Scc Communications Corp. v. Anderson, CIV.A. 00-WM-1681.

• Decision Date: 22 March 2002
• Docket Number: No. CIV.A. 00-WM-1681.,CIV.A. 00-WM-1681.
• Parties: SCC COMMUNICATIONS CORPORATION, a Delaware corporation, Plaintiff, v. J. Clarke ANDERSON, an individual; et al., Defendants.
• Court: U.S. District Court — District of Colorado

Page 1257

195 F.Supp.2d 1257

SCC COMMUNICATIONS CORPORATION, a Delaware corporation, Plaintiff, v. J. Clarke ANDERSON, an individual; et al., Defendants.

No. CIV.A. 00-WM-1681.

United States District Court, D. Colorado.

March 22, 2002.

C. Dennis Loomis, Lord, Bissell & Brook, Los Angeles, CA, for plaintiff.

Thomas S. Birney, Dorr, Carson, Sloan & Birney, PC, Denver, CO, Arthur O. Rogers, II, Jeffrey A. Sadowski, Howard & Howard, Bloomfield Hills, MI, for defendants.

ORDER ON MOTION TO DISMISS OR TO TRANSFER

MILLER, District Judge.

This matter is before me on Defendants' motion to dismiss for improper venue under Fed.R.Civ.P. 12(b)(3) or, in the alternative, to transfer this case to the Western District of Michigan pursuant to 28 U.S.C. § 1404(a).¹ For the reasons that follow,² I conclude that this court lacks personal jurisdiction over the Defendants. Rather than dismiss, however, I transfer this case to the Western District of Michigan in the interests of justice pursuant to 28 U.S.C. § 1631.³

Introduction

This is a federal question case arising under 15 U.S.C. § 1051 et. seq. Plaintiff, SCC Communications (SCC), is a Delaware Corporation with its headquarters in Boulder, Colorado. Defendants comprise an assorted collection of individuals and entities: A.J. Boggs & Company (A.J.Boggs), a Michigan Corporation with its principal place in Okemos, Michigan; J. Clarke Anderson (Anderson), Managing Director and Secretary of A.J. Boggs; Emergency Services Network, an entity owned by A.J. Boggs; and Does one through five, who acted in some unknown capacity.

SCC brought this action for unfair competition under federal and state law, federal trademark dilution, and cyberpiracy. Plaintiff seeks damages as well as injunctive and declaratory relief.

Background

A.J. Boggs was formed in 1989 and has been incorporated since December 31, 1991. The company appears to be in the business of providing computer systems integration, internet server products and engineering services.⁴ On May 16, 1996, A.J. Boggs registered the Internet domain name "911.net" with Network Solutions, Inc.⁵ The registration listed Anderson as the administrative contact.

SCC sells operating system infrastructure, application software, and data-base management services to emergency response providers, which include public safety agencies. SCC designed its systems to facilitate the routing of a "9-1-1" emergency phone call to the appropriate point and, in turn, allow the call's recipient to immediately identify the call's origin.

On November 24, 1998, more than two years after A.J. Boggs registered the "911.net" domain name, SCC was issued a U.S. Trademark Registration for "9-1-1NET." Additionally, SCC owns a U.S. Trademark Registration Application for "911.net" filed January 19, 2000.

During the summer of 2000, SCC used the "911.net" domain name to access the A.J. Boggs web site and printed several screen shots which are attached to its response.⁶ The screen shots provide important information about the site's content, including information about the company and its products, services and clients, telephone numbers, and office and electronic mail (e-mail) addresses. A visitor to the site could retrieve this information by accessing interior pages via image hyperlinks.⁷ The e-mail addresses were also hyperlinks, allowing a visitor to contact a company employee directly. Nevertheless, the site did not allow a visitor to purchase products or services from A.J. Boggs through the site itself.

Upon discovering that the "911.net" domain name was in preexisting use, SCC contacted Anderson claiming that Defendants' registration and maintenance of the "911.net" domain name violated SCC's legal rights. Defendants disagreed and the parties negotiated whether the Defendants would transfer the domain name. Defendants rejected SCC's offer, subsequently requested a higher transfer price, and ultimately threatened to use or authorize the use of the domain name in SCC's business marketplace.

