The Limu Company, Llc v. Quality Craft Spirits Ltd.

MOTION to Dismiss for Lack of Jurisdiction

E.D. Pa.April 24, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA THE LIMU COMPANY, LLC, Plaintiff, v. QUALITY CRAFT SPIRITS LTD., Defendant. Civil Action No. 2:17-cv-00930-JP DEFENDANT QUALITY CRAFT SPIRITS LTD.’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION OR PROPER VENUE Defendant Quality Craft Spirits, Ltd. hereby respectfully moves this Court to dismiss the Complaint of Plaintiff The Limu Company, LLC pursuant to Rules 12(b)(2) and 12(b)(3) of the Federal Rules of Civil Procedure, for lack of personal jurisdiction and improper venue. As shown in the accompanying Memorandum of Law in support of this motion, Defendant Quality Craft Spirits Ltd. is a Canadian company that has no presence in Pennsylvania sufficient for Plaintiff to establish the existence of either general or specific jurisdiction over Defendant in this state. Quality Craft Spirits Ltd. relies upon the accompanying Memorandum of Law, as well as the supporting declarations and exhibits filed currently therewith, in support of its motion to dismiss, and incorporates them by reference as if fully set forth herein. Defendant Quality Craft Spirits Ltd. respectfully requests that the Court grant its motion and dismiss the Complaint. Case 2:17-cv-00930-JP Document 8 Filed 04/24/17 Page 1 of 3 2 Respectfully submitted, By: /s/ Aleksander J. Goranin Aleksander J. Goranin (Pa. Bar # 92452) DUANE MORRIS LLP 30 South 17th Street Philadelphia, PA 19103-4196 Tel: 215-979-1868 Fax: 215-754-4683 Email: agoranin@duanemorris.com Jeffrey Squires PEACOCK MYERS, P.C. (pro hac vice pending) 201 Third St. NW, Suite 1340 Albuquerque, NM 87102 Tel: 505-998-6116 Fax: 505-243-2542 Email: jsquires@peacocklaw.com Attorneys for Defendant Quality Craft Spirits Ltd. Case 2:17-cv-00930-JP Document 8 Filed 04/24/17 Page 2 of 3 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on April 24, 2017, I filed the foregoing Defendant Quality Craft Spirits Ltd.’s Motion to Dismiss for Lack of Personal Jurisdiction or Proper Venue electronically through the CM/ECF system, which caused the following parties or counsel to be served by electronic means: Nancy A. Rubner Frandsen Lesley M. Grossberg BAKER & HOSTETLER LLP Cira Centre, 12th Floor 2929 Arch Street Philadelphia, PA 19104-2891 Tel: 215-568-3100 Fax: 215-568-3439 Email: nfrandsen@bakerlaw.com Email: lgrossberg@bakerlaw.com /s/ Aleksander J. Goranin Aleksander J. Goranin Attorney for Defendant Quality Craft Spirits Ltd. Case 2:17-cv-00930-JP Document 8 Filed 04/24/17 Page 3 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA THE LIMU COMPANY, LLC, Plaintiff, v. QUALITY CRAFT SPIRITS LTD., Defendant. Civil Action No. 2:17-cv-00930-JP MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT QUALITY CRAFT SPIRITS LTD.’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION OR PROPER VENUE Aleksander J. Goranin (Pa. Bar # 92452) DUANE MORRIS LLP 30 South 17th Street Philadelphia, PA 19103-4196 Tel: 215-979-1868 Fax: 215-754-4683 Email: agoranin@duanemorris.com Jeffrey Squires PEACOCK MYERS, P.C. (pro hac vice pending) 201 Third St. NW, Suite 1340 Albuquerque, NM 87102 Tel: 505-998-6116 Fax: 505-243-2542 Email: jsquires@peacocklaw.com Attorneys for Defendant Quality Craft Spirits Ltd. Dated: April 24, 2017 Case 2:17-cv-00930-JP Document 8-1 Filed 04/24/17 Page 1 of 22 i TABLE OF CONTENTS Page I. INTRODUCTION ...............................................................................................................1 II. FACTUAL BACKGROUND ..............................................................................................2 A. Limu’s Complaint ....................................................................................................2 B. Additional Background Facts ..................................................................................3 III. ARGUMENT .......................................................................................................................6 A. Limu has not alleged a fact basis for finding general jurisdiction over QC Spirits. ......................................................................................................................9 B. Limu has not alleged a fact basis for finding specific jurisdiction over QC Spirits. ......................................................................................................................9 C. Limu does not allege a basis for finding venue is proper in this judicial district. ...................................................................................................................14 IV. CONCLUSION ..................................................................................................................15 Case 2:17-cv-00930-JP Document 8-1 Filed 04/24/17 Page 2 of 22 ii TABLE OF AUTHORITIES Cases Ackourey v. Sonellas Custom Tailors, 573 Fed. Appx. 208 (3d Cir. 2014) ..........................................................................................13 Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2008) .........................................................................................7 Budget Blinds, Inc. v. White, 536 F. 3d 244 (3d Cir. 2008)....................................................................................................10 Calder v. Jones, 465 U.S. 783, 104 S. Ct. 1482 (1984) ......................................................................................10 Cecere v. Ohringer Home Furniture Co., 220 A.2d 350 (Pa. Super. Ct. 1996) .........................................................................................11 Cumberland Truck Equipment Co. v. Detroit Diesel Corp., 401 F.Supp.2d 415 (E.D.Pa. 2005) .................................................................................... 