Jardim v. Overley, DOCKET NO. A-1073-18T3

• Decision Date: 14 November 2019
• Docket Number: DOCKET NO. A-1073-18T3
• Parties: Joseph JARDIM, Plaintiff-Appellant, v. Michael Edward OVERLEY, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

461 N.J.Super. 367

221 A.3d 593

Joseph JARDIM, Plaintiff-Appellant,

v.Michael Edward OVERLEY, Defendant-Respondent.

DOCKET NO. A-1073-18T3

Superior Court of New Jersey, Appellate Division.

Submitted October 21, 2019

Decided November 14, 2019

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.

The opinion of the court was delivered by

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.com³ 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 available⁴

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 prompted the following exchange:

Mannuzza: I'm a buyer for 38000 if that helps or if we are close

Overley: 40,000 and it's yours.

Mannuzza: Can you call me 908 [rest of phone number deleted]

According to Overley, he spoke to Mannuzza on the phone "shortly thereafter" this e-mail exchange. The parties "reached an agreement pursuant to which, in exchange for the Invicta, [Mannuzza] and/or Jardim would pay [Overley] $40,000 and arrange to have the car transported from California to New Jersey."

In his own motion certification, Jardim recounted that he personally spoke with Overley regarding the Invicta. Jardim recalled in particular "that [they] discussed the fact that the Invicta had a particular version of a variable speed transmission." According to Jardim, throughout their discussion, Overley "continued to give [Jardim] the distinct impression that [Jardim] was buying a pristine car, a car that a collector would be happy to purchase."

Jardim stated he made it clear to Overley that he was in the used car business, and it was his intent to resell the Invicta. According to Jardim, he told Overley he "would be arranging for financing through a New Jersey bank⁶ and that [Overley] would have to work with the bank to make sure that the title and the lien in favor of the bank would be properly done."

In his separate motion certification, Mannuzza stated that Overley "spoke to Scott Roberts at the First Atlantic Credit Union," and told Roberts the Invicta was in "pristine condition."

On May 27, Jardim sent Overley a $500 deposit through Paypal.com. Two days later, on May 29, Jardim and Overley each signed a Bill of Sale, setting forth in minimal detail the terms of their agreement. The bare-bones Bill of Sale appears to be a generic standard form used for car sales, which the parties completed in handwriting, providing a few details such as the car's VIN, its mileage, and the parties' respective addresses. As we have already noted, the Bill of Sale contained no forum selection clause.

Jardim arranged for financing of the purchase through a credit union located in New Jersey. Overley meanwhile, completed the title transfer paperwork in California and mailed it to the credit union. The credit union then mailed a cashier's check for the remaining balance of $39,500 to Overley.

According to Overley, Mannuzza arranged to have a shipping company based in Philadelphia, Pennsylvania, pick up the Invicta in California. The shipper picked up the car on June 20, 2018, and transported it to New Jersey, where it arrived on June 25, 2018. The shipper's Bill of Lading listed a California "origin" address for the seller, and a New Jersey "destination" address for the buyer. Overley asserted that his "only involvement with the transportation process was making the car available" in California to the shipper.

When the Invicta arrived in New Jersey, Jardim discovered it was not in the condition that Overley had advertised. Jardim instead found what he contends are a litany of problems with the vehicle. To address those problems, Jardim claims he expended significant labor and funds, estimated to exceed "tens of thousands of dollars."⁷

In July 2018, Jardim filed a civil action against Overley in the Law Division in Union County. The complaint asserted causes of action for breach of contractual warranty, unjust enrichment, common law fraud, and violations of the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-2 to -210.

In lieu of an answer, Overley moved to dismiss the complaint for lack of in personam jurisdiction. Overley argued he had not engaged in sufficient commercial contacts within the State of New Jersey in this transaction to enable him to be sued here.

After considering the certifications filed by both sides and hearing oral argument, the motion judge granted defendant's motion and dismissed the complaint for lack of jurisdiction. In his six-page written decision, the judge discussed and applied New Jersey case law on personal jurisdiction, including the two cases principally relied upon by plaintiff: Lebel v. Everglades Marina, Inc., 115 N.J. 317, 558 A.2d 1252 (1989), and Halak v. Scovill, 296 N.J. Super. 363, 686 A.2d 1245 (App. Div. 1997).

The judge summarized his jurisdictional analysis with these particular salient observations:

There is no dispute that Overley is not in the business of selling vehicles. There is no evidence in the record that there was a prior relationship or ongoing relationship between the parties outside of the sale of the vehicle. This Court finds that Jardim initiated contact by responding to Overley's internet posting, and although they negotiated the price of the vehicle, this Court finds those negotiations do not

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