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WALKER v. CONCOBY

October 12, 1999

MORTON WALKER, D.P.M. DBA FREELANCE COMMUNICATIONS, PLAINTIFF,
v.
ROBERT CONCOBY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dowd, District Judge.

ORDER

This matter is before the Court on Defendants Leslie Nachman and Gordon Melcher's Motion to Dismiss for Lack of Personal Jurisdiction and Improper Venue (Doc. No. 4), Plaintiff's Opposition (Doc. No. 10), and Defendants' Reply (Doc. No. 14).

For reasons set forth below, the motion is DENIED.

I.

Defendants Leslie Nachman and Gordon Melcher move to dismiss themselves from this suit on the grounds that the Complaint fails to state a proper ground for personal jurisdiction, this Court lacks personal jurisdiction over them, and this Court is an improper venue.

Plaintiff Morton Walker, a podiatrist, author and citizen of Connecticut, initiated this action in April of 1999 alleging copyright infringement, plagiarism, fraud and conspiracy. Mr. Walker's contentions are that Defendants authored, published and distributed a report entitled "Olive Leaf Extract: Nature's Secret for Vibrant Health and Long Life," which plagiarized and infringed his book, "Nature's Antibiotic: Olive Leaf Extract." Mr. Walker had originally endeavored to write the book pursuant to a contract with East Park Research, Inc. ("EPRI") whereby he agreed to refer to an EPRI nutritional supplement called "Eden Extract." The contract was terminated after EPRI reviewed the labeling rules of the United States Food and Drug Administration. Returning his advancement, Mr. Walker published the book anyway and EPRI followed with publication of the accused report.

Messrs. Nachman and Melcher are, respectively, Vice-President and President of EPRI, which is alleged to have produced and published the report. Defendants East Park Distributing and David Nicol are located in Canton, Ohio and are alleged to have distributed the report. Defendant Robert Concoby, also of Canton, is alleged to have authored the report. According to affidavits submitted with their motion, Messrs. Nachman and Melcher, who are domiciled in Nevada, traveled to Ohio to negotiate with David Nicol and Robert Concoby. Other than this negotiation, Messrs. Nachman and Melcher claim to have had no other occasion to visit Ohio. They further claim that they have never individually conducted business in Ohio and do not maintain agents in Ohio. Plaintiff does not dispute these claims.

II.

Defendants' main argument in favor of dismissal is that this Court lacks personal jurisdiction over them. The plaintiff bears the burden of establishing personal jurisdiction. Weller v. Cromwell Oil Co. 504 F.2d 927, 929 (6th Cir. 1974). Where the defendant's motion to dismiss is supported by affidavits, the plaintiff normally must set forth specific facts showing the court has jurisdiction. Weller v. Cromwell Oil Co. 504 F.2d at 930. Here, however, the facts contained in the affidavits are undisputed; the question, then, is whether these facts, construed in a light favorable to plaintiff, make out a prima facie showing of jurisdiction. Market/Media Research, Inc. v. Union-Tribune Publishing Co. 951 F.2d 102, 104 (6th Cir. 1991) cert. denied, 506 U.S. 824, 113 S.Ct. 79, 121 L.Ed.2d 43 (1992); General Acquisition, Inc. v. GenCorp., Inc. 766 F. Supp. 1460, 1485 (S.D.Ohio 1990).

To gain personal jurisdiction over a defendant in a diversity action, plaintiff must make two-pronged showing that (1) the defendant is amenable to suit under the forum state's long-arm statute; and (2) due process requirements of the Constitution are met. CompuServe, Inc. v. Patterson 89 F.3d 1257, 1262 (6th Cir. 1996); National Can Corp. v. K Beverage Co. 674 F.2d 1134, 1136 (6th Cir. 1982).*fn1

As an initial matter, it is necessary to resolve the issue of whether Ohio's long-arm statute extends as far as notions of federal due process allow. If so, the two-pronged analysis of personal jurisdiction collapses into one and there is no need to examine Ohio's long-arm statute separately from the constraints of due process. Aristech Chem. Int'l Ltd. v. Acrylic Fabricators Ltd., 138 F.3d 624, 627 (6th Cir. 1998).

In Goldstein v. Christiansen 70 Ohio St.3d 232,  638 N.E.2d 541
(1994), the Ohio Supreme Court made it plain that Ohio's long-arm statute
and federal due process are not co-extensive. The court found "erroneous"
a lower court's statement that the General Assembly had intended to give
Ohio courts jurisdiction to the limits of the Due Process Clause. Id. at
238 fn. 1, 638 N.E.2d 541, quoting McCormac, Ohio Civil Rules Practice (2
Ed. 1992) 49, § 3.10 ("Ohio has not, extended the long-arm
jurisdiction to the limits of due process"), 4 Harper & Solimine,
Anderson's Ohio Civil Practice (Supp. 1993) 37, § 150.33, and 1 Casad
at 4-8 to 4-9, § 4.01[1][b]. The Ohio Supreme Court also pointed out
that the analysis of personal jurisdiction properly occurs in two parts.
Id.

On the strength of Goldstein, the court in Highway Auto Sales, Inc. v. Auto-Konig of Scottsdale, Inc. 943 F. Supp. 825 (N.D.Ohio 1996) recognized that Ohio's long-arm statute is not to be equated with the limits of federal due process. Id. at 828. Numerous other courts concur. See e.g. Cole v. Mileti 133 F.3d 433, 436 (6th Cir. 1998); LSI Industries, Inc. v. Hubbell Lighting, Inc., 64 F. Supp.2d 705, 706-07 (S.D.Ohio); Douglas v. Modern Aero. Inc. 954 F. Supp. 1206, 1210 (N.D.Ohio 1997); Hoover Co. v. Robeson Industries ...


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