          United States Court of Appeals
                       For the First Circuit


No. 15-1509

                     A CORP. D/B/A ROOTER MAN,

                       Plaintiff, Appellant,

                                 v.

                    ALL AMERICAN PLUMBING, INC.,

                        Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Rya W. Zobel, U.S. District Judge]


                               Before

                   Lynch, Thompson, and Kayatta,
                           Circuit Judges.


     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.


                          January 27, 2016




     
       Judge Lynch heard oral argument in this matter and
participated in the semble, but she did not participate in the
issuance of the panel's opinion. The remaining two panelists issue
this opinion pursuant to 28 U.S.C. § 46(d).
             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


     1  Although A Corp.'s principal place of business is
Massachusetts, it has approximately 426 franchisees operating in
the United States and Canada.

     2 In reviewing the district court's dismissal for lack of
personal jurisdiction, we accept as true the allegations in the


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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



complaint, construing the facts in the light most favorable to the
plaintiff-appellant. Phillips v. Prairie Eye Ctr., 530 F.3d 22,
24 (1st Cir. 2008).

        3   All American also argued, in the alternative, for transfer.



                                            - 3 -
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   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.




     4 On appeal, A Corp. does not pursue its argument that All
American's lawyer's general appearance established personal
jurisdiction over All American.



                                    - 4 -
              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




      5The other two methods are the preponderance method and the
likelihood method.   Phillips, 530 F.3d at 26, n.2.     Unlike the
prima facie method, the preponderance and likelihood methods
generally require an evidentiary hearing. Id. "[T]he least taxing
of these standards from a plaintiff's standpoint, and the one most
commonly employed in the early stages of litigation, is the prima
facie standard." Rodriguez v. Fullerton Tires Corp., 115 F.3d 81,
83-84 (1st Cir. 1997).



                                          - 5 -
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 has

interpreted the Commonwealth's long-arm statute as coextensive

with the outer limits of the Constitution.         See Daynard, 290 F.3d


                                      - 6 -
at 52 (citing 'Automatic' Sprinkler Corp. of Am. v. Seneca Foods

Corp., 280 N.E.2d 423, 424 (Mass. 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, 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.,

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, 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 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)).         For   specific     personal     jurisdiction,        the

constitutional analysis has three distinct prongs: relatedness,

purposeful availment, and reasonableness.             Phillips, 530 F.3d at

27.    As such, we must consider:




                                       - 7 -
            (1) whether the claim 'directly arise[s] out of, or
            relate[s]    to,  the   defendant's   forum   state
            activities;' (2) whether the defendant's in-state
            contacts 'represent a purposeful availment of the
            privilege of conducting activities in the forum
            state,    thereby  invoking    the   benefits   and
            protections of that state's laws and making the
            defendant's involuntary presence before the state's
            courts foreseeable;' and (3) whether the exercise
            of jurisdiction is reasonable.

C.W. Downer & Co. v. Bioriginal Food & Sci. Corp., 771 F.3d 59, 65

(1st Cir. 2014) (alterations in original) (citing Daynard, 290

F.3d at 60-61).        To succeed, A Corp. must demonstrate that all

three prongs are met.6       Id.    Applying this test to the facts of

this case, we conclude that due process does not permit the

exercise of specific jurisdiction over All American.

            A.      Relatedness

            To satisfy the relatedness prong, A Corp. must show a

nexus     between    its   claims   and   All   American's   forum-based

activities.      Adelson v. Hananel, 652 F.3d 75, 81 (1st Cir. 2011).

Although this is a "relaxed standard," it nevertheless requires us

to hone in "on the relationship between the defendant and the

forum."    Id. (citing Hannon v. Beard, 524 F.3d 275, 283 (1st Cir.

2008)).




     6Although the district court appeared to ground its dismissal
on A Corp.'s failure to establish that All American had
purposefully availed itself of the forum, we will address each
prong in brief.


                                      - 8 -
           A Corp. argues that the relatedness prong is satisfied

here   because    All   American      posted     A    Corp.'s   trademark,       or    a

confusingly      similar     mark,    on   its       website    --     available      in

Massachusetts     --    causing      injury    to     the    trademark     owner      in

Massachusetts.       But, in fact, what A Corp.'s allegations more

precisely establish is that any injury occurs in Arizona where A

Corp.'s Arizona franchisee potentially loses business, with the

effect that this out-of-state injury might eventually be felt by

A Corp. in Massachusetts where it resides.                  This type of indirect

effect of out-of-state injury caused by out-of-state conduct is

insufficient to fulfill the relatedness prong. See, e.g., Sawtelle

v. Farrell, 70 F.3d 1381, 1390-91 (1st Cir. 1995) (concluding that

in-forum   effects      of   non-forum     activity,        standing    alone,     were

insufficient to support personal jurisdiction).

           As any potential Massachusetts effects are ancillary to

the alleged out-of-state injury, we conclude that there is an

insufficient nexus in this case between A Corp.'s claims and All

American's one and only forum contact -- the availability of its

website.   Cf. United States v. Swiss Am. Bank, Ltd., 274 F.3d 610,

621 (1st Cir. 2001) (noting that "there can be no requisite nexus

between the contacts and the cause of action if no contacts

exist").    But even if A Corp. had carried its burden to show

relatedness, it would fall at the next hurdle.




