United States Court of Appeals
For the First Circuit
No. 15-1509
A CORP. D/B/A ROOTER MAN,
Plaintiff, Appellant,
v.
ALL AMERICAN PLUMBING, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Lynch, Thompson, and Kayatta,
Circuit Judges.
Juan (Jenny) Liu for appellant.
Albert A. DeNapoli, with whom Matthew S. Furman, and Tarlow,
Breed, Hart & Rodgers, P.C., were on brief, for appellee.
January 27, 2016
Judge Lynch heard oral argument in this matter and
participated in the semble, but she did not participate in the
issuance of the panel's opinion. The remaining two panelists issue
this opinion pursuant to 28 U.S.C. § 46(d).
THOMPSON, Circuit Judge. Plaintiff-appellant A Corp.
appeals from the district court's dismissal of its trademark
infringement action against defendant-appellee All American
Plumbing, Inc. ("All American") for lack of personal jurisdiction.
A Corp. argues that the district court had specific personal
jurisdiction over All American because All American maintains an
interactive website that is accessible in Massachusetts and caused
injury to the trademark owner in Massachusetts. We disagree and
affirm.
I. BACKGROUND
On August 28, 2014, A Corp. filed this trademark
infringement action against All American, alleging federal
trademark infringement, false designation of origin, dilution,
interference with contractual relation, unfair competition, and
unjust enrichment. A Corp. is a Massachusetts plumbing corporation
and franchisor1 that owns the federal registrations of the "Rooter
Man" mark, "A Rooter Man to the Rescue" mark, and the "Rooter Man"
words (collectively, the "Rooter Man marks"), which are registered
for "cleaning and repairing septic systems and clearing clogged
pipes and drains."2 In its complaint, A Corp. alleged that All
1 Although A Corp.'s principal place of business is
Massachusetts, it has approximately 426 franchisees operating in
the United States and Canada.
2 In reviewing the district court's dismissal for lack of
personal jurisdiction, we accept as true the allegations in the
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American -- a family-run plumbing company located in Arizona --
was improperly using A Corp.'s Rooter Man mark, or one confusingly
similar, to advertise its plumbing business on its website,
www.allamericanplumbingandrooter.com, which A Corp. described as
being "interactive" and continuously "accessible in
Massachusetts." A Corp. claimed that All American's unauthorized
use of the Rooter Man marks interfered with A Corp.'s franchise
agreement with its Arizona franchisee, confusing its customers and
prospective franchisees as to the possible relationship between
the two companies.
All American, an Arizona corporation with its principal
place of business in Mesa, Arizona, subsequently moved to dismiss
for lack of personal jurisdiction and improper venue,3 highlighting
that it conducts business exclusively in Arizona, with no
employees, property, offices, or bank accounts in Massachusetts.
All American further noted that it is only licensed to provide
plumbing services in Arizona and that its website, although widely
accessible, solicits plumbing business solely in Arizona. And
even then, All American explained, its website solicitations are
limited to providing the email addresses and local phone and fax
complaint, construing the facts in the light most favorable to the
plaintiff-appellant. Phillips v. Prairie Eye Ctr., 530 F.3d 22,
24 (1st Cir. 2008).
3 All American also argued, in the alternative, for transfer.
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numbers for All American's three Arizona locations -- East Valley,
West Valley and Phoenix. All American's website does not mention
Massachusetts, and All American has never offered or provided any
plumbing services in Massachusetts.
After consideration of the parties' submissions,
including affidavits submitted by both parties, the district court
granted All American's motion to dismiss, concluding that A Corp.
had not met its burden to establish either general or specific
jurisdiction. The district court determined that A Corp. had only
offered allegations or evidence of two contacts between All
American and the Commonwealth: (1) All American's website, which
is accessible in Massachusetts (along with everywhere else); and
(2) All American's lawyer's general appearance in the action.4
Concluding that neither of these contacts were sufficient to
establish jurisdiction, the district court specifically found that
All American's website was not "interactive" and that it did not
directly offer products or services for sale. Accordingly, the
district court concluded that All American's website, standing
alone, was insufficient to demonstrate that All American had
purposefully availed itself of the forum.
4 On appeal, A Corp. does not pursue its argument that All
American's lawyer's general appearance established personal
jurisdiction over All American.
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A Corp. filed this timely appeal, challenging only the
district court's conclusion as to the exercise of specific
jurisdiction.
