District Judge, Eastern District of Louisiana, sitting by designation. *

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50083

LAURIE D. MCFADIN, d/b/a Two Bar West; STACY L. MCFADIN, d/b/a Two

Bar West,

Plaintiffs - Appellants

v.

LYNN GERBER, d/b/a Foxy Roxy’s, d/b/a Eternal Perspective Handbags;

WILLIAM GERBER, II, d/b/a Foxy Roxy’s, d/b/a Eternal Perspective

Handbags; CONNIE GRENEMYER,

Defendants - Appellees

Appeal from the United States District Court 

for the Western District of Texas 

Before HIGGINBOTHAM and STEWART, Circuit Judges, and ENGELHARDT, *

District Judge.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Today we examine a Texas court’s personal jurisdiction over Colorado

residents Connie Grenemyer and Lynn and William Gerber. We agree with the

United States Court of Appeals

Fifth Circuit

F I L E D

November 9, 2009

Charles R. Fulbruge III

Clerk
No. 09-50083

2

district court that there is no jurisdiction over Connie Grenemyer and disagree

with the district court’s finding of lack of jurisdiction over the Gerbers.

I

Laurie and Stacie McFadin filed suit in the Western District of Texas

against Connie Grenemyer, Lynn Gerber, and William Gerber II claiming that

Grenemyer breached a sales representative agreement and that both Grenemyer

and the Gerbers sold knock-off versions of the McFadins’ handbags. The district

court dismissed the suit for want of personal jurisdiction.

The McFadins design and manufacture hand-made leather goods, such as

handbags and luggage, under the mark Two Bar West, selling wholesale to

brick-and-mortar retail stores. Two Bar West’s principal place of business is

located within the Western District of Texas, where the McFadins reside.

Connie Grenemyer is an independent sales representative who represents

various designers and manufacturers in the Rocky Mountain region, which

encompasses Arizona, Colorado, Idaho, Montana, New Mexico, Utah, and

Wyoming. Grenemyer maintains a showroom at the Denver Merchandise Mart

where she displays her clients’ merchandise. In addition, Grenemyer brings

samples of the merchandise to various retail stores and wholesale markets and

shows in her region. In her business she has never traveled to Texas nor does

she maintain a website.

In either 1995 or 1996, Grenemyer entered into a sales representative

relationship with Two Bar West after the company’s former sales representative

joined Grenemyer. In 1998, the McFadins approached Grenemyer at the Denver

market to discuss a more formal representation, reaching a written agreement.

They agreed that Grenemyer would be Two Bar West’s primary, if not exclusive,

sales representative and Two Bar West provided Grenemyer with samples for

her showroom. Under the agreement, Grenemyer received a twelve-percent

commission on all sales within the Rocky Mountain region and a six-percent
No. 09-50083

3

commission on all sales outside that region. Grenemyer took orders from various

retailers at her showroom at the Denver market and on her sales trips, faxing

the orders to Two Bar West in Texas. Two Bar West then shipped the goods

directly to the retailers. The retailers paid Two Bar West, which then mailed

commission checks to Grenemeyer in Colorado. Over the course of the ten year

period, Grenemyer took orders for over $1,000,000 of merchandise from her

Denver show room and sales trips in the Rocky Mountain region. Grenemyer

never took orders in Texas and only $40,000 of the orders were from Texas based

retailers. 

In January 2008, the McFadins traveled to Denver and terminated their

agreement with Grenemyer. A dispute arose regarding commissions owed to

Grenemyer, and Grenemyer refused to return the Two Bar West sample

merchandise until the dispute had been settled. The McFadins say that they do

not owe Grenemyer additional commissions and that Grenemyer either

wrongfully possesses or wrongfully sold around 650 pieces of merchandise.

II

In 2006, Two Bar West sold two handbags to Linda Gerber through

Grenemyer. Gerber is the sole proprietor of Foxy Roxy’s, which markets a line

of women’s western wear. Gerber maintains a website, foxyroxys.com, through

which she markets her products. The website provides a telephone number and

email address where potential customers may contact Gerber in Colorado,

however the website does not provide a mechanism to place orders directly. In

addition, Gerber attends shows where her products can be displayed. Gerber’s

only trip to Texas was not for business purposes.

