THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

VICTOR MANUEL CELORIO,

Plaintiff,

v. Case No. 1:11-cv-79-SPM-GRJ

GOOGLE INC., ON DEMAND BOOKS, LLC,

JASON EPSTEIN, AND JOHN DOES 1-3,

Defendants.

______________________________________,

REPORT AND RECOMMENDATION

Pending before the Court is the Motion of Defendants On Demand Books LLC

and Jason Epstein to Dismiss for Lack of Jurisdiction. (Doc. 22.) Plaintiff has filed a

response (Doc. 31) and therefore the motion is ripe for review. For the reasons

discussed below, the motion is due to be GRANTED. 

I. BACKGROUND

Plaintiff Victor Manuel Celorio, proceeding pro se, brought this suit alleging

infringement by Defendants of his patent for an “Electronic Bookstore Vending

Machine” that is directed to “a method and system for producing books on-demand.” 

(Doc. 13.). In his Amended Complaint, Plaintiff alleges that On Demand Books LLC

and Jason Epstein directly infringed his patent. Plaintiff also asserts direct and

contributory infringement claims against Google, Inc. On Demand Books is a Delaware

Corporation with its principal place of business in New York. (Doc. 22, Exh. 5.) Mr.

Epstein, a resident of New York, founded the company in 2003 and is now Chairman.

Case 1:11-cv-00079-RV-GRJ Document 38 Filed 04/30/12 Page 1 of 13
(Id., Exh. 6.) On Demand Books sells the Espresso Book Machine, a machine that

prints books on demand. (Doc. 22, Exh. 5.)

Defendants On Demand Books and Mr. Epstein have moved to dismiss

Plaintiff’s Amended Complaint, contending that the action should be dismissed because

the Court lacks personal jurisdiction under the Florida long-arm statute and

constitutional due process requirements. In support of the motion, Defendants have

submitted the affidavits of On Demand Books CEO Dane Neller and Mr. Epstein. (Doc.

22, Exhs. 5-6.) Mr. Neller attests that On Demand Books does not transact any

business in Florida: it has not sold products, entered into contracts, installed products,

or advertised in Florida. Further, On Demand Books is not registered to do business in

Florida and has no assets in Florida. (Id. at Exh. 5.) Mr. Epstein attests that he is a

resident of New York and has no relevant contacts with Florida. (Id. at Exh. 6.) 

In his response, Plaintiff maintains that he has alleged sufficient allegations in

the Amended Complaint to support the exercise of personal jurisdiction over

Defendants. Plaintiff alleges that prior to the existence of On Demand Books, he

corresponded with Mr. Epstein and had a business meeting with a partner of Mr.

Epstein in Florida regarding his invention. Plaintiff also contends that the contractual

agreement between On Demand Books and Google to permit Google’s electronic

books to be printed through Espresso Book Machine owners support the Court’s

exercise of personal jurisdiction over On Demand Books and Mr. Epstein. (Doc. 31.)

II. DISCUSSION

Plaintiffs initially must establish a prima facie case of personal jurisdiction over a

nonresident defendant. “A prima facie case is established if the plaintiffs present

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sufficient evidence to defeat a motion for a directed verdict.” The burden then shifts to 1

the defendant to file affidavits containing allegations that, if taken as true, show that the

defendant’s conduct does not make him or her amenable to service. Where a 2

defendant submits such affidavits, the burden traditionally shifts back to the plaintiff to

produce evidence supporting jurisdiction -- unless the affidavits contain only cursory

assertions that the defendant is not subject to jurisdiction. Where the plaintiff’s 3

complaint and supporting evidence conflict with the defendant’s affidavits, the court

must construe all reasonable inferences in favor of the plaintiff. 4

In determining whether the court has personal jurisdiction over a nonresident

defendant the court employs a two-part analysis. First, the court must determine if 5

jurisdiction can be obtained over the defendants under Florida’s long-arm statute. If so, 6

the court must then decide whether the nonresident defendants have sufficient

“minimum contacts” with Florida to satisfy the constitutional requirements under the Due

Process Clause of the Fourteenth Amendment so that maintenance of the suit “does

not offend ‘traditional notions of fair play and substantial justice.’” Even if jurisdiction is 7

 Cable/Home Communication Corp. v. Network Prods., Inc., 902 F.2d 829, 855 (11t Cir. 1990) 1

(quoting Morris v. SSE, Inc., 843 F.2d 489, 492 (11th Cir. 1988)). 

