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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN
DIVISION
| THE TAUBMAN COMPANY |
| LIMITED PARTNERSHIP, |
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| Plaintiff, | |
| | Civil Action No. 01-72987 |
| v. |
| | Honorable Lawrence P. Zatkoff |
| WEBFEATS and HENRY MISHKOFF, |
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Magistrate Judge Komives |
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| Defendants. | |
MEMORANDUM IN SUPPORT OF
MOTION TO DISMISS FOR
LACK OF PERSONAL JURISDICTION
Pursuant to Rule 12(b)(2) and 12(d) of the Federal Rules of Civil Procedure, and based on the
accompanying affidavit of Henry Mishkoff, defendant has moved the Court to dismiss this action for
lack of personal jurisdiction. In the alternative, defendant has moved the Court to permit it to
amend its motion to dismiss for lack of venue to include the additional ground that the Court lacks
personal jurisdiction. This memorandum explains the basis for this motion.
Footnote: Although the complaint identifies two defendants, the accompanying affidavit of
Henry Mishkoff explains that WebFeats is an unincorporated name under which Mishkoff engages in a
variety of computer- and Internet-related endeavors. Because there is only one person to be sued, we
refer in this memorandum to the "defendant" rather than to the "defendants."
STATEMENT
Henry Mishkoff is a resident of Dallas, Texas who created a website to describe a new shopping
mall that was opening in his neighborhood. He used the name of the mall, Shops at Willow Bend, as
the domain name for his website, www.ShopsAtWillowBend.com. Mishkoff Affidavit ¶ 5.
Mishkoff did not sell any goods on the website, which provided links to the mall's official website,
"TheShopsAtWillowBend.com," and to the websites of most of the stores in the mall. When the website
first opened, it included an advertisement for a shirt-selling business of defendant's girlfriend,
but when plaintiff specifically objected to that reference, it was promptly deleted from the
website. Id. ¶ 6. The website is completely "passive" - it offers information
about the mall to those who may be interested, but does not provide any facility whereby viewers of
the website can purchase goods or services from Mishkoff. Id.
Mishkoff not only lives in Texas; he also works there. His business has no connection to
Michigan, where he has never lived. He does not own property in Michigan, and he does not invest in
any Michigan business. Id. ¶¶ 2-4. The only connection between this case and
Michigan is that the developer of the shopping mall is based in Michigan, and thus "owns" the
trademark there. The theory of personal jurisdiction in this case is that, because Mishkoff's domain
name and website use plaintiff's mark, and because the site can be accessed in Michigan and part of
the impact on the mark will be felt there, defendant has undertaken "actions" in Michigan that make
him subject to being sued here. As now explained, however, this theory is flatly inconsistent with
the almost unanimous view of the federal courts concerning personal jurisdiction in Internet cases,
and the complaint should therefore be dismissed for lack of personal jurisdiction.
THE COURT LACKS PERSONAL
JURISDICTION OVER MISHKOFF.
To be subject to in personam jurisdiction, Mishkoff must have "certain minimum contacts
with [Michigan] such that the maintenance of the suit does not offend 'traditional notions of fair
play and substantial justice.'" International Shoe Co. v. Washington, 326 U.S. 310, 316
(1945) (citations omitted); Third Nat'l Bank v. Wedge Group, 882 F.2d 1087, 1089 (6th
Cir. 1989). The minimum contacts test requires "in each case that there be some act by which the
defendant purposely avails itself of the privilege of conducting activities within the forum state,
thus invoking the benefits and protection of its laws." Hanson v. Denckla, 357 U.S. 235,
253 (1958). A defendant's connection with the state must be such that "it should reasonably
anticipate being haled into court" in the state in the event of a dispute. Worldwide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 295-96 (1980).
The minimum-contacts analysis generally requires assessment of whether the court is exercising
"general" or "specific" jurisdiction. Taubman can not sustain its burden of proving either general
or specific jurisdiction because the only conduct at issue - Mishkoff's creation in Texas of a
website where he can provide information about a project that Taubman has undertaken in Texas -
occurred outside Michigan and entailed no contact by Mishkoff with that state. Mishkoff Affidavit
¶ 4.
Footnote: On a motion to dismiss for lack of personal jurisdiction, the Court is not
limited to considering the face of the complaint; defendant's evidence may also be considered.
