PFIP, LLC v. Planet Fitness Enter. CV-04-250-JD 11/10/04 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
PFIP, LLC
v. Civil No. 04-250-JD Opinion No. 2004 DNH 159 Planet Fitness Enterprises, Inc., et al.
O R D E R
The plaintiff, PFIP, LLC, brings suit against Planet Fitness
Enterprises, Inc., its related corporations, and its president,
Rick Berks, alleging trademark infringement and unfair practices
under the Lanham Act, copyright infringement in violation of the
Copyright Act, common law trademark infringement, breach of
contract, unjust enrichment, and violation of New Hampshire's
Consumer Protection Act. The defendants move to dismiss the
claims for lack of personal jurisdiction and, alternatively, ask
that the case be transferred to the Southern District of Florida.
PFIP opposes the motion to dismiss.
Background
PFIP is a New Hampshire corporation that owns certain
"Planet Fitness" trademarks and copyrights. PFIP is affiliated
with Pla-Fit Franchise, LLC, that markets franchises for "PLANET
FITNESS" exercise centers, including centers in New Hampshire, Maine, and Florida. Planet Fitness Enterprises, Inc., ("PFE")
operates three fitness centers under the name "Planet Fitness,"
in southern Florida. Rick Berks is its president. PFE began
using the name "Planet Fitness" in 1993 under a registered
trademark, and PFIP began using the same name several years
later.
PFIP brought a cancellation proceeding against PFE to stop
its use of the name "Planet Fitness" but dropped the proceeding
when it learned of PFE's prior use of the name. PFIP then began
negotiations with Berks to resolve use of the name. Berks and
Michael Grondahl, the director of PFIP, discussed the matter by
telephone between New Hampshire and Florida. Berks's Florida
attorney reviewed the documents. Their negotiations led to an
agreement that was signed in April of 2002. Under the agreement,
PFIP purchased PFE's registered trademark for "Planet Fitness"
for $75,000 and granted PFE a license to use the trademark within
a specified area of southern Florida.
In May of 2002, Berks and Grondahl met in Florida to discuss
the possibility of PFIP purchasing PFE. Other officers of PFIP
met with Berks in Florida during August of 2002. Further
negotiations took place between PFIP and PFE and through their
respective counsel. The parties never reached a final agreement
on the sale of PFE to PFIP.
2 In early 2004, PFIP sent franchise information to Berks in
Florida, hoping to interest him in becoming a PFIP franchisee.
In response, Berks contacted Grondahl for more information.
Berks also talked with Grondahl about a possible joint purchase
of a health club in Pompano Beach, Florida. PFIP sent Berks more
information and samples of PFIP marketing materials.
In February or March of 2004, Berks called Grondahl to ask
about beginning a marketing program for FPE in Florida. Grondahl
agreed to help Berks set up a corporate membership drive and gave
him contact information for the software vendor in Connecticut
that PFIP used. Grondahl also gave Berks other marketing
information and advice. Berks contends that Grondahl told him
that it did not matter if he used the PFIP logo and material in
the PFE marketing materials. Berks asked to have his clubs
identified on the PFIP web site and then told the web master that
Grondahl had agreed to add the PFE clubs to the PFIP web site.
In April of 2004, Berks contacted Spectrum Monthly &
Printing, Inc., in Manchester, New Hampshire, to inguire about
printing 90,000 pieces for direct mail advertising. Spectrum had
done printing for PFIP for several years, and the co-president of
Spectrum, Richard Pease, recognized the content and layout of
Berks's pieces as being the same as those used by PFIP. Pease
believed that Berks was authorized by PFIP to use that content
3 and layout. Berks sent the advertising materials to
approximately 90,000 addresses in southern Florida. PFIP alleges
that the defendants infringed its copyrights and trademarks by
using PFIP logos and trademarks in the advertising materials.
Berks states in his affidavit that he has never been to New
Hampshire. The defendants represent, through Berks's affidavit,
that all of their records and witnesses are in southern Florida.
PFIP, through Grondahl's affidavit, states that all of its
records and its witnesses are located in New Hampshire.
