United States District Court, S.D. Indiana, Indianapolis Division
RICHARD N. BELL, Plaintiff,
HALCYON BUSINESS PUBLICATIONS, INC., Defendant.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS FOR
LACK OF JURISDICTION
EVANS BARKER, JUDGE United States District Court Southern
District of Indiana
cause is before the Court on Defendant's Motion to
Dismiss for Lack of Jurisdiction [Docket No. 16], filed on
December 29, 2017, pursuant to Rule 12(b)(2) of the Federal
Rules of Civil Procedure. Plaintiff Richard N. Bell has
brought his claim against Defendant Halcyon Business
Publications, Inc. (“Halcyon”), alleging that
Halcyon committed copyright infringement when it allegedly
downloaded and posted on its website a photograph of the
Indianapolis skyline (“Indianapolis Photo”) taken
by Mr. Bell. Halcyon contends that this court lacks
personal jurisdiction over it and seeks dismissal. For the
reasons detailed below, we GRANT Defendant's
Motion to Dismiss.
Bell, an Indiana resident, filed his complaint in this action
on November 29, 2017, alleging copyright infringement and
violations of the Lanham Act. Specifically, Mr. Bell alleges
that Halcyon displayed on its website the Indianapolis Photo
without his permission and added a copyright notice to its
site falsely indicating that Halcyon owns the rights to the
is a for-profit limited corporation organized under the laws
of New York with its principal place of business in Westbury,
New York. Dennis Shea owns Halcyon and is a resident of
Westbury, New York. Halcyon publishes Area Development
magazine, which is a publication covering corporate site
selection and relocation throughout the United States.
Halcyon also operates a website which displays postings
regarding cities around the country, including Indianapolis.
Halcyon does not maintain any offices in Indiana, has no
employees in Indiana, holds no assets located in Indiana,
pays no taxes to the State of Indiana, and has no bank or
other financial institution accounts in Indiana. Likewise,
Mr. Shea, the principal officer of Halcyon, has never lived
in Indiana, does not have an Indiana driver's license or
a bank account in Indiana, and has never paid taxes to the
State of Indiana.
acknowledges that, between 2011 and 2017, it paid one Indiana
resident, Steve Stackhouse-Kaelble, to write for Area
Development as an independent contractor. Halcyon did not,
however, pay Mr. Stackhouse-Kelble to write the article that
contained the Indianapolis Photo. Halcyon also sold
advertising to two Indiana companies between 2011 and 2017,
which advertisements represented 3.26% and 4.55% of
Halcyon's total online and magazine revenues in 2016 and
2017, respectively. Of the 34, 701 total unpaid subscribers
of Area Development magazine nationwide, 1, 056 are from
Indiana, comprising 3% of total subscribers. The record
before us reveals that Halcyon has no other connections with
Rule of Civil Procedure 12(b)(2) requires dismissal of a
claim where personal jurisdiction is lacking. When “[a]
defendant moves to dismiss the complaint under Federal Rule
of Civil Procedure 12(b)(2) for lack of personal
jurisdiction, the plaintiff bears the burden of demonstrating
the existence of jurisdiction.” Purdue Research
Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782
(7th Cir. 2003). When, as here, a district court rules on a
defendant's motion to dismiss based on the submission of
written materials, the plaintiff “need only make out a
prima facie case of personal jurisdiction” and
“is entitled to the resolution in its favor of all
disputes concerning relevant facts presented in the
record.” Id. (internal citations omitted).
order to properly exercise personal jurisdiction over a
non-resident defendant, the court must undertake and satisfy
a two-step analysis. First, the court must determine whether
its exercise of jurisdiction over the defendant comports with
the forum's long-arm statute. Assuming the first step is
satisfied, the court must then determine whether this
exercise is authorized by the Due Process Clause of the
Constitution. See Felland v. Clifton, 682 F.3d 665,
672 (7th Cir. 2012). Because Indiana's long-arm statute
“reduce[s] analysis of personal jurisdiction to the
issue of whether the exercise of personal jurisdiction is
consistent with the [f]ederal Due Process Clause, ” we
need only discuss the second step of this analysis.
