Louis Vuitton Malletier, S.A. v. Joseph Mosseri

Case: 12-12501 Date Filed: 12/02/2013 Page: 1 of 39

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 12-12501
________________________

D.C. Docket No. 0:10-cv-61839-JEM

LOUIS VUITTON MALLETIER, S.A.,
a foreign business entity,

Plaintiff-Appellee,

versus

JOSEPH MOSSERI,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
________________________

(December 2, 2013)
 Case: 12-12501 Date Filed: 12/02/2013 Page: 2 of 39

Before HULL and MARTIN, Circuit Judges, and HINKLE, ∗ District Judge.

HULL, Circuit Judge:

In this federal trademark infringement case, appellant Joseph Mosseri

appeals the district court’s denial of his motion under Federal Rule of Civil

Procedure 60(b)(4) to vacate a default judgment entered against him. Appellant

Mosseri does not contest that he was personally served with the lawsuit, that he

received the motion for default judgment, and that he did not respond at all.

Rather, over six months after service, Mosseri filed a Rule 60(b)(4) motion

contending that the judgment is void because the district court in Florida lacked

jurisdiction over his person. After careful review, and with the benefit of oral

argument, we conclude that the district court did not commit reversible error in

denying Mosseri’s motion, and we affirm.

I. FACTS AND PROCEDURAL HISTORY

The plaintiff-appellee, Louis Vuitton Malletier, S.A. (“Louis Vuitton”) sells

high-end handbags and similar products. Louis Vuitton operates retail outlets and

boutiques in the Southern District of Florida and elsewhere. Unauthorized

websites advertised purported Louis Vuitton bags, including in Florida. The

sample advertised price was $159. Louis Vuitton knew the bags were counterfeit

∗
Honorable Robert L. Hinkle, United States District Judge for the Northern District of
Florida, sitting by designation.
2
 Case: 12-12501 Date Filed: 12/02/2013 Page: 3 of 39

but did not know who was selling them. The procedural history shows how Louis

Vuitton discovered defendant Joseph Mosseri was selling the counterfeit bags.

A. The Original Complaint Against Unidentified Defendants

In 2010, in the Southern District of Florida, Louis Vuitton filed a complaint

against unidentified defendants who were operating websites under the domain

names “pendoza.com” and “lazata.com.” Louis Vuitton’s original complaint stated

that Louis Vuitton manufactured and distributed throughout the world, including

within the Southern District of Florida, high quality luggage, belts, handbags, and

wallets under federally registered trademarks. According to the original complaint,

through the use of the “pendoza.com” and “lazata.com” websites, the unidentified

defendants had sold counterfeit and trademark infringing luggage, belts, handbags,

and wallets to consumers in the Southern District of Florida.

Louis Vuitton brought claims for trademark counterfeiting and infringement

under 15 U.S.C. § 1114 and for false designation of origin under 15 U.S.C.

§ 1125(a). Louis Vuitton requested: (1) a permanent injunction; (2) an order that

the defendants’ websites be permanently disabled; and (3) actual damages, trebled

or statutory damages under 15 U.S.C. § 1117(c)(2) in the amount of $2,000,000

“per each counterfeit Louis Vuitton Mark used and product sold.”

B. Expedited Discovery to Identify Website Operators

3
 Case: 12-12501 Date Filed: 12/02/2013 Page: 4 of 39

Louis Vuitton requested expedited discovery to identify the website

operators. Louis Vuitton filed an affidavit of Robert Holmes, a private

investigator. Holmes attested that, in February 2010, he purchased a counterfeit

Louis Vuitton “cosmetic pouchette” from “lazata.com.” Holmes received this item

in a package bearing a return address of “Pierre, LAZ Shipping, 1204 Ave U,

Brooklyn, NY 11229.” 1 By exchanging electronic information with the website,

Holmes identified: (1) the website’s IP address as being issued by CSC Holdings,

Inc.; and (2) HCI Fashion, Inc. of Brooklyn, New York as being the payee,

although Holmes was unable to tell if this entity operated the website or was just a

third party payment processor. From New York corporate records, Holmes learned

the incorporator of HCI Fashion was “Inna Orel” and HCI Fashion’s address was

1204 Avenue U, Brooklyn, New York 11229. An entity known as “Mail Drop

Corp.” owned that address.

The district court granted Louis Vuitton’s requests to subpoena records

from: (1) CSC Holdings; (2) Inna Orel; (3) Mail Drop Corp.; (4) United Parcel

Service of America, Inc. (“UPS”); and (5) Verizon New York, Inc. (“Verizon”).

Louis Vuitton also filed another affidavit from its investigator Holmes

describing a second Internet purchase. In October 2010, Holmes purchased a

Louis Vuitton branded canvas billfold from the “pendoza.com.” website. UPS

1
Louis Vuitton does not argue that Holmes purchased or received the item in Florida.
4
 Case: 12-12501 Date Filed: 12/02/2013 Page: 5 of 39

delivered the billfold to Holmes in Wilton Manors, Florida, and the payee

information he received included a Verizon telephone number, which was (718)

332-0085. As discussed later, Verizon records showed who owned that number.

The package had the same return address as the one on the package received after

Holmes’s February 2010 purchase from “lazata.com.”

C. The First Amended Complaint Against Chera and Zakmo Corporation

Through this expedited discovery, Louis Vuitton initially concluded that the

operator of “lazata.com” and “pendoza.com” was Raymond V. Chera, who was

affiliated with Zakmo Corporation. Louis Vuitton identified Chera based on Mail

Drop Corp. records showing that Chera rented the mailbox registered to HCI

Fashion. Louis Vuitton amended its complaint to name “Raymond V. Chera” and

“Zakmo Corp.” as defendants.

D. Further Investigation and Identification of Defendant Joseph Mosseri

Louis Vuitton also received records from Verizon. The Verizon documents

showed that JEM Marketing, Inc. (“JEM Marketing”), a corporation with the

address 2167 East 21st Street, Brooklyn, New York, 11229, owned the phone

number(718) 332-0085—associated with “pendoza.com” and the payee in the

billfold purchase. Verizon identified (718) 332-0085 as a land line number for

JEM Marketing.

5
 Case: 12-12501 Date Filed: 12/02/2013 Page: 6 of 39

The Verizon records also showed that a second number—(917) 669-2544—

was associated with this JEM Marketing account. Another Louis Vuitton

investigator, Linda Kadluboski, testified that this second phone number—(917)

669-2594—was listed “to Joseph Mosseri at 2167 East 21st Street in Brooklyn,

New York.”

Chera’s attorney contacted Louis Vuitton’s attorney and admitted that Chera

had rented a mailbox for the purposes of sending goods marketed on the

“pendoza.com” and “lazata.com” websites. However, Chera’s attorney stated that

Chera had done so on behalf of another person, Joseph Mosseri. Chera’s attorney

provided Louis Vuitton with Mosseri’s personal cellular telephone number of

(917) 669-2544, which was the same as the second number associated with JEM

Marketing’s Verizon account.

