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finding that by using a distribution channel set up through third party websites to sell the accused products in the forum these accused infringers had purposefully availed themselves to do business in the forum and therefore were subject to specific personal jurisdiction
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CIVIL ACTION NO. 15-11524-WGY
2015-12-23
Acushnet Company, Plaintiff, v. Zimventures, LLC d/b/a 3 Up Golf, Dixon Golf, Inc., Kick X Golf Corporation d/b/a Kick X Sports, Lightning Golf, Monsta Golf LLC, Rife Golf, Vail Roberts, LLC d/b/a/ I Need the Ball, Vice Sporting Goods GmbH d/b/a Vice Golf, Nexen Corporation d/b/a Saintnine, and Ariva Golf, Defendants.
Benjamin M. Stern, Courtney L.B. Batliner, Joshua C. Krumholz, Holland & Knight, LLP, Boston, MA, for Plaintiff. Adam J. Kessel, Frank E. Scherkenbach, Kevin J. DeJong, Fish & Richardson, P.C., Heather B. Repicky, Nutter, McClennen & Fish, LLP, Boston, MA, Michael A. Amon, Fish & Richardson PC, San Diego, CA, Thad Kodish, Fish & Richardson PC, Atlanta, GA, for Defendants.
Benjamin M. Stern, Courtney L.B. Batliner, Joshua C. Krumholz, Holland & Knight, LLP, Boston, MA, for Plaintiff.
Adam J. Kessel, Frank E. Scherkenbach, Kevin J. DeJong, Fish & Richardson, P.C., Heather B. Repicky, Nutter, McClennen & Fish, LLP, Boston, MA, Michael A. Amon, Fish & Richardson PC, San Diego, CA, Thad Kodish, Fish & Richardson PC, Atlanta, GA, for Defendants.
MEMORANDUM OF DECISION
YOUNG, DISTRICT JUDGE.
I. INTRODUCTION
The plaintiff Acushnet Company (“Acushnet”) brought this suit against ten defendants for patent infringement. Three of these defendants, Nexen Corporation (“Nexen”), Dixon Golf, Inc. (“Dixon”), and Rife Golf (“Rife”) (collectively, the “Moving Defendants”), moved to dismiss the complaint for lack of personal jurisdiction, arguing that they lack the minimum contacts with Massachusetts required for this Court to constitutionally assert jurisdiction. This Court concludes that Acushnet has met its burden of making a prima facie showing that each of the Moving Defendants purposefully availed itself of the privilege of doing business in Massachusetts, and that this lawsuit arises out of the Defendants' contacts with the forum state. Moreover, the exercise of jurisdiction here would not run afoul of the principle of fairness embodied in the Due Process Clause of the Constitution. Accordingly, each Defendant's motion to dismiss is denied.
A. Facts Alleged
Acushnet is an entity headquartered in Fairhaven, Massachusetts, that invents, manufactures, and sells golf equipment. Compl. ¶¶ 1, 4, ECF No. 1. Acushnet owns several patents concerning the aerodynamic design of the dimple patterns on the outer casing of a golf ball. Id. ¶¶ 19, 25, 26. Acushnet alleges that each of the ten defendants infringed its patents by selling infringing products to customers in Massachusetts and soliciting business from Massachusetts customers over the Internet. Id. ¶ 15.
U.S. Patents Nos. 6,923,736 ; 7,491,137; 7,226,369; 8,360,902; and 8,465,381. Compl. ¶ 1.
Nexen is a South Korean corporation with a principal place of business in Gimhae City, Republic of Korea. Id. ¶ 10. Nexen sells its allegedly infringing products under the trade name “SaintNine.” Id. Dixon is a corporation with a principal place of business in Tempe, Arizona. Id. ¶ 3. Dixon sells its allegedly infringing products under the brand name “Dixon Fire.” Id. ¶ 34. Rife is a business organization with a principal place of business in Bellevue, Washington. Id. ¶ 7. Rife sells its allegedly infringing products under the trade name “V Motion” or “Innovex V Motion.” Id.
B. Procedural History
Acushnet initiated this lawsuit on April 6, 2015. See Compl. Nexen, Dixon, and Rife moved to dismiss the complaint for lack of personal jurisdiction. Def. Nexen Corp.'s Mot. Dismiss Lack Personal Jurisdiction, ECF No. 50; Def. Dixon Golf, Inc.'s Mot. Dismiss Lack Personal Jurisdiction, ECF No. 54; Def. Rife Golf's Mot. Dismiss Lack Personal Jurisdiction, ECF No. 52.
