656 F.2d 1376 (9th Cir. 1981), 79-4270, Kransco Mfg., Inc. v. Markwitz

Docket Nº:79-4270.
Citation:656 F.2d 1376
Party Name:KRANSCO MANUFACTURING, INC., Plaintiff-Appellant, v. Bernhard MARKWITZ, Defendant-Appellee.
Case Date:September 25, 1981
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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656 F.2d 1376 (9th Cir. 1981)

KRANSCO MANUFACTURING, INC., Plaintiff-Appellant,

v.

Bernhard MARKWITZ, Defendant-Appellee.

No. 79-4270.

United States Court of Appeals, Ninth Circuit

September 25, 1981

Argued and Submitted Jan. 8, 1981.

Page 1377

John K. Uilkema, Miami, Fla. (argued), for plaintiff-appellant; Frank A. Neal, Naylor, Neal & Uilkema, San Francisco, Cal., on brief.

William E. Levin, San Francisco, Cal. (argued), for defendant-appellee; Nancy E. Smith, Thelen, Marrin, Johnson & Bridges, San Francisco, Cal., on brief.

Appeal from the United States District Court for the Northern District of California.

Before PREGERSON, ALARCON and NELSON, Circuit Judges.

PREGERSON, Circuit Judge:

On May 5, 1978, appellant, Kransco Manufacturing, Inc. (Kransco), commenced this action in the United States District Court for the Northern District of California, seeking a declaratory judgment under 28 U.S.C. §§ 2201 and 1338 that a patent owned by appellee, Bernhard Markwitz, was invalid, or if valid, had not been infringed. Appellant also sought damages for unfair competition under 28 U.S.C. § 1332. On Markwitz's motion, the district court dismissed the action for lack of personal jurisdiction. This appeal followed. We affirm.

The facts are undisputed. Appellant Kransco is a California corporation in the business of manufacturing and selling aquatic sporting goods including inflatable swim supports known as "Swims." Appellee Markwitz is a West German citizen and resident who owns a United States patent for inflatable supports marketed under the trade name "Schwimmflugel." These swim supports are distributed throughout the United States by BEMA U.S.A., Inc. (BEMA), a Florida corporation wholly owned by appellee Markwitz, his wife, and children. BEMA began selling the swim supports to California buyers about one year before the commencement of this suit. BEMA spends substantial sums advertising Schwimmflugel on television. There is no evidence, however, that the television commercials have been shown in California.

Appellee Markwitz, does not maintain an office, home, or personnel in California. Markwitz concedes, however, that in 1977 he mailed several letters to Kransco charging it with infringement of his patent. Moreover, Markwitz, as president of BEMA, visited Anaheim, California during October 13-15, 1978 to attend a trade show for swimming goods manufacturers. BEMA maintained a booth at the show to promote and take orders for Schwimmflugel. The record is silent on whether any of these items were actually sold at the show.

We now address the question whether the district court had personal jurisdiction over Markwitz, a nonresident, not served within California, the state in which the district court sits. That power depends on two distinct considerations: "(First,) whether (, as Fed.R.Civ.P. 4(e) requires,) an applicable state rule or statute potentially confers personal jurisdiction over the (out-of-state) defendant, and (second,) whether assertion of such jurisdiction accords with constitutional principles of due process." Data Disc, Inc. v. Systems Technology Assoc., Inc., 557 F.2d 1280, 1286 (9th Cir. 1977).

The applicable California statute is section 410.10 of the California Code of Civil Procedure California's long-arm statute. 1 In earlier decisions, we concluded that section 410.10 imposes limits on the power of California courts to exercise personal jurisdiction that are " 'coextensive with the outer limits of due process under the state and federal constitutions, as those limits have been defined by the United States Supreme Court.' " Data Disc, 557 F.2d at 1286, quoting Republic Int'l Corp. v. Amco Engineers, Inc., 516 F.2d 161, 167 (9th Cir. 1975). In

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Data Disc, we observed that California courts have...

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