Getagadget v. Jet Creations ( 2022 )

Case: 19-51019 Document: 00516259424 Page: 1 Date Filed: 03/30/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
March 30, 2022
No. 19-51019 Lyle W. Cayce
Clerk
Getagadget, L.L.C.,
Plaintiff—Appellant,
versus
Jet Creations Incorporated,
Defendant—Appellee.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:19-CV-330
Before Dennis, Southwick, and Ho, Circuit Judges.
Per Curiam:*
This appeal concerns whether a Texas federal district court can
exercise personal jurisdiction over a nonresident defendant when (1) the
defendant’s allegedly infringing product was sold on its website and the
websites of national retailers and (2) the plaintiff alleges only two sales of the
product into Texas, both of which were purchases made by the plaintiff’s
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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counsel. The district court determined that such a defendant lacks minimum
contacts with the forum state. We conclude that, regardless of whether the
defendant’s purported contacts with Texas would be sufficient for courts in
the state to try claims related to those contacts, the specific claims that the
plaintiff brought in this case do not arise from them. Accordingly, we
AFFIRM.
I.
Getagadget, LLC (Getagadget) is a limited liability company
organized under the laws of Texas, and it holds a registered trademark to the
name “BIG BITE.” Under this trademark, Getagadget sells a beach toy
called the “Big Bite Shark Beach Bucket,” which is a sand bucket shaped like
a shark’s head. Jet Creations, Inc. (Jet) is a Virginia corporation with its
principal place of business in Virginia. It sells a product called the “Big Bite
T-Rex! Prehistoric Float,” which is a pool float shaped like a tyrannosaurus
rex’s head.
Jet markets and sells the pool float product to customers nationwide
directly through its website. The product is also available through online
intermediaries, including the websites of Amazon, Walmart, and
SwimOutlet. Jet itself fulfills at least some of the orders that are placed
through the online intermediaries.
In March 2019, Getagadget’s counsel purchased the Big Bite T-Rex!
Prehistoric Float on Amazon, and Jet fulfilled the order by shipping the
product to counsel’s Texas address. That same month, Getagadget’s
counsel also ordered the Big Bite T-Rex! Prehistoric Float through
Walmart’s website and had it delivered to a physical Walmart store located
in Texas, where counsel then picked it up. The two sales totaled $60.46.
These sales to Getagadget’s counsel, along with Jet’s nationally accessible
website and the availability of its product on the websites of national retailers,
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constitute the entirety of Jet’s contacts with Texas that Getagadget alleged
in this case.
In May 2019, Getagadget sued Jet in federal district court in Texas,
alleging that the Big Bite T-Rex! Prehistoric Float infringed on its trademark.
Getagadget asserted claims for trademark infringement, unfair competition
and false designation of origin, and trade dress infringement under both
federal and Texas law.
Jet entered a special appearance and filed a motion to dismiss the case
for, inter alia, a lack of personal jurisdiction, arguing that it lacked any
significant contacts with Texas. In its response to Jet’s motion, Getagadget
included a single sentence requesting that the court permit jurisdictional
discovery. Specifically, Getagadget asked for “limited discovery with
Defendant and the other nationwide retailers listed [in its response] that have
retail stores in Texas for sales in Texas and in this Judicial District in addition
to limited discovery with regard to Defendant and any other related entities
with which Defendant may ship or sell infringing products.”
Ruling only on the issue of personal jurisdiction, the district court
granted Jet’s motion and dismissed the case. The court reasoned that the
purchases by plaintiff’s counsel were “unilateral acts” and that, without
more, they were insufficient to make a prima facie showing of the minimum
contacts needed for personal jurisdiction. The court did not address
Getagadget’s request for jurisdictional discovery, but it appears to have
implicitly denied it by dismissing the case. See Snider v. L-3 Comm’ns Vertex
Aerospace, L.L.C., 946 F.3d 660, 667 (5th Cir. 2019) (“When a district court
enters a final judgment, it has implicitly denied any outstanding motions,
even if the court does not explicitly deny a particular motion.”). Getagadget
timely appealed.
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II.
