XMission, LC v. PureHealth Research

Appellate Case: 23-4001    Document: 010111072149   Date Filed: 06/28/2024   Page: 1
                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                                     PUBLISH
                                                                        June 28, 2024
                   UNITED STATES COURT OF APPEALS
                                                                    Christopher M. Wolpert
                            FOR THE TENTH CIRCUIT                       Clerk of Court
                          _________________________________

  XMISSION, L.C., a Utah company,

        Plaintiff – Appellant,

  v.                                                    No. 23-4001

  PUREHEALTH RESEARCH, a
  Virginia business entity,

        Defendant – Appellee.
                     _________________________________

               Appeal from the United States District Court
                          for the District of Utah
                        (D.C. No. 2:21-CV-00734-TS)
                    _________________________________

 John J. Nielsen, Lee|Nielsen, Salt Lake City, Utah (Thomas R. Lee,
 Lee|Nielsen, Salt Lake City, Utah, Gregory Phillips, Salt Lake City, Utah, and
 Jordan Cameron, Cottonwood Heights, Utah, with him on the briefs), for
 Plaintiff-Appellant.

 Scarlet R. Smith, Strong & Hanni, Sandy, Utah (H. Scott Jacobson, Strong &
 Hanni, Sandy, Utah, with her on the brief), for Defendant-Appellee.
                      _________________________________

 Before MORITZ, EBEL, and ROSSMAN, Circuit Judges.

                          _________________________________

 ROSSMAN, Circuit Judge.

                          _________________________________
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       This case presents a variation on the theme of personal jurisdiction.

 Appellant XMission, L.C. is an internet service provider based in Utah.

 Appellee PureHealth Research is a Wyoming LLC that sells nutritional

 supplements through its website. XMission sued PureHealth in federal district

 court in Utah, claiming XMission’s customers in Utah received thousands of

 unwanted promotional emails from PureHealth—allegedly in violation of state

 and federal law—resulting in increased server maintenance costs and

 customer complaints. PureHealth moved to dismiss under Federal Rule of Civil

 Procedure 12(b)(2) for lack of specific personal jurisdiction, contending it

 lacked sufficient contacts with Utah and the lawsuit did not “arise out of or

 relate to” its forum conduct. The district court granted the motion.

       This appeal asks whether PureHealth must defend this lawsuit in Utah

 where the record establishes it knowingly sent marketing emails to XMission’s

 customers in Utah. The answer is yes. Although this case has some

 distinctively modern features, it is readily resolved by long-standing legal

 principles. Exercising appellate jurisdiction under 

, we

 reverse and remand for further proceedings.




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                                          I1

                                          A

       XMission provides high-speed internet, cloud and web hosting, and email

 services to customers in Utah. XMission’s infrastructure—its servers, routers,

 and switches—is in Utah. Through its terms of service, XMission can opt out

 of unwanted “spam” emails on behalf of its customers.2 And XMission’s

 customers assign “the right to pursue claims arising from the receipt of spam

 emails to XMission.” App. at 22, ¶ 75.

       PureHealth is incorporated in Wyoming and has its principal place of

 business in Virginia. It formulates and manufactures nutritional supplements

 and sells those products nationwide through its website. PureHealth uses two

 kinds of promotional emails to advertise its products. First, PureHealth creates

 and sends direct marketing emails from its own domain names to recipients

 who have done business with PureHealth and have not opted out of receiving




       1 We take the facts recited here from XMission’s complaint and the

 record on PureHealth’s motion to dismiss, including the information
 developed in jurisdictional discovery. See generally Sizova v. Nat. Inst. of
 Standards & Tech., 

 (10th Cir. 2002) (“When a
 defendant moves to dismiss for lack of jurisdiction, either party should be
 allowed discovery on the factual issues raised by that motion.” (quoting
 Budde v. Ling-Temco Vought, Inc., 

 (10th Cir. 1975))).

       2 According to XMission, “spam” means “unlawful commercial email.”

 App. at 12, ¶ 18. PureHealth does not dispute XMission’s definition of
 “spam.”
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 the emails. These communications are known as “newsletter emails.”

 PureHealth collects data about where the newsletter emails are sent, including

 the recipient’s name, email address, physical address, and IP address. Over 90

 percent of “the traffic” on PureHealth’s website comes from the newsletter

 emails. App. at 91–92.

       Second, PureHealth works with advertising networks who use

 independent third-party partners to create and send promotional emails to

 potential PureHealth customers. These are known as “affiliate emails.” See

 App. at 43, 92, 97. PureHealth does not hire the affiliates or have control over

 their actions. PureHealth provides the advertising networks with the

 promotional information it wants distributed, with “certain guidelines that are

 to be followed,” and “[t]he advertising networks th[e]n use the affiliates to

 actually generate and send the emails.” App. at 43. PureHealth also gives the

 advertising networks the subject headings for the affiliate emails.

       PureHealth sent hundreds of newsletter emails and thousands of

 affiliate emails to XMission’s customers in Utah.

