GARY R. JONES, United States Magistrate Judge.
Pending before the Court is the Motion of Defendants On Demand Books LLC and Jason Epstein to Dismiss for Lack of Jurisdiction. (Doc. 22.) Plaintiff has filed a response (Doc. 31) and therefore the motion is ripe for review. For the reasons discussed below, the motion is due to be
Plaintiff Victor Manuel Celorio, proceeding pro se, brought this suit alleging infringement by Defendants of his patent for an "Electronic Bookstore Vending Machine" that is directed to "a method and system for producing books on-demand." (Doc. 13.). In his Amended Complaint, Plaintiff alleges that On Demand Books LLC and Jason Epstein directly infringed his patent. Plaintiff also asserts direct and contributory infringement claims against Google, Inc. On Demand Books is a Delaware Corporation with its principal place of business in New York. (Doc. 22, Exh. 5.) Mr. Epstein, a resident of New York, founded the company in 2003 and is now Chairman. (Id., Exh. 6.) On Demand Books sells the Espresso Book Machine, a machine that prints books on demand. (Doc. 22, Exh. 5.)
Defendants On Demand Books and Mr. Epstein have moved to dismiss Plaintiff's Amended Complaint, contending that the action should be dismissed because the Court lacks personal jurisdiction under the Florida long-arm statute and constitutional due process requirements. In support of the motion, Defendants have submitted the affidavits of On Demand Books CEO Dane Neller and Mr. Epstein. (Doc. 22, Exhs. 5-6.) Mr. Neller attests that On Demand Books does not transact any business in Florida: it has not sold products, entered into contracts, installed products, or advertised in Florida. Further, On Demand Books is not registered to do business in Florida and has no assets in Florida. (Id. at Exh. 5.) Mr. Epstein attests that he is a resident of New York and has no relevant contacts with Florida. (Id. at Exh. 6.)
In his response, Plaintiff maintains that he has alleged sufficient allegations in the Amended Complaint to support the exercise of personal jurisdiction over Defendants. Plaintiff alleges that prior to the existence of On Demand Books, he corresponded with Mr. Epstein and had a business meeting with a partner of Mr. Epstein in Florida regarding his invention. Plaintiff also contends that the contractual agreement between On Demand Books and Google to permit Google's electronic books to be printed through Espresso Book Machine owners support the Court's exercise of personal jurisdiction over On Demand Books and Mr. Epstein. (Doc. 31.)
Plaintiffs initially must establish a prima facie case of personal jurisdiction over a nonresident defendant. "A prima facie case is established if the plaintiffs present sufficient evidence to defeat a motion for a directed verdict."
In determining whether the court has personal jurisdiction over a nonresident defendant the court employs a two-part analysis.
Because Florida law dictates the reach of the long-arm statute, this Court must interpret it in the same way that the Florida Supreme Court would.
Plaintiff relies on § 48.193(1) to argue that On Demand Books and Mr. Epstein have committed tortious acts — patent infringement
Because the due process analysis is dispositive of the personal jurisdiction issue, the Court will assume for the purposes of the instant motion that the "tortious conduct" portion of § 48.193(1) has been satisfied as to Defendants On Demand Books and Mr. Epstein.
Even if the conduct of On Demand Books and Mr. Epstein falls within Florida's long-arm statute, the Court must determine whether each individual defendant has sufficient minimum contacts with the forum to satisfy the due process requirements of the Fourteenth Amendment of the Constitution so that the exercise of personal jurisdiction does not offend "traditional notions of fair play and substantial justice."
The Eleventh Circuit utilizes a three-part test to decide whether there are sufficient minimum contacts:
Each defendant's contacts with the forum State must be assessed individually rather than simply viewing them collectively.
Plaintiff's argument for personal jurisdiction is premised on the sales offered through the Google Books website. Plaintiff explains in his opposition memorandum that computer users from around the world can access the Google Books web store, search for titles, and order print versions of the books. Customers have the books printed on Espresso Book Machines located at various bookstores, libraries and other locations where Espresso Book Machines are in operation. Plaintiff does not allege that any Espresso Book Machines operate in Florida, but alludes to On Demand Books' plans to install more of the machines, presumably in Florida. (Doc. 31.) In the system Plaintiff describes, Google Books offers to sell the product and the owner of the Espresso Book Machine fulfills the order. On
The instant case involves a personal jurisdiction analysis based on the Internet. The traditional principles guiding personal jurisdiction analysis are still applicable. District courts in the Eleventh Circuit have generally taken two approaches to personal jurisdiction analysis involving websites: the Zippo
The Zippo sliding scale is a website-tailored personal jurisdiction analysis that considers when a website can subject an entity to personal jurisdiction through assessing "the sufficiency of minimum contacts by measuring the degree of activity or passivity of the website."
