Aaron Consulting Company, LLC v. Events.org

Filing 26

MEMORANDUM & ORDER, For the foregoing reasons, Defendants' motion to dismiss the amended complaint (Dkt. 21-1) is GRANTED. Plaintiff's amended complaint is DISMISSED WITHOUT PREJUDICE. So Ordered by Judge Nicholas G. Garaufis on 9/20/2018. (fwd'd for jgm) (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
■X

AARON CONSULTING CO., LLC d^/a
Ibidmobile.net,
Plaintiff,

MEMORANDUM & ORDER

16-CV-6775 (NGG) (VMS)

-against-

SNAP SOLUTIONS LLC d/b/a Events.org, iBid,
and ibid.com; and DAVID HASSAN,
Defendants.
-X

NICHOLAS G. GARAUFIS, United States District Judge.
Plaintiff Aaron Consulting Co., LLC brings this action under Section 43 of the Lanham
Act, 15 U.S.C. § 1125, alleging that Defendants Snap Solutions LLC ("Snap") and David Hassan

diluted and misappropriated Plaintiff's common-law rights in the "ibidmobile.net" trademark.
(See Am. Compl. (Dkt. 13).) Defendants have moved to dismiss the amended complaint
pursuant to Federal Rule of Civil Procedure 12(b)(2) and (5) on the grounds that the court does

not have personal jurisdiction over Defendants and that Plaintiff did not properly serve the
amended complaint on Defendants. (See Defs. Mot. to Dismiss ("Mot.") (Dkt. 21-1); Defs.

Mem. in Supp. of Mot. ("Mem.") (Dkt. 21).)
For the following reasons. Defendants' motion to dismiss is GRANTED.
I.

BACKGROUND
A.

Facts

The court takes the following statement of facts largely from Plaintiff's amended
complaint, the well-pleaded allegations of which the court generally accepts as true for purposes
of Defendants' motion to dismiss. N.Y. Pet Welfare Ass'n v. City of New York. 850 F.3d 79, 86

(2d Cir. 2017). "Additionally, because a motion to dismiss for lack of personal jurisdiction
1

requires the resolution offactual issues outside the pleadings, the [c]ourt considers other relevant
submissions from the parties at this stage." Cloplay Plastic Prods. Co. v. Excelsior Packaging
Grp.. Inc..No. 12-CV-5262(JPO),2014 WL4473352, at *1 (S.D.N.Y. Sept. 11,2014);^
Dorchester Fin. Sec.. Inc. v. Banco BRJ. S.A.. 722 F.3d 81, 86(2d Cir. 2013)(per curiam)("[A]

district court may [consider materials outside the pleadings] without converting a motion to

dismiss for lack of personal jurisdiction into a motion for summary judgment."). Specifically,
the court considers the Declaration of David Hassan in support of Defendants' motion to dismiss
(see Decl. ofDavid Hassan ("Hassan Deck")(Dkt. 21-2)), as well as the exhibits attached to
Plaintiff's amended complaint.
1.

The Parties

Plaintiff is a New York corporation with its principal place of business in Brooklyn, New
York. (Am. Compl. K 1.) Plaintiff owns and operates the website ibidmobile.net,"a long
standing, world renowned professional wireless auction company." (Id H 10.) Plaintiff

registered the website's domain name on May 5, 2010. (Id f 11.) According to Plaintiff,
"Ibidmobile.net has become a fixture of professional online and mobile auction management,

providing charity auction technology and services for the business ofraising fimds for
nonprofit[s]." (Id) Plaintififs ibidmobile.net mark has been in continuous commercial use since
April 10,2010, and was registered with the United States Patent and Trademark Office on July 3,
2012. 04122.)

Snap is a Delaware corporation with its principal place of business in Chicago,Illinois.
(Id 112,6.) Snap operates and maintains the website Events.org, which provides various
services for nonprofit organizations. (Hassan Decl. 16;
^Am. Compl.12.) In addition,
through the websites ibid.co and ibid.org. Snap "provid[es] online bidding software and services

on mobile devices to allow event participants to bid in live and silent auctions." (Hassan Decl.

K 8;
^Am. Compl. 2.) Hassan is Snap's owner, as well as the owner of ibid.co, and resides in
Chicago, Illinois. (Am. Compl. 3.) According to Hassan,"Snap has not done any business in
New York relating to its mobile online bidding service," which is "targeted towards Chicago and
the Midwestem United States." (Hassan Decl.

