United States District Court, W.D. Pennsylvania
Flowers Conti, District Judge
REPORT AND RECOMMENDATION ECF NO. 30
Pupo Lenihan, U.S. Magistrate Judge
respectfully recommended that the Motion to Dismiss (ECF No.
30) filed by Defendants OJCommerce, LLC, OJCommerice.com,
Inc. and Naomi Home, Inc., be granted on the basis of lack of
personal jurisdiction, and the Complaint be dismissed without
prejudice. It is further recommended that the Motion to
Transfer Venue be dismissed without prejudice.
Factual Background & Procedural History
Guidecraft, Inc. (“Plaintiff”) is a manufacturer
of children's toys and furniture. Amended Compl. at
¶ 10 (ECF No. 26). Plaintiff is a New York Corporation
with its place of business in Winthrop, Minnesota, and
“since 1966 has been engaged in designing,
manufacturing, marketing, and selling [their products] in
this Judicial District and elsewhere, principally through
resellers and internet sales.” Id. at
¶¶ 1, 10.
OJCommerce, LLC, OJCommerce.com, Inc., and Naomi Home, Inc.
(collectively, “Defendants”) are Delaware
corporations owned, operated, and controlled by the same
individual, with their principal place of business in
Miramar, Florida. Id. at ¶¶ 2-4, 6. From
2012 to 2018, Defendants were resellers of three of
Plaintiff's products: its KITCHEN HELPER® line of
children's stools, its Step-Up children's stools, and
its High-Rise Step-Up children's stools. Id. at
¶¶ 29, 30.
alleges that it terminated Defendants as its resellers for
violations of Plaintiff's MAPP pricing policies.
Id. at ¶ 34. Plaintiff alleges that after being
terminated as its resellers, Defendants began to develop,
market and sell infringing versions of these products
“throughout the United States and within this Judicial
District.” Id. at ¶ 35. Plaintiff alleges
that the sale of these stools is being done “on the
Internet through Defendant OJCommerce.com's interactive
website, which provides a link that consumers click on to
purchase the infringing products, as well as through online
retailer Amazon.” Id. at ¶ 36-38.
filed the Amended Complaint on December 11, 2018. (ECF No.
26). Plaintiff asserts counts under the Lanham Act of
Trademark Infringement, Unfair Competition and False
Designation of Origin, and Trade Dress Infringement. Amended
Compl. at ¶¶ 71-96 (ECF No. 26). In addition,
Plaintiff asserts counts of Copyright Infringement, Common
Law Unfair Competition, Tortious Interference with Business
Relations, Unjust Enrichment, and violation of
Pennsylvania's Trademark Dilution Law. Id. at
¶¶ 97-123. On January 15, 2019, Defendants filed
joint Motions to Dismiss pursuant to Federal Rules of Civil
Procedure 12(b)(2), 12(b)(3), and 12(b)(6), and a Motion to
Transfer Pursuant to 28 U.S.C. § 1404(a). (ECF No. 30).
With the filing of Plaintiff's Briefs in Opposition (ECF
Nos. 34, 35), this Motion is now ripe for disposition.
reasons set forth below, the Court respectfully recommends
that the Motion to Dismiss be granted as to all Defendants
for lack of personal jurisdiction.
Standard of Review
United States Court of Appeals for the Third Circuit
summarized the standard to be applied in deciding motions to
dismiss filed pursuant to Rule 12(b)(6):
Under the “notice pleading” standard embodied in
Rule 8 of the Federal Rules of Civil Procedure, a plaintiff
must come forward with “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” As explicated in Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009), a claimant must state a
“plausible” claim for relief, and “[a]
claim has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference
that the defendant is liable for the misconduct
alleged.” Although “[f]actual allegations must be
enough to raise a right to relief above the speculative
level, ” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007), a plaintiff “need only put forth
allegations that raise a reasonable expectation that
discovery will reveal evidence of the necessary
element.” Fowler, 578 F.3d at 213 (quotation
marks and citations omitted); see also Covington v.
Int'l Ass'n of Approved Basketball Officials,
710 F.3d 114, 117-18 (3d Cir. 2013).
Thompson v. Real Estate Mortg. Network, 748 F.3d
142, 147 (3d Cir. 2014).
responding to a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(2) for lack of personal jurisdiction, the
plaintiff bears the burden of proving, by a preponderance of
the evidence, facts sufficient to establish personal
jurisdiction over the defendants, by producing affidavits or
other competent evidence. Metcalfe v. Renaissance Marine,
Inc., 566 F.3d 324, 330 (3d Cir. 2009) (citing
Pinker v. Roche Holdings Ltd., 292 F.3d 361, 368 (3d
Cir. 2002); DayhoffInc. v. H.J. Heinz Co.,
86 F.3d 1287, 1302 (3d Cir. 1996)); see also Time Share
Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 66
n.9 (3d Cir. 1984). Where, as here, an evidentiary hearing is
not held on the 12(b)(2) motion, the plaintiff need only
demonstrate a prima facie case of personal jurisdiction.
Metcalfe, 566 F.3d at 330 (citing O'Connor
v. Sandy Lane Hotel Co., 496 F.3d 312, 316 (3d Cir.
2007)); D'Jamoos v. Pilatus Aircraft Ltd., 566
F.3d 94, 102 (3d Cir. 2009) (citing Miller Yacht Sales,
Inc. v. Smith, 384 F.3d 93, 97 (3d Cir. 2004)). A
plaintiff “presents a prima facie case for the exercise
of personal jurisdiction by ‘establishing with
reasonable particularity sufficient contacts between the
defendant and the forum state.'” Mellon Bank
(East) PSFS, Nat'l Ass'n v. Farino, 960 F.2d
1217, 1221 (3d Cir. 1992) (quoting Provident Nat'l
Bank v. Cal. Fed. Sav. & Loan Ass'n, 819 F.2d
434, 437 (3d Cir. 1987)) (other citation omitted). In
deciding a Rule 12(b)(2) motion, although the court must
accept the plaintiff's allegations as true and resolves
all doubts in its favor, D'Jamoos, 566 F.3d at
102 (citing Miller Yacht Sales, supra), plaintiff
may not rest solely on the pleadings to satisfy its burden of
proof. See Pinker, 292 F.3d at 368; Carteret
Sav. Bank, 954 F.2d at 146. Rather, the plaintiff must
present evidence that demonstrates a prima facie case for the