Battle Foam v. Wade 10-CV-116-SM 06/29/10 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Battle Foam, LLC, Plaintiff

v. Civil No. lO-cv-116-SM Opinion No. 2 010 DNH 108 Bryan Wade, d/b/a Outrider Hobbies, Defendant

O R D E R

Plaintiff, Battle Foam, LLC, is an Arizona limited liability

company that "specializes in laser cutting foam for carrying

cases sold in the war gaming market under the mark, BATTLE FOAM,

through [its] website www.battlefoam.com." Complaint (document

no. 1) at 1. It brings this action against Bryan Wade, d/b/a

Outrider Hobbies, seeking preliminary and permanent injunctive

relief, as well as damages for alleged acts of trademark

infringement, unfair competition, false designation of origin,

trademark dilution, deceptive trade practices, injury to business

reputation, and misappropriation of trade secrets. Wade is also

a resident of Arizona.

While the complaint is replete with seeming hyperbole,

including allegations of industrial espionage, unauthorized

access to Battle Foam's manufacturing facility, and theft of

trade secrets, it contains relatively few concrete factual assertions. Nevertheless, it is clear that Battle Foam's claims

rest, largely, on the following proposition:

Outrider Hobbies and Bryan Wade are trying to ride off of the good will of the BATTLE FOAM mark in adopting a similar military oriented FOAM CORPS mark, are passing their products off as Battle Foam products, and have taken other steps to improperly obtain trade secrets from Battle Foam's innovative foam laser cutting technology.

Plaintiff's opposition memorandum (document no. 6) at 1-2. To be

sure. Battle Foam has submitted what it claims is evidence of

consumer confusion between the parties' respective marks. But,

as discussed below, that evidence is of questionable

authenticity.

Wade, proceeding pro se, has filed a motion to dismiss for

lack of personal jurisdiction and improper venue. In the

alternative, he moves the court to transfer venue to the District

of Arizona. Plaintiff objects and asserts that this court may

properly exercise specific personal jurisdiction over Wade.

Standard of Review

When personal jurisdiction is contested, the plaintiff bears

the burden of establishing that the court has such jurisdiction.

See Sawtelle v. Farrell,

(1st Cir. 1995);

Kowalski v. Doherty, Wallace, Pillsburv & Murphy,

, 8

2 (1st Cir. 1986). Allegations of jurisdictional facts are

construed in the plaintiff's favor, see Buckley v. Bourdon,

(D.N.H. 1988), and if, as here, the court

proceeds based upon the written submissions of the parties

without an evidentiary hearing, the plaintiff need only make a

prima facie showing that jurisdiction exists. See Kowalski,

; Bolt v. Gar-Tec Products, Inc.,

(1st Cir. 1992).

Nevertheless, the plaintiff's demonstration of personal

jurisdiction must be based on specific facts set forth in the

record in order to defeat a defendant's motion to dismiss. See

TicketMaster-New York, Inc. v. Alioto,

(1st Cir.

1994). See also Jet Wine & Spirits, Inc. v. Bacardi & Co.,

(1st Cir. 2002) ("Although the burden of proof is

light, [plaintiff] may not rely on the mere allegations of its

complaint, but must point to specific facts in the record that

support those allegations.") . And, "in reviewing the record

before it, a court 'may consider pleadings, affidavits, and other

evidentiary materials without converting the motion to dismiss to

a motion for summary judgment.'" VDI Technologies v. Price,

(D.N.H. 1991) (quoting Lex Computer & Management

Corp. v. Eslinqer & Pelton, B.C.,

(D.N.H.

1987) ) .

3 Because at least some of Battle Foam's claims arise under

federal law, the court's inquiry into whether it may exercise

personal jurisdiction over Wade is necessarily distinct from the

inquiry applicable in diversity cases. See generally United

Elec. Workers v. 163 Pleasant St. Corp.,

(1st Cir.

