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Full Opinion
United States Court of Appeals
For the First Circuit
No. 18-1195
PLIXER INTERNATIONAL, INC.,
Plaintiff, Appellee,
v.
SCRUTINIZER GMBH,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Lynch, Selya, and Lipez,
Circuit Judges.
James G. Goggin, with whom Verrill Dana, LLP was on brief,
for appellee.
John A. Woodcock III, with whom Edward J. Sackman and
Bernstein Shur PA were on brief, for appellant.
September 13, 2018
LYNCH, Circuit Judge. Given the particular facts of
this case, we affirm the thoughtful holding of the district court
that the exercise of specific personal jurisdiction against a
German corporation under Federal Rule of Civil Procedure 4(k)(2)
does not offend the Due Process Clause of the United States
Constitution. We note that this is an area in which the Supreme
Court has not yet had the occasion to give clear guidance, and so
we deliberately avoid creating any broad rules.
I.
We take the following facts from the undisputed record.
Scrutinizer GmbH1 (Scrutinizer) is a German corporation with its
principal place of business in Kassel, Germany. Through its
interactive, English-language website, Scrutinizer runs a "self-
service platform" that helps customers build better software.
Scrutinizer brings its customers' code from a third-party hosting
service like GitHub2 to its "controlled cloud environment," where
it runs "software analysis tools" meant to "improve source-code
quality, eliminate bugs, and find security vulnerabilities."
1 GmbH, or Gesellschaft mit beschränkter Haftung, is
German for "company with limited liability." See TMT North Am.,
Inc. v. Magic Touch GmbH, 124 F.3d 876, 879 n.1 (7th Cir. 1997).
2 Scrutinizer identifies GitHub as an example of a third-
party hosting service. GitHub offers, among other things,
repositories (digital storage spaces) for developers' code. See
Features, GitHub, https://github.com/features (last visited Sept.
10, 2018).
- 2 -
Scrutinizer offers potential customers a fourteen-day free trial.
In the course of its activities, Scrutinizer employs Google
Analytics.
Customers who contract to use Scrutinizer's online
service can pay only in euros. Scrutinizer's standard contract
with those customers contains a forum-selection clause and a
choice-of-law clause that provide that all lawsuits relating to
the contract be brought in German courts and under German law.
Scrutinizer maintains no U.S. office, phone number, or agent for
service of process; it directs no advertising at the United States;
and its employees do not go to the United States on business.
Scrutinizer provides its service globally. In an
affidavit, Scrutinizer's founder said that customers can use the
service "anywhere where Internet access is available."
Scrutinizer's website states that it is "[t]rusted by over 5000
projects and companies around the world." Over three-and-a-half
years, from January 2014 to June 2017,3 Scrutinizer sold its
services to 156 U.S. customers. These sales occurred in thirty
states, and the revenue from the contracts remitted to Scrutinizer
3 Plixer's discovery request had as its "relevant time
period" the period "from January 1, 2014 until the present day."
Scrutinizer responded to that request on June 2, 2017.
Scrutinizer's response identified the "aggregate number of
customers it has [had] in each state and the aggregate sales amount
in each state" "[s]ince 2013." Although "since 2013" to June 2017
suggests a longer time period, the parties and the district court
all consider it three-and-a-half years.
- 3 -
€165,212.07. This amount was just under $200,000 in June 2017.
The record does not reveal what percentage of Scrutinizer's total
revenue comes from the United States. It does, however, detail
Scrutinizer's customer numbers by state: from fifty-one in
California to one in each of eight other states. During the three-
and-a-half year period, Scrutinizer had two Maine customers, who
collectively paid Scrutinizer €3,100 for its services.
