2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-29-2014

Richard Ackourey, Jr. v. Sonellas Custom Tailors

Precedential or Non-Precedential: Non-Precedential

Docket No. 13-3818

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Recommended Citation

"Richard Ackourey, Jr. v. Sonellas Custom Tailors" (2014). 2014 Decisions. Paper 771.

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1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-3818

___________

RICHARD C. ACKOUREY, JR.,

d/b/a GRAPHIC STYLES/STYLES INTERNATIONAL LLC,

 Appellant

v.

SONELLAS CUSTOM TAILORS, a/k/a HONG KONG TAILORS (USA);

DILEEP KUMAR DASWANI, a/k/a KEN DASWANI

_______________________

On Appeal from the District Court

for the Eastern District of Pennsylvania

D.C. Civil No. 2-12-cv-06729

(Honorable Jan E. DuBois)

______________

Submitted Pursuant to Third Circuit LAR 34.1(a)

June 05, 2014

Before: HARDIMAN, SCIRICA, and ROTH, Circuit Judges

(Filed: July 29, 2014)

_________________

OPINION OF THE COURT

_________________

SCIRICA, Circuit Judge.
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Richard Ackourey, Jr. appeals an order of the District Court dismissing his 

copyright infringement suit against Sonella’s Custom Tailors and Dileep Kumar Daswani 

for lack of personal jurisdiction under Fed. R. Civ. P. 12(b)(2). Because there was an 

insufficient basis for personal jurisdiction, we will affirm.1

I.

Since we write solely for the benefit of the parties, we recount only those facts 

relevant to the issues before us. Plaintiff Richard Ackourey, Jr. is a Pennsylvania resident 

who owns copyrights in two fashion stylebooks published in 2005 and 2006. The 

stylebooks contain images of various fashion clothing designs. The stylebook images are 

subject to re-use and redistribution in accordance with various licensing arrangements. 

Defendant Dileep Kumar Daswani is an Oregon resident and the owner of 

Sonella’s Custom Tailors (“SCT”), an apparel business operated out of Daswani’s home 

in Beaverton, Oregon. All of SCT’s business is conducted in person at consultation 

appointments. SCT’s website allows prospective customers to email requests for 

consultation appointments and advertises a travel schedule that lists available 

appointments in Oregon and various locations throughout the United States. The website 

does not allow customers to place orders, make payments, or engage in any business 

transaction. SCT appointments consist of showing fabric samples to customers, providing 

styling advice, and measuring customers for custom sizing. SCT sends any orders made 

 

1

The District Court had subject matter jurisdiction under 28 U.S.C. § 1331. We have 

appellate jurisdiction under 28 U.S.C. § 1291.
3

at these appointments to an independent supplier in Hong Kong. The Hong Kong supplier 

manufactures the custom clothing and ships the order directly to the customer.

In March 2005, Daswani ordered a copy of Ackourey’s 2005 stylebook. The book 

was shipped from Pennsylvania to Daswani’s Oregon address. Thereafter, SCT’s website 

allegedly displayed Ackourey’s copyrighted images without authorization. On December 

3, 2012, Ackourey filed a copyright infringement suit against SCT and Daswani in the 

United States District Court for the Eastern District of Pennsylvania. 

On April 29, 2013, Defendants filed a motion to dismiss for lack of personal 

jurisdiction under Rule 12(b)(2). In response, Ackourey argued Defendants established 

minimum contacts with the Commonwealth sufficient to support specific personal 

jurisdiction by directly targeting potential customers in Pennsylvania and by purchasing 

the 2005 stylebook. Ackourey did not request jurisdictional discovery, but submitted 

exhibits of screenshots of SCT’s website listing available appointments in Pennsylvania. 

Daswani averred that he has no customer base in Pennsylvania and has never travelled to 

Pennsylvania for business purposes. Daswani conceded he may have on rare occasion 

fulfilled an order for a Pennsylvania customer referred to him by a cooperating tailor.

The District Court issued an opinion and order on August 21, 2013, granting 

Defendants’ motion to dismiss. The court found Defendants’ “passive website and related 

non-Internet contacts are insufficient to support the exercise of specific jurisdiction over 

the defendants.” App. 11. Ackourey filed a timely notice of appeal.

II.

We review a district court’s decision concerning personal jurisdiction de novo, but 
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review its factual findings under a clearly erroneous standard. Control Screening LLC v. 

Technological Application & Prod. Co., 687 F.3d 163, 167 (3d Cir. 2012). Following a 

defendant’s Rule 12(b)(2) motion, plaintiff bears the burden of proving that jurisdiction 

exists by a preponderance of the evidence. Imo Indus., Inc. v. Kiekert AG, 155 F.3d 254, 

257 (3d Cir. 1998).

III.

Ackourey argues on appeal that the District Court erred in granting Defendants’ 

Rule 12(b)(2) motion because Defendants established minimum contacts with 

Pennsylvania sufficient to support the exercise of specific personal jurisdiction.2

Fed. R. Civ. P. 4(e) authorizes federal courts to exercise “personal jurisdiction 

over non-resident defendants to the extent permissible under the law of the state where 

the district court sits.” Pennzoil Prods. Co. v. Colelli & Assocs., Inc., 149 F.3d 197, 200 

(3d Cir. 1998). Pennsylvania’s long-arm statute permits courts to exercise personal 

jurisdiction over nonresident defendants “to the fullest extent allowed under the 

Constitution of the United States” and “based on the most minimum contact with this 

Commonwealth allowed under the Constitution.” 42 Pa. Cons. Stat. Ann. § 5322(b).

