MEMORANDUM OPINION AND ORDER–Page 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MIKE BIGGS, §

§

Plaintiff, §

§

vs. § CIVIL ACTION NO. 3:04-CV-1920-R

§

BASS PRO OUTDOOR WORLD, LLC, §

INCREDIBLE TECHNOLOGIES, INC., §

and PLAY MECHANIX, INC., §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

Before this Court are Incredible Technologies, Inc.’s Motion to Dismiss for Lack of Personal

Jurisdiction and Play Mechanix, Inc.’s Motion to Dismiss for Lack of Personal Jurisdiction

(collectively the “Motions to Dismiss”) (both filed March 25, 2005). For the reasons discussed

below, Defendants’ Motions to Dismiss are DENIED.

I. BACKGROUND

Plaintiff Mike Biggs (“Biggs”), a wildlife photographer who operates his business from his

home in Fort Worth, Texas, filed this copyright infringement action against Defendants Bass Pro

Outdoor World, LLC (“Bass Pro”), Incredible Technologies, Inc. (“Incredible”), and Play Mechanix,

Inc. (“Play”). Plaintiff claims the Defendants infringed upon his copyrights by copying, distributing,

and displaying certain images of deer and turkey, images which Biggs allegedly authored and

owned, for use in the video games “Big Buck Hunter,” “Big Buck Hunter: Shooter’s Challenge,”

and “Big Buck Hunter II: Sportsman’s Paradise” (collectively, the “BBH Games”). 

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION

FILED

June 27, 2005

CLERK, U.S. DISTRICT COURT

 

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1

Defendant Bass Pro does not challenge this Court’s jurisdiction.

2

All three Defendants have each filed motions to transfer venue of this case to the Northern

District of Illinois. This Court will address those three motions in a separate opinion.

MEMORANDUM OPINION AND ORDER–Page 2

Each Defendant’s connection to the BBH Games is distinct. Defendant Bass Pro is a

Missouri limited liability company registered to do business in many states, including Texas. Bass

Pro operates retail sporting good stores throughout the United States, including one in Grapevine,

TX, in which Plaintiff alleges Bass Pro operates two coin operated BBH Games displaying the

allegedly infringing images.1 Defendant Play is the software developer responsible for designing

the BBH Games’ software. Defendant Incredible is the company responsible for manufacturing,

selling, and marketing the BBH Games around the United States, including in Texas. Both Play and

Incredible are Illinois corporations and claim that this Court lacks personal jurisdiction over them.2

II. ANALYSIS

Defendants Incredible and Play each move to dismiss the claims against them pursuant to

Rule 12(b)(2) of the Federal Rules of Civil Procedure for lack of personal jurisdiction. Because this

Court finds that the Defendants are subject to this Court’s specific jurisdiction, the motions are

DENIED.

A. Rule 12(b)(2) Standard

Rule 12(b)(2) authorizes a motion to dismiss based on the defense that a court lacks

jurisdiction over the defendant. A federal court sitting in diversity may exercise personal

jurisdiction over nonresident defendants to the extent permitted by applicable state law.

Fed.R.Civ.P. 4(e)(1). The Texas long-arm statute provides for jurisdiction to the fullest extent

permitted by the U.S. Constitution. See Tex. Civ. Prac. & Rem. Code. Ann. §17.042 (West 1997);

 

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MEMORANDUM OPINION AND ORDER–Page 3

Panda Brandywine Corp. v. Potomac Electric Power Co., 253 F.3d 865, 867 (5th Cir. 2001) (citing

Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex. 1990)). Under the Due Process Clause of the

Fourteenth Amendment, jurisdiction over a nonresident defendant comports with due process if: “(1)

that defendant has 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 jurisdiction over that

defendant does not offend traditional notions of fair play and substantial justice.” Panda

Brandywine, 253 F.3d at 868 (quoting Alpine View Co. Ltd. v. Atlas Copco AB, 205 F.3d 208, 215

(5th Cir. 2000) (citations and internal quotation marks omitted)). 

