OPINION AND ORDER

KENNETH A. MARRA, District Judge.

This cause is before the Court upon Defendants' Joint Motion to Dismiss or Transfer (DE 45). The Court has reviewed the briefs and the record, and is otherwise advised in the premises.

I. Background

This case involves competing claims of ownership and inventorship of a dental implant system. Plaintiff Jack T. Krauser, D.M.D. ("Dr. Krauser") is a noted periodontist and implant surgeon, a lecturer, author, and educator, and a consultant to several major dental implant companies. He alleges that he "first conceived" the dental implant system in question in 1987. (DE 35: Am. Compl. ¶ 11).1

In 1988, Dr. Krauser retained a medical job and machine shop to produce drawings and manufacture prototypes of the system, including implants, attachments, and related products. (Am. Compl. ¶ 12). To assist the shop in performing its work, Dr. Krauser provided the shop with written memoranda, initial drawings and sketches, work product, and intellectual property, including copyrighted materials expressing his ideas in connection with the system. (Am. Compl. ¶ 13). The shop was not manufacturing or selling any dental implant systems of its own at that time. (Am Compl. ¶ 12).

Once the manufacturing process began, Dr. Krauser worked with the shop's principals and employees to develop the system. (Am. Compl. ¶ 14). According to the complaint, "[t]his collaboration included face-to-face communications as part of a broader exchange of documents, sketches, drawings and ongoing discussions pertinent to in vitro and in vivo animal studies and human clinical evaluations." Id. Dr. Krauser alleges that he contributed to the evolution and improvement of the system with his experience in the implant field, his prior consulting with other dental implant manufacturers, his knowledge and ideas gained through giving and attending lectures in the field, "and his thoughts generating further ideas for such improvements." (Am. Compl. ¶ 15).

While Dr. Krauser and the shop's principals and employees developed the system over the next several years, some of the principals and employees applied for and received five patents on different aspects of it. (Am. Compl. ¶ 16).2 Dr. Krauser was not named as an inventor on the applications, and he now seeks to correct the inventorship of four of the five patents.3 He alleges that he has a reputational interest in correcting the omission of his name because of his stature in the dental implant field, and he further claims that he has an economic interest in the patents and, by extension, Article III standing to bring this action. (Am. Compl. ¶¶ 20-21).

This is not the first time Dr. Krauser has initiated an action related to the system. In an earlier case before this Court, Dr. Krauser brought a claim for declaratory relief seeking a declaration that he was both the inventor and owner of the system.4 He also sought attorney's fees. The inventorship claim was voluntarily dismissed without prejudice, but the Court addressed the remaining ownership claim at summary judgment. The Court concluded that "it is not enough for [Dr. Krauser] to claim ownership of the at-issue intellectual property by stating that the dental implant system incorporates certain features that reflect his ideas. The Court therefore finds, as a matter of law, that [Dr. Krauser] has no ownership rights to the aforementioned intellectual property," i.e., the dental implant system. (Case No. 10-CV-80454-KAM: DE 169 at 20).

In this case, Dr. Krauser seeks an order directing the USPTO to correct the patents by naming him an inventor pursuant to 35 U.S.C. § 256. That statute provides:

Section 256 "provides a cause of action to interested parties to have the inventorship of a patent changed to reflect the true inventors of the subject matter claimed in the patent." Larson v. Correct Craft, Inc., 569 F.3d 1319, 1324 (Fed.Cir.2009) (citation and internal quotations omitted). The Federal Circuit has interpreted § 256 broadly "as a `savings provision' to prevent patent rights from being extinguished simply because the inventors are not correctly listed." Id. (quoting Chou v. Univ. of Chi., 254 F.3d 1347, 1358 (Fed.Cir.2001)).

Defendants Evollution IP Holdings, Inc. ("Evollution") and BioHorizons Implant Systems, Inc. ("BioHorizons") move to dismiss Dr. Krauser's inventorship claim on three grounds: first, it is barred by the doctrine of res judicata; second, Dr. Krauser is collaterally estopped from asserting any ownership interest in the patents, and his alleged reputational injury is insufficient to establish standing under Article III; and third, Evollution is not subject to personal jurisdiction in Florida.6 As to this last argument, Defendants request that the Court transfer this action to the District of Delaware — which presumably has jurisdiction over both defendants — as opposed to dismissing Evollution and subjecting Defendants to two lawsuits in two separate venues.

