Cheat Code Central, LLC et al v. Wise et al

Filing 42

ORDER Granting 36 Motion for Leave to Conduct Limited Jurisdictional Discovery. Defendant's Motion to Dismiss (Doc. 17 ) is DENIED with leave to re-file as a Motion for Summary Judgment after the discovery is completed, by Judge John L. Kane on 03/13/2015. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-866-JLK
CHEAT CODE CENTRAL, LLC, a Colorado Corporation, and
DAVID MITCHELL ALLISON,
Plaintiffs,
v.
JEREMY N. WISE, an individual,
WISE ONLINE, LLC, an Ohio Limited Liability Corporation, and
WISE BUY NOW, LLC, an Ohio Limited Liability Corporation,
Defendants.
________________________________________________________________________
ORDER GRANTING MOTION FOR LIMITED JURISDICTIONAL DISCOVERY
________________________________________________________________________
KANE, J.
This diversity unfair competition and copyright infringement action is before me
on Defendants’ Motion to Dismiss for lack of personal jurisdiction (Doc. 17). Plaintiffs,
makers and purveyors of web-based “cheat codes” that provide hints and tricks for
navigating a consumer’s computer gaming experience, are Colorado residents who claim
Defendants copied content from their website and used it to create a “cheat code” iPhone
app being sold on iTunes. Defendants, who are Ohio residents, deny any substantial or
minimal contacts with Colorado and deny that selling content via iTunes nationally
establishes “specific jurisdiction” sufficient to permit the exercise of specific jurisdiction
over them in Colorado.

This case has a long history, with Allison having already failed once in efforts to
hale Wise to court in Colorado on “cheat code” infringement claims. In a decision issued
on December 26, 2007, Judge Blackburn found Wise had insufficient contacts with
Colorado to justify exercising personal jurisdiction over him on Allison’s claims, and
dismissed Mr. Allison’s civil action. See Order Granting Def.’s Mot. to Dismiss,
published as Allison v. Wise, 621 F. Supp.2d 1114 (D. Colo. 2007)(Allison I). The
dispute has apparently escalated since then, and when Wise began selling Allison’s “cheat
code” information on iTunes, Mr. Allison filed this second action.
I have reviewed the briefs and the relevant authorities, and find the introduction of
iTunes sales allegations sufficient to distinguish Allison I on its face. And while I tend to
agree with the district court’s analysis on the impact of plaintiff’s “own purchase of a
single copy of [defendant]’s work on iTunes” on establishing personal jurisdiction, I am
disinclined to posit that view as grounds for dismissing this second lawsuit between
Messrs. Allison and Wise without additional information. This dispute is entrenched and
ought to be resolved. Accordingly,
The Motion for Leave to Conduct Limited Jurisdictional Discovery (Doc. 36) is
GRANTED. The parties shall CONFER and SUBMIT for the Court’s approval a
Proposed Jursidictional Discovery Order providing for the limited jurisdictional discovery
necessary to an analysis of personal jurisdiction under Soma Med. Int’l v. Standard
Chartered Bk., 196 F.3d 1292 (10th Cir. 1999)(jurisdiction via internet website) and the
Erickson case (jurisdiction via iTunes sales). The Proposed Order shall be filed as a
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“Notice” event in the Court’s CM/ECF filing system, and shall be provided to the Court
in editable format emailed to [e-mail]. Defendant’s Motion to
Dismiss (Doc. 17) is DENIED with leave to re-file as a Motion for Summary Judgment
after the discovery is completed.

Dated this 13th day of March, 2015, at Denver, Colorado.

s/John L. Kane
SENIOR U.S. DISTRICT JUDGE

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