Richard Ackourey, Jr. v. Sonellas Custom Tailors ( 2014 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-3818
___________
RICHARD C. ACKOUREY, JR.,
d/b/a GRAPHIC STYLES/STYLES INTERNATIONAL LLC,
Appellant
v.
SONELLAS CUSTOM TAILORS, a/k/a HONG KONG TAILORS (USA);
DILEEP KUMAR DASWANI, a/k/a KEN DASWANI
_______________________
On Appeal from the District Court
for the Eastern District of Pennsylvania
D.C. Civil No. 2-12-cv-06729
(Honorable Jan E. DuBois)
______________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 05, 2014
Before: HARDIMAN, SCIRICA, and ROTH, Circuit Judges
(Filed: July 29, 2014)
_________________
OPINION OF THE COURT
_________________
SCIRICA, Circuit Judge.
1
Richard Ackourey, Jr. appeals an order of the District Court dismissing his
copyright infringement suit against Sonella’s Custom Tailors and Dileep Kumar Daswani
for lack of personal jurisdiction under Fed. R. Civ. P. 12(b)(2). Because there was an
insufficient basis for personal jurisdiction, we will affirm.1
I.
Since we write solely for the benefit of the parties, we recount only those facts
relevant to the issues before us. Plaintiff Richard Ackourey, Jr. is a Pennsylvania resident
who owns copyrights in two fashion stylebooks published in 2005 and 2006. The
stylebooks contain images of various fashion clothing designs. The stylebook images are
subject to re-use and redistribution in accordance with various licensing arrangements.
Defendant Dileep Kumar Daswani is an Oregon resident and the owner of
Sonella’s Custom Tailors (“SCT”), an apparel business operated out of Daswani’s home
in Beaverton, Oregon. All of SCT’s business is conducted in person at consultation
appointments. SCT’s website allows prospective customers to email requests for
consultation appointments and advertises a travel schedule that lists available
appointments in Oregon and various locations throughout the United States. The website
does not allow customers to place orders, make payments, or engage in any business
transaction. SCT appointments consist of showing fabric samples to customers, providing
styling advice, and measuring customers for custom sizing. SCT sends any orders made
1
The District Court had subject matter jurisdiction under 28 U.S.C. § 1331. We have
appellate jurisdiction under 28 U.S.C. § 1291.
2
at these appointments to an independent supplier in Hong Kong. The Hong Kong supplier
manufactures the custom clothing and ships the order directly to the customer.
In March 2005, Daswani ordered a copy of Ackourey’s 2005 stylebook. The book
was shipped from Pennsylvania to Daswani’s Oregon address. Thereafter, SCT’s website
allegedly displayed Ackourey’s copyrighted images without authorization. On December
3, 2012, Ackourey filed a copyright infringement suit against SCT and Daswani in the
United States District Court for the Eastern District of Pennsylvania.
On April 29, 2013, Defendants filed a motion to dismiss for lack of personal
jurisdiction under Rule 12(b)(2). In response, Ackourey argued Defendants established
minimum contacts with the Commonwealth sufficient to support specific personal
jurisdiction by directly targeting potential customers in Pennsylvania and by purchasing
the 2005 stylebook. Ackourey did not request jurisdictional discovery, but submitted
exhibits of screenshots of SCT’s website listing available appointments in Pennsylvania.
Daswani averred that he has no customer base in Pennsylvania and has never travelled to
Pennsylvania for business purposes. Daswani conceded he may have on rare occasion
fulfilled an order for a Pennsylvania customer referred to him by a cooperating tailor.
The District Court issued an opinion and order on August 21, 2013, granting
Defendants’ motion to dismiss. The court found Defendants’ “passive website and related
non-Internet contacts are insufficient to support the exercise of specific jurisdiction over
the defendants.” App. 11. Ackourey filed a timely notice of appeal.
II.
We review a district court’s decision concerning personal jurisdiction de novo, but
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review its factual findings under a clearly erroneous standard. Control Screening LLC v.
Technological Application & Prod. Co., 687 F.3d 163, 167 (3d Cir. 2012). Following a
defendant’s Rule 12(b)(2) motion, plaintiff bears the burden of proving that jurisdiction
exists by a preponderance of the evidence. Imo Indus., Inc. v. Kiekert AG, 155 F.3d 254,
257 (3d Cir. 1998).
III.
Ackourey argues on appeal that the District Court erred in granting Defendants’
Rule 12(b)(2) motion because Defendants established minimum contacts with
Pennsylvania sufficient to support the exercise of specific personal jurisdiction.2
Fed. R. Civ. P. 4(e) authorizes federal courts to exercise “personal jurisdiction
over non-resident defendants to the extent permissible under the law of the state where
the district court sits.” Pennzoil Prods. Co. v. Colelli & Assocs., Inc., 149 F.3d 197, 200
(3d Cir. 1998). Pennsylvania’s long-arm statute permits courts to exercise personal
jurisdiction over nonresident defendants “to the fullest extent allowed under the
Constitution of the United States” and “based on the most minimum contact with this
Commonwealth allowed under the Constitution.” 42 Pa. Cons. Stat. Ann. § 5322(b).
