HAIGHT, Senior District Judge:
Plaintiff WorldCare Limited Corporation (herein "plaintiff" or "WorldCare") brings the present action against World Insurance Company (herein "defendant" or "World") for trademark infringement and unfair competition under the Lanham Act, 15 U.S.C. § 1051, et seq. Specifically, WorldCare seeks injunctive relief and damages against World due to its alleged infringement of WorldCare's federally registered trademark and name, "WORLDCARE."
Pending before the Court is defendant's Motion to Dismiss for Lack of Personal Jurisdiction Or, in the Alternative, Transfer of Venue to the District of Nebraska
Plaintiff WorldCare is a corporation incorporated under the laws of Bermuda with its principal place of business located at 7 Bulfinch Place, Boston, Massachusetts. Doc. # 1, p. 2 (¶ 5). During the last two decades WorldCare has been in the business of offering second opinion telemedicine services. Id., p. 1 (¶ 2). These services are offered "as part of a benefit under health insurance plans" and "allow patients to access second medical opinions from top hospitals and medical institutions in the United States."
Defendant World is a Nebraska corporation with its principal place of business located at 11808 Grant Street, Omaha, Nebraska. Id., p. 2 (¶6); see also Doc. # 22, p. 1, para. 3. Since 1903, World has conducted its business of "providing customers with high quality health insurance products and services under its `World' house mark," including basic medical, major medical, comprehensive major medical, short-term major medical, and dental insurance." Doc. # 22, p. 1, para. 3 to p. 2, para. 1; see also Declaration of Elizabeth Powell
World claims that it has issued 56,369 policies to residents throughout the United States, inclusive of its 29,596 WorldCARE policies.
WorldCare alleges that in early summer of 2009 it learned that World was selling health insurance products and services under the name "WorldCARE," thereby creating confusion in the marketplace. Specifically, WorldCare alleges that hospitals contacted WorldCare with questions about World's health plans, such as whether certain benefits were covered under the plans. Doc. # 1, p. 7 (¶ 30). On August 9, 2009, WorldCare demanded that World cease and desist using the WorldCARE name in commerce, but World refused. Doc. # 1, p. 7 (¶¶ 32, 35). World thus continues to use the name "WorldCARE" in connection with the sale of its goods and services. Id. (¶ 35).
This Court has "federal question" subject matter jurisdiction over plaintiff's trade infringement actions pursuant to 28 U.S.C. §§ 1331
In considering defendant's motion to dismiss or transfer, the Court will address the issue of whether it has personal jurisdiction over the defendant in detail below.
Defendant World moves this Court to dismiss the present trademark action on the ground that this Court lacks personal jurisdiction over it pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. Specifically, World claims that the U.S. District Court for the District of Connecticut may not properly exercise personal jurisdiction over World under Connecticut's long-arm statute, Conn. Gen. Stat. § 33-929(a), because World lacks the requisite "minimum contacts" with the state of Connecticut, the locus of this District. World claims that this Court's exercise of jurisdiction over it would violate the Fourteenth Amendment's constitutional guarantee of due process, thereby offending the traditional notions of "fair play and substantial justice."
Plaintiff WorldCare counters with the assertion that no exercise of long-arm jurisdiction
Given the parties' divergent approaches, the Court will examine each argument in turn before applying the proper analysis to the present facts.
Lack of personal jurisdiction is properly raised by a motion to dismiss. Fed.R.Civ.P. 12(b)(2).
For purposes of a Rule 12(b)(2) motion, the Court must accept the well-pleaded factual allegations contained in plaintiff's complaint as true and resolve all factual disputes in plaintiff's favor. Thomas v. Ashcroft, 470 F.3d 491, 495 (2d Cir.2006). Specifically, all allegations are to be construed in a light most favorable to the plaintiff and all factual disputes resolved in
"In a federal question case where the defendant resides outside the forum state, a federal court applies the forum state's personal jurisdiction rules." PDK Labs v. Friedlander, 103 F.3d 1105, 1108 (2d Cir.1997). This Court has federal question jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338 and 15 U.S.C. § 1121. The Lanham Act, 15 U.S.C. § 1051, et seq., under which plaintiff brings the present trademark infringement action, does not provide for national service of process. Therefore, the law of Connecticut, the place where the court sits, determines the jurisdictional reach of a Connecticut federal court sitting in a trademark infringement action. Fed.R.Civ.P. 4(k)(1)(a);
In order for this Court to exercise personal jurisdiction over defendant World, there must be an appropriate service of process, providing adequate notice of the claim, and an adequate basis for jurisdiction. In the present case, World does not contest that service was proper. Both parties agree that, on September 24, 2010, by delivering true and attested copies of the process (summons and complaint) to Thomas R. Sullivan, Insurance Commissioner of the State of Connecticut, WorldCare effected proper service on World's duly authorized agent to accept service. Doc. #11 (Return of Service); see also Conn. Gen.Stat. §§ 33-929(a) (registered agent of foreign corporation is corporation's agent for service of process), 38a-25(b), (d) (Insurance Commissioner is foreign insurer's designated agent for receipt of service of process). The issue in this case is thus not the propriety of the service, but rather the effect of that service: i.e., whether receipt of service by a foreign insurance company is sufficient in and of itself to constitute consent to personal jurisdiction, thereby obviating the need for this Court to employ the constitutional test of due process. The Court examines the conflicting views of the two parties.