Turnock v. Cope, 816 F.2d 332, 333 (7th Cir. 1987). Plaintiff has the burden of proof
on this motion. Steel Warehouse of Wisconsin v. Leach, 154 F.3d 712, 714 (7th Cir.
1998).
A. General Jurisdiction Is Lacking.
The exercise of general jurisdiction requires that a defendant's contacts with the forum be
"continuous and systematic." Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S.
408, 416 (1984); see also Third Nat'l Bank, 882 F.2d at 1089. Even "continuous
activity of some sorts within a state is not enough to support [general jurisdiction]."
International Shoe, 326 U.S. at 318. "This is a fairly high standard in practice."
Wilson v. Humphreys (Cayman) Ltd., 916 F.2d 1239, 1245 (7th Cir. 1990). Rather, for
Michigan to assert general jurisdiction over a non-resident defendant, his contacts with Michigan
must be of such a "continuous and systematic" nature that personal jurisdiction over the defendant
is proper even if the action is unrelated to the defendant's contacts with the state.
Id. Where a defendant is not licensed to do business in the forum state, does not
maintain offices or employees there, and owns no property in the forum, "the facts do not support
the argument" that there is general jurisdiction. Conti v. Pneumatic Prods. Corp., 977
F.2d 978, 981 (6th Cir. 1992).
Henry Mishkoff does not live in Michigan; he owns no property in Michigan, does not do business
in Michigan, and has no contacts with Michigan. Mishkoff Affidavit ¶¶ 2-4. Mishkoff
is a self-employed resident of Texas who does not compete with Taubman, and in any event his website
is unrelated to his employment. The website is something he maintains in his spare time, and he
gains no monetary benefit from its operation. Mishkoff Affidavit ¶¶ 5-6. Nor does
the complaint allege any facts supporting the exercise of general jurisdiction. Clearly, Mishkoff
does not have "systematic and continuous" contacts with the State of Michigan so as to support the
exercise of general jurisdiction.
B. Specific Jurisdiction Is Lacking.
Specific jurisdiction is proper when the defendant's contacts with the forum are related to the
controversy underlying the litigation. See Helicopter, 466 U.S. at 414 n.8;
Conti, 977 F.2d at 981. To maintain specific personal jurisdiction, Taubman must show
that: (1) Mishkoff has purposely availed himself of the privilege of conducting business or causing
consequences in Michigan; (2) the cause of action arises from his activities in Michigan; and (3)
his conduct has a substantial enough connection with Michigan to make the exercise of jurisdiction
reasonable. Conti, 977 F.2d at 981. The defendant's contacts with the forum state must
have been sufficiently purposeful that the defendant should have had fair warning that he would be
subject to suit there. Lump v. Duffus, 71 F.3d 1368, 1371-1372 (7th Cir. 1995).
The only basis that Taubman mentions for a finding of personal jurisdiction is defendant
allegedly "engaged in actions in Michigan." Complaint ¶¶ 2, 3. Its papers have also
mentioned that Michigan residents can visit Mishkoff's website, and that Taubman's ownership of its
marks is situated in Michigan. However, courts faced with such claims consistently rule that
contact limited to viewing a non-resident defendant's non-commercial website (or a commercial but
merely passive website) in the forum, is simply insufficient to warrant the assertion of personal
jurisdiction.
Footnote: See, e.g., Soma Medical Intern. v. Standard Chartered Bank, 196 F.3d
1292 (10th Cir. 1999) (bank's passive website did not make it subject to jurisdiction in Utah);
Mink v. AAAA Development, 190 F.3d 333 (5th Cir. 1999) (Vermont company could not be
sued in Texas because of a passive Internet site even though viewers could use site to send emails
to the defendant); Cybersell v. Cybersell, 130 F.3d 414, 419 (9th Cir. 1997) (Florida
corporation's use of Arizona corporation's mark on website did not support exercise of personal
jurisdiction); Bensusan Rest. Corp. v. King, 937 F. Supp. 295 (S.D.N.Y. 1996), aff'd, 126
F.3d 25, 29 (2d Cir. 1997) (establishment of website accessible to New York residents was
insufficient to confer specific jurisdiction arising from use of trademark in website); Search
Force v. Dataforce Int'l, 112 F. Supp.2d 771, 778 (S.D. Ind. 2000) ("recent district court
cases . . . reinforce the notion that a defendant must avail itself of the forum state in a manner
that is somewhat more purposeful than an allegedly infringing domain name or use of an allegedly
infringing mark on an interactive website"); Coastal Video Comms. Corp. v. Staywell Corp.,
No. 2:99:cv198, 1999 U.S. Dist. LEXIS 11827, at *26 (E.D. Va. Aug. 2, 1999) (interactive website
alone did not confer personal jurisdiction); Nicosia v. De Rooy, No. C98-3029, 1999 U.S.
