Humantech, Inc. v. Ergonomics Plus, Inc.

Filing 14

OPINION and ORDER Regarding Defendant's 6 Motion to Dismiss for Lack of Personal Jurisdiction. Signed by District Judge Gerald E. Rosen. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
HUMANTECH, INC.,
Plaintiff,
No. 14-CV-12141
Hon. Gerald E. Rosen

v.
ERGONOMICS PLUC, INC.,
Defendant.
___________________________________/

OPINION AND ORDER REGARDING DEFENDANT’S MOTION TO
DISMISS FOR LACK OF PERSONAL JURISDICTION
I. INTRODUCTION
This copyright infringement and trade secret action is currently before the
court on Defendant’s motion to dismiss the case for lack of personal jurisdiction,
pursuant to Fed. R. Civ. P. 12(b)(2). The case, which arises out of Defendant’s
alleged unlawful reproduction of Plaintiff’s copyrighted ergonomics documents,
presents an interesting and difficult question regarding the extent of “minimum
contacts,” in both internet and tortious activity contexts, that is necessary to give
rise to specific jurisdiction over an out-of-state defendant.

II. PERTINENT FACTS

1

Plaintiff Humantech, Inc., is a Michigan Corporation with its principal place
of business in Ann Arbor, Michigan. Pl.’s Compl., Dkt. # 1, ¶ 3. Plaintiff operates
in the field of ergonomics -- the “scientific discipline concerned with the
understanding of interactions among humans and other elements of a system.”
Definition and Domains of Ergonomics, International Ergonomics Association,
http://www.iea.cc/whats/index.html (last visited February 19, 2015).

Plaintiff

specializes in ergonomics “engineering, training, and consulting,” and provides
these services to a number of corporate clients.
Humantech,

Client List By Industry,

http://www.humantech.com/about/clients/industry

February 19, 2015).

(last

visited

Many of Plaintiff’s services draw on its portfolio of

intellectual property. Plaintiff owns copyrights for various “manuals, surveys,
guidelines, images, and other works in the field of ergonomic risk assessment and
workplace improvement,” Pl.’s Compl. ¶ 8, and, via its website, it provides
training courses based on these materials and sells licenses to some of them, id. ¶
10; see Ergonomics Products, Humantech, http://www.humantech.com/products
(last visited February 19, 2015).
Defendant Ergonomics Plus, Inc., is an Indiana corporation, with its
principal place of business in Grant County, Indiana. Pl.’s Compl. ¶ 4. Like
Plaintiff, Defendant provides ergonomic consulting services to its clients, focusing
on “preventing [injures in the workplace] and improving human performance for
2

local companies.” Ergonomics Plus Website Screenshot, Dkt. # 10-2 (last visited
June

17,

2011).

Defendant’s

business

primarily

focuses

on

“integrat[ing] . . . injury prevention specialists . . . directly into [the] workplace to
drive down . . . risk factors and build a safety culture.” Services, Ergonomics Plus,
http://ergo-plus.com/services/ (last visited February 19, 2015).
Like Plaintiff, Defendant makes available on its website a number of
informational electronic materials related to ergonomics, including guides,
handouts, webinars, and a blog.

Resources, Ergonomics Plus, http://ergo-

plus.com/resources/ (last visited February 19, 2015); see also Ergonomics Plus
Website Screenshot, Dkt. # 10-2 (last visited June 17, 2011). Defendant also
allows visitors of its website to sign up for a free consultation by entering an email
address. See id. No products are available for purchase on Defendant’s website,
nor is there any indication in the record that they ever were in the past. See id. As
of 2011, Defendant “offer[ed] services” in 10 states, including Michigan.
Ergonomics Plus Website Screenshot, Dkt. # 10-2 (last visited June 17, 2011).1
No evidence in the record, however, suggests that Defendant has any physical,
financial, or other corporate presence in Michigan aside from the presence of some
Michigan clients and its contacts with Plaintiff.
1

A later screenshot, taken in 2013, stated that Defendant is a “nationwide
consultancy, helping thousands of people across the United States remain healthy
and productive at work every day.” Ergonomics Plus Website Screenshot, Dkt. #
10-2 (last visited Dec. 22, 2013).
3