                                        B

       In December 2021, XMission sued PureHealth in federal court in the

 District of Utah.3 XMission claimed PureHealth’s advertising emails—both


       3 XMission also sued 10 unknown advertising affiliates PureHealth

 allegedly used to advertise its products. These defendants are not relevant
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 the newsletter emails and the affiliate emails—violated the Controlling the

 Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-

 SPAM      Act),   

   to   7713.4    According     to   XMission,

 PureHealth’s advertising emails contained materially false or misleading

 subject headings, which impaired XMission’s ability to process the emails

 on its servers and were “designed merely to induce the recipient to open the

 email under false pretenses.” App. at 19, ¶ 56. And XMission claimed

 PureHealth did not honor customer opt-out requests within 10 business

 days, as the CAN-SPAM Act requires. XMission also alleged PureHealth

 violated Utah’s Consumer Sales Practices Act, 

,

 by misrepresenting its products in its promotional emails. According to

 XMission, the sheer number of PureHealth’s “spam” emails on its servers

 increased its maintenance and storage costs, generated many customer

 complaints, and generally tarnished its goodwill.




 to the specific jurisdiction question on appeal because the only issue before
 us is whether PureHealth is subject to personal jurisdiction in Utah.

       4The CAN-SPAM Act regulates commercial emails. See 

; see also 

 § 7701(a)(3), (b)(2) (explaining Congress passed the
 CAN-SPAM Act because the “receipt of unsolicited commercial electronic
 mail may result in costs . . . for the storage of such mail” and “senders of
 commercial electronic mail should not mislead recipients as to the source or
 content of such mail”).
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       PureHealth moved to dismiss for lack of specific personal jurisdiction

 under Federal Rule of Civil Procedure 12(b)(2). PureHealth argued it did

 not have the requisite contacts with Utah and asserted it would be “unfair

 and unreasonable” to require it to litigate in the state. App. at 29.

 PureHealth relied primarily on XMission L.C. v. Fluent LLC, 

 (10th Cir. 2020), urging the district court to dismiss XMission’s

 “claims . . . for lack of jurisdiction for all of the same reasons identified by

 the Tenth Circuit in Fluent.” App. at 38. Fluent involved a lawsuit against

 an out-of-state company over spam advertising emails sent to Utah

 residents by third-party affiliate marketers. 

. The issue there, as

 here, was whether the defendant was subject to suit in Utah based on

 emails sent to residents in the state.5 See 

. In Fluent, we concluded

 “the barebones facts presented by XMission” did not suggest the defendant

 “knew that any email recipient resided in Utah,” and thus, we could not say

 the defendant company purposefully directed its commercial business

 activities at Utah. 

.6




       5But, as we will soon explain, there are dispositive differences
 between this case and Fluent.

       6 Fluent involved only advertising emails sent by third-party affiliate

 marketers, and not, as here, both affiliate emails and emails sent directly
 by the defendant company to the forum state. See Fluent LLC, 955 F.3d at
 837–38.
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       After PureHealth moved to dismiss, the district court—at XMission’s

 request—allowed the parties to conduct jurisdictional discovery. Giedrius

 Cekanskis, PureHealth’s owner and Chief Executive Officer, testified in his

 deposition about PureHealth’s email advertising practices. Mr. Cekanskis

 confirmed PureHealth only sent newsletter emails “after [it] already [has]

 a full customer profile—name, address, physical address, phone number, IP

 address.” App. at 100. Mr. Cekanskis further stated PureHealth

 “intentionally” sent newsletter emails to customers who previously

 purchased its products, including its former customers in Utah, and

 “specifically target[ed] those consumers in order to generate more sales.”

 App. at 100. PureHealth also produced documents, including examples of

 the newsletter emails and a subscriber list with customer information.

 XMission submitted a declaration from Peter Ashdown, its founder and

 Chief Technical Officer, identifying “655 [newsletter emails] . . . sent

 directly from” PureHealth to XMission customers in Utah. App. at 223.

       XMission opposed PureHealth’s motion to dismiss. The evidence

 developed in jurisdictional discovery confirmed PureHealth not only sent

 promotional emails through affiliates but also knowingly created and sent

 newsletter emails directly to XMission’s customers in Utah. In this way,

 XMission explained, PureHealth was unlike the defendant in Fluent, who



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 did not know that third-party affiliate marketers were sending promotional

 emails to Utah residents.

       In reply, PureHealth did not dispute it knowingly sent the newsletter

 emails to XMission’s customers in Utah. But PureHealth insisted specific

 personal jurisdiction was lacking because the newsletter emails were sent

 only to those Utah recipients who had opted-in to receiving them.

 PureHealth also argued XMission “failed to establish a prima facie case that

 its alleged injuries ‘arise out of or relate to those’ emails.” App. at 234.

       The district court granted PureHealth’s motion to dismiss in a written

 order. This timely appeal followed.7

                                        II

        The Federal Rules of Civil Procedure allow a defendant to move for

 dismissal of a complaint based on “lack of personal jurisdiction.” Fed. R.

