Blue Water International, Inc. v. Hattrick's Irish Sports Pub, LLC
Filing
23
ORDER granting 7 and 8 --motions to dismiss; denying the Missouri bar's request for attorney's fees; directing the clerk to CLOSE the case. Signed by Judge Steven D. Merryday on 9/21/2017. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
BLUE WATER INTERNATIONAL, INC.
doing business as HATTRICK’S,
Plaintiff,
v.
CASE NO. 8:17-cv-1584-T-23AEP
HATTRICK’S IRISH
SPORTS PUB, LLC,
Defendant.
____________________________________/
ORDER
Several “Hattrick’s” bars serve food and alcohol in the United States.1 Most
market themselves as sports bars (in hockey and soccer, a “hat trick” describes a
player’s scoring three goals in one game). On this occasion, Hattrick’s of Tampa,
Florida sues (Doc. 12) Hattrick’s of O’Fallon, Missouri for statutory and common
law trademark infringement and unfair competition and alleges that the Missouri
bar’s name and use of a shamrock2 confuse consumers in some unspecified market.
A block from the Tampa Convention Center, the Tampa bar allegedly discovered the
Missouri bar after several convention-goers purportedly inquired about the Tampa
bar’s relation to the Missouri bar. Under Rules 12(b)(2) and (3), Federal Rules of
1
A “Hattrick’s” or “Hat trick’s” restaurant exists in at least Tampa, Florida; O’Fallon,
Missouri; Hatfield, Pennsylvania; Dallas, Texas; and Covington, Kentucky. The restaurants appear
unaffiliated.
2
The Tampa bar replaces the jot in “Hattrick’s” with a shamrock; the Missouri bar replaces
the apostrophe in “Hattrick’s” with a shamrock.
Civil Procedure, the Missouri bar moves (Docs. 7 and 19) to dismiss for lack of
personal jurisdiction and improper venue.3
DISCUSSION
Little or no disagreement appears about the facts. Instead, the parties dispute
whether the facts establish the propriety of personal jurisdiction in Florida over the
Missouri bar, which sells no food, alcohol, or merchandise in Florida; maintains no
office or restaurant in Florida; employs nobody in Florida; purchases no newspaper,
television, radio, mail, magazine, or Internet advertisement targeting Florida; and
maintains no bank account in Florida. (Doc. 7-2) The Missouri bar maintains
accounts on Twitter and Facebook; on Twitter, the Missouri bar “follows” several
Florida sports teams, including the Lightning, the Buccaneers, and the Rays.4 Also,
Yelp and TripAdvisor.com maintain pages that permit the public to rate and to read
reviews about the Missouri bar. Despite the Missouri bar’s lack of contact with
Florida, the Tampa bar argues that the Missouri bar subjected itself to personal
jurisdiction in Florida by following the Florida sports teams on Twitter and by
3
A plaintiff bears the initial burden of alleging facts sufficient to show a “prima facie case of
personal jurisdiction.” United Tech. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009). An order
resolving a motion to dismiss for lack of personal jurisdiction must accept the truth of a well-pleaded
factual allegation but need not accept a vague or conclusory statement. Snow v. DirecTV, Inc.,
450 F.3d 1314, 1318 (11th Cir. 2006). If a defendant submits an affidavit that refutes the factual
allegations on which personal jurisdiction depends, the burden “shifts back to the plaintiff to
substantiate the jurisdictional allegations.” United Tech. Corp., 556 F.3d at 1274.
4
“Following” an account on Twitter causes “tweets” from that account to appear in the
follower’s Twitter feed.
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posting on Facebook. Implicit in the Tampa Bar’s argument is the availability in
Florida of the Internet, through which a Floridian might5 access the Facebook,
Twitter, Yelp, or TripAdvisor pages.
The exercise of personal jurisdiction requires both statutory authorization and
constitutional sanction. Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla. 1989).
The Missouri bar challenges under both the Florida long-arm statute and the Due
Process Clause the exercise of personal jurisdiction in Florida.
I. Statutory authorization
First, the Tampa bar argues that the Florida long-arm statute subjects
the Missouri bar to general jurisdiction in Florida. (Doc. 13 at 12) Under
Section 48.193(2), Florida Statutes, general jurisdiction requires “substantial and
not isolated activity within this state.” Interpreting that phrase, the Eleventh Circuit
explains that a “corporation cannot be subject to general jurisdiction in a forum
unless the corporation’s activities in the forum closely approximate the activities that
ordinarily characterize a corporation’s place of incorporation or principal place or
business.” Carmouche v. Tamborlee Mgmt., Inc., 789 F.3d 1201, 1205 (11th Cir. 2015).
