MEMORANDUM OPINION AND ORDER
This matter is before the Court on motions to dismiss filed by defendant Gene Gabus, (Doc. 10), and defendants Valor Motor Company, Noble Automotive Group, and Robert Smith. (Doc. 14.) The plaintiff asserts several claims arising under the trademark laws of the United States based on allegations that the defendants used or are responsible for the use by others of the plaintiffs trademark “Vision
BACKGROUND
When a court’s exercise of personal jurisdiction is challenged pursuant to a Rule 12(b)(2) motion, the plaintiff must prove the existence of a ground for jurisdiction by a preponderance of the evidence. See Combs v. Bakker,
Although the standard may be lenient, the Court need not “credit conclusory allegations or draw farfetched inferences.” Masselli & Lane, PC v. Miller & Schuh, PA,
The allegations of the complaint are taken as true only if they are not controverted by evidence from the defendant. See Wolf v. Richmond Cnty. Hosp. Auth.,
The complaint, with few exceptions, groups the defendants together and is not specific about the activities or actions of any particular defendant. The only allegation in the complaint concerning the activities of any defendant or of the defendants as a group in or directed towards North Carolina reads, in its entirety: “Defendants caused tortuous [sic] injury in the [Middle District of North Carolina] by acts or omissions outside the district, while regularly doing or soliciting business in the State of North Carolina, pursuant to N.C. GEN. STAT. § 1-75.4.” (Doc. 1 at ¶3.)
The defendants have come forward with specific and detailed evidence concerning the nature and extent of their contacts with North Carolina. (See generally Doc. 11-1; Doc. 15-1; Doc. 20-1; Docs. 26-1 to 26-3.) The plaintiff has responded with affidavits concerning website content and with copies of news articles and website pages, which the Court will consider. (Docs. 18-1 to 18-7, 24-1 to 24-7.) The Court views the evidence in the light most favorable to the plaintiff, but notes that these materials do not contradict the defendants’ evidence in any substantial or material way. See Combs,
1. The Vision Company
The Vision Company was incorporated in Delaware in 2012. (Doc. 15-1 at ¶ 2.) It was a business originally organized to market compressed natural gas (“CNG”) vehicles. (Doc. 15-1 at ¶ 18.) In January 2012, it “reserved its name in South Carolina,” established a domain registration for www.visionmotorcompany.com, and designed a webpage at that site. (Doc. 15-1 at ¶¶ 19-20.) The website contained contact information for defendant Smith and defendant Gabus. (Doc. 24-1 at 3.) It stated that the Vision Company “will soon offer” CNG vehicles for sale, (Doc. 24-1 at 2), and included “links to view videos of cars and safety videos, a dealership inquiry form, and links to allow the viewer to view current natural gas. prices.” (Doc. 24 at ¶ 3.) On its website, the Vision Company was identified as a “division” and “Wholly. Owned Subsidiary” of defendant Noble. (Doc. 18-1 at 3-4.) The website listed Gabus Automotive Distributors, Inc., as the “Central, East & West Coast Distributor.” (Id. at 3.) This statement was followed by a list of 39 states that included North Carolina. (Id. at 3.) Another entity was listed as the distributor for the northeast. (Id.)
The Vision Company ceased operations in August 2012 and never sold any vehicles. (Doc. 15-1 at ¶¶ 21-22.) It is not a defendant in this case. It has no offices, real property, bank accounts, telephone numbers, or employees in North Carolina, nor does it have an agent for service of process in North Carolina. (Id. at ¶¶ 6-12.) It did not and does not advertise in any print, television, or radio outlets in or directed to North Carolina and it has not exhibited any products at any trade shows in North Carolina. (Id. at ¶¶ 13-14.)
2. Valor
Beginning in approximately June 2012, visitors to www.visionmotorcompany.com were redirected to the internet home page of defendant Valor. (Doc. 1 at ¶ 25.) Val- or was incorporated in Delaware on September 20, 2012, and has its only place of business in South Carolina. (Doc. 15-1 at ¶¶ 23, 30; see Doc. 1 at ¶ 6.) Valor does not and did not own the Vision Company. (Doc. 15-1 at ¶ 24.) Valor has no offices, real property, bank accounts, telephone numbers, or employees in North Carolina, nor does it have an agent for service of process in North Carolina. (Id. at ¶ 31.) It does not advertise in any print, television or radio outlets in or directed to
3.Noble
Noble was identified on the Vision Company’s website as the owner of the Vision Company. (Doc 18-1 at 4.) It applied for a trademark on the word ‘Vision” for compressed natural gas vehicles, which was denied on April 4, 2012, because of potential confusion with two other marks, including plaintiffs mark. (Doc. 24-7 at 1-2.)