WorldCare alleges that it has satisfied its burden to make a prima facie showing that this Court has personal jurisdiction over World based on the following facts. World is a foreign insurer licensed to do business in Connecticut. Pursuant to Conn. Gen.Stat. § 38a-25(b) & (d), World has irrevocably appointed the Connecticut Insurance Commissioner as its in-state
In support of its jurisdictional claims, WorldCare principally relies upon two cases, Burnham v. Superior Court of California, County of Marin, 495 U.S. 604, 617-18, 110 S.Ct. 2105, 109 L.Ed.2d 631 (1990) and Talenti v. Morgan and Brother Manhattan Storage Company, Inc., 113 Conn.App. 845, 855-56, 968 A.2d 933 (Conn.App.Ct.2009). Turning first to Burnham, WorldCare summarizes the holding of the United States Supreme Court with the generalization that "[i]t is black letter law that courts have personal jurisdiction over defendants who are served in state." Doc. # 29, p. 3 (Part I.A.); see also Id., p. 2, para. 1. ("`minimum contacts' analysis does not apply where defendant served in state or consented to suit in state"). Furthermore, "[a]mong the most firmly established principles of personal jurisdiction is that the courts of a State have jurisdiction over nonresidents who are physically present in the state." Id., pp. 3-4 (quoting Burnham, 495 U.S. at 610-11, 110 S.Ct. 2105).
The second case relied upon by WorldCare, Talenti v. Morgan and Brother Manhattan Storage Company, Inc., is a Connecticut Appellate Court decision upholding personal jurisdiction over a foreign corporation on the basis of personal service on its in-state executives. Plaintiffs Mr. and Mrs. Talenti filed a six-count complaint in Connecticut Superior Court against Mr. Talenti's former employer, Morgan and Brother Manhattan Storage Company ("Morgan") for damages arising from his allegedly wrongful termination.
On appeal, the Connecticut Appellate Court overturned the trial court's dismissal, holding that there were two alternate bases for personal jurisdiction over WorldCare.
The Court is unpersuaded that Burnham is controlling in the present case. Burnham, as plaintiff concedes, involved in-state personal service on an individual defendant. It did not address service upon a foreign corporation through service on a registered agent for service. Furthermore, there was no plurality opinion written in Burnham, suggesting that perhaps the holding should be limited to the particular facts set forth therein.
Specifically, the defendant in Burnham was a New Jersey resident who was visiting his children in California when he was personally served with his estranged wife's divorce petition and court summons. Focusing on the fact that he was personally served within the forum state, the California courts rejected his argument that the Due Process clause of the Fourteenth Amendment prohibited them from asserting personal jurisdiction over him.
The United States Supreme Court unanimously affirmed, but wrote three separate opinions. Justice Scalia, with whom three Justices concurred, reasoned that jurisdiction based on physical presence alone accords with due process under a continuing tradition of this country's legal system. 495 U.S. at 608-19, 110 S.Ct. 2105. Justice White, concurring with Justice Scalia but writing separately on this issue, found that the in-state service rule was not shown to be "so arbitrary and lacking in common sense" as to violate due process. Id. at 628, 110 S.Ct. 2105. Justice Brennan, with whom three Justices also concurred, applied a less rigid approach, finding that historical pedigree is merely one factor to consider in "establishing whether a jurisdictional rule satisfies due process." Id. at 629, 110 S.Ct. 2105. He thus mandated an independent review "into the fairness of the prevailing in-state service rule." Id. Justice Stevens, in a special concurrence, noted his concern that the other Justices' opinions had an "unnecessarily broad reach" but concluded that the "historical evidence . . . identified by Justice Scalia," "the considerations of fairness identified by Justice Brennan, and the common sense displayed by Justice White"
Where there was no majority opinion in Burnham, no complete consensus on the rationale behind upholding personal jurisdiction, and no foreign corporation involved, it would be remiss of this Court to rely on Burnham to cursorily discard "minimum contacts" due process analysis to evaluate personal jurisdiction over foreign corporations. The United States Supreme Court has not specifically addressed whether registration in a state alone is sufficient to confer general personal jurisdiction in light of its holding in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Moreover, the lower courts who have encountered the issue have taken widely divergent approaches to resolve the issue.
