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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

PREP SOLUTIONS LTD.,

Plaintiff,

v. 

TECHONO LTD., et al.,

Defendants.

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CIVIL ACTION NO. 2:23-CV-00211-JRG

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant Elephant Projects, Ltd’s (“Defendant”) Motion to Dismiss 

the Complaint (the “Motion”). (Dkt. No. 10.) In the Motion, Defendant requests that the Court 

dismiss Plaintiff Prep Solutions Ltd.’s (“Plaintiff’) complaint for lack of personal jurisdiction 

under Rule 12(b)(2). For the following reasons, the Court DENIES the Motion.

I. BACKGROUND

On May 10, 2023, Plaintiff filed a complaint alleging copyright infringement against 

several parties, including Defendant. (Dkt. No. 1 ¶¶ 1, 7, 23.) Specifically, Plaintiff alleges that it 

“is in the business of providing study materials to individuals preparing for certification 

examinations in the information technology (‘IT’) industry,” and Defendant is “willfully infringing 

[Plaintiff’s] copyrights by distributing [Plaintiff’s] copyrighted practice exams within this District 

and throughout the United States through their fully interactive commercial websites.” (Id. ¶ 1.)

With respect to personal jurisdiction, Plaintiff alleges the following:

This Court has personal jurisdiction over Defendants because they operate 

commercial websites accessible in this District and direct business activities toward 

consumers throughout the United States, including within the State of Texas and 

this District, through at least their fully interactive commercial websites. In doing 

so, Defendants have established minimum contacts with the State of Texas and/or 

the United States such that the exercise of jurisdiction over Defendants would not 

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offend traditional notions of fair play and substantial justice as necessary to satisfy 

constitutional requirements of due process.

(Id. ¶ 15.) Plaintiff does not allege specific acts of infringement within this judicial district or the 

State of Texas.

Defendant filed the Motion on September 6, 2023. (Dkt. No. 10.)1 In the Motion, Defendant 

argues that the Court should dismiss the Complaint for lack of personal jurisdiction under Rule 

12(b)(2). (Id. at 1.) Plaintiff filed a Response in Opposition to Defendant Elephant Projects, Ltd.’s 

Motion to Dismiss the Complaint (the “Response”) on September 26, 2023. (Dkt. No. 15.) 

Defendant did not file a reply.2

II. 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.” Cunningham v. CBC Conglomerate, LLC, 

359 F. Supp. 3d 471, 476 (E.D. Tex. 2019). “After a non-resident defendant files a motion to 

dismiss for lack of personal jurisdiction, it is the plaintiff’s burden to establish that in personam

jurisdiction exists.” Lahman v. Nationwide Provider Sols., No. 4:17-CV-00305, 2018 WL 

3035916, at *4 (E.D. Tex. June 19, 2018). “To satisfy that burden, the party seeking to invoke the 

court’s jurisdiction must ‘present sufficient facts as to make out only a prima facie case supporting 

jurisdiction,’ if a court rules on a motion without an evidentiary hearing.” Id. (quoting Alpine View 

Co. v. Atlas Copco AB, 205 F.3d 208, 215 (5th Cir. 2000)). “When considering the motion to 

dismiss, ‘[a]llegations in [a] plaintiff’s complaint are taken as true except to the extent that they 

1 This district’s Civil Local Rules require all motions to “be accompanied by a separate proposed order in searchable 

and editable PDF format for the judge’s signature.” CV-7(a). The Motion fails to include a separate proposed order. 2 Defendant filed Defendant Elephant Projects, Ltd’s Unopposed Motion for Extension of Time (Dkt. No. 16, “Motion 

for Extension of Time”) several days after its deadline to file a reply brief. See CV-7(f) (providing that a reply must 

be filed “within seven days from the date the response is served”). However, the Motion for Extension of Time failed 

to include a Certificate of Conference, as required by this district’s Local Rules. CV-7(i). This deficiency was noted 

in a docket entry that also provided Defendant with one business day to file a corrected Motion for Extension of Time

that included a Certificate of Conference. Defendant did not file a corrected Motion for Extension of Time.

