Tomelleri v. Medl Mobile, Inc. et al
Filing
49
MEMORANDUM AND ORDER granting MEDL's 36 Renewed Motion to Dismiss for Lack of Personal Jurisdiction. Signed by District Judge Julie A. Robinson on 04/29/2015. Mailed to pro se defendant Jason Siniscalchi by regular mail. (mg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOSEPH R. TOMELLERI,
Plaintiff,
v.
MEDL MOBILE, INC., et al.,
Defendants.
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Case No. 2:14-CV-02113-JAR
MEMORANDUM AND ORDER
Plaintiff Joseph Tomelleri brings this action under 17 U.S.C. § 101 et seq., alleging
claims for direct, vicarious, and contributory copyright infringement against Defendant MEDL
Mobile, Inc (“MEDL”). On May 7, 2014, MEDL filed a Motion to Dismiss for Lack of Personal
Jurisdiction (Doc. 9). Plaintiff then moved for jurisdictional discovery, and the Court granted
that motion. The parties completed jurisdictional discovery in October 2014.
The case now comes before the Court on MEDL’s Renewed Motion to Dismiss for Lack
of Personal Jurisdiction (Doc. 36). The motion is fully briefed and the Court is prepared to rule.
For the reasons stated in detail below, the Court lacks both general and specific personal
jurisdiction over MEDL. MEDL’s contacts with Kansas are not so substantial and continuous as
to render MEDL essentially at home in this state. Further, though MEDL has purposefully
directed activities at the state of Kansas, Plaintiff’s cause of action does not arise out of those
forum-related activities. The Court grants MEDL’s motion to dismiss.
I.
Standard
Plaintiff bears the burden of establishing personal jurisdiction over MEDL.1 In the
absence of an evidentiary hearing, as in this case, the plaintiff must make only a prima facie
showing of jurisdiction to defeat a motion to dismiss.2 “The plaintiff may make this prima facie
showing by demonstrating, via affidavit or other written materials, facts that if true would
support jurisdiction over the defendant.”3 Allegations in a complaint are accepted as true if they
are plausible, non-conclusory, and non-speculative, to the extent that they are not controverted
by submitted affidavits.4 When a defendant has produced evidence to support a challenge to
personal jurisdiction, a plaintiff has a duty to come forward with competent proof in support of
the jurisdictional allegations of the complaint.5 The court resolves all factual disputes in favor of
the plaintiff.6 Conflicting affidavits are also resolved in the plaintiff’s favor, and “the plaintiff’s
prima facie showing is sufficient notwithstanding the contrary presentation by the moving
party.”7
III.
Background
The Court takes the following facts from Plaintiff’s Complaint and the affidavits and
1
Shrader v. Biddinger, 633 F.3d 1235, 1239 (10th Cir. 2011).
2
AST Sports Sci., Inc. v. CLF Distrib. Ltd., 514 F.3d 1054, 1056–57 (10th Cir. 2008); Wenz v. Memery
Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995).
3
Emp’rs Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1159 (10th Cir. 2010) (citing TH Agric. &
Nutrition, LLC v. Ace European Grp. Ltd., 488 F.3d 1282, 1286 (10th Cir. 2007)); OMI Holdings, Inc. v. Royal Ins.
Co. of Can., 149 F.3d 1086, 1091 (10th Cir. 1998).
4
Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir. 2008) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544 (2007)); Pytlik v. Prof’l Res., Ltd., 887 F.2d 1371, 1376 (10th Cir. 1989); Behagen
v. Amateur Basketball Ass’n of U.S.A., 744 F.2d 731, 733 (10th Cir. 1984), cert. denied, 471 U.S. 1010 (1985).
5
Pytlik, 887 F.2d at 1376.
6
Dudnikov, 514 F.3d at 1070.
7
Behagen, 744 F.2d at 733.
2
exhibits submitted by both parties. Plaintiff Joseph Tomelleri, a Kansas resident, is an illustrator
of various North American fish species. He has registered copyrights on forty-one fish
illustrations, which he makes available for reproduction by purchase and download from his
website, www.americanfishes.com.
Defendant MEDL Mobile, Inc., is a California corporation that develops software
applications (“apps”) for smart phones and other mobile devices. Its only office is in Fountain
Valley, California; it does not have a local agent or bank account or own any property in the
state of Kansas; and its employees have never traveled to Kansas for business purposes. MEDL
does, however, maintain a website which is accessible to users worldwide. That website presents
information about MEDL and its products and contains hyperlinks to the online stores of thirdparty app providers, like iTunes and Google Play, where MEDL’s apps are offered for sale.
In late 2009, Connecticut resident Jason Siniscalchi, a co-defendant in this case,
approached MEDL with an idea for an app that would catalogue information about various fish
species located in the United States. MEDL agreed to develop and launch the app with Mr.
Siniscalchi’s help. The result of this partnership was “FishID,” a mobile app billed as “a flexible
tackle box of tools for identifying any catch, finding fishing spots, [and] reading up on local
regulations.”8 FishID provides detailed profiles of each fish species as well as range maps
allowing users to identify species that can be found in particular locations, including bodies of
water within the state of Kansas. The app also links to each state’s fishing regulations.
Mr. Siniscalchi supplied MEDL with the pictures used in the app’s fish species profiles.
Plaintiff alleges that some of those pictures are direct copies of Plaintiff’s copyrighted fish
8
Doc. 1 ¶ 14; Doc. 42-6.
3
illustrations and that Mr. Siniscalchi and MEDL incorporated those illustrations into the app
without Plaintiff’s permission, thus violating Plaintiff’s copyrights. According to the affidavit of
MEDL’s CEO Andrew Maltin, Mr. Siniscalchi indicated to MEDL during the app’s
development phase that the fish species illustrations came “almost exclusively from government
websites (i.e., the public domain).”9 Thus, Mr. Maltin declares, MEDL was unaware during the
development and launch of the FishID app that any of the pictures supplied by Mr. Siniscalchi
was a copyrighted work.
MEDL became aware of “potential copyright issues” in February 2012, when Plaintiff’s
attorney sent a letter informing MEDL that some pictures displayed on its website and featured
in its FishID app infringed on Plaintiff’s copyrights. The letter demanded that MEDL cease and
desist from further distribution of the cited pictures. MEDL did not respond to the letter, but Mr.
