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holding that the operation of a website and use of that website to make products available throughout the United States does not demonstrate any type of contact with Colorado specifically
Summary of this case from SEBO Am., LLC. v. AzarOpinion
Civil Action No. 19-cv-2992-DDD-KLM
03-26-2020
ONYX ENTERPRISES INT'L CORP., Plaintiff, v. SLOAN INTERNATIONAL HOLDINGS CORP., JONATHAN SLOAN, Defendants.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Defendants' Motion to Dismiss Plaintiff's Complaint and/or Motion to Transfer Venue Under 28 U.S.C. § 1404 [#7] (the "Motion to Dismiss"). Plaintiff filed a Response [#12] in opposition to the Motion to Dismiss [#7], and Defendant Jonathan Sloan ("Sloan"), who proceeds as a pro se litigant, filed a Reply [#16] on behalf of himself only.
"[#7]" is an example of the convention the Court uses to identify the docket number assigned to a specific paper by the Court's case management and electronic case filing system (CM/ECF). This convention is used throughout this Order and Recommendation.
The Court must construe liberally the filings of a pro se litigant. See Haine v. Kemer, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be the pro se litigant's advocate nor should the Court "supply additional factual allegations to round out [the pro se litigant's] complaint or construct a legal theory on [his] behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall, 935 F.2d at 1110). In addition, pro se litigants must follow the same procedural rules that govern other litigants. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
This matter is also before the Court on Plaintiff's Motion to Strike Defendants['] Motion to Dismiss and/or Motion to Transfer as to Sloan International Holdings Corp. [#11]. Plaintiff filed the Motion to Strike [#11] asking the Court to enter an order striking Defendants' Motion to Dismiss [#7] to the extent it was asserted by Sloan International Holdings Corporation ("Sloan Corp."). No Response was filed.
Finally, this matter is also before the Court on Plaintiff's Motion for Default Judgment and Permanent Injunction Against Defendant Sloan Corp. [#36] (the "Motion for Default Judgment"). Defendant Sloan Corp. did not file a Response, but Plaintiff nevertheless filed a Reply [#45] in support of its Motion for Default Judgment [#36].
The Motions [#7, #11, #36] have been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1. See [#23, #39]. The Court has reviewed the Motions, the Response, the Replies, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that the Motion to Dismiss [#7] be GRANTED, that the Motion to Strike [#11] be GRANTED, and that the Motion for Default Judgment [#36] be DENIED.
I. Background
For the purposes of resolving the Motion to Dismiss [#7], the Court accepts as true all well-pled, as opposed to conclusory, allegations made in Plaintiff's Complaint. See Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Plaintiff is a New Jersey corporation with its principal place of business in New Jersey. Compl. [#1] ¶ 4. The company distributes and sells products through its e-commerce platforms. Id. ¶ 14. Plaintiff owns and operates the online e-commerce platform www.CARiD.com, where it distributes and sells automotive parts and accessories. Id. ¶ 15. Plaintiff has been distributing and selling automotive parts and accessories under the CARiD brand since 2009 and is one of the largest online retailers in the nation. Id. Plaintiff also distributes and sells automotive parts and accessories through other brands including BOATiD, CAMPERiD, MOTORCYCLEiD, POWERSPORTSiD, RACINGiD, RECREATIONiD, STREETiD, TOOLSiD, and TRUCKiD. Id. ¶ 16.
Defendant Sloan Corp. is a Florida corporation with its principal place of business located in Florida. Id. ¶ 5. Defendant Sloan Corp. operates and controls the website www.RIMSiD.com. Id. ¶ 6. Defendant Sloan is an individual who resides in Florida and is the owner of both Defendant Sloan Corp. and the website www.RIMSiD.com. Id. ¶¶ 7-9. On March 30, 2012, Defendant Sloan registered the domain name www.RIMSiD.com and began selling aftermarket automotive parts and accessories. Id. ¶¶ 37-38. On September 23, 2018, Defendant Sloan incorporated Defendant Sloan Corp., and Defendant Sloan Corp. assumed control and operation of www.RIMSiD.com. Id. ¶¶ 39-40.