This court reviews de novo a district court’s determination regarding
personal jurisdiction. Adams v. Unione Mediterranea Di Sicurta, 220 F.3d
659, 667 (5th Cir. 2000). “Where, as here, the district court dismissed [the
case] without conducting an evidentiary hearing, the plaintiff bears the
burden of establishing only a prima facie case of personal jurisdiction. We
accept the plaintiff’s uncontroverted, nonconclusional factual allegations as
true and resolve all controverted allegations in the plaintiff’s favor.”
Carmona v. Leo Ship Mgmt., Inc., 924 F.3d 190, 193 (5th Cir. 2019) (internal
quotation marks and citation omitted).
A district court’s denial of a plaintiff’s request for jurisdictional
discovery is reviewed for abuse of discretion. Monkton Ins. Servs. v. Ritter,
768 F.3d 429, 434 (5th Cir. 2014).
III.
On appeal, Getagadget raises two points of error. 1 First, it contends
that it established a prima facie case for personal jurisdiction and that the
district court erred by concluding otherwise. Second, Getagadget argues
that, even if it failed to establish a prima facie case, the district court abused
1
Preliminarily, we note that the district court did not enter a separate Federal Rules
of Civil Procedure Rule 58 final judgment in this case. This is not fatal to our appellate
jurisdiction, however, when “an order of dismissal . . . was ‘the final decision in the case’
and the appellee ‘did not object to the taking of the appeal in the absence of a judgment.’”
Whitaker v. City of Houston, 963 F.2d 831, 833 (5th Cir. 1992) (quoting Banker’s Trust Co.
v. Mallis, 435 U.S. 381, 387-88 (1978)). Both of these conditions are satisfied here.
Additionally, no outstanding motions exist in the record that have been left unresolved by
the absence of a separate final judgment, and Getagadget’s notice of appeal would have
been timely had the district court’s dismissal order been a Rule 58 judgment, which are
both factors counseling in favor of our exercising our discretion to assume appellate
jurisdiction over the case. See id. at 834 (citing Townsend v. Lucas, 745 F.2d 933 (5th Cir.
1984) (per curiam)). We accordingly elect to resolve this case on the merits.
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its discretion by dismissing the case without allowing jurisdictional discovery.
We address these issues in turn.
A.
Personal jurisdiction, or jurisdiction in personam, is the authority of a
court to issue decrees that bind a specific defendant. See Burger King Corp.
v. Rudzewicz, 471 U.S. 462, 472 (1985). Under Federal Rule of Civil
Procedure 4(k)(1)(A), a federal court’s personal jurisdiction over a defendant
is established if the defendant is properly served, “the forum state’s long-
arm statute extends to the nonresident defendant[,] and the exercise of
jurisdiction comports with due process.” Carmona, 924 F.3d at 193.
“Because Texas’s long-arm statute is coextensive with the Due Process
Clause of the Fourteenth Amendment, the [latter] two inquiries merge.” Id.
Courts have long held that basic concepts of fairness require “that
individuals have fair warning that a particular activity may subject them to
the jurisdiction of a foreign sovereign.” Burger King, 471 U.S. at 472 (cleaned
up). Thus, “[t]he Due Process Clause of the Fourteenth Amendment
guarantees that no federal court may assume jurisdiction in personam of a
nonresident defendant unless the defendant has meaningful ‘contacts, ties,
or relations’ with the forum state.” Luv N’ care, Ltd. v. Insta-Mix, Inc., 438
F.3d 465, 469 (5th Cir. 2006) (quoting Int’l Shoe Co. v. Washington, 326 U.S.
310, 319 (1945)). By limiting courts in this way, “the Due Process Clause
‘gives a degree of predictability to the legal system that allows potential
defendants to structure their primary conduct with some minimum
assurance as to where that conduct will and will not render them liable to
suit.’” Burger King, 471 U.S. at 472 (quoting World-Wide Volkswagen Corp.
v. Woodson, 444 U.S. 286, 297 (1980)).
