Opinion
No. 1:99-CV-316
March 29, 2001
OPINION
Plaintiff, Richard A. Dawson ("Dawson"), has sued Defendant, Mario Pepin ("Pepin"), alleging that Pepin infringed Dawson's patent on a combustible material used to attract animals and cover human scent. Now before the Court is Pepin's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction. For the reasons set forth below, the Court will grant the motion and dismiss the case.
I. Background
Pepin is a resident of Quebec, Canada. Pepin has manufactured and sold various products designed for hunting since approximately 1990. One of these products is a scent product called "Sniffs" which Pepin markets and sells under the assumed name of "Buck Expert." The "Sniffs" product is a stick of combustible material that gives off an odor when burned. The purpose of the odor is to attract animals and mask a hunter's human scent. Dawson, a resident of Michigan, also sells a scent product under the name "Deer Sense." On April 8, 1997, Dawson obtained U.S. Patent No. 5,618,548 on his scent product. Shortly after obtaining his patent, Dawson, through his attorney, informed Pepin that he was infringing Dawson's patent by selling his scent product in the United States. Dawson filed his complaint in this suit on April 29, 1999, alleging that Pepin infringed Dawson's patent by selling the "Sniffs" products in the United States.
II. Motion Standard
In determining whether personal jurisdiction exists in a patent infringement case, courts must apply the law of the Federal Circuit rather than the law of the regional circuits. Akro Corp. v. Luker, 45 F.3d 1541, 1543 (Fed. Cir. 1995); Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558, 1564-65 (Fed. Cir. 1994); A. Meyers Sons Corp. v. Clipps, Inc., No. 00 CIV. 7191 (HB), 2001 WL 125586, at *1 (S.D.N.Y. Feb. 13, 2001). For purposes of a motion to dismiss under Fed.R.Civ.P. 12(b)(2), a court must construe pleadings and affidavits in the light most favorable to the party asserting personal jurisdiction.See Graphic Controls Corp. v. Utah Med. Prods., Inc., 149 F.3d 1382, 1383 n. 1 (Fed. Cir. 1998). Where a motion to dismiss for lack of personal jurisdiction is decided without an evidentiary hearing, the plaintiff need only make out a prima facie showing of personal jurisdiction. United States v. Ziegler Bolt Parts Co., 111 F.3d 878, 880 (Fed. Cir. 1997);see also Dean v. Motel 6 Operating L.P., 134 F.3d 1269, 1272 (6th Cir. 1998) (quoting CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th Cir. 1996)). In contrast to a motion under Rule 56, a court may consider hearsay in a Rule 12(b)(2) motion if "the evidence bears circumstantial indicia of reliability so that it very well could be admissible at trial notwithstanding its hearsay nature." Beverly Hills Fan Co., 21 F.3d at 1562.
III. Discussion
The determination of whether an out-of-state defendant is subject to personal jurisdiction in a particular state involves a two-step inquiry:
(1) whether the forum's long-arm statute permits the assertion of jurisdiction; and
(2) whether the assertion of personal jurisdiction over
the defendant comports with the requirements of federal due process.
Graphic Controls Corp., 149 F.3d at 1385;
Red Wing Shoe Co. v. Hockerson-Halberstadt, Inc., 148 F.3d 1355, 1358 (Fed. Cir. 1998). In performing the first inquiry, the Federal Circuit defers to the interpretations of the state's long-arm statute by that state's courts and regional federal courts that have interpreted the statute. Graphic Controls Corp., 149 F.3d at 1385-86; see also Akro Corp., 45 F.3d at 1544 (adopting Sixth Circuit's interpretation of Ohio long-arm statute). With regard to the second inquiry, however, the law of the Federal Circuit applies. Beverly Hills Fan Co., 21 F.3d at 1564-65.
The Court will consider only the issue of limited personal jurisdiction as the parties both agree that there is no basis for general personal jurisdiction over Pepin.
