TABLE OF CONTENTS
I. INTRODUCTION.........................................................826
II. PROCEDURAL BACKGROUND............................................826
III. SUBJECT MATTER JURISDICTION.......................................827
IV. STANDARD OF REVIEW..................................................827
V. RELEVANT FACTUAL BACKGROUND.....................................827
A. Parties...............................................................827
B. Transaction..........................................................827
C. Prior Action..........................................................829
VI. ANALYSIS...............................................................830
A. Personal Jurisdiction .................................................830
1. Personal jurisdiction standard.....................................830
2. Personal jurisdiction over Cynosure.................................831
a. Judicial estoppel ..............................................831
b. Forum selection clauses in Lease and Guaranty..................833
c. Cynosure’s contacts with Iowa..................................835
i. VGM-financed transactions................................836
ii. Cynosure’s website........................................837
Hi. Remaininy contacts with Iowa.............................839
d. Conclusion....................................................841
B. Venue................................................................841
VII. CONCLUSION............................................................841
I. INTRODUCTION
The matter before the court is the “Motion to Dismiss Amended Third Party Complaint for Lack of Personal Jurisdiction and Improper Venue” (“Motion”) (docket no. 25), filed by Third-Party Defendant Cynosure, Inc. (“Cynosure”).
II. PROCEDURAL BACKGROUND
On August 3, 2009, Plaintiff VGM Financial Services (“VGM”) filed a “Petition at Law” (“Complaint”) against Varinder K. Singh, M.D., P.C. (“Singh P.C.”) and Varinder K. Singh (“Dr. Singh”) (together, “Singh”) in the Iowa District Court for Black Hawk County, Case No. LACV 109968. On August 19, 2009, Singh removed the action to this court pursuant to 28 U.S.C. § 1441.
On August 21, 2009, Singh filed an Answer (docket no. 7) to the Complaint and asserted counterclaims against VGM. That same date, Singh filed a five-count Third-Party Complaint (docket no. 8) against Cynosure. In the Third-Party Complaint, Singh asserted claims against Cynosure for fraud, negligent misrepresentation, negligence, breach of warranty and common law indemnity. On September 8, 2009, VGM filed an Answer to Singh’s counterclaims (docket no. 12).
On November 10, 2009, Cynosure filed a “Motion to Dismiss Third Party Complaint for Lack of Personal Jurisdiction and Improper Venue” (“First Motion to Dismiss”) (docket no. 15). On November 27, 2009, Singh filed a Resistance (docket no. 17) to
On February 2, 2010, the undersigned issued an Order (docket no. 24). In the Order, the court noted that the Amended Third-Party Complaint “ supercede [d] the Third-Party Complaint and render[ed] it legally ineffective.” Order at 2. Because the First Motion to Dismiss sought dismissal of the Third-Party Complaint — not the Amended Third-Party Complaint — the court denied the First Motion to Dismiss as moot with leave to refile.
On February 12, 2010, Cynosure filed the Motion. On March 1, 2010, Singh filed a Resistance (docket no. 27). On March 8, 2010, Cynosure filed a Reply (docket no. 33). On April 8, 2010, Singh filed a Supplemental Resistance (“Supp. Resistance”) (docket no. 50). On April 15, 2010, Cynosure filed a Surreply (docket no. 52).
III.SUBJECT MATTER JURISDICTION
The court has diversity jurisdiction over this case because complete diversity exists among the parties and the amount in controversy exceeds $75,000. See 28 U.S.C. § 1332 (“The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different States”). The court is satisfied that subject matter jurisdiction exists.
IV.STANDARD OF REVIEW
The party seeking to establish personal jurisdiction bears the burden to prove it exists. Romak USA, Inc. v. Rich, 384 F.3d 979, 983-84 (8th Cir.2004). At this stage in the proceedings, Singh need not prove personal jurisdiction by a preponderance of the evidence. Id. at 983. Rather, Singh need only make a prima facie showing of jurisdiction. Id. Singh may use affidavits, exhibits or other evidence to meet its burden. Id. The court must review the evidence in the light most favorable to the non-moving party. Id.
