Presby Patent Trust v. Infiltrator Systems, Inc.

Filing 17

///ORDER granting 8 Motion to Dismiss. Infiltrator's motion to dismiss the complaint for lack of personal jurisdiction and improper venue is GRANTED. The clerk shall enter judgment accordingly and close the case. So Ordered by Chief Judge Joseph N. Laplante.(jb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Presby Patent Trust
v.

Civil No. 14-cv-542-JL
Opinion No. 2015 DNH 111

Infiltrator Systems, Inc.
MEMORANDUM ORDER
This case involves personal jurisdiction in the area of
patent infringement, and specifically whether this court has
either general or personal jurisdiction over defendant
Infiltrator Systems, Inc.

The plaintiff in this action, Presby

Patent Trust, alleges that Infiltrator directly and indirectly
infringes one or more claims of U.S. Patent No. 8,815,094.

The

‘094 patent issued on August 26, 2014, and claims a method of
processing effluent, such as in a septic system.

Presby alleges

that Infiltrator directly infringes the ‘094 patent by making,
using, importing, selling, and/or offering to sell Infiltrator’s
Advanced Treatment Leachfield (“ATL”) in-ground septic system,
and indirectly infringes the ‘094 patent by inducing others to do
so and by contributing to the infringement of the ‘094 patent by
others.

This court has subject-matter jurisdiction under 28

U.S.C. §§ 1331 (federal question) and 1338(a) (patents).
Infiltrator, which is incorporated and has its principal
place of business in Connecticut, moves to dismiss for lack of
personal jurisdiction and improper venue.

See Fed. R. Civ.

P.12(b)(2), (3).

After oral argument, the court grants the

defendant’s motion to dismiss.

Infiltrator’s contacts with New

Hampshire are insufficient for this court to exercise personal
jurisdiction over it in this action.
I.

Applicable Legal Standard
“Personal jurisdiction implicates the power of a court over

a defendant . . . . [B]oth its source and its outer limits are
defined exclusively by the Constitution,” namely, the due process
clause of the Fourteenth Amendment.

Foster–Miller, Inc. v.

Babcock & Wilcox Can., 46 F.3d 138, 143–44 (1st Cir. 1995)
(citing Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de
Guinee, 456 U.S. 694, 702 (1982)); U.S. Const. Am. XIV.

Whether

a district court has personal jurisdiction over a defendant is a
two-step inquiry:

first, the long-arm statute of the forum state

must provide for jurisdiction over the defendant and second, if
it does, the court’s exercise of that jurisdiction must comport
with due process.1

Grober v. Mako Prods. Inc., 686 F.3d 1335,

1345 (Fed. Cir. 2012).

Where, as here, the applicable long-arm

statute and federal due process limitations are coextensive, “the

1

As the parties expressly agreed at oral argument, because
personal jurisdiction in a patent case is “intimately involved
with the substance of patent law,” the law of the Federal Circuit
governs this inquiry. Grober, 686 F.3d at 1345 (Fed. Cir. 2012)
(internal quotations omitted).
2

state limitation collapses into the due process requirement” and
the two inquiries “coalesce into one.”

Trintec Indus., Inc. v.

Pedre Promotional Prods., Inc., 395 F.3d 1275, 1279 (Fed. Cir.
2005); see also Phillips Exeter Acad. v. Howard Phillips Fund,
196 F.3d 284, 287 (1st Cir. 1999) (“New Hampshire's long-arm
statute reaches to the full extent that the Constitution
allows.”).
Due process requires that a defendant must have sufficient
“minimum contacts” with the forum in question “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, 316 (1945) (internal quotations
omitted).

Consistent with the requirements of due process, a

court may exercise one of two categories of personal
jurisdiction:

general and specific.

General jurisdiction exists

when “the corporation's affiliations with the State in which suit
is brought are so constant and pervasive ‘as to render [it]
essentially at home in the forum State.’”

Daimler AG v. Bauman,

134 S. Ct. 746, 751 (2014) (quoting Goodyear Dunlop Tires
Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011)).
Specific jurisdiction, on the other hand, “is confined to
adjudication of issues deriving from, or connected with, the very
controversy that establishes jurisdiction.”