The Michigan long-arm statute granting limited jurisdiction over individuals provides:
The existence of any of the following relationships between an individual or his agent and the state shall constitute a sufficient basis of jurisdiction to enable a court of record of this state to exercise limited personal jurisdiction over the individual and to enable the court to render personal judgements against the individual or his representative arising out of an act which creates any of the following relationships:
(1) The transaction of any business within the state;
(2) The doing or causing an act to be done, or consequences to occur, in the state resulting in an action for tort.
(3) The ownership, use, or possession of real or tangible personal property situated within the state.
(4) Contracting to insure a person, property, or risk located within this state at the time of contracting.
(5) Entering into a contract for services to be rendered or for materials to be furnished in the state by the defendant.
(6) Acting as a director, manager, trustee, or other officer of a corporation incorporated under the laws of, or having its principal place of business within this state.
(7) Maintaining a domicile in this state while subject to a marital or family relationship which is the basis of the claim for divorce, alimony, separate maintenance, property settlement, child support, or child custody.
The Michigan Supreme Court has construed Michigan's long-arm statute to extend to the limits imposed by the due process clause of the federal constitution. See Sifers v. Horen, 385 Mich. 195, 199, 188 N.W.2d 623, 623-24 (1971). Thus, the two questions merge so that the only determination is whether assertion of personal jurisdiction violates the due process clause. See Nationwide Mut. Ins. Co. v. Tryg Int'l Ins. Co., 91 F.3d 790, 793 (6th Cir. 1996); Mich. Coalition of Radioactive Mat. Users, Inc. v. Griepentrog, 954 F.2d 1174, 1176 (6th Cir. 1992).
To satisfy the requirements of federal due process, a defendant not present within the forum state must have "certain minimum contacts with it such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'" Int'l Shoe Co. v. Wash., 326 U.S. 310, 316, 66 S.Ct. 154, 158 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343 (1940)). A defendant's contacts with a state must be "purposeful," meaning that a defendant must intend to avail himself of the privilege of conducting activities in the forum state, invoking the "`benefits and protections'" of the forum's laws. Burger King Corp. v. Rudzewicz, 471 U.S. at 475-76, 105 S.Ct. 2174, 2183-84 (1985) (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239-40 (1958)). This requirement ensures that non-residents will have fair notice that their actions may subject them to suit in the forum state. See id. at 472, 105 S.Ct. at 2181-82. In addition, the plaintiff's claim must either arise out of or relate to the defendant's activities in the forum state. See Helicopteros Nacionales De Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 1872 (1984). Finally, even if the minimum contacts requirement is satisfied, a court must determine whether assertion of personal jurisdiction over the defendant would be fair under the circumstances of the case. See Burger King, 471 U.S. at 476-78, 105 S.Ct. at 2184-85. "In general, cases [holding that minimum contacts exist but that jurisdiction does not] are limited to the rare situation in which 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." Beverly Hills Fan Co., 21 F.3d at 1568. The Federal Circuit determines the sufficiency of personal jurisdiction under federal due process by applying a three-prong minimum contacts test: (1) whether the defendant purposefully directed its activities at residents of the forum; (2) whether the claim arises out of or relates to those activities; and (3) whether assertion of personal jurisdiction is reasonable and fair. See 3D Sys., Inc. v. Aarotech Labs., Inc., 160 F.3d 1373, 1378 (Fed. Cir. 1998).
A. Purposeful Availment
In support of his argument that Pepin has directed his activities toward Michigan residents, Dawson cites the fact that Pepin has appeared at a number of trade shows in the United States at which he has displayed and promoted his Sniffs product. (Dawson Decl. ¶¶ 3, 6, 7, Pl.'s Mem. Opp'n Ex. 1; Martine Decl. ¶ 3, Pl.'s Mem. Opp'n Ex. 3.) Such activity does not support Dawson's argument because nothing in the evidence submitted by Dawson indicates that the trade shows occurred in Michigan. Instead, those shows are alleged to have occurred in Indiana, Ohio, Kentucky, Texas, and Nevada. (Dawson Decl. ¶ 2; Martine Decl. ¶ 3.)