V.RELEVANT FACTUAL BACKGROUND
A. Parties
VGM is a division of TCF Equipment Finance, a Minnesota corporation. VGM’s principal place of business is in Waterloo, Iowa. Singh P.C. is a Georgia professional corporation with a principal place of business in Duluth, Georgia. Dr. Singh is a medical doctor and resides in Duluth, Georgia. Dr. Singh owns Singh P.C.
Cynosure is a Delaware corporation with its principal place of business in Massachusetts. Cynosure manufactures medical devices, including the Cynosure SmartLipo Laser Body Sculpting Workstation (“Equipment”).
B. Transaction
In early 2008, Mike Denkman, a sales manager for Cynosure, contacted Dr. Singh regarding a possible purchase of the Equipment. According to Denkman, he did so after Dr. Singh expressed interest in the Equipment via Cynosure’s website. On March 3, 2008, Denkman and Dr. Singh met in Georgia. At the meeting, Denkman and Dr. Singh executed a “Customer Purchase Agreement” (“First Purchase Agreement”) dated February 20, 2008. In the First Purchase Agreement, Singh agreed to purchase the Equipment from Cynosure. However, Singh later had “second thoughts” about the purchase and asked to cancel the order. Affidavit of Mike Denkman (“Denkman Aff.”) (docket no. 25-1 at
Dr. Singh “reinitiated contact with [Denkman], again seeking to purchase the same [E]quipment.” Id. at ¶ 6. According to Denkman, Dr. Singh had “originally expressed an interest in leasing the [Equipment through a third-party financing company,” so Denkman “submitted a request for financing to MedCap Financial, LLC, the company through [which] Cynosure helps its customers to obtain third-party financing if they so choose.” Id. at ¶ 8. Denkman avers that, “after Cynosure informs MedCap Financial that one of its customers is interested in obtaining third-party financing, MedCap Financial finds a third party that is willing to provide the customer financing.” Id. at ¶ 10. “The third party then provides proposed terms of the lease to the customer, who can choose to accept the terms, attempt to find another third-party to provide financing, self-finance the transaction or cancel the transaction completely.” Id.
According to Denkman, MedCap Financial “found” VGM, “who was willing to provide financing to Dr. Singh and [Singh P.C.].” Id. at ¶ 11. Denkman states that, “pursuant to typical practice, VGM then sent copies of the proposed Lease and Guaranty both to Dr. Singh and to [Denkman].” 1 Id.
On May 20, 2008, Denkman met Dr. Singh at a Starbucks in Georgia to complete the transaction. Cynosure contends that, at the May 20, 2008 meeting, Dr. Singh executed a second “Customer Purchase Agreement” (“Second Purchase Agreement”) (docket no. 25-1), at pp. 23-24. The Second Purchase Agreement is two pages long. At the bottom of the second page, it provides:
This [Second Purchase] Agreement shall be governed by and construed under the substantive laws of the Commonwealth of Massachusetts. The Customer agrees to submit all disputes arising out of, or relating to, this [Second Purchase] Agreement to a court in Boston, Massachusetts.
Id. at 24. Cynosure argues that Dr. Singh signed the first page of the Second Purchase Agreement and initialed the bottom of the second page. However, Dr. Singh contends that she did not sign or initial the Second Purchase Agreement.
At the May 20, 2008 meeting with Denkman, Dr. Singh executed a “Lease Agreement” (“Lease”) with VGM, on behalf of Singh P.C. Complaint Ex. A. Pursuant to the Lease Agreement, Singh P.C. leased the Equipment from VGM. The Lease Agreement contains a provision entitled “GOVERNING LAW; LITIGATION,” which provides:
This [Lease] Agreement shall be interpreted and governed by the laws of the State of Iowa. BY SIGNING THIS [LEASE] AGREEMENT, CUSTOMER AGREES TO THE JURISDICTION AND VENUE OF FEDERAL AND STATE COURTS IN IOWA AND CUSTOMER HEREBY WAIVES ITS RIGHT TO A JURY TRIAL. [VGM], at its sole discretion, may enforce this[Lease] Agreement in any state or federal court having lawful jurisdiction thereof.
