United States Court of Appeals for the Federal Circuit 

2008-1109 

THE CAMPBELL PET COMPANY, 

Plaintiff-Appellant, 

v. 

THERESA MIALE and TY-LIFT ENTERPRISES, 

Defendants-Appellees. 

Kurt M. Rylander, Rylander & Associates PC, of Vancouver, Washington, 

argued for plaintiff-appellant. 

F.T. Alexandra Mahaney, Wilson Sonsini Goodrich & Rosati, of San Diego, 

California, argued for defendants-appellees. 

Appealed from: United States District Court for the Western District of Washington 

Judge Ronald B. Leighton 
United States Court of Appeals for the Federal Circuit

2008-1109 

THE CAMPBELL PET COMPANY, 

Plaintiff-Appellant, 

v. 

THERESA MIALE and TY-LIFT ENTERPRISES, 

 Defendants-Appellees. 

Appeal from the United States District Court for the Western District of Washington 

in case no. 07-CV-5375, Judge Ronald B. Leighton. 

___________________________ 

DECIDED: September 18, 2008 

___________________________ 

Before BRYSON, ARCHER, and PROST, Circuit Judges. 

BRYSON, Circuit Judge. 

 In this appeal concerning in personam jurisdiction, we are asked to decide 

whether the presence of the defendant patent owner in the State of Washington and her 

activities there relating to the enforcement of her patents are sufficient to allow a federal 

district court in that state to exercise in personam jurisdiction over the defendants, a 

California corporation and a California resident. The district court held that the patent 

owner’s activities were not sufficient to allow it to exercise in personam jurisdiction over 

the defendants. We disagree, and we therefore reverse the dismissal of the complaint. 
2008-1109 2 

I 

 The allegations of plaintiff Campbell Pet Company concerning personal 

jurisdiction, which the district court accepted as true for purposes of its jurisdictional 

ruling, are the following: Campbell is a company located in Vancouver, Washington, 

that manufactures and sells pet accessories and products, including mobile folding 

stretchers for transporting injured animals. Defendant Ty-Lift Enterprises is a California 

corporation that is wholly owned by defendant Theresa Miale and her mother. The 

company sells mobile stretchers for transporting injured animals, including the Ty-Lift I 

model folding animal stretcher. Two U.S. patents owned by Ms. Miale, U.S. Pat. Nos. 

6,199,508, and 6,230,662, relate to the Ty-Lift I stretcher. Ty-Lift operates a website on 

the Internet where it advertises its products and where customers can purchase them. 

It also makes sales through means other than its Internet site. 

 Between 1999 and 2006, Ty-Lift had gross sales averaging $93,600 per year. 

During that period, the company sold 12 units, either stretchers or tables, to residents of 

the State of Washington, for a total of $13,851. Between 2000 and 2002, Ty-Lift sold 

eight Ty-Lift I stretchers to Washington residents, for a total sales price of $3,149. 

 In June 2007, Ms. Miale attended a three-day convention in Seattle, Washington, 

sponsored by the American College of Veterinary Internal Medicine. During that 

convention, Ms. Miale demonstrated her products and offered them for sale. In the 

course of the convention, she took two orders for tables from residents of Virginia and 

New York, for a total purchase price of $9,400. Plaintiff Campbell also had a display at 

the convention featuring its products. In the course of the convention, Ms. Miale and 

her mother confronted several of Campbell’s employees who were attending the 
2008-1109 3 

convention and accused them of infringing the Miale patents. According to the 

Campbell employees, Ms. Miale said that she had contacted her patent attorney and 

threatened Campbell with patent litigation, stating that patent attorneys and litigation 

were expensive. The Campbell employees further alleged that the convention manager 

told them that Ms. Miale and her mother had asked that the Campbell display be 

removed from the convention because it infringed Ms. Miale’s patents, but that the 

convention manager had declined to do so on the ground that she was not qualified to 

evaluate a claim of patent infringement. The Campbell employees also alleged that a 

customer informed them that Ms. Miale and her mother were “bad mouthing” Campbell 

and its products to Campbell’s customers, and referred to Campbell as “copiers of their 

patent.” 