The concept of personal jurisdiction is divided into general and
specific jurisdiction. General personal jurisdiction—which allows a court to
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try all actions against a defendant, regardless of subject matter—requires that
a defendant be so continuously and systematically connected with the forum
state as to be “essentially at home” there. Goodyear Dunlop Tires Operations,
S.A. v. Brown, 564 U.S. 915, 919 (2011). Getagadget does not contend that
the Texas federal district court possessed general jurisdiction over Jet.
Instead, Getagadget argues that the district court had specific
personal jurisdiction over Jet that should have allowed it to try specifically
the product infringement claims at issue in this case. “A federal court may
satisfy the constitutional requirements for specific jurisdiction by a showing
that the defendant has ‘minimum contacts’ with the forum state such that
imposing a judgment” based on the particular claims that the plaintiff asserts
“would not ‘offend traditional notions of fair play and substantial justice.’”
Luv N’ care, 438 F.3d at 469 (quoting Int’l Shoe, 326 U.S. at 316). This court
has “consolidated the [specific] personal jurisdiction inquiry into a
convenient three-step analysis.” Id. When evaluating whether specific
jurisdiction exists, we consider:
(1) whether the defendant has minimum contacts with the
forum state, i.e., whether it purposely directed its activities
toward the forum state or purposefully availed itself of the
privileges of conducting activities there; (2) whether the
plaintiff’s cause of action arises out of or results from the
defendant’s forum-related contacts; and (3) whether the
exercise of personal jurisdiction is fair and reasonable.
Nuovo Pignone v. STORMAN ASIA M/V, 310 F.3d 374, 378 (5th Cir. 2002),
abrogated on other grounds by Water Splash, Inc. v. Menon, 137 S. Ct. 1504,
1507-08 (2017), (citing Burger King, 471 U.S. at 474).
The district court determined that the two sales to Getagadget’s
counsel were “unilateral act[s]” on the part of the plaintiff that were
designed to “manufacture” personal jurisdiction, and it held that the sales
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thus did not amount to minimum contacts with Texas under the first prong
of the analysis. The Supreme Court has repeatedly held that the “unilateral
activity of another party or third person is not an appropriate consideration
when determining whether a defendant has sufficient contacts with a forum
State.” Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 417
(1984). For example, in World-Wide Volkswagen Corp. v. Woodson, the
plaintiffs had purchased an automobile from a dealership in New York and
eventually ended up sustaining injuries during a car accident in Oklahoma.
See 444 U.S. at 288. Plaintiffs attempted to sue the dealership in Oklahoma,
but the Supreme Court held that even if it was “foreseeable” that purchasers
of the defendants’ cars would take the cars to Oklahoma, this did not qualify
as a minimum contact between the dealership and the state. Id. at 298. As
the Court put it, “the mere unilateral activity of those who claim some
relationship with a nonresident defendant cannot satisfy the requirement of
contact with the forum State.” Id. (internal quotation marks and citation
omitted). Based on this reasoning, a number of district courts have
concluded that purchases made by plaintiffs for the purpose of
“manufacturing” jurisdictional contacts are unilateral actions that cannot be
credited. See, e.g., Buccellati Holding Italia SPA v. Laura Buccellati, LLC, 935
F. Supp. 2d 615, 623 (S.D.N.Y. 2013) (collecting cases). “The logic of these
cases is that a plaintiff cannot rely solely on its own manipulative acts to
create jurisdiction, and that in such circumstances the defendant cannot be
said to have purposefully availed itself of the privilege of conducting activities
in the state selected by plaintiff.” Id. at 624.
On the other hand, a sale made or fulfilled by the defendant directly to
a plaintiff that the defendant knows is located in the forum-state is not
unilateral activity in the strictest sense of the term, as it necessarily requires
the defendants’ willing participation in the transaction. In other contexts,
the Supreme Court has held that similar acts on the part of the defendant
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constituted enough activity directed at a forum state to confer specific
personal jurisdiction. In McGee v. International Life Insurance Co., 355 U.S.