The events leading to this litigation began in April 2013, when “[Plaintiff]
discovered that [Defendant] had posted blogs on its website . . . through which
visitors could view and download a . . . lifting guidelines calculator that was very
similar in layout and appearance to, and which performed the same function as,
[Plaintiff’s] . . . Composite Lifting Guidelines calculator. Decl. of James Good,
Dkt. # 10-3, ¶ 3. 2 According to Plaintiff’s complaint, the calculator posted on
Defendant’s website contained metadata identifying one of Plaintiff’s employees
who had aided in the creation of Plaintiff’s calculator.3 Pl.’s Compl. ¶ 20. Around
the same time, Plaintiff also allegedly discovered that Defendant “improperly
replicated [Plaintiff’s] design guidelines,” which are available on Plaintiff’s
website, and replicated several other copyrighted materials owned by Plaintiff. Id.
¶¶ 23-29.
Through the declaration of its President, James Good, Plaintiff asserts
several contacts between Plaintiff and Defendant that Plaintiff believes led to the
unlawful copying of its intellectual property.

First, Defendant purchased an

“Applied Industrial Ergonomics” manual from Plaintiff on July 9, 2010. Decl. of

2

As Plaintiff describes in its complaint, a lifting guidelines calculator is a “tool[]
used to calculate guidelines for manual material handling tasks” that allows a user
to “select from different criteria for defining lifting capacity and calculating risk”
through the use of an interactive form. Pl.’s Compl. ¶ 14.
3
Plaintiff’s complaint contains several other assertions implying that Defendant
had copied Plaintiff’s calculator, but those details are not relevant to the
jurisdictional question addressed in this opinion. See Pl.’s Compl. ¶¶ 18-22.
4

James Good ¶¶ 9-10. An invoice for that purchase displays Plaintiff’s Ann Arbor,
Michigan, address as Plaintiff’s business address. See id., Ex. A. As part of that
purchase Defendant received a compact disc containing Plaintiff’s Composite
Lifting Guidelines calculator. Id. ¶ 10. 4 Defendant’s employees also attended
various online webinars put on by plaintiff between July 2010 and April 2013. Id.
¶¶ 11-12.
In response to Defendant’s alleged conduct, Plaintiff sent a cease and desist
letter to Defendant on April 26, 2013. Id. ¶ 6. The parties discussed the matter
over the next several months, and while they “were unable to fully resolve the
issues between them,” Plaintiff was apparently satisfied that the offending material
had been removed from Defendant’s website until April 2014, when Plaintiff again
discovered the allegedly copied lifting guidelines calculator on Defendant’s
website. Id. ¶¶ 6-8. Plaintiff sent a second cease and desist letter on April 3, 2014,
but discussions were less fruitful this time, and Plaintiff commenced this suit on
May 30, 2014. See id.; see generally Pl.’s Compl.
Plaintiff’s complaint asserts three claims for relief: (1) copyright
infringement in violation of 17 U.S.C. § 101 et seq., (2) violation of the Digital

4

Plaintiff’s complaint also notes a second avenue through which Defendant could
potentially have obtained the calculator. It states that the calculator was
“obtain[able] through the State of Michigan, Department of Labor and Economic
Growth website, for an unknown period of time. Humantech was unaware, and did
not authorize the posting, of its calculators on this website.” Pl.’s Compl. ¶ 16.
5

Millennium Copyright Act of 1998, 17 U.S.C. § 1201 et seq., and (3) violation of
the Michigan Uniform Trade Secrets Act, M.C.L. § 445.1901 et seq. Pl.’s Compl.
¶¶ 30-55. On July 29, 2014, Defendant filed the instant motion, asserting that the
Court lacks personal jurisdiction over it due to its lack of contacts with Michigan,
the forum state. Dkt. # 6.

III. DISCUSSION
A.

Rule 12(b)(2) Standard
On a motion to dismiss for lack of personal jurisdiction pursuant to Fed. R.