Acushnet opposed each of the motions to dismiss and alternatively requested leave to conduct jurisdictional discovery. Pl's Opp'n Def. Nexen Corp.'s Mot. Dismiss Lack Personal Jurisdiction (“Pl's Opp'n re Nexen”), ECF No. 79; Pl.'s Opp'n Def. Dixon Golf, Inc.'s Mot. Dismiss Lack Personal Jurisdiction (“Pl's Opp'n re Dixon”), ECF No. 78; Pl.'s Opp'n Def. Rife Golf's Mot. Dismiss Lack Personal Jurisdiction (“Pl's Opp'n re Rife”), ECF No. 80.
Acushnet previously contacted the Moving Defendants to request an opportunity to undertake jurisdictional discovery. Decl. Joshua C. Krumholz, Ex. 1, September 10, 2015 Email from Benjamin Stern to counsel for the Moving Defendants, ECF No. 82-1. The Moving Defendants refused. Decl. Joshua C. Krumholz, Ex. 7, September 18, 2015 Email from counsel for the Moving Defendants to Benjamin Stern, ECF No. 82-7.
The Moving Defendants jointly filed a reply on October 22, 2015. Def. Dixon, Rife and Nexen's Joint Reply Supp. Respective Mots. Dismiss. (“Joint Reply”), ECF No. 101. The Court held a hearing on the motions to dismiss on October 30, 2015, and took them under advisement. Elec. Clerk's Notes, Oct. 30, 2014, ECF No. 107.
II. ANALYSIS
A. Applicable Law and Standard of Review
Pursuant to the Patent Act, 35 U.S.C. § 271(a), any person who “makes, uses, offers to sell, or sells any patented invention” without authorization within the United States, or imports the same into the United States, infringes that patent. Id. Federal district courts have exclusive original subject matter jurisdiction over “any civil action arising under any Act of Congress relating to patents.” 28 U.S.C. §§ 1331, 1338(a). Personal jurisdiction issues in patent infringement cases are reviewed under Federal Circuit law, as the determination of personal jurisdiction in a patent infringement case involves patent-specific questions and not merely procedural matters. See Silent Drive, Inc. v. Strong Indus., Inc. , 326 F.3d 1194, 1201 (Fed.Cir.2003) (citations omitted).
In an action for patent infringement, “[t]o survive a motion to dismiss for lack of personal jurisdiction in the absence of jurisdictional discovery, plaintiffs need only make a prima facie showing of jurisdiction.” Nuance Commc'ns, Inc. v. Abbyy Software House , 626 F.3d 1222, 1231 (Fed.Cir.2010) (citation omitted). In determining whether a plaintiff has made such a showing, the district court must “construe the pleadings and affidavits in the light most favorable to [the plaintiff].” Graphic Controls Corp. v. Utah Med. Prods., Inc. , 149 F.3d 1382, 1383 n. 1 (Fed.Cir.1998).
Acushnet contends that this Court has jurisdiction over each of the Moving Defendants under the Massachusetts long-arm statute, Mass. Gen. Laws ch. 223A, § 3. Pl's Opp'n re Nexen 10; Pl's Opp'n re Dixon 6-7; Pl's Opp'n re Rife 8. Additionally, as to Nexen only, Acushnet argues that jurisdiction is proper pursuant to Federal Rule of Civil Procedure 4(k)(2). Pl's Opp'n re Nexen 10.
B. Jurisdiction Pursuant to the Massachusetts Long-Arm Statute
“Personal jurisdiction over an out-of-state defendant is appropriate if the relevant state's long-arm statute permits the assertion of jurisdiction without violating federal due process.” 3D Sys., Inc. v. Aarotech Labs., Inc. , 160 F.3d 1373, 1376–77 (Fed.Cir.1998). The Massachusetts long-arm statute permits “an assertion of jurisdiction over [an out-of-state defendant] to the limits allowed by the Constitution of the United States.” “Automatic” Sprinkler Corp. of Am. v. Seneca Foods Corp. , 361 Mass. 441, 443, 280 N.E.2d 423 (1972). Accordingly, the Court need only analyze the Due Process component.
