United States District Court,
S.D. New York.
BENSUSAN RESTAURANT CORPORATION, Plaintiff,
v.
Richard B. KING, individually and d/b/a The Blue Note, Defendant.
No. 96 Civ. 3992 (SHS).
Sept. 9, 1996.
Operator of New York jazz club brought action
against operator of Missouri club, alleging that defendant infringed his
"The Blue Note" trademark. On
defendant's motion to dismiss for lack of personal jurisdiction, the District
Court, Stein, J., held that: (1)
creation of World Wide Web site in Missouri with telephone number permitting
user to order tickets to allegedly infringing jazz club was not offer to sell
product in New York for purposes of "tortious act" provision of New
York's long-arm statute; (2) existence of World Wide Web site did not support
exercise of personal jurisdiction under provision of long-arm statute
permitting exercise of personal jurisdiction over nondomiciliary who reasonably
expects tortious act to have consequences in New York and derives substantial
revenue from interstate or international
commerce; and (3) even if exercise of
personal jurisdiction over defendant was proper under long-arm statute,
assertion of personal jurisdiction would violate due process.
Motion granted.
West Headnotes
[1] Federal Civil Procedure 
1825
Prior to
evidentiary hearing or discovery, motion to dismiss complaint for lack of
personal jurisdiction may be defeated merely by making prima facie showing of
jurisdiction. Fed.Rules
Civ.Proc.Rule 12(b)(2), 28 U.S.C.A.
[2] Federal Civil Procedure 1829
[2] Federal
Civil Procedure 1833
On motion
to dismiss for lack of personal jurisdiction, plaintiff is entitled to have its complaint and affidavits
interpreted, and doubts resolved, in light most favorable to it. Fed.Rules
Civ.Proc.Rule 12(b)(2), 28 U.S.C.A.
[3] Federal Courts 96
Plaintiff's
burden of making prima facie showing of personal jurisdiction is satisfied even
when moving party makes contrary allegations that place in dispute factual
basis in plaintiff's prima facie case. Fed.Rules
Civ.Proc.Rule 12(b)(2), 28 U.S.C.A.
[4] Federal Courts 96
Where
discovery is not commenced on issue of personal jurisdiction, plaintiff is
entitled to rely on mere factual allegations to make its prima facie showing of
jurisdiction. Fed.Rules
Civ.Proc.Rule 12(b)(2), 28 U.S.C.A.
[5] Federal Civil Procedure 1832
[5] Federal Civil Procedure 2533.1
Matters
outside pleadings may be considered in resolving motion to dismiss for lack of
personal jurisdiction without converting it into one for summary judgment. Fed.Rules
Civ.Proc.Rule 12(b)(2), 28 U.S.C.A.
[6] Trademarks 1560
(Formerly 382k545 Trade Regulation)
Creation
of World Wide Web site in Missouri with telephone number permitting user to
order tickets to allegedly infringing jazz club was not offer to sell product
in New York for purposes of "tortious act" provision of New York's
long-arm statute in trademark infringement action; although user gained information on allegedly
infringing club by accessing Web site, there was no allegation that any
infringing goods were shipped to New York or that any other infringing activity
was directed at New York. N.Y.McKinney's
CPLR 302(a), par. 2.
[7] Federal Courts 76.25
[7] Trademarks
1560
(Formerly 382k545 Trade Regulation)
Existence
of World Wide Web site containing telephone number for jazz club in Missouri
with allegedly infringing name did not support exercise of personal
jurisdiction in New York over club's operator under provision of New York's
long-arm statute permitting exercise of personal jurisdiction over
non-domiciliary who reasonably expects tortious act to have consequences in New
York and derives substantial revenue from interstate or international
commerce; operator of Missouri club did
not derive substantial revenue from interstate of international commerce. N.Y.McKinney's
CPLR 302(a), par. 3(ii).
[8] Courts 12(2.1)
Mere
foreseeability of in-state consequence and failure to avert that consequence is
not sufficient to establish personal jurisdiction under New York's long-arm statute. N.Y.McKinney's
CPLR 302(a), par. 3(ii).
