OPINION OF THE COURT
FISHER, Circuit Judge.
This appeal involves a dispute as to whether the District Court of the Virgin Islands erred in dismissing the plaintiffs' complaint for lack of personal jurisdiction after determining that the Virgin Islands Long-Arm Statute did not reach the defendant and that constitutional due process was not satisfied. Because the District Court failed to construe disputed facts in favor of the plaintiffs, as it was required to do at the motion to dismiss stage, we conclude that it erred in ruling that the plaintiffs were unable to demonstrate a prima facie case in support of the exercise of personal jurisdiction over the defendant. Therefore, we will reverse and remand to the District Court with instructions that it allow the plaintiffs an opportunity to conduct jurisdictional discovery.
A. Factual History
Richard and Cynthia Metcalfe are residents of the United States Virgin Islands. In April 2006, the Metcalfes purchased a Renaissance Prowler 246 powerboat, two
Beyond the aforementioned facts, the parties offer materially different versions of the events that led to this current lawsuit. The Metcalfes allege that they became familiar with Renaissance boats by renting them from See & Ski, a powerboat rental company located on St. Thomas. They aver that See & Ski has at least four boats in its rental fleet that it purchased from Renaissance within a period of six years. Additionally, they contend that Renaissance advertises on its website that its boats can be rented from See & Ski in the Virgin Islands. According to the Metcalfes, Renaissance has sold at least seven boats to Virgin Islands residents in the past few years. The Metcalfes state that while they were in St. John, they negotiated the sale of the Prowler 246 with Renaissance by telephone, fax, and the internet. They assert that Renaissance was fully aware that the ultimate destination of the Prowler 246 was the Virgin Islands and that Renaissance shrink-wrapped the boat for shipping and took it to the shipper for the Metcalfes.
In contrast, Renaissance contends that the Metcalfes traveled to Miami where they purchased the Prowler 246. Renaissance also states that all of its sales, including this one, are governed by a ten-year limited warranty and a purchase agreement with additional terms and conditions. Renaissance specifically notes that the warranty contains a forum selection clause which provides that the interpretation and enforcement of the warranty is governed by Florida law and that any action shall be brought in Miami-Dade County.
Concerning the warranty, the Metcalfes assert that Renaissance contacted them in the Virgin Islands one month after they received delivery of the Prowler 246 in an effort to have them sign the warranty, which they refused to do. The Metcalfes state that the warranty was never presented to them until after the sale was complete and that one reason why they did not sign it is because they did not agree with the forum selection clause.
On December 25, 2006, the Metcalfes discovered that the Prowler 246 had partially sunk. They had a marine surveyor assess the defects in the Prowler 246 and the likely cause of the sinking. The Metcalfes shared the findings in the surveyor's report with Renaissance, and although the company initially proposed to cure the problems with the Prowler 246 in the Virgin Islands and subsequently offered to transport it to Florida to make the necessary repairs, no remedy was ultimately provided.
B. Procedural History
On October 15, 2007, the Metcalfes brought suit in the District Court of the Virgin Islands alleging breach of express warranty, breach of implied warranties, breach of the covenant of good faith and fair dealing, misrepresentation, and liability under the Magnuson-Moss Warranty— Federal Trade Commission Improvement
Notwithstanding the District Court's order, on January 9, 2008, the Metcalfes filed an opposition to Renaissance's motion to dismiss and also filed a motion for reconsideration arguing that the order should be vacated to correct clear error and prevent manifest injustice. Renaissance subsequently filed a reply to the opposition to the motion to dismiss and an opposition to the motion to reconsider. Renaissance also filed a motion to supplement its original motion to dismiss.
In an effort to prevent further overlapping and conflicting pleadings, the District Court held a status conference on February 6, 2008. The District Court determined that it would consider the Metcalfes' opposition to Renaissance's motion to dismiss because, despite the oversight by the Metcalfes' counsel, ignoring their opposition would prejudice them. Thus, the District Court decided to reopen the case to determine whether dismissal of the complaint was appropriate; however, the District Court concluded that it would not consider any filings submitted after the status conference and instead would rule directly on the motion to dismiss, giving consideration to the Metcalfes' opposition to the motion.
