Fraserside IP LLC v. Waterweg et al

Filing 20

MEMORANDUM OPINION AND ORDER granting 13 Motion to Dismiss (See Order Text). Judgment shall enter accordingly. Signed by Judge Mark W Bennett on 2/24/2012. (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION

FRASERSIDE IP L.L.C., an Iowa
Limited Liability Company,
Plaintiff,

No. C11-3043-MWB

vs.
ROLAND WATERWEG, dba
www.eskimotube.com and dba
www.tjoob.com and JOHN DOES 1-100
and JOHN DOE COMPANIES 1-100,

MEMORANDUM OPINION AND
ORDER REGARDING DEFENDANT
ROLAND WATERWEG’S MOTION
TO DISMISS

Defendants.
____________________
TABLE OF CONTENTS
I. INTRODUCTION AND BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. Procedural Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
B. Factual Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
II. LEGAL ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
A. Rule 12(b)(2) Standards and Personal Jurisdiction . . . . . . . . . . . . . . . 7
B. Personal Jurisdiction Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.
General jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.
Specific jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
C. Limited Jurisdictional Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . 18
III. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Advances in technology bestow mixed blessings. The Internet has spawned a vast
amount of online activity, both good and bad. Here, defendant is alleged to have used the
Internet to willfully violate plaintiff’s copyright and trademarks through his websites’
offering of adult motion pictures. However, the merits of plaintiff’s claims are not
presently before me. Rather, I must resolve whether plaintiff has made a prima facie
showing that defendant, a Dutch citizen who resides in the Phillippines, has sufficient
minimum contacts with Iowa to satisfy due process and permit the exercise of personal
jurisdiction over him.
I. INTRODUCTION AND BACKGROUND
A. Procedural Background
On August 30, 2011, plaintiff Fraserside IP L.L.C. (“Fraserside”) filed a complaint
against Ronald Waterweg, doing business as www.eskimotube.com and www.tjoob.com,
(collectively “Waterweg”), John Does, and John Doe Companies, alleging the following
causes of action: copyright infringement, in violation of 17 U.S.C. §§ 106 and 501 et
seq.; contributory copyright infringement, in violation of 17 U.S.C. §§ 106 and 501 et
seq.; vicarious copyright infringement, in violation of 17 U.S.C. §§ 106 and 501 et seq.;
inducing copyright infringement, in violation of 17 U.S.C. §§ 106 and 501 et seq.;
trademark infringement, in violation of 15 U.S.C. § 1114; contributory trademark
infringement, in violation of 15 U.S.C. § 1114; vicarious trademark infringement, in
violation of 15 U.S.C. § 1114; false designation of origin, in violation of 15 U.S.C.
§ 1125(a); and, dilution of trademark, in violation of 15 U.S.C. § 1125(c).
On November 4, 2011, Waterweg filed a Motion to Dismiss (docket no. 13). In his
motion, Waterweg contends that he is not subject to personal jurisdiction in Iowa and the
2

Complaint must be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(2).
Alternatively, Waterweg asserts Fraserside is not the registrant or owner of any of the
copyrights or trademarks at issue and therefore has no standing to bring this case.
Waterweg argues that since Fraserside does not have standing to bring the copyright and
trademark claims, there are no claims over which subject matter jurisdiction exists and the
Complaint must be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1), or
Fraserside’s lack of standing means that it has failed to state a claim upon which relief may
be granted and the Complaint must be dismissed pursuant to Federal Rule of Civil
Procedure 12(b)(6).
On November 21, 2011, Fraserside filed a resistance to Waterweg’s motion.
Fraserside argues that Waterweg’s Internet activities establish a sufficient basis for specific
personal jurisdiction. Alternatively, Fraserside contends that the facts support a finding
of general jurisdiction over Waterweg. Fraserside further asserts that it has standing to
sue because it is the proper assignee of the copyrighted and trademarked products at issue.
Waterweg did not file a reply brief, but on December 21, 2011, he withdrew his Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6) challenges to the Complaint.
B. Factual Background
On a motion to dismiss, I must assume all facts alleged in the complaint are true,
and must liberally construe those allegations. Conley v. Gibson, 355 U.S. 41, 45-46
(1957). The following factual background is drawn from the Complaint, documents
attached to the Complaint, public records, and affidavits submitted by the parties.
1

1

I note that I may consider public records, those materials that are embraced by the
(continued...)
3

Plaintiff Fraserside is a wholly owned subsidiary of Fraserside Holdings, Ltd.
(“Fraserside Holdings”). Fraserside was created in October 2010. Fraserside Holdings
is a Cyprus-based company. Fraserside Holdings is a producer of adult motion pictures.
Its adult films are distributed on a wide range of platforms, including mobile handsets in
45 countries, digital television in 24 countries, broadband internet, a South American cable
channel, DVDs, and on demand and subscription based services on the Internet.
1

