Ottenheimer Publishers, Inc. v. Playmore, Inc., Civil Action No. CCB-00-3081.

• Court: United States District Courts. 4th Circuit. United States District Court (Maryland)
• Writing for the Court: Blake
• Citation: 158 F.Supp.2d 649
• Parties: OTTENHEIMER PUBLISHERS, INC. v. PLAYMORE, INC., et al.
• Docket Number: Civil Action No. CCB-00-3081.
• Decision Date: 13 August 2001

158 F.Supp.2d 649 OTTENHEIMER PUBLISHERS, INC.
v.
PLAYMORE, INC., et al. Civil Action No. CCB-00-3081. United States District Court, D. Maryland. August 13, 2001.

Page 650

Norman L. Smith, Fisher & Winner, LLP, Baltimore, MD, for plaintiff.

Susan Brinkerhoff, Bruce E. Boyden, Washington, DC, Charles Guttman, Proskauer Rose LLP, New York City, for defendants.

MEMORANDUM

BLAKE, District Judge.

Now pending before this Court is a motion to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure filed by Defendant Peter Haddock Ltd. ("Haddock"). In its complaint, Plaintiff Ottenheimer Publishers, Inc. ("Ottenheimer") alleges that Haddock and Defendant Playmore, Inc., ("Playmore"),¹ violated the Copyright Act of 1976, as amended, 17 U.S.C. § 101 et seq., and engaged in a number of acts of unfair competition. As the matter has been fully briefed by the parties, no hearing is necessary. See Local Rule 105.6. For the reasons stated below, Haddock's motion to dismiss will be granted.

STANDARD OF REVIEW

When, as in this instance, a defendant challenges a court's personal jurisdiction under Rule 12(b)(2) of the Federal

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Rules of Civil Procedure, the burden rests ultimately with the plaintiff to prove, by a preponderance of the evidence, grounds for jurisdiction. See Mylan Laboratories, Inc. v. Akzo, 2 F.3d 56, 59-60 (4th Cir. 1993). If the issue is decided without an evidentiary hearing, the plaintiff needs only to make a prima facie showing of personal jurisdiction. See id. at 60; Owens-Illinois, Inc. v. Rapid Am. Corp. (In re Celotex Corp.), 124 F.3d 619, 627 (4th Cir.1997). In making its determination, the court must draw all reasonable inferences arising from the proof, and resolve all factual disputes, in the plaintiff's favor. See Mylan, 2 F.3d at 60.

BACKGROUND

Ottenheimer is a corporation incorporated under the laws of the state of Maryland, with its principal place of business in Baltimore County, Maryland. Ottenheimer is engaged in the publication of books. (Comp. at ¶¶ 1, 4.)

Haddock is a corporation incorporated under the laws of the United Kingdom, with its headquarters and principal place of business located in Bridlington, East Yorkshire, England. (Def.Mot. to Dis., Decl. of P. Haddock at ¶ 2.) Haddock does not have any offices located in Maryland or elsewhere in the United States; nor does it have a telephone listing, agents, employees, or sales representatives located in Maryland. (Id. at ¶¶ 2-3.) According to its Chairman, Peter Haddock, Haddock has never advertised directly to consumers in Maryland and derives no revenue from sales to Maryland consumers. (Id. at ¶¶ 3, 5.) No one from Haddock has ever visited Maryland. (Id. at ¶ 3.)

Haddock does maintain an Internet website, located at www.peterhaddock.com, which can be accessed from anywhere in the world, including Maryland. The website displays contact information for the company, including its telephone number and address, along with advertisements and retail prices for the books. The website provides at least two ways to order the advertised materials. Visitors can either send an e-mail to Haddock requesting an electronic order form, or e-mail a fax number to Haddock so that the order form can be faxed to the potential customer. (Id. at ¶ 4.) According to Mr. Haddock, Haddock has never received any orders through the website from consumers in Maryland. (Id.)

On several occasions over the last decade, Haddock has purchased books from Ottenheimer for resale; Haddock also has entered into two license agreements with Ottenheimer. In July 1981, the parties negotiated a License Agreement under which Ottenheimer licensed to Haddock the right to publish a book entitled "The Seasons of Fern Hollow" for a period of three years from the date of initial publication. (Pl.Res.Mot. to Dis., Ex. A, License Agreement, 7/2/81.) As an aspect of the License Agreement, the parties agreed that "[r]egardless of the place of its physical execution, the agreement shall be interpreted under the laws of the State of Maryland and of the United States of America." (Id.) The agreement was negotiated between Allan T. Hirsh, III, the President of Ottenheimer, and Mr. Haddock. (Pl.Res.Mot. to Dis., Aff. of A. Hirsh at ¶ 5.)

In 1992, as a result of negotiations initiated at a trade show in Bologna, Italy, Haddock purchased from Ottenheimer 10,000 copies of four pop-up books based on holiday themes for a total purchase order of 40,000 books. In 1993, as a result of negotiations initiated at trade shows in England, Haddock purchased 20,000 copies of two more pop-up books based on holiday themes for a total purchase of 40,000 books. In each instance, the books were

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printed in Colombia, South America, shipped to Haddock in the United Kingdom, and sold only in the United Kingdom and other commonwealth nations. (Def.Mot. to Dis., Decl. of P. Haddock at ¶ 8.) The purchase orders and checks, however, for each order were sent by Haddock to the offices of Ottenheimer in Maryland. (Id.) No License Agreement was involved.

The parties signed a second License Agreement in May 1998, under which Ottenheimer licensed to Haddock the rights to publish a set of four books known as the "Teaching Train Board Books" for a term of two years, ending in May 2000. (Pl.Res. Mot. to Dis., Ex. B, License Agreement, 5/11/98.) The parties agreed that the agreement "shall be construed as to both validity and performance and enforced in accordance with and governed by the laws of the State of Maryland, without giving effect to the principles of conflict of laws thereof. The forum for any disputes...