PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-2120

PERDUE FOODS LLC,

Plaintiff - Appellant,

v.

BRF S.A.,

Defendant - Appellee.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. James K. Bredar, District Judge. 

(1:14-cv-01007-JKB)

Argued: December 9, 2015 Decided: February 19, 2016 

Before MOTZ and FLOYD, Circuit Judges, and John A. GIBNEY, Jr., 

United States District Judge for the Eastern District of 

Virginia, sitting by designation.

Affirmed by published opinion. Judge Motz wrote the opinion, in 

which Judge Floyd and Judge Gibney joined.

ARGUED: Damon W.D. Wright, VENABLE LLP, Washington, D.C., for 

Appellant. Jeffrey Eric Ostrow, SIMPSON THACHER & BARTLETT LLP, 

Palo Alto, California, for Appellee. ON BRIEF: Brandon C. 

Martin, Palo Alto, California, Lori E. Lesser, SIMPSON THACHER & 

BARTLETT LLP, New York, New York; Geoffrey H. Genth, KRAMON & 

GRAHAM, P.A., Baltimore, Maryland, for Appellee.
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DIANA GRIBBON MOTZ, Circuit Judge:

Perdue Holdings, Inc. appeals the district court’s 

dismissal of its breach of contract action against BRF S.A. for 

lack of personal jurisdiction. Perdue contends that BRF 

purposefully availed itself of the privilege of doing business 

in Maryland, and thus that personal jurisdiction over BRF 

properly lies in the United States District Court for the 

District of Maryland. For the reasons that follow, we affirm.

I.

Perdue, a wholly owned subsidiary of a family-owned

international food producer headquartered in Maryland, sells 

poultry using the mark “PERDUE.” BRF, an international food 

company and exporter of poultry meats headquartered in Brazil, 

sells poultry using the mark “PERDIX.” BRF’s sole connection to 

Maryland is its relationship with Perdue.

In 2002, Perdue became concerned about potential consumer 

confusion between the similar PERDUE and PERDIX trademarks. 

Perdue contacted BRF’s predecessor, Perdigão Agroindustrial 

S.A., and the parties negotiated -- remotely -- a 2003 

“Worldwide Coexistence Agreement” and a later 2005 addendum 

(hereafter collectively “the Agreement”). BRF executed the 

Agreement in Brazil and Perdue executed it in Maryland.
3

In the Agreement, the parties stated that they sought “to 

avoid any and all confusion between” their respective marks and 

“to resolve all pending and future possible controversies

regarding” the marks. To that end, Perdue agreed to refrain 

from registering its PERDUE mark in Brazil, and BRF agreed to 

abandon a version of its PERDIX mark worldwide. The parties 

also agreed to withdraw opposition worldwide to each other’s 

marks that complied with the Agreement. The Agreement states 

that it will remain in force for the life of the respective 

trademarks. It contains a Maryland choice-of-law clause.

From 2012 to 2014, Perdue bought an aggregate 715,000 

pounds of chicken (valued at approximately $606,903.80) from 

BRF. Perdue sent purchase orders from Maryland and BRF sent 

invoices to Maryland for the orders, but at Perdue’s direction 

BRF shipped the chicken from Brazil to Tanzania.

Later in 2014, Perdue brought this action against BRF in

federal court in the District of Maryland. Perdue alleged that 

BRF breached the Agreement by pursuing new applications for 

trademark registrations in Argentina, Morocco, São Tomé & 

Príncipe, and Uruguay and by refusing to abandon existing 

trademark registrations in Canada, China, Hong Kong, Kuwait, 

Lebanon, Argentina, Bolivia, Paraguay, and Uruguay (hereafter, 

“Foreign Countries” refers to these two groups of countries 

collectively).
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Pursuant to Fed. R. Civ. P. 12(b)(2), BRF moved to dismiss 

Perdue’s suit for lack of personal jurisdiction. The district 

court held that Perdue had failed to allege facts sufficient to 

establish that BRF had the requisite minimum contacts with 

Maryland. Accordingly, the court held that it lacked personal 

jurisdiction over BRF and granted BRF’s motion to dismiss. 

