United States District Court, N.D. Illinois, Eastern Division
April 30, 2015
United Airlines, Inc., Plaintiff,
Aktarer Zaman, individually and d/b/a Skiplagged.com, Defendant
United Airlines, Inc., a Delaware corporation, Plaintiff:
Frank T. Blechschmidt, Matthew J Caccamo, John Sheldon
Letchinger, Baker & Hostetler LLP, Chicago, IL.
Aktarer Zaman, individually, doing business as
skipplagged.com, Defendant: Fitzgerald Timothy Bramwell, The
Law Offices of Fitzgerald Bramwill, Chicago, IL; Irwin B.
Schwartz, PRO HAC VICE, Bla Schwartz, Westwood, MA; Nicholas
R. Cassie, PRO HAC VICE, Bla Schwartz, Pc, Westwood, MA.
OPINION AND ORDER
Robert Blakey, United States District Judge.
order to exercise personal jurisdiction over a defendant,
this Court must determine whether the defendant has a "
substantial connection" with Illinois, that is, whether
the defendant's contacts connect him to Illinois in a
" meaningful way." See Walden v.
Fiore, __ U.S. __, 134 S.Ct. 1115, 1121, 1125, 188
L.Ed.2d 12 (2014). Based on controlling case law, such
contacts must satisfy at least three requirements: (1) the
contacts are created by the defendant himself; (2) the
contacts are targeted at the forum state (as opposed to
merely persons who reside there); and (3) the contacts bear
on the substantive legal dispute. In this case, the record
only shows a limited course of dealing between the parties
and the Defendant's Illinois contacts were with a
third-party. Such contacts, even where relevant, are not
meaningful enough to warrant exercising personal jurisdiction
over the Defendant.
explained below, this a trademark infringement action brought
by Plaintiff United Airlines against Defendant Aktarer Zaman,
who operates the website Skiplagged.com. Skiplagged.com
aggregates flight information from airlines and booking
websites, and links to those websites so that users can
purchase tickets. Unlike other booking websites,
Skiplagged.com also enables consumers to engage in a practice
known as " hidden city" ticketing. That is where a
passenger purchases a ticket on a flight where their
destination is a layover stop. Rather than buying a direct
ticket from Chicago to Denver, for example, it may be cheaper
to buy a ticket from Chicago to San Jose with a layover in
Denver and then skip the second leg of the flight (from
Denver to San Jose). Based on Defendant's operation of
Skiplagged.com, Plaintiff brings three claims: (1) violation
of the Lanham Act; (2) tortious interference with contract;
and (3) misappropriation.
a New York resident, has moved to dismiss  for lack of
personal jurisdiction pursuant to Federal Rule of Civil
Court grants the motion.
motion to dismiss for lack of personal jurisdiction under
Rule 12(b)(2) tests whether a federal court has personal
jurisdiction over a defendant. When deciding a Rule 12(b)(2)
motion without an evidentiary hearing, as here, Plaintiff
must make a prima facie case of personal
jurisdiction. uBID, Inc. v. GoDaddy Group, Inc., 623
F.3d 421, 423-24 (7th Cir. 2010); GCIU-Employer
Retirement Fund v. Goldfarb Corp., 565 F.3d 1018, 1023
(7th Cir. 2009).
bears the burden of establishing that personal jurisdiction
exists. Advanced Tactical Ordnance Systems, LLC v. Real
Action Paintball, Inc., 751 F.3d 796, 799 (7th Cir.
2014); uBID, 623 F.3d at 423-24; Goldfarb,
565 F.3d at 1023. To determine whether Plaintiff has met its
burden, this Court may consider affidavits from both parties.
Felland v. Clifton, 682 F.3d 665, 672 (7th Cir.
2012). When Defendant challenges by declaration a fact
alleged in the Complaint, Plaintiff has an obligation to go
beyond the pleadings and submit affirmative evidence
supporting the exercise of jurisdiction. Purdue Research
Foundation v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 783
(7th Cir. 2003). Courts must also resolve all factual
disputes in Plaintiff's favor. Northern Grain
Marketing, LLC v. Greving, 743 F.3d 487, 491 (7th Cir.
2014); Goldfarb, 565 F.3d at 1020 n.1. Unrefuted
facts in Defendant's affidavits, however, will be taken
as true. Goldfarb, 565 F.3d at 1020 n.1. While in
this context affidavits trump the pleadings, in the end, all
facts disputed in the affidavits will be resolved in
Plaintiff's favor. Purdue Research Foundation,
338 F.3d at 782.
a New York resident, is the founder and CEO of
Skiplagged.com. Complaint ¶ 11; Zaman Affidavit ¶
2. Skiplagged.com aggregates flight information from airlines
and booking websites, such as United.com and Orbitz.com, and
links to those websites so that users can purchase tickets.
