Monistere v. Losauro et al
Filing
26
ORDER & REASONS: 20 ORDERED that Defendants' Motion to Vacate Default Judgment (Rec. Doc. 20) is hereby GRANTED. IT IS FURTHER ORDERED that the Default Judgment (Rec. Doc. 16 ) is hereby VACATED, and enforcement of that judgment is hereby PR OHIBITED. FURTHER ORDERED that this matter is hereby TRANSFERRED to the United States District Court for the Middle District of Florida, Fort Myers Division. FURTHER ORDERED that Defendants' Motion for New Trial or to Amend Judgment (Rec. Doc. 21 ) is DENIED AS MOOT. Signed by Judge Carl Barbier on 12/4/13. (sek, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ANGELO MONISTERE
CIVIL ACTION
VERSUS
NO: 13-22
VALENTINO LOSAURO, CLAWZ
DESIGNS, INC., and FRINGEY BY
VALENTINO, INC.
SECTION: J
ORDER AND REASONS
Before the Court is a Motion to Vacate Default Judgment, for
Stay
of
Execution,
and
for
Dismissal
brought
by
Defendants
Valentino Losauro, Clawz Designs, Inc., and Fringey by Valentino,
Inc. (collectively, "Defendants") (Rec. Doc. 20). Also before the
Court is Plaintiff Angelo Monistere's opposition thereto. (Rec.
Doc. 24). Having considered the motion, the parties’ submissions,
the record, and the applicable law, the Court finds, for reasons
expressed below, that Defendants' motion should be GRANTED.
PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff is the owner of a patent for a hair-cutting device
called a "finger razor." Plaintiff alleges that Defendants have
infringed
on
his
patent
by
making,
importing,
and
selling
infringing products. Defendants' allegedly infringing products are
called "the Clawz" and "the Fringey." Defendants have a website
that offers those products for sale throughout the world and
permits users to order the products online. Defendants admit that
1
they have sold products through the website and also at conventions
in Florida and California. Defendants have sold one Clawz product
to a Louisiana resident through their website, but that Louisiana
resident was Plaintiff himself. Defendants claim that they have
never
otherwise
manufactured,
marketed,
advertised,
sold,
or
distributed their products in Louisiana and that they have never
performed
services
in
Louisiana.
Defendants
have
no
offices,
property, or bank accounts in Louisiana and are not registered to
do business in Louisiana. The parties agree that Plaintiff is
domiciled in Louisiana and that Defendant Valentino Losauro is
domiciled in Florida. The parties also agree that Defendants Clawz
Designs, Inc. and Fringey by Valentino, Inc. are both incorporated
in Florida and both have their principal place of business in
Florida.
Plaintiff filed suit against Defendants in this Court on
January 5, 2013. Defendants failed to appear in the suit, and the
Court entered a preliminary default against them on September 10,
2013. The Court then entered a default judgment against Defendants
on September 24, 2013. Defendants now move for the Court to vacate
the default judgment.
PARTIES' ARGUMENTS
Defendants argue that the Court should grant relief from the
default judgment pursuant to Federal Rule of Civil Procedure
60(b)(4), and that the Court should dismiss Plaintiff's complaint
2
pursuant to Federal Rule of Civil Procedure 12(b)(2), on the
grounds that the judgment is void because the Court has neither
general nor specific personal jurisdiction over Defendants. On the
same grounds, Defendants also request relief from enforcement of
the default judgment.1
1. General Personal Jurisdiction
Defendants
jurisdiction
argue
over
that
them
the
Court
because
they
lacks
have
general
no
personal
continuous
or
systematic contacts with Louisiana. According to Defendants, they
do not manufacture, market, advertise, sell, or distribute their
products in Louisiana; they have no offices, property, or bank
accounts in Louisiana; they are not registered to do business in
Louisiana; and they have never performed services in Louisiana.
