Wood v. Kapustin et al

Filing 37

ORDER granting 17 Motion to Dismiss (Written Opinion). Signed by Senior Judge David S. Doty on 1/17/2014. (PJM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 13-1495(DSD/TNL)
Nadezhda V. Wood,
Plaintiff,
ORDER

v.
Sergey Kapustin, Irina Kapustina,
Mikhail Goloverya, Global Auto,
Inc., G Auto Sales, Inc., Effect
Auto Sales, Inc.,
Defendants.

Nadezhda V. Wood, Esq., 500 Laurel Avenue, St. Paul, MN
55102.
Nicholas M. Wenner, Esq., Boris Parker, Esq. and Parker
& Wenner, 100 South Fifth Street, 2100 Fifth Street
Towers, Minneapolis, MN 55402, counsel for defendants.

This matter is before the court upon the motion to dismiss by
defendants.1

Based on a review of the file, record and proceedings

herein, and for the following reasons, the court grants the motion.

BACKGROUND
This dispute arises out of pro se plaintiff Nadezhda V. Wood’s
representation of nonparties Igor Glazunov and Irina Glazunova
(collectively, nonparty plaintiffs) in an unrelated matter.
is an attorney practicing in St. Paul, Minnesota.

1

Wood

Ver. Compl.

Defendants include Sergey Kapustin, Irina Kapustina, Mikhail
Goloverya, Global Auto, Inc., G Auto Sales, Inc. and Effect Auto
Sales, Inc.

¶ 14.

Wood represents the nonparty plaintiffs in an action

currently pending in the Eastern District of New York.

Id. ¶ 18.

In January 2013, the nonparty plaintiffs, who are Russian
citizens, wired money to defendant G Auto Sales, Inc. (G Auto) as
payment for an automobile.

Id. ¶ 17.

The nonparty plaintiffs

never received the vehicle and Wood sent demand letters to G Auto
and defendant Mikhail Goloverya, as President of G Auto.
¶¶ 17-18.

Id.

Defendant Sergey Kapustin responded, claiming to be

negotiating on behalf of Goloverya.

Id. ¶ 19.

To date, Wood and

the nonparty plaintiffs have been unsuccessful in obtaining the
vehicle or a refund.

Id. ¶ 23.

Thereafter, Glazunov posted on an online forum about his
transaction with G Auto.

Id. ¶ 24.

Several forum users shared

similar experiences with G Auto, defendant Global Auto, Inc.
(Global Auto) and defendant Effect Auto Sales, Inc. (Effect Auto).
Id.

After

being

alerted

to

the

additional

complaints,

Wood

registered a website, KapustinCars.com, to collect information from
additional individuals claiming to be victimized by defendants.

2

Id. ¶ 31.

KapustinCars.com includes a header and logo2 depicting

Wood’s name and likeness.

Id. ¶ 32.

Wood uses the same header and

logo on her law firm website, NadiaWood.com.3
Wood posted a link to KapustinCars.com on the online forum.
Id. ¶ 38.

In response, Kapustin issued a takedown notice for

KapustinCars.com, pursuant to the Digital Millennium Copyright Act
(DMCA).

Id. ¶ 40.

The website host reviewed the takedown notice,

found no violation of the DMCA and declined to take further action.
Id.
Thereafter,

Global

Auto

registered

the

NadiaWoodBlackmailer.com and NadiaWoodLaw.com.
website

redirects

domain.

Id.

to

NadiaWood.net,

an

domain
Id. ¶ 41.

names
Each

anonymously-registered

At the time Wood filed suit, NadiaWood.net displayed

Nadia Wood’s logo and Minnesota business address and included the
header “[e-mail].” Id. ¶ 43. The page read:

2

Wood asserts that she has a copyright application pending
with the United States Copyright Office for this logo. Ver. Compl.
¶ 32.
3

Wood practices under the name “Nadia Wood.”

¶ 14.
3

Ver. Compl.

“Nadia Wood Blackmail, Chantage,4 Racket[.]
money to NadiaWood.com, or Nadia Wood?

Did you paid [sic]

Investigate Nadia Wood ...

Beware of Blackmailer Lawyers of NadiaWood.com.”5
On
(1)

June

19,

copyright,

2013, Wood

trade

dress

Id. ¶ 44.

filed suit, alleging
and

service

mark

claims

for

infringement;

(2) violations of the Anticybersquatting Consumer Protection Act
(ACPA);

(3)

cyberpiracy

violations

under

15

U.S.C.