Louis Vuitton then obtained New York state records showing JEM

Marketing’s “Chairman or Chief Executive Officer” was Joseph Mosseri. In sum,

Louis Vuitton’s investigation revealed that the payee JEM Marketing and its CEO

Mosseri were using the same phone number—(917) 669-2544—and same

address—2167 East 21st Street, Brooklyn, New York.

E. The Second Amended Complaint Against Joseph Mosseri

Having concluded that it was Mosseri, not Chera, who was actually behind

the websites “pendoza.com” and “lazata.com,” Louis Vuitton dismissed Chera as a

6
 Case: 12-12501 Date Filed: 12/02/2013 Page: 7 of 39

defendant and filed a motion for leave to file a second amended complaint (the

“complaint”) adding Mosseri as a defendant. The district court granted the motion,

and Louis Vuitton filed the complaint against Mosseri.

The complaint repeated the same factual allegations and claims as those in

the original complaint. Louis Vuitton also alleged that defendant Mosseri engaged

in the above-described illegal counterfeiting and infringing activities knowingly

and intentionally or with reckless disregard or willful blindness to Louis Vuitton’s

rights.

This time, the complaint included new allegations relevant to jurisdiction

over Mosseri. For example, Louis Vuitton’s complaint alleged that the district

court may “properly exercise personal jurisdiction over Defendants since all

Defendants directly target business activities towards consumers in Florida and

cause harm to Louis Vuitton’s business within this District through at least the

fully interactive Internet websites operating under the Subject Domain Names.”

The complaint defined “Subject Domain Names” to include “lazata.com” and

“pendoza.com.”

The complaint also alleged that Mosseri resides in New York but “conducts

business throughout the United States, including within this Judicial District,

through the operation of the fully interactive commercial websites operating under

the Subject Domain Names.”

7
 Case: 12-12501 Date Filed: 12/02/2013 Page: 8 of 39

Moreover, the complaint alleged that “Defendants engage in the offering for

sale and sale of counterfeit and infringing Louis Vuitton branded products within

this Judicial District through multiple fully interactive commercial websites

operating under at least the Subject Domain Names” and “have purposefully

directed their illegal activities towards consumers in . . . Florida through the

advertisement, offer to sell and sale of counterfeit . . . goods into the State.” In

another paragraph, the complaint stated that Louis Vuitton had determined that

Mosseri and his co-defendants “are promoting and otherwise advertising,

distributing, selling and/or offering for sale counterfeit products, including at least

handbags and wallets, using trademarks which are exact copies of the Louis

Vuitton Marks (the ‘Counterfeit Goods’).” Later in the complaint, Louis Vuitton

reiterated that Mosseri was conducting “counterfeiting and infringing activities and

causing harm at least within this Judicial District and elsewhere throughout the

United States.”

The complaint added that the defendants’ counterfeit goods “are of a quality

substantially different than that of Louis Vuitton’s genuine goods. Despite the

nature of their Counterfeit Goods and the knowledge they are without authority to

do so, Defendants are actively using, promoting and otherwise advertising,

distributing, selling and/or offering for sale substantial quantities of their

8
 Case: 12-12501 Date Filed: 12/02/2013 Page: 9 of 39

Counterfeit Goods with the knowledge that such goods will be mistaken for the

genuine high quality products offered for sale by Louis Vuitton.”

F. Mosseri’s Failure to Respond

A summons was issued for Mosseri on May 16, 2011 and returned executed

on May 24, 2011. The process server’s affidavit averred that, on May 19, 2011 at

8:57 PM at Mosseri’s Brooklyn, New York address, he served the complaint and a

summons on Mosseri. The complaint, served on Mosseri, was signed by Louis

Vuitton’s retained attorney in Florida, Stephen M. Gaffigan.

Mosseri did not respond to the complaint. On June 8, 2011, Louis Vuitton’s

attorney, Gaffigan, received a telephone call from David Schrader, who stated that

he was a potential counsel for Mosseri and acknowledged that a response to the

complaint was due June 9. Schrader informed Gaffigan that Mosseri needed a

two-week extension until June 23 to respond to the complaint, to which Gaffigan

agreed. However, Schrader never entered an appearance as counsel, and Mosseri

never filed for an extension nor answered the complaint.

As a result, on June 27, 2011, the clerk of the district court in Florida signed

an order stating that Mosseri was in default for failure to answer or otherwise plead

to the complaint against him. See Fed. R. Civ. P. 55(a) (“When a party against

whom a judgment for affirmative relief is sought has failed to plead or otherwise

defend, and that failure is shown by affidavit or otherwise, the clerk must enter the

9
 Case: 12-12501 Date Filed: 12/02/2013 Page: 10 of 39

party’s default.”). The clerk of the district court mailed a copy of the default to

Mosseri in New York.

G. Louis Vuitton’s Motion for Default Judgment

On August 1, 2011, Louis Vuitton filed its motion for a default judgment

and attached supporting evidence. See Fed. R. Civ. P. 55(b)(2). Louis Vuitton

requested: (1) a default judgment and a permanent injunction; (2) orders requiring

the domain names of the websites “lazata.com” and “pendoza.com” be made

inoperable; (3) $324,000.00 in statutory damages under 15 U.S.C. § 1117(c); (4)

$9,135.00 in attorney’s fees under 15 U.S.C. § 1117(a)–(b); (5) $2,567.50 in

investigative fees under 15 U.S.C. § 1117(a); (6) $504.10 in costs; and (6)

prejudgment interest.

As to statutory damages, Louis Vuitton relied on 15 U.S.C. § 1117(c), which

provides that a plaintiff may elect to recover, instead of actual damages and profits,

an award of statutory damages of “not less than $1,000 or more than $200,000 per

counterfeit mark per type of goods or services sold, offered for sale, or

distributed.” 15 U.S.C. § 1117(c). When the court determines that the trademark

violation was “willful,” the statute authorizes statutory damages of “not more than

$2,000,000 per counterfeit mark per type of goods or services sold, offered for

sale, or distributed.” Id. at § 1117(c)(2).

10
 Case: 12-12501 Date Filed: 12/02/2013 Page: 11 of 39

In addition, Louis Vuitton claimed that: (1) Mosseri’s infringing activities

were willful; (2) Mosseri had sold two types of goods—handbags and wallets; and

(3) these goods bore nine different federally registered Louis Vuitton trademarks.

Louis Vuitton asked the district court to “start with the baseline statutory minimum

award of $3,000.00, treble it to reflect Defendant’s willfulness, and then double the

product for the purpose of deterrence.” 2 Louis Vuitton stated that “[t]he result

would be $18,000.00 per registered Louis Vuitton Mark counterfeited (9) per type

of goods sold (2) for a total award amount of $324,000.00 in statutory damages.”