 In the month following the convention, Ty-Lift sent a letter to Campbell claiming 

that Campbell’s mobile folding stretcher infringed the Miale patents. Shortly thereafter, 

Campbell filed suit in the United States District Court for the Western District of 

Washington seeking a declaration of noninfringement and invalidity with respect to the 

Miale patents. In response, Ty-Lift moved to dismiss the complaint for lack of personal 

jurisdiction. 

 The district court granted the motion to dismiss. The court first held that the level 

of contact between the defendants and the forum state was not sufficiently “substantial” 

and “continuous and systematic” to justify the exercise of general jurisdiction. Campbell 

Pet Co. v. Miale, No. C07-5375 (W.D. Wash. Nov. 2, 2007), citing Red Wing Shoe Co. 

v. Hockerson-Halberstadt, Inc., 148 F.3d 1355 (Fed. Cir. 1998). 
2008-1109 4 

The district court noted that the degree of contact with the forum state that is 

necessary to establish general jurisdiction is “quite high.” In this case, the court held, 

the defendants’ contacts with the State of Washington were limited to a total of 12 sales 

over eight years and attendance at the 2007 convention at which they made no sales to 

Washington residents. The court pointed out that the defendants have no office or 

sales representative in Washington, are not registered in Washington, and pay no taxes 

in Washington. The court also rejected Campbell’s contention that general jurisdiction 

could be found based on the defendants’ website, because the website had produced 

no sales in Washington during the eight years it had been in existence and because the 

defendants had no contracts or other business arrangements relating to the website 

with any companies based in Washington. 

 With respect to specific jurisdiction, the district court asked the two pertinent 

questions that apply to all inquiries into specific jurisdiction: (1) whether the forum 

state’s long-arm statute would permit service of process under the circumstances of the 

case, and (2) whether the assertion of personal jurisdiction would violate due process. 

The Washington long-arm statute permits the state’s courts to exercise personal 

jurisdiction over any defendant who transacts any business within the state, and under 

Washington law, the “transaction of any business” is considered to be co-extensive with 

the limits of due process with respect to the exercise of personal jurisdiction. The court 

therefore turned to the due process question, which requires that (1) the non-resident 

defendant purposely do some act or consummate some transaction in the forum state, 

(2) the cause of action arise from or be connected with that transaction, and (3) the 

assumption of jurisdiction by the forum state not offend traditional notions of fair play 
2008-1109 5 

and substantial justice. The court found the first factor satisfied in light of the 

defendants’ sales to customers in Washington and Ms. Miale’s participation in a trade 

show there. However, the court found that the second factor was not satisfied, because 

“the plaintiff claimed no injury flowing from the defendant’s production, marketing and 

sale of its products in the forum state.” The court consequently concluded that there 

was “no nexus between the defendant’s marketing and sale of its products in the forum 

state and the subject matter of the plaintiff’s claims, which concerned only the patent’s 

validity.” Accordingly, the district court dismissed the complaint for lack of personal 

jurisdiction over the defendants. 

 Campbell filed a motion for reconsideration, noting that the district court had not 

addressed Campbell’s claim of noninfringement and the relationship between that claim 

and the defendants’ conduct at the June 2007 convention. In response to the 

reconsideration motion, the district court issued a supplemental opinion altering its 

reasoning. In the opinion on reconsideration, the court found that in light of the 

defendants’ conduct at the June 2007 convention both the first and second factors in 

the specific jurisdiction test were satisfied. The court found, first, that the defendants 

had “acted purposefully and consummated transactions” in the State of Washington, 

and, second, that the claim of noninfringement was sufficiently connected with the 

defendants’ actions within the state. With respect to the third factor, however, the court 

concluded that 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.” The court added that standards of fairness demand that a patentee “be 

insulated from personal jurisdiction in a distant forum when its only contacts with that 
2008-1109 6 

forum were efforts to give proper notice of its patent rights.” Because the court 

regarded the actions of the defendants as “akin to submitting cease and desist letters,” 

the court held that the third factor bearing on specific jurisdiction was not satisfied. The 

court therefore denied the motion for reconsideration. 