Dist. LEXIS 17451, at *8-9 (N.D. Cal. July 7, 1999) (mere creation of a website accessible by
forum residents does not amount to purposeful availment); Patriot Sys., v. C-Cubed Corp.,
21 F. Supp. 2d 1318, 1324 (D. Utah 1998) (no jurisdiction over company based merely on passive
website that provided information to those interested in it); Edberg v. Neogen Corp., 17
F. Supp. 2d 104, 113-115 (D. Conn. 1998) (no jurisdiction for website which provided no way to
order items advertised thereon); Santana Prods. v. Bobrick Washroom Equip., 14 F. Supp. 2d
710, 714 (M.D. Pa. 1998) (jurisdiction insufficient based on website through which no business
was transacted); Blackburn v. Walker Oriental Rug Galleries, 999 F. Supp. 636, 639 (E.D.
Pa. 1998) (contacts insufficient to support jurisdiction when website in question provided the
ability to receive e-mail messages from viewers but was otherwise passive); Mallinckrodt Med.
v. Sonus Pharms., 989 F. Supp. 265, 272-273 (D.D.C. 1998) (no jurisdiction based merely on
posting of allegedly defamatory statements on America On Line). Cf. Carver v. H.R. Plus,
992 F. Supp. 1293, 1295 (D. Utah 1998) (no personal jurisdiction based simply on computer access
to forum state).
The sliding scale between passive and interactive websites, described in the leading case of
Zippo Mfg. Co. v. Zippo Dot Com, 952 F. Supp. 119, 1124 (W.D. Pa. 1997), has been
specifically followed by decisions in the Eastern District of Michigan and elsewhere in the Sixth
Circuit, and many courts have described the rule as "settled law." E.g., Shapiro v. Santa Fe
Gaming Corp., 1998 WL 102677; see also Transcraft Corp. v. Doonan Trailer Corp.,
1997 WL 733905 (fact that website encourages communications by email or provides a toll-free
number is not sufficient interactivity to warrant personal jurisdiction over claim that goods
advertised on website violated plaintiff's trademark); Scherr v. Abrahams, 1998 WL
299678 (fact that website allowed viewers to add email addresses to list for email distribution
of publications that allegedly libeled plaintiff and violated his trademarks was not sufficient
interactivity for exercise of personal jurisdiction, where publications were sent free of charge).
Only where a website is not only interactive, but also enables the sale of goods in Michigan, do the
decisions deem the websites sufficient to warrant the exercise of personal jurisdiction.
This line of authority was squarely endorsed in Sports Authority Michigan v. Justballs,
Inc., 97 F. Supp.2d 806 (E.D. Mich 2000). There, the defendant, a company based in New Jersey,
allegedly maintained a website for the sale of its goods that infringed the plaintiff's trademarks,
and the issue turned on whether defendant's website was alone sufficient to warrant the exercise of
jurisdiction in Michigan. The court squarely endorsed the Zippo sliding scale analysis,
stating that "Simply registering someone else's trademark as a domain name and posting a website on
the Internet is not sufficient to subject a party domiciled in one state to jurisdiction in
another.... There must be "something more" to demonstrate that the defendant directed his activity
toward the forum state." Id. at 813. Accord, Oasis Corp. v. Judd, 132 F. Supp.2d
612, 623 (S.D. Ohio 2001) (fact that plaintiff was based in Ohio did not support personal
jurisdiction of trademark and libel claims against operator of non-commercial gripe site from Ohio,
even though website was sufficiently interactive to permit viewers to generate automatic letters in
support of defendant to the media and to the plaintiff); Neogen Corp. v. Neo Gen
Screening, 109 F. Supp.2d 724 W.D. Mich. 2000); IA, Inc. v. Thermacell
Technologies, 983 F. Supp. 697, 700-701 (E.D. Mich.1997).
