UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-20770
DAVID MINK,
Plaintiff/Appellant,
VERSUS
AAAA DEVELOPMENT LLC, doing business as
Adamant Development, doing business as Four A
Development, doing business as Upfront, ET AL,
Defendants,
AAAA DEVELOPMENT LLC, doing business as
Adamant Development, doing business as Four A
Development, doing business as Upfront, and
DAVID MIDDLEBROOK,
Defendants/Appellees.
Appeal from the United States District Court
for the Southern District of Texas
September 17, 1999
Before WIENER, DeMOSS, and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
David Mink appeals the district court’s dismissal of his
complaint for lack of personal jurisdiction. We affirm.
I. FACTS AND PROCEEDINGS
David Mink is a Texas resident who works in the retail
furniture business. In January 1997, Mink claims that he began to
develop a computer program, the Opportunity Tracking Computer
System (“OTC”), designed to track information on sales made and
opportunities missed on sales not made. On May 13, 1997, Mink
submitted a patent application for the computer software and
hardware that he developed to the United States Patent and
Trademark Office. He also submitted a copyright application for
the OTC to the United States Copyright Office.
Mink claims that in June 1997 he was approached by a Colorado
resident named Richard Stark at a trade show. Stark allegedly
asked Mink if he would be interested in marketing the OTC product
with Stark’s software at an upcoming computer seminar. Mink gave
Stark a full demonstration of the OTC system, including its written
material. While Mink initially declined Stark’s offer to market
the software together, Mink later contacted Stark to discuss the
possibility of Stark marketing his product.
Between June 1997 and October 1997, Stark allegedly shared all
of Mink’s ideas and information on the OTC system with David
Middlebrook. According to Mink’s complaint, Middlebrook and two
companies, AAAA Development and Profitsystems, conspired to copy
Mink’s copyrighted and patent-pending OTC system and create an
identical system of their own for financial gain.
AAAA Development is a Vermont corporation with its principal
place of business in Vermont. Middlebrook is a Vermont resident.
Neither AAAA Development nor Middlebrook own property in Texas.
Mink is silent concerning where his contacts with the defendants
occurred. However, we infer that the contacts were not in Texas
based on the statement in Middlebrook’s affidavit that AAAA has
not made any sales in Texas nor has it had any agents or employees
travel to Texas or represent it in Texas. The company has
advertised in a national furniture trade journal and maintains a
website advertising its sales management software on the Internet.
2
On November 7, 1997, Mink filed his original complaint in the
United States District Court for the Southern District of Texas
against AAAA Development and David Middlebrook, alleging that they
conspired to copy Mink’s computer program in violation of federal
copyright and patent pending rights. AAAA Development and
Middlebrook moved to dismiss for lack of personal jurisdiction.
The district court granted their motions. Mink filed a motion for
reconsideration of the order dismissing AAAA and Middlebrook,
adding allegations that the defendants had been actively targeting
customers in Texas with cold calls and asserting for the first time
that AAAA’s Internet website, accessible from Texas, could fulfill
the minimum contacts requirement for the exercise of personal
jurisdiction. The district court denied the motion for
reconsideration. We affirm.
II. DISCUSSION
The sole issue on appeal is whether the district court erred
in dismissing defendants AAAA and Middlebrook for a lack of
personal jurisdiction. The district court’s determination of the
exercise of personal jurisdiction over a defendant is a question of
law subject to de novo review. See Felch v. Transportes Lar-Mex
S.A. de CV, 92 F.3d 320, 324 (5th Cir. 1996). When a nonresident
defendant challenges personal jurisdiction, the plaintiff bears the
burden of establishing the district court’s jurisdiction over the
defendant. See Wilson v. Belin, 20 F.3d 644, 648 (5th Cir. 1994).
We conclude the district court did not err in dismissing the
defendants for lack of personal jurisdiction.
A federal court sitting in diversity may exercise personal
jurisdiction over a nonresident defendant if (1) the long-arm
statute of the forum state confers personal jurisdiction over that
3
defendant; and (2) exercise of such jurisdiction by the forum state
is consistent with due process under the United States
Constitution. See Latshaw v. H.E. Johnston, 167 F.3d 208, 211 (5th
Cir. 1999). Because Texas’s long-arm statute has been interpreted
to extend to the limits of due process, we only need to determine
whether subjecting AAAA and Middlebrook to suit in Texas would be
consistent with the Due Process Clause of the Fourteenth Amendment.
See Electrosource, Inc. v. Horizon Battery Technologies, Ltd., 176
F.3d 867, 871 (5th Cir. 1999) (citing Schlobohm v. Schapiro, 784
S.W.2d 355, 357 (Tex. 1990)).
The Due Process Clause of the Fourteenth Amendment permits the
exercise of personal jurisdiction over a nonresident defendant when
(1) that defendant has purposefully availed himself of the benefits
and protections of the forum state by establishing “minimum
contacts” with the forum state; and (2) the exercise of
jurisdiction over that defendant does not offend “traditional
notions of fair play and substantial justice.” Latshaw, 167 F.3d
at 211 (quoting International Shoe Co. v. State of Washington, 326
U.S. 310, 316 (1945)).
