United States District Court for
the Middel District of Pennsyslvania
Decided
October
2, 2002
M E M O R A N D U M
BACKGROUND:
This case involves a determination of personal
jurisdiction over nonresident defendants that operate on the Internet.
Plaintiff Accuweather, Inc. is suing defendants Weather Solutions, L.L.C., Secure
Developer Network, Inc., and related entities for trademark infringement. Weather
Solutions and Secure Developer have been operating websites that advertise their
services to anyone who visits the sites. Accuweather complains that defendants have
improperly registered the domain name totalwx.com and have illegally used
the marks "Accu-Weather" and "Weather" in association with a website
located at the address totalwx.com.
Defendants move under Federal Rule of Civil
Procedure 12(b)(2) to dismiss or transfer the case for lack of personal
jurisdiction. According to defendants, because the websites are not sufficiently
interactive with Pennsylvania users and because no defendant has the requisite ties to
Pennsylvania, personal jurisdiction is lacking. W e agree with defendants that they do
not have the minimum contacts with Pennsylvania that are necessary to impose
personal jurisdiction. Rather than dismiss the case, we will transfer it to the
Western District of Oklahoma.
DISCUSSION:
I. STANDARD OF REVIEW
"Once it is challenged, the burden rests
upon the plaintiff to establish personal
jurisdiction." General Electric Co.
v. Deutzag, 270 F.3d 144, 150 (3d Cir. 2001)
(citation omitted). A court must take
"specific analytical steps" when determining whether it can assert personal
jurisdiction over a nonresident defendant. Pennzoil Products Co. v. Colelli &
Assoc., Inc., 149 F.3d 197, 200 (3d Cir. 1998). Under Federal Rule of Civil Procedure
4(k)(1)(A) (which in 1993 displaced Rule 4(e)), a federal court may
exercise personal jurisdiction over a defendant in the manner provided by the law of
the state in which the district court sits. The forum state in this case is
Pennsylvania. Under Pennsylvania’s long-arm statute, 42 P.S. § 5322, Pennsylvania courts may
exercise personal jurisdiction over nonresident defendants "‘to the
constitutional limits of the [D]ue [P]rocess [C]lause of the [F]ourteenth
[A]mendment.’"
Pennzoil, 149 F.3d at 200 (quoting Mellon Bank (East) PSFS, National Assoc v. Farino,
960 F.2d 1217, 1221 (3d Cir. 1992)).
Accordingly, when considering
Pennsylvania’s long-arm statute, "‘[a] court’s inquiry is solely whether the exercise
of personal jurisdiction over the defendant would be
constitutional.’"
Renner v. Lanard, 33 F.3d 277, 279 (3d Cir. 1994).
Under constitutional principles, "[p]ersonal
jurisdiction may be either general or specific." Deutzag, 270 F.3d at
150. "A defendant is subject to general jurisdiction when it has continuous and
systematic contacts with the forum state." Id.
(citing Helicopteros Nacionales de Colombia,
S.A. v. Hall, 466 U.S. 408, 414-16 (1984)). "Specific jurisdiction is
established when a non-resident defendant has ‘purposefully directed’ his
activities at a resident of the forum and the injury arises from or is related to those
activities." Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472
(1985)).
II. STATEMENT OF FACTS
The following facts are gleaned from Accuweather’s
amended complaint and the affidavits accompanying the 12(b)(2)
motion. The defendants named in the amended complaint are Total Weather, Inc.;
True Weather, Inc.; Weather Solutions, L.L.C.; Secure Developer Network,
Inc.; Host Master; and individual defendants Jon Fowler and Mark Valentin. Their
respective roles in the case will be set forth
below.