 Acquadro v .Bergeron, 851 So.2d 665, 672 (Fla. 2003). 2

 Meier ex rel. Meier v. Sun Intern. Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002). 3

See id. 4

 Horizon Aggressive Growth v. Rothstein-Kass, 421 F.3d 1162, 1166 (11th Cir. 2005). 5

 See id. 6

 Id. 

7

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found under Florida’s long-arm statute, a separate review of the facts must be

undertaken by the court to determine if the constitutional test is met. 8

A. Florida’s Long-Arm Statute

Because Florida law dictates the reach of the long-arm statute, this Court must

interpret it in the same way that the Florida Supreme Court would. Therefore, this 9

Court must strictly construe the statute, and Plaintiff bears the burden of proving the 10

facts which make the long arm statute applicable to the Defendants. Florida’s long- 11

arm statute provides for two types of personal jurisdiction: specific jurisdiction under

§48.193(1), where a party’s contacts with the forum relate to the cause of action and

general jurisdiction under §48.193(2), where a party’s contacts are unrelated to the

litigation, but nonetheless are “continuous and systematic,” such as owning property,

running a business, or maintaining a bank account.

Plaintiff relies on §48.193(1) to argue that On Demand Books and Mr. Epstein

have committed tortious acts–patent infringement–in the state of Florida, thus satisfying

the requirements of the long-arm statute. Plaintiff argues that the Google Books

website’s option to purchase print version of the book–by directing consumers to

retailers who own Espresso Book Machines–is a “coordinated web-store” whereby On

 See Cable/Home Communication, 902 F.2d at 856 (quoting Venetian Salami Co. v. Parthenais, 8

554 So.2d 499, 500 (Fla. 1989)).

 Horizon Aggressive Growth, 421 F.3d at 1167. 9

Madara, 916 F.2d at 1514. 10

 Restorative Prods., Inc. v. Mmar Med. Group, Inc., No. 94-1920 CIV-T-17A, 1995 U.S. Dist. 11

LEXIS 18695, at *5 (M.D. Fla. Oct. 18, 1995); Bloom v. A. H. Pond Co., Inc., 519 F. Supp. 1162, 1168 (S.D.

Fla. 1981).

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Case 1:11-cv-00079-RV-GRJ Document 38 Filed 04/30/12 Page 4 of 13
Demand Books is offering for sale and selling products in Florida. These acts, Plaintiff

alleges, infringe on his patent and are “tortious acts” for the purposes of Florida’s longarm statute. (Doc. 31.) On Demand Books argues that the long-arm statute cannot be

invoked because no allegedly infringing sales have occurred in Florida and no Espresso

Book Machines operate in Florida. (Doc. 22.)

Because the due process analysis is dispositive of the personal jurisdiction

issue, the Court will assume for the purposes of the instant motion that the “tortious

conduct” portion of §48.193(1) has been satisfied as to Defendants On Demand Books

and Mr. Epstein.

B. Due Process

Even if the conduct of On Demand Books and Mr. Epstein falls within Florida’s

long-arm statute, the Court must determine whether each individual defendant has

sufficient minimum contacts with the forum to satisfy the due process requirements of

the Fourteenth Amendment of the Constitution so that the exercise of personal

jurisdiction does not offend “traditional notions of fair play and substantial justice.” 12

The Eleventh Circuit utilizes a three-part test to decide whether there are

sufficient minimum contacts:

[f]irst, the contacts must be related to the plaintiff’s cause of action . . .

Second, the contacts must involve some act by which the defendant

purposefully avails itself of the privilege of conducting activities within the

forum . . . Third, the defendant’s contacts with the forum must be such

 Int’l Shoe Co. v. W ashington, 326 U.S. 310, 316 (1945). 12

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Case 1:11-cv-00079-RV-GRJ Document 38 Filed 04/30/12 Page 5 of 13
that the defendant should reasonably anticipate being haled into court

there. 13

Each defendant’s contacts with the forum State must be assessed individually

rather than simply viewing them collectively. As discussed above, the minimum 14

contacts alleged by Plaintiffs are directed to the cause of action and therefore relate to

specific jurisdiction. Accordingly, the first part of the test - i.e. that the contacts are

related to the cause of action - is established. The Court will now address the contacts

of On Demand Books and Mr. Epstein individually.

