dest_id
int64 456
12.5M
| source_id
int64 457
12.5M
| dest_date
stringlengths 4
10
| dest_court
stringclasses 392
values | dest_name
stringlengths 3
1.01k
| dest_cite
stringlengths 23
1.03k
| source_date
stringlengths 4
10
| source_court
stringclasses 358
values | source_name
stringlengths 3
233
| source_cite
stringlengths 24
254
| passage_id
stringlengths 5
12
| quote
stringlengths 13
10.1k
| destination_context
stringlengths 5
14.3k
|
|---|---|---|---|---|---|---|---|---|---|---|---|---|
5,751,277 | 9,435,945 | 2009-11-13 | United States District Court for the Eastern District of Michigan | Weather Underground, Inc. v. Navigation Catalyst Systems, Inc. | Weather Underground, Inc. v. Navigation Catalyst Systems, Inc., 688 F. Supp. 2d 693 (2009) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_0 | [a]n inference arises that the third factor is satisfied if the first two requirements are met. | In other words, so long as the cause of action has “[a] substantial connection with [a] defendant’s in-state activities,” it is not necessary that the suit formally arise from [a] defendant’s contacts with the forum state. See WEDGE Group, Inc., 882 F.2d at 1091 (quoting Mohasco, 401 F.2d at 384 n. 27).
The activities of NCS satisfy this second prong. Here, Plaintiffs claims would not have occurred in absence of NCS’s targeting of Plaintiff. Given the lenient standard and that the cause of action need not “formally” arise out of the contact, the Court finds Plaintiff has made a prima facie showing of jurisdiction as to NCS. Even crediting Defendants’ insistence that “automated processes” generate the domain names based on “generic or descriptive words” (Jacoby Dec. ¶ 5), there is no question that NCS set in motion the Web sites.
Therefore, the Court finds that NCS’s activities gave rise to Plaintiffs cause of action and thus satisfy the second element of the Mohasco test.
3.
As to the third and last prong, “ |
5,751,277 | 9,435,945 | 2009-11-13 | United States District Court for the Eastern District of Michigan | Weather Underground, Inc. v. Navigation Catalyst Systems, Inc. | Weather Underground, Inc. v. Navigation Catalyst Systems, Inc., 688 F. Supp. 2d 693 (2009) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_57 | the burden on the defendant, the interest of the forum state, the plaintiffs interest in obtaining relief, and the interests of other states in securing the most efficient resolutions of controversies. | Nevertheless, courts look at several factors when examining the requirement of reasonableness, including “ |
5,751,277 | 9,435,945 | 2009-11-13 | United States District Court for the Eastern District of Michigan | Weather Underground, Inc. v. Navigation Catalyst Systems, Inc. | Weather Underground, Inc. v. Navigation Catalyst Systems, Inc., 688 F. Supp. 2d 693 (2009) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_57 | obtaining the most efficient resolution of controversies, | Am. Greetings Corp., 839 F.2d at 1169-70 (quoting Asahi Metal Indus. v. Superior Court, 480 U.S. 102, 113, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987)).
The Court is cognizant that the Sixth Circuit has routinely upheld specific jurisdiction in cases where doing so forced the defendant to travel to the forum state, see, e.g., Lanier v. Am. Bd. of Endodontics, 843 F.2d 901, 911-12 (6th Cir.1988) (upholding jurisdiction in Michigan over Illinois defendant); Am. Greetings Corp. v. Cohn, 839 F.2d 1164, 1170-71 (6th Cir.1988) (allowing jurisdiction in Michigan over California defendant), this is not a ease where the exercise of jurisdiction comports with any notion of fair play. The burden on NCS is outweighed by Michigan’s interest in protecting its citizens from tortious interference with their trademarks as well as Plaintiffs interest in “ |
3,842,957 | 9,435,945 | 2012-05-14 | United States District Court for the Eastern District of Michigan | Ajuba International, L.L.C. v. Saharia | Ajuba International, L.L.C. v. Saharia, 871 F. Supp. 2d 671 (2012) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_0 | [a]n inference arises that the third factor is satisfied if the first two requirements are met. | Since Defendants’ undertook actions to cause effects in Michigan, the “purposeful availment” element of the due process analysis is satisfied. See Air Products, 503 F.3d at 553 (the existence of intentional tortious conduct directed at a forum resident “enhances” a defendant’s contacts with the forum state for purposes of a purposeful availment analysis).
The second part of the due process test is also satisfied; an overwhelming majority of Plaintiffs’ claims arise from Defendants’ contacts with Michigan. The breach of contract claim arises directly out of Saharia’s 2005 Noncompetition Agreement with Ajuba International. As for the tort claims, Saharia accessed Ajuba International’s trade secrets and customer relationships through his status as an agent and de facto officer of Ajuba International to benefit himself and the AGS entities. Defendants took advantage of Saharia’s relationship with Ajuba International by advancing their conspiracy of-misappropriation and unfair competition while Saharia was still representing himself as an agent of Ajuba International. These misrepresentations enabled Defendants to move forward with their objectives in secret, prolonging their ability to access trade secrets and manipulate customer and employee relationships to Plaintiffs’ detriment. But for these relationships with Michigan-based companies, Defendants’ scheme of wrongdoing would not be possible and a substantial majority of Plaintiffs’ claims would not exist. Accordingly, Defendants’ conduct satisfies the second prong of the due process test.
As to the third “reasonableness of jurisdiction” part of the test, “ |
3,842,957 | 9,435,945 | 2012-05-14 | United States District Court for the Eastern District of Michigan | Ajuba International, L.L.C. v. Saharia | Ajuba International, L.L.C. v. Saharia, 871 F. Supp. 2d 671 (2012) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_57 | the burden on the defendant, the interest of the forum state, the plaintiffs interest in obtaining relief, and the interests of other states in securing the most efficient resolutions of controversies. | Bird v. Parsons, 289 F.3d 865, 875 (6th Cir. Notwithstanding this inference, courts often look at several factors when examining the reasonableness requirement, including “ |
3,908,438 | 9,435,945 | 2013-03-29 | United States District Court for the Eastern District of Virginia | Schreiber v. Dunabin | Schreiber v. Dunabin, 938 F. Supp. 2d 587 (2013) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_19 | not using the [registered trademark] in connection with the sale, distribution or advertising of goods and services, | Consequently, because registrars do not “use” marks in commerce, they are not subject to liability. in Bird, the Sixth Circuit explained that the defendant registrar was “ |
4,291,858 | 9,435,945 | 2012-11-27 | United States District Court for the Southern District of Ohio | Opportunity Fund, LLC v. Epitome Systems, Inc. | Opportunity Fund, LLC v. Epitome Systems, Inc., 912 F. Supp. 2d 531 (2012) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_14 | traditional notions of fair play and substantial justice.’ | Ohio Rev.Code § 2307.382(A)(1); Slate Rock Construction Co., Ltd. v. Admiral Ins. Co., No. 2:10-cv-1031, 2011 WL 3841691 at *2 (S.D.Ohio Aug. 30, 2011). The Supreme Court of Ohio has broadly construed the meaning of “transacting any business in Ohio,” which does not require physical presence in Ohio. Ky. Oaks Mall Co. v. Mitchell’s Formal Wear, 53 Ohio St.3d 73, 559 N.E.2d 477, 479-80 (1990); Goldstein v. Christiansen, 70 Ohio St.3d 232, 638 N.E.2d 541, 544 (1994).
The facts pled regarding Epitome’s interactions with Plaintiff constitute “transacting business in Ohio” within the broad meaning of the statute. Epitome and Opportunity Fund — an Ohio corporation with its primary place of business in Ohio — together executed the May 2008 Loan and Security Agreement. That agreement lists Opportunity Fund as an “investing entity’-’ in Epitome and grants Opportunity Fund a security interest in all of Epitome’s assets, including its stock, intellectual property, customer lists, etc., as collateral for Opportunity Fund’s investments. (See Doc. 26, Ex. A at 1-5.) Epitome and Opportunity Fund also together executed the June 2008 Secured Promissory. Note, which memorializes Plaintiff’s six-figure investment in Epitome and created an ongoing obligation for Epitome to repay that loan, with interest. Plaintiffs assertion of these transactions is sufficient to make a prima facie showing that personal jurisdiction over Epitome is authorized under Ohio’s long arm statute. Due Process
In evaluating whether personal jurisdiction comports with due process, the Court must determine whether there are sufficient minimum contacts between the nonresident defendant and the forum state so as not to offend ‘“traditional notions of fair play and substantial justice. |
4,291,858 | 9,435,945 | 2012-11-27 | United States District Court for the Southern District of Ohio | Opportunity Fund, LLC v. Epitome Systems, Inc. | Opportunity Fund, LLC v. Epitome Systems, Inc., 912 F. Supp. 2d 531 (2012) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_27 | If a defendant’s contacts with the forum state are related to the operative facts of the controversy, then an action will be deemed to have arisen from those contacts. | Id. (quoting Burger King, 471 U.S. at 479, 105 S.Ct. 2174).
Epitome’s alleged contacts with Ohio satisfy this standard. In executing the Loan and Security Agreement and Secured Promissory Note, Epitome purposely entered an ongoing relationship with the Plaintiff Ohio corporation in order to gain the benefit of Opportunity Fund’s substantial investment capital. Moreover, that relationship contemplated future consequences. These contracts not only created an ongoing obligation for Epitome to repay its debt to Opportunity Fund, but also granted the Ohio company a conditional right to $100,000 worth of Epitome’s assets should it default on its obligations. Epitome’s contacts are therefore hardly random or fortuitous in nature, but rather a purposeful availment of the privilege of transacting business on Ohio. See Burnshire Dev., LLC v. Cliffs Reduced Iron Corp., 198 Fed.Appx. 425, 432 (6th Cir.2006) (holding that the Ohio “transacting any business” standard is coextensive with the purposeful availment prong of constitutional analysis).
ii. Arising from Activities in Forum State
To establish specific jurisdiction, the cause of action at issue must arise from the defendant’s activities in the forum state. Air Prods., 503 F.3d at 552. To meet this requirement, a plaintiff must establish at least a “causal connection” between a defendant’s activities in the forum state and the harm to the plaintiff. “ |
4,291,858 | 9,435,945 | 2012-11-27 | United States District Court for the Southern District of Ohio | Opportunity Fund, LLC v. Epitome Systems, Inc. | Opportunity Fund, LLC v. Epitome Systems, Inc., 912 F. Supp. 2d 531 (2012) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_57 | including ‘the burden on the defendant, the interest of the forum state, the plaintiffs interest in obtaining relief, and the interest of other states in securing the most efficient resolution of controversies.’ | When making the “reasonableness” inquiry, courts consider several factors, “including ‘the burden on the defendant, the interest of the forum state, the plaintiffs interest in obtaining relief, and the interest of other states in securing the most efficient resolution of controversies. |
4,291,858 | 9,435,945 | 2012-11-27 | United States District Court for the Southern District of Ohio | Opportunity Fund, LLC v. Epitome Systems, Inc. | Opportunity Fund, LLC v. Epitome Systems, Inc., 912 F. Supp. 2d 531 (2012) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_5 | Ohio has a legitimate interest in protecting the business interests of its citizens, |
Moreover, “ |
4,291,858 | 9,435,945 | 2012-11-27 | United States District Court for the Southern District of Ohio | Opportunity Fund, LLC v. Epitome Systems, Inc. | Opportunity Fund, LLC v. Epitome Systems, Inc., 912 F. Supp. 2d 531 (2012) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_26 | does not override the other- factors suggesting that personal jurisdiction in Ohio is reasonable. | That another state— here, Pennsylvania or Delaware — would also have an interest in adjudicating these claims “ |
4,291,858 | 9,435,945 | 2012-11-27 | United States District Court for the Southern District of Ohio | Opportunity Fund, LLC v. Epitome Systems, Inc. | Opportunity Fund, LLC v. Epitome Systems, Inc., 912 F. Supp. 2d 531 (2012) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_24 | construe the facts in the light most favorable to the non-moving party, |
Given the presumption of reasonableness that arises from the Court’s finding of purposeful availment and harm arising out of Epitome’s contacts with Ohio, as well as the Court’s obligation “ |
4,291,858 | 9,435,945 | 2012-11-27 | United States District Court for the Southern District of Ohio | Opportunity Fund, LLC v. Epitome Systems, Inc. | Opportunity Fund, LLC v. Epitome Systems, Inc., 912 F. Supp. 2d 531 (2012) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_23 | Furthermore, such a motion should not be granted ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ | “Furthermore, such a motion should not be granted ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. |
3,857,876 | 9,435,945 | 2012-06-21 | United States District Court for the Western District of Tennessee | Noval International Resources, LLC v. Andec, Inc. | Noval International Resources, LLC v. Andec, Inc., 875 F. Supp. 2d 804 (2012) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_24 | consider facts proffered by the defendant that conflict with those offered by the plaintiff. | ” The pleadings and affidavits submitted must be viewed in a light most favorable to the plaintiff, and the district court should not “ |
3,857,876 | 9,435,945 | 2012-06-21 | United States District Court for the Western District of Tennessee | Noval International Resources, LLC v. Andec, Inc. | Noval International Resources, LLC v. Andec, Inc., 875 F. Supp. 2d 804 (2012) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_4 | contacts with the forum state are of such a continuous and systematic nature that the state may exercise personal jurisdiction over the defendant even if the action is unrelated to the defendant’s contacts with the state. | Just as Plaintiffs have failed to show that Andec purposefully availed itself of the privilege of doing business in Tennessee, the Court holds that Plaintiffs have not shown that Hensley acted with the same purpose or intention. As such, Plaintiffs have not proven the first element of the Southern Machines test.
