Mobile Anesthesiologists Chicago LLC. v. Anesthesia Associates Of Houston Metroplex

• Decision Date: 01 October 2010
• Docket Number: No. 09-2658.,09-2658.
• Citation: 623 F.3d 440
• Parties: MOBILE ANESTHESIOLOGISTS CHICAGO, LLC, an Illinois limited liability company, Plaintiff-Appellant, v. ANESTHESIA ASSOCIATES OF HOUSTON METROPLEX, P.A., a Texas professional association, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

623 F.3d 440

MOBILE ANESTHESIOLOGISTS CHICAGO, LLC, an Illinois limited liability company, Plaintiff-Appellant,

v.ANESTHESIA ASSOCIATES OF HOUSTON METROPLEX, P.A., a Texas professional association, Defendant-Appellee.

No. 09-2658.

United States Court of Appeals,Seventh Circuit.

Argued April 2, 2010.

Decided Oct. 1, 2010.

Mark H. Barinholtz (argued), Chicago, IL, for Plaintiff-Appellant.

Cristina Y. Hernandez (argued), Carter Law Firm, Houston, TX, for Defendant-Appellee.

Before FLAUM, WOOD, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

Plaintiff Mobile Anesthesiologists Chicago is a company based in Chicago that contracts with medical offices to provide on-site anesthesia services. Defendant Anesthesia Associates of Houston Metroplex is a much smaller operation consisting of one doctor providing similar services in Houston, Texas. We refer to the parties as Mobile/Chicago and Mobile/Houston. Mobile/Chicago brought suit against Mobile/Houston in federal court in Illinois claiming that Mobile/Houston violated the federal anti-cybersquatting statute by registering a domain name confusingly similar to Mobile/Chicago's registered trademark. The district court dismissed the suit for lack of personal jurisdiction.

We affirm. First, we conclude that Mobile/Houston did not waive its personal jurisdiction defense by asking to delay a preliminary injunction hearing or by asking for expedited discovery to prepare for that hearing. Second, we agree with the district court that Mobile/Houston lacked the required “minimum contacts” with Illinois to support personal jurisdiction there. Mobile/Chicago relies principally on the inference that Mobile/Houston expressly aimed its conduct in Texas at harming Mobile/Chicago in Illinois. That inference is based on two inadequate connections between Mobile/Houston and Illinois: (1) Mobile/Houston's creation of a website accessible in Illinois but aimed only at the Houston market, combined with Mobile/Houston's constructive notice of Mobile/Chicago's trademark via federal registration of that mark; and (2) Mobile/Houston's receipt of Mobile/Chicago's cease-and-desist letter. These contacts are not sufficient to establish that Mobile/Houston's activities in Texas were calculated to cause harm in Illinois.

I. Factual and Procedural Background

Mobile/Chicago has been operating in the Chicago area since 1996. The company has affiliated offices in other cities, including Houston. The record does not reveal exactly when Mobile/Chicago's Houston affiliate began operations, but Mobile/Chicago alleges that it advertised its services in Houston in 2008.

In 2003, Mobile/Chicago registered the website , which it continues to operate today. Mobile/Chicago also owns a federally registered trademark in the words MOBILE ANESTHESIOLOGISTS. It obtained the trademark registration in 2005.

Mobile/Houston was established by Dr. Eric Chan, its sole member, in 2007. On August 22, 2008, Dr. Chan registered the website . Working under Mobile/Houston's name, Dr. Chan operates as an independent contractor providing anesthesia services for patients in clinics and medical offices throughout the Houston area.

Dr. Chan's professional activities are limited entirely to the state of Texas. He is licensed as an anesthesiologist by the State of Texas but has not been licensed in any other state. He has never advertised his services other than on his website (which offers anesthesia services “in the greater Houston area” and provides a Houston-area phone number) and in a printed advertisement published in Texas.

Dr. Chan has visited Illinois just once, on vacation in 2003. He has never visited Illinois for business, has never conducted business in Illinois, and has no agent or offices in Illinois. He has never attended events or performed duties in Illinois for any of the professional associations to which he belongs. And although he surely knew there were anesthesiologists in Illinois too, Dr. Chan was unaware that Mobile/Chicago, its trademark, or its website existed until he received a cease-and-desist letter from its lawyer in December 2008. There is no evidence that anyone else associated with Mobile/Houston has any relevant contacts with Illinois.