14-15 D’Jamoos v. Pilatus Aircraft Ltd., 566 F.3d 94 (3d Cir. 2009).......................................................................................................13 Daimler AG v. Bauman, 134 S. Ct. 746 (2014) .................................................................................................................9 Farina v. Nokia, 578 F. Supp. 2d 740,749 (E.D.Pa. 2008) .........................................................................6, 8, 11 Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S.Ct. 2846 (2011) ...............................................................................................................9 Hanson v. Denckla, 3357 U.S. 235 (1958) .................................................................................................................8 Helicopteros Nacionales De Colombia v. Hall, 466 U.S. 408, 104 S.Ct. 1868 (1984) .........................................................................................8 Hollander v. Etymotic Research, Inc., 726 F.Supp. 2d 543 (E.D.Pa. 2010) ...........................................................................................7 International Shoe Co. v. Washington, 326 U.S. 310 (1945) ...................................................................................................................8 Joint Stock Society v. UDV N. America, Inc., 266 F.3d 164 (3d Cir. 2001).....................................................................................................12 Case 2:17-cv-00930-JP Document 8-1 Filed 04/24/17 Page 3 of 22 iii Keston v. FirstCollect, Inc., 523 F.Supp 2d 1348 (S.D. Fla. 2007) ......................................................................................12 Lebkeucher v. Loquasto, 389 A.2d 143 (Pa Super. Ct. 1978) ..........................................................................................12 Leroy v. Great Western United Corp., 443 U.S. 173, 99 S. Ct. 2710 (1979) .................................................................................. 14-15 Marten v. Godwin, 499 F.3d 290 (3d Cir. 2007).................................................................................................8, 10 Mellon Bank (East) v. DiVeronica Bros., Inc., 983 F.2d 551 (3d Cir. 1993).....................................................................................................14 Metallic Ceramic Coatings, Inc. v. Precision Products, Inc., 2001 U.S. Dist. LEXIS 1224, No. 00-cv-4941 (E.D. Pa. Feb 13, 2001) ...................................8 O’Connor v. Sandy Lane Hotel Co., 496 F. 3d 312 (3d. Cir. 2007).....................................................................................................8 Pinker v. Rochel Holdings, Ltd., 292 F.3d 361 (3d Cir. 2002).......................................................................................................7 Rachelson v. E.I. Du Pont De Nemours & Co., 257 F. Supp. 257 (E.D.Pa. 1966) .............................................................................................11 Sköld v. Galderma Labs, L.P., 99 F. Supp. 3d 585 (E.D.Pa. 2015) ............................................................................................9 Toys R Us, Inc. v Step Two, S.A., 318 F.3d 446 (3d Cir. 2003).....................................................................................................13 Vetrotex Certainteed Corp. v. Consolidated FiberGlass Products Company, 75 F.3d 147 (3d. Cir. 1996)..................................................................................................7, 14 Watson v. Abington Township, 478 F.3d 144 (3d Cir. 2007).......................................................................................................6 World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) ...................................................................................................................8 Statutes 15 Pa. Cons. Stat. Ann. § 403(a) ......................................................................................................6 42 Pa. Cons. Stat. Ann. § 5322(b)....................................................................................................7 47 Pa. Cons. Stat. Ann. § 4-493 (11) ...............................................................................................5 Case 2:17-cv-00930-JP Document 8-1 Filed 04/24/17 Page 4 of 22 iv 15 U.S.C. § 1051(b) .........................................................................................................................4 15 U.S.C. § 1051(d) .........................................................................................................................2 28 U.S.C. § 1391(b) .......................................................................................................................14 Other Authorities Fed. R. Civ. P. 9(b) ..........................................................................................................................7 Fed. R. Civ. P. 12(b)(2)....................................................................................................................1 Fed. R. Civ. P. 12(b)(3)..............................................................................................................1, 15 Case 2:17-cv-00930-JP Document 8-1 Filed 04/24/17 Page 5 of 22 I. INTRODUCTION Plaintiff The Limu Company, LLC (“Limu”) has sued Defendant Quality Craft Spirits Ltd. (“QC Spirits”) for infringement of Limu’s trademark BLU FROG, which Limu uses for health supplements and energy drinks. QC Spirits intends to sell vodka named BLU FROG. As shown below, Limu has failed to allege facts showing that QC Spirits has the minimum contacts with Pennsylvania that are constitutionally required for this Court to exercise