Maltin declares that the company undertook to “fix this issue and remove the alleged infringing
FishID app from the iTunes store.”10 That effort proved unsuccessful: Mr. Maltin states that
Apple, “for some reason,” rejected a new build of the FishID app which MEDL had created to
replace the former version, and the app containing allegedly infringing illustrations thus
remained available for purchase and download from iTunes.11 Mr. Maltin explains that after
MEDL attempted to upload the new build, “other projects took precedence, and MEDL moved
onto those other projects. MEDL simply lost track of this issue and w[as] not aware that the new
9
Doc. 36-1 ¶ 12.
10
Id. ¶ 14. MEDL did not offer the app for sale through any app provider other than iTunes.
11
Doc. 36 at 11; Doc. 36-1 ¶ 14.
4
build was not properly uploaded until MEDL was served with the complaint” in this case.12
Plaintiff does not allege that the FishID app has ever been purchased or used by a person
located in Kansas. He argues, however, that specific jurisdiction exists in this case based on
MEDL’s efforts in developing and marketing the FishID app. In addition, Plaintiff submits a
sealed exhibit tabulating the number of times MEDL’s “other products” have been installed on
mobile devices in each state. That spreadsheet shows that users in Kansas have installed
MEDL’s apps on at least 6,663 occasions—a showing, Plaintiff contends, sufficient to establish
general personal jurisdiction over MEDL. MEDL argues that neither specific nor general
jurisdiction exists here and requests the Court to dismiss Plaintiff’s claims for lack of personal
jurisdiction or, in the alternative, to transfer the case to the Central District of California.
III.
Discussion
“Before a federal court can exercise personal jurisdiction over a defendant in a federal
question case, the court must determine (1) whether the applicable statute potentially confers
jurisdiction by authorizing service of process on the defendant, and (2) whether the exercise of
jurisdiction comports with due process.”13 Because the Copyright Act, under which Plaintiff
brings this action, does not provide for nationwide service of process, Plaintiff must show that
MEDL is amenable to service of process under Kansas’ long-arm statute, K.S.A. 60-308(b).14
That long-arm statute is coextensive with the constitutional limitations imposed by the due
12
Doc. 36-1 ¶ 14.
13
Rainy Day Books, Inc. v. Rainy Day Books & Café, LLC, 186 F. Supp. 2d 1158, 1160–61 (D. Kan. 2002)
(citing Peay v. BellSouth Med. Assistance Plan, 205 F.3d 1206, 1209 (10th Cir. 2000)).
14
Fed. R. Civ. P. 4(k)(1)(A).
5
process clause.15 Thus, the long-arm statute inquiry and the due process inquiry merge, and the
determinative question becomes whether the exercise of jurisdiction in this case comports with
due process.16
“The Due Process Clause secures an individual’s liberty interest in not being subject to
the binding judgments of a forum with which he has established no meaningful ‘contacts, ties, or
relations.’ ”17 A court may therefore exercise personal jurisdiction over a nonresident defendant
only if the defendant has “minimum contacts” with the forum state.18 “Such contacts may give
rise to personal jurisdiction over a non-resident defendant either generally, for any lawsuit, or
specifically, solely for lawsuits arising out of particular forum-related activities.”19
Here, as noted, Plaintiff contends the Court may exercise both general and specific
jurisdiction over MEDL.
A.
General Jurisdiction
General jurisdiction permits a court to exercise power over a corporate defendant in
“instances in which the [defendant’s] continuous corporate operations within a state are so
substantial and of such a nature as to justify suit against it on causes of action arising from
dealings entirely distinct from those activities.”20 Prior to the Supreme Court’s recent decisions
15
Volt Delta Resources, Inc. v. Devine, 740 P.2d 1089, 1092 (Kan. 1987).
16
See OMI Holdings, Inc. v. Royal Ins. Co. of Can., 149 F.3d 1086, 1090 (10th Cir. 1998).
17
Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72 (1985)).
18
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980).
19
Shrader v. Biddinger, 633 F.3d 1235, 1239 (10th Cir. 2011).
20
Goodyear Dunlop Tires Ops., S.A. v. Brown, 131 S. Ct. 2846, 2853 (2011) (citing Int’l Shoe Co. v.
Washington, 326 U.S. 310, 318 (1945)).
6
in Goodyear Dunlop Tires Operations, S.A. v. Brown21and Daimler AG v. Bauman,22 Tenth
Circuit case law suggested that general jurisdiction exists so long as a defendant’s forum-related
contacts are “continuous and systematic.”23 In Goodyear and Daimler AG, however, the
Supreme Court clarified that even “substantial, continuous, and systematic” forum-related
contacts are insufficient to confer general jurisdiction; rather, the defendant’s contacts with the
forum must be “so ‘continuous and systematic’ as to render [it] essentially at home in the forum
State.”24 For a corporate defendant, paradigmatic bases for the exercise of general jurisdiction
include the defendant’s place of incorporation and principal place of business.25 General
jurisdiction in a forum other than the defendant’s place of incorporation or principal place of
business will exist only in “exceptional case[s]” where the defendant’s operations in the forum
are “so substantial and of such a nature as to render the corporation at home in that State.”26
The Tenth Circuit has established four factors to consider in deciding whether a
corporation is “at home” in the forum state:
21
131 S. Ct. 2846 (2011).
22
134 S. Ct. 746 (2014).
23
See, e.g., Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1078 (10th Cir. 2008) (“General
jurisdiction is based on an out-of-state defendant’s ‘continuous and systematic’ contacts with the forum state.”
(citation omitted)); Trujillo v. Williams, 465 F.3d 1210, 1218 n.7 (10th Cir. 2006) (“The minimum contacts standard
is also satisfied, and a court may maintain general jurisdiction over a nonresident defendant, based on the
defendant’s ‘continuous and systematic’ general business contacts with the forum state.” (citing Helicopteros
Nacionales v. Hall, 466 U.S. 408, 415 (1984))); see also Shrader, 633 F.3d at 1243 (“A web site will subject a
defendant to general personal jurisdiction only when the defendant has actually and deliberately used its website to
conduct commercial transactions on a sustained basis with a substantial number of residents of the forum.” (citation
omitted)).
24
Daimler AG, 134 S. Ct. at 761 (quoting Goodyear, 131 S. Ct. at 2851) (emphasis added); see also
Fireman’s Fund Ins. Co. v. Thyssen Mining Constr. of Can., Ltd., 703 F.3d 488, 493 (10th Cir. 2012) (quoting
Goodyear, 131 S. Ct. at 2851).
