UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ACTION TAPES, INC., a Texas

corporation d/b/a GREAT NOTIONS

a/k/a AMAZING DESIGNS,

Plaintiff,

VS.

JANET EBERT,

Defendant.

)

)

)

) CIVIL ACTION NO.

)

) 3:05-CV-1239-G

)

)

)

)

)

MEMORANDUM OPINION AND ORDER

Before the court is the motion of defendant Janet Ebert (“Ebert”) to vacate the

default judgment entered against her and to dismiss this suit, or alternatively to

transfer venue. For the reasons stated below, the motion is granted and this case is

dismissed without prejudice.

I. BACKGROUND

This case involves allegations of copyright infringement and unfair

competition. According to the complaint, the plaintiff Action Tapes, Inc. (“Action

 

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1 Action Tapes apparently discovered this infringement by finding items

Ebert placed for online auctions at www.ebay.com. Affidavit of Thomas Casbon ¶ 2,

attached to Plaintiff’s Response to Defendant’s Motion to Vacate Judgment at Tab 4. 

After initiating an investigation regarding these items, Action Tapes then utilized an

alias, bid on the items, and purchased them after winning the auction. Id. ¶¶ 1, 3.

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Tapes”) is a Texas corporation that owns U.S. copyrights to thousands of embroidery

designs. Original Complaint ¶¶ 2, 9. Ebert allegedly counterfeited and sold Action

Tapes’ designs through her online auction account with www.eBay.com and her own

interactive website, www.jansturningpoint.com.

1

 Plaintiff’s Response to Defendant’s

Motion to Vacate Judgment (“Response”) at 2. Action Tapes filed suit against Ebert

on June 17, 2005. Docket Sheet. When Ebert failed to file an answer or responsive

pleading, the clerk entered default against Ebert on September 28, 2005, and on

October 3, 2005, this court entered default judgment in accordance with FED. R. CIV.

P. 55(b). Id.

Ebert filed the instant motion on October 11, 2005, requesting that the court

vacate the October 3rd default judgment because this judgment was “based on

incomplete or incorrect facts of record.” Docket Sheet; Motion to Vacate Judgement,

and Dismiss and, Alternatively to Transfer Venue at 1 (“Plaintiff has stated that

Defendant has made no effort to defend herself in this action, when, Plaintiff’s

attorney has been communicating with Defendants [sic] attorney on a somewhat

regular basis in order to expedite the settlement of this action outside of this Court.”). 

However, the bulk of Ebert’s motion and reply is devoted to jurisdictional arguments. 

 

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See generally Defendant’s Brief in Support of Her Motion to Vacate Judgement, and

Dismiss and, Alternatively to Transfer Venue (“Brief”); Response by Defendant, Janet

Ebert, to Plaintiff, Action Tapes’ Response to Defendant’s Motion to Vacate

Judgement, Dismiss and Alternatively to Transfer Venue and Brief in Support

(“Reply”). Since “[a] less stringent examination is afforded pro se pleadings,”

McDonald v. Asvestas, No. 3:97-CV-0120-G, 1997 WL 74711 (N.D. Tex. Feb. 12,

1997) (Fish, J.) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)), the court will

construe Ebert’s motion as a motion to vacate the default judgment against her

pursuant to FED. R. CIV. P. 60(b)(4).

II. ANALYSIS

A. Vacating a Default Judgment: Legal Standard

FED. R. CIV. P. 60(b)(4) provides that “[o]n motion and upon such terms as

are just, the court may relieve a party . . . from a final judgment . . . [if] the judgment

is void . . . .” “A judgment ‘is void only if the court that rendered it lacked

jurisdiction of the subject matter, or of the parties, or if it acted in a manner

inconsistent with due process of law.’” New York Life Insurance Company v. Brown, 84

F.3d 137, 143 (5th Cir. 1996) (quoting Williams v. New Orleans Public Service, Inc.,