11,12.)

Snap registered the domain name ibid.co on July 20, 2010, over two months after
Plaintiffregistered ibidmobile.net. (Am. Compl. 14.) Plaintiff alleges that ibid.co uses the
term "iBid Mobile Bidding," which causes ibid.co "to be displayed near Plaintiffs website
'ibidmobile.net[.]'" (Id

13.) Plaintiff notes that, as of January 2011, Events.org "did not

reference iBid in connection with [Defendants'] online auction services." (Id ^15.) Plaintiff
alleges that Defendants have "consistently traded on the protected name and good will of
Plaintiff in the United States and around the world, creating consumer confusion and diluting
Plaintiffs reputation and the value ofPlaintifPs name. (Id
2.

12,16.)

The Trademark Dispute

On November 4,2016,Plaintiffs counsel sent a cease-and-desist letter to Defendants

regarding their allegedly infringing behavior. (Id ^ 17; PI. Nov.4,2016, Letter to Defs.
(Dkt. 13-1).) On November 7,2016, Hassan replied that Defendants had been "working under
the iBid name since 2008[, t]wo years prior to [Plaintiffs] claimed Trademark," and demanded
that Plaintiff"stop using the iBid name asap." (Am. Compl.^ 18.) Plaintiff's counsel requested

proof of Defendants'"claimed Trademark from 2008." (Id

19.) Hassan stated that Defendants

had not applied for a trademark,"since there were other organizations that were using the iBid
name[,] including the State of Illinois," and again asked Plaintiff"to refrain from using the

name." (Id f 20.) Plaintiff alleges that, despite Plaintiff's request that Defendants "refrain from

using the iBid [n]ame,[Defendants] have continued the damaging and infringing behavior." (Id.
1121.)
B.

Procedural History

On December 7, 2016,Plaintiff filed a complaint in federal court making the above

allegations against then-defendant Events.org. (See Compl.(Dkt. 1).) On January 23, 2017,
Events.org executed a waiver of service. (Events.org Waiver of Service (Dkt. 7).) On March 21,
2017,Events.org requested a pre-motion conference in anticipation of its motion to dismiss the
complaintfor lack ofpersonal jurisdiction. (Mar. 21,2017, Letter(Dkt. 8).) Subsequently,
Plaintiff informed Events.org that it intended to file an amended complaint naming Snap and
Hassan as defendants. (June 5,2017,Defs. Letter (Dkt. 12).)

Following the submission ofthe amended complaint on June 6, 2017,the court granted
Defendants leave to move to dismiss the complaint without an additional pre-motion conference.
(Nov. 22,2017, Order(Dkt. 17).) The motion was fully briefed on January 5,2018. (See Mot;
Mem.; PI. Aff. in Opp'n to Mot.("PI. Opp'n")(Dkt. 21-3); Defs. Reply Mem.in Supp. of Mot.
("Defs. Reply")(Dkt. 21-4).)
n.

LEGAL STANDARD

"Prior to discovery, a plaintiff challenged by a jurisdiction testing motion may defeat the

motion by pleading in good faith, legally sufficient allegations ofjurisdiction." Dorchester, 722
F.3d at 84. "At that preliminary stage, the plaintiffs nrima facie showing may be established
solely by allegations," id at 85, and "must include an averment offacts that, if credited by the
ultimate trier offact, would suffice to establish jurisdiction over the defendant," In re Terrorist
Attacks on Sept. 11.2001. 714 F.3d 659,673(2d Cir. 2013)(quotation marks and citation

omitted). In evaluating the sufficiency ofthe jurisdictional allegations, a court must "construe the

pleadings and affidavits in the light most favorable to the plaintiffs, resolving all doubts in their
favor." Dorchester, 722 F.3d at 85 (internal quotation marks and citation omitted). That said,
the court "will not draw argumentative inferences in the plaintiff's favor" nor "accept as true a

legal conclusion couched as a factual allegation." In re Terrorist Attacks on Sept. 11.2001. 714
F.3d at 673 (quotation marks and citations omitted),
in.

DISCUSSION

Defendants move to dismiss the complaint on two grounds: that the court does not have

personal jurisdiction over either defendant; and that Plaintiff did not serve the amended
complaint on Defendants within 90 days offiling the amended complaint, as required by Federal
Rule of Civil Procedure 4(m). (Mem. at 1.)

