King Tuna, Inc. v. Anova Food, Inc.

Reply to Motion to Dismiss for Lack of Jurisdiction and Improper Venue 16 .

D. Or.October 2, 2007

Page 1 - REPLY MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND IMPROPER VENUE Shawn M. Lindsay, OSB 02069 ShawnLindsay@MHGM.com MARKOWITZ, HERBOLD, GLADE & MEHLHAF, P.C. Suite 3000 Pacwest Center 1211 S.W. Fifth Avenue Portland, OR 97204-3730 Tel: (503) 295-3085 Fax: (503) 323-9105 Of Attorneys for Defendant Anova Food, Inc. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON KING TUNA, INC., a California corporation, Plaintiff, v. ANOVA FOOD, INC., a Georgia corporation, Defendant. No. 07-6191-TC REPLY MEMORANDUM In Support Of Defendant’s Motion To Dismiss For Lack Of Personal Jurisdiction And Improper Venue Hearing: Date: October 25, 2007 Time: 3:00 p.m. ARGUMENT IN REPLY The Court has previously explained, “the imposition of broad territorial concepts of personal jurisdiction on the commercial uses of the Internet has dramatic implications” and threatens to open up small businesses to the “litigious nightmare of being subject to suit in every jurisdiction in this country.” Millennium Enters., Inc. v. Millennium Music, LP, 33 F. Supp. 2d 907, 921 (D. Or. 1999). The Ninth Circuit has stated that there must be “something more” than Internet activity to establish “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, Case 6:07-cv-06191-TC Document 39 Filed 10/02/07 Page 1 of 26 Page ID#: 176 Page 2 - REPLY MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND IMPROPER VENUE 418 (9th Cir. 1997). Indeed, the nature of the Internet requires courts to be cautious about avoiding “the unjustifiable extreme of universal jurisdiction” based on ownership of a website and, consequently, “the mere existence of a worldwide website, regardless of whether the site is active or passive, is an insufficient basis on which to find that the advertiser has purposely directed its activities at residents of the forum state.” Digital Control Inc. v. Boretronics, Inc., 161 F. Supp. 2d 1183, 1186-87 (W.D. Wash. 2001) (emphasis added) (copy attached). Undeterred, King Tuna, Inc. (“King Tuna”) insists that it can sue Anova Food, Inc. (“Anova”) in Oregon solely on the basis of one shipment to an unrelated third-party in Salem, Oregon and, apparently, on the basis of a worldwide website. King Tuna also argues, incorrectly, that Anova purposefully availed itself of Oregon’s laws by filing its motion to disqualify plaintiff’s counsel in this case. Jurisdiction is lacking, and dismissal is appropriate. Furthermore, King Tuna’s attempt to avoid dismissal by requesting jurisdictional discovery should be rejected. A plaintiff who fails to make a prima facie case for jurisdiction over the defendants is not entitled to discovery, Butchers’ Union Local No. 498 v. SDC Inv., Inc., 788 F. 2d 535, 541 (9th Cir. 1986); United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, (1st Cir. 2001); Tuttle v. Lorillard Tobacco Co., 118 F. Supp.2d 954, 959 (D. Minn. 2000), and the “refusal to grant discovery cannot be reversed except upon the clearest showing that the dismissal resulted in actual and substantial prejudice to the litigant,” Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 430 n.24 (9th Cir. 1977). I. Anova did not and does not direct its activities toward Oregon. King Tuna’s stab at Oregon jurisdiction rests solely on a specific-jurisdiction theory. It concedes, by failing to argue the point, that general jurisdiction does not exist here. (Pl.’s Opp’n Mem. at p. 7.) Specific jurisdiction requires that a defendant’s contacts with a forum state be Case 6:07-cv-06191-TC Document 39 Filed 10/02/07 Page 2 of 26 Page ID#: 177 Page 3 - REPLY MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND IMPROPER VENUE directly related to the dispute. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). King Tuna can point to no activities in Oregon that have anything to do with the parties themselves. It also fails to declare its business dealings in Oregon. In an attempt to show the Constitutionally-mandated “minimum contact,” King Tuna alleges that an unrelated third-party resident of Salem, Mr. Jeff Trembly, placed a one-time order through Anova’s website in March 2007. (Pl.’s Opp’n Mem. at p.4.) Although King Tuna has not made that factual allegation in its complaint, it maintains that, by Mr. Trembly’s one-time unsolicited order via Internet, jurisdiction lies in Oregon. (Pl.’s Opp’n Mem. at pp. 7-8.) King Tuna, not surprisingly, cites no case finding jurisdiction in such circumstances. The contacts with Mr. Trembly are irrelevant at any rate. “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.” Tech Heads, Inc. v. Desktop Serv. Ctr., 105 F. Supp.2d 1142, 1151 (D. Or. 2000).1 Anova’s response to an Internet order by Mr. Trembly does not amount to a “systematic and continuous relationship” between Anova and Oregon. NMOTION, Inc. v. Environmental Tectonics Corp., 196 F. Supp. 2d 1051, 1057 (D. Or. 2001). To clarify the record, Anova attempted to sell tuna via an interactive Internet website during a seventeen-month time period from April 2006 until August 2007. (Supplemental Declaration of Doug Brinsmade in Support of Motion To Dismiss For Lack Of Personal 1 King Tuna relies on Mr. Trembly’s declaration in which he states he purchased four pounds of sashimi grade tuna for $59.97 from Anova’s website. Attached to Mr. Trembly’s declaration are photographs apparently taken at the time of this shipment detailing the Styrofoam shipping container, the shipping label, information on dry ice, and the product’s standard food label. Taking such detailed photographs is highly unusual for an ordinary consumer of frozen fish, and suggests that Mr. Trembly purchased the four pounds of tuna, not for his personal consumption, but for litigation purposes. Case 6:07-cv-06191-TC Document 39 Filed 10/02/07 Page 3 of 26 Page ID#: 178 Page 4 - REPLY MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND IMPROPER VENUE Jurisdiction and Improper Venue, filed contemporaneously herewith (“Brinsmade Suppl. Decl.”), ¶ 2.) During that period, Anova made a total of eight direct sales to seven consumers through the website. (Id.) Those sales totaled just $786.81. (Id.) In view of King Tuna’s memorandum in opposition, Anova re-examined its records and learned that one of the eight Internet sales was to Mr. Trembly on March 20, 2007 and another was to a Ms. Claudia Prevost, a resident of Independence, Oregon, on July 12, 2007. (Id.) Mr. Brinsmade did not know of these two Internet sales when he submitted his original declaration and now clarifies the record with his supplemental declaration. To make clear, Mr. Brinsmade’s statement in his original declaration that Anova made approximately “two or three small shipments that might have been destined to a distributor in Oregon,” these orders were made though a California independent distributor, Pacific Seafood, which requested Anova to make f.o.b. shipment to Pacific Seafood’s satellite office in Oregon. (Id. ¶ 3.) Anova’s sole present means of selling its products is via distributors. (Id.) Direct sales through its website were less than 0.000002% of its total sales in the United States during the above time period. (Id.) II. King Tuna’s bid for jurisdiction rests on nothing more than a one-time purchase by an unrelated third-party via a worldwide website. In the absence of any “continuous and systematic” contacts with Oregon, King Tuna seeks to manufacture jurisdiction over Anova from a one-time sale through Anova’s website. King Tuna posits two intertwined lines of argument. First, it labors against the well-established cases from this Court and the Ninth Circuit holding that a worldwide website – be it active or passive – is insufficient to establish jurisdiction. Second, King Tuna makes conclusory and unsupported assertions alluding to “activities within Oregon,” as if its written repetitions would make it so. Neither approach holds water. Case 6:07-cv-06191-TC Document 39 Filed 10/02/07 Page 4 of 26 Page ID#: 179 Page 5 - REPLY MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND IMPROPER VENUE The law of the Ninth Circuit is clear: there must be “something more” than Internet activity to establish “that the defendant purposefully (albeit electronically) directed his activity in a substantial way to the forum state.” Cybersell, 130 F.3d at 418 (9th Cir. 1997). Operating an “active” website, through which a consumer in any state can potentially purchase a product, does not create jurisdiction. “The fact that someone who accesses [a] defendants’ Web site can purchase a [product] does not render defendants’ actions ‘purposefully