An excellent example of this line of cases is Berthold Types Ltd. v. European Mikrograf
Co., 102 F. Supp.2d 928 (N.D. Ill. 2000). In that case, two companies that market typefaces were
in litigation over whether the defendant's font software violated the plaintiff's trademarks. "The
exercise of jurisdiction is ultimately determined by examining the level of interactivity and the
commercial nature of the exchange of information." Id. at 933. Although the website
enabled potential customers to interact with the defendant, and enabled existing customers to access
information about their commercial relationship with the defendant, jurisdiction was lacking because
sales could not actually be conducted over the site.
Similarly, in Winfield Collection v. McCauley, 105 F. Supp.2d 746 (E.D. Mich. 2000), the
plaintiff, a Michigan manufacturer and seller of home-craft patterns, sued a resident of Houston,
Texas who sold crafts in the Houston area and to some extent over the World Wide Web, allegedly in
violation of the plaintiff's copyrights. The Court held that the mere fact that the defendant had an
Internet website that could be accessed in Michigan was not a sufficient reason to subject her to
jurisdiction in Michigan. Id. at 750. This was true even though the website was
sufficiently interactive to be able to send and receive messages, including messages about orders
for purchase of the goods using the plaintiff's copyrighted designs, absent evidence that the
defendant had actually developed a customer base in Michigan, or had at least made intentional
efforts to secure customers in the forum state. Here, of course, the mall whose trademark is at
issue is located in Texas, and it does not seem at all likely that residents of Michigan would have
been at all interested in it.
Another similar case was Bensusan Rest. Corp. v. King, 937 F. Supp. 295 (S.D.N.Y. 1996),
aff'd, 126 F.2d 25 (2d Cir. 1997), a case where a St. Louis jazz club published a website using its
name, the Blue Note, which was the same as the world-famous club in New York City. The New York club
sued for trademark violations, but the district court refused to exercise jurisdiction, because, as
here, defendant had no presence of any kind in the forum "other than the Web site that can be
accessed worldwide." 937 F. Supp. at 301. The court found that to permit jurisdiction in New
York would have violated due process because the defendant did not actively seek to encourage
residents of the forum to access the site and conducted no business in the forum. As the court
stated, "[c]reating a [web]site, like placing a product into the stream of commerce, may be felt
nationwide - or even worldwide - but, without more, it is not an act purposefully directed toward
the forum state." Id., citing Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 112
(1992). The basis for asserting personal jurisdiction over Mishkoff is even weaker because his
website conducts no business of any kind whatsoever. Mishkoff Affidavit ¶ 6.
Mishkoff's website is not only passive, but entirely non-commercial. Mishkoff's message is not in
any way targeted at reaching Michigan residents. See IMO Indus., Inc. v. Kiekert AG, 155
F.3d 254, 265 (3d Cir. 1998) (affirming dismissal based on lack of personal jurisdiction because
tortious conduct was not expressly aimed at the forum). Mishkoff is not selling anything, and his
website contains no advertisements for the sale of products and services. Mishkoff Affidavit
¶ 6. Accordingly, there is no basis for personal jurisdiction over Mishkoff in
Michigan.
In essence, Taubman's implicit assertion is that jurisdiction over Mishkoff is proper in Michigan
because some of the entities allegedly harmed by Mishkoff's Texas website are located in Michigan -
in effect, that the tort was committed in Michigan. Even if this argument were sound, it would not
be a basis for permitting plaintiff to sue here, because Taubman is based in the Detroit area.
[Moreover, many courts have previously rejected the proposition that a defamatory statement made in
the defendant's home state constitutes a tort committed in the plaintiff's home state, even if the
defendant knew that the plaintiff was located there. Nelson v. Bulso, 149 F.3d 701 (7th
Cir. 1998).] Neither does the mere inclusion of a trademark in a non-commercial Internet site
subject a defendant to personal jurisdiction in the home state of the trademark holder. We have
found no case authorizing personal jurisdiction solely on that basis, and squarely to the contrary
are cases such as Mid City Bowling Lanes & Sports Palace v. Ivercrest, 35 F. Supp. 2d 507,
511-512 (E.D. La. 1999), aff'd mem., 208 F.3d 1006 (5th Cir. 2000) (even in a commercial
context, inclusion of a trademark is insufficient to support personal jurisdiction).
If any tort was committed, it was in Texas, where the website was created and where the HTML code
was loaded onto the server. Mishkoff Affidavit ¶ 4. See Compuserve v.