Following the status conference, the Metcalfes and Renaissance nonetheless both continued to submit filings to the District Court. Specifically, the Metcalfes filed a reply to Renaissance's opposition to the motion for reconsideration and a document entitled a "Notice of Filing of Supplemental Declaration of Richard Metcalfe with Previously Omitted Exhibits." Renaissance filed a motion to amend its opposition to the motion for reconsideration.
On February 15, 2008, the District Court ruled on Renaissance's motion to dismiss, and indicated in a footnote in its memorandum opinion that it did not consider these additional filings. The District Court determined that the Metcalfes failed to meet their burden of showing that jurisdiction over Renaissance was appropriate under the Virgin Islands Long-Arm Statute and, even if the statute was somehow satisfied, failed to show that the exercise of jurisdiction over Renaissance would comport with constitutional due process. Because the District Court concluded that it did not have personal jurisdiction over Renaissance, it did not reach the other grounds for dismissal that Renaissance asserted in its motion. The Metcalfes filed a timely notice of appeal.
As an initial matter, Renaissance argues that the District Court lacks subject matter jurisdiction over this entire
We have jurisdiction over this appeal from the District Court's final order pursuant to 28 U.S.C. § 1291. "Whether personal jurisdiction may be exercised over an out-of-state defendant is a question of law," Mellon Bank (East) PSFS, N.A. v. Di Veronica Bros., Inc., 983 F.2d 551, 554 (3d Cir.1993), and therefore we will exercise plenary review over the District Court's determination that it lacked personal jurisdiction in the present case. See Pinker v. Roche Holdings Ltd., 292 F.3d 361, 368 (3d Cir.2002).
The central issue in this appeal is whether the District Court erred when it determined that it could not exercise personal jurisdiction over Renaissance, a nonresident defendant. However, Renaissance argues that we need not reach this issue because the Metcalfes are contractually prohibited from bringing their claims in any jurisdiction other than Florida as a result of a valid, binding forum selection clause contained in its warranty. The problem with this argument is that Renaissance failed to establish that the Metcalfes ever agreed to this warranty. The Metcalfes claim that Renaissance contacted them one month after they received delivery of the Prowler 246 and, at that point in time, solicited their signature in order to execute the warranty. Although Renaissance attached a copy of the warranty to an affidavit, it does not bear the signature of either Richard or Cynthia Metcalfe and Renaissance makes no attempt to explain why a signature is not present. Consequently, it appears that the warranty was not incorporated into the sales contract but was a separate agreement to which the Metcalfes did not assent.
We recognize that some tension exists between the Metcalfes' assertion that they were not bound by the warranty because they never signed it and allegations in their complaint with respect to "Renaissance's product support, service and warranty programs," but, in light of the current posture of this case, it is best for the District Court to resolve the factual dispute as to whether the warranty applied to the sale between Renaissance and the Metcalfes. The District Court did not address this issue at the time it granted the motion to dismiss, and therefore we will not reach it either. Instead, we will focus our analysis on the question of whether
A. Assessing a Motion to Dismiss for Lack of Personal Jurisdiction
A district court sitting in diversity may assert personal jurisdiction over a nonresident defendant to the extent allowed under the law of the forum state. See, e.g., Time Share Vacation Club v. Atl. Resorts, Ltd., 735 F.2d 61, 63 (3d Cir. 1984). Establishing personal jurisdiction in the Virgin Islands involves a two-part analysis.