directed’ at this forum.” Millennium Enters., Inc., 33 F. Supp. 2d at 921. The only connection King Tuna points to is the www.anovafoodinc.com website, which for a period of seventeen months offered products for sale, but did not focus specifically on Oregon in any way. King Tuna offers the declaration of Mr. Trembly, but it does not make any difference. According to Mr. Trembly, he bought four pounds of Tuna from Anova’s website, took numerous photos of the shipping container and packaging, and, apparently, sought out King Tuna’s counsel to supply these photos. Like the purchaser of the single compact disc in Millennium, it appears that Mr. Trembly likely purchased the shipment of tuna for litigation purposes. This court in Millennium noted that such a purchase was “nothing more than an attempt by plaintiff to manufacture a contact with this forum sufficient to establish personal jurisdiction . . . [s]uch questionable and unprofessional tactics cannot subject defendants to jurisdiction in this forum.” Id. at 911. III. Anova’s motion to disqualify plaintiff’s counsel is not “purposeful availment” of Oregon’s laws. Oddly, King Tuna offers as a second argument that Anova purposefully availed itself of the laws of Oregon by filing its motion to disqualify King Tuna’s counsel. But the purposeful availment analysis looks to the question of conducting activities in Oregon, and whether a Case 6:07-cv-06191-TC Document 39 Filed 10/02/07 Page 5 of 26 Page ID#: 180 Page 6 - REPLY MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND IMPROPER VENUE particular defendant can reasonably anticipate being haled into court in the subject jurisdiction. The need to file a motion to disqualify has no bearing on this analysis. Id. at 922 (stating, “specific jurisdiction is not proper unless the forum-related contacts give rise or relate to the plaintiff’s cause of action”) (emphasis added.) IV. Oregon jurisdiction is not reasonable. Specific jurisdiction also requires that its exercise “must be reasonable.” Schwarzenegger, 374 F.3d at 802. King Tuna does not attempt to rebut any but one of the seven factors identified in Anova’s motion to dismiss and the case law, making light of the burden of defending a case half a continent away. (Pl.’s Opp’n Mem. at p. 10.) Further, King Tuna’s silence on any business it conducts in Oregon is revealing. Also, King Tuna omits six of the seven factors, such as the fact that Georgia, Florida or Federal Circuit law would apply to their claims; the fact that all of the parties’ are located outside of Oregon; the fact that King Tuna ordinarily handles its legal affairs with an out-of-state lawyer; the fact that a logical alternative forum exists; and the fact that Oregon’s interest in resolving claims arising in Georgia or Florida is minimal, and the fact that King Tuna is not located in Oregon, but is a California corporation with its primary sales and shipping facility in Perth Amboy, New Jersey. (Brinsmade Suppl. Decl. ¶ 4.) By failing to contest these above factors, King Tuna has implicitly conceded them. V. No grounds for discovery exist. Lacking any evidence to justify filing its complaint in Oregon, King Tuna now requests a fishing expedition. Fed. R. Civ. P. 12(b)(2) expressly permits a defendant to move to dismiss at the outset of the case “for lack of jurisdiction over the person.” When jurisdiction is at issue, “plaintiffs bear the burden of . . . making an initial, prima-facie showing of jurisdictional facts at the pleading stage . . . .” Wells Fargo & Co., 556 F.2d at 430 n.24. Before defendants are Case 6:07-cv-06191-TC Document 39 Filed 10/02/07 Page 6 of 26 Page ID#: 181 Page 7 - REPLY MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND IMPROPER VENUE subjected to the considerable expense of discovery and additional briefing, a plaintiff must offer more than speculation that jurisdictional facts might be found. Butchers’ Union, 788 F.2d at 541. Where “a plaintiff offers only speculation or conclusory assertions about contacts with a forum state,” discovery is properly denied. Estate of Bank v. Swiss Valley Farms Co., 286 F. Supp. 2d 514 (D. Md. 2003) (quoting Carefirst of Maryland, Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 402 (4th Cir. 2003)) (copy attached). The Ninth Circuit has also made clear it “will not interfere with the trial court’s refusal to grant discovery except upon the clearest showing” of “actual and substantial prejudice[.]” Wells Fargo & Co., 556 F.2d at 430 n.24. For instance, in Butchers’ Union, 788 F.2d at 541, the Ninth Circuit upheld the trial court’s denial of jurisdictional discovery where the plaintiffs, like here, submitted only that they “believe[d]” discovery would establish contacts. “This speculation,” the appeals court wrote, “does not satisfy the requirement that they make the ‘clearest showing of actual and substantial prejudice.’” Id. This case, in fact, is on all fours with Estate of Bank. There, like here, the plaintiffs sought to establish jurisdiction as a result of the defendant’s interactive website. There, like here, the plaintiffs responded to a motion to dismiss by asking the court to authorize a “fishing expedition” for evidence of Internet sales to [forum] residents, the existence of which defendant affirmatively denies. Id. There, like here, the plaintiffs “offered no more than bare allegations” compared with declarations “by the defendant denying the existence of contacts.” Id. The district court there denied the request, writing that the plaintiffs fell “far short” of meeting the standard for obtaining jurisdictional discovery. Here, King Tuna’s discovery request should meet with a similar fate and be rejected. Case 6:07-cv-06191-TC Document 39 Filed 10/02/07 Page 7 of 26 Page ID#: 182 Page 8 - REPLY MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND IMPROPER VENUE CONCLUSION King Tuna fails to argue that general jurisdiction exists here and, consequently, concedes that point. Its assertion of specific jurisdiction is based on one isolated Internet sale to an unrelated third-party totaling less than $120.00. Accordingly, Anova’s motion to dismiss for lack of personal jurisdiction and improper venue should be granted. DATED this 2nd day of October, 2007. MARKOWITZ, HERBOLD, GLADE & MEHLHAF, P.C. By: /s/ Shawn M. Lindsay Shawn M. Lindsay, OSB #02069 (503) 295-3085 Of Attorneys for Defendant KINGAN\137784 Case 6:07-cv-06191-TC Document 39 Filed 10/02/07 Page 8 of 26 Page ID#: 183 Digital Control Inc. v. Boretronics Inc. W.D.Wash.,2001. United States District Court,W.D. Wash- ington, At Seattle. DIGITAL CONTROL INCORPORATED, Plaintiff, v. BORETRONICS INC. and Willie Lessard, Defendants. No. C01-0074L. Sept. 6, 2001. Owner of patents for transmitters designed to assist in remote control of underground drilling operations sued competitor for in- fringement. On defendant's motion to dis- miss for lack of personal jurisdiction, the District Court, Lasnik, J., held that exercise of personal jurisdiction would not comport with due process. Motion granted. West Headnotes [1] Federal Civil Procedure 170A 1825 170A Federal Civil Procedure 170AXI Dismissal 170AXI(B) Involuntary Dismissal 170AXI(B)5 Proceedings 170Ak1825 k. Motion and Proceedings Thereon. Most Cited Cases Federal Civil Procedure 170A 1835 170A Federal Civil Procedure 170AXI Dismissal 170AXI(B) Involuntary Dismissal 170AXI(B)5 Proceedings 170Ak1827 Determination 170Ak1835 k. Matters Deemed Admitted. Most Cited Cases Where motion to dismiss for lack of per- sonal jurisdiction is decided without bene- fit of evidentiary hearing, plaintiff need only make prima facie showing that juris- diction is proper, with all disputed facts construed in light most favorable to plaintiff. Fed.Rules Civ.Proc.Rule 12(b)(2), 28 U.S.C.A. [2] Federal Courts 170B 417 170B Federal Courts 170BVI State Laws as Rules of De- cision 170BVI(C) Application to Particular Matters 170Bk417 k. Federal Jurisdiction. Most Cited Cases District court's determination of its person- al jurisdiction over defendant is made by reference to law of state in which it sits. [3] Courts 106 12(2.1) 106 Courts 106I Nature, Extent, and Exercise of Jurisdiction in General 106k10 Jurisdiction of the Person 106k12 Domicile or Residence of Party 106k12(2) Actions by or Against Nonresidents; “Long-Arm” Juris- diction in General 106k12(2.1) k. In General. Most Cited Cases Washington's long arm statute extends court's personal jurisdiction to limits of federal due process. U.S.C.A. Const.Amend. 