Fed. R. Civ. P. 12(b)(2),(5). "The [cjourt

considers the jurisdictional issues first, because a dismissal for lack ofjurisdiction renders all
other claims moot." Darden v. DaimlerChrvsler N- Am. Holding Corp.. 191 F. Supp. 2d 382,

386(S.D.N.Y. 2002)(citing, inter alia. Ruhrsas A.G. v. Marathon Oil Co.. 526 U.S. 574, 583
ri999)k see Anders v. Verizon Commc'ns Inc.. No. 16-CV-5654(VSB),2018 WL 2727883,
at *6(S.D.N.Y. June 5, 2018).
A.

Personal Jurisdiction

In deciding whether the court may exercise personal jurisdiction, the coirrt "look[s] to the
law ofthe forum state to determine whether personal jurisdiction will lie." Licci ex rel. Licci v.
Lebanese Canadian Bank. SAL (Licci IIP. 732 F.3d 161,168(2d Cir. 2013). Additionally, the

"exercise of personal jurisdiction over a foreign defendant[must] comport[] with due process

protections established under the United States Constitution." IL;s^ IntT Shoe Co. v. Wash..
326 U.S. 310,316(1945). "In a federal question case where a defendant resides outside the
forum state, a federal court applies the forum state's personaljurisdiction rules 'ifthe federal

statute does not specifically provide for national service of process.'" PDK Labs,Inc. v.
Friedlander. 103 F.3d 1105, 1108(2d Cir. 1997)(quoting Mareno v. Rowe.910 F.2d 1043,1046

(2d Cir. 1990)). Because the Lanham Act does not provide for national service of process, the
court apphes New York's jurisdictional statutes to deterniine whether it may exercise personal

jurisdiction over Defendants.

A.W.L.I. Grp.. Inc. v. Amber Freight Shipping Lines. 828 F.

Supp. 2d 557,563(E.D.N.Y. 2011). "Pursuant to the New York long-arm statute, there are two
ways that a New York court can exercise personal jurisdiction over a non-resident defendant:
general jurisdiction pursuant to pST.Y. CPLR 301]('Section 301') or specific jurisdiction

pursuant to [N.Y. CPLR 302]('Section 302')." Id. Because Plaintiff does not state on which
basis it believes the court may assert personal jurisdiction over Defendants, the court examines
the grounds for both general and specific jurisdiction. The court concludes that Plaintiff has not
made out a prima facie showing that it would be proper for this court to exercise personal
jurisdiction over either defendant.
1.

General Jurisdiction

Under Section 301,"general jurisdiction is established if the defendant is shown to have
'engaged in continuous, permanent, and substantial activity in New York.'" United Mobile
Techs.. LLC v. Pegaso PCS. S.A. de C.V.,509 F. App'x 48,50(2d Cir. 2013)(sununary order)

(quoting Wiwa v. Roval Dutch Petroleum Co.. 226 F.3d 88,95(2d Cir. 2000)). The defendant
must have engaged in business in New York "not occasionally or casually, but with a fair
measure of permanence and continuity." Wiwa.226 F.3d at 95(quotation marks and citation
omitted). Courts haye noted "tension" between the due-process requirement that a defendant
have "affiliations with the State [that] are so 'continuous and systematic' as to render [it]
essentially at home in the forum State," PaiTnler AG v. Bauman. 571 U.S. 117, 127(2014)

(quoting Goodvear Dunlop Tires Operations. S.A. v. Brown. 564 U.S. 915,919(2011)), and

Section 301's "agency-based theory ofjurisdiction." Sonera Holding B.V. v. Cukurova Holding
A.S.. 750 F.Sd 221,224-25 & n.2(2d Cir. 2014). Nevertheless, because general jurisdiction over
Defendants is clearly lacking, the court need not address any disparities between the New York
and due-process jurisdictional standards.