LinkAmerica Corp. v. Cox, 857 N.E.2d 961, 967 (Ind.
2006); Ind. Trial R. 4.4(a).
process subjects a defendant to personal jurisdiction in a
particular state only if the defendant has “certain
minimum contacts with [that state] such that the maintenance
of the suit does not offend ‘traditional notions of
fair play and substantial justice.'” Mobile
Anesthesiologists Chi., LLC v. Anesthesia Assocs. of Hous.
Metroplex, P.A., 623 F.3d 440, 443 (7th Cir. 2010)
(quoting Int'l Shoe Co. v. Washington, 326 U.S.
310, 316 (1945)). A defendant's “minimum
contacts” with the forum state must involve its
“purposeful[ ] avail[ment] … of the privilege of
conducting activities within the forum [s]tate, thus invoking
the benefits and protections of its laws.” Asahi
Metal Indus. Co. v. Super. Ct. of Cal., 480 U.S. 102,
109 (1987) (citation omitted). The requirement of purposeful
availment allows potential defendants to reasonably
anticipate conduct for which they may be haled into court in
a foreign jurisdiction. Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 472 (1985).
jurisdiction may be either specific or general. The exercise
of specific jurisdiction over a particular defendant is
proper if the cause of action “is related to or
‘arises out of' [the] defendant's contacts with
the forum … [such] that a ‘relationship among
the defendant, the forum, and the litigation” exists.
Helicoptores Nacionales de Colom., S.A. v. Hall, 466
U.S. 408, 414 (1984) (quoting Shaffer v. Heitner,
433 U.S. 186, 204 (1977)). By contrast, the Constitution
places a “considerably more stringent”
restriction on a court's exercise of general
jurisdiction. Purdue Research Found., 338 F.3d at
787 (citing United States v. Swiss Am. Bank, Ltd.,
274 F.3d 610, 619 (1st Cir. 2001)). General jurisdiction over
a particular defendant exists only “when the
[party's] affiliations with the State in which suit is
brought are so constant and pervasive ‘as to render
[i]t essentially at home in the forum State.'”
Daimler AG v. Bauman, 571 U.S. 117, 121 (2014)
(quoting Goodyear Dunlop Tires Operations, S.A. v.
Brown, 564 U.S. 915, 919 (2011)). “These contacts
must be so extensive to be tantamount to [the defendant]
being constructively present in the state to such a degree
that it would be fundamentally fair to require it to answer
in an Indiana court in any litigation arising out of
any transaction or occurrence taking place
anywhere in the world.” Purdue Research
Found., 338 F.3d at 787. In other words, where such
continuous and systematic contacts are present, the court may
exercise jurisdiction over the defendant regardless of the
subject matter of the lawsuit. Hyatt Int'l Corp. v.
Coco, 302 F.3d 707, 713 (7th Cir. 2002).
Bell maintains that, by virtue of its contacts with Indiana,
Halcyon is subject to both general and specific jurisdiction
in the state. We disagree. First, with regard to general
jurisdiction, it is clear that Halcyon does not have the
requisite “continuous and systematic contacts”
with Indiana that would render it “essentially at
home” here as is required for the exercise of general
jurisdiction. See Goodyear, 564 U.S. at 919. Mr.
Bell attempts to support general jurisdiction over Halcyon
with a one-sentence assertion, to wit, that “each year,
” the company has “‘continuous and
systematic contacts' with more than 4, 000 [ ] Hoosier
residents.” Pl.'s Resp. at 6. However, Mr. Bell
fails to cite any evidence to support this number of claimed
contacts with Indiana or expand in any way on this conclusory
assertion. The Seventh Circuit has recognized that in cases
like this where the defendant is neither incorporated in nor
has its principal place of business in the forum state, the
exercise of general jurisdiction requires “more than
the ‘substantial, continuous, and systematic course of
business' that was once thought to suffice.”
Kipp v. Ski Enterprise Corp. of Wis., Inc., 783 F.3d
695, 698 (7th Cir. 2015) (citing Daimler, 571 U.S.
at 136-39). Thus, ...