Standard of Review
The plaintiff bears the burden of establishing personal
jurisdiction. Jet Wine & Spirits v. Bacardi & Co., 298 F.3d 1, 7
(1st Cir. 2003). When jurisdictional issues are raised in a
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(2), without a hearing, the plaintiff may establish personal
jurisdiction by making a prima facie showing of jurisdiction over
the defendants.1 Daynard v. Ness, Motley, Loadholt, Richardson &
Poole, P .A . , 290 F.3d 42, 51 (1st Cir. 2002) . The court
" 'accept[s] the plaintiff's (properly documented) evidentiary
1Neither PFIP nor the defendants reguested a hearing, and both have proceeded under the prima facie standard, augmenting their filings with affidavits and other evidence.
4 proffers as true for the purpose of determining the adequacy of
the prima facie jurisdictional showing.'" Id. (quoting Foster-
Miller v. Babcock & Wilcox Canada, 46 F.3d 138, 145 (1st Cir.
1995)). Those facts are taken as true and in the light most
favorable to jurisdiction, whether or not they are disputed by
the defendants. Id. The facts proffered by the defendants are
also considered, but only to the extent they are not disputed by
the plaintiff's properly documented facts.2 Id.
Discussion
PFIP alleges both federal and state claims and asserts that
subject matter jurisdiction exists pursuant to 15 U.S.C. § 1121
and 28 U.S.C. § 1338, along with supplemental jurisdiction
pursuant to 28 U.S.C. § 1367.3 The personal jurisdiction
analysis in federal question cases differs from the analysis in
diversity cases, at least initially, because the constitutional
limits are provided by the Fifth, rather than the Fourteenth,
Amendment. See United States v. Swiss Am. Bank, Ltd., 274 F.3d
610, 618 (1st Cir. 2001). The Fifth Amendment requires only that
2The court considers the defendants' initial motion and its subsequent motion filed in response to PFIP's amended complaint, and PFIP's objections to both motions.
3PFIP alleges "pendant jurisdiction" which has been replaced by supplemental jurisdiction under § 1367.
5 the defendant have adequate contacts with the United States as a
whole. Id. There is no dispute that the defendants, Florida
corporations and an individual resident of Florida, have
sufficient contacts with the United States to satisfy due
process.
In addition, however, the defendants must be amenable to
service of process, which may be authorized by either the federal
statute providing the cause of action or an applicable civil
rule. Id.; Fed. R. Civ. P. 4 (k). Neither the Lanham Act nor the
Copyright Act provides for nationwide service of process, and
PFIP has not asserted that any federal statute provides for
expanded service. See, e.g., Cambridge Literary Props., Ltd. v.
W. Goebel Porzellanfabrik GmbH, 295 F.3d 59, 63 (1st Cir. 2002);
Fort Knox Music Inc. v. Baptiste, 203 F.3d 193, 196 (2d Cir.
2000); Int'l Truck & Eng. Corp. v. Dow-Hammond Trucks Co., 221 F.
Supp. 2d 898, 901 (N.D. 111. 2002). In the absence of
statutorily provided service, a federal district court will have
personal jurisdiction over a defendant under Federal Rule of
Civil Procedure 4 (k) "only to the extent permitted by the law of
the state in which the district court sits." United Elec., Radio
& Mach. Workers of Am. v. 163 Pleasant St. Corp., 960 F.2d 1080,
1086 (1st Cir. 1992) (internal quotation marks omitted). The
New Hampshire long-arm statutes applicable to unregistered
6 foreign corporations and to non-resident individuals. New
Hampshire Revised Statutes Annotated ("RSA") §§ 293-A:15.10 and
510:4, permit courts to exercise personal jurisdiction to the
full extent that due process will allow. Sawtelle v. Farrell, 70
F.3d 1381, 1388 (1st Cir. 1995). Due process requires that the
defendants have "certain minimum contacts with New Hampshire such
that maintenance of the suit does not offend traditional notions
of fair play and substantial justice." Jet Wine & Spirits, 298
F.3d at 7 (internal quotation marks omitted). Personal
jurisdiction may be general or specific, depending on "the
quality and quantity of the potential defendant's contacts with
the forum." Phillips Exeter Acad, v. Howard Phillips Fund, 196
F .3d 284, 288 (1st Cir. 1999).
