Petition for Writ of Certiorari — Gurbir S. Grewal, Attorney General of New Jersey, Petitioner v. Defense Distributed, et al.
Supreme Court briefJan 19, 2021
Ask Donna
What actually matters in this document.
Text
No. __-____
In the Supreme Court of the United States
GURBIR S. GREWAL, ATTORNEY GENERAL OF NEW
JERSEY, IN HIS OFFICIAL CAPACITY,
Petitioner,
v.
DEFENSE DISTRIBUTED, SECOND AMENDMENT
FOUNDATION, INC.,
Respondents.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
GURBIR S. GREWAL
Attorney General
State of New Jersey
JEREMY M. FEIGENBAUM*
State Solicitor
MAYUR P. SAXENA
Assistant Attorney General
MELISSA MEDOWAY
TIM SHEEHAN
Deputy Attorneys General
Office of Attorney General
25 Market Street
P.O. Box 112
Trenton, NJ 08625
(609) 292-4925
Jeremy.Feigenbaum@njoag.gov
*Counsel of Record
(i)
QUESTION PRESENTED
A court may exercise specific personal jurisdiction
over a nonresident defendant only where the defendant “purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985). In
Walden v. Fiore, 571 U.S. 277 (2014), this Court held
that personal jurisdiction thus cannot be based solely
on the fact that the plaintiff experienced injury in the
forum State. Rather, defendant’s own conduct must
connect him to the forum State itself.
The question presented is:
Whether a nonresident state official subjects itself
to personal jurisdiction in another forum State when
it sends a single cease-and-desist letter to a single resident in that State.
(ii)
STATEMENT OF RELATED PROCEEDINGS
The proceedings related to this petition are:
Defense Distributed v. Grewal, No. 1:18-cv-637-RP,
U.S. District Court for the Western District of Texas.
Judgment entered January 30, 2019.
Defense Distributed v. Grewal, No. 19-50723, U.S.
Court of Appeals for the Fifth Circuit. Judgment entered August 19, 2020.
(iii)
TABLE OF CONTENTS
QUESTION PRESENTED........................................... i
STATEMENT OF RELATED PROCEEDINGS.........ii
OPINIONS BELOW .................................................... 1
JURISDICTION .......................................................... 1
CONSTITUTIONAL PROVISION INVOLVED ........ 1
INTRODUCTION ........................................................ 2
STATEMENT .............................................................. 4
REASONS FOR GRANTING THE PETITION ....... 12
I.
The Courts Of Appeals Are Split On The
Question Presented.................................... 12
II.
The Decision Below Squarely Conflicts With
This Court’s Precedent .............................. 17
III.
This Case Is An Ideal Vehicle To Resolve
The Circuit Split On This Important
Jurisdictional Question ............................. 26
CONCLUSION .......................................................... 33
APPENDIX
(iv)
Appendix A
Opinion, United States Court of Appeals for the
Fifth Circuit, Defense Distributed, et al. v. Gurbir
S. Grewal, No. 19-50723 (Aug. 19, 2020) ............ 1a
Appendix B
Order, United States District Court for the Western District of Texas, Defense Distributed, et al. v.
Gurbir S. Grewal, et al., No. 18-637 (Jan. 30, 2019)
............................................................................ 29a
Cases
(v)
TABLE OF AUTHORITIES
Berry College v. Rhoda,
No. 13-115, 2013 WL 12109374 (N.D. Ga. June
12, 2013) ............................................................... 17
Breckenridge Pharm., Inc. v. Metabolite Labs.,
444 F.3d 1356 (CAFed 2006) ......................... 13, 30
Bristol-Myers Squibb Co. v. Superior Ct. of
California,
137 S. Ct. 1773 (2017) .......................................... 25
C5 Medical Werks, LLC v. CeramTec GMBH,
937 F.3d 1319 (CA10 2019)...................... 13, 14, 16
Calder v. Jones,
465 U.S. 783 (1984) ...................................... passim
Deal Point Trading v. Standard Process,
No. 19-1926, 2020 WL 6106617 (S.D. Cal. Apr. 20,
2020) ..................................................................... 16
Defense Distributed v. Att’y Gen. of N.J.,
972 F.3d 193 (CA3 2020) ................................. 6, 25
Dudnikov v. Chalk & Vermilion Fine Arts,
514 F.3d 1063 (CA10 2008).................................. 14
Genetic Implant Sys. Inc. v. Core-Vent Corp.,
123 F.3d 1455 (CAFed 1997) ............................... 31
Halliburton Energy Servs. v. Ironshore Specialty Ins.,
921 F.3d 522 (CA5 2019) ..................................... 15
(vi)
Inamed Corp. v. Kuzmak,
249 F.3d 1356 (CAFed 2001) ............................... 12
Kehm Oil Co. v. Texaco, Inc.,
537 F.3d 290 (CA3 2008) ..................................... 14
Kulko v. Superior Ct.,
436 U.S. 84 (1978) ................................................ 23
Leroy v. Great W. United Corp.,
443 U.S. 173 (1979) .............................................. 24
Montana-Dakota Util. Co. v. Nw. Pub. Serv. Co.,
341 U.S. 246 (1951) .............................................. 20
Morningside Church, Inc. v. Rutledge,
No. 20-5050, 2020 WL 5077255 (W.D. Mo. Sept.
18, 2020) ............................................................... 17
New World Int’l v. Ford Global Techs.,
859 F.3d 1032 (CAFed 2017) ................... 12, 13, 14
Radio Sys. Corp. v. Accession, Inc.,
638 F.3d 785 (CAFed 2011) ................................. 13
Red Wing Shoe Co. v. Hockerson-Halberstadt, Inc.,
148 F.3d 1355 (CAFed 1998) ............. 13, 14, 26, 31
Stroman Realty v. Wercinski,
513 F.3d 476 (CA5 2008) ..................................... 15
Walden v. Fiore,
571 U.S. 277 (2014) ...................................... passim
World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286 (1980) .............................................. 24
(vii)
Yahoo! Inc. v. La Ligue Contre Le Racisme Et
L’Antisemitisme,
433 F.3d 1199 (CA9 2006).............................. 16, 26
Constitutional Provision
U.S. Const. amend. XIV .............................................. 1
Statutes
28 U.S.C. § 1254(1) ...................................................... 1
28 U.S.C. § 1291 .......................................................... 1
28 U.S.C. § 1404......................................................... 32
Rules
N.J. Ct. R. 2:12A-1..................................................... 25
Other Authorities
Cease and Desist Order, State of North Dakota v.
Better Business Marketing, Inc.
(State of North Dakota, Office of Att’y Gen., July
23, 2020) ............................................................... 28
Compl., State of Connecticut, et al. v. Teva Pharm.
USA, Inc.
(D. Conn. May 10, 2019) ...................................... 29
Ltrs. From N.Y. Att’y Gen., dated Mar. 3 & 12, 2020
.............................................................................. 28
Order, In re Ocwen Loan Servicing, LLC
(S.D. Dep’t of Labor & Regulation, Div. of
Banking, Apr. 20, 2017) ....................................... 28
(viii)
Petition, State of Texas v. Purdue Pharma L.P., et al.
(Travis Cnty. Dist. Ct., May 15, 2018) ................ 29
Press Release, Attorney General of Louisiana,
Hundreds Of Millions In Relief Announced For
Subprime Auto Loan Consumers (May 22, 2020)
.............................................................................. 30
Press Release, Attorney General’s Office, Attorney
General Determines Paid Daily Fantasy Sports
Contests Are Illegal Gambling (Apr. 5, 2016)..... 27
Press Release, Attorney General of Texas, Attorney
General Paxton Announces Multistate Settlement
Against Deceptive Cancer Charities (May 19,
2015) ..................................................................... 29
Press Release, Attorney General of Texas, Texas
Attorney General Announces Settlement
Requiring Two National Lenders to Comply with
Antitrust Laws Before Completing Merger (Nov.
13, 2015) ............................................................... 29
Press Release, Department of Attorney General, AG
Nessel’s Office Sends Cease and Desist Letters to
Online Sellers for Price-gouging (Apr. 7, 2020) .. 27
Press Release, Florida’s Chief Financial Officer, CFO
Sink Issues Consumer Alert: Floridians Should
Cease Transactions with National Foundation of
America (Apr. 25, 2017) ....................................... 27
Press Release, Office of Attorney General Karl
Racine, AG Racine Sues Predatory Online Lender
For Illegal High-Interest Loans To District
Consumers (June 5, 2020) ................................... 27
(ix)
Press Release, Office of Attorney General Maura
Healey, AG Healey Sends Cease and Desist
Letter to Online E-cigarette Retailer for Violating
State Laws, Selling to Minors (Feb. 27, 2019) .... 27
Press Release, Tennessee State Government, TABC
Investigates And Halts Illegal Direct-ToConsumer Alcohol Shipments In Tennessee (Jan.
7, 2020) ................................................................. 28
1
OPINIONS BELOW
The opinion of the court of appeals is reported at
971 F.3d 485. Pet. App. 1a-28a. The district court’s
opinion is reported at 364 F. Supp. 3d 681. Pet. App.
29a-49a.
JURISDICTION
The court of appeals had jurisdiction over Respondents’ appeal of the district court’s final judgment
under 28 U.S.C. § 1291. The Fifth Circuit issued its
opinion on August 19, 2020. This Petition is timely
filed under Supreme Court Rule 13 and this Court’s
order dated March 19, 2020, which extended the deadline for filing any petition for writ of certiorari due after the date of the order. This Court’s jurisdiction is
invoked under 28 U.S.C. § 1254(1).
CONSTITUTIONAL PROVISION INVOLVED
The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution provides: “[N]or shall
any state deprive any person of life, liberty, or property, without due process of law.”
2
INTRODUCTION
The Fifth Circuit held that the New Jersey Attorney General subjected himself to the jurisdiction of
the Texas courts by sending a single cease-and-desist
letter to a single Texas resident that warned it not to
violate New Jersey law. The court found that jurisdiction exists under the “effects test” of Calder v. Jones,
465 U.S. 783 (1984), which held that the publishers of
a defamatory article about a California actress were
subject to jurisdiction in California based on the article’s California focus and circulation to 600,000 California residents. In the Fifth Circuit’s view, the effects
of this single cease-and-desist letter to a single company are not unlike the impacts of the widespread circulation in Calder. This is the first decision to hale any
Attorney General into another forum State’s courts to
defend the validity of his State’s law based solely on a
single cease-and-desist letter.
This Court’s review of this unprecedented expansion of effects jurisdiction is needed for three reasons.
First, the decision below creates a split as to whether
sending a single cease-and-desist letter is sufficient to
demonstrate personal jurisdiction in the forum where
a plaintiff receives it. Up until this point, the courts of
appeals had uniformly found that such letters alone
were not enough for jurisdiction. The courts gave good
reasons for their approach. Inter alia, courts encourage cease-and-desist letters, which seek to resolve disputes without litigation. But if parties know sending
a cease-and-desist letter may subject them to preemptive forum-shopping litigation, they will be disincentivized from doing so. Unfortunately, despite acknowledging that a cease-and-desist letter was the “totality”
of the New Jersey Attorney General’s ties to Texas,
3
the Fifth Circuit broke from the Third, Tenth, and
Federal Circuits to allow for jurisdiction anyway.
Second, the Fifth Circuit’s approach is flatly inconsistent with this Court’s personal jurisdiction jurisprudence, and revives a test most recently rejected in
Walden v. Fiore, 571 U.S. 277 (2014). The question in
all personal jurisdiction cases is whether the defendant purposefully availed itself of the privilege of conducting activities within the forum State, invoking the
benefits and protections of its laws. By sending a single Texas company a cease-and-desist letter warning
it not to violate New Jersey law, the New Jersey Attorney General in no way availed himself of Texas as
a forum. The panel majority filled that gap by emphasizing that the recipient of the cease-and-desist letter
felt the harm in Texas, because that is where the company chooses to reside. But time and again this Court
has stressed that “mere injury to a forum resident is
not a sufficient connection to the forum,” and that personal jurisdiction will lie only if there is a sufficient
relationship between the defendant and the forum itself. Id., at 290. That error was only magnified by the
fact that the defendant here is a nonresident state official; the Fifth Circuit gave no consideration to the
important state sovereignty interests that result from
allowing Texas courts to evaluate a challenge to the
constitutionality of New Jersey law.
Finally, certiorari is especially warranted because
the implications of this case are tremendous—and this
case is an ideal vehicle to address them. State enforcement officials, not unlike private businesses, regularly
send cease-and-desist letters to out-of-state individuals and companies, seeking compliance with a range
4
of state laws from antitrust statutes to consumer protection or price gouging rules. The Fifth Circuit’s approach throws that practice into doubt, because it suggests that States would regularly be required to defend their laws in faraway courts due to preemptive
forum-shopping actions by the recipients of cease-anddesist letters. And it would inexorably lead to circuit
splits over the meaning and validity of state laws in
the future. Thankfully, this case squarely presents the
issue of whether an individual cease-and-desist letter
suffices for jurisdiction, providing the opportunity to
prevent these consequences from arising.
STATEMENT
1. In 2018, Respondent Defense Distributed, a
Texas-based company that operates a website available in all 50 States, announced plans to disseminate
computer files online that would allow any individual
with access to a 3D printer to produce their own firearms. Defense Distributed v. Grewal, W.D. Tex. No.
1:18-CV-637, Dkt. 23 at 7-8. Respondent’s plan would
enable individuals—including felons, terrorists, and
domestic abusers—to directly print their own weapons, even if they could not pass a background check.
See id. And it would allow them to produce firearms
that could not be traced by law enforcement even if
later used in a crime. Id.; see also Pet. App. 30a.
On July 26, 2018, the New Jersey Attorney General sent Respondent a cease-and-desist letter at its
Texas address, explaining that dissemination of these
files for use by New Jersey residents would violate his
State’s law. Defense Distributed v. Grewal, W.D. Tex.
No. 1:18-CV-637, Dkt. 23-5. The letter began by stating that “[y]ou are directed to cease and desist from
publishing printable-gun computer files for use by
5
New Jersey residents.” Id. The Attorney General explained that these printable gun codes “are a threat to
public safety, and posting them violates New Jersey’s
public nuisance and negligence laws.” Id.; see also id.,
Dkt. 23-5 at 1-2 (describing the relevant New Jersey
public nuisance law). Writing in his official capacity,
the Attorney General warned that “[a]s the chief law
enforcement officer for New Jersey … my Office will
initiate legal action barring you from publishing these
files before August 1, 2018.” Id., Dkt. 23-5 at 2.
Four days later, after Respondent failed to comply,
the New Jersey Attorney General followed through on
his letter and sued Defense Distributed in New Jersey
state court. Id., Dkt. 23 at 17. The New Jersey Attorney General also joined other Attorneys General in a
lawsuit in the Western District of Washington, commenced in July 2018, seeking to enjoin the U.S. State
Department from issuing a license allowing Respondent to distribute these files. Id., Dkt. 23 at 13.
But before the New Jersey Attorney General could
file the state court suit he had warned of, Respondents
rushed to court on July 29, 2018, suing the Attorney
General in the Western District of Texas instead. Id.,
Dkt. 1 & 23. 1 Respondents sought a declaration that
the New Jersey law the Attorney General threatened
to enforce was unconstitutional, and an injunction
1 Respondents also sued the New York Governor, Delaware
Attorney General, Pennsylvania Attorney General and Governor, and Los Angeles City Attorney, each in their official capacities. Defense Distributed v. Grewal, W.D. Tex. No. 1:18-CV-637,
Dkt. 23 at 5. These defendants are no longer parties to this action
because the claims against them were dismissed, and Respondents chose not to appeal that dismissal. Pet. App. 48a-49a.
6
barring him from enforcing his State’s law against Respondents’ conduct. Id., Dkt. 23 at 23-32. In particular, Respondents alleged that New Jersey law violates
the First and Second Amendments, Dormant Commerce Clause, and Supremacy Clause, and that it constitutes tortious interference with Respondents’ contracts. Id. Respondents sought a preliminary injunction and temporary restraining order against the Attorney General. Id., Dkt. 52.
Separately, Respondents also filed suit against the
New Jersey Attorney General in the District of New
Jersey, raising the same claims as in the Western District of Texas. Pet. App. 4a; see Defense Distributed v.