Defendants' activities in New York fall short ofthe level necessary to support general
jurisdiction. Snap maintains that it "is not incorporated in New York,is not licensed to do
business in New York, has no registered agent for service of process in New York, has no offices
or employees in New York, owns no property in New York, and currently does no business and
derives no revenue from New York." (Defs. Reply at 1 (citing Mem. at 6).) While Defendants
admit that Snap "conducted a very small amount of business in New York unrelated to mobile
online bidding, specifically registration for events and management of donors," they note that

this activity only occurred firom 2010 to 2015 and that the revenues Jfiom this activity were less

than $1000, or less than one percent of Snap's total revenues during this period. (Hassan Decl.
T114.) While the solicitation of"substantial and continuous" business, even without physical

presence, may support the exercise of general jurisdiction. Snap's relatively insignificant amount
of business does not suffice to subject it to jurisdiction in New York for all purposes. See
Overseas Media, Inc. v. Skvortsov. 407 F. Supp. 2d 563, 569(S.D.N.Y. 2006): cf. Zibiz Corp. v.
FQSf Tech. Sol'ns. Ill F. Supp. 2d 408,418(E.D.N.Y. 2011); Unique Indus.. Inc. v. Sui & Sons
Int'l Trading Com.. No. 05-CV-2744(KMK),2007 WL 3378256, at *3 n.4(S.D.N.Y. Nov. 9,
2007)
("When less than 5% of a company's revenue attributes to its business in the forum state,

general jurisdiction is normally denied."). Given that Snap is not incorporated in New York and
does not even have a physical presence in the state, as well as the fact that Snap does not have

additional pervasive contacts with New York, it would not comport with either New York law or
traditional notions of due process to subject Snap to general jurisdiction here.

Brown v.

Lockheed Martin Corp.. 814 F.3d 619,629(2d Cir. 2016)("[W]hen a corporation is neither

incorporated nor maintains its principal place of business in a state, mere contacts, no matter how
'systematic and continuous,' are extraordinarily unlikely to add up to an 'exceptional case.'"); cf.
Overseas Media. 407 F. Supp. 2d at 568.

Finally, because Hassan is domiciled in Illinois and has not consented to jurisdiction in
New York, it would not comport with due process to subject him to generaljurisdiction in New
York. See Reich v. Lopez. 38 F. Supp. 3d 436,455(S.D.N.Y. 2014).
2.

Specific Jurisdiction

Section 302,New York's long-arm statute, provides for the exercise of personal
jurisdiction over any foreign defendant who:
1. transacts any business within the state or contracts anjrwhere to
supply goods or services in the state; or
2. commits a tortious act within the state, except as to a cause of
action for defamation of character arising from the act; or
3. commits a tortious act without the state causing injury to person

or property within the state, except as to a cause of action for
defamation of character arising from the act, if he

(i) regularly does or solicits business, or engages m any other
persistent course of conduct, or derives substantial revenue from
goods used or consumed or services rendered, in the state, or
(ii) expects or should reasonably expect the act to have
consequences in the state and derives substantial revenue from
interstate or international commerce; or

4. owns,uses or possesses any real property situated within the state.
CPLR 302(a).

The court again notes that Plaintiff does not refer to particular sections ofthe long-arm
statute in claiming that Defendants are subject to personal jurisdiction in New York, but the court

has nevertheless attempted to match up Plaintiffs various allegations and claims with the
relevant sections ofthe law.

a.

Section 302(a)(1)

Section 302(a)(l) confers jurisdiction in New York on a foreign defendant that "transacts
any business within the state." "A defendant transacts business if he has 'purposely availed
himself ofthe privilege of conducting activities within New York and thereby invoked the

benefits and protections of its laws.'" Reich, 38 F. Supp, 3d at 457(quoting D.H. Blair & Co. v.
Gottdiener. 462 F.3d 95, 104(2d Cir. 2006));
^A.W.L.I.. 828 F. Supp. 2d at 564(citing Best
Van Lines. Inc. v. Walker. 490 F.3d 239,246-47(2d Cir. 2007))(stating that New York courts

"rely on the constitutional standard set forth by the Supreme Court" when considering whether a
defendant "transacted business"). "A single transaction may suffice for personal jurisdiction

under [Section] 302(a)(1), and physical presence by the defendant in the forum state during the
activity is not necessary." A.W.L.I.. 828 F. Supp. 2d at 565 (citing, inter alia. Bank Brussels
Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779,787(2d Cir. 1999)). A suit will be
deemed to have arisen out of a defendant's activities within the state ifthere is "an 'articulable

nexus' or 'substantial relationship' between the plaintiffs claim and the defendant's transaction
in New York." Strauss v. Credit Lvonnais. S.A.. 175 F. Supp. 3d 3, 18-19(E.D.N.Y. 2016)

(quoting Best Van Lines. 490 F.3d at 246). "This inquiry is a fact-specific one, and the point at
which the connection between the parties' activities in New York and the plaintiffs' claim
crosses the line from 'substantially related' to 'mere coincidence' is not always self-evident."

