PFIP, LLC v. Planet Fitness Enter. CV-04-250-JD 11/10/04 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

PFIP, LLC

v. Civil No. 04-250-JD Opinion No.

Planet Fitness Enterprises, Inc., et al.

O R D E R

The plaintiff, PFIP, LLC, brings suit against Planet Fitness

Enterprises, Inc., its related corporations, and its president,

Rick Berks, alleging trademark infringement and unfair practices

under the Lanham Act, copyright infringement in violation of the

Copyright Act, common law trademark infringement, breach of

contract, unjust enrichment, and violation of New Hampshire's

Consumer Protection Act. The defendants move to dismiss the

claims for lack of personal jurisdiction and, alternatively, ask

that the case be transferred to the Southern District of Florida.

PFIP opposes the motion to dismiss.

Background

PFIP is a New Hampshire corporation that owns certain

"Planet Fitness" trademarks and copyrights. PFIP is affiliated

with Pla-Fit Franchise, LLC, that markets franchises for "PLANET

FITNESS" exercise centers, including centers in New Hampshire, Maine, and Florida. Planet Fitness Enterprises, Inc., ("PFE")

operates three fitness centers under the name "Planet Fitness,"

in southern Florida. Rick Berks is its president. PFE began

using the name "Planet Fitness" in 1993 under a registered

trademark, and PFIP began using the same name several years

later.

PFIP brought a cancellation proceeding against PFE to stop

its use of the name "Planet Fitness" but dropped the proceeding

when it learned of PFE's prior use of the name. PFIP then began

negotiations with Berks to resolve use of the name. Berks and

Michael Grondahl, the director of PFIP, discussed the matter by

telephone between New Hampshire and Florida. Berks's Florida

attorney reviewed the documents. Their negotiations led to an

agreement that was signed in April of 2002. Under the agreement,

PFIP purchased PFE's registered trademark for "Planet Fitness"

for $75,000 and granted PFE a license to use the trademark within

a specified area of southern Florida.

In May of 2002, Berks and Grondahl met in Florida to discuss

the possibility of PFIP purchasing PFE. Other officers of PFIP

met with Berks in Florida during August of 2002. Further

negotiations took place between PFIP and PFE and through their

respective counsel. The parties never reached a final agreement

on the sale of PFE to PFIP.

2 In early 2004, PFIP sent franchise information to Berks in

Florida, hoping to interest him in becoming a PFIP franchisee.

In response, Berks contacted Grondahl for more information.

Berks also talked with Grondahl about a possible joint purchase

of a health club in Pompano Beach, Florida. PFIP sent Berks more

information and samples of PFIP marketing materials.

In February or March of 2004, Berks called Grondahl to ask

about beginning a marketing program for FPE in Florida. Grondahl

agreed to help Berks set up a corporate membership drive and gave

him contact information for the software vendor in Connecticut

that PFIP used. Grondahl also gave Berks other marketing

information and advice. Berks contends that Grondahl told him

that it did not matter if he used the PFIP logo and material in

the PFE marketing materials. Berks asked to have his clubs

identified on the PFIP web site and then told the web master that

Grondahl had agreed to add the PFE clubs to the PFIP web site.

In April of 2004, Berks contacted Spectrum Monthly &

Printing, Inc., in Manchester, New Hampshire, to inguire about

printing 90,000 pieces for direct mail advertising. Spectrum had

done printing for PFIP for several years, and the co-president of

Spectrum, Richard Pease, recognized the content and layout of

Berks's pieces as being the same as those used by PFIP. Pease

believed that Berks was authorized by PFIP to use that content

3 and layout. Berks sent the advertising materials to

approximately 90,000 addresses in southern Florida. PFIP alleges

that the defendants infringed its copyrights and trademarks by

using PFIP logos and trademarks in the advertising materials.

Berks states in his affidavit that he has never been to New

Hampshire. The defendants represent, through Berks's affidavit,

that all of their records and witnesses are in southern Florida.

PFIP, through Grondahl's affidavit, states that all of its

records and its witnesses are located in New Hampshire.

Standard of Review

The plaintiff bears the burden of establishing personal

jurisdiction. Jet Wine & Spirits v. Bacardi & Co.,

(1st Cir. 2003). When jurisdictional issues are raised in a

motion to dismiss pursuant to Federal Rule of Civil Procedure

12(b)(2), without a hearing, the plaintiff may establish personal

jurisdiction by making a prima facie showing of jurisdiction over

the defendants.1 Daynard v. Ness, Motley, Loadholt, Richardson &

Poole, P .A . ,

(1st Cir. 2002) . The court

" 'accept[s] the plaintiff's (properly documented) evidentiary

1Neither PFIP nor the defendants reguested a hearing, and both have proceeded under the prima facie standard, augmenting their filings with affidavits and other evidence.