II. Legal Standards

Defendants move to dismiss Dr. Krauser's claim as barred by res judicata under Federal Rule of Civil Procedure 12(b)(6). A motion to dismiss based on res judicata is problematic in the sense that res judicata is an affirmative defense that requires the Court to look outside of the pleadings, and Federal Rule of Civil Procedure 12(d) instructs the Court to convert such a motion into one for summary judgment.7 But "[a] district court may take judicial notice of certain facts without converting a motion to dismiss into a motion for summary judgment," Horne v. Potter, 392 Fed.Appx. 800, 802 (11th Cir.2010) (citing Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1278 (11th Cir.1999)), and the Court accordingly takes judicial notice of the pleadings and documents in Dr. Krauser's first case before this Court (Case No. 10-CV-80454-KAM) as public records, see Horne, 392 Fed.Appx. at 802; see also Lobo v. Celebrity Cruises, Inc., 704 F.3d 882, 892-93 (11th Cir.2013) (comparing complaints from two separate cases to determine whether the same facts were involved for purposes of res judicata and ultimately affirming district court's dismissal under Rule 12(b)(6)); Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1184-85 (11th Cir.2003) (affirming district court's dismissal on grounds of res judicata under Rule 12(b)(6)). Consequently, Defendants' 12(b)(6) motion will not be converted into a motion for summary judgment.

A. Motions to dismiss under Rule 12(b)(6)

Rule 8(a) of the Federal Rules of Civil Procedure "requires only `a short and plain statement of the claim showing that the pleader is entitled to relief' in order to give the defendant fair notice of what the plaintiff's claim is ... and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Fed.R.Civ.P. 8(a)(2)). The Supreme Court has held that "[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the `grounds' of his `entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level." Id. (citations omitted).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.; see also Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1261 (11th Cir.2009). Thus, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Iqbal, 129 S.Ct. at 1950. When considering a motion to dismiss for failure to state a claim, the court must "accept[] the allegations in the complaint as true and constru[e] them in the light most favorable to the plaintiff." Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1288 (11th Cir.2010) (internal quotation marks omitted).

B. Res judicata and the declaratory judgment exception

As to res judicata, the Eleventh Circuit has held that,

Dormescar v. U.S. Atty. Gen., 690 F.3d 1258, 1268 (11th Cir.2012) (citations, quotations, and notes omitted); see also Lobo, 704 F.3d at 892-93; Davila, 326 F.3d at 1187. "In determining whether the prior and present causes of action are the same, [the Court] must decide whether the actions arise `out of the same nucleus of operative fact, or are based upon the same factual predicate.'" Davila, 326 F.3d at 1187 (quoting In re Piper Aircraft Corp., 244 F.3d 1289, 1297 (11th Cir.2001)).

In the Eleventh Circuit, however, a declaratory judgment exception to res judicata has been adopted; thus, ordinary principles of res judicata are not applied to declaratory judgments provided that declaratory relief was the only relief sought in the prior action. See Empire Fire & Marine Ins. Co. v. J. Transp., Inc., 880 F.2d 1291, 1296 (11th Cir.1989); see also Duane Reade, Inc. v. St. Paul Fire & Marine Ins. Co., 600 F.3d 190, 196 (2d Cir.2010) (citing 18A Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4446) ("So long as the request for declaratory relief is combined or followed with coercive relief, the claim-preclusion rules that apply to actions for coercive relief apply with full force."). As held in Empire Fire, the supplemental nature of declaratory relief "requires that preclusive effect can only be given to relitigation of any issue actually litigated and necessary to the judgment rendered." Empire Fire & Marine Ins. Co., 880 F.2d at 1294-97 (emphasis in original) (adopting the rationale of the former Fifth Circuit in Kaspar Wire Works, Inc. v. Leco Eng'g & Mach., Inc., 575 F.2d 530 (5th Cir.1978)).8 In other words, "the preclusive effect of a prior declaratory proceeding should be viewed, within the usual framework of res judicata, as presenting a special problem of issue preclusion." Id. at 1296; see also Magaldi v. Safeco Ins. Co. of Am., No. 10-80280-CIV, 2010 WL 2542011, at *3 (S.D.Fla. June 22, 2010) ("Under the declaratory judgment exception to the [claim preclusion rule], the preclusive effect of a declaratory judgment is limited to the subject matter of the declaratory relief, with the rule of preclusion prohibiting only relitigation of any issue actually litigated and necessary to the judgment rendered in the first filed suit.") (citations omitted) (emphasis in original).

Issue preclusion, otherwise known as collateral estoppel, applies when the issue at stake is identical to the one involved in the prior proceeding and the issue was actually litigated and decided in the prior proceeding. See Lozman v. City of Riviera Beach, 713 F.3d 1066, 1080 (11th Cir.2013) (citing Pleming v. Universal-Rundle Corp., 142 F.3d 1354, 1359 (11th Cir.1998)). Moreover, "the issue must have been `actually litigated and resolved in a valid court determination essential to the prior judgment.'" Id. (quoting Taylor v. Sturgell, 553 U.S. 880, 892, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008)).