Plixer International, Inc. (Plixer), a Maine
corporation, sued Scrutinizer in federal district court in Maine
on November 21, 2016, for trademark infringement. Plixer owns the
U.S. registered mark "Scrutinizer," for which it filed in July
2015. Plixer's trademark application said that Plixer used the
mark as early as November 2005. That application covered
"[c]omputer software and hardware for analyzing, reporting and
responding to malware infections and application performance
problems, used in the field of information technology." In its
complaint, Plixer alleged that Scrutinizer's use of the term
"Scrutinizer" caused "confusion, mistake or deception as to the
source" of Scrutinizer's services; that the use "will infringe
and/or dilute Plixer's prior rights" in the mark; that the use
"will interfere with Plixer's use" of its mark; and that
Scrutinizer's "services are closely related to the services
covered by Plixer's" mark, so "the public is likely to be confused
about whether Plixer is the source of [Scrutinizer's] services or
- 4 -
whether Plixer is affiliated with or the sponsor of [Scrutinizer's]
services."
Plixer gave two bases for personal jurisdiction over
Scrutinizer, only one of which is at issue in this appeal.4 It
said that Scrutinizer's nationwide contacts with the United States
supported specific jurisdiction under Federal Rule of Civil
Procedure 4(k)(2). After rejecting an initial motion to dismiss,5
the district court allowed limited jurisdictional discovery.
In January 2017, after this lawsuit began, Scrutinizer
filed a U.S. trademark application for "Scrutinizer." The record
is silent on the reasons why Scrutinizer filed this application.
On prima facie review, the district court found that it
could constitutionally exercise specific personal jurisdiction
over Scrutinizer under Rule 4(k)(2). Plixer Int'l, Inc. v.
Scrutinizer GmbH, 293 F. Supp. 3d 232, 245 (D. Me. 2017). It held
that Scrutinizer "operated a highly interactive website that sold
its cloud-based services directly through the website, that it was
4 Plixer also claimed that the court had specific
jurisdiction over Scrutinizer based on its business in Maine. The
district court found that Scrutinizer's Maine contacts, by
themselves, were insufficient to support jurisdiction.
Scrutinizer "could not reasonably have expected to be haled into
a Maine forum" based on sales to two forum residents, so the
exercise of jurisdiction would be unreasonable on that basis.
Plixer Int'l, Inc. v. Scrutinizer GmbH, 293 F. Supp. 3d 232, 245
(D. Me. 2017). Plixer has not challenged that determination here.
5 In that order, the district court also dismissed by
agreement any claim of general jurisdiction over Scrutinizer.
- 5 -
open to business throughout the world, that it accepted recurrent
business from the United States in a substantial amount, and that
it did so knowingly." Id. at 241. The district court concluded
that the criteria for purposeful availment in the United States
had been met. Id. at 242-43. The district court also found that
the exercise of jurisdiction was reasonable and that Scrutinizer
had not carried its burden of proving otherwise. Id. at 245.
As part of its analysis, the district court considered
Scrutinizer's application for U.S. trademark protection. The
record gave the district court "no hint" why Scrutinizer had filed
the application. Id. at 243. The district court did not find
that contact conclusive, but said that "it does confirm
[Scrutinizer's] desire to deal with the American market." Id. at
243.
We granted this interlocutory appeal on the district
court's recommendation.6
6 Scrutinizer moved for permission to file an
interlocutory appeal under 28 U.S.C. § 1292(b). The district court
granted that motion. The district court found that the matter met
the standard for such an appeal: it involved a controlling question
of law on which there was substantial ground for difference of
opinion and the resolution of which would help bring an end to the
litigation. See 28 U.S.C. § 1292(b).
- 6 -
II.
A. Standard of Review
The district court held that Plixer had made a prima
facie showing of personal jurisdiction. On prima facie review, we
take the plaintiff's evidentiary proffers as true and we consider
uncontradicted facts proffered by the defendant. C.W. Downer &
Co. v. Bioriginal Food & Sci. Corp., 771 F.3d 59, 65 (1st Cir.