Louis Vuitton’s evidence included, inter alia: (1) an affidavit by Louis

Vuitton’s in-house counsel, Nikolay Livadkin, discussing its trademarks and how

the goods purchased from the websites “were non-genuine Louis Vuitton

products”; (2) copies of the Louis Vuitton registered trademarks; (3) another

affidavit from investigator Holmes summarizing his 2010 purchases, explaining

how those purchases led him to Mosseri, and reporting his investigation cost

$2,567.50; (4) images captured from the websites; (5) receipts and shipping

documents from Holmes’s purchases; (6) pictures of Holmes’s purchases; (7) the

New York state record on JEM Marketing; (8) an affidavit by Louis Vuitton’s

2
Louis Vuitton did not cite any authority for its position that $3,000 was the “baseline
statutory minimum award.” In fact, the statute says otherwise, making the baseline minimum
award $1,000. 15 U.S.C. § 1117(c). Nevertheless, the district court did not acknowledge this
discrepancy, and Mosseri does not appeal it here.

11
 Case: 12-12501 Date Filed: 12/02/2013 Page: 12 of 39

attorney, Gaffigan, explaining the amount of costs and attorneys’ fees requested;

(9) the Verizon records; (10) the process service firm’s receipt [; and (11) copies of

the subpoenas to record providers.3

H. Default Judgment

Mosseri does not now dispute the fact that he received but did not respond to

Louis Vuitton’s August 11 motion for a default judgment. On August 31, 2011,

the district court entered a default judgment against Mosseri.

In the default judgment, the district court issued a permanent injunction

restraining defendant Mosseri from, inter alia: (1) “manufacturing or causing to be

manufactured, importing, advertising, or promoting, distributing, selling or

offering to sell counterfeit and infringing goods using” the Louis Vuitton

trademarks listed in the complaint; (2) using Louis Vuitton’s trademarks “in

connection with the sale of any unauthorized goods”; (3) “using any logo, and/or

layout which may be calculated to falsely advertise” Mosseri’s services or products

“as being sponsored by, authorized by, endorsed by, or in any way associated

with” Louis Vuitton; (4) “falsely representing” himself as being associated with

Louis Vuitton; (5) creating new entities to circumvent the district court’s

injunction; and (6) using Louis Vuitton trademarks on the Internet. The district

3
At the same time it filed its default judgment motion against Mosseri, Louis Vuitton
voluntarily dismissed with prejudice its claims against Zakmo Corp. and all John Doe
defendants.

12
 Case: 12-12501 Date Filed: 12/02/2013 Page: 13 of 39

court ordered that the websites at issue be transferred to Louis Vuitton’s control

and that various Internet administrative entities give effect to the transfer.

The district court awarded this monetary relief against Mosseri: (1)

$324,000.00 in statutory damages; (2) $9,135.00 in attorney’s fees; (3) $2,567.50

in investigative fees; (4) $504.10 in costs; and (5) prejudgment interest. Louis

Vuitton’s attorney Gaffigan personally sent a copy of the final default judgment to

Mosseri via email. Gaffigan also sent a copy to Mosseri by regular mail.

I. Mosseri’s Motion to Vacate the Default Judgment

More than six months after being served with the complaint and more than

three months after the default judgment, defendant Mosseri, through Florida

counsel, filed a motion to vacate the default judgment under Rule 60(b)(4) and

attached Mosseri’s affidavit.4 Mosseri’s motion, filed on December 13, 2011,

argued that the default judgment should be vacated because: (1) he was never

served; and (2) the district court in Florida lacked personal jurisdiction over him.

In his half-page affidavit, Mosseri stated in full:

1. I was never served with a copy of the Florida lawsuit. I
found out about the lawsuit after searching for my name on the
internet. I have blondish hair, weigh about 195 pounds and am about
6’2” tall.

4
Mosseri labeled his filing a “verified motion,” but there was no verification as to the
allegations in the motion. Rather, Mosseri filed an unsworn “Declaration” under 28 U.S.C.
§ 1746(2) which is treated as evidence under that section. For ease of reference, we refer to this
as Mosseri’s affidavit.
13
 Case: 12-12501 Date Filed: 12/02/2013 Page: 14 of 39

2. I reside in New York, not Florida. I do not conduct any
business in Florida.

3. I am not affiliated with the websites lazata.com,
pendoza.com, besela.com, bessella.com, besella.com or
bonntique.com.

Despite this affidavit saying he was not served, Mosseri ultimately withdrew

that claim. Notably too, Mosseri’s motion and affidavit did not deny, much less

rebut, the complaint’s detailed allegations that substantial quantities of counterfeit

Louis Vuitton goods and products were being sold through the “pendoza.com” and

“lazata.com” websites including to Florida consumers. Instead, Mosseri’s

contention was he was “not affiliated” with those websites.

J. Louis Vuitton’s Response to the Motion to Vacate

On December 30, 2011, Louis Vuitton responded to Mosseri’s motion to

vacate and filed affidavits from the process server and investigators Holmes and

Kadluboski. Investigator Kadluboski’s affidavit indicated that the telephone

number provided by Chera—(917) 669-2544—belonged to Mosseri. Holmes’s

affidavits were the earlier ones recounting his two 2010 purchases and how his

investigation and subpoenaed records had led him to Mosseri.

Louis Vuitton emphasized the record already established that Mosseri was in

fact served. Nevertheless, in a second affidavit, the process server again averred

that he personally served process on Mosseri and added that the individual served

identified himself as “Joseph Mosseri.” The process server’s affidavit stated that
14
 Case: 12-12501 Date Filed: 12/02/2013 Page: 15 of 39

the individual served identified himself as Joseph Mosseri. Louis Vuitton stressed

that an individual claiming to represent Mosseri contacted Louis Vuitton’s attorney

on June 8, 2011 requesting an extension of time to answer the complaint. Louis

Vuitton reasoned that it was “odd that a man who claims he was never served . . .

somehow managed to have counsel contact Louis Vuitton’s counsel the day before

his answer to the . . . Complaint was due and request an extension.” 5

As to jurisdiction, Louis Vuitton asserted that personal jurisdiction existed

over Mosseri under Florida’s long-arm statute because Mosseri committed tortious

acts—trademark infringement—in Florida. The tortious acts in Florida were: (1)

Mosseri’s operation of “fully-interactive Internet websites” on which Florida

customers could view, buy, and pay for products bearing counterfeits of the Louis

Vuitton trademarks; and (2) the fact that “Mosseri, through his affiliated websites,”

actually sold and shipped counterfeit Louis Vuitton goods into the Southern

District of Florida.

K. District Court Evidentiary Hearing on Motion to Vacate

The district court set an evidentiary hearing for January 26, 2012, which was

continued to February 28. Five days before that date, the parties filed a joint

motion to cancel the evidentiary hearing and stated that Mosseri was dropping his

5
In his reply in support of his motion to vacate, Mosseri, through Florida counsel,
Matthew Sarelson, conceded that it was true Mosseri’s earlier attorney in New York had
contacted Louis Vuitton’s attorney about an extension.
15
 Case: 12-12501 Date Filed: 12/02/2013 Page: 16 of 39

argument about having never been served. The district court scheduled a new

evidentiary hearing for March 16. Four days before the hearing, Mosseri’s Florida

attorney, Sarleson, who had filed the motion papers and affidavit, withdrew and the

hearing was continued again.