Gerber purchased several more bags from Two Bar West for retail sale.

By 2008, when the McFadins terminated Grenemyer, Two Bar West no longer

sold Gerber its products. The McFadins allege that this cessation of business

followed an email exchange that led Laurie McFadin to believe that Gerber
No. 09-50083

4

would sell the Two Bar West bags over the internet rather than through brickand-mortar stores. Gerber maintains she ceased buying the bags “due to

numerous problems.”

That month, Gerber and her husband, William Gerber II, formed Eternal

Perspectives LLC, a Colorado Limited Liability Company. Eternal Perspectives

manufactures and markets “western buffalo hide bags and other buffalo

products.” The bags are marketed through Eternal Perspectives ’s website, Foxy

Roxy’s website, and by Grenemyer, who the Gerbers hired as a sales

representat i ve. Th e E t e r n a l Perspect i ves w ebsi t e ,

www.eternalperspectives.com, like the Foxy Roxy’s website, contains contact

information for the Gerbers, but offers no means for a client to purchase through

the site. The Eternal Perspectives website also listed Grenemyer as its sales

representative. However Grenemyer maintains she has not seen the site and

has received no calls as a result of the listing. Grenemyer maintains that sales

came solely from purchasers contacting Grenemyer in Colorado, by telephone,

email, or at the shows.

III

In March of 2008, Jason Brockman, a resident of Colorado and another

independent sales representative, brought pieces of the Eternal Perspectives

merchandise line to the Dallas Market Center merchandise trade show in

Dallas, Texas. Brockman and Grenemyer knew each other in Denver and would

occasionally act as sub-representative at shows the other did not attend. As

Grenemyer does not attend the Dallas show, Brockman offered to display some

of Grenemyer’s lines, including the Eternal Perspectives line. While Grenemyer

did not pay Brockman’s costs or plan his trip, the Gerbers and Eternal

Perspectives contributed to the costs of his booth at the show. Under this subrepresentation agreement, the main representative (in this case Grenemyer)

received a two-percent over-ride commission and the sub-representative
No. 09-50083

 Moncrief Oil Int’l v. OAO Gazprom, 481 F.3d 309, 311 (5th Cir. 2007). 1

 Luv N’ Care, Ltd., v. Insta-Mix, Inc., 438 F.3d 465, 469 (5th Cir. 2006). 2

 Id.

3

 Moncrief Oil Int’l, 481 F.3d at 311. 4

5

(Brockman) received a ten-percent commission on any sales. At the Dallas show,

Brockman made several sales, though not enough to be profitable and only four

of the customers were Texas-based. Additionally, Brockman wrote two orders

for Eternal Perspectives handbags for Texas-based customers after the show.

All six of the orders were small enough to be considered “personal orders” rather

than “accounts.” These orders were faxed to Grenemyer who then faxed them

to the Gerbers. The Gerbers then paid Brockman his commission directly once

the Gerbers recieved payment from the buyers.

IV

Defendants moved to dismiss for lack of personal jurisdiction, improper

venue, and insufficient service of process, or alternatively, for a change in venue.

The district court, accepting a magistrate judge’s report and recommendation,

dismissed all claims for lack of personal jurisdiction. The McFadins now appeal.

We review the district court’s dismissal for lack of personal jurisdiction de

novo. On a challenge to the court’s personam jurisdiction, a plaintiff must make

1

only a prima facie showing of the predicate facts. In turn we “must resolve all 2

undisputed facts submitted by the plaintiff, as well as all facts contested in the

affidavits, in favor of jurisdiction.”3

A federal court may exercise personal jurisdiction over a nonresident

defendant if (1) the forum state’s long-arm statute confers personal jurisdiction

over that defendant; and (2) the exercise of personal jurisdiction comports with

the Due Process Clause of the Fourteenth Amendment. As the Texas long-arm 4
No. 09-50083

 Id. at 311 n.1. 5

 Id. at 311 (citing Int’l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945)). 

