IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

LIFETIME BRANDS, INC.,

Plaintiff,

v. 

QIMA LTD.,

Defendant.

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CIVIL ACTION NO. 2:23-CV-00216-JRG

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Before the Court are two motions. The first is Defendant’s Motion to Dismiss for Lack of 

Personal Jurisdiction Pursuant to FED. R. CIV. P. 12(b)(2) (the “First Motion”) filed by Defendant 

QIMA Ltd. (Dkt. No. 14.) After Defendant filed the First Motion, Plaintiff Lifetime Brands, Inc. 

(“Lifetime”) filed an amended complaint and Defendant filed another motion requesting the same 

substantive relief on the same grounds. (See Dkt. Nos. 20, 21.) A later-filed amended complaint 

moots a motion to dismiss based on that earlier complaint. See Griffin v. Am. Zurich Ins. Co., 697 

F. App’x 793, 797 (5th Cir. 2017) (“Once filed, that amended complaint rendered all earlier 

motions ... moot.”) Accordingly, the Court finds that the First Motion should be DENIED-ASMOOT.

The second is Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint for Lack of 

Personal Jurisdiction Pursuant to FED.RCIV. P. 12(b)(2) (the “Second Motion”) filed by Defendant 

QIMA Ltd. (Dkt. No. 21.) Lifetime opposes the Motion. (See Dkt. No. 23.) For the following 

reasons, the Court finds that the Second Motion should be CARRIED until limited jurisdictional 

discovery is completed.

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II. BACKGROUND 

Plaintiff Lifetime Brands is a Delaware corporation with its primary place of business in 

New York. (Dkt. No. 20 at ¶ 1.) Defendant QIMA Ltd. is a limited company organized under the 

laws of the Hong Kong Special Administrative Region with its principal place of business in Hong 

Kong, China. (Id. at ¶ 2.) QIMA Ltd. is a provider of quality assurance and supply chain solutions, 

operating in 95 countries, including in the United States, with over 40 offices and labs. (Id. at ¶ 18.) 

One such lab is in New York. (Dkt. No. 21 at 15.)

QIMA Ltd. has two relevant subsidiaries, neither of which are named in the complaint. The 

first, QIMA (US) LLC, is a New York company with its principal place of business in New York. 

(Dkt. No. 21 at 15; Dkt. No. 21-2 at 3.) The second, QIMA LLC, is also a New York company with 

its principal place of business in New York. (Dkt. No. 21 at 15; Dkt. No. 21-2 at 4.)

Lifetime alleges that QIMA Ltd. “directly participates in the stream of commerce in the 

Eastern District of Texas by providing ‘quality control along the supply chain’ ... in [] Wills Point, 

Texas.” (Dkt. No. 20 at ¶ 5 (quotations omitted).) Lifetime includes a picture of stuffed animal 

giraffes in the First Amended Complaint, seemingly to indicate that these are some of the products 

that QIMA Ltd. provides quality control for. (See id. at ¶¶ 5–6.)

Lifetime also alleges that “[u]pon information and belief, QIMA posts job listings for 

workers, such as Fruit Quality Control Inspectors, to be employed in the State of Texas (e.g., 

Garland, TX).” (Id. at ¶ 7.) Further, Lifetime alleges that “QIMA’s website ... posts jobs for its 

various subsidiaries” including subsidiaries which conduct “regular business in the State of Texas.” 

(Id. at ¶ 8.)

Next, Lifetime puts forth that QIMA Ltd., “through its subsidiaries, participates yearly in 

the BRCGS [] Connect event based in Texas.” (Id.) BRCGS, which stands for “Brand Reputation 

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Compliance Global Standard”, is a certification offered by QIMA. (Id.; Dkt. No. 23 at 11.) Lifetime 

contends that QIMA Ltd. “describes how it has been BRCGS-accredited send 2012 and kept a 5-

star rating that enabled it to win the Food Safety Americas BRCGS Certification Body of the Year 

Award in 2021.” (Dkt. No. 20 at ¶ 8.) Lifetime also alleges that QIMA Ltd. “publishes Public 

Regulatory updates that show it complies with various state laws in the states in which QIMA does 

business, including the laws of Texas (e.g., Texas bedding law requirements).” (Dkt. No. 20 at ¶ 

9.)