Civ. P. 12(b)(2), Plaintiff has the burden of establishing that the exercise of
jurisdiction over the defendant is proper. Neogen Corp. v. Neo Gen Screening,
Inc., 282 F.3d 883, 887 (6th Cir. 2002). Where, as here, there has been no
evidentiary hearing regarding personal jurisdiction, a plaintiff “need only make a
prima facie showing of jurisdiction.” Id. (quoting CompuServe, Inc. v. Patterson,
89 F.3d 1257, 1262 (6th Cir. 1996)) (internal quotation marks omitted). However,
it is insufficient for a plaintiff to merely reassert the allegations contained in its
pleadings. Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir. 1991). The
plaintiff must articulate specific facts to show that the court has jurisdiction. Id.
The court must then consider all of the facts presented in the pleadings and
affidavits in a light most favorable to the plaintiff, and does not weigh any contrary

6

assertions offered by the defendant. Intera Corp. v. Henderson, 428 F.3d 605, 614
(6th Cir. 2005).

“Courts have three options when faced with motions under

Federal Rule of Civil Procedure 12(b)(2): ‘(1) determine the motion[] based on
affidavits alone; (2) permit discovery, which would aid in resolution of the motion;
or (3) conduct an evidentiary hearing on the merits of the motion.’” Murtech
Energy Servs., LLC v. ComEnCo Sys., Inc., No. 2:13-CV-12721, 2014 WL
2863745, at *8 (E.D. Mich. June 24, 2014) (alteration in original).
Plaintiff in this case asserts both a federal question and diversity of
citizenship as a basis for subject matter jurisdiction in this case. Pl.’s Compl. ¶ 5.
Though it does not affect the ultimate outcome here, the Court notes that the basis
for subject matter jurisdiction affects the personal jurisdiction analysis.
A federal court sitting in diversity jurisdiction is limited in its exercise of
personal jurisdiction by (1) the long-arm statute of the state in which the federal
court sits and (2) the Due Process Clause of the Fourteenth Amendment. See
Neogen 282 F.3d at 888. A federal court that has subject matter jurisdiction on the
basis of a federal question, however, is not always so limited. In such cases where
the federal law at issue contains a nationwide service of process provision, a court
need only consider the Fourteenth Amendment’s due process limitations, as the
nationwide service of process provision “confer[s] personal jurisdiction in any
federal district court over any defendant with minimum contacts to the United
7

States.” Med. Mut. of Ohio v. deSoto, 245 F.3d 561, 567 (6th Cir. 2001) (quoting
United Liberty Lobby Life Ins. Co. v. Ryan, 985 F.2d 1320, 1330 (6th Cir. 1993)).5
In this case, neither of the two laws giving rise to federal question
jurisdiction -- the Copyright Act of 1976, 17 U.S.C. § 101 et seq., and the Digital
Millennium Copyright Act of 1998, 17 U.S.C. § 1201 et seq. -- contains a
nationwide service of process provision. In federal question cases where the law at
issue does not contain a nationwide service of process provision, the court must
follow Rule 4(k) of the Federal Rules of Civil Procedure, which “limits a court’s
exercise of personal jurisdiction to persons who can be reached by the forum
state’s long-arm statute.” Alisoglu v. Cent. States Thermo King of Oklahoma, Inc.,
5

The Sixth Circuit has articulated why this must be the case:
[T]he personal jurisdiction requirement restricts judicial power as a
matter of individual liberty-the individual’s due process right not to be
subject to extra-territorial jurisdiction unless he has a sufficient
relationship with the state asserting jurisdiction. When, however, a
federal court sitting pursuant to federal question jurisdiction exercises
personal jurisdiction over a U.S. citizen or resident based on a
congressionally authorized nationwide service of process provision,
that individual liberty interest is not threatened. In such cases, the
individual is not being subject to extra-territorial jurisdiction, because
the individual is within the territory of the sovereign—the United
States—exercising jurisdiction. In other words, when a federal court
exercises jurisdiction pursuant to a national service of process
provision, it is exercising jurisdiction for the territory of the United
States and the individual liberty concern is whether the individual
over which the court is exercising jurisdiction has sufficient minimum
contacts with the United States.

deSoto, 245 at 567-68.
8

No. 12-CV-10230, 2012 WL 1666426, at *3 (E.D. Mich. May 11, 2012) (citing
Omni Capital Int’l v. Rudolf Wolff & Co., 484 U.S. 97, 108 (1987)). Accordingly,
the Court’s analysis in this case must proceed as it would in a diversity case,
assessing personal jurisdiction under both Michigan’s long-arm statute and the Due
Process Clause of the Fourteenth Amendment. See Bird v. Parsons, 289 F.3d 865,
871 (6th Cir. 2002) (“Where a federal court’s subject matter jurisdiction over a
case stems from the existence of a federal question, personal jurisdiction over a
defendant exists ‘if the defendant is amenable to service of process under the
[forum] state’s long-arm statute and if the exercise of personal jurisdiction would
not deny the defendant[] due process.’” (alterations in original) (quoting Mich.
Coalition of Radioactive Material Users, Inc. v. Griepentrog, 954 F.2d 1174, 1176
(6th Cir. 1992))).

