Bouncing Bear Botanicals, Inc. et al v. KTW Enterprises, Ltd. et al

Filing 123

MEMORANDUM AND ORDER overruling 54 Defendants KTW Enterprises, LTD. And Ryan Scott A/K/A Bo Scott's Motion To Dismiss For Lack Of Personal Jurisdiction; overruling as moot 90 Plaintiffs' Motion For Leave To File Surreply To Motion To Dismiss (Doc. 54) and 94 Plaintiffs' Motion For Leave To File Second Surreply To Motion To Dismiss (Doc. 54). Signed by Chief Judge Kathryn H. Vratil on 9/21/2011. (nf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BOUNCING BEAR BOTANICALS, INC.;
JONATHAN SLOAN and BRAD MILLER;

)
)
)
Plaintiffs,
)
)
v.
)
)
KTW ENTERPRISES, LTD.; RYAN SCOTT, )
a/k/a BO SCOTT; and ALEX DIMOV, d/b/a
)
ALLEGRAND ENTERPRISES;
)
)
Defendants.
)
__________________________________________)

CIVIL ACTION
No. 10-4138-KHV

MEMORANDUM AND ORDER
Bouncing Bear Botanicals, Inc., Jonathan Sloan and Brad Miller bring suit against KTW
Enterprises, LTD, Ryan Scott and Alex Dimov, alleging violations of the Lanham Act, 15 U.S.C.
§ 1121, et seq., and various supplemental state law tort claims and trademark violations. See
Complaint (Doc. #1) filed Nov. 10, 2011. This matter is before the Court on Defendants KTW
Enterprises, LTD. And Ryan Scott A/K/A Bo Scott’s Motion To Dismiss For Lack Of Personal
Jurisdiction (Doc. #54) filed March 8, 2011, Plaintiffs’ Motion For Leave To File Surreply To
Motion To Dismiss (Doc. 54) (Doc. #90) filed May 27, 2011 and Plaintiffs’ Motion For Leave
To File Second Surreply To Motion To Dismiss (Doc. 54) (Doc. #94) filed June 10, 2011.
Defendants KTW Enterprises, Ltd. and Ryan Scott seek dismissal under Rule 12(b)(2),
arguing that this court lacks personal jurisdiction over them because they do not have sufficient
minimum contacts with Kansas to satisfy constitutional due process under the Fourteenth
Amendment. See Doc. #54.

Plaintiffs have a “light” burden to make a prima facie showing of personal jurisdiction to
avoid dismissal under Rule 12(b)(2). Echtinaw v. Lappin, No. 08-3011-KHV, 2009 WL 604131,
at *6 (D. Kan. March 9, 2009) (citing Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir.
1995)). The well-pled facts – as distinguished from conclusory allegations -- must be taken as
true to the extent they are uncontroverted by defendants’ affidavits, though only the well pled
facts of plaintiffs’ complaint -- as distinguished from conclusory allegations -- must be accepted
as true. Id. Here, defendants do not controvert any facts in plaintiffs’ complaint, but rather
assert that plaintiffs have not met their initial prima facie burden to show personal jurisdiction.
In a federal question case, determining whether a federal court has personal jurisdiction
over nonresident defendants requires two steps. Peay v. BellSouth Med. Assistance Plan, 205
F.3d 1206, 1209 (10th Cir. 2000).

First, the Court examines whether service of process

establishes jurisdiction under Rule 4(k), Fed. R. Civ. P., either as authorized by the applicable
federal statute or under the jurisdictional rules of the state where the district court is located. See
Peay, 205 F.3d at 1209; Rule 4(k), Fed. R. Civ. P. The Court then determines whether the
exercise of jurisdiction comports with due process, which in federal question cases flows from
the Fifth Amendment. Peay, 205 F.3d at 1210.
As noted, defendants argue lack of due process under the Fourteenth Amendment, not the
Fifth.

In Peay, the Tenth Circuit enumerates various factors for courts to consider when

determining whether jurisdiction comports with Fifth Amendment due process principles.1

1

Specifically, the Tenth Circuit identifies the following factors: (1) the extent of
defendants’ contacts with the place where the action was filed; (2) the inconvenience to
defendants of having to defend in a jurisdiction other than that of their residence or place of
business, including (a) the nature and extent and interstate character of defendants’ business, (b)
defendants’ access to counsel, and (c) the distance from defendants to the place where the action
was brought; (3) judicial economy; (4) the probable situs of the discovery proceedings and the
(continued…)
2 

Defendants do not address these factors or Fifth Amendment due process principles in their
motion or supporting documents. The Court cannot ascertain from the record whether any of the
factors favor defendants. Defendants have therefore not carried their burden to show that the
exercise of jurisdiction in this forum will make litigation “so gravely difficult and inconvenient”
that they unfairly are at “a severe disadvantage in comparison” to plaintiffs. Id. at 1212 (quoting
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478 (1985)). The Court overrules defendants’
motion to dismiss (Doc. #54) and thus overrules as moot plaintiffs’ two motions which seek
leave to file surreplies to the motion to dismiss (Docs. #90 and 94).
IT IS THEREFORE ORDERED THAT Defendants KTW Enterprises, LTD. And
Ryan Scott A/K/A Bo Scott’s Motion To Dismiss For Lack Of Personal Jurisdiction (Doc. #54)
filed March 8, 2011, Plaintiffs’ Motion For Leave To File Surreply To Motion To Dismiss (Doc.
54) (Doc. #90) filed May 27, 2011 and Plaintiffs’ Motion For Leave To File Second Surreply To
Motion To Dismiss (Doc. 54) (Doc. #94) filed June 10, 2011, be and hereby are OVERRULED.
Dated this 21st day of September, 2011 at Kansas City, Kansas.
s/ Kathryn H. Vratil
KATHRYN H. VRATIL
United States District Judge

extent to which the discovery proceedings will take place outside the state of defendants’
residence or place of business; and (5) the nature of the regulated activity in question and the
extent of impact that defendants’ activities have beyond the borders of their state(s) of residence
or business. Peay, 204 F.3d at 1212.
3