QIMA Ltd. owns the “QIMA” mark and maintains that it first used the mark in commerce 

in the United States as early as July 18, 2017. (Dkt. No. 23 at 3–4.) The mark is utilized by two 

apps accused of infringement and distributed by QIMA Ltd.—QIMA and QIMAone. (Id. at 8.) 

Lifetime contends that these apps are distributed in Texas and across the United States via the 

Apple App Store and the Google Play Store pursuant to agreements with Apple and Google. (Id. 

at 8–10.) 

III. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(2) requires a court to dismiss a claim if the court 

does not have personal jurisdiction over the defendant. Fed. R. Civ. P. 12(b)(2). It is the plaintiff’s 

burden to establish that personal jurisdiction exists, but the plaintiff only needs to present facts to 

make out a prima facie case supporting such jurisdiction. Alpine View Co. v. Atlas Copco AB, 

205 F.3d 208, 215 (5th Cir. 2000). “The Court may determine the jurisdictional issue by receiving 

affidavits, interrogatories, depositions, oral testimony, or any combination of the recognized 

methods of discovery.” Stuart v. Spademan, 772 F.2d 1185, 1192 (5th Cir. 1985). Additionally, 

conflicts between the facts contained in the parties’ affidavits must be resolved in favor of the 

plaintiff for the purpose of determining whether a prima facie case for personal jurisdiction has 

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been made. Bullion v. Gillespie, 895 F.2d 213, 217 (5th Cir. 1990). The rule is well-established 

that “parties who choose to litigate actively on the merits thereby surrender any jurisdictional 

objections.” PaineWebber Inc. v. Chase Manhattan Private Bank (Switzerland), 260 F.3d 453, 459 

(5th Cir. 2001) (citing General Contracting & Trading Co., LLC v. Interpole, Inc., 940 F.2d 20 (1st 

Cir. 1991)).

There are two steps to determine whether a federal court may exercise personal jurisdiction 

over a nonresident defendant: (1) the forum state’s long-arm statute must confer personal 

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

the Due Process Clause of the Fourteenth Amendment. McFadin v. Gerber, 587 F.3d 753, 759 (5th 

Cir. 2009). “As the Texas long-arm statute extends as far as constitutional due process allows,” the 

Court only needs to consider the second step of the inquiry. Id.; Moncrief Oil Int’l Inc. v. OAO 

Gazprom, 481 F.3d 309, 311 (5th Cir. 2007); see also Johnston v. Multidata Sys. Int’l Corp., 523 

F.3d 602, 609 (5th Cir. 2008) (“Because the Texas long-arm statute extends to the limits of federal 

due process, the two-step inquiry collapses into one federal due process analysis.”).

The due process analysis focuses on the number and nature of a defendant’s contacts with 

the forum to determine if the defendant has sufficient “minimum contacts” 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, 326 (1945). These contacts may give rise to specific 

or general jurisdiction. Daimler AG v. Bauman, 571 U.S. 117, 138 (2014).

General jurisdiction applies to a defendant in “instances in which the continuous corporate 

operations within a state [are] so substantial and of such a nature as to justify suit against it on 

causes of action arising from dealings entirely distinct from those activities.” Goodyear Dunlop 

Tires Operations, S.A. v. Brown, 564 U.S. 915, 917 (2011) (quoting Int’l Shoe, 326 U.S. at 318); 

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Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, n.4 (1984). Thus, general 

jurisdiction applies in “only a limited set of affiliations with a forum [that] will render a defendant 

amenable to all-purpose jurisdiction there.” Daimler, 571 U.S. at 137. The Fifth Circuit has also 

stated that it is “incredibly difficult to establish general jurisdiction in a forum other than the place 

of incorporation or principal place of business” of a defendant. Monkton Ins. Servs., Ltd. v. Ritter, 

768 F.3d 429, 432 (5th Cir. 2014).

Specific jurisdiction is a claim-specific inquiry—meaning that the factual basis for the 

plaintiff’s claim must arise out of or relate to the defendant’s substantial contacts with the forum. 

Asashi Metal Indus. Co. v. Super. Ct., 480 U.S. 102, 109 (1987); Seiferth v. Helicopteros Atuneros, 

Inc., 472 F.3d 266, 274 (5th Cir. 2006) (“Is specific personal jurisdiction a claim-specific inquiry? 

