Hart v. Hillsdale, County of et al
ORDER Denying Defendant Watch System, L.L.C.'s Motion to Dismiss 55 . Signed by District Judge Denise Page Hood. (LSau)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 16-10253
HONORABLE DENISE PAGE HOOD
COUNTY OF HILLSDALE, et al.,
ORDER DENYING DEFENDANT WATCH
SYSTEM, L.L.C.’s MOTION TO DISMISS [#55]
In its Motion to Dismiss [#55], Defendant Watch Systems, L.L.C. (“Watch”)
asserts that Plaintiff’s cause of action should be dismissed as it relates to Watch
because the Court lacks personal jurisdiction over Watch. Watch’s Motion to Dismiss
was fully briefed, and the Court held a hearing on the Motion to Dismiss on
September 14, 2016. For the reasons that follow, the Court denies Watch’s Motion
As set forth in the memo pertaining to Marinoff’s and Kelly’s Motion to
Dismiss, Plaintiff has sued numerous defendants as the result of being wrongfully
arrested and convicted on two occasions for failure to register pursuant to the
Michigan Sex Offenders Registration Act (“SORA”).
Watch is a Louisiana limited liability company that offers software solutions
for sex offender registries to law enforcement and state agencies around the country.
(Am. Compl., Dkt. #22, ¶ 25; Dkt. #55, PgID #525) Since at least 2012, Watch has
had an agreement with the Michigan State Police (hereinafter “MSP”) to accurately
and reliably provide and maintain sex offender registry database software (the
“Agreement”) consistent with the duties of the MSP under MCL § 28.728. (Am.
Compl., Dkt. #22, ¶ 25) After entering the Agreement, Watch provided training in
Michigan to MSP staff regarding the use of Watch’s product, and it provides ongoing
maintenance and service of its product used by the MSP. (Dkt. #55, PgID 525-26)
Any other facts pertinent to Watch will be set forth in the discussion below.
APPLICABLE LAW & ANALYSIS
The procedure for deciding a motion to dismiss for lack of personal jurisdiction
under Fed. R. Civ. P. 12(b)(2) in the Sixth Circuit is set forth in Serras v. First
Tennessee Bank National Association, 875 F.2d 1212, 1214 (6th Cir. 1989). The court
may determine the motion on the basis of the submitted affidavits alone, it may permit
discovery in aid of the motion, or it may conduct an evidentiary hearing, either pretrial
or during trial, on the merits of the motion. Id. (quoting Marine Midland Bank, N.A.
v. Miller, 664 F.2d 899, 904 (2nd Cir. 1981)). If the written submissions raise
disputed issues of fact or require determinations of credibility, the court may order a
hearing. See id. The plaintiff then must prove that jurisdiction exists by the same
standard that would apply if the matter were deferred to trial: the preponderance of the
evidence. Serras, 875 F.2d at 1214 (citing Welsh v. Gibbs, 631 F.2d 436, 439 (6th
Cir. 1980), cert. denied, 450 U.S. (1981) (stating that “the plaintiff must show by a
preponderance of the evidence that jurisdiction exists”).
“If the court rules on written submissions alone, it must ‘consider the pleadings
and affidavits in the light most favorable to the plaintiff.’” Id. (quoting Welsh, 631
F.2d at 436). Plaintiff “may not rest on his or her pleadings to answer affidavits
submitted by the movant, but must set forth, ‘by affidavit or otherwise[,] . . . specific
facts showing that the court has jurisdiction.’” Serras, 875 F.2d at 1214 (citation
omitted). However, Plaintiff’s burden is merely to make a prima facie showing that
personal jurisdiction exists. See Id. If plaintiff meets that burden, the motion to
dismiss should be denied, “notwithstanding any controverting presentation by the
moving party.” Id. (quoting Marine Midland Bank, 664 F.2d at 904).