The “minimum contacts” aspect of the analysis can be
established through “contacts that give rise to ‘specific’ personal
jurisdiction or those that give rise to ‘general’ personal
jurisdiction.” Wilson, 20 F.3d at 647. Specific jurisdiction
exists when the nonresident defendant’s contacts with the forum
state arise from, or are directly related to, the cause of action.
See id. (citing Helicopteros Nacionales de Columbia, S.A. v. Hall,
466 U.S. 408, 414 n.8 (1984)). General jurisdiction exists when a
defendant’s contacts with the forum state are unrelated to the
cause of action but are “continuous and systematic.” See id.
4
(citing Helicopteros, 466 U.S. at 414 n.9). Because we conclude
that Mink has not established any contacts directly related to the
cause of action required for specific jurisdiction, we turn to the
question of whether general jurisdiction has been established.
At the outset, we note that Mink has not met his burden of
establishing that the district court had personal jurisdiction over
defendant Middlebrook. Mink, however, contends that the district
court could exercise personal jurisdiction over AAAA because its
World Wide Website is accessible by Texas residents. The issue of
exercising personal jurisdiction over a defendant who operates an
Internet website without other contacts with the forum state is a
question of first impression in the Fifth Circuit.
Courts addressing the issue of whether personal jurisdiction
can be constitutionally exercised over a defendant look to the
“nature and quality of commercial activity that an entity conducts
over the Internet.” Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.
Supp. 1119, 1124 (W.D. Pa. 1997). The Zippo decision categorized
Internet use into a spectrum of three areas. At the one end of the
spectrum, there are situations where a defendant clearly does
business over the Internet by entering into contracts with
residents of other states which “involve the knowing and repeated
transmission of computer files over the Internet....” Zippo, 952
F. Supp. at 1124. In this situation, personal jurisdiction is
proper. See id. (citing CompuServe, Inc. v. Patterson, 89 F.3d
1257 (6th Cir. 1996)). At the other end of the spectrum, there are
situations where a defendant merely establishes a passive website
that does nothing more than advertise on the Internet. With
passive websites, personal jurisdiction is not appropriate. See
id. (citing Bensusan Restaurant Corp., v. King, 937 F. Supp. 295
5
(S.D.N.Y. 1996), aff’d, 126 F.3d 25 (2d Cir. 1997)). In the middle
of the spectrum, there are situations where a defendant has a
website that allows a user to exchange information with a host
computer. In this middle ground, “the exercise of jurisdiction is
determined by the level of interactivity and commercial nature of
the exchange of information that occurs on the Website.” Id.
(citing Maritz, Inc. v. Cybergold, Inc., 947 F. Supp. 1328 (E.D.
Mo. 1996)). We find that the reasoning of Zippo is persuasive and
adopt it in this Circuit.
Applying these principles to this case, we conclude that
AAAA’s website is insufficient to subject it to personal
jurisdiction. Essentially, AAAA maintains a website that posts
information about its products and services. While the website
provides users with a printable mail-in order form, AAAA’s toll-
free telephone number, a mailing address and an electronic mail
(“e-mail”) address, orders are not taken through AAAA’s website.
This does not classify the website as anything more than passive
advertisement which is not grounds for the exercise of personal
jurisdiction. See Zippo, 952 F. Supp. at 1124.
This case does not fall into the spectrum of cases where a
defendant clearly conducted business over the Internet nor does it
fall into the middle spectrum of interactivity where the defendant
and users exchange information through the Internet. There was no
evidence that AAAA conducted business over the Internet by engaging
in business transactions with forum residents or by entering into
contracts over the Internet. See CompuServe v. Patterson, 89 F.3d
at 1264-67 (6th Cir. 1996); Zippo, 952 F. Supp. at 1125-26.
We note that AAAA’s website provides an e-mail address that
6
permits consumers to interact with the company.1 There is no
evidence, however, that the website allows AAAA to do anything but
reply to e-mail initiated by website visitors. In addition, AAAA’s
website lacks other forms of interactivity cited by courts as
factors to consider in determining questions of personal
jurisdiction. For example, AAAA’s website does not allow consumers
to order or purchase products and services on-line. See Stomp,
Inc., v. Neato, LLC, SA CV 99-669, 1999 WL 635460, *3 & n.7 (C.D.
Cal. Aug. 6, 1999) (describing consumers’ ability to purchase and
pay for products on-line). In fact, potential customers are
instructed by the website to remit any completed order forms by
regular mail or fax.
In this case, the presence of an electronic mail access, a
printable order form, and a toll-free phone number on a website,
without more, is insufficient to establish personal jurisdiction.
Absent a defendant doing business over the Internet or sufficient
interactivity with residents of the forum state, we cannot conclude
that personal jurisdiction is appropriate.
III. CONCLUSION
Based on the foregoing, the district court’s decision to
dismiss Defendants Middlebrook and AAAA Development for lack of
1
The record contains the printed screens from the website,
which contain the line, “For more information, e-mail
sales@upfrontsoft.com or call toll free (888) 286-6286.” The e-
mail address is underlined and printed in a different color ink,
possibly indicating an e-mail link, as opposed to simply an e-
mail address. The parties have not focused the Court upon the
possibility that the e-mail address includes a link feature, and
the Court is unable to verify this feature without going outside
the existing record. We note, however, that the mere existence
of an e-mail link, without more, would not change this Court’s
conclusion that there is no personal jurisdiciton.
7
personal jurisdiction is AFFIRMED.
8