### The Honorable David S. Doty, United State s 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) a ppeals the order of the district court dismissing its breach of contract and fraud claims against Prote q

1 Telecommunications (PTE), Ltd. (Proteq) for lackof personal jurisdiction. The district court held that the exercise of personal jurisdiction ove r Proteq, a Singapore company, was not consistent with due process because Proteq did not have sufficient "minimum contacts" with the State o f Minnesota. We affirm.

### -2-

I. BACKGROUND
Proteq, a Singapore company, is a wholly-owned subsidiary of Prote qTechnologies PTE, Ltd., a Singapore company, which in turn is a wholly-owned subsidiary of Goldtron, Ltd., also a Singapore company. Sinc e its incorporation on July 16, 1992, Proteq's business has been the researc h 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 i n Minnesota. Proteq is not licensed to do business in Minnesota and has no personnel or agents authorized to accept process within Minnesota.
Maj or Computer Incorporated (Major), a Minnesota corporation , enlisted the assistance of Brustuen Internationa l, Inc., a Minnesota-based international trade consulting firm, in an effort to locate a manufacturin g
source of cellular telephones. As a result of these efforts, in the summe r of 1992, Major entered into an agreement to purchase up to 240,000 cellula r phones from Proteq. There were seven face-to-fa ce meetings between Proteq and Major regarding developing and selling the cellular phones, all o f which too k place in Singapore. On one of these occasions, Major's Vic e President obtained a sample cellular phone, and Proteq sent four additiona l samples to Major in Minnesota. The parties exchanged dozens of letters an d faxes and numerous phone calls in connection with the sales agreement.

The Proteq/Major agreement provided that the agreement would b e construed and governed by Minnesota law. Under the terms of the contract, Major wo uld assume control of the phones while they were still i n Singapore. The sales agreement provided the pr ice as "F.O.B. Singapore." Delivery of the phon es was expected to begin sometime late in 1992. The duration of the contr act 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 i n 2 

### evidence as competent and sufficient proof of the registration of such mar k, in any action or judicial proceedings in any court o f [Minnesota] and shall be prima facie evidence of registrant' s ownership and exclusive right to use the mark on or in connection withthe goods or services described in the certificate." Minn

. Stat. § 333.21.
-3- Proteqencouraged Major to re-sell the phones to Major's customer s before the y were manufactured. Less than one month after signing it s agreement with Proteq, Major contracted to sell these same cellular phones to Digi-Tel.

In December of 1992, Goldtron (the p arent company of Proteq) applied to the Minnesota Secretary of State for registration of the trademar k "Goldtro n." Goldtron obtained a "Certificate of Registration of Mark." 2 The application exten ded to a range of products including cellular phones and audio and security equipment. Proteq mailed a copy of the trademark certifi cate to Major shortly after the certificate was obtained. Th e sample phone which Pr oteq 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-Te l filed suit against Major for breach of the Major/Digi-Tel agreement. Major subsequently experience d financ ial difficulties which resulted in Major's secured credito r foreclosing on its assets. In Decemb er of 1993, an employee of Goldtron and an employee of a Hong Kong subsidiary of Goldtron traveled to Minnesota to meet wit h representatives of Digi-Tel. At the meeting they discussed the possibilit y of enlisting Digi-Tel to help in obtaining FCC approval of a cellular phon e and for marketing and distributing the phone. The phone was a different model than that envisioned under the Proteq/Major agreement. The y delivered samples of the phone to

### Although Proteq denies that such an offer was made, for the 3 

### purposes of establishing a pri ma facie showing of jurisdiction, we assume the existence of such an offer.
-4- the Digi-Tel representatives. They also offered Digi-Tel $100,000 t o resolve Digi-Tel's claims against Proteq. Digi-Tel declined the offer. 3
Digi-Tel subsequently filed suit aga inst Proteq for fraud and breach of con tract. Digi-Tel acquired Major's interest in the Proteq/Majo r agreem ent from Major's secured creditor. Digi-Tel commenced the actio n against Proteq as a t hird-party beneficiary of the Major/Proteq agreement and as the assignee of Major's rights under that agreement. Digi-Te l served Proteq under Minnesota long-arm statute § 303.13. Following a hearing o n June 30, 1995, at which no live testimony was presented, th e district court granted Proteq's motion to dismiss for lack of persona l jurisdiction. The district court determined tha t the exercise of personal jurisdiction over Proteq would violate due process because Proteq lacked sufficient minimum contacts with the State of Minnesota. Digi-Te l appealed.