We conclude that it is. A plaintiff bringing multiple claims that arise out of different forum contacts 

of the defendant must establish specific jurisdiction for each claim.”). The Supreme Court has 

recently reiterated that: 

there must be an “affiliation between the forum and the underlying controversy, 

principally, [an] activity or an occurrence that takes place in the forum State.” When 

there is no such connection, specific jurisdiction is lacking regardless of the extent 

of a defendant’s unconnected activities in the State. . . . What is needed . . . is a 

connection between the forum and the specific claims at issue.

Bristol-Myers Squibb Co. v. Super. Ct., 137 S. Ct. 1773, 1781 (2017) (quoting Goodyear, 564 U.S. 

at 919) (internal citations in original omitted) (emphasis added); see also Walden v. Fiore, 571 

U.S. 277, 284, 290 (2014) (“For a State to exercise jurisdiction consistent with due process, the 

defendant’s suit-related conduct must create a substantial connection with the forum State. . . . The 

proper question is not where the plaintiff experienced a particular injury or effect but whether the 

defendant’s conduct connects him to the forum in a meaningful way.”) (emphasis added).

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To establish specific jurisdiction over a defendant, the plaintiff must demonstrate: 

“(1) whether the defendant . . . purposely directed its activities toward the forum state or purposely 

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.” Stroman Realty, Inc. v. Wercinski, 513 

F.3d 476, 484 (5th Cir. 2008).

“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.’” McFadin, 587 F.3d at 759 (5th Cir. 2009) (quoting Luv N’ Care, Ltd. v. Insta-Mix, 

Inc., 438 F.3d 469, 470 (5th Cir. 2006)). The plaintiff cannot supply the “only link between the 

defendant and the forum.” Carmona v. Leo Ship Mgmt., 924 F.3d 190, 194 (5th Cir. 2019) (quoting 

Walden, 571 U.S. at 285). Instead, the “defendant himself” must make deliberate contact with the 

forum. Id. (citing Walden, 571 U.S. at 284 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 

475 (1985))).

“If the plaintiff successfully satisfies the first two prongs, the burden shifts to the defendant 

to defeat jurisdiction by showing that its exercise would be unfair or unreasonable.” Seiferth, 472 

F.3d at 271 (citing Burger King, 471 U.S. at 382). To determine whether exercise of personal 

jurisdiction over the defendant would be unfair or unreasonable, the Court considers: (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. 

Burger King, 471 U.S. at 477. Once a plaintiff has established sufficient minimum contacts with 

the forum, a defendant must make a “compelling case” that exercise of jurisdiction is unfair and 

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unreasonable. Dontos v. Vendomation NZ, Ltd., 582 F. App’x 338, 343 (5th Cir. 2014) (quoting 

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

Federal Rule of Civil Procedure 4(k)(2) also permits a Court to exercise personal 

jurisdiction over a defendant; however, “the plaintiff’s claim must arise under federal law, the 

defendant must not be subject to jurisdiction in any state’s courts of general jurisdiction, and 

exercise of jurisdiction must comport with due process.” Touchcom, Inc. v. Bereskin & Parr, 574 

F.3d 1403, 1412 (Fed. Cir. 2009). Rule 4(k)(2) applies if “‘the defendant contends that he cannot 

be sued in the forum state and refuses to identify any other where suit is possible[.]’” Id. at 1415 

(citation omitted). Thus, the Court may not exercise personal jurisdiction over a defendant pursuant 

to Rule 4(k)(2) if the defendant identifies another state in which the case could have been brought. 

Merial Ltd. v. Cipla Ltd., 681 F.3d 1283, 1294 (Fed. Cir. 2012).

If there is no jurisdiction within a particular state, substantial contacts with the United 

States as a whole may satisfy Rule 4(k)(2). Fed. R. Civ. P. 4(k)(2); Synthes (U.S.A.) v. G.M. Dos 

Reis Jr. Ind. Com. de Equip. Medico, 563 F.3d 1285, 1295–96 (Fed. Cir. 2009). In the absence of 

a concession to jurisdiction in another state, the Court may use 4(k)(2) to find personal jurisdiction. 

Adams v. Unione Mediterranea Di Sicurta, 364 F.3d 646, 651 (5th Cir. 2004).

IV. ANALYSIS

A. QIMA Ltd. is Not Subject to General Jurisdiction in Texas

The parties agree that QIMA Ltd. is not subject to the general jurisdiction of the courts of 

the State of Texas. (See Dkt. No. 21 at 5–11; Dkt. No. 23.) Accordingly, the Court finds that QIMA 

Ltd. is not subject to general jurisdiction. 