 Civ. P. 12(b)(2). “[P]ersonal jurisdiction is a personal defense that may be

 waived or forfeited.” Mallory v. Norfolk S. Ry. Co., 

, 144 (2023).

 Here, PureHealth properly asserted the defense at the pleading stage. “[A]t

 this stage, plaintiffs need only make a prima facie showing of personal

 jurisdiction.” Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 

,




       7 XMission moved for reconsideration, which the district court denied.

 That order is not on appeal.

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 1070 (10th Cir. 2008). Jurisdictional discovery was conducted in this case,

 and in considering the jurisdictional issue, the district court properly

 examined “discovery material as well as affidavits submitted by the

 parties.” 4 Charles Alan Wright & Arthur R. Miller, Federal Practice and

 Procedure § 1067.6 (4th ed. 2023); see also Kuan Chen v. United States

 Sports Acad., Inc., 

, 56 (1st Cir. 2020) (stating “[i]t is clear

 beyond hope of contradiction that a district court confronted” with a Rule

 12(b)(2) motion to dismiss can consider materials adduced during

 jurisdictional discovery).

       “When, as here, personal jurisdiction is found wanting on the basis of

 the complaint and affidavits, our review of the district court’s dismissal is

 de novo, taking as true all well-pled (that is, plausible, non-conclusory, and

 non-speculative) facts alleged in plaintiff[’s] complaint.” Dudnikov, 

 (internal citation omitted). And “any factual disputes in the

 parties’ affidavits must be resolved in plaintiffs’ favor.” Id.; see also AST

 Sports Science, Inc. v. CLF Distrib. Ltd., 

 (10th Cir.

 2008) (“[T]he court is bound to resolve all factual disputes in favor of the

 plaintiff in determining whether he has made the requisite showing.”).

       With these standards in mind, we describe the applicable law,

 consider the parties’ arguments, and explain why, in this case, Utah has

 specific personal jurisdiction over PureHealth.

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                                        III

        “Federal courts ordinarily follow state law in determining the bounds

  of their jurisdiction over persons.” Walden v. Fiore, 

 (2014)

  (quoting Daimler AG v. Bauman, 

 (2014)). Utah authorizes

  its courts to exercise jurisdiction over “nonresident defendants to the fullest

  extent permitted by the due process clause of the Fourteenth Amendment

  to the United States Constitution.” Utah Code Ann. § 78B-3-201(3). “The

  Due Process Clause of the Fourteenth Amendment limits the power of a state

  court to render a valid personal judgment against a nonresident defendant.”

  World-Wide Volkswagen Corp. v. Woodson, 

 (1980). “‘[T]he

  constitutional touchstone’ of the determination whether an exercise of personal

  jurisdiction comports with due process ‘remains whether the defendant

  purposefully established “minimum contacts” in the forum State.’” Asahi Metal

  Indus. Co., Ltd. v. Superior Ct. of Cal., Solano Cnty., 

, 108–09

  (1987) (quoting Burger King Corp. v. Rudzewicz, 

 (1985)); see

  also World-Wide Volkswagen Corp., 

 (explaining the Due

  Process Clause was intended to “give[] a degree of predictability to the legal

  system that allows potential defendants to structure their primary conduct

  with some minimum assurance as to where that conduct will and will not

  render them liable to suit”). As the Supreme Court has summarized, “[a]

  tribunal’s authority depends on the defendant’s having such ‘contacts’ with the

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  forum State that ‘the maintenance of the suit’ is ‘reasonable, in the context of

  our federal system of government,’ and ‘does not offend traditional notions of

  fair play and substantial justice.’” Ford Motor Co. v. Mont. Eighth Jud. Dist.

  Ct., 

, 358 (2021) (quoting International Shoe Co. v. Washington,

  

 (1945), which the Court said remains “[t]he canonical decision in

  this area”).

        There are two kinds of personal jurisdiction: “general (sometimes called

  all-purpose)   jurisdiction   and   specific   (sometimes   called   case-linked)

  jurisdiction.” 

 A defendant subject to general jurisdiction allows a

  “court . . . [to] hear any claim against that defendant, even if all the

  incidents underlying the claim occurred in a different State.” Bristol-Myers

  Squibb Co. v. Superior Ct. of Cal., S.F.W Cnty., 

, 262 (2017). “But

  ‘only a limited set of affiliations with a forum will render a defendant amenable

  to’ general jurisdiction in that State.” 

 (quoting Daimler AG, 

). “Specific jurisdiction is very different” because for a court “to exercise

  specific jurisdiction, ‘the suit’ must ‘aris[e] out of or relat[e] to the

  defendant’s contacts with the forum.’” 

 (quoting Daimler, 

). “In other words, there must be ‘an affiliation between the forum and

  the underlying controversy, principally, [an] activity or an occurrence that

  takes place in the forum State and is therefore subject to the State’s



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  regulation.’” 

 (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown,

  

 (2011)).

