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 Civil Action No. 01-72987
 District Judge Zatkoff


On October 4, 2002, the Court denied defendants' motion to dismiss the copyright claim, Count IV, principally because the Court lacked personal jurisdiction over both defendants. The Court decided that the standard set by the Sixth Circuit in Neogen Corp. v. Neo Gen Screening, 282 F.3d 883 (6th Cir. 2002), does not apply in all Internet cases. Instead, the Court applied a rule derived from non-Internet cases such as Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985), and Calder v. Jones, 465 U.S. 783 (1984), that when a defendant commits an intentional violation of the rights of a resident of the forum, knowing the plaintiff to be a resident of the forum, the defendant must be held to be aware that the effect of his wrongdoing will be felt in the plaintiff's home state, and thus must reasonably anticipate being required to defend in the plaintiff's home state. The Court then took note of the fact that Mishkoff had copied the graphics from Taubman's web site, that a page on the "shopsatwillowbend.com" web site where Mishkoff had displayed the graphics identified Taubman as a resident of Michigan, and that defendants had exchanged correspondence with Taubman's outside counsel located in Michigan. The Court concluded that Mishkoff was necessarily aware that his violation of Taubman's rights would have effects on Taubman in Michigan.

  1. Respectfully, this analysis is factually flawed in a way that was unknown to defendants when they filed their motion to dismiss in April, 2002, and that plaintiff failed to bring to the Court's attention. Evidence obtained through discovery reveals that Taubman did not own the copyright at the time Mishkoff copied it, and hence his knowledge that Taubman is Michigan-based is irrelevant to the jurisdictional analysis.

    The amended complaint reveals, through the attached registration document, that Taubman claims ownership of the copyright through an assignment by its original owner, an entity described in the registration as "JPRA and Associates." In discovery on Count IV, defendants asked Taubman to identify all communications that established its ownership of the copyright, and Taubman responded by listing an assignment document, dated February 22, 2002. This date was long after Mishkoff copied the documents, and several months after the shopsatwillowbend.com web site was removed from the Internet as ordered by the Court. Accordingly, Mishkoff's knowledge that Taubman is based in Michigan is legally irrelevant to the issue of personal jurisdiction because Taubman did not own the copyright at the time he copied the graphics.

    Moreover, the attached affidavit by defendant Mishkoff reveals that he was unaware, until Taubman provided further discovery as ordered by Magistrate Judge Komives, that JPRA is an architectural firm, called "JPRA Architects," and that it is located in Michigan. That information was provided in late August 2002. Accordingly, although Mishkoff may have been infringing JPRA's copyright when he originally copied the graphics, Mishkoff was unaware that JPRA was a Michigan company, and thus jurisdiction cannot be sustained on that theory, either.

    Moreover, when a national or international business sues for a business tort, the plaintiff cannot establish that the defendant's tortious activity was expressly aimed at the forum simply by showing that the defendant knew that the forum was the plaintiff's principal place of business. Imo Industries v. Kiekert AG, 155 F.2d 254 (3d Cir. 1998). Rather, the defendant must "manifest behavior intentionally targeted at and focused on the forum", id. at 265, that is, the plaintiff must show that "the defendant knew that the plaintiff would suffer the brunt of the harm caused by the tortious conduct in the forum and point to specific activity indicating that the defendant expressly aimed its tortious conduct and the forum." Id. at 266.

    Although the Sixth Circuit has not passed on this holding, Chief Judge Becker's opinion for the Third Circuit states that it is in accord with the First, Fourth, Fifth, Eighth, Ninth and Tenth Circuits, and in conflict only with the Seventh Circuit. Id. at 265. Moreover, Imo Industries relied on the Sixth Circuit's decision in a defamation decision concerning a statement made in a press release about the failure of an international athlete who lived in Ohio to pass a doping test for a race in Monaco. In that case, the Sixth Circuit refused to allow suit to be brought in Ohio because Ohio was not the focal point of the press release. Reynolds v. IAAF, 23 F.3d 1110, 1119 (6th Cir. 1994). Imo followed Reynolds in deciding that Imo Industries could not sue in New Jersey over statements that Kiekert AG had made in letters sent to New York and Italy. 155 F.3d at 267.

    In this case, the alleged copyright infringement pertains to graphics, about a Texas shopping mall, that JPRA created in the course of its work as the architects of that Texas enterprise. Taubman itself used the graphics to publicize that shopping mall, and it is only Texas consumers who would have been interested in knowing what the mall would like. If there was any injury, it would be primarily located in Texas, not at the location of Taubman's corporate headquarters in Michigan. Inasmuch as defendants had no knowledge of any arguable nexus with the forum at the time of the actions that are the subject of this litigation, the showing required by Imo Industries cannot be met in this case.

  2. In addition to seeking dismissal of both defendants because of lack of personal jurisdiction, the motion sought dismissal of WebFeats under Rule 17, because it is a DBA with no separate legal existence, which therefore cannot be sued separately from Mishkoff. The Court's ruling on the motion to dismiss does not address this separate ground for dismissal, to which Taubman did not specifically respond in its opposition to the motion.


The motion for reconsideration of the motion to dismiss should be granted.

Respectfully submitted,

    Barbara Harvey (P25478)
    Suite 3060
    Penobscot Building
    645 Griswold
    Detroit, Michigan 48226
    (313) 963-3570

    Paul Alan Levy (DC Bar 946400)
    Allison M. Zieve (DC Bar No. 424786)
    Public Citizen Litigation Group
    1600 - 20th Street, N.W.
    Washington, D.C. 20009
    (202) 588-1000

    Attorneys for Defendants

October 18, 2002

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