728 F.2d 730, 735 (5th Cir. 1984)). In fact, “[t]he principle that a party may

silently suffer a default judgment and later challenge personal jurisdiction is a

‘foundational principle of federal jurisdictional law.’” Jackson v. FIE Corporation, 302

 

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2 Ebert’s motion also includes an argument that the default judgment

should be vacated for improper venue. See Brief at 5-7 (section entitled “Under 28

U.S.C. Section 1400(a), which governs actions for copyright infringement, venue is

not proper in this district”). The court disagrees. A defendant waives a challenge

based on improper venue if she fails to appear, Rogers v. Hartford Life and Accident

Insurance Company, 167 F.3d 933, 942 (5th Cir. 1999) (“[t]he Supreme Court has

made clear that if a party defaults by failing to appear or file a timely responsive

pleading, the party waives defects in venue”), so improper venue is not sufficient to

render a default judgment void.

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F.3d 515, 522-23 (5th Cir. 2002) (quoting Harper Macleod Solicitors v. Keaty & Keaty,

260 F.3d 389, 397 & n.9 (5th Cir. 2001)). Thus, to determine whether the default

judgment against Ebert is void, the court must decide whether it can exercise personal

jurisdiction over Ebert in a manner consistent with due process.2

B. Personal Jurisdiction: Legal Standard

A federal district court may exercise personal jurisdiction over a nonresident

defendant if (1) the long-arm statute of the forum state permits the exercise of

personal jurisdiction over the defendant; and (2) the exercise of such jurisdiction by

the forum state is consistent with due process under the United States Constitution. 

Revell v. Lidov, 317 F.3d 467, 469 (5th Cir. 2002). A defendant is amenable to the

personal jurisdiction of a federal court sitting in diversity to the same extent that it

would be amenable to the jurisdiction of a state court in the same forum. Pedelahore v.

Astropark, Inc., 745 F.2d 346, 347 (5th Cir. 1984). Applying state law, this court

must first determine whether Texas, the forum state, could assert long-arm

jurisdiction. Id. Because the Texas long-arm statute confers jurisdiction to the limits

 

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of the federal constitution, Access Telecom, Inc. v. MCI Telecommunications Corporation,

197 F.3d 694, 716 (5th Cir. 1999), cert. denied, 531 U.S. 917 (2000); Hall v.

Helicopteros Nacionales de Colombia, S.A., 638 S.W.2d 870, 872 (Tex. 1982), rev’d on

other grounds, 466 U.S. 408 (1984), the court need only concern itself with the federal

due process inquiry. Latshaw v. Johnston, 167 F.3d 208, 211 (5th Cir. 1999); Wilson,

20 F.3d at 647 n.1; see also TEX. CIV. PRAC. & REM. CODE ANN. § 17.041 et seq.

(Vernon 1997) (Texas long-arm statute).

C. Due Process Requirements

Due process requires the satisfaction of two elements to exercise personal

jurisdiction over a non-resident defendant: (1) the nonresident must have some

minimum contact with the forum that results from an affirmative act on her part such

that the nonresident defendant could anticipate being haled into the courts of the

forum state; and (2) it must be fair or reasonable to require the nonresident to defend

the suit in the forum state. Burger King Corporation v. Rudzewicz, 471 U.S. 462,

474-78 (1985); Gulf Consolidated Services, Inc. v. Corinth Pipeworks, S.A., 898 F.2d

1071, 1073 (5th Cir.), cert. denied, 498 U.S. 900 (1990). The Due Process Clause

ensures that persons have a “fair warning that a particular activity may subject [them]

to the jurisdiction of a foreign sovereign.” Burger King, 471 U.S. at 472 (quoting

Shaffer v. Heitner, 433 U.S. 186, 218 (1977) (Stevens, J., concurring)).

