[00:00:00] Speaker 03: And Alla Alabati, 2017, 1044. [00:00:04] Speaker 03: Mr. Blankenship, good morning. [00:00:21] Speaker 01: Good afternoon, Your Honors. [00:00:24] Speaker 01: My name is Keith Blankenship. [00:00:27] Speaker 01: I represent the appellant, Mia Suray, LLC. [00:00:30] Speaker 04: Mr. Blanchard, it's unclear to me from your briefing how you expect this court to find al-Abadi personally liable as a defendant when you don't present any evidence with his name on it, and the only evidence presented at best are a web page screenshot and a single unsigned letter between counsel for a Shisha Center. [00:00:57] Speaker 04: Is there any evidence of record of any actual [00:01:00] Speaker 04: evidence that Al-Abadi ever made contact with Virginia? [00:01:06] Speaker 01: Well, if the physical communication to Virginia from Al-Abadi, no. [00:01:17] Speaker 01: The evidence in this case, Your Honor, because of the stage that it is in, comprises the pleadings and the allegations of the complaint. [00:01:25] Speaker 01: There's quite a bit that we know about. [00:01:28] Speaker 04: Do you disagree with Al-Abadi's sworn statement [00:01:34] Speaker 04: He says he was a part owner in Shisha Center. [00:01:41] Speaker 04: He exercised no control over decisions regarding Shisha Center. [00:01:45] Speaker 04: And then it was dissolved before this litigation ever commenced. [00:01:48] Speaker 01: Yes. [00:01:49] Speaker 04: Do you disagree with that? [00:01:52] Speaker 01: We disagree that he had no control over Shisha Center. [00:01:55] Speaker 04: And we know quite a bit about... What evidence is there of decisions he made regarding Shisha Center? [00:02:04] Speaker 04: actual evidence in the record and refer me to the record. [00:02:08] Speaker 01: At this point, none, Your Honor. [00:02:11] Speaker 01: Right now, it is in the allegations. [00:02:13] Speaker 03: That's why the district court said it's all California. [00:02:19] Speaker 01: Well, Your Honor, we'd like to be able to rest on the allegations that we've made, because we know quite a bit about it. [00:02:27] Speaker 04: You said you were going to file an amended complaint, but you never did. [00:02:31] Speaker 04: Instead, you filed this appeal. [00:02:34] Speaker 01: The purpose of filing the complaint was not to enhance the, or in any way, modify the pleadings for al-Abadi. [00:02:43] Speaker 01: The purpose of the amended complaint was for service against the Dhabis, who is no longer a part of the suit. [00:02:48] Speaker 01: This was for purposes of complying with the Hague Convention, not for any sort of reasons of litigation against Mr. al-Abadi. [00:02:56] Speaker 04: In the blue brief, you say, al-Abadi simply switched his importation of AMY products from Shisha Center Envy. [00:03:04] Speaker 04: to his World Smoke Shop entity. [00:03:08] Speaker 04: Maya Surrey knows this because in the TTAB litigation against Dave's, Maya Surrey has reviewed Dave's shipping documents. [00:03:19] Speaker 04: Where's that stuff in the record? [00:03:21] Speaker 01: It is not in the record at this point, Your Honor, and that is because when you are litigating the TTAB, one of the things that you do is you sign a non-disclosure agreement, a discovery order that prevents you from using [00:03:33] Speaker 01: the materials from that litigation and other litigation. [00:03:37] Speaker 04: Is that present in the record? [00:03:40] Speaker 01: I believe that actually is in the briefing. [00:03:45] Speaker 01: Where is that in the record? [00:03:46] Speaker 01: That would be in the brief we filed with the district court, Your Honor, not in the record for this court. [00:03:57] Speaker 01: So that would have been somewhere in appendix item. [00:04:00] Speaker 04: So what you're asking us to do is just take your word. [00:04:03] Speaker 04: as to the existence of these documents? [00:04:08] Speaker 01: Take our word on the factual allegations that we've put into the complaint. [00:04:13] Speaker 01: What we have put into the complaint was quite carefully drafted. [00:04:18] Speaker 