B. QIMA Ltd. is Not Subject to Personal Jurisdiction Under Rule 4(k)(2)

QIMA Ltd. argues that it is “subject to the general jurisdiction of the courts of the State of 

New York” because of its regular subsidiaries in New York, QIMA (US) LLC and QIMA LLC. 

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(Dkt. No. 21 at 15.) QIMA Ltd. also notes that it has testing laboratories in New York. (Id.) In 

response, Lifetime argues that QIMA is not subject to jurisdiction in any state court of general 

jurisdiction in the United States. (Dkt. No. 23 at 13–14.) In reply, QIMA Ltd. re-urges the same 

points it made in the Second Motion. (Dkt. No. 25 at 5–6.) In sur-reply, Lifetime argues that QIMA 

has failed to demonstrate why personal jurisdiction in New York is appropriate. (Dkt. No. 27 at 4–

5.)

The Court finds that QIMA Ltd. is not subject to jurisdiction under Rule 4(k)(2). Lifetime’s 

argument that QIMA Ltd. has failed to demonstrate why it is subject to the jurisdiction of a court 

of general jurisdiction in New York is waived because it was made for the first time in sur-reply. 

Intellectual Ventures II LLC v. Sprint Spectrum, L.P., 2019 WL 2959568, at *3 (E.D. Tex. Apr. 18, 

2019) (“It is black-letter law that arguments raised for the first time in a reply brief are waived ‘as 

a matter of litigation fairness and procedure.’” (citation omitted)). QIMA Ltd. laid out 

particularized arguments in the Second Motion concerning why it was subject to the general 

jurisdiction of the Courts of the State of New York, and Lifetime did not rebut them in its response 

brief. (See Dkt. No. 21 at 15; Dkt. No. 23 at 13–14.) By making new arguments in its sur-reply, 

Lifetime has precluded a substantive response from QIMA Ltd.

Further, QIMA Ltd. has adequately shown that it would be subject to the jurisdiction of 

courts of general jurisdiction of the State of New York. QIMA Ltd. has “regular contacts with New 

York,” including with its subsidiaries located in New York, and “has testing laboratories” in New 

York. (Dkt. No. 21 at 15.) Lifetime’s only counterargument is that contact with subsidiaries is 

insufficient. (Dkt. No. 27 at 4–5 (citing MediaZam LLC v. Voices.com, Inc., No. 20-CV-1381-PP, 

2022 WL 993570, at *13 (E.D. Wis. Mar. 31, 2022) (holding that defendant’s affidavit showing a 

“wholly-owned U.S. subsidiary in the state of Delaware was insufficient to establish an “intent 

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[for the parent corporation] to service the Delaware market.”)).) However, QIMA has alleged 

contacts with New York outside of its subsidiaries. For example, contacts with its testing 

laboratories. (Dkt. No. 21 at 15.)

Since QIMA Ltd. is subject to the jurisdiction of courts of general jurisdiction of the State 

of New York, it is not subject to jurisdiction before this Court pursuant to Rule 4(k)(2).

C. It is Not Clear Whether QIMA Ltd. is Subject to Personal Jurisdiction Under 

a Stream-of-Commerce Theory

QIMA Ltd. argues that Lifetime cannot establish specific personal jurisdiction. (Dkt. No. 

21 at 12–15.) Specifically, QIMA Ltd. argues that it does not deliver any products into Texas, 

including the stuffed animal giraffes referenced in the amended complaint. (Id. at 12–14.) Further, 

QIMA Ltd. contends that even if it did make the giraffes, the giraffes are not connected to the 

allegations of infringement in this case. (Id. at 13.) Further still, QIMA Ltd. contends that even if 

it provided quality control along the supply chain as Lifetime alleges, this does not show that 

QIMA Ltd. placed these products into the stream of commerce. (Id.)

Next, QIMA Ltd. argues that any of Lifetime’s allegations concerning job postings or 

tradeshow attendance in Texas do not establish personal jurisdiction because (1) the allegations 

concern separate entities and (2) these activities are unrelated to Lifetime’s claims of infringement. 

(Dkt. No. 21 at 14.) QIMA Ltd. also urges that Lifetime’s allegations relating to QIMA’s 

compliance with Texas’ bedding law programs are not connected to Plaintiff’s claims of 

infringement. (Id. at 14–15.)

