TailGate Beer, LLC v. Boulevard Brewing Company et al

Filing 75

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Eli J. Richardson on 6/5/2019. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
TAILGATE BEER, LLC,
Plaintiff,
v.
BOULEVARD BREWING COMPANY,
DUVEL MOORTGAT USA, LTD.
Defendants.

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NO. 3:18-cv-00563
JUDGE RICHARDSON

MEMORANDUM OPINION
Before the Court is Boulevard Brewing Company (“Defendant Boulevard”) and Duvel
Moortgat USA, Ltd. (“Defendant Duvel,” and together with Boulevard, “Defendants”)’s Motion
to Dismiss for Lack of Personal Jurisdiction and Improper Venue (Doc. No. 15) and Motion for
Evidentiary Hearing (Doc. No. 27). Plaintiff has responded in opposition to both motions (Doc.
Nos. 21, 29). Defendants replied to the Plaintiff’s opposition to the motion to dismiss (Doc Nos.
62), and Plaintiff filed a sur-reply (Doc. No. 70). For the reasons discussed below, the motion to
dismiss will be granted in part and denied in part, the motion to dismiss for improper venue will
be denied,1 and the motion for an evidentiary hearing will be denied.
FACTUAL BACKGROUND
This is a trademark and copyright infringement lawsuit based on Defendants’ alleged
unauthorized use of the TailGate Beer trademark in its stylized word (the “TailGate Mark”), its
trademark in the original tailgate pickup truck image (the “Pickup Mark” and, together with the

Although Plaintiff’s motion is styled as a motion to dismiss for lack of personal jurisdiction and
improper venue, the motion’s substance appears to reflect, albeit not with ideal clarity, that it is
actually a motion to dismiss for lack of personal jurisdiction and, in the alternative, to transfer
venue to a more convenient forum.
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TailGate Mark, the “Infringed Marks”), and its copyright in the Pickup Mark (the “Infringed
Work”). (Doc. No. 1 (“Compl.”) ¶ 1.) Plaintiff alleges that Defendant Boulevard is a Delaware
corporation, registered to do business in Missouri, and authorized to distribute its beers and
conduct business in Tennessee. (Id. ¶ 11.) Plaintiff alleges that Defendant Duvel is a foreign
business corporation registered in Delaware. (Id. ¶ 12.)
LEGAL STANDARD
Rule 12(b)(2) allows a defendant to file a motion to dismiss for lack of personal
jurisdiction. “The Due Process Clause of the Fourteenth Amendment constrains a State’s authority
to bind a nonresident defendant to a judgment of its courts.” Walden v. Fiore, 134 S. Ct. 1115,
1121 (2014). Where, as here, “a federal court’s subject-matter jurisdiction is based on a federal
question, the court’s exercise of personal jurisdiction must be both authorized by the forum State’s
long-arm statute and in accordance with the Due Process Clause of the Fourteenth Amendment.”
AlixPartners, LLP v. Brewington, 836 F.3d 543, 549 (6th Cir. 2016). Tennessee’s long-arm statute,
Tenn. Code Ann. § 20-2-214, has been interpreted to be “coterminous with the limits on personal
jurisdiction imposed by the Due Process Clause of the United States Constitution, and thus, the
jurisdictional limits of Tennessee law and of federal constitutional due process are
identical.” Intera Corp. v. Henderson, 428 F.3d 605, 616 (6th Cir. 2005) (internal quotation marks
and citation omitted). Unlike for courts in some states, for a Tennessee court it is appropriate to
collapse the two-part jurisdictional inquiry into one part, i.e., the due-process inquiry. EdgeAQ,
LLC v. WTS Paradigm, LLC, No. 3:14-CV-2264, 2015 WL 3453758, at *3 (M.D. Tenn. May 29,
2015) (quoting Grober v. Mako Prods., Inc., 686 F.3d 1335, 1345 (Fed. Cir. 2012)).
Personal jurisdiction comes in two forms: general and specific. Bristol-Myers Squibb Co.
v. Superior Court of Cal., S.F. Cnty., 137 S. Ct. 1773, 1780 (2017). General jurisdiction allows a

