United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
A. FITZWATER SENIOR JUDGE.
action for trademark infringement and related claims,
plaintiff Shippitsa Limited (“Shippitsa”) moves
the court to reconsider its memorandum opinion and order
dismissing Shippitsa's claims against defendants
MoreNiche Limited (“MoreNiche”) and Andrew Jon
Slack (“Slack”) for lack of personal
jurisdiction. See Shippitsa Ltd. v. Slack, 2019 WL
277613, at *1 (N.D. Tex. Jan. 22, 2019) (Fitzwater, J.)
(“Shippitsa I”). Shippitsa contends
that, in conducting its minimum-contacts analysis, the court
committed a manifest error of fact. Because Shippitsa's
motion raises new arguments that could have been raised
before, and because these arguments lack merit, the court
denies the motion.
August 2018 MoreNiche and Slack moved to dismiss
Shippitsa's claims against them on the ground, inter
alia, that this court lacks personal jurisdiction over
them. The court granted their motions. See Shippitsa
I, 2019 WL 277613, at *1. In doing so, the court
rejected Shippitsa's theory of personal jurisdiction:
that MoreNiche and Slack have the required minimum contacts
with this forum because their webpage-mixi.mn-caused
visitors' web browsers-including web browsers located in
this district-to connect automatically to a different
website. See Id. at *4.
court applied the test from Zippo Manufacturing Co. v.
Zippo Dot Com, Inc., 952 F.Supp. 1119 (W.D. Pa. 1997),
as adopted by the Fifth Circuit in Mink v. AAAA
Development LLC, 190 F.3d 333, 336 (5th Cir. 1999).
See Shippitsa I, 2019 WL 277613, at
*4. Applying this analysis, the
court concluded that mixi.mn is not sufficiently commercial
or interactive to support personal jurisdiction:
All mixi.mn does is provide a small amount of information to
users-information that users can, by default, view for only
five seconds before being redirected to another website,
allegedly operated by [defendant] Wolfson Berg [Limited] or
some other entity, but not by MoreNiche or Slack. The average
visitor's interaction with mixi.mn is fleeting, at best.
It involves no viewing of advertising or exchanging of
information on the mixi.mn webpage itself that is commercial
Id. The court expressly held that “the fact
that the mixi.mn webpage sends digital instructions to a
visitor's computer [does not] render the webpage owner
subject to personal jurisdiction.” Id. at *5.
From its survey of Fifth Circuit Zippo precedent,
the court was aware of no examples in which personal
jurisdiction rested on technical instructions sent to the
user's web browser, as opposed to the user's ability
to interact or to exchange commercial information with the
website. See Id. at *4-5.
now moves for reconsideration, contending that the
court's focus on the visible, rather than the invisible,
aspects of mixi.mn was a manifest error of fact.
for reconsideration have a narrow purpose and are only
appropriate to allow a party to correct manifest errors of
law or fact or to present newly discovered evidence.”
AMS Staff Leasing, NA, Ltd. v. Associated Contract
Truckmen, Inc., 2005 WL 3148284, at *3 (N.D. Tex. Nov.
21, 2005) (Fitzwater, J.) (internal quotation marks omitted);
see Kimberly-Clark Corp. v. Cont'l Cas. Co.,
2006 WL 2468712, at *1 (N.D. Tex. Aug. 25, 2006) (Fitzwater,
J.) (stating standard for motion for reconsideration). The
same standard applies to a Rule 59(e) motion to alter or
amend the judgment. See, e.g., Schwartz v. Int'l
Fed'n of Prof'l & Tech. Eng'rs, 2008 WL
324133, at *1 (N.D. Tex. Jan. 29, 2008) (Fitzwater, C.J.)
(holding that court did not commit manifest error of law or
fact, and denying Rule 59(e) motion), aff'd, 306
Fed.Appx. 168, 2009 WL 62236 (5th Cir. Jan. 12, 2009).
“Such motions are not the proper vehicle for rehashing
old arguments or advancing theories of the case that could
have been presented earlier.” AMS Staff
Leasing, 2005 WL 3148284, at *3 (internal quotation
motion for reconsideration, Shippitsa re-urges its argument
that mixi.mn can support personal jurisdiction under the
Zippo test. Shippitsa also cites, for the first
time, Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208,
213 (5th Cir. 1999), and folds the principles from that case
into the present minimum-contacts analysis.
court begins with a more thorough, and hopefully more
thoughtful, discussion of the applicable law-a discussion
necessitated by the difficulties in applying traditional
personal-jurisdiction concepts to Internet contacts. See,
e.g., Zoe Niesel, #PersonalJurisdiction: A New Age
of Internet Contacts, 94 Ind. L.J. 103, 116-38 (2019)
(highlighting limitations of Zippo test for
measuring online contacts).
fundamental test for whether a court has personal
jurisdiction over a defendant is well-settled.
a nonresident defendant presents a motion to dismiss for lack
of personal jurisdiction, the plaintiff bears the burden of
establishing the district court's jurisdiction over the
nonresident.” Stuart v. Spademan, 772 F.2d
1185, 1192 (5th Cir. 1985) (citing Thompson v. Chrysler
Motors Corp., 755 F.2d 1162, 1165 (5th Cir. 1985);
D.J. Invs., Inc. v. Metzeler Motorcycle Tire Agent Gregg,
Inc., 754 F.2d 542, 545 (5th Cir. 1985)). The
determination whether a federal district court has in
personam jurisdiction over a nonresident defendant is
bipartite. The court first decides whether the long-arm
statute of the state in which it sits confers personal
jurisdiction over the defendant. If it does, the court then
resolves whether the exercise of jurisdiction is consistent
with due process under the United States Constitution.
See Mink, 190 F.3d at 335. Because the Texas
long-arm statute extends to the limits of due ...