Weather Solutions provides software to local
television news stations and weather broadcasters. The software enables
broadcasters to provide breaking news and weather content to viewers through the
viewers’ personal computer desktops. After a broadcaster installs the software created
by Weather Solutions, the broadcaster can access Weather Solutions’s
computer server through an Internet portal at the name totalwx.com. After
access, the broadcaster can download or place breaking news and weather on the server. To
receive this service from the broadcaster, viewers download the necessary
software from the broadcaster’ s website. The individual broadcasters
independently brand, market, and provide this breaking news and information to their
viewers. The individual viewers have no contractual relationship with Weather
Solutions, and the viewers are given no indication that the broadcasters are using
Weather Solutions’s software or domain name.
Weather Solutions operates its own website at the
address trueweather.com. The website is a source of information concerning
Weather Solutions and its services, but Weather Solutions does not transact
any business through the website. Visitors to the website are unable to purchase
any products or services from Weather
Solutions. Visitors to the website cannot
make purchases; they can only
(1) download and print information concerning
Weather Solutions’s services; and
(2) send e-mails to Weather Solutions through the
website. Weather Solutions has never operated this website or any website at the
domain name totalwx.com. Weather Solutions was created on February 4,
2002, when it acquired an existing company, Secure Developer. The conduct
outlined in the complaint is attributable also to Weather Solutions’s
predecessor, Secure Developer. On September 20, 2001, Fowler, in his capacity as an
officer of Secure Developer, registered the domain name totalwx.com. This
domain name was registered for the benefit of and use by Secure Developer for a
website located at that web address. The website was substantially similar to the
current Weather Solutions website, just as Secure Developer’s functions were
substantially similar to the current functions of Weather
Solutions. Neither Weather Solutions nor Secure Developer
has any direct ties to Pennsylvania; both are incorporated and have a
principal place of business in Oklahoma. Neither is licensed in Pennsylvania,
neither has an office in Pennsylvania, neither has property in
Pennsylvania, and neither has done business with any Pennsylvania resident or
company.
Secure Developer, though, has had limited contact
with Pennsylvania entities. On two occasions, representatives of
Secure Developer went to Pennsylvania to meet with representatives from
Pennsylvania television stations regarding Secure Developer’s services. No
contracts or agreements were reached. Fowler and Valentin are both affiliated with
Weather Solutions. Both are from Oklahoma and individually have no connection
with Pennsylvania. Total Weather and True Weather, both of which are named
as defendants, are no independent legal entities but rather are
business names under which Weather Solutions and Secure Developer have done
business. Host Master is a company that assists individuals and businesses with the
registration of domain names and the creation and hosting of websites. It was used
solely to secure the domain name totalwx.com.
III. ANALYSIS
It is clear – and Accuweather does not dispute
– that general jurisdiction over any defendant is lacking. No corporate
entity or individual has the type of "continuous and systematic" contacts
with Pennsylvania that would justify this court’s assertion of general
jurisdiction. What remains is the determination of specific
jurisdiction. "To make a finding of specific jurisdiction, a court
generally applies two standards, the first mandatory and the second discretionary."
Pennzoil, 149 F.3d at 201. "First, a court must determine whether the
defendant had the minimum contacts with the forum necessary for the
defendant to have ‘reasonably anticipate[d] being haled into court
there.’"
Id. (quoting World-Wide Volkswagen Corporation v. Woodson, 444 U.S. 286, 297
(1980)). "The issue of minimum contacts is rather fact-sensitive in that it
turns on the ‘quality and nature of a defendant’s activity [in relation to the forum
state].’" Id. at 203 (quoting Max Daetwyler Corporation v. R. Meyer, 762 F.2d 290,
298 (3d Cir. 1985). "Nonetheless, despite the difficulty in
formulating bright-line rules in this area, some basic precepts have evolved in the
assessment of minimum contacts. For example, if a nonresident defendant’s contact
with the forum is simply ‘fortuitous’ or ‘the result of a single transaction,’ the
minimum-contacts requirement has not been
satisfied." Id. (quoting Max Daetwyler,
762 F.2d at 295). "A finding of minimum contacts demands the demonstration of
some act by which the defendant purposely
avail[ed] itself of the privilege of
conducting business within the forum State, thus invoking the protection and benefits
of its laws." Id. (citations and internal quotation m arks
omitted).