4 proffers as true for the purpose of determining the adequacy of

the prima facie jurisdictional showing.'"

(quoting Foster-

Miller v. Babcock & Wilcox Canada,

(1st Cir.

1995)). Those facts are taken as true and in the light most

favorable to jurisdiction, whether or not they are disputed by

the defendants.

The facts proffered by the defendants are

also considered, but only to the extent they are not disputed by

the plaintiff's properly documented facts.2

Discussion

PFIP alleges both federal and state claims and asserts that

subject matter jurisdiction exists pursuant to

and

, along with supplemental jurisdiction

pursuant to

The personal jurisdiction

analysis in federal question cases differs from the analysis in

diversity cases, at least initially, because the constitutional

limits are provided by the Fifth, rather than the Fourteenth,

Amendment. See United States v. Swiss Am. Bank, Ltd.,

(1st Cir. 2001). The Fifth Amendment requires only that

2The court considers the defendants' initial motion and its subsequent motion filed in response to PFIP's amended complaint, and PFIP's objections to both motions.

3PFIP alleges "pendant jurisdiction" which has been replaced by supplemental jurisdiction under § 1367.

5 the defendant have adequate contacts with the United States as a

whole. Id. There is no dispute that the defendants, Florida

corporations and an individual resident of Florida, have

sufficient contacts with the United States to satisfy due

process.

In addition, however, the defendants must be amenable to

service of process, which may be authorized by either the federal

statute providing the cause of action or an applicable civil

rule. Id.; Fed. R. Civ. P. 4 (k). Neither the Lanham Act nor the

Copyright Act provides for nationwide service of process, and

PFIP has not asserted that any federal statute provides for

expanded service. See, e.g., Cambridge Literary Props., Ltd. v.

W. Goebel Porzellanfabrik GmbH,

(1st Cir. 2002);

Fort Knox Music Inc. v. Baptiste,

(2d Cir.

2000); Int'l Truck & Eng. Corp. v. Dow-Hammond Trucks Co.,

(N.D. 111. 2002). In the absence of

statutorily provided service, a federal district court will have

personal jurisdiction over a defendant under Federal Rule of

Civil Procedure 4 (k) "only to the extent permitted by the law of

the state in which the district court sits." United Elec., Radio

& Mach. Workers of Am. v. 163 Pleasant St. Corp.,

,

1086 (1st Cir. 1992) (internal quotation marks omitted). The

New Hampshire long-arm statutes applicable to unregistered

6 foreign corporations and to non-resident individuals. New

Hampshire Revised Statutes Annotated ("RSA") §§ 293-A:15.10 and

510:4, permit courts to exercise personal jurisdiction to the

full extent that due process will allow. Sawtelle v. Farrell,

(1st Cir. 1995). Due process requires that the

defendants have "certain minimum contacts with New Hampshire such

that maintenance of the suit does not offend traditional notions

of fair play and substantial justice." Jet Wine & Spirits,

(internal quotation marks omitted). Personal

jurisdiction may be general or specific, depending on "the

quality and quantity of the potential defendant's contacts with

the forum." Phillips Exeter Acad, v. Howard Phillips Fund, 196

F .3d 284, 288 (1st Cir. 1999).

PFIP argues that the defendants' contacts with New Hampshire

support both general and specific jurisdiction.4 "[A] defendant

who has maintained a continuous and systematic linkage with the

forum state brings himself within the general jurisdiction of

that state's courts in respect to all matters, even those that

41he parties do not distinguish among the defendants for purposes of the jurisdictional analysis. Berks is alleged, without dispute, to be an officer of the four defendant corporations. It appears on the present record that Berks was acting, at all relevant times, on behalf of the defendant corporations, so that Berks's contacts with New Hampshire are the pertinent contacts with the forum for purposes of the jurisdictional analysis.

7 are unrelated to the defendant's contacts with the forum."

(citing Helicopteros Nacionales de Colombia, S.A. v. Hall,

(1984)). In contrast, specific jurisdiction exists

"if [the] case relates sufficiently to, or arises from, a

significant subset of contacts between the defendant and the

forum."

