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Aardvark Event Logistics, Inc. v. Bobcar Media, LLC

United States District Court, E.D. Pennsylvania

January 5, 2017



          O'NEILL, J.

         Plaintiff Aardvark Event Logistics, Inc. filed suit against three New York citizens- Bobcar Media LLC, Bobcar's intellectual property counsel Morris E. Cohen and Attorney Cohen's firm Goldberg Cohen LLP-alleging that these defendants intentionally disparaged plaintiff in an effort to gain a competitive advantage over plaintiff and interfere with its existing and prospective business relations. Defendants have now moved to dismiss the complaint on the grounds of personal jurisdiction. For the following reasons, I will grant the motion and dismiss the complaint.


         According to the facts set forth in plaintiff's complaint, [1] plaintiff Aardvark Event Logistics, Inc., a corporation organized and with its principal place of business in Pennsylvania, is a leading experiential and event mobile marketing firm that provides custom-tailored, built-to-order promotional vehicles for mobile tours, trade shows and a wide variety of other event marketing programs. Compl. ¶¶ 7, 13. Defendant Bobcar Media, LLC, a limited liability company organized and with its principal place of business in New York, is Aardvark's direct competitor in the mobile and experiential marketing space. Id. ¶¶ 8, 14. Defendant Goldberg Cohen LLP (GC), a limited liability partnership organized in and with its principal place of business in New York, is a law firm that serves as litigation counsel to Bobcar. Id. ¶¶ 9, 15. Defendant Morris Cohen, a New York citizen, is an attorney practicing in the state of New York with the GC law firm. Id. ¶ 10.

         On February 4, 2016, Bobcar-through GC and Cohen-filed a complaint in the United States District Court for the Southern District of New York alleging that Aardvark infringed Bobcar's patents and trade dress (the New York Action). Id. ¶ 16. In response to a motion to dismiss, Bobcar filed two amended complaints, the second of which was docketed on April 20, 2016. Id. ¶¶ 18-19. On May 11, 2016, Aardvark moved to dismiss Bobcar's second amended complaint and, to date, the state court has not decided that motion. Id. ¶ 20.

         Shortly after the New York Action commenced, defendants purportedly constructed a scheme to malign Aardvark's reputation within the business community and disrupt Aardvark's current and future business relationships with clients. Id. ¶¶ 21, 22. On May 2, 2016, Bobcar, through GC and Cohen, wrote a letter to the California offices of Samsung Electronics-a client for whom Aardvark is currently providing mobile marketing services-advising Samsung that Bobcar filed a lawsuit against Aardvark's allegedly infringing activities and apparently seeking to influence Samsung not to do business with Aardvark. Id. ¶ 24. Specifically, the letter stated, in part,

We trust that Samsung appreciates Bobcar Media's concerns about its valuable intellectual property, and the importance of that intellectual property to Bobcar Media's business and its relationships with its customers. As a result, this information is being provided so that Samsung can consider and evaluate it further, particularly in guiding its business activities accordingly and choosing its preferred service providers and partners.

Id. ¶ 34. Defendants informed Samsung that its use of Aardvark's Aardy vehicle would constitute infringement. Id. ¶ 26. The letter also enclosed a copy of Bobcar's second amended complaint in the New York action. Id. ¶ 33. Notably, Samsung was previously a client of Bobcar. Id. ¶ 28.

         In addition, on August 9, 2016, Bobcar, through GC and Cohen, sent a letter to the Minnesota-based senior management of Wireless Vision, LLC, who is also a current customer of Aardvark. Id. ¶ 35. Defendants advised Wireless Vision about the New York Action, enclosed a copy of the second amended complaint, indicated that Aardvark's Aardy promotional vehicle is an infringement of six of Bobcar's patents, threatened Wireless Vision that its use of Aardvark's Aardy vehicle would constitute infringement and tried to procure Wireless Visions' business by stating Bobcar “is always interested in expanding its innovative services to potential partners such as Wireless Vision, continuing the tradition of very productive relationships that Bobcar Media has had with its clients in the past.” Id. ¶¶ 35-40. The letter further contained language similar to that found in the Samsung letter. Id. ¶ 42. Unlike Samsung, Wireless Vision never had a commercial relationship with Bobcar. Id. ¶ 41.

         Defendants also allegedly disparaged Aardvark through oral communications. Id. ¶ 43. For example, on May 5, 2016, Bobcar attended the Event Marketer Summit in Denver, Colorado, one of the largest conferences for the mobile and experiential marketing industry in the United States. Id. ¶ 45. At that time, Bobcar made statements to at least one of Aardvark's existing clients concerning Aardvark's business practices in light of the allegations contained in the New York action. Id. ¶ 45. Bobcar further suggested this company should not do business with Aardvark as a result of Aardvark's failure to follow the law, and should instead consider using Bobcar for its mobile marketing needs. Id.¶ 47.

         On September 21, 2016, Aardvark initiated the present suit in the Pennsylvania Court of Common Pleas for Montgomery County alleging tortious interference with existing and prospective contractual relations, defamation and civil conspiracy. Compl., ECF No. 1, Ex. A. On November 14, 2015, defendants removed the action to federal court. Notice of Removal, ECF No. 1. Although plaintiff moved to remand the case to state court on the ground that the notice of removal was untimely, I denied that motion in a memorandum and order dated December 21, 2016. ECF Nos. 13 & 14.

         On November 21, 2016, defendants moved to dismiss the case for lack of personal jurisdiction. ECF No. 5. Plaintiff responded on December 8, 2016, and Defendants filed a reply brief on December 20, 2016. ECF Nos. 10 & 12.


         Motions to dismiss for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2) require the court to accept as true the allegations of the pleadings and all reasonable inferences therefrom, and to resolve all factual disputes in favor of the plaintiff. Fed.R.Civ.P. 12(b)(2); see also Pinker v. Roche Holdings Ltd., 292 F.3d 361, 368 (3d Cir. 2002). The rule, however, “does not limit the scope of the court's review to the face of the pleadings;” rather the court must also consider any affidavits submitted by the parties. Scott v. Lackey, No. 02-1586, 2005 WL 2035598, at *1 (M.D. Pa. Aug. 11, 2005).

         Although a defendant has the initial burden of raising the lack of personal jurisdiction defense, once such a defense is raised, the burden shifts to plaintiff to establish facts that support an exercise of personal jurisdiction. Provident Nat'l. Bank v. Cal. Fed. Sav. & Loan Ass'n, 819 F.2d 434, 437 (3d Cir. 1987); Cumberland Truck Equip. Co. v. Detroit Diesel Corp., 401 F.Supp.2d 415, 418 (E.D. Pa. 2005). Plaintiff may do so through affidavits or competent evidence establishing sufficient contacts with the forum state. De Lage Landen Fin. Servs., Inc. v. Rasa Floors, LP, No. 08-0533, 2008 WL 4822033, at *3 (E.D. Pa. Nov. 4, 2008). Such contacts must be shown with “reasonable particularity.” Mellon Bank (East) PSFS, Nat'l Ass'n v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992), quoting Provident, 819 F.2d at 437. If plaintiff meets this burden, ...

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