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2002-10-18

United States District Court for the Western District of Tennessee

Yeubanks v. Methodist Healthcare Memphis Hospitals

Yeubanks v. Methodist Healthcare Memphis Hospitals, 227 F. Supp. 2d 934 (2002)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_23

if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

Background Ms. Yeubanks’ nine year old daughter, Sarah Nicole Anderson, was taken to Le Bonheur for medical treatment on February 17, 1998, after being involved in an automobile accident. She was pronounced dead on February 18,1998. At the time of her death, Sarah Anderson (“Decedent”) lived with her mother, younger sister, and grandparents at 6564 Oak Park Drive, Cordova, Tennessee. Wayne Anderson, Decedent’s father, filed a wrongful death lawsuit on February 4, 1999, against Ms. Yeubanks, Sandra McWilliams, and Tracy Kriemer. Ms. Yeubanks was the driver of the vehicle in which Decedent was a passenger, and Sandra McWilliams owned the vehicle driven by Ms. Yeubanks. Tracy Kriemer operated the other vehicle involved in the auto mobile accident. The case was settled and dismissed on August 21, 2000. On February 17, 1999, Ms. Yeubanks filed a medical malpractice action against the above named Defendants in Division 8 of the Circuit Court of Tennessee for the Thirtieth Judicial District of Memphis. The case proceeded to trial on June 11, 2001. On July 17, 2001, Ms. Yeubank filed a notice of voluntary dismissal as to Dr. Hixson and PSG. The following day, Ms. Yeubanks voluntarily dismissed the claims of medical negligence against Dr. Hertz and of vicarious liability against Le Bonh-eur. The order granting the voluntary non-suit was entered on July 19, 2001. Pursuant to Rules 54.02(2) and 41.04 of the Tennessee Rules of Civil Procedure, the state court awarded discretionary costs of approximately $36,000 against Ms. Yeu-banks and stayed the proceedings in a new action until payment of these costs. Ms. Yeubanks appealed the order to the Tennessee Court of Appeals, and the case is pending at this time. II. A motion to dismiss may only be granted “

2002-10-18

United States District Court for the Western District of Tennessee

Yeubanks v. Methodist Healthcare Memphis Hospitals

Yeubanks v. Methodist Healthcare Memphis Hospitals, 227 F. Supp. 2d 934 (2002)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_49

the court must construe the complaint in a light most favorable to the plaintiff, and accept all of [the] factual allegations as true.

” In considering a motion to dismiss, “

2002-12-03

United States Court of Appeals for the Sixth Circuit

Homfeld II, L.L.C. v. Comair Holdings, Inc.

Homfeld II, L.L.C. v. Comair Holdings, Inc., 53 F. App'x 731 (2002)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_23

it appears beyond doubt that the plaintifffs] can prove no set of facts in support of [their] claim which would entitle [them] to relief.

” Because there is no dispute about the fact of our jurisdiction, but merely a defective allegation, we will proceed to the merits of the case, but we order the Leasing Companies to file, within ten days of this decision, a proper amendment in this Court setting forth the facts demonstrating diversity jurisdiction. See Miller v. Davis, 507 F.2d 308, 311 (6th Cir.1974) (noting that Congress’s intent in enacting 28 U.S.C. § 1653 was to avoid dismissals on technical grounds, and, while proceeding to the merits of the case, ordering the appellants to file a proper amendment in the appellate court establishing diversity jurisdiction). We review do novo a district court’s dismissal of a complaint under Fed. R. Civ. Proc. 12(b)(6). Like the district court, we assume that all of the plaintiffs’ factual allegations are true, and we may affirm the dismissal only if “

2004-11-29

United States District Court for the Eastern District of Michigan

Campbell v. Bridgeview Marina, Ltd.

Campbell v. Bridgeview Marina, Ltd., 347 F. Supp. 2d 458 (2004)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_47

need only make a prima facie showing of jurisdiction.

For the reasons stated below, the Court will grant Defendant Needham’s Marine’s motion to dismiss for lack of personal jurisdiction, deny as moot Defendant Need-ham Marine’s motion to dismiss on the doctrine of forum non conveniens, and grant the other Defendants’ motion to dismiss on the doctrine of forum non conve-niens. I. BACKGROUND This case arises out of repairs made to a sailing vessel, the Gael. The Gael hails from the port of Philadelphia, Pennsylvania. Plaintiffs, who are Michigan citizens, wholly own a Delaware corporation that owns the Gael. While sailing in Lake Huron on September 1, 2000, the Gael ran aground near Lexington, Michigan and sustained significant damage. The Gael was towed to Ontario, Canada, where it was allegedly serviced by Captain’s Yachting Service, Bridgeview Marina, and Need-ham’s Marine. Plaintiffs have brought suit against Defendants alleging claims for breach of contract, fraud, rescission, fraud in the inducement, and violation of the Michigan Consumer Protection Act. The Court has subject matter jurisdiction over this case based on diversity of citizenship pursuant to 28 U.S.C. § 1332. Defendant Needham’s Marine seeks to dismiss the action against it for lack of personal jurisdiction. All of the Defendants also seek to have this case dismissed based on Plaintiffs’ choice of venue. The Court addresses each of these motions below. II. MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION The Court will first address Defendant Needham’s Marine’s motion to dismiss based on lack of personal jurisdiction. Plaintiffs, as the party seeking to assert personal jurisdiction, bear the burden of demonstrating that such jurisdiction exists. MCNIC Oil & Gas Co. v. IBEX Resources Co., 23 F.Supp.2d 729, 732 (E.D.Mich.1998) (Gadola, J.). The standard for determining whether jurisdiction exists depends upon whether the Court holds an eviden-tiary hearing on the jurisdictional issue. Consequently, Plaintiffs “

2004-11-29

United States District Court for the Eastern District of Michigan

Campbell v. Bridgeview Marina, Ltd.

Campbell v. Bridgeview Marina, Ltd., 347 F. Supp. 2d 458 (2004)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_24

not [to] consider facts proffered by the defendant that conflict with those offered by the plaintiff, and [to] construe the facts in a light most favorable to the nonmoving party.

” When an eviden-tiary hearing is not conducted, the United States Court of Appeals for the Sixth Circuit has directed the courts “

2004-11-29

United States District Court for the Eastern District of Michigan

Campbell v. Bridgeview Marina, Ltd.

Campbell v. Bridgeview Marina, Ltd., 347 F. Supp. 2d 458 (2004)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_32

the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state,

” McGill, 300 F.Supp.2d at 505 (Gadola, J.); see also Youn, 324 F.3d at 418. The Sixth Circuit has established a three-part test for determining whether a court may exercise limited jurisdiction over a defendant: (1) “

2004-11-29

United States District Court for the Eastern District of Michigan

Campbell v. Bridgeview Marina, Ltd.

Campbell v. Bridgeview Marina, Ltd., 347 F. Supp. 2d 458 (2004)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_55

the cause of action must arise from the defendant’s activities there,

The Sixth Circuit has established a three-part test for determining whether a court may exercise limited jurisdiction over a defendant: (1) “the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state,” (2) “

2004-11-29

United States District Court for the Eastern District of Michigan

Campbell v. Bridgeview Marina, Ltd.

Campbell v. Bridgeview Marina, Ltd., 347 F. Supp. 2d 458 (2004)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_22

the acts of the defendant or consequences caused by defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable.

The Sixth Circuit has established a three-part test for determining whether a court may exercise limited jurisdiction over a defendant: (1) “the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state,” (2) “the cause of action must arise from the defendant’s activities there,” and (3) “

2004-12-17

United States District Court for the Northern District of Ohio

Kemper v. Saline Lectronics

Kemper v. Saline Lectronics, 348 F. Supp. 2d 897 (2004)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_1

if the defendant is amenable to service of process under the [forum] state’s long-arm statute and if the exercise of personal jurisdiction would not deny the defendant ] due process.

That is, personal jurisdiction exists over a nonresident “

2004-12-17

United States District Court for the Northern District of Ohio

Kemper v. Saline Lectronics

Kemper v. Saline Lectronics, 348 F. Supp. 2d 897 (2004)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_30

the Ohio Supreme Court has ruled that the Ohio long-arm statute does not extend to the constitutional limits of the Due Process Clause

Bird v. Parsons, 289 F.3d 865, 871 (6th Cir.2002) (quoting Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 954 F.2d 1174, 1176 (6th Cir.1992)). Calphalon Corp. v. Rowlette, 228 F.3d 718, 721 (6th Cir.2000) (noting that “

2004-12-17

United States District Court for the Northern District of Ohio

Kemper v. Saline Lectronics

Kemper v. Saline Lectronics, 348 F. Supp. 2d 897 (2004)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_14

traditional notions of fair play and substantial justice.

Nevertheless, in evaluating whether personal jurisdiction is proper under Ohio’s long-arm statute, we have consistently focused on whether there are sufficient minimum contacts between the nonresident defendant and the forum state so as not to offend “

2004-12-17

United States District Court for the Northern District of Ohio

Kemper v. Saline Lectronics

Kemper v. Saline Lectronics, 348 F. Supp. 2d 897 (2004)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_4

General jurisdiction is proper only where ‘a defendant’s contacts with the forum state are of such a continuous and systematic nature that the state may exercise personal jurisdiction over the defendant even if the action is unrelated to the defendant’s contacts with the state.’

Id. (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)); Cole v. Mileti, 133 F.3d 433, 436 (6th Cir.1998) (addressing the due process concerns rather than inquiring into the propriety of jurisdiction under Ohio’s long-arm statute). Bird, 289 F.3d at 871-72. Personal jurisdiction may be based on either general or specific jurisdiction. “General jurisdiction is proper only where ‘a defendant’s contacts with the forum state are of such a continuous and systematic nature that the state may exercise personal jurisdiction over the defendant even if the action is unrelated to the defendant’s contacts with the state.

2004-12-17

United States District Court for the Northern District of Ohio

Kemper v. Saline Lectronics

Kemper v. Saline Lectronics, 348 F. Supp. 2d 897 (2004)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_25

where a State exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant’s contacts with the forum.

In contrast, specific jurisdiction is proper under circumstances “

2003-05-05

United States Court of Appeals for the Sixth Circuit

Bridgeport Music, Inc. v. Still N the Water Publishing

Bridgeport Music, Inc. v. Still N the Water Publishing, 327 F.3d 472 (2003)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_1

Where a federal court’s subject matter jurisdiction over a case stems from the existence of a federal question, personal jurisdiction over a defendant exists ‘if the defendant is amenable to service of process under the [forum] state’s long-arm statute and if the exercise of personal jurisdiction would not deny the defendant ] due process.’

” Tobin v. Astra Pharm. Prods., Inc., 993 F.2d 528 (6th Cir.1998) (citing Burger King Corp. v. Rudewicz, 471 U.S. 462, 471-72, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). As a question of law, this Court reviews de novo the district court’s determination as to personal jurisdiction. Personal Jurisdiction Standard “Where a federal court’s subject matter jurisdiction over a case stems from the existence of a federal question, personal jurisdiction over a defendant exists ‘if the defendant is amenable to service of process under the [forum] state’s long-arm statute and if the exercise of personal jurisdiction would not deny the defendant ] due process.

2003-05-05

United States Court of Appeals for the Sixth Circuit

Bridgeport Music, Inc. v. Still N the Water Publishing

Bridgeport Music, Inc. v. Still N the Water Publishing, 327 F.3d 472 (2003)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_36

operation of an Internet website can constitute the purposeful availment of the privilege of acting in a forum state under the first Mohasco factor ‘if the website is interactive to a degree that reveals specifically intended interaction with residents of the state.’

Based on the foregoing, we cannot find that NTW’s “prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing” support a finding of purposeful availment. Internet sales In this Circuit, “operation of an Internet website can constitute the purposeful availment of the privilege of acting in a forum state under the first Mohasco factor ‘if the website is interactive to a degree that reveals specifically intended interaction with residents of the state.