(...continued)
complaint, and documents attached to the complaint. See Illig v. Union Elec. Co., 652
F.3d 971, 976 (8th Cir. 2011) (“In addressing a motion to dismiss,’[t]he court may
consider the pleadings themselves, materials embraced by the pleadings, exhibits attached
to the pleadings, and matters of public record.’”) (quoting Mills v. City of Grand Forks,
614 F.3d 495, 498 (8th Cir. 2010)); Noble Sys. Corp. v. Alorica Cent., L.L.C., 543 F.3d
978, 983 (8th Cir. 2008) (“the district court is limited to the materials properly before it
on a motion to dismiss, which may include public records and materials embraced by the
complaint.”); Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999)
(noting that a court “generally must ignore materials outside the pleadings, but it may
consider ‘some materials that are part of the public record or do not contradict the
complaint,’ as well as materials that are “‘necessarily embraced by the
pleadings.’”)(citations omitted). Materials necessarily embraced by the complaint include
“documents whose contents are alleged in a complaint and whose authenticity no party
questions, but which are not physically attached to the pleading.” Kushner v. Beverly
Enters., 317 F.3d 820, 831 (8th Cir. 2003)); see Jenisio v. Ozark Airlines, Inc., Ret. Plan,
187 F.3d 970, 972 n.3 (8th Cir. 1999) (“A district court may consider documents on a
motion to dismiss where . . . the plaintiffs’ claims are based solely on the interpretation
of the documents and the parties do not dispute the actual contents of the documents.”).
I may also consider affidavits in deciding a motion to dismiss for lack of personal
jurisdiction under Rule 12(b)(2). See Stevens v. Redwing, 146 F.3d 538, 543 (8th Cir.
1998) (noting that “‘the court may inquire, by affidavits or otherwise, into the facts as they
exist.’”) (quoting Land v. Dollar, 330 U.S. 731, 735 n.4 (1947)); Block Indus. v. DHJ
Indus., Inc., 495 F.2d 256, 260 (8th Cir. 1974) (“The ‘prima facie showing’ must be
tested, not by the pleadings alone, but by the affidavits and exhibits presented with the
motions and in opposition thereto.”).
4

Fraserside Holdings, in turn, is a wholly owned subsidiary of Private Media Group, Inc.
(“Private Media”), a Nevada Corporation. Fraserside, its parent and sibling companies,
collectively, are known commercially as “Private.” Private has been producing adult
entertainment materials since 1968 in a variety of forms, including print magazines, adult
films, and online digital download and streaming.
Fraserside has protected its films through United States copyright registration.
Since 1975, Fraserside Holdings has registered its intellectual property in more than 25
countries, including Australia, Brazil, Canada, Chile, Denmark, Europe, France,
Germany, India, Italy, Japan, Mexico, Norway, New Zealand, Panama, Philippines,
Poland, South Africa, Spain, Sweden, Switzerland, Taiwan, Thailand, United Kingdom,
and Venezuela.
Fraserside Holdings has protected its trade names, PRIVATE, PRIVATE GOLD,
PIRATE, and THE PRIVATE LIFE OF, through United States trademark and service
mark registrations. Fraserside Holdings’s PRIVATE trademark and service mark have
been in continuous use in commerce since 1968. PRIVATE is United States Trademark
Registration No. 1014975. It was registered on July 1, 1975, and renewed on September
6, 2005. Fraserside Holdings’s PRIVATE GOLD trademark and service mark have been
in continuous use in commerce since 2004. PRIVATE GOLD is United States Trademark
Registration No. 3188677, and was registered on December 26, 2006. Fraserside
Holdings’s PRIVATE trademark and service mark design of two human female figures has
been in continuous use in commerce since December 2004. PRIVATE is United States
Trademark Registration No. 3389749, and was registered on May 28, 2008. Fraserside
Holdings’s PIRATE trademark and service mark have been in continuous use in commerce
since May 24, 2000. PIRATE is United States Trademark Registration No. 3137445, and
5