Complaint ¶ ¶ 3, 30, 33, 39, 45. The website, in
particular, enables consumers to engage in " hidden
city" ticketing, Complaint ¶ ¶ 3, 30, which is
where a passenger purchases a ticket on a flight where their
destination is a layover stop, Complaint ¶ ¶ 3-4;
Zaman Affidavit ¶ 3.
relevant background began December 29, 2013, when Defendant
entered into an Affiliate Agreement with Orbitz, LLC (a
former co-plaintiff in this action). Complaint ¶ ¶
6, 15, 22. Defendant, among other things, agreed not to link
to Orbitz.com for illegitimate reservations and bookings or
to disguise the origin of information transmitted through
Orbitz.com. Complaint ¶ 23. Under the "
Miscellaneous" provision of the Affiliate Agreement,
Defendant consented to jurisdiction of the state and federal
courts located in Cook County, Illinois for " any
dispute involving this Agreement." Complaint ¶ 15;
Affiliate Agreement, attached as Exhibit A to Complaint. In
the same provision, Defendant also agreed that the Affiliate
Agreement would be governed by Illinois law. Complaint ¶
15. The Agreement was terminated on September 3, 2014.
Complaint ¶ 22.
August 2014, Plaintiff, a Delaware corporation with its
principal place of business in Illinois, learned that
Defendant had been promoting hidden city ticketing since at
least early 2014. Complaint ¶ ¶ 3-6, 8, 30, 39;
Radcliffe Declaration ¶ 1. Plaintiff also learned that
Skiplagged.com redirected consumers to United.com to make
hidden city and other bookings on United flights. Radcliffe
Declaration ¶ 30. Plaintiff later discovered that
Defendant also redirected consumers to other booking websites
in the same way. Complaint ¶ ¶ 30, 39.
September 5, 2014, Plaintiff, through its Managing Counsel,
Mike Henning, sent a cease and desist letter to Defendant.
Complaint ¶ 53. Mr. Henning demanded that Defendant
refrain from offering hidden city ticketing of United flights
because it was prohibited by Section 6(J) of Plaintiff's
Contract of Carriage with its customers. Complaint ¶ 53;
Radcliffe Declaration ¶ 4. The cover email to the letter
and the subsequent email chain, but not the letter itself, is
part of the record. See generally Email Chain
[34-2]. Mr. Henning's email signature block identifies
his office address as Houston, Texas. Email Chain [34-2] at
same day, Defendant responded to Mr. Henning, outlining his
disagreements with the letter and also proposing a
partnership between the parties:
... Skiplagged has been partnering directly with airlines and
has several partners already. Skiplagged is allowing airlines
to make the best of the inevitable: more informed consumers.
United is not yet a partner and we believe it would be wise
to change that. As such, we will greatly appreciate it if you
connect us with the appropriate people.
Email Chain [34-2] at 3-6; see also Complaint ¶
¶ 48, 54.
days later, on September 8, Mr. Henning left Defendant a
voicemail to discuss the cease and desist letter; and, in an
email, asked Defendant to return his call. Email Chain [34-2]
at 3. The call took place on September 9 among Mr. Henning,
Defendant and Tye Radcliffe, Plaintiff's Illinois-based
Director of Marketing Distribution Strategy. Complaint ¶
55; Radcliffe Declaration ¶ 4. It appears from the email
correspondence that Mr. Henning initiated the call. Email
Chain [34-2] at 2. The record does not show why Mr. Radcliffe
participated in the call. During the call, Defendant, without
being prompted by Mr. Henning or Mr. Radcliffe, proposed that
Plaintiff become one of its partners. Radcliffe Declaration
¶ 4. Mr. Radcliffe declined the offer. Radcliffe
Declaration ¶ 4. Also during the call, Defendant agreed
to remove all United references, logos and flight and fare
information from Skiplagged.com. Complaint ¶ 55;
Radcliffe Declaration ¶ 4.
broke his promise. On September 13, 2014, Plaintiff
discovered that Defendant was still promoting hidden city
flights on United under a " censored" airline name
and logo. Complaint ¶ 56; Radcliffe Declaration ¶
5. The censored logo included an explanatory icon that read:
" Sorry for the inconvenience, but United Airlines says
we can't show you this information." Complaint
September 15, 2014, Defendant again promised to remove United
content from Skiplagged.com. Complaint ¶ 57; Email Chain
[34-2] at 2. That promise too was broken. Defendant continued
to present United flight offerings on Skiplagged.com with
similar messages referring to Plaintiff. Complaint ¶ 58;
Radcliffe Declaration ¶ 6. This lawsuit ensued on
November 17, 2014.
subject matter jurisdiction rests on a federal question (the
Lanham Act, here) and supplemental jurisdiction, and no
special federal rule for personal jurisdiction applies, as
here; this Court may exercise personal jurisdiction over
Defendant only if it is (1) proper under the forum
state's personal jurisdiction statute and (2) comports
with the requirements of the Due Process Clause. Advanced
Tactical, 751 F.3d at 800 (setting forth the personal
jurisdiction standard for Lanham Act and state law claims);
see also uBID, 623 F.3d at 425;
Northern Grain, 743 F.3d at 491-92; Tamburo v.
