The opinion of the court was delivered by: Ambrose, Senior District Judge
OPINION and ORDER OF COURT
Plaintiff Grant Street Group ("GSG") has brought this patent infringement lawsuit against Defendants D&T Ventures, LLC ("D&T"), Pacific Blue Software, Inc. ("PBS"), and West Florida Business Systems, Inc. ("WFBS"), under 35 U.S.C. § 271 et seq. Plaintiff‟s claims arise from, inter alia, Defendants‟ alleged sale of and offering for sale products and services for conducting online tax lien certificate auctions. Pending before the Court is D&T‟s Motion to Dismiss the action for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). (Docket No. 77). After a careful review of the submissions by the parties and for the reasons discussed in this Opinion, D&T‟s Motion to Dismiss is granted.
Plaintiff GSG is a software development company headquartered in Pittsburgh, Pennsylvania. GSG is in the business of, inter alia, developing customized software applications used by government entities and financial institutions for Internet auctions of financial and legal instruments. (Complaint ¶ 1). GSG owns the fictitious name registration MuniAuction, Inc. Id. ¶ 7. On April 1, 2009, the United States Patent and Trademark Office assigned MuniAuction, Inc. United States Patent No. 7,523,063 entitled "Process and apparatus for conducting auctions over electronic networks" (the " "063 Patent"). Id. The "063 patent discloses "[a]n apparatus and process for conducting auctions, specifically municipal bond auctions, over electronic networks, particularly the Internet." Id.; see also id. Ex. A (Docket No 1-2).
Defendant D&T is a Minnesota limited liability company with its sole offices located in St. Cloud, Minnesota. Affidavit of Jeffrey Schulze ("Schulze Aff.") ¶ 2 (Docket No. 77-1). D&T, as it currently exists, came into existence in 2007 when it purchased the assets of a former entity also known as D&T Ventures, LLC. Id. D&T is a company that provides consulting, support, and technology solutions designed to support, among other things, auctions of delinquent tax certificates over the Internet. Id. ¶ 3. D&T offers these services to counties, cities, and other governmental agencies or entities. Id.
For its tax certificate auction clients, D&T consults and provides them with the necessary software to operate their electronic auctions. Id. ¶ 15. The software that D&T licenses that is used for internet auctions of tax certificates is licensed only to counties in the State of Florida. Id. ¶ 3. D&T will, if necessary, build its clients a website that will be owned and operated by the client. The county or governmental agency will manage the site, its contents, and those who may participate in any auction. Id. ¶ 15. D&T‟s role is to host the website and store or archive relevant information for the county or agency. The websites are hosted on computers located in Florida, and any support comes from D&T‟s Minnesota offices or onsite in Florida. Id. ¶ 16. The counties establish when the bidding will begin, when it will end, and when the auction for a certificate is awarded. Id. ¶ 18. The county directly receives the requisite bidder deposit money that is paid into that county‟s online tax sales site and, upon payment of the same, transfers the tax certificates to the winning bidders. Id. These functions are the responsibility of the county and its personnel and are not administered, managed or conducted by D&T. Id. D&T does not enter into contracts or sell to any bidders on behalf of the counties. Rather, the county is the entity that enters into agreements with the bidders, allows them access to specific sale information and sells the tax certificates. Declaration of Celeste Watford ("Watford Decl.")
¶ 5 (Docket No. 97-1); see also Supplemental Affidavit of Jeffery Schulze ("Supp. Schulze Aff.")
¶¶ 3-6 (Docket No. 97-2).
Between 2007 and 2010, D&T licensed and sold its software solutions to ten Florida counties to allow those counties to collect their delinquent taxes through the sale of tax certificates over the Internet. Schulze Aff. ¶ 20. During those years, there were a total of 2,678 bidders who registered for the tax certificate auctions with the counties. During the same timeframe, the counties collectively sold 59,626 tax certificates to those registered bidders. Id. ¶ 21. Of the tax certificates purchased through online auctions run by the counties, there were eleven bidders and four certificate purchasers from Pennsylvania. Id. ¶ 22; Schulze Supp. Aff. ¶ 19. Under their Web Services Agreements with D&T, the counties agreed to pay D&T $14.00 for each individual tax certificate sold using the tax auction website. See Docket No. 88-1 (Pl.‟s Resp. Opp., Ex. 1).
As part of its support services, D&T would send out routine communications regarding a county‟s tax sale. Communications also would go out to successful bidders. In addition D&T sent out an e-mail blast to all 2008 bidders regarding the dates on which the 2009 auctions would occur. Three out of 794 such communications in the e-mail blast were sent to Pennsylvania residents. Schulze Aff. ¶ 23; see also Docket 95-3 (Pl.‟s Resp. Opp., Ex. 4). Any communications sent by D&T were solely upon the request, and under the authority, of the counties and were incident to the tax certificate sale process. Watford Decl. ¶ 14.
On August 20th, 2010, Plaintiff filed a Complaint against WFBS, D&T, and PBS in this Court. (Docket No. 1). On October 19, 2010, Defendants WFBS and D&T filed a joint motion to dismiss for lack of personal jurisdiction. (Docket No. 10). On February 4, 2011, PBS filed a similar motion to dismiss. (Docket No. 54). On April 4, 2011, I issued an Order denying the motions to dismiss as premature on the merits and allowing all Defendants to refile motions to dismiss after a period of limited jurisdictional discovery. (Docket No. 71). On May 23, 2011, after jurisdictional discovery, D&T filed the instant Motion to Dismiss for Lack of Personal Jurisdiction, Memorandum in Support, and supporting documents. (Docket Nos. 77-78). On June 6, 2011, Plaintiff filed a Response in Opposition to D&T‟s Motion. (Docket No. 88, 95). On June 13, 2011, D&T filed a Reply Memorandum. (Docket No. 97). The motion is now ripe for my review.
D&T argues GSG‟s Complaint against it must be dismissed under rule 12(b)(2) because this Court lacks personal jurisdiction over D&T. For the reasons set forth below, I agree that there ...