NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 30 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
BELLAGIO, LLC, a Nevada limited No. 12-16235
liability company, and MIRAGE
RESORTS, INC., a Nevada corporation, D.C. No. 2:11-cv-01975-PMP-
PAL
Plaintiffs - Appellants,
v. MEMORANDUM*
BELLAGIO SHOES, INC., a California
corporation; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, Senior District Judge, Presiding
Argued and Submitted April 10, 2014
San Francisco, California
Before: NOONAN, NGUYEN, and WATFORD, Circuit Judges.
Bellagio, LLC and its parent company, Mirage Resorts, Inc. (together,
“Bellagio”), appeal the district court’s dismissal of their trademark infringement
suit against Bellagio Shoes, Inc., Bertini Shoes, Inc. (together, “Bellagio Shoes”),
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
and individual defendants Shlomo Ronen (“Ronen”) and Itzhak Ben Shoshan
(“Shoshan”) for lack of personal jurisdiction. Without allowing the parties to
engage in jurisdictional discovery or holding an evidentiary hearing, the district
court dismissed the complaint with leave to refile in the United States District
Court for the Central District of California, holding that the defendants had not
“purposefully availed themselves of the privilege of conducting activities in
Nevada” to warrant the exercise of specific personal jurisdiction.
We have jurisdiction under 28 U.S.C. § 1291 and review the district court’s
decision de novo. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800
(9th Cir. 2004).
1. The district court should have applied the “purposeful direction,” rather
than “purposeful availment,” variant of the minimum contacts test. See Wash. Shoe
Co. v. A-Z Sporting Goods, Inc., 704 F.3d 668, 672-73 (9th Cir. 2012). Rather than
applying this test ourselves, we remand the case for the district court to order
jurisdictional discovery and potentially hold an evidentiary hearing, since many
“pertinent facts bearing on the question of jurisdiction are controverted” and “a
more satisfactory showing of the facts is necessary.” Boschetto v. Hansing, 539
F.3d 1011, 1020 (9th Cir. 2008) (quoting Data Disc, Inc. v. Sys. Tech. Assoc., Inc.,
557 F.2d 1280, 1285 n.1 (9th Cir. 1977)) (internal quotation marks omitted).
2
Among the many relevant, contested issues, the district court should consider the
level of control retained by Ronen (if any) over Bellagio Shoes, the existence of
any Internet sales by Bellagio Shoes to customers in Nevada, and the credibility of
Bellagio’s key affiant, Damian Pryor. To this end, the district court may wish to
hold an evidentiary hearing.
2. Although further jurisdictional discovery is warranted as to Bellagio
Shoes and Ronen, Shoshan should be dismissed as a defendant. His limited actions
as the webmaster of and , and as the owner of
the domain name, did not form sufficient contacts with
Nevada to authorize the district court’s exercise of jurisdiction over him. See
Walden v. Fiore, 134 S. Ct. 1115, 1122-24 (2014).
AFFIRMED IN PART; REMANDED.
Each party shall bear its own costs.
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