"[A]ssuming minimum contacts have been
established, a court may inquire whether the assertion of personal jurisdiction
would comport with fair play and substantial
justice." Id. at 201 (citations
and internal quotation m arks omitted). Although this standard may be applied at a court’s
discretion, the Third Circuit generally encourages its u se. Id. (citing
Farino, 960 F.2d at 1222; Mesalic v. Fiberfloat Corporation, 897 F.2d 696, 701-02 (3d
Cir. 1990)). In analyzing an Internet-based defendant’s
minimum contacts, "[a] court must assess the nature and quality of [the]
defendant’s Internet activity." Machulsky v. Hall, 210 F. Supp. 2d 531, 538
(D.N.J. 2002) (citing Barrett v. Catacombs Press, 44 F. Supp. 2d 717, 724 (E.D.
Pa. 1999)). "[T]he minimum contacts analysis in cases involving the Internet
is con ducted on a ‘sliding scale,’ on which the constitutionality of the exercise of
personal jurisdiction is directly proportional to the level of commercial
interactivity on a corporation’s web site." S.
Morantz, Inc. v. Hang & Shine Ultrasonics,
Inc., 79 F. Supp. 2d 537, 540 (E.D. Pa. 1999 (citing Zippo Mfg. Co. v. Zippo Dot Dot
Com, Inc., 952 F. Supp. 1119 1124 (E.D. Pa. 1997)). "At one end of the
continuum are passive sites that merely post information that is available to anyone with
access to the Internet; on the other end are highly interactive sites through which a
corporation conducts business over the Internet." Id. (citation omitted).
"The latter sites typically involve a high volume of deliberate exchanges of information
through the site, including the formation of contracts." Id. (citation
omitted). "In the middle are interactive Web sites where a user can exchange information with
the host computer." Id. (citation and internal quotation marks omitted). "The
exercise of personal jurisdiction in cases involving sites in this middle category
hinges on the level of commercial information exchange that takes place on the web
site." Id. (citation omitted). We find particularly instructive S. Morantz, Inc.
and another recent case from the Eastern District of Pennsylvania,
Desktop Technologies, Inc. v. Colorworks Reproduction & Design, Inc., No.
CIV. A. 98-5029, 1999 WL 98572 (E.D. Pa. February 25, 1999).
The issue in Morantz was whether the defendant
corporation had minimum contacts with the Commonwealth of Pennsylvania.
The plaintiff was a Pennsylvania corporation that manufactured and
sold machines that cleaned items such as window blinds. The defendant was a New
York corporation that operated a blind-cleaning business. It operated a website
and a 1 (800) number. According to the plaintiff, the defendant infringed on its
trademark by using on its website a woman scrubbing blinds over a tub of w ater. The
plaintiff sued the defendant in the Eastern District of Pennsylvania.
The court found that it lacked personal
jurisdiction over the defendant. In a preliminary rejection of jurisdiction, the court
dismissed the plaintiff’s argument that the defendant’s "maintenance of a
toll-free number and a web site that is accessible to individuals within the state of
Pennsylvania constitutes sufficient minimum contacts to subject [the defendant] to
personal jurisdiction in this district." Id. at 540-41. It stated that
"there must be ‘something more’ than a mere website to justify the existence of personal
jurisdiction over a non-resident corporation." Id. at 541. It an alyzed the
defendant’s website. The website contained a downloadable order form for a
promotional video, a form by which a user could request additional information, and a
link by which a user may send e-mail to the defendant corporation. The court found
that these features did not add up to the requisite "something more":
On the sliding scale of interactivity discussed
above, defendant's web site is at best a middle category site. Clearly, it is
not a highly interactive site through which business is conducted. Contracts
and sales are not consummated through the web site, and the volume
of information exchanged via the site is small. There are a few
minimally interactive features on the site, including a lease
application that may be printed out, but not sent over the Internet; a form through
which a user may order and pay for a $10 promotional video; a form through
which a user may request additional
information; and an [sic] link by
which a user may send e-mail directly to Hang & Shine from the
site.