In support of his motion, Pepin submitted an affidavit dated December 15, 2000. The affidavit was signed by Pepin but was unsworn and Pepin did not subsequently file a sworn affidavit. Therefore, the Court cannot consider the December 15, 2000, affidavit because it does not comply with Federal Rule of Civil Procedure 56(e). See Steinle v. Warren, 765 F.2d 95, 100 (7th Cir. 1985). Furthermore, although an unsworn affidavit is permissible under 28 U.S.C. § 1746, the affidavit must be subscribed to as true under penalty of perjury. 28 U.S.C. § 1746; Bonds v. Cox, 20 F.3d 697, 702 (6th Cir. 1994). Pepin's affidavit did not contain such a statement and thus cannot be considered by the Court.
Dawson also points to a sale of a Sniffs product in Michigan that occurred on December 7, 2000, approximately one week before the instant motion was filed, as indicating that Pepin has purposefully directed his activities toward Michigan. Specifically, Debra Hamilton-Dawson, Dawson's wife, states that on or about December 7, 2000, she ordered a Sniffs product from a business known as Old Town Trading Post located in Maine. (Hamilton-Dawson Decl. ¶ 3, Pl.'s Mem. Opp'n Ex. 2.) Ms. Dawson states that she purchased the Sniffs product by calling an "800" telephone number which she received from her brother in the state of Washington, who also purchased a Sniffs product by calling the "800" number. (Id. ¶¶ 2-3.) The "800" number is the telephone number that appears on Pepin's Buck Expert website. (Id. ¶ 2.)
Dawson contends that the sale of a single accused product in the forum state is sufficient to establish minimum contacts in a patent infringement case. In addition, Dawson argues that because patent infringement is a continuous tort, a court may consider acts of infringement occurring after the suit was filed for purposes of determining personal jurisdiction. With regard to the latter point, Dawson's reliance on Beverly Hills Fan Co. v. Royal Sovereign Corp. misses the mark. The court in that case was addressing whether, in determining personal jurisdiction in a patent infringement case, a court is limited to considering only the defendant's conduct before the complaint was filed or whether a court may also consider the defendant's conduct after the complaint was filed as bearing on the issue of continuous and systematic contacts. See Beverly Hills Fan Co., 21 F.3d at 1562-63. The plaintiff in Beverly Hills Fan Co. submitted evidence that the defendants were engaged in continuous shipment of substantial numbers of the accused fan into Virginia both at the time the complaint was filed and after the complaint was filed. See id. at 1563. The court found that the post-complaint evidence should be considered because "[i]n a case involving a continuous tort, it would be arbitrary to identify a single moment after which defendant's contacts with the forum necessarily become irrelevant to the issue of specific jurisdiction." Id. Unlike that case, Dawson has not presented any evidence that Pepin had made or was making any sales of the accused product in Michigan at the time the complaint was filed.
Moreover, while a single sale might suffice for personal jurisdiction,see Maxwell Chase Techs., L.L.C. v. KMB Produce, Inc., 79 F. Supp. 1364, 1372-73 (N.D.Ga. 1999), a plaintiff may not manufacture jurisdiction by engaging in a sale merely to confer jurisdiction in a particular forum.ESAB Group, Inc. v. Centricut, LLC, 34 F. Supp.2d 323, 332-33 (D.S.C. 1999) (stating that "[h]ere, the transaction purportedly supporting personal jurisdiction post-dated the accrual of the cause of action and appears to be manufactured by Plaintiff for the sole purpose of providing Plaintiff with a preferred forum for litigation"); Edberg v. Neogen Corp., 17 F. Supp.2d 104, 112 (D.Conn. 1998) (noting that "the courts have repeatedly held that jurisdiction may not be manufactured by the conduct of others"). There is no dispute that the sale Dawson alleges occurred in Michigan was instigated by Ms. Dawson solely for the purpose of manufacturing jurisdiction. Given these circumstances, it was Dawson, acting through his wife, rather than Pepin, who sought to bring the accused product into the state. Thus, the Court will not consider the sale to Ms. Dawson as evidence bearing on Pepin's contacts with Michigan. Edberg, 17 F. Supp.2d at 112 ("Only those contacts with the forum that were created by the defendant, rather than those manufactured by the unilateral acts of the plaintiff, should be considered for due process purposes").