Licci ex rel. Licci v. Lebanese Canadian Bank. SAL rLicci D.673 F.3d 60,67(2d Cir. 2012)

(alterations adopted)(quotation marks and citation omitted).
Plaintiff first points out that Snap has, in the past, conducted a "very small amount of
business in New York." (PI. Opp'n H 13.) This piece ofinformation could be relevant to the

question of specific jurisdiction; here, however,there is no allegation that Snap's past
connections to New York were substantially related to the subject matter ofthis lawsuit. (See

Hassan Decl. UK 11,14.) As Hassan affirms, these business transactions related to "registration
for events and management of donors," not mobile online bidding or the ibid.co website. (Id K
14.) While the "substantial relationship" requirement is "relatively permissive," Strauss. 175 F.

Supp. 3d at 19(quoting Licci v. Lebanese Canadian Bank. SAL (Licci ID. 984 N.E.2d 893,900
(N.Y. 2012)),the court has no reason to suspect that Snap's transaction of business in New York
fi-om 2010 to 2015 was in any way moored to its operation ofibid.co, thus making personal

jurisdiction on this basis improper. See Licci HI. 732 F.3d at 168-69.
Plaintiff next alleges that Snap uses ibid.co to "solicit[] customers in New York" and
"directly advertiseQ New York[-]based events to New York customers." (PI. Opp'n K 15.)

When personaljurisdiction under Section 302(a)(1) is asserted on the basis ofthe defendant's
operation of a website, courts apply a "sliding scale" test based on the website's "interactivity."
See, e.g. Franklin v. X Gear 101. LLC.No. 17-CV-6452(GBD),2018 WL 4103492, at *3

(S.D.N.Y. Aug. 28,2018); Audiovox Com, v. South China Enter.. Inc.. No. 1 l-CV-5142(JS),
2012 WL 3061518, at *3(E.D.N.Y. July 26,20121: see Best Van Lines. 490 F.3d at 251 ("[T]he
likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to
the nature and quality of commercial activity that an entity conducts over the Internet... ."

(quoting Zinno Mfg. Co. v. Zippo Dot Com.Inc.. 952 F. Supp. 1119, 1124(W.D.Pa. 1997))).

10

"A website that merely passively provides information that is accessed by individuals in New

York is not grounds for the exercise of personal jurisdiction." Audiovox. 2012 WL 30615168,
at *3. "However,if a website is interactive and allows a buyer in New York to submit an order

online, courts typically find that the website operator is 'transacting business' in New York and
is therefore subject to the court's jurisdiction." Id.

The facts asserted by Plaintiff, even if true, would not support the conclusion that Snap is
transacting business in New York through ibid.co. Plaintiff does not aver that Snap "offers

merchandise for sale to consumers in New York and shipment ofsuch merchandise to there"
through ibid.co, nor does it claim that Snap derived any revenue from New York customers

through its operation ofibid.co. See Rovio Entm't. Ltd. v. Allstar Vending.Inc.. 97 F. Supp. 3d
536,542(S.D.N.Y. 2015)fciting Chloe v. Queen Bee of Beverlv Hills. LLC.616 F.3d 158,17071 (2d Cir. 2010)); see also CES Indus.. Inc. v. Minn. Transition Charter Sch.. 287 F. Supp. 2d
162,166(E.D.N.Y. 2003)("It is well-established that solicitation of business alone will not
justify a finding of corporate presence in New York."); cf Novak v. Overture Servs.. Inc., 309

F. Supp. 2d 446,455 (E.D.N.Y. 2004). Plaintiff points to the fact that Events.org "continues to
advertise New York events and auction software" and that Events.org contains a"New York