The issue of whether a federal court has personal jurisdiction over a defendant
is determined by applying the law of the state in which the court sits. See Erie
Railroad Co. v. Tompkins, 304 U.S. 64, 78 (1938) (noting that “Except in matters
governed by the Federal Constitution or by acts of Congress, the law to be applied in
any case is the law of the state.”). In addition, the court must consider whether
constitutional due process permits personal jurisdiction. Theunissen v. Matthews, 935
F.2d 1454, 1459 (6th Cir. 1991). The relevant inquiry is whether the facts of the case
demonstrate that the non-resident defendant possesses such minimum contacts with
the forum state that the exercise of jurisdiction would comport with “traditional
notions of fair play and substantial justice.” International Shoe Co. v. State of
Washington, 326 U.S. 310, 316 (1945).
The state of Michigan’s long-arm statute on personal jurisdiction over
corporations provides that limited or “specific” jurisdiction may be exercised where
a specified relationship exists between a corporation and the forum. M.C.L. 600.715,
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:
The transaction of any business within the state.
The doing or causing any act to be done, or consequences
to occur, in the state resulting in an action for tort.
The ownership, use, or possession of any real or tangible
personal property situated within the state.
Contracting to insure any person, property, or risk located
within this state at the time of contracting.
Entering into a contract for services to be performed or for
materials to be furnished in the state by the defendant.
Plaintiff argues that the Court has limited personal jurisdiction over Watch
pursuant to M.C.L. 600.715(1), (2) and (5). Watch argues that Plaintiff: (a) fails to
allege any specific action by Watch that subjects it to the Court’s jurisdiction; (b)
cannot allege any specific action by Watch that subjects it to the Court’s jurisdiction
because Watch does not transact any business in Michigan; and (c) has not asserted
any claims that involve activity by Watch. It is uncontested that Watch: (1) performs
all of its services in connection with the Agreement from its office in Covington,
Louisiana, except for the training of MSP staff; (2) does not maintain any offices or
have any employees in Michigan; and (3) does not maintain an agent for service of
process in Michigan. Watch contends that it has not entered into a contract for
services to be performed or for materials to be furnished in Michigan. Watch also
acknowledges that its “only physical presence in Michigan is limited to briefly
training MSP staff to use OffenderWatch” (Watch’s product). (Dkt. #55, PgID 533)
Watch argues that such an “insignificant activity unrelated to Plaintiff’s claims can
hardly be said to support . . . the exercise of specific jurisdiction.” Id. Watch further
asserts that it is not tasked with or responsible for maintaining the SOR, nor does it
participate in regulating the content on the SOR. Id., Ex. 1 at ¶7.
The Court is not be persuaded by Watch’s argument. The Sixth Circuit has held
that “if [a] defendant conducted even the slightest act of business in Michigan, the first
statutory criteria for personal jurisdiction under section 600.715(1) is satisfied.”
Lanier v. American Board of Endodontics, 843 F.2d 901, 906 (6th Cir. 1988), cert.
denied, 488 U.S. 926 (1988); Neogen Corp. V. Neo Gen Screening, Inc., 282 F.3d 883,
888 (6th Cir. 2002) (citation omitted) (“contact with Michigan customers through the
mail and the wires”); Miller v. AXA Winterthur Ins. Co., 694 F.3d 675, 679 (6 th Cir.
2012) (a letter sent from the defendant to the plaintiff was a nominal business
transaction that satisfied the Michigan long-arm statute).
As Plaintiff argues, “it does not matter that Watch . . . may have its sole place
of business in Louisiana, may not have employees in Michigan, and/or may not
maintain an agent for service of process in Michigan.” (Dkt. #62, PgID 583, citing
Dkt.#55, PgID 533) Plaintiff’s allegations suggest that Watch “negotiated via
telephone with Michigan clients (the MSP) for the sale of its software, sold its
software system to clients in Michigan . . ., and presumably received payment from
Michigan.” (Dkt. #62, PgID 584, citing Dkt.#55, PgID 525) Watch admits that its
representatives were sent to Michigan to train MSP staff about Watch’s software – and
provides ongoing services to the MSP by “operating and maintaining the software, as
well as [providing] other basic troubleshooting functions, such as providing ‘tech
bulletins’ and help desk availability.” (Dkt. #62, PgID584, citing Dkt. #55, PgID 526,
533). The Court finds that these transactions satisfy M.C.L. 600.715(1) and the
“slightest act of business” requirement set forth in Neogen Corp. Id. at 888. See also
Alisoglu v. Central States Thermo King of Okla., Inc., 2012 WL 1666426, at *5 E.D.