1992). In a federal question case, "the constitutional limits of

the court's personal jurisdiction are fixed . . . not by the

Fourteenth Amendment but by the Due Process Clause of the Fifth

Amendment." .Id. at 1085. This distinction is significant

"because under the Fifth Amendment, a plaintiff need only show

that the defendant has adequate contacts with the United States

as a whole, rather than with a particular state." United States

v. Swiss Am. Bank, Ltd.,

(1st Cir. 2001) .

Importantly, however, "the plaintiff must still ground its

service of process in a federal statute or civil rule." .Id. In

other words. Battle Foam must demonstrate either: (1) that a

federal statute invoked in its complaint authorizes nation-wide

service of process; or (2) that it served Wade with a copy of its

complaint in a way that comports with the requirements of Rule 4

of the Federal Rules of Civil Procedure.

Here, Battle Foam does not claim that any of the federal

statutes under which it is proceeding authorizes national service

of process. Consequently, the Federal Rules of Civil Procedure

4 provide that it must demonstrate that Wade was served in a manner

consistent with New Hampshire's individual long-arm statute. See

Fed. R. Civ. P. 4(e). That long-arm statute, RSA 510:4,

authorizes jurisdiction over foreign defendants to the full

extent permitted by federal law. See Sawtelle,

.

Stated another way. New Hampshire's long-arm statute is

coextensive with the outer limits of due process protection under

the United States Constitution. Accordingly, the court need only

determine whether the exercise of personal jurisdiction over Wade

would comport with federal constitutional guarantees.

Hence, our analysis comes full circle. When insufficient statutory authorization for extraterritorial service exists. Rule 4 (e) allows such service "only to the extent permitted by the law of the state in which the district court sits." It follows that, absent a federal statute permitting service of process on [defendant] . . . , our threshold inquiry must focus on [state] law concerning personal jurisdiction, notwithstanding that this is a federal question case. And, because state law is subject to Fourteenth Amendment limitations, the minimum contacts doctrine, while imposing no direct state-by-state constraint on a federal court in a federal question case, acts indirectly as a governing mechanism for the exercise of personal jurisdiction.

United Elec. Workers, 960 F.2d at 1086 (emphasis supplied)

(citation omitted).

Ultimately, then, as in a diversity case. Battle Foam must

still show that Wade has "certain minimum contacts with the forum

5 such that the maintenance of the suit does not offend traditional

notions of fair play and substantial justice," Helicopteros

Nacionales de Colombia, S.A. v. Hall,

(1984)

(citation and internal punctuation omitted), and that Wade's

conduct bears such a "substantial connection with the forum

State" that he "should reasonably anticipate being haled into

court there." Burger King Corp. v. Rudzewicz,

, 473-

75 (1985) (citing World-Wide Volkswagen Corp. v. Woodson,

(1980)). The court of appeals for this circuit has

summarized those jurisdictional requirements as follows:

To begin, the defendant must have purposeful "minimum contacts" with the state. Further, the exercise of jurisdiction must be "reasonable" under the circumstances. The third requirement . . . is that the plaintiff's claims be related to the defendant's contacts.

Cambridge Literary Props, v. W. Goebel Porzellanfabrik,

(1st Cir. 2002) (citation omitted). See also Sawtelle,

(describing the three essential jurisdictional

elements as "relatedness," "purposeful availment," and the so-

called "Gestalt factors").

Background

Battle Foam is an Arizona limited liability company that

specializes in laser cutting foam for carrying cases that are

sold in the war gaming miniature market. It sells those foam

6 products under the mark BATTLE FOAM and does business throughout

the United States. Here in New Hampshire, it sells its products

through several gaming and hobby shops. It registered the

trademark "BATTLE FOAM" in 2009 and the "mark consists of

standard characters, without claim to any particular font, style,

size, or color." Complaint, Exhibit A (document no. 1-2). It

has also filed a patent application for a "Method and Apparatus

for Fabricating a Foam Container with a Computer Controlled Laser

Cutting Device." See Complaint, Exhibit C (document no. 1-4).

