Mashantucket Pequot Tribe v. Redican

• Decision Date: 18 March 2004
• Docket Number: No. CIV.A.3:02-CV-1828(JCH).,CIV.A.3:02-CV-1828(JCH).
• Citation: 309 F.Supp.2d 309
• Court: U.S. District Court — District of Connecticut
• Parties: THE MASHANTUCKET PEQUOT TRIBE, Plaintiff, v. Raymond REDICAN, Jr. d/b/a: CBNO FOXWOOD.COM (CIS), Defendant.

309 F.Supp.2d 309

THE MASHANTUCKET PEQUOT TRIBE, Plaintiff, v. Raymond REDICAN, Jr. d/b/a: CBNO FOXWOOD.COM (CIS), Defendant.

No. CIV.A.3:02-CV-1828(JCH).

United States District Court, D. Connecticut.

March 18, 2004.

Peter L. Costas, Pepe & Hazard, Hartford, CT, for Plaintiff.

Raymond Redican, Jr., Lowell, MA, pro se.

Stephen P. McNamara, St. Onge, Steward, Johnston & Reens, Stamford, CT, for Defendant.

RULING DENYING DEFENDANT'S MOTION TO DISMISS [Dkt. No. 32]

HALL, District Judge.

The plaintiff, the Mashantucket Pequot Tribe ("Tribe") brings this trademark action against the defendant, Raymond Redican, Jr. d/b/a CBNO FOXWOOD.COM (CIS) ("Redican"), alleging various violations of federal and state trademark law, including the Anticybersquatting Consumer Privacy Act ("ACPA"), see 15 U.S.C. §§ 1114, 1125,¹ and of the Connecticut Unfair Trade Practices Act, see Connecticut General Statutes § 42-110a et seq. See Complaint [Dkt. No. 1]. The Tribe's claims are based on its allegations that Redican registered the domain names FOXWOOD.ORG and FOXWOOD.COM, among others; operated a website using the latter domain name which offered advertisements and enabled website users to access the websites of on-line casinos and marketers merely by clicking on an icon; and ultimately made unsuccessful efforts to sell his domain name registrations to the Tribe.

Redican has moved to dismiss the complaint against him, claiming that the court lacks personal jurisdiction over him. See Defendant's Motion to Dismiss for Lack of Personal Jurisdiction [Dkt. No. 32]. For the reasons stated below, the court concludes that it can assert personal jurisdiction over Redican and therefore denies the motion.

I. FACTS AND PROCEDURAL HISTORY

The Tribe is a federally recognized Indian tribe located in Mashantucket, Connecticut. The Tribe owns and operates the Foxwoods Resorts and Casino, which first opened in 1992, and is perhaps the largest casino in the world. "Foxwoods" is the subject of United States trademark registrations not only for casino services but also, e.g., newsletter publications, apparel, retail apparel stores, hotel accommodations, and restaurant operations.

Defendant Redican, who is a citizen of Massachusetts, does business under the names CBNO FOXWOOD.COM (CIS). Redican has registered over fifty domain names, including the registrations of FOXWOOD.ORG and FOXWOOD.COM,² which were registered in 1997.³ Redican identified the registrant of the FOXWOOD.COM domain name as "Foxwood On-line Casino Inc." and gave his own name as the administrative and billing contact. Based on the evidence before the court, the website, which is no longer an active site on the Web, offered advertising and allowed its users to access on-line casinos and marketers merely by clicking on various icons. According to Redican, the site's advertising alone generated from $600 to $1000 per year, and Redican testified that his website had three times the number of hits than that generated by the Tribe's official website, Foxwoods.com.⁴

In April or May of 2001, as part of effort to sell his Foxwood domain name registrations, Redican contacted more than fifty Foxwood organizations. Redican succeeded in selling at least two domain names unrelated to Foxwood(s), one of which sold for $850 and the other selling for $1,750. See Plaintiff's Memorandum in Opposition to Defendant's Motion for Dismissal for Lack of Personal Jurisdiction, ("Pl's Mem.") [Dkt. No. 37], Ex. A: Redican Dep. at 45.

As part of his effort to sell the Foxwood registrations, Redican traveled to Mashantucket, Connecticut and visited the Tribe in order to arrange a meeting with tribal executives about selling the domain name. During this visit, Redican obtained the names of two tribal officials he was to speak to about domain names. On May 5, 2001, Redican called these officials in order to arrange a meeting but was told he had to make a request in writing. On May 11 2001, Redican mailed a letter requesting a meeting. On June 5, 2001, he telephoned the Tribe to follow up on his previous letter. In response, on August 10, 2001, Redican received letters from the Tribe's legal counsel demanding assignment of the domain name registrations. On March 9, 2002, Redican made a second visit to Mashantucket and met with a member of the Tribe's public relations department.⁵ At points in his attempts to sell the domain names, Redican sought $20 million and later offered $3.5 million in exchange for the registrations. See Pl's Mem. at 4.

