Herbal Brands, Inc. v. Photoplaza, Inc. ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HERBAL BRANDS, INC., No. 21-17001
Plaintiff-Appellant, D.C. No. 2:21-
cv-00577-SMB
v.
PHOTOPLAZA, INC.; GOLDSHOP OPINION
300, INC.; GOLDSHOP, INC.;
INSTOCK GOODIES, INC.; TZVI
HESCHEL; SHLOMA BICHLER;
LALI DATS,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Susan M. Brnovich, District Judge, Presiding
Argued and Submitted February 8, 2023
Phoenix, Arizona
Filed July 5, 2023
Before: Susan P. Graber, Richard R. Clifton, and Morgan
Christen, Circuit Judges.
Opinion by Judge Graber
2 HERBAL BRANDS, INC. V. PHOTOPLAZA, INC.
SUMMARY *
Personal Jurisdiction
Reversing the district court’s dismissal for lack of
personal jurisdiction over defendants in an action under the
Lanham Act, the panel held that, if a defendant, in its regular
course of business, sells a physical product via an interactive
website and causes that product to be delivered to the forum,
then the defendant has purposefully directed its conduct at
the forum such that the exercise of personal jurisdiction may
be appropriate.
Herbal Brands, Inc., which has its principal place of
business in Arizona, brought suit in Arizona against New
York residents that sell products via Amazon
storefronts. Herbal Brands alleged that defendants’
unauthorized sale of Herbal Brands products on Amazon, to
Arizona residents and others, violated the Lanham Act and
state law.
The panel applied the Arizona long-arm statute, which
provides for personal jurisdiction co-extensive with the
limits of federal due process. Due process requires that a
nonresident defendant must have “certain minimum
contacts” with the forum such that the exercise of personal
jurisdiction does not offend traditional notions of fair play
and substantial justice.
Addressing the first prong of the specific jurisdiction
inquiry, the panel applied a purposeful direction analysis,
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
HERBAL BRANDS, INC. V. PHOTOPLAZA, INC. 3
rather than a purposeful availment analysis, because Herbal
Brands brought tortious claims for trademark infringement,
false advertising, and tortious interference with business
relationships. The panel held that Herbal Brands met its
initial burden of showing that defendants purposefully
directed their activities at the forum because, under the
Calder effects test, defendants’ sale of products to Arizona
residents was an intentional act, and Herbal Brands’ cease-
and-desist letters informed defendants that their actions were
causing harm in Arizona. In addition, defendants “expressly
aimed” their conduct at the forum because an interactive
website plus “something more” constitutes “express
aiming.” Defendants’ Amazon storefronts were interactive
websites, and defendants’ sales of products to Arizona
residents were the requisite “something more” because the
sales occurred as part of defendants’ regular course of
business, and defendants exercised some level of control
over the ultimate distribution of their products beyond
simply placing their products into the stream of
commerce. Recognizing a range of approaches adopted by
other circuits in response to similar questions, the panel
stated that it did not attempt to reconcile the split among the
circuits.
Addressing the second prong of the specific jurisdiction
inquiry, the panel held that Herbal Brands’ harm arose out
of defendants’ contacts with Arizona. Addressing the third
prong, the panel held that defendants failed to show that the
exercise of jurisdiction would not be reasonable. Thus, in
sum, defendants had sufficient minimum contacts with
Arizona, Herbal Brands’ harm arose out of those contacts,
and the exercise of personal jurisdiction would be reasonable
in the circumstances.
4 HERBAL BRANDS, INC. V. PHOTOPLAZA, INC.
COUNSEL
Daniel C.F. Wucherer (argued), Vorys Sater Seymour and
Pease LLP, Cincinnati, Ohio; William D. Kloss and Martha
B. Motley, Vorys Sater Seymour and Pease LLP, Columbus,
Ohio; Andrew M. Jacobs, Rachael Marie Peters Pugel, and
Carlie Tovrea, Snell & Wilmer LLP, Phoenix, Arizona; for
Plaintiff-Appellant.
Serge Krimnus (argued) and Andrew D. Bochner, Bochner
IP PLLC, New York, New York, for Defendants-Appellees.
OPINION
GRABER, Circuit Judge:
Internet commerce is ubiquitous in the modern economy,
allowing sellers to reach potential consumers around the
globe. Yet we have not addressed directly the question
presented by this appeal: Does the sale of a product via an
interactive website provide sufficient “minimum contacts”
to support personal jurisdiction over a nonresident defendant
in the state where the defendant causes the product to be
delivered, when the plaintiff in that state brings a claim for
an intentional tort related to the sale of the product?