3

Goodyear, 131 S. Ct.

at 2851 (internal quotations omitted).

Infiltrator argues that

this court may exercise neither specific nor general jurisdiction
in this case.
Presby bears the burden of showing that Infiltrator has
sufficient “minimum contacts” with New Hampshire to satisfy the
requirements of due process.

Where, as here, “the district

court’s disposition of the personal jurisdictional question is
based on affidavits and other written materials in the absence of
an evidentiary hearing, a plaintiff need only to make a prima
facie showing that defendants are subject to personal
jurisdiction.”

Elecs. for Imaging, Inc. v. Coyle, 340 F.3d 1344,

1349 (Fed. Cir. 2003).

The plaintiff is not limited to its

allegations in the complaint and may make this showing through
affidavits attached to its opposition.2

In determining whether a

plaintiff has made a prima facie showing of personal
jurisdiction, the court “accept[s] the uncontroverted allegations

2

A court considering a motion to dismiss on personal
jurisdiction grounds may properly consider documents attached to
an opposition, even if they contain hearsay, so long as that
evidence “bears circumstantial indicia of reliability.” Akro
Corp. v. Luker, 45 F.3d 1541, 1546-47 (Fed. Cir. 1995); see also
Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558,
1562 (Fed. Cir. 1994). At oral argument, counsel for Infiltrator
confirmed that it does not dispute the accuracy of the exhibits
attached to Presby’s opposition for purposes of this motion and
argues only that those exhibits should not be considered because
they contain hearsay. Because these documents appear to be
reliable, the court sees no reason to disregard them.
4

in the plaintiff’s complaint as true and resolve[s] any factual
conflicts in the affidavits in the plaintiff’s favor.”
II.

Id.

Background
The relevant facts, construed in the light most favorable to

Presby, are as follows.

Infiltrator makes and sells septic

systems, including the ATL system that Presby accuses of
infringing the ‘094 patent.

Though incorporated and with its

principal place of business in Connecticut--where its president
maintains an office--Infiltrator is present in New Hampshire.

It

sells septic systems in New Hampshire through its New Hampshirebased sales representative, resellers, and distributors; obtains
approvals for its septic systems to be installed in New Hampshire
through the New Hampshire Department of Environmental Services;
provides New Hampshire-specific installation instructions to its
customers; exhibits its products at trade shows in New Hampshire;
hosts educational seminars about its septic systems in New
Hampshire; and is an “affiliate member” of a New Hampshire-based
trade association.
Despite Infiltrator’s several contacts with the state, at
oral argument, Presby conceded that Infiltrator had neither
marketed nor sold the accused ATL System in New Hampshire at the
time Presby filed its complaint, and that Infiltrator only sells
non-infringing systems in New Hampshire at this time.
5

Nor has

Infiltrator appointed an agent for service of process in New
Hampshire.
III. Analysis
A.

Specific Jurisdiction

Whether a district court has specific jurisdiction over a
defendant in a patent case “entails a three-part test:

(1)

whether the defendant purposefully directs activities at the
forum's residents; (2) whether the claim arises out of or relates
to those activities; and (3) whether assertion of personal
jurisdiction is reasonable and fair.”

AFT-TG, LLC v. Nuvoton

Tech. Corp., 689 F.3d 1358, 1361 (Fed. Cir. 2012) (citing Nuance
Commc'ns, Inc. v. Abbyy Software House, 626 F.3d 1222, 1231 (Fed.
Cir. 2010)).

Because Presby has not shown that the claims it

asserts in this action “arise[] out of or relate[] to” activities
that Infiltrator purposefully directs to New Hampshire, the court
does not have specific jurisdiction over Infiltrator.
The parties conceded at oral argument, and the court agrees,
that Infiltrator satisfies the first part of the test.

Among

other activities, as described supra, Infiltrator employs a sales
representative in New Hampshire and sells septic systems into the
state (both directly and through distributors).

There is no

question that Infiltrator purposefully directs these activities
at residents of New Hampshire.

The operative question for
6

specific jurisdiction in this case, then, is the second part of
the test--whether Presby’s claim “arises out of or relates to”
those activities.

It does not.