For example, the Eight and Fifth Circuits, who have addressed the issue, are split, having come to opposite and truly conflicting conclusions. See, e.g., Knowlton v. Allied Van Lines, Inc., 900 F.2d 1196 (8th Cir.1990) (under state law of Minnesota, a foreign corporation's appointment of agent for service of process equaled consent to personal jurisdiction, rendering due process analysis unnecessary);
Unless or until the United States Supreme Court or the Second Circuit speaks directly to the issue, I concur with the Fifth Circuit's well-reasoned opinion in Siemer v. Learjet Acquisition Corp. (herein "Learjet"), in which the Court surmised:
966 F.2d 179, 182-83 (5th Cir.1992) (emphasis added) (citing International Shoe, 326 U.S. at 316-19, 66 S.Ct. 154; Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 444-48, 72 S.Ct. 413, 96 L.Ed. 485 (1952)).
The Fifth Circuit clarified in Learjet that it had not previously and would not then hold that in-state service on a designated corporate agent without more satisfies due process. Because plaintiffs' cause of action did not arise out of Learjet's contacts with the forum state of Texas, it was incumbent on plaintiffs to shown that Texas had acquired general jurisdiction over Learjet. Rightfully citing Helicopteros Nacionales de Colombia, S. A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) as the pre-eminent Supreme Court case on general jurisdiction, mandating "systematic and continuous contacts," the Fifth Circuit concluded that Learjet's contacts with Texas were insufficient to satisfy the due process requirements of the Fourteenth Amendment. Learjet, 966 F.2d at 181-82.
As in the instant case, defendant Learjet was a foreign corporation licensed to do
The Court next examines Talenti v. Morgan and Brother Manhattan Storage Company, Inc., 113 Conn.App. 845, 968 A.2d 933 (Conn.App.Ct.2009), the Connecticut case upon which WorldCare relies to justify personal jurisdiction over World. In Talenti, the Connecticut Appellate Court appears to dispense with due process analysis for foreign corporations licensed to do business in Connecticut in a simple footnote. 113 Conn.App. at 856 n. 14, 968 A.2d 933. Prior to Talenti, the Connecticut Appellate Court had held that Conn. Gen.Stat. § 33-411(a) (now Conn. Gen.Stat. § 33-929(a)) made a foreign corporation amenable to service of process when it obtained authorization from the secretary of state to transact business within the state. Wallenta v. Avis Rent A Car System, 10 Conn.App. 201, 522 A.2d 820 (Conn.App.Ct.1987). In Wallenta, however, the court also recognized that "the next question to be resolved is whether the assertion of personal jurisdiction [over the defendant] offends due process." Wallenta, 10 Conn.App. at 208, 522 A.2d 820 (emphasis added). Because the trial court had granted the motion to dismiss without reaching "the issue of whether personal jurisdiction over the defendant corporation would offend due process on the basis of the facts," the court in Wallenta remanded to allow plaintiff "to establish facts sufficient to satisfy due process requisites." Id. at 208-09, 522 A.2d 820.
Talenti cites Wallenta but then summarily disposes of the due process analysis altogether in a footnote, pronouncing that service upon a foreign corporation's registered agent in the state equates with consent to jurisdiction and thus the court "need not undertake an analysis of any constitutional due process issues." Talenti, 113 Conn.App. at 856 n. 14, 968 A.2d 933.
This Court, however, has doubts regarding the intended scope of such consent. As stated supra, given this country's longstanding legal tradition of applying due process principles to evaluate personal jurisdiction over non-resident defendants, it seems unjust to expand consent to deem it binding where it would clearly violate due process. It is inherently unlikely that a foreign corporation transacting no business
Consent, by its very nature, constitutes "approval" or "acceptance." See, e.g., Black's Law Dictionary (9th ed. 2009) ("Agreement, approval, or permission as to some act or purpose, esp. given voluntarily by a competent person; legally effective assent."). "Consent" is meaningless unless its scope is defined. The law should sanction begging the core question: "Consent to or for what?" Granted, consent may be implied under certain circumstances, but the implication must be predictable to be fair. Expansive, non-explicit consent to being haled into court on any claim whatsoever in a state in which one lacks minimum contacts goes against the longstanding notion that personal jurisdiction is primarily concerned with fairness.
