United States District Court, E.D. Pennsylvania
AARDVARK EVENT LOGISTICS, INC.
BOBCAR MEDIA LLC, GOLDBERG COHEN, LLP and MORRIS E. COHEN
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.
to the facts set forth in plaintiff's complaint,
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.
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.
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
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.
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.
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.
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.
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.
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).
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, ...