Grewal, D.N.J. No. 3:19-cv-4753. Over Respondents’
objection, that suit was stayed pending the resolution
of the first-filed litigation in Texas. Pet. App. 4a. Although Respondents had the option to drop the lawsuit
in Texas and proceed in New Jersey federal court, they
declined to do so. See Defense Distributed v. Att’y Gen.
of N.J., 972 F.3d 193, 197 (CA3 2020).
2. On January 30, 2019, the district court for the
Western District of Texas (Pitman, J.) dismissed for
lack of personal jurisdiction. The court, relying on Respondents’ own filings, began by explaining that the
primary jurisdictional question was whether a nonresident state official subjects itself to the jurisdiction of
Texas courts when it sends a cease-and-desist letter to
a Texas resident warning that resident not to violate
the official’s own state law. Pet. App. 40a. The court
held such a letter insufficient to establish personal jurisdiction in Texas on its own. Pet. App. 41a-43a.
The court first acknowledged that the New Jersey
Attorney General had sent its cease-and-desist letter
only “in an effort to uphold the laws” of his State. Pet.
7
App. 40a. The court explained such a letter “do[es] not
constitute ‘doing business’ in Texas, and [the New Jersey Attorney General has] not accrued any benefit relating to Texas through use of the letter[].” Id. (citation omitted). To the contrary, the Attorney General
“did not ‘purposefully avail’ [himself] of the benefits of
Texas law like someone actually ‘doing business’ in
Texas.” Id. (citations omitted). It follows that the Attorney General “could not have reasonably anticipated
being haled into federal court in Texas to defend” the
enforcement of New Jersey law. Id.
The court specifically rejected the idea that the “effects test” first announced in Calder v. Jones, 465 U.S.
783 (1984), could support personal jurisdiction in this
case. Pet. App. 41a-43a. As the court noted, “[e]ffects
jurisdiction … is rare,” and “it is premised on the idea
that an act done outside a state that has consequences
or effects within the forum state can suffice as a basis
for personal jurisdiction if the effects are seriously
harmful and were intended or highly likely to follow
from the nonresident defendant’s conduct.” Pet. App.
41a (citations omitted). The court emphasized that effects jurisdiction could not lie in Texas based solely on
the fact that a resident felt injury there: “the proper
question is not where the plaintiff experienced a particular injury or effect but whether the defendant’s
conduct connects him to the forum in a meaningful
way.” Pet. App. 42a (quoting Walden, 571 U.S., at
285). Simply, “a defendant’s conduct is insufficient to
establish minimum contacts when it has no relation to
the forum state ‘other than the fortuity that plaintiffs
reside there.’” Id. (cleaned up) (citation omitted).
8
The court held that these principles foreclosed the
exercise of jurisdiction in this case. While Respondents said that jurisdiction is proper in Texas because
that “is where Defense Distributed is headquartered
and where it publishes its website,” as well as where
the company “publishes information about firearms at
a brick-and-mortar public library,” Pet. App. 42a-43a
(quoting Respondents’ filings), the district court replied that this amounted to an impermissible request
for the “plaintiff’s contacts with the defendant and forum to drive the jurisdictional analysis.” Pet. App. 43a
(quoting Walden, 571 U.S., at 289). Said another way,
while it was true a cease-and-desist letter was mailed
to Texas (because that is where Respondent resides)
and that the company experienced the legal threat in
Texas (for the same reason), the New Jersey Attorney
General’s own conduct “has no relation to Texas, was
not expressly aimed at Texas, and does not avail itself
of any Texas laws or benefits. The only relationship
[the Attorney General’s] actions have with the State
of Texas is the ‘mere fortuity’ that Defense Distributed
resides there.” Id. (citation omitted).
The court also rejected as irrelevant the other jurisdictional ties Respondents highlighted—including
a letter that the Attorney General sent to Defense Distributed’s internet security company in California, a
statement by the Attorney General about Respondent
at a press conference in Trenton, New Jersey, and the
Attorney General’s participation in a suit in the Western District of Washington, because none of these actions “have any jurisdictionally meaningful relation to
Texas.” Pet. App. 43a n.5.
3. The Fifth Circuit reversed. Writing for the majority, Judge Edith H. Jones began by acknowledging
9
that the “totality of [the New Jersey Attorney General’s] contacts with Texas involves a cease and desist
order sent to Defense Distributed.” Pet. App. 9a. Like
the district court, the panel concluded that none of the
remaining asserted jurisdictional ties related to Texas
in any way. See Pet. App. 10a-11a (noting that, aside
from the single cease-and-desist letter, the remaining
jurisdictional hooks on which Respondents relied related to a company “based in California, not Texas,” or
otherwise “took place in New Jersey”). Whether this
nonresident state official could be haled into Texas
court thus turned on the import of this one letter.
Unlike the district court, however, the panel determined that the Attorney General’s single cease-anddesist letter to a Texas company qualified as “purposeful availment” such that he could be haled into court
in Texas to defend New Jersey’s law. The panel wrote
that it was reaching its conclusion because the Attorney General, in sending a letter to Respondent, allegedly sought to “‘halt publication of the printable-gun
computer files’” anywhere in the United States “without specifying that Defense Distributed cease marketing its materials to New Jersey residents” alone. Pet.
App. 12a; see Pet. App. 14a (basing jurisdiction on the
fact that the letter “asserted a pseudo-national executive authority” that was not limited to New Jersey’s
borders). 2 The majority also found that “many of [Respondents’] claims are based on [the] cease-and-desist,” which supported jurisdiction. Pet. App. 11a.
2 To be clear, New Jersey disagreed with the panel’s reading
of this letter—which specifically warned Respondent not to publish its printable gun codes “for use by New Jersey residents.”
Pet. App. 12a n.6. But New Jersey acknowledges that at the motion-to-dismiss stage courts “resolve all factual disputes in favor
10
After describing New Jersey’s cease-and-desist letter, the panel held that the letter sufficed for the exercise of jurisdiction under Calder’s “effects test.” Pet.
App. 18a-19a. In Calder, the Court allowed for the exercise of jurisdiction in California where the National
Enquirer’s defamatory article about a California actress was based upon information obtained from California sources about California activities, was circulated to 600,000 California residents, and caused reputational harm in California. 465 U.S. at 788-89. The
Fifth Circuit concluded that “Walden [v. Fiore] makes
clear that Calder remains good law.” Pet. App. 17a.
The Fifth Circuit held that this case fit in the mold
of Calder because the cease-and-desist letter allegedly
“had a chilling effect on the exercise of [Respondents’]
First Amendment rights,” which in turn “caused them
to cease publication and reduced Texans’ access to the
materials the plaintiffs seek to publish.” Pet. App.
18a. As a result, because this letter had “‘a potentially
devastating impact’ on the plaintiffs—and, by extension, those who wished to benefit from the plaintiffs’
activities, including Texas residents,” Pet. App. 19a
(quoting Calder, 465 U.S. at 789), the majority found
that its impact “is not unlike that of the defamatory
article at issue in Calder.” Pet. App. 18a.
Judge Higginson concurred, agreeing that specific
personal jurisdiction exists based on the allegation
that the Attorney General sought “to prevent Texas
residents from publishing files online to individuals
of the plaintiff.” Id. Even assuming the panel correctly interpreted New Jersey’s letter, however, its legal conclusions generated a split among circuits, directly conflict with this Court’s
precedents, and will have significant consequences for state enforcement actions and cease-and-desist letters going forward.
11
outside of New Jersey,” Pet. App. 23a, but disagreeing
that Calder’s “effects test” would apply. Judge Higginson started by emphasizing that “[t]his form of jurisdiction is ‘rare,’ and the Supreme Court has moved
away from an effects-based analysis, instead requiring active minimum contacts with the forum state.”
Pet. App. 25a. Although Walden acknowledged that
Calder could remain good law (as the majority emphasized), Walden also “explained that Calder should not
be interpreted to confer jurisdiction whenever an individual is accused of committing a tort against a resident of the forum state.” Id.
The concurrence concluded that the instant litigation fell far short of the special circumstances of Calder. While “Calder was unique in that there was evidence in the record that the defendant’s conduct affected not only the plaintiff but also at least 600,000
others in the forum state,” this single “cease-and-desist letter injured only the plaintiffs because it threatened enforcement against only them.” Pet. App. 26a.
And though it was true Respondents happened to be
based in Texas, Respondents “cannot rely on their connections to Texas alone to show an effect within the
state based on Grewal’s actions toward them as individuals he knew to be Texans.” Id. Simply put, while
the Attorney General “communicated with Texas residents”—to warn them they would be violating New
Jersey’s law—“none of [his] challenged conduct had
anything to do with [Texas] itself.” Pet. App. 27a
(quoting Walden, 571 U.S., at 289).
Judge Higginson also explained that the majority’s
expansive reading of Calder had significant implications for “state sovereignty principles.” Pet. App. 25a.
His opinion noted that “[w]hen a state defends its laws
12
in a faraway forum, it loses the benefit of having the
laws examined by local state or federal courts—courts
that have special expertise interpreting its laws.” Pet.
App. 27a n.3 (citation omitted). That is why, Judge
Higginson continued, he was unable to find any other
case exercising personal jurisdiction over a nonresident government official on such facts. Id. To the contrary, “[f]rom [his] review of cases against government
officials who attempt to enforce a state law, so for no
personal or commercial profit, the litigation has taken
place in the governmental official’s state.” Id.
REASONS FOR GRANTING THE PETITION
The Fifth Circuit determined that Texas courts enjoy personal jurisdiction over the New Jersey Attorney
General on the basis of a single cease-and-desist letter
he sent to a single Texas resident. That decision generates a circuit split; is directly inconsistent with this
Court’s precedents; and will have sweeping consequences for state officials seeking to enforce their
laws. This Court should grant certiorari.
I.
The Courts Of Appeals Are Split On The
Question Presented.
The Fifth Circuit’s conclusion that a cease-and-desist letter alone can suffice to support personal jurisdiction in the recipient’s forum State conflicts with decisions from the Federal, Tenth, and Third Circuits.
The Federal Circuit has repeatedly “held that it is
improper to predicate personal jurisdiction on the act
of sending ordinary cease and desist letters into a forum, without more.” New World Int’l v. Ford Global
Techs., 859 F.3d 1032, 1038 (CAFed 2017); see, e.g.,
Inamed Corp. v. Kuzmak, 249 F.3d 1356, 1361 (CAFed
13
2001) (confirming “the sending of an infringement letter, without more, is insufficient to satisfy the requirements of due process when exercising jurisdiction over
an out-of-state patentee”); Red Wing Shoe Co. v. Hockerson-Halberstadt, Inc., 148 F.3d 1355, 1361 (CAFed
1998) (concluding that “cease-and-desist letters alone
do not suffice to create personal jurisdiction”); Radio
Sys. Corp. v. Accession, Inc., 638 F.3d 785, 789 (CAFed
2011); Breckenridge Pharm., Inc. v. Metabolite Labs.,
444 F.3d 1356, 1363 (CAFed 2006). After all, as that
court has repeatedly explained, “principles of fair play
and substantial justice afford a patentee sufficient latitude to inform others of its patent rights without subjecting itself to jurisdiction in a foreign forum.” New
World Int’l, 859 F.3d, at 1038 (quoting Red Wing Shoe,
148 F.3d, at 1360-61). A contrary rule would prevent
a patentee from doing so pre-litigation.
The Tenth Circuit’s precedent is in accord. See C5
Medical Werks, LLC v. CeramTec GMBH, 937 F.3d
1319, 1234 (CA10 2019) (“[W]e agree with the Federal
Circuit that a single cease-and-desist letter is insufficient to confer jurisdiction in a declaratory judgment
action like this one.”). In that case, a German ceramics
producer sent a Colorado competitor a letter warning
of trademark violations and threatening suit. Id. at
1322. When the Colorado company sued in the District
of Colorado in response, the Tenth Circuit concluded
that this single letter was “not a proper basis for jurisdiction” in the State. Id. at 1324; see also id. (adding
that, for effects-based jurisdiction, “merely interacting
with a plaintiff known to bear a strong connection to
the forum state is not enough to establish jurisdiction”) (citing Walden, 571 U.S. at 284). Instead, because the plaintiff “failed to allege sufficient activities
14
in addition to the cease-and-desist letter, [the] exercise of personal jurisdiction … was improper.” Id.
Finally, the Third Circuit has likewise rejected the
idea that a cease-and-desist letter alone justifies exercising jurisdiction in the recipient’s forum state. See
Kehm Oil Co. v. Texaco, Inc., 537 F.3d 290, 301 (CA3
2008) (holding, in a franchisor dispute, that “a cease
and desist letter does not rise to the level of purposeful
availment for purposes of jurisdiction in Pennsylvania”). After all, the minimum contacts analysis looks
at whether a defendant has purposefully availed itself
of the forum, but a cease-and-desist letter “expresses
the goal not to do business in” the forum State. Id. (citing Red Wing Shoe, 148 F.3d at 1361). The split could
not be clearer: if the Texas Attorney General had sent
a cease-and-desist letter to a New Jersey company, jurisdiction in New Jersey would not be proper on that
basis. But the converse is now permitted.
To be sure, these courts have acknowledged that a
cease-and-desist letter can be relevant to the jurisdictional analysis if it is one of multiple contacts with the
forum. See New World, 859 F.3d, at 1038 (concluding
that “[w]hile the act of sending cease and desist letters
is in-sufficient by itself to trigger a finding of personal
jurisdiction, other activities by the defendant, in conjunction with cease and desist letters, may be sufficient,” and collecting cases); Dudnikov v. Chalk & Vermilion Fine Arts, 514 F.3d 1063, 1082 (CA10 2008) (allowing jurisdiction when defendant “communicated …
to a third party with the intent that the third party
take action directly against plaintiffs’ business interests,” but holding that such letter was “readily distinguishable” from “sending a mere cease-and-desist let-
15
ter directly to plaintiffs,” and “[a]ssuming without deciding that it would be unreasonable to found jurisdiction solely on a cease-and-desist letter”). In this case,
however, the court below admitted the “totality of [the
New Jersey Attorney General’s] contacts with Texas
involves a cease and desist order sent to Defense Distributed.” Pet. App. 9a. And as to the jurisdictional import of such a cease-and-desist letter standing alone,
the Federal, Tenth, and Third Circuits are clear.
The Fifth Circuit’s approach stands in contrast to
these decisions. Of course, the Fifth Circuit recognizes
that many cease-and-desist letters are insufficient to
support jurisdiction in the recipient’s state. See, e.g.,
Halliburton Energy Servs. v. Ironshore Specialty Ins.,
921 F.3d 522, 542 (CA5 2019) (finding letters at issue,
“even if they threatened litigation, are not enough to
show minimum contacts with Texas”); 3 Stroman Realty v. Wercinski, 513 F.3d 476 (CA5 2008) (rejecting
claim that nonresident state official was subject to jurisdiction based upon cease-and-desist letter). But unlike the other circuits, the Fifth Circuit believes such
letters are enough to create effects-based jurisdiction
in the recipient’s State if the sender asserts “pseudonational” authority that would “crush” the recipient’s
operations, and thus would have downstream effects
on the company’s consumers—including consumers in
the forum state. See Pet. App. 12a-14a.
That legal line is flatly inconsistent with the cases
discussed above. The Federal Circuit’s rulings provide
3 Notably, the Fifth Circuit in Halliburton acknowledged that
“[m]any other circuits have addressed similar scenarios in which
a potential plaintiff sends a cease-and-desist letter threatening
litigation to a potential defendant. None of these courts held that
sending a letter amounts to purposeful availment.” Id.
16
a perfect example. There is no dispute, of course, that
a patent provides the holder with national rights; as a
result, a cease-and-desist letter threatening infringement action asserts pseudo-national authority against
the conduct. In the same vein, successful infringement
lawsuits also “crush” the operations of any infringer,
with downstream consequences to that company’s consumers. So too for the Tenth Circuit ruling in C5 Medical Werks, which involved a “pseudo-national” assertion of trademark rights and an attempt to “crush” the
unlawful business practices of a Colorado-based company. But in those cases, the courts relied on the fact
that the letters reflected no purposeful availment of
the forum State, but simply the fortuity of where the
violator resided. The distinct considerations advanced
by the Fifth Circuit played no role whatsoever. 4
Finally, while the cases cited above involved ceaseand-desist letters issued by nonresident corporations
rather than nonresident state officials, that is no basis
for distinguishing the circuit split. As laid out in detail
4 While the Fifth Circuit appears to be the only court to adopt
its expansive approach after Walden, the Ninth Circuit has previously adopted a distinct rule that allows jurisdiction to turn on
the nature of the cease-and-desist letter. See, e.g., Yahoo! Inc. v.
La Ligue Contre Le Racisme Et L’Antisemitisme, 433 F.3d 1199,
1209 (CA9 2006). In Yahoo!, the Ninth Circuit held that courts
should examine the intent behind a cease-and-desist letter to determine whether it is “more like a normal cease and desist letter”
(and does not support jurisdiction in the recipient’s forum state)
or is “abusive, tortious or otherwise wrongful” (and could support
jurisdiction). Id. at 1209. Notably, while Yahoo! was decided before Walden, district courts in the Ninth Circuit continue to apply
its test to cease-and-desist letters. See, e.g., Deal Point Trading
v. Standard Process, No. 19-1926, 2020 WL 6106617, *4-5 (S.D.
Cal. Apr. 20, 2020) (inquiring into whether letters were “abusive,
tortious or otherwise wrongful”).
17
below, the arguments against jurisdiction are stronger
when nonresident state officials are involved. See infra at 23-24. In such a case, it is especially likely that
the nonresident state official is simply seeking to enforce his State’s law rather than to enjoy the benefits
of Texas, and particularly likely it is a “mere fortuity”
the recipient resides in Texas. It cannot be that a national company avoids personal jurisdiction based on
a cease-and-desist letter, but a State official—sued in
his official capacity—can be haled into another State’s
courts to defend the validity of his own law based on
the same facts. 5 A clear split thus exists as to whether
and when a single cease-and-desist letter alone supports the exercise of personal jurisdiction.
II.
The Decision Below Squarely Conflicts
With This Court’s Precedent.
The Fifth Circuit’s decision is an outlier for a good
reason: its approach resurrects an expansive understanding of jurisdiction that this Court has repeatedly
5 In any event, although the few cases New Jersey has iden-
tified involving cease-and-desist letters from nonresident state
officials were resolved by district courts, these courts also refused
to exercise jurisdiction. See Berry College v. Rhoda, No. 13-115,
2013 WL 12109374, *11 (N.D. Ga. June 12, 2013) (refusing jurisdiction over Executive Director of the Tennessee Higher Education Commission where his total “contacts with Georgia involved
communications with Plaintiff in which Defendants attempted to
perform their regulatory duties” because he did not “purposefully
avail[]” himself “of Georgia’s benefits and laws like individuals
or entities that actually conduct business in Georgia”); Morningside Church, Inc. v. Rutledge, No. 20-5050, 2020 WL 5077255, *35 (W.D. Mo. Sept. 18, 2020) (dismissing suit against nonresident
officials and finding that their decisions to send letters and subpoenas to Missouri company did not subject them to jurisdiction
in Missouri), appeal docketed, CA8 No. 20-2954.
18
rejected. In the process, the Fifth Circuit reached the
unprecedented conclusion that mailing a single letter
to a single company suffices to establish “effects jurisdiction” in the recipient forum State. And it failed to
give any weight to New Jersey’s sovereignty interests,
notwithstanding the important role for federalism in
the due process analysis. Certiorari is needed to return the federal courts to the jurisdictional principles
this Court has consistently articulated.
1. Begin with hornbook jurisdictional rules. As this
Court has explained, the inquiry into whether a defendant can be haled into court (let alone whether a
nonresident state official can be) turns on “the defendant’s contacts with the forum State itself, not the defendant’s contacts with persons who reside there.”
Walden, 517 U.S., at 285. In other words, “the plaintiff
cannot be the only link between the defendant and the
forum. Rather, it is the defendant’s conduct that must
form the necessary connection with the forum State
that is the basis for its jurisdiction over him.” Id. At
bottom, the question is whether a defendant has “purposefully avail[ed] itself of the privilege of conducting
activities within the forum State, thus invoking the
benefits and protections of its laws,” Burger King, 471
U.S. at 475, or whether the relationship to the forum
is being driven by the plaintiff instead.
The Fifth Circuit erred in concluding that this single cease-and-desist letter is sufficient to meet that
test. As laid out above, the Fifth Circuit admitted the
“totality of [the New Jersey Attorney General’s] contacts with Texas involves a cease and desist order”
sent to Defense Distributed alone. Pet. App. 9a. And
that letter had nothing to do with Texas. To the con-
19
trary, the cease-and-desist letter informed Respondents that their conduct would violate New Jersey law
and it described the action New Jersey’s chief law enforcement officer intended to pursue in New Jersey
court. See Dist. Ct. Dkt. 23-5 at 1-2 (warning that the
conduct “violates New Jersey’s public nuisance and
negligence laws” and “[a]s the chief law enforcement
officer for New Jersey … my Office will initiate legal
action”). The only time Texas appears in the letter is
in Respondent’s own address block. But see Walden,
517 U.S., at 289 (holding it is “impermissibl[e]” to “allow[] a plaintiff’s contacts with the defendant and forum to drive the jurisdictional analysis”).
There is no way in which the New Jersey Attorney
General purposefully availed himself of the privilege
of conducting activities within Texas, invoking its legal benefits and protections. To the contrary, it is undisputed that the Attorney General sent a letter only
“in an effort to uphold the laws” of his State, and did
not warn Respondent against violating Texas law or
the law of any other state. Pet. App. 40a; Dist. Ct. Dkt.
23-5 at 1-2. Had the Attorney General simply filed his
proposed enforcement action without a pre-suit letter,
it would be obvious that he had no contact with Texas.
The analysis does not change just because he chose to
send Respondent a warning letter urging compliance,
and Respondent happened to reside in Texas.
The Fifth Circuit’s own legal analysis confirms the
shortcomings in its approach. According to the panel,
while many cease-and-desist letters would be insufficient for jurisdiction, the rule is different when a nonresident state official asserts any “pseudo-national authority.” Pet. App. 14a. But that turns the purposeful
availment analysis on its head: while such assertions
20
of extra-territorial enforcement authority might go to
the merits of Respondents’ substantive Dormant Commerce Clause claim, 6 they operate in just the opposite
way for jurisdiction. See Montana-Dakota Util. Co. v.
Nw. Pub. Serv. Co., 341 U.S. 246, 249 (1951) (noting
“the question whether jurisdiction exists” is distinct
from “the question whether the complaint states a
cause of action”). After all, any allegations that the Attorney General reads New Jersey law to demand compliance across the Nation makes clear that the Attorney General was not targeting Texas; that he would
have pursued the same letter and challenge had Respondent resided in any other State; and that the relationship to Texas is driven by the plaintiff and not
the defendant. See Pet. App. 43a (finding the Attorney
General’s conduct “has no relation to Texas, was not
expressly aimed at Texas, and does not avail itself of
any Texas laws or benefits. The only relationship [the
Attorney General’s] actions have with the State of
Texas is the ‘mere fortuity’ that Defense Distributed
resides there.”). Put simply, any efforts to enforce New
Jersey law uniformly across the country fail to indicate any purposeful availment of Texas.
2. The Fifth Circuit got around these problems only
by adopting an unprecedented approach to effects jurisdiction. In short, the majority held that mailing a
single letter to a single company is sufficient to satisfy
the test first laid out in Calder. But that flatly ignores
this Court’s most recent case on the subject.
6 Of course, the State contests that it sought to enforce its law
in any way that violates the Dormant Commerce Clause, and is
simply referring to Respondents’ allegations, on which the Fifth
Circuit relied at this stage of the case. See Pet. App. 6a-7a.
21
In Walden v. Fiore, this Court addressed the effects
test for personal jurisdiction and made clear that its
reach was narrow. In Walden, Nevada plaintiffs sued
a nonresident law enforcement official for conducting
an allegedly unlawful seizure of the plaintiffs’ funds
in Georgia. This Court reversed the finding that jurisdiction existed in Nevada, reasoning that the defendant’s “relevant conduct occurred entirely in Georgia”
and his actions did not connect him to Nevada “in a
meaningful way.” 571 U.S., at 290-91. The Court thus
held that “mere injury to a forum resident is not a sufficient connection to the forum,” rejecting a jurisdictional test that equates a defendant’s connection to a
forum resident with connections to the forum itself.
See id. at 289-90; see also id. at 291 (noting “it is the
defendant, not the plaintiff or third parties, who must
create contacts with the forum”).
In the process, Walden discussed Calder v. Jones—
in which the Court first announced the effects test for
personal jurisdiction—and made clear that it was limited in scope. Although Calder held that the nonresident reporter and editor of a National Enquirer article
could be haled into California court in a defamation
suit, the unique facts in that case showed those defendants really had taken “intentional conduct … that
creates the necessary contacts with the forum” itself,
not just the particular plaintiff. Walden, 571 U.S., at
286. To reach that conclusion, Calder had found “defendants relied on phone calls to ‘California sources’
for the information in their article; they wrote the
story about the plaintiff's activities in California; they
caused reputational injury in California by writing an
allegedly libelous article that was widely circulated in
the State; and the ‘brunt’ of that injury was suffered
by the plaintiff in that State.” Walden, 571 U.S., at
22
287 (emphasis added). Notably, the challenged article
was published in “a national weekly newspaper with
a California circulation of roughly 600,000.” Id.; see
Pet. App. 25a-26a (Higginson, J., concurring) (concluding that “Calder was unique,” and that such jurisdiction “is rare, and the Supreme Court has moved
away from an effects-based analysis”).
This case could not be further afield. As laid out in
detail above, the only contact on which the Fifth Circuit relied for jurisdiction was the sending of a single
letter to a single forum resident—in sharp contrast to
the facts of Calder. The Fifth Circuit found this letter
was nevertheless enough to establish “effects jurisdiction” because the “cease-and-desist letter would have
a potentially devastating impact on the plaintiffs—
and, by extension, those who wished to benefit from
the plaintiffs’ activities, including Texas residents.”
Pet. App. 19a. In other words, although the New Jersey Attorney General’s only “contact” with Texas was
his relationship with the Texas resident, the majority
explicitly focused on the fact of Respondents experiencing injury in Texas to fill that gap.
But that is precisely the error that Walden warns
against. See Walden, 571 U.S., at 289 (reversing decision that allowed “plaintiff’s contacts with the defendant and forum to drive the jurisdictional analysis”). As
Judge Higginson put it, this “cease-and-desist letter
injured only the plaintiffs because it threatened enforcement against only them. Plaintiffs cannot rely on
their connections to Texas alone to show an effect
within the state based on [the Attorney General’s] actions toward them as individuals he knew to be Texans.” Pet. App. 26a. Again, the only reason the New
23
Jersey Attorney General had contact with Texas is because that is where Defense Distributed is located; if
the company resided in another state, the same events
would have occurred. At the end of the day, “[t]hough
he affirmatively communicated with Texas residents,
‘none of [the Attorney General’s] challenged conduct
had anything to do with [Texas] itself.’” Pet. App. 27a
(quoting Walden, 571 U.S. at 289). 7
3. The panel decision is especially untenable given
the important sovereignty interests it disregarded.
To begin, the panel overlooked the fact that nonresident state officials do not purposefully avail themselves of the benefits of a foreign State’s law like commercial actors do. Unlike the latter, nonresident state
officials derive no economic, commercial, or personal
benefit from efforts to enforce their State’s law against
out-of-state actors who seek to violate it. See Kulko v.
Superior Ct., 436 U.S. 84, 97 (1978) (explaining that
lack of “commercial benefit” to a defendant precludes
analogy to commercial activity as basis for jurisdiction); Pet. App. 27a n.3 (Higginson, J., concurring)
(noting “officials who attempt to enforce a state law”
do so “for no personal or commercial profit”). Instead,
their actions redound to the benefit of their States.
That distinction matters especially because this is an
Ex Parte Young suit, which relies on the fact that a
state officer—not the State itself—is the defendant. In
other words, Respondents seek to have it both ways
under the Ex Parte Young doctrine by suing an official
to avoid the sovereign immunity bar, while relying on
7 Indeed, the conflict between the decision below and the de-
cisions of this Court limiting effects jurisdiction is so clear that
this Court could consider reversing summarily on that basis.
24
the benefits accruing to the State to establish personal
jurisdiction. That approach lacks any basis in law.
Moreover, a rule allowing state officials to be haled
into the courts of another State to defend the validity
of their laws raises serious federalism concerns. For
one, States have an interest in not having the validity
of their laws decided by faraway courts, which lack the
expertise interpreting their laws that the local courts
enjoy. See Leroy v. Great W. United Corp., 443 U.S.
173, 186 (1979) (“[F]ederal judges sitting in Idaho are
better qualified to construe Idaho law, and to assess
the character of Idaho’s probable enforcement of that
law, than are judges sitting elsewhere.”); Pet. App.
27a n.3 (Higginson, J., concurring) (same). This is not
just a practical issue, but one that sounds in due process. See World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286, 292 (1980) (due process “ensures that
the States through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns”).
For another, the Fifth Circuit’s decision will lead
inexorably to an increase in circuit splits on the meaning and validity of state law. Because of the frequency
of state cease-and-desist letters, see infra at 27-28, the
Fifth Circuit’s ruling will generate additional forumshopping preemptive suits like this one, and federal
courts may be required to interpret state laws and assess their constitutionality well beyond their circuits.
It follows that federal courts may adopt and apply interpretations that conflict with related rulings of the
25
home state circuit—leading to greater confusion and
implementation challenges for the States. 8
Nor is this concern academic. Just days after the
district court dismissed the instant action, Respondents (along with a group of other plaintiffs) filed another action in the District of New Jersey challenging
the same New Jersey law. See Defense Distributed v.
Att’y Gen. of N.J., 972 F.3d 193, 196-97 (3d Cir. 2020).
Because of the involvement of additional plaintiffs,
Respondents claim the case will have to be resolved no
matter how the Texas action comes out. If the Texas
courts and the New Jersey courts both exercise jurisdiction to assess the meaning and validity of New Jersey law, a merits conflict remains possible.
This Court has instructed courts time and again to
take sovereignty interests into account in conducting
personal jurisdiction analyses. See, e.g., Bristol-Myers
Squibb Co. v. Superior Ct. of California, 137 S. Ct.
1773, 1780 (2017) (noting that courts “must” consider
“many essential attributes of [state] sovereignty” in
this inquiry). At a minimum, due process requires a
court to weigh these important sovereignty interests
when the defendant is a nonresident state official. The
panel’s failure to do so is one more way in which its
decision directly contrasts with this Court’s personal
jurisdiction precedents.
8 The Fifth Circuit would not have the ability to avoid such
conflicts in this case by certifying questions to the New Jersey
Supreme Court, because the Supreme Court’s rules unsurprisingly permit certification requests only from the Third Circuit.
See N.J. Ct. R. 2:12A-1.
III.
26
This Case Is An Ideal Vehicle To Resolve
The Circuit Split On This Important Jurisdictional Question.
Not only did the Fifth Circuit misapply effects jurisdiction and create a circuit split in the process, but
its decision has enormous consequences for States and
businesses nationwide. This case is an ideal vehicle to
address the question presented and to prevent those
consequences from materializing.
1. Unfortunately, the decision below risks having a
significant impact on the use of cease-and-desist letters. As one court explained, “[t]here are strong policy
reasons to encourage cease and desist letters. They
are normally used to warn an alleged rights infringer
that its conduct, if continued, will be challenged in a
legal proceeding, and to facilitate resolution of a dispute without resort to litigation.” Yahoo!, 433 F.3d, at
1208. But “[i]f the price of sending a cease and desist
letter is that the sender thereby subjects itself to jurisdiction in the forum of the alleged rights infringer,
the rights holder will be strongly encouraged to file
suit in its home forum without attempting first to resolve the dispute informally by means of a letter.” Id.;
see also Red Wing Shoe, 148 F.3d, at 1361 (noting “[a]
patentee should not subject itself to personal jurisdiction in a forum solely by informing a party who happens to be located there of suspected infringement,”
and that the contrary rule “provid[es] disincentives for
the initiation of settlement negotiations”).
