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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.]


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

Next: Our Motion to Compel is Stricken

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