First, Plaintiffs have not shown that Hensley’s participation in the parties’ negotiations created the quality of contacts with Tennessee required to support personal jurisdiction. Plaintiffs have come forward with proof that Hensley traveled to Memphis on one occasion to meet with Coleman and negotiate the agreement. It also appears that Hensley engaged in telephone conversations with Coleman about the proposed transaction. For the reasons previously discussed, these acts were random, fortuitous, and otherwise insufficient to establish specific personal jurisdiction over Defendants in this forum. Second, Plaintiffs have also failed to show that the terms of the contract or the future consequences of the contract in any way required Hensley to perform duties or carry out activities in Tennessee. Finally, Plaintiffs have not carried their burden to show that Hensley had minimum contacts with Tennessee in the course of performing the contract. Again, Plaintiffs have at best proven that Hensley was willing to travel to Memphis and assist Plaintiffs in the marketing of the goods. There is no evidence that Hensley actually made such a trip or attempted to “exploit any market” in the state of Tennessee. Under the circumstances, the Court concludes that its exercise of specific personal jurisdiction over Hensley would be inconsistent with traditional notions of fair play and substantial justice. Therefore, Defendants’ Motion is GRANTED on this issue.
II. A court may have general jurisdiction over an out-of-state defendant when a defendant’s “ |
3,994,035 | 9,435,945 | 2012-03-21 | United States District Court for the Eastern District of Tennessee | Encore Medical, L.P. v. Kennedy | Encore Medical, L.P. v. Kennedy, 861 F. Supp. 2d 886 (2012) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_24 | the plaintiff need only make a prima facie showing of jurisdiction. In this situation, [the Court] will not consider facts proffered by the defendant that conflict with those offered by the plaintiff, and [it] will construe the facts in a light most favorable to the nonmoving party. | Alternatively, they assert that, even if they are subject to the Court’s jurisdiction, the convenience of the parties and the interests of justice demand that this case be transferred to the Western District of Pennsylvania. (See Docs. 21, 25, 52, 54). Dr. Kennedy joins the moving Defendants’ request to transfer this case. (Doc. 27).
Plaintiff opposes the Motions. (Docs. 31, 34, 63). Plaintiff asserts that it has made out a prima facie case of personal jurisdiction. (Doc. 31; Doc. 63 at 4-5). It maintains that transfer is not appropriate because it would merely shift inconvenience from Defendant to Plaintiff. (Doc. 34; Doc. 63 at 5-8). Plaintiff requests that, if the Court determines it lacks jurisdiction over one or more of the Defendants, this action be transferred to the Western District of Pennsylvania pursuant to 28 U.S.C. § 1406. (Docs. 31, 34).
II. ANALYSIS
1. Jurisdiction
Miscoe, Mir-Com, Bryanne, and MRP have all moved to dismiss this action for lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2). (Docs. 21, 52, 54). Dr. Kennedy does not contest that he is subject to this Court’s jurisdiction. In the context of a Rule 12(b)(2) motion, a plaintiff bears the burden of establishing the existence of personal jurisdiction. Air Prods. & Controls, Inc. v. Safetech Int’l, Inc., 503 F.3d 544, 549 (6th Cir.2007) (citing Serras v. First Tenn. Bank Nat’l Ass’n, 875 F.2d 1212, 1214 (6th Cir.1989)). A district court may address such a motion on the parties’ submissions or it may permit limited discovery and hold an evidentiary hearing. When, as here, the Court does not conduct an evidentiary hearing and relies solely on written submissions and affidavits to resolve the Rule 12(b)(2) motion, “the plaintiff need only make a prima facie showing of jurisdiction. |
3,994,035 | 9,435,945 | 2012-03-21 | United States District Court for the Eastern District of Tennessee | Encore Medical, L.P. v. Kennedy | Encore Medical, L.P. v. Kennedy, 861 F. Supp. 2d 886 (2012) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_14 | offend traditional notions of fair play and substantial justice. | Such a requirement ensures that the exercise of jurisdiction does not “ |
3,515,551 | 9,435,945 | 2012-08-23 | United States Court of Appeals for the Sixth Circuit | Community Trust Bancorp, Inc. v. Community Trust Financial Corp. | Community Trust Bancorp, Inc. v. Community Trust Financial Corp., 692 F.3d 469 (2012) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_1 | federal question [jurisdiction], personal jurisdiction over a defendant exists if the defendant is amenable to service of process under the [forum] state’s long-arm statute and if the exercise of personal jurisdiction would not deny the defendant ] due process. | Nevertheless, they do have customers who reside in Kentucky; even though accounts can only be opened in branch offices, nine account owners moved to Kentucky and continue to maintain their bank accounts from there. Three or four account owners, while residing in Kentucky, requested passwords to access the Defendants’ online banking website.
The Plaintiff alleges that the Defendants’ use of the “COMMUNITY TRUST” mark is likely to confuse customers and lead customers to believe erroneously that the Plaintiff is affiliated with the Defendants’ banking and financial services. On that basis, the Plaintiff brought a claim of trademark infringement against the Defendants under the Lanham Act, 15 U.S.C. § 1114(1) and state law. The Plaintiff also raised a claim under 15 U.S.C. § 1119, asserting that the Defendants’ use of the marks constitutes false designation of origin and requesting an order canceling the Defendants’ U.S. Service Mark Registration for the mark “COMMUNITY TRUST BANK.”
The Defendants moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction and to dismiss • the Plaintiffs state law claims under Rule 12(b)(6) for failure to state a claim. The district court denied the Defendants’ motions. The Defendants moved the district court to certify for immediate appeal the district court’s finding that the Plaintiff had established a prima facie case of personal jurisdiction. Recognizing the evolving nature of personal jurisdiction in the internet context, the district court certified that issue for immediate appeal.
II.
We review a district court’s denial of a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction de novo. When a federal court has “ |
3,515,551 | 9,435,945 | 2012-08-23 | United States Court of Appeals for the Sixth Circuit | Community Trust Bancorp, Inc. v. Community Trust Financial Corp. | Community Trust Bancorp, Inc. v. Community Trust Financial Corp., 692 F.3d 469 (2012) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_40 | the cause of action ... ha[s] a substantial connection with the defendant’s in-state activities. | ” Id. (quoting Burger King Corp., 471 U.S. at 475, 105 S.Ct. 2174) (internal quotation marks omitted). The Defendants contend that they did not purposefully avail themselves of the benefits of doing business in Kentucky when they granted passwords and online banking access to preexisting customers residing in Kentucky. They allege that their customers’ decisions to move to Kentucky and access online banking from that state is nothing more than a “random, fortuitous, or attenuated contact,” which is precisely the kind of unilateral activity that cannot be the basis for personal jurisdiction.
While true that the mere existence of accounts with Kentucky-based owners is, by itself, insufficient for the district court to exercise jurisdiction over the Defendants, the Defendants do have additional contacts with Kentucky — ones that result from their own intentional activities, not just their customers’ decisions to move north. In response to requests from their out-of-state customers, the Defendants supplied them with passwords to access online banking. The Defendants granted these passwords only after processing the customers’ applications, which included their Kentucky addresses and new service contracts specific to online banking. After processing these applications, the Defendants chose to grant passwords and online access to these Kentucky customers, allowing them to continue to conduct business with the Defendants. Even if a defendant purposefully avails himself to the benefits of doing business in a forum, the exercise of specific jurisdiction only complies with due process if “the cause of action... ha[s] a substantial connection with the defendant’s in-state activities. |
4,213,118 | 9,435,945 | 2009-04-23 | United States District Court for the Northern District of Ohio | Beightler v. Produkte Fur Die Medizin AG | Beightler v. Produkte Fur Die Medizin AG, 610 F. Supp. 2d 847 (2009) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_38 | engage[ ] in a persistent course of conduct in Ohio | PFM has done neither. It, furthermore, has never sent employees to Ohio to conduct business or entered into a written distribution agreement with an Ohio business. Nor has PFM directed marketing efforts to Ohioans. See id. (finding that Kentucky doctor did not regularly solicit business in Ohio, despite placing a listing in an Ohio telephone directory in the form of a small advertisement).
Plaintiffs, moreover, have not alleged facts sufficient to establish that PFM engaged in a persistent course of conduct in Ohio. They could prove this by showing that PFM had continuously relied on and benefitted from an independent sales representative operating in Ohio. See id. See Stern’s Dept. Stores, Inc. v. Herbert Mines Assoc., Inc., 1999 WL 33471990, *8-9 (S.D.Ohio) (finding that defendant did not “ |
4,213,118 | 9,435,945 | 2009-04-23 | United States District Court for the Northern District of Ohio | Beightler v. Produkte Fur Die Medizin AG | Beightler v. Produkte Fur Die Medizin AG, 610 F. Supp. 2d 847 (2009) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_3 | Mere purchases, even if occurring at regular intervals, are not enough to warrant a State’s assertion of in personam jurisdiction over a nonresident corporation in a cause of action not related to those purchase transactions. |
For the reasons below, I find that PFM has not engaged in substantial, continuous and systemic conduct in Ohio, and thus, exercising general personal jurisdiction over PFM does not comport with due process.
PFM does not solicit business in Ohio, nor does it have local offices, agents, or employees in the state. PFM employees do not travel into Ohio on a regular basis; in fact, there is no evidence that PFM employees have ever traveled to Ohio.
PFM does not advertise directly to Ohioans, have a bank account, or otherwise hold itself out as doing business in the state. Moreover, the volume of business PFM conducted in Ohio, as previously explained, is de minimus, and has been on the decline since 2002.
Based on these factors, I conclude that PFM’s relationship with Clinical Technology — and Ohio — is sporadic at best. See Bird v. Parsons, 289 F.3d 865, 873-74 (6th Cir.2002) (finding that defendant has not established a “continuous and systemic” presence in Ohio simply because nearly 5,000 Ohio residents have registered domain names when defendant does not have an office in Ohio, a license to conduct business, a bank account and does not direct its business operations from Ohio); see also Nationwide, supra, 91 F.3d at 794 (finding no basis for general jurisdiction where defendant sent a letter to plaintiff assuming an interest in a business venture, entered into subsequent agreements, solicited additional business from plaintiff and profited from its contacts with Ohio).
Plaintiffs contend that PFM had a direct business relationship with Clinical Technology, as it filled orders, shipped product, received revenue from and communicated with Clinical Technology via facsimile and other communications. See Helicopteros [Nacionales de Colombia, S.A. v. Hall] supra, 466 U.S. [408], at 418 [104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) ] (“ |
3,832,024 | 9,435,945 | 2013-07-25 | United States District Court for the Eastern District of Tennessee | Ratledge v. Norfolk Southern Railway Co. | Ratledge v. Norfolk Southern Railway Co., 958 F. Supp. 2d 827 (2013) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_4 | is unrelated to the defendant’s contacts with the state, | ” Conn v. Zakharov, 667 F.3d 705, 712-13 (6th Cir.2012). Neither the United States Supreme Court nor the Sixth Circuit Court of Appeals has defined a precise test for courts to follow when determining whether the exercise of general jurisdiction is proper. The touchstone for general jurisdiction is whether an out-of-state defendant’s contacts with the forum state are “continuous and systematic,” Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-16, 414 n. 9, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984), and if so, general jurisdiction is proper even if the underlying action “ |
3,832,024 | 9,435,945 | 2013-07-25 | United States District Court for the Eastern District of Tennessee | Ratledge v. Norfolk Southern Railway Co. | Ratledge v. Norfolk Southern Railway Co., 958 F. Supp. 2d 827 (2013) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_57 | (1) the burden on the defendant; (2) the interest of the forum state; (3) the plaintiffs interest in obtaining relief; and (4) other states’ interest in securing the most efficient resolution of the controversy. | ” Air Prods., 503 F.3d at 553 (internal citations omitted). Finally, if the court finds these first two prongs satisfied, it must decide whether the exercise of jurisdiction over the defendant is reasonable. In considering whether exercise of personal jurisdiction is reasonable under this third prong, courts look to four factors: “ |
3,832,024 | 9,435,945 | 2013-07-25 | United States District Court for the Eastern District of Tennessee | Ratledge v. Norfolk Southern Railway Co. | Ratledge v. Norfolk Southern Railway Co., 958 F. Supp. 2d 827 (2013) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_32 | the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state. | ” Intera Corp., 428 F.3d at 618.