On October 21, 2019, Plaintiff filed the Complaint [#1] against Defendants. Plaintiff asserts seven claims, seeking damages and injunctive relief. Id. Plaintiff claims the following alleged violations of the Lanham Act: (1) trademark counterfeiting and trademark infringement, 15 U.S.C. § 1114; (2) unfair competition and false designation of origin, 15 U.S.C. § 1125(a); (3) dilution, 15 U.S.C. § 1125(c); and (4) cybersquatting, 15 U.S.C. § 1125(d). Id. ¶¶ 77-121. In addition, Plaintiff claims (5) trademark infringement and (6) unfair competition in violation of Colorado common law. Id. ¶¶ 122-130. Finally, Plaintiff claims (7) deceptive trade practices in violation of the Colorado Consumer Protection Act. Id. ¶¶ 139-149. Defendants seek dismissal of all claims under Fed. R. Civ. P. 12(b)(2), Fed. R. Civ. P. 12(b)(3), Fed. R. Civ. P. 12(b)(5), and Fed. R. Civ. P. 12(b)(6). Motion to Dismiss [#7]. Plaintiff seeks an order striking Defendants' Motion to Dismiss [#7] as to Defendant Sloan Corp., see Motion to Strike [#11], and also seeks default judgment and a permanent injunction against Defendant Sloan Corp., see Motion for Default Judgment [#36].
II. Standard of Review
The purpose of a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(2) is to determine whether the Court has personal jurisdiction over the named parties. "The district court is given discretion in determining the procedure to employ in considering a motion to dismiss for lack of personal jurisdiction." Fed. Deposit Ins. Corp. v. Oaklawn Apartments, 959 F.2d 170, 174 (10th Cir. 1992). After the defendants file a motion to dismiss, the plaintiff bears the burden of establishing personal jurisdiction over the defendants. Behagen v. Amateur Basketball Ass'n of the United States, 744 F.2d 731, 733 (10th Cir. 1984). The Court will accept the well-pled allegations of the operative pleadings as true to determine whether the plaintiff has made a prima facie showing of personal jurisdiction. Dudnikov v. Chalk & Vermillion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir. 2008). The Court "may also consider affidavits and other written materials submitted by the parties." Impact Prods., Inc. v. Impact Prods., LLC, 341 F. Supp. 2d 1186, 1189 (D. Colo. 2004). Conflicting facts "must be resolved in the plaintiff's favor, and the plaintiff's prima facie showing is sufficient notwithstanding the contrary presentation by the moving party." Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995) (internal quotation marks and citations omitted).
III. Analysis
A. Motion to Strike [#11]
In the Motion to Strike [#11], Plaintiff asks the Court to strike Defendants' Motion to Dismiss [#7] as to Defendant Sloan Corp., because Defendant Sloan, an individual, filed the Motion to Dismiss [#7] on behalf of both himself and Defendant Sloan Corp.
Defendant Sloan proceeds in this matter pro se and the court must liberally construe pro se filings. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, pro se litigants must follow the same procedural rules that govern other litigants. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994). It is a "long-standing rule that a corporation must be represented by an attorney to appear in federal court." Tal v. Hogan, 453 F.3d 1244, 1254 (10th Cir. 2006) (citations and footnote omitted). "[A] corporation or other business entity can only appear in court through an attorney and not through a non-attorney corporate officer appearing pro se." Harrison v. Wahatoyas, L.L.C., 253 F.3d 552, 556 (10th Cir. 2001) (citations omitted). Thus, Defendant Sloan has no authority to appear before the Court on Defendant Sloan Corp.'s behalf. Therefore, the Court finds that the Motion to Dismiss [#7] should be stricken as to Defendant Sloan Corp.
Accordingly, the Court recommends that the Motion to Strike [#11] be granted, and that the Motion to Dismiss [#7] be further adjudicated only as to Defendant Sloan.