Paralleling a sentiment shared by other circuits, other district courts in the Eleventh Circuit have been more critical of the Zippo sliding scale, preferring a broader traditional jurisdictional analysis.
Two district court cases involving facts similar to the instant case applied the traditional personal jurisdiction analysis to conclude that defendants were not subject to personal jurisdiction. In Roblor Marketing Group, Inc. v. GPS Industries, Inc., the Southern District of Florida analyzed a website that provided marketing links to the independent sites of resellers and distributors, where the defendant's products
In Instabook Corp. v. Instantpublisher.com, the Middle District of Florida found that personal jurisdiction did not exist for a defendant whose contacts consisted of two sales within the state and a website that facilitated these sales through a process entailing "the downloading of software, the transmission of a manuscript to the Defendant, and the shipment of the published books through the mail."
In the instant case, On Demand Books' website — which is accessible to all internet users and may also be visited by a Google Books customer seeking to print a book — does not support this Court's exercise of personal jurisdiction over On Demand Books under either the sliding scale or traditional analysis. Consumers cannot purchase products on the On Demand Books website. While they can click on links that take them to other websites to purchase books, this is insufficient to support minimum contacts. As the Middle District of Florida recently noted, "the fact that the website of a company that sells products in Florida can be reached via a link on Defendants' website is too narrow a thread on which to find meaningful `contact' for the purposes of due process."
Nor does On Demand Books' contractual relationship with Google provide a basis for this Court to exercise personal jurisdiction over On Demand Books. Personal jurisdiction must be established separately for each Defendant, and while Google has an agent in Florida and does business in Florida, jurisdiction for On Demand Books cannot be established based on Google's contacts with the forum. Plaintiff contends that On Demand Books is subject to personal jurisdiction by virtue of its business relationship with Google, which Plaintiff characterizes as a partnership. Defendants Google and On Demand Books have agreed to an independent contractor relationship, and to extend jurisdiction in Florida to any company that contracts with Google, an international
Plaintiff also asks the Court to exercise personal jurisdiction over Mr. Epstein, alleging that Mr. Epstein has sufficient contacts with Florida. In support of this contention, Plaintiff alleges that in 2000, prior to the existence of On Demand Books, Mr. Epstein's business partner, Michael Smolens, met with Plaintiff in Florida regarding the invention at issue. Plaintiff alleges that this business meeting was followed by phone calls and e-mails among Mr. Epstein, his business partner, and Plaintiff. Plaintiff contends that Mr. Epstein called him and invited him to New York for a business meeting. (Doc. 31.)
The contacts alleged by Plaintiff do not rise to the level of the minimum contacts required to comport with the Due Process Clause. A single telephone call several years ago inviting Plaintiff to New York is insufficient. Furthermore, the e-mails provided by Plaintiff in Exhibit T are e-mails from Michael Smolens and Frank Lehner. Mr. Epstein appears to have been copied on some of the e-mails, but Plaintiff does not provide e-mails from Mr. Epstein. Although Plaintiff attempts to impute Mr. Smolen's contacts in Florida to Mr. Epstein, there is no evidence in the record of their alleged partnership, and the e-mails from Mr. Smolens only once references Mr. Epstein, regarding a telephone conversation between Mr. Smolens, Mr. Epstein and "Victor." (Doc. 31, Exh. T.) Plaintiff also argues that personal jurisdiction over Mr. Epstein is warranted for the same reasons jurisdiction over On Demand Books is proper. As discussed in detail above, there are not sufficient contacts between On Demand Books and Florida to exercise personal jurisdiction; this argument also fails.
Even if Plaintiff could establish minimum contacts, exercise of jurisdiction over On Demand Books and Mr. Epstein would offend traditional notions of reasonableness and fairness. The Supreme Court articulated a five-factor test in Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), to determine whether jurisdiction is reasonable and fair: 1) "the burden on the defendant;" 2) "the forum State's interest in adjudicating the dispute;" 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 controversies," and 5) the "shared interest of the several States in furthering fundamental substantive policies."
Weighing the five Burger King factors, a Delaware limited liability company with no ties to Florida save a website that can be accessed in Florida tips the analysis against the reasonableness of exercising jurisdiction.
Plaintiff asserts that he has a right "to conduct discovery to elicit further jurisdictional facts." (Doc. 31, p. 3.) He offers no other support for his request and fails to explain what he thinks he could or should be discovered. Plaintiff has failed to show that the exercise of personal jurisdiction over Defendants On Demand Books and Mr. Epstein would be proper, and there is no genuine dispute over jurisdictional facts.
In view of the foregoing, it is respectfully
1. Defendants On Demand Books and Jason Epstein's Motion to Dismiss for Lack of Jurisdiction should be
2. Plaintiff's request for jurisdictional discovery should be