Presby’s cause of action is the alleged direct and indirect
infringement of its patent.

For this court to have specific

jurisdiction over Infiltrator, Presby would have to allege that
Infiltrator directly or indirectly infringed its patent in New
Hampshire.3

HollyAnne Corp. v. TFT, Inc., 199 F.3d 1304, 1308 &

n.4 (Fed. Cir. 1999) (affirming dismissal for lack of personal
jurisdiction where plaintiff conceded that defendant did not sell
or offer to sell accused products in the forum).

A party

directly infringes a patent when it makes, uses, offers to sell
or sells in the United States, or imports into the United States,
any patented invention, without authorization from the patentee.
35 U.S.C. § 271(a).

A party indirectly infringes a patent when

it induces another to infringe or contributes to the infringement

3

At oral argument, the parties agreed that Avocent
Huntsville Corp. v. Aten Intern. Co., 552 F.3d 1324 (Fed. Cir.
2008) controls on the question specific jurisdiction. There, the
Federal Circuit explained that, in an ordinary patent
infringement suit, “for purposes of specific jurisdiction, the
jurisdictional inquiry is relatively easily discerned from the
nature and extent of the commercialization of the accused
products or services by the defendant in the forum.” Id. at
1332. Commercialization in this context is coextensive with the
activities that constitute infringement under 35 U.S.C. § 271(a).
See id. Because Presby concedes that Infiltrator has not engaged
in any of those activities in New Hampshire, the outcome here is
the same.
7

by another.

35 U.S.C. § 271(b), (c).

Presby has not connected

either of these claims to any conduct by Infiltrator in New
Hampshire.

Specifically, Presby does not allege--in its

complaint or its opposition to Infiltrator’s motion to dismiss-that Infiltrator makes, sells, uses, or offers for sale its
accused ATL system in New Hampshire, or that Infiltrator induces
or contributes to the infringement by others in New Hampshire.
In fact, Presby concedes that the ATL system is neither sold nor
marketed in New Hampshire.

In the absence of those allegations,

this court cannot exercise specific jurisdiction over Infiltrator
on Presby’s claims for patent infringement.

See Grober, 686 F.3d

at 1346-47 (affirming order dismissing defendants who did not
engage in alleged infringing activity in the forum state); F & G
Research, Inc. v. Paten Wireless Tech., Inc., No. 2007-1206, 2007
WL 2992480, at *3 (Fed. Cir. Oct. 15, 2007) (affirming dismissal
for lack of personal jurisdiction where plaintiff did not allege
that defendant sold infringing products in the forum in
question).
Presby argues that the disjunctive nature of the standard-that its claims must “arise from or relate to” Infiltrator’s
activity--allows the court to find specific jurisdiction because
Presby’s claims generally “relate to” Infiltrator’s septic system
business.

Infiltrator would not research and develop new,

8

allegedly infringing products to meet the needs of its customers
in other states, Presby contends, if it did not engage in a
regular (and non-infringing) septic system business in New
Hampshire.

While some courts, including the Court of Appeals for

the First Circuit, have suggested that the disjunctive language
of the “arises from or relates to” standard may “portend[] added
flexibility and signal[] a relaxation of the applicable
standard,” Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201,
206 (1st Cir. 1994), the Supreme Court has recently reiterated
that it must be the defendant’s “suit-related conduct” that
“create[s] a substantial connection with the forum state,” Walden
v. Fiore, 134 S. Ct. 1115, 1121 (2014).4

The suit-related

conduct in a patent case is the alleged infringing activity,
which must occur in the forum state for specific jurisdiction to
exist.

See HollyAnne Corp., 199 F.3d at 1308.

Presby has only

alleged the most attenuated connection between Infiltrator’s sale
of non-infringing products, its research and development efforts,
and the potential for infringing activities in New Hampshire.

4

It is worth noting that neither the Court of Appeals nor
the Supreme Court restricted its holding to a construction of
“arising from” but not “relating to.” The Supreme Court instead
focused on the “relationship among the defendant, the forum, and
the litigation.” Walden, 134 S. Ct. at 1126. The Court of
Appeals similarly concluded that “[w]e know to a certainty only
that the [relatedness] requirement focuses on the nexus between
the defendant’s contacts and the plaintiff’s cause of action.”
Ticketmaster-New York, 26 F.3d at 206.
9

This is not enough to satisfy due process and establish specific
jurisdiction.