PFIP argues that the defendants' contacts with New Hampshire
support both general and specific jurisdiction.4 "[A] defendant
who has maintained a continuous and systematic linkage with the
forum state brings himself within the general jurisdiction of
that state's courts in respect to all matters, even those that
41he parties do not distinguish among the defendants for purposes of the jurisdictional analysis. Berks is alleged, without dispute, to be an officer of the four defendant corporations. It appears on the present record that Berks was acting, at all relevant times, on behalf of the defendant corporations, so that Berks's contacts with New Hampshire are the pertinent contacts with the forum for purposes of the jurisdictional analysis.
7 are unrelated to the defendant's contacts with the forum." Id.
(citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466
U.S. 408, 414 (1984)). In contrast, specific jurisdiction exists
"if [the] case relates sufficiently to, or arises from, a
significant subset of contacts between the defendant and the
forum." Id. "[D]etermining personal jurisdiction has always
been more an art than a science . . . in which few answers will
be written in black and white. The greys are dominant and even
among them the shades are innumerable." Swiss Am. Bank, 274 F.3d
at 617 (internal guotation marks and citations omitted).
A. General Jurisdiction
To establish general jurisdiction, PFIP must show that the
defendants had substantial contacts with New Hampshire that were
both continuous and systematic and that the exercise of
jurisdiction would be reasonable. Swiss Am. Bank, 274 F.3d at
619; 4 Charles Alan Wright & Arthur R. Miller, Federal Practice &
Procedure, § 1067.5, at 507 (2002). Reasonableness is assessed
using the five "gestalt" factors that determine the fundamental
fairness of exercising jurisdiction. Swiss Am. Bank, 274 F.3d at
619. The test for general jurisdiction is more stringent than
the test for specific jurisdiction because it applies to all
claims, even those that are unrelated to the defendants' forum contacts. Id.; Phillips, 196 F.3d at 288.
PFIP contends that Berks's telephone calls, faxes, and mail
to PFIP and its attorneys in New Hampshire, along with the
defendants' transaction with Spectrum Monthly & Printing in New
Hampshire, constitute sufficiently continuous and systematic
contacts to satisfy general jurisdiction. Although the parties
dispute who initiated the majority of those contacts, for
purposes of general jurisdiction, that dispute appears to be
immaterial. It is undisputed that the defendants have never
operated a business in New Hampshire, have never advertised or
otherwise solicited business here, and have no representative
here. The defendants' only contacts with New Hampshire are their
interactions with PFIP and Spectrum between 2002 and 2004.
The defendants' communications with PFIP in New Hampshire by
telephone, mail, and fax are contacts for purposes of personal
jurisdiction. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476
(1985). However, to meet the general jurisdiction standard, PFIP
must show that the defendants were "engaged in longstanding
business in the forum state, such as marketing or shipping
products, or performing services or maintaining one or more
offices there; activities that are less extensive than that will
not gualify." 4 Wright & Miller, supra, § 1067.5, at 507.
For example, a defendant's contacts that consisted of "sending its chief executive officer to Houston for a contract-
negotiation session; accepting into its New York bank account
checks drawn on a Houston bank; purchasing helicopters,
eguipment, and training services from Bell Helicopter [in Texas]
for substantial sums; and sending personnel to Bell's facilities
in Fort Worth for training" were not enough to establish general
jurisdiction. Helicopteros, 466 U.S. at 416. In another case
involving the sufficiency of contacts with the United States, the
defendant advertised for two years in a magazine in the United
States, subscribed to a credit card company and entered a
licensing agreement with another company in the United States,
participated in litigation in the United States, entered a joint
venture with another bank here, and had other banking
relationships with companies here, but the court found those
contacts were insufficient to establish general jurisdiction.