II. STANDARD OF REVIEW
We review de novo the district court's decision to
dismiss for lack of personal jurisdiction. Phillips v. Prairie
Eye Ctr., 530 F.3d 22, 26 (1st Cir. 2008).
A Corp. bears the burden to establish that specific
jurisdiction exists over All American. Id. Below, the district
court employed the prima facie method to determine whether A Corp.
had met its burden.5 Under this standard, "the inquiry is whether
[A Corp.] has proffered evidence which, if credited, is sufficient
to support findings of all facts essential to personal
jurisdiction." Id. at 26. It is not enough for A Corp. to "rely
on unsupported allegations in [its] pleadings." Platten v. HG
Bermuda Exempted Ltd., 437 F.3d 118, 134 (1st Cir. 2006) (quoting
Boit v. Gar–Tec Prods., Inc., 967 F.2d 671, 675 (1st Cir. 1992)).
Rather, A Corp. must put forward "evidence of specific facts" to
5The other two methods are the preponderance method and the
likelihood method. Phillips, 530 F.3d at 26, n.2. Unlike the
prima facie method, the preponderance and likelihood methods
generally require an evidentiary hearing. Id. "[T]he least taxing
of these standards from a plaintiff's standpoint, and the one most
commonly employed in the early stages of litigation, is the prima
facie standard." Rodriguez v. Fullerton Tires Corp., 115 F.3d 81,
83-84 (1st Cir. 1997).
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demonstrate that jurisdiction exists. Id. (quoting Foster–Miller,
Inc. v. Babcock & Wilcox Can., 46 F.3d 138, 145 (1st Cir.1995)).
Reviewing a decision made under the prima facie
standard, we must accept A Corp.'s properly documented evidentiary
proffers as true and construe them in the light most favorable to
A Corp.'s jurisdictional claim. Phillips, 530 F.3d at 26 (citing
Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290
F.3d 42, 51 (1st Cir. 2002)). But we will also consider facts
offered by All American, to the extent that they are not disputed.
Daynard, 290 F.3d at 51.
III. JURISDICTIONAL ANALYSIS
To establish personal jurisdiction over All American, A
Corp. must meet the requirements of both the Massachusetts long-
arm statute and the due process clause of the Fourteenth Amendment.
Daynard, 290 F.3d at 52.
A Corp. asserts specific jurisdiction under Mass. Gen.
Laws ch. 223A § 3(d), which extends personal jurisdiction to
persons "causing tortious injury in this commonwealth by an act or
omission outside this commonwealth if he regularly does or solicits
business, or engages in any other persistent course of conduct, or
derives substantial revenue from goods used or consumed or services
rendered, in this commonwealth." Id. This Court previously has
interpreted the Commonwealth's long-arm statute as coextensive
with the outer limits of the Constitution. See Daynard, 290 F.3d
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at 52 (citing 'Automatic' Sprinkler Corp. of Am. v. Seneca Foods
Corp., 280 N.E.2d 423, 424 (Mass. 1972)). But in recent cases, we
have suggested that the Commonwealth's long-arm statute may impose
limits on the exercise of personal jurisdiction "more restrictive"
than those required by the Constitution. See Copia Commc'ns, LLC
v. AMResorts, L.P., No. 15-1330, 2016 WL 147425, at *2 (1st Cir.
Jan. 13, 2016); Cossart v. United Excel Corp., 804 F.3d 13, 18
(1st Cir. 2015) (citing Good Hope Indus., Inc. v. Ryder Scott Co.,
389 N.E.2d 76, 80 (1979)). Having concluded, however, that the
due process clause does not permit the exercise of personal
jurisdiction over All American in this case, we need not untangle
this potential "tension in our precedent here." Copia Commc'ns,
LLC, 2016 WL 147425, at *2.
The due process clause requires that to subject a
nonresident defendant to jurisdiction within a state the defendant
must "have certain minimum contacts with it such that the
maintenance of the suit does not offend 'traditional notions of
fair play and substantial justice.'" Int'l Shoe Co. v. Washington,
326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457,
463 (1940)). For specific personal jurisdiction, the
constitutional analysis has three distinct prongs: relatedness,
purposeful availment, and reasonableness. Phillips, 530 F.3d at
27. As such, we must consider:
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(1) whether the claim 'directly arise[s] out of, or
relate[s] to, the defendant's forum state
activities;' (2) whether the defendant's in-state
contacts 'represent a purposeful availment of the
privilege of conducting activities in the forum
state, thereby invoking the benefits and
protections of that state's laws and making the
defendant's involuntary presence before the state's
courts foreseeable;' and (3) whether the exercise
of jurisdiction is reasonable.