"[T]he burden of demonstrating the facts that establish personal jurisdiction," falls on the plaintiff, Pinker, 292 F.3d at 368, and "once a defendant has raised a jurisdictional defense," the plaintiff must "prov[e] by affidavits or other competent evidence that jurisdiction is proper." Dayhoff Inc. v. H.J. Heinz Co., 86 F.3d 1287, 1302 (3d Cir.1996). If the district court does not hold an evidentiary hearing, "the plaintiff[s] need only establish a prima facie case of personal jurisdiction." O'Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 316 (3d Cir.2007) (alterations in original) (internal quotation marks omitted). Moreover, "[i]t is well established that in deciding a motion to dismiss for lack of jurisdiction, a court is required to accept the plaintiff's allegations as true, and is to construe disputed facts in favor of the plaintiff." Toys "R" Us, Inc. v. Step Two, S.A., 318 F.3d 446, 457 (3d Cir.2003); accord O'Connor, 496 F.3d at 316 (explaining that prior to an evidentiary hearing or trial, "the plaintiff[s][are] entitled to have [their] allegations taken as true and all factual disputes drawn in [their] favor" (alterations in original) (internal quotation
Here, the Metcalfes did not merely rest on their pleadings but rather submitted a sworn affidavit and other documentary evidence in support of a finding of personal jurisdiction over Renaissance. Nonetheless, without holding an evidentiary hearing, the District Court discredited this evidence when it stated:
The District Court also construed disputed facts against the Metcalfes, which is reflected in the following statement:
These excerpts demonstrate that the District Court did not apply the proper standard for evaluating the motion to dismiss for lack of personal jurisdiction. Although the Metcalfes needed to make a threshold showing in support of jurisdiction, they were entitled to have their allegations viewed as true and have disputed facts construed in their favor. See O'Connor, 496 F.3d at 316; Toys "R" Us, 318 F.3d at 457. Instead, the District Court credited Renaissance's factual allegations and construed disputed facts in its favor, as if Renaissance were the nonmoving party. In doing so, the District Court committed error by failing to apply the correct standard for evaluating personal jurisdiction at this stage of the litigation.
Our task, therefore, is to determine whether the Metcalfes have established a prima facie case that the exercise of jurisdiction over Renaissance is consistent with the Virgin Islands Long-Arm Statute and constitutional due process, assuming the sworn allegations that appear in the Metcalfes' affidavit and the other documentary evidence on record are true and construing factual disputes in their favor.
B. Interpreting the Virgin Islands Long-Arm Statute
Turning to the statutory bases for exercising jurisdiction over a nonresident defendant, the Metcalfes argue that subsection (a)(1) and subsection (a)(2) of the Virgin Islands Long-Arm Statute apply to the facts of this case. The relevant portions of the statute state:
V.I.Code Ann. tit. 5, § 4903(a).
"Under subsection (a)(1), the term `transacting any business' can be satisfied by only a single act which in fact amounts to the transaction of business within the state or territory." Fin. Trust Co. v. Citigroup,
The District Court concluded that subsection (a)(1) could not be applied to reach Renaissance, finding it significant that the Metcalfes did "not claim that they signed the contract in the Virgin Islands, that Renaissance delivered the [Prowler 246] to them in the Virgin Islands, or that Renaissance performed any part of the contract in the Virgin Islands." However, the District Court's exclusive focus on the contract was misplaced because the proper focus of the subsection (a)(1) analysis should be on whether Renaissance engaged in any act that might constitute "transacting business" in the Virgin Islands.
The evidence submitted by the Metcalfes, if true, supports the application of subsection (a)(1). In particular, the Metcalfes assert that Renaissance exchanged phone calls, faxes, and emails with the Metcalfes while they were in the Virgin Islands during the process of negotiating the sale of the Prowler 246. In a footnote, the District Court dismissed the evidence regarding these negotiations as "too sparse ... to make any determination about their substantiality." However, under Virgin Islands law, "a single act which in fact amounts to the transaction of business" satisfies subsection (a)(1). Fin. Trust Co., 268 F.Supp.2d at 567 (internal quotation marks omitted). Because one single act can constitute "transacting business," surely repeated, reciprocal communications between a buyer in the Virgin Islands and a seller located elsewhere which culminate in an agreement for the sale of an item at a cost of nearly $85,000 also satisfies the standard under subsection (a)(1). Therefore, accepting the Metcalfes' evidence as true and construing disputed facts in their favor, we conclude that they have met their burden, at this stage, of establishing that subsection (a)(1) applies by showing that Renaissance transacted business in the Virgin Islands and that their claims arise out of this transaction.
