Jordan Outdoor Enterprises, Ltd. v. HUBEI WILD TREES TEXTILES CO LTD et al

Filing 44

ORDER granting 26 Motion to Dismiss for Lack of Jurisdiction; terminating as moot 26 Motion for Partial Summary Judgment. Ordered by U.S. District Judge CLAY D LAND on 04/09/2014 (jcs)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
JORDAN
LTD.,

OUTDOOR

ENTERPRISES, *
*

Plaintiff,
*
vs.

CASE NO. 4:12-CV-297 (CDL)
*

HUBEI WILD TREES TEXTILES CO.,
LTD.,
*
Defendant.

*
O R D E R

Plaintiff
alleges

that

Trees”)

is

Jordan

Outdoor

Defendant

willfully

Hubei
selling

Enterprises,
Wild

Trees

products

Ltd.

Textiles

that

(“Jordan”)
Co.

(“Wild

infringe

on

its

copyrighted camouflage patterns to distributors who resell them
in

the

state

of

Georgia.

Jordan

filed

suit

for

copyright

infringement, unfair competition under federal and Georgia law,
and

cancellation

of

federal

copyright

registrations.

Jordan

also alleges a claim under the Georgia Deceptive Trade Practices
Act.
of

Wild Trees seeks dismissal of the entire action for lack

personal

Procedure
judgment.

jurisdiction

12(b)(2),

or

pursuant
in

the

to

Federal

alternative,

Rule
partial

of

Civil

summary

For the following reasons, Wild Trees’ motion to

dismiss (ECF No. 26) is granted, and its alternative motion for
partial summary judgment is terminated as moot.

12(b)(2) MOTION TO DISMISS STANDARD
When a plaintiff seeks to have a court exercise personal
jurisdiction over a nonresident defendant, that plaintiff “bears
the initial burden of alleging in the complaint sufficient facts
to

make

out

a

prima

facie

case

of

jurisdiction.”

Diamond

Crystal Brands, Inc. v. Food Movers Int’l, Inc., 593 F.3d 1249,
1257

(11th

Cir.

2010).

If

the

defendant

submits

evidence

challenging jurisdiction, “the burden traditionally shifts back
to the plaintiff to produce evidence supporting jurisdiction.”
Id.

“Where the plaintiff’s complaint and supporting evidence

conflict

with

the

defendant’s

affidavits,

the

court

must

construe all reasonable inferences in favor of the plaintiff.”
Meier ex rel. Meier v. Sun Int’l Hotels, Ltd., 288 F.3d 1264,
1269 (11th Cir. 2002).
JURISDICTIONAL FACTS
The

Court

permitted

the

parties

to

engage

in

limited

jurisdictional discovery to ascertain the full nature of Wild
Trees’ contacts with the state of Georgia.

The present record

reveals the following.
Jordan is a Georgia corporation in the camouflage industry
with

its

Jordan

principal

owns

the

place

of

well-known

camouflage patterns.

business
Realtree

in

and

Columbus,
Advantage

Georgia.
lines

of

Wild Trees is a designer and manufacturer

of camouflage goods with its only place of business in Hubei,

2

China.

Wang Dep. 12:3-13:1, ECF No. 42-7.

manufacturing takes place in Hubei.
2.

All design and

Wang Decl. ¶ 6, ECF No. 26-

Wild Trees has never sold or shipped any goods to Georgia,

registered to conduct business in Georgia, or had an agent for
service in Georgia.
subsidiaries,

Id. ¶¶ 3-4.

offices,

Wild Trees has never had any

employees,

records, or assets in Georgia.
never

negotiated

any

real

or

personal

Id. ¶¶ 2-3.

business

deals

with

property,

Wild Trees has
any

retailer,

distributor, wholesaler, or manufacturer in Georgia or placed
any advertisements in Georgia.

Id. ¶ 5.

Wild Trees maintains a website at www.wildtree.com.cn, and
Wild Trees does not place any restrictions on who can access it.
Wang Dep.

24:15-25:8.