Id. at ¶ 5 (emphasis in original).
At the same time, Dr. Singh executed a “Personal Guaranty” (“Guaranty”) with VGM. Complaint Ex. B. In the Guaranty, Dr. Singh agreed that:
I KNOWINGLY AND VOLUNTARILY AGREE TO THE JURISDICTION AND VENUE OF FEDERAL AND STATE COURTS IN IOWA.
Id. (emphasis in original).
According to Denkman, Dr. Singh could have returned the Lease and Guaranty to VGM herself, but instead asked Denkman to do so. Denkman then “forwarded the Lease and Guaranty to MedCap Financial.” Denkman Aff. at ¶ 12. Denkman states that it is “typical practice for Med-Cap Financial to then forward the documents to the party providing third-party financing.” Id. at ¶ 13. Because Cynosure generally retains MedCap Financial to find third-party financing for its customers, Denkman does “not directly contact the party providing financing to a customer.” Id. at ¶ 14. Denkman “did not contact VGM or its employees while working with Dr. Singh on her purchase.” Id.
C. Prior Action
On February 4, 2009, VGM filed a “Petition at Law” against Singh in the Iowa District Court for Black Hawk County, case no. LACV 108119. On March 3, 2009, Singh removed the action to this court pursuant to 28 U.S.C. § 1441, giving rise to
VGM Fin. Serv. v. Singh, et al.,
09-CV-2017-LRR,
On March 28, 2009, VGM filed an Answer (Prior Action docket no. 13) to Singh’s counterclaims. On April 16, 2009, Cynosure filed an Answer (Prior Action docket no. 14) to the Third-Party Complaint. In its Answer, Cynosure admitted that it “is subject to the jurisdiction and venue of this [c]ourt.” Third-Party Complaint in Prior Action at ¶ 2; Answer in Prior Action at ¶ 2.
On June 16, 2009, the Clerk of Court filed a “Notice of Dismissal” (Prior Action docket no. 16) in which it notified the parties that the Prior Action would dismissed pursuant to Local Rule 41 “unless appropriate action is taken by or no later than June 30, 2009.” Notice of Dismissal at 1. On July 2, 2009, the Clerk entered a “Dismissal Order” (Prior Action docket no. 17) stating that “[appropriate action was not taken in [the Prior Action] within the time provided in the [Notice of Dismissal.]” Dismissal Order at 1. Accordingly, the Clerk dismissed the Prior Action “with prejudice” based on the parties’ failure to submit a proposed scheduling order and discovery plan. Id.
On July 7, 2009, VGM filed a “Motion to Modify Dismissal Order” (Prior Action docket no. 18). VGM argued that the Clerk improperly dismissed the Prior Action with prejudice. VGM asked the court to “modify the Dismissal Order so that the [Prior Action] is dismissed
without
prejudice.” Motion to Modify Dismissal Order at 2 (emphasis in original). On July 31, 2009, United States Magistrate Judge Jon S. Scoles entered an “Order Amending Judgment of Dismissal” (Prior Action docket no. 21). Judge Scoles concluded that the Clerk of Court “exceeded his au
VI. ANALYSIS
Cynosure asks the court to dismiss the Amended Third-Party Complaint for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). Cynosure also asks the court to dismiss the Amended Third-Party Complaint for improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3).