Dworkin, 601 F.3d 693, 700 (7th Cir. 2010).
Illinois long-arm statute permits this Court to exercise
personal jurisdiction " on any ... basis now or
hereafter permitted by the Illinois Constitution and the
Constitution of the United States." 735 ILCS 5/2-209(c);
see Northern Grain, 743 F.3d at 491-92.
Because the Seventh Circuit has found no " operative
difference" between the two constitutional limits, this
Court will limit its analysis to whether exercising
jurisdiction over Defendant comports with the Due Process
Clause. Illinois v. Hemi Group LLC, 622 F.3d 754,
756-57 (7th Cir. 2010).
jurisdiction may be either general or specific. Advanced
Tactical, 751 F.3d at 800. Plaintiff proceeds only on
the basis that this Court has specific personal jurisdiction
over Defendant. In determining whether this Court may
exercise specific personal jurisdiction over a foreign
defendant, the key issues are: (1) whether Defendant has
sufficient " minimum contacts" with the forum state
(2) such that " the maintenance of the suit does not
offend traditional notions of fair play and substantial
justice." Tamburo, 601 F.3d at 701 (internal
quotations omitted); see also uBID, 623
F.3d at 425. This Court addresses each issue in turn.
minimum contacts, this Court must determine whether Defendant
has a " substantial connection" with Illinois, or,
put another way, determine whether Defendant's contacts
connect him to Illinois in a " meaningful way."
See Walden v. Fiore, __ U.S. __, 134 S.Ct.
1115, 1121, 1125, 188 L.Ed.2d 12 (2014). While Courts in this
Circuit have varied the structure of their minimum contacts
analysis, Supreme Court and Seventh Circuit case law instruct
that, at its core, this analysis turns on the (1) relevance
of Defendant's contacts with the forum state and (2) how
meaningful those contacts are. See, e.g.,
Walden, 134 S.Ct. at 1122-23; Advanced
Tactical, 751 F.3d at 801-03; Northern Grain,
743 F.3d at 489, 494-96; Hemi Group, 622 F.3d at
757-59; uBID, 623 F.3d at 426-32. These two factors,
while conceptually different, many times are considered
together. E.g., Advanced Tactical, 751 F.3d
at 801-03; Northern Grain, 743 F.3d at 495-96.
relevance analysis has been an area of recent clarification
by both courts, see Walden, 134 S.Ct. 1115,
188 L.Ed.2d 12; Advanced Tactical, 751 F.3d 796, so
this Court begins by reviewing these controlling cases before
analyzing Defendant's particular contacts with Illinois.
Based on its review of controlling case law, this Court finds
that Defendant's contacts must satisfy at least three
requirements to be relevant: (1) the contacts are created by
the defendant himself; (2) the contacts are targeted at the
forum state (as opposed to persons who reside there); and (3)
the contacts bear on the substantive legal dispute.
See Walden, 134 S.Ct. at 1122-23;
Advanced Tactical, 751 F.3d at 801-03; see
also Goldfarb, 565 F.3d at 1024; RAR, Inc.
v. Turner Diesel, Ltd., 107 F.3d 1272, 1277-78 (7th Cir.
Supreme Court in Walden addressed the relevance of
an injury occurring in the forum state to the personal
jurisdiction analysis. The defendant-petitioner, a police
officer, seized almost $97,000 from the
plaintiffs-respondents at an airport in Georgia; and he later
submitted an allegedly false probable cause affidavit to the
United States Attorney's Office in Georgia to assist in
bringing a federal action for forfeiture of this money. 134
S.Ct. at 1119-20. The respondents had come to Georgia from
Puerto Rico and were en route to Nevada, where they had a
residence. Id. at 1119. The respondents claimed the
$97,000 was their gambling bank and winnings, and not from
respondents brought Fourth Amendment claims against the
petitioner in Nevada federal court. Id. at 1120. The
district court granted the petitioner's motion to dismiss
for lack of personal jurisdiction, and the Ninth Circuit
reversed. Id. at 1120-21. The Supreme Court agreed
with the district court. Id. at 1121.