was registered on September 5, 2006. Fraserside Holdings’s THE PRIVATE LIFE OF
trademark and service mark have been in continuous use in commerce since September
1999. THE PRIVATE LIFE OF is United States Trademark Registration No. 2875138,
and was registered on August 17, 2004.
Defendant Ronald Waterweg is a Dutch citizen and a resident of the Phillippines.
He runs two websites, www.EskimoTube.com and www.Tjoob.com. Waterweg competes
against Fraserside in the distribution and sale of adult audio-visual works through the
Internet. Both www.EskimoTube.com and www.Tjoob.com are operated out of the
Phillippines. Waterweg and his websites have no employees in Iowa, no telephone number
in Iowa, and no agent for service of process in Iowa. Waterweg has never visited Iowa.
Waterweg and his websites do not advertise in Iowa. Waterweg does not maintain any of
his websites’ servers within Iowa.
The www.EskimoTube.com website does not provide for membership of any kind.
Although www.Tjoob.com does permit its users to register as members, it does not charge
for membership, and does not enter into any other contractual or financial arrangement
with its users. Both websites contain certain content generated by users of the websites
themselves. Both websites generate revenues through advertising and referral agreements
with other websites. For example, users of the websites looking to access non-user
generated full-length movies can click links to the video pages of websites operated by the
Pornstar Network, or Meta Interfaces.

6

II. LEGAL ANALYSIS
A. Rule 12(b)(2) Standards and Personal Jurisdiction
In considering Waterweg’s motion to dismiss for lack of personal jurisdiction
pursuant to Federal Rule of Civil Procedure 12(b)(2), Fraserside’s Complaint “must state
sufficient facts . . . to support a reasonable inference that [each defendant] may be
subjected to jurisdiction in the forum state.” Steinbuch v. Cutler, 518 F.3d 580, 585 (8th
Cir. 2008). “‘Once jurisdiction ha[s] been controverted or denied, [plaintiffs] ha[ve] the
burden of proving such facts.’” Dever v. Hentzen Coatings, Inc., 380 F.3d 1070, 1072
(8th Cir. 2004) (quoting Block Indus. v. DHJ Indus., Inc., 495 F.2d 256, 259 (8th Cir.
1974)); see Viasystems, Inc. v. EBM-Papst St. George GMBH & Co., K.G., 646 F.3d 589,
592 (8th Cir. 2011). Fraserside need not, however, establish jurisdiction by a
preponderance of the evidence until an evidentiary hearing is held, or until trial. Dakota
Indus., Inc. v. Dakota Sportswear, Inc., 946 F.2d 1384, 1387 (8th Cir. 1991). Where,
as here, “‘the district court does not hold a hearing and instead relies on pleadings and
affidavits, . . . the court must look at the facts in the light most favorable to the nonmoving
party, and resolve all factual conflicts in favor of that party.’” Pangaea, Inc. v. Flying
Burrito L.L.C., 647 F.3d 741, 745 (8th Cir. 2011)(quoting Dakota Indus., Inc., 946 F.2d
at 1387); Johnson v. Arden, 614 F.3d 785, 793-94 (8th Cir. 2010)( “‘If the District Court
does not hold a hearing and instead relies on pleadings and affidavits, then we must look
at the facts in the light most favorable to the nonmoving party and resolve all factual
conflicts in favor of that party.’”)(quoting Epps v. Stewart Information. Serv. Corp., 327
F.3d 642, 646–47 (8th Cir. 2003)); Romak USA, Inc. v. Rich, 384 F.3d 979, 983-84 (8th
Cir. 2004)(noting that a court “must view the evidence in the light most favorable to
[plaintiffs] and resolve factual conflicts in its favor.”).
7

For Fraserside to survive

Waterweg’s motion to dismiss under Rule 12(b)(2) for lack of personal jurisdiction,
Fraserside “‘need only make a prima facie showing of jurisdiction,’ and may do so by
affidavits, exhibits, or other evidence.” Romak USA, Inc., 384 F.3d at 983 (quoting Epps,
327 F.3d at 647); accord K-V Pharm. Co. v. J. Uriach & CIA, S.A., 648 F.3d 588, 591
(8th Cir. 2011); see Viasystems, Inc., 646 F.3d at 592; Pangaea, Inc., 647 F.3d at 745.
I “may assume jurisdiction over a foreign defendant only to the extent permitted by
the forum state’s long-arm statute and by the Due Process Clause of the Constitution.”
Dakota Indus., Inc. v. Ever Best Ltd., 28 F.3d 910, 915 (8th Cir. 1994); accord K-V
Pharm. Co., 648 F.3d at 592 (“Personal jurisdiction in a diversity case exists ‘only to the
extent permitted by the long-arm statute of the forum state and by the Due Process
Clause.’”)(quoting Dever, 380 F.3d at 1073 (internal quotation marks omitted)). Iowa’s
long-arm statute “expands Iowa’s jurisdictional reach to the widest due process parameters
2

allowed by the United States Constitution.” Hammond v. Florida Asset Fin. Corp., 695
N.W.2d 1, 5 (Iowa 2005) (discussing Iowa Rule of Civil Procedure 1.306). “As a result,
the Court is left with the sole issue of whether exercising personal jurisdiction over [the]
nonresident Defendant is consistent with principles of due process.” Brown v. Kerkhoff,
2