01: It is what we believe to be true. [00:04:20] Speaker 01: It is what research has shown to be true. [00:04:21] Speaker 01: It is what prior litigations have shown to be true. [00:04:29] Speaker 01: is objectively supportable in a court. [00:04:31] Speaker 01: It's just we haven't brought that evidence in, and that's the sort of thing that we've done in the discovery. [00:04:35] Speaker 04: Did you ever request jurisdictional discovery? [00:04:42] Speaker 04: No. [00:04:42] Speaker 04: You rely on silent drive be strong industries. [00:04:46] Speaker 04: Yes, Your Honor. [00:04:46] Speaker 04: And you argue, quote, where no jurisdictional discovery has been taken, a court must accept the complaint's allegations as true and resolve all factual disputes in the [00:04:59] Speaker 04: plaintiff's favorite. [00:05:00] Speaker 04: That's page one of your reply brief. [00:05:03] Speaker 04: Yes, Your Honor. [00:05:05] Speaker 04: Silent Drive doesn't use the word must. [00:05:08] Speaker 04: It says, we have to construe pleadings and affidavits in the light most favorable to it. [00:05:17] Speaker 01: Yes, Your Honor. [00:05:18] Speaker 04: We don't have a resolvable fact dispute. [00:05:21] Speaker 04: We have to construe. [00:05:23] Speaker 04: You understand you've misstated a legal premise to the court. [00:05:27] Speaker 01: My apologies, Your Honor. [00:05:29] Speaker 01: What may have happened is that I saw it in another case, and I turned it into a portmanteau of principles, my apologies. [00:05:43] Speaker 01: But what we're asking this court to do in a very general sense is simply remind the district court that there is more at play than simply a stream of commerce analysis, that there's more at play than just a simple [00:05:57] Speaker 01: a Sahi analysis in terms of whether or not an infringer can be brought into a state for litigation. [00:06:05] Speaker 01: And the district court did that. [00:06:08] Speaker 01: It retained the factual analysis to purely an analysis of where are the products going, how many products are there, where is al-Abadi, through identities, strictly sending the products. [00:06:24] Speaker 01: And in the factual declarations, [00:06:28] Speaker 01: We pled that Alabadi is a distributor who is passing these out to retailers who are selling them into Virginia. [00:06:35] Speaker 01: And Alabadi countered that with assertion and said, well, we don't sell them to Virginia. [00:06:40] Speaker 01: But we pled that they are a distributor. [00:06:43] Speaker 03: Why don't you sue where there's apparently jurisdiction in California? [00:06:49] Speaker 01: Well, that's true that there is certainly jurisdiction in California. [00:06:54] Speaker 01: But we believe that there's a very strong case we made with this jurisdiction in Virginia as well. [00:06:58] Speaker 01: Alabati and his manufacturer targeted Virginia. [00:07:03] Speaker 01: And as in the silent drive case, their communications from the defendant to the forum state through its entities made a promise not to sell infringing items anymore, simply folded up the entity that was doing it and then rerouted it to what was at the time the retail store. [00:07:28] Speaker 01: This case is a case where a Calder analysis belongs. [00:07:34] Speaker 01: And there's simply not a lot of jurisprudence from this court about whether or not the Calder analysis can be applied at all. [00:07:44] Speaker 01: And I think the district court was afraid to step beyond the stream of commerce analysis. [00:07:51] Speaker 01: Because the manufacturer asked me, Israel, at one point, we would like to [00:07:57] Speaker 01: distribute your products. [00:08:01] Speaker 01: So the Amy brand was created. [00:08:05] Speaker 01: The Amy brand was created to copy the Mia brand. [00:08:08] Speaker 01: It's not that much different than someone asking to distribute Coke, getting turned down for Coke, creating a can that looks like Coke and something that sounds like Coke, and then finding a distributor, look at what we have, it looks just like Coke, would