UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Civil No. 10-3295(DSD/FLN)

Agri-Cover, Inc.,

Plaintiff,

v. ORDER

Christensen Manufacturing Corp.,

Defendant.

Donald W. Niles, Esq., Niles Law Office, PA, 121 Colfax

Avenue S.W., Wadena, MN 56482; Robert C. Freed, Esq.,

Stephanie M. Kwong, Esq. and Moore & Hansen, PLLP, 225

South Sixth Street, Suite 4850, Minneapolis, MN 55402,

counsel for plaintiff.

Matthew R. Salzwedel, Esq., David W. Asp, Esq. and

Lockridge, Grindal & Nauen, PLLP, 100 Washington Avenue

South, Suite 2000, Minneapolis, MN 55401; Richard C.

Woodbridge, Esq., Christopher R. Kinkade, Esq. and Fox &

Rothschild, LLP, 997 Lenox Drive, Building 3,

Lawrenceville, NJ 08648, counsel for defendant.

This matter is before the court upon the motion to dismiss or

transfer venue by defendant Christensen Manufacturing

(Christensen). Based on a review of the file, record and

proceedings herein, the court grants the motion in part.

BACKGROUND

This trademark dispute arises out of the manufacture and sale

of pickup-truck accessories under the ACCESS and FULL ACCESS

trademarks. Plaintiff Agri-Cover, Inc. (Agri-Cover) is a North

Dakota corporation with its principal place of business in

Case 3:11-cv-03922-FLW-TJB Document 32 Filed 06/29/11 Page 1 of 12 PageID: 385
Jamestown, North Dakota. Compl. ¶ 1. Agri-Cover manufactures and

sells truck accessories, including pickup-truck tonneau covers and

storage systems, under its registered ACCESS trademark. Id.

¶¶ 6–11. Christensen is a New Jersey corporation with its

principal place of business in Pennington, New Jersey. Id. ¶ 2. 

Christensen manufactures and sells truck accessories, including

pickup-truck tool boxes under its registered FULL ACCESS trademark. 

Agri-Cover claims that Christensen is infringing its ACCESS

trademark by selling products under the FULL ACCESS name; it filed

the instant action on August 3, 2010, asserting numerous claims

under federal and state law. Christensen moves to dismiss for lack

of personal jurisdiction or to transfer venue to the District of

New Jersey. The court now considers the motion.

DISCUSSION

I. Personal Jurisdiction

To survive a motion to dismiss for lack of personal

jurisdiction, a plaintiff must establish a prima facie case that

the forum state has personal jurisdiction over the defendant. See

Stevens v. Redwing, 146 F.3d 538, 543 (8th Cir. 1998). The court

“look[s] at the facts in the light most favorable to the nonmoving

party and resolve[s] all factual conflicts in favor of that party.” 

Dakota Indus., Inc. v. Dakota Sportswear, Inc., 946 F.2d 1384, 1387

(8th Cir. 1991) (citations omitted). A federal court may assume

2

Case 3:11-cv-03922-FLW-TJB Document 32 Filed 06/29/11 Page 2 of 12 PageID: 386
jurisdiction over a nonresident defendant “only to the extent

permitted by the long-arm statute of the forum state and by the Due

Process Clause.” Romak USA, Inc. v. Rich, 384 F.3d 979, 984 (8th

Cir. 2004) (citation omitted). Because the Minnesota long-arm

statute “confers jurisdiction to the fullest extent permitted by

the Due Process Clause,” the court need only consider due process

requirements. Coen v. Coen, 509 F.3d 900, 905 (8th Cir. 2007)

(citation omitted).

To satisfy due process, a defendant must have “sufficient

minimum contacts” with the forum state such that maintaining the

suit “does not offend traditional notions of fair play and

substantial justice.” Romak, 384 F.3d at 984 (citations and

internal quotation omitted). “Sufficient contacts exist when [a]

defendant’s conduct and connection with the forum state are such

that [it] should reasonably anticipate being haled into court

there.” Coen, 509 F.3d at 905 (citations omitted). A defendant

should reasonably anticipate being haled into court in a forum

state within which it “purposefully avail[ed] itself of the

privilege of conducting activities, ... thus invoking the benefits

and protections of [the state’s] laws.” Id. (citation omitted). 