2003-05-05

United States Court of Appeals for the Sixth Circuit

Bridgeport Music, Inc. v. Still N the Water Publishing

Bridgeport Music, Inc. v. Still N the Water Publishing, 327 F.3d 472 (2003)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_36

operation of an Internet website can constitute the purposeful availment of the privilege of acting in a forum state under the first Mohasco factor ‘if the website is interactive to a degree that reveals specifically intended interaction with residents of the state.’

Id. at 544. In the instant action, DM does not explicitly admit that it affirmatively required Ryco to distribute its records throughout the foregoing territory. However, DM does admit, via deposition testimony of DM’s president Mark Watson, that his un-. derstanding was that DM’s recordings would be distributed nationwide, “in all 50 states” pursuant to the parties’ agreement. J.A. 71. The language in the DM-Ryeo agreement is nearly identical to that in Tobin, and viewing the facts in a light most favorable to Appellants, the Court finds that the foregoing supports a prima facie purposeful availment finding. b. DM’s website and internet sales As further support for a finding of purposeful' availment, Bridgeport notes that DM operates a website, dmrecords.com, through which users can access DM’s catalog and purchase DM’s records. As indicated supra, “operation of an Internet website can constitute the purposeful availment of the privilege of acting in a forum state under the first Mohasco factor ‘if the website is interactive to a degree that reveals specifically intended interaction with residents of the state.

2003-05-05

United States Court of Appeals for the Sixth Circuit

Bridgeport Music, Inc. v. Still N the Water Publishing

Bridgeport Music, Inc. v. Still N the Water Publishing, 327 F.3d 472 (2003)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_11

that by maintaining a website on which Ohio residents can register domain names and by allegedly accepting the business of 4,666 Ohio residents, the Dotster defendants have satisfied the purposeful-availment requirement.

In Bird, the court concluded “

2003-05-05

United States Court of Appeals for the Sixth Circuit

Bridgeport Music, Inc. v. Still N the Water Publishing

Bridgeport Music, Inc. v. Still N the Water Publishing, 327 F.3d 472 (2003)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_37

must draw all permissible inferences in favor of Bird at this stage of the proceedings, because no evidentiary hearing or discovery has occurred,

The defendants in Bird operated a website through which users could register domain names and the plaintiff merely seized on defendants’ admission that they processed 333,333 Internet domain-name registrations. Plaintiffs then estimated a number of sales that were likely to have occurred in Ohio. According to Bird, 70% of the defendants’ sales occurred in the U.S. Specifically noting that it “

2003-08-29

United States District Court for the Southern District of Ohio

Logan Farms v. HBH, Inc. DE

Logan Farms v. HBH, Inc. DE, 282 F. Supp. 2d 776 (2003)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_48

We have recognized that Ohio’s long-arm statute is not coterminous with federal constitutional limits.

The dichotomy or bifurcation of the jurisdictional analysis becomes problematic in application because Federal Circuit law holds that Ohio’s long-arm statute does not reach the limits of the Due Process Clause, Hildebrand v. Steck Mfg. Co., 279 F.3d 1351, 1354 (Fed.Cir.2002), while the Sixth Circuit, in holdings which are confusing enough in themselves, has stated both that “[i]t is settled Ohio law that the transacting business clause of that statute was meant to extend to the limits of due process,” CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th Cir.1996), and that “

2003-08-29

United States District Court for the Southern District of Ohio

Logan Farms v. HBH, Inc. DE

Logan Farms v. HBH, Inc. DE, 282 F. Supp. 2d 776 (2003)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_38

causing tortious injury by an act or omission in this state

A court may exercise personal jurisdiction over a person who acts directly or by an agent, as to a cause of action arising from the person’s: (1) Transacting any business in this state; (2) Contracting to supply services or goods in this state; (3) Causing tortious injury by an act or omission in this state; (4) Causing tortious injury in this state by an act or omission outside this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state; (5) Causing injury in this state to any person by breach of warranty expressly or impliedly made in the sale of goods outside this state when he might reasonably have expected such person to use, consume, or be affected by the goods in this state, provided that he also regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state; (6) Causing tortious injury in this state to any person by an act outside this state committed with the purpose of injuring persons, when he might reasonably have expected that some person would be injured thereby in this state; (7) Causing tortious injury to any person by a criminal act, any element of which takes place in this state, which he commits or in the commission of which he is guilty of complicity. (8) Having an interest in, using, or possessing real property in this state; (9) Contracting to insure any person, property, or risk located within this state at the time of contracting. Ohio Rev.Code § 2307.382(A). Although there are many out-of-state defendants in this case, they all assert essentially the same arguments as to the alleged inapplicability of any of these subsections of the long-arm statute in this case. In opposition, Logan limits his discussion of the applicability of the long-arm statute to the Defendants to subsections (A)(1), (A)(3), and (A)(4). Accordingly, the Court concludes that the parties agree that subsections (A)(2) and (A)(5) through (A)(9) are not applicable to the Defendants in this case. Therefore, the Court likewise limits its analysis of the issue to subsections (A)(1), (A)(3), and (A)(4). The Court must interpret the Ohio long-arm statute in accordance with Ohio precedent. Hildebrand, 279 F.3d at 1354. In order for the “

2003-09-15

United States District Court for the Western District of Tennessee

Floratine Products Group, Inc. v. Brawley

Floratine Products Group, Inc. v. Brawley, 282 F. Supp. 2d 798 (2003)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_49

the court must construe the complaint in a light most favorable to the plaintiff, and accept all of [the] factual allegations as true.

Floradox, one of Plaintiffs products, is a turf chemical marketed exclusively through Plaintiff and its agents. Defendant Terrance Brawley is the President and sole owner of Defendant TBT. On or about April 3, 1991, TBT and Plaintiff allegedly entered into a distributor agreement, by which TBT distributed Plaintiffs products over a designated area of Florida. Brawley bought Plaintiffs stock in 1991 and retains approximately 3.6% of outstanding shares to date. Braw-ley was allegedly on Plaintiffs Board of Directors roughly two-thirds of the time between 1991 and 2002, including the 1999-2000 and 2001-2002 terms. Plaintiff and Defendant Brawley entered into Confídentiality/Non-Disclosure Agreements on or about October 21, 1998 and again on October 16, 1999. As a part of the agreements, Brawley agreed to keep confidential certain information of Plaintiffs, only to be used for the purpose of his business relationship with Plaintiff. The Confidentiality Agreements provide that any legal proceeding that relates or arises under the agreements shall be filed in a court of competent jurisdiction located in Shelby County, Tennessee. Plaintiff claims that Defendants breached the terms of the Confidentiality Agreements and diverted a corporate opportunity from Plaintiff. Generally, Plaintiff alleges that TBT sold a version of Flora-dox, although Plaintiff had exclusive rights to market and sell Floradox technology in the Florida markets. Plaintiff bases its allegations on the July 2002 statement of Kevin Cavanaugh, a golf course superintendent. Mr. Cavanaugh allegedly notified Plaintiffs employee that he had bought a less expensive, generic version of Floradox from TBT, though TBT had allegedly asked Mr. Cavanaugh not to tell Plaintiff that it was a generic version. Plaintiff also claims that Braw-ley violated his fiduciary duty to Plaintiff, which arose under his position on the board of directors. II. In considering a motion to dismiss, “

2003-09-15

United States District Court for the Western District of Tennessee

Floratine Products Group, Inc. v. Brawley

Floratine Products Group, Inc. v. Brawley, 282 F. Supp. 2d 798 (2003)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_47

need only make a prima facie showing of jurisdiction.

” Absent an evidentiary hearing on the issue of personal jurisdiction, the plaintiff “

2003-09-15

United States District Court for the Western District of Tennessee

Floratine Products Group, Inc. v. Brawley

Floratine Products Group, Inc. v. Brawley, 282 F. Supp. 2d 798 (2003)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_44

minimum contacts with [the state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’

” Id. (quoting Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 887 (6th Cir.2002)). A prima facie showing of jurisdiction may be established based upon the plaintiffs pleadings and affidavits. Bridgeport Music, Inc. v. Agarita Music, Inc., 182 F.Supp.2d 653, 657 (M.D.Tenn.2002). III. ANALYSIS A. Personal Jurisdiction Defendants argue that insufficient contacts exist with the forum state to allow the Court to exercise personal jurisdiction over Defendants because TBT is a corporation headquartered and doing business in Florida. When analyzing whether a court has personal jurisdiction over a defendant in a diversity action, it is “well-settled” that the court applies the jurisdictional law of the forum state. Poyner v. Erma Werke GmbH, 618 F.2d 1186, 1187 (6th Cir.1980). Accordingly, the Court looks to Tennessee state law to determine if the Court has personal jurisdiction over Brawley and TBT. The Tennessee long arm statute reads: (a) Persons who are nonresidents of Tennessee... and cannot be personally served with process within the state are subject to the jurisdiction of the court of this state as to any action or claim for relief arising from:... (5) Entering into a contract for services to be rendered or for materials to be furnished in this state. TenmCode Ann. § 20-2-214(a)(5) (2003). Although this statute reaches broadly, it must be applied in a manner that comports with the Due Process Clause of the Fourteenth Amendment. Before a defendant can be subjected to in personam jurisdiction, due process requires a defendant to have had “minimum contacts with [the state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.

2006-01-19

United States District Court for the Northern District of Ohio

Wuliger v. Positive Living Resources

Wuliger v. Positive Living Resources, 410 F. Supp. 2d 701 (2006)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_1

if the defendant is amenable to service of process under the [forum] state’s long-arm statute and if the exercise of personal jurisdiction would not deny the defendant ] due process.

Calphalon Corp. v. Rowlette, 228 F.3d 718, 721 (6th Cir.2000). That is, personal jurisdiction exists over a nonresident “

2006-01-19

United States District Court for the Northern District of Ohio

Wuliger v. Positive Living Resources

Wuliger v. Positive Living Resources, 410 F. Supp. 2d 701 (2006)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_30

the Ohio Su preme Court has ruled that the Ohio long-arm statute does not extend to the constitutional limits of the Due Process Clause

Bird v. Parsons, 289 F.3d 865, 871 (6th Cir.2002) (quoting Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 954 F.2d 1174, 1176 (6th Cir.1992)). Calphalon Corp. v. Rowlette, 228 F.3d 718, 721 (6th Cir.2000) (noting that “

2006-01-19

United States District Court for the Northern District of Ohio

Wuliger v. Positive Living Resources

Wuliger v. Positive Living Resources, 410 F. Supp. 2d 701 (2006)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_14

traditional notions of fair play and substantial justice.

Nevertheless, in evaluating whether personal jurisdiction is proper under Ohio’s long-arm statute, we have consistently focused on whether there are sufficient minimum contacts between the nonresident defendant and the forum state so as not to offend “

2006-01-19

United States District Court for the Northern District of Ohio

Wuliger v. Positive Living Resources

Wuliger v. Positive Living Resources, 410 F. Supp. 2d 701 (2006)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_4

General jurisdiction is proper only where ‘a defendant’s contacts with the forum state are of such a continuous and systematic nature that the state may exercise personal jurisdiction over the defendant even if the action is unrelated to the defendant’s contacts with the state.’

Id. (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)); Cole v. Mileti, 133 F.3d 433, 436 (6th Cir.1998) (addressing the due process concerns rather than inquiring into the propriety of jurisdiction under Ohio’s long-arm statute). Bird, 289 F.3d at 871-72. Personal jurisdiction may be based on either general or specific jurisdiction. “General jurisdiction is proper only where ‘a defendant’s contacts with the forum state are of such a continuous and systematic nature that the state may exercise personal jurisdiction over the defendant even if the action is unrelated to the defendant’s contacts with the state.

2006-01-19

United States District Court for the Northern District of Ohio

Wuliger v. Positive Living Resources

Wuliger v. Positive Living Resources, 410 F. Supp. 2d 701 (2006)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_25

where a State exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant’s contacts with the forum.

