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Shippitsa Limited v. Slack

United States District Court, N.D. Texas, Dallas Division

June 5, 2019

ANDREW JON SLACK, et al., Defendants.



         In this 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.


         In 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 visitors' web browsers-including web browsers located in this district[1]-to connect automatically to a different website. See Id. at *4.

         The 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.[2] Applying this analysis, the court concluded that is not sufficiently commercial or interactive to support personal jurisdiction:

All 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 is fleeting, at best. It involves no viewing of advertising or exchanging of information on the webpage itself that is commercial in nature.

Id. The court expressly held that “the fact that the 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.

         Shippitsa now moves for reconsideration, contending that the court's focus on the visible, rather than the invisible, aspects of was a manifest error of fact.


         “Motions 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 marks omitted).


         In its motion for reconsideration, Shippitsa re-urges its argument that 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.


         The 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).

         The fundamental test for whether a court has personal jurisdiction over a defendant is well-settled.

         “When 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 ...

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