you like to distribute it? [00:08:24] Speaker 01: And when the distributor says yes, then the distributor [00:08:27] Speaker 01: at fault in the same way that the manufacturer is. [00:08:30] Speaker 00: I'm struggling with your reliance on Calder because Calder itself had significant contact with the foreign state. [00:08:38] Speaker 00: I just don't see contact here of the type that you see in Calder. [00:08:44] Speaker 00: What sources do you have? [00:08:48] Speaker 00: In Calder you had that the party that was harmed was in California. [00:08:54] Speaker 00: You had that there were contacts with [00:08:56] Speaker 00: parties in California, there was a lot more context there. [00:08:59] Speaker 00: What do you have here to support Calder? [00:09:02] Speaker 01: The intent. [00:09:05] Speaker 01: Finding an entity to target, intending to harm that target, and then carrying out a plan to harm the target. [00:09:12] Speaker 01: Very much in the same way of the Dakota case in the Eighth Circuit, where they targeted around a copy, received knowledge that they probably were copying that brand, kept doing it anyway. [00:09:26] Speaker 01: Even though, like the owner of the company said at the time, we expected this. [00:09:31] Speaker 01: We knew this was going to happen. [00:09:34] Speaker 01: When you ask an entity to distribute their products, they say no. [00:09:38] Speaker 01: You create a copycat brand. [00:09:39] Speaker 01: How can you not expect to be sued by that entity? [00:09:43] Speaker 01: When you tell an entity that you are not going to continue to distribute infringing products, how can you not expect to be held to your obligation when you break it? [00:09:55] Speaker 00: But in the Calder case, there was also the fact that I think maybe a large percentage of the distributorship of the magazine was directed to California. [00:10:06] Speaker 00: There have been contacts with sources for the article in California. [00:10:11] Speaker 00: It's true that, I guess, Calder is analogous in terms of where the location of the party was that was harmed by the actions. [00:10:19] Speaker 00: But what do you have besides that? [00:10:23] Speaker 01: Certainly, in the same way that in Calder there was distribution of the publication in California, there are certainly sales of the hookahs in Northern Virginia. [00:10:32] Speaker 00: But you have no, I mean, when Judge Brinkham asked you, where is your evidence of sales, you admitted there was no evidence of sales other than the fact that you would think that it would be sold in Virginia, given the population in Virginia, right? [00:10:48] Speaker 01: Not quite, Your Honor. [00:10:51] Speaker 01: What we said is we didn't know that Alabadi sold them directly to Virginia. [00:10:56] Speaker 01: The Amy products are in Virginia. [00:11:01] Speaker 01: They're in physical locations. [00:11:02] Speaker 01: They're sold via web retail outlets to Virginia. [00:11:06] Speaker 01: We do know these things. [00:11:08] Speaker 01: But what we don't know is whether or not they're coming directly from Alabadi to Virginia. [00:11:13] Speaker 04: Where's that in the record, the actual physical sales in Virginia? [00:11:21] Speaker 04: Not what offered on the web. [00:11:24] Speaker 01: It is in for both the fiscal sales and the internet sales, appendix 11 to 12 and 142 through 157. [00:11:40] Speaker 00: Did you say 11, 12? [00:11:42] Speaker 01: Yes. [00:11:42] Speaker 00: And what was the other page? [00:11:43] Speaker 01: 142 to 157. [00:11:46] Speaker 01: And these are, again, these are the pleadings that are in the complaint. [00:11:50] Speaker 03: Mr. Blankenship, you're into your rebuttal time. [00:11:52] Speaker 03: If you'd like to save it, I'll continue. [00:11:54] Speaker 01: I would like to save it, Your Honor. [00:11:55] Speaker 03: Thank you very much. [00:11:58] Speaker 03: Mr. Lord. [00:12:05] Speaker 02: Good morning, Your Honor. [00:12:06] Speaker 02: May I please report? [00:12:09] Speaker 02: I think this court, through its questioning, has clearly identified the