The district court held the evidentiary hearing on March 30. Mosseri’s new

attorney, Santucci, came to the hearing, but Mosseri did not. Mosseri’s attorney

did not offer any evidence. Louis Vuitton called two witnesses: investigators

Holmes and Kadluboski. As noted above, Mosseri’s affidavit had not denied the

complaint’s allegations that counterfeit Louis Vuitton goods and products were

being sold through the websites to consumers in Florida. The focus of the hearing

was whether Mosseri was connected to the websites.

Holmes testified that Louis Vuitton retained his firm to investigate the

websites “pendoza.com” and “lazata.com.” He logged on to the Internet via a

proxy server located in Florida and accessed “pendoza.com.” Afterwards, he

“interacted with the website” by “click[ing] on specific buttons for clients

trademarks, items that bore our clients trademarks and retriev[ing] data with items

with those trademarks on them.” Holmes selected goods bearing Louis Vuitton

trademarks and actually ordered an item from the website “pendoza.com.” Holmes

received the item at his firm’s address in Wilton Manors, Florida. Holmes

recounted the investigation after his purchase. Specifically, his: (1) receiving a

16
 Case: 12-12501 Date Filed: 12/02/2013 Page: 17 of 39

telephone number—(713) 322-0085—linked to the payee on the Florida

transaction; (2) linking the telephone number—(713) 322-0085—to JEM

Marketing; and (3) reviewing New York records to determine that Joseph Mosseri

is the CEO of JEM Marketing. 6

Mosseri’s attorney asked whether Holmes “received any e-mail or letter

directly from Joseph Mosseri.” Holmes responded that he had “received an e-mail

from the website confirming [his] order” and that he could not “tell you sitting here

that Joseph Mosseri was or was not the person that pressed the button on that

particular e-mail.” Mosseri’s attorney asked whether Holmes uncovered evidence

“of any sort that Joseph Mosseri knew about the Wilton Manors[, Florida]

transaction.” In response, Holmes pointed out that his firm “paid Mr. Mosseri.”

Next, investigator Kadluboski testified that Louis Vuitton hired her to

conduct a background investigation on Mosseri. Kadluboski was previously a

federal agent with the U.S. Customs Service and Department of Homeland

Security for 25 years. As a result of her investigation, she “was able to associate”

Mosseri with the telephone number of (917) 669-2544. She testified that the

number (917) 669-2544 was “listed to Joseph Mosseri at 2167 East 21st Street in

6
During cross-examination by Mosseri’s attorney, Holmes testified he had “been
investigating Joseph Mosseri for eight years” and he did “not recall how many purchases that
Joseph Mosseri shipped to us in Florida.” Although Holmes could not recall other specific
transactions linking Mosseri to Florida, he testified that he “would be able to identify other
transactions if I were able to look through my records.”

17
 Case: 12-12501 Date Filed: 12/02/2013 Page: 18 of 39

Brooklyn, New York.” As the Verizon records showed, that same phone number

and same address are also shown on the Verizon account of JEM Marketing.

During cross-examination, Kadluboski noted that her investigation did not reveal

that Mosseri had any addresses in Florida.

After these two witnesses testified, the district court heard arguments from

Mosseri’s attorney. When the district court inquired as to why Mosseri’s selling a

good directly into Florida was not enough for personal jurisdiction, Mosseri’s

attorney stressed that Louis Vuitton manufactured the sale by directing its

investigator to order the product and have it shipped to him in Florida.

The district court made certain legal conclusions. The district court stated

“it would seem to me that if there is a sale to somewhere in the world, there’s

jurisdiction” in that place (i.e., where the good was sold and delivered). The

district court rejected Mosseri’s “manufactured sale” argument, pointing out that

the only way to determine whether a good offered for sale on the Internet was

genuine or counterfeit was for Louis Vuitton to order and obtain the good. The

district court commented that “how they get it, I don’t think that matters.”

Next, the district court made certain findings. It concluded that the evidence

showed Holmes ordered and received a counterfeit Louis Vuitton billfold in

Florida, stating “they ordered it, they got it, it was delivered to them here, in the

Southern District of Florida.” The district court found that Mosseri, through his

18
 Case: 12-12501 Date Filed: 12/02/2013 Page: 19 of 39

website, was “soliciting business wherever the Internet goes” including in Florida.

It found that Holmes had ordered and received in Wilton Manors, Florida “the

bag,” and paid “a company that is controlled by Mr. Mosseri.” The district court

stated that, unless Mosseri had “a factual defense saying, you know, Mosseri was

in a coma for several months and did not know what was going on . . . [,] his

corporation [was] getting the money for selling what is allegedly infringing

goods.”

The district court orally denied Mosseri’s motion to vacate. After Mosseri’s

attorney stated that Louis Vuitton had not “met [the] burden” of “show[ing] a

continuous and systematic contact with the state of Florida,” the district court

reiterated “I find they have done that.”

The district court followed this oral order with a short written order

providing: “[f]or the reasons set forth on the record, it is hereby: ORDERED AND

ADJUDGED that Joseph Mosseri’s Verified Motion to Vacate Default

Judgment . . . is DENIED.” Mosseri timely appealed, contending the default

judgment is void because the district court in Florida lacked personal jurisdiction

over him.

II. STANDARD OF REVIEW

A plaintiff seeking to establish personal jurisdiction over a nonresident

defendant “bears the initial burden of alleging in the complaint sufficient facts to

19
 Case: 12-12501 Date Filed: 12/02/2013 Page: 20 of 39

make out a prima facie case of jurisdiction.” United Techs. Corp. v. Mazer, 556

F.3d 1260, 1274 (11th Cir. 2009). When a defendant challenges personal

jurisdiction “by submitting affidavit evidence in support of its position, the burden

traditionally shifts back to the plaintiff to produce evidence supporting

jurisdiction.” Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990) (internal

quotation marks omitted). The burden, however, does not shift back to the plaintiff

when “the defendant’s affidavits contain only conclusory assertions that the

defendant is not subject to jurisdiction.” Stubbs v. Wyndham Nassau Resort &

Crystal Palace Casino, 447 F.3d 1357, 1360 (11th Cir. 2006).

We review de novo whether the district court had personal jurisdiction over

a nonresident defendant. Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210,

1217 (11th Cir. 2009). In doing so, we accept as true the allegations in the

complaint. Stubbs, 447 F.3d at 1360. If the district court makes any findings of

fact in reaching its personal jurisdiction conclusion, we review those fact findings

for clear error. Merial Ltd. v. Cipla Ltd., 681 F.3d 1283, 1292 (11th Cir. 2012).

