Nida Corp. v. Nida
| Decision Date | 20 October 2000 |
| Docket Number | No. 6:00-CV-81ORL31C.,6:00-CV-81ORL31C. |
| Citation | 118 F.Supp.2d 1223 |
| Parties | NIDA CORPORATION, Plaintiff, v. Ken NIDA, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
Stephen D. Milbrath, Allen, Dyer, Doppelt, Milbrath & Gilchrist, P.A., Orlando, FL, William J. Kananack, Melbourne, FL, for plaintiff.
Christopher T. Hill, Rumberger, Kirk & Caldwell, Orlando, FL, for defendant.
Upon consideration of the Report and Recommendation of the Magistrate Judge (Doc. 29, filed September 13, 2000), the Defendant's objection to that report (Doc. 30, filed September 30, 2000), and the Plaintiff's response to that Objection (Doc.33, filed October 10, 2000), this Court concludes that the Plaintiff has adequately established personal jurisdiction pursuant to Florida's Long-Arm Statute, see Posner v. Essex Ins. Co. Ltd., 178 F.3d 1209, 1217 (11th Cir.1999) (), and in accord with the Due Process Clause.
Accordingly, it is hereby ORDERED AND ADJUDGED that the Report and Recommendation of the Magistrate Judge (Doc. 29, filed September 13, 2000) is AFFIRMED, and the Defendant's Motion to Dismiss for Lack of Personal Jurisdiction (Doc. 30, filed February 22, 2000) is DENIED.
This cause came on for consideration at a hearing on August 15, 2000 on the following motion:
DEFENDANT'S MOTION TO DISMISS
FOR LACK OF PERSONAL
JURISDICTION. [Doc. No. 5]
FILED: February 22, 2000
RECOMMENDATION DENIED
I. BACKGROUND AND PERTINENT FACTS
This dispute arises from the fact that both plaintiff (Nida Corporation) and defendant (Kevin Nida d/b/a Nida Companies) use the word "Nida" in pursuit of their respective businesses. Plaintiff is a Connecticut Corporation with its principal place of business in Melbourne, Florida ["Florida Nida"]. Docket No. 28 at ¶ 1; Docket No. 24 at ¶ A.1. Florida Nida was incorporated in 1972. Docket No. 28 at ¶ 7; Docket No. 24 at ¶ A.3. On October 28, 1975, Florida Nida obtained a registration for the mark "Nida" from the United States Patent and Trademark Office. Docket No. 28 at ¶ 8; Docket No. 24 at ¶ A.4. Florida Nida maintains a World-Wide Website with the address "www. nida.com." Docket No. 28 at ¶ 6; Docket No. 24 at ¶ C.1.
Defendant Kevin Nida is a Captain/Paramedic with the Los Angeles City Fire Department. Docket No. 28 at ¶ 13; Docket No. 24 at ¶ A.3. Born in 1960 [Docket No. 24 at ¶ B.2], Kevin Nida has done business as "Nida Companies" since April 1981 when he registered this fictitious name with the State of California ["California Nida"]. Docket No. 28 at ¶ 17; Docket No. 24 at ¶ B.5. California Nida's annual sales for 1999 exceeded one million dollars. Docket No. 28 at ¶ 14; Docket No. 7 at ¶ 15. California Nida maintains a World-Wide Website with the address "www.nidacom.com." Docket No. 28 at ¶ 16; Docket No. 24 at ¶ C.2.
On October 22, 1998, Florida Nida received a fax on California Nida's letter-head which was apparently directed to Singer Products. Docket No. 24 at ¶ E.1. On August 3, 1999, a representative of Florida Nida contacted California Nida posing as a buyer for "new radio gear" and asked if Nida Companies "had any customers in the Florida/Georgia area." Docket No. 24 at ¶ E.2. California Nida responded on August 3, 1999 that it had "sold our products to the Kennedy Space Center in Florida." Docket No. 24 at ¶ E.3. After an exchange of letters [Docket No. 15 at Tab 6], Florida Nida Florida initiated this lawsuit on January 21, 2000. Docket No. 1. On February 22, 2000, California Nida moved to dismiss the complaint for lack of personal jurisdiction. Docket No. 5. By order dated April 21, 2000, the Honorable Patricia C. Fawsett referred the motion to dismiss to the undersigned for an evidentiary hearing. Docket No. 17. On August 8, 2000, this case was reassigned to the Honorable Gregory A. Presnell. Docket No. 20. On August 15, 2000 the Court held an evidentiary hearing on the motion to dismiss. Docket No. 21.
II. THE LAW OF PERSONAL JURISDICTION
An assessment of personal jurisdiction requires a two-part analysis. Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989). In order to determine whether this Court has personal jurisdiction over non-resident defendants, the Court must first determine whether there is a basis for jurisdiction under Florida's long-arm statute, Fla. Stat. § 48.193. See Fed.R.Civ.P. 4(e)(1), (h), and (k); Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 626 — 27 (11th Cir.1996). If the Court finds that personal jurisdiction exists under Florida's long-arm statute, the Court must then consider whether the defendant's contacts with the state of Florida are sufficient to satisfy the due process clause of the Fourteenth Amendment such that maintenance of the suit in Florida does not offend traditional notions of fair play and substantial justice. See International Shoe Co. v. Washington, 326 U.S. 310, 315-17, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829, 855 (11th Cir.1990); Venetian Salami Co., 554 So.2d at 502 (Fla.1989). If both prongs of the jurisdictional test are satisfied — Florida's long-arm statute and the due process analysis — then the Court may exercise personal jurisdiction over the non-resident defendant. Madara v. Hall, 916 F.2d 1510, 1516 (11th Cir.1990).
