     Case: 17-20487      Document: 00514511551         Page: 1    Date Filed: 06/13/2018




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

                                      No. 17-20487                          FILED
                                                                        June 13, 2018
                                                                       Lyle W. Cayce
GREATFENCE.COM, INCORPORATED,                                               Clerk

              Plaintiff - Appellant

v.

DARRICK R. BAILEY; A GREAT FENCE, L.L.C.,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:17-CV-1096


Before CLEMENT, HIGGINSON, and HO, Circuit Judges.
PER CURIAM:*
       GreatFence, a Texas-based supplier of fencing and gate products, sued
Darrick R. Bailey and his company A Great Fence (collectively, AGF), a Florida
fencing company, in the Southern District of Texas alleging trademark
infringement and unfair competition. In particular, GreatFence complains
that two of the website domain names registered and used by AGF infringe on
GreatFence’s trademark.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 17-20487
      The district court dismissed the case for want of personal jurisdiction.
AGF has never solicited business nor provided services in Texas. It has no
physical presence in Texas—no offices, no telephone listing, no employees, and
no agents there.     And Bailey has only been to Texas once, for a layover.
GreatFence asks us to reverse based on the fact that the company that hosts
AGF’s allegedly infringing websites is located in Texas. We affirm.
                                        I.
      GreatFence owns the federally registered mark “GreatFence.” AGF is
also in the fencing business, but only provides “services to those located in their
area of service in Florida.” AGF neither solicits business nor provides services
in Texas. And Bailey, its owner, has only been to Texas once, for a layover.
      GreatFence sued AGF, alleging that AGF’s websites—agreatfence.com
and agreatfencestuart.com—infringed GreatFence’s mark.            AGF’s websites
allow a user to input his contact information and request a fence installation
price quote—there is no other interaction between the website user and AGF.
In addition, the websites clearly identify AGF as a fence contractor on Florida’s
eastern coast:    “We provide professional fencing services throughout the
Treasure Coast,” including “Port St. Lucie, Ft. Pierce, Vero Beach & Nearby
Areas.”
      AGF’s websites are its only connection to Texas.            And even that
connection is tenuous:     AGF outsources its website design, maintenance,
repair, and updating to a Florida-based IT company, which performs its
services in Florida.   The Florida-based IT company utilized HostGator, a
business based in Houston, Texas, to host AGF’s websites.
                                        II.
      We review the district court’s personal jurisdiction determination de
novo. Mink v. AAAA Dev. LLC, 190 F.3d 333, 335 (5th Cir. 1999). GreatFence,


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                                  No. 17-20487
as the plaintiff, bears the burden of establishing personal jurisdiction over AGF
and Bailey. Id.
      The crux of GreatFence’s argument is that the district court had specific
personal jurisdiction over AGF because AGF maintained a relationship with
HostGator, a Texas web-hosting company. We reject this argument. At least
one circuit has held that “the level of contact created by the connection between
an out-of-state defendant and a web server located within a forum” is “de
minimis.” Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d
390, 402 (4th Cir. 2003). According to the Fourth Circuit, it “is unreasonable
to expect that, merely by utilizing servers owned by a [Texas]-based company,
[AGF] should have foreseen that it could be haled into a [Texas] court and held
to account for the contents of its website.” Id. This is particularly true where,
as here, the “administration, maintenance, and upkeep of [AGF’s] website had
occurred in a state other than [Texas].” Christian Sci. Bd. of Dirs. of First
Church of Christ, Scientist v. Nolan, 259 F.3d 209, 217 n.9 (4th Cir. 2001)
(internal quotation marks omitted).
      We need not decide today whether a web server’s location alone never
suffices to establish personal jurisdiction. We simply hold that it cannot do so
here, where there is no allegation, argument, or evidence that the defendants
played any role in selecting the server’s location—or that its location was
selected with the purpose or intent of facilitating the defendants’ business in
the forum. See Pervasive Software Inc. v. Lexware GmbH & Co. KG, 688 F.3d
214, 222–23 (5th Cir. 2012) (“it is now well settled that an individual’s contract
with an out-of-state party”—like HostGator—“alone cannot automatically
establish sufficient minimum contacts in the other party’s home forum”)
(brackets and internal quotation marks omitted).              In short, in the
circumstances of this case, we agree with the Fourth Circuit that AGF’s use of


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                                 No. 17-20487
HostGator “as a web host does not ground specific jurisdiction over [AGF] in
[Texas].” Carefirst, 334 F.3d at 402.
      GreatFence’s argument that personal jurisdiction may be exercised
based on the “nature and quality of commercial activity that [AGF] conducts
over the Internet” also must be rejected. Mink, 190 F.3d at 336. To determine
whether personal jurisdiction can be exercised over a defendant based on its
Internet presence, our circuit follows the approach developed in Zippo Mfg. Co.
v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa.1997). See Mink, 190 F.3d
at 336. Under Zippo, “the exercise of jurisdiction is determined by the level of
interactivity and commercial nature of the exchange of information that occurs
on the Website.” Id. (quoting Zippo, 952 F. Supp. at 1124).
      Here, as in Mink, there is “no evidence that [AGF] conducted business
over the Internet by engaging in business transactions with [Texas] residents
or by entering into contracts over the Internet.” Id. at 337. At most, AGF’s
websites allow a user to input his contact information and request a price quote
for a fence installation—there is no other interaction between AGF and
someone who visits its websites. See id. (“While the website provides users
with a printable mail-in order form, AAAA’s toll-free telephone number, a
mailing address and an electronic mail (‘e-mail’) address, orders are not taken
through AAAA’s website. This does not classify the website as anything more
than passive advertisement which is not grounds for the exercise of personal
jurisdiction.”). Even if offering to provide a quote were enough to render AGF’s
websites semi-interactive under Zippo, AGF otherwise lacks the “nature and
quality of online and offline contacts [with Texas] to demonstrate the requisite
purposeful conduct that establishes personal jurisdiction.” Pervasive Software,
688 F.3d at 227 n.7.
      In sum, AGF’s “actions toward Texas and its affiliation with that state
were not so deliberate and substantial that [AGF] should have reasonably
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anticipated being haled into court in Texas.” Id. at 228. See also Mink, 190
F.3d at 337 (“[T]he presence of an electronic mail access, a printable order
form, and a toll-free phone number on a website, without more, is insufficient
to establish personal jurisdiction. Absent a defendant doing business over the
Internet or sufficient interactivity with residents of the forum state, we cannot
conclude that personal jurisdiction is appropriate.”). 1
       Accordingly, the district court’s decision to dismiss Defendants Darrick
R. Bailey and A Great Fence, L.L.C. for lack of personal jurisdiction is
AFFIRMED.




       1Because the district court’s ruling was correct as to AGF, so too was its dismissal of
Bailey. On appeal, GreatFence does not contend that that jurisdiction over Bailey would be
proper absent jurisdiction over AGF.
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