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finding that "merely operating a commercially interactive web site" is not enough for personal jurisdiction where there was no evidence of actual sales or emails, even though forum state was available as mailing address on dropdown list along with 49 other states
Summary of this case from Tempur-Pedic International, Inc. v. Go Satellite Inc.Opinion
C.A. No. 03-090ML
August 25, 2003
REPORT AND RECOMMENDATION
Now before this Court is Euro Optics, Inc.'s ("Euro Optics") motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(2) (lack of jurisdiction over the person) and (3) (improper venue). Also before this Court is Swarovski Optik North America Limited's ("SONA") motion to strike Euro Optics' motion to dismiss, corresponding memorandum of law, and the affidavit of Alexander Roy, III. Plaintiff SONA has brought various federal and state claims for unfair competition, trademark infringement and dilution, trade name dilution, and tortious interference with prospective economic advantage. SONA's motion to strike was referred to a magistrate judge for determination. Euro Optics' motion to dismiss was referred for preliminary review, findings, and recommended disposition. 28 U.S.C. § 636(b)(1)(A) (B); Local Rule of Court 32(c). A hearing was held on August 7, 2003. After examining the memoranda submitted, listening to the arguments of counsel and conducting my own independent research, I recommend that defendant's motion to dismiss be granted pursuant to Fed.R.Civ.P. 12(b)(2). I also reserve decision on the motion to strike should it be necessary to address after the District Court has acted upon this Report and Recommendation.
Procedural History
On March 13, 2003, SONA filed its complaint. On May 20, 2003, Euro Optics filed a motion to dismiss as its first responsive pleading, accompanied by a supporting memorandum of law and the affidavit of Alexander Roy, III. On June 2, 2003, SONA filed an objection to Euro Optics' motion to dismiss, a supporting memorandum of law, and several supporting affidavits. Also on June 2, 2003, SONA filed a motion to strike Euro Optics' motion to dismiss, supporting memorandum of law, and the affidavit of Alexander Roy, III. Notably, Euro Optics did not file a response to SONA's motion to strike. Facts
SONA is a Rhode Island-based seller of high quality optical glass products, including binoculars, rifle scopes, observation telescopes, night vision scopes, and range finders. SONA sells its products in interstate commerce under the trademarks "Swarovski Optik," "Swarobright," and "Kahles."
Euro Optics is a Pennsylvania corporation with its principal and only place of business located in Pennsylvania. Euro Optics resells high quality optical glass products from several manufacturers, including SONA. Euro Optics, however, is not an authorized SONA dealer and proclaims on its web site that it obtains its products from European distributors.
It is undisputed that Euro Optics has no real estate, offices, or employees in Rhode Island. Further, no employee or agent of Euro Optics has ever visited Rhode Island. In fact, at the time of this writing, Euro Optics has never knowingly made a sale in Rhode Island or to a Rhode Island resident that could be used to support personal jurisdiction. What Euro Optics does have, however, is a web site, eurooptic.com, which can be accessed from any computer in the world that is connected to the Internet. Notably, only residents of the United States can actually purchase products from Euro Optics' web site because the online order form only allows purchasers to choose a United States location, but not the District of Columbia, as a delivery address. In summary, Euro Optics has no connections with Rhode Island except a web site that can be accessed by Rhode Island residents, and through which Rhode Islanders "could" purchase products.
At one point, plaintiff's counsel ordered a product from Euro Optics' web site, although he never received it due to providing a fictional Rhode Island address. Plaintiff's counsel's "order," however, cannot be used to support personal jurisdiction. See infra at 11-12.
I. Motion to Strike
Plaintiff moves this Court to strike Euro Optics' motion to dismiss and its corresponding pleadings for being filed out of time. In particular, plaintiff alleges that defendant filed its first responsive pleading, its motion to dismiss, approximately one month late. Further, defendant neglected to file a response to plaintiff's motion to strike.