On Demand Books

 Plaintiff’s argument for personal jurisdiction is premised on the sales offered

through the Google Books website. Plaintiff explains in his opposition memorandum

that computer users from around the world can access the Google Books web store,

search for titles, and order print versions of the books. Customers have the books

printed on Espresso Book Machines located at various bookstores, libraries and other

locations where Espresso Book Machines are in operation. Plaintiff does not allege

that any Espresso Book Machines operate in Florida, but alludes to On Demand Books’

plans to install more of the machines, presumably in Florida. (Doc. 31.) In the system

Plaintiff describes, Google Books offers to sell the product and the owner of the

Espresso Book Machine fulfills the order. On Demand Books’ provides a directory page

on its website that offers links to websites of third party owners of Espresso Book

 Posner v. Essex Ins. Co., 178 F.3d 1209, 1220 (11th Cir. 1999) (quoting Vermeulen v. Renault, 13

U.S.A., Inc., 985 F.2d 1534, 1546 (11th Cir. 1993)). 

 See Calder v. Jones, 465 U.S. 783, 790 (1984). 14

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Machines. These third parties complete the transaction initiated at the Google Books

site. (Id. at Exh. P.)

The instant case involves a personal jurisdiction analysis based on the Internet. 

The traditional principles guiding personal jurisdiction analysis are still applicable. 

District courts in the Eleventh Circuit have generally taken two approaches to personal

jurisdiction analysis involving websites: the Zippo sliding scale and a more traditional 15

jurisdictional analysis. 

The Zippo sliding scale is a website-tailored personal jurisdiction analysis that

considers when a website can subject an entity to personal jurisdiction through

assessing “the sufficiency of minimum contacts by measuring the degree of activity or

passivity of the website.” The Zippo court reasoned, “the likelihood that personal 16

jurisdiction can be constitutionally exercised is directly proportionate to the nature and

quality of commercial activity that an entity conducts over the Internet.” On one end of 17

the Zippo spectrum, personal jurisdiction is proper where a defendant “enters into

contracts with residents of a foreign jurisdiction that involve the knowing and repeated

transmission of computer files over the Internet.” On the other end of the Zippo 18

 Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W .D. Pa. 1997). 15

 Roblor M arketing Grp. v. GPS Indus., 645 F. Supp. 2d 1130, 1151 (S.D. Fla. 2009). See 16

also Oldfield v. Pueblo De Bahia Lora, S.A ., 558 F.3d 1210, 1219-20 (11 Cir. 2009) (discussing the th

criticism of Zippo but declining to opine as to its applicability); A lternate Energy Corp. v. Redstone,

328 F. Supp. 2d 1379, 1382 (S.D. Fla. 2004) (listing Florida cases applying the Zippo analysis);

M iller v. Berman, 289 F. Supp. 2d 1327, 1335 (M .D. Fla. 2003) (applying the Zippo sliding scale

analysis).

 Zippo, 952 F. Supp. at 1124. 17

 Id. 18

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spectrum, personal jurisdiction is improper where the defendant merely posts

information on a website accessible to users in foreign jurisdictions. In the middle of

these extremes are interactive websites where users can exchange information with a

host computer. In these cases, personal jurisdiction “is determined by examining the

level of interactivity and the commercial nature of the exchange of information that

occurs on the Web site.”19

Paralleling a sentiment shared by other circuits, other district courts in the

Eleventh Circuit have been more critical of the Zippo sliding scale, preferring a broader

traditional jurisdictional analysis. Under this more traditional approach, district courts 20

have included website interactivity in the personal jurisdiction calculus, but are often

critical of the sliding scale’s lack of guidance in cases where the defendant operates a

middle ground website. 21

Two district court cases involving facts similar to the instant case applied the

traditional personal jurisdiction analysis to conclude that defendants were not subject to

personal jurisdiction. In Roblor Marketing Group, Inc. v. GPS Industries, Inc., the

Southern District of Florida analyzed a website that provided marketing links to the

independent sites of resellers and distributors, where the defendant’s products could be

purchased, but nothing could be purchased directly from the site. Other than the

website, the defendant’s contacts with the forum consisted of a single sale within the

 Id. 19

 See Instabook Corp. v. Instantpublisher.com, 469 F. Supp. 2d 1120, 1122 (M .D. Fla. 20

2006) (noting that “ w ebsite interactivity may have some bearing on jurisdictional analysis, but it is

not determinative” ); Roblor, 645 F. Supp. 2d at 1154 (using the sliding scale analysis “ as a

guidepost” but maintaining a traditional personal jurisdiction analysis).