This Court examines the Florida long-arm statute as would the Florida Supreme Court because the reach of the statute is a question of state law. See Oriental Imports & Exports, Inc. v. Maduro & Curiel's Bank, N.V., 701 F.2d 889, 890-91 (11th Cir.1983); Structural Panels, Inc. v. Texas Aluminum Industries, Inc., 814 F.Supp. 1058, 1064 (M.D.Fla.1993). Florida's long-arm statute is strictly construed, and the plaintiff has the burden of proving facts which satisfy the criteria. Oriental Imports & Exports, 701 F.2d at 891. The pertinent subsections of Florida's long-arm statute provide:
(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:
(a) Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.
* * * * * *
(b) Committing a tortious act within this state.
* * * * * *
Causing injury to persons or property within this state arising out of an act or omission by the defendant outside this state, if, at or about the time of the injury, either:
1. The defendant was engaged in solicitation or service activities within this state; or
2. Products, materials, or things processed, serviced, or manufactured by the defendant anywhere were used or consumed within this state in the ordinary course of commerce, trade, or use.
* * * * * *
(2) A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.
Fla.Stat. § 48.193. Where directly conflicting affidavits cause the Court to hold an evidentiary hearing (see Venetian Salami Co., 554 So.2d at 502), the plaintiff bears the burden of proving personal jurisdiction at the evidentiary hearing. See Musiker v. Projectavision, Inc., 960 F.Supp. 292, 295 (S.D.Fla.1997). However, the defendant's submission of an affidavit containing mere conclusory allegations of ultimate fact are insufficient to shift to the plaintiff the burden of producing evidence supporting jurisdiction. Posner v. Essex Ins. Co., 178 F.3d 1209, 1215 (11th Cir.1999). Also, with respect to those points upon which the competing affidavits do not conflict, the Court may accept as true the applicable allegations in the complaint for purposes of resolving jurisdictional issues under the requirements of the Florida long-arm statute and the Due Process Clause. Posner, 178 F.3d at 1215.
In order to establish that a non-resident defendant is carrying on a business or business venture in Florida, the Court must consider whether the sum of the defendant's collective business activities shows a general course of business activity in the state for pecuniary benefit. Sculptchair, Inc., 94 F.3d at 627 — 28 (11th Cir.1996) (); Musiker, 960 F.Supp. at 295 — 96; see also, Cauff Lippman & Co. v. Apogee Finance Group, Inc., 745 F.Supp. 678, 682 (S.D.Fla. 1990) (); Jasper v. Zara, 595 So.2d 1075, 1075-76 (Fla. 2d DCA 1992) (); Intercontinental Corp. v. Orlando Regional Medical Center, 586 So.2d 1191, 1195 (Fla. 5th DCA 1991) (...
To continue reading
Request your trial
-
Del Monte Fresh Produce Co. v. Dole Food Co., Inc.
...protection under the Lanham Act, and (2) that defendant's use of it is likely to cause confusion. See Nida Corp. v. Nida,. 118 F.Supp.2d 1223, 1231 (M.D.Fla.2000). 5. This subsection's discussion of the public domain issue relates only to count I. It does not apply to count II, which is for......
-
Hy Cite Corp. v. Badbusinessbureau.Com, L.L.C.
...Cir. 1999); Multi-Tech Systems, Inc. v. Vocal-Tec Communications, Inc., 122 F.Supp.2d 1046, 1050 (D.Minn.2000); Nida Corp. v. Nida, 118 F.Supp.2d 1223, 1229-30 (S.D.Fla.2000). The Court of Appeals for the Seventh Circuit has not yet decided a personal jurisdiction case in the internet conte......
-
Krauser v. Evollution Ip Holdings, Inc.
...and the forum state must come about by an action of the defendant purposefully directed toward the forum state.” Nida Corp. v. Nida, 118 F.Supp.2d 1223, 1229 (M.D.Fla.2000) (citing Asahi Metal Indus. Co. v. Superior Ct. of Cal., Solano Cty., 480 U.S. 102, 108–09, 107 S.Ct. 1026, 94 L.Ed.2d ......
-
Exhibit Icons, LLC v. Xp Companies, LLC
...and the forum state must come about by an action of the defendant purposefully directed toward the forum state." Nida Corp. v. Nida, 118 F.Supp.2d 1223, 1229 (M.D.Fla.2000) citing Asahi Metal Indus. Co. v. Superior Ct. of Cal., Solano Cty., 480 U.S. 102, 108-09, 107 S.Ct. 1026, 94 L.Ed.2d 9......
-
Personal jurisdiction and the Internet: applying old principles to a "new" medium.
...Courts For the most part, the federal courts in Florida have adopted the framework established in Zippo. See Nida Corp. v. Nida, 118 F. Supp. 2d 1223, 1229-1230 (M.D. Fla. 2000); JB Oxford Holdings, Inc. v. Net Trade, Inc., 76 F. Supp. 2d 1363, 1367 (S.D. Fla. 1999). In Nida, personal juris......