We generally review a district court’s denial of a Rule 60(b) motion to

vacate a default judgment under a deferential abuse of discretion standard.

Oldfield, 558 F.3d at 1217. However, when a party seeks to vacate a default

judgment by arguing that the district court did not have jurisdiction over his

20
 Case: 12-12501 Date Filed: 12/02/2013 Page: 21 of 39

person, we review de novo the denial of the Rule 60(b) motion because “a district

court’s failure to vacate a void judgment is per se an abuse of discretion.” Id.

III. PERSONAL JURISDICTION QUESTIONS

We consider two questions in resolving personal jurisdiction: (1) whether

personal jurisdiction exists over the nonresident defendant Mosseri under Florida’s

long-arm statute, and (2) if so, whether that exercise of jurisdiction would violate

the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution.

See Mut. Serv. Ins. Co. v. Frit Indus., Inc., 358 F.3d 1312, 1319 (11th Cir. 2004).

Before evaluating these legal issues, we address Mosseri’s affidavit because

a key factual issue here was whether Mosseri was connected to the websites that

were selling counterfeit Louis Vuitton goods.

IV. MOSSERI’S AFFIDAVIT

Mosseri claims that his affidavit means the district court clearly erred in its

finding that he was involved with the “pendoza.com” website that was selling

counterfeit goods into Florida and wherever the Internet goes. We disagree and

explain why.

We start with the allegations in Louis Vuitton’s complaint and then review

what Mosseri’s affidavit said. Louis Vuitton’s complaint specifically alleged that

Mosseri: (1) “conducts business throughout the United States, including within this

Judicial District”; (2) engaged in the “sale of counterfeit and infringing Louis

21
 Case: 12-12501 Date Filed: 12/02/2013 Page: 22 of 39

Vuitton branded products within this Judicial District through multiple fully

interactive commercial websites”; (3) purposefully directed illegal activities

“towards consumers in . . . Florida through the . . . sale of counterfeit Louis

Vuitton branded goods into the State”; (4) was “selling and/or offering for sale

counterfeit products, including at least handbags and wallets, using trademarks

which are exact copies of the Louis Vuitton Marks”; and (5) was “actively . . .

advertising, distributing, selling . . . substantial quantities” of these infringing

goods in Florida and elsewhere. These allegations established a prima facie case

of jurisdiction over Mosseri. See Posner v. Essex Ins. Co., 178 F.3d 1209, 1216

(11th Cir. 1999) (holding that the plaintiff “alleged facts, unrebutted by Salem, that

established a prima facie case of jurisdiction over Salem”).

To shift the burden back to the plaintiff, a defendant’s affidavit must contain

“specific factual declarations within the affiant’s personal knowledge.” Id. at

1215. As noted earlier, Mosseri’s affidavit did not deny that counterfeit Louis

Vuitton goods and products were being sold directly to Florida consumers through

the “pendoza.com” website. Instead, Mosseri’s affidavit contains only a denial

that he was not affiliated with the website. Given the extensive allegations in the

complaint, it is questionable whether Mosseri’s conclusory denial shifted the

burden back to the plaintiff at all. See id. (concluding that a nonresident

defendant’s attempt to challenge a prima facie case of personal jurisdiction with

22
 Case: 12-12501 Date Filed: 12/02/2013 Page: 23 of 39

“conclusory assertions of ultimate fact” is insufficient to shift to the plaintiff “the

burden of producing evidence supporting jurisdiction”).

In any event, for purposes of this appeal, we accept that Mosseri’s affidavit

created a factual issue as to whether he was affiliated with the “pendoza.com”

website (which was selling infringing goods into Florida). The problem for

Mosseri is that the district court held an evidentiary hearing and found that Holmes

had ordered through Mosseri’s website, had received in Florida, and had paid

Mosseri’s company for the infringing billfold. The district court also found

Mosseri was soliciting business through his website wherever the Internet goes,

including in Florida and that his company was getting money for selling infringing

goods. The documentary evidence and investigators’ testimony support those

findings, and Mosseri has not shown the district court clearly erred in making

them.

The fact that the district court did not believe Mosseri’s affidavit is not

surprising. In the first paragraph, Mosseri stated he was never served with process.

The record established that Mosseri was personally served. Mosseri finally

stopped denying this. In the third paragraph, Mosseri said he was not “affiliated”

with the “pendoza.com” website. But Louis Vuitton’s evidence at the hearing

demonstrated the contrary. Holmes paid JEM Marketing for the billfold ordered

through the “pendoza.com” website, and Mosseri was the CEO of JEM Marketing.

23
 Case: 12-12501 Date Filed: 12/02/2013 Page: 24 of 39

If Mosseri was not the entire moving force behind the “pendoza.com” website, he

surely had the lead role. If Mosseri’s company, JEM Marketing, had even one

other employee besides its CEO Mosseri, the record did not reflect it.

In the second paragraph, Mosseri swore he lived in New York. That was

true. Mosseri added only: “I do not conduct any business in Florida.” If this was

meant as a statement that his “pendoza.com” website produced no sales to Florida,

the statement was demonstrably false. The investigators’ affidavits, testimony, and

subpoenaed records collectively revealed that the payee JEM Marketing and its

CEO Mosseri were using the same telephone number ((917) 669-2544) and same

address (2167 East 21st Street, Brooklyn, New York). As the district court found,

the payee, JEM Marketing sent the billfold to Holmes in Florida, which he ordered

through the “pendoza.com” website, and Mosseri controlled JEM Marketing. This

evidence indicated the falsity of the statement that Mosseri did not conduct “any

business in Florida.”

That the district court did not credit the statements in Mosseri’s affidavit—

that he was not affiliated with the websites and did not conduct business in

Florida—was not clear error. Given that determination, we must now review

whether the complaint’s unrebutted allegations and investigators’ testimony

showed that Mosseri was subject to personal jurisdiction in Florida. We thus turn

to Florida’s long-arm statute.

24
 Case: 12-12501 Date Filed: 12/02/2013 Page: 25 of 39

V. FLORIDA’S LONG-ARM STATUTE

The reach of Florida’s long-arm statute “is a question of Florida law,” and

this Court is required to apply the statute “as would the Florida Supreme Court.”

United Techs., 556 F.3d at 1274. We are also bound to adhere to the

interpretations of Florida’s long-arm statute offered by Florida’s District Courts of

Appeal absent some indication that the Florida Supreme Court would hold

otherwise. Id. “Florida’s long-arm statute is to be strictly construed.” Sculptchair,

Inc. v. Century Arts, Ltd., 94 F.3d 623, 627 (11th Cir. 1996) (applying Florida

law).

A. Fla. Stat. § 48.193(1)(a)(2)

Florida’s long-arm statute provides for both general and specific personal

jurisdiction. See Fla. Stat. § 48.193(1)–(2). General personal jurisdiction exists

when a defendant “is engaged in substantial and not isolated activity within this

state . . . whether or not the claim arises from that activity.” Id. § 48.193(2).