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are contradicted by defendant’s affidavits.’” Id. (quoting Int’l Truck & Engine Corp. v. Quintana, 

259 F. Supp. 2d 553, 557 (N.D. Tex. 2003)). Further, “any genuine, material conflicts between the 

facts” established by the parties’ affidavits and other evidence are resolved in favor of plaintiff for 

the purposes of determining whether a prima facie case exists. Id. 

III. DISCUSSION

A. Specific Personal Jurisdiction

Personal jurisdiction exists over a defendant where “the forum state’s long-arm statute 

extends to the nonresident defendant and the exercise of jurisdiction comports with due process.” 

Carmona v. Leo Ship Mgmt., Inc., 924 F.3d 190, 193 (5th Cir. 2019). Due to Texas’s long-arm 

statute being “coextensive with the Due Process Clause of the Fourteenth Amendment, the two 

inquiries merge.” Id. Due process is satisfied when a court finds that a defendant has “minimum 

contacts” with the forum state such that exercising personal jurisdiction over the defendant would 

not offend “traditional notions of fair play and substantial justice.” See Latshaw v. Johnston, 167 

F.3d 208, 211 (5th Cir. 1999). Specific personal jurisdiction exists when “(1) the defendant 

engages in minimum contacts that are purposefully directed at the forum state, (2) there is a nexus 

between the defendant’s contacts and the plaintiff’s claims, and (3) the exercise of jurisdiction 

over the defendant is fair and reasonable.” ESPOT, Inc. v. MyVue Media, LLC, 492 F. Supp. 3d 

672, 688 (E.D. Tex. 2020) (citing ITL Int’l, Inc. v. Constenla, S.A., 669 F.3d 493, 498 (5th Cir. 

2012)) (cleaned up).

In cases involving activities on the Internet, the Fifth Circuit has adopted the framework 

set forth in Zippo Manufacturing. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997).

See Mink v. AAAA Dev. LLC, 190 F.3d 333, 336 (5th Cir. 1999). Under the Zippo framework,

websites can fall along three jurisdictionally significant points: at the low end is a 

passive website which does nothing more than advertise on the Internet and for 

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which personal jurisdiction is inappropriate; at the high end is a website that clearly 

does business over the Internet by repeatedly entering into contracts and for which 

personal jurisdiction is proper. In the middle are websites that allow a user to 

exchange information with a host computer and for which jurisdiction is determined 

by the level of interactivity and commercial nature of the exchange of information.

Websites in this middle category lend themselves to a familiar contacts-based 

analysis.

ESPOT, 492 F. Supp. 3d at 699 (cleaned up).

1. Arguments

In the Motion, Defendant argues that it lacks the necessary minimum contacts with Texas 

necessary to satisfy due process. (Dkt. No. 10 at 5–8.) Defendant argues that the facts here are 

similar to several cases3 where courts found no personal jurisdiction. (Id. at 6–8.) Specifically,

Defendant argues that it lacks the necessary minimum contacts with Texas because (1) Defendant 

exclusively operates in India; (2) Defendant has no offices, employees, or operations in Texas; (3)

Defendant’s only contact with Texas is its website which sells the allegedly infringing goods; (4) 

Defendant does not advertise into specific localities (including Texas); and (5) Plaintiff identifies 

only a single sale to support jurisdiction.

4 (Id.) Defendant also admits that it “does not collect and 

maintain address information as part of the account registration or payment process.” (Id. at 4.)

