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Primack v. Pearl B. Polto

July 8, 2009

MERRILL PRIMACK D/B/A CREDIT LIFELINE PLAINTIFF,
v.
PEARL B. POLTO, INC., PEARL B. POLTO, AND AUTHORS & ARTISTS PUBLISHERS OF NEW YORK, INC., DEFENDANTS.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

This matter is before the Court on the motion to dismiss of Defendants Pearl B. Polto, Inc. and Pearl B. Polto ("the Polto Defendants").*fn1 The Polto Defendants seek dismissal of Plaintiff's complaint for lack of personal jurisdiction [10] pursuant to Federal Rule of Civil Procedure 12(b)(2). Having carefully reviewed the briefs [11, 23, 24], the Court grants the motion [10] and dismisses both Polto Defendants from this case for lack of personal jurisdiction.

I. Background

Plaintiff Merrill Primack ("Merrill"), d/b/a Credit Lifeline, a resident and citizen of Chicago, initiated this action under the Lanham Act, 15 U.S.C. § 1051 et seq., against Defendants Pearl B. Polto Inc. ("Polto Inc.") and Pearl B. Polto, individually ("Ms. Polto"). Plaintiff subsequently filed his operative First Amended Complaint ("FAC") adding Defendant Authors & Artists Publishers of New York, Inc. ("AAPN"). Plaintiff seeks to recover for injuries allegedly sustained as a result of Defendants' use of the mark "Credit Lifeline," including publishing, advertising and selling online a book entitled Credit Lifeline. Plaintiff alleges that the use of "Credit Lifeline" by Defendants' business constitutes trademark dilution, trademark infringement, and unfair competition under federal and Illinois state law. The Polto Defendants filed a motion to dismiss the original complaint for lack of personal jurisdiction. After Plaintiff filed his FAC, the parties agreed that the previously filed motion to dismiss would be deemed to be directed at the FAC and the parties completed briefing on the motion.

According to the complaint, Plaintiff has used the "Credit Lifeline" mark in connection with a consulting business in the field of commercial lending services since December 2001. FAC ¶ 8. In 2008, Plaintiff registered "Credit Lifeline" as a trademark with the United States Patent and Trademark Office. Id. at ¶ 9. Plaintiff has extensively advertised and promoted "Credit Lifeline." Id. at ¶ 10.

Polto Inc. is a Pennsylvania corporation which does not have offices, employees, property, physical non-digital advertising, sales or agents in Illinois. Declaration of Pearl B. Polto ("Polto Decl.") ¶¶ 2-3. Ms. Polto resides in Philadelphia, Pennsylvania. Id. at ¶ 1. She has authored several books on consumer-credit counseling including the book, Credit Lifeline, published by AAPN in 2002. Id. at ¶¶ 4-5. In addition to publishing Credit Lifeline,AAPN operates a website to advertise and sell Ms. Polto's book Credit Lifeline among other materials it publishes. Id. at ¶ 6. Between 2005 and October 2008, AAPN sold approximately 30 copies of Credit Lifeline. Id. at ¶ 7. AAPN has its principal place of business in Dryden, NY. FAC ¶ 6.

Ms. Polto traveled to Illinois on one occasion. Polto Decl. ¶ 8. In 2006, she flew to Chicago to conduct a workshop on consumer credit. Id. She waited for one hour at a Chicago-area church, the site where the workshop was supposed to take place, and when no one showed up to attend the workshop, she flew back to Philadelphia. Id.

II. Analysis

A. Legal Standard on Motion to Dismiss for Lack of Personal Jurisdiction

An action against a party over whom the Court lacks personal jurisdiction must be dismissed. SeeFed. R. Civ. P. 12(b)(2). Plaintiff has the burden of establishing a prima facie case of personal jurisdiction. See Steel Warehouse of Wis., Inc. v. Leach, 154 F.3d 712, 714 (7th Cir. 1998). When determining whether a plaintiff has met his burden, jurisdictional allegations pleaded in the complaint are accepted as true unless proved otherwise by defendants' affidavits or exhibits. See Purdue Research Foundation v. Sanofi-Sythelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003); Travelers Cas. & Sur. Co. v. Interclaim (Bermuda) Ltd., 304 F. Supp. 2d 1018, 1021 (N.D. Ill. 2004).

B. Personal Jurisdiction

In federal question cases, personal jurisdiction analysis has both a constitutional and statutory element. The Court must determine that (1) haling the defendant into court accords with the Due Process Clause of the Fifth Amendment; and (2) the defendant is amenable to service of process from the court. Lifeway Foods, Inc. v. Fresh Made, Inc.,940 F. Supp. 1316, 1318 (N.D. Ill. 1996) (citing United States v. De Ortiz, 910 F.2d 376, 381-382 (7th Cir. 1990); Omni Capital Int'l v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987)). Due process in federal question cases requires that each party have sufficient contacts with the United States as a whole rather than any particular state. See ISI Int'l, Inc. v. Borden Ladner Gervais LLP, 256 F.3d 548, 551 (7th Cir. 2001).

If the defendant is exposed to the jurisdiction of the United States, as Ms. Polto and Polto, Inc. clearly are in this case, the question becomes whether the federal court has been authorized to exert the full power of the nation. ISI Int'l, Inc, 256 F.3d at 552. To answer this question, the court looks to the applicable federal statute -- in this case, the Lanham Act. See Omni Capital Int'l, 484 U.S. at 104. The Lanham Act does not permit nationwide service of process. See, e.g., ISI Int'l, Inc., 256 F.3d at 551. When the federal statute at issue does not provide for nationwide service, the statutory basis for jurisdiction generally is provided by Rule 4(k)(1)(A) which ties jurisdiction to the forum state's long-arm statute. See Janmark v. Reidy, 132 F.3d 1200, 1201 (7th Cir. 1997); see also Digisound-WIE, Inc. v. Bestar Techs., Inc., No. 07 C 6535, 2008 WL 2096505 (N.D. Ill. May 16, 2008).

Under Illinois law, a court may exercise personal jurisdiction over a non-resident through operation of the Illinois long-arm statute. See 735 ILCS § 5/2-209. That statute extends personal jurisdiction over claims that arise out of a number of enumerated actions and activities, including transacting any business in Illinois. See 735 ILCS § 5/2-209(a)(1). In addition, personal jurisdiction is proper against any corporation doing business within Illinois. 735 ILCS § 5/2-209(b). Finally, the long-arm statute's "catch-all" ...


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