Plaintiff Herbal Brands, Inc., has its principal place of
business in Arizona. It manufactures and sells health,
wellness, fitness, and nutrition products under various
trademarks and brands. Defendants are New York residents
that sell products via Amazon storefronts. Plaintiff filed this
action in Arizona, alleging that Defendants’ unauthorized
sale of Herbal Brands products on Amazon violated the
HERBAL BRANDS, INC. V. PHOTOPLAZA, INC. 5
Lanham Act and state law. The district court denied
Plaintiff’s request for jurisdictional discovery and dismissed
the complaint on the ground that the court lacks personal
jurisdiction over Defendants. Reviewing de novo the
dismissal for lack of personal jurisdiction, Picot v. Weston,
780 F.3d 1206, 1211 (9th Cir. 2015), we reverse. We hold
that, if a defendant, in its regular course of business, sells a
physical product via an interactive website and causes that
product to be delivered to the forum, the defendant has
purposefully directed its conduct at the forum such that the
exercise of personal jurisdiction may be appropriate.
FACTUAL AND PROCEDURAL HISTORY
Plaintiff Herbal Brands is a Delaware corporation with
its principal place of business in Arizona. Plaintiff sells its
health, wellness, fitness, and nutrition products directly to
consumers or through third parties that enter into agreements
to become “Authorized Sellers.” Plaintiff alleges that
unauthorized sales of its products are not subject to quality
control and thus may damage its reputation with consumers.
Defendants Photoplaza, Inc.; Goldshop 300, Inc.;
Goldshop, Inc.; InStock Goodies, Inc.; Tzvi Heschel;
Shloma Bichler; and Lali Dats are all New York residents.
Plaintiff discovered that Defendants—who are not
Authorized Sellers—were selling Herbal Brands products
through two Amazon storefronts. 1 Plaintiff estimates that,
as of April 5, 2021—the date when it filed its complaint—
1
For the purposes of this opinion, we use the term “Amazon storefront”
to describe an e-commerce store that is hosted on the Amazon platform
and operated by a business to advertise and sell its products. See
Ecommerce storefront: Build an online store on Amazon.com,
Amazon.com, https://sell.amazon.com/learn/ecommerce-
storefront#what-is-an-ecommerce-store.
6 HERBAL BRANDS, INC. V. PHOTOPLAZA, INC.
Defendants had sold more than 23,000 Herbal Brands
products. Plaintiff alleges that Defendants sold products to
Arizona residents “through the regular course of business,”
but, without access to Defendants’ sales data, Plaintiff is
unable to allege the exact number of sales made to Arizona
customers.
Plaintiff sent three cease-and-desist letters to
Defendants, asserting that Defendants were infringing
Plaintiff’s trademarks and tortiously interfering with
Plaintiff’s agreements with its Authorized Sellers. The
letters informed Defendants that Plaintiff was based in
Arizona and alleged that those sales harmed Plaintiff in
Arizona. Despite Plaintiff’s letters, Defendants’ Amazon
storefronts remained operational.
Plaintiff filed this action in federal district court in
Arizona, bringing claims for (1) trademark infringement and
unfair competition under the Lanham Act and under Arizona
law; (2) false advertising under the Lanham Act; and (3)
tortious interference with contracts and business
relationships under Arizona law.
Defendants filed a motion to dismiss for lack of personal
jurisdiction. Defendants did not submit an affidavit or any
other evidence to contradict the allegations in the complaint.
Notably, they did not contest Plaintiff’s allegations that they
sold Herbal Brands products to customers in Arizona. In
opposition to the motion, Plaintiff submitted an additional
declaration attesting that, as of July 2021, Defendants had
sold more than 25,700 allegedly infringing products and that
Defendants had taken no affirmative steps to prevent
customers in Arizona from purchasing those products.
The district court granted the motion to dismiss for lack
of personal jurisdiction, holding that Plaintiff failed to meet
HERBAL BRANDS, INC. V. PHOTOPLAZA, INC. 7
its burden of demonstrating that Defendants “expressly
aimed” their conduct at Arizona. The court also denied
Plaintiff’s request for jurisdictional discovery as
unnecessary, predicting that discovery would reveal only a
“sporadic smattering of sales to consumers in Arizona.”
Plaintiff timely appealed.
DISCUSSION
Plaintiff alleges that Defendants, in their regular course
of business, (1) operated a universally accessible interactive
website; (2) made an unknown number of sales to Arizona
residents; and (3) received cease-and-desist letters from
Plaintiff, an Arizona resident, after which Defendants made
no effort to stop selling to Arizona residents. We hold that
those allegations are sufficient to support the exercise of
specific personal jurisdiction in this instance.
“Where, as here, there is no applicable federal statute
governing personal jurisdiction, the district court applies the
law of the state in which the district court sits.”
Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797,
800 (9th Cir. 2004); see Fed. R. Civ. P. 4(k)(1)(A). “The
Arizona long-arm statute provides for personal jurisdiction
co-extensive with the limits of federal due process.” Doe v.
Am. Nat’l Red Cross, 112 F.3d 1048, 1050 (9th Cir. 1997).
Thus, “the jurisdictional analyses under state law and federal
due process are the same.” Schwarzenegger, 374 F.3d at800–01. Due process requires that a nonresident defendant
must have “certain minimum contacts” with the relevant
forum such that the exercise of personal jurisdiction “does
not offend ‘traditional notions of fair play and substantial
justice.’” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316
(1945) (citation omitted).
8 HERBAL BRANDS, INC. V. PHOTOPLAZA, INC.
“[P]laintiff bears the burden of establishing that
jurisdiction is proper.” Mavrix Photo, Inc. v. Brand Techs.,
Inc., 647 F.3d 1218, 1223 (9th Cir. 2011). When a
defendant’s motion to dismiss on jurisdictional grounds rests
only on written materials rather than on testimony at an
evidentiary hearing, “the plaintiff need only make a prima
facie showing of jurisdictional facts.” Schwarzenegger, 374
F.3d at 800 (citation and internal quotation marks omitted).
And “uncontroverted allegations in the complaint must be
taken as true.” Id.“The inquiry whether a forum State may assert specific
jurisdiction over a nonresident defendant focuses on the
relationship among the defendant, the forum, and the
litigation.” Walden v. Fiore, 571 U.S. 277, 283–84 (2014)
(citations and internal quotation marks omitted). We have
established a three-part test for specific personal jurisdiction:
(1) The non-resident defendant must
purposefully direct his activities or
consummate some transaction with the
forum or resident thereof; or perform
some act by which he purposefully avails
himself of the privilege of conducting
activities in the forum, thereby invoking
the benefits and protections of its laws;
(2) the claim must be one which arises out of
or relates to the defendant’s forum-
related activities; and
HERBAL BRANDS, INC. V. PHOTOPLAZA, INC. 9
(3) the exercise of jurisdiction must comport
with fair play and substantial justice, i.e.
it must be reasonable.
Schwarzenegger, 374 F.3d at 802 (citation omitted). “The
plaintiff has the burden of proving the first two prongs.”
Picot, 780 F.3d at 1211. “If the plaintiff meets that burden,
‘the burden then shifts to the defendant to “present a
compelling case” that the exercise of jurisdiction would not
be reasonable.’” Axiom Foods, Inc. v. Acerchem Int’l, Inc.,
874 F.3d 1064, 1068–69 (9th Cir. 2017) (quoting
Schwarzenegger, 374 F.3d at 802).
A. Defendants Purposefully Directed Their Activities at
the Forum.
The first prong of the specific-jurisdiction inquiry
encompasses two separate concepts: “purposeful availment”
and “purposeful direction.” Glob. Commodities Trading
Grp., Inc. v. Beneficio de Arroz Choloma, S.A., 972 F.3d
1101, 1107 (9th Cir. 2020). Although they are distinct, “[a]t
bottom, both purposeful availment and purposeful direction
ask whether defendants have voluntarily derived some
benefit from their interstate activities such that they ‘will not
be haled into a jurisdiction solely as a result of “random,”
“fortuitous,” or “attenuated” contacts.’” Id. (quoting Burger
King v. Rudzewicz, 471 U.S. 462, 475 (1985)).
We look to the type of claim at issue to determine the
applicable analytical approach. We generally use the
purposeful availment analysis in suits sounding in contract,
Schwarzenegger, 374 F.3d at 802, and for unintentional tort
claims, see, e.g., Yamashita v. LG Chem, Ltd., 62 F.4th 496,
503–04 (9th Cir. 2023) (applying the purposeful availment
test where the plaintiff brought product liability claims). We
10 HERBAL BRANDS, INC. V. PHOTOPLAZA, INC.
have often said, without qualification, that the purposeful
direction test applies when “a case sounds in tort,” see, e.g.,
Axiom Foods, 874 F.3d at 1069, but that test “applies only
to intentional torts, not to . . . negligence claims.” Holland
Am. Line Inc. v. Wärtsilä N. Am., Inc., 485 F.3d 450, 460
(9th Cir. 2007) (emphasis added). Here, Plaintiff brings
claims for trademark infringement, false advertising, and
tortious interference with business relationships. Because
each of those claims requires an intentional tortious or “tort-
like” act, we employ the purposeful direction test. See Ayla,
LLC v. Alya Skin Pty. Ltd., 11 F.4th 972, 979 (9th Cir. 2021)
(applying the purposeful direction analysis because
“[t]rademark infringement is treated as tort-like for personal
jurisdiction purposes”).