A. Personal Jurisdiction
Cynosure argues that the court may not exercise personal jurisdiction over it. Cynosure argues that it has insufficient contacts with Iowa to be subject to personal jurisdiction. Singh contends that Cynosure has sufficient contacts with Iowa. Alternatively, Singh argues that Cynosure is bound by the choice-of-law and forum selection clauses in the Lease Agreement and Guaranty between Singh P. C., Dr. Singh and VGM. Finally, Singh argues that Cynosure is judicially estopped from challenging personal jurisdiction and venue because it did not raise these defenses in the Prior Action.
1. Personal jurisdiction standard
“A federal court may exercise personal jurisdiction over a nonresident defendant only if doing so is consistent with both the forum state’s long-arm statute and the requirements of the Due Process Clause.”
Primus Corp. v. Centreformat Ltd.,
“The Due Process Clause requires that ‘minimum contacts’ exist between the nonresident defendant and the forum state before the court can exercise jurisdiction over the defendant.”
Miller v. Nippon Carbon Co., Ltd.,
“The Supreme Court has recognized two theories for evaluating personal jurisdiction: general and specific jurisdiction.”
Steinbuch v. Cutler,
“Both theories of personal jurisdiction require ‘some act by which the defendant purposely avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.’ ”
Dever,
2. Personal jurisdiction over Cynosure
First, the court considers whether Cynosure is judicially estopped from contesting personal jurisdiction and venue based on its conduct in the Prior Action. Then, the court considers whether Cynosure is subject to personal jurisdiction in Iowa based on the forum selection clauses in the Lease and Guaranty executed by Singh and VGM. Finally, the court considers whether Cynosure has sufficient contacts to be subject to personal jurisdiction in Iowa.
a. Judicial estoppel
Singh alleges that Cynosure is “subject to the jurisdiction ... of this [cjourt based on Cynosure’s Answer filed in [the Prior Action] in this [c]ourt in which Cynosure admitted that it ‘is subject to the jurisdiction and venue of this [c]ourt.’ ” Amended Third-Party Complaint at ¶ 5. Specifically, Singh contends that “the admission by Cynosure in the Prior [Action] judicially estops Cynosure from now claiming that jurisdiction and venue are inappropriate in this [c]ourt.” Resistance at 23.
Cynosure argues that the court’s dismissal of the Prior Action without prejudice simply “ ‘rendered] the [Prior Action] a nullity and le[ft] the parties as if the [Prior Action] had never been brought.’ ” Cynosure Brief at 11 (quoting
Norman v. Arkansas Dept. of Educ.,
The Eighth Circuit Court of Appeals has long held that “[t]he effect of a
Because dismissed proceedings become a nullity, the court’s decisions or the parties’ pleadings prior to a voluntary dismissal without prejudice are generally afforded no preclusive effect.
See Piper Aircraft,
Although the dismissal of the Prior Action was not a
voluntary
dismissal, it was nonetheless a dismissal without prejudice. The court finds that the dismissal of the Prior Action without prejudice simply rendered the Prior Action a nullity and left the parties “ ‘as if the action had never been brought.’ ”
Norman,
Even if the Prior Action (and the parties’ pleadings therein) was not nullified by the court’s dismissal without prejudice, the court finds that Cynosure’s jurisdiction and venue challenges are not barred by judicial estoppel. “The doctrine of judicial estoppel ‘protects the integrity of the judicial process.’ ”
Stallings v. Hussmann Corp.,
First, a party’s later position must be clearly inconsistent with its earlier position. Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or second court was misled. Absent success in a prior proceeding, a party’s later inconsistent position introduces no risk of inconsistent court determinations, and thus poses little threat to judicial integrity. A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.
Id.
(quoting
New Hampshire,
The first factor is met because Cynosure’s position in the instant action is clearly inconsistent with its position in the Prior Action that it “is subject to the jurisdiction and venue of this [cjourt.” Prior Action Third-Party Complaint at ¶ 2; Pri- or Action Answer at ¶ 2. However, the second factor is not met because Cynosure did not “succeed[ ] in persuading [the] court to accept [its] earlier position[.]”