 

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1. Minimum Contacts

To establish minimum contacts with the forum, a nonresident defendant must

do some act by which she “purposefully avails [her]self of the privilege of conducting

activities within the forum State, thus invoking the benefits and protections of its

laws.” Burger King, 471 U.S. at 474-75 (quoting Hanson v. Denckla, 357 U.S. 235,

253 (1958)). However, the unilateral activity of one asserting a relationship with the

nonresident defendant does not satisfy this requirement. Burger King, 471 U.S. at

474 (quoting Hanson, 357 U.S. at 253); Helicopteros Nacionales de Colombia, S.A. v.

Hall, 466 U.S. 408, 417 (1984) (citing Kulko v. California Superior Court, 436 U.S. 84

(1978); Hanson, 357 U.S. at 253). In determining whether the exercise of

jurisdiction is appropriate, the Supreme Court has focused less on presence in the

forum state as a means to establish jurisdiction and looked increasingly to whether a

defendant’s contacts with the forum state make it reasonable to require the defendant

to defend the particular suit in that forum. Quill Corporation v. North Dakota, 504

U.S. 298, 307 (1992).

Two types of in personam jurisdiction may be exercised over a nonresident

defendant: specific jurisdiction and general jurisdiction. Specific jurisdiction exists if

the cause of action is related to, or arises out of, the defendant’s contacts with the

forum state and those contacts meet the due process standard. J.R. Stripling v. Jordan

Production Company, LLC, 234 F.3d 863, 871 (5th Cir. 2000) (quotations and

 

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citations omitted). “When a court exercises personal jurisdiction over a defendant

based on contacts with the forum related to the particular controversy, the court is

exercising ‘specific jurisdiction.’” Holt Oil & Gas Corporation v. Harvey, 801 F.2d 773,

777 (5th Cir. 1986) (citations omitted), cert. denied, 481 U.S. 1015 (1987). General

jurisdiction, on the other hand, may be found when the nonresident’s contacts with

the forum are “continuous and systematic,” even though the claim is unrelated to

those contacts. Helicopteros Nacionales, 466 U.S. at 415-16.

Under either a specific or general jurisdiction analysis, however, “the

constitutional touchstone remains whether the defendant purposefully established

‘minimum contacts’ in the forum [s]tate.” Burger King, 471 U.S. at 474 (quoting

International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). The “purposeful

availment” requirement of the minimum contacts inquiry “ensures that a defendant

will not be haled into a jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or

‘attenuated’ contacts . . . or of the ‘unilateral activity of another party or a third

person.’” Id. at 475 (citations omitted). A plaintiff must establish a substantial

connection between the nonresident defendant and the forum state. Jones v. Petty-Ray

Geophysical, Geosource, Inc., 954 F.2d 1061, 1068 n.9 (5th Cir.), cert. denied, 506 U.S.

867 (1992); Bearry v. Beech Aircraft Corporation, 818 F.2d 370, 374 (5th Cir. 1987)

(citing Burger King, 471 U.S. at 475 n.18; McGee v. International Life Insurance

Company, 355 U.S. 220, 223 (1957)).

 

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A court must consider all factors when making the purposeful availment

inquiry -- “no single factor, particularly the number of contacts, is determinative.” 

Stuart v. Spademan, 772 F.2d 1185, 1192 (5th Cir. 1985). “[W]hether the minimum

contacts are sufficient to justify subjection of the non-resident to suit in the forum is

determined not on a mechanical and quantitative test, but rather under the particular

facts upon the quality and nature of the activity with relation to the forum state.” 

Mississippi Interstate Express, Inc. v. Transpo, Inc., 681 F.2d 1003, 1006 (5th Cir. 1982);

see also Coats v. Penrod Drilling Corporation, 5 F.3d 877, 884 (5th Cir. 1993), cert.

denied, 510 U.S. 1195 (1994).

a. Specific Jurisdiction Over Ebert

Action Tapes argues that there are two bases for asserting personal jurisdiction

over Ebert: her transactions over www.eBay.com and the activities conducted on her

personal website, www.jansturningpoint.com. Response at 10. Accordingly, the court

will look to both bases to determine if it has personal jurisdiction over Ebert in this

suit.