B.

Jurisdiction Under Michigan’s Long-Arm Statute
Michigan’s long-arm statute provides for both “limited” jurisdiction over

corporations pursuant to M.C.L. § 600.715 and “general” jurisdiction over
corporations pursuant to M.C.L. § 600.711. 6 For the purposes of this motion,

6

As explained by the Sixth Circuit, “[l]imited jurisdiction extends only to claims
arising from the defendant’s activities that were either within Michigan or had an
in-state effect. General jurisdiction, on the other hand, enables a court in Michigan
to exercise jurisdiction over a corporation regardless of whether the claim at issue
9

Plaintiff “seeks only to establish limited personal jurisdiction over [Defendant],”
Pl.’s Resp. to Def.’s Mot. to Dismiss, Dkt. # 10, at 9 n.5, and therefore the Court
considers only § 600.715 here. That statute provides:
The existence of any of the following relationships between a
corporation or its agent and the state shall constitute a sufficient basis
of jurisdiction to enable the courts of record of this state to exercise
limited personal jurisdiction over such corporation and to enable such
courts to render personal judgments against such corporation arising
out of the act or acts which create any of the following relationships:
(1) The transaction of any business within the state.
(2) The doing or causing any act to be done, or consequences to occur,
in the state resulting in an action for tort.
(3) The ownership, use, or possession of any real or tangible personal
property situated within the state.
(4) Contracting to insure any person, property, or risk located within
this state at the time of contracting.
(5) Entering into a contract for services to be performed or for
materials to be furnished in the state by the defendant.
M.C.L. § 600.715.
Plaintiff asserts that the Court need not consider § 600.715 because that
statute “[has] been construed to grant courts sitting in Michigan the broadest
possible scope of personal jurisdiction permitted by the Due Process Clause of the
Fourteenth Amendment” and thus “the analysis merges and the Court need only

is related to its activities in the state or has an in-state effect.” Neogen, 282 F.3d at
888 (citation omitted).
10

determine whether personal jurisdiction over the defendant exists under the Due
Process Clause.” Pl.’s Resp. to Def.’s Mot. to Dismiss, at 9 (quoting CSX Transp.,
Inc. v. Union Tank Car Co., 247 F. Supp. 2d 833, 836 (E.D. Mich. 2002));. In
making that statement, the court in CSX Transportation cited Neighbors v. Penske
Leasing, Inc., 45 F. Supp. 2d 593, 597 (E.D. Mich. 1999), which in turn relied on
Sifers v. Horen, 188 N.W.2d 623, (Mich. 1971), a Michigan Supreme Court case
finding that M.C.L. § 600.705 -- Michigan’s limited personal jurisdiction statute
with regard to individuals -- extends to the farthest limits permitted by due process.
See 188 N.W.2d at 623-24. And indeed, at least one unpublished Sixth Circuit
opinion assessing § 600.715 has since cited Sifers in stating that “[t]he Michigan
Supreme Court has construed Michigan’s long-arm statutes to bestow the broadest
possible grant of personal jurisdiction consistent with due process.”

Walker

Motorsport, Inc. v. Henry Motorsport, Inc., 110 F.3d 66 (6th Cir. 1997)
(unpublished). 7

However, other, more recent, Sixth Circuit opinions have

conducted separate personal jurisdiction analyses with regard to both the Due
Process Clause and § 600.715, with no mention of any merger between the two
analyses. See, e.g., Beydoun v. Wataniya Restaurants Holding, Q.S.C., 768 F.3d

7

This conclusion is certainly not an unreasonable one, given that all five
conditions sufficient to give rise to jurisdiction under § 600.715 are also sufficient
under § 600.705, along with two other sufficient conditions that are present in §
600.705. Compare M.C.L. § 600.715 with M.C.L. § 600.705.
11