25
Id. at 760 (quoting Goodyear, 131 S. Ct. at 2853–54).
26
Id. at 761 n.19.
7
(1) whether the corporation solicits business in the state through a
local office or agents; (2) whether the corporation sends agents
into the state on a regular basis to solicit business; (3) the extent to
which the corporation holds itself out as doing business in the
forum state, through advertisements, listings or bank accounts; and
(4) the volume of business conducted in the state by the
corporation.27
Here, it is uncontroverted that MEDL does not have an office or agent in Kansas, has never sent
an agent into the state for business purposes, and does not directly advertise or maintain bank
accounts within the state. The first three factors therefore weigh against the Court’s exercise of
general jurisdiction over MEDL. Nevertheless, Plaintiff contends that the volume of business
MEDL has conducted with Kansas residents warrants the Court’s exercise of general
jurisdiction.
Plaintiff first refers the Court to a spreadsheet he obtained through jurisdictional
discovery, filed under seal as Exhibit F, showing that users in Kansas have installed MEDL’s
apps onto mobile devices on at least 6,663 occasions.28 In Plaintiff’s view, these “several
thousand transactions” are substantial and continuous enough to confer general jurisdiction over
MEDL. The Court disagrees. While thousands of sales to users in a particular state might in
some circumstances suffice to establish general jurisdiction, the volume of a corporate
defendant’s forum-related transactions must be analyzed in the context of its sales operations as
a whole.29 For a global corporation with a high transaction volume, for example, several
thousand forum-related transactions might represent only a small fraction of its overall business,
27
Grynberg v. Ivanhoe Energy, Inc., 490 F. App’x 86, 95 (10th Cir. 2012) (quoting Kuenzle v. HTM SportUnd Freizeitgerate AG, 102 F.3d 453, 457 (10th Cir. 1996)).
28
Doc. 48-1 at 185.
29
See Daimler AG, 134 S. Ct. at 762 n.20 (“[T]he general jurisdiction inquiry does not focus solely on the
magnitude of the defendant’s in-state contacts. General jurisdiction instead calls for an appraisal of a corporation’s
activities in their entirety, nationwide and worldwide.” (internal quotation marks and citation omitted)).
8
belying the argument that the defendant is “essentially at home” in the forum state.30 That
appears to be the case here: Exhibit F shows that MEDL’s 6,663 Kansas-based app installations
account for only 1.2% of app installations in the United States and .5% of installations
worldwide.31 Such modest sales activity has been held insufficient to establish continuous and
systematic contacts,32 and does not make this the “exceptional case” where MEDL is at home in
Kansas despite being domiciled and maintaining its principal place of business elsewhere.33
Plaintiff also asserts that MEDL does more business in Kansas than Exhibit F indicates
because MEDL “actively partners with other Kansas companies that are registered to do business
in the State of Kansas.”34 In support of this position, Plaintiff cites an investor presentation in
30
See id. (“A corporation that operates in many places can scarcely be deemed at home in all of them.
Otherwise, ‘at home’ would be synonymous with ‘doing business’ tests framed before specific jurisdiction evolved
in the United States.” (citation omitted)).
31
See Doc. 48-1 at 164–216. Plaintiff contends Exhibit F shows that 7.5% of worldwide app installations
occurred in Kansas, while MEDL argues that Kansas installations account for only .005% of global downloads.
Both percentages are incorrect. MEDL’s mistake appears to result from simple failure to accurately express the
decimal fraction of Kansas installations to global installations (.005) in percentage format. Plaintiff, on the other
hand, miscalculates the number of installations that occurred altogether. He appears to mistake a number displayed
at the end of the spreadsheet—88,171—for a total of the number of app installations that occurred worldwide. Id. at
216. It is unclear what function that number serves, as it is unaccompanied by the descriptive information attached
to all other entries in the spreadsheet. But it is clear that the number does not represent the total number of app
installations that actually occurred: manual summation of the installation figures listed in the spreadsheet shows that
the number of worldwide app installations exceeded 1.27 million. See id. at 164-216. The 6,663 app installations in
Kansas, therefore, represent only about .5% of app installations worldwide. Moreover, Plaintiff does not specify
how many of these 6,663 app installations in Kansas were of the FishID app, and how many were for other apps
developed by MEDL.
32
See Macedo v. Green Valley Chem. Corp., No. 11-2666 EFM, 2013 WL 1776666, at *5 (D. Kan. Apr. 25,
2013) (finding a lack of general jurisdiction in part because the defendant’s Kansas sales, at less than three percent
of the defendant’s overall sales, did not represent a significant volume of business); Hydro Eng’g v. Landa, Inc., 231
F. Supp. 2d 1130, 1133–34 (D. Utah 2002) (declining to exercise general jurisdiction where the nonresident
defendant’s sales to Utah customers amounted to 1.85% of the defendant’s national sales); L.H. Carbide Corp. v.
Piece Maker Co., 852 F. Supp. 1425, 1435–36 (N.D. Ind. 1994) (refusing to exercise general jurisdiction where sales
in the forum state accounted for eight percent of the defendant’s total nationwide sales).
33
See Daimler AG, 134 S. Ct. at 761 n.19.
34
Doc. 42 at 7.
9
which MEDL states that it has licensed its technology and provided services to companies like
Taco Bell and The New York Times; Plaintiff then submits documents from the Kansas Business
Center’s website ostensibly showing that those companies are registered to do business in
Kansas.35 But this evidence does not demonstrate how MEDL’s contacts with its so-called
“partner” companies touch on the state of Kansas at all, much less that those contacts are so
extensive as to render MEDL at home in the forum. MEDL does not itself do business in Kansas
by merely providing services for corporations registered to do business in the state.36 Moreover,
even if the Court were to impute the contacts of its “partner” companies to MEDL in this case,37
Plaintiff makes no showing that those companies are themselves subject to general personal
jurisdiction in Kansas.
The Court finds that all four general-jurisdiction factors weigh against exercising general
jurisdiction in this case. Because Plaintiff has not met his burden of demonstrating that MEDL’s
contacts with Kansas are “so ‘continuous and systematic’ as to render [it] essentially at home in”
this state,38 the Court may not exercise general personal jurisdiction over MEDL.
B.
Specific Jurisdiction
35
Doc. 42-5 at 13; Doc. 42-9.
