The Honorable David S. Doty, United States District Judge for 1

the District of Minnesota. 

___________

No. 95-2853

___________

Digi-Tel Holdings, Inc., *

*

Appellant, *

* Appeal from the United States

v. * District Court for the District

* of Minnesota.

Proteq Telecommunications *

(PTE), Ltd., *

*

Appellee. *

--------------------------------

Brustuen International, Inc., *

*

Intervenor. *

___________

 Submitted: March 13, 1996

 Filed: July 11, 1996

___________

Before FAGG, BRIGHT, and WOLLMAN, Circuit Judges.

___________

BRIGHT, Circuit Judge.

Digi-Tel Holdings, Inc. (Digi-Tel) appeals the order of the district

court dismissing its breach of contract and fraud claims against Proteq

1

Telecommunications (PTE), Ltd. (Proteq) for lack of personal jurisdiction.

The district court held that the exercise of personal jurisdiction over

Proteq, a Singapore company, was not consistent with due process because

Proteq did not have sufficient "minimum contacts" with the State of

Minnesota. We affirm.
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I. BACKGROUND

Proteq, a Singapore company, is a wholly-owned subsidiary of 

Proteq Technologies PTE, Ltd., a Singapore company, which in turn is a

wholly-owned subsidiary of Goldtron, Ltd., also a Singapore company. Since

its incorporation on July 16, 1992, Proteq's business has been the research

and development of telecommunication products. Proteq does not maintain

any offices, have any employees, or own any property in Minnesota. There

is no evidence that Proteq has ever solicited business or advertised in

Minnesota. Proteq is not licensed to do business in Minnesota and has no

personnel or agents authorized to accept process within Minnesota.

Major Computer Incorporated (Major), a Minnesota corporation,

enlisted the assistance of Brustuen International, Inc., a Minnesota-based

international trade consulting firm, in an effort to locate a manufacturing

source of cellular telephones. As a result of these efforts, in the summer

of 1992, Major entered into an agreement to purchase up to 240,000 cellular

phones from Proteq. There were seven face-to-face meetings between Proteq

and Major regarding developing and selling the cellular phones, all of

which took place in Singapore. On one of these occasions, Major's Vice

President obtained a sample cellular phone, and Proteq sent four additional

samples to Major in Minnesota. The parties exchanged dozens of letters and

faxes and numerous phone calls in connection with the sales agreement.

The Proteq/Major agreement provided that the agreement would be

construed and governed by Minnesota law. Under the terms of the contract,

Major would assume control of the phones while they were still in

Singapore. The sales agreement provided the price as "F.O.B. Singapore."

 Delivery of the phones was expected to begin sometime late in 1992. The

duration of the contract was the later of two years or 240,000 units. In

addition, Major had the option to renew under certain conditions. 
 Under Minnesota law, a Certificate "shall be admissible in

2

evidence as competent and sufficient proof of the registration of

such mark, in any action or judicial proceedings in any court of

[Minnesota] and shall be prima facie evidence of registrant's

ownership and exclusive right to use the mark on or in connection

with the goods or services described in the certificate." Minn.

Stat. § 333.21. 

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Proteq encouraged Major to re-sell the phones to Major's customers

before they were manufactured. Less than one month after signing its

agreement with Proteq, Major contracted to sell these same cellular phones

to Digi-Tel. 

In December of 1992, Goldtron (the parent company of Proteq) applied

to the Minnesota Secretary of State for registration of the trademark

"Goldtron." Goldtron obtained a "Certificate of Registration of Mark."2

The application extended to a range of products including cellular phones

and audio and security equipment. Proteq mailed a copy of the trademark

certificate to Major shortly after the certificate was obtained. The

sample phone which Proteq had sent to Major in July of 1992 bore the mark

"Goldtron", and Proteq admits that it considered using "Goldtron" as the

trademark on the phone. 

Proteq never delivered cellular phones to Major, and Major was unable

to fulfill its agreement with Digi-Tel. Digi-Tel filed suit against Major

for breach of the Major/Digi-Tel agreement. Major subsequently experienced

financial difficulties which resulted in Major's secured creditor

foreclosing on its assets. 