To exercise specific jurisdiction, the court must examine the relationship

among the defendant, the forum, and the litigation to determine whether maintaining

the suit offends traditional notions of fair play and substantial justice. See Holt Oil,

801 F.2d at 777. The Fifth Circuit has held that when a party directs purposeful,

tortious activity towards a particular forum, she should anticipate being haled into

 

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court in that forum. See D.J. Investments, 754 F.2d at 547 (defendant corporate

officer accused of fraud had sufficient contacts as he engaged in correspondence with

plaintiff’s forum, phoned plaintiff, and visited forum to negotiate); Brown v. Flowers

Industries, Inc., 688 F.2d 328, 333-34 (5th Cir. 1982) (single defamatory phone call

sufficient to create personal jurisdiction), cert. denied, 460 U.S. 1023 (1983); Union

Carbide Corporation v. UGI Corporation, 731 F.2d 1186, 1189-90 (5th Cir. 1984) (out

of state acts giving rise to tortious injury in forum state enough to warrant personal

jurisdiction).

Courts faced with the question of personal jurisdiction involving eBay

transactions have consistently held that the typical online auction process is

insufficient to confer specific jurisdiction over the defendant. See, e.g., Action Tapes v.

Weaver, No. 3:05-CV-1693-H, 2005 WL 3199706, at *3 (N.D. Tex. Nov. 23, 2005)

(Sanders, J.); United Cutlery Corporation v. NFZ, Inc., No. CCB-03-1723, 2003 WL

22851946, at *2-5 (D. Md. Dec. 1, 2003); Machulsky v. Hall, 210 F. Supp. 2d 531,

544-45 (D.N.J. 2002); Winfield Collection, Ltd. v. McCauley, 105 F. Supp. 2d 746, 749

(E.D. Mich. 2000); cf. McGuire v. Lavoie, No. 3:03-CV-0161-BH, 2003 WL

23174753, at *5 (N.D. Tex. Aug. 19, 2003) (finding personal jurisdiction because the

eBay seller ended the auction prematurely and entered into a traditional sales

relationship through a series of transactions with a known buyer). 

 

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Action Tapes v. Weaver involved a situation very similar to the case sub judice. In

neither that case nor this was it argued that the traditional eBay auction procedure

was altered or circumvented in any manner. Agreeing with the decision in Action

Tapes v. Weaver, the court concludes that Ebert’s conduct of an auction on eBay is

insufficient to confer specific jurisdiction. See Action Tapes v. Weaver, 2005 WL

3199706, at *3 (holding “that, absent other factors, an individual is not made subject

to personal jurisdiction in the Northern District of Texas for alleged copyright

infringement by virtue of an eBay auction transaction conducted with a Dallas

resident”).

Turning to the question of Ebert’s personal website, this Circuit has adopted

the approach of Zippo Manufacturing Company v. Zippo Dot Com, Inc., 952 F. Supp.

1119 (W.D. Pa. 1997), in determining whether the defendant’s operation of an

Internet website provides the requisite minimum contacts for personal jurisdiction. 

See Revell v. Lidov, 317 F.3d 467, 470 (5th Cir. 2002); Mink v. AAAA Development

LLC, 190 F.3d 333, 336 (5th Cir. 1999). The Zippo decision established a slidingscale test to evaluate the “nature and quality of commercial activity that an entity

conducts over the Internet.” Zippo, 952 F. Supp. at 1124. District courts in Texas

have employed the Zippo analysis in specific jurisdiction cases. See Mothers Against

Drunk Driving v. DAMMADD, Inc., No. 3:02-CV-1712-G, 2003 WL 292162, at *5

(N.D. Tex. Feb. 7, 2003) (Fish, Chief J.); Carrot Bunch Co., Inc. v. Computer Friends,

 

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Inc., 218 F. Supp. 2d 820, 824-26 (N.D. Tex. 2002); American Eyewear, Inc. v. Peeper’s

Sunglasses and Accessories, Inc., 106 F. Supp. 2d 895, 900 n.10 (N.D. Tex. 2000); People

Solutions, Inc. v. People Solutions, Inc., 2000 WL 1030619 at *3 (N.D. Tex. July 25,

2000).