B. Motion to Dismiss [#7]
1. Request for Jurisdictional Discovery
Plaintiff requests jurisdictional discovery "[t]o the extent the Court will find it helpful," so that an evidentiary hearing may be held on issues of fact pertaining to Defendants' Motion to Dismiss [#7]. Response [#12] at 11. "When a defendant moves to dismiss for lack of jurisdiction, either party should be allowed discovery on the factual issues raised by that motion." Budde v. Ling-Temco-Vought, Inc., 511 F.2d 1033, 1035 (10th Cir. 1975). However, "[t]o obtain jurisdictional discovery, a plaintiff must present a sufficient factual predicate for the establishment of personal jurisdiction." Water Pik, Inc. v. H2OFloss, No. 17-cv-02082-CMA-MJW, 2018 WL 1706276, at *2 (D. Colo. Apr. 9, 2018) (quotation omitted). In other words, Plaintiff must provide the Court with an indication of the type of information and discovery it thinks it may need to combat the dismissal. Smith v. United States, No. 13-cv-01156-RM-KLM, 2014 WL 6515677, at *3 (D. Colo. July 10, 2014).
Here, Plaintiff does not request any specific discovery it needs to determine the merits of the personal jurisdictional issues. See id.; Response [#12] at 11. Plaintiff does not identify unknown facts that would support its assertion that this Court has personal jurisdiction over Defendant Sloan. See Smith, 2014 WL 6515677, at *3; Response [#12] at 11. Rather, Plaintiff simply requests jurisdictional discovery with an evidentiary hearing without making any indication as to the type of information or discovery it needs to combat the dismissal. Smith, 2014 WL 6515677, at *3.; Response [#12] at 11.
Accordingly, Plaintiff's request for jurisdictional discovery is denied.
Furthermore, the Court notes that Plaintiff failed to comply with D.C.COLO.L.CivR 7.1(d), which states that "[a] motion shall not be included in a response or reply to the original motion. A motion shall be filed as a separate document." Plaintiff did not file a separate motion for jurisdictional discovery. The request is only included in its Response [#12] to the Motion to Dismiss [#7]. Response [#12] at 11. The request may alternatively be denied on this basis alone.
2. 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, 571 U.S. 277, 283 (2014) (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980)). "In determining whether a federal court has personal jurisdiction over a defendant, the court must determine (1) whether the applicable statute potentially confers jurisdiction by authorizing service of process on the defendant and (2) whether the exercise of jurisdiction comports with due process." Trujillo v. Williams, 465 F.3d 1210, 1217 (10th Cir. 2006) (quoting Peay v. BellSouth Med. Assistance Plan, 205 F.3d 1206, 1209 (10th Cir. 2000)). Colorado's long-arm statute extends jurisdiction to the full extent of the Constitution. Goodwin v. Bruggeman Hatch, No. 16-cv-00751-CMA-KLM, 2018 WL 2196057, at *3 (D. Colo. May 14, 2018). Under the due process clause, the party must have sufficient "minimum contacts" with the state, so that the exercise of jurisdiction would not violate "traditional notions of fair play and substantial justice." Burger King v. Rudzewicz, 471 U.S. 462, 474 (1985) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). The "minimum contacts" test may be established by general jurisdiction or specific jurisdiction. Otter Prod., LLC v. Phone Rehab, LLC, No. 19-cv-00206-RM-MEH, 2019 WL 4736462, at *4 (D. Colo. Sept. 27, 2019).
Here, Plaintiff argues that the Court has specific jurisdiction over Defendant Sloan. Response [#12] at 3. "The inquiry whether a forum State may assert specific jurisdiction over a nonresident defendant 'focuses on the relationship among the defendant, the forum, and the litigation.'" Walden, 571 U.S. at 283-84 (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775 (1984)). In order to establish specific jurisdiction, Plaintiff must satisfy two requirements. PopSockets LLC v. Online King LLC, No. 19-cv-01277-CMA-NYW, 2019 WL 7168661, at *3 (D. Colo. Dec. 23, 2019). Plaintiff must show that (1) Defendant Sloan purposefully directed his activities towards the forum state and (2) the litigation is a result of injuries that "arise out of or relate to" Defendant Sloan's contacts with the state. Burger King, 471 U.S. at 472.
