Virgin Health Corporation v. Virgin Enterprises

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 19, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 09-11438
Non-Argument Calendar
________________________
D. C. Docket No. 08-22557-CV-UU
VIRGIN HEALTH CORPORATION,
a Florida corporation,
Plaintiff-Appellant,
versus
VIRGIN ENTERPRISES LIMITED,
an English corporation,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 19, 2010)
Before MARCUS, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:

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This case returns to us after the district court’s review of its docket
confirmed that the appellant Virgin Health Corporation (VHC) timely filed its
notice of appeal. With the issue of our jurisdiction thus resolved, we now1
entertain VHC’s request to reverse the district court’s dismissal of its trademark
and cyber-squatting declaratory judgment action against Virgin Enterprises
Limited (VEL). The district court found that Florida’s long-arm statute precluded
the exercise of personal jurisdiction over VEL. After careful review, we affirm the
judgment of the district court.
I. Background
This dispute between VHC and VEL is one of several that have played out in
different forums concerning the parties’ respective rights to use the term “Virgin
Health” and its cognates in various marketing contexts. VHC, a Florida
corporation, has provided home health care services in Miami-Dade and Palm
Beach counties since at least November 2005. VEL, an English corporation, is part
of the Virgin conglomerate based in London. VEL’s sole function is licensing the
use of the Virgin name to hundreds of subsidiaries that reveal the breadth of the
conglomerate’s interests: entertainment, aviation, tourism, cellular phones,
In an order dated November 13, 2009, this panel remanded the case to the district court1
to determine whether its docket showed that VHC filed its notice of appeal within the thirty-day
jurisdictional window of Federal Rule of Appellate Procedure 4(a)(1)(A). On December 28,
2009, the district court entered its order correcting the docket. D.E. 43.
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and—most relevant to this case—health-related enterprises.
In February 2005, VEL filed applications with the U.S. Patent & Trademark
Office to register its interest in the service mark “VIRGIN” for a number of
business enterprises, among them health insurance and medical evaluation
services. In late 2007, VEL sent VHC a letter asking it to cease using the name
Virgin Health Corp., and to cease using the Internet domain name virginhealth.net,
in connection with health care services. VEL noted that its licensee Virgin
HealthMiles, Inc. was operating its own website, virginlifecare.com. VEL asked
VHC to transfer the domain name virginhealth.net to VEL.
The conflict moved into the federal courts. In January 2008, VEL sued
VHC and other defendants in New York, alleging trademark infringement and
cyber-squatting. VEL subsequently dismissed those claims against VHC. In
September 2008, VHC filed the instant declaratory judgment action against VEL in
the Southern District of Florida. The action sought relief in the form of three
declarations: (1) VHC had not infringed VEL’s trademarks in violation of Florida
common law and the Lanham Act; (2) VHC had not cyber-squatted in violation of
the Lanham Act; and (3) VHC had not violated the Florida Deceptive and Unfair
Trade Practices Act. VHC also filed oppositions to VEL’s pending applications
with the federal trademark office, but it later moved for a stay in the trademark
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proceedings in order to prosecute its declaratory judgment claims in district court.
VHC served VEL in London. VEL moved to dismiss for lack of personal
jurisdiction. On February 11, 2009, the district court entered an order dismissing
VHC’s case for lack of personal jurisdiction over VEL.
II. Standard of Review
We review de novo a district court’s dismissal for lack of personal
jurisdiction. United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009)
(citation omitted). The plaintiff bears the initial burden of alleging sufficient
jurisdictional facts to make a prima facie case; if the defendant rebuts with contrary
affidavit evidence, the plaintiff reassumes the burden. Id. (citation omitted). The
plaintiff establishes a prima facie case if it “presents enough evidence to withstand
a motion for directed verdict.” Consol. Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286,
1291 (11th Cir. 2000) (citation omitted). A federal court typically applies a two-
step test when analyzing personal jurisdiction over a nonresident defendant:
whether the exercise of jurisdiction (1) comports with the long-arm statute of the
forum state; and (2) does not violate the Due Process Clause of the Fourteenth
Amendment. Fed. R. Civ. P. 4(k)(1)(A); Mazer, 556 F.3d at 1274 (citation
omitted). The reach of the Florida long-arm statute is a question of Florida law;
therefore, we must construe it as we believe the Florida Supreme Court would. Id.
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(citation omitted). In the absence of authority from the Florida Supreme Court, we
look to the Florida district courts of appeal. Id. at 1274–75 (citation omitted).
III. Discussion
On appeal, VHC alleges that VEL is subject both to specific and general
jurisdiction in Florida. VHC further asserts that VEL’s licensees are its agents
capable of subjecting VEL to the district court’s jurisdiction. Upon reviewing the
first prong of the personal jurisdiction inquiry, we affirm the district court’s
finding that VHC failed to meet the requirements of Florida’s long-arm statute.