One may waive jurisdiction by not raising it or knowingly consenting to it, for example expressly by contract or implicitly in an agreement to arbitrate. See, e.g., Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703-04, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982). However, one must question whether the legislature of Connecticut intended that whenever a foreign corporation, in this case a foreign insurer, obtains a license to do business in Connecticut, it knowingly consents to jurisdiction for any claim whatsoever, regardless of the extent of its contacts with Connecticut. It would seem much more likely that the Connecticut legislature contemplated consent to encompass consent to service of process and to jurisdiction over matters which are constitutional under a due process analysis.
The Connecticut Supreme Court has not squarely addressed the issue of whether personal jurisdiction arising from consent in these circumstances must comply with due process.
Similarly, the Second Circuit and this District have adhered strictly to the standard of applying the "due process/minimum contacts" test as the second step whenever a foreign corporation has challenged personal jurisdiction. See, e.g., Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 164-65 (2d Cir.2010); Bensmiller v. E.I. Dupont deNemours & Co., 47 F.3d 79, 81 (2d Cir.1995); Metropolitan Life Insurance Co. v. Robertson-Ceco Corp., 84 F.3d 560, 567 (2d Cir.1996); Mallon v. Walt Disney World Co., 42 F.Supp.2d 143, 145-46 (D.Conn.1998); Hardy v. Ford Motor Car, 20 F.Supp.2d 339, 341-42 (D.Conn.1998); Combustion Engineering, Inc. v. Drayton Insurance Brokers, Inc., No. 3:93CV1712 (JBA), 1996 WL 824983, at *4 (Nov. 13, 1996); Teleco Oilfield Services, Inc. v. Skandia Ins. Co., 656 F.Supp. 753, 758-59 (D.Conn.1987).
In circumstances such as those present, in which the corporation had obtained a certificate of authority to transact business in Connecticut, this District has previously stated that Conn. Gen.Stat. § 33-929(a) is "merely a consent to service of process statute which is always subject to federal due process oversight." Mednet, MPC Corp. v. United Healthcare, No. 3:95cv2723 (AHN), 1996 U.S. Dist. LEXIS, at *14 (D.Conn. Aug. 15, 1996) ("section 33-411 (a) is a consent to service statute only" and "the assertion of jurisdiction over a foreign corporation which complies with Connecticut's domestication statutes must ultimately comport with due process"); accord Anderson v. Bedford Assoc., Inc., No. 3:97 CV 1018, 1997 WL 631117, at *3 (D.Conn. Sept. 19, 1997) ("amenability to service of process is different from activities sufficient to subject the company to personal jurisdiction").
As one commentator noted:
Lee Scott Taylor, Registration Statutes, Personal Jurisdiction, and The Problem of Predictability, 105 COL. L. REV. 1163, 1192 (June 2003). In the interest of fairness, a foreign corporation, or in this case alien insurer, that properly complies with the Connecticut registration statute should be deemed to have consented to personal jurisdiction only where such jurisdiction is otherwise constitutionally permissible. The court thus finds the well-reasoned opinions of this District (e.g., Mednet, Anderson, and USES) and the Fifth Circuit (Learjet) persuasive.
In support of its motion to dismiss for lack of personal jurisdiction, World argues that in order for a court to determine whether it has personal jurisdiction over a foreign corporation, such as World, it must conduct a two-tiered inquiry: (1) does the Connecticut long-arm statute, Conn. Gen. Stat. § 33-929(a) (2010),
World concedes in its brief that even if § 33-929(a), Connecticut's long-arm statute, were to apply in this case, World is encompassed by it in that it is a company registered to do business in Connecticut and has a certificate to do business. Doc. # 22, pp. 4-5 (citing Wallenta v. Avis Rent A Car System, 10 Conn.App. 201, 522 A.2d 820 (1987), for the proposition that where a foreign corporation complied with Connecticut's long arm statute, Conn. Gen. Stat. § 33-411(a) (currently § 33-929(a)), it was deemed to have "consented to jurisdiction by the courts of this state").
World then focuses on the second test, the "minimum contacts" prong of International Shoe, 326 U.S. at 316, 66 S.Ct. 154, to argue that it does not have the requisite minimum contacts with Connecticut to justify the exercise of personal jurisdiction. First, World argues there is no general jurisdiction over World in Connecticut because it possesses no "continuous and systematic general business contacts" in the state. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-16, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984).
World argues that, given the few contacts it has with Connecticut, this Court may not exercise general jurisdiction over it pursuant to the Helicopteros standard. Moreover, any such exercise of general jurisdiction would be contrary to the public policy of Connecticut. Doc. #33, p. 6, para 1 (citing Mednet, MPC Corp. v. United Healthcare, Inc., No. 3:95cv2723(AHN), 1996 U.S. Dist. LEXIS 22338, at *15-17 (D.Conn. Aug. 14, 1996)).
Similarly, World contends that this Court may not exercise specific jurisdiction over World as a foreign defendant because the present trademark action does "not arise out of or relate to" any of World's contacts with the forum.