499, 504 (6th Cir. 2014); Miller v. AXA Winterthur Ins. Co., 694 F.3d 675, 679
(6th Cir. 2012). In short, the law in this area is somewhat unclear. 8
But regardless of the exact relationship between § 600.715 and the Due
Process Clause, § 600.715 has uniformly been interpreted to cast an extremely
wide net. For example, “the transaction of any business within the state” necessary
to satisfy subsection (1) is established by “the slightest act of business in
Michigan.” Lanier v. Am. Bd. of Endodontics, 843 F.2d 901, 906 (6th Cir. 1988)
(citing Sifers, 188 N.W.2d at 624 n.2); see also Neogen, 282 F.3d at 888. “The
word ‘any’ means just what it says. It includes ‘each’ and ‘every’ . . . It
comprehends the ‘slightest.’” Lanier, 843 F.2d at 906 (quoting Sifers, 188 N.W.2d
at 624 n.2). Here, Plaintiff alleges that Defendant made business transactions
within Michigan that qualify under the statute. Plaintiff claims that Defendant
purchased property from Plaintiff in Michigan. See supra, n.4. Plaintiff has also
presented a prima facie case that limited personal jurisdiction exists over
Defendant under § 600.715(2), as Plaintiff alleges a tort action against defendant
that had an adverse effect on Plaintiff in Michigan. See Neogen, 282 F.3d at 88889 (“[Plaintiff] has also presented a prima facie case that limited jurisdiction exists
over [Defendant] under § 600.715(2), based upon [Plaintiff’s] allegation that the

8

From a practical perspective, it is admittedly difficult to imagine a case in which
the Due Process Clause’s requirements with regard to personal jurisdiction are
satisfied and yet § 600.715 is not, as will be discussed below.
12

use of [Defendant’s] website and tradename in dealing with its Michigan
customers has caused an adverse economic effect upon [Plaintiff] in Michigan.”).
Accordingly, the Court finds that, under Michigan’s long-arm statute,
limited personal jurisdiction is present over Defendant.9

C.

Jurisdiction Under the Due Process Clause of the Fourteenth

Amendment
The Due Process Clause of the Fourteenth Amendment limits the authority
of a court to bind a nonresident defendant to its judgments. In two recent cases,
Daimler AG v. Bauman, ___ U.S. ___, 134 S. Ct. 746 (2014) and Walden v. Fiore,
___ U.S. ___, 134 S. Ct. 1115 (2014), the Supreme Court reaffirmed and further
refined the personal jurisdictions requirements under the Due Process Clause that it
has articulated for decades.

Daimler dealt with “general jurisdiction” --

jurisdiction that arises out of a defendant’s continuous presence in a particular
place. Daimler reaffirmed the principle that a defendant may be subject to suit in
any jurisdiction where it can be said to be “at home.” Daimler, 134 S. Ct. at 760.
For a corporation, this could include places such as the state of incorporation or
places in which a corporation conducts most of its business. See id.; see also

9

Because the Court finds that limited personal jurisdiction is present over
Defendant, there is no need to determine whether the Court also has general
jurisdiction over Defendant under M.C.L. § 600.711.
13

Advanced Tactical Ordinance Sys., LLC, v. Real Action Paintball, Inc., 751 F.3d
796, 800 (7th Cir. 2014) (describing Daimler). Walden, in contrast, dealt with
“specific jurisdiction” -- jurisdiction that arises out of a defendant’s activity in the
forum state that is related to the suit itself. Walden, 134 S. Ct. at 1121-24. As the
Court has stated for nearly three-quarters of a century, the Due Process Clause
requires that a defendant have “certain minimum contacts” with the forum state
such that the defendant being haled into court in the forum state does not offend
“traditional notions of fair play and substantial justice.”

Int’l Shoe Co. v.

Washington, 326 U.S. 310, 316 (quoting Milliken v. Meyer, 311 U.S. 457, 463
(1940)) (internal quotation marks omitted); see also Walden, 134 S. Ct. at 1121-24.
As with most specific jurisdiction cases since International Shoe, Walden further
refined the Court’s articulation of what type of conduct satisfies the “minimum
contacts” test.
The parties primarily address specific jurisdiction in their briefs.