Incorporated in Missouri (Doc. 13-4), the Missouri bar operates only in
O’Fallon, Missouri. (Doc. 7-2 at 1) As explained above, the Missouri bar maintains
5
The complaint contains no well-pleaded factual allegation that a Floridian viewed the
Facebook, Twitter, Yelp, or TripAdvisor page, and no record evidence shows that a Floridian
viewed any of the pages. Even if a Floridian viewed the pages, that viewing amounts at best to an
“attenuated” contact insufficient to sustain personal jurisdiction in Florida. (See Section II)
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no restaurant or office in Florida, sells nothing in Florida, employs nobody in
Florida, issues no paycheck in Florida, maintains no bank account in Florida,
and directs no advertising at Florida. (Doc. 7-2) Nothing about the Missouri bar’s
relation with Florida “closely approximate[s]” a principal place of business in
Florida. Cf. Perkins v. Benguet Consol. Min. Co., 342 U.S. 437, 419–20 (1952)
(affirming the exercise of general jurisdiction in Ohio over a defendant that
corresponded from Ohio, maintained a bank account in Ohio, withdrew money
in Ohio from the bank account, directed business from Ohio, and held directors’
meetings in Ohio).
Second, the Tampa bar invokes Section 48.193(1)(a)(2), which subjects
to the jurisdiction of a Florida court a defendant that “commit[s] a tortious act
within this state.” The considered weight of authority holds that trademark
infringement and unfair competition occur “where the passing off occurs, i.e,
where the deceived customer buys the defendant’s product in the belief that he is
buying the plaintiff’s.” Vanity Fair Mills, Inc. v. T. Eaton Co., 234 F.2d 633, 639
(2d Cir. 1956) (Waterman, J.); accord Cottman Transmission Sys., Inc. v. Martino,
36 F.3d 291, 294–95 (3d Cir. 1994) (Weis, J.); 6 McCarthy on Trademarks & Unfair
Competition § 32:38.40 (4th ed. 2017) (“Today, almost all courts follow the [Vanity
Fair] rule that a claim of trademark infringement takes place where the allegedly
infringing sales occur.”). Because the defendant undisputedly sells food, alcohol,
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and merchandise only in Missouri, the alleged trademark infringement and unfair
competition occurred in Missouri.6
Nothing in Licciardello v. Lovelady, 544 F.3d 1280 (11th Cir. 2008), compels
a contrary conclusion. Although Licciardello states that the alleged infringement
“occurred in Florida by virtue of the website’s accessibility in Florida” Licciardello
observes elsewhere that the defendant’s “website offered CD’s for sale that provided
management advice.”7 And evidence in Licciardello suggested that the defendant
earned at least several thousand dollars from the sale in Florida of allegedly
infringing albums. Similarly, in Nida Corp. v. Nida, 118 F.Supp.2d 1223, 1226
(M.D. Fla. 2003) (Presnell, J.), the defendant admittedly sold products in Florida.
In contrast, the Missouri bar undisputedly sells no food, alcohol, or merchandise
in Florida specifically or on the Internet generally. (Doc. 7-2) The Tampa bar cites
a Facebook post by the Missouri bar that announces: “New shirts are in! Grab
one while they last!” (Doc. 13-6) But no link to purchase a shirt online appears in
the post, and an owner of the Missouri bar declares that it sells nothing online.
6
Internet Sols. Corp. v. Marshall, 39 So. 3d 1201 (Fla. 2010), says nothing about the location
of trademark infringement. Marshall, which emphasizes its narrow holding, decides only that
defamation occurs in Florida if the defendant publishes a defamatory statement accessed in Florida.
7
Many decisions hold that a website’s offering a product for sale fails to establish personal
jurisdiction wherever a person might buy the product (in other words, wherever the Internet is
available). Rather, the defendant’s website must sell a “significant” quantity of goods to people in
the forum. See, e.g., Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414 (9th Cir. 1997) (Rymer, J.); Dynetech
Corp. v. Leonard Fitness, Inc., 523 F.Supp.2d 1344 (M.D. Fla. 2007) (Antoon, J.); Bensusan Rest. Corp.
v. King, 937 F.Supp. 295 (S.D.N.Y. 1996) (Stein, J.); Enter. Rent-A-Car Co. v. Stowell, 137 F.Supp.2d
1151 (E.D. Mo. 2001) (Mummert, J.); cf. also Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339
(11th Cir. 2013) (affirming the exercise of personal jurisdiction over a defendant who undisputedly
sold “substantial quantities” of allegedly counterfeit merchandise in Florida).