Calendar,""which includes a current listing ofNew York events,including charity events that
hold silent auctions"(PI. Opp'n UK 18-19), but these allegations also fail to establish personal
jurisdiction under Section 302(a)(1). First, as Defendants point out,"neither the Events.org

website nor the event listing thereon gives rise to the claims in Plaintifr's" amended complaint.
•(Defs. Reply at 2-3.) Second, Snap does not organize the events it advertises on Events.org, nor
does it derive any revenue from these advertisements; rather, Events.org "allows nonprofits to
advertise events free of charge across the United States." (Id at 3.) This activity is typical of a

11

"passive" website and cannot support the exercise ofjurisdiction under Section 302(a)(1). See
Royalty Network Inc. v. Dishant.com. LLC.638 F. Supp. 2d 410,418(S.D.N.Y. 2009)

(analogizing "passive" websites "to an advertisement in a nationally-available magazine or

newspaper,[which] does not without more justify the exercise ofjurisdiction over the defendant"
(quoting Citigroup Inc. v. City Holding Co.. 97 F. Supp. 549,565(S.D.N.Y. 2000))). As
Defendants correctly point out,"online advertising, even if directed at New York residents, is not
sufficient to support the exercise of personal jurisdiction over a defendant when it is not

supplemented by business transactions occurring in the state or accompanied by a fair measure of
the defendant's permanence and continuity in New York which establishes a New York

presence." (See Mem. at 7.) See A.W.L.I.. 828 F. Supp. 2d at 566 (alterations adopted)(citation
and internal quotation marks omitted).

Finally, because Snap did not transact business in New York for purposes ofthis lawsuit,
Section 302(a)(1) similarly does not support the exercise of personal jurisdiction over Hassan.
See Duravest Inc. v. Viscardi, A.G., 581 F. Supp. 2d 628,635(S.D.N.Y. 2008)(stating that an
individual defendant may be subject to personal jurisdiction on the basis ofhis relevant contacts
with the corporate defendant).
b.

Section 302(a)
(2)

As set forth above, Section 302(a)(2) permits the court to exercise jurisdiction over a

defendant ifthe defendant has "comniit[ted] a tortious act within" New York. CPLR 302(a)(2)
(emphasis added). "Section 302(a)(2) has been narrowly construed to apply only when the

defendant was actually physically present in New York when he performed the allegedly tortious
act." Rescuecom Corp. v. Hvams.477 F. Supp. 2d 522,531 (N.D.N.Y. 2006)(citing Bensusan
Rest. Corp. v. King. 126 F.3d 25,28-29(2d Cir. 1997)). Where a foreign defendant allegedly

12

infringes an in-state plaintiffs trademark through the defendant's operation of a website,

physical presence is deemed to be "where the website is created and/or maintained." A.W.L.L.
828 F. Supp. 2d at 571.

Here, ibid.co, ibid.org, and Events.org were all created and maintained in Illinois, not

New York. (Mem. at 9(citing Hassan Deck

7, 9).) Plaintiff does not claim otherwise. (See

PI. Opp'n.) Similarly, there are no allegations that Hassan committed any relevant tortious
actions that do not relate to his ownership ofthese websites. Accordingly, Section 302(a)(2)
jurisdiction over both defendants would be improper.
c.

Section 302(a)(3)

Section 302(a)(3) permits the court to exercise jurisdiction over a foreign defendant who
"commits a tortious act without the state causing injury to person or property within the state ...

if he (i) regularly does or solicits business, or engages in any other persistent course of conduct,
or derives substantial revenue from goods used or consumed or services rendered, in the state, or

(ii) expects or should reasonably expect the act to have consequences in the state and derives
substantial revenue from interstate or international commerce." CPLR 302(a)(3)(emphasis

added). In other words,in order to establish jurisdiction over Defendants pursuant to this
section. Plaintiff"must establish harm within New York State caused by [Defendants'] tortious

conduct and then satisfy the requirements set forth either in subsection (i) or subsection (ii)."

A.W.L.I.. 828 F. Supp. 2d at 571. It bears noting that "Section 302(a)(3)'was not designed to go
to the full limits ofpermissible jurisdiction.'" Rlchtone Design Grp. L.L.C. v. Classical Pilates,
Inc.. No. 06-CV-547(NRB),2006 WL 2588135, at *2(S.D.N.Y. Aug. 21, 2006)(quoting
Ingraham v. Carroll. 687 N.B.2d 1293, 1295 (N.Y. 1997)). "Rather, the limitations in

13

subparagraphs (i) and (ii)'were deliberately inserted to keep the provision well within
constitutional bounds.'" Id (quoting Ingraham. 687 N.E.2d at 1295).
i.