6

 Luv N’ Care, 438 F.3d at 469 (citing Helicopteros Nacionales de Columbia, S.A. v. 7

Hall, 466 U.S. 408, 415 (1984)). 

 Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266 (5th Cir. 2006). 

8

 Id. at 271 (citing Nuovo Pignone, SpA v. STOREMAN ASIA M/V, 310 F.3d 374 (5th

9

Cir. 2002)).

6

statute extends as far as constitutional due process allows, we only consider the

second step of the inquiry. 

5

The relevant standard for due process is rote: “The plaintiff must show

that (1) the defendant purposefully availed himself of the benefits and

protections of the forum state by establishing ‘minimum contacts’ with the forum

state, and (2) the exercise of personal jurisdiction over that defendant does not

offend traditional notions of ‘fair play and substantial justice.’” “Where a 6

defendant ‘has continuous and systematic general business contacts’ with the

forum state, the court may exercise ‘general jurisdiction’ over any action brought

against the defendant. Where contacts are less pervasive, the court may still

exercise ‘specific’ jurisdiction ‘in a suit arising out of or related to the defendant’s

contacts with the forum.’” The McFadins claim only specific jurisdiction. 7

In this circuit, specific personal jurisdiction is a claim-specific inquiry: “A

plaintiff bringing multiple claims that arise out of different forum contacts of the

defendant must establish specific jurisdiction for each claim.” We have 8

articulated a three-step analysis for specific jurisdiction: “(1) whether the

defendant has minimum contacts with the forum state, i.e., whether it purposely

directed its activities toward the forum state or purposefully availed itself of the

privileges of conducting activities there; (2) whether the plaintiff’s cause of

action arises out of or results from the defendant’s forum-related contacts; and

(3) whether the exercise of personal jurisdiction is fair and reasonable.” 

9
No. 09-50083

 Luv N’ Care, 438 F.3d at 470 (citing World Wide Volkswagen Corp., v. Woodson, 444

10

U.S. 286, 297 (1980)).

 Electrosource, Inc., v. Horizon Battery Techs., Ltd., 176 F.3d 867, 871–72 (5th Cir. 11

1999) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985)); see also Moncrief Oil

Int’l, 481 F.3d at 312. 

 Wien Air Alaska, Inc., v. Brandt, 195 F.3d 208, 215 (5th Cir. 1999). 12

Luv N’ Care, 438 F.3d at 473. 

13

Moncrief Oil Int’l, 481 F.3d at 311; see also Burger King Corp., 471 U.S. at 478. 14

7

The “minimum contacts” inquiry is fact intensive and no one element is

decisive; rather the touchstone is whether the defendant’s conduct shows that

it “reasonably anticipates being haled into court.” The defendant “must not be 10

haled into a jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’

contacts, or of the ‘unilateral activity of another party or third person.’” 

11

In determining whether or not exercise of jurisdiction is fair and

reasonable, defendants bear the burden of proof and “it is rare to say the

assertion [of jurisdiction] is unfair after minimum contacts have been shown.”12

In this inquiry we examine five factors: “(1) the burden on the nonresident

defendant, (2) the forum state’s interests, (3) the plaintiff’s interest in securing

relief, (4) the interest of the interstate judicial system in the efficient

administration of justice, and (5) the shared interest of the several states in

furthering fundamental social policies.”13

V

The McFadins allege the court has specific jurisdiction over Grenemyer

with respect to both their contract and tort claims. We find that there is no

personal jurisdiction over Grenemyer with respect to the contract claim. It is

clearly established that “merely contracting with a resident of the forum state

does not establish minimum contacts.” Jurisdiction must not be based on the 14

fortuity of one party residing in the forum state. The McFadins rely on the fact
No. 09-50083

Freudensprung v. Offshore Technical Services, Inc., 379 F.3d 327 344 (5th Cir. 2004)

15

(“this court has repeatedly held that the combination of mailing payments to the forum state,

engaging in communications related to the execution and performance of the contract, and the

existence of a contract between the nonresident defendant and a resident of the forum are

insufficient to establish minimum contacts”).

