U.S. Court of Appeals for the Ninth Circuit, 2002

Sebastian International, Inc. v. Russolillo

U.S. Court of Appeals for the Ninth Circuit · Decided August 6, 2002 · Graber

44 F. App'x 173

Opinion of the Court

MEMORANDUM

We review de novo1 the dismissal under Fed.R.Civ.P. 12(b)(2) of Tosvar Aerosol and its owner, Paolo Gioia, from Sebastian International’s lawsuit.

Where, as here, the district court receives only written submissions, the plaintiff need only make a prima facie case showing of jurisdiction to avoid the defendant’s motion to dismiss. In determining whether [plaintiff] has met this burden, uncontroverted allegations in [plaintiffs] complaint must be taken as true, and conflicts between the facts eon-tained in the parties’ affidavits must be resolved in [plaintiffs] favor.2

We apply this standard on appeal.

Sebastian did not meet its burden3 of making “a prima facie showing of facts supporting jurisdiction.”4 Sebastian’s allegations and declarations do not reasonably support the inference that Tosvar knew or reasonably should have known the counterfeits would be shipped to California. Tosvar filled cans in Italy manufactured by an Italian company, for an Italian company, and delivered the filled cans to an Italian transportation company for transport to an Italian port. The cryptic reference to “Miami” on the Italian transportation company’s (not Sebastian’s) shipping documents and to “the Americans” in the fax, the still more cryptic BATF license number on the cans, and the presence of Sebastian’s California address and a “Made in the U.S.A.” label on the cans do not adequately support the inference of knowledge that the cans would be sold into the California market. Because Sebastian has not established, even under a permissive standard, that Tosvar knew that the cans were shipped to the United States, it has not made a prima facie showing that Tosvars’ acts were “expressly aimed at the forum.”5

We reject Sebastian’s remaining contention, that the district court should have ordered additional discovery before dismissing Tosvar, because Sebastian has *176not made “the clearest showing that denial of discovery resulted] in actual and substantial prejudice to the complaining litigant.” 6

Sebastian’s appeal against Nortex, case number 01-55484, is severed and STAYED. As to Sebastian’s appeal against Tosvar Aerosol and Gioia, case number 01-55488, the district court is AFFIRMED.

. Glencore Grain Rotterdam B.V. v. Shivnath Rai Hamarain Co., 284 F.3d 1114, 1119 (9th Cir. 2002); Rio Properties, Inc. v. Rio International Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002).

. Rio Properties at 1019.

. Id. at 1019.

. Glencore Grain, 284 F.3d at 1119; Rio Properties, 284 F.3d at 1019.

. Rio Properties at 1019-20 (citing Calder v. Jones, 465 U.S. 783, 788-89, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984)).

. See Butcher's Union Local No. 498, United Food & Commercial Workers v. SDC Investment, Inc., 788 F.2d 535, 540 (9th Cir. 1986) (internal quotations and citations omitted).

Concurring in Part

GRABER, Circuit Judge,

concurring in part and dissenting in part:

I concur, of course, in the stay pertaining to Nortex while bankruptcy proceedings áre pending, and I agree with the majority on the discovery ruling. However, I respectfully dissent with respect to personal jurisdiction over Tosvar.

Taking all inferences in the plaintiffs favor, as we must, Tosvar knew it was part of a counterfeiting conspiracy whose actions necessarily had a significant effect in California.

1. A reasonable inference from the FAX from Dollars Spray is that the counterfeit products were headed for the United States: “ ‘The Americans’ will leave on Thursday, 30 September 1999.”

Sebastian concedes that its appeal against Nortex Drug Distributors is stayed by that defendant’s bankruptcy filing in the Northern District of Texas.7 Although Nortex has not informed this Court of its bankruptcy filing, the “stay is self-executing, effective upon the filing of the bankruptcy petition.”8

2. Counterfeit cans were marked, falsely, “Made in the USA” and marked with Sebastian’s Woodland Hills, California, address.

3. The products intentionally were shipped to and distributed throughout the United States, including California, and Tosvar knew that Sebastian’s headquarters was in California. Tosvar thus knew that trademark infringement had its greatest effect in California.

4. The cans showed a California license number and a California manufacturing plant number, which plainly were false, because Tosvar did not operate under a California license and did not have a manufacturing plant in California.

Accordingly, I would hold that the district court had jurisdiction, and I would reverse as to Tosvar for further proceedings.

. See 11 U.S.C. 362(a); Parker v. Bain, 68 F.3d 1131, 1136 (9th Cir. 1995) ("This Court ... has concluded that the automatic stay can operate to prevent an appeal by a debtor when the action or proceeding below was against the debtor.”); Ingersoll-Rand Financial Corp. v. Miller Mining Co., 817 F.2d 1424, 1426 (9th Cir. 1987).

. In re Pettit, 217 F.3d 1072, 1077 (9th Cir. 2000).

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