Injury Within New York

"Trademark infringement can be a 'tort' for the purpose of determining long-arm

jurisdiction." Energy Brands Inc. v. Spiritual Br^ds.Inc.. 571 F. Supp. 2d 458,470-71
(S.D.N.Y. 2008)(alteration adopted)(quotation marks and citation omitted). "Therefore, courts
have found that trademark infringement htigation may proceed even in the absence of[any]
product having been sold." PDK Labs.Inc. v. Proactive Labs. Inc.. 325 F. Supp. 2d 176,180

(E.D.N.Y. 2004). "[F]or purposes of determining jurisdiction under [Section] 302(a)(3), the
alleged injury stemming from infringement of a trademark in the form of damage to goodwill,
lost sales, or lost customers will occur where the trademark owner resides and conducts business

because this is where the first effects oftrademark infringement or dilution are typically felt."

A.W.L.I.. 828 F. Supp. 2d at 572(internal quotation marks and citation omitted).
Plaintiff has met the preliminary harm requirement of Section 302(a)(3): Plaintiff alleges
various Lanham Act harms, all of which are said to occur in New York because that is where

Plaintiff, a New York corporation, resides. Even so. Plaintiff cannot survive the motion to

dismiss ifthe complaint does not also meet one ofthe two jurisdictional bases in subsections(i)
or(ii).
ii.

Subsection lib Regular Solicitation of Business in New
York

As set forth above, Plaintiff has not alleged facts sufficient to show that Defendants

"transacted business" in New York under Section 302(a)(1); or that they "engaged in continuous,

permanent, and substantial activity in New York" from which they derived "substantial
revenue," as would support Section 301 jurisdiction. Accordingly, specific jurisdiction cannot
14

attach under Section 302(a)(3)(i).

Levans v. Delta Airlines, Inc., 988 F. Supp. 2d 330, 339

(E.D.N.Y. 2013).
iii.

Subsection Cii"): Expectation of Consequences

Section 302(a)(3)(ii), meanwhile,"allows for jurisdiction over an out-of-state defendant
with no contacts with New York,if, inter alia, the defendant is alleged to have committed a

tortious act outside the State that caused, and reasonably should have been expected by the
putative defendant to cause, injury to a person or property within the State." Penguin Grp.
(USA)Inc. V. Am.Buddha,609 F.3d 30,32(2d Cir. 2010). "The test of whether a defendant

expects or should reasonably expect its actions to have consequences in New York is an
objective one." In re Dental Supplies Antitrust Litig.. No. 16-CV-696(BMC),2017 WL
4217115, at *7(E.D.N.Y. Sept. 20,2017)(citing Keman v. Kurz-Hastings. 175 F.3d 236,241
(2d Cir. 1999)). "To ensure that[Section 302(a)(3)(ii)] is construed in a manner consistent with

federal due process requirements. New York courts require 'tangible manifestations of a
defendant's intent to target New York, or...concrete facts known to the nondomiciliary that

should have alerted it to the possibility of being brought before a court in the Southern District of
New York.'" DH Servs.. LLC v. Positive Impact Inc.. No. 12-CV-6153(RA),2014 WL

496875, at *13(S.D.N.Y. Feb. 5,2014)(alteration in original)(quoting Rovaltv Network,638 F.

Supp. 2d at 424). In other words,the plaintiff must bring to bear "evidence ofa purposeful New
York affiliation, for example, a discernible effort to directly or indirectly serve the New York

market." In re Dental Supplies, 2017 WL 4217115, at *7(quoting Keman, 175 F.3d at 241).
Plaintiff has not met its burden of alleging that Defendants discemibly attempted to serve
the New York market. This case is akin to DH Services, in which the district court was unable to
conclude that the defendant had made a "discernible effort" to serve the New York market

