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Tradesmen International, LLC v. Tradesmen Staffing, LLC

United States District Court, N.D. Ohio, Eastern Division

June 16, 2017

TRADESMEN INTERNATIONAL, LLC, PLAINTIFF,
v.
TRADESMEN STAFFING, LLC, DEFENDANT.

          MEMORANDUM OPINION

          HONORABLE SARA LIOI UNITED STATES DISTRICT JUDGE.

         Before the Court is defendant's Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, along with a supporting brief filed separately. (Doc. Nos. 30, 31[1] [collectively, “Mot.”].) Plaintiff filed a brief in opposition (Doc. No. 32 [“Opp'n”]), and defendant filed a reply (Doc. No. 33 [“Reply”]). For the reasons discussed herein, the motion is granted.

         I. BACKGROUND

         On July 9, 2015, plaintiff Tradesmen International, LLC (“Tradesmen” or “plaintiff”) filed its complaint against defendant Tradesmen Staffing, LLC (“Staffing” or “defendant”) alleging trademark infringement, false designation of origin, unfair competition, and unjust enrichment. (Doc. No. 1, Complaint [“Compl.”].) Staffing is an Idaho limited liability company with its principal place of business in Twin Falls, Idaho, where its registered agent for service of process is also located. (Id. ¶¶ 3, 4.)

         Tradesmen's complaint alleges that Tradesmen “is engaged in the business of providing labor staffing strategies including [temporary] employment placement services for skilled workers [in interstate commerce].” (Id. ¶¶ 7, 9.) Tradesmen owns a certain registered trademark and design that it has used continuously in connection with this business. (Id. ¶¶ 8, 9, 10.)

         Tradesmen alleges that Staffing is using an infringing mark (“a colorable imitation” of plaintiff's mark) in connection with a similar temporary employment placement service that it operates online via a website. (Id. ¶¶ 15, 16, 18.) On or about January 20, 2015, Tradesmen gave written notice to Staffing that its use of the mark TRADESMEN STAFFING creates a significant likelihood of confusion, and demanded that Staffing desist in its use of that mark. (Id. ¶ 19; Ex. 4.) Staffing has allegedly continued to use the mark. (Id. ¶ 20.)

         Initially, after Staffing failed to move or otherwise plead in response to the complaint, the clerk noted the default on November 5, 2015. (Doc. No. 12.) Plaintiff moved for default judgment (Doc. No. 14), but before the Court could rule on that motion, defendant made a special appearance (see Doc. No. 16), and moved to set aside the default (Doc. No. 17). Thereafter, the parties indicated that they were attempting a “business resolution” and sought an extension of time for briefing on the pending motions; this motion was granted, with directions for proceeding should there be no resolution. (See Doc. Nos. 20, 21.)

         The parties failed to resolve the case. On September 16, 2016, the Court granted defendant's motion to set aside the entry of default. The Court denied without prejudice defendant's request for dismissal for lack of personal jurisdiction. (See Doc. No. 28.) The parties then declined the Court's invitation to engage in mediation. The instant motion to dismiss under Rule 12(b)(2) followed and is now ripe for resolution.

         II. DISCUSSION

         A. Legal Standard - Generally

         “The party seeking to assert personal jurisdiction bears the burden of demonstrating that such jurisdiction exists.” Bird v. Parsons, 289 F.3d 865, 871 (6th Cir. 2002) (citing Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 887-88 (6th Cir. 2002)). “[I]n the face of a properly supported motion for dismissal, the plaintiff may not stand on his pleadings but must, by affidavit or otherwise, set forth specific facts showing that the court has jurisdiction.” Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir. 1991) (citation omitted); see also Am. Greetings Corp. v. Cohn, 839 F.2d 1164, 1168-69 (6th Cir. 1988) (requiring that plaintiff “demonstrate facts which support a finding of jurisdiction in order to avoid a motion to dismiss”) (citations omitted)).

         Where, as here, the Court addresses the Rule 12(b)(2) jurisdictional question without an evidentiary hearing, relying solely on affidavits, “the plaintiff must make only a prima facie showing that personal jurisdiction exists in order to defeat dismissal.” Theunissen, 935 F.2d at 1458 (citations omitted).[2] “[T]he pleadings and affidavits . . . are received in a light most favorable to the plaintiff.” Id. at 1459 (citations omitted). “In sharp contrast to summary judgment procedure, however, the court disposing of a 12(b)(2) motion does not weigh the controverting assertions of the party seeking dismissal.” Id. (citing Serras v. First Tennessee Bank Nat'l Ass'n, 875 F.2d 1212, 1214 (6th Cir. 1989) (further citation omitted)). This rule was adopted in Serras “in order to prevent non-resident defendants from regularly avoiding personal jurisdiction simply by filing an affidavit denying all jurisdictional facts[.]” Id. “Dismissal [is] only proper if all of the specific facts [plaintiff] alleged collectively failed to state a prima facie case for jurisdiction under the appropriate standards.” Id.

         The Court, in its discretion, chooses to decide this motion on the basis of the factual allegations in the complaint, taken as true, and upon the affidavits submitted by the parties, [3]construed in plaintiff's favor.

         B. Personal Jurisdiction

         To meet its burden of establishing personal jurisdiction, plaintiff must show both (1) that the defendant is amenable to service of process under Ohio's long-arm statute; and (2) that the exercise of personal jurisdiction would not deny the defendant due process. See Theunissen, 935 F.3d at 1459 (diversity); Bird, 289 F.3d at 871 (federal question). Courts often begin with the due process considerations, “recognizing that a defect of this type would foreclose the exercise of personal jurisdiction even where a properly construed provision of the long-arm statute would otherwise permit it.” Theunissen, 935 F.2d at 1459.

         In this case, because the due process considerations are dispositive of the motion to dismiss, the Court need not address the ...


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