The Christian Science Bd. v. Nolan

Citation259 F.3d 209
Decision Date06 April 2001
Docket NumberNo. 00-2322,No. 00-2270,No. 00-2321,00-2270,00-2321,00-2322
Parties(4th Cir. 2001) THE CHRISTIAN SCIENCE BOARD OF DIRECTORS OF THE FIRST CHURCH OF CHRIST, SCIENTIST; THE CHRISTIAN SCIENCE PUBLISHING SOCIETY, Plaintiffs-Appellees, v. DAVID J. NOLAN; UNIVERSITY OF CHRISTIAN SCIENCE, Defendants-Appellants, and DAVID E. ROBINSON; THE ROAN MOUNTAIN INSTITUTE OF CHRISTIAN SCIENCE AND HEALTH, Defendants. THE CHRISTIAN SCIENCE BOARD OF DIRECTORS OF THE FIRST CHURCH OF CHRIST, SCIENTIST; THE CHRISTIAN SCIENCE PUBLISHING SOCIETY, Plaintiffs-Appellees, v. DAVID J. NOLAN; UNIVERSITY OF CHRISTIAN SCIENCE, Defendants-Appellants, and DAVID E. ROBINSON; THE ROAN MOUNTAIN INSTITUTE OF CHRISTIAN SCIENCE AND HEALTH, Defendants. THE CHRISTIAN SCIENCE BOARD OF DIRECTORS OF THE FIRST CHURCH OF CHRIST, SCIENTIST; THE CHRISTIAN SCIENCE PUBLISHING SOCIETY, Plaintiffs-Appellees, v. DAVID J. NOLAN; UNIVERSITY OF CHRISTIAN SCIENCE, Defendants-Appellants, and DAVID E. ROBINSON; THE ROAN MOUNTAIN INSTITUTE OF CHRISTIAN SCIENCE AND HEALTH, Defendants. Argued:
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Appeals from the United States District Court for the Western District of North Carolina, at Asheville. Lacy H. Thornburg, District Judge.

(CA-99-148-1)

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] COUNSEL ARGUED: Brenda Ann Buan, MAHONEY, HAWKES & GOLDINGS, L.L.P., Boston, Massachusetts, for Appellants. Joseph H. Lessem, COWAN, LIEBOWITZ & LATMAN, P.C., New York, New York, for Appellees. ON BRIEF: Morris M. Goldings, MAHONEY, HAWKES & GOLDINGS, L.L.P., Boston, Massachusetts, for Appellants.

Before WILLIAMS, TRAXLER, and KING, Circuit Judges.

Affirmed by published opinion. Judge King wrote the opinion, in which Judge Williams and Judge Traxler joined.

OPINION

KING, Circuit Judge:

In these appeals, we are asked to evaluate the validity of the exercise of jurisdiction by the district court in the Western District of North Carolina over an Arizona defendant, based on that defendant's contributions to a website created and maintained by a North Carolina co-defendant. For the reasons that follow, we conclude that jurisdiction was proper and we affirm the district court.

I.
A.

Founded by Mary Baker Eddy in 1872, The First Church of Christ, Scientist ("TFCCS"), is a Boston-based religious organization with branches located throughout the world. TFCCS is governed by its Board of Directors (the "Board"), whose broad functions include ultimate supervision and control over the church's prolific publishing enterprise, The Christian Science Publishing Society. In furtherance of its religious mission, TFCCS provides a variety of products and publications, many of which bear federally registered and common law trademarks owned by the Board.

Defendants David Nolan and David Robinson are active Christian Scientists whose beliefs diverge in significant respects from those espoused and advanced by TFCCS.1 In February 1999, Nolan, a resident of Arizona, founded the University of Christian Science ("UCS") as an "electronic campus on the world wide web" which would allow present and potential Christian Scientists to "study the teachings of Mary Baker Eddy and to exchange ideas about Christian Science." J.A. 448. At that time, Nolan began developing the content of his intended online university. Lacking the technical expertise necessary to create and maintain a website, however, Nolan obtained the assistance of David Robinson of Bakersville, North Carolina, in the spring of 1999. Robinson secured a domain name for UCS and posted the files provided to him by Nolan on the newly created site.2 Following the website's creation, Nolan maintained close contact with Robinson and periodically sent revisions to the site's content, which Robinson posted to the UCS site. Thus, while Nolan apparently was solely responsible for drafting and making judgments regarding the content of the UCS website, it was Robinson who physically created and maintained the site from his North Carolina residence.

B.