2014). The plaintiff's burden is to proffer evidence "sufficient
to support findings of all facts essential to personal
jurisdiction" without relying on unsupported allegations. A Corp.
v. All Am. Plumbing, Inc., 812 F.3d 54, 58 (1st Cir. 2016). We
review de novo the district court's conclusion that Plixer met its
burden of proffering sufficient evidence to support findings of
all facts essential to personal jurisdiction. See Foster-Miller,
Inc. v. Babcock & Wilcox Can., 46 F.3d 138, 147 (1st Cir. 1995).
B. Personal Jurisdiction
Plixer's basis for asserting personal jurisdiction over
Scrutinizer is Federal Rule of Civil Procedure 4(k)(2).7 Rule
7 Rule 4(k)(2) states:
For a claim that arises under federal law,
serving a summons or filing a waiver of
service establishes personal jurisdiction
over a defendant if:
(A) the defendant is not subject to
jurisdiction in any state's courts of general
jurisdiction; and
- 7 -
4(k)(2) has three requirements: (1) the cause of action must arise
under federal law; (2) the defendant must not be subject to the
personal jurisdiction of any state court of general jurisdiction;
and (3) the federal court's exercise of personal jurisdiction must
comport with due process. United States v. Swiss Am. Bank, Ltd.
(Swiss I), 191 F.3d 30, 38 (1st Cir. 1999). All parties agree
that the first two requirements are met here. The question is
whether personal jurisdiction comports with due process.
This is a federal question case, so constitutional
limits on jurisdiction come from the Due Process Clause of the
Fifth Amendment. United States v. Swiss Am. Bank, Ltd. (Swiss
II), 274 F.3d 610, 618 (1st Cir. 2001). The Fifth Amendment Due
Process Clause requires the plaintiff to "show that the defendant
has adequate contacts with the United States as a whole, rather
than with a particular state."8 Id. To see if Scrutinizer's
(B) exercising jurisdiction is
consistent with the United States Constitution
and laws.
8 Scrutinizer argues for the first time on appeal that we
should not aggregate its nationwide contacts. It says that,
instead, we should require Plixer to make an additional showing
that jurisdiction would be reasonable in Maine. Scrutinizer admits
that it did not raise this argument before the district court,
except in the most general of terms. The argument is waived.
"Ordinarily, an appellant who has not proffered a particular claim
or defense in the district court 'may not unveil it in the court
of appeals.'" Nat'l Ass'n of Soc. Workers v. Harwood, 69 F.3d
622, 627 (1st Cir. 1995) (quoting United States v. Slade, 980 F.2d
27, 30 (1st Cir. 1992)); see also McCoy v. Mass. Inst. of Tech.,
950 F.2d 13, 22 (1st Cir. 1991) ("If claims are merely insinuated
- 8 -
nationwide contacts are adequate, we turn to the familiar "minimum
contacts" framework.
Due process requires that the defendant "have certain
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) (quoting Milliken v. Meyer, 311 U.S. 457, 463
(1940)). Plixer has asserted specific personal jurisdiction over
Scrutinizer, so the minimum contacts inquiry has three prongs:
relatedness, purposeful availment, and reasonableness. That is,
Plixer must show that (1) its claim directly arises out of or
relates to the defendant's forum activities; (2) the defendant's
forum contacts represent a purposeful availment of the privilege
of conducting activities in that forum, thus invoking the benefits
and protections of the forum's laws and rendering the defendant's
involuntary presence in the forum's courts foreseeable; and
(3) the exercise of jurisdiction is reasonable. A Corp., 812 F.3d
at 59.
rather than actually articulated in the trial court, we will
ordinarily refuse to deem them preserved for appellate review.").
To the extent Scrutinizer asks us to revisit this Court's
earlier precedent in Swiss II, we note that a newly constituted
panel is bound by the decisions of prior panels in the same
circuit. United States v. Malouf, 466 F.3d 21, 26-27 (1st Cir.
2006).
- 9 -
Plixer must show that it has met all three requirements
to establish personal jurisdiction. C.W. Downer, 771 F.3d at 65.
Scrutinizer has conceded the first requirement;9 we hold that
Plixer has met the remaining two.
