American Wholesalers under. v. American Wholesale

• Decision Date: 30 March 2004
• Docket Number: No. 3:02CV1793(DJS).,3:02CV1793(DJS).
• Citation: 312 F.Supp.2d 247
• Parties: AMERICAN WHOLESALERS UNDERWRITING, LTD., Plaintiff, v. AMERICAN WHOLESALE INSURANCE GROUP, INC., Defendant.
• Court: U.S. District Court — District of Connecticut

Page 247

312 F.Supp.2d 247

AMERICAN WHOLESALERS UNDERWRITING, LTD., Plaintiff, v. AMERICAN WHOLESALE INSURANCE GROUP, INC., Defendant.

No. 3:02CV1793(DJS).

United States District Court, D. Connecticut.

March 30, 2004.

COPYRIGHT MATERIAL OMITTED

Carrie L. Larson, Richard Slavin, Stewart I. Edelstein, Cohen & Wolf, P.C., Bridgeport, CT, for Plaintiff.

Alan R. Dickinson, D. Blaine Sanders, Robinson, Bradshaw & Hinson, PA, Charlotte, NC, David S. Samuels, Frank F. Coulom, Jr., Robinson & Cole, Hartford, CT, for Defendant.

MEMORANDUM OF DECISION

SQUATRITO, District Judge.

Plaintiff, American Wholesalers Underwriting, LTD. ("AWUL"), brings this action against defendant, American Wholesale Insurance Group ("AWIG"), based upon Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a)(1), Connecticut common law, and the Connecticut Unfair Trade Practices Act ("CUTPA"), Conn. Gen.Stat. §§ 42-110a et seq. Defendant has filed a motion to dismiss (dkt. # 13) the complaint for lack of personal jurisdiction. For the reasons set forth herein, defendant's motion is GRANTED in that the court finds that exercising personal jurisdiction over AWIG in the District of Connecticut is improper, but DENIED inasmuch as defendant seeks dismissal of this action. This case shall be transferred to the Western District of North Carolina.

I. FACTS

AWUL is a Connecticut corporation with its principal place of business located in Stamford, Connecticut, where it engages in the business of rendering insurance services. AWIG is a North Carolina corporation with its principal place of business located in Charlotte, North Carolina, and also engages in the business of rendering insurance services. AWUL maintains a web site with the domain name . AWIG maintains a web site with the domain name .

AWUL began providing insurance services under its trade names of "American Wholesalers Underwriting" and "American Wholesalers" in 1994. AWUL alleges that these trade names have been recognized by the consuming public and the insurance industry as belonging to AWUL. AWUL registered the name "American Wholesalers Underwriting, Inc." with the United States Patent and Trademark Office on September 12, 1995. AWUL further contends that it registered the acronym "WIP" on August 27, 1996, and the name "Wholesale Insurance Plan" on April 21, 1998. AWUL has alleged that AWIG's use of the names "American Wholesale Insurance Group" and "American Wholesale" are confusingly similar to AWUL's recognized trade names and its registered trademark. AWUL also claims that AWIG's domain name creates confusion between the names and corporate identities of the parties. AWUL contends that it used the trade names "American Wholesalers Underwriting" and "American Wholesalers" and maintained its web site at "long before" AWIG began to use its "confusingly similar" trade names and domain name.

AWUL alleges that AWIG solicits and regularly transacts business within the State of Connecticut. AWIG holds numerous fully owned subsidiaries, two of which are connected to the State of Connecticut. New Century Global ("NCG"), a Delaware corporation fully owned by AWIG, holds two subsidiaries within the State of Connecticut: New Century Global of New England ("NCG-NE"), and Lambert Green, Ltd. ("LG"). NCG-NE has an office in Farmington, Connecticut, which has seven (7) employees and accounted for 1.3% of AWIG's profits in the year 2002. LG is a Connecticut corporation, but has only two employees, both of whom are located in Virginia.

AWIG's web site has a map indicating its business locations. Upon visiting the web site, the court observed a box numbered five (5) covering the area of Connecticut as well as parts of Massachusetts, New York, and Rhode Island. Clicking this link brings the user to information regarding the AWIG subsidiary NCG. The NCG information lists an address and telephone number in New York, and an email address for further information.