In contrast, specific jurisdiction is proper under circumstances “

2006-01-19

United States District Court for the Northern District of Ohio

Wuliger v. Positive Living Resources

Wuliger v. Positive Living Resources, 410 F. Supp. 2d 701 (2006)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_27

a defendant’s contacts with the forum state are related to the operative facts of the controversy, then an action will be deemed to have arisen from those contacts.

An understanding of this difference is important to the proper application of the “purposeful availment” test. In this instance, the communications between the viatical provider and Defendants and representations therein were the catalyst which led to transactions resulting in commission payments to the Defendants. Assuming the viatical provider completed the transaction and not paid the broker’s commission, Defendants arguably had an action against the viatical provider in the forum state of Ohio. Considering the representations upon which the viatical provider is alleged to have relied upon and the resulting purchase of policies, it cannot be said that the relationship between Defendants and forum state was random or attenuated. Rather, through its conduct and the commissions derived therefrom, the Defendants appear to have reaped benefits from the forum state as well as the protections of law therein. Under the second prong, where “

2006-01-19

United States District Court for the Northern District of Ohio

Wuliger v. Positive Living Resources

Wuliger v. Positive Living Resources, 410 F. Supp. 2d 701 (2006)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_22

the consequences of the act or breach caused by the defendant have a substantial enough connection with the forum state.

CompuServe, 89 F.3d at 1267. The third prong requires the Court to consider whether “

2006-01-19

United States District Court for the Northern District of Ohio

Wuliger v. Positive Living Resources

Wuliger v. Positive Living Resources, 410 F. Supp. 2d 701 (2006)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_57

the burden on the defendant, the interest of the forum state, the plaintiffs interest in obtaining relief, and the interest of other states in securing the most efficient resolution of controversies.

Factors which a trial court may consider include “

2007-08-23

United States District Court for the Southern District of Iowa

Brown ex rel. Rhiner v. Kerkhoff

Brown ex rel. Rhiner v. Kerkhoff, 504 F. Supp. 2d 464 (2007)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_16

any judicial district of the United States

In any action under section 1964 of this chapter in any district court of the United States in which it is shown that the ends of justice require that other parties residing in any other district be brought before the court, the court may cause such parties to be summoned, and process for that purpose may be served in any judicial district of the United States by the marshal thereof. (c) In any civil or criminal action or proceeding instituted by the United States under this chapter in the district court of the United States for any judicial district, subpenas [sic] issued by such court to compel the attendance of witnesses may be served in any other judicial district.... (d) All other process in any action or proceeding under this chapter may be served on any person in any judicial district in which such person resides, is found, has an agent, or transacts his affairs. 18 U.S.C. § 1965. b. Analysis. The Court must first decide whether RICO potentially confers jurisdiction by permitting service of process on the nonresident Defendants and, if so, must decide if the Court’s exercise of personal jurisdiction over the nonresident Defendants comports with the federal Constitution. There is considerable debate regarding whether section 1965(b) or (d) is a “statute of the United States” authorizing service of process on a nationwide basis for purposes of Federal Rule of Civil Procedure 4(k)(l)(D). If the Court relies on subsection (b), it follows that when raised in the proper venue, RICO allows personal jurisdiction in “

2007-08-23

United States District Court for the Southern District of Iowa

Brown ex rel. Rhiner v. Kerkhoff

Brown ex rel. Rhiner v. Kerkhoff, 504 F. Supp. 2d 464 (2007)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_36

interactive to a degree that reveals specifically intended interaction with residents of the state

Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 418 (9th Cir.1997). The “something more” has been shown upon an identification of contact sufficient to satisfy the Colder “effects” test. In the Sixth Circuit, the presence of a website that is “

2007-08-23

United States District Court for the Southern District of Iowa

Brown ex rel. Rhiner v. Kerkhoff

Brown ex rel. Rhiner v. Kerkhoff, 504 F. Supp. 2d 464 (2007)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_23

unless it appear[ed] beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

Before Bell Atlantic, a plaintiffs pleadings stated a claim upon which relief could be granted “

2006-02-16

United States Court of Appeals for the Sixth Circuit

Rice v. Karsch

Rice v. Karsch, 154 F. App'x 454 (2006)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_47

need only make a prima facie showing of jurisdiction.

The court held that Karsch’s contacts with Tennessee did not satisfy the jurisdictional requirements of the Due Process Clause of the Fourteenth Amendment because Karsch’s alleged misconduct occurred in Florida and was not purposefully directed into Tennessee. The District Court, as a result of the dismissal, denied the Plaintiffs-Appellants’ motion to amend the complaint against Karsch as futile. Plaintiffs-Appellants then filed a motion to alter or amend judgment, claiming that excusable neglect or mistake had led to the omission of evidence that Karsch’s e-mail to their broker at Paine Webber had been sent to the broker’s office in Jackson, Tennessee. The court found the motion was not timely under the ten-day limitation of Rule 59(e) and that the omission did not constitute excusable neglect under Rule 60. See Fed.R. Civ.P. 59(e), 60(b). This appeal followed. IV. JURISDICTION The District Court exercised jurisdiction over this civil matter pursuant to diversity of citizenship and the provisions of 28 U.S.C. § 1332. This Court has appellate jurisdiction under 28 U.S.C. § 1291. The Notice of Appeal was filed timely. V. DISCUSSION A. Motion to Dismiss 1. Standard of Review The court reviews de novo a district court’s dismissal of a complaint for lack of personal jurisdiction pursuant to Rule 12(b)(2).of the Federal Rules of Civil Procedure. See Bird v. Parsons, 289 F.3d 865, 871 (6th Cir.2002). The Plaintiffs-Appellants have the burden of establishing the District Court’s personal jurisdiction over Karsch. Because the District Court did not conduct an evidentiary hearing on the issue of personal jurisdiction in considering Karsch’s motion to dismiss pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, the Plaintiffs-Appellants “

2006-02-16

United States Court of Appeals for the Sixth Circuit

Rice v. Karsch

Rice v. Karsch, 154 F. App'x 454 (2006)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_14

would not offend traditional notions of fair play and substantial justice.

Personal jurisdiction comports with due process if Plaintiffs-Appellants can establish with reasonable particularity sufficient minimum contacts with Tennessee so that the exercise of jurisdiction over Karsch “

2006-02-16

United States Court of Appeals for the Sixth Circuit

Rice v. Karsch

Rice v. Karsch, 154 F. App'x 454 (2006)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_14

traditional notions of fair play and substantial justice

Examining the two pre-December 2000 communications at issue, the basis of the Plaintiffs-Appellants’ instant claims is that Karsch did not issue the Rule 144 letter. In other words, their main argument is that Karsch failed to act in a manner which would have subjected him to jurisdiction in Tennessee. Thus, to some extent, the Plaintiffs-Appellants’ position taken in the Complaint and in their response to Karsch’s motion to dismiss are contradictory. The only additional allegation, that Karsch refused to issue the Rule 144 letter to the transfer agent in New York, is inextricably linked to his representations to Rice that he had done so. Further, it is undisputed that all of Karsch’s communications sent into Tennessee prior to the filing of the Complaint were as a result of communications initiated by Rice, not by Karsch. Under these circumstances, the Court finds that personal jurisdiction would be improper. Moreover, Karsch’s phone, mail, and email contacts with Rice and Lowery in Tennessee occurred solely because Pagan Lewis Motors, although a Texas corporation, chose to have offices in Tennessee, not because Karsch sought to further his personal business or to create “continuous and substantial” consequences there. See, e.g., Calphalon Corp. v. Rowlette, 228 F.3d 718, 723 (6th Cir.2000). Karsch’s contacts were precisely the type of “random,” “fortuitous,” and “attenuated” contacts that the purposeful availment requirement is meant to prevent from causing jurisdiction. Id. In other words, what the case at bar comes down to, as we see it, is that Karsch, as an employee of Merehantonline.com, in response to correspondence from Rice and pursuant to the District Court’s order, engaged in several communications into Tennessee via telephone, mail and e-mail regarding the Rule 144 letter. To hold otherwise would be to offend the “

2004-01-08

United States District Court for the Western District of Wisconsin

HY Cite Corp. v. Badbusinessbureau.com, L.L.C.

HY Cite Corp. v. Badbusinessbureau.com, L.L.C., 297 F. Supp. 2d 1154 (2004)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_4

continuous and systematic general business contacts

”). Although I decline to adopt the Zippo test as a substitute for minimum contacts, this does not mean that a website’s level of interactivity is irrelevant in deciding whether the exercise of jurisdiction is appropriate. The website’s level of interactivity may be one component of a determination whether a defendant has availed itself purposefully of the benefits or privileges of the forum state. For example, a finding that a defendant uses its website to engage in repeated commercial transactions may support the exercise of personal jurisdiction, so long as there is a corresponding finding that the defendant is expressly targeting residents of the forum state and not just making itself accessible to everyone regardless of location. See, e.g., Bancroft & Masters, Inc. v. Augusta National, Inc., 223 F.3d 1082, 1087 (9th Cir.2000) (interactivity is insufficient by itself; there must be “express aiming” at forum state); B.E.E. International Ltd. v. Hawes, 267 F.Supp.2d 477, 484-85 (M.D.N.C.2003); Millennium Enterprises, 33 F.Supp.2d at 921; Hasbro, Inc. v. Clue Computing, Inc., 994 F.Supp. 34 (D.Mass.1997). However, the ultimate question remains the same, that is, whether the defendant’s contacts with the state are of such a quality and nature such that it could reasonably expect to be haled into the courts of the forum state. General Jurisdiction To meet the constitutional requirement for general jurisdiction, the defendant must have “

2003-03-19

United States District Court for the Northern District of Ohio

Ashton Park Apartments, Ltd. v. Lebor

Ashton Park Apartments, Ltd. v. Lebor, 252 F. Supp. 2d 539 (2003)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_1

if the defendant is amenable to service of process under the [forum] state’s long-arm statute and if the exercise of personal jurisdiction would not deny the defendant[] due process.

Calphalon Corp. v. Rowlette, 228 F.3d 718, 721 (6th Cir.2000). See also Nationwide Mut. Ins. Co. v. That is, personal jurisdiction exists over a nonresident “

2003-03-19

United States District Court for the Northern District of Ohio

Ashton Park Apartments, Ltd. v. Lebor

Ashton Park Apartments, Ltd. v. Lebor, 252 F. Supp. 2d 539 (2003)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_30

the Ohio Su preme Court has ruled that the Ohio long-arm statute does not extend to the constitutional limits of the Due Process Clause

Bird v. Parsons, 289 F.3d 865, 871 (6th Cir.2002) (quoting Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 954 F.2d 1174, 1176 (6th Cir.1992)). Calphalon Corp. v. Rowlette, 228 F.3d 718, 721 (6th Cir.2000) (noting that “

2003-03-19

United States District Court for the Northern District of Ohio

Ashton Park Apartments, Ltd. v. Lebor

Ashton Park Apartments, Ltd. v. Lebor, 252 F. Supp. 2d 539 (2003)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_14

traditional notions of fair play and substantial justice.

Nevertheless, in evaluating whether personal jurisdiction is proper under Ohio’s long-arm statute, we have consistently focused on whether there are sufficient minimum contacts between the nonresident defendant and the forum state so as not to offend “

2003-03-19

United States District Court for the Northern District of Ohio

Ashton Park Apartments, Ltd. v. Lebor

Ashton Park Apartments, Ltd. v. Lebor, 252 F. Supp. 2d 539 (2003)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_4

General jurisdiction is proper only where ‘a defendant’s contacts with the forum state are of such a continuous and systematic nature that the state may exercise personal jurisdiction over the defendant even if the action is unrelated to the defendant’s contacts with the state.’

Id. (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)); Cole v. Mileti, 133 F.3d 433, 436 (6th Cir.1998) (addressing the due process concerns rather than inquiring into the propriety of jurisdiction under Ohio’s long-arm statute). Bird, 289 F.3d at 871-72. Personal jurisdiction may be based on either general or specific jurisdiction. “General jurisdiction is proper only where ‘a defendant’s contacts with the forum state are of such a continuous and systematic nature that the state may exercise personal jurisdiction over the defendant even if the action is unrelated to the defendant’s contacts with the state.