1. Purposeful Availment
Plixer bears the burden of demonstrating that
Scrutinizer has purposefully availed "itself of the privilege of
conducting activities within the forum [], thus invoking the
benefits and protections of its laws." Hanson v. Denckla, 357
U.S. 235, 253 (1958). The purposeful availment requirement ensures
that the exercise of jurisdiction is essentially voluntary and
foreseeable, C.W. Downer, 771 F.3d at 66, not premised on a
defendant's "random, fortuitous, or attenuated contacts," Carreras
v. PMG Collins, LLC, 660 F.3d 549, 555 (1st Cir. 2011) (quoting
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)). This
requirement applies to foreign defendants. See C.W. Downer, 771
F.3d at 66 (citing J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S.
873, 885-87 (2011) (plurality opinion)).
The Supreme Court has not definitively answered how a
defendant's online activities translate into contacts for purposes
9 The district court concluded that Scrutinizer's use of
third parties, like Google Analytics, that maintain servers in the
United States, was not a suit-related U.S. contact. Plixer, 293
F. Supp. 3d at 240-41. Because Scrutinizer has conceded
relatedness, we need not consider whether the district court's
conclusion was correct.
- 10 -
of the minimum contacts analysis. Instead, in Walden v. Fiore, it
"le[ft] questions about virtual contacts for another day." 571
U.S. 277, 290 n.9 (2014). In the absence of Supreme Court
guidance, we are extremely reluctant to fashion any general
guidelines beyond those that exist in law, so we emphasize that
our ruling is specific to the facts of this case.
This Court has twice addressed "virtual contacts," but
in cases whose factual scenarios are far-removed from this one.
One baseline principle has emerged: a website operator does not
necessarily purposefully avail itself of the benefits and
protections of every state in which its website is accessible.
See A Corp., 812 F.3d at 61 (holding that "the mere availability
of a passive website" cannot by itself subject a defendant to
personal jurisdiction in the forum); Cossaboon v. Maine Med. Ctr.,
600 F.3d 25, 35 (1st Cir. 2010) (noting that the running of a
"website that is visible in a forum and that gives information
about a company and its products" cannot alone support the exercise
of jurisdiction) (quoting McBee v. Delica Co., 417 F.3d 107, 124
(1st Cir. 2005)); accord be2 LLC v. Ivanov, 642 F.3d 555, 558-59
(7th Cir. 2011); Toys "R" Us, Inc. v. Step Two, S.A., 318 F.3d
446, 454 (3d Cir. 2003); ALS Scan, Inc. v. Digital Serv.
Consultants, Inc., 293 F.3d 707, 713–14 (4th Cir. 2002). The
district court held that Scrutinizer had not merely made its
website available in the United States; it had used that website
- 11 -
to engage "in sizeable and continuing commerce with United States
customers." Plixer, 293 F. Supp. 3d at 242. As a result,
Scrutinizer "should not be surprised at United States-based
litigation." Id. We agree.
Scrutinizer attacks the district court ruling with three
arguments. Scrutinizer first says that it did no more than enter
its product into the stream of commerce. Second, it argues that
its contacts with the United States were not its own but instead
the product of its customers' unilateral actions. And third, it
says that because it did not specifically target the United States
it is not subject to specific personal jurisdiction in a United
States forum. We reject each attack.
First, this is not the prototypical stream-of-commerce
case. Cases including a standard stream-of-commerce analysis
usually involve entities who cannot necessarily predict or control
where downstream their products will land; intervening actors like
distributors may take the products to unforeseeable markets. But
no intervening actor can bring Scrutinizer's product somewhere
unexpected. Scrutinizer's service goes only to the customers that
Scrutinizer has accepted. This means that we have an objectively
clearer picture of Scrutinizer's intent to serve the forum, the
crux of the purposeful availment inquiry. See C.W. Downer, 771
F.3d at 66.
