IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

FORT WAYNE DIVISION 

GLOBAL ARCHERY PRODUCTS, INC. ) 

 ) 

 Plaintiff, ) Civil Action No.: 1:15-cv-297-JVB-SLC 

 ) 

v. ) JURY TRIAL DEMANDED 

 ) 

JORDAN GWYTHER d/b/a ) 

LARPING.ORG and UPSHOT ARROWS, ) 

 ) 

 Defendant. ) 

PLAINTIFF GLOBAL ARCHERY PRODUCTS, INC.’S 

BRIEF ON PERSONAL JURSIDICTION AND VENUE 

Plaintiff Global Archery Products, Inc. (“Global”), by counsel and pursuant to the 

Court’s Order [Doc. 34] hereby submits its brief regarding personal jurisdiction and venue. 

I. FACTUAL BACKGROUND 

This matter was initiated October 13, 2015 when Global filed its Complaint [Doc. 1]. In 

its Complaint, Global alleged that Defendant Jordan Gwyther d/b/a Larping.Org and Upshot 

Arrows (“Mr. Gwyther”), a resident of Washington, was unfairly competing with Global, an 

Indiana resident. [Doc. 1 at ¶¶ 2 and 3]. Specifically, Global alleged that Mr. Gwyther was 

improperly using Global’s registered trademarks to market his products and was actively 

soliciting Global’s licensees seeking to induce them to purchase Mr. Gwyther’s products in 

violation of their respective license agreements. [Id. at ¶¶ 11-15 and 18] Global also alleged that 

some of the products being sold by Mr. Gwyther infringed two patents owned by Global. [Id. at 

¶¶ 20 and 25]. 

On December 21, 2015, and after obtaining a sixty (60) day extension of time to respond 

to the Complaint in exchange for a waiver of service [Doc 9], Mr. Gwyther answered Global’s 

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Complaint. [Doc. 11]. In Defendant’s Answer to Complaint and Affirmative Defenses, Mr. 

Gwyther specifically denied that “this Court has personal jurisdiction over him.” [Doc. 11 at ¶ 5] 

and that “venue is proper in this district pursuant to 28 U.S.C. §§ 1391 and 1400(b).” [Id. at ¶ 6]. 

Gwyther also alleged Defenses (Including Affirmative Defenses) including “this Court lacks 

personal jurisdiction over Mr. Gwyther” and “venue is improper in this judicial district.” [Id. at 

p. 27, ¶¶ 2 and 3]. 

On January 28, 2016, and pursuant to the Court’s Notice of Preliminary Pretrial 

Conference, the parties filed their Report of Parties’ Planning Meeting. [Doc. 15]. In this filing, 

Mr. Gwyther again asserted that “Mr. Gwyther denies that this court has personal jurisdiction 

over him and denies that venue is proper, pursuant to Fed. R. of Civ. P. 12(b)(2) and 12(b)(3).” 

[Id. at ¶ 2]. 

On February 1, 2016, Mr. Gwyther then filed his Motion for Relief from Local Patent 

Rules, For Limited Discovery, and for a Show-Cause Hearing (the “Motion”). [Doc 16]. In the 

Motion, Mr. Gwyther sought affirmative relief from this Court and asked it to suspend 

application of the Local Rules of the United District Court for the Northern District of Indiana 

and specifically Patent Rule 1-1 through 6-1. Mr. Gwyther attached to his Motion several 

exhibits including a copy of the German patent (which Mr. Gwyther contended constituted prior 

art) as well as translation of that patent provided by Google [Doc. 16-1]. Mr. Gwyther also 

included legal argument as to why Global’s patent claims were “highly dubious” in light of the 

German patent. [Doc. 16 at p. 4]. 

Mr. Gwyther then sought additional affirmative relief from this Court by asking it to limit 

discovery to two issues: 

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1. Whether plaintiff can maintain claims of patent infringement where the claimed 

arrows and the accused products are identical in all material respects to the prior art; 

and 

2. Whether plaintiff has evidence sufficient to raise a genuine issue of material fact 

concerning its remaining claims. 