problem here. [00:12:13] Speaker 02: And the problem is there's simply no evidence in the record for appellant [00:12:17] Speaker 02: to meet its burden and make a promificious case of personal jurisdiction. [00:12:22] Speaker 04: A large premise of al-Abadi's defense involves its denial of Maya's allegations that al-Abadi or his entities are a national distributor as opposed to being a single smoke shop in California. [00:12:41] Speaker 04: Is that correct? [00:12:42] Speaker 04: Correct. [00:12:46] Speaker 04: You argue in the red brief that Al-Abadi denied being a national distributor. [00:12:51] Speaker 04: And Maya's arguments fail because there's no evidence in the record that Al-Abadi sells to any retail stores, let alone anyone in Virginia. [00:13:03] Speaker 04: Frankly, I just went other than there's an affidavit in here that doesn't say much. [00:13:09] Speaker 04: The other pages to which your friend cites [00:13:14] Speaker 04: don't mention Virginia or physical sales. [00:13:18] Speaker 04: But if I go to the next exhibit, exhibit five, there is a statement on page 161 from the business, and this is a website for the Shisha Center. [00:13:37] Speaker 04: We are a wholesale warehouse for all your hookah and tobacco needs. [00:13:42] Speaker 04: all proper business licenses are needed for customer service. [00:13:46] Speaker 04: Does that imply something outside the state of California? [00:13:50] Speaker 02: Well, two points, Your Honor. [00:13:51] Speaker 02: That relates to Shisha Center, Inc. [00:13:54] Speaker 02: Shisha Center, Inc. [00:13:55] Speaker 02: is not a party to this action. [00:13:56] Speaker 02: The party to this action is al-Abadi. [00:13:59] Speaker 02: Maya had identified al-Abadi as the defendant and put DBA, Rosmo Trump, in DBA Shisha Center. [00:14:05] Speaker 02: We contributed that allegation in the al-Abadi declaration that appendix [00:14:12] Speaker 04: Who dissolved the Shisha Company? [00:14:17] Speaker 02: Your Honor, Shisha Center Inc. [00:14:18] Speaker 02: is not my client, so I don't know all the details about Shisha Center Inc. [00:14:21] Speaker 02: So I don't know who dissolved it, but I know it is dissolved, Your Honor. [00:14:25] Speaker 02: And to my original point about Shisha Center Inc., they're not a party to this action. [00:14:31] Speaker 02: And we controverted Shisha Center being a party. [00:14:34] Speaker 02: They're not a DBA, Your Honor. [00:14:35] Speaker 02: So the question is whether Al Abadi or his company, which he owns, Roll Smoke Shop, targeted Virginia. [00:14:41] Speaker 02: And there's really no evidence in the record, as this Court has noted. [00:14:44] Speaker 02: No invoices, no sales, no employees, no officers. [00:14:49] Speaker 02: There's really no presence. [00:14:51] Speaker 02: And that's why Judge Brinkham has said, at Appendix 185, given the record in this case, if the Court were to find jurisdiction, it would basically, I think, just about evaporate any kind of criteria for personal jurisdiction. [00:15:03] Speaker 02: So that's really the point here, Your Honor. [00:15:05] Speaker 02: There is no evidence. [00:15:07] Speaker 02: The judges had questioned earlier about, why isn't this who filed in California? [00:15:10] Speaker 02: We filed a DJ in California. [00:15:12] Speaker 02: I'm sorry? [00:15:13] Speaker 02: We filed a DJ in California, which is now state. [00:15:16] Speaker 02: That's where this case belongs, Your Honor. [00:15:18] Speaker 02: And we believe it's going to proceed there. [00:15:22] Speaker 02: Counsel has made statements, both in his brief and today, regarding assertions that have no support on the record. [00:15:30] Speaker 02: For example, counsel stated today that Alibari targeted Virginia. [00:15:35] Speaker 02: There's no evidence that Alibari targeted Virginia. [00:15:37] Speaker 02: on the bodies based in California. [00:15:39] Speaker 02: They have to come forward and show that he's shooting from California and aiming towards Virginia. [00:15:45] Speaker 02: And there's no evidence of that, Your