- 12 -
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286
(1980), illustrates a significant difference between this case and
the prototypical stream-of-commerce one. There, the Audi-owning
plaintiff drove his car into Oklahoma, a market that the defendant
did not then serve. See id. at 295. A car manufacturer cannot
limit where its customers take its product. In contrast,
Scrutinizer can take steps to limit access to its website. For
instance, Scrutinizer could design its site to not interact with
U.S. users, cf. Yahoo! Inc. v. La Ligue Contre Le Racisme et
L'Antisemitisme, 433 F.3d 1199, 1203 (9th Cir. 2006), but it has
not done so. And Scrutinizer could take the low-tech step of
posting a disclaimer that its service is not intended for U.S.
users. See Bensusan Restaurant Corp. v. King, 126 F.3d 25, 27 (2d
Cir. 1997); cf. Illinois v. Hemi Group LLC, 622 F.3d 754, 755 (7th
Cir. 2010). Again, it has not done so.10 Instead, Scrutinizer's
website (https://scrutinizer-ci.com/) is globally accessible. In
10In contrast, Scrutinizer did take a step to deal with
foreign contract-based litigation -- it included a forum-selection
clause and a choice-of-law clause in its standard customer
contract. Those clauses provide that all lawsuits be brought in
German courts and under German law. But Scrutinizer never suggests
that Plixer could bring this suit in an alternate forum, whether
Germany or elsewhere. And the clauses do not apply here; Plixer
is not a party to Scrutinizer's contract, and Scrutinizer does not
suggest that Plixer is bound by the contract. As the district
court correctly noted, those clauses suggest that Scrutinizer
"knew it was extending its reach outside Germany." Plixer, 293 F.
Supp. 3d at 241.
- 13 -
fact, the website gives no indication that it is not meant for
U.S. consumption, or even that it is run by a German company.
Scrutinizer says that we should not consider whether a
defendant blocks access to its website -- access-blocking software
is imperfect, developing technology. If a defendant tries to limit
U.S. users' ability to access its website, however, that is surely
relevant to its intent not to serve the United States. The
converse is true here: Scrutinizer's failure to implement such
restrictions, coupled with its substantial U.S. business, provides
an objective measure of its intent to serve customers in the U.S.
market and thereby profit. And Scrutinizer's warnings about the
inefficacy of access-blocking technology are misplaced based on
the record before us. Scrutinizer can track where its customers
are from -- it provided state-by-state customer information in
response to Plixer's discovery request.
Second, Scrutinizer voluntarily served U.S. customers.
Specific personal jurisdiction must be based on a defendant's
voluntary contact with the forum; it "may not rest on the
'unilateral activity of another party or a third person.'"
Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 208 (1st Cir.
1994) (quoting Burger King, 471 U.S. at 475). Here, Scrutinizer
made a globally accessible website and U.S. customers used that
website to purchase and pay for Scrutinizer's service. Further,
Scrutinizer knew that it was serving U.S. customers and took no
- 14 -
steps to limit its website's reach or block its use by U.S.
customers. After three-and-a-half years of knowingly serving U.S.
customers, Scrutinizer cannot now claim that its contact with the
United States was involuntary. Cf. Walden, 571 U.S. at 286 (noting
that the exercise of jurisdiction may be constitutional even though
a defendant's forum contacts are "intertwined with his
transactions or interactions with the plaintiff or other
parties").
Third, Scrutinizer's purposeful U.S. contacts were
sufficient to put Scrutinizer on notice that it should expect to
be haled into U.S. court. Scrutinizer has "target[ed] the world"
by making its website globally accessible. See Nicastro, 564 U.S.
at 890 (Breyer, J., concurring). But Scrutinizer says that it
could not reasonably anticipate specific jurisdiction because it
did not specifically target the United States with its business.
We disagree.
