finding that a “forum selection clause materially altered the contract” and was therefore not a part of the contract and citing numerous cases from other jurisdictions
How later courts described this case
- finding that a “forum selection clause materially altered the contract” and was therefore not a part of the contract and citing numerous cases from other jurisdictions
- forum selection clause was not part of computer sale contract where plaintiff paid for the computer before it was shipped and a contract existed before plaintiff opened computer box and found invoice containing the forum selection clause
- ‘‘factors such as the duration of a defendant’s relationship with the forum state must be considered’’
- “[t]he facts required to establish general jurisdiction must be ‘extensive and persuasive.’ ”
Written by the judges who cited it.
The opinion
RAPP, V.C.J.,
concurring in part and dissenting in part:
¶ 11 concur as to Part I — Forum Selection Clause — because I agree with the characterization of these clauses as unilateral “escape hatches” made in Simpson v. Grimes, 849 So.2d 740 (La.Ct.App.2003). 1 I would, therefore, find the forum selection clause unenforceable.
¶ 2 I cannot agree, however, with the Majority concerning its rationale for specific jurisdiction in this matter discussed in Part II — Personal Jurisdiction — of this Opinion, because I find sufficient evidence to support specific jurisdiction. I would hold Defendants were not a passive internet business for the reason they posted a website on the internet offering merchandise for sale, without any qualifying geographical restrictions or distinctions, and intended to invite all who viewed the website to examine and accept their offer of sale. Defendants intended to, and sought to do business wherever the website was viewed and its posted offer accepted. Here, the website was accessed and the offer accepted when the order was placed via telephone. Under such conditions, I believe that internet commerce, such as in the case before us, does involve minimal contacts sufficient to vest specific jurisdiction in this State where the acceptance was made to Defendants’ internet offer and where the merchandise was delivered. This conclusion finds support in the Internet Tax Freedom Act, Pub.L. No. 105-277, Div. C, Title XI, §§ 1100 to 1104, Oct. 21, 1998, 112 Stat. 2681 -719 2 which recognizes the ability of internet businesses to do business in all states where their merchandise is offered for sale because of the moratorium on taxing such sales by states. Further, I would hold that the posting of merchandise on a website and offering to sell without restricting such sales to a specific geographical area is not dissimilar to mass multistate mailings by businesses to residents of other states. In such instances, I am confident that the modern view of extending the Oklahoma long-arm statutes to protect its citizens would then apply. By way of analogy, a child pornography website is a crime where opened and viewed regardless of the location of origin from whence it is disseminated. See 21 O.S. Supp.2004, § 1040.13a.
¶ 3 I must also disagree with the Trial Court’s judgment in favor of Plaintiff. It *499 appears from the record that Plaintiffs testamentary evidence concerning the return of the ordered merchandise and its receipt did not rise to the level of even the preponderance of the evidence. Thus, Plaintiffs proffered evidence failed to sustain the Trial Court’s judgment in favor of Plaintiff and requires reversal.
¶ 4 I would therefore concur as to Part I of the Majority’s Opinion. I would dissent as to Part II, finding that the Trial Court had jurisdiction, but reversing on the merits.
. See also Rogers v. Dell Computer Corp., No. 99,991, Okla. Civ.App. (Feb. 1, 2005) (pet. for cert, pending).
. Title 47 U.S.C.A. § 151 note.