2003-03-19

United States District Court for the Northern District of Ohio

Ashton Park Apartments, Ltd. v. Lebor

Ashton Park Apartments, Ltd. v. Lebor, 252 F. Supp. 2d 539 (2003)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_25

where a State exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant’s contacts with the forum.

In contrast, specific jurisdiction is proper under circumstances “

2003-03-19

United States District Court for the Northern District of Ohio

Ashton Park Apartments, Ltd. v. Lebor

Ashton Park Apartments, Ltd. v. Lebor, 252 F. Supp. 2d 539 (2003)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_38

causes tortious injury by an act or omission in this state

Granted, Epstein asserts in his memorandum in support of his motion to dismiss, and reply, that he did perform legal services and that his role in the transaction at issue was limited to that of MKD’s attorney. He contends that he was merely responsible for drafting the closing documents, that his involvement began only after Ashton Park and MKD completed negotiations, and that his communications were limited to Plaintiffs attorney via telephone and mail from New York. These assertions are not supported by way of affidavit or otherwise. Moreover, as set forth in Plaintiffs Complaint, the quality and character of Epstein’s contacts, and role in the transaction with Ashton Park are distinguishable from those attorneys in Hatem, Friedman and Goldstein. He is purported to be both an owner of MKD as well as MKD’s attorney. The Court is unable to delineate between his contacts with Ashton Park in these different roles, especially in light of the intimate role and the nature of the communications Ashton Park alleges in its Complaint. Therefore, exercising personal jurisdiction over Epstein is appropriate. 2. Ohio Long-Arm Statute The Court now considers whether Epstein is subject to specific jurisdiction under the Ohio long-arm statute. O.R.C. § 2307.382. Specifically, his alleged fraudulent communications satisfy O.R.C. § 2307.382(A)(6), which states in pertinent part: (A) Causing tortious injury in this state to any person by an act outside this, state committed with the purpose of injuring persons, when he might reasonably have expected that some person would be injured thereby in this state[J See also FRC, 2002 WL 31086104, at *4, 5, 2002 U.S. Dist, LEXIS 17559, at *11, 15 (holding that the alleged fraudulent communications satisfy the “

2003-03-19

United States District Court for the Northern District of Ohio

Ashton Park Apartments, Ltd. v. Lebor

Ashton Park Apartments, Ltd. v. Lebor, 252 F. Supp. 2d 539 (2003)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_0

[a]n inference arises that the third [Mohasco] factor is satisfied if the first two requirements are met.

The affidavit attached to Plaintiffs motion fails to identify property, assets or “debts” over which the Court has jurisdiction to issue an order of attachment. A Statement of Financial Condition of Avram Le-bor accompanying the motion and affidavit is no more revealing. Thus, Plaintiffs motion for prejudgment attachment is denied. Conclusion For the reasons stated above, Defendant Epstein’s motion to dismiss for lack of personal jurisdiction (Doc. No. 10) is denied. Plaintiffs motion for prejudgment attachment (Doc. No. 27) is also denied. IT IS SO ORDERED. 1 . Pursuant to Fed.R.Civ.P. 41(a), Plaintiff voluntarily dismissed without prejudice its claims against Defendants Genia and Ury Ra-poport, Multi Factoring AG, Transpacific Gas, LTD, Treucom AG, Radius Capital, LTD., and Mohan Kumar d/b/a Kedia Power. (Docs. Nos. 36 & 37). The Court also granted Defendant Flower.Com’s motion for a stay by operation of 11 U.S.C. § 362. (Doc. No. 46). 2 . The Court notes that Plaintiff’s Complaint also alleges that the Defendants, including Epstein, have violated RICO, which provides a broader test of personal jurisdiction than that-provided for in Mohasco. FRC Int’l v. Taifun Feuerloschgeratebau und Vertriebs GmbH, No. 3:01 CV 7533, 2002 WL 31086104, at *6, 2002 U.S. Dist. LEXIS 17559, at *18 n. 1 (N.D.Ohio Sept.4, 2002) (citing Suarez v. McGraw, 71 F.Supp.2d 769, 777 (N.D.Ohio 1999)). 3 . Plaintiff initially failed to attach several documents in support of the allegations contained in the Complaint, but has subsequently filed these documents. (Doc. No. 26). While Epstein may not have had access to these documents before filing his motion, he did have the benefit of their use in filing his reply. 4 . Neither Epstein nor Plaintiff has requested jurisdictional discovery or an evidentiary hearing. Indeed "

2004-12-21

United States District Court for the Southern District of Ohio

Savannah College of Art & Design, Inc. v. Houeix

Savannah College of Art & Design, Inc. v. Houeix, 369 F. Supp. 2d 929 (2004)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_21

on or in connection with any goods or services, ... uses in commerce any word, term; name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact

U.S. Structures, Inc. v. J.P. Structures, Inc., 130 F.3d 1185, 1188 (6th Cir.1997). The Lanham Act provides, in relevant part: Any person who shall, without the consent of the registrant— (a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person... shall be liable in a civil action by the registrant!)] 15 U.S.C. § 1114(l)(a). To establish its unfair competition claim, Savannah College must show that Houeix “on or in connection with any goods or services,... uses in commerce any word, term; name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact” in a manner that is “likely to cause confusion....”

2004-12-21

United States District Court for the Southern District of Ohio

Savannah College of Art & Design, Inc. v. Houeix

Savannah College of Art & Design, Inc. v. Houeix, 369 F. Supp. 2d 929 (2004)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_52

in connection with the sale, offering for sale, distribution, or advertising

To establish its unfair competition claim, Savannah College must show that Houeix “on or in connection with any goods or services,... uses in commerce any word, term; name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact” in a manner that is “likely to cause confusion....” 15 U.S.C. § 1125(a)(1)(A). See Bird v. Parsons, 289 F.3d 865, 877 (6th Cir.2002). Thus, to prevail on its trademark infringement and unfair competition claims, Savannah College must establish: (1) that it possesses a mark; (2) that Houeix uses the mark; (3) that Houeix’s use of the mark occurs “in commerce;” (4) that Houeix’s uses the mark “

2004-12-21

United States District Court for the Southern District of Ohio

Savannah College of Art & Design, Inc. v. Houeix

Savannah College of Art & Design, Inc. v. Houeix, 369 F. Supp. 2d 929 (2004)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_52

in connection with the sale, offering for sale, distribution, or advertising of any goods or services

Cable News Network L.P., L.L.L.P. v. CNNews.com, 177 F.Supp.2d 506, 517-518, n. 25 (E.D.Va.2001), aff'd in part and rev’d in part on other grounds, 56 Fed.Appx. 599, 2003 WL 152846 (4th Cir.2003), citing Planetary Motion, 261 F.3d at 1194-95 (holding that the distribution of software for end-users over the Internet satisfies the “use in commerce” jurisdictional predicate); Planned Parenthood Fed’n of Am., Inc. v. Bucci, 1997 WL 133313, * 3 (S.D.N.Y.1997) (holding that “[t]he nature of the Internet indicates that establishing a typical home page on the Internet, for access to all users would satisfy the Lanham Act’s ‘in commerce’ requirement”), aff'd, 152 F.3d 920, 1998 WL 336163 (2d Cir.), cert. denied, 525 U.S. 834, 119 S.Ct. 90, 142 L.Ed.2d 71 (1998). In connection with the sale, offering for sale, distribution, or advertising of any goods or services A central issue in this case is whether Houeix’s use of the SCAD mark in the domain names scad.info and scad- and-us.info is “

2004-12-21

United States District Court for the Southern District of Ohio

Savannah College of Art & Design, Inc. v. Houeix

Savannah College of Art & Design, Inc. v. Houeix, 369 F. Supp. 2d 929 (2004)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_52

in connection with the sale, offering for sale, distribution, or advertising of any goods or services

In connection with the sale, offering for sale, distribution, or advertising of any goods or services A central issue in this case is whether Houeix’s use of the SCAD mark in the domain names scad.info and scad- and-us.info is “in connection with the sale, offering for sale, distribution, or advertising of any goods or services” for purposes of the Lanham Act. Savannah College contends that Houeix uses the SCAD mark in connection with the advertising or sale of goods and services in at least three ways: (1) he advertises the goods and services of third parties on his web site in the form of banner ads and links to third party commercial websites; (2) he has prevented others from reaching Savannah College’s web site; and (3) Houeix’s sites are designed to harm Savannah College commercially. Houeix argues that he does not sell or promote services or products on his websites, nor do his sites contain advertisements or commercial promotions. The Court’s analysis of whether Houeix’s use of the SCAD mark in the domain names scadinfo and scad-and-us. info is “

2004-12-21

United States District Court for the Southern District of Ohio

Savannah College of Art & Design, Inc. v. Houeix

Savannah College of Art & Design, Inc. v. Houeix, 369 F. Supp. 2d 929 (2004)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_52

in connection with the sale ... or advertising of any goods or services.

For example, clicking on the link “For foreign students seeking information on U.S. Colleges and Universities” on Houeix’s website leads to the WorldStu-dent.com website “Features” page entitled “The Importance of Accreditation.” (Plaintiffs Trial Exhibit 46). The WorldStudent accreditation web page has a right frame with blinking variable buttons, some of which have the logos and names of foreign schools or businesses. Savannah College argues that these blinking buttons are advertisements for different schools or businesses and, as such, make Houeix’s use of the SCAD mark “in connection with the advertising” of the services or goods sold by the advertisers. Houeix concedes that clicking on one of these blinking buttons may lead to an, advertisement. (Doc. 70, Proposed Finding of Fact # 24). Likewise, clicking on the groups.yahoo/students forum link leads to a YahoolGroups forum page where Internet users can post messages for other Internet users to view. These pages in turn contain links for advertisements for third party products and services. (See Plaintiffs Trial Exhibits P-53, P-54 and P-84). Plaintiffs Trial Exhibit 54 is a copy of a yahoo student forum page which contains a box conspicuously labeled “advertisement” for “LifeScript” vitamins. The issue then becomes whether the two step process to reach the commercial content or advertisements on these web pages is sufficient to make Houeix’s use of the SCAD mark one “in connection with the sale... or advertising of any goods or services.

2004-12-21

United States District Court for the Southern District of Ohio

Savannah College of Art & Design, Inc. v. Houeix

Savannah College of Art & Design, Inc. v. Houeix, 369 F. Supp. 2d 929 (2004)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_52

in connection with the sale ... or advertising of any goods or services,

While the Sixth Circuit has recognized that registering a domain name that includes a valid trademark with the intent to profit through reselling the domain name to the trademark’s owner may constitute a commercial use under the Lanham Act, such instances are limited to where the defendant made a habit and business practice of such practices. Taubman, 319 F.3d at 776, citing E & J Gallo Winery v. Spider Webs Ltd., 286 F.3d 270, 270 (5th Cir.2002) (noting that defendant had made a business practice of selling domain names on eBay for no less than $10,000); Panavision International, L.P. v. Toeppen, 141 F.3d 1316 (9th Cir.1998). There is no evidence here that Houeix has attempted to sell the scad.info domain name to Savannah College. Therefore, the Court concludes that Houeix’s use of the SCAD mark in his domain names is not in connection with the sale or advertisement of goods and services within the meaning of the Lanham Act. Since Houeix’s use of the SCAD mark is not in connection with the sale or advertisement of goods or services, Savannah College’s trademark infringement and unfair competition claims must be dismissed. Assuming, arguendo, that Houeix’s use of the SCAD mark is considered commercial speech, i.e., “in connection with the sale... or advertising of any goods or services,” the Court finds such use is not likely to cause confusion in the minds of consumers about the origin of the information contained in Houeix’s websites as explained below.

2004-12-21

United States District Court for the Southern District of Ohio

Savannah College of Art & Design, Inc. v. Houeix

Savannah College of Art & Design, Inc. v. Houeix, 369 F. Supp. 2d 929 (2004)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_56

The touchstone of liability under § 1114 is whether the defendant’s use of the disputed mark is likely to cause confusion among consumers regarding the origin of the goods offered by the parties.

KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., - U.S. -, 125 S.Ct. 542, 547-48, 160 L.Ed.2d 440 (2004). Bird, 289 F.3d at 877, citing Daddy’s Junky Music Stores, Inc. v. Big Daddy’s Family Music Ctr., 109 F.3d 275, 280 (6th Cir.1997) (“

2005-03-31

United States District Court for the Southern District of Ohio

Curcio Webb LLC v. National Benefit Programs Agency, Inc.

Curcio Webb LLC v. National Benefit Programs Agency, Inc., 367 F. Supp. 2d 1191 (2005)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_23

unless it appears beyond doubt that the [p]laintiff can prove no set of facts in support of his claim which would entitle him to relief.

Morgan v. Church’s Fried Chicken, 829 F.2d 10, 11 (6th Cir.1987) (finding “[wjhere the Rule 12(b)(6) defense is raised by a Rule 12(c) motion for judgment on the pleadings, we must apply the stan dard for a Rule 12(b)(6) motion in reviewing the district court’s decision”). In considering a Rule 12(b)(6) motion to dismiss, the Court is limited to evaluating whether a plaintiffs complaint sets forth allegations sufficient to make out the elements of a cause of action. A complaint should not be dismissed under Rule 12(b)(6) “

2005-03-31

United States District Court for the Southern District of Ohio

Curcio Webb LLC v. National Benefit Programs Agency, Inc.

Curcio Webb LLC v. National Benefit Programs Agency, Inc., 367 F. Supp. 2d 1191 (2005)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_6

‘the key question in cases where a plaintiff alleges trademark infringement [15 U.S.C. § 1114] and unfair competition [15 U.S.C. § 1125(a) ] is whether the defendant’s actions create a likelihood of confusion as to the origin of the parties’ goods or services.’

Nevertheless, the Court finds that though Plaintiff would likely not be entitled to a permanent injunction with respect to its Proposal Document because that document is no longer a trade secret, if Defendant currently possesses other confidential, proprietary, or trade secret information, this Court would be empowered to enjoin Defendant from disclosing or using such information on a permanent basis. Based on the foregoing reasons, Defendant’s Motion with respect to dismissal of Plaintiffs statutory trade secret misappropriation claim under Count III of the Complaint, is DENIED. D. Count IV — Unfair Competition and Misappropriation under 15 U.S.C. § 1125(a) and Common Law In its Motion for Judgment on the Pleadings, Defendant contends that although it does not understand what Plaintiffs position is in Count IV (unfair competition and misappropriation), Plaintiff is not entitled to recover either attorney’s fees or punitive damages. (Def.’s Reply Mem. at 11, 13). Yet, in its Reply Memorandum, Defendant crafts additional arguments regarding Count IV, which the Court finds necessary to address prior to its consideration of Plaintiffs right to recover attorney’s fees and/or punitive damages. First, according to Defendant, Plaintiffs assertion that its unfair competition and misappropriation claims are derived from Defendant’s alleged copying of Plaintiffs Proposal Document does not create a basis for a Lanham Act claim. Defendant argues that, based on Bird v. Parsons, 289 F.3d 865 (6th Cir.2002), “ ‘the key question in cases where a plaintiff alleges trademark infringement [15 U.S.C. § 1114] and unfair competition [15 U.S.C. § 1125(a) ] is whether the defendant’s actions create a likelihood of confusion as to the origin of the parties’ goods or services.

2005-03-31

United States District Court for the Southern District of Ohio

Curcio Webb LLC v. National Benefit Programs Agency, Inc.

Curcio Webb LLC v. National Benefit Programs Agency, Inc., 367 F. Supp. 2d 1191 (2005)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_21

any word, name, symbol, or device, or any combination thereof

Donchez v. Coors Brewing Co., 392 F.3d 1211, 1216 (10th Cir.2004) (quoting Lane Capital Mgmt., Inc. v. Lane Capital Mgmt., Inc., 192 F.3d 337, 344 (2d Cir.1999)). Also, marks are often classified in categories of (1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; or (5) fanciful. Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992). Suggestive, arbitrary, and fanciful marks are inherently distinctive and receive Lanham Act protection without proof of secondary meaning. New York Racing Ass’n v. Perlmutter Publ., Inc., 959 F.Supp. 578, 580 (N.D.N.Y.1997). Descriptive marks attain Lanham Act protection only if the mark has acquired secondary meaning. Id. Finally, generic marks are never protected under the Lanham Act. A "trademark” includes; "

2006-02-03

United States District Court for the Western District of Tennessee

Caboodles Cosmetics, Ltd. Partnership v. Caboodles, LLC

Caboodles Cosmetics, Ltd. Partnership v. Caboodles, LLC, 412 F. Supp. 2d 872 (2006)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_49

the court must construe the complaint in a light most favorable to the plaintiff, and accept all of [the] factual allegations as true.

Def.’s Answer and Countercl. ¶ 17. Plaintiffs and Buyer met in Memphis, Tennessee on October 11, 2004, to discuss Buyer’s claim for indemnity. Id. Buyer submitted a written claim on March 9, 2005. Id. On March 18, 2005, Plaintiffs rejected the claim. Id. Caboodles Tennessee alleges that it has incurred damages in the amount of $3,707,295.53 and is entitled to a set off of $1,370,933.39. Def.’s Answer and Countercl. ¶ 18. Further, Caboodles Tennessee alleges that it is entitled to recover $2,336,295.53 from Caboodles Nevada as its indemnity claim. Id. As a result of the inaccurate financial information, Caboodles Tennessee alleges total damages of at least $12,311,706.87 including its initial purchase of Caboodles Nevada and its additional capital needs. Def s Answer and Counterel. ¶ 20. On March 8, 2005 Plaintiffs filed the original complaint alleging a claim for relief under the Lanham Act 15 U.S.C. §§ 1051 et. seq. On March 30, 2005 Buyer filed its answer and counterclaim against Plaintiffs, Mann, and Henning. Henning filed the instant motion to dismiss on May 31, 2005. Buyer filed its response on July 18, 2005. For the foregoing reasons, the Court denies in part and grants in part Counter-Defendant’s motion to dismiss. II. 12(b)(2) In considering a motion to dismiss, “

2006-02-03

United States District Court for the Western District of Tennessee

Caboodles Cosmetics, Ltd. Partnership v. Caboodles, LLC

Caboodles Cosmetics, Ltd. Partnership v. Caboodles, LLC, 412 F. Supp. 2d 872 (2006)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_47

need only make a prima facie showing of jurisdiction.

Absent an evidentiary hearing on the issue of personal jurisdiction, the plaintiff “

2006-02-03

United States District Court for the Western District of Tennessee

Caboodles Cosmetics, Ltd. Partnership v. Caboodles, LLC

Caboodles Cosmetics, Ltd. Partnership v. Caboodles, LLC, 412 F. Supp. 2d 872 (2006)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_44

minimum contacts with [the state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’

Id. (quoting Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 887 (6th Cir.2002)). A prima facie showing of jurisdiction may be established based upon the plaintiffs pleadings and affidavits. Bridgeport Music, Inc. v. Agarita Music, Inc., 182 F.Supp.2d 653, 657 (M.D.Tenn.2002). III. ANALYSIS Henning argues that he acted in his capacity as an officer for Seller and that insufficient contacts exist within the forum state to allow the Court to exercise personal jurisdiction over him. When analyzing whether a court has personal, jurisdiction over- a defendant, it is “well-settled” that the court applies the jurisdictional law of the forum state. Poyner v. Erma Werke GmbH, 618 F.2d 1186, 1187 (6th Cir.1980). Accordingly, the Court looks to Tennessee state law to determine if the Court has personal jurisdiction Henning. The Tennessee long arm statute reads: (a) Persons who are nonresidents of Tennessee... and cannot be personally served with process within the state are subject to the jurisdiction of the courts of this state as to any action or claim' for relief arising from:... (1) The tráhsaction of any business within the state; (2) Any tortious act or omission within this state;... (4) Entering into any contract of insurance, indemnity, or guaranty covering any person, property, or risk located within this state at the time of contracting. Tenn.Code Ann. § 20-2-214(a)(l)(2)(4) (2005). Although this statute reaches broadly, it must be applied in a manner that comports with the Due Process Clause of the Fourteenth Amendment. Before a defendant can be subjected to in personam jurisdiction, due process requires-a defendant to have had “minimum contacts with [the state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.

2005-11-09

United States District Court for the Middle District of Tennessee

Kelly v. International Capital Resources, Inc.

Kelly v. International Capital Resources, Inc., 231 F.R.D. 502 (2005)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_25

a State exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant’s contacts with the forum.

Youn, 324 F.3d at 417 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)); see also Neogen, 282 F.3d at 889. The Supreme Court distinguishes between “general” jurisdiction and “specific” jurisdiction, either of which can be a basis for personal jurisdiction. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); see also Youn, 324 F.3d at 417; Bridgeport Music, 327 F.3d at 477. General jurisdiction is present when a defendant’s contacts with the forum state are “substantial” and “continuous and systematic,” such that a state may exercise personal jurisdiction over a defendant in a suit not arising out of or related to the defendant’s contacts with the forum. Specific jurisdiction is when “

2005-11-09

United States District Court for the Middle District of Tennessee

Kelly v. International Capital Resources, Inc.

Kelly v. International Capital Resources, Inc., 231 F.R.D. 502 (2005)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_27

[i]f a defendant’s contacts with the forum state are related to the operative facts of the controversy, then an action will be deemed to have arisen from those contacts.

After Kelly agreed to the arrangement, while on the telephone in Tennessee, it is undisputed that defendants sent to Kelly in Tennessee business cards with ICR’s logo and contact information in New York, as well as Kelly’s name and contact information in Tennessee. In addition, Amerling, on behalf of ICR, traveled to Tennessee on two occasions, meeting with the plaintiff both times, once in connection with a deal involving another Tennessee corporation that, at the time of Amerling’s visit, employed the plaintiff, and once in connection with the Western Express deal. According to the plaintiff, during the Western Express meeting, Amerling and Kelly discussed the ongoing progress of the Western Express deal and Kelly’s contacts on behalf of ICR with the president of Western Express, Wayne Wise. Subsequently, ICR obtained a significant commission from Western Express, allegedly as a result of plaintiffs activities in Tennessee in connection with the agreement and/or in reliance upon defendants’ fraudulent misrepresentations. Under these facts, the court finds that the defendants have purposefully availed themselves of the privilege of conducting activities within the state of Tennessee and that their relationship with Tennessee is not, contrary to the defendants’ assertions, based on the unilateral actions of the plaintiff. Rather, defendants, through its communications with plaintiff, intentionally and freely established its intention to continually solicit business from the Tennessee transportation company market (the foreseeable consequences of which have a direct impact on the commerce of Tennessee) and created a continuing obligation in Tennessee by agreeing to pay plaintiff, a Tennessee resident, one-half of any commission received by clients brought to ICR by Kelly through his work in Tennessee. (b) Cause of Action The Sixth Circuit has observed that, “

2005-11-09

United States District Court for the Middle District of Tennessee

Kelly v. International Capital Resources, Inc.

Kelly v. International Capital Resources, Inc., 231 F.R.D. 502 (2005)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_57

the burden on the defendant, the interest of the forum state, the plaintiffs interest in obtaining relief, and the interest of other states in securing the most efficient resolution of controversies.