Whether relying on either the general or the specific theory of personal jurisdiction, the plaintiff bears the burden of establishing “specific facts” demonstrating the exercise of personal jurisdiction is proper, and the plaintiff must establish such facts by a preponderance of the evidence. Conn, 667 F.3d at 711. Where, as here, the court considers a motion to dismiss under Fed.R.Civ.P. 12(b)(2) without the aid of an evidentiary hearing, the plaintiff need only make a prima facie case the court has personal jurisdiction. Id. Finally, given the procedural posture of the case, the Court must view the pleadings in the light most favorable to Plaintiff, but can also consider Defendants’ undisputed factual assertions. Id.
Plaintiff argues the Court has both general and specific personal jurisdiction over Bull Moose. Plaintiff has established the first prong of the three-part test to establish specific personal jurisdiction: that “ |
3,832,024 | 9,435,945 | 2013-07-25 | United States District Court for the Eastern District of Tennessee | Ratledge v. Norfolk Southern Railway Co. | Ratledge v. Norfolk Southern Railway Co., 958 F. Supp. 2d 827 (2013) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_57 | (1) the burden on the defendant; (2) the interest of the forum state; (3) the plaintiffs interest in obtaining relief; and (4) other states’ interest in securing the most efficient resolution of the controversy. | That subsection expanded the jurisdiction of Tennessee courts to the full extent permitted by due process. Masada Inv. Corp. v. Allen, 697 S.W.2d 332, 334 (Tenn.1985).
The addition of subsection (6) resulted in an irreconcilable conflict with the phrase “but not otherwise” which limited the jurisdiction conferred by T.C.A. § 20-2-201. In these circumstances, T.C.A. § 20-2-214, the later-enacted section, has repealed by implication T.C.A. § 20-2-201. See Jenkins v. Loudon County, 736 S.W.2d 603 (Tenn. 1987); State Department of Revenue v. Moore, 722 S.W.2d 367 (Tenn.1986); Oliver v. King, 612 S.W.2d 152 (Tenn.1981).
Davenport, 756 S.W.2d at 684-85. Not only does Davenport stand for the opposite proposition from that asserted by Bull Moose, it explicitly overruled the proposition in Williams on which Bull Moose relies.
Because the Court concludes the first two prongs of the specific jurisdiction inquiry are satisfied, it must consider the following factors to determine the reasonableness of exercising jurisdiction: “ |
4,028,050 | 9,435,945 | 2012-03-28 | United States District Court for the Eastern District of Michigan | Children’s Legal Services, PLLC v. Shor Levin & Derita, PC | Children’s Legal Services, PLLC v. Shor Levin & Derita, PC, 850 F. Supp. 2d 673 (2012) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_4 | of a continuous and systematic nature. | Theunissen, 935 F.2d at 1462; see also Green v. Wilson, 455 Mich. 342, 350-51, 565 N.W.2d 813, 816-17 (1997) (stating that “[t]he long-arm statute is coextensive with due process insofar as the statute is limited by due process, and, therefore, the statute and due process share the same outer boundary” (citing Sifers v. Horen, 385 Mich. 195, 188 N.W.2d 623 (1971))). In Michigan, jurisdiction may be asserted over a corporation on the basis of general personal jurisdiction, see Mich. Comp. Laws § 600.711, or limited personal jurisdiction, see Mich. Comp. Laws § 600.715.
1. General personal jurisdiction
General personal jurisdiction exists over any corporation that is incorporated in Michigan, consents to jurisdiction, or engages in continuous and systematic business in Michigan. General jurisdiction is consistent with due process when the corporation’s relationship with the state is “ |
4,028,050 | 9,435,945 | 2012-03-28 | United States District Court for the Eastern District of Michigan | Children’s Legal Services, PLLC v. Shor Levin & Derita, PC | Children’s Legal Services, PLLC v. Shor Levin & Derita, PC, 850 F. Supp. 2d 673 (2012) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_27 | when the operative facts of the controversy arise from the defendant’s contacts with the state. |
The “arising from” prong is satisfied “ |
4,028,050 | 9,435,945 | 2012-03-28 | United States District Court for the Eastern District of Michigan | Children’s Legal Services, PLLC v. Shor Levin & Derita, PC | Children’s Legal Services, PLLC v. Shor Levin & Derita, PC, 850 F. Supp. 2d 673 (2012) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_57 | (1) the burden on the defendant; (2) the interest of the forum state; (3) the plaintiffs interest in obtaining relief; and (4) other states’ interest in securing the most efficient resolution of the controversy. | In the Sixth Circuit, courts also determine the reasonableness of exercising personal jurisdiction over a defendant by weighing several factors, including “ |
4,028,050 | 9,435,945 | 2012-03-28 | United States District Court for the Eastern District of Michigan | Children’s Legal Services, PLLC v. Shor Levin & Derita, PC | Children’s Legal Services, PLLC v. Shor Levin & Derita, PC, 850 F. Supp. 2d 673 (2012) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_16 | in any judicial district in which such defendant is subject to the court’s personal jurisdiction. | Under 28 U.S.C. § 1391(c)(2), a corporation is deemed to reside “ |
5,886,383 | 9,435,945 | 2008-12-24 | United States District Court for the Northern District of Ohio | MMK Group, LLC v. SheShells Co. | MMK Group, LLC v. SheShells Co., 591 F. Supp. 2d 944 (2008) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_1 | if the defendant is amenable to service of process under the [forum] state’s long-arm statute and if the exercise of personal jurisdiction would not deny the defendant ] due process. | That is, personal jurisdiction exists over a nonresident “ |
5,886,383 | 9,435,945 | 2008-12-24 | United States District Court for the Northern District of Ohio | MMK Group, LLC v. SheShells Co. | MMK Group, LLC v. SheShells Co., 591 F. Supp. 2d 944 (2008) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_4 | General jurisdiction is proper only where ‘a defendant’s contacts with the forum state are of such a continuous and systematic nature that the state may exercise personal jurisdiction over the defendant even if the action is unrelated to the defendant’s contacts with the state.’ | Goldstein v. Christiansen, 70 Ohio St.3d 232, 236, 638 N.E.2d 541, 544 (1994).
Thermodyn Defendants allege, among other things, that Bruce was president and controlling member of a M & MK, a two member Ohio limited liability company that sold products in Ohio. Thermodyn Defendants also allege that Bruce solicited business in Ohio, contracted in Ohio, and signed a non-disclosure agreement which included an Ohio forum selection clause. Assuming without deciding that, due to the broad scope of “transacting business,” these allegations are enough to meet the requirements of Ohio’s long-arm statute under R.C. 2307.382(A)(1), this Court turns to the question of whether the Court’s exercise of personal jurisdiction would comport with the Due Process Clause.
3. Due Process Analysis
The Court must consider whether the exercise of personal jurisdiction over Bruce would comport with the Due Process Clause. Personal jurisdiction may be based on either general or specific jurisdiction. “General jurisdiction is proper only where ‘a defendant’s contacts with the forum state are of such a continuous and systematic nature that the state may exercise personal jurisdiction over the defendant even if the action is unrelated to the defendant’s contacts with the state. |
5,886,383 | 9,435,945 | 2008-12-24 | United States District Court for the Northern District of Ohio | MMK Group, LLC v. SheShells Co. | MMK Group, LLC v. SheShells Co., 591 F. Supp. 2d 944 (2008) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_25 | where a State exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant’s contacts with the forum. | In contrast, specific jurisdiction is proper under circumstances “ |
5,886,383 | 9,435,945 | 2008-12-24 | United States District Court for the Northern District of Ohio | MMK Group, LLC v. SheShells Co. | MMK Group, LLC v. SheShells Co., 591 F. Supp. 2d 944 (2008) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_4 | of such a continuous and systematic nature that the state may exercise personal jurisdiction over the defendant even if the action is unrelated to the defendant’s contacts with the state. | Thermodyn argues that Bruce conducted systematic and continuous operations in Ohio by: soliciting business and contracting in Ohio, entering into a joint venture in Ohio, manufacturing in Ohio, and sending letters and emails into Ohio. Even assuming these allegations are true, such contacts fail to justify the exercise of general jurisdiction over Bruce.
In Perkins v. Benguet Consolidated Mining Company, the United State Supreme Court concluded that there were sufficient contacts to support the exercise of general jurisdiction, 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485 (1952). The facts of the case at bar are not analogous to the facts in Perkins. In Perkins, the president of a nonresident defendant corporation maintained an office in Ohio where he kept company files and held meetings. Id. Additionally, the president carried on correspondence relating to the business, distributed salary checks drawn on two active Ohio bank accounts, engaged an Ohio bank to act as transfer agent, and supervised policies dealing with the rehabilitation of the corporation’s properties in the Philippines. Id. at 415.
Here, in contrast to the facts in Perkins, Bruce’s contacts with Ohio were minimal. The two correspondences Thermodyn Defendants allege Bruce sent to solicit business and contract in Ohio were a letter drafted by Pawloski to Thermodyn and an email in which Bruce expressed her lack of knowledge of the deterioration of MMK and Thermodyn’s relationship. Bruce may-have visited the Thermodyn facility and may have been aware of some information regarding the manufacturing of Lilypadz, but Bruce did not maintain any kind of regular contact with Thermodyn. Bruce did not live in Ohio, and did not own property or have a personal bank account in Ohio. Her contacts with Ohio were not “ |
5,886,383 | 9,435,945 | 2008-12-24 | United States District Court for the Northern District of Ohio | MMK Group, LLC v. SheShells Co. | MMK Group, LLC v. SheShells Co., 591 F. Supp. 2d 944 (2008) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_38 | engage in any other persistent course of conduct, | See Third Natl. Bank in Nashville, 882 F.2d at 1089 (internal quotation marks omitted); Bird v. Parsons, 289 F.3d 865 (6th Cir.2002); see also Reynolds v. International Amateur Athletic Federation, 23 F.3d 1110, 1118-1119 (6th Cir.1994) (holding that where defendant did not regularly transact or solicit business in Ohio or “ |
5,886,383 | 9,435,945 | 2008-12-24 | United States District Court for the Northern District of Ohio | MMK Group, LLC v. SheShells Co. | MMK Group, LLC v. SheShells Co., 591 F. Supp. 2d 944 (2008) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_32 | First, the defendant must purposefully avail himself [or herself] 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. | See Third Natl. Bank in Nashville, 882 F.2d at 1089 (internal quotation marks omitted); Bird v. Parsons, 289 F.3d 865 (6th Cir.2002); see also Reynolds v. International Amateur Athletic Federation, 23 F.3d 1110, 1118-1119 (6th Cir.1994) (holding that where defendant did not regularly transact or solicit business in Ohio or “engage in any other persistent course of conduct,” jurisdiction would not be found) (quoting O.R.C. § 2307.382(A)(4)); see also Nationwide Mutual Insurance Co. v. Tryg International Insurance Co., 91 F.3d 790, 794 (6th Cir.1996) (finding no basis for general jurisdiction where defendant sent a letter to plaintiff assuming an interest in a business venture, entered into subsequent agreements, solicited additional business from plaintiff, and profited from its contacts with Ohio).