15

because the plaintiff had "not offered any evidence showing that [the djefendant actively
solicited individuals from New York to make online donations or attend its fundraiser events, all

of which were hosted in Atlanta and required individuals to travel to Atlanta to participate."
2014 WL 496875, at *14. Similar to that case, the only connection between Snap's websites and
New York is that the websites can be viewed by users in New York with an internet connection.
rSee Hassan Decl. 113.) Insofar as Snap uses the websites to target users and host events, those

activities largely take place in and are targeted towards "Chicago and the Midwestern United
States,""not New York." (Id. 112; Mem. at 11.) While Plaintiff does allege that Snap
"purposefully solicits customers in New York" and "directly advertises New York based events

to New York customers"(PI. Opp'n 115),these allegations are lacking in any specificity and,
for reasons stated above, do not relate to the subject matter ofthis litigation. [See supra Section

111(A)(2)(a).) Such conclusory allegations cannot support personal jurisdiction imder Section
302(a)(3)(ii). Cf. Mt. Whitnev Invs.. LLLP v. Goldman Morgenstem & Partners Consulting.
LLC,No. 15-CV-4479(ER),2017 WL 1102669, at *5(S.D.N.Y. Mar. 23, 2017)(rejecting
broad allegations under Section 302(a)(3)(ii) as conclusory).

d.

Section 302(a)(4)

Finally, Section 302(a)(4) permits the exercise ofjurisdiction over a foreign defendant
who "owns, uses or possesses any real property situated within" New York. Jurisdiction would
clearly be improper under this section, as "[njeither [Snap] nor [Hassan] owns,leases or

possesses any real property in New York, and Plaintiff does not allege otherwise." (Mem. at 12.)
B.

Jurisdictional Discovery

"It is well settled under Second Circuit law that, even where plaintiff has not made a
prima facie showing of personal jurisdiction, a court may still order discovery, in its discretion.

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when it concludes that the plaintiff may be able to establish jurisdiction if given the opportunity

to develop a full factual record." Leon v. Shmukler. 992 F. Supp. 2d 179,194 (citing, inter alia.
In re Magnetic Audiotape Antitrust Litig., 334 F.3d 204,208(2d Cir. 200311: see Hollins v. U.S.

Tennis Ass'n,469 F. Supp. 2d 67,70-71 (E.D.N.Y. 2006)(collecting cases). "[J]urisdictional
discovery is only appropriate when Plaintiff has asserted 'specific, non-conclusory facts that, if
further developed, could demonstrate substantial state contacts.'" Russo v. Svs. Integrators Inc..

No. 17-CV-4317(DRH),2018 WL 4100493, at *5(E.D.N.Y. Aug. 28,2018)(quoting L^,992
F. Supp. 2d at 195); see Awash v. Bank AI-Madina. No.04-CV-9201 (GEL),2006 WL 587342,
at *5(S.D.N.Y. Mar. 9, 2006)("Such discovery has typically been authorized where the plaintiff
has made a threshold showing that there is some basis for the assertion ofjurisdiction, facts that

would support a colorable claim ofjurisdiction."(alteration adopted)(citation and internal
quotation marks omitted)). The decision to permit jurisdictional discovery is within the
discretion ofthe district court. S^ Leon,992 F. Supp. 2d at 194.

The allegations in Plaintiffs complaint do not warrantjurisdictional discovery. Neither
defendant is domiciled or located in New York. As discussed above. Plaintiffs claim that

Defendants had contacts with New York for the purposes ofthis trademark suit through their

operation ofthe ibid.co and Events.org websites fails as a matter oflaw, not because the factual
record is insufficiently developed. Whafs more. Plaintiff's request for discovery does not
specify what facts it believes could lend credence to its claim ofjurisdiction, instead incorrectly
asserting that the motion to dismiss is "premature" because "[n]o discovery in the instant matter
has been taken." (PI. Opp'n f 33.) Because "Plaintiff has not provided the Court with any
reason to infer that an opportunity to develop the record would be anything other than frivolous,"
Russo,2018 WL 4100493, at *5,the court denies Plaintiffs request for jurisdictional discovery.

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C.

Service of Process

Because the court concludes that it does not have a basis for asserting personal

jurisdiction over either defendant, it need not address the question of whether Plaintiff properly
effected service ofprocess ofthe amended complaint.
IV.

CONCLUSION

For the foregoing reasons, Defendants' motion to dismiss the amended complaint
(Dkt. 21-1) is GRANTED. Plaintiffs amended complaint is DISMISSED WITHOUT
PREJUDICE.
SO ORDERED

s/Nicholas G. Garaufis
Dated: Brooklyn, New York

N CHOLAS G. GARAUFIS

September^ 2018

tfaited States District Judge

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