Therefore, this court lacks specific jurisdiction

over Infiltrator.5
B.

General Jurisdiction

Having determined that it cannot exercise specific
jurisdiction over Infiltrator, the court considers whether it can
exercise general jurisdiction.

For this court to do so,

Infiltrator must have contacts with New Hampshire that are “so
‘continuous and systematic’ as to render [it] essentially at home
in” New Hampshire.
131 S. Ct. at 2851).

Daimler, 134 S. Ct. at 749 (quoting Goodyear,
Though the parties dispute whether Daimler

applies to a situation where, as here, the parties are both
located in the United States and the plaintiff is located in the
forum,6 the court agrees with Infiltrator that Daimler controls

5

Because the court concludes that Presby has not satisfied
the second part of the three-part test, it need not address the
third--whether assertion of personal jurisdiction in this action
would be reasonable and fair to the defendant--which corresponds
with the “fair play and substantial justice” prong of the
International Shoe analysis. See Grober, 686 F.3d at 1346.
6

Presby attempts to distinguish Daimler on the grounds that,
unlike the plaintiff in Daimler, Presby is a resident of the
forum state and, as the patent-holder, it would be injured in New
Hampshire if Infiltrator were allowed to continue marketing and
selling its ATL systems (presumably, in other states). This
argument runs afoul of the Supreme Court’s decision in Walden,
issued shortly after Daimler. There, the Court reaffirmed that
the inquiry for general jurisdiction is whether the defendant-not the plaintiff--has the necessary “minimum contacts” with the
10

here and that, under Daimler, the court cannot exercise general
jurisdiction over Infiltrator on the facts alleged by Presby.
Prior to Daimler, courts found general jurisdiction over a
defendant where the defendant had “continuous and systematic
general business contacts” with the forum state.
F.3d at 1360 (internal quotations omitted).

AFTG-TG, 689

This is,

essentially, the test that Presby asks the court to apply here.7
However, the Supreme Court in Daimler rejected this approach as
“unacceptably grasping.”

Daimler, 134 S. Ct. at 760.

In Daimler, the Supreme Court addressed the question of
whether the United States District Court for the Northern
District of California could exercise general jurisdiction over

forum to satisfy due process. Walden, 134 S. Ct. at 1122 (“We
have consistently rejected attempts to satisfy the
defendant-focused ‘minimum contacts’ inquiry by demonstrating
contacts between the plaintiff (or third parties) and the forum
State. . . . Put simply, however significant the plaintiff's
contacts with the forum may be, those contacts cannot be
‘decisive in determining whether the defendant's due process
rights are violated.’” (quoting Rush v. Savchuk, 444 U.S. 320,
332 (1980))).
7

At oral argument, Presby’s counsel argued that Barriere v.
Juluca, No. 12-23510, 2014 WL 652831 (S.D. Fla. Feb. 19, 2014),
supports it contention that, even under Daimler, a defendant’s
“continuous and systematic” contacts with the forum are
sufficient to establish general jurisdiction. There, the
District Court for the Southern District of Florida found that it
could exercise general jurisdiction over an Anguillan corporation
with its principal place of business in Anguilla on a claim that
arose in Anguilla because the defendant had “such minimum
contacts with Florida to be considered ‘at home’” there. Id. at
*8. For the reasons discussed below, the court is not persuaded.
11

DaimlerChrystler Aktiengesellscaft (“Daimler”), a German
corporation, for claims related to human rights abuses committed
by Daimler’s Argentinian subsidiary during Argentina’s “Dirty
War” between 1976 and 1983.

Daimler, 134 S. Ct. 750.

The

plaintiffs, all Argentinian residents, argued that California
could exercise general jurisdiction over Daimler because its
subsidiary, Mercedes-Benz USA, LLC (“MBUSA”), a Delaware
corporation with a principal place of business in New Jersey,
maintained several corporate facilities there, and its California
sales constituted 2.4% of Daimler’s worldwide sales and over 10%
of its sales in the United States.