In the alternative, subsection (a)(2) may provide an even stronger statutory basis for exercising long-arm jurisdiction over Renaissance. The only requirement of subsection (a)(2) "is that the contract be performed, at least in part, in the Virgin Islands and that the cause of action arise out of the contract." Buccaneer Hotel Corp. v. Reliance Int'l Sales Corp., 17 V.I. 249, 255 (Terr.Ct.1981). When a defendant is aware that the Virgin Islands is the ultimate destination of the goods it is supplying, the contract is said to be performed (at least in part) in the Virgin Islands. See id. at 256 (concluding, in an action brought by a resident buyer against a nonresident seller, that subsection (a)(2) reached the nonresident defendant because "the defendant made the arrangements for shipment and knew the goods were being shipped directly to [the] plaintiff in the Virgin Islands. There is no question that the contract was performed, at least in part, in
In an affidavit, Richard Metcalfe stated: "When purchasing the [Prowler 246], I informed Renaissance that it would be kept in the Virgin Islands, so Renaissance was fully aware that the ultimate destination of the [Prowler 246] was the Virgin Islands. Renaissance even wrapped the [Prowler 246] for shipping and took it to the shipper." However, the District Court determined that this declaration was not competent evidence and therefore could not be relied on to find that subsection (a)(2) applied. The District Court stated:
Contrary to what the District Court stated, it was not the Metcalfes' burden to resolve factual disputes at this phase of the litigation. As previously discussed, although the Metcalfes had the burden of making a prima facie showing that jurisdiction was proper, they were entitled to have their allegations viewed as true and have disputed facts construed in their favor.
Accepting the Metcalfes' evidence as true and construing disputed facts in their favor, we conclude that Renaissance was aware that the ultimate destination of the Prowler 246 was the Virgin Islands and therefore the contract was performed, at least in part, in the Virgin Islands. See Buccaneer, 17 V.I. at 255-56. Because this action arises out of the contract for the sale of the Prowler 246, the Metcalfes have met their burden at this stage of the litigation of showing that subsection (a)(2) applies. Thus, when we consider the evidence set forth by the Metcalfes under the proper standard for evaluating a motion to dismiss for lack of personal jurisdiction, we conclude that both subsection (a)(1) and subsection (a)(2) provide a statutory basis for exercising long-arm jurisdiction over Renaissance.
C. Satisfying Constitutional Due Process Through Minimum Contacts
In addition to demonstrating the applicability of the Virgin Islands Long-Arm Statute, the Metcalfes also must show that the exercise of personal jurisdiction over Renaissance satisfies constitutional due process. The due process inquiry involves an assessment as to "whether `the quality and nature of the defendant's activity is such that it is reasonable and fair to require [that it] conduct [its] defense in that state.'" Time Share Vacation Club, 735 F.2d at 63 (alterations in original) (quoting Kulko v. Super. Court of Cal., 436 U.S. 84, 92, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978)). As a threshold matter, the defendant must have taken "action ... purposefully directed toward the forum State." Pinker, 292 F.3d at 370 (quoting Asahi Metal Indus. Co. v. Super. Court of Cal., 480 U.S. 102, 112, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (plurality opinion)). Accordingly, the due process analysis focuses on the nonresident defendant's "minimum contacts" with the forum. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985).
Minimum contacts can be analyzed in the context of general jurisdiction or specific jurisdiction. A court may exercise general jurisdiction over a defendant where he or she has "continuous and systematic" contacts with the forum, whether or not those contacts are related to the plaintiff's cause of action. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); BP Chems. Ltd. v. Formosa Chem. & Fibre Corp., 229 F.3d 254, 259 (3d Cir.2000). Specific jurisdiction exists if the defendant has "`purposefully directed' his activities at residents of the forum and the litigation results from alleged injuries that `arise out of or relate to' those activities." Burger King Corp., 471 U.S. at 472, 105 S.Ct. 2174 (internal citation omitted). "If the defendant `maintain[s] continuous and substantial forum affiliations,' then general jurisdiction exists. If the defendant's contacts fall short of that standard, then at least one contact must give rise or relate to the plaintiff's claim." O'Connor, 496 F.3d at 321 (internal citation omitted). Because general and specific jurisdiction are "analytically distinct categories," id., we consider the facts relevant to each category separately.
