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B. Defendants' Motion to Dismiss for a Lack of Personal Jurisdiction

Next, Defendants argue that the Court lacks personal jurisdiction over them. The defense of personal jurisdiction must be raised in the first responsive motion or pleading or else it is waived. See FED. R. CIV. P. 1201)(1)(B). As mentioned in the Background section of this opinion, Defendants filed an answer to Plaintiff s complaint, as well as a number of other documents, before filing its motion to dismiss for lack of personal jurisdiction; Defendants clearly waived this defense.

Defendants argue in response that they are pro se litigants, and they should not be expected to know the minutiae of legal procedure as do lawyers. But, on this issue, the Court is not only bound by court rules, but it is also bound by Sixth Circuit precedent. See Rauch v. Day & Night MFG. Corp, 576 F.2d 697, 701 (6th Cir. 1978) ("Case law is unanimous in holding, both before and after enactment of the present court rule, that where a defendant files a pre-answer motion to dismiss or an answer, without raising the defense of a lack of in personam jurisdiction, he waives any objection to that defect."). Further, assuming arguendo that Defendants had not waived their personal jurisdiction defense, the Court would likely have personal jurisdiction over Defendants in this matter.

Note: Though Defendants' waived their personal jurisdiction defense on procedural grounds, their motion would be denied on the merits as well. The Sixth Circuit has established a three-part test to determine whether specific jurisdiction exists over a nonresident defendant: 1) the defendant must purposefully avail himself of the privilege of conducting activities within the forum state; 2) the cause of action must arise from the defendant's activities there; and 3) the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum state to make its exercise of jurisdiction over the defendant fundamentally fair. See Cole v. Mileti, 133 F.3d 433, 436 (6th Cir. 1998).

When deciding a motion to dismiss for lack of personal jurisdiction without holding an evidentiary hearing, the Court must view the pleadings and affidavits in the light most favorable to Plaintiff. See Dean v. Motel 6 Operating L.P., 134 F.3d 1269, 1272 (6th Cir. 1998). Plaintiff alleges that Defendants operated their www.theshopsatwillowbend.com website for the purpose of commercial gain. Taking that allegation at face value, Defendants availed themselves of the privilege of Michigan laws because the effect of the commercial use of their www.shopsatwillowbend.com website was felt in Michigan.

[I don't understand why the judge is willing to take Taubman's allegation that I operated my website for commercial gain "at face value" – despite the fact that there is absolutely no evidence for that allegation. (There is no evidence for the allegation, by the way, because the allegation is false.) In fact, as the judge himself notes later in his decision, Taubman is fond of making up allegations that have no basis in fact and for which they present not a shred of evidence.]

See Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D.Pa. 1997). In addition, Defendants noted on their www.shopsatwillowbend.com website that Plaintiff was a Michigan company. Further, a portion of the cause of action, namely the harm, arose in Michigan. Finally, it is fundamentally fair to allow Plaintiff to vindicate its rights in its home state. Therefore, Defendants motion would be denied on the merits, too.

Therefore, Defendants' Motion to Dismiss for Lack of Personal Jurisdiction is DENIED.

Next: Defendants' Motion for Change of Venue

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