           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         February 9, 2009

                                       No. 07-30936                   Charles R. Fulbruge III
                                                                              Clerk

LINDA JACKSON; BRIAN JACKSON

                                                  Plaintiffs-Appellants
v.

FRATELLI TANFOGLIO DI TANFOGLIO BORTOLO & C.S.N.C. formerly
known as, Pacific Capital Partners of Oregon Inc

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No. 2:95-CV-2389


Before REAVLEY, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
       The issue in this appeal is whether a Louisiana federal district court has
personal jurisdiction over an Italian firearms manufacturer that has a default
judgment of over $11 million pending against it. The district court held that
there was no personal jurisdiction—specific or general. The plaintiffs have
appealed, contending that the district court ignored evidence that would have




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                   No. 07-30936

demonstrated jurisdiction. For the reasons stated below, we VACATE and REMAND.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      On May 28, 1992, Arnold Jackson (“Jackson”) was injured when he
dropped a Titan .25 caliber semi-automatic pistol (the “pistol”), causing it to
discharge unexpectedly. Jackson was rendered a quadriplegic and eventually
died from his injuries. Plaintiffs-Appellants Linda Jackson, Jackson’s wife, and
their son Brian (collectively, “Plaintiffs”) filed suit on May 25, 1993, in Louisiana
state court. Included as defendants were several American companies and three
Italian companies: Fratelli Tanfoglio, S.n.c. (“Fratelli Tanfoglio”), Giuseppe
Tanfoglio, S.p.a., and Tanfoglio Giuseppe, S.r.l. (collectively, the “Tanfoglio
entities”). The American defendants removed the case to federal district court,
where Plaintiffs obtained a default judgment of approximately $11 million
against the Tanfoglio entities on December 18, 1998. In entering the judgment,
the district court ruled that the Tanfoglio entities manufactured the pistol which
contained a product defect, namely, that the firing pin was too long, which made
it discharge too easily. The district court entered a final judgment against the
Tanfoglio entities and closed the case.
      Almost two years later, on October 27, 2000, Fratelli Tanfoglio filed a
motion to vacate the default judgment pursuant to Federal Rule of Civil
Procedure 60(b)(4), which provides that a court may relieve a party from a final
judgment if the judgment is void. Fratelli Tanfoglio argued that the judgment
was void because the district court lacked personal jurisdiction over it. In
support of its claim, Fratelli Tanfoglio asserted that it did not make the pistol
that injured Jackson, and that there was nothing connecting Fratelli Tanfoglio
with Louisiana. On May 25, 2001, the district court denied the motion, holding
that the jurisdictional facts—that Fratelli Tanfoglio had made the pistol—had
been conclusively established by the default judgment.



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      On appeal, this court reversed and remanded the case for further
adversarial proceedings on the issue of personal jurisdiction. See Jackson v. FIE
Corp., 302 F.3d 515, 531 (5th Cir. 2002) (Tanfoglio I). Upon remand, the parties
engaged in over four years of highly contentious discovery. Plaintiffs argued
that the court had specific personal jurisdiction because the Tanfoglio entities
manufactured the pistol or the firing pin, and that there was general jurisdiction
arising from the Tanfoglio entities’ continuous and systematic contacts with the
forum state. In its order, dated April 30, 2007, the district court found that
there was insufficient evidence to establish that (1) Fratelli Tanfoglio made the
defective firing pin, (2) the actions of other Tanfoglio entities should be imputed
to Fratelli Tanfoglio, and (3) Fratelli Tanfoglio was subject to general
jurisdiction in Louisiana. Jackson v. F.I.E. Corp., No. 95-2389, 2007 WL
1259216, at *3–7 (E.D. La. Apr. 30, 2007) (Tanfoglio II). Having found that
there was “insufficient evidence in the record to support [P]laintiffs’ contention”
that the court had jurisdiction over Plaintiffs’ claims, id. at * 6, the district court
then entered a judgment in favor of Fratelli Tanfoglio, dismissing Plaintiffs’
claims against Fratelli Tanfoglio without prejudice, id. at *7. The district court
later denied Plaintiffs’ motion to reconsider, and Plaintiffs timely appealed.
                                II. DISCUSSION
      “[W]hether in personam jurisdiction can be exercised over a defendant is
a question of law and subject to de novo review.” Dickson Marine Inc. v.
Panalpina, Inc., 179 F.3d 331, 335 (5th Cir. 1999); see also Tanfoglio I, 302 F.3d
at 521 (stating that the de novo standard applies to challenges to personal
jurisdiction brought under Rule 60(b)(4)).
      In Tanfoglio I, we stated that Fratelli Tanfoglio bore the burden of
demonstrating the absence of personal jurisdiction. 302 F.3d at 520–21. We
noted that placing the burden of proof on Fratelli Tanfoglio was not necessarily
the law of the circuit, but it was the law of the case, as Fratelli Tanfoglio had not

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challenged that issue in its initial appeal. Id. at 521 & n.6 (noting that the issue
of which party bears the burden of proof in a Rule 60(b)(4) challenge to personal
jurisdiction has split circuit and district courts). Therefore, Fratelli Tanfoglio
bore the burden of affirmatively proving that the court did not have either
specific or general jurisdiction.
      The district court, however, frequently referenced Plaintiffs’ inability to
produce evidence in support of the court’s jurisdiction over Plaintiffs’ claims. For
instance, the district court concluded that “there is insufficient evidence in the
record to support [P]laintiffs’ contention” that their cause of action arises from
Fratelli Tanfoglio’s forum-related contacts, Tanfoglio II, 2007 WL 1259216, at
*6, and “there is no evidence in the record” demonstrating continuous or
systematic contacts with Louisiana, id. at *7. Thus, the district court found in
favor of Fratelli Tanfoglio after concluding that Plaintiffs had not presented
sufficient evidence to establish the court’s jurisdiction.
      The proper inquiry, however, was not whether there was sufficient
evidence of the court’s jurisdiction, but rather whether there was sufficient
evidence to prove that Fratelli Tanfoglio was not subject to the court’s
jurisdiction. For example, Fratelli Tanfoglio could have proved that the court
lacked specific jurisdiction by providing sufficient evidence that it did not
manufacture the pistol—such as by proving who did manufacture the pistol.
Fratelli Tanfoglio could have shown that the court did not have general
jurisdiction over Plaintiffs’ claims by providing evidence that its contacts with
the forum were not continuous and systematic. Regardless of how Fratelli
Tanfoglio was to meet its burden, the important point for the present appeal is
that it was Fratelli Tanfoglio’s burden. The district court erred in failing to hold
Fratelli Tanfoglio to its burden and holding the lack of evidence against
Plaintiffs.



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                           III. CONCLUSION
      Because the district court improperly placed the burden of proof on
Plaintiffs, we VACATE and REMAND for reconsideration in light of the proper
burden of proof.
      VACATED and REMANDED.




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