Lastly, World applies the general "due process" test of determining whether the exercise of personal jurisdiction would comport with "fair play and substantial justice" and concludes that it would not. See Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 113, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987).
I find that, in designating Connecticut's Insurance Commissioner as its agent for service, World consented to receipt of service and jurisdiction over all matters which would not violate the Due Process clause of the Fourteenth Amendment. I thus agree with World that the application of due process analysis is justified.
Both parties agree that service was proper on World when WorldCare served the Insurance Commissioner. See Conn. Gen.Stat. §§ 38a-25(b), (d). The fact that service is proper does not, however, resolve the issue of whether plaintiff has established a sufficient basis for this court to exercise personal jurisdiction over World. "Whether jurisdiction in the sense of due process exists depends upon concepts of `fairness' and `convenience' and not upon mere compliance with procedural
As the Second Circuit recently held, two components to the due process analysis are undertaken to determine whether a foreign corporation is subject to the court's jurisdiction for commercial activity involving the forum state: "(1) the minimum contacts inquiry and (2) the reasonableness inquiry." Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 171 (2d Cir.2010) (citing Mario Valente Collezioni, Ltd. v. Confezioni Semeraro Paolo, S.R.L., 264 F.3d 32, 37-38 (2d Cir.2001)). "In determining the strength of the contacts under . . . the Due Process Clause, we look to the totality of Defendants' contacts with the forum state." Chloe, 616 F.3d at 164.
Under the principles set forth in International Shoe and its progeny, it is clear that World lacks sufficient contacts with Connecticut to satisfy due process requirements. As World asserted without contradiction in its memoranda and affidavits of Senior Vice President Powell, it has extremely attenuated contacts with this state. Although licensed to do business in Connecticut, World does not market or sell insurance products in Connecticut. Powell Dec. ¶ 5. It has no insurance agents in Connecticut; and, in fact, has never sold insurance policies in Connecticut.
Out of World's 59,369 insurance policies outstanding in the United States, only three bearing the WorldCARE mark are outstanding in Connecticut.
World's most substantial connection with Connecticut is that it obtained a certificate of authority to sell insurance here. Powell Dec. ¶ 5. However, it has never exercised that privilege. Id. As the Fifth Circuit observed, while "being qualified to do business may on its face appear to be significant, it `is of no special weight' in evaluating general personal jurisdiction." Learjet, 966 F.2d at 181 (quoting Ratliff v. Cooper Laboratories, Inc., 444 F.2d 745, 748 (4th Cir.), cert. denied, 404 U.S. 948, 92 S.Ct. 271, 30 L.Ed.2d 265 (1971)). After all, "[a]pplying for the privilege of doing business is one thing, but the actual exercise of that privilege is quite
In sum, given World's meager contacts with Connecticut, World lacks the requisite "minimum contacts" under International Shoe. These contacts thus provide neither general jurisdiction (i.e., there are no allegations or evidence of continuous or systematic business by World in the state);
Even had World possessed the requisite "minimum contacts" with Connecticut, personal jurisdiction over World would fail the "reasonableness test" because such jurisdiction does not comport with the "traditional notions of fair play and substantial justice" under International Shoe, 326 U.S. at 316, 66 S.Ct. 154. In analyzing whether it is reasonable to exercise personal jurisdiction in the circumstances of a particular case, the Supreme Court has held that courts must evaluate the following factors: (1) the burden that the exercise of jurisdiction will impose on the defendant; (2) the interests of the forum state in adjudicating the case; (3) the plaintiff's interest in obtaining convenient and effective relief; (4) the interstate judicial system's interest in obtaining the most efficient resolution of the controversy; and (5) the shared interest of the several states in furthering fundamental substantive social policies. Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 113-14, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987); see also Chloe, 616 F.3d at 164-65 (discussing factors); A.I. Trade Fin., Inc. v. Petra Bank, 989 F.2d 76, 83 (2d Cir. 1993) (same).
Second, Connecticut has no notable interest in litigating this claim. This case does not concern matters of Connecticut law, but rather federal trademark infringement statutes. See Lanham Act, 15 U.S.C. § 1501, et seq. Furthermore, according to the record, the case involves insurance policies that were all marketed and issued outside the state's borders. As previously noted, the only three World-CARE branded policies held by Connecticut residents were brought into the State after purchase.
Also of note is the fact that plaintiff is a foreign entity, a Bermuda corporation with its principal place of business located in Massachusetts. Connecticut therefore has no "manifest interest" in providing World-Care, a nonresident, with a convenient forum for relief from injuries caused by an out-of-state actor. See Burger King Corp., 471 U.S. at 473, 105 S.Ct. 2174.