In December of 1993, an employee of Goldtron and an employee of a

Hong Kong subsidiary of Goldtron traveled to Minnesota to meet with

representatives of Digi-Tel. At the meeting they discussed the possibility

of enlisting Digi-Tel to help in obtaining FCC approval of a cellular phone

and for marketing and distributing the phone. The phone was a different

model than that envisioned under the Proteq/Major agreement. They

delivered samples of the phone to 
 Although Proteq denies that such an offer was made, for the 3

purposes of establishing a prima facie showing of jurisdiction, we

assume the existence of such an offer. 

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the Digi-Tel representatives. They also offered Digi-Tel $100,000 to

resolve Digi-Tel's claims against Proteq. Digi-Tel declined the offer. 3

Digi-Tel subsequently filed suit against Proteq for fraud and breach

of contract. Digi-Tel acquired Major's interest in the Proteq/Major

agreement from Major's secured creditor. Digi-Tel commenced the action

against Proteq as a third-party beneficiary of the Major/Proteq agreement

and as the assignee of Major's rights under that agreement. Digi-Tel

served Proteq under Minnesota long-arm statute § 303.13. Following a

hearing on June 30, 1995, at which no live testimony was presented, the

district court granted Proteq's motion to dismiss for lack of personal

jurisdiction. The district court determined that the exercise of personal

jurisdiction over Proteq would violate due process because Proteq lacked

sufficient minimum contacts with the State of Minnesota. Digi-Tel

appealed.

II. DISCUSSION

To survive a motion to dismiss for lack of personal jurisdiction, the

plaintiff need only make a prima facie showing of personal jurisdiction

over the defendant. Northrup King Co. v. Compania Productora Semillas

Algodoneras Selectas, S.A., 51 F.3d 1383, 1387 (8th Cir. 1995); Bell Paper

Box, Inc. v. U.S. Kids, Inc., 22 F.3d 816, 818 (8th Cir. 1994); Watlow

Elec. Mfg. Co. v. Patch Rubber Co., 838 F.2d 999, 1000 (8th Cir. 1988).

For the purposes of a prima facie showing, the court must view the evidence

in the light most favorable to the plaintiff and resolve all factual

conflicts in the plaintiff's favor. Dakota Indus., Inc. v. Dakota

Sportswear, Inc., 946 F.2d 1384, 1387 (8th Cir. 1991). We 
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review de novo whether the plaintiff has presented a prima facie case of

personal jurisdiction. Bell Paper Box, Inc. v. Trans Western Polymers,

Inc., 53 F.3d 920, 921 (8th Cir. 1995); Northrup King, 51 F.3d at 1387. 

In deciding whether a court has personal jurisdiction over a nonresident defendant, this court is guided by two primary rules. First, the

facts presented must satisfy the requirements of the forum state's long-arm

statute. Second, the exercise of personal jurisdiction over the defendant

must not violate due process. Northrup King, 51 F.3d at 1387. Because the

district court concluded that due process would be violated if personal

jurisdiction were conferred over Proteq, it did not reach the issue of

whether or not the requirements of the Minnesota long-arm statute were met.

Due process mandates that jurisdiction be exercised only if defendant

has sufficient "minimum contacts" with the forum state, such that summoning

the defendant to the forum state would not offend "`traditional notions of

fair play and substantial justice.'" International Shoe Co. v. Washington,

326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463

(1940)). To maintain personal jurisdiction, defendant's contacts with the

forum state must be more than "random," "fortuitous," or "attenuated."

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985). Sufficient

contacts exist when "the defendant's conduct and connection with the forum

State are such that he should reasonably anticipate being haled into court

there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).

In assessing the defendant's reasonable anticipation, there must be "`some

act by which the defendant purposefully avails itself 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 475 (quoting

Hanson v. Denckla, 357 U.S. 235, 253 (1958)). Jurisdiction is proper where

the contacts proximately result from 
 This third factor distinguishes whether the jurisdiction is

4

specific or general. Wessels, Arnold & Henderson v. National

Medical Waste, Inc., 65 F.3d 1427, 1432 n.4 (8th Cir. 1995); Bell

Paper Box, Inc. v. U.S. Kids, Inc., 22 F.3d 816, 819 (8th Cir.