Minimum contacts can be established through contacts sufficient for either specific or

general jurisdiction. Specific jurisdiction over a nonresident individual is proper when the

nonresident defendant has “purposefully directed its activities at the forum state and the litigation

results from alleged injuries that arise out of or relate to those activities.” Id. at 868 (quoting Burger

King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)(internal quotation marks omitted)). General

jurisdiction arises “when the nonresident defendant’s contacts with the forum state, although not

related to the plaintiff’s cause of action are continuous and systematic.” Id. (citing Helicopteros

Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415-16 (1984)).

This Court considers Defendants’ Motions to Dismiss without conducting an evidentiary

hearing. Thus, to survive Defendants’ Motions, Plaintiff has the burden of “produc[ing] sufficient

facts as to make out only a prima facie case supporting jurisdiction.” Id. In determining whether or

not Plaintiff has made a prima facie case, this Court “must accept as true [Plaintiff’s] uncontroverted

allegations, and resolve in its favor all conflicts between the facts contained in the parties’ affidavits

 

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Plaintiff also argues the Court has general jurisdiction over the Defendants, but the Court

need not reach this argument in reaching its decision. 

MEMORANDUM OPINION AND ORDER–Page 4

and other documentation.” Id. Although a lower standard than that needed to prevail at trial, the

Fifth Circuit noted in Panda Brandywine that the lower burden of proof:

does not automatically mean that a prima facie case for specific jurisdiction has been

presented. Establishing a prima facie case still requires the plaintiff to show the

nonresident defendant’s purposeful availment of the benefits and protections of and

minimum contacts with the forum state.

Panda Brandywine, 253 F.3d at 868 (citing Burger King, 471 U.S. at 474). Mere “conclusory

allegations” without any suggestion of supporting facts are insufficient. Id. at 869.

B. Stream of Commerce Theory of Specific Jurisdiction

Plaintiff argues that the Court has specific jurisdiction over the Defendants based on the

“stream of commerce” theory.3 Under the stream of commerce theory, a court may exercise specific

jurisdiction when the defendant’s contact with the forum arises from the sale or manufacture of a

product which has caused harm in the forum state, so long as the defendant delivered the product

into the stream of commerce expecting that it should be purchased by or used by consumers in the

forum state. See Gulf Consol. Servs., Inc. v. Corinth Pipeworks, SA, 898 F.2d 1071, 1073 (5th Cir.

1990).

Although the Fifth Circuit has been “reluctant to extend the stream-of-commerce principle

outside the context of products liability cases,” it has not foreclosed that possibility either. Nuovo

Pignone, SPA, v. Storman Asia, 310 F.3d 374 (5th Cir. 2002); Alpine View Co. Ltd. v. Atlas Copco

AB, 205 F.3d 208 (5th Cir. 2000). In Alpine View, a breach of contract and fraud action, the court

refused to apply the stream-of-commerce principle because the plaintiffs there “failed to make a

 

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To the contrary, in the present case, Plaintiff has alleged facts of specific jurisdiction. Thus,

Defendants’ argument that “the ‘stream of commerce’ theory should not be considered by this Court

as a way for the Plaintiff to show personal jurisdiciton over the Defendants”is a misapplication of

Alpine View. Reply (Tab D of Joint Motion Submission filed March 25, 2005) at 8.

5

Furthermore, the allegedly infringing recordings had been for sale in Texas. Id. 

MEMORANDUM OPINION AND ORDER–Page 5

prima facie showing that the litigation results from alleged injuries that arise out of or relate to”

defendant’s contacts with the forum. Alpine View, 205 F.3d at 217. In other words, the Alpine View

court declined to apply the stream of commerce principle in that case, not because it was not a

products liability case, but rather, because the plaintiffs alleged facts of only general jurisdiction.4

Thus, the Court is not prevented from applying the stream of commerce test in this case simply

because it is a copyright infringement action rather than one dealing with products liability.