Third, plaintiff WorldCare has established no significant convenience to itself in litigating in Connecticut. As stated supra, WorldCare is a Bermuda corporation with a principal place of business in Massachusetts. Granted, as WorldCare points out, Massachusetts is closer to Connecticut than it is to Nebraska. However, there are at least a dozen states that are closer in proximity to Massachusetts than Nebraska in which World admittedly sells its insurance products.
Fourth, the Court finds that the interstate judicial system's interest in obtaining the most efficient resolution of the controversy is no better served in Connecticut than in another forum. In evaluating this factor, "courts generally consider where witnesses and evidence are likely to be located." Metropolitan Life Ins. Co., 84 F.3d at 574. The Court thus notes that World contends that no relevant witnesses and documents are located in Connecticut; and WorldCare offers no countering statement.
Lastly, examining the shared interest of the several States in furthering fundamental substantive policies, I find that Connecticut's interest is no greater than that of another state in enforcing national trademark laws. Trademark infringement is of national concern, involving federal law, the Lanham Act, 15 U.S.C. § 1051 et seq. There is no particular reason that this trademark action would be more efficiently resolved in this District than in another. Rather, there are no known relevant witnesses or documents located in Connecticut; and none of the alleged misconduct giving rise to trade infringement appears to have occurred in Connecticut.
In sum, evaluating all reasonableness factors in this case, I find that it would not be reasonable to exercise personal jurisdiction. World's paltry contacts with Connecticut, when coupled with the factors set forth in Asahi, combine to confirm that the exercise of personal jurisdiction in this State over World would not comport with the traditional notions of fair play and substantial justice. While there appears to be a somewhat surprising absence of appellate authority on the point, I conclude without difficulty that the procedural provisions of Connecticut's authorized agent service statute cannot trump International Shoe's substantive principles of fairness and justice, grounded as they are in the United States Constitution. It inexorably follows that this Court does not have jurisdiction over the person of Defendant World Insurance Company.
Lacking personal jurisdiction over defendant World, under most circumstances,
Defendant has alternatively requested transfer of this action to the United States District Court for the District of Nebraska pursuant to 28 U.S.C. § 1404(a), in the interests of justice and for the convenience of the parties and witnesses.
Since the Court has held that World is not subject to personal jurisdiction in this District, venue does not lie here. However, cognizant of World's desire to transfer the case to the District of Nebraska, the Court will construe its motion to transfer as one "in the interest of justice" pursuant to 28 U.S.C. § 1406(a) (allowing transfer "in the interest of justice" when venue is improper).
Under 28 U.S.C. § 1406(a), a district court faced with an improperly filed case has the option of either dismissing the case or transferring it to "any district in which it could have been brought" if the transfer is "in the interest of justice." See, e.g., Carson Optical, Inc. v. Telebrands Corp., No. 3:06CV821(CFD), 2007 WL 2460672, at *5-6 (D.Conn. Aug. 27, 2007) (transfer under § 1406(a), rather than dismissal, held to serve the interest of justice); Bunn v. Gleason, 462 F.Supp.2d 317, 319-21 (D.Conn.2006) (same); U.S. ex rel. Smith v. Yale University, No. 3:02CV1205(PCD), 2006 WL 1168446, at *3 (D.Conn. April 28, 2006) (same); Sutton v. Rehtmeyer Design Co., 114 F.Supp.2d 46, 49 (D.Conn.2000) (appropriate authority for transferring a case when there is no proper venue in the transferor court is 28 U.S.C. § 1406). Rather than dismissing this case for lack of personal jurisdiction over World, the Court thus has the option to transfer it pursuant to § 1406(a).
The Supreme Court and Second Circuit have held that a district court has
"Whether dismissal or transfer is appropriate lies within the sound discretion of the district court." Minnette v. Time Warner, 997 F.2d 1023, 1026 (2d Cir.1993). A district court may transfer a case on a motion by either party or sua sponte on its own motion. See Concession Consultants, Inc. v. Mirisch, 355 F.2d 369, 371-72 n. 3 (2d Cir.1966) ("where the motion asks only that the suit be dismissed, the court may properly, sua sponte, order it transferred [pursuant to 28 U.S.C. § 1406(a)]").
In general, on a motion to transfer, the movant has the burden of justifying transfer of venue. Paragon Realty Group LLC v. Lecates, No. 3:06 CV 846(CFD), 2007 WL 419617, at *4 (D.Conn. Feb. 5, 2007); see also Carson Optical, Inc., 2007 WL 2460672, at *2 (party seeking transfer bears the burden of proving that it is appropriate and the court must weigh factors of convenience and fairness to assess the motion); Kodak Polychrome Graphics, LLC v. Southwest Precision Printers, Inc., No. 3:05-CV-330(MRK), 2005 WL 2491571, at *1, 2005 U.S. Dist. LEXIS 23359, at *2-3 (D.Conn. Oct. 7, 2005) (movant has burden to make a clear and convincing showing that transfer should be made); O'Brien v. Okemo Mountain, Inc., 17 F.Supp.2d 98, 104 (D.Conn.1998) (movant has burden to show relevant factors "strongly favor transfer").