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plaintiff to sue a defendant on all claims regardless of the connection between the claim and the
forum. See Daimler AG v. Bauman, 571 U.S. 117, 137 (2014). For the Court to have general
jurisdiction over a corporation, there must be continuous and systematic contacts such that a
corporation is “essentially at home” in the forum state. Daimler, 571 U.S. at 138-39. With respect
to a corporation, the place of incorporation and principal place of business are the paradigm bases
for general jurisdiction. Id. General jurisdiction may exist even where the forum state is neither
the place of incorporation nor the principal place of business; however, these cases are “truly
‘exceptional’” and must be based on more than just “sizeable” sales. See id. at 139; Brown, 814
F.3d at 627.
In contrast, specific jurisdiction must arise out of or relate to the defendant’s contacts with
the forum—principally an activity or occurrence that takes place in the forum state. Bristol-Myers,
137 S. Ct. at 1780. Under the constitutional due process analysis, for specific jurisdiction to exist:
(1) the defendant must purposefully avail himself of the privilege of acting in the forum state or
causing a consequence in the forum state; (2) the cause of action must arise from the defendant’s
activities there; and (3) 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 personal
jurisdiction over the defendant reasonable. Means v. United States Conference of Catholic Bishops,
836 F.3d 643, 649 (6th Cir. 2016) (quoting Southern Machine Co. v. Mohasco Indus., Inc., 401
F.2d 374, 381 (6th Cir. 1968)); Intera, 428 F.3d at 615.
Where, as here, the motion to dismiss for lack of personal jurisdiction is supported by
affidavits, Plaintiff may not stand on its pleading but must, by affidavit or otherwise, set forth
specific facts showing that the court has jurisdiction. Carrier Corp. v. Outokumpu Oyj, 673 F.3d
430, 449 (6th Cir. 2012). Plaintiff’s burden is relatively slight. Id. The Court will not weigh

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controverting assertions and will view the facts in a light most favorable to Plaintiff. Id.;
CompuServe, 89 F.3d at 1262. “Dismissal in this procedural posture is proper only if all the specific
facts which the plaintiff . . . alleges collectively fail to state a prima facie case for
jurisdiction.” CompuServe, 89 F.3d at 1262.
DISCUSSION
I.

General Personal Jurisdiction
A. Defendant Boulevard
As discussed above, for corporations, general jurisdiction is typically available only in a

Defendant’s place of incorporation and principal place of business. The parties do not appear to
dispute that Boulevard is a Delaware corporation (Compl. ¶ 11) with its principal place of business
in Missouri (Doc. No. 16-1 at 2). Therefore, for the Court to have general personal jurisdiction
over Defendant, as discussed above, Plaintiff must set forth specific facts showing that Defendant’s
affiliations with Tennessee are so continuous and systematic as to render it essentially at home in
Tennessee. See Daimler AG, 571 U.S. at 127. Plaintiff’s assertions and evidence fail to meet its
slight burden.
To support its assertion that the Court has general personal jurisdiction over Defendant
Boulevard, Plaintiff discusses the following: (1) a May 4, 2017 posting on Defendant Boulevard’s
website stating that it would use four wholesalers to distribute its brands in various territories
throughout Tennessee (Doc. No. 21-4 at 3); (2) an April 2, 2018 press release indicating that its
beers will soon appear in greater Memphis and northwest Tennessee (Doc. No. 21-5 at 3); (3)
Boulevard’s website, which has a “beer finder” revealing continuous and systematic contacts
throughout Tennessee (Doc. No. 21 at 21); and (4) the Tennessee Department of Revenue’s
website reflecting the registration of 26 Boulevard beers (Id. at 22). The Court finds these