Constitutionally, federal courts may exercise specific personal jurisdiction over
2
Ackourey also raises—for the first time on appeal—two additional arguments. First, he
contends Defendants’ targeted advertising, use of Pennsylvania locations, and efforts to
solicit Pennsylvania businesses are sufficient to support the exercise of general personal
jurisdiction. Because Ackourey failed to raise this argument before the District Court, we
decline to address it here. See Srein v. Frankford Trust Co., 323 F.3d 214, 224 n.8 (3d
Cir. 2003) (“We have consistently held that we will not consider issues that are raised for
the first time on appeal absent compelling reasons.” (internal quotation marks and
citation omitted)). Second, Ackourey argues for jurisdiction based on the “effects test” of
Calder v. Jones, 465 U.S. 783 (1984). Again, because Ackourey failed to raise this
argument before the District Court, we decline to address it here.
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nonresident defendants only when the defendants have purposefully directed activities at
and established “minimum contacts with [the forum] such that the maintenance of the suit
does not offend traditional notions of fair play and substantial justice.” Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945) (internal quotation marks and citation omitted).
Moreover, the litigation must ‘“arise out of or relate to’ those activities.” Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (quoting Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984)). A defendant’s contacts with the forum
state must be “such that he should reasonably anticipate being haled into court there.”
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). Random,
fortuitous, or attenuated contacts are not sufficient to support jurisdiction. Id. at 295; see
Burger King, 471 U.S. at 475.
Ascertaining specific personal jurisdiction in claims arising from Internet
commerce requires courts to determine whether a defendant established minimum
contacts through cyberspace. Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119,
1123-24 (W.D. Pa. 1997). “[Zippo] has become a seminal authority regarding personal
jurisdiction based upon the operation of an Internet web site.” Toys “R” Us, Inc. v. Step
Two, S.A., 318 F.3d 446, 452 (3d Cir. 2003). When analyzing Internet commerce cases,
“the likelihood that personal jurisdiction can be constitutionally exercised is directly
proportionate to the nature and quality of commercial activity that an entity conducts over
the Internet.” Zippo, 952 F. Supp. at 1124. This sliding scale ranges from situations
where a defendant uses an interactive commercial website to actively transact business
with residents of the forum state (personal jurisdiction exists) to situations where a
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passive website merely provides information that is accessible to users in the forum state
(personal jurisdiction does not exist). Id. To determine whether personal jurisdiction
exists for situations between these extremes, we examine “the level of interactivity and
commercial nature of the exchange of information that occurs on the Web site.” Id; see
Toys “R” Us, 318 F.3d at 452. In Zippo, the court found personal jurisdiction existed
where the defendant “[did] more than advertise on the Internet in Pennsylvania” by using
its website to “contract[] with approximately 3,000 individuals and seven Internet access
providers in Pennsylvania.” Zippo, 952 F. Supp. at 1126.
Ackourey alleges Defendants wrongfully displayed his copyrighted images on
SCT’s website and contends Defendants established minimum contacts with the
Commonwealth by (1) using the website to target potential customers in Pennsylvania,
(2) selling custom-tailored apparel through appointments in Pennsylvania, and
(3) reaching into Pennsylvania to purchase a copy of the 2005 stylebook. Following
Defendant’s Rule 12(b)(2) motion, Ackourey bore the burden of proving that jurisdiction
exists by a preponderance of the evidence. See Imo Indus., 155 F.3d at 257. Since specific
jurisdiction requires a plaintiff’s claims to arise out of or relate to a defendant’s contacts
with the forum, Burger King, 471 U.S. at 472, we must determine whether Ackourey has
demonstrated that Defendants established constitutionally sufficient minimum contacts
with Pennsylvania via their website. We find he has not.
Here, the “level of interactivity and commercial nature” of SCT’s website is
minimal, Zippo, 952 F. Supp. at 1124, and does little “more than advertise on the Internet
in Pennsylvania,” id. at 1126. The website lists a travel schedule and only allows
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potential customers to email requests for appointments. It does not permit customers to
place orders, make payments, or engage in any business transactions. This low degree of
commercial activity renders Defendants’ website essentially passive. See id. at 1124 (“A
passive Web site that does little more than make information available to those who are
interested in it is not grounds for the exercise [of] personal jurisdiction.”).
Furthermore, even if scheduling appointments alone was sufficiently interactive
and commercial under Zippo, Ackourey has failed to provide any evidence that
Pennsylvania residents used Defendants’ website to schedule appointments. Daswani
averred he has no customer base in Pennsylvania, has never travelled to Pennsylvania for
any purpose related to his tailoring business, and only on rare occasion fulfilled an order
for a Pennsylvania customer referred to him by a cooperating tailor. Ackourey provides
no evidence refuting these claims and did not request jurisdictional discovery. Although
Defendants’ website may have informed potential customers in Pennsylvania of the
possibility of appointments in the Commonwealth, there is no evidence Defendants
received any web-based requests for appointments in Pennsylvania or transacted any
business whatsoever with Pennsylvania residents via its website.
Finally, we agree with the District Court that Daswani’s purchase of a copy of
Ackourey’s stylebook—which was shipped from Pennsylvania—is an attenuated contact
with the Commonwealth insufficient to support the exercise of personal jurisdiction.
Simply purchasing a book that happens to be shipped from Pennsylvania would not likely
lead one to “reasonably anticipate being haled into court there.” World-Wide Volkswagen,
444 U.S. at 297.
7
Accordingly, we agree with the District Court that Ackourey has failed to meet his
burden of proving that personal jurisdiction exists.
IV.
For the foregoing reasons, we will affirm the decision of the District Court
granting Defendants’ Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction.
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