The

Supreme Court doctrine regarding specific jurisdiction is well defined. In order to
determine whether a court has specific jurisdiction over a nonresident defendant, a
court must “focus[] on the ‘relationship among the defendant, the forum, and the
litigation.’” Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775 (1984) (quoting
Shaffer v. Heitner, 433 U.S. 186, 204 (1977)). This inquiry has long centered on
the requirement that “in order to subject a defendant to a judgment in personam, if
14

he be not present within the territory of the forum, he have certain minimum
contacts with it such that the maintenance of the suit does not offend ‘traditional
notions of fair play and substantial justice.’” Int’l Shoe, 326 U.S. at 316 (quoting
Milliken, 311 U.S. at 463 (1940)).

This standard “is hardly a precise and

definitive” one, S. Mach. Co. v. Mohasco Indus., Inc., 401 F.2d 374, 381 (6th Cir.
1968), but numerous cases following International Shoe have provided further
guideposts.

Minimum contacts exist when “the defendant’s conduct and

connection with the forum state are such that he should reasonably anticipate being
haled into court there.” World–Wide Volkswagen Corp., v. Woodson, 444 U.S. 286,
297 (1980). Further, it is necessary that the defendant “purposefully avail itself of
the privilege of conducting activities within the forum state, thus invoking the
benefits and protections of its laws.” Burger King Corp. v. Rudzewicz, 471 U.S.
462, 475 (1985) (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)) (internal
quotation mark omitted). Most recently, the Walden Court emphasized two aspects
of the minimum contacts test that are particularly relevant here.

“First, the

relationship must arise out of contacts that the ‘defendant himself’ creates with the
forum State,” and not “contacts between the plaintiff (or third parties) and the
forum State,” no matter how substantial. Walden, 134 S. Ct. at 1122 (quoting
Burger King, 471 U.S. at 475). “Second, [the] analysis looks to the defendant’s
contacts with the forum State itself, not the defendant’s contacts with persons who
15

reside there.” Id. (emphasis added). Critically, this means that “the plaintiff
cannot be the only link between the defendant and the forum.” Id.
The Sixth Circuit has partitioned the minimum contacts analysis into a threepart test:
First, the defendant must purposefully avail himself of the privilege of
acting in the forum state or causing a consequence in the forum state.
Second, the cause of action must arise from the defendant’s activities
there. Finally, the acts of the defendant or consequences caused by the
defendant must have a substantial enough connection with the forum
state to make the exercise of jurisdiction over the defendant
reasonable.
S. Mach., 401 F.2d at 381. Much of the analysis tends to focus on the purposeful
availment prong, which the most complex part of the inquiry. See, e.g., Neogen,
282 F.3d at 890-92. “‘[P]urposeful availment’ is something akin to a deliberate
undertaking to do or cause an act or thing to be done in [the forum state] or
conduct which can be properly regarded as a prime generating cause of the effects
resulting in [the forum state], something more than a passive availment of [the
forum state] opportunities.” Id. at 891 (quoting Khalaf v. Bankers & Shippers Ins.
Co., 273 N.W.2d 811, 819 (Mich. 1978)) (internal quotation marks omitted). The
connections between the defendant and the forum state must be “more than
‘random, fortuitous, or attenuated.’” Id. at 892 (quoting Burger King, 471 U.S. at
475).

16

The Court, having carefully reviewed the record and the parties’ briefs
regarding jurisdiction, finds the record sufficiently opaque that jurisdictional
discovery is required.

Plaintiffs allege essentially three sets of putative

connections between Defendant and Michigan: (1) Defendant’s website, which
contains information about its services and was viewable and usable by Michigan
customers; (2) Defendant’s interactions with Plaintiff, including its alleged
copying of Plaintiff’s intellectual property, its communications with Plaintiff
related to the alleged copying, and its purchase of one of Plaintiff’s products; and
(3) Defendant’s alleged sales to Michigan customers.
The record provides substantial information regarding the first set of
connections, and the parties focus on Defendant’s website extensively in their
briefs. However, the record says very little about the second and third sets of
putative connections, both of which are relevant to specific jurisdiction in this case.
Plaintiff’s theory of jurisdiction relies heavily on Calder v. Jones, 465 U.S. 783
(1984), in which the Supreme Court applied the minimum contacts analysis to a
libel action and held that “a plaintiff can establish personal jurisdiction when it
alleges that the defendant ‘expressly aimed’ tortious conduct at the forum in
question and the ‘brunt of the harm’ is felt there.” Carrier Corp. v. Outokumpu
Oyj, 673 F.3d 430, 451 (6th Cir. 2012) (quoting Calder, 465 U.S. at 789); see also
Air Products & Controls, Inc. v. Safetech Int’l, Inc., 503 F.3d 544, 553 (6th Cir.
17