"Mere foreseeability of causing injury in another state is insufficient to establish purposeful direction." Old Republic Ins. Co. v. Continental Motors, Inc., 877 F.3d 895, 905 (10th Cir. 2017) (citing Burger King, 471 U.S. at 474). "[W]here the defendant deliberately has engaged in significant activities within a State, . . . he manifestly has availed himself of the privilege of conducting business there." Id. In the internet context, the Court must place "emphasis on the internet user or site intentionally directing his/her/its activity or operation at the forum state rather than just having the activity or operation accessible there." Shrader v. Biddinger, 633 F.3d 1235, 1240 (10th Cir. 2011). "[M]erely posting information on the internet does not subject the poster to personal jurisdiction wherever that information may be accessed." Id. at 1244. Furthermore, the maintenance of a website does not alone subject the owner or operator to personal jurisdiction because residents of the forum state may access it. Id. at 1241. The Court must look to whether the "defendant deliberately directed its message at an audience in the forum state and intended harm to the plaintiff occurring primarily or particularly in the forum state." Id. Courts have recently focused on whether an internet sales transaction occurs between buyer and seller to determine whether the website owner is intentionally directing its activities or operations at the forum state. See id.; Otter Prod., 2019 WL 4736462, at *4; see also Job Store, Inc. v. Job Store of Loveland, Ohio, LLC, No. 15-cv-02228-PAB-KLM, 2016 WL 9735786, at *5 (D. Colo. Sept. 7, 2016). With cases involving internet sales transactions, rather than the operation of a website alone, courts have held that "a defendant's use of a website to conduct business in the forum state, such as having a website that" customers in the forum state have accessed and on which the customers have purchased the alleged infringing product, provides a basis for a court's exercise of personal jurisdiction. See PopSockets, 2019 WL 7168661, at *3 (citations omitted).
Plaintiff argues that the Court has personal jurisdiction over Defendant Sloan because (1) Defendant Sloan operates a commercial website, which sells products to consumers throughout the nation; (2) Defendant Sloan has placed his products "into the stream of commerce with the expectation they would reach all fifty states, including Colorado"; (3) Defendant Sloan's website is "accessible to Colorado consumers"; (4) Defendant Sloan did not implement "any policies or controls to prevent sales in Colorado"; and (5) Defendant Sloan has "sold products to Colorado consumers." Response [#12] at 5.
In Otter Products, LLC v. Phone Rehab, LLC, 2019 WL 4736462, at *4, the defendants made sales and shipments consisting of 267 separate transactions involving 341 of the alleged infringing products to Colorado from May 2018 to May 2019. Additionally, in that same period, the defendants made sales and shipments consisting of more than one thousand sales transactions involving other products to Colorado. Otter Prod., 2019 WL 4736462, at *4. The Court found that these activities sufficiently met the purposefully directed prong of the analysis. Id.
Similarly, in PopSockets LLC v. Online King LLC, 2019 WL 7168661, at *3, the plaintiff alleged that the defendant purposefully directed its activity to Colorado by selling products with the plaintiff's trademarks to Colorado residents. The plaintiff asserted that the defendant sold a "high volume" of products infringing its mark. PopSockets, 2019 WL 7168661, at *3. The defendant did not dispute that it sold products to Colorado residents but argued that some of the sales were made by the plaintiff to support the lawsuit. Id. at 3-4. The Court found that if the defendant "voluntarily and knowingly made these sales to a Colorado resident, thus purposely directing [its] activity to Colorado" then the sales could not "be the result of [the plaintiff's] unilateral actions." Id. (citations and quotations omitted).
In RE/MAX, LLC v. Shenzhen Remax Co., Ltd, No. 15-cv-02496-REB-SKC, 2019 WL 1081039, at *3 (D. Colo Jan. 18, 2019), the plaintiff only offered evidence that one of its representatives ordered and received three allegedly infringing products at her residence in Colorado. The Court found this evidence concerning because the plaintiff did not prove that the representative ordered those products through the defendant's website and did not offer evidence regarding contacts that the defendant purposefully made. RE/MAX, LLC, 2019 WL 1081039, at *3. The Court emphasized that it must look to the defendant's "volitional conduct, not the conduct of others drawing it into the forum" to determine personal jurisdiction. Id. The plaintiff failed to establish that Colorado residents actually used the website, and the Court stated that, "[a] website, even if interactive, is insufficient to create personal jurisdiction where that website has gone unused by residents of the forum state." Id. (citations and quotations omitted). The Court held that the plaintiff failed to show that the defendant had sufficient minimum contacts with Colorado. Id.