36
See, e.g., Schwarzeneggar v. Fred Martin Motor Co., 374 F.3d 797, 801 (9th Cir. 2004) (finding general
jurisdiction lacking even though the defendant regularly retained the services of a forum-based marketing company
and hired a sales training company incorporated in the forum for consulting services); Bancroft & Masters, Inc. v.
Augusta Nat’l Inc., 223 F.3d 1082, 1086 (9th Cir. 2000) (declining to exercise general jurisdiction over a defendant
which had license agreements with several forum-based companies “because engaging in commerce with residents
of the forum state is not in and of itself the kind of activity that approximates physical presence within the state’s
borders.”).
37
See, e.g., Bauman v. DaimlerChrysler Corp., 644 F.3d 909, 920 (9th Cir. 2011) (finding that the contacts
of a subsidiary may be attributed to its foreign parent company under certain circumstances).
38
See Daimler AG v. Bauman, 134 S. Ct. 746, 761 (2014) (quoting Goodyear Dunlop Tires Operations.,
S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011)).
10
Alternatively, Plaintiff argues that the Court has specific personal jurisdiction over
MEDL based on its efforts in developing and marketing the FishID app. To establish specific
jurisdiction, Plaintiff must show (1) that MEDL purposefully directed activities at the state of
Kansas and (2) that Plaintiff’s injuries arise out of MEDL’s forum-related activities.39 If
Plaintiff succeeds in satisfying both of these prongs, the burden then shifts to MEDL to show
that the exercise of jurisdiction would be unreasonable.40
1.
Purposeful Direction
Plaintiff’s briefing suggests three potential bases for satisfying the purposeful-direction
prong: (a) MEDL’s commission of an intentional tort against Plaintiff, (b) MEDL’s operation of
a website which actively marketed the FishID app to Kansas residents, and (c) MEDL’s
development of a mobile app with Kansas-specific features. The Court will address each of
these bases separately.
a. Commission of an Intentional Tort
Plaintiff first contends that MEDL purposefully directed activities at Kansas by
knowingly infringing Plaintiff’s copyrights, thus committing an intentional tort against a Kansas
resident. In the intentional tort context, courts in the Tenth Circuit apply the “effects test” set
forth in Dudnikov v. Chalk & Vermilion Fine Arts, Inc.41 That test, derived from the Supreme
Court’s decision in Calder v. Jones,42 allows the plaintiff to establish purposeful direction by
39
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984).
40
Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1069 (10th Cir. 2008); Schwarzenegger,
374 F.3d at 802; Mellon Bank (East) PFSF, Nat’l Assoc. v. Farino, 960 F.2d 1217, 1221 (3d Cir. 1992).
41
514 F.3d 1063 (10th Cir. 2008).
42
465 U.S. 783, 789–90 (1984).
11
showing that the defendant took (a) an intentional action, that was (b) expressly aimed at the
forum state, with (c) knowledge that the brunt of the injury would be felt in the forum state.43
The Court notes at the outset a material distinction between the tort of copyright
infringement and the intentional torts to which the Calder “effects test” has traditionally applied.
To prove copyright infringement, Plaintiff need not show that MEDL intended to infringe a
copyright, but only that MEDL in fact copied a protected work.44 Copyright infringement, in
other words, is a strict-liability tort, not an intentional tort.45 As such, it is difficult to see how
unintentional copyright infringement could satisfy the third prong of Calder’s effects test: a
defendant can scarcely be deemed to have acted “with knowledge that the brunt of the injury
would be felt in the forum state” where the defendant did not intend to cause injury in the forum
state—or anywhere else—at all.46 Indeed, courts in the Tenth Circuit and a majority of those
elsewhere have found the effects test satisfied only where allegations suggest that the defendant
intended to cause injury, or at least intended to cause consequences that the defendant knew
would lead to injury, in the forum state.47 Accordingly, and of particular importance in this case,
43
Dudnikov, 514 F.3d at 1072.
44
See La Resolana Architects, PA v. Reno, Inc., 555 F.3d 1171, 1177 (10th Cir. 2009).
45
Ford Motor Co. v. Summit Motor Prods., 930 F.2d 277, 299 (3d Cir. 1991); UMG Recordings, Inc. v.
Disco Azteca Distribs., Inc., 446 F. Supp. 2d 1164, 1172 (E.D. Cal. 2006) (citing Educ. Testing Serv. v. Simon, 95 F.
Supp. 2d 1081, 1078 (C.D. Cal. 1999)); CoStar Grp., Inc. v. LoopNet, Inc., 106 F. Supp. 2d 780, 787 (D. Md. 2000);
see also William F. Patry, Patry on Copyright § 17:167 (2015) (“The tort of copyright infringement . . . has, from its
inception, been regarded as a strict liability tort.”).
46
See Grynberg v. Ivanhoe Energy, Inc., 490 F. App’x 86, 99 (10th Cir. 2012) (noting that the third prong of
the effects test is not satisfied merely because the defendant could have foreseen that the brunt of the injury caused
by the defendant’s conduct would have been felt in the forum state).
47
See, e.g., Calder, 465 U.S. at 789–90 (finding the effects test satisfied where the plaintiff alleged libel,
invasion of privacy, and intentional infliction of emotional harm); Dudnikov, 514 F.3d at 1072–73 (holding the
effects test satisfied where the plaintiffs adequately alleged tortious interference with the plaintiffs’ business);
Holland Am. Line Inc. v. Wartsila N. Am., Inc., 485 F.3d 450, 460 (9th Cir. 2007) (“[I]t is well established that the
12
several courts and at least one commentator have opined that allegations of copyright
infringement cannot satisfy the effects test absent some evidence that the alleged infringement
was intentional.48
Here, the uncontroverted declarations in Mr. Maltin’s affidavit show that MEDL was
unaware of Plaintiff’s copyrights during the FishID app’s development phase.49 MEDL’s
intentional acts in developing and launching the app, therefore, were necessarily taken without
knowledge that the brunt of any copyright injury would be felt by Plaintiff in the state of Kansas.
Plaintiff argues, however, that his February 2012 cease and desist letter placed MEDL on notice
of Plaintiff’s copyrights in the FishID app pictures. He contends that MEDL’s continuing to sell
the infringing version of the app after receiving the letter constitutes intentional copyright
infringement.