jurisdiction over QC Spirits; or that support venue being proper in this judicial district. Accordingly, QC Spirits respectfully moves this Court to dismiss Limu’s Complaint for lack of personal jurisdiction under Fed. R. Civ. P. 12(b)(2) and for improper venue under Rule 12(b)(3). Limu is a “health and wellness company” organized and based in Florida that claims to sell “nutritional supplements and energy drinks” under the trademark BLU FROG (Complaint, ¶¶ 6 and 7). QC Spirits is a recently-formed Canadian company with no presence in Pennsylvania that is preparing to sell, but has not yet sold, vodka under the trademark BLU FROG in the United States, including in Pennsylvania (see Declaration of Joanne Devost submitted herewith, ¶¶ 3 and 11). The marketing of BLU FROG vodka in the United States is being handled by QC Spirits’ agent Liberty Premium Brands LLC (“LPB”), a Delaware company with no presence in Pennsylvania. LPB has arranged to have the import and sale of BLU FROG vodka in the United States handled by American Spirits Exchange Ltd. (“ASE”), a company organized in and with offices in Pennsylvania, an independent distributor. (Id., ¶ 7). Limu is suing QC Spirits for trademark infringement and unfair competition under federal, state and common law (Complaint, Counts I through V, ¶¶ 26-60); and for unjust enrichment (Id., Case 2:17-cv-00930-JP Document 8-1 Filed 04/24/17 Page 6 of 22 2 Count VI, ¶¶ 61-63). In accordance with settled legal principles, this Court lacks jurisdiction over QC Spirits, and this is not a proper venue for Limu’s claims to be heard.1 II. FACTUAL BACKGROUND A. Limu’s Complaint In its Complaint Limu alleges that it is a Florida-based company (Id., ¶ 1) and that it uses its BLU FROG trademark in connection with the sale of nutritional supplements and energy drinks (Id., ¶ 7). It alleges its ownership of a registration with the USPTO of its BLU FROG mark in International Class 32 for Energy drinks and in International Class 5 for Dietary and nutritional supplements and Dietary supplement drinks (Id., ¶ 11), as shown in Exhibit A to its Complaint. It alleges that QC Spirits has adopted the BLU FROG mark in connection with the sale of vodka, which it promotes at a website (Id., ¶¶ 14-15); and that the parties’ respective BLU FROG marks are identical (Id., ¶ 16). It alleges “upon information and belief” – but as shown below, incorrectly – that QC Spirits is the current owner of U.S. Trademark Application Ser. No. 87/101,392 for BLU FROG for vodka (Id., ¶ 19).2 1 QC Spirits is not now addressing the merits of Limu’s various claims for relief. Should it be called on to do so, in this or any court, QC Spirits will show the differences in their respective products and the channels of trade in which they are sold, and rely on the United States Patent and Trademark Office’s (“USPTO”) recognition of the entitlement of its sister company, QCIL International, Inc. (“QCIL”), to register BLU FROG for vodka, as evidenced by the Notice of Allowance issued by the USPTO pursuant to QCIL’s application, and the registration QCIL and QC Spirits expect will follow. 2 In fact QCIL International, Inc. (“QCIL”) is the owner of the application to register BLU FROG for vodka with the USPTO. See the copy of a printout from the USPTO data base showing the current status of the QCIL application, attached hereto as Exhibit 1, and Devost Decl., ¶ 5 (Ex. 4). Limu neglects to allege that after QCIL’s application for the BLU FROG mark was published for opposition – which Limu did not oppose – the USPTO issued a Notice of Allowance for registration of QCIL’s BLU FROG mark, a copy of which is attached hereto as Exhibit 2. Registration of the BLU FROG trademark for vodka awaits only submission of a Statement of Use, once there is a qualifying sale of BLU FROG vodka in the United States. See 15 U.S.C. § 1051(d). Case 2:17-cv-00930-JP Document 8-1 Filed 04/24/17 Page 7 of 22 3 Limu’s Complaint contains sparse allegations about QC Spirits. Other than identifying it as a Canadian company (Id., ¶ 2), the only allegations in Limu’s Complaint directed to support the Court’s jurisdiction over QC Spirits are in paragraphs 4 and 21. Limu alleges – in each instance “[u]pon information and belief” – that QC Spirits “has done business and has carried on a continuous and systematic part of its general business within the Commonwealth of Pennsylvania” (Id., ¶ 4), and “has worked with a distributor in Pennsylvania to secure approval to sell vodka under the BLU FROG designation in Pennsylvania’s state-run liquor stores” and that its BLU FROG vodka “was accepted as a new item” by the Pennsylvania Liquor Control Board. (Id., ¶ 21). 3 Most importantly, and in any event, Limu does not allege any specific well- pleaded facts indicating that QC Spirits has any presence in, or has ever appeared in, Pennsylvania in connection with the claims in Limu’s Complaint; or that QC Spirits has done anything in Pennsylvania more than appoint an independent distributor to arrange for the import of BLU FROG vodka, including obtaining brand approval from the appropriate state agency. There is nothing pled in Limu’s Complaint that justifies the Court’s exercise of jurisdiction over QC Spirits, or that makes this a proper venue for the litigation of Limu’s claims. B. Additional Background Facts4 Limu is a multi-level marketing company organized with its principal offices in Florida, which markets and sells what it describes as “healthy energy” drinks under the trademark BLU FROG, via the internet, targeting prospective re-sellers of its products. See Complaint, ¶¶ 6-8, 3 As discussed below, QC Spirits’ appointment of ASE as its importer was arranged by LPB. Limu’s allegation that QC Spirits “worked with a distributor in Pennsylvania” is somewhat ambiguous. In fact, QC Spirits did not actually work with ASE, in Pennsylvania or elsewhere. It did, through the efforts of LPB, appoint ASE as the importer/distributor for BLU FROG vodka. 