United States District Court, E.D. Louisiana
ANNIE SLOAN INTERIORS, LTD.
DAVIS PAINT CO. AND KEVIN OSTBY
ORDER AND REASONS
ANN VIAL LEMMON UNITED STATES DISTRICT JUDGE.
IS HEREBY ORDERED that defendants's
Motion to Dismiss for Lack of Personal
Jurisdiction (Rec. Doc. 11) is
DENIED; IT IS FURTHER
ORDERED that defendants's Motion to
Transfer Pursuant to 28 U.S.C. 1404(a) (Rec. Doc.
13) is hereby DENIED.
matter is before the court on the Motion to Dismiss for Lack
of Personal Jurisdiction filed by defendant Kevin Ostby, in
which Ostby seeks dismissal of the claims against him due to
lack of jurisdiction over his person, and the Motion to
Transfer Pursuant to 28 U.S.C. 1404(a) (Rec. Doc. 13) filed
by Ostby and Company ("Davis"), in which they argue
that the Western District of Missouri is a more convenient
forum. Plaintiff, Annie Sloan Interiors, Ltd.
("ASI") opposes both motions. For the reasons which
follow, the motions are denied.
the creator of a line of decorative paint products sold under
the ANNIE SLOAN® and CHALK PAINT® trademarks. Davis
Paint Company ("Davis") is the American
manufacturer of ASI's paint products, and Ostby is
Davis' president. Until recently, non-party Jolie Design
& Décor, Inc. (“JDD”), was the
American distributor of ASI's paint products. JDD is a
Louisiana corporation owned and operated by Louisiana
residents Lisa Rickert, Scott Rickert ("the
Rickerts"), and Jason Mobley.
2010, ASI, JDD, and Davis signed a manufacturing agreement
under which Davis would manufacture ASI's products for
JDD's exclusive distribution within the United States.
Under that agreement, Davis manufactured and shipped paint to
Louisiana since 2010. However, over time, the relationship
deteriorated between ASI and JDD, and in May 2018, ASI
informed JDD that it would be terminating their distribution
agreement as of November 5, 2018.
in anticipation of this development, in April of 2018, the
Rickerts and Jason Mobley formed a new Louisiana company,
Jolie Home, LLC (“JHL”). The complaint alleges
that it was their plan to have Davis produce the same
“chalk paint” products for JHL that Davis had
previously made for ASI, and to stop making paint for ASI.
Eventually, Davis did enter into a manufacturing agreement
with JHL, and ceased manufacturing paint for ASI.
alleges that in furtherance of this plan, Ostby directed and
received numerous communications to and from the Rickerts in
Louisiana. For example, in March 2018, the Rickerts, Mobley,
and Ostby participated in a text message exchange in which
they discussed the launch of the new company, and in which
Lisa Rickert stated that she had “decided that the new
name will be Jolie and we will push as The Original Chalk
Paint.” On May 11, 2018, Lisa Rickert sent Ostby an
email with a proposed label for JHL's paint can, which
this court, in a related case,  has found infringed on ASI's
long-time label by copying its trade dress. (Ex. 1-22). Kevin
Ostby replied the same day that “[t]his may come to a
head quickly, you might think about paper labels [as opposed
to lithography labels] to start everywhere.” On May 24,
2018, Ostby sent an email to the Rickerts advising them of
the expected time frame to produce JHL's cans. During
June 2018, Ostby and Lisa Rickert exchanged numerous text
messages, which also reference related telephone discussions
of their plans to produce JHL's paint products. Between
July 3 and July 5, 2018, Ostby and Scott Rickert exchanged
multiple emails related to the production of JHL's
infringing paint products, including how to overlay JHL
labels on top of ASI's labels so that ASI's paint
could be passed off and sold as JHL's products.
5, 2018, Ostby also sent an email to Lisa Rickert stating
that his lawyer was concerned about JHL's infringing
label. Lisa Rickert replied to Ostby and stated that JHL
planned to go forward with design and content as it stood.
September 6, 2018, ASI filed this action against Davis and
Ostby in the Eastern District of Louisiana. ASI asserted
claims against Ostby in his individual capacity for
misrepresentation, contributory infringement and unfair
competition, and violations of Louisiana's Unfair Trade
Practices Act (“LUTPA”).
Motion to Dismiss for Lack of Subject Matter Jurisdiction
motion to dismiss under Federal Rule of Civil Procedure
12(b)(2), the plaintiff bears the burden of demonstrating
that personal jurisdiction over the defendant is proper.
Seiferth v. Helicopteros Attuneros, Inc., 472 F.3d
266, 270 (5th Cir. 2006). In the absence of formal discovery
or an evidentiary hearing, only a prima facie showing that
jurisdiction is present is needed to survive a Rule 12(b)(2)
motion to dismiss. Id.
general, personal jurisdiction over a defendant is proper if
it is permitted by a long-arm statute and if the exercise of
that jurisdiction does not violate federal due process.
ICEE Distrib., Inc. v. J&J Snack Foods, 325 F.3d
586, 591 (5th Cir. 2003). Because Louisiana authorizes
jurisdiction to the full extent permitted by the
Constitution, see La. Stat. Ann. § 13:3201, the sole
issue in this motion is whether the exercise of jurisdiction
over defendant Ostby would be consistent with due process.
See Dickson Marine Inc. v. Panalpina, Inc., 179 F.3d
331, 335 (5th Cir. 1999).
the Fourteenth Amendment's Due Process Clause, courts may
exercise personal jurisdiction over any defendant who has
sufficient “minimum contacts” with the forum such
that the “maintenance of the suit does not offend
traditional notions of fair play and substantial
justice.” Int'l Shoe Co. v. Washington,
326 U.S. 310, 316. Personal jurisdiction over a non-resident
defendant is either general or specific. General jurisdiction
is present when the defendant's activities in the forum
state are sufficiently substantial or continuous and
systematic to justify the exercise of jurisdiction over him
in all matters. See Helicopteros ...