E-Business Law Bulletin November 1999; SECTION: PROCEDURE; Vol. 1; No. 1; Pg. 6

CASE: Jurisdiction:Mink v. AAAA Development LLC


Ruling on an issue of first impression, the Fifth Circuit U.S. Court of
Appeals has held that a passive web site is, by itself, insufficient to
subject an out-of-state defendant to jurisdiction in Texas. Mink v. AAAA
Development LLC, No. 98-20770 (5th Cir., Sept. 17, 1999).

The Fifth Circuit adopted the reasoning of a Pennsylvania court in Zippo
Mfg. Co. v. Zippo Dot Com Inc., 952 F. Supp. 1119, 1124 (WD PA, 1997).
The Zippo court categorized internet web sites as falling into one of
three categories:--a purely passive site that contains information but
no interactive capabilities;--a site that is clearly "doing business"
over the internet by allowing users to enter into contracts, transfer
files or place orders; and--a "middle ground" where the web site allows
the user to exchange some information with the host computer.In the
latter case, the Zippo court found, courts should look to the level of
interactivity and commercial nature of the activity occurring on the web
site.In the instant case, David Mink filed suit in Texas against AAAA
Development LLC and David Middlebrook, accusing them of infringing his
copyright and patent-pending rights in a software program for tracking
retail furniture sales. The defendants moved to dismiss for lack of
personal jurisdiction, and the district court agreed. On appeal, Mink
argued that jurisdiction should lie based on AAAA's maintenance of a web
site accessible in Texas. After reviewing the holding in Zippo and other
internet jurisdiction cases, the Fifth Circuit panel upheld the lower
court." Essentially, AAAA maintains a web site that posts information
about its products and services," said the panel. "While the web site
provides users with a printable mail order form, AAAA's toll-free
telephone number, a mailing address and an electronic mail ("e-mail")
address, orders are not taken through AAAA's web site. This does not
classify the web site as anything more than passive advertisement which
is not grounds for the exercise of personal jurisdiction."Mink was
represented by Michael Maurice Probus Jr. of Austin, TX. The defendants
were represented by Michael Dennis Robbins of Doyle, Rider, Restrepo,
Harvin & Robbins in Houston.