Barker v. Patrick Collins Inc. et al

Filing 39

MEMORANDUM AND OPINION by Senior Judge Charles R. Simpson, III on 11/4/13; The Court concludes that Plaintiffs have failed to satisfy their burden of establishing personal jurisdiction over Defendants. Therefore, the Court will grant Defendants Motion to Dismiss. A separate order will be entered in accordance with this opinion. cc:counsel (JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
JENNIFER BARKER AND SABREE HUTCHINSON,
Individually and on Behalf of All Others Similarly Situated
v.

PLAINTIFFS

CIVIL ACTION NO. 3:12-CV-00372-CRS

PATRICK COLLINS, INC., ET AL.

DEFENDANTS

MEMORANDUM OPINION
This matter is before the Court on a motion to dismiss filed by the defendants, Patrick
Collins, Inc., Malibu Media, LLC, Raw Films, Ltd., K-Beech, Inc., and Third Degree Films
(collectively “Defendants”), against the plaintiffs, Jennifer Barker and Sabree Hutchinson,
individually and on behalf of all others similarly situated (collectively “Plaintiffs”) (DN 15). For
the reasons set forth below, the Court will grant the motion to dismiss
DISCUSSION
For a statement of the facts relevant to this dispute, refer to the Court’s July 19, 2013,
Memorandum Opinion and Order (“July 19 Opinion”) denying Plaintiffs’ motion for limited
discovery and Defendants’ motion to strike portions of Plaintiffs’ reply brief. (Memorandum
Opinion and Order, DN 30, at 1–3).
The sole issue presented for the Court’s resolution is whether Plaintiffs’ claims are
subject to dismissal for either failure to state a claim on which relief can be granted or lack of
subject matter or personal jurisdiction. Because the Court concludes that Plaintiffs have failed to
sustain their burden of establishing that Defendants are subject to personal jurisdiction in
Kentucky, Defendants’ Motion to Dismiss must be granted.

The plaintiff bears the burden of establishing personal jurisdiction. Neogen Corp. v. Neo
Gen Screening, Inc., 282 F.3d 883, 887 (6th Cir. 2002). While the district court may choose to
hold an evidentiary hearing to determine whether jurisdiction exists, it need not do so. If no
hearing is held, the plaintiff “need only make a prima facie showing of jurisdiction,”
CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th Cir. 1996), meaning that the court may
not “consider facts proffered by the defendant that conflict with those offered by the plaintiff,”
Neogen, 282 F.3d at 887, and “must consider the pleadings and affidavits in a light most
favorable to the plaintiff,” CompuServe, 89 F.3d at 1262.
A federal district court may exercise personal jurisdiction over any person subject to the
jurisdiction of the state in which it sits. Kerry Steel, Inc. v. Paragon Indus., 106 F.3d 147, 148
(6th Cir. 1997). In Kentucky,
the proper analysis of long-arm jurisdiction over a nonresident defendant consists of a
two-step process. First, review must proceed under KRS 454.210 to determine if the
cause of action arises from conduct or activity of the defendant that fits into one of the
statute's enumerated categories. If not, then in personam jurisdiction may not be
exercised. When that initial step results in a determination that the statute is applicable,
a second step of analysis must be taken to determine if exercising personal jurisdiction
over the non-resident defendant offends his federal due process rights.
Caesars v. Riverboat Casino, LLC v. Beach, 336 S.W.3d 51, 57 (Ky. 2011).
In analyzing the due-process limits of personal jurisdiction, a distinction is made between
“general” jurisdiction and “specific” jurisdiction. See Burger King Corp. v. Rudzewicz, 471 U.S.
462, 472–73 n. 15 (1985). In general jurisdiction cases, the defendant's contacts with the forum
state must be sufficiently “continuous and systematic” that the state may exercise personal
jurisdiction over the defendant even if the cause of action is wholly unrelated to the defendant's
contacts with the state. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408,
414–15 (1984). By contrast, in specific jurisdiction cases, the state may only “exercise[] personal

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jurisdiction over a defendant in a suit arising out of or related to the defendant's contacts with the
forum.” Id. at 414 n. 8.
For reasons similar to those set forth in the July 19 Opinion, the Court concludes that
Plaintiffs have failed to satisfy their burden of establishing personal jurisdiction. In their
Complaint, Plaintiffs assert the following claims against the Defendants: 1) civil conspiracy
under the Racketeer Influenced and Corrupt Organizations Act (“RICO”) based on Defendants’
alleged attempt to extort monetary settlements from Plaintiffs by threatening to publicly disclose
that they had accessed pornography on the internet; 2) common law fraud; 3) common law
defamation; 4) intentional infliction of emotional distress; and 5) unjust enrichment. (Complaint,
DN 1, at ¶¶ 23–41). Plaintiffs’ Response to Defendants’ Motion to Dismiss contains the
following discussion—and only the following discussion—relevant to the issue of personal
jurisdiction:
The Defendants in this matter all operate web sites that transmit their pornography
into the Commonwealth of Kentucky. They all accept subscriptions from Kentucky
citizens who wish to view their pornography. They all derive significant revenue from
Kentucky citizens. Additionally, K-Beech and Malibu Media victimized the Plaintiffs
through their predatory use of the courts and fraudulent behavior. Finally, the acts of the
Defendants leading to the harm complained of in the complaint and first amended
complaint occurred in Kentucky, and the harm resulted in Kentucky.
(Response to Motion to Dismiss, DN 31, at 5).1 As intimated in the July 19 Opinion, these facts
are insufficient to sustain Plaintiffs’ burden of establishing personal jurisdiction.2 First, as we
stated therein, “There is no connection… between pornography sales through websites…
accessed on a regular basis by Kentucky residents and the purported extortionate acts alleged to

1

Interestingly, this discussion does not appear in the body of Plaintiffs’ Response, but is instead located in a section
entitled “Facts.” Although it is thus unclear whether Plaintiffs intended this discussion to constitute their personal
jurisdiction argument, the fact that they do not discuss personal jurisdiction anywhere else suggests that they likely
did.
2
 We note here that Plaintiffs have not put forth any personal jurisdiction argument relating to their civil conspiracy
claim under RICO. Therefore, the court will only consider those arguments seeking to establish personal jurisdiction
with respect to the common law torts asserted by the Plaintiffs.

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have been committed against the plaintiffs in this action.” (Memorandum Opinion and Order,
DN 30, at 1–3). Second, Plaintiffs have failed to establish that the “fraudulent behavior”
allegedly committed by the Defendants took place in Kentucky as required by KY. REV. STAT. §
454.210(2)(a)(3). Third, although Plaintiffs allege that Defendants “derive significant revenue
from Kentucky citizens” and thus appear to argue that jurisdiction is proper under KY. REV.
STAT. § 454.210(2)(a)(4), their failure to address the requirement that “the tortious injury…
arises out of the doing or soliciting of business or a persistent course of conduct or derivation of
substantial revenue within the [state]” renders this argument unavailing. Finally, Plaintiffs have
not alleged anything resembling the kind of “continuous and systematic” contacts necessary to
justify the assertion of general jurisdiction. For these reasons, the Court concludes that Plaintiffs
have failed to satisfy their burden of establishing personal jurisdiction over Defendants.
Therefore, the Court will grant Defendants’ Motion to Dismiss.
A separate order will be entered in accordance with this opinion.

C al R Smpo I , ei J d e
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November 4, 2013

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