b. “First, the defendant must purposefully avail himself [or herself] of the privilege of acting in the forum state or causing a consequence in the forum state. |
5,886,383 | 9,435,945 | 2008-12-24 | United States District Court for the Northern District of Ohio | MMK Group, LLC v. SheShells Co. | MMK Group, LLC v. SheShells Co., 591 F. Supp. 2d 944 (2008) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_27 | a defendant’s contacts with the forum state are related to the operative facts of the controversy, then an action will be deemed to have arisen from those contacts. |
In Balance, the Sixth Circuit stressed that “ ‘jurisdiction over the individual officers of a corporation cannot be predicated merely upon jurisdiction over the corporation,’ ” and that courts may exercise personal jurisdiction over corporate officers where the officers were personal, active participants in allegedly tortious or viola-tive conduct. 204 F.3d at 698 (citing Weller, 504 F.2d at 929). Related to the operative facts
Under the second prong, where “ |
5,886,383 | 9,435,945 | 2008-12-24 | United States District Court for the Northern District of Ohio | MMK Group, LLC v. SheShells Co. | MMK Group, LLC v. SheShells Co., 591 F. Supp. 2d 944 (2008) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_22 | the consequences of the act or breach caused by the defendant have a substantial enough connection with the forum state. | CompuServe, 89 F.3d at 1267. Thermodyn Defendants allege that Bruce was a party to a non-disclosure agreement in Ohio, and signed another non-disclosure agreement which included an Ohio forum selection clause. The non-disclosure agreement to which Bruce was a party was dated June 25, 2002 and makes no mention of Thermo-dyn. The non-disclosure agreement that included an Ohio forum selection clause was dated November 29, 2001 and was between M & MK and Speciality Silicone Products, Inc. Neither non-disclosure agreement submitted by Thermodyn relate to the operative facts of this controversy. Calphalon Corp. v. Rowlette, 228 F.3d 718, 722 (6th Cir.2000) (mere existence of a contract between Rowlette and an Ohio citizen for seventeen months is insufficient to confer personal jurisdiction); Bradford Co. v. Afco Manufacturing, 560 F.Supp.2d 612, 621 (S.D.Ohio 2008) (consent to forum’s jurisdiction in forum selection clause of contract did not constitute waiver of jurisdiction in cause of action not arising out of that agreement). Substantial connection with forum state
The third prong requires the Court to consider whether “ |
5,886,383 | 9,435,945 | 2008-12-24 | United States District Court for the Northern District of Ohio | MMK Group, LLC v. SheShells Co. | MMK Group, LLC v. SheShells Co., 591 F. Supp. 2d 944 (2008) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_57 | the burden on the defendant, the interest of the forum state, the plaintiffs interest in obtaining relief, and the interest of other states in securing the most efficient resolution of controversies. | Factors which a trial court may consider include “ |
5,886,383 | 9,435,945 | 2008-12-24 | United States District Court for the Northern District of Ohio | MMK Group, LLC v. SheShells Co. | MMK Group, LLC v. SheShells Co., 591 F. Supp. 2d 944 (2008) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_23 | it [must] appear[ ] beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. | To warrant dismissal, “ |
5,886,383 | 9,435,945 | 2008-12-24 | United States District Court for the Northern District of Ohio | MMK Group, LLC v. SheShells Co. | MMK Group, LLC v. SheShells Co., 591 F. Supp. 2d 944 (2008) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_21 | on or in connection with any goods or services, ... uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact’, in a manner that is ‘likely to cause confusion.’ | Williamson v. Rexam Beverage Can Co., 497 F.Supp.2d 900, 909 (S.D.Ohio 2007) (citing Lambert, 250 F.Supp.2d at 917-18) (denying the defendant’s motion to dismiss when the plaintiff alleged a reasonable probability of business relationships, that the defendant was aware of these relationships, and that in causing a patent application to be published the defendant intentionally interfered with these relationships). As a result, Thermodyn Defendants have alleged enough to survive dismissal at this junction despite their failure to state the full nature of their business relationship with the European customer. Thus, MMK’s motion to dismiss the tor-tious interference with business relations claim is denied.
2. Count II : Unfair Competition
A claim of unfair competition arises where a person “on or in connection with any goods or services,... uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact’, in a manner that is ‘likely to cause confusion. |
12,270,389 | 9,435,945 | 2016-12-21 | United States District Court for the Eastern District of Michigan | Huizenga v. Gwynn | Huizenga v. Gwynn, 225 F. Supp. 3d 647 (2016) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_14 | offend traditional notions of fair play and substantial justice, | OPINION AND ORDER GRANTING DEFENDANT N.Y.P. HOLDINGS’ MOTION TO DISMISS (ECF #14)
MATTHEW F. LEITMAN, UNITED STATES DISTRICT JUDGE
In 2016, the New York Post (the “Post”), a New York-based daily newspaper, published three articles about The Biggest Loser, a reality-television program on which contestants compete to lose weight. The articles included statements about Plaintiff Robert Huizenga, M.D. (“Dr. Huizenga”), a medical consultant to the show. In this action, Dr. Huizenga brings libel and business interference claims against the Post based upon the statements it published about him. (See Compl., ECF #1.)
The Post has filed a motion to dismiss for lack of personal jurisdiction (the “Motion to Dismiss”). Because the assertion of personal jurisdiction over the Post would be unreasonable—and would “ |
12,270,389 | 9,435,945 | 2016-12-21 | United States District Court for the Eastern District of Michigan | Huizenga v. Gwynn | Huizenga v. Gwynn, 225 F. Supp. 3d 647 (2016) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_44 | such that maintenance of the suit does not offend traditional notions of fair play and substantial justice. | Id.
Constitutional due process requirements are satisfied when an out-of-state defendant has “minimum contacts” with the forum state “ |
12,270,389 | 9,435,945 | 2016-12-21 | United States District Court for the Eastern District of Michigan | Huizenga v. Gwynn | Huizenga v. Gwynn, 225 F. Supp. 3d 647 (2016) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_55 | the cause of action arise from the defendant’s activities |
2
While the purposeful availraent question here is a difficult one, the analysis of under second prong of the Southern Machine test—whether “ |
12,270,389 | 9,435,945 | 2016-12-21 | United States District Court for the Eastern District of Michigan | Huizenga v. Gwynn | Huizenga v. Gwynn, 225 F. Supp. 3d 647 (2016) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_40 | a substantial connection with the defendant’s in-state activities. | A cause of action arises from the defendant’s contacts with the forum when it has “ |
12,270,389 | 9,435,945 | 2016-12-21 | United States District Court for the Eastern District of Michigan | Huizenga v. Gwynn | Huizenga v. Gwynn, 225 F. Supp. 3d 647 (2016) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_22 | substantial enough connection with [Michigan] to make the exercise of jurisdiction ... reasonable. | Dean v. Motel 6 Operating, L.P., 134 F.3d 1269, 1275 (6th Cir. 1998) (quotation marks omitted). Dr. Huiz-enga alleges just such a connection, He alleges that on three separate occasions, the Post sent libelous articles about him to its Michigan print subscribers. Quite simply, he alleges that the Post libeled him in Michigan, and his claims seek recovery for, among other things, injuries that he suffered here.
3
Dr. Huizenga has failed to satisfy the third prong of the Southern Machine test because he has not shown that the Post has a “substantial enough connection with [Michigan] to make the exercise of jurisdiction... reasonable. |
12,270,389 | 9,435,945 | 2016-12-21 | United States District Court for the Eastern District of Michigan | Huizenga v. Gwynn | Huizenga v. Gwynn, 225 F. Supp. 3d 647 (2016) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_2 | website that is accessible to anyone over the Internet is [jsufficient to justify general jurisdiction. | But the Sixth Circuit has expressly rejected the proposition that the maintenance of a " |
3,823,727 | 9,435,945 | 2006-09-21 | United States District Court for the Eastern District of Michigan | Belanger, Inc. v. Car Wash Consultants, Inc. | Belanger, Inc. v. Car Wash Consultants, Inc., 452 F. Supp. 2d 761 (2006) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_47 | need only make a prima facie showing of jurisdiction. | ” Def.’s Br., Ex. C. After receiving the Vector Wash System, Defendant installed it at the Iowa Wash location. However, following the installation Plaintiff claims it received complaints that the equipment did not function properly. Plaintiff now maintains that it was not the equipment as sold that was faulty, but instead, that the system was improperly installed by CWCI. Deciding to act independently from Defendant, Plaintiff voluntarily and directly compensated Iowa Wash for damages Iowa Wash claimed it suffered due to the allegedly malfunctioning equipment. Plaintiff claims it voluntarily compensated Iowa Wash because it was necessary to preserve its business reputation. Following the voluntary compensation, Iowa Wash returned the alleged improperly functioning equipment to a location in Michigan.
Plaintiff Belanger subsequently filed suit in Michigan against Defendant CWCI seeking aggregate damages exceeding $75,000. Plaintiff seeks relief by way of common law indemnification by operation of law, common law indemnification by implied contract, and negligence.
II. Legal Standard
Plaintiff, as the party now seeking to bring this cause of action, bears the burden of demonstrating that personal jurisdiction exists. MCNIC Oil & Gas Co. v. IBEX Resources Co., 23 F.Supp.2d 729, 732 (E.D.Mich.1998) (Gadola, J.). The standard for determining whether jurisdiction exists depends upon whether the court holds an evidentiary hearing on the jurisdictional issue. Theunissen v. Matthews, 935 F.2d 1454, 1458-59 (6th Cir.1991). Consequently, Plaintiff “ |
3,823,727 | 9,435,945 | 2006-09-21 | United States District Court for the Eastern District of Michigan | Belanger, Inc. v. Car Wash Consultants, Inc. | Belanger, Inc. v. Car Wash Consultants, Inc., 452 F. Supp. 2d 761 (2006) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_24 | not [to] consider facts proffered by the defendant that conflict with those offered by the plaintiff, and [to] construe the facts in a light most favorable to the non-moving party. | ” When an evidentiary hearing is not conducted, the United States Court of Appeals for the Sixth Circuit has directed the courts “ |
5,867,550 | 9,435,945 | 2008-02-07 | United States District Court for the Eastern District of Michigan | Trinc, Inc. v. Radial Wheel, LLC | Trinc, Inc. v. Radial Wheel, LLC, 533 F. Supp. 2d 730 (2008) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_55 | First, the defendant must purposely 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. | Id. (quoting Theunissen, 935 F.2d at 1459).
A. SPECIFIC JURISDICTION
Plaintiffs assert that this Court has specific jurisdiction over Dennis and Gross because the claims at issue arise out of their contacts with Michigan. There is a two part test for determining whether a court can properly exercise jurisdiction over an out-of-state defendant in a diversity action. Id. at 550. First, the court must determine whether it is authorized to exercise jurisdiction over the defendant by the appropriate state long-arm statute. Id. If the answer is yes, the court must decide whether exercising that jurisdiction comports with constitutional due process. Id. Under Michigan’s long arm statute, the court’s jurisdiction extends to the federal constitutional limits, so the two inquiries merge into one. Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 954 F.2d 1174, 1176 (6th Cir.1992).
“First, the defendant must purposely avail himself of the privilege of acting in the forum state or causing a consequence in the forum state. |
3,087,187 | 9,435,945 | 2006-06-08 | United States Court of Appeals for the Sixth Circuit | Fortis Corporate Insurance v. Viken Ship Management | Fortis Corporate Insurance v. Viken Ship Management, 450 F.3d 214 (2006) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_44 | ‘the exercise of jurisdiction comport[s] with traditional notions of fair play and substantial[ Justice.’ |
To establish personal jurisdiction, a plaintiff must show that (1) the defendant had “ ‘minimum contacts’ with the forum state such that defendant should ‘reasonably anticipate being haled into court there,’ ” and (2) “ ‘the exercise of jurisdiction comport[s] with traditional notions of fair play and substantial[ Justice. |
3,087,187 | 9,435,945 | 2006-06-08 | United States Court of Appeals for the Sixth Circuit | Fortis Corporate Insurance v. Viken Ship Management | Fortis Corporate Insurance v. Viken Ship Management, 450 F.3d 214 (2006) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_7 | only factual allegations that connect [the Dotster defendants] in any way to Ohio | 2005 WL 646092, at *2.
The Sixth Circuit establishes a “lenient” threshold for meeting this requirement. See Bird v. Parsons, 289 F.3d 865, 875 (6th Cir.2002). In Bird, the court considered whether a plaintiffs cause of action arose in Ohio when the pro se plaintiff alleged the defendants — all of whom were non-Ohio residents — misappropriated his domain name in violation of copyright and trademark laws. Defendant Dotster was a registrar of internet domain names. It noted that the “ |
3,087,187 | 9,435,945 | 2006-06-08 | United States Court of Appeals for the Sixth Circuit | Fortis Corporate Insurance v. Viken Ship Management | Fortis Corporate Insurance v. Viken Ship Management, 450 F.3d 214 (2006) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_40 | arising out of’ factor “requires only ‘that the cause of action, of whatever type, have a substantial connection with the defendant’s in-state activities.’ | It noted that the “only factual allegations that connect [the Dotster defendants] in any way to Ohio” are as follows: the Dotster defendants admit they have sold approximately 233,333 internet domain names to United States customers, which, when divided by 50, means that on average they sold about 4,666 domain names to each state, including Ohio. Id. at 872. The court concluded that this satisfied the purposeful availment test. The court held that the “arising out of’ factor “requires only ‘that the cause of action, of whatever type, have a substantial connection with the defendant’s in-state activities. |
3,087,187 | 9,435,945 | 2006-06-08 | United States Court of Appeals for the Sixth Circuit | Fortis Corporate Insurance v. Viken Ship Management | Fortis Corporate Insurance v. Viken Ship Management, 450 F.3d 214 (2006) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_39 | the operative facts are at least marginally related to the alleged contacts between the Dotster defendants and Ohio. | Id. at 875 (quoting in part Third Nat’l Bank v. WEDGE Group, 882 F.2d 1087, 1091 (6th Cir.1989)). The court held that “ |
3,614,542 | 9,435,945 | 2007-11-06 | United States District Court for the Western District of Michigan | In re Trade Partners, Inc., Investors Litigation | In re Trade Partners, Inc., Investors Litigation, 532 F. Supp. 2d 904 (2007) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_25 | Specific jurisdiction exists when ‘a State exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant’s contacts with the forum.’ | In re “Agent Orange” Prod. Liab. Litig., 818 F.2d 145, 163 (2d Cir.1987) (quoting In re FMC Corp. Patent Litig., 422 F.Supp. 1163, 1165 (Jud.Pan.Mult.Lit.1976)). Therefore the Court must determine whether the trans feror courts in the Adamson, Bailey, Elkins, and Myers lawsuits have personal jurisdiction over Macatawa.