Dawson also argues that Pepin's website on the internet is a basis for imposing personal jurisdiction. While the internet has now become firmly ingrained as part of our country's economic, social, cultural, and political systems, the law of personal jurisdiction based upon internet activities is still relatively new. However, courts that have considered internet activities in the personal jurisdiction analysis have evaluated the sufficiency of such activities by applying traditional concepts of personal jurisdiction, requiring the defendant to have reached out beyond its own state to engage in transactions with residents of the forum state. In doing so, courts have refused to find minimum contacts based solely upon the maintenance of an internet website. As the Ninth Circuit has stated,
so far as we are aware, no court has ever held that an Internet advertisement alone is sufficient to subject the advertiser to jurisdiction in the plaintiff's home state. Rather, in each, there has been "something more" to indicate that the defendant purposefully (albeit electronically) directed his activity in a substantial way to the forum state.Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 418 (9th Cir. 1997) (citation omitted).
Many courts have followed the "sliding scale" analysis employed by the court in Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D.Pa. 1997), to evaluate the quality of internet contacts with the forum state. The Zippo court described activities as falling into three different categories or areas along the spectrum of usage. At one end of the spectrum are situations where the defendant clearly subjects itself to a state's personal jurisdiction by "enter[ing] into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the internet." Id. at 1124. At the other end of the spectrum are "passive" websites, which merely contain information about a company and its products but do not allow the transaction of business. The maintenance of such a site is not a basis for the exercise of personal jurisdiction. Id. In the middle are websites which allow the user to exchange information with the host. "In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site." Id.
In addition to the Zippo "sliding scale" analysis, courts have examined "whether the defendant intentionally reached beyond its own state to engage in business with residents of the forum state." Edberg, 17 F. Supp.2d at 114. In Edberg, the defendant maintained a web site which contained information about the company's products and research, a literature request form, and information for ordering products, including an "800" number for telephone orders. See id. at 113. The court concluded that the defendant's website was insufficient to confer personal jurisdiction over the defendant because there was no evidence that any user in the forum state (Connecticut) accessed the site or purchased products over the site, the website was not directed at residents of the forum state any more than any other state, and users could not order products directly from the website but instead could only do so by calling the "800" number or writing to the defendant. Id. at 114.
In Neogen Corp. v. Neo Gen Sceening, Inc., 109 F. Supp.2d 724 (W.D.Mich. 2000), a case from this district, Judge Bell, using the Zippo rule, concluded that the defendant's website was more passive in nature and thus did not support personal jurisdiction over the defendant. The court noted that the website contained some interactive functions, such as an e-mail directory of employees, the ability to print blood sample collection forms which had to be mailed along with blood samples to the defendant, and the availability for customers who had received a password from the defendant to access test results. Id. at 729-30. However, no orders were taken over the website and there was no evidence that it was targeted at Michigan residents more than residents of any other state.Id. at 730. Similarly, the Eighth Circuit in Soma Medical International v. Standard Chartered Bank, 196 F.3d 1292 (10th Cir. 1999), held that the plaintiff failed to carry its "relatively light burden" of making a prima facie showing of personal jurisdiction where the defendant's website in a passive manner merely contained information about the defendant. Id. at 1297; see also Mink v. AAAA Dev. LLC, 190 F.3d 333, 337 (5th Cir. 1999) (concluding that a website containing e-mail access, a printable mail-in order form, and a toll-free telephone number did not provide a basis for personal jurisdiction).
The court in Winfield Collection, Ltd. v. McCauley, 105 F. Supp. d 746 (E.D.Mich. 2000), held that the defendant's maintenance of a website was insufficient to support personal jurisdiction, even though the website was "interactive." While noting the existence of the Zippo analysis, the court refused to hold, as urged by the plaintiff, that the maintenance of an internet website with interactive features is alone sufficient to confer personal jurisdiction. See id. at 750-51. Instead, the court looked to the nature and quality of the defendant's contacts with the forum state regardless of the existence of the website. Id. The court concluded that except for two online auction sales at issue in the case to two Michigan residents, there was no evidence indicating that the plaintiff had any continuing relationship with anyone in Michigan or purposefully availed herself of the benefits of Michigan law. Id. at 751.