Upon a careful review of the record and the case
law on this subject, I conclude that these web site features are not
interactive enough to justify the exercise of personal jurisdiction by this Court.
The presence of an e-mail link or a form for placing orders on a web site
does not create the kind of minimum contacts required to establish personal
jurisdiction. Id. (citations and footnote
omitted). The plaintiff in Morantz pointed to the fact that
the defendant had within previous years made various contacts with
Pennsylvania entities; specifically, the defendant sold one cleaning machine to a
Pennsylvania corporation, sold four videos to Pennsylvania residents, and sent five
e-m ails to Pennsylvania residents.
The court held these transactions to be "the
kind of ‘fortuitous,’ ‘random,’ and ‘attenuated’ contacts that the Supreme Court
has held insufficient to warrant the exercise of jurisdiction. Id. at 543 (citing
Burger King Corp., 471 U.S. at 475). In Desktop Technologies, the plaintiff was a
Pennsylvania corporation and the defendant was a Canadian corporation. The
plaintiff owned a U.S. trademark, COLORWORKS, while the defendant owned a Canadian
trademark, ColorWorks. The defendant operated a website with the domain
name of colorworks.com; the website was available to users in Pennsylvania.
The plaintiff sued in the Eastern District of Pennsylvania and alleged trademark
infringement, and the defendant raised a lack of personal
jurisdiction.
The court first stated that "[c]ourts have
repeatedly recognized that there must be ‘something more’ than simply
registering someone else’s trademark as a domain name and posting a web site on the
Internet to demonstrate that the defendant directed its activity towards the forum
state." Desktop Technologies, 1999 98572 at *5 (citation omitted). Searching
for the "something more," it noted that the defendant’s presence on the Internet
and an e-mail link were the only contacts with Pennsylvania, and it concluded that
the largely noninteractive character of the defendant’s website was such
that specific personal jurisdiction was
nonexistent:
Defendant’s Internet presence and e-mail link
are its only contacts with Pennsylvania. As established earlier,
Defendant maintains the web site to advertise and post information about its
services and employment opportunities. The web site does not exist for
the purpose of entering into contracts with customers outside of Canada or for
the purpose of attracting customers from Pennsylvania. Instead, its web
site specifically states that it is servicing clients in British Columbia, Alberta
and Yukon. Defendant has never entered into any contracts in Pennsylvania,
made sales or earned income in Pennsylvania, or sent messages over the
Internet to users in Pennsylvania. While visitors to the web site are
able to exchange information over the web site via Internet FTP
and e-mail, receiving a file through Internet FTP or an e-mail does not
constitute placing an order. Thus, while Defendant is exchanging information
over the Internet, it is not doing business over the In ternet w ith resid
ents of Pennsylvania. Accordingly, this Court finds that Defendant’s
registration of "ColorWorks" as a domain name and posting a web site on the
Internet are insufficient to subject Defendant to specific personal
jurisdiction in Pennsylvania. Id. at *6.