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(Doc. 7-2) In sum, the well-pleaded factual allegations and the record evidence fail
to establish the applicability of Sections 48.193(2) or 48.193(1)(a)(2).
II. Due process
Even if Florida’s long-arm statute authorizes jurisdiction in Florida over
the Missouri bar, the exercise of personal jurisdiction violates due process in this
instance. Under threat of a default judgment, a summons imposes on a defendant
the burden of appearing and defending an action. Due process, from which a long
line of decisions discerns the requirement of “minimum contacts,” reduces the
likelihood that a summons forces a person to litigate in an inconvenient or distant
forum. In other words, due process permits a person to predict “with some minimum
assurance . . . where” his conduct “will and will not render [him] liable to suit.”
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980); accord Int’l Shoe
Co. v. Washington, 326 U.S. 310 (1945). If a person prefers not to litigate in a forum,
he can elect not to conduct business there, reasonably confident that he will not face
protracted litigation in that forum.
The Tampa bar advances four arguments why the exercise of personal
jurisdiction comports with due process: (1) the Missouri bar committed an
“intentional tort” in Florida; (2) the tort resulted in harm to the plaintiff, which
resides in Florida; (3) a Florida resident can access the Missouri bar’s Facebook,
Twitter, Yelp, and TripAdvisor accounts; and (4) the Missouri bar follows several
Florida sports teams on Twitter. The first two arguments ignore the Supreme
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Court’s repeated guidance that the minimum-contacts determination depends on the
location of the defendant’s conduct rather than the location of the plaintiff’s injury;
the last two arguments impermissibly risk subjecting a defendant to suit throughout
the United States.
Citing Calder v. Jones, 465 U.S. 783 (1984), the Tampa bar’s response (Doc. 13)
in opposition emphasizes that the allegedly “intentional” tort harmed the plaintiff,
which resides in Florida. Although several decisions arguably interpret Calder to
authorize personal jurisdiction wherever the plaintiff suffers the “effects” of an
intentional tort, a careful reading of Calder refutes that interpretation. In Calder,
a Florida reporter researched and wrote an allegedly defamatory article about a
California citizen. Before publication, the reporter telephonically interviewed
several California residents and called the defendant’s home in California to request
comment about the forthcoming article. At publication, the Florida reporter knew
that more than 600,000 copies of the allegedly defamatory article would circulate
in California.8
Affirming the exercise in California of personal jurisdiction over the Florida
reporter, Calder states that the “brunt of the [plaintiff’s] harm . . . was suffered in
California.” 465 U.S. at 789. But, again, Calder observes elsewhere that the “[t]he
article was drawn from California sources.” If Calder’s observation about the location
8
Similarly, the defendant in Licciardello, whom the plaintiff employed as a manager,
undisputedly knew that the plaintiff resided in Florida. Also, evidence in Licciardello suggested that
the defendant earned at least several thousand dollars from Florida sales.
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of the “brunt of the [plaintiff’s] harm” contributes to confusion whether the
location of the plaintiff’s injury can confer personal jurisdiction, Walden v. Fiore,
134 S.Ct. 1115 (2014), resolves the confusion: An analysis that considers the location
of the plaintiff’s injury “impermissibly allows a plaintiff’s contacts with the defendant
and the forum to drive the jurisdictional analysis.” 134 S.Ct. at 1124.
Also, Calder involves defamation, which occurs wherever the defamatory
statement circulates. Keeton v. Hustler Mag., Inc., 465 U.S. 770, 777 (1984). In other
words, Calder’s discussion of the location of the “effects” “was largely a function
of the nature of the libel tort.” Walden, 134 S.Ct. at 1124 (interpreting Calder). As
explained above, the weight of authority holds that trademark infringement and
unfair competition occur not where the plaintiff suffers an injury but rather where
the alleged infringer sells a product. Under Hanson v. Denckla, 357 U.S. 235 (1958),
Calder, and Walden, the fact that the plaintiff allegedly suffered an injury in Florida
as a consequence of a purportedly “intentional” tort is insufficient to subject the
Missouri bar to suit in Florida.