Transfer is favored to remove procedural obstacles including the lack of personal jurisdiction. Minnette, 997 F.2d at 1027 ("functional purpose of 28 U.S.C. § 1406(a) is to eliminate impediments to the timely disposition of cases and controversies on their merits"); Corke v. Sameiet M.S. Song of Norway, 572 F.2d 77, 80 (2d Cir.1978) (transfer held in the interest of justice where one result was that it "would apparently enable appellant to obtain personal jurisdiction over some or all of the defendants"); Sinclair v. Kleindienst, 711 F.2d 291, 294 (D.C.Cir.1983) (transfer is favored to remedy "the lack of personal jurisdiction, improper venue and statute of limitations bars" and thereby permit adjudication on the merits); Danuloff v. Color Ctr., No. 93-CV-73478-DT, 1993 WL 738578, at *6 (E.D.Mich. Nov. 22, 1993) ("[T]he interest of justice is served when a case is transferred from a forum where there is a difficult question of personal jurisdiction to a district in which personal jurisdiction is clearly established.").
The Court next turns to the factors to be weighed when deciding whether to transfer: (1) the plaintiff's choice of forum, (2) the convenience of witnesses, (3) the location of relevant documents and relative ease of access to sources of proof, (4) the convenience of parties, (5) the locus of operative facts, (6) the availability of process to compel the attendance of unwilling witnesses, [and] (7) the relative means of the parties.
A review of the facts in this case makes clear that transfer, rather than dismissal, would serve "the interest of justice." First, plaintiff's choice of forum, although usually afforded significant deference, is "substantially diminished" where, as here, the corporate plaintiff did not file suit in its home base or state of incorporation. Lever Brothers Co. v. Procter & Gamble Co., 23 F.Supp.2d 208, 211 (D.Conn.1998) (dismissing action for improper venue because plaintiff was not a resident of the forum state, no events relating to the case occurred in Connecticut, few witnesses existed there, and only counsel resided in the state). Moreover, "when a plaintiff's claims are nationwide—as they are in this trademark infringement action —the mere fact that a plaintiff selects one forum over others does not, without more, entitle the plaintiff's choice to controlling weight." Zinky Electronics, LLC v. Victoria Amplifier Co., No. 09-cv-26 (JCH), 2009 WL 2151178, at *4 (D. Conn. June 24, 2009). See also Anadigics, Inc. v. Raytheon Co., 903 F.Supp. 615, 617 (S.D.N.Y.1995) (presumption in favor of plaintiff's choice of forum fails to apply where there is `little material connection' between the chosen forum and the facts or issues of the case). WorldCare is a Bermuda corporation with its principal place of business in Massachusetts. It has no known ties with Connecticut and has made
Second, the convenience of the known witnesses favors Nebraska. See, e.g., Intria Corp. v. Intira Corp., No. 00 CIV. 7198(AGS), 2000 WL 1745043, at *3 (S.D.N.Y. Nov. 27, 2000) ("convenience of witnesses may be the most important factor" in the transfer analysis). The two key witnesses named by World in the Powell Declaration, Thompson and Powell, both reside in Omaha, Nebraska. WorldCare, on the other hand, has named no specific witnesses or where they reside.
Third, World asserts that all of its documents are either at its headquarters in Nebraska, or at those of its parent corporation in Iowa. Granted, in the age of computers and faxes, document location is seldom determinative. Cody v. Ward, 954 F.Supp. 43, 47 n. 9 (D.Conn.1997) ("widespread use of facsimile equipment and overnight mail" reduce the burden on nonresidents of litigating in distant state). Nonetheless, as one additional factor, the location of the relevant documents weighs in favor of Nebraska.
Fourth, the overall convenience of the parties appears to favor Nebraska as the location of the witnesses, documents, and operative facts giving rise to the claim. Any particular inconvenience to World-Care by litigating in Nebraska has not been established.