Perdue filed this timely appeal.

II.

The sole issue on appeal is whether the district court had 

personal jurisdiction over BRF. We review a judgment dismissing

for lack of personal jurisdiction de novo. Consulting Eng’rs 

Corp. v. Geometric Ltd., 561 F.3d 273, 276 (4th Cir. 2009). 

Where, as here, the district court decides jurisdiction on the 

motion papers alone, the plaintiff need only make a “prima facie 

showing of a sufficient jurisdictional basis” to prevail. Combs 

v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989).

When a federal court sits in diversity, it “has personal 

jurisdiction over a non-resident defendant if (1) an applicable 

state long-arm statute confers jurisdiction and (2) the 

assertion of that jurisdiction is consistent with constitutional 

due process.” Nichols v. G.D. Searle & Co., 991 F.2d 1195, 1199 

(4th Cir. 1993). The reach of Maryland’s long-arm statute is 

coextensive with the reach of the Due Process Clause of the
5

United States Constitution, so the “statutory inquiry merges 

with [the] constitutional examination.” Beyond Sys., Inc. v. 

Realtime Gaming Holding Co., LLC, 878 A.2d 567, 580 (Md. 2005).

A court may exercise general or specific personal 

jurisdiction. General personal jurisdiction requires

“continuous and systemic” contacts with the forum state. See

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

414-16 (1984). Perdue does not claim that BRF has such contacts 

with Maryland and does not assert that the district court had 

general personal jurisdiction over BRF. What Perdue does claim 

is that the district court had specific personal jurisdiction 

over BRF arising from BRF’s contacts with Perdue.

For a court to have specific personal jurisdiction over a 

defendant, the defendant must have “purposefully established 

minimum contacts in the forum State” such “that [it] should 

reasonably anticipate being haled into court there.” Burger 

King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985) (internal 

quotation marks and citations omitted). This analysis is not 

“mechanical,” id. at 478; a court must weigh “the totality of 

the facts before” it, Universal Leather, LLC v. Koro AR, S.A., 

773 F.3d 553, 561 (4th Cir. 2014). To determine whether

specific jurisdiction lies in the forum state, “we consider (1) 

the extent to which the defendant purposefully availed itself of 

the privilege of conducting activities in the State; (2) whether 
6

the plaintiffs’ claims arise out of those activities directed at 

the State; and (3) whether the exercise of personal jurisdiction 

would be constitutionally reasonable.” ALS Scan, Inc. v. 

Digital Serv. Consultants, Inc., 293 F.3d 707, 712 (4th Cir. 

2002) (internal quotation marks omitted). The plaintiff must 

prevail on each prong. Consulting Eng’rs, 561 F.3d at 278.

III.

Perdue’s contention that a federal court in Maryland has 

personal jurisdiction over BRF falters on the first prong. 

Under that prong, we consider numerous nonexclusive factors to 

assess a party’s purposeful availment. Consulting Eng’rs, 561 

F.3d at 278. In the business context, these factors include

whether the defendant “maintains offices or agents in the forum 

state;” “owns property in the forum state;” “reached into the 

forum state to solicit or initiate business;” “deliberately 

engaged in significant or long-term business activities in the 

forum state;” or “made in-person contact with the resident of 

the forum in the forum state regarding the business 

relationship.” Id. We also consider “whether the parties 

contractually agreed that the law of the forum state would 

govern disputes;” “whether the performance of contractual duties 

was to occur within the forum;” and “the nature, quality and 
7

extent of the parties’ communications about the business being 

transacted.” Id.

Perdue has alleged few facts to satisfy its prima facie 

burden in support of personal jurisdiction. Indeed, the only

fact that it alleges that indisputably weighs in favor of

jurisdiction is that the Agreement includes a Maryland choiceof-law clause.

