DAVID MINK V. AAAA DEVELOPMENT, LLC
No. 98-20770
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
190 F.3d 333
September 17, 1999, Decided
JUDGES: Before WIENER, DeMOSS, and PARKER, Circuit Judges.
OPINIONBY:
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.
[*335] 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
[**2] 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.
On November 7, 1997, Mink [**3] 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). [**4] 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 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,
[*336] Ltd., 176 F.3d 867, 871 (5th Cir. 1999)
(citing Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex.
1990)). [**5]
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, 90 L.
Ed. 95, 66 S. Ct. 154 (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 Colombia, S.A. v. Hall, 466 U.S. 408,
414 n.8, 80 L. Ed. 2d 404, 104 S. Ct. 1868 (1984)). General
jurisdiction exists when a defendant's contacts
with [**6] the forum state are unrelated to
the cause of action but are "continuous and systematic." See id.
(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 [**7] 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 (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 [**8] 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 [*337] 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 [**9] 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 permits consumers to interact with the
company. n1 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, 61 F.
Supp. 2d 1074, 1999 WL 635460, *3 & n.7 (C.D. Cal.
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.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 The record contains the printed screens from the website,
which contain the line, "For more information,
e-mail sales at 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 jurisdiction.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**10]
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 personal jurisdiction is AFFIRMED.