II. DISCUSSION
To survive a motion to dismiss for lack of personal jurisdictio n, the pla intiff need only make a prima facie showing of personal jurisdictio n
over the defendant. Northrup King Co. v. Compania Productora Semilla s 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); Watlo w Elec. M fg. 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 evidenc e in t he light most favorable to the plaintiff and resolve all factua l conflict s in the plaintiff's favor. Dakota Indus., Inc. v. Dakot a Sportswear, Inc. , 946 F.2d 1384, 1387 (8th Cir. 1991). We

### -5-

reviewde novo whether the plaintiff has presented a prima facie case of per sonal 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 de ciding whether a court has personal jurisdiction over a non

resident defendant, this court is guided by two primary rules. First, the facts presented must satisfy the requirements of the forum state's long-ar m statute. Second, the exercise of personal juris diction over the defendant must not violate due process. Northrup King , 51 F.3d at 1387. Because th e dis trict court concluded that due process would be violated if persona l juris diction were conferred over Proteq, it did not reach the issue o f whether or not the requirements of the Minnesota long-arm statute were met

. Due process mandates that jurisdiction be exercised only if def endant has sufficient "minimum contacts" with the forum state, such that summonin g the defendant to the forum state would not offen d "`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, 46 3 (1940)). To maintain personal jurisdiction, def endant's contacts with the forum state must be more than "random," "fortuitous," or "attenuated. " Burger Kin g Corp. v. Rudzewicz , 471 U.S. 462, 475 (1985). Sufficien t contacts exist when "the defendant's conduct andconnection with the forum State are such that he should reasonably anticip ate being haled into court there." World-Wide Volkswagen Corp. v. Woodson , 444 U.S. 286, 297 (1980). In assessing the defendant's reasonable anticipa tion, there must be "`some act by which the defe ndant 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 (quotin g Hanson v. Denckla , 357 U.S. 235, 253 (1958)). Jurisdiction is proper wher e the contacts proximately result from

### This third factor distinguishes whether the jurisdiction i s 4 

### spe cific or general. Wessels, Arnold & Henderson v. Nationa l 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 ca uses of action arising from or relatedto a defendant's actions within the forumstate while general jurisdiction refers to the power of a state to adjudicate any cause of action involving a particula r defend ant regardless of where the cause of action arose

. Hel icopteros Nacionales de Colombia, S.A. v. Hall , 466 U.S. 408 , 414 nn .8 & 9 (1984). The alleged contacts in the present actio n are related to the dispute that resulted in this suit, an d therefore we have an assertion of specific rather than genera l jurisdiction.
-6- actions by the defendant itself that create a "substantial connection" wit h the forum State. Id

. In conjunction with these basic principles of due process, this court applies a five-factor test in analyzing the constitutional requirement s need ed for personal jurisdiction: (1) the nature and quality of th e 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) th e 4 interest of the forum state in providing a forum for its residents; and (5 ) the conven ience of the parties. Wessels, Arnold & Henderson v. Nat' l Medic al Waste, Inc. , 65 F.3d 1427, 1432 (8th Cir. 1995); Trans Wester n Polymers , 53 F.3d at 922; Aaron Ferer & Sons Co. v. Diversified Metal s Corp. , 564 F.2d 1211, 1215 (8th Cir. 1977). The first three factors are of primary importance, and the last two are "secondary factors." Minnesot a 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 inte rrelated, we consider them together.

