Josepha Campinha-Bacote v. Kristi Hudson, et al

Filing

Per Curiam OPINION filed : AFFIRMED the judgment of the district court dismissing for alck of jurisdiction; denying motion for sanctions [5339126-2] decision not for publication. Alice M. Batchelder, Circuit Judge; John M. Rogers, Circuit Judge and Deborah L. Cook, Circuit Judge.

Case: 15-3143

Document: 33-1

Filed: 10/02/2015

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0668n.06
Case No. 15-3143

FILED
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

JOSEPHA A. CAMPINHA-BACOTE, dba
Transcultural C.A.R.E. Associates,

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Plaintiff-Appellant,
v.
KRISTI HUDSON; DYNAMIC NURSING
EDUCATION, LLC,
Defendants-Appellees.

Oct 02, 2015
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF
OHIO

BEFORE: BATCHELDER, ROGERS, and COOK, Circuit Judges.
PER CURIAM. The absence of personal jurisdiction over the defendant decides this
appeal.
I.
Dr. Josepha Campinha-Bacote, as president and owner of an organization that trains and
educates healthcare workers in what is known as cultural competency, makes a practice of filing
suits alleging infringement of her copyrighted teaching model (ASKED model). As with other
defendants, Bacote discovered that Kristi Hudson and her business, Dynamic Nursing Education,
LLC (DNE) had used the ASKED model; Hudson had used it in an online class, for which
students paid tuition.
thousand dollars.

The record suggests profits from those classes amounted to several

Case: 15-3143

Document: 33-1

Filed: 10/02/2015

Page: 2

Case No. 15-3143
Campinha-Bacote v. Hudson

As for jurisdiction, Hudson’s class was available online throughout the United States,
including Ohio, but Hudson never went to, advertised in, transacted business in, or contracted to
buy or sell services in, Ohio. Hudson resides in British Columbia, Canada, Bacote alleges that
Hudson’s business, DNE, is a California LLC.
Bacote sued Hudson for copyright infringement in the United States District Court for the
Southern District of Ohio. Regarding service of process, after several failed attempts to serve
Hudson by mail in California, Bacote’s attorney (her son) hired his wife (an Ohio resident) to
travel to Campbell River, Canada (on the east coast of Vancouver Island) to personally serve
Hudson and her business. Bacote later moved for $6,421.33 in costs and attorney fees associated
with that process service on the ground that Hudson and her company failed to waive service.
Hudson moved to dismiss the complaint for lack of personal jurisdiction. Bacote then
amended her complaint adding conclusory jurisdictional allegations. Rather than answer the
amended complaint, Hudson relied on her motion to dismiss. Bacote nevertheless sought entry
of default against Hudson for failing to answer.
The district court dismissed Bacote’s complaint for lack of personal jurisdiction, denied
her motion for costs and attorney fees, and declined to enter default against Hudson. Bacote
appealed; Hudson seeks sanctions, calling the appeal frivolous. We affirm.
II.
Ohio’s long-arm statute and federal due process law guide our assessment about whether
Ohio could properly exercise personal jurisdiction over Hudson and her company.

Even

assuming that service on Hudson can satisfy Ohio’s long-arm statute, Bacote cannot show that an
exercise of personal jurisdiction over Hudson would comport with federal due process. Bacote’s
briefing fails to point this court to evidence that: (1) Hudson purposefully availed herself of the
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Case: 15-3143

Document: 33-1

Filed: 10/02/2015

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Case No. 15-3143
Campinha-Bacote v. Hudson

privilege of acting in Ohio; (2) her alleged copyright infringement arose from Ohio activities; or
(3) a substantial connection with Ohio makes the exercise of jurisdiction over Hudson
reasonable. S. Mach. Co. v. Mahasco Indus., Inc., 401 F.2d 374, 381 (6th Cir. 1968). Plainly,
nothing about Ohio played a role in Hudson’s alleged infringement, and Ohio’s interest in this
case is slight. As the district court noted, “the amended complaint does not allege any in-state
activity by Hudson.”
In terms of Bacote's motions, we agree with the district court that she merited neither
judgment by default nor attorney fees as a result of Hudson’s failure to waive service. First,
Hudson could stand on her motion to dismiss when Bacote’s later-filed amended complaint
included the same defect that prompted Hudson’s dismissal motion. See Wright, Miller & Kane,
6 Fed. Prac. and Proc. § 1476 (2d ed. 1990) (stating that when a defect raised in a motion to
dismiss remains in an amended pleading, a court may consider the original motion as addressing
the new pleading); see also Yates v. Applied Performance Techs., Inc., 205 F.R.D. 497, 499–500
(S.D. Ohio 2002) (applying this rule). Second, though Federal Rule of Civil Procedure 4(d)(2)
requires defendants who refuse to waive service to pay the expenses associated with serving a
recalcitrant party, the rule applies only to defendants located in the United States.
We decline to impose sanctions for the filing of this appeal. We cannot say that Bacote’s
weak and unmeritorious arguments are so frivolous as to call out for sanctions.
III.
We AFFIRM the judgment of the district court dismissing for lack of jurisdiction, and
DENY Hudson’s motion for sanctions.

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