|
|
B. Defendants' Motion to Dismiss for a Lack of Personal Jurisdiction
Next, Defendants argue that the Court lacks personal jurisdiction over them. The defense
of personal jurisdiction must be raised in the first responsive motion or pleading or else it is waived.
See FED. R. CIV. P. 1201)(1)(B). As mentioned in the Background section of this opinion,
Defendants filed an answer to Plaintiff s complaint, as well as a number of other documents, before
filing its motion to dismiss for lack of personal jurisdiction; Defendants clearly waived this defense.
Defendants argue in response that they are pro se litigants, and they should not be expected
to know the minutiae of legal procedure as do lawyers. But, on this issue, the Court is not only
bound by court rules, but it is also bound by Sixth Circuit precedent. See Rauch v. Day & Night
MFG. Corp, 576 F.2d 697, 701 (6th Cir. 1978) ("Case law is unanimous in holding, both before and
after enactment of the present court rule, that where a defendant files a pre-answer motion to dismiss
or an answer, without raising the defense of a lack of in personam jurisdiction, he waives any
objection to that defect."). Further, assuming arguendo that Defendants had not waived their
personal jurisdiction defense, the Court would likely have personal jurisdiction over Defendants in
this matter.
Note: Though Defendants' waived their personal jurisdiction defense on procedural grounds,
their motion would be denied on the merits as well. The Sixth Circuit has established a three-part
test to determine whether specific jurisdiction exists over a nonresident defendant: 1) the
defendant must purposefully avail himself of the privilege of conducting activities within the
forum state; 2) the cause of action must arise from the defendant's activities there; and 3) the acts
of the defendant or consequences caused by the defendant must have a substantial enough
connection with the forum state to make its exercise of jurisdiction over the defendant
fundamentally fair. See Cole v. Mileti, 133 F.3d 433, 436 (6th Cir. 1998).
When deciding a motion to dismiss for lack of personal jurisdiction without holding an
evidentiary hearing, the Court must view the pleadings and affidavits in the light most favorable
to Plaintiff. See Dean v. Motel 6 Operating L.P., 134 F.3d 1269, 1272 (6th Cir. 1998). Plaintiff
alleges that Defendants operated their www.theshopsatwillowbend.com website for the purpose
of commercial gain. Taking that allegation at face value, Defendants availed themselves of the
privilege of Michigan laws because the effect of the commercial use of their
www.shopsatwillowbend.com website was felt in Michigan.
|
[I don't understand why the judge is willing to take Taubman's allegation that I operated my
website for commercial gain "at face value" – despite the fact that there is absolutely no
evidence for that allegation. (There is no evidence for the allegation, by the way, because the
allegation is false.) In fact, as the judge himself notes later in his decision, Taubman is fond of
making up allegations that have no basis in fact and for which they present not a shred of
evidence.]
|
See Zippo Mfg. Co. v. Zippo Dot
Com, Inc., 952 F. Supp. 1119 (W.D.Pa. 1997). In addition, Defendants noted on their
www.shopsatwillowbend.com website that Plaintiff was a Michigan company. Further, a portion
of the cause of action, namely the harm, arose in Michigan. Finally, it is fundamentally fair to
allow Plaintiff to vindicate its rights in its home state. Therefore, Defendants motion would be
denied on the merits, too.
Therefore, Defendants' Motion to Dismiss for Lack of Personal Jurisdiction is
DENIED.
|
|