C.W. Downer & Co. v. Bioriginal Food & Sci. Corp., 771 F.3d 59, 65
(1st Cir. 2014) (alterations in original) (citing Daynard, 290
F.3d at 60-61). To succeed, A Corp. must demonstrate that all
three prongs are met.6 Id. Applying this test to the facts of
this case, we conclude that due process does not permit the
exercise of specific jurisdiction over All American.
A. Relatedness
To satisfy the relatedness prong, A Corp. must show a
nexus between its claims and All American's forum-based
activities. Adelson v. Hananel, 652 F.3d 75, 81 (1st Cir. 2011).
Although this is a "relaxed standard," it nevertheless requires us
to hone in "on the relationship between the defendant and the
forum." Id. (citing Hannon v. Beard, 524 F.3d 275, 283 (1st Cir.
2008)).
6Although the district court appeared to ground its dismissal
on A Corp.'s failure to establish that All American had
purposefully availed itself of the forum, we will address each
prong in brief.
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A Corp. argues that the relatedness prong is satisfied
here because All American posted A Corp.'s trademark, or a
confusingly similar mark, on its website -- available in
Massachusetts -- causing injury to the trademark owner in
Massachusetts. But, in fact, what A Corp.'s allegations more
precisely establish is that any injury occurs in Arizona where A
Corp.'s Arizona franchisee potentially loses business, with the
effect that this out-of-state injury might eventually be felt by
A Corp. in Massachusetts where it resides. This type of indirect
effect of out-of-state injury caused by out-of-state conduct is
insufficient to fulfill the relatedness prong. See, e.g., Sawtelle
v. Farrell, 70 F.3d 1381, 1390-91 (1st Cir. 1995) (concluding that
in-forum effects of non-forum activity, standing alone, were
insufficient to support personal jurisdiction).
As any potential Massachusetts effects are ancillary to
the alleged out-of-state injury, we conclude that there is an
insufficient nexus in this case between A Corp.'s claims and All
American's one and only forum contact -- the availability of its
website. Cf. United States v. Swiss Am. Bank, Ltd., 274 F.3d 610,
621 (1st Cir. 2001) (noting that "there can be no requisite nexus
between the contacts and the cause of action if no contacts
exist"). But even if A Corp. had carried its burden to show
relatedness, it would fall at the next hurdle.
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B. Purposeful Availment
The purposeful availment inquiry is intended "to assure
that personal jurisdiction is not premised solely upon a
defendant's 'random, isolated, or fortuitous' contacts with the
forum state." Sawtelle, 70 F.3d at 1391 (quoting Keeton v. Hustler
Magazine, Inc., 465 U.S. 770, 774 (1984)). Rather, we focus on
the defendant's intentionality, and the cornerstones of purposeful
availment -- voluntariness and foreseeability. See id. Here, A
Corp. argues, in essence, that All American purposefully availed
itself of the forum because its alleged infringement targeted a
Massachusetts company. But "[t]he proper question is not where
the plaintiff experienced a particular injury or effect but whether
the defendant's conduct connects him to the forum in a meaningful
way." Walden v. Fiore, 134 S. Ct. 1115, 1125 (2014).
As we have already noted, A Corp. has offered only one
real contact between Massachusetts and All American -- All
American's use of a website that is accessible from everywhere in
the world, including Massachusetts. And although the website is
accessible in Massachusetts, it never mentions Massachusetts and
affords no mechanism for Massachusetts residents to order any goods
or services. The website offers no genuine "interactive" features,
functioning more like a digital billboard, passively advertising
the business and offering an email address, fax and phone number.
Moreover, All American's advertised services are available only in
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Arizona -- since All American is only licensed to provide plumbing
services in that state -- and All American has never performed any
plumbing services or conducted any business in Massachusetts. This
is not enough to show purposeful availment.
A Corp. heavily relies on a district court's decision in
Venture Tape Corp. v. McGills Glass Warehouse, 292 F. Supp. 2d 230
(D. Mass. 2003), to support its argument that the "something more"
required, see McBee v. Delica Co., 417 F.3d 107, 124 (1st Cir.