220, 223 (1957), for instance, the Supreme Court held that an out-of-state
insurance company that mailed a solicitation to a customer in California and
then accepted payment mailed from the customer’s California address for
the lifetime of the policy had created a “substantial connection” with
California sufficient to subject it to the state’s jurisdiction. Indeed, at least
two federal appeals courts have considered sales made to a plaintiff or its
agent in evaluating whether minimum contacts exist, with one expressly
holding that such purchases are not unilateral actions and can be included in
the evaluation. See Illinois v. Hemi Grp. LLC, 622 F.3d 754, 758 (7th Cir.
2010); Chloé v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 171 (2d Cir.
2010).
Ultimately, we need not decide whether the two sales to Texas would
be sufficient to permit the Texas federal district court to exercise personal
jurisdiction over Jet had Getagadget brought, for example, product liability
claims based on injuries it suffered as a result of Jet’s fulfilling the orders with
defective products. We instead resolve this case at the second prong of the
specific jurisdiction analysis. Getagadget has not shown that its trademark
infringement and unfair competition claims “ar[o]se[] out of” the two sales
that were made to its attorney, regardless of whether those sales would
amount to sufficient minimum contacts with Texas to raise other types of
claims related to the transactions. 2 Luv N’ care (quoting Nuovo Pignon, 310
F.3d at 378).
2
Getagadget also argues specific jurisdiction exists because the allegedly infringing
product was available for order on several websites that were accessible to anyone with an
internet connection, including internet users in Texas. But courts have universally held
that “the mere maintenance of a website that can be reached by residents of the forum state
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The basic theory underpinning specific jurisdiction is that it is fair for
a state’s courts to hold a defendant accountable for conduct that the
defendant directs toward the state that then causes injury to the state or its
residents. Burger King, 471 U.S. at 472-73. Thus, although it is necessary for
a plaintiff to demonstrate that a defendant possesses minimum contacts with
a forum state to establish personal jurisdiction over that defendant, that alone
is not sufficient to try all claims against the defendant. See Luv N’ care, 438
F.3d at 469. Minimum contacts only permit a court to exercise specific
jurisdiction over claims that arise from those contacts. See id. When
evaluating whether the claims that Getagadget asserts arose from the sales
that Jet made to Getagadget’s counsel, it’s important to recall that “[t]he
gravamen for any action of trademark infringement or common law unfair
competition is whether the challenged mark is likely to cause confusion.”
Marathon Mfg. Co. v. Enerlite Prod. Corp., 767 F.2d 214, 217 (5th Cir. 1985).
In this light, Getagadget’s use of sales to its own counsel as a basis for
personal jurisdiction is “particularly problematic,” 721 Bourbon, Inc. v. House
of Auth, LLC, 140 F. Supp. 3d 586, 596 (E.D. La. 2015), because Getagadget
cannot reasonably argue that any consumer confusion arose out of Jet’s
selling and shipping the infringing product to Getagadget’s counsel.
Indeed, many “courts considering similar claims have rejected
attempts by plaintiffs to manufacture contacts with the forum state by having
will not be sufficient to satisfy the purposeful availment prong of the specific personal
jurisdiction test.” 4A Charles Alan Wright & Arthur R. Miller, Fed.
Prac. & Proc. Civ. § 1073 (4th ed); see also Trintec Indus., Inc. v. Pedre Promotional
Prod., Inc., 395 F.3d 1275, 1281 (Fed. Cir. 2005) (“[T]he ability of District residents to
access the defendants’ websites . . . does not by itself show any persistent course of conduct
by the defendants in the District.” (quoting GTE New Media Servs. Inc. v. BellSouth
Corp., 199 F.3d 1343, 1349 (D.C. Cir. 2000))). Because the bare existence of these websites
does not demonstrate any conduct targeting Texas or its residents on the part of Jet, we do
not consider them in the analysis.
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an agent purchase the alleged infringing products.” U.S. Olympic Comm. v.
