UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ JOSEPH R. TOMELLERI, Plaintiff - Appellant,

v. MEDL MOBILE, INC., Defendant - Appellee, and JASON SINISCALCHI, Defendant. No. 15-3230 (D.C. No. 2:14-CV -02113-JAR-GEB) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before TYMKOVICH , Chief Judge, BACHARACH and MORITZ , Circuit Judges.

________________ _________________ Joseph R. Tomelleri appeals the district court’s order dism issing his claims against MEDL Mobile, Inc. for lack of personal ju risdiction. We affirm.

* After examining the briefs and appellate record, th is panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### August 3, 2016 Elisabeth A. Shumaker Clerk of Court2 I. Background MEDL is a California company that deve lops software applications (“apps”) for mobile devices. With the help of Jason Siniscal chi, MEDL developed and marketed an app called FishID, which provide s detailed profiles of U.S. fish species, as well as fishing informa tion specific to each state. Tomelleri—a fish illustrator who lives in Kansas—sued MEDL and Siniscalchi in the District of Kansas for copyright infringement. Tomelleri alleged that MEDL and Siniscalchi incorporated a number of Tome lleri’s copyrighted fish illustrations in the FishID app without his permission. After giving th e parties time to conduct jurisdictional discovery, the district c ourt granted MEDL’s renewed motion to dismiss for lack of personal jurisdiction. The district court found it did not have general personal jurisdiction over MEDL becau se the company did not have an office or agent in Kansas, had never sent an ag ent to Kansas for bus iness purposes, did not advertise or have bank account s in Kansas, and conducted only a small fraction of its business in Kansas. See Trierweiler v. Croxton & Trench Holding Corp. , 90 F.3d 1523, 1533 (10th Cir. 1996) (listing factors courts have considered in evaluating general jurisdiction). The district court also concl uded it lacked specific personal jurisdiction. Applying the applicable two-part test, see Dudnikov v. Chalk & Vermilion Fine Arts, Inc. , 514 F.3d 1063, 1071 (10th Cir. 2008), the court found (1) MEDL purposefully dir ected activities at reside nts of Kansas by including Kansas-specific features in the app (namely, maps of Ka nsas lakes and rivers and3 links to Kansas fishing regul ations); but (2) Tomelleri fa iled to show his injuries arose from those activities. Fi nally, the district court deni ed the parties’ alternative request to transfer the action to th e Central District of California. II. Legal Standard Where, as here, a district court dism isses for lack of personal jurisdiction based only on the complaint and affidavits , we review its decision de novo. Shrader v. Biddinger , 633 F.3d 1235, 1239 (10th Cir. 2011). We assume all well-pled facts alleged in the complaint are true and resolve all factual disputes in the plaintiff’s favor. Id

. It is the plaintiff’s burden to es tablish personal jurisdiction. Id . At this stage, he satisfies this burden by making a prima f acie showing that juri sdiction is proper. Id

