judgment entered against that i'd like to focus today if i may on two points the district courts lack of personal jurisdiction over my clients and the lack of subject matter jurisdiction because the court lacked either the default judgment is void under rule sixty before and the district court under this court's well settled precedence had noticed aggression to deny our  i was going to point out that this case it involves several unique important interesting matters of first impression which they do but then i said through the oral argument of the first case and i feel that i can no longer make representation but it does remain the case that one hundred million dollar the full judgment based soley on allegations of foreign satellite primacy in latin america where it is essentially undisputed that fully half of the plaintiffs hundred million dollar judgment was based on false evidence is worthy of at least substantial scrutiny both from this court and from the district court which i've never seen your client have scrutinized this time your client was aware of this well before coming into court on the rule sixty and could have first of all come in on a twelve b three or whatever it is to all be won as well could have kamen appealed could have done a lot of things roll fifty nine but waited and waited until we're now in the arena of you having to prove it boy which is a tough one it is a tough standard in the c s that the scope of issues that may be raised under sixty be for our narrow the judgment does have to be void and the issues that are most commonly re used in some in support of that argument are lack of personal  when you say there has been a showing that we didn't show absent of jurisdiction if you look at the one page orders of the district court it's very difficult to determine that the district court gave any substantial consideration to the arguments that we raised with respect to lack of personal jurisdiction or subject matter jurisdiction and i think personal jurisdiction that my clients have zero contacts with texas the plaintiff nagra vision never made any argument whatsoever that we were subject to jurisdiction in texas under the texas long arm statute instead it relied on what has been characterized by the seventh circuit and other courts as a very unusual statute that is for kate who which holds they are else to go no where else to go and that is a requirement of the statute if you don't you must affirmatively find that there is no other state in which this case could have been brought suit under that state long arms statue and only then if this is a federal question and if it doesn't offend to process may you look at the entire grouping of contacts from the united states with respect to my client on for k two but the important thing to notice is that is nagra visions documents show they knew prior to filing their complaint against us in texas that we had substantial contact with california easily sufficient to create personal jurisdiction there and unlike some for cake he had two cases such as mariel for example or i assigned the seventh circuit their claim directly arose out of the contacts that we had with california they received what they characterized as a separate prong judgment for one point five million dollars based exclusively on satellite receivers that they alleged and we admit were imported in california to california knowingly by  frankly it seems shocking that and it intentional court case and intellectual property case of infringement based on importations the california of roughly seven thousand satellite receivers could not support jurisdiction in california i don't know how that could be defended and we certainly  california cases saying that even one import intentionally of a product to california that forms the basis for the plaintiffs cause of action is sufficient to support jurisdiction and i think it's important to notice that they've never challenge that they've never said when you look at our allegations and aggravations allegations when you look at what we say actually happened here there's no jurisdiction in california instead they've relied on with due respect to them a rather weird argument that essentially says because we challenge the merits we don't confess judgment you know we don't say we're actually guilty of what we're stores of having done we're stopped from saying that we're subject to jurisdiction in california even though we expressly conceded they were jurists in california and certainly in california as well as in other cases in other jurisdictions jurisdiction is measured based on a prima facie analysis of the pla court's precedent in adams requires that we're subject to jurisdiction in california and that if they wish to refile this case in california we won't object to jurisdiction but perhaps equally importantly we demonstrated that even if we had not consented the fact that a separate pong of their default judgment alleged in their complaint is based soley on our imports the california and with respect to the other prong of their so is that kind of the facial argument because you know in a d for d fall context you admit everything in the complaint you're saying on the face of the complaint it shows there is a venue where you could have brought this and you failing to do that means you don't meet for k two on the face of the pleading sat the argument i would just add a slight wrinkle ok as we point out in our papers we found this some deceptive in their complaint they alleged all of our cal all of our contacts with california certainly sufficient to establish jurisdiction in california but because they didn't want to go to california in every case they characterize those california contacts as in the united states but there is not on the face because the face doesn't tell the district court where these contacts happened that is this court did say that