"[D]etermining personal jurisdiction has always

been more an art than a science . . . in which few answers will

be written in black and white. The greys are dominant and even

among them the shades are innumerable." Swiss Am. Bank,

(internal guotation marks and citations omitted).

A. General Jurisdiction

To establish general jurisdiction, PFIP must show that the

defendants had substantial contacts with New Hampshire that were

both continuous and systematic and that the exercise of

jurisdiction would be reasonable. Swiss Am. Bank,

; 4 Charles Alan Wright & Arthur R. Miller, Federal Practice &

Procedure, § 1067.5, at 507 (2002). Reasonableness is assessed

using the five "gestalt" factors that determine the fundamental

fairness of exercising jurisdiction. Swiss Am. Bank,

. The test for general jurisdiction is more stringent than

the test for specific jurisdiction because it applies to all

claims, even those that are unrelated to the defendants' forum contacts. Id.; Phillips, 196 F.3d at 288.

PFIP contends that Berks's telephone calls, faxes, and mail

to PFIP and its attorneys in New Hampshire, along with the

defendants' transaction with Spectrum Monthly & Printing in New

Hampshire, constitute sufficiently continuous and systematic

contacts to satisfy general jurisdiction. Although the parties

dispute who initiated the majority of those contacts, for

purposes of general jurisdiction, that dispute appears to be

immaterial. It is undisputed that the defendants have never

operated a business in New Hampshire, have never advertised or

otherwise solicited business here, and have no representative

here. The defendants' only contacts with New Hampshire are their

interactions with PFIP and Spectrum between 2002 and 2004.

The defendants' communications with PFIP in New Hampshire by

telephone, mail, and fax are contacts for purposes of personal

jurisdiction. Burger King Corp. v. Rudzewicz,

(1985). However, to meet the general jurisdiction standard, PFIP

must show that the defendants were "engaged in longstanding

business in the forum state, such as marketing or shipping

products, or performing services or maintaining one or more

offices there; activities that are less extensive than that will

not gualify." 4 Wright &

§ 1067.5, at 507.

For example, a defendant's contacts that consisted of "sending its chief executive officer to Houston for a contract-

negotiation session; accepting into its New York bank account

checks drawn on a Houston bank; purchasing helicopters,

eguipment, and training services from Bell Helicopter [in Texas]

for substantial sums; and sending personnel to Bell's facilities

in Fort Worth for training" were not enough to establish general

jurisdiction. Helicopteros,

. In another case

involving the sufficiency of contacts with the United States, the

defendant advertised for two years in a magazine in the United

States, subscribed to a credit card company and entered a

licensing agreement with another company in the United States,

participated in litigation in the United States, entered a joint

venture with another bank here, and had other banking

relationships with companies here, but the court found those

contacts were insufficient to establish general jurisdiction.

Swiss Am. Bank,

; see also, e.g.. Cent. Freight

Lines Inc. v. APA Trans. Corp.,

(5th Cir. 2003)

(temporary business location in forum, arranging and receiving

shipments in forum, and developing business and negotiating

contracts in forum not enough where defendant did not actually

operate in forum); Sandstrom v. ChemLawn Corp.,

, 89-

90 (1st Cir. 1990) (securing license and hiring agent in Maine to

do business in the future and recruiting personnel there

10 insufficient to establish general jurisdiction); In re New Motor

Vehicles Canadian Export Antitrust Litq.,

(D. Me. 2004) (using forum-based advertising services,

attending meetings in the forum, and purchasing parts there not

enough).

The defendants' sporadic contacts with New Hampshire by

telephone, fax, and mail over a period of only two years are

insufficient to meet the high standard of general jurisdiction.

When the plaintiff is unable to show sufficient contacts with the

forum, the court need not consider the gestalt factors.

Donatelli v. Nat'l Hockey League,

(1st Cir.

1990). Therefore, PFIP has not shown that general jurisdiction

exists over the defendants.

B. Specific Jurisdiction

The analysis of specific jurisdiction is divided into three

parts: relatedness, purposeful availment, and reasonableness.

Daynard,

. First, each claim must directly relate

to or arise out of the defendants' contacts with the forum state.

Phillips, 196 F.3d at 288. Second, "those contacts [must]

constitute purposeful availment of the benefits and protections

afforded by the forum's laws." Id. Third, the overall

reasonableness of exercising jurisdiction over the defendants

11 considered in light of the "gestalt" factors must favor

exercising jurisdiction. Id. Specific personal jurisdiction is

both defendant-specific and claim-specific, so that jurisdiction

may exist as to some claims and some defendants but not others.5

Id. at 289; see also Remick v. Manfredy,

(3d

Cir. 2001); Hainey v. World Am Communications, Inc.,

(D.R.I. 2003) .