14; West's RCWA 4.28.185. [4] Courts 106 96(7) 106 Courts 106II Establishment, Organization, and Procedure 106II(G) Rules of Decision 161 F.Supp.2d 1183 Page 1 161 F.Supp.2d 1183 (Cite as: 161 F.Supp.2d 1183) © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. Case 6:07-cv-06191-TC Document 39 Filed 10/02/07 Page 9 of 26 Page ID#: 184 106k88 Previous Decisions as Controlling or as Precedents 106k96 Decisions of United States Courts as Authority in Other United States Courts 106k96(7) k. Particular Questions or Subject Matter. Most Cited Cases Law of Federal Circuit determines whether exercise of personal jurisdiction comports with requirements of due process in patent infringement actions. U.S.C.A. Const.Amend. 5. [5] Constitutional Law 92 3965(3) 92 Constitutional Law 92XXVII Due Process 92XXVII(E) Civil Actions and Pro- ceedings 92k3961 Jurisdiction and Venue 92k3965 Particular Parties or Circumstances 92k3965(3) k. Business, Business Organizations, and Corporations in General. Most Cited Cases (Formerly 92k305(5)) Court's exercise of personal jurisdiction over defendant in patent case comports with due process if: (1) defendant purpose- fully directed activities at residents of for- um state; (2) injuries for which recovery is sought arise out of or are related to defend- ant's activities; and (3) assertion of person- al jurisdiction over defendant comports with traditional notions of fair play and substantial justice. U.S.C.A. Const.Amend. 5. [6] Constitutional Law 92 3965(3) 92 Constitutional Law 92XXVII Due Process 92XXVII(E) Civil Actions and Pro- ceedings 92k3961 Jurisdiction and Venue 92k3965 Particular Parties or Circumstances 92k3965(3) k. Business, Business Organizations, and Corporations in General. Most Cited Cases (Formerly 92k305(5)) Patents 291 288(3) 291 Patents 291XII Infringement 291XII(C) Suits in Equity 291k288 Jurisdiction 291k288(3) k. Residence and Place of Infringement. Most Cited Cases Exercise of personal jurisdiction over non- resident patent infringement defendant would not comport with due process; al- though defendant had advertised nation- wide via web site, industry journal advert- isements and toll-free telephone number, it had received no inquiries or orders from forum residents. U.S.C.A. Const.Amend. 5. [7] Federal Courts 170B 76.5 170B Federal Courts 170BII Venue 170BII(A) In General 170Bk76 Actions Against Non- Residents; “Long-Arm” Jurisdiction in General 170Bk76.5 k. Contacts with Forum State. Most Cited Cases Until advertiser is actually faced with and makes choice to dive into particular forum, mere existence of worldwide web site, re- gardless of whether site is active or pass- ive, is insufficient basis on which to find that advertiser has purposely directed its activities at residents of forum state, for purpose of determining personal jurisdic- tion. *1184 Brian Chung Park,Dorsey & Whit- ney LLP, Seattle, WA, for Digital Control Inc, a Washington corporation, Plaintiff. Stuart R. Dunwoody, Davis Wright Tre- maine LLP, Seattle, WA, Jeffrey R. Stone, 161 F.Supp.2d 1183 Page 2 161 F.Supp.2d 1183 (Cite as: 161 F.Supp.2d 1183) © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. Case 6:07-cv-06191-TC Document 39 Filed 10/02/07 Page 10 of 26 Page ID#: 185 Kurt J. Niederluecke, Briggs & Morgan, St Paul, MN, for Boretronics Inc, a Minnesota corporation, Willie Lessard, a Minnesota resident, Regence Blueshield, a Washing- ton corp., Defendants. ORDER GRANTING MOTION TO DIS- MISS FOR LACK OF PERSONAL JUR- ISDICTION LASNIK, District Judge. [1] This matter comes before the Court on “Defendants' Motion to Dismiss for Lack of Personal Jurisdiction.” This litigation arises out of defendants' alleged infringe- ment of various patents held by plaintiff on transmitters designed to assist in the re- mote control of underground drilling oper- ations. Defendants, residents of Minnesota, seek dismissal of plaintiff's *1185 claims for lack of personal jurisdiction. Because this issue is being decided without the be- nefit of an evidentiary hearing, plaintiff need only make a prima facie showing that jurisdiction is proper in this district, with all disputed facts construed in the light most favorable to plaintiff. See Graphic Controls Corp. v. Utah Med. Prods., 149 F.3d 1382, 1383 n. 1 (Fed.Cir.1998). [2][3] “The district court's determination of a party's amenability to suit is made by ref- erence to the law of the state in which it sits.” Peterson v. Kennedy, 771 F.2d 1244, 1262 n. 12 (9th Cir.1985), cert. denied,475 U.S. 1122, 106 S.Ct. 1642, 90 L.Ed.2d 187 (1986). Washington's long arm statute, RCW 4.28.185, provides six separate bases for the exercise of jurisdiction, only two of which are potentially applicable here: (1) the “transaction of any business within this state” and (2) the “commission of a tortious act within this state.” Despite the rather narrow terms of the statute, the Washing- ton Supreme Court has held that the state's long-arm statute “extends jurisdiction to the limit of federal due process.” Shute v. Carnival Cruise Lines, 113 Wash.2d 763, 771, 783 P.2d 78 (1989). [4][5] Both plaintiff and defendants agree that the law of the Federal Circuit determ- ines whether the exercise of personal juris- diction comports with the requirements of due process in patent infringement actions. The Federal Circuit applies a three-part test: (1) defendants must have “purposefully directed [their] activities at the residents” of the forum state; (2) the in- juries for which recovery is sought must have arisen out of or be related to defend- ants' activities; and (3) the assertion of per- sonal jurisdiction over defendants must comport with traditional notions of fair play and substantial justice. Akro Corp. v. Luker, 45 F.3d 1541, 1545-46 (Fed.Cir.), cert. denied,515 U.S. 1122, 115 S.Ct. 2277, 132 L.Ed.2d 281 (1995). [6] The relevant facts regarding defendants' contacts with Washington state are undis- puted.FN1 After designing and manufac- turing a product which allegedly infringed on plaintiff's patents, defendants placed ad- vertisements in two industry journals, cre- ated a web site on which its products were offered for sale, and maintained a toll-free phone number to handle customer inquiries and orders. The journals, web site, and phone number all had national scope and could be accessed by residents of Washing- ton. Defendants managed to sell one of the offending products to a company in Florida before being notified that plaintiff believed the products infringed their patents. De- fendants ceased operations shortly there- after. Defendants did not receive any in- quiries from or make any sales to the cit- izens of Washington. Other than the na- tionwide solicitations discussed above, de- fendants made no other effort to cultivate a market in this state. FN1. For purposes of this discus- sion, the Court will assume, as 161 F.Supp.2d 1183 Page 3 161 F.Supp.2d 1183 (Cite as: 161 F.Supp.2d 1183) © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. Case 6:07-cv-06191-TC Document 39 Filed 10/02/07 Page 11 of 26 Page ID#: 186 plaintiff has done, that Mr. Lessard is the alter ego of Boretronics such that the actions and conduct of one should be attributed to the other. Under the facts presented here, the Court finds that defendants' limited contacts with the State of Washington are not such that they “should reasonably anticipate being haled into court” here. World-Wide Volk- swagen v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). While there are a few analogous cases which could support plaintiff's assertion of jurisdiction, FN2 none of those cases is from the Federal Circuit and they generally involve claims that the Internet advertise- ment*1186 itself infringed on a patent or trademark. In Inset Sys., Inc. v. Instruction Set, Inc., 937 F.Supp. 161 (D.Conn.1996), for example, the defendant's web site used a domain address which infringed plaintiff's trademark. Thus, the availability of defendant's web site in the forum state was, in and of itself, a source of continuing injury as plaintiff's potential customers in- advertently hit defendant's site and/or were confused by the similarity of names, products, and services. More importantly for purposes of this motion, the legal ana- lysis in Inset is far from compelling: after citing two cases in which national advert- ising was coupled with inquiries from, cor- respondence with, and sales to citizens of the forum state, the court jumped to the conclusion that the ready availability of the Internet and its potential to reach thousands of Connecticut residents justified the exer- cise of jurisdiction over defendant even though there was no indication that the of- fending web site had actually been seen by a Connecticut resident or that defendant had engaged in any commercial activity within the forum. As recognized by another court, Inset represents the “outer limits” of the personal jurisdiction analysis. Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119, 1125 (W.D.Pa.1997). FN2. See Haelan Prods., Inc. v. Beso Biological Research, Inc., 43 U.S.P.Q.2d 1672 (E.D.La.1997); In- set Sys., Inc. v. Instruction Set, Inc., 937 F.Supp. 161 (D.Conn.1996). [7] The vast majority of the cases cited by the parties and the law of the Ninth Circuit require something more than nationwide advertising in order to justify the exercise of personal jurisdiction.FN3 Given the nature of the Internet and the purpose be- hind the jurisdictional analysis, the “web site plus” rule developing in the case law appears to be a good rule of thumb for evaluating jurisdiction-creating contacts in Internet cases. Such an analysis avoids the unjustifiable extreme of universal jurisdic- tion while at the same time subjecting de- fendants to suit wherever they have pur- posely directed their activities. Posting in- formation on a web site tells one very little about the purpose or intent of the advert- iser. The medium, by its very nature, provides immediate and virtually uncon- trollable worldwide exposure. While the advertiser may in fact be willing to engage in commerce with anyone anywhere in the world, it may simply be seeking customers in a very localized area commensurate with its distribution or service facilities. Until the advertiser is actually *1187 faced with and makes the choice to dive into a particu- lar forum, the mere existence of a world- wide web site, regardless of whether the site is active or passive, is an insufficient basis on which to find that the advertiser has purposely directed its activities at res- idents of the forum state. FN3. See 3D Sys., Inc. v. Aarotech Labs., Inc., 160 F.3d 1373 (Fed.Cir.1998) (subsidiary was sub- ject to personal jurisdiction after it responded to e-mail inquiries from 161 F.Supp.2d 1183 Page 4 161 F.Supp.2d 1183 (Cite as: 161 F.Supp.2d 1183) © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. Case 6:07-cv-06191-TC Document 39 Filed 10/02/07 Page 12 of 26 Page ID#: 187 the forum, issued price quotes on request, discussed the product with a potential partner, purchased parts from the forum, and sent promo- tional materials to the forum state; parent's maintenance of web site did not establish personal jurisdiction where all inquiries were forwarded to and handled by the subsidiary); Intercon, Inc. v. Bell Atlantic Inter- net Solutions, Inc., 205 F.3d 1244 (10th Cir.2000) (defendant's contin- ued use of a server in the forum state, even after it learned that it was not authorized to do so, that the server was located in the forum state, and that the excess use was causing problems for the true own- er, supported jurisdiction); Com- puServe, Inc. v. Patterson, 89 F.3d 1257 (6th Cir.1996) (defendant's contract with plaintiff, which con- templated continued use of plaintiff's server in the forum state, supported jurisdiction); CoolSav- ings.Com., Inc. v. IQ Commerce Corp., 53 F.Supp.2d 1000 (N.D.Ill.1999) (defendant's interact- ive coupon web site was an in- fringement which, coupled with na- tionwide access to the site, actual use by citizens of the forum state, and additional efforts to create a market in the forum state, justified the exercise of personal jurisdic- tion); Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (W.D.Pa.1997) (web site which res- ulted in thousands of contracts with residents of the forum state suppor- ted jurisdiction). See also Shute v. Carnival Cruise Lines, 897 F.2d 377, 381 (9th Cir.1990) (solicitation of business within the forum “will generally be considered purposeful availment if that solicitation results in contract negotiations or the trans- action of business”), rev'd on other grounds,499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991). In the case at hand, there is no evidence from which the Court could conclude that defendants have availed themselves of the privilege of conducting business in Wash- ington or otherwise made the purposeful decision to market products to residents of this State. Had defendants received an in- quiry or order from a Washington resident, they could then have determined whether, in light of their business plan and the laws of the forum, they wanted to jump into this market and potentially subject themselves to litigation here. Based on the undisputed facts in this case, defendants never had such an opportunity. The Court finds that defendants' use of indiscriminate, nation- wide forms of advertising does not give rise to an inference of purposeful or delib- erate action toward Washington residents and would not cause defendants to anticip- ate being haled into court here.FN4 FN4. To the extent plaintiff argues that the mere offer to sell the in- fringing products in Washington creates sufficient minimum contacts with the forum, no injury is associ- ated with the unaccepted offers made in this case and the Federal Circuit has generally considered such a statutory violation only in the context of the “arising out of” prong of the jurisdictional analysis. See Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558, 1571 (Fed.Cir.1994); 3D Sys., Inc., 160 F.3d at 1378. Even if an offer to sell an infringing product could create the necessary minimum con- tacts on which personal jurisdiction could be founded, it is not at all clear that the exercise of jurisdic- 161 F.Supp.2d 1183 Page 5 161 F.Supp.2d 1183 (Cite as: 161 F.Supp.2d 1183) © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. Case 6:07-cv-06191-TC Document 39 Filed 10/02/07 Page 13 of 26 Page ID#: 188 tion over defendants in this case would be reasonable and fair under the third prong of Akro. For all of the foregoing reasons, defend- ants' motion to dismiss for lack of personal jurisdiction is GRANTED. The Clerk of Court is directed to enter judgment without prejudice in favor of defendants and against plaintiff. W.D.Wash.,2001. Digital Control Inc. v. Boretronics Inc. 161 F.Supp.2d 1183 END OF DOCUMENT 161 F.Supp.2d 1183 Page 6 161 F.Supp.2d 1183 (Cite as: 161 F.Supp.2d 1183) © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. Case 6:07-cv-06191-TC Document 39 Filed 10/02/07 Page 14 of 26 Page ID#: 189 Estate of Bank v. Swiss Valley Farms Co. D.Md.,2003. United States District Court,D. Maryland. ESTATE of Stephen BANK, et al. v. SWISS VALLEY FARMS, CO. No. CIV. JFM-02-3102. Sept. 30, 2003. Estate of deceased employee brought ac- tion alleging various tort claims against employer in connection with employee's al- leged exposure to harmful chemicals dur- ing his employment. On employer's motion to dismiss, the District Court, Motz, J., held that: (1) employer's operation of web- site did not subject it to personal jurisdic- tion in Maryland; (2) jurisdictional discov- ery was not warranted; and (3) transfer of venue was warranted. Motion granted. West Headnotes [1] Federal Courts 170B 96 170B Federal Courts 170BII Venue 170BII(A) In General 170Bk96 k. Affidavits and Other Evidence. Most Cited Cases When defendant files motion to dismiss for lack of personal jurisdiction, plaintiff bears burden of proving grounds for jurisdiction by preponderance of evidence. [2] Federal Courts 170B 96 170B Federal Courts 170BII Venue 170BII(A) In General 170Bk96 k. Affidavits and Other Evidence. Most Cited Cases Plaintiff opposing defendant's motion to dismiss for lack of personal jurisdiction must produce competent evidence to sus- tain jurisdiction, including sworn affi- davits. [3] Federal Courts 170B 96 170B Federal Courts 170BII Venue 170BII(A) In General 170Bk96 k. Affidavits and Other Evidence. Most Cited Cases If defendant's motion to dismiss for lack of personal jurisdiction is decided without hearing, plaintiff is required only to make prima facie showing of jurisdiction. [4] Federal Courts 170B 96 170B Federal Courts 170BII Venue 170BII(A) In General 170Bk96 k. Affidavits and Other Evidence. Most Cited Cases In ruling on motion to dismiss for lack of personal jurisdiction, court should draw all reasonable inferences from proof offered by parties in plaintiff's favor. [5] Federal Courts 170B 76.10 170B Federal Courts 170BII Venue 170BII(A) In General 170Bk76 Actions Against Non- Residents; “Long-Arm” Jurisdiction in General 170Bk76.10 k. Defendant's Activities in Forum State; Cause of Action Arising Therefrom. Most Cited Cases Specific personal jurisdiction over nonres- ident defendant is available when plaintiff's claim arises out of defendant's contacts with forum state. [6] Federal Courts 170B 76.5 286 F.Supp.2d 514 Page 1 286 F.Supp.2d 514 (Cite as: 286 F.Supp.2d 514) © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. Case 6:07-cv-06191-TC Document 