Id. at 751-52.

After

concluding that a subsidiary like MBUSA could not be considered
an agent for jurisdictional purposes, the Court explained that,
even if MBUSA were “at home” in California and even if its
contacts with the forum were imputable to Daimler, “there would
still be no basis to subject Daimler to general jurisdiction in
California,” because Daimler’s contacts with the state were
insufficient.

Id. at 760.

Under Daimler, then, it is no longer enough for the
defendant to have “continuous and systematic” contacts with the
forum state.

See Otsuka Pharm. Co. v. Mylan Inc., No. 14-4508,

2015 WL 1305764, at *5 (D.N.J. Mar. 23, 2015) (acknowledging
Daimler as causing a shift in the general jurisdiction standard);

12

see also Tanya J. Monestier, Where Is Home Depot at Home? Daimler
v. Bauman and the End of Doing Business Jurisdiction, 66 HASTINGS
L.J. 233, 265-66 (2014) (discussing same).

Those contacts must

be of such a degree that they essentially render the defendant
“at home” in the forum state.

Daimler, 134 S. Ct. at 761.

“[T]he paradigm forum for the exercise of general jurisdiction”
for a corporation, the Supreme Court explained, is its “place of
incorporation and principal place of business.”

Daimler, 134 S.

Ct. at 760 (quoting Goodyear, 131 S. Ct. at 2851).

This promotes

predictability, allowing corporations to “structure their primary
conduct with some minimum assurance as to where that conduct will
and will not render them liable to suit” while, at the same time,
affording plaintiffs “recourse to at least one clear and certain
forum in which a defendant corporation may be sued on any and all
claims.”

Id. at 762 n.20.

The Supreme Court left open the possibility that “a
corporation’s operations in a forum other than its formal place
of incorporation or principal place of business may be so
substantial and of such a nature as to render the corporation at
home in that State,” offering Perkins v. Benguet Consol. Mining
Co., 342 U.S. 437 (1952), as an example of such an exceptional
case.

Daimler, 134 S. Ct. at 761 n.19.

In Perkins, a

corporation organized and with its principal place of business in

13

the Philippines was forced to effectively relocate to Ohio when
Japan occupied the Philippines during World War II.
447-48.

342 U.S. at

The Supreme Court held that Ohio courts could exercise

general jurisdiction over that defendant because, it later noted,
“Ohio was the corporation’s principal, if temporary, place of
business.”

Daimler, 134 S. Ct. at 756.

Thus, Daimler cannot be read so narrowly, as Infiltrator
suggests, as to restrict general jurisdiction over a defendant
only to the forum where it is incorporated or has its principal
place of business.

But neither is its holding so broad as to

support general jurisdiction over a defendant doing business in
the forum state without some special circumstance that ties the
defendant more particularly to the forum state.

Rather, for a

court to exercise general jurisdiction over the defendant in a
forum that is not the defendant’s place of incorporation or
principal place of business, Daimler requires at the very least
that the defendant have systematic and continuous contacts with
the forum that sets the forum apart from the other states where
defendant may conduct business--contacts that render the forum in
some manner equivalent to a principal place of business.

See,

e.g., Fed. Home Loan Bank of Boston v. Ally Financial, Inc., No.
11-10952, 2014 WL 4964506, at *2 (D. Mass. Sept. 30, 2014)
(finding no general jurisdiction under Daimler where defendant’s

14

contacts with forum were no more significant than with any other
state); Bulwer v. Mass. Coll. of Pharmacy & Health Sciences, No.
13-521, 2014 WL 3818689, at *5 (D.N.H. Aug. 4, 2014) (McCafferty,
J.) (same).

See also Monestier, 66 HASTINGS L.J. at 266 (“Courts

must evaluate ‘at home’ using a comparative approach, that is, by
assessing a corporation’s contacts with the forum in relation to
its contacts with other forums. ‘At home’ is seen as being a
unique place akin to the corporation’s state of incorporation or
its principal place of business.”).
Presby suggests that the test for general jurisdiction set
forth in Daimler only applies in cases wherein both plaintiffs
and defendants are foreign to, and the cause of action accrues
outside of, the United States.
unsupportably narrow.