1. Relatedness.

For activity to be significant in the context of specific

jurisdiction, the plaintiff's claim must directly arise from that

activity. Phillips, 196 F.3d at 289. That is, "the defendant's

in-state contact must form an important or at least material

element of proof" for the plaintiff's claim. United Elec.

Workers, 960 F.2d at 1089 (internal guotation marks and brackets

omitted). Because the analysis is claim-specific, claims based

on different theories, such as contract and tort, are analyzed

differently. Mass. Sch. of Law v. Am. Bar Ass'n,

(1st Cir. 1998) .

5In this case, the parties do not differentiate among the defendants. Therefore, the court will not analyze personal jurisdiction separately as to each defendant.

12 __________ a. Infringement and related claims.

In its first and second claims, PFIP alleges that the

defendants infringed its trademarks and falsely designated origin

by using its trademarks in violation of the Lanham Act,

(1) and 1125(a). PFIP's third claim alleges infringement

in violation of PFIP's common law trademark rights and the

Copyright Act,

. In its fourth and seventh

claims, PFIP alleges that the defendants violated the New

Hampshire Consumer Protection Act, RSA 358-A, and are liable for

unjust enrichment.

Infringement and unfair competition claims are analyzed as

tort claims. See Hard Rock Cafe Licensing Corp. v. Concession

Serv., Inc.,

, 1150 (7th Cir. 1992) . Some courts

have applied an "effects test," based on Calder v. Jones,

(1984), to decide personal jurisdiction in infringement

cases, concluding that "the state in which the injury occurs is

the state in which the tort occurs." Indianapolis Colts v.

Metro. Baltimore Football Club,

, 412 (7th Cir. 1994);

see also Lighthouse Carwash Sys., LLC v. Illuminator Bldg. Co.,

, at *3-*4 (S.D. Ind. Aug. 31, 2004); Isbell v. DM

Records, Inc.,

, at *10-*11 (N.D. Tex. June 4,

2004). But see 5 J. Thomas McCarthy, McCarthy on Trademarks &

13 Unfair Competition § 32.38 (4th ed. 2004) (disagreeing with

application of Calder in Indianapolis Colts) .

The First Circuit, however, suggests that the Calder

"effects test" should be limited to the purposeful availment

element of specific jurisdiction. See Swiss Am. Bank,

. Other courts have found that the "effects test"

cannot provide a separate basis for specific jurisdiction in

infringement cases as allowed by the Seventh Circuit. See, e.g.,

LCW Automotive Corp. v. Restivo Enters.,

, at *7

(W.D. Tex. Sept. 24, 2004); Lindgren v. GOT, LLC,

(S.D. Iowa 2004); McCarthy, supra, § 32:38 (stating

"that it is a mis-reading of Calder to find personal jurisdiction

in the trademark owner's home state solely because the trademark

owner feels the effects there" and citing cases). The court

instead should look at the legal theory to determine what conduct

is material to each claim and in the case of tort claims conduct

that is a "but for" cause of the claim is considered. See

Cambridge Literary,

.

PFIP contends that the defendants' use of Spectrum in New

Hampshire to print advertising using PFIP's logos and trademarks

is a "but for" cause of the infringement and unfair competition

claims. Copying is an essential element of a copyright

infringement case. See

; Gamma Audio & Video,

14 Inc. v. Ean-Chea,

(1st Cir. 1993). In

addition there is some indication that the defendants used

Spectrum because it also did printing for PFIP. It appears,

therefore, that the defendants' contact with Spectrum is directly

related to the copyright infringement claims.

PFIP's trademark infringement, unfair competition, and

unjust enrichment theories focus on the defendants' use of its

logos and trademarks, that is the dissemination of the

advertising and other display of the logos and trademarks in

Florida. As alleged, the defendants' order to have the materials

printed in New Hampshire has little or nothing to do with those

claims. Therefore, the defendants' New Hampshire activity does

not appear to be related to those claims.

PFIP argues that "but for" the materials having been

printed, it would not have been injured by the defendants'

actions and that it felt the injury in New Hampshire.

Relatedness, however, is not satisfied by the in-forum effects of

the defendants' extra-forum activities. See Swiss Am. Bank,

. Therefore, the printing contact with New Hampshire

is at best only minimally related to the trademark infringement

claim and related tort claims.

15 _____ b. Breach of contract claim.