Personal jurisdiction can be either “general” or “specific.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473 n. 15, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). The Adamson, Bailey, Elkins, and Myers plaintiffs only contend that the transferor courts have specific personal jurisdiction over Macatawa. “Specific jurisdiction exists when ‘a State exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant’s contacts with the forum. |
3,614,542 | 9,435,945 | 2007-11-06 | United States District Court for the Western District of Michigan | In re Trade Partners, Inc., Investors Litigation | In re Trade Partners, Inc., Investors Litigation, 532 F. Supp. 2d 904 (2007) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_58 | ‘must consider the pleadings and affidavits in the light most favorable to the plaintiff.’ | Id. (citing Calphalon Corp., 228 F.3d at 721, and Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir. 1991)). Therefore, the Court “ ‘must consider the pleadings and affidavits in the light most favorable to the plaintiff. |
3,614,542 | 9,435,945 | 2007-11-06 | United States District Court for the Western District of Michigan | In re Trade Partners, Inc., Investors Litigation | In re Trade Partners, Inc., Investors Litigation, 532 F. Supp. 2d 904 (2007) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_32 | 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. | Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)).
1.
“First, the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state. |
3,614,542 | 9,435,945 | 2007-11-06 | United States District Court for the Western District of Michigan | In re Trade Partners, Inc., Investors Litigation | In re Trade Partners, Inc., Investors Litigation, 532 F. Supp. 2d 904 (2007) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_27 | ‘when the operative facts of the controversy arise from the defendant’s contacts with the state.’ | Id. at 552-53 (citing Scotts Co. v. Aventis S.A., 145 FedAppx. 109, 113 n. 1 (6th Cir.2005) (unpublished)).
b. Arising From
The second part of the Southern Machine test requires that the cause of action arise from the defendant’s activities in the forum. “ ‘[T]he “arising from” requirement is satisfied if the cause of action is “related to” or “connected with” the defendant’s forum contacts.’ ” The “arising from” requirement is also satisfied “ ‘when the operative facts of the controversy arise from the defendant’s contacts with the state. |
3,614,542 | 9,435,945 | 2007-11-06 | United States District Court for the Western District of Michigan | In re Trade Partners, Inc., Investors Litigation | In re Trade Partners, Inc., Investors Litigation, 532 F. Supp. 2d 904 (2007) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_22 | ‘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.’ | Intera Corp., 428 F.3d at 617 (quoting Calphalon Corp., 228 F.3d at 723). This as a “lenient standard.” Air Prods. & Controls, 503 F.3d at 552-53; Bird v. Parsons, 289 F.3d 865, 875 (6th Cir.2002). Reasonableness
The third part of the Southern Machine test requires that “ ‘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. |
5,877,092 | 9,435,945 | 2006-09-13 | United States District Court for the Western District of Tennessee | American Copper & Brass, Inc. v. Mueller Europe, Ltd. | American Copper & Brass, Inc. v. Mueller Europe, Ltd., 452 F. Supp. 2d 821 (2006) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_44 | does not offend traditional notions of fair play and substantial justice. | Mass. School of Law at Andover, Inc. v. Am. Bar Ass’n, 142 F.3d 26, 34 (1st Cir.1998).
When a federal court’s subject matter jurisdiction depends on the existence of a federal question, personal jurisdiction over the defendant generally exists if the defendant is amenable to service of process under the forum state’s long-arm statute, and if the exercise of personal jurisdiction would not deny the defendant due process. Bird, 289 F.3d at 871; Reynolds v. Int’l Amateur Athletic Fed’n, 23 F.3d 1110, 1115 (6th Cir.1994). In Tennessee, the long-arm statute extends the personal jurisdiction of Tennessee courts to the limits of the Due Process Clause. See Tenn.Code Ann. § 20-2-214(a)(6) (2004).
Consistent with the Due Process Clause, a court may exercise personal jurisdiction over a defendant so long as that defendant has “certain minimum contacts” with the forum such that the exercise of personal jurisdiction “ |
5,370,357 | 9,435,945 | 2006-03-23 | United States District Court for the Southern District of Ohio | Genesis Insurance v. Alfi | Genesis Insurance v. Alfi, 425 F. Supp. 2d 876 (2006) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_14 | consistently focused on whether there are sufficient minimum contacts between the nonresident defendant and the forum state so as not to offend ‘traditional notions of fair play and substantial justice.’ | ” Nationwide Mutual Ins. v. Tryg International Ins. Co., 91 F.3d 790, 793 (6th Cir.1996)(in-ternal citations omitted). A successful assertion of personal jurisdiction must satisfy both the state long-arm statute, Ohio Revised Code § 2307.382, and constitutional due process. Although the Ohio Supreme Court has held that the Ohio long-arm statute was not intended to grant jurisdiction over nonresidents to the full extent allowed by the Due- Process Clause, see Goldstein v. Christiansen, 70 Ohio St.3d 232, 638 N.E.2d 541 (1994)(per curium), the Court of Appeals has “consistently focused on whether there are sufficient minimum contacts between the nonresident defendant and the forum state so as not to offend ‘traditional notions of fair play and substantial justice. |
5,370,357 | 9,435,945 | 2006-03-23 | United States District Court for the Southern District of Ohio | Genesis Insurance v. Alfi | Genesis Insurance v. Alfi, 425 F. Supp. 2d 876 (2006) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_55 | the cause of action must arise from the defendant’s activities | In the instant case, however, the defendants sought directors and officers liability insurance participation from Genesis PLM for claims asserted by third parties against the officers and directors of SmarTalk. This goes beyond a “one-shot” transaction because Genesis PLM could be potentially responsible for all claims asserted against the directors and officers. This is illustrated by the numerous federal and state securities litigation suits brought against the defendants in which the defendants sought participation from Genesis PLM.
The Calphalon Court highlighted that the relationship between the parties centered on the defendant’s representing the plaintiff in states other than Ohio. The Court noted that the defendant’s physical presence in Ohio occurred solely because the plaintiff chose to be headquartered there. Unlike Calphalon, Ohio is the epicenter of the relationship shared by the defendants and Genesis PLM. The defendants chose Genesis PLM to provide them with directors and officers liability insurance knowing that Genesis PLM was located in Ohio. Abiding by the insurance contract, the defendants sought further communication and contact with Genesis PLM to obtain money for attorneys’ fees and settlement costs because all decisions regarding those payments were made in Ohio. Furthermore, physical presence is not at issue in this case, which further distinguishes Calphalon.
While all of these contacts, individually, may be insufficient to establish purposeful availment, the aggregate of defendants’ actions reveals a deliberate engagement in significant activities where the defendants manifestly have availed themselves of the privilege of conducting business in Ohio, and because of these activities, are shielded by the benefits and protections of Ohio’s laws. Because the defendants have purposefully availed themselves of the privilege of acting in Ohio, this Court will proceed to analyze the next two prongs outlined in Southern Machine. Arising from Defendant’s Activities
The second Southern Machine requirement is that “ |
5,370,357 | 9,435,945 | 2006-03-23 | United States District Court for the Southern District of Ohio | Genesis Insurance v. Alfi | Genesis Insurance v. Alfi, 425 F. Supp. 2d 876 (2006) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_40 | does not require that the cause of action formally ‘arise from’ defendant’s contacts with the forum; rather, this criterion requires only ‘that the cause of action, of whatever type, have a substantial connection with the defendant’s in-state activities.’ | The second criteria “does not require that the cause of action formally ‘arise from’ defendant’s contacts with the forum; rather, this criterion requires only ‘that the cause of action, of whatever type, have a substantial connection with the defendant’s in-state activities. |
5,370,357 | 9,435,945 | 2006-03-23 | United States District Court for the Southern District of Ohio | Genesis Insurance v. Alfi | Genesis Insurance v. Alfi, 425 F. Supp. 2d 876 (2006) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_22 | 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. | Southern Machine, 401 F.2d at 384 n. 29.
In the instant case, it is clear that Genesis’ causes of action have a substantial connection with the defendants’ Ohio activities. As stated, supra, the defendants purposefully availed themselves in Ohio to negotiate and receive Genesis provided insurance coverage, the extent of which is at issue in this litigation. The operative facts of this controversy are related to the defendants’ contacts with Ohio. Reasonableness
The final Southern Machine requirement is that “ |
12,277,152 | 9,435,945 | 2017-04-21 | United States Court of Appeals for the Sixth Circuit | MAG IAS Holdings, Inc. v. Schmückle | MAG IAS Holdings, Inc. v. Schmückle, 854 F.3d 894 (2017) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_4 | the defendant’s contacts with the forum State itself. | ” Instead, the focus is on “ |
12,277,152 | 9,435,945 | 2017-04-21 | United States Court of Appeals for the Sixth Circuit | MAG IAS Holdings, Inc. v. Schmückle | MAG IAS Holdings, Inc. v. Schmückle, 854 F.3d 894 (2017) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_27 | related to the operative facts of the controversy. | Id. at 723. Schmückle’s relationship with Michigan, however, was more substantial than that of the Calphal-on distributor’s with Ohio. Schmückle’s trips to Michigan and directives to Michigan-based executives are alleged to have been in an attempt to control, grow, and sell the business. Accordingly, we do not find Calphalon to preclude a finding of purposeful availment here.
B.
Next, we ask whether plaintiffs’ claims “arise from” Schmückle’s contacts with Michigan. This requires that Schmückle’s contacts be “ |
12,418,389 | 9,435,945 | 2017-07-26 | United States District Court for the Western District of Tennessee | Susan McKnight, Inc. v. United Industries Corp. | Susan McKnight, Inc. v. United Industries Corp., 273 F. Supp. 3d 874 (2017) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_24 | not consider the facts proffered by the defendant that conflict with those offered by the plaintiff, and will construe the facts in the light most favorable to the nonmoving party. |
When the court does not conduct an evidentiary hearing on the issue of personal jurisdiction, it must “ |
3,456,659 | 9,435,945 | 2007-07-09 | United States District Court for the Eastern District of Michigan | Kelly Services, Inc. v. Noretto | Kelly Services, Inc. v. Noretto, 495 F. Supp. 2d 645 (2007) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_47 | need only make a prima facie showing of jurisdiction. |
Kelly also requests that the Court require Noretto to return all Kelly property to Kelly, including all originals and copies of tangible property, proprietary documents, trade secrets, confidential information, discs, notes, client files, client information, employment information, business development information, request for proposal, request for bid, client correspondence, meeting minutes, notes of site visits, marketing data, prospect meeting data, proposals, faxes, financial information, pricing contracts, marketing brochures, marketing database, marketing plans, costs, customer lists, customer information, internal weaknesses, prospect lists, client lists, employee lists, alliance relationships, competitive bid information, client contact lists, sales leads, prospective employee lists, business plans, profit margin, and forecasting information, strategic planning, project costs, and any other Kelly data kept in any form or media whatsoever. Id.
Defendant has now filed two motions of his own. First, Defendant asserts that because he lives and works in Oregon, because his only actions in Michigan consisted of attending mandatory training for Kelly in Michigan, and because his actions have had no consequences in Michigan, the Court lacks personal jurisdiction over him. Second, Defendant maintains that because there is no property at issue in this matter and because the events and conduct at issue all occurred in and around Portland, Oregon, venue is proper in Oregon. Therefore, Defendant asks this Court to direct that this case be dismissed or transferred to the District of Oregon.
The Court will first address the issue of personal jurisdiction.
III. Personal Jurisdiction
Defendant Noretto moves to dismiss the case for lack of personal jurisdiction, pursuant to Federal Rules of Civil Procedure 12(b)(2). Defendant maintains that personal jurisdiction is inappropriate in Michigan. Defendant argues that he is a resident of Oregon and has only come to Michigan on several sporadic occasions when required to do so as part of his employment with Kelly. Furthermore, Noretto argues that there was no act done or consequences that occurred in the State of Michigan as part of the basis for this action.
A. Legal Standard
Plaintiff bears the burden of establishing personal jurisdiction. Bird v. Parsons, 289 F.3d 865, 871 (6th Cir.2002); MCNIC Oil & Gas Co. v. IBEX Resources Co., 23 F.Supp.2d 729, 732 (E.D.Mich.1998) (Gadola, J.). In this case, because the Court has not conducted an evidentiary hearing on this issue, Plaintiff “ |
5,543,503 | 9,435,945 | 2008-01-10 | United States District Court for the Eastern District of Michigan | Kelly Services v. Eidnes | Kelly Services v. Eidnes, 530 F. Supp. 2d 940 (2008) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_47 | need only make a prima facie showing of jurisdiction. | Massachusetts Cas. Ins. Co. v. Harmon, 88 F.3d 415, 416 (6th Cir.1996) Plaintiff is not required to show an absolute certainty that it will be entitled to a verdict in excess of $75,000. Instead, there must be a legal certainty that Plaintiff will not recover that amount for this matter to be dismissed for lack of subject matter jurisdiction. Olden v. LaFarge Corp., 203 F.R.D. 254, 259-60 (E.D.Mich.2001) (Lawson, J.)