Supreme Court found that the Ninth Circuit had erred by
focusing on petitioner's contacts with the respondents
and not the forum state itself. Id. at 1124-25. None
of the underlying conduct was tethered to Nevada in any
" meaningful way," even though respondents have a
residence in Nevada and the petitioner knew that the
respondents were en route to Nevada at the time the money was
seized. Id. The seizure occurred in Georgia and the
allegedly false probable cause affidavit was drafted and sent
in Georgia. Id. at 1124. While Nevada counsel for
the respondents had contacted the petitioner pre-suit to
settle the dispute, that conduct was the kind of unilateral
activity by a third-party that cannot underpin personal
jurisdiction. Id. at 1119, 1125.
reaching this decision, the Supreme Court analyzed its prior
decision in Calder v. Jones, 465 U.S. 783, 104 S.Ct.
1482, 79 L.Ed.2d 804 (1984). Calder was a libel
action brought in California federal court by a California
actress against a Florida-based reporter and editor for the
National Enquirer, a Florida company. As explained by
Walden, the Court in Calder found that
personal jurisdiction was proper in California because
California was the " focal point" both of the story
and the harm suffered. 134 S.Ct. at 1123. In seemingly broad
language, the Supreme Court in Calder explained that
jurisdiction was " proper in California based on the
'effects' of [defendants'] Florida conduct in
California." Walden, 134 S.Ct. at 1123 (quoting
Walden, 134 S.Ct. at 1123-24, the Supreme Court
recast its decision in Calder. Calder did not hold
that mere injury to a forum resident is a sufficient contact
with the forum. Id. at 1125. Rather, the Court in
Walden explained that the strength of the forum
connection in Calder was " largely a function
of the nature of the libel tort." Id. at 1124.
No matter how libelous the National Enquirer article was,
there could be no injury absent publication to third-persons.
Id. Publication is a necessary element of libel, so,
according to Walden, the National Enquirer's
reporter and editors' intentional tort " actually
occurred in California." Id. (emphasis
in original). That was not the case in Walden, which
did not involve a libel claim.
months after Walden, the Seventh Circuit decided
Advanced Tactical. Advanced Tactical was a trademark
infringement action that also involved claims for violation
of the Lanham Act (Count IV, here) and misappropriation
(Count VI, here). 751 F.3d at 798-99.
Indiana-based plaintiff, Advanced Tactical, manufactured and
sold a more lethal version of a paintball (a ball filled with
a pepper-spray-like irritant) under the brand name
PepperBall. Id. at 798. Advanced Tactical acquired
the trademarks to that name from another company (PepperBall
Technologies) that was going through foreclosure.
Id. Around that time, APON, a Mexican company that
had supplied irritant projectiles to PepperBall Technologies,
entered into negotiations to sell projectiles to defendants
Real Action, a California company, and its president.
Id. at 798-99. APON and Real Action reached a deal
in August 2012, at which time Real Action posted on its
website, and circulated through its email list, an
announcement that it had acquired the " machinery,
recipes, and materials once used by PepperBall Technologies
Inc." Id. at 799. That statement falsely
implied, according to Advanced Tactical, that Real Action was
the only maker of PepperBall irritant projectiles since
PepperBall Technologies' foreclosure. Id.
Tactical sued Real Action and its president in Indiana
federal court. Id. at 798-99. The district court
held an evidentiary hearing and concluded that there was
personal jurisdiction over the defendants. Id. at
799. The district court applied Indiana law, which, like
Illinois, has a long-arm statute that extends personal
jurisdiction to the full extent permitted by the
Constitution. Id. at 799-800. The Seventh Circuit
reversed the district court. Id. at 798.
Seventh Circuit began with a bedrock principle: " The
relevant contacts are those that center on the relations
among the defendant, the forum, and the litigation."
Id. at 801. Thus, only suit-related contacts and
not, for example, defendant's contacts with the plaintiff
or third-parties, can create the required connection with the
forum state. Id. Based on this principle, the
Seventh Circuit concluded that the district court had
improperly considered multiple contacts as relevant in its
personal jurisdiction analysis. Id.
district court first considered that Real Action had
fulfilled more than 600 orders of projectiles for purchasers
in Indiana after putting the allegedly infringing message on
its website and in emails. Id. at 801. But the
record did not show that those orders had any connection with
the litigation. Id. There was no evidence that any
Indiana purchaser actually saw the message or knew that
Advanced Tactical was selling PepperBalls. Id. Even
if there was a connection, the Seventh Circuit expressed
concern that a judicial finding that a few shipment sales in
a state can satisfy personal jurisdiction would create de
facto universal jurisdiction. Id. at 801-02.
the district court considered that Real Action knew that
Advanced Tactical was an Indiana company and could foresee
injury to Advanced Tactical in Indiana. Id. at 802.