II 

The district court was clearly correct in ruling that it did not have general 

jurisdiction over the defendants. As the district court noted, a forum does not have 

general jurisdiction over a defendant business entity unless the defendant has contacts 

with the forum state that qualify as “continuous and systematic general business 

contacts.” Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416 

(1984); Perkins v. Benguet Mining Co., 342 U.S. 437, 438 (1952). The district court 

found that there was no basis for exercising general jurisdiction over the defendants in 

light of the fact they had only made 12 sales over eight years to customers in the State 

of Washington, which the court found to reflect far less than the required “continuous 

and systematic” contacts with the state. 

In challenging the district court’s ruling, Campbell relies on this court’s decision in 

Genetic Implant Systems, Inc. v. Core-Vent Corp., 123 F.3d 1455 (Fed. Cir. 1997), for 

the proposition that cease-and-desist letters combined with ongoing business in the 

forum state can provide a court with general jurisdiction over a defendant. Campbell’s 

reliance on Genetic Implant Systems for its argument concerning general jurisdiction is 

misplaced, as that case addressed the requirements for specific jurisdiction. 

Campbell’s reliance on the defendants’ maintenance of a website is also insufficient to 

give rise to general jurisdiction over the defendants in the State of Washington, as the 
2008-1109 7 

website is not directed at customers in Washington and does not appear to have 

generated any sales in Washington. See Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 

414, 419-20 (9th Cir. 1997). Thus, as in Trintec Industries, Inc. v. Pedre Promotional 

Products, Inc., 395 F.3d 1275 (Fed. Cir. 2005), the defendants’ website does not 

establish general jurisdiction in Washington, because it was not specifically directed at 

Washington, “but instead is available to all customers throughout the country who have 

access to the Internet. . . . [T]he ability of [forum] residents to access the defendants’ 

websites . . . does not by itself show any persistent course of conduct by the defendants 

in the [forum].” Id. at 1281. 

Campbell also contends that the defendants have made sufficient sales to 

customers in Washington to establish general jurisdiction there. We agree with the 

district court, however, that the very small volume of sales that the defendants have 

made to customers in Washington falls far short of enough to reflect the substantial and 

continuous presence in the state necessary to support general jurisdiction. As the 

district court noted, the evidence showed that the defendants made only 12 sales to 

Washington residents in eight years, for a total of less than $14,000 in gross revenue 

(approximately two percent of the defendants’ total sales), and in four of those years 

they made no sales in Washington at all. That degree of commercial activity is far short 

of the amount that was present in the Helicopteros Nacionales case, yet in that case the 

Supreme Court held that even that degree of activity was insufficient to support the 

exercise of general jurisdiction over the defendant. The instant case is a classic case of 

sporadic and insubstantial contacts with the forum state, which are not sufficient to 

establish general jurisdiction over the defendants in the forum. 
2008-1109 8 

III 

As the district court noted, even where general jurisdiction is not available, 

specific jurisdiction may be exercised by a district court in the forum state if the state’s 

long-arm statute would permit service of process on the defendant under the 

circumstances of the case, and if due process considerations would permit the exercise 

of personal jurisdiction over the defendant under those circumstances. See Omni 

Capital Int’l Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104-05 (1987); Burger King Corp. v. 

Rudzewicz, 471 U.S. 462, 471-76 (1985). In a case such as this one, in which the 

state’s long-arm statute extends to the limits of due process, the two-part inquiry 

collapses into one—whether due process considerations permit the exercise of 

jurisdiction. 

Resolving that question requires the court to address two issues that bear on 

whether the defendant has purposefully established minimum contacts with the forum 

state: (1) whether the defendant “has purposefully directed his activities at residents of 

the forum”; and (2) whether “the litigation results from alleged injuries that arise out of or 

relate to those activities.” Burger King, 471 U.S. at 472-73 (citations and internal 

quotations omitted). If the court concludes that those two conditions are satisfied, a 

third factor comes into play, i.e., “whether the assertion of personal jurisdiction would 

comport with fair play and substantial justice.” Id. at 476, quoting Int’l Shoe Co. v. 