Additionally, at least one court in this district has issued an opinion permitting the stream

of commerce theory to support a finding of specific jurisdiction in a copyright case. See Isbell v.

DM Records, Inc., 2004 U.S. Dist. LEXIS 10394, No. 3:02-cv-1408, 2004 WL 1243153 (TXND

June 4, 2004). In Isbell, Chief Judge A. Joe Fish concluded that the stream of commerce test was

met to create specific jurisdiction over DM Records, Inc. (“DM”), a nonresident defendant which

received sales income and royalties on records sold to the forum through an agreement with a third

party distributor. There, the agreement between DM and the distributor reflected DM’s expectation

of and financial interest in having its recordings distributed throughout the United States, including

in Texas. Id. at *32.5

 This Court wholly agrees with the reasoning and conclusion reached in Isbell

and finds that the stream of commerce theory may apply to establish specific jurisdiction in a

copyright case.

C. Stream of Commerce Analysis

 

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MEMORANDUM OPINION AND ORDER–Page 6

This Court finds that in this case, just as in Isbell, the Plaintiff has asserted sufficient facts

to satisfy the stream of commerce test and permit a prima facie finding of specific jurisdiction over

both Defendants Incredible and Play. This copyright infringement case regards the use and

reproduction of the allegedly infringing images used in the BBH Games. Plaintiff alleges BBH

Games placed into the stream of commerce are located in Texas, and that the reproductions and

public displays of the images both on the attraction display and on the monitor when the games are

played by a user infringe his copyrights. Accordingly, Plaintiff has demonstrated a connection

between the subject matter of this action–copyright infringement–and the presence of the BBH

Games in Texas. The remaining question, then, becomes whether Defendants Incredible and Play

delivered the allegedly infringing products into the stream of commerce with the expectation that

they would make their way into Texas.

1. Stream of Commerce Facts Related to Incredible

Incredible sells the coin operated BBH Games to distributors who in turn sell the games to

operators across the country. Dore Depo., App. 8. These operators, such as Defendant Bass Pro,

own the games which are used by customers. Incredible distributes the BBH Games nationwide.

Dore Depo., App. 13. Incredible maintains a register of operators of its BBH Games throughout the

country, including those in Texas. Dore Deposition, App. at 18. When an operator makes revenue

from someone playing an online game through one of its BBH Games, the operator is “obligated to

pay for the service that he’s utilized.” Dore Depo., App. 29-30. Thus, Incredible makes financial

profits not only from the sale of BBH Games to distributors but also from certain usage of BBH

Games owned by operators throughout the country, including those in Texas. Being in its financial

 

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It is uncontested that BBH Games, the motivator to this lawsuit, are present and operating

in Texas and that at least two are located in Bass Pro’s Grapevine store. Also, Incredible readily

acknowledges that it occasionally sends replacement parts or software to operators in Texas, has

advertised in Texas through national trade journals, has participated in promotion of online

tournaments for some of its games, and has had a sales representative in Texas. Incredible’s Motion

to Dismiss at 5.

MEMORANDUM OPINION AND ORDER–Page 7

interest, Incredible has sold BBH Games and has operators of its BBH Games throughout the

country, including Texas. Incredible expects its salespeople to sell its equipment nationwide,

including in Texas. Dore Depo., App. 36. Incredible has sold BBH Games, update software for

BBH Games, and kits to allow entities to transform other video games (such as Pacman or Mortal

Kombat) into BBH Games to entities in Texas. Dore Depo., App. 15-18; Exhibit 12–BBH Product

Sales-Texas, App. 37. Many BBH Game operators throughout Texas have registered with

Incredible. Exhibit 13–BBH Operators-Texas, App. At 38. Incredible also has a list of BBH Games

used for tournament or “on-line” play that are located in Texas whose operators chose to register

their games with Incredible. Exhibit 15–BBH Online Game-Texas, App. 47-48. According to that

list, 103 BBH Games located in Texas have registered with Incredible. 