 495 F.2d 483 (5th Cir. 1974). 

16

 681 F.2d 1003 (1982). 17

8

that the contract created a ten-year sales representation relationship between

the parties and that there were significant communications—including sales

orders and commission payments—between Grenemyer in Colorado and the

McFadins in Texas. In addition, the McFadins point to the sales by Grenemyer

to Texas residents. These contacts are insufficient.

We have held that communications relating to the performance of a

contract themselves are insufficient to establish minimum contacts. Here the 15

contract was centered around Grenemyer’s operations outside Texas. The

McFadins approached Grenemyer about establishing the representation

relationship in Colorado, Grenemyer’s sales region did not include Texas but

explicitly focused on the Rocky Mountain states, and Grenemyer never traveled

to Texas to sell the McFadins’ handbags. The entire purpose of the agreement

was to open up markets outside of Texas to Two Bar West handbags. 

The McFadins point to Product Promotions, Inc., v. Cousteau and 16

Mississippi Interstate Express v. Transpo, Inc. to support the proposition that 17

contracting with a known Texas resident is sufficient to establish jurisdiction in

Texas. However, these cases are distinguishable from the instant one. In

Product Promotions, the court rested heavily on the fact that the contract was

consummated in Texas and that Texas law would likely apply to the contract.

The defendants in Product Promotions “had reason to foresee that enforcement

and protection of its own rights under the contract might depend on the laws of
No. 09-50083

Product Promotions, 495 F.2d at 497. 18

 There is a strong argument that Colorado law would apply to this contract. In 19

determining which law to apply to multistate contracts, Texas choice of law rules look to the

factors listed in Restatement section 188 in order to determine which state “has the most

significant relationship to the transaction.” Sonat Exploration Co., v. Cudd Pressure Control,

Inc., 271 S.W.3d 228, 233 (Tex. 2008). In this particular contract, all factors—including the

place of contracting, place of negotiation, place of performance, location of the subject

matter—except the residency of the McFadins, point to Colorado as the state with the most

significant relationship. 

Transpo, 681 F.2d at 1011.

20

Id.

21

9

Texas.” Here, however, the McFadins traveled to Colorado to establish the 18

representation relationship and it appears that the contract was formed in

Colorado. Likewise, Grenemyer’s performance of the contract occurred in 19

Colorado and the Rocky Mountain region.

Transpo is likewise inapposite. The McFadins argue that Transpo stands

for the proposition that a sustained contractual relationship supports a finding

of minimal contacts. However, in Transpo, we found that the forum state was

“clearly the hub of the parties’ activities.” That case addressed the context of 20

interstate trucking, where there was no “clear local nexus with any particular

jurisdiction.” That is not the case here. Denver was the hub of activities. 21

Grenemyer represented the McFadins primarily from her showroom in Denver

and while Grenemyer did make a number of sales trips, they were to the Rocky

Mountain region and did not include trips to Texas. The little contact with

Texas came only from the fortuity of the plaintiffs’ residence there. We therefore

find that there are insufficient contacts to establish personal jurisdiction over

Grenemyer with respect to the contract claim. Finding no minimum contacts,

we need not inquire into fairness.

VI
No. 09-50083

Guidry v. United States Tobacco Co., 188 F.3d 619, 628 (5th Cir. 1999). 22

Id. (citing Calder v. Jones, 465 U.S. 783, 789-90 (1984)).

23

See Product Promotions, 495 F.2d at 492; 4A CHARLES ALAN WRIGHT, ARTHUR R. 24

MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 1069.5 (3d ed. 1998).

See Indian Harbor Ins. Co. v. Valley Forge Ins. Group, 535 F.3d 359, 364 (5th Cir.