 See, e.g., Roblor, 645 F. Supp. 2d at 1154. 21

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state. Applying traditional due process analysis, the Roblor court found that the website

activity was insufficient to satisfy the due process requirement of minimum contacts.22

In Instabook Corp. v. Instantpublisher.com, the Middle District of Florida found

that personal jurisdiction did not exist for a defendant whose contacts consisted of two

sales within the state and a website that facilitated these sales through a process

entailing “the downloading of software, the transmission of a manuscript to the

Defendant, and the shipment of the published books through the mail.” The Instabook 23

case involved the same technology at issue in the instant case and was brought by

Plaintiff’s former company against a website that was alleged to have published books

for two Florida residents. The Instabook court held that even though the defendant had

a commercial, interactive website, the two alleged sales in Florida were not sufficient to

support the court’s exercise of personal jurisdiction over the defendant. 24

In the instant case, On Demand Books’ website–which is accessible to all

internet users and may also be visited by a Google Books customer seeking to print a

book–does not support this Court’s exercise of personal jurisdiction over On Demand

Books under either the sliding scale or traditional analysis. Consumers cannot

purchase products on the On Demand Books website. While they can click on links

that take them to other websites to purchase books, this is insufficient to support

minimum contacts. As the Middle District of Florida recently noted,“the fact that the

 Id. 22

 Instabook, 469 F. Supp. at 1126. 23

 Id. See also Zamora Radio, LLC v. Last.fm Ltd., No. 09-cv-20940, 2011 W L 2580401, 24

2011 U.S. Dis. LEXIS 69101 (S.D. Fla. June 28, 2011) (rejecting plaintiff’ s contentions of personal

jurisdiction over defendant w here w ebsite at issue allow ed visitors to sign up for a new sletter, listen

to live audio, and post comments).

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website of a company that sells products in Florida can be reached via a link on

Defendants’ website is too narrow a thread on which to find meaningful ‘contact’ for the

purposes of due process.” On Demand Books’ website activity is not purposefully 25

directed at Florida, and the presence of links to book machine owners is insufficient to

establish meaningful conduct. The website’s tools for searching for books and

receiving marketing information likewise do not rise to the level of meaningful contacts. 

(Doc. 22, p. 5.) Accordingly, On Demand Books’ website does not create the minimum

contacts necessary to satisfy the Due Process clause. 

Nor does On Demand Books’ contractual relationship with Google provide a

basis for this Court to exercise personal jurisdiction over On Demand Books. Personal

jurisdiction must be established separately for each Defendant, and while Google has

an agent in Florida and does business in Florida, jurisdiction for On Demand Books

cannot be established based on Google’s contacts with the forum. Plaintiff contends

that On Demand Books is subject to personal jurisdiction by virtue of its business

relationship with Google, which Plaintiff characterizes as a partnership. Defendants

Google and On Demand Books have agreed to an independent contractor relationship,

and to extend jurisdiction in Florida to any company that contracts with Google, an

international corporation, would thwart the due process protections that underlie the

personal jurisdiction analysis. 

Mr. Epstein

Plaintiff also asks the Court to exercise personal jurisdiction over Mr. Epstein,

alleging that Mr. Epstein has sufficient contacts with Florida. In support of this

 Dynetech Corp. v. Leonard Fitness, Inc., 523 F. Supp. 2d 1344, 1348 (M .D. Fla. 2007). 25

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contention, Plaintiff alleges that in 2000, prior to the existence of On Demand Books,

Mr. Epstein’s business partner, Michael Smolens, met with Plaintiff in Florida regarding

the invention at issue. Plaintiff alleges that this business meeting was followed by

phone calls and e-mails among Mr. Epstein, his business partner, and Plaintiff. Plaintiff

contends that Mr. Epstein called him and invited him to New York for a business

meeting. (Doc. 31.) 