Online sales cannot be conducted through

the website, even though it has an “on-line query” section.
at 28:22-29:10.
Pl.’s

Resp.

in

Wild Trees also has a catalogue in English.
Opp’n

to

Mot.

to

Dismiss

[hereinafter

Resp.] Ex. J, Wild Trees Catalogue, ECF No. 42-11.
maintains

that

the

catalogue

has

been

Pl.’s

Wild Trees

distributed

clients who are located in or travel to China.
21.

Id.

only

to

Wang Dep. 28:4-

Wild Trees has obtained nine U.S. copyrights for camouflage

patterns

that

Jordan

camouflage patterns.

contends

infringe

on

its

copyrighted

Pl.’s Resp. Ex. N, Wild Trees Copyright

Registrations, ECF No. 42-15.

Wild Trees has also obtained a

U.S. trademark registration for the Wild Trees mark used in

3

connection
Pl.’s

with

Resp.

Ex.

the
M,

allegedly
Wild

infringing

Trees

camouflage

Trademark

goods.

Registration

and

Application, ECF No. 42-14 (certifying that Wild Trees engages
in interstate commerce in the United States).
Wild Trees sells its camouflage goods to distributors such
as Jack Pyke of England (“Jack Pyke”) and Wildfowler Outfitter,
Inc. (“Wildfowler”).

Wang Dep. 32:11-34:4;

see also id.

at

10:20-11:24 (explaining that Wild Trees made sales to Jack Pyke
as recently as December 2013 and to Wildfowler as recently as
May 2013).

Wild Trees has sold goods in the United States only

to Wildfowler in Minnesota.

Id. at 23:7-24:1.

In 2010, Tom

Jacobsen of Wildfowler visited Wild Trees in China to arrange
for Wild Trees to manufacture clothing out of several camouflage
patterns, including Wild Trees’ patterns, which Wildfowler would
purchase and resell in the U.S.
Wildfowler

purchased

at

least

Id. at 23:10-17, 35:4-36:2.
$668,500

worth

of

infringing products from Wild Trees from 2011 to 2013.
Decl. ¶¶ 6,

13, ECF No. 42-1;

see also

allegedly
Jacobsen

Pl.’s Resp. Ex. C,

Commercial Invoice (Aug. 23, 2013), ECF No. 42-4 (reflecting
$202,199.57 worth of goods shipped from Wild Trees to Wildfowler
in Minnesota); Pl.’s Resp. Ex. D, Sales Confirmation (Apr. 26,
2012), ECF No. 42-5 (reflecting $166,388.96 worth of goods sold
by Wild Trees to Wildfowler in Minnesota); Wang Dep. 36:19-37:20
(identifying

sales

confirmation

4

for

all

2012

sales

to

Wildfowler); Pl.’s Resp. Ex. G, Email from T. Jacobson to W.
Wang

(Oct.

25,

2011),

ECF

No.

42-8

(discussing

$100,000

shipment); Pl.’s Resp. Ex. E, Email from T. Jacobsen to W. Wang
(July

28,

2011),

ECF

No.

42-6

(discussing

$300,000

purchase

order); Pl.’s Resp. Exs. H-I, Bills of Lading (Aug. 2012 – Sept.
2013), ECF Nos. 42-9 to 42-10 (noting Minnesota as place of
delivery).
Wildfowler sells and ships these products throughout the
United States, including Georgia.

Jacobsen Decl.

¶¶ 7-10.

Wildfowler has filled and will continue to fill orders received
by Georgia customers.

Id. ¶ 12.

Wildfowler currently has no

record of any Georgia sales; internet sales data from 2011-2012
were lost during a software upgrade.
September

11,

2012,

Jordan

Id. ¶ 11.

purchased

On July 18 and

allegedly

infringing

clothing from Wildfowler’s website and had the order shipped to
Georgia.
On

Pl.’s Resp. Ex. K, Wildfowler Invoices, ECF No. 42-12.

September

16,

2012,

Jordan

purchased

allegedly

infringing

clothing from Jack Pyke’s website, also shipping the order to
Georgia.

Pl.’s Resp. Ex. L, Jack Pyke Invoice, ECF No. 42-13.
DISCUSSION

To

determine

whether

Wild

to

personal

jurisdiction, the Court engages in a two-step inquiry.