Di gi-Tel has established the existence of certain contacts betwee n Proteqand 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 "effectivel y 5 

### executed" in Minnesota. The contract provides: Accept ance of this Agreement shall be constituted b y receipt of this document by MAJOR, it being effectively execut ed by the legal representatives of PROTEQ at th e of fice of Major . . . before 10:00 am, CST, the 13t h August 1992 or by receipt of this document by it s signor s, it being fully executed. It shall becom e 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 tw o altern ative modes of acceptance. Proteq argues that the secon d mode of acceptance, "by receipt of this document by its sign ors, it being fu lly executed," was the method employed in this case. W e merely observe that, "[t]he [United States Supreme] Court long ago reject ed the notion that personal jurisdiction might turn o n `mechanical' tests or on `conceptualistic . . . theories of th e place of contracting or of performance.'" Burger King , 471 U.S. at 478 (citations omitted).
-7- connection with the P roteq/Major contract. Second, the contract contains
a M innesota choice-of-law provision. Although letters and faxes may b e used to support the exercise of personal jurisdiction, they do no t themselves establish jurisdiction. Wessels, Arnold & Henderson , 65 F.3d at 1433; Northrup King , 51 F.3d at 1388; Mountaire Feeds, Inc. v. Agr o Impex, S.A. , 677 F.2d 651, 656 (8th Cir. 1982). Similarly, although a choice-of-lawprovision may be considered for jurisdictional purposes as it may "reinforc[e] (defendant's) deliberate affiliation with the foru m State and the reasonable foreseeability of possible litigation there[,]" Burger King , 471 U.S. at 482, it is insufficient in itself to confe r jurisdiction. Id .; Wessels, Arnold & Henderson , 65 F.3d at 1434. We agre e with the district court that, in the circumstances of this case, thes e contacts do not creat e 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 t o 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 cor porate veil" argument in the district court and presented it s theorythat contacts initiated "on behalf of" Proteq should b e attrib utable to it for the first time on appeal. Upon review o f the record, however, we conclude that Digi-Tel did make a general clai mthat Goldtron's two contacts with Minnesota should b e attributed to Proteq. Digi-Tel has submitted no new facts o n ap peal. Under these circumstances we will consider Digi-Tel' s attribution argument. See Sha nnon v. Ford Motor Co. , 72 F.3d 678, 684 (8th Cir. 1996) (rule that appellate courts do not conside r arguments raised for first tim e 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) ("'W e think it would be in disharmony with one of the primary purp oses of appellate review were we to refuse to consider each nuance o r shift in appro ach urged by a party simply because it was not similarl y urged below.'")(quoting In re Osweiler , 346 F.2d 617, 621 (C .C.P.A. 1965)).
-8- state. While this shipment of samples has relevance, its effect i s minimal

. We observe that on another occasion, Major's Vice Presiden t picked up a sample phone while in Singapore. T he shipment of the samples into the forum represents a "casual" or "fortuitous" contact rather than a significant contact with the forum. See Inter national Shoe , 326 U.S. at 320; Burger King , 471 U.S. at 475.
Digi- Tel also argues that the district court erred by refusing t o impute G oldtron's contacts with Minnesota to Proteq. In determinin g 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 Cou rt has indicated that "when commercial activities are `carried on i n behalf of' an out-of-state party those activities may sometimes be ascribe d to the party, at least where [it] is a `primary participan[t]' in th e enterpr ise 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 po ints to the fact that Proteq sent Major a copy of 7 

### the tr ademark application as evidence of the fact that Goldtro n obtained the trademark on behalf of Proteq. The fax accompanying the certificate stated simply, "Attached Certificate o f Registration of Mark for `GOLDTRON' in USA for your info andfile." (A-43- 44). There is no indication that the registration wa s obtain ed for the Proteq/Major transaction or for the benefit o f Proteq. -9- businessman on behalf of the defendant to plaint iff's place of business as
a cont act between defendant and the forum. The court noted that th e 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 Decemb er of 1992, Goldtron (Proteq's parent company) applied for
a Minnesota copyright, and in December of 1993 two Goldtron representative s visite d Digi-Tel in Minnesota. Although Digi-Tel argues that thes e contacts should be imputed to Proteq, it fails to produce evidenc e suffi cient to support the inference that Goldtron's activities wer e directed by or primarily for the benefit of Proteq. First, there i s insufficient factual support in the record to cr eate an inference that the December 1992 Minnesota trademark application was filed at the direction of or primarily for the benefit of Proteq. In M ay of 1992, "Goldtron" was the new name of the S ingapore corporation, Gold Coin Limited. Later that year, Goldtron began a worldwide effort to register its new trademark