To determine whether a defendant “purposefully
directed” its activities toward the forum, we apply, in turn,
the “effects” test derived from Calder v. Jones, 465 U.S. 783(1984). That test “focuses on the forum in which the
defendant’s actions were felt, whether or not the actions
themselves occurred within the forum.” Mavrix, 647 F.3d at
1228 (quoting Yahoo! Inc. v. La Ligue Contre Le Racisme
Et L’Antisemitisme, 433 F.3d 1199, 1206 (9th Cir. 2006) (en
banc) (per curiam)) (internal quotation mark omitted). The
Calder effects test asks “whether the defendant: ‘(1)
committed an intentional act, (2) expressly aimed at the
forum state, (3) causing harm that the defendant knows is
likely to be suffered in the forum state.’” Will Co. v. Lee,
47 F.4th 917, 922 (9th Cir. 2022) (quoting Schwarzenegger,
374 F.3d at 803).
Plaintiff easily satisfies the first and third elements of the
Calder effects test. Defendants’ sale of products to Arizona
residents is an intentional act, and the cease-and-desist
letters informed Defendants that their actions were causing
HERBAL BRANDS, INC. V. PHOTOPLAZA, INC. 11
harm in Arizona. 2 See Dole Food Co. v. Watts, 303 F.3d
1104, 1113 (9th Cir. 2002) (recognizing that a corporation
can suffer economic harm in many fora, including where the
corporation has its principal place of business). The closer
question is whether Defendants “expressly aimed” their
conduct at the forum.
1. An Interactive Website Plus “Something More”
Constitutes “Express Aiming.”
We begin by considering Defendants’ internet-based
activity. More than two decades ago, we recognized a
distinction between “passive” websites that merely make
information available to visitors and “interactive” websites,
where “users can exchange information with the host
computer when the site is interactive.” Cybersell, Inc. v.
Cybersell, Inc., 130 F.3d 414, 418 (9th Cir. 1997). It is well
settled that “[m]ere passive operation of a website is
insufficient to demonstrate express aiming.” Will Co., 47
F.4th at 922; see Mavrix, 647 F.3d at 1231 (“Not all material
placed on the Internet is, solely by virtue of its universal
accessibility, expressly aimed at every state in which it is
accessed.”).
Similarly, operation of an interactive website does not,
by itself, establish express aiming. Otherwise, every time a
2
The cease-and-desist letters are relevant to our analysis due to the
specific facts and claims at issue in this case. Because Plaintiff’s claims
are based on trademark infringement, without the letters Defendants
might not have known that Plaintiff would be harmed in Arizona. By
contrast, if a plaintiff were to allege that he was poisoned by a product,
then the shipment of that product to the plaintiff’s forum would suffice
to show that the defendant knew that the harm “is likely to be suffered in
the forum state.” Will Co., 47 F.4th at 922 (citation and internal
quotation mark omitted).
12 HERBAL BRANDS, INC. V. PHOTOPLAZA, INC.
seller offered a product for sale through an interactive
website, the seller would be subjecting itself to specific
jurisdiction in every forum in which the website was visible,
whether or not the seller actually consummated a sale. That
result would be too broad to comport with due process. See
CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d 1066,
1075–76 (9th Cir. 2011) (“If the maintenance of an
interactive website were sufficient to support general
jurisdiction in every forum in which users interacted with the
website, the eventual demise of all restrictions on the
personal jurisdiction of state courts would be the inevitable
result.” (citation and internal quotation marks omitted)).
But operating a website “in conjunction with ‘something
more’—conduct directly targeting the forum—is sufficient”
to satisfy the express aiming prong. Mavrix, 647 F.3d at
1229 (quoting Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d
1007, 1020 (9th Cir. 2002)). The interactivity of the website
is one of several factors that can be relevant to the question
whether a defendant has done “something more.” 3 Id. In
some cases, the operators of a website “can be said to have
‘expressly aimed’ at a forum where a website ‘with national
viewership and scope appeals to, and profits from, an
audience in a particular state.’” AMA Multimedia, LLC v.
Wanat, 970 F.3d 1201, 1210 (9th Cir. 2020) (quoting
Mavrix, 647 F.3d at 1231). When the website itself is the
only jurisdictional contact, our analysis turns on whether the
site had a forum-specific focus or the defendant exhibited an
intent to cultivate an audience in the forum. See, e.g.,
3
We have acknowledged that there is a “sliding scale” of how interactive
a website is, and a higher degree of interactivity provides greater support
for the exercise of specific jurisdiction. See Mavrix, 647 F.3d at 1226–
27.