This conclusion makes it unnecessary for us to consider the second prong,
constitutionality.
VHC’s argument for specific jurisdiction under § 48.193(1), Fla. Stat.,
which requires that VHC’s claims “aris[e] from” VEL’s acts, rests on the cease-
and-desist letter that VEL mailed from New York to VHC in Florida. VHC claims
this letter qualifies VEL as “carrying on a business” in Florida under §
48.193(1)(a), Fla. Stat. We disagree. While sending a letter into Florida could
invite specific jurisdiction under § 48.193(1)(b) if the letter itself is tortious, Wendt
v. Horowitz, 822 So. 2d 1252, 1260 (Fla. 2002), the act of sending the letter, by
itself, does not mean that VEL is doing business in Florida for purposes of §
48.193(1)(a). Nida Corp. v. Nida, 118 F. Supp. 2d 1223, 1228 (M.D. Fla. 2000);
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Insight Instruments, Inc. v. A.V.I.-Advanced Visual Instruments, Inc., 44 F. Supp.
2d 1269, 1272 (M.D. Fla. 1999). While a demand letter frequently precedes a
lawsuit, the letter here cannot be said to have given rise to VHC’s claims.
As for general jurisdiction under § 48.193(2), Fla. Stat., VHC has not refuted
VEL’s proffer that VEL has no office, employees, real property, bank account,
mailing address, or telephone number in Florida; and that it has not engaged in
business or made any contracts in Florida. Nor does general jurisdiction apply to
VEL because it filed an infringement suit in the Southern District of Florida in
2006. See Gibbons v. Brown, 716 So. 2d 868, 870–71 (Fla. 1st DCA 1998) (per
curiam).
VHC also contends that VEL’s licensees, including Virgin HealthMiles,
Virgin Atlantic Airways, Virgin Entertainment, Virgin Mobile, and Virgin
Vacations, are VEL’s agents capable of subjecting VEL to personal jurisdiction in
Florida. VHC relies on the reference to an “agent” in § 48.193(1), Fla. Stat. To
support a finding of agency, Florida courts require (1) acknowledgment by the
principal that the agent will act for him; (2) acceptance by the agent; and (3)
control by the principal over the actions of the agent. Goldschmidt v. Holman, 571
So. 2d 422, 424 n.5 (Fla. 1990) (citation omitted).
VHC fails to satisfy this standard. Although VHC notes that VEL (1)
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negotiates licenses with licensees; (2) monitors the use of the licenses; (3) applies
for and defends service marks; and (4) polices against infringement of marks, none
of this activity, nor the activity of the licensees as evidenced through screenshots
of their online activity, demonstrates that the licensees are the agents of VEL.
VHC’s conclusory assertion that VEL has contractual veto power over the quality
of its licensees’ goods and services likewise fails to satisfy the test that would
impute the licensees’ activities to VEL for purposes of finding personal
jurisdiction. Therefore, VHC has failed to show that the Florida long-arm statute
permits the district court’s assertion of personal jurisdiction over VEL. We2
therefore do not reach the second question of the personal jurisdiction analysis:
whether such an exercise of jurisdiction would be constitutional.
IV. Conclusion
VHC pleaded, and the district court analyzed, the question of personal jurisdiction here2
as implicating Florida’s long-arm statute. But VHC might have argued personal jurisdiction
under the so-called “federal long-arm” statute, Federal Rule of Civil Procedure 4(k)(2). Oldfield
v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210, 1218 & n.23 (11th Cir. 2009) (citation omitted).
The federal long-arm statute can reach a foreign defendant that is not subject to the jurisdiction
of the courts of general jurisdiction of any state, as long as the plaintiff’s claim arises under
federal law and the exercise of personal jurisdiction would not offend Fifth Amendment due
process. Id. at 1218–19 (citing Consol. Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1291 (11th
Cir. 2000)). VEL could have defeated this theory by identifying a U.S. state in which it was
subject to personal jurisdiction in a state court, id. at 1218 n.22, or by showing that its
aggregated contacts with the United States as a whole were insufficient, United States v. Swiss
Am. Bank, Ltd., 191 F.3d 30, 41 (1st Cir. 1999). Since the plaintiff bears the burden of pleading
jurisdiction, we will not substitute our own theory for its. Moreover, our general rule is not to
review a theory that was not raised in the district court. Wright v. Hanna Steel Corp., 270 F.3d
1336, 1342 (11th Cir. 2001).
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VHC has failed to show that Florida’s long-arm statute permits personal
jurisdiction over VEL; therefore, we affirm the judgment of the district court.3
AFFIRMED.
VHC’s request for oral argument is denied.3
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