a defendant may avoid the application for k two simply by conceding to jurisdiction in another state well we've done that we seem to jurisdiction in california we've done it stage on a motion to vacate a default judgment you can imagine a defendant showing up and just throwing a dart board at a map of the united states and saying we're subject to jurisdiction in a yet nobody has any contacts with alaska but you know that would be sufficient to vacate the default judgment the federal circuit has said that really isn't fair that of encourages going's and in that context  all of the evidence that they needed all of us that they ever had o'barr substantial contacts with california they hid those from the district court both on their complaint as well as their motion for default judgment but their paper submitted in support of their default judgment show that before they filed the complaint they knew that we had these imports into california the argument i'm trying to understand the sort of principle of lawyers passing and it is that when the complaint shows contacts whether the complaint says where they are not and those contacts are all centered on a state that you then come in and say we can see jurisdiction in that state then that is enough to vacate the default versus the rand let me just pick a state and pretend like i'll go there so that i can get out of this default judgment that would be our recommendation of the court certainly the court's prior adam's decision which is really the only pronouncement on forty two says that all you need to do is can see it doesn't say that you need to concede a place that actually makes them but we certainly have no problem with the court adopting the burden shifting analysis that many courts of adopted that originated with the first circuit in swiss american basically says that happened what if they said that an amish nation believe there isn't a state that would be the right state so we're coming to texas because we like texas well then would that alter the calculus here and there every thing else happened the same way you waited till the sixty stage and all of that would that change the calculus and that's why i say i don't think it's a sponsor device i think it would have prevented them from doing what they did because i don't think they could have made that sort of a case in knowing what they knew about but certainly would have  still would have come in and said there's an overwhelming malan ton of contacts with california that's proved by their own filings in the mere fact that they got a judgment based on our contacts with california and so the default judgment is void but i think if they had made that certification to begin with all of this would have been avoided because i believe that opposing counsel is an honorable honest person and he knows he could not have ever possibly made that sort of a case and it was just may please the court joseph boyle for nagra vision go tek did not consent to jurisdiction in california and if they did not consent to jurisdiction in california all of the other personal jurisdiction arguments drop out and you can run from personal jurisdiction the rule in the fifth circuit is adams and adams says if they don't consent to jurisdiction in another forum then the district court is allowed to use for k to  twenty five page motion to vacate the default judgment but they only spent two of those pages on personal jurisdiction in those two pages they only raised two arguments the first asked the district court to adopt an out of circuit pleading test for four k to the certification test saying that you have to have magic words in your complaint certifying the absence of jurisdiction in any other state within that first argument they include a sentence that says we could never have met the certification standard because quote while defendants dispute the truth of plaintiff allegations it is certainly the case that if they were assumed to be true jurisdiction would lie in california that's not consent that's not a voluntary acquiesce to jurisdiction in the state of california that's an observation of what the legal conclusion would be if certain facts were taken as true but it's a conditional statement right we can look at just that one sentence that they're hanging their hat on and apply a rule of grammar to it the rule of grammar is what does it mean when you introduce a clause using the word if it means it's a conditional clause it's not it's not a declarative affirmative statement  grammatically using the word if these facts are assumed to be true then jurisdiction would lie in california is more a comment about how a legal conclusion could be reached versus an affirmative consent and waiver of jurisdiction in california take it in another context if a judge asks a defendant do you plead guilty and the answer is well if the facts are as the prosecution alleges them then i would certainly be guilty that's not a consent to a guilty plea they're not consenting to jurisdiction with that one sentence on page thirteen sixty on the record on appeal and again there's only two pages of personal jurisdiction argument that they make there's a difference between making the conditional comment about the logic chain and making a firm of waiver of consent navigation and it's a brief a pine's on what the motive for that may be and it may be that the reason they are hedging their bets and hedging their language in the brief is they're trying to take a inconsistent position in litigation occurring in hong kong where they need to be taking a position in hong kong that they are not subject to in the united states that the u s court did not have jurisdiction over them so they're trying to be careful what their words so what they asked a district court to do is drop the standard down extraordinarily low they said you should interpret adams you should actually interpret