Plaintiff argues that Defendants' website subjects them to
general personal jurisdiction in this forum, contending:
Defendants have engaged, and continue to be engaged, in
interstate
commerce
with
the
entirety
of
the
world
through the internet, via an interactive website that is
1
Alternatively, Defendants argue that if the Court finds that it does,
in fact, have personal jurisdiction over Defendants, the Court should grant
relief from the default judgment pursuant to Federal Rule of Civil Procedure
60(b)(1) and (6) on the grounds of "any other reason that justifies relief,"
including, but not limited to, mistake, inadvertence, surprise, or excusable
neglect. On the same grounds, Defendants also request a stay of proceedings to
enforce the default judgment pending the Court's decision on the merits,
pursuant to Federal Rule of Civil Procedure 62(b)(4). Because the Court finds
that it lacks personal jurisdiction over Defendants, the Court declines to
address this alternative argument.
3
presented in seven languages, and permits ordering,
research, and even training on how to use the infringing
device. ... This type of website has long ben [sic]
considered
to
establish
'continuous
and
systematic'
business contacts with a forum ... .
Pl.'s Opp., Rec. Doc. 24, p. 6. To support this contention,
Plaintiff cites to Gorman v. Ameritrade Holding Corp., 293 F.3d
506, 511 (D.C. Cir. 2002).
2. Specific Personal Jurisdiction
Defendants argue that their only contact with Louisiana is a
single website purchase of one of their products by Plaintiff, a
Louisiana resident. Defendants contend that Plaintiff's purchase
constitutes unilateral activity by Plaintiff and thus that the
purchase does not constitute a minimum contact sufficient to
subject Defendants to specific personal jurisdiction in Louisiana.
Plaintiff argues that the sale of one allegedly infringing product
to Plaintiff in Louisiana is a sufficient contact to justify the
exercise of specific jurisdiction.
Defendants
also
contend
that
it
would
be
unfair
and
unreasonable for this Court to exercise specific jurisdiction over
them. According to Defendants, it would be overly burdensome to
require them to litigate in Louisiana because their operation is
very small and is based in Florida. Defendants also argue that all
4
of the relevant evidence is located in Florida. Defendants claim
that given the facts of this case, they could not reasonably have
foreseen being haled into court in Louisiana.
LEGAL STANDARD
Federal Rule of Civil Procedure 60(b) provides that a court
must grant relief from a judgment if the judgment is void. FED. R.
CIV. P. 60(b)(4) (2013); Jackson v. FIE Corp., 302 F.3d 515, 525
(5th Cir. 2002). A judgment is void if the defendant is not subject
to the court's personal jurisdiction. See Jackson, 302 F.3d 515.
Additionally, a "defendant is always free to ignore the judicial
proceedings, risk a default judgment, and then challenge that
judgment on jurisdictional grounds." Id. at 522 (citing Ins. Corp.
of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694,
706 (1982)). A defendant does not waive his right to object to
personal jurisdiction by failing to appear in the suit before the
court enters a default judgment. Id.
The Fifth Circuit has outlined the legal standard by which a
district court must adjudicate a motion to dismiss for lack of
personal jurisdiction:
Where a defendant challenges personal jurisdiction, the
party seeking to invoke the power of the court bears the
burden of proving that jurisdiction exists. Wyatt v.
Kaplan, 686 F.2d 276, 280 (5th Cir.1982). The plaintiff
5
need
not,
however,
establish
jurisdiction
by
a
preponderance of the evidence; a prima facie showing
suffices. Id. This court must resolve all undisputed
facts submitted by the plaintiff, as well as all facts
contested in the affidavits, in favor of jurisdiction.
Id.
The
Due
Process
Clause
of
the
Fourteenth
Amendment
guarantees that no federal court may assume jurisdiction
in
personam
of
a
non-resident
defendant
unless
the
defendant has meaningful “contacts, ties, or relations”
with the forum state. Int’l Shoe Co. v. Washington, 326
U.S. 310, 319, 66 S. Ct. 154, 90 L.Ed. 95 (1945).