Indeed, cease-and-desist letters are a common tool
for state enforcement officials for these very reasons—
meaning the Fifth Circuit’s ruling has consequences
far beyond this case. In recent years, across a range of
contexts, Attorneys General and other state officials
27
have sent such letters to out-of-state companies warning them not to violate state law. Examples of ceaseand-desist letters to out-of-state companies include a
letter from the Alabama Attorney General to sports
betting companies to prevent violations of state gambling statutes; 9 from the D.C. Attorney General to a
Delaware-barred online lender for deceptive business
practices; 10 from the Florida Insurance Commissioner
to a Tennessee business ordering it to cease soliciting
Florida consumers; 11 from the Massachusetts Attorney General to an online seller of electronic cigarette
devices to block sales that violate state law; 12 from the
Michigan Attorney General to businesses engaging in
price gouging during the COVID-19 pandemic; 13 from
the New York Attorney General to those selling false
9 See Press Release, Attorney General’s Office, Attorney Gen-
eral Determines Paid Daily Fantasy Sports Contests Are Illegal
Gambling (Apr. 5, 2016), https://tinyurl.com/y6l3gvoj.
10 See Press Release, Office of Attorney General Karl Racine,
AG Racine Sues Predatory Online Lender For Illegal High-Interest Loans To District Consumers (June 5, 2020), https://tinyurl.com/y3rrlaft.
11 See Press Release, Florida’s Chief Financial Officer, CFO
Sink Issues Consumer Alert: Floridians Should Cease Transactions with National Foundation of America (Apr. 25, 2017),
https://tinyurl.com/y5ma6p8c.
12 See Press Release, Office of Attorney General Maura Hea-
ley, AG Healey Sends Cease and Desist Letter to Online E-cigarette Retailer for Violating State Laws, Selling to Minors (Feb.
27, 2019), https://tinyurl.com/y3xslqaw.
13 See Press Release, Department of Attorney General, AG
Nessel’s Office Sends Cease and Desist Letters to Online Sellers
for Price-gouging (Apr. 7, 2020), https://tinyurl.com/yxwqhre4.
28
treatments for COVID-19; 14 from the North Dakota
Attorney General to a business regarding registering
as a debt settlement provider under state law; 15 from
the South Dakota Division of Banking to a company
to prevent it from acquiring new residential mortgages until it proved its operations comply with state
law; 16 and from Tennessee regulators to alcohol shippers regarding violations of state liquor laws. 17
The fact that the Fifth Circuit drew a line between
cease-and-desist letters asserting a “pseudo-national”
authority and letters that assert more limited authority in no way diminishes the impact of its decision. For
one, the intended scope of an enforcement action will
often be a contested factual issue—as it is here—subjecting nonresident officials to jurisdictional discovery
in a foreign forum. Pet. App. 19a n.10 (panel decision
below), Pet. App. 23a n.1 (Higginson, J., concurring).
But more importantly, state enforcement actions regularly seek remedies that are not limited to their borders—especially in areas like antitrust enforcement or
charities regulation. There are many such actions,
See Mar. 3, 2020 Ltr. from N.Y. Att’y Gen., https://tinyurl.com/yxswwhgr; Mar. 12, 2020 Ltr. From N.Y. Att’y Gen.,
https://tinyurl.com/yaxeqwnn.
14
15 See Cease and Desist Order, State of North Dakota v. Bet-
ter Business Marketing, Inc. (State of North Dakota, Office of
Att’y Gen., July 23, 2020), https://tinyurl.com/y2knvtrk.
16 See Order, In re Ocwen Loan Servicing, LLC (S.D. Dep’t of
Labor & Regulation, Div. of Banking, Apr. 20, 2017), https://tinyurl.com/y3mwzchg.
17 See Press Release, Tennessee State Government, TABC In-
vestigates And Halts Illegal Direct-To-Consumer Alcohol Shipments In Tennessee (Jan. 7, 2020), https://tinyurl.com/y5oj4ka6.
29
and the following examples from within the Fifth Circuit alone helpfully illustrate the point:
•
The Texas Attorney General settled a multistate action against out-of-state cancer charities, requiring dissolution of two of them; 18
•
The Texas Attorney General settled a multistate action requiring changes to the merger
of national lenders, requiring amendment to
non-compete clauses not limited to Texas; 19
•
The Texas Attorney General filed a consumer
protection suit against national opioid manufacturers seeking marketing practice changes
not limited to Texas; 20
•
The Louisiana Attorney General took part in
a multistate antitrust action against generic
drug manufacturers, seeking to enjoin them
from engaging in anticompetitive conduct not
limited to Louisiana; 21 and
18 See Press Release, Attorney General of Texas, Attorney
General Paxton Announces Multistate Settlement Against Deceptive Cancer Charities (May 19, 2015), https://tinyurl.com/yxczpxj6;
19 See Press Release, Attorney General of Texas, Texas At-
torney General Announces Settlement Requiring Two National
Lenders to Comply with Antitrust Laws Before Completing Merger (Nov. 13, 2015), https://tinyurl.com/y6qezdbo.
Petition, State of Texas v. Purdue Pharma L.P., et al.
(Travis Cnty. Dist. Ct., May 15, 2018), https://tinyurl.com/y4rd4zmo.
20
See Compl., State of Connecticut, et al. v. Teva Pharm.
USA, Inc. (D. Conn. May 10, 2019), https://tinyurl.com/y3ru2nyj.
21
30
•
The Louisiana Attorney General settled a
multistate suit against a bank based on deceptive practices, requiring changes to its
lending practices beyond Louisiana. 22
As these examples show, state enforcement activity against out-of-state actors is commonplace—even
where the relief has broad implications for the corporate actor. Under the Fifth Circuit’s rule, were these
actions preceded by cease-and-desist letters, the validity of the claims may have been litigated in the forum
State of the recipient instead. See Pet. App. 27a n.3
(Higginson, J., concurring) (highlighting that “[w]hen
a state defends its laws in a faraway forum, it loses
the benefit of having the laws examined by local state
or federal courts—courts that have special expertise
interpreting its laws”) (citation omitted). Those jurisdictional consequences undermine the States’ ability
to benefit from cease-and-desist letters.
2. The Fifth Circuit’s decision is no less disruptive
for commercial actors, who up until now could safely
assume that merely sending a cease-and-desist letter
would not subject them to jurisdiction in the recipient’s State. See, e.g., Breckenridge Pharm., 444 F.3d,
at 1366 n.8 (noting cease-and-desist letters are commonplace in patent infringement disputes). Indeed,
an approach that allows jurisdiction in the recipient’s
forum State where the cease-and-desist letter asserts
any “pseudo-national” authority to limit their conduct
would wreak havoc in the context of private litigation,
22 See Press Release, Attorney General of Louisiana, Hun-
dreds Of Millions In Relief Announced For Subprime Auto Loan
Consumers (May 22, 2020), http://ag.state.la.us/Article/10758.
31
where senders often assert contractual or legal rights
nationwide. After all, a patentee’s purpose in sending
a cease-and-desist letter to a suspected infringer is to
prevent infringement not only in one state, but to prevent it everywhere—given a patent’s national scope.
See Red Wing, 148 F.3d, at 1361; Genetic Implant Sys.
Inc. v. Core-Vent Corp., 123 F.3d 1455, 1458 (CAFed
1997). So too for disputes over trademarks, non-compete agreements, and more. If sending a cease-and-desist letter to a Texas company that asserts nationwide
limits on its conduct suffices for jurisdiction in Texas,
especially where the letter would significantly affect
the violator’s operations, businesses may also have to
rethink their reliance on cease-and-desist letters to resolve disputes without suit.
3. Finally, the instant case presents an ideal vehicle to clarify whether a nonresident state official subjects itself to jurisdiction in another forum State when
it sends a single cease-and-desist letter to a single resident in the State. Most importantly, the Fifth Circuit
explicitly acknowledged the “totality of [the New Jersey Attorney General’s] contacts with Texas involves
a cease and desist order sent to Defense Distributed.”
Pet. App. 9a. The jurisdictional question regarding the
role of such a letter is thus cleanly presented.
Although the concurrence recognized that the New
Jersey Attorney General may, on remand, still seek to
avoid litigation of this case in Texas courts, those avenues do not undermine the need for certiorari. First,
the concurrence explained that the New Jersey Attorney General could introduce evidence on remand that
he was not asserting “pseudo-national” authority and
that the requested relief was limited to Respondent’s
actions relative to New Jersey. Pet. App. 23a n.1. The
32
point of a clear jurisdictional rule, however, is to avoid
subjecting nonresident officials and other defendants
to burdensome discovery in another forum. And as explained above, even if the New Jersey Attorney General had asserted such pseudo-national authority, personal jurisdiction would still be improper. Second, the
concurring opinion suggested that the Attorney General could pursue a transfer to the District of New Jersey on remand. But the success of such a transfer motion is hypothetical and uncertain. Moreover, it is always the case that a party validly subject to jurisdiction in one forum could still seek transfer to another,
see 28 U.S.C. § 1404, meaning this possibility arises
in every personal jurisdiction case.
The question whether a single cease-and-desist letter from a nonresident official suffices for jurisdiction
is directly presented and outcome-determinative. This
Court should act to confirm that state officials using
this common enforcement tool do not run the risk of
preemptive litigation in faraway courts.
33
CONCLUSION
This Court should grant the petition.
Respectfully submitted,
GURBIR S. GREWAL
Attorney General
State of New Jersey
JEREMY M. FEIGENBAUM*
State Solicitor
MAYUR P. SAXENA
Assistant Attorney General
MELISSA MEDOWAY
TIM SHEEHAN
Deputy Attorneys General
Office of Attorney General
25 Market Street
P.O. Box 112
Trenton, NJ 08625
(609) 292-4925
Jeremy.Feigenbaum@
njoag.gov
*Counsel of Record
January 2020
Counsel for Petitioners
APPENDIX
1a
APPENDIX A — Appendix
OPINIONAOF THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT, FILED AUGUST 19, 2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 19-50723
DEFENSE DISTRIBUTED; SECOND
AMENDMENT FOUNDATION, INCORPORATED,
Plaintiffs-Appellants,
v.
GURBIR S. GREWAL, ATTORNEY GENERAL OF
NEW JERSEY, IN HIS OFFICIAL CAPACITY,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Texas.
August 19, 2020, Filed
Before JONES, ELROD, and HIGGINSON, Circuit
Judges.
EDITH H. JONES, Circuit Judge:
This appeal arises from the ongoing efforts of New
Jersey’s Attorney General Gurbir Grewal and several
of his peers to hamstring the plaintiffs’ distribution
of materials related to the 3D printing of firearms. To
2a
Appendix A
defend against their efforts, the plaintiffs filed this
lawsuit, alleging, inter alia, infringement of their First
Amendment rights and state law claims. Grewal countered
with a motion to dismiss for lack of personal jurisdiction.
The district court, relying principally on this court’s
decision in Stroman Realty, Inc. v. Wercinski, 513 F.3d
476 (5th Cir. 2008), granted Grewal’s motion. Stroman,
however, is distinguishable from this case and does not
compel dismissal. Based on well-established principles of
personal jurisdiction, we conclude that Grewal is subject
to the jurisdiction of Texas courts. We REVERSE and
REMAND for further proceedings.
I
Plaintiff Defense Distributed is a Texas company
operated for the purpose of promoting popular access
to firearms. To carry out this purpose, it produces and
makes accessible information related to the 3D printing of
firearms and publishes and distributes such information
to the public. Plaintiff Second Amendment Foundation,
Inc. (“SAF”) is a nationwide, non-profit membership
organization that “promotes the right to keep and bear
arms by supporting education, research, publications, and
legal efforts about the Constitution’s right to privately
own and possess firearms and the consequences of gun
control.” Across the nation, SAF members seek the digital
firearms information created by Defense Distributed,
circulate their own digital firearms information by
utilizing Defense Distributed’s facilities, and republish
digital firearms information independently.
3a
Appendix A
Defense Distributed began distributing files related
to the 3D printing of firearms in December 2012. It did
so by publishing files to its defcad.org and defcad.com
websites and letting visitors freely download them. It also
distributed digital firearms information via mail and at a
brick-and-mortar public library in Austin, Texas. Defense
Distributed’s efforts were initially met with opposition
from the United States Department of State.1 But, after
a period of litigation, the parties reached a settlement
agreement that granted Defense Distributed a license to
publish its files.
Shortly thereafter, nine Attorneys General, including
New Jersey Attorney General Grewal, filed suit on
behalf of their respective states in the Western District
of Washington to enjoin the State Department from
authorizing the release of Defense Distributed’s files.
They argued that the State Department’s license to
Defense Distributed constituted an ultra vires aboutface that violated the Administrative Procedure Act and
jeopardized the states’ statutory and regulatory schemes
for firearms. The Western District of Washington quickly
issued a temporary restraining order, followed closely by
a nationwide preliminary injunction. 2
1. See Defense Distributed v. U.S. Dep’t of State, 838 F.3d
451 (5th Cir. 2016); id. at 462-76 (Jones, J., dissenting).
2. The Attorneys General later filed a motion for summary
judgment, which the district court granted in part. Washington
v. U.S. Dep’t of State, 420 F. Supp. 3d 1130 (W.D. Wash. 2019).
On appeal, the Ninth Circuit found that the case was moot and
thus dismissed for lack of jurisdiction. Washington v. Defense
Distributed, Nos. 20-35030 & 20-35064, 2020 U.S. App. LEXIS
22900, 2020 WL 4332902 (9th Cir. July 21, 2020).
4a
Appendix A
Just before the Attorneys General sued in Washington,
Defense Distributed and SAF brought the instant action
in the Western District of Texas challenging select
enforcement actions taken by the state Attorneys General.
Of relevance to this appeal, plaintiffs alleged these
actions by Grewal: (1) sending a cease-and-desist letter
threatening legal action if Defense Distributed published
its files; (2) sending letters to third-party internet service
providers based in California urging them to terminate
their contracts with Defense Distributed; (3) initiating a
civil lawsuit against Defense Distributed in New Jersey;3
and (4) threatening Defense Distributed with criminal
sanctions at a live press conference. Further, these
actions, coupled with the injunctive orders issued in the
Washington litigation, have caused Defense Distributed to
cease publication of its materials. The plaintiffs asserted,
inter alia, that these actions infringed the exercise of
their First Amendment freedoms and constituted tortious
interference with the State Department’s settlement
agreement.
Grewal moved to dismiss for lack of personal
jurisdiction. 4 The plaintiffs, meanwhile, sought a
3. That lawsuit was removed to federal court before being
administratively terminated in light of the nationwide injunction
issued in Washington. The plaintiffs have likewise sued in New
Jersey, raising the same claims asserted in the case at bar. See
Defense Distributed v. Grewal, D.N.J. No. 3:19-CV-4753. That
case is currently stayed pending resolution of this one.
4. The other state Attorneys General also moved to dismiss,
and the district court granted their motions. On appeal, the
plaintiffs challenge only the judgment related to Grewal.
5a
Appendix A
preliminary injunction. After holding a hearing and
considering the parties’ arguments, the court granted
Grewal’s motion and dismissed the action without
prejudice.
The district court’s order addressed two primary
issues: judicial estoppel and minimum contacts. The
plaintiffs had argued that Grewal should be judicially
estopped from challenging the court’s jurisdiction
because, in the Washington litigation, Grewal asserted
that Defense Distributed had minimum contacts with
Washington, and that argument was inconsistent with
the position taken in Grewal’s motion to dismiss. The
court disagreed, concluding that Grewal’s position in the
Washington case “is in no way inconsistent with [his]
argument here that [he] ha[s] no minimum contacts with
Texas.”
Next, the court determined that the plaintiffs failed
to establish that Grewal had “minimum contacts with
the State of Texas.” The court found most instructive
this court’s decision in Stroman, in which it was held
that sending a cease-and-desist letter into Texas was, by
itself, insufficient to exercise personal jurisdiction over
an out-of-state defendant. Just as in Stroman, the court
explained, Grewal did not “purposefully avail [himself]
of the benefits of Texas law like someone actually ‘doing
business’ in Texas” when he demanded that Defense
Distributed cease publication of its materials. See
Stroman, 513 F.3d at 484. “It follows that [Grewal] could
not have reasonably anticipated being haled into federal
court in Texas to defend [the enforcement of his state’s
6a
Appendix A
laws].” The court rejected the plaintiffs’ attempt to
distinguish Stroman based on Grewal’s additional alleged
contacts, finding that they were either the plaintiffs’
own contacts with Texas or were contacts not “expressly
aimed at Texas.” The district court also rejected the
plaintiffs’ invocation of the “effects test” pronounced in
Calder v. Jones, 465 U.S. 783, 104 S. Ct. 1482, 79 L. Ed.
2d 804 (1984), because it believed only the plaintiffs—and
not Texas more generally—were affected by Grewal’s
enforcement activities. Grewal’s relationship to Texas, in
other words, was a “mere fortuity.”