Honor. [00:15:47] Speaker 02: So given the facts here, given the paltry record, Your Honor, we cited a bunch of cases. [00:15:53] Speaker 02: The McEntree case, there's the AFTG case where courts have found no jurisdiction with contacts far greater than the case here. [00:16:02] Speaker 02: This court should affirm the judgment below. [00:16:06] Speaker 02: So unless there's other questions, I submit a brief. [00:16:08] Speaker 03: Thank you, counsel. [00:16:09] Speaker 03: Mr. Blankenship has some rebuttal time. [00:16:17] Speaker 04: Mr. Blankenship, you're reliant. [00:16:19] Speaker 04: You cited us to certain pages in the record, including an affidavit of Mr. Badawi. [00:16:27] Speaker 04: And his mention of Virginia basically says, [00:16:33] Speaker 04: that Virginia has a substantial Arab-American population. [00:16:38] Speaker 01: Yes, Your Honor. [00:16:39] Speaker 01: And that's it. [00:16:40] Speaker 01: Well, in the same way that there are target markets for specific items, this is a very big market for hookah sales, in the same way that hookahs do not have uniform national popularity. [00:16:57] Speaker 01: Hookahs are the sort of product that are available in some markets that are not as [00:17:01] Speaker 01: not quite as hot in central Mississippi as they are in Dearborn and Detroit, Michigan. [00:17:06] Speaker 01: When you sell hookahs, you are selling to five markets. [00:17:09] Speaker 01: And that's what Mr. Rodales, the president of the MSRA is testifying to, is that you can't not sell hookahs. [00:17:16] Speaker 01: Where do you testify to that? [00:17:18] Speaker 01: I believe that's the very back of his declaration, Your Honor. [00:17:23] Speaker 04: And I read his speculation. [00:17:27] Speaker 04: I didn't find any underlying factual support for it. [00:17:31] Speaker 01: Well, the underlying factual support honors is experienced as the owner and proprietor of SRA, LLC. [00:17:39] Speaker 01: And while we're discussing where is evidence, physical location evidence is appendix 12, paragraph 24, internet sales appendix 11, paragraph 23. [00:17:49] Speaker 01: These are allegations in the complaint. [00:17:53] Speaker 01: We've been to the stores. [00:17:55] Speaker 01: We've seen the hookahs. [00:17:57] Speaker 01: We know where they are. [00:17:58] Speaker 01: But we think the opposing counsel was quite wrong in saying that nobody is shooting anything into Virginia. [00:18:05] Speaker 01: In the same way in Silent Drive, where when shot, an infringement cease and desist letter, a demand letter out from the state of the declaratory judgment, where it went into the state of the declaratory judgment plaintiff. [00:18:28] Speaker 01: In the same way, when you reach into Virginia and tell a Virginia entity, we're going to stop distributing hookahs. [00:18:37] Speaker 01: You're setting off a chain of events in the state of Virginia that's basically getting you off the hook from litigation. [00:18:45] Speaker 01: And that's what Alavadi intended to do here. [00:18:49] Speaker 01: He intended to tell a Virginia entity, don't sue us. [00:18:55] Speaker 01: We're not doing it anymore. [00:18:57] Speaker 01: take litigation resources, use them elsewhere. [00:19:01] Speaker 01: And that's what Mia Surrey did. [00:19:03] Speaker 01: And that's one of the ways that he's purposely availed himself of the Virginia inform. [00:19:08] Speaker 01: We were asking this court just use the same sort of rationale that it applies to demand letters, to responses to demand letters. [00:19:17] Speaker 01: And I think the analogy is appropriate, if not more so, because there's a response to a demand letter. [00:19:23] Speaker 01: There's the APRC affirmation, we will stop. [00:19:27] Speaker 01: And this certainly, and when you never intend to stop, and this is a Calder analysis, and when you do not stop, we would suggest that this is a Burger King analysis. [00:19:43] Speaker 01: And I think that's it, Your Honor. [00:19:44] Speaker 03: Thank you. [00:19:45] Speaker 03: Counsel will take the case under advisement.