692 F. App'x 613
11th Cir.2017Background
- AcryliCon (Georgia) owns the trade-secret formula for a highly durable flooring resin, 1061 SW; Silikal (German) manufactured 1061 SW exclusively for AcryliCon under a prior relationship.
- Parties previously litigated and then executed a global settlement agreement (the Agreement) that (a) represented Silikal had not sold 1061 SW to others, (b) barred future sales except to AcryliCon, and (c) waived future venue/personal-jurisdiction objections in the Northern District of Georgia for U.S. activities.
- AcryliCon alleges Silikal repackaged and sold 1061 SW under Silikal’s mark (including in the U.S.), and sued for trade-secret misappropriation, Lanham Act and state trademark/unfair-competition claims, UDTPA, and breach of the Agreement.
- Silikal moved to dismiss for lack of personal jurisdiction; the district court denied that motion and later granted summary judgment to AcryliCon on breach of contract and entered a permanent injunction prohibiting Silikal from using, selling, or distributing 1061 SW.
- Silikal appealed under 28 U.S.C. § 1292(a)(1), challenging the injunction and seeking pendent appellate review of the personal-jurisdiction denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether this Court should exercise pendent appellate jurisdiction to review district court’s denial of Silikal’s personal-jurisdiction motion | AcryliCon: Court may exercise pendent jurisdiction; review is appropriate and necessary to resolve the appeal | Silikal: Court should review personal jurisdiction; denial was erroneous | Court: Declined to exercise pendent appellate jurisdiction; dismissed that part of the appeal for lack of jurisdiction |
| Whether AcryliCon complied with Agreement’s pre-suit notice/mediation conditions before obtaining relief for breach | AcryliCon: Initial complaint did not assert breach; after filing it gave written notice, 10-day cure opportunity, and mediation offer >30 days before amended complaint asserting breach | Silikal: AcryliCon filed suit without first giving required notice/cure/mediation; injunction therefore improper | Court: Affirmed injunction — AcryliCon was not required to give pre-filing notice until it asserted breach, and it provided the contractual notice/cure/mediation opportunity before adding the breach claim |
Key Cases Cited
- King v. Cessna Aircraft Co., 562 F.3d 1374 (11th Cir. 2009) (describing narrow limits on pendent appellate jurisdiction)
- Swint v. Chambers Cty. Comm’n, 514 U.S. 35 (1995) (defining when pendent appellate jurisdiction is appropriate)
- L.S.T., Inc. v. Crow, 49 F.3d 679 (11th Cir. 1995) (recognizing restrictive view of pendent appellate jurisdiction)
- Rein v. Socialist People’s Libyan Arab Jamahiriya, 162 F.3d 748 (2d Cir. 1998) (discussing circuit approaches to Swint)
- Turlington v. Atlanta Gas Light Co., 135 F.3d 1428 (11th Cir. 1998) (affirmation-on-any-ground principle)
- Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316 (11th Cir. 2012) (arguments not developed on appeal may be forfeited)