In response, Lifetime argues that QIMA Ltd. is subject to personal jurisdiction in Texas 

under a “stream-of-commerce theory,” which Lifetime maintains is an “independent basis” for 

personal jurisdiction. (Dkt. No. 23 at 7–13 (quoting Icon Health & Fitness, Inc. v. Horizon Fitness, 

Inc., No. 5:08-CV-26, 2009 WL 1025467, at *4 (E.D. Tex. Mar. 26, 2009)).) Against this backdrop 

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Lifetime proceeds to argue a number of facts that demonstrate that QIMA Ltd. has purposefully 

entered the Texas stream of commerce. (Id. at 7–13.) 

First, Lifetime notes that QIMA Ltd. admits that it uses the “QIMA” mark in the United 

States, and not its subsidiaries. (Dkt. No. 23 at 7–8, 10–11.) Next, Lifetime notes that QIMA Ltd.’s 

website confirms that it possesses “a global reach spanning 100+ countries,” including in the 

United States and Texas, and elsewhere notes that “QIMA [Ltd.] now employs more than 5,000 

employees in 60 offices and labs and operates in over 100 countries.” (Id. at 8 (citing Dkt. No. 23-

4 at 1–2).)

Lifetime then argues that the accused “QIMA / QIMAone app is available for download in 

Texas” (and anywhere in the United States). (Id. at 11.) Further, Lifetime contends that QIMA Ltd. 

uses its inspection technology in global streams of commerce, “at least one of which includes a 

high likelihood of onsite inspection to perform ‘quality control along the supply chain,’ in Willis 

Point, Texas.” (Id. (citing Dkt. No. 20 at ¶ 8).)

Next, Lifetime urges that the tradeshows in Texas are “directly related” to the BRCGS 

certification offered by QIMA Ltd. (Id.) Lifetime also contends that the “only possible intended 

audience for ‘safety standards and regulations’ relating to Texas’s Bedding Law Requirements 

would be Q[IMA Ltd.]’s customers and partners who conduct business in Texas.” (Id. at 12 (citing 

Dkt. No. 21-6 at 7).) Lifetime notes that QIMA Ltd. posts jobs in Texas and urges that exercising 

jurisdiction over QIMA Ltd. would not be unreasonable. (Id.)

In reply, QIMA Ltd. contends that the patents asserted in the amended complaint are not 

directed to any discrete product placed into a nationwide distribution network by QIMA Ltd. or 

any of its owned affiliates. (Dkt. No. 25 at 1–3.) Next, QIMA Ltd. argues that Lifetime cites no 

caselaw supporting its theory that offering apps using the “QIMA” mark in Texas bolsters specific 

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personal jurisdiction. (Id. at 3–4.) QIMA Ltd. also again argues that there is no evidence or specific 

allegation that QIMA Ltd. has introduced a product into a nationwide distribution network that 

could plausibly be alleged to infringe an asserted patent, or that any such product is available in 

Texas. (Id. at 4–5.)

In sur-reply, Lifetime argues that QIMA Ltd. is responsible for developing the accused 

QIMA app, placing it into a stream of commerce, and distributing it throughout the United States, 

including Texas. (Dkt. No. 27 at 1–3.) Thus, Lifetime argues, the QIMA app is a product and it is 

placed into the stream of commerce for distribution in Texas. (Dkt. No. 27 at 3–4.) Lifetime also 

argues that that QIMA app is likely used for quality inspections in the District. (Id. at 3.)

The Court first finds that the stream-of-commerce theory is not an independent theory of 

personal jurisdiction, as Lifetime argues. Lifetime relies on Icon Health for this proposition. (See 

Dkt. No. 23 at 6–7 (citing Icon Health, 2009 WL 1025467, at *4 (“[T]here is a third, independent 

basis for personal jurisdiction known as the stream[-]of-commerce theory.” (citation omitted))).) 

In turn, the Icon Health court relied on World-Wide Volkswagen to hold that the stream-ofcommerce theory is an independent basis for personal jurisdiction. See Icon Health, 2009 WL 

1025467, at *8. However, subsequent to Icon Health the Supreme Court clarified that the streamof-commerce theory developed through World-Wide Volkswagen and its progeny is a subset of 

specific jurisdiction. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 927 (2011)

(“The North Carolina court’s stream-of-commerce analysis elided the essential difference between 

case-specific and all-purpose (general) jurisdiction. Flow of a manufacturer’s products into the 

forum, we have explained, may bolster an affiliation germane to specific jurisdiction.”) The Court 

therefore rejects the notion that there is a third theory of personal jurisdiction apart from specific 

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jurisdiction and general jurisdiction, and considers Lifetime’s arguments under the stream-ofcommerce theory within the specific jurisdiction framework.

