UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

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MICHAEL BROWN, on behalf of himself and all 

others similarly situated,

Plaintiff,

-againstSWAGWAY, LLC, and MODELL’S SPORTING 

GOODS, INC.,

Defendants.

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No. 3:15-cv-588

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PLAINTIFF’S MOTION FOR LEAVE TO TAKE LIMITED DISCOVERY FROM 

DEFENDANT MODELL’S SPORTING GOODS, INC. RELATING TO PERSONAL 

JURISDICTION

Plaintiff Michael Brown (“Plaintiff”), by counsel, respectfully moves the Court for leave 

to take limited discovery under Fed. R. Civ. P. 26(d)(1) relating to whether this Court has 

personal jurisdiction over Defendant Modell’s Sporting Goods, Inc. (“Modell’s”). Plaintiff seeks 

a targeted production of documents, as well as a deposition under Federal Rule of Civil 

Procedure 30(b)(6). A proposed document request and notice of Rule 30(b)(6) deposition are 

attached hereto, respectively, as exhibits A and B. 

In support, Plaintiff states:

1. On February 29, 2016, Modell’s filed its Motion to Dismiss the Complaint or, In 

the Alternative, To Strike Portions of the Pleadings or, In the Alternative, For a More Definite 

Statement (“Motion to Dismiss”) (ECF No. 29), and supporting papers.

2. Among other grounds, Modell’s Memorandum of Law in Support raised lack of 

personal jurisdiction as a basis for dismissal. (ECF No. 31 at 15-18). Modell’s has also 

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submitted a Declaration of Mark Aarons in Support of Motion (ECF No. 30-2), which contains 

factual averments that Modell’s cites in support of this ground for dismissal.

3. In order to uncover facts relevant to the issue of personal jurisdiction and to meet 

the factual averments of Modell’s, Plaintiff has delivered to counsel for Modell’s requests for 

production (“RFP”) and a Rule 30(b)(6) deposition notice (“Notice”) related to personal 

jurisdiction. Plaintiff’s counsel has met and conferred with Modell’s counsel concerning the 

proposed discovery, and Modell’s did not agree to provide such discovery. See Declaration of 

Richard J. Kilsheimer, attached hereto as Exhibit C. 

4. This Court has held that, “[a]s a general matter, discovery under the Federal Rules 

of Civil Procedure should be freely permitted, and this is no less true when discovery is directed 

to personal jurisdiction.” Andersen v. Sportmart, Inc., 179 F.R.D. 236, 241 (N.D. Ind. 1998) 

(citation omitted). “In fact, a district court risks abusing its discretion by not allowing some 

limited discovery into the personal jurisdiction issue.” Id. To obtain discovery “[a] plaintiff must 

make a threshold or prima facie showing with some competent evidence demonstrating that 

personal jurisdiction might exist over a defendant” or that “the factual record is at least 

ambiguous or unclear on the jurisdiction issue.” Id. (emphasis in original; internal citations 

omitted). 

5. Plaintiff submits that there are sufficient facts to make a prima facie showing that 

this Court has personal jurisdiction over Modell’s, but seeks limited discovery to more fully 

develop the record and to discover facts omitted from or not addressed in the supporting papers 

to the Motion to Dismiss, including the Aarons Declaration, and that are not otherwise known or 

available to Plaintiff.

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6. The following facts are already known to or believed by Plaintiff and support a 

prima facie case for personal jurisdiction over Modell’s.

7. Modell’s operates a retail website, www.modells.com, where it offers a wide

variety of products, including, until recently, the Swagway hoverboards at issue in this litigation, 

for purchase and shipping. Plaintiff purchased his Swagway hoverboard from 

www.modells.com. Products purchased through the www.modells.com website are shipped to 

all fifty U.S. states, and the “checkout” page of the website has dropdown menus allowing 

customers to select Indiana as the shipping and/or billing state. See Best Chair Inc. v. Factory 

Direct Wholesale, LLC, 121 F. Supp. 3d 828, 837 (S.D. Ind. 2015) (citing Illinois v. Hemi Group 

LLC, 622 F.3d 754 (7th Cir. 2010)) (finding personal jurisdiction, even with low sales volume 

into Indiana, where the defendant operated internet retail stores for the promotion and sale of its 

products, held itself out as open to do business with every state except Hawaii and Alaska, and 

sold products directly from various internet websites to customers in Indiana.),

8. Modell’s has conceded that it sold products to consumers in Indiana in 2015. 

Aarons Decl. at ¶ 5. While Modell’s states that its total sales to Indiana “represent less than one 

quarter of one percent” of Modell’s total sales orders in 2015, Modell’s does not provide a total 

dollar amount for these sales, and that dollar amount may be substantial in light of the hundreds 

of millions of dollars per year Modell’s earns in total sales revenue.