Mich. May 11, 2012) (first prong satisfied where defendant’s employees
communicated with plaintiffs through email and telephone calls and defendant
accepted payments through the mail from Michigan).
Plaintiff also argues that the Court should exercise limited personal jurisdiction
pursuant to M.C.L. 600.715(2) because Watch’s acts outside of Michigan have had
tortious consequences on Plaintiff in Michigan. Specifically, Plaintiff alleges that
Watch’s negligent design and maintenance of its software (Dkt. #22 at ¶¶5, 45-48)
was a cause of his harm in July-August 2013 and January-February 2014, when his
wrongful arrests and prosecutions occurred. (Dkt. #22 at ¶¶ 35-37, 47-48, 53-59, 6568, 72-74) Based on those allegations, the harm Plaintiff suffered due to, in part,
Watch’s activities (or failures) would have continued until Plaintiff was released from
prison, such that his injuries could be attributable to Watch.
For the reasons set forth in the preceding paragraph, the Court rejects Watch’s
arguments that: (1) Plaintiff’s injuries occurred before the Agreement was entered
because, according to Watch, Plaintiff’s injuries stemmed only from the MSP’s failure
to remove Plaintiff from the SOR when the SORA was amended in July 2011, months
before the Agreement was executed; and (2) Watch only provided software and the
MSP entered, edited, and removed all information. The Court concludes that Plaintiff
has met his burden under M.C.L. 600.715(2).
Plaintiff also argues that he has satisfied his burden pursuant to M.C.L.
600.715(5) of alleging that Watch contracted for “services to be performed or for
materials to be furnished in” Michigan. This argument is more tenuous, as the only
“services performed” in Michigan were training of MSP staff and the materials were
not furnished “in” Michigan, but that may be enough. See Brabeau v. SMB Corp., 789
F.Supp. 873, 877 (E.D. Mich. 1992) (company technician sent to Michigan to help in
the installation of a printing press constituted service performed in the state under
With respect to Plaintiff’s argument about materials being
furnished in Michigan, the product seems to be a website maintained from Louisiana
that MSP staff accessed. Although MSP staff were able to use Watch’s product in
Michigan, it seems debatable that there have been goods delivered to Michigan, which
distinguishes this case from Starbrite Distr., Inc. v. Excelda Mfg. Co., 454 Mich. 302,
307-08 (1997) (where the contract required delivery of goods to “a specific Michigan
The Court must also determine whether due process permits personal
jurisdiction over Defendant, a non-resident, who is not generally engaged in activities
within the State of Michigan. “[D]ue process requires only that in order to subject a
defendant to a judgment in personam, if [it] be not present within the territory of the
forum, [defendant] have certain minimum contacts with it such that the maintenance
of the suit does not offend ‘traditional notions of fair play and substantial justice.’”
International Shoe Co., 326 U.S. at 316 (citation omitted). The Supreme Court has
determined that one way to measure fairness is to consider whether the defendant’s
conduct is such that it “should reasonably anticipate being haled into court there.”
World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 296 (1980). The court
must specifically consider three criteria:
First, the defendant must purposefully avail himself of the privilege of
acting in the forum state or causing 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
jurisdiction to make the exercise of jurisdiction over the defendant
Theunissen, 935 F.2d at 1460; Southern Machine Co. v. Mohasco Indus., Inc., 401
F2d 374, 381 (6th Cir. 1968).
The Sixth Circuit has explained that a defendant must have “‘purposefully
directed’ his activity at residents in the forum” to meet the “fair warning” requirement.