“Specific personal jurisdiction must be based on activities that ‘arise out of’ or ‘relate to’ 

the cause of action.” See, e.g. Silent Drive, Inc. v. Strong Industries, 326 F.3d 1194, 1200 (Fed. Cir. 

2003). The following facts are irrelevant because they have no ties to Lifetime’s claims of patent 

infringement or to the products accused of infringement: QIMA Ltd.’s participation in tradeshows, 

QIMA Ltd.’s public discussions of its compliance with the Texas Bedding Law, and QIMA Ltd.’s 

job postings in Texas. (See Dkt. No. 23 at 11–12.)

Before analyzing whether the remaining facts are relevant to a personal analysis 

jurisdiction, it is first necessary to be precise about their nature. First, Lifetime contends that 

“QIMA [Ltd.] uses its inspection technology in its global streams of commerce, at least one of 

which includes a high likelihood of onsite inspection to perform ‘quality control along the supply 

chain’” in Wills Point, Texas. (Dkt. No. 23 at 11 (citing Dkt. No. 20 at ¶¶ 5–6).) In this sentence, 

the “one of which” refers to “global streams of commerce.” Thus, Lifetime argues that one of 

QIMA Ltd.’s global streams of commerce includes a “high likelihood of onsite inspection” in Wills 

Point, Texas. The First Amended Complaint clarifies that “this quality control is performed using 

the Accused Products.” (Dkt. No. 20 at ¶ 6.) QIMA Ltd. does not rebut these points. Accordingly, 

the Court takes this as an example of one of QIMA Ltd.’s products appearing and being used in 

Texas. However, this sentence does not contain an allegation that QIMA Ltd. itself is using the 

products in Texas. In conjunction with the facts alleged in the First Amended Complaint, the 

sentence communicates two ideas: (1) that QIMA Ltd. uses its inspection technology in its global 

stream of commerce, and (2) there is a high likelihood that one of the global streams of commerce 

passes through Wills Point, Texas, where quality assurance inspections are performed using an 

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Accused Product. These two ideas are separate. Accordingly, the Court finds that Lifetime has not 

alleged that QIMA Ltd. uses its products in Texas.

Lifetime next contends that QIMA Ltd.’s decision to place the QIMA App on the app stores 

means that QIMA Ltd. has decided to broadly market the QIMA app, which in turn means that 

QIMA Ltd. has directed its products toward Texas. See In re Toyota Hybrid Brake Litig., No. 4:20-

CV-127, 2021 WL 2805455, at *11 (E.D. Tex. July 6, 2021) (“If a defendant brings its product to 

market en masse ‘in an attempt to reach as broad a market as possible’ and makes ‘no effort to 

limit the states’ in which the product will be sold, the likelihood that a court will find the defendant 

to have purposefully availed itself of the forum in question increases significantly.” (citing Vault 

Corp. v. Quaid Software Ltd., 775 F.2d 638, 640 (5th Cir. 1985)). QIMA Ltd. argues that its offering 

an app does not justify the exercise of personal jurisdiction over allegations of infringement claims 

directed to multi-component systems and methods. (Dkt. No. 25 at 1–3.) QIMA Ltd.’s argument 

misses the mark. Additional accused components do not negate the presence of an accused product 

in the forum state. However, merely placing an app on an app store (or even two app stores) is not 

evidence of a broad marketing scheme by QIMA Ltd. 

The facts before the Court are quite simple: QIMA Ltd. placed an accused app on an app 

store that is accessible in Texas, and that app is in use in Texas. Before turning to the question of 

whether QIMA Ltd. is subject to personal jurisdiction pursuant to a stream-of-commerce theory of 

specific jurisdiction, the Court must confirm that an app is appropriately treated as a product. 

In its reply brief, QIMA Ltd. relies on Technology Patents and Choice Healthcare to argue 

that an app is not appropriately treated as a physical product. (Dkt. No. 25 at 4–5 (citing Technology 

Patents, LLC v. Deutsche Telekom AG, 573 F. Supp. 2d 903, 916 (D. Md. 2008)). In Lifetime’s surCase 2:23-cv-00216-JRG Document 37 Filed 03/01/24 Page 13 of 18 PageID #: 755
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reply brief, Lifetime argues that the cases relied upon by QIMA Ltd. are inapt. (Dkt. No. 27 at 2–

3.)