4 In support of its motion, QC Spirits is submitting the Declarations of Joanne Devost, the Vice President and one of two Directors of QC Spirits, and of Daniel Lavigne, a member of LPB as Exs. 3 and 4. Case 2:17-cv-00930-JP Document 8-1 Filed 04/24/17 Page 8 of 22 4 and Limu’s website at www.thelimucompany.com and www.thelimucompany.com/products. It registered its BLU FROG trademark for health supplements and energy drinks with the USPTO effective July 21, 2009 (Complaint, ¶ 11 and Exhibit A thereto). Limu claims its BLU FROG energy drink is the largest selling seaweed based energy drink in the world (Id., ¶ 9). QC Spirits was organized in British Columbia, Canada in 2016, for the purpose of producing and selling alcoholic beverages (Devost Decl., ¶¶ 3 and 4). Shortly after its formation, effective August 15, 2016, QC Spirits acquired the assets of Romrock, Inc., a Canadian company organized in Quebec, Canada that was preparing to produce and sell vodka under the name/trademark BLU FROG, which Romrock had chosen and conveyed to QC Spirits as part of the asset sale (Devost Decl., ¶ 4). Both before and since the closing of its acquisition of Romrock’s assets, QC Spirits has been preparing to sell BLU FROG vodka to customers in the United States and elsewhere. Shortly prior to QC Spirits’ acquisition of Romrock’s assets, on July 12, 2016 QC Spirits’ sister company QCIL International, Inc. (“QCIL”), a company organized in the State of Washington which like QC Spirits is a subsidiary of their Canadian parent company Quality Craft Ltd. (“QC Ltd.”), applied to the USPTO, on an intent to use basis under Section 1(b) of the Lanham Act, 15 U.S.C. § 1051(b), to register the trademark BLU FROG for vodka in International Class 33 (Devost Decl., ¶ 5 and Exhibit B thereto). That application was approved for publication by the USPTO on November 23, 2016 (Id., Exhibit C); and after having been published without opposition, on February 7, 2017 the USPTO issued a Notice of Allowance for registration of the mark. See Exhibit 2 submitted herewith. As mentioned in footnote 2 above, once a qualifying sale of BLU FROG vodka is made in the United States, either QCIL or its licensee or transferee, envisioned to be QC Spirits, will be entitled to register the mark. Case 2:17-cv-00930-JP Document 8-1 Filed 04/24/17 Page 9 of 22 5 To prepare to import and sell BLU FROG vodka in the United States, QC Spirits engaged the services of LPB, itself a recently-formed company organized in Delaware (Lavigne Decl., ¶ 2), to market BLU FROG vodka. LPB then arranged to have ASE, a Pennsylvania company that trades as Redemption Spirits and is a nationally known importer/distributor of alcoholic beverages, to act as the BLU FROG vodka brand importer; and QC Spirits then appointed ASE to act as its exclusive importer to supply BLU FROG vodka in the United States (Devost Decl. ¶¶ 7-8 and Exhibit E; Lavigne Decl., ¶¶ 3-5). Acting as QC’s importer, ASE sought approval from the Pennsylvania Liquor Control Board (“PLCB”) to allow BLU FROG vodka to be sold in retail state stores in Pennsylvania, and the PLCB gave its approval at a public meeting held February 1, 2017 (Complaint, ¶ 21 and Exhibit C attached thereto, page 8; Devost Decl., ¶¶ 7-8; Lavigne Decl., ¶ 4). While QC Spirits hopes and expects to sell its BLU FROG vodka to qualified customers in the Commonwealth of Pennsylvania, it has not yet done so. It has not conducted business in Pennsylvania. Its marketing agent LPB has no presence in Pennsylvania. Its importer ASE is independently owned, consistent with requirements of the Pennsylvania Liquor Code. See 47 Pa. Cons. Stat. Ann. § 4-493 (11). QC Spirits has not had direct dealings with ASE, within or without Pennsylvania, and has relied on ASE only to secure brand approval for BLU FROG vodka; and ultimately intends that ASE will act as its importer/distributor when a sale is consummated (Devost Decl., ¶ 8; Lavigne Decl., ¶¶ 4-5). In her Declaration, QC Spirits’ vice president and director Joanne Devost has shown the absence of QC Spirits’ contacts with Pennsylvania, from its relatively recent formation to the present. QC Spirits has no offices, employees, general business agents, or property in Pennsylvania, and has had no direct communications with persons, businesses or government Case 2:17-cv-00930-JP Document 8-1 Filed 04/24/17 Page 10 of 22 6 agencies in Pennsylvania. None of its officers or employees have travelled to Pennsylvania in connection with its business. It has not advertised in Pennsylvania. It has yet made no sales in Pennsylvania, and should it do so, it will make sales only through its independent importer/distributor (Devost Decl., ¶ 10). Accordingly, QC Spirits is not and will not be transacting business in Pennsylvania such as to require it to register to do business and have an agent for service of process in the Commonwealth. See 15 Pa. Cons. Stat. Ann. § 403(a).5 The only connections QC Spirits has had with Pennsylvania have been its appointment of ASE as arranged by LPB, and its engagement of two lawyers, one to advise it about an agreement to be entered with its marketing agent LPB, and the other to represent it in this lawsuit (Devost Decl., ¶¶ 9-10). None of these “contacts” are sufficient to permit this Court’s exercise of jurisdiction over QC Spirits, consistent with requirements of due process. III. ARGUMENT Even accepting as true the well-pleaded facts in Limu’s Complaint, see Watson v. Abington Township, 478 F.3d 144, 150 (3d Cir. 2007); Farina v. Nokia, 578 F. Supp. 2d 740,749 (E.D.Pa. 2008), Limu has offered no facts that allow