The opinion of the court was delivered by: Dowd, District Judge.
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.
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
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[b]. The Ohio Supreme Court also pointed out
that the analysis of personal jurisdiction properly occurs in two parts.
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 Corp., 904 F. Supp. 671,
673 (N.D.Ohio 1995); Glasstech, Inc. v. TGL Tempering Systems, Inc.
50 F. Supp.2d 722, 725 (N.D.Ohio 1999).
This Court agrees with Highway Auto Sales — the analysis of the
scope of Ohio's long-arm statute "requires more than mere passing
reference." 943 F. Supp. at 828. However, despite the Ohio Supreme
Court's seemingly unequivocal statement in Goldstein, some courts have
continued to equate the analysis under Ohio's long-arm statute with that
under the Due Process Clause.*fn2 In CompuServe, Inc. v. Patterson, for
instance, the Sixth Circuit held that "it is settled law in Ohio . . .
that the "transacting business" clause of [the long-arm statute] was
meant to extend to the federal constitutional limits of due process. . .
." 89 F.3d at 1262. Support for this proposition is weak, however, since
CompuServe cites only pre-Goldstein federal
opinions and does not cite Goldstein at all.
The conclusion seems inescapable, then, that Ohio's long-arm statute is
not coextensive with federal due process. See e.g. Heritage Funding and
Leasing v. Phee 120 Ohio App.3d 422, 425, 698 N.E.2d 67 (1997); Corporate
Partners, L.P. v. Nat'l Westminster Bank PLC 126 Ohio App.3d 516, 524,
710 N.E.2d 1144 (1998). Therefore, when Ohio's long-arm statute is the
basis for personal jurisdiction, the personal jurisdiction analysis
requires separate discussions of whether the defendant is amenable to
suit under Ohio's long-arm statute and whether due process requirements
of the Constitution are met.
Under Ohio's long-arm statute, the exercise of jurisdiction over
Messrs. Nachman and Melcher is appropriate. The "transacting business"
clause in Ohio's long-arm statute is broader than the word `contract' and
encompasses `carrying on' business and `having dealings' within the
state. Kentucky Oaks Mall Co. v. Mitchell's Formal Wear, Inc.
53 Ohio St.3d 73, 75, 559 N.E.2d 477 (1990). Defendant's negotiation of
the distribution and authorship of the accused report constitutes a
"transaction" of business for purposes of Ohio's long-arm statute.
Kentucky Oaks Mall Co. v. Mitchell's Formal Wear Inc., 53 Ohio St.3d 73,
75, 559 N.E.2d 477 (1990) ("transact" means to "prosecute
Further, the fact that Defendants were physically present in Ohio
during these negotiations weighs strongly in favor of personal
jurisdiction, especially since Ohio's long-arm statute does not
necessarily require physical presence in the state. Hammill Mfg. Co. v.
Quality Rubber Products, Inc. 82 Ohio App.3d at 374, 612 N.E.2d 472;
Ucker v. Taylor 72 Ohio App.3d 777, 596 N.E.2d 507 (1991). Further,
Defendants must have engaged in numerous telephone, facsimile and other
communications to Ohio in order to facilitate the authorship and
distribution of the accused report, and these communications help
constitute a basis for ...