39 Filed 10/02/07 Page 15 of 26 Page ID#: 190 170B Federal Courts 170BII Venue 170BII(A) In General 170Bk76 Actions Against Non- Residents; “Long-Arm” Jurisdiction in General 170Bk76.5 k. Contacts with Forum State. Most Cited Cases General personal jurisdiction is available only where nonresident defendant's con- tacts with forum state are continuous and systematic. [7] Federal Courts 170B 76.5 170B Federal Courts 170BII Venue 170BII(A) In General 170Bk76 Actions Against Non- Residents; “Long-Arm” Jurisdiction in General 170Bk76.5 k. Contacts with Forum State. Most Cited Cases With regard to non-residents, general juris- diction is ordinarily reserved for those de- fendants who have such substantial con- tacts with forum state that they may be considered essentially domiciled within that state. [8] Federal Courts 170B 81 170B Federal Courts 170BII Venue 170BII(A) In General 170Bk77 Corporations, Actions by or Against 170Bk81 k. Sales, Solicitation and Advertising. Most Cited Cases Illinois corporation's operation of website generally offering its goods for sale did not subject corporation to general personal jur- isdiction in Maryland, absent evidence of actual sales to Maryland residents. [9] Federal Courts 170B 76.1 170B Federal Courts 170BII Venue 170BII(A) In General 170Bk76 Actions Against Non- Residents; “Long-Arm” Jurisdiction in General 170Bk76.1 k. In General. Most Cited Cases (Formerly 170Bk76) Having plaintiff domiciled in forum state is neither necessary nor sufficient condition for exercise of personal jurisdiction over nonresident defendant. [10] Federal Civil Procedure 170A 1269.1 170A Federal Civil Procedure 170AX Depositions and Discovery 170AX(A) In General 170Ak1269 Grounds and Objec- tions 170Ak1269.1 k. In General. Most Cited Cases Estate of Maryland resident asserting wrongful death claim against out-of-state corporation was not entitled to conduct jur- isdictional discovery regarding corpora- tion's possible sales to Maryland residents through its website, absent evidence calling into doubt corporation's affidavit stating that it had no sales to Maryland residents. [11] Federal Civil Procedure 170A 1269.1 170A Federal Civil Procedure 170AX Depositions and Discovery 170AX(A) In General 170Ak1269 Grounds and Objec- tions 170Ak1269.1 k. In General. Most Cited Cases Where evidence falls far short of pointing towards personal jurisdiction over nonres- ident defendant, court is within its discre- tion in denying jurisdictional discovery. [12] Federal Courts 170B 101 286 F.Supp.2d 514 Page 2 286 F.Supp.2d 514 (Cite as: 286 F.Supp.2d 514) © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. Case 6:07-cv-06191-TC Document 39 Filed 10/02/07 Page 16 of 26 Page ID#: 191 170B Federal Courts 170BII Venue 170BII(B) Change of Venue 170BII(B)1 In General; Venue Laid in Proper Forum 170Bk101 k. In General; Con- venience and Interest of Justice. Most Cited Cases Transfer of venue may be properly granted to avoid any procedural complications that might result from dismissal, not solely to avoid those procedural complications that have already arisen. 28 U.S.C.A. § 1406(a). [13] Federal Courts 170B 121 170B Federal Courts 170BII Venue 170BII(B) Change of Venue 170BII(B)2 Venue Laid in Wrong Forum 170Bk121 k. In General. Most Cited Cases District court does not abuse its discretion in denying transfer of venue where plaintiff's attorney has filed in improper forum on basis of obvious error. 28 U.S.C.A. § 1406(a). [14] Federal Courts 170B 122 170B Federal Courts 170BII Venue 170BII(B) Change of Venue 170BII(B)2 Venue Laid in Wrong Forum 170Bk122 k. Particular De- terminations. Most Cited Cases Transfer, rather than dismissal, was war- ranted after determination that court lacked personal jurisdiction over nonresident de- fendant in wrongful death action, absent in- dication that plaintiffs' selection of forum was result of obvious error, or that counter- vailing concerns weighed in favor of dis- missal. 28 U.S.C.A. § 1406(a). *515 Nathan I. Finkelstein, Bethesda, MD, Laurie B. Horvitz, Finkelstein and Horvitz, Bethesda, MD, for Edith Bank. James J. O'Neill, III, Harold M. Walter, Tydings and Rosenberg, LLP, Baltimore, MD, for Swiss Valley Farms Co. MEMORANDUM MOTZ, District Judge. This action has been brought by the Estate of Stephen Bank, et al. (“the Estate”) against Swiss Valley Farms, Co. (“Swiss Valley”). Decedent Stephen Bank was an employee of Swiss Valley, Co., an Illinois corporation involved in the manufacture and distribution of dairy products. The Es- tate alleges various tort claims against Swiss Valley in connection with the al- leged exposure of Mr. Bank to harmful chemicals during his employment. Swiss Valley has filed a motion to dismiss for lack of personal jurisdiction, or in the alternative for failure to state a claim upon which relief may be granted. For the reas- ons stated below, this court holds that it cannot exercise personal jurisdiction over defendant. Pursuant to 28 U.S.C. § 1406, this case is transferred to the Southern Dis- trict of Iowa. I. Defendant Swiss Valley employed Stephen Bank at two of its dairy laboratories in Iowa from 1981 to 1993. Following the culmination of his employment with Swiss Valley, Mr. Bank relocated to Maryland. Plaintiffs allege that during the term of his employment, Mr. Bank was repeatedly ex- posed to harmful chemicals, and contracted acute mylogeous leukemia as a result. Mr. Bank died on November 2, 2001, more than a year after being diagnosed with leukemia. After Mr. Bank's death, his family learned that he had been exposed to hazardous 286 F.Supp.2d 514 Page 3 286 F.Supp.2d 514 (Cite as: 286 F.Supp.2d 514) © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. Case 6:07-cv-06191-TC Document 39 Filed 10/02/07 Page 17 of 26 Page ID#: 192 chemicals during his tenure at Swiss Val- ley, and that other Swiss Valley employees who had worked in the same laboratories had also developed cancer. Plaintiffs have sued Swiss Valley alleging various tort claims arising out of the circumstances sur- rounding Mr. Bank's death. Swiss Valley is an Illinois corporation with its principal place of business in Iowa. It has no resident agent in Maryland, main- tains no employees in Maryland and is neither qualified nor registered to do *516 business in Maryland. (Affidavit of S. Woodworth, Exhibit A to Defendant's Mo- tion to Dismiss at ¶ 5, 18). Swiss Valley has never sold, and does not presently sell any products in the state of Maryland, nor has it otherwise transacted business in the state of Maryland. (Id. at ¶ 7, 10, 14). It has no place of business, offices, warehouses, branches, dealers or franchisees in Mary- land. (Id. at ¶ 8). The entirety of the cor- poration's employment relationship with Mr. Bank transpired in Iowa. Until early May 2003, Swiss Valley main- tained a website which permitted the online sale of goods to consumers throughout the United States. This site was discontinued on May 1, 2003 allegedly due to lack of sales. (Second Affidavit of S. Woodworth, Exhibit A to Defendant's Reply Memor- andum in Support of Motion to Dismiss at ¶ 3). Plaintiffs offer no statistics on the volume of business Swiss Valley trans- acted through the website, and no evidence of any sales to Maryland residents. Swiss Valley asserts that it has not made any sales to Maryland residents through the website or otherwise. (Id. at ¶ 1). In addi- tion to its website, Swiss Valley maintains a toll-free hotline through which orders may be placed, and distributes its products in twenty-five states. FN1 FN1. Swiss Valley's products are distributed and sold exclusively in Minnesota, Wisconsin, Illinois, Iowa, Missouri, Nebraska, Arizona, California, Colorado, Indiana, Mas- sachusetts, Michigan, New Mexico, New Jersey, New York, Oklahoma, Pennsylvania, Kansas, Washington, North Dakota, South Dakota, Ten- nessee, Texas, Utah and Virginia. (Affidavit of S. Woodworth at ¶ 4). II. [1][2][3] When a defendant files a motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of proving grounds for jurisdiction by a preponder- ance of the evidence. Mylan Laboratories, Inc. v. Akzo, N.V., 2 F.3d 56, 59-60 (4th Cir.1993). This burden requires the plaintiff to produce competent evidence to sustain jurisdiction, including, for example, sworn affidavits. Nichols v. G.D. Searle & Co., 783 F.Supp. 233, 235 (D.Md.1992). If the jurisdiction issue is decided without a hearing, the plaintiff is required only to make a prima facie showing of jurisdiction. Mylan, 2 F.3d at 60. [4] In determining the existence of jurisdic- tion, the court should draw all “reasonable inferences” from the proof offered by the parties in the plaintiff's favor. Id. at 62. This does