[Id. at p. 6]. According to Mr. Gwyther, both of these issue could be resolved by this Court on 

the merits with limited discovery of no more than 10 interrogatories, 20 requests for production, 

10 requests for admissions (not including admissions as to authenticity or admissibility of 

documents) and 3 deposition. [Id.]. Finally, Mr. Gwyther moved this Court to schedule a 

hearing on or before May 6, 2016 pursuant to Fed. R. Civ. P. 56. [Id.] The Motion did not raise 

(or even mention) Mr. Gwyther’s defenses that this Court lacked personal jurisdiction over Mr. 

Gwyther or that venue was improper in this judicial district. 

Global responded to the Motion on February 5, 2016. [Doc. 19]. In its response, Global 

pointed out that the Motion was “nothing more than a premature attempt to have this Court 

invalidate Global’s patents-in-suit. . . ) [Doc. 19 at p. 1 (emphasis added)]. Global also argued 

“this case should proceed as a normal case . . .” [Doc. 19 at p. 4]. On February 12, 2016, Mr. 

Gwyther filed Defendant’s Reply to Plaintiff’s Response to Motion for Relief from Local Patent 

Rules, For Limited Discovery, and for a Show-Cause Hearing [Doc. 25]. In his reply, Mr. 

Gwyther took issue with Global’s argument and stated: 

Plaintiff argues that Mr. Gwyther is attempting to shift the burden of proving 

invalidity of the patents-in-suit. . . . . This is incorrect. Mr. Gwyther will carry his 

burden of proof on invalidity . . . 

[Doc. 25 at p. 2 (emphasis added)]. Mr. Gwyther further argued that: 

a hearing will be held on or around May 6, 2016 to see whether Plaintiff’s claims 

can survive a summary judgment motion. . . . Of course, the particular dates for 

close of discovery and for the summary judgment hearing can and should be 

modified if necessary to fit the parties’ and the Court’s schedule and to permit 

adequate briefing. For example, Mr. Gwyther can be ordered to file a summary 

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judgment brief no later than 28 days prior to the date when Plaintiff files its 

response, consistent with N.D. Ind. L.R. 56-1(b).

[Id. at p. 2 (emphasis added)]. 

 On February 22, 2016, the Court then conducted a telephonic Rule 16 Preliminary 

Pretrial Conference during which: 

Court hears argument on [16] Motion for Relief from Local Patent Rules, For 

Limited Discovery and For a Show-Cause Hearing filed by Jordan Gwyther. 

[Doc. 33]. The Court’s entry then provided: 

Court GRANTS the motion in that the Court suspends the Local Patent rules. 

DISCOVERY DEADLINE is 5/6/2016. Court approves 15 interrogatories, 20 

requests for admission, and 4 depositions per party. Rule 26(a)(1) disclosures to 

be exchanged by 2/23/2016. The deadline for leave to amend pleadings is 

3/22/2016. Parties to file their selection of a mediator by 3/7/2016. Results of the 

Mediation shall be filed with the Court no later than 10 days before the Final 

Pretrial Conference. Magistrate Consent forms due by 3/14/2016. Following the 

close of discovery, and unless otherwise ordered by the Court, the assigned 

District Judge will establish all further deadlines and dates. Counsel to file a 

JOINT SETTLEMENT STATUS REPORT as the COMPLETION OF 

DISCOVERY. The Parties SHALL NOT file any Summary Judgment Motions 

until the District Judge holds a further Scheduling Conference. 

[Id.] 

 On March 7, 2016, the parties agreed upon the selection of a mediator for this case and 

filed notice of their selection with the Court. [Doc. 35]. 