The mere existence of a contractual relationship between the

parties is insufficient to support the exercise of personal

jurisdiction. Burger King,

. Instead, the court

must ask "whether the defendant's contacts with the forum were

instrumental either in the formation of the contract or in its

breach." Phillips, 196 F.3d at 289. In cases such as this one,

where the defendants' actions involving the forum state "are less

tangible than physical presence[,] . . . an inquiring court must

determine the extent to which the defendant directed an out-of-

state activity at the forum" to decide whether the activity is a

contact, for jurisdictional purposes. Id.

The formation of the license agreement took place through

communications between New Hampshire and Florida. PFIP initiated

the contact. The record does not indicate that the defendants

directed activity at New Hampshire. Therefore, the contact that

led to the formation of the agreement does not appear to have

particularly involved New Hampshire.

PFIP alleges that the agreement was breached when the

defendants obtained materials with PFIP logos and trademarks

after feigning interest in a PFIP franchise and also when they

registered the name "PLANET FITNESS" with the Secretary of State

16 in Florida. PFIP initiated contact with PFE to interest Berks in

a PFIP franchise by sending materials to him in Florida. Berks

then responded to PFIP's overtures. No New Hampshire contacts

are implicated by the defendants' registration of the "Planet

Fitness" name in Florida. Therefore, the defendants' contacts

with New Hampshire were not instrumental in either the formation

or the alleged breach of the agreement.

2. Purposeful availment.

"The purposeful availment test reguires us to consider

whether [the defendants' ] contacts with New Hampshire represent a

purposeful availment of the privilege of conducting activities in

New Hampshire, thereby invoking the benefits and protections of

its laws and making the defendants' involuntary presence before

the state's courts foreseeable." Phillips, 196 F.3d at 292

(internal guotation marks and brackets omitted). To demonstrate

purposeful availment, the plaintiff must proffer "evidence that

the defendant[s] actually reached out to the plaintiff's state of

residence to create a relationship - - say, by solicitation, - -

the mere fact that the defendant[s] willingly entered into a

tendered relationship does not carry the day." Id. Purposeful

availment depends upon the extent to which the defendants

voluntarily took action that made it foreseeable they might be

17 required to defend themselves in court in New Hampshire. See Jet

Wine,

.

When considering a contract claim, the court evaluates "the

parties' 'prior negotiations and contemplated future

consequences, along with the terms of the contract and the

parties' actual course of dealing' to determine whether the

defendants purposefully established minimum contacts." Daynard,

(quoting Burger King,

). The

Calder "effects test" may provide some guidance in evaluating

purposeful availment in the context of intentional torts, but

only when both the actual tort and its consequences occurred in

the forum. Swiss Am. Bank,

.

To the extent that copying PFIP's trademarks and logos by

having materials printed in New Hampshire constitutes a copyright

violation and PFIP was injured in New Hampshire by that action,

the "effects test" would support purposeful availment with

respect to that claim. PFIP's case is stronger if the inference

is credited that the defendants hired Spectrum because of its

connection with PFIP. Therefore, purposeful availment appears to

exist with respect to the copyright claims.

The defendants' contacts with New Hampshire do not show

purposeful availment in the context of PFIP' other claims,

however. The defendants did not distribute the allegedly

18 infringing advertising in New Hampshire, did not and do not

operate exercise facilities here, and do not plan to do so in the

future. The parties' agreement pertains to the defendants'

activities in Florida and includes a choice-of-law provision

specifying Florida law. Although Berks and Grondahl continued to

have business contact with each other, by telephone, fax, and

mail between Florida and New Hampshire, no further agreement was

reached, and their contact appears to have been primarily the

result of PFIP's initial overtures. Therefore, PFIP has not

shown that the defendants voluntarily reached out to New

Hampshire to create a relationship so as to make it foreseeable

that they would be reguired to defend themselves in New Hampshire

against the infringement and unfair competition claims PFIP

alleges.6

3. Gestalt factors.

Whether it is reasonable to exercise personal jurisdiction

depends on weighing the "gestalt factors":

(1) the defendant's burden of appearing, (2) the forum state's interest in adjudicating the dispute, (3) the plaintiff's interest in obtaining convenient and

6In contrast, for example, if the suit were an action brought by Spectrum against the defendants alleging breach of the printing agreement, personal jurisdiction would likely be appropriate in New Hampshire.

19 effective relief, (4) the judicial system's interest in obtaining the most effective resolution of the controversy, and (5) the common interests of all sovereigns in promoting substantive social policies.