25

2008) (stating that under Texas law to prove agency “evidence must establish that the

principle has both the right: (1) to assign the agent’s task; and (2) to control the means and

details of the process by which the agent will accomplish that task”). Grenemyer’s commission

10

Nor is there jurisdiction over the McFadins’ tort claims against

Grenemyer. “When a nonresident defendant commits a tort within the state, or

an act outside the state that causes tortious injury within the state, that tortious

conduct amounts to sufficient minimum contacts with the state by the defendant

to constitutionally permit courts within that state, including federal courts, to

exercise personal adjudicative jurisdiction over the tortfeasor.” Additionally,

22

“[e]ven an act done outside the state that has consequences or effects within the

state will suffice as a basis for jurisdiction in a suit arising from those

consequences if the effects are seriously harmful and were intended or highly

likely to follow from the nonresident defendant’s conduct.”23

The McFadins argue that Grenemyer had sufficient minimum contacts

with Texas because her sales of allegedly infringing handbags caused an injury

in Texas and there was an agency relationship between Brockman and

Grenemyer that supports jurisdiction based on the sales in Dallas. While the

actions of an agent may establish minimum contacts over a principal, we agree 24

with the district court that the relationship between Brockman and Grenemyer

will not sustain attribution to Grenemyer of his actions in Texas. Brockman and

Grenemyer apparently had a revenue sharing agreement and Grenemyer loaned

Brockman samples of the Gerbers’ goods for display in his Dallas booth. But

Grenemyer did not direct Brockman to sell bags in Texas. Such conduct is

insufficient to establish a relevant agency relationship.25
No. 09-50083

on sales by Brockman is perhaps best described as a fee for allowing Brockman access to

Grenemyer’s clients.

Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208, 212 (5th Cir. 1999) (expressing concern 26

that too broad a reading would subject a nonresident defendant “to jurisdiction in Texas for

an intentional tort simply because the plaintiff’s complaint alleged injury in Texas to Texas

residents regardless of the defendant’s contacts, and would have to appear in Texas to defend

the suit no matter how groundless or frivolous the claim may be”).

 Nor does the arrangement with Brockman change this analysis. Brockman was not 27

acting as Grenemyer’s agent.

 Revell v. Lidov, 317 F.3d 467, 472 (5th Cir. 2002). 28

See Mink v. AAAA Dev. LLC, 190 F.3d 333, 336-37 (5th Cir. 1999); see also Revell, 317

29

F.3d at 472 (highlighting the factors in Mink—identical to those at issue here—which

categorize the page as passive for jurisdiction analysis purposes).

 438 F.3d 465 (5th Cir. 2006)

30

11

The McFadins allege that Grenemyer’s sale of the Gerbers’ handbags has

caused injury in Texas and that these injurious effects should be sufficient to

establish personal jurisdiction. It is true that in Guidry, we applied the “effects

test” of Calder v. Jones to torts outside the libel context. However, the effects

doctrine is not as expansive as the McFadins argue. As we have held

“[f]oreseeable injury alone is not sufficient to confer specific jurisdiction, absent

the direction of specific acts toward the forum.” Here, the actions of selling 26

allegedly infringing handbags are not directed towards Texas in any manner.27

That Grenemyer is listed on the Gerbers’ Eternal Perspectives website is

here of no moment. We have distinguished “passive” and “active” websites in

examining a claimed showing of minimum contacts. Here the website was 28

passive, providing no means for orders, offering only Grenemyer’s contact

information. We have found similar webpages to be insufficient to meet

minimum contacts.29

The McFadins also rest heavily on our decision in Luv N’ Care, Ltd. v.

Insta-Mix, Inc. applying the Supreme Court’s “stream of commerce” doctrine 30
No. 09-50083

Id. at 470. 31

 583 F.2d 184, 189 (5th Cir. 1978). 32

12

to trademark infringement claims. We held that “[w]here a defendant knowingly

benefits from the availability of a particular state’s market for its products, it is

only fitting that the defendant be amenable to suit in that state.” And where 31

a defendant places a product into the stream of commerce with the intention

that it reach foreign markets, the defendant may reasonably be hailed into court

in those forums for claims arising out of the product. But Luv N’ Care does not

control here. There the defendant was a Colorado distributor selling products

to Wal-Mart for resale around the country, including sixty-five orders with

invoices indicating that they were to be shipped to Louisiana, the forum state.