The plaintiffs’ motion to alter or amend the judgment
was denied, and they timely appealed.
II
In this court, the plaintiffs continue to press the
arguments that the doctrine of judicial estoppel bars
Grewal from arguing against personal jurisdiction, and
Grewal has established sufficient minimum contacts with
Texas to subject him to the jurisdiction of Texas’s courts.
We agree with the second argument and thus need not
address the judicial estoppel claim.
“We review the district court’s dismissal for lack
of personal jurisdiction de novo.” Monkton Ins. Servs.,
Ltd. v. Ritter, 768 F.3d 429, 431 (5th Cir. 2014). At the
motion to dismiss stage, the plaintiffs bear the burden
of presenting sufficient evidence to support a prima
facie case of jurisdiction. Kelly v. Syria Shell Petroleum
Dev. B.V., 213 F.3d 841, 854 (5th Cir. 2000). We “accept
7a
Appendix A
the plaintiff’s uncontroverted, nonconclusional factual
allegations as true and resolve all controverted allegations
in the plaintiff’s favor.” Panda Brandywine Corp. v.
Potomac Elec. Power Co., 253 F.3d 865, 868 (5th Cir. 2001).
Personal jurisdiction exists where the forum state’s
long-arm statute extends to the nonresident defendant
and the exercise of jurisdiction comports with due
process. Carmona v. Leo Ship Mgmt., Inc., 924 F.3d
190, 193 (5th Cir. 2019). “Because Texas’s long-arm
statute is coextensive with the Due Process Clause of the
Fourteenth Amendment, the two inquiries merge.” Id.
Though personal jurisdiction can be general or specific,
this case implicates only the latter. Texas’s long-arm
statute permits the exercise of specific jurisdiction over
any defendant “doing business” in the state, including
defendants who “commit[] a tort in whole or in part in
th[e] state.” Tex. Civ. Prac. & Rem. Code § 17.042.
“ The constitutional requi rement for speci f ic
jurisdiction is that the defendant has ‘minimum contacts’
with the forum state such that imposing a judgment would
not ‘offend traditional notions of fair play and substantial
justice.’” Stroman, 513 F.3d at 484 (quoting Int’l Shoe
Co. v. State of Wash., Office of Unemployment Comp.
& Placement, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90
L. Ed. 95 (1945)). This court has framed the inquiry as
a three-step analysis: “(1) whether the defendant has
minimum contacts with the forum state, i.e., whether
it purposely directed its activities toward the forum
state or purposefully availed itself of the privileges of
conducting activities there; (2) whether the plaintiff’s
8a
Appendix A
cause of action arises out of or results from the defendant’s
forum-related contacts; and (3) whether the exercise of
personal jurisdiction is fair and reasonable.” Seiferth v.
Helicopteros Atuneros, Inc., 472 F.3d 266, 271 (5th Cir.
2006) (quoting Nuovo Pignone, SpA v. STORMAN ASIA
M/V, 310 F.3d 374, 378 (5th Cir. 2002)).
The issue on appeal is whether Grewal has established
sufficient minimum contacts with Texas. The parties’
arguments rely on the interpretation and application of
three cases—Stroman; Wien Air Alaska, Inc. v. Brandt,
195 F.3d 208 (5th Cir. 1999); and Calder v. Jones, 465
U.S. 783, 104 S. Ct. 1482, 79 L. Ed. 2d 804 (1984). Grewal
argues that Stroman controls here and compels the
conclusion that he lacks the minimum contacts necessary
to justify the exercise of jurisdiction. The plaintiffs aver
that Stroman is distinguishable and posit that the district
court’s judgment runs counter to principles announced in
Wien Air Alaska and Calder. We consider each of these
cases in turn.
Stroman Realty, Inc. was a Texas-based real estate
firm that sought relief in Texas federal court from
attempts by the Commissioner of the Arizona Department
of Real Estate to exercise regulatory authority over the
company’s timeshare sales business. Stroman, 513 F.3d
at 479. “[T]he totality of the Commissioner’s contacts
with Texas involve[d] a cease and desist order and
correspondence with Stroman’s attorneys.” Id. at 485.
This court concluded that “[b]ased on such minimal known
contacts, . . . [the] nonresident state official . . . could not
have reasonably anticipated being haled into federal court
9a
Appendix A
in Texas to defend her enforcement of an Arizona statute.”
Id. at 484.
This court disagreed with Stroman’s invocation of
the Calder “effects test,” as we observed that this circuit
has “declined to allow jurisdiction for even an intentional
tort where the only jurisdictional basis is the alleged
harm to a Texas resident.” Id. at 486. “By seeking to
regulate Stroman’s activities involving Arizona residents
or property,” the court explained, “the Commissioner
is not ‘expressly aim[ing]’ her actions at Texas.” Id.
(alteration in original) (quoting Calder, 465 U.S. at 789,
104 S. Ct. at 1487). Rather, “it was Stroman who chose
to market Arizona properties and transact business
with Arizona residents. Arizona is simply attempting to
uniformly apply its laws.” Id. Put another way, the nexus
to Texas was “based entirely on the unilateral actions and
decisions of Stroman, not the Commissioner.” Id. And “[i]n
general, ‘[t]he unilateral activity of those who claim some
relationship with a nonresident defendant cannot satisfy
the requirement of contact with the forum State.’” Id.
(second alteration in original) (quoting Hanson v. Denckla,
357 U.S. 235, 253, 78 S. Ct. 1228, 1239-40, 2 L. Ed. 2d
1283 (1958)). To embrace Stroman’s approach, the court
warned, would subject state officials seeking to enforce
their state’s laws “to suit in any state where the validity
of her state’s laws were in question.” Id.
The facts of this case bear a resemblance to those
in Stroman. “[T]he totality of [Grewal’s] contacts with
Texas involves a cease and desist order” sent to Defense
Distributed. Id. at 484. And Grewal’s purpose in issuing
10a
Appendix A
the cease-and-desist letter ostensibly was to enforce
New Jersey public nuisance and negligence laws (more
on this below). Further, Grewal, like the Commissioner
in Stroman, was sued in his official capacity and did
not derive commercial benefits from performing his
governmental function.
While acknowledging some of these factual similarities,
the plaintiffs contend that Stroman is distinguishable
principally because the cease-and-desist letter at issue
in Stroman focused on activities occurring outside
Texas whereas Grewal’s cease-and-desist letter focused
on activities occurring inside Texas. But Stroman
expressly forecloses this distinction. “Although it may be
true that the Commissioner’s action against Stroman is
based upon conduct which occurred entirely in Texas,
we cannot find, as Stroman urges, that the Commissioner
has purposefully directed her conduct at Texas. . . . [T]he
Commissioner, by proceeding with the cease and desist
order, is essentially asserting nationwide authority over
any real estate transactions involving Arizona residents
or property.” Id. at 485-86 (emphasis added).
The plaintiffs also maintain that Stroman is
distinguishable because Grewal did more than just send
a cease-and-desist letter. He “(1) obtained a nationwide
injunction that governs the State of Texas itself and
everyone in it, (2) threatened companies that contracted to
provide internet security services for Defense Distributed,
and last but not least, (3) stood at a live broadcast’s
podium to call out Defense Distributed’s founder by name
and promise that he would ‘come after’ ‘anyone who is
11a
Appendix A
contemplating making a printable gun’ and ‘the next
ghost gun company.’” None of these actions, however,
represent direct contacts with Texas. 5 The nationwide
injunction is just that—a nationwide order not targeting
Texas but rather the plaintiffs’ nationwide operations. Cf.
J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 880-87,
131 S. Ct. 2780, 2787-91, 180 L. Ed. 2d 765 (2011) (rejecting
jurisdiction based on the defendant’s nationwide product
distribution system where the defendant did not otherwise
manifest an intent to benefit from or submit to the laws of
the forum state). The companies Grewal threatened are
based in California, not Texas, and the broadcast event
the plaintiffs reference took place in New Jersey.
Stroman, however, is distinguishable in at least two
key respects. First, many of the plaintiffs’ claims are
based on Grewal’s cease-and-desist letter. In contrast,
Stroman’s claim was that “Arizona’s attempted exercise
of regulatory jurisdiction to license timeshare resales
violated the Commerce Clause by discriminatorily
and unduly burdening nonresident participation in the
interstate secondary timeshare market.” Stroman, 513
F.3d at 481. Stroman’s claim, in other words, was more a
product of Arizona’s regulatory scheme than it was the
cease-and-desist letter itself. Not so for the plaintiffs’
claims here, many of which are based on injuries stemming
solely and directly from Grewal’s cease-and-desist letter.
Grewal’s contact with Texas is more relevant to the
personal jurisdiction inquiry than was the cease-anddesist letter analyzed in Stroman.
5. But, as explained below, these actions affirm Grewal’s
intention to undermine Defense Distributed’s operations and have
significant effects on Texas.
12a
Appendix A
Second, and more important, Stroman found that
the Arizona public official did not purposefully direct
her conduct at Texas because she was simply “asserting
nationwide authority over any real estate transactions
involving Arizona residents or property.” Id. at 486.
The contrary is alleged here. Grewal’s assertion of legal
authority is much broader. He does not cabin his request
by commanding the plaintiffs to stop publishing materials
to New Jersey residents; he instead demands that the
plaintiffs cease publication of their materials generally.
For example, in his cease-and-desist letter, Grewal
states that the plaintiffs’ “widespread dissemination
of printable-gun computer files is negligent because it
encourages an illegal gun market, which will foreseeably
lead to increased crime and violence in New Jersey.”
He accordingly requests that Defense Distributed “halt
publication of the printable-gun computer files” without
specifying that Defense Distributed cease marketing its
materials to New Jersey residents.6
Grewal’s conduct beyond sending the cease-and-desist
letter confirms his intent to crush Defense Distributed’s
6. Grewal’s letter opens with the command “to cease and
desist from publishing printable-gun computer files for use by New
Jersey residents.” Perhaps this could be interpreted as a limited
instruction. But, as just noted, elsewhere, Grewal orders Defense
Distributed to “halt publication of the printable-gun computer
files” lock, stock, and barrel. This latter command better captures
the general tone of the cease-and-desist letter. And regardless, at
this stage of the litigation, we are required to resolve all factual
disputes in favor of the plaintiff. Panda Brandywine Corp., 253
F.3d at 868.
13a
Appendix A
operations and not simply limit the dissemination of
digital files in New Jersey. Grewal’s enforcement actions
are selective. He has not targeted the many similarlysituated persons who publish Defense Distributed’s files
on the internet.7 Cf. id. (stressing that Arizona was “simply
attempting to uniformly apply its laws”) (emphasis added).
Instead, he has focused solely on Defense Distributed.
Perhaps nowhere is this better illustrated than in Grewal’s
efforts to enjoin the national distribution of Defense
Distributed’s files by suing in Washington, far from his
or the plaintiffs’ home state. Grewal has also threatened
Defense Distributed’s founder, Cody Wilson, by name,
promising to “come after” “anyone who is contemplating
making a printable gun” and “the next ghost gun
company.” Together, these actions confirm Grewal’s intent
to force Defense Distributed to close shop.
Relatedly, the intended effects on the plaintiffs and,
by extension, the intended effects on Texas residents
who would benefit from the plaintiffs’ activities, are much
greater than the effects at issue in Stroman. Whereas
the Arizona Commissioner only requested that Stroman
acquire a license before doing business in the state,
Grewal seeks to bar Defense Distributed from publishing
its materials anywhere, not just in New Jersey. Grewal’s
7. As Defense Distributed notes in its complaint, other
publishers continue to publish Defense Distributed’s files to
generally-accessible internet websites. “Such files can be located
with a simple Google search.” See also Defense Distributed,
838 F.3d at 462 (Jones, J., dissenting) (observing that Defense
Distributed’s files were downloaded “hundreds of thousands of
times”).
14a
Appendix A
actions, moreover, have all been taken in the name of law
and order. He has projected himself across state lines
and asserted a pseudo-national executive authority that
the public official in Stroman never asserted. Because
Stroman is distinguishable, and thus not dispositive, we
consider the applicability of Wien Air Alaska and Calder. 8
In Wien Air Alaska, this court considered whether the
defendant, Brandt, had sufficient contacts with Texas to
subject him to the jurisdiction of Texas’s courts. Relying
largely on Calder’s “effects test,” the court concluded
that he did. “Brandt performed several tortious actions
outside of Texas directed towards Wien Air in Texas.
These activities had foreseeable effects in the forum
and were directed at the forum.” Wien Air Alaska, 195
F.3d at 212. Brandt’s contacts included “letters, faxes,
and phone calls to Texas . . . whose contents contained
fraudulent misrepresentations and promises and whose
contents failed to disclose material information.” Id.
Brandt argued that these communications, standing
alone, were insufficient to support a finding of minimum
contacts. Id. at 213. The court disagreed. “When the
actual content of communications with a forum gives rise
8. The separate concurrence overstates our reliance on
these cases. We do not consider them because they are factually
analogous, but because they establish principles of law applicable
to this case. Relatedly, we do not rely on an effects test unmoored
from a minimum contacts analysis, as the concurrence suggests.
The exercise of personal jurisdiction over Grewal is proper because
Grewal established sufficient minimum contacts with Texas. The
legal principles articulated in Wien Air Alaska and Calder (among
other cases) guide us to this conclusion.
15a
Appendix A
to intentional tort causes of action, this alone constitutes
purposeful availment.” Id. “The defendant is purposefully
availing himself of ‘the privilege of causing a consequence’
in Texas.” Id. “It is of no use to say that the plaintiff
‘fortuitously’ resided in Texas. . . . If this argument were
valid in the tort context, the defendant could mail a bomb
to a person in Texas but claim Texas had no jurisdiction
because it was fortuitous that the victim’s zip code was
in Texas.” Id.
Similarly, Grewal’s communication with Defense
Distributed, specifically the cease-and-desist letter
delivered into Texas, itself gives rise to distinct tort
causes of action. Section 1983’s intentional “tort” of
unconstitutional censorship and intentional interference
with a contractual relationship are just two possibilities.
And when “the actual content of communications with a
forum gives rise to intentional tort causes of action, this
alone constitutes purposeful availment.” Id.
Grewal argues that the plaintiffs cherry-picked this
legal proposition and ignored glaring factual differences
between Wien Air Alaska and this case. We disagree with
Grewal’s initial assertion, but it is correct that the facts in
the two cases are distinguishable. Even so, the principles
articulated in Wien Air Alaska remain relevant, as do the
principles announced in Calder.
Calder was a libel suit instituted by a California
actress in California state court against a reporter and
an editor, both of whom worked for the National Enquirer
at its headquarters in Florida. Calder, 465 U.S. at 784-
16a
Appendix A
85, 104 S. Ct. at 1484. The plaintiff’s libel claims were
based on an article written and edited by the defendants
in Florida for publication in the National Enquirer, a
national weekly newspaper with a California circulation
of roughly 600,000. Id. The California Court of Appeals
held that California’s assertion of jurisdiction over the
defendants was consistent with due process, and the
Supreme Court affirmed. Although the Court recognized
that the defendants’ activities “focus[ed]” on the plaintiff,
the jurisdiction inquiry turned on “the relationship among
the defendant, the forum, and the litigation.” Id. at 788
(quoting Shaffer v. Heitner, 433 U.S. 186, 204, 97 S. Ct.
2569, 2579, 53 L. Ed. 2d 683 (1977)). Thus, the Court
focused on the contacts the defendants had created with
California (and not just with the plaintiff). It found those
contacts to be ample. The defendants relied on phone
calls to “California sources” for the information in their
article; they wrote the story about the plaintiff’s activities
in California; they caused reputational injury in California
by writing an allegedly libelous article that was widely
circulated in the state; and the “brunt” of that injury was
suffered by the plaintiff in that state. Id. at 788-89. “In
sum, California [wa]s the focal point both of the story and
of the harm suffered.” Id. at 789. Jurisdiction over the
defendants was “therefore proper in California based on
the ‘effects’ of their Florida conduct in California.” Id.
Thirty years later, the Court revisited Calder and
explained the scope of its holding:
The crux of Calder was that the reputationbased “effects” of the alleged libel connected
17a
Appendix A
the defendants to California, not just to the
plaintiff. The strength of that connection was
largely a function of the nature of the libel
tort. . . . [T]he reputational injury caused by
the defendants’ story would not have occurred
but for the fact that the defendants wrote an
article for publication in California that was
read by a large number of California citizens.