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“contacts” insufficient to make Defendant Boulevard essentially “at home” in Tennessee. For
example, Plaintiff does not contend that Defendant’s senior management decisions are made in
Tennessee, that Defendant owns or operates facilities in Tennessee, or that Defendant has officers
or employees in Tennessee.
Moreover, the mere existence of “continuous and systematic” contacts, which the Plaintiff
consistently references, is no longer sufficient. In Ramsey v. Greenbush Logistics, Inc., 263 F.
Supp. 3d 672 (M.D. Tenn. 2017), Chief Judge Crenshaw aptly discusses the state of the law related
to general jurisdiction post-Daimler:
“[i]n recent years the Supreme Court has clarified and, it is fair to
say, raised the bar for this type of jurisdiction.” Kipp v. Ski Enter.
Corp. of Wisc, Inc., 783 F.3d 695, 698 (7th Cir. 2015) (citation
omitted). “Any additional candidates [beyond the principal place of
business or state of incorporation] would have to meet the stringent
criteria laid out in Goodyear and Daimler, which require more than
the ‘substantial, continuous, and systematic course of business’ that
was once thought to suffice.” Id.; see Brown v. Lockheed Martin
Corp., 814 F.3d 619, 626 (2d Cir. 2016) (concluding that, although
plaintiff’s arguments regarding general jurisdiction “might have
sufficed under the more forgiving standard that prevailed in the past,
[plaintiff’s] contacts fail to clear the high bar set by Daimler to a
state’s exercise of general jurisdiction over a foreign
corporation”); Patterson v. Aker Sols. Inc., 826 F.3d 231, 237 (5th
Cir. 2016) (citing Goodyear and Daimler for the proposition that
“[s]cholars have viewed the Court’s recent personal jurisdiction
decisions as part of an access-restrictive trend”).
Id. at 677. Accordingly, Plaintiff’s assertions and evidence related to Defendant Boulevard’s
“continuous and systematic” activities do not allow the Court to exercise general personal
jurisdiction over Defendant Boulevard.2

Because the Court does not find Plaintiff’s argument regarding continuous and systematic
contacts persuasive based on the applicable case law, it declines to address Defendant Boulevard’s
additional factual arguments regarding the evidence Plaintiff presents and whether Defendant
Boulevard sells any beer in Tennessee.
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Plaintiff also argues that Defendant Boulevard is subject to general personal jurisdiction
based on the contacts or presence of its agents in Tennessee. Even if the Court assumes that the
presence of such agents in Tennessee could, under the case law, be enough to provide general
jurisdiction, the Court finds Plaintiff’s argument insufficient. Plaintiff discusses Boulevard’s
relationships with distributors. However, the Court cannot assume that these distributors are agents
of Boulevard (rather than mere counterparties to distribution contracts with Boulevard), and
Plaintiff presents no evidence that they are. Plaintiff, therefore, has failed to meet its relatively
slight burden to set forth facts showing that the Court has general personal jurisdiction over
Defendant Boulevard.
B. Defendant Duvel
Plaintiff argues that the Court has general personal jurisdiction over Defendant Duvel
based on an alter-ego theory. “The alter-ego theory provides for personal jurisdiction if the parent
company exerts so much control over the subsidiary that the two do not exist as separate entities
but are one and the same for purposes of jurisdiction.” Indah v. United States Sec. and Exchg.
Comm’n, 661 F.3d 914, 921 (6th Cir. 2011) (internal quotation marks omitted). Plaintiff
specifically argues that based on this theory, “Duvel is subject to jurisdiction in Tennessee to the
same extent that Boulevard is subject to jurisdiction.” (Doc. No. 21 at 24.) Without making a
finding as to whether Defendant Duvel is the alter-ego of Defendant Boulevard, the Court follows
Plaintiff’s logic and finds that it does not have general personal jurisdiction over Defendant Duvel,
because it does not have general personal jurisdiction over Defendant Boulevard.

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II.

Specific Personal Jurisdiction
A. Defendant Boulevard
To establish specific personal jurisdiction, Plaintiff must show that Defendant Boulevard

satisfies the requirements of constitutional due process as set forth in Mohasco’s three-prong test
discussed above. The Court discusses below whether Plaintiff has met its burden as to each
prong.
1. Purposeful Availment
Purposeful availment is present where the “defendant’s contacts with the forum state
proximately result from actions by the defendant himself that create a substantial connection with
the forum.” Means v. United States Conf. of Catholic Bishops, 836 F.3d 643, 649 (6th Cir. 2016).
When a website is involved in the personal-jurisdiction analysis, the Sixth Circuit has used the
sliding scale approach from Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124
(W.D. Pa. 1997). Cadle Co. v. Schlichtmann, 123 F. App’x 675, 678 (6th Cir. 2005). The approach
“distinguishes between interactive websites . . . and websites that are passive . . . Interactive
websites can subject the defendant to specific personal jurisdiction, whereas passive websites are
less likely to confer such jurisdiction.” Id.3 As Zippo states, “At one end of the spectrum are
situations where a defendant clearly does business over the Internet . . . At the opposite end are
situations where a defendant has simply posted information on an Internet Web site which is
accessible to users in foreign jurisdictions.” Id.