the atmos rule to include the converse that so long as we consent then you cannot use for k two verses the affirmative way that adams has stated which is absence of consent means that you can use it but they didn't step over the hurdle they didn't take the next step and say we consent to jurisdiction in california and if they if they had done that then we might be in a different situation so what about their reply brief yesterday about that are you saying you would interpret the case well that exist let me back up the test either this is a consent alone or is that consent plus there are a b as consent alone satisfies adams but that's actually that's a logical fallacy that's the converse of the of the holding in adam's holding in adams is if there is no consent then the district court may use for k two but we don't include in adam's the opposite statement or the converse of the statement well if there is consent and you can't use it our position is that i consent plus test for jurisdiction after adam said you must consent and then you have to move on and prove that your contacts but the four did create jurisdiction if that makes sense for your position so let's let's move on then so let's assume if they did concede was concession alone enough in our position is that no unilateral consent to jurisdiction by the defendant alone can't satisfy adams and there's two reasons that's true the first is for the reasons set forth in the mariel case for the court said adopting this kind of all i have to do is say jurisdiction in guam and it doesn't matter if i'm really subject to jurisdiction that encourages sandbagging and gamesmanship the second reason is the way for k two reads the text of the rule says the court  use for k two or jurisdiction is appropriate so long as the defendant is not subject to jurisdiction in a state court of in a state court of general jurisdiction that reads a lot like motions to transfer venue under fourteen  a right and a motion to transfer fourteen zero for a a district court can transfer any civil action to a district where it quote could be brought or might be brought so there's a temporal test do you test that at the time that the fifth circuit had a rule or had an opinion that said well if the defendant you know laterally consents to venue somewhere else then that means it's forum where this could be brought and the seventh circuit said no the unilateral wishes of the defendant don't matter you have that where it could be brought means where it could be brought at the inception of the case without regard to the unilateral wishes of the pardon me of the defendant and that case is hofmann versus three sixty three us three thirty five it's just an analogy right now it's not about four k two it's not about sixty b but if we could dump the rule that adams requires a consent plus duck truth that there really is from the seventh circuit case if the defendant contends that he cannot be sued in the form state and refuses to identify any other were sued as possible then they can use for k two and then it says here the us contested new york and didn't identify any other state so it didn't say you have to come in and go i hereby agree that if you had this case in california i would not oppose jurisdiction instead you have to identify another were sued is possible and did they do that i would disagree with one part of that which is adams the second part of the adams quote says because your mass has not offered other venues in this country where personal jurisdiction would attach so i'm focusing on the words would attach what is would attached mean does would attach meaning would attach when the complaint was filed like do we just stick a pin in the calendar on that day and say do we look at it independent of consent or do we let a defendant create facts after filing of a lawsuit that affects the forms in which the case could be brought now but i mean what they're saying is a little bit more specific here they're saying you have been making it up paragraphs twenty three through twenty seven of the complaint talk about all this stuff that go tech did wrong those all happen in california and therefore they're not making up a state they're actually giving they're just adding a state to your own allegations you're saying x happened happened happened happened and all of that happened in california and the so then they're pointing out that yeah you had another place it wasn't like we stole one thing in california another in alabama another in montana another in new york and so all of those combined are good enough that we can't find one state they're saying your own complain identifies a bunch of stuff that happened in california what is wrong with that argument so what's wrong with that argument is that they should have then taken those facts and in their two or however many pages that they wanted to devote to it to the district court they should have shown made a showing how those facts one are contacts with california versus as we characterize them contacts with the united states as a whole in two they should have used words like minimum contact locus of the tort purposeful of ailment purposeful direction they needed to show how the facts that are in the complaint create personal jurisdiction in california they don't do that they have one sentence in on that page thirteen sixty of the rec the only thing they say to the district court is the preponderance of go text contacts were with california preponderance of the contacts isn't a minimum contacts test preponderance or numerosity of contacts is it best an element of due process analysis the quantum or number of contacts you have with a with a geographic area that's that's not the test for specific jurisdiction right  burger king we rejected mechanician mechanical rules for jurisdiction we don't say if there's no rule that says i bet the hard part here is