Jurisdiction
may
be
general
or
specific.
Where
a
defendant has “continuous and systematic general business
contacts” with the forum state, Helicopteros Nacionales
de Colombia, S.A. v. Hall, 466 U.S. 408, 415, 104 S. Ct.
1868, 80 L.Ed.2d 404 (1984), the court may exercise
“general” jurisdiction over any action brought against
that defendant. Id. at 414, 104 S. Ct. 1868 n. 9. Where
contacts are less pervasive, the court may still exercise
“specific” jurisdiction “in a suit arising out of or
related to the defendant’s contacts with the forum.” Id.
at 414, 104 S. Ct. 1868 n. 8. . . .
6
The forum state may create, and this court would be bound
to
apply,
statute,
additional
Adams,
“long-arm”
220
statute
jurisdictional
restrictions
F.3d
but
at
extends
667,
by
Louisiana’s
jurisdiction
to
the
constitutional limit, La. R.S. 13:3201(B), so the two
inquiries in this case collapse into one.
Luv N’ Care, Ltd. v. Insta-Mix, Inc., 438 F.3d 465, 469 (5th Cir.
2006), cert. denied, Insta-Mix, Inc. v. Luv' N' Care, Ltd., 548
U.S. 904 (2006) (internal citations and footnotes omitted).
DISCUSSION
1. General Personal Jurisdiction
An individual is subject to general personal jurisdiction in
the state of his domicile. United States v. Henderson, 209 Fed.
App'x 401, 402 (5th Cir. 2006) (citing Milliken v. Meyer, 311 U.S.
457, 463-64 (1940)). A corporation is subject to general personal
jurisdiction both in its state of incorporation and in the state of
its principal place of business. See McIntyre Machinery, Ltd. v.
Nicastro, 131 S. Ct. 2780, 2787 (2011). Additionally, with respect
to
out-of-state
corporations,
"[a]
court
may
assert
general
jurisdiction ... to hear any and all claims against [out-of-state
corporations]
when
their
affiliations
with
the
State
are
so
'continuous and systematic' as to render them essentially at home
7
in the forum State." Goodyear Dunlop Tires Operations, S.A. v.
Brown, 131 S. Ct. 2846, 2851, citing Int'l Shoe, 326 U.S. 310, 317
(1945)); see also Revell v. Lidov, 317 F. 3d 467, 471 (5th Cir.
2002) (stating that general jurisdiction requires a defendant to
have substantial, continuous, and systematic contacts with the
forum state).
Here,
Valentino
Losauro,
an
individual,
is
domiciled
in
Florida. Clawz Designs, Inc. and Fringey by Valentino, Inc. are
both incorporated in Florida and both have their principal place of
business in Florida. It is clear that Defendants are not subject to
general personal jurisdiction in Louisiana based on their domicile,
incorporation, or principal places of business. Additionally, the
fact that Defendants have an internet presence that extends to
Louisiana does not subject them to general personal jurisdiction in
Louisiana courts. Other than the one product sold to Plaintiff,
Defendants
do
not
manufacture,
market,
advertise,
sell,
or
distribute products in Louisiana, and they have never performed
services in Louisiana. Defendants have no offices, property, or
bank accounts in Louisiana and are not registered to do business in
Louisiana.
For
these
reasons,
it
could
hardly
be
said
that
Defendants have substantial, continuous, and systematic contacts
with this forum that render them essentially at home in Louisiana.
Therefore, the Court does not have general personal jurisdiction
over Defendants.
8
Plaintiff's argument that the Court has general jurisdiction
based on the reasoning in Gorman does not persuade the Court
otherwise. In Gorman, the court held that there is general personal
jurisdiction over a defendant who is "doing business" within a
forum state. Gorman v. Ameritrade Holding Corp., 293 F.3d 506, 508
(D.C.
Cir.
continuously
2002).