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The Court believes that the suitability of the Zippo test should be revisited by the Sixth Circuit
to determine whether it is outdated and should be revised given the rise of e-commerce. But of
course the Court is bound to follow Sixth Circuit precedent and therefore will not reexamine the
Zippo test on its own.
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Plaintiff discusses several pieces of evidence that it argues satisfy the purposeful availment
prong. The Court finds Defendant Boulevard’s website and its characteristics to be the most
persuasive. Plaintiff has a website that is on the interactive end of the spectrum—allowing
Tennessee residents to purchase apparel, pub-ware, and other items through its online gift shop.
(Doc. No. 16-1 ¶¶ 32-39.) Tennessee residents have in fact purchased items on the website. (Id. ¶¶
34, 38.) See Silent Events, Inc. v. Quiet Events, Inc., No. 3:16-CV-00716, 2016 WL 4466657, at
*3 (M.D. Tenn. Aug. 24, 2016) (“[W]hen this Court has found specific jurisdiction based on the
interactivity of a defendant’s website, it has been because the website was not only capable of
interactivity, but also had actually supported business in Tennessee.”). Even though Defendant
Boulevard’s sales to Tennessee residents may be relatively small in number (especially when
compared to its overall online sales volume), Defendant Boulevard has sold items to Tennessee
residents and remains ready to do business with customers in Tennessee. See Bird v. Parsons, 289
F.3d 865, 875 (6th Cir. 2002) (“Although it is unclear whether registrants who use Dotster’s
website do so on a repeated basis, the proffered evidence that Dotster regularly chooses to do
business with Ohio residents is sufficient to constitute purposeful availment.”) (citing Zippo, 952
F. Supp. at 1126-27).4 The Court, therefore, finds that Plaintiff has met his prima facie showing
on the first element of the Mohasco test. See Word Music v. Priddis Music, No. 3:07-0502, 2007

Defendants argue that the purchase of the set of glasses “just happened to” contain one glass
bearing the pickup truck mark and therefore there was no purchase from Boulevard’s website that
was specific to merchandise with the allegedly infringing mark. (Doc. No. 62 at 13.) Defendants
so argue at least in part to counter what they deem a wrongful accusation by Plaintiff regarding
Defendants’ representation as to the nature of Boulevard’s website. But to the extent that this is
also intended as an argument on the merits, it fails to persuade the Court. Defendants provide no
explanation as to relevance, to the substantive issues to be decided at this stage, of the purportedly
happenstance nature of the purchase of the item with the allegedly infringing mark. Moreover,
Defendants provide no evidence in support of the assertion that the purchase was not made to
obtain the glass bearing the allegedly infringing mark, and the Court is required to view the
evidence in the light most favorable to Plaintiff.
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WL 3231835, at *7 (M.D. Tenn. Oct. 30, 2007) (finding purposeful availment based on the
interactivity and accessibility of the website, and the fact that at least one forum state resident
purchased and received the product from the website and was then further solicited by the
defendant to order more product).5
2. Arising From
Defendant Boulevard argues that Plaintiff fails to satisfy the second requirement—that the
causes of action arise from Defendant Boulevard’s activities in the forum. “If a defendant’s
contacts with the forum state are related to the operative facts of the controversy, then an action
will be deemed to have arisen from those contacts.” CompuServe, Inc. v. Patterson, 89 F.3d 1257,
1267 (6th Cir. 1996). This factor “does not require that the cause of action formally ‘arise from’
defendant’s contacts with the forum; rather, this criterion requires only ‘that the cause of action,
of whatever type, have a substantial connection with the defendant’s in-state activities.’” Third
Natl. Bank in Nashville v. WEDGE Group, Inc., 882 F.2d 1087, 1091 (6th Cir. 1989)
(quoting Mohasco, 401 F.2d at 384 n. 27); see also Bird, 289 F.3d at 875 (stating that a lenient
standard applies when evaluating the “arising from” criterion).
The Court first notes that Plaintiff does not appear to base the second requirement of its
prima facie showing of specific personal jurisdiction on Defendant Boulevard’s sale of pale ale
beer in Tennessee. See Doc. No. 21 at 14 (“The issue, however, is not about the sale of Pale Ale
beer in Tennessee, but Defendants’ use of the Infringing Pale Ale Image regardless of the product
on which that image appears.”). Rather, Plaintiff provides the following evidence and assertions
to show satisfaction of this requirement: (1) Defendant Boulevard is in the business of selling