Here, plaintiff has sufficiently established that his fraud-based claims “arose out of’ the defendants’ activities in Tennessee, since the operative facts of the alleged fraud are related to the defendants’ in-state activities. Plaintiffs affidavits and pleadings allege that Amerling contacted Kelly in Tennessee and falsely represented that ICR would pay Kelly for services to be rendered in Tennessee. Thereafter, defendants sent Kelly business cards in Tennessee and met with Kelly in Tennessee, further inducing reliance upon these allegedly false representations. Because the defendants’ contacts with the forum state are not insubstantial, Kelly need not show that the actual misrepresentations themselves were made in Tennessee. In the court’s view, the plaintiff has amply shown that the fraud at issue in the instant case “arose out of’ the defendants’ activities in Tennessee. Reasonableness of Exercise of Jurisdiction In analyzing the third Mohasco requirement — which asks whether the acts of the defendant or consequences caused by the defendant have a substantial connection with the forum state so as to make the exercise of jurisdiction over the defendant reasonable— courts are directed to consider several factors, including “

2015-06-17

United States District Court for the District of Massachusetts

Hilsinger Co. v. FBW Investments, LLC

Hilsinger Co. v. FBW Investments, LLC, 109 F. Supp. 3d 409 (2015)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_44

such that maintenance of the suit does not offend traditional notions of fair play and substantial justice.

Standard of Review The exercise of personal jurisdiction over a defendant must be authorized by statute and consistent with the due process requirements of the United States Constitution. Nowak v. Tak How Invs., Ltd., 94 F.3d 708, 712 (1st Cir.1996); Intech, Inc. v. Triple “C” Marine Salvage, Inc., 444 Mass. 122, 125, 826 N.E.2d 194 (2005); Good Hope Indus., Inc. v. Ryder Scott, Co., 378 Mass. 1, 5-6, 389 N.E.2d 76 (1979). Furthermore, [a] district court may exercise authority over a defendant by virtue of either general or specific jurisdiction. Specific jurisdiction exists when there is a demonstrable nexus between a plaintiffs claims and a defendant’s forum-based activities. General jurisdiction exists when the litigation is not directly founded on the defendant’s forum-based contacts, but the defendant has nevertheless engaged in continuous and systematic activity, unrelated to the suit, in the forum state. Swiss Am. Bank, 274 F.3d at 618 (citations omitted) (internal quotation marks omitted). To establish personal jurisdiction, plaintiff must show that the requirements of the Massachusetts long-arm statute, Mass. Gen. Laws ch. 223A, § 3, are satisfied, and that the exercise of jurisdiction is consistent with constitutional due process. Daynard, 290 F.3d at 52; Boit, 967 F.2d at 675; Intech, Inc. v. Triple “C” Marine Salvage, Inc., 444 Mass. 122, 125, 826 N.E.2d 194 (2005). The Supreme Judicial Court has interpreted the long-arm statute as extending as broadly as to the limits of constitutional due process. Daynard, 290 F.3d at 52; “Automatic” Sprinkler Corp. of America v. Seneca Foods Corp., 361 Mass. 441, 443, 280 N.E.2d 423 (1972). Due process requires that a defendant over whom a Massachusetts court will exercise jurisdiction has maintained “minimum contacts” with the state “

2015-06-17

United States District Court for the District of Massachusetts

Hilsinger Co. v. FBW Investments, LLC

Hilsinger Co. v. FBW Investments, LLC, 109 F. Supp. 3d 409 (2015)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_29

defendants’ acts ... allegedly ‘caused tortious injury in Ohio,’ because violations of federal trademark law are analogous to tort cases

” (citing Venture Tape Corp. v. McGills Glass Warehouse, 292 F.Supp.2d 230, 233 (D.Mass.2003)); Digital Equip. Corp. v. AltaVista Tech., Inc., 960 F.Supp. 456, 470 (D.Mass.1997)); Bose Corp. v. Neher, 2010 WL 3814886 (D.Mass. July 30, 2010) (finding that because “trademark infringement injury occurs in the state where the trademark owner resides,” purposeful availment prong is met when plaintiff alleges defendant committed trademark infringement against a Massachusetts company); see also Bird v. Parsons, 289 F.3d 865, 876 (6th Cir.2002) (finding that Ohio long-arm statute authorizes personal jurisdiction over defendants where “defendants’ acts... allegedly ‘caused tortious injury in Ohio,’ because violations of federal trademark law are analogous to tort cases”); Panavision Int’l, L.P. v. Toeppen, 141 F.3d 1316, 1321 (9th Cir.1998) (applying Calder effects test to trademark infringement action because “the present case is akin to a tort case”); Dakota Industries, Inc. v. Dakota Sportswear, Inc., 946 F.2d 1384, 1389-91 (8th Cir.1991) (“Like Calder, this case involves intentional tortious wrongdoing — namely, the use of the trademark with knowledge of the infringement.

2015-06-17

United States District Court for the District of Massachusetts

Hilsinger Co. v. FBW Investments, LLC

Hilsinger Co. v. FBW Investments, LLC, 109 F. Supp. 3d 409 (2015)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_44

eomport[] with traditional notions of ‘fair play and substantial justice.’

At the opposite end are situations where a defendant has simply posted information on an Internet Web site which is accessible to users in foreign jurisdictions. A passive Web site that does little more than make information available to those who are interested in it is not grounds for the exercise [of] personal jurisdiction. The middle ground is occupied by interactive Web sites where a user can exchange infor mation with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site. Zippo Manuf. Co., 952 F.Supp. at 1124 (citations omitted). Although Kleen Concepts does not sell products on the SHIELDME website and does not appear to specifically target Massachusetts residents in general, the website is not entirely passive. The website contains information about SHIELDME products. It allows users to tweet product information, “like” products on Facebook, e-mail product information to friends, comment directly on the website, and post comments about the product on the product Facebook page. In addition, a “contact” page provides website visitors with contact information for “ShieldMe Products” and allows visitors to send a message. Visitors to the website can contact Kleen Concepts to determine where they can buy SHIELDME products. Were the jurisdictional claims based entirely on the website, it seems unlikely that this Court could exercise personal jurisdiction over Kleen Concepts. However, in light of the sales into Massachusetts through national retailers, the subject matter of this litigation, and the website activity, the “purposeful availment” prong for personal jurisdiction is met. Reasonableness Even if the requisite contacts exist, the court’s exercise of jurisdiction must “eomport[] with traditional notions of ‘fair play and substantial justice.

2010-01-29

United States District Court for the Western District of Kentucky

Crouch v. Honeywell International, Inc.

Crouch v. Honeywell International, Inc., 682 F. Supp. 2d 788 (2010)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_4

General jurisdiction is proper only where ‘a defendant’s contacts with the forum state are of such a continuous and systematic nature that the state may exercise personal jurisdiction over the defendant even if the action is unrelated to the defendant’s contacts with the state.’

Instead, they assert that Teledyne is subject to Kentucky jurisdiction on the basis of its continuous and systematic contacts with the state. Both parties refer us to the Southern Machine test discussed above, and would have us apply it here. Both parties are in error. The Southern Machine test applies only in cases of specific jurisdiction; that much should be clear from its second prong, which makes reference to the particular cause of action involved. As the Fifth Circuit has explained: Unlike the specific jurisdiction analysis, which focuses on the cause of action, the defendant and the forum, a general jurisdiction inquiry is dispute blind, the sole focus being on whether there are continuous and systematic contacts between the defendant and the forum. Due process requires that “continuous and systematic” contacts exist between the State and the foreign corporation to exercise general personal jurisdiction because the forum state does not have an interest in the cause of action. Dickson Marine Inc. v. Panalpina, Inc., 179 F.3d 331, 339 (5th Cir.1999) (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-16, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); Mary Twitchell, The Myth of General Jurisdiction, 101 Harv. L.Rev. 610 (1988)). For that reason, courts assessing claims of general jurisdiction should consider the defendant’s connections with the forum state leading up to the accrual of the cause of action, rather than just those contacts related to the case at hand. “General jurisdiction is proper only where ‘a defendant’s contacts with the forum state are of such a continuous and systematic nature that the state may exercise personal jurisdiction over the defendant even if the action is unrelated to the defendant’s contacts with the state.

2010-01-29

United States District Court for the Western District of Kentucky

Crouch v. Honeywell International, Inc.

Crouch v. Honeywell International, Inc., 682 F. Supp. 2d 788 (2010)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_2

the fact that [the defendant] maintains a website that is accessible to anyone over the Internet is insufficient to justify general jurisdiction.

It is more difficult to get into court on the basis of general jurisdiction than on specific jurisdiction; leading commentators have described the threshold for general jurisdiction as “very substantial” and “quite rigorous.” 4 Wright & Miller, supra, at § 1067.5. Because there is no test for general jurisdiction that is comparable to the three-pronged Southern Machine inquiry, we proceed by analogy. In Helicópteros, the leading Supreme Court general jurisdiction case, the Court held that the Colombian defendant had not maintained sufficient contact with Texas to allow the state court to exercise general personal jurisdiction over it. 466 U.S. at 418-19, 104 S.Ct. 1868. This was true despite several arguably substantial connections with the would-be forum state: the defendant had negotiated a contract (unrelated to the tort action that was before the Court) in Texas; had accepted checks drawn on a Texas bank; had purchased nearly 80% of its fleet of helicopters as well as other spare parts and accessories in Texas; and had sent pilots to Texas for training. Id. at 411, 416, 104 S.Ct. 1868. Teledyne’s connections to this forum are more tenuous than those that were found insufficient in Helicópteros. The company has no office in Kentucky, is not licensed to do business here, has no Kentucky bank account, and has no Kentucky-based employees. Indeed, there is no allegation that anyone associated with Teledyne has ever visited Kentucky. Plaintiffs cite three forms of conduct as justifying the exercise of general personal jurisdiction: its “Aviator Services” program, which provides customers with bulletins, catalogs, and other material relating to the maintenance of Teledyne engines; “TCMLink,” a service that provides access to online parts books and manuals; and Teledyne’s purchase of advertisements in several national publications. Teledyne evidently offers the “Aviation Services” and “TCMLink” programs primarily through its public website. But the Sixth Circuit has concluded that “

2009-08-20

United States District Court for the Eastern District of Tennessee

Invisible Fence, Inc. v. Fido’s Fences, Inc.

Invisible Fence, Inc. v. Fido’s Fences, Inc., 687 F. Supp. 2d 726 (2009)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_1

if the defendant is amenable to service of process under the [forum] state’s long- arm statute and if the exercise of personal jurisdiction would not deny the defendant ] due process.

” (internal citation and quotation marks omitted)). Whether plaintiff is the current registrant of the marks, however, such that it has standing to sue under 15 U.S.C. § 1114, is not clear. As documented above, there is a question as to whether Innotek, Invisible Fence, or Fifth Third Bank currently is the registrant of the marks (the marks having been released and refiled with Innotek but assigned as collateral by Invisible Fence to Fifth Third). The court will reserve a ruling on whether plaintiff has standing to sue under 15 U.S.C. § 1114 upon further evidence at the bench trial of this matter. Finally, the court notes that it makes these findings solely as to whether plaintiff has standing to bring suit. This finding does not affect the merits of any issue before the court, in particular the court’s ultimate determination on Counts One through Three as to whether the trademarks are valid and enforceable. B. In the Sixth Circuit, [w]here a federal court’s subject matter jurisdiction over a case stems from the existence of a federal question, personal jurisdiction over a defendant exists “

2009-08-20

United States District Court for the Eastern District of Tennessee

Invisible Fence, Inc. v. Fido’s Fences, Inc.

Invisible Fence, Inc. v. Fido’s Fences, Inc., 687 F. Supp. 2d 726 (2009)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_4

General jurisdiction exists when a defendant’s ‘contacts with the forum state are of such a continuous and systematic nature that the state may exercise personal jurisdiction over the defendant even if the action is unrelated to the defendant’s contacts with the state.’

” “General jurisdiction exists when a defendant’s ‘contacts with the forum state are of such a continuous and systematic nature that the state may exercise personal jurisdiction over the defendant even if the action is unrelated to the defendant’s contacts with the state.

2009-08-20

United States District Court for the Eastern District of Tennessee

Invisible Fence, Inc. v. Fido’s Fences, Inc.

Invisible Fence, Inc. v. Fido’s Fences, Inc., 687 F. Supp. 2d 726 (2009)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_36

[t]he operation of an Internet website can constitute the purposeful availment of the privilege of acting in a forum state ... ‘if the website is interactive to a degree that reveals specifically intended interaction with residents of the state.’