not mean, however, that the courts must “look solely to the proof presented by the plaintiff in drawing such inferences.” Id. Rather, the court must con- sider “all relevant pleading allegations in the light most favorable to the plaintiff,” and draw reasonable inferences therefrom. Id. III. “A federal court sitting in diversity juris- diction may exercise personal jurisdiction over a non-resident defendant if (1) an ap- plicable state long-arm statute confers jur- 286 F.Supp.2d 514 Page 4 286 F.Supp.2d 514 (Cite as: 286 F.Supp.2d 514) © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. Case 6:07-cv-06191-TC Document 39 Filed 10/02/07 Page 18 of 26 Page ID#: 193 isdiction and (2) the assertion of that juris- diction is consistent with constitutional due process.” Nichols, 991 F.2d at 1199. Con- stitutional due process requires that a non- resident defendant have sufficient minim- um contacts “such that the maintenance of the suit does not offend traditional notions of fair play or substantial justice.” Interna- tional Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). The Estate relies on Section 6-103(b)(4) of Maryland's long arm statute to assert juris- diction over Swiss Valley. Md.Code Ann., Cts. & Jud. Proc. § 6-103(b)(4). *517 That section provides for jurisdiction over per- sons who cause tortious injury in the State or outside of the State by an act or omission outside the State if he regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from goods, food, ser- vices, or manufactured products used or consumed in the State. The Maryland Court of Appeals has con- sistently held that the long-arm statute is co-extensive with the requirements of due process, and thus the first and second in- quiries may be performed as one. Joseph M. Coleman & Associates, Ltd. v. Colonial Metals, 887 F.Supp. 116, 118 (D.Md.1995), Mohamed v. Michael, 279 Md. 653, 370 A.2d 551, 553 (1997). [5][6] Under due process analysis, there are two types of personal jurisdiction: specific and general. Specific jurisdiction is avail- able when the plaintiff's claim arises out of the defendant's contacts with the forum state. See Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 (1984). General jurisdiction is available only where the defendant's contacts with the forum state are “continuous and systematic.” Id. at 415, 104 S.Ct. at 1872. The level of con- tacts required for the exercise of general jurisdiction is “significantly higher” than that required for the exercise of specific jurisdiction. ESAB Group, Inc. v. Centri- cut, Inc., 126 F.3d 617, 623 (4th Cir.1997). The Estate's cause of action has not arisen from Swiss Valley's contacts with Mary- land, and thus specific jurisdiction is not available. Moreover, plaintiffs do not assert that specific jurisdiction exists. General jurisdiction may be asserted however, if it can be shown that Swiss Valley has “continuous and systematic” contacts with Maryland. Helicopteros, 466 U.S. at 415, 104 S.Ct. at 1872. Plaintiffs base their contention of general jurisdiction on Swiss Valley's operation of a website offering its products for sale.FN2 Plaintiffs offer no evidence of any sales to Maryland residents via this website, but only suggest in the face of specific denials by defendant that such sales may have oc- curred, and occurred with such frequency that they provide the “continuous and sys- tematic” contacts necessary for the exercise of general jurisdiction.FN3 FN2. Plaintiffs also contend that Swiss Valley's operation of a toll- free hotline number, acceptance of orders by facsimile, amenability of its sales representative to a purchase by a Maryland resident, and its pos- sible joint venture with a company having a substantial presence in Maryland all suggest that Swiss Valley has made sales to Maryland residents and has derived substan- tial revenues therefrom. As with the website, plaintiffs offer no evidence of any sales made through the hot- line or by facsimile to Maryland residents. In addition, defendant as- 286 F.Supp.2d 514 Page 5 286 F.Supp.2d 514 (Cite as: 286 F.Supp.2d 514) © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. Case 6:07-cv-06191-TC Document 39 Filed 10/02/07 Page 19 of 26 Page ID#: 194 serts by affidavit that the proposed joint venture was never formed, and, in any event, never anticipated doing business in Maryland. (Second Affidavit of S. Wood- worth, at ¶ 4). In light of this lack of evidence, plaintiffs' claims must, of necessity, rest on Swiss Valley's operation of a website. FN3. In response to defendant's af- fidavit declaring that Swiss Valley has made no sales to Maryland res- idents, plaintiffs argue, for example, that “it is certainly possible that sales to Maryland residents could be sufficient to obtain general juris- diction,” and that “the contacts between Swiss Valley and Mary- land could be more substantial ” than those present in a case with similar facts where general jurisdic- tion was found lacking (emphasis added)(Plaintiffs' Opposition to De- fendant's Motion to Dismiss, 7). [7] In the context of personal jurisdiction, the Fourth Circuit has cautioned that “broad constructions of general jurisdiction should be generally disfavored.” Nichols, 991 F.2d at 1200. In fact, with regard to non-residents, general jurisdiction*518 is ordinarily reserved for those defendants who have such substantial contacts with the forum state that they may be considered “essentially domiciled” within that state. Atlantech Distribution, Inc. v. Credit Gen. Ins. Co., 30 F.Supp.2d 534 (D.Md.1998). [8] In light of this heightened standard, the Fourth Circuit has held that “limited ad- vertising and solicitation” by a non- resident defendant in the forum state do not provide a sufficient basis for general juris- diction. Ratliff v. Cooper Labs., Inc., 444 F.2d 745, 748 (4th Cir.1971). Without evidence of actual sales made to Maryland residents, it would seem that the operation of a website that merely offers the possibil- ity of transacting cannot be characterized as anything more than “advertising and so- licitation,” and thus is equally insufficient for jurisdictional purposes. The Fourth Circuit has deemed general jur- isdiction absent in circumstances where the defendant possessed far more substantial contacts with the forum state than exist between Swiss Valley and Maryland. In Ratliff, the defendant maintained five em- ployees who resided in the forum state, promoted the company's products and oc- casionally took orders, and those contacts were deemed insufficient for general juris- diction. Id. at 746. In Nichols, the court re- lied on Ratliff in finding general jurisdic- tion lacking where a pharmaceutical com- pany maintained 17 to 21 employees in Maryland to perform advertising and soli- citation functions, held meetings in Mary- land three times a year, and accumulated annual revenue of between $9 and $13 mil- lion from its business in Maryland during a four year period. 991 F.2d at 1198, 1200. Finally, in ESAB Group, the court found no general jurisdiction even though the de- fendant had 26 customers who were resid- ents of the forum state (representing 1% of all of its customers and .079% of gross an- nual sales) and defendant had purchased between $10,000 and $20,000 worth of parts from a supplier in the forum state. 126 F.3d at 621. The increasing use of the Internet as a me- dium for business has introduced new questions into the law of personal jurisdic- tion. Consistent with its caution against broad constructions of general jurisdiction, the Fourth Circuit has noted that while technological advances may alter the land- scape of personal jurisdiction, “it nonethe- less has remained clear that technology cannot eviscerate the constitutional limits 286 F.Supp.2d 514 Page 6 286 F.Supp.2d 514 (Cite as: 286 F.Supp.2d 514) © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. Case 6:07-cv-06191-TC Document 39 Filed 10/02/07 Page 20 of 26 Page ID#: 195 on a state's power to exercise jurisdiction over a defendant.” ALS Scan, Inc. v. Digit- al Serv. Consultants, Inc., 293 F.3d 707, 711 (4th Cir.2002). The Fourth Circuit has explicitly rejected the notion that general personal jurisdiction may be founded on the basis of Internet presence alone. We are not prepared at this time to recog- nize that a State may obtain general juris- diction over out of state persons who regu- larly and systematically transmit electronic signals into the State via the Internet based solely on those transmissions. Something more would have to be demonstrated. And we need not decide today what that “something more” is because ALS Scan has shown no more. Id. at 715. See also Coastal Video Commu- nications, Corp. v. Staywell