LTNRT, Inc. v. ?What If! Holdings Limited

Filing 17

MEMORANDUM OPINION AND ORDER. The trial date and related deadlines are terminated and will be re-set at a later date. Refer to order for further court deadlines and requirements. Signed by Honorable P. K. Holmes, III on May 8, 2013. (jas)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
LTNRT, INC. d/b/a/ WHAT IF CREATIVE
v.

PLAINTIFF

Case No. 2:13-CV-02072

?WHAT IF! HOLDINGS LIMITED

DEFENDANT

MEMORANDUM OPINION AND ORDER
On April 18, 2013, Defendant ?What If! Holdings Limited filed a Motion to Dismiss or, in
the alternative, Motion to Transfer (Doc. 9). In the Motion, Defendant asserts that the Complaint
should be dismissed for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure
12(b)(2), improper venue pursuant to Rule 12(b)(3), and for failure to state a claim pursuant to Rule
12(b)(6). In the alternative, Defendant requests that the case be transferred to the Southern District
of New York, where Defendant agrees it would be subject to personal jursidiction.
Plaintiff LTNRT, Inc. d/b/a What If Creative submitted a Response in Opposition (Doc. 13)
to Defendant’s Motion to Dismiss, which the Court will also construe as a Motion for Leave to
Conduct Jurisdictional Discovery. Plaintiff asks the Court to defer ruling on Defendant’s Motion
to Dismiss on the merits and allow Plaintiff the opportunity to conduct limited jurisdictional
discovery to establish whether minimum contacts sufficient to establish general personal jurisdiction
exist in this case.
Whether to grant jurisdictional discovery is a decision committed to the sound discretion of
the district court, and the denial of a plaintiff’s request to conduct jurisdictional discovery is
reviewed for abuse of discretion. Lakin v. Prudential Sec., Inc., 348 F.3d 704, 713 (8th Cir. 2003).
Jurisdictional discovery is properly denied “‘when a plaintiff offers only speculation or conclusory
-1-

assertions about contacts with a forum state.’” Viasystems, Inc. v. EBM-Papst St. Georgen GMBH
& Co., 646 F.3d 589, 598 (8th Cir. 2011) (quoting Dever v. Hentzen Coatings, Inc., 380 F.3d 1070,
1074 n.1 (8th Cir. 2004)). However, when a plaintiff offers documentary evidence in support of its
argument that general personal jurisdiction exists, a court should not dismiss the cause of action
before allowing the plaintiff to take jurisdictional discovery. Steinbuch v. Cutler, 518 F.3d 580, 58889 (8th Cir. 2008) (district court’s dismissal of complaint and refusal to allow plaintiff to conduct
limited jurisdictional discovery on the issue of the defendant’s minimum contacts with Arkansas was
abuse of discretion, as plaintiff had “offered documentary evidence, and not merely speculations or
conclusory allegations”).
Turning to the facts in the instant action, the Court finds that Plaintiff has alleged more than
mere speculation as to Defendant’s minimum contacts with Arkansas. Plaintiff asserts that
Defendant has made the claim that instances of actual consumer confusion have taken place
concerning Plaintiff’s and Defendant’s similar marks. Plaintiff states that since Arkansas is
Plaintiff’s primary place of business, and Plaintiff primarily represents local businesses in Fort
Smith, Arkansas, any actual confusion between the parties’ two marks is likely to have arisen in
Arkansas. Further, Plaintiff presents documentary evidence obtained from Defendant’s website at
www.whatifinnovation.com, showing that Lisa Buckley, one of Defendant’s directors, has business
contacts with Arkansas, and by extension, Defendant may also have contacts with Arkansas through
representation of clients that sell products in Wal-Mart stores. For these reasons, Plaintiff’s request
for limited jurisdictional discovery is meritorious and will be granted.
Accordingly, IT IS ORDERED that the Court’s decision regarding Defendant’s Motion to
Dismiss (Doc. 9) shall be deferred pending an opportunity for Plaintiff to conduct limited
-2-

jurisdictional discovery on the issue of Defendant’s minimum contacts with the forum.
Jurisdictional discovery will conclude by August 6, 2013.
IT IS FURTHER ORDERED that any supplementary briefing by Plaintiff on the topic of
personal jurisdiction and/or venue must be filed no later than August 12, 2013. Defendant may
submit a reply to any such briefing by Plaintiff on the subject of personal jurisdiction and/or venue
no later than August 29, 2013.
IT IS FURTHER ORDERED that until the Court resolves Defendant’s pending Motion to
Dismiss (Doc. 9), all deadlines set forth in the Court’s Initial Scheduling Order of April 18, 2013,
including the proposed trial date, are hereby terminated. The Court will issue a revised scheduling
order, if necessary, following its decision on Defendant’s Motion to Dismiss.
IT IS SO ORDERED this 8th day of May, 2013.

/s/P. K. Holmes, III
P.K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE

-3-