The district court dismissed Mobile/Chicago's suit for lack of personal jurisdiction. The court pointed out that Mobile/Houston lacks any meaningful contacts with Illinois and that its website, though bearing a name similar to Mobile/Chicago's, is not directed at Illinois in any way. The assertion that Dr. Chan, sitting in Houston, knew about Mobile/Chicago and intended to do it harm in Illinois, was “entirely unsupported” and an “empty conclusion.”

II. Waiver

Mobile/Chicago begins with the bold argument that Mobile/Houston waived its right to argue lack of personal jurisdiction when it asked for a continuance of the preliminary injunction hearing and an expedited discovery schedule. We disagree.

Mobile/Chicago filed its lawsuit in the Northern District of Illinois on February 13, 2009 and requested a preliminary injunction to stop Mobile/Houston's use of its domain name. The court scheduled a hearing for March 6, 2009. On March 3rd, Mobile/Houston's counsel filed a motion to continue the preliminary injunction hearing, which Dr. Chan could not attend because he was scheduled to see patients in Texas that day. The motion also requested expedited discovery to prepare for the hearing. Thirteen days later, on March 16, 2009, Mobile/Houston filed its Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction.

These preliminary actions do not come close to what is required for waiver or forfeiture. To waive or forfeit a personal jurisdiction defense, a defendant must give a plaintiff a reasonable expectation that it will defend the suit on the merits or must cause the court to go to some effort that would be wasted if personal jurisdiction is later found lacking. See, e.g., American Patriot Ins. Agency, Inc. v. Mutual Risk Management, Ltd., 364 F.3d 884, 887-88 (7th Cir.2004) (Rule 12(b)(3) defense of improper venue was not waived or forfeited when defendant engaged in preliminary pretrial litigation activity; plaintiff should have anticipated defendant's objection, and defendant was not “testing the wind” or causing “wasted motion by the court”). Faced with an impending preliminary injunction hearing and unable to produce its key witness, Mobile/Houston had the right to ask for more time to learn who was suing it and why without losing its right to object to personal jurisdiction. The district court did not err in proceeding to the substance of the personal jurisdiction defense.

III. Specific Jurisdiction

In a federal question case such as this one, a federal court has personal jurisdiction over the defendant if either federal law or the law of the state in which the court sits authorizes service of process to that defendant. Omni Capital International, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104-05, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987) (federal court should look to a federal statute or to the state long-arm statute to determine defendant's amenability to service, which is “a prerequisite to its exercise of personal jurisdiction”). The federal statutes on which Mobile/Chicago is suing do not authorize nationwide service. Mobile/Houston is amenable to service (and hence subject to personal jurisdiction) only if it could be served in Illinois under Illinois law. Illinois's long-arm statute permits the exercise of personal jurisdiction if it would be allowed under either the Illinois Constitution or the United States Constitution. See 735 Ill. Comp. Stat. 5/2-209(c). We have held that there is no operative difference between these two constitutional limits. See Tamburo v. Dworkin, 601 F.3d 693, 700 (7th Cir.2010); Hyatt International Corp. v. Coco, 302 F.3d 707, 715 (7th Cir.2002). We proceed to the question whether the exercise of personal jurisdiction would violate federal due process.

Under the Supreme Court's well-established interpretation of the Fourteenth Amendment's due process clause, a defendant is subject to personal jurisdiction in a particular state only if the defendant had “certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945), quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940). It is unconstitutional to force a defendant to appear in a distant court unless it has done something that should make it “reasonably anticipate being haled into court there.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). The Court has also framed the constitutional inquiry in terms of whether the defendant “purposefully avails itself” of the benefits and protections of conducting activities in the forum state. See Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958).

Personal jurisdiction can be general or specific, depending on the extent of the defendant's contacts. See Tamburo, 601 F.3d at 701. Mobile/Chicago does not assert, and the evidence does not support, a claim of general jurisdiction over Mobile/Houston in Illinois, so Mobile/Chicago must show that Illinois can exercise specific jurisdiction over Mobile/Houston for this particular claim. Specific personal jurisdiction is appropriate when the defendant purposefully directs its activities at the forum state and the alleged injury arises out of those activities. See, e.g., Burger King, 471 U.S. at 472, 105 S.Ct. 2174.

Mobile/Houston did not purposefully direct its activities at Illinois. It has formed no contracts in Illinois and has had no physical presence there. Mobile/Chicago points to the fact...