II. ARGUMENT 

Gwyther has waived any argument that this Court lacks personal jurisdiction over him or 

that venue is improper in this Court. “To waive or forfeit a personal jurisdiction defense, a 

defendant must give a plaintiff a reasonable expectation that it will defend the suit on the merits 

or must cause the court to go to some effort that would be wasted if personal jurisdiction is later 

found lacking.” Mobile Anesthesiologists Chicago, LLC v. Anesthesia Associates of Houston 

Metroplex, P.A., 623 F.3d 440, 443 (7th Cir. 2010) (emphasis added). Both prongs of this test are 

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satisfied in this instance because Gwyther has given Global (and the Court) a reasonable 

expectation that it will defend the suit on the merits and has caused this Court to go to some 

effort that would be wasted if personal jurisdiction is later found lacking. In American Patriot 

Ins. Agency, Inc. v. Mutual Risk Management, Ltd., 364 F.3d 884, 887-888, (7th Cir. 2004), the 

Seventh Circuit pointed out: 

a right can be waived or forfeited. If the defendant tells the plaintiff that he is 

content with the venue of the suit, or by words or actions misleads the plaintiff 

into thinking this or the court into becoming involved in the case so that there 

would be wasted judicial effort were the case to be dismissed to another forum, or 

if he stalls in pleading improper venue because he wants to find out which way the 

wind is blowing, then conventional principles of waiver or equitable estoppel 

come into play and if invoked by the plaintiff block the challenge to venue. 

(emphasis added). These principals were applied by this Court in Abandoned Property LLC v 

Kellams, 2012 WL 1200781 (N.D. Ind. 2012). 

In Kellams, the defendants filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(2) 

and 12(b)(3) claiming that the Court didn’t have personal jurisdiction over them and that venue 

was improper in the Northern District of Indiana. Id. at *1. In addressing the motion, the 

Honorable Judge Robert J. Miller, Jr. first pointed out that: 

Unlike subject matter jurisdiction, which relates to the court's Article III 

constitutional power, personal jurisdiction flows from the due process clause . . . 

This renders claims regarding lack of personal jurisdiction able to be voluntarily 

waived or forfeited. Challenges to a court's personal jurisdiction over a defendant 

are considered forfeited if not properly raised at the right time.

Id. (emphasis added) (citations and footnote omitted). Thus, according to Judge Miller, “Once 

the defendant has ‘submitted generally to the jurisdiction of the court, the court is powerless to 

dismiss the suit for lack of personal jurisdiction.’” Id. (quoting O'Brien v. R.J. O'Brien & 

Associates, Inc., 998 F.2d 1394, 1399 (7th Cir. 1993)

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In Kellams, the defendant had first filed a limited appearance “that stated it was for 

purposes of contesting personal jurisdiction.” Id. Then, rather than filing a motion actually 

contesting personal jurisdiction, the defendant elected to file a motion “to stay all matters 

because a related case was being litigated in Texas.” Id. This motion was opposed and the 

defendant filed a reply brief. Id. The Court denied the motion and several days later, the 

defendant then filed his motion contesting personal jurisdiction and venue. Id. 

Judge Miller addressed that motion by applying the two prong test set forth in Mobile 

Anesthesiologists. Judge Miller concluded that the first prong (“whether the defendant's actions 

led the plaintiff to believe that the defendant would defend on the merits”) favored the Kellams 

defendant. Id. at *3. The second prong (“whether the defendant caused ‘the court to go to some 

effort that would be wasted if personal jurisdiction is later found lacking’” Mobile 

Anesthesiologists, 623 F.3d at 443), however, favored plaintiffs: 

Had the Rule 12(b)(2) motion contesting the court's personal jurisdiction over 

[defendant] been filed first and had the court granted the motion, the court 

wouldn't have had to decide whether the merits of the Indiana case really were 

dependent on the outcome of the Texas case and whether the litigants were, for all 

practical purposes, the same in each suit. 

Kellams, 2012 WL 1200781 at *3. The Court also implied that defendant had apparently wanted 

to find out which way the wind was blowing: 

[Defendant] first asked the court to decide such issues as whether a stay would 

tactically disadvantage the non-moving party and whether the stay would simplify 

the issues and streamline trial. . . . . Only after an unfavorable ruling on that 

motion did [defendant] contest the court's jurisdiction over him. 