Contacts that are “random, fortuitous or attenuated” do not support

purposeful availment. Digi-Tel Holdings, Inc. v. Proteq Telecomms.

(PTE), Ltd., 89 F.3d 519, 522 (1996). “Jurisdiction is proper,

however, where the contacts proximately result from actions by the

3

Case 3:11-cv-03922-FLW-TJB Document 32 Filed 06/29/11 Page 3 of 12 PageID: 387
defendant [itself] that create a substantial connection with the

forum State.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475,

(1985) (citation and internal quotation marks omitted). 

A court considers five factors to measure minimum contacts:

“(1) the nature and quality of a defendant’s contacts with the

forum state; (2) the quantity of such contacts; (3) the relation of

the cause of action to the contacts; (4) the interest of the forum

state in providing a forum for its residents; and (5) the

convenience of the parties.” Dever v. Hentzen Coatings, Inc., 380

F.3d 1070, 1073-74 (8th Cir. 2004) (citation omitted). The first

three factors carry significant weight. See id.

Agri-Cover argues that the court has specific personal

jurisdiction over Christensen. Specific jurisdiction exists when

the cause of action “arise[s] out of” or “relate[s] to” a

defendant’s activities within the forum state. St. Jude Med., Inc.

v. Lifecare Int’l, Inc., 250 F.3d 587, 591 (8th Cir. 2001)

(citation and internal quotation marks omitted). “[T]he central

inquiry is the relationship among the defendant, the forum, and the

litigation.” Guinness Import Co. v. Mark VII Distribs., Inc., 153

F.3d 607, 614 (8th Cir. 1998) (citation and internal quotation

marks omitted).

A. Forum Contacts

Viewing the facts in the light most favorable to Agri-Cover,

Christensen has few contacts with Minnesota. It is not registered

4

Case 3:11-cv-03922-FLW-TJB Document 32 Filed 06/29/11 Page 4 of 12 PageID: 388
to do business in Minnesota, has no registered agent in Minnesota,

does not own property in Minnesota, does not manufacture products

in Minnesota, does not employ sales representatives in Minnesota

and its employees and principals have not traveled to Minnesota for

business. However, Christensen has several contacts specific to

FULL ACCESS in Minnesota. First, Christensen sent brochures that

include FULL ACCESS products to 253 people and five dealers in

Minnesota. Moreover, three dealers with whom it works in 1

Minnesota have sold FULL ACCESS products. Christensen argues that

its sales in Minnesota are “few and far between” and merely

fortuitous. The court disagrees. As a result of making itself

available in Minnesota, Christensen sold 25 FULL ACCESS products in

Minnesota between 2005 and 2011, either directly or through the

three dealers. Although its sales were modest, they occurred

yearly over the course of six years. Under the facts of this case,

the court cannot construe the sales as so random, fortuitous or

attenuated that they to rise to the level of a constitutional

violation. 

B. Relationship of Cause of Action to Contacts 

The cause of action is directly related to a subset of

Christensen’s contacts with Minnesota. The sale of FULL ACCESS

products forms the basis of Agri-Cover’s claims. Christensen

This is not a case where a seller merely maintains a

1

passive, global internet presence.

5

Case 3:11-cv-03922-FLW-TJB Document 32 Filed 06/29/11 Page 5 of 12 PageID: 389
maintains relationships with twelve dealers in Minnesota. Although

only three have sold FULL ACCESS products, it provides others with

promotional materials. Christensen sells and delivers FULL ACCESS

products to Minnesota, and it is evident that it has purposefully

availed itself of the Minnesota market: it is reasonably

foreseeable that it might be haled into court as a result of its

actions. 

C. Forum Interest and Convenience

Neither party is a resident of Minnesota. Minnesota has a

general interest in ensuring that trademarks are observed, but it

has little specific interest in the trademarks at issue in this

action. Therefore, this factor weighs slightly against finding

jurisdiction. 

Christensen argues that litigation in Minnesota will be

“extremely burdensome” and place it at a “severe disadvantage”

because it is a small company whose potential witnesses are three

principals who reside near New Jersey. The court disagrees. It

has hired local counsel, and moreover, “modern transportation and

communication have made it much less burdensome for a party sued to

defend himself in a State where he engages in economic activity.” 