[9] Constitutional Law 3965(8)
(Formerly 92k305(5))
[9] Federal
Courts 76.5
[9] Trademarks
1560
(Formerly 382k545 Trade Regulation)
Even if
exercise of personal jurisdiction over Missouri operator of allegedly
infringing jazz club was proper under New York's long-arm statute, based on
operator's maintenance of World Wide Web site, assertion of personal
jurisdiction over operator in New York would violate due process; operator had done nothing to purposely avail
himself of benefits of New York, and instead simply created a Web site and
permitted anyone who could find it to access it. U.S.C.A.
Const.Amend. 14.
[10] Federal
Courts 76.10
Creating a
World Wide Web site, like placing product into stream of commerce, may be felt
nationwide, or even worldwide, but, without more, it is not act purposely
directed toward forum state for purposes of exercising personal
jurisdiction. U.S.C.A.
Const.Amend. 14.
*297 Dorothy
M. Weber, Shukat, Arrow Hafert & Weber,
L.L.P., New York City, for plaintiff.
Robert
A. Bourque, Simpson Thacher & Bartlett, New
York City, for defendant.
OPINION AND ORDER
STEIN, District Judge.
Plaintiff Bensusan Restaurant Corp.
("Bensusan") brought this action against defendant Richard King,
individually and doing business as The Blue Note, alleging that King is
infringing on Bensusan's rights in its trademark "The Blue
Note." King has moved to dismiss
the complaint for lack of personal jurisdiction pursuant to Fed.R.Civ.P.
12(b)(2).
The issue raised by that motion is
whether the existence of a "site" on the World Wide Web of the
Internet, without anything more, is sufficient to vest this Court with personal
jurisdiction over defendant pursuant to New York's long-arm statute and the Due
Process Clause of the United States Constitution. For the reasons that follow, the motion to
dismiss the complaint is granted.
I. BACKGROUND
Bensusan, a New York corporation, is the
creator of a jazz club in New York City known as "The Blue
Note." It also operates other jazz
clubs around the world. Bensusan owns
all rights, title and interest in and to the federally registered mark
"The Blue Note." (Complaint, ¶
¶ 1, 5.) King is an individual who lives in Columbia,
Missouri and he owns and operates a "small club" in that city which
is also called "The Blue Note."
(Complaint, ¶
¶ 2, 6.)
In April of 1996, King posted a
"site" on the World Wide Web of the Internet to promote his club. [FN1] This Web site, which is located on a computer
server in Missouri, allegedly contains "a fanciful logo which is
substantially similar to the logo utilized by [Bensusan]." (Complaint, ¶
11.) The Web site is a general
access site, which means that it requires no authentication or access code for
entry, and is accessible to anyone around the world who has access to the
Internet. (Meltzer Aff., ¶ 2.) It contains general information about the
club in Missouri as well as a calendar of events and ticketing
information. (Id., ¶ ¶ 2-3;
Exhs. A & B.) The ticketing information includes the names and addresses of
ticket outlets in Columbia and a telephone number for charge-by-phone ticket
orders, which are available for pick-up on the night of the show at the Blue
Note box office in Columbia. (Id., Exh. B.)
FN1. In MTV
Networks v. Curry,
867 F.Supp. 202 (S.D.N.Y.1994), Judge McKenna of
this court described the Internet as follows:
The Internet is the world's largest computer network (a
network consisting of two or more computers linked together to share electronic
mail and files). The Internet is
actually a network of thousands of independent networks, containing several
million "host" computers that provide information services. An estimated 25 million individuals have
some form of Internet access, and this audience is doubling each year. The Internet is a cooperative venture, owned
by no one, but regulated by several volunteer agencies.
Id.
at 203 n. 1 (citations omitted). A
"site" is an Internet address which permits users to exchange digital
information with a particular host, see id. at 203 n. 2, and the World
Wide Web refers to the collection of sites available on the Internet, see Shea
v. Reno,
930 F.Supp. 916, 929 (1996). See also American
Civil Liberties Union v. Reno,
929 F.Supp. 824 (E.D.Pa.1996)); Religious
Technology Ctr. v. Netcom On-Line Communication Servs., Inc.,
923 F.Supp. 1231, 1238 n. 1 (1995).
At the time this action was brought, the first
page of the Web site contained the following disclaimer: "The Blue Note's Cyberspot should not be
confused with one of the world's finest jazz club[s] [the] Blue *298
Note, located in the heart of New York's Greenwich Village. If you should find yourself in the big apple
give them a visit." (Complaint,
¶ 9.)