III. Analysis

As previously indicated, in the prior action between the parties Plaintiff asserted, and then voluntarily dismissed, his inventorship claim. As a result, Defendants argue that all four elements of res judicata have been established in this case. Defendants further assert that because Dr. Krauser sought both declaratory and coercive relief in the prior action, the declaratory judgment exception to res judicata does not apply. (The latter relief being in the form of Dr. Krauser's request for attorney's fees). Dr. Krauser responds by arguing that his request for attorney's fees did not constitute coercive relief, so the declaratory judgment exception applies and renders the preclusive effect of the prior action limited to the subject matter of the declaratory relief, i.e., ownership (or lack of ownership) of the patents at issue. Hence, the fact that Dr. Krauser is estopped from asserting ownership does not prevent him from seeking correction of inventorship. He also asserts that his reputational interest in correcting inventorship is sufficient to confer Article III standing.

A. Res judicata and the declaratory judgment exception

As a threshold matter, application of the declaratory judgment exception in this case requires a determination as to whether Dr. Krauser's request for attorney's fees in the prior action constituted "coercive relief." As in the prior action, the Court applies Florida contract law to construe the agreement that entitled Dr. Krauser to initiate the prior action, see supra note 4, because whether Krauser's request for fees constituted coercive relief is a substantive issue of contract interpretation, i.e., an issue of how integral the fees are to the merits of the case and the scope of relief. See Preston v. Marathon Oil Co., 684 F.3d 1276, 1285 (Fed.Cir.2012) (recognizing that construction of pattern assignment agreements is a matter of state contract law); see also In re Chira, 567 F.3d 1307, 1312 (11th Cir.2009); Krauser v. BioHorizons, Inc., 903 F.Supp.2d 1337, 1349 (S.D.Fla.2012) (citing Mars, Inc. v. Coin Acceptors, Inc., 527 F.3d 1359, 1370 (Fed.Cir.2008)). In Florida, the recovery of attorney's fees is ancillary to the substantive claim within which the fees are sought. See Cheek v. McGowan Elec. Supply Co., 511 So.2d 977, 979 (Fla.1987) ("the recovery of attorney's fees is ancillary to the claim for damages. A contractual provision authorizing the payment of attorney's fees is not part of the substantive claim because it is only intended to make the successful party whole by reimbursing him for the expense of litigation."); First Specialty Ins. Co. v. Caliber One Indem. Co., 988 So.2d 708, 714 (Fla.Dist. Ct.App.2008) ("Florida courts have held that attorneys' fees are not damages. Attorneys' fees are ancillary to damages, and are not part of a substantive claim.") (citations and internal quotations omitted); Scottsdale Ins. Co. v. Haynes, 793 So.2d 1006, 1009 (Fla.Dist.Ct.App.2001) ("It is generally held that attorney's fees are not damages, but are ancillary to damages, and are not part of a substantive claim."); see also Schafler v. Fairway Park Condo. Ass'n, 324 F.Supp.2d 1302, 1311 (S.D.Fla. 2004) (concluding that, in the context of an Erie analysis, "the issue of attorney's fees is ancillary to the underlying cause of action. Parties are not likely to engage in forum shopping with respect to ancillary issues at the time the cause of action is initially filed."); Screnci v. State Farm Mut. Auto. Ins. Co., No. 09-80510-CIV, 2009 WL 3667091, at *4 (S.D.Fla. Oct. 26, 2009) ("Florida law is clear that the recovery of attorney's fees is ancillary to substantive claims for relief.") (citations omitted). Thus, the Court has little trouble concluding that Dr. Krauser's request in the prior action for attorney's fees, i.e., "ancillary relief" as defined by Florida law, does not constitute a request for "coercive relief." As a result, the declaratory judgment exception is applicable in this case. And because the exception applies, the preclusive effect of the Court's declaration in the prior action is limited to the subject matter of the declaratory relief. The subject matter of that relief addressed Dr. Krauser's lack of ownership in the patents at issue. No party can dispute that the issue of ownership was actually litigated and necessary to the judgment rendered in the prior action, barring Dr. Krauser from relitigating that issue here.

