Licciardello v. Lovelady

• Citation: 544 F.3d 1280
• Decision Date: 10 October 2008
• Docket Number: No. 07-14086.,07-14086.
• Parties: Carman LICCIARDELLO, Plaintiff-Appellant, v. Rendy LOVELADY, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

544 F.3d 1280

Carman LICCIARDELLO, Plaintiff-Appellant, v. Rendy LOVELADY, Defendant-Appellee.

No. 07-14086.

United States Court of Appeals, Eleventh Circuit.

October 10, 2008.

M. Jean Holmes, Michael James King, Winters King & Associates, Inc., Tulsa, OK, for Plaintiff-Appellant.

Susan Tillotson Bunch, Gregg D. Thomas, Thomas & LoCicero, P.L., Tampa, FL, for Defendant-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before BIRCH, DUBINA and HILL, Circuit Judges.

HILL, Circuit Judge:

Carman Licciardello brought this action in the Middle District of Florida against Rendy Lovelady under the Lanham Act for trademark infringement and related claims arising out of Lovelady's allegedly unauthorized use of Licciardello's name, photograph, and apparent endorsement of Lovelady on a website. Lovelady, who resides in Tennessee, filed a Motion to Dismiss for Lack of Personal Jurisdiction, which the district court granted. Licciardello filed a timely notice of appeal. For the following reasons, we shall reverse.

I.

Carman Licciardello ("Carman") has been a nationally-known Christian musician and entertainer for over twenty-five years. From 2000 to 2001, Lovelady was employed by Carman as his personal manager and Lovelady managed Carman's concert tour during that year. The tour had live performances in approximately eighty major cities in the United States, including three or four in Florida. Lovelady accompanied the tour to Florida for those performances.

Under his agreement with Carman, Lovelady received commissions from Carman's gross income derived from catalogue record sales, from Carman's service contracts on specific items, including endorsement and sponsorship contracts, and his master recordings, musical compositions and other activities occurring during the contract. Carman terminated his contract with Lovelady at the end of 2001.

Carman alleges that Lovelady also managed several other artists who performed in Florida during this time period, including one group that performs regularly in Orlando, Florida. Lovelady was in Florida for these performances on three occasions in 2006 and 2007.

Carman alleges that in early 2006, Lovelady posted a website on the Internet that was accessible to the public in Florida that promoted Lovelady as a personal manager for music artists. The website used Carman's trademarked name and his picture, implying that Carman endorsed Lovelady's skill as a personal manager. The website offered CD's for sale that provided management advice and other career assistance.

Carman brought this action asserting trademark infringement by Lovelady. On motion, the district court dismissed the action for lack of personal jurisdiction. We review this dismissal de novo. Stubbs v. Wyndham Nassau Resort and Crystal Palace Casino, 447 F.3d 1357 (11th Cir. 2006).

II.

A federal district court in Florida may exercise personal jurisdiction over a nonresident defendant to the same extent that a Florida court may, so long as the exercise is consistent with federal due process requirements. See Fed.R.Civ.P. 4(e)(1), (h), and (k); Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 626-27 (11th Cir. 1996). If both Florida law and the United States Constitution permit, the federal district court may exercise jurisdiction over the nonresident defendant. Id.

1. The Florida Long-Arm Statute

The Florida "long-arm" statute permits the state's courts to exercise jurisdiction over nonresident defendants who commit certain specific acts. Fla. Stat. § 48.193. For example, § (1)(b) of the statute permits a Florida court to assert jurisdiction over any person who "commit[s] a tortious act within this state." Fla. Stat. § 48.193(1)(b).

Carman claims that jurisdiction over then nonresident Lovelady is appropriate under this section of the Florida statute. Carman argues that Lovelady's creation in Tennessee of a website containing an allegedly infringing and deceptive use of Carman's trademark is a tortious act "within this state" as contemplated by the statute because the injury from trademark infringement occurs where the holder of the mark resides—in this case, Florida. He relies upon Nida Corp. v. Nida, 118 F.Supp.2d 1223, 1231 (M.D.Fla.2000) (allegation of trademark infringement of Florida resident sufficient to trigger Florida long-arm statute). Accord JB Oxford Holdings, Inc. v. Net Trade, Inc., 76 F.Supp.2d 1363, 1368 (S.D.Fla.1999). Lovelady's response to this argument is limited to the contention that he did not commit any tort because he did not actually create the website; his employee did. He does not address the cases cited by Carman, nor make any argument about where the injury from the tort occurred, if there was one.

