UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CLEMENT BROWN, JR.

Plaintiff, Case No. 08-14572

v. Hon. John Corbett O’Meara

THE FUNKTIONWEAR, INC.,

d/b/a D.S. SALES CO.,

Defendant.

____________________________/

ORDER GRANTING DEFENDANT’S MOTIONS TO 

DISMISS AND TO FILE REVISED EXHIBIT

Before the court is Defendant’s motion to dismiss or transfer, filed March 3, 2009. 

Plaintiff filed a response on May 29, 2009; Defendant submitted a reply brief on June 5, 2009. 

Defendant also filed a motion for leave to file a revised affidavit on May 8, 2009, to which

Plaintiff responded on May 18, 2009. The court heard oral argument on August 13, 2009, and

took the matter under advisement. For the reasons discussed below, Defendant’s motions are

granted.

BACKGROUND FACTS

Plaintiff Clement Brown, Jr., filed his complaint on October 28, 2008, alleging that The

Funktionwear, Inc. (“TFI”) engaged in copyright infringement and unfair competition by selling

garments that infringe on his “Laundry Money” design. In the complaint, Plaintiff, a Michigan

resident, contends that he purchased the allegedly infringing t-shirts from TFI while at a trade

show in Las Vegas, Nevada. TFI is a California corporation with its principal place of business

in California. TFI does not have property, offices, or employees in Michigan. Seeking dismissal

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or transfer, TFI contends that the court lacks personal jurisdiction over it and that venue is

improper. 

In support of its motion, TFI submitted the affidavit of its owner and president, Dae Joon

Choe, who stated that “The Funktionwear, Inc. does not sell or ship goods directly to any

Michigan customer. To the extent any Funktionwear customer resides in Michigan, I am

unaware of that fact and was unaware of that fact at the time any sale was made outside of

Michigan.” Def.’s Ex. A at ¶ 10. With leave of the court, Plaintiff conducted limited discovery

as to whether TFI ships goods to Michigan. Plaintiff obtained two invoices from Mr. Alan’s

Men’s Bootery in Pontiac, Michigan, showing that TFI did ship approximately $9,000 worth of

merchandise to that store in November 2007. It does not appear from the face of the invoices

that the merchandise infringes on Plaintiff’s Laundry Money design.

In response to the invoices, TFI seeks leave to submit a revised affidavit from Dae Joon

Choe, explaining in more detail the nature of its business. According to Choe, TFI primarily

sells its goods through a retail store in Oakland, California. In addition, Choe regularly travels to

trade shows around the country on TFI’s behalf. Choe has not attended any trade shows in

Michigan. TFI sells items on a wholesale basis at the trade shows. At these trade shows, TFI

regularly sells merchandise on hand to buyers without collecting information about the buyers’

locations. TFI also accepts orders for goods to be shipped from its warehouse or from one of its

distributors. Choe believes that the orders from Mr. Alan’s Bootery were transmitted to TFI at a

trade show outside of Michigan, because TFI does not advertise in or solicit business from

Michigan.

Choe further states that, for the last five years, its annual sales revenue was

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 Plaintiff contends that Choe’s original statement that “TFI does not sell or ship goods

directly to any Michigan customer” is false. Defendant responds that Choe meant that he did not

sell directly to “customers in Michigan” whereas Plaintiff took it to mean “customers who reside

in Michigan.” Defendant seeks to file an amended affidavit to clarify this ambiguity. Viewing

the original and revised affidavits in context, it does not appear that they are inconsistent. The

court will grant Defendant leave to file the revised affidavit. 

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approximately two to three million dollars. Choe contends that, to the extent TFI has sold

merchandise to customers located in Michigan, such sales were initiated at trade shows outside

of Michigan. Choe believes that over the last ten years, TFI has engaged in transactions with

thirty or fewer entities that have locations in Michigan, meaning approximately three or fewer

per year. Choe contends that TFI does not “regularly or customarily ship or sell any goods

directly to Michigan customers.” Revised Affidavit at ¶ 30.1

 Choe further testifies that TFI is not

licensed to do business in Michigan, is not listed in any Michigan phone book or directory, and

does not own or maintain a website. 

LAW AND ANALYSIS

Personal jurisdiction can be general, where the defendant has continuous and systematic

contact with the forum state, or limited (also known as specific), where the subject matter of the

lawsuit is related to the defendant's contacts with the forum state. See Sports Auth. Mich. Inc. v.

Justballs, Inc., 97 F. Supp. 2d 806, 810 (E.D. Mich. 2000) (Woods, J.). In Michigan, courts have

general jurisdiction over a corporation when it incorporates under Michigan laws, consents to be

sued in Michigan, or carries on a “continuous and systematic part of its general business within

the state.” M.C.L. § 600.711. 

