UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Federal Trade Commission

v. Civil No. 04-377-JD

Seismic Entertainment

Productions, Inc., et al.

O R D E R

In its amended complaint, the Federal Trade Commission

(“FTC”) alleges that John Robert Martinson is or has been the

chief executive officer and owner of two businesses, Mailwiper,

Inc., and Spy Deleter, Inc., that engaged in unfair acts and

practices in violation of 15 U.S.C. § 45(a). The FTC seeks

injunctive relief under 15 U.S.C. § 53(b) to stop Martinson from 

marketing and distributing spyware computer products in

conjunction with the other defendants. Martinson moves to

dismiss, asserting that the court lacks personal jurisdiction

over him. The court previously directed the parties to address

further the issue of personal jurisdiction under § 53(b), which

they have done.

Because the subject matter jurisdiction of this court is

based upon a federal question, the alleged violation of § 45(a),

the Fifth Amendment due process clause controls the personal

jurisdiction analysis. See United States v. Swiss Am. Bank,

Ltd., 274 F.3d 610, 617 (1st Cir. 2001). Further, the Federal

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Trade Commission Act, as codified at 15 U.S.C. § 53(b), provides

for nationwide service of process when the FTC seeks preliminary

or permanent injunctive relief to prevent violations of the laws

it enforces. In those circumstances, the court has personal

jurisdiction over a defendant who has sufficient minimum contacts

with the United States, rather than the forum state.

Martinson, who is a Georgia resident, does not contest that

he has sufficient minimum contacts with the United States to

satisfy Fifth Amendment due process. He argues instead that §

53(b) does not apply because he is no longer engaged in the

business the FTC sought to enjoin and, therefore, the FTC cannot

succeed in obtaining an injunction against him. In essence,

Martinson contends that personal jurisdiction depends upon the

viability of the FTC’s claim against him.

 The FTC has alleged a claim against Martinson under § 45(a)

and sought relief pursuant to § 53(b). At this stage of the

proceedings, the court does not address the merits of the claim,

but instead only weighs the facts pertinent to personal

jurisdiction to determine whether there is a “likelihood” that

jurisdictional facts exist. Boit v. Gar-Tec Prods., Inc., 967

F.2d 671, 677 (1st Cir. 1992). The court finds that the FTC has

provided a sufficient basis to support its reasonable belief that

absent an injunction Martinson will again pursue business

activities in violation of § 45(a). Further, courts have

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interpreted the injunctive relief specified in § 53(b) to include

ancillary equitable relief to redress consumer injury. See, e.g.

FTC v. Freecom Comm’ns, Inc., 401 F.3d 1192, 1203 n.6 (10th Cir.

2005); AT&T Broadband v. Tech Comm’ns, Inc., 381 F.3d 1309, 1316

(11th Cir. 2004); FTC v. Febre, 128 F.3d 530, 534 (7th Cir.

1997); United States v. Lasseter, 2005 WL 1638735, at *5 (M.D.

Tenn. June 30, 2005); FTC v. Ameridebt, Inc., 373 F. Supp. 2d

558, 563 (D. Md. 2005). Martinson does not contest that part of

the FTC’s claim. 

 Because Martinson has sufficient contacts with the United

States to satisfy due process for purposes of § 53(b), this court

has personal jurisdiction over him.

Conclusion

For the foregoing reasons, the defendant’s motion to dismiss

(document no. 55) is denied.

SO ORDERED.

_

Joseph A. DiClerico, Jr.

United States District Judge

September 22, 2005

cc: Ralph A. Jacobs, Esquire

Steven M. Notinger, Esquire

W. Scott O’Connell, Esquire

Charulata B. Pagar, Esquire

Laura M. Sullivan, Esquire

Martha Van Oot, Esquire

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