Stallings,
b. Forum selection clauses in Lease and Guaranty
Singh alleges that Cynosure is “subject to the jurisdiction ... of this [cjourt via the Iowa forum selection clause in the [Lease] and Guaranty by virtue of its closely related and inextricably intertwined conduct regarding the solicitation and procurement of the signatures of [Singh] on the [Lease] and Guaranty[.]” Amended Third-Party Complaint at ¶ 4. Singh contends that, at the May 20, 2008 meeting, “Denkman was acting on behalf of and in concert with [VGM].”
Id.
at ¶ 16. More specifically, Singh argues that “Denkman solicited [Singh] into signing the [Lease] and Guaranty, and obtained the signed documents after signing and ensured their delivery to VGM.” Resistance at 19. According to Singh, “Cynosure’s extensive involvement in the transaction under litigation herein demonstrates that Cynosure is ‘inextricably intertwined’ with the transaction at issue and accordingly should be bound by the Iowa forum selection clause contained in the [Lease] and Guaranty.”
Id.
at 20 (quoting
Vessel
Parties that are non-signatories to an agreement that contains a forum selection clause may nonetheless be bound by the forum selection clause.
See Vessel Sys., Inc.,
In
Maraño,
the Eighth Circuit Court of Appeals held that an individual plaintiff, who was a shareholder, officer and director of the plaintiff corporation, was bound by the forum selection clause in the corporation’s agreement with the defendant.
Hugel
involved an agreement between plaintiff Dieter Hugel and defendant Lloyd’s.
Singh argues that Cynosure “indisputably had notice” of the forum selection clause in the Lease and Guaranty because Denkman “collected” the documents from Singh “for delivery to [VGM.]” Resistance at 17. However, Denkman averred that he merely “forwarded the Lease and Guaranty to MedCap Financial” at Singh’s direction. Denkman Aff. at ¶ 12. Denkman further averred that he “did not contact VGM or its employees while working with Dr. Singh on her purchase.” Id. at ¶ 14. Singh sets forth no evidence to controvert Denkman’s recitation of the transaction. Denkman’s mere handling of the Lease and Guaranty at the May 20, 2008 meeting, and subsequent delivery to MedCap Financial (or even VGM), is insufficient to bind Cynosure to the Iowa forum selection clause. In short, the court finds that it was simply unforeseeable to Cynosure that it would be bound by the forum selection clauses contained in the Lease and Guaranty between Singh and VGM.
c. Cynosure’s contacts with Iowa
Singh alleges that Cynosure “has engaged in general and continuous contacts with the State of Iowa, including but not limited to the solicitation and sale of various medical equipment to Iowa medical service providers.” Amended Third-Party Complaint at ¶ 3. In other words, Singh contends that the basis for personal jurisdiction over Cynosure is general jurisdiction. 3
Cynosure does not have an office in Iowa. Cynosure does not have a telephone number or bank account in Iowa. It has no employees, representatives or agents in Iowa. Cynosure has engaged in sales or service transactions with Iowa residents. Specifically, Cynosure invoiced Iowa customers for $24,278.75 in 2004, $26,680.40 in 2005, $290,680.40 in 2006 and $430,495.84 in 2007. Some of these sales “involve simple shipments of spare parts to the state at a customer’s request and others may involve the repair of Cynosure products in the state.” Cynosure’s Response to Singh’s Request for Production of Documents (“Cynosure RPD Responses”) (docket no. 50-5), at ¶ 46.
In 2008, Cynosure made $9,318 in direct sales to Iowa customers. In 2009, Cynosure made $14,927 in direct sales to Iowa customers. Cynosure’s direct sales to Iowa customers in 2008 and 2009 represent “the sale of only spare parts sent at the request of Iowa users.” Affidavit of Timothy Baker (“Baker Aff.”) (docket no. 25-1 at 16-17), at ¶ 3. Cynosure did not make any direct sales of its “laser units” to Iowa users in 2008 or 2009. Id.