Furthermore, the reference to Bensusan's club in the disclaimer
contained a "hyperlink" [FN2] which
permits Internet users to connect directly to Bensusan's Web site by
"clicking" on the link. (Id.
at ¶ 10.) After Bensusan objected to the Web site,
King dropped the sentence "If you should find yourself in the big apple
give them a visit" from the disclaimer and removed the hyperlink. (King Aff., ¶
14.)
FN2. A
"hyperlink" is "highlighted text or images that, when selected
by the user, permit him to view another, related Web document." Shea,
930 F.Supp. at 929. With these links "a user can move
seamlessly between documents, regardless of their location; when a user viewing the document located on
one server selects a link to a document located elsewhere, the browser will
automatically contact the second server and display the document."
Id.
Bensusan brought this action asserting claims
for trademark infringement, trademark dilution and unfair competition. King has now moved to dismiss the action for
lack of personal jurisdiction pursuant to Fed.R.Civ.P.
12(b)(2).
II. DISCUSSION
[1] At this stage of the litigation--prior to an evidentiary
hearing or discovery--Bensusan may defeat a motion to dismiss the complaint for
lack of personal jurisdiction by making merely a prima facie showing of
jurisdiction. See A.I.
Trade Finance, Inc. v. Petra Bank,
989 F.2d 76, 79-80 (2d Cir.1993); Hoffritz
for Cutlery, Inc. v. Amajac, Ltd.,
763 F.2d 55, 57 (2d Cir.1985); Rothschild
v. Paramount Distillers, Inc.,
923 F.Supp. 433, 435 (S.D.N.Y.1996); PI,
Inc. v. Quality Prods., Inc.,
907 F.Supp. 752, 758 (S.D.N.Y.1995); Dave
Guardala Mouthpieces, Inc. v. Sugal Mouthpieces, Inc.,
779 F.Supp. 335, 336-37 (S.D.N.Y.1991).
[2][3] In that regard, Bensusan is entitled to have its complaint
and affidavits interpreted, and any doubts resolved, in the light most
favorable to it. See Landoil
Resources Corp. v. Alexander & Alexander Servs., Inc.,
918 F.2d 1039, 1043 (2d Cir.1991); Hoffritz
for Cutlery,
763 F.2d at 57; Linzer
v. EMI Blackwood Music, Inc.,
904 F.Supp. 207, 211 (S.D.N.Y.1995); Editorial
Musical Latino Americana, S.A. v. Mar Int'l Records, Inc.,
829 F.Supp.
62, 64 (S.D.N.Y.1993). This burden is satisfied even when the
moving party makes contrary allegations that place in dispute the factual basis
of plaintiff's prima facie case.
See A.I.
Trade Finance,
989 F.2d at 79-80; Marine
Midland Bank, N.A. v. Miller,
664 F.2d 899, 904 (2d Cir.1981); Lancaster
v. Zufle,
165 F.R.D. 38, 40 (S.D.N.Y.1996); National
Cathode Corp. v. Mexus Co.,
855 F.Supp. 644, 646 (S.D.N.Y.1994).
[4][5] Furthermore, where, as in this case, discovery has not
commenced on this issue or any other, plaintiff is entitled to rely on mere
factual allegations to make its prima facie showing of
jurisdiction. See Ball
v. Metallurgie Hoboken-Overpelt, S.A.,
902 F.2d 194, 197 (2d Cir.), cert. denied,
498
U.S. 854, 111 S.Ct. 150, 112 L.Ed.2d 116 (1990); Rothschild,
923 F.Supp. at 436; Executive
Telecard, Ltd. v. Engelman,
No. 95 Civ. 9505, 1996 WL 191967, at *2 (S.D.N.Y. Apr. 19, 1996); Pilates,
Inc. v. Pilates Inst., Inc.,
891 F.Supp. 175, 177 (S.D.N.Y.1995); Palmieri
v. Estefan,
793 F.Supp. 1182, 1186 (S.D.N.Y.1992); Kinetic
Instruments, Inc. v. Lares,
802 F.Supp. 976, 981 (S.D.N.Y.1992). Matters outside the pleadings, however, may
also be considered in resolving a motion to dismiss for lack of personal
jurisdiction pursuant to Fed.R.Civ.P.