this Court to find QC Spirits has had the “minimum contacts” with Pennsylvania necessary for this Court to exercise jurisdiction over it. Limu’s jurisdictional fact allegations are referenced in two paragraphs of its Complaint. Having asserted “[u]pon information and belief” that QC Spirits is a Canadian company having its 5 That section of Pennsylvania’s Corporations and Unincorporated Associations Code provides, as the “General rule,” a series of activities that do not constitute transacting business in the Commonwealth, for purposes of determining whether a foreign entity needs to register to do business in the Commonwealth. Activities that do not require registration include, inter alia, “(5) Selling through independent contractors;” and “(11) Doing business in interstate or foreign commerce.” Comments to that provision state that this test for registering to do business is not determinative of whether a foreign entity is amenable to service of process. It is indicative, however, of the significance of the degree of any asserted connection between a foreign entity’s business and the Commonwealth. Case 2:17-cv-00930-JP Document 8-1 Filed 04/24/17 Page 11 of 22 7 principal place of business in Canada (Complaint, ¶ 2), that it conducts general business on a “continuous and systematic” basis within Pennsylvania (Id., ¶ 4) (for which it offers no factual support), and that it promotes its vodka via a website at www.blufrogvodka.com (Id., ¶15) (where BLU FROG vodka is identified as a product of Canada), Limu alleges in paragraph 21 of its Complaint: Upon information and belief, Quality Craft Spirits Ltd. has worked with a distributor in Pennsylvania to secure approval to sell vodka under the BLU FROG designation in Pennsylvania’s state-run liquor stores. A copy of the Pennsylvania Liquor Control Board’s Meeting Minutes from February 1, 2017, showing that Blu Frog Vodka was accepted as a regular new item by the PLCB’s Bureau of Product Selection, is attached hereto as Exhibit C. These kinds of allegations are not sufficient to support Limu’s efforts to have its claims adjudicated in this Court.6 In the face of QC Spirits’ challenge, Limu has the burden to demonstrate facts that establish this Court’s jurisdiction over a foreign defendant. See Pinker v. Rochel Holdings, Ltd., 292 F.3d 361, 368 (3d Cir. 2002). A court’s exercise of jurisdiction over a non-resident defendant must satisfy both Pennsylvania’s long-arm statute and comport with constitutional due process. Under Pennsylvania law, these requirements are part of a single inquiry, because Pennsylvania’s long-arm statute, 42 Pa. Cons. Stat. Ann. § 5322(b), confers jurisdiction coextensive with the fullest extent permitted by constitutional due process. Vetrotex Certainteed Corp. v. Consolidated FiberGlass Products Company, 75 F.3d 147, 150 (3d. Cir. 1996). 6 Allegations such as these, made on information and belief, are not entitled to the presumption of validity that is afforded to well-pleaded facts. See, e.g., Hollander v. Etymotic Research, Inc., 726 F.Supp. 2d 543, 551 (E.D.Pa. 2010). Although this case involved claims of fraud subject to the heightened pleading standards of Rule 9(b), F.R.C.P., the standard for facts being well-pleaded is consistent with pleading requirements as stated in Ashcroft v. Iqbal, 556 U.S. 662, 678-82, 129 S.Ct. 1937, 1948-52 (2008). Case 2:17-cv-00930-JP Document 8-1 Filed 04/24/17 Page 12 of 22 8 Constitutional due process requires that a non-resident defendant have “certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). The defendant’s conduct and connections with the forum state must be sufficiently substantial that the defendant “should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). The defendant must have “purposefully avail[ed] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 3357 U.S. 235, 253 (1958). Merely licensing one’s rights in a trademark to a resident of a forum state does not satisfy the minimum contacts test of due process. See Farina v. Nokia, supra at 750-751. The required minimum contacts may be satisfied under principles of either general or specific jurisdiction. See O’Connor v. Sandy Lane Hotel Co., 496 F. 3d 312, 316 (3d. Cir. 2007), citing Helicopteros Nacionales De Colombia v. Hall, 466 U.S. 408, 104 S.Ct. 1868 (1984). General jurisdiction applies when the foreign defendant has “continuous systematic general business contacts” with the forum state. Helicopteros at 416, 104 S.Ct. at 1873. Specific jurisdiction applies when the plaintiff’s claims arise from a defendant’s specific contacts with the forum. Id. at 414-15, 104 S.Ct. at 1872. This distinction is central to the analysis required to determine whether this or any U.S. court may exercise jurisdiction over a non-resident corporation. See, e.g., Marten v. Godwin, 499 F.3d 290, 295-96 (3d Cir. 2007); Metallic Ceramic Coatings, Inc. v. Precision Products, Inc., 2001 U.S. Dist. LEXIS 1224, No. 00-cv- 4941, at **2-4 (E.D. Pa. Feb 13, 2001) Case 2:17-cv-00930-JP Document 8-1 Filed 04/24/17 Page 13 of 22 9 A. Limu has not alleged a fact basis for finding general jurisdiction over QC Spirits. The U.S. Supreme Court has made clear that the existence of general jurisdiction is typically limited to situations where corporate defendants are either incorporated in or have their principal place of business in the forum state. See Daimler AG v. Bauman, 134 S. Ct. 746, 760 (2014); Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S.Ct. 2846, 2953-54 (2011). This Court has echoed these decisions, in general requiring that a foreign defendant corporation’s “affiliations with the state [be] so ‘continuous and systematic’ as to render it essentially at home in the forum State.” Sköld v. Galderma Labs, L.P., 99 F. Supp. 3d 585, 603 (E.D.Pa. 