Fifth, regarding the locus of operative facts, it does not appear that the actions constituting trademark infringement occurred in Connecticut. See, e.g., MAK Marketing, Inc. v. Kalapos, 620 F.Supp.2d 295, 310 (D.Conn.2009) ("The locus of operative facts is an important factor to be considered in deciding where a case should be tried."); A Slice of Pie Productions, LLC v. Wayans Bros. Entertainment, 392 F.Supp.2d 297, 306 (D.Conn.2005) ("The location of operative facts underlying a claim is a key factor in determining a motion to transfer venue."). Rather, World's Senior Vice President Powell has declared that no communications containing the WorldCare brand name are made once an insurance policy has been issued. The three WorldCARE branded policies outstanding to Connecticut residents were not marketed or sold in Connecticut. They were issued prior to the policyholders' move to Connecticut. Therefore, according to Powell's sworn affidavit, there has been no use of the WorldCARE brand with respect to the policyholders residing in Connecticut since their arrival in the state (i.e., it is unlikely that any actions occurring within the state of Connecticut will bear on plaintiff's claim).
In sum, the overall balance of interests weighs in favor of transferring the case to the District of Nebraska. Personal jurisdiction over World exists in Nebraska; and venue is proper there. The case shall thus be transferred to the United States District Court for the District of Nebraska.
I hold that on the basis of the record before this Court, WorldCare has failed to satisfy its burden to demonstrate that this Court may exercise personal jurisdiction over defendant World. Although World-Care's service of process upon the Insurance Commissioner of Connecticut was proper service, World's scant total contacts with the forum of Connecticut fail to satisfy the "minimum contacts" test of the due process clause. When combined with an analysis of the Supreme Court's reasonableness factors in Asahi, the paucity of these contacts compels the conclusion that this Court's exercise of personal jurisdiction over World would offend the "traditional notions of fair play and substantial justice" under International Shoe.
Rather than granting World's Motion to Dismiss for Lack of Personal Jurisdiction (Doc. # 21), however, this Court concludes that, "in the interest of justice," pursuant to 28 U.S.C. § 1406(a), the case should be transferred to the United States District Court for the District of Nebraska. In addition to curing the problem of personal jurisdiction, key factors such as convenience and availability of the known witnesses, location of the relevant documents, and locus of the operative facts warrant transfer to Nebraska, where venue is proper. Pursuant to 28 U.S.C. § 1406(a), the Court hereby DENIES World's Motion to Dismiss (Doc. # 21) and GRANTS World's alternative Motion to Transfer (Doc. #21).
It is SO ORDERED.
28 U.S.C. § 1338(a) (emphasis added).
15 U.S.C. § 1121(a).
Although, in the absence of a hearing, a plaintiff need only make a prima facie showing that the court has personal jurisdiction over the defendant to defeat the motion, if challenged at trial, the plaintiff must eventually prove jurisdiction by a preponderance of the evidence. United States v. Montreal Trust Co., 358 F.2d 239, 242 n. 4 (2d Cir.), cert. denied, 384 U.S. 919, 86 S.Ct. 1366, 16 L.Ed.2d 440 (1966). See also Credit Lyonnais Sec. USA, Inc. v. Alcantara, 183 F.3d 151, 154 (2d Cir.1999) (eventually plaintiff must prove the jurisdictional facts by a preponderance of the evidence at either an evidentiary hearing or trial); Marine Midland Bank N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981); 2A J. Moore, Federal Practice, ¶ 12.07[2.-2] n. 4 (2d ed. 1988).
Fed.R.Civ.P. 4(k)(1)(A).
(Emphasis added).
For cases dispensing with the use of minimum contacts, cf. Knowlton v. Allied Van Lines, Inc., 900 F.2d 1196, 1199-1200 (8th Cir.1990) (under state law of Minnesota, a foreign corporation's appointment of agent for service of process equaled consent to personal jurisdiction, rendering due process analysis unnecessary); Bane v. Netlink, Inc., 925 F.2d 637, 640-41 (3d Cir.1991) (registration constituted consent to suit on any cause of action and sufficient contacts to support exercise of general jurisdiction); accord Sadler v. Hallsmith SYSCO Food Services, Civil No. 08-4423 (RBK/JS), 2009 WL 1096309, at *1-2 (D.N.J. April 21, 2009); Continental Casualty Co. v. American Home Assurance Co., 61 F.Supp.2d 128, 129-30 (D.Del.1999); Wheeling Corrugating Co. v. Universal Constr. Co., Inc., 571 F.Supp. 487, 488 (N.D.Ga. 1983); In re FTC Corporate Patterns Report Litig., 432 F.Supp. 274, 286 (D.D.C.1977).
(Emphasis added).
Moreover, pursuant to Conn. Gen.Stat. § 33-920, "[n]o insurance, surety or indemnity company "shall transact business in this state until it has procured a license from the Insurance Commissioner." See Conn. Gen. Stat. §§ 33-920, 38a-41. All "foreign and alien" insurers who apply for such a license are deemed to have appointed the Insurance Commissioner as agent for receipt of service of process. Id. § 38a-25(b).