In
providing
Gorman,
online
the
defendant,
brokerage
Ameritrade,
services
through
was
its
website for users all over the United States, including users
within the District of Columbia. Id. at 508, 510. The court found
that the website was not merely passive because it did not only
provide information but rather allowed users to open brokerage
accounts, transmit funds, buy and sell securities, and borrow from
Ameritrade.
Id.
at
512.
Ameritrade
had
engaged
in
multiple
electronic transactions with residents of the District of Columbia.
Id.
at
510.
According
to
the
court,
"As
a
result
of
their
electronic interactions, Ameritrade and its District of Columbia
customers enter into binding contracts, the customers become the
owners of valuable securities, and Ameritrade obtains valuable
revenue." Id. at 512-13. The court found that because the website
made it possible for Ameritrade to engage in these transactions
twenty-four hours a day, these contacts could be "continuous and
systematic" enough to warrant the exercise of general jurisdiction,
depending on "the frequency and volume of the firm's transactions
with District residents." Id. at 513. Here, Defendants' contact
9
with Louisiana does not even begin to approach the quality or
quantity of the continuous business contacts that Ameritrade had
with the District of Columbia in Gorman; therefore, Plaintiff's
argument fails.
2. Specific Personal Jurisdiction
The Fifth Circuit uses the following standards to determine
whether a court has specific jurisdiction over a defendant:
A
federal
court
may
satisfy
the
constitutional
requirements for specific jurisdiction by a showing that
the defendant has “minimum contacts” with the forum state
such
that
traditional
imposing
a
notions
of
judgment
fair
would
play
and
not
“offend
substantial
justice.” Int’l Shoe, 326 U.S. at 316, 66 S. Ct. 154. In
Nuovo Pignone v. STORMAN ASIA M/V, 310 F.3d 374 (5th Cir.
2002), we consolidated the personal jurisdiction inquiry
into a convenient three-step analysis: “(1) whether the
defendant ... purposely directed its activities toward
the forum state or purposely availed itself of the
privileges of conducting activities there; (2) whether
the plaintiff’s cause of action arises out of or results
from the defendant’s forum-related contacts; and (3)
whether the exercise of personal jurisdiction is fair and
reasonable.” Id. at 378 (citing Burger King Corp. v.
10
Rudzewicz, 471 U.S. 462, 474, 105 S. Ct. 2174, 85 L.Ed.2d
528 (1985)).
Luv N’ Care, 438 F.3d at 469 (5th Cir. 2006) (internal citations
and footnotes omitted).
a. Does Plaintiff's Claim Arise from
Defendants' Contacts with Louisiana?
Plaintiff has brought a claim for patent infringement based on
Defendants'
internet
sales
of
allegedly
infringing
products.
Plaintiff purchased one allegedly infringing product in Louisiana
from
Defendants'
website,
and
Plaintiff
maintains
that
this
transaction suffices as a minimum contact such that the Court
should exercise specific jurisdiction. It is therefore clear in
this case that Plaintiff's patent infringement claim arises from
the internet sale of a product to Louisiana, and so the claim
arises from Defendant's contacts with Louisiana.2
b. Did Defendants Purposefully Direct Their Activities Toward
Louisiana or Purposefully Avail Themselves of the Privileges of
Conducting Activities in Louisiana?
The Fifth Circuit has held:
2
Cf. Stomp, Inc. v. NeatO, L.L.C., 61 F. Supp. 2d 1074, 1075-76 (C.D.
Cal. 1999) (in patent infringement case, court stated: "There is little
question ... that the alleged contacts, [the defendant's] Internet sales of
self-adhesive labeling systems, is closely related to the present action. The
products being sold on [the defendant's] website incorporate the technology of
the ... Patent at issue.").
11
When the cause of action relates to the defendant's
contact
with
the
forum,
the
“minimum
contacts”
requirement is satisfied, and “specific” jurisdiction is
proper,
so
long
as
that
contact
resulted
from
the
defendant's purposeful conduct and not the unilateral
activity of the plaintiff. World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 297-98, 100 S. Ct. 559, 567-68, 62
L.Ed.2d 490 (1980). If the contact resulted from the
defendant's conduct and created a substantial connection
with the forum state, even a single act can support
jurisdiction. Burger King Corp. v. Rudzewicz, 471 U.S.