The Metcalfes argue that the District Court may exercise either general or specific jurisdiction over Renaissance. The District Court reasoned that "[t]he facts of this case do not support a general jurisdiction analysis" because "the Metcalfes' claims are directly related to Renaissance's sale of a boat to Virgin Islands' residents." While it is true the Metcalfes' claims are directly related to Renaissance's sale of the Prowler 246 to them, general jurisdiction can be exercised regardless of whether the contacts relate to the plaintiff's cause of action and, consequently, persuasive evidence that the Metcalfes introduced of the general business contacts that Renaissance has with the Virgin Islands was overlooked. See Helicopteros, 466 U.S. at 416, 104 S.Ct. 1868; BP Chems. Ltd., 229 F.3d at 259.
Although this evidence, if true, does not signal that Renaissance has an overwhelming presence in the Virgin Islands, it does suggest that Renaissance has maintained the type of "continuous and systematic" contacts needed to find general jurisdiction. See Hendrickson v. Reg O Co., 657 F.2d 9, 15 (3d Cir.1981) ("The fact that the sales and other contacts are not expansive is simply a reflection of the reality that the jurisdiction itself is a small one, and market demands may not be great. The continuing conduct of the defendant is purposeful activity intended to preserve and enlarge an active, though small, market in the Virgin Islands."); Samad v. High Soc'y Magazine, 20 V.I. 554, 557 (D.V.I. 1984) ("To deny jurisdiction over such a defendant merely because its local sales constitute a small percentage of its total sales would be to deny a resident plaintiff the protection of the laws and courts of this Territory merely because the population of this Territory is limited. This the Due Process Clause does not require."). Therefore, in the context of assessing the sufficiency of a nonresident defendant's contacts with a small jurisdiction such as the Virgin Islands, we conclude that, at this stage in the litigation, the Metcalfes have made at least a prima facie showing that general jurisdiction may be exercised over Renaissance.
Because we conclude that the Metcalfes have made this threshold showing, we will not consider whether the facts, when construed in favor of the Metcalfes, also support a finding of specific jurisdiction.
D. Conducting Jurisdictional Discovery
The Metcalfes also contend that the District Court erred by failing to grant
The Supreme Court instructs that "where issues arise as to jurisdiction or venue, discovery is available to ascertain the facts bearing on such issues." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 n. 13, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978). We have explained that if "the plaintiff's claim is not clearly frivolous [as to the basis for personal jurisdiction], the district court should ordinarily allow discovery on jurisdiction in order to aid the plaintiff in discharging that burden." Compagnie Des Bauxites de Guinee v. L'Union Atlantique S.A. D'Assurances, 723 F.2d 357, 362 (3d Cir.1983). Furthermore, we have found jurisdictional discovery particularly appropriate where the defendant is a corporation. See id. In Compagnie, we quoted with approval the reasoning of the Court of Appeals for the First Circuit, which stated:
Id. (quoting Surpitski v. Hughes-Keenan Corp., 362 F.2d 254, 255-56 (1st Cir.1966)).
Based on our analysis of this case, we find that the Metcalfes' claim is certainly not frivolous and we recognize that they are faced with the difficult task of trying to establish personal jurisdiction over a corporation. Accordingly, we conclude that the Metcalfes ought to have the opportunity to conduct jurisdictional discovery before the District Court makes a final determination with respect to whether it may exercise jurisdiction over Renaissance.