        This is a specific jurisdiction case, as the parties agree. The specific-

  jurisdiction inquiry focuses on “the relationship among the defendant, the

  forum, and the litigation.” Daimler AG, 

 (quoting Shaffer v.

  Heitner, 

 (1977)). “The contacts needed for this kind of

  jurisdiction often go by the name ‘purposeful availment.’” Ford Motor Co.,

  592 U.S. at 359. We have held “[s]pecific jurisdiction is proper if (1) the

  out-of-state defendant ‘purposefully directed’ its activities at residents of

  the forum State, and (2) the plaintiff's alleged injuries ‘arise out of or relate

  to those activities.’” Fluent LLC, 955 F.3d at 840 (quoting Burger King

  Corp., 

).

        On appeal, XMission urges reversal, contending PureHealth was

  subject to personal jurisdiction in Utah because it (1) purposefully directed

  its newsletter emails at Utah residents, and (2) XMission’s claims arose out

  of or relate to those emails.8 On the record before us, we agree.




        8 XMission also argues there is specific personal jurisdiction based on

  the affiliate emails. Because we conclude the newsletter emails provide a
  sufficient contact with the forum state to permit the exercise of specific
  personal jurisdiction, we need not also decide the jurisdictional import of
  PureHealth’s affiliate emails.

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                                         A

        “Purposeful direction (sometimes referred to as purposeful availment)

  requires that a defendant have ‘deliberately . . . engaged in significant

  activities within’ the forum State or deliberately directed its activities at

  the forum State, so that it has ‘manifestly availed [itself] of the privilege of

  conducting business there.’” 

 (internal citation omitted) (quoting Old

  Republic Ins. Co. v. Cont’l Motors, Inc., 

 (10th Cir. 2017)).

  “Purposeful direction is a product of both the quantity and quality of a

  defendant’s contacts with the forum.” 

 This “requirement ensures that a

  defendant will not be subject to the laws of a jurisdiction solely as a result

  of random, fortuitous, or attenuated contacts, the unilateral activity of

  another party or a third person, or the mere foreseeability that its actions

  may cause injury in that jurisdiction.” 

 at 840–41 (internal quotations

  and citations omitted).

        Our precedents reveal several frameworks for testing whether a

  defendant has purposefully directed its activities at the forum state. See

  Old Republic Ins. Co., 877 F.3d at 904–08.9 At issue here is the


        9  In Old Republic Ins. Co., we identified three distinct
  purposeful-direction frameworks, each focusing on a particular aspect of a
  defendant’s contacts with the forum state: (1) “continuing relationships
  with forum state residents”; (2) “deliberate exploitation of the forum state
  market”; and (3) “harmful effects in the forum state.” 877 F.3d at 905–08.
  Before the district court, XMission relied on both the “deliberate
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  harmful-effects test from Calder v. Jones, 

 (1984).10 In a

  handful of precedents, we have applied this test to suits “involving the

  Internet.” Fluent LLC, 955 F.3d at 843 (applying harmful-effects test to a



  exploitation” and harmful-effects frameworks to establish PureHealth’s
  purposeful-direction. On appeal, XMission focuses only on the
  harmful-effects test, and for that reason, so do we.

        10 Calder will be familiar to every first-year law student. That case

  involved an allegedly libelous magazine article about actress Shirley Jones,
  a California resident. Calder, 465 U.S. at 784–85, 788. The article’s author
  and editor were Florida residents. Id. at 785. The author called sources in
  California “for the information contained in the article” and “[s]hortly
  before publication,” called Ms. Jones’s home and “read to her husband a
  draft of the article so as to elicit his comments upon it.” Id. at 785–86. The
  editor for his part, had “been to California only twice,” and both visits were
  unrelated to the article. Id. at 786. But the editor “approved the initial
  evaluation of the subject of the article and edited it in its final form.” Id.

         Ms. Jones sued the Florida defendants in California superior court for
  “libel, invasion of privacy, and intentional infliction of emotional harm” over
  claims made in the article. Id. at 785. The Florida defendants insisted there
  was no personal jurisdiction in California because “they [were] not
  responsible for the circulation of the article in California,” had “no direct
  economic stake in their employer’s sales in a distant State,” and were
  unable “to control their employer’s marketing activity.” Id. at 789.

        Ultimately, the Supreme Court approved the state court’s exercise of
  personal jurisdiction. Id. at 791. The Court reasoned the “libelous story
  concerned the California activities of a California resident,” impacted “the
  professionalism of an entertainer whose television career was centered in
  California,” drew “from California sources, and the brunt of the harm, in
  terms both of [Ms. Jones’s] emotional distress and the injury to her
  professional reputation, was suffered in California.” Id. at 788–89.
  Importantly, the Court observed the Florida defendants “knew” the article
  “would have a potentially devastating impact” on Ms. Jones and “the brunt
  of that injury would be felt” in California. Id. at 789–90.