462, 105 S. Ct. 2174, 2184 n. 18, 85 L.Ed.2d 528 (1985);
McGee v. International Life Insurance Co., 355 U.S. 220,
223, 78 S. Ct. 199, 201, 2 L.Ed.2d 223 (1957).
Bearry v. Beech Aircraft Corp., 818 F.2d 370, 374 (5th Cir. 1987)
(emphasis added).
In the internet context, the Fifth Circuit has adopted the
Zippo test to determine whether a defendant has purposefully
availed itself of the forum state through its internet presence See
Mink v. AAAA Development, L.L.C., 190 F.3d 333, 336 (5th Cir.
1999); see also Revell, 317 F.3d at 471-472. The Zippo test is as
follows:
12
The
Zippo
decision
categorized
Internet
use
into
a
spectrum of three areas. At the one end of the spectrum,
there are situations where a defendant clearly does
business over the Internet by entering into contracts
with residents of other states which "involve the knowing
and repeated transmission of computer files over the
Internet... ." In this situation, personal jurisdiction
is proper. ... At the other end of the spectrum, there
are situations where a defendant merely establishes a
passive website that does nothing more than advertise on
the
Internet.
With
passive
websites,
personal
jurisdiction is not appropriate. ... In the middle of the
spectrum, there are situations where a defendant has a
website that allows a user to exchange information with
a host computer. In this middle ground, "the exercise of
jurisdiction is determined by the level of interactivity
and commercial nature of the exchange of information that
occurs on the Website."
Mink, 190 F.3d at 336 (citing Zippo Mfg. Co. v. Zippo Dot Com,
Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997)).
Using the Zippo test, district courts within the Fifth Circuit
have exercised specific jurisdiction where the defendant has a
website that permits users within the forum state to order or
13
purchase products online, or where the defendant provides services
to forum residents over the internet. Gatte v. Ready 4 A Change,
L.L.C., No. 11-2083, 2013 WL 123613, at *11 (W.D. La. Jan. 9,
2013); see Am. Eyewear, Inc. v. Peeper's Sunglasses & Accessories,
Inc.,
106
F.
Supp.
2d
895,
901
(N.D.
Tex.
2000);
see
also
AdvanceMe, Inc. v. Rapidpay, L.L.C., 450 F. Supp. 2d 669, 673-74
(E.D. Tex. 2006); see also Tempur-Pedic Int'l v. Go Satellite,
Inc., 758 F. Supp. 2d 366, 374-75 (N.D. Tex. 2010). In Gatte, the
court found that the defendant's website was highly interactive
because
it
allowed
users
to
engage
in
live
chats
with
the
defendant's employees, to fill out applications online, and to make
down payments to the defendant through the website. Gatte, 2013 WL
123613, at *11. The court found that the website's interactivity
weighed in favor of finding specific jurisdiction but then declined
to exercise personal jurisdiction for unrelated reasons. Id. at
*11-13. In Peeper's, the defendant's website enabled users to
purchase products, and the court found that the defendant had
purposefully availed itself of Texas by "regularly transact[ing]
business with Texas residents over its ... website." Peeper's, 106
F. Supp. 2d at 901-02 (emphasis added). Specific jurisdiction was
also found to be proper in an intellectual property case where the
defendant
was
not
regularly
transacting
business
with
Texas
residents but did provide services over the internet to Texas
residents "at least twice." AdvanceMe, 450 F. Supp. 2d at 673-74.
14
The Court has found particularly instructive the following
three intellectual property cases from district courts within the
Fifth Circuit: Tempur-Pedic Int'l v. Go Satellite, Inc., 758 F.