Diamond

Crystal, 593 F.3d at 1257.
whether

the

exercise

of

Trees

is

subject

First, the Court must determine
personal

5

jurisdiction

would

be

appropriate

under

Georgia’s

long-arm

statute.

Id.

If

the

requirements of the long-arm statute are met, the Court must
then

determine

whether

the

exercise

of

personal

jurisdiction

would comport with the Due Process Clause of the United States
Constitution.

Id. at 1257-58.

Jordan argues that the Court has jurisdiction over Wild
Trees pursuant to subsection 3 of Georgia’s long-arm statute,
which provides that a court may exercise personal jurisdiction
over

a

nonresident

if

he

or

an

agent

“[c]ommits

a

tortious

injury in this state caused by an act or omission outside this
state if the tort-feasor . . . derives substantial revenue from
goods used or consumed or services rendered in this state.”
O.C.G.A. § 9-10-91(3).

Jordan argues that Wild Trees’ acts of

infringement committed in China cause tortious injury to Jordan
in

Georgia

and

asserts

that

Wild

Trees

“has

likely

derived

substantial revenue from Wildfowler’s sales of its infringing
goods to Georgia.”
While

the

Pl.’s Resp. 10, ECF No. 42.

facts

show

that

Wild

Trees

derived

at

least

$668,500 from goods sold to Wildfowler, there is insufficient
evidence to indicate that a substantial amount of revenue came
from goods resold in Georgia.

Even though Wildfowler lost the

internet sales data for 2011-2012, there is no evidence from
which to reasonably infer that internet sales to Georgia would
have reflected substantial revenue.

6

Jordan offers no evidence

of internet sales to Georgia before or after the data loss and
no evidence of non-internet sales to Georgia at any time.
Tom

Jacobsen,

owner

and

CEO

of

Wildfowler,

does

state

While
that

Wildfowler has sold and shipped Wild Trees’ products to Georgia
residents, he fails to give any indication of sales volume from
which to infer an amount or proportion of revenue.

The only

evidence of any revenue actually derived from goods Wildfowler
resold in Georgia shows that Jordan representatives purchased
two parkas at $47.95 each.

Wildfowler Invoices 1-2.

Even if

the Court strains to construe all reasonable inferences from the
scarce evidence available in Jordan’s favor, the record falls
far short of establishing that Wild Trees derived substantial
revenue from what Wildfowler has sold and shipped to Georgia
residents.
Jordan makes no real attempt to demonstrate that Wild Trees
“regularly does or solicits business” or “engages in any other
persistent course of conduct” in Georgia within the meaning of
subsection

3

or

that

statute has been met.1

any

other

subsection

O.C.G.A. § 9-10-91.

1

of

the

long-arm

Because Jordan has

Jordan asserts that Wild Trees is “directly and actively involved” in
selling infringing products in Georgia through Wildfowler and that it
is indisputable that they “acted together” to do so, Pl.’s Resp. 4;
however, Jordan cites absolutely no evidence to indicate that
Wildfowler or any other distributor is an agent of Wild Trees such
that online sales from their independent websites may be imputed to
Wild Trees directly, cf. Meier, 288 F.3d at 1275 (imputing resident
subsidiaries’ actions to nonresident parent company based on evidence

7

failed to show that Wild Trees’ conduct meets the independent
requirements of Georgia’s long-arm statute, the Court dismisses
the action for lack of personal jurisdiction.2
CONCLUSION
The Court grants Defendant’s motion to dismiss this action
for lack of personal jurisdiction (ECF No. 26) and terminates
Defendant’s alternative motion for partial summary judgment as
moot.

IT IS SO ORDERED, this 9th day of April, 2014.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE

that subsidiaries were corporate formality and agents of parent
company).
2
Having found insufficient evidence that Georgia’s long-arm statute
permits the exercise of personal jurisdiction over Wild Trees, there
is no need to reach the due process jurisdictional analysis. Diamond
Crystal, 593 F.3d at 1267.
The Court also declines to exercise
jurisdiction under the federal long-arm statute, Fed. R. Civ. P.
4(k)(2), because it appears that Wild Trees would be subject to
personal jurisdiction in Minnesota.

8