The opinion of the court was delivered by: KIMBA M. WOOD
Plaintiff corporation is engaged in the business of providing exercise instruction, of training exercise instructors, and of providing exercise facilities and equipment -- all in accordance with the exercise techniques developed by Joseph Pilates during the 1920's. Plaintiff owns two registered marks that make explicit reference to the Pilates name -- the service mark "Pilates," which designates "exercise instruction services," and the service mark "Pilates Studio," which designates "facilities for exercise and physical conditioning." (Def. Reply Mem., Ex. 1.) Plaintiff alleges that defendants have infringed Pilates' marks in violation of, inter alia, the Lanham Trademark Act of 1946 ("Lanham Act"), 15 U.S.C. § 1015, et seq., by naming their corporation the Pilates Institute, and by selling videos, drawings, and equipment purporting to teach the Pilates Method. (Complaint PP 18-19.) Plaintiff also asserts that the infringement has occurred and continues to occur in the Southern District of New York. (Complaint PP 4-5.)
It is well-established that when motions are made pursuant to Rule 12, the plaintiff's complaint and affidavits are to be construed, and any doubts are to be resolved, in the light most favorable to the plaintiff. Editorial Musical Latino Americana, S.A. v. Mar Int'l Records, Inc., 829 F. Supp. 62, 64 (S.D.N.Y. 1993). Although the plaintiff benefits from favorable construction of his or her submissions, it is well settled that the plaintiff also bears the burden of proving a prima facie case for jurisdiction over a defendant in order to survive a motion to dismiss.
A.I. Trade Finance, Inc. V. Petra Bank, 989 F.2d 76, 79-80 (2d Cir. 1993); see also Editorial Musical Latino Americana, S.A., 829 F. Supp. at 64; Dave Guardala Mouthpieces, Inc. v. Sugal Mouthpieces, Inc., 779 F. Supp. 335, 336-37 (S.D.N.Y. 1991). Plaintiff will be found to have met his or her burden even if the moving party makes contrary allegations that place in dispute the factual basis of plaintiff's prima facie case. National Cathode Corp. v. Mexus Co., 855 F. Supp. 644, 646 (S.D.N.Y. 1994).
Exactly what is necessary to establish a prima facie case of personal jurisdiction varies somewhat depending on the procedural posture of the particular case. Because the parties in this case have engaged in some discovery on the issue of jurisdiction, (Pl. Ex. C at 3), plaintiff's prima facie case must be factually supported. Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.), cert. denied, 498 U.S. 854, 112 L. Ed. 2d 116, 111 S. Ct. 150 (1990); accord Palmieri v. Estefan, 793 F. Supp. 1182, 1186 (S.D.N.Y. 1992). Yet where, as here, the defendant challenges only the legal sufficiency of the plaintiff's factual allegation by filing a Rule 12(b) motion, a plaintiff's obligation generally is easiest to fulfill, for it need persuade the court only that its factual allegations constitute a prima facie showing of jurisdiction.
Ball, 902 F.2d at 197.
To determine the existence of personal jurisdiction over a non-domiciliary in a federal question case, this court applies the long-arm statute of the forum state. Editorial Musical Latino Americana, S.A., 829 F. Supp. at 64; Dave Guardala Mouthpieces, Inc., 779 F. Supp. at 337. New York's long-arm statute provides, in relevant part:
(a)...As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent:
(1) transacts any business within the state or contracts anywhere to supply goods or services in the state; or
(2) commits a tortious act within the state, except as to a cause of action for defamation of ...