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E. There Is No Personal Jurisdiction Over Defendants in Michigan.
Taubman's argument in favor of personal jurisdiction consists of citations to several district
court decisions, mostly from within this Circuit, and some appellate decisions from other circuits,
that supposedly stand for the proposition that a suit for misuse of a trademark in the Internet
context may always be brought in the district where the plaintiff is based and thus, in theory, may
suffer some injury. Taubman also argues that Calder v. Jones, 465 US 783 (1984), always allows
claims of intentional tort violation, such as trademark claims, to be brought in plaintiff's home
jurisdiction.
Taubman miscites many of the lower court cases.
[Note: The district court decision that was affirmed in Nissan Motor Co. v. Nissan Computer
Corp., 246 F3d 675 (CA9 2000) (table case), aff'g 89 FSupp2d 1154 (Taubman gives the wrong
case name), reveals that the basis for personal jurisdiction was that the defendant had entered into
Internet advertising contracts with five California companies. In Bancroft & Masters v. Augusta
National, 223 F3d 1082 (CA9 2000), jurisdiction was not based on the defendant's web site at all,
but on the defendant's having sent a cease and desist letter challenging the domain name belonging to
the California plaintiff. In Panavision v. Toeppen, 141 F3d 1316 (CA9 1998), the court agreed
that merely establishing a web site with a domain name using the plaintiff's trademark is not enough
to subject the defendant to personal jurisdiction, id. at 1322; the theory of the case was that
by writing letters to the plaintiff in California demanding $13,000 for a single domain name, the
defendant had become subject to jurisdiction there. Id. 1323. However, there is no allegation
that Mishkoff sent anything to Michigan about websites at issue here.]
More important, Taubman never shows how such decisions can overrule this Court's recent decision in
Neogen Corp. v. Neo Gen Screening, 282 F.3d 883 (2002). That decision squarely rules that the
maintenance of a passive website through which commercial transactions cannot be conducted, even a
passive site that employs the plaintiff's trademark, is not a sufficient basis for personal
jurisdiction in the plaintiff's home state. Although Taubman blithely characterizes Neogen as
"support[ing] a broad application of the personal jurisdiction test," TaubBrf.23, the decision does
not support personal jurisdiction based on a passive website.
Although Neogen does not discuss Calder v. Jones in holding that a passive website
does not constitute purposeful availment, other cases have expressly distinguished Calder on
the ground that it involved a print publication, of which a large number of copies were sold in the
forum state in addition to the fact that the allegedly defamatory article was about a resident of that
state. E.g., Cybersell v. Cybersell, 130 F3d 414, 420 (CA9 1997). The courts have consistently
treated Internet websites differently from print publications, whose sale can be more easily directed
to or kept away from particular fora. "Otherwise, every complaint arising out of alleged trademark
infringement on the Internet would automatically result in personal jurisdiction wherever the
plaintiff's principal place of business is located. That would not comport with traditional notions of
what qualifies as purposeful activity invoking the benefits and protections of the forum state."
Id. Indeed, under Keeton v. Hustler Magazine, 465 U.S. 770 (1984), the plaintiff can
choose to sue over a defamatory magazine article in a jurisdiction other than her home state, which a
plaintiff might do to take advantage of a peculiarity of local law, or, indeed, to impose greater
burdens on the defendant. If passive Internet websites are deemed analogous, it is apparent what the
chilling effect would be on use of the Internet for purposes of communicating opinions about
companies.
Taubman also asserts that "the brunt of the harm" is suffered in Michigan, but it introduced no
evidence that Michigan consumers were at all likely to be interested in a Texas mall. Moreover, its
argument about likelihood of confusion is based exclusively on the reaction of potential mall
visitors who are interested in such matters as the mall's opening hours or sales at the mall.
Thus, the contention that impact on "Michigan customers and investors" should be considered in the
personal jurisdiction analysis, TaubBrf. 17, is makeweight.
In defending the district court's decision that Mishkoff waived his objections to personal
jurisdiction while he was litigating this case pro se, Taubman relies on the district court's basis
for that ruling, that Mishkoff allegedly answered the complaint and filed motions to dismiss without
objecting to jurisdiction. However, Mishkoff's opening brief showed that these assertions are
factually erroneous, that the district court improperly failed to decide motions invoking its
discretion to amend any previous filings, and that as a pro se defendant Mishkoff should have any
waiver excused. MishBrf. 15-17. Other than an apparent effort to avoid the force of Haines v.
Kerner, 404 US 519 (1972), by implying that Mishkoff received assistance in opposing this lawsuit
from unspecified attorney relatives, TaubBrf.15 (and nothing in the record supports that contention),
Taubman does not respond to those arguments.
[Note: Taubman also suggests that opposing the preliminary injunction waived the personal jurisdiction
defense. However, the Federal Rules do not provide for a waiver in that fashion, and because a
preliminary injunction can be granted without personal service under Rule 65, Corrigan Dispatch Co.
v. Casa Guzman, 569 F.2d 300, 303 (5th Cir. 1978), it is apparent that proceedings on such a
motion are separate from responses to the complaint on the merits. Moreover, the denial of the motion
to dismiss was contained in the same order that granted the preliminary injunction against the "sucks"
site and contains the reasons for the injunction against the "shops" site that saves it from reversal
for failure to comply with Rules 52(a) and 65(d). See MishBrf. 25 n4. In any event, Mishkoff's
pro se status at the time of the initial preliminary injunction proceedings warrants recognition by
the court before a waiver of the right not to be sued in Michigan is imposed on him.]
CONCLUSION
The preliminary injunctions should be vacated.
Respectfully submitted,
Paul Alan Levy
Allison M. Zieve
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
Attorneys for Appellants
June 12, 2002
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