General personal jurisdiction is based on a defendant’s substantial activity in

Florida without regard to where the cause of action arose. See Oldfield, 558 F.3d

at 1220 n.27.

On the other hand, specific personal jurisdiction authorizes jurisdiction over

causes of action arising from or related to the defendant’s actions within Florida

and concerns a nonresident defendant’s contacts with Florida only as those

25
 Case: 12-12501 Date Filed: 12/02/2013 Page: 26 of 39

contacts related to the plaintiff’s cause of action. See id. Louis Vuitton relies on

the “tortious acts within Florida” provision in § 48.193(1)(a)(2) of Florida’s long-

arm statute.

Section 48.193(1)(a)(2) provides that a nonresident defendant is subject to

personal jurisdiction in Florida “for any cause of action arising from . . .

[c]omitting a tortious act within [Florida].” Fla. Stat. § 48.193(1)(a)(2) (emphasis

added). Accordingly, Louis Vuitton must show its trademark infringement claims

arose from Mosseri committing “a tortious act within” Florida. Similar to Louis

Vuitton’s case, our precedent in Licciardello v. Lovelady, 544 F.3d 1280 (11th Cir.

2008), involved a website-trademark infringement claim against a nonresident

defendant and Florida’s same “tortious act” provision§ 48.193(1)(a)(2). Thus,

Lovelady guides our analysis here.

In Lovelady, the plaintiff, Licciardello, a nationally-known entertainer, sued

defendant Lovelady, his former personal manager in the Middle District of Florida.

Id. at 1282–83. Licciardello alleged that Lovelady had wrongfully used

Licciardello’s trademarked name and picture on Lovelady’s Internet website

“accessible to the public in Florida that promoted Lovelady as a personal manager

for music artists.” Id. at 1282 (emphasis added). Defendant Lovelady lived in

Tennessee, created his website in Tennessee, and moved to dismiss for lack of

26
 Case: 12-12501 Date Filed: 12/02/2013 Page: 27 of 39

personal jurisdiction over him in Florida. Id. at 1282–83. The district court

granted the motion for lack of jurisdiction over defendant Lovelady in Florida. Id.

Reversing, this Court concluded that the plaintiff’s allegations in the

complaint were sufficient to establish personal jurisdiction in Florida over

defendant Lovelady under the “tortious acts” provision in § 48.193(1)(a)(2). Id. at

1283–84. 7 While Lovelady did not expressly analyze whether trademark

infringement claims are tort claims, Lovelady treated them as tortious acts. Id. 8

Thus, we conclude that Louis Vuitton’s trademark claims allege “tortious acts” for

purposes of Florida’s long-arm statute.

More importantly, Lovelady also tells us that, under Florida law, a

nonresident defendant commits “a tortious act within [Florida]” when he commits

an act outside the state that causes injury within Florida. See id. at 1283 (citing

Posner, 178 F.3d at 1216–17 (collecting Florida cases and adopting Florida courts’

broad interpretation of the long-arm statute that permits personal jurisdiction over

7
Lovelady construed a previous version of the statute, where the tortious acts provision
was codified at Fla. Stat. § 48.193(1)(b). In 2013, the Florida legislature amended the statute and
moved the tortious acts provision to its present location at Fla. Stat. § 48.193(1)(a)(2). However,
the amendment did not alter the language of the provision or change its substance in any way.
8
Other courts describe trademark infringement as a tort. See, e.g., Chloé v. Queen Bee of
Beverly Hills, LLC, 616 F.3d 158, 171 (2d Cir. 2010) (“Trademark infringement is . . . a tort.”);
Polar Bear Prods., Inc. v. Timex Corp., 384 F.3d 700, 720 (9th Cir. 2004) (“[T]rademark
infringement generally sounds in tort.”); Dakota Indus., Inc. v. Dakota Sportswear, Inc., 946 F.2d
1384, 1388 (8th Cir. 1991) (“Infringement of a trademark is a tort.”).
27
 Case: 12-12501 Date Filed: 12/02/2013 Page: 28 of 39

nonresident “defendants committing tortious acts outside the state that cause injury

in Florida”)). 9

Furthermore, Lovelady instructs that, under the “tortious acts” provision in

§ 48.193(1)(a)(2), a trademark infringement on an Internet website causes injury

and occurs in Florida “by virtue of the website’s accessibility in Florida.”

Lovelady, 544 F.3d at 1283. Although defendant Lovelady lived and created the

website containing the infringing mark in Tennessee, the owner of the mark

(plaintiff Licciardello) resided in Florida. Id. at 1282–83. We reasoned that “[w]e

need not decide whether trademark injury necessarily occurs where the owner of

the mark resides, as the Florida district courts have held, because in this case the

alleged infringement clearly also occurred in Florida by virtue of the website’s

accessibility in Florida.” Id. 1283 (emphasis added).

Applying our precedent in Lovelady, we conclude that under Florida law

where Mosseri created the websites and posted the alleged infringing material does

not matter. For purposes of § 48.193(1)(a)(2), the issue is whether Mosseri’s

tortious acts caused injury in Florida. Lovelady says the tort of trademark

infringement caused injury and thus “occurred in Florida by virtue of the website’s

accessibility in Florida.” Id.

9
The Florida Supreme Court has, without expressly adopting or rejecting it,
acknowledged this Court’s interpretation. See Internet Solutions Corp. v. Marshall, 39 So. 3d
1201 (Fla. 2010) (recognizing that federal courts have held “that the commission of a tortious act
out of state that causes injury to an in-state resident satisfies Florida’s long-arm statute”).
28
 Case: 12-12501 Date Filed: 12/02/2013 Page: 29 of 39

Although Lovelady relied on the website’s accessibility in Florida for its

long-arm statute analysis solely, this case involves other tortious acts within

Florida. Louis Vuitton’s complaint repeatedly alleged that Mosseri was selling

counterfeit and infringing Louis Vuitton products and goods into the Southern

District of Florida and elsewhere and also alleged “substantial quantities” were

being sold. Mosseri never rebutted these allegations of multiple sales into Florida.

Louis Vuitton even introduced evidence of a sample sale from the “pendoza.com”

website to Holmes, located in Florida. Mosseri did not dispute that this Florida

sale happened through that website; he only contested his association with the

payee on the website transaction, JEM Marketing. However, the district court

expressly found that Mosseri controlled that payee company and was soliciting

business through that website.

In summary, Mosseri’s tortious acts on behalf of JEM Marketing caused

injury in Florida and thus occurred there because Mosseri’s trademark infringing

goods were not only accessible on the website, but were sold to Florida customers

through that website. This satisfies § 48.193(1)(a)(2)’s requirements for specific

personal jurisdiction over Mosseri.

