The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER GRANTING PERSONAL JURISDICTION DEFENDANT'S MOTION TO DISMISS FOR LACK OF
On December 3, 2008, Defendant filed a motion to dismiss Plaintiff's complaint for lack of personal jurisdiction. (Doc. No. 8.) After receiving the parties' briefing, the Court heard oral argument on Defendant's motion to dismiss. The Court granted Plaintiff's motion for jurisdictional discovery and denied Defendant's motion to dismiss, granting leave to re-file after limited discovery. (Doc. No. 47.)
On July 28, 2009, Defendant filed a renewed motion to dismiss Plaintiff's First Amended Complaint for lack of personal jurisdiction. (Doc. No. 67.) On August 10, 2009, Plaintiff filed an opposition to Defendant's motion to dismiss. (Doc. No. 69.) On August 17, 2009, Defendant filed a reply in support of its renewed motion. (Doc. No. 78.) On August 21, 2009, the Court submitted Defendant's motion to dismiss. (Doc. No. 89.) The Court notes the parties' evidentiary objections and disregards evidence to the extent warranted. The Court takes judicial notice of such matters as are appropriate for judicial notice.
Plaintiff CollegeSource and Defendant AcademyOne are competitors. (FAC. ¶ 48.) Each company offers information and data services related to the college course equivalency and transcript reconciliation to facilitate transfer of students from one college to another. (Id.; Moldoff Decl. ISO Mot. to Dismiss ["Moldoff Decl."] ¶ 4.) CollegeSource has filed a First Amended Complaint against AcademyOne alleging eight causes of action for: (1) violation of the federal computer fraud and abuse act, 18 U.S.C. § 1030(g); (2) California computer crimes under Cal. Pen. Code § 502(e); (3) breach of contract; (4) misappropriation; (5) unjust enrichment; (6) trademark infringement; (7) Lanham Act unfair competition; and (8) violation of California unfair competition law under Cal. Bus. & Prof. Code § 17200 et seq. Defendant moves to dismiss the complaint on the grounds that this Court lacks personal jurisdiction over AcademyOne. The Complaint alleges that in 2005, Defendant AcademyOne approached Plaintiff CollegeSource in an attempt to acquire CollegeSource's digitized college course catalogs. (FAC ¶ 51-52.) After Plaintiff refused, agents of Defendant allegedly posed as legitimate users to gain access to CollegeSource's information, copied that information, and posted it on its own website. (Compl. ¶¶ 52-59.)
Defendant AcademyOne is a Pennsylvania corporation operating in Pennsylvania. (Moldoff Decl. ¶ 1.) Defendant has no officers, employees, offices, warehouses, or real property in California. (Moldoff Decl. ¶ 2.) Defendant holds no bank accounts in California and does not advertise in California. (Id.)
AcademyOne operates a website accessible to any internet user. Plaintiff has submitted a report showing that Defendant's website has received approximately 2.3 million hits (file download requests) from approximately 26,000 California visitors. (Clark Decl. in Opp. to Mot. to Dismiss ["Clark Decl."] ¶ 6, Ex. B.) Defendant argues that these numbers are misleading, since these hits may come from automatic programs tied to search engines based in California. (Landau Decl. ISO Mot. to Dismiss ["Landau Decl."] Ex. B at 6.) Additionally, Defendant argues that a site visit from a California IP address may not indicate a visit from a California user, since the IP address may come from an internet service provider. (Landau Decl. Ex. A.) Defendant further explains that consumers must purchase a subscription to view and take advantage of its advanced systems. (Moldoff Decl. ¶ 5.) AcademyOne's subscribers are "typically academic institutions and state higher education agencies." (Id.) Defendant has no subscribers located in California and makes no profit from non-subscribers. (Id.) Though AcademyOne's website contains course catalog information for several California universities, Defendant avers that it obtained this information without assistance from any California school. (Moldoff Decl. ¶ 13.)
In 2005 and 2006, four AcademyOne employees registered for demo memberships with Plaintiff CollegeSource in order to "assess potential business opportunities." (Moldoff Decl. ¶ 11; Macario Decl. in Opp. to Mot. to Dismiss ["Macario Decl."] ¶¶ 18-19.) These demo subscriptions allowed users to view CollegeSource material and download no more than three course catalog files. (Moldoff Decl. ¶ 11.) Defendant denies copying any material from Plaintiff's website. (Id.) During that same time period, AcademyOne contacted CollegeSource to explore the possibility of cooperation, but no business materialized from these conversations. (Karetnick Decl. ISO Mot. to Dismiss ["Karetnick Decl.] Ex. E.)
Plaintiff also alleges that Defendant infringed its trademarks "Collegesource" and "Career Guidance Foundation" by purchasing these terms from internet search engines so that searches for these terms yield advertisements for Defendant's websites. (FAC ¶ 68.)
Defendant states that it did not select Plaintiff's marks as "Adwords." (Moldoff Decl. ¶ 20.) Instead, third party search engine providers used software to derive terms relating to Defendant's business. (Id.) Defendant owns a total of more than 500 "Adwords." (Supp. Quinn Decl. in Opp. to Mot. to Dismiss ["Supp. Quinn Decl."] Ex. Q.) Some of these terms incorporate the word "California" or the abbreviation "CA." (Id.)
In August 2008, AcademyOne's CEO visited California to attend a policy conference of state higher education executives and sponsor a speaker on energy conservation. (Moldoff Decl. ¶ 14.) AcademyOne states that no actual buyers of its products were in attendance at the conference and that no business resulted from the conference. (Id.) Plaintiff argues that the state entities at the convention were potential customers of CollegeSource and AcademyOne. (Crone Decl. in Opp. to Mot. to Dismiss ¶ 38.) Plaintiff states that AcademyOne ran a booth at the convention, distributed marketing materials at the opening event, and purchased an advertisement in the conference agenda booklet. (Id. ¶¶ 38, 39, 41, Ex. C.) The organization behind the conference holds several such conferences per year and AcademyOne has attended several in various locations across the country. (Moldoff Decl. ¶ 14.)
I. Motion to Dismiss for Lack of Personal Jurisdiction ...