United States District Court, N.D. Illinois, Eastern Division
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);
seeNorthern 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 ...