they don't want to agree that they did anything wrong number one number two i'm not sure adams requires that they agree that they are subject to suit in the united states at all i think what they are saying is taking your pleadings is true that all of this stuff happened this stuff all happened in california so you have a place to go and for k two is not the right standard and i guess i'm not understanding what's wrong with that argument it's big it's two reasons number one is every contact with the united states will happen in some geographical location right so if you take their interpretation that well as long as we can point to the geography in which the contact occurred that will always got for k two so that that can't be that can't be the rule that the second is what number two the contacts as we characterize them are to with the state of california california was involved for example the shipments of receivers the shipments of satellite receivers went to distributors in california those were not shipments to consumers in california their own executives sun when bo their director of overseas marketing and then for the other defendant mr mann they both disclaim in their in their declarations and affirmation any knowledge of the ultimate destination of the shipments receivers that they made they say the us is not a big market for us we don't do a lot of shipments there yes we shipped to a couple of distributors in california but we don't know where they sold them to so what they're asking you to do is just more of the just your quarters to infer that if a shipping his california mechanical rule applies that means jurisdiction you proper in california argument is no you're welcome to use that fact but before the district court you need to brief out why shipments to california equal specific jurisdiction and you didn't do that you used one sentence that said the preponderance of contacts of our contacts were in california and then law and second there's a special rule in patent litigation that says the locus of injury is wherever the product is sold right so neither of those help their specific jurisdiction argument our position is that because personal jurisdiction is waive will and because if you don't brief an argument to the district court or on appeal if you don't brief it right then you can waive the argument so it's not enough for them to just say hey they allege forty two jurisdiction but because for pay to jurisdiction always involves some stepping  on a particular state that you should infer that that means state jurisdiction has been created rather than for k to jurisdiction we just don't think that say we don't think that's the right reading of the rule that you have to be able to have if that's the rule then for katie doesn't exist anymore because you will whatever the contact is will always be deemed under their rule to apply to the individual state i'm not saying they couldn't have made the argument they could have they could have picked a lot more pages to use and said here's what the california law graham says here is the the test for specific jurisdiction or california law here are the shipments to went to that went to california here are cases that say the shipments going to california equal jurisdiction but that's still requiring them to concede jurisdiction and i seems to me that the emperor did this term concede when you when you view it in light of the quote here is the kind of endo were subject to jurisdiction in the us it would be in california because that's where the contacts you allege occur why can't that be acceptable because it seems kind of unfair to me to make someone who has a general challenge to jurisdiction in the us but who thinks if there is it's got to be in california you get you're not allowed to make that kind of if then argument i think they can make still make the if then argument but but the other part of it i guess is that adams has a burden shifting rule right so for kate who doesn't have bird shooting to write for k forty two just says service of the  defendant is is is good for personal jurisdiction so long as they're not subject to jurisdiction to any states court of general jurisdiction so that's that's in the rule that's in four k two that's what that's what got laid down so if they want to defeat the rule there's two ways to do it one is the whole fifty state analysis test right which is run through every fifty you know put the burden on the plane have to run through all fifty states and show that they're affirmatively not separate the jurisdiction any of the fifty states or you can burden shift which is what swiss america said and with adam said which is you know to make this smoother we're going to we're going to put a presumption in place the presumption is if you don't concede then you get to we get to use the rule and so that's why i say that's a two part test the first thing we have to look at is did they concede jurisdiction and if they don't concede the jurisdiction the district court got to use for k two because we get to take that we get the benefit of the burden shifting and if they did might my next point is you have to move to the next step which is are you conceding to a place in which jurisdiction existed and you've got to make the showing you it's you it's their burden to t not they can't just say you touch the united states and that was in colorado suggest you know jurisdictions proper in california and colorado they've got to they cite the standard do the work show the rules and prove to the district court that those contacts w you're saying in response to their argument that you needed to use magic words that they needed to use magic words not magic words briefing i think it would be it's the difference between briefing an issue to the district court and not briefing it right now all they say the only thing they told the district court is the