Noble is a corporation organized under Georgia law with its principal office in South Carolina. (Doc. 15-1 at ¶¶ 36-38; see Doc. 1 at ¶ 7.) It is not registered to do business in North Carolina and has no offices, real property, bank accounts, telephone numbers, or employees in North Carolina. (Doc. 15-1 at ¶¶ 37, 39.) It does not design, manufacture, or advertise its products in North Carolina and does not solicit business in North Carolina. (Id. at ¶¶ 40-41.) It does not sell or .ship any products to North Carolina customers and does not have an agent for service of process in North Carolina. (Id. at ¶¶ 42-43.) It does not advertise in any print, television, or radio outlets in or directed to North Carolina, and it has not exhibited any products at any trade shows in North Carolina. (Id. at ¶¶ 45-46.) Noble never engaged in any transactions with the plaintiff. (Id. at ¶ 50.)
4. Robert Smith
Mr. Smith is an officer of both Valor and Noble and was an officer of the Vision Company. (Id. at ¶¶ 2-M.) He is a citizen and resident of South Carolina. (Id. at ¶ 5.) He does not regularly do or solicit business in North Carolina, does not have any office or phone numbers in North Carolina, does not own any real property in North Carolina or have any bank accounts in North Carolina, does not have any employees or an agent for service of process in North Carolina, does not advertise in any print, television, or radio outlets in or directed to North Carolina, and has not exhibited any products at any trade shows in North Carolina. (Id. at ¶¶ 6-14.) He has never travelled to North Carolina in connection with the business of the Vision Company, Valor, or Noble and has not sold any vehicles on behalf of the Vision Company, Valor, or Noble in North Carolina or any other state. (Id. at ¶¶ 15-16.) On the website of the Vision Company, someone named Bob Smith was referenced as a contact for the Vision Company. (Doc. 18-1 at 3-4.)
5. Gene Gabus
Mr. Gabus is a citizen and resident of Iowa. (Doc. 11-1 at ¶2.) Mr. Gabus was identified by name on the Vision Company’s website as connected with Gabus Automotive Distributors, Inc., which was identified on the website as the Vision Company’s North Carolina distributor. (Doc. 18-1 at 3.) Mr. Gabus is an officer and director of Gabus Automotive Distributors. (Doc. 18-4 at 2.) He is not an
Mr. Gabus does not regularly do or solicit business in North Carolina, does not have any office or phone numbers in North Carolina, does not own any real property in North Carolina or have any bank accounts in North Carolina, does not have any employees or an agent for service of process in North Carolina, does not advertise in any print, television, or radio outlets in or directed to North Carolina, and has not exhibited any products at any trade shows in North Carolina. (Doc. 11-1 at ¶¶ 3-13.) He has never travelled to North Carolina in connection with the business of the Vision Company, Valor, or Noble and has not sold any vehicles on behalf of the Vision Company, Valor, or Noble in North Carolina or any other state. (Id. at ¶¶ 17-18.) He has never engaged in any transactions with plaintiff. (Id. at ¶ 26.) Neither he nor Gabus Automotive Distributors has ever sold any cars for Noble in North Carolina or anywhere else. (Doc. 22 at ¶¶ 3, 5.)
An entity denominated as ‘Vision Motor Company” with a Des Moines, Iowa, address had a web page at www.visionmotor companyofdesmoines.com on August 22, 2013, which contained material about CNG vehicles. (Doc. 18-6 at 1-3.) The street address on the web page was the same as for Gabus Automotive Distributors. (See Doc. 18-4 at 2; Doc. 18-6 at 1.) Gabus Automotive Distributors established the website in April 2012, before the Vision Company abandoned the “Vision” mark and adopted ‘Valor.” (Doc. 22 at ¶ 6.) The website sought to promote the sale of CNG vehicles, but those vehicles were not present in the United States. (Id.) No inquiries, solicitations, or orders ever came through the site. (Id.)