World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 293 (1980)

(quoting McGee v. Int’l Life Ins. Co., 355 U.S. 220, 222 (1957)). 

Advances in electronic communications, document storage and video

conferencing since 1957 have significantly increased the ease of

6

Case 3:11-cv-03922-FLW-TJB Document 32 Filed 06/29/11 Page 6 of 12 PageID: 390
litigation in different forums. Accord CompuServe, Inc. v.

Patterson, 89 F.3d 1257, 1262 (6th Cir. 1996) (“[T]here is less

perceived need today for the federal constitution to protect

defendants from ‘inconvenient litigation,’ because all but the most

remote forums are easily accessible for the pursuit of both

business and litigation.”). Here, although Christensen will suffer

some inconvenience by litigating in a foreign forum, being haled

into court is always inconvenient and disruptive, whether in New

Jersey or Minnesota. As the Supreme Court noted in Burger King,

although “inconvenience may at some point become so substantial as

to achieve constitutional magnitude ... this is not such a case.” 

471 U.S. at 484.

Based on the five factors, the court finds that Christensen

has sufficient minimum contacts with Minnesota such that exercise

of specific personal jurisdiction comports with due process. 

Therefore, dismissal is not warranted.

II. Transfer of Venue

Contacts sufficient to meet the requirements of due process do

not necessarily mean that a particular forum is proper or

convenient. The court may transfer a case to another forum in

which it might have been brought “[f]or the convenience of parties

and witnesses [and] in the interest of justice ....” 28 U.S.C.

§ 1404(a). A foreign plaintiff’s choice of forum “is entitled to

substantially less deference.” In re Apple, 602 F.3d 909, 913 (8th

7

Case 3:11-cv-03922-FLW-TJB Document 32 Filed 06/29/11 Page 7 of 12 PageID: 391
Cir. 2010). Transfer “to a forum likely to prove equally

convenient or inconvenient,” is not warranted, “and a transfer

should not be granted if the effect is simply to shift the

inconvenience to the party resisting transfer.” Id. at 915. The

court evaluates “the particular circumstances at hand and ... all

relevant factors” including “(1) the convenience of the parties,

(2) the convenience of the witnesses, and (3) the interests of

justice.” Terra Int’l, Inc. v. Miss. Chem. Corp., 119 F.3d 688,

691 (8th Cir. 1997). 

A. Convenience of the Parties

Under the first factor, the court considers the travel

expenses that the parties “would likely incur ... for airfare,

meals and lodging, and losses in productivity from time spent away

from work.” In re Apple, 602 F.3d at 913. As an initial matter,

the court notes that Minnesota is not a convenient forum for either

party; both parties must travel to the forum. There is no evidence

that either party maintains records in Minnesota. In contrast, it

is undisputed that documentary evidence is present in the parties’

home states. 

Moreover, other sources of evidence appear lacking in

Minnesota. Agri-Cover argues that it works with 25 dealers in

Minnesota. Christensen responds that only one Minnesota dealer

sells both Agri-Cover and Christensen products, and that dealer

last sold a Christensen product before FULL ACCESS products were

8

Case 3:11-cv-03922-FLW-TJB Document 32 Filed 06/29/11 Page 8 of 12 PageID: 392
available. In contrast, 23 dealers in or near New Jersey sell both

Agri-Cover and Christensen products. These 23 dealers have a much

greater likelihood of offering relevant testimony than the single

Minnesota dealer. 

In short, potential witnesses in this action are present in

both North Dakota and New Jersey. As a result, travel to North

Dakota and New Jersey to gather evidence will be necessary

regardless of venue. If the case remains in Minnesota, both

parties must travel to the court. Transferring the case to New

Jersey, however, would significantly reduce inconvenience, as both

party and nonparty witnesses are present there. Therefore, this

factor is weighs in favor of transfer.

B. Convenience of the Witnesses

The second factor “determines the relative ease of access to

sources of proof.” Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508

(1947). The court considers the number witnesses, their location

and the court’s preference for live testimony. See Graff v. Qwest

Commc’n Corp., 33 F. Supp. 2d 1117, 1121 (D. Minn. 1999). The

convenience of the witnesses is not, however, “a contest between

the parties as to which of them can present a longer list of

possible witnesses located in the respective districts.” Nelson v.