Corp., 59 F.Supp.2d 562, 571-72 (E.D.Va.1999)(noting that the mere exist- ence of an interactive website is insuffi- cient for the exercise of general jurisdiction in the absence of proof of continuous and systematic contact between the forum state and the website). Indeed, premising general personal juris- diction on mere Internet presence would risk the evisceration of constitutional limits which the Fourth Circuit declared imper- missible in ALS Scan. 293 F.3d at 711. If *519 presence alone were deemed suffi- cient, a non-resident defendant “would pre- sumably be subject to general personal jur- isdiction in every jurisdiction in the coun- try, thereby allowing a plaintiff to sue it for any matter anywhere in the nation. This the Constitution does not permit.” Atlantech, 30 F.Supp.2d at 537. The Fourth Circuit did not articulate the “something more” required in addition to Internet presence for the exercise of gener- al jurisdiction because the plaintiffs in ALS Scan failed to show anything more. 293 F.3d at 715. Similarly, plaintiffs in this case have failed to show anything more than Swiss Valley's Internet presence. Plaintiffs insist that Swiss Valley may have made sales to Maryland residents that would provide the requisite contacts, but several recent cases suggest that even evid- ence of actual sales to residents of the for- um state may not satisfy the “something more” requirement. See Robbins v. Yutopi- an Enterprises, Inc., 202 F.Supp.2d 426, 429 (D.Md.2002) (forty-six transactions with Maryland residents over a 10 1/2 month period, made through a website and a toll-free number, deemed insufficient for the exercise of general personal jurisdic- tion). Cf. Gator.Com Corp. v. L.L. Bean, Inc., 341 F.3d 1072, 1077-78 (9th Cir.2003) (holding that L.L. Bean's online business (sales of over $200 million in 2000, accounting for 16 percent of total sales) and its “consistent, ongoing and sig- nificant sales effort that has included Cali- fornia for a number of years,” were suffi- cient for the exercise of general personal jurisdiction, but acknowledging that even given the defendant's high volume of on- line business, the case presented a “close question.”). Plaintiffs argue that the nature of Swiss Valley's website makes this court's exercise of jurisdiction permissible according to the “sliding scale” set forth in Zippo Manufac- turing Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (W.D.Pa.1997), and adopted by the Fourth Circuit in ALS Scan, 293 F.3d at 713. Under the Zippo model, the constitutionality of exercising jurisdiction may be assessed according to the “nature and quality of commercial activity” con- ducted by a defendant over the Internet. Zippo, 952 F.Supp. at 1124. The model la- bels those websites that merely post in- formation as “passive,” and concludes that 286 F.Supp.2d 514 Page 7 286 F.Supp.2d 514 (Cite as: 286 F.Supp.2d 514) © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. Case 6:07-cv-06191-TC Document 39 Filed 10/02/07 Page 21 of 26 Page ID#: 196 personal jurisdiction is not available over such sites. At the opposite end of the spec- trum are websites where a defendant “clearly does business over the Internet,” and personal jurisdiction is deemed proper with regard to those sites. While Swiss Valley's website might be characterized as “doing business” since it permitted visitors to order goods online, this characterization is of minimal relevance. First of all, de- fendant's website may have offered the possibility of “doing business,” but plaintiffs present no evidence that any business has actually been transacted through the website. Secondly, the Zippo model was intended to apply to questions of specific jurisdiction, and specific juris- diction is not at issue here. See Atlantech, 30 F.Supp.2d at 537. Lastly, although the Zippo test has been acknowledged to be of some use in analyzing general personal jur- isdiction, the mere classification of the Swiss Valley website as capable of “doing business” over the Internet provides an in- sufficient basis for the exercise of general jurisdiction by this court without more. Id. (compiling cases). To conclude otherwise would permit the exercise of general juris- diction on the basis of mere Internet pres- ence, a result the Fourth Circuit has rejec- ted. ALS Scan, 293 F.3d at 715. Plaintiffs point to one case where general jurisdiction was found to be proper in part based on sales made to forum state resid- ents through a website. See Mieczkowski v. Masco Corp., 997 F.Supp. 782 (E.D.Tex.1998). This case, however; is readily distinguishable because the court *520 in Mieczkowski did not rely solely on website activity to justify jurisdiction, as plaintiffs would have this court do in the instant case. By contrast, the defendant company had sold and shipped nearly 6 million dollars worth of products to resid- ents of the forum state over the preceding six years, and in the previous year alone, had concluded over 250 transactions with forum state residents, totaling over $700,000.00 in sales. Id. at 785. In addi- tion, defendant's sales over the previous four years accounted for 3.2% of its gross sales income, a direct mailing was sent to residents twice a year which resulted in ac- tual sales, and defendant purchased 0.2% of its furniture from a company in the for- um state. Id. Finally, defendant operated a website that was accessible to 2.2 residents of the forum state. Id. In rendering its de- cision to exercise general jurisdiction, the court cautioned that it was not deciding “whether standing alone” the defendant's website was a sufficient basis for general jurisdiction, but rather that it was relying on the “combination” of traditional busi- ness contacts and the website. Id. at 788. Thus, Mieczkowski cannot guide the result here, where jurisdiction would have to be based on defendant's website “standing alone.” [9] The Supreme Court has acknowledged that “a plaintiff's residence may, because of the defendant's relationship with the plaintiff, enhance defendant's contacts with the forum.” Keeton v. Hustler Magazine, Inc. 465 U.S. 770, 780, 104 S.Ct. 1473, 1481, 79 L.Ed.2d 790 (1984). However, having a plaintiff domiciled in the forum state is neither a necessary nor a sufficient condition for the exercise of personal juris- diction. The Fourth Circuit has found gen- eral personal jurisdiction lacking where resident plaintiffs were involved and the defendant possessed more substantial con- tacts with the forum state than in the in- stant case. ESAB Group, 126 F.3d at 624. The court in ESAB Group noted that the defendant's contacts with South Carolina fell short of constitutional requirements despite the fact that “South Carolina courts in this case would be seeking to vindicate the interests of their own citizens.” Id. The same result must follow here. While Mary- 286 F.Supp.2d 514 Page 8 286 F.Supp.2d 514 (Cite as: 286 F.Supp.2d 514) © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. Case 6:07-cv-06191-TC Document 39 Filed 10/02/07 Page 22 of 26 Page ID#: 197 land may have some interest in the resolu- tion of this case since it was the state of residence of Mr. Banks, and continues to be the state of residence for Mr. Banks' de- pendents, that interest cannot overcome the otherwise insufficient showing of contacts made by plaintiffs. IV. [10] Plaintiffs request in their opposition that they be permitted to conduct limited discovery to establish sales to Maryland residents via Swiss Valley's website. This request will be denied. The Federal Rules of Civil Procedure provide for broad discovery, however, they also vest substantial discretion in the dis- trict courts to resolve any discovery mat- ters that arise. See Mylan, 2 F.3d at 64. For example, “[w]hen a plaintiff offers only speculation or conclusory assertions about contacts with a forum state, a court is with- in its discretion in denying jurisdictional discovery.” Carefirst of Maryland, Inc. v. Carefirst Pregnancy Centers, Inc., 334 F.3d 390, 402 (4th Cir.2003). See also Rich v. KIS Cal., Inc., 121 F.R.D. 254, 259 (M.D.N.C.1988)(“Where a plaintiff's claim of personal jurisdiction appears to be both attenuated and based on bare allegations in the face of specific denials made by de- fendants, the court need not permit even limited discovery confined to issues of per- sonal jurisdiction should it conclude that such discovery will be a fishing expedi- tion.”). The Fourth Circuit has denied dis- covery in circumstances analogous to the instant case where the plaintiffs offered no more than bare allegations of sufficient contacts against affidavits by the defend- ants denying the existence of contacts.