Indeed, because publication to third persons is
a necessary element of libel, . . . the defendants’
intentional tort actually occurred in California.
. . . In this way, the “effects” caused by the
defendants’ article—i.e., the injury to the
plaintiff’s reputation in the estimation of the
California public—connected the defendants’
conduct to California, not just to a plaintiff who
lived there. That connection, combined with the
various facts that gave the article a California
focus, sufficed to authorize the California
court’s exercise of jurisdiction.
Walden v. Fiore, 571 U.S. 277, 287-88, 134 S. Ct. 1115,
1123-24, 188 L. Ed. 2d 12 (2014) (emphasis in original).
Walden makes clear that Calder remains good law. But
Walden also emphasizes that it is the defendant’s contacts
with the forum state, and not just the plaintiff, that
must drive the personal jurisdiction analysis. Id. at 285
(“[T]he plaintiff cannot be the only link between the
defendant and the forum.”); id. at 286 (“A forum State’s
exercise of jurisdiction over an out-of-state intentional
tortfeasor must be based on intentional conduct by the
defendant that creates the necessary contacts with the
18a
Appendix A
forum.”). It is insufficient for the defendant to simply have
knowledge of a plaintiffs’ “strong forum connections.”
Id. at 289. That is, “an injury is jurisdictionally relevant
only insofar as it shows that the defendant has formed a
contact with the forum State.” Id. at 290; see also BristolMyers Squibb Co. v. Super. Ct. of Cal., S.F. Cty., 137 S.
Ct. 1773, 1780, 198 L. Ed. 2d 395 (2017) (“[T]here must
be an affiliation between the forum and the underlying
controversy, principally, an activity or an occurrence that
takes place in the forum State and is therefore subject to
the State’s regulation.”) (alteration in original omitted)
(internal quotation marks and citation omitted).
Returning to the present case, Grewal argues that,
unlike in Calder, where the content of the article served
as the basis for the libel claim, the plaintiffs attribute
their injury to Grewal’s enforcement action and not the
cease-and-desist letter. Grewal misreads the plaintiffs’
complaint: they allege that Grewal’s letter had a chilling
effect on the exercise of their First Amendment rights
(among other constitutional and Texas law violations). That
chilling effect, in turn, caused them to cease publication
and reduced Texans’ access to the materials the plaintiffs
seek to publish. The statewide impact is not unlike that
of the defamatory article at issue in Calder, which shaped
Californians’ view of the defamed actress.9 In this sense,
Grewal created contacts with Texas and not just the
plaintiffs.
9. Censorship, like libel, is damaging not just to the speaker,
but to surrounding audiences. And like libel, censorship’s harm
occurs not just where it originates, but where it arrives.
19a
Appendix A
Grewal’s contacts with Texas, moreover, are more
than a “mere fortuity,” as the district court found. Grewal
intentionally mailed the cease-and-desist letter into Texas,
a contact Walden specifically mentioned as relevant to the
personal jurisdiction inquiry. See Walden, 571 U.S. at 285
(“[P]hysical entry into the State—either by the defendant
in person or through an agent, goods, mail, or some other
means—is certainly relevant contact.” (emphasis added)).
Further, that contact alone gave rise to distinct tort causes
of action. Grewal knew that the cease-and-desist letter
would “have a potentially devastating impact” on the
plaintiffs—and, by extension, those who wished to benefit
from the plaintiffs’ activities, including Texas residents.
Calder, 465 U.S. at 789. And he “knew that the brunt of
[the] injury would be felt by [the plaintiffs] in [Texas].” Id.
at 789-90; see also Wien Air Alaska, 195 F.3d at 211 (“The
foreseeable effects of a tort ‘are to be assessed as part of
the analysis of the defendant’s relevant contacts with the
forum.’”) (emphasis in original) (quoting Allred v. Moore
& Peterson, 117 F.3d 278, 287 (5th Cir. 1997)).
Based on the foregoing analysis, the principles
discussed in Wein Air Alaska and Calder (and reaffirmed
in Walden) control. Grewal has established sufficient
minimum contacts with Texas to subject him to the
jurisdiction of Texas’s courts.10 Of course, minimum
10. We do not intend to convey that sending a cease-and-desist
letter into a forum always subjects the sender to jurisdiction in
the forum state. Cf. Yahoo! Inc. v. La Ligue Contre Le Racisme
Et L’Antisemitisme, 433 F.3d 1199, 1208 (9th Cir. 2006) (“There
are strong policy reasons to encourage cease and desist letters.
They are normally used to warn an alleged rights infringer that
20a
Appendix A
contacts in-and-of themselves are insufficient to create
jurisdiction. The cause of action must arise from the
forum-related contacts and the exercise of personal
jurisdiction must be fair and reasonable. Seiferth, 472
F.3d at 271. Grewal takes issue with the second of these
two requirements and contends that a judgment in the
plaintiffs’ favor would offend traditional notions of fair
play and substantial justice. We are skeptical of this
argument. See DeJoria v. Maghreb Petroleum Expl., S.A.,
804 F.3d 373, 388 (5th Cir. 2015) (“If a nonresident has
minimum contacts with the forum, rarely will the exercise
of jurisdiction over the nonresident not comport with
traditional notions of fair play and substantial justice.”)
(internal quotation marks omitted) (quoting Moncrief
its conduct, if continued, will be challenged in a legal proceeding,
and to facilitate resolution of a dispute without resort to litigation.
If the price of sending a cease and desist letter is that the sender
thereby subjects itself to jurisdiction in the forum of the alleged
rights infringer, the rights holder will be strongly encouraged to
file suit in its home forum without attempting first to resolve the
dispute informally by means of a letter.”). Indeed, as our review
of Stroman makes clear, sending a cease-and-desist letter may,
under different circumstances, be insufficient to establish personal
jurisdiction. See also Halliburton Energy Servs., Inc. v. Ironshore
Specialty Ins., 921 F.3d 522, 542 (5th Cir. 2019) (reaching the
same conclusion as Stroman, albeit under facts that are markedly
different from the facts here). Today’s holding is derivative of the
specific language used in Grewal’s cease-and-desist letter coupled
with other actions he took that, together, demonstrate his intent to
gut Defense Distributed’s operations and restrict Texans’ access
to Defense Distributed’s materials. That the plaintiffs’ injuries
are directly attributable to the cease-and-desist letter itself also
weighs heavily in our analysis.
21a
Appendix A
Oil Int’l Inc. v. OAO Gazprom, 414 S.W.3d 142, 154-55
(Tex. 2013)). But in any event, Grewal did not raise this
argument below, either in his initial motion to dismiss or in
his reply. “The general rule of this court is that arguments
not raised before the district court are waived and will
not be considered on appeal.” Celanese Corp. v. Martin K.
Eby Constr. Co., 620 F.3d 529, 531 (5th Cir. 2010); see also
Broad. Music, Inc. v. M.T.S. Enters., Inc., 811 F.2d 278,
281 (5th Cir. 1987) (“[O]bjections to personal jurisdiction
or to service of process must be raised in a timely fashion,
i.e., as a party’s first pleading in the case, or they are
waived.”). We follow that rule here. The same goes for
Grewal’s argument that “[u]nder the plain text of the
Texas long-arm statute, and the analysis by Stroman and
other courts, it is not proper for Texas courts to exercise
jurisdiction over a state official sued in his official capacity
regarding his decision to enforce his state’s law.” Grewal
should have raised these arguments timely if he intended
to rely on them in this court.
III
Questions of personal jurisdiction typically do not
lend themselves to broad generalizations. See Miss.
Interstate Express, Inc. v. Transpo, Inc., 681 F.2d 1003,
1006 (5th Cir. 1982) (“[W]hether the minimum contacts
are sufficient to justify subjection of the non-resident to
suit in the forum is determined not on a mechanical and
quantitative test, but rather under the particular facts
upon the quality and nature of the activity with relation
to the forum state.”). They require an understanding of
particular facts and an application of general principles.
22a
Appendix A
Having carefully considered the facts of this case, we
conclude that Stroman is distinguishable and thus not
dispositive. Applying the principles discussed in Wien Air
Alaska and Calder, we hold that jurisdiction over Grewal is
proper. The judgment of the district court is REVERSED
and the case is REMANDED for further proceedings.
23a
Appendix A
STEPHEN A. HIGGINSON, Circuit Judge, concurring:
I agree that the allegations of Attorney General
Grewal attempting to prevent Texas residents from
publishing files online to individuals outside of New Jersey
constitute purposeful direction of his activities toward
the State of Texas such that he should have “reasonably
anticipate[ed] being haled into court” there. World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.
Ct. 559, 62 L. Ed. 2d 490 (1980). Unlike the Commissioner
of the Department of Real Estate in Stroman Realty,
Incorporated v. Wercinski, who was “simply attempting to
uniformly apply its [state] laws” against those who “chose
to market Arizona properties and transact business with
Arizona residents,” Grewal is alleged to have attempted to
reach conduct that did not involve New Jersey residents
or assets at all.1 513 F.3d 476, 486 (5th Cir. 2008). Thus,
I agree that jurisdiction exists in this case where it did
not in Stroman. But I find the limiting principles given in
1. Importantly, at the motion to dismiss phase, a plaintiff’s
allegations must be taken as true. Wien Air Alaska, Inc. v. Brandt,
195 F.3d 208, 211 (5th Cir. 1999) (“Where facts are disputed, the
plaintiff presenting a prima facie case is entitled to have the
conflicts resolved in his favor.”). Therefore, as the majority points
out, we do not resolve the factual dispute of whether Grewal did
indeed threaten to enforce New Jersey nuisance laws against
residents of Texas distributing the online files to residents of states
other than New Jersey. If, in fact, Grewal attempted to prevent
the distribution of the files only within the state of New Jersey as
counsel forcefully contended in oral argument, the case would be
analogous to Stroman, in which Arizona’s Commissioner limited
her enforcement to those engaging in real estate transactions in
the State of Arizona.
24a
Appendix A
Stroman protecting state government officials, as should
be assured reciprocally for Attorneys General from our
three states, vitally important and binding in this circuit
even after our holding today.
I disfavor parallels between this case and Wien Air
Alaska, Inc. v. Brandt, 195 F.3d 208 (5th Cir. 1999) or
Calder v. Jones, 465 U.S. 783, 104 S. Ct. 1482, 79 L. Ed. 2d
804 (1984). Wien Air Alaska involved a commercial dispute
that is largely incomparable to the state law enforcement
in this case. As we pointed out in Stroman, “the absence
of ‘commercial transactions in interstate commerce’
in which a defendant ‘sought a commercial benefit’
preclude[s] an analogy to commercial activity cases as a
basis for assertion of personal jurisdiction.” 513 F.3d at
485 (quoting Kulko v. Superior Court, 436 U.S. 84, 97, 98
S. Ct. 1690, 56 L. Ed. 2d 132 (1978)). Wien Air Alaska is
also distinguishable because that commercial defendant
engaged in multiple types of interactions beyond a ceaseand-desist letter. 195 F.3d at 212-14. He contacted the
plaintiff “numerous” times via “letters, faxes, and phone
calls to Texas.” Id. at 212. He also visited Texas and held
other meetings in person with the plaintiff as part of an
ongoing attorney-client relationship with the plaintiff.
Id. at 214. This ongoing business relationship is a more
natural fit for the “doing business” requirement in the
Texas long-arm statute. Tex. Civ. Prac. & Rem. Code §
17.042. Any stray language in Wien Air Alaska implying
that a single cease-and-desist letter, even one that directly
relates to the plaintiff’s cause of action, creates personal
jurisdiction is not tied to the facts of that case.
25a
Appendix A
The comparison to Calder is similarly inapt, above
all if it is offered by litigants to diminish the state
sovereignty principles underlying Stroman. That case
involved personal jurisdiction based on the “effects” of
the commercial defendant’s conduct in the forum, rather
than the typical minimum contact test. 465 U.S. at 789.
This form of jurisdiction is “rare,” and the Supreme Court
has moved away from an effects-based analysis, instead
requiring “active minimum contacts with the forum state.”
Stroman, 513 F.3d at 486, 489. In Walden v. Fiore, the
Court explained that Calder should not be interpreted to
confer jurisdiction whenever an individual is accused of
committing a tort against a resident of the forum state:
Calder made clear that mere injury to a forum
resident is not a sufficient connection to the
forum. Regardless of where a plaintiff lives
or works, an injury is jurisdictionally relevant
only insofar as it shows that the defendant
has formed a contact with the forum State.
The proper question is not where the plaintiff
experienced a particular injury or effect but
whether the defendant’s conduct connects him
to the forum in a meaningful way.
571 U.S. 277, 290, 134 S. Ct. 1115, 188 L. Ed. 2d 12 (2014).
We have repeatedly refused to find jurisdiction based on
conduct toward an individual who happens to be located
in a state—even conduct that causes injury—where the
conduct is not expressly aimed at the state. See Stroman,
513 F.3d at 486 (“We have declined to allow jurisdiction
for even an intentional tort where the only jurisdictional
26a
Appendix A
basis is the alleged harm to a Texas resident.”); Wien
Air Alaska, 195 F.3d at 212 (“Foreseeable injury alone
is not sufficient to confer specific jurisdiction, absent the
direction of specific acts toward the forum.”); see also
Walden v. Fiore, 571 U.S. 277, 285, 134 S. Ct. 1115, 188 L.
Ed. 2d 12 (2014) (“[O]ur ‘minimum contacts’ analysis looks
to the defendant’s contacts with the forum State itself, not
the defendant’s contacts with persons who reside there.”).
Therefore, I do not agree that Grewal’s cease-and-desist
letter had a strong enough “effect” in Texas to create
jurisdiction.
Calder was unique in that there was evidence in the
record that the defendant’s conduct affected not only the
plaintiff but also at least 600,000 others in the forum
state. Calder, 465 U.S. at 785 (stating that the circulation
of the National Enquirer in California was 600,000 at
the time of the alleged tort); see also Walden, 571 U.S.
at 287 (“The strength of th[e] connection [in Calder]
was largely a function of the nature of the libel tort.”).
Conversely, Grewal’s cease-and-desist letter injured only
the plaintiffs because it threatened enforcement against
only them. 2 Plaintiffs cannot rely on their connections
to Texas alone to show an effect within the state based
on Grewal’s actions toward them as individuals he knew
to be Texans. See Walden, 571 U.S. at 289 (“Petitioner’s
actions in Georgia did not create sufficient contacts with
Nevada simply because he allegedly directed his conduct
2. If we were to analyze the effects of Grewal’s conduct by
looking at the number of people affected by plaintiffs’ compliance
with his demands, the effects within the larger Texas population
would be minimal because Defense Distributed admits that the
files remain available online.
27a
Appendix A
at plaintiffs whom he knew had Nevada connections.”).
Though he affirmatively communicated with Texas
residents, “none of [Grewal’s] challenged conduct had
anything to do with [Texas] itself.” Id.
The majority contends that this is the unique case
in which the effect in the forum is significant enough to
create jurisdiction because the plaintiffs’ injuries are more
directly attributable to the letter itself than in Stroman.
This characterization is in tension with Stroman’s holding
that “[t]here is no question that the underlying cause
of action ‘arises’ out of the Commissioner’s cease and
desist order to Stroman in Texas.” Stroman, 513 F.3d at
487. The majority does not explain how this letter more
directly causes the plaintiffs’ alleged injuries than the
letter in Stroman, above all when Grewal’s letter begins:
“You are directed to cease and desist from publishing
printable-gun computer files for use by New Jersey
residents.” (emphasis added). I am therefore unconvinced
that “effects” jurisdiction based on Grewal’s alleged tort
is appropriate; I would instead employ the traditional
minimum contacts analysis to find that the aggregate of
Grewal’s alleged conduct affirmatively reached out into
Texas by attempting to enforce state law even when New
Jersey citizens or property were not involved.
For these reasons, I agree that Grewal’s conduct
created minimum contacts with the State of Texas, but
I do not agree that Wien Air Alaska and Calder control
the outcome of this case. 3
3. Even if personal jurisdiction exists, there is now parallel
litigation in Texas and New Jersey, and the parties, and either
district court, may seek transfer under 28 U.S.C. § 1404(a). Our
28a
Appendix A
observation in Stroman was that “[w]hen a state defends its laws
in a faraway forum, it loses the benefit of having the laws examined
by local state or federal courts—courts that have special expertise
interpreting its laws.” 513 F.3d at 487. From my review of cases
against government officials who attempt to enforce a state law, so
for no personal or commercial profit, the litigation has taken place
in the governmental official’s state. See generally Backpage.com,
LLC v. Dart, 807 F.3d 229 (7th Cir. 2015) (operator of classified
advertising website brought action alleging that the Cook County
Sheriff violated his First Amendment rights in the Northern District
of Illinois); Okwedy v. Molinari, 333 F.3d 339 (2d Cir. 2003) (religious
organization and pastor sued Staten Island borough president
alleging violations of their First Amendment rights in the Eastern
District of New York).