The Zippo sliding-scale analysis categorizes Internet use into a three point

spectrum. At one end of the spectrum, a defendant “merely establishes a passive

website that does nothing more than advertise on the Internet.” Mink, 190 F.3d at

336. Personal jurisdiction based on a “passive website” is inappropriate. See Mink,

190 F.3d at 336; Carrot Bunch, 218 F. Supp. 2d at 825. At the other end of the

spectrum, “a defendant clearly does business over the Internet by entering into

contracts with residents of other states which ‘involve the knowing and repeated

transmission of computer files over the Internet. . . .’” Mink, 190 F.3d at 336

(quoting Zippo, 952 F. Supp. at 1124). In this situation, personal jurisdiction over

the nonresident defendant is proper. See Mink, 190 F.3d at 336; Carrot Bunch, 218 F.

Supp. 2d at 825. Between these two extremes are cases where a defendant’s website

allows a visitor to exchange information with a host computer. Mink, 190 F.3d at

336. “In this middle ground, ‘the exercise of jurisdiction is determined by the level of

interactivity and commercial nature of the exchange of information that occurs on the

[w]ebsite.’” Mink, 190 F.3d at 336 (quoting Zippo, 952 F. Supp. at 1124) (emphasis

added); American Eyewear, 106 F. Supp. 2d at 901. The critical inquiry, however, as

 

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3 One affidavit filed by the plaintiff in this case could be construed as

indicating that a purchase was made by a Texas resident from Ebert’s personal

website. See Affidavit of Thomas Casbon ¶ 8 (“that Defendant sold to the Plaintiff

through her interactive auction site at www.ebay.com on the internet and the

interactive store front website at www.jansturningpoint.com”). However, given that

the majority of the affidavit concerns sales taking place through eBay and that Ebert

vigorously denies making personal website sales, Reply at 16 (“no sales were

transacted thru website”), the court is unsure whether Action Tapes is alleging that it

purchased designs from Ebert’s website, or merely combining the eBay purchases with

(continued...)

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with any personal jurisdiction case, is whether the contacts suggest that the

nonresident defendant purposefully directed her activities toward the forum state or

purposefully availed herself of the privilege of conducting activities within the forum

state. See Origin Instruments Corporation v. Adaptive Computer Systems, Inc., 1999 WL

76794 at *2 (N.D. Tex. 1999); see also Hanson, 357 U.S. at 253; World-Wide

Volkswagen Corporation v. Woodson, 444 U.S. 286, 298-99 (1980).

Applying these principles, the court concludes that Ebert’s website falls within

the middle range of the Zippo spectrum. Ebert’s website clearly allows a visitor to

interact and exchange information with a host computer by selecting and ordering

embroidery designs for purchase and shipment. See Affidavit of Brent Gardner ¶ 2,

attached to Response at Tab 3. Action Tapes alleges that Ebert has sold its copyrighted

designs on this website, Response at 8, but no specific evidence has been presented

that Ebert sold these designs to Action Tapes or any other Texas resident. See

generally Response and attached exhibits at Tab 1 (recording transactions through

eBay, not Ebert’s personal website).3

 Rather than creating an alias and purchasing

 

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3

(...continued)

the fact that Ebert maintained a personal website. See also Original Complaint

(discussing sales through eBay, but neglecting to mention any purchases through or

conduct relating to Ebert’s personal website). If, in fact, such a purchase occurred, it

does not significantly alter the Zippo analysis. The court finds that, even with this

possible purchase, the attenuated contacts with Texas indicate personal jurisdiction

over Ebert is lacking.

