination. The
order allowing the motion to dismiss for lack of personal
jurisdiction is therefore affirmed.
Affirmed.
Chief Judge MARTIN and Judge GEER concur.
Report per Rule 30(e).
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