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Because the Court finds that Plaintiff has met its prima facie showing of purposeful availment
on the aforementioned basis, it declines to address Plaintiff’s argument about the Calder effects
test. See Calder v. Jones, 465 U.S. 783 (1984).
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products containing the infringing pale ale image; (2) Defendant Boulevard, by its own admissions,
has sold products with the infringing pale ale image in Tennessee; (3) Defendant Boulevard
“stands willing and ready to sell products” with the infringing pale ale image to residents of
Tennessee; and (4) for sale on Boulevard’s website are six products featuring the infringing pale
ale image. (Doc. No. 16-1 ¶ 38; Doc. No. 21-6.)
Courts have held that such activity is sufficient to satisfy the “arising from” prong. See,
e.g., Chanel, Inc. v. Huang Cong, No. 10-2086, 2011 WL 6180029, at *4-5 (W.D. Tenn. Dec. 8,
2011) (holding that the “arising from” prong was met based on an interactive websites and sales
of products with the infringing trademarks to Tennessee residents through those websites); Word
Music, LLC v. Priddis Music, Inc., No. 3:07CV0502, 2007 WL 3231835, at *9 (M.D. Tenn. Oct.
30, 2007) (holding that Plaintiffs’ claims “arise from” Priddis Music’s contacts with Tennessee
because Plaintiffs’ claims of copyright violation stem from Priddis Music’s operation of its
website); First Tenn. Nat. Corp. v. Horizon Nat. Bank, 225 F. Supp. 2d 816, 821 (W.D. Tenn.
2002) (“Horizon’s contacts with Tennessee and First Tennessee’s allegations stem in part from
Horizon’s operation of an interactive website that exhibits the alleged infringement. Therefore, the
operative facts are at least marginally related to the alleged contacts between defendant and
Tennessee. Accordingly, First Tennessee’s claims arise from Horizon’s contacts with Tennessee.”
(internal quotation marks, alteration, and citation omitted)).6 Thus, in light of the lenient standard
that applies, the Court finds that Plaintiff has satisfied its prima facie showing that Defendant