12(b)(2) without converting it into one for
summary judgment. See Visual
Sciences, Inc. v. Integrated Communications, Inc.,
660 F.2d 56, 58 (2d Cir.1981); Rothschild,
923 F.Supp. at 436; John
Hancock Property and Casualty Ins. Co. v. Universale Reinsurance
Co., Ltd.,
No. 91 Civ. 3644, 1992 WL 26765, at *6 (S.D.N.Y. Feb. 5, 1992).
Knowing that personal jurisdiction over a
defendant is measured by the law of the jurisdiction in which the federal court
sits, see Rothschild,
923 F.Supp. at 436 (citing Pilates,
891 F.Supp. at 179), Editorial
Musical Latino Americana,
829 F.Supp. at 64, Bensusan relies on
subdivisions (a)(2) and (a)(3)(ii) of N.Y.C.P.L.R.
§ 302, New
York's long-arm statute, to support its position that personal jurisdiction
exists over King in this action. Each
provision will be addressed in turn.
*299 A. C.P.L.R.
§ 302(A)(2)
[6] C.P.L.R.
§ 302(a)(2)
permits a court to exercise personal jurisdiction over any non-domiciliary who
"commits a tortious act within the state" as long as the cause of
action asserted arises from the tortious act. See Pilates,
891 F.Supp. at 180; Exovir,
Inc. v. Mandel,
No. 94 Civ. 3546, 1995 WL 413256, at *6 (S.D.N.Y. July 12, 1995); Dave
Guardala Mouthpieces,
779 F.Supp. at 337; Business
Trends Analysts v. Freedonia Group, Inc.,
650 F.Supp. 1452, 1456 (S.D.N.Y.1987).
In Vanity
Fair Mills, Inc. v. T. Eaton Co.,
234 F.2d 633, 639 (2d Cir.), cert. denied,
352
U.S. 871, 77 S.Ct. 96, 1 L.Ed.2d 76 (1956), the
United States Court of Appeals for the Second Circuit held that trademark
infringement occurs "where the passing off occurs, i.e., where the
deceived customer buys the defendant's
product in the belief that he is buying the plaintiff's." Under this
standard, courts have found that an offering for sale of even one copy of an
infringing product in New York, even if no sale results, is sufficient to vest
a court with jurisdiction over the alleged infringer. See Editorial
Musical Latino Americana,
829 F.Supp. at 64-65; German
Educational Television Network, Ltd. v. Oregon Public Broadcasting Co.,
569 F.Supp. 1529 (S.D.N.Y.1983); Hertz
Sys., Inc. v. Hervis Corp.,
549 F.Supp. 796, 797-98 (S.D.N.Y.1982); Honda
Assocs., Inc. v. Nozawa Trading Inc.,
374 F.Supp. 886 (S.D.N.Y.1974). Accordingly, the issue that arises in this
action is whether the creation of a Web site, which exists either in Missouri
or in cyberspace--i.e., anywhere the Internet exists--with a telephone
number to order the allegedly infringing product, is an offer to sell the
product in New York.
Even after construing all allegations in the
light most favorable to Bensusan, its allegations are insufficient to support a
finding of long-arm jurisdiction over plaintiff. A New York resident with Internet access and
either knowledge of King's Web site location or a "search engine"
capable of finding it could gain access to the Web site and view information
concerning the Blue Note in Missouri.
It takes several affirmative steps by the New
York resident, however, to obtain access to the Web site and utilize the
information there. First, the New York resident has to access the Web site
using his or her computer hardware and software. See Shea,
930 F.Supp. at 930. Then, if the user wished to attend a show in
defendant's club, he or she would have to telephone the box office in Missouri
and reserve tickets. Finally, that user
would need to pick up the tickets in Missouri because King does not mail or
otherwise transmit tickets to the user.
Even assuming that the user was confused about the relationship of the
Missouri club to the one in New York, such an act of infringement would have
occurred in Missouri, not New York. The
mere fact that a person can gain information on the allegedly infringing
product is not the equivalent of a person advertising, promoting, selling or
otherwise making an effort to target its product in New York. See Hertz,
549 F.Supp. at 797. Here, there is simply no allegation or proof
that any infringing goods were shipped into New York or that any other
infringing activity was directed at New York or caused by King to occur
here. Cf. People
v. Concert Connection, Ltd.,
211 A.D.2d 310, 314, 629 N.Y.S.2d 254, 257 (2d Dep't.1995), appeal dismissed, 86
N.Y.2d 837, 634 N.Y.S.2d 445, 658 N.E.2d 223 (1995)
(Table).