But Dr. Krauser now brings a claim for correction of inventorship under 35 U.S.C. § 256, and it is well established that ownership and inventorship are separate issues because "inventorship is a question of who actually invented the subject matter claimed in a patent. Ownership, however, is a question of who owns legal title to the subject matter claimed in a patent, patents having the attributes of personal property." Beech Aircraft Corp. v. EDO Corp., 990 F.2d 1237, 1248 (Fed. Cir.1993) (citing 35 U.S.C. § 261); see also Israel Bio-Eng'g Project v. Amgen, Inc., 475 F.3d 1256, 1264 (Fed.Cir.2007) (citing Beech Aircraft Corp. approvingly). Notwithstanding the distinction between the two, Defendants argue that Dr. Krauser lacks Article III standing to bring his inventorship claim because he is collaterally estopped from asserting any ownership interest in the patents. This lack of ownership interest, according to Defendants, deprives Dr. Krauser of any financial interest in the patents and, by extension, any economic interest that might confer standing under Article III. Dr. Krauser responds by asserting that the "reputational" injury he would suffer by not being named an inventor on the patents at issue meets Article III's requirements.

B. The "reputational interest" theory of Article III standing

Whether a purely reputational interest confers standing for a § 256 claim is an open question in the Federal Circuit. On at least two occasions that court had an opportunity to resolve the issue, and on both occasions the court left the question unanswered. See Chou, 254 F.3d at 1359 (reserving decision on whether a reputational interest alone is enough to satisfy Article III's standing requirements); see also Larson, 569 F.3d at 1328 ("we need not answer the question we left open in Chou — whether a purely reputational interest is sufficient to confer standing for a § 256 claim — because the issue is simply not presented by these facts."). For the reasons that follow, this Court answers the open question and holds that a purely reputational interest is sufficient to confer standing for a § 256 claim.

Of course, whether a plaintiff seeking correction of inventorship under § 256 has Article III standing is a threshold question, "determining the power of the court to entertain the suit." Larson, 569 F.3d at 1325-26 (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). The plaintiff can pursue the inventorship claim in federal court "only if the requirements for constitutional standing — namely injury, causation, and redressability — are satisfied." Id. at 1326.

In Chou, the first of the two cases to address the unique standing issue before the Court, the Federal Circuit made the following observation:

Chou, 254 F.3d at 1359; see also Jardin v. DATAllegro, Inc., No. 10-CV-2552-IEG (WVG), 2011 WL 3300152, at *8 (S.D.Cal. July 29, 2011) (citing Chou for the proposition that "[t]he attribution of inventorship confers value other than purely economic benefits."). In Larson, the second of the two cases, the Federal Circuit again left the question open because the court concluded that the plaintiff had failed to claim a reputational injury, so a reputational injury could not be a basis on which to find standing. See Larson, 569 F.3d at 1327-28; see also Vita-Herb Nutriceuticals, Inc. v. Probiohealth, LLC, No. SACV 11-1463, 2013 WL 1182992, at *4 (C.D.Cal. Mar. 20, 2013) (reserving resolution of the question of standing based on reputational injury because, similar to Larson, the plaintiff conceded that it did not seek reputational damages).

Here, Dr. Krauser alleges that, given his stature in the dental implant field, "he has a reputational interest in correcting the omission of his name and, therefore, evidence of his contributions to each of the patents which are the subject of this action." (Am. Compl. ¶ 20). He separately alleges that he has "an economic interest in each of those patents and standing to bring this action." (Am. Compl. ¶ 21). Unlike Chou, Dr. Krauser has not alleged any concrete financial interest in the patents at issue. And unlike Larson, he has alleged a reputational injury.

Since Larson and Chou, district courts addressing this issue have come to opposite conclusions. Some courts have rejected the "reputational interest" theory of standing because "bald assertions" of reputational interest are insufficient to carry the plaintiff's burden of proof, see Cole v. Gummow, No. 3-02-CV-0705-BD(P), 2003 WL 22455387, at *3 (N.D.Tex. Oct. 22, 2003), and because being designated an inventor does not necessarily constitute "a mark of success in one's field," see Barnette v. Dicello, 616 F.Supp.2d 709, 714 (N.D.Ohio 2007) (citing Cole approvingly). Moreover, one court effectively rejected the theory by concluding that even if the plaintiff could establish standing based solely on injury to reputation, her claim failed as a matter of law because she provided no evidence (such as lost employment opportunities) to support injury to reputation. See Hoang v. Abbott Labs., No. 08 C 189, 2009 WL 1657437, at *3 (N.D.Ill. June 12, 2009).