Personal jurisdiction may take the form of either general or specific jurisdiction. Trintec Indus., Inc. v. Pedre Promotional Products, Inc. , 395 F.3d 1275, 1279 (Fed.Cir.2005). As Acushnet does not argue that this Court has general jurisdiction over the Moving Defendants, this memorandum focuses on whether there exists specific jurisdiction. The Federal Circuit applies a three-prong test in patent cases to determine whether a district court may exercise specific jurisdiction over an out-of-state defendant consistent with the federal Due Process Clause: “(1) whether the defendant purposefully directed its activities at residents of the forum, (2) whether the claim arises out of or relates to those activities, and (3) whether assertion of personal jurisdiction is reasonable and fair.” 3D Sys. , 160 F.3d at 1378 (citing Akro Corp. v. Luker , 45 F.3d 1541, 1545–1546 (Fed.Cir.1995) ).
General jurisdiction exists where the defendant's actions or the particular circumstances are such that “it is proper to infer an intention to benefit from and thus an intention to submit to the laws of the forum state.” J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 131 S.Ct. 2780, 2787, 180 L.Ed.2d 765 (2011). When a court has general jurisdiction over a defendant, it may adjudicate “both matters that originate within the [s]tate and those based on activities and events elsewhere.” Id. (citation omitted). By contrast, specific jurisdiction is “a more limited form of submission to a [s]tate's authority for disputes that ‘arise out of or are connected with the activities within the state.’ ” Id. (quoting Int'l Shoe Co. v. State of Wash., Office of Unemployment Compensation and Placement, 326 U.S. 310, 319, 66 S.Ct. 154, 90 L.Ed. 95 (1945) ).
1. Purposeful Availment
Personal jurisdiction over an out-of-state defendant is proper only if “the defendant purposefully avail[ed] itself of the privilege of conducting activities within the forum, thus invoking the benefits and protections of its laws.” Synthes (U.S.A.) v. G.M. Dos Reis Jr. Ind. Com de Equip. Medico , 563 F.3d 1285, 1296–97 (Fed.Cir.2009) (quoting Hanson v. Denckla , 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958) ) (internal alterations omitted). Such requirement guarantees that a defendant is only compelled to litigate in foreseeable forums and prevents it from “be[ing] haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts.” Burger King Corp. v. Rudzewicz , 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (internal quotation marks and citations omitted).
Here, Acushnet argues that each of the Moving Defendants has purposefully availed itself of the laws and protections of Massachusetts by (among other things) operating interactive websites accessible in Massachusetts, selling its products to Massachusetts consumers, and placing its products in the stream of commerce with the knowledge that such products would likely end up in Massachusetts. See generally Pl's Opp'n re Nexen; Pl's Opp'n re Dixon; Pl's Opp'n re Rife. While the Court finds only some of these arguments persuasive, it concludes that the purposeful availment requirement is met as to each of the Moving Defendants.
The arguments surrounding the exercise of personal jurisdiction over the Moving Defendants in this case largely turn on this Court's interpretation of the Defendants' online presence and conduct. The Supreme Court has yet to rule definitively on the nature and degree of online activities sufficient to render the exercise of personal jurisdiction over an out-of-state defendant constitutionally permissible. Nonetheless, courts at the district and circuit level have reasoned that, in evaluating whether a defendant's online activity provides a basis for personal jurisdiction, “the likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet.” Zippo Mfg. Co. v. Zippo Dot Com, Inc. , 952 F.Supp. 1119, 1124 (W.D.Pa.1997) ; see also Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 418–19 (9th Cir.1997).
See Annie Soo Yeon Ahn, Note, Clarifying the Standards for Personal Jurisdiction in Light of Growing Transactions on the Internet: The Zippo Test and Pleading of Personal Jurisdiction, 99 Minn. L. Rev. 2325, 2326 (2015) (“Currently, despite the vast and attractive Internet market, the Supreme Court has not ruled definitively [ ] which test should govern personal jurisdiction ... in cases involving transactions on the Internet.”) (citing Walden v. Fiore, ––– U.S. ––––, 134 S.Ct. 1115, 1125 n.9, 188 L.Ed.2d 12 (2014) (“We leave questions about virtual contacts for another day”)).
a. Transactional Websites
On one end of the spectrum of online commercial activity are transactional websites—that is, websites that invite users to “enter into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet[.]” Zippo , 952 F.Supp. at 1124. As these websites allow a defendant to directly conduct business with residents of the forum state, operation of such a site is generally sufficient to show purposeful availment, see id. at least where there is evidence that the site was actually used to do business with a party residing in the forum state, see Trintec , 395 F.3d at 1282 (finding D.C. District Court's exercise of personal jurisdiction improper where plaintiff failed to establish that “any District residents have ever actually used [the defendant's] website to transact business”).