Importantly, the court distinguished the situation in Luv N’ Care from that in

Charia v. Cigarette Racing Team, Inc., which found that “four sporadic and 32

isolated sales did not establish sufficient basis for jurisdiction.” Grenemyer

received, at most, a two-percent commission for sales by Brockman of the

Gerbers’ goods. She did not direct Brockman to go to Texas, nor did she supply

the goods that were ultimately sold. Thus her involvement in the sale of the

Gerbers’ handbags in Texas could at most be described as peripheral. Such a

tenuous economic connection to the forum is insufficient to establish minimum

contacts.

VII

The McFadins also appeal the district court’s dismissal of their tort claims

against the Gerbers for lack of personal jurisdiction. We disagree with the

district court and find that the exercise of personal jurisdiction over the Gerbers

would not offend due process.

Again we apply the three-step analysis to determine specific personal

jurisdiction: “(1) whether the defendant has minimum contacts with the forum
No. 09-50083

Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 271 (5th Cir. 2006) (citing Nuovo

33

Pignone, SpA v. STOREMAN ASIA M/V, 310 F.3d 374 (5th Cir. 2002)).

 See Luv N’ Care, 438 F.3d at 470 (discussing “stream of commerce theory” and citing 34

World Wide Volkswagen Corp., v. Woodson, 444 U.S. 286, 298 (1980)).

See Calder v. Jones, 465 U.S. 783, 789-90 (1984). 35

Guidry v. United States Tobacco Co., 188 F.3d 619, 628 (5th Cir. 1999). 36

13

state, i.e., whether it purposely directed its activities toward the forum state or

purposefully availed itself of the privileges of conducting activities there; (2)

whether the plaintiff’s cause of action arises out of or results from the

defendant’s forum-related contacts; and (3) whether the exercise of personal

jurisdiction is fair and reasonable.”33

Here, the Gerbers’, through their relationship with Brockman, sufficiently

directed the sale of their handbags to Texas such that they could reasonably

anticipate being haled into court there. The Gerbers hired Brockman to sell

their bags to prospective retailers at the Dallas Market Center. To further his

endeavors, they contributed to the costs of Brockman’s booth and the show and

agreed to pay Brockman a ten-percent commission on all sales of their bags.

Moreover, Brockman did in fact sell bags to buyers at the Dallas show (four of

whom were residents of Texas). This is not a case where the court is forced to

look to the defendants’ placement of products in the stream of commerce or the 34

effects of its actions outside the forum state within the state. Here, the 35

Gerbers purposefully directed the sale of their goods, through Brockman, in

Texas, thus allegedly committing a tort there while availing themselves of the

benefits of the Texas market. Such action is sufficient to establish minimum

contacts with Texas.36

Addressing the second step, the tort claims arise directly from sales

within Texas. The McFadins allege that the Gerbers’ handbags, sold through

Brockman in Dallas, infringe on their trademarks. 
No. 09-50083

Id.

37

14

After finding that the claim arises out of the minimum contacts with the

forum state, we ask if exercise of jurisdiction is fair and reasonable using the five

factors we have listed. Here Texas has an interest in protecting its residents’

property rights and providing a convenient forum for its residents to resolve

their disputes. The McFadins have an obvious interest in securing relief as

quickly and as efficiently for themselves as possible. In addition, it is unlikely

that efficient resolution of this case would be disserved by resolution in Texas as

opposed to Colorado. The evidence at issue is not difficult to transport and there

would be no significant burden on the court in hearing this case in Texas. As we

have stated before, “once minimum contacts are established, the interests of the

forum and the plaintiff justify even large burdens on the defendant.” The 37

generalized difficulty in traveling to Texas is here not a burden violative of due

process and we find that the court may exercises personal jurisdiction over the

Gerbers with respect to the McFadins’ tort claims.

We AFFIRM in part and REVERSE in part; the case is REMANDED to

the district court for further proceedings.