Iowa’s long-arm statute is actually set forth in two places: Iowa Code § 617.3 and
Iowa Rule of Civil Procedure 1.306. Section 617.3 provides for the service of “foreign
corporations or nonresidents contracting or committing torts in Iowa,” Iowa Code § 617.3
(2006), and Rule 1.306 provides for an “[a]lternative method of service” that applies to
“every corporation, individual, personal representative, partnership or association,” Iowa
R. Civ. P. 1.306. Rule 1.306 is the provision that specifically extends Iowa’s
jurisdictional reach to the federal constitutional limits. See Hammond, 695 N.W.2d at 5;
Larsen v. Scholl, 296 N.W.2d 785, 788 (Iowa 1980) (noting that Iowa Rule of Civil
Procedure 56.2 (now Rule 1.306), “unlike Iowa’s older ‘long-arm’ statute, section
617.3, . . . expands Iowa’s jurisdictional reach to the widest due process parameters of the
federal constitution”).
8

504 F. Supp. 2d 464, 499-500 (S.D. Iowa 2007); see Bell Paper Box, Inc. v. U.S. Kids,
Inc. (Bell Paper I), 22 F.3d 816, 818 (8th Cir. 1994) (“[W]hen a state construes its longarm statute to confer jurisdiction to the fullest extent permitted by the due process
clause . . . the inquiry collapses into the single question of whether exercise of personal
jurisdiction comports with due process.”).
“The Due Process Clause requires ‘minimum contacts’ between the nonresident
defendant and the forum state before the court may exercise jurisdiction over the
defendant.” Coen v. Coen, 509 F.3d 900, 905 (8th Cir. 2007) (citing World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980)). The Eighth Circuit Court of
Appeals has explained sufficient minimum contacts as follows:
“Sufficient contacts exist when the defendant’s conduct
and connection with the forum state are such that he should
reasonably anticipate being haled into court there, and when
maintenance of the suit does not offend traditional notions of
fair play and substantial justice.” By defendant’s reasonable
anticipation, we mean “there must be some act by which the
defendant purposefully avails itself of the privilege of
conducting activities within the forum State, thus invoking the
benefits and protections of its laws.” We have set “a five-part
test for measuring minimum contacts: (1) the nature and
quality of the contacts with the forum state; (2) the quantity of
those contacts; (3) the relation of the cause of action to the
contacts; (4) the interest of the forum state in providing a
forum for its residents; and (5) the convenience of the parties.”
Factors one through three are primary. With respect to the
third factor, we distinguish between specific jurisdiction and
general jurisdiction.
“‘Specific jurisdiction refers to
jurisdiction over causes of action arising from or related to a
defendant’s actions within the forum state,’ while ‘[g]eneral
jurisdiction . . . refers to the power of a state to adjudicate any

9

cause of action involving a particular defendant, regardless of
where the cause of action arose.’”
Id. (citations omitted); see K-V Pharm. Co., 648 F.3d at 592; Wells Dairy, Inc. v. Food
Movers Int’l, Inc., 667 F.3d 515, 518 (8th Cir. 2010); Steinbuch, 518 F.3d at 585-86;
Johnson v. Woodcock, 444 F.3d 953, 956 (8th Cir. 2006); Epps v. Stewart Information.
Servis. Corp., 327 F.3d 642, 648 (8th Cir. 2003); Guinness Import Co. v. Mark VII
Distributors, Inc., 153 F.3d 607, 613 (8th Cir. 1998); Aylward v. Fleet Bank, 122 F.3d
616, 618 (8th Cir. 1997); Burlington Indus., Inc. v. Maples Indus., Inc., 97 F.3d 1100,
1102 (8th Cir. 1996).
The Eighth Circuit Court of Appeals has further instructed that:
The purposeful availment requirement ensures that a defendant
will not be haled into a jurisdiction solely as a result of
random, fortuitous, or attenuated contacts or of the unilateral
activity of another party of a third person. Jurisdiction is
proper, however, where the contacts proximately result from
actions by the defendant himself that create a substantial
connection with the forum State.
Stanton v. St. Jude Med., Inc., 340 F.3d 690, 693-94 (8th Cir. 2003) (citations omitted).
“‘Minimum contacts must exist either at the time the cause of action arose, the time
the suit was filed, or within a reasonable period of time immediately prior to the filing of
the lawsuit.’” Johnson, 444 F.3d at 955-56 (quoting Pecoraro v. Sky Ranch For Boys,
Inc., 340 F.3d 558, 562 (8th Cir. 2003)). If the court determines that a defendant has the
requisite “minimum contacts within the forum state, these contacts may be considered in
light of other factors to determine whether the assertion of personal jurisdiction would
comport with ‘fair play and substantial justice.’” Burger King Corp. v. Rudzewicz, 471
U.S. 462, 476 (1985) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 320
(1945)); see Luv N. Care Ltd. v. Insta-Mix, Inc., 438 F.3d 465, 473 (5th Cir. 2006) (“It
10