Dixon and Rife both operate transactional websites on which the allegedly infringing products were available for sale. See Decl. Krumholz, Ex. 17, ECF No. 82-17; Decl. Krumholz, Ex. 26, ECF No. 82-26. In the case of Dixon, Acushnet's own purchase of the allegedly infringing golf balls from Dixon's website, Decl. Nathan Zieske Supp. Pl. Acushnet Co.'s Opp. Mots. Dismiss, Ex. A, ECF No. 81-1, is evidence that Dixon purposefully availed itself of the privilege of doing business in Massachusetts by transacting with purchasers in Massachusetts directly through its website. As for Rife, however, Acushnet failed to show that any Massachusetts customers actually engaged in transactions on Rife's website. Accordingly, the Court cannot conclude on the basis of Rife's website alone that Rife purposefully availed itself of the laws and protections of the Commonwealth.
Dixon's argument that the Court should not account for Acushnet's own purchase in evaluating personal jurisdiction fails here since, as Acushnet points out, “Acushnet purchased the Dixon Fire for testing and analysis as part of its usual business practice, and not with the intent of creating jurisdiction.” Pl's Opp'n re Dixon; see also infra.
b. Interactive Websites
A middle category of online commercial activity is made up of “interactive” websites, which allow “a user [to] exchange information with the host computer.” Zippo , 952 F.Supp. at 1124. These types of websites are not merely “passive[,]” id. and indeed may facilitate subsequent transactions with the defendant business, but no sales are actually consummated through these sites. The maintenance of such an interactive website may or may not suffice to establish purposeful availment, depending on “the level of interactivity and commercial nature of the exchange of information that occurs on the website.” Id. ; cf. Trintec , 395 F.3d at 1281 (establishing the existence of “interactive features aimed at transacting business” on the defendant's website is insufficient where “it is unclear how frequently those features are utilized”).
Acushnet argues that each of the Moving Defendants operates at least one website with interactive features sufficient to render personal jurisdiction in this Court proper. See Pl.'s Opp'n re Nexen 11; Pl's Opp'n re Dixon 8-9; Pl.'s Opp'n re Rife 9-10. Having already concluded that Dixon satisfied the purposeful availment requirement by selling the allegedly infringing products through its website to at least one Massachusetts purchaser, this Court need only address the arguments with respect to Nexen and Rife.
Acushnet argues that Nexen's websites are “dynamic” in so far as they “provide contact information for would-be customers.” Pl.'s Opp'n re Nexen 11. For example, nexencorp.co.kr includes a “Golf Ball” product page which features a link to an “e-catalog.” Decl. Krumholz, Exs. 52-53, ECF Nos. 82-52, 82-53. Another Nexen site, saintnine.co.kr, includes a “Company” page with a “Contact” tab that lists the contact information for a sales department. Decl. Krumholz, Exs. 54, ECF No. 82-54. Neither of these websites invites an exchange of information, however; on the contrary, these are properly characterized as “passive” websites, as they “do[ ] little more than make information available to those who are interested in it[.]” Zippo , 952 F.Supp. at 1124.
Nexen's only arguably “interactive” website is nexentireusa.com, which features a “Dealer Locator” page on which users may search for Nexen retailers by zip code. See Decl. Krumholz, Exs. 55-56, ECF Nos. 82-55, 82-56. This website bears no connection to the allegedly infringing conduct, however, and therefore cannot serve as the basis for specific jurisdiction in this case. See infra part II(B)(2).
Acushnet also fails to show that Rife purposefully availed itself of the laws and protections of the Commonwealth of Massachusetts by operating an interactive website. Although Rife's website includes a search tool that allows users to look up sales representatives and store locations (including in Massachusetts), Decl. Krumholz, Ex. 27, ECF No. 82-27, Acushnet did not supply any information regarding whether and how often this tool is actually used by Massachusetts customers. See Trintec , 395 F.3d at 1281.
c. Doing Business Through Third Parties
Purposeful availment may also be inferred from the utilization of a third-party website, such as when a third-party website makes a defendant's products available for sale, advertises a defendant's products, or directs online traffic to a defendant's website. See Trintec , 395 F.3d at 1281. Under these circumstances, however, personal jurisdiction is proper only if the defendant has exercised some level of “control” over the contents of the third-party site, id. or alternatively if, by virtue of the third-party site, the defendant has “deliver[ed] its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum [s]tate.” World–Wide Volkswagen Corp. v. Woodson , 444 U.S. 286, 298, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). As to the latter theory, a plaintiff must establish that the defendant undertook some purposeful course of conduct that would reasonably result in its products winding up in the forum state, such as delivering its products to that state “through an established distribution channel[.]” Beverly Hills Fan Co. v. Royal Sovereign Corp. , 21 F.3d 1558, 1565 (Fed.Cir.1994).
