Website "Sale" Into Missouri . . . #18

I was asked a question on our collector club message board about the pretext sale in Missouri that American Plastic tried to hang their venue hat on. I decided to answer it here on the blog for a couple of reasons:

1. To keep my promise not to litigate this case on the message board.

2. I've discovered that this little blog has developed an audience outside of the collector club and wanted to share this amusing story.

I was asked what the Missouri resident purchased off our website in order to 'establish venue' in Missouri.

When I got the 'affidavit' that was 'proof' that we had done business in Missouri, I looked it over very carefully.

At the top were two of those printed notices that fax machines add to the papers that get faxed. The first line said the fax was from American's attorney sending it to a law firm in Kansas City Missouri. The second notice showed the law firm faxing it back to American's attorney. It was done the morning of the day American filed the affidavit in court.

With the info in the two fax lines and the name on the affidavit, I traced the purchase of a Fort Apache Fighter General Odinson to a woman named Monica Hastings.

Here are a few interesting bits:

1. The email address on the PayPal invoice was the email address for an attorney's office in Kansas City, Missouri. The name that made up part of the email address was not Ms. Hastings, it was the attorney.

2. The shipping address was the attorney's office in Kansas City, Missouri.

3. I called the attorney's office and asked to speak to Ms. Hastings. I was told she was not in, but that I could leave a message.

4. The email address used in the PayPal payment is not registered with eBay, so it doesn't belong to a collector that makes regular purchases and has them shipped to a work address.

5. The time stamp on the PayPal payment was 6:22 PM. American Plastic filed their lawsuit the next morning, bright and early.

I was personally amazed and astounded that this person suddenly decided she wanted to collect our action figures less than 24 hours before someone else filed a lawsuit in her home state and district regarding those action figures.

And isn't it a miracle that she works for [or with] an attorney and that American's attorney was able to find this person and get an affidavit from her the very morning that he filed his answer to our motion to transfer venue? Will wonders never cease . . .

This tidbit was not included in the original complaint. The complaint just said that we had transacted business in Missouri. I'm sure American anticipated that we would file a motion to dismiss for lack of jurisdiction and then they could ambush us with this little manufactured factoid.

Here is my response, taken from my reply brief, addressing this earth-shattering bit of info [blocked words are added for clarity]:

"Plaintiff completely misunderstands Defendant’s Motion To Transfer Venue. Relying on the pretext sale, Plaintiff argues that venue is proper upon establishment of personal jurisdiction. As Defendant is not challenging jurisdiction, it does not have to confirm or deny whether it has made legitimate sales into Missouri.

The four factor venue transfer analysis does not rely on the quantity or even existence of sales into the state [of Missouri]. Instead, under [American's] theory, a single pretext sale, in any state, creates ‘universal venue’ where any non-resident can sue any other non-resident at will.

The only convenience here was to [American's] attorney to forum-shop states where he is admitted to practice. When the case in Kansas got complicated, he jumped the border to Missouri and apparently engineered a transaction to facilitate the forum swap. Defendant only asks the case be moved back to the appropriate forum - the District of Kansas."

Thanks to everyone for their continued interest and support. More posts will follow as the drama develops.

Terri

PS: The tabloid title for this post could be "American Plastic caught bootlegging sale to manufacture bogus venue in Missouri."