                                                                 NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ___________

                                   No. 13-3818
                                   ___________

                        RICHARD C. ACKOUREY, JR.,
            d/b/a GRAPHIC STYLES/STYLES INTERNATIONAL LLC,
                                            Appellant

                                         v.

      SONELLAS CUSTOM TAILORS, a/k/a HONG KONG TAILORS (USA);
            DILEEP KUMAR DASWANI, a/k/a KEN DASWANI

                           _______________________

                        On Appeal from the District Court
                      for the Eastern District of Pennsylvania
                           D.C. Civil No. 2-12-cv-06729
                             (Honorable Jan E. DuBois)
                                 ______________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  June 05, 2014

             Before: HARDIMAN, SCIRICA, and ROTH, Circuit Judges

                               (Filed: July 29, 2014)

                               _________________

                           OPINION OF THE COURT
                              _________________


SCIRICA, Circuit Judge.




                                         1
       Richard Ackourey, Jr. appeals an order of the District Court dismissing his

copyright infringement suit against Sonella’s Custom Tailors and Dileep Kumar Daswani

for lack of personal jurisdiction under Fed. R. Civ. P. 12(b)(2). Because there was an

insufficient basis for personal jurisdiction, we will affirm.1

                                              I.

       Since we write solely for the benefit of the parties, we recount only those facts

relevant to the issues before us. Plaintiff Richard Ackourey, Jr. is a Pennsylvania resident

who owns copyrights in two fashion stylebooks published in 2005 and 2006. The

stylebooks contain images of various fashion clothing designs. The stylebook images are

subject to re-use and redistribution in accordance with various licensing arrangements.

       Defendant Dileep Kumar Daswani is an Oregon resident and the owner of

Sonella’s Custom Tailors (“SCT”), an apparel business operated out of Daswani’s home

in Beaverton, Oregon. All of SCT’s business is conducted in person at consultation

appointments. SCT’s website allows prospective customers to email requests for

consultation appointments and advertises a travel schedule that lists available

appointments in Oregon and various locations throughout the United States. The website

does not allow customers to place orders, make payments, or engage in any business

transaction. SCT appointments consist of showing fabric samples to customers, providing

styling advice, and measuring customers for custom sizing. SCT sends any orders made


1
 The District Court had subject matter jurisdiction under 28 U.S.C. § 1331. We have
appellate jurisdiction under 28 U.S.C. § 1291.

                                              2
at these appointments to an independent supplier in Hong Kong. The Hong Kong supplier

manufactures the custom clothing and ships the order directly to the customer.

       In March 2005, Daswani ordered a copy of Ackourey’s 2005 stylebook. The book

was shipped from Pennsylvania to Daswani’s Oregon address. Thereafter, SCT’s website

allegedly displayed Ackourey’s copyrighted images without authorization. On December

3, 2012, Ackourey filed a copyright infringement suit against SCT and Daswani in the

United States District Court for the Eastern District of Pennsylvania.

       On April 29, 2013, Defendants filed a motion to dismiss for lack of personal

jurisdiction under Rule 12(b)(2). In response, Ackourey argued Defendants established

minimum contacts with the Commonwealth sufficient to support specific personal

jurisdiction by directly targeting potential customers in Pennsylvania and by purchasing

the 2005 stylebook. Ackourey did not request jurisdictional discovery, but submitted

exhibits of screenshots of SCT’s website listing available appointments in Pennsylvania.

Daswani averred that he has no customer base in Pennsylvania and has never travelled to

Pennsylvania for business purposes. Daswani conceded he may have on rare occasion

fulfilled an order for a Pennsylvania customer referred to him by a cooperating tailor.

       The District Court issued an opinion and order on August 21, 2013, granting

Defendants’ motion to dismiss. The court found Defendants’ “passive website and related

non-Internet contacts are insufficient to support the exercise of specific jurisdiction over

the defendants.” App. 11. Ackourey filed a timely notice of appeal.

                                             II.

       We review a district court’s decision concerning personal jurisdiction de novo, but

                                              3
review its factual findings under a clearly erroneous standard. Control Screening LLC v.

Technological Application & Prod. Co., 687 F.3d 163, 167 (3d Cir. 2012). Following a

defendant’s Rule 12(b)(2) motion, plaintiff bears the burden of proving that jurisdiction

exists by a preponderance of the evidence. Imo Indus., Inc. v. Kiekert AG, 155 F.3d 254,

257 (3d Cir. 1998).

                                            III.

       Ackourey argues on appeal that the District Court erred in granting Defendants’

Rule 12(b)(2) motion because Defendants established minimum contacts with

Pennsylvania sufficient to support the exercise of specific personal jurisdiction.2

       Fed. R. Civ. P. 4(e) authorizes federal courts to exercise “personal jurisdiction

over non-resident defendants to the extent permissible under the law of the state where

the district court sits.” Pennzoil Prods. Co. v. Colelli & Assocs., Inc., 149 F.3d 197, 200

(3d Cir. 1998). Pennsylvania’s long-arm statute permits courts to exercise personal

jurisdiction over nonresident defendants “to the fullest extent allowed under the

Constitution of the United States” and “based on the most minimum contact with this

Commonwealth allowed under the Constitution.” 42 Pa. Cons. Stat. Ann. § 5322(b).