Defendant, Bryan Wade, resides in Queens Creek, Arizona. He

is employed as a full-time customer service representative and

also works as a part-time process server. Additionally, he does

business under the name "Outrider Hobbies" and maintains a Web

site with the same second level domain name. Like Battle Foam,

Wade produces foam inserts for carrying/storage cases, which are

used by players and collectors in the war gaming miniature

market. Although the record is not entirely clear on this point,

it appears that Wade sells his foam products primarily through

his Web site, but a few retail stores in Arizona, Pennsylvania,

and Texas also carry his products. Wade denies that he has ever

conducted business with any resident(s) of New Hampshire and says

he has never shipped any of his foam products or directed any

marketing or promotional material into this forum.

7 With respect to the merits, in support of its assertion that

"Foam Corps" is deceptively similar to its "Battle Foam" mark

and, therefore, is causing confusion among the consuming public.

Battle Foam submitted what it says is an e-mail it received from

a man named Jim Kavourias:

My name is Jim and I'm writing you because I have run into a problem. I recently got some custom cut foam for my army transport. When my foam arrived I was surprised to see that the quality of the foam was much less then what you post on your site. I ordered several troop trays and I am mainly upset with the quality of the glue and overall design. When I placed my order I spoke to a man named Brian from foam corps. He explained to me that "all battlefoam trays" are the same quality and that my order would come out perfect. At this point I am completely baffled since I had no idea that these are not battlefoam trays. Your company needs to place some kind of disclaimer pointing this out to us customers. All foam looks the same to me and when other companies are telling us that their trays are the same and that they sell battlefoam it makes things very hard. I tried to call the company I bought it [from] but the sales guy told me to contact you.

Please help as I feel cheated here and foam corps or battlefoam or whatever needs to make things right.

Complaint, Exhibit E (document no. 1-6).

Wade, however, has uncovered evidence that calls into

question the authenticity of that correspondence. In his

affidavit, Wade testified to the following:

Neither I nor Outrider Hobbies have ever conducted any business with a "Jim Kavourias," the confused customer whose e-mail is attached to Plaintiff's Complaint as Exhibit E. Furthermore, there are no records in the Outrider Hobbies Online Store database indicating that Jim Kavourias ever purchased any products from Outrider Hobbies or contacted me or Outrider Hobbies.

Despite my attempts to contact Mr. Kavourias through the email provided, [email protected], I have never received a response from Mr. Kavourias or an e-mail indicating that my attempt to e-mail him was unsuccessful.

On April 11, 2010, while searching the internet in an attempt to locate Jim Kavourias by other means, I found the names "Jim Kavourias" and "Jim K." on the website for Diablo Bats, another business of Romeo Filip [the registered agent and a principal owner of Battle Foam]. Jim Kavourias was listed as someone that uses bats manufactured by Diablo Bats and Jim K. had provided a testimonial discussing his use of the bats. On April 12, 2010, Plaintiffs attorney was made aware of these facts regarding Jim Kavourias. When I conducted another search on April 15, 2010, I found that the name "Jim Kavourias" had been removed from the Diablo Bats website.

True Examples of the original website as found on April 11th, 2010, the changed website as found on April 15th, 2010, and a cached, or saved, version of the original page from April 7, 2010 as found through google.com on April 16th, 2010 are included as Defendant's Exhibit A.

A True Example of the email, [email protected], being associated with Jim Kavourias, a minor league baseball player for the Florida Marlins is included as Defendant's Exhibit B. This example was retrieved from the internet on May 14th, 2010.

Declaration of Bryan Wade (document no. 8-1) at para. 3.1

1 The Arizona Corporation Commission reports that Battle Foam, LLC has two members: Romeo Filip and Jama Filip. The Web site for Diablo Bats(www.diablobats.com/about_ash_maple_bats.htm) lists Romeo Filip as the company's president (though, perhaps, that is a reference to Filip's role as president of "Filip, Inc.," formerly "Big Bats, Inc."). See Arizona Corporate File no. 1059594-6, available at http://starpas.azcc.gov/scripts/

9 It is, of course, possible that the fifth round pick of the

Florida Marlins in the 2000 draft is both a fan of Diablo bats

and a collector in the war gaming miniature market who is

familiar with Battle Foam's products. It is also possible that

the baseball player who provided the testimonial for Diablo bats

and the confused customer who contacted Battle Foam simply share

the same name. A third possibility is decidedly less savory and,

hopefully, is not the case here.

