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MOLNLYCKE HEALTH CR AB v. DUMEX MED. SRGICL

September 7, 1999

MOLNLYCKE HEALTH CARE AB, PLAINTIFF,
v.
DUMEX MEDICAL SURGICAL PRODUCTS LTD., DEFENDANT.



The opinion of the court was delivered by: Katz, Senior District Judge.

MEMORANDUM & ORDER

Plaintiff Molnlycke Health Care AB brings this patent infringement claim against defendant Dumex Medical Surgical Products Limited. Molnlycke is a Swedish corporation with its principal place of business in Sweden, but it has a wholly owned subsidiary in Eddystone, Pennsylvania. Dumex is a Canadian corporation with its principal place of business in Canada. Plaintiff alleges that it owns a patent pertaining to wound care products and that defendant has infringed on that patent by advertising, selling, and distributing a similar product in the United States. Defendant's present motion requests dismissal for lack of personal jurisdiction, improper venue, and/or failure to state a claim upon which relief can be granted.*fn1

1. Personal Jurisdiction

Defendant argues that it is not subject to general personal jurisdiction in this district because it has not conducted continuous and substantial business in Pennsylvania. Dumex also argues that there is no specific jurisdiction because it has no "minimum contacts" with this state. In support of these claims, Dumex explains that it does not have a regular place of business in Pennsylvania and that less than one percent of its sales occurred in Pennsylvania. Dumex also states that it has never sold the allegedly infringing product in Pennsylvania. See Def. Ex. A ¶¶ 2-4 (Aff. of Bill Goodwin).

A federal court may exercise personal jurisdiction over a non-resident defendant to the extent permitted under state law, see Fed.R.Civ.P. 4(e), and Pennsylvania authorizes long-arm jurisdiction to the extent permitted by the due process clause. See 42 Pa.C.S. § 5322(b). Once jurisdiction has been challenged, the plaintiff "bears the burden of establishing either that the cause of action arose from the defendant's forum-related activities (specific jurisdiction) or that the defendant has `continuous and systematic' contacts with the forum state (general jurisdiction)." Mellon Bank (East) v. DiVeronica Bros., 983 F.2d 551, 554 (3d Cir. 1993) (citations omitted). The plaintiff may meet this burden and present a prima facie case for exercising personal jurisdiction by "establishing with reasonable particularity sufficient contacts between the defendant and the forum state." Mellon Bank (East) PSFS v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992), quoting Provident Nat'l Bank v. California Fed. S & L Ass'n, 819 F.2d 434 (3d Cir. 1987).

Plaintiff does not argue that this court has specific jurisdiction and relies exclusively on a claim of general jurisdiction. Pennsylvania law permits the exercise of general jurisdiction over a corporate defendant when the corporation carries on "a continuous and systematic part of its general business within this Commonwealth." 42 Pa.C.S. § 5301(a)(2)(iii). Unlike specific jurisdiction, general jurisdiction is premised on a defendant's relationship with the forum rather than on particular contacts with the plaintiff. "General jurisdiction permits a court to exercise personal jurisdiction over a nonresident defendant when `that party can be called to answer any claim against her, regardless of whether the subject matter of the cause of action has any connection to the forum.'" Barrett v. Catacombs Press, 44 F. Supp.2d 717, 723 (E.D.Pa. 1999), quoting Farino, 960 F.2d at 1221.

To exercise general jurisdiction, a plaintiff must show that a defendant "has maintained `continuous and substantial forum affiliations." Reliance Steel Prods: v. Watson, Ess, Marshall & Enggas, 675 F.2d 587, 589 (3d Cir. 1982); quoting International Shoe v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); see also Helicopteros Nacionales v. Hall, 466 U.S. 408, 414-16, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) (same). These affiliations are construed in light of the due process clause,*fn2 which permits the court to exercise jurisdiction only if doing so would not "offend traditional notions of fair play and substantial justice." International Shoe, 326 U.S. at 316, 66 S.Ct. 154 (citations, internal punctuation omitted). That is, a defendant must "reasonably anticipate being haled into court[.]" World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). A "plaintiff must show significantly more than mere minimum contacts to establish general jurisdiction." Provident Nat'l Bank, 819 F.2d at 437; see also Reliance Steel Prods., 675 F.2d at 588-89 (same); Modern Mailers, 844 F. Supp. at 1053 (same). When evaluating a corporation's ties to a state for purposes of general jurisdiction, a court should not necessarily focus on the percentage of income that a corporation derives from those affiliations; rather, the court should look to the party's "purposeful and extensive availment" of a forum. Provident Nat'l Bank, 819 F.2d at 437. A court should also consider the degree to which a corporation's contacts with a given forum are "central to the conduct of its business." Id. at 438.