On the other hand, one court concluded that, at the motion to dismiss stage, a plaintiff had standing to challenge inventorship under § 256 "due to potential harm to his reputational interests." Shukh v. Seagate Tech., LLC, Civil No. 10-404 (JRT/JJK), 2011 WL 1258510, at *8 (D.Minn. Mar. 30, 2011). But that court also considered the plaintiff's allegations that he was having trouble finding new employment and noted that "it is ... logical that omission from important patents could affect his ability to get a new job," Id. at *7, and in any event the court ultimately granted the defendant's motion for summary judgment because, while a general allegation of reputational injury was sufficient to survive a motion to dismiss, the plaintiff failed to come forward with evidence of damage to his reputation to survive summary judgment. See Shukh v. Seagate Tech., LLC, Civil No. 10-404 (JRT/JJK), 2013 WL 1197403, at *3-*13 (D.Minn. Mar. 25, 2013).9 Another court similarly concluded that, at the motion to dismiss stage, a plaintiff had standing because he alleged that he suffered harm to his reputation and standing in the scientific community and that, as a result, he was unable to secure an employment opportunity and earn a particular salary. See Czarnik v. Illumina, Inc., 437 F.Supp.2d 252, 256 (D.Del.2006). Consistent with Shukh, however, the court in Czarnik noted that to survive summary judgment the plaintiff would be required to "set forth by affidavit or other evidence specific facts establishing standing." Id. at 256 n. 2 (citation omitted).

While courts have come to different conclusions as to the soundness of the reputational interest theory of standing, no court has provided a rationale for its conclusion other than a value judgment as to the significance (or lack of significance) of a man's interest in his reputation. Yet there is a body of law devoted to this very issue.

i. A brief overview of the history of defamation law

"Since the latter half of the 16th century, the common law has afforded a cause of action for damage to a person's reputation by the publication of false and defamatory statements.... Defamation law developed not only as a means of allowing an individual to vindicate his good name, but also for the purpose of obtaining redress for harm caused by such statements." Milkovich v. Lorain Journal Co., 497 U.S. 1, 11-13, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990) (quoting L. Eldredge, Law of Defamation 5 (1978)). As the Supreme Court has explained,

Gertz v. Robert Welch, Inc., 418 U.S. 323, 349, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). At common law, defamatory publications enabled a plaintiff "to require the defamer to prove the truth of the imputation or to concede its falsity and establish the privileged character of the publication." Restatement (First) of Torts § 569 cmt. b (1938). This rule provided a path to vindication by letting a defamed plaintiff publicly brand the defamatory publication as false. Id.; see also Gertz, 418 U.S. at 370-404, 94 S.Ct. 2997 (White, J., dissenting); Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 765-774, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985) (White, J., concurring). "The salutary social value of this [was] preventive in character since it often permit[ted] a defamed person to expose the groundless character of a defamatory rumor before harm to the reputation has resulted therefrom." Restatement (First) of Torts § 569 cmt. b. Consistent with this vindicatory goal, actual harm to the plaintiff's reputation was unnecessary because the publication itself was seen as an injury — "and therefore a sufficient ground for recovery of at least nominal damages." Id. cmt. c.10

The Restatement (Second) of Torts reinforces a defamed plaintiff's entitlement to nominal damages "when the insignificant character of the defamatory matter ... leads the jury to believe that no substantial harm has been done to his reputation, and there is no proof that serious harm has resulted from the defendant's attack upon the plaintiff's character and reputation. Restatement (Second) of Torts § 620 cmt. a (1977). Nominal damages are awarded "when they are the only damages claimed, and the action is brought for the purpose of vindicating the plaintiff's character by a verdict of a jury that establishes the falsity of the defamatory matter." Id. (emphasis added).

To be sure, the law of defamation has evolved and been interpreted to have First Amendment implications in a long line of cases involving public official and public figure plaintiffs, media and non-media defendants, and matters of public concern. See, e.g., Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986); Gertz, 418 U.S. at 349, 94 S.Ct. 2997; Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971); Curtis Publ'g Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967); New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). But the effect of these decisions on cases involving private plaintiffs and private matters — cases that are ostensibly the most analogous to § 256 claims11 — remains unclear. See Bierman v. Weier, 826 N.W.2d 436, 443 (Iowa 2013) ("In its constitutional decisions, [the Supreme Court] has seemingly cleared a path for traditional common law defamations claims to proceed when the plaintiff is a private figure and the defamation concerns private matters.").12

Amidst the confusion, at least two state supreme courts have recently held that common law libel presumptions still apply in defamation cases with private plaintiffs that do not involve matters of public concern. See id. at 448-53; W.J.A. v. D.A., 43 A.3d 1148, 1160 (N.J.2012).13 In Bierman, the Iowa Supreme Court concluded that the United States Supreme Court "has never invalidated the common law libel presumptions ... to private plaintiff/private concern cases against non-media defendants." Bierman, 826 N.W.2d at 448. The opinion echoes rationale of the United States Supreme Court as to why the common law libel presumptions are useful:

Id. at 454 (quoting Dun & Bradstreet, Inc., 472 U.S. at 760-61, 105 S.Ct. 2939). In W.J.A. v. D.A., and similarly consistent with the common law rationale, the New Jersey Supreme Court held that "[w]here a plaintiff does not proffer evidence of actual damage to reputation, the doctrine of presumed damages permits him to survive a motion for summary judgment and to obtain nominal damages, thus vindicating his good name." W.J.A., 43 A.3d at 1150 (emphasis added). The court later reasoned that, "in a defamation case, vindication is a significant part of the analysis. A trial, even one with only nominal damages awarded, will establish that a defendant's allegations against a plaintiff were false." Id. at 1159. A specially concurring Justice in Bierman made the point succinctly:

Bierman, 826 N.W.2d at 467 (Wiggins, J., concurring specially).

ii. Why the rationale of defamation law applies here

Requiring Dr. Krauser to prove some kind of concrete financial or economic harm to establish standing for a reputational injury is tantamount to requiring a defamed plaintiff to prove actual damages to state his claim. Notwithstanding the First Amendment implications that are now a part of the law of defamation, it is clear that at common law actual damages were not necessary for a successful defamation claim. The common law recognized that a man's reputation was possibly his most valuable asset, that vindicating that reputation in the face of one who sought to defame it was of paramount importance, and that such vindication need not unnecessarily punish the defamer because a judgment in favor of the plaintiff that simply established the falsity of the defamation — and nothing more — was vindication enough.14

While the First Amendment protections established by the Supreme Court serve the constitutional guarantee of free and uninhibited discussion of public issues, in defamation cases that guarantee has always been balanced against society's "pervasive and strong interest in preventing and redressing attacks upon reputation." Milkovich, 497 U.S. at 22, 110 S.Ct. 2695; see also Gertz, 418 U.S. at 342, 94 S.Ct. 2997 ("Some tension necessarily exists between the need for a vigorous and uninhibited press and the legitimate interest in redressing wrongful injury."). In the case of an inventor seeking to protect his professional name through correction of inventorship, that balance shifts in favor of society's interest in redressing damage upon reputation. And this shift is due to the importance of protecting inventors' reputations as much as it is due to the minimal service to the First Amendment that would be engendered by a rule prohibiting inventors — who seek nothing more than reputational vindication — from bringing actions for correction of inventorship.15

iii. Conclusion

Dr. Krauser has a vindicatory interest in correcting inventorship because, consistent with common law rationale, an erroneous patent application is itself an injury to his reputation sufficient to confer Article III standing. He need not prove any concrete financial or economic injury to vindicate his reputation because, as in most defamation cases, such injuries will generally be impossible to prove, and success on the § 256 inventorship claim serves a vindicatory purpose even if there is no concrete injury to be redressed. To hold otherwise would mean that the true inventor of a product who lacked any economic or ownership interest in his product would have no means of redress. Notwithstanding the contrary case law set forth above, this Court finds such a result untenable.

Because the Court concludes that (1) the declaratory judgment exception applies in this case, (2) being estopped from asserting ownership in the patents does not preclude Dr. Krauser from seeking correction of inventorship, and (3) Dr. Krauser's reputational interest confers Article III standing, only Defendant Evollution's challenge to personal jurisdiction remains. This challenge is comprised of two prongs: first, that Evollution is not subject to personal jurisdiction in Florida; and second, that rather than dismissing Evollution, the Court should exercise its discretion and transfer this action to the District of Delaware where both defendants are subject to personal jurisdiction.16 For the reasons that follow, the Court concludes that Evollution is not subject to personal jurisdiction in Florida, but the Court declines to exercise its discretion and transfer this action to the District of Delaware.

IV. Personal Jurisdiction

The exercise of personal jurisdiction by a federal district court in Florida over a nonresident defendant consists of a two-part inquiry: (1) whether Florida's long-arm statute permits service of process; and (2) whether the assertion of personal jurisdiction violates due process. See Fraser v. Smith, 594 F.3d 842, 846 (11th Cir. 2010).

Vision Media TV Grp., LLC v. Forte, 724 F.Supp.2d 1260, 1263-64 (S.D.Fla.2010) (citations omitted). The Court first turns to Florida's long-arm statute to determine whether a Florida court could exercise jurisdiction over Defendant Evollution in this case. See Fraser, 594 F.3d at 846 (citing Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 626-27 (11th Cir.1996)).