Discussion

The reason Battle Foam decided to sue Wade in this forum -

nearly 2,700 miles from both its principal place of business and

Wade's residence - is unclear. This, however, is undeniable:

short of filing in the District of Alaska, Maine, or Puerto Rico,

Battle Foam would have been hard pressed to find a more distant

and inconvenient federal forum in which to require Wade to appear

(the same is true for any potential witnesses - nearly all of

whom one might reasonably infer are beyond this court's civil

subpoena power, including Mr. Kavourias). Wade believes this

suit and, in particular. Battle Foam's choice of forum, are part

of a larger, ongoing pattern of harassment that he says has been

directed toward him.

cgiip.exe/WService=wsbrokerl/names-detail.p?name-id=l059594 6&type CORPORATION

10 But, of course. Battle Foam's subjective motivations are, at

least at this juncture, immaterial to the legal issues before the

court, as are the merits of its questionable infringement claims

against Wade. For now, the court must focus on whether it may,

consistent with the Due Process Clause of the Fourteenth

Amendment, exercise personal jurisdiction over Wade.

I. Wade's Ability to Appear "on Behalf of" Outrider Hobbies.

As a preliminary matter. Battle Foam objects to Wade

"representing" Outrider Hobbies, asserting that it is a "de facto

corporation," and pointing out that pro se defendants may not

represent corporate entities. Plaintiff's memorandum (document

no. 6) at 4-5. But, Battle Foam fails to explain precisely what

it means by "de facto corporation," nor does it discuss the legal

significance of such an entity.

Outrider Hobbies is the name under which Wade transacts

business. It is not a corporate entity or unincorporated

association. See Declaration of Bryan Wade (document no. 8-1) at

8. Consequently, Wade is the only defendant to this action and

Battle Foam's assertion that he cannot "represent" or "appear on

behalf of" Outrider Hobbies is without merit. See

. See also Centrifugal Force, Inc. v. Softnet Communication,

Inc.,

, 1 (S.D.N.Y. 2009) ("Since PowerLine

11 Computers is simply the alter ego of Staszulonek (and thus an

unnecessary party), Staszulonek may appear under both his actual

name and his 'd/b/a.' Although both 'Staszulonek' and

'PowerLine' are used in this opinion, the actual defendant in

interest is Staszulonek."); Microsoft Corp. v. Moss,

, 1 (N.D.Ga. 2007) ("A corporation cannot represent itself

in court without an attorney, and failure to comply with this

rule can result in default being entered against the corporate

party. . . . However, Earl, Tony, and Daphne Moss remain as

defendants, individually and collectively d/b/a Affordable

Computers, and, as individuals may proceed pro se.").

II. Personal Jurisdiction over Wade.

Turning to the jurisdictional issue, it is plain that Battle

Foam has not carried its burden of making even a prima facie

showing that this court may properly exercise personal

jurisdiction over Wade. The thrust of Battle Foam's argument is

this: that Wade has "sufficient minimum contacts [with this

forum] mainly because [he] own[s] and operate[s] an online

website that customers in New Hampshire and across the United

States can easily access and directly purchase the goods in

question." Plaintiff's memorandum at 2. See also

("The

www.outriderhobbies.com website and online store selling the FOAM

CORPS products are clearly accessible from New Hampshire and it

12 is easy for a business or resident of New Hampshire to log on to

this site and purchase goods from the website itself. Therefore,

Defendants are purposefully availing themselves within this forum

and are deriving the benefits associated with selling online to

all residents of the United States, including those in New

Hampshire.").