Many undisputed facts indicate that a Maryland court does 

not have personal jurisdiction over BRF. The company employs no 

Maryland officers or agents and owns no property in the state. 

BRF did not initiate the negotiations that led to the Agreement, 

and no BRF employee traveled to Maryland in connection with the 

Agreement. BRF conducts no business in Maryland: it does not 

import any products into or sell or ship products to any clients 

in Maryland, and it has no contract with any entity in Maryland 

other than Perdue. BRF’s alleged breach of the Agreement

occurred not in Maryland, but in the Foreign Countries.1

Further, the Agreement does not even require Perdue to 

perform any contractual duties in Maryland. If BRF had entered 

 1 Perdue also alleged that BRF had filed, but had later 

withdrawn, intent-to-use trademark applications for the PERDIX 

mark with the United States Patent and Trademark Office. 

Assuming that this constituted breach of the Agreement, the 

breach did not occur in Maryland -- the United States Patent and 

Trademark Office is headquartered in Virginia. See About Us, 

United States Patent and Trademark Office, 

http://www.uspto.gov/about-us (last modified Feb. 12, 2015).
8

a contract that required Perdue to perform significant 

contractual duties in Maryland, personal jurisdiction over BRF 

might lie in Maryland. See Peanut Corp. of Am. v. Hollywood 

Brands, Inc., 696 F.2d 311, 314 (4th Cir. 1982). But although 

Perdue executives may decide global trademark strategy in 

Maryland, the Agreement does not require those decisions to take 

place in Maryland.

Nor can Perdue establish that BRF “deliberately engaged in 

significant or long-term business activities in the forum 

state.” Consulting Eng’rs, 561 F.3d at 278. Of course, such a 

showing could provide a basis for personal jurisdiction over a 

defendant, as it did in Burger King. Moreover, a plaintiff may 

be able to make such a showing through a single contract because 

often a contract is “but an intermediate step serving to tie up 

prior business negotiations with future consequences which 

themselves are the real object of the business transaction.” 

Burger King, 471 U.S. at 479 (internal quotation marks omitted). 

Thus, specific personal jurisdiction can arise from one contract

“where the defendant deliberately has engaged in significant 

activities within a State, or has created continuing obligations 

between [it]self and residents of the forum.” Id. at 475-76 

(internal quotation marks and citations omitted).
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In Burger King, the Court held that, although the defendant 

lacked other contacts with the forum state, a single contract

provided a sufficient basis for personal jurisdiction. Id. at 

478-80. That contract was a franchise agreement between the 

Burger King Corporation, headquartered in Florida, and a 

franchisee citizen of Michigan. Id. at 464-66. The franchisee 

initiated negotiations with Burger King for a franchise 

agreement, but never traveled to Florida. Id. at 479-80. The 

franchise agreement contained not just a Florida choice-of-law 

provision, like the Agreement here, but also other significant 

provisions not present here. Id. at 465-66. The franchise 

agreement established “a carefully structured 20-year 

relationship that envisioned continuing and wide-reaching 

contacts with Burger King in Florida.” Id. at 480. The 

franchisee promised to pay a franchise fee, monthly royalties, 

advertising and sales promotion fees, and rent to Burger King in 

Florida, and to submit to regulation from Burger King in 

Florida. Id. at 465-66. Weighing all of these factors, the 

Supreme Court held that the federal district court in Florida 

had personal jurisdiction over the Michigan franchisee.

Here, by contrast, the Agreement does not establish a 

series of continuing contacts between BRF and Perdue in 
10

Maryland.2 The Agreement does not launch any ongoing 

collaboration or promise frequent interactions between these two 

companies. Rather, it expressly prevents BRF from doing 

business in Maryland with a version of its trademark. Of 

course, this constitutes a contractual duty. And the Agreement

was certainly significant, given its global nature and branding 

implications. But these ongoing duties not to do business in 

Maryland do not demonstrate that BRF purposefully availed itself 

of the privilege of doing business in Maryland.