Supreme Court precedent does not establish specific
targeting of a forum as the only means of showing that the
purposeful availment test has been met. The Supreme Court last
considered personal jurisdiction over a foreign defendant in
Nicastro. The Nicastro plurality would have permitted the exercise
of jurisdiction "only where the defendant can be said to have
targeted the forum." 564 U.S. at 882. That is the same rule that
Scrutinizer urges us to adopt. However, this rule did not command
- 15 -
a majority on the Court and so is not binding here. "When a
fragmented Court decides a case and no single rationale explaining
the result enjoys the assent of five justices, 'the holding of the
Court may be viewed as that position taken by those Members who
concurred in the judgment on the narrowest grounds.'" Marks v.
United States, 430 U.S. 188, 193 (1977) (quoting Gregg v. Georgia,
428 U.S. 153, 169 n.15 (1976) (opinion of Stewart, Powell, and
Stevens, JJ)). In Nicastro, Justice Breyer held that "resolving
[the] case require[d] no more than adhering to [the Supreme
Court's] precedents." 564 U.S. at 890 (Breyer, J., concurring).
That holding was the narrowest and so controls here. Accord
Williams v. Romarm, SA, 756 F.3d 777, 784 (D.C. Cir. 2014) (finding
Justice Breyer's concurring opinion controlling under Marks);
Ainsworth v. Moffett Eng'g, Ltd., 716 F.3d 174, 178 (5th Cir. 2013)
(same); AFTG-TG, LLC v. Nuvoton Tech. Corp., 689 F.3d 1358, 1363
(Fed. Cir. 2012) (same).
Justice Breyer found no jurisdiction under any of the
Court's precedents. There was "no 'regular . . . flow' or 'regular
course' of sales," as required by the concurrences in Asahi Metal
Industry Co. v. Superior Court of California, 480 U.S. 102 (1987),
see id. at 117 (Brennan, J., concurring in part and concurring in
judgment); id. at 122 (Stevens, J., concurring in part and
concurring in judgment). Nicastro, 564 U.S. at 889 (Breyer, J.,
concurring). And there was "no 'something more'" that the Asahi
- 16 -
plurality would have required, see Asahi, 480 U.S. at 111-12
(opinion of O'Connor, J.). Nicastro, 564 U.S. at 889 (Breyer, J.,
concurring). As such, "the plurality's seemingly strict no-
jurisdiction rule" was unnecessary. Id. at 890. Justice Breyer
also criticized New Jersey's test, which would subject a foreign
defendant to jurisdiction so long as it "knows or reasonably should
know that its products are distributed through a nationwide
distribution system that might lead to those products being sold
in any of the fifty states." Id. at 891. We need not adopt such
a broad rule as the New Jersey court's to uphold the exercise of
specific personal jurisdiction over Scrutinizer.
Ultimately, although a close call, we conclude that the
German company could have "reasonably anticipated" the exercise of
specific personal jurisdiction based on its U.S. contacts.
Scrutinizer's "regular flow or regular course of sales" in the
United States show that it has purposefully availed itself of the
U.S. forum. The record does not reveal what percentage of
Scrutinizer's business came from the United States. Nor does the
record reveal whether Scrutinizer ever did an online trademark
search for the term "Scrutinizer," either before or after it sought
U.S. customers.11 But the record does show that Scrutinizer used
11 Since 2000, the public has been able to search and
retrieve for free "the almost millions of pending, registered,
abandoned, cancelled or expired trademark registrations" online.
3 McCarthy on Trademarks and Unfair Competition § 19:6 (5th ed.).
- 17 -
its website to obtain U.S. customer contracts. Those contracts
yielded nearly $200,000 in business over three-and-a-half years.
This is not a situation where a defendant merely made a website
accessible in the forum. See, e.g., Scottsdale Capital Advisors
Corp. v. The Deal, LLC, 887 F.3d 17, 21 (1st Cir. 2018). Instead,
Scrutinizer's voluntary service of the U.S. market and its not
insubstantial income from that market show that it could have
"reasonably anticipated" being haled into U.S. court.
