Monthly Archives: May 2009

Holland v. Hurley (CA2 5/19/09)

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NOTE: THIS OPINION HAS BEEN ORDERED DEPUBLISHED

This is a personal-jurisdiction case involving eBay.

Holland, an Arizona resident, bought a car on eBay from Hurley, a Michigan resident. When Holland got the car he was dissatisfied. He sued Hurley in Pima County. Hurley argued that Arizona had no personal jurisdiction over him; the trial court agreed.

So did the Court of Appeals. In a labored analysis, the court held that putting something up for sale on eBay does not itself constitute purposeful contact with Arizona.  This is consistent with earlier cases about interstate sales, of which – except for the eBay angle – this is a fairly typical example.

The court did have to distinguish Uberti v Leonardo, 181 Ariz. 565 (1995), which held that a foreign manufacturer’s extensive nationwide marketing justified jurisdiction in Arizona because the manufacturer otherwise wouldn’t be subject to American law (or so said our Supreme Court). That concern didn’t apply here because Holland could sue Hurley in Michigan.

That is enough to dispose of the case but the court also wanted to write about cases involving eBay and other web sites. There are cases (in other jurisdictions) that draw distinctions based on how much interactivity a site’s owners set it up to offer. They don’t apply here, even if they were the law of Arizona, because Hurley doesn’t own or control eBay.

The mere fact of selling on eBay, then, does not produce jurisdiction. The opinion makes allowances for other cases in which a seller does additional things that show purposeful contacts with Arizona.

In a very brief concurring opinion, Judge Espinoza suggests that Uberti could indeed apply to a domestic seller who uses eBay to sell to all States. “[T]hat would appear to be the whole point of utilizing the boundless eBay cyber marketplace.” He joins because, he says, that conclusion can’t be drawn from the “skeletal facts” available on this appeal. But if that’s the “whole point” of using eBay, what other facts need there be? If the concurrence doesn’t mean that it is basically a dissent, its hard to know what it does mean.

At the end of the opinion the court upheld the trial court’s ruling preventing Holland from doing discovery to supplement those “skeletal facts.” This is not publishable stuff, so it must be proof that the court reads us and agrees that it shouldn’t really be splitting one appeal into more than one opinion.

Howell v. Hodap (CA1 5/12/09)

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This is a res judicata case that discusses the effect a federal action has on a state action.

Hodap was a member of the Flagstaff version of those paramilitary anti-drug police units. He and other officers broke into the Howells’ home but apparently didn’t find enough to support a drug charge. (Mr. Howell shot at the officers, which earned him charges for attempted murder and aggravated assault, which were eventually dismissed.) (The opinion lingers lovingly on the details of the break-in; it tells us, for example, about the “halogen tool on the lip of the security door.” We’re afraid to ask why anybody at the court thought that an important fact.)

The Howells filed suit in Yavapai County for violation of their state constitutional rights, state statutory rights, and various torts. They then filed suit in federal court for violation of federal constitutional rights and statues. The factual allegations in both cases were essentially identical.

In the District Court, the Howells lost summary judgment on some of their counts and lost a jury trial on the others.

The defendants then moved for summary judgment in the state court action based on res judicata and collateral estoppel, which motion the court denied. Some of the plaintiffs’ causes of action were thrown out by other motions; others went to trial. The jury found for defendants on all, except that they awarded Mrs. Howell $10,000 for false arrest.

On appeal , the defendants argued that the trial court should have granted their res judicata motion. The Court of Appeals agreed.

The parties agreed that the two cases involved the same parties and that the federal case had gone to judgment on the merits. That left only one element of res judicata to be decided: whether the suits had involved the same claims and causes of action.

The conclusive effect of a federal case is, the court said, controlled by federal law. In the Ninth Circuit, claims are the same if they “arise out of the same transactional nucleus of facts.” For some reason, the court cites a Ninth Circuit case that sets out other elements as well, then cites still more Ninth Circuit cases to establish that the “transactional nucleus” test is the one that really counts. (How, you ask, does a “transactional nucleus” differ from a “nucleus?” We wish courts would ask – and answer – that sort of question.)

The plaintiffs argued that their state constitutional rights were broader than their federal rights. But res judicata depends not merely on what claims were brought but on what claims could have been brought. The state causes of action could have  been brought as pendant claims in the federal case, so the resolution of that case precluded the state claims as well.

This was an example of those two-headed cases – one opinion that’s published and one that isn’t. The unpublished opinion discusses interesting issues, some tied fairly closely to res judicata; it would be interesting to know why the court split one part of the analysis out as a separate opinion. The memorandum opinion also addresses to some extent the other issues raised by filing two lawsuits, which some lawyers appear to think clever.

Quintero v. Rogers (CA1 5/12/09)

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When courts do something like this, shouldn’t they mention it? Life is confusing enough.

The court issued an opinion on this one in November; we discussed it here. A motion for rehearing resulted in this new opinion, which differs from the old in ways you may spot if you use a magnifying glass (the holdings and dispositions are the same in both.) Nowhere does the court mention that this is its second try. It removed the first opinion from its online Opinion Index instantly (though its control over Lexis, etc., is slower). Maybe the court thinks that nobody except the parties will remember having read it before.  Our problem was that we kinda did, and had to go hunting through the databases to make sure that what our partners say about our mental state wasn’t true after all.

How about a footnote, gang, to let us older folks know that we’re not losing our minds?