Swiss Am. Bank, 274 F.3d at 619-20; see also, e.g.. Cent. Freight
Lines Inc. v. APA Trans. Corp., 322 F.3d 376, 381 (5th Cir. 2003)
(temporary business location in forum, arranging and receiving
shipments in forum, and developing business and negotiating
contracts in forum not enough where defendant did not actually
operate in forum); Sandstrom v. ChemLawn Corp., 904 F.2d 83, 89-
90 (1st Cir. 1990) (securing license and hiring agent in Maine to
do business in the future and recruiting personnel there
10 insufficient to establish general jurisdiction); In re New Motor
Vehicles Canadian Export Antitrust Litq., 307 F. Supp. 2d 145,
150-51 (D. Me. 2004) (using forum-based advertising services,
attending meetings in the forum, and purchasing parts there not
enough).
The defendants' sporadic contacts with New Hampshire by
telephone, fax, and mail over a period of only two years are
insufficient to meet the high standard of general jurisdiction.
When the plaintiff is unable to show sufficient contacts with the
forum, the court need not consider the gestalt factors.
Donatelli v. Nat'l Hockey League, 893 F.2d 459, 465 (1st Cir.
1990). Therefore, PFIP has not shown that general jurisdiction
exists over the defendants.
B. Specific Jurisdiction
The analysis of specific jurisdiction is divided into three
parts: relatedness, purposeful availment, and reasonableness.
Daynard, 290 F.3d at 60. First, each claim must directly relate
to or arise out of the defendants' contacts with the forum state.
Phillips, 196 F.3d at 288. Second, "those contacts [must]
constitute purposeful availment of the benefits and protections
afforded by the forum's laws." Id. Third, the overall
reasonableness of exercising jurisdiction over the defendants
11 considered in light of the "gestalt" factors must favor
exercising jurisdiction. Id. Specific personal jurisdiction is
both defendant-specific and claim-specific, so that jurisdiction
may exist as to some claims and some defendants but not others.5
Id. at 289; see also Remick v. Manfredy, 238 F.3d 248, 255 (3d
Cir. 2001); Hainey v. World Am Communications, Inc., 263 F. Supp.
2d 338, 344 (D.R.I. 2003) .
1. Relatedness.
For activity to be significant in the context of specific
jurisdiction, the plaintiff's claim must directly arise from that
activity. Phillips, 196 F.3d at 289. That is, "the defendant's
in-state contact must form an important or at least material
element of proof" for the plaintiff's claim. United Elec.
Workers, 960 F.2d at 1089 (internal guotation marks and brackets
omitted). Because the analysis is claim-specific, claims based
on different theories, such as contract and tort, are analyzed
differently. Mass. Sch. of Law v. Am. Bar Ass'n, 142 F.3d 26, 35
(1st Cir. 1998) .
5In this case, the parties do not differentiate among the defendants. Therefore, the court will not analyze personal jurisdiction separately as to each defendant.
12 __________ a. Infringement and related claims.
In its first and second claims, PFIP alleges that the
defendants infringed its trademarks and falsely designated origin
by using its trademarks in violation of the Lanham Act, 15 U.S.C.
§§ 1114(1) and 1125(a). PFIP's third claim alleges infringement
in violation of PFIP's common law trademark rights and the
Copyright Act, 17 U.S.C. § 106. In its fourth and seventh
claims, PFIP alleges that the defendants violated the New
Hampshire Consumer Protection Act, RSA 358-A, and are liable for
unjust enrichment.
Infringement and unfair competition claims are analyzed as
tort claims. See Hard Rock Cafe Licensing Corp. v. Concession
Serv., Inc., 955 F.2d 1143, 1150 (7th Cir. 1992) . Some courts
have applied an "effects test," based on Calder v. Jones, 465
U.S. 783 (1984), to decide personal jurisdiction in infringement
cases, concluding that "the state in which the injury occurs is
the state in which the tort occurs." Indianapolis Colts v.