HERBAL BRANDS, INC. V. PHOTOPLAZA, INC. 13
Mavrix, 647 F.3d at 1222, 1229–31 (holding that the
defendant expressly aimed the content of “celebrity-
gossip.net” at California because the site had a specific focus
on the California-centric entertainment industry); AMA, 970
F.3d at 1210 (concluding that the defendant’s website
“lack[ed] a forum-specific focus” because “the market for
adult content is global”); Will Co., 47 F.4th at 924–26
(ruling that the defendant’s website hosting and legal
compliance documents showed that the defendant
intentionally “appealed to and profited from” a specific
forum).
Here, it is undisputed that Defendants’ Amazon
storefronts are interactive websites: visitors can exchange
information with the host computer by inputting data
directly. But that fact alone does not establish “express
aiming,” and Plaintiff does not allege that Defendants
specifically directed their website (or their products) at
Arizona. Instead, Plaintiff argues that jurisdiction exists
because Defendants actually sold infringing products via an
interactive website and caused them to be delivered to forum
residents. 4
4
The fact that Defendants used Amazon storefronts instead of
proprietary websites does not change our analysis in this instance. As a
participant in the “Fulfillment by Amazon” service, Defendants store
their products in Amazon fulfillment centers, and Amazon processes,
packs, and ships orders from customers without direct seller
involvement. Defendants retain ownership of the goods and can choose
to end their relationship with Amazon at any time. Although Defendants
are removed from the process of handling orders, the use of Amazon’s
fulfillment service to handle shipping logistics does not alter our
jurisdictional analysis any more than a seller’s use of the post office to
ship its products would affect the inquiry. See Boschetto v. Hansing,
539 F.3d 1011, 1018–19 (9th Cir. 2008) (discussing how the use of eBay
as a means for establishing regular business with a remote forum could
14 HERBAL BRANDS, INC. V. PHOTOPLAZA, INC.
2. Defendants’ Sales of Products to Arizona
Residents are the Requisite “Something More.”
We have not squarely addressed the question whether
sales of a product to forum residents through an interactive
website constitute “something more” to establish express
aiming when there is no evidence that the seller specifically
targeted that forum. We now hold that if a defendant, in its
regular course of business, sells a physical product via an
interactive website and causes that product to be delivered to
the forum, the defendant “expressly aimed” its conduct at
that forum. 5 Though the emergence of the internet presents
new fact patterns, it does not require a wholesale departure
from our approach to personal jurisdiction before the internet
age.
The personal jurisdiction inquiry rests on the concept of
“fair play and substantial justice.” Int’l Shoe, 326 U.S. at
316 (citation and internal quotation mark omitted). If a
generate contacts sufficient to support jurisdiction). To be clear, that
determination could change if the details of Defendants’ relationship
with Amazon were different. See Yamashita, 62 F.4th at 504
(concluding that the defendant’s alleged sale of batteries to a third-party
website would not amount to purposeful availment without an indication
that the defendant targeted the forum).
5
We are careful to emphasize that our jurisdictional inquiry is concerned
with the actions of the defendant. Walden, 571 U.S. at 289. The conduct
purposefully directed at the forum is the seller’s action of accepting the
order and causing the product to be delivered to the forum. In this case,
the allegations do not suggest that Arizona residents purchased products
to be shipped to other states. But if an Arizona resident ordered a product
for delivery to a friend in California, a seller’s fulfillment of that
hypothetical order in the regular course of its business would be conduct
purposefully directed at California (the location of the delivery), not
Arizona (the residence of the purchaser).
HERBAL BRANDS, INC. V. PHOTOPLAZA, INC. 15
defendant chooses to conduct “a part of its general business”
in a particular forum, it is fair to subject that defendant to
personal jurisdiction in that forum. See Keeton v. Hustler
Mag., Inc., 465 U.S. 770, 779–80 (1984) (holding that,
because the defendant was “carrying on a part of its general
business” in the state, it was fair to subject the defendant to
jurisdiction for a claim arising out of that activity (internal
quotation marks omitted)). Pre-internet, the “distribution in
the forum state of goods originating elsewhere” was a
paradigmatic example of conduct purposefully directed at
the forum state. Schwarzenegger, 374 F.3d at 803; see
Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S.