Supp. 2d 366 (N.D. Tex. 2010); QR Spex, Inc. v. Motorola, Inc., 507
F. Supp. 2d 650 (E.D. Tex. 2007); and Origin Instruments Corp. v.
Adaptive Computer Sys., Inc., No. 97-2595, 1999 WL 76794 (N.D. Tex.
Feb.
3,
1999).3
In
Tempur-Pedic,
the
defendant
operated
two
3
The Fifth Circuit has not issued appellate opinions in any of these
cases. It thus appears that the Circuit Court has not instructed district
courts regarding how they should decide issues of specific jurisdiction under
these particular fact patterns. For that reason, the Court's decision in this
matter involves a fact-intensive inquiry and a comparative analysis of other
district court cases.
In addition to considering decisions from district courts in the Fifth
Circuit, the Court has also found it useful to examine non-Fifth Circuit cases
involving internet sales. For example, in Stomp, an intellectual property
case, despite the fact that the court found that specific jurisdiction was
proper, the court still took into consideration the fact that the internet
sales in question were initiated by the plaintiff. Stomp, Inc. v. NeatO,
L.L.C., 61 F. Supp. 2d 1074, 1075-76 n.2 (C.D. Cal. 1999). In Stomp, the
defendant sold products that allegedly infringed on the plaintiff's patent
over the defendant's internet website, and some of the products were sold to
California residents. Id. at 1075-76. The court, using the Zippo test, found
that the defendant's website was "highly commercial" because it allowed the
user to purchase products online; therefore, there were sufficient minimum
contacts to subject the defendant to specific personal jurisdiction in
California. Id. at 1078. The court found that "[a]lthough the actual number of
sales to California citizens may be small, the critical inquiry in determining
whether there was a purposeful availment of the forum state is the quality,
not merely the quantity, of the contacts." Id. The court held that specific
jurisdiction was proper, but the court did make the following remark in a
footnote:
[The plaintiff] presents evidence of two sales made over the
Internet by [the defendant] to California citizens. However, this
evidence must be considered in light of the fact that these two
sales were made to [the plaintiff] and a friend of his, both ...
after this case and the instant motion had been filed.
Id. at 1076 n.2.
Similarly, in Shamsuddin, an intellectual property case where the sales
in question were made to two acquaintances of the plaintiff, the court
declined to exercise personal jurisdiction. Shamsuddin v. Vitamin Research
Prods., 346 F. Supp. 2d 804, 813 (D. Md. 2004). The court reasoned:
15
websites that sold products over the internet, making at least
three sales to Texas residents. Tempur-Pedic, 758 F. Supp. 2d at
370. One of these Texas sales was to a private investigator that
the plaintiffs hired. Id. Applying the Zippo test, the court found
that the website was interactive because it allowed users to
purchase products online. Id. 373-74. Despite this, the defendant
argued that the internet sales to Texas residents did not warrant
the exercise of specific jurisdiction because one of the sales in
Texas was "manufactured by [the] plaintiffs to create jurisdiction
in Texas" and "such unilateral, manufactured sales cannot form the
basis for personal jurisdiction." Id. The court found that specific
jurisdiction was proper, noting that the defendant had admitted to
entering into other sales to Texas residents other than the
plaintiffs' private investigator. Id. at 373.4
[The defendant's[ only contacts with Maryland are a commercial,
interactive website which is accessible to Maryland residents (as
it is to persons across the country and around the world), and two
sales of the ... product to Maryland residents who are
acquaintances of plaintiff ... . Two sales to Maryland residents
and maintenance of a commercial website do not rise to the level
of contacts of such “quality and nature” that the exercise of
personal jurisdiction over [the defendant] would comport with due
process.
Id.