In any event, the confusing and conflicting allegations in the complaint belie
the Tampa bar’s claim of an “intentional” tort.9 For example, the Tampa bar alleges
that the Missouri bar’s “actions . . . appear[] to be an intentional obfuscation on the
part of [the Missouri bar].” (Doc. 12 at ¶ 23) An allegation of apparently intentional
9
Two weeks after the motion to dismiss, the Tampa bar amended the complaint. (Doc. 12)
Rather than allege facts to show an intentional tort expressly aimed at Florida, the amended
complaint persists in alleging, for example, apparently intentional obfuscation, “constructive”
knowledge, and negligence.
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obfuscation is not an allegation of intentional trademark infringement. And the
Tampa bar alleges the hallmark of negligence: the Missouri bar “knew or should have
known of ” the Tampa bar’s putative trademark. (Doc. 12 at ¶ 33) Even if Calder
and Licciardello permit exercising personal jurisdiction in the residence of a plaintiff
allegedly harmed by an intentional tort (neither decision so holds), the prospect that
the Missouri bar negligently infringed the Tampa bar’s putative trademark would fail
to establish personal jurisdiction in Florida.
Additionally, the Tampa bar cites the Missouri bar’s presence on Facebook,
Twitter, Yelp and TravelAdvisor.com, websites accessible in Florida and the other
forty-nine states. Unlike a Twitter or Facebook account, which requires a person
to register, a business’s presence on Yelp or TripAdvisor.com requires no action by
the business. For example, Yelp permits any person to report to Yelp the opening
of a new restaurant. In determining whether the exercise of personal jurisdiction
comports with due process, “the conduct at issue is that of the defendant[].” Ruiz de
Molina v. Merritt & Furman Ins. Agency, Inc., 207 F.3d 1351, 1356 (11th Cir. 2000).
Because no evidence in the present record shows that the Missouri bar created the
Yelp or TripAdvisor page, neither page can contribute to the minimum-contacts
determination.
Even if the Missouri bar created the Yelp or TripAdvisor page, the exercise of
personal jurisdiction in this circumstance up-ends the protection of due process and
risks subjecting the defendant to personal jurisdiction in any Internet-accessible
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forum (that is, everywhere in the United States). As explained elsewhere in this
order, the Missouri bar neither offers anything for sale in Florida nor sells anything
in Florida. Subjecting the Missouri bar to personal jurisdiction in Florida merely
because a Floridian might view the Missouri bar’s Facebook, Twitter, Yelp, or
TripAdvisor pages “offend[s] traditional notions of fair play and substantial justice.”
Adv. Tactical Ordinance Sys., LLC v. Real Action Paintball, Inc., 751 F.3d 796, 803
(7th Cir. 2014) (Wood, J.) (observing that a website “should not open a defendant
up to personal jurisdiction in every spot on the planet where that [] website is
accessible”) (quoting Int’l Shoe Co., 326 U.S. at 316).
Finally, the Tampa bar asserts that the Missouri bar’s “following” a Florida
sports team on Twitter demonstrates a “conscious decision to conduct business in
the Florida marketplace.” (Doc. 12 at ¶ 47) Of course, the exercise of personal
jurisdiction requires some allegation or evidence that the defendant “purposefully
avails itself of the privilege of conducting activities within” a state. Hanson, 357 U.S.
at 253. Under the Tampa bar’s implausibly expansive view of personal jurisdiction,
the Missouri bar purposefully availed itself of the “privilege of conducting activities”
in at least seventeen states by following all the NHL teams on Twitter. And the
Tampa bar’s argument, which assumes that following a Florida team on Twitter
amounts to conducting business “within” Florida, raises somewhat ethereal and
stubbornly intractable questions about where, if anywhere, a “tweet” exists.
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In any event, common sense refutes the suggestion that the Missouri bar’s
Twitter activity constitutes an entry into the Florida food-and-alcohol market. More
than a thousand miles distant from Tampa, the Missouri bar sells no food or alcohol
in Florida for at least the reasons that the bar lacks the licenses necessary to sell food
and alcohol in Florida and maintains a presence only in O’Fallon, Missouri. An
“attenuated” contact at best, the Missouri bar’s following the Buccaneers, the
Lightning, and the Rays on Twitter (by itself or in combination with the accessibility
in Florida of the Missouri bar’s Facebook, Yelp, and TripAdvisor pages) fails to
establish personal jurisdiction in Florida. See World-Wide Volkswagen, 444 U.S. at 299
(explaining that an “attenuated [] contact” cannot justify personal jurisdiction).