2015), citing and quoting from Daimler, supra. Limu alleges no facts to support such a determination here. Indeed, in its Complaint it concedes that the two bases for Daimler’s “essentially at home” test are not present when it pleads (correctly) that QC Spirits “is a Canadian corporation” and its “principal place of business” is “British Columbia, Canada.” (Complaint, ¶ 2). Limu attempts to suggest that general jurisdiction is present by pleading “upon information and belief” that “Defendant has done business in and has carried on a continuous and systematic part of its general business within the Commonwealth of Pennsylvania by marketing and selling its products in Pennsylvania” (Id. ¶ 4), but that allegation is not only conclusory and therefore entitled to no weight, but more importantly, is also demonstrably wrong on the facts. As established in Joanne Devost’s Declaration, QC Spirits has never had such business activity in Pennsylvania. (Devost Decl., ¶ 11). B. Limu has not alleged a fact basis for finding specific jurisdiction over QC Spirits. Limu’s Complaint alleges no facts that satisfy the requirements for finding specific jurisdiction, either under the conventional three-pronged test that requires plaintiff to show the Case 2:17-cv-00930-JP Document 8-1 Filed 04/24/17 Page 14 of 22 10 defendant purposefully directed its activities at the forum state, that the claim arose from those activities, and that considering all relevant factors jurisdiction comports with notions of fair play and substantial justice, see Marten v. Godwin, supra, at 296-97; or under the so-called Calder three-part inquiry applicable when plaintiff alleges an intentional tort, requiring plaintiff to show that defendant committed an intentional tort; that the forum was the focal point where the plaintiff suffered harm; and the defendant has intentionally aimed its actions at the forum plaintiff had selected. See Calder v. Jones, 465 U.S. 783, 787-90, 104 S. Ct. 1482, 1486-88 (1984); Marten v. Godwin, supra, at 297. See also Budget Blinds, Inc. v. White, 536 F. 3d 244, 262-63 (3d Cir. 2008) (trademark infringement alleged was not necessarily intentional; case remanded to determine whether defendant’s actions as alleged – none of which individually satisfied the requirement of purposeful availment of the forum – could be sufficient if combined to establish jurisdiction). While trademark infringement can be treated as an intentional tort depending on the facts, there is no basis in Limu’s Complaint to do so. See Budget Blinds, supra, at 262-64 (whether trademark infringement is an intentional tort depends on facts such as the purpose of the defendant’s actions). Limu does not purport to allege that QC Spirits intended to cause it injury; does not allege that it (Limu) has any presence in Pennsylvania; and does not allege that QC Spirits targeted its allegedly infringing actions to cause injury to Limu in Pennsylvania. The Calder test is not applicable to determining jurisdiction over QC Spirits in this matter. The allegations in Limu’s Complaint fall far short of approaching the requirements for this Court to exercise jurisdiction over QC Spirits under a conventional specific jurisdiction analysis. QC Spirits has not been in or acted in Pennsylvania. As shown above, QC Spirits has had no actual presence in Pennsylvania – no offices, personnel, or operations or even activities of Case 2:17-cv-00930-JP Document 8-1 Filed 04/24/17 Page 15 of 22 11 any kind. Limu’s Complaint alleges no activities by which it has violated any rights of any person in Pennsylvania, much less infringed Limu’s trademark rights in the Commonwealth. Its appointment of ASE as its importer – arranged through a marketing agent (LPB) that itself had no presence in Pennsylvania – does not constitute the kind of “purposeful availment” of the privilege of conducting business in the Commonwealth that is a necessary predicate to establishing jurisdiction. See Rachelson v. E.I. Du Pont De Nemours & Co., 257 F. Supp. 257, 259 (E.D.Pa. 1966) (independent distributor’s presence in state did not confer jurisdiction over foreign defendant). Limu’s claim for trademark infringement is at best premature. And as this Court observed in Simplicity Inc. v. MTS Products, Inc., “Pennsylvania courts…have expressed reluctance at imputing the acts of independent contractors to a corporation for personal jurisdiction purposes.” 2006 WL 924993, No. 05-cv-3008, at *6 n. 11 (E.D. Pa. Apr 6, 2006), citing Meench v. Raymond Corp., 283 F. Supp. 68, 71 (E.D. Pa. 1968) and Cecere v. Ohringer Home Furniture Co., 220 A.2d 350, 354 (Pa. Super. Ct. 1996). Declining to impute ASE’s activities to QC Spirits for jurisdictional purposes is also consistent with Pennsylvania corporate law. As discussed above (supra, page 8), Pennsylvania’s Corporations statute specifically provides that “selling through independent contractors” does not “constitute transacting business in the Commonwealth.” Similarly, although QC Spirits authorized ASE to register its BLU FROG brand in states throughout the United States, including in Pennsylvania, this Court has explained that a “licensor of a mark cannot be subject to personal jurisdiction in a state solely because its licensee is located in that state…[m]erely doing business with someone who does business in Pennsylvania does not mean that [the nonresident defendant] itself does business in Pennsylvania.” Farina v. Nokia, supra, at 751. Case 2:17-cv-00930-JP Document 8-1 Filed 04/24/17 Page 16 of 22 12 The fact that ASE procured an acceptance from the Pennsylvania Liquor Control Board is also insufficient to support specific jurisdiction--the fact remains that ASE has not yet undertaken any sales or marketing activity of BLU FROG vodka in Pennsylvania. As multiple