In the Response, Plaintiff argues that this Court has specific personal jurisdiction over 

Defendant.5 (Dkt. No. 15.) First, Plaintiff notes that Defendant’s website is “highly interactive”

because the website allows customers to access materials and Defendant provides customer 

support. (Id. at 8.) Plaintiff further speculates that “a substantial number of Texas residents likely 

3 Admar Int’l, Inc. v. Eastrock, L.L.C., 18 F.4th 783 (5th Cir. 2021); Brainstorm XX, LLC v. Wierman, No. 4:21-CV584-SDJ, 2022 WL 4387858 (E.D. Tex. Sep. 22, 2022); Pervasive Software Inc. v. Lexware GmbH & Co., 688 F.3d 

214 (5th Cir. 2012); The Naughtys LLC v. Does, No. 4:21-CV-492-0, 2022 WL 818993 (N.D. Tex. Mar. 3, 2022). 4 As discussed herein, Defendant repeatedly—and incorrectly—states that the Complaint alleges a single sale to 

support jurisdiction. To the contrary, the Complaint does not allege that Defendant made a specific number of 

infringing sales to Texas residents. 5 As Plaintiff correctly notes, Defendant “has not addressed the second and third factors of the specific-personal 

jurisdiction analysis and has thus waived any argument that these factors are not satisfied.” (Dkt. No. 15 at 6 n.3.)

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interacted with the website” based “on the estimated U.S. web traffic for the website and Texas’s 

ratio of the U.S. population,” resulting in “potentially . . . several thousand sales to Texas residents 

during the infringement period.” (Id.) Plaintiff notes that it “did not allege in the Complaint that 

Elephant Projects made only one sale in Texas.” (Id.; Id. at 9 (“[Plaintiff] did not allege a specific 

number of sales to Texas residents because, as [Defendant] knows, only it and its payment 

processors have information for the specific customers who have made purchases from 

[Defendant’s website].” (emphasis added)).) Rather, Plaintiff argues that personal jurisdiction is 

proper because Defendant “direct[s] business activities” towards consumers in the United States, 

Texas, and this District. (Id. (citing Dkt. No. 1 ¶ 15).) Additionally, Plaintiff argues that because 

Defendant’s website is available in English and available in Texas, Plaintiff “has a reasonable 

basis to allege that [Defendant] made many sales to Texas residents” by using broad statistics on 

United States demographics and internet usage statistics. (Id. at 9–10.) Further, Plaintiff argues 

that Defendant’s willful blindness as to sales made in Texas “is inapposite.” (Id. at 10.) Finally, 

Plaintiff argues that Defendant “could have reasonably anticipated being haled into a Texas court 

to answer for its online activities” because it targeted customers worldwide, “as evidenced by its 

English-language website, a public advertisement that it ‘specializes’ in ‘US Testprep,’ the volume 

of its U.S. web traffic . . . , and by hosting the testpreptraining.com domain in the United States.”

(Id. at 11.)

2. Analysis

As an initial matter, the Complaint does not allege that Defendant made “a single sale” to 

support personal jurisdiction. (Dkt. No. 10 at 1, 6.) Indeed, as Plaintiff (to its credit) admits, it “did 

not allege a specific number of sales to Texas residents.” (Dkt. No. 15 at 9.) Defendant—and its 

“senior manager” declarant, Ravinder Chaudhry (Dkt. No. 10-1 ¶ 10)—seems to have invented 

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this alleged sale that confusingly harms its argument. The Court is concerned about Defendant’s 

misrepresentation, and the Court advises Defendant that it may potentially be subject to sanctions 

for future misrepresentations and violations of this district’s Local Rules (see supra, n. 1–2) or this 

Court’s Standing Orders.

Turning to the substance of the Parties’ arguments, the Court finds that it does not have 

specific personal jurisdiction over Defendant. First, Plaintiff and Defendant agree that that they 

are in the “middle” of the Zippo framework. (Dkt. No. 10 at 5–6; Dkt. No. 15 at 7.) The Court 

agrees. Accordingly, the Court finds it appropriate to conduct a typical personal jurisdiction 

contacts-based analysis. Applying this analysis, the Court finds that it does not have specific 

personal jurisdiction over Defendant.