Dr. Krauser alleges that Evollution is subject to both specific and general personal jurisdiction in Florida. (Am. Compl. ¶ 3). The relevant provisions of Florida's long-arm statute provide:

Fla. Stat. § 48.193(1)(a), (2) (2013).

Dr. Krauser suggests that the Court can exercise (presumably specific) personal jurisdiction over Evollution because Evollution has purposefully availed itself of the privilege of conducting activities in Florida through its relationship with BioHorizons.17 According to Dr. Krauser, this "purposeful availment" arises out of out Evollution's licensing agreement with BioHorizons because the agreement "apparently extends beyond royalty or cross-licensing payment, including granting both parties the right to litigate infringement cases relating to the patents-in-suit and Evollution's authorizing [BioHorizons] to use its trademark in the marketing and distribution of the products...." (DE 47 at 19). The Court rejects Dr. Krauser's position.

Through a declaration of one of its officers, Evollution established, among other things, the following:

(DE 23: Dutil Decl. ¶¶ 3-19). This declaration sustained Evollution's burden of challenging Dr. Krauser's jurisdictional allegations, shifting the burden back to Dr. Krauser to "substantiate the jurisdictional allegations in the complaint by affidavits, testimony or documents." Dr. Krauser has failed to meet this burden because he has failed to produce any evidence in support of his jurisdictional claims.

The jurisdictional discovery conducted in this case supports the Court's conclusion. Dr. Krauser's initial request for this discovery was opposed by Evollution, but the parties ultimately agreed to limited discovery based on Dr. Krauser's opposition to Evollution's motion to dismiss. That discovery was to include the license agreement entered into between Defendants Evollution and BioHorizons, a related services agreement between those two companies, and copies of Evollution's certificate of incorporation and bylaws. (DE 49). A deposition of Evollution's officer, Mr. Dutil, was also to be conducted as part of the parties' agreement.

Upon completion of the jurisdictional discovery, Dr. Krauser advised the Court that "nothing further will be submitted by him, as regards the issue of personal jurisdiction over [Evollution]." (DE 51). Dr. Krauser elected not to depose Mr. Dutil, and the only discovery produced to the Court was the license agreement between Evollution and BioHorizons, which Dr. Krauser has failed to establish supports the exercise of personal jurisdiction over Evollution.

As to specific jurisdiction, Dr. Krauser has not shown that Evollution purposefully availed itself of the privilege of conducting activities in Florida through its relationship with BioHorizons because he has not shown that the licensing agreement — the only evidence produced — supports that contention. Of course, as to General jurisdiction, a connection between Evollution's activities and Dr. Krauser's cause of action is not required. Consol. Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1292 (11th Cir.2000). The "substantial and not isolated activity" requirement of the long-arm statute has been recognized by Florida courts as the functional equivalent of the continuous and systematic contact requirement for general jurisdiction under the Fourteenth Amendment Due Process Clause as discussed in Helicopteros Nacionales de Colombia S.A. v. Hall, 466 U.S. 408, 413-16, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); see Woods v. Nova Cos. Belize, Ltd., 739 So.2d 617, 620 (Fla.Dist.Ct.App. 1999); Achievers Unlimited, Inc. v. Nutri Herb, Inc., 710 So.2d 716, 720 (Fla.Dist.Ct App.1998). A finding that a defendant's activities satisfy section 48.193(2)'s requirements also necessitates a finding that minimum contacts exist. See Universal Caribbean Establishment v. Bard, 543 So.2d 447, 448 (Fla.Dist.Ct.App.1989). Therefore, the analysis of jurisdiction under section 48.193(2) and the Due Process clause merge.

As there is no requirement of a connection between the defendant's activities and the cause of action, the Due Process requirements are more stringent for general personal jurisdiction than for specific personal jurisdiction. For the former, Due Process requires a showing of substantial, persistent, continuous, and systematic business contacts between the defendant and the forum state. Helicopteros, 466 U.S. at 414 nn. 8, 9, 104 S.Ct. 1868; Ruiz de Molina v. Merritt & Furman Ins. Agency, Inc., 207 F.3d 1351, 1357 n. 4 (11th Cir.2000); Meier v. Sun Int'l Hotels, Ltd., 288 F.3d 1264, 1274 (11th Cir.2002). "The substantial connection between a defendant and the forum state must come about by an action of the defendant purposefully directed toward the forum state." Nida Corp. v. Nida, 118 F.Supp.2d 1223, 1229 (M.D.Fla.2000) (citing Asahi Metal Indus. Co. v. Superior Ct. of Cal., Solano Cty., 480 U.S. 102, 108-09, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987)). The defendant's contacts "must be so extensive to be tantamount to [a defendant] being constructively present in the state to such a degree that it would be fundamentally fair to require it to answer in [the forum state's courts] in any litigation arising out of any transaction or occurrence taking place anywhere in the world." Baker v. Carnival Corp., No. 06-21527-CIV-RUCK, 2006 WL 3360418, at *2 (S.D.Fla. Nov. 20, 2006) (citing Purdue Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 787 (7th Cir.2003)). Dr. Krauser has not provided any evidence that would support an exercise of general personal jurisdiction over Evollution.