I cannot conclude that there is a legal certainty that Plaintiff will not be able to recover more than $75,000 in damages. If Defendant were allowed to work in the Minneapolis market, based upon the affidavits submitted by both parties to this Court, it is very conceivable that it would only take several customers or contracts before Plaintiff sustained over $75,000 in lost business. It is undisputed that Eidnes is very capable and successful. Losing her services in violation of the agreement that she made with Plaintiff would almost certainly cause damages in excess of $75,000. I therefore, DENY Defendant’s motion to dismiss for lack of subject matter jurisdiction.
III. Personal Jurisdiction
Eidnes moves to dismiss this case for lack of personal jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(2). She argues that she is a resident of Minnesota and has come to Michigan once, for a training session entirely unrelated to her job with Kelly Services. Moreover, she claims that the events and facts of this case occurred in Minnesota, and not Michigan.
Plaintiff bears the burden of establishing personal jurisdiction. When the evaluation of personal jurisdiction is made without an evidentiary hearing, the Plaintiff “ |
5,543,503 | 9,435,945 | 2008-01-10 | United States District Court for the Eastern District of Michigan | Kelly Services v. Eidnes | Kelly Services v. Eidnes, 530 F. Supp. 2d 940 (2008) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_14 | traditional notions of fail' play and substantial justice. | Id. at 871. The Sixth Circuit has instructed this Court to consider the pleadings and affidavits in a light most favorable to the Plaintiff. Plaintiffs burden is “relatively slight.” Kelly Services, Inc. v. Noretto, 495 F.Supp.2d 645, 651 (E.D.Mich.2007) (Gadola, J.) ; McCuiston v. Hoffa, 313 F.Supp.2d 710, 715 (E.D.Mich.2004)(Feikens, J.).
To establish personal jurisdiction in this district, Plaintiff must show that (1) Michigan’s long-arm statute supports this court’s exercise of personal jurisdiction, and (2) that the Due Process Clause of the Fourteenth Amendment is not violated by that exercise. Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 888 (6th Cir.2002); Niemi v. NHK Spring Co. Ltd., 276 F.Supp.2d 717, 719-20 (E.D.Mich.2003)(Feikens, J.) The first requirement is uncontested, and, in any event, that standard of the Michigan Long Arm Statute is “extraordinarily easy to meet.” Noretto, 495 F.Supp.2d at 652. The slightest act of business meets this standard, and that is conceded by both parties as both cite to a training meeting Eidnes attended at Kelly Services’ Troy Headquarters.
The second step ascertains whether Defendant has the requisite minimum contacts with this state so that personal jurisdiction over the suit does not offend “ |
5,543,503 | 9,435,945 | 2008-01-10 | United States District Court for the Eastern District of Michigan | Kelly Services v. Eidnes | Kelly Services v. Eidnes, 530 F. Supp. 2d 940 (2008) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_18 | only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. | Int’l Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The Sixth Circuit has instructed this Court to apply a three-part analysis in determining this analysis. First, Plaintiff must show that Defendant purposefully availed herself of the privilege of conducting activities in Michigan (the forum state). Second, the cause of action must come out of those activities. Third, there must best be a connection between Defendant’s activities and the forum state to make the exercise of jurisdiction fundamentally fair. Cole v. Mileti 133 F.3d 433, 436 (6th Cir.1998.)
In this instance, the evidence viewed in a light most favorable to Plaintiff shows that Eidnes accessed a Michigan-based computer server and database networks as part of her job responsibilities. See ACS Consultant v. Williams, 2007 WL 674608, 2007 U.S. Dist. Lexis 15120 (March 5, 2007) (Zatkoff, J.) (use of Michigan based computer services is sufficient to establish personal jurisdiction in Michigan, even though Defendant’s physical presence is in another state). Further, as evidenced by the emails and phone logs produced by Plaintiff, it is clear that there is at least a prima facie showing that Eidnes had at least semi-regular contact with Michigan-based supervisors during the course of her employment with Kelly Services. See Kelly Services v. Noretto, 495 F.Supp.2d at 652-53. From these facts, it is clear to this Court that Eidnes purposefully availed herself of the privileges of conducting activities in Michigan. Maintaining this suit in this Court will not offend the tradition notions of fair play and substantial justice. Accordingly, Defendant’s Motion to Dismiss for lack of personal jurisdiction is DENIED.
IV. A motion to dismiss under Rule 12(b)(6) may be granted “ |
4,308,517 | 9,435,945 | 2015-02-24 | United States District Court for the Southern District of Ohio | Chapman v. Lawson | Chapman v. Lawson, 89 F. Supp. 3d 959 (2015) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_14 | offend traditional notions of fair play and substantial justice. | Federal Rule of Civil Procedure 12(b)(2)
Where a defendant has moved to dismiss a case under Rule 12(b)(2) for lack of personal jurisdiction and the district court rules on the motion without an evi-dentiary hearing, the plaintiff need only make a “prima facie” showing that the court has personal jurisdiction. Conn v. Zakharov, 667 F.3d 705, 711 (6th Cir.2012) (citing Kroger Co. v. Malease Foods Corp., 437 F.3d 506, 510 (6th Cir.2006)). The court considers the pleadings in the light most favorable to the plaintiff and does not weigh the disputed facts, although the court may consider the defendant’s undisputed factual assertions. Id. (citing Kerry Steel, Inc. v. Paragon Indus., Inc., 106 F.3d 147, 153 (6th Cir.1997); CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1261-62 (6th Cir.1996)).
Where the district court’s subject matter jurisdiction stems from the existence of a federal question, the plaintiff must satisfy the state law requirements for personal jurisdiction. Bird v. Parsons, 289 F.3d 865, 871 (6th Cir.2002). Under Ohio law, personal jurisdiction over nonresident defendants exists only if: (1) Ohio’s long-arm statute confers jurisdiction, and (2) the requirements of the federal due process clause are met. Schneider v. Hardesty, 669 F.3d 693, 699 (6th Cir. 2012); Conn, 667 F.3d at 712 (citing Kauffman Racing Equip., L.L.C. v. Roberts, 126 Ohio St.3d 81, 930 N.E.2d 784, 790 (2010); Goldstein v. Christiansen, 70 Ohio St.3d 232, 638 N.E.2d 541, 543 (1994)).
Ohio’s long-arm statute grants the court personal jurisdiction over a nonresident if his conduct falls within one of the nine bases for jurisdiction listed under the statute. The federal due process clause requires that the defendant have sufficient “minimum contact[s]” with the forum state such that a finding of personal jurisdiction does not “ |
4,308,517 | 9,435,945 | 2015-02-24 | United States District Court for the Southern District of Ohio | Chapman v. Lawson | Chapman v. Lawson, 89 F. Supp. 3d 959 (2015) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_14 | offend traditional notions of fair play and substantial justice. | ”) (internal citation omitted). See Conn, 667 F.3d at 712 (citing Third Nat’l Bank v. WEDGE Group, Inc., 882 F.2d at 1089) (quoting Int’l Shoe Co., 326 U.S. at 316, 66 S.Ct. 154) (plaintiff must put forth specific allegations demonstrating that the requirements for long-arm jurisdiction have been met under the Ohio statute or that Sprint Nextel had sufficient “minimum contacts” with Ohio such that a finding of personal jurisdiction does not “ |
4,360,473 | 9,435,945 | 2015-04-06 | United States District Court for the Middle District of Florida | Mighty Men of God, Inc. v. World Outreach Church of Murfreesboro Tennessee, Inc. | Mighty Men of God, Inc. v. World Outreach Church of Murfreesboro Tennessee, Inc., 102 F. Supp. 3d 1264 (2015) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_14 | traditional notions of fair play and substantial justice. |
“In specific personal jurisdiction cases,” the Eleventh Circuit characterizes those requirements as a “three-part due process test, which examines” the following:
(1) whether the plaintiffs claims “arise out of or relate to” at least one of the defendant’s contacts with the forum; (2) whether the nonresident defendant “purposefully availed” himself of the privilege of conducting activities within the forum state, thus invoking the benefit of the forum state’s laws; and (3) whether the exercise of personal jurisdiction comports with “ |
11,420,525 | 9,435,945 | 2002-08-07 | United States District Court for the Southern District of Ohio | Healthcare Capital, LLC v. HealthMed, Inc. | Healthcare Capital, LLC v. HealthMed, Inc., 213 F. Supp. 2d 850 (2002) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_9 | [t]he party seeking to assert personal jurisdiction bears the burden of demonstrating that such jurisdiction exists. | ” Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). A Rule 12(b)(1) motion to dismiss will be granted only if, taking as true all facts alleged by the plaintiff, the court is without subject matter jurisdiction to hear the claim.
B. When such a motion is filed, “ |
11,420,525 | 9,435,945 | 2002-08-07 | United States District Court for the Southern District of Ohio | Healthcare Capital, LLC v. HealthMed, Inc. | Healthcare Capital, LLC v. HealthMed, Inc., 213 F. Supp. 2d 850 (2002) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_47 | ‘need only make a prima facie showing of jurisdiction.’ | ” Bird v. Parsons, 289 F.3d 865, 871 (6th Cir.2002) (citing Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 887 (6th Cir.2002)). In the face of a supported motion to dismiss, the plaintiff may not rest on his pleadings, but must, by affidavit or otherwise, set forth specific evidence supporting jurisdiction. When the Court considers a motion to dismiss pursuant to Rule 12(b)(2) without an evidentiary hearing on the issue of personal jurisdiction, however, the plaintiff “ ‘need only make a prima facie showing of jurisdiction. |
11,420,525 | 9,435,945 | 2002-08-07 | United States District Court for the Southern District of Ohio | Healthcare Capital, LLC v. HealthMed, Inc. | Healthcare Capital, LLC v. HealthMed, Inc., 213 F. Supp. 2d 850 (2002) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_14 | in evaluating whether personal jurisdiction is proper under Ohio’s long-arm statute, [this Circuit has] consistently focused on whether there are sufficient minimum contacts between the nonresident defendant and the forum state so as not to offend 'traditional notions of fair play and substantial justice.’ | Furthermore, to refuse to abstain under these circumstances would be to encourage parties to engage in forum shopping by continuing to file substantially similar litigation under various guises until they receive the quickest and most desirable ruling. This Court cannot fathom such a result.
Therefore, the Court GRANTS the Defendants’ Motion to Dismiss pursuant to the Colorado River abstention doctrine.
C. Personal Jurisdiction
The Defendants argue that, even if the Court were to find that abstention is inappropriate, it should nonetheless dismiss the Plaintiffs Complaint for lack of in personam jurisdiction over the Defendants. They support their motion with affidavits of both Stein and Barling in which the Defendants deny virtually any fact that would support jurisdiction. Based on the following discussion, the Court finds that the Defendants are cor-rect that even if abstention were inappropriate, it would nonetheless grant the Defendants’ Motion to Dismiss for lack of personal jurisdiction.
To determine whether this Court may exercise personal jurisdiction over the Defendants, the Court must engage in a two-part inquiry. First, the Court must address whether Ohio’s long-arm statute, Ohio Rev.Code § 2307.382, permits the exercise of jurisdiction over the defendants. Bird v. Parsons, 289 F.3d 865, 871 (6th Cir.2002). Second, the Court must determine whether the exercise of jurisdiction over the defendants would deny the defendants due process of law. Id. (citing Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 954 F.2d 1174, 1176 (6th Cir.1992)). The Sixth Circuit has recognized that Ohio’s long-arm statute is not coterminous with the limits of due process. Nevertheless, the Sixth Circuit has found that “in evaluating whether personal jurisdiction is proper under Ohio’s long-arm statute, [this Circuit has] consistently focused on whether there are sufficient minimum contacts between the nonresident defendant and the forum state so as not to offend 'traditional notions of fair play and substantial justice. |
11,420,525 | 9,435,945 | 2002-08-07 | United States District Court for the Southern District of Ohio | Healthcare Capital, LLC v. HealthMed, Inc. | Healthcare Capital, LLC v. HealthMed, Inc., 213 F. Supp. 2d 850 (2002) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_4 | a defendant’s contacts with the forum state are of such a continuous and systematic nature that the state may exercise personal jurisdiction over the defendant even if the action is unrelated to the defendant’s contacts with the state. | Id. at 871-72 (quoting Calphalon Corp., 228 F.3d at 721) (internal citations omitted).
General jurisdiction is proper where “ |
11,424,878 | 9,435,945 | 2002-10-08 | United States District Court for the Western District of Tennessee | Newsome v. Northwest Airlines Corp. | Newsome v. Northwest Airlines Corp., 225 F. Supp. 2d 822 (2002) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_23 | if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. |
In support of Plaintiffs’ claim for breach of the duty of fair representation, Plaintiffs assert that IAM acted in bad faith and with hostile discrimination and used unfair labor practices in an attempt to prevent IAM-represented employees from becoming AMFA-represented employees. This alleged hostile discrimination and bad faith by IAM to AMFA establishes that IAM and AMFA have not adequately protected Plaintiffs. Furthermore, Plaintiffs maintain that AMFA and IAM have failed to take action to enforce the CBAs against Northwest. Specifically, Plaintiffs assert that IAM and AMFA have not filed grievances against Northwest based upon Northwest’s outsourcing, Air Link’s hiring, and Northwest’s use of overtime. Moreover, IAM and AMFA arbitrarily and perfunctorily refused to take steps to resolve Northwest’s asserted improper use of the force majeure clause. Plaintiffs allege that Northwest has unlawfully taken advantage of the hostility between IAM and AMFA to deny the Plaintiffs’ rights under the CBAs. Plaintiffs assert that Northwest, AMFA, and IAM have colluded not to press arbitration and conspired to breach the CBAs.