Neither of these cases support QIMA Ltd.’s view. The Technology Patents court merely 

held that “it is doubtful that text messages themselves can be considered products in the stream of 

commerce.” Tech. Pats., LLC v. Deutsche Telekom AG, 573 F. Supp. 2d 903 (D. Md. 2008), aff’d 

sub nom. Tech. Pats. LLC v. T-Mobile (UK) Ltd., 700 F.3d 482 (Fed. Cir. 2012). Text messages are 

not bought and sold, apps are. The delivery of text messages is what is purchased. An app is 

acquired so that it may be used. In this way, apps are products, while text messages are not. The 

fact that some apps may sometimes be used to access other services, does not change their status 

as a product. Cellphones are purchased so that services may be accessed through them, and there 

is no serious dispute that a cellphone is a product. So too with apps. Moreover, the fact that an app 

is software does not negate the above conclusion. Software products, much like physical products, 

are acquired so that they may be used. 

It is not clear that these facts warrant exercising personal jurisdiction over QIMA Ltd. 

pursuant to a stream-of-commerce theory of specific personal jurisdiction. The Supreme Court has 

articulated two views of the stream-of-commerce theory in Asahi Metal Industry Co. v. Superior 

Court of California, Solano County, neither of which controls. 480 U.S. 102, 107 S.Ct. 1026

(1987). The Federal Circuit summarized the competing views in Celgard: 

Justice Brennan, joined by three other justices, opined that mere foreseeability that 

the defendant’s product would wind up in the forum state was sufficient to establish 

jurisdiction. To Justice Brennan, due process is satisfied when the defendant places 

a product into the stream of commerce while being “aware that the final product is 

being marketed in the forum State.” Id. at 117, 107 S.Ct. 1026 (Brennan J., 

concurring in part). Due process is satisfied because the defendant directly benefits 

from “the retail sale of the final product in the forum State” and indirectly benefits 

from the “laws that regulate and facilitate commercial activity.” Id. Justice 

O’Connor wrote separately and was joined by three justices. Justice O’Connor 

contended that something more than the foreseeability of entry of the defendant’s 

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products into the forum state was required because that low threshold does not 

guarantee that due process’ purposeful-availment requirement is met. According to 

Justice O’Connor a “substantial connection ... between the defendant and the forum 

State” must arise out of the activities of the defendant that are “purposefully 

directed toward the forum State.” Id. at 112, 107 S.Ct. 1026 (citations and quotation 

marks omitted). Merely placing “a product into the stream of commerce, without 

more, is not an act of the defendant purposefully directed toward the forum State.” 

Id. (emphasis added).” 

Celgard, LLC v. SK Innovation Co., 792 F.3d 1373, 1381 (Fed. Cir. 2015).

The facts of this case appear at this stage to split the difference of the two views. QIMA 

Ltd. undoubtedly knows that its app is available through app stores in Texas and that its product is 

in use in Texas, but there is nothing more. Accordingly, if Justice Brennan’s view controlled, 

personal jurisdiction would lie, and the opposite would be true if Justice O’Connor’s view 

controlled. However, the Federal Circuit has repeatedly refused to take a stance on which Justice’s 

view to adopt. See id. at 1382, AFTG–TG, LLC v. Nuvoton Tech. Corp., 689 F.3d 1358, 1364–65 

(Fed. Cir. 2012) (discussing cases). Accordingly, it is not clear whether QIMA Ltd. is subject to 

personal jurisdiction under a stream-of-commerce theory.

D. Jurisdictional Discovery is Warranted

The Federal Circuit has instructed in this context that it is a “cardinal rule that a court 

should not decide a legal issue when doing so is unnecessary to resolve the case at hand.” AFTGTG, 689 F.3d at 1364. Additionally, the Federal Circuit has sanctioned ordering jurisdictional 

discovery before taking a stance on the views espoused by Justices Brennan and O’Connor. Id.

(“Subsequent panels of this court have followed that [cardinal] rule, finding that the evidentiary 

record before them made the result clear, or could make the result clear after further discovery, 

without requiring the court to take a side on the Asahi divide. (emphasis supplied)).

