## United States Court of Appeals for the Federal Circuit

2008-1109

THE CAMPBELL PET COMPANY, Plaintiff-Appellant,

v. THERESA MIALE and TY-L IFT 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 Cour t 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 Cour t 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 St ate 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 Calif ornia resident. The district court held that the patent owner’s activities were not suffi cient 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 Cam pbell Pet Company concerning personal jurisdiction, which the district court accept ed as true for purposes of its jurisdictional ruling, are the following: Campbell is a company located in Vancouver, Washington, that manufactures and sells pet accessori es and products, including mobile folding stretchers for transporting injured animals. De fendant Ty-Lift Enterprises is a California corporation that is who lly owned by defendant Theresa Miale and her mother. The company sells mobile stretchers for transporti ng injured animals, incl uding 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 sa les averaging $93,600 per year. During that period, the company sold 12 units, either stretchers or t ables, 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 resi dents, 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 Co llege of Veterinary Internal Medicine. During that convention, Ms. Miale demonstr ated 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 pr oducts. In the course of the convention, Ms. Miale and her mother confronted several of Campbe ll’s employees who were attending the2008-1109 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 lit igation, stating that patent attorneys and litigation were expensive. The Campbell employees furt her 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 in fringed Ms. Miale’s pat ents, but that the convention manager had declined to do so on t he ground that she wa s not qualified to evaluate a claim of patent infringement. T he 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 infr inged the Miale patents. Shortly thereafter, Campbell filed suit in the United States District Court for the Western District of Washington seeking a declaration of noninfri ngement 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 dism iss. The court first held that the level of contact between the defendants and the forum state was not suffici ently “substantial” and “continuous and systematic” to justify t he 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 fo rum 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 Ca mpbell’s contention that general jurisdiction could be found based on the def endants’ website, because t he website had produced no sales in Washington during the eight y ears 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 s pecific jurisdiction: (1) whether the forum state’s long-arm statute would permit service of process under the ci rcumstances of the case, and (2) whether the assert ion of personal jurisdiction would violate due process. The Washington long-arm statute permits t he state’s courts to exercise personal jurisdiction over any defendant who transacts any business within the state, and under Washington law, the “transacti on of any business” is consi dered to be co-extensive with the limits of due process with res pect 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 aris e from or be connected with t hat transaction, and (3) the assumption of jurisdiction by the forum state not offend traditional not ions of fair play2008-1109 5 and substantial justice. The court found the first factor satisfied in light of the defendants’ sales to customers in Washingt on and Ms. Miale’s participation in a trade show there. However, the c ourt found that the second factor was not satisfied, because “the plaintiff claimed no injury flowing from the defendant’s pr oduction, marketing and sale of its products in the forum state.” The court consequently concluded that there was “no nexus between the defendant’s marketi ng 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 reconsiderati on, noting that the di strict 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 J une 2007 convention both the first and second factors in the specific jurisdiction test were satisfi ed. The court found, first, that the defendants had “acted purposefully and cons ummated transactions” in the State of Washington, and, second, that the clai m of noninfringement was sufficiently connected with the defendants’ actions within the state. With res pect to the third factor, however, the court concluded that principles of fair play and s ubstantial justice “afford a patentee sufficient latitude to inform others of its patent rights wit hout subjecting itself to jurisdiction in a foreign forum.” The court added that standar ds of fairness demand that a patentee “be insulated from personal jurisdiction in a di stant forum when its only contacts with that2008-1109 6 forum were efforts to give proper notice of its patent rights.” Because the court regarded the actions of the def endants as “akin to submitting cease and desist letters,” the court held that the third fa ctor bearing on specific jurisdiction was not satisfied. The court therefore denied the mo tion for reconsideration.
II The district court was clearly correct in ruling that it di d not have general jurisdiction over the defendants. As the di strict 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 ov er eight years to cu stomers in the State of Washington, which the c ourt found to reflect far less than the required “continuous and systematic” contacts with the state. In challenging the district court’s ruling, Ca mpbell 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 concerni ng general jurisdiction is misplaced, as that case addressed the r equirements 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 the2008-1109 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), t he defendants’ website does not establish general jurisdiction in Washington, bec ause it was not specifically directed at Washington, “but instead is available to a ll customers throughout t he 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 def endants have made sufficient sales to customers in Washington to establish general jurisdiction there. We agree with the district court, however, that the very sma ll volume of sales t hat the defendants have made to customers in Washington falls far s hort 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. T hat 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 defendan t. The instant case is a classic case of sporadic and insubstantial cont acts with the forum state, which are not sufficient to establish general jurisdiction ov er 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 dist rict court in the forum state if the state’s long-arm statute would permit servic e of process on t he 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 ext ends to the limits of due proc ess, the two-part inquiry collapses into one—whether due process c onsiderations permit the exercise of jurisdiction. Resolving that question requires the cour t 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 t hat arise out of or relate to those activities.” Burger King , 471 U.S. at 472-73 (cit ations and internal quotations omitted). If the court concludes that those two conditi ons 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 Suprem e 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 jurisd iction by a court that otherwise would have personal jurisdiction over t he defendant, “he must present a compelling2008-1109 9 case that the presence of some other considerations would render jurisdiction unreasonable.” Burger King , 471 U.S. at 477. This cour t 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 adjudi cating the dispute in the forum are so attenuated that they are clear ly 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 fa ctors bearing on the “r easonableness” inquiry under the Burger King standard: The