The contacts alleged by Plaintiff do not rise to the level of the minimum contacts

required to comport with the Due Process Clause. A single telephone call several years

ago inviting Plaintiff to New York is insufficient. Furthermore, the e-mails provided by

Plaintiff in Exhibit T are e-mails from Michael Smolens and Frank Lehner. Mr. Epstein

appears to have been copied on some of the e-mails, but Plaintiff does not provide emails from Mr. Epstein. Although Plaintiff attempts to impute Mr. Smolen’s contacts in

Florida to Mr. Epstein, there is no evidence in the record of their alleged partnership,

and the e-mails from Mr. Smolens only once references Mr. Epstein, regarding a

telephone conversation between Mr. Smolens, Mr. Epstein and “Victor.” (Doc. 31, Exh.

T.) Plaintiff also argues that personal jurisdiction over Mr. Epstein is warranted for the

same reasons jurisdiction over On Demand Books is proper. As discussed in detail

above, there are not sufficient contacts between On Demand Books and Florida to

exercise personal jurisdiction; this argument also fails. 

Even if Plaintiff could establish minimum contacts, exercise of jurisdiction over

On Demand Books and Mr. Epstein would offend traditional notions of reasonableness

and fairness. The Supreme Court articulated a five-factor test in Burger King Corp. v.

Rudzewicz, 471 U.S. 462 (1985), to determine whether jurisdiction is reasonable and

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fair: 1) “the burden on the defendant;” 2) “the forum State’s interest in adjudicating the

dispute;” 3) “the plaintiff’s interest in obtaining convenient and effective relief;” 4) “the

interstate judicial system’s interest in obtaining the most efficient resolution of

controversies,” and 5) the “shared interest of the several States in furthering

fundamental substantive policies.”26

Weighing the five Burger King factors, a Delaware limited liability company with

no ties to Florida save a website that can be accessed in Florida tips the analysis

against the reasonableness of exercising jurisdiction. The burden on Mr. Epstein, a 27

New York resident, to defend the suit in this Court would be significant. As to the

second and third factors, although Plaintiff’s interest in resolving the dispute may be

significant, Florida’s interest in the adjudicating the dispute is minimal. “[T]he mere 28

fact that Defendant’s website is accessible to Florida residents is not enough to give

Florida a significant interest in adjudicating the matter.” None of the remaining factors 29

suggest any reason why exercising jurisdiction would be necessary to preserve

reasonableness and fairness. Accordingly, On Demand Books and Mr. Epstein’s

challenges to personal jurisdiction are due to be GRANTED.

Jurisdictional Discovery

Plaintiff asserts that he has a right “to conduct discovery to elicit further

 Burger King, 471 U.S. at 477. 26

 See Zamora Radio, No. 09-cv-20940, 2011 W L 2580401 at * 10, 2011 U.S. Dis. LEXIS 27

69101 (S.D. Fla. June 28, 2011).

 See, e.g., Response Rew ard Systems v. M eijer, Inc., 189 F. Supp. 2d 1332, 1339 (M .D. 28

Fla. 2002).

 Id. 29

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jurisdictional facts.” (Doc. 31, p. 3.) He offers no other support for his request and fails

to explain what he thinks he could or should be discovered. Plaintiff has failed to show

that the exercise of personal jurisdiction over Defendants On Demand Books and Mr.

Epstein would be proper, and there is no genuine dispute over jurisdictional facts. 30

Accordingly, Plaintiff’s request for jurisdictional discovery is due to be DENIED. 

III. RECOMMENDATION

In view of the foregoing, it is respectfully RECOMMENDED that:

1. Defendants On Demand Books and Jason Epstein’s Motion to Dismiss for

Lack of Jurisdiction should be GRANTED.

2. Plaintiff’s request for jurisdictional discovery should be DENIED.

IN CHAMBERS in Gainesville, Florida, on April 30, 2012.

s/ Gary R. Jones

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

Pursuant to Fed. R. Civ. P. 72(b)(2), a party may file specific, written objections to the

proposed findings and recommendations within 14 days after being served with a copy of this

report and recommendation. A party may respond to another party’s objections within 14 days

after being served with a copy thereof. Failure to file specific objections limits the scope of review

of proposed factual findings and recommendations.

 See, e.g., Instabook, 469 F. Supp. at 1127. 30

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