The growing case law in this Circuit's districts addressing the relationship between personal jurisdiction and internet sites has established a "sliding scale" of jurisdiction based largely on the degree and type of interactivity on the website in question:

  [T]he likelihood that personal jurisdiction can be
  constitutionally exercised is directly proportionate to the
  nature and quality of commercial activity that an entity
  conducts over the Internet . . . . At one end of the spectrum
  are situations where a defendant clearly does business over the
  Internet. If the defendant enters into contracts with residents
  of a foreign jurisdiction that involve the knowing and repeated
  transmission of computer files over the Internet personal
  jurisdiction is proper. At the opposite end are situations
  where a defendant has simply posted information on an Internet
  Web site which is accessible to users in foreign jurisdictions.
  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. The middle ground is
  occupied by interactive Web sites where a user can exchange
  information with the host computer. In these cases, the
  exercise of jurisdiction is determined by examining the level
  of interactivity and commercial nature of the exchange of
  information that occurs on the Web site.

Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D.Pa. 1997); see also Barrett, 44 F. Supp.2d at 724-26 (looking to same framework), Blackburn v. Walker Oriental Rug Galleries, Inc., 999 F. Supp. 636, 638 (E.D.Pa. 1998) (same); Desktop Tech., Inc. v. Colorworks Reprod. & Design, Inc., Civ. A. No. 98-5029, 1999 WL 98572, at *3 (E.D.Pa. Feb. 25, 1999) (same). While plaintiff correctly acknowledges that most of the cases applying this framework have looked to specific jurisdiction, the court agrees that it may also properly be used in cases asserting general jurisdiction. See Desktop Tech., 1999 WL 98572 at *2-4.

The court, however, disagrees with plaintiff's more fundamental premise and holds that the establishment of a website through which customers can order products does not, on its own, suffice to establish general jurisdiction. To hold that the possibility of ordering products from a website establishes general jurisdiction would effectively hold that any corporation with such a website is subject to general jurisdiction in every state. The court is not willing to take such a step.

While the court acknowledges that new technology will necessarily have an effect on many aspects of the law, it is untenable to suggest that all prior jurisprudence is irrelevant to the internet. The Third Circuit and its district courts have typically required a very high showing before exercising general jurisdiction, and the court sees no reason for the internet to change this approach. For example, in Gehling v. St. George's School of Medicine, Ltd., 773 F.2d 539, 542 (3d Cir. 1985), the Third Circuit held that general jurisdiction was improper over a defendant school that advertised in two national newspapers that had substantial circulation in Pennsylvania, received approximately six percent of its students from Pennsylvania, staged a media campaign that included appearances on Philadelphia radio and television shows, and entered into a long-term arrangement with a school in Pennsylvania. See id. at 542-43. The Third Circuit emphasized that there was no evidence that Pennsylvania students were particularly solicited or that Pennsylvania itself was a focus of this wide-ranging promotional effort. See id. at 543. This case and other similar decisions suggest that an advertising or other business campaign aimed at selling a particular item, whether that be a medical school education or a more tangible product, cannot be deemed to be purposefully directed at Pennsylvania even if some Pennsylvania residents respond to that campaign. See id.; Modern Mailers, Inc., 844 F. Supp. at 1054 (rejecting general jurisdiction based on generalized advertising campaign; noting other cases so holding). The court believes that Dumex's websites are akin to such a general advertising campaign; while the websites are available in every state, they are not necessarily targeted towards every state. Plaintiff has made no showing that defendant's websites targeted Pennsylvania. Cf. Weintraub v. Walt Disney World, 825 F. Supp. 717, 721 (E.D.Pa. 1993) (finding general jurisdiction because of extensive contacts through a regional advertising campaign and efforts directed specifically at Pennsylvania customers); Gavigan v. Walt Disney World, 646 F. Supp. 786, 787-789 (E.D.Pa. 1986) (finding that prolonged, targeted advertising campaign and presence in Pennsylvania justified general jurisdiction).*fn3

The plaintiff has also failed to demonstrate that the websites are "central" to the defendant's business. Molnlycke correctly asserts that even a small percentage of income deriving from a particular state may be sufficient to impose general jurisdiction, but the cases so holding focus on the degree to which the business in question is essential to the defendant. In this case, there is no indication that Pennsylvania is an essential part of the conduct of Dumex's business. Defendant has attested that it has no regular place of business in Pennsylvania and has sold less than one percent of all its product line in this state. SeeDef. Ex. A ¶¶ 2-4. Without some other indication of the "quality and nature" of the business with Pennsylvania, it is impossible for the court to find that the small percentage of sales constitute "continuous and systematic business within the forum state." Modern Mailers, 844 F. Supp. at 1053, see also Surgical Laser Tech., Inc. v. C.R. Bard, Inc., 921 F. Supp. 281, 284 (E.D.Pa. 1996) (holding that visits to Pennsylvania, a contract leading to sales in Pennsylvania, some employee presence in Pennsylvania, taxes paid in Pennsylvania, and clinical trials in Pennsylvania were insufficient to ...


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