29a
B the united
Appendix B —Appendix
order of
states DISTRICT COURT FOR THE WESTERN
DISTRICT OF TEXAS, austin division,
DATED JANUARY 30, 2019
IN THE United States District Court
for the Western District of Texas,
Austin Division
1:18-CV-637-RP
DEFENSE DISTRIBUTED and SECOND
AMENDMENT FOUNDATION, INC.,
Plaintiffs,
v.
GURBIR S. GREWAL, in his official
capacity as New Jersey Attorney
General, MICHAEL FEUER, in his official
capacity as Los Angeles City Attorney,
ANDREW CUOMO, in his official capacity
as New York Governor, MATTHEW DENN,
in his official capacity as Attorney
General of the State of Delaware,
JOSH SHAPIRO, in his official capacity as
Attorney General of Pennsylvania, and
THOMAS WOLF, in his official capacity as
Pennsylvania Governor,
Defendants.
ORDER
Before the Court are Defendant Feuer’s Motion to
Dismiss, (Feuer Mot., Dkt. 50), Defendant Cuomo’s Motion
30a
Appendix B
to Dismiss, (Cuomo Mot., Dkt. 55), Defendants Grewal and
Denn’s Motion to Dismiss, (Grewal & Denn Mot., Dkt. 57),
Defendants Wolf and Shapiro’s Motion to Dismiss, (Wolf &
Shapiro Mot., Dkt. 75), Plaintiffs’ responses to each motion,
(Dkts. 59, 73, 86),1 and Defendants’ respective replies,
(Dkts. 76, 79, 82, 90). Having considered the parties’ briefs,
the record, and relevant law, the Court finds that it lacks
personal jurisdiction over each Defendant. Accordingly,
the Court will grant the Defendants’ motions to dismiss.
I. BACKGROUND
Plaintiff Defense Distributed is a Texas corporation
whose mission is to “defend[ ] the American civil liberty
of popular access to arms,” a mission it furthers by
“publishing information regarding the production of
arms to the general public.” (Am. Compl., Dkt. 23 ¶ 10).
Part of what Defense Distributed has published includes
“computer-aided design (CAD) data files that can be used
to manufacture a virtually undetectable, untraceable gun
with a 3D printer.” (Feuer Mot., Dkt. 50, at 3). Defense
Distributed’s primary method of distributing these files
is by hosting them on its website, DEFCAD, for visitors
to download. (Am. Compl., Dkt. 23 ¶ 11; Heindorff
Decl., Dkt. 65-26 ¶ 8). Plaintiff Second Amendment
Foundation, Inc. (“Second Amendment Foundation”) is
a non-profit organization whose members seek to obtain
the information published by Defense Distributed. (Am.
Compl., Dkt. 23 ¶¶ 12-13).
1. Plaintiffs filed a combined response to the motions to dismiss
filed by Defendant Cuomo and Defendants Grewal and Denn. (See
Dkt. 73).
31a
Appendix B
Defense Distributed began publishing CAD files
related to the 3D printing of firearms in December 2012.
(Wilson Decl., Dkt. 65-23 ¶ 3; Heindorff Decl., Dkt. 6526 ¶ 8). In May 2013, the Directorate of Defense Trade
Controls (“DDTC”), part of the U.S. State Department,
sent a letter to Defense Distributed instructing them to
remove certain CAD files from the DEFCAD website. (See
State Dept. Letter, Heindorff Decl., Dkt. 65-26, at 19-21).
The letter stated that Defense Distributed was required
to seek prior authorization before publishing these files
because they may have contained information subject to
the Arms Export Control Act (“AECA”) and the AECA’s
implementing regulations, the International Traffic in
Arms Regulations (“ITAR”). (See id. at 19). Defense
Distributed complied with the DDTC’s instructions and
sought authorization to publish the specified CAD files.
(Req. Jud. Not., Dkt. 77, at 7). The DDTC failed to timely
rule on Defense Distributed’s request, and the matter
of Defense Distributed, et al., v. U.S. Dept. of State, et
al., 1:15-CV-372-RP (W.D. Tex) (Defense Distributed I)
followed. In that case, Plaintiffs challenged the ITAR
provisions regulating the publication of the CAD files
(hereafter, the “Defense Distributed I files”) on the
Internet. (Id.).
Ultimately, the parties settled. The parties’ Settlement
Agreement provided that the State Department would
issue a license permitting the plaintiffs to publish
the Defense Distributed I files on the Internet. (See
Settlement Agreement, Heindorff Decl., Dkt. 65-26, at 2325). This license issued on July 27, 2018. (Id. ¶ 18). Three
days later, this Court dismissed the Defense Distributed
I action pursuant to the parties’ stipulated dismissal with
32a
Appendix B
prejudice. (See Req. Jud. Not., Dkt. 77, at 40). That same
day, however, nine Attorneys General from eight States
and the District of Columbia filed suit in the United States
District Court for the Western District of Washington
to enjoin the State Department from performing the
terms of the Settlement Agreement (the “Washington
Action”). 2 (Am. Compl., Dkt. 23 ¶¶ 59-60). The Washington
Court issued a temporary restraining order on July 31,
and a nationwide preliminary injunction on August 27,
enjoining the State Department from modifying the ITAR
regulations to allow Defense Distributed to publish the
Defense Distributed I files. (Id. ¶¶ 62-63). The preliminary
injunction remains in effect, the Washington Action is
currently pending, and Defense Distributed has ceased
publishing CAD files on the Internet.
The instant action concerns several civil and criminal
enforcement actions taken by the Defendant state officials
in the wake of the Defense Distributed I Settlement
Agreement. These actions include:
(1) sending cease-and-desist letters threatening
legal action if Defense Distributed does not
cease publishing the Defense Distributed I
files;
(2) sending letters to third-party companies
that provide internet security services to
Defense Distributed;
2. The Washington Action is currently docketed as State of
Washington, et al., v. United States Dept. of State, et al., No. 2:18-CV1115-RSL (W.D. Wash.).
33a
Appendix B
(3) initiating civil lawsuits against Defense
Distributed;
(4) threatening to enforce a criminal law
against Defense Distributed;
(5) i s s u i n g p r e s s r e l e a s e s r e g a r d i n g
commitments and efforts to prevent Defense
Distributed from publishing the Defense
Distributed I files;
(6) placing a telephone call with Defense
Distr ibuted to demand that Defense
Distributed stop publishing the Defense
Distributed I files; and
(7) filing a letter with this Court in support of a
motion to intervene in Defense Distributed I.
(See id. ¶¶ 75-115; Mot. Prelim. Inj., Dkt. 67, at 30).
Plaintiffs allege that these actions are part of a
“coordinated and politically-fueled campaign to censor
Defense Distributed.” (Am. Compl., Dkt. 23 ¶ 5). As
explained below, the Court finds that none of the above
actions establish minimum contacts between any of the
Defendants and Texas.
II. LEGAL STANDARD AND DISCUSSION
Each Defendant to this action challenges this Court’s
exercise of personal jurisdiction over him. “Requiring
34a
Appendix B
a court to have personal jurisdiction over a party [is] a
matter of constitutional due process” designed to “protect[ ]
an individual’s liberty interest in not being subject to the
binding judgment of a forum with which he has established
no meaningful contacts, ties, or relations.” First Inv. Corp.
v. Fujian Mawei Shipbuilding, Ltd., 703 F.3d 742, 749
(5th Cir. 2012) (citation and quotation marks omitted).
Under Federal Rule of Civil Procedure 12(b)(2), the party
invoking the power of the court (here, Plaintiffs) bears the
burden of making a prima facie showing that personal
jurisdiction is proper. Monkton Ins. Servs. v. Ritter,
768 F.3d 429, 431 (5th Cir. 2014). To make this showing,
“the plaintiff must show that the nonresident defendant
purposefully availed itself of the benefits and protections
of the forum state by establishing ‘minimum contacts’
with the forum state.” Id. (citation omitted) (cleaned up).
“Sufficient minimum contacts will give rise to either
specific or general jurisdiction.” Id. (citation omitted).
All Defendants argue, and Plaintiffs do not dispute, that
this Court does not have general jurisdiction over them. 3
Accordingly, Plaintiffs must show that the exercise of
specific jurisdiction over each Defendant is proper.
With respect to specific jurisdiction, the Fifth Circuit
applies a three-step analysis: “(1) whether the defendant
has minimum contacts with the forum state, i.e., whether
it purposely directed its activities toward the forum
3. (See Feuer Mot., Dkt. 50, at 11; Pls. Resp. Feuer Mot., Dkt.
59, at 10; Cuomo Mot., Dkt. 55, at 15; Grewal & Denn Mot., Dkt. 57;
at 11; Pls. Resp. Cuomo, Grewal & Denn Mots., Dkt. 73, at 10; Wolf
& Shapiro Mot., Dkt. 75, at 18; Pls. Resp. Wolf & Shapiro Mot., Dkt.
86, at 5).
35a
Appendix B
state or purposefully availed itself of the privileges of
conducting activities there; (2) whether the plaintiff’s
cause of action arises out of or results from the defendant’s
forum-related contacts; and (3) whether the exercise of
personal jurisdiction is fair and reasonable.” Monkton,
768 F.3d at 433 (citation omitted). Specific jurisdiction
“focuses on the relationship among the defendant, the
forum, and the litigation.” Monkton, 768 F.3d at 432-33
(5th Cir. 2014) (quoting Walden v. Fiore, 571 U.S. 277,
134 S. Ct. 1115, 1121, 188 L. Ed. 2d 12 (2014)). Plaintiffs
bear the burden of establishing the first two prongs; only
if they are successful in doing so does the burden shift to
the Defendants to establish the third prong. Id.
A. Threshold Issues
Plaintiffs raise two threshold issues pertinent to the
Court’s minimum contacts analysis. The Court addresses
each in turn before turning to the merits of the parties’
personal jurisdiction dispute.
1. Judicial Estoppel
Plaintiffs argue that Defendants Cuomo, Grewal,
Denn, Wolf, and Shapiro are judicially estopped from
challenging personal jurisdiction in Texas because of the
position they took in the Washington Action. The judicial
estoppel doctrine “prevents a party from asserting a claim
in a legal proceeding that is inconsistent with a claim taken
by that party in a previous proceeding.” New Hampshire
v. Maine, 532 U.S. 742, 742-43, 121 S. Ct. 1808, 149 L.
Ed. 2d 968 (2001). Plaintiffs assert that these Defendants
36a
Appendix B
argued in the Washington Action that (1) “there is nothing
wrong with litigating this kind of controversy away from”
the Defendants’ respective states of citizenship, and (2)
that “‘minimum contacts’ exist as to Defense Distributed
in Washington.” (Pls. Resp. Cuomo, Grewal & Denn Mot.,
Dkt. 73, at 9; Pls. Resp. Wolf & Shapiro Mot., Dkt. 86, at
3). But here, Defendants Cuomo, Grewal, and Denn argue
that minimum contacts “for this controversy” exist only
in New York, New Jersey, and Delaware; and Defendants
Wolf and Shapiro argue that minimum contacts exist only
in Pennsylvania. (Id.). Plaintiffs claim that these positions
are contradictory to the Defendants’ positions in the
Washington Action.
Plaintiffs, however, incorrectly focus on “this
controversy” rather than on the defendants to the
controversy. It is foundational that the minimum contacts
inquiry focuses not on “the kind of controversy” before
the court, but on the defendant’s contacts with the forum
state. See Int’l Shoe Co. v. Washington, 326 U.S. 310, 316,
66 S. Ct. 154, 90 L. Ed. 95 (1945); Walden v. Fiore, 571
U.S. 277, 284, 134 S. Ct. 1115, 188 L. Ed. 2d 12 (2014). The
Defendants’ argument, in a different case, that Defense
Distributed had minimum contacts with Washington,
is in no way inconsistent with their argument here that
they themselves have no minimum contacts with Texas.
Because these positions are not contradictory, Plaintiffs
have failed to make a colorable claim for judicial estoppel.
2. Nationwide Contacts
Plaintiffs raise a second threshold matter—that
the Court’s minimum contacts analysis must look to
37a
Appendix B
Defendants’ contacts with the nation as a whole, not just
Texas. (Pls. Resp. Cuomo, Grewal & Denn Mot., Dkt, 73,
at 11 n.6; Pls. Resp. Wolf & Shapiro Mot., Dkt. 86, at 9-11).
Plaintiffs point to the Supreme Court’s observation in
Bristol-Myers Squibb Co. v. Superior Court of California,
San Francisco County that “constitutional ‘restrictions
on the exercise of personal jurisdiction by a federal court’
are not the same as ‘the due process limits on the exercise
of personal jurisdiction by a State.’” (Pls. Resp. Wolf &
Shapiro Mot., Dkt. 86, at 10) (emphasis removed) (quoting
Bristol-Myers Squibb, 137 S. Ct. 1773, 1783-84, 198 L. Ed.
2d 395 (2017)). As applied to this case, Plaintiffs argue
that “[m]ost or all of the defendants’ motions implicate
this issue by directly invoking federal due process
guarantees,” and, “[t]o the extent that this is the case, they
should fail because ‘minimum contacts’ with the Nation
as a whole suffice to meet the Fifth Amendment’s Due
Process Clause concerns.” (Pls. Resp. Cuomo, Grewal &
Denn Mot., Dkt, 73, at 11 n.6; see also Pls. Resp. Wolf &
Shapiro Mot., Dkt. 86, at 10-11).
Plaintiffs have not shown that the national minimum
contacts rule applies in this case. That rule applies
only when a federal statute or rule supplies the basis
for personal jurisdiction, which Plaintiffs do not allege
here. Bellaire Gen. Hosp. v. Blue Cross Blue Shield, 97
F.3d 822, 825 (5th Cir. 1996). Even Plaintiffs’ cited cases
acknowledge this limitation. See Bristol-Myers Squibb,
137 S. Ct. at 1784 (citing Omni Capital Int’l, Ltd. v.
Rudolf Wolff & Co., 484 U.S. 97, 102, n.5, 108 S. Ct. 404,
98 L. Ed. 2d 415 (1987)); Lone Star Package Car Co. v.
Baltimore & O. R. Co., 212 F.2d 147, 153-54 (5th Cir. 1954)
38a
Appendix B
(in a case where a federal court’s jurisdiction is based on
the assertion of a federal right, “Congress can provide
for service of process anywhere in the United States”)4;
United Rope Distribs., Inc. v. Seatriumph Marine Corp.,
930 F.2d 532, 535 (7th Cir. 1991) (“[P]ersonal jurisdiction
may be created only by statute or federal rule with the
force of statute.”) (citing Omni, 484 U.S. at 108).
Moreover, even if Plaintiffs’ nationwide jurisdiction
rule were applicable here, Plaintiffs have failed to
establish that Defendants have minimum contacts with
the nation as a whole. Indeed, Plaintiffs make no attempt
to show that Defendants have national minimum contacts;
rather, Plaintiffs merely assert that by virtue of the open
question identified in Bristol-Myers Squibb, and the
fact that “[m]ost or all of the defendants’ motions seem
to implicate this issue by directly invoking federal due
process guarantees,” national contacts suffice to establish
personal jurisdiction. (Pls. Resp. Cuomo, Grewal & Denn
4. Moreover, the Fifth Circuit has stated that because “service
of process and personal jurisdiction are conceptually related
concepts,” “when a federal court attempts to exercise jurisdiction
over a defendant in a suit based upon a federal statute providing
for nationwide service of process, the relevant inquiry is whether
the defendant has had minimum contacts with the United States.”
Bellaire, 97 F.3d at 825 (internal quotation marks and citation
omitted); accord Walden, 571 F.3d at 283 (“Federal courts ordinarily
follow state law in determining the bounds of their jurisdiction over
persons . . . because a federal district court’s authority to assert
personal jurisdiction in most cases is linked to service of process on
a defendant who is subject to the jurisdiction of a court of general
jurisdiction in the state where the district court is located.”) (citations
and quotation marks omitted).