Does 1-10, No. C 08-03514 JSW, 2008 WL 2948280, at *2 (N.D. Cal. July 25,
2008) (citing Millennium Enterprises, Inc. v. Millennium Music, LP, 33
F.Supp.2d 907, 911 (D. Or. 1999); Mattel, Inc. v. Anderson, 2005 WL
1690528, *2 (S.D.N.Y. July 18, 2005); and ISI Brands, Inc. v. KCC Int’l, Inc.,
458 F.Supp.2d 81 (E.D.N.Y. 2006)); see also 721 Bourbon, 140 F. Supp. 3d at
596-97. We likewise now hold that, in order to demonstrate that its
trademark infringement and unfair competition claims arose out of sales that
Jet directed at Texas, Getagadget was required to show that those sales were
to customers who could have been potentially deceived by the alleged
infringement. Getagadget’s counsel’s transactions will not suffice because
counsel “knew exactly with whom []he was dealing and knew that defendants
were not associated in any way with plaintiff.” Millennium Enterprises, 33
F.Supp.2d at 911. “Clearly, [Getagadget and its counsel were] not confused
as to the source of the products in question.” 721 Bourbon, Inc., 140 F. Supp.
3d at 596.
Thus, irrespective of whether the sales alleged here would amount to
sufficient minimum contacts between Jet and Texas to allow the state’s
courts to try claims against Jet that actually arose from those transactions,
they cannot be the basis for Texas courts’ exercising specific personal
jurisdiction with regard to the claims that Getagadget brought here. The
specific claims at issue are largely unrelated to those particular transactions,
and the district court was therefore correct that Getagadget failed to make a
prima facie case for personal jurisdiction.
B.
In the alternative, Getagadget argues that the district court abused its
discretion by denying it jurisdictional discovery. Getagadget specifically
points to its assertions regarding (1) Jet’s products being available on several
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nationally accessible websites and (2) the two sales of the purportedly
infringing product into the forum state. Based on these two considerations,
Getagadget contends that it made the preliminary showing of jurisdiction
sufficient to entitle it to discovery to determine whether Jet had additional
contacts with the forum.
“As the party opposing dismissal and requesting discovery,
[Getagadget] bear[s] the burden of demonstrating the necessity of
discovery.” Davila v. United States, 713 F.3d 248, 264 (5th Cir. 2013).
“[T]his Court affirms denials of discovery on questions of personal
jurisdiction in cases where discovery sought could not have added any
significant facts.” Alpine View Co. v. Atlas Copco AB, 205 F.3d 208, 221 (5th
Cir. 2000) (internal quotation marks and citation omitted). But “[i]f a
plaintiff presents factual allegations that suggest with reasonable particularity
the possible existence of the requisite contacts between the party and the
forum state, the plaintiff’s right to conduct jurisdictional discovery should be
sustained.” Toys ‘R’ Us, Inc. v. Step Two, S.A., 318 F.3d 446, 456 (3d Cir.
2003) (internal quotation marks and citation omitted); Embry v. Hibbard
Inshore, L.L.C., 803 F. App’x 746, 749 (5th Cir. 2020) (same). “A district
court’s discovery decision will be reversed only if it is arbitrary or clearly
unreasonable and the appellant demonstrates prejudice resulting from the
decision.” Fielding v. Hubert Burda Media, Inc., 415 F.3d 419, 428 (5th Cir.
2005) (internal quotation marks and citation omitted).
Preliminarily, it is unclear whether this issue was sufficiently raised
before the district court, where Getagadget only mentioned it in a single
sentence in its response to Jet’s motion to dismiss. In similar circumstances,
however, the Third and Ninth Circuits have directed district courts to
authorize jurisdictional discovery. See Metcalfe v. Renaissance Marine, Inc.,
566 F.3d 324, 335 n.9 (3d Cir. 2009) (instructing the district court to permit
jurisdictional discovery on remand even though plaintiffs’ “never formally
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moved for jurisdictional discovery” and instead “mention[ed] the possibility
of conducting such discovery in their opposition to the motion to dismiss”);
K-Swiss Inc. v. GTFM, Inc., 278 F. App’x 772, 773 (9th Cir. 2008) (same); cf.
Penaloza v. Drummond Co., Inc., 662 F. App’x 674, 676, 678-79 (11th Cir.
2016) (affirming the denial of jurisdictional discovery when request raised in
response to show-cause order). Further, in several unpublished decisions,
district courts in this circuit have ruled on jurisdictional discovery requests
first raised in response to a motion to dismiss. See, e.g., ETS-Lindgren, Inc. v.