As explained above, Plaintiff admits that it cannot identify any sales Defendant made in 

Texas, let alone specific acts of copyright infringement committed by Defendant in Texas. Instead, 

Plaintiff broadly relies upon demographic information and website traffic analyses to approximate 

how many Texas residents may have purchased infringing products from Defendant. Plaintiff’s 

analysis is insufficient and far too speculative to show the minimum contacts necessary with Texas. 

Indeed, while Plaintiff’s allegations show that Defendant certainly targets and advertises to United 

States residents generally (as discussed infra, § III.b.), Plaintiff has not shown that Defendant has 

targeted and/or advertises to the residents of Texas. On this record, the Court finds that Defendant’s 

maintenance of a website merely available to Texas residents that sells allegedly infringing goods 

is insufficient to support specific personal jurisdiction.6

6 Plaintiff does not dispute that this Court does not have general personal jurisdiction. (Dkt. No. 10 at 9.)

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B. Personal Jurisdiction Under Rule 4(k)(2)

Personal jurisdiction may exist under Rule 4(k)(2) of the Federal Rules of Civil Procedure 

where “(A) the defendant is not subject to jurisdiction in any state’s courts of general jurisdiction; 

and (B) exercising jurisdiction is consistent with the United States Constitution and laws.” FED. R.

CIV. P. 4(k)(2). Personal jurisdiction may be established under Rule 4(k)(2) if the following 

conditions are satisfied: (1) plaintiff’s claims arise under federal law; (2) plaintiff serves summons 

or files a waiver of service; (3) defendant is not subject to the general jurisdiction of any other 

state; and (4) the exercise of jurisdiction is consistent with the Constitution and laws of the United 

States. DISH Network, L.L.C. v. Elahmad, No. 23-20180, 2024 WL 1008585, at *2 (5th Cir. Mar. 

8, 2024).

With respect to the fourth prong, “[i]n applying Rule 4(k)(2) the Court must determine 

whether the defendant has sufficient ties to the United States as a whole to satisfy constitutional 

due process concerns.” Adams v. Unione Mediterranea Di Sicurta, 364 F.3d 646, 651 (5th Cir. 

2004). A defendant must have “purposefully avail[ed] itself of the privilege of conducting 

activities” in the United States. Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 592 U.S. 351, 359 

(2021). The defendant’s contacts with the United States “must be [its] own choice and not random, 

isolated, or fortuitous. They must show that the defendant deliberately reached out beyond its

home—by, for example, exploi[ting] a market in the forum State or entering a contractual 

relationship centered there.” Id. (internal quotation marks and citations omitted). Importantly, 

plaintiff’s claims must “arise out of or relate to” those contacts. Id. (citation omitted). Finally, the 

plaintiff must show that “exercising our jurisdiction [would] be ‘fair and reasonable’ to the 

defendant.” Johnson v. TheHuffingtonPost.com, Inc., 21 F.4th 314, 317–18 (5th Cir. 2021) 

(citation omitted).

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1. Arguments

In the Motion, Defendant does not address personal jurisdiction under Rule 4(k)(2), nor 

does it address its contacts to the United States as a whole.

In the Response, Plaintiff states that Defendant’s “extensive contacts with the United States 

as [a] whole are more than sufficient for the Court to exercise personal jurisdiction under the 

federal long-arm statute.” (Dkt. No. 15 at 12.) Plaintiff argues that because it “pled Rule 4(k)(2)’s 

applicability” and that Defendant “has waived service and not conceded to jurisdiction in another 

state,” Defendant “is subject to personal jurisdiction under Rule 4(k)(2) if it has minimum contacts 

with the United States to satisfy due process.” (Id. at 13.) Plaintiff further argues that Defendant 

has sufficient contacts with the United States because it offers its allegedly infringing products for 

sale to United States residents. (Id. at 13-14.)