Contrary to Defendants’ assertion, the Court further notes that a single event or transaction in the
forum state has been deemed sufficient to satisfy the “arising from” prong in some circumstances.
See Fruit of the Loom, Inc. v. En Garde, LLC, No. 1:17-CV-00112GNSHBB, 2017 WL 3671322,
at *6 (W.D. Ky. Aug. 25, 2017) (“Courts have repeatedly held that as little as a single transaction
can establish purposeful availment, particularly in cases involving a non-resident seller and a
resident buyer.”) This is one of those circumstances.
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Boulevard’s contacts with Tennessee are related to the operative facts in this case such that the
case “arises from” these contacts.
3. Substantial Enough Connection with the Forum State to Make the Exercise
of Personal Jurisdiction Over Defendant Reasonable
If prongs one and two of the Mohasco test are satisfied, the Court can infer that the
reasonableness prong is satisfied as well. Intera Corp. v. Henderson, 428 F.3d 605, 618 (6th Cir.
2005); see also Susan McKnight, Inc. v. United Indus. Corp., 273 F. Supp. 3d 874, 888 (W.D.
Tenn. 2017) (“If the court finds the plaintiff has established the first two prongs of the specific
jurisdiction inquiry, the burden shifts to the defendant to ‘present a compelling case that the
presence of some other considerations would render jurisdiction unreasonable.’” (quoting Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 476-77 (1985))). “The burden on the defendant to meet
this prong is high and in general such findings are limited to rare situations ‘where the plaintiff’s
interest and the state’s interest in adjudicating the dispute in the forum are so attenuated that they
are clearly outweighed by the burden of subjecting the defendant to litigation within the forum.’”
Susan McKnight, 273 F. Supp. 3d at 888 (quoting Beverly Hills Fan Co. v. Royal Sovereign Corp.,
21 F.3d 1558, 1568 (Fed. Cir. 1994)). The following five factors that are relevant in determining
the reasonableness of personal jurisdiction: (1) the burden on the defendant; (2) the forum state’s
interest in adjudicating the dispute; (3) the plaintiff’s interest in obtaining 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. Id. (internal quotation marks and citation omitted).
The Court finds that Defendant Boulevard has failed to meet this high standard. Defendant
Boulevard does not contest that the third factor weighs in Plaintiff’s favor and states that the fifth
factor is neutral. As to the first factor, Defendant Boulevard fails to adequately explain how
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litigating this case in Tennessee would impose a burden on it. Defendant states that several
witnesses in this case are domiciled outside the United States, which will cause substantial
inconvenience. Yet, Defendant fails to explain why this inconvenience is unique to Tennessee; a
similar inconvenience would appear to exist for many and perhaps most states within the United
States. As to the second factor, Tennessee has an interest in protecting a company, such as Plaintiff,
whose principal place of business is in Tennessee.7 See Air Prod. & Controls, Inc. v. Safetech Int’l,
Inc., 503 F.3d 544, 555 (6th Cir. 2007) (“Michigan clearly has an interest in protecting a
company whose principal place of business is located in Michigan.”). Finally, as to the fourth
factor, the Court has not been shown why a more efficient resolution of this controversy would
occur outside Tennessee. The Court, therefore, finds that the third element of the Mohasco test is
satisfied as to Defendant Boulevard. Accordingly, Defendant Boulevard’s motion to dismiss for
lack of personal jurisdiction will be denied.
B. Defendant Duvel
Plaintiff argues that Defendant Duvel, as the parent of Defendant Boulevard, should also
be subject to personal jurisdiction in Tennessee because Defendant Duvel is the alter-ego of
Defendant Boulevard. “Sixth Circuit precedent is not entirely clear regarding how to apply
the alter-ego theory of personal jurisdiction to federal claims.” Anwar v. Dow Chem. Co., 876 F.3d
841, 848 n.2 (6th Cir. 2017). The Sixth Circuit appears to consider several facts when determining
if a subsidiary is merely an alter-ego of the parent company, including whether the following
circumstances exist: (1) sharing the same employees and corporate officers; (2) engaging in the
same business enterprise; (3) having the same address and phone lines; (4) using the same assets;

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This is not to say, the Court recognizes and takes to heart, that Tennessee has an interest in
protecting a Tennessee company inappropriately, via the proverbial “home cooking,” at the
expense of an out-of-state party opponent.
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(5) completing the same jobs; (6) not maintaining separate books, tax returns, and financial
statements; and (7) exerting control over the daily affairs of another corporation. Id. at 849.
The Court notes that Plaintiff fails to point to evidence in the record that Defendant Duvel
is the parent company of Defendant Boulevard. In fact, the record suggests the opposite. Defendant
Boulevard’s business entity disclosure statement states that Duvel Moortgat NV is the parent (and
by all indications the only parent) of Defendant Boulevard . (Doc. No. 13.) Furthermore, even
assuming arguendo that a parent-subsidiary relationship existed, the evidence Plaintiff provides
does not come close to establishing that Defendant Duvel is the alter-ego of Defendant Boulevard
under the previously discussed Sixth Circuit standard. The only facts Plaintiff discusses that would
tend to support that Defendant Duvel is the alter-ego of Defendant Boulevard is that they share the
same corporate officers and have the same principal place of business or corporate headquarters.8
This is insufficient. See Holbrook v. Mazda Motor Corp., No. CV 6:17-244-DCR, 2018 WL
1571905, at *9 (E.D. Ky. Mar. 30, 2018) (“Similarly, the plaintiffs’ allegations in this case that
entities with the Daciel Group share a corporate brand, research and development resources, two
officers and directors, and are generally a part of a common enterprise, are insufficient to
demonstrate that DC and DSS ‘exert[ ] so much control’ over DSSA ‘that [they] do not exist as
separate entities but are one and the same for purposes of jurisdiction.’”). Accordingly, the Court
grants Defendant Duvel’s motion to dismiss for lack of personal jurisdiction and dismisses the
claims against Defendant Duvel without prejudice.9
III.