Plaintiffs, who were represented by IAM prior to June of 1999, assert that they continued to be covered by the IAM CBA with Northwest until May 12, 2001, the date the CBA between AMFA and Northwest became effective. Pursuant to a clause in the IAM CBA, these Plaintiffs allege that they retained their seniority rights under the IAM agreement until May 12, 2002. Plaintiffs assert that Northwest and IAM refused to recognize the seniority rights of those employees represented by IAM prior to June of 1999. As such, these Plaintiffs claim that Northwest breached its agreement with them and that IAM and AMFA breached its duty of fair representation. Plaintiffs also assert that Defendants conspired to deny these Plaintiffs their seniority rights under the IAM CBA with Northwest.
II. A motion to dismiss may only be granted “ |
11,424,878 | 9,435,945 | 2002-10-08 | United States District Court for the Western District of Tennessee | Newsome v. Northwest Airlines Corp. | Newsome v. Northwest Airlines Corp., 225 F. Supp. 2d 822 (2002) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_49 | the court must construe the complaint in a light most favorable to the plaintiff, and accept all of [the] factual allegations as true. | In considering a motion to dismiss, “ |
11,424,797 | 9,435,945 | 2002-09-30 | United States District Court for the Western District of Tennessee | First Tennessee National Corp. v. Horizon National Bank | First Tennessee National Corp. v. Horizon National Bank, 225 F. Supp. 2d 816 (2002) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_49 | the court must construe the complaint in a light most favorable to the plaintiff, and accept all of [the] factual allegations as true. | On July 8, 2002, Defendant filed a motion to dismiss the complaint based upon discretionary abstention or in the alternative, pursuant to Federal Rules of Civil Procedure 12(b)(2) and (3). For the following reasons, this Court denies the motion to dismiss.
I. Background
First Tennessee provides banking and financial services nationwide. Horizon is a national banking association with its principal place of business in Kansas City, Kansas. Horizon operates a nationwide internet mortgage loan operation. Customers may complete on-line mortgage loan applications on Horizon’s website.
First Tennessee uses the service marks “HORIZON,” “HORIZON BANK,” and “FIRST HORIZON” in connection with its various banking and financial services. In this Court, First Tennessee asserts that Horizon’s usage of the trade name and mark “HORIZON NATIONAL BANK” to identify its banking, mortgage, and home equity lending services violates the common law and 15 U.S.C. §§ 1114, 1125. The complaint states four causes of action including trademark infringement, false designation of origin and false representation, palming off, and unfair competition.
Horizon filed a motion to dismiss the complaint. Horizon urges this Court to dismiss First Tennessee’s complaint due to lack of personal jurisdiction and improper venue. In addition, Horizon argues that this Court should abstain from hearing the case in recognition of a suit filed by First Horizon Home Loan Corporation (“First Horizon”), et al., against Horizon National Bank on January 9, 2001, in a Kansas state court. First Horizon is a subsidiary and affiliate of First Tennessee. In the Kansas state action, First Horizon has alleged seventeen causes of action. These causes of action include claims for breach of contract, temporary and permanent injunctive relief, tortious interference, breach of loyalty and fidelity, breach of fiduciary duty, negligent misrepresentation, fraudulent misrepresentation, spoliation, conversion, tortious interference with non-contractual business relationship, civil conspiracy, aiding and abetting, and unfair competition due to inevitable disclosure. Motion to Dismiss
In considering a motion to dismiss, “ |
11,424,797 | 9,435,945 | 2002-09-30 | United States District Court for the Western District of Tennessee | First Tennessee National Corp. v. Horizon National Bank | First Tennessee National Corp. v. Horizon National Bank, 225 F. Supp. 2d 816 (2002) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_47 | need only make a prima facie showing of jurisdiction. | ” Absent an evidentiary hearing on the issue of personal jurisdiction, the plaintiff “ |
11,424,797 | 9,435,945 | 2002-09-30 | United States District Court for the Western District of Tennessee | First Tennessee National Corp. v. Horizon National Bank | First Tennessee National Corp. v. Horizon National Bank, 225 F. Supp. 2d 816 (2002) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_4 | a defendant’s contacts with the forum state are of such a continuous and systematic nature that the state may exercise personal jurisdiction over the defendant even if the action is unrelated to the defendant’s contacts with the state. | First Tennessee is not a party to the state court action, and the plaintiff in the state court action is not a party to this action. The defendants in the state court action include some of First Horizon’s former employees. In the action in this Court, however, Horizon is the only defendant. Complete identity of the parties is not necessarily required for actions to be parallel. See Glover v. City of Portland, 675 F.Supp. 398 (M.D.Tenn.1987). The plaintiff in the state court action, however, has no ownership interest in trademarks at issue. In the instant action, therefore, it is undisputed that the plaintiff in the state court action lacks standing to bring the trademark infringement claim. For the foregoing reasons, this Court concludes that the state and federal actions are not parallel. Accordingly, the Defendant’s request for abstention is denied.
B. Personal Jurisdiction
Horizon next asserts that this Court lacks personal jurisdiction to decide the case. In diversity actions, a federal court must apply the law of the forum state in which it sits to determine whether personal jurisdiction is appropriate. The court may maintain jurisdiction over a non-resident defendant only in accordance with the forum state’s long-arm statute and the limitations of the Due Process Clause of the Constitution. Reynolds v. Int’l Amateur Athletic Fed’n, 23 F.3d 1110, 1115 (6th Cir.1994), cert. denied, 513 U.S. 962, 115 S.Ct. 423, 130 L.Ed.2d 338 (1994); Procter & Gamble Cellulose Co. v. Viskoza-Loznica, 33 F.Supp.2d 644, 660 (W.D.Tenn.1998). In Tennessee, jurisdiction may be asserted on any basis not inconsistent with the constitution of Tennessee or the United States. See Tenn. Code Ann. § 20-2-214(a)(6).
Personal jurisdiction may be either specific or general, depending on the nature of the defendant’s contacts with the forum state. General jurisdiction exists when “ |
11,424,797 | 9,435,945 | 2002-09-30 | United States District Court for the Western District of Tennessee | First Tennessee National Corp. v. Horizon National Bank | First Tennessee National Corp. v. Horizon National Bank, 225 F. Supp. 2d 816 (2002) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_2 | the fact that [defendant] maintains a website that is accessible to anyone over the Internet is insufficient to justify general jurisdiction | If the defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper. At the opposite end are situations where a defendant has simply posted information on an Internet Web site which is accessible to users in foreign jurisdictions. A passive Web site that does little more than make information available to those who are interested in it is not grounds for the exercise [of] personal jurisdiction. The middle ground is occupied by interactive Web sites where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site.
Id.
First Tennessee alleges that Horizon’s website is highly interactive. The website allows and encourages consumers to complete an on-line mortgage loan application; to join an e-mail list to receive daily commentary on mortgage-related topics; to send in on-line testimonials; and to sign up for the “rate tracker” service whereby customers may complete an on-line form to receive notification via e-mail when a target rate becomes available. In addition, the website permits customers to calculate the amount of their mortgage payments, to determine whether they pre-qualify for a loan, and to obtain personalized service from “expert mortgage loan advisors” via e-mail. First Tennessee also asserts that Tennessee is included in a list of states to which Horizon directs its business activities. Furthermore, Horizon’s website states that Horizon is approved to lend in “ALL 50 States.” See Bird, 289 F.3d at 874 (holding that “ |
11,424,797 | 9,435,945 | 2002-09-30 | United States District Court for the Western District of Tennessee | First Tennessee National Corp. v. Horizon National Bank | First Tennessee National Corp. v. Horizon National Bank, 225 F. Supp. 2d 816 (2002) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_36 | if the website is interactive to a degree that reveals specifically intended interaction with residents of the state. | The operation of an Internet website, however, can constitute the purposeful availment of the privilege of acting in the forum state “ |
11,424,797 | 9,435,945 | 2002-09-30 | United States District Court for the Western District of Tennessee | First Tennessee National Corp. v. Horizon National Bank | First Tennessee National Corp. v. Horizon National Bank, 225 F. Supp. 2d 816 (2002) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_47 | need only make a prima facie showing of jurisdiction, | ” Neogen Corp., 282 F.3d at 890. This Court concludes that Horizon has purposefully availed itself of the privilege of acting in the forum state by maintaining a website that permits Tennessee residents to obtain mortgage loans, obtain expert loan advise, and receive daily commentary. See Bird, 289 F.3d at 875 (holding that defendant purposefully availed itself of the privilege of acting in the forum state by maintaining a website on which Ohio residents can register domain names and by accepting the business of Ohio residents); Neogen Corp., 282 F.3d at 890 (holding that defendant purposefully availed itself of acting in the forum by granting clients passwords to access the defendant’s services on the website and by welcoming the business of Michigan customers on a regular basis). This Court recognizes that First Tennessee has not alleged that Horizon has actually serviced a Tennessee resident. Horizon, however, has not alleged that it has refrained from doing business with Tennessee residents. Given that the plaintiff “ |
11,424,797 | 9,435,945 | 2002-09-30 | United States District Court for the Western District of Tennessee | First Tennessee National Corp. v. Horizon National Bank | First Tennessee National Corp. v. Horizon National Bank, 225 F. Supp. 2d 816 (2002) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_27 | If a defendant’s contacts with the forum state are related to the operative facts of the controversy, then an action will be deemed to have arisen from those contacts. | Given that the plaintiff “need only make a prima facie showing of jurisdiction,” the defendant’s alleged maintenance of a highly interactive website that solicits Tennessee customers is a sufficient basis to find that the defendant has purposefully availed itself of acting in the forum state. See Quality Solutions v. Zupanc, 993 F.Supp. 621, 623 (N.D.Ohio 1997) (holding that defendants’ marketing efforts, through both a trade journal and internet site, represent deliberate attempts to solicit business from the Ohio market); Compare Bailey v. Turbine Design, Inc., 86 F.Supp.2d 790, 794 (W.D.Tenn.2000) (holding that a general advertisement posting on the internet is insufficient to establish personal jurisdiction). “ |
11,424,797 | 9,435,945 | 2002-09-30 | United States District Court for the Western District of Tennessee | First Tennessee National Corp. v. Horizon National Bank | First Tennessee National Corp. v. Horizon National Bank, 225 F. Supp. 2d 816 (2002) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_50 | if we find, as we do, the first two elements of a prima facie case — purposeful availment and a cause of action arising from the defendant’s contacts with the forum state — then an inference arises that this third factor is present | Therefore, the operative facts are “at least marginally related to the alleged contacts between [defendant] and [Tennessee].” Bird, 289 F.3d at 875. Accordingly, First Tennessee’s claims arise from Horizon’s contacts with Tennessee.
The final factor for finding specific jurisdiction is that the exercise of jurisdiction must be reasonable in light of the connection that allegedly exists between the de fendant and the forum. CompuServe, Inc., 89 F.3d at 1268 (stating that “ |
9,333,624 | 9,435,945 | 2003-02-07 | United States Court of Appeals for the Sixth Circuit | Taubman Co. v. Webfeats | Taubman Co. v. Webfeats, 319 F.3d 770 (2003) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_52 | in connection with the sale or advertising of goods or services, | OPINION
SUHRHEINRICH, Circuit Judge.
Defendant-Appellant Henry Mishkoff, d/b/a Webfeats, appeals from two preliminary injunctions, respectively entered on October 11, 2001, and December 7, 2001, in the United States District Court for the Eastern District of Michigan, together granting Plaintiff-Appellee the Taubman Company’s (Taubman) request to prevent Mishkoff from using six internet domain names because they likely violate Taub-man’s trademarks in the terms “Taub-man,” and “The Shops at Willow Bend.”
Mishkoff claims two assignments of error. First, he contends that the United States District Court for the Eastern Dis trict of Michigan lacked personal jurisdiction over him. Second, he claims that even if jurisdiction was proper, Taubman is unlikely to succeed on the merits of its trademark claims because it has not demonstrated that customers would likely be confused between the origin of Taubman’s and Mishkoffs products.