The Court agrees that the cease and desist letter placed MEDL on notice that the brunt of
the alleged copyright infringement would be felt by Plaintiff in Kansas: the registration
certificates attached to the cease and desist letter notified MEDL that Plaintiff was a Kansas
Calder test applies only to intentional torts, not to the breach of contract and negligence claims presented here.”);
Global Ground Support, LLC v. All Test & Inspection, Inc., Nos. 07-0491, 06-1481, 2007 WL 2916189, at *4 n.3
(E.D. Pa. Oct. 5, 2007) (reviewing Third Circuit cases and concluding that “since plaintiff does not assert that
defendant committed an intentional tort, the effects test is inapplicable here”). Only courts in the Fifth Circuit have
held that the effects test may be satisfied where the plaintiff alleges an unintentional tort. See Guidry v. U.S.
Tobacco Co., 188 F.3d 619, 629 (5th Cir. 1999). Notably, Guidry found that the third prong of the effects test could
be met “even when the defendant did not intend to cause the particular effect in the state but could reasonably have
foreseen it would result,” id. (emphasis added)—a proposition the Tenth Circuit has rejected. Grynberg, 490 F.
App’x at 99.
48
See, e.g., Parker v. Dufresne, No. 09-cv-1859, 2010 WL 2671578, at *9 (W.D. La. May 18, 2010);
CoStar, 106 F. Supp. 2d at 786–87; Figi Graphics, Inc. v. Dollar Gen’l Corp., 33 F. Supp. 2d 1263, 1267 (S.D. Cal.
1998); William F. Patry, Patry on Copyright § 17:167 (2015).
49
Doc. 36-1 ¶ 12.
13
resident,50 and the letter itself stated that MEDL’s continuing to sell the app would result in
further violation of Plaintiff’s copyrights. The relevant question under Calder thus becomes
whether Plaintiff can satisfy the first two prongs of the effects test—that is, whether, after
receiving the cease and desist letter, MEDL took (a) an intentional action (b) expressly aimed at
Kansas. The Court assumes for the sake of argument that MEDL’s failure to replace the
allegedly infringing version of the app and its continuing to offer the app for sale through the
iTunes store constitute “intentional act[s]” sufficient to satisfy the test’s first prong. But
Calder’s second prong—requiring that MEDL “expressly aimed” the intentional act at
Kansas—is not met by merely showing that MEDL committed an intentional tort against a
person it knew to be a resident of this state.51 As the Supreme Court recently held, “the plaintiff
cannot be the only link between the defendant and the forum.”52 The purposeful-direction
analysis, in other words, “looks to the defendant’s contacts with the forum State itself, not the
defendant’s contacts with persons who reside there.”53
None of MEDL’s intentional actions after receiving the cease and desist letter were
expressly aimed at the state of Kansas. MEDL’s continuing to sell the FishID app after
receiving the letter may have rendered a Kansas resident the victim of an intentional tort, but that
act standing alone does not create a jurisdictionally relevant contact between MEDL and the
50
Doc. 36 at 10.
51
See Walden v. Fiore, 134 S. Ct. 1115, 1125–26 (2014) (finding Nevada courts lacked specific jurisdiction
over the defendant even though he allegedly committed an intentional tort against a person he knew resided in
Nevada).
52
Id. at 1122.
53
Id.
14
state of Kansas itself.54 And the record does not suggest that MEDL took any other intentional
action aimed at Kansas after becoming aware of Plaintiff’s alleged copyrights.55 Plaintiff does
not allege, for example, that MEDL sold any copies of the FishID app to Kansas residents. He
does not contend that MEDL advertised the app in Kansas after receiving the cease and desist
letter. Nor is there any indication that MEDL’s continuing to offer the app for sale was directed
at an audience that would inherently include a substantial number of Kansas residents.56 Absent
such a showing, Plaintiff has not established that MEDL expressly aimed tortious activity at
Kansas with knowledge that the brunt of the injury would be felt in this state. The Court,
therefore, may not exercise specific jurisdiction over MEDL on the basis of the intentional
copyright infringement alleged here.
b. MEDL’s Website
Plaintiff next argues that MEDL purposefully directed commercial activity at Kansas
residents through its website, which “actively solicit[ed] residents to purchase” the FishID app.57
He contends this website meets the test for internet-based purposeful direction announced by the
Tenth Circuit in Shrader v. Biddinger.58
54
See id. at 1122, 1125–26.
55
MEDL’s incorporation of the Kansas-specific features into the FishID app occurred before MEDL
received the cease and desist letter, and thus before MEDL became aware that the brunt of the alleged copyright
injury would be felt by Plaintiff in Kansas. The Court will consider the jurisdictional impact of the app’s statespecific features in subsection c., infra.
56
See Shrader v. Biddinger, 633 F.3d 1235, 1245 (10th Cir. 2011) (finding that a defamatory blog post did
not support the court’s exercise of specific jurisdiction because the post was not “directed at an audience that would
inherently have included a substantial number of forum state residents and businesses”).
57
Doc. 42 at 8.
58
633 F.3d 1235 (10th Cir. 2011).
15
The Shrader court held that a defendant’s website cannot subject the defendant to
personal jurisdiction simply because residents of the forum state have access to the website.59 In
the internet context, the court noted, the personal-jurisdiction analysis should “plac[e] emphasis
on the internet user or site intentionally directing his/her/its activity or operation at the forum
state rather than just having the activity or operation accessible there.”60 The court thus
approved the Fourth Circuit’s test for internet-based purposeful direction:
[A] state may, consistent with due process, exercise judicial power
over a person outside of the State when that person (1) directs
electronic activity into the State, (2) with the manifested intent of
engaging in business or other interactions within the State, and (3)
that activity creates, in a person within the State, a potential cause
of action cognizable in the State’s courts. Under this standard, a
person who simply places information on the Internet does not
subject himself to jurisdiction in each State into which the
electronic signal is transmitted and received. Such passive Internet
activity does not generally include directing electronic activity into
the State with the manifested intent of engaging business or other
interactions in the State thus creating in a person within the State a
potential cause of action cognizable in courts located in the State.61
Applying this test to the facts at hand, the Court finds that MEDL did not purposefully
direct FishID-related activity at Kansas through operation of its website. With respect to the first
prong, Plaintiff does not specify how MEDL directed electronic activity into Kansas. MEDL
makes no sales through its website. Plaintiff does not allege that MEDL has ever engaged in
communications or other interactions with Kansas users through the website. And to the extent
59
Id. at 1241.
60
Id. at 1240 (emphasis in original).