Jurisdictional Discovery and Evidentiary Hearing

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The Court notes that Defendants dispute that Defendant Duvel and Defendant Boulevard have
the same headquarters and principal place of business. (See Doc. No. 62 at 10.)
The Court declines to address Defendants’ argument that most of the Keegan Declaration should
be disregarded, because the Court does not rely on it herein.
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Plaintiff has made a request (to which Defendants have not objected) that the Court order
the parties to have additional discovery on the issue of personal jurisdiction.10 However, the parties
do not specifically explain what type of discovery they wish to obtain. They do not specify what
documents or other materials that they suspect might be in other party’s possession that would
shed light on the issue of personal jurisdiction. A district court enjoys broad discretion in managing
discovery. See Ghandi v. Police Dep’t of City of Detroit, 747 F.2d 338, 354 (6th Cir. 1984). The
Court will not allow the parties to conduct a fishing expedition into this issue, especially when the
Court is presently capable of determining whether it can exercise of personal jurisdiction over
Defendants based on the information (or lack thereof) currently before it. Accordingly, the Court
will deny the parties request for additional jurisdictional discovery. See Surles v. Greyhound Lines,
Inc., 474 F.3d 288, 305 (6th Cir. 2007) (“Although a plaintiff should not be denied access to
information necessary to establish her claim, neither may a plaintiff be permitted to go fishing . .
.” (internal quotation marks and citation omitted)).
The Court also denies Defendants’ motion for an evidentiary hearing. “[I]f the district court
concludes that the written submissions have raised issues of credibility or disputed issues of fact
which require resolution, it may conduct a preliminary evidentiary hearing.” Welsh v. Gibbs, 631
F.2d 436, 439 (6th Cir. 1980). Although the Defendants state in a conclusory fashion that there are
issues of credibility and disputed issues of fact, they fail to specifically point out credibility issues
or genuine issues of fact that require resolution. Therefore, there is no basis for concluding that an
evidentiary hearing would be fruitful, and the motion will be denied.
IV.

Venue

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The Court notes that Plaintiff requests jurisdictional discovery only to the extent the Court
determines that the documents currently before it are not sufficient to determine the issue. (Doc.
No. 29 at 3-4.)
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Defendants argue that if the case is not dismissed for lack of subject matter jurisdiction,
the court should transfer it to another district. The standard for transfer of venue to a more
convenient forum is found in 28 U.S.C. § 1404(a), which provides: “[f]or the convenience of
parties and witnesses, in the interest of justice, a district court may transfer any civil action to any
other district or division where it might have been brought.” 28 U.S.C. § 1404(a). “The onus of
showing that a plaintiff’s choice of forum is unnecessarily burdensome falls on the
defendant.” Heffernan v. Ethicon Endo-Surgery Inc., 828 F.3d 488, 498 (6th Cir. 2016). Unless
the balance is strongly in favor of the defendant, a plaintiff’s choice of forum should rarely be
disturbed. Reese v. CNH America LLC, 574 F.3d 315, 320 (6th Cir. 2009). A defendant must make
a clear and convincing showing that the balance of convenience strongly favors the alternate
forum. See Doe v. United States, No. 3:16-cv-0856, 2017 WL 4864850, at *2 (M.D. Tenn. Oct.
26, 2017) (citing Flores v. United States, 142 F. Supp. 3d 279, 287 (E.D.N.Y. 2015)).
In reviewing a motion to transfer, the court balances case-specific factors, including the
private interests of the parties and public-interest concerns, such as systemic integrity and fairness.
See Reese, 574 F.3d at 320. Private interests include the location of willing and unwilling
witnesses, the residence of the parties, the location of sources of proof, the location of the events
that gave rise to the dispute, systemic integrity and fairness, and the plaintiff’s choice of
forum. Sacklow v. Saks Inc., No. 3:18-CV-00360, 2019 WL 1986763, at *3 (M.D. Tenn. May 6,
2019) (citing Stewart v. American Eagle Airlines, Inc., No. 3-10-00494, 2010 WL 4537039, at *2
(M.D. Tenn. Nov. 3, 2010)). Public interests include, inter alia, the enforceability of the judgment,
practical considerations affecting trial management, docket congestion, local interest in deciding
local controversies at home, and familiarity of the trial judge with the applicable state law. Smith,