                                           - 9 -
            B.     Purposeful Availment

            The purposeful availment inquiry is intended "to assure

that    personal    jurisdiction   is   not     premised    solely    upon     a

defendant's 'random, isolated, or fortuitous' contacts with the

forum state." Sawtelle, 70 F.3d at 1391 (quoting Keeton v. Hustler

Magazine, Inc., 465 U.S. 770, 774 (1984)).            Rather, we focus on

the defendant's intentionality, and the cornerstones of purposeful

availment -- voluntariness and foreseeability.             See id.    Here, A

Corp. argues, in essence, that All American purposefully availed

itself of the forum because its alleged infringement targeted a

Massachusetts company.        But "[t]he proper question is not where

the plaintiff experienced a particular injury or effect but whether

the defendant's conduct connects him to the forum in a meaningful

way."    Walden v. Fiore, 134 S. Ct. 1115, 1125 (2014).

            As we have already noted, A Corp. has offered only one

real    contact    between   Massachusetts    and   All    American   --     All

American's use of a website that is accessible from everywhere in

the world, including Massachusetts.           And although the website is

accessible in Massachusetts, it never mentions Massachusetts and

affords no mechanism for Massachusetts residents to order any goods

or services. The website offers no genuine "interactive" features,

functioning more like a digital billboard, passively advertising

the business and offering an email address, fax and phone number.

Moreover, All American's advertised services are available only in


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Arizona -- since All American is only licensed to provide plumbing

services in that state -- and All American has never performed any

plumbing services or conducted any business in Massachusetts. This

is not enough to show purposeful availment.

          A Corp. heavily relies on a district court's decision in

Venture Tape Corp. v. McGills Glass Warehouse, 292 F. Supp. 2d 230

(D. Mass. 2003), to support its argument that the "something more"

required, see McBee v. Delica Co., 417 F.3d 107, 124 (1st Cir.

2005), to establish personal jurisdiction based on interactive

websites is met in trademark infringement cases when the "target

of the alleged infringement" is a forum company.    Venture Tape,

292 F. Supp. 2d at 233 (relying on Calder v. Jones, 465 U.S. 783,

789–90 (1984), which held that those responsible for an article

about a California-based celebrity "knew that the brunt of that

injury would be felt by respondent in [California]" and therefore

should "reasonably anticipate being haled into court there").   But

the website at issue in Venture Tape allowed users "to place

orders" for "various products," id. at 231, and was, therefore,

actually "interactive," whereas All American's website is not.

          Although this court has not explicitly considered the

issue of purposeful availment in trademark infringement cases such

as Venture Tape, where the only alleged contacts are (1) an

interactive website available in the forum state and (2) that the

allegedly-infringed trademark is owned by a forum company, on the


                                - 11 -
facts of the present case, we can, at a minimum, reject the

broadest reading of Venture Tape, and conclude that, certainly,

the mere availability of a passive website, even one containing an

allegedly-infringed trademark owned by a forum company, cannot,

standing alone,7 subject a defendant to personal jurisdiction in

the forum.        See, e.g., ALS Scan, Inc. v. Dig. Serv. Consultants,

Inc., 293 F.3d 707, 714-15 (4th Cir. 2002) (concluding that an

internet service provider's activities were passive and did not

support the exercise of personal jurisdiction); GTE New Media

Servs. Inc. v. BellSouth Corp., 199 F.3d 1343, 1349 (D.C. Cir.

2000) (concluding that "personal jurisdiction surely cannot be

based solely on the ability of [forum] residents to access the

defendants'        websites,     for    this   does   not    by   itself   show   any

persistent course of conduct by the defendants in the [forum]");

Mink       v.   AAAA   Dev.   LLC,     190   F.3d   333,    337   (5th   Cir.   1999)

(explaining that a similar website was little "more than passive

advertisement which [was] not grounds for the exercise of personal

jurisdiction").               This     is    especially      true   "[g]iven      the




       7
       A Corp. attempts to rely on the fact that the Yellow Pages
once mistakenly linked All American's electronic Yellow Pages
advertisement to A Corp.'s website, and that All American's website
often appears near A Corp.'s website following certain website
browser searches. But the "unilateral activity of . . . a third
person is not an appropriate consideration when determining
whether a defendant has sufficient contacts with a forum State to
justify an assertion of jurisdiction." Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 417 (1984).


                                             - 12 -
'omnipresence' of internet websites."                  Cossaboon v. Maine Med.

Ctr., 600 F.3d 25, 35 (1st Cir. 2010) (quoting McBee, 417 F.3d at

124).        To conclude otherwise, even if restricted to trademark

infringement cases, could improperly erode important limits on

personal jurisdiction over out-of-state defendants.

               C.     Reasonableness

               Finally, to assess reasonableness, we would generally

consider:

               (1) the defendant's burden of appearing [in the
               forum state], (2) the forum state'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.

C.W. Downer & Co., 771 F.3d at 69 (alteration in original) (quoting

Ticketmaster–New York, Inc. v. Alioto, 26 F.3d 201, 209 (1st

Cir.1994)).         But these factors are only "intended to aid the court

in achieving substantial justice," and play a larger role in close

cases.       Adelson v. Hananel, 510 F.3d 43, 51 (1st. Cir. 2007); see

also     Ticketmaster,       26   F.3d   at   210      (explaining   that   "the

reasonableness prong of the due process inquiry evokes a sliding

scale: the weaker the plaintiff's showing on the first two prongs

(relatedness and purposeful availment), the less a defendant need

show    in    terms    of   unreasonableness      to    defeat   jurisdiction").

Accordingly, we need not dwell on these so-called "gestalt" factors


                                         - 13 -
here. Ticketmaster, 26 F.3d at 209. Having concluded that A Corp.

failed to satisfy the first two prongs of the due process inquiry,

its argument for specific jurisdiction fails.

          For the reasons discussed above, the district court's

dismissal for lack of personal jurisdiction is affirmed.   Costs to

the appellee.




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