Washington, 326 U.S. 310, 320 (1945). The Supreme Court made clear that the third 

factor is to be applied sparingly. When a defendant seeks to rely on the “fair play and 

substantial justice” factor to avoid the exercise of jurisdiction by a court that otherwise 

would have personal jurisdiction over the defendant, “he must present a compelling 
2008-1109 9 

case that the presence of some other considerations would render jurisdiction 

unreasonable.” Burger King, 471 U.S. at 477. This court has echoed that restrictive 

characterization of the third Burger King factor, stating that “defeats of otherwise 

constitutional personal jurisdiction ‘are limited to the rare situation in which the plaintiff’s 

interest and the state’s interest in adjudicating the dispute in the forum are so 

attenuated that they are clearly outweighed by the burden of subjecting the defendant to 

litigation within the forum.’” Akro Corp. v. Luker, 45 F.3d 1541, 1549 (Fed. Cir. 1995), 

quoting Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558, 1568 (Fed. Cir. 

1994). In Electronics for Imaging, Inc. v. Coyle, 340 F.3d 1344, 1351-52 (Fed. Cir. 

2003), we set forth in some detail the factors bearing on the “reasonableness” inquiry 

under the Burger King standard: 

The reasonableness inquiry encompasses factors including (1) the burden 

on the defendant, (2) the interests of the forum state, (3) the plaintiff’s 

interest in obtaining relief, (4) the interstate judicial system’s interest in 

obtaining the most efficient resolution of controversies, and (5) the shared 

interest of the several states in furthering fundamental substantive social 

policies. 

The district court found that the first two parts of the three-part test for specific 

jurisdiction were satisfied, and we agree. As noted, the court found that the defendants 

had purposely engaged in transactions in Washington during the three-day convention 

in June 2007, and the court found that the cause of action for a declaratory judgment of 

patent noninfringement and invalidity arose from or was connected with those 

transactions. However, relying on our decision in Red Wing Shoe Co. v. HockersonHalberstadt, Inc., 148 F.3d 1355 (Fed. Cir. 2003), the court found that due process 

considerations barred the court from exercising personal jurisdiction over the 

defendants based on the activities at the June 2007 convention in Seattle. 
2008-1109 10 

As the district court correctly noted, we have fashioned a rule, as part of the 

“reasonable and fair” portion of the due process inquiry in personal jurisdiction cases, 

that, without more, a patentee’s act of sending letters to another state claiming 

infringement and threatening litigation is not sufficient to confer personal jurisdiction in 

that state. See Silent Drive, Inc. v. Strong Indus., Inc., 326 F.3d 1194, 1202 (Fed. Cir. 

2003). That rule is based on a policy judgment that “[p]rinciples 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.” Red Wing Shoe, 148 F.3d at 

1361. 

Based on that rationale, we have held that “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.” Inamed Corp. v. Kuzmak, 249 F.3d 1356, 

1360-61 (Fed. Cir. 2001) (citing cases). As the court put the matter in Genetic Implant

Systems, Inc. v. Core-Vent Corp., 123 F.3d 1455, 1458 (Fed. Cir. 1997), beyond the 

sending of an infringement letter, “[o]ther activities are required in order for a patentee 

to be subject to personal jurisdiction in the forum.” Where the patentee has engaged in 

sufficient additional conduct, beyond merely informing others of its patent rights and its 

intention to enforce those rights through litigation, we have held that the policy of Red 

Wing Shoe does not afford the patentee protection against a declaratory judgment 

action brought in the foreign forum to which the patentee directed its actions. See, e.g., 

Breckenridge Pharm., Inc. v. Metabolite Labs., Inc., 444 F.3d 1356, 1366-67 (Fed. Cir. 