Incredible encourages its salespersons to sell BBH Games and products in Texas, has sold

BBH Games to entities in Texas, maintains registers of BBH Games operating in Texas, and derives

revenue from BBH Games sold and operated in Texas. Clearly, Incredible has delivered the

allegedly infringing products, BBH Games, into the stream of commerce with the expectation that

the allegedly infringing products, BBH Games, would make their way into Texas.6

2. Stream of Commerce Facts Related to Play

 

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Play owns the trademark to the BBH Games’ names and contractually requires that

Incredible include Play’s logo on the finished coin operated and ready to play BBH Games. Petro

Dep, App. 93.

8

On Play’s website, www.playmechanix.com, the very front page lists links to current news

items including one with the heading “First Ever Big Buck Hunter II: Sportsman’s Paradise Online

Tournament Begins! Players to Compete Nationally for Cash Prizes.” A simple navigation through

the website allows potential players to search for locations where they can find and play BBH

Games around the country, including over 100 games in Texas. 

MEMORANDUM OPINION AND ORDER–Page 8

Play benefits financially from the development, sale, and continued use of BBH Games. The

financial benefits Play accrues from the BBH Games extends beyond the initial sale of the software

to Incredible. In addition to receiving a one time development fee from Incredible for each game,

Play also receives royalties from the license of its BBH Games trademarks to Incredible.7

 Petro

Depo., App. 74. A third type of revenue Play derives from the BBH Games is a royalty from

tournament, or “on-line,” versions of the BBH Games. Petro Depo., App. 76-77. 

In developing the software, Play’s aim was “to hit the broadest spectrum of the coin-op

market–coin-op players.” Petro Depo., App. 88. Although Play leaves it to Incredible to make the

decisions regarding where and to whom to sell the BBH Games, Play acknowledges that it is in its

best interest for Incredible to sell as many units as possible. Petro Depo., App. 100. Also, Play

designed the games so that in the beginning, the player can choose which region of the country she

wants to play in–e.g., northeast, southeast, south. Petro Depo., App. 89. Play, on its website,

advertises that its BBH Games are available for play nationwide.8

 Such advertisements encourage

players to use the BBH Games located around the country, including those in Texas. Considering

Play’s financial incentive to get as many players to play as many BBH Games as possible, wherever

they may be located, it is not surprising that Play would set up its website to promote the operators

of BBH Games involved with the online tournaments.

 

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MEMORANDUM OPINION AND ORDER–Page 9

 It is uncontested that Play designs and develops the BBH Games software and sells it to

Incredible with the intent that the BBH Games be distributed as widely as possible. This is

supported by statements on it website regarding the ability to play BBH Games across the country

as well as by the fact that Play receives royalties from all those sales and online tournament play

from BBH Games located across the country. This Court finds it to be clear that Play, in delivering

the software for the BBH Games to Incredible, delivered the allegedly infringing product into the

stream of commerce with the expectation that BBH Games would make their way into Texas.

3. The Court’s Finding of Special Jurisdiction over Incredible and Play

Taking these facts as true, this Court concludes Play and then Incredible delivered the

allegedly infringing products into the stream of commerce with the expectation that the game would

make its way into Texas. This Court further finds that Biggs has demonstrated a connection between

the subject matter of this action–copyright infringement–and the presence of BBH Games in Texas.

Finally, this Court finds that the exercise of jurisdiction over Defendants Incredible and Play does

not offend traditional notions of fair play and substantial justice. 

Accordingly the Court concludes that Biggs has made a prima facie case, under the stream

of commerce test for minimum contacts, for exercising jurisdiction over Play and Incredible.

III. CONCLUSION

 

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MEMORANDUM OPINION AND ORDER–Page 10

For the reasons discussed above, this Court finds it has personal jurisdiction over Defendants

Incredible and Play. Accordingly, Defendants’ Motions to Dismiss, are hereby DENIED. 

It is so ORDERED.

Signed: June 27, 2005.

_________________________________

JERRY BUCHMEYER

SENIOR U.S. DISTRICT JUDGE

NORTHERN DISTRICT OF TEXAS

 

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