61
Id. at 1240–41 (quoting ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 714 (4th Cir.
2002)) (emphasis in original).
16
MEDL, by providing hyperlinks to the stores of third-party app providers, can be deemed to
have directed electronic activity into all states from which customers click on those links,
Plaintiff does not allege that any customer in Kansas has ever done so. In fact, Plaintiff does not
contend that any Kansas resident has purchased a copy of the FishID app at all.
Perhaps Plaintiff assumes that the mere visibility of MEDL’s website in Kansas satisfies
Shrader’s “direct[ing] electronic activity” requirement.62 Such an assumption appears
inconsistent with the test’s purpose of excluding the operation of passive websites from the
scope of purposefully-directed activity.63 But even if the Court were to deem Shrader’s first
prong satisfied based on the website’s visibility in this state, the information posted on the
website fails to meet Shrader’s second prong. Nothing visible on the website itself manifests an
intent to do business in Kansas. The screenshots Plaintiff submits portraying pages of MEDL’s
website contain no marketing information directed toward Kansas users in particular. Further,
MEDL’s provision of information about its products and where and how to purchase them does
not demonstrate an intent to do business in every state where that information is viewable.64
Thus, this Court and several others have held that a defendant’s posting of a hyperlink to the
website of a third party through which users can engage in commercial transactions does not,
62
See GoFit LLC v. GoFit LLC, No. 12-CV-622-JED-FHM, 2013 WL 1566908, at *4 (N.D. Okla. 2013)
(questioning whether “the mere visibility of [a] website in Oklahoma” is sufficient to satisfy the first prong of the
Shrader test for internet-based specific jurisdiction).
63
See Shrader, 633 F.3d at 1240–41.
64
See Bensusan Rest. Corp. v. King, 937 F. Supp. 295, 297, 301 (S.D.N.Y. 1996) (finding that a jazz club
owner did not purposefully direct activities at the state of New York by maintaining a general-access website
containing general information about the club, a calendar of events, and ticketing information, including a telephone
number for charge-by-phone ticket orders).
17
without more, suffice to establish purposeful direction on the part of the defendant.65
Plaintiff has not shown that MEDL, through its website, has purposefully directed
electronic activity into Kansas under the test announced in Shrader. The Court may not exercise
specific jurisdiction over MEDL on this basis.
c. The FishID App’s State-Specific Features
Plaintiff finally argues that MEDL purposefully directed activity at Kansas by
incorporating state-specific features into the FishID app. In particular, Plaintiff alleges that the
app displays maps that “tag” lakes and rivers located in Kansas, provides range maps allowing
users to identify fish species that can be found in certain bodies of water within Kansas, and
links to the fishing regulations of each state, including those of Kansas.66 Plaintiff thus contends
the design of the FishID app itself manifests MEDL’s intent to create and exploit a market for
the app within this state, thereby forming a sufficient basis for the Court’s exercise of specific
jurisdiction over MEDL.
The Court agrees that MEDL’s incorporation of Kansas-specific features into the app
constitutes activity purposefully directed toward this state. The Supreme Court has twice
explicitly recognized that a product’s state-specific design may indicate purposeful direction on
the part of the product’s maker.67 First, in Asahi, Justice O’Connor wrote for a plurality of the
65
See Advisors Excel, LLC v. Senior Advisory Grp., LLC, 2011 WL 3489884, at *4, *7 (D. Kan. Aug. 10,
2011) (finding that the defendant’s website did not establish purposeful direction by providing hyperlinks through
which users could gain instant approval for insurance policies); see also, e.g., Celorio v. Google Inc., 872 F. Supp.
2d 1327, 1333 (N.D. Fla. 2012); Dynetech Corp. v. Leonard Fitness, Inc., 523 F. Supp. 2d 1344, 1348 (M.D. Fla.
2007).
66
See Doc. 42 at 8; Doc. 42-1 ¶¶ 4–6, 9.
67
J. McIntyre Mach., Ltd. v. Nicastro, 131 S. Ct. 2780, 2792 (2011) (Breyer, J., concurring in the judgment);
Asahi Metal Indus. Co., Ltd. v. Superior Court of Calif., Solano Cnty., 480 U.S. 102, 112 (1987).
18
Court that the placement of a product into the “stream of commerce” may constitute purposeful
direction where additional conduct “indicate[s] an intent or purpose to serve the market in the
forum State, for example, designing the product for the market in the forum State.”68 Then later,
in J. McIntyre, Justice Breyer issued an opinion concurring in the judgment which, under the
Marks doctrine, became the controlling decision of the Court;69 that opinion observed that
“special state-related design” can subject the manufacturer of a product to specific jurisdiction in
the forum.70 Neither of the products at issue in Asahi and J. McIntyre were designed for the
market in the forum state.71 Here, by contrast, MEDL’s FishID app contains Kansas-related
regulatory and wildlife information that can make the fishing experience more convenient and
enjoyable for Kansas users. Those features evidence MEDL’s intent to create demand for the
app within Kansas and, thus, to increase sales by serving the market in this state.72
MEDL points out that the state-specific features Plaintiff alludes to are available not only
for Kansas but also for all other states in the country. In so doing, MEDL appears to argue that
68
Asahi, 480 U.S. at 112.
69
See Marks v. United States, 430 U.S. 188, 193 (1977) (“When a fragmented Court decides a case and no
single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as
that position taken by those Members who concurred in the judgments on the narrowest grounds.”) (internal
quotation marks omitted); UTC Fire & Sec. Americas Corp. v. NCS Power, Inc., 844 F. Supp. 2d 366, 376 (S.D.N.Y.
2012) (recognizing Justice Breyer’s concurrence in the judgment as the controlling decision in J. McIntyre under the
Marks doctrine).
70
J. McIntyre, 131 S. Ct. at 2792.
71
Id. (concluding the metal-shearing machine at issue involved “no special state-related design”); Asahi, 480
U.S. at 112 (finding no evidence the defendant designed its tire valve stems in anticipation of sales in California).
72
See Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1078 (10th Cir. 2008) (recognizing
that specific jurisdiction “is premised on something of a quid pro quo: in exchange for ‘benefitting’ from some
purposive conduct directed at the forum state, a party is deemed to consent to the exercise of jurisdiction for claims
related to those contacts”).