While this Court in no way condones Euro Optics' apparently dilatory actions, the Court will reserve decision on plaintiff's motion to strike at this time for several reasons. First, the case should be disposed of on the merits of the Fed.R.Civ.P. 12(b)(2) motion, a policy generally favored by the First Circuit. See United States v. One 1987 BMW 325, 985 F.2d 655, 658 (1st Cir. 1993) (noting a strong policy favoring the disposition of cases on the merits). Second, the parties discussed some type of agreement to extend the time to answer the complaint or file responsive motions, although they dispute the terms of that agreement. Third, SONA was not terribly pro-active in counteracting Euro Optics' alleged delinquency. For example, SONA was not sitting on the court house steps on the twenty-first day after service of process waiting to file a motion for entry of default. In fact, SONA never filed a motion for entry of default. Instead, plaintiff moved to strike Euro Optics' first responsive pleading. Therefore, while this Court does not approve of Euro Optics' laggard conduct, the Court reserves decision on the motion to strike should it be necessary to decide after the District Court acts upon the Report and Recommendation.
II. Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(2)
1. Personal Jurisdiction and the Internet
This case requires the Court to explore the bounds of its ability to exercise personal jurisdiction over a company or individual on the basis of an Internet web site. See generally Richard S. Zembek,Jurisdiction and the Internet: Fundamental Fairness in the Networked World of Cyberspace, 6 Alb. L.J. Sci. Tech. 339 (1996). The Internet, which has made the exchange of information and commerce accessible from essentially any computer in the world, has forced courts "to articulate a standard that both embodies traditional rules and accounts for new factual scenarios created by the Internet." Toys "R" Us, Inc. v. Step Two. S.A., 318 F.3d 446, 451 (3d Cir. 2003).
a. Traditional Analysis
Under the traditional analysis, the burden of establishing personal jurisdiction over the defendant rests with the plaintiff. Brian Jackson Company v. Eximias Pharm. Corp., 248 F. Supp.2d 31, 34 (D.R.I. 2003) (citing Sawtelle v. Farrell, 70 F.3d 1381, 1387 (1st Cir. 1995); Donatelli v. Nat'l Hockey League, 893 F.2d 459, 463 (1st Cir. 1990)). A prima facie standard is used to determine whether personal jurisdiction is appropriate wherein the court "must accept plaintiff s (properly documented) evidentiary proffers as true for the purpose of determining the adequacy of the prima facie jurisdictional showing." Daynard v. Ness, Motley, Loadholt, Richardson Poole, P.A., 290 F.3d 42, 51 (1st Cir. 2002) (quoting Foster-Miller, Inc. v. Babcock Wilcox Canada, 46 F.3d 138, 145 (1st Cir. 1995)). These facts are taken as true whether or not disputed and are construed in the light most congenial to the plaintiff's jurisdictional claim. Id. (quoting Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 34 (1st Cir. 1998)).
Personal jurisdiction is established when (1) the forum state has a long-arm statute that purports to grant jurisdiction over the defendant and (2) exercising jurisdiction comports with the due process requirements of the Fourteenth Amendment to the United States Constitution. Daynard, 290 F.3d at 52 (citingFoster-Miller, 46 F.3d at 144). Rhode Island's long-arm statute has been interpreted to be conterminous with the constitutional limits under the Fourteenth Amendment. See Brian Jackson, 248 F. Supp.2d at 34-35 (citing Almeida v. Radovsky, 506 A.2d 1373, 1374 (R.I. 1986)). Therefore, the question is whether asserting personal jurisdiction over Euro Optics is consistent with the Due Process Clause.Id.
The Rhode Island long arm statute provides:
Every foreign corporation, every individual not a resident of this state . . . and every partnership or association, composed of any person or persons not such residents, that shall have the necessary minimum contacts with the state of Rhode Island, shall be subject to the jurisdiction of the state of Rhode Island . . . in every case not contrary to the provisions of the constitution or laws of the United States.
R.I. Gen. Laws § 9-5-33.
There are two types of personal jurisdiction, general and specific.Daynard, 290 F.3d at 51 (quoting Mass. Sch. of Law at Andover, 142 F.3d at 34). "General jurisdiction exists when the litigation is not directly founded on the defendant's forum-based contacts, but the defendant has nevertheless engaged in continuous and systematic activity, unrelated to the suit, in the forum state." United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 618 (1st Cir. 2001) (citation omitted). "Specific jurisdiction exists when there is a demonstrable nexus between a plaintiff's claims and a defendant's forum-based activities." Id. (quoting Mass. Sch. of Law at Andover, 142 F.3d at 34). To support specific personal jurisdiction, plaintiff must satisfy a tripartite formula:
First, the claim underlying the litigation must directly arise out of, or relate to, the defendant's forum-state activities. Second, the defendant's instate contacts must represent a purposeful availment of the privilege of conducting activities in the forum state, thereby invoking the benefits and protections of that state's laws and making the state's courts foreseeable. Third, the exercise of jurisdiction must, in light of the Gestalt factors, be reasonable.Brian Jackson, 248 F. Supp.2d at 35 (quotingSawtelle, 70 F.3d at 1289). In the case at bar, plaintiff conceded at oral argument that if the court has personal jurisdiction at all, it rests only on specific personal jurisdiction. This Court agrees.