39a
Appendix B
Mot., Dkt. 73, at 11 n.6; see also Pls. Resp. Wolf & Shapiro
Mot., Dkt. 86, at 10-11). This result does not follow.
B. Minimum Contacts
Turning to the merits of the personal jurisdiction
dispute, it is Plaintiffs’ burden to establish that Defendants
have minimum contacts with Texas. Monkton, 768 F.3d at
431. Plaintiffs must do so for each Defendant. See Logan
Int’l v. 1556311 Alta. Ltd., 929 F. Supp. 2d 625, 631 (S.D.
Tex. 2012) (“Each defendant’s contacts with the forum
must be analyzed individually.”).
1. “Effects-based” Jurisdiction
Plaintiffs challenge several actions taken by the
Defendants, including sending cease-anddesist letters to
Defense Distributed, issuing press releases about Defense
Distributed, and bringing civil lawsuits against Defense
Distributed. (See Am. Compl., Dkt. 23 ¶¶ 67-71). Of these,
Plaintiffs assert that “[c]ease-and-desist letters deployed
to Defense Distributed in Texas are the keystone conduct
that subjects each defendant to specific jurisdiction in
Texas.” (Pls. Resp. Cuomo, Grewal & Denn Mot., Dkt. 73,
at 11). Specifically, Plaintiffs assert that the Defendants
who sent these letters “purport[ed] to change Texas law,”
thus “literally becoming governing officials of Texas.” (Id.
at 11-12).
All Defendants rely on Stroman Realty, Inc. v.
Wercinski, 513 F.3d 476 (5th Cir. 2008) to argue that the
Court cannot exercise specific jurisdiction over them in this
40a
Appendix B
case. In Stroman, the Fifth Circuit held that an Arizona
Department of Real Estate Commissioner who sent ceaseand-desist letters to a Texas-based real estate company
did not have minimum contacts with Texas. 513 F.3d at
484. There, the Fifth Circuit recognized that “[c]ourts
generally exercise specific jurisdiction over nonresident
defendants that are engaged in commercial, profitoriented enterprise,” but found that “the Commissioner
was not engaged in commercial transactions to obtain a
commercial benefit by acting in a governmental capacity to
enforce Arizona law.” Id. at 485 (citing Kulko v. Superior
Court, 436 U.S. 84, 96-97, 98 S. Ct. 1690, 56 L. Ed. 2d
132 (1978)). Rather than “purport[ing] to change Texas
law,” the Commissioner was simply trying “to uphold and
enforce the laws of Arizona.” Id. at 486.
Stroman is instructive in this case. Like the Arizona
Commissioner, Defendants sent cease-and-desist letters
to a Texas entity in an effort to uphold the laws of their
respective states. Like the Commissioner’s letters, the
Defendants’ letters do not constitute “doing business”
in Texas, and Defendants have not accrued any benefit
relating to Texas through use of the letters. See id. at
484-85. So, like the Arizona Commissioner, Defendants
did not “purposefully avail [themselves] of the benefits of
Texas law like someone actually ‘doing business’ in Texas.”
Id. at 484 (cleaned up) (quoting Hanson, 357 U.S. at 253).
It follows that the Defendants “could not have reasonably
anticipated being haled into federal court in Texas to defend
[the enforcement of their respective state statutes].” Id.
(quoting World Wide Volkswagon Corp. v. Woodson, 444
U.S. 286, 297, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980)).
41a
Appendix B
Plaintiffs attempt to diminish Stroman by suggesting
that it is inconsistent with two Supreme Court decisions:
Calder v. Jones, 465 U.S 783, 104 S. Ct. 1482, 79 L. Ed.
2d 804 (1984), and Walden v. Fiore, 571 U.S. 277, 134 S.
Ct. 1115, 188 L. Ed. 2d 12 (2014). (Pls. Resp. Grewal &
Denn Mot. Dismiss, Dkt. 73, at 12). In Calder, the Court
held that the exercise of jurisdiction over the petitioners
in that case was “proper in California based on the
‘effects’ of their Florida conduct in California.” 465 U.S.
at 789 (citation omitted). In Walden, the Court held that
the exercise of jurisdiction over the petitioner was not
proper because the “petitioner formed no jurisdictionally
relevant contacts with Nevada” even though “he allegedly
directed his conduct at plaintiffs whom he knew had
Nevada connections.” 517 U.S. at 289. Plaintiffs claim
that Stroman “disregards Calder” but that Walden
“reaffirm[s]” it, (Pls. Resp. Grewal & Denn Mot. Dismiss,
Dkt. 73, at 12), and that under the Calder “effects test,”
Defendants have sufficient minimum contacts with Texas,
(Hearing, Mot. Prelim. Inj., Dkt. 97). The Court disagrees.
“Effects jurisdiction . . . is rare.” Stroman, 513 F.3d
at 486 (cleaned up). It is “premised on the idea that an
act done outside a state that has consequences or effects
within the forum state can suffice as a basis for personal
jurisdiction if the effects are seriously harmful and were
intended or highly likely to follow from the nonresident
defendant’s conduct.” Id. (citing Moncrief Oil Int’l Inc.
v. OAO Gazprom, 481 F.3d 309, 314 (5th Cir. 2007)).
“[T]he key to Calder,” however, “is that the effects” of
a nonresident defendant’s conduct must be assessed “as
part of the analysis of the defendant’s relevant contacts
42a
Appendix B
with the forum.” Id. Thus, the Fifth Circuit has regularly
“declined to allow jurisdiction for even an intentional tort
where the only jurisdictional basis is the alleged harm to
a Texas resident.” Id. (emphasis added) (citing Moncrief,
481 F.3d at 314); see also Panda Brandywine Corp. v.
Potomac Elec. Power Co., 253 F.3d 865, 870 (5th Cir. 2001).
A defendant’s conduct is insufficient to establish minimum
contacts when it has no relation to the forum state “other
than the fortuity that [plaintiffs] reside there.” Panda
Brandywine, 253 F.3d at 869.
Similarly, the Supreme Court in Walden emphasized:
“Calder made clear that mere injury to a forum resident is
not a sufficient connection to the forum.” 571 U.S. at 290.
What matters is “the defendant’s contacts with the forum
State itself, not the defendant’s contacts with persons who
reside there.” Id. at 285 (emphasis added). Accordingly,
“[t]he proper question is not where the plaintiff experienced
a particular injury or effect but whether the defendant’s
conduct connects him to the forum in a meaningful way.”
Id. (emphasis added).
Plaintiffs have shown no meaningful connection
between the Defendants and Texas. Illustratively,
Plaintiffs argue that Defendants Wolf and Shapiro’s lawsuit
against Defense Distributed in Pennsylvania, seeking to
enjoin the distribution of the Defense Distributed I files,
“by definition entails Texas contacts because Texas is
where Defense Distributed is headquartered and where
it publishes its website.” (Pls. Resp. Wolf & Shapiro Mot.,
Dkt. 86, at 7-8). Similarly, Plaintiffs argue that minimum
contacts are established with Texas because “Texas is
43a
Appendix B
also where Defense Distributed publishes information
about firearms at a brick-and-mortar public library in
digital formats.” (Id. at 8). In essence, Plaintiffs ask the
Court to “allow[ ] a plaintiff’s contacts with the defendant
and forum to drive the jurisdictional analysis.” Walden,
571 U.S. at 289 (emphasis added). This approach to the
minimum contacts analysis is “impermissible.” Id.; see
also Monkton, 768 F.3d at 433. It would “completely
vitiate the constitutional requirement of minimum
contacts and purposeful availment” because a nonresident
defendant would be subject to suit in Texas “simply
because the plaintiff’s complaint alleged injury in Texas
to Texas residents.” Panda Brandywine, 253 F.3d at 870.
Defendants’ allegedly harmful conduct, however, has no
relation to Texas, was not expressly aimed at Texas, and
does not avail itself of any Texas laws or benefits. The
only relationship any of the Defendants’ actions have with
the State of Texas is the “mere fortuity” that Defense
Distributed resides there. Panda Brandywine, 253 F.3d
at 870. 5
5. Plaintiffs’ several attempts to distinguish Stroman do not
circumvent this fundamental rule. Plaintiffs have variously asserted
that Stroman is distinguishable because it did not involve: (1) a
nationwide injunction; (2) concurrent state court lawsuits; (3) a brickand-mortar library; (4) take-down letters sent to Internet security
companies; (5) public statements and press releases; or (6) a letter
communicating an intent to intervene in a related but distinct lawsuit
in Texas. (See Pls. Resp. Feuer Mot., Dkt. 59, at 12; Pls. Resp. Cuomo,
Grewal & Denn Mot., Dkt. 73, at 12-13; Pls. Resp. Wolf & Shapiro
Mot., Dkt. 86, at 7-8). None of these distinctions entail actions, taken
by Defendants, that have any jurisdictionally meaningful relation to
Texas, that were expressly aimed at Texas, or that avail themselves
of any Texas laws or benefits. The Supreme Court is clear: “The
44a
Appendix B
In sum, the Court finds that under Stroman, Calder,
and Walden, Plaintiffs have failed to establish that any
Defendant to this action has minimum contacts with the
State of Texas.
2. Defendant Feuer’s Letter to the Court
in Defense Distributed I
Plaintiffs also argue that Defendant Feuer consented
to the Court’s personal jurisdiction over him through
his letter that urged the Court to grant a motion to
intervene by three gun control advocacy groups in Defense
Distributed I. (Pls. Resp. Feuer Mot., Dkt. 59, at 1011; Am. Compl., Dkt. 23 ¶¶ 110-11). In the letter, Feuer
expressed an intent to intervene, though he did not request
such relief from the Court. (Am. Compl., Dkt. 23 ¶ 113).
Plaintiffs argue that through this letter, Defendant Feuer
voluntarily appeared before and sought affirmative relief
from this Court, and so the Court has personal jurisdiction
over him in the instant case. (Pls. Resp. Feuer Mot., Dkt.
59, at 11). That Feuer submitted this letter in a different
action does not matter, Plaintiffs argue, because Defense
Distributed I and this case “arise from the same general
set of facts.” (Id. at 12 n.3).
The Court finds the letter insufficient to establish
personal jurisdiction over Feuer. First, Feuer neither
“voluntary appeared” before nor sought “affirmative
relief” from the Court, for purposes of jurisdiction,
proper question is not where the plaintiff experienced a particular
injury or effect but whether the defendant’s conduct connects him to
the forum in a meaningful way.” Walden, 571 U.S. at 290.
45a
Appendix B
in Defense Distributed I. See Bayou Steel Corp. v.
M/V Amstelvoorn, 809 F.2d 1147, 1149 (5th Cir. 1987)
(“[T]he filing of a counter-claim, cross-claim, or thirdparty demand does not operate as a waiver of an objection
to jurisdiction.”) (emphasis added); Tracinda Corp. v.
DaimlerChrysler AG, 197 F. Supp. 2d 86, 92 (D. Del. 2002)
(letter in support of consolidation motion by other parties
not sufficient “to constitute a waiver of a timely filed and
actively pursued defense of lack of personal jurisdiction”).
Second, Feuer neither chose to commence Defense
Distributed I nor the instant action, and he has not
“purposefully availed” himself of Texas’s benefits and
protections by participating in either case. See Painewebber
Inc. v. Chase Manhattan Private Bank (Switz.), 260 F.3d
453, 460 (5th Cir. 2001) (“This is not a case in which the
party seeking to avoid the court’s jurisdiction has chosen
to commence the action or a related action in the very
forum in which it is contesting personal jurisdiction.”);
Kennedy Ship & Repair, L.P. v. Loc Tran, 256 F. Supp.
2d 678, 684 (S.D. Tex. 2003) (“unlike a case where a party
merely files a cross-motion, a party purposefully avails
itself of a state’s benefits and protections when it is has
previously ‘chosen to commence the action or a related
action in the very forum in which it is contesting personal
jurisdiction’”) (quoting Painewebber, 260 F.3d at 460);
Toshiba 993 F. Supp. at 573 (no personal jurisdiction when
a party did not bring a separate, original action, but rather
a third-party action for indemnity).
Third, even if Defendant Feuer’s letter constituted a
voluntary appearance and affirmative request for relief in
46a
Appendix B
Defense Distributed I, that case is not sufficiently related
to this one such that the letter provides the Court with a
basis for exercising personal jurisdiction over Feuer here.
Defense Distributed I involved the State Department’s
enforcement of ITAR and the national security and foreign
policy interests furthered by those regulations, whereas
here, Plaintiffs are attempting to stop the Defendant state
officials from enforcing their respective states’ laws in
order to protect their states’ interests.
Accordingly, the Court finds that Defendant Feuer’s
letter in Defense Distributed I is insufficient to support
the Court’s exercise of personal jurisdiction over him in
this case.
***
In sum, Plaintiffs have failed to establish that any
Defendant to this action has minimum contacts with
the State of Texas. Because minimum contacts are a
prerequisite to the exercise of jurisdiction, Walden, 571
U.S. at 288, the Court concludes that it does not have
personal jurisdiction over any Defendant.
C. Jurisdictional Discovery
Finally, Plaintiffs argue that if the Court finds it
lacks personal jurisdiction over the Defendants, then
jurisdictional discovery is warranted to assess the
relationship between the Defendants and the three gun
control advocacy groups discussed above. (Pls. Resp.
Grewal & Denn Mot. Dismiss, Dkt. 73, at 14). Plaintiffs’
47a
Appendix B
theory is that “one or more of the defendants” directed
these groups to intervene in Defense Distributed I, and
that the groups’ contacts with Texas established in that
case can be attributed to the defendants “for jurisdictional
purposes” in this one. (Id.). Plaintiffs’ theory is based
on Defendant Grewal acknowledging “some kind of
cooperation” with these groups in a public speech, and the
fact that “representatives from each gun control group
have . . . tout[ed] their relationship[s] with lawmakers.”
(Id. at 14 n.8).
“The district court . . . has broad discretion in all
discovery matters.” Wyatt v. Kaplan, 686 F.2d 276, 283
(5th Cir. 1982). In particular, the district court’s discretion
to permit jurisdictional discovery on a motion to dismiss
for lack of personal jurisdiction “will not be disturbed
ordinarily unless there are unusual circumstances
showing a clear abuse.” Id. Further, “[w]hen the lack of
personal jurisdiction is clear, discovery would serve no
purpose and should not be permitted.” Id.
Here, Plaintiffs have failed to plead sufficient facts
to base personal jurisdiction on any relationship between
Defendants and the three gun control advocacy groups.
Plaintiffs wish to base the Defendants’ minimum contacts
on actions taken by these third parties, who are not parties
to this action, who may or may not have any relationship
with an unspecified number of the Defendants, whose
supposed relationship with the Defendants is not alleged
anywhere in Plaintiffs’ amended complaint, and which
relationship would have arisen, if at all, out of events
relating to a separate legal dispute—Defense Distributed
48a
Appendix B
I—to which Defendants were not parties. The Court finds
that the lack of personal jurisdiction over Defendants is
clear, and that any discovery on the matter would be futile
in light of the Court’s finding that this case and Defense
Distributed I are not sufficiently related for purposes
of exercising personal jurisdiction. Accordingly, the
Court will not grant Plaintiffs’ request for jurisdictional
discovery.
III. CONCLUSION
For the reasons stated above, IT IS ORDERED that
Defendant Michael Feuer’s Motion to Dismiss, (Dkt. 50),
is GRANTED.
IT IS FURTHER ORDERED that Defendant
Andrew M. Cuomo’s Motion to Dismiss, (Dkt. 55), is
GRANTED.
IT IS FURTHER ORDERED that Defendants
Gurbir S. Grewal and Matthew Denn’s Motion to Dismiss,
(Dkt. 57), is GRANTED.
IT IS FURTHER ORDERED that Defendants
Thomas Wolf and Josh Shapiro’s Motion to Dismiss, (Dkt.
75), is GRANTED.
IT IS FURTHER ORDERED that because the Court
finds it does not have personal jurisdiction over Defendant
Grewal, Plaintiffs’ Motion for Preliminary Injunction,
(Dkt. 67), is DENIED.
49a
Appendix B
IT IS FINALLY ORDERED that Plaintiffs’ claims
against all Defendants are DISMISSED WITHOUT
PREJUDICE. Plaintiffs may pursue their claims in a
court of proper jurisdiction.
SIGNED on January 30, 2019.
/s/ Robert Pitman
ROBERT PITMAN
UNITED STATES DISTRICT
JUDGE
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.