This reading is also

The Supreme Court has explicitly defined a

“foreign corporation” in the personal jurisdiction context to be
one foreign to the state in which jurisdiction is invoked--not
foreign to the United States.

See Goodyear, 131 S. Ct. at 2851

(2011) (“A court may assert general jurisdiction over foreign
(sister-state or foreign-country) corporations to hear any and
all claims against them when their affiliations with the State
are so continuous and systematic as to render them essentially at
home in the forum State.”) (emphasis added) (internal quotation
marks omitted).

15

Applying Daimler to the facts of this case, the court
concludes that it cannot exercise general jurisdiction over
Infiltrator.

As an initial matter, Infiltrator is incorporated

and has its principal place of business in Connecticut, rendering
that state “the paradigm forum for the exercise of general
jurisdiction” over Infiltrator.

See Daimler, 134 S. Ct. at 760.

The inquiry, then, is whether Presby has made a prima facie
showing that this is an exceptional case.

Id. at 761, n.19.

It

has not.
The parties do not dispute that Infiltrator has several and
continuous contacts with the state of New Hampshire.
a sales representative here.
here.

It employs

It markets and sells septic systems

In connection with those activities, it attends trade

shows, demonstrates its products, seeks approvals for its
products, instructs users how to install its products, and has
joined a trade organization, all in New Hampshire.

But none of

these activities essentially render New Hampshire a surrogate for
Infiltrator’s principal place of business.

Nor has Presby

differentiated Infiltrator’s activities here from its activities
in Connecticut or any other state.

In fact, these activities do

not appear to surpass the level of activity that the Supreme
Court rejected as insufficient to confer on California general
jurisdiction over MBUSA.

See Daimler, 134 S. Ct. at 761-72; see

16

also Loyalty Conversion Sys. Corp. v. American Airlines, Inc.,
No. 2:13-CV-655, 2014 WL 4352544, at *5 (E.D. Tex. Sept. 2, 2014)
(Delaware corporation with headquarters in Hawaii not subject to
general jurisdiction in Texas, where it maintained one employee
and made sales to Texas residents).

For the same reason, then,

this court must find that it lacks general jurisdiction over
Infiltrator in this case.
C.

Jurisdictional Discovery

Although Presby did not raise or press this request at oral
argument, it has requested the opportunity to conduct discovery
into whether Infiltrator’s activities confer specific
jurisdiction over it on this court.8

It is true that “a diligent

plaintiff who sues an out-of-state corporation and who makes out
a colorable case for the existence of in personam jurisdiction
may well be entitled to a modicum of jurisdictional discovery if
the corporation interposes a jurisdictional defense.”9
Negrón–Torres v. Verizon Commc'ns, Inc., 478 F.3d 19, 27 (1st

8

Presby has not requested discovery into the court’s general
jurisdiction over Infiltrator.
9

Jurisdictional discovery is not an issue unique to patent
law, and therefore is governed by the law of the First Circuit.
Augogenomics, Inc. v. Oxford Gene Tech. Ltd., 566 F.3d 1012, 1021
(Fed. Cir. 2009). However, Federal Circuit law governs whether
the requested discovery is relevant to the case. Commissariat a
L’Energie Atomique v. Chi Mei Optoelectronics Corp., 395 F.3d
1315, 1323 (Fed. Cir. 2005).
17

Cir. 2007) (quotation marks omitted).

But Presby has not made a

colorable case for personal jurisdiction over Infiltrator.

In

fact, as discussed supra, by conceding that Infiltrator did not
sell or market its accused ATL systems in New Hampshire at the
time Presby filed its complaint, Presby has conceded that this
court does not have specific jurisdiction over Infiltrator on
these claims.
that.

No amount of jurisdictional discovery can change

See United States v. Swiss Am. Bank, Ltd., 274 F.3d 610,

626 (1st Cir. 2001) (request for jurisdictional discovery was
properly denied where plaintiff’s “relatedness showing was
unconvincing”).
Even if Presby had not made that concession, none of the
information that Presby requests is likely to substantiate
Presby’s claim of specific personal jurisdiction.