. Serving a summons establishes persona l jurisdiction over a defendant when authorized by federal statute or when the de fendant is subject to the jurisdiction of courts in the state where the district court is located. See Fed. R. Civ. P. 4(k)(1)(A), (C). Tomelleri sued MEDL under the C opyright Act, which does not provide for nationwide service of process. See 17 U.S.C. §§ 101-1332. The Kansas long-arm statute supports personal juri sdiction to the extent consti tutionally permitted, Kan. Stat. Ann. § 60-308(b), so we must dete rmine whether the exercise of personal jurisdiction comports with due process, Shrader , 633 F.3d at 1239. To exercise personal jurisdiction over a defendant, due process requires the defendant to “have ‘minimum contacts’ with the forum state, su ch that having to4 defend a lawsuit there would not ‘offend traditional notions of fair play and substantial justice.’” Dudnikov , 514 F.3d at 1070 (quoting Int’l Shoe Co. v. Washington , 326 U.S. 310, 316 (1945)). The “m inimum contacts” requirement can be met in one of two ways. First, a cour t can exercise genera l jurisdiction over an out-of-state company to hear any claim against it if the company’s “affiliations with the State are so continuous a nd systematic as to render [it] essentially at home in the forum State.” Goodyear Dunlop Tires Operations, S.A. v. Brown , 564 U.S. 915, 919 (2011) (internal quotation ma rks omitted). Second, a court can assert specific jurisdiction if the plaintif f shows (1) the out-of-state company has “purposefully directed its activities at resi dents of the forum state,” and (2) the plaintif f’s injuries arose out of the company’s forum-rela ted activities (known as the “nexus” requirement). Dudnikov , 514 F.3d at 1071 (internal quotation marks omitted). III. Analysis Tomelleri does not dispute the district court’s dete rmination that it lacked general jurisdiction, but he challenges the c ourt’s finding that he failed to establish specific jurisdiction. In particular, To melleri argues the dist rict court erred by reaching the nexus issue and concluding he fa iled to satisfy the nexus requirement. Tomelleri also claims the district court erred by denying his alternative request to transfer. We disagree. A. The district court did not er r by reaching the nexus issue. Tomelleri claims the district court s hould not have considered whether his injuries arose out of MEDL’s Kansas-relat ed activities because ME DL failed to argue5 the issue in its renewed motion to dismiss. We agree with Tomelleri that courts, as neutral arbiters, rely on the pa rties to frame the issues. Greenlaw v. United States , 554 U.S. 237, 243 (2008). But “[w]hen an issue or claim is properly before the court, the court is not limited to th e particular legal theories advanced by the parties.” Kamen v. Kemper Fin. Servs., Inc. , 500 U.S. 90, 99 (1991). Ra ther, the court “retains the independent power to identify and a pply the proper construction of governing law.” Id . This allows the court to “consider an issue ant ecedent to and ultimately dispositive of the dispute before it, even an issue the parties fail to identify and brief.” U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc. , 508 U.S. 439, 447 (1993) (internal quotation ma rks and ellipsis omitted). MEDL argued in its renewed motion to dismiss that Tomelleri failed to establish specific jurisdiction. It also cited the cont rolling legal standard, which required Tomelleri to show that (1) MEDL purposefully directed activities at Kansas residents and (2) Tomelleri’s in juries arose out of those ac tivities. MEDL focused its argument on the first requirement, but it did not concede the second (indeed, doing so would have been inconsistent with its argument that it did not di rect activities at Kansas residents to begin with). Whethe r Tomelleri satisfied the requirements of specific jurisdiction was theref ore properly before the cour t, and it was his burden to show that both requirements were satisfied, see Dudnikov , 514 F.3d at 1069. The district court did not err by hol ding Tomelleri to that burden.6 B. The district court did not err by fi nding that Tomelleri failed to show his injuries arose out of MEDL ’s Kansas-related activities. Tomelleri argues that he satisfied his bur den of showing that his injuries arose out of MEDL’s Kansas-related activities. Although we ha ve not selected a test to determine when this requireme nt is met, we have consid ered two approaches used by other courts: but-for causa tion and proximate cause. Id. at 1078. A plaintiff satisfies the but-for standard if he shows the defe ndant’s forum-related activities were an “event in the causal chain leading to the plaintiff’s injury.” Id . The proximate cause standard, “by contrast, is considerably mo re restrictive and calls for courts to examine[] whether any of the defendant’s c ontacts with the forum are relevant to the merits of the plaintiff’s claim.” Id . (internal quotation marks omitted). The district court held that Tomelleri failed unde r either standard , and we agree. Tomelleri failed to show that MEDL’s Kansas-rel ated activities—including maps of Kansas waters and li nks to Kansas fishing regula tions in the app—led to his injury. The primary injury Tomelleri identifies in his complaint is lost licensing revenue. But Tomelleri does not explain how the app’s Kansas-specific features caused him to lose revenue. He does not cl aim his illustrations were used only in conjunction with the app’s Ka nsas-specific features, whic h are separate from the app’s profiles of fish species. Nor does To melleri allege that any Kansas residents bought or used the app. In short, it appears Tomelleri would be in no different position if MEDL eliminated the app’s Kans as-specific features entirely. Because7 Tomelleri fails to sati sfy the but-for standard, he necessa rily fails the mo re restrictive proximate cause standard. C. The district court did not abuse it s discretion by denying Tomelleri’s alternative request to transfer. Finally, Tomelleri argues the district court erred by denying his alternative request to transfer the case to the Central District of California, where MEDL’s offices are located. Courts have disc retion under 28 U.S.C. § 1631 to cure jurisdictional defects by transferring a case to a district where it could have been brought. Trujillo v. Williams , 465 F.3d 1210, 1222-23 (10th Cir. 2006). We review a transfer decision for abuse of discretion. Id . at 1223. The district court denied Tomelleri’s tr ansfer request becau se it found that while the Central District of California may have personal jurisdiction over MEDL, there was no assurance it had jurisdiction over Siniscalchi, who lived in Connecticut. As the district court noted, there is “a patent impediment” to transfer when there is “no single court to which the action could be transferred with any assurance that jurisdiction would [be] proper.” Shrader , 633 F.3d at 1249. When this is true, transfer may not even be perm itted, much less required. See id . at 1249-50. Tomelleri argues the distri ct court should have reso lved this impediment by granting Siniscalchi’s then-pending motion to dismiss and transferring Tomelleri’s remaining claims against MEDL. But Tomelle ri did not ask the court to do this, and effectively prevented it from doing so by obta ining leave to respond to Siniscalchi’s motion to dismiss after the cour t ruled on MEDL’s motion.8 Because there was no assura nce the Central District of California would have personal jurisdiction over bot h defendants, the district court did not abuse its discretion by denying Tomelle ri’s transfer request. IV. Conclusion We affirm the district court’s order.

Entered for the Court
Timothy M. Tymkovich Chief Judge