2007) (finding that a defendant’s contacts with the forum state may be “enhanced
by . . . conduct which, at least as alleged, was intentionally directed to cause harm
to a [forum] resident”).
Plaintiff’s Calder argument, however, must be viewed in the context of
Walden, which the parties did not substantially discuss in their briefs. Walden
emphasized that, even in the intentional tort context, the relationship between the
defendant and the forum state must arise out of contacts between the two that are
created by the defendant -- a defendant’s mere knowledge that an intentional tort
directed at a plaintiff will lead to adverse effects in the forum state is not enough.
See 134 S. Ct. at 1122. “A forum State's exercise of jurisdiction over an out-ofstate intentional tortfeasor must be based on intentional conduct by the defendant
that creates the necessary contacts with the forum.” Id. Walden discussed Calder
extensively, explaining the reasons why the libel tort in that case was “targeted” at
the forum state:
[In Calder,] the reputational injury caused by the defendants’ story
would not have occurred but for the fact that the defendants wrote an
article for publication in California that was read by a large number of
California citizens . . . . In this way, the “effects” caused by the
defendants' article—i.e., the injury to the plaintiff's reputation in the
estimation of the California public—connected the defendants'
conduct to California, not just to a plaintiff who lived there. That
connection, combined with the various facts that gave the article a
California focus, sufficed to authorize the California court's exercise
of jurisdiction.
Id. at 1124.
18

Here, the extent of Defendant’s litigation-related connections with Michigan
remains unclear -- the record does not indicate whether Defendant obtained the
allegedly copied property through its purchase from Plaintiff in Michigan (which
could potentially connect Defendant to the forum state) or through some other
means, such as by visiting the State of Michigan website. Further, the record does
not indicate the extent of Defendant’s current business in Michigan, which could
be relevant to both specific and general jurisdiction. As the record currently
stands, the Court is unable to assess, for example, the extent to which Defendant
competes with Plaintiff in Michigan for clients, which could potentially indicate
some targeting of the tort at the forum. See, e.g., Brayton Purcell LLP v. Recordon
& Recordon, 606 F.3d 1124, 1130 (9th Cir. 2010). While Plaintiff alleges that
Defendant’s website at one point indicated that Defendant served clients in
Michigan, the record provides no indication as to the extent, duration, and nature
of those Michigan contacts.
Accordingly, the Court finds that limited jurisdictional discovery is
necessary to determine whether the Court has personal jurisdiction over defendants
in this matter. The Court directs the parties to focus specifically on the issues
described above, including (1) the way in which Defendant obtained the allegedly
copied intellectual property, and (2) the extent and nature of Defendant’s current
and past business relationships in Michigan, especially as they relate to this
19

litigation. Further, the Court orders the parties to submit supplemental briefing
focusing on whether, under Calder and Walden, the Defendant’s connections with
Michigan (as ascertained through jurisdictional discovery) sufficiently evince that
the alleged tort was “targeted” at the forum state.

20

IV. CONCLUSION
For all of the foregoing reasons,
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss for Lack of
Personal Jurisdiction (Dkt. # 6) is DENIED without prejudice. Defendant may
renew the motion following the completion of jurisdictional discovery.
IT IS FURTHER ORDERED that the parties shall conduct limited discovery
regarding personal jurisdiction. Such discovery should be focused on (1) the
nature in which Defendant obtained the allegedly copied intellectual property, and
(2) the extent and nature of Defendant’s current and past business relationships in
Michigan. Such discovery is authorized for a period of no more than sixty (60)
days after entry of this order.
IT IS FURTHER ORDERED that the parties shall submit to the Court
supplemental briefing as described in this opinion. Such supplemental briefing
shall be submitted within sixty (60) days of the entry of this order.
IT IS SO ORDERED.

Dated: March 31, 2015

s/Gerald E. Rosen
Chief Judge, United States District Court

I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on March 31, 20155, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager, [phone]
21