Shelby v. Bauer Pacific Imports LLC et al

Filing 22

ORDER granting 17 Defendant Paragon, Paradigm, Paradox, Corp.sMotion to Dismiss for Lack of Personal Jurisdiction; Paragon Paradigm Paradox Corp (an Illinois corp) terminated.. Signed by Honorable Robin J. Cauthron on 7/22/15. (lg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ANN SHELBY,
Plaintiff,
v.
BAUER PACIFIC IMPORTS, LLC, a
California limited liability co.;
PARAGON, PARADIGM, PARADOX
CORP. d/b/a Chicago Costume, an
Illinois corp.; and RALPH BUTLER
d/b/a Party Oasis, an individual residing
in California,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. CIV-15-488-C

MEMORANDUM OPINION AND ORDER
Plaintiff filed suit against Defendants alleging they infringed on certain masks for
which she had obtained copyright protection. Defendant Paragon, Paradigm, Paradox, Corp.,
d/b/a Chicago Costume (“Chicago Costume”) seeks dismissal pursuant to Fed. R. Civ. P.
12(b)(2) for lack of personal jurisdiction. Defendant Chicago Costume is based in Chicago,
Illinois, which is also its state of incorporation. It maintains two retail locations and a
shipping warehouse, all located in Chicago. In addition, it operates a commercial interactive
website which is accessible both nation- and worldwide. In support of its Motion to Dismiss,
Chicago Costume notes that it has sold three allegedly infringing masks in the State of
Oklahoma. Two were sold to Plaintiff and the third sold to another individual. Additionally,
it notes that it has very limited business of any type with Oklahoma, providing an affidavit
attesting that its total revenue generated from sales to Oklahoma customers over the last three

years totaled $640.42, .05% of its total revenue in 2012, .12% of 2013 total revenue, and
.16% of 2014 total revenue. Thus, Defendant Chicago Costume avers, its total Oklahoma
revenue was slightly more than one-tenth of one percent of its total revenue.
The concept of personal jurisdiction exists in two forms – general and specific. The
Tenth Circuit described them as follows:
Jurisdiction over a defendant in a suit arising out of or related to the
defendant’s contacts with the forum state is “specific jurisdiction.” In contrast,
when the suit does not arise from or relate to the defendant’s contacts with the
forum and jurisdiction is based on the defendant’s presence or accumulated
contacts with the forum, the court exercises “general jurisdiction.”
Rambo v. Am. S. Ins. Co., 839 F.2d 1415, 1418 (10th Cir. 1988). In order to exercise
general jurisdiction over a defendant, there must be evidence of “continuous and systematic
contacts” with the forum state. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S.
408, 414 nn.8 & 9 (1984). In determining whether a corporation is subject to general
personal jurisdiction in a state other than its state of incorporation or principal place of
business, the question “is not whether a foreign corporation’s in-forum contacts can be said
to be in some sense ‘continuous and systematic,’ it is whether that corporation’s ‘affiliations
with the State are so “continuous and systematic” as to render [it] essentially at home in the
forum State.’” Daimler AG v. Bauman, ___ U.S. ___, 134 S.Ct. 746, 762 (2014) (quoting
Goodyear Dunlop Tires Operations, S.A. v. Brown, ___ U.S. ___, 131 S.Ct. 2846, 2851
(2011)).
Applying these standards, Plaintiff has failed to offer any evidence or argument
demonstrating that Defendant Chicago Costume has the necessary activities within
2

Oklahoma to subject it to general jurisdiction in this state. Indeed, Plaintiff offers no
persuasive argument in her response brief to suggest that general jurisdiction is appropriate
in this case.
Turning to the issue of specific jurisdiction, as noted above, Defendant Chicago
Costume has sold three of the alleged infringing masks to residents of Oklahoma. Two were
to Plaintiff and the other to an individual in Enid. Plaintiff’s purchase of the masks are
insufficient to create specific jurisdiction. The Supreme Court recently held in Walden v.
Fiore, ___ U.S. ___, 134 S.Ct. 1115, 1122 (2014), that “[t]he plaintiff cannot be the only link
between the defendant and the forum.” The single Oklahoma transaction is an isolated
occurrence which is insufficient to support specific jurisdiction. In Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 475 (1985), the Supreme Court stated, “‘some single or occasional
acts’ related to the forum may not be sufficient to establish jurisdiction if ‘their nature and
quality and the circumstances of their commission’ create only an ‘attenuated’ affiliation
with the forum” (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 318 (1945)).
Plaintiff has failed to offer facts or argument supporting the Court’s exercise of the
specific jurisdiction over Defendant Chicago Costume. Rather, the evidence before the Court
demonstrates that, at best, Chicago Costume had a single relevant contact with the state
within the context of the wrongs alleged by Plaintiff’s Complaint. That act is insufficient to
find that Defendant purposefully directed its activities at Oklahoma and that Plaintiff’s
injuries arose out of Defendant’s forum-related activities. Dudnikov v. Chalk & Vermillion
Fine Arts, Inc., 514 F.3d 1063, 1071 (10th Cir. 2008).
3

Finally, even if there were some proof of minimum contacts, the personal jurisdiction
inquiry also demands proof that exercising jurisdiction over Defendant Chicago Costume
would not be in violation of due process. The Tenth Circuit has set out five factors to be
considered in determining the reasonableness of an assertion of personal jurisdiction.
In determining whether exercise of jurisdiction is so unreasonable as to
violate “fair play and substantial justice,” we consider: (1) the burden on the
defendant, (2) the forum state’s interest in resolving the dispute, (3) the
plaintiff’s interest in receiving convenient and effective relief, (4) the interstate
judicial system’s interest in obtaining the most efficient resolution of
controversies, and (5) the shared interest of the several states in furthering
fundamental substantive social policies.
OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1095-96 (10th Cir. 1998).
Considering each of these factors, the Court finds that none weighs in favor of exercising
personal jurisdiction over Defendant Chicago Costume.
For the reasons set forth herein, Defendant Paragon, Paradigm, Paradox, Corp.’s
Motion to Dismiss for Lack of Personal Jurisdiction (Dkt. No. 17) is GRANTED. Plaintiff’s
claims against this Defendant are dismissed for lack of personal jurisdiction.
IT IS SO ORDERED this 22nd day of July, 2015.

4