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Annie Sloan Interiors Ltd. v. Davis Paint Co.

United States District Court, E.D. Louisiana

January 25, 2019


         SECTION: "S" (1)



         IT 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.

         This 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.


         ASI is 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.

         In 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.

         Apparently 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.

         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, [1] 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.

         On July 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.

         On 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”).


         I. Motion to Dismiss for Lack of Subject Matter Jurisdiction Applicable Law

         On a 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.

         In 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).

         Under 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 ...

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