Russolillo

MEMORANDUM

We review de novo 1 the dismissal under Fed.R.Civ.P. 12(b)(2) of Tosvar Aerosol and its owner, Paolo Gioia, from Sebastian International’s lawsuit.

We apply this standard on appeal.

Sebastian did not meet its burden 3 of making “a prima facie showing of facts supporting jurisdiction.” 4 Sebastian’s allegations and declarations do not reasonably support the inference that Tosvar knew or reasonably should have known the counterfeits would be shipped to California. Tosvar filled cans in Italy manufactured by an Italian company, for an Italian company, and delivered the filled cans to an Italian transportation company for transport to an Italian port. The cryptic reference to “Miami” on the Italian transportation company’s (not Sebastian’s) shipping documents and to “the Americans” in the fax, the still more cryptic BATF license number on the cans, and the presence of Sebastian’s California address and a “Made in the U.S.A.” label on the cans do not adequately support the inference of knowledge that the cans would be sold into the California market. Because Sebastian has not established, even under a permissive standard, that Tosvar knew that the cans were shipped to the…

concurring in part and dissenting in part:

I concur, of course, in the stay pertaining to Nortex while bankruptcy proceedings áre pending, and I agree with the majority on the discovery ruling. However, I respectfully dissent with respect to personal jurisdiction over Tosvar.

Taking all inferences in the plaintiffs favor, as we must, Tosvar knew it was part of a counterfeiting conspiracy whose actions necessarily had a significant effect in California.

1. A reasonable inference from the FAX from Dollars Spray is that the counterfeit products were headed for the United States: “ ‘The Americans’ will leave on Thursday, 30 September 1999.”

Sebastian concedes that its appeal against Nortex Drug Distributors is stayed by that defendant’s bankruptcy filing in the Northern District of Texas. 7 Although Nortex has not informed this Court of its bankruptcy filing, the “stay is self-executing, effective upon the filing of the bankruptcy petition.”

2. Counterfeit cans were marked, falsely, “Made in the USA” and marked with Sebastian’s Woodland Hills, California, address.

3. The products intentionally were shipped to and distributed throughout the United States, including California,…