Acushnet argues that Nexen meets the purposeful availment requirement under these alternative theories because it made information about its allegedly infringing products available on an online “storefront” hosted by third-party ec21.com, Pl's Opp'n re Nexen 4-5, and further because it deliberately sold its products to Massachusetts purchasers online through an “authorized dealer,” namely golfballs.com, id. at 13. This Court is persuaded by Acushnet's argument that Nexen “established a nationwide channel of distribution in the United States, including Massachusetts” by making its allegedly infringing products available for sale on golfballs.com, an “authorized dealer” of Nexen products. Pl's Opp'n re Nexen 13. Taking as true Acushnet's allegation that golfballs.com is an “authorized dealer” of Nexen's allegedly infringing golf balls to consumers across the United States, including Massachusetts, and considering Acushnet's claim that it purchased Nexen products in Massachusetts, see Decl. Zieske ¶ 15, there are sufficient grounds on which to conclude that Nexen purposefully availed itself of the privilege of doing business in Massachusetts. See Hilsinger Co. v. FBW Investments , No. 14–14715, 109 F.Supp.3d 409, 429, 2015 WL 3764604, at *15 (D.Mass. June 17, 2015) (Saylor, J.) (finding defendant's maintenance of a partly interactive website was sufficient to satisfy purposeful availment prong “in light of [defendant's] sales into Massachusetts through national retailers,” among other factors).
Nexen argues that Acushnet's own purchase of the products at issue was an attempt to “manufactur[e]” jurisdiction and thus does not support the exercise of personal jurisdiction. Joint Reply 7. Nexen is correct that a plaintiff's own purchase of a defendant's product “for the sole purpose of providing a basis for personal jurisdiction” has been held by other courts to be insufficient. Ricoh Co., Ltd. v. Asustek Computer, Inc., 481 F.Supp.2d 954, 959 (W.D.Wise.2007) (noting that “such a forced and artificial exercise cannot provide the basis for personal jurisdiction”); see also Millennium Enters., Inc. v. Millennium Music, LP, 33 F.Supp.2d 907, 911 (D.Or.1999) (sale of defendant's product to an acquaintance of plaintiff's counsel, at counsel's direction in order “to manufacturer a contact with th[e] forum sufficient to establish personal jurisdiction” did not constitute purposeful availment). Here, though, it cannot be said that Acushnet purchased the product at issue solely to ensure that this Court could exercise personal jurisdiction over Nexen. On the contrary, Acushnet has a routine of buying golf balls on the open market for competitive and intellectual property analysis and had purchased Nexen's allegedly infringing product on several occasions before bringing suit against Nexen. Decl. Zieske ¶¶ 4, 7, 15.
Because this Court concludes that Acushnet has made a prima facie showing that Nexen purposefully availed itself of the laws of Massachusetts under the stream-of-commerce theory, we need not address the question whether Nexen exerted the requisite control over the ec21.com website. Nonetheless, we note that although Nexen apparently acquired a “membership” in the ec.21.com website on November 05, 2008, Acushnet's own exhibits indicate that such membership remained “unverified.” Decl. Krumholz, Ex. 62, ECF No. 82-62.
As for Rife, Acushnet failed to show that Rife exercised control over the contents of the third-party websites on which its allegedly infringing products were listed for sale, but successfully established that Rife purposefully availed itself of the privilege of doing business in Massachusetts under the stream-of-commerce theory. Rife claims that it neither formed contractual relationships with “brick and mortar” retailers in Massachusetts nor sold the product at issue to such a retailer, Decl. Zylstra I ¶¶ 5-9, but its own website contradicts these assertions, as it shows a number of dealers or retailers (described as “carr[ying] Rife Products”) located in Massachusetts, Decl. Krumholz, Ex. 27.
That Acushnet did not establish that Rife made a sale to a Massachusetts customer through one of these outlets does not defeat purposeful availment under the stream-of-commerce theory. Although the court in Trintec apparently required an actual sale in the forum state, 395 F.3d at 1282, the claimed distribution channel was a website which was accessible generally to the public, id. at 1281, rather than a retailer that particularly targeted residents of the forum state. In Rife's case, the dealers and retailers which constitute the distribution channel are actually located in Massachusetts. Acushnet has thus established that Rife has purposefully availed itself of the privilege of doing business in Massachusetts under the stream of commerce theory by relying on the existence of “brick-and-mortar” dealer and retailer stores located in Massachusetts, the identity of which are recognized on Rife's own webpage.
