Virgin Health Corporation v. Virgin Enterprises , 393 F. App'x 623 ( 2010 )


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  •                                                         [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FILED
    FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
    ________________________ ELEVENTH CIRCUIT
    AUGUST 19, 2010
    No. 09-11438                   JOHN LEY
    Non-Argument Calendar                CLERK
    ________________________
    D. C. Docket No. 08-22557-CV-UU
    VIRGIN HEALTH CORPORATION,
    a Florida corporation,
    Plaintiff-Appellant,
    versus
    VIRGIN ENTERPRISES LIMITED,
    an English corporation,
    Defendant-Appellee.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    _________________________
    (August 19, 2010)
    Before MARCUS, WILSON and ANDERSON, Circuit Judges.
    PER CURIAM:
    This case returns to us after the district court’s review of its docket
    confirmed that the appellant Virgin Health Corporation (VHC) timely filed its
    notice of appeal.1 With the issue of our jurisdiction thus resolved, we now
    entertain VHC’s request to reverse the district court’s dismissal of its trademark
    and cyber-squatting declaratory judgment action against Virgin Enterprises
    Limited (VEL). The district court found that Florida’s long-arm statute precluded
    the exercise of personal jurisdiction over VEL. After careful review, we affirm the
    judgment of the district court.
    I. Background
    This dispute between VHC and VEL is one of several that have played out in
    different forums concerning the parties’ respective rights to use the term “Virgin
    Health” and its cognates in various marketing contexts. VHC, a Florida
    corporation, has provided home health care services in Miami-Dade and Palm
    Beach counties since at least November 2005. VEL, an English corporation, is part
    of the Virgin conglomerate based in London. VEL’s sole function is licensing the
    use of the Virgin name to hundreds of subsidiaries that reveal the breadth of the
    conglomerate’s interests: entertainment, aviation, tourism, cellular phones,
    1
    In an order dated November 13, 2009, this panel remanded the case to the district court
    to determine whether its docket showed that VHC filed its notice of appeal within the thirty-day
    jurisdictional window of Federal Rule of Appellate Procedure 4(a)(1)(A). On December 28,
    2009, the district court entered its order correcting the docket. D.E. 43.
    2
    and—most relevant to this case—health-related enterprises.
    In February 2005, VEL filed applications with the U.S. Patent & Trademark
    Office to register its interest in the service mark “VIRGIN” for a number of
    business enterprises, among them health insurance and medical evaluation
    services. In late 2007, VEL sent VHC a letter asking it to cease using the name
    Virgin Health Corp., and to cease using the Internet domain name virginhealth.net,
    in connection with health care services. VEL noted that its licensee Virgin
    HealthMiles, Inc. was operating its own website, virginlifecare.com. VEL asked
    VHC to transfer the domain name virginhealth.net to VEL.
    The conflict moved into the federal courts. In January 2008, VEL sued
    VHC and other defendants in New York, alleging trademark infringement and
    cyber-squatting. VEL subsequently dismissed those claims against VHC. In
    September 2008, VHC filed the instant declaratory judgment action against VEL in
    the Southern District of Florida. The action sought relief in the form of three
    declarations: (1) VHC had not infringed VEL’s trademarks in violation of Florida
    common law and the Lanham Act; (2) VHC had not cyber-squatted in violation of
    the Lanham Act; and (3) VHC had not violated the Florida Deceptive and Unfair
    Trade Practices Act. VHC also filed oppositions to VEL’s pending applications
    with the federal trademark office, but it later moved for a stay in the trademark
    3
    proceedings in order to prosecute its declaratory judgment claims in district court.
    VHC served VEL in London. VEL moved to dismiss for lack of personal
    jurisdiction. On February 11, 2009, the district court entered an order dismissing
    VHC’s case for lack of personal jurisdiction over VEL.
    II. Standard of Review
    We review de novo a district court’s dismissal for lack of personal
    jurisdiction. United Techs. Corp. v. Mazer, 
    556 F.3d 1260
    , 1274 (11th Cir. 2009)
    (citation omitted). The plaintiff bears the initial burden of alleging sufficient
    jurisdictional facts to make a prima facie case; if the defendant rebuts with contrary
    affidavit evidence, the plaintiff reassumes the burden. 
    Id.
     (citation omitted). The
    plaintiff establishes a prima facie case if it “presents enough evidence to withstand
    a motion for directed verdict.” Consol. Dev. Corp. v. Sherritt, Inc., 
    216 F.3d 1286
    ,
    1291 (11th Cir. 2000) (citation omitted). A federal court typically applies a two-
    step test when analyzing personal jurisdiction over a nonresident defendant:
    whether the exercise of jurisdiction (1) comports with the long-arm statute of the
    forum state; and (2) does not violate the Due Process Clause of the Fourteenth
    Amendment. Fed. R. Civ. P. 4(k)(1)(A); Mazer, 
    556 F.3d at 1274
     (citation
    omitted). The reach of the Florida long-arm statute is a question of Florida law;
    therefore, we must construe it as we believe the Florida Supreme Court would. Id.
    4
    (citation omitted). In the absence of authority from the Florida Supreme Court, we
    look to the Florida district courts of appeal. Id. at 1274–75 (citation omitted).