The Seventh Circuit found that is no longer a valid
consideration after Walden. Advanced
Tactical, 751 F.3d at 802. As the Court explained,
Walden changed existing law in this Circuit (and
elsewhere) by holding that the relevant contacts are those
that the defendant itself creates. Id. The geography
of Advanced Tactical's injury, therefore, was a matter of
happenstance from Real Action's point-of-view and not
driven by the company's purposeful conduct. Id.
the district court improperly credited Real Action's
online activities: (1) sending an email to a list of
subscribers that included Indiana residents and (2)
maintaining an interactive website. Id. at 802-03.
The Seventh Circuit characterized the residence of
subscribers as " entirely fortuitous, depending wholly
on activities out of the defendant's control."
Id. at 803. The operation of an interactive webpage
accessible nationwide likewise did not create adequate
in-state contacts. Id. As such, Real Action's
online activities, without more, were not sufficient to
establish relevant contacts. Id. at 802-03. The
Seventh Circuit did caution, however, that such contacts can
give rise to personal jurisdiction if targeted at residents
of a specific state, such as through
geographically-restricted online ads. Id. at 803.
there is no dispute that Defendant does not reside in
Illinois, has not traveled to Illinois in connection with
Skiplagged.com, and does not bank in Illinois. Zaman
Affidavit ¶ 4; see  at 11-12. Instead,
Plaintiff argues that Defendant purposefully reached out to
Illinois in three ways.  at 8-11. This Court addresses
each argument in turn.
Forum State Injury
argues that Defendant harmed an Illinois-based Plaintiff and
knew that the injury would be felt in Illinois.  at 8-9.
After Walden and Advanced Tactical, the
mere geography of Plaintiff's injury and Plaintiff's
location, without more, can no longer serve as the relevant
contacts supporting personal jurisdiction. See also
Picot v. Weston, 780 F.3d 1206, 2015 WL 1259528, at
*6 (9th Cir. 2015) (analyzing Walden );
Fastpath, Inc. v. Arbela Technologies Corp., 760
F.3d 816, 823 (8th Cir. 2014) (same); Rockwood Select
Asset Fund XI (6)-1, LLC v. Devine, Millimet &
Branch, 750 F.3d 1178, 1180 (10th Cir. 2014) (same).
These cases instruct that the proper inquiry considers
Defendant's ties with the forum--not Defendant's ties
with Plaintiff or Plaintiff's ties with the forum.
points to the Seventh Circuit's decision in
Tamburo.  at 8-9. That case is distinguishable
after Walden. The plaintiff in Tamburo, an
Illinois resident, brought several tort claims, including one
for trade libel, in this District against several residents
of foreign states and countries. 601 F.3d at 697-99. The
plaintiff had developed a dog-pedigree software program that
incorporated information from public websites, some of which
the defendants owned. Id. at 697-98. In retaliation,
the defendants posted comments on their websites and on
message boards accusing the plaintiff of stealing their data.
Id. Some comments identified the plaintiff's
Illinois address and urged readers to harass him.
Seventh Circuit, contrary to the district court, found there
was personal jurisdiction over all defendants but one.
Id. at 697-99, 708. The Seventh Circuit based its
decision on the Supreme Court's decision in
Calder and its progeny. See id. at
702-08. It began by observing that Calder gave
" significant weight" to the " effects"
of a foreign defendant's conduct within the forum state,
id. at 702, and then analyzed the conflicting case
law in this Circuit about the scope of Calder,
id. at 703-08. The Seventh Circuit concluded that
exercising jurisdiction is proper where there is a forum
state injury and tortious conduct specifically directed at
the forum. Id. at 706.
applied to the facts before it, the Seventh Circuit concluded
that the defendants had made an electronic entry into
Illinois in two ways. The defendants: (1) defamed an Illinois
resident in comments that included his Illinois address; and
(2) exhorted readers to boycott his products. Id. at
706-08. The exception to the Seventh Circuit's exercise
of personal jurisdiction was an Australian company who
reposted some of the allegedly defamatory messages, but the
record did not show that the company knew the plaintiff
resided in Illinois. Id. at 708.
scope of Tamburo 's finding of personal
jurisdiction must be understood in light of the Supreme
Court's recent analysis of Calder in Walden.
Calder, like Tamburo, involved a libel claim,
so the reputation-based injuries at issue in those two cases
actually occurred in the forum states where the
defamatory materials were published. See
Walden, 134 S.Ct. at 1124; see Hemi
Group, 622 F.3d at 758-59 (characterizing
Tamburo as a " defamation" case).
is no libel claim here, however, and this Court cannot find
jurisdiction based on a claim not pled in the complaint.
See Picot, 780 F.3d 1206, 2015 WL 1259528,
at *7 n.3. Plaintiff brings two intentional tort claims:
tortious interference with contract (Count V) and
misappropriation (Count VI). Neither of these claims requires
publication in the way a libel claim does. See
Burrell v. City of Mattoon, 378 F.3d 642, 651-52
(7th Cir. 2004) (stating elements for tortious interference
with contract under Illinois law); Learning Curve Toys,
Inc. v. PlayWood Toys, Inc., 342 F.3d 714, 721 (7th Cir.
