Neogen Corp. v. Neo Gen Screening, Inc., No. 00-2107.

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: Ronald Lee Gilman
• Citation: 282 F.3d 883
• Parties: NEOGEN CORPORATION, Plaintiff-Appellant, v. NEO GEN SCREENING, INC., Defendant-Appellee.
• Docket Number: No. 00-2107.
• Decision Date: 06 March 2002

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282 F.3d 883 NEOGEN CORPORATION, Plaintiff-Appellant,
v.
NEO GEN SCREENING, INC., Defendant-Appellee. No. 00-2107. United States Court of Appeals, Sixth Circuit. Argued January 31, 2002. Decided and Filed March 6, 2002.

Appeal from the United States District Court for the Western District of Michigan, Robert Holmes Bell, Chief Judge.

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Graham K. Crabtree (argued and briefed), Mark R. Fox (briefed), Fraser, Trebilcock, Davis & Dunlap, Lansing, MI, for Appellant.

Kenneth P. McKay (argued and briefed), Law Offices of K. Patrick McKay, Pittsburgh, PA, for Appellee.

Before: MARTIN, Chief Circuit Judge; GILMAN, Circuit Judge; EDMUNDS, District Judge.^*

OPINION

RONALD LEE GILMAN, Circuit Judge.

In April of 2000, Neogen Corp. (Neogen), a Michigan corporation, filed suit in the Western District of Michigan against Neo Gen Screening, Inc. (NGS), a Pennsylvania corporation, alleging (1) trademark infringement, (2) federal dilution and unfair competition, (3) violation of the Michigan Consumer Protection Act, (4) violation of the Michigan Pricing and Advertising Act, and (5) unjust enrichment. The district court dismissed the suit in August of 2000 for lack of personal jurisdiction over NGS pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. Neogen has appealed. For the reasons set forth below, we REVERSE the judgment of the district court and REMAND the case for further proceedings consistent with this opinion.

I. BACKGROUND

Neogen is in the business of developing and marketing a range of health care, food, and animal-related products and services, including certain diagnostic test kits. Its principal place of business is in Lansing, Michigan, but Neogen also has places of business in Florida, Illinois, and Kentucky. Neogen alleges that it has used the "Neogen" name and trademark continuously and extensively in interstate commerce, and that it has registered the mark with the U.S. Patent and Trademark Office. Its website is found at www.neogen.com.

NGS performs diagnostic testing of blood samples from newborn infants. A closely-held Pennsylvania corporation, NGS has its sole place of business in Pittsburgh. Approximately ninety percent of the 215,000 tests that NGS performed in 1999 were generated through contracts with hospitals and governmental agencies around the world, none of which were located in Michigan. The remainder of the tests performed by NGS in 1999 were done at the request of individual physicians or coroners with whom NGS did not have a prior contract. Such customers not under contract can obtain testing services by telephoning or e-mailing NGS to request information and "filter blood collection forms." NGS then mails the collection form to the customer, who collects the sample and sends it back to the company in a preaddressed return envelope for testing. The customer can then obtain the test results through the mail, or on NGS's website with a password provided by the

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company. Customers pay for the tests by mailing a check to NGS's Pittsburgh office. NGS tested 14 blood samples from Michigan coroners in 1999, and anticipated about the same number for 2000. In earlier years, NGS also received and tested an undisclosed number of samples from Michigan residents.

NGS's only continuous advertising is through its website, www.neogenscreening.com. The website provides information about NGS's services, lists the e-mail addresses of personnel, and allows prospective customers to print blood-collection forms to be mailed along with blood samples to Pittsburgh. NGS's website is internationally accessible. Neogen claims that NGS's contacts with Michigan through its website and its approximately 14 yearly mail-order transactions with Michigan customers subject NGS to the jurisdiction of the United States District Court for the Western District of Michigan.

Based upon its conclusion that the exercise of personal jurisdiction over NGS would violate due process, the district court granted NGS's motion to dismiss pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. The district court made its determination without first conducting an evidentiary hearing. Neogen appeals the dismissal. Because the district court granted NGS's motion to dismiss, it did not consider NGS's motion to transfer venue on grounds of forum non conveniens pursuant to 28 U.S.C. § 1404(a).

II. ANALYSIS

A. Subject matter jurisdiction

The district court had subject matter jurisdiction over this case based upon diversity of citizenship pursuant to 28 U.S.C. § 1332. Although the district court also had subject matter jurisdiction over the federal trademark, dilution, and unfair competition claims pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over the state-law claims pursuant to 28 U.S.C. § 1367, both the parties and the district court have treated this case as though jurisdiction were based solely on diversity of citizenship. We will therefore do the same for the purposes of this appeal.

