FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE Hon. D. Brock Hornby, U.S. District Judge
G. Goggin, with whom Verrill Dana, LLP was on brief, for
A. Woodcock III, with whom Edward J. Sackman and Bernstein
Shur PA were on brief, for appellant.
Lynch, Selya, and Lipez, Circuit Judges.
the particular facts of this case, we affirm the thoughtful
holding of the district court that the exercise of specific
personal jurisdiction against a German corporation under
Federal Rule of Civil Procedure 4(k)(2) does not offend the
Due Process Clause of the United States Constitution. We note
that this is an area in which the Supreme Court has not yet
had the occasion to give clear guidance, and so we
deliberately avoid creating any broad rules.
the following facts from the undisputed record. Scrutinizer
(Scrutinizer) is a German corporation with its principal
place of business in Kassel, Germany. Through its
interactive, English-language website, Scrutinizer runs a
"self-service platform" that helps customers build
better software. Scrutinizer brings its customers' code
from a third-party hosting service like GitHub to its
"controlled cloud environment," where it runs
"software analysis tools" meant to "improve
source-code quality, eliminate bugs, and find security
vulnerabilities." Scrutinizer offers potential customers
a fourteen-day free trial. In the course of its activities,
Scrutinizer employs Google Analytics.
who contract to use Scrutinizer's online service can pay
only in euros. Scrutinizer's standard contract with those
customers contains a forum-selection clause and a
choice-of-law clause that provide that all lawsuits relating
to the contract be brought in German courts and under German
law. Scrutinizer maintains no U.S. office, phone number, or
agent for service of process; it directs no advertising at
the United States; and its employees do not go to the United
States on business.
provides its service globally. In an affidavit,
Scrutinizer's founder said that customers can use the
service "anywhere where Internet access is
available." Scrutinizer's website states that it is
"[t]rusted by over 5000 projects and companies around
the world." Over three-and-a-half years, from January
2014 to June 2017,  Scrutinizer sold its services to 156 U.S.
customers. These sales occurred in thirty states, and the
revenue from the contracts remitted to Scrutinizer €165,
212.07. This amount was just under $200, 000 in June 2017.
The record does not reveal what percentage of
Scrutinizer's total revenue comes from the United States.
It does, however, detail Scrutinizer's customer numbers
by state: from fifty-one in California to one in each of
eight other states. During the three-and-a-half year period,
Scrutinizer had two Maine customers, who collectively paid
Scrutinizer 3, 100 for its services.
International, Inc. (Plixer), a Maine corporation, sued
Scrutinizer in federal district court in Maine on November
21, 2016, for trademark infringement. Plixer owns the U.S.
registered mark "Scrutinizer," for which it filed
in July 2015. Plixer's trademark application said that
Plixer used the mark as early as November 2005. That
application covered "[c]omputer software and hardware
for analyzing, reporting and responding to malware infections
and application performance problems, used in the field of
information technology." In its complaint, Plixer
alleged that Scrutinizer's use of the term
"Scrutinizer" caused "confusion, mistake or
deception as to the source" of Scrutinizer's
services; that the use "will infringe and/or dilute
Plixer's prior rights" in the mark; that the use
"will interfere with Plixer's use" of its mark;
and that Scrutinizer's "services are closely related
to the services covered by Plixer's" mark, so
"the public is likely to be confused about whether
Plixer is the source of [Scrutinizer's] services or
whether Plixer is affiliated with or the sponsor of
gave two bases for personal jurisdiction over Scrutinizer,
only one of which is at issue in this appeal. It said that
Scrutinizer's nationwide contacts with the United States
supported specific jurisdiction under Federal Rule of Civil
Procedure 4(k)(2). After rejecting an initial motion to
dismiss, the district court allowed limited
January 2017, after this lawsuit began, Scrutinizer filed a
U.S. trademark application for "Scrutinizer." The
record is silent on the reasons why Scrutinizer filed this
prima facie review, the district court found that it could
constitutionally exercise specific personal jurisdiction over
Scrutinizer under Rule 4(k)(2). Plixer Int'l,
Inc. v. Scrutinizer GmbH, 293
F.Supp.3d 232, 245 (D. Me. 2017). It held that Scrutinizer
"operated a highly interactive website that sold its
cloud-based services directly through the website, that it
was open to business throughout the world, that it accepted
recurrent business from the United States in a substantial
amount, and that it did so knowingly." Id. at
241. The district court concluded that the criteria for
purposeful availment in the United States had been met.
Id. at 242-43. The district court also found that
the exercise of jurisdiction was reasonable and that
Scrutinizer had not carried its burden of proving otherwise.
Id. at 245.
of its analysis, the district court considered
Scrutinizer's application for U.S. trademark protection.
The record gave the district court "no hint" why
Scrutinizer had filed the application. Id. at 243.
The district court did not find that contact conclusive, but
said that "it does confirm [Scrutinizer's] desire to
deal with the American market." Id. at 243.
granted this interlocutory appeal on the district court's
Standard of Review
district court held that Plixer had made a prima facie
showing of personal jurisdiction. On prima facie review, we
take the plaintiff's evidentiary proffers as true and we
consider uncontradicted facts proffered by the defendant.
C.W. Downer & Co. v. Bioriginal
Food & Sci. Corp., 771 F.3d 59, 65 (1st Cir. 2014).
The plaintiff's burden is to proffer evidence
"sufficient to support findings of all facts essential
to personal jurisdiction" without relying on unsupported
allegations. A Corp. v. All Am. Plumbing, Inc., 812
F.3d 54, 58 (1st Cir. 2016). We review de novo the district
court's conclusion that Plixer met its burden of
proffering sufficient evidence to support findings of all
facts essential to personal jurisdiction. See
Foster-Miller, Inc. v. Babcock & Wilcox
Can., 46 F.3d 138, 147 (1st Cir. 1995).
basis for asserting personal jurisdiction over Scrutinizer is
Federal Rule of Civil Procedure 4(k)(2). Rule 4(k)(2) has
three requirements: (1) the cause of action must arise under
federal law; (2) the defendant must not be subject to the
personal jurisdiction of any state court of general
jurisdiction; and (3) the federal court's exercise of
personal jurisdiction must comport with due process.
United Statesv.Swiss Am. Bank,
Ltd. (Swiss I), 191 F.3d 30, 38 (1st Cir.