2003) (stating elements for misappropriation under Illinois
law). Nor has Plaintiff suggested otherwise.
the absence of a libel claim, Plaintiff argues that Defendant
circulated tortious statements about it over the Internet.
See  at 9. Even if relevant, this contact is not
sufficiently meaningful to create personal jurisdiction.
Unlike Tamburo where the tortious statements gave an
Illinois address and asked readers to harass the plaintiff
there, the statement here is geographically neutral.
Defendant stated: " Sorry for the inconvenience, but
United Airlines says we can't show you this
information." Complaint ¶ 56. There is no mention
that Plaintiff is an Illinois company. Nor is this the
hypothetical case envisioned by Advanced Tactical,
751 F.3d at 803, where Defendant has engaged in
geographically-targeted online activity. Plaintiff has not
suggested that Illinois consumers saw a different message
when they visited Skiplagged.com than consumers in the other
light of the underlying claims, this case is closer to the
Seventh Circuit's decision in Advanced Tactical,
which found personal jurisdiction wanting in a trademark
action that included a misappropriation claim. Likewise, the
Court in Walden found personal jurisdiction lacking
where the allegedly false statement was not tethered to the
forum state. 134 S.Ct. at 1119-20, 1124. Personal
jurisdiction is lacking here.
next argues that another case-related contact is the
Affiliate Agreement between Defendant and Orbitz.  at 10.
The Agreement, as Plaintiff emphasizes, contained an Illinois
forum selection clause. Id.
flaw in this argument though is that the Affiliate Agreement
does not bear on the substantive legal dispute here, so its
forum selection clause is not a contact with Illinois
relevant to this Court's personal jurisdiction analysis.
See Goldfarb, 565 F.3d at 1024;
RAR, 107 F.3d at 1277-79. The cause of action must
" directly arise" out of the specific contacts
between the defendant and the forum state. RAR, 107
F.3d at 1278. Here, the substantive legal dispute does not
directly arise from the Affiliate Agreement:
o The subject matter of the Affiliate Agreement is not
closely related to this dispute. The Agreement is in the
nature of a form contract that Orbitz required for
participation in its affiliate program. See
Complaint ¶ 15; Affiliate Agreement, attached as Exhibit
A to Complaint. The record does not show that the Agreement
was designed to prevent Defendant from promoting hidden city
flights, although that may have been an incidental effect of
the Agreement, or that the Agreement could prevent Defendant
from misappropriating Plaintiff's trademarks and other
o Plaintiff lacks rights under the Affiliate Agreement.
Plaintiff is not a party to the Affiliate Agreement, nor is
Plaintiff a third-party beneficiary.
o None of Plaintiff's claims (Counts IV to VI) is
relevant to the Affiliate Agreement. Orbitz settled its
claims with Defendant ( see ), so Orbitz's
counts (Counts I to III) are no longer at issue. Count III
was the only one based on Defendant's breach of the
Agreement. Indeed, Plaintiff's claims exist apart from
the Affiliate Agreement. The Agreement by its terms
restricted Defendant's rights to use Orbitz.com--not
United.com. Defendant thus could have complied with the
Affiliate Agreement yet still have engaged in the purported
wrongful conduct at issue in this litigation.
o The Affiliate Agreement is temporally removed from the
facts here. For example, the record does not show that
Defendant was infringing on Plaintiff's rights in
December 2013, when Defendant signed the Affiliate Agreement.
these respects, this case is analogous to uBID.
Although the Seventh Circuit in uBID ultimately
exercised personal jurisdiction, the Court observed that
forum selection clauses in contracts GoDaddy, an Arizona
company that runs GoDaddy.com, entered into with third-party
customers had " nothing to do" with the instant
cybersquatting dispute brought by a non-customer. 623 F.3d at
these reasons, exercising personal jurisdiction over
Defendant is not warranted in this case just because it may
be warranted in other cases involving Defendant, such as a
dispute between Defendant and Orbitz over the Affiliate
Agreement. The doctrine of personal jurisdiction is case
Communications between Parties
last argues that Defendant's communications with it,
including partnership proposals, establish personal
jurisdiction.  at 10.
September 5, 2014, Plaintiff, through Mr. Henning, its
Texas-based in-house counsel, sent Defendant a cease and
desist letter by email. Defendant responded to the letter
that same day, proposing a potential partnership between the
parties. Defendant asked Henning to " connect us with
appropriate people." On September 8, Henning left
Defendant a voicemail about the cease and desist letter and
asked Defendant to return his call. Counsel and Defendant,
along with Mr. Radcliffe, Plaintiff's Illinois-based
director of marketing, spoke on September 9. On the call,
Defendant pitched its business deal, which Plaintiff
and calls directed at the forum state can be meaningful
enough to create personal jurisdiction, see
Walden, 134 S.Ct. at 1122; however, the contacts
here are not. Defendant principally communicated with Mr.
Henning, whose signature block showed that he worked in
Texas--not Illinois. The only connection with an Illinois
employee occurred during the September 9, 2014 call which
included Mr. Radcliffe. But the record does not show why Mr.
Radcliffe joined the call; if Defendant knew Mr. Radcliffe
would be joining the call; if Defendant knew Mr. Radcliffe
was based in Illinois; or if Mr. Radcliffe participated in
the call while physically in Illinois.
on this record, the Court's decision in Fletcher v.
Doig, No. 13 C 3270, 2014 WL 4920238 (N.D. Ill. Sept.
30, 2014), which Plaintiff cites ( see  at 9),
confirms that personal jurisdiction is lacking here. The
Court in Fletcher found " ample evidence"
that the defendant had directed his conduct at Illinois
because the email and letter communications between the
parties included Illinois addresses, such as on the email
signature block. 2014 WL 4920238, at *7. That is not true of
the facts here.
these communications were sufficiently targeted to Illinois,
they are too sparse to create personal jurisdiction as they
comprise a single email chain and a single phone call over
the course of two weeks. Analogously, the Seventh Circuit in
Advanced Tactical, 751 F.3d at 801-02, found that a
few intentional sales to the forum state did not create
personal jurisdiction. See also Picot, 780
F.3d 1206, 2015 WL 1259528, at *5 (two trips to forum state
inadequate); Fastpath, 760 F.3d at 822-24 (two calls
and emails to forum state inadequate). By comparison,
Plaintiff cites Elorac, Inc. v. Sanofi-Aventis Canada
Inc., No.14 C 1859, 2014 WL 7261279, at *6-8 (N.D.
Ill.Dec. 19, 2014), but the Court exercised personal
jurisdiction there because, among other things, the parties
had exchanged " hundreds of emails, letters and phone
calls" and also had face-to-face meetings in Illinois.
 at 10.
communications initiated by Plaintiff, such as
Defendant's response to Plaintiff's cease and desist
letter, are not relevant and thus cannot support a finding of
personal jurisdiction. Walden, 134 S.Ct. at 1124.
Defendant may have gone beyond just responding to the letter
by proposing a partnership with Plaintiff in the September 5
email and September 9 call. Yet Defendant's limited and
ultimately unsuccessful partnership overtures do not create
the required " substantial" or "
meaningful" connection with Illinois for this Court to
exercise personal jurisdiction. Id. at 1121, 1125.
In Northern Grain, for example, the Seventh Circuit
found personal jurisdiction lacking under more compelling
circumstances than here. 743 F.3d at 495-96. Although the
parties in Northern Grain had entered into multiple
contracts, the Court discredited the negotiations leading up
to those contracts as creating personal jurisdiction because
they occurred telephonically and there were no in-person
meetings in the forum (Illinois). Id. at 495. That
is the case here too.
instructive is the Eighth Circuit's post- Walden
decision in Fastpath. In that case, the Iowa-based
plaintiff brought a breach of contract action in Iowa federal
court against a California-based defendant for purportedly
breaching a covenant not to compete. 760 F.3d at 819. The
parties executed the covenant as part of a broader agreement
to exchange confidential information for the purpose of
evaluating a potential joint venture or other partnership.
Id. Despite having a contractual relationship,
unlike here, the Eighth Circuit found personal jurisdiction
lacking in Iowa based on Walden. Contact with the
plaintiff cannot be the only link between the defendant and
the forum. Id. at 818-20. It was not enough that the
defendant had aggressively pursued the relationship,
including through two telephones calls to Iowa and emails.
Id. at 822-24. Those contacts were incidental to the
principal contract negotiations which occurred elsewhere.
Id. at 823.
cites Hemi Group, 622 F.3d at 758, to argue that
exercising personal jurisdiction is appropriate where, as
here, Defendant is prepared to do business in Illinois. 
at 10. That case is distinguishable. Central to the Seventh
Court's decision in Hemi Group was the New
Mexico-based cigarette retailer's specific election to
sell cigarettes to consumers in all states but New York (due
to legal concerns of doing business there). See 622
F.3d at 757-59. That revealed an intentional decision to
conduct business in the other 49 states, thereby subjecting
the retailer to personal jurisdiction in Illinois.
nothing in the record even hints that Skiplagged.com is less
accessible or otherwise varies, depending upon from where in
the United States (or anywhere else in the world) a user
accesses the website. Therefore, the operative facts from
Hemi Group are not present here. Also unlike the
retailer in Hemi Group, Defendant does not ship any
tangible products to residents in Illinois; rather, the
company facilitates electronic ticket purchases.
Plaintiff has not met its burden and shown that Defendant has
had relevant, meaningful contacts with Illinois. At best,
Plaintiff has shown: (1) a limited course of dealing between
the parties and (2) that Defendant had contacts with a
third-party in Illinois. Those two contacts, even if
relevant, are not meaningful enough to warrant exercising
personal jurisdiction over Defendant.
Fair Play and Substantial Justice
determined that there are not sufficient minimum contacts to
warrant exercising personal jurisdiction here, this Court
need not and does not consider whether jurisdiction in
Illinois would violate fair play and substantial justice.
See Northern Grain, 743 F.3d at 492-93.
had argued, in the alternative, that Defendant waived
personal jurisdiction by agreeing to an Illinois forum
selection clause in the Affiliate Agreement. Personal
jurisdiction can be waived by the parties. Insurance
Corp. of Ireland, Ltd. v. Compagnie des Bauxites de
Guinee, 456 U.S. 694, 703, 102 S.Ct. 2099, 72 L.Ed.2d
492 (1982); RAR, 107 F.3d at 1280.
discussed above, however, the Plaintiff is not a signatory to
the Affiliate Agreement and has no standing to enforce the
Agreement's forum selection clause (assuming the clause
in fact applies here). To be sure, non-signatories sometimes
can enforce forum selection clauses, but there must be an
" affiliation" or " mutuality" with a
contracting party, which would be with Orbitz or Defendant
here. Adams v. Raintree Vacation Exchange, LLC, 702
F.3d 436, 439 (7th Cir. 2012); see also American
Patriot Insurance Agency, Inc. v. Mutual Risk Management,
Ltd., 364 F.3d 884, 888-89 (7th Cir. 2004).
means that the non-signatory shares a corporate relationship
with a signatory, such as two corporate affiliates or, as was
the case in Adams, 702 F.3d at 439, a parent and its
subsidiary. Mutuality is the principle that if a signatory
can enforce the forum selection clause against a
non-signatory, then the non-signatory should be allowed to do
the same. Adams, 702 F.3d at 441. There was
mutuality in Adams because the plaintiffs, who were
signatories, alleged that Starwood Vacation Ownership ("
Starwood" ), a defendant who was a non-signatory, was
engaged in a conspiracy to defraud with the parent company of
another signatory. Id. at 442. The Seventh Circuit
explained that the plaintiffs were allowed to enforce the
clause against Starwood under the principal-agent theory that
contracts can be enforced against secret principals,
i.e., Starwood. Id. at 442-43.
instructive case is American Patriot. The Seventh
Circuit permitted non-signatory defendants to enforce a forum
selection clause against a signatory plaintiff for two
reasons: (1) the non-signatory defendants were corporate
affiliates with the other signatory; and (2) they signed
other contracts with the plaintiff, which, together with the
contract containing the forum selection clause, formed a
cohesive contractual scheme. 364 F.3d at 888-89.
the record contains no evidence of affiliation or mutuality.
There is no evidence that: (1) Plaintiff is affiliated with
Orbitz or the Defendant; (2) Defendant could have enforced
the Affiliate Agreement's forum selection clause against
Plaintiff; or (3) Plaintiff has entered into contracts with
Plaintiff that form a cohesive contractual scheme along with
the Affiliate Agreement. In fact, Plaintiff has not even
argued that it has standing to invoke the Affiliate
Agreement's forum selection clause. See  at
6-7. For these reasons, Plaintiff's waiver argument
motion to dismiss  is granted and this case is dismissed
for lack of personal jurisdiction. This dismissal does not
preclude Plaintiff from refiling and litigating its claims in
a proper forum. Manex v. Bridgestone Firestone North
American Tire, LLC, 533 F.3d 578, 584 (7th Cir. 2008).
The facts are taken from the Complaint 
and other evidence submitted by the parties, including two
sworn statements: the Affidavit of Aktarer Zaman [25-1] and
the Declaration of Tye Radcliffe [34-1].
Restricting the universe of relevant
contacts also comports with the policy underlying the
personal jurisdiction requirement: protecting the liberty of
non-resident defendants. Walden, 134 S.Ct. at
1122-23. Otherwise, they risk being hailed into foreign
states based on " random, fortuitous or attenuated
contacts." Walden, 134 S.Ct. at 1123;
accord uBID, 623 F.3d at 426. As the
Seventh Circuit has found, " potential defendants should
have some control over--and certainly should not be surprised
by--the jurisdictional consequences of their actions."
Tamburo, 601 F.3d at 701 (internal quotations and
brackets omitted); see also Northern Grain,
743 F.3d at 492-93; Hemi Group, 622 F.3d at