1994). Specific jurisdiction refers to jurisdiction over causes of

action arising from or related to a defendant's actions within the

forum state while general jurisdiction refers to the power of a

state to adjudicate any cause of action involving a particular

defendant regardless of where the cause of action arose.

Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408,

414 nn.8 & 9 (1984). The alleged contacts in the present action

are related to the dispute that resulted in this suit, and

therefore we have an assertion of specific rather than general

jurisdiction. 

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actions by the defendant itself that create a "substantial connection" with

the forum State. Id. 

In conjunction with these basic principles of due process, this court

applies a five-factor test in analyzing the constitutional requirements

needed for personal jurisdiction: (1) the nature and quality of the

contacts with the forum state; (2) the quantity of contacts with the forum;

(3) the relation of the cause of action to these contacts ; (4) the

4

interest of the forum state in providing a forum for its residents; and (5)

the convenience of the parties. Wessels, Arnold & Henderson v. Nat'l

Medical Waste, Inc., 65 F.3d 1427, 1432 (8th Cir. 1995); Trans Western

Polymers, 53 F.3d at 922; Aaron Ferer & Sons Co. v. Diversified Metals

Corp., 564 F.2d 1211, 1215 (8th Cir. 1977). The first three factors are

of primary importance, and the last two are "secondary factors." Minnesota

Min. and Mfg. Co. v. Nippon Carbide Indus. Co., 63 F.3d 694, 697 (8th Cir.

1995), cert. denied, 116 S.Ct. 1288 (1996); Northrup King, 51 F.3d at 1388.

Because the first three factors are closely interrelated, we consider them

together. 

Digi-Tel has established the existence of certain contacts between

Proteq and the forum. First, Proteq sent numerous letters and faxes and

made several telephone calls to Minnesota in 
 Digi-Tel also argues that the agreement was "effectively

5

executed" in Minnesota. The contract provides: 

Acceptance of this Agreement shall be constituted by

receipt of this document by MAJOR, it being effectively

executed by the legal representatives of PROTEQ at the

office of Major . . . before 10:00 am, CST, the 13th

August 1992 or by receipt of this document by its

signors, it being fully executed. It shall become

effective at the time and date of acceptance.

(A-57). Digi-Tel argues that Proteq thus specifically agreed that

the contract would be deemed executed by Proteq's representatives

in Minnesota. Proteq asserts that the provision allows two

alternative modes of acceptance. Proteq argues that the second

mode of acceptance, "by receipt of this document by its signors, it

being fully executed," was the method employed in this case. We

merely observe that, "[t]he [United States Supreme] Court long ago

rejected the notion that personal jurisdiction might turn on

`mechanical' tests or on `conceptualistic . . . theories of the

place of contracting or of performance.'" Burger King, 471 U.S. at

478 (citations omitted). 

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connection with the Proteq/Major contract. Second, the contract contains

a Minnesota choice-of-law provision. Although letters and faxes may be

used to support the exercise of personal jurisdiction, they do not

themselves establish jurisdiction. Wessels, Arnold & Henderson, 65 F.3d

at 1433; Northrup King, 51 F.3d at 1388; Mountaire Feeds, Inc. v. Agro

Impex, S.A., 677 F.2d 651, 656 (8th Cir. 1982). Similarly, although a

choice-of-law provision may be considered for jurisdictional purposes as

it may "reinforc[e] (defendant's) deliberate affiliation with the forum

State and the reasonable foreseeability of possible litigation there[,]"

Burger King, 471 U.S. at 482, it is insufficient in itself to confer

jurisdiction. Id.; Wessels, Arnold & Henderson, 65 F.3d at 1434. We agree

with the district court that, in the circumstances of this case, these

contacts do not create a "substantial connection" to Minnesota sufficient

to subject Proteq to personal jurisdiction in the state. 