On October 17, 2002, the Tribe filed a complaint against Redican alleging trademark infringement under federal law and state common law, federal and state trademark dilution, false designation or description, and violations of the Anticybersquatting Act, see 15 U.S.C. §§ 1114, 1125, and of the Connecticut Unfair Trade Practices Act, see Connecticut General Statutes § 42-110a et seq. The complaint seeks declaratory and injunctive relief as well as monetary damages and attorney's fees and costs.

II. DISCUSSION

Redican moves to dismiss for lack of personal jurisdiction on the grounds his conduct does not satisfy the requirements of Conn. Gen.Stat. § 52-59b and, even if it did, the exercise of jurisdiction over him by a Connecticut court would offend notions of "fair play and substantial justice" as articulated in the U.S. Supreme Court's decision in Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 320, 66 S.Ct. 154, 90 L.Ed. 95 (1945)) and its progeny. See Memorandum of Law in Support of Defendant's Motion to Dismiss for Lack of Personal Jurisdiction ("Def's Mem.") [Dkt. No. 33] at 3-14. For the reasons that follow, the court disagrees.

On a motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of showing that the court has jurisdiction over the defendant. See Ensign-Bickford Co. v. ICI Explosives USA, Inc., 817 F.Supp. 1018, 1026 (D.Conn.1993) (Cabranes, J.). "To survive the motion, the plaintiff must make a `prima facie showing' through affidavits or other evidence that the defendant's conduct was sufficient for the court to exercise personal jurisdiction." Id. However, "[w]hen, as here, an evidentiary hearing has been conducted, the plaintiff's burden increases such that he must prove jurisdictional facts by a preponderance of the evidence." Milne v. Catuogno Court Reporting Services, 239 F.Supp.2d 195, 198 (D.Conn.2002). A defendant's conduct is sufficient for the exercise of personal jurisdiction if (1) the conduct satisfies the requirements of the long-arm statute of the forum state and (2) the conduct satisfies the "minimum contacts" requirement of the Due Process Clause of the Fourteenth Amendment. Ensign-Bickford Co., 817 F.Supp. at 1026; see also On-Line Techs. v. Perkin Elmer Corp., 141 F.Supp.2d 246, 262 (D.Conn.2001) (JBA) (citing Bensmiller v. E.I. Dupont de Nemours & Co., 47 F.3d 79, 81 (2d Cir.1995)).

Thus, the first issue to be considered is whether Redican's conduct is sufficient to meet the requirements for personal jurisdiction under the Connecticut long-arm statute. The pertinent statute provides in part:

As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident individual ..., who in person or through an agent: (1) Transacts any business within the state; (2) commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; (3) commits a tortious act outside the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if such person or agent (A) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (B) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce ....

Conn. Gen. Stats. § 52-59b. The court concludes that Redican's activities fall within the ambit of Conn. Gen. Stats. § 52-59b(a)(3)(B) because he has committed a "tortious act outside the state" "causing injury ... within the state" and "he expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate commerce." Id. In reaching this conclusion, the court finds the reasoning adopted in other cases, such as Cello Holdings, L.L.C., v. Lawrence-Dahl Companies, 89 F.Supp.2d 464 (S.D.N.Y.2000) (applying identical New York long-arm provision), and National Football League v. Miller, No. 99 Civ. 11846, 2000 WL 335566, 2000 U.S. Dist. LEXIS 3929 (S.D.N.Y. March 30, 2000) (applying identical New York long-arm provision), to be persuasive.

In Cello Holdings, L.L.C., v. Lawrence-Dahl Companies, 89 F.Supp.2d 464, the District Court for the Southern District of New York concluded that the exercise of personal jurisdiction over the defendant was proper pursuant to New York's long-arm statute, which, like its sister provision in Connecticut,⁶ provides that the state's courts "may exercise personal jurisdiction over any non-domiciliary ... who ... commits a tortious act without the state causing injury to a person or property within the state ... if he ... expects or reasonably should expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce." Id. at 470 (citing N.Y.C.P.L.R. § 302(a)(3)(ii) (McKinney 1997)). In so concluding, the court noted that the non-resident defendant had not personally visited New York in thirty years but nonetheless relied on the fact that the defendant had sent emails to at least nine individuals or companies attempting to sell the domain name registrations for...