remains for us to inquire whether the exercise of jurisdiction would offend traditional
notions of fair play and substantial justice. When a plaintiff makes its prima facie case that
the defendant has ‘minimum contacts’ with the forum state, the burden of proof shifts to
the defendant to show that the exercise of jurisdiction would be unreasonable.” (citation
and quotation omitted)). These other factors include:
“the burden on the defendant,” “the forum State’s interest in
adjudicating the dispute,” “the plaintiff’s interest in obtaining
convenient and effective relief,” “the interstate judicial
system’s interest in obtaining the most efficient resolution of
the controversies,” and the “shared interest of the several
States in furthering fundamental substantial social policies.”
Burger King Corp., 471 U.S. at 476-77 (quoting World Wide Volkswagen, 444 U.S. at
292).

“These considerations sometimes serve to establish the reasonableness of

jurisdiction upon a lesser showing of minimum contacts than would otherwise be
required.” Id. at 477. If, however, a defendant “seeks to defeat jurisdiction” when the
defendant purposefully “directed his activities at forum residents”—i.e., when minimum
contacts are clearly established—the defendant “must present a compelling case that the
presence of some other considerations would render jurisdiction unreasonable.” Id.
B. Personal Jurisdiction Analysis
Fraserside contends that Waterweg’s contacts with Iowa are sufficient to establish
either specific jurisdiction or general jurisdiction over Waterweg. I will consider each of
these jurisdictional grounds in turn.
1.

General jurisdiction

“A court obtains general jurisdiction ‘against a defendant who has ‘continuous and
systematic’ contacts with the forum state, even if the injuries at issue in the lawsuit did not
11

arise out of the defendant’s activities directed at the forum.’” Johnson, 614 F.3d at 794
(quoting Dever., 380 F.3d at 1073)(quoting in turn Helicopteros Nacionales de Colombia,
S.A. v. Hall, 466 U.S. 408, 415–16 (1984)). “For an individual, the paradigm forum for
the exercise of general jurisdiction is the individual’s domicile; for a corporation, it is an
equivalent place, one in which the corporation is fairly regarded as at home.” Goodyear
Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2853–54 (2011); see
Viasystems, Inc., 646 F.3d at 592 (quoting Brown, 131 S. Ct. at 2853-54). Fraserside
contends that Waterweg is subject to general personal jurisdiction based on the websites,
www.EskimoTube.com and www.Tjoob.com, owned and run by Waterweg.
In Lakin v. Prudential Sec., Inc., 348 F.3d 704, 710 (8th Cir .2003), the Eighth
Circuit Court of Appeals adopted the “sliding scale” approach established by Zippo Mfg.
Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D.Pa.1997), to determine if
website contacts provide a basis for specific jurisdiction. Lakin, 348 F.3d at 710 (“We
agree with our sister circuits that the Zippo model is an appropriate approach in cases of
specific jurisdiction—, i.e., ones in which we need only find ‘minimum contacts.’”). The
“sliding scale” approach recognizes that “‘the likelihood that personal jurisdiction can be
constitutionally exercised is directly proportionate to the nature and quality of the
commercial activity that the entity conducts over the Internet.’” Id. (quoting Zippo Mfg.
Co., 952 F. Supp. at 1124). In Lakin, the Eighth Circuit Court observed that:
“At one end of the spectrum are situations where a defendant
clearly does business over the Internet. If the defendant enters
into contracts with residents of a foreign jurisdiction that
involve the knowing and repeated transmission of computer
files over the Internet, personal jurisdiction is proper. At the
opposite end are situations where a defendant has simply
posted information on an Internet Web site which is accessible
to users in foreign jurisdictions. A passive Web site that does
12