§

1129;

(4) defamation; and (5) tortious interference with prospective
economic advantage.

On that same day, Wood moved for a temporary

restraining order and preliminary injunction, seeking a court order
that the web host redirect the infringing websites pending trial.
A hearing on the request for injunctive relief was held on
July 8, 2013.

Defendants failed to appear at the hearing, and the

court ordered that they respond within ten days.

See ECF No. 12.

Thereafter, defendants moved to dismiss the complaint but did not
respond to the motion for preliminary injunction.

See ECF No. 17.

On July 23, 2013, the court granted the motion for preliminary
injunction.

The court now addresses the motion to dismiss.

4

Wood alleges that “chantage” is the phonetic spelling of a
Russian word meaning “blackmail.” Ver. Compl. ¶ 44.
5

After the court ordered defendants to respond to the motion
for preliminary injunction, the information was removed from the
website. See ECF No. 19, at 4 n.4.
4

DISCUSSION
I.

Personal Jurisdiction
To

survive

a

motion

to

dismiss

for

lack

of

personal

jurisdiction, a plaintiff must establish a prima facie case that
the forum state has personal jurisdiction over the defendant.
Stevens v. Redwing, 146 F.3d 538, 543 (8th Cir. 1998).

See

In the

absence of an evidentiary hearing, a court “must look at the facts
in the light most favorable to the nonmoving party and resolve all
factual conflicts in favor of that party.”

Dakota Indus., Inc. v.

Dakota Sportswear, Inc., 946 F.2d 1384, 1387 (8th Cir. 1991)
(citations omitted).

A federal court may assume jurisdiction over

a nonresident defendant “only to the extent permitted by the longarm statute of the forum state and by the Due Process Clause.”
Romak USA, Inc. v. Rich, 384 F.3d 979, 984 (8th Cir. 2004)
(citation and internal quotation marks omitted).

Because the

Minnesota long-arm statute “confers jurisdiction to the fullest
extent permitted by the Due Process Clause,” the court need only
consider due process requirements. See Coen v. Coen, 509 F.3d 900,
905 (8th Cir. 2007) (citation omitted).
To satisfy due process, a defendant must have “sufficient
minimum contacts” with the forum state such that maintaining the
suit

“does

not

offend

traditional

notions

of

fair

play

and

substantial justice.”

Romak, 384 F.3d at 984 (citation omitted).

“Sufficient

exist

contacts

when

5

[a]

defendant’s

conduct

and

connection

with

the

forum

state

are

such

that

[it]

reasonably anticipate being haled into court there....”

should

Coen, 509

F.3d at 905 (citation and internal quotation marks omitted).
Contacts

with

the

forum

state

can

establish

personal

jurisdiction under either general or specific jurisdiction.

A

forum state has specific jurisdiction when the cause of action
“arise[s] out of” or “relate[s] to” a defendant’s activities within
that state.

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472

(1985) (citation and internal quotation marks omitted).

General

jurisdiction is present when, regardless of the cause of action, a
defendant has “continuous and systematic contacts with the forum
state.”
marks

Coen, 509 F.3d at 905 (citation and internal quotation

omitted).

Under

either

analysis,

the

Eighth

Circuit

considers five factors in determining whether personal jurisdiction
is present: “(1) the nature and quality of defendant’s contacts
with the forum state; (2) quantity of contacts; (3) source and
connection of the cause of action with those contacts; and to a
lesser degree, (4) the interest of the forum state; and (5) the
convenience of the parties.”

Wessels, Arnold & Henderson v. Nat’l

Med. Waste, Inc., 65 F.3d 1427, 1432 (8th Cir. 1995) (citations
omitted).

Here,

defendants

have

no

obvious

connection

to

Minnesota, as they have not traveled to nor conducted business in
the state.

See, e.g., Kapustin Decl. ¶ 8.

Wood argues, however,

that the court has specific jurisdiction over the defendants as a

6

result of (1) the maintenance of the websites by the defendants and
(2) the effects of the defendants’ conduct being felt in Minnesota.
A.

Registration and Maintenance of Websites

Wood first argues that the registration and maintenance of the
websites

provides

jurisdiction.

sufficient

contacts

to

confer

personal

See Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.

Supp. 1119, 1124 (W.D. Pa. 1997) (establishing test for evaluating
personal jurisdiction in the context of Internet-based activities).
“When considering the sufficiency of internet contacts under a
specific jurisdiction analysis, [the Eighth Circuit has] found the
Zippo test instructive.”

