Circuit Courts have also continued to analyze personal jurisdiction under this theory. See, e.g. , Plixer Int'l, Inc. v. Scrutinizer GmbH , 905 F.3d 1, 8 (1st Cir. 2018) ; In re DePuy Orthopaedics, Inc., Pinnacle Hip Implant Prod. Litig. , 888 F.3d 753, 778–81 (5th Cir. 2018) ; see alsoShuker v. Smith & Nephew , PLC, 885 F.3d 760, 780 (3d Cir. 2018) (approving of Justice O'Connor's purposeful availment stream of commerce theory). Kohl's makes the following statements: "There is no third ‘stream of commerce’ basis for personal jurisdiction."
While the Federal Circuit has not addressed the stream of commerce theory since the Supreme Court's decision in Bristol-Myers, other Courts of Appeal have continued to apply the theory. See, e.g., Plixer Int'l, Inc. v. Scrutinizer GmbH, 905 F.3d 1, 8 (1st Cir. 2018); In re DePuyOrthopaedics, Inc., Pinnacle Hip Implant Prod. Litig., 888 F.3d 753, 778-81 (5th Cir. 2018); see also Shuker v. Smith & Nephew, PLC, 885 F.3d 760, 780 (3d Cir. 2018) (approving of Justice O'Connor's purposeful availment stream of commerce theory). Absent a clear statement to the contrary from the Supreme Court or the Federal Circuit, this Court will continue to apply the existing stream of commerce jurisprudence.
The Knoxes and MetalForming have asserted specific personal jurisdiction over Schechtl, so the constitutional analysis here has three components: relatedness, purposeful availment, and reasonableness. Plixer Int'l, Inc. v. Scrutinizer GmbH, 905 F.3d 1, 7 (1st Cir. 2018). That is, the plaintiffs must show that (1) their claims directly arise out of or relate to the defendant's forum activities; (2) the defendant's forum contacts represent a purposeful availment of the privilege of conducting activities in that forum, thus invoking the benefits and protections of the forum's laws and rendering the defendant's involuntary presence in the forum's courts foreseeable; and (3) the exercise of jurisdiction is reasonable.
Ford Motor, 141 S.Ct. at 1025 (cleaned up) (quoting Waldenv.Fiore, 571 U.S. 277, 285 (2014)). In addition to a defendant's specific attempts to target the forum state, see Plixer Int'l, Inc.v.Scrutinizer GmbH, 905 F.3d 1, 9 (1st Cir. 2018), a defendant's "'regular flow or regular course of sales' in the [forum]" can demonstrate purposeful availment, too, id. at 10. Although the mere placement of a product into the stream of commerce with the awareness that it could end up in a forum state, without more, is not enough to show purposeful availment, "[a]dditional conduct of the defendant may indicate an intent or purpose to serve the market in the forum State."
Ford Motor, 141 S. Ct. at 1025 (cleaned up) (quoting Walden v. Fiore, 571 U.S. 277, 285, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014) ). In addition to a defendant's specific attempts to target the forum state, see Plixer Int'l, Inc. v. Scrutinizer GmbH, 905 F.3d 1, 9 (1st Cir. 2018), a defendant's " ‘regular flow or regular course of sales’ in the [forum]" can demonstrate purposeful availment, too, id. at 10. Although the mere placement of a product into the stream of commerce with the awareness that it could end up in a forum state, without more, is not enough to show purposeful availment, "[a]dditional conduct of the defendant may indicate an intent or purpose to serve the market in the forum State."
Given these criteria, a finding of purposeful availment necessarily requires more than the unilateral activities of third parties. See Plixer Int'l, Inc. v. Scrutinizer GmbH, 905 F.3d 1, 9 (1st Cir. 2018) ; see also PREP Tours, 913 F.3d at 20 ("[A] plaintiff's ‘unilateral activity’ cannot establish the requisite connection between the defendants and the forum jurisdiction." (quoting Burger King, 471 U.S. at 474-75, 105 S.Ct. 2174 )).
“definitively answer[] how a defendant's online activities translate into contacts” for the purposes of personal jurisdiction, Plixer Int'l, Inc. v.Scrutinizer GmbH, 905 F.3d 1, 7 (1st Cir. 2018). Despite the limited guidance on the matter, “[o]ne baseline principle has emerged: a website operator does not necessarily purposefully avail itself of the benefits and protections of every state in which its website is accessible.” Plixer, 905 F.3d at 8 (collecting cases).
In other words, defendants, including those that are foreign, must “reasonably anticipate being haled into [the forum] court.” Id. at 474 (quoting World-Wide Volkswagen Corp., 444 U.S. at 297); Plixer Int'l, Inc. v. Scrutinizer GmbH, 905 F.3d 1, 7 (1st Cir. 2018) (noting that the purposeful availment requirement applies to foreign defendants).
) PopSockets in turn cites Otter Products, LLC v. Big Birds, LLC, No. 19-0626, ECF No. 39, at *3 (D. Colo. Aug. 9, 2019) [hereinafter Otter I], which relied on Plixer International, Inc. v. Scrutinizer GmbH, 905 F.3d 1, 8-9 (1st Cir. 2018). These authorities make clear that what determines whether contacts created by a plaintiff or its counsel is the intent behind those connections.
Other circuits have offered similar reasoning. See Plixer Int'l, Inc. v. Scrutinizer GmbH, 905 F.3d 1, 10 (1st Cir. 2018) (finding that "voluntary service of the U.S. market" coupled with "not insubstantial income" from that market constituted purposeful availment); Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 171 (2d Cir. 2010) (finding that "by offering bags for sale to New York consumers on [a] . . . website and by selling bags . . . to New York consumers," the defendant "purposefully avail[ed] [him]self of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws" (quoting Burger King, 471 U.S. at 475)). Use of an interactive website to sell products into a forum creates jurisdiction not because of any internet-specific rules, but because that course of conduct pairs a willingness to sell into the forum with regular sales-features that have long constituted purposeful availment.