ANALYSIS
The allegations of the complaint do not provide a basis for personal jurisdiction of any defendant. The allegations are conclusory and make few specific factual assertions as to any particular defendant’s contacts with North Carolina. These conclusory allegations need not be considered. See Masselli & Lane,
A district court has personal jurisdiction over a non-resident defendant when two conditions are satisfied: “First, the exercise of jurisdiction must be authorized by the long-arm statute of the forum state, and, second, the exercise of personal jurisdiction must also comport with Fourteenth Amendment due process requirements.” Christian Sci. Bd. of Dirs. v. Nolan,
1. North Carolina’s Long-Arm, Statute
The plaintiff appears to rely on Section l-75.4(4)(a) of North Carolina’s long-arm statute to satisfy the first condition required for asserting personal jurisdiction over non-resident defendants. This section provides:
A court of this State ... has jurisdiction over a person ... under any of the following circumstances:
(4) Local Injury; Foreign Act. — In any action ... claiming injury to person or property within this State arising out of an act or omission outside this State by the defendant, provided in addition that at or about the time of the injury ...:
a. Solicitation or services activities were carried on within this State by or on behalf of the defendant.
N.C. Gen.Stat. § l-75.4(4)(a). This provision requires the plaintiff to demonstrate: “1) an action claiming injury to a North Carolina person or property; 2) that the alleged injury arose from activities by the defendant outside of North Carolina; and 3) that the defendant was engaging in solicitation or services within North Carolina at or about the time of the injury.” Fran’s Pecans,
The defendants contend the plaintiffs action is not authorized by the long-arm statute because they were not engaging in solicitation or services in North Carolina at or about the time of the plaintiffs injury. (Doc. 20 at 1; Doc. 26 at 1-2.) Indeed, the defendants contend they have not done any business or had any contacts with North Carolina related to this action. (Doc. 20 at 1; Doc. 26 at 1-2.)
Unlike cases where the solicitation or services prong was satisfied, the plaintiff offers no evidence of any sales, visits, or phone calls related to the action by the defendants to North Carolina. See, e.g., Fran’s Pecans,
Absent any evidence that any defendant was engaged in solicitation or services activities at any point in North Carolina, the plaintiffs action is not authorized by North Carolina’s long-arm statute. Therefore, the Court lacks personal jurisdiction over the defendants and the action will be dismissed.
In the alternative, the Court finds that asserting personal jurisdiction over the defendants would not comport with due process. Before finding personal jurisdiction over the defendants, the Court must determine “whether [each] defendant has such ‘minimal contacts’ with the forum state that ‘maintenance of the suit does not offend traditional notions of fair play and substantial justice.’ ” Christian Sci. Bd. of Dirs.,
Opinions since International Shoe “have differentiated between general or all-purpose jurisdiction, and specific or case-linked jurisdiction.” Goodyear Dunlop Tires Operations, S.A. v. Brown, — U.S. —,—,
The plaintiff contends that the Court has jurisdiction over each defendant because each defendant “acted intentionally to cause harm to Plaintiffs (a North Carolina resident) legally protected interest, knowing that the conduct would cause harm at the Plaintiffs domicile to his property interest there.” (Doc. 16 at 1 (regarding defendant Gabus); Doc. 23 at 1 (regarding defendants Valor, Noble, and Smith).) While not completely clear, it appears the plaintiff is arguing that the Court has specific jurisdiction over each defendant. Out of an abundance of caution, the Court will address both general and specific jurisdiction.
A. General Jurisdiction
“To establish general jurisdiction over the defendant, the defendant’s activities in the State must have been continuous and systematic, a more demanding standard than is necessary for establishing specific jurisdiction.” ALS Scan, Inc. v. Digital Serv. Consultants, Inc.,
No defendant has an office, employees, or agents in North Carolina. No defendant owns property in the state or has a business relationship with the plaintiff. No defendant has made any sale in North
B. Specific Jurisdiction
Specific jurisdiction exists when the “suit aris[es] out of or [is] related to the defendant’s contacts with the forum.” Helicopteros Nacionales de Colombia, S.A. v. Hall,
While the analysis is not a mechanical one, the Fourth Circuit has summarized the factors the courts have considered in deciding whether a defendant “purposefully availed” itself of the privilege of doing business in a state. Id. Those factors include:
• whether the defendant maintains offices or agents in the forum state;
• whether the defendant owns property in the forum state;
• whether the defendant reached into the forum state to solicit or initiate 'business;
• whether the defendant deliberately engaged in significant or long-term business activities in the forum state;
• whether the parties contractually agreed that the law of the forum state would govern disputes;
• whether the defendant made in-person contact with the resident of the forum in the forum state regarding the business relationship;
• the nature, quality and extent of the parties’ communications about the business being transacted; and
• whether the performance of contractual duties was to occur within the forum.