On July 23, 1999, the Board filed a trademark infringement suit in the Western District of North Carolina against Robinson and Nolan and the two entities with which they were associated, The Roan Mountain Institute of Christian Science ("TRMI") and UCS, respectively. More specifically, the Board alleged, inter alia, that Nolan and UCS (collectively, the "Nolan Defendants"), without the Board's permission, used certain marks belonging to the Board, or marks "confusingly similar thereto," in printed materials and on the UCS website. The Board also alleged that the Nolan Defendants "have held themselves out as being affiliated with or sponsored by `The Official Academic Auxiliary of the Board of Education of the Church of Christ, Scientist.'" J.A. 30. In the Board's view, the Nolan Defendants included the terms "Church of Christ, Scientist" and "Board of Education of the Church of Christ, Scientist" in the content of the website and printed materials, knowing and intending that the use of such terms would likely cause confusion, and would mislead the public into believing that their products and services"emanate from, are approved, authorized or sponsored by, or are in some way associated with the Board and/or TFCCS." J.A. 31.

Although the Board's complaint and summons were promptly served on Robinson and TRMI, service of process on Nolan proved more difficult. After an unsuccessful attempt to effect service by certified mail, pursuant to Rule 4(j)(1)(c) of the North Carolina Rules of Civil Procedure, the Board retained the services of a private investigator to locate Nolan. The investigator determined that Nolan was residing in Modesto, California, and a process server was employed to serve Nolan at that location. The process server, however, was also unable to serve Nolan, and the Board, attesting that Nolan was actively evading service of process, sought leave to serve Nolan by publication, pursuant to Rule 4(j1) of the North Carolina Rules of Civil Procedure. The Magistrate Judge for the Western District of North Carolina granted such leave to the Board by order dated October 20, 1999, and notice was published in the November 16, November 23, and November 30, 1999 editions of The Modesto Bee (a newspaper of general circulation in Modesto, California).

As the Nolan Defendants failed to answer or otherwise respond to the Board's complaint, the Board moved the district court for entry of default judgment against them.3 By its Judgment ("Default Judgment") and accompanying Memorandum and Order entered on July 6, 2001, the district court determined that the Nolan Defendants had infringed certain of the Board's registered trademarks, in violation of the Lanham Act, 15 U.S.C. S 1114, and it permanently enjoined the Nolan Defendants from using those contested marks. The Board thereafter moved to have the Nolan Defendants held in contempt by the district court, maintaining that the Nolan Defendants had failed to comply with the injunction order. On September 6, 2000, the district court entered an order finding that, although the Nolan Defendants had received notice of the Default Judgment, they had violated and continued to violate its terms and provisions. Accordingly, the Nolan Defendants were ordered to appear on September 25, 2000, and to show cause, if they could, why they should not be adjudged in civil contempt of court.

Nolan at last mobilized to oppose the Board's motion for an order of contempt, asserting that the Default Judgment was void for lack of personal jurisdiction or, alternatively, for invalid service of process. The district court rejected both of these assertions by order entered on September 20, 2000; two days later, the court addressed the balance of Nolan's arguments for Rule 60 relief, concluding that no "exceptional circumstances" were present to justify setting aside the Default Judgment.4 Nolan immediately noticed an appeal to this Court from the September 20, 2000 order, and concurrently moved in the district court to stay enforcement of the injunction pending appeal.

Accordingly, at its September 25, 2000 contempt hearing, the district court considered the Nolan Defendants' motion for a stay, along with the Board's motion to find them in contempt of the Default Judgment. On October 4, 2000, the district court ruled in favor of the Board as to both motions. See Christian Science Bd. of Dirs. of the First Church of Christ, Scientist v. Robinson, 123 F.Supp.2d 965 (W.D.N.C. 2000). The district court held, more particularly, that its exercise of personal jurisdiction over the Nolan Defendants offended neither the North Carolina long-arm statute nor constitutional due process concerns. See id. at 971-76. Moreover, the district court ruled that the Nolan Defendants were unlikely to prevail on the merits of their Lanham Act challenge, i.e., their objections that the offending website did not satisfy the Act's requirement that the protected mark be used "in connection with the sale . . . distribution or advertising of any goods or services," and that, in any case, the website involved protected speech exempt from the Lanham Act's proscriptions. See id. at 969-71. Having affirmed the validity of the underlying Default Judgment, the district court then found the Nolan Defendants in continuing defiance thereof and held them both in civil contempt. See id. at 978. The Nolan Defendants timely appealed the district court's contempt order of October 4, 2000. We possess jurisdiction over these appeals -encompassing both the September 22, 2000 and October 4, 2000 orders -pursuant to 28 U.S.C. S 1291.

II.
A.

The fundamental question on appeal -whether the Nolan Defendants' contacts with North Carolina were sufficient to support the district court's exercise of personal jurisdiction-is a question of law which we review de novo. See Koehler v. Dodwell , 152 F.3d 304, 307 (4th Cir. 1998) (citation...

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