Cynosure also lists on its website the contact information of six Iowa medical practitioners that use Cynosure products. 4 The list is available through the “Practitioner Locator” function on Cynosure’s website. Exhibit A (docket no. 17-2), at 1-4.
Cynosure has also engaged in financing transactions with VGM, an Iowa resident. Specifically, since January 2007, Cynosure has received payments from VGM in excess of $42 million relating to VGM-financed purchases of Cynosure equipment,
i. VGM-ñnanced transactions
The parties vigorously dispute the impact of Cynosure’s dealings with VGM on the question of general jurisdiction. Cynosure contends that the $42 million of “VGM-financed transactions are irrelevant to personal jurisdiction analysis” because “[VGM] and Cynosure are separate unrelated companies with no agreement for financing of Cynosure customers.” Surreply at 2-3. In other words, Cynosure insists that “the customer makes the decision on how to pay and who will finance” and an “independent clearinghouse, 5 which has no contract with Cynosure, provides those options.” Id. at 3. As such, Cynosure argues that the “raw dollar value of financing funds Cynosure has received from VGM since 2007” has no bearing on whether Cynosure itself has “substantial contact with Iowa.” Id. at 2.
Singh sets forth no evidence to contradict Cynosure’s description of its involvement with its customers’ financing arrangements. That is, if a customer requests third-party financing, Cynosure submits a request to MedCap Financial, who in turn locates an entity willing to finance the transaction, who in turn executes a lease with the customer. Although Singh refers several times to Cynosure’s transactions with VGM as “sales” to VGM, it is undisputed that the transactions relate exclusively to Cynosure equipment that is used by Cynosure’s customers — primarily medical providers in various states — and not by VGM. In other words, even if Cynosure ultimately receives payment for certain equipment from VGM, these payments relate solely to transactions brokered by Cynosure and its customers.
The court finds that Cynosure’s receipt of funds from VGM, an Iowa resident, is not sufficient to support a finding of general jurisdiction. In assessing whether a nonresident defendant should reasonably anticipate being haled into court in the forum state, it is essential that “ ‘there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the fo
The Supreme Court addressed this issue in
Helicópteros,
where it considered whether a nonresident defendant was subject to general jurisdiction in Texas based, in part, upon its receipt of more than $5 million in payments from the Texas bank account of a Texas joint venture.
Despite Cynosure’s receipt of significant funds from Iowa resident VGM, Singh sets forth no evidence that such receipt is “the result of [Cynosure’s] purposeful availment.” 16
Moore’s Federal Practice,
§ 108.42[3][b][i]. Rather, the record reflects that Cynosure deals primarily, if not exclusively, with their customers — the end-users of its products.
6
Any financing arrangements are handled by the customer and various third parties, including Med-Cap Financial and entities such as VGM. “Such unilateral activity of another party or a third person is not an appropriate consideration when determining whether a defendant has sufficient contacts with a forum State to justify an assertion of jurisdiction.” Helic
opteros,
ii. Cynosure’s website
Singh asserts that Cynosure’s website should render it subject to general jurisdiction in Iowa. In
Lakin v. Prudential Sec., Inc.,
the Eighth Circuit Court of Appeals addressed the issue of whether a website may provide sufficient contacts to invoke general jurisdiction.
At one of the spectrum are situations where a defendant clearly does business over the Internet. If the defendant enters into contracts with residents of a foreign jurisdiction that involve knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper. At the opposite end are situations where a defendant has simply posted information on an Internet [website] which is accessible to users in foreign jurisdictions. A passive [website] that does little more than make information available to those who are interested in it is not grounds for the exercise of personal jurisdiction. The middle ground is occupied by interactive [websites] where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the [website].
Id.