1 See, e.g., Gallert v. 

Courtaulds Packaging Co., 4 F. Supp. 2d 825, 831-32 (S.D. Ind. 1998) (finding defendant’s 

argument that only “.0055% of its annual sales nationwide” were to Indiana unpersuasive where 

 1 See, e.g., “2014 Retail Top 100: SGB Ranks the 100 top U.S. sporting goods retailers in 2013,” 

SGB Weekly June 23, 2014 at 23, available at 

http://d4ex6pvli7xof.cloudfront.net/sgbweekly/2014/SGB_14Q2/SGBW_1425lo.pdf (estimating 

Modell’s total 2013 sales at $703 million). Assuming a similar figure for 2015, even a quarter of 

one percent of sales would be equivalent to approximately $1.75 million in sales into Indiana. 

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the total dollar amount was still substantial enough to represent “continuous and systematic 

contacts” with Indiana and an “intent to do business in this state,” sufficient for personal 

jurisdiction). See also Best Chair Inc., 121 F. Supp. 3d at 837 (noting that the “number of sales 

to the forum state is not determinative” of personal jurisdiction, and finding specific jurisdiction 

even where sales to the forum state may have been “de minimus”). Modell’s also does not state 

what percentage of its internet sales were to Indiana customers. 

9. Further, while Modell’s has represented that www.modells.com “does not target 

customers in a specific state or geographic region,” www.modells.com sells numerous products 

emblazoned with the logos of Indiana professional sports teams – including the Indiana Pacers 

(NBA) and Indianapolis Colts (NFL) – and Indiana universities – including Indiana University 

and the University of Notre Dame. These products include t-shirts, sweatshirts, caps, throw 

blankets, sports jerseys, wall posters, bed comforters and various other apparel and memorabilia. 

Indeed, in a Google search for “Indiana Pacers gear,” Modell’s website appears in the second 

page of search results, and the displayed link to the Modell’s website includes what appears to be 

a message deliberately targeted toward fans of the Indiana Pacers (“Modell's has all the Indiana 

Pacers gear you need. Find Indiana Pacers jerseys, hats, shirts, sweatshirts and more gear. Shop 

at Modell's today!”).2 While not all supporters of Indiana sports teams will reside in Indiana, the 

greatest numbers of them naturally will—a fact Modell’s no doubt knows when targeting these 

customers.

10. In addition, defendant Swagway, LLC (“Swagway”) is registered in and has its 

principal place of business in Indiana, and information on Swagway’s website indicates that 

 2 Modell’s also sells products relating to sports teams from numerous colleges and universities 

that are members of the National Collegiate Athletic Association (“NCAA”), which is 

headquartered in Indianapolis, Indiana. Plaintiff is currently unaware of the terms of contractual 

arrangements, if any, between Modell’s and the NCAA, relating to such sales.

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Swagway ships its hoverboards from a location in Indiana.3 While Plaintiff does not know the 

specifics of the arrangements between Swagway and Modell’s, Swagway either ships the 

hoverboards from Indiana to Modell’s, or else fulfills Modell’s online orders (from 

www.modells.com) by shipping directly from Indiana to Modell’s customers. Relatedly, 

Modell’s states that it “purchased Swagway Hoverboards from Swagway LLC pursuant to 

purchase orders and Indemnification Agreement.” Aarons Decl. at ¶ 7. Additional facts about 

these purchase orders and this indemnification agreement, their terms, their negotiation, and the 

attendant business relationship between Swagway and Modell’s, may reveal additional 

purposeful establishment of contacts with Indiana related to the hoverboards at the center of this 

case. See, e.g., Noble Roman’s, Inc. v. French Baguette, LLC No. 1:07-CV-1176-LJM-JMS, 

2008 WL 975078, at *1 (S.D. Ind. Apr. 8, 2008) (finding specific jurisdiction in Indiana over 

Florida-based franchisees, even though neither of the franchisees had any offices, directors, 

officers, agents, employees, real property, or financial accounts in Indiana, because they 

“deliberately entered into a long-term Franchise Agreement with...an Indiana corporation,” and 

thus “purposefully availed themselves of the privilege of conducting business in Indiana.”); Aero 