2006) (entry into an exclusive license with an entity in the forum state is a sufficient 

additional factor to justify the exercise of personal jurisdiction); Electronics for Imaging, 
2008-1109 11 

340 F.3d at 1351 (other forum state activities by the defendant, such as visiting the 

plaintiff, hiring an attorney, and telephoning the plaintiff there on several occasions were 

sufficient to justify personal jurisdiction over the plaintiff); Inamed Corp., 249 F.3d at 

1361 (defendant’s successful negotiation of licensing agreements with plaintiff 

constituted sufficient “other activities” beyond the sending if an infringement letter 

justifying subjecting the patentee to personal jurisdiction in the forum state); Genetic 

Implant Sys., 123 F.3d at 1458 (personal jurisdiction upheld where, beyond sending 

cease-and-desist letters, defendant engaged in a program to develop a market in the 

forum state, including developing customer lists and advertising there); Akro Corp., 45 

F.3d at 1548-49 (exclusive licensing of the accused infringer’s competitor in the forum 

state constituted the required “additional activity” beyond sending warning letters). 

In this case, the district court erred by characterizing Ms. Miale’s actions at the 

June 2007 convention as constituting nothing more than attempts to inform Campbell of 

suspected infringement. As Campbell points out, its employees’ affidavits assert that 

Ms. Miale did more at the trade show than simply inform Campbell that its animal 

stretchers might infringe her patents. The affidavits state that Ms. Miale attempted to 

have Campbell’s allegedly infringing products removed from the convention and that 

she told Campbell’s customers that Campbell’s products were infringing. Of critical 

importance to the issue of personal jurisdiction, Ms. Miale’s attempts at “extra-judicial 

patent enforcement” were targeted at Campbell’s business activities in Washington and 

can fairly be characterized as attempts to limit competition from Campbell at the Seattle 

convention. Those efforts go beyond simply informing the accused infringer of the 

patentee’s allegations of infringement. 
2008-1109 12 

Although none of our precedents have facts closely akin to the facts of this case, 

other courts have found personal jurisdiction in circumstances quite similar to those in 

this case. In Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063 (10th Cir. 

2008), the plaintiffs sold products on eBay from their home in Colorado. The 

defendants, believing that one of the plaintiffs’ products infringed their copyrights, 

contacted the plaintiffs by email in Colorado to threaten suit and also contacted eBay in 

California, which resulted in the plaintiffs’ auction being suspended. The plaintiffs then 

filed a declaratory judgment action in Colorado. The defendants filed a motion to 

dismiss, arguing that the district court in Colorado lacked jurisdiction over them. 

On appeal from a dismissal order, the Tenth Circuit held that personal jurisdiction 

was proper in Colorado. In response to the defendants’ argument that under Red Wing 

Shoe they should not be subject to personal jurisdiction in Colorado simply for having 

sent a notice of infringement to the plaintiffs in that state, the court of appeals held Red 

Wing Shoe distinguishable on the ground that the defendants “went well beyond 

providing notice to plaintiffs of the claimed infringement and seeking settlement; [they] 

purposefully caused the cancellation of their auction and allegedly threatened their 

future access to eBay and the viability of their business.” 514 F.3d at 1082. Rather 

than simply sending a cease-and-desist letter to the plaintiffs, the defendants 

“communicated their complaint to a third party with the intent that the third party take 

action directly against plaintiffs’ business interests, something that thereafter occurred.” 

Id. The court therefore concluded that the exercise of jurisdiction was not protected by 

the policy consideration underlying Red Wing Shoe and that it was not “unfair or unjust” 

to allow the suit to proceed in Colorado. 
2008-1109 13 

Likewise, the Ninth Circuit held that a California district court could exercise 

personal jurisdiction over an out-of-state defendant in a somewhat similar situation. In 

Bancroft & Masters, Inc. v. Augusta National, Inc., 223 F.3d 1082 (9th Cir. 2000), the 

plaintiff, a California corporation, registered the Internet domain name “masters.com.” 