19
because it did not design the app solely for use in Kansas, it did not specifically target Kansas
users. This argument misunderstands the purposeful-direction analysis. It is not necessary to a
finding of purposeful direction that a defendant be found to have singled out the forum state as
its sole focus of commercial activity.73 Rather, a defendant may find it beneficial to direct
particular business activities at several states, or even at all fifty states, simultaneously; and
where defendants have chosen to do so, courts have observed that purposeful direction exists in
all states whose markets the defendants have purposefully endeavored to serve.74
MEDL nevertheless argues the Tenth Circuit’s decision in Shrader is to the contrary. In
that case, the court considered whether a user of an online market-trader discussion forum
purposefully directed a defamatory post at the state of Oklahoma.75 The forum where the
defendant published the post had no particular connection with Oklahoma, and nothing about the
content of the post or the nature of the plaintiff’s work showed any tie to the state.76 Instead, the
post appeared to be aimed at a worldwide audience of market traders, wherever located.77
Because of the “geographically-neutral content” of the post and the “geographically-neutral
nature of the forum” where it was published, the Tenth Circuit found the defendant did not
73
See, e.g., Mrs. U.S. Nat’l Pageant, Inc. v. Miss U.S. of Am. Org., LLC, 875 F. Supp. 2d 211, 222
(W.D.N.Y. 2012).
74
See, e.g., id.; Dedvukaj v. Maloney, 447 F. Supp. 2d 813, 820 (E.D. Mich. 2005); Coremetrics, Inc. v.
Atomic Park.com, LLC, 370 F. Supp. 2d 1013, 1022 (N.D. Cal. 2005).
75
Shrader v. Biddinger, 633 F.3d 1235, 1244–46 (10th Cir. 2011).
76
Id. at 1244.
77
Id. at 1246.
20
purposefully direct his message at Oklahoma.78 MEDL contends that the FishID app at issue in
this case is likewise “geographically neutral”: its state-specific features are available to users in
all fifty states. In MEDL’s view, so long as it directs its business activities at all states equally,
Shrader’s emphasis on geographic neutrality effectively bars the exercise of specific jurisdiction
over MEDL in any state in this circuit.
The Court reads Shrader differently. The defendant in that case made no effort to
transmit or tailor his message to users in any state in particular, and the post had no inherent
nexus to any geographic location. The defendant’s actions were “geographically neutral,”
therefore, in the sense that they reflected no state-specific or geo-specific efforts at all.79 In this
case, by contrast, MEDL targeted each state in particular by designing an app with geographic
and regulatory content unique to each state.80 Nothing in Shrader suggests that such tailored
efforts to exploit the individual markets in each state fail the purposeful-direction test simply
because they are aimed at each state equally. As MEDL’s design of the FishID app involved
state-specific targeting, that activity cannot be considered “geographically neutral” as the Tenth
Circuit employed that term in Shrader.81
MEDL’s incorporation of state-specific features into its FishID app reflects an effort to
78
Id. at 1245–46.
79
See id.; see also J. McIntyre Mach., Ltd. v. Nicastro, 131 S. Ct. 2780, 2792 (2011) (Breyer, J., concurring
in the judgment) (finding purposeful availment lacking because the British defendant, which permitted its American
distributor to sell the defendant’s machines “to anyone in America willing to buy them,” made “no specific effort . . .
to sell in New Jersey”).
80
Cf. J. McIntyre, 131 S. Ct. at 2792 (“Here, the relevant facts found by the New Jersey Supreme Court
show no . . . ‘something more,’ such as special state-related design.”) (Breyer, J., concurring in the judgment).
81
See Shrader, 633 F.3d at 1244–45.
21
create demand for the app within the markets of each state, including Kansas. Thus, the Court
finds that the app’s “special state-related design”82 suffices to satisfy the “purposeful direction”
requirement for the exercise of specific jurisdiction in this state.
2.
Nexus
Having determined that MEDL purposefully directed activities at the state of Kansas, the
Court must now consider whether Plaintiff’s alleged injuries “arise out of” MEDL’s forumrelated contacts.83 Courts have generally followed one of three approaches in analyzing this
“nexus” requirement: (1) proximate causation, (2) but-for causation, or (3) substantial
connection.84 The Tenth Circuit has rejected the substantial-connection approach outright.85
Between the two causation-based approaches, however, the Tenth Circuit has yet to “pick
sides.”86 “Under the [but-for causation] approach, any event in the causal chain leading to the
plaintiff’s injury is sufficiently related to the claim to support the exercise of specific
jurisdiction. The [proximate causation] approach, by contrast, is considerably more restrictive
and calls for courts to examin[e] whether any of the defendant’s contacts with the forum are
relevant to the merits of the plaintiff’s claim.”87 As explained below, the Court need not decide
here which of these approaches is more appropriate, as Plaintiff has failed to demonstrate the
82
J. McIntyre, 131 S. Ct. at 2792.
83
Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1078 (10th Cir. 2008).
84
Id. at 1078–80.
85
Id. at 1078.
86
See id. at 1078–79; see also Newsome v. Gallacher, 722 F.3d 1257, 1269–70 (10th Cir. 2013); Emp’rs.
Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1160–61 (10th Cir. 2010).
87
Dudnikov, 514 F.3d at 1078.
22
requisite nexus under either approach.
The alleged injuries forming the basis of Plaintiff’s claims consist of an unspecified
number of incidents of copyright infringement, committed in violation of the Copyright Act, 17
U.S.C. § 101, et seq. Under the Copyright Act, copyright infringement occurs when anyone
“violates the exclusive rights of the copyright holder,”88 including the rights to reproduce and
distribute copyrighted works.89 In this case, Plaintiff alleges that MEDL injured him by
incorporating his copyrighted illustrations into the FishID app’s fish profiles (reproduction) and
by selling copies of the app to the public (distribution).
Plaintiff bears the burden of showing that these alleged injuries arise out of MEDL’s
contacts with the state of Kansas.90 Despite this burden, however, Plaintiff’s briefing fails to
address the nexus issue at all. The Court is left to speculate how MEDL’s only jurisdictionallyrelevant contact with Kansas—its incorporation of state-specific features into the FishID app’s
design91—might have given rise to Plaintiff’s cause of action for copyright infringement. On the
facts presented in the record, the Court is unable to find the causal connection required.
Under the but-for causation approach, Plaintiff must show that the alleged copyright
infringement would not have occurred except for MEDL’s incorporation of Kansas-specific
features into the FishID app. Plaintiff has not made that showing. First, the app’s Kansas-
88
17 U.S.C. § 501(a).
89
17 U.S.C. § 106.
90
See Dudnikov, 514 F.3d at 1069; Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir.