In contrast to the cases mentioned above, the court in Sports Authority Michigan, Inc. v. Justballs, Inc., 97 F. Supp.2d 806 (E.D.Mich. 2000), concluded that the defendant's website provided a basis for exercising personal jurisdiction over the defendant. In particular, the court observed that the website did more than just advertise because it enabled customers to purchase products by placing them in a "virtual shopping cart" and paying for them at the "checkout counter." Id. at 814. The evidence also demonstrated that the defendant did not have any retail stores, sold its products primarily through the internet, and sold products specifically aimed at Michigan residents. Moreover, the plaintiff presented evidence showing that the defendant admitted to selling products to customers in all 50 states. Id. at 812.
In this case, Dawson has identified two websites which he contends support personal jurisdiction over Pepin. The first website is the Buck Expert website maintained by Pepin. Pepin does not deny that he is directly connected with this site. The Buck Expert website contains pictures and descriptions of various Buck Expert products, company history and information, and dealer information, including the names and addresses of three dealers located in Michigan. (Buck Expert Webpages, attached to Dawson Decl. as Exs. D4 — D27.) The website also contains a telephone number for United States orders, but orders cannot be placed directly through the website. Thus, the website is what is referred to as a "passive" site under the Zippo analysis, which, alone, is an insufficient basis for personal jurisdiction. This web site is not unlike other sites which merely provide information about products but do not allow customers to purchase products online. See S. Morantz, Inc. v. Hang Shine Ultrasonics, Inc., 79 F. Supp.2d 537, 541 (E.D.Pa. 1999). Furthermore, in spite of the fact that the Buck Expert website lists three dealers in Michigan, the Court finds nothing in the record indicating that Pepin intended to target his Buck Expert website specifically at Michigan residents and Dawson has not shown that any sales occurred in Michigan as a result of the Buck Expert website. That the website lists Michigan dealers is no different than listing those dealers in a national publication with circulation in Michigan, which alone would be insufficient to establish sufficient minimum contacts. See Jet-Pro Co. v. Sweet Mfg. Co., No. 93-4059-SAC, 1993 WL 463512, at *6 (D.Kan. 1993) (stating that "the mere fact that a defendant advertises in a national trade journal or magazine that is circulated in Kansas, does not, in and of itself, establish minimum contacts"). Thus, the Buck Expert website does not support Dawson's argument for personal jurisdiction.
Dawson also points to a website called The Hunter's Store, which not only contains information about Buck Expert products but also allows customers to purchase the products online, making the site "interactive." While this web site could conceivably provide some basis for personal jurisdiction, Dawson has not shown that Pepin is connected with this site, as Dawson concedes in his brief that he is not sure of the relationship between Pepin and The Hunter's Store web site. (Pl.'s Mem. Opp'n at 5.) On the other hand, Pepin states by declaration that he has no connection with The Hunter's Store site and does "not sponsor, edit, or control this website." (Pepin 2/15/01 Decl. ¶ 7 (docket no. 35).) Thus, nothing in the record suggests that Pepin has any connection to The Hunter's Store site. Furthermore, even if Pepin had some connection with the site, there has been no showing that Pepin has used the site to carry on any systematic or continuous business with residents of Michigan because Dawson has not shown that the Sniffs product was sold in Michigan through the website or by any other means.
Pepin submitted an unsigned and unsworn declaration with his reply brief. However, Pepin subsequently filed a signed and sworn declaration on February 26, 2001. Therefore, the Court may consider that declaration.
Finally, Dawson contends that jurisdiction is proper under the "effects test" of Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482 (1984), and under the stream of commerce theory of World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559 (1980). Dawson contends that personal jurisdiction is appropriate under either or both of these theories because Pepin has an established distribution channel in Michigan through his three Michigan dealers. The Court disagrees with this assessment.
