A Corp. v. All Am. Plumbing, Inc.

• Decision Date: 27 January 2016
• Docket Number: No. 15–1509.,15–1509.
• Citation: 812 F.3d 54
• Parties: A CORP. d/b/a Rooter Man, Plaintiff, Appellant, v. ALL AMERICAN PLUMBING, INC., Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

812 F.3d 54

A CORP. d/b/a Rooter Man, Plaintiff, Appellant,
v.
ALL AMERICAN PLUMBING, INC., Defendant, Appellee.

No. 15–1509.

United States Court of Appeals, First Circuit.

Jan. 27, 2016.

812 F.3d 56

Juan (Jenny) Liu, for appellant.

Albert A. DeNapoli, with whom Matthew S. Furman, and Tarlow, Breed, Hart & Rodgers, P.C., were on brief, for appellee.

Before LYNCH,^* THOMPSON, and KAYATTA, Circuit Judges.

812 F.3d 57

THOMPSON, Circuit Judge.

Plaintiff-appellant A Corp. appeals from the district court's dismissal of its trademark infringement action against defendant-appellee All American Plumbing, Inc. ("All American") for lack of personal jurisdiction. A Corp. argues that the district court had specific personal jurisdiction over All American because All American maintains an interactive website that is accessible in Massachusetts and caused injury to the trademark owner in Massachusetts. We disagree and affirm.

I. BACKGROUND

On August 28, 2014, A Corp. filed this trademark infringement action against All American, alleging federal trademark infringement, false designation of origin, dilution, interference with contractual relation, unfair competition, and unjust enrichment. A Corp. is a Massachusetts plumbing corporation and franchisor¹ that owns the federal registrations of the "Rooter Man" mark, "A Rooter Man to the Rescue" mark, and the "Rooter Man" words (collectively, the "Rooter Man marks"), which are registered for "cleaning and repairing septic systems and clearing clogged pipes and drains."² In its complaint, A Corp. alleged that All American—a family-run plumbing company located in Arizona—was improperly using A Corp.'s Rooter Man mark, or one confusingly similar, to advertise its plumbing business on its website, www. allamericanplumbingandrooter.com, which A Corp. described as being "interactive" and continuously "accessible in Massachusetts." A Corp. claimed that All American's unauthorized use of the Rooter Man marks interfered with A Corp.'s franchise agreement with its Arizona franchisee, confusing its customers and prospective franchisees as to the possible relationship between the two companies.

All American, an Arizona corporation with its principal place of business in Mesa, Arizona, subsequently moved to dismiss for lack of personal jurisdiction and improper venue,³ highlighting that it conducts business exclusively in Arizona, with no employees, property, offices, or bank accounts in Massachusetts. All American further noted that it is only licensed to provide plumbing services in Arizona and that its website, although widely accessible, solicits plumbing business solely in Arizona. And even then, All American explained, its website solicitations are limited to providing the email addresses and local phone and fax numbers for All American's three Arizona locations—East Valley, West Valley and Phoenix. All American's website does not mention Massachusetts, and All American has never offered or provided any plumbing services in Massachusetts.

After consideration of the parties' submissions, including affidavits submitted by both parties, the district court granted All American's motion to dismiss, concluding that A Corp. had not met its burden to establish either general or specific jurisdiction. The district court determined that A Corp. had only offered allegations

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or evidence of two contacts between All American and the Commonwealth: (1) All American's website, which is accessible in Massachusetts (along with everywhere else); and (2) All American's lawyer's general appearance in the action.⁴ Concluding that neither of these contacts were sufficient to establish jurisdiction, the district court specifically found that All American's website was not "interactive" and that it did not directly offer products or services for sale. Accordingly, the district court concluded that All American's website, standing alone, was insufficient to demonstrate that All American had purposefully availed itself of the forum.

A Corp. filed this timely appeal, challenging only the district court's conclusion as to the exercise of specific jurisdiction.

II. STANDARD OF REVIEW

We review de novo the district court's decision to dismiss for lack of personal jurisdiction. Phillips v. Prairie Eye Ctr., 530 F.3d 22, 26 (1st Cir.2008).

A Corp. bears the burden to establish that specific jurisdiction exists over All American. Id. Below, the district court employed the prima facie method to determine whether A Corp. had met its burden.⁵ Under this standard, "the inquiry is whether [A Corp.] has proffered evidence which, if credited, is sufficient to support findings of all facts essential to personal jurisdiction." Id. at 26. It is not enough for A Corp. to "rely on unsupported allegations in [its] pleadings." Platten v. HG Bermuda Exempted Ltd., 437 F.3d 118, 134 (1st Cir.2006) (quoting Boit v. Gar–Tec Prods., Inc., 967 F.2d 671, 675 (1st Cir.1992) ). Rather, A Corp. must put forward "evidence of specific facts" to demonstrate that jurisdiction exists. Id. (quoting Foster–Miller, Inc. v. Babcock & Wilcox Can., 46 F.3d 138, 145 (1st Cir.1995) ).

Reviewing a decision made under the prima facie standard, we must accept A Corp.'s properly documented evidentiary proffers as true and construe them in the light most favorable to A Corp.'s jurisdictional claim. Phillips, 530 F.3d at 26 (citing Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 51 (1st Cir.2002) ). But we will also consider facts offered by All American, to the extent that they are not disputed. Daynard, 290 F.3d at 51.

III. JURISDICTIONAL ANALYSIS

To establish personal jurisdiction over All American, A Corp. must meet the requirements of both the Massachusetts long-arm statute and the due process clause of the Fourteenth Amendment. Daynard, 290 F.3d at 52.

A Corp. asserts specific jurisdiction under Mass. Gen. Laws ch. 223A § 3(d), which extends personal jurisdiction to persons "causing tortious injury in this commonwealth by an act or omission outside this commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this commonwealth." Id. This Court previously

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has interpreted the Commonwealth's long-arm statute as coextensive with the outer limits of the Constitution. See Daynard, 290 F.3d at 52 (citing ‘ Automatic’ Sprinkler Corp. of Am. v. Seneca Foods Corp., 361 Mass. 441, 280 N.E.2d 423, 424 (1972) ). But in recent cases, we have suggested that the Commonwealth's long-arm statute may impose limits on the exercise of personal jurisdiction "more restrictive" than those required by the Constitution. See Copia Commc'ns, LLC v. AMResorts, L.P., No. 15–1330, 812 F.3d 1, 3–4, 2016 WL 147425, at *2 (1st Cir. Jan. 13, 2016) ; Cossart v. United Excel Corp., 804 F.3d 13, 18 (1st Cir.2015) (citing Good Hope Indus., Inc. v. Ryder Scott Co., 378 Mass. 1, 389 N.E.2d 76, 80 (1979) ). Having concluded, however, that the due process clause does not permit the exercise of personal jurisdiction over All American in this case, we need not untangle this potential "tension in our precedent here." Copia Commc'ns, LLC, 812 F.3d at 4, 2016 WL 147425, at *2.

The due process clause requires that to subject a nonresident defendant to jurisdiction within a state the defendant must "have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play...