Manufactured Contacts in the Context of Personal Jurisdiction

The advent of the Internet has created several interesting and distinct legal questions. One such question is whether the maintenance of an interactive website alone can subject a non-resident defendant to personal jurisdiction in a forum state that the defendant has no other contacts with. The Eleventh Circuit and other Courts of Appeal around the country have clearly ruled that maintenance of an interactive website alone is insufficient to establish minimum contacts necessary to confer personal jurisdiction.

However, another interesting question arises from this legal principle. Can a non-resident defendant who has no contact with a forum state, other than an interactive website fully accessible worldwide, be subjected to litigation in a foreign state where the only sale into that state by the defendant was one manufactured by the plaintiff for the purpose of obtaining jurisdiction? Common sense would lead some to the conclusion that this should not be a proper way to subject a non-resident defendant to jurisdiction in a foreign state. What does the law say?

An oft cited principle of personal jurisdiction under the Federal Due Process clause is that a non-resident defendant must purposefully avail itself of the benefits of conducting business in the forum state or purposefully direct activity into the forum state. The purposeful availment/direction requirement “ensures that a defendant will not be haled into a jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts.” See, Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) (noting that contacts resulting from the “unilateral activity of another party or third person” are not attributable to a defendant).

In intellectual property cases it is common for a plaintiff to seek personal jurisdiction over a non-resident defendant based upon Internet sales made to the plaintiff itself or to plaintiff’s counsel or its representatives/agents through the non-resident defendant’s website. Many courts hold that such forum related contacts manufactured by the plaintiff are not sufficient to evidence purposeful direction by a non-resident defendant into the forum state. See, e.g., Millennium Enters., Inc. v. Millennium Music, LP, 33 F. Supp. 2d 907, 923 (D. Or. 1999); Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 395, 400-01 (4th Cir. 2003); ISI Brands, Inc. v. KCC Int’l, Inc., 458 F. Supp. 2d 81, 88-89 (E.D.N.Y. 2006); Shamsuddin v. Vitamin Research Prod., 346 F. Supp. 2d 804, 811-817 (D. Md. 2004).

It appears that such manufactured contacts can be sufficient only when accompanied by evidence of other contacts with the forum state. See, e.g., Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 166-167 (2d Cir. 2010)[1]; Cartier v. Seah LLC, 598 F. Supp. 2d 422, 425 (S.D.N.Y. 2009).

The law appears unsettled on this issue but if you find yourself being sued in a state in which you have minimal or no contacts, the attorneys at the law firm of Santucci Priore, P.L. can assist you in protecting your rights. We are a full service, Fort Lauderdale-based firm focusing on intellectual property, business and entertainment law and litigation.

[1] The Second Circuit refused to expressly address the issues of: 1) “whether the‘single act’ of shipping the counterfeit bag to an agent of the plaintiff, by itself, constitutes an act of trademark infringement,” or 2) whether personal jurisdiction is proper over a non-resident Defendant based on one “manufactured” contact with the forum initiated by the Plaintiff or its representatives. Chloe, 616 F.3d at 165 n.3.

Daniel Devine

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