647 F.3d 741 (8th Cir. 2011), 09-3672, Pangaea, Inc. v. The Flying Burrito LLC

Docket Nº:09-3672.
Citation:647 F.3d 741
Opinion Judge:NELSON, District Judge.
Party Name:PANGAEA, INC., Plaintiff/Appellant, v. The FLYING BURRITO LLC; Robert Moore, Defendant/Appellees.
Attorney:Mark Murphey Henry, argued, Adam L. Hopkins, on the brief, Fayetteville, AR, for appellant. Glenn Johnson, argued, Wendy K. Marsh, on the brief, Des Moines, IA, for appellee.
Judge Panel:Before LOKEN and COLLOTON, Circuit Judges, and NELSON,[*] District Judge.
Case Date:August 01, 2011
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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647 F.3d 741 (8th Cir. 2011)

PANGAEA, INC., Plaintiff/Appellant,

v.

The FLYING BURRITO LLC; Robert Moore, Defendant/Appellees.

No. 09-3672.

United States Court of Appeals, Eighth Circuit.

August 1, 2011

Submitted: March 15, 2011.

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[Copyrighted Material Omitted]

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Mark Murphey Henry, argued, Adam L. Hopkins, on the brief, Fayetteville, AR, for appellant.

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Glenn Johnson, argued, Wendy K. Marsh, on the brief, Des Moines, IA, for appellee.

Before LOKEN and COLLOTON, Circuit Judges, and NELSON,[*] District Judge.

NELSON, District Judge.

The issue in this diversity action is whether a federal court in Arkansas has personal jurisdiction over an Iowa citizen and an Iowa limited liability company where the contact with Arkansas was a single meeting by the parties in Arkansas. Appellant Pangaea, Inc. (Plaintiff), the owner of the federal trademark " The Flying Burrito Company," appeals the district court's 1 dismissal of its trademark infringement action for lack of personal jurisdiction.2 Plaintiff argues that the district court had jurisdiction over The Flying Burrito L.L.C. (" Flying Burrito" ) and Robert Moore (Defendants) because Moore and another business representative had traveled from Iowa, where their restaurant was located, to Arkansas on one occasion, in 2004, for the express purpose of obtaining permission from Plaintiff to use its trademark. Although acknowledging this only contact, Plaintiff also asserts that the district court erred in denying Plaintiff's request to conduct jurisdictional discovery. The district court dismissed the action for lack of personal jurisdiction, concluding that the contact with Arkansas was insufficient to permit the exercise of personal jurisdiction consistent with the Due Process Clause. We affirm.

Plaintiff, an Arkansas corporation, operates a restaurant named " The Flying Burrito Company" in Fayetteville, Arkansas. Its federal service mark of the same name was registered on January 11, 2005, with " first use" and " in commerce" dates of May 31, 2003. Defendant, Flying Burrito LLC, a limited liability company organized under Iowa law, operated a restaurant in Ames, Iowa under the name " The Flying Burrito." The Iowa restaurant opened in August 2004 and Defendant Robert Moore managed the restaurant from that date until August 2007. Moore is a citizen of Iowa.

Shortly after the Iowa restaurant opened, Matthew Goodman, the owner of the Iowa restaurant, became aware of Plaintiff's then-pending federal trademark application, which had been filed on January 7, 2004. Sometime in 2004 (either in the first three months of 2004, according to Plaintiff, or shortly after October 19, 2004, according to Defendants), Goodman and Moore traveled to Arkansas to meet with Plaintiff's owners seeking permission to use their trademark. Although it is clear that they did not obtain any such agreement, the parties dispute whether Plaintiff's owners expressly told Defendants that they could not use their mark. In any event, Defendants continued to use " The Flying Burrito" name.

On November 18, 2008, after demanding that Defendants cease use of " The Flying Burrito" name, Plaintiff commenced this diversity action for trademark infringement in the Western District of Arkansas. The district court granted Defendants' motion to dismiss for lack of

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personal jurisdiction. See Fed.R.Civ.P. 12(b)(2). We review that ruling de novo. Burlington Indus., Inc. v. Maples Indus., Inc., 97 F.3d 1100, 1102 (8th Cir.1996).

When jurisdiction is challenged on a pretrial motion to dismiss, the " nonmoving party need only make a prima facie showing of jurisdiction." Dakota Indus., Inc., v. Dakota Sportswear, Inc., 946 F.2d 1384, 1387 (8th Cir.1991). Where, as here, " the district court does not hold a hearing and instead relies on pleadings and affidavits, ... the court must look at the facts in the light most favorable to the nonmoving party, and resolve all factual conflicts in favor of that party." Id. (internal citations omitted). Because we conclude that Defendants have insufficient contacts with Arkansas to subject them to personal jurisdiction there consistent with due process, we affirm.

In a diversity suit, a federal court may exercise jurisdiction over a nonresident defendant only if the requirements of the forum state's long-arm statute are met and the exercise of jurisdiction comports with due process. See Burlington, 97 F.3d at 1102. Arkansas's long-arm statute provides for jurisdiction over persons and claims to the maximum extent permitted by constitutional due process. Id.; Ark.Code Ann. § 16-4-101.

In order to satisfy the due process clause, a defendant must have " minimum contacts [with the forum state] such that the maintenance of the suit does not offend ‘ traditional notions of fair play and substantial justice.’ " Int'l 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)). The defendant's " contacts" with the forum state generally must not arise due to mere fortuity, but must arise because the defendant has " purposefully availed" itself of the privilege of conducting activities in the state. Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); Digi-Tel Holdings, Inc. v. Proteq Telecomm., Ltd., 89 F.3d 519...

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