In World-Wide Volkswagen Corp., the Court held that where a defendant intentionally inserts its products into the stream of commerce expecting that they will find their way to another state, due process is not offended by the exercise of jurisdiction by that state over the defendant:
When a corporation "purposefully avails itself of the privilege of conducting activities within the forum State," Hanson v. Denckla, 357 U.S., at 253, 78 S.Ct., at 1240, it has clear notice that it is subject to suit there, and can act to alleviate the risk of burdensome litigation by procuring insurance, passing the expected costs on to customers, or, if the risks are too great, severing its connection with the State. Hence if the sale of a product of a manufacturer or distributor such as Audi or Volkswagen is not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve directly or indirectly, the market for its product in other States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury to its owner or to others. The forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.Id. at 297-98, 100 S.Ct. at 567. In Calder v. Jones, the plaintiff, an entertainer who lived in California, sued two Florida residents in California for libel based upon an article written and published by the defendants in a magazine with national circulation. Although neither defendant had performed any act within California in connection with the libelous story, the Court held that personal jurisdiction was proper based on the intended effects of the story. The Court observed:
The allegedly libelous story concerned the California activities of a California resident. It impugned the professionalism of an entertainer whose television career was centered in California. The article was drawn from California sources, and the brunt of the harm, in terms both of respondent's emotional distress and the injury to her professional reputation, was suffered in California. In sum, California is the focal point both of the story and of the harm suffered. Jurisdiction over petitioners is therefore proper in California based on the "effects" of their Florida conduct in California. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297-298, 100 S.Ct. 559, 567-568, 62 L.Ed.2d 490 (1980); Restatement (Second) of Conflicts of Law § 37 (1971).465 U.S. at 788-89, 104 S.Ct. at 1486-87.
Dawson has failed to present any basis for applying the "stream of commerce" theory or the "effects test" because Dawson has failed to present any evidence showing that any of the accused products actually entered or were sold in Michigan by Pepin or the distributors identified on Pepin's Buck Expert website. In fact, Pepin states in his affidavit that he has no record of smoking scent products being sold to any United States distributor, including those in Michigan. (Pepin 2/15/01 Decl. ¶ 6.) Thus, Dawson has failed to show that a product Pepin placed in the stream of commerce entered Michigan and caused injury here. In addition, there is no basis for applying the Calder "effects test" because that test applies only where the defendant expressly aims his conduct at the forum state such that the forum state is the focal point of the injury. IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 265-66 (3d Cir. 1998). "[T]he mere allegation that the plaintiff feels the effect of the defendant's tortious conduct in the forum because the plaintiff is located there is insufficient to satisfy Calder." Id. at 263. Here, all that is presented is Dawson's claim that whatever injury occurred outside of Michigan has affected Dawson. This is insufficient to satisfy the requirements of the "effects test."
B. Forum-Related Activities
In addition to showing that Pepin has purposefully availed himself of the benefits of doing business in Michigan, Dawson must also show that Dawson's claim arises out of Pepin's activities in Michigan. See 3D Sys., 160 F.3d at 1378. Because Dawson has failed to demonstrate a sufficient level of activity by Pepin in Michigan to establish "minimum contacts" with Michigan, Dawson also fails to satisfy the second prong of the personal jurisdiction test.
C. Fairness
Finally, Dawson makes several arguments under the "reasonable and fair"prong of the "minimum contacts" test explaining why it would be reasonable for a Michigan court to assert jurisdiction over Pepin. Those arguments do not help Dawson because Dawson has failed to show that Pepin purposefully directed his activities at Michigan residents. The additional factors identified in Burger King for determining whether personal jurisdiction would be reasonable come into play only if the defendant has established "minimum contacts" with the forum state. Burger King, 471 U.S. at 476, 105 S.Ct. at 2184 ("Once it has been decided that a defendant purposefully established minimum contacts within the forum State, these contacts may be considered in light of other factors to determine whether the assertion of personal jurisdiction would comport with `fair play and substantial justice'") (quoting International Shoe, 326 U.S. at 320, 66 S.Ct. at 160).
IV. Conclusion
For the foregoing reasons, the Court will grant Pepin's motion to dismiss for lack of personal jurisdiction and dismiss the case without prejudice.
An Order consistent with this Opinion will be entered.
ORDER
In accordance with the Opinion filed on this date,
IT IS HEREBY ORDERED that Defendant's Motion To Dismiss For Lack Of Personal Jurisdiction (docket no. 19) is DISMISSED.