Accordingly, C.P.L.R.
§ 302(a)(2)
does not authorize this Court to exercise jurisdiction over King.
[7] Bensusan also contends that personal jurisdiction is
established pursuant to C.P.L.R.
§ 302(a)(3)(ii), which permits a court to exercise personal jurisdiction
over any non-domiciliary for tortious acts committed outside the state that
cause injury in the state if the non-domiciliary "expects or should
reasonably expect the act to have consequences in the state and derives
substantial revenue from interstate or international commerce." See American
Eutectic Welding Alloys Sales Co. v. Dytron Alloys Corp.,
439 F.2d 428, 432-35 (2d Cir.1971); In
re Houbigant Inc.,
914 F.Supp. 964, 979 (S.D.N.Y.1995); *300Time
Prods., Plc. v. J. Tiras Classic Handbags, Inc.,
No. 93 Civ. 7856, 1994 WL 363930, at *7 (S.D.N.Y. July 13, 1994); Car-Freshner
Corp. v. Broadway Mfg. Co.,
337 F.Supp. 618, 619 (S.D.N.Y.1971); see also Sybron
Corp. v. Wetzel,
46 N.Y.2d 197, 204-05, 413 N.Y.S.2d 127, 130- 31, 385 N.E.2d 1055, 1057-59
(1978).
As an initial matter, Bensusan does not allege
that King derives substantial revenue from interstate or international
commerce. Instead, it relies on
arguments that King participates in interstate commerce by hiring and
showcasing bands of national stature. Section
302(a)(3)(ii), however, explicitly states that
substantial "revenue" is required from interstate commerce, not mere
participation in it. King has submitted
an affidavit stating that 99% of his patronage and revenue is derived from
local residents of Columbia, Missouri (primarily students from the University
of Missouri) and that most of the few out-of-state customers have either an
existing or a prior connection to the area,
such as graduates of the University of Missouri. (King Decl. ¶ ¶ 4, 8.)
Moreover, Bensusan's allegations of
foreseeability, which are based solely on the fact that King knew that
Bensusan's club is located in New York, is insufficient to satisfy the
requirement that a defendant "expects or should reasonably expect the act
to have consequences in the state."
That prong of the statute requires that a defendant make "a
discernable effort ... to serve, directly or indirectly, a market in the forum
state." Darienzo
v. Wise Shoe Stores, Inc.,
74 A.D.2d 342, 346, 427 N.Y.S.2d 831, 834 (2d Dep't.1980).
Finally, Bensusan's conclusory allegation of a
loss in New York is nothing more that an allegation of an "indirect
financial loss resulting from the fact that the injured person resides or is
domiciled in New York," which is not the allegation of a "significant
economic injury" required by section
302(a)(3).
See ICC
Primex Plastics Corp. v. LA/ES Laminati Estrusi Termoplastici S.P.A.,
775 F.Supp. 650, 656 (S.D.N.Y.1991); Arbitron
Co. v. E.W. Scripps, Inc.,
559 F.Supp. 400, 404 (S.D.N.Y.1983); Fantis
Foods, Inc. v. Standard Importing Co.,
49 N.Y.2d 317, 326-27, 425 N.Y.S.2d 783, 787, 402 N.E.2d 122, 125 (1980); Sybron,
46 N.Y.2d at 205, 413 N.Y.S.2d at 131, 385 N.E.2d at 1058.
Accordingly, C.P.L.R.
§ 302(a)(3)
does not authorize this Court to exercise jurisdiction over King.