Jet Wine,

(guoting Foster-Miller, Inc. v. Babcock

& Wilcox Canada,

(1st Cir. 1995)). The

reasonableness inguiry operates on a sliding scale that depends

on the strength of the plaintiff's showing of relatedness and

purposeful availment. Sawtelle,

. When those

elements of specific personal jurisdiction are clearly

established, the gestalt factors rarely preclude jurisdiction.

Cambridge Literary,

. On the other hand, when the

defendants' minimum contacts are weak or worse, the gestalt

factors may tip the balance against exercising jurisdiction.

Nowak v. Tak How Investments, LTD,

(1st Cir.

1996). The primary function of weighing the factors is to put

into "sharper perspective the reasonableness and fundamental

fairness of exercising jurisdiction." Foster-Miller, Inc., 46

F .3d at 150 .

Despite PFIP's protestations to the contrary, defending a

suit in New Hampshire would necessarily put some burden on the

defendants who are Florida corporations and an individual

20 resident of Florida.7 They do not do business in New Hampshire

or anywhere else outside of Florida, and the record does not

suggest that they have any other base of operations here. Cf.

Jet Wine,

(noting forum's distance from place of

defendant's incorporation but also that international company

should not expect to avoid United States courts). Nevertheless,

the defendants have not shown or even argued that defending a

suit in New Hampshire would place an unusual burden on them,

which is necessary for this factor to have constitutional

significance. See Sawtelle,

.

New Hampshire has an interest in having the dispute

adjudicated here because PFIP is a New Hampshire business. That

interest is not compelling, however, because nearly all of the

challenged activities occurred in Florida rather than New

Hampshire. See

In addition, with respect to the breach of

contract claim, the parties' agreement provides that Florida law,

rather than New Hampshire law, governs. See Daynard, 2 90 F.3d at

62. Therefore, the forum state's minimal interest in the case

does not support jurisdiction.

7Ihe defendants failed to address the gestalt factors, optimistically assuming that their arguments with respect to relatedness and purposeful availment were sufficient to defeat jurisdiction. Despite this omission, the court will assess the reasonableness of exercising jurisdiction in this case.

21 As in most cases, it is undoubtedly more convenient for PFIP

to litigate its claims here. The plaintiff's choice of forum is

entitled to some deference. Sawtelle,

.

The fourth factor is the judicial system's interest in

obtaining the most effective resolution of the dispute between

the parties. "Usually this factor is a wash." Nowak,

. When the exercise of jurisdiction would likely result in

having the dispute litigated in different places, however, this

factor counsels against doing so. Pritzker v. Yari,

(1st Cir. 1994). In this case, sufficient contacts between

the defendants and New Hampshire appear to support jurisdiction

only with respect to the copyright claims, leaving PFIP without a

remedy here for the other claims. Because the case in this forum

would not address all of PFIP's claims, the judicial system's

interest weighs against exercising jurisdiction.

The last gestalt factor reguires consideration of any

governmental interests in the substantive social policies

implicated by the litigation. New Hampshire has a policy

interest in protecting its businesses from unfair or infringing

practices of out-of-state actors and in providing a forum for

litigating such disputes. See, e.g., Nowak,

.

Florida also has an interest in protecting its residents and

businesses. In addition, Florida has an interest in preventing

22 confusion among its residents and visitors to the state due to

copyright or trademark infringement or other unfair practices.

Therefore, the governmental interests appear to be evenly

balanced or to favor Florida.

On balance, the gestalt factors do not demonstrate that

exercising jurisdiction over the defendants here would be

constitutionally reasonable. Only the third factor, the

convenience of the forum for PFIP, favors jurisdiction here. The

other factors are either of no particular import or weigh against

exercising jurisdiction here. Therefore, the court concludes

that given the weak showing PFIP has made on the first two

elements, relatedness and purposeful availment, the gestalt

factors tip the balance against exercising jurisdiction in this

case.

C. Venue

Because personal jurisdiction over the defendants is lacking

in this case, the court will not consider that part of the

defendants' motion seeking to transfer the case to the Southern

District of Florida.

23 Conclusion

For the foregoing reasons, the defendants' motions to

dismiss (documents no. 6 and 12) are granted. The case is

dismissed for lack of personal jurisdiction, without prejudice.

The clerk of court shall enter judgment accordingly and close the

case.

SO ORDERED.

Joseph A. DiClerico, Jr. United States District Judge

October 10, 2004

cc: Thomas J. Donovan, Esquire Theresa C. Tucker, Esquire

24