Metro. Baltimore Football Club, 34 F.3d 410, 412 (7th Cir. 1994);
see also Lighthouse Carwash Sys., LLC v. Illuminator Bldg. Co.,
2004 WL 2378844, at *3-*4 (S.D. Ind. Aug. 31, 2004); Isbell v. DM
Records, Inc., 2004 WL 1243153, at *10-*11 (N.D. Tex. June 4,
2004). But see 5 J. Thomas McCarthy, McCarthy on Trademarks &
13 Unfair Competition § 32.38 (4th ed. 2004) (disagreeing with
application of Calder in Indianapolis Colts) .
The First Circuit, however, suggests that the Calder
"effects test" should be limited to the purposeful availment
element of specific jurisdiction. See Swiss Am. Bank, 274 F.3d
at 623-24. Other courts have found that the "effects test"
cannot provide a separate basis for specific jurisdiction in
infringement cases as allowed by the Seventh Circuit. See, e.g.,
LCW Automotive Corp. v. Restivo Enters., 2004 WL 2203440, at *7
(W.D. Tex. Sept. 24, 2004); Lindgren v. GOT, LLC, 312 F. Supp. 2d
1125, 1132-33 (S.D. Iowa 2004); McCarthy, supra, § 32:38 (stating
"that it is a mis-reading of Calder to find personal jurisdiction
in the trademark owner's home state solely because the trademark
owner feels the effects there" and citing cases). The court
instead should look at the legal theory to determine what conduct
is material to each claim and in the case of tort claims conduct
that is a "but for" cause of the claim is considered. See
Cambridge Literary, 295 F.3d at 64-65.
PFIP contends that the defendants' use of Spectrum in New
Hampshire to print advertising using PFIP's logos and trademarks
is a "but for" cause of the infringement and unfair competition
claims. Copying is an essential element of a copyright
infringement case. See 17 U.S.C. § 106; Gamma Audio & Video,
14 Inc. v. Ean-Chea, 11 F.3d 1106, 1114 (1st Cir. 1993). In
addition there is some indication that the defendants used
Spectrum because it also did printing for PFIP. It appears,
therefore, that the defendants' contact with Spectrum is directly
related to the copyright infringement claims.
PFIP's trademark infringement, unfair competition, and
unjust enrichment theories focus on the defendants' use of its
logos and trademarks, that is the dissemination of the
advertising and other display of the logos and trademarks in
Florida. As alleged, the defendants' order to have the materials
printed in New Hampshire has little or nothing to do with those
claims. Therefore, the defendants' New Hampshire activity does
not appear to be related to those claims.
PFIP argues that "but for" the materials having been
printed, it would not have been injured by the defendants'
actions and that it felt the injury in New Hampshire.
Relatedness, however, is not satisfied by the in-forum effects of
the defendants' extra-forum activities. See Swiss Am. Bank, 274
F.3d at 625. Therefore, the printing contact with New Hampshire
is at best only minimally related to the trademark infringement
claim and related tort claims.
15 _____ b. Breach of contract claim.
The mere existence of a contractual relationship between the
parties is insufficient to support the exercise of personal
jurisdiction. Burger King, 471 U.S. 478. Instead, the court
must ask "whether the defendant's contacts with the forum were
instrumental either in the formation of the contract or in its
breach." Phillips, 196 F.3d at 289. In cases such as this one,
where the defendants' actions involving the forum state "are less
tangible than physical presence[,] . . . an inquiring court must
determine the extent to which the defendant directed an out-of-
state activity at the forum" to decide whether the activity is a
contact, for jurisdictional purposes. Id.
The formation of the license agreement took place through
communications between New Hampshire and Florida. PFIP initiated
the contact. The record does not indicate that the defendants
directed activity at New Hampshire. Therefore, the contact that
led to the formation of the agreement does not appear to have
particularly involved New Hampshire.
PFIP alleges that the agreement was breached when the
defendants obtained materials with PFIP logos and trademarks
after feigning interest in a PFIP franchise and also when they
registered the name "PLANET FITNESS" with the Secretary of State
16 in Florida. PFIP initiated contact with PFE to interest Berks in
a PFIP franchise by sending materials to him in Florida. Berks
then responded to PFIP's overtures. No New Hampshire contacts
are implicated by the defendants' registration of the "Planet
Fitness" name in Florida. Therefore, the defendants' contacts
with New Hampshire were not instrumental in either the formation
or the alleged breach of the agreement.
2. Purposeful availment.
"The purposeful availment test reguires us to consider
whether [the defendants' ] contacts with New Hampshire represent a
purposeful availment of the privilege of conducting activities in
New Hampshire, thereby invoking the benefits and protections of
its laws and making the defendants' involuntary presence before
the state's courts foreseeable." Phillips, 196 F.3d at 292
(internal guotation marks and brackets omitted). To demonstrate
purposeful availment, the plaintiff must proffer "evidence that
the defendant[s] actually reached out to the plaintiff's state of
residence to create a relationship - - say, by solicitation, - -
the mere fact that the defendant[s] willingly entered into a
tendered relationship does not carry the day." Id. Purposeful
availment depends upon the extent to which the defendants
voluntarily took action that made it foreseeable they might be
17 required to defend themselves in court in New Hampshire. See Jet
Wine, 298 F.3d at 11.
When considering a contract claim, the court evaluates "the
parties' 'prior negotiations and contemplated future
consequences, along with the terms of the contract and the
parties' actual course of dealing' to determine whether the
defendants purposefully established minimum contacts." Daynard,
290 F.3d at 52 (quoting Burger King, 471 U.S. at 479). The
Calder "effects test" may provide some guidance in evaluating
purposeful availment in the context of intentional torts, but
only when both the actual tort and its consequences occurred in
the forum. Swiss Am. Bank, 274 F.3d at 624.
To the extent that copying PFIP's trademarks and logos by
having materials printed in New Hampshire constitutes a copyright
violation and PFIP was injured in New Hampshire by that action,
the "effects test" would support purposeful availment with
respect to that claim. PFIP's case is stronger if the inference
is credited that the defendants hired Spectrum because of its
connection with PFIP. Therefore, purposeful availment appears to
exist with respect to the copyright claims.
The defendants' contacts with New Hampshire do not show
purposeful availment in the context of PFIP' other claims,
however. The defendants did not distribute the allegedly
18 infringing advertising in New Hampshire, did not and do not
operate exercise facilities here, and do not plan to do so in the
future. The parties' agreement pertains to the defendants'
activities in Florida and includes a choice-of-law provision
specifying Florida law. Although Berks and Grondahl continued to
have business contact with each other, by telephone, fax, and
mail between Florida and New Hampshire, no further agreement was
reached, and their contact appears to have been primarily the
result of PFIP's initial overtures. Therefore, PFIP has not
shown that the defendants voluntarily reached out to New
Hampshire to create a relationship so as to make it foreseeable
that they would be reguired to defend themselves in New Hampshire
against the infringement and unfair competition claims PFIP
alleges.6
3. Gestalt factors.
Whether it is reasonable to exercise personal jurisdiction
depends on weighing the "gestalt factors":
(1) the defendant's burden of appearing, (2) the forum state's interest in adjudicating the dispute, (3) the plaintiff's interest in obtaining convenient and
6In contrast, for example, if the suit were an action brought by Spectrum against the defendants alleging breach of the printing agreement, personal jurisdiction would likely be appropriate in New Hampshire.
19 effective relief, (4) the judicial system's interest in obtaining the most effective resolution of the controversy, and (5) the common interests of all sovereigns in promoting substantive social policies.
Jet Wine, 298 F.3d at 11 (guoting Foster-Miller, Inc. v. Babcock
& Wilcox Canada, 46 F.3d 138, 150 (1st Cir. 1995)). The
reasonableness inguiry operates on a sliding scale that depends
on the strength of the plaintiff's showing of relatedness and
purposeful availment. Sawtelle, 70 F.3d at 1394. When those
elements of specific personal jurisdiction are clearly
established, the gestalt factors rarely preclude jurisdiction.
Cambridge Literary, 295 F.3d at 66. On the other hand, when the
defendants' minimum contacts are weak or worse, the gestalt
factors may tip the balance against exercising jurisdiction.
Nowak v. Tak How Investments, LTD, 94 F.3d 708, 717 (1st Cir.