Constitutionally, federal courts may exercise specific personal jurisdiction over 

 

2 Ackourey also raises—for the first time on appeal—two additional arguments. First, he 

contends Defendants’ targeted advertising, use of Pennsylvania locations, and efforts to 

solicit Pennsylvania businesses are sufficient to support the exercise of general personal 

jurisdiction. Because Ackourey failed to raise this argument before the District Court, we 

decline to address it here. See Srein v. Frankford Trust Co., 323 F.3d 214, 224 n.8 (3d 

Cir. 2003) (“We have consistently held that we will not consider issues that are raised for 

the first time on appeal absent compelling reasons.” (internal quotation marks and 

citation omitted)). Second, Ackourey argues for jurisdiction based on the “effects test” of 

Calder v. Jones, 465 U.S. 783 (1984). Again, because Ackourey failed to raise this 

argument before the District Court, we decline to address it here.
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nonresident defendants only when the defendants have purposefully directed activities at 

and established “minimum contacts with [the forum] such that the maintenance of the suit 

does not offend traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. 

Washington, 326 U.S. 310, 316 (1945) (internal quotation marks and citation omitted). 

Moreover, the litigation must ‘“arise out of or relate to’ those activities.” Burger King 

Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (quoting Helicopteros Nacionales de 

Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984)). A defendant’s contacts with the forum 

state must be “such that he should reasonably anticipate being haled into court there.” 

World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). Random, 

fortuitous, or attenuated contacts are not sufficient to support jurisdiction. Id. at 295; see

Burger King, 471 U.S. at 475. 

Ascertaining specific personal jurisdiction in claims arising from Internet 

commerce requires courts to determine whether a defendant established minimum 

contacts through cyberspace. Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 

1123-24 (W.D. Pa. 1997). “[Zippo] has become a seminal authority regarding personal 

jurisdiction based upon the operation of an Internet web site.” Toys “R” Us, Inc. v. Step 

Two, S.A., 318 F.3d 446, 452 (3d Cir. 2003). When analyzing Internet commerce cases, 

“the likelihood that personal jurisdiction can be constitutionally exercised is directly 

proportionate to the nature and quality of commercial activity that an entity conducts over 

the Internet.” Zippo, 952 F. Supp. at 1124. This sliding scale ranges from situations 

where a defendant uses an interactive commercial website to actively transact business 

with residents of the forum state (personal jurisdiction exists) to situations where a 
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passive website merely provides information that is accessible to users in the forum state 

(personal jurisdiction does not exist). Id. To determine whether personal jurisdiction 

exists for situations between these extremes, we examine “the level of interactivity and 

commercial nature of the exchange of information that occurs on the Web site.” Id; see 

Toys “R” Us, 318 F.3d at 452. In Zippo, the court found personal jurisdiction existed 

where the defendant “[did] more than advertise on the Internet in Pennsylvania” by using 

its website to “contract[] with approximately 3,000 individuals and seven Internet access 

providers in Pennsylvania.” Zippo, 952 F. Supp. at 1126.

Ackourey alleges Defendants wrongfully displayed his copyrighted images on 

SCT’s website and contends Defendants established minimum contacts with the 

Commonwealth by (1) using the website to target potential customers in Pennsylvania, 

(2) selling custom-tailored apparel through appointments in Pennsylvania, and 

(3) reaching into Pennsylvania to purchase a copy of the 2005 stylebook. Following 

Defendant’s Rule 12(b)(2) motion, Ackourey bore the burden of proving that jurisdiction 

exists by a preponderance of the evidence. See Imo Indus., 155 F.3d at 257. Since specific 

jurisdiction requires a plaintiff’s claims to arise out of or relate to a defendant’s contacts 

with the forum, Burger King, 471 U.S. at 472, we must determine whether Ackourey has 

demonstrated that Defendants established constitutionally sufficient minimum contacts 

with Pennsylvania via their website. We find he has not.

Here, the “level of interactivity and commercial nature” of SCT’s website is 

minimal, Zippo, 952 F. Supp. at 1124, and does little “more than advertise on the Internet 

in Pennsylvania,” id. at 1126. The website lists a travel schedule and only allows 
7

potential customers to email requests for appointments. It does not permit customers to 

place orders, make payments, or engage in any business transactions. This low degree of 

commercial activity renders Defendants’ website essentially passive. See id. at 1124 (“A 

passive Web site that does little more than make information available to those who are 

interested in it is not grounds for the exercise [of] personal jurisdiction.”). 

Furthermore, even if scheduling appointments alone was sufficiently interactive 

and commercial under Zippo, Ackourey has failed to provide any evidence that 

Pennsylvania residents used Defendants’ website to schedule appointments. Daswani 

averred he has no customer base in Pennsylvania, has never travelled to Pennsylvania for 

any purpose related to his tailoring business, and only on rare occasion fulfilled an order 

for a Pennsylvania customer referred to him by a cooperating tailor. Ackourey provides 

no evidence refuting these claims and did not request jurisdictional discovery. Although 

Defendants’ website may have informed potential customers in Pennsylvania of the 

possibility of appointments in the Commonwealth, there is no evidence Defendants 

received any web-based requests for appointments in Pennsylvania or transacted any 

business whatsoever with Pennsylvania residents via its website. 

Finally, we agree with the District Court that Daswani’s purchase of a copy of 

Ackourey’s stylebook—which was shipped from Pennsylvania—is an attenuated contact 

with the Commonwealth insufficient to support the exercise of personal jurisdiction. 

Simply purchasing a book that happens to be shipped from Pennsylvania would not likely 

lead one to “reasonably anticipate being haled into court there.” World-Wide Volkswagen, 

444 U.S. at 297.
8

Accordingly, we agree with the District Court that Ackourey has failed to meet his 

burden of proving that personal jurisdiction exists. 

IV.

For the foregoing reasons, we will affirm the decision of the District Court 

granting Defendants’ Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction.