Roblor Marketing Group, Inc. v. Gps Industries
| Decision Date | 06 July 2009 |
| Docket Number | Case No. 08-21496-CIV. |
| Parties | ROBLOR MARKETING GROUP, INC., Plaintiff, v. GPS INDUSTRIES, INC., et al., Defendants. |
| Court | U.S. District Court — Southern District of Florida |
Alejandro Alvarez, Piedra & Associates, P.A., Coral Gables, FL, Brian Douglas Hancock, Douglas Lee Bridges, W. Lewis Garrison, Jr., Heninger Garrison Davis LLC, Birmingham, AL, John F. Ward, Michael G. Gabriel, Ward & Olivo, New York, NY, for Plaintiff.
Catherine J. Maclvor, Jeffrey Eric Foreman, Maltzman Foreman PA, Kevin Crow Kaplan, David John Zack, Coffey Burlington, Leora Herrmann, Peretz Chesal & Herrmann, PL, Michael Eric Tschupp, Kluger Peretz Kaplan & Berlin, John Fulton, Jr., John Cyril Malloy, III, Oliver Alan Ruiz, Malloy & Malloy, Miami, FL, Alfonso Garcia Chan, Michael W. Shore, Rajkumar Vinnakota, Shore Chan Bragalone LLP, Dallas, TX, Morgan Lowery Swing, Coffey Burlington, Coconut Grove, FL, John Matthew Guard, Holland & Knight, Tampa, FL, Jeffrey Kamenetsky, Christopher & Weisberg, Jacqueline Clementine Tadros, Fort Lauderdale, FL, Jeff Toler, Toler Law Group, Austin, TX, Jordan S. Weinstein, Thomas J. Fisher, Oblon Spivak McClelland Maier & Neustadt, Alexandria, VA, James K. Sakaguchi, Neal M. Cohen, Valerie L. Sarigumba, Vista IP Law Group LLP, Kenneth G. Parker, Teuton Loewy & Parker LLP, Irvine, CA, for Defendants.
ORDER ADOPTING MAGISTRATE'S REPORTS AND RECOMMENDATIONS AND DISMISSING KARRIER COMMUNICATIONS AND INTELLIGOLF, INC.
THE MATTER was referred to the Honorable Edwin G. Torres, United States Magistrate Judge for a Report and Recommendation on Defendant Karrier Communications' Motion to Dismiss for Lack of Personal Jurisdiction and Improper Venue (D.E. No. 61), filed on August 15, 2008 and Defendant Intelligolf, Inc.'s Motion to Dismiss for Lack of Personal Jurisdiction and Improper Venue (D.E. No. 68), filed on August 22, 2008. The Magistrate Judge filed two Reports and Recommendations (D.E. Nos. 210 & 211) on June 3, 2009. The Court has reviewed the entire file and record. The Court has made a de novo review of the Magistrate Judge's Reports and Recommendations, and being otherwise fully advised in the premises, it is
ADJUDGED that:
(1) Defendant Karrier Communications' Motion to Dismiss for Lack of Personal Jurisdiction and Improper Venue is GRANTED without prejudice to refile in a court having personal jurisdiction over Karrier and in a district with proper venue; and
(2) Defendant Intelligolf, Inc.'s Motion to Dismiss for Lack of Personal Jurisdiction and Improper Venue is GRANTED without prejudice to refile in a court having personal jurisdiction over Intelligolf, Inc. and in a district with proper venue.
This matter is before the Court on Defendant Karrier Communications's ("Karrier") Motion to dismiss Roblor Marketing Group, Inc.'s ("Roblor") Complaint for lack of personal jurisdiction pursuant Federal Rule of Civil Procedure 12(b)(2) and improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3).1 [D.E. 61; 174].
On May 23, 2008, Roblor filed a Complaint against twelve defendants, including Karrier, for infringement of United States patent No. 5,507,485 (the "Patent") in the Southern District of Florida. The patent was issued on April 16, 1996 and features a portable device including GPS technology that enables users to, among other things, view golf courses and keep track of their shots and scores.
On August 15, 2008, Karrier filed a Motion to dismiss for improper venue alleging that: (1) venue is not available over Karrier as an individual under 28 U.S.C. § 1391 and specifically § 1391(c); (2) 28 U.S.C. § 1400(b) is the exclusive venue provision applicable to Karrier; (3) Karrier resides in another state, i.e. California and is not a corporation; (4) Karrier does not have a regular place of business in the Southern District of Florida; (5) Karrier has not performed any act of infringement of the Patent in the Southern District of Florida; and finally (6) Roblor has not even alleged facts that would support venue in the Southern District of Florida. [D.E. 61].
On September 03, 2008, Roblor filed a Response and reiterated that venue is proper because: (1) Karrier is a partnership and not a sole proprietorship; (2) therefore, Karrier is subject to 28 U.S.C. § 1391(c) and 28 U.S.C. § 1400(b) as a partnership and resides in Florida; and (3) Karrier has committed acts of infringement and has a regular and established place of business in Florida. [D.E. 80]. On September 8, Karrier replied. [D.E. 94].
Following a hearing on this and other motions, on October 29, 2009, Karrier filed, with leave of this Court, a supplemental Motion to dismiss adding a lack of personal jurisdiction claim to its improper venue argument. [D.E. 173-74]. Specifically Karrier alleges that the Southern District of Florida does not have jurisdiction over it because the Florida's long-arm statute does not apply to Karrier's actions or, alternatively, because jurisdiction in Florida over Karrier would not meet the requirements of constitutional due process. (Karrier's Revised Mot. to Dismiss 10-18).
On December 11, 2008, this Court gave the parties the opportunity to file supplemental memoranda with respect to Karrier's and Intelligolf, Inc's ("Intelligolf") Motions to dismiss for lack of jurisdiction and improper venue no later than January 23, 2009.2 [D.E. 179]. On January 13, 2009, we granted Roblor's Motion for extension of time to complete jurisdictional discovery allowing the parties to conduct discovery through February 27, 2009 and directing Roblor to supplement its opposition to the pending Motions to no later than March 13, 2009. [D.E. 185]. On February 24, 2009, we entered an order on a Motion for clarification extending the jurisdictional discovery deadline to March 20, 2009 and the deadline for filing supplemental memoranda for all parties to April 3, 2009. [D.E. 191]. Finally, on March 18, we issued an order granting Karrier and Intelligolf Inc. ("Intelligolf") an extension of time to file their supplemental memoranda until April 10, 2009.
While Roblor saw no need to file a supplemental memorandum, Karrier and Intelligolf jointly filed a sealed memorandum on the results of the jurisdictional discovery undertaken in support of their respective Motions to dismiss. [D.E. 203-4].
Roblor is a corporation with a place of business located in Pompano Beach, Florida. . Roblor is the owner of all rights, title and interests in and to the Patent, including the right to sue. Id.
Karrier is a business registered in California as an individual and only licensed to do business in California. . Karrier's activity is listed as "computer services and web design" and Karrier mainly provides marketing services for engineers. (Karrier's Revised Mot. to Dismiss Ex. B).
Michael Bryant and James Simpkins developed the allegedly infringing software application Intelligolf. (Karrier's Revised Mot. to Dismiss Ex. C, D). They then marketed Intelligolf through Karrier as Karrier's independent contractors. Id. In 2007, Karrier stopped marketing the Intelligolf software and assigned to Intelligolf all rights, titles, and interests in the Intelligolf software. .
Karrier does not have an address, offices or employees in Florida. . Karrier does not have a telephone number and does not receive telephone messages and mails in Florida. (Karrier's Revised Mot. to Dismiss Ex. B). Karrier does not sell or make demonstrations in Florida. Id. Its only contact with Florida is its two websites, www.karrier.com and www. karriercomunications.com, which are identical and consist of one web page advertising Karrier's marketing services for engineers. (Karrier's Revised Mot. to Dismiss Ex. F; G). The message displayed invites potential customers to contact Karrier through its e-mail. Id. Karrier's websites page also informs that "Karrier Communications' clients have included ... the inventors of ... Intelligolf." Id. No sale or commercial exchange, however, can be made through the websites.3 Id. Yet Karrier's websites are accessible world-wide. Id.
Karrier alleges that this Court lacks subject-matter jurisdiction because Karrier's activities do not meet the requirements of the Florida long-arm statute and, in the alternative, due process prevents this Court from exercising jurisdiction over Karrier. (Karrier's Revised Mot. to Dismiss 11-14).
Federal Circuit law governs the issue of whether a court has personal jurisdiction over a defendant in a patent infringement claim. Elecs. For Imaging, Inc. v. Coyle, 340 F.3d 1344, 1348 (Fed.Cir. 2003) (citing Akro Corp. v. Luker, 45 F.3d 1541, 1543 (Fed.Cir.1995)).
Federal Rule of Civil procedure 12(b)(2) allows a dismissal of a complaint for lack of personal jurisdiction. Fed. R. Civ. Pro. 12(b)(2). "[I]n the absence of an evidentiary hearing, a plaintiff need only to make a prima facie showing that defendants are subject to personal jurisdiction." Elecs. For Imaging, Inc., 340 F.3d at 1349 (citing Deprenyl Animal Health,...
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