The Metcalfes also argue that the District Court erred when it declined to consider any of the documents filed after the status conference. They contend that the District Court should have considered their additional filings and affidavits because these submissions were timely and provided additional evidence that the exercise
We hold that the District Court erred in granting Renaissance's motion to dismiss for lack of personal jurisdiction. When the evidence presented by the Metcalfes is evaluated under the correct standard at this stage of the litigation, we conclude that they are able to make a prima facie showing that the Virgin Islands Long-Arm Statute applies to Renaissance and that the exercise of jurisdiction over Renaissance is consistent with the Due Process Clause. Therefore, we will reverse and remand to the District Court to allow the Metcalfes to conduct jurisdictional discovery before the District Court conclusively decides whether exercising jurisdiction over Renaissance is permissible.
STAPLETON, Circuit Judge, dissenting:
I agree with my colleagues that the District Court possessed subject matter jurisdiction and that, given the absence of an evidentiary hearing, it erred in failing to accept as true the facts alleged by the Metcalfes. In my view, however, even accepting those facts, the District Court's conclusion that it lacked personal jurisdiction was correct.
A district court sitting in diversity applies the law of the forum state in determining whether personal jurisdiction is proper. Fed.R.Civ.P. 4(c). The reach of the long arm statute of the Virgin Islands was intended by its legislature to be coextensive with the maximum parameters of the Due Process Clause. Urgent v. Tech. Assistance Bureau, 255 F.Supp.2d 532 (D.V.I.2003). We therefore look to federal Due Process law to determine Renaissance's susceptibility to personal jurisdiction in the Virgin Islands. Vetrotex Certainteed Corp. v. Consol. Fiber Glass Prods. Co., 75 F.3d 147 (3d Cir.1996). We summarized that law in Vetrotex, 75 F.3d at 150-51:
My analysis begins with an indisputable proposition. In applying these principles, it "is well established ... that a nonresident's contracting with a forum resident, without more, is insufficient to establish the `minimum contacts' required for an exercise of personal jurisdiction over the nonresident." Sunbelt Corp. v. Noble, Denton & Assoc., Inc., 5 F.3d 28, 32 (3d Cir.1993) (emphasis supplied). See also Vetrotex, 75 F.3d at 151.
It is also important in the current context to stress at the outset that it is the defendant who must be shown to have engaged in some affirmative act by which he "purposefully avails [himself] of the privilege of conducting activities in the forum state, thus invoking the benefit and protection of its laws." Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). As the Supreme Court explained in Hanson, 357 U.S. at 253, 78 S.Ct. 1228 (emphasis supplied):
The facts usually found to constitute "the more" necessary to subject a nonresident who contracted with a forum resident to the jurisdiction of the forum court are notably absent here. Renaissance is not alleged to have ever had an office, employee or other representative in the Virgin Islands for any purpose. Nor is it alleged to have engaged in sales to distributors or other third parties who sell Renaissance vessels in the Virgin Islands. Further, it is not alleged to have advertised its vessels in the Virgin Islands media or to have in any other way solicited from the Metcalfes or anyone else in the Virgin Islands an offer to purchase a vessel. Finally, Renaissance is not alleged to have shipped any product into the Virgin Islands for sale or, indeed, for any other purpose. The most that is alleged is that it "shrink wrapped" a vessel in its home state of Florida and delivered it to the Metcalfes' shipper at a port in Florida.
As a substitute for the customary allegations, the Metcalfes insist that they have made five allegations that must be accepted as true and that provide the required "more" than the existence of a contract with a forum resident. I am unpersuaded.
The Metcalfes' first and primary argument is based on their allegation that, while Renaissance did not ship the vessel into the Virgin Islands, it "was fully aware that the ultimate destination of the Vessel was the Virgin Islands." App. at 86. The only relevant issue, however, is what Renaissance
Second, the Metcalfes rely upon their allegation that they first became familiar with the type of vessel they ultimately bought when they rented one in the Virgin Islands from See & Ski, a boat rental firm. They do not claim any relationship between Renaissance and See & Ski, however, other than that the latter from time to time purchases vessels from the former for use in the latter's rental business. The leasing by a Virgin Islands boat rental firm of a Renaissance built vessel owned by the rental firm can hardly be viewed as an act by Renaissance "invoking the benefits and protections of" Virgin Islands law.