2004); Mellon Bank (East) PFSF, Nat’l Assoc. v. Farino, 960 F.2d 1217, 1221 (3d Cir. 1992).
91
See Section III.B.1., supra.
23
specific features—including range maps for various fish species and a link to Kansas fishing
regulations—appear wholly unrelated to the reproduction of Plaintiff’s fish illustrations in the
app’s fish species profiles. Plaintiff does not allege that the app’s Kansas content had any role in
making it possible for MEDL, quite separately, to copy and display Plaintiff’s illustrations
within the app. Instead, every indication is that MEDL is able to reproduce Plaintiff’s
illustrations without incorporating Kansas-related information into the app at all. Thus, the
record before the Court does not establish that the app’s Kansas-specific features are a but-for
cause of MEDL’s alleged reproduction of the copyrighted illustrations.
Nor does the record suggest that the app’s Kansas content has enabled MEDL to
distribute Plaintiff’s illustrations to the public. To be sure, the Court can imagine a plausible
argument that the app’s state-specific and geo-specific features make the app more attractive to
potential customers, thereby increasing the app’s total sales. It might be true, then, that the app’s
state-specific features have indirectly increased MEDL’s distribution of the app; and if so, those
features are properly viewed as a but-for cause of at least some incidents of the alleged copyright
infringement. For the purpose of establishing personal jurisdiction in this case, however, only
MEDL’s Kansas-related activities are relevant. Plaintiff has not shown that those activities
contributed in any way to the app’s distribution: as already noted, Plaintiff has not alleged or
presented any evidence that anyone in Kansas has ever used or purchased the FishID app.92 The
92
Plaintiff complains that MEDL has not disclosed whether the FishID app has ever been purchased or used
by someone in Kansas. See Doc. 42 at 2. But Plaintiff had the benefit of jurisdictional discovery in this case, see
Doc. 24, and he did not move to compel additional discovery or otherwise challenge the sufficiency of the discovery
he received. As Plaintiff has the burden of establishing personal jurisdiction, and has had every opportunity to
discover information on MEDL’s Kansas-related FishID sales, the Court finds it significant that the record lacks any
allegation or evidence that such sales have occurred.
24
record as it stands, therefore, does not suggest that the app’s Kansas-specific features have
contributed to a single incident of the alleged copyright infringement.
Having failed to demonstrate the requisite nexus under the but-for approach, Plaintiff has
necessarily failed to meet the “considerably more restrictive” proximate-cause test. 93 Indeed, it
does not appear that MEDL’s incorporation of Kansas-specific features into the FishID app are
in any way relevant to the merits of Plaintiff’s claims for copyright infringement.94 The Court
therefore finds that Plaintiff’s cause of action does not “arise out of” MEDL’s Kansas-related
activities. Because Plaintiff has not met his burden of satisfying the nexus requirement for
specific jurisdiction, the Court need not consider whether the exercise of jurisdiction would be
unreasonable. The Court may not exercise specific jurisdiction over MEDL in this case.
IV.
Transfer
MEDL requests the Court to dismiss this action or, in the alternative, to transfer the
action to the United States District Court for the Central District of California under 28 U.S.C. §
1631.95 For his part, Plaintiff states that “the Court may transfer venue to the state of California”
in the event the Court finds that it lacks personal jurisdiction over MEDL.96
Section 1631 provides that when “a court finds that there is a want of jurisdiction, the
court shall, if it is in the interest of justice, transfer such action . . . to any other such court in
93
See Dudnikov, 514 F.3d at 1078.
94
See id. (“The [proximate causation] approach . . . calls for courts to examin[e] whether any of the
defendant’s contacts with the forum are relevant to the merits of the plaintiff’s claim.”).
95
Doc. 36 at 13.
96
Doc. 42 at 9.
25
which the action . . . could have been brought at the time it was filed.”97 Despite § 1631's use of
the word “shall,” the Tenth Circuit has interpreted the phrase “if it is in the interest of justice” to
grant the district court discretion in deciding whether transfer is appropriate.98 The decision
whether to transfer the action or instead to dismiss the action without prejudice is thus ordinarily
within the sound discretion of the district court.99 Where, however, a suit features multiple
defendants residing in different states, “so there [is] no single court to which the action c[an] be
transferred with any assurance that jurisdiction [is] proper,” there exists a “patent impediment”
to transfer.100 In those circumstances, the Tenth Circuit has found that the most appropriate
course of action is to dismiss the case without prejudice rather than “unilaterally split up [the]
action and transfer the resultant components to diverse jurisdictions.”101
As the Court has noted, MEDL is not the only defendant in this case. Plaintiff has also
named Connecticut resident Jason Siniscalchi as a co-defendant, and Mr. Siniscalchi has
separately moved to dismiss on the basis that the Court lacks personal jurisdiction over him.102
That motion is not yet fully briefed, so the Court has not considered whether it may exercise
jurisdiction over Mr. Siniscalchi. But because the Court lacks personal jurisdiction over MEDL,
and because MEDL and Mr. Siniscalchi are domiciled in different states, the Court cannot be
97
28 U.S.C. § 1631 (emphasis added).
98
Trujillo v. Williams, 465 F.3d 1210, 1222–23 (10th Cir. 2006).
99
Id.
100
Shrader v. Biddinger, 633 F.3d 1235, 1249 (10th Cir. 2011).
101
See id. at 1249–50.
102
Doc. 37.
26
assured that the Central District of California or any other federal district court would have
jurisdiction over both parties to this action. This case thus features a “patent impediment” to
transfer.103 Further, Plaintiff does not contend, and the record does not indicate, that Plaintiff’s
claims against MEDL would be time-barred if the action is dismissed without prejudice.104 The
Court, therefore, finds that Plaintiff’s action against MEDL should be dismissed without
prejudice rather than transferred.
IT IS THEREFORE ORDERED that MEDL’s Renewed Motion to Dismiss for Lack of
Personal Jurisdiction (Doc. 36) is GRANTED.
IT IS SO ORDERED.
Dated: April 29, 2015
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE
103
See Shrader, 633 F.3d at 1249.
104
Cf. Trujillo, 465 F.3d at 1223 n.16 (finding that one factor warranting transfer rather than dismissal is a
“finding that the new action would be time barred” (citation omitted)).
27
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