In other words. Battle Foam urges this court to exercise

personal jurisdiction over Wade because he operates a Web site

through which residents of New Hampshire may, if they so choose,

purchase goods. But, Battle Foam has offered no evidence of any

such purchases. Nor does it have any evidence that Wade has

shipped any goods into this forum, or that he has transacted

business of any sort with even a single New Hampshire resident.

In Battle Foam's view, merely operating a retail Web site that is

accessible by residents of New Hampshire is, without more,

sufficient to establish the requisite "minimum contacts" with

this forum.

Plainly, however, its position is incorrect. If a federal

court were to adopt Battle Foam's view of "minimum contacts," it

would undermine the concepts of due process and fundamental

fairness that are the linchpins to the personal jurisdiction

13 analysis. As the Court of Appeals for the Third Circuit has

succinctly observed:

[T]he mere operation of a commercially interactive web site should not subject the operator to jurisdiction anywhere in the world. Rather, there must be evidence that the defendant "purposefully availed" itself of conducting activity in the forum state, by directly targeting its web site to the state, knowingly interacting with residents of the forum state via its web site, or through sufficient other related contacts.

Tovs "R" Us, Inc. v. Step Two, S.A.,

(3d Cir.

2003). As noted above. Battle Foam has pointed to no evidence

suggesting that Wade has purposefully availed himself of

conducting activity in New Hampshire.

In response to Battle Foam's expansive view of personal

jurisdiction and its largely unsupported factual assertions, Wade

has submitted an affidavit in which he states that:

Outrider Hobbies has never conducted any business in the state of New Hampshire. No customers from New Hampshire have purchased any items from me or Outrider Hobbies. Upon examination of my records, neither I nor Outrider Hobbies have ever sent any promotional materials to any retail or wholesale customers in the state of New Hampshire. A search of my records indicates that I have only done business in Arizona, Pennsylvania, Texas, Illinois, Ohio, Alabama, Colorado, New York, and Michigan.

Declaration of Bryan Wade, at para. 2. Little more need be said

on the matter and no complex or detailed legal analysis is

14 necessary. Given Wade's unrebutted sworn testimony, it is plain

that this court lacks personal jurisdiction over him.

Conclusion

Battle Foam bears the burden of establishing that this court

may properly exercise personal jurisdiction over Wade. It has

failed to point to any evidence even remotely suggesting that

Wade has the minimum contacts with this forum necessary to

support this court's exercise of personal jurisdiction over him.

Accordingly, Wade's motion to dismiss is granted.

Parenthetically, the court suggests that prior to refiling

this complaint in another forum. Battle Foam and its counsel

might give serious consideration to the legal claims they are

advancing, as well as the factual allegations leveled against

Wade to ensure that they are supported by legal authority and an

evidentiary basis (e.g., allegations that Wade "intentionally

directed [his] tortious activities toward New Hampshire,"

Complaint at para. 6; that Wade and Outrider Hobbies, "using

Battle Foam's misappropriated trade secrets, have introduced

products of inferior quality to the marketplace under the FOAM

CORPS mark that consumers believe to be Battle Foam products,"

at para. 23; that Wade "surreptitiously obtained access to

and/or information from Battle Foam's industrial facility and

15 misappropriated trade secrets . . . which are the subject of

Battle Foam's M 1 0 patent application," id,, at para 21; etc.) .

As currently developed, the record in this case contains

some suggestion that Battle Foam's evidence of consumer confusion

regarding the parties' respective marks may be suspect. And,

there is a reasonable basis to question why this suit was filed

in this forum. At a minimum, a bit of sober reflection by Battle

Foam and its counsel would seem to be in order. See generally

Fed. R. Civ. P. 1 1 (b).

For the foregoing reasons, as well as those set forth in

Wade's submissions, defendant's motion to dismiss for lack of

personal jurisdiction (document no. 5) is granted. The Clerk of

Court shall enter judgment in accordance with this order and

close the case.

SO ORDERED.

St'even J./McAuliffe Chief Judge

June 2 9, 2 010

cc: Scott A. Daniels, Esq. Bryan Wade, pro se

16