b. The Internet and Personal Jurisdiction
The precise question raised by this case is whether the operation of a commercially interactive web site accessible in the forum state is sufficient alone to support specific personal jurisdiction, or whether there must be additional evidence that the defendant has purposefully availed itself of the privilege of engaging in activity in the forum state, such as actual orders being placed on the web site by residents of the forum state. In the past, courts have responded to emerging technologies in adjusting the contours of personal jurisdiction. For example, in 1958, the Supreme Court noted that "[a]s technological progress has increased the flow of commerce between States, the need for jurisdiction over nonresidents has undergone a similar increase.Hanson v. Denckla, 357 U.S. 235, 250-51 (1958). In 1985, the Supreme Court again responded to an increase in the modes of interstate commerce by observing that "it is an inescapable fact of modern commercial life that a substantial amount of business is transacted solely by mail and wire communications across state lines, thus obviating the need for physical presence within a State" for personal jurisdiction to attach. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985).
Courts have responded to personal jurisdiction in the Internet age no differently than with other emerging technologies as the traditional framework has been deftly molded to fit today's technological realities. The majority trend is to apply a slightly modified personal jurisdiction analysis examining a "sliding scale" of Internet activity that is sufficient for jurisdiction. It should be noted, however, that neither the First Circuit nor this District Court have examined the exact contours of personal jurisdiction based upon the existence of a web site, particularly when the defendant has no other contacts with the forum state.
In the recent Brian Jackson case, this District Court provided some guidance regarding jurisdiction in the Internet age. 248 F. Supp.2d 31. Brian Jackson, however, did not address jurisdiction based on a web site. Instead, that case involved Internet communications such as emails that were purposely sent to the forum state, as well as other traditional contacts such as facsimile transmissions and telephone calls. Id.
The leading decision regarding personal jurisdiction in the Internet age is Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D.Penn. 1997). Zippo established a "sliding scale" of Internet activity through which courts could determine whether a party has subjected itself to personal jurisdiction. "At one end 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 the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper."Id. at 1124. At the other end of the continuum are cases where the defendant has only established a "passive" web site which does not allow for the transmission of information between parties. Id. Instead, telephone calls or mail are necessary to contact the seller; in the case of such "passive" sites, personal jurisdiction usually does not lie. Id. The middle ground is occupied by "semi-interactive web sites, through which there have not occurred a high volume of transactions between the defendant and residents of the foreign jurisdiction, yet which do enable users to exchange information with the host computer." Carefirst of Md., Inc. v. Carefirst Pregnancy Centers, Inc., 334 F.3d 390, 399 (4th Cir. 2003). In this middle ground, "the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site." Zippo, 952 F. Supp. at 1124.
Here, defendant's web site seems to sit in the middle ground; that is, its web site is capable of exchanging information with forum residents, but it has not yet done so. Therefore, the Court would need to examine "the level of interactivity and commercial nature of the exchange of information that occurs on the Web site." Id.
2. Application
To determine whether Euro Optics has subjected itself to specific personal jurisdiction in this district, the Court, as notedsupra, examines whether (a) the plaintiff's claim directly arises out of, or relates to, the defendant's forum-state activities; (b) the plaintiff purposefully availed itself of conducting activities in the forum state; and (c) the exercise of jurisdiction is reasonable in light of the Gestalt factors. Brian Jackson, 248 F. Supp.2d at 35 (quoting Sawtelle, 70 F.3d at 1389).
a. Relatedness
SONA's cause of action arises from alleged trademark infringement concerning a web site that is continuously available to Rhode Island residents and allegedly causes injury to SONA in Rhode Island. District courts in this circuit have held that trademark infringement via a continuously available Internet web site satisfies the relatedness requirement. See Cecil McBee v. Delicia Co. Ltd., 02-198, 2003 U.S. Dist. LEXIS 6123, at *10-12 (D. Me. April 14, 2003) (Magistrate Judge Report and Recommendation), aff'd, 2003 U.S. Dist. LEXIS 11708 (D. Me. July 9, 2003); Northern Light Tech., Inc. v. Northern Lights Club, 97 F. Supp.2d 96, 106 (D. Mass. 2000), aff'd on other grounds, 236 F.3d 57 (1st Cir. 2001); Hasbro, Inc. v. Clue Computing, Inc., 994 F. Supp. 34, 44 (D. Mass. 1997). In particular, the Hasbro court, by analogy, concluded that a review of the non-Internet trademark infringement case law establishes that advertising in the forum state satisfies the initial inquiry of relatedness. Hasbro, 994 F. Supp. at 42-44.
