JANE TRICHE MILAZZO, District Judge.
Before the Court is a Motion to Dismiss for Lack of Personal Jurisdiction (Doc. 8). Additionally, the Court raises the issue of personal jurisdiction over Defendant, David Cox, sua sponte. For the following reasons, the Motion is GRANTED and this matter DISMISSED WITHOUT PREJUDICE for lack of personal jurisdiction.
Defendant David Cox is the managing member of Defendant Tech Talk America, LLC. Defendants operate a website called "PC Classes Online" ("the Website"). The Website offers classes on various computer-related topics to the general public free of charge. On January 1, 2014, Defendants posted a video on the popular website Youtube.com. This video, which was posted on the Website on January 2, 2014, purports to warn members of the public about the dangers of using a software program entitled "MacKeeper." MacKeeper is a software program marketed by a German corporation, Kromtech Alliance Corporation. Plaintiff is allegedly the U.S. subsidiary of Kromtech Alliance. Plaintiff claims that it holds a license to use the intellectual property of Kromtech Alliance in the United States. Plaintiff alleges that the video posted on the Website and Youtube is defamatory and that Defendants violated Louisiana's unfair competition laws in posting the video. Plaintiff seeks damages and a preliminary injunction ordering Defendants to remove the video. Tech Talk responded to the Complaint with the instant Motion, arguing that this Court lacks personal jurisdiction over it.
"Where a defendant challenges personal jurisdiction, the party seeking to invoke the power of the court bears the burden of proving that jurisdiction exists."
Jurisdiction over a non-resident defendant is proper when (1) the defendant is amenable to service of process under the long-arm statute of the forum state, and (2) the exercise of personal jurisdiction is consistent with the Due Process Clause of the Fourteenth Amendment.
"The Due Process Clause of the Fourteenth Amendment protects a corporation, as it does an individual, against being made subject to the binding judgments of a forum with which it has established no meaningful `contacts, ties, or relations.'"
"Minimum contacts" can be established through specific jurisdiction or general jurisdiction.
"If a nonresident defendant has sufficient related or unrelated minimum contacts with the forum, we must then consider whether the `fairness' prong of the jurisdictional inquiry is satisfied."
Before proceeding to the question of personal jurisdiction, the Court notes that only one of the two defendants, Tech Talk, has moved to dismiss this matter. The remaining defendant, Mr. Cox, has not yet been served. Nonetheless, the Court raises the issue of personal jurisdiction over David Cox sua sponte.
Because Plaintiff does not argue that the Court may exercise general personal jurisdiction over Defendants, the Court only analyzes the question of specific jurisdiction.
To establish specific personal jurisdiction, Plaintiff must prove that: "(1) there are sufficient (i.e., not `random fortuitous or attenuated') pre-litigation connections between the non-resident defendant and the forum; (2) the connection has been purposefully established by the defendant; and (3) the plaintiff's cause of action arises out of or is related to the defendant's forum contacts."
Plaintiff presents two separate, but related, arguments in favor of exercising personal jurisdiction over Defendants. First, Plaintiff argues that jurisdiction is present pursuant to the Supreme Court's decision in Calder v. Jones.
In Calder, the Supreme Court held that a California court could exercise personal jurisdiction over Florida residents who wrote and edited an allegedly defamatory article published in a magazine with national circulation.
The Fifth Circuit applied the Court's reasoning in Calder in the context of defamatory statements allegedly made on the internet in Revell v. Lidov.
On appeal, the Fifth Circuit held that there were several key differences between Revell and Calder that compelled a different result.
The instant matter is remarkably similar to Revell. The video about Kromtech contains no references to Louisiana, and there is no evidence that it was particularly directed at Louisiana. Indeed, Defendants contend, and Plaintiff does not contest, that they were unaware that Plaintiff existed or that it was domiciled in Louisiana when they posted the video. Louisiana was not the focal point of the video or the harm suffered. Rather, Defendants intended to target a German corporation. The only connection that this controversy has to Louisiana is that Plaintiff resides and allegedly suffered harm here. The Fifth Circuit explicitly stated in Revell that such contacts are not sufficient to support the exercise of jurisdiction.
Plaintiff argues that this case has a single difference from Revell: that it contacted Defendants after the video was posted and notified them that they were causing harm in Louisiana. Plaintiff seems to argue that, once Defendants knew about Kromtech USA and its presence in Louisiana, their decision not to remove the video demonstrated intent to aim the harm created by the video at Louisiana.
Plaintiff's argument asks this Court to hold that a passive act of a Defendant is sufficient to justify the exercise of personal jurisdiction. Plaintiff has not, however, cited a single case in which a court held that a defendant's failure to act, standing alone, created a contact with the forum state. Indeed, such a result would be inconsistent with the rule that a defendant's contacts must be purposefully directed at the forum state.
For the foregoing reasons, Defendant's Motion to Dismiss Tech Talk is GRANTED. Additionally, after raising the issue sua sponte, the Court finds that it does not have personal jurisdiction over David Cox. Accordingly, this matter is DISMISSED WITHOUT PREJUDICE for lack of personal jurisdiction.