*521 McLaughlin v. McPhail, 707 F.2d 800, 806 (4th Cir.1983). [11] Plaintiffs insist that discovery is ne- cessary in order provide the court with de- tails of sales Swiss Valley may have made to Maryland residents. Plaintiffs cite Coastal Video as support for its contention that discovery should be permitted. 59 F.Supp.2d 562. In Coastal Video the court granted plaintiffs' motion for discovery to investigate “significant gaps” in the record regarding the nature and extent of defend- ant's traditional business contacts and its Internet-based contacts with the forum state. Id. at 572. The defendant in that case maintained a registered agent in Virginia, was qualified to do business in Virginia, sold and distributed products in Virginia, sent catalogs and mailings containing order forms to Virginia residents, and operated a website through which online purchases could be made. Id. at 564. The evidence in Coastal Video, a combination of traditional and Internet-based contacts, “pointed to- ward a finding of personal jurisdiction,” and thus, discovery was proper. Weinstein v. Todd Marine Enter., Inc. et al., 115 F.Supp.2d 668, 676 (E.D.Va.2000). Where, as here, the evidence “falls far short” of pointing towards personal jurisdiction, this court is within its discretion in denying dis- covery. Id. at 676-77. Granting plaintiffs' motion for discovery would authorize a “fishing expedition” for evidence of Inter- net sales to Maryland residents, the exist- ence of which defendant affirmatively denies. Id. at 677. Plaintiffs also suggest that this court should conclude that the affidavit of Swiss Val- ley's vice president of marketing is inaccur- ate because it fails to specifically mention the existence of the company's now inact- ive website. Defendant has asserted, in the form of affidavits, that no sales were made to Maryland residents through its now in- active website. Plaintiffs offer no evidence to the contrary. Accordingly, the fact that defendant's motion to dismiss failed to make specific mention of an inactive web- 286 F.Supp.2d 514 Page 9 286 F.Supp.2d 514 (Cite as: 286 F.Supp.2d 514) © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. Case 6:07-cv-06191-TC Document 39 Filed 10/02/07 Page 23 of 26 Page ID#: 198 site through which no contacts, sales or otherwise, were made with Maryland resid- ents, does not compel this court to infer that the defendant's omissions were made in bad faith. Finally, plaintiffs urge this court to infer from the timing of the discontinuance of the website by Swiss Valley (nearly two weeks prior to the filing of defendant's mo- tion to dismiss) that sales were made to Maryland residents through the website. That is not a reasonable inference for this court to draw. If Swiss Valley were, in fact, conducting substantial business with Mary- land residents via its website such that its contacts might rise to the level of “systematic and continuous,” it is hard for this court to believe that defendant would discard an otherwise thriving online busi- ness merely to avoid suit in Maryland. This court finds no evidence of fraud on the part of Swiss Valley or any indication of an intention to mislead. Carefirst, 334 F.3d at 403. Accordingly, plaintiffs' request for discovery on this matter will be denied. V. Since this court has concluded that it can- not exercise personal jurisdiction over the defendant, it must be determined whether this case should be dismissed or transferred to another district. Pursuant to 28 U.S.C. § 1406(a), this court has the discretion to transfer the case to another federal district court in which the case could have been brought, if such transfer is in the interests of justice. Plaintiffs request that this court grant a transfer, and defendant urges this court to dismiss. Defendant argues that transfer is inappro- priate because plaintiffs have failed to demonstrate how their claim might be time-barred if transfer were not granted. *522 However, defendant misunderstands the intended role of section 1406(a), and the manner in which it has been interpreted by the courts. The Supreme Court has iden- tified “a congressional purpose underlying section 1406(a) favoring the transfer of cases when procedural obstacles ‘impede an expeditious and orderly adjudication on the merits.’ ” Sinclair v. Kleindienst, 711 F.2d 291, 293-94 (D.C.Cir.1983)(quoting Goldlawr v. Heiman, 369 U.S. 463, 466-67, 82 S.Ct. 913, 915-16, 8 L.Ed.2d 39 (1962)). Transfer had been deemed proper under section 1406“when there is an obstacle-either incorrect venue, absence of personal jurisdiction, or both-to a prompt adjudication on the merits in the forum where originally brought.” Dubin v. United States, 380 F.2d 813, 816 (5th Cir.1967). [12] In accordance with these precedents, the Fourth Circuit has adopted a reading of section 1406(a) authorizing transfer “for any reason which constitutes an impedi- ment to a decision on the merits in the transferor district but would not be an im- pediment in the transferee district.” Porter v. Groat, 840 F.2d 255 (4th Cir.1988). As mentioned above, lack of personal jurisdic- tion is one of the “impediments” upon which transfer may be premised. See Du- bin, 380 F.2d at 816; Sinclair, 711 F.2d at 294. Thus, while transfer may be “particularly appropriate” where the plaintiff's cause of action would be time- barred in the event this court declined to transfer, this does not mean that transfer is unavailable where the statute of limitations has not yet run. See Sinclair, 711 F.2d at 294. By contrast, transfer may be properly granted to avoid any procedural complica- tions which might result from dismissal, not solely to avoid those procedural com- plications which have already arisen. See Robbins, 202 F.Supp.2d at 431. [13] A district court does not abuse its dis- cretion in denying transfer where the 286 F.Supp.2d 514 Page 10 286 F.Supp.2d 514 (Cite as: 286 F.Supp.2d 514) © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. Case 6:07-cv-06191-TC Document 39 Filed 10/02/07 Page 24 of 26 Page ID#: 199 plaintiff's attorney has filed in an improper forum on the basis of “obvious error.” Nichols, 991 F.2d at 1201-02. That is to say, transfer could be properly denied where “the plaintiff's attorney could reas- onably have foreseen that the forum in which he/she filed was improper.” Id. at 1202. However, it is not clear to this court that the plaintiffs' selection of this forum was the result of “obvious error.” Moreover, even assuming plaintiffs did make an “obvious error” in selecting Mary- land as their forum, the district court is not thereby bound to deny a request for trans- fer. Rather, the Fourth Circuit held only that it would not disturb a district court's exercise of discretion in denying transfer where plaintiffs' made an “obvious error” in filing in the transferor court, and noted that this did not imply that a district court would “necessarily err” in granting transfer under such circumstances. Id. at 1202 n. 6. [14] Jurisdiction appears to be proper in the United States District Court for the South- ern District of Iowa where the defendant's principal place of business is located, and where the alleged injuries took place. In light of the purposes underlying § 1406, and because defendant has not shown any countervailing concerns that weigh in favor of dismissal, transfer will be granted. VI. Because this court has found that personal jurisdiction is lacking, defendant's 12(b)(6) motion regarding the exclusivity of the Iowa's workers' compensation as an avenue for pursuing plaintiffs' claims will not be considered. For these reasons, this action will be trans- ferred to the United States District Court for the Southern District of Iowa. A *523 separate order to that effect is being entered herewith. D.Md.,2003. Estate of Bank v. Swiss Valley Farms Co. 286 F.Supp.2d 514 END OF DOCUMENT 286 F.Supp.2d 514 Page 11 286 F.Supp.2d 514 (Cite as: 286 F.Supp.2d 514) © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. Case 6:07-cv-06191-TC Document 39 Filed 10/02/07 Page 25 of 26 Page ID#: 200 CERTIFICATE OF SERVICE ATTORNEY CERTIFICATE OF SERVICE I hereby certify that on October 2, 2007, I have made service of the foregoing REPLY MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND IMPROPER VENUE on the party/ies listed below in the manner indicated: Carl D. Crowell Michelle L. H. Ing David W. Sherman Crowell Ing, LLP P.O. Box 923 Salem, OR 97308-0923 U.S. Mail Facsimile Hand Delivery Overnight Courier Email Electronically via USDC CM/ECF system DATED this 2nd day of October, 2007. /s/ Shawn M. Lindsay Shawn M. Lindsay, OSB #02069 Attorney for Defendant Case 6:07-cv-06191-TC Document 39 Filed 10/02/07 Page 26 of 26 Page ID#: 201