Master Lease Corp., 759 F. Supp. 1397, 1402 (D. Minn. 1991); see

Terra Int’l, 119 F.3d at 696. Moreover, “the party seeking the

transfer must clearly specify the essential witnesses to be called

9

Case 3:11-cv-03922-FLW-TJB Document 32 Filed 06/29/11 Page 9 of 12 PageID: 393
and must make a general statement of what [its] testimony will

cover.” Nelson, 759 F. Supp. at 1402. 

The court has already noted that Christensen identifies 23

dealers located within 100 miles of the District of New Jersey that

sell both Agri-Cover and Christensen products and might testify

about likely or actual confusion. Healey Decl. ¶ 41. In contrast,

Agri-Cover identifies 25 dealers in Minnesota that sell Agri-Cover

products, but does not indicate that any of the dealers have any

knowledge of Christensen FULL ACCESS products. See Miller Decl.

¶ 5. As a result, there is no basis on which to conclude that the

25 Minnesota dealers have any evidence or testimony relevant to

this action. Therefore this factor favors transfer.

C. Interests of Justice

The court considers several factors in evaluating the

interests of justice, including: “(1) judicial economy, (2) the

plaintiff’s choice of forum, (3) the comparative costs to the

parties of litigating in each forum, (4) each party’s ability to

enforce a judgment, (5) obstacles to a fair trial, (6) conflict of

law[s] issues, and (7) the advantages of having a local court

determine the questions of local law.” Terra Int’l, 119 F.3d at

696. 

1. Judicial Economy

The parties agree that the District of Minnesota carries a

greater caseload than the District of New Jersey. Caseload,

10

Case 3:11-cv-03922-FLW-TJB Document 32 Filed 06/29/11 Page 10 of 12 PageID: 394
however, is not a dispositive factor. In re Apple, 602 F.3d at

915. Therefore, this factor slightly favors transfer to New

Jersey.

2. Plaintiff’s Choice of Forum 

“In general, federal courts give considerable deference to a

plaintiff’s choice of forum,” but this deference is based on “an

assumption that the plaintiff’s choice will be a convenient one.” 

Id. at 913 (citation and internal quotation marks omitted). Less

deference is warranted when, as here, the plaintiff is from another

state. In this case, there are “relevant connection[s]” between

Minnesota and the parties, “potential witnesses, [and] the

dispute.” Id. These connections, however, are minimal. 

Therefore, this factor weighs slightly in favor of Minnesota. 

3. Costs of litigating, Obstacles to a Fair Trial,

Ability to Enforce Judgment, Conflict of Laws and

Local Interpretation of Law

The remaining factors are neutral. The court has already

determined that, regardless of forum, the parties will likely incur

travel costs for depositions. If the action remains in Minnesota,

both parties will need to travel out of state to the forum; if the

action is transferred to New Jersey, only one party will need to do

so. As a result, the cost of litigation and obstacles to a fair

trial do not strongly favor either forum. A judgment may be

enforced in either forum. Lastly, the parties do not identify an

outcome-determinative conflict between the laws of Minnesota and

11

Case 3:11-cv-03922-FLW-TJB Document 32 Filed 06/29/11 Page 11 of 12 PageID: 395
New Jersey. See Leonards v. S. Farm Bureau Cas. Ins. Co., 279 F.3d

611, 612 (8th Cir. 2002). Therefore these factors do not favor

either forum. 

Based on a consideration of all the factors, the court finds

that Christensen has shown New Jersey to be a more convenient

forum, and transfer is warranted.2

CONCLUSION

Accordingly, based on the above, IT IS HEREBY ORDERED that the

motion [ECF No. 10] is granted in part:

1. The motion is denied as to dismissal for lack of personal

jurisdiction; 

2. The motion is granted as to transfer; and 

3. This action is transferred to the United States District

Court for the District of New Jersey.

Dated: June 29, 2011

s/David S. Doty 

David S. Doty, Judge

United States District Court 

The court notes that had it not found personal jurisdiction 2

over Christensen, it would have transferred the case to New Jersey

under 28 U.S.C. § 1406(a).

12

Case 3:11-cv-03922-FLW-TJB Document 32 Filed 06/29/11 Page 12 of 12 PageID: 396