4
The Tempur-Pedic court stated:
The court recognizes that there are cases in this circuit that
support the premise that a plaintiff cannot establish in personam
jurisdiction based on such sales. See, e.g., Bearry v. Beech
Aircraft Corp., 818 F.2d 370, 375 (5th Cir.1987) (noting that
defendant's contact must not have resulted from the unilateral
activity of the plaintiff in order for specific jurisdiction to be
proper); QR Spex, Inc. v. Motorola, Inc., 507 F. Supp. 2d 650, 661
(E.D.Tex.2007) (refusing to consider sales that were initiated by
plaintiff's investigator). But even if the court disregards the
16
In
QR
Spex,
the
defendant
sold
products
that
allegedly
infringed on the plaintiff's patent. QR Spex, Inc. v. Motorola,
Inc., 507 F. Supp. 2d 650, 653 (E.D. Tex. 2007). The plaintiff
hired a private investigator, who purchased two of the allegedly
infringing products by "reaching out to non-Texas retailers and
having [a product] shipped to Texas." Id. at 661. The court stated:
The
Court
purchases
finds
it
because
unilateral
acts;
unnecessary
they
to
constitute
albeit
acts
consider
[the
these
plaintiff's]
that
successfully
circumvented the measures [the defendant] undertook to
avoid availing itself to this forum. See Asahi Metal
Industry Co., Ltd. v. Superior Court of California,
Solano County, 480 U.S. 102, 109, 107 S. Ct. 1026, 94
L.Ed.2d
92
(1987)
(rejecting
the
notion
that
“a
consumer's unilateral act of bringing the defendant's
product
into
the
forum
State
was
a
sufficient
constitutional basis for personal jurisdiction over the
defendant.”). In any event, the Court cannot conclude
one sale to the Texas-based investigator plaintiffs hired, there
are sufficient alleged sales to other Texas residents to establish
a prima facie case for specific jurisdiction. In accusing
plaintiffs of orchestrating as many as three sales to Texas,
defendants appear to admit the existence of two other sales to
Texas. The court could infer that plaintiffs, who failed to
mention favorable evidence of additional sales in any prior court
document, were previously unaware of such sales and therefore not
responsible for arranging the two sales.
Tempur-Pedic, 758 F. Supp. 2d at 374-75.
17
that
these
sales
are
evidence
that
[the
defendant]
purposefully availed [itself] to this forum.
Id. at 661.
In Origin Instruments, the court made it clear that personal
jurisdiction may not be established by the mere possibility that
forum residents may purchase products on a defendant's website,
without further proof that the defendant has purposefully availed
itself of the forum state. Origin Instruments, 1999 WL 76794, at
*4.
Here, Defendants' website does not merely relate information
passively; rather, the website allows users to place orders online.
However, there is no evidence that Defendants have engaged in
repeated transactions with Louisiana residents over the site.
Therefore, this website falls into the middle category of the Zippo
test such that the question of specific jurisdiction may be
determined by the level of interactivity of the website. The Court
acknowledges that Defendants' website is highly interactive because
it allows users to purchase allegedly infringing products over the
internet. However, Defendants have only made one sale through the
website to a Louisiana resident – Plaintiff. For this one contact
with Louisiana to constitute purposeful availment of this forum by
Defendants, the contact must result from Defendants' purposeful
conduct, not merely from the unilateral activity of Plaintiff.
18
Unlike the defendant in Peeper's, Defendants are not regularly
transacting business with Louisiana residents; and unlike the
defendant in AdvanceMe, Defendants have not engaged in at least two
transactions involving Louisiana residents. Rather, Defendants have
only transacted business in Louisiana once, and that sale was made
to Plaintiff. Therefore, like the courts in Tempur-Pedic and QR
Spex, the Court will not rely on purchases made by Plaintiff to
establish that Defendants have purposefully availed themselves of
Louisiana. Other than the single transaction involving Plaintiff,
Defendants appear to have no contacts with Louisiana. Despite the
fact that Defendants' website is interactive, and the possibility
that additional Louisiana residents could purchase products on the
website, the Court agrees with the court in Origin Instruments that
personal
jurisdiction
may
not
be
established
by
the
mere
possibility that Louisiana residents may purchase products on
Defendants' website, without further proof that Defendants have
purposefully availed themselves of this forum. For these reasons,
the Court finds that Defendants have not purposefully availed
themselves of Louisiana and thus that the exercise of specific
jurisdiction
is
not
proper
in
this
case.5
Therefore,
it
is
unnecessary for the Court to engage in a discussion of fairness and
5
The Court's decision that specific jurisdiction is lacking here is
bolstered by the decisions in Stomp and Shamsuddin, where two non-Fifth
Circuit district courts both at least considered the fact that the internet
sales in question were initiated by the plaintiff or by the plaintiff's
associates.