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  lawsuit involving spam emails sent by third-party publishers hired by the

  defendant); Shrader v. Biddinger, 

, 1240–41 (10th Cir. 2011)

  (applying harmful-effects test to a lawsuit involving, in part, an allegedly

  defamatory email posted on a blog); Dudnikov, 514 F.3d at 1072–78 (applying

  harmful-effects test to a lawsuit involving sales on eBay’s auction website);

  Intercon, Inc., v. Bell Atl. Internet Sols., Inc., 

, 1247–48 (10th

  Cir. 2000) (applying harmful-effects test to a lawsuit involving email traffic

  routed through email servers). Under the harmful-effects test, therefore, a

  plaintiff meets its prima facie burden by showing “an out-of-state

  defendant’s intentional conduct targets and has substantial harmful effects

  in the forum state.” Fluent LLC, 955 F.3d at 841 (quoting Old Republic Ins.

  Co., 

). To demonstrate purposeful availment in the

  harmful-effects context, a plaintiff must allege the defendant committed

  “(a) an intentional action that was (b) expressly aimed at the forum state

  with (c) knowledge that the brunt of the injury would be felt in the forum

  state.” 

 (internal quotations omitted).

        There is no doubt PureHealth engaged in “an intentional action” by

  sending newsletter emails to XMission’s customers in Utah. Id. at 841.

  PureHealth admits as much. We thus focus on whether PureHealth expressly

  aimed the newsletter emails at Utah residents, knowing that the brunt of

  the injuries alleged by XMission would be felt in the forum state.

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        According to the district court, XMission “failed to establish that

  PureHealth expressly aimed the newsletter emails to Utah.” App. at 247. The

  district court acknowledged “[i]t [was] undisputed that PureHealth stores

  physical    address     information   for    newsletter   recipients   and     thereby

  constructively knows that some of the emails are going to Utah residents.” App.

  at 247. But the purposeful-direction prong remained unsatisfied, the district

  court reasoned, because the Utah recipients had “opted into receiving

  PureHealth newsletter emails.” App. at 247. On appeal, XMission contends the

  district court mistakenly focused its purposeful-direction inquiry on the

  customers’ opt-in conduct, rather than on PureHealth’s conduct of knowingly

  sending the newsletter emails to XMission’s customers in Utah. We agree with

  XMission.

        Jurisdictional discovery confirmed PureHealth maintains a database of

  customer information for recipients of newsletter emails that ties a customer’s

  email address to a physical address and an IP address. This undisputed fact—

  that PureHealth knew its newsletter emails were going directly to Utah

  residents—is fatal to its appellate position on purposeful direction. See id. at

  844–45.

        Fluent is instructive by contrast. There, XMission sued Fluent LLC, a

  Delaware company, in federal district court in Utah for violating the

  CAN-SPAM Act. Id. at 837. Fluent was in the digital marketing business. Id.

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  XMission claimed Fluent sent thousands of marketing emails to customers in

  Utah through XMission’s servers. Id. The offending emails prompted recipients

  to enter personal information, which Fluent would then sell to businesses “to

  assist them in developing targeted marketing campaigns.” Id.

        Fluent moved to dismiss for lack of personal jurisdiction. Id. at 839.

  According to Fluent, it did not send the offending emails itself but relied on

  third parties. Id. at 837–38. Fluent maintained it had “no involvement with or

  control over the origination, approval, or delivery of the emails.” Id. at 838.

  And it “never undert[ook] to market or advertise in Utah or to target or direct

  any internet marketing directly to Utah residents.” Id. Fluent claimed it did

  not “know the locations of the recipients [or] decide who should receive the

  emails.” Id. The district court granted Fluent’s motion to dismiss, and we

  affirmed. Id. at 839.

        We first acknowledged the focus of the purposeful-direction inquiry must

  be on the defendant’s contact with the forum state. Id. at 843. And in cases

  involving “Internet activities such as mass emailing, website hosting, and

  Internet postings,” we must ask “whether the defendant ‘deliberately directed

  its message at an audience in the forum state and intended harm to the

  plaintiff occurring primarily or particularly in the forum state.’” Id. at 844–45

  (quoting Shrader, 

).



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        “[S]pecific jurisdiction is proper over a[n] [email] sender,” we held in

  Fluent, “only if the plaintiff shows that the sender had knowledge that the

  offending emails were going to a specific State.” Id. at 845 (emphasis added).

  Applying this rule, we concluded “XMission ha[d] not made any showing that

  Fluent knew that any email recipient resided in Utah.” Id. at 846. XMission

  “presented no specific evidence contradicting” Fluent’s explanation of its

  “involvement with the emails,” we reasoned, and “offered no evidence that

  Fluent itself delivered emails, had a business relationship with Utah

  publishers, or knew that any publishers were sending emails to Utahns.” Id.

  at 838.11 Though XMission insisted “Fluent must have known some of the

  offending emails were going to Utah . . . based on its business model,” we

  rejected this argument, explaining “[p]urposeful direction cannot be satisfied

  if the [defendant] . . . simply wants as many responses as possible but is

  indifferent to the physical location of the responder.” Id. at 846–47.