However, “[t]he operation of an Internet website can constitute the purposeful availment of the privilege of acting in a forum state... ‘if the website is interactive to a degree that reveals specifically intended interaction with residents of the state.

2009-08-20

United States District Court for the Eastern District of Tennessee

Invisible Fence, Inc. v. Fido’s Fences, Inc.

Invisible Fence, Inc. v. Fido’s Fences, Inc., 687 F. Supp. 2d 726 (2009)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_57

(1) the burden on the defendant; (2) the interest of the forum state; (3) the plaintiffs interest in obtaining relief; and (4) other states’ interest in securing the most efficient resolution of the controversy.

Under this prong, the court considers “

2011-09-28

United States District Court for the Northern District of New York

Car-Freshner Corp. v. Getty Images, Inc.

Car-Freshner Corp. v. Getty Images, Inc., 822 F. Supp. 2d 167 (2011)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_52

any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services

See 15 U.S.C. s 1114(l)(a) (defining infringement based on “

2012-02-23

United States Court of Appeals for the Sixth Circuit

Schneider v. Hardesty

Schneider v. Hardesty, 669 F.3d 693 (2012)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_12

We review de novo a district court’s dismissal of a complaint for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure.’

During the deposition, Nelson stated that Hardesty had told him the names of some of the investors, but that he could not “recall” whether the names he was provided constituted “a complete list or not.” R. 30 (Ex. B, Nelson Dep. at 29:6-10). Nelson also stated that when he provided the letters to Hardesty, he was “[cjertainly” aware that Hardesty might distribute them to investors. Id. at 35:20-24. After the parties submitted additional briefing, the magistrate judge issued his report and recommendation. In finding personal jurisdiction lacking, the magistrate judge stated: [wjhat’s missing... is any indication from plaintiff, who has not filed an affidavit or a verified complaint in this case, that he in [any way] relied upon the information or representations in either letter to either take action or refrain from taking action. There is no allegation that plaintiff understood the letters to mean that Nelson was his legal representative or that the letters otherwise had any effect on plaintiffs conduct. In other words, as far as the Court is aware at this time, the letters did not lead to any course of conduct between the parties. Without some modicum of proof that the letters caused or contributed to harm suffered by plaintiff, or that the plaintiff relied on the statements set forth in the letters, the Court is at a loss to understand how one can conclude that the letters created a connection with the forum state or caused a consequence in the forum state. R. 28 (Report and Recommendation at 11). The district court adopted the report and recommendation in full, granted Nelson’s motion to dismiss, and certified its order as final and appealable pursuant to Federal Rule of Civil Procedure 54(b). Schneider now appeals. II. Standard of Review “ We review de novo a district court’s dismissal of a complaint for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure.

2012-02-23

United States Court of Appeals for the Sixth Circuit

Schneider v. Hardesty

Schneider v. Hardesty, 669 F.3d 693 (2012)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_9

The party seeking to assert personal jurisdiction bears the burden of demonstrating that such jurisdiction exists.

Gerber v. Riordan, 649 F.3d 514, 517 (6th Cir.2011) (quoting Bird v. Parsons, 289 F.3d 865, 871 (6th Cir.2002)). Standard of Proof for Personal Jurisdiction “

2012-02-23

United States Court of Appeals for the Sixth Circuit

Schneider v. Hardesty

Schneider v. Hardesty, 669 F.3d 693 (2012)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_48

We have recognized that Ohio’s long-arm statute is not coterminous with federal constitutional limits.

International Technologies Consultants read in conjunction with Serras would suggest that any exception created in Dean was aimed at those rare instances in which a plaintiff has been granted all discovery requested and that discovery resulted in an undisputed set of facts such that an evidentiary hearing would be pointless. Counsel admitted at oral argument that Schneider received all discovery requested. Nelson also argues that there are no outstanding factual disputes. We disagree. It is clear that the extent of Nelson’s knowledge of the locations of the recipients of the “To Whom It May Concern” letters remains very much in dispute. Each party gleans different inferences from Nelson’s deposition testimony, and neither party’s factual conclusion is air tight. Moreover, that Nelson’s deposition resolved some of the outstanding factual issues, ie., whether an attorney-client relationship existed between Nelson and Schneider, is of no moment. Other facts pertinent to the jurisdictional inquiry, namely the exact extent of Nelson’s knowledge of the locations of the investors, remain in dispute. Ultimately, we need not decide conclusively whether the exception alluded to in Dean in fact exists or whether it should apply in this instance. For the reasons that follow, Schneider has demonstrated personal jurisdiction over Nelson in Ohio even under the more exacting standard imposed by the district court — the preponderance-of-the-evidence standard. C. Personal Jurisdiction In a diversity case, a plaintiff must satisfy the state-law requirements for personal jurisdiction. Estate of Thomson ex rel. Estate of Rakestraw v. Toyota Motor Corp. Worldwide, 545 F.3d 357, 361 (6th Cir.2008). Thus, Schneider must demonstrate that both due process and Ohio’s long-arm statute are satisfied. “

2012-02-23

United States Court of Appeals for the Sixth Circuit

Schneider v. Hardesty

Schneider v. Hardesty, 669 F.3d 693 (2012)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_44

does not offend ‘traditional notions of fair play and substantial justice.’

The presence of such contacts ensures that the exercise of jurisdiction over the defendant “does not offend ‘traditional notions of fair play and substantial justice.

2012-02-23

United States Court of Appeals for the Sixth Circuit

Schneider v. Hardesty

Schneider v. Hardesty, 669 F.3d 693 (2012)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_32

of the privilege of acting in the forum state or causing a consequence in the forum state,

Id. (internal quotation marks omitted). As Schneider claims only specific jurisdiction over Nelson, we employ this Circuit’s three-part analysis to determine whether jurisdiction accords with due process. To conclude that the exercise of jurisdiction is proper, we must find: (1) purposeful availment “

2012-02-23

United States Court of Appeals for the Sixth Circuit

Schneider v. Hardesty

Schneider v. Hardesty, 669 F.3d 693 (2012)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_22

substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable.

To conclude that the exercise of jurisdiction is proper, we must find: (1) purposeful availment “of the privilege of acting in the forum state or causing a consequence in the forum state,” (2) a “cause of action... arising] from activities” in the state, and (3) a “

2011-07-14

United States District Court for the Southern District of Ohio

Capitol Specialty Insurance v. Splash Dogs, LLC

Capitol Specialty Insurance v. Splash Dogs, LLC, 801 F. Supp. 2d 657 (2011)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_47

‘need only make a prima facie showing of jurisdiction.’

Second, he notes that, in ruling on two motions filed by Capitol — one to intervene in the DockDogs case, and one to consolidate this action with that one — this Court held that the two cases are not related enough to have them proceed together. This proves, according to Mr. Woods, that Capitol’s claims are not predicated on the same series of events that underlie the Dock-Dogs case. Because Mr. Woods has had no other contacts with Ohio — and none in relation to the issuance of the insurance policy in question — he asserts that the Court cannot exercise personal jurisdiction over him as to the claims for declaratory judgment. Failing that, he argues that venue is not proper here or that the convenience of the parties and the witnesses favors a change of venue. III. Law and Analysis A. Motion to Dismiss for Lack of Personal Jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2) The Court will address the issue of personal jurisdiction first. The general principles governing a ruling on a motion to dismiss for lack of personal jurisdiction are well-known. First, the plaintiff bears the burden of proving personal jurisdiction exists. CompuServe Inc. v. Patterson, 89 F.3d 1257, 1262-63 (6th Cir.1996). In the face of a supported motion to dismiss, the plaintiff may not rest on the pleadings, but must, by affidavit or otherwise, set forth specific evidence supporting jurisdiction. Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir. When the Court rules on a motion to dismiss pursuant to Rule 12(b)(2) without an evidentiary hearing on the issue of personal jurisdiction, however, the plaintiff “ ‘need only make a prima facie showing of jurisdiction.

2011-07-14

United States District Court for the Southern District of Ohio

Capitol Specialty Insurance v. Splash Dogs, LLC

Capitol Specialty Insurance v. Splash Dogs, LLC, 801 F. Supp. 2d 657 (2011)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_48

recognized that Ohio’s long-arm statute is not coterminous with federal constitutional limits,

” Tharo Sys., Inc. v. cab Produkttechnik GmbH & Co. KG, 196 Fed. The Sixth Circuit has “

2011-07-14

United States District Court for the Southern District of Ohio

Capitol Specialty Insurance v. Splash Dogs, LLC

Capitol Specialty Insurance v. Splash Dogs, LLC, 801 F. Supp. 2d 657 (2011)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_14

consistently focused on whether there are sufficient minimum contacts between the nonresident defendant and the forum state so as not to offend ‘traditional notions of fair play and substantial justice’

The Sixth Circuit has “recognized that Ohio’s long-arm statute is not coterminous with federal constitutional limits,” and has “

2011-07-14

United States District Court for the Southern District of Ohio

Capitol Specialty Insurance v. Splash Dogs, LLC

Capitol Specialty Insurance v. Splash Dogs, LLC, 801 F. Supp. 2d 657 (2011)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_44

such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’

The minimum contacts necessary to establish jurisdiction in the forum state must be “such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.

2011-07-14

United States District Court for the Southern District of Ohio

Capitol Specialty Insurance v. Splash Dogs, LLC

Capitol Specialty Insurance v. Splash Dogs, LLC, 801 F. Supp. 2d 657 (2011)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_22

... substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable.

In-Flight Devices Corp. v. Van Dusen Air, Inc., 466 F.2d 220, 226 (6th Cir.1972). It is a “baseline” requirement that the defendant has become involved with the forum state through actions freely and intentionally done, which have effects in the forum state. Id. at 228. The third part of the Southern Machine test requires inquiry into whether a defendant’s conduct establishes a “

2011-07-14

United States District Court for the Southern District of Ohio

Capitol Specialty Insurance v. Splash Dogs, LLC

Capitol Specialty Insurance v. Splash Dogs, LLC, 801 F. Supp. 2d 657 (2011)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_14

traditional notions of fair play and substantial justice,

This analysis requires a determination whether the Court’s exercise of jurisdiction would offend “

2012-03-30

United States District Court for the Eastern District of Tennessee

Functional Pathways of Tenn., LLC v. Wilson Senior Care, Inc.

Functional Pathways of Tenn., LLC v. Wilson Senior Care, Inc., 866 F. Supp. 2d 918 (2012)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_14

offend traditional notions' of fair play and substantial justice,

Due process requires that a defendant have “minimum contacts... with the forum State... such that he should reasonably anticipate being haled into court there,” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), and that the exercise of jurisdiction does not “

2012-03-30

United States District Court for the Eastern District of Tennessee

Functional Pathways of Tenn., LLC v. Wilson Senior Care, Inc.

Functional Pathways of Tenn., LLC v. Wilson Senior Care, Inc., 866 F. Supp. 2d 918 (2012)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_4

General jurisdiction exists when a defendant’s contacts with the forum state are of such a continuous and systematic nature that the state may exercise personal jurisdiction over the defendant even if the action is unrelated to the defendant’s contacts with the state.

Due process requires that a defendant have “minimum contacts... with the forum State... such that he should reasonably anticipate being haled into court there,” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), and that the exercise of jurisdiction does not “offend traditional notions' of fair play and substantial justice,” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). In order to make such a showing in this case, Plaintiff must either demonstrate that there exists general personal jurisdiction over the parties in Tennessee with respect to all causes of action, or that there exists specific personal jurisdiction over the parties in Tennessee with respect to the instant cause of action. See Intera, 428 F.3d at 615 (citing Bird v. Parsons, 289 F.3d 865, 873 (6th Cir.2002)). General Personal Jurisdiction “

2012-03-30

United States District Court for the Eastern District of Tennessee

Functional Pathways of Tenn., LLC v. Wilson Senior Care, Inc.