The First Circuit's opinion in Northern Lights did not address the issue of personal jurisdiction via an Internet web site.
In the case at bar, Euro Optics' web site is continuously available to Rhode Island residents and allegedly infringes SONA's trademarks by placing its trademarks and products on its web site. Therefore, under the reasoning of Cecil McBee. Northern Ligths, andHasbro, and because relatedness is a "flexible, relaxed standard," Sawtelle, 70 F.3d at 1389, this Court finds that the relatedness requirement has been met in the case at bar.
b. Purposeful Availment
The touchstone of the purposeful availment requirement in Internet jurisdiction cases is "the level of interactivity and commercial nature of the exchange of information that occurs on the Web site."Zippo, 952 F. Supp. at 1124. To analyze this issue, the Court will examine several decisions which provide some guidance for the case at bar.
In Cecil McBee v. Delicia Co. Ltd., a Magistrate Judge Report and Recommendation which was affirmed by the District Court in Maine, the plaintiff, Cecil McBee, a jazz musician who is a resident of Maine, sued a Japanese corporation. 2003 U.S. Dist. LEXIS 6123, at *1,aff'd, 2003 U.S. Dist. LEXIS 11708. The defendant sold women's fashions under the name "Cecil McBee" through retail shops named "Cecil McBee" in Japan. The defendant had no stores, offices, employees, etc. in the United States, and was based entirely in Japan. The defendant, however, operated a web site, www.cecilmcbee.net, which, while hosted in Japan and written almost entirely in Japanese, was accessible to United States residents, although United States residents could not buy products directly from the web site. Instead, the web site directed visitors to contact Cecil McBee stores directly to place orders. Between February 2002 and March 2003, three Maine residents visited the web site and thereafter placed orders for merchandise with Cecil McBee stores in Japan. The Japanese stores then sent the merchandise to Maine.Id. at *1-4.
The defendant in Cecil McBee argued that personal jurisdiction was lacking in the District of Maine. The court analyzed the issue under the Zippo framework. Id. at *8-9 (citingMink v. AAAA Dev. LLC, 190 F.3d 333, 336 (5th Cir. 1999) (adopting the Zippo framework for Internet jurisdiction cases)). The Cecil McBee court found that it had personal jurisdiction over the Japanese corporation because of the web site and the three sales that were made to Maine residents.
In Hasbro, Inc. v. Clue Computing, Inc., Hasbro brought suit against Clue Computing for trademark infringement of the Hasbro CLUE(r) trademark. 994 F. Supp. at 36. Hasbro alleged that Clue Computing infringed upon its CLUE(r) trademark by registering and using the web site clue.com. Id. Plaintiff was a Rhode Island corporation, with its main manufacturing plant in Massachusetts, and defendant was a Colorado corporation. Defendant also did not have any employees, offices, etc. in Massachusetts, nor had defendant ever visited or worked in Massachusetts. Therefore, defendant filed a motion to dismiss for lack of personal jurisdiction. Id.
The defendant did, however, have a passive advertising web site, which was available to Massachusetts residents and on which defendant stated that it would "go to any customers site!" Id. at 38. Further, defendant stated on its web site that it performed work for Digital Equipment Corporation ("Digital"), a Massachusetts corporation. Defendant did not work for Digital directly, or perform work for it in Massachusetts. Instead, defendant was hired by a third party to perform a training contract which the third party held with Digital. Defendant, however, knew that Digital was a Massachusetts corporation and traveled on Digital's expense account. Therefore, even though defendant did not actually perform work in Massachusetts, the court found that personal jurisdiction existed because of defendant's web site, the recognition of working for a Massachusetts corporation on its web site, and the contract with a Massachusetts corporation, although admittedly through a third party. Id. at 43-46.
