                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              APR 30 2014

                                                                           MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

BELLAGIO, LLC, a Nevada limited                  No. 12-16235
liability company, and MIRAGE
RESORTS, INC., a Nevada corporation,             D.C. No. 2:11-cv-01975-PMP-
                                                 PAL
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM*

BELLAGIO SHOES, INC., a California
corporation; et al.,

              Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                   Philip M. Pro, Senior District Judge, Presiding

                       Argued and Submitted April 10, 2014
                            San Francisco, California

Before: NOONAN, NGUYEN, and WATFORD, Circuit Judges.

       Bellagio, LLC and its parent company, Mirage Resorts, Inc. (together,

“Bellagio”), appeal the district court’s dismissal of their trademark infringement

suit against Bellagio Shoes, Inc., Bertini Shoes, Inc. (together, “Bellagio Shoes”),


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
and individual defendants Shlomo Ronen (“Ronen”) and Itzhak Ben Shoshan

(“Shoshan”) for lack of personal jurisdiction. Without allowing the parties to

engage in jurisdictional discovery or holding an evidentiary hearing, the district

court dismissed the complaint with leave to refile in the United States District

Court for the Central District of California, holding that the defendants had not

“purposefully availed themselves of the privilege of conducting activities in

Nevada” to warrant the exercise of specific personal jurisdiction.

      We have jurisdiction under 28 U.S.C. § 1291 and review the district court’s

decision de novo. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800

(9th Cir. 2004).

      1. The district court should have applied the “purposeful direction,” rather

than “purposeful availment,” variant of the minimum contacts test. See Wash. Shoe

Co. v. A-Z Sporting Goods, Inc., 704 F.3d 668, 672-73 (9th Cir. 2012). Rather than

applying this test ourselves, we remand the case for the district court to order

jurisdictional discovery and potentially hold an evidentiary hearing, since many

“pertinent facts bearing on the question of jurisdiction are controverted” and “a

more satisfactory showing of the facts is necessary.” Boschetto v. Hansing, 539

F.3d 1011, 1020 (9th Cir. 2008) (quoting Data Disc, Inc. v. Sys. Tech. Assoc., Inc.,

557 F.2d 1280, 1285 n.1 (9th Cir. 1977)) (internal quotation marks omitted).


                                          2
Among the many relevant, contested issues, the district court should consider the

level of control retained by Ronen (if any) over Bellagio Shoes, the existence of

any Internet sales by Bellagio Shoes to customers in Nevada, and the credibility of

Bellagio’s key affiant, Damian Pryor. To this end, the district court may wish to

hold an evidentiary hearing.

      2. Although further jurisdictional discovery is warranted as to Bellagio

Shoes and Ronen, Shoshan should be dismissed as a defendant. His limited actions

as the webmaster of <b-shoes.com> and <bertini-shoes.com>, and as the owner of

the <bertini-shoes.com> domain name, did not form sufficient contacts with

Nevada to authorize the district court’s exercise of jurisdiction over him. See

Walden v. Fiore, 134 S. Ct. 1115, 1122-24 (2014).

      AFFIRMED IN PART; REMANDED.

      Each party shall bear its own costs.




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