Here, Plaintiff does not sufficiently allege that Defendant Sloan purposefully directed activity at Colorado. Plaintiff alleges that the Court has specific personal jurisdiction because: "(1) Defendants operate a commercial website, www.rimsid.com, through which they use [sic] to make contact with and sell products to consumers throughout the nation; (2) Defendants have placed its products into the stream of commerce with the expectation they would reach all fifty states, including Colorado; (3) Defendants' website is accessible to Colorado consumers; (4) Defendants have not implemented any policies or controls to prevent sales to Colorado; and (5) Defendants have sold products to Colorado consumers." Response [#12] at 5.
First, Plaintiff's allegations involving (1) the operation of the commercial website, (2) Defendant Sloan's products in the stream of commerce throughout the United States, (3) the commercial website's overall accessibility, and (4) the lack of policies or controls to prevent sales to Colorado, are broad statements that do not demonstrate how Defendant Sloan purposefully directed his activities at Colorado residents. Response [#12] at 5. The operation, maintenance, and accessibility of a website alone does not subject Defendant Sloan to personal jurisdiction. Shrader, 633 F.3d at 1241. Additionally, Defendant Sloan only operated the website up to September 23, 2018. Compl. [#1] ¶¶ 38-40. On September 23, 2018, Defendant Sloan incorporated Defendant Sloan Corp., and Defendant Sloan Corp. assumed operation and control of the website. Id. Plaintiff states shortly before June 17, 2019, it discovered Defendants' alleged infringement. Id. ¶ 67. However, Plaintiff does not provide any information as to whether Defendant Sloan was actually operating the website during the time in which it alleges Defendant Sloan made "contact with" and sold products to "consumers throughout the nation," establishing personal jurisdiction. See Response [#12] at 5. Furthermore, even if Defendant Sloan was operating the website at the time and used the website to make products available throughout the United States, this does not demonstrate any type of contact with Colorado specifically. Burger King, 471 U.S. at 472. Plaintiff's sole allegation attempting to create a connection between Defendant Sloan and Colorado is the vague allegation that Defendant Sloan sold products to Colorado consumers. Response [#12] at 5. Plaintiff does not provide any information as to how many products were sold to Colorado consumers and whether the sales were made through the website or by some other means. Id. Plaintiff only alleges that Defendant Sloan admitted to one contact with Colorado, an order that Plaintiff sent to Defendant Sloan. Id.; Motion to Dismiss [#7] at 10. Defendant Sloan states that he received an order from a resident in Colorado on his e-mail but that the order was later canceled on the website. Motion to Dismiss [#7] at 10. Without support, Plaintiff hints that it does not necessarily believe Defendant Sloan on this note but proceeds to argue that this sole contact is sufficient to establish specific jurisdiction. Response [#12] at 6.
In contrast to Otter Products, 2019 WL 4736462, and PopSockets, 2019 WL 7168661, Plaintiff has not demonstrated that Defendant Sloan sold and shipped a "high volume" of allegedly infringing products to Colorado residents. This case is easily differentiated from Otter Products, where the defendant sold and shipped 341 allegedly infringing products to Colorado residents. Plaintiff only indicates that Defendant Sloan received one order and does not allege whether Defendant Sloan fulfilled or shipped that order to an actual Colorado resident. Thus, there is no indication that Defendant Sloan ever made a sale or shipment to a Colorado resident and therefore, actually completed an internet sales transaction. Similarly to RE/MAX, LLC, 2019 WL 1081039, the Court must look to the volitional conduct of Defendant Sloan and whether Defendant Sloan's website has actually been used by Colorado residents. Plaintiff has not demonstrated how Defendant Sloan created any contacts with Colorado residents, other than, at most, by receiving one order that was later cancelled. Receiving an order is far removed from the actual sale and shipment of an allegedly infringing product and therefore, it is unclear how Defendant Sloan purposefully directed any activities at Colorado residents.