Johnson v. Arden, 614 F.3d 785, 796 (8th

Cir. 2010) (citation omitted).

The Zippo test applies a sliding

scale to measure the interactivity of a website and, thus, the
likelihood that the website confers personal jurisdiction. See id.
The sliding-scale approach runs “from active contract formation and
repeated

transmission

of

information on a website.”

computer

files

to

mere

posting

of

Id. (citation omitted).

Here, Wood argues that the website at issue was interactive,
as it included an email address - [e-mail] and a form page where users could submit their name, address, phone
number, email and comments.

Ver. Compl. ¶ 44, Illustration 5.

For

a website to trigger personal jurisdiction, however, a higher
degree of interactivity is required.

See Johnson, 614 F.3d at 796

(finding website insufficient to confer personal jurisdiction where

7

“users may actually only post information.”); Greenbelt Res. Corp.
v. Redwood Consultants, LLC, 627 F. Supp. 2d 1018, 1027 (D. Minn.
2008) (finding website insufficient to confer personal jurisdiction
where users were able to “fill out and submit an electronic form to
contact

or

request

information”).

Because

of

the

lack

of

interactivity, the websites - without more - are insufficient to
confer personal jurisdiction in Minnesota.
B.

Effects of Defendants’ Conduct

Wood next argues that personal jurisdiction over defendants
exists according to the “effects” test set forth by Calder v.
Jones, 465 U.S. 783 (1984).

The Calder test “allows the assertion

of personal jurisdiction over non-resident defendants whose acts
are performed for the very purpose of having their consequences
felt in the forum state.”

Dakota Indus., 946 F.2d at 1390-91

(citation and internal quotation marks omitted).

In other words,

a forum state may obtain specific jurisdiction over a defendant who
commits tortious acts “where the plaintiff makes a prima facie
showing that the defendant’s acts (1) were intentional, (2) were
uniquely or expressly aimed at the forum state, and (3) caused
harm, the brunt of which was suffered - and which the defendant
knew was likely to be suffered - [in the forum state].”

Johnson,

614 F.3d at 796 (alteration in original) (citation omitted).
Wood argues that defendants committed acts intended to harm
her

professional

reputation

as

8

an

attorney

in

Minnesota.

Specifically, Wood argues that defendants knew that she practiced
law in Minnesota and included her Minnesota address on the websites
at issue.

See Ver. Compl. at Illustration 5.

Such statements,

however, are not “uniquely or expressly” aimed at the forum state.
See Johnson, 614 F.3d at 796 (finding that allegedly-defamatory
statement noting that plaintiff’s business was located in Missouri
was

insufficient

to

demonstrate

that

defendant

“uniquely

or

expressly aimed her statements at Missouri”). Moreover, the Eighth
Circuit “construe[s] the Calder effects test narrowly, and hold[s]
that, absent additional contacts, mere effects in the forum state
are insufficient to confer personal jurisdiction.”
(citation omitted).

Id. at 797

As a result, Wood cannot demonstrate personal

jurisdiction under Calder.

In sum, the court has considered the

personal jurisdiction factors6 and finds that dismissal for lack of
personal jurisdiction is warranted.

The court will dismiss the

complaint without prejudice, however, to allow Wood to file in an
appropriate forum state.
II.

Preliminary Injunction
On

July

23,

2013,

preliminary injunction.

the

court

granted

Wood’s

motion

for

As already explained, however, the court

6

Wood also argues that the interest of the forum state and
the convenience of the parties both weigh in favor of a finding of
personal jurisdiction.
As already mentioned, however, even if
those factors did favor jurisdiction, they are less important than
the other factors that strongly weigh against a finding of personal
jurisdiction. See Wessels, Arnold & Henderson, 65 F.3d at 1432
As a result, this argument is unavailing.
9

lacks personal jurisdiction over the defendants.

As a result, the

previous order granting the motion for preliminary injunction is
hereby vacated.

See Booker v. Special Sch. Dist. No. 1, 585 F.2d

347, 352 (8th Cir. 1978) (“There is no question that in a proper
case a federal district court that has issued an injunction may
vacate it or modify it....”).

CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that:
1.

The motion to dismiss [ECF No. 17] is granted, without

prejudice;
2.

The order granting the motion for preliminary injunction

[ECF No. 19] is hereby vacated.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated:

January 17, 2014
s/David S. Doty
David S. Doty, Judge
United States District Court

10