III. Venue
The Tampa bar alleges that venue in the Middle District of Florida “is
proper . . . because Plaintiff is located in this District.” Under 28 U.S.C.
§ 1391(b)(1), venue is proper in the defendant’s residence, not the plaintiff’s.
Incorporated in Missouri and operating only in Missouri, the Missouri bar resides
outside the Middle District of Florida.
Also, the Tampa bar alleges that venue in the Middle District of Florida
“is proper . . . because certain facts giving rise to the claims” occurred in the
Middle District of Florida. Under 28 U.S.C. § 1391(b)(2), venue is proper where
a “substantial part of the events or omissions giving rise to the claim
occurred.” The Tampa bar’s one-sentence response to the motion to dismiss
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for improper venue states that “[v]enue is proper in the Middle District of Florida
because Plaintiff, located in Tampa, Florida, was injured in the district as a result
of Defendant’s intentional trademark infringement.” (Doc. 13 at 16) As explained
above, the weight of authority holds that trademark infringement and unfair
competition occur not where the plaintiff suffers an injury but rather where the
defendant sells an allegedly infringing product. See, e.g., Woodke v. Dahm, 70 F.3d
983, 985–86 (8th Cir. 1995) (Arnold, J.) (rejecting an identical argument and
affirming the dismissal of an action for improper venue); Cottman, 36 F.3d at 295–96.
Because an insubstantial part of the claim arose in the Middle District of Florida,
venue is improper under 28 U.S.C. § 1391(b)(2).
CONCLUSION
A Tampa bar called “Hattrick’s” sues in the Middle District of Florida a
Missouri bar called “Hattrick’s” for trademark infringement and unfair competition.
The Missouri bar, which operates a tavern only in O’Fallon, Missouri, maintains no
restaurant or office in Florida; employs nobody in Florida; sells nothing in Florida;
manufactures nothing in Florida; maintains no website and sells nothing online;
purchases no newspaper, radio, magazine, television, Internet advertisement to
solicit business from Florida; and maintains no bank account in Florida. The totality
of the Missouri bar’s purported “contact” with Florida comprises a Twitter account
that follows several Florida sports teams and Facebook, Yelp, and TripAdvisor pages
accessible in Florida.
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In this circumstance, at least four reasons compel granting the motion to
dismiss for lack of personal jurisdiction and improper venue. First, the Tampa bar
fails to establish the applicability of Florida’s long-arm statute. Nothing about the
Missouri bar’s relation with Florida “closely approximates” a principal place of
business in Florida, which precludes the exercise of general jurisdiction. Although
the long-arm statute permits exercising specific jurisdiction over a defendant that
“commit[s] a tort within” Florida, the considered weight of authority holds that
trademark infringement and unfair competition occur where the alleged infringer
sells a product rather than where the plaintiff resides. Second, the exercise of
personal jurisdiction absent “minimum contacts” with Florida violates due process.
Third, subjecting the defendant to suit in Florida because a Floridian might access
the Missouri bar’s Facebook, Twitter, Yelp, or TripAdvisor page “offends traditional
notions of substantial justice and fair play.” Fourth, venue is improper in the Middle
District of Florida because the defendant resides outside this district and because an
insubstantial part of the claims occurred in this district. The motions (Docs. 7 and
19) to dismiss for lack of personal jurisdiction and improper venue are GRANTED,
and the action is DISMISSED.
Although the Tampa bar’s arguments for personal jurisdiction and venue
ultimately fail, dicta in several decisions arguably appears to support the Tampa
bar (in fact, the applicable precedent decisively favors the Missouri bar). Not
“objectively baseless,” the attempt to subject the Missouri bar to the jurisdiction of
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a court in Florida merits no attorney’s fee. See Octane Fitness, LLC v. ICON Health &
Fitness, Inc., 134 S.Ct. 1749 (2014) (clarifying the “exceptional” conduct that warrants
an attorney’s fee under the Patent Act, which contains a fee-shifting provision
materially identical to the Lanham Act). The Missouri bar’s request for an attorney’s
fee is DENIED, and the clerk is directed to CLOSE this case.
ORDERED in Tampa, Florida, on September 21, 2017.
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