The cases cited by Dr. Krauser do not support an opposite conclusion. In Dainippon Screen Mfg. Co., Ltd. v. CFMT, Inc., 142 F.3d 1266 (Fed.Cir.1998), for example, the federal circuit construed California's long-arm statute, which is "coextensive with the limits of due process" — so the court never had to analyze a more restrictive state long-arm statute. See id. at 1270. Of course, "Florida state courts have repeatedly held that the Florida statute requires more activities or contacts to sustain personal jurisdiction than demanded by the Constitution." Mallard v. Aluminum Co. of Canada, Ltd., 634 F.2d 236, 241 (5th Cir.1981).18 And in Breckenridge Pharmaceutical, Inc. v. Metabolite Laboratories, Inc., 444 F.3d 1356 (Fed.Cir. 2006), the requirements of subsection (1)(f) of Florida's long-arm statute were met because the out-of-state defendant licensor sent letters that could be construed as solicitations to Florida companies. See id. at 1361. Dr. Krauser cites Breckenridge for the proposition that a defendant licensor is subject to personal jurisdiction in the forum state "if the exclusive licensee (or licensee equivalent) with which it has established a relationship is not headquartered in the forum state, but nonetheless conducts business there." Id. at 1366; see also (DE 47 at 18). As Evollution correctly points out, however, that holding was directed to the due process analysis that followed the federal circuit's analysis of Florida's long-arm statute. Even if the Court accepted Dr. Krauser's argument, that acceptance would only compel a conclusion that the exercise of personal jurisdiction over Evollution comports with due process. Dr. Krauser has still failed to provide any support for the antecedent inquiry: whether the exercise of personal jurisdiction over Evollution comports with Florida's long-arm statute. In any event, the Court rejects Dr. Krauser's implicit suggestion that the Breckenridge holding even supports a conclusion that the exercise of personal jurisdiction over Evollution comports with due process.

In Breckenridge, the defendant licensor sent letters into the forum state (that the court presumed qualified as "cease and desist" letters); entered into an exclusive license with a company that, while not headquartered or incorporated in the forum state, conducted business there; granted the licensee the right to sue for patent infringement with written consent; agreed to "discuss in good faith the appropriate action, if any, with respect to third party infringers of [the licensed patents], and to cooperate reasonably in any enforcement actions"; granted the licensee "full control of the prosecution or maintenance" of any patent or application that the licensor abandoned or permitted to lapse and agreed to provide the licensee with an executed power of attorney for that purpose; and agreed to provide consultation to the licensee in the science, medicine, and marketing of related products from time to time. See id. at 1366-67. As the court described it, "[t]hat this exclusive license agreement not only contemplated an ongoing relationship between [the parties] beyond royalty payments but has actually resulted in such a relationship is obvious from the facts of this case." Id. at 1367 (emphasis in original). The facts of Dr. Krauser and Evollution's case do not compel the same result because Dr. Krauser has failed to establish that Evollution derives revenue from Florida through the license agreement or otherwise directs BioHorizons' activities.

Dr. Krauser's failure to establish that the statutory requirements for either specific or general personal jurisdiction have been met precludes the assertion of personal jurisdiction over Evollution under Florida's long-arm statute. Thus, the Court need not address whether Evollution's contacts with Florida satisfy the requirements of Due Process. See Fraser, 594 F.3d at 848.

V. Conclusion

Accordingly, it is hereby ORDERED AND ADJUDGED that Defendants' Joint Motion to Dismiss or Transfer (DE 45) is GRANTED in part and DENIED in part. The motion is granted to the extent that Defendant Evollution is dismissed for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2). The Court also concludes that the "interest of justice" does not require transferring this action to Delaware under 28 U.S.C. § 1406. See Goldlawr, Inc. v. Heiman, 369 U.S. 463, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962). The Court's lack of personal jurisdiction over Evollution is not a sufficient reason to require Dr. Krauser to proceed against Biohorizons — over which the Court does have jurisdiction — in another venue which Dr. Krauser may find inconvenient. The remainder of the motion is denied for the reasons set forth above.