B. Burden of proof

As the plaintiff, Neogen has the burden of establishing the district court's personal jurisdiction over NGS. Nationwide Mut'l Ins. Co. v. Tryg Int'l Ins. Co., Ltd., 91 F.3d 790, 793 (6th Cir.1996). Because the district court did not conduct an evidentiary hearing on the issue of personal jurisdiction in considering NGS's motion to dismiss pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, Neogen "need only make a prima facie showing of jurisdiction." CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th Cir.1996). Neogen can meet this burden by "establishing with reasonable particularity sufficient contacts between [NGS] and the forum state to support jurisdiction." Provident Nat'l Bank v. California Fed. Savings Loan Ass'n, 819 F.2d 434, 437 (3d Cir.1987). Under these circumstances, this court will not consider facts proffered by the defendant that conflict with those offered by the plaintiff, Serras v. First Tenn. Bank Nat'l Ass'n, 875 F.2d 1212, 1214 (6th Cir.1989), and will construe the facts in the light most favorable to the nonmoving party in reviewing a dismissal pursuant to Rule 12(b)(2). Id.

C. The district court erred in concluding that Neogen failed to present a prima facie case of personal jurisdiction over NGS

1.Standard of review

We review de novo a dismissal for lack of personal jurisdiction pursuant

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to Rule 12(b)(2) of the Federal Rules of Civil Procedure. Nationwide Mut'l Ins. Co., 91 F.3d at 793. A federal court's exercise of personal jurisdiction in a diversity of citizenship case must be both (1) authorized by the law of the state in which it sits, and (2) in accordance with the Due Process Clause of the Fourteenth Amendment. Reynolds v. Int'l Amateur Athletic Fed'n, 23 F.3d 1110, 1115 (6th Cir.1994).

2. Neogen has presented a prima facie case that Michigan's "long-arm" statute authorizes limited personal jurisdiction over NGS

Michigan's "long-arm" statute extends "limited" jurisdiction over nonresident corporations pursuant to Mich. Comp. Laws § 600.715, and "general" jurisdiction pursuant to Mich. Comp. Laws § 600.711. Limited jurisdiction extends only to claims arising from the defendant's activities that were either within Michigan or had an instate effect. Third Nat'l Bank in Nashville v. WEDGE Group Inc., 882 F.2d 1087, 1089 (6th Cir.1989). General jurisdiction, on the other hand, enables a court in Michigan to exercise jurisdiction over a corporation regardless of whether the claim at issue is related to its activities in the state or has an in-state effect. Id.

Mich. Comp. Laws § 600.715 extends limited personal jurisdiction over a nonresident corporation in claims "arising out of the act or acts which create any of the following relationships," including: "[t]he transaction of any business within the state" under § 600.715(1), "[t]he doing or causing of any act to be done, or consequences to occur, in the state resulting in an action for tort" under § 600.715(2), and the "[e]ntering into a contract for services to be performed or for materials to be furnished in the state by the defendant" under § 600.715(5).

The "transaction of any business" necessary for limited personal jurisdiction under § 600.715(1) is established by "the slightest act of business in Michigan." Lanier v. Am. Bd. of Endodontics, 843 F.2d 901, 906 (6th Cir.1988) (citing Sifers v. Horen, 385 Mich. 195, 188 N.W.2d 623, 624 n. 2 (1971)). Neogen has presented a prima facie case that NGS transacted business in Michigan when it accepted blood for testing from Michigan, mailed the test results to Michigan, made the results accessible to its Michigan customers on its website, and accepted payment through the mail from Michigan. Lanier, 843 F.2d at 908. (holding that an Illinois professional corporation had "transacted business" in Michigan under § 600.715(1) through its mail and telephone contacts with Michigan residents).

The "arising out of" requirement of § 600.715 is satisfied because the alleged economic harm and trademark infringement that form the basis of Neogen's suit were directly related to NGS's transaction of business in Michigan. In Flight Devices Corp. v. Van Dusen Air, Inc., 466 F.2d 220, 231 (6th Cir.1972) (finding limited personal jurisdiction under Ohio's similar long-arm statute where the acts forming the basis for the defendant's allegedly tortious conduct were "made possible" by the defendant's transaction of business in Ohio). Viewing the allegations in the light most favorable to Neogen, the economic harm of which it complains can be construed as resulting from NGS's conduct of business with Michigan residents over the wires, through the mail, and by use of the Internet.

Neogen has also presented a prima facie case that limited...