Both Morantz and Desktop Technologies dictate
that personal jurisdiction in this case is lacking. We reiterate the court’s
statement in Desktop Technologies’s that the conduct outlined in the amended
complaint – that is, simply registering someone else’s trademark as a domain name and
posting a web site on the Internet – does not by itself demonstrate that any
defendant directed its activity towards the forum
state. The "something more"
needed to subject any defendant to jurisdiction is not present. Each defendant, to the extent
that it had any contact with Pennsylvania at all, has even less of a
connection to Pennsylvania than did the defendants in Morantz or Desktop Technologies. As
with the website in Morantz, the websites owned by Secure Developer and
Weather Solutions are at best middle category sites. Also, they are not interactive
enough to justify the exercise of personal
jurisdiction. They are purely
informational. The websites lack a means for users to conduct business; the websites in
the instant case – unlike the website in Morantz – lack even an order form for
promotional materials. As with the website in Desktop Technologies, the websites’
presence on the Internet and e-mail link are not enough to subject any defendant to
personal jurisdiction. Further, any contact with Pennsylvania – such as Secure
Developer’s few meetings with Pennsylvania television stations – is even more
attenuated than the "fortuitous" contacts outlined in Morantz. That is, the
defendant in Morantz, for example, actually sold products to Pennsylvania residents
and still the court found jurisdiction lacking. Here, Secure Developer’s
trips to Pennsylvania, along with any other contact with Pennsylvania, do not rise
even to the level found in Morantz or Desktop Technologies. As a result, minimum
contacts with Pennsylvania are lacking, and personal jurisdiction cannot be
found.
Accuweather points to a 2001 press release that
may be found on the websites. The press release lists a large number
of U.S. cities that may use Secure Developer’s services. The list includes four
cities in Pennsylvania. Accuweather argues that the inclusion of these cities means
that Secure Developer is subjecting itself to Pennsylvania jurisdiction. We reject
this argument; a single press release containing potential U.S. markets is exactly the
type of isolated situation that militates against the fin ding of personal
jurisdiction. We note that there are multiple defendants in
this case. The above discussion relates primarily to True Weather and
Secure Developer. If jurisdiction cannot be exercised over these two, then
jurisdiction is necessarily lacking when it comes to individual defendants Fowler and
Valentin and corporate entities Total Weather, Weather Solutions, and Hostmaster. As
the affidavits make clear, the individual defendants have no contact with
Pennsylvania, and the remaining corporate entities are for the most part names
under which True Weather and Secure Developer operate, and they otherwise have
no connection to Pennsylvania. Accuweather requests in the alternative that we
allow discovery on the jurisdictional issue. "[T]he decision of
whether or not to permit jurisdictional discovery is a matter committed to the sound
discretion of the district court." Base Metal
Trading, Ltd. v. OJSC "Novokuznetsky
Aluminum Factory, 283 F.3d 208, 216 n.3 (4 th Cir. 2002). Accuweather provides us
with no basis to believe that discovery would change our opinion. Thus, its
request for discovery will be denied.
Moreover, in its brief Accuweather does not
contest defendants’ request to transfer the case to the Western District of
Oklahoma. If a district court finds that jurisdiction is lacking, "it shall, if it is
in the interest of justice, transfer [the action] to any other such court in which the action . . .
could have been brought at the time it was filed." 28 U.S.C. § 1631. Both
individual defendants reside in Oklahoma, and the Internet activities are based in
Oklahoma. This action could have been brought in the Western District of Oklahoma, and
it is in the interests of justice to transfer the case rather than dismiss it;
accordingly, the case will be transferred to the Western District of Oklahoma.
CONCLUSION:
Because no defendant has the requisite minimum
contacts with the Commonwealth of Pennsylvania, this court lacks
personal jurisdiction over each defendant. Because it is in the interests of
justice, we will not dismiss the amended complaint, but we will transfer the case to the
Western District of Oklahoma.
____________________________
James F. McClure, Jr.
....
O R D E R
October 2, 2002
For the reasons set forth in the accompanying
memorandum,
IT IS ORDERED THAT:
1. Defendants’ motion to dismiss for lack of
personal jurisdiction or in the alternative to transfer venue to Oklahoma
(Rec. Doc. No. 13) is granted.
2. The clerk is directed to transfer the case to
the United States District Court for the Western District of
Oklahoma.
3. The clerk is directed to close the case file.
____________________________
James F. McClure, Jr.
United States District Judge
Filed 10/02/02
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