19
reasonableness.
The
Court
has
neither
general
nor
specific
personal
jurisdiction over Defendants in this matter. Therefore, the default
judgment (Rec. Doc. 16) is void and, and the Court must grant
relief from that judgment pursuant to Federal Rule of Civil
Procedure 60(b)(4).6 The Fifth Circuit has made it clear that where
a district court lacks personal jurisdiction over a defendant, the
court has several choices. Fogarty v. USA Truck, Inc., 242 F. App'x
152, 154 (5th Cir. 2007). It may dismiss the action with prejudice,
dismiss the action without prejudice, or transfer the case to a
district court where personal jurisdiction and venue are proper.
Id. Here, the parties agree that Defendant Valentino Losauro is
domiciled in Florida. The parties also agree that Defendants Clawz
Designs, Inc. and Fringey by Valentino, Inc. are both incorporated
in Florida and both have their principal place of business in Fort
Myers, Florida. (Defs.' Mtn., Rec. Doc. 20-1, p. 2-3). Therefore,
the United States District Court for the Middle District of
Florida, Fort Myers Division, has general personal jurisdiction
over all three Defendants in this case.7 Venue is also proper in
6
Because the Court will vacate the default judgment and prohibit its
enforcement, the Court need not address Defendants' alternative argument that
the Court should grant relief from the judgment pursuant to Federal Rule of
Civil Procedure 60(b)(1) and (6) and grant a stay of proceeding to enforce the
judgment.
7
See discussion of general personal jurisdiction, supra, for details
about determining whether a State has general jurisdiction over individual,
natural persons and over corporate defendants.
20
that district court.8 Therefore, the Court will transfer this case
to that district. Additionally, because the Court lacks personal
jurisdiction over Defendants in this matter, Defendants' Motion for
New Trial or to Amend Judgment (Rec. Doc. 21) should be denied as
moot.
CONCLUSION
Accordingly,
IT IS ORDERED that Defendants' Motion to Vacate Default
Judgment (Rec. Doc. 20) is hereby GRANTED.
IT IS FURTHER ORDERED that the Default Judgment (Rec. Doc. 16)
is hereby VACATED, and enforcement of that judgment is hereby
PROHIBITED.
IT IS FURTHER ORDERED that this matter is hereby TRANSFERRED
to the United States District Court for the Middle District of
Florida, Fort Myers Division.
IT IS FURTHER ORDERED that Defendants' Motion for New Trial or
to Amend Judgment (Rec. Doc. 21) is DENIED AS MOOT.
8
Venue for a civil action is proper in "a judicial district in which
any defendant resides, if all defendants are residents of the State in which
the district is located." 28 U.S.C. § 1391 (West 2013). Defendant Valentino
Losauro, a natural person, is domiciled in Florida and is therefore a resident
of Florida for venue purposes. See id. The two corporate Defendants will be
deemed to reside in any judicial district where they are subject to personal
jurisdiction, which includes the judicial district encompassing Fort Myers,
Florida, because Fort Myers is their principal place of business. See id.
Because all three Defendants reside in Florida, venue is proper in any
district where any of them resides, and the corporate Defendants both reside
in Fort Myers, Florida. See id. Therefore, venue is proper as to all three
Defendants in the United States District Court for the Middle District of
Florida, Fort Myers Division.
21
New Orleans, Louisiana this 4th day of December, 2013.
____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
22
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