Lanier, 843 F.2d at 910. Specifically, the court noted:
By “purposefully availing” itself of opportunities in the forum, such as
by purposefully directing itself to forum residents, a defendant opens
itself up to that forum’s jurisdiction. “[W]here the defendant
‘deliberately’ has engaged in significant activities within a State . . . or
has created ‘continuing obligations, ’ between [it]self and residents of
the forum . . . [it] manifestly has availed [it]self . . . and . . . it is
presumptively not unreasonable to require [it] to submit to ... litigation
in that forum . . . .”
Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-76 (1985)).
In this case, the Court is satisfied that Watch has “purposely availed” itself of
the privilege of acting in this forum. Watch entered into the Agreement with the State
of Michigan (MSP), it sent one or more representatives to Michigan to train MSP
staff, and it presumably receives payment from the State of Michigan (MSP). The fact
that MSP contacted Watch is irrelevant, especially as Watch has a website from which
it sought business from state agencies such as the MSP and admittedly provides the
MSP with log-in information in order to access the service provided by Watch. See,
e.g., Neogen, 282 F.3d at 890-91; Dkt. #55, PgID 526.
The Court next must determine whether an action “arise[s] from” the
defendant’s contacts with the forum. The Sixth Circuit has concluded that the “arising
out of” requirement of the long-arm statute is satisfied if the cause of action was
“made possible by” or “lies in the wake of” the defendant’s state contacts. Lanier,
843 F.2d at 909. Stated another way, this requirement requires only “that the cause
of action, of whatever type, have a substantial connection with the defendant’s in-state
activities.” Mohasco, 401 F.2d at 384, n.27. It is “[o]nly when the operative facts of
the controversy are not related to the defendant’s contact with the state can it be said
that the cause of action does not arise from that [contact].” Mohasco, 401 F.2d at 384,
Watch contends that its actions have no connection to Plaintiff’s injuries
because: (1) the injuries occurred prior to Watch entering into the Agreement (which
Watch asserts is the only possible connection); and (2) MPS, not Watch, controls the
data that is inputted into the software. The first contention was discussed and rejected
above because Plaintiff alleges that Watch’s negligent design and maintenance of its
software was a cause of his harm in July-August 2013 and January-February 2014. As
to the second contention, Plaintiff has alleged that his wrongful arrests and
prosecutions occurred because the software did not in any way detect or flag that
Plaintiff should not have been on the SOR after the SORA was amended in 2011. For
those reasons, the Court finds that Plaintiff has sufficiently alleged that Watch’s
actions have a substantial connection to the injuries suffered by Plaintiff in Michigan.
The Court turns to the issue of whether the acts of Watch – or the consequences
caused by Watch – have a substantial enough connection with Michigan to make the
exercise of personal jurisdiction reasonable. Mohasco, 401 F.2d at 381. “When the
first two elements are met, an inference arises that the third, fairness, is also present;
only the unusual case will not meet this third criterion.” First National Bank v. J.W.
Brewer Tire Co., 680 F.2d 1123, 1126 (6th Cir. 1982). A defendant “must present a
compelling case that the presence of some other considerations would render
jurisdiction unreasonable.” Burger King, 471 U.S. at 477.
To the extent Watch proffers any reasons why the exercise of jurisdiction over
it would be unreasonable, they are the same reasons rejected above. Those reasons
include that Watch: (a) is a passive actor, (b) operates out of Louisiana, (c) does not
have any responsibility for reviewing or maintaining the content of the MSP
information, and (d) had no responsibility for Plaintiff’s injury, as it was attributable
to others. The Court concludes that exercising jurisdiction over Watch would not
offend traditional notions of fair play and substantial justice.
Accordingly, IT IS ORDERED that Watch’s Motion to Dismiss [#55] is
IT IS ORDERED.
S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: March 31, 2017
I hereby certify that a copy of the foregoing document was served upon counsel of
record on March 31, 2017, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
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