MVG, Inc., No. A-15-CA-00456, 2015 WL 6756186, at *2, 5 (W.D. Tex. Nov.
4, 2015) (considering, but ultimately denying, jurisdictional discovery
request when the request was raised in response to a motion to dismiss);
Freescale Semiconductor, Inc. v. Amtran Tech. Co., No. A-12-CV-644, 2013 WL
12121034, at *1 (W.D. Tex. June 12, 2013) (granting limited jurisdictional
discovery to request made in response to a motion to dismiss). Jet does not
argue that the issue was not properly brought to the district court’s attention,
and thus we assume arguendo that it is properly before us.
So long as there is not an indication that a district court inadvertently
overlooked some crucial aspect of a pending discovery request, it is not a per
se abuse of discretion for a district court to implicitly deny the request by
disposing of the case without addressing it. See Snider, 946 F.3d at 667; see
also Mendez v. Poitevent, 823 F.3d 326, 336-37 (5th Cir. 2016) (no abuse of
discretion where district court implicitly denied Rule 56(d) motion for
discovery by granting summary judgment); cf. Galaxy Tire, Inc. v. Terwilliger,
189 F.3d 469 (5th Cir. 1999) (unpublished) (finding an abuse of discretion
where the district court stated that the plaintiffs “offered no explanation as
to what additional discovery it needed” despite plaintiffs having submitted
an affidavit detailing this information). Instead, we consider whether the
requesting party has made specific allegations that the evidence it seeks is
likely to support a finding of jurisdiction. Monkton Ins. Servs., 768 F.3d at
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434; see also Whitener v. Pliva, Inc., 606 F. App’x 762, 765 (5th Cir. 2015)
(“[B]ecause the [plaintiffs] identify no evidence that they are likely to
discover that would call our lack of personal jurisdiction into question, the
district court did not abuse its discretion in denying the[ir] motion for
additional jurisdictional discovery.”). It is not an abuse of discretion for a
district court to deny jurisdictional discovery when the plaintiff “does not
identify . . . how [the discovery] would show that [the defendant] has
sufficient minimum contacts with” the forum state. Embry, 803 F. App’x at
749.
In its briefing to this court, Getagadget avers that its request for
jurisdictional discovery “identified the discovery needed, the facts expected
to be obtained, and how that information would support” the exercise of
jurisdiction. However, its request to the district court was not as specific or
detailed as it now claims. What Getagadget actually requested was discovery
related to Jet and “other nationwide retailers listed” in its filings that have
retail stores in Texas “for sales in Texas” and “limited discovery with
regards to Defendant and any other related entities with which Defendant
may ship or sell infringing products.”
Conspicuously absent from this broad request and from every other
filing Getagadget has made in this case is any allegation that Jet or its
intermediaries have actually stocked, advertised, or sold the purportedly
infringing product in Texas other than with respect to the individual sales to
Getagadget’s counsel. Beyond its own efforts to generate jurisdiction,
Getagadget has not alleged that any clear link exists between Texas and the
purported infringement that is the subject of this action. The Due Process
Clause requires that a defendant or the defendant’s challenged conduct have
some “substantial connection” to the forum in which an action is brought,
McGee, 355 U.S. at 223, and merely being a convenient or advantageous
forum for the plaintiff will not suffice. With no obvious substantial
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connection alleged in this case, the district court was not required to
authorize a fishing expedition for Getagadget to discover in the first instance
whether or not it had actually been injured in Texas, the forum in which it
would most prefer to pursue this suit. See Toys ‘R’ Us, 318 F.3d at 456(requiring that a defendant make “factual allegations that suggest with
reasonable particularity the possible existence of the requisite contacts” in
order to obtain jurisdictional discovery). Accordingly, the district court did
not abuse its discretion in implicitly denying Getagadget’s request for
jurisdictional discovery.
***
Based on the foregoing, we AFFIRM the district court’s
determination that it lacked personal jurisdiction over Jet, its implicit denial
of Getagadget’s request for jurisdictional discovery, and its dismissal of the
case.
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