Additionally, because Plaintiff has not demonstrated that Defendant Sloan purposefully directed activities at Colorado residents, the Court need not consider whether Plaintiff's injuries arose from Defendant Sloan's activities in Colorado. See, e.g., Job Store, lnc., 2016 WL 9735786, at *6. Accordingly, the Court finds that Plaintiff has failed to sufficiently allege that Defendant Sloan purposefully directed his activities at Colorado or that its injuries arose from Defendant Sloan's contacts with Colorado, and thus has failed to show that the Court has specific jurisdiction over Defendant Sloan.
The Court therefore recommends that the Motion [#7] be granted to the extent that all claims against Defendant Sloan be dismissed without prejudice based on lack of personal jurisdiction. See Hollander v. Sandoz Pharm. Corp., 289 F.3d 1193, 1216 (10th Cir. 2002) (holding that the district court should have dismissed the plaintiffs' claims against the defendant without prejudice after it found a lack of personal jurisdiction).
C. Motion for Default Judgment [#36]
Finally, Plaintiff filed a Motion for Default Judgment [#36] requesting default judgment and entry of a permanent injunction against Defendant Sloan Corp.
Pursuant to Fed. R. Civ. P. 55 the Clerk of Court must enter default if the "party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend." When a plaintiff seeks default judgment against a defendant who has failed to appear or otherwise defend, the Court must first determine whether it has jurisdiction over the subject matter and the parties. Dennis Garberg &Assocs., Inc. v. Pack-Tech Int'l Corp., 115 F.3d 767, 771 (10th Cir. 1997). "Whether jurisdiction exists must be determined from the facts alleged in the Complaint, without regard to conclusory allegations of jurisdiction." Procom Supply, LLC v. Langner, No. 12-cv-00391-MSK-KMT, 2012 WL 4856724, at *2 (D. Colo. Oct. 11, 2012) (citing Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971)). "The party seeking the exercise of jurisdiction in [its] favor 'must allege in [its] pleading the facts essential to show jurisdiction.'" Penteco Corp. Ltd. P'ship-1985A v. Union Gas Sys., Inc., 929 F.2d 1519, 1521 (10th Cir. 1991) (quoting McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936)).
1. Subject Matter Jurisdiction
Plaintiff asserts that subject matter jurisdiction in this case is based on 15 U.S.C. § 1121, 28 U.S.C. § 1331, and 28 U.S.C. § 1338. Under 15 U.S.C. § 1121, Federal District Courts of the United States have original jurisdiction over actions arising under the Lanham Act, 15 U.S.C. §§ 1501 et seq., without regard to the amount in controversy or diversity of the citizenship of the parties. The Lanham Act governs trademarks, service marks, and unfair competition. 15 U.S.C. §§ 1501 et seq. 28 U.S.C. § 1331 provides Federal District Courts with original jurisdiction over federal questions and 28 U.S.C. § 1338 provides Federal District Courts with original jurisdiction over any action arising under any Act of Congress relating to trademarks and unfair competition when joined with a "substantial and related claim under . . . trademark laws."
Here, Plaintiff brings claims for the following alleged violations of the Lanham Act: (1) trademark counterfeiting and trademark infringement, 15 U.S.C. § 1114; (2) unfair competition and false designation of origin, 15 U.S.C. § 1125(a); (3) dilution, 15 U.S.C. § 1125(c); and (4) cybersquatting, 15 U.S.C. § 1125(d). Complaint ¶¶ 77-121. Because Plaintiff is bringing claims under the Lanham Act, in regards to its trademarks, the Court finds that it has subject matter jurisdiction under 15 U.S.C. § 1121, 28 U.S.C. § 1331, and 28 U.S.C. § 1338.
2. Personal Jurisdiction
Personal jurisdiction over Defendant Sloan Corp. is also required before default judgment may be entered. Bixler v. Foster, 596 F.3d 751, 761 (10th Cir. 2010). In determining personal jurisdiction on a motion for default judgment, the Court does not assert defenses on behalf of the non-moving party, but rather "exercises its responsibility to determine that it has the power to enter the default judgment." Williams v. Life Sav. & Loan, 802 F.2d 1200, 1202 (10th Cir. 1996) (citing V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 225 (10th Cir. 1979)). Plaintiff "need only make a prima facie showing [of personal jurisdiction] . . . if the motion [for default judgment] is decided only on the basis of the parties' affidavits and other written materials." Dennis Garberg & Assocs., Inc., 115 F.3d at 773.
