Express Lien Inc v. Expressliens USA, Inc. et al

Filing 13

ORDER AND REASONS denying 8 Motion to Dismiss for Lack of Personal Jurisdiction and Improper Venue. Signed by Judge Jane Triche Milazzo. (ecm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
EXPRESS LIEN, INC.

CIVIL ACTION

VERSUS

NO: 17-2871

EXPRESSLIENS USA, INC. ET AL.

SECTION: H

ORDER AND REASONS
Before the Court is Defendant Expressliens USA, Inc.’s Motion to
Dismiss for Lack of Personal Jurisdiction and Improper Venue (Doc. 8). For
the following reasons, the Motion is DENIED.
BACKGROUND
Plaintiff, Express Liens Inc., dba as “Zlein,” is a construction title
company organized under the laws of the State of Delaware with its principal
place of business in New Orleans, Louisiana. Plaintiff operates an accounts
receivable

and

construction

payment

software

platform.

Defendant,

Expressliens USA, Inc., is also a construction title company whose principal
place of business and place of incorporation are in Florida. 1 Plaintiff alleges
that, among other things, Defendants have copied portions of its website and
distributed it on their confusingly similar website. Plaintiff alleges that
Plaintiff has also named Nickolas Santos and Expressliens USA’s insurer as
defendants, but neither has yet been joined in this matter.
1

1

Defendants have violated federal laws prohibiting copyright infringement,
trade dress infringement, unfair competition, cybersquatting, and federal
trademark infringement, as well as state laws prohibiting unfair trade
practices and breach of contract. Plaintiff seeks damages, injunctive relief, and
attorney’s fees.
Defendant Expressliens USA, Inc. has filed the instant Motion to
Dismiss, arguing that this Court lacks personal jurisdiction and that venue is
improper. Plaintiff has opposed this Motion, arguing that jurisdiction and
venue are proper pursuant to a forum selection clause.
LEGAL STANDARD
When a non-resident defendant challenges the court’s personal
jurisdiction, the party seeking to invoke the power of the court bears the
burden of proving that jurisdiction exists. 2 When a court rules on a motion to
dismiss for lack of personal jurisdiction without holding an evidentiary
hearing, as in this case, the plaintiff need only make a prima facie showing of
personal jurisdiction. 3 “The allegations of the complaint, except insofar as
controverted by opposing affidavits, must be taken as true, and all conflicts in
the facts must be resolved in favor of the plaintiff[ ] for purposes of determining
whether a prima facie case for personal jurisdiction has been established.” 4 “In
determining whether personal jurisdiction exists, the trial court is not
restricted to a review of the plaintiff’s pleadings.” 5 The Court may consider

Luv N’ care, Ltd. v. Insta-Mix, Inc., 438 F.3d 465, 469 (5th Cir. 2006) (citing Wyatt
v. Kaplan, 686 F.2d 276, 280 (5th Cir. 1982)).
3 Guidry v. U.S. Tobacco, Co., Inc., 188 F.3d 619, 625 (5th Cir. 1999).
4 Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1165 (5th Cir. 1985)
(citing DeMelo v. Toche Marine, Inc., 711 F.2d 1260, 1270 (5th Cir. 1983)).
5 Jobe v. ATR Mktg., Inc., 87 F.3d 751, 753 (5th Cir. 1996).
2

2

matters

outside

the

complaint,

including

affidavits,

interrogatories,

depositions, or any combination of the recognized methods of discovery. 6
LAW AND ANALYSIS
Plaintiff alleges that jurisdiction and venue are proper in this Court
pursuant to a forum selection clause that Defendant allegedly signed when it
created an account on Plaintiff’s website. The allegations of Plaintiff’s
Complaint, which must be accepted as true, state that Defendant created a free
user account on its website and thereby agreed to the “terms of use” of its
website. Plaintiff alleges that by agreeing to its “terms of use,” Defendant
agreed to a forum selection clause, which states that any dispute arising out of
a violation of intellectual property may be filed in the federal district court in
the Eastern District of Louisiana. Such a clause is a permissive forum selection
clause. “A permissive [forum selection clause acts as] a contractual waiver of
personal-jurisdiction and venue objections if litigation is commenced in the
specified forum.” 7 Accordingly, by agreeing to Plaintiff’s terms of use,
Defendant consented to jurisdiction and venue in this district for disputes
arising out of a violation of intellectual property law. This matter, involving
copyright and trademark infringement, falls squarely within the scope of the
forum selection clause.
The Court notes that in making this argument, Plaintiff has failed to
provide the Court with a copy of its terms of use and the forum selection clause
therein. Defendant, however, has not disputed the content of the forum
selection clause as quoted by Plaintiff in its opposition to this Motion. In
addition, “forum-selection clauses are presumed enforceable, and the party
6

1986)).

Id. (citing Colwell Realty Invs. v. Triple T. Inns of Ariz., 785 F.2d 1330 (5th Cir.

7

Weber v. PACT XPP Techs., AG, 811 F.3d 758, 768 (5th Cir. 2016).

3

resisting enforcement bears a heavy burden of proof.” 8 Accordingly, this Court
finds that Plaintiff has carried its burden to establish jurisdiction and venue
in this Court.
CONCLUSION
For the forgoing reasons, Defendant’s Motion is DENIED.

New Orleans, Louisiana this 21st day of November, 2017.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

8

2008).

Ginter ex rel. Ballard v. Belcher, Prendergast & Laporte, 536 F.3d 439, 441 (5th Cir.

4