Opinion
01 C 1604
March 11, 2002
ORDER
Plaintiff, TY, Inc., manufactures and sells the popular plush toys called "Beanie Babies." Defendant, Karen Sullivan d/b/a EBeanies On Line, operates a website from her Florida residence that allows browsers to order and pay for plaintiffs products at a slight mark-up. Plaintiff filed the instant suit against defendant on April 19, 2001, alleging trademark and copyright infringement as well as other claims. Defendant moved to dismiss the instant suit on June 6, 2001, arguing lack of personal jurisdiction and improper venue. Defendant subsequently sought a stay while she attempted to obtain counsel. For the reasons explained below, defendant's motions are denied.
At issue in this case is whether the court has personal jurisdiction over defendant even though her contact with Illinois has been through Internet sales only. The court concludes that it does. Defendant has established minimum contacts with Illinois such that the court's jurisdiction is reasonable and fair under the circumstances. See RR Inc. v. Turner Diesel, Ltd., 107 F.3d 1272 (7th Cir. 1997); Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476-77 (1985). Defendant admits that she has sold 38 of plaintiff's products to twelve buyers residing in Illinois over the past five years. Thus, under 735 ILCS § 5/2-209(a)(1), Illinois' Long-Arm Statute, defendant has transacted business in Illinois. Further, the instant case arose out of those sales, among others. Therefore, the court finds that defendant purposefully availed herself of the privilege of doing business in Illinois, satisfying the minimum contacts requirement. MdGowen et al. v. Woodsmall Ben: Services, Inc., 554 N.E.2d 704 (Ill.App.Ct. 1990) (finding that jurisdiction is proper in a state where a single transaction gives rise to the cause of action and amounts to defendant's purposeful availment of the forum state).
The fact that defendant's contact with Illinois has been limited to Internet sales does not alter this conclusion. Applying the "sliding scale" test adopted in this district for cases involving Internet websites, the fact that defendant's company takes orders and receives. payment from Illinois residents directly through its Internet site indicates that jurisdiction is proper. Berthold Types Ltd. v. European Mikrograf Corp., 102 F. Supp.2d 928 (N.D. Ill. 2000) (explaining the "sliding scale" test and the "actively conducting business" prong thereof); International Star Registry of Illinois v. Bowman-Haight Ventures, Inc., 1999 WL 300285 at *6, 1999 U.S. Dist. LEXIS 7009 (N.D. Ill. May 6, 1999) (finding jurisdiction proper in analogous circumstances); see also Euromarket Designs, Inc. v. Crate Barrel Ltd., 96 F. Supp.2d 824, 837-39 (N.D. Ill. 2000). Thus, plaintiff has established that the court has personal jurisdiction over defendant.
To overcome plaintiff's showing, defendant must present a compelling case that other considerations render the court's exercise of jurisdiction unreasonable. Burger King, 471 U.S. at 477; International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). To this end, defendant argues that she is representing herself pro se, she has never lived, maintained an office, or advertised in Illinois, and she has never purchased plaintiffs products directly from plaintiff or any of its Illinois dealers. The court is not convinced. Defendant has purposefully conducted business with Illinois residents for a profit, her claims that defending the instant case here would be "inconvenient and difficult" are vague, and Illinois has a strong interest in adjudicating the alleged infringement of plaintiffs trademark. Hence, the court finds that exercising jurisdiction in the instant case comports with traditional notions of fair play and substantial justice. Id.
with respect to defendant's motion to dismiss due to improper venue, plaintiff correctly points out that venue is proper in "a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred." 28 U.S.C. § 1391(b). Plaintiff is also correct that the infringement of intellectual property rights is considered a tort in Illinois and, in tort law, "a key operative factor for determining the locus of the tort is the place where the plaintiff sustained its injury." Habitat Wallpaper Blinds. Inc. v. K. T. Scott Ltd. Partnership, 807 F. Supp. 470, 473 (N.D. Ill. 1992). In the instant case, plaintiff suffered its alleged injury in Illinois, its state of residence. Thus, the court denies defendant's motion to dismiss due to improper venue.
Finally, the court denies defendant's motion to stay the instant proceedings in order to provide her with additional time to obtain counsel. Defendant made that request over eight months ago now, during which time there have been no developments (to the court's knowledge) in the instant case. As a result, the court concludes that defendant has had ample time in which to obtain counsel.
In conclusion, both of defendant's motions are denied. The parties are ordered to appear via telephone for a status hearing in this matter at 8:50 a.m. on March 28, 2002. Plaintiff is directed to place a conference call to the court's chambers at (312) 435-5543 at or just prior to the time set for the status hearing.