2. Connection to Challenged Conduct
In addition to showing that the out-of-state defendants had contacts with Massachusetts sufficient to amount to purposeful availment of this state's laws and protections, Acushnet must show that its claims here arise out of those contacts. See 3D Sys. , 160 F.3d at 1378. Here, this requirement is met in the case of each of the Moving Defendants. Specifically, the Moving Defendants' contacts with Massachusetts involve activities relating to the sale of the allegedly infringing products, whether through the Defendants' own websites (Dixon) or by placing them in the stream of commerce (Nexen and Rife). 3. Fairness
The final element of the constitutional due process test for specific jurisdiction asks whether the exercise of jurisdiction would violate “fair play and substantial justice”. See LSI Indus. Inc. v. Hubbell Lighting, Inc. , 232 F.3d 1369, 1375 (Fed.Cir.2000). The relevant inquiry involves the consideration of five factors:
(1) the burden on the defendant, (2) the interests of the forum state, (3) the plaintiff's interest in obtaining relief, (4) the interstate judicial system's interest in obtaining the most efficient resolution of controversies, and (5) the shared interest of the several states in furthering fundamental substantive social policies.
Elecs. For Imaging, Inc. v. Coyle , 340 F.3d 1344, 1352 (Fed.Cir.2003) (citation omitted); see also World–Wide Volkswagen , 444 U.S. at 292, 100 S.Ct. 580. The defendant bears the burden of proof on this question. 3D Sys., Inc. , 160 F.3d at 1379 (observing that “the burden [is] on the party over whom jurisdiction is sought to prove that jurisdiction would be constitutionally unreasonable.”); Burger King , 471 U.S. at 476, 105 S.Ct. 2174 (noting that it is “presumptively not unreasonable” to compel a defendant to litigate in a forum once it has been established that the defendant purposefully availed itself of the laws of that forum state).
None of the Moving Defendants here has advanced a convincing argument as to why it would be unconstitutionally unfair to subject it to jurisdiction in this forum, notwithstanding its contacts with Massachusetts. Accordingly, this Court concludes that it may exercise personal jurisdiction over the Moving Defendants consistent with the fairness requirement of the Due Process Clause.
Indeed, each Defendant apparently argues only that the exercise of general jurisdiction would be unfair under these circumstances. See Def. Nexen Corp.'s Mem. Supp. Mot. Dismiss Lack Personal Juris. 5-6, ECF No. 51; Def. Dixon Golf's Mem. Supp. Mot. Dismiss Lack Personal Juris. 6, ECF No. 55; Def. Rife Golf's Mem. Supp. Mot. Dismiss Lack Personal Juris. 5-6, ECF No. 53.
B. Jurisdiction Pursuant to Rule 4(k)(2)
As to Nexen only, Acushnet separately argued that this Court may exercise jurisdiction under Federal Rule of Civil Procedure (“Rule”) 4(k)(2). Pl's Opp'n re Nexen 10. Rule 4(k)(2), the so-called “federal long-arm statute[,]” Synthes , 563 F.3d at 1296, allows a district court to exercise personal jurisdiction over a foreign defendant when: “(1) the plaintiff's claim arises under federal law, (2) the defendant is not subject to personal jurisdiction in any state's courts of general jurisdiction, and (3) the exercise of jurisdiction comports with due process.” Id. at 1293–94 (citing Fed. R. Civ. P. 4(k)(2) ). This rule serves to ensure that a foreign defendant who has substantial contacts with the United States as a whole, but insufficient contacts with any one state, cannot “escape jurisdiction.” Touchcom, Inc. v. Bereskin & Parr , 574 F.3d 1403, 1414 (Fed.Cir.2009) ( “Rule 4(k)(2) was adopted to ensure that federal claims will have a U.S. forum if sufficient national contacts exist”). As the Court has already concluded that the Moving Defendants had sufficient contacts with Massachusetts to give rise to jurisdiction under the Massachusetts long-arm statute, Rule 4(k)(2) is inapposite here.
III. CONCLUSION
For the reasons set forth above, the Court DENIED the Moving Defendants' motions to dismiss for lack of personal jurisdiction. ECF No. 50, ECF No. 52, and ECF No. 54.