This holding accords with Supreme Court precedent. In
Keeton v. Hustler Magazine, the Supreme Court upheld the exercise
of jurisdiction because the magazine publisher defendant had
"continuously and deliberately exploited the [forum] market." 465
U.S. 770, 781 (1984). The magazine publisher had a nationwide
market -- it had not targeted the forum particularly -- but the
court held it should reasonably anticipate suit based on its
"substantial number of" sales. Id.
This conclusion is also consistent with post-Nicastro
rulings from around the country. For instance, the en banc Oregon
Supreme Court found a regular course of sales where the defendant
sold "over 1,100 CTE battery chargers within Oregon over a two-
year period," with in-state sales totaling about $30,000.
Willemsen v. Invacare Corp., 282 P.3d 867, 874, 871 (Or. 2012) (en
banc). This "pattern of sales" made the exercise of personal
jurisdiction over the defendant constitutional. Id. at 877. In
- 18 -
contrast, a New Jersey federal district court found no regular
course of sales when, over about a year, fewer than ten in-state
sales brought the defendant "less than $3,383 in revenue." Oticon,
Inc. v. Sebotek Hearing Sys., LLC, 865 F. Supp. 2d 501, 514-15 (D.
N.J. 2011). "Such scant sales activity" did not "justify the
exercise of specific jurisdiction" there. Id. Scrutinizer's U.S.
business more resembles the former example than the latter one.
Further, our holding is in accord with those of our
sister circuits. The Ninth Circuit upheld the exercise of
jurisdiction over a defendant who "continuously and deliberately
exploited" the forum market, and who specifically targeted its
website at the forum market. Mavrix Photo, Inc. v. Brand Techs.,
Inc., 647 F.3d 1218, 1230 (9th Cir. 2011). The Sixth Circuit
upheld the exercise of jurisdiction over a defendant who "regularly
[chose] to do business with [forum] residents." Bird v. Parsons,
289 F.3d 865, 875 (6th Cir. 2002). In contrast, the Seventh
Circuit found no jurisdiction when the plaintiff pointed to no
litigation-related in-forum sales and to no efforts to
specifically target the forum. See Advanced Tactical Ordinance
Sys., LLC v. Real Action Paintball, Inc., 751 F.3d 796, 801, 803
(7th Cir. 2014). And the Fourth Circuit found that a Maryland
court had no jurisdiction over a nonprofit defendant who limited
its services to Illinois and who accepted, over ten years, less
than $1,600 in donations from Marylanders. See Carefirst of Md.,
- 19 -
Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 395, 401
(4th Cir. 2003). We think each of these are consistent with our
holding that Scrutinizer is subject to personal jurisdiction.
Finally, we consider Scrutinizer's U.S. trademark
application, filed after this litigation began. We have stated
that "in most cases, contacts coming into existence after the cause
of action arose will not be relevant." Harlow, 432 F.3d at 62.
But we made that statement in a suit where the plaintiff alleged
medical malpractice. See id. at 53. That discrete-in-time tort
is unlike the alleged continuing "tortious" conduct at issue here.
Moreover, Harlow based its general rule on the concept of
"relatedness," see id. at 62, which Scrutinizer has conceded.
Because Scrutinizer's trademark application lies outside Harlow's
rule, we consider the application for whatever impact it has.
The parties have not spoken to why Scrutinizer filed the
application, except to suggest that filing may be a precondition
for sending a cease and desist letter. We agree with the district
court that this contact confirms Scrutinizer's desire to deal with
the U.S. market, but does not "tip the scales." Plixer, 293 F.
Supp. 3d at 243.
2. Reasonableness
Though Plixer has satisfied the first two prongs of the
analysis, we must still see whether the exercise of jurisdiction
here is fair and reasonable. We consider five "gestalt" factors:
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(1) the defendant's burden of appearing [in
the forum], (2) the [forum's] interest in
adjudicating the dispute, (3) the plaintiff's
interest in obtaining convenient and effective
relief, (4) the judicial system's interest in
obtaining the most effective resolution of the
controversy, and (5) the common interests of
all sovereigns in promoting substantive social
policies.