According to the plaintiff’s allegations, defendant Augusta National, which operates the 

Masters golf tournament, sent a cease-and-desist letter to the plaintiff in California and 

sent a second letter protesting the plaintiff’s use of the domain name to Network 

Solutions Inc. (“NSI”), at that time the sole registrar of Internet domain names. That 

letter, according to the plaintiff, was intended to trigger NSI’s dispute resolution 

procedures with the ultimate purpose of appropriating the “masters.com” domain name 

for itself. The Ninth Circuit held that the defendant’s conduct was sufficient to make it 

subject to suit in California. As the Ninth Circuit explained in a later case, under Red 

Wing Shoe a cease-and-desist letter is not in and of itself sufficient to establish personal 

jurisdiction over the sender of the letter, but the second letter went beyond the limited 

scope of the Red Wing Shoe policy and subjected the defendant to personal jurisdiction 

in the forum where the target of the defendant’s conduct was located. See Yahoo! Inc. 

v. La Ligue Contre Le Racisme et L’Antisemitisme, 433 F.3d 1199, 1208 (9th Cir. 2006). 

In this case, as in those two cases, the defendants’ conduct went beyond simply 

informing the plaintiff that they regarded the plaintiff’s products as infringing. According 

to the plaintiff’s allegations, which were credited by the district court for purposes of the 

motion to dismiss, the defendants took steps to interfere with the plaintiff’s business by 

enlisting a third party to take action against the plaintiff. Although Ms. Miale’s efforts in 

that regard were not successful (unlike the efforts of the defendant in the Dudnikov
2008-1109 14 

case), in that the exhibit manager at the Seattle convention allegedly declined to 

remove Campbell’s exhibit at Ms. Miale’s behest, the pertinent step taken by Ms. Miale 

was the request that action be taken. The fact that her efforts did not succeed does not 

affect whether it is fair and just to treat her actions directed at Campbell as sufficient to 

trigger personal jurisdiction in the forum state. Moreover, unlike the situation in both 

Dudnikov and Bancroft & Masters, Ms. Miale’s efforts at private enforcement occurred 

within the forum state and while she was personally present there. Under these 

circumstances, we hold that it would not be contrary to the principles of the Red Wing 

Shoe line of cases for the district court to assert jurisdiction over Ms. Miale and Ty-Lift 

based on Campbell’s allegations. 

Finally, the defendants argue that it would offend traditional notions of fair play 

and substantial justice to subject Ty-Lift and Ms. Miale to suit in the Western District of 

Washington, in light of the small size of the defendants’ business and the burden that 

would be entailed in forcing the defendants to defend this suit in that district. While the 

burdens of litigation in remote districts can be considerable, it appears that Campbell is 

also a small business and that forcing Campbell to defend a patent infringement action 

in a remote jurisdiction such as the Southern District of California would be similarly 

burdensome for Campbell. As for the defendants’ contention that California has an 

interest in discouraging injuries that occur within the state, including patent infringement, 

Campbell counters with the argument that Washington has an interest in protecting its 

residents from charges of unlawful conduct and efforts to interfere with their business 

activities. See Akro Corp., 45 F.3d at 1549 (“The injury of which Akro complains—

restraint of its production of goods by means of a non-infringed, invalid and/or 
2008-1109 15 

unenforceable patent—falls well within the boundaries of the sorts of injuries that Ohio 

has an interest in discouraging.”). In any event, the district court predicated its 

“fairness” decision entirely on the Red Wing Shoe policy protecting the right of 

patentees to communicate allegations of infringement, and not on the relative 

burdensomeness on the parties of litigation in Washington as opposed to litigation in 

another forum. Finally, to the extent that the defendants’ fairness argument is based on 

their contention that “it is Campbell who copied a patented product,” that argument 

cannot be given weight because it assumes the correctness of the very allegation that is 

at issue in the litigation. 