Id. But, by proceeding in that fashion, Judge Miller concluded that the defendant “availed 

himself of the power of the court. . .” Id. Judge Miller then held “[o]nce a party has asked the 

court to rule on such a matter, the party can't later claim the court has no power over him.” Id. 

Judge Miller also concluded that the defendant had forfeited his claim to improper venue “by the 

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same act as he forfeited the personal jurisdiction . . .” Id. at *4. Judge Miller’s holding in 

Kellams is directly on point in this instance. 

The contents of the Motion, as well as the subsequent actions Mr. Gwyther took in 

support of the Motion and his conduct in advancing this litigation, unequivocally communicated 

to Global and this Court that he was both content with this venue and that he intended to defend 

on the merits in this Court. In fact, in his reply brief, Gwyther emphatically stated that “Mr. 

Gwyther will carry his burden of proof on invalidity . . .” [Doc. 25 at p. 2 (emphasis added)]. 

Mr. Gwyther also requested a hearing be held in May 2016 on the Motion and requested dates 

for filing summary judgment briefs. Further, jointly selecting a mediator for this action clearly 

gave Global a reasonable expectation that Gwyther would go forward in this action to engage in 

settlement discussions. Mr. Gwyther’s conduct satisfies the first prong of the Mobile 

Anesthesiologists test. 

The second prong of the Mobile Anesthesiologists test is also satisfied by Mr. Gwyther’s 

conduct. Mr. Gwyther specifically availed himself of the power of this Court by asking for, and 

obtaining, affirmative relief from this Court. This relief included being excused from complying 

with this Court’s local patent rules because “[i]t is unclear whether he could continue defending 

himself through the many months it might take to complete claim construction and discovery 

according to the local patent rules.” [Doc. 16 at pp. 5-6] and limiting discovery in this action. It 

is axiomatic that a timely change of venue motion and/or a challenge to personal jurisdiction, if 

granted, would have excused Mr. Gwyther from complying with this Court’s local rules because 

this action would no longer be before this Court. But, like the defendants in Kellams, Gwyther 

apparently elected to “find out which way the wind is blowing” by first filing the Motion with no 

mention of his challenges to personal jurisdiction or venue. 

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There is no question that Mr. Gwyther’s conduct satisfies both prongs of the 

Mobile Anesthesiologists test. Gwyther made it clear to Global (and this Court) that he 

would defend this action on the merits in this Court. Mobile, 623 F.3d at 443. Likewise, 

Gwyther caused this Court “to go to some effort” which will now be wasted if personal 

jurisdiction is found lacking or that venue is improper in this Court. Id. This Court 

should therefore hold that Mr. Gwyther waived any argument that this Court lacks 

personal jurisdiction over him and that venue is improper in this Court. 

III. CONCLUSION 

For all of the reasons set forth above, Global requests this Court to hold that Gwyther has 

forfeited his right to challenge whether this Court has personal jurisdiction over him and that 

venue is improper in this action. 

Dated: March 17, 2016 s/Dean E. McConnell 

 Dean E. McConnell, Esq. Atty No. 20254-49 

 INDIANO & McCONNELL LLP 

 9795 Crosspoint Blvd., Suite 185 

 Indianapolis, IN 46256 

 Phone: (317) 912-1331 

 Fax: (317) 927-8279 

dean@im-iplaw.com 

 s/Gregg S. Gordon 

 Gregg S. Gordon, Attorney No. 19360-49 

 Of Counsel, Cremer & Cremer 

 8038 N 600 W, Ste 400 

 McCordsville, Indiana 46055 

 Telephone: (317) 335-3360 

 Fax: (317) 335-3361 

 GGordon@Geistlaw.com

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CERTIFICATE OF SERVICE 

 The undersigned hereby certifies that a true and correct copy of the foregoing was 

electronically filed on this 17th day of March 2016, by way of the Court’s electronic filing 

system, and that a copy of this filing will be sent to all counsel of record via the Court’s 

electronic filing system. 

 /s/ Dean E. McConnell 

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