Id. at 278 (internal citations omitted).
The only factor that the plaintiff points to in support of its claim of jurisdiction is that each defendant either reached into North Carolina to solicit or initiate business via an internet site, or is responsible for some other defendant’s conduct reaching into the state. {See Doc. 16 at 8-10; Doc. 23 at 11-12.) The plaintiff has offered no evidence or made any argument that any of the other factors weigh in its favor, and the defendants’ uncontradicted evidence establishes that none of the defendants maintain offices or agents in North Carolina, own property in the forum state, or deliberately engaged in significant or long-term business activities in the forum state. The defendants’ evidence further establishes without contradiction that no defendant had any contractual agreements with the North Carolina plaintiff, made any in-person contact with the plaintiff, or had any communications with the plaintiff.
a State may, consistent with due process, exercise judicial power over a person outside of the State when that person (1) directs electronic activity into the State, (2) with the manifested intent of engaging in business or other interactions within the State, and (3) that activity creates, in a person within the State, a potential cause of action cognizable in the State’s courts.
ALS Scan,
In Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc.,
The court held that whether the defendant intended to target the forum state “can be determined only from the character of the website at issue.” Id. at 400. The relevant factors are the level of interactivity of the website, whether the website has a commercial nature, whether there were any online exchanges between the defendant and forum state residents, and whether the overall content of the website is local or targeted to the forum state audience. Id. at 400-01. The court acknowledged that the location of the plaintiffs injury was relevant, but held that it “must ultimately be accompanied by the defendant’s own sufficient minimum contacts with the state.” Id. at 401 (quoting Young v. New Haven Advocate,
The plaintiff contends this Court can exercise specific jurisdiction over defendants because they launched semi-interactive websites, these websites and other articles mention North Carolina in the context of franchises and a tax credit, and these activities involved trademark violations. (Doc. 16 at 9-10; Doc. 23 at 11-12.) Thus, the plaintiff contends, it has satisfied the three prongs of ALS Scan and has established a prima facie case to support jurisdiction.
First, the Vision Company does not have sufficient contacts to be brought into court in North Carolina, so its contacts are insufficient to provide a basis for jurisdiction over a person or entity who might have derivative liability. See Saudi
Second, the plaintiff has offered no evidence to support a principal/agency relationship and no evidence to support any reason to pierce the Vision Company’s corporate veil. In the absence of such evidence, or even allegations, personal jurisdiction cannot be premised on derivative liability. See Saudi
In the absence of derivative liability, specific jurisdiction can exist only if a defendant committed some act in or directed towards the forum state that gives rise to the cause of action. See ALS Scan,
As to the defendant Valor, there is some evidence that visitors to the www. visionmotorcompany.com website began rolling over to the Valor website. Yet there is still no evidence that Valor had the “manifest intent” of targeting people in North Carolina. Valor’s website does not show any particular focus on North Carolina, and there have been no transactions or even inquiries with anyone from North Carolina through the website or as a result of the website. Plaintiff points to a blog entry on Valor’s website that mentions a North Carolina tax credit for natural gas vehicles. However, this single sentence is one example in a broader discussion of financial incentives for natural gas vehicles in the United States. This is far less than the targeting seen in Young, where the news articles focused on the Virginia prison and one article mentioned the allegedly defamed warden by name, and yet even there the Fourth Circuit did not find sufficient intent to target the forum state.
There is no evidence that Valor, through its website, manifested an intent to target North Carolina. Because the plaintiff cannot satisfy ALS Scan, the Court finds that it does not have personal jurisdiction over defendant Valor.
Because no defendant purposefully availed itself of the benefits and privileges of the forum state and because the trademark cause of action does not arise out of any defendant’s activities directed at North Carolina, the Court does not have specific jurisdiction over any defendant. Under the circumstances of this case, the exercise of personal jurisdiction over the defendants would be constitutionally unreasonable, considering the burdens on and interests of the parties. See Consulting Eng’rs Corp.,
It is ORDERED that Defendants’ Motions to Dismiss for Lack of Jurisdiction, (Docs. 10,14), are GRANTED.
Notes
. To distinguish between the plaintiff, Vision Motor Cars, and an entity associated with the defendants, Vision Motor Company, the Court will refer to the plaintiff as "Vision Motor Cars” or "the plaintiff,” and the entity associated with defendants as "the Vision Company.”
. The plaintiff alleges that Mr. Gabus is an officer or manager of Noble, (Doc. 1 at ¶ 9), but has not come forward with any evidence to that effect.