Lifetime, in its response, makes a bare request for jurisdictional discovery in footnote 8: 

“Lifetime respectfully requests jurisdictional discovery to further elucidate the relationships 

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between Qima Ltd., Qima/WQS, Qima (US) LLC, Qima LLC, and any other Qima owned entities 

involved in the stream of commerce that lead to accused products being imported and sold in this 

District.” (Dkt. No. 23 at 12, n. 8.) Additionally, in the conclusion section of Lifetime’s response 

brief, Lifetime requests that “the Court ... grant jurisdictional discovery to further elucidate the 

relationships between Qima Ltd., Qima/WQS, Qima (US) LLC, Qima LLC, and any other Qima 

owned entities involved in the stream of commerce that lead to accused products being imported 

and sold in this District.” (Id. at 14.) In reply, QIMA Ltd. argues that Lifetime has not met its 

burden of demonstrating the necessity of the discovery. (Dkt. No. 25 at 6–7.) Lifetime argues in 

sur-reply that it has met its burden. (Dkt. No. 27 at 5–6.)

The Court finds that Lifetime has not met its burden. Lifetime’s requests in the footnote 

and conclusion section are conclusory and bare. Any additional arguments Lifetime raised about 

the necessity of the discovery in its sur-reply are waived. Intellectual Ventures II LLC v. Sprint 

Spectrum, L.P., 2019 WL 2959568, at *3 (E.D. Tex. Apr. 18, 2019) (“It is black-letter law that 

arguments raised for the first time in a reply brief are waived ‘as a matter of litigation fairness and 

procedure.’” (citation omitted)). The bare requests for discovery are not sufficient.

However, at least one other court has held that held that district courts may order 

jurisdictional discovery sua sponte in connection with a motion made under Rule 12(b)(2), and 

this Court agrees. Cano v. Assured Auto Grp., No. 3:20-CV-3501-G, 2021 WL 3036933, at *10

(N.D. Tex. July 19, 2021). Accordingly, to comply with the Federal Circuit’s instruction, the Court 

finds that limited jurisdictional discovery into the extent of QIMA Ltd.’s contacts with Texas is 

appropriate. 

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V. CONCLUSION

For the foregoing reasons, the Court finds that the First Motion (Dkt. No. 14) should be 

and hereby is DENIED-AS-MOOT.

For the foregoing reasons, the Court ORDERS the following jurisdictional discovery, 

which shall be completed within 90 days of this Order. Upon completion of jurisdictional

discovery, QIMA Ltd. is ORDERED to file a supplemental brief not to exceed ten (10) pages 

explaining how the discovery supports its Motion, and Lifetime is ORDERED to file a response 

to such supplement, not to exceed ten (10) pages, within seven (7) days of the filing of Defendants’ 

supplement, explaining how the jurisdictional discovery strengthens their opposition. The Court 

hereby CARRIES the Second Motion (Dkt. No. 21) until such discovery and supplemental 

briefing are complete.

It is further ORDERED that the above discovery will be conducted pursuant to the 

following terms: 

1. Interrogatories: Plaintiff shall be permitted to serve seven (7) interrogatories on 

Defendants relating to the topics raised in Defendant’s Motion. Service of such interrogatories 

shall occur no later than seven (7) days after entry of this Order, and written responses to the 

interrogatories are due within thirty (30) days after the interrogatories are served.

2. Requests for Production: Plaintiff shall be permitted to serve seven (7) requests for 

production on Defendant relating to the topics raised in Defendant’s Motion. Service of such 

requests shall occur no later than seven (7) days after entry of this Order, and written responses 

to the requests are due within thirty (30) days after the requests are served, with document 

production to occur within seven (7) days of written responses being served.

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3. Depositions Pursuant to 30(b)(6) and 30(b)(1): Plaintiff may take up to seven (7) hours 

of 30(b)(6) and 30(b)(1) depositions relating to the topics raised in the Motion, with one of 

Defendant’s 30(b)(1) deponents being the 30(b)(6) deponent. 

4. Miscellaneous: Any party may later move to modify these limitations for good cause. The 

scope of the depositions and discovery taken must be related to the jurisdictional questions 

raised in Defendant’s Motion. The jurisdictional discovery taken pursuant to this Order will 

not count against the limits set out in the Court’s Discovery Order governing this case. The 

parties shall cooperate in good faith to tailor discovery to be commensurate with the expedited 

nature of jurisdictional discovery. 

.

____________________________________

RODNEY GILSTRAP

UNITED STATES DISTRICT JUDGE So ORDERED and SIGNED this 1st day of March, 2024.

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