B. Mosseri’s Corporate Shield Defense

On appeal, Mosseri argues for the first time that he is not subject to personal

jurisdiction in Florida because any websites sales and infringement acts by him

29
 Case: 12-12501 Date Filed: 12/02/2013 Page: 30 of 39

were made on behalf of his corporation, JEM Marketing. First, Mosseri did not

raise this corporate shield argument in his Rule 60(b)(4) motion to vacate or during

the district court’s evidentiary hearing. Thus, we consider this argument waived.

See Miller v. King, 449 F.3d 1149, 1150 n.1 (11th Cir. 2006) (holding that because

a “claim was never raised in the district court” this Court would “not consider it for

the first time on appeal”); Narey v. Dean, 32 F.3d 1521, 1526–27 (11th Cir. 1994)

(“[A]ppellate courts generally will not consider an issue or theory that was not

raised in the district court.” (internal quotation marks omitted)).

In any event, even if the argument is not waived, this case involves

intentional torts, meaning that Mosseri cannot invoke Florida’s corporate shield

doctrine. For purposes of personal jurisdiction under Florida law, the corporate

shield doctrine creates a “distinction between a corporate officer acting on one’s

own and a corporate officer acting on behalf of one’s corporation.” Doe v.

Thompson, 620 So. 2d 1004, 1006 (Fla. 1993). Florida courts have held “that it is

unfair to force an individual to defend a suit brought against him personally in a

forum with which his only relevant contacts are acts performed not for his own

benefit but for the benefit of his employer.” Id. (internal quotation marks omitted).

Importantly, however, under Florida law, this corporate shield doctrine is

inapplicable where the corporate officer commits intentional torts. Id. at 1006 n.1

(stating “[a] corporate officer committing fraud or other intentional misconduct can

30
 Case: 12-12501 Date Filed: 12/02/2013 Page: 31 of 39

be subject to personal jurisdiction”); see also Kitroser v. Hurt, 85 So. 3d 1084,

1088 n.3 (Fla. 2012). Because Louis Vuitton alleges that Mosseri committed

intentional torts, his corporate shield defense to personal jurisdiction fails under

Florida law.

VI. THE DUE PROCESS CLAUSE

Alternatively, Mosseri argues the district court’s exercise of specific

personal jurisdiction over him violated due process.

A. Three-Part Due Process Test

In specific personal jurisdiction cases, we apply the three-part due process

test, which examines: (1) whether the plaintiff’s claims “arise out of or relate to” at

least one of the defendant’s contacts with the forum; (2) whether the nonresident

defendant “purposefully availed” himself of the privilege of conducting activities

within the forum state, thus invoking the benefit of the forum state’s laws; and (3)

whether the exercise of personal jurisdiction comports with “traditional notions of

fair play and substantial justice.” See Burger King Corp. v. Rudzewicz, 471 U.S.

462, 472–73, 474–75, 105 S. Ct. 2174, 2182–83 (1985); Helicopteros Nacionales

de Colombia, S.A. v. Hall, 466 U.S. 408, 413–14, 104 S. Ct. 1868, 1872 (1984);

Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158 (1945); see

31
 Case: 12-12501 Date Filed: 12/02/2013 Page: 32 of 39

also Oldfield, 558 F.3d at 1220–21; Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d

623, 630–31 (11th Cir. 1996). 10

The plaintiff bears the burden of establishing the first two prongs, and if the

plaintiff does so, “a defendant must make a ‘compelling case’ that the exercise of

jurisdiction would violate traditional notions of fair play and substantial justice.”

Diamond Crystal Brands, Inc. v. Food Movers Int’l, Inc., 593 F.3d 1249, 1267

(11th Cir. 2010).

B. Prong One: “Arising Out of” or Relatedness

“[A] fundamental element of the specific jurisdiction calculus is that

plaintiff’s claim must arise out of or relate to at least one of the defendant’s

contacts with the forum.’” Fraser v. Smith, 594 F.3d 842, 850 (11th Cir. 2010)

(quoting Oldfield, 558 F.3d at 1222 (additional internal quotation marks omitted)).

“Our inquiry must focus on the direct causal relationship between the defendant,

the forum, and the litigation.” Fraser, 594 F.3d at 850 (internal quotation marks

omitted) (quoting Helicopteros, 466 U.S. at 414, 104 S. Ct. at1872). “[A]

relationship among the defendant, the forum, and the litigation is the essential

10
We recognize the existence of the sliding-scale test for Internet cases first articulated in
Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W. D. Pa. 1997). But our
Court has noted scholarly criticisms of the Zippo test. See Oldfield, 558 F.3d at 1219–20 n.26.
We conclude the traditional, three-prong test works just fine in this Internet case where the
website was commercial and fully interactive.
32
 Case: 12-12501 Date Filed: 12/02/2013 Page: 33 of 39

foundation of in personum jurisdiction . . . .” Helicopteros, 466 U.S. at 414, 104 S.

Ct. at 1872 (internal quotation marks omitted).

Here, Louis Vuitton’s trademark claims arise out of Mosseri’s contacts with

Florida. Mosseri’s ties to Florida all involve the advertising, selling, and

distributing of alleged counterfeit and infringing Louis Vuitton goods into the state

and accepting payment from Florida customers for such goods. There is a direct

causal relationship between Mosseri, Florida, and Louis Vuitton’s trademark

claims. See Helicopteros, 466 U.S. at 414, 104 S. Ct. at 1872. This first

requirement is easily satisfied.

C. Prong Two: Purposeful Availment

In intentional tort cases, there are two applicable tests for determining

whether purposeful availment occurred. First, we may apply the “effects test,”

which the Supreme Court articulated in Calder v. Jones, 465 U.S. 783, 104 S. Ct.

1482 (1984) (involving libel claims). Under the “effects test,” a nonresident

defendant’s single tortious act can establish purposeful availment, without regard

to whether the defendant had any other contacts with the forum state. See

Lovelady, 544 F.3d at 1285. This occurs when the tort: “(1) [was] intentional; (2)

[was] aimed at the forum state; and (3) caused harm that the defendant should have

anticipated would be suffered in the forum state.” Id. at 1285–86, 1287–88. In

Lovelady, this Court concluded the defendant’s use of the Florida plaintiff’s

33
 Case: 12-12501 Date Filed: 12/02/2013 Page: 34 of 39

trademarked name and picture on a website accessible in Florida “satisfied the

Calder ‘effects test’ for personal jurisdiction—the commission of an intentional

tort aimed at a specific individual in the forum whose effects were suffered in the

forum.” Id. at 1288 (concluding due process was satisfied because the plaintiff

was a Florida resident and the defendant directed his intentional actions towards

the plaintiff in the forum state).