Plaintiff argues that the court has general personal jurisdiction over TFI because Choe

admitted that TFI engaged in transactions with Michigan-based customers approximately thirty

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times over the last ten years. In light of all the facts, however, this is insufficient to confer

general personal jurisdiction in Michigan. See Hi-Tex, Inc. v. TSG, Inc., 87 F. Supp. 2d 738,

742-43 (E.D. Mich. 2000) (Duggan, J.). TFI does not solicit business in Michigan, but has sold

products to Michigan residents at trade shows outside of Michigan. TFI estimates that sales to

Michigan-based customers constitute less than one percent of its annual revenue. TFI does not

have an office or employees in Michigan and does not advertise in Michigan. TFI’s business

contacts with Michigan are not “continuous and systematic” enough to create general personal

jurisdiction. See id. (finding no general jurisdiction over defendant that provided fabric finishing

services to Michigan customers outside of Michigan, where such services constituted less than

one percent of its business).

Plaintiff also contends that the court may exercise specific personal jurisdiction over TFI. 

In analyzing specific jurisdiction, the court must engage in a two-step process: “(1) first, the

court must determine whether any of Michigan’s relevant long-arm statutes authorize the

exercise of jurisdiction over Defendants; and, if so, (2) the court must determine whether

exercise of that jurisdiction comports with constitutional due process.” Air Products and

Controls, Inc. v. Safetech Int’l, Inc., 503 F.3d 544, 550 (6th Cir. 2007). See also Green v.

Wilson, 455 Mich. 342, 350-52 (1997). Plaintiff appears to argue that the applicable long-arm

statute is satisfied because TFI has conducted “[t]he transaction of any business within the state.” 

M.C.L. § 600.715 (corporations; limited personal jurisdiction). To the extent this provision is

satisfied, however, an exercise of personal jurisdiction over TFI would not comport with due

process. 

Three criteria must be met to satisfy due process concerns: 

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 Eastman Outdoors, Inc. v. Serene Innovations, Inc., 2008 WL 1735329 (E. D. Mich.

April 11, 2008) (Rosen, J.), relied upon by Plaintiff, is distinguishable. In that case, the

defendant reached out to a Michigan company to purchase the company’s product from

Michigan. The defendant then copied the product and attempted to sell it at a trade show in Las

Vegas. There is no evidence here that Defendant transacted business with Plaintiff or another

Michigan company in Michigan. 

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First, the defendant must purposefully avail himself of the

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

the forum state. Second, the cause of action must arise from the

defendant’s activities there. Finally, the acts of the defendant or

consequences caused by the defendant must have a substantial

enough connection with the forum state to make the exercise of

jurisdiction over the defendant reasonable.

LAK, Inc. v. Deer Creek Enter., 885 F.2d 1293, 1299 (6th Cir. 1989) (quoting Southern Machine

Co. v. Mohasco Indus. Inc., 401 F.2d 374, 381 (6th Cir. 1968)). The first criterion – a showing

that the defendant has “purposefully availed itself of the privilege of transacting business” in the

forum state, thus invoking the benefits and protections of its laws – is “the sine qua non for in

personam jurisdiction.” Id. (quoting Mohasco, 401 F.2d at 381-82). The “purposeful availment”

prong is satisfied by the “kind of substantial relationship with the forum state that invokes, by

design, ‘the benefits and protections of its laws’ as opposed to a mere ‘collateral relation to the

forum state.’” Id. (citations omitted).

TFI has not sought the “benefits and protections” of Michigan law. It has not “reached

out” to transact business in Michigan, but rather has sold products to Michigan-based customers

at trade shows outside of Michigan.2

 This is not the “kind of substantial relationship” with

Michigan that is sufficient to satisfy the “purposeful availment” prong of the due process test. 

See Sports Authority Mich., Inc. v. Justballs, Inc., 97 F. Supp.2d 806, 812 (E.D. Mich. 2000)

(“Michigan case law suggests that a business transaction, conducted as a result of information

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gathered at a show held in another state is insufficient to constitute purposeful

availment.”)(citing Gooley v. Jefferson Beach Marina, Inc., 177 Mich. App. 26, 29-32, 441

N.W.2d 21 (1989)); Hi-Tex, 87 F. Supp. 2d at 744 (textile finisher that provides services in

North Carolina and Pennsylvania for Michigan-based customers, but that did not solicit such

business, did not satisfy “purposeful availment’ prong). Because Plaintiff cannot show that the

“purposeful availment” prong is satisfied, the court finds that an exercise of personal jurisdiction

over TFI would not comport with due process. Accordingly, the court will dismiss this action

for lack of personal jurisdiction.

ORDER

IT IS HEREBY ORDERED that Defendant’s motion to file revised exhibit is

GRANTED.

IT IS FURTHER ORDERED that Defendant’s motion to dismiss is GRANTED.

s/John Corbett O’Meara

United States District Judge

Date: August 18, 2009

I hereby certify that a copy of the foregoing document was served upon the parties of

record on this date, August 18, 2009, by electronic and/or ordinary mail.

s/William Barkholz

Case Manager

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