915, 927 (2011) (“[W]here ‘the sale of a product . . . arises
from the efforts of the manufacturer or distributor to
serve . . . the market for its product in [several] States, it is
not unreasonable to subject it to suit in one of those States if
its allegedly defective merchandise has there been the source
of injury to its owner or to others.’” (quoting World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980))
(first and second alterations added) (emphasis omitted));
Plant Food Co-Op v. Wolfkill Feed & Fertilizer Corp., 633
F.2d 155, 159 (9th Cir. 1980) (holding that the exercise of
personal jurisdiction in Montana is consistent with due
process when it is based on the sale of fertilizer to a customer
in Montana); Mattel, Inc. v. MCA Records, Inc., 296 F.3d
894, 899 (9th Cir. 2002) (concluding that the defendants’
conduct was expressly aimed at California where there was
a plan to distribute a song throughout the United States and
the defendants sent promotional copies to the United States,
including California).
The fact that Defendants generated their business by
creating an Amazon storefront instead of by placing ads in a
nationwide print publication does not necessarily dictate a
16 HERBAL BRANDS, INC. V. PHOTOPLAZA, INC.
different outcome. Although the internet can be dizzyingly
complex, for jurisdictional purposes, the act of selling
physical products over the internet to a forum resident is
substantially the same as selling those same products to a
forum resident through a mail-order catalog.
Thus, we conclude that the sales of physical products
into a forum via an interactive website can be sufficient to
establish that a defendant expressly aimed its conduct at the
forum, provided that two key elements are present. First, the
sales must occur as part of the defendant’s regular course of
business instead of being “random, isolated, or fortuitous.”
Keeton, 465 U.S. at 774; see Boschetto, 539 F.3d at 1017,
1019 (holding that “the lone transaction for the sale of one
item” did not create personal jurisdiction over the defendants
in California because there were no allegations that the seller
was a regular user of eBay to sell cars or “as a broader
vehicle for commercial activity”). 6 When an online sale
occurs as part of a defendant’s regular course of business, it
“arises from the efforts of the [seller] to serve directly or
indirectly[] the market for its product . . . ,” and the
defendant “should reasonably anticipate being haled into
6
Although Boschetto is not binding because we conducted that analysis
under the “purposeful availment” framework, its rationale is still
instructive. Because our court’s distinction between “purposeful
direction” and “purposeful availment” is quite narrow, similar principles
underlie both tests. See, e.g., Holland Am. Line, 485 F.3d at 459–60
(concluding that the plaintiff failed to satisfy the purposeful availment
test and relying, in part, on Panavision Int’l, L.P. v. Toeppen, 141 F.3d
1316, 1322 (9th Cir. 1998), and Pebble Beach Co. v. Caddy, 453 F.3d
1151, 1158 (9th Cir. 2006), both of which employed the purposeful
direction test); cf. Davis v. Cranfield Aerospace Sols., Ltd., No. 22-
35099, slip op. at 8–9 (9th Cir. June 23, 2023) (suggesting that a rigid
dividing line between the two inquiries does not serve the purposes of
due process).
HERBAL BRANDS, INC. V. PHOTOPLAZA, INC. 17
court” where the product is sold. See World-Wide
Volkswagen Corp., 444 U.S. at 297. Whether a sale occurs
in a defendant’s regular course of business is a case-specific
question that may turn on factors such as the seller’s identity
(individual or a business entity), the nature of the website
used, the defendant’s total volume of online sales including
sales outside the forum, the number or variety of products
offered on the defendant’s website, and the defendant’s
online advertising. Because Defendants do not contend that
the alleged sales to Arizona residents occurred outside of
their regular course of business, we leave the precise
contours of that inquiry for another day.
Second, the defendant must exercise some level of
control over the ultimate distribution of its products beyond
simply placing its products into the stream of commerce.
See Ayla, 11 F.4th at 981–82 (concluding that the
defendant’s offering of products for sale through its website
and third-party websites was evidence that the defendant’s
contacts with the forum were not “random, isolated, or
fortuitous”); Holland Am. Line, 485 F.3d at 459 (“The
placement of a product into the stream of commerce, without
more, is not an act purposefully directed toward a forum
state.”). Although other factors may be relevant in certain
circumstances, the express aiming inquiry does not require a
showing that the defendant targeted its advertising or
operations at the forum.
Plaintiff’s allegations meet this standard. First,
Defendants allegedly used their Amazon storefronts—their
means of conducting regular business—to make product
sales to Arizona residents. Plaintiffs specifically allege that
Defendants operated their storefronts under the names of
business entities, offered a variety of Herbal Brands products
on their storefronts, and conducted a high volume of sales
18 HERBAL BRANDS, INC. V. PHOTOPLAZA, INC.
throughout the country. Second, Defendants exercised
control over distribution: they created and maintained a
distribution network that reached the relevant forum by
choosing to operate on a universally accessible website that
accepts orders from residents of all fifty states and delivers
products to all fifty states. See NBA Props., Inc. v.
