Pathfinder Software, LLC v. Core Cashless, LLC

127 F. Supp. 3d 531, 2015 U.S. Dist. LEXIS 114419, 2015 WL 5093284
CourtDistrict Court, M.D. North Carolina
DecidedAugust 28, 2015
DocketNo. 1:14-cv-633
StatusPublished
Cited by12 cases

This text of 127 F. Supp. 3d 531 (Pathfinder Software, LLC v. Core Cashless, LLC) is published on Counsel Stack Legal Research, covering District Court, M.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pathfinder Software, LLC v. Core Cashless, LLC, 127 F. Supp. 3d 531, 2015 U.S. Dist. LEXIS 114419, 2015 WL 5093284 (M.D.N.C. 2015).

Opinion

MEMORANDUM OPINION AND ORDER

LORETTA C. BIGGS, District Judge.

Plaintiff Pathfinder Software, LLC (“Pathfinder”) brings this action against Defendant Core Cashless, LLC (“Core Cashless”), alleging common law trademark infringement; false designation of origin in violation of the Lanham Act, 15 U.S.C. § 1125(a) (2012); and unfair and deceptive trade practices in violation of state statutes, N.C. Gen.Stat. § 75-1.1 (2015). (Compl. 9-12, ECF No. 1.) Before the Court are (1) Core Cashless’ Motion to Dismiss for lack of personal jurisdiction and for improper venue, pursuant to Rules [536]*53612(b)(2) and 12(b)(3) of the Federal Rules of Civil Procedure (ECF No. 10) and (2) Core Cashless’ Motion Asking the Court to Disregard Plaintiffs Brief in Surreply (ECF No. 20). The Court heard oral argument on August 5, 2015. For the reasons below, the Court grants both motions.1

I. BACKGROUND

Pathfinder, a North Carolina company, “provides specialty software products and cashless payment systems for amusement, leisure, and entertainment industries in North Carolina and around the world.” (Compl. ¶¶ 2, 6, ECF No. 1.) Core Cashless, a Kansas company, also provides software and cashless payment systems for the amusement and recreation industries. (Id. ¶¶ 3, 17.) Its products include a mobile application that allows smartphone users to save admission tickets for entertainment venues on their phones. (Def.’s Reply 4, ECF No. 18.) The application is available to download through GooglePlay, the official application store for Android smartphones and tablets. (Id.) At least three North Carolina residents have downloaded the application. (Pl.’s Opp’n 5, ECF No. 15.) The application, however, is not compatible with any entertainment venue in North Carolina, as none use the Core Cashless system. (Def.’s Reply 4 n. 1, ECF No. 18.)

Core Cashless operates as a limited liability company in Kansas, with its principal place of business in Kansas. (Owen Decl. ¶ 3, ECF No. 11-1.) It is not registered to do business in North Carolina and has no offices, bank accounts, real estate, or personal property in the state. (Id. ¶¶ 6-9.) No Core Cashless employees or agents live or work in North Carolina, and none have traveled to North Carolina on business. (Id. ¶¶ 10-11.) Core Cashless does, however, have one customer in North Carolina: the Billy Graham Evangelistic Association’s Billy Graham Library (“Library”). (Def.’s Mem. 6, ECF No. 11.) Through a service contract, Core Cashless provides software support to the Library for $7,000 per year. (Id.; Owen Decl. ¶¶ 16-17, ECF No. 11-1.) Core Cashless’ customers also include a water park in Georgia that is owned by a North Carolina company, BPR Properties. (See Press Release, ECF No. 15-2; Def.’s Reply 3, ECF No. 18.) In 2014, Core Cashless issued a press release announcing that it had “partner[ed] up with North Carolina based BPR Properties” to provide software systems for the Georgia water park. (Press Release, ECF No. 15-2.) Core Cashless published the press release on its website and posted links to the press release on its Facebook and Twitter pages. (See id.; Facebook Post, ECF No. 15-9; Twitter Post, ECF No. 15-10.)