Indus., Inc. v. DeMonte Fabricating, Ltd., 396 F. Supp. 2d 961, 968-69 (S.D. Ind. 2005) (finding 

sufficient contacts for personal jurisdiction in Indiana where defendant “(1) entered into a 

contract with and sold two tarpaulin systems to an Indiana company, and 2) maintained an 

 3 Swagway’s website includes a map of the United States showing estimated shipping times for 

hoverboards ordered directly from Swagway. The map, which has been reproduced in the 

Complaint in this matter at paragraph 16 (ECF No.1), shows that the shortest estimated shipping 

time (1 day) is available within Indiana and at locations in close proximity to Indiana, while the 

longest estimated shipping time (5 days) is given for locations furthest from Indiana. See 

https://swagway.com/faq/ and https://swagway.com/wp-content/uploads/2015/08/swagway-upsmap.jpg. This fact in combination with the location of Swagway’s principal place of business in 

Indiana strongly suggests that the products ship from Indiana, and this can be confirmed in 

discovery.

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Internet web page that allowed the user to submit commercial information in exchange for a 

price quotation and offer for sale from [defendant]”).

11. In sum, the pre-discovery facts demonstrate a prima facie showing of personal 

jurisdiction over Modell’s and justify limited discovery that would remove any doubt that 

Modell’s has sufficient contacts with Indiana either for general jurisdiction or, at a minimum, 

specific jurisdiction.

12. Having made a case for threshold discovery, Plaintiff’s targeted discovery seeks

only:

• The dollar amounts of Modell’s total sales, revenue, and profit earned from sales or 

shipments to Indiana (RFP 1 and Notice Topic 1);

• The locations of any warehouses, distribution centers or fulfillers in Indiana from 

which products ordered from the Modell’s website were shipped to customers (RFP 2 

and Notice Topic 2);

• The process by which Swagway products reached Modell’s customers after they were 

ordered from www.modells.com, including the locations from which they were 

shipped (RFP 3 and Notice Topic 3);

• The process by which Swagway products were delivered to Modell’s for sale in its 

retail stores (RFP 4 and Notice Topic 4);

• Any contracts or agreements between Modell’s and Swagway concerning the sale of 

Swagway products by Modell’s (RFP 5 and Notice Topic 5);

• The existence of any other contracts between Modell’s and any other Indiana-based 

or incorporated entities, including the NCAA (RFP 7 and 8 and Notice Topics 7 and 

8) ; and

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• Attempts by Modell’s to advertise to or target Indiana consumers, including in 

connection with Indiana sports franchises and universities, as well as traffic on 

Modell’s website from Indiana consumers. (RFP 9-13 and Notice Topics 9-12). 

WHEREFORE, Plaintiff respectfully requests that the Court enter an order (1) granting 

Plaintiff leave to seek jurisdictional discovery consisting of document production and a Rule 

30(b)(6) deposition responsive to the attached document request and Rule 30(b)(6) notice; and 

(2) setting a schedule requiring Modell’s to comply with the discovery within a reasonable 

amount of time such that Plaintiff may make a fully informed response to Modell’s Motion to 

Dismiss.

DATED: March 17, 2016

s/Irwin B. Levin . 

Irwin B. Levin, No. 8786-49

Richard E. Shevitz, No. 2007-49

Vess A. Miller, No. 26495-53

COHEN & MALAD, LLP

One Indiana Square, Suite 1400

Indianapolis, IN 46204

Telephone: 317-636-6481

Facsimile: 317-636-2593

ilevin@cohenandmalad.com

rshevitz@cohenandmalad.com

vmiller@cohenandmalad.com

Seth R. Lesser, pro hac vice

Jeffrey A. Klafter, pro hac vice

Fran L. Rudich, pro hac vice

Michael H. Reed, pro hac vice

KLAFTER OLSEN & LESSER LLP

Two International Drive, Suite 350

Rye Brook, New York 10573

Telephone: (914) 934-9200

Facsimile: (914) 934-9220

slesser@klafterolsen.com

jak@klafterolsen.com

frudich@klafterolsen.com

michael.reed@klafterolsen.com

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Robert N. Kaplan

Richard J. Kilsheimer

KAPLAN FOX & KILSHEIMER LLP

850 Third Avenue

14th Floor

New York, NY 10022

Telephone: (212) 687-1980

Facsimile: (212) 687-7714

rkilsheimer@kaplanfox.com

 ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF SERVICE

I certify that on March 17, 2016, a copy of the foregoing document was filed

electronically. Service of this filing will be made on all ECF-registered counsel by operation of

the Court’s electronic filing system. Parties may access this filing through the Court’s system.

s/Irwin B. Levin

Irwin B. Levin

 

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