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LIFEWAY FOODS, INC. v. FRESH MADE

October 3, 1996

LIFEWAY FOODS, INC., an Illinois Corporation, Plaintiff,
v.
FRESH MADE, INC., a Pennsylvania Corporation, Defendant.



The opinion of the court was delivered by: GETTLEMAN

 Plaintiff Lifeway Foods, Inc., alleges in Count I of its complaint that defendant Fresh Made, Inc., engaged in unfair competition in violation of Section 43(a) of the Lanham Act (15 U.S.C. § 1125(a)). In Count II, Plaintiff alleges common law trademark infringement by defendant. In Count III, Plaintiff alleges unfair competition by defendant in violation of the Illinois Deceptive Trade Practices Act (815 ILCS 510/2(2)). Plaintiff asserts that this court possesses subject matter jurisdiction under 15 U.S.C. § 1121(a), 28 U.S.C. § 1338(a) and (b), and 28 U.S.C. § 1367(a).

 Pursuant to Federal Rule of Civil Procedure 12(b)(5) and (2), defendant filed a motion to dismiss for lack of proper service *fn1" and lack of personal jurisdiction. Defendant asserts that it has never sold its products in Illinois and has never purposely taken action toward selling its products in Illinois. For the reasons set forth below, the court grants defendant's motion.

 FACTS

 Plaintiff is an Illinois corporation with its principal place of business in Cook County, Illinois. Plaintiff engages in the manufacture, sale, and distribution of kefir, a drinkable fermented culture product similar to yogurt. Plaintiff markets kefir products in forty states.

 Defendant is a Pennsylvania corporation with its principal place of business in Philadelphia, Pennsylvania. Defendant also produces and distributes kefir products for retail sale. Defendant's distribution area partially overlaps that of Plaintiff.

 Plaintiff sells its fruit-flavored kefir in plastic bottles fashioned to resemble glass milk bottles, with rectangular labels displaying pictures of fruit. Defendant sells its fruit-flavored kefir in a similar container and also uses rectangular labels displaying pictures of fruit. According to defendant's affidavit (undisputed by plaintiff), defendant does not sell its fruit-flavored kefir in Illinois.

 Defendant also manufactures and packages a product called "The Slender Cow." The Slender Cow label reveals that the product is a "buttery spread made with kefir." The label is round and displays a picture of a cow. Plaintiff has not alleged that it makes or distributes a similar product. Plaintiff claims to have purchased Slender Cow at three stores in Cook County, Illinois, on August 9, 1996.

 DISCUSSION

 Plaintiff must provide sufficient evidence to establish a prima facie case of personal jurisdiction. Turnock v. Cope, 816 F.2d 332, 333 (7th Cir. 1987). Plaintiff's allegations are taken to be true unless controverted by defendant's affidavits, and conflicts must be resolved in plaintiff's favor. Id.; John Walker & Sons, Ltd. v. DeMert & Dougherty, Inc., 821 F.2d 399, 402 (7th Cir. 1987).

 To exercise personal jurisdiction over a defendant in a federal question case, a federal court must determine that: (1) bringing the defendant into the court accords with Fifth Amendment due process principles; and (2) the defendant is amenable to process from the court. United States v. Martinez De Ortiz, 910 F.2d 376, 381 (7th Cir. 1990); see also Omni Capital Int'l v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104, 98 L. Ed. 2d 415, 108 S. Ct. 404 (1987). In federal question cases, Fifth Amendment due process is satisfied where the defendant has "sufficient contacts with the United States as a whole rather than any particular state or other geographic area." Martinez De Ortiz, 910 F.2d at 381; see also Lisak v. Mercantile Bancorp, Inc., 834 F.2d 668, 671-72 (7th Cir. 1987), cert. denied, 485 U.S. 1007, 99 L. Ed. 2d 700, 108 S. Ct. 1472 (1988); Fitzsimmons v. Barton, 589 F.2d 330, 332-35 (7th Cir. 1979). Defendant is a Pennsylvania corporation engaging in business in the United States; its contacts with the United States are sufficient to satisfy due process.

 To determine that a defendant is amenable to process from the court in a federal question case, the court looks to the applicable federal statute. Omni Capital, 484 U.S. at 104; Martinez De Ortiz, 910 F.2d at 381. In Omni Capital, the Court explained (484 U.S. at 104):

 
Before a court may exercise personal jurisdiction over a defendant, there must be more than notice to the defendant and a constitutionally sufficient relationship between the defendant and the forum. There also must be a basis for the defendant's amenability to service of summons. Absent consent, this means there must be authorization for service of summons on the defendant.

 Congress authorizes service of summons in federal question cases in Federal Rule of Civil Procedure 4(k), which ...


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