Core Cashless maintains a website that explains the eoinpany’s history and how cashless payment systems work. (Owen Decl. ¶¶ 19-20, ECF No. 11-1.) Through a feature called “Contact CORE Today,” visitors can submit an inquiry, along with their name and contact information, directly through the website. (Id. ¶ 21; see Website Pages, ECF No. 1512.) After a visitor submits an inquiry, a Core Cashless representative follows up through email. (Pl.’s Opp’n 15, ECF No. 15; see Fitzgerald Deck' ¶¶ 4-5; ECF No. 15-3.) At least one North Carolina resident has submitted [537]*537an inquiry through Core Cashless’ website and engaged in follow-up discussions with a Core Cashless representative. (See Fitgerald Decl. ¶¶ 4-7; ECF No. 15-3.) Another website feature allows visitors to view demonstrations of Core Cashless’ product and complete a mock transaction, using a test credit card, for the purpose of testing the product. (Pl.’s Opp’n 14, ECF No. 15.) Visitors cannot make purchases through the website. (Owen Decl. ¶ 22, ECF No. 11-1.)

Pathfinder, in 2010, developed and introduced a logo known as the “Circular Path Mark,” which it uses for all of its services, customer interactions, and advertising. (Compl. ¶ 10, ECF No. 1.) Core Cashless, until 2013, used a rectangular mark on its goods and services. (Id. ¶ 18.) Around early 2013, it introduced a circular mark, along with a marketing campaign featuring the mark. (Id. ¶¶ 20-21.) Around November 2013, Core Cashless introduced a second circular mark for its mobile application. (Id. ¶ 24.) This lawsuit arises out of the alleged similarities between Pathfinder’s Circular Path Mark and Core Cashless’ two circular marks. Core Cashless has filed a Motion to Dismiss for lack of personal jurisdiction and for improper venue, as well as a Motion Asking the Court to Disregard Plaintiffs Brief in Surreply.

II. MOTION TO DISREGARD SUR-REPLY

Following the ordinary course of briefing on Core Cashless’ Motion to Dismiss, Pathfinder filed a surreply (ECF No. 19), prompting Core Cashless to file a Motion Asking the Court to Disregard Plaintiffs Brief in Surreply. Though the Local Rules do not expressly prohibit surreplies, “[a] surreply is not generally allowed under this district’s Local Rules.” Luna-Reyes v. RFI Constr., LLC, 57 F.Supp.3d 495, 498 (M.D.N.C.2014) (citing L.R. 7.3). “Generally, courts allow a party to file a surreply only when fairness dictates based on new arguments raised in the previous reply.” Fulk v. Norfolk S. Ry. Co., 35 F.Supp.3d 749, 751 n. 1 (M.D.N.C.2014) (quoting DiPaulo v. Potter, 733 F.Supp.2d 666, 670 (M.D.N.C.2010)). Absent new arguments, “a surreply is unnecessary.” Adefila v. Select Specialty Hosp., 28 F.Supp.3d 517, 522 n. 3 (M.D.N.C.2014).

Here, Core Cashless raises no new arguments in its reply. Pathfinder does not contend otherwise, arguing instead that a surreply is “necessary in fairness ... to correct ... factual errors and legal errors” in Core Cashless’ reply. (Pl.’s Surreply Opp’n 1, ECF No. 21.) Pathfinder’s surre-ply, however, does not correct any statements of fact or law in Core Cashless’ reply; rather, it presents legal arguments couched as corrections. Accordingly, the Court grants Core Cashless’ Motion Asking the Court to Disregard Plaintiffs Brief in Surreply and will not consider Pathfinder’s surreply when evaluating Core Cashless’ Motion to Dismiss.

III. MOTION TO DISMISS

Core Cashless moves to dismiss this action for lack of personal jurisdiction, pursuant to Rule 12(b)(2), and improper venue, pursuant to Rule 12(b)(3). Because the Court concludes that it lacks personal jurisdiction over Core Cashless, it will not evaluate whether venue in this district is proper.

A. Personal Jurisdiction Standard

On a personal jurisdiction challenge, the plaintiff bears the burden of ultimately proving personal jurisdiction by a preponderance of the evidence. Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc.,

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127 F. Supp. 3d 531, 2015 U.S. Dist. LEXIS 114419, 2015 WL 5093284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pathfinder-software-llc-v-core-cashless-llc-ncmd-2015.