2. Analysis

The Court finds that it has jurisdiction over Defendant under Rule 4(k)(2). Plaintiff satisfies 

the first three prongs of the Rule 4(k)(2) inquiry. First, Plaintiff’s copyright infringement claims

arise under federal law. See 17 U.S.C. §§ 101 et seq. Second, Defendant waived service. (Dkt. No. 

14.) Third, Defendant has not shown—nor has it even attempted to show—that it is subject to 

another state’s jurisdiction. See Nagravision SA v. Gotech Int’l Tech. Ltd., 882 F.3d 494, 499 (5th 

Cir. 2018) (“the burden to establish that there was a state meeting the [personal jurisdiction] criteria 

necessarily must fall on the defendant”).

Plaintiff also satisfies the fourth prong because Defendant has sufficient contacts with the 

United States. The Fifth Circuit’s recent DISH Network decision is instructive. There, plaintiff 

accused defendant of copyright infringement by operating a website that provided consumers with 

free access to allegedly infringing content. 2024 WL 1008585, at *1. While defendant was not 

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located in the United States, he “allegedly promote[d] his website as providing free access to 

[infringing content] on social media sites such as Facebook, Instagram, and Pinterest.” Id. Such 

social media promotion was found to be “relevant to whether the defendant solicited business in 

the forum.” Id. at *4. Moreover, the court found it relevant that defendant contracted with a United 

States-based web server “to enhance the experience for United States users.” Id. Based on these 

allegations, the court found these contacts were sufficient to confer personal jurisdiction over 

defendant. Id.

Here, Plaintiff explains that Defendant “knowingly offers its products, including the 

infringing products, through its website directly to consumers throughout the United States without 

restriction.” (Dkt. No. 15 at 13.) According to Plaintiff, Defendant knows it is accessing “the 

United States market as evidenced by the fact that it registered and hosts its website in the U.S. 

and further evidenced by the advertisement on it[s] LinkedIn page stating that it ‘specializes’ in 

‘US Testprep.’” (Id. at 13–14 (citing Dkt. No. 15-2).) Further, “the domain for [Defendant’s 

website] is hosted in the United States, which provides better performance for U.S. internet users.”

(Id. at 14.) Finally, Plaintiff notes that Defendant publishes its website in English. (Id. at 11.) The

Court finds that these undisputed arguments are nearly identical to those the Fifth Circuit found 

persuasive in DISH Network. Accordingly, Plaintiff has made a prima facie showing that 

Defendant has sufficient contacts with the United States to establish personal jurisdiction under 

Rule 4(k)(2).

The Court also finds that it is fair and reasonable for Defendant to be subject to jurisdiction 

in the United States. As Plaintiff has met its prima facie burden, the burden shifts to Defendant to 

show that the Court’s exercise of jurisdiction would be unreasonable. However, Defendant did not 

address whether it would be fair and reasonable for it to be subject to jurisdiction in the United 

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States. Instead, the Motion only argues that it would not be fair and reasonable for it to be subject 

to jurisdiction in Texas. In view of Defendant’s failure to address this issue, and in further view of 

the United States’ interest in enforcing its copyright laws, the Court finds that it is fair and 

reasonable for Defendant to be subject to jurisdiction in the United States and this Court.

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Accordingly, the Court finds that it has jurisdiction over Defendant under Rule 4(k)(2).

IV. CONCLUSION

For the reasons stated above, the Motion (Dkt. No. 10) should be and hereby is DENIED.

7 This conclusion is further supported by Defendant’s choice to “not collect and maintain address information as part 

of the account registration or payment process” for access to its website. (Dkt. No. 10 at 4.) Defendant should not now 

benefit from its willful blindness.

.

____________________________________

RODNEY GILSTRAP

UNITED STATES DISTRICT JUDGE So ORDERED and SIGNED this 22nd day of April, 2024.

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