5

Digi-Tel cites Proteq's shipment of four sample cellular phones to

Major in Minnesota as another contact with the forum 
 Proteq asserts that Digi-Tel did not raise this attribution 6

theory in the district court and should not be allowed to present

it on appeal. Proteq asserts that Digi-Tel raised a "piercing the

corporate veil" argument in the district court and presented its

theory that contacts initiated "on behalf of" Proteq should be

attributable to it for the first time on appeal. Upon review of

the record, however, we conclude that Digi-Tel did make a general

claim that Goldtron's two contacts with Minnesota should be

attributed to Proteq. Digi-Tel has submitted no new facts on

appeal. Under these circumstances we will consider Digi-Tel's

attribution argument. See Shannon v. Ford Motor Co., 72 F.3d 678,

684 (8th Cir. 1996) (rule that appellate courts do not consider

arguments raised for first time on appeal is "`not a flat rule but

rather a matter of prudence and discretion'") (quoting Struempler

v. Bowen, 822 F.2d 40, 42 (8th Cir. 1987)); Universal Title Ins.

Co. v. United States, 942 F.2d 1311, 1314 (8th Cir. 1991) ("'We

think it would be in disharmony with one of the primary purposes of

appellate review were we to refuse to consider each nuance or shift

in approach urged by a party simply because it was not similarly

urged below.'")(quoting In re Osweiler, 346 F.2d 617, 621 (C.C.P.A.

1965)). 

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state. While this shipment of samples has relevance, its effect is

minimal. We observe that on another occasion, Major's Vice President

picked up a sample phone while in Singapore. The shipment of the samples

into the forum represents a "casual" or "fortuitous" contact rather than

a significant contact with the forum. See International Shoe, 326 U.S. at

320; Burger King, 471 U.S. at 475. 

Digi-Tel also argues that the district court erred by refusing to

impute Goldtron's contacts with Minnesota to Proteq. In determining

6

whether "minimum contacts" exist, contacts with the forum state that are

made on behalf of the defendant by others may be considered. The Supreme

Court has indicated that "when commercial activities are `carried on in

behalf of' an out-of-state party those activities may sometimes be ascribed

to the party, at least where [it] is a `primary participan[t]' in the

enterprise and has acted purposefully in directing those activities."

Burger King, 471 U.S. at 479 n.22 (citations omitted). In U.S. Kids, Inc.,

22 F.3d 816, this court considered a visit by an independent 
 Digi-Tel points to the fact that Proteq sent Major a copy of 7

the trademark application as evidence of the fact that Goldtron

obtained the trademark on behalf of Proteq. The fax accompanying

the certificate stated simply, "Attached Certificate of

Registration of Mark for `GOLDTRON' in USA for your info and file."

(A-43-44). There is no indication that the registration was

obtained for the Proteq/Major transaction or for the benefit of

Proteq. 

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businessman on behalf of the defendant to plaintiff's place of business as

a contact between defendant and the forum. The court noted that the

businessman lacked any independent relationship with the plaintiff and had

no reason to visit plaintiff's business other than as defendant's agent.

Id. at 819 n.1. 

In December of 1992, Goldtron (Proteq's parent company) applied for

a Minnesota copyright, and in December of 1993 two Goldtron representatives

visited Digi-Tel in Minnesota. Although Digi-Tel argues that these

contacts should be imputed to Proteq, it fails to produce evidence

sufficient to support the inference that Goldtron's activities were

directed by or primarily for the benefit of Proteq. First, there is

insufficient factual support in the record to create an inference that the

December 1992 Minnesota trademark application was filed at the direction

of or primarily for the benefit of Proteq. In May of 1992, "Goldtron" was

the new name of the Singapore corporation, Gold Coin Limited. Later that

year, Goldtron began a worldwide effort to register its new trademark.

Furthermore, the Minnesota trademark covered a range of products including

not only cellular phones, but also mobile fax machines, digital compact

cassette players and security equipment. 

7

In December of 1993, two representatives of Goldtron travelled to

Minneapolis, Minnesota to meet with representatives of Digi-Tel. One of

Goldtron's representatives later drafted an internal memorandum which

listed three purposes for the visit: 
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1) To hand carry our cellular phone for FCC Approval 

2) To re-establish our relationship with DIGI-TEL as a

marketing and distribution agent for the said cellular

phone 

3) To obtain information on DIGI-TEL's legal action against

Major Computers Inc. 