    III. Discussion
    On appeal, VHC alleges that VEL is subject both to specific and general
    jurisdiction in Florida. VHC further asserts that VEL’s licensees are its agents
    capable of subjecting VEL to the district court’s jurisdiction. Upon reviewing the
    first prong of the personal jurisdiction inquiry, we affirm the district court’s
    finding that VHC failed to meet the requirements of Florida’s long-arm statute.
    This conclusion makes it unnecessary for us to consider the second prong,
    constitutionality.
    VHC’s argument for specific jurisdiction under § 48.193(1), Fla. Stat.,
    which requires that VHC’s claims “aris[e] from” VEL’s acts, rests on the cease-
    and-desist letter that VEL mailed from New York to VHC in Florida. VHC claims
    this letter qualifies VEL as “carrying on a business” in Florida under §
    48.193(1)(a), Fla. Stat. We disagree. While sending a letter into Florida could
    invite specific jurisdiction under § 48.193(1)(b) if the letter itself is tortious, Wendt
    v. Horowitz, 
    822 So. 2d 1252
    , 1260 (Fla. 2002), the act of sending the letter, by
    itself, does not mean that VEL is doing business in Florida for purposes of §
    48.193(1)(a). Nida Corp. v. Nida, 
    118 F. Supp. 2d 1223
    , 1228 (M.D. Fla. 2000);
    5
    Insight Instruments, Inc. v. A.V.I.-Advanced Visual Instruments, Inc., 
    44 F. Supp. 2d 1269
    , 1272 (M.D. Fla. 1999). While a demand letter frequently precedes a
    lawsuit, the letter here cannot be said to have given rise to VHC’s claims.
    As for general jurisdiction under § 48.193(2), Fla. Stat., VHC has not refuted
    VEL’s proffer that VEL has no office, employees, real property, bank account,
    mailing address, or telephone number in Florida; and that it has not engaged in
    business or made any contracts in Florida. Nor does general jurisdiction apply to
    VEL because it filed an infringement suit in the Southern District of Florida in
    2006. See Gibbons v. Brown, 
    716 So. 2d 868
    , 870–71 (Fla. 1st DCA 1998) (per
    curiam).
    VHC also contends that VEL’s licensees, including Virgin HealthMiles,
    Virgin Atlantic Airways, Virgin Entertainment, Virgin Mobile, and Virgin
    Vacations, are VEL’s agents capable of subjecting VEL to personal jurisdiction in
    Florida. VHC relies on the reference to an “agent” in § 48.193(1), Fla. Stat. To
    support a finding of agency, Florida courts require (1) acknowledgment by the
    principal that the agent will act for him; (2) acceptance by the agent; and (3)
    control by the principal over the actions of the agent. Goldschmidt v. Holman, 
    571 So. 2d 422
    , 424 n.5 (Fla. 1990) (citation omitted).
    VHC fails to satisfy this standard. Although VHC notes that VEL (1)
    6
    negotiates licenses with licensees; (2) monitors the use of the licenses; (3) applies
    for and defends service marks; and (4) polices against infringement of marks, none
    of this activity, nor the activity of the licensees as evidenced through screenshots
    of their online activity, demonstrates that the licensees are the agents of VEL.
    VHC’s conclusory assertion that VEL has contractual veto power over the quality
    of its licensees’ goods and services likewise fails to satisfy the test that would
    impute the licensees’ activities to VEL for purposes of finding personal
    jurisdiction. Therefore, VHC has failed to show that the Florida long-arm statute
    permits the district court’s assertion of personal jurisdiction over VEL.2 We
    therefore do not reach the second question of the personal jurisdiction analysis:
    whether such an exercise of jurisdiction would be constitutional.
    IV. Conclusion
    2
    VHC pleaded, and the district court analyzed, the question of personal jurisdiction here
    as implicating Florida’s long-arm statute. But VHC might have argued personal jurisdiction
    under the so-called “federal long-arm” statute, Federal Rule of Civil Procedure 4(k)(2). Oldfield
    v. Pueblo De Bahia Lora, S.A., 
    558 F.3d 1210
    , 1218 & n.23 (11th Cir. 2009) (citation omitted).
    The federal long-arm statute can reach a foreign defendant that is not subject to the jurisdiction
    of the courts of general jurisdiction of any state, as long as the plaintiff’s claim arises under
    federal law and the exercise of personal jurisdiction would not offend Fifth Amendment due
    process. 
    Id.
     at 1218–19 (citing Consol. Dev. Corp. v. Sherritt, Inc., 
    216 F.3d 1286
    , 1291 (11th
    Cir. 2000)). VEL could have defeated this theory by identifying a U.S. state in which it was
    subject to personal jurisdiction in a state court, 
    id.
     at 1218 n.22, or by showing that its
    aggregated contacts with the United States as a whole were insufficient, United States v. Swiss
    Am. Bank, Ltd., 
    191 F.3d 30
    , 41 (1st Cir. 1999). Since the plaintiff bears the burden of pleading
    jurisdiction, we will not substitute our own theory for its. Moreover, our general rule is not to
    review a theory that was not raised in the district court. Wright v. Hanna Steel Corp., 
    270 F.3d 1336
    , 1342 (11th Cir. 2001).
    7
    VHC has failed to show that Florida’s long-arm statute permits personal
    jurisdiction over VEL; therefore, we affirm the judgment of the district court.3
    AFFIRMED.
    3
    VHC’s request for oral argument is denied.
    8