        In this appeal, XMission acknowledges “emailing someone who happens

  to live in Utah—without knowledge of where they live—is not enough to

  subject a company to personal jurisdiction.” Reply Br. at 8. That is precisely




        11 In Fluent, we observed XMission “could have obtained through
  discovery some additional information to support jurisdiction; but it conducted
  no jurisdictional discovery.” Fluent LLC, 955 F.3d at 836. Here, by contrast,
  XMission conducted jurisdictional discovery to aid in satisfying its prima facie
  burden.
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  the import of Fluent. But that is not this case. PureHealth admits it sent

  newsletter emails to its former customers in Utah knowing they live in Utah.

  And that knowledge—absent in Fluent but undisputedly present here—shows

  PureHealth expressly aimed its conduct at Utah. See id. at 846 (PureHealth

  admits it “knew that [the] email recipient[s] resided in Utah”); see also App. at

  247 (“It is undisputed that PureHealth . . . knows that some of these emails

  are going to Utah residents.”).

        That PureHealth’s former Utah customers may have consented to

  receiving the newsletter emails from PureHealth does not disturb our

  conclusion. “The primary focus of our personal jurisdiction inquiry is the

  defendant’s relationship to the forum State.” Bristol-Myers Squibb Co., 582

  U.S. at 262. It is axiomatic that “jurisdiction must be based on the conduct

  of the defendant itself” and not on “the unilateral activity of another party or

  a third person.” Fluent LLC, 955 F.3d at 847 (emphasis added) (citation

  omitted); see also Asahi Metal Indus. Co., Ltd., 

 (explaining

  “[j]urisdiction is proper . . . where the contacts proximately result from

  actions by the defendant himself that create a substantial connection with

  the forum state” and that the minimum contacts “must have a basis in ‘some

  act by which the defendant purposefully avails itself of the privilege of

  conducting activities within the forum State’” (second emphasis added)

  (quoting Burger King Corp., 

)); Walden, 

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  (explaining “it is the defendant’s conduct that must form the necessary

  connection with the forum State that is the basis for its jurisdiction over

  him”). The proper focus of the purposeful-direction inquiry is thus on

  PureHealth’s conduct in Utah and not the conduct of the email recipients who

  reside in the state.12

        We turn now to the final requirement of the harmful-effects test—the

  defendant’s “knowledge that the brunt of the injury would be felt in the forum

  state.” Newsome v. Gallacher, 

 (10th Cir. 2013). This

  element “concentrates on the consequences of the defendant’s actions—where

  was the alleged harm actually felt by the plaintiff.” Dudnikov, 

. We have little trouble concluding XMission has made a sufficient

  showing at the pleading stage.

        XMission argues “[b]y knowingly sending emails to Utah residents on

  Utah servers, PureHealth has knowingly inflicted harm on a Utah business.”

  Aplt. Br. at 27. We agree. We previously have suggested that by satisfying the

  “first two prongs” of the harmful-effects test—an intentional action expressly

  aimed at the forum state—a plaintiff would show the defendant knew the


        12 PureHealth insists the purposeful-direction requirement is not met

  because the newsletter emails were “aimed at customers, not Utah.” Aplee. Br.
  at 22. “That the customer was in Utah is happenstance,” PureHealth argues,
  “and not th[e] intentional conduct the harmful effects test demands.” Aplee.
  Br. at 22. We are not persuaded because, as explained, this argument
  misunderstands the law.
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  “effects would be felt in” the forum. Dudnikov, 

; see also

  Newsome, 

 (reasoning “[a]t the pleading phase, then, it is a

  fair inference that the . . . defendant[] knew that the brunt of an injury to [the

  plaintiff] would be felt in [the forum State]” once the first two prongs of the

  harmful-effects test are met). Moreover, the record shows the entirety of

  XMission’s infrastructure was in Utah, including its email servers. XMission

  alleged it incurred costs maintaining its servers and upgrading them to handle

  the influx of emails from PureHeath. It further asserted it suffered “harm to

  [its] reputation” and received “customer and email recipient complaints . . . of

  unwanted spam arising from the email at issue.” App. at 15.

        We thus conclude XMission has made a prima facie showing that, by

  knowingly sending newsletter emails to customers residing in Utah,

  PureHealth purposefully directed its conduct at the forum state.

                                          B

        We turn next to whether XMission’s claims “arise out of or relate to”

  PureHealth’s forum conduct. See Burger King Corp., 

. The

  district court determined, even “if PureHealth’s newsletter emails were

  sufficient to establish purposeful direction,” XMission did not “allege[]

  facts . . . support[ing]” that those emails “caused or are related to its causes

  of action.” App. 247. The district court faulted XMission for “conclusively

  claim[ing] that the subject headings were false or misleading” but “not

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  provid[ing] any specific factual allegations or evidence to support this

  claim.” App. at 247–48. On appeal, XMission contends it presented

  sufficient allegations and evidence to show a link between the litigation and

  PureHealth’s conduct in Utah. Again, we agree with XMission.