Standard of Review

Once a defendant moves to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of establishing that the exercise of jurisdiction is appropriate.⁸ To meet this burden, a plaintiff must present a prima facie showing and any factual disputes are resolved in the plaintiff's favor.⁹ I may decide this motion based on allegations presented in the complaint, affidavits and other written materials.¹⁰ However, only well pled facts, as opposed to conclusory allegations, must be accepted as true.¹¹

Discussion

In federal question cases, I may exercise personal jurisdiction over the parties to the extent authorized by constitution and statute.¹² Where, as here, the federal statute does not authorize nationwide service for in personam actions, a party may assert jurisdiction exists to the extent allowed by the state in which the district court sits.¹³ Therefore, I look to Colorado's statutes for jurisdictional guidance.

Colorado's long-arm statute has been interpreted to extend jurisdiction "to the fullest extent permitted by the due process clause of the fourteenth amendment to the United States Constitution."¹⁴ Thus, my analysis turns on a single inquiry, whether the exercise of personal jurisdiction over defendants comports with due process.¹⁵

"The Due Process Clause protects an individual's liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful `contacts, ties, or relations.'"<sup>16</sup> A court's exercise of jurisdiction, however, will not violate due process if the defendant has "certain minimum contacts with [the forum] such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'"¹⁷

The minimum contacts standard may be met either through the exercise of general or specific jurisdiction.¹⁸ General jurisdiction arises where the defendant has continuous and systematic contacts with the forum.¹⁹ Here, SCC does not assert that this Court has general jurisdiction over Defendants and claims instead that Defendants have sufficient contacts with Colorado to allow the exercise of specific personal jurisdiction. Specific jurisdiction may be exercised if the defendant has purposefully directed its activities toward the forum's residents and the cause of action arises from or relates to those activities.²⁰

To meet the first prong of the specific jurisdiction standard — Defendants' purposeful direction of their activities toward Colorado—Plaintiff propounds three theories: first, the nature of the Defendants' web site; second, application of the established effects doctrine; and, finally, the parties' actual negotiations.

1. Nature of the Web Site

Although courts have only recently applied jurisdictional principles to Internet-related conduct, a fairly well-defined distinction between interactive and passive web sites has already evolved. A passive site is one where the owner has merely posted information on a site accessible to a user in a different forum.²¹ Access from a foreign forum alone does not subject a site's owner to the jurisdiction of that forum.²² The creation of a passive web site, by itself, is not considered an act purposefully directed toward the forum state.²³

At the other end of the spectrum is the interactive site where the site's owner clearly conducts business over the Internet between different fora.²⁴ This would occur, for example, when the parties negotiate and enter into contracts requiring the repeated and knowing transmission of information.²⁵ In such cases, the exercise of personal jurisdiction would be appropriate over the site's owner.²⁶

Most sites, however, are not easily classified as they are neither fully interactive nor wholly passive. Although sites may be somewhat interactive, such as allowing for the exchange of information, the jurisdictional analysis ultimately depends on the "level of interactivity and commercial nature of the exchange of information that occurs on the Web site."²⁷ That is, the greater the interactivity the more reasonable it is to find that the defendant purposefully directed activities toward the forum state and consequently should have foreseen being haled into the forum's jurisdiction.

Other circuits give some guidance. The Fifth Circuit held a web site that posted information about the company's products, provided a printable mail-in order form, and listed a toll-free telephone number and an e-mail address did not subject the company to personal jurisdiction.²⁸ Without the ability to make on-line purchases, the court held the web site to be passive and noted that its decision would be the same even if the e-mail address were an e-mail link allowing a visitor to contact the site's owner directly.²⁹

The Ninth Circuit specifically addressed the interactivity of an e-mail hyperlink.³⁰ The defendant in that case created a site advertising web-based professional services and provided a phone number and an e-mail link allowing a visitor to "introduce himself, and invit[ing] a company not on the web—but interested in getting on the web—to `Email us to find out how!'"³¹ However, the site did not offer an option of signing up for service, and the court concluded that the site, even with an e-mail hyperlink, was an "essentially passive web page."³²

Turning to the A.J. Boggs site, it incorporates several image and underlined hyperlinks. However, one may only link to different pages within the site or to e-mail addresses allowing the visitor to write to company employees. For the most part, the site limits a visitor to retrieval of company information. A visitor does not have the option to purchase products or services, and no evidence exists that suggests the site caused a Colorado resident to do business with Defendants. As such, although several e-mail hyperlinks are present, I find the A.J. Boggs web site was essentially passive and conclude that Defendants did not, through...