[8] Bensusan's primary
argument in support of both statutory bases for personal jurisdiction is that,
because defendant's Web site is accessible in New York, defendant could have
foreseen that the site was able to be viewed in New York and taken steps to
restrict access to his site only to users in a certain geographic region,
presumably Missouri. Regardless of the
technical feasibility of such a procedure, see Shea,
930 F.Supp. at 929-30, 933-34, mere
foreseeability of an in-state consequence and a failure to avert that
consequence is not sufficient to establish personal jurisdiction. See Fox
v. Boucher,
794 F.2d 34, 37 (2d Cir.1986); Taurus
Int'l Inc. v. Titan Wheel Int'l Inc.,
892 F.Supp. 79, 82 (S.D.N.Y.1995).
C. Due Process
[9] Furthermore, even if jurisdiction were proper under New
York's long arm statute, asserting personal jurisdiction over King in this
forum would violate the Due Process Clause of the United States
Constitution. See, e.g., Burger
King Corp. v. Rudzewicz,
471 U.S. 462, 475-76, 105 S.Ct. 2174, 2183- 84, 85 L.Ed.2d 528 (1985); World-Wide
Volkswagen Corp. v. Woodson,
444 U.S. 286, 292, 100 S.Ct. 559, 564, 62 L.Ed.2d 490 (1980); see also
Richard S. Zembek, Comment, Jurisdiction
and the Internet: Fundamental Fairness
in the Networked World of Cyperspace,
6 Alb.L.J.Sci. & Tech. 339, 367-80 (1996). Due process requires "that the
non-resident defendant has purposefully established 'minimum contact' with the
forum state such that the 'maintenance of the suit does not offend "traditional notions of
fair play and substantial justice." ' " Darby
v. Compagnie Nationale Air France,
769 F.Supp. 1255, 1262 (S.D.N.Y.1991) (quoting International
Shoe Co. v. Washington,
326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945)).
The following factors are relevant to this
determination: "(1) whether the
defendant purposefully availed himself of the benefits of the forum state; (2) whether the defendant's conduct and
connection with the forum state *301 are such that he should reasonably
anticipate being haled into court there;
and (3) whether the defendant carries on a continuous and systematic
part of its general business within the forum state." Independent
Nat'l Distributors, Inc. v. Black Rain Communications, Inc.,
No. 94 Civ. 8464, 1995 WL 571449, at * 5-6 (S.D.N.Y. Sept. 28, 1995).
[10] As set forth above, King has done nothing to purposefully
avail himself of the benefits of New York.
King, like numerous others, simply created a Web site and permitted
anyone who could find it to access it. Creating a site, like placing a product
into the stream of commerce, may be felt nationwide--or even worldwide--but,
without more, it is not an act purposefully directed toward the forum state. See Asahi
Metal Indus. Co. v. Superior Court,
480 U.S. 102, 112, 107 S.Ct. 1026, 1032, 94 L.Ed.2d 92 (1992) (plurality opinion).
There are no allegations that King actively sought to encourage New
Yorkers to access his site, or that he conducted any business--let alone a continuous and systematic
part of its business--in New York.
There is in fact no suggestion that King has any presence of any kind in
New York other than the Web site that can be accessed worldwide. Bensusan's argument that King should have
foreseen that users could access the site in New York and be confused as to the
relationship of the two Blue Note clubs is insufficient to satisfy due
process. See Fox,
794 F.2d at 37;
Beckett
v. Prudential Ins. Co. of Am.,
893 F.Supp. 234, 239 (S.D.N.Y.1995).
Although CompuServe
Inc. v. Patterson,
89 F.3d 1257 (6th Cir.1996), a recent decision of
the United States Court of Appeals for the Sixth Circuit, reached a different
result, it was based on vastly different facts. In that case, the Sixth Circuit found
personal jurisdiction proper in Ohio over an Internet user from Texas who
subscribed to a network service based in Ohio. The user, however, specifically
targeted Ohio by subscribing to the service and entering into a separate
agreement with the service to sell his software over the Internet. Furthermore, he advertised his software
through the service and repeatedly sent his software to the service in
Ohio. Id.
at 1264-65.
This led that court to conclude that the Internet user "reached
out" from Texas to Ohio and "originated and maintained" contacts
with Ohio. Id.
at 1266. [FN3] This action, on the
other hand, contains no allegations that King in any way directed any contact
to, or had any contact with, New York or intended to avail itself of any of New
York's benefits.
FN3. In CompuServe, the Sixth Circuit explicitly wrote
that it was not addressing the issue of whether the Internet user "would
be subject to suit in any state where his software was purchased or used
..." CompuServe,
89 F.3d at 1268.
Accordingly, the exercise of personal
jurisdiction over King in this case would violate the protections of the Due
Process Clause.
III. CONCLUSION
For the reasons set forth above, defendant's
motion to dismiss the complaint pursuant to Fed.R.Civ.P.
12(b)(2) for lack of personal jurisdiction is
granted and the complaint is dismissed.
SO ORDERED.
937 F.Supp. 295, 65 USLW 2207, 40 U.S.P.Q.2d
1519
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