We reverse the decision of the district court and dissolve both injunctions. Second, Taubman had failed to demonstrate a likelihood of success on the merits because Mishkoffs use was not “ |
9,333,624 | 9,435,945 | 2003-02-07 | United States Court of Appeals for the Sixth Circuit | Taubman Co. v. Webfeats | Taubman Co. v. Webfeats, 319 F.3d 770 (2003) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_52 | in connection with the sale ... or advertising of any goods or services, | Semco, Inc. v. Amcast, Inc., 52 F.3d 108, 111-12 (6th Cir.1995) (stating that reach of Lan-ham Act is limited so as to be constitutional); see also Seven-Up v. Coca-Cola Co., 86 F.3d 1379, 1383 n. 6 (5th Cir.1996). The Lanham Act is constitutional because it only regulates commercial speech, which is entitled to reduced protections under the First Amendment. Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of New York, 447 U.S. 557, 563, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980) (stating that regulation of commercial speech is subject only to intermediate scrutiny). Thus, we must first determine if Mishkoffs use is commercial and therefore within the jurisdiction of the Lanham Act, worthy of lesser First Amendment protections.
If Mishkoffs use is commercial, then, and only then, do we analyze his use for a likelihood of confusion. See 134 Cong. Rec. 31, 851 (Oct. 19, 1988) (statement of Rep. Kastenmeier) (stating that § 43 of the Lanham Act only affects misleading commercial speech); cf. Va. Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 771 & n. 24, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976) (stating that misleading commercial speech is not protected by the First Amendment); Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 157, 109 S.Ct. 971, 103 L.Ed.2d 118 (1989) (stating that a trademark owner has at best a quasi-property right in his mark, and can only prevent its use so as to maintain a confusion-free purchasing public) (quoting Crescent Tool Co. v. Kilborn & Bishop Co., 247 F. 299, 301(2d Cir.1917) (L.Hand, J.)).
Hence, as per the language of the Lan-ham Act, any expression embodying the use of a mark not “in connection with the sale... or advertising of any goods or services,” and not likely to cause confusion, is outside the jurisdiction of the Lanham Act and necessarily protected by the First Amendment. |
9,333,624 | 9,435,945 | 2003-02-07 | United States Court of Appeals for the Sixth Circuit | Taubman Co. v. Webfeats | Taubman Co. v. Webfeats, 319 F.3d 770 (2003) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_52 | in connection with the sale of goods | Taubman offers three arguments that Mishkoff is using its name commercially to sell or advertise goods or services. First, Mishkoff had a link to a site owned by Hartley’s blouse company, “shirt-biz.com.” Second, he had a link to his own site for his web design company, Webfeats. Third, Mishkoff had accepted a $1000 offer to relinquish the name to Taubman.
Although Mishkoff claims his intention in creating his website was non-commercial, the proper inquiry is not one of intent. Daddy’s Junky Music Stores, Inc. v. Big Daddy’s Family Music Center, 109 F.3d 275, 287 (6th Cir.1997). In that sense, the Lanham Act is a strict liability statute. See Hard Rock Café Licensing Corp. v. Concession Servs., Inc., 955 F.2d 1143, 1152 n. 6 (7th Cir.1992). If consumers are confused by an infringing mark, the offender’s motives are largely irrelevant. Wynn Oil Co. v. Thomas, 839 F.2d 1183, 1188 (6th Cir.1988) (citing Lois Sportswear, U.S.A, Inc. v. Levi Strauss & Co., 799 F.2d 867, 875 (2d Cir.1986)). We believe the advertisements on Mishkoffs site, though extremely minimal, constituted his use of Taubman’s mark “in connection with the advertising” of the goods sold by the advertisers. This is precisely what the Lanham Act prohibits.
However, Mishkoff had at least removed the shirtbiz.com link prior to the injunction. A preliminary injunction is proper only to prevent an on-going violation. See, e.g. Hecht Co. v. Bowles, 321 U.S. 321, 329-30, 64 S.Ct. 587, 88 L.Ed. 754 (1944) (recounting the historical role of courts of equity and stating that purpose of injunctive relief is “to deter, not to punish”).
Taubman’s assertion that its offer to buy the domain name “shopsatwillowbend.com” from Mishkoff qualifies Mishkoffs use of the mark as “ |
9,333,624 | 9,435,945 | 2003-02-07 | United States Court of Appeals for the Sixth Circuit | Taubman Co. v. Webfeats | Taubman Co. v. Webfeats, 319 F.3d 770 (2003) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_52 | in connection with the sale of goods, | Although other courts have held that a so-called cybersquatter, who registers domain names with the intent to sell the name to the trademark holder, uses the mark “ |
9,333,624 | 9,435,945 | 2003-02-07 | United States Court of Appeals for the Sixth Circuit | Taubman Co. v. Webfeats | Taubman Co. v. Webfeats, 319 F.3d 770 (2003) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_52 | in connection with the sale of goods. | Although other courts have held that a so-called cybersquatter, who registers domain names with the intent to sell the name to the trademark holder, uses the mark “in connection with the sale of goods,” they have also limited their, holdings to such instances where the defendant had made a habit and a business of such practices. See, e.g., E & J Gallo Winery v. Spider Webs Ltd., 286 F.3d 270, 270 (5th Cir.2002) (noting that defendant had made a business practice of selling domain names on eBay for no less than $10,000); Panavision Int’l, L.P. v. Toeppen, 141 F.3d 1316 (9th Cir.1998).
In Panavision, the defendant, Toeppen, purchased and offered to sell the name “panavision.com” to Panavision for $13,000. Id. at 1318. Evidence showed that Toep-pen had attempted similar deals with a myriad of other companies, ranging from Delta Airlines to Eddie Bauer. Id. at 1319. The Ninth Circuit found Toeppen’s intent to sell the domain name relevant in determining that his creation of the site was a commercial use of Panavision’s mark. Id. at 1325. In contrast, not only has Mishkoff not made a practice of registering and selling domain names, but he did not even initiate the bargaining process here. Although Taubman’s counsel intimated at oral argument that Mishkoff had in fact initiated the negotiation process, correspondence in the record supports the opposite conclusion, and shows that Taubman first offered Mishkoff $1000 to relinquish the site on August 16, 2001, and Mishkoff initially accepted it under threat of litigation. Hence, this case is distinguishable from Panavision. Therefore, we hold his use of the name “shopsatwillowbend.com” is not “ |
9,333,624 | 9,435,945 | 2003-02-07 | United States Court of Appeals for the Sixth Circuit | Taubman Co. v. Webfeats | Taubman Co. v. Webfeats, 319 F.3d 770 (2003) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_52 | in connection with the sale ... or advertising of any goods or services, |
Even if Mishkoff s use is commercial speech, i.e., “in connection with the sale... or advertising of any goods or services,” and within the jurisdiction of the Lanham Act, there is a violation only if his use also creates a likelihood of confusion among customers. |
9,333,624 | 9,435,945 | 2003-02-07 | United States Court of Appeals for the Sixth Circuit | Taubman Co. v. Webfeats | Taubman Co. v. Webfeats, 319 F.3d 770 (2003) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_52 | in connection with the sale of goods | We found no Lanham Act violation, partly because the defendant played an unmistakable disclaimer upon answering each call, explaining that it was unaffiliated with Holiday Inns, and providing customers with Holiday Inns’ correct phone number. Id. at 621. We found that the defendant was, in fact, directing business to Holiday Inns that otherwise would have been lost, and although some callers chose to do business with the defendant, others hung up and called Holiday Inns. Had it not been for defendants’ service, Holiday Inns would likely never have recovered many customers who had misdialed. Id. at 625.
We find the analysis here indistinguishable from the disclaimer analysis in Holiday Inns. Mishkoff has placed a conspicuous disclaimer informing customers that they had not reached Taubman’s official mall site. Furthermore, Mishkoff placed a hyperlink to Taubman’s site within the disclaimer. We find this measure goes beyond even what was done by the defendant in Holiday Inns. There, a customer who reached the defendant’s hotline in error had to hang up and redial the correct Holiday Inns number. Id. Here, a misplaced customer simply has to click his mouse to be redirected to Taubman’s site. Moreover, like Holiday Inns, the customers who stumble upon Mishkoffs site would otherwise have reached a dead address. They would have received an error message upon typing “shopsatwillow-bend.com,” simply stating that the name was not a proper domain name, with no message relating how to arrive at the official site. Hence, Mishkoffs website and its disclaimer actually serve to re-direct lost customers to Taubman’s site that might otherwise be lost.
b. December 7 Injunction—
The “sucks” Site
In regard to Mishkoffs “complaint site,” Taubman claims that Mishkoffs use is necessarily “ |
9,333,624 | 9,435,945 | 2003-02-07 | United States Court of Appeals for the Sixth Circuit | Taubman Co. v. Webfeats | Taubman Co. v. Webfeats, 319 F.3d 770 (2003) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_52 | in connection with the sale of goods. |
Following Planned Parenthood, Taub-man argues that all cybergriping sites are per se commercial and “ |
9,333,624 | 9,435,945 | 2003-02-07 | United States Court of Appeals for the Sixth Circuit | Taubman Co. v. Webfeats | Taubman Co. v. Webfeats, 319 F.3d 770 (2003) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_52 | use in connection with the advertising of goods and services | To he clear, we also find the Webfeats link to be " |
9,335,907 | 9,435,945 | 2002-12-05 | United States District Court for the Eastern District of Michigan | Big Boy Restaurants v. Cadillac Coffee Co. | Big Boy Restaurants v. Cadillac Coffee Co., 238 F. Supp. 2d 866 (2002) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_56 | The touchstone of liability under § 1114 is whether the defendant’s use of the disputed mark is likely to cause confusion among consumers regarding the origin of the goods offered by the parties. | ” 15 U.S.C. § 1125(a). See Therma-Scan, Inc. v. Thermoscan, Inc., 295 F.3d 623, 629 (6th Cir.2002), citing Daddy’s Junky Music Stores, Inc. v. Big Daddy’s Family Music Ctr., 109 F.3d 275, 280 (6th Cir.1997) (“ |
9,335,907 | 9,435,945 | 2002-12-05 | United States District Court for the Eastern District of Michigan | Big Boy Restaurants v. Cadillac Coffee Co. | Big Boy Restaurants v. Cadillac Coffee Co., 238 F. Supp. 2d 866 (2002) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_52 | user[s] in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive .... | Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
C. Count I (Federal Trademark Infringement), Count II (Federal Unfair Competition), and Count Four (Common Law Trademark Infringement and Unfair Competition)
Section 32 of the Lanham Act governs Federal Trademark Infringement and section 43(a) governs Federal Unfair Competition. 15 U.S.C. §§ 1114, 1125(a). As previously mentioned, the standard of proof for both of these federal claims is a likelihood of confusion. See Therma-Scan, Inc., 295 F.3d at 629, citing Daddy’s Junky Music Stores, 109 F.3d at 280; Champions Golf Club, Inc. v. The Champions Golf Club, Inc., 78 F.3d 1111, 1116, 1123 (6th Cir.1996) (explaining that the central inquiry in claims of trademark infringement and unfair competition is whether the defendant’s use of the plaintiffs mark is likely to cause confusion).
Trademark infringement, for example, occurs if a person, acting without the permission of a trademark’s owner, “user[s] in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive.... ” |
9,335,907 | 9,435,945 | 2002-12-05 | United States District Court for the Eastern District of Michigan | Big Boy Restaurants v. Cadillac Coffee Co. | Big Boy Restaurants v. Cadillac Coffee Co., 238 F. Supp. 2d 866 (2002) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_21 | on or in connection with any goods or services, ... uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact |
Similarly, a person engages in unfair competition if he or she, “on or in connection with any goods or services,... uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact” in a manner that is “likely to cause confusion.... ” |
9,298,748 | 9,435,945 | 2003-11-19 | United States District Court for the Eastern District of Michigan | Wells Fargo & Co. c. WhenU.com, Inc. | Wells Fargo & Co. c. WhenU.com, Inc., 293 F. Supp. 2d 734 (2003) | 2002-05-21 | United States Court of Appeals for the Sixth Circuit | Bird v. Parsons | Bird v. Parsons, 289 F.3d 865 (2002) | 9435945_52 | use in commerce... of a registered mark in connection with the sale, offering for sale, distribution or advertising | Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir.2000) (quoting Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 811 (4th Cir.1991)). It is because preliminary injunctive relief is such a “drastic” remedy that plaintiffs must show circumstances clearly demand its entry. Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (quoting 11A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2948 (2d ed.1995)).
II. Plaintiffs Have Not Demonstrated A Strong Likelihood of Success on the Merits of Their Trademark Claims
Plaintiffs contend that WhenU infringes on their trademarks in violation of Section 32(1) of the Lanham Act. That section provides in relevant part:
Any person who shall, without the consent of the registrant-
(a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive;...
15 U.S.C. § 1114(l)(a). To establish a claim for trademark infringement, plaintiffs must prove: (1) ownership of a valid mark that is entitled to protection under the Lanham Act, and (2) that WhenU’s use of the mark is likely to cause confusion within the consuming public. See Champions Golf Club, Inc. v. The Champions Golf Club, Inc., 78 F.3d 1111, 1114 (6th Cir.1996). It is established that plaintiffs own valid marks entitled to protection. The only issue is whether plaintiffs can establish the second element of their trademark infringement claim. Defendant Does Not “Use” the Plaintiffs’ Marks “In Commerce”
The Lanham Act only forbids the “ |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.