Walker v. Concoby, 5:99 CV 0838.

• Decision Date: 12 October 1999
• Docket Number: No. 5:99 CV 0838.,5:99 CV 0838.
• Citation: 79 F.Supp.2d 827
• Parties: Morton WALKER, D.P.M. dba Freelance Communications, Plaintiff, v. Robert CONCOBY, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

79 F.Supp.2d 827

Morton WALKER, D.P.M. dba Freelance Communications, Plaintiff, v. Robert CONCOBY, et al., Defendants.

No. 5:99 CV 0838.

United States District Court, N.D. Ohio, Eastern Division.

October 12, 1999.

Gregory D. Seeley, Matthew Kenyon Seeley, Seeley, Savidge & Ebert, Cleveland, OH, for Morton Walker, plaintiff.

Peter Turner, Conway, Marken, Wyner, Kurant & Kern, Cleveland, OH, for East Park Research, Inc., Les Nachman and Gordon Melcher, defendants.

Mark J. Skakun, III, John B. Schomer, Walter A. Lucas, Buckingham, Doolittle & Burroughs, Akron, OH, for David Andrew Nicol, defendant.

ORDER

DOWD, District Judge.

This matter is before the Court on Defendants Leslie Nachman and Gordon Melcher's Motion to Dismiss for Lack of Personal Jurisdiction and Improper Venue (Doc. No. 4), Plaintiff's Opposition (Doc. No. 10), and Defendants' Reply (Doc. No. 14).

For reasons set forth below, the motion is DENIED.

I.

Defendants Leslie Nachman and Gordon Melcher move to dismiss themselves from this suit on the grounds that the Complaint fails to state a proper ground for personal jurisdiction, this Court lacks personal jurisdiction over them, and this Court is an improper venue.

Plaintiff Morton Walker, a podiatrist, author and citizen of Connecticut, initiated this action in April of 1999 alleging copyright infringement, plagiarism, fraud and conspiracy. Mr. Walker's contentions are that Defendants authored, published and distributed a report entitled "Olive Leaf Extract: Nature's Secret for Vibrant Health and Long Life," which plagiarized and infringed his book, "Nature's Antibiotic: Olive Leaf Extract." Mr. Walker had originally endeavored to write the book pursuant to a contract with East Park Research, Inc. ("EPRI") whereby he agreed to refer to an EPRI nutritional supplement called "Eden Extract." The contract was terminated after EPRI reviewed the labeling rules of the United States Food and Drug Administration. Returning his advancement, Mr. Walker published the book anyway and EPRI followed with publication of the accused report.

Messrs. Nachman and Melcher are, respectively, Vice-President and President of EPRI, which is alleged to have produced and published the report. Defendants East Park Distributing and David Nicol are located in Canton, Ohio and are alleged to have distributed the report. Defendant Robert Concoby, also of Canton, is alleged to have authored the report. According to affidavits submitted with their motion, Messrs. Nachman and Melcher, who are domiciled in Nevada, traveled to Ohio to negotiate with David Nicol and Robert Concoby. Other than this negotiation, Messrs. Nachman and Melcher claim to have had no other occasion to visit Ohio. They further claim that they have never individually conducted business in Ohio and do not maintain agents in Ohio. Plaintiff does not dispute these claims.

II.

Defendants' main argument in favor of dismissal is that this Court lacks personal jurisdiction over them. The plaintiff bears the burden of establishing personal jurisdiction. Weller v. Cromwell Oil Co. 504 F.2d 927, 929 (6th Cir.1974). Where the defendant's motion to dismiss is supported by affidavits, the plaintiff normally must set forth specific facts showing the court has jurisdiction. Weller v. Cromwell Oil Co. 504 F.2d at 930. Here, however, the facts contained in the affidavits are undisputed; the question, then, is whether these facts, construed in a light favorable to plaintiff, make out a prima facie showing of jurisdiction. Market/Media Research, Inc. v. Union-Tribune Publishing Co. 951 F.2d 102, 104 (6th Cir.1991) cert. denied, 506 U.S. 824, 113 S.Ct. 79, 121 L.Ed.2d 43 (1992); General Acquisition, Inc. v. GenCorp., Inc. 766 F.Supp. 1460, 1485 (S.D.Ohio 1990).

To gain personal jurisdiction over a defendant in a diversity action, plaintiff must make two-pronged showing that (1) the defendant is amenable to suit under the forum state's long-arm statute; and (2) due process requirements of the Constitution are met. CompuServe, Inc. v. Patterson 89 F.3d 1257, 1262 (6th Cir.1996); National Can Corp. v. K Beverage Co. 674 F.2d 1134, 1136 (6th Cir.1982).¹

Ohio's long-arm statute permits jurisdiction over any corporation or person "(1) transacting any business in this state; (2) contracting to supply services or goods in this state; ... (3) Causing tortious injury in this state by an act or omission outside this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state; ... or (6) Causing tortious injury in this state to any person by an act outside this state committed with the purpose of injuring persons, when he might reasonably have expected that some person would be injured thereby in this state." O.R.C. § 2307.382(A).

As an initial matter, it is necessary to resolve the issue of whether Ohio's longarm statute extends as far as notions of federal due process allow. If so, the two-pronged analysis of personal jurisdiction collapses into one and there is no need to examine Ohio's long-arm statute separately from the constraints of due process. Aristech Chem. Int'l Ltd. v. Acrylic Fabricators Ltd., 138 F.3d 624, 627 (6th Cir. 1998).

In Goldstein v. Christiansen 70 Ohio St.3d 232, 638 N.E.2d 541 (1994), the Ohio Supreme Court made it plain that Ohio's long-arm statute and federal due process are not co-extensive. The court found "erroneous" a lower court's statement that the General Assembly had intended to give Ohio courts jurisdiction to the limits of the Due Process Clause. Id. at 238 fn. 1, 638 N.E.2d 541, quoting McCormac, Ohio Civil Rules Practice (2 Ed.1992) 49, § 3.10 ("Ohio has not extended the long-arm jurisdiction to the limits of due process"), 4 Harper & Solimine, Anderson's Ohio Civil Practice (Supp.1993) 37, § 150.33, and 1 Casad at 4-8 to 4-9, § 4.01[1][b]. The Ohio Supreme Court also pointed out that the analysis of personal jurisdiction properly occurs in two parts. Id.

On the strength of Goldstein, the court in Highway Auto Sales, Inc. v. Auto-Konig of Scottsdale, Inc. 943 F.Supp. 825 (N.D.Ohio 1996) recognized that Ohio's long-arm statute is not to be equated with the limits of federal due process. Id. at 828. Numerous other courts concur. See e.g. Cole v. Mileti 133 F.3d 433, 436 (6th Cir.1998); LSI Industries, Inc. v. Hubbell Lighting, Inc., 64 F.Supp.2d 705, 706-07 (S.D.Ohio); Douglas v. Modern Aero. Inc. 954 F.Supp. 1206, 1210 (N.D.Ohio 1997); Hoover Co. v. Robeson Industries Corp., 904 F.Supp. 671, 673 (N.D.Ohio 1995); Glasstech, Inc. v. TGL Tempering Systems, Inc. 50 F.Supp.2d 722, 725 (N.D.Ohio 1999).

This Court agrees with Highway Auto Sales — the analysis of the scope of Ohio's long-arm statute "requires more than mere passing reference." 943 F.Supp. at 828. However, despite the Ohio Supreme Court's seemingly unequivocal statement in Goldstein, some courts have continued to equate the analysis under Ohio's long-arm statute with that under the Due Process Clause.² In CompuServe, Inc. v. Patterson, for instance, the Sixth Circuit held that "it is settled law in Ohio ... that the "transacting business" clause of [the long-arm statute] was meant to extend to the federal constitutional limits of due process...." 89 F.3d at 1262. Support for this proposition is weak, however, since CompuServe cites only pre-Goldstein federal opinions and does not cite Goldstein at all.

The conclusion seems inescapable, then, that Ohio's long-arm statute is not coextensive with federal due process. See e.g. Heritage Funding and Leasing v. Phee 120 Ohio App.3d 422, 425, 698 N.E.2d 67 (1997); Corporate Partners, L.P. v. Nat'l Westminster Bank PLC 126 Ohio App.3d 516, 524, 710 N.E.2d 1144 (1998). Therefore, when Ohio's long-arm statute is the basis for personal jurisdiction, the personal jurisdiction analysis requires separate discussions of whether the defendant is amenable to suit under Ohio's long-arm statute and whether due process requirements of the Constitution are met.

III.

Under Ohio's long-arm statute, the exercise of jurisdiction over Messrs. Nachman and Melcher is appropriate. The "transacting business" clause in Ohio's long-arm statute is broader than the word `contract' and encompasses `carrying on' business and `having dealings' within the state. Kentucky Oaks Mall Co. v. Mitchell's Formal Wear, Inc. 53 Ohio St.3d 73, 75, 559 N.E.2d 477 (1990). Defendant's negotiation of the distribution and authorship of the accused report constitutes a "transaction" of business for purposes of Ohio's long-arm statute. Kentucky Oaks Mall Co. v. Mitchell's Formal Wear Inc., 53 Ohio St.3d 73, 75, 559 N.E.2d 477 (1990) ("transact" means to "prosecute negotiations").

Further, the fact that Defendants were physically present in Ohio during these negotiations weighs strongly in favor of personal jurisdiction, especially since Ohio's long-arm statute does not necessarily require physical presence in the state. Hammill Mfg. Co. v. Quality Rubber Products, Inc. 82 Ohio App.3d at 374, 612 N.E.2d 472; Ucker v. Taylor 72 Ohio App.3d 777, 596 N.E.2d 507 (1991). Further, Defendants must have engaged in numerous telephone, facsimile and other communications to Ohio in order to facilitate the authorship and distribution of the accused report, and these communications help constitute a basis for applying Ohio's long-arm statute. Heritage Funding and Leasing Co. v. Phee 120 Ohio App.3d at 427, 698 N.E.2d 67; Hirschl v. Evans, 1996 WL 146090 at *5-8 (1996).

In addition, the fact that the distribution and authorship agreements created ongoing duties and obligations between the non-resident and resident defendants weighs in favor of personal jurisdiction, Kentucky Oaks Mall Co. 53 Ohio St.3d at 76, 559 N.E.2d 477, as does the dissemination of allegedly infringing material in Ohio. Goldstein v. Christiansen, 70 Ohio St.3d at 236, 638 N.E.2d 541; ...