1996). The primary function of weighing the factors is to put
into "sharper perspective the reasonableness and fundamental
fairness of exercising jurisdiction." Foster-Miller, Inc., 46
F .3d at 150 .
Despite PFIP's protestations to the contrary, defending a
suit in New Hampshire would necessarily put some burden on the
defendants who are Florida corporations and an individual
20 resident of Florida.7 They do not do business in New Hampshire
or anywhere else outside of Florida, and the record does not
suggest that they have any other base of operations here. Cf.
Jet Wine, 298 F.3d at 11 (noting forum's distance from place of
defendant's incorporation but also that international company
should not expect to avoid United States courts). Nevertheless,
the defendants have not shown or even argued that defending a
suit in New Hampshire would place an unusual burden on them,
which is necessary for this factor to have constitutional
significance. See Sawtelle, 70 F.3d at 1395.
New Hampshire has an interest in having the dispute
adjudicated here because PFIP is a New Hampshire business. That
interest is not compelling, however, because nearly all of the
challenged activities occurred in Florida rather than New
Hampshire. See id. In addition, with respect to the breach of
contract claim, the parties' agreement provides that Florida law,
rather than New Hampshire law, governs. See Daynard, 2 90 F.3d at
62. Therefore, the forum state's minimal interest in the case
does not support jurisdiction.
7Ihe defendants failed to address the gestalt factors, optimistically assuming that their arguments with respect to relatedness and purposeful availment were sufficient to defeat jurisdiction. Despite this omission, the court will assess the reasonableness of exercising jurisdiction in this case.
21 As in most cases, it is undoubtedly more convenient for PFIP
to litigate its claims here. The plaintiff's choice of forum is
entitled to some deference. Sawtelle, 70 F.3d at 1395.
The fourth factor is the judicial system's interest in
obtaining the most effective resolution of the dispute between
the parties. "Usually this factor is a wash." Nowak, 94 F.3d at
718. When the exercise of jurisdiction would likely result in
having the dispute litigated in different places, however, this
factor counsels against doing so. Pritzker v. Yari, 41 F.3d 53,
64 (1st Cir. 1994). In this case, sufficient contacts between
the defendants and New Hampshire appear to support jurisdiction
only with respect to the copyright claims, leaving PFIP without a
remedy here for the other claims. Because the case in this forum
would not address all of PFIP's claims, the judicial system's
interest weighs against exercising jurisdiction.
The last gestalt factor reguires consideration of any
governmental interests in the substantive social policies
implicated by the litigation. New Hampshire has a policy
interest in protecting its businesses from unfair or infringing
practices of out-of-state actors and in providing a forum for
litigating such disputes. See, e.g., Nowak, 94 F.3d at 719.
Florida also has an interest in protecting its residents and
businesses. In addition, Florida has an interest in preventing
22 confusion among its residents and visitors to the state due to
copyright or trademark infringement or other unfair practices.
Therefore, the governmental interests appear to be evenly
balanced or to favor Florida.
On balance, the gestalt factors do not demonstrate that
exercising jurisdiction over the defendants here would be
constitutionally reasonable. Only the third factor, the
convenience of the forum for PFIP, favors jurisdiction here. The
other factors are either of no particular import or weigh against
exercising jurisdiction here. Therefore, the court concludes
that given the weak showing PFIP has made on the first two
elements, relatedness and purposeful availment, the gestalt
factors tip the balance against exercising jurisdiction in this
case.
C. Venue
Because personal jurisdiction over the defendants is lacking
in this case, the court will not consider that part of the
defendants' motion seeking to transfer the case to the Southern
District of Florida.
23 Conclusion
For the foregoing reasons, the defendants' motions to
dismiss (documents no. 6 and 12) are granted. The case is
dismissed for lack of personal jurisdiction, without prejudice.
The clerk of court shall enter judgment accordingly and close the
SO ORDERED.
Joseph A. DiClerico, Jr. United States District Judge
October 10, 2004
cc: Thomas J. Donovan, Esquire Theresa C. Tucker, Esquire