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Kromtech of USA, LLC v. Cox

United States District Court, E.D. Louisiana

December 23, 2014




Before the Court is a Motion to Dismiss for Lack of Personal Jurisdiction (Doc. 8). Additionally, the Court raises the issue of personal jurisdiction over Defendant, David Cox, sua sponte. For the following reasons, the Motion is GRANTED and this matter DISMISSED WITHOUT PREJUDICE for lack of personal jurisdiction.


Defendant David Cox is the managing member of Defendant Tech Talk America, LLC. Defendants operate a website called "PC Classes Online" ("the Website"). The Website offers classes on various computer-related topics to the general public free of charge. On January 1, 2014, Defendants posted a video on the popular website This video, which was posted on the Website on January 2, 2014, purports to warn members of the public about the dangers of using a software program entitled "MacKeeper." MacKeeper is a software program marketed by a German corporation, Kromtech Alliance Corporation. Plaintiff is allegedly the U.S. subsidiary of Kromtech Alliance. Plaintiff claims that it holds a license to use the intellectual property of Kromtech Alliance in the United States. Plaintiff alleges that the video posted on the Website and Youtube is defamatory and that Defendants violated Louisiana's unfair competition laws in posting the video. Plaintiff seeks damages and a preliminary injunction ordering Defendants to remove the video. Tech Talk responded to the Complaint with the instant Motion, arguing that this Court lacks personal jurisdiction over it.


"Where a defendant challenges personal jurisdiction, the party seeking to invoke the power of the court bears the burden of proving that jurisdiction exists."[1] When a court rules on a motion to dismiss for lack of personal jurisdiction without holding an evidentiary hearing, as in this case, the plaintiff need only make a prima facie showing of personal jurisdiction.[2] "The allegations of the complaint, except insofar as controverted by opposing affidavits, must be taken as true, and all conflicts in the facts must be resolved in favor of the plaintiff[] for purposes of determining whether a prima facie case for personal jurisdiction has been established."[3] "In determining whether personal jurisdiction exists, the trial court is not restricted to a review of the plaintiff's pleadings."[4] The Court may consider matters outside the complaint, including affidavits, interrogatories, depositions, or any combination of the recognized methods of discovery.[5]

Jurisdiction over a non-resident defendant is proper when (1) the defendant is amenable to service of process under the long-arm statute of the forum state, and (2) the exercise of personal jurisdiction is consistent with the Due Process Clause of the Fourteenth Amendment.[6] In the instant case, "these two inquiries merge into one because Louisiana's long-arm statute permits service of process coterminous with the scope of the due process clause."[7]

"The Due Process Clause of the Fourteenth Amendment protects a corporation, as it does an individual, against being made subject to the binding judgments of a forum with which it has established no meaningful contacts, ties, or relations.'"[8] A court may exercise personal jurisdiction over a non-resident defendant when (1) the defendant has purposefully availed itself of the benefits and protections of the forum state by establishing "minimum contacts" with the forum state; and (2) exercising personal jurisdiction over the defendant does not offend "traditional notions of fair play and substantial justice."[9]

"Minimum contacts" can be established through specific jurisdiction or general jurisdiction.[10] Specific personal jurisdiction exists when a defendant has purposely directed its activities, or availed itself of the privileges of conducting its activities, toward the forum state and the controversy arises out of or is related to those activities.[11] General personal jurisdiction exists when the defendant has engaged in continuous and systematic activities in the forum state, regardless of whether such activity is related to the plaintiff's cause of action.[12]

"If a nonresident defendant has sufficient related or unrelated minimum contacts with the forum, we must then consider whether the fairness' prong of the jurisdictional inquiry is satisfied."[13] The fairness inquiry is determined by analyzing several factors: (1) the burden upon the nonresident defendant of litigating in the forum state; (2) the interests of the forum state; (3) the plaintiff's interest in securing relief; (4) the judicial system's interest in obtaining an efficient resolution of controversies; and (5) the shared interest of the states in furthering fundamental substantive social policies.[14]


Before proceeding to the question of personal jurisdiction, the Court notes that only one of the two defendants, Tech Talk, has moved to dismiss this matter. The remaining defendant, Mr. Cox, has not yet been served. Nonetheless, the Court raises the issue of personal jurisdiction over David Cox sua sponte. [15] Ordinarily, when the Court raises the issue of personal jurisdiction sua sponte it should afford Plaintiff an opportunity to respond.[16] The Court finds that notice to Plaintiff is not necessary in this case because Plaintiff actually argued the issue of personal jurisdiction over Mr. Cox in his opposition. Therefore, Plaintiff has had an adequate opportunity to address the issue.

Because Plaintiff does not argue that the Court may exercise general personal jurisdiction over Defendants, the Court only analyzes the question of specific jurisdiction.[17]

To establish specific personal jurisdiction, Plaintiff must prove that: "(1) there are sufficient (i.e., not random fortuitous or attenuated') pre-litigation connections between the non-resident defendant and the forum; (2) the connection has been purposefully established by the defendant; and (3) the plaintiff's cause of action arises out of or is related to the defendant's forum contacts."[18] If Plaintiff meets its burden, Defendants "can then defeat the exercise of specific jurisdiction by showing (4) that it would ...

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