       Constitutionally, federal courts may exercise specific personal jurisdiction over

2
  Ackourey also raises—for the first time on appeal—two additional arguments. First, he
contends Defendants’ targeted advertising, use of Pennsylvania locations, and efforts to
solicit Pennsylvania businesses are sufficient to support the exercise of general personal
jurisdiction. Because Ackourey failed to raise this argument before the District Court, we
decline to address it here. See Srein v. Frankford Trust Co., 323 F.3d 214, 224 n.8 (3d
Cir. 2003) (“We have consistently held that we will not consider issues that are raised for
the first time on appeal absent compelling reasons.” (internal quotation marks and
citation omitted)). Second, Ackourey argues for jurisdiction based on the “effects test” of
Calder v. Jones, 465 U.S. 783 (1984). Again, because Ackourey failed to raise this
argument before the District Court, we decline to address it here.
                                              4
nonresident defendants only when the defendants have purposefully directed activities at

and established “minimum contacts with [the forum] 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) (internal quotation marks and citation omitted).

Moreover, the litigation must ‘“arise out of or relate to’ those activities.” Burger King

Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (quoting Helicopteros Nacionales de

Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984)). A defendant’s contacts with the forum

state must be “such that he should reasonably anticipate being haled into court there.”

World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). Random,

fortuitous, or attenuated contacts are not sufficient to support jurisdiction. Id. at 295; see

Burger King, 471 U.S. at 475.

       Ascertaining specific personal jurisdiction in claims arising from Internet

commerce requires courts to determine whether a defendant established minimum

contacts through cyberspace. Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119,

1123-24 (W.D. Pa. 1997). “[Zippo] has become a seminal authority regarding personal

jurisdiction based upon the operation of an Internet web site.” Toys “R” Us, Inc. v. Step

Two, S.A., 318 F.3d 446, 452 (3d Cir. 2003). When analyzing Internet commerce cases,

“the likelihood that personal jurisdiction can be constitutionally exercised is directly

proportionate to the nature and quality of commercial activity that an entity conducts over

the Internet.” Zippo, 952 F. Supp. at 1124. This sliding scale ranges from situations

where a defendant uses an interactive commercial website to actively transact business

with residents of the forum state (personal jurisdiction exists) to situations where a

                                               5
passive website merely provides information that is accessible to users in the forum state

(personal jurisdiction does not exist). Id. To determine whether personal jurisdiction

exists for situations between these extremes, we examine “the level of interactivity and

commercial nature of the exchange of information that occurs on the Web site.” Id; see

Toys “R” Us, 318 F.3d at 452. In Zippo, the court found personal jurisdiction existed

where the defendant “[did] more than advertise on the Internet in Pennsylvania” by using

its website to “contract[] with approximately 3,000 individuals and seven Internet access

providers in Pennsylvania.” Zippo, 952 F. Supp. at 1126.

       Ackourey alleges Defendants wrongfully displayed his copyrighted images on

SCT’s website and contends Defendants established minimum contacts with the

Commonwealth by (1) using the website to target potential customers in Pennsylvania,

(2) selling custom-tailored apparel through appointments in Pennsylvania, and

(3) reaching into Pennsylvania to purchase a copy of the 2005 stylebook. Following

Defendant’s Rule 12(b)(2) motion, Ackourey bore the burden of proving that jurisdiction

exists by a preponderance of the evidence. See Imo Indus., 155 F.3d at 257. Since specific

jurisdiction requires a plaintiff’s claims to arise out of or relate to a defendant’s contacts

with the forum, Burger King, 471 U.S. at 472, we must determine whether Ackourey has

demonstrated that Defendants established constitutionally sufficient minimum contacts

with Pennsylvania via their website. We find he has not.

       Here, the “level of interactivity and commercial nature” of SCT’s website is

minimal, Zippo, 952 F. Supp. at 1124, and does little “more than advertise on the Internet

in Pennsylvania,” id. at 1126. The website lists a travel schedule and only allows

                                               6
potential customers to email requests for appointments. It does not permit customers to

place orders, make payments, or engage in any business transactions. This low degree of

commercial activity renders Defendants’ website essentially passive. See id. at 1124 (“A

passive Web site that does little more than make information available to those who are

interested in it is not grounds for the exercise [of] personal jurisdiction.”).

       Furthermore, even if scheduling appointments alone was sufficiently interactive

and commercial under Zippo, Ackourey has failed to provide any evidence that

Pennsylvania residents used Defendants’ website to schedule appointments. Daswani

averred he has no customer base in Pennsylvania, has never travelled to Pennsylvania for

any purpose related to his tailoring business, and only on rare occasion fulfilled an order

for a Pennsylvania customer referred to him by a cooperating tailor. Ackourey provides

no evidence refuting these claims and did not request jurisdictional discovery. Although

Defendants’ website may have informed potential customers in Pennsylvania of the

possibility of appointments in the Commonwealth, there is no evidence Defendants

received any web-based requests for appointments in Pennsylvania or transacted any

business whatsoever with Pennsylvania residents via its website.

       Finally, we agree with the District Court that Daswani’s purchase of a copy of

Ackourey’s stylebook—which was shipped from Pennsylvania—is an attenuated contact

with the Commonwealth insufficient to support the exercise of personal jurisdiction.

Simply purchasing a book that happens to be shipped from Pennsylvania would not likely

lead one to “reasonably anticipate being haled into court there.” World-Wide Volkswagen,

444 U.S. at 297.

                                               7
       Accordingly, we agree with the District Court that Ackourey has failed to meet his

burden of proving that personal jurisdiction exists.

                                            IV.

       For the foregoing reasons, we will affirm the decision of the District Court

granting Defendants’ Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction.




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