Next, the Metcalfes emphasize that they "negotiated the sale from St. John, primarily via the telephone, telefax and the internet." App. at 86. Once again, however, they focus on the wrong party. The Metcalfes make no allegation that Renaissance dispatched anything to the Virgin Islands in whatever discourse led up to the one-time purchase contract. To be sure, it is reasonable to infer from the Metcalfes' alleged use of interstate communication facilities and the alleged existence of a contract that Renaissance's acceptance of the Metcalfes' offer may have been communicated through such facilities to them in the Virgin Islands. But not every telephone call into the forum state constitutes the kind of "reaching out" to the forum state that subjects a nonresident to its jurisdiction. Burger King, 471 U.S. at 479, 105 S.Ct. 2174. In Budget Blinds, Inc. v. White, 536 F.3d 244 (3d Cir.2008), for example, we determined that the fact that the parties negotiated an agreement by telephone and mail with the plaintiff remaining in the forum state did not support a finding of minimum contacts with that state. We noted "an important distinction between the negotiations in Burger King and those in [Budget Blinds in] that the Burger King defendant actively sought contract negotiations with a company based in the forum state," whereas in Budget Blinds, there was no indication that the non-forum resident had reached out to anyone in the forum. Budget Blinds, 536 F.3d at 261. Likewise, in the present case, the fact that reciprocal communications may have occurred between Renaissance and the Metcalfes is not sufficient to establish that Renaissance purposely "reached out" to the Virgin Islands where Renaissance is not alleged to have actively sought contract negotiations with the Metcalfes there.
Fourth, the Metcalfes point to the Renaissance website, attaching as Exhibit A a "copy of link entitled `Contact Other Owners.'" App. at 88 (emphasis supplied). As the title of the link suggests, however, Exhibit A cannot accurately be viewed as supporting the Metcalfes' contention that "Renaissance advertises the rental of its vessels on St. Thomas on its website." Id. Exhibit A consists of a list of the names of people who have previously purchased vessels from Renaissance along with their email addresses. On the first page, fifteen
We articulated the controlling principle here in Toys "R" Us, Inc. v. Step Two, S.A., 318 F.3d 446, 454 (3d Cir.2003), as follows:
Exhibit A is not targeted at the Virgin Islands. If it be regarded as targeted at all, it is targeted at anyone anywhere in the world who owns a Renaissance vessel and has an interest in communicating with "other" Renaissance vessel owners. If that targeting is sufficient, Renaissance's website has subjected it to personal jurisdiction anywhere in the world that a Renaissance vessel owner resides, a result that seems inconsistent with Toys "R" Us.
Finally, the Metcalfes rely upon their allegation that during some past period of unspecified duration "Renaissance has sold approximately 7 vessels to Virgin Islands residents." App. at 87. At least three are said to have been sold to See & Ski. This is, of course, not relevant to whether the District Court can exercise specific personal jurisdiction over Renaissance given that the Metcalfes' claim does not arise from those transactions. Conceivably, however, these seven sales might provide a foundation upon which to build a prima facie case of general personal jurisdiction (i.e., the presence of currently existing, "continuous and systematic" contacts with the forum, Remick v. Manfredy, 238 F.3d 248, 255 (3d Cir.2001)). Nevertheless, in the absence of any indication as to when the seven sales were made and whether, unlike the sale to the Metcalfes, they involved some Renaissance activity in the forum, I conclude that the Metcalfes have not come close to alleging a prima facie case of general personal jurisdiction.
The only remaining issue is whether we should remand to provide the Metcalfes with an opportunity for jurisdictional discovery. Toys "R" Us provides the controlling test:
Toys "R" Us, 318 F.3d at 456. I read "with reasonable particularity" to mean that if a plaintiff suggests a realistic basis for believing that personal jurisdiction exists, he or she should be allowed to pursue discovery before having to prove that such jurisdiction does exist. In my judgment, the Metcalfes have not met this threshold. But it is not necessary to so hold. The Metcalfes have never requested jurisdictional discovery in the District Court, and it would clearly be unfair to Renaissance to allow them to successfully insist upon it in the course of this appeal.
I would affirm the judgment of the District Court.