Functional Pathways of Tenn., LLC v. Wilson Senior Care, Inc., 866 F. Supp. 2d 918 (2012)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_36

interactive to a degree that reveals specifically intended interaction with residents of the state.

United Radio, Inc. v. Wagner, 448 F.Supp.2d 839, 843 (E.D.Ky.2006) (citing Calphalon, 228 F.3d at 723). It should also be noted that several courts, along with a compelling dissent by District Judge Hillman in Calphalon, have difficulty reconciling Calphalon with controlling Supreme Court pronouncements. See, e.g., Light Source, Inc. v. Display Dynamics, Inc., No. 09-14268, 2010 WL 2351489, *5 (E.D.Mich. June 8, 2010); Huntington Copper Moody & Maguire, Inc. v. Cypert, No. 1:04-cv-751, 2005 WL 2290318, *6 (S.D.Ohio Sept. 20, 2005); Frankenmuth Mut. Ins. Co. v. Appalachian Underwriters, Inc., No. 03-10193, 2004 WL 1406121, *9 (E.D.Mich. June 21, 2004). Several courts have distinguished Calphalon from the majority of breach of interstate contract claims, because in Calphalon, the plaintiff company sought declaratory judgment that it owed nothing to a former sales representative. See id. In this case, like most others for breach of contract, Plaintiff seeks economic damage for an alleged breach of contract that threated or otherwise adversely affected Plaintiffs ability to conduct business. See Burger King, 471 U.S. at 475, 105 S.Ct. 2174 (finding that a defendant who reached out beyond his home state and contracted with a business in a foreign state for a long-term business relationship could in no sense be viewed as random, fortuitous, or attenuated). The Court notes that it does not base its exercise of personal jurisdiction over WSC on WSC’s operation of its website. With regard to websites, the mere operation of a public website is not a sufficient “minimum contacts” to bestow personal jurisdiction over a court in Tennessee. Websites may satisfy the purposeful availment prong only where they are “

2012-08-28

United States District Court for the Southern District of Ohio

Traton News, LLC v. Traton Corp.

Traton News, LLC v. Traton Corp., 914 F. Supp. 2d 901 (2012)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_58

conceded to personal jurisdiction in this district,

In its Amended Complaint, Plaintiff asserts the Court has personal jurisdiction over Defendants because they “

2012-08-28

United States District Court for the Southern District of Ohio

Traton News, LLC v. Traton Corp.

Traton News, LLC v. Traton Corp., 914 F. Supp. 2d 901 (2012)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_58

conceded to personal jurisdiction in this district

Toumany Sayón Sako v. Ohio Dep’t of Admin. Sens., 278 Fed.Appx. 514, 517 (6th Cir.2008) (quoting Black’s Law Dictionary (8th ed. 2004)). Under the unique factual circumstances of this case, the Court finds there is no consideration (i.e., a bargained-for legal benefit or detriment) to support a contract between Plaintiff and Traton Homes. Traton Homes did not gain any benefit (nor forbear from an act) in exchange for visiting Plaintiffs website. Rather, in the Court’s view, Traton Homes was induced into monitoring Plaintiffs website to defend itself. Plaintiffs assertion — that Traton Homes “

2012-08-28

United States District Court for the Southern District of Ohio

Traton News, LLC v. Traton Corp.

Traton News, LLC v. Traton Corp., 914 F. Supp. 2d 901 (2012)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_1

Where a federal court’s subject matter jurisdiction over a case stems from the existence of a federal question, personal jurisdiction over a defendant exists ‘if the defendant is amenable to service of process under the [forum] state’s long-arm statute and if the exercise of personal jurisdiction would not deny the defendant ] due process.’

Plaintiffs assertion — that Traton Homes “conceded to personal jurisdiction in this district” by agreeing to a forum selection clause in the terms and conditions posted on www.traton.com — is unavailing. Doc. 17 ¶¶ 8-10. In order for this case to proceed against Traton Homes, Plaintiff must demonstrate that jurisdiction over Traton Homes is proper under the traditional personal jurisdiction analysis. As discussed below, the Court finds that Plaintiff has failed to do so. Traditional Personal Jurisdiction Analysis “Where a federal court’s subject matter jurisdiction over a case stems from the existence of a federal question, personal jurisdiction over a defendant exists ‘if the defendant is amenable to service of process under the [forum] state’s long-arm statute and if the exercise of personal jurisdiction would not deny the defendant ] due process.

2012-08-28

United States District Court for the Southern District of Ohio

Traton News, LLC v. Traton Corp.

Traton News, LLC v. Traton Corp., 914 F. Supp. 2d 901 (2012)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_48

not coterminous with federal constitutional limits,

Although Ohio’s long-arm statute is “

2012-08-28

United States District Court for the Southern District of Ohio

Traton News, LLC v. Traton Corp.

Traton News, LLC v. Traton Corp., 914 F. Supp. 2d 901 (2012)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_14

focuse[s] on whether there are sufficient minimum contacts between the nonresident defendant and the forum state so as not to offend ‘traditional notions of fair play and substantial justice.’

Although Ohio’s long-arm statute is “not coterminous with federal constitutional limits,” the Sixth Circuit nevertheless “focuse[s] on whether there are sufficient minimum contacts between the nonresident defendant and the forum state so as not to offend ‘traditional notions of fair play and substantial justice.

2012-08-28

United States District Court for the Southern District of Ohio

Traton News, LLC v. Traton Corp.

Traton News, LLC v. Traton Corp., 914 F. Supp. 2d 901 (2012)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_4

a defendant’s contacts with the forum state are of such a continuous and systematic nature that the state may exercise personal jurisdiction over the defendant even if the action is unrelated to the defendant’s contacts with the state.

Id. at 871-72. There are two types of personal jurisdiction depending upon the nature of the defendant’s contacts with the forum state: general and specific. The Court has general jurisdiction when “

2007-08-14

United States District Court for the Eastern District of New York

Sadhu Singh Hamdad Trust v. Ajit Newspaper Advertising, Marketing & Communications, Inc.

Sadhu Singh Hamdad Trust v. Ajit Newspaper Advertising, Marketing & Communications, Inc., 503 F. Supp. 2d 577 (2007)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_23

it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

Defendants also dispute that the logo is unique or distinctive (Defs.’ Resp. at 7-8), suggesting that it is nearly identical to standard Punjabi fonts with “two slight modifications.” (Id. at 6, 8). PROCEDURAL BACKGROUND On February 22, 2006, plaintiff filed a motion for summary judgment on its claims under the Lanham Act, the Copyright Act, New York’s Anti-Dilution Law, and New York’s Anti-Deceptive Trade Practices Law. Defendants cross-moved, arguing that plaintiff was not entitled to either trademark or copyright protection for its logo in the United States, and that in absence of proof of ownership of a distinctive mark, plaintiff could not demonstrate a violation of New York state law. By Memorandum and Order dated March 30, 2007 (“March Order”), this Court granted defendants’ motion for summary judgment, dismissing plaintiffs trademark and state law claims. The parties’ cross-motions for summary judgment on the claims of copyright infringement were denied without prejudice pending the submission of supplemental paperwork addressing plaintiffs claimed copyright ownership under the laws of India. The parties thereafter submitted supplemental paperwork addressing plaintiffs sole remaining claim of copyright infringement. For the reasons set forth below, both plaintiffs and defendants’ motions for summary judgment on the copyright infringement claim are denied. DISCUSSION A. Standards As noted in the Court’s March Order, the burden of establishing that there is no genuine issue of material fact in dispute rests with the moving party, see Fed. R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir.2003); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir.1990), and the Court should not grant summary judgment unless “

2008-03-20

United States District Court for the Northern District of Illinois

Vulcan Golf, LLC v. Google Inc.

Vulcan Golf, LLC v. Google Inc., 552 F. Supp. 2d 752 (2008)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_53

deliberate, bad-faith, and abusive registration of Internet domain names in violation of the rights of trademark owners.

Thus the issue about Rule 23 certification should be treated first”) (citing Ortiz v. Fibreboard Corp., 527 U.S. 815, 831, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999)). The court notes that Ireit, in its individual motion to dismiss, seeks to dismiss numerous counts by arguing that plaintiffs Vulcan, Blitz and Jackson have not alleged and cannot prove that Ireit owns any domain names that infringe these plaintiffs’ rights. The court construes these arguments as challenging those plaintiffs’ standing. For the reasons just discussed, and without discussing herein each separate instance where Ireit raises the argu ment, the court denies this portion of Ir-eit’s motion to dismiss without prejudice pending resolution of the motion for class certification. B. Lanham Act Claims 1. Anticybersquatting Consumer Protection Act (ACPA) Defendants Ireit, Sedo, Oversee and Google have moved to dismiss the ACPA count. The ACPA, 15 U.S.C. § 1125(d), was enacted in 1999 to combat cybersquatting, the “

2008-03-20

United States District Court for the Northern District of Illinois

Vulcan Golf, LLC v. Google Inc.

Vulcan Golf, LLC v. Google Inc., 552 F. Supp. 2d 752 (2008)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_51

registered a domain name, ... and liability for using a domain name can only exist for the registrant or that person’s authorized licensee,

According to Sedo and Oversee, the FAC characterizes them as “parking companies” and does not allege that they are the registrant or owner of any domain names or that they register domain names. Bird v. Parsons, 289 F.3d 865, 870 (6th Cir.2002) (because there was no allegation that certain defendants “registered a domain name,... and liability for using a domain name can only exist for the registrant or that person’s authorized licensee,” the complaint was properly dismissed against those defendants because it “contains no allegation that... [those defendants] are... licensee[s]”) (citing 15 U.S.C. § 1125(d)(1)(D)).

2008-03-20

United States District Court for the Northern District of Illinois

Vulcan Golf, LLC v. Google Inc.

Vulcan Golf, LLC v. Google Inc., 552 F. Supp. 2d 752 (2008)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_42

contains no allegation that ... [those defendants] are ... licensee[s]

Bird v. Parsons, 289 F.3d 865, 870 (6th Cir.2002) (because there was no allegation that certain defendants “registered a domain name,... and liability for using a domain name can only exist for the registrant or that person’s authorized licensee,” the complaint was properly dismissed against those defendants because it “contains no allegation that... [those defendants] are... licensee[s]”) (citing 15 U.S.C. § 1125(d)(1)(D)).

2008-03-20

United States District Court for the Northern District of Illinois

Vulcan Golf, LLC v. Google Inc.

Vulcan Golf, LLC v. Google Inc., 552 F. Supp. 2d 752 (2008)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_17

transactions that include, but are not limited to, sales, purchases, loans, pledges, licenses, exchanges of currency, and any other transfer for consideration or receipt in exchange for consideration,

It is plausible that these allegations fall under the ACPA’s prohibition of “trafficking in,” which is defined by the ACPA as engaging in “

2008-03-20

United States District Court for the Northern District of Illinois

Vulcan Golf, LLC v. Google Inc.

Vulcan Golf, LLC v. Google Inc., 552 F. Supp. 2d 752 (2008)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_15

a bad faith intent to profit from that mark.

This type of factual determination is wholly inappropriate at the motion to dismiss stage. iv. Specifically, Oversee asserts that liability under the ACPA requires that the purported wrongdoer have “

2008-03-20

United States District Court for the Northern District of Illinois

Vulcan Golf, LLC v. Google Inc.

Vulcan Golf, LLC v. Google Inc., 552 F. Supp. 2d 752 (2008)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_45

[S]omething more than the registration of the name is required before the use of a domain name is infringing

See Lockheed, 985 F.Supp. at 957 (“

2008-03-20

United States District Court for the Northern District of Illinois

Vulcan Golf, LLC v. Google Inc.

Vulcan Golf, LLC v. Google Inc., 552 F. Supp. 2d 752 (2008)

2002-05-21

United States Court of Appeals for the Sixth Circuit

Bird v. Parsons

Bird v. Parsons, 289 F.3d 865 (2002)

9435945_52

in connection with the sale, offering for sale, distribution, or advertising of goods and services.

The FAC sufficiently pleads facts such that it is plausible that there was “use in commerce” and “