United States District Court, M.D. Louisiana
RULING ON MOTION TO DISMISS
JAMES J. BRADY, District Judge.
Defendant, C.J. Printing, Inc., moves for this Court to dismiss all claims of Plaintiff, Southern Marsh Collection, L.L.C., because the Court lacks jurisdiction over the Defendant (doc. 5). Plaintiff asserts the following claims against Defendant: Trademark Infringement under the Lanham Act, False Designation of Origin and Dilution under the Lanham Act, Unfair and Deceptive Trade Practices under Louisiana Law, Trademark Infringement and Unfair Competition under Louisiana Law, and Trademark Infringement under South Carolina Law (doc. 1). Defendant's Motion to Dismiss for Lack of Personal Jurisdiction and all responsive briefs were considered for this Ruling.
STANDARD OF REVIEW
When a nonresident-defendant moves to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of establishing that the court has jurisdiction over the defendant. Dykes v. Maverick Motion Picture Grp., LLC, No. 08-536-JJB-CN, 2011 WL 900276, at *2 (M.D. La. Mar. 14, 2011)(citing Stuart v. Spademan, 772 F.2d 1185, 1192 (5th Cir. 1985). When considering a motion to dismiss for lack of personal jurisdiction, the Fifth Circuit directs courts to accept plaintiff's allegations as true, other than those which are controverted by the defendant or are simply conclusory statements, and to resolve conflicts between the parties' facts in plaintiff's favor. Id . (citing Panda Brandywine v. Potomac, 253 F.3d 865, 868 (5th Cir. 2001)).
A court may exercise personal jurisdiction over a nonresident-defendant only if the forum state's long-arm statute confers personal jurisdiction and the exercise of personal jurisdiction does not exceed the boundaries of due process. Dykes, at *4. The long-arm statute of Louisiana, the forum state here, authorizes the exercise of personal jurisdiction to the extent allowed by the Due Process Clause of the Fourteenth Amendment. Id . A court's exercise of personal jurisdiction over a nonresident-defendant comports with the due process clause when (1) the defendant has purposefully availed himself of the benefits and protections of the forum state by establishing minimum contacts with that state and (2) the court's exercise of jurisdiction over that defendant does not offend traditional notions of fair play and substantial justice. Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).
The first inquiry, into "minimum contacts, " is fact-intensive and no one element is decisive; rather, the touchstone is whether the defendant purposely directed his activities towards the forum state, such that he could reasonably foresee being haled into court there. Luv N' Care Ltd. v. Insta-Mix, Inc., 438 F.3d 465, 470 (5th Cir. 2006), quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). A party may establish minimum contacts sufficient for the state to assert specific jurisdiction or general jurisdiction. Alpine View Co. v. Atlas Copco, A.B., 205 F.3d 208, 215 (5th Cir. 2000).
Specific jurisdiction exists if a nonresident-defendant has "purposefully directed its activities at the forum state and the litigation results from alleged injuries that arise out of or relate to those activities." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985). That is, for a court to exercise specific jurisdiction (1) the defendant must have directed activities or purposely availed itself of the privileges of conducting activities in the forum state; (2) the cause of action must arise out of the defendants forum-related contacts; and (3) the court's exercise of jurisdiction must be fair and reasonable. Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 271 (5th Cir. 2006). Merely contracting with a resident of the forum state is insufficient to subject the nonresident to the forum's jurisdiction. Burger King, 471 U.S. at 472.
After determining whether a defendant has sufficient minimum contacts, the court must next determine whether the exercise of jurisdiction would "offend traditional notions of fair play and substantial justice." Int'l Shoe, 326 U.S. at 316. In doing so, the court considers (1) the burden on the defendant; (2) the interest of the forum state; (3) the plaintiff's interest in obtaining relief; (4) the interest of other states in securing the most efficient resolution to the controversy; and (5) the shared interest of the several states in furthering fundamental social policies. Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 113 (1987).
In 1999, the Fifth Circuit adopted the Zippo sliding scale for internet-based personal jurisdiction analysis. Mink v. AAAA Development L.L.C., 190 F.3d 333, 336 (5th Cir. 1999)(citing Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119, 1124 (W.D. Pa. 1997)). In 1997, when the Zippo ruling was issued, the sliding scale was explained as follows:
This sliding scale is consistent with well developed personal jurisdiction principles. At one end of the spectrum are situations where a defendant clearly does business over the Internet. 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. E.g. CompuServe, Inc. v. Patterson, 89 F.3d 1257 (6th Cir.1996). 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 personal jurisdiction. E.g. Bensusan Restaurant Corp., v. King, 937 F.Supp. 295 (S.D.N.Y.1996). 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. E.g. Maritz, Inc. v. Cybergold, Inc., 947 F.Supp. 1328 (E.D.Mo.1996).
Zippo, 952 F.Supp. at 1124. The Fifth Circuit more recently acknowledged the value of the Zippo sliding scale "because it can provide evidence of purposeful conduct." Pervasive Software Inc. v. Lexware GmbH & Co. KG, 688 F.3d 214, 227 n.7 (5th Cir. 2012)(internal citations omitted). However, the Court cautioned that "internet-based jurisdictional claims must continue to be evaluated on a case-by-case basis, focusing on the nature and quality of online and offline contacts to demonstrate the requisite purposeful conduct that establishes personal jurisdiction." Id . Further, regarding contacts through the internet, the Fifth Circuit acknowledged the following:
[D]ue process analysis has been refined... into a three-part test that seems fully applicable to jurisdiction questions generated by the new technologies: (1) Did the plaintiff's cause of action arise out of or result from the defendant's forum-related contacts? (2) Did the defendant purposely direct its activities toward the forum state or purposely avail itself of the privilege of conducting activities therein? (3) Would the exercise of personal jurisdiction over the defendant be reasonable and fair?
Id. at 227 (quoting 4a Charles Alan Wright et al., Fed. Prac. & Proc. § 1073.1, at 334 (3d ed. 2002)(citing Mink, 190 F.3d at 336)). The Court continued, if a "defendant's internet activities can satisfy each prong of this test, the exercise of specific ...