Specifically,

Presby asks for the opportunity to investigate Infiltrator’s
plans and preparations to market and sell its ATL system in New
Hampshire in the future (including pursuit of regulatory
approvals) and Infiltrator’s “activities in marketing and selling
the ATL system nationwide.”

Opp. to Mot. to Dismiss (document

no. 10) at 13-14; Sur-reply (document no. 14) at 5.

Invoking

Momenta Pharms., Inc. v. Amphastar Pharms., Inc., 841 F. Supp. 2d
514, 520-22 (D. Mass. 2012), Presby argues that jurisdictional
discovery into Infiltrator’s plans to market its ATL system in

18

New Hampshire is appropriate because “[a]n infringing company’s
plan to sell an infringing product in a forum state can be the
basis for a finding of specific personal jurisdiction.”
Mot. to Dismiss (document no. 10) at 13.

Opp. to

But, as Presby admitted

at oral argument, in Momenta, the plaintiff sought discovery into
the defendant’s offers to sell the accused products in the forum
state--behavior that amounts to infringement under 35 U.S.C.
§ 271.

A company’s intention to sell a product, without an

actual offer, does not constitute infringement, and cannot
support a court’s finding of specific jurisdiction.

Nor can

Infiltrator’s plans to sell the ATL system in the future support
specific jurisdiction.

The relevant inquiry is whether the

alleged infringing activity had occurred at the time the
complaint was filed.

See Spectronics Corp. v. H.B. Fuller Co.,

940 F.2d 631, 635 (Fed. Cir. 1995), abrogated on other grounds by
Liquid Dynamics Corp. v. Vaughan Co., Inc., 355 F.3d 1361, 1370
(Fed. Cir. 2004) (“[I]n personam and subject matter
jurisdictional facts must be pleaded, and proved when challenged,
and . . . later events may not create jurisdiction where none
existed at the time of filing.” (citing Mollan v. Torrance, 6
U.S. (1 Wheat.) 172, 173 (1824))).
Presby admits that it had not.

19

Here, as discussed supra,

Similarly, Infiltrator’s sales of the accused system outside
of New Hampshire cannot confer personal jurisdiction over
Infiltrator in New Hampshire.

Presby suggests that Infiltrator’s

updated website, which includes information about the accused
system, amounts to an effort to promote that system nationwide-including to residents of New Hampshire.

But a passive website

through which anyone who has Internet access can obtain
information about a product does not provide a basis for personal
jurisdiction.

GTE New Media Servs. Inc. v. BellSouth Corp., 199

F.3d 1343, 1350 (Fed. Cir. 2000); cf. Gorman v. Ameritrade
Holding Corp., 293 F.3d 506, 513 n.5 (Fed. Cir. 2002) (a website
through which customers in the forum state engage in transactions
may confer personal jurisdiction where “essentially passive”
websites do not).

Presby’s request for discovery into

Infiltrator’s nationwide marketing and sale of the ATL system is
thus unlikely to result in evidence that would allow this court
to exercise specific jurisdiction.

See Crocker v. Hilton Int’l

Barb., Ltd., 976 F.2d 797, 801 (1st Cir. 1992) (affirming denial
of jurisdictional discovery where appellants sought information,
irrelevant to forum contacts, on solicitation of business and the
provision of goods or services outside of the forum).

And where,

as here, the plaintiff has not shown that “it can supplement its

20

jurisdictional allegations through discovery,” GTE, 199 F.3d at
1351-52, jurisdictional discovery is not appropriate.
IV.

Conclusion
For the reasons set forth above, Presby’s request for

jurisdictional discovery is DENIED and Infiltrator’s motion to
dismiss the complaint for lack of personal jurisdiction and
improper venue10 is GRANTED.11

The clerk shall enter judgment

accordingly and close the case.
SO ORDERED.

____________________________
Joseph N. Laplante
United States District Judge
Dated: June 3, 2015
cc:

David W. Rayment, Esq.
Stephen Finch, Esq.
William B. Pribis, Esq.
Peter S. Cowan, Esq.
Robert Ashbrook, Esq.

10

Document no. 8.

11

Because the court concludes that it cannot exercise
personal jurisdiction over Infiltrator in this action, the court
need not address whether venue in this district is proper.
21