courts have held, including in Pennsylvania, the mere procurement of a government authorization does not constitute business activity in the state: “The mere possession of a license accomplishes nothing in the way of pecuniary gain: it only broadens opportunities for such gain. It is the actual practice of a profession in Pennsylvania and not the possession of the right to practice that brings a person within the jurisdiction of a Pennsylvania Court.” Lebkeucher v. Loquasto, 389 A.2d 143, (Pa Super. Ct. 1978) (medical malpractice action); see also Keston v. FirstCollect, Inc., 523 F.Supp 2d 1348, 1354 (S.D. Fla. 2007) (dismissing for lack of personal jurisdiction because “there is no evidence…that FirstCollect has ever directed collection activities toward Florida other than its license to conduct collection activities within the state”). The mere possibility or expectancy that goods would be sold with an allegedly infringing trademark is no valid basis for a claim for infringement; much less for the exercise of this Court’s jurisdiction. See, e.g., Joint Stock Society v. UDV N. America, Inc., 266 F.3d 164, 176 (3d Cir. 2001) (no genuine issue of plaintiff having suffered injury if no sales of vodka with allegedly infringing trademark had yet taken place). And here QC Spirits is not even the applicant of record seeking to register the BLU FROG mark for vodka. Presently that is QC Spirits’ sister company QCIL, a Washington corporation. See footnote 2, supra. Limu’s Complaint briefly mentions that QC Spirits promotes its vodka product under the BLU FROG mark at the website http://www.blufrogvodka.com (Complaint, ¶ 15). That website is a passive site providing only general information about BLU FROG vodka. One cannot order BLU FROG vodka on the site; cannot interactively transact business with QC Spirits on the site; Case 2:17-cv-00930-JP Document 8-1 Filed 04/24/17 Page 17 of 22 13 and no part of the site is specifically directed to residents in Pennsylvania. This kind of passive, information-only website has long been held insufficient to support specific personal jurisdiction. See, e.g., Ackourey v. Sonellas Custom Tailors, 573 Fed. Appx. 208, 212 (3d Cir. 2014) (a “passive Web site that does little more than make information available to those who are interested in it is not grounds for the exercise [of] personal jurisdiction”); Toys R Us, Inc. v Step Two, S.A., 318 F.3d 446, 451-52 (3d Cir. 2003) (even when a website is “commercially interactive,” i.e., allowing visitors to purchase products on the site, personal jurisdiction will not exist unless “additional evidence” demonstrates that “a defendant web site operator intentionally targets the site to the forum state, and/or knowingly conducts business with forum state residents via the site.”). Here as in D’Jamoos v. Pilatus Aircraft Ltd., 566 F.3d 94 (3d Cir. 2009), QC Spirits had no presence in Pennsylvania, and its only contacts with any person in Pennsylvania were part of its “efforts to exploit a national market necessarily include[ing] Pennsylvania as a target … but those efforts do not constitute the type of deliberate contacts within Pennsylvania that could amount to purposeful availment of the privilege of conducting activities in that state.” Id. at 104. There the defendant’s contacts with Pennsylvania were, if anything, more substantial than QC Spirits’ in the instant case – the defendant aircraft company had sent two employees to Pennsylvania to visit a supplier and had purchased over a million dollars of goods or services from Pennsylvania suppliers. Id.7 In sum, QC Spirits “contacts” with Pennsylvania consist of its appointment of ASE as its national importer/distributor for its BLU FROG vodka and its engagement of attorneys in Philadelphia, one to advise it on its relationships with its Delaware-based marketing agent LPB 7 Those activities were found not to relate to the claims at issue in that case, id., but are indicative, by contrast, of the almost non-existent contacts QC Spirits has had with Pennsylvania. Case 2:17-cv-00930-JP Document 8-1 Filed 04/24/17 Page 18 of 22 14 and one to represent it in this lawsuit. These do not constitute the minimum contacts necessary to satisfy the due process requirements for this Court to exercise jurisdiction over QC Spirits. See, e.g., Vetrotex, supra at 151, citing and quoting from Mellon Bank (East) v. DiVeronica Bros., Inc., 983 F.2d 551, 557 (3d Cir. 1993) (“Contracting with a resident of the forum state does not alone justify the exercise of jurisdiction over a non-resident defendant”). Here that “contracting” is even more distant than in these cited cases: QC Spirits’ only “contract,” i.e., its appointment of ASE (Exhibit E to Devost Decl.) was arranged by another non-resident of Pennsylvania (LPB) without QC Spirits’ participation other than to confirm the appointment. C. Limu does not allege a basis for finding venue is proper in this judicial district. Limu cites the general venue provision, 28 U.S.C. § 1391(b), as the basis for asserting venue in this judicial district (Complaint, ¶ 5). None of the three subparts of that subsection provide a basis for venue here. QC Spirits is not a resident of this district, and there have been no events or omissions alleged in Limu’s Complaint as having occurred anywhere in Pennsylvania that support any of its claims for relief – indeed its claims for trademark infringement or unfair competition are evidently not yet ripe for adjudication as no infringing actions are alleged to have yet taken place. Limu has not alleged, and could not show, that the decision to adopt BLU FROG for QC Spirits’ vodka occurred in or has any connection with Pennsylvania. And the lack of personal jurisdiction over QC Spirits undermines any claim that venue is proper here. It