Plaintiff has alleged that the Farmington, Connecticut address and telephone number for NCG-NE can be found at . Upon accessing the web site on October 6, 2003 and November 18, 2003, this court was unable to find any reference to NCG-NE, nor was it able to find an address or phone number for the Farmington, Connecticut office. The Court was also unable to find a link to the NCG web site while navigating . Because the existence of the address and phone number, as well as the link to the NCG web site, are not determinative of the court's assertion of jurisdiction, the court will credit the allegations made by the plaintiff in its consideration of the pending motion.¹

AWIG has placed a minimum of six (6) magazine advertisements within national trade publications. Each of these magazines has between 1,000 and 2,000 subscribers within the State of Connecticut, which represents between 1% and 2.5% of each magazine's total national subscriptions. Each of these advertisements contain "American Wholesale Insurance Group", "", and "New Century Global". AWIG also allegedly advertised its insurance products on the web site .

II. DISCUSSION

AWUL sets forth three counts in its Complaint. Defendant seeks dismissal of all counts of the Complaint for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure.

A. STANDARD OF REVIEW

Under Rule 12(b)(2), an action should be dismissed if the court lacks jurisdiction over a party. Fed.R.Civ.P. 12(b)(2). When responding to a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of establishing that the court has jurisdiction over the defendant. Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir.1994). Prior to discovery, a plaintiff may defeat a motion to dismiss based on legally sufficient allegations of jurisdiction and by making a prima facie case of jurisdiction. Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.1990). In contrast, when an evidentiary hearing is held, the plaintiff must demonstrate the court's personal jurisdiction over the defendants by a preponderance of the evidence. Robinson, 21 F.3d at 507 n. 3. In a case where, as here, the parties have conducted extensive discovery regarding the defendants' contacts with the forum state, but no evidentiary hearing has been held, "the plaintiff's prima facie showing, necessary to defeat a jurisdiction testing motion, must include an averment of the facts that, if credited by [the ultimate trier of fact], would suffice to establish jurisdiction over the defendant." Ball, 902 F.2d at 197; see also Bensusan Restaurant Corp. v. King, 937 F.Supp. 295, 298 (S.D.N.Y.1996) ("[m]atters outside the pleadings ... may ... be considered in resolving a motion to dismiss for lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2) without converting it into [a motion] for summary judgment"). When considering a Rule 12(b)(2) motion, the court construes any factual averments and resolves all doubts in the plaintiff's favor. CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir.1986).

"In a federal question case where a defendant resides outside the forum state, a federal court applies the forum state's personal jurisdiction rules `if the federal statute does not specifically provide for national service of process.'" PDK Labs, Inc. v. Friedlander, 103 F.3d 1105, 1108 (2d Cir.1997) (quoting Mareno v. Rowe, 910 F.2d 1043, 1046 (2d Cir.1990)). Because the Lanham Act does not authorize nationwide service of process, see, e.g., Tomra of North America, Inc. v. Environmental Products Corp., 4 F.Supp.2d 90, 92 (D.Conn.1998), the court must determine in personam jurisdiction over each defendant pursuant to the law of the forum state. See Arrowsmith v. United Press Int'l, 320 F.2d 219, 223 (2d Cir.1963). This requires a two-step analysis. See Mozes v. Welch, 638 F.Supp. 215, 222 (D.Conn.1986) (citing Arrowsmith, 320 F.2d at 223); Conn. Artcraft Corp. v. Smith, 574 F.Supp. 626, 629 (D.Conn.1983). First, the plaintiff has the burden of showing that the state's long-arm statute authorizes the exercise of personal jurisdiction. Mozes, 638 F.Supp. at 222-23. If the defendant is subject to jurisdiction under the terms of the applicable long-arm statute, then the court must also consider whether the exercise of jurisdiction satisfies due process, namely whether the defendants have "certain minimum contacts with [the forum state] such that the maintenance of the suit [in that forum] does not offend `traditional notions of fair play and substantial justice.'" Int'l Shoe Co. v. State of Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

B. LONG-ARM STATUTE

AWIG is not a resident of Connecticut, so plaintiff must show that defendant is subject to personal jurisdiction pursuant to Section 33-929 of the Connecticut General Statutes, which is Connecticut's long-arm statute applicable to foreign corporations. Section 33-929(f)² provides, in pertinent part, the following:

Every foreign corporation shall be subject to suit in this state, by a resident of this state or by a person having a usual place of business in this state, whether or not such foreign corporation is transacting or has transacted business in this state and whether or not it is engaged exclusively in interstate or foreign commerce, on any cause of action arising as follows: ... (2) out of any business solicited in this state by mail or otherwise if the corporation has repeatedly so solicited business, whether the orders or offers relating thereto were accepted within or without the state; ... or (4) out of tortious conduct in this state, whether arising out of repeated activity or single acts, and whether arising out of misfeasance or nonfeasance.

Conn. Gen.Stat. § 33-929(f). The Connecticut Supreme Court has interpreted this provision to

requir[e] inquiry not only into the various elements of the plaintiff's cause of action, spelled out in the various subparts of subsectio...