The Eighth Circuit Court of Appeals agreed that “the
Zippo
model is an appropriate approach in cases of specific jurisdiction — i.e., ones in which we need only find ‘minimum contacts.’ ”
Lakin,
Ultimately, the Eighth Circuit Court of Appeals found that the Zippo test was just the starting point in assessing a website’s impact on general jurisdiction analysis. In addition to the nature and quality of a website (as captured by the Zippo test), the Eighth Circuit Court of Appeals held that it was also necessary to weigh the quantity of the defendant’s contacts via its website. See Id. (“[W]e will first apply the Zippo test and then also look at the quantity of those contacts with [forum state] residents.”). Thus, under Lakin, “a consideration of the ‘nature and quality’ of a Web site and a determination of whether is ‘interactive,’ ‘does business,’ or is merely ‘passive’ is an important factor in our analysis.” Id. at 711. The court must then “look at the quantity of [the defendant’s] contacts with [forum state] residents” via its website. Id.
Singh argues that “Cynosure has engaged in substantial and ongoing contacts with the State of Iowa ... [by] maintaining a provider list of Iowa-situated doctors associated with Cynosure on their website for public viewing.”
7
Resistance at 4.
The court finds that Cynosure’s website falls within the “passive” category of
Zippo’s
“sliding scale.” That is, it is “ ‘[a] passive [website] that does little more than make information available to those who are interested in it[.]’ ”
Lakin,
The court also finds that the quantity of Cynosure’s contacts with Iowa residents via its website does not support a finding of general jurisdiction. There is no evidence that
any
Iowa residents have visited' Cynosure’s website, much less contacted Cynosure through its website to order its products or even inquire about them.
Cf. Lakin,
iii. Remaining contacts with Iowa
The remainder of Cynosure’s contacts with Iowa pertain to its sales to Iowa residents from 2004 to 2009 and related phone calls, mailings or travel into Iowa. In 2004, Cynosure invoiced four Iowa customers for five transactions totaling $24,278.75. Cynosure RPD Responses at Ex. E. In 2005, Cynosure invoiced two
After considering the appropriate factors, the court finds that Cynosure has insufficient contacts with Iowa to be subject to personal jurisdiction in this state. The nature and quality of Cynosure’s contacts with Iowa do not support a finding of personal jurisdiction. Singh does not dispute that Cynosure’s sales to Iowa residents in 2008 and 2009 “represent the sale of only spare parts sent at the request of Iowa users.” Baker Aff. at ¶ 3. Nor does Singh dispute that Cynosure has made “no direct sales of its laser units to Iowa users in either 2008 or 2009.”
Id.
While Cynosure acknowledges that it “may have” traveled to Iowa in connection with its sales to Iowa residents between 2004 and 2009, the only evidence Singh sets forth of Cynosure’s actual physical contact with the state of Iowa is Cynosure’s admission that, since March 2008, its repair employees traveled to Iowa on
two
occasions for “service calls.” Cynosure RPD Responses at ¶ 46. These contacts are insufficient to establish personal jurisdiction over Cynosure.
See Austad Co. v. Pennie & Edmonds,
The quantity of Cynosure’s contacts also weighs against the exercise of personal jurisdiction. The record reveals that Cynosure dealt with a total of fifteen Iowa customers in the previous six years. In
Iowa also has little interest in providing a forum for either Singh or Cynosure, as neither are Iowa residents. It would likely be more convenient for Singh to litigate its claims against Cynosure in Iowa because Singh is already defending against YGM’s claims in this court. However, any inconvenience to Singh is insufficient to overcome the factors discussed above.
d. Conclusion
The court finds that Cynosure is not subject to personal jurisdiction in Iowa. Accordingly, the court shall grant the Motion to the extent it seeks Cynosure’s dismissal for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2).
B. Venue
In light of the court’s finding that Cynosure is not subject to personal jurisdiction in Iowa, the court need not address Cynosure’s argument that venue is improper due to the Massachusetts forum selection clause in the Second Purchase Agreement.