Patterson, 89 F.3d 1257, 1268 (6th Cir. 1996) (jurisdiction could be exercised in Ohio over
a defendant who had loaded his software onto the plaintiff's server in Ohio, but Court pointedly
declined to extend its holding to any Internet user who happened to use the software on a computer
in a different state). In sum, Michigan's interest in protecting Taubman from one Texas man's
exercise of his First Amendment rights is slim, and does not trigger exercise of personal
jurisdiction based upon the Michigan long-arm statute.
Indeed, a finding of jurisdiction here would have chilling implications for citizens' right to
speak freely about corporations and state officials that they believe have wronged them. This case
is not, after all, about a manufacturer or entrepreneur who placed a product in the stream of
commerce in the hopes of making profits, an expectancy which can be balanced against the danger of
being sued in some location where the product came to rest and caused injury. Every person who posts
an opinion on the Internet knows that persons sitting at computers not just in their own country,
but in foreign lands half way around the globe, may gain access to their views by the simple act of
"clicking on their link" or finding them through a search engine. If citizens knew that they could
be forced to defend themselves against litigation in every such forum, they would surely be chilled
in the exercise of their First Amendment rights.
Footnote: In recent cases, for example, France and Germany have sought to bar leading
Internet companies from allowing websites accessible in their countries from mentioning Nazis or
carrying Nazi paraphernalia, which are beyond the bounds of free speech protection in those
countries. Other countries, such as China and Cuba, have undertaken efforts to purge the Internet of
any dissenting opinions. If jurisdiction is allowed anywhere that a website is accessible, the
chilling effects on free Internet speech will become even more serious.
This danger is amply shown by the case before the Court. Henry Mishkoff is an individual living
and working in Texas who wanted to express his admiration for a shopping mall developed by Taubman
near his home in Dallas, Texas, and developed a website praising that mall. Mishkoff is not a
competitor of Taubman or any of its affiliates, nor does he derive any financial benefit from his
non-commercial website. Id. ¶ 6. Mishkoff merely created a forum describing the
mall and its stores. And yet he has been haled into court more than halfway across the country,
where he knows nobody and where he has never even lived or worked. Mishkoff has done nothing to
purposefully avail himself of the privilege of conducting activities within Michigan. His creation
of a non-commercial website from his home in Dallas, Texas, certainly has not given him reason to
"reasonably anticipate being haled into court" in Michigan. Consequently, Taubman's action should be
dismissed for lack of personal jurisdiction.
THIS MOTION IS TIMELY.
Because plaintiff has argued that the motion for a change of venue is untimely, this memorandum
explains why this motion is timely. According to 5A Wright & Miller, Federal Practice and Procedure:
Civil 2d § 1361 (1990):
A strict interpretation of the timing provision [in Rule 12(b)] leads to the conclusion that the
court must deny any motion made after a responsive pleading as being too late. However, courts have
allowed untimely motions if the defense has previously been included in the answer. In this context,
the motion becomes tantamount to a preliminary hearing under Rule 12(d). Id. at
445-446.
The answer to the Complaint specifically denied the allegations as to jurisdiction, on the candid
ground that defendant, acting pro se, wasn't familiar with the concepts involved and thus was unable
to formulate a response to the vague and conclusory allegation that he had engaged in "actions" in
Michigan. Now that Mishkoff has been able to consult with an attorney who is familiar with
cyber-trademark litigation, he has learned that nothing he has done subjects him to jurisdiction in
this forum, and he therefore asks the Court to dismiss the case against him.
It might also be argued that the filing of a motion for change of venue constituted a waiver of
the right to move to dismiss for lack of personal jurisdiction. However, Wright and Miller makes
clear that it is permissible to seek leave to amend an original motion to dismiss to avoid such a
waiver, id. § 1389, at 739-740, and the current motion asks in the alternative that the Court
allow defendant to amend the current motion to change venue to include the current motion to dismiss
for lack of personal jurisdiction. Moreover, the Sixth Circuit has repeatedly made clear that the
papers of pro se parties should be liberally construed. Following this principle, the Court is
requested to construe the motion for change of venue to include the closely related concept of lack
of personal jurisdiction, and to consider the arguments in this memorandum in support of that
motion.
Respectfully submitted,
Henry Mishkoff
WebFeats
2661 Midway Road, #224-225
Carrollton, TX 75006
(972)931-5421
Pro se
November 12, 2001
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