preponderance of our contacts were in california but number one i don't think the preponderance of their contacts were in california because the servers at issue in this case were in places like colorado illinois washington they were spread around although the receivers were shipped to the port of los angeles and shipped to distributors in california we allege affirmatively in the complaint that those receivers were shipped for distribution across the of case like when you get into questioning by you know why wouldn't california be the best place for this you know it's this is an interest of the california sovern about receivers coming into their port that get shipped across the united states the second thing i want to make sure i get to is the notion that the shipments to california were sufficient in themselves to for jurisdiction every one of their cases about shipments the shipments were shipped f o b which means title transferred in china or hong kong right our cases distinguish their cases in saying that f o b shipments alone are not sufficient to establish jurisdiction in a particular state and particularly with respect to california every new case that they include in their reply brief is not an f o b alone case every single one of their cases is an f o b plus it's f o b plus some other factor such as for sea ability that it can california consumer was going to purchase it or that they they were providing warranty work to people in california to go along with those with those with those sales there's not a there's not a single case that they have that creates a bright line rule that says an f zero b shipment to california would be enough for a specific jurisdiction and our position would be their failure to to prove that point to the district court means the district court was it was not avoid the judgment it's not it gigantic error for him to look at what they briefed and say you didn't prove you didn't consent to jurisdiction in california number one and number two even if you did you didn't prove that those contacts with california would create specific purpose if it jurisdiction the last thing i just want to mention is that it's true that the size of the judgment in this case is significant but the size of the judgment does not outweigh other factors just their intentional failure to default and it's not harsh to hold them responsible for the consequences of their own decisions thank you first of all your honors i can say categorically that everything mr boyle says that we should have done we did quote from our brief defendant's consent to personal jurisdiction in california and will not challenge personal jurisdiction if plaintiff three commences this action against them in that form how is that not adequate consent which talking are you reading that would be consent at a particular stage particularly in the initial brief in the district court now i would also very much disagree with mr boyle statement that we failed to concede adequately if it were required in our initial brief to the district court there we said well defendants do not concede the truth of telling to us allegations nor should they be required to they certainly concede that if the allegations in plaintiff's complaint are assumed to be true jurisdiction is proper in california as we explained defendant's position essentially is that we have to confess judgment on the merits we have to say these allegations of wrongdoing in california are true or else we did niger's diction in california but as we saw it in the bancroft case california case among others in california as in most places jurisdiction is a valuated that we weren't conceding the merits of the case at the same time that we conceded jurisdiction in this if we were to accept your argument and reverse the district court which would then result in a dismissal without prejudice of this case and they went the next day after that dismissal and filed in california you would not object to jurisdiction there absolutely your honor we would not ok and the statute of limitations that's involved would be told during the period of this  according to the laws of the federal courts it would not be told but it's also the case that it would not have run because it's a lengthy period of statute of limitations and they allege wrongdoing going up through two thousand and fift and i'm sure you're doing your best to waive no defenses that is the approach in the cases before what we certainly wouldn't a re defenses on the merits we would make the same subject matter jurisdiction arguments we would still say we didn't do any of this but we would not make a personal jurisdiction and that's all that adams requires we and i don't want to i only have a few minutes i don't want to i don't have time to go in detail the role of the  evidence but in our brief we show specific evidence with spiff specific sites to the records that indeed they did know about all of our contacts with california before they filed their complaint they did all of their investigation or their testing and they had all of that information in hand so this is not a case of us coming in with later found evidence that they could use to say well that's fine  didn't know about it at the time if you were to adopt the standard which the court has not yet adopted that says we have to identify a form in which we could have been sued at the time that they sued us again i could give you a recitation of all the record cites but it is in our brief but they put in a substantial amount of evidence showing their own tests their own investigations and as they admit all of these were completed the months before they actually filed their complaint so ye they knew about our contacts with california and they could have brought suit there and this would be the first case in our knowledge that any court in the united states has ever held that a tort claim that