Ticketmaster, 26 F.3d at 209 (citing Burger King, 471 U.S. at 477).
These factors typically "play a larger role in cases . . . where
the minimum contacts question is very close." C.W. Downer, 771
F.3d at 69 (quoting Adelson v. Hananel (Adelson I), 510 F.3d 43,
51 (1st Cir. 2007)). The defendant bears the burden of
establishing that the exercise of jurisdiction would be
unreasonable, Burger King, 471 U.S. at 477, and, although the
question is close, Scrutinizer has not shown that it would be
unreasonable to assert jurisdiction here.
We consider first the burden on Scrutinizer. That a
foreign defendant is involved here is of some weight. Subjecting
a defendant to a foreign legal system poses "unique burdens" that
carry "significant weight in assessing the reasonableness" of
jurisdiction. Asahi, 480 U.S. at 114. We acknowledge this
significant burden, but do not find it dispositive. Scrutinizer
does substantial and recurrent business in the U.S. As such it
"cannot wholly expect to escape the reach of United States courts."
Jet Wine & Spirits, Inc. v. Bacardi & Co., Ltd., 298 F.3d 1, 12
(1st Cir. 2002). Although this factor points in Scrutinizer's
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favor, its weight is somewhat diminished by Scrutinizer's
substantial U.S. business.
For further support, Scrutinizer points to the burden of
cross-Atlantic travel. But "mounting an out-of-state defense most
always means added trouble and cost," BlueTarp Fin., Inc. v. Matrix
Constr. Co., 709 F.3d 72, 83 (1st Cir. 2013), and modern travel
"creates no especially ponderous burden for business travelers,"
Pritzker v. Yari, 42 F.3d 53, 64 (1st Cir. 1994). A defendant
hoping to show that travel burdens should make the difference must
show that those burdens are "special or unusual." BlueTarp, 709
F.3d at 83 (quoting Hannon v. Beard, 524 F.3d 275, 285 (1st Cir.
2008)) (internal quotation marks omitted). Scrutinizer has not
done so. As we noted in C.W. Downer, many of the case's logistical
challenges "can be resolved through the use of affidavits and video
devices." 771 F.3d at 70.
On the second factor, Scrutinizer does not dispute that
the United States has an interest in adjudicating a dispute over
the application of U.S. trademark law. See, e.g., McBee v. Delica
Co., Ltd., 417 F.3d 107, 121 (1st Cir. 2005) (noting the "core
purposes of the Lanham Act, which are both to protect the ability
of American consumers to avoid confusion and to help assure a
trademark's owner that it will reap the financial and reputational
rewards associated with having a desirable name or product").
Further, the United States has an interest in remedying an alleged
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injury that occurs in the United States. See Keeton, 465 U.S. at
777.
As to the final three factors, Scrutinizer presents no
arguments tending to show that the exercise of jurisdiction would
be unreasonable here. It concedes that Plixer has an interest in
obtaining effective relief in a U.S. forum. And it doubts whether
the fourth and fifth factors apply. Even if the last two factors
"weighed against jurisdiction, this alone would be 'insufficient
to tip the constitutional balance' on the facts presented here."
Adelson v. Hananel (Adelson II), 652 F.3d 75, 84 (1st Cir. 2011)
(quoting Adelson I, 510 F.3d at 51).
The gestalt factors do not support Scrutinizer's
protests. "When minimum contacts have been established, often the
interests of the plaintiff and the forum in the exercise of
jurisdiction will justify even the serious burdens placed on the
alien defendant." Asahi, 480 U.S. at 114. Scrutinizer has not
shown that the exercise of jurisdiction here would be unreasonable.
* * *
Our role is limited to adjudicating the precise issue in
front of us. This appeal raised only one issue: whether the
exercise of specific personal jurisdiction over Scrutinizer would
violate the Fifth Amendment's Due Process Clause. We conclude
that on the facts here the exercise of jurisdiction would not
violate the Due Process Clause.
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III.
The judgment of the district court is affirmed.
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