Perdue contends that, in Burger King, the Supreme Court 

held that all contracts creating continuing obligations with a 

party in the forum state require a finding of purposeful 

availment. We do not read Burger King as creating such a 

bright-line rule. First, as discussed above, Burger King itself 

admonished that personal jurisdiction cannot “turn on mechanical

 2 Perdue contends that we should consider facts that speak 

to whether BRF deliberately engaged in significant activities in 

Maryland separately from those that speak to whether it created 

continuing obligations with Maryland residents. However, the 

“constitutional touchstone” of the analysis articulated in 

Burger King is “whether the defendant purposefully established 

‘minimum contacts’ in the forum State.” 471 U.S. at 474 

(internal citations omitted). “Continuing obligations” alone 

can potentially suffice, but courts need not consider any facts 

or factors in isolation when analyzing the defendant’s contacts 

with the forum state. The Burger King Court itself considered 

that the defendant “did not maintain offices in” the forum state 

and “ha[d] never even visited there” in addition to considering 

the continuing obligations created between the defendant and the 

forum state by virtue of the franchise agreement. Id. at 479.
11

tests.” 471 U.S. at 478 (internal quotation marks omitted). 

Second, implicit in the Supreme Court’s distinction between a 

contract -- which cannot, by itself, establish purposeful 

availment, id. at 478 -- and a contract with continuing 

obligations -- which “manifestly” constitutes purposeful 

availment, id. at 475-76 -- is the assumption that the 

continuing obligations strengthen a defendant’s contacts with 

the plaintiff’s forum. Cf. id. at 479 (noting that future 

consequences are ordinarily “the real object of [a] business 

transaction” (citation and internal quotation marks omitted)). 

The “continuing obligations” set forth in the Agreement in this 

case did no such thing. They had no effect on the “extent, 

nature, and quality” of BRF’s contacts with Maryland. See

Consulting Eng’rs, 561 F.3d at 281.

In an attempt to equate its case to Burger King, Perdue 

points to a handful of intermittent chicken orders as evidence 

of a collaborative, long-term relationship that it maintains

would not have existed absent the Agreement. Perdue argues that

without the Agreement the companies would have been litigating 

over trademarks instead of doing business together. But even if 

the Agreement made these chicken orders possible, these contacts 

-- receiving purchase orders from and sending invoices to 

Maryland for chicken shipments to Tanzania -- are far more 
12

attenuated than the frequent and important contacts that the 

Burger King franchise agreement contemplated.

We recognize that physical presence in the forum state is 

not essential. Rather, “it is an inescapable fact of modern 

commercial life that a substantial amount of business is 

transacted solely by mail and wire communications across state 

lines, thus obviating the need for physical presence within a 

State in which business is conducted.” Burger King, 471 U.S. at 

476. We emphasize that if the parties had entered a contract

that created a meaningful relationship with frequent 

communication, even if no BRF employee entered Maryland,

personal jurisdiction might well lie in the federal district 

court in Maryland. However, BRF neither purposefully directed 

activities toward Maryland nor established regularly recurring 

and ongoing interactions with Perdue in Maryland. “Because a 

sovereign’s jurisdiction remains territorial, to justify the 

exercise of personal jurisdiction over a non-resident defendant, 

the defendant’s contacts with the forum state must have been so 

substantial that they amount to a surrogate for presence and 

thus render the exercise of sovereignty just.” Consulting 

Eng’rs, 561 F.3d at 277-78 (internal quotation marks omitted). 

Such substantial contacts are absent here.

Given the undisputed facts in this case, we can only 

conclude that BRF did not purposefully avail itself of the 
13

privilege of doing business in Maryland. Thus, the district 

court correctly held that it lacked personal jurisdiction over 

BRF.

IV.

For the foregoing reasons, the judgment of the district 

court is

AFFIRMED.