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the designs as it did via eBay, Action Tapes has produced no evidence that it engaged

in a similar transaction with www.jansturningpoint.com. Ebert does not appear to

have any property in Texas, nor has she or any of her agents ever traveled to Texas in

order to promote her modest company. See Affidavit of Janet Ebert, filed October 11,

2005, at 1-2; Reply at 13 (“Defendant has not advertised in Texas, and does not

advertise in Texas, nor does Defendant have any agents who represent her in Texas”). 

Consequently, the totality of the contacts alleged between Ebert and Texas do not

demonstrate that Ebert has purposefully directed her activities toward Texas, that she

has purposefully availed herself of the benefits and protections of Texas law, or that

she could reasonably foresee being haled into court in Texas. See, e.g., Shamsuddin v.

Vitamin Research Products, 346 F. Supp. 2d 804, 816-17 (D. Md. 2004) (finding that

court had no personal jurisdiction over defendant that operated interactive website on

which visitors could order products online because “the paucity of sales to Maryland

residents [and] lack of advertising targeted to Maryland” indicated that defendant did

“not purposefully avail itself of the privilege of conducting activities in Maryland”). 

 

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4 The court notes that, if Action Tapes had made such an argument, the

court would find general jurisdiction lacking. See National Union Fire Insurance

Company of Pittsburgh, PA v. IF P&C Insurance, Ltd., No. 3:04-CV-2185-G, 2005 WL

1639282, at *6 (N.D. Tex. July 13, 2005) (Fish, Chief J.) (“[c]ases involving general

jurisdiction suggest that these contacts must be very substantial”).

5 Both Ebert and Action Tapes advanced an argument concerning whether

(continued...)

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Accordingly, Ebert’s website, www.jansturningpoint.com, is not sufficient to confer

personal jurisdiction.

b. General Jurisdiction Over Ebert

Because the claims against Ebert in this case relate to her contact with Texas,

and because Action Tapes has not alleged that Ebert has continuous and systematic

contacts with Texas, the court will not address the question of general jurisdiction.4

2. Fair Play and Substantial Justice

The second prong of the due process analysis limits the court’s power to

exercise personal jurisdiction over a nonresident if the exercise of jurisdiction under

the circumstances would offend “traditional notions of fair play and substantial

justice.” International Shoe, 326 U.S. at 316 (quoting Milliken v. Meyer, 311 U.S. 457,

463 (1940)). Since Ebert does not have sufficient minimum contacts such that she

can be subject to jurisdiction in this forum, the court “need not determine whether

exercise of personal jurisdiction here would comport with notions of fair play and

substantial justice.” Ham v. La Cienega Music Company, 4 F.3d 413, 416 n.15 (5th

Cir. 1993).5

 

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5

(...continued)

Ebert has shown “good cause” to vacate the default judgment entered against her. 

However, because the court is construing Ebert’s motion as a motion to vacate a void

default judgment -- and finding this motion should be granted -- the court need not

address whether the “good cause” standard was met.

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III. CONCLUSION

In deciding whether a nonresident should be required to defend herself in a

suit in Texas arising out of contacts between her and a Texas resident, “‘each case

must be decided on its own facts.’” Hydrokinetics, Inc. v. Alaska Mechanical, Inc., 700

F.2d 1026, 1028 (5th Cir. 1983) (citation omitted), cert. denied, 466 U.S. 962

(1984). In this case, the totality of the purported contacts between Ebert and Texas

do not demonstrate that Ebert purposefully availed herself of the benefits and

protections of Texas law or that she could reasonably foresee being haled into court

here. The exercise of jurisdiction over Ebert would thus be inconsistent with the

requirements of due process. It necessarily follows that the default judgment

previously entered against Ebert is void for lack of personal jurisdiction over her. 

Accordingly, Ebert’s motion to vacate that default judgment is GRANTED, the

default judgment entered against Ebert on October 3, 2005 is VACATED, and

Action Tapes’ claims against Ebert are DISMISSED without prejudice.

 

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SO ORDERED.

February 9, 2006.

 

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