We may also apply a traditional purposeful availment analysis. The same

day that the Supreme Court issued its decision in Calder, it also issued an opinion

in another intentional tort case (but not one brought by a resident of the forum

state). See Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 104 S. Ct. 1473 (1984)

(involving libel claims). In that intentional tort case, the Court applied the

traditional minimum contacts test. Id. at 1478–79, 104 S. Ct. at 775–77. Circuit

courts have applied the traditional minimum contacts test for purposeful availment

analysis in lieu of, or in addition to, the “effects test” in cases involving trademark-

related intentional torts. See, e.g., Chloé v. Queen Bee of Beverly Hills, LLC, 616

F.3d 158, 172 (2d Cir. 2010) (“Because we have concluded that [the defendant]

has purposefully availed himself of the New York forum, we need not decide

whether [the defendant’s] act of shipping a counterfeit . . . bag represented conduct

‘expressly aimed at’ New York under the . . . effects test.”); Toys “R” Us, Inc. v.

Step Two, S.A., 318 F.3d 446, 454–55 & n.6 (3d Cir. 2003) (analyzing personal

34
 Case: 12-12501 Date Filed: 12/02/2013 Page: 35 of 39

jurisdiction under the traditional minimum contacts test and holding that, in the

alternative, the alleged infringement did not satisfy the “effects test”).

This Court has applied that test, too. See S.E.C. v. Carrillo, 115 F.3d 1540,

1542 (11th Cir. 1997) (applying the traditional minimum contacts test in a case

involving intentional tort claims of securities fraud). The “effects test” provides an

additional means, unavailable in contract cases, of determining the appropriateness

of personal jurisdiction—one that is based on a plaintiff’s ties to the forum state

and the harm suffered by the plaintiff. The “effects test,” however, does not

supplant the traditional minimum contacts test for purposeful availment applicable

in contract and tort cases alike. Because Louis Vuitton showed purposeful

availment under that test, we need not analyze the “effects test” here. 11

Under the minimum contacts test for purposeful availment, we assess the

nonresident defendant’s contacts with the forum state and ask whether those

contacts: (1) are related to the plaintiff’s cause of action; (2) involve some act by

which the defendant purposefully availed himself of the privileges of doing

business within the forum; and (3) are such that the defendant should reasonably

anticipate being haled into court in the forum. See Carrillo, 115 F.3d at 1542. In

11
Oldfield states in dicta in a footnote that the minimum contacts test applies in
negligence cases and the “effects test” applies in intentional tort cases. See 558 F.3d at 1220
n.28. Oldfield, however, was a negligence case and did not state the “effects test” is the
exclusive test for intentional tort cases. Rather, it stated the “effects test” applies only in
intentional tort cases, a proposition with which we do not disagree.
35
 Case: 12-12501 Date Filed: 12/02/2013 Page: 36 of 39

performing this analysis, we identify all contacts between a nonresident defendant

and a forum state and ask whether, individually or collectively, those contacts

satisfy these criteria. See King & Hatch, Inc. v. S. Pipe & Supply Co., 435 F.2d

43, 46 (5th Cir. 1970) (“Taken collectively, the contacts of [the nonresident

defendant] with the State of Alabama far exceed those ‘minimum contacts’ which

would allow Alabama to constitutionally compel [the defendant] to defend this suit

in the forum state.”).12

Based upon the unrebutted allegations of the complaint, the investigators’

testimony, and the district court’s fact findings, we conclude that Mosseri

purposefully availed himself of the Florida forum in such a way that he could

reasonably foresee being haled into a Florida court. Mosseri purposefully solicited

business from Florida residents through the use of at least one fully interactive,

commercial website, “pendoza.com.” As a result of this Internet advertising,

Mosseri received orders from multiple Florida residents to ship goods into Florida.

At least one of those orders was from Holmes for a billfold and Mosseri shipped

those goods, including the billfold, into Florida. These collective contacts

establish that Mosseri purposefully availed himself of the privileges of doing

business in south Florida.

12
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to October 1, 1981.
36
 Case: 12-12501 Date Filed: 12/02/2013 Page: 37 of 39

We are not saying that the mere operation of an interactive website alone

gives rise to purposeful availment anywhere the website can be accessed. See

Toys “R” Us, 318 F.3d at 453–54; see also be2 LLC v. Ivanov, 642 F.3d 555, 558–

59 (7th Cir. 2011) (concluding that there was insufficient evidence that the

defendant, operator of a dating website which made user accounts freely available,

purposefully availed himself of doing business in Illinois); Carefirst of Md., Inc. v.

Carefirst Pregnancy Ctrs, Inc., 334 F.3d 390, 400–01 (4th Cir. 2003) (concluding

that the Illinois defendant’s semi-interactive website alone did not create personal

jurisdiction in Maryland because the overall content of the defendant’s website had

a strongly local character emphasizing its “mission to assist Chicago-area women

in pregnancy crises”).

But we are saying purposeful availment for due process was shown here

because, in addition to his fully interactive “pendoza.com” website accessible in

Florida, Mosseri had other contacts with Florida—through selling and distributing

infringing goods through his website to Florida consumers—and the cause of

action here derives directly from those contacts.

D. Prong Three: “Fair Play and Substantial Justice”

The exercise of personal jurisdiction over Mosseri in Florida also comports

with fair play and substantial justice. See Int’l Shoe, 326 U.S. at 320, 66 S. Ct. at

160. In this analysis, we consider these factors: (1) “the burden on the defendant”;

37
 Case: 12-12501 Date Filed: 12/02/2013 Page: 38 of 39

(2) “the forum’s interest in adjudicating the dispute”; (3) “the plaintiff’s interest in

obtaining convenient and effective relief”; and (4) “the judicial system’s interest in

resolving the dispute.” Lovelady, 544 F.3d at 1288.

Mosseri has not offered any evidence of his finances or any other limitations

on him to show that he would be burdened by having to litigate the case in Florida.

In light of Mosseri’s selling trademark infringing goods into Florida and Louis

Vuitton’s having multiple stores in Florida, Florida had a strong interest in hearing

the case and protecting consumers from confusion that results from trademark

infringement. Moreover, Louis Vuitton, as a plaintiff with Florida stores, has an

undeniable interest in litigating the case in its chosen forum. The judiciary has an

interest in efficiently resolving the dispute in the forum where an extensive record

was established and the case was long pending.

It bears noting, too, that Louis Vuitton, while capable of litigating in New

York or anywhere else, did not bring this lawsuit in Florida to draw Mosseri away

from his home jurisdiction. When Louis Vuitton filed the lawsuit, it did not know

who was behind the websites or where the person was. Requiring two lawsuits

when one would do makes little sense. Mosseri can constitutionally be sued in

Florida; that he could also be sued in New York is quite beside the point.

VII. CONCLUSION

38
 Case: 12-12501 Date Filed: 12/02/2013 Page: 39 of 39

In sum, under the unrebutted allegations and testimony here, the district

court in Florida did not violate the Due Process Clause by exercising personal

jurisdiction over Mosseri for Louis Vuitton’s trademark infringement claims.

Because the state statutory and federal constitutional personal jurisdiction

requirements were satisfied, the district court did not err in denying Mosseri’s

motion to vacate the default judgment.

AFFIRMED.

39