In Toys "R" Us, Inc. v. Step Two, S.A., Toys "R" Us ("Toys"), a Delaware corporation, brought suit against Step Two, a Spanish corporation, for use of its web site for alleged trademark infringement. 318 F.3d at 448. Step Two did not have any stores, offices, bank accounts, employees, etc. in the United States. Step Two did, however, maintain a web site which could be accessed by United States residents. Anyone could sign up to receive emails from Step Two's web site, but only residents of Spain could order merchandise from the web site. United States residents could purchase merchandise by calling a store in Spain directly, using a phone number provided on the web site. Id. at 449-51.
The Toys "R" Us court noted that "the mere operation of a commercially active web site should not subject the operator to jurisdiction anywhere in the world." Id. at 454 (emphasis added). Instead, "there must be evidence that the defendant purposefully availed' itself of conducting activity in the forum state, by [1] directly targeting its web site to the state, [2] knowingly interacting with residents of the forum state via its web site, or [3] through sufficient other related contacts." Id. The court found that Step Two did not purposefully direct its web site to New Jersey residents because it was written almost entirely in Spanish, and because two sales that Step Two had made to New Jersey residents were insufficient. Id. at 454-55. The district court in Toys "R" Us, however, had denied the parties further jurisdictional discovery. Therefore, despite noting that the evidence adduced thus far was insufficient to support personal jurisdiction, the circuit court remanded the case to the district court for further jurisdictional discovery.
Toys identified two sales by Step Two to New Jersey residents. The residents obtained phone numbers for Step Two's stores in Spain from the web site and ordered products. Those two sales, however, were orchestrated by Toys employees or its attorneys and the court found that those contacts alone were insufficient.
In the case at bar, this Court finds that Euro Optics did not purposefully avail itself of conducting business in this forum. Theonly contact that Euro Optics has with Rhode Island is a web site that is available not only to Rhode Island residents, but to residents in every state in the Union. The fact that Rhode Island residents "can'" order products from the site, without more, is insufficient to establish purposeful availment.
The cases examined supra do not convince the Court that jurisdiction is proper here. In Cecil McBee, a web site was combined with actual sales to forum residents to support jurisdiction. In the case at bar, the only contact is theavailability of a commercially active web site. Without more, this Court finds that Euro Optics has not purposefully availed itself of the forum as did the defendant in Cecil McBee.
This Court considers Hasbro to stand at the outer reaches of when personal jurisdiction is available via Internet contacts. InHasbro, the court found jurisdiction based mainly on a passive, advertising web site on which the defendant stated he would travel anywhere and also advertised that he had performed work for a Massachusetts corporation. The defendant, however, performed the work for the Massachusetts corporation through a third party, and never actually did any work in Massachusetts. Therefore, even though extremely tenuated, non-Internet forum related activities did exist in Hasbro. The case at bar is different from Hasbro because although residents of any state can order products from Euro Optics' web site, unlike the defendant in Hasbro, Euro Optics has made no sales to or performed work associated with the forum. This Court disagrees withHasbro to any extent that it can be read to suggest that a web site which offers sales or services anywhere in the United States, without sufficiently supports personal jurisdiction anywhere in the United States.
Such a reading of Hasbro is at least arguable because the court relied heavily on the defendant's web site, and the proclamations on that web site, in finding jurisdiction.
This Court finds that the reasoning of the Third Circuit in Toys "R" Us strikes the perfect balance for when jurisdiction is proper in cases where a commercially interactive web site exists, but it has not yet interacted with residents of the forum state. In Toys "R" Us, the Third Circuit stated that the
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 [1] directly targeting its web site to the state, [2] knowingly interacting with residents of the forum state via its web site, or [3] through sufficient other related contacts.Toys "R" Us, 318 F.3d at 454 (emphasis added).
In the case at bar, Euro Optics is merely operating a commercially interactive web site. Therefore, Euro Optics should not automatically be subject to jurisdiction in every forum in the United States. See id. Instead, "there must be evidence that the defendant 'purposefully availed' itself of conducting activity in the forum state."Id. Here, Euro Optics did not purposefully avail itself of conducting business in Rhode Island under any of the exceptions noted inToys "R" Us. Id.