        “Step two of the minimum contacts test requires us to determine

  whether the plaintiff's injuries ‘arise out of’ the defendant’s forum-related

  activities.” Old Republic Ins. Co., 

. “The arising-out-of

  component of the test requires courts to ensure that there is an adequate

  link between the forum State and the claims at issue, regardless of the

  extent of a defendant’s other activities connected to the forum.” Fluent LLC,

  955 F.3d at 840. “In order for a court to exercise specific jurisdiction over a

  claim, there must be an affiliation between the forum and the underlying

  controversy, principally, an activity or an occurrence that takes place in the

  forum State.” Old Republic Ins. Co., 

 (internal quotations

  omitted) (quoting Bristol-Myers Squibb Co., 582 U.S. at 264).

        We have interpreted the “arise out of” language to require “some sort

  of causal connection between a defendant’s contacts and the suit at issue.”

  Dudnikov, 

; see also Hood v. American Auto Care, LLC, 

, 1223 (10th Cir. 2021) (recognizing “the Supreme Court agreed

  that ‘arise out of’ is a causal test”). And in this context, we have used



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  “but-for and proximate causation tests.” 

. As we explain,

  XMission satisfies both.13

        Proximate causation “calls for courts to ‘examine whether any of the

  defendant’s contacts with the forum are relevant to the merits of the

  plaintiff’s claim.’” Dudnikov, 

 (quoting O’Connor v. Sandy

  Lane Hotel Co., 

 (3d Cir. 2007) (alteration omitted)). “[T]he

  test for proximate causation for purposes of personal jurisdiction may be, in

  appropriate circumstances, somewhat looser than the tort concept of


        13 We have observed that our court has not settled on a specific
  standard of causation for the purposeful-availment inquiry. Compañía de
  Inversiones Mercantiles, S.A. v. Grupo Cementos de Chihuahua S.A.B. de
  C.V., 

, 1285 (10th Cir. 2020) (“This court on several occasions
  has declined to choose between but-for and proximate causation [in the
  personal jurisdiction context], finding that neither test was outcome
  determinative given the facts at hand.”). And we need not do so in this case.
  For one thing, neither test is outcome determinative, because, as we
  explain, XMission satisfies both of our circuit’s articulated formulations.

         And there is reason to think a wholly causation-based framing of the
  “arise out of or relate to” prong may be in tension with the Supreme Court’s
  recent pronouncements on the specific-jurisdiction inquiry. See, e.g., Ford
  Motor Co., 

 at 362 (explaining “we have never framed the
  specific jurisdiction inquiry as always requiring proof of causation—i.e.,
  proof that the plaintiff’s claim came about because of the defendant's
  in-state conduct”); see also Bristol-Myers Squibb Co., 582 U.S. at 262
  (explaining specific jurisdiction requires only an “affiliation between the
  forum and underlying controversy” such that the court is adjudicating
  “issues deriv[ed] from, or connected with” the controversy (emphasis added)
  (quoting Goodyear Dunlop Tires Operations, S.A., 

)); Hood,
  21 F.4th at 1223–25 (explaining Ford Motor Co. “did not support requiring
  strict causation” in evaluating the “arise out of or relate to” prong of specific
  jurisdiction).
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  proximate causation.” Compañía de Inversiones Mercantiles, S.A. v. Grupo

  Cementos de Chihuahua S.A.B. de C.V., 

, 1288 (10th Cir.

  2020). Under the proximate-cause test, we must “determine whether a

  nexus exists” between a defendant’s forum contacts and a plaintiff’s cause

  of action. See 

 (10th Cir. 2020) (citation omitted). Applying the

  proximate-cause test, PureHealth’s newsletter emails—its conduct in

  Utah—are linked to XMission’s claims.

        Recall, the CAN-SPAM Act prohibits the use of deceptive subject

  headings, “likely to mislead a recipient . . . about a material fact regarding

  the contents or subject matter of the message.” 

(a)(2).

  XMission alleged the newsletter emails violated the CAN-SPAM Act by

  including false and misleading subject lines.14 The newsletter emails

  allegedly “contain a subject heading that [states] that the promoted

  products    have    healing   properties”   unsupported     by    “any    data,

  documentation, or substantiation.” App. at 19, ¶¶ 55–56. According to

  XMission, the subject lines “are designed merely to induce the recipient to

  open the email under false pretenses.” App. at 19, ¶ 56. XMission also

  included examples of the newsletter emails with their subject lines.


        14 Likewise, Mr. Ashdown, in his declaration, stated XMission
  discovered 655 emails “sent directly from Pure Health” that “include[d]
  subject lines that . . . are false and misleading in violation of the CAN-
  SPAM Act.” App. at 223.
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  PureHealth’s newsletter emails squarely form the basis of XMission’s

  claims under the CAN-SPAM Act. See Bristol-Myers Squibb Co., 582 U.S.

  at 262 (explaining “specific jurisdiction is confined to adjudication of issues

  deriving from, or connected with, the very controversy that establishes

  jurisdiction” (quoting Goodyear Dunlop Tires Operations, S.A., 

)).