HANWJH, 46 F.4th 614, 625 (7th Cir. 2022) (reasoning that,
when a defendant “structured its sales activity in such a
manner as to invite orders from [a forum] and developed the
capacity to fill them[,] [i]t cannot now point to its customers
in [that forum] and tell us, ‘It was all their idea.’” (citation
and some quotation marks omitted)), cert. denied, 143 S. Ct.
577 (2023). Accordingly, we hold that Defendants expressly
aimed their conduct at Arizona because they allegedly sold
products to Arizona residents via an interactive website in
their regular course of business and caused those products to
be delivered to the forum.
The outcome of the express-aiming inquiry does not
depend on the number of sales made to customers in the
forum. Drawing a line based on the number of sales would
require an arbitrary distinction that is not preferred in this
area of the law. See Burger King, 471 U.S. at 485–86
(emphasizing that, in determining whether to exercise
personal jurisdiction, courts must weigh the facts of each
case instead of relying on “talismanic jurisdictional
formulas”). If one sale were not enough to establish that a
defendant expressly aimed its conduct at a forum, we would
face the difficult question of how many sales would suffice.
The same challenges would exist if we were to attempt to
craft a rule based on sales to the forum as a percentage of a
defendant’s total sales.
Instead of taking on an arbitrary line-drawing task, we
require only that the sale must occur in the defendant’s
HERBAL BRANDS, INC. V. PHOTOPLAZA, INC. 19
regular course of business. Consistent with Keeton, our
holding distinguishes between a truly isolated sale and a
genuine attempt to serve the market. See Ayla, 11 F.4th at
981 (“As Keeton demonstrates, there is no ‘small percentage
of sales’ exception to the purposeful direction principles
discussed herein.”); Plant Food Co-Op, 633 F.2d at 159(distinguishing between a product sale that is “an isolated
occurrence” and a sale that “arises from the efforts of the
distributor to serve, directly or indirectly, the market for its
products in other states”). Any concerns that this rule will
have negative effects on small online sellers are best
addressed as part of the third prong of the specific
jurisdiction inquiry; the exercise of jurisdiction always
“must be reasonable.” Schwarzenegger, 374 F.3d at 802.
To reiterate, our holding answers only the narrow
question whether a defendant’s sale of a physical product to
a consumer in the forum state via an interactive website
constitutes conduct expressly aimed at a forum. If other
internet activity is allegedly the source of personal
jurisdiction, cases such as Mavrix, AMA, and Will Co.
would continue to apply. We also need not and do not
answer the question whether the outcome would be different
if a defendant did not sell directly to consumers but instead
sold its products to a third party with no knowledge of that
third party’s intent to sell into a particular forum. Cf.
Yamashita, 62 F.4th at 504.
We recognize that other circuits have adopted a range of
approaches in response to similar questions. See, e.g., Chloe
v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 165,
171–72 (2d Cir. 2010) (holding that a defendant’s conduct
was purposefully directed toward New York because the
defendant offered bags for sale on its website to New York
customers and shipped at least one bag to a New York
20 HERBAL BRANDS, INC. V. PHOTOPLAZA, INC.
customer); NBA Props., 46 F.4th at 624–25, 627 (holding
that the defendant purposefully directed its conduct at
Illinois where it sold a single infringing product to an agent
of the plaintiff who was an Illinois resident); Bros. & Sisters
in Christ, LLC v. Zazzle, Inc., 42 F.4th 948, 953–55 (8th Cir.
2022) (holding that the defendant’s sale of a single t-shirt to
a Missouri resident did not create sufficient contacts to
support the exercise of jurisdiction); Admar Int’l, Inc. v.
Eastrock, LLC, 18 F.4th 783, 787–88, 788 n.1 (5th Cir.
2021) (suggesting that the isolated sale of a single product to
a forum resident would be insufficient to support the
exercise of jurisdiction when the defendant did not solicit
business through targeted advertising).
Given the fact-intensive nature of the inquiry and the
wide range of potential analytical approaches, we do not
attempt to reconcile the split among the circuits. We look
only at the facts before us and put forward the test that makes
the most sense in this particular context. The ubiquity of
internet commerce creates a myriad of jurisdictional
questions. We answer only the one question before us and
leave the remainder for another day.
B. Plaintiff’s Harm Arises Out of Defendants’ Contacts
With the Forum State.
The second prong of the specific jurisdiction inquiry
requires that a plaintiff’s claims “‘arise out of or relate to the
defendant’s contacts’ with the forum.” Ford Motor Co. v.
Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1025 (2021)
(quoting Bristol-Myers Squibb Co. v. Superior Ct., 582 U.S.