First, Euro Optics has not directly targeted its web site to Rhode Island by sending emails, for example, to Rhode Islanders or stating anywhere on its web site that it has a unique connection to Rhode Island.Cf. Hasbro, 994 F. Supp. at 38 (finding jurisdiction based on, inter alia, defendant's statements on its web site that it performed significant work for a resident corporation of the forum state). This Court finds that merely having Rhode Island available as a mailing address on its drop down list, along with 49 other states, is insufficient to support a contention that Euro Optics "directly target[ed] its web site" to Rhode Island. Id. To hold otherwise would subject Euro Optics to jurisdiction in every forum for the "mere operation of a commercially interactive web site." Id.
Second, Euro Optics has not "knowingly interact[ed] with residents of the forum state via its web site." Id. There is no evidence that Euro Optics ever made a sale to a Rhode Island resident or even sent an email to a Rhode Island resident. At oral argument, plaintiff's counsel noted that he placed an order, using a fabricated Rhode Island address, on defendant's web site and received a confirmation email for that order. Plaintiff's counsel never actually received the order, but he argued that the confirmation email establishes that defendant is willing to sell products to Rhode Island residents and thus has purposefully availed itself of doing business in Rhode Island.
This Court disagrees with SONA's argument for several reasons. First, SONA's counsel cannot "create" jurisdiction after the fact. See Indymac Mortg. Holdings, Inc. v. Reyad, 167 F. Supp.2d 222, 232 (S.D.N.Y. 2001) (citation omitted) ("It is well established that [personal] jurisdiction is to be determined by examining the conduct of the defendants as of the time of service of the complaint."). Cf. Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 830 (1989) (noting that for determining diversity of citizenship, the "existence of federal jurisdiction ordinarily depends on the facts as they exist when the complaint is filed") (citation omitted). Here, there is no indication that plaintiff's counsel "ordered" a product from Euro Optics' web site before the complaint was filed. If that had been the case, plaintiff surely would have mentioned that contact in its memorandum in opposition to defendant's motion to dismiss. Instead, plaintiff's counsel only mentioned the false order at oral argument, which leads the court to conclude that counsel placed the order after the fact.
Further, even if plaintiff's counsel, or for that matter any other Rhode Island resident, had ordered a product from Euro Optics' web site prior to the filing of this suit, one sale could be "the kind of 'fortuitous,' 'random,' and 'attenuated' contacts that the Supreme Court has held insufficient to warrant the exercise of jurisdiction." Toys "R" Us, 318 F.3d at 454-55 (suggesting that two sales originating from defendant's web site to residents of the forum state could simply be "fortuitous," "random," and "attenuated") (quoting Burger King Corp., 471 U.S. at 475). The Court need not analyze this particular scenario, however, because Euro Optics has never made a sale or shipped an item to a Rhode Island resident.
Third, defendant does not have "sufficient other related contacts" to the forum state. Toys "R" Us, 318 F.3d at 454. As noted repeatedly, Euro Optics has had no contacts with Rhode Island, or its residents besides the general availability of its web site. There is no evidence of sales, phone calls, email, facsimile transmissions, etc. to Rhode Island. Simply put, unlike the defendants in Cecil McBee (sales) and Hasbro (third party contract), Euro Optics, besides its web site, has no other contacts with Rhode Island or its residents. Therefore, this Court finds that Euro Optics has not purposefully availed itself of the privilege of conducting business in the forum state and recommends that Euro Optics' motion to dismiss be granted.
The Court need not address the Gestalt factors because purposeful availment cannot be satisfied.
III. Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(3)
Plaintiff's motion also seeks dismissal pursuant to Fed.R.Civ.P. 12(b)(3). See Euro Optics' Motion to Dismiss. Fed.R.Civ.P. 12(b)(3) permits the dismissal on the grounds that a case was filed in the improper venue. Euro Optics' memorandum, however, provides no argument under Fed.R.Civ.P. 12(b)(3). Further, at the July 7, 2003 hearing, Euro Optics waived any arguments it had under Fed.R.Civ.P. 12(b)(3). Therefore, this Court will not address Fed.R.Civ.P. 12(b)(3), particularly where the motion should be granted pursuant to Fed.R.Civ.P. 12(b)(2).
Conclusion
For the reasons stated, I recommend that the District Court grant Euro Optics motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(2). I also reserve decision on the motion to strike should it be necessary after the District Court acts on the Report and Recommendation. Any objection to this R R must be specific and must be filed with the Clerk of Court within ten (10) days of its receipt. Fed.R.Civ.P. 72(b); Local Rule 32. Failure to file specific objections in a timely manner constitutes a waiver of the right to review by the District Court and the right to appeal the District Court's decision. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1990); Park Motor Mart. Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).