           Under the but-for-cause formulation, “any event in the causal chain

  leading to the plaintiff’s injury is sufficiently related to the claim to support

  the exercise of specific jurisdiction.” Dudnikov, 

. At this

  stage, the 655 newsletter emails are at minimum an “event in the causal

  chain leading to [XMission’s] injury.” 

 Stated differently, but for

  PureHealth’s act of knowingly sending newsletter emails directly to

  XMission’s Utah customers, XMission would not have a cause of action

  under the CAN-SPAM Act for the allegedly false and misleading subject

  lines in those emails.

           Resisting this conclusion, PureHealth maintains “nothing shows that

  the [newsletter] emails with purportedly misleading subject lines are linked

  to XMission’s alleged injuries.” Aplee. Br. at 34. It characterizes XMission’s

  allegations as “bald assertion[s]” without “sufficient facts.” Aplee. Br. at




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  35.15 We are not persuaded. PureHealth’s argument depends on a level of

  particularity at the pleading stage that our law does not require. To be sure,

  XMission bears the burden of establishing personal jurisdiction because the

  matter is contested. But the plaintiff “need only make a prima facie

  showing” of personal jurisdiction. Dudnikov, 

. And “[i]n the

  preliminary stages of litigation, . . . the plaintiff’s burden is light.” Wenz v.

  Memery Crystal, 

 (10th Cir. 1995); see also 5B Charles

  Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1342 (4th

  ed. 2024) (“The objective of Federal Rule of Civil Procedure 12 is to expedite

  and simplify the pretrial phase of federal litigation while at the same time

  promoting the just disposition of civil cases.”).

        Here, XMission has made a prima facie showing that its injuries arose

  out of or related to PureHealth’s newsletter emails. The complaint detailed

  how PureHealth’s emails were sent to XMission’s Utah customers, causing

  those emails to reside on XMission’s Utah servers. And XMission alleged it

  received customer complaints that damaged its goodwill and reputation and

  forced it to spend money on its servers it otherwise would not have spent.


        15
          PureHealth also argues XMission failed to allege sufficiently the
  elements of a claim under the CAN-SPAM Act. That argument is inapposite
  to the specific jurisdiction question at the heart of this appeal. Compañía
  de Inversiones Mercantiles, S.A. , 970 F.3d at 1286 (explaining “personal
  jurisdiction turns on due process principles, rather than the elements of a
  given claim”).
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  Those allegations are sufficient to establish XMission’s injuries arise out of

  PureHealth’s newsletter emails.16




        16 Of course, the exercise of jurisdiction must be reasonable under the

  circumstances. Burger King Corp., 

 (listing the factors to
  consider in determining “the reasonableness of jurisdiction”); Asahi Metal
  Indus. Co., 

 (stating “the determination of the
  reasonableness of the exercise of jurisdiction in each case will depend on an
  evaluation of several factors”). PureHealth insists on appeal that it would
  be unreasonable for a federal district court in Utah to adjudicate this
  lawsuit. Though PureHealth asserted unreasonableness in the district
  court, the argument was not developed, and the district court never passed
  on the issue. Indeed, PureHealth devoted less than a paragraph to its
  reasonableness argument in its motion to dismiss before the district court
  and abandoned the issue entirely in its reply to XMission’s opposition.

        We have explained “it is incumbent on defendants to present a
  compelling case that the presence of some other considerations would
  render jurisdiction unreasonable.” Shrader, 

 (emphasis
  added) (quoting Dudnikov, 

); see also Burger King Corp.,
  

 (explaining a defendant “must present a compelling case”
  for why the exercise of jurisdiction is unreasonable); Carmona v. Leo Ship
  Mgmt., Inc., 

 (5th Cir. 2019) (explaining “the burden shifts
  to the defendant to make a ‘compelling case’ that the assertion of
  jurisdiction is not fair or reasonable”); Polar Electro Oy v. Suunto Oy, 

 (Fed. Cir. 2016) (same); Louis Vuitton Malletier, S.A. v.
  Mosseri, 

 (11th Cir. 2013) (same); Schwarzenegger v.
  Fred Martin Motor Co., 

 (9th Cir. 2004) (same).
  PureHealth failed to carry its burden in the district court. Under these
  circumstances, we decline to exercise our discretion to consider the issue in
  the first instance. See Cavic v. Pioneer Astro Indus., Inc., 

 (10th Cir. 1987) (reasoning “a federal appellate court will not consider
  an issue ‘which was not presented to . . . the trial court’” (quoting
  Eureka-Carlisle Co. v. Rottman, 

 (10th Cir. 1968)); see
  also 

 (“Further, ‘[t]he matter of what questions may be taken up and
  resolved for the first time on appeal is one left primarily to the discretion of
  the courts of appeals, to be exercised on the facts of individual cases.’”
  (quoting Singleton v. Wulff, 

 (1976)).
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                                       IV

        The district court’s grant of PureHealth’s Motion to Dismiss is

  REVERSED. We REMAND for further proceedings consistent with this

  opinion.




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