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578 F. Supp. 2d at 962. A district court “has broad discretion to grant or deny a motion to transfer
[a] case.” Phelps v. McClellan, 30 F.3d 658, 663 (6th Cir. 1994).
To support their argument that the case should be transferred to the District of Delaware,
Defendant assert only that the sole forum common to both Defendants is Delaware. Without more,
Defendants have failed to meet their substantial burden to show that the Court should transfer this
case to the District of Delaware. Accordingly, the motion to transfer the case to the District of
Delaware will be denied.
V.

Forum Non Conveniens
Defendants argue that if (as in fact is the case here) the Court finds it has personal

jurisdiction over one but not both Defendants, the Court should transfer the case (with its one
remaining Defendant) to the District of Delaware under the doctrine of forum non conveniens.
“Under the common law doctrine of forum non conveniens, a district court may decline to exercise
its jurisdiction, even though the court has jurisdiction and venue, when it appears that the
convenience of the parties and the court and the interests of justice indicate that the action should
be tried in another forum.” Rustal Trading US, Inc. v. Makki, 17 F. App’x 331, 335 (6th Cir. 2001)
(quotation marks omitted). When a plaintiff initiates a suit in his home forum, that choice is
normally entitled great deference because it is presumptively convenient for the plaintiff. Zions
First Nat’l Bank v. Moto Diesel Mexicana, S.A. de C.V., 629 F.3d 520, 523-24 (6th Cir. 2010). “In
general, the standard of deference for a plaintiff’s choice of a home forum permits dismissal only
when the defendant ‘establishes such oppressiveness and vexation to a defendant as to be out of
all proportion to plaintiff’s convenience, which may be shown to be slight or nonexistent.’” Duha
v. Agrium, Inc., 448 F.3d 867, 873-74 (6th Cir. 2006) (quoting Koster v. (Am.) Lumbermens Mut.
Cas. Co., 330 U.S. 518, 524 (1947)) (alterations omitted). A district court’s forum non conveniens

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determination is reviewed under an abuse of discretion standard. Piper Aircraft Co. v. Reyno, 454
U.S. 235, 257 (1981).
Here, because Plaintiff has initiated suit in its home forum, the Court affords great
deference to its choice. Defendants have not established that Plaintiff’s chosen forum is
unnecessarily burdensome based on public and private interests. Defendants also have not come
close to establishing oppressiveness and vexation out of all proportion to Plaintiff’s convenience.
Defendants request that the Court transfer this case to the District of Delaware merely to avoid
potential duplicative litigation and the potential inconsistent results from lawsuits pending in two
forums (by which Defendants are apparently referring to the possibility of one case in this district
against one Defendant and a potential separate case in Delaware against the other Defendant).
Absent other factors, the possibility of a suit here against Boulevard and a suit in Delaware against
Duvel does not meet the standard of “unnecessarily burdensome” contemplated by the doctrine of
forum non conveniens. Accordingly, the Court will deny Defendants’ motion to transfer the case
to the District of Delaware under the doctrine of forum non conveniens.
CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss for Lack of Personal Jurisdiction
and Improper Venue (Doc. No. 15) will be GRANTED IN PART and DENIED IN PART. The
motion will be GRANTED as to Defendant Duvel for lack of personal jurisdiction. Such a
dismissal is not one based on the merits. See, e.g., Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574,
584 (1999). Therefore, the dismissal must be without prejudice. Nafziger v. McDermott Intern.,
Inc., 467 F.3d 514, 520 (6th Cir. 2006). Defendant Duvel, accordingly, will be DISMISSED
WITHOUT PREJUDICE. The motion will be DENIED in all other respects. Defendant

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Boulevard will remain in the case. The Court will also DENY Defendants’ Motion for Evidentiary
Hearing (Doc. No. 27).
An appropriate order will be entered.

____________________________________
ELI RICHARDSON
UNITED STATES DISTRICT JUDGE

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