is generally recognized that the existence of venue can be determined only after issues of personal jurisdiction are resolved, and the need arises to determine whether the district provides a “convenient forum” for resolution of the case. See Leroy v. Great Western United Corp., 443 U.S. 173, 180, 99 S. Ct. 2710, 2715 (1979); Cumberland Truck Equipment Co. v. Case 2:17-cv-00930-JP Document 8-1 Filed 04/24/17 Page 19 of 22 15 Detroit Diesel Corp., 401 F.Supp.2d 415, 419 (E.D.Pa. 2005). In Cumberland Truck this Court held that considerations of venue would be considered first only if they would serve to resolve the case and when a sound justification for jurisdiction over the defendant existed (Id.) – a situation that does not exist in the present case. Here QC Spirits has no presence in this judicial district, and the absence of jurisdiction over it effectively moots any need to inquire further into the question of venue. But even were that not the case, this district would not be the “convenient forum” envisioned in the discussion of venue in Leroy and Cumberland Truck. QC Spirits is not here; nor is QCIL, which is the owner of the trademark application for BLU FROG for vodka that is the target of Limu’s concern. Venue is not properly found in this district, warranting dismissal of Limu’s Complaint under Fed. R. Civ. P. 12(b)(3). IV. CONCLUSION Limu’s Complaint against QC Spirits should be dismissed. Limu has not alleged QC Spirits has acted in Pennsylvania or has engaged in conduct anywhere that satisfies the minimum contacts required, consistent with considerations of constitutional due process, that would permit this Court to exercise jurisdiction over QC Spirits in this matter; and QC Spirits has shown that it has no such contacts with Pennsylvania that satisfy the due process requirements for personal jurisdiction over it. And for these reasons also, this district is not the proper venue for the litigation of Limu’s claims. Case 2:17-cv-00930-JP Document 8-1 Filed 04/24/17 Page 20 of 22 16 Dated: April 24, 2017 Respectfully submitted, By: /s/ Aleksander J. Goranin Aleksander J. Goranin (Pa. Bar # 92452) DUANE MORRIS LLP 30 South 17th Street Philadelphia, PA 19103-4196 Tel: 215-979-1868 Fax: 215-754-4683 Email: agoranin@duanemorris.com Jeffrey Squires PEACOCK MYERS, P.C. (pro hac vice pending) 201 Third St. NW, Suite 1340 Albuquerque, NM 87102 Tel: 505-998-6116 Fax: 505-243-2542 Email: jsquires@peacocklaw.com Attorneys for Defendant Quality Craft Spirits Ltd. Case 2:17-cv-00930-JP Document 8-1 Filed 04/24/17 Page 21 of 22 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on April 24, 2017, I filed the foregoing Defendant Quality Craft Spirits Ltd.’s Motion to Dismiss for Lack of Personal Jurisdiction and Improper Venue electronically through the CM/ECF system, which caused the following parties or counsel to be served by electronic means: Nancy A. Rubner Frandsen Lesley M. Grossberg BAKER & HOSTETLER LLP Cira Centre, 12th Floor 2929 Arch Street Philadelphia, PA 19104-2891 Tel: 215-568-3100 Fax: 215-568-3439 Email: nfrandsen@bakerlaw.com Email: lgrossberg@bakerlaw.com /s/ Aleksander J. Goranin Aleksander J. Goranin Attorney for Defendant Quality Craft Spirits Ltd. Case 2:17-cv-00930-JP Document 8-1 Filed 04/24/17 Page 22 of 22 EXHIBIT 1 Case 2:17-cv-00930-JP Document 8-2 Filed 04/24/17 Page 1 of 3 Case 2:17-cv-00930-JP Document 8-2 Filed 04/24/17 Page 2 of 3 Case 2:17-cv-00930-JP Document 8-2 Filed 04/24/17 Page 3 of 3 EXHIBIT 2 Case 2:17-cv-00930-JP Document 8-3 Filed 04/24/17 Page 1 of 3 Case 2:17-cv-00930-JP Document 8-3 Filed 04/24/17 Page 2 of 3 Case 2:17-cv-00930-JP Document 8-3 Filed 04/24/17 Page 3 of 3 EXHIBIT 3 Case 2:17-cv-00930-JP Document 8-4 Filed 04/24/17 Page 1 of 21 Case 2:17-cv-00930-JP Document 8-4 Filed 04/24/17 Page 2 of 21 Case 2:17-cv-00930-JP Document 8-4 Filed 04/24/17 Page 3 of 21 Case 2:17-cv-00930-JP Document 8-4 Filed 04/24/17 Page 4 of 21 Case 2:17-cv-00930-JP Document 8-4 Filed 04/24/17 Page 5 of 21 Case 2:17-cv-00930-JP Document 8-4 Filed 04/24/17 Page 6 of 21 Case 2:17-cv-00930-JP Document 8-4 Filed 04/24/17 Page 7 of 21 Case 2:17-cv-00930-JP Document 8-4 Filed 04/24/17 Page 8 of 21 Case 2:17-cv-00930-JP Document 8-4 Filed 04/24/17 Page 9 of 21 Case 2:17-cv-00930-JP Document 8-4 Filed 04/24/17 Page 10 of 21 Case 2:17-cv-00930-JP Document 8-4 Filed 04/24/17 Page 11 of 21 Case 2:17-cv-00930-JP Document 8-4 Filed 04/24/17 Page 12 of 21 Case 2:17-cv-00930-JP Document 8-4 Filed 04/24/17 Page 13 of 21 Case 2:17-cv-00930-JP Document 8-4 Filed 04/24/17 Page 14 of 21 Case 2:17-cv-00930-JP Document 8-4 Filed 04/24/17 Page 15 of 21 Case 2:17-cv-00930-JP Document 8-4 Filed 04/24/17 Page 16 of 21 Case 2:17-cv-00930-JP Document 8-4 Filed 04/24/17 Page 17 of 21 Case 2:17-cv-00930-JP Document 8-4 Filed 04/24/17 Page 18 of 21 Case 2:17-cv-00930-JP Document 8-4 Filed 04/24/17 Page 19 of 21 Case 2:17-cv-00930-JP Document 8-4 Filed 04/24/17 Page 20 of 21 Case 2:17-cv-00930-JP Document 8-4 Filed 04/24/17 Page 21 of 21 EXHIBIT 4 Case 2:17-cv-00930-JP Document 8-5 Filed 04/24/17 Page 1 of 4 Case 2:17-cv-00930-JP Document 8-5 Filed 04/24/17 Page 2 of 4 Case 2:17-cv-00930-JP Document 8-5 Filed 04/24/17 Page 3 of 4 Case 2:17-cv-00930-JP Document 8-5 Filed 04/24/17 Page 4 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA THE LIMU COMPANY, LLC, Plaintiff, v. QUALITY CRAFT SPIRITS LTD., Defendant. Civil Action No. 2:17-cv-00930-JP [PROPOSED] ORDER On this day of , 2017, it is hereby ORDERED that Defendant Quality Craft Spirits Ltd.’s Motion to Dismiss for Lack of Personal Jurisdiction and Improper Venue is GRANTED and Plaintiff The Limu Company, LLC’s Complaint is hereby DISMISSED. Hon. John R. Padova United States District Judge Case 2:17-cv-00930-JP Document 8-6 Filed 04/24/17 Page 1 of 1