255, 262 (2017)). “The first half of that standard asks about
causation; but the back half, after the ‘or,’ contemplates that
some relationships will support jurisdiction without a causal
showing.” Id. at 1026. Plaintiff’s claims—which allege
HERBAL BRANDS, INC. V. PHOTOPLAZA, INC. 21
harm caused by Defendants’ sales of products—clearly arise
out of and relate to Defendants’ conduct of selling those
same products to Arizona residents. See Ayla, 11 F. 4th at
983 (holding that the defendant’s promotion, sale, and
distribution of products in the forum relate to the plaintiff’s
trademark claims).
C. The Exercise of Jurisdiction Over Defendants Would
Be Reasonable.
Once Plaintiff satisfies the first two prongs, “the burden
then shifts to the defendant to ‘present a compelling case’
that the exercise of jurisdiction would not be reasonable.”
Schwarzenegger, 374 F.3d at 802 (quoting Burger King, 471
U.S. at 476–78). To evaluate reasonableness, we employ a
balancing test that weighs seven factors:
(1) the extent of the defendant’s purposeful
interjection into the forum state’s affairs; (2)
the burden on the defendant of defending in
the forum; (3) the extent of conflict with the
sovereignty of the defendant’s state; (4) the
forum state’s interest in adjudicating the
dispute; (5) the most efficient judicial
resolution of the controversy; (6) the
importance of the forum to the plaintiff’s
interest in convenient and effective relief;
and (7) the existence of an alternative forum.
Freestream Aircraft (Bermuda) Ltd. v. Aero Law Grp., 905
F.3d 597, 607 (9th Cir. 2018). Defendants contend that the
exercise of jurisdiction would be unreasonable, but they fail
to address any of those factors.
22 HERBAL BRANDS, INC. V. PHOTOPLAZA, INC.
That said, we do acknowledge that Defendants’ larger
concerns—the ability of plaintiffs to manufacture
jurisdiction and the potential for negative effects on e-
commerce—are legitimate. Although Defendants fail to
meet their burden here, a defendant in a future case could
argue that the exercise of personal jurisdiction would be
unreasonable, even if that defendant has “expressly aimed”
its conduct at the forum consistent with the test that we adopt
in this opinion. Many of the concerns that courts have
considered as part of the “express aiming” analysis are, in
our view, better addressed under the reasonableness prong.
For instance, we recognize that a plaintiff’s contacts
alone should not be enough to create jurisdiction over a
defendant in a forum. See Axiom Foods, 874 F.3d at 1070(“[W]e must look to the defendant’s ‘own contacts’ with the
forum, not to the defendant’s knowledge of a plaintiff’s
connections to a forum.” (quoting Walden, 571 U.S. at
289)). Other circuits have reached different conclusions
regarding whether sales to a plaintiff or its agents can be a
source of jurisdiction. Compare NBA Props., 46 F.4th at
625, 627 (holding that a single sale to an agent of the plaintiff
can create personal jurisdiction), with Toys “R” Us, Inc. v.
Step Two, S.A., 318 F.3d 446, 454–55 (3d Cir. 2003)
(holding that two sales initiated by the plaintiff cannot
establish personal jurisdiction). Depending on the particular
facts of a future case, jurisdiction might not exist if a plaintiff
purchased a product solely in an attempt to manufacture
jurisdiction. But the identity of the purchaser is not relevant
to whether the defendant expressly aimed its conduct at the
forum. And, in any event, Defendants do not make that
argument here.
The fairness prong also allows for the argument that the
exercise of jurisdiction is not appropriate because a
HERBAL BRANDS, INC. V. PHOTOPLAZA, INC. 23
defendant sold only a small number of products to forum
residents. If, for example, a Maine resident ran a small
business selling New England-themed keychains and made
a sale to an Arizona resident, the seller may be able to argue
successfully that it would not be reasonable to hale him into
court in Arizona because of the limited nature of his
purposeful interjection into Arizona’s affairs or the
excessive burden associated with defending himself in the
forum. See Freestream Aircraft, 905 F.3d at 607–08. But
those hypothetical facts are not the facts of this case and,
once again, Defendants do not advance that argument here.
In sum, we hold that the district court has personal
jurisdiction over Defendants. Taking Plaintiff’s
uncontroverted allegations as true, Defendants’ sales of
products via an interactive website occurred in their regular
course of business, Defendants caused those products to be
shipped to the forum, and Defendants were aware that harm
was occurring in the forum. Defendants have not met their
burden of showing that the exercise of personal jurisdiction
would be unreasonable. Thus, we conclude that Defendants
have sufficient minimum contacts with Arizona, Plaintiff’s
harm arises out of those contacts, and the exercise of
personal jurisdiction would be reasonable in the
circumstances.
REVERSED AND REMANDED.