United States District Court, E.D. Louisiana
EXPRESS LIEN, INC.
EXPRESSLIENS USA, INC. ET AL.
ORDER AND REASONS
TRICHE MILAZZO, UNITED STATES DISTRICT JUDGE
the Court is Defendant Expressliens USA, Inc.'s Motion to
Dismiss for Lack of Personal Jurisdiction and Improper Venue
(Doc. 8). For the following reasons, the Motion is DENIED.
Express Liens Inc., dba as “Zlein, ” is a
construction title company organized under the laws of the
State of Delaware with its principal place of business in New
Orleans, Louisiana. Plaintiff operates an accounts receivable
and construction payment software platform. Defendant,
Expressliens USA, Inc., is also a construction title company
whose principal place of business and place of incorporation
are in Florida. Plaintiff alleges that, among other
things, Defendants have copied portions of its website and
distributed it on their confusingly similar website.
Plaintiff alleges that Defendants have violated federal laws
prohibiting copyright infringement, trade dress infringement,
unfair competition, cybersquatting, and federal trademark
infringement, as well as state laws prohibiting unfair trade
practices and breach of contract. Plaintiff seeks damages,
injunctive relief, and attorney's fees.
Expressliens USA, Inc. has filed the instant Motion to
Dismiss, arguing that this Court lacks personal jurisdiction
and that venue is improper. Plaintiff has opposed this
Motion, arguing that jurisdiction and venue are proper
pursuant to a forum selection clause.
non-resident defendant challenges the court's personal
jurisdiction, the party seeking to invoke the power of the
court bears the burden of proving that jurisdiction
exists. 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. “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.” “In
determining whether personal jurisdiction exists, the trial
court is not restricted to a review of the plaintiff's
pleadings.” The Court may consider matters outside the
complaint, including affidavits, interrogatories,
depositions, or any combination of the recognized methods of
alleges that jurisdiction and venue are proper in this Court
pursuant to a forum selection clause that Defendant allegedly
signed when it created an account on Plaintiff's website.
The allegations of Plaintiff's Complaint, which must be
accepted as true, state that Defendant created a free user
account on its website and thereby agreed to the “terms
of use” of its website. Plaintiff alleges that by
to a forum selection clause, which states that any dispute
arising out of a violation of intellectual property may be
filed in the federal district court in the Eastern District
of Louisiana. Such a clause is a permissive forum selection
clause. “A permissive [forum selection clause acts as]
a contractual waiver of personal-jurisdiction and venue
objections if litigation is commenced in the specified
forum.” Accordingly, by agreeing to
jurisdiction and venue in this district for disputes arising
out of a violation of intellectual property law. This matter,
involving copyright and trademark infringement, falls
squarely within the scope of the forum selection clause.
Court notes that in making this argument, Plaintiff has
and the forum selection clause therein. Defendant, however,
has not disputed the content of the forum selection clause as
quoted by Plaintiff in its opposition to this Motion. In
addition, “forum-selection clauses are presumed
enforceable, and the party resisting enforcement bears a
heavy burden of proof.” Accordingly, this Court finds
that Plaintiff has carried its burden to establish
jurisdiction and venue in this Court.
forgoing reasons, ...