Here, the analysis is materially identical to the analysis the Court performed above as to its personal jurisdiction over Defendant Sloan. Plaintiff argues that the Court has specific jurisdiction over both Defendant Sloan and Defendant Sloan Corp. and uses the same set of facts and evidence to do so. Response [#12] at 3-9. "In determining whether a federal court has personal jurisdiction over a defendant, the court must determine (1) whether the applicable statute potentially confers jurisdiction by authorizing service of process on the defendant and (2) whether the exercise of jurisdiction comports with due process." Trujillo, 465 F.3d at 1217 (quoting Peay, 205 F.3d at 1209). Under the due process clause, the party must have sufficient "minimum contacts" with the state, so that the exercise of jurisdiction would not violate "traditional notions of fair play and substantial justice." Burger King, 471 U.S. at 474 (quoting Int'l Shoe Co., 326 U.S. at 316).
Here, Plaintiff does not sufficiently allege that Defendant Sloan Corp. purposefully directed activity at Colorado residents. Again, Plaintiff alleges that (1) the operation of the commercial website, (2) Defendant Sloan Corp.'s products in the stream of commerce throughout the United States, (3) the commercial website's overall accessibility, and (4) the lack of policies or controls to prevent sales to Colorado, provide for specific jurisdiction over Defendant Sloan Corp. However, as previously discussed, these four statements are overly broad and do not demonstrate how Defendant Sloan Corp. purposefully directed its activities at Colorado residents. Response [#12] at 5. The operation, maintenance, and accessibility of a website alone does not subject Defendant Sloan Corp. to personal jurisdiction. Shrader, 633 F.3d at 1241. Furthermore, having products available throughout the United States does not demonstrate that Defendant Sloan Corp. had any type of "minimum contacts" with Colorado residents specifically. Burger King, 471 U.S. at 472. Again, Plaintiff's sole allegation which could potentially create a connection between Defendant Sloan Corp. and Colorado is the allegation that Defendant Sloan Corp. sold products to Colorado consumers. Response [#12] at 5. However, Plaintiff does not provide any information as to whether Defendant Sloan Corp. actually made any sales to Colorado consumers. Id. Plaintiff only alleges that Defendants admitted to one contact with Colorado and does not specify whether it was Defendant Sloan or Defendant Sloan Corp. that admitted to this contact. Id. at 6; Motion to Dismiss [#7] at 10. Plaintiff does not indicate whether Defendant Sloan Corp. ever fulfilled or shipped an order to a Colorado resident and it is unknown whether Defendant Sloan Corp. ever completed an internet sales transaction. See Response [#12].
Accordingly, Plaintiff fails to demonstrate that Defendant Sloan Corp. purposefully directed its activities at Colorado residents, and thus has failed to show that the Court has specific jurisdiction and thus, personal jurisdiction over Defendant Sloan Corp. Therefore, the Court recommends that the Motion for Default Judgment [#36] be denied and that all claims asserted against Defendant Sloan Corp. be dismissed without prejudice based on lack of personal jurisdiction over Defendant Sloan Corp.
IV. Conclusion
Based on the foregoing reasons,
The Court respectfully RECOMMENDS that the Motion to Dismiss [#7] be GRANTED, that the Motion to Strike [#11] be GRANTED, that the Motion for Default Judgment [#36] be DENIED, and that all claims asserted against Defendant Sloan and Defendant Sloan Corp. be DISMISSED without prejudice based on lack of personal jurisdiction.
IT IS ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall have fourteen (14) days after service of this Recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. A party's failure to serve and file specific, written objections waives de novo review of the Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party's objections to this Recommendation must be both timely and specific to preserve an issue for de novo review by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).
Dated: March 26, 2020
BY THE COURT:
/s/
Kristen L. Mix
United States Magistrate Judge