reasonableness inquiry encompasses factors including (1) the burden on the defendant, (2) the interests of t he forum state, (3) the plaintiff’s interest in obtaining relief, (4) the inte rstate judicial system’s interest in obtaining the most efficient resolution of controversies, and (5) the shared interest of the several states in fu rthering fundamental s ubstantive 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 f ound that the defendants had purposely engaged in transactions in Wash ington during the th ree-day convention in June 2007, and the court found t hat the cause of action for a declaratory judgment of patent noninfringement and inva lidity arose from or wa s 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 ex ercising personal jurisdiction over the defendants based on the activities at t he 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 s ending letters to another state claiming infringement and threatening litigat ion 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]rinciple s of fair play and substantial justice afford a patentee sufficient latitude to inform other s 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 proc ess 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 acti vities are required in order for a patentee to be subject to personal jurisdiction in t he forum.” Where the patentee has engaged in sufficient additional conduct, beyond merely info rming others of its pa tent rights and its intention to enforce those rights through lit igation, 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 activiti es by the defendant, such as visiting the plaintiff, hiring an attorney, and telephoning the plaintiff there on several occasions were sufficient to justify personal ju risdiction 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 pers onal jurisdiction in the forum state); Genetic Implant Sys. , 123 F.3d at 1458 (personal jurisd iction upheld where, beyond sending cease-and-desist letters, defendant engaged in a program to develop a market in the forum state, including developing cust omer lists and advertising there); Akro Corp. , 45 F.3d at 1548-49 (exclusive licensi ng 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 mo re than attempts to inform Campbell of suspected infringement. As Campbell points ou t, its employees’ affidavits assert that Ms. Miale did more at the trade show than simply inform Campbell that its animal stretchers might infringe her pat ents. 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 jurisdicti on, Ms. Miale’s attempts at “extra-judicial patent enforcement” were target ed at Campbell’s business acti vities in Washington and can fairly be characterized as attempts to lim it 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 closel y 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 Tent h Circuit held that personal jurisdiction was proper in Colorado. In respons e 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 stat e, the court of appeals held Red Wing Shoe distinguishable on the ground that the defendants “went well beyond providing notice to plaintiffs of the clai med infringement and seeking settlement; [they] purposefully caused the canc ellation of their auction and allegedly threatened their future access to eBay and the viability of t heir business.” 514 F.3d at 1082. Rather than simply sending a cease-and-desist le tter 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 inte rests, something that thereafter occurred.” Id. The court therefore concl uded that the exercise of juri sdiction 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 distri ct 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 corporat ion, 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-desis t letter to the plaintiff in California and sent a second letter protesting the plaintiff’s use of the dom ain name to Network Solutions Inc. (“NSI”), at that time the sole registrar of Internet domain names. That letter, according to the plaintiff, was in tended to trigger NSI’s dispute resolution procedures with the ultimate purpose of appropriating the “mast ers.com” domain name for itself. The Ninth Circuit held that t he 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 suffici ent 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 credi ted 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 t he plaintiff. Although Ms. Miale’s efforts in that regard were not successful (unlik e the efforts of the defendant in the Dudnikov2008-1109 14 case), in that the exhibi t 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 stat e. Moreover, unlike the situation in both Dudnikov and Bancroft & Masters , Ms. Miale’s efforts at pr ivate enforcement occurred within the forum state and while she was personally present ther e. 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 a ssert jurisdiction over Ms. Miale and Ty-Lift based on Campbell’s allegations. Finally, the defendants argue that it would o ffend 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 Cam pbell to defend a patent infringement action in a remote jurisdiction such as the Souther n District of California would be similarly burdensome for Campbell. As for the defendant s’ contention that California has an interest in discouraging injuries that occur within the state, incl uding patent infringement, Campbell counters with t he 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/or2008-1109 15 unenforceable patent—falls well wit hin 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 pat ented 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 porti ons 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 dist rict court had personal jurisd iction 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 plainti ff “needs only make a prima facie showing when the district judge restrict s her review of the Rule 12(b)(2) motion solely to affidavits and ot her written evidence.”); see also id. § 1364 (district court has discretion to consider hearsay evidence in troduced 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 c ourt 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, w ould 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 re solved in Mattel’s favor for purposes of deciding whether a prima facie ca se for personal jurisdiction exists. The procedural posture of this case is important. We do not decide whether Mattel has proven its contenti ons, but only whether it has made a prima facie case for personal jurisdiction. Id. at 862. Although the defendant s objected to Campbell’s hearsay evidnece, they did not controvert the truth of those assertions. Like the district cour t, 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 cour t may in its discreti on hold an evidentiary hearing to determine whether Campbell can prov e the district court’s jurisdiction over the defendants by a preponderanc e of the evidence.
V The defendants also argue that Ms. Mial e’s conduct at the 2007 convention cannot serve as the basis for exercising pers onal 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 tha t, 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 hearsa y 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 jurisd iction 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 petitioner s, a reporter and an editor for the National Enquirer , claimed that the National Enquirer ’s circulation of an ar ticle in California could not serve as the basis for personal jurisdiction over them. Id. at 789. The Court stated: Petitioners are correct that their cont acts with California are not to be judged according to their employer’s ac tivities there. On the other hand, their status as employees does not somehow insulate them from jurisdiction. Each defendant’s contac ts with the forum State must be assessed individually. Id. at 790. We likewise reject the defendants’ argument that Ms. Mial e 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 a ffidavits 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 proc eedings consistent with this opinion. REVERSED and REMANDED

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