2005), to establish personal jurisdiction based on interactive
websites is met in trademark infringement cases when the "target
of the alleged infringement" is a forum company. Venture Tape,
292 F. Supp. 2d at 233 (relying on Calder v. Jones, 465 U.S. 783,
789–90 (1984), which held that those responsible for an article
about a California-based celebrity "knew that the brunt of that
injury would be felt by respondent in [California]" and therefore
should "reasonably anticipate being haled into court there"). But
the website at issue in Venture Tape allowed users "to place
orders" for "various products," id. at 231, and was, therefore,
actually "interactive," whereas All American's website is not.
Although this court has not explicitly considered the
issue of purposeful availment in trademark infringement cases such
as Venture Tape, where the only alleged contacts are (1) an
interactive website available in the forum state and (2) that the
allegedly-infringed trademark is owned by a forum company, on the
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facts of the present case, we can, at a minimum, reject the
broadest reading of Venture Tape, and conclude that, certainly,
the mere availability of a passive website, even one containing an
allegedly-infringed trademark owned by a forum company, cannot,
standing alone,7 subject a defendant to personal jurisdiction in
the forum. See, e.g., ALS Scan, Inc. v. Dig. Serv. Consultants,
Inc., 293 F.3d 707, 714-15 (4th Cir. 2002) (concluding that an
internet service provider's activities were passive and did not
support the exercise of personal jurisdiction); GTE New Media
Servs. Inc. v. BellSouth Corp., 199 F.3d 1343, 1349 (D.C. Cir.
2000) (concluding that "personal jurisdiction surely cannot be
based solely on the ability of [forum] residents to access the
defendants' websites, for this does not by itself show any
persistent course of conduct by the defendants in the [forum]");
Mink v. AAAA Dev. LLC, 190 F.3d 333, 337 (5th Cir. 1999)
(explaining that a similar website was little "more than passive
advertisement which [was] not grounds for the exercise of personal
jurisdiction"). This is especially true "[g]iven the
7
A Corp. attempts to rely on the fact that the Yellow Pages
once mistakenly linked All American's electronic Yellow Pages
advertisement to A Corp.'s website, and that All American's website
often appears near A Corp.'s website following certain website
browser searches. But the "unilateral activity of . . . a third
person is not an appropriate consideration when determining
whether a defendant has sufficient contacts with a forum State to
justify an assertion of jurisdiction." Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 417 (1984).
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'omnipresence' of internet websites." Cossaboon v. Maine Med.
Ctr., 600 F.3d 25, 35 (1st Cir. 2010) (quoting McBee, 417 F.3d at
124). To conclude otherwise, even if restricted to trademark
infringement cases, could improperly erode important limits on
personal jurisdiction over out-of-state defendants.
C. Reasonableness
Finally, to assess reasonableness, we would generally
consider:
(1) the defendant's burden of appearing [in the
forum state], (2) the forum state's interest in
adjudicating the dispute, (3) the plaintiff's
interest in obtaining convenient and effective
relief, (4) the judicial system's interest in
obtaining the most effective resolution of the
controversy, and (5) the common interests of all
sovereigns in promoting substantive social
policies.
C.W. Downer & Co., 771 F.3d at 69 (alteration in original) (quoting
Ticketmaster–New York, Inc. v. Alioto, 26 F.3d 201, 209 (1st
Cir.1994)). But these factors are only "intended to aid the court
in achieving substantial justice," and play a larger role in close
cases. Adelson v. Hananel, 510 F.3d 43, 51 (1st. Cir. 2007); see
also Ticketmaster, 26 F.3d at 210 (explaining that "the
reasonableness prong of the due process inquiry evokes a sliding
scale: the weaker the plaintiff's showing on the first two prongs
(relatedness and purposeful availment), the less a defendant need
show in terms of unreasonableness to defeat jurisdiction").
Accordingly, we need not dwell on these so-called "gestalt" factors
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here. Ticketmaster, 26 F.3d at 209. Having concluded that A Corp.
failed to satisfy the first two prongs of the due process inquiry,
its argument for specific jurisdiction fails.
For the reasons discussed above, the district court's
dismissal for lack of personal jurisdiction is affirmed. Costs to
the appellee.
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