IV 

Other than asserting that Ms. Miale’s actions at the June 2007 convention 

constituted nothing more than attempts to inform Campbell of the Miale patents, the 

defendants argue that the portions of the affidavits on which Campbell relies are 

inadmissible hearsay. We need not address Ms. Miale’s hearsay objection at this 

stage, however, because this appeal merely requires that we address whether the 

uncontroverted facts alleged by Campbell in its affidavits and complaint support a prima 

facie showing that the district court had personal jurisdiction over the defendants. See

Akro Corp., 45 F.3d at 1543; 5B Charles Alan Wright & Arthur R. Miller, Federal 

Practice and Procedure § 1351 (3d ed. 2004) (the plaintiff “needs only make a prima 

facie showing when the district judge restricts her review of the Rule 12(b)(2) motion 

solely to affidavits and other written evidence.”); see also id. § 1364 (district court has 

discretion to consider hearsay evidence introduced in conjunction with a Rule 12(b) 
2008-1109 16 

motion). The court in Mattel, Inc. v. Greiner & Hausser GMBH, 354 F.3d 857 (9th Cir. 

2003), explained how cases in this procedural posture are to be treated: 

Where, as here, the district court did not hold an evidentiary 

hearing, a plaintiff need only make a prima facie showing of jurisdiction to 

survive the motion to dismiss. To make that showing, Mattel need only 

demonstrate facts that, if true, would support jurisdiction over the 

Defendants. Unless directly contravened, Mattel’s version of the facts is 

taken as true, and conflicts between the facts contained in declarations 

submitted by the two sides must be resolved in Mattel’s favor for purposes 

of deciding whether a prima facie case for personal jurisdiction exists. 

The procedural posture of this case is important. We do not decide 

whether Mattel has proven its contentions, but only whether it has made a 

prima facie case for personal jurisdiction. 

Id. at 862. Although the defendants objected to Campbell’s hearsay evidnece, they did 

not controvert the truth of those assertions. Like the district court, we therefore assume 

the truth of Campbell’s allegations.1 Our ruling on this issue, however, does not mean 

that Campbell has no obligation at any point to prove the truth of its jurisdictional 

allegations. On remand, the district court may in its discretion hold an evidentiary 

hearing to determine whether Campbell can prove the district court’s jurisdiction over 

the defendants by a preponderance of the evidence. 

V 

The defendants also argue that Ms. Miale’s conduct at the 2007 convention 

cannot serve as the basis for exercising personal jurisdiction over her because she was 

acting in her official capacity as the president of Ty-Lift, not in her personal capacity. 

The defendants therefore argue that, while the district court might have jurisdiction over 

 

1

 Although the defendants argue that hearsay evidence may not be admitted in 

connection with a motion to dismiss for lack of personal jurisdiction, this court has held 

that there is no strict prohibition on a court’s consideration of hearsay in connection with 

such a motion. Akro Corp., 45 F.3d at 1546-47; Beverly Hills Fan, 21 F.3d at 1562. 
2008-1109 17 

Ty-Lift, it cannot assert jurisdiction over Ms. Miale. That argument is without merit. The 

Supreme Court rejected a nearly identical argument made by the petitioners in Calder v. 

Jones, 465 U.S. 783 (1984). The petitioners, a reporter and an editor for the National 

Enquirer, claimed that the National Enquirer’s circulation of an article in California could 

not serve as the basis for personal jurisdiction over them. Id. at 789. The Court stated: 

Petitioners are correct that their contacts with California are not to be 

judged according to their employer’s activities there. On the other hand, 

their status as employees does not somehow insulate them from 

jurisdiction. Each defendant’s contacts with the forum State must be 

assessed individually. 

Id. at 790. We likewise reject the defendants’ argument that Ms. Miale is not subject to 

personal jurisdiction based on her activities in and directed to the forum state. Because 

we reject that argument, we also reject the defendants’ argument that the district court’s 

dismissal can be affirmed on the basis that Ms. Miale, as the patent owner, is an 

indispensable party over whom the district court lacked jurisdiction. 

VI 

 Because Campbell’s allegations in its affidavits and complaint provide a sufficient 

basis for the district court to exercise specific jurisdiction over the defendants, we 

reverse the district court’s dismissal of Campbell’s complaint and remand the case to 

the district court for further proceedings consistent with this opinion. 

REVERSED and REMANDED.