We have held that § 48.193(b) of the Florida long-arm statute permits jurisdiction over the nonresident defendant who commits a tort outside of the state that causes injury inside the state. Posner v. Essex Ins. Co., 178 F.3d 1209, 1216 (11th Cir. 1999) (adopting broad interpretation of long-arm statute by Florida courts that permits personal jurisdiction over nonresident defendant alleged to have committed a tort causing injury in Florida). Therefore, although the website was created in Tennessee, the Florida long-arm statute is satisfied if the alleged trademark infringement on the website caused injury in Florida.

We need not decide whether trademark injury necessarily occurs where the owner of the mark resides, as the Florida district courts have held, because in this case the alleged infringement clearly also occurred in Florida by virtue of the website's accessibility in Florida.¹ On motion to dismiss, and under our precedent, then, Carman's allegations in the complaint are sufficient to invoke the Florida long-arm statute.²

Having determined that the Florida long-arm statute authorizes jurisdiction over Lovelady, we must address whether the due process clause of the United States Constitution permits the statute to be employed in this case.

2. Constitutional Due process

Even though a statute may permit a state to assert jurisdiction over a nonresident defendant, the due process clause of the United States Constitution protects an individual's liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful "contacts, ties, or relations." International Shoe Co. v. Washington, 326 U.S. 310, 319, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The Constitution prohibits the exercise of personal jurisdiction over a nonresident defendant unless his contact with the state is such that he has "fair warning" that he may be subject to suit there. Shaffer v. Heitner, 433 U.S. 186, 218, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977) (Stevens, J., concurring in judgment). This "fair warning" requirement is satisfied if the defendant has "purposefully directed" his activities at residents of the forum, Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984), and the litigation results from alleged injuries that "arise out of or relate to" those activities. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). In this way, the defendant could have reasonably anticipated being sued in the forum's courts in connection with his activities there. Burger King, 471 U.S. at 472, 105 S.Ct. 2174 (quoting International Shoe, 326 U.S. at 316, 66 S.Ct. 154).

Even where a defendant has purposefully established constitutionally significant contacts within the forum state, jurisdiction must also be evaluated in light of several other factors to determine whether its exercise would comport with "fair play and substantial justice." International Shoe, 326 U.S. at 320, 66 S.Ct. 154. These factors include the burden on the defendant of litigating in the forum, the forum's interest in adjudicating the dispute, the plaintiff's interest in obtaining convenient and effective relief and the judicial system's interest in resolving the dispute. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). Where these factors do not militate against otherwise permitted jurisdiction, the Constitution is not offended by its exercise. Id.

Therefore, in order to determine whether the due process clause permits the exercise of personal jurisdiction over Lovelady, we must assess whether he has purposefully established such constitutionally significant contact with the state of Florida that he could have reasonably anticipated that he might be sued here in connection with those activities. If so, we must consider whether the forum's interest in this dispute and the plaintiff's interest in obtaining relief are outweighed by the burden on the defendant of having to defend himself in a Florida court.

A. Lovelady's contacts with Florida

Lovelady maintains that he has no constitutionally significant contacts with Florida. He has no office, no agents, no employees or property in Florida. His sporadic travel to Florida in connection with his management of Carman and other music groups, he argues, is both constitutionally insufficient and unrelated to this cause of action.³ Although apparently conceding that his website is related to Carman's claim,⁴ Lovelady contends that it not a sufficient contact upon which to predicate personal jurisdiction in Florida.⁵

As we have discussed above, the constitutional litmus test for personal jurisdiction is whether the defendant "purposefully established `minimum contacts' in the forum State.'" Burger King, 471 U.S. at 473-74, 105 S.Ct. 2174 (quoting International Shoe, 326 U.S. at 316, 66 S.Ct. 154). Jurisdiction may be constitutionally asserted over the nonresident defendant whenever he has by his own purposeful conduct created a "substantial connection" with the forum state. Id. at 475, 105 S.Ct. 2174. The Court has made clear, however, that "[s]o long as it creates a ...