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Primack v. Pearl B. Polto

July 8, 2010

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 [42] of Defendant Authors & Artists Publishers of New York, Inc. ("AAPN"). Defendant AAPN seeks dismissal of Plaintiff Merrill Primack's complaint for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). For the reasons stated below, the Court grants the motion [42] and dismisses AAPN for lack of personal jurisdiction. Having dismissed all Defendants for lack of personal jurisdiction, this case is dismissed.

I. Background

A. Procedural History

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" 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, which the Court granted on July 8, 2009. Defendant AAPN now moves to dismiss for lack of personal jurisdiction for the same reasons offered by the Polto Defendants.

B. Factual History

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, and Ms. Polto resides in Philadelphia, Pennsylvania. Ms. Polto has authored several books on consumer-credit counseling including the book, Credit Lifeline. Credit Lifeline was published by Defendant AAPN in 2002. Id. at ¶¶ 4-5. AAPN assists authors with editing, preparing, designing, and printing their manuscripts for the purpose of publishing. AAPN has its principal place of business in Dryden, New York, and is incorporated in New York. FAC ¶ 6. In addition to publishing Credit Lifeline,AAPN operated a website to advertise and sell Ms. Polto's book Credit Lifeline. Id. at ¶ 6. Between 2005 and October 2008, AAPN sold approximately thirty copies of Credit Lifeline. Id. at ¶ 7. Once AAPN received notice of the present dispute, AAPN ceased operating the website www.pearlpolto.com and no longer operates a website on behalf of the Polto Defendants.

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 AAPN clearly is 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 ...


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