EXPRESS OIL CHANGE, LLC, d/b/a EXPRESS OIL CHANGE v. CAR WASH PARTNERS, INC, d/b/a MISTER CAR WASH
2:19-cv-01640-ACA
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA NORTHERN DIVISION
March 20, 2020
Before the court is Defendant Car Wash Partners, Inc.‘s motion to dismiss the complaint for lack of personal jurisdiction, under
Plaintiff Express Oil Change alleges that Car Wash Partners is infringing a family of trademarks registered to Express Oil Change, and asserts claims for (1) trademark infringement, in violation of the Lanham Act,
I. BACKGROUND
In deciding a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, the court must accept as true the factual allegations made in the complaint unless the defendant contradiсts those allegations with evidence. Posner v. Essex Ins. Co., 178 F.3d 1209, 1215 (11th Cir. 1999).
Plaintiff Express Oil Change, a limited liability company, is organized in Delaware with its principal place of business in Alabama.1 (Doc. 1 at 2 ¶ 2). It provides automotive services, including automobile repair, maintenаnce, and lubrication services, at over 250 locations in 15 States. (Doc. 1 at 2 ¶ 3, 3 ¶ 8). It owns a family of trademarks including “EXPRESS OIL CHANGE.” (Id. at 3 ¶¶ 9-10).
Car Wash Partners does not operate any retail stores in Alabama, does not have any employees in Alabama, does not advertise in Alabama, and is not doing business in Alabama. (Doc. 21-2 at 2 ¶ 4). It does, however, have a website promoting its automotive services, which uses the phrase “OIL CHANGE EXPRESS.”2 (Doc. 1 at 4 ¶ 14; Doc. 1-2 at 2-4). The Executive Vice President of Marketing for Express Oil Change submitted an affidavit in which he attests that he accessed the website while he was in Birmingham, Alabama. (Doc. 24-1 at 2 ¶ 3).
II. DISCUSSION
Under Rule 12(b)(2), the court may dismiss a complaint for “lack of personal jurisdiction.” The plaintiff “beаrs the initial burden of alleging in the complaint
“[A] federal district court‘s authority to assert personal jurisdiction in most cases is linked to service of process on a defendant who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.” Walden v. Fiore, 571 U.S. 277, 283 (2014) (quotation marks omitted). Typically, the court must first determine whether the forum State‘s long-arm statute permits the exercise of jurisdiction, and second determine “whether exercising jurisdiction over the defendant would violate the Due Process Clause of the Fourteenth Amendment.” Sloss Indus. Corp. v. Eurisol, 488 F.3d 922, 925 (11th Cir. 2007). In Alabama, “the two inquiries merge, because Alabama‘s long-arm stаtute permits the exercise of personal jurisdiction to the fullest extent constitutionally permissible.” Id.
“A fundamental element of the specific jurisdiction calculus is that plaintiff‘s claim must arise out of or relate to at least one of the defendant‘s contacts with the forum.” Louis Vuitton Malletier, S.A., 736 F.3d at 1355 (alteration omitted). To make that showing, Express Oil Change relies on the “effects” test set out by the Supreme Court in Calder v. Jones, 465 U.S. 783 (1984).
In Calder, the dеfendants, who lived and worked in Florida, wrote and edited an allegedly libelous article about the plaintiff, which the defendants’ employer published in California. 465 U.S. at 784-85. The defendants drew from “California sources,” targeted a person whose “carеer was centered in California,” and caused
Express Oil Change does not allege that Car Wash Partners had any contact directly with Alabama; it alleges only that Car Wash Partners operates a website that is accessible to people in Alabama. (See Doc. 1 at 7 ¶ 25; see also Doc. 24-1 at 2 ¶ 3). It argues that, under Eleventh Circuit precedent, accessibility of a website is all that is required to satisfy the Calder “effects” test. (Doc. 24 at 5-6). The court disagrees.
In Licciardello, the defendant, Rendy Lovelady, posted a website, which had been creаted in Tennessee, promoting himself as a personal manager for musicians. 544 F.3d at 1282. The website used the trademarked name and an image of the plaintiff, Carman Licciardello, a Florida resident, “implying that Carman endorsed Lovelady‘s skill as a personal manager.” Id. The plaintiff filed suit in Florida for
The Court specifically noted that its holding was limited to a situation in which “the internet is used as a vehicle for the deliberate, intentional misappropriation of a specific individual‘s trademarked name or likeness and that use is aimed at the victim‘s state of residence.” Licciardello, 544 F.3d at 1288 n.8. In arriving at its decision, the Eleventh Circuit notеd with approval an Indiana state court‘s decision holding that the “effects” test was not satisfied “where the plaintiff was a national corporation” because a national corporation‘s “injury is not located in a particulаr geographic location as an individual‘s harm would be.” Id. at 1286 n.7 (citing Conseco, Inc. v. Hickerson, 698 N.E.2d 816, 819 (Ind. App. 1998)).
By its own terms, the Licciardello decision is distinguishable from this case. Express Oil Change has not alleged any facts indicating that Car Wash Partners’ trademark infringement targeted a specific individual located in Alabama. For one thing, Express Oil Change is not an individual, but a limited liability company that
Express Oil Change argues that under Licciardello and a district court opinion interpreting it, personal jurisdiction arises wherever a website that contains infringing materials is accessible. (Doc. 24 at 5-6). But the parts of those opinions Express Oil Change relies on relate to the question whether the mere accessibility of a website can satisfy Florida‘s long-arm statute, not the Constitution‘s
The Supreme Court‘s decision in Walden v. Fiore strengthens this conclusion. In that case, the defendant, a police officer, seized cash from the plaintiffs at an аirport in Georgia. Id. at 280. He then helped draft an affidavit to show probable cause for forfeiture of the funds, which, according to the plaintiffs, was “false and misleading” because it contained misrepresentations and omitted exculpatory information. Id. at 280-81. After the forfeiture and later return of their funds, the plaintiffs filed a civil rights lawsuit in Nevada, where they lived and suffered the injury caused by the defendant‘s conduct. Id. at 281, 289. The United States Supreme Court held that the Nevada district court lacked personal jurisdiction over
The Supreme Court explained that “mere injury to a forum resident is not a sufficient connection to the forum. Regardless of where a plaintiff lives or works, an injury is jurisdictionally relevant only insofar as it shows that the defendant has formed a contact with the forum State.” Walden, 571 U.S. at 290. The fact that the defendant‘s actions were directed at plaintiffs whom he knew resided in Nevada was insufficient to make that showing. Id. at 289.
Here, as in Walden, Car Wash Partner‘s alleged conduct did not take place in Alabama, and the fаct that Express Oil Change may have suffered some injury in Alabama is not enough to find that its claim “arises out of or relate to” a contact that Car Wash Partners made with Alabama. Louis Vuitton Malletier, S.A., 736 F.3d at 1355. Nor do the facts alleged allow the court to find that Car Wash Partnеrs has “purposefully availed” itself of the privilege of conducting activities in Alabama. See id. Accordingly, the court lacks personal jurisdiction over Car Wash Partners, and must dismiss this action without prejudice.
III. CONCLUSION
The court WILL GRANT Car Wash Partners’ motion to dismiss thе complaint for lack of personal jurisdiction, and WILL DISMISS the complaint WITHOUT PREJUDICE.
The court will enter a separate order consistent with this opinion.
DONE and ORDERED this March 20, 2020.
ANNEMARIE CARNEY AXON
UNITED STATES DISTRICT JUDGE