(A-251). Digi-Tel also claims that at the meeting, the Goldtron

representatives offered Digi-Tel $100,000 to resolve Digi-Tel's legal

claims. Digi-Tel rejected the offer. 

Digi-Tel, however, again fails to produce evidence sufficient to

support the inference that the meeting in Minnesota was not for Goldtron's

own business purposes but was directed by or primarily for the benefit of

Proteq. First, the sample phone provided to Digi-Tel at the Minnesota

meeting had a different design than the cellular phone being developed by

Proteq. The phone was developed under a joint venture between another

Goldtron subsidiary and a Taiwanese business. Furthermore, after the

meetings, Digi-Tel and Goldtron executed a document which specified,

"Goldtron, Ltd. represents and acknowledges that it is not supplying the

above described cellular telephones pursuant to its contract with Major .

. . and the contract between Major and Digi-Tel." (A-2245). 

Secondly, as to the discussion of a possible settlement, courts have

hesitated to use unsuccessful settlement discussions as "contacts" for

jurisdictional purposes. See Minnesota Min. and Mfg. Co., 63 F.3d at 698;

Conwed Corp. v. Nortene, S.A., 404 F. Supp. 497, 504-505 (D. Minn. 1975).

Giving jurisdictional significance to such activities may work against

public policy by hindering the settlement of claims. Regardless, even

including any negotiations concerning the contractual dispute between DigiTel and Major, which indirectly involved Proteq, Digi-Tel has failed to

provide evidence to support the inference that the meeting was conducted

primarily for the benefit or at the direction of Proteq. 
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The series of events culminating in this suit began with Major

seeking out a manufacturing source for cellular phones. All seven of the

face-to-face meetings regarding Proteq's sale of cellular phones to Major

took place in Singapore. No part of the contract was to be performed in

Minnesota. See Wessels, Arnold & Henderson, 65 F.3d at 1433. Proteq was

to develop and produce the phones overseas and transfer ownership to Major

in Singapore. The delivery term was "F.O.B. Singapore" which means that

the seller was obligated to deliver to Singapore and nowhere else. See,

U.S. Kids, Inc., 22 F.3d at 819. We pause to emphasize that no shipment

of actual product came into Minnesota. The only domestic element of the

agreement related to the interpretation of the contract under Minnesota

law. 

Thus the negotiations, meetings, production, and delivery were all

centered in Singapore. The contacts with Minnesota appear at best as

inconsequential rather than substantial under these circumstances. Proteq

did not create a substantial connection between itself and Minnesota, it

merely engaged in negotiations with a purchaser who happened to reside in

Minnesota. Given the nature and quality of Proteq's contacts with

Minnesota, traditional notions of fair play and substantial justice

indicate that the corporation in Singapore would not expect to litigate in

the State of Minnesota. 

Our consideration of the "secondary factors" does not change this

conclusion. First, we note that Minnesota has an obvious interest in

providing a local forum in which its residents may litigate claims against

non-residents. However, Minnesota's interest in providing its residents

with a forum cannot make up for the absence of minimum contacts. See

Falkirk Min. Co. v. Japan Steel Works, Ltd., 906 F.2d 369, 376 (8th Cir.

1990). The convenience of the parties favors neither side. Witnesses are

in both Minnesota and Singapore. Finally, as the United States Supreme

Court stated in Asahi Metal Indus. Co. v. Superior Court of 
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California, 480 U.S. 102, 115 (1987), "`Great care and reserve should be

exercised when extending our notions of personal jurisdiction into the

international field.'" (quoting United States v. First Nat'l City Bank, 379

U.S. 378, 404 (1965) (Harlan, J. dissenting)). See also Falkirk Min. Co.,

906 F.2d at 376 ("The careful inquiry we are required to make before

exercising jurisdiction over foreign defendants supports our conclusion

that no personal jurisdiction exists here, especially given the absence of

minimum contacts between appellees and the [forum]."). 

III. CONCLUSION

Accordingly, we affirm the order of the district court dismissing the

complaint for lack of personal jurisdiction. 

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.