VII. CONCLUSION
The Motion (docket no. 25) is GRANTED. Third-Party Defendant Cynosure, Inc. is DISMISSED from the instant action.
IT IS SO ORDERED.
Notes
. VGM’s description of the transaction is largely the same. According to VGM, "[t]he customary practice for transactions involving Cynosure Equipment was for [VGM] to forward the contract documents (including lease agreements and guaranties) to MedCap Financial.” VGM Interrogatory Responses (docket no. 50-2), at ¶ 6. VGM "believes that MedCap then forwarded the documents to the Cynosure sales representative assigned to the Customer account.” Id. "After [Singh] executed the documents, the sales representative would then forward the documents back to MedCap, which would then forward them back to VGM.” Id.
. The court notes that the Eighth Circuit Court of Appeals held that, even where a prior action was dismissed without prejudice, " 'an
issue
actually decided in a non-merits dismissal is given preclusive effect in a subsequent action between the same parties[.]' ”
Miller v. Morris,
. Although Singh does not argue otherwise, the court notes that specific jurisdiction does not exist in the instant action. Singh’s claims against Cynosure arise out of Cynosure’s alleged misrepresentations in Georgia, where Cynosure agents engaged in sales discussions with Singh, (allegedly) obtained Singh’s signature and trained Singh on the use of the Equipment. In short, none of Singh’s claims against Cynosure relate to contacts of either Singh or Cynosure with Iowa.
. Singh repeatedly refers to the listing of Iowa practitioner’s on Cynosure's website as Cynosure’s "Iowa provider network.” See Resistance at 11, 14, 15. However, it appears this is a term coined by Singh. Other than in Singh's briefing, the term does not appear in the record.
. The court understands this "independent clearinghouse” to be MedCap Financial.
. For example, Singh sets forth no evidence to controvert Denkman’s assertion that he “did not contact VGM or its employees while working with [Singh] on her purchase.” Denkman Aff. at ¶ 14. Singh also sets forth no evidence to controvert Cynosure's claim that it directed Singh’s request for financing to MedCap Financial, which in turn located VGM.
. Singh argues that Cynosure "built and maintains a Cynosure provider network in Iowa[.]” Resistance at 11. Singh also contends that Cynosure is "actively maintaining its provider network in Iowa[J"
Id.
The only evidence Singh sets forth in support of these arguments is Cynosure Vice President Timothy Baker’s averment that "Cynosure lists certain individuals and entities on the 'Practitioner Locator’ section of its website. It does not receive ongoing remuneration for doing so.” Baker Aff. at ¶ 4. The court disagrees that this acknowledgment supports the arguments that Cynosure is “actively maintaining” or "build[ing] and servicing]” a “provider network” in Iowa. Singh provides no evidence that Cynosure’s involvement with the list of Iowa medical providers on its website
. Singh implicitly acknowledges the passive nature of Cynosure’s website vis-a-vis Iowa residents. See Resistance at 4 (stating that Cynosure maintains a list of "Iowa-situated doctors” "for public viewing”); Supp. Resistance at 6 ("[A] list of Iowa medical professionals that use Cynosure equipment is available for viewing.”) (emphasis added); Id. ("Cynosure admits that at least six different Iowa businesses are listed on their website www.cynosure.com”) (emphasis added).
. Although Singh does not raise the issue, the court notes that Cynosure’s website apparently allows customers to contact Cynosure. This much is clear from Denkman's averment that he began sales discussions with Singh after she expressed interest in the Equipment "on Cynosure's web site, at www.cynosure. com.” Denkman Aff. at ¶ 2. This does not change the court’s conclusion.
See
16
Moore's Federal Practice
§ 108.44[3] (“As courts have noted, it is now common for businesses of all types to have an internet website, typically with interactive capability through which customers can communicate with the business and order products. If general jurisdiction were to be predicated on these types of contacts alone, most businesses would be subject to personal jurisdiction in every forum.”);
Bell v. Imperial Palace Hotel/Casino, Inc.,