. Furthermore, the Minnesota trademark covered a r ange of products including not only cellular phones, but also mobile fax machines, digital compac t cassette players and security equipment. 7

In December of 1993, two representatives of Goldtron travelled t o Minneapolis, Minnesota to meet with representatives of Digi-Tel. One of Gol dtron's representatives later drafted an internal memorandum whic h listed three purposes for the visit:

### -10- 1) To hand carry our cellular phone for FCC Approval 2) To r e-establish our relationship with DIGI-TEL as a marketing and distribution agent for the said cellula r phone 3) To obtain in formation on DIGI-TEL's legal action against Major Computers Inc.

(A -251). Digi-Tel also claims that at the meeting, the Goldtro n rep resentatives offered Digi-Tel $100,000 to resolve Digi-Tel's lega l claims. Digi-Tel rejected the offer.
Digi-Tel, however, again fails to produce evidence sufficient t o support the inference that the meeting in Minnes ota was not for Goldtron's own business purposes but was directed by or primarily for the benefit of Prote q. First, the sample phone provided to Digi-Tel at the Minnesot a meeting had a differe nt design than the cellular phone being developed by Prote q. The phone was developed under a joint venture between anothe r Goldtr on subsidiary and a Taiwanese business. Furthermore, after th e
me etings, Digi-Tel and Goldtron executed a document which specified , "Goldtron, Ltd. represents and acknowledges that it is not supplying the above described cellu lar 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 hesi tated to use unsuccessful settlement discussions as "contacts" fo r jurisdictional purposes. See Minnesota Min. andMfg. Co. , 63 F.3d at 698; Conwed Corp. v. Norte ne, S.A. , 404 F. Supp. 497, 504-505 (D. Minn. 1975). Givi ng jurisdictional significance to such activities may work agains t public policy by hindering the settlement of claims. Regardless, eve n including any negotiations concerning the contractual dispute between Digi

Tel and Major, which indirectly involved Proteq, Digi-Tel has failed t o provide evidence to support the inference that the meeting was conducted primarily for the benefit or at the direction of Proteq.

### -11- The se ries of events culminating in this suit began with Majo r seeking out a manufac turing 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 Wesse ls, Arnold & Henderson , 65 F.3d at 1433. Proteq was to develop and produce the phones overseas and t ransfer 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 agreem ent related to the interpretation of the contract under Minnesot a law.

Th us the negotiations, meetings, production, and delivery were al l centered i n Singapore. The contacts with Minnesota appear at best a s inconsequential rather than substantial under th ese circumstances. Proteq did not create a substantial connection between itself and Minnesota, it merely engaged in neg otiations with a purchaser who happened to reside in Minnesot a. Given the nature and quality of Proteq's contacts wit h Minne sota, traditional notions of fair play and substantial justic e indicate that the corporation in Singapore wouldnot expect to litigate in the State of Minnesota.

Our consideration of the "secondary factors" does not change thi s conclusion

. First, we note that Minnesota has an obvious interest i n providing a local forum in which its residents m ay litigate claims against non-residents. Howe ver, Minnesota's interest in providing its residents with a fo rum cannot make up for the absence of minimum contacts. Se e Falkirk Min. Co. v. Japan Steel Works, Ltd. , 906 F.2d 369, 376 (8th Cir. 1990). The convenience of the parties favors ne ither side. Witnesses are in both Minnesota and Singapore. Finally, as the United States Suprem e Court stated in Asahi Metal Indus. Co. v. Superior Court of

### -12-

California , 480 U.S. 102, 115 (1987), "`Great care and reserve should be exerci sed when extending our notions of personal jurisdiction into th e international field.'" (quoting United States v. First Nat'l City Bank , 37 9 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 befor e
exerc ising jurisdiction over foreign defendants supports our conclusio n that no personal jurisdiction exists here, espec ially given the absence of minimum contacts between appellees and the [forum].").

III. CONCLUSION
Accordingly, we affirm the order of the district court dismissi ng the complaint for lack of personal jurisdiction.

A true copy.

Attest:

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