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BELLEPOINTE, INC. v. KOHL'S DEP'T STORES

September 4, 1997

BELLEPOINTE, INC., Plaintiff, against KOHL'S DEPARTMENT STORES, INC., Defendant.


The opinion of the court was delivered by: MOTLEY

 Defendant Kohl's Department Stores has moved to dismiss this case on the grounds that it is not subject to personal jurisdiction in the state of New York. The court grants the motion and dismisses the case.

 BACKGROUND

 This is a copyright infringement case in which plaintiff Bellepointe, Inc., a garment manufacturer, has alleged that defendant Kohl's Department Stores, Inc., a manufacturer and seller of women's garments, has infringed its copyright in certain textile designs. Plaintiff is an Ohio corporation, and defendant is incorporated in Delaware with its principal place of business in Wisconsin. According to an affidavit filed on behalf of defendant by its Vice President and General Counsel, Kohl's, which operates a large number of stores *fn1" in several Midwestern states, owns no stores in New York, nor does it own any in states proximate thereto. (Sygred Decl. P4). It has no mailing address, telephone number or bank account in New York, no officers or employees who reside in New York, and it does not derive substantial revenue from goods used or services rendered in New York. (Sygred Decl. P6-7, 9). Moreover, the allegedly infringing sweaters were neither designed, made nor sold in New York, and, given the distance between New York and Kohl's closest store, it is unlikely that any of the infringing sweaters were purchased by New York residents. (Sygred Decl. P10-11).

 However, plaintiff has identified one significant contact which defendant has had with the state of New York--in February of 1996, defendant had obtained a license to transact business in the state (Meyer Aff. P2). When defendant was notified by plaintiff of this fact, it promptly discontinued its license, but it is undisputed that the license was effective at the time that the alleged infringing acts took place.

 DISCUSSION

 I. Motion to Dismiss for Lack of Personal Jurisdiction

 In the words of the Second Circuit:

 
In deciding a pretrial motion to dismiss for lack of personal jurisdiction a district court has considerable procedural leeway. It may determine the motion on the basis of affidavits alone; or it may permit discovery in aid of the motion; or it may conduct an evidentiary hearing on the merits of the motion. If the court chooses not to conduct a full-blown evidentiary hearing on the motion, the plaintiff need make only a prima facie showing of jurisdiction through its own affidavits and supporting materials. Eventually, of course, the plaintiff must establish jurisdiction by a preponderance of the evidence, either at a pretrial evidentiary hearing or at trial. But until such a hearing is held, a prima facie showing suffices, notwithstanding any controverting presentation by the moving party, to defeat the motion.

 Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981)(citations omitted).

 In this case, the court has neither allowed discovery to proceed, nor has it conducted a "full-blown evidentiary hearing." Thus, the plaintiff only needs to make a prima facie showing of jurisdiction on the basis of its pleadings and supporting papers in order to defeat the motion. The court must construe plaintiff's papers in the light most favorable to it and resolve all doubts in its favor. CutCo Indus., Inc., v. Naughton, 806 F.2d 361, 365 (2d Cir. 1986), Hoffritz for Cutlery, Inc. v. Amajac Ltd., 763 F.2d 55, 57 (2d Cir. 1985).

 II. Standard for Motion to Dismiss

 In federal question cases, a district court looks to the law of the state in which it sits in order to determine whether or not there is personal jurisdiction, unless a federal statute provides for national service of process. FED. R. CIV. P.4(e); Art Leather Manufacturing Co., Inc. v. Albumx Corp., 888 F. Supp. 565, 567 n.2 (S.D.N.Y. 1994); Kinetic Instruments, Inc. v. Lares, 802 F. Supp. 976, 981 (S.D.N.Y. 1992). If the state law does allow jurisdiction to be exercised over the defendant, the court must then determine whether or not the exercise of jurisdiction ...


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