little more than make information available to those who are
interested in it is not grounds for the exercise [of] personal
jurisdiction. The middle ground is occupied by interactive
Web sites where a user can exchange information with the host
computer. In these cases, the exercise of jurisdiction is
determined by examining the level of interactivity and
commercial nature of the exchange of information that occurs
on the Web site.”
Id. at 710–11 (quoting Zippo Mfg. Co., 952 F. Supp. at 1124).
The Eighth Circuit Court of Appeals concluded that, while the Zippo model is an
appropriate approach when considering specific jurisdiction, it is insufficient, in and of
itself, for determining whether a defendant’s contacts are both substantial and continuous
for purposes of general jurisdiction. Id. at 711; see CollegeSource, Inc. v. AcademyOne,
Inc., 653 F.3d 1066, 1075 (9th Cir. 2011) (noting that “the interactivity of a non-resident
defendant’s website typically ‘provides limited help in answering the distinct question
whether the defendant’s forum contacts are sufficiently substantial, continuous, and
systematic to justify general jurisdiction.’”) (quoting Mavrix Photo, Inc. v. Brand Tech.,
Inc., 647 F.3d 1218, 1227 (9th Cir. 2011)); Revell v. Lidov, 317 F.3d 467, 471 (5th Cir.
2002) (noting that the Zippo sliding scale “is not well adapted to the general jurisdiction
inquiry, because even repeated contacts with forum residents by a foreign defendant may
not constitute the requisite substantial, continuous and systematic contacts required for a
finding of general jurisdiction.”). As the Eighth Circuit Court of Appeals noted, “[u]nder
the Zippo test, it is possible for a [website] to be very interactive, but to have no quantity
of contacts.” Lakin, 348 F.3d at 712. Thus, the court of appeals held that the Zippo test
was only a starting point in conducting a website-based general jurisdiction analysis. In
addition to considering the characteristics of a website under the Zippo test, it is also
necessary to weigh the quantity of the defendant’s contacts via its website. See id.
13

Consequently, in considering whether Waterweg’s contacts with Iowa are sufficient to
establish general jurisdiction, I must consider, inter alia, the nature, quality, and quantity
of those contacts. See id.(citing Aftanase v. Economy Baler Co., 343 F.2d 187, 197 (8th
Cir. 1965)); see also Pangaea, Inc., 647 F.3d at 746 n.4; Johnson, 614 F.3d at 794;
Steinbuch, 518 F.3d at 585.
Waterweg is a Dutch citizen who resides in the Phillippines. Waterweg has no
employees in Iowa, no telephone number in Iowa, and no agent for service of process in
Iowa.

Waterweg has never visited Iowa.

Waterweg does not advertise in Iowa.

Waterweg does not maintain any of his websites’ servers within Iowa. Waterweg’s total
absence of contacts with the State of Iowa is the antithesis of the type of continuous and
systematic contacts necessary for exercising general personal jurisdiction over Waterweg.
See VGM Fin. Servs. v. Singh, 708 F. Supp. 2d 822, 835 (N.D. Iowa 2010) (finding
defendant’s contacts with Iowa insufficient to establish general jurisdiction where, among
other factors, defendant did not have an office, telephone number, bank account or any
employees, representatives, or agents in Iowa).
The www.EskimoTube.com website does not provide for membership of any kind.
On the other hand, www.Tjoob.com does permit its users to register as members, but, it
does not charge for membership, and does not enter into any other contractual or financial
arrangement with its users.

Both websites generate revenues exclusively through

advertising and referral agreements with other websites. For example, users of the
websites looking to access non-user generated full-length movies can click links to the
video pages of websites operated by the Pornstar Network or Meta Interfaces. Fraserside,
however, has presented no evidence of any Iowa resident having a membership for
www.Tjoob.com, or even visiting either website. See Lakin, 348 F.3d 704, 712–13
14

(finding interactive website insufficient to confer general jurisdiction without information
about the quantity of defendant’s contacts with state residents through the website). Thus,
I conclude Fraserside has failed to meet its burden of demonstrating that Iowa courts have
general jurisdiction over Waterweg. See Viasystems, Inc., 646 F.3d at 595; Wells Dairy,
Inc., 667 F.3d at 518; Miller v. Nippon Carbon Co., Ltd., 528 F.3d 1087, 1090 (8th Cir.
2008); Romak, 384 F.3d at 983–84.
2.

Specific jurisdiction

“In contrast to general, all-purpose jurisdiction, specific jurisdiction is confined to
adjudication of ‘issues deriving from, or connected with, the very controversy that
establishes jurisdiction.’” Brown, 131 S. Ct. at 2851 (quoting Arthur T. von Mehren &
Donald T. Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 HARV. L. REV.
1121, 1136 (1966)). Thus, “[s]pecific jurisdiction is proper ‘only if the injury giving rise
to the lawsuit occurred within or had some connection to the forum state, meaning that the
defendant purposely directed its activities at the forum state and the claim arose out of or
relates to those activities.’” Johnson, 614 F.3d at 795 (quoting Steinbuch, 518 F.3d at
586). Fraserside asserts that specific jurisdiction over Waterweg exists because Waterweg
has directed tortious conduct at it, an Iowa business. Fraserside relies upon the Calder
effects test formulated by the United States Supreme Court in Calder v. Jones, 465 U.S.
783 (1984) and cites the recent decision in CYBERsitter, L.L.C. v. People’s Republic of
China, ---F. Supp. ---, 2011 WL 3322552 (C.D. Cal. Aug. 1, 2011), in which the district
court applied the Ninth Circuit Court of Appeals’s expansive interpretation of Calder to
conclude that it had specific jurisdiction over defendant Chinese companies. The Calder
effects test provides that:
“a defendant’s tortious acts can serve as a source of personal
jurisdiction only where the plaintiff makes a prima facie
15

showing that the defendant’s acts (1) were intentional, (2) were
uniquely or expressly aimed at the forum state, and (3) caused
harm, the brunt of which was suffered—and which the
defendant knew was likely to be suffered—[in the forum
state].”
Johnson, 614 F.3d at 796 (quoting Lindgren v. GDT, 312 F. Supp. 2d 1125, 1132 (S.D.
Iowa 2004)); see Viasystems, Inc., 646 F.3d at 595 (quoting Johnson, 614 F.3d at 796).
The Calder effects test “allows the assertion of personal jurisdiction over non-resident
defendants whose acts ‘are performed for the very purpose of having their consequences
felt in the forum state.’” Dakota Indus., Inc. v. Dakota Sportswear, Inc., 946 F.2d 1384,
1390–91 (8th Cir. 1991) (quoting Brainerd v. Governors of Univ. of Alberta, 873 F.2d
1257, 1260 (9th Cir. 1989)). Moreover, the Eighth Circuit Court of Appeals, unlike the
Ninth Circuit Court of Appeals, construes the Calder effects test narrowly. See Johnson,
614 F.3d at 796-97 (“Additionally, even if the effect of Heineman’s alleged statement was
felt in Missouri, we have used the Calder test merely as an additional factor to consider
when evaluating a defendant’s relevant contacts with the forum state. . . We therefore
construe the Calder effects test narrowly, and hold that, absent additional contacts, mere
effects in the forum state are insufficient to confer personal jurisdiction.”); see also
Furminator, Inc. v. Wahba, No. 4:10CV01941, 2011 WL 3847390, at *3 (E.D. Mo. Aug.
29, 2011) (noting that the Eighth Circuit Court of Appeals construes the Calder effects test
narrowly); Oticon, Inc. v. Sebotek Hearing Sys., L.L.C.,, ---F. Supp.---, 2011 WL
3702423, at *15 (D.N.J. Aug. 22, 2011) (noting in Johnson, the Eighth Circuit Court of
Appeals expressly clarified its position that it construes the Calder effects test narrowly);
Express Scripts, Inc. v. Care Continuum Alliance, Inc., 2011 WL 219967, at *4 (E.D.
Mo. June 7, 2011) (observing that “[t]he Eighth Circuit has narrowly construed the Calder
effects test. . .”). Although I accept as true Fraserside’s allegations that Waterweg
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intentionally infringed Waterweg’s registered copyrights and trademarks, these allegations,
alone, fail to demonstrate that Waterweg “uniquely or expressly aimed” its tortious acts
at Iowa. Johnson, 614 F.3d at 796. Thus, I conclude that Fraserside has failed to
demonstrate that Waterweg’s actions were “‘performed for the very purpose of having
their consequences felt in the forum state.’” Dakota Indus., 946 F.2d at 1390–91 (quoting
Brainerd, 873 F.2d at 1260).
Even assuming, arguendo, Fraserside could demonstrate that Waterweg’s actions
were aimed at Iowa and that the consequences Waterweg’s actions were felt in Iowa, the
Calder effects test is “merely an additional factor to consider when evaluating a
defendant’s relevant contacts with the forum state.” Johnson, 614 F.3d at 796–97. I must
also consider the five factors developed by the Eighth Circuit Court of Appeals in
determining whether a nonresident defendant has sufficient minimum contacts with the
forum state to exercise personal jurisdiction over him. As discussed above, I must
consider: (1) the nature and quality of the contacts with the forum state; (2) the quantity
of the contacts with the forum state; (3) the relation of the cause of action to the contacts;
(4) the interest of the forum state in providing its residents a forum; and (5) the
convenience of the parties. See K-V Pharm. Co., 648 F.3d at 592; Wells Dairy, Inc., 667
F.3d at 518 Steinbuch, 518 F.3d at 585-86; Johnson, 444 F.3d at 956. Of these factors,
“the first three factors are of primary importance, and the last two are ‘secondary
factors.’” Id. After considering these five factors, I conclude that Fraserside has not
demonstrated that Waterweg has sufficient minimum contacts with Iowa to justify
exercising personal jurisdiction over him. As discussed above, Waterweg has a total
absence of contacts with the State of Iowa. Thus, the nature and quality of Waterweg’s
contacts with Iowa; the quantity of contacts with Iowa; and the relation of the cause of
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action to Waterweg’s contacts all decidedly weigh against exercising personal jurisdiction
over him. While Iowa has an interest in providing a local forum in which its resident
corporations may litigate claims against non-residents, Iowa’s “interest in providing its
residents with a forum cannot make up for the absence of minimum contacts.” Digi–Tel
Holdings, Inc., v. Proteq Telecomms.(PTE), Ltd., 89 F.3d 519, 525 (8th Cir. 1996).
Additionally, the convenience of the parties is, at best, a neutral factor as Fraserside’s
counsel is Arizona-based. Thus, both parties will be required to travel to litigate this case
regardless of my ruling on Waterweg’s motion.
Thus, after considering all five relevant factors, I conclude that the exercise of
general or specific personal jurisdiction over Waterweg is inappropriate under the Iowa
long-arm statute and fails to comport with due process. Thus, viewing the circumstances
of this case as a whole, Fraserside has failed to make a prima facie case of personal
jurisdiction over Waterweg.
C. Limited Jurisdictional Discovery
Fraserside alternatively contends that, even if it did not make a prima facie showing
of personal jurisdiction, I should delay ruling on Waterweg’s motion and permit Fraserside
limited jurisdictional discovery. The Federal Rules of Civil Procedure provide for liberal
discovery. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34 (1984) (“Liberal discovery
is provided for the sole purpose of assisting in the preparation and trial, or the settlement,
of litigated disputes.”). Courts “have broad discretion in [their] resolution of discovery
problems that arise in cases pending before [them].” In re Multi–Piece Rim Prods. Liab.
Litig., 653 F.2d 671, 679 (D.C. Cir. 1981). When a plaintiff offers only speculation or
conclusory assertions about contacts with a forum state, a court is within its discretion in
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denying jurisdictional discovery. See Viasystems, Inc. v. EBM-Papst St. Georgen GMBH
& Co., 646 F.3d 589, 598 (8th Cir. 2011) (noting that “‘[w]hen a plaintiff offers only
speculation or conclusory assertions about contacts with a forum state, a court is within its
discretion in denying jurisdictional discovery.’”) (quoting Dever v. Hentzen Coatings, Inc.,
380 F.3d 1070, 1074 n.1 (8th Cir. 2004) (quoting in turn Carefirst of Md., Inc. v.
Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 402 (4th Cir. 2003)); ALS Scan, Inc. v.
Digital Serv. Consultants, Inc., 293 F.3d 707, 716 n.3 (4th Cir. 2002) (affirming district
court’s refusal to allow plaintiff to engage in jurisdictional discovery where plaintiff’s
request was based on “conclusory assertions”); McLaughlin v. McPhail, 707 F.2d 800,
806 (4th Cir. 1983) (holding that district court did not abuse its discretion in denying
jurisdictional discovery where plaintiff “offered nothing beyond his bare allegations that
the defendants had had significant contacts with the [forum] state of Maryland” (internal
quotation marks omitted));; see also Rich v. KIS Cal., Inc., 121 F.R.D. 254, 259
(M.D.N.C.1988) (“[W]here a plaintiff’s claim of personal jurisdiction appears to be both
attenuated and based on bare allegations in the face of specific denials made by defendants,
the Court need not permit even limited discovery confined to issues of personal jurisdiction
should it conclude that such discovery will be a fishing expedition.”).
Here, Fraserside has offered nothing but conclusory assertions about Waterweg’s
contacts with Iowa. Fraserside has failed to proffer facts that, if proven, would affect my
exercise of jurisdiction over Waterweg. Thus, its request for jurisdictional discovery is
denied. See Viasystems, Inc., 646 F.3d at 598.

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III. CONCLUSION
For the reasons previously discussed, Waterweg does not have sufficient “minimum
contacts” with Iowa such that the maintenance of this lawsuit would offend “traditional
notions of fair play and substantial justice.” Int’l Shoe Co., 326 U.S. at 316, 66 S. Ct.
154